Gerard Griesbaum v. AVENTIS PHARMACEUTICALS On Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4569
GERARD GRIESBAUM,
Appellant
v.
AVENTIS PHARMACEUTICALS
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 04-01726)
Honorable Thomas I. Vanaskie, District Judge
Argued October 17, 2007
BEFORE: FISHER, ALDISERT, and GREENBERG, Circuit Judges
(Filed: December 24, 2007)
Donald P. Russo (argued)
117 East Broad Street
P.O. Box 1890
Bethlehem, PA 18016
Attorney for Appellant
Michael L. Banks
Azeez Hayne (argued)
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103

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Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before the court on an employee’s appeal from a summary
judgment entered in favor of his employer in an employment termination action. The
employer, Aventis Pharmaceuticals, employed appellant Gerard Griesbaum as a sales
representative. In the course of his employment Griesbaum was in a serious automobile
accident that caused him significant injuries which precluded him from working.
Accordingly, he received statutory workers’ compensation benefits and contractual short-
term and long-term disability benefits pursuant to an insurance policy that Aventis
provided. After Griesbaum had been on medical leave for a full year, Aventis terminated
his employment, an action that it asserts it took pursuant to its written medical leave
policy requiring an employee’s termination “after 365 continuous calendar days of
medical leave.” Suppl. app. at 107.
Notwithstanding the circumstance that his discharge was in accordance with the
precise terms of Aventis’s medical leave policy, Griesbaum filed this suit alleging that it
terminated his employment to retaliate against him by reason of his seeking and receiving
the workers’ compensation benefits. Moreover, he filed this action even though he had
no direct evidence that Aventis had this motive for discharging him, and, indeed, never

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1In 2004, Aventis merged with Sanofi Synthelabo and now is called “sanofi-aventis.”
Appellee’s br. at 1 n.1. Nevertheless, for convenience, we will refer to the company as
“Aventis.”
3
has had any such direct evidence. With respect to circumstantial evidence he contends
that Aventis’s proffered reason for terminating his employment, i.e., its application of its
one-year medical leave policy, was pretextual because Aventis deviated from its
procedures in applying the policy. Its most notable deviation was that it did not ensure
that Griesbaum received a letter from it notifying him about his potential employment
termination pursuant to the medical leave policy if he did not return to work. We
unanimously conclude, however, that Griesbaum had prior notice of Aventis’s
employment termination policy, and, more significantly, did not show that its failure to
give him specific notice of its medical leave termination policy following his injury
suggests that it had a retaliatory animus for terminating his employment. Moreover,
Judge Fisher and Judge Aldisert are of the view that Griesbaum did not show that there
was a causal connection between the filing of his workers’ compensation claim and the
termination of his employment and for this additional reason Griesbaum’s case fails.
Therefore, we will affirm the District Court’s order of September 25, 2006, granting
Aventis’s motion for summary judgment.
II. FACTS AND PROCEDURAL HISTORY
Aventis1 employed Griesbaum, who is about 60 years old, as an at-will sales

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2Griesbaum does not remember filing the claim himself with the state agency with
jurisdiction over workers’ compensation claims but he does indicate that he “pursued [his
workers’ compensation claim] simply by informing [Aventis’s] Human Resources
Department that [he had] incurred a work related injury.” Appellant’s br. at 17. While
our outcome in this case does not depend on the mechanics of how the claim was filed,
we believe that it is likely that Aventis submitted the claim for him as it normally does
when an employee is injured in the course of employment. There is, however, no direct
evidence in the record that it did file the claim.
3A decision on the outcome of his appeal of the denial of the benefits will be
immaterial to the issues here. We do not know whether Griesbaum at this time believes
that his physical condition would permit him to return to his past employment at Aventis.
4
representative in its Reading, Pennsylvania, territory. Prior to Aventis terminating his
employment Griesbaum worked for it or for a predecessor for 28 years.
On August 14, 2001, in the course of his employment, Griesbaum was in an
automobile accident causing him serious bodily injuries. Following the accident, he was
unable to perform the essential functions of his position and, as a result, a workers’
compensation claim was filed on his behalf.2 In addition, Griesbaum received short-term
and long-term disability benefits until February 2005 when Aventis’s long-term disability
insurance carrier determined that he was no longer eligible for benefits. Griesbaum
appealed from the termination of the long-term disability benefits and as of the time of the
district court’s September 25, 2006 order, that appeal still was pending. We do not know
whether the appeal since has been resolved but we do know that Griesbaum has continued
to assert that he was not able to return to his position with Aventis during his entire 365-
day medical leave and for at least sometime thereafter.3
Griesbaum testified at a deposition that shortly after the accident he spoke with

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Aventis’s Regional Director (John Coleman), National Vice President of Sales (Tim
Shalbrack), and District Manager (Rose Rich), and that they all told him that his position
with Aventis was secure. However, at Griesbaum’s deposition he clarified that he does
not remember if any of these individuals promised to hold open his position for any
specified time, nor does he believe that they broke any promises they made to him.
Furthermore, at a deposition Rich denied stating that Griesbaum’s position was secure but
testified that she told him that the most important thing was his health.
In any event, regardless of what Aventis’s management previously told
Griesbaum, in February 2002 Rich informed him that Aventis was going to fill his
position because it needed a representative in his territory and Aventis’s policy was to
back fill an employee’s position if he was unable to return to work after six months of
medical leave. Griesbaum stated at his deposition that he did not believe that Aventis
filled his position for any other reason.
Sometime following August 14, 2002, more than one year after the accident,
Barbara Chalmers, an Aventis human resources services coordinator, conducted a routine
periodical audit of its employees on medical leave. In accordance with Aventis’s Medical
Leave of Absence Policy, which states that employees “will be terminated at the earlier of
(1) the date medical leave is no longer approved by Health Services and he or she does
not return to work or (2) after 365 continuous calendar days of medical leave,” suppl. app.
at 106, she marked all employees on medical leave for longer than 365 days as

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6
“terminated.” Thus, Chalmers marked Griesbaum’s employment as terminated as of
August 14, 2002. According to Chalmers’s affidavit of May 26, 2005, at the time she
“recorded a termination of employment for Mr. Griesbaum, [she] did not know who he
was, nor did [she] know that a worker’s compensation claim had been filed on his
behalf,” and “[t]he only reason [she] recorded an employment termination for Mr.
Griesbaum was because he had been on medical leave for longer than 365 days.” Id. at
109.
Griesbaum, however, stated in an uncontradicted allegation that no one notified
him that Aventis had terminated his employment until October 2002 when T. Rowe Price,
his section 401(k) plan administrator and life insurance provider, advised him of his post-
termination options. This notification caused Griesbaum’s workers’ compensation
attorney to make an inquiry with Aventis about what he believed to be the sudden and
inexplicable termination of Griesbaum’s employment. Aventis then produced a letter
dated January 16, 2002, approximately five months after the accident, from Maureen
Flinton, a disability nurse specialist for Aventis, to Griesbaum notifying him that Aventis
would terminate his employment if he had “not returned to work, or been released to
return to work, by the end of 12 consecutive months of medical leave,” i.e., on August 14,
2002. App. at 24. Griesbaum claims that he did not receive the letter and there is
evidence to support this assertion that we accept on this appeal. In this regard the record
shows that the zip code for Griesbaum’s address in Pottsville, Pennsylvania, is 17901-
3317, but that Aventis addressed the letter to him with the inaccurate zip code of 17909-

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4Griesbaum states in his brief that “[h]e also contends that his permanent disability was
a motivating factor in his discharge.” Appellant’s br. at 4. But he did not make this
allegation in the District Court, did not include it in his complaint, and does not expand
on the claim in his brief. Furthermore, in its answering brief Aventis asserts that
Griesbaum “has never (1) filed a claim or charge under the ADA or state disability law,
(2) claimed to be disabled under any such law, or (3) sought any accommodation under
those laws.” Appellee’s br. at 2 n.2. Griesbaum has not filed a reply brief challenging
this assertion and did not challenge it at the oral argument on this appeal. Accordingly,
this allegation is not properly before us and we will not address it. We also point out that
Griesbaum does not challenge Aventis’s medical leave termination policy as
discriminatory on its face. We therefore are satisfied that the only claim before us is
Griesbaum’s Pennsylvania common law contention that Aventis terminated his
employment in retaliation for seeking workers’ compensation benefits.
7
3317. Moreover, the letter misspells “Pottsville” as “Pottsvill.” Even though there is no
indication in the record that the post office returned the letter to Aventis as undelivered,
we regard the letter as having been undelivered and decide this case on that basis.
On August 5, 2004, Griesbaum filed this action against Aventis in the District
Court. He alleges that Aventis wrongfully discharged him contrary to Pennsylvania
common law in violation of public policy because it terminated his employment in
retaliation against him for seeking workers’ compensation benefits.4
Ultimately, Aventis moved for summary judgment, and the District Court granted
the motion on September 25, 2006. Griesbaum v. Aventis Pharm., No. 3:CV-04-1726,
2006 WL 2796160 (M.D. Pa. Sept. 25, 2006). The court in its opinion implicitly
acknowledged that under Pennsylvania common law an employer ordinarily may
discharge an at-will employee with or without cause, but it recognized that the
Pennsylvania Supreme Court has established an exception to the general rule in situations

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5The parties agree that Pennsylvania law is applicable here.
6In Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 614-17 (3d Cir. 1992), we
discussed the public policy exception more fully. Of course, the Pennsylvania Supreme
Court decided Rothrock after we decided Borse.
7The District Court discussed how the Pennsylvania Supreme Court in Rothrock, 883
A.2d at 516-17, utilized as a “a convenient analytical framework” a four-prong test an
intermediate appellate court in the State of Washington developed in Lins v. Children’s
Discovery Ctrs. of Am., Inc., 976 P.2d 168, 172 (Wash. Ct. App. 1999), in determining
whether public policy prohibits an employer from discharging an at-will employee. But
the Pennsylvania Supreme Court refused to adopt Washington substantive law with
respect to limitations on an employer’s right to discharge an at-will employee as “the
Washington legislature and its courts have been far less reluctant than Pennsylvania to
create exceptions to the precept that an employer may fire an at-will employee for any
reason.” Griesbaum, 2006 WL 2796160, at *3 (quoting Rothrock, 883 A.2d at 515-16).
Under the four-prong Washington test, the court inquires (1) whether a clear public policy
exists, (2) whether the policy will be jeopardized absent protection of the activity in issue,
(3) whether employers in general have an “overriding justification” for wanting to use the
activity in issue as a factor affecting the decision to discharge, and (4) whether the
particular employee’s activity in the case was a “substantial factor” in the employer’s
decision to discharge the employee. Lins, 976 P.2d at 172. In Pennsylvania a court
applies the four-prong test procedurally but not substantively.
The District Court, “[a]bsent clear direction from Pennsylvania courts to the
contrary,” also applied the burden-shifting framework regularly employed in Title VII
retaliation cases, as the District Court had done in other workers’ compensation
retaliation cases, and, as it pointed out that we have done in two nonprecedential
opinions. Griesbaum, 2006 WL 2796160, at *3. Significantly, both parties have framed
their arguments within this burden-shifting framework.
8
in which an employer terminates an employee’s position in retaliation against him for
filing a claim seeking workers’ compensation benefits.5 See Rothrock v. Rothrock Motor
Sales, Inc., 883 A.2d 511, 515 (Pa. 2005); Shick v. Shirey, 716 A.2d 1231, 1232 (Pa.
1998).6 The District Court then analyzed the claim under the familiar burden-shifting
framework that we regularly apply in Title VII retaliation cases7 and made the alternative

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On the appeal, Griesbaum does not argue that the District Court employed the
wrong methodology, but rather argues that it reached the wrong decision in applying the
burden-shifting framework. On the other hand, Aventis contends that using the burden
shifting framework the District Court reached the correct result. Accordingly, we will
apply the same burden-shifting framework on this appeal but will do so without
determining that the framework should be used.
8In this case we are not concerned with a retaliatory act other than an adverse
employment action. Thus, while we write the opinion continuously mentioning an
adverse employment action, we are not implying that a retaliatory action of a different
nature could not be actionable.
9
findings that (a) Griesbaum did not sustain his initial burden of establishing a prima facie
case of retaliation as he did not produce any evidence of a causal connection between the
filing of his workers’ compensation claim and the termination of his employment, and (b)
even if Griesbaum did establish a prima facie case, he failed to produce any evidence that
Aventis’s proffered legitimate reason for terminating his employment, i.e., the routine
application of its medical leave policy, was a pretext for retaliation. Griesbaum, 2006
WL 2796160, at *3-6.
Aventis recognized that Griesbaum established the first two elements of a prima
facie case, i.e., his pursuit of workers’ compensation benefits was a protected activity and
the termination of his employment was an adverse employment action.8 But the District
Court found that the one-year span between these events was not “unusually suggestive,”
and found that there was no other evidence suggesting that Aventis had a retaliatory
motive for terminating Griesbaum’s employment. Id. at *3-4. For example, the court
noted that there was no evidence that Aventis was hostile to Griesbaum because of his

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workers’ compensation claim or discouraged him from filing the claim, and, in fact, “it
appears that Aventis filed [his] . . . claim for him.” Id. at *4. Importantly, the court
recognized that at the time Chalmers terminated Griesbaum’s employment as a result of
her audit of the status of employees on medical leave, she did not know who Griesbaum
was or know that he had a workers’ compensation claim against Aventis.
The District Court found that Griesbaum’s attempted rebuttal of Aventis’s
purported nonretaliatory reason for terminating his employment did not include any
evidence that demonstrated that the reason was pretextual. In particular, the court found
that there was no evidence “to suggest that the policy was not uniformly applied, or that
employees who eschewed worker’s compensation claims were retained after a twelve-
month absence from work.” Id. at *5. The court rejected Griesbaum’s argument that the
alleged lack of notice of the termination of his employment satisfied his burden as it
believed that “[t]his fact is immaterial,” as “[w]hat is significant is that Aventis had a
policy of terminating employees who did not return to work after 12 consecutive months
of medical leave” and “there is no evidence that Aventis deviated from its policy when it
terminated Mr. Griesbaum.” Id. at *6.
Following the entry of the judgment against him Griesbaum appealed, raising the
following issues:
1. Whether or not the [District] Court erred in not taking into account the
fact that [Aventis] did not follow its own policy with respect to
[Griesbaum’s] termination.

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2. Whether or not the [District] Court erred by not properly applying the
Supreme Court’s test for retaliation as set forth in the decision of Burlington
Northern & Santa Fe Railway Co. v. White, 126 S.Ct. 2405, 2515 (2006).
Appellant’s br. at 2.
III. JURISDICTION AND STANDARD OF REVIEW
The District Court had diversity of citizenship jurisdiction under 28 U.S.C. § 1332
and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over
the order granting summary judgment, and will affirm that order if our review reveals that
“there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter [of] law.” Elliott & Frantz, Inc. v. Ingersoll-Rand Co., 457 F.3d
312, 318 (3d Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). A fact is “material” if proof of its
existence or non-existence might affect the outcome of the suit, and an issue is “‘genuine’
. . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510
(1986). “Moreover, a party will not be able to withstand a motion for summary judgment
merely by making allegations; rather, the party opposing the motion must go beyond its
pleading and designate specific facts by use of affidavits, depositions, admissions, or
answers to interrogatories showing there is a genuine issue for trial.” In re Ikon Office
Solutions, Inc., 277 F.3d 658, 666 (3d Cir. 2002) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986)). We review the facts in the light most

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favorable to the non-moving party, i.e., the party against whom summary judgment was
sought and entered. See Elliott & Frantz, 457 F.3d at 318.
As we indicated above, we are reviewing this case under a burden-shifting
framework. This framework had its origins in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817 (1973). Under this methodology to establish a prima facie case
of retaliation, a plaintiff must show that: (1) he engaged in a protected employee activity;
(2) he suffered an adverse employment action; and (3) there was a causal connection
between his participation in the protected activity and the adverse employment action.
See, e.g., Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005); Nelson v. Upsala Coll., 51
F.3d 383, 386 (3d Cir. 1995). If a plaintiff successfully establishes a prima facie case, the
burden of production of evidence shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its adverse employment action. See, e.g., Krouse v. Am.
Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997); Fuentes v. Perskie, 32 F.3d 759, 763
(3d Cir. 1994). If the defendant satisfies this requirement, the burden of production
returns to the plaintiff, who must show by a preponderance of the evidence that the
employer’s articulated reason for the adverse employment action is a pretext for a
retaliatory motive, i.e., he must “point to some evidence, direct or circumstantial, from
which a factfinder could reasonably either (1) disbelieve the employer’s articulated
legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely
than not a motivating or determinative cause of the employer’s actions.” Fuentes, 32 F.3d
at 764.

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9Griesbaum does not characterize the policies as “procedural” but that is what they are.
The substantive policy was to discharge an employee after he was on medical leave for
365 consecutive calendar days and Griesbaum does not contend that Aventis did not do
precisely that.
13
IV. DISCUSSION
A. Aventis’s Employment Termination Policies
Griesbaum contends that the District Court erred by failing to take into account the
circumstance that Aventis did not follow its own procedural employment termination
policies in the course of its termination of his employment.9 Specifically, he states:
[Aventis] did not follow its own in-house policies with regard to
terminating an employee, and terminated [him] in a peremptory fashion. A
jury could readily conclude that there is no other credible explanation for
[his termination] other than a desire to get rid of him due to his having filed
a worker’s compensation petition arising from his injuries in the auto
accident.
The District Court . . . minimiz[ed] the importance of the fact that
[Aventis] never even bothered to see to it that [he] had received a written
notice of his termination. He was afforded no exit interview, and not
provided with prior notice of his termination. Moreover, [Aventis] has
specific written procedures for terminating an employee, none of which
were followed in this case.
Appellant’s br. at 8. He further alleges that Aventis generally sends employment
termination letters by certified mail but it did not send the January 16, 2002 letter to him
in that way, and that Aventis usually communicates information to the employee

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10Griesbaum makes several other related arguments but we reject them as we conclude
that they are not meritorious. First, he argues that “there is a question of fact as to when
and who made the decision to terminate [him].” Appellant’s br. at 9. But this is not the
case as the only evidence in the record on this point is that Chalmers terminated his
employment effective August 14, 2002, in accordance with Aventis’s medical leave
policy. Griesbaum does not set forth any evidence to rebut this evidence. Rather, he
relies on mere speculation which, absent specific facts or reasonable inferences, is simply
not enough to overcome a motion for summary judgment. In fact, Griesbaum testified at
his deposition that he does not know who made the decision to terminate his employment.
Second, he speculates that Maureen Flinton, the disability nurse specialist, may
have known that he was receiving workers’ compensation benefits. But even if this
speculation is correct, the fact that she was aware of his compensation claim would not
support Griesbaum’s case as it is undisputed that Chalmers made the ultimate decision to
terminate his employment pursuant to her uniform application of Aventis’s medical leave
policy. Thus, the fact claimed to be in dispute is not material.
14
regarding the disability eligibility process over the telephone but did not do so here.
Griesbaum believes that Aventis’s failure to follow its employment termination
policies, in conjunction with verbal assurances from Aventis management that his
position was secure, “supports the idea that [he] was terminated for filing a worker’s
compensation claim,” id. at 9, and “[c]learly . . . gives rise to a jury question regarding
motivations,” id. at 11. Griesbaum argues that Aventis’s failure to follow its procedural
employment termination policies constitutes sufficient evidence to overcome Aventis’s
motion for summary judgment as it both (a) establishes a causal connection between the
filing of the compensation claim and his employment termination, and (b) establishes that
“the purported reason for [Aventis’s] discharge of [him] was actually pretext for
retaliatory discharge based on [his] filing for workers’ compensation benefits.” Id. at
20. 10

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The District Court was not convinced by this argument, either as it applied to
Griesbaum’s prima facie case or with respect to proving pretext. With respect to the
prima facie case, the District Court indicated that it was “troubling that Aventis cannot
present stronger evidence that it did in fact notify Mr. Griesbaum of his termination” but
that “[t]he lack of notification, though, does not present sufficient evidence that Mr.
Griesbaum’s termination was connected to his pursuit of worker’s compensation
benefits.” Griesbaum, 2006 WL 2796160, at *4 n.12.
(1.) Was there a causal connection between Griesbaum’s workers’ compensation
claim and the termination of his employment?
Judge Greenberg is hesitant to reach the same conclusion as the District Court with
respect to Griesbaum’s prima facie case predicated on Aventis’s deviation from its
employment termination procedures. He points out that “[t]o establish the requisite
causal connection a plaintiff usually must prove either (1) an unusually suggestive
temporal proximity between the protected activity and the allegedly retaliatory action, or
(2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. ex
rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). “In the absence of that
proof the plaintiff must show that from the ‘evidence gleaned from the record as a whole’
the trier of the fact should infer causation.” Id. (quoting Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 281 (3d Cir. 2000)).

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11It must be said that it is difficult to conceive that Aventis purposefully misdirected the
letter with the intention that Griesbaum not receive it. There seems to be no doubt but
that it was simple negligence that caused the error.
16
It is true that Aventis terminated Griesbaum’s employment approximately one year
after he began receiving workers’ compensation benefits and thus the interval between the
two events was not “unusually suggestive.” Nevertheless, Judge Greenberg concludes,
after reviewing the facts in the light most favorable to Griesbaum, that he has supplied
facts that could establish, in the language we used in Lauren W., that there was “a pattern
of antagonism coupled with timing to establish a causal link.” After all, Griesbaum
sought or there was sought for him workers’ compensation benefits in or shortly after
August 2001 and Aventis’s management gave what reasonably could be understood to be
false assurances that his position was secure soon after the accident. Moreover, there is
no doubt that Aventis incorrectly addressed the January 16, 2002 letter notifying him
about his eligibility for disability benefits and his potential termination and that
Griesbaum did not receive the letter.11 Furthermore, Aventis did not follow its general
policy to communicate information over the telephone to an employee with respect to the
disability eligibility process and did not notify him when it filled his position in February
2002.
Judge Greenberg also believes it is significant on a summary judgment motion that
when Aventis terminated his employment around August 2002 it did not notify him of the
action, and that Griesbaum did not receive notice that Aventis had terminated his

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12Judge Fisher and Judge Aldisert do not join in Part IV(A)(1) of this opinion because
they agree with the District Court that Griesbaum did not offer sufficient evidence to
support a causal connection between his workers’ compensation claim and termination in
order to establish a prima facie case. On the other hand Judge Greenberg believes that
Griesbaum has offered sufficient evidence of a causal link by showing a “pattern of
antagonism coupled with timing.” Op. at 16 (quoting Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). In support of this view Judge Greenberg
points to four pieces of evidence: (1) assurances by Aventis management to Griesbaum
regarding his continued employment, (2) the incorrect addressing of a letter to him, (3)
failure to communicate information about the disability eligibility process with him over
the telephone, and (4) failure to notify him of his termination.
Judge Fisher and Judge Aldisert find such evidence insufficient to establish the
requisite pattern of antagonism. Compare with Woodson v. Scott Paper Co., 109 F.3d 913
(3d Cir. 1997) (finding a pattern of antagonism where, between the time of filing a
complaint of racial discrimination with the EEOC and his termination, an African-
American manager was placed in charge of the smallest, worst performing division of the
company, faced “suggestions” from supervisors to drop his EEOC complaints, was denied
requested resources to effectively manage the division, received poor work evaluations,
and racially derogatory graffiti appeared in a restroom).
Judge Fisher and Judge Aldisert believe:
(1) Management’s well-wishes and assurances are of little, if any, value to a
17
employment until October 2002. Even at that time Griesbaum’s section 401(k) plan
administrator and life insurance provider rather than Aventis notified him of the
termination of his employment. In these circumstances, though Judge Greenberg
recognizes that he may be generous to Griesbaum in doing so, he believes, in reviewing
the facts in the light most favorable to him, that there is enough evidence to support a
conclusion that Griesbaum has demonstrated a “pattern of antagonism” that connects his
pursuit of workers’ compensation benefits to the termination of his employment, and thus,
he has established a prima facie case.12

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determination of antagonism because they are not themselves hostile and were made
substantially before management was aware of the extreme length of Griesbaum’s
absence.
(2) Aventis’ failure to correctly address the letter to Griesbaum notifying him of his
potential termination similarly provides little evidence of antagonism. Judge Greenberg
admits as much when he asserts that he has “no doubt but that it was simple negligence
that caused the error.” Op. at 17 n.11. Judge Greenberg’s refusal to believe Aventis
“purposefully misdirected the letter” argues against using such misdirection as evidence
of antagonism. Id.
(3) Aventis’ failure to communicate with Griesbaum over the telephone and failure to
notify him of his termination provide little evidence of antagonism. The Medical Leave
Policy was made available to Griesbaum and there is evidence that Aventis attempted to
send a letter to Griesbaum informing him of his status with respect to that policy. In
addition, failure to notify Griesbaum of his termination would appear to fall outside the
relevant time period for determining a pattern of antagonism. See Marra v. Philadelphia
Housing Authority, 497 F.3d 286, 302 (3d Cir. 2007) (“[C]ourts may look to the
intervening period[, between the protected activity and the adverse action,] for
demonstrative proof.”).
(4) It appears somewhat inconsistent for Judge Greenberg to conclude that, although such
evidence demonstrates a “pattern of antagonism,” it does not demonstrate “weakness,
implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s
proffered legitimate reason for its termination of Griesbaum’s employment. Op. at 22.
18
(2.) Was there a basis to conclude that Aventis’s proffered reason for terminating
Griesbaum’s employment was pretextual?
Even if we found that there was a causal connection between the workers’
compensation claim and the employment termination the finding would not matter if we
should conclude that Aventis has articulated a legitimate, nondiscriminatory reason for
terminating Griesbaum’s employment and there is insufficient evidence in the record
from which a jury could conclude that this proffered reason was a pretext for illegal

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retaliation. Because we unanimously do reach these conclusions, for this reason we will
affirm the District Court’s order granting Aventis’s motion for summary judgment.
With respect to the second step of the burden-shifting framework at the summary
judgment stage, it is clear that Aventis’s application of its 365-day limit on medical leave
was a legitimate, nondiscriminatory reason for terminating Griesbaum’s employment.
Consequently, we move to the third step of the burden-shifting framework at which time a
“court focuses on whether there is sufficient evidence from which a jury could conclude
that the purported reasons for defendant’s adverse employment actions were in actuality a
pretext for [retaliation].” Shaner v. Synthes (USA), 204 F.3d 494, 501 (3d Cir. 2000)
(internal quotation marks and citation omitted). Thus, to defeat a motion for summary
judgment, a plaintiff must point “to some evidence, direct or circumstantial, from which a
factfinder would reasonably either: (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer’s action.” Id. (internal quotation
marks and citation omitted); see also Sheridan v. E.I. Dupont de Nemours & Co., 100
F.3d 1061, 1067 (3d Cir. 1996) (en banc).
Griesbaum cannot satisfy this burden as his point that Aventis deviated from its
employment termination procedures is immaterial with respect to the issue before us. The
undisputed evidence establishes that Aventis, through Chalmers, terminated Griesbaum’s

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13Griesbaum in his brief does not contend that in other cases Aventis deviated from its
365-day termination policy.
14But even if she knew our result would be the same. After all, Griesbaum was on
medical leave for more than 365 continuous calendar days.
20
employment consistently with its uniformly-applied medical leave policy.13 Indeed, this
case is remarkable in that the employer is being accused of wrongful conduct because it
followed its substantive uniform policy in terminating an employee’s position. Usually in
adverse employment action cases the employee makes the opposite contention, i.e., that
the employer did not follow its own policies in taking the action. We do not go so far as
to suggest that there is a bright line safe harbor rule that an adverse employment action
undertaken by an employer pursuant to a uniformly applied clearly delineated rule never
can be regarded as having been taken on a pretextual basis as we have no need to consider
that possibility. Yet we recognize that it might be an appropriate rule for a court to
follow.
It is notable that Chalmers did not even know that Griesbaum filed a workers’
compensation claim and that there is no evidence that persons within Aventis that knew
of his claim exerted any influence on her decision to terminate his employment.14
Significantly, Griesbaum admitted at his deposition that he does not know of any reason
other than Aventis’s medical leave policy that caused it to terminate his employment, and
he indicated in his long-term disability “Resource Questionnaire” dated February 19,
2004, completed in support of his disability claim with Brookspire Services, Inc., the

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21
claims administrator, that Aventis fired him “for being on disability for 12 plus months.”
Supp. app. at 86. Thus, when it was in Griesbaum’s interest to assert that Aventis
terminated his employment because of its medical leave termination policy he was willing
to do so.
Accordingly, Griesbaum’s assertion with respect to Aventis’s deviation from its
employment termination procedures is immaterial as the deviations, particularly its failure
to give notice in January 2002 of the 365-day limitation on medical leave and its failure in
August 2002 to give him notice of the actual termination of his employment, do not
demonstrate “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions,” Fuentes, 32 F.3d at 765, in Aventis’s proffered legitimate reason for
terminating Griesbaum’s employment. Clearly, what is important here is Aventis’s
motivation, not Griesbaum’s awareness or unawareness of Aventis’s medical leave
employment termination policy or, indeed, his awareness or unawareness of the actual
termination of his employment. In the end, Griesbaum sets forth no evidence that could
support a conclusion that Aventis had a retaliatory motive for terminating his
employment.
We recognize that Griesbaum contends that there is a genuine issue of material
fact as to “what information was given to [him] regarding the medical leave of absence
policy.” Appellant’s br. at 21. Yet reviewing the facts in the light most favorable to him,
as we are required to do at this stage of the litigation, the fact that he did not receive the

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22
January 16, 2002 letter informing him regarding the potential termination of his
employment makes no difference. Lisa Lucifero, an Aventis senior human resources
generalist, stated in her affidavit dated May 26, 2005, that “[f]rom at least 2001 through
the present, Aventis has distributed [the leave policy] to its employees in a Policy Manual
and has made [it] available to its employees on the [internet].” Suppl. app. at 104.
Griesbaum admitted at his deposition that he received the manual distributed to him at
some point before the accident and he kept a copy of it. Id. at 45. He, however, could not
recall if he ever read the policy. Id. at 50. The manual also was available to him on the
internet, although Griesbaum testified that he was not aware that the policies were
available there. Id. at 46. Thus, whether or not Griesbaum was aware of them the
policies were not a secret.
Therefore, whether or not Griesbaum actually received the January 16, 2002 letter,
Aventis’s failure to send him the letter, at least in a way that he would receive it, is
inconsequential in a factual sense within the context of this case as Aventis provided
ample notice of its policy through at least two other means. Griesbaum’s choice to ignore
the notice provided to him does not shift the blame to Aventis. But even by shifting the
blame to Aventis for Griesbaum’s lack of knowledge of the 365-day limitation on medical
leave we would not change our result as we have no basis to conclude that its explanation
for terminating Griesbaum’s employment was a pretext for a retaliatory act.
B. Burlington Northern & Santa Fe Railway Co. v. White

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15As we already have indicated this case involves an adverse employment action, see
supra note 8, and thus we are not concerned with what other types of conduct could be
actionable under Pennsylvania law in a workers’ compensation retaliation case.
23
Griesbaum contends that the District Court improperly disregarded the Supreme
Court’s decision in Burlington Northern & Sante Fe Railway Co. v. White, 126 S.Ct.
2405 (2006), which he argues sets forth “a more stringent analysis of retaliation claims”
and must be applied “even in state law cases such as this one.” Appellants’ br. at 8.
Griesbaum argues that retaliation claims are broader than discrimination claims in that
discrimination claims are “limited to discrimination actions that affect the terms and
conditions of employment,” while retaliation claims extend to situations where the
alleged retaliatory actions are “materially adverse” to the employee, i.e., they “well might
have dissuaded a reasonable worker from [participating in the protected activity].”
Appellant’s br. at 22 (quoting Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir.
2006); Burlington Northern, 126 S.Ct. at 2415).
Though Griesbaum may set forth the law accurately, the holding in Burlington
Northern is not germane in this case.15 Burlington Northern dealt with what conduct is
actionable under the Title VII protections against retaliation. But Aventis does not deny
that its termination of Griesbaum’s employment was an “adverse employment action” and
undoubtedly if he had linked the termination to his receipt of workers’ compensation
benefits his case would have survived Aventis’s motion for summary judgment. See
Griesbaum, 2006 WL 2796160, at *3 n.9 (“Aventis admits that Mr. Griesbaum has

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established [that] . . . he suffered an adverse employment action when Aventis terminated
his employment.”). After all, it is hard to understand how any employment action could
be more adverse than a termination of the employment. Yet the issue before us is whether
Griesbaum produced sufficient evidence to establish that Aventis had a retaliatory motive
for the termination to overcome its motion for summary judgment and inasmuch as
Burlington Northern has no bearing on an issue of that nature it is not germane here.
V. CONCLUSION
For the foregoing reasons the order of September 25, 2006, will be affirmed.

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