Conklin v. Hawbaker Engineering

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LESLIE CONKLIN, No. 4:18-CV-02128

Plaintiff, (Judge Brann)

v.

HAWBAKER ENGINEERING, LLC,

and GLENN O. HAWBAKER, INC,

Defendants.

MEMORANDUM OPINION

OCTOBER 21, 2019

Plaintiff Leslie Conklin brings this case against her employer, Hawbaker

Engineering, LLC, and her employer’s parent company, Glenn O. Hawbaker, Inc.

She alleges that Defendants failed to accommodate her disability and retaliated

against her in violation of the Americans with Disabilities Act (ADA), the

Americans with Disabilities Act Amendment Act (ADAAA), and the Pennsylvania

Human Rights Act (PHRA). On September 3, 2019, Defendants moved for summary

judgment on all counts.

I. BACKGROUND1

In business, as in life, it is important to draw boundaries. Cases like today’s

arise in the gray areas where we fail to do so.

1 The facts described below are either undisputed or, where disputed, found in the nonmovant’s

Glenn O. Hawbaker, Inc, and Hawbaker Engineering, LLC, are legally

distinct entities; the former is the sole parent of the latter.2 Despite the nominal

separation, the two companies overlap heavily in the real world. They operate out of

the same building, and some of their administrative functions, such as human

resources, are run coextensively by one shared department.3 At times, staff from one

company will assist with completing the tasks of the other.4

One such employee is Leslie Conklin, the plaintiff. Conklin was hired by

Glenn O. Hawbaker to work in their billing department in December 2005.5 Five

years later, Conklin transferred to Hawbaker Engineering to work as an

administrative assistant.6 After four years of working at Hawbaker Engineering, in

2014 Conklin was asked to assist with tasks for Glenn O. Hawbaker’s payroll office

in addition to her responsibilities as Hawbaker Engineering’s administrative

assistant.7 Conklin agreed to help as long as it did not interfere with her duties at

Hawbaker Engineering.8 Her official job description does not include any

responsibilities for Glenn O. Hawbaker, but it contains a catch-all provision that

2 Statement of Material Facts ¶ 40 (SOMF), ECF No 33.

3 SOMF ¶ 1–2.

4 Id. at ¶ 1; Conklin Dep 22:1–9, ECF No 36-17.

5 SOMF ¶ 4.

6 Id. at ¶ 6–8; Answer to Defendants’ Statement of Material Facts Ex 2, ECF No 36-2.

7 SOMF ¶ 9.

states that Conklin is to “Perform additional assignments per supervisor’s

direction.”9

In January 2018, Conklin was diagnosed with temporomandibular joint

dysfunction, more commonly known as “TMJ.” Conklin’s TMJ caused her to suffer

severe headaches, pressure in her eye, and pain in her face and jaw.10 While always

present, Conklin’s pain increased during weeks when she helped with Glenn O.

Hawbaker’s billing because of the additional stress and anxiety.11

In April 2018, Conklin requested that she be relieved of duties for Glenn O.

Hawbaker for two or three months to help alleviate her symptoms.12 Her employer

responded by offering her short-term disability leave, which Conklin did not

accept.13 Conklin made a formal request for an ADAAA accommodation on June

15, 2018.14 Defendants denied the request, concluding that removing the Glenn O.

Hawbaker duties would not be a reasonable accommodation because they were part

of her essential function.15 The only action Defendants took was to conduct an

9 Answer to Amended Complaint Fourth Ex G *2, ECF No 31-7.

10 Conklin Dep 16:12–25, 22:14–23:4.

11 Id at 18:18–22.

12 Id at 72:10–16.

13 SOMF ¶ 20.

14 Answer to Defendants’ Statement of Material Facts Ex 13, ECF No 36-13.

ergonomic review of Conklin’s workstation on the recommendation of a third-party

administrator, which resulted in no further action.16

However, Defendants began to take a greater interest in Conklin’s

performance following her request and EEOC complaint in October 2018. A few

days after the filing, Renata Furman, a supervisor, asked the Glenn O. Hawbaker

employees in payroll to create a list of complaints concerning Conklin.17 On

December 28, 2018, Defendants had a meeting with Conklin, at which she was told

that she would now have to report to a supervisor and that her position would be

considered part-time instead of full-time if she ceased performing tasks for Glenn O.

Hawbaker.18 Shortly after this meeting, on January 2, 2019, Conklin reported to

Furman that she felt obstacles were being put in her way of completing tasks at Glenn

O. Hawbaker.19 Conklin also believes that she has been treated differently and

alienated ever since making her request.20

Conklin filed her charge with the EEOC on August 20, 2018.21 On October

15, 2018, the EEOC issued a right-to-sue letter.22 Conklin filed the instant lawsuit

16 Kirkpatrick Dep 24:18–20, ECF No 36-19; Foust Dep 34:14–24.

17 Answer to Defendants’ Statement of Material Facts Ex 10, ECF No 36-10.

18 Conklin Dep 89:18–90:1, 94:3–19; see also Furman Dep 38:2–15, 58:15–19, ECF No 36-20

(Conklin expressed that she felt harassed in this meeting).

19 Furman Dep 50:12–19.

20 Conklin Dep 85:10–86:7.

21 Fourth Amended Complaint ¶ 2, ECF No 30.

on November 5, 2018.23 On June 6, 2019, Conklin filed a charge with the EEOC and

PHRC alleging retaliation.24 Conklin’s Fourth Amended Complaint (the operative

complaint) was filed on August 27, 2019.25 On September 3, 2019, Defendants

moved for summary judgment.26

II. DISCUSSION27

The inciting disagreement at the heart of this case is whether Conklin’s duties

for Glenn O. Hawbaker are an essential function of her job. Conklin, believing they

are not, requested to be relieved of them as an accommodation. Defendants,

believing that they are, denied her request. Defendants’ failure to clearly define

Conklin’s job responsibilities, among other issues discussed more fully below,

preclude the entry of summary judgment.

A. Standard of Review

Summary judgment is appropriate when “the movant shows that there is no

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

23 Complaint, ECF No 1.

24 Fourth Amended Complaint ¶ 2.

25 Fourth Amended Complaint.

26 Motion for Summary Judgment, ECF No 32.

27 In this memorandum opinion I refer only to the ADA and not the PHRA. While there is some

question as to whether the two continue to be interpreted coextensively following the ADAAA’s

expansion of qualifying disabilities in 2008, Conklin’s status as a “disabled” person is not

contested on these papers, and as such any differences in their interpretations are immaterial to the

outcome here. For further discussion, see Morgenfruh v Larson Design Group, Inc, 2019 WL

4511711, at *2 n 37 (MD Pa Sept 19, 2019); Myatt v Village, 2019 WL 2288116, at *1 n 5 (ED Pa

matter of law.”28 “Facts that could alter the outcome are ‘material facts,’ and disputes

are ‘genuine’ if evidence exists from which a rational person could conclude that the

position of the person with the burden of proof on the disputed issue is correct.”29

“A defendant meets this standard when there is an absence of evidence that rationally

supports the plaintiff’s case.”30 “A plaintiff, on the other hand, must point to

admissible evidence that would be sufficient to show all elements of a prima facie

case under applicable substantive law.”31

B. Failure to Accommodate

The ADA provides that an employer must make reasonable accommodations

to the known physical or mental limitations of an otherwise qualified employee,

unless the employer can demonstrate that the accommodation would impose an

undue hardship on the operation of its business.32 To establish a prima facie case,

Conklin must demonstrate that (1) she has a “disability” within the meaning of the

ADA, (2) she is qualified to perform the essential functions of the job with or without

a reasonable accommodation, (3) the employer was informed of the need for an

28 FRCP 56(a).

29 Clark v Modern Group Ltd, 9 F3d 321, 326 (3d Cir 1993), citing Anderson v Liberty Lobby, Inc,

477 US 242, 255 (1986), and Celotex Corp v Catrett, 477 US 317, 322 (1986).

30 Clark, 9 F3d at 326.

31 Id.

accommodation, and (4) the employer failed to provide a reasonable

accommodation.33

Defendants argue that Conklin cannot be considered qualified to perform the

essential functions of the job. Conklin requested to cease performing work for Glenn

O. Hawbaker, which she contends was voluntary work that supplemented her

primary employment with Hawbaker Engineering. Defendants counter that the

Glenn O. Hawbaker work was an essential function of Conklin’s job, and, by

requesting to no longer perform it, she would not be fulfilling necessary essential

functions.

The evidence in the record does not render this issue appropriate for summary

judgment. Conklin believed that she was an employee of Hawbaker Engineering, not

Glenn O. Hawbaker.34 She testified that she initially began assisting with Glenn O.

Hawbaker’s payroll duties on a voluntary basis on the condition that it did not

interfere with her job as Hawbaker Engineering’s administrative assistant.35 This

evidence could support a conclusion that duties for a separate company were not

essential to her job. Defendants cite her job description that states Conklin is to

“Perform additional assignments per supervisor’s direction” to argue that these

33 See Mangel v Graham Packaging Co, LP, 2016 WL 11478177, at *7 (WD Pa Feb 29, 2016).

34 Conklin Dep 74:3–8.

responsibilities were essential, but a simple catch-all provision does not foreclose a

reasonable jury from concluding that they were not.36

Defendants also contend that they sufficiently engaged in the interactive

process to preclude Conklin’s satisfaction of the fourth element, but this too is

disputed. First, Defendants did not grant Conklin’s request; whether this request

would have been a reasonable accommodation is genuinely contested, as discussed

in the previous paragraph. Further, the extent of Defendants’ good-faith participation

in the interactive process is also disputed. A reasonable jury could conclude that

Conklin’s physical therapist’s statements recommended that she be relieved of her

Glenn O. Hawbaker duties and that Defendants ignored this recommendation.37 A

jury could also conclude that the only accommodation Defendants offered—an

ergonomic review of her workstation that resulted in no changes—was functionally

no accommodation at all.

Because the facts surrounding the essential functions of Conklin’s job and

Defendants’ good-faith participation in the interactive process are disputed, I deny

summary judgment on Conklin’s failure-to-accommodate claim.

36 See Answer to Amended Complaint Fourth Ex G *2, ECF No 31-7.

37 See Answer to Statement of Facts Ex 6, ECF No 36-6; Answer to Statement of Facts Ex 7, ECF

C. Retaliation

An employee must satisfy three elements to establish a prima facie case of

retaliation: “(1) protected employee activity; (2) adverse action by the employer

either after or contemporaneous with the employee’s protected activity; and (3) a

causal connection between the employee’s protected activity and the employer’s

adverse action.”38 “Requesting an accommodation is a protected employee activity

under the ADA.”39 Alteration of the terms, conditions, or privileges of employment

may be considered an adverse action.40 Close temporal proximity accompanied by

the employer’s awareness of the need for an accommodation may establish a causal

connection.41

The evidence in the record is sufficient for Conklin to make out a prima facie

case of retaliation. Conklin’s request for an accommodation was a protected activity.

She has identified evidence that Defendants changed the conditions of her

employment by adding a new supervisor to report to and threatening to change her

position from full-time to part-time. Conklin also identified evidence that

Defendants harassed her and created a list of issues with her shortly after filing her

EEOC claim.42 Defendants’ awareness of Conklin’s request for accommodation and

38 Fogleman v Mercy Hospital, Inc, 283 F3d 561, 567–68 (3d Cir 2002).

39 Sowell v Kelly Services, Inc, 139 F Supp 3d 684, 702 (ED Pa 2015).

40 Storey v Burns International Security Services, 390 F3d 760, 764 (3d Cir 2004).

41 Sowell, 139 F Supp 3d at 703.

the temporal proximity of these actions to the filing of her EEOC complaint allow a

causal connection between these and the adverse actions to be permissibly drawn.

Summary judgment is denied for Conklin’s retaliation claim.

III. CONCLUSION

Defendants’ motion for summary judgment is DENIED. An appropriate

Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge