GARDNER v. SEPTA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT GARDNER, : CIVIL ACTION

Plaintiff, :

:

v. : No. 17-4476

:

SEPTA, :

Defendant. :

OPINION

Plaintiff, Robert Gardner, brought this action against his current employer,

Defendant, Southeastern Pennsylvania Transportation Authority (“SEPTA”), under

the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human

Relations Act (“PHRA”). Plaintiff alleges that he is an individual with a disability

for the purposes of the ADA and PHRA, and that Defendant violated his rights by

not granting him a reasonable accommodation, by failing to engage in the

interactive process, and by retaliating against him because of his claimed disability.

Currently before the Court is Defendant’s Motion for Summary Judgment and

Memorandum of Law (ECF No. 40), Plaintiff’s Memorandum of Law in

Opposition to the Motion (ECF No. 43), Defendant’s Reply Memorandum of Law

in Further Support of its Motion (ECF No. 44), and Plaintiff’s Sur-reply in Further

Opposition to the Motion (ECF No. 45).

For the following reasons, the Court grants Defendant’s Motion for

Summary Judgment in the accompanying Order.

I. BACKGROUND

Plaintiff began working for SEPTA as a bus operator in January 2014. ECF

No. 40-2 ¶ 2. In March 2014, Plaintiff submitted an application requesting that

SEPTA transfer him from a bus operator to a rail operator. ECF No. 40-4 at 24.

SEPTA entered into a collective bargaining agreement (“CBA”) with Transport

Workers Union Local 234 City Transit Division (“Local 234”). ECF No. 40-5;

ECF No. 40-6. As a bus operator, Plaintiff was a member of Local 234, and as a

SEPTA employee, Plaintiff was subject to the CBA. ECF No. 40-4 at 17. Section

305(e) of the CBA governs Plaintiff’s application for transfer to rail operator,

which states that such transfers are granted based on the applicant’s seniority

within his/her division. ECF No. 40-5 at 30.1

1 Section 305. Transfers. (e) Vacant or new jobs not filled by promotion will be filled by

transfer of employees from other jobs, groups, or locations, (depots) within the same division

who meet all qualifications for the job and are fully qualified to perform all of the work of the

job to which the transfer is to be made. Such transfers will be made from among those

employees so qualified whose applications, made as provided in subsection (a), are on file at the

time the vacancy or new job occurs, and will be made in the order of division seniority. If such

qualified employees are not available within the same division, the vacant or new jobs will be

filled by transfers of employees from other divisions within the same department who meet all

qualifications for the job and are fully qualified to perform all of the work of the job to which the

transfer is to be made. Such transfer will be made from among those employees so qualified

whose applications, made as provided in subsection (a), are on file at the time the vacancy or

new job occurs; and will be made in the order of department seniority. If such qualified

employees are not available within the same department, the vacant or new jobs will be filled by

transfer from among those employees so qualified whose applications, made as provided in

subsection (b), are on file at the time of vacancy or new job occurs; and such transfers will be

made in the order of Authority seniority. Whenever there are no qualified employees on the

transfer files, the Authority will advertise any maintenance job for seven (7) days before filling it

with a newly hired employee. Among employees who file for transfer as a result of said

advertisement, the selection from among qualified applicants will be made in the same order as if

they had filed transfers as set forth heretofore.

On June 4, 2015, Plaintiff was involved in a work-related motor vehicle

accident and suffered injuries as a result. ECF No. 40-2 ¶ 3. He received medical

treatment for his injuries on June 5, June 10, and June 17, 2015, and filed a

workers’ compensation claim in connection therewith. ECF No. 40-2 ¶ 4. On June

17, 2016, following his treatment, the doctors cleared Plaintiff to return to full-duty

work, without restrictions. ECF No. 40-7 at 2-3, 9-12.

On July 28, 2015, Plaintiff underwent a follow-up evaluation with Dr.

Lawrence Axelrod, Medical Director of WORKNET Occupational Medicine. ECF

No. 40-7 at 16. This time, Dr. Axelrod issued a Physical Capacities Form that

cleared Plaintiff for work, with restrictions. Id. In contrast to Plaintiff’s June 17,

2015 medical evaluation, Dr. Axelrod opined that Plaintiff was “OK to operate rail

vehicles but not bus.” Id. In a separate report, Dr. Axelrod pointed out that

Plaintiff “requested [that Dr. Axelrod] continue to medically disqualify him from

driving a bus and [Plaintiff] requested that [Dr. Axelrod] allow [Plaintiff]

specifically to operate a rail vehicle (trolley) ... considerations must be given to the

possibility of intentional manipulative type behaviors.” ECF No. 40-7 at 5-7.

SEPTA decided to assign Plaintiff to a temporary light-duty position. ECF No. 40-

7 at 14.

On August 5, 2015, Plaintiff submitted a letter to SEPTA requesting an

ADA accommodation for his injuries. ECF No. 43-11 at 46. In that letter, Plaintiff

stated:

[a]fter being injured on duty June 04, 2015, I specifically request

medical disqualification from the position of Bus Operator, because I

cannot perform the essential elements of the job with or without

reasonable accommodation. Specifically, I am no longer medically

able to perform frequent repetitive arm/hand motion or frequent gross

manipulation, which are physical requirements of the Bus Operator

position.

Id.2 Attached to Plaintiff’s August 5, 2015 letter was a note from Dr. Mark Allen,

Plaintiff’s personal physician, in which Dr. Allen stated that Plaintiff has been

“under my care after an injury while at work on June 4, 2015 ... Estimated length

of employee disqualification from job notes that he is capable of driving a trolley

car only.” Id. at 48.3

On August 11, 2015, Dr. Axelrod conducted another follow-up evaluation

with Plaintiff in order to assess his ability to return to work. ECF No. 40-7 at 5-7.

In his subsequent report, Dr. Axelrod stated, “[Plaintiff] had no change in his

overwhelmingly axial neck complaints of pain with no radicular quality symptoms

2 At ECF No. 43-1 ¶ 19, Plaintiff states, “On August 5, 2015, Plaintiff requested accommodation

under the ADA from SEPTA because of his cervical injuries dating back to 2014 requesting that

he be reassigned to another permanent position that would accommodate his disability, such as

Trolley Operator and supported his request with an August 5, 2015 letter from Dr. Allen.” No

where in Plaintiff’s letter (Exhibit P-48) does Plaintiff state “cervical injuries dating back to

2014.”

3 No where in Dr. Allen’s letter (Exhibit P-5) does Dr. Allen state “cervical injuries dating back

to 2014.”

to the upper extremities ... [h]e was working in a modified capacity” and Plaintiff

asked that Dr. Axelrod reproduce the same restrictions as Dr. Allen. Id. at 7.

Despite Plaintiff’s request, however, Dr. Axelrod opined that Plaintiff was capable

of returning to his regular duties as a bus operator:

At the conclusion of the office visit dated 8/11/15 I informed

[Plaintiff] that since he had axial neck complaints of pain without

radicular quality features, in my professional medical opinion within a

reasonable degree of medical certainty he was immediately

physically capable of returning to his regular full duty position driving

a bus for SEPTA Buses with no restrictions or accommodations.”

Id. Plaintiff disagreed with Dr. Axelrod’s opinion. Id.

On September 2, 2015, Plaintiff completed a “SEPTA Request for

Reasonable Accommodation” form and delivered it to SEPTA’s ADA Compliance

Consultant for its Equal Employment Opportunity/Affirmative Action and

Employee Relations (“EEO/AA/ER”) Department, Jacqueline Hopkins. ECF No.

40-2 ¶ 5. Plaintiff indicated on the form that his impairment began on June 4,

2015, and requested that SEPTA transfer him to a rail operator position because he

believed it would cause him less physical stress. ECF No. 40-7 at 22-24; ECF No.

40-4 at 15-16. At the time, Plaintiff was number 35 out of 37 on the seniority list

for bus-to-rail transfers. ECF No. 40-7 at 62.

On September 4, 2015, Ms. Hopkins discussed Plaintiff’s accommodation

request with him over the telephone and Plaintiff memorialized that conversation

in a follow-up e-mail. ECF No. 40-7 at 65-66. Ms. Hopkins explained the

difference between identifying a reasonable accommodation and the transfer

process under the CBA. Id. at 65.

On September 17, 2015, SEPTA received a note from Dr. Allen that cleared

Plaintiff to return to full work duties as a bus operator. Id. at 77. Specifically, Dr.

Allen’s note stated, “[Plaintiff] is cleared to return to full duties at work” and is

dated “9/16/15.” Id. In response, Ms. Hopkins asked Plaintiff to explain the

discrepancy between his physician’s reports and his ability to safely perform the

essential functions of his job as a [bus] operator, with or without accommodations.

Id. at 75. Plaintiff responded on September 30, 2015, by submitting two additional

Physical Capacities Forms that restated Dr. Allen’s prior opinion—that he was

only capable of driving a rail car, but not a bus—as well as a new report stating

that Plaintiff’s condition was “[u]nchanged.” Id. at 79-80; 82-83. Meanwhile, on

September 23, 2015, Plaintiff e-mailed Ms. Hopkins and described his injuries as

follows:

I have disabilities as a result of being permanently disabled and/or

limited in range of motion resulting from both the congenital fusion of

my thoracic spine (T1-T2) and the surgical fusion of my cervical (C4-

C7) spine that required implantation of a prosthetic device on

November 17, 214 (sic) and covered under the ADA, which I have

provided you sufficient evidence to support, in the form of CT scan …

ECF No. 43-11 at 22.

On September 29 and September 30, 2015, Plaintiff submitted two SEPTA

Operator’s Accident/Incident Reports asserting that he was unable to operate a bus

safely because of physical conditions related to the June 4, 2015 accident to

SEPTA’s Assistant Director for the Southern District, Thomas Ropars. ECF No.

40-7 at 85; ECF No. 40-8 at 2. Mr. Ropars e-mailed Plaintiff and explained that

his reasonable accommodation request was not properly the subject of an accident

or incident report; however, because Plaintiff stated in his report that it was unsafe

for him to drive a bus, he must determine Plaintiff unfit for duty and place him on

sick leave per SEPTA’s Fitness for Duty policy. ECF No. 40-8 at 4-6. According

to SEPTA’s Fitness for Duty policy, “[e]mployees must not perform any service

while affected by any condition that could impair their ability to perform their

duties properly.” Id. at 8. In such cases, “[a] medical certificate stating the nature

of the sickness and certifying that the employee is fit for duty must be produced, if

required by the employee’s supervisor, before the employee may return to work.”

Id. According to Section 501(n) of the CBA, an employee returning to work after

an absence due to illness or injury may do so subject only to the approval of

SEPTA’s Medical Department. ECF No. 40-6 at 26. As such, Mr. Ropars advised

Plaintiff that before he could return to work he would need to provide the medical

clearances required by SEPTA’s Fitness for Duty policy and CBA Section 501(n).

ECF No. 40-7 at 60.

The CBA further provides that union members who cannot report to work

because of injury or sickness must go on sick leave; therefore, until Plaintiff

obtained the necessary medical clearances and was permitted to return to work, he

was placed on sick leave. ECF No. 40-6 at 24-27. While on sick leave, Plaintiff

received all sick benefits to which he was entitled under the CBA. ECF No. 40-8

at 10-22.

On October 1, 2015, Ms. Hopkins wrote Plaintiff to advise that she received

the additional material he submitted and invited Plaintiff to meet with SEPTA’s

Medical Director, Dr. Jeffrey Erinoff, SEPTA’s Director of EEO/AA & Employee

Relations, Lorraine McKenzie, and herself. Id. at 24. On the same day, Plaintiff

dual-filed a charge of discrimination with the Equal Employment Opportunity

Commission and the Pennsylvania Human Relations Commission. Id. at 26-28.

On October 5, 2015, Gardner filed a grievance against SEPTA through

Local 234. Id. at 30. The grievance stated, “[t]he Union protests the Authority not

granting reasonable accommodation request to Robert Gardner, #17542, for his

disability.” Id.

On October 7, 2015, Plaintiff attended an interactive process meeting with

Ms. Hopkins, Ms. McKenzie, and Dr. Erinoff. Id. at 32. On Plaintiff’s behalf, Ms.

Hopkins investigated how much longer Plaintiff “could expect to remain on those

transfer lists for the trolley position.” Id. at 34. On October 19, 2015, SEPTA’s

Labor Relations Manager, Bud Scott, advised Ms. Hopkins by e-mail that Local

234 President Willie Brown was opposed to circumventing the provisions under

the CBA to allow Plaintiff’s transfer to rail operator. Id.4

On October 28, 2015, Ms. Hopkins wrote to Plaintiff and summarized the

history of the interactive process to date. Id. at 36-50. Ms. Hopkins informed

Plaintiff that due to the conflicting medical evaluations he had previously

submitted, SEPTA intended to rely on the upcoming Independent Medical

Examination (“IME”) scheduled for October 21, 2015 for Plaintiff’s pending

workers’ compensation claim. Id at 36-37.

On October 21, 2015, Dennis P. McHugh, D.O. conducted the IME, which

included a review of Plaintiff’s medical history and a physical examination, and he

produced a report of his findings. ECF No. 40-9 at 2-7. Dr. McHugh cleared

Plaintiff for full duty work without restrictions as a SEPTA bus operator and

stated:

[I]t is my medical opinion, within a reasonable degree of medical

certainty, that [Plaintiff] is fully recovered from the cervical and

lumbar sprains and strains and that he needs no further care. It is my

medical opinion, within a reasonable degree of medical certainty, that

4 At ECF No. 43-1 ¶ 39, Plaintiff states, “On October 13, 2015, SEPTA’s Labor Relations

Manager, Bud Scott, spoke to Local 234’s Executive Vice-President, Brian Pollitt, who advised

Mr. Scholl that the Union supported transferring Plaintiff to the position of a Trolley Operator, in

spite of the seniority provision, to accommodate Plaintiff’s disability,” without citation.

Defendant’s Exhibit 29 (ECF No. 40-8) shows an e-mail from Mr. Scott to Ms. Hopkins. Mr.

Scott specifically wrote, “Jackie, On 10/13/15, I spoke to Union Vice President Brian Pollitt

regarding accommodating Robert Gardner by transferring him to Elmwood as a trolley operator.

Brian Pollitt advised that he supported transferring Mr. Gardner and circumvent the existing list.

However, Joe Horbury advised that the Union President Willie Brown was opposed to the

transfer.”

[Plaintiff] could return to full duty work without restrictions as a

SEPTA bus driver immediately.

Id. at 6.

On November 19, 2015, SEPTA’s Vocational Consultant, Jocelyn Jervis,

notified Plaintiff that he was permitted to return to work on December 3, 2015,

pending a medical-fitness-for-duty examination pursuant to SEPTA’s Fitness for

Duty policy and Section 501(n) of the CBA. ECF No. 40-9 at 9.

On December 3, 2015, Ms. Hopkins wrote to Plaintiff informing him that

based on Dr. McHugh’s conclusions in his IME report, SEPTA determined that

Plaintiff did not have a disability under the ADA and; therefore, it would not grant

his request for ADA accommodation. ECF No. 40-2 at ¶ 7.

On January 27, 2016, Plaintiff submitted another request for accommodation

and supported his request with the same documents from his September 2, 2015

submission seeking the same accommodation. Id. at 13-23. On February 10, 2016,

SEPTA received another note from Dr. Allen stating that Plaintiff was “[c]leared to

return to normal duties,” dated “2/10/16.” Id. at 25. And, on February 22, 2016,

Ms. Hopkins denied Plaintiff’s second request for accommodation. Id. at 27.

On April 11, 2016, SEPTA transferred Plaintiff to trolley operator based on

seniority. Id. at 29-33. On June 28, 2017, SEPTA promoted Plaintiff to

Supervisor, Control Center – CCT. Id. at 35. On October 17, 2017, SEPTA

promoted to Transportation Manager. Id. at 37. On June 12, 2018, SEPTA

promoted Plaintiff to Control Center Manager – Bus. ECF No. 40-4 at 2. Plaintiff

is employed by SEPTA in the same position, today. ECF No. 40-2 at ¶ 1.

II. STANDARD

Summary judgment is appropriate if the moving party shows there is no

genuine dispute as to any material fact and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). The material facts must be viewed in the

light most favorable to the nonmoving party only if there is a “genuine” dispute as

to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added); Fed. R.

Civ. P. 56(c). A fact is “material” if proof of its existence or non-existence might

affect the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247–248 (1986). A dispute of fact is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the non-moving party.” Id. at 248-49.

The initial burden is on the moving party to show the absence of a genuine

dispute of material fact. See Celotext Corporation v. Catrett, 477 U.S. 317, 323

(1986) (the burden on the moving party is one that involves “identifying the

portions of the pleadings, depositions, answers to interrogatories and admissions

on file, together with affidavits demonstrating the absence of a genuine issue of a

material fact.”). As the Supreme Court has emphasized, “[w]hen the moving party

has carried its burden under Rule 56(c), its opponent must do more than simply

show that there is some metaphysical doubt as to the material facts … Where the

record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no ‘genuine issue for trial.’” Scott, 550 U.S. at 380

(quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574,

586–587 (1986) (footnote omitted)). While the moving party bears the initial

burden, meeting this obligation shifts the burden to the non-moving party who

must “set forth specific facts showing that there is a genuine issue for trial.”

Anderson, 477 U.S. at 250.

“[T]he mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Am. Eagle Outfitters

v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–248 (1986)). “When opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Id.; See Losch v.

Borough of Parkesburg, Pa., 736 F.2d 903, 909 (3d Cir. 1984) (instructing that

“conflicts of credibility should not be resolved on a hearing on the motion for

summary judgment unless the opponent’s evidence is too incredible to be believed

by reasonable minds.”). As such, summary judgment must be entered, “‘after

adequate time for discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.’” Marten v.

Gordon, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986)).

III. DISCUSSION

Plaintiff’s Complaint contains causes of action under the ADA and the

PHRA. See generally ECF No. 1. Plaintiff alleges Defendant is liable for

discrimination and retaliation in violation of the ADA by claiming he was a

qualified individual with a disability, his request for a reasonable accommodation

was summarily denied without any meaningful interactive process, and that the

close temporal proximity of Plaintiff’s request for accommodation and his being

placed on sick leave indicates that SEPTA’s actions were for untrue and pretextual

reasons. Id. SEPTA moves for summary judgment on all claims. ECF No. 40.

A. The Court grants summary judgment for SEPTA on Plaintiff’s

disability discrimination claims under the ADA and the PHRA.

SEPTA argues Plaintiff has failed to raise a genuine issue of fact as to

whether Plaintiff suffered from a disability recognized under the ADA and that

SEPTA discriminated against him because of his disability. Plaintiff argues

genuine issues of material fact exist that preclude summary judgment. The Court

disagrees and finds that Plaintiff did not have a disability under ADA, and, as a

result, grants SEPTA’s motion for summary judgment.

1. Disability discrimination claims are analyzed under a

burden-shifting framework.

The ADA bars an employer from “discriminat[ing] against a qualified

individual on the basis of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a); see also Turner v. Hershey Chocolate USA, 440 F.3d 604, 607 (3d Cir.

2006) (The purpose of the ADA is to “prevent otherwise qualified individuals from

being discriminated against in employment based on disability.”).

In assessing claims of discrimination based on disability, the Third Circuit

applies the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). See, e.g., Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000).

This framework places the initial burden on a plaintiff to establish a prima facie

case of discrimination. Id. If the plaintiff can establish a prima facie case of

discrimination, the burden shifts to the employer to “offer evidence of a legitimate

nondiscriminatory reason for the action.” Anderson v. Wachovia Mortg. Corp., 621

F.3d 261, 271 (3d Cir. 2010) (internal quotation marks omitted) (citing McDonnell

Douglas, 411 U.S. 792). If the defendant meets its burden, “the presumption of

discrimination raised by the prima facie case is rebutted, and plaintiff must show

by a preponderance of the evidence that the defendant’s explanation is actually a

pretext for discrimination.” Mercer v. Se. Pennsylvania Transit Auth., 26 F. Supp.

3d 432, 445 (E.D. Pa. 2014), aff’d sub nom. Mercer v. SEPTA, 608 F. App’x 60

(3d Cir. 2015) (citing Anderson, 621 F.3d at 271).

2. Plaintiff fails to establish a prima facie case for

discrimination.

SEPTA argues summary judgment is appropriate because Plaintiff has not

made out a prima facie case of discrimination based on his disability. First, to

establish a prima facie case, Plaintiff must show: (1) that he is a disabled person

within the meaning of the ADA; (2) that he is otherwise qualified to perform the

essential functions of his job with or without reasonable accommodation; and

(3) that he suffered an adverse employment action because of his disability. Taylor

v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999); see also Sulima v.

Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010).

With respect to the first element, Plaintiff has the “burden of demonstrating

that he has a disability under the ADA before any claim can proceed to trial.”

Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). At summary

judgment, [he] cannot rely on unsupported allegations, but must go beyond

pleadings and provide some evidence that would show a genuine issue exists for

trial. Id.; see also Celotex Corp., 477 U.S. at 324. Plaintiff can establish he has a

disability under ADA5 by showing he has a “‘a physical or mental impairment that

5 Courts previously considered the ADA and the PHRA coextensively, the PHRA was not

amended following the passage of the ADAAA, which explicitly expanded the list of “major life

substantially limits [a] major life activit[y],’ has ‘a record of such an impairment,’

or is ‘regarded as having such an impairment.’” Mills v. Temple Univ., 869 F.

Supp. 2d 609, 620 (E.D. Pa. 2012) (quoting 42 U.S.C. § 12102(2)(A), (B), (C)). In

order to determine whether a physical or mental impairment limits a major life

activity, the court must evaluate the “specific life activities that the plaintiff claims

activities,” and explained that the definition of disability was to be broadly construed, thus

requiring courts to analyze disability under the ADA and PHRA separately. “[W]hile the

ADAAA lowered the standard for finding a disability under the ADA, the PHRA has not been

similarly amended.” Kieffer v. CPR Restoration & Cleaning Serv., LLC, 200 F. Supp. 3d 520,

533 (E.D. Pa. 2016), aff'd sub nom. Kieffer v. CPR Restoration & Cleaning Servs., LLC, 733 F.

App'x 632 (3d Cir. 2018). The majority of courts in the Eastern District of Pennsylvania have

concluded that “because the Pennsylvania legislature has not enacted a similar amendment to the

PHRA, the disability prong of discrimination analysis under the PHRA should be analyzed in the

same manner as pre-ADAAA claims.’” Sowell v. Kelly Servs., Inc., 139 F. Supp. 3d 684, 704

(E.D. Pa. 2015) (quoting Berkowitz v. Oppenheimer Precision Products, Inc., No. 13–4917, 2014

WL 5461515, at 7 (E.D. Pa. Oct. 28, 2014)). “In order to establish actual disability under the

PHRA, a plaintiff must demonstrate that she has ‘actual mental or physical impairment that

substantially limits one or more major life activities.’” Id. (quoting Macfarlan v. Ivy Hill SNF,

LLC, 675 F.3d 266, 274 (3d Cir.2012)). According to pre-ADAA EEOC regulations,

“‘substantially limits’ means ‘[u]nable to perform a major life activity that the average person in

the general population can perform’ or ‘[s]ignificantly restricted as to the condition, manner or

duration under which an individual can perform a particular major life activity as compared to

the condition, manner, or duration under which the average person in the general population can

perform that same major life activity.’” Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778,

782–83 (3d Cir. 1998) (quoting pre-ADAAA EEOC regulations 29 C.F.R. § 1630.2(j)(1)(i),(ii)).

In considering whether a major life activity has been substantially limited, courts were to

consider “(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration

of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or

long term impact of [the impairment] or resulting from the impairment.” Id. at 783 (quoting pre-

ADAAA EEOC regulations 29 C.F.R. § 1630.2(j)(2)(i)–(iii)). Furthermore, under these pre-

ADAA EEOC regulations, major life activities included “sitting, standing, lifting, and reaching.”

Id. at 783 n. 2. (citing pre-ADAAA EEOC regulations 29 C.F.R. Pt. 1630, App. § 1630.2(i)).

Therefore, any reference to ADA includes and is analyzed under ADAAA’s broader

interpretation of “disability.” And, because Plaintiff fails to establish he was disabled at a prima

facie level under ADA (the broader post-amendment interpretation), he fails, a fortiori, under

PHRA (the narrower pre-amendment interpretation).

are affected,” determine whether they are “major life activit[ies]” and whether they

are limited by the plaintiff’s impairment. Id.

With the passage of the ADA Amendments Act of 2008 (“ADAAA”),

Congress expanded the statute’s non-exhaustive list of “major life activities” and

declared that “[t]he definition of disability shall be construed in favor of broad

coverage of individuals under this Act, to the maximum extent permitted by the

terms of this Act.” Id. (quoting Pub.L. No. 110–325, §§ 2(b)(1)-(6), 3(2)(a), § 4(a),

122 Stat. 3553, 3555). “Whether an individual is substantially limited in

performing a major life activity is a question of fact.” Sowell v. Kelly Servs., Inc.,

139 F. Supp. 3d 684, 698 (E.D. Pa. 2015). The ADAAA states that “major life

activities include, but are not limited to, caring for oneself, performing manual

tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating, thinking, communicating,

and working.” 42 U.S.C.A. § 12102.

Plaintiff argues that his disability “limits a major life activity” and that he

established a “record of” his disability. ECF No. 43 at 15. Plaintiff described his

disability as follows:

“I have disabilities as a result of being permanently disabled and/or limited

in range of motion resulting from both the congenital fusion of my thoracic

spine (T1-T2) and the surgical fusion of my cervical (C4-C7) spine that

required implantation of a prosthetic device on November 17, 2014 (sic) and

covered under the ADA, which I have provided you sufficient evidence to

support, in the form of CT scan…”

ECF No. 43-11 at 22. Dr. Allen described Plaintiff’s diagnosis as a “[c]ervical and

lumbosacral spine sprain and strain.” ECF No. 43-10 at 26. Dr. Axelrod and other

treating doctors at WORKNET Occupational Medicine described Plaintiff’s

diagnosis as “Cervical Strain; Lumbar Strain.” ECF No. 40-7 at 2, at 9. However,

the record is absent of any specific reference to a major life activity that Plaintiff’s

disability limits. Instead, the only activity Plaintiff claims is limited is his ability

to work as a bus operator.

SEPTA argues Plaintiff fails to establish a disability because, as of the date

he requested an accommodation, two doctors had previously cleared him to return

to work as a bus operator. ECF No. 40 at 15. Specifically, SEPTA points to the

fact that Plaintiff was cleared to return to full work duties by both his personal

physician, Dr. Allen, as well as the independent orthopedic surgeon, Dr. McHugh,

at the times he requested accommodation. Id. Plaintiff submitted his

accommodation request on September 2, 2015. ECF No. 40-2 ¶ 5. SEPTA asserts

that Dr. Allen’s September 16, 2015 note “clear[ing] [Plaintiff] to return to full

duties at work” after he requested an accommodation “conclusively demonstrate[s]

that [Plaintiff] was not disabled.” ECF No. 40 at 15.

Plaintiff argues Dr. Allen’s September 16, 2015 note does not specifically

say he could return to “full-duty as a bus operator” and, instead, relies on Dr.

Allen’s September 30, 2015 supplement which stated, “‘No frequent repetitive

arm/hand motion’, ‘no frequent gross manipulation’ ‘Restrictions expected to be

permanent’[sic].” ECF No. 43 at 7 (emphasis removed). Based on the two notes

from Dr. Allen, Plaintiff argues that “[i]t can be reasonably implied that Dr.

Allen’s September 16, 2015 note assumed Plaintiff was assigned to full duty as a

rail operator since [Dr. Allen] previously requested that Plaintiff be assigned to rail

operation only.” Id. at 8.

Plaintiff contests that there is a genuine issue of material fact as to whether

he is disabled because Dr. Allen’s two medical reports contain conflicting opinions

insofar that one says he is incapable of operating a bus, while the other says he is

capable of returning to full work duties. Id. at 17. The discrepancy in Dr. Allen’s

two reports, however, is inconsequential and blatantly contradicted by the record.

It is undisputed that the doctors who analyzed Plaintiff’s injuries uniformly

concluded that Plaintiff could return to his full work duties prior to the date

SEPTA denied his accommodation request.

Furthermore, Plaintiff fails to identify in the record “specific life activities”

his disability affects. Consequently, the Court is unable to analyze whether they

are “major life activities” and whether his disability limits those activities.

Plaintiff’s own declaration fails to identify a major life activity his disability

allegedly impairs. See ECF No. 43-3 at 1-6. Plaintiff’s own description to Ms.

Hopkins fails to identify a major life activity his disability allegedly impairs. ECF

No. 43-11 at 22. Accordingly, Plaintiff has failed to go beyond his pleadings and

provide some evidence that would show a genuine issue exists for trial.

Deep within the record lies a brief reference to what the courts might

consider life activities. The doctors’ notes in reference to Plaintiff’s follow-up

visits at WORKNET Occupational Medicine state that Plaintiff

specifically denied any pain, numbness, weakness of the arms,

forearms or hands. He had no difficulties with balance and no

intestinal or urinary complaints such as incontinence or retention and

he had no paresthesias of the anal or genital regions. He was doing

full duty tasks without difficulty and he was attending

physical therapy.

ECF No. 40-7 at 5-7. However, Plaintiff’s reports, outlining his admissions, from

his many examinations give no indication that any of these—what could be

considered—life activities were at all limited.

Plaintiff was in a work-related vehicle accident on June 4, 2015. ECF No.

40-2 ¶ 3. Over the course of five months, doctors monitored Plaintiff’s injuries,

prescribed medication and physical therapy, and the record demonstrates, without

room for dispute, Plaintiff was cleared to return to full work duty – at the latest –

October 21, 2015. At most, lending Plaintiff the broadest interpretation of

disability under the ADA, the record reflects a temporary injury for which Plaintiff

received treatment and recovered. It is well settled, however, that “a temporary,

non-chronic impairment of short duration is not a disability covered by the ADA.”

Sampson v. Methacton Sch. Dist., 88 F. Supp. 3d 422, 435 (E.D. Pa. 2015) (citing

Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002) (citation omitted)).

Thus, an injury like Plaintiff's, involving several months of limitation without long-

term or permanent effect, is not a disability under the ADA. Id. at 436 (citing e.g.,

Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274–75 (3d Cir. 2012) (finding that

temporary lifting limitations that were removed four months after their inception

“are the very definition of such a non-chronic impairment”); see also Bolden v.

Magee Women's Hosp. of Univ. of Pittsburgh Med. Ctr., 281 Fed.Appx. 88, 90 (3d

Cir. 2008) (finding proper district court's determination that no reasonable juror

could have concluded the plaintiff had a disability where, after four months of an

arm injury, the plaintiff was able to resume many activities and was fully able to

resume all activities after seven months).

SEPTA cites Parrotta v. PECO Energy Co., 363 F. Supp. 3d 577 (E.D. Pa.

2019) as persuasive support. The employee in Parrotta underwent surgery on his

foot that temporarily restricted his ability to work. Id. Following treatment,

doctors cleared the employee for “full duty work ... with no restrictions, no []

medications, and no further treatment.” Id. The employee was left to rely only on

his own testimony to establish his disability. Id. Judge Kearney opined, “[i]f we

allow an employee to establish a disability relying solely on his own testimony,

there would be no reasonable limit to a ‘disability’ under the [ADA].” Id.; see also

Rocco v. Gordon Food Service, 998 F. Supp. 2d 422 (W.D. Pa. 2014) (at the time

delivery driver employee was terminated, he was cleared to resume to work ...

without restriction, ... no reasonable jury could conclude that plaintiff meets the

definition of disabled, even ... ADAAA).

As described in Parrotta, Plaintiff offers no record evidence other than his

own testimony to establish his disability. In contrast, the record is replete with

evidence suggesting that he did not suffer a disability. By June 17, 2015, less than

two weeks after Plaintiff’s accident, three different doctors examined Plaintiff and

all three cleared Plaintiff to return to full-duty work. See ECF No. 40-7 at 2-3, 9-

12. Later, Plaintiff complained to one doctor that he had “stiffness and soreness in

his neck whenever he had to reach forward and push a niller [sic] device located on

the dashboard to raise and lower the height of the bus and he also had soreness in

his neck whenever the bus hit a bump in the road.” ECF No. 40-7 at 5. Plaintiff

requested that he be removed from driving a commercial bus and the doctor

complied. Id. Any reference from any doctor in the record who mentioned “rail

operator” either qualified his or her statement with “at Plaintiff’s request” or fully

cleared Plaintiff shortly thereafter. Here, Plaintiff goes a step further, like the

employee in Parotta, he self-diagnoses and he self-prescribes. Nevertheless, by

October 21, 2015, the IME results indisputably confirmed—while taking into

consideration all of Plaintiff’s prior medical history—that Plaintiff recovered and

“could return to full duty work without restrictions as a SEPTA

bus driver immediately.” ECF No. 40-9 at 2-7.

Next, Plaintiff argues he “has presented sufficient medical records relating to

his August 2014 accident, including a November 17, 2014 surgical procedure that

is the basis of his disability” and “[a] reasonable jury following the Court’s

instructions as provided in the Third Circuit Model Civil Jury Instructions can

certainly conclude that Plaintiff is a qualified disabled person under the ADA after

reviewing Dr. Allen’s medical reports, the November 17, 2014 operative reports[],

and testimony from Dr. Allen at trial regarding his diagnosis and requests for

accommodation presented on behalf of Plaintiff.” ECF No. 43 at 15.

This Court disagrees. Plaintiff fails to establish a “record of” impairment.

“Record of impairment” claims protect individuals who suffer discriminatory

actions based upon a documented history of disability, and a plaintiff relying upon

a record of impairment must establish a history of a condition that substantially

limits a major life activity. See Eshelman v. Agere Sys., Inc., 554 F.3d 426, 436-37

(3d Cir. 2009). To establish a record of impairment, Plaintiff begins with his non-

work-related accident and surgery in 2014. Id. at 5.6 Meanwhile, Plaintiff offers

6 In his brief opposing summary judgment, Plaintiff cites to a “non-work related motor vehicle

accident from August 2014, where he was diagnosed with herniated cervical disc, impinging on

his spine, and cervical radiculopathy.” ECF No. 43 at 5. In support, Plaintiff cites to Exhibit P-3,

U.S. Department of Labor Certification of Health Care Provider for Employee’s Serios Health

Condition (Family and Medical Leave Act) dated March 4, 2015 and an Operative Report dated

November 17, 2014 of his “anterior cervical discectomy and fusion.” Plaintiff offers no

no information to indicate SEPTA was aware of Plaintiff’s surgery prior to his

June 4, 2015 accident. Plaintiff was working as a bus operator without complaint

from January 2014 until—at a minimum—March 2015, when he requested

intermittent leave under the Family and Medical Leave Act. See generally ECF

No. 43-10 at 21-24. Even when accepting these facts as proven by the Plaintiff,

the record only supports the June 4, 2015 accident as SEPTA’s first documented

notice of Plaintiff’s purported impairment. The only other possible indication in

the record is Plaintiff’s application for transfer to rail in March 2014. However,

Plaintiff submitted that request in normal due course, not as an ADA

accommodation for a disability. Therefore, Plaintiff has failed to provide support

for his argument that he established a “record of” a disability under the ADA.

Furthermore, even if Plaintiff showed some “record of” an impairment, for

all of the reasons discussed above, he does not present evidence that his record of a

disability limits a major life activity. Again, without as much as identifying a

limitation, Plaintiff cannot establish it is more likely than not he created a “record

of” having a disability that limits a major life activity.

It is not for a jury, or the Court, to meet Plaintiff’s burden for him. At

summary judgment, Plaintiff cannot rely on unsupported allegations; he must go

connection between the two documents. Nowhere located in Exhibit P-3 does the doctor refer to

P-52. Moreover, Plaintiff offers no evidence that P-52 was submitted with P-3, let alone ever

recorded by SEPTA.

beyond pleadings and provide some evidence that would show a genuine issue

exists for trial. Here, the evidence Plaintiff offers to satisfy the law’s lowest

burden falls woefully short. An injury that does not cause a physical or mental

impairment severe enough to limit a major life activity is not a disability under the

ADA. See, e.g., Sampson v. Methacton Sch. Dist., 88 F. Supp. 3d 422, 436 (E.D.

Pa. 2015) (citing Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274–75 (3d

Cir.2012) (finding that temporary lifting limitations that were removed four

months after their inception “are the very definition of such a non-chronic

impairment”); Bolden v. Magee Women's Hosp. of Univ. of Pittsburgh Med.

Ctr., 281 Fed.Appx. 88, 90 (3d Cir.2008) (finding proper district court's

determination that no reasonable juror could have concluded the plaintiff had a

disability where, after four months of an arm injury, the plaintiff was able to

resume many activities and was fully able to resume all activities after seven

months); Ragusa v. Malverne Union Free School Dist., 381 Fed.Appx. 85, 88 (2d

Cir.2010) (affirming entry of summary judgment in favor of defendant employer

because plaintiff teacher failed to raise a jury question that employer regarded her

as disabled as opposed to ineffective). Therefore, because Plaintiff fails to

demonstrate he has a disability under the ADA the balance of Plaintiff’s claims

cannot proceed to trial as a matter of law.

i. Even if Plaintiff were able to establish a disability,

Plaintiff fails to show he is a “qualified individual”

under the ADA.

Even if this Court agreed with Plaintiff and determined that there was an

issue of material fact as to whether he was a disabled person within the meaning of

the ADA, he cannot establish that he was qualified to perform the essential

functions of his job.

A “qualified individual” under the ADA is defined as one who “with or

without reasonable accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42 U.S.C. § 1211(8).

The burden is on a plaintiff to show that he is a “qualified individual.” Buskirk v.

Apollo Metals, 307 F.3d 160, 168 (3d Cir. 2002). In order to determine whether

someone is a qualified, the Third Circuit uses a two-part test. Gaul v. Lucent Tech.,

134 F.3d 576, 580 (3d Cir. 1998). First, a court must consider whether “the

individual satisfies the prerequisites for the position, such as possessing the

appropriate educational background, employment experience, skills, licenses, etc.”

Id. And, second, the court must consider “whether or not the individual can

perform the essential functions of the position held or desired, with or without

reasonable accommodation.” Id. “The determination of whether an individual with

a disability is qualified is made at the time of the adverse employment

decision.” Id.; see also Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560,

563 (7th Cir. 1996).

Plaintiff was not a “qualified individual” for the job he requested as an

accommodation (i.e., rail operator) because he did not have the requisite seniority

within his division to transfer. SEPTA argues it could not accommodate Plaintiff’s

request without violating the CBA, and, effectively, the rights of its other

employees. This Court agrees. Specifically, it is undisputed that at the time

Plaintiff submitted his request, he was number 35 out of 37 on the seniority list for

bus-to-rail transfers. Thus, he was not eligible to receive a position as a rail

operator. As a member of Local 234, Plaintiff was bound by the CBA between

Local 234 and SEPTA. Pursuant to the CBA, the only other way in which Plaintiff

could obtain a rail operator position, and subvert the seniority list, is if Local 234’s

President issued Plaintiff a waiver of the seniority requirement.

However, Plaintiff has not—and cannot—identify any record evidence that

indicates the Local 234 President was willing to waive Plaintiff’s lack of seniority

to accommodate his transfer request. In fact, despite Plaintiff’s contention to the

contrary, Local 234 President Willie Brown was opposed to the transfer.

According to the Third Circuit, “it is appropriate for the union, rather than the

employer, to make the determination that the infringement is justifiable by

releasing the employer from its obligation to follow the seniority provisions of the

collective bargaining agreement to accommodate a qualified individual with a

disability.” Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997). Therefore, without

the President Brown’s approval, SEPTA could not grant Plaintiff’s request.7 In

turn, Plaintiff fails to show he was qualified for the position of rail operator,

whether by seniority in his division or by waiver of the seniority requirement.

ii. Plaintiff did not suffer an adverse employment

action because of his disability.

Even if Plaintiff could establish he was a qualified individual with a

disability, he fails to demonstrate he suffered an adverse employment action

because of his disability. Plaintiff alleges that (1) SEPTA’s denial of his

accommodation request to be transferred to rail operator; and (2) SEPTA assigning

him to sick leave both constitute adverse employment actions. Specifically, in his

sur-reply, Plaintiff states “the adverse action occurred at the latest as of October 1,

2015, when SEPTA failed to accommodate Plaintiff’s disability under the ADA

but subjected him to involuntary sick leave without pay ... Plaintiff also presented

his second request for accommodation on January 27, 2016 ... But was summarily

denied the second request, despite the uncontroverted medical records he presented

with his second application.” ECF No. 45 at 6. Both arguments lack support

7 See Footnote 4. In addition, Plaintiff cites to “McKenzie’s testimony at Exhibit E, p21, L.6-

p.22, L.4,” which is missing from the copy he provided. Plaintiff also cites “Bud Scott’s

testimony at Exhibit G, p.21, L.18-p.23, L.16” and no where in Mr. Scott’s deposition does he

state “the Union had no objection to waiving its seniority requirement for transferring a bus

operator to a trolley operator position for the purpose of accommodating Plaintiff’s disabilities

under the ADA.” See ECF No. 45 at 7.

in the record.

First, SEPTA argues it placed Plaintiff on sick leave because Plaintiff

represented that it was unsafe for him to drive a bus, not because of his disability.

According to SEPTA’s Fitness for Duty policy, Mr. Ropars was required to place

Plaintiff on sick leave following Plaintiff’s disclosure. ECF No. 40-8 at 4-6. In

addition, Plaintiff was required to go on sick leave pursuant to the terms of the

CBA. ECF No. 40-6 at 24-27. Meanwhile, Plaintiff received all sick benefits to

which he was entitled under the CBA in connection with this absence from work,

which SEPTA supports with Plaintiff’s relevant earnings history. ECF No. 40-8

at 10-22. This evidence demonstrates that SEPTA had a legitimate,

nondiscriminatory reason for placing Plaintiff on sick leave, and Plaintiff has not

offered any evidence to suggest that SEPTA’s reason was pretextual. As such,

Plaintiff has failed to adduce evidence from which a reasonable factfinder could

conclude discrimination was “more likely than not” the reason for placing him on

involuntary sick leave.

Next, Plaintiff argues he suffered an adverse employment action when

SEPTA failed to accommodate his disability. ECF No. 43 at 24. Adverse

employment decisions barred by the ADA include the failure to make reasonable

accommodations for a plaintiff’s disabilities. Mercer, 26 F.Supp.3d at 445 (quoting

Taylor, 184 F.3d at 306). The ADA defines discrimination against a qualified

individual on the basis of disability to include “not making reasonable

accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or employee, unless [the

employer] can demonstrate that the accommodation would impose an undue

hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A). “An

employer’s denial of a request for a reasonable accommodation is a discrete act of

discrimination that is an independently actionable unlawful employment practice

under the ADA . . . akin to wrongful termination or failure to hire.” Mercer, 26

F.Supp.3d at 445 (citing 42 U.S.C. § 12112(b)(5)(A)). Here, Plaintiff did not

file a separate cause of action for failure-to-accommodate, but the Court

will address it as such.

To establish an ADA failure-to-accommodate claim a plaintiff must show:

(1) he was disabled and his employer knew it; (2) he requested an accommodation

or assistance; (3) his employer did not make a good faith effort to assist; and (4) he

could have been reasonably accommodated. Capps v. Mondelez Global, LLC, 847

F.3d 144, 157 (3d Cir. 2017) (quoting Armstrong v. Burdette Tomlin Mem’l Hosp.,

438 F.3d 240, 246 (3d Cir. 2006)). Here, the record demonstrates Plaintiff was not

disabled when he requested an accommodation. Although SEPTA made a good-

faith effort to assist, for the reasons discussed above, Plaintiff could not be

reasonably accommodated to the position he desired, which was the only

accommodation he would accept.

It is well-settled across the Circuit Courts that a measure that would violate a

seniority system established in a collective bargaining agreement is not a

“reasonable accommodation,” and thus is not required by the ADA. See Kralik v.

Durbin, 130 F.3d 76, 79 (3d Cir. 1997); see also Eckles v. Consolidated Rail

Corp., 94 F.3d 1041, 1052 (7th Cir.1996), cert. denied, 520 U.S. 1146, 117 S.Ct.

1318, 137 L.Ed.2d 480 (1997); Benson v. Northwest Airlines, Inc., 62 F.3d 1108,

1114 (8th Cir. 1995) (“The ADA does not require that Northwest take action

inconsistent with the contractual rights of other workers under a collective

bargaining agreement.”); Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir.

1995) (“An employer is not required to make accommodations that would violate

the rights of other employees. Farmland Foods had no obligation to terminate other

employees or violate a collective bargaining agreement in order to accommodate

Wooten, even if it perceived him to have a substantial impairment.”) (citation

omitted); Milton v. Scrivner, Inc., 53 F.3d 1118, 1124–25 (10th Cir. 1995) (“An

employer is not required by the ADA to reallocate job duties in order to change the

essential function of a job. An accommodation that would result in other

employees having to work [] harder or longer hours is not required.”) (citations

omitted); Shea v. Tisch, 870 F.2d 786, 790 (1st Cir. 1989) (“Consequently,

we ... conclude that the postal service was not required to accommodate plaintiff

further by placing him in a different position since to do so would violate the rights

of other employees under the collective bargaining agreement.”); Carter v. Tisch,

822 F.2d 465, 467 (4th Cir.1987) (“Reassigning Carter to permanent light duty,

when he was not entitled to one of a limited number of light duty positions, might

have interfered with the rights of other employees under the collective bargaining

agreement.”). SEPTA correctly argues that the ADA does not require collectively-

bargained seniority rights to be compromised in order to reasonably accommodate

an employee who is disabled. Accordingly, Plaintiff cannot dispute that SEPTA’s

refusal to accommodate his request constitutes an adverse employment action.

Again, Plaintiff argues that “the adverse action occurred at the latest as of

October 1, 2015, when SEPTA failed to accommodate Plaintiff’s disability under

the ADA but subjected him to involuntary sick leave without pay.” ECF No. 45 at

6. However, the timeline shows SEPTA had not yet decided Plaintiff’s first

accommodation request, despite Plaintiff’s argument to the contrary. SEPTA did

not officially deny Plaintiff’s accommodation request until December 3, 2015.

ECF No. 40-9 at 11. In addition, Plaintiff argues that his “second request for

accommodation on January 27, 2016 ... [being] summarily denied [on February 22,

2016] ... despite the uncontroverted medical records he presented this his second

application” constitutes an adverse employment action. ECF No. 43 at 24. In

support, Plaintiff refers to SEPTA’s ADA Reasonable Accommodation Policy and

Reasonable Accommodation Procedure Manual. ECF No. 43-10 at 1-20.

Plaintiff’s accommodation request was not reasonable as a matter of law.

SEPTA was under no duty to accommodate Plaintiff’s specific request to be

transferred to rail operator. Plaintiff applied for transfer from bus to rail in March

2014. ECF No. 40-4 at 24. At all times relevant, Plaintiff was subject to the CBA

and such transfers were governed by a specific section of the CBA. Plaintiff cites

to SEPTA’s ADA Accommodation Policy yet conveniently avoids Section E

“Undue Hardship,” which states, “[w]here a request for accommodation is

unreasonable and/or would create an Undue Hardship, SEPTA is not obligated to

grant the request ... examples ... “Breach terms and conditions (including seniority

rights) of a governing collective bargaining agreement.” Id. at 5. The Third Circuit

maintains, “the plaintiff bears only the burden of identifying an accommodation,

the cost of which, facially, do not clearly exceed its benefits.” Walton v. Mental

health Ass’n of Southeastern Pa., 168 F.3d 661, 670 (3d Cir. 1999). Even if

Plaintiff suffered from a disability under the ADA, the only accommodation

Plaintiff would accept SEPTA could only grant at the cost of violating the

collectively earned rights of Plaintiff’s fellow employees.

SEPTA denied both of Plaintiff’s accommodation requests after it received

Dr. McHugh’s IME report, which resolved any ambiguity between doctor reports

to date. ECF No. 40-9 at 11. Meanwhile, SEPTA accommodated Plaintiff

following his June 4, 2015 accident when it assigned him to temporary light-

duty—a recognized accommodation under ADA. Nevertheless, Plaintiff pivots

quickly to argue his January 27, 2016 request for the same accommodation,

without any additional information of substance, was also improperly denied.

ECF No. 43-1 ¶ 92.

The Court concludes that SEPTA’s reliance on the IME report for Plaintiff’s

workers’ compensation claim was appropriate to resolve any alleged conflict in

reports, and Plaintiff’s argument stating otherwise lacks support in evidence and

law. With Plaintiff’s second request, he attached a new note from Dr. Allen that

stated, “Mr. Gardner is cleared to return to work operating trollies only. Not as a

bus driver. Thanks.” ECF No. 40-9 at 23. And, history repeats itself when SEPTA

received a note from Dr. Allen dated February 10, 2016, stating that Plaintiff was

“[c]leared to return to normal duties.” Id. at 25. Therefore, when Ms. Hopkins

denied Plaintiff’s second request on February 22, 2016, she did so again with the

IME report and Plaintiff’s personal physician’s assessment available to her.

Id. at 27.

In a final, last ditch effort, Plaintiff attempts to exploit SEPTA granting his

June 2019 request for a standing work station and suggest that SEPTA’s

accommodation is somehow evidence that his 2015 request for transfer to rail

operator should have been granted. ECF No. 45 at 8. Plaintiff argues, “[t]his is

evidence from which a reasonable jury could find that SEPTA’s 2015 decision that

Plaintiff did not have an ADA qualified disability lacks credibility.” Id. The Court

flatly disagrees.

Ultimately, SEPTA granted Plaintiff’s transfer on April 11, 2016, because

Plaintiff achieved the requisite seniority, not because of an ADA accommodation.

Moreover, Plaintiff continued to achieve promotions from SEPTA, and is currently

Control Center Manager – Bus. ECF No. 40-4 at 2. Based on the record before the

Court, no reasonable juror could conclude that Plaintiff suffered an adverse

employment action because of his disability when the undisputed facts suggest

quite the opposite.

a. SEPTA engaged Plaintiff in its

interactive process.

Plaintiff argues SEPTA failed to engage Plaintiff in “any interactive

process” in relation to his January 2016 accommodation request. ECF No. 43-1 ¶

90. Because Plaintiff has failed to show he falls within the scope of an ADA

disability, the level of engagement under SEPTA’s “interactive-process” is not

relevant and the adequacy of SEPTA’s process need not be examined.

Nevertheless, a brief survey of the record leaves no doubt SEPTA satisfied its duty.

An employer who “acts in bad faith [during] the interactive process will be

liable if the jury reasonably concludes that the employee would have been able to

perform the job with accommodations.” Taylor, 184 F.3d at 317.

“To show that an employer failed to participate in the interactive process, a

disabled employee must demonstrate: (1) the employer knew about the employee’s

disability; (2) the employee requested accommodations or assistance for his or her

disability; (3) the employer did not make a good faith effort to assist the employee

in seeking accommodations; and (4) the employee could have been reasonably

accommodated but for the employer’s lack of good faith.” Taylor, 184 F.3d at

319–20. The Third Circuit has held that “both parties have a duty to assist in the

search for appropriate reasonable accommodation and to act in good faith” and

must engage in an “interactive process.” Taylor, 184 F.3d at 312 (quoting Mengine

v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997)). The record aptly supports SEPTA’s

contention that the actions taken by Plaintiff throughout this process are nothing

more than an orchestrated attempt to circumvent the CBA.

Plaintiff would only accept a transfer to rail operator as an accommodation,

which is an accommodation that SEPTA legally could not grant. Ms. Hopkins

discussed Plaintiff’s request with him over the telephone and explained the

difference between identifying a reasonable accommodation for him and the

transfer process under the CBA. ECF No. 40-7 at 65-66. Plaintiff memorialized

that conversation in a follow-up e-mail to Ms. Hopkins. Id.

The interactive process requires participation from both parties. “Each party

holds information the other does not have or cannot easily obtain.” Taylor, 184

F.3d at 316. For example, when presented with Dr. Allen’s September 17 and

September 30, 2015 notes, the former clearing Plaintiff to work and the latter

adding restrictions, Ms. Hopkins asked Plaintiff to clarify his personal physicians

notes that appeared to be at odds. Id. at 75. Plaintiff responded with reports he had

submitted with his September 2, 2015 request. ECF No. 40-7 at 79-80; 82-83. As

such, Plaintiff’s effort was of no remedial consequence.

Plaintiff cites to SEPTA’s Reasonable Accommodation Procedure Manual to

argue some form of noncompliance. ECF No. 43-1 ¶ 79. The manual outlines

SEPTA’s process, which includes meeting with the employee. ECF No. 43-10 at

11. On October 7, 2015, Plaintiff attended an interactive process meeting with Ms.

Hopkins, Ms. McKenzie, and Dr. Erinoff. ECF No. 40-2 ¶ 6. The record

demonstrates that SEPTA considered Plaintiff’s request, sought assistance or input

from other resources, and attempted to discuss alternatives.

Ms. Hopkins took it upon herself to investigate how much longer Plaintiff

“could expect to remain on those transfer lists for the trolley position.” Id. at 34.

Ms. Hopkins engaged Local 234 to inquire if it was willing to waive the seniority

system so SEPTA could accommodate Plaintiff’s request. Id. And, on October 28,

2015, Ms. Hopkins wrote to Plaintiff and summarized the history of the interactive

process to date. Id. at 36-50. Despite SEPTA not knowing whether Plaintiff

suffered from a disability recognized under the ADA, and meanwhile investigating

whether it could not reasonably accommodate Plaintiff’s firm request, no

reasonable juror could conclude SEPTA failed to engage Plaintiff with a good-faith

effort to assist in seeking his accommodation. Any argument to the contrary is

fatally undermined by the record.

For all of these reasons, Plaintiff failed to establish a prima facie case for

disability discrimination and, accordingly, the Court grants SEPTA’s motion for

summary judgment on Plaintiff’s discrimination claims as a matter of law. As one

District Judge put it, “[t]he ADA is not designed to allow individuals to advance to

professional positions through a back door. Rather, it is aimed at rebuilding the

threshold of a profession’s front door so that capable people with unrelated

disabilities are not barred by that threshold alone from entering the front door.”

Bartlett v. New York State Bd. of Law Examiners, 226 F.3d 69, 87 (2d Cir. 2000)

(citing Price v. National Bd. Of Medical Examiners, 966 F. Supp. 419, 421-22

(S.D.W.Va. 1997)). The sequence of events in this case strengthens that District

Judge’s prior opinion.

B. Plaintiff fails to establish a prima facie case for retaliation.8

Plaintiff argues that SEPTA retaliated against him for filing an

administrative charge and requesting accommodations for his disability. ECF No.

8 Because the anti-retaliation provisions of the ADA and PHRA are substantially similar, the

analytical framework is identical. 42 U.S.C. § 12203(a); 43 Pa. Stat. Ann. § 955(d); Fogelman v.

Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002).

43-1 at ¶ 99. The retaliatory action, from Plaintiff’s perspective, occurred when

SEPTA placed him on involuntary sick leave. ECF No. 43 at 23. Again, courts

within the Third Circuit apply a burden-shifting framework to retaliation claims.

Shaner v. Synthes (USA), 204 F.3d 494, 500-01 (3d Cir. 2000). “[T]o establish a

prima facie case of retaliation under the ADA, 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) (Fogelman

v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002). “If an employee

establishes a prima facie case of retaliation under the ADA, the burden shifts to the

employer to advance a legitimate, non-retaliatory reason for its adverse

employment action. Id. “If the employer satisfies its burden, the plaintiff must be

able to convince the factfinder both that the employer’s proffered explanation was

false, and that retaliation was the real reason for the adverse

employment action.” Id.

For purposes of an ADA retaliation claim, the absence of a disability does

not translate into an absence of protection under the ADA. Shellenberger v.

Summit Bancorp, Inc., 318 F.3d 183, 190–91 (3d Cir. 2003). The right to request

an accommodation in good faith is no less a guarantee under the ADA than the

right to file a complaint with the EEOC, and the ADA protects one who engages in

the latter activity without regard to whether the complainant is “disabled.” Id.

For all of the reasons discussed above, Plaintiff failed to advance evidence

that shows a genuine issue of material fact exists as to whether he suffered an

adverse employment action. Therefore, his retaliation claim fails, and no further

analysis is necessary. For sake of argument, however, Plaintiff has not offered or

countered the record with evidence that could show a causal connection between

his protected activity and what he claims to be SEPTA’s adverse actions.

In order to demonstrate a causal connection, a plaintiff may show (1) an

unusually suggestive temporal proximity between the protected activity and the

allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing.

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 271, 280 (3d Cir. 2007). First,

SEPTA placed Plaintiff on sick leave before Plaintiff filed his administrative

complaint. SEPTA placed Plaintiff on sick leave on September 30, 2015, and

Plaintiff filed on October 1, 2015. Therefore, Plaintiff cannot argue that the record

points to anything unusually suggestive with regard to timing. Thus, Plaintiff fails

to prove the second element for a retaliation claim, quickly.

Next, SEPTA argues Plaintiff’s retaliation claim is a “repackaging” of his

failure-to-accommodate claim and, as such, fails as a matter of law. ECF No. 44 at

18. The Court agrees. However, and although the Court analyzed it as such,

Plaintiff did not present a separate failure-to-accommodate claim. Instead,

Plaintiff argued SEPTA’s failure-to-accommodate as an adverse employment

action under the elements of his discrimination claim, which it was not.

SEPTA cites Williams v. Philadelphia Hous. Auth., 230 F. Supp. 2d 631,

639 (E.D. Pa. 2002), as persuasive support. In Williams, the District Court granted

summary judgment to the employer where plaintiff predicated an ADA retaliation

claim on the employer's denial of a request for accommodation. Garner v. Sch.

Dist. of Philadelphia, 63 F. Supp. 3d 483, 500 (E.D. Pa. 2014) (citing Williams v.

Philadelphia Hous. Auth., 230 F. Supp. 2d 631, 639 (E.D. Pa. 2002), aff'd in part,

rev'd in part sub nom. Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d

751 (3d Cir. 2004)). In granting summary judgment on the plaintiff's retaliation

claim, the Court stated that the “[p]laintiff's claim, to the extent it is based upon the

defendant's denial of his request for a reasonable accommodation, is stated as a

retaliation claim in form, is, in substance, a claim of failure to accommodate.” Id.

Here, it appears Plaintiff’s retaliation claim is based, at least in part, upon

SEPTA’s refusal to accommodate his specific accommodation, and it cannot be

presented as a separate claim. It appears Plaintiff blends his seeking

accommodation with his being placed on involuntary sick leave. Regardless, for

the same reasons Plaintiff fails to establish a failure-to-accommodate claim, he also

fails to establish a claim for retaliation.

No reasonable juror could conclude that the legitimate non-discriminatory

reason SEPTA offers – Plaintiff was placed on sick leave because he submitted an

accident/incident report to Mr. Ropars that stated he could not safely drive a bus –

was for pretextual reasons. As explained, SEPTA presented evidence that it could

not forego placing Plaintiff on sick leave without violating the CBA or its own

internal policy. As outlined above, Plaintiff offers nothing to show SEPTA’s

stated reason for placing Plaintiff on involuntary sick leave was false.

SEPTA’s ability to exercise its own judgment when enforcing its contractual

obligations under the CBA, as well as its own policies, especially when one

considers it transports the public, must be given deference. Without more, the

record supports a finding in favor of SEPTA on Plaintiff’s retaliation claim.

IV. CONCLUSION

The Courts finds that Plaintiff has not made out a prima facie case of

discrimination under the ADA. Plaintiff’s request for transfer to a rail position was

not a reasonable accommodation under the ADA because it would require SEPTA

to violate the explicit terms of the CBA. The Court also finds that SEPTA more

than adequately engaged in the ADA mandated good faith interactive process with

Plaintiff concerning his disability. Therefore, no reasonable jury, viewing the

complete record in a light most favorable to Plaintiff, could find that SEPTA

violated his rights under the ADA. The Court grants summary judgment in favor

of SEPTA as to the claim of discrimination under the ADA and the PHRA.

The Court finds that the evidence of record does not support Plaintiff's

retaliation claim against SEPTA. The undisputed timeline rejects Plaintiff's

assertion that SEPTA retaliated against him for filing his charge or for requesting

his accommodations when it placed him on involuntary sick leave and, further,

Plaintiff cannot repackage his failure to accommodate claim into a separate claim

for retaliation. Therefore, the Court grants summary judgment in favor of SEPTA

as to the retaliation claims.

Accordingly, the Court grants summary judgment in favor of SEPTA as to

all of Plaintiff's causes of action.

BY THE COURT:

10-1 gory C A)

——__ CHAD ¥. KENNEY; JUDGE

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