HEARD v. HAND & STONE MASSAGE AND FACIAL SPA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AMINAH HEARD,

Plaintiff, CIVIL ACTION

v. NO. 22-3212

J AND G SPAS, LLC, D/B/A HAND &

STONE MASSAGE AND FACIAL SPA,

Defendant.

OPINION

Slomsky, J. April 8, 2024

TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................ 3

II. BACKGROUND .................................................................................................................. 5

A. Factual Background .................................................................................................. 5

B. Procedural Background ............................................................................................ 9

III. STANDARD OF REVIEW.................................................................................................. 9

IV. ANALYSIS ...........................................................................................................................11

A. Race Discrimination in Violation of Section 1981, Title VII, and the PHRA .....11

1. Prima Facie Case of Race Discrimination ....................................................... 12

2. Legitimate Non-Discriminatory Reason for Adverse

Employment Decision ..................................................................................... 16

3. Pretext for Discrimination ............................................................................... 18

B. Disability Discrimination under the ADA and PHRA ......................................... 21

1. Prima Facie Case of Disability Discrimination ............................................... 21

2. Legitimate Non-Discriminatory Reason for Plaintiff’s Termination ............... 24

3. Pretext for Disability Discrimination .............................................................. 24

C. Failure to Accommodate Plaintiff’s Disability under the ADA ........................... 27

D. Disability-Based Retaliation under the ADA and PHRA ..................................... 30

1. Prima Facie Case of Disability-Based Retaliation .......................................... 30

V. CONCLUSION .................................................................................................................. 32

I. INTRODUCTION

A day at the spa is typically a welcome respite for many. In the instant case, the events that

took place on April 13, 2021 at J and G Spas located in Northeast Philadelphia proved an exception

to this notion. On that day, employees on the premises of the spa were involved in a verbal

altercation that could be overheard by clients. It led to Plaintiff Aminah Heard (“Plaintiff” or

“Heard”) being terminated as an employee and, in turn, her filing suit against her former employer,

Defendant J and G Spas, LLC, doing business as Hand and Stone Massage and Facial Spa

(“Defendant” or “J and G Spas” or the “Spa”). She alleges that she was terminated because of her

race and disability and even that Defendant retaliated against her for asking for a reasonable

accommodation for her disability. (See Doc. No. 24.) Plaintiff was a massage therapist at the Spa.

(See Doc. No. 26-4 at 4.)

Ms. Heard avers that she was subjected to: (1) race discrimination in violation of 42 U.S.C.

§ 1981 (“Section 1981”) (“Count I”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq. (“Title VII”) (“Count II”), and the Pennsylvania Human Relations Act, 43 P.S. § 951, et

seq. (“PHRA”) (“Count IV”); (2) a failure to accommodate her disability in violation of the ADA

(“Count III”); (3) disability discrimination in violation of the ADA (“Count III”) and the PHRA

(“Count IV”), and (4) retaliation in violation of the ADA (“Count III”).1 (See Doc. No. 24.)

Before the Court is a Motion for Summary Judgment filed by Defendant J and G Spas,

LLC. (Doc. No. 26.) In the Motion, Defendant argues that summary judgment should be granted

1 In Plaintiff’s Amended Complaint, she also alleges that she was subjected to: (1) a hostile work

environment in violation of Section 1981 (“Count I”) and Title VII (“Count II”) (2) race-based

retaliation in violation of Section 1981 (“Count I”), Title VII (“Count II”) and the PHRA (“Count

IV”). (See Doc. No. 24.) However, Plaintiff has since stipulated that these claims be dismissed.

(See Doc. Nos. 30 at 33, 42, 43.)

on each of Plaintiff’s claims in the Amended Complaint because “there are no genuine issues of

material fact; and . . . Plaintiff is unable to set forth a prima facie case of race discrimination . . .

disability discrimination, or retaliation within the meaning of Section 1981, Title VII, ADA, or the

PHRA.” (Doc. No. 26-2 at 12.) Defendant maintains that Plaintiff was terminated following its

investigation into the incident on April 13, 2021 because Plaintiff’s conduct that day violated

Defendant’s Personal Behavior, Code of Conduct and Zero Tolerance Employment Policies

(“Defendant’s Policies”).2 (See id. at 3.) Defendant argues that the violation of its Policies

2 Defendant’s Policies state in part as follows:

Personal Behavior

a. “The Company maintains a Zero Tolerance Policy against any kind of improper

behavior”;

b. J&G expressly prohibits “physical threats, threatening or abusive language,

profanity of any act of aggression or violence towards anyone”;

c. “[T]hreats are deemed to mean any verbal or physical harassment, attempts at

intimidation or to instill fear in others, menacing gestures, flashing of concealed

weapons, stalking, verbal or physical abuse, or other hostile, aggressive,

injurious and destructive actions undertaken for the purposes of domination or

intimidation”; and

d. “Any violations of this policy may lead to disciplinary actions up to and

including termination.”

. . .

Code of Ethics

a. “Project a professional image and uphold the highest standards of

professionalism” and “Accept responsibility to do no harm to the physical,

mental and emotional well-being of clients, associates and self”;

b. “Hand and Stone’s strict adherence to its Code of Ethics and Zero Tolerance

Policy serves to protect the public and Hand and Stone employees.”;

. . .

provided a legitimate business reason for the termination of Plaintiff’s employment. (See id. at 2.)

For reasons stated infra, Defendant’s Motion for Summary Judgment will be denied.

II. BACKGROUND

A. Factual Background

In 2019, Plaintiff Aminah Heard, who is a Black and Native American woman, began her

employment with Defendant J and G Spas, LLC. (See Doc. Nos. 24-1 at 2, 26-4 at 4.) Plaintiff

was employed as a licensed massage therapist at J and G Spas located in Northeast Philadelphia.

(See Doc. No. 26-4 at 4.) In this position, Plaintiff was directly supervised by Heather Snock

(“Snock”), who was general manager of the Spa where Plaintiff worked. (See id. at 5.) Snock

reported directly to Carin Barlow (“Barlow”), who was Regional Director of J and G Spas, LLC.

(See Doc. No. 26-5 at 5.) Barlow was present at the Northeast Philadelphia location of J and G

Spas three days a week. (See id. at 6.) Joseph Erace and Bryan Erace (“Eraces”) are the owners

of J and G Spas. (See id. at 5.)

When Plaintiff was hired in 2019, she informed Barlow that she had a disability: an injury

to her right ankle that occurred during a car accident. (See Doc. Nos. 26-4 at 16, 30-2 at 2.) During

her employment with Defendant, she received monthly cortisone shots for her ankle pain. (See

Doc. No. 26-4 at 18.) The ankle injury made it difficult for her to stand for long periods of time.

(See id. at 16.) On March 30, 2021, Plaintiff reached out to Snock and Barlow, her supervisors,

and requested an accommodation for her disability in the form of a rolling cart to lean on for

support during her work and to lessen the strain on her affected ankle. (See Doc. Nos. 30-2 at 3,

e. J&G has a “Zero Tolerance Policy and considers harassment in all its form to

be a serious disciplinary offense and any violation of this policy will result in

disciplinary action up to and including termination of employment.”

(Doc. No. 26-2 at 20-21.)

26-4 at 16.) The requested cart also would hold the hot stones required for a Himalayan Hot Stone

Therapy,3 a service offered by Plaintiff in her capacity as a massage therapist. (See Doc. No. 26-

4 at 19-20.) During a Himalayan Hot Stone Therapy treatment, Plaintiff “continuously had to

stand up and back down again multiple time[s] to apply the hot stones around a client’s body.”

(Doc. No. 30-2 at 4.) By holding the stones, the cart would have reduced the movement and strain

on Plaintiff’s right ankle. (See id.) Plaintiff asserts that such a cart would have cost J and G Spas

between 150 and 500 dollars. (See Doc. No. 30 at 23.) While employed at J and G Spas, Plaintiff

never received this requested cart as an accommodation. (See Doc. No. 26-4 at 16.)

While employed at J and G Spas, Plaintiff worked with two individuals: (1) Brittany Rose

Sidner (“Sidner”), who is, like Plaintiff, a person of color, and (2) Meredith O’Brien (“O’Brien”),

who is White. (See Doc. Nos. 26-4 at 34, 26-5 at 16.) On April 13, 2021, the three women—

Plaintiff, Sidner, and O’Brien—were involved in a verbal confrontation while at work at J and G

Spas located in Northeast Philadelphia.4 (See Doc. No. 26-4 at 41.) That day, Plaintiff was

3 During a Himalayan Hot Stone Therapy, multiple stones are heated and placed on trigger points

in the body to facilitate relaxation. According to Plaintiff, this service was more difficult to

perform due to her disability, and a cart would have helped:

Because when you are performing the hot stone modality, you have to get up, get

down, get up, get down and go around the body. A table would have held stones,

and I could have took the stones with me. So that was actually less movement on

my ankle.

(Doc. No. 26-4 at 19-20.)

4 At the time of the incident, Plaintiff and Sidner were romantically involved. (Doc. No. 26-4 at

13.) In addition, Plaintiff noted that she filed for a Protection from Abuse Order against Sidner

because Sidner “threatened [Plaintiff’s] life . . . with a firearm” when Sidner showed Plaintiff a

gun in the break room at J and G Spas. (Doc. No. 26-4 at 14.) In addition, Plaintiff had been

married to a man named Marcus Bowman for fourteen years, and they were married during the

time that Plaintiff was employed at J and G Spas. (See id. at 13.)

standing in the parking lot outside the Spa on a break from work.5 (See Def.’s Ex. C; see also Doc.

No. 30-2 at 4.) Sidner pulled into the parking lot in a vehicle, and when Sidner got out of her car,

she and Plaintiff exchanged words. (See id.) Sidner then walked into the Spa to go to work, and

Plaintiff walked into the Spa soon thereafter. (See Doc. Nos. 30-2 at 4, 26-5 at 14.) Once inside

the building, Plaintiff entered the break room where she placed her handbag in a locker. (See Doc.

No. 30-2 at 4.) Sidner entered the break room as well, and at that point, Plaintiff asserts that Sidner

“threatened to kill [Plaintiff] and brandished her firearm in [Defendant’s] break room . . . in a small

bag.” (Doc. Nos. 30-2 at 4, 26-4 at 27.) Sidner then left the break room. (See Def.’s Ex. D.) Soon

after, Plaintiff also left the break room to “report [] Sidner’s threats and possession of a firearm to

[] Snock.”6 (Doc. No. 30-2 at 4.)

At this point, Sidner and Plaintiff became engaged in a verbal dispute7 which was

overheard by their co-worker, O’Brien, a White woman who worked as an aesthetician at the Spa.

(See id. at 5.) O’Brien “began instigating and inciting [ ] Sidner’s threats in front of clients near

5 On a Motion for Summary Judgment, the Court must view the facts in the light most favorable

to the non-movant. Chambers ex rel. Chambers v. Sch. Dist. of Philadelphia Bd. of Educ., 587

F.3d 176, 181 (3d Cir. 2009). But for the sake of contextualizing Defendant’s arguments infra,

Defendant alleges that Plaintiff was “lying in wait” in the parking lot, effectively stalking Sidner

until she arrived at work for the purposes of confronting Sidner in the parking lot. (Doc. No. 26-

2 at 10.)

6 For the purposes of the Motion for Summary Judgment, the Court must view the facts in the light

most favorable to Plaintiff. However, for purposes of clarity regarding Defendant’s arguments

infra, Defendant disagrees with Plaintiff’s version of the events on April 13, 2021. Defendant

asserts that Plaintiff “lay in wait” in the parking lot of the Spa and followed Sidner into the Spa

where Plaintiff harassed Sidner. (See Doc. No. 26-2 at 10.) Defendant also asserts that Plaintiff

struck Sidner as Sidner left the break room. (See Doc. No. 31 at 6, n. 8.) Defendant’s arguments

are more properly for a trier of fact to consider at trial.

7 The dispute between Sidner and Plaintiff concerned cancelled flights to Miami. (See Doc. No.

26-4 at 29.) In Plaintiff’s words, “Rose and I was supposed to on a vacation and I decided to no

longer go. I reached out to her very respectfully via text asking for my funds back. She didn't

reply so when I was coming off of my scheduled break and she was coming in to work I decided

to talk to her in a very calm none threatening manner in the parking lot.” (Doc. No. 30-3 at 72.)

the front desk . . . [and] arguing with [Plaintiff] loudly in the front of the lobby and refused to stop

talking about the firearm situation with other employees after [Plaintiff] had asked her to.” (Id.)

During Plaintiff’s verbal interactions with O’Brien, Plaintiff called O’Brien a “fat b*tch” in the

public area of the Spa. (Doc. No. 26-4 at 23.) In response, O’Brien told Plaintiff to “shut the f*ck

up.” (See Doc. No. 30-2 at 5.) Plaintiff asserts that she and Sidner did not raise their voices during

the altercation, but O’Brien did.8 (See Doc. No. 26-4 at 17.)

Following the incident on April 13, 2021, Plaintiff attempted to contact Snock to report the

incident and left a voicemail message with Snock. (See Doc. No. 30-2 at 5.) Snock reached out

to O’Brien for a description of what happened on April 13, 2021. (See Doc. No. 26-10 at 2.) When

Plaintiff saw Snock in person, she told Snock about her perspective of what happened during the

incident. (See Doc. No. 30-2 at 6.) Thereafter, Plaintiff was suspended from work, and on April

18, 2021, her employment was terminated. (See Doc. No. 26-4 at 37.) On the date of her

termination, three weeks had elapsed since Plaintiff’s request for a cart accommodation. It was

never provided to Plaintiff. (See id. at 21.)

Defendant asserts that it terminated Plaintiff because her conduct on April 13, 2021

violated Defendant’s Policies. (See Doc. No. 26-2 at 10.) Plaintiff alleges that her termination

was the result of disability and race discrimination because Defendant did not have any intention

of accommodating Plaintiff’s disability, and because O’Brien, a White woman, was not terminated

despite O’Brien’s involvement in the April 13, 2021 incident. (See Doc. No. 24.)

8 O’Brien claims that Plaintiff and Sidner were arguing loudly, and Plaintiff concedes that the

verbal dispute could be heard in the Spa. (See Doc. No. 26-4 at 17.)

B. Procedural Background

On September 12, 2023, Plaintiff filed the Amended Complaint, which is the operative

complaint here. (Doc. No. 24.) In the Amended Complaint, Plaintiff brings the following claims:

(1) race discrimination in violation of 42 U.S.C. § 1981 (“Section 1981”) (“Count I”), Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) (“Count II”), and the

Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. (“PHRA”) (“Count IV”); (2) failure to

accommodate Plaintiff’s disability in violation of the ADA (“Count III”); (3) disability

discrimination in violation of the ADA (“Count III”) and the PHRA (“Count IV”), and (4)

retaliation in violation of the ADA (“Count III”). (See Doc. No. 24.) Plaintiff avers that she was

unlawfully terminated in violation of these statutes.

On November 3, 2023, Defendant filed the instant Motion for Summary Judgment. (Doc.

No. 26.) On December 1, 2023, Plaintiff filed her Response in Opposition. (Doc. No. 30.) On

December 8, 2023, Defendant filed its Reply. (Doc. No. 31.) On December 13, 2023, Plaintiff

filed a Motion for Leave to File a Sur-Reply. (Doc. No. 32.) On December 14, 2023, Defendant

filed a Response in Opposition to Plaintiff’s Motion for Leave to File Sur-Reply. (Doc. No. 33.)

On December 18, 2023, the Court granted Plaintiff’s Motion for Leave to File Sur-Reply, and

Plaintiff filed her Sur-Reply on December 27, 2023. (Doc. Nos. 34, 37.) The Motion for Summary

Judgment (Doc. No. 26) is now ripe for an Opinion.

III. STANDARD OF REVIEW

Granting summary judgment is an extraordinary remedy. 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). In reaching this decision,

the court must determine whether “the pleadings, depositions, answers to interrogatories,

admissions, and affidavits show there is no genuine issue of material fact and that the moving party

is entitled to judgment as a matter of law.” Favata v. Seidel, 511 F. App’x 155, 158 (3d Cir. 2013)

(quoting Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010)). A disputed

issue is “genuine” only if there is a sufficient evidentiary basis on which a reasonable jury could

find for the non-moving party. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). For a fact to be considered

“material,” it “must have the potential to alter the outcome of the case.” Favata, 511 F. App’x at

158. Once the proponent of summary judgment “points to evidence demonstrating no issue of

material fact exists, the non-moving party has the duty to set forth specific facts showing that a

genuine issue of material fact exists and that a reasonable factfinder could rule in its favor.” Id.

(quoting Azur, 601 F.3d at 216).

In deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Id. (alteration in original)

(quoting Chambers ex rel. Chambers v. Sch. Dist. of Philadelphia Bd. of Educ., 587 F.3d 176, 181

(3d Cir. 2009)). The Court’s task is not to resolve disputed issues of fact, but to determine whether

there exist any factual issues to be tried. See Anderson, 477 U.S. at 247–49. Whenever a factual

issue arises which cannot be resolved without a credibility determination, at this stage the Court

must credit the nonmoving party’s evidence over that presented by the moving party. See id. at

255. If there is no factual issue, and if only one reasonable conclusion could arise from the record

regarding the potential outcome under the governing law, summary judgment must be awarded in

favor of the moving party. See id. at 250.

IV. ANALYSIS

A. Race Discrimination in Violation of Section 1981, Title VII, and the PHRA

Plaintiff alleges claims of race discrimination in violation of Section 1981, Title VII, and

the PHRA in Counts I, II, and IV of the Amended Complaint.9 (See Doc. No. 24.) Such anti-

discrimination statutes prohibit employers from discriminating against employees based on

protected characteristics, including race and color.10 Under these statutes, when only

circumstantial evidence of race discrimination exists, the discrimination claims are analyzed under

the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). The McDonnell Douglas framework first requires that a plaintiff alleging a race

discrimination claim establish a prima facie case of discrimination. 411 U.S. 792, 802 (1973). If

the plaintiff establishes a prima facie case, the burden then shifts to the defendant to “articulate

some legitimate, non-discriminatory reason” for the adverse employment action. See id. If the

9 Title VII makes it an “unlawful employment practice for an employer . . . to discriminate against

any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e–2(a)(1). Section 1981 provides: “[a]ll persons within the jurisdiction of the

United States shall have the same right in every State and Territory to make and enforce contracts

. . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). And the Pennsylvania Human

Relations Act proscribes: “[i]t shall be an unlawful discriminatory practice . . . [f]or any employer

because of the race, color, religious creed, ancestry, age, sex, national origin, or non-job related

handicap or disability . . . to refuse to hire or employ or contract with, or to bar or to discharge

from employment such individual . . . or to otherwise discriminate against such individual . . .

with respect to compensation, hire, tenure, terms, conditions or privileges of employment or

contract . . .” 43 Pa. Stat. Ann. § 955(a).

10 Claims of race discrimination under Title VII, Section 1981, and the PHRA are governed under

the same legal framework. See Verma v. Univ. of Pa., Civ. A. No. 11-611, 2012 WL 1835727,

at *7 (E.D. Pa. May 18, 2012) ("Discrimination claims under the PHRA are subject to the same

standards as Title VII for purposes of summary judgment.") (citing Jones v. Sch. Dist. of Phila.,

198 F.3d 403, 409 (3d Cir. 1999)); see also Langley v. Merck & Co., Inc., 186 F. App'x 258, 261

n.2 (3d Cir. 2006) (finding that the elements of employment discrimination under Title VII are

“virtually identical” to those under Section 1981). Therefore, Plaintiff’s claims of race

discrimination under Section 1981, Title VII, and the PHRA will be analyzed under the same

framework.

defendant does advance a legitimate, non-discriminatory reason, the burden shifts back to the

plaintiff to prove that the reason is pretextual, and the real reason for the adverse action is

discrimination. See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999); see also Boykins

v. SEPTA, 722 F. App’x 148, 152 (3d Cir. 2018).

1. Prima Facie Case of Race Discrimination

To establish a prima facie case of race discrimination, a plaintiff is required to show: (1)

she is a member of a protected class; (2) she was qualified for the job that she held; (3) she was

terminated; and (4) that her replacement is of a different race than the plaintiff or there is some

other basis (such as comparator or statistical evidence) for inferring discriminatory intent.

McDonnell Douglas Corp., 411 U.S. at 800-02; see also Jones, 198 F.3d at 410-11.

Here, the first, second, and third prongs are not in dispute. In this regard, 1) Plaintiff is a

Black and Native American Woman; (2) when hired, Plaintiff was qualified to be a licensed

massage therapist,11 and (3) Plaintiff was terminated by Defendant on April 18, 2021. (See Doc.

No. 26-2 at 16.)

Therefore, the only element in dispute is the fourth element: whether the adverse

employment action occurred in a manner giving rise to an inference of discrimination. “A plaintiff

may show circumstances giving rise to an inference of discrimination with any kind of relevant

evidence, including ‘comparator evidence, evidence of similar racial discrimination against other

employees, or direct evidence of discrimination from statements or actions by [the plaintiff’s]

supervisors suggesting racial animus.’” McFadden v. Whole Foods Mkt. Grp., Inc., Civ. No. 19-

11 When Plaintiff was hired at J and G Spas, she had active massage therapy and cosmetology

licenses. (See Doc. No. 26-4 at 7.)

1103, 2021 WL 736899, at *7 (E.D. Pa. Feb. 25, 2021) (quoting Golod v. Bank of Am. Corp., 403

F. App’x 699, 703 n.2 (3d Cir. 2010)).

Comparator evidence is “evidence that defendant treated ‘similarly situated’ individuals

not within plaintiff’s protected class more favorably than it treated plaintiff.” Darby v. Temple

Univ., 216 F. Supp. 3d 535, 542 (E.D. Pa. 2016) (citing Moore v. City of Philadelphia, 461 F.3d

331, 340–41 (3d Cir. 2006)). “While ‘similarly-situated’ does not necessarily mean identically

situated, the plaintiff must nevertheless be similar in “all relevant respects.” Mangold v. PECO

Energy, Civ. No. 19-5912, 2021 WL 6072818, at *13 (E.D. Pa. Dec. 23, 2021) (citing Opsatnik v.

Norfolk S. Corp., 335 F. App’x 220, 222-23 (3d Cir. 2009)). To demonstrate discrimination using

comparator evidence, courts may “take[] into account factors such as the employees’ job

responsibilities, the supervisors and decision-makers, and the nature of the misconduct engaged

in.” Wilcher v. Postmaster Gen., 441 Fed. App’x 879, 882 (3d Cir. 2011). In the context of

workplace disciplinary or personnel actions, relevant factors include a

showing that the two employees dealt with the same supervisor, were subject to the

same standards, and had engaged in similar conduct without such differentiating or

mitigating circumstances as would distinguish their conduct or the employer’s

treatment of them.

McCullers v. Napolitano, 427 Fed. Appx. 190, 195 (3d Cir. 2011).

In its Motion for Summary Judgment, Defendant argues that O’Brien is not a proper

comparator to Plaintiff, and for this reason, Plaintiff does not set forth sufficient facts to satisfy the

fourth element. (See Doc. Nos. 26-2 at 16-20, 31 at 11.) Defendant argues that, because O’Brien

was an aesthetician, not a massage therapist like Plaintiff, O’Brien is not similarly situated to

Plaintiff as a comparator. (See Doc. No. 26-2 at 23-24.) In addition, Defendant contends that

O’Brien is not a proper comparator because she did not “stalk[], harass[], threaten[], or call[] a co-

worker a ‘fat b*tch’ or other derogatory names in the public areas of the Spa disrupting the

therapeutic atmosphere of the Spa.” (See id. at 18.) At the summary judgment stage, however,

this argument is unpersuasive.

Here, Plaintiff has presented evidence from which a jury could conclude that Defendant

treated a White employee more favorably than Plaintiff because of her race, thus giving rise to an

inference of discrimination. First, Plaintiff has proffered evidence that Plaintiff and O’Brien were

similarly situated as comparators. Plaintiff and O’Brien were overseen by the same supervisors at

the Northeast Philadelphia location, such as Barlow, the Regional Director of Operations, and

Snock, the General Manager. (See Doc. Nos. 26-4 at 5, 39; 26-5 at 5; 26-11.) Further, they were

subject to the same standards for conduct, such as Defendant’s Policies. (See id.) While Plaintiff

and O’Brien provided different services to customers at the Spa in their respective roles, a jury

could conclude that Plaintiff and O’Brien were “similarly situated” as fellow service providers at

the Spa in all relevant respects.

In addition, Plaintiff has shown that multiple genuine disputes of material fact exist

concerning the fourth element, discriminatory intent. For example, Plaintiff has presented

evidence from which it can be inferred that the conduct of Plaintiff and comparator O’Brien on

April 13, 2021 was sufficiently similar, yet O’Brien, who is White, was treated more favorably

after the incident than Plaintiff and Sidner, who are both women of color. Plaintiff alleges that all

three women had loud voices in the Spa during the verbal altercation. (See Doc. Nos. 26-4 at 30-

32; 30-2 at 5.) In addition, Plaintiff has offered evidence that both she and O’Brien used profanity

during the altercation. Plaintiff admits that she called O’Brien a “fat b*tch,”12 and Plaintiff asserts

12 While Plaintiff admits that she called O’Brien a “fat b*tch,” she maintains that the word “b*tch”

is not profanity and is “a female dog related to a wolf.” (See Doc. No. 26-4 at 32.)

that O’Brien told her to “shut the f*ck up.”13 (See Doc. Nos. 26-4 at 32-33, 30-2 at 5.) Plaintiff

also has brought forth other evidence that she and O’Brien were treated differently despite their

sufficiently similar behavior. For example, Plaintiff asserts that Defendant did not reach out to her

to obtain her account of the events that day, but did reach out to O’Brien. (See Doc. Nos. 26-5 at

17-18; 30-2 at 6.) This assertion is supported by the deposition testimony of Barlow, the Manager

of J and G Spas:

Q: And when Plaintiff said, "Or what?" to Ms. O'Brien and you said that

Ms. O'Brien took that as a threat, did you and/or the owners perceive

that as a threat as well?

Barlow: She stated that she felt that that was a threat. We were not there, so

we had to take her explanation of that as -- she said she felt threatened,

so we had to listen to that.

Q: Did you follow up with Plaintiff in regards to whether or not that was

a threat?

Barlow: We didn’t follow up with her in regards to that specific aspect of the

ordeal, no.

Q: Did you discuss anything with Plaintiff over the process of deciding

whether or not to terminate her?

Barlow: I believe she had reached out during the suspension process to the

owner. We did not necessarily reach back out besides keeping her

13 Plaintiff’s assertion that O’Brien told her to “shut the f*ck up” appears for the first time in her

Declaration contained in Plaintiff’s Response in Opposition to Defendant’s Motion for

Summary Judgment. (Doc. No. 30.) Defendant argues that this Declaration is a “sham

affidavit” that contradicts Plaintiff’s previous deposition testimony in an attempt to create a

genuine dispute of material fact after the fact. (See Doc. No. 31 at 3.) Viewing the facts in the

light most favorable to Plaintiff, the Declaration of Plaintiff merely supplements and does not

contradict Plaintiff’s deposition testimony. Plaintiff testified in her deposition that she “got

fired for using . . . profanity and doing this zero-tolerance policy in front of staff and clients,

and she did the same thing, and she still had a position, and I didn’t.” (Doc. No. 26-4 at 33.)

Plaintiff’s Declaration supplements this statement by providing a specific example of the

profanity allegedly used by O’Brien on April 13, 2021. (See Doc. No. 30-2 at 5.) Plaintiff and

Defendant disagree as to whether O’Brien also used profanity on April 13, 2021, in violation of

Defendant’s company Policies. This is just one example of the multiple genuine disputes of

material fact in this case.

aware that we are still investigating and that we would be in touch

with her shortly.

Q: So you didn't reach back -- none of you reached back out to Plaintiff

during the investigation?

Barlow: Not that I can recall.

(Doc. No. 26-5 at 17-18.) After Defendant’s investigation concluded, Defendant suspended

Plaintiff as an employee and soon thereafter terminated her for violating the Policies. (See Doc.

No. 26-4 at 37.) O’Brien was not terminated by Defendant for her involvement that day. (See id.

at 33.)

Therefore, there is a genuine dispute of material fact as to the nature of O’Brien’s conduct

on April 13, 2021, including whether O’Brien was raising her voice and using profanity in violation

of the company Policies.14 Because O’Brien is a White employee who did not suffer adverse action

after the incident, and the parties dispute whether O’Brien and Plaintiff engaged in similar conduct

during the verbal altercation that led to Plaintiff’s termination, a genuine dispute of material fact

exists concerning the fourth element, when viewing the facts in the light most favorable to Plaintiff.

2. Legitimate Non-Discriminatory Reason for Adverse Employment Decision

At the second stage of the McDonnell Douglas framework, an employer defendant can

meet its burden by producing evidence which, taken as true, would allow a reasonable jury to

conclude that there was a legitimate, non-discriminatory reason for the adverse employment

decision. Fuentes v. Perksie, 32 F.3d 759, 763 (3d Cir. 1994). Courts have explained that this is a

“relatively light” burden. Terrell v. Main Line Health, Inc., 320 F. Supp. 3d 644, 657 (E.D. Pa.

2018) (quoting Fuentes, 32 F.3d at 763). Significantly, at this step, “the employer need not prove

14 Additionally, the Court does not weigh conflicting deposition testimony at the summary

judgment stage because this would involve a credibility determination, which is solely within

the province of the jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

that the proffered reason actually motivated the termination decision . . . ” Id. Instead, “throughout

this burden-shifting paradigm[,] the ultimate burden of proving intentional discrimination always

rests with the plaintiff.” Fuentes, 32 F.3d at 763.

Here, Defendant has met its burden by offering a legitimate, non-discriminatory reason for

Plaintiff’s termination: Plaintiff’s violation of Defendant’s Policies. (See Doc. No. 26-2 at 20-21.)

Specifically, Plaintiff “harassed [Sidner] and loudly argued with her in the public hallway of the

Spa and also called the co-worker who tried to diffuse the situation ‘fat b[*]tch’ numerous times

and told her to ‘mind your own business,’ ‘or what’ in the public areas of the Spa disrupting the

therapeutic atmosphere of the Spa . . .” (Id.) This reason is supported by the statements of Barlow

at her deposition, who testified as follows:

Q: Specifically which part of the code of conduct did she violate?

Barlow: She harassed another employee, which I was able to see on camera.

So then she followed that employee into the Spa, continued to

harass; so harassment is against our policy. She was loud, disruptive,

argumentative. The clients that were getting massages at the time

heard this, and she was approached by another employee that works

for us who simply said to both individuals -- because you're not

asking about that other one just yet, if at all -- to take whatever

argument is happening outside. At that point, Ms. Heard responded

to Meredith O'Brien, which is the person that was trying to, you

know, de-escalate the situation, to “Mind your business, fat b[*]tch.”

And when -- I guess she, as in Ms. O'Brien, may have said, you

know, something. I don't know what she said after that; again, this

is a few years ago. I do recall statements stating that, you know,

Aminah had then said, “Or what?” Aggressively, as in, “what are

you going to do?” So the combination of the harassment, the

disruptive behavior and the complete, you know, disrespect and

actual discrimination towards the current -- or towards the employee

at that time led to her termination.

(Doc. No. 26-5 at 13-14.) Thus, this reason suffices as a legitimate, non-discriminatory reason for

Plaintiff’s termination.

3. Pretext for Discrimination

A genuine dispute of material fact also exists as to whether Defendant’s reason was

pretextual. When an employer offers a legitimate non-discriminatory reason for its action in the

second step of the McDonnell Douglas framework, any presumption of discrimination disappears.

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142-43 (2000). As a result, at the third

step of the McDonnell Douglas framework, a plaintiff is required to prove by a preponderance of

the evidence that the defendant employer’s proffered reason was “not its true reason[], but w[as] a

pretext for discrimination.” Jones, 198 F.3d at 410; see also Harp v. Se. Pennsylvania Transp.

Auth., No. CIV.A. 04-2205, 2006 WL 1517390, at *3 (E.D. Pa. May 31, 2006). A plaintiff may

establish pretext to defeat summary judgment through:

some evidence, direct or circumstantial, from which a fact-finder could reasonably

either ‘(1) disbelieve the employer's articulated legitimate reasons; or (2) believe

that an invidious discriminatory reason was more likely than not a motivating or

determinative cause of the employer's action.’

Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 347 (3d Cir. 2022).

Moreover, “[i]n the context of a summary judgment proceeding, the question is not whether

the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding

pretext.” Zelesnick v. Temple Univ. Health Sys., Inc., Civ. No. 19-5820, 2021 WL 201300, at *8

(E.D. Pa. Jan. 20, 2021). “The prima facie case and pretext inquiries often overlap. As [Third

Circuit] jurisprudence recognizes, evidence supporting the prima facie case is often helpful in the

pretext stage, and nothing about the McDonnell Douglas formula requires us to ration the evidence

between one stage or the other.” Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008).

Here, Plaintiff offers several forms of pretext evidence to defeat summary judgment. As

described supra, she has set forth evidence from which a jury could find that a White employee

was treated more favorably than Plaintiff, a minority employee, following the incident on April

13, 2021. Additionally, she has testified that she did not harass anyone, raise her voice, or use

profanity, directly contradicting Defendant’s legitimate, non-discriminatory reason for Plaintiff’s

termination. For example, Plaintiff testified in her deposition that she did not harass Sidner by

waiting for her in the parking lot and following her into the break room. Plaintiff testified:

Q: So didn't it start when you were waiting for her out in the

parking lot?

Plaintiff: I wasn't waiting for anyone in the parking lot. I was on my

break.

Q: Oh, you were on your break?

Plaintiff: I was on my break.

Q: You just happened to be outside when she pulled up to come

to work?

Plaintiff: Yes.

Q: And did you follow her into the Spa?

Plaintiff: No. My break was over, and I believe it was her start time.

Q: So then, you followed her in? Or she –

Plaintiff: I didn't follow anybody in. I went to work.

(Doc. No. 26-4 at 14.) To the contrary, Plaintiff asserts that she herself was harassed and threatened

by Sidner in the break room when Sidner showed a gun to Plaintiff, saying “I stay strapped” to

indicate that Sidner was carrying a firearm. (See id. at 17, 26, 30.) Plaintiff also testified that she

did not raise her voice during the verbal interaction with Sidner and O’Brien in the public area of

the Spa. (See id. at 16-18.) Plaintiff stated that:

Plaintiff: I was not aggressive, no. That's not my recollection.

Q: Did you raise your voice in the Spa that day arguing with Ms.

Sidner?

Plaintiff: No, I did not.

Q: You did not. Okay. Did she raise her voice?

Plaintiff: I don't know what a raised voice is. I don't believe she was raising

her voice.

. . .

Q: Well, you were there. So was Rose yelling at you?

Plaintiff: I don't believe she was yelling, no.

Q: Had she raised her voice?

Plaintiff: She was talking. She wasn't yelling, no.

Q: Did you make any gestures of any type of a threatening manner

towards her?

Plaintiff: No. I was very nonaggressive.

Q: You were nonaggressive. Okay. Did you bump into her in the break

room?

Plaintiff: No, I did not.

(Id. at 17.) Further, Plaintiff testified that she did not use profanity towards O’Brien because the

word “b*tch” is not profanity and is “a female dog related to a wolf.” (Id. at 32-33.)

Moreover, Plaintiff’s supervisor, Barlow, testified that Plaintiff was a “very good

employee.” (Doc. No. 26-5 at 8-9.) Barlow specifically stated that “[Plaintiff] had received . . .

accolades from her clients that she saw, and she did a good job.” (Id. at 9.) Barlow described

Plaintiff as “friendly, kind” and “professional.” (Id. at 10.) Barlow also noted that Snock, the

general manager of the Spa and Plaintiff’s direct supervisor, never had complained to her about

Plaintiff, “so [she] perceived [Plaintiff] as doing a good job.” (Id. at 11.) From all this evidence,

a jury could find that Defendant’s stated reasons for termination were pretextual.

In sum, the evidence discussed above creates a genuine dispute of material fact precluding

summary judgment. Accordingly, Defendant’s Motion for Summary Judgment on Plaintiff’s racial

discrimination claims under Title VII, Section 1981, and the PHRA in Counts I, II, and IV of the

Amended Complaint will be denied.

B. Disability Discrimination under the ADA and PHRA

In Counts III and IV, Plaintiff alleges that Defendant discriminated against her on the basis

of her disability in violation of the ADA and the PHRA.15 (See Doc. No. 24.) The ADA prohibits

an employer from “discriminat[ing] against a qualified individual on the basis of disability.” 41

U.S.C. §12112(a). Claims of disability discrimination under the ADA also are analyzed under the

burden-shifting framework set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973).16

1. Prima Facie Case of Disability Discrimination

To establish a prima facie case under the ADA, a plaintiff must show that she (1) is disabled,

(2) is a “qualified individual,”17 that is, qualified to perform the essential functions of the position

15 “The PHRA is basically the same as the ADA in relevant respects and Pennsylvania courts

generally interpret the PHRA in accord with its federal counterparts.” Rinehimer v. Cemcolift,

292 F.3d 375, 382 (3d Cir. 2002). Therefore, the Court will address both Plaintiff’s claims under

the PHRA and the ADA under the same legal framework.

16 There is no direct evidence of disability discrimination in this case. Therefore, the burden-

shifting analysis set forth in McDonnell Douglas applies. See Nelson v. Spark Therapeutics,

Inc., No. CV 23-843, 2024 WL 113758, at *2 (E.D. Pa. Jan. 10, 2024) (holding that the

plaintiff’s disability discrimination claims were governed by the burden-shifting framework of

McDonnell Douglas because no direct evidence of disability discrimination existed in the case).

17 Under the second prong, the Third Circuit has held that the “qualified individual” analysis is a

two-part inquiry:

First, a court must determine whether the individual satisfies the requisite skill,

experience, education and other job-related requirements of the employment

position that such individual holds or desires. Second, it must determine whether

the individual, with or without reasonable accommodation, can perform the

essential functions of the position held or sought.

with or without reasonable accommodation, and (3) suffered an adverse employment action

because of the disability. Tice v. Centre Area Transp. Auth., 247 F.3d 506, 512 (3d Cir. 2001).

Here, the first and second prongs are not in dispute. Defendant concedes that Plaintiff is

disabled due to her ankle injury and that she is qualified based on her status as a licensed massage

therapist with a certificate. (See Doc. No. 26-2 at 27.) Therefore, the only element at issue is

whether Plaintiff suffered an adverse employment decision because of her disability.

Defendant argues that “Plaintiff is unable to point to any fact of record that would support

a finding that there is a causal connection between the termination of employment and her

disability.” (Id. at 31.) In particular, Defendant contends that “[t]he undisputed facts of record

show that Plaintiff’s termination has nothing to do with her disability and has everything to do

with her workplace altercation in which she demonstrated aggressive, threatening behavior in front

of J&G clients and staff in direct violation of [Defendant’s] zero tolerance Code of Ethics and

Personal Behavior policies.” (Id. at 34.) In turn, Plaintiff argues that “Defendant discriminated

against [Plaintiff] on the basis of her disability because Defendant replaced [Plaintiff] with a non-

disabled individual.” (Doc. No. 30 at 28.)

Courts have held that when a plaintiff alleging disability discrimination presents evidence

that she was replaced by a non-disabled person, this evidence supports the third prong of causation

in the prima facie case. See, e.g., Labrice v. City of Philadelphia, No. CV 19-4377, 2024 WL

169657, at *4 (E.D. Pa. Jan. 16, 2024) (holding plaintiff had set forth prima facie case of disability

discrimination and satisfied the third element because he was replaced by a non-disabled person);

see also Sadare v. Bosch Auto. Serv. Sols. Inc., No. 19-CV-3083 (NEB/ECW), 2022 WL 2992788,

Deane v. Pocono Med. Ctr., 142 F.3d 138, 146 (3d Cir. 1998).

at *8 (D. Minn. July 28, 2022) (finding plaintiff had established the third element because he was

replaced by a non-disabled person); Rumph v. Randazzo Mech. Heating & Cooling, Inc., No. 17-

10496, 2018 WL 5845898, at *4 (E.D. Mich. Nov. 8, 2018) (finding plaintiff had established prima

facie case of disability discrimination because she asserted that she was replaced by a non-disabled

individual).

Here, there is a genuine dispute of material fact regarding the third element: whether

Plaintiff’s replacement was non-disabled. In her declaration, Plaintiff asserts that “[a]fter

Defendant terminated my employment because I requested an accommodation, it filled my

position with a White nondisabled employee.” 18 (Doc. No. 30-2 at 7.) However, Barlow’s

testimony conflicts with Plaintiff’s testimony. Barlow testified that she could not identify

Plaintiff’s replacement because “[t]here [wa]s no specific person . . . there's always vacancy . . .

[s]o even though Ms. Heard and Ms. Sidner were no longer employed with us, prior to that, there

were still at least eight openings for massage therapists to come on.” (Doc. No. 26-5 at 22.) As

stated above, the Court’s role at the summary judgment stage is not to make a credibility

determination between Plaintiff and Barlow’s deposition testimony. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, viewing the facts in the light most favorable to

Plaintiff, there is a genuine dispute of material fact as to the third element. And because there is a

genuine dispute of material fact on an element of the prima facie case, there is no necessity to

address the final two steps of McDonnell Douglas framework.19 In any event, because the

18 As discussed supra, Plaintiff’s declaration supplements her prior deposition testimony and is

relevant evidence for the purposes of the Motion for Summary Judgment.

19 See, e.g., Wilson v. Graybar Elec. Co. Inc., No. CV 17-3701, 2019 WL 2061607, at *1 (E.D.

Pa. May 9, 2019) (denying summary judgment because a genuine dispute of material fact

existed as to an element of the plaintiff’s prima facie case); see also Ryder v. Westinghouse

Elec. Corp., 879 F. Supp. 534, 537 (W.D. Pa. 1995) (denying summary judgment because a

genuine dispute of material fact existed as to an element of the prima facie case).

evidence supporting Defendant’s legitimate non-discriminatory reason for terminating Plaintiff’s

employment and a finding that this reason was pretextual is relevant to the analysis of Plaintiff’s

disability-related retaliation claim, the Court will proceed to the final two steps under McDonnell

Douglas.

2. Legitimate Non-Discriminatory Reason for Plaintiff’s Termination

Under the McDonnell Douglas framework, if a plaintiff sets forth a prima facie case of

disability discrimination, then the burden shifts to the employer defendant to proffer evidence of a

legitimate, non-discriminatory reason for the adverse employment action. See Anderson v.

Wachovia Mortg. Corp., 621 F.3d 261, 271 (3d Cir. 2010). A defendant satisfies this burden “by

introducing evidence which, taken as true, would permit the conclusion that there was a

nondiscriminatory reason for the unfavorable action.” Id.

Here, Defendant has offered evidence to show that there was a legitimate non-

discriminatory reason for Plaintiff’s termination: violation of Defendant’s Policies on April 13,

2021. (See Doc. No. 26-2 at 11.) Therefore, Defendant has satisfied its burden at the second stage

of the McDonnell Douglas framework.

3. Pretext for Disability Discrimination

In addition, a genuine dispute of material fact exists regarding whether Defendant’s stated

non-discriminatory reason was pretextual. If an employer proffers evidence to show a legitimate,

non-discriminatory reason for its adverse action, then the burden shifts to the plaintiff to prove by

a preponderance of the evidence that the defendant’s stated reason was pretext for disability

discrimination. Anderson, 621 F.3d at 271. As stated above, “[t]he prima facie case and pretext

inquiries often overlap. As [Third Circuit] jurisprudence recognizes, evidence supporting the

prima facie case is often helpful in the pretext stage, and nothing about the McDonnell Douglas

formula requires us to ration the evidence between one stage or the other.” C.A.R.S. Prot. Plus,

Inc., 527 F.3d at 370.20

Here, Plaintiff provides several forms of pretext evidence. First, the temporal proximity

between Plaintiff’s request for an accommodation and termination, coupled with other relevant

evidence, is suggestive of pretext. This would defeat summary judgment. In this regard, the Third

Circuit Court of Appeals has held that temporal proximity is one factor that can be used to establish

pretext at the third step of the McDonnell Douglas burden-shifting framework. See Proudfoot v.

Arnold Logistics, LLC, 629 F.App’x 303, 308 (3d Cir. 2015). For example, in Worthington v.

Chester Downs & Marina, LLC, the court held that the temporal proximity of three weeks between

the plaintiff’s disclosure of disability and termination was evidence that the defendant’s legitimate,

non-discriminatory reason was pretextual. No. CV 17-1360, 2018 WL 6737447, at *5 (E.D. Pa.

Dec. 21, 2018); see also McCarty v. Marple Twp. Ambulance Corps, 869 F. Supp. 2d 638, 651

(E.D. Pa. 2012) (finding a gap of less than three weeks between the defendant’s allusion to the

plaintiff’s disability-related symptoms and termination was sufficient evidence of pretext to defeat

summary judgment); Goodwin v. Univ. of Pennsylvania, No. CV 21-755, 2023 WL 8027306, at

*16 (E.D. Pa. Nov. 20, 2023) (finding temporal proximity of sixteen months between defendant’s

awareness of plaintiff’s disability and termination insufficient to defeat summary judgment).

20 As set forth above, a plaintiff may establish pretext to defeat summary judgment by showing

“some evidence, direct or circumstantial, from which a factfinder could reasonably either (1)

disbelieve the employer's articulated legitimate reasons; 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. This may include “weaknesses, implausibilities, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a reasonable

factfinder could rationally find them ‘unworthy of credence.’” Burton v. Teleflex, 707 F.3d 417, 427

(3d Cir. 2013) (quoting Fuentes, 32 F.3d at 764).

Here, approximately twenty (20) days passed between Plaintiff’s accommodation request

and her termination. (See Doc. Nos. 26-4 at 37; 26-5 at 12.) As the courts held in Worthington

and McCarty, such a short time span between Plaintiff’s request and her termination is suggestive

that Defendant’s legitimate, non-discriminatory reason was in fact pretextual.

Second, as discussed supra, Plaintiff has shown that a non-disabled comparator, O’Brien,

her co-worker, was not terminated following the April 13, 2023 incident, and Plaintiff, a disabled

employee, was terminated. The Third Circuit has held that when offering comparator evidence in

the context of workplace disciplinary actions, a plaintiff must show that the comparator has

“committed offenses of ‘comparable seriousness.’” Opsatnik, 335 F. App'x at 223. “[C]omparable

seriousness may be shown by pointing to a violation of the same company rule, or to conduct of

similar nature.” Wright v. Providence Care Ctr., LLC, 822 F. App'x 85, 93 (3d Cir. 2020). Just as

with Plaintiff’s race discrimination claims, O’Brien is also a comparator21 for the purposes of her

disability discrimination claim because she is a similarly situated, non-disabled employee, and, in

viewing the facts in the light most favorable to Plaintiff, was similarly involved in the April 13

incident which allegedly violated Defendant’s Policies. As set forth supra, Plaintiff has offered

evidence that O’Brien engaged in conduct of comparable seriousness to Plaintiff’s conduct on

April 13. In addition, Plaintiff has presented evidence disputing Defendant’s legitimate non-

discriminatory reason—Plaintiff testified that did not harass Sidner, raise her voice, or use

profanity. Plaintiff also has shown that she performed excellently in her role as a massage therapist

and Barlow gave her strong commendations.

21 As set forth above “[a] plaintiff can demonstrate pretext by presenting evidence that similarly

situated persons not within the plaintiff's protected class were treated more favorably by the

defendant employer.” Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F.3d 639, 645 (3d

Cir. 2008).

Thus, the evidence marshalled in discovery creates a genuine dispute of material fact that

precludes summary judgment on Plaintiff’s disability discrimination claim. Accordingly,

Defendant’s Motion for Summary Judgment on the disability discrimination claim under the ADA

and the PHRA in Counts III and IV of the Amended Complaint will be denied.

C. Failure to Accommodate Plaintiff’s Disability under the ADA

In Count III, Plaintiff alleges that Defendant failed to offer her a reasonable

accommodation for her disability. (See Doc. No. 24.) Specifically, Plaintiff alleges that Defendant

failed to offer her the accommodation of a rolling table or cart upon which to lean and place her

items while performing spa services for clients. (See Doc. Nos. 24 at 7; 30 at 20; 30-2 at 3.) Under

the ADA, failure to provide a reasonable accommodation is unlawful discrimination. 42 U.S.C. §

12112(b)(5)(A). When alleging a failure to accommodate claim, a plaintiff must show that: (1)

she was disabled, and the employer was aware of the disability; (2) she requested an

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

the plaintiff could have reasonably been accommodated. Armstrong v. Burdette Tomlin Mem’l

Hosp., 438 F.3d 240, 246 (3d Cir. 2006). When an employer is adequately notified of an

employee’s disability and the employee requests an accommodation for that disability, the onus is

on the employer to “engage the employee in the interactive process of finding accommodations.”

See id. at 246.22 Engaging in an “interactive process” requires reasonable efforts on the part of an

employer to assist the employee and to communicate with the employee in good faith. Megine v.

Runyon, 114 F.3d 415, 419-20 (3d Cir. 1997).

22 “Failure to accommodate claims are distinct from claims of disparate treatment and are not

governed by the shifting-burden scheme set out in McDonnell Douglas.” Bielich v. Johnson

& Johnson, Inc., 6 F. Supp. 3d 589, 617 (W.D. Pa. 2014).

Here, it is undisputed that Plaintiff is disabled and Defendant was aware of the disability,

satisfying the first prong of the prima facie test.23 It is also undisputed that Plaintiff requested the

cart accommodation around late March during her employment at J and G Spas. (See Doc. Nos.

26-4 at 16; 26-5 at 12.) However, a genuine dispute of material fact exists regarding whether

Defendant engaged in a good faith, interactive process with Plaintiff regarding her request for an

accommodation for her ankle injury. Plaintiff asserts that Defendant did not make a good faith

effort to accommodate her disability. (Doc. Nos. 30-2 at 4; 26-4 at 48.) In her Declaration, Plaintiff

asserts that after she requested the accommodation for her ankle injury in a meeting with a

supervisor, Defendant “never had any intention” of ordering the table or cart, and had not done so

up to the date of her termination. (Doc. No. 30-2 at 4.) To the contrary, Defendant asserts that it

was in the process of ordering the cart in good faith. (See Doc. No. 26-5 at 13.) Barlow testified

regarding the process of ordering the cart accommodation for Plaintiff:

Q: Do you know -- to the best of your knowledge, do you know who

would recall if Plaintiff made a request for a cart to assist her with the

hot stone modality?

Barlow: I would believe she would've asked Heather Snock.

. . .

Q: Ms. Barlow, who determined what kind of stool to even consider

ordering or getting for Plaintiff? Who is the decision-maker behind

this?

Barlow: There was no exact decision, but there was conversations between

myself -- mostly between Heather and Aminah, but we were asking

23 In the Motion for Summary Judgment, Defendant “does not dispute that Plaintiff had/has a

disability.” (Doc. No. 26-2 at 27.) Defendant also notes that “when she was hired, Plaintiff

stated she had been in a car accident and said she had a foot injury.” (See id.) Plaintiff testified

that she informed Defendant that she had limited mobility. (Doc. No. 26-4 at 20.) Further,

Barlow testified that she was aware of Plaintiff’s ankle condition. (See Doc. No. 26-5 at 12.)

Viewing the facts in the light most favorable to Plaintiff, the evidence shows that Defendant

was aware of Plaintiff’s injury and disability.

Aminah what she would need in order to perform her job better. So

we didn't really quite get to the ordering process as I was kind of

looking at different stools that would allow her to kind of navigate

around the table a little more easily than the current one. So there was

no stool ordered, and we were simply looking into what would be best

for her.

Q: And when you say "we" after having conversations with Ms. Heard,

that would be you and Ms. Heather Snook [sic]?

Barlow: Snock. Yes.

Q: Okay. And you stated that you were looking into different stools?

Barlow: Correct.

Q: What does that mean? Does that mean you were browsing the

internet?

Barlow: Correct.

Q: Do you recall what -- where you were browsing for these stools?

Barlow: Google.

Q: Did you ever land on -- and did you ever land on any particular

websites, or you just -- you stayed on Google?

Barlow: Stayed on Google. We were just looking for chairs. There was no

massage chair, so we were looking for stools in a massage treatment

room, and much of what we were receiving is similar to what we

already had in the Spa. So if that was not sufficient and

accommodating her, we were looking at just different stools

altogether.

Q: And you stated that, no -- again, no stool was ever ordered; is that

right?

Barlow: Correct.

(Id. at 12-13.)

Based upon the deposition testimony of Barlow and Plaintiff, a genuine dispute of material

fact exists regarding Defendant’s good faith engagement in the interactive process to accommodate

Plaintiff’s disability. Again, credibility determinations are not made at the summary judgment

stage. That task is reserved for the jury at trial. And the question of whether Defendant was

searching Google for three weeks in good faith or for the purposes of delaying to provide Plaintiff

with the cart accommodation warrants a credibility determination by the jury. Because the Court

will not decide who to believe, Barlow or Plaintiff, on whether Defendant engaged in the

interactive process in good faith, summary judgment on the Plaintiff’s failure to accommodate

claim will not be granted.

D. Disability-Based Retaliation under the ADA and PHRA

Finally, in Count III, Plaintiff alleges that she was retaliated against for requesting an

accommodation in violation of the ADA and the PHRA. (See Doc. No. 24.) As above, the

McDonnell Douglas burden-shifting framework also applies to retaliation claims under the ADA.24

See Campo v. Mid-Atl. Packaging Specialties, LLC, 564 F. Supp. 3d 362, 392 (E.D. Pa. 2021).

1. Prima Facie Case of Disability-Based Retaliation

To set forth a prima facie case of disability-based retaliation under the ADA, Plaintiff must

show that (1) she engaged in a protected activity; (2) she was subject to an adverse employment

action following or contemporaneous with the protected activity; and (3) a causal connection exists

between the protected activity and the adverse action. See Farrell v. Planters Lifesavers Co., 206

F.3d 271, 279 (3d Cir. 2000). The Third Circuit has held that requesting an accommodation for a

disability is protected activity under the ADA. See Shellenberger v. Summit Bancorp, Inc., 318

F.3d 183, 191 (3d Cir. 2003); Sulima v. Tobyhana Army Depot, 602 F.3d 177, 188 (3d Cir. 2010).

24 As noted above, “[t]he PHRA is basically the same as the ADA in relevant respects and

Pennsylvania courts generally interpret the PHRA in accord with its federal counterparts.”

Rinehimer v. Cemcolift, 292 F.3d 375, 382 (3d Cir. 2002). Therefore, the Court will use the

same analysis for both Plaintiff’s retaliation claims under the PHRA and the ADA.

Here, the undisputed evidence shows that (1) Plaintiff engaged in protected activity by

requesting an accommodation of a table or cart for her to lean on when performing certain services;

and (2) she was terminated on April 18, 2021 following this request. However, a genuine dispute

of material fact exists on the third element regarding a causal connection.

A reasonable factfinder could find that Plaintiff’s request for an accommodation is causally

connected to Defendant’s decision to terminate Plaintiff. Plaintiff requested the new cart

accommodation in late March. (See Doc. No. 26-5 at 12.) Plaintiff’s employment was terminated

on April 18, 2021. (See Doc. No. 26-5 at 37.) While Barlow, Plaintiff’s supervisor, replied that

she would “of course,” provide the table, her deposition testimony shows that there was no plan

set in place after three weeks to accommodate Plaintiff, just a vague reference to “googling.” (See

Doc. No. 26-2 at 30; 26-5 at 13.) Viewing the facts in the light most favorable to Plaintiff, a

reasonable factfinder could find that the close temporal proximity between Plaintiff’s

accommodation request and her termination, along with Barlow’s testimony, raises an inference

that Plaintiff was terminated in retaliation for her accommodation request. Additionally in her

Declaration, Plaintiff states that “[Defendant] never ordered a table for me, followed up with me

about ordering a table or cart and clearly had no intention of doing so.” (Doc. No. 30-2 at 4.)

Thus, it is proper for a jury to determine whether Plaintiff has established causation for the

purposes of her retaliation claim under the ADA. Although Defendant has provided, as with the

other claims, a legitimate non-discriminatory reason for Plaintiff’s termination (that Plaintiff

violated Defendant’s Policies), Plaintiff has raised a genuine dispute of material fact: whether

Defendant’s delay in accommodating her was based on an intent to ultimately terminate her in

retaliation for requesting the cart.

The evidence relating to Defendant’s non-discriminatory reason for termination and

evidence in support of pretext is duplicative of the analysis on Plaintiff’s other claims. Thus, an

analysis of the remaining steps under McDonnell Douglas with regard to Plaintiff’s disability-

related retaliation claim would be repetitive of the prior analysis of Plaintiff’s other discrimination

claims. For this reason, Plaintiff has raised a genuine issue of material fact as to whether

Defendant's reason for terminating her was pretextual and, consequently, summary judgment on

the ADA retaliation claim will be denied.

V. CONCLUSION

For these reasons, Defendant’s Motion for Summary Judgment (Doc. No. 26) will be

denied. An appropriate Order follows.