NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________ No. 22-1736 _________________ STEPHEN DRIZOS, Appellant
v.
PNC INVESTMENTS LLC, DBA PNC Investments ________________
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2:19-cv-01651) District Judge: Hon. Cathy Bissoon ________________ Submitted Under Third Circuit L.A.R. 34.1(a) May 17, 2023
Before: SHWARTZ, MONTGOMERY-REEVES, and ROTH, Circuit Judges.
(Opinion filed August 3, 2023) ___________ OPINION* ___________ MONTGOMERY-REEVES, Circuit Judge.
Stephen Drizos appeals the District Court’s order granting summary judgment in
favor of his former employer, PNC Investments (“PNC”). Drizos brought claims alleging
* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. violations of the Americans with Disabilities Act (“ADA”), the Family and Medical
Leave Act (“FMLA”), and the Pennsylvania Human Relations Act (“PHRA”). Because
the District Court correctly held that PNC proffered a nondiscriminatory, non-pretextual
reason for firing Drizos and granted summary judgment for PNC, we will affirm.
I. BACKGROUND
PNC hired Drizos in 2008, and he became a Financial Advisor (“FA”) in 2015. In
2016, Wendy O’Brien became Drizos’s supervisor. J.A. 466. As an FA, Drizos worked
out of different PNC branches, including PNC’s Lebanon Shops Branch, which Amy
Rhome-Smith managed.
Drizos suffers from alcoholism. At some point before February 2017, Drizos
began having issues with absences and tardiness. After these issues arose, Drizos took
intermittent FMLA leave to treat his alcoholism from February 11 through March 9,
2017. Drizos continued to work and perform his normal functions during his intermittent
FMLA leave.
In May 2017, Drizos missed several meetings at the Lebanon Shops Branch.
O’Brien gave Drizos a verbal warning that “his attendance must improve and that he
needed to maintain his regular in-person hours” at the Lebanon Shops Branch. J.A. 904.
Drizos continued to struggle with his sobriety and began looking at inpatient programs.
From May 30 through August 30, 2017, Drizos took a full-time leave of absence
covered by some combination of short-term disability, long-term disability, and FMLA
leave. Drizos did not work during his full-time leave of absence and relied on others to
manage his portfolio of accounts.
2 When Drizos returned from leave, he resumed his role as an FA with the same pay
and benefits. But about 70 of his managed accounts had become delinquent. Drizos was
directed to bring his delinquent accounts up to date. Drizos did not ask for help in
updating his accounts, but O’Brien gave Drizos multiple extensions to complete this
work.
Additionally, O’Brien instituted weekly check-ins to keep Drizos “on the right
track.”1 J.A. 306. Drizos was the only FA required to have these weekly check-ins.
O’Brien also required Drizos to notify her and branch managers where he would be
throughout the day.
On October 23, 2017, Drizos was involved in a car accident, for which he was
hospitalized until midday October 24. Drizos worked from home on October 25. Drizos
did not inform O’Brien that he would be out on October 24 or working from home on
October 25. Following the accident, O’Brien instituted a call-out procedure, which
required Drizos to notify both her and Rhome-Smith if he was not going to be in the
office by 9 a.m.
In January 2018, Drizos received another verbal warning for violating the call-out
procedure. In mid-February, Drizos was over 30 minutes late to a quarterly sales
meeting. O’Brien again spoke with Drizos about his attendance, tardiness, and violations
1 Drizos insists that O’Brien instituted the weekly check-ins because of his leave and alcoholism. But Drizos has not pointed to anything in the record to support this contention. The portions of the record cited by the parties show that Drizos missed meetings and received counseling about his attendance before he took his first full-time leave. 3 of the call-out procedure. On April 11, Drizos missed work and did not call O’Brien or
Rhome-Smith in advance.2
Sometime in May, Drizos told O’Brien that he was planning to take another leave
of absence to treat his alcoholism. Drizos told O’Brien that he needed time to figure out
the details and organize his affairs before he went out.
On May 24, Drizos again violated the call-out procedure. O’Brien again
counseled Drizos on the proper call-out procedure. On May 31, Drizos missed work to
care for his child, but he did not let O’Brien or Rhome-Smith know until 10:48 a.m., in
violation of the call-out procedure.3 On June 7, O’Brien gave Drizos a final written
warning for violating the call-out procedure on May 31. J.A. 472, 853–55.
On June 25, Drizos did not report for work and did not contact O’Brien or Rhome-
Smith before his absence. On June 28, O’Brien met with Drizos to discuss his violation
of the final written warning and to inform Drizos that he was fired.4 At that time, Drizos
still had not finalized his plans for rehab.
2 Drizos does not dispute that he did not call out on April 11. Instead, he explains that O’Brien knew that his daughter was born on April 10 and that he would be out that day for her birth. Drizos does not contend O’Brien knew he would be out on April 11 or that she excused compliance with the call-out procedure. 3 Drizos argues that his failure to call out should be excused because he decided not to take parental leave following his daughter’s birth. Drizos understood that O’Brien would be flexible if he needed to take time off to be with his daughter because he was foregoing parental leave. Drizos has not pointed to anything in the record to suggest that any flexibility in time off excused him from following the call-out procedure. 4 Drizos admitted he “had issues with attendance.” J.A. 415.
4 Drizos filed his complaint on December 20, 2019. Drizos brought claims under
the ADA and the PHRA for discrimination, retaliation, and failure to accommodate; and
under the FMLA for retaliation and interference. PNC moved for summary judgment on
each of Drizos’s claims. The District Court granted PNC’s motion for summary
judgment. Drizos appealed.
III. DISCUSSION5
Drizos asserts seven claims against PNC. Drizos alleges that his termination
resulted from retaliation and discrimination under the ADA and PHRA (Counts I, III, VI,
VII). Alternatively, Drizos alleges that PNC did not accommodate his disabilities under
the ADA and PHRA (Counts II, VI). Finally, Drizos contends that PNC interfered with
his FMLA leave and retaliated against him for invoking his FMLA rights (Counts IV, V).
The District Court granted summary judgment in favor of PNC on each of Drizos’s
claims. For the reasons explained below, we will affirm the District Court.
A. Discrimination under the ADA and PHRA
Drizos contends that the District Court improperly granted summary judgment for
PNC on his discrimination claims under the ADA and the PHRA.
5 The District Court had jurisdiction over this case under 28 U.S.C. § 1331. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of summary judgment for PNC. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). In reviewing a motion for summary judgment, we “[d]raw[] all reasonable inferences in favor of the party against whom judgment is sought” and will affirm the grant of the motion “only when no issues of material fact exist and the party for whom judgment is entered is entitled to judgment as a matter of law.” Prusky v. Reliastar Life Ins. Co., 445 F.3d 695, 699 (3d Cir. 2006) (citation omitted).
5 “To establish a prima facie case of discrimination, a plaintiff must show (1) that he
is disabled within the meaning of the ADA [or PHRA], (2) that he is otherwise qualified
for the job, with or without reasonable accommodations, and (3) that he was subjected to
an adverse employment decision as a result of discrimination.” Sulima v. Tobyhanna
Army Depot, 602 F.3d 177, 185 (3d Cir. 2010) (citing Taylor v. Phoenixville Sch. Dist.,
184 F.3d 296, 306 (3d Cir. 1999)).6
If a plaintiff makes a prima facie case, the burden shifts to the employer to supply
a legitimate, nondiscriminatory reason for its action. Fowler v. AT&T Inc., 19 F.4th 292,
299 (3d Cir. 2021) (citing Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 668
(3d Cir. 1999)). If the employer does, the burden shifts back to the plaintiff to show that
the response is merely a pretext, “meaning evidence that could cause a jury ‘either [to]
(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.’” Id. (alterations in original) (citing Walton, 168 F.3d at
668).
A plaintiff “cannot simply show that the employer’s decision was wrong or
mistaken[.]” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (citing first Ezold v. v.
Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 531, 533 (3d Cir. 1992); and then
6 The same legal standard applies to disability discrimination claims under both the ADA and PHRA. See Colwell v. Rite Aid Corp., 602 F.3d 495, 499 n.3 (3d Cir. 2010) (citations omitted).
6 Villanueva v. Wellesley College, 930 F.2d 124, 131 (1st Cir. 1991)).7 Instead, a plaintiff
must point to “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them ‘unworthy of credence,’” leading to the
inference that the proffered reason was not the actual motivation for the employer’s
action. Id. at 764–65 (quoting Ezold, 983 F.2d at 531).
Drizos argues that he made a prima facie case of disability discrimination under
the ADA and PHRA, and that PNC’s proffered, nondiscriminatory reason was pretextual.
The District Court concluded that even if Drizos made a prima facie case, PNC offered a
nondiscriminatory reason for the termination and that Drizos did not point to anything in
the record showing that this reason was pretextual. We proceed as the District Court did
and assume without deciding that Drizos made a prima facie showing for his ADA and
PHRA discrimination claims.
Here, PNC asserts that it fired Drizos for violating his final written warning, which
he received after repeated violations of the call-out procedure. The record shows that
Drizos had attendance issues and repeatedly violated the call-out procedure. Drizos does
not point to anything in the record, including his own declaration and deposition
testimony, to dispute that he violated his final written warning by not complying with the
call-out procedure in June 2018. Indeed, during his deposition, Drizos admitted that he
did not follow the call-out procedure after his final written warning. Thus, PNC has
7 ADA and Title VII cases are evaluated under the same burden-shifting framework. Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007). 7 provided a legitimate nondiscriminatory reason for terminating Drizos, and the burden
shifts to Drizos to show that reason was pretextual.
Drizos argues that six facts show pretext: (1) he never had issues with attendance;
(2) O’Brien placed him on heightened supervision; (3) he had to bring his managed
accounts up to date after his leave of absence; (4) the April 11 write-up for violating the
call-out procedure should have been excused since O’Brien knew he was out with his
newborn; (5) his absences on October 23 and 24 should have been excused because
Drizos had been in a car accident; and (6) he was the only FA required to follow the call-
out procedure. Drizos’s attempts to show pretext fail.
Drizos argues that neither O’Brien nor PNC had any issue with his attendance
before his first full-time leave of absence. In his brief, Drizos cites to his entire
declaration to support this point. But Drizos’s declaration does not establish that his
attendance issues started after his full-time leave of absence. In fact, as PNC points out,
the record shows that Drizos missed several meetings in May 2017, and O’Brien gave
Drizos a verbal warning that “his attendance must improve and that he needed to
maintain his regular in-person hours.” J.A. 904. Drizos has not pointed to anything in
the record to dispute these facts.
Drizos also argues that O’Brien placed him on heightened supervision without
justification, which shows O’Brien’s hostility towards him and that his firing was
pretextual. Drizos points to an email where PNC employees set up a meeting to “discuss
the merits/risks of placing [Drizos] on heightened supervision.” J.A. 799. But a
discussion about placing Drizos on heightened supervision does not show that PNC
8 placed him on heightened supervision. And Drizos has not pointed to anything in the
record, including his own testimony or declaration, showing that PNC placed him on
heightened supervision. Moreover, PNC never used Drizos’s purported placement on
heightened supervision as a reason for firing him. Therefore, any argument that his
purported placement on heightened supervision shows pretext fails.
Drizos also argues that having to bring his managed accounts up to date after his
leave of absence shows pretext. Drizos does not explain how having to bring his
managed accounts up to date after his leave of absence shows pretext, especially because
O’Brien granted Drizos multiple extensions to complete this work. In fact, the managed
accounts delinquency appears unrelated to the reason given for his termination. Nothing
in the record shows that PNC disciplined, let alone fired, Drizos for anything related to
his delinquent accounts. Nor does PNC rely on his delinquent accounts as a reason for
his termination. Thus, Drizos’s attempt to carry his burden with this argument fails.
Drizos also contends that the write-ups and warnings for his October 23 and 24,
2017, April 11, 2018, and May 31, 2018, all show pretext because each of the absences
was excused. But Drizos’s argument fails in each of these instances for the same reason.
PNC does not argue that the absences were unexcused. More importantly, nothing in the
records shows Drizos was written up for any of these absences. Instead, the undisputed
record confirms that Drizos was written up in April and May for violating the call-out
procedure and faced no discipline for his October absences. Moreover, even if Drizos’s
failure to call out was justified, this is immaterial because an employer does not have to
be factually correct in the reasons it gives for firing an employee; it simply must be non-
9 discriminatory. See Fuentes, 32 F.3d at 765 (“To discredit the employer’s proffered
reason, however, the plaintiff cannot simply show that the employer’s decision was
wrong or mistaken, since the factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise, shrewd, prudent, or
competent.” (citations omitted)). To the extent Drizos argues that PNC’s reliance on
minor infractions of the call-out procedure proves pretext, he is wrong because an
employer’s decision to fire someone does not need to be a good or even reasonable
business decision; it simply cannot be because Drizos was disabled. Id. Drizos does not
carry his burden to show pretext with this argument.
Finally, Drizos argues the call-out procedure itself proves pretext because he was
the only FA who was subject to it. But Drizos has provided no citations to the record to
support the theory that PNC treated him differently than other employees with attendance
issues.
In sum, we agree with the District Court that PNC met its burden to articulate a
nondiscriminatory reason for Drizos’s termination and that Drizos failed to point to
evidence in the record showing that PNC’s proffered reason was pretextual. Thus, we
will affirm the District Court’s grant of summary judgment.
B. Retaliation under the ADA, PHRA, and FMLA
Drizos alleges that the District Court improperly granted summary judgment to
PNC on Drizos’s claims for retaliation in violation of the ADA, FMLA, and PHRA.
“To prevail on a retaliation claim . . . , the plaintiff must prove that (1) [he]
invoked [his] right to [] leave, (2) [he] suffered an adverse employment decision, and
10 (3) the adverse action was causally related to [his] invocation of rights.” Lichtenstein v.
Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301–02 (3d Cir. 2012) (citing Erdman v.
Nationwide Ins. Co., 582 F.3d 500, 508–09 (3d Cir. 2009)).8 Claims based on
circumstantial evidence, like the one here, are assessed under the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Lichtenstein, 691 F.3d at 302.
Under the McDonnell Douglas framework, the plaintiff has the initial burden of
establishing a prima facie case. Id. To establish a prima facie case, the plaintiff “must
point to evidence in the record sufficient to create a genuine factual dispute about each of
the three elements of [his] retaliation claim: (a) invocation of [a] right, (b) termination,
and (c) causation.” Id. (citing first Erdman, 582 F.3d at 508–09; and then Conoshenti v.
Public Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004)). If a plaintiff can do so,
the burden of production shifts to the employer to “articulate some legitimate,
nondiscriminatory reason” for its decision. Id. (quoting McDonnell Douglas, 411 U.S. at
802). If an employer meets this burden, the plaintiff “must point to some evidence, direct
or circumstantial, from which a factfinder could reasonably . . . disbelieve [the
employer’s] articulated legitimate reasons.” Id. (first alteration in original) (quoting
Fuentes, 32 F.3d at 764).
8 The standard for retaliation under the ADA, FMLA, and PHRA is substantially the same. Lichtenstein, 691 F.3d at 302–03; Marra v. Phila. Hous. Auth., 497 F.3d 286, 300–01 (3d Cir. 2007); Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015); Williams v. Phila. Hous. Auth. Police Dep’t., 380 F.3d 751, 759 (3d Cir. 2004).
11 Even if Drizos could establish a prima facie case, his argument fails. Drizos again
argues that the reason for his termination—violating the call-out procedure after
receiving a final warning—is pretextual. Drizos relies on the same arguments discussed
and disposed of above. As explained, he has not met his burden. Therefore, we will
affirm the District Court’s grant of summary judgment on his retaliation claims.
C. Failure to Accommodate under the ADA and PHRA
Drizos brought a claim for failure to accommodate under the ADA and PHRA,
alleging that he requested reasonable accommodation for his alcoholism when he
requested and applied for leave under the FMLA in July of 2018. A plaintiff bringing a
failure-to-accommodate claim must establish: “(1) he was disabled and his employer
knew it; (2) he requested an accommodation or assistance; (3) his employer did not make
a good faith effort to assist; and (4) he could have been reasonably accommodated.”
Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir. 2017) (quoting Armstrong v.
Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246 (3d Cir. 2006)) (citing Colwell, 602 at
504).
The District Court granted summary judgment for PNC on this claim, holding that
Drizos “[did] not even attempt” to “satisfy the third and fourth prongs” of his prima facie
case. J.A. 10.
On appeal, Drizos argues that PNC did “nothing to interact with him[] despite
being familiar with the interactive process.” Drizos’s Op. Br. at 47 (internal citations
omitted). Because Drizos did not make this argument regarding the third prong to the
12 District Court, we will not consider it for the first time on appeal.9 Taha v. Cnty. of
Bucks, 862 F.3d 292, 299 (3d Cir. 2017) (“[A]bsent exceptional circumstances, issues not
raised before the district court are waived on appeal.” (alteration in original) (quoting
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir.
2007))). Moreover, Drizos still does not make any argument regarding the fourth
prong—whether he could have been reasonably accommodated. Because Drizos
forfeited any argument about the third prong and makes no argument on the fourth prong
of his ADA and PHRA failure-to-accommodate claims, Drizos’s claims fail. Thus, we
will affirm the District Court’s grant of summary judgment as to these claims.
D. FMLA Interference
Drizos argues that the District Court erred by granting summary judgment for
PNC on his FMLA interference claim. Drizos alleges that during his first full-time leave
of absence, “PNC Investments allowed his work to accumulate while he was on leave and
then required him to complete it immediately upon his return.” Drizos’s Op. Br. at 52.
Drizos asserts that this “significantly increased his workload and altered his job duties”
so he did not return to an “equivalent” position from the one he left. Id.
“When an employee returns from FMLA leave, the employer must restore the
employee to the same or equivalent position he held, with equivalent benefits and with
9 Judge Shwartz would not rely on forfeiture as the reason to affirm but rather would affirm because the record viewed in Drizos’s favor does not support his failure to accommodate claims. Among other things, the record shows that PNC had accommodated him in the past and was working with him regarding options for his final leave request. 13 conditions of employment comparable to those he had when he left.” Ross v. Gilhuly,
755 F.3d 185, 191 (3d Cir. 2014) (citing 29 U.S.C. § 2614(a)). An equivalent position is:
one that is virtually identical to the employee’s former position in terms of pay, benefits
and working conditions, including privileges, perquisites and status. It must involve the
same or substantially similar duties and responsibilities, which must entail substantially
equivalent skill, effort, responsibility, and authority. 29 C.F.R. § 825.215(a).
The parties do not dispute that Drizos’s pay, benefits, and position stayed the
same. Before taking leave, Drizos’s job duties included reviewing managed accounts.
Though he typically would not have to review 70 delinquent accounts, O’Brien gave
Drizos multiple extensions to complete this task. The FMLA provides that an employer
must reinstate an employee to an equivalent position after leave, not that their leave has
no impact on their work.
Asking Drizos to perform tasks that he traditionally performed but had
accumulated in his absence, while receiving the same pay and in the same position and
multiple extensions to complete this work, does not constitute interference under the
FMLA. Moreover, if PNC had transferred Drizos’s accounts while he was out to another
FA, this would have substantially affected his pay and denied Drizos “his main source of
compensation while he was on leave.” J.A. 46–47. Accordingly, we will affirm the
District Court’s grant of summary judgment as to Drizos’s FMLA Interference claim.
IV. CONCLUSION
For the reasons discussed above, we will affirm the District Court.