8-month gap was not sufficient to show causal nexus between the protected activity and the termination decision
How later courts described this case
- 8-month gap was not sufficient to show causal nexus between the protected activity and the termination decision
- “In a discrimination case, the issue before the court is not the fairness of an employer’s decision to terminate the plaintiff, but whether the record raises an issue of fact as to whether the decision was motivated by discriminatory animus.”
- Third Circuit held that a 3- month gap between the protected activity and the adverse action did not create an inference of causation
- “an employer is not required to accommodate an employee if the accommodation threatens the health or safety of that employee or other employees”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SUZANNE F. TIELLE, :
Plaintiff : CIVIL ACTION NO. 3:17-2417
v. : JUDGE MANNION
THE NUTRITION GROUP d/b/a :
NUTRITION, INC.,
:
Defendant
MEMORANDUM
Pending before the court, in this disability discrimination action filed by
plaintiff Suzanne F. Tielle, are cross-motions for summary judgment pursuant
to Fed.R.Civ.P. 56 filed by plaintiff, (Doc. 16), and her former employer,
defendant The Nutrition Group (“TNG”) d/b/a Nutrition, Inc., (Doc. 19). Based
upon the court’s review of the motion and related materials, the defendant’s
motion will be GRANTED with respect to all of plaintiff’s claims in her
amended complaint, (Doc. 14). The plaintiff’s motion for partial summary
judgment regarding her disability discrimination claims will be DENIED.
I. BACKGROUND
The plaintiff has brought the instant action under the Americans with
Disabilities Act, as amended (“ADAAA”), 42 U.S.C. §12131, et seq., as well
as under the Pennsylvania Human Relations Act, (“PHRA”), 43 P.S. §951, et
seq.1 She filed her original complaint on December 29, 2017. (Doc. 1). Plaintiff
then filed her amended complaint on June 29, 2018. (Doc. 14). Specifically,
in Count I, plaintiff raises her combined claims under the ADAAA and the
PHRA alleging disability discrimination, failure to accommodate and
retaliation. She alleges that she had a knee disability and was regarded as
being disabled. Plaintiff alleges that she could perform the essential functions
of her head cook position with an accommodation, namely, the use of a food
cart, but that TNG did not allow her to use the cart. Plaintiff alleges that she
was terminated on November 7, 2016 because of her disability. She also
alleges that she was terminated “in direct retaliation for having requested a
reasonable accommodation of being allowed to use a cart to complete her
work duties and because of her disability.”
After completing discovery, the plaintiff filed her motion for partial
summary judgment on December 6, 2018 with respect to her disability
discrimination claims under the ADAAA and the PHRA, pursuant to Fed. R.
1The “analysis of an ADA claim applies equally to a PHRA claim.”
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (citing
Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)). Although the
Pennsylvania legislature has failed to enact amendments to the PHRA similar
to the ADAAA, “because [plaintiff] is unable to prove that [TNG’s] reasons for
terminating her were pretextual under either the motivating or determinative
factor test, her ADA and PHRA claims can, and will, be considered together.”
Bielich v. Johnson & Johnson, Inc., 6 F.Supp.3d 589, 602 (W.D.Pa. 2014)
(citations omitted). As such, the court will discuss all of the plaintiff’s ADAAA
and PHRA claims together.
2
Civ. P. 56.2 (Doc. 16). TNG filed it motion for summary judgment on December
27, 2018 with respect to all of plaintiff’s claims in her amended complaint.
Both motions have been briefed and, statements of material facts and
responses as well as exhibits were filed.3
This court’s jurisdiction over the plaintiff’s federal claims is based on 28
U.S.C. §1331. The court can exercise supplemental jurisdiction over plaintiff’s
state law claims under 28 U.S.C. §1337.
II. MATERIAL FACTS4
The undisputed facts, as supported by the record, establish that the
2Since both parties state the correct standard of review applicable to a
summary judgment motion, the court will not repeat it. Suffice to say that to
prevail on summary judgment, the moving party must affirmatively identify
those portions of the record which demonstrate the absence of a genuine
issue of material fact and, that the court must consider all evidence and
inferences drawn therefrom in the light most favorable to the non-moving
party. See Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
3Although the parties originally filed portions of their documents under
Seal, the court denied TNG’s motions to file the documents under Seal and
they were re-filed without containing any redacted portions. On August 1,
2019, plaintiff re-filed her motion for partial summary judgment, (Doc. 45), as
well as her brief and supporting documents. On August 6, 2019, TNG re-filed
its motion for summary judgment, (Doc. 49), as well as its brief and
supporting documents.
The court directed the clerk of court to substitute the unredacted filings
of the parties for the redacted filings and to term the re-filed documents so
that all of the filing dates reflect the timely dates on which the documents
were originally filed. As such, the Docs. 45 and 49 motions were termed since
they became the Docs. 16 and 19 original motions.
4The court notes that it only includes material factual statements with
support in the record. Legal arguments and conclusions are not included.
3
plaintiff worked from 1986 until 2009 for Aramark, a food service management
company, as Kitchen Lead/Head Cook in the Old Forge School District. In
2009, TNG became the food service management company in the district and
plaintiff became an employee of TNG working in her same position.
During her employment at the Old Forge School District, plaintiff was a
member of the Service Employees International Union (“SEIU”).
Plaintiff’s job duties with TNG, included the following: 1) being the lead
person in the kitchen to supervise other food service workers; 2) maintaining
all production records according to PDE, HACCP, and Nutrition Group; 3)
ordering and receiving all bread; 4) ensuring that time sheets were filled out
by employees; 4) recording of inventory; and 5) assisting FSD with food cost
controls and food quality issues. Plaintiff read and agreed to her job duties.
Based on her job duties, plaintiff was allowed to use one of the food carts to
transport food, kitchen items and supplies in the kitchen and around the
school.
Plaintiff testified that she was in charge of nine other employees. She
stated that they cooked and served breakfast, and then prepared lunch. After
the meals, they would clean up the kitchen and put the food away.
Plaintiff testified that she injured her right knee in 2005 and tore her
meniscus, and wore knee braces. Plaintiff also stated that she developed very
bad arthritis in her knee. She stated that she was prescribed Naproxen for her
knee, that she had cortisone shots every year since her injury and, that she
4
has a noticeable impairment in her ability to walk. When plaintiff became an
employee of TNG in 2009, she told Patricia Baresse, then Regional Manager
and current Director of Operations for TNG, and other TNG’s representatives
that she had a knee injury and that she had trouble with her legs, and she
described herself as “disabled.” However, at this time, plaintiff did not provide
TNG with any documentation showing that she was disabled. Nor did she
indicate that she was unable to perform her job responsibilities without an
accommodation, and she did not request an accommodation.
In August 2011, Baresse and other representatives of TNG observed
plaintiff routinely asking her co-workers to retrieve kitchen items for her, and
they became concerned about whether plaintiff could perform all of her job
duties. TNG requested plaintiff to have her doctor review her job description
and determine whether she was able to perform the duties of her position.
Plaintiff’s doctor, Dr. Daniel Kazmierski, reviewed her job description and
wrote a note stating, “okay for patient to perform said duties.” Dr. Kazmierski
did not indicate that plaintiff needed an accommodation to perform any of her
job duties. Plaintiff then gave Dr. Kazmierski’s note to TNG in August 2011.
For months during 2014, Baresse and other representatives of TNG saw
plaintiff using a kitchen food cart to support her weight and to assist her with
walking in the kitchen, to and from the restroom, to and from the back door of
the school building, and to other areas of the school. Plaintiff was also
observed placing the food cart by the back door of the school when she left
work for the day and then use the cart to assist her with walking when she
5
arrived at the school the next day.5
The food carts are used to transport food as well as equipment and
supplies in the kitchen and throughout the school. Food carts are not intended
to assist a person with walking since they can tip if supporting a person’s
weight. Further, there is no dispute that a food cart is not a medical device.
TNG determined that plaintiff’s use of the food cart to assist her with
walking was unsafe and in violation of TNG’s safety policy since it put the
safety of plaintiff and others at risk.
TNG has an Employee Safety Manual and Safety Policies. TNG’s Safety
Manual and its safety policies require that all its employees perform their
duties in a safe manner to prevent injury to themselves and others. Plaintiff
was trained on TNG’s safety policies and she was given a copy of the
Employee Safety Manual. She read, understood and accepted all of TNG’s
safety policies. TNG’s Safety Manual directed employees to use a “cart” for
specific tasks and instructed to use a cart “[i]f a load is too heavy or bulky.”
The Manual did not provide that food carts should be used to support an
employee’s weight. In fact, plaintiff admitted that the food cart was not
intended to be used to assist someone with walking or as a crutch. Further,
while plaintiff admitted that the food cart was intended to transport food and
other kitchen items, she believed that it was “not going to hurt anything [or
cause a problem] if a person has any type of [medical] issue [and] uses it.”
5TNG’s Ex. 15 is a photograph of one of the food carts which plaintiff
admitted she used.
6
Since plaintiff was repeatedly observed using a food cart to support her
weight and to assist her with walking, on June 13, 2014, Baresse, Karen
Baranowski, TNG cashier and the Union Shop Steward for SEIU, Tracy
Drank, TNG’s Food Service Director, Kim Yost, SEIU representative, and Ian
O’Brien, TNG’s general counsel, met with plaintiff and told her that using the
food cart for these purposes was unsafe because it was not intended for such
use. Plaintiff was also advised that using the cart in the stated manner
violated TNG’s safety policy because it was a safety risk. As such, plaintiff
was specifically told that she could not use the food cart while at work to
support her weight or for assistance for walking. Plaintiff then requested to
use a cane at work to assist her when walking and TNG granted her request.
In the meeting, plaintiff avers that she requested to use the food cart as
an accommodation to help her walk due to her knee disability. However,
according to Baresse, Baranowski and Drank, plaintiff did not request to use
the food cart in the meeting to assist her with walking.6 In any event, if plaintiff
did in fact request to use the food cart as an accommodation to help her with
walking, TNG would have denied the request due to safety concerns. Further,
TNG allowed plaintiff at all times to continue to use the food cart for its
intended purpose of transporting food, kitchen equipment and supplies in the
kitchen and around the school.
Despite the fact that TNG had already granted plaintiff’s request to use
6The court denied plaintiff’s motion to strike the Affidavits of Baresse,
Baranowski and Drank.
7
a cane at work at the June 13, 2014 meeting, she contacted her physician, Dr.
Kazmierski, on July 24, 2014 and requested a note stating that she could work
but required the assistance of a cane. Plaintiff then gave TNG a note from Dr.
Kazmierski stating that she “requires assistance of a cane when walking due
to a knee injury. This is recommended by me for assistance when working.”
TNG again allowed plaintiff to use a cane at work and expected that she
would indeed use the cane while at work.
Thereafter, plaintiff did in fact use her cane to assist her at work for
some time. At no time did plaintiff state that she was unable to perform her
duties with her cane or that she needed any other accommodation.
According to plaintiff, in June 2015, Baresse asked her if she was
coming back to work for the Fall school term and plaintiff replied “yes, why.”
Baresse then told plaintiff that she “better be able to walk better and get [her]
own stuff.” Plaintiff responded that “this is as good as I am going to get.”
Baresse denied making the alleged statements and denied making any
statements to plaintiff regarding her knee or her ability to walk and retrieve
items in the kitchen. Regardless, plaintiff then returned to work for TNG at the
Old Forge School in the Fall of 2015 and she continued to work there until
November 2016.
When plaintiff returned to work in the Fall of 2015, Baresse and other
representatives of TNG again observed plaintiff using the food cart to assist
her with walking and to support her body weight in place of her cane.
On December 17, 2015, plaintiff received two Employee Warning
8
Notices for Unsatisfactory Performance and conduct that interfered with work
or school district operations. The Employee Warning Notices were issued to
plaintiff regarding the meetings that were held with her to address her
continued improper use of the food cart in a manner which violated TNG’s
Safety Policy.
On January 28, 2016, Baresse along with representatives of TNG,
namely, Susan Benczkowski, TNG’s Regional Manager, Yost, Baranowski,
and Drank, again met with plaintiff to discuss her continued use of the food
cart to help her walk at work. Plaintiff was told that she was again seen using
the food cart to assist her with walking and she was reminded that using the
food cart for such purpose was unsafe and violated TNG’s safety policy.
Specifically, plaintiff was told that her use of the food cart put her safety and
the safety of others at risk, and that she could not use the food cart to help her
walk or support her weight. Further, plaintiff was advised that since TNG
granted her request to use her cane at work, she should use the cane and not
the food cart.
Additionally, at the January 28, 2016 meeting, plaintiff did not contend
that she was unable to perform her duties with her cane and she did not state
that she needed any additional accommodation at work. Plaintiff also
apologized for using the food cart in an unintended manner and, she assured
TNG’s representatives that she would use her cane in the future and not the
food cart to assist her with walking. Finally, plaintiff was told by TNG that if
she continued to use the food cart to assist her with walking in violation of the
9
TNG’s safety policy, she would be terminated.
In her deposition, plaintiff testified that she used the food cart “for
assistance to get around the kitchen.” She also testified that “it would be
foolish for me to walk with my cane to then go get the cart to then go get what
I was going to do, if I was going to get food or bring things to the dish room.
So that cart was with me most of the time.”
Despite the repeated warnings and meetings, despite the fact that TNG
granted plaintiff’s requested accommodation to use her cane, as
recommended by her doctor, and despite the fact that plaintiff agreed to use
her cane and not the food cart for walking, plaintiff was once again observed
by several representatives of TNG using the food cart to assist her with
walking while at work. In particular, Baresse saw plaintiff in the walk-in freezer
without her cane and using the food cart for support. According to Baresse
and Barnowski, plaintiff was holding onto a freezer shelf with one hand and
onto an empty food cart located outside of the freezer with her other hand to
support her weight.
Consequently, another meeting with plaintiff was held on November 7,
2016. Present at the meeting were Baresse, Benczkowski, Yost, and
Baranowski. During this meeting, plaintiff did not deny using the food cart to
help her with walking and to support her weight. In fact, she admitted,
“sometimes it’s just quicker to use the cart instead of the cane.” Plaintiff also
testified that at some point during the meeting she recalls Baresse saying
“something about a liability”, but she could not remember exactly what was
10
stated. However, Baresse explained to plaintiff that “using the food cart to
support her weight and assist her with walking was a liability because it was
unsafe.” Baresse denied making any comment that plaintiff’s disability was a
liability. Further, although plaintiff testified Baresse told her that she was not
allowed to go back into the kitchen and that Baresse “in fact, forbade her” to
work, Baresse denied making these statements. Rather, Baresse stated she
informed plaintiff that she could no longer allow her to use the food cart to
assist with her walking because of safety concerns and that TNG was
terminating her employment. In fact, plaintiff also testified that it was her belief
that she was terminated because of her use of the food cart.
At the end of the meeting, TNG terminated plaintiff’s employment based
on her continued use of the food cart in violation of TNG’s safety policy and
TNG’s directives not to use the cart to assist her walking.
III. DISCUSSION
Plaintiff alleges that TNG terminated her based on her known and
perceived knee disability in violation of the ADAAA and the PHRA. She also
alleges that TNG failed to provide a reasonable accommodate for her
disability and, that TNG retaliated against her by terminating her in November
2016 due to her June 2014 request for a reasonable accommodation.
A. Legal Standard for Plaintiff’s Claims
The burden-shifting framework in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), applies to the plaintiff’s retaliation and discrimination
11
claims under the ADAAA and the PHRA in cases, like the instant one, where
the plaintiff relies on circumstantial evidence.7 See Gavurnik v. Home
Properties, L.P., 227 F.Supp.3d 410, 416 (E.D.Pa. 2017), aff’d. 712 Fed.Appx.
170 (3d Cir. 2017); Williams v. Phil. Hous. Auth. Police Dept.,380 F.3d 751,
760 (3d Cir. 2004) (citation omitted); Wells v. Retinovitreous Associates, Ltd.,
702 Fed.Appx. 33, 35 (3d Cir. 2017).
The court in Decker v. Alliant Technologies, LLC, 871 F.Supp.2d 413,
425 (E.D.Pa. 2012), explained the McDonnell Douglas burden-shifting
framework as follows:
If the plaintiff establishes a prima facie case of [retaliation or]
discrimination, then an inference of discriminatory motive arises
and the burden shifts to the employer to articulate a legitimate,
[nonretaliatory] nondiscriminatory reason for the adverse
employment action. See Salley v. Circuit City Stores, Inc., 160
F.3d 977, 981 (3d Cir. 1998). If the employer does so, then the
burden shifts back to the plaintiff to show that the employer’s
proffered reason is merely pretext for intentional discrimination.
Makky, 541 F.3d at 214. The “ultimate burden of persuading the
7Contrary to the plaintiff’s contention, the court does not find direct
evidence of discrimination based on the alleged June 2015 incident,
described above, in which plaintiff claims that Baresse asked her if she was
coming back to work for the Fall 2015 school term. Even though Baresse was
a decision maker, the law is clear that statements made by a decision maker
“unrelated to the decisional process itself are not direct evidence.” Glanzman
v. Metropolitan Management Corp., 391 F.3d 506, 513 (3d Cir. 2004) (citation
omitted). Here, the undisputed evidence shows that after Baresse’s alleged
statements, plaintiff did in fact return to work for TNG in the Fall of 2015, she
was allowed to use her cane at work, and she continued to work for over one
year until she was terminated in November 2016. Thus, the alleged
statements of Baresse, made well before plaintiff’s termination, were not
timely related to the decisional process and are not direct evidence of
discrimination.
12
trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.” See Williams v.
Phila. Housing Auth. Police Dep’t, 380 F.3d 751, 759 n. 3 (3d Cir.
2004) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 252–53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
“The burden to establish a prima facie case is a not an onerous one, but
a prima facie case can allow a court ‘to eliminate the most obvious, lawful
reasons for the defendant’s action.’” Id. (citing Pivirotto v. Innovative Sys.,
Inc., 191 F.3d 344, 352 (3d Cir. 1999).
B. Disability Discrimination Claims
Plaintiff claims TNG violated the ADAAA since she was terminated due
to an actual or perceived impairment, namely her knee disability. She
contends that she requested a reasonable accommodation from TNG to assist
her walking at work when she asked for permission to use the food cart.
Plaintiff maintains that TNG then retaliated against her after she requested the
accommodation.
The ADA prohibits discrimination “against a qualified individual on the
basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42
U.S.C. §12112(a). To establish a prima facie case of disability discrimination
under the statute, the plaintiff must show: “(1) [s]he is a disabled person within
the meaning of the ADA; (2) [s]he is otherwise qualified to perform the
essential functions of the job, with or without reasonable accommodations by
13
the employer; and (3) [s]he has suffered an otherwise adverse employment
decision as a result of discrimination.” Taylor v. Phoenixville School Dist., 184
F.3d 296, 306 (3d Cir. 1999) (citing Gaul v. Lucent Technologies, 134 F.3d
576, 580 (3d Cir. 1998)). The ADA defines a “disability” with respect to an
individual as: “(a) a physical or mental impairment that substantially limits one
or more major life activities of such individual; (b) a record of such impairment;
or (c) being regarded as having such an impairment.” 42 U.S.C. §12102(1).
Thus, to establish a “disability” under the ADA, plaintiff must prove that
she is substantially limited in performing a major life activity. See 42 U.S.C.
§12102. The ADA Amendments Act of 2008 (“ADAAA”) expanded the scope
of disability and construed the definition of disability in favor of broad
coverage. See Kieffer v. CPR Restoration & Cleaning Service, LLC, 200
F.Supp.3d 520, 533-34 n.9 (E.D.Pa. 2016) (court noted that the ADAAA
lowered the standard for finding a disability under the ADA). Nonetheless, the
ADAAA’s definition of “disability” still remains as “a physical or mental
impairment that substantially limits one or more major life activities of such
individual.” 42 U.S.C. §12102(1). “[M]ajor life activities include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working.” 42
U.S.C. §12102(2)(A). Further, with respect to the “‘physical or mental
impairment’ prong of the definition of a disability, EEOC regulations clarified
that ‘the determination of whether an impairment substantially limits a major
14
life activity requires an individualized assessment’ and ‘should require a
degree of functional limitation that is lower than the standard for ‘substantially
limits’ applied prior to the ADAAA.” Riley v. St. Mary Medical Center, 2014
WL 220734729, *2 (E.D.Pa. May 28, 2014) (citations omitted). However, “[n]ot
every impairment will constitute a disability” within the meaning of the ADA.
Koller v. Riley Riper Hollin & Colagreco, 850 F.Supp. 2d 502, 513 (E.D.Pa.
2012). Under the ADAAA, the qualifying impairment must still create an
“important” limitation. Id. Further, in order to establish a prima facie case of
disability discrimination under the ADAAA, the burden remains on a plaintiff
to establish a causal nexus between her disability and the adverse
employment action. Jakomas v. City of Pittsburgh, 342 F.Supp.3d 632, 650
(W.D.Pa. 2018).
Here, the plaintiff’s claim of disability discrimination in her amended
complaint is based on an actual disability with respect to her knee injury as
well as a “regarded-as” disability. TNG argues that it is entitled to summary
judgment in this disparate treatment case because the plaintiff has not offered
sufficient evidence to establish a prima face case of discrimination. TNG
concedes, for purposes of its instant motion, that plaintiff has a disability, that
she is a qualified individual with a disability, and that her termination was an
adverse employment decision. However, TNG contends that plaintiff cannot
prove that its action in terminating her was taken because of her disability and
that there is no evidence showing that her termination was a pretext for
discrimination. TNG also argues that the plaintiff fails to show that its
15
legitimate reason for terminating her, i.e., her continued use of the food cart
to assist her walking in violation of its directive, was a pretext for
discrimination. The court finds that plaintiff has failed to meet her burden of
establishing that her termination was causally related to her disability or to her
request for an accommodation.
Plaintiff has failed to present sufficient evidence to show a causal nexus
between her knee disability and her termination. No doubt that “mere
awareness of a disability does not create an inference of discrimination.”
Drummer v. Trustees of University of Pennsylvania, 286 F.Supp.3d 674, 683
(E.D.Pa. 2017) (citation omitted). Rather, a plaintiff must “adduce sufficient
evidence demonstrating that she suffered any adverse action ‘as a result of’
or ‘because of’ her disabilities.” Moore v. CVS Rx Services, Inc., 142
F.Supp.3d 321, 346 (M.D.Pa. 2015). “ADA [p]laintiffs must prove that they
were treated differently based on the protected characteristic, namely the
existence of their disability.’” Id. (quoting CG v. Pennsylvania Dep’t of Educ.,
734 F.3d 229, 236 (3d Cir. 2013)). “This requires a showing that the disability
‘played a role in the employer’s decisionmaking process and that it had a
determinative effect on the outcome of that process.’” Id. (citing New
Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 301 n. 4 (3d
Cir. 2007)).
Plaintiff worked for TNG from 2009 through November 2016, and she
made TNG aware of her knee disability when she began to work for it. Plaintiff
presented evidence to show that she had a knee disability which limited her
16
ability to walk. Nonetheless, as detailed above, the evidence shows that
during plaintiff’s employment with TNG she was repeatedly observed using
the food cart to assist her walking while at work. The evidence also shows that
plaintiff was repeatedly told not to use the food cart to assist her walking and
that such use of the cart was dangerous and violated TNG’s safety policy.
Plaintiff was not prevented from using the food cart for its proper purpose of
transporting items in the kitchen and around the school. Plaintiff was then
forewarned, prior to her termination, that if she continued to use the food cart
in the stated manner, she would be terminated. Also, plaintiff was provided a
reasonable accommodation for her knee disability when TNG allowed her to
use her cane to assist her walking and performance of her kitchen duties, as
her own doctor recommended.
At the meetings TNG conducted after plaintiff was observed using the
food cart to walk, plaintiff agreed not to use the food cart in the prohibited
manner. However, she continued to use the food cart to assist her walking
while at work. She was repeatedly observed by Baresse and other TNG
representatives using the food cart to walk. In fact, during the meetings, she
did not deny using the food cart for walking, and she stated that the cart was
“quicker” to use despite her knowledge that using the cart to help her walk
was in clear violation of TNG’s directives. In her deposition, plaintiff admitted
that she was terminated “because of the cart.”
Further, although plaintiff could not remember the exact statement, she
claims that during the November 2016 final meeting, Baresse mentioned
17
“something about a liability” suggesting that Baresse was referring to her
disability as a liability. Plaintiff also indicated that she was not sure whether
Baresse was referring to her as a liability or the use of the cart. However,
Baresse clarified her statement when she averred that she told plaintiff “using
the food cart to support her weight and assist her with walking was a liability
because it was unsafe.” Indeed, this is precisely what TNG representatives
repeatedly told plaintiff during the earlier meetings. In short, there is simply no
evidence that plaintiff’s disability had any connection to TNG’s decision to
terminate her.
Thus, plaintiff has failed to establish a prima face case of disability
discrimination since she has not presented sufficient evidence as to the third
element, i.e., her termination was the result of her disability. Moreover,
assuming arguendo that plaintiff did establish a prima face case of disability
discrimination, TNG has presented an abundance of evidence showing that
it had a legitimate non-discriminatory reason for plaintiff’s termination.
In Howell v. Millersville Univ. of PA., 283 F.Supp.3d 309, 323, (E.D.Pa.
2017), the court explained:
If a plaintiff establishes a prima facie case, “the burden of
production (but not the burden of persuasion) shifts to the
defendant, who must then offer evidence that is sufficient, if
believed, to support a finding that the defendant had a legitimate,
nondiscriminatory reason for the adverse employment decision.”
[Kautz v. Met–Pro Corp., 412 F.3d 463, 465 (3d Cir. 2005)]
(internal citations and quotations omitted). An employer need not
prove, however, that the proffered reasons actually motivated the
employment decision. Id. If a defendant satisfies this burden, a
plaintiff may then survive summary judgment by submitting
18
evidence 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. Id.
See also Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009).
Thus, the court turns to the second step of the McDonnell Douglas
framework. “At the second step of the McDonnell Douglas framework, the
employer satisfies its ‘relatively light’ burden of production by introducing
evidence which, taken as true, would permit a conclusion that there was a
nondiscriminatory reason for its employment decision.” Terrell v. Main Line
Health, Inc., 320 F.Supp.3d 644, 657 (E.D.Pa. 2018) (citing Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).
Here, TNG has met its burden by submitting a substantial amount of
evidence that its proffered reason for terminating the plaintiff, i.e., her
repeated use of the food cart to assist her with walking at work in violation of
TNG’s directive and safety policy, was a legitimate nondiscriminatory safety
reason for plaintiff’s termination.
Next, the court considers pretext. The plaintiff must demonstrate that
TNG’s proffered reason was a pretext for disability discrimination.
As such, “the burden shifts back once more to the plaintiff to show, by
a preponderance of the evidence, that the employer’s proffered legitimate,
nondiscriminatory reason was pretextual.” Terrell, 320 F.Supp.3d at 658
(citation omitted). The plaintiff must now prove pretext by either discrediting
19
defendant’s proffered reason for her termination or showing that disability
discrimination was more likely than not the “but for” cause of her termination.
In order to show pretext, “the employee must point to 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 . . . determinative
cause of the employer’s action.”8 Fuentes, 32 F.3d at 763. In order to
“discredit the employer’s proffered reason, however, the plaintiff cannot simply
show that the employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the employer, not
whether the employer is wise, shrewd, prudent or competent.” Fuentes, 32
F.3d at 765. “Rather, the non-moving plaintiff must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence’, [Ezold v. Wolf,
Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)], and hence
infer ‘that the employer did not act for [the asserted] non-discriminatory
reasons.’” Id. (citing Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638
(3d Cir. 1993)). Further, “the plaintiff ‘must show[ ] not merely that the
employer’s proffered reason was wrong, but that it was so plainly wrong that
8“The determinative factor, or ‘but for,’ test applies to [plaintiff’s]
disability claims”, both her disability discrimination claims and her retaliation
claims. Bielich, 6 F.Supp.3d at 605 n. 2 (citations omitted).
20
it cannot have been the employer’s real reason.’” Proudfoot v. Arnold
Logistics, LLC, 629 Fed.Appx. 303, 307 (3d Cir. 2015) (citation omitted). See
also Andersen v. Mack Trucks, Inc., 118 F.Supp. 3d 723, 747 (E.D.Pa. 2015)
(“In a discrimination case, the issue before the court is not the fairness of an
employer’s decision to terminate the plaintiff, but whether the record raises an
issue of fact as to whether the decision was motivated by discriminatory
animus.”) (citation omitted).
TNG argues that the plaintiff has failed to establish by a preponderance
of the evidence that its proffered legitimate, non-discriminatory reason for her
termination was pretextual. TNG points out that its evidence shows the
plaintiff was given repeated warnings about using the food cart to assist her
with walking and, that she was given several chances to conform her conduct
to comply with TNG’s safety policy and to use her cane, but that she
continually failed to follow TNG’s directives by using the cart to walk and help
support her weight. The court finds that the facts discussed above support
TNG’s contentions. Simply put, plaintiff fails to “point[ ] to evidence from which
a factfinder could reasonably conclude that discrimination was the more likely
cause of h[er] discharge.” Fuentes, 32 F.3d at 763.
The plaintiff’s evidence “would [not] cause a reasonable factfinder to find
the defendant’s proffered reason ‘unworthy of credence.’” Burton v. Teleflex
Inc., 707 F.3d 417, 430 (3d Cir. 2013). Thus, the court finds that the plaintiff
has failed to meet her burden by establishing pretext under the first Fuentes
method.
21
The court in Terell, 320 F.Supp.3d at 658-59, discussed the second
method of establishing pretext and stated:
Under the second prong of Fuentes, a plaintiff may establish
pretext “by presenting evidence ‘with sufficient probative force’ so
as to allow the factfinder to ‘conclude by a preponderance of the
evidence that [her disability] was a motivating or determinative
factor.’” Willis, 808 F.3d at 645 (quoting Simpson, 142 F.3d at
644-45). This proof may consist of evidence that: “(1) the
defendant previously discriminated against the plaintiff; (2) the
defendant discriminated against others within the plaintiff’s
protected class; or (3) the defendant has treated similarly situated
[persons not within the protected class] more favorably.” Id. With
regard to workplace discipline, the relevant factors to consider in
determining whether individuals are “similarly situated” may
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 the conduct or their
employer’s treatment of them.’” McCullers v. Napolitano, 427
Fed.Appx. 190, 195 (3d Cir. 2011) (quoting Radue v.
Kimberly–Clark Corp., 219 F.3d 612, 617–18 (7th Cir. 2000)).
There is no evidence that TNG previously discriminated against the
plaintiff based on her disability. In fact, TNG granted plaintiff’s requested
reasonable accommodation to use her cane at work when she first requested
it. However, plaintiff continually used the food cart to assist her walking after
being repeatedly directed not to use it for that purpose. Nor is there any
evidence that TNG discriminated against other persons within the plaintiff’s
protected class or within another protected class. Additionally, no evidence
was presented that TNG treated more favorably similarly situated persons not
within the protected class. Although plaintiff now contends that “other
22
non-disabled workers were allowed to use the food cart to complete their work
duties; and therefore, treated better than her”, she testified in her deposition
that “other non-disabled workers” used the food cart to move items, such as
food, pots and pans, but they did not use the food cart to assist them with
walking in the kitchen. Here, the evidence shows that plaintiff was also
allowed to use the food cart to move items in the kitchen and to use it in
accordance with its intended purpose.
The court finds that the plaintiff’s evidence fails to create a genuine
issue of material fact to show that TNG’s nondiscriminatory reason for her
termination was pretextual. No reasonable jury could find that the reasons for
plaintiff’s termination “were a fabrication or that discrimination [due to her knee
disability] was more likely than not the motivating or determinative cause of
plaintiff’s termination.” Willis, 2 F.Supp.3d at 606.
Thus, since plaintiff’s evidence is insufficient to show disability
discrimination by TNG under the ADAAA, the court will grant TNG’s summary
judgment motion with respect to this claim and deny plaintiff’s motion. Since
the same standard applies to plaintiff’s disability discrimination under the
PHRA, TNG is also entitled to summary judgment on this state law claim as
well. Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 142 (3d Cir. 2011) (“The
analytical framework used to evaluate a disability discrimination claim under
the PHRA is effectively indistinguishable from that under the ADA, thus
allowing courts to dispose of both ADA and PHRA claims on the same
grounds.”); Willis, 2 F.Supp.3d at 604 n. 10 (“Courts within this Circuit interpret
23
the ADA and PHRA coextensively.”) (citation omitted).
C. Retaliation Claims
Under the ADA, employers are prohibited from retaliating against their
employees for requesting accommodations for disabilities. Sulima v.
Tobyhanna Army Depot, 602 F.3d 177, 188 (3d Cir. 2010). “To establish a
prima facie case of unlawful retaliation in violation of the ADA, a plaintiff must
show that he engaged in protected activity, that he suffered adverse action
either after or contemporaneous with the protected activity, and that there was
a causal connection between the employee’s protected activity and the
employer’s adverse action.” Canevari v. Itoh Denki U.S.A., Inc., (M.D.Pa. July
24, 2017) 2017 WL 4080548, *13 (citations omitted), adopted by 2017 WL
4077394 (M.D.Pa. Sep. 14, 2017). “An employee engages in protected activity
when he requests a reasonable accommodation for his disability under [ ] the
ADA [ ].” Id. (citation omitted). An employee does not have to show that she
was disabled to assert a retaliation claim under the ADA. Gavurnik v. Home
Properties, L.P., 227 F.Supp.3d 410, 420 (E.D.Pa. 2017) (citations omitted).
Thus, a plaintiff may pursue her ADA retaliation claim despite the fact that her
underlying claim of disability discrimination fails. Krouse v. American Sterilizer
Co., 126 F.3d 494, 502 (3d Cir. 1997).
Further, “[w]hat matters under the ADA are not formalisms about the
manner of the request, but whether the employee ... provides the employer
with enough information that, under the circumstances, the employer can fairly
be said to know of both the disability and desire for accommodation.”
24
Drozdowski v. Northland Lincoln Mercury, 321 Fed.Appx. 181, 185 (3d Cir.
2009).
In order to satisfy the third prong of the prima facie case for
retaliation under the ADA, plaintiff must show a “causal link”
between the protected activity and the adverse employment
decision. LeBoon v. Lancaster Jewish Cmty. Cty. Ass’n, 503 F.3d
217, 232 (3d Cir. 2007). Courts look to “a broad array of evidence”
to determine causation, including “temporal proximity,”
“intervening antagonism or retaliatory animus, inconsistencies in
the employer’s articulated reasons for terminating the employee,
or any other evidence in the record sufficient to support the
inference of retaliatory animus.” Id. “[A] gap of three months
between the protected activity and the adverse action, without
more, cannot create an inference of causation and defeat
summary judgment.” Id. at 233.
Gavurnik, 227 F.Supp.3d at 420-21.
In determining whether there is a causal connection between the
protected conduct and the adverse employment action, “courts have typically
analyzed whether there is temporal proximity between the protected activity
and the adverse action, or whether there is a pattern of antagonism by the
employer in response to the protected activity.” Long v. Spalding Automotive
Inc., 337 F.Supp.3d 485, 491 (E.D.Pa. 2018) (citation omitted).
No doubt that the McDonnell Douglas burden-shifting framework applies
to a retaliation claim under the ADA. Williams, 380 F.3d at 760 n. 3. Thus, if
the plaintiff satisfies the prima facie elements of a retaliation claim, “the
burden shifts to the employer to advance a legitimate, non-retaliatory reason
for its conduct.” Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir.
2006). If the employer does so, “the plaintiff must be able to convince the
25
factfinder both that the employer’s proffered explanation was false, and that
retaliation was the real reason for the adverse employment action.” Id.
(citation omitted).
TNG argues that plaintiff did not establish a prima face case of
retaliation. Again, TNG concedes, only for purposes of its dispositive motion,
that plaintiff engaged in protected conduct by requesting an accommodation
for her disability, and that she suffered an adverse employment action when
her employment was terminated. However, TNG maintains that plaintiff failed
to “establish a causal connection between her protected conduct in [June]
2014 (requesting an accommodation) and her termination in [November]
2016.”
The court finds that there is no causal nexus between the protected
activity when plaintiff requested an accommodation to use a cane in June
2014 and TNG’s decision to terminate her employment in November 2016.
Nor is there any temporal proximity between plaintiff’s request for an
accommodation regarding her walking and her termination. Over two years
elapsed between the time when plaintiff requested an accommodation and her
termination. This large time gap is certainly not unusually suggestive of a
retaliatory motive. See LeBoon, 503 F.3d at 233 (Third Circuit held that a 3-
month gap between the protected activity and the adverse action did not
create an inference of causation); Gavurnik, 227 F.Supp.3d at 421 (8-month
gap was not sufficient to show causal nexus between the protected activity
and the termination decision); Long, 337 F.Supp. 3d at 491 (court held that
26
nine months lapse between plaintiff’s request for an accommodation and his
termination “is not ‘unusually suggestive’ of a retaliatory motive.”). Also, as
discussed above, plaintiff has failed to produce any evidence showing that her
termination was in retaliation for her requested accommodation. To the
contrary, TNG granted plaintiff’s request for an accommodation to use a cane
in June 2014, when she made it.
Nor has plaintiff established a causal connection between her request
for an accommodation and her termination through a pattern of antagonism.
The only alleged “antagonistic behavior” occurred in June 2015, when plaintiff
claims that Baresse asked her if she was coming back to work for the Fall
2015 school term. According to plaintiff, she said “yes, why”, and Baresse
then said “because of your problem” and told her that she “better be able to
walk better and get your own stuff.” Plaintiff then responded “this is as good
as I am going to get.” Plaintiff returned to work for TNG in the Fall of 2015,
and she continued to work until she was terminated in November 2016.
Baresse denied she made the comment to plaintiff about her knee and her
ability to walk. Nonetheless, plaintiff continued to work for TNG for another
year and five months after Baresse allegedly made the comment to her and,
during this time, she was still being accommodated by TNG which continued
to allow her to use a cane since June 2014.
Further, TNG contends that even it the plaintiff established a prima facie
case of retaliation, she did not meet her burden of showing that its proffered
non-retaliatory reason for terminating her was a pretext for disability
27
discrimination.
As discussed above regarding plaintiff’s ADAAA disability discrimination
claim, no genuine issues of material fact exist as to whether TNG’s legitimate
non-discriminatory reasons for plaintiff’s termination were merely pretext. “If
the employer provides [a legitimate, non-retaliatory reason for its conduct], the
plaintiff must then ‘be able to convince the factfinder both that the employer’s
proffered explanation was false, and that retaliation was the real reason for
the adverse employment action.’” Keslosky v. Borough of Old Forge, 66
F.Supp.3d 592, 631 (M.D.Pa. 2014) (citations omitted). Here, as discussed
above, the plaintiff has failed to establish by a preponderance of the evidence
that TNG’s proffered legitimate, non-retaliatory reasons for terminating her
were pretextual.
Thus, summary judgment will be granted to TNG with respect to
plaintiff’s ADA and PHRA retaliation claims. See Rubano v. Farrell Area
School Dist., 991 F.Supp.2d 678, 709 (W.D.Pa. 2014) (since the court applied
the same federal standard to plaintiff’s ADA and PHRA retaliation claims and
since plaintiff failed to establish a prima facie claim of retaliation under the
ADA, the court granted defendant’s motion for summary judgment as to both
claims).
D. Failure to Accommodate Claims
Next, plaintiff claims that TNG failed to give her reasonable
accommodations for her knee disability.
As the court in Reyer v. Saint Francis Country House, 243 F.Supp.3d
28
573, 594 (E.D.Pa. 2017), explained:
The adverse employment decisions barred by the ADA include
“not only adverse actions motivated by prejudice and fear of
disabilities, but also ... failing to make reasonable
accommodations for a plaintiff's disabilities.” Mercer v. Se. Penn.
Transit Auth., 26 F.Supp.3d 432, 440 (E.D.Pa. 2014) (quoting
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.
1999)). As such, “[a]n employer’s failure to reasonably
accommodate the disabilities of an otherwise qualified employee
constitutes an adverse employment action under the third element
of the prima facie case of generic disability discrimination.”
Sharbaugh v. W. Haven Manor, LP, 2016 WL 6834613, at *8
(W.D.Pa. Nov. 21, 2016).
Additionally, “the ADA defines discrimination to include ‘not making
reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an applicant or employee,
unless [the employer] can demonstrate that the accommodation would impose
an undue hardship on the operation of the business.’” Id. (citations omitted).
“[F]ailure to accommodate claims ‘do not require that an employer’s
action be motivated by a discriminatory animus directed at the disability and,
therefore, the McDonnell Douglas test does not apply.” Id. at 595 (citations
omitted). Additionally, “a plaintiff can assert a failure to accommodate as an
independent basis for liability under the ADA and RA.” Muhammad v. Court
of Common Pleas of Allegheny Cnty., Pa., 483 Fed.Appx. 759, 763 (3d Cir.
2012); “To make out such a claim, a plaintiff must show that the
accommodation he seeks is reasonable, ..., i.e., that it is “necessary to avoid
discrimination on the basis of disability.” Muhammad, 483 Fed.Appx. at 763
29
(internal citation omitted) (quoting 28 C.F.R. §35.130(b)(7)).
“To establish that an employer breached its duty to provide a reasonable
accommodation, a plaintiff must demonstrate: (1) that he was disabled and his
employer knew it; (2) he requested an accommodation or assistance; (3) his
employer did not make a good faith effort to assist; and (4) he could have
been reasonably accommodated.” Id. (citations omitted).
A qualified individual has the burden of identifying an
accommodation whose costs do not clearly exceed its benefits.
Walton v. Mental Health Ass’n of Southeastern Pennsylvania, 168
F.3d 661, 670 (3d Cir. 1999). Summary judgment may be granted
for a defendant only “in cases in which the plaintiff’s proposal is
either clearly ineffective or outlandishly costly.” Id. (citations
omitted). “If the plaintiff satisfies his or her burden, the defendant
then has the burden to demonstrate that the proposed
accommodation creates an ‘undue hardship’ for it. The ADA
defines ‘undue hardship’ as ‘an action requiring significant
difficulty or expense, when considered in light of [a series of
factors].’ Among the factors to be considered are ‘the effect on
expenses and resources, or the impact otherwise of such
accommodation upon the operation of the facility.’” Id. (quoting 42
U.S.C. §12111(10)(A)(B)).
Id.
“If a plaintiff alleges facts that, if proven, would show that an employer
should have reasonably accommodated an employee’s disability but failed to
do so, he establishes that the employer has discriminated against him.”
Johnson v. McGraw-Hill Companies, 451 F.Supp.2d 681, 700 n. 11 (W.D.Pa.
2006).
The evidence shows that in June 2014, plaintiff requested to use a cane
to assist with her walking at work, after being told by TNG that she could not
30
use the food cart for this purpose, and TNG granted plaintiff’s request. In fact,
plaintiff’s doctor recommended that she be allowed to use the cane at work.
There is no evidence that prior to the June 2014 meeting TNG had allowed
plaintiff to use the food cart as an accommodation to assist her walking while
at work. Plaintiff was then allowed to use her cane to walk while at work
without interruption until her termination in November 2016. Thus, plaintiff
cannot proceed on a failure to accommodate claim based on her request to
use a cane.
Plaintiff also claims that she requested to use the kitchen food cart as
a reasonable accommodation. Baresse, Baranowski, and Drank aver that
plaintiff did not make a request to use the food cart as an accommodation to
assist her walking at work. The evidence shows that at the June 2014
meeting, plaintiff was specifically told by TNG management that she was seen
using the food cart to assist her walking and to support her weight and that
she could not use the food cart in such a manner because it was unsafe and
violated TNG’s safety policy. She was also told that such use of the food cart
put her safety and the safety of others at risk. After this was explained to
plaintiff, she then requested to use a cane as a reasonable accommodation
and her request was granted. Further, Dr. Kazmierski opined that plaintiff
needed to use her cane at work. He made no mention that plaintiff required
to use the food cart to assist her walking. Additionally, plaintiff was at all times
allowed to use the food cart by TNG for its intended purpose to assist with her
duties, such as transporting items, but not to assist with her walking. As such,
31
the evidence shows that TNG made reasonable efforts to determine the
proper accommodation for plaintiff and to assist her as required under the
ADA. See Williams, 380 F.3d at 761.
Plaintiff testified that she was never told that using the food cart was a
safety risk, that her use of the cart never presented any safety issues, and
that she always used the cart at work which was required for 99% of her
duties. However, based on plaintiff’s job duties detailed above, it is clear that
she did not need a food cart for almost all of her duties. Moreover, plaintiff’s
subjective belief that her use of the food cart was not a safety violation is
belied by TNG’s evidence that plaintiff was repeatedly seen by several people
using the cart to assist her walking and that this presented a safety risk to
plaintiff and to other workers since it could tip as this was not the intended use
of the cart.
Additionally, at her deposition, plaintiff testified that she had to use the
cart “99% of the time” “to do something” and carry objects in the kitchen, but
she admitted that she did not know if she directly asked TNG supervisors to
use the cart to assist her in walking or moving around in the kitchen.
Even if plaintiff did request to use the food cart to assist her walking at
work as an accommodation, a proposed accommodation must be reasonable.
See Solomon v. School Dist. of Philadelphia, 882 F.Supp.2d 766, 780
(E.D.Pa. 2012). TNG’s evidence shows that this proposed accommodation
was not reasonable. On the other hand, plaintiff’s ongoing accommodation
provided by TNG of allowing her to use her cane at work was reasonable.
32
“‘[A]n employee cannot make his employer provide a specific accommodation
if another reasonable accommodation is instead provided,’ inasmuch as ‘the
employer providing the accommodation has the ultimate discretion to choose
between effective accommodations, and may choose the less expensive
accommodation or the accommodation that is easier for it to provide.’”
Solomon, 882 F.Supp.2d at 779 (internal citations omitted). The employer can
also chose a safer accommodation and reject a requested accommodation
that is in violation of its safety policies. In fact, “an employer is not required
to provide a reasonable accommodation if it would pose a ‘direct threat’ to
the safety of the employee or others.” Turner v. Hershey Chocolate U.S., 440
F.3d 604, 614 (3d Cir. 2006) (citing Chevron U.S.A. Inc. v. Echazabal, 536
U.S. 73, 78-79, 122 S.Ct. 2045 (2002) (“an employer is not required to
accommodate an employee if the accommodation threatens the health or
safety of that employee or other employees”)). As extensively detailed above,
the undisputed evidence shows that the use of a food cart by plaintiff to assist
her with walking and to support her weight was not safe, was not the intended
use of the cart, and was in violation of TNG’s safety policies. Nor is a food cart
a recognized medical device to be used as a walker.
Thus, TNG’s motion for summary judgment with respect to plaintiff’s
failure to accommodate claims under the ADA and the PHRA will be granted.
See Bielich, 6 F.Supp.3d at 617 (the analysis of plaintiff’s ADA and PHRA
failure to accommodate claims are identical and the court’s determination with
respect to this claim under the ADA “applies with equal force to the PHRA
33
claim.”) (citation omitted).
IV. CONCLUSION
Based on the foregoing reasons, TNG is entitled to summary judgment
as to the plaintiff’s disability discrimination claims, her failure to accommodate
claims and her retaliation claims under the ADAAA and the PHRA. As such,
TNG’s motion for summary judgment will be granted as to all of plaintiff’s
claims in her amended complaint. For the same reasons, plaintiff’s motion for
partial summary judgment motion regarding her disability discrimination claims
will be denied.
An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: August 13, 2019
17-2417-01.wpd
34