ALBRIGHT v. THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEITH ALBRIGHT

Plaintiff.

CIVIL ACTION

v. NO. 19-00149

THE TRUSTEES OF THE UNIVERSITY

OF PENNSYLVANIA et al.,

Defendants.

PAPPERT, J. October 18, 2019

MEMORANDUM

Keith Albright was fired from his job as a clinical audiologist after showing up

late to work sixty times in a span of two years. He claims that his clinical depression

and anxiety disorders caused him to oversleep. Albright filed this lawsuit against his

supervisor, Sherrie Davis, and his employer, the Trustees of the University of

Pennsylvania (“University”), arguing that Defendants discriminated and retaliated

against him under the Americans with Disabilities Act (“ADA”), Pennsylvania Human

Relations Act (“PHRA”) and Philadelphia Fair Practices Ordinance (“PFPO”); failed to

provide him with reasonable accommodations under the ADA; interfered with his

Family and Medical Leave Act (“FMLA”) benefits; and retaliated against him for taking

FMLA leave. Davis and the University filed a Motion for Summary Judgment which

the Court, after considering all of the briefing, thoroughly reviewing the record and

holding oral argument, grants in full.

I

Albright was a clinical audiologist who was hired by the University in 2013.

(Offer Letter, Ex. B, ECF No. 20-3.) He saw patients in a clinical setting where he

conducted hearing tests and fitted hearing aids. (Compl. ¶16, ECF No. 1.) From 2013

to 2016, Albright worked five days a week from 8:00 AM–4:30 PM, splitting his time

between the audiology department’s University City (Philadelphia) and Radnor,

Pennsylvania locations. (Albright Dep. 31:8–17; ECF No. 20-3.) By all accounts,

Albright was a skilled audiologist and he received accolades for his performance,

particularly as it related to patient-care satisfaction. See (Emp. Recognition Email, Ex.

B, ECF No. 23-2; Performance Evaluation, Ex. K, ECF No. 20-1).

In 2016, Albright started showing up late to work without informing Davis in

advance. See (Albright Dep. 75:7–10; Attendance Log, Ex. G, ECF No. 20-3.) According

to Davis, the department-wide policy required employees to text her by 7:00 AM

anytime they were running late or had a last-minute unscheduled absence. (Davis Dep.

48:5–21, ECF No. 20-3.) In 2016 alone, Albright accumulated twenty-three unexcused

late arrivals. (Attendance Log, Ex. G, at 187–88.1) Albright would often text Davis to

explain his tardiness. For example, on September 23, 2016, he texted Davis at 8:08

AM: “I’m on way but going to be past the 10 minutes [grace period], had [yoga] class

this morning.” (Albright-Davis Text Messages, Ex. F, at 157, ECF No. 20-3.) On

September 29, 2016, Albright was late again, this time texting Davis at 8:04 AM: “I

forgot my phone so had to turn back to get it. See you 815.” (Id.) Additional texts offer

1 The citations to exhibits reflect ECF pagination rather than the individual exhibits’ internal

pagination.

a slew of reasons to explain Albright’s tardiness, including facing traffic delays, waiting

for stalled buses, having to pull his car over because he felt ill, getting lost in the

hospital’s surgery center, and grabbing coffee before coming up to the clinic. See (id. at

157–66).

Davis met with Albright in the fall of 2016—without the intervention of human

resources (“HR”) personnel—to discuss his tardiness and consider solutions to the

problem. (Davis Dep. 42:7–43:6.) Albright asked to modify his start time to 8:30 AM

and to work exclusively at the University City location. (Id.) Davis granted these

requests and implemented them in January of 2017. (Id. 50:8–52:5.) Davis also

suggested that Albright take advantage of the University’s Employee Assistance Plan

(“EAP”), which he did. (Albright Dep. 79:14–23.) Albright was granted eight EAP

counseling sessions with Diane Hunt, a licensed professional counselor, which began on

September 20, 2016. (EAP Intake Form, Ex. D, ECF No. 23-2.) Hunt’s notes from the

sessions indicate that Albright was “feeling physical manifestation[s] of stress” and

experiencing sleep deprivation. (Id.) Albright met with Hunt again on October 25,

2016, September 7, 2017, and September 21, 2017. (Id.)

In 2017, even with the adjusted schedule in place, Albright continued to arrive

late. (Attendance Log, Ex G., at 189–90.) On January 3, 2017, he texted Davis at 9:02

AM: “I am running late, am 5 min away. I got up super early to be there before my new

shift—dressed and ate breakfast, then sat down on my couch watching the news which

I never do and must have dozed off.” (Id. at 168.) Then on January 11, 2017, Albright

texted Davis that he was running late because of a delayed train, and on January 26,

February 2, and February 24, Albright blamed traffic jams for his tardiness. (Id. at

169–70; 175.) According to Albright, he told Davis that the modified schedule was not

working but admits that he never specifically asked for a different start time or other

changes. (Albright Dep. 148:11–18.)

On January 18, 2017, Albright visited a nurse practitioner (“NP”). (Patient

Progress Note, Jan. 18, 2017, Ex. E, ECF No. 23-2.) The NP’s medical notes indicate

that Albright felt depressed and had difficulties falling asleep and waking up. (Id.)

Albright also scored a PHQ-9 on a depression screening scale, which the NP interpreted

as mild depression. (Id.) According to Albright, he never expressly told Davis that he

suffered from depression; instead, he testified that in early 2017 he told her about

feeling stressed and having suicidal thoughts. (Albright Dep. 111:16–24.) He called his

condition a “problem,” an “event,” and “being discombobulated.” (Davis Dep. 167:14–17;

170:3–4.) Albright also claims that he experienced anxiety attacks at work, (Albright

Dep. 127:9–12), but Davis stated she was not aware of them. (Davis Dep. 41:7–13.)

Davis testified that she asked Albright multiple times if he had a medical issue

precluding him from getting to work on time, but he always answered “no.” (Davis Dep.

54:7–15.) However, Davis was concerned that something was amiss, because Albright

was shaky at work and had been falling asleep during shifts. (Davis Dep. 119:3–8.)

Albright’s chronic tardiness and failure to abide by the call-out policy prompted

Davis to email the University’s HR department on March 29, 2017 to initiate a formal

performance improvement plan.2 (March 29, 2017 Email, Ex. H, ECF No. 20-3.) The

University’s performance improvement plan proceeds as follows: Coaching, First

2 On that same day, Albright arrived late to work after texting Davis at 9:19 AM: “I am so

sorry but apparently my alarm did not go off.” (Albright-Davis Text Messages, Ex. F, at 178.)

Written Warning, Second Written Warning, Final Written Warning, and Termination.

(Performance Improvement and Progress Steps Policy, Ex. C, P-5, ECF No. 20-3.)

Davis issued a Coaching—the first step in the performance improvement plan—

to Albright on April 6, 2017 for his “excessive lateness.” (Albright Dep. 82:1–17;

Coaching, Ex. C, P-7, ECF No. 20-3.) On July 10, 2017, Davis issued a First Written

Warning because Albright arrived more than three hours late on June 30, 2017 without

abiding by the call-out policy. (Albright Dep. 98:8–99:2; First Written Warning, Ex. C,

P-9, ECF No. 20-3.) After the First Written Warning, Davis suggested that Albright

consider applying for FMLA leave. (Davis Dep. 134:7–11.)

The Second Written Warning was issued on Aug. 10, 2017 because Albright

arrived to work approximately two hours late without notifying Davis in advance.

(Albright Dep. 107:19–108:10; Second Written Warning, Ex. C, P-11, ECF No. 20-3.)

Albright received his Final Written Warning on September 7, 2017 for late arrivals on

August 18, 2017 and September 1, 2017. (Albright Dep. 115:18–116:19; Final Written

Warning, Ex. C, P-14, ECF No. 20-3.) By the time Albright received his Final Written

Warning, he had begun paperwork for FMLA leave but had not yet submitted it.

(Albright Dep. 116:20–24.)

Shortly after receiving the Final Written Warning, Albright had a follow-up

appointment with his NP, who noted that Albright’s anxiety was “deteriorating,” but he

declined to start anxiety medication that day. (Patient Progress Note, Sept. 15, 2017,

Ex. E, ECF No. 23-2.) Four days later, on September 19, 2017, EAP counselor Hunt

sent the University’s Department of Disability Management a medical certification in

support of the Albright’s FMLA leave. (FMLA Certification of Healthcare Provider, Ex.

C, P-11, ECF No. 20-3.) Hunt wrote that Albright’s medical diagnosis was “F41.1”

(generalized anxiety disorder) and she recommended a psychiatric evaluation and

assessment for medication. (Id.)

The University approved Albright’s intermittent FMLA leave on September 25,

2017, allowing him two, three-hour absences per week. (FMLA Approval Letter, Ex. C,

P-15, ECF No. 20-3.) The approval letter stated that Albright was “expected to follow

the regular call-out procedures for [his] department,” and when calling out, “to make

clear that the time off” was for FMLA. (Id.) Yet Albright recalls that when he met with

an HR employee, he was told he only needed to tell Davis he was using FMLA, “because

[his disability] would not allow [him] to call in” before 7:00 AM. (Albright Dep. 118:18–

25.)

Albright first attempted to use FMLA leave on September 26, 2017. At 8:49 AM,

Davis texted Albright: “Are you on your way? Your patient is waiting.” (Albright-Davis

Text Messages, Ex. G, at 183.) Davis responded: “I’m using [FMLA] this morning.”

(Id.) Once Albright arrived at work at 9:40 AM, Davis told him that he still needed to

comply with the 7:00 AM call-out policy, even when using FMLA leave. Albright

followed up with HR later that day to confirm whether he had to comply with the 7:00

AM call-out procedure; HR told Albright he could still be held accountable for failing to

follow his department’s policy. (Sept. 26, 2017 Email, Ex. C, P-16, ECF No. 20-3.) No

formal employment action was taken for Albright’s late arrival that day; rather, the

University applied his FMLA leave retroactively. Later that day, Davis also sent a

department-wide email reminding employees to text her by 7:00 AM if they would be

late or absent from work. (Sept. 26, 2017 Email, Ex. I, ECF No. 20-3.)

On November 29, 2017, Albright once again arrived late to work—this time, at

11:28 AM—without informing Davis in advance. (Albright Dep. 124:15–125:4;

Attendance Log, Ex. G, at 190.) He did not attempt to invoke FMLA leave that day.

See (Albright Dep. 126:3–8). As a result, the University terminated Albright on

December 6, 2017. (Termination Letter, Ex. C, P-17, ECF No. 20-3.)

II

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A

dispute is genuine if the evidence is such that a reasonable factfinder could return a

verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). Summary judgment is granted where there is insufficient record evidence for a

reasonable factfinder to find for the plaintiff. Id. at 252. “The mere existence of a

scintilla of evidence in support of the plaintiff’s position will be insufficient; there must

be evidence on which the jury could reasonably find for the plaintiff.” Id.

When ruling on a motion for summary judgment, the Court may rely only on

admissible evidence. See, e.g., Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 94

(3d Cir. 1999). A court must view the facts and draw all reasonable inferences in favor

of the nonmoving party. See In re Flat glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.

2004). “An inference based upon a speculation or conjecture does not create a material

factual dispute sufficient to defeat entry of summary judgment.” Robertson v. Allied

Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990).

III

The ADA makes it unlawful for an employer to “discriminate against a qualified

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

advancement, or discharge of employees.” 42 U.S.C. § 12112(a). Albright alleges two

theories of discrimination: disparate treatment and failure to provide reasonable

accommodations.3

A

1

Discrimination claims based on allegations of indirect discrimination are

analyzed under the McDonnell Douglas burden-shifting framework. McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Albright must first establish a prima facie

case of discrimination under the ADA. See Williams v. Phila. Hous. Auth. Police Dep’t,

380 F.3d 761 (3d Cir. 2004) (superseded by statute on different grounds). Once he does

so, the burden shifts to the Defendants “to articulate some legitimate,

nondiscriminatory reason for the [adverse action].” McDonnell Douglas, 411 U.S. at

802. “The employer need not prove that the tendered reason actually motivated its

behavior, as throughout this burden-shifting paradigm the ultimate burden of proving

intentional discrimination always rests with the plaintiff.” Fuentes v. Perskie, 32 F.3d

759, 763 (3d Cir. 1994). If the Defendants meet the “relatively light burden” of

3 The analysis of the ADA disparate treatment claim applies equally to the discrimination

claims under the PHRA and PFPO. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.

1999) (applying ADA analysis to PHRA discrimination claim); Ahem v. Eresearch Tech., Inc., 183 F.

Supp. 3d 663, 668 (E.D. Pa. 2016) (applying ADA analysis to PFPO discrimination claim).

articulating a legitimate, nondiscriminatory reason for the adverse action, the burden

shifts back to the plaintiff to show that the employer’s explanation is mere pretext. Id.

To establish a prima facie case of discrimination under the ADA, Albright must

show that: (1) he is disabled within the meaning of the ADA; (2) he is qualified to

perform the essential functions of the job, with or without reasonable accommodation;

and (3) he suffered from an adverse employment action as a result of the

discrimination. Gaul v. Lucent Tech., Inc., 134 F.3d 576, 580 (3d Cir. 1998). The

parties dispute all three elements of the prima facie claim.

2

To determine whether an individual is disabled under the ADA, the statute

“shall be construed in favor of broad coverage of individuals . . . to the maximum

extent” permitted by law. 42 U.S.C. § 12102(4)(A). A “disability” is defined by the ADA

as “(A) a physical or mental impairment that substantially limits one or more major life

activities of such individual; (B) a record of such impairment; or (C) being regarded as

having such an impairment.” Id. § 12102(1)(A)–(C). Albright’s Complaint only alleges

that his clinical depression and anxiety disorders constitute a physical or mental

impairment that substantially limits a major life activity. (Compl. ¶ 12; Oct. 10, 2019

Hr’g Tr. 49:22–50:5.)

“[I]t is well-established that a particular diagnosis, no matter how severe (or

severe-sounding to the layperson), standing alone, is not sufficient to establish

‘disability.’” Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 513 n.5 (3d Cir. 2001). The

disability must also substantially limit a major life activity. The ADA provides a

nonexhaustive list of major life activities, including “caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking . . . concentrating, thinking,

communicating, and working.” 42 U.S.C. § 12102(2)(A). EEOC regulations provide

that an individual’s impairment constitutes a disability if it “substantially limits the

ability of an individual to perform a major life activity as compared to most people in

the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). The inquiry as to whether an

employee has a disability is made on a case-by-case basis. Albertson’s, Inc. v.

Kirkingburg, 527 U.S. 555, 566 (1999).

Depression is a mental impairment covered by the ADA. See 29 C.F.R.

§ 1630.2(j)(3)(iii). The NP’s medical assessments of Albright seem to indicate some

form of depression and/or anxiety disorder. On January 18, 2017, the NP recorded that

Albright scored a PHQ-9 on a depression screening, which she interpreted as “mild

depression.” (Patient Progress Note, Jan. 18, 2017, Ex. E.) Eight months later during a

follow-up appointment, the NP noted that Albright’s anxiety was deteriorating but he

declined to start medication that day. (Patient Progress Note, Sept. 17, 2017, Ex. E.)

And five days after Albright’s termination, the NP prescribed him medication for

anxiety and depression. (Patient Progress Note, Dec. 11, 2017, Ex. N, ECF No. 20-3.)

Albright further contends that his depression and anxiety disorders

“substantially limit[ed] one or more major life activities.” 24 U.S.C. § 12102(1)(A). The

ADA recognizes sleeping and brain functioning as major life activities. Id.

§ 12102(2)(A)–(B). Albright testified that the depression affected his “day-to-day sleep

patterns” and his ability to hear his alarm clock go off. (Albright Dep. 59:8–60:21.)

Reasonable jurors could find that his disability impacted his sleeping and brain activity

more severely than as compared to an average member of the population. Albright

therefore has established a triable issue of fact as to whether he suffered from a

disability, but his discrimination claim fails because he was not qualified to perform the

essential functions of his job.

3

Under the ADA, a “qualified individual” is one “who, with or without reasonable

accommodation, can perform the essential functions of the employment position.” 42

U.S.C. § 12111(8). “To satisfy this requirement, a plaintiff must first demonstrate that

[he] ‘satisfies the requisite skill, experience, education and other job-related

requirements of the employment position that such individual holds or desires.’”

Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001) (citing Deane v.

Pocono Med. Ctr., 142 F.3d 138, 145 (3d Cir. 1998) (en banc)). “Second, a plaintiff must

establish that [he], ‘with or without reasonable accommodation, can perform the

essential functions of the position held or sought.’” Id. The University does not contend

that Albright lacked the requisite skill, experience and education to work as a clinical

audiologist. See (Defs.’ Mem. Supp. Mot. Summ. J. (“Defs.’ Mem.”), ECF No. 20, at 8–

10). The only issue is whether Albright could perform the essential functions of his

position with or without reasonable accommodation. (Id.)

EEOC regulations indicate that a job’s “essential functions” are those that are

“fundamental,” not “marginal.” 29 C.F.R. § 1630.2(n)(1). The regulations provide a

nonexhaustive list of evidence that courts may consider when determining what

constitutes an essential function of the employee’s job, including: (1) the employer’s

judgment, (2) written job descriptions, (3) the amount of time performing the function,

(4) the consequences of not performing the function, (5) the terms of a collective

bargaining agreement, (6) the work experience of past employees on the job, and (7) the

current work experience of others on the job. Id. § 1630.2(n)(3); see also Skerski, 257

F.3d at 281 (referring to these factors).

The University contends that one essential function of Albright’s position as a

clinical audiologist is patient care, which includes showing up on time for scheduled

appointments with patients. (Defs.’ Mem. 9–10; Oct. 10, 2019 Hr’g Tr. 10:20–24.)

Attendance and punctuality cases are unique, given that “the applicable [EEOC] factors

do not shed much light on whether a regular and predicable schedule is an essential

function of a [job].” Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 34 (1st Cir.

2000). A closer examination of Third Circuit decisions shows that whether predictable

and punctual attendance constitutes an essential function of a position largely depends

on the nature of the job itself.

The Third Circuit Court of Appeals’ most recent published opinion addressing

punctuality and attendance involved a marketing production manager who suffered

from clinical depression. Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 321 (3d Cir.

2003). The supervisor became concerned with plaintiff’s frequent tardiness and agreed

to accommodate the plaintiff by allowing her to begin work at 8:30 AM rather than at

8:00 AM. Id. Plaintiff nonetheless continued to come to work late. Id. MBNA argued

that punctuality was an essential function of the plaintiff’s managerial position in order

to “set an example by coming to work ‘on time.’” Id. at 328. The Third Circuit

disagreed, concluding that punctuality for the sake of setting a good example did not

rise to the level of an essential function. Id. at 329. “Although there clearly may be

some situations where an employee’s starting time cannot be altered because it is an

essential function of the job,” that was not the case in Conneen. Id.

However, other cases in this Circuit involving jobs similar to Albright’s

position—i.e., caring for patients in the healthcare industry—have concluded that

regular and predictable on-site attendance is an essential function of the position. See,

e.g., Miller v. Univ. of Pittsburgh Med. Ctr., 350 F. App’x 727, 729 (3d Cir. 2009)

(unpublished) (“Given the nature of Miller’s job, assisting during surgery performed in

the hospital, we find it evident that attendance is an essential element of this

position.”); Johnson v. Children’s Hosp. of Phila., 1995 WL 338497, at *2 (E.D. Pa. June

5, 1995) (holding plaintiff could not perform essential functions of his position as an

aide in the radiology department when he frequently showed up to work late), aff’d, 79

F.3d 1138 (3d Cir. 1996).

The facts of this case align more closely with those in Miller and Johnson. A

clinical audiologist works in the healthcare industry and has direct patient contact. He

must arrive to work predictably and promptly in order to care for scheduled patients.

Albright admitted that maintaining appointments is a responsibility of a clinical

audiologist:

Q: Would patient care be one of your responsibilities as a Clinical Audiologist?

A: Absolutely.

Q: Would keeping and maintaining appointments with patients be a

responsibility of a Clinical Audiologist?

A: It would be.

(Albright Dep. 46:14–20.) Davis testified that there were “times that we had to send

patients away after they sat for an hour, because [we] had no idea whether he was

coming or not coming.” (Davis Dep. 50:22–60:2.) Moreover, other clinical audiologists

had “their own patients, so people can’t see two patients simultaneously.” (Id. 59:16–

19.)

Courts also consider factors including “the employer’s judgment of the essential

functions and a written description of the position” to determine what is an essential

function. Miller, 350 F. App’x at 729 (citing Deane, 142 F.3d at 146). Albright’s

supervisor identified maintaining appointments and showing up on time as essential

functions of the clinical audiologist position. (Davis Dep. 165:8–11.) And the position

description provides that Albright’s duties included “greet[ing] and attend[ing] to

patients in a professional manner.” (Performance Evaluation, Ex. K, at 207.)

The attendance log makes clear that Albright arrived to work late sixty times

over the course of two years. (Attendance Log, Ex. G.) There is no evidence that a

reasonable accommodation would enable him to fulfill the essential functions of his job.

Albright argues that “simply changing his start time greater than thirty minutes would

have addressed Plaintiff’s inability” to show up on time. (Pl.’s Resp. Opp’n Mot. Summ.

J. (“Pl.’s Resp.”), ECF No. 23, at 14.) The record evidence refutes this. Albright’s

attendance log documents scattered, unpredictable and unscheduled late arrivals

between 8:31 AM and 11:36 AM. See (Attendance Log, Ex. G). And again, Albright

never asked to begin work at any specific time after 8:30 AM. (Albright Dep. 148:11–

18.) Even if he had requested a later start time, there is no reasonable alternative that

would have “addressed” Albright’s inability to get to work on time because his tardiness

was excessive, unpredictable and unforeseeable. Albright is unable to establish his

prima facie case for intentional discrimination under the ADA, PHRA and PFPO

because he fails to establish that he is qualified to perform the essential functions of the

job, with or without a reasonable accommodation. Because Albright fails at the second

prong, the Court need not analyze the third prong of the prima facie case.

4

Even if Albright could establish a prima facie case of discrimination, the

University has offered a legitimate, nondiscriminatory reason for his termination. The

University’s burden is “relatively light” and its explanation for firing Albright must

simply “permit the conclusion that there was a nondiscriminatory reason for the

unfavorable employment decision.” Fuentes, 32 F.3d at 763. Here, as explained in

depositions and documentary evidence—including Albright’s December 6, 2017

termination letter—the University fired him for arriving late to work and for failing to

adhere to the 7:00 AM call-out policy. See (Termination Letter, Ex. C, P-17). This

reason is enough to satisfy the Defendants’ “relatively light” burden and shift the

burden back to Albright to prove that Defendants’ reason was merely pretextual. See

McDonnell Douglas, 411 U.S. at 804.

To demonstrate pretext, Albright must present “some evidence . . . from which a

factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate

evidence; or (2) believe that an invidious discriminatory reason was more likely than

not a motivating or determinative cause of the employer’s action.” Fuentes, 32 F.3d at

764. To satisfy the first prong, Albright cannot simply show that the decision was

wrong or mistaken; rather, he must demonstrate weaknesses, implausibilities,

inconsistencies or contradictions in the employer’s proffered legitimate reasons such

that a reasonable factfinder could rationally find them unworthy of credence and hence

infer that the employer was not actually motivated by the nondiscriminatory reason.

Id. at 765. To satisfy the second prong, Albright must point to evidence with sufficient

probative force for a factfinder to conclude that the discriminatory reason was more

likely than not the reason for the adverse employment action. Id.

There is no record evidence from which a reasonable jury could find that

Defendants’ stated reasons for Albright’s termination—that he was chronically late to

work and failed to inform Davis in advance—were pretext for illegal discrimination.

Albright first points to four years of positive performance evaluations in attempt to

inject inconsistencies into the record. However, the record evidence is consistent and

uncontradicted: Albright arrived to work late without informing his supervisor sixty

times in a two-year period, and this chronic tardiness was the documented reason for

every written warning and ultimately, his termination.

Albright also contends that the 7:00 AM call-out policy was an unwritten,

arbitrary requirement that should suggest pretext. (Pl.’s Resp. 20–21.) Even if the call-

out policy were unwritten for much of his employment, Albright concedes that he was

aware of the policy and that it applied uniformly to all employees in the audiology

department. (Pl.’s Resp. 20; Sept. 26, 2017 Email, Ex. I.) Albright has produced no

evidence that would allow a reasonable factfinder to discredit Defendants’ course of

action or find that a discriminatory animus was more likely than not a motivating

factor for Albright’s firing.

B

An employee bringing an ADA failure to accommodate claim must establish: (1)

the employer knew of the employee’s disability; (2) the employee asked for an

accommodation; (3) the employer failed to make a good-faith effort to accommodate the

employee; and (4) a reasonable accommodation was possible. Capps v. Mondelez Glob.,

LLC, 847 F.3d 144, 157 (3d Cir. 2017) (citing Armstrong v. Burdette Tomlin Mem’l

Hosp., 438 F.3d 240, 246 (3d Cir. 2006)). Albright claims that Defendants failed to

accommodate his disability after his initial start-time modification proved inadequate.

(Pl.’s Resp. 16.)

1

Reasonable accommodations claims require proof that the employer knew of the

employee’s disability. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir.

1999). There is no precise method by which an employee must inform the employer;

rather, “[w]hat matters under the ADA are not formalisms about the manner of the

request, but whether the employee or a representative for the employee provides the

employer with enough information that, under the circumstances, the employer can be

fairly said to know of both the disability and desire for an accommodation.” Id.

Employers are not expected to assume that employees struggling to perform their jobs

are disabled and need accommodations. Id. “[N]either the law nor common sense can

demand clairvoyance of an employer.” Conneen, 334 F.3d at 331.

Albright argues that Davis had knowledge of his disability, evidenced by her

words and actions. (Pl.’s Resp. 15–16.) Davis admits to recognizing a change in

Albright’s behavior, which caused her concern for what might be happening in

Albright’s life. (Davis Dep. 117:2–20.) She encouraged him to seek help from the

Employee Assistance Program. (Id. 97:3–6.) Davis also noticed that Albright developed

an “odd shakiness” and had fallen asleep during shifts, leading her to speculate about

whether he might have a drug or alcohol issue. (Id. 118:21–119: 8.)

Albright never told Davis that he suffered from depression anxiety disorder, but

he testified that he told her about feeling stressed and having suicidal thoughts.

(Albright Dep. 111:16–24.) But in text message exchanges between the two, Albright

blamed his tardiness on, among other things, traffic jams, public transportation delays,

“a [viral] bug,” “an issue of me being sick” and “mental hijacking.” (Albright-Davis Text

Messages, Ex. F, at 162, 179.) According to Davis, she asked Albright multiple times if

he had a medical issue precluding him from getting to work on time, and he always

answered “no.” (Davis Dep. 54:7–15; see Albright Dep. 111:14–17.)

As stated by the Third Circuit in Taylor, “[e]mployers cannot assume employees

are disabled.” 184 F.3d at 313. Here, Albright denied having a medical issue and

provided no documentation of a disorder, and there is no support for his contention that

Davis or the University knew that he suffered from depression or anxiety. But even if

Albright were correct that a trier of fact could impute notice on Davis or the University,

he still fails to establish his prima facie case because no reasonable accommodation was

possible.

2

The second and third elements of a prima facie claim require Albright to

establish that he requested an accommodation and the employer failed to make a good-

faith effort to accommodate. Capps, 847 F.3d at 157 (citing Armstrong, 438 F.3d at

246). The only specific accommodations that Albright requested were the 8:30 AM start

time and removal from the Radnor location. Both requests were granted. And

assuming that Albright’s application for intermittent FMLA leave also constituted a

request for an accommodation, the University approved his FMLA application and

granted him leave on September 26, 2017—the only time he sought to use it. See

Capps, 847 F.3d at 157 (considering, for the sake of argument, that requests for

intermittent FMLA leave could be an ADA request for accommodation).

There is no evidence in the record that Albright requested additional

accommodations, and even if he had, he has not shown that any further

accommodations would be reasonable or would allow him to perform the essential

functions of his job. See Donahue v. Consolidated Rail Corp., 224 F.3d 226, 234 (3d Cir.

2000) (“[T]he plaintiff in a disability discrimination case who claims that the defendant

engaged in discrimination by failing to make a reasonable accommodation cannot

recover without showing that a reasonable accommodation was possible.”)

3

Albright has not identified any reasonable accommodations that would allow him

to perform the essential functions of his job—that is, arriving to work predictably and

punctually in order to see scheduled patients. He claims there are several reasonable

accommodations could have been discovered and implemented, (Pl.’s Resp. 16–17): (1)

Albright could schedule his audiology patients in the clinic after closing hours without

the presence of support staff, or support staff could be hired to work later into the

evening; (2) Albright could begin his shifts two hours later at 10:00 AM or 10:30 AM; or

(3) Albright could have one morning each week reserved for administrative time. See

(Pl.’s Resp. 16 (citing to SOF ¶¶ 5.2–5.8)).

“The ADA does not require an employer to create a new position in order to

accommodate an employee with a disability.” Buskirk v. Apollo Metals, 307 F.3d 160,

169 (3d Cir. 2002). The argument that Albright’s schedule could be shifted to noon

until 8:00 PM has the effect of creating a new position, because this time slot was not

previously available. The two audiologists who were scheduled until 7:00 PM only

worked four days per week, from 7:00 AM to 7:00 PM. (Davis Dep. 84:21–85:23; Oct.

10, 2019 Hr’g Tr. 100:4–12.) Clearly, the twelve-hour shift would not accommodate

Albright because his disability would prevent him from arriving to work by 7:00 AM.

See generally (Attendance Log, Ex. G). Albright is essentially asking the University to

create a non-existent shift schedule for him, which the ADA does not require an

employer to do. Albright’s other suggestion that support staff could be scheduled to

work a later shift in order to accommodate his evening patients would also require the

University to establish a new position, (Davis Dep. 157:6–21), so this argument

similarly fails.

Albright’s second and third proposed accommodations—pushing back his start

time by two hours or reserving one of his mornings for administrative time—would not

enable him to perform the essential functions of job. Albright’s attendance record

indicates that he sometimes arrived to work after 10:30 AM, so a new start time would

not ameliorate the issue of his sporadic and unpredictable tardiness. See (Attendance

Log, Ex. G). And adding administrative time to his morning schedule once per week

would have no effect on the other four days of the week. (Id.)

IV

Albright also alleges that Defendants retaliated against him in violation of the

ADA, PHRA and PFPO.4 To establish a prima facie case of retaliation, Albright must

show: (1) he engaged in a protected activity; (2) he suffered an adverse employment

action; and (3) there was a causal connection between the protected activity and the

adverse employment action. See Abramson v. William Paterson Coll. of N.J., 260 F.3d

265, 286 (3d Cir. 2001). If Albright establishes his prima facie case, the burdens shifts

to the Defendants “‘to advance a legitimate, non-retaliatory reason’ for [their] conduct,

and, if [they] do so, ‘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.’” Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d

Cir. 2006), as amended (Sept. 13, 2006) (citing Krouse v. Am. Sterilizer Co., 126 F.3d

494, 500–01 (3d Cir. 1997)).

Albright has established the first two prongs of the retaliation claim: his

requests for an 8:30 AM start time and removal from the Radnor location constitute

protected activity, and his termination is an adverse employment action. For the third

element of the prima facie case, Albright must show that his engaging in protected

activity caused his termination. Close temporal proximity “between the protected

activity and the termination is [itself] sufficient to establish a causal link.” Woodson v.

Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). When the temporal proximity is not

“unusually suggestive,” the Court must look to the evidence as a whole to determine if

4 The Court applies the same analysis to Albright’s ADA and PHRA retaliation claims. See

Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002). The ADA and PFPO claims also are

analyzed in the same way. See Ahern v. Eresearch Tech., Inc., 183 F. Supp. 3d 663 (E.D. Pa. 2016).

it raises a sufficient inference of causation. LeBoon v. Lancaster Jewish Cmty. Ctr.

Ass’n, 503 F.3d 217, 232 (3d Cir. 2007). The type of evidence a plaintiff may proffer

includes: “intervening antagonism or retaliatory animus, inconsistences in the

employer’s articulated reasons for terminating the employee, or any other evidence in

the record sufficient to support the inference of retaliatory animus.” Id. at 232–33

(citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279–80 (3d Cir. 2000)).

From the outset, Albright fails to show an “unusually suggestive” temporal

proximity between his request for accommodations and his termination. Albright asked

for accommodations in the fall of 2016 and was terminated more than a year later on

December 6, 2017. See Williams, 380 F.3d at 760 (holding two-month gap between

request for accommodations and termination is not unusually suggestive). Thus, for

Albright to establish causation, he must point to other evidence in the record. He

suggests that Davis’s implementation of the performance improvement plan after

months of informal counseling should constitute a pattern of antagonism. (Oct. 10,

2019, Hr’g Tr. 82:9–14.) Yet he points to no case law in support of this argument, and

the Court can find none. Nothing else in the record suggests antagonism or a

retaliatory animus. On the contrary, Albright called his relationship with Davis “fine.

It was like any other audiologist relationship. Everybody is cordial. We had no

problems with one another. There was no animosity.” (Albright Dep. 54:4–10.)

Neither has Albright demonstrated inconsistencies in the Defendants’ reasons for

disciplining and terminating him. At each step in the disciplinary process, Davis cited

Albright’s unannounced and unexcused tardiness as the rationale for issuing written

warnings and terminating him. See (Coaching, Ex C., P-7; First Written Warning, Ex.

C, P-9; Second Written Warning, Ex. C, P-12; Final Written Warning, Ex. C, P-14). No

reasonable factfinder could determine that Albright was fired in December of 2017 in

retaliation for requesting and being granted an accommodation in the fall of 2016.5

V

FMLA claims are commonly brought under a theory of either interference or

retaliation. Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005). An

FMLA interference claim arises under 29 U.S.C. § 2615(a)(1), which makes it “unlawful

for any employer to interfere with, restrain, or deny the exercise of or the attempt to

exercise, any right provided under” the FMLA. An FMLA retaliation claim arises

under 29 U.S.C. § 2615(a)(2), which makes it “unlawful for any employer to discharge or

in any other manner discriminate against any individual for opposing any practice

made unlawful” by the FMLA.

A

For Albright to succeed on his interference claim, he must establish that: (1) he

was an eligible employee under the FMLA; (2) the University was an employer subject

to the FMLA’s requirements; (3) Albright was entitled to FMLA leave; (4) Albright gave

notice to the defendant of his intention to take FMLA leave; and (5) Albright was

denied the benefits to which he was entitled under the FMLA. Ross v. Gihuly, 755 F.3d

185, 191–92 (3d Cir. 2014). “An interference action is not about discrimination, it is

only about whether the employer provided the employee with the entitlements

5 Even if Albright could establish a prima facie case of ADA retaliation, Defendants have

satisfied their burden of articulating a legitimate, nondiscriminatory reason for the adverse

employment action: Albright’s repeated inability to get to work on time and his failure to notify

Davis in advance. Albright cites to nothing in the record that would allow a reasonable jury to

conclude that Defendants’ rationale was pretextual. See supra subsection III.A.4.

guaranteed by the FMLA.” Callison, 430 F.3d at 119–20. Accordingly, FMLA

interference claims do not involve a McDonnell Douglas burden-shifting analysis.

Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006).

The parties only dispute the fifth prong—whether Albright was denied any

benefit to which he was entitled under the FMLA. “In order to assert a claim of

interference, an employee must show that he was entitled to benefits under the FMLA

and that his employer illegitimately prevented him from obtaining those benefits.”

Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007). A plaintiff

must show that “FMLA benefits were actually withheld.” Ross, 755 F.3d at 192.

Albright advances two theories for how his FMLA benefits were withheld: First,

he claims that his termination cut off his FMLA benefits. (Pl.’s Resp. 23.) Second, he

contends that the department’s 7:00 AM call-out procedure was an arbitrary rule that

prevented him from access to his FMLA benefits. (Id.)

With respect to the termination theory, the FMLA “does not provide employees

with a right against termination for a reason other than interference with rights under

the FMLA.” Sarnowski, 510 F.3d at 403. Defendants, therefore, can defeat Albright’s

claim if they can demonstrate that Albright’s termination was for a reason unrelated to

his intention to exercise his FMLA rights. Id. Defendants meet their burden here. On

November 29, 2017, Albright arrived to work at 11:28 AM without attempting to invoke

his FMLA leave either before or after he arrived for work. (Attendance Log, Ex. G, at

190; Albright Dep. 126:3–8; Nov. 29, 2017 Email, Ex. J, at 203, ECF No. 20-3.) The

University fired Albright for his last in a very long line of unexcused tardiness, not for

attempting to invoke FMLA leave. See Ross, 755 F.3d at 192 (“[B]ecause [plaintiff did]

not allege that [defendant] withheld any entitlement guaranteed by FMLA, he fails to

state a claim for interference.”).

Albright’s second argument—that the 7:00 AM call-out policy interfered with his

right to invoke FMLA leave—also fails. “Internal sick leave policies or any collective

bargaining agreements are only invalidated to the extent they diminish the rights

created by the FMLA.” Callison, 430 F.3d at 121; see also Millea v. Metro-North R.R.

Co., 658 F.3d 154, 161 (2d Cir. 2011) (“[A] company may discipline an employee for

violating its internal leave policy as long as that policy is consistent with the law . . . .”).

When FMLA leave is intermittent and unforeseeable, the employee must give

“such notice as is practicable.” 29 U.S.C. § 2612(e)(2)(B). “It generally should be

practicable for the employee to provide notice of leave that is unforeseeable within the

time prescribed by the employer’s usual and customary notice requirements applicable

to such leave.” 29 C.F.R. § 825.303(a). If there are unusual circumstances justifying

the employee’s failure to comply, however, the leave policy may not be consistent with

the FMLA. Id. § 825.303(c). An unusual circumstance may exist where “the medical

condition or illness prevents compliance” with internal company procedures. Int’l Bhd.

of Elec. Workers Local 1600 v. PPL Elec. Utils. Corp., 2017 WL 6547138, at *8 (E.D. Pa.

Dec. 22, 2017). Arguably, the 7:00 AM call-out policy could be inconsistent with

Albright’s rights under the FMLA because his disability allegedly inhibited his ability

to respond to external stimuli in order to wake up on time. This would create the

unusual situation whereby Albright could not physically comply with the department’s

7:00 AM call-out deadline.

Even if the 7:00 AM call-out procedure violated Albright’s FMLA-protected

rights, his claim still fails because the University never withheld FMLA benefits from

Albright. On September 26, 2017, when Albright first attempted to invoke FMLA leave

but failed to comply with the 7:00 AM call-out procedure, the University still granted

him FMLA leave retroactively. Then, when Albright arrived late to work on November

29, 2017, he did not attempt to invoke FMLA that day, either before or after his late

arrival. The 7:00 AM call-out procedure therefore never actually interfered with

Albright’s FMLA leave. In neither of these situations were “FMLA benefits . . . actually

withheld.” Ross, 755 F.3d at 192.

B

Albright’s FMLA retaliation claim requires proof of Defendants’ retaliatory

intent and is therefore analyzed using the McDonnell Douglas burden-shifting

framework. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir.

2012). To establish a prima facie case, Albright must show that (1) he invoked his right

to FMLA leave; (2) he suffered an adverse employment decision; and (3) the adverse

employment decision was causally related to his termination. Id. at 301–02. The

parties only dispute the third element of the prima facie claim. (Defs.’ Mem. 17; Pl.’s

Resp. 19.)

The Third Circuit has articulated two relevant factors for establishing whether a

causal link exists between the invocation of FMLA leave and the adverse employment

decision: (1) a showing that the two events were close in time, or (2) evidence of ongoing

antagonism toward the employee. See Abramson, 260 F.3d at 288. The question of

timing focuses on the “temporal proximity between the protected activity and the

termination.” Williams, 380 F.3d at 760 (internal citations and quotation marks

omitted). “[T]he timing of the alleged retaliatory action must be unusually suggestive

of retaliatory motive before a causal link will be inferred.” Id. (internal citations and

quotation marks omitted).

Albright first used FMLA leave on September 26, 2017 and he was fired on

December 6, 2017—two months and ten days later. The Third Circuit has established

no bright-line rule for a time frame indicative of unusually suggestive temporal

proximity, and the Circuit has been “reluctant to infer a causal connection based on

temporal proximity alone.” Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 258

(3d Cir. 2014). See e.g., Williams, 380 F.3d at 761 (finding two-month gap in ADA

retaliation case not unusually suggestive); LeBoon, 503 F.3d at 233 (finding three-

month gap in Title VII retaliation case not unusually suggestive). But see Lichtenstein,

691 F.3d at 307 (finding seven-day gap in a FMLA retaliation case unusually

suggestive). When temporal proximity is not enough to be unusually suggestive on its

own, the Court considers whether the “proffered evidence, looked at as a whole” raises

the inference of causation. LeBoon, 503 F.3d at 232 (internal citation and quotation

marks omitted).

In the absence of an unusually suggestive temporal proximity, Albright must

show that Davis “engaged in a pattern of antagonism in the intervening period.”

Woodson, 109 F.3d at 920–21. Also relevant to the causation analysis is whether

employment concerns were documented before the protected activity took place.

LeBoon, 503 F3d at 232–34.

Nothing in the record supports a finding of antagonism toward Albright. Again,

Albright described his relationship with Davis as “fine,” “cordial,” and with “no

problems” and “no animosity.” (Albright Dep. 54:4–10.) Additionally, the fact that

Albright had already gone through the formal disciplinary process before invoking

FMLA undercuts his causation argument. Without the temporal proximity or a pattern

of antagonism toward Albright, he fails to establish a prima facie case of retaliation.

Even if he could, for the reasons discussed above in subsection III.A.4, Defendants have

articulated a legitimate, nondiscriminatory reason for his termination, and Albright is

not able to prove pretext.

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

GERALD J. PAPPERT, J.