Paid Civil Expert Testimony Does Not Create a Pennsylvania Public-Policy Wrongful-Discharge Claim; ADA Claims Fail Absent Pretext or Ability to Work

1. Introduction

J'Amy Kluender v. United States Liability Insurance Co., Inc. is a nonprecedential Third Circuit decision affirming dismissal and summary judgment for an employer, USLI, in a dispute brought by a former claims examiner, J’Amy Kluender. The litigation arose against a background of serious illness (thyroid cancer), intermittent protected leave, and workplace accommodation discussions, followed by termination after the employee disclosed during deposition that she had performed paid expert/consulting work related to claims handling while employed.

The appeal presented three core issues: (1) whether Pennsylvania’s public-policy exception to at-will employment supports a wrongful-termination claim based on termination allegedly connected to deposition testimony as a paid expert witness in a civil matter; (2) whether termination shortly after the employee’s deposition in her ADA case constituted ADA retaliation; and (3) whether the employer failed to accommodate disability when the employee conceded she could not work (even with accommodations) at the relevant time.

2. Summary of the Opinion

The Third Circuit affirmed across the board:

  • Wrongful termination (Pennsylvania public policy): properly dismissed because the cited criminal retaliation statute, 18 Pa. Cons. Stat. Ann. § 4953, does not extend protections to civil witnesses in the way the plaintiff asserted, and the plaintiff provided no authority establishing a private civil remedy or a sufficiently “clear mandate of public policy” comparable to recognized exceptions.
  • ADA retaliation: summary judgment affirmed because USLI articulated a legitimate, non-retaliatory reason (conflict-of-interest policy concerns arising from newly learned facts), and the plaintiff failed to produce evidence of pretext under the governing burden-shifting framework.
  • ADA failure to accommodate: summary judgment affirmed because undisputed evidence showed the plaintiff could not perform the essential functions of the job with or without accommodation when she went out on leave, defeating a required element of an accommodation claim.

3. Analysis

A. Precedents Cited

1) Appellate standards and procedural posture

  • Fowler v. UPMC Shadyside (plenary review of dismissal): The court relied on Fowler to frame de novo review of the District Court’s Rule 12 dismissal of the wrongful-termination claim.
  • Blunt v. Lower Merion Sch. Dist. (plenary review of summary judgment): Used to establish de novo review of the District Court’s summary judgment rulings.
  • Anderson v. Liberty Lobby, Inc. (genuine dispute standard): Cited for the governing definition of a “genuine” dispute of material fact under Rule 56.
  • In re Wettach, Jenkins v. Superintendent of Laurel Highlands, and Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist. (issue preservation/forfeiture): These cases shaped what the Third Circuit would consider on appeal—limiting review to issues properly developed in the opening brief and rejecting arguments raised too late.

2) Pennsylvania public policy wrongful discharge

  • Clay v. Advanced Computer Applications, Inc.: The court treated Clay as the controlling articulation of Pennsylvania’s rule that at-will employees generally have no wrongful-discharge claim, with exceptions only in “the most limited of circumstances” where termination threatens a clear public-policy mandate.
  • Reuther v. Fowler & Williams, Inc.: Presented as an exemplar of the narrow public-policy exception—jury service in criminal cases—demonstrating the type of constitutionally and institutionally significant public interest that may justify a judicially recognized exception.
  • Commonwealth v. Nevels: This case was pivotal to the statutory argument. The Third Circuit used Nevels to support its conclusion that 18 Pa. Cons. Stat. Ann. § 4953 applies only to witnesses in criminal cases, not civil proceedings, undermining the plaintiff’s attempt to ground a public-policy claim on that statute.

3) ADA retaliation and pretext

  • Canada v. Samuel Grossi & Sons, Inc.: Cited for applying the “familiar McDonnell Douglas burden-shifting framework” to ADA retaliation claims and for the governing articulation of the employer’s burden (legitimate non-retaliatory reason) and the plaintiff’s ultimate burden (showing pretext and retaliatory motive).
  • Carvalho-Grevious v. Delaware State Univ.: Supplied the Third Circuit’s pretext standard—requiring evidence of “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” sufficient for a reasonable juror to disbelieve the employer’s explanation and infer retaliation.

4) ADA accommodation: “qualified individual” and essential functions

  • Hohider v. United Parcel Serv., Inc.: Used for the core elements of a failure-to-accommodate claim, emphasizing the requirement that the employee be able to perform the job’s essential functions with or without reasonable accommodation.
  • Pena v. Honeywell Int'l, Inc.: Though a First Circuit case, it was persuasive support for the proposition that summary judgment is proper where the plaintiff admits she was not well enough to perform essential functions, even with accommodations.

B. Legal Reasoning

1) Why the public-policy wrongful-termination theory failed

The plaintiff attempted to anchor a civil wrongful-discharge claim in a criminal witness-retaliation statute, 18 Pa. Cons. Stat. Ann. § 4953, arguing that firing her for deposition testimony violated Pennsylvania public policy. The Third Circuit rejected that pathway for two related reasons:

  1. Statutory scope problem: By relying on Commonwealth v. Nevels, the panel treated the statute as not providing the civil-witness protection the plaintiff claimed. If the statute does not apply to civil proceedings in that fashion, it cannot supply the “clear mandate” needed to expand Pennsylvania’s narrow public-policy exception.
  2. No demonstrated private civil remedy / no analogous public-policy exception: Under Clay v. Advanced Computer Applications, Inc., Pennsylvania courts recognize public-policy wrongful discharge only in rare, well-justified circumstances. The opinion contrasted the plaintiff’s situation with Reuther v. Fowler & Williams, Inc. (jury service in criminal cases). The court found the plaintiff did not establish that paid civil expert testimony is comparable in constitutional or institutional importance, nor did she cite authority recognizing a private damages action on these facts.

Importantly, the panel also noted (without extended discussion) that the plaintiff’s invocation of witness immunity doctrine did not supply relevance to her wrongful-discharge theory.

2) Why the ADA retaliation claim failed at the pretext stage

The court assumed (without deciding) that the plaintiff could make out a prima facie case. The dispute therefore turned on the second and third steps of the burden-shifting analysis described in Canada v. Samuel Grossi & Sons, Inc.: whether USLI articulated a legitimate non-retaliatory reason, and whether the plaintiff could prove that reason was pretext.

USLI’s stated reason was that the plaintiff’s paid expert/consulting activity relating to claims handling (including references to USLI and a lack of internal consultation) violated its conflict-of-interest policy. The plaintiff’s evidence of pretext did not meet the Carvalho-Grevious v. Delaware State Univ. standard:

  • Temporal proximity alone was insufficient in context: Although termination followed soon after the deposition, the record supported USLI’s position that the deposition was the first time it learned key details—paid work, references to USLI, and failure to consult—making the timing consistent with “new information” rather than retaliatory animus.
  • Disagreement with the employer’s interpretation of its policy was not evidence of pretext: The court treated the policy as broad and requiring consultation even if only a “possibility” of conflict existed; the employee’s personal belief that no conflict existed did not create a triable issue about USLI’s actual motivation.
  • Record contradiction claim failed: The plaintiff argued the decisionmaker already knew about the outside work, but the opinion recounts testimony that the decisionmaker reviewed litigation papers earlier and learned the critical details only at the plaintiff’s deposition—undercutting the claim of inconsistent justification.

3) Why the ADA failure-to-accommodate claim failed: inability to work defeats “qualified” status

The panel focused on the element emphasized in Hohider v. United Parcel Serv., Inc.: the employee must be “qualified” to perform essential job functions with or without reasonable accommodations. The record was undisputed that when the plaintiff went out on leave in May 2021 she could not work at all, and medical providers confirmed that inability. Accommodation law is directed at enabling performance—not at imposing liability where the employee cannot perform the job’s essential functions even with adjustments. The court reinforced this logic by citing Pena v. Honeywell Int'l, Inc..

The opinion also notes that USLI and the plaintiff were actively discussing accommodations and that the supervisor had granted most requests before the plaintiff took leave—further narrowing any claim that the employer refused to engage or categorically denied accommodation.

C. Impact

Although designated “NOT PRECEDENTIAL,” the decision provides a clear, practice-oriented roadmap on recurring issues:

  • Pennsylvania wrongful discharge remains exceptionally narrow: Attempting to transform a criminal statute into a civil wrongful-discharge claim faces steep headwinds absent clear statutory coverage, an established private remedy, or a public-policy interest akin to those previously recognized (as illustrated by Clay and Reuther).
  • Retaliation claims are vulnerable where the employer can tie timing to newly discovered conduct: The opinion illustrates how “temporal proximity” may be neutralized when the adverse action follows the employer’s first acquisition of actionable information, and when the plaintiff cannot show contradictions under Carvalho-Grevious.
  • Accommodation liability hinges on capacity to work: Where the employee concedes inability to work (even with proposed accommodations), courts may resolve failure-to-accommodate claims at summary judgment based on the “qualified individual” requirement highlighted in Hohider.
  • Employer conflict-of-interest policies may be outcome-determinative: Employers with clearly drafted policies requiring disclosure/consultation (even for potential conflicts) are better positioned to defend termination decisions as legitimate and non-retaliatory, provided they can document when and how they learned the relevant facts.

4. Complex Concepts Simplified

At-will employment
In Pennsylvania, most employment is “at-will,” meaning the employer can terminate for any reason not prohibited by law—unless a narrow exception applies.
Public-policy wrongful discharge
A limited, court-created exception allowing damages if firing an at-will employee would undermine a “clear mandate” of public policy. Under Clay v. Advanced Computer Applications, Inc., it is reserved for rare circumstances.
Private right of action
The ability of an individual to sue for damages under a statute. A criminal statute may express policy but does not necessarily authorize private civil lawsuits.
McDonnell Douglas burden-shifting
A common method for analyzing retaliation/discrimination claims: (1) employee shows a prima facie case; (2) employer offers a legitimate reason; (3) employee proves the reason is pretext masking unlawful motive.
Pretext
Evidence that the employer’s stated reason is not the real reason. Under Carvalho-Grevious v. Delaware State Univ., the employee must point to meaningful inconsistencies or implausibilities, not merely disagree with the employer’s judgment.
Essential functions / qualified individual (ADA)
The ADA protects employees who can perform the core duties of the job, with reasonable accommodations if necessary. If the employee cannot work at all at the relevant time, they are typically not “qualified” for purposes of a failure-to-accommodate claim (as applied via Hohider v. United Parcel Serv., Inc.).

5. Conclusion

The Third Circuit’s decision underscores three practical rules. First, Pennsylvania’s public-policy exception to at-will employment remains tightly confined; reliance on 18 Pa. Cons. Stat. Ann. § 4953 did not supply a viable civil wrongful-discharge theory, particularly in light of Commonwealth v. Nevels and the narrow framing of Clay v. Advanced Computer Applications, Inc.. Second, ADA retaliation claims will fail without concrete pretext evidence meeting Carvalho-Grevious v. Delaware State Univ., especially where termination follows newly learned, policy-relevant facts rather than protected activity alone. Third, an ADA accommodation claim cannot proceed where undisputed evidence shows the employee could not perform essential job functions with or without accommodation, consistent with Hohider v. United Parcel Serv., Inc..