Case 1:18-cv-01266-CFC-SRF Document 154 Filed 02/05/21 Page 1 of 22 PageID #: 3460
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
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`PEGGY SNYDER,
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`Plaintiff,
`
`v.
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`E.I. DUPONT de NEMOURS, INC.
`AND COMPANY,
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`Defendant.
`
`Civil Action No. 18-1266-CFC
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`Gary W. Aber, ABER, BAKER & OVER, Wilmington, Delaware
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`Counsel for Plaintiff
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`Margaret M. DiBianca, CLARK HILL PLC, Wilmington, Delaware; John M.
`Nolan, John M. Nolan, III, JACKSON LEWIS PC, Philadelphia, Pennsylvania
`
`Counsel for Defendant
`
`MEMORANDUM OPINION
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`February 5, 2021
`Wilmington, Delaware
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
`
`PEGGY SNYDER,
`
`Plaintiff,
`
`v.
`
`E.I. DUPONT de NEMOURS, INC.
`AND COMPANY,
`
`Defendant.
`
`Civil Action No. 18-1266-CFC
`
`Gary W. Aber, ABER, BAKER & OVER, Wilmington, Delaware
`
`Counsel for Plaintiff
`
`Margaret M. DiBianca, CLARK HILL PLC, Wilmington, Delaware; John M.
`Nolan, John M. Nolan, III, JACKSON LEWIS PC, Philadelphia, Pennsylvania
`
`Counsel for Defendant
`
`MEMORANDUM OPINION
`
`February 5, 2021
`Wilmington, Delaware
`
`
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`Case 1:18-cv-01266-CFC-SRF Document 154 Filed 02/05/21 Page 2 of 22 PageID #: 3461
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`cOLF.coNNOLL y
`UNITED ST A TES DISTRICT JUDGE
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`Plaintiff Peggy Snyder alleges that Defendant E.I. DuPont de Nemours, Inc.
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`terminated her employment in retaliation for her use of benefits under the Family
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`Medical Leave Act (FMLA) in violation of29 U.S.C. § 2615(2). D.I. 15 ,r 80.
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`Before me is DuPont's motion for summary judgment. D.l. 123.
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`I.
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`BACKGROUND
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`Snyder was hired as a technician with DuPont at the ~ralee Park worksite on
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`September 1, 1997. D.I. 125 ,r 1-2, D.I. 153 ,r 1-2. Her position was "mostly"
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`sedentary. D.I. 126 at A54. DuPont has a short-tenn disability plan for employees
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`who are "unable to work because of an illness or injury." D.I. 125 ,r 44; D.I. 153 ,r
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`44. From 1997 through September 2016, Snyder took approximately 20 FMLA
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`and short-term disability leaves of absence. D.l. 125 ,r 121, D.I. 153 ,r 121. Upon
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`returning to work after each of these leaves, Snyder was placed in the same or a
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`similar position with the same salary and benefits. D.l. 125 ,r 122-123, D.I. 153 ,r
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`122-123. DuPont granted every request Snyder made for a leave of absence. D.l.
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`125 ,r 121 ; D.l. 153 ,r 121.
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`On March 16, 2016, Snyder underwent posterior tibial tendon reconstruction
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`surgery on her left foot. D.l. 125 ,r 46-47; D.l. 153 ,r 46-47. Dr. Paul Kupcha
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`performed the smgery. D.I. 126 at A23. Snyder was approved for approximately
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`three months of FMLA leave to recover from her surgery, and she concurrently
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`received short-term disability pay during that time. D.I. 125 ,r 56-57; D.I. 153 ,r
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`56-57. The FMLA healthcare provider certification form produced by Dr.
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`Kupcha' s office stated that Snyder was to not bear weight for ten weeks after her
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`surgery. D.I. 125 ,r 52-53, D.I. 153 ,r 52-53. Reports from Dr. Kupcha's office
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`dated March 25, April 15, May 11, May 17, and June 2 that were provided to
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`DuPont reaffirmed that Snyder should not place weight on her injured foot. D.I.
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`125 ,I 58, 60, 69-70, 76; D.I. 153 ,r 58, 60, 69-70, 76.
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`While Snyder was on leave, DuPont's Area Manager Stephen Coughlan was
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`told by another employee, Paul Klimek, that Klimek saw Snyder walking around at
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`a pool party. D.I. 127 at A121. Klimek also stated that he heard from "two-thirds
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`of the [work]site, countless people" over a period of years that Snyder was taking
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`advantage of DuPont's short-term disability program and was acting in a manner
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`inconsistent with a need for disability leave. D.I. 127 at A190. Plant Manager Joe
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`Guerrieri, Snyder's supervisor Randall King, and Coughlan made the decision to
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`hire an investigative agency to surveil Snyder's activities. D.I. 125 ,r 63; D.I. 153 ,r
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`63. Surveillance of Snyder's actions during her recovery from foot surgery began
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`April 13, 2016. D.I. 140 at C161. Coughlan testified that the surveillance was
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`initiated to "ensur[e] that [Snyder] abided by the restrictions [of her doctor] on and
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`off-duty." D.I. 127 at A123.
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`2
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`Video surveillance conducted by the investigator in April and May 2016
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`captured Snyder (1) repeatedly climbing into her Hummer SUV and driving, (2)
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`walking around a backyard and down stairs, and (3) lifting a small child off the
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`ground. D.I. 125 ,r,r 65-68, 73-75.
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`Reports from Dr. Kupcha's practice for Snyder's May 17 and June 2 office
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`visits that were provided to DuPont stated that Snyder was to remain "non
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`weightbearing" and "no driving." D.I. 125 ,r 70, 77; D.I. 153 ,r 70, 77. During her
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`leave, Snyder told King that "all she does is lay around .. .in pain" and that she was
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`unable to "come into work and sit down." D.I. 125 ,r 82, D.I. 153 ,r 82. In a phone
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`call with King on June 16, Snyder stated that she could barely walk. D.I. 127 at
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`A136. Dr. Kupcha noted after an August 5 visit that Snyder told him she felt a
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`"sharp, stabbing, aching, dull, throbbing pain that occurs constantly," along with
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`"swelling, bruising, tingling, weakness, ... stiffness and numbness" and that her
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`symptoms were aggravated by "standing, squatting, exercise, lying in bed, stairs,
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`sitting, and walking." D.I. 125 ,r 93, D.I. 153 ,r 93.
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`Eventually, Dr. Kupcha approved Snyder to return to work on a two-hour
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`light duty schedule starting June 27, 2016. D.I. 125 ,r 88, D.I. 153 ,r 88. Snyder
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`continued to receive short-term disability payments for the hours she did not work
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`each day. D.I. 125 ,r 116; D.I. 153 ,I 116. On August 1, Dr. Kupcha released
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`Snyder to work eight hours a day with restrictions; but after Snyder explained to
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`3
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`DuPont Medical Nurse McLaughlin that "the eight hours is killing me," Dr.
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`Kupcha restricted Snyder to four-hour workdays beginning August 22. D.I. 125 ,r
`92, 98, 102; D.I. 153 ,r,r 92, 98, 102.
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`On August 17, Snyder reported to DuPont Medical that her "left foot
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`bec[a]me very pain[ful]." D.I. 125 ,r 98; D.I. 153 ,r 98. On August 18, she told
`Nurse McLaughlin that her foot was "swollen and very painful." D.I. 125 ,r 99;
`D.I. 153 ,r 99. On August 19, she told McLaughlin that her foot was "swelling."
`D.I. 125 ,r 100; D.I. 153 ,r 100. On August 19, 20, 22, and 23, the investigator
`reported that Snyder was walking without any apparent physical issues. D.I. 125 ,r
`100-102; D.I. 153 ,r 100-102. On August 25, while still receiving partial disability
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`payments from DuPont and working four-hour light duty shifts because the eight(cid:173)
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`hour shifts were "killing [her]," Snyder was recorded on surveillance walking
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`through a Wal-Mart parking lot without crutches, a boot, or a limp, getting a
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`manicure and pedicure, and mowing her lawn on a riding tractor for 90 minutes.
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`D.I. 125 ,r 98, 104-107; D.I. 153 ,r 98, 104-107.
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`On September 14, DuPont fired Snyder. D.I. 126 at A56. HR Manager
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`Cheryl Drew testified that Snyder was terminated because she "gave [DuPont]
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`inaccurate information[,] ... did not follow her own doctor's orders ... , and [did]
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`not behav[e] in a manner that's consistent with [her] recovery." D.I. 127 at A156-
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`A157. Snyder testified that Drew informed her of her termination and told her that
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`4
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`she was "observed going to Wal-Mart and getting [her] nails done" on August 25
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`and that "we don't pay people to cut their grass." D.I. 125 at A5 l. In an email
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`sent from Guerrieri to Drew memorializing the conversation that took place,
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`Guerrieri stated,
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`[Drew] told Peggy that during disability leave, we expect
`employees to accurately represent the facts regarding
`their ability to work, and that they follow their doctor's
`orders to support their recovery and eventually return to
`work. [Drew] told Peggy that she ( 1) misrepresented the
`facts to Randy and DuPont HIS and (2) she used DuPont
`disability leave for purposes that are inconsistent with her
`recovery and counter to her doctor's orders. [Drew] said
`for these two reasons, we are ending [her] employment
`effective today.
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`D.I. 127 at A208.
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`Snyder initiated this lawsuit on August 20, 2018 when she filed a six-count
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`complaint. Five counts were dismissed by stipulation. D.I. 108, 133. The
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`remaining claim, Count II, alleges that DuPont terminated Snyder in retaliation for
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`her use ofFMLA leave in violation of29 U.S.C. § 2615(2).
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`II. LEGAL STANDARD
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`A court must grant summary judgment "if the movant shows that there is no
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`genuine dispute as to any material fact and the movant is entitled to judgment as a
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`matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of
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`demonstrating the absence of any genuine issues of material fact. Celotex Corp. v.
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`Catrett, 411 U.S. 317,323 (1986). If the burden of persuasion at trial would be on
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`5
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`the non-moving party, then the moving party may satisfy its burden of production
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`by pointing to an absence of evidence supporting the non-moving party's case,
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`after which the burden of production then shifts to the non-movant to demonstrate
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`the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v.
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`Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Williams v. Borough of West
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`Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). "In an employment
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`discrimination case, the burden of persuasion on summary judgment remains
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`unalterably with the employer as movant." Doe v. C.A.R.S. Protection Plus, Inc.,
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`527 F.3d 358, 362 (3d Cir. 2008).
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`Material facts are those "that could affect the outcome" of the
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`proceeding. Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). "[A]
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`dispute about a material fact is genuine if the evidence is sufficient to permit a
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`reasonable jury. to return a verdict for the non-moving party." Id. (internal
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`quotation marks omitted). A non-moving party asserting that a fact is genuinely
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`disputed must support such an assertion by: "(A) citing to particular parts of
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`materials in the record, including depositions, documents, electronically stored
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`information, affidavits or declarations, stipulations, ... admissions, interrogatory
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`answers, or other materials; or (B) showing that the materials cited [by the
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`opposing party] do not establish the absence ... of a genuine dispute .... " Fed. R.
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`Civ. P. 56(c)(l). The non-moving party's evidence "must amount to more than a
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`6
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`scintilla, but may amount to less (in the evaluation of the court) than a
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`preponderance." Williams, 891 F.2d at 460-61.
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`The court must view the evidence in the light most favorable to the non(cid:173)
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`moving party and draw all reasonable inferences in that party's favor. Wishkin v.
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`Potter, 476 F.3d 180, 184 (3d Cir. 2007). "[T]he facts asserted by the nonmoving
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`party, if supported by affidavits or other evidentiary material, must be regarded as
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`true .... " Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir.
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`1996). If "there is any evidence in the record from any source from which a
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`reasonable inference in the [nonmoving party's] favor may be drawn, the moving
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`party simply cannot obtain a summary judgment." Id.
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`III. DISCUSSION
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`FMLA retaliation claims are analyzed under the McDonnell Douglas
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`burden-shifting framework. See Budhun v. Reading Hosp. and Med. Ctr., 765 F.3d
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`245, 256 (3d Cir. 2014). To prevail on her retaliation claim, Snyder must show
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`that: "( 1) she invoked her right to FMLA-qualifying leave, (2) she suffered an
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`adverse employment decision, and (3) the adverse action was causally related to
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`her invocation of rights." Id. ( citations omitted). If Snyder can establish a prima
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`facie case, then "the burden shifts to the defendant to provide evidence of a
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`legitimate non-discriminatory reason for the adverse action." Id. ( citation omitted).
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`If DuPont can meet this "minimal burden," then Snyder must "point to some
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`7
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`evidence that the defendant's reasons for the adverse action are pretextual." Id.
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`( citation omitted). To show pretext, Snyder must present "some evidence ... from
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`which a factfinder could reasonably either ( 1) disbelieve the employer's articulated
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`legitimate reasons; or (2) believe that an invidious discriminatory reason was more
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`likely than not a motivating or determinative cause of the employer's action."
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`Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (citations omitted).
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`Snyder alleges that she suffered two adverse employment actions: her
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`termination and DuPont's surveillance of her. DuPont argues that summary
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`judgment is warranted with respect to Snyder's termination because Snyder has not
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`adduced record evidence to show a causal link between her termination and
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`Snyder's invocation of her FMLA rights and therefore Snyder has failed to
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`establish a prima facie case of retaliatory discrimination. DuPont argues that
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`summary judgment is warranted with respect to both her termination and DuPont's
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`surveillance of her because, even if Snyder made out a prima facie case of
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`retaliation, she has failed to adduce record evidence that DuPont's proffered
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`reasons for surveilling and terminating her were pretextual.
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`A.
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`Termination
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`1.
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`Causation Requirement of Prima Facie Case
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`The Third Circuit "has focused on two main factors in finding the causal link
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`necessary for retaliation: timing and evidence of ongoing antagonism." Abramson
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`8
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`v. William Paterson Coll. of N.J., 260 F .3d 265, 288 (3d Cir. 2001) ( citations
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`omitted). Snyder does not rely on the temporal proximity between her use of
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`FMLA leave (which ended on June 27, 2016) and her termination (on September
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`14, 2016) to demonstrate causality but instead argues that DuPont's antagonism
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`and animus towards her establishes the requisite causal link. D.I. 135 at 22-27.
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`Nothing in the record, however, supports a finding of a pattern of antagonism
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`towards Snyder for taking FMLA leave. To the contrary, Snyder took
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`approximately 20 FMLA and short-term disability leaves of absence during her 19
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`years at DuPont without negative consequence. D.I. 125 ,r 121; D.I. 153 ,r 121.
`DuPont never denied Snyder a request for FMLA leave, D.I. 125 ,r 121; D.I. 153, ,r
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`121, and each time Snyder returned from FMLA, she was placed back in the same
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`or a similar position she had at the time she took leave and she always received the
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`same salary and benefits she had enjoyed prior to her leaves of absence. D.I. 126
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`at Al 8.
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`2.
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`Legitimate Non-Discriminatory Reason for Termination
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`Even if Snyder did make out a prima facie case ofFMLA retaliation,
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`DuPont has offered legitimate non-discriminatory reasons for her termination that
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`Snyder has failed to demonstrate are pretextual. DuPont's burden in showing a
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`non-discriminatory reason for terminating Snyder is "relatively light" and its
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`explanation for firing Snyder must simply "permit the conclusion that there was a
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`9
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`nondiscriminatory reason for the unfavorable employment decision." Fuentes, 32
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`F .3d at 763 ( citation omitted). Here, DuPont claims its terminated Snyder because
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`of "(1) her flagrant exploitation of DuPont's short-term disability policy, (2) her
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`disregard for her treating physician's prescribed restrictions, and (3) her repeated
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`instances of dishonesty with respect to the severity of her foot injury-all in
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`violation of DuPont's Code of Conduct." D.I. 124 at 5. DuPont's short-term
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`disability plan required that "[t]o be considered disabled you must be unable to
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`work because of an illness or injury," and its discipline policy expressly provided
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`for immediate termination of an employee. D.I. 137 at B143-44, B224; D.I. 125 ,r
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`44; D.I. 153 ,r 44. DuPont's proffered reasons for termination are supported by
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`record evidence and are nondiscriminatory. Accordingly, the burden rests with
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`Snyder to prove they are pretextual. See McDonnell Douglas Corp. v. Green, 411
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`U.S. 792, 804 (1973).
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`3.
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`Evidence of Pretext
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`To discredit DuPont's proffered reason and demonstrate pretext, Snyder
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`must present "some evidence ... from which a factfinder could reasonably either
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`(1) disbelieve [DuPont's] articulated legitimate reasons; or (2) believe that an
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`invidious discriminatory reason was more likely than not a motivating or
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`determinative cause of [DuPont's] actions." Fuentes, 32 F.3d at 764 (citations
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`omitted). To satisfy the first prong, Snyder
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`10
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`cannot simply show that [DuPont's] decision was wrong
`or mistaken ... [but] must demonstrate such 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 and hence
`infer that the employer did not act for [the asserted] non(cid:173)
`discriminatory reasons.
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`Id. at 765 (internal quotation marks and citations omitted). To satisfy the second
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`prong and show that discrimination was more likely than not a motivating or
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`determinative cause of DuPont's action, Snyder "must point to evidence with
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`sufficient probative force for a factfinder to make this conclusion; i.e. that
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`[DuPont] has previously discriminated against [her], that [DuPont] has
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`discriminated against other persons within [Snyder's] protected class or within
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`another protected class or that [DuPont] has treated more favorably similarly
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`situated persons not within the protected class." Parker v. Verizon Pa. Inc., 309
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`Fed. App'x 551, 556-57 (3d Cir. 2009) (citing Simpson v. Kay Jewelers, 142 F.3d
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`639, 644-45 (3d Cir. 1998)).
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`Snyder first attempts to discredit DuPont's reasons for terminating her by
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`arguing that DuPont failed to follow its own progressive discipline policy when it
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`terminated her without offering her coaching to correct her behavior or allowing
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`her to explain her actions. D.I. 135 at 3, 18-19, 26, 29-33. Snyder cites DuPont's
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`progressive discipline policies from both 2013 and 2015 to support her argument.
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`D.I. 135 at 16, 18-19 (citing D.I. 137 at B143, B224). But although the policies in
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`question allow for progressive discipline of employees to correct performance
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`issues, they also expressly permit the immediate termination of any employee. See
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`D.I. 137 at B144 ("Depending on the level ofinfraction to performance, the level
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`of discipline may begin at any level up to and including termination."); D.I. 137 at
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`B224 ("Depending on the severity of the performance infraction, corrective action
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`may begin at any level up to and including termination."). Thus, contrary to
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`Snyder's representations, DuPont's treatment of Snyder was not inconsistent with
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`its disciplinary policies.
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`Snyder next argues that DuPont's stated reasons for her termination should
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`be discredited because DuPont "fail[ ed] to verify with Snyder's treating physician
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`about her physical capabilities and assum[ ed], incorrectly, that she violated his
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`instructions .... " D.I. 135 at 26-27. But Snyder admits that DuPont's medical
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`department "monitored her condition" and "communicated with Dr. Kupcha's
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`office regularly with continual emails and messages." D.I. 135 at 7. It is also
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`undisputed that DuPont received updates on Snyder's condition and Dr. Kupcha's
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`instructions for her recovery through the Attending Physician's Statements filled
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`out by Dr. Kupcha's office. D.I. 139 at 28-29. And it is undisputed that the
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`reports DuPont received from Dr. Kupcha's office stated that Snyder was not to
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`bear weight or drive. Thus, DuPont had sufficient knowledge about Snyder's
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`physical capabilities and the instructions provided by Dr. Kupcha. And it was not
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`necessary for it to seek out more specific information about Snyder's condition,
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`such as whether riding a lawn mower violated Snyder's doctor's orders. 1 The
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`Attending Physician's Statements and the video surveillance provided to DuPont
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`gave it good reason to believe that Snyder was misrepresenting her condition and
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`violating her doctor's orders. See Parker, 309 Fed. App'x at 557 (rejecting
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`plaintiffs argument that employer's reason for termination should be discredited
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`since the employer did not have specific information regarding plaintiffs illness
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`because "[d]etailed information was not required for [the employer] to determine
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`that [plaintiff] misrepresented his health condition").
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`Snyder next accuses DuPont of using "[q]uestionable video tapes ... to
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`justify [her] termination, some of which actually confirmed her compliance with
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`her physician's orders." D.I. 135 at 26. In Snyder's words: "The defendant's
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`video surveillance, although subject to challenges as to date stamping authenticity,
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`demonstrate[s] that Snyder was in compliance with her doctor[']s instructions."
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`D.I. 135 at 10. Snyder points to the fact that some of the video surveillance
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`1 Snyder claims that she was terminated because "DuPont considered the after
`hours use of a hand operated riding lawnmower to be such grave misconduct as to
`warrant termination .... " D.I. 135 at 32. But there is no support in the record for
`her claim. DuPont had received months of video surveillance showing Snyder
`violating her doctor's orders, and DuPont has never asserted that Snyder was fired
`only because of the surveillance showing her riding a lawnmower.
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`13
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`recordings "show her using crutches and a boot, non-weight bearing [sic]," D.I.
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`135at11.
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`It is undisputed, however, that the videos show Snyder at times bearing
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`weight, driving her Hummer, and lifting a child. D.I. 125 ,r,r 65-68, 73-75; D.I.
`153 ,r,r 65--68, 73-75. And it is undisputed that during that time period Dr. Kupcha
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`ordered Snyder not to drive and not to engage in weight-bearing activities. D.I.
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`125 ,r 58, 60, 69-70, 76-77; D.I. 153 ,r 58, 60, 69-70, 76-77. Thus, the fact that at
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`other times Snyder was recorded adhering to her doctor's orders is of no
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`consequence. Snyder's vague allegations about the "questionable[ ness ]" of the
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`video recordings and "date stamping authenticity" issues are similarly unavailing.
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`Snyder does not allege, let alone prove, that DuPont knew or had reason to
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`question the authenticity or accuracy of the video recordings on which it relied.
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`Snyder next argues broadly that "Defendant's inconsistencies and
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`contradictions of the Defendant'[s] story" are evidence of DuPont's discriminatory
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`animus. D.I. 135 at 29. But the only inconsistency Snyder identifies is that
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`"Minner testified that Snyder should have been given an opportunity to explain her
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`side, before she was terminated" and "Drew testified that the decision was made
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`before the termination meeting .... " D.I. 135 at 32-33. It is unclear what Snyder
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`alleges is inconsistent here. Snyder appears to be merely reframing her earlier
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`14
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`Case 1:18-cv-01266-CFC-SRF Document 154 Filed 02/05/21 Page 16 of 22 PageID #: 3475
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`argument that she was improperly denied an opportunity to explain herself before
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`her termination.
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`Snyder's remaining arguments shift from discrediting DuPont's
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`justifications to suggesting "that an invidious discriminatory reason was more
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`likely than not a motivating or determinative cause of [DuPont's] actions."
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`Fuentes, 32 F.3d at 764. Snyder claims, for example, that DuPont's surveillance
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`of her shows discriminatory animus. But "[n]othing in the FivILA prevents
`
`employers from ensuring that employees who are on leave from work do not abuse
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`their leave." Parker, 309 Fed. App'x at 563 (citation omitted). Snyder also points
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`to the invasive tactics employed by the third-party investigator to conduct the
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`surveillance. But she does not allege or prove that DuPont was aware of those
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`tactics. D.I. 135 at 10. Snyder also argues that Randall King's expression of"a
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`need for more time for additional surveillance to make a 'case' against her" shows
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`discriminatory animus. D.I. 135 at 26. But even assuming that this statement
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`shows that King wanted to terminate Snyder, Snyder fails to explain how it shows
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`a discriminatory motivation tied to Snyder's use or invocation of FMLA leave.
`
`Snyder also cites the following deposition of testimony of Joseph Guerrieri
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`as evidence of actionable animus:
`
`There were times that Peggy came back to work. And
`had she just stayed at work and everything would have
`been fine. We wouldn't be here today. But then she
`would have immediately saved the minimum, the
`
`15
`
`
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`Case 1:18-cv-01266-CFC-SRF Document 154 Filed 02/05/21 Page 17 of 22 PageID #: 3476
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`minimum amount of time to get the Fl\1LA clock reset
`and then immediately go back out and then she would
`return to work again.
`
`D.I. 137 at B321. In assessing whether these remarks are probative of
`
`discrimination, the following factors are considered: "{l) the relationship of the
`
`speaker to the employee and within the corporate hierarchy; (2) the temporal
`
`proximity of the statement to the adverse employment decision; and (3) the
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`purpose and content of the statement." Parker, 309 Fed. App'x at 558-59
`
`( citations omitted). In this case, Guerrieri made the remarks on May 7, 2020-
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`more than three years after DuPont fired Snyder. Snyder does not argue that
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`Guerrieri made any similar statements before or at the time of Snyder's
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`termination. In Parker, the Third Circuit found that remarks by a decisionmaker
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`seven months before the plaintiff's termination did not support the plaintiff's claim
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`that his termination was motivated by discriminatory intent. Id. at 559. In this
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`case, because the comments were made over three years after Snyder's
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`termination, as in Parker, I "decline to depart from the principle that such stray
`
`remarks are rarely given great weight when made temporally remote from the
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`decision to terminate [Snyder]." Id.
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`Finally, Snyder cites as evidence of DuPont's discriminatory animus the fact
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`that "DuPont [] has a long history of attempting to convince [her] to retire on
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`disability because of various medical issues from which she suffered." D.I. 135 at
`
`16
`
`
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`Case 1:18-cv-01266-CFC-SRF Document 154 Filed 02/05/21 Page 18 of 22 PageID #: 3477
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`6. To support this assertion, Snyder cites to three letters sent to her by DuPont's
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`human resources manager "request[ing] that she resign" and "implying she should
`
`apply for 'Total & Permanent Disability Leave."' But the letters were sent to
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`Snyder in 2005 and 2007-more than a decade before Snyder was terminated. D.I.
`
`137 at B058-061. Accordingly, no reasonable juror would infer from those letters
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`that DuPont's firing of Snyder in 2016 was based on discriminatory animus.
`
`B.
`
`Surveillance
`
`DuPont states in its reply brief that "Plaintiffs analysis establishes that
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`surveillance has been deemed by courts to be a per se adverse employment action."
`
`D.I. 139 at 4. And it does not argue that Snyder failed to establish a prima facie
`
`case of retaliation based on DuPont's surveillance of her. Instead, DuPont
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`contends that summary judgment is warranted because DuPont proffered
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`legitimate, nondiscriminatory reasons for conducting the surveillance and Snyder
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`failed to establish that the proffered reasons were pretextual.
`
`1.
`
`Legitimate Non-Discriminatory Reason for Termination
`
`The deposition testimony of multiple employees established that DuPont's
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`decision to surveil Snyder was based on information that reasonably suggested that
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`Snyder had misrepresented her need for disability leave. Paul Klimek testified that
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`over the span of years, he had been told that Snyder was acting in a manner
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`inconsistent with a need for disability leave from "[t]wo-thirds of the site,
`
`17
`
`
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`Case 1:18-cv-01266-CFC-SRF Document 154 Filed 02/05/21 Page 19 of 22 PageID #: 3478
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`countless people." D.I. 140 at C003-C004. Joseph Guerrieri testified that he "had
`
`a couple of employees tell [him] that they've seen [Snyder] out, that they knew she
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`was doing things that she could have easily been doing while at work." D.I. 140 at
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`C036. Stephen Coughlan also testified that while Snyder was out on leave, he
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`heard "[t]hat she was out at a party, a pool party, in the back of a yard walking
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`around." D.I. 140 at C009. Lastly, Cheryl Drew stated that another employee,
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`John Piscorek, had complained to her that "while [Snyder] was out on DuPont paid
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`disability, [he saw her] engaging in activities that were not consistent with her
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`recovery" such as going out on a boat at the beach. D .I. 140 at CO 15-CO 16. As
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`Coughlan testified, based on this information, the purpose of the surveillance was
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`"ensuring that [Snyder] abided by the restrictions on and off-duty." D.I. 140 at
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`COlO. And as noted above, "[n]othing in the FMLA prevents employers from
`
`ensuring that employees who are on leave from work do not abuse their leave."
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`Parker, 309 Fed. App'x at 563 (citation omitted).
`
`Because DuPont provided a legitimate nondiscriminatory reason for
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`surveilling Snyder, to survive summary judgment, Snyder "must present evidence
`
`to show that [DuPont's] proffered reasons were not its true reasons, but were
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`merely a pretext for its illegal action." Naber v. Dover Healthcare Assocs., Inc.,
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`765 F.Supp.2d 622, 634 (D. Del. 2011) (citation omitted).
`
`18
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`
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`Case 1:18-cv-01266-CFC-SRF Document 154 Filed 02/05/21 Page 20 of 22 PageID #: 3479
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`2.
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`Evidence of Pretext
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`Snyder has failed to establish a genuine dispute about whether DuPont's
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`surveillance was actually motivated by discrimination. Snyder states that "[t]he
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`antagonism and animus evidenced by the Defendant's inconsistencies and
`
`contradictions of the Defendant' [ s] story clearly demonstrates a pretext, animosity
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`for the use ofFlVILA so as to be pretextual." D.I. 135 at 29. But Snyder does not
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`explain what "inconsistencies and contradictions" related to her surveillance would
`
`create a question of fact about whether DuPont's nondiscriminatory explanation
`
`for the surveillance was pretextual.
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`Snyder argues that the surveillance violated DuPont's policies and she
`
`implies that this fact shows discriminatory animus. But the portions of the record
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`she cites in support of the argument's premise-i.e., that the surveillance violated
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`DuPont's own policies-do not suggest, let alone establish, that DuPont violated
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`its policies. For example, Snyder states in her brief that "DuPont has no
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`documents memorializing reasons for the two[-]year surveillance of Snyder even
`
`though no surveillance could be started without such documentation." D.I. 135 at
`
`9. But the deposition testimony she cites in support of this statements reads as
`
`follows:
`
`Q: Have you ever seen surveillance started on somebody
`without any documentation memorializing the reasons
`for it?
`
`19
`
`
`
`Case 1:18-cv-01266-CFC-SRF Document 154 Filed 02/05/21 Page 21 of 22 PageID #: 3480
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`A: No, I don't know, I don't recall.
`
`See D.I. 137 at B234. She similarly argues that the surveillance violated DuPont's
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`progressive discipline policy. D.I. 135 at 30-31. But the policy she says DuPont
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`violated states that "issues involving unacceptable employee performance and/or
`
`behavior will be managed through a progressive corrective action process ... [and]
`
`[ w ]hen performance deviates from acceptable norms, corrective action steps will
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`be used as an opportunity for the employee to change and improve performance
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`and/or behavior." D.I. 137 at B224. Snyder does not explain how initiating
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`surveillance to determine if she was "deviating from acceptable norms" violates a
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`policy that by its express terms does not apply unless the employee deviates from
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`acceptable norms. In addition, as noted above, DuPont's policy on discipline also
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`provided that "[ d]epending on the severity of the performance infraction,
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`corrective action may begin at any level up to and including termination." D.I. 13 7
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`at B224.
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`Finally, Snyder argues that the evidence that DuPont relied on to justify the
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`surveillance is inadmis
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