# Burns v. USI INSURANCE SERVICES, LLC

> District Court, E.D. Pennsylvania · March 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10402923

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 18, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10402923

## How later opinions describe it (automated extraction)

- finding that assignment of a helper is not a reasonable accommodation

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10402923. Public record. Not legal advice.