Burns v. USI INSURANCE SERVICES, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BERNADETTE BURNS, :

Plaintiff, : No. 20-cv-05304-JMY

:

vs. :

:

USI INSURANCE SERVICES, LLC, :

Defendant. :

MEMORANDUM

Younge, J March 18, 2022

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

“MSJ”). (ECF No. 11.) The Court finds this matter appropriate for resolution without oral

argument. See Fed. R. Civ. P. L.R. 7.1(f). For the reasons set forth below, Defendant’s motion

for summary judgment will be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff was an Account Executive at USI Insurance Services, LLC (USI) when she

resigned from her job on September 20, 2019.1 (Response to Statement of Undisputed Facts

(hereinafter “Resp. SOF”) ¶ 28, ECF No. 12-1.) In her resignation letter, Plaintiff indicated that

she was experiencing severe anxiety along with panic attacks and that her job was affecting her

mental and physical health. (Id., Resignation Letter, Resp. Opp. MSJ, Ex. E., ECF No. 11-3.)

After submitting her resignation, she brought this action under the American with Disabilities

Act of 1990 (ADA), 42 U.S.C. § 12101, et seq. (Complaint ¶¶ 37-46, ECF No. 1.) Plaintiff

alleges that she was discriminated against on the basis of her mental health disability in violation

1 Plaintiff worked on Mark Delany’s book of business from 2005 until she resigned in 2019.

(Resp. SOF ¶ 2.) Ms. Habermehl was her manager on paper, but Mr. Delany controlled everything. (Id. ¶

76.) Plaintiff served as the primary contact for clients in Mr. Delany’s book of business by ensuring

renewals for client’s insurance policies, coordinating with marketing staff, and managing account

representatives, etc. (Id. ¶ 3.)

of the ADA. (Id.) She further alleges that the Defendant failed to accommodate her disability

and failed to engage in the interactive process.

On Friday, September 20, 2019, just prior to submitting her resignation letter, Plaintiff

had a meeting with her direct supervisor, Lisa Habermehl, Vice President of Commercial Lines.

(Resp. SOF ¶¶ 6, 21.) During this meeting, Ms. Habermehl told Plaintiff that she would receive

a six percent raise. (Resp. SOF ¶ 22.) Ms. Habermehl also told Plaintiff that Mr. Delany’s book

of business could not have two account representatives, and that USI would be cutting some of

his support staff. (Resp. SOF ¶ 6, 23.) At this point, Plaintiff contacted Mr. Delany who joined

the meeting to contest any staffing cuts to his book of business. (Burns Deposition page 191-

192, MSJ Ex. A., ECF NO. 12-2; Resp. SOF ¶ 24.) Mr. Delany told Ms. Hebermehl that he

wanted to ensure that defendant provided adequate staff to service his customers, and that he

intended to discuss the staffing issue with upper management meaning his superiors, Chuck

Parsons, P & C Practice Leader, and Dimitri Devieux, President of the Mid-Atlantic Region.

(Id.)

In the late afternoon on September 20, 2019, around 4:00 or 4:30 p.m., Plaintiff called

Mr. Delany and told him that she was going to quit. (Delany Deposition page 51, Response in

Opposition SJM Ex D, ECF No. 12-5; Burns Deposition page 196-199.) Mr. Delany testified

that she was crying and very upset during their phone conversation. (Id.) Mr. Delany reiterated

that he intended to speak to upper management about the discussion they had earlier in the day

with Ms. Habermehl and her desire to make staffing cuts.2 Mr. Delany also told Plaintiff that he

felt she should take the weekend to think things over prior to submitting her resignation.

(Delany Deposition page 51.) Around 5:38 that evening, Plaintiff emailed a resignation letter to

2 Delany testified that he contacted management over the weekend and staffing cuts were not

made.

Lisa Habermehl, Chuck Parson, Dimitri Devieux and Mark Delany. (Id. page 56, Resignation

Letter.)

In the evening on Friday, September 20, 2019 at 7:51 p.m., Plaintiff sent a suicide letter

to USI’s website through the “Contact Us” feature. The suicide letter read, “I am an employee

and I need to go on record that I quit my job, I wan (sic) in mental and physical danger my

family is staying by my side so I don’t kill myself.” (Suicide Letter, SJM, Exhibit F, ECF No.

11-3 page 114; Resp. SOF ¶ 39.) After Plaintiff returned to work the following week, Kathy

O’Grady, Chief Human Resources Officer, confronted Plaintiff with the suicide letter, and

Plaintiff responded by telling her it was a joke. (Resp. SOF ¶ 39.)

Over the weekend and into the morning on Monday, September 23, 2019, Devieux,

O’Grady, Mr. Delany and other members of the upper management at USI exchanged emails and

had conversations about Plaintiff’s resignation. (Resp. SOF ¶¶ 32, 34, 35-38, 128, 132, 134-

140.) In relationship to her disability discrimination claim, Plaintiff specifically highlights

comments made by Devieux. (Opp. Br. page 12.) At deposition, Devieux openly admitted that

he contacted O’Grady and requested that she contact Plaintiff immediately to accept her

resignation. (Devieux Deposition page 99, Opp. Ex. B, ECF No. 12-3.) He further explained

that he felt the situation was urgent because Plaintiff was having suicidal thoughts. (Id.)

Plaintiff also references an email sent by Ms. Habermehl in which she responded to

Plaintiff’s resignation letter by commenting, “here we go.” (Habermehl Email, Response in

Opposition MSJ, Ex. M, ECF No. 12-14.) To place this comment in its proper context, Ms.

Habermehl explained that she was referencing the fact that Plaintiff had previously submitted

resignation letters that she later rescinded. (Habermehl Deposition page 59, Response in

Opposition SJM Ex. F., ECF No. 12-7.) Plaintiff submitted a resignation letter in 2018 citing

“workload stress” from “the number of accounts.” (Resp. SOF ¶ 12.) She rescinded that

resignation. (Resp. SOF ¶ 13.) Citing an increase in her workload, Plaintiff submitted a second

resignation letter in April 2019. (Resp. SOF ¶ 14.) She rescinded that resignation, as well.

(Resp. SOF ¶ 15.) On Monday, September 23, 2019, after seeing Plaintiff’s suicide letter, Ms.

Habermehl commented, “What is interesting is that she sent it after she quit. She could have

turned this into a disability issue. Need to be careful about convincing her to stay.” (Habermehl

Text Message, Response in Opposition MSJ, EX. E., ECF No. 12-6.) At deposition, Ms.

Habermehl explained that her comment was not made with discriminatory animosity.

(Habermehl Deposition page 76.) She testified that she was simply bewildered and perplexed by

Plaintiff’s course of conduct and logic for submitting a suicide letter after resigning from her job.

(Id.)

On Monday, September 23, 2019, Plaintiff and Mr. Delany met first thing in the morning

between 8:00 a.m. and 8:30 a.m. to discuss her resignation. (Resp. SOF ¶ 31.) During the

meeting, Plaintiff openly admits that she never asked to rescind her resignation. (Id.; Burns

Deposition page 231-232.) Plaintiff now claims that she felt she could not rescind her

resignation because of comments made by Mr. Delany during their meeting. (Burns Deposition

page 231.) While discussing her resignation in light of the fact that upper management did not

approve of the threatened staffing cuts, Plaintiff claims that Delany told her, “It doesn’t matter

now with everything they know about you.” (Id. page 231 (In using the term “they”, Plaintiff

alleges that Mr. Delany was referring to upper management and what they knew about her

mental health).) Delany denies having ever made this statement or telling Plaintiff that she could

not rescind her resignation. (Delany Deposition page 77.) Delany testified that prior to reading

the Complaint that was filed in this matter, he knew nothing about Plaintiff’s purported desire to

rescind her resignation, and that the first time he ever heard anything about Plaintiff wanting to

rescind was when he was preparing for his deposition. (Id.) Delany further referenced the fact

that this was the third time that Plaintiff had submitted a resignation letter. (Id. page 70.)

II. STANDARD OF REVIEW:

Summary judgment is proper “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). In examining the defendant’s motion, the court must view the facts in the light most

favorable to the nonmovant, drawing all reasonable inferences in his favor. InterVest, Inc. v.

Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003). Disagreements over what inferences may

be drawn from the facts, even undisputed ones, preclude summary judgment. Ideal Dairy

Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996). Credibility determinations, the

drawing of legitimate inferences from facts, and the weighing of evidence are matters left to the

jury. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Summary judgment is to be granted

cautiously, with due respect for a party’s right to have its factually grounded claims and defenses

tried before a jury. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Anderson,

477 U.S. at 255.

III. DISCUSSION:

In response to Defendant’s motion for summary judgment, Plaintiff identifies three

distinct theories that she alleges allow her to proceed to trial on her claim that Defendant violated

the ADA. Plaintiff argues that she can present direct evidence to establish a claim for disability

discrimination in violation of the ADA based upon comments made by supervisors and upper

management in which she alleges they directly referenced her mental health status in conjunction

with her resignation. Plaintiff also argues that she can prove a circumstantial case of

employment discrimination by presenting evidence that satisfies the elements of the McDonald-

Douglas burden shifting analysis. Finally, Plaintiff asserts a separate claim for failure to

accommodate and failure to engage in the interactive process.

A. Plaintiff fails to Present Direct Evidence of Discrimination.

The evidence that Plaintiff offers in support of her employment discrimination claim is

woefully deficient to be classified as direct evidence of discrimination. To establish direct

evidence of discrimination, the plaintiff must point to evidence that “directly reflect[s] the

alleged discriminatory attitude” and be “so revealing of discriminatory animus that it is not

necessary to rely on any presumptions of the prima facie case to shift the burden of production.”

Buchsbaum v. Univ. Physicians Plan, 55 F. App’x 40, 45 (3d Cir 2002). “If the trier of fact must

infer discrimination from the employer’s remarks or actions, then the evidence is not direct

evidence of discrimination.” Weightman v. Bank of N.Y. Mellon Corp., 772 F. Supp. 2d 693, 702

(W.D. Pa. 2011). Assuming arguendo that Plaintiff was able to come forward with direct

evidence of employment discrimination, then she would not be required to establish the elements

of a prima facie case of employment discrimination in violation of the ADA under the

McDonnald Douglas burden shifting analysis. Woliski v. City of Erie, 900 Supp. 2d 553 (W.D.

Pa. Sep 28, 2021).

Plaintiff cites to three pieces of evidence in support of her theory that she can establish a

prima facie case of employment discrimination based on direct evidence. She cites to the fact

that during deposition, Devieux was asked why he felt it was important for Kathy O’Grady to

contact Plaintiff immediately and accept her resignation. (Devieux Deposition page 99-100,

Opp. Ex. B, ECF No. 12-3.) Devieux responded to this question by referencing Plaintiff’s

suicide threat, and he indicated that he believed the suicide threat gave the matter some urgency.

He further referenced the two previous occasions when upper management (Defendant)

convinced Plaintiff to rescind resignations that she had submitted, and the fact that they did not

intend to coerce Plaintiff on this occasion. In further support of her claim that she can produce

direct evidence of employment discrimination based on her disability, Plaintiff cites to the

conversation she had with Delany after returning to work on Monday morning – the conversation

in which Delany allegedly told her, “It doesn’t matter now with everything they know about

you.” (Burns Deposition page 231 (In using the term “they”, Plaintiff alleges that Mr. Delany

was referring to upper management and what they knew about her mental health).) Finally,

Plaintiff references an email that was sent by Habermehl in which she wrote “here we go again”

in reference to Plaintiff’s third and final resignation.

The Court disagrees with Plaintiff’s theory that she can support a prima facie claim of

disability discrimination with direct evidence. At no point did Devieux, Delany, Habermehl, or

any member of Defendant’s upper management make any improper reference to Plaintiff’s

mental health. Any reference that these individuals made to Plaintiff’s mental health must be

evaluated in context and in conjunction with the fact that Plaintiff herself referenced mental

health problems and work-related stress as her reason for resigning. Devieux clearly indicated

that Plaintiff’s suicide threat was a factor in his decision not to attempt to convince Plaintiff to

rescind her resignation. The fact that Devieux considered the suicide letter when making an

employment decision does not establish that he improperly took into account the Plaintiff’s

purported mental health disability. Plaintiff’s act of forwarding a suicide letter to Defendant’s

webpage was conduct that arguably arose from an underlying mental health problem or

disability. However, the conclusion that Plaintiff’s conduct was inextricably interwoven with her

mental health condition is a clear example of the type of evidence that requires an inference to

establish a fact. For the jury to conclude that Plaintiff had been discriminated against on the

basis of her disability, it would have to infer that Devieux knew that her suicide threat was a

symptom of a disability which is a conclusion that must be reached by an inference.

This same principle applies to the statements that Delany allegedly made to Plaintiff

during their conversation on Monday morning when she returned to work.3 Delany may have

been referring to Plaintiff’s mental health condition or the suicide threat that she forwarded to

Defendant’s webpage. To draw the conclusion that Delany was referring to Plaintiff’s mental

health condition and not her suicide threat would require the jury to draw a conclusion from the

evidence. Again, Plaintiff’s suicide threat constitutes conduct that was presumably related to a

mental health condition, but this conclusion still requires an inference to reach that conclusion.

The mere fact that Delany or Devieux may have made reference to the suicide letter that Plaintiff

submitted to the company webpage does not conclusively prove they were improperly referring

to Plaintiff’s mental health problem. The Court is equally unwilling to equate their comments

with direct evidence of discrimination because improper or disruptive workplace conduct can

fairly be considered by an employer in relationship to an employment decision. Coleman v. Pa.

State Police, No. 11-1457, 2013 U.S. Dist. LEXIS 99609, at *41 (W.D. Pa. July 13, 2013) (“[a]n

employee who is a direct threat to the safety of himself or others is not a qualified individual

with a disability”); Felix v. WisDOT, 828 F.3d 560 (7th Cir. July 6, 2016) (a disability that

results in unacceptable workplace behavior in the nature of a suicide threat can render an

employee unqualified to remain in a position and can constitute grounds for termination that fall

outside the ADA because an employer does not have to tolerate unacceptable behavior).

3 As previously mentioned, Delany denies ever having made this statement.

Habermehl’s statement of “here we go again” is equally open to interpretation given the

two previous resignations submitted by Plaintiff. Therefore, it does not constitute direct

evidence of employment discrimination.

B. Plaintiff Fails to Establish a Circumstantial Case of Employment Discrimination.

Plaintiff fails to present sufficient circumstantial evidence to establish a prima facie case

of disability discrimination in violation of the ADA. To establish a circumstantial claim for

disability discrimination under the ADA, Plaintiff must satisfy the elements of the McDonald

Douglas burden-shifting framework. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). The

first step in the McDonald Douglas burden-shifting framework requires that Plaintiff establish a

prima facie case of discrimination. Id. At the summary judgment stage, this means Plaintiff

must present sufficient evidence to show: (1) that she is a disabled person within the meaning of

the ADA; (2) that she is otherwise qualified to perform the essential functions of her job with or

without reasonable accommodation; and (3) that she suffered an adverse employment action

because of her disability. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999);

see also Sulima v. Tabyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010). At the summary

judgment stage Plaintiff cannot rely on unsupported allegations in the pleadings; rather, she must

establish by a preponderance of the evidence that genuine issues of material fact exist for trial.

Solomon v. Soc’y of Auto. Eng’rs, 41 Fed. Appx. 585, 586 (3d Cir. 2002) (affirming district

court’s rejection of claims based solely on the plaintiff’s own testimony, stating “a plaintiff

cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid a motion

for summary judgment.”) (citing Celotex Corp v. Catrett, 477 U.S. 317, 324 (1986)); see

also Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 252 (3d Cir. 1999) (holding same).

Plaintiff is unable to satisfy the third prong of the test to establish a prima facie case of

discrimination – she has not established that she suffered an adverse employment action –

because Defendant did not coerce her into resigning from her job as an Account Executive at

USI Insurance Company. Schofield v. Metro Life Ins. Co., 2006 U.S. Dist. LEXIS 65998 * 25

(E.D. Pa. Sep 15, 2006), aff’d, 252 F. App’x 500, 503-505 (3d Cir. 2007) (an employee who

voluntarily resigns cannot show he suffered an adverse employment action). An adverse

employment action occurs when an employer subjects an employee to a significant change in

employment status. LaRochelle v. Wilmac Corp., 210 F. Supp. 3d 658, 690 (E.D. Pa. Sep. 27,

2016). “An adverse employment action necessarily encompasses all tangible employment

actions such as hiring, firing, failing to promote, reassignment or a decision causing a significant

change in benefits.” Sherrod v. Phila. Gas Works, 57 F. App’x 68, 73 (3d Cir. 2003). However,

“[u]nless there is a claim for constructive discharge an employee’s voluntary resignation does

not constitute an adverse employment action.” LaRochelle, 210 F. Supp. 3d at 705; Checa v.

Drexel, No. 16-108, 2016 U.S. Dist. LEXIS 83524, at * 16 (E.D. Pa. June 28, 2016) (“[o]our

Court of Appeals had not recognized voluntary resignations to be adverse employment action.”);

Sherrod v. Phila. Gas Works, 209 F. Supp. 2d 443, 451 (E.D. Pa 2002), aff’d, 57 F. App’x 68 (3d

Cir. 2003) (granting summary judgment where plaintiff tendered a resignation, finding it was

“clearly a voluntary act.”).

Plaintiff makes an argument that is not supported by the facts of this case or the law in

this jurisdiction when she argues that Defendant violated the ADA by not permitting her to

rescind her resignation. Plaintiff openly admits that she never attempted to rescind her

resignation (Burns Deposition page 231-232), and she cannot now circumvent this fact. Plaintiff

argues that she did not attempt to rescind her resignation because she was left with the

impression that any attempt to rescind would be futile following the conversation that she had

with Delany at their meeting on Monday morning in which he purportedly told her, “It doesn’t

matter now with everything they know about you.” (Burns Deposition page 231; Opposition

Brief page 13.) However, Plaintiff’s argument is of no moment because even if Plaintiff had

attempted to rescind her resignation (which she did not) and Defendant refused to rehire

Plaintiff, this is not an adverse action. Henderson v. Mercy Catholic Med. Ctr, No. 17-1271,

2018 U.S. Dist. LEXIS 113191, at *17-18 (E.D. Pa. July 9, 2018) (“An employer’s refusal to

allow an employee to rescind his resignation has been held not to be an adverse employment

action.”) (quoting Jones v. McCormick & Schmick’s Seafood Rests., Inc., No. 12-4503, 2014

U.S. Dist. LEXIS 58460, at *11 (D.N.J. Apr. 28, 2014)); Checa, 2016 U.S. Dist. LEXIS 83524,

at *16 (“courts in this Circuit specifically decline to recognize the refusal to allow an employee

to rescind his resignation to be an adverse employment action, without a contractual or statutory

duty to do so, or without a finding of a constructive discharge.”) (citing Hibbard v. Penn-

Trafford Sch. Dist., No. 13-622, 2014 U.S. Dist. LEXIS 20237 (W.D. Pa. Feb. 19, 2014));

Schofield, 2006 U.S. Dist. LEXIS 65998, at *25-26 (“failure to accept a previous employee’s

rescission of his voluntary resignation is not an adverse employment action for the simple reason

that the employment relationship has ended.”).

B.1. Plaintiff’s Allegations of Constructive Discharge Do Not Nullify Her

Voluntary Resignation.

Plaintiff’s constructive discharge argument does not prevent the Court from entering

summary judgment in favor of Defendant. To establish a constructive discharge, a plaintiff must

show the situation surpasses “the threshold of intolerable conditions.” Duffy v. Paper Magic

Group, Inc., 265 F.3d 163, 169 (3d Cir. 2001). That intolerable threshold “is assessed by the

objective standard of whether a reasonable person in the employee’s position would have felt

compelled to resign – that is whether [she] would have had no choice but to resign.” Gilbert v.

Philadelphia Media Holdings, LLC, 564 F. Supp. 2d 429, 440 n.2 (E.D. Pa. 2008).

Plaintiff essentially argues that her resignation was involuntary based on a theory of

constructive discharge. (Opposition Brief page 20.) In support of her constructive discharge

theory, she points to an ever-increasing workload and lack of support staff which made the

conditions of her employment intolerable. (Id.) She specifically points to a meeting she had

with Habermehl just before she submitted her resignation in which Habermehl indicated that

further cuts would be made to Plaintiff’s support staff. (Id.) Plaintiff neglects to point-out that

Delany was also involved in the meeting, and he clearly stated his intention to contest any

staffing cuts to his book of business. (Burns Deposition page 191-192; Resp. SOF ¶ 112.)

Delany testified that he spoke to upper management following the meeting with Habermehl and

was assured that Defendant would provide support for his book of business. (Resp. SOF ¶¶ 128,

131-132, 134.) Therefore, the facts do not support Plaintiff’s constructive discharge theory.

Plaintiff’s constructive discharge theory is not only inconsistent with the facts of this

case, it is also inconsistent with sound legal precedent in this jurisdiction. Generally speaking,

“staff shortages alone do not support a constructive discharge claim.” Rager v. UPS, No. 07-

0617, 2008 U.S. Dist. LEXIS 90650, at *13 (W.D. Pa. Nov. 7, 2008). Similarly, “increasing

workload is not sufficient in and of itself to yield a constructive discharge.” Abror v. Pa. Dep’t

of Labor & Indus. Office of Vocational Rehab., No. 17-cv-2221, 2019 U.S. Dist. LEXIS 108468,

at *10-11 (M.D. Pa. June 28, 2019).

Plaintiff’s claim that she was forced to resign under duress based on Defendant’s active

misrepresentation of material fact – staffing cuts – is equally unpersuasive. In support of her

contention, she cites to Butler v. BTC Foods, Inc., No. 12-0492, 2014 U.S. Dist. LEXIS 11286,

at *13-14 (E.D. Pa. Jan 30, 2014) (“An employee’s resignation will be considered involuntary if:

(1) the employer forces the resignation by using coercion or duress, or (2) employee resigned

because the employer deceived or misrepresented a material fact to the employee.”). However,

Plaintiff was not actively misled into submitting a resignation because Delany contested the

staffing cuts suggested by Habermehl, and he clearly told Plaintiff that he intended to address the

issue with upper management prior to Plaintiff submitting her resignation. Under these facts,

Plaintiff cannot establish that she was coerced or placed under duress by a material

misrepresentation.

C. Entry of Summary Judgment is Appropriate on Plaintiff’s Claim for Failure to

Accommodate and Failure to Engage in the Interactive Process.

Plaintiff is unable to establish that she requested an accommodation for a professionally

diagnosed mental health disability. Plaintiff is also unable to establish that she could have been

reasonably accommodated. Therefore, summary judgment must be entered on her failure to

accommodate claim. To establish a claim for failure to accommodate, a plaintiff must show that:

(1) she was disabled and the employer knew it; (2) she requested an accommodation; (3) the

employer did not make a good faith effort to accommodate; and (4) the employee could have

been reasonably accommodated. Gardner v. SEPTA, 410 F. Supp. 3d 723, 741 (E.D. Pa. 2019).

At deposition, when asked about her request for an accommodation, she said that she

requested support. (Resp. SOF ¶ 51.) According to Plaintiff, she had conversations about

support with three USI employees; Mr. Delany, Ms. Habermehl, and Mr. Devieux. (Resp. SOF ¶

52.) The evidence of record establishes that Plaintiff never contacted human resources in

connection with her purported request for an accommodation. It also establishes that Plaintiff

never made a specific request for an accommodation in connection with her purported mental

health disability. Plaintiff’s evidence, at best, establishes that Mr. Delany and Ms. Habermehl

were aware that Plaintiff had been diagnosed with or was experiencing anxiety at some point in

2016 and that she was later diagnosed with panic attacks on September 11, 2019—just days

before she submitted her resignation. (Burns Deposition page 97.) However, the record is scant

as to evidence to establish that Defendant was aware that Plaintiff had been diagnosed with a

mental health condition, and more specifically that she was requesting an accommodation based

on that condition. Plaintiff did not establish that any request for support was a request for an

accommodation in connection with her purported disability.

For example, in connection with her failure to accommodate claim, Plaintiff testified, “I

spoke to [Delany] regarding the additional workload and the increased difficulty of the accounts

and the various numerous tasks that were coming in and they’re hard to keep up with. I told him

I was having stress and anxiety, and he said he would talk to [upper management].” (Burns

Deposition page 256.) Plaintiff alleges that she asked Mr. Delany to look at the book of business

to see if accounts could go elsewhere, take away parts of her workload, hire someone new or

transition someone into a role to support her and provide assistance with marketing. (Resp. SOF

53.) Plaintiff does not clearly identify when these conversations occurred or that she told Delany

that she was requesting an accommodation in connection with a mental health condition that had

been diagnosed by a professional. The fact that Plaintiff was experiencing work-related stress

and anxiety alone is insufficient to establish that she requested or was entitled to an

accommodation under the ADA. Shafnisky v. Bell Atl., Inc., No. 01-3044, 2002 U.S. Dist.

LEXIS 21829, at *20 (E.D. Pa. Nov. 5, 2002) (finding the Plaintiff’s failure to accommodate

claim failed because although plaintiff requested a position with less stress and employer knew

of her condition, there was no evidence the request for the new position reflected a need to

accommodate a disability); Caps v. Mondelez Global, LLC, 147 F. Supp. 3d 327, 340 (E.D. Pa.

2015) (granting summary judgment on the plaintiff’s failure to accommodation claims because

“[the plaintiff] never made a request for an accommodation.”).

Plaintiff’s testimony about her conversations with Ms. Habermehl in relationship to her

failure to accommodate claim, presents a similar problem to that of her testimony in relationship

to Ms. Delany. With the exception of her September 11, 2019 medical appointment and

diagnosis of panic attacks, Plaintiff offers little to establish when these conversations took place.

(Burns Deposition 270-271.) Plaintiff further fails to establish that she told Ms. Habermehl she

was requesting an accommodation in connection with a professionally diagnosed condition of

anxiety or panic attacks. (Burns Deposition.) In addition, Plaintiff testified that when she told

Habermehl that she was experiencing stress and anxiety in relationship to a project identified as

the Surrey Carlton Account, Ms. Habermehl removed the project from Plaintiff’s workload.

(Burns Deposition page 171, 175, 176, 177.) Ms. Habermehl also removed a project identified

as the BFC First Avenue renewal, (Burns Deposition page 176), which further undermines her

failure to accommodate claim.

Plaintiff equally fails to present evidence to establish that her requested accommodation

was reasonable. The ADA does not require that an employer eliminate an essential function of

an employee’s job, hire new employees or transfer existing employees into a new role to provide

support. Lucarelli v. Contail, No. 98-CV-5904, 2002 U.S. Dist. LEXIS 12201, at *28 (E.D. Pa.

March 26, 2002) (“A job function is an essential function where the reasons the position exists is

to perform that particular function.”). Courts in the Third Circuit and in other circuits have held

that eliminating responsibilities that are essential functions of the job – or shifting essential

functions to other employees – is not a reasonable accommodation as a matter of law. See Nixon

v. Runyon, 856 F. Supp. 977, 989 (E.D. Pa. 1994) (“An accommodation that eliminates an

essential function of a job is not reasonable.”); Irving v. Chester Water Auth., No. 08-5156, 2010

U.S. Dist. LEXIS 60415, at *14-15 (E.D. Pa. June 17, 2020) (“An accommodation that would

shift Plaintiff’s burden to other employees or require other employees to work harder is not the

type of reasonable accommodation envisioned by the ADA.”); Lombardo v. Air Products

Chemicals Inc., No. 05-1120, 2006 U.S. Dist. LEXIS 46077, at *39-40 (E.D. Pa. July 7, 2006)

(finding that reallocating essential functions of job to other employees is unreasonable as a

matter of law); Lucarelli, 2002 U.S. Dist. LEXIS 12201, at *20 (“Employers are not, however,

required to assign existing employees or hire additional employees to perform essential functions

of an employee’s job . . .”); Moritz v. Frontier Airlines, 147 F.3d 784, 788 (8th Cir. 1998) (“[i]t

is well settled that an employer is under no obligations to reallocate the essential functions of a

position that a qualified individual must perform”); Cochrum v. Old Ben Coal Co., 102 F.3d 908,

912 (7th Cir. 1996) (finding that assignment of a helper is not a reasonable accommodation);

Harvin v. Manhattan & Bronx Surface Transit Operating Auth., No. 14-5125, 2018 U.S. Dist.

LEXIS 56759, at *16 (E.D. N.Y. 2018) (“[h]er request for a reduced workload—by giving more

work to her co-workers or having another employee come into work . . . was not a request for a

reasonable accommodation.”).

Plaintiff’s claim for failure to engage in the interactive process fails for a reason similar

to the reason that her claim for failure to accommodate fails. Her evidence simply fails to

establish that she requested a specific accommodation for a diagnosed disability. Therefore, she

cannot prove that Defendants failed to engage in the interactive process. To show an employer

failed to engage in the interactive process, the plaintiff must establish four things: (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) that the employer lacked good faith because the

employee could have been reasonably accommodated. Conneen v. MBNA Am. Bank, N.A., 334

F.3d 318, 330-331 (E.D. Pa. June 27, 2003).

IV. CONCLUSION:

For these reasons, the Defendant’s Motion for summary judgment is granted and an

appropriate order will follow.

BY THE COURT:

/s/ John Milton Younge

Judge John Milton Younge