Peggy Snyder v. DOWDUPONT, INC., a Delaware Corporation, and E.I. DU PONT DE NEMOURS and COMPANY

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1235
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PEGGY SNYDER,
Appellant
v.
DOWDUPONT, INC., a Delaware Corporation, and
E.I. DU PONT DE NEMOURS and COMPANY
_______________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1:18-cv-01266)
District Judge: Honorable Colm F. Connolly
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Submitted Under Third Circuit L.A.R. 34.1(a)
on January 13, 2022
Before: AMBRO, BIBAS, and ROTH, Circuit Judges
(Filed: May 10, 2022)
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OPINION*
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BIBAS, Circuit Judge.
Employers may not punish employees for taking medical leave, but they need not abide
abuse. Here, an employer credibly thought that an employee was abusing her many leaves,
* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.

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so it surveilled and then fired her. Because she does not show that the employer’s reasons
were pretexts for punishing her, we will affirm summary judgment for the employer.
I. BACKGROUND
Peggy Snyder started working at DuPont in 1997. She worked at DuPont’s Tralee Park
plant, where she made and inspected rubber parts. Her job was “[m]ostly” sedentary. JA
163–64.
Sadly, Snyder was plagued by migraines and sinus infections. Despite many surgeries,
her ailments persisted. She missed work often, taking roughly twenty medical leaves. Each
time, DuPont granted her leave request, paid her salary under its short-term disability plan,
and let her return to work with “the same salary and benefits.” JA 872.
But DuPont started to suspect that Snyder was abusing its disability policy. It noticed
that Snyder had a “pattern of high absences that seemed to coincide with the maximum
amount of [federally mandated medical-leave] time.” JA 336; accord JA 814–15. Plus,
employees reported seeing her out and about while she was on medical leave, supposedly
recuperating. One even spotted her boating.
So around 2014, DuPont hired a private investigator to surveil Snyder. After two weeks,
he turned up “nothing worthwhile.” JA 747. Yet DuPont remained suspicious and kept
surveilling her, on and off, over the next two years.
In 2016, DuPont’s suspicions were confirmed. After foot surgery, Snyder took about
three months’ leave. She told DuPont’s nurse that she was not supposed to drive or put any
weight on her foot. Yet DuPont heard that she had been seen “walking around” at a party.

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JA 716–17. So it resumed surveillance that spring and recorded Snyder driving and walking
with a single crutch.
By late June, Snyder was back at work part time. Just over a month later, she worked
normal shifts for a few days. But soon, she reported severe symptoms and was put back on
reduced hours. Around that time, she told DuPont that her eight-hour shifts were “killing”
her and complained of foot pain and swelling. JA 160.
In the meantime, DuPont kept getting troubling surveillance reports. Snyder was re-
peatedly seen walking without apparent difficulty. After one short shift, she was spotted
leaving a Wal-Mart after getting a manicure and pedicure. And when she returned home,
she was then seen riding a lawnmower for about an hour. In DuPont’s view, these activities
belied her claim that she could not work.
So DuPont fired her. As its human-resources manager explained, it did so because she
had lied about her symptoms and “used DuPont disability leave for purposes that [were]
inconsistent with her recovery and counter to her doctor’s orders.” Supp. App. 73.
Snyder sued DuPont under the Family Medical Leave Act (FMLA), alleging retaliation.
DuPont, she said, had punished her by surveilling and firing her because she had taken sick
leave under the Act. The District Court granted summary judgment for DuPont, holding
that she had not made a prima facie case of FMLA retaliation. But even if she had, ruled
the court, she had failed to show that DuPont’s stated reasons were pretexts. She now ap-
peals to us. We review de novo, viewing the facts in the light most favorable to Snyder and
drawing all reasonable inferences in her favor. Tundo v. County of Passaic, 923 F.3d 283,
286–87 (3d Cir. 2019).

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II. FMLA RETALIATION CLAIMS
Employers may not “retaliat[e] against an employee … for … exercis[ing] FMLA
rights.” 29 C.F.R. § 825.220(c). Because Snyder’s case is based on circumstantial evidence,
we ask three questions:
1) Did Snyder make out a prima facie case of retaliation?
2) If she did, has DuPont offered a legitimate, non-retaliatory reason for its adverse
action?
3) If DuPont did, has Snyder proven, by a preponderance of the evidence, that
DuPont’s stated reason was just a pretext to retaliate?
Capps v. Mondelez Glob., LLC, 847 F.3d 144, 152 & n.5 (3d Cir. 2017); McDonnell Doug-
las Corp. v. Green, 411 U.S. 792, 802–04 (1973); Lichtenstein v. Univ. of Pittsburgh Med.
Ctr., 691 F.3d 294, 302 (3d Cir. 2012). Snyder never disputes that this three-step frame-
work applies.
Snyder raises two adverse employment actions: DuPont’s surveillance and its firing
her. Firing, of course, is an adverse employment action. Though we question whether sur-
veillance by itself is too, DuPont conceded that point. So we assume (without deciding)
that it was and analyze each action separately.
We also need not decide whether Snyder made out her prima facie case. Even if she
did, DuPont had legitimate reasons to surveil and fire her, and she fails to show that those
were pretexts.

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III. DUPONT’S SURVEILLANCE WAS NOT PRETEXTUAL
A. DuPont surveilled Snyder because it thought she was abusing her leaves
DuPont says it had Snyder watched because it worried that she was abusing her medical
leaves. That is a legitimate reason to surveil her. See Callison v. City of Philadelphia, 430
F.3d 117, 121 (3d Cir. 2005).
Several DuPont employees reported that Snyder was boating and doing other physical
activities inconsistent with her medical leave. Plus, Snyder kept maxing out her medical
leaves, raising suspicion. The burden thus shifts to Snyder to show that DuPont’s claimed
concern was a pretext for retaliation.
B. Snyder fails to show that DuPont’s reason was pretextual
Snyder does not carry that burden. At summary judgment, she could do that either of
two ways. She could point evidence from which a jury could reasonably “disbelieve”
DuPont’s explanation. Or she could point to evidence from which it could find that retali-
ation was “more likely than not a motivating” factor. Lupyan v. Corinthian Colls., Inc., 761
F.3d 314, 324 (3d Cir. 2014). But she does neither.
First, Snyder points to DuPont’s repeated assurances that she met its “High Ethical
Standards” as proof that DuPont was not suspicious. But the positive marks are no “con-
tradiction[ ]” in DuPont’s story. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).
DuPont took pains to hide its suspicions, keeping its surveillance covert. Thus, the positive
reviews do not discredit DuPont’s claim that it suspected her.
Next, Snyder attacks DuPont’s explanation for resuming surveillance in 2016. DuPont
says it started watching her again because an employee reported seeing Snyder at a pool

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party. As DuPont explained, “she should be recuperating and that’s not recuperating.” JA
718. Snyder responds that the employee never mentioned a pool party specifically. Still,
his unrebutted testimony supports the gist of DuPont’s story: he “think[s]” he told a man-
ager that Snyder was spotted at a party. JA 833. Plus, the manager confirmed it. So this
attack fails too.
IV. SNYDER’S FIRING WAS NOT PRETEXTUAL
A. DuPont fired Snyder for lying and abusing her leaves
DuPont says it fired Snyder both for lying about her disability and for abusing medical
leave. These are legitimate reasons. Capps, 847 F.3d at 152. And DuPont offers ample
evidence in support. For instance, Snyder admits that she told DuPont that she could not
drive or put weight on her foot. Yet she was repeatedly caught violating those restrictions
and walking with ease. So the burden shifts back to Snyder.
B. Snyder does not show that DuPont’s justifications were pretextual
Snyder fails to show that DuPont’s reasons were pretexts. Only two objections are
worth discussing. First, Snyder says she could not have abused her leave because she com-
plied with her medical restrictions, which were more flexible than DuPont describes. For
support, she points to a note from her doctor in May 2016, saying she could start doing
more physical activity “[a]s [t]olerated.” Appellant’s Br. at 30.
True, that form suggests that Snyder’s medical restrictions were flexible. Yet even if
DuPont had this form, it had ample reason to think they were not flexible: Snyder herself
reported that she “c[ould] not drive” nor put weight on her foot. JA 154. Plus, other medical
documents corroborated her account. See, e.g., Supp. App. 10, 17. Given that, DuPont

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reasonably thought that she should have been back at her “[m]ostly” sedentary job by then.
JA 949.
Second, Snyder argues that her manager’s testimony proves pretext. He testified thus:
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 minimum amount
of time to get the FMLA clock reset and then immediately go back out and
then she would return to work again.
JA 829.
Though Snyder reads the second and third sentences as showing pretext, we disagree.
In context, her manager was explaining that DuPont had fired her for not just one or two
leaves, but an incessant pattern of abuse. His statement fits with that reasoning. Plus, he
made it at a deposition nearly four years later, long after she was fired. No reasonable jury
could read this lone, belated comment as proving retaliation.
* * * * *
Because DuPont has offered legitimate reasons for surveilling and firing Snyder and
she has not shown pretext, we will affirm the District Court’s grant of summary judgment.

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