Sally J. Shellenberger v. SUMMIT BANCORP, INC. On Appeal from the Rule 50 Decision

PRECEDENTIAL
Filed January 23, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-1215
SALLY J. SHELLENBERGER,
Appellant
v.
SUMMIT BANCORP, INC.
On Appeal from the Rule 50 Decision and Judgment
Entered thereunder by the United States District Court
for the Eastern District of Pennsylvania
Civ. No. 99-cv-05001
District Judge: Honorable Herbert J. Hutton
Argued: May 23, 2002
Before: MCKEE, STAPLETON, and WALLACE,*
Circuit Judges
(Filed: January 23, 2003)
Kimberly D. Borland (Argued)
69 Public Square
Suite 1100
Wilkes Barre, PA 18701
Counsel for Appellant
________________________________________________________________
* Honorable J. Clifford Wallace, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
Gary W. Flanagan (Argued)
Edwards & Angell, LLP
2800 Financial Plaza
Providence, RI 02903
Counsel for Appellee
OPINION OF THE COURT
MCKEE, Circuit Judge:
Sally Shellenberger appeals the district court’s grant of a
motion for judgment as a matter of law under Fed. R. Civ.
P. 50 that Summit Bancorp ("Summit") made during the
jury trial of the suit Shellenberger brought under the
Americans with Disabilities Act ("ADA"). Shellenberger
claimed that Summit’s termination of her employment was
illegal disability discrimination, and retaliation for activity

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that is protected under the ADA. On appeal, Shellenberger
argues that the district court erred in granting Summit’s
Rule 50 motion on her retaliation claim. She also claims
that her request for accommodation was protected activity
under the ADA and that a jury could reasonably conclude
that Summit terminated her employment because of that
protected activity in violation of the ADA. Shellenberger has
not, however, appealed the district court’s grant of
Summit’s Rule 50 motion on her claim of disability itself.
Accordingly, we need not consider whether the district
court erred in concluding that Shellenberger failed to
establish that she was disabled as a matter of law. For the
reasons that follow, we will reverse and remand for a new
trial on her retaliation claims.
I. Facts
Sally Shellenberger began her employment with Summit
in January 1997 as a Customer Service Representative at
Summit’s call center in Bethlehem, Pennsylvania. She had
an extensive history of seasonal allergies, and she was
taking medication when she began her employment.
Nine months after she began working at Summit, she
started complaining to management that she was
2
experiencing adverse physical reactions to various
fragrances in the work environment. On September 6,
1997, Shellenberger complained to Jane Fungard, the Site
Manager, and told her that she (Shellenberger) was
experiencing nausea and allergy-like symptoms from a co-
worker’s perfume. Fungard allowed Shellenberger to move
her seat. Nine days later, Shellenberger again complained
to Fungard about symptoms triggered by a fragrance
another co-worker was wearing, and Fungard again allowed
Shellenberger to move her seat. Shellenberger also asked
permission to "sniff " new employees who may be stationed
next to her. Not surprisingly, Fungard denied that request.
The following month, Shellenberger complained about a
fragrance worn by another co-worker, and Shellenberger
was allowed to place a fan at her desk. That same day,
Shellenberger met with Fungard, Tracy Resetar, a human
resources representative, and Alice Ruiz, who was on
Summit’s employee relations staff. During that meeting
Shellenberger was told that she would be allowed to move
her desk to the north side of the building. However, she
was also warned that her desk would not be moved again
except for Summit’s own business reasons. Around this
time, Shellenberger also told a supervisor, Angela Diadordo,
not to approach her because a fragrance Diadordo was
wearing bothered Shellenberger. Diadordo complied with
that request, and called Shellenberger on the phone to
discuss business matters rather than discuss them with
her in person.
Shellenberger eventually consulted Dr. Harold Buttram,

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who concluded that Shellenberger was suffering from"toxic
encephalopathy," that she was hyper-sensitive to common
chemicals and fragrances in the workplace, and that she
suffered allergy-like symptoms when she came in contact
with them. The substances she reacted to included: scented
hand creams, deodorants, cleaning chemicals, "white-out,"
plug-in room deodorizers, carbonless paper, felt tip
markers, some carpeting, and hair relaxers.
On November 7, 1997, Dr. Buttram wrote to Carl
Johnson, the Vice President and EEO Compliance Officer
for Summit. Dr. Buttram asked Summit to make some
accommodations for Shellenberger’s condition. Johnson did
3
not reply. Instead, Dr. Buttram received a letter from James
Kreig, counsel for Summit. The two exchanged letters
regarding Shellenberger’s sensitivities beginning on
November 20, 1997, and lasting through February of the
next year. Despite that correspondence, they were unable to
reach any mutually satisfactory resolution for
Shellenberger. Dr. Buttram also wrote two other letters on
Shellenberger’s behalf in August and September of 1998,
but the matter remained unresolved.
Shellenberger left work early three times in November
1997 and once in March 1998 due to discomfort she was
experiencing from fragrances in the workplace. She was
never disciplined for any of those early departures. On April
22, 1998, Shellenberger experienced symptoms from the
lemon-scented furniture polish in the room where she was
receiving training. Summit managers allowed her to leave
training early and reschedule her training session.
In August 1998, Shellenberger was paired with a new
trainee during a two week "buddy system" orientation.
Shellenberger apparently had a reaction to the trainee’s
perfume and asked her to stop wearing it. The trainee
complied with the request. However, Shellenberger later
complained that some fragrance in a skin lotion the trainee
was wearing irritated her. Summit responded by allowing
Shellenberger two weeks paid absence until the "buddy
system" orientation was finished.1
Around January of 1998, Shellenberger began
communicating with the EEOC regarding the conditions of
her employment at Summit, and she filed an EEOC
complaint against Summit in July of that year. In that
complaint, Shellenberger alleged that she was disabled
under the ADA and that Summit had failed to
accommodate her disability. Summit was served with notice
of Shellenberger’s complaint on August 17, 1998.
On September 10, 1998 (a few weeks after receiving the
EEOC complaint), Shellenberger met with Fungard and one
of Shellenberger’s supervisors to discuss possible
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1. Shellenberger began wearing a charcoal mask in the workplace around
this time. Her supervisors apparently did not object.
4
accommodations. Shellenberger claims that she inquired
about the possibility of Summit adopting a perfume-free
policy in the workplace or giving her an enclosed cubicle
with a special air filtration device. Shellenberger also claims
that Fungard responded: "I know that you’re taking the
legal route, so you probably just want to consider--just
continue in that vein." App. 67. According to Shellenberger,
all discussion of possible accommodations stopped after
that comment, and the meeting ended. Summit’s account of
the meeting is different. Summit contends that
Shellenberger was insubordinate, accused Summit of
"poisoning" her, and framed her request for
accommodations as an ultimatum rather than an inquiry or
request.
On September 23, 1998, Shellenberger was called into
Resetar’s office for a meeting, which Fungard also attended.
It was at that meeting that Shellenberger was told she was
being fired. Shellenberger claims that Resetar explained
that she was being fired because "[w]e can’t get along with
you or we--we just can’t work out our relationship with
you." App. at 69. When asked if her termination had
anything to do with her ability to get along with co-workers,
Shellenberger claims that Resetar responded, ". .. no, no,
no. It has nothing to do with that. We just can’t work
things out with you." Id. When asked if she was being
terminated due to her disability, Resetar responded,". . .
according to the bank’s attorneys, you do not have a
disability." Id. at 70.
After her termination, Shellenberger filed a second
complaint with the EEOC, this time alleging illegal
retaliatory discharge under the ADA. After an investigation,
the EEOC concluded that Shellenberger had established
both her failure to accommodate claim and her retaliatory
discharge claim, and Shellenberger subsequently sued
Summit under the ADA in district court.
During the ensuing jury trial, Shellenberger attempted to
prove both a "pretext" case and a "mixed-motives" case
under the ADA. At the conclusion of her evidence, the court
granted Summit’s Rule 50 motion for judgment as a matter
of law as to Shellenberger’s disability discrimination claim
5
and her retaliatory discharge claim. This appeal followed.2
As noted at the outset, Shellenberger is only appealing the
judgment dismissing her retaliation claim.
II. Discussion
Our review of a district court’s ruling on a motion for a

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new trial pursuant to Fed. R. Civ. P. 50 is plenary. See
Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d
78, 88 (3d Cir. 2000); Alexander v. Univ. of Pittsburgh Med.
Ctr. Sys., 185 F.3d 141, 145 (3d Cir. 1999). Thus, we must
interpret all evidence in the light most favorable to
Shellenberger, the non-moving party. Judgment as a matter
of law is appropriate only if the evidence so interpreted does
not allow a reasonable jury to find in Shellenberger’s favor
on her claim of illegal retaliation for engaging in a protected
activity under the ADA. See Blanche Road Corp. v.
Bensalem Township, 57 F.3d 253, 262 (3d Cir. 1995); see
also Fed. R. Civ. P. 50.
A.
Shellenberger claims that Summit violated the ADA by
terminating her employment in retaliation for her
requesting an accommodation under the ADA and filing a
complaint with the EEOC. The district court analyzed her
claim solely under a "pretext" theory, and found that
Shellenberger had not presented sufficient evidence as a
matter of law to establish a causal connection between
engaging in protected activity and Summit’s decision to fire
her. The court also ruled that, regardless of whether
Shellenberger had established a causal connection, Summit
had put forth a legitimate, non-discriminatory reason for
firing her: that she was insubordinate.
The evidentiary framework of Shellenberger’s claim will
vary depending on whether the suit is characterized as a
"pretext" suit or a "mixed-motives" suit.3 Shellenberger
_________________________________________________________________
2. The district court had jurisdiction pursuant to 28 U.S.C. S 1331. We
have jurisdiction pursuant to 28 U.S.C. S 1291.
3. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997).
6
argues that her evidence was sufficient to survive judgment
as a matter of law under either theory, and we agree.4
A "pretext" claim of illegal retaliation follows the familiar
burden shifting analysis of Title VII claims set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).5
Thus, in order to prevail under a "pretext" theory of illegal
retaliation "a plaintiff must show: (1) protected employee
activity; (2) adverse action by the employer either after or
contemporaneous with the employee’s protected activity;
and (3) a causal connection between the employee’s
protected activity and the employer’s adverse action."
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir.
1997). If the plaintiff is able to establish these elements of
his/her prima facie case, "the burden shifts to the employer
to advance a legitimate, non-retaliatory reason for its
adverse employment action." Id. If the employer satisfies
that burden, the plaintiff must then prove that"retaliatory
animus played a role in the employer’s decisionmaking

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process and that it had a determinative effect on the
outcome of that process." Id. at 501.
"[B]y contrast, we have held that [in order to prevail
under a "mixed-motives" theory] a plaintiff need only show
that the unlawful motive was a ‘substantial motivating
factor’ in the adverse employment action." Watson v.
Southeastern Pennsylvania Transp. Auth., 207 F.3d 207,
_________________________________________________________________
4. Referring to these theories as though they embodied two distinct kinds
of illegal conduct, or that they encompass two mutually exclusive legal
theories is as troublesome as it is misleading. See Watson v.
Southeastern Pennsylvania Transp. Auth., 207 F.3d 207, 215, n.5 (3d
Cir. 2000) ("The ‘pretext’ and ‘mixed-motive’ labels are misleading. . . .
Nevertheless, we use the terms . . . because they are familiar and the
introduction of new terminology might lead to even greater confusion.")
(citations omitted). Nevertheless, as we did in Watson, we will use those
terms here because of their familiarity and the extent to which they are
now woven into the fabric of the jurisprudence of discrimination.
5. While the burden of proof may shift, "the ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff."
Shaner v. Synthes, 204 F.3d 494, 500-01 (3d Cir. 2000), quoting Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
7
215 (3d Cir. 2000) (discussing the mixed-motive and
pretext theories at length).
At the outset of our discussion, we note that
Shellenberger’s failure to establish that she was disabled
does not prevent her from recovering if she can establish
that her employer terminated her because she engaged in
activity protected under the ADA. In Krouse, we stated: "We
hold that a person’s status as a ‘qualified individual with a
disability’ [under the ADA] is not relevant in assessing the
person’s claim for retaliation under the ADA." Krouse, 126
F.3d at 498.
That conclusion follows inexorably from the
unambiguous text of the ADA. The Act not only applies to
those who are protected because they are "disabled" as
defined therein. It also "protects ‘any individual’ who has
opposed any act or practice made unlawful by the ADA or
who has made a charge under the ADA. This differs from
the scope of the ADA disability discrimination provision, 42
U.S.C. S 12112(a), which may be invoked only by a
‘qualified individual with a disability.’ " "Id. at 502." (some
citations omitted) (emphasis added). Thus, "[a]n individual
who is adjudged not to be ‘a qualified individual with a
disability’ may still pursue a retaliation claim under the
ADA." Id.
With this background in mind, we begin our inquiry into
whether the evidence at trial was sufficient to allow a
reasonable juror to find for Shellenberger on her retaliation

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claim under either a "pretext" or "mixed-motive" theory. We
conclude that her proof was sufficient to survive Summit’s
Rule 50 motion under either theory.6
The ADA provides:
No person shall discriminate against any individual
because such individual has opposed any act or
_________________________________________________________________
6. On retrial, the district court "must decide whether one or both
theories properly apply at some point in the proceedings prior to
instructing the jury." Hankins v. City of Philadelphia, 189 F.3d 353, 364
n.6 (3d Cir. 1999), citing Price Waterhouse v. Hopkins, 490 U.S. 228, 247
n.12 (1989).
8
practice made unlawful by [the ADA] or because such
individual made a charge . . . under [the ADA].
42 U.S.C. S 12203(a) (2002). Thus, it is unlawful for an
employer to retaliate against an employee based upon the
employee’s opposition to anything that is unlawful under
the ADA. This obviously includes the filing of a charge of
discrimination with the EEOC. As noted earlier, retaliation
claims under the ADA are analyzed under the same
framework as Title VII discrimination claims. Krouse, 126
F.3d at 500. A plaintiff may use either direct or
circumstantial evidence to prove retaliatory animus under
the ADA. See Shaner v. Synthes, 204 F.3d 494, 501 (3d Cir.
2000).
The district court found that Shellenberger did not
produce sufficient evidence to establish a prima facie case,
because she had not shown a causal link between her
protected activity and her termination. The district court
found that: (1) there was no evidence that Summit or
Fungard ever received notice of the EEOC complaint; (2)
Fungard’s statement about "taking the legal route" was
never confirmed as referring to Shellenberger’s filing of the
EEOC complaint; and (3) there was no evidence that
Fungard was a decisionmaker in Shellenberger’s
termination. App. 14. However, our review of the record
establishes that Shellenberger’s proof was sufficient to
make out a prima facie case of retaliation.
Shellenberger filed her first EEOC complaint on July 13,
1998 (two months before she was terminated), and it is
uncontested that Summit received notice of that filing on
August 17, 1998. The district court’s conclusion that there
is no evidence that Summit received notice of the complaint
is therefore contradicted by the record.7 Moreover, there is
also evidence that Fungard had personal knowledge of
Shellenberger’s complaint. As noted above, at the
September 10 meeting where Shellenberger was terminated,
Fungard told her: "I know that you’re taking the legal route,
so you probably just want to consider--just continue in
that vein." Even though Shellenberger did not specifically

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_________________________________________________________________
7. At oral argument, Summit’s counsel admitted that Summit received
notice of the complaint.
9
ask Fungard if she was referring to the EEOC complaint,
Fungard’s statement clearly evinces an awareness that
Shellenberger had started legal action against Summit, and
a jury could easily conclude that the remark referred to the
EEOC complaint.
Furthermore, Fungard was present in Resetar’s office
when Shellenberger was fired. As the Site Manager of the
call center, her presence in Resetar’s office during a
meeting Resetar called to fire Shellenberger presents
circumstantial evidence that Fungard was involved in the
decision to terminate Shellenberger.8
Summit contends that the mere fact that Shellenberger’s
termination occurred 10 days after Fungard’s alleged
comment about "taking the legal route" is not sufficient by
itself to create a causal link between engaging in the
protected activity and the termination. However, we have
held that "temporal proximity between the protected activity
and the termination is [itself] sufficient to establish a
causal link." Woodson v. Scott Paper Co., 109 F.3d 913, 920
(3d Cir. 1997). The amount of time between the protected
activity and the alleged retaliation is a circumstance to be
considered by a fact-finder in determining if the plaintiff
has established the required causation.9 Moreover, there is
more than temporal proximity here.
The timing of Fungard’s comment (10 days before the
firing) combined with Resetar’s comments during the
September meeting, could very well lead a reasonable jury
to conclude that Shellenberger was fired because she took
the "legal route." This was sufficient to establish a prima
facie case under either a "pretext" or"mixed-motive" theory.
Under the McDonnell Douglas framework, the burden now
_________________________________________________________________
8. Accordingly, we disagree with the district court’s conclusion that
Fungard’s possible involvement is not relevant because "[t]here is no
evidence that Ms. Fungard was a decision maker in plaintiff ’s
termination." App. 14.
9. We have also noted that "the timing of the alleged retaliatory action
must be ‘unusually suggestive’ of retaliatory motive before a causal link
will be inferred." Krouse, 126 F.3d at 503; see also Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997).
10
shifts to Summit to articulate some legitimate, non-
discriminatory reason for terminating Shellenberger."The

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employer’s burden at this stage is relatively light: it is
satisfied if the defendant articulates any legitimate reason
for the [adverse employment action]; the defendant need
not prove that the articulated reason actually motivated the
[action]." Krouse, 126 F.3d at 500 (internal quotation marks
omitted), quoting Woodson, 109 F.3d at 920 n.2. The
proffered reason need only raise a genuine issue of fact as
to whether the employer acted impermissibly. See Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254
(1981).
Summit contends that it fired Shellenberger because she
was insubordinate during the September 10 meeting.
Summit claims that Shellenberger yelled at Fungard, and
accused Summit of "poisoning" her through the air
ventilation system. Summit also contends that
Shellenberger issued an ultimatum that Summit either
establish a fragrance-free work environment or provide
Shellenberger with an enclosed cubicle equipped with a
special air filtration device. Summit supports its claim that
the firing resulted solely from Shellenberger’s
insubordination by referring to a letter Shellenberger wrote
to Dr. Buttram in October 1998. In that letter,
Shellenberger speculated that Summit fired her because the
company was "pissed off " that she had raised her voice to
Fungard during the September meeting.
Having been presented with this non-discriminatory
explanation, Shellenberger then had to prove by a
preponderance of the evidence that the insubordination was
nothing more than a pretext for Summit’s true motivation.
In other words, Shellenberger had to prove that"retaliatory
animus played a role in the employer’s decisionmaking
process and that it had a determinative effect on the
outcome of that process." Krouse, 126 F.3d at 501.
There is clearly enough here to allow that decision to be
made by a jury. Shellenberger argues that there are
inconsistencies in Summit’s explanation as to why she was
fired, so that a reasonable jury could have found that she
was fired because of retaliatory animus. She contends that
when she asked Resetar why she was being fired Resetar
11
explained "[w]e can’t get along with you or we--we just can’t
work out our relationship with you." App. at 69. However,
when Shellenberger followed up by asking if her
termination had anything to do with her ability to get along
with co-workers, Resetar purportedly responded,"it has
nothing to do with that. We just can’t work things out with
you." Id. When asked if she was being terminated due to
her disability, Shellenberger claims that Resetar responded,
". . . according to the bank’s attorneys, you do not have a
disability." Id. at 70.
Resetar’s choice of words could reasonably be viewed as
proof that Summit no longer wanted to be bothered with
persistent requests for "baseless" accommodations, and

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that it was upset that Shellenberger had filed an EEOC
complaint against it. This is especially true given the
evidence that Summit had conferred with its attorneys and
concluded that Shellenberger was not "disabled," and had
tired of her persistent requests for an accommodation
and/or her lawsuit. Viewing these statements in the light
most favorable to Shellenberger, it is clear that a
reasonable jury could conclude that she was fired in
retaliation for her protected activity rather than (or in
addition to) her insubordinate behavior.10
B.
Shellenberger also argues that her requests for
accommodation were protected under the ADA and the jury
could therefore have also concluded that she was fired for
engaging in that protected activity.
Although Shellenberger has not appealed the district
court’s ruling that, as a matter of law, she did not establish
that she was disabled, as noted above, the absence of a
disability does not translate into an absence of protection
under the ADA. The right to request an accommodation in
_________________________________________________________________
10. Under a "mixed-motives" theory, Summit would have an opportunity
to demonstrate that Shellenberger would have been fired regardless of
her protected activity. See Miller v. Cigna Corp., 47 F.3d 586, 594 (3d
Cir. 1995) (en banc). Given the procedural posture of this suit, no such
evidence was admitted at the trial.
12
good faith is no less a guarantee under the ADA than the
right to file a complaint with the EEOC, and we have
already explained that the ADA protects one who engages in
the latter activity without regard to whether the
complainant is "disabled." As the court noted in Soileau v.
Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997), "it
would seem anomalous . . . to think Congress intended no
retaliation protection for employees who request a
reasonable accommodation unless they also file a formal
charge. This would leave employees unprotected if an
employer granted the accommodation and shortly thereafter
terminated the employee in retaliation." See also,
Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 786
(3d Cir. 1998), ("we see no basis for holding that a person
who is adjudged not to have a disability may not assert a
retaliation claim based on some form of protected activity
other than the filing of a formal complaint."); and Selenke
v. Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir.
2001) ("to prosecute an ADA retaliation claim for requesting
reasonable accommodations, a plaintiff need not show that
she suffers from an actual disability. . . . A reasonable,
good faith belief that the statute has been violated
suffices.").
The requirement of a good faith request for an
accommodation means that the protection from retaliation

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afforded under the ADA does not extend to an employee
whose request is motivated by something other than a good
faith belief that he/she needs an accommodation. Congress
clearly did not intend to extend the reach of the ADA’s
umbrella to employees whose motivation for requesting an
accommodation is something other than a good faith belief
that an accommodation under the Act is necessary or
appropriate. However, nothing on this record suggests that
Shellenberger’s request was motivated by anything other
than good faith, and Summit has not argued to the
contrary. Accordingly, based upon our review of this record,
there is sufficient evidence to allow a jury to conclude that
Summit’s alleged retaliatory actions violated the ADA. We
therefore hold that the district court erred in concluding
that Summit was entitled to judgment as a matter of law
under Rule 50 on her retaliation clalim.
13
III. Conclusion
Accordingly, for all the reasons set forth herein, we will
reverse the district court’s grant of Summit’s motion for
judgment as a matter of law and remand the case for a new
trial.11
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
11. Shellenberger attempts to attach some significance to the fact that
Summit’s counsel "admitted" during opening statements and the Rule 50
argument that Summit fired her due to her protected activity.
Shellenberger argues that Summit is therefore estopped from denying
this motivation. However, we find that any such admission is irrelevant
to the merits of Shellenberger’s arguments here because remarks by
counsel are not "evidence" for the purpose of evaluating a motion for
judgment as a matter of law. See, e.g., Fineman v. Armstrong World
Indus. Inc., 980 F.2d 171, 210 (3d Cir. 1992) (jury instruction was given
by the court that counsel’s remarks made during closing argument are
not evidence); Edwards v. City of Philadelphia, 860 F.2d 568, 575 (3d
Cir. 1988) (similar jury instruction regarding remarks made during
opening statement).
14

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