Frederick Cullen v. Select Medical Corporation ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 18-2912
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FREDERICK CULLEN,
Appellant
v.
SELECT MEDICAL CORPORATION
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-17-cv-03479)
District Judge: Hon. Gene E. K. Pratter
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Argued: July 2, 2019
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Before: McKEE, PORTER, and RENDELL, Circuit Judges.
(Filed: August 22, 2019)
Caren N. Gurmankin
Laura C. Mattiacci [Argued]
Console Mattiacci Law
1525 Locust Street
9th Floor
Philadelphia, PA 19102
Counsel for Appellant
George H. Knoell, III [Argued]
Thomas J. Zimmerman
Kane Pugh Knoell Troy & Kramer
510 Swede Street
Norristown, PA 19401
Counsel for Appellee
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OPINION
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PORTER, Circuit Judge.
Frederick Cullen was fired by his employer, Select Medical Corporation, in early
2016. Cullen sued Select Medical, alleging that his firing was in retaliation for an ex-
tended medical leave that he took starting in December 2015. Although the evidence
shows that Select Medical considered firing Cullen before it (or even Cullen) knew that
he had any medical issues, its explanation for his firing shifted over time. Thus, Select
Medical’s explanation may have been pretextual and a jury should have been permitted to

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
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consider whether Cullen’s firing was retaliatory. So we will reverse the District Court’s
grant of summary judgment for Select Medical.
I
Cullen started working for Select Medical’s predecessor company in 1997. As a
member of Select Medical’s real-estate group, he helped secure leases and manage con-
struction for the outpatient division. He received generally good performance reviews and
was never formally disciplined. In early 2015, Select Medical’s management was consid-
ering acquiring Physiotherapy Associates, a rehabilitation company with similar opera-
tions and personnel.
In an internal memo written in July 2015, Randall Watts—Cullen’s supervisor—
outlined his thoughts on restructuring the real-estate division. Watts evaluated each em-
ployee in his group, including Cullen. Watts discussed Cullen’s strengths but also noted
some weaknesses. In the short term, Watts recommended elevating another employee to
director. The longer term presented a “more difficult decision,” but Watts suggested ulti-
mately replacing Cullen.
Months after Watts drafted this memo, Cullen started experiencing health prob-
lems. By December, they became serious enough to require heart surgery. Cullen took
leave from work while he recovered, returning in March 2016. Cullen eased back into
work while he convalesced, leaving early three days a week to attend rehabilitation.
Around the time of Cullen’s return, Select Medical’s acquisition of Physiotherapy
Associates was finalized. Three weeks later, Cullen was fired. After his termination, Cul-
3
len sued Select Medical, claiming that he was fired because of his health issue. The par-
ties engaged in extensive discovery, and Cullen deposed several Select Medical employ-
ees about the circumstances surrounding his termination. After discovery was complete,
Select Medical moved for summary judgment, which the District Court granted. Cullen
now appeals that order.
II
“We exercise plenary review of the District Court’s orders granting summary
judgment.” Sikkelee v. Precision Airmotive Corp., 907 F.3d 701, 708 (3d Cir. 2018) (cita-
tion omitted). “We apply the same standard as the District Court, viewing facts and draw-
ing all reasonable inferences in the nonmovant’s favor.” Id. (citation omitted). Summary
judgment is appropriate where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).1
Cullen brings claims under the Americans with Disabilities Act and Family Medi-
cal Leave Act, and we analyze these claims under the familiar burden-shifting framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 This framework
1
The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdic-
tion under 28 U.S.C. § 1291.
2
Cullen also brought a claim under the Pennsylvania Human Relations Act, which courts
evaluate under the same legal standard as the Americans with Disabilities Act. Kelly v.
Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). Cullen agreed that his state-law claim
could succeed only if his federal-law claim succeeded, so the District Court did not inde-
pendently analyze it.
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presents a three-step process.
To start, a plaintiff must make a prima facie case. If the plaintiff makes this show-
ing, “the burden shifts to the employer to provide a legitimate non-retaliatory reason for
its conduct.” Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 257 (3d Cir. 2017). If
the employer provides such a reason, then “the burden shifts back to the plaintiff ‘to con-
vince the factfinder both that the employer’s proffered explanation was false [that is, a
pretext] and that retaliation was the real reason for the adverse employment action.’” Id.
(alteration in original) (quoting Moore v. City of Phila, 461 F.3d 331, 342 (3d Cir.
2006)). To prove pretext on this last step, the plaintiff must “point to some evidence, di-
rect or circumstantial, from which a factfinder could reasonably either (1) disbelieve the
employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory
reason was more likely than not a motivating or determinative cause of the employer’s
action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
III
Cullen makes a number of arguments for why the District Court wrongly granted
summary judgment. Most persuasively, he argues that the District Court should have con-
sidered a host of inconsistencies in Select Medical’s explanation for Cullen’s firing—
such as why the decision was made and who made it—that should have precluded sum-
mary judgment. We highlight the most relevant of those inconsistencies here.
First, Select Medical offered inconsistent explanations of why it fired Cullen. For
instance, in its interrogatory responses, Select Medical said his performance was a factor.
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Yet Watts and another Select Medical executive, Michael Malatesta, testified that it was
not.
Second, Select Medical offered inconsistent explanations of who made the deci-
sion to fire Cullen. In its interrogatory responses, Select Medical explained that Watts
and Malatesta decided to fire Cullen, and that Daniel Bradley (another executive) and
John Saich (the head of human resources) signed off on the decision. But during their
depositions, everyone but Watts denied making the termination decision. And for his
part, Watts testified that he was the sole decisionmaker. So the record evidence shows
that Select Medical provided different explanations of how many employees were in-
volved in the decision to fire Cullen.
Third, Select Medical also offered inconsistent explanations of when the decision
to fire Cullen was made. It its brief, Select Medical urges that “the decision to terminate
Mr. Cullen and eliminate his position clearly pre-dated Mr. Cullen’s use of medical
leave.” Select Medical Br. 25. But Watts and Malatesta both testified that the decision
was made in April 2016, after Cullen returned from medical leave. How the jury weighs
these competing explanations is important, as the timing of events “can be probative of
causation.” Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003).
“Our precedent requires more than a mere possibility that a trier of fact might dis-
believe an employer’s explanation for its employment decision; it requires that the plain-
tiff offer some evidence that would support the trier of fact’s disbelief.” Latessa v. New
Jersey Racing Comm’n, 113 F.3d 1313, 1326 (3d Cir. 1997). Here, Cullen has offered
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that evidence. And that evidence shows the sort of “weaknesses, implausibilities, incon-
sistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable factfinder could rationally find them ‘unworthy of cre-
dence.’” Fuentes, 32 F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen,
983 F.2d 509, 531 (3d Cir. 1992)).
*****
Select Medical’s explanations for Cullen’s firing were varied enough to undermine
its legitimate, non-discriminatory reason for his termination. So we will reverse the Dis-
trict Court’s summary judgment grant in favor of Select Medical and remand for further
proceedings consistent with this opinion.
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