Scopelliti v. Traditional Home Health and Hospice

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DINA SCOPELLITI,

Plaintiff, :

Vv. 3:18-CV-40

(JUDGE MARIANI)

TRADITIONAL HOME HEALTH :

AND HOSPICE

Defendant.

MEMORANDUM OPINION

|. INTRODUCTION AND PROCEDURAL HISTORY

Presently before the Court are two Reports and Recommendations (“R&R”) (Doc. 63;

Doc. 70) issued by Magistrate Judge Carlson, wherein the Magistrate Judge recommends

denying the parties’ cross-motions for summary judgment. Specifically, the R&Rs address

Defendant Traditional Home Health and Hospice’s (hereinafter “Traditional”) Motion for

Summary Judgment (Doc. 23) (see Doc. 63) and a Motion for Partial Summary Judgment

filed by Plaintiff Dina Scopelliti (hereinafter “Scopelliti’) (Doc. 29) (see Doc. 70).

Here, in relevant part, Plaintiffs Amended Complaint alleges Retaliation in Violation

of the Family Medical Leave Act (“FMLA”) (Count I!) and “Disability Discrimination/Failure to

Accommodate/Retaliation” in Violation of Americans with Disabilities Act (“ADA”) (Count III)

(Doc. 6).! These two federal causes of action concern Plaintiff's allegations that she was

discharged by Defendant for attempting to exercise her rights under the FMLA and ADA and

was otherwise discriminated against on the basis of various alleged disabilities following an

extended leave of absence to recover from various surgeries. (/d.).

In August, 2019, following the close of fact discovery, the parties filed cross-motions

for summary judgment. The motions were thereafter referred to Magistrate Judge Carlson

for the preparation and issuance of R&Rs. (Doc. 45). In December, 2019, Magistrate

Judge Carlson issued two R&Rs, each addressing one motion for summary judgment (Doc.

63; Doc. 70) and recommending that both parties’ motions be denied. (See id).

With respect to the FMLA retaliation claim, Magistrate Judge Carlson recommended

denying Defendant’s motion for summary judgment, finding that disputed issues of material

fact exist with respect to whether Plaintiffs termination was in retaliation for exercising her

FMLA rights. (Doc. 63, at 17-19).2 As to the ADA claims, Magistrate Judge Carlson

recommended that this Court deny both parties’ motions for summary judgment without

prejudice because there are material disputes of fact which preclude a determination of the

essential functions of Plaintiff's job and whether a reasonable accommodation, which would

Count | of Plaintiffs Amended Complaint alleged Interference in Violation of the FMLA (Doc. 6).

District Court Judge A. Richard Caputo, to whom this case was previously assigned, dismissed this Count

with prejudice in April of 2018. (See Doc. 13; Doc. 14).

2 Magistrate Judge Carlson only addressed the FMLA claim when evaluating Defendant's motion

for summary judgment. (Doc. 63). The second Report and Recommendation (Doc. 70), which addressed

Plaintiff's partial motion for summary judgment, did not make any recommendation on the FMLA claim as it

was not raised in Plaintiffs Motion.

allow Plaintiff to perform these functions, was not only requested but reasonably available to

Plaintiff. (Doc. 63 at 24-30; Doc. 70 at 14-20). The R&Rs further suggested that, upon the

development of a clearer factual record as to the essential tasks of Plaintiffs job, what

accommodations were sought, and whether those accommodations were reasonable,

summary judgment may be appropriate. (Doc. 63 at 28, 30; Doc. 70 at 17-18, 20-21).

For the following reasons, upon de novo review of the R&Rs and the parties’

objections thereto, the R&Rs will be adopted as modified.

Il. STATEMENT OF UNDISPUTED FACTS?

The factual summaries found in the R&Rs (Doc. 63 at 4-7; Doc. 70 at 3-5), which are

identical, are adopted and incorporated by reference herein.

Ill. ANALYSIS

A district court may “designate a magistrate judge to conduct hearings, including

evidentiary hearings, and to submit to a judge of the court proposed findings of fact and

recommendations for the disposition” of certain matters pending before the court. 28 U.S.C.

§ 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge’s

Report & Recommendation, the District Court “shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to which objection

3 “In making its de novo review, the court may accept, reject, or modify, in whole or in part, the

factual findings or legal conclusions of the magistrate judge.” Adam C. v. Scranton Sch. Dist., 2011 WL

996171, at*1 (M.D. Pa. 2011).

is made.” Id. at § 636(b) (1); see also Brown v. Astrue, 649 F.3d 193,195 (3d Cir. 2011);

Local Rule of the Middle District of Pennsylvania 72.3.

By timely objection, the Defendant argues, very generally, that the first R&R’s

recommendation as to the FMLA claim was erroneous because Plaintiff produced no

documentation of her health status at the time of her additional request for time off and

because Traditional has always complied with the FMLA, thus showing its lack of a

retaliatory motive. (Doc. 69 at 4-9).4

As to the ADA claims, Plaintiff timely objected to the Magistrate Judge's

recommendations, arguing first that the Court overlooked her “straight disability” claim.

(Doc. 65, at 3). Plaintiff alleges that, without having to show more, she should prevail on

her claim because she directly proved that Defendant fired her because of her disabilities.

(Id. at 3-5; Doc 73, at 3-5). Scopelliti further argues that the additional time off she

requested was a reasonable accommodation, that Defendant did not engage in an

interactive process with her regarding this accommodation, and ultimately retaliated against

her for requesting an accommodation. (Doc. 65 at 5-6; Doc. 73 at 5-8). Finally, Plaintiff

argues that Traditional should not be granted additional leave to supplement its motion for

summary judgment. (/d. at 3; Doc. 73 at 3).

4 Only Magistrate Judge Carlson’s first R&R (Doc. 63) addresses the FMLA claim, as Plaintiff did

not move for summary judgment on this Count. The Plaintiff did not object to Magistrate Judge Carlson's

findings in this R&R which pertained to her FMLA claim.

Defendant also filed objections to the Magistrate Judge’s recommendations as to the

ADA claims, arguing that Plaintiff has presented insufficient evidence of being disabled and

in ill-health to survive summary judgment; that Plaintiff never requested a reasonable

accommodation; and, that it accommodated Plaintiff and demonstrated good faith in its

negotiations and discussions with Plaintiff regarding accommodations. (Doc. 69 at 10-12).

The Court will thus conduct a de novo review of those portions of the R&Rs or

specified proposed findings or recommendations to which the objections set forth, supra,

are made by the parties.®

5 This memorandum opinion is limited to ruling upon the Objections raised by Plaintiff and

Defendant to the Magistrate Judge’s R&Rs. As such, the opinion does not find facts, as it is improper to do

so, in determining whether to grant or deny summary judgment and does not determine the issues to be

tried except to the extent necessary to apply the required summary judgment analysis. See Guidotti v.

Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013):

Under Rule 56, . . . a “court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movantis entitled to judgment as a matter

of law.” Fed.R.Civ.P. 56(a). The party asserting that there is a genuine dispute of material

fact must support that assertion by “citing to particular parts of ... the record, including

depositions, documents, electronically stored information, affidavits or declarations,

Stipulations... admissions, interrogatory answers, or other materials.” Fed.R.Civ.P.

56(c)(1)(A). In evaluating the motion, “the court must draw all reasonable inferences in favor

of the nonmoving party, and it may not make credibility determinations or weigh the

evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097,

147 L.Ed.2d 105 (2000).

716 F.3d at 772. See also, Doebblers’ Penn. Hybrids, Inc. v. Doebbler, 442 F.3d 812, 820 (3d Cir.

2006)(stating that credibility determinations “are inappropriate to the legal conclusions necessary to a ruling

on summary judgment. . . . A District Court should not weigh the evidence and determine the truth itself, but

should instead determine whether there is a genuine issue for trial.”); J. F. Feeser, Inc. v. Serv-A-Portion,

Inc., 909 F.2d 1254, 1531 (3d Cir. 1990) (“We are keenly aware that credibility determinations are not the

function of the Judge; instead the non-movant’s evidence must be credited at this stage.”).

A. Legal Standard for FMLA Retaliation

“To prevail on a retaliation claim under the FMLA, the plaintiff must prove that (1) she

invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment

decision, and (3) the adverse action was causally related to her invocation of rights.”

Lichentenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-302 (3d Cir. 2012).

‘[C]laims based on circumstantial evidence have been assessed under the burden-

shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 37 L.Ed.2d 668 (1973), while claims based on direct evidence have been

assessed under the mixed motive framework set forth in Price Waterhouse v. Hopkins, 490

U.S. 228, 276-77, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).” Id. at 302.6

Under McDonnell Douglas’ burden-shifting framework,

[the employee] has the initial burden of establishing a prima facie case. To do

so, she must point to evidence in the record sufficient to create a genuine

factual dispute about each of the three elements of her retaliation claim: (a)

invocation of an FMLA right, (b) termination, and (c) causation. If [the

employee] can do so, the burden of production shifts to [the employer] to

articulate some legitimate, nondiscriminatory reason for its decision. If [the

employer] meets this minimal burden, [the employee] must point to some

evidence, direct or circumstantial, from which a factfinder could reasonably . . .

disbelieve [the employer's] articulated reasons.

Id. (internal citations and quotations omitted).

8 Magistrate Judge Carlson analyzed Plaintiffs FMLA claim under the McDonnell Douglas burden

shifting framework. No party has objected to this application or asserted that direct evidence exists as to

this claim which would require an analysis of the FMLA claim under Price Waterhouse.

Here, as previously stated, Traditional objects to the Magistrate Judge’s

recommendation that it be denied summary judgment as to Plaintiffs FMLA claim, arguing

that no retaliatory motive has been shown and that Plaintiff was healthy enough to return to

work, or, at least, had no documentation supporting additional leave. (Doc. 69 at 4-9). As

Defendant's objections do not address the issues of whether Plaintiff invoked her FMLA

rights prior to her leave and was terminated following that leave, Defendant’s objection is

best construed as an objection to the causation prong of the FMLA analysis, /.e. that

Traditional fired Scopelliti not due to her invocation of her FMLA rights, but for other non-

discriminatory reasons.

This objection fails. As noted by Magistrate Judge Carlson, there was a close

temporal proximity between Plaintiffs invocation of her FMLA rights and her termination.

(Doc. 63 at 17); see also Lichtenstein, 691 F.3d at 307 (finding that the “temporal proximity

in this case is in the realm of what this Court and other have found sufficient at the prima

facie stage.”). Here, the temporal proximity between Plaintiff's use of her FMLA leave for

her surgery, her request for additional days off, and her termination is “unduly suggestive”

and “is sufficient standing alone to create an inference of causality[.]” Lichtenstein, 691

F.3d at 307; see also Montone v. Schuylkill Health Sys., 2014 WL 3055363, at *6 (M.D. Pa.

2014) (holding the same). As noted by Magistrate Judge Carlson, while this temporal

proximity is not enough to warrant summary judgment for Plaintiff, it is enough to defeat

Defendant's motion, and creates a genuine issue of material fact for trial. (Doc. 63 at 17 (“In

this case, we believe the evidence would permit, but not compel, an inference of causation .

. . [that] must be tested at trial as a matter of fact.”)). Past compliance with the FMLA and

Plaintiffs disputed health history, contrary to the Defendant’s assertions, does not change

the suggestiveness of this close proximity and are factual arguments not suited for summary

judgment.

Further, as succinctly set forth by Magistrate Judge Carlson:

defendant counters that it had a legitimate, nondiscriminatory reason for firing

Scopelliti in that her FMLA leave had expired and her request for an additional

week off after her expected, yet unfulfilled return to work was unduly

burdensome. However, other countervailing facts undermine the persuasive

power of this defense. Thus, while there is abundant evidence from Scopelliti's

supervisors at Traditional that everyone worked closely with the plaintiff

throughout her time at Traditional to accommodate her medical needs and

allow her to attend her medical appointments and classes when necessary, the

defendant opted to fire Scopelliti the same day that she requested an additional

week off of work to recover on June 6, 2017 — a request that, according to the

defendant's deposition testimony, likely would have been granted in the past.

We find these factors sufficient to create disputed issues of fact concerning the

defendant's reasons for Scopellit’s termination, and thus sufficient to survive

summary judgment.

(Doc. 63, at 19)(internal citations omitted). See also, Montone, 2014 WL 3055363, at “8-12

(holding that temporal proximity between request and termination and probing about FMLA

approval raised genuine issues of material fact for trial on pretext issue).

In sum, genuine disputes of material fact exist which preclude the Court from

granting Defendant's motion for summary judgment as to Plaintiffs claim of retaliation in

violation of the FMLA. As such, Magistrate Judge Carlson’s recommendations will be

adopted with respect to the FMLA claim.

B. Legal Standard for ADA Discrimination and Retaliation Ciaims

The ADA prohibits discrimination “against a qualified individual with a disability

because of the disability of such individual” as it pertains to his or her employment. 42

U.S.C. § 12112(a). The ADA, in its relevant retaliation provision, also states that “[njo

person shall discriminate against any individual because such individual has opposed any

act or practice made unlawful by the [the ADA] or because such individual made a charge . .

. under [the ADA].” 42 U.S.C. § 12203(a).

As with FMLA claims, ADA discrimination and retaliation claims can be established

through direct or circumstantial evidence. See Strausser v. Gertrude Hawk Chocolate, Inc.,

2018 WL 1470796, at *2 (M.D. Pa. 2018). “Direct evidence of discrimination would be

evidence which, if believed, would prove the existence of the fact in issue without inference

or presumption.” Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994) (emphasis in original;

internal brackets and quotation marks omitted). “[E]vidence is not direct where the trier of

fact must infer the discrimination ... from an employer's remarks.” /d. (emphasis in original).

Absent direct evidence, discrimination and retaliation claims are evaluated pursuant to the

same McDonnell Douglas burden shifting framework set forth above with respect to the

Plaintiffs FMLA claim. See generally Duran v. Cty. of Clinton, 380 F.Supp.3d 440 (M.D. Pa.

2019) (discussing application of McDonnell Douglas framework to ADA and FMLA claims).

Although Plaintiff asserts that the Court should have considered her ADA

discrimination claim on a direct evidence theory (see Doc. 65 at 3-5; Doc. 73 at 3-5),

Plaintiff has failed to point to any direct evidence of discrimination on the record. As stated,

direct evidence permits a finding of discrimination or retaliation without inference. That is, it

must be evidence that is “so revealing of discriminatory animus that it is not necessary to

rely on any presumption from the prima facie case to shift the burden of production.”

Buchsbaum v. Univ. Physicians Plan, 55 F.App’x 40, 45 (3d Cir. 2002) (quoting Armbruster

v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994)). Further stated, “the evidence must be

such that it demonstrates that the ‘decisionmakers placed substantial negative reliance on

an illegitimate criterion in reaching their decision.” Walden v. Georgia-Pac. Corp., 126 F.3d

506, 513 (3d Cir.1997) (quoting Price Waterhouse, 490 U.S. at 277 (O'Connor, J.,

concurring).

The evidence presented here, including the termination letter, Scopelliti's deposition,

and all other materials of record (see Doc. 63 at 4-7, 27-28 (summarizing record evidence)),

at best, present circumstantial evidence of Plaintiffs ADA claim. This evidence does not

prove the existence of discriminatory animus on the part of Traditional without inference or

presumption by the trier of fact nor does it directly show that Traditional placed substantial

negative reliance on illegitimate criterion in its decision to terminate Plaintiff. While Plaintiff

asserts that Defendant fired her because of her “health status,” this general statement is not

supported by Plaintiff with any direct evidence and constitutes an attempt by Plaintiff to

characterize the evidence in her favor.

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In addition, there is no evidence on the record that Plaintiffs health status was not

critical to her employment, i.e., that her physical presence was not required to perform her

job, nor is there evidence of record that establishes that the additional time off from work

was a reasonable accommodation. Thus, the Defendant's reference to Plaintiffs health

status in its letter of termination (Doc. 30-3)’ could be considered a valid reason to have

terminated Plaintiff if she could not perform the functions of the job, even with an

accommodation, because of such status.

Accordingly, there is no direct evidence of discrimination. Under the evidence

presented, to find for Plaintiff a jury would be required to infer that Defendant discriminated

against her. Further, Plaintiff has not presented any evidence that is “so revealing of

discriminatory animus that it is not necessary to rely on any presumption from the prima

facie case to shift the burden of production”, Buchsbaum, 55 F.App’x at 45.

Because the same evidence and necessary inferences also apply to Plaintiff's

retaliation claim, such claim similarly cannot proceed under a direct evidence theory. Both

claims will thus be evaluated under the McDonnell Douglas framework.

1. ADA Discrimination Claim

“[T]o establish a prima facie case of discrimination under the ADA, the plaintiff must

show: ‘(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise

TAt the conclusion of Traditional’s letter terminating Plaintiff, it stated that “[w]e are sorry that your

health status is preventing you from returning to work at the Agency. . .” (Doc. 30-3).

11

qualified to perform the essential functions of the job, with or without reasonable

accommodations by the employer; and (3) he has suffered an otherwise adverse

employment decision as a result of discrimination.” Taylor v. Phoenixville Sch. Dist., 184

F.3d 296, 306 (3d Cir. 1999) (quoting Gaul v. Lucent Techs., 134 F.3d 576, 580 (3d Cir.

1998)).8

a. Disability

“To satisfy the requirement of having a ‘disability’ a plaintiff may demonstrate any

one of: an actual mental or physical impairment that substantially limits one or more major

life activities, a record of such impairment, or that his employer regarded him as having a

disability.” Macfarlan v. Ivy Hil SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012).

Here, Traditional argues that summary judgment should be granted in its favor

because Scopelliti has presented insufficient evidence of impairments to demonstrate that

she is disabled. (Doc. 69 at 10-11). However, Defendant fails to address the Magistrate

Judge’s summary of the record evidence indicating that Plaintiff routinely took doctor

approved leave for her impairments; Plaintiff presented doctor’s notes which stated the

reasons why this leave was needed; Plaintiff's testimony that her lupus and chronic

migraines affected her ability to “bend, walk, lift and concentrate;” and that Traditional itself

acknowledged Plaintiffs “health status” in her termination letter and never previously

8 With respect to the third prong, neither party contends that termination is not an adverse

employment action.

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objected to her taking approved leave for her conditions. (See Doc. 63 at 4-7, 22-23). In its

objections, Defendant also fails to address the sweeping language of the ADA Amendments

Act (“‘ADAAA”), which provides that the ADA “‘shall be construed in favor of broad coverage

of individuals’ and expanded the rules of construction governing the definition of disability.”

Showers v. Endoscopy Ctr. of Cent. Pennsylvania, LLC, 58 F.Supp.3d 446, 460 (M.D. Pa.

2014) (quoting ADA Amendments Act of 2008, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553,

3555). As the alleged conditions, and supporting evidence, of being unable to properly

bend, walk, lift, and concentrate qualify as major life activities, and therefore as disabilities

under the ADA, see Canevari v. Itoh Denki U.S.A., Inc., 2017 WL 4080548, at *7-8 (M.D.

Pa. 2017) (finding that history of medical notes and Plaintiffs own attestation to difficulty

walking and standing due to ongoing condition satisfied prima facie burden for a disability),

and as the sweeping language of the ADAA favors broad construction of what qualifies as a

disability, see Kessler v. AT&T, 2015 WL 5598866, at *5-6 (M.D. Pa. 2015), Plaintiff has met

her burden, at this stage, of establishing that she is a disabled person within the meaning of

the ADA. (See Doc. 63 at 20-23; Doc. 70 at 10-14).

b. Reasonable Accommodation

Plaintiff must further demonstrate that she is otherwise qualified to perform the

essential functions of the job, with or without reasonable accommodations by the employer,

i.e., that she has the skills to perform the requirements of her job and that she could perform

these requirements with, or without, a reasonable accommodation. Skerski v. Time Warner

13

Cable Co., 257 F.3d 273, 278 (3d Cir. 2001). Ifa plaintiff satisfies this burden and identifies

a reasonable accommodation, the burden then falls on the defendant to show whether the

requested accommodation would create an undue hardship. /d. at 284.

On this element, Magistrate Judge Carlson first found that neither party challenged

whether Scopelliti had the requisite skills to perform the tasks of her job when present.

Instead, the R&Rs determined that the parties disputed “whether consistent, full-time

attendance was an essential function of [Plaintiff's] job, and thus whether Scopelliti could

perform this essential function of her job with a reasonable accommodation - i.e., reducing

her work hours or modifying her schedule to attend medical appointments and taking an

extra week off in June of 2017 to recover from her surgical procedure earlier in the year.”

(Doc. 63 at 24; Doc. 70 at 14). The Magistrate Judge found that the record was unclear on

this point as Plaintiff did not specify why exactly she needed the time off, whether this sort of

leave would be recurring, and whether her attendance at work was an essential function of

the job. (Doc. 63 at 27-28, n. 8, n. 9; Doc. 70 at 17-18, n. 4, n. 5). While Plaintiff arques

that the additional days off represent a reasonable accommodation and that Traditional did

not engage in an interactive process regarding this request (Doc. 65 at 5-6; Doc. 73 at 5-8),

Defendant argues that Plaintiffs request was not one for a reasonable accommodation and

that it accommodated Scopelliti and attempted to negotiate with her when she had

requested accommodations in the past (Doc. 69 at 11-12).

14

As noted by Plaintiff, Defendant's objection fails to recognize that requesting time off

— if such time off is not excessive and would allow an employee to return to normal work —

can be considered a reasonable accommodation. (See Doc. 65 at 5-6; Doc. 73 at 6-7); see

also, Fogleman v. Greater Hazleton Health All., 122 F.Appx 581, 585 (3d Cir. 2004) (holding

that federal courts have considered leaves of absence to be reasonable accommodations if

it would allow the employee to return to work in the near future).

Nonetheless, as explained by Magistrate Judge Carlson, “there is both a factual

ambiguity and a dispute of material fact regarding whether the defendant honored

Scopelliti's requests for accommodations during her employment and whether those

requested accommodations were unreasonable.” (Doc. 63 at 27; Doc. 70 at 17). The

R&Rs specifically note that an ambiguity exists as to “the nature of the accommodations

that Scopelliti sought”, and that “[w]ith respect to Scopelliti's request for an additional week

off after her anticipated return from FMLA leave in June of 2017, we lack evidence on the

record to indicate whether this additional requested time off was at all related to Scopelliti’s

alleged disabilities.” (Doc. 63 at 27 ns. 8, 9; Doc. 70 at 17 ns. 4, 5). Plaintiff's objections do

not point to record evidence which contradicts Magistrate Judge Carlson’s findings or places

those asserted factual ambiguities and disputes of material fact in doubt. Nor has Plaintiff

produced evidence demonstrating that no material dispute of fact exists as to whether she

would be able to perform the essential functions of her job with the additional leave, that is,

that the additional time off would not impede her job functions and would allow her to return

15

to work able to perform those functions. (See Doc. 63 at 24-25, 27-28; Doc. 70 at 14-15,

17-18).

However, in turn, Defendant has not shown why additional time off would have been

unreasonable and why Plaintiffs physical presence was necessary for her to complete her

job functions. (See id.). Rather, Defendant has presented evidence that the reason that

Plaintiff was put in the Connections Program Coordinator job, the position she was to

assume following her leave, in the first place, was because it would allow her to work from

home occasionally. (See Doc. 42-4 Tab D at J 16). It was upon this factual ambiguity that

Magistrate Judge Carlson found that plaintiff met this element of her prima facie case.

(Doc. 63 at 27-28, 30).

As such, Plaintiff has presented evidence which may establish a prima facie claim

that she requested a reasonable accommodation and that she could perform her job with

such accommodation but she has failed to establish these necessary elements of her claim

without any dispute of material fact such that she is entitled to judgment as a matter of law.

Similarly, due to the existing disputed material facts, Defendant is also not entitled to

summary judgment as to this claim.

2. ADA Retaliation Claim

“To establish a prima facie case of retaliation under the ADA, a plaintiff must show:

(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

16

between the employee's protected activity and the employer's adverse action.” Krouse v.

Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).

a. Reasonable Accommodation

“With respect to the first element of a prima facie retaliation claim, a good-faith

request for an accommodation constitutes protected employee activity under the ADA.”

Allen v. Lackawanna Cty. Bd. of Commissioners, 2019 WL 4621276, at *6 (M.D. Pa. Aug.

23, 2019), report and recommendation adopted as modified, 2019 WL 4644244 (M.D. Pa.

Sept. 23, 2019) (citing Shellenberger, 318 F.3d 183, 191 (3d Cir. 2003)).

Here, Plaintiff objects to the Magistrate Judge's findings by arguing simply that she

engaged in a protected activity by requesting a reasonable accommodation and that she

was terminated because of it. (Doc. 73 at 7-8). Plaintiff's objections thus implicate the

same objections previously addressed with respect to the Magistrate Judge’s findings

addressing Plaintiffs discrimination claim and improperly require the Court to weight the

evidence, assess credibility, and engage in fact finding. See e.g., Guidotti, 716 F.3d 772;

Doebblers’ Penn. Hybrids, Inc, 442 F.3d at 820. Specifically, as explained by Magistrate

Judge Carlson,

itis unclear whether Scopelliti’s requests for accommodations were attributable

to her chronic migraines or lupus diagnosis, recovery from surgery to resolve

these conditions, or some other outstanding cause unrelated to her identified

disabilities in her amended complaint. Moreover, we find that there is an

ambiguity regarding the nature of the accommodations that Scopelliti sought.

* The Court again reiterates that neither party has argued that termination is not an adverse

employment action.

17

Specifically, it is unclear to us whether Scopelliti was seeking a “blank check’

in terms of time off from work when her alleged disabilities flared up or whether

she sought a more tailored solution from the defendant. Furthermore,

Scopellitis retaliation and failure-to-accommodate claims rest upon a

contested factual premise regarding the motive and intent of the defendant.

Scopelliti insists that the defendant acted in bad faith and with the intent to

retaliate. The defendant, in turn, contends that its actions were a reasonable

response to the unreasonable demands and conduct of the plaintiff. These

disputes issues of motive and intent also prevent entry of judgment as a matter

of law in favor of the plaintiff.

(Doc. 70, at 20; see also, Doc. 63, at 29-30).

As it pertains to both Plaintiff and Defendant’s objections, Magistrate Judge

Carlson's recommendations, and this Court's findings set forth in further detail with respect

to Plaintiffs ADA discrimination claim, supra, apply with equal force here. Material factual

disputes, including but not limited to, the essential functions of Plaintiff's job, the nature of

the accommodation sought by Plaintiff, and what a reasonable accommodation would be,

preclude this Court from granting summary judgment to either party.

b. Causation

“Regarding the third element, a causation analysis often, but not exclusively, rests on

two key factors: ‘(1) the temporal proximity between the protected activity and the alleged

retaliation and (2) the existence of any pattern of antagonism in the intervening period.”

Allen, 2019 WL 4621276, at *6 (quoting Jensen v. Potter, 435 F.3d 444, 450 (3d Cir. 2006)).

As discussed in connection with Plaintiffs FMLA claim, the temporal proximity between

Plaintiff's request for a reasonable accommodation and her termination is sufficiently

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suggestive of retaliation and enough to make out her prima facie case on this element for

purposes of a summary judgment analysis. See id. at *7.

3. Legitimate and Non-Discriminatory Reason; Pretext

Under the McDonnell Douglas framework, as previously explained, after a plaintiff

has met her burden of establishing a prima facie case, the burden “shifts to the employer to

‘articulate some legitimate, nondiscriminatory reason for the [adverse employment action],”

Walton v. Mental Health Ass'n. of Se. Pennsylvania, 168 F.3d 661, 668 (3d Cir. 1999)

(quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).

As discussed by Magistrate Judge Carlson when addressing Plaintiffs FMLA claim,

Defendant asserts that it had a “legitimate, nondiscriminatory reason for firing Scopelliti in

that her FMLA leave had expired and her request for an additional week off after her

expected, yet unfulfilled return to work was unduly burdensome.” (Doc. 63 at 19). This

proffered reason also applies to the Court’s analysis of Plaintiffs ADA claim. Even

assuming that Traditional has met the second step of the McDonnell Douglas framework by

proffering a legitimate, nondiscriminatory reason for Plaintiff's termination, summary

judgment would be defeated at the third step, because the record raises triable issues of

fact as to whether Traditional’s proffered reasons should be credited. Whether the reasons

set forth by Defendant were legitimate or pretextual turn on the same factual issues which

preclude summary judgment on the prima facie elements, that is, there is conflicting

evidence on the record to determine what the essential functions of Plaintiff's job were, what

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accommodations were sought by Plaintiff, and what reasonable accommodations, if any,

would allow Plaintiff to perform the essential functions of the position given her asserted

medical conditions. (See Doc. 70, at 20)(“.. . Scopelliti’s retaliation and failure-to-

accommodate claims rest upon a contested factual premise regarding the motive and intent

of the defendant. Scopelliti insists that the defendant acted in bad faith and with the intent to

retaliate. The defendant, in turn, contends that its actions were a reasonable response to

the unreasonable demands and conduct of the plaintiff. These disputes issues of motive

and intent also prevent entry of judgment as a matter of law in favor of the plaintiff.”).

For these reasons, the parties’ objections will be overruled.

C. ADA Failure to Accommodate Claim

“An employee can demonstrate that an employer breached its duty to provide

reasonable accommodations because it failed to engage in good faith in the interactive

process by showing that: 1) the employer knew about the employee's disability; 2) the

employee requested accommodations or assistance for his or her disability; 3) the employer

did not make a good faith effort to assist the employee in seeking accommodations; and 4)

the employee could have been reasonably accommodated but for the employer's lack of

good faith.” Moore v. CVS Rx Servs., Inc., 142 F.Supp.3d 321, 335 (M.D. Pa. 2015)

(quoting Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 772 (3d Cir.

2004).

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As to this claim, Plaintiff and Defendant in essence re-allege their same objections

as to Magistrate Judge Carlson's determinations with respect to the existence of triable

disputes of fact as to whether a reasonable accommodation was requested and whether

Defendant attempted to or could make such an accommodation. (See Doc. 65 at 5-6; Doc.

69 at 9-12; Doc. 73 at 5-7). Here, as explained by Magistrate Judge Carlson, genuine

disputes of fact exist with respect to the essential functions of Plaintiffs job, the

accommodation requested by Plaintiff, wnether the accommodation was reasonable, and

whether Plaintiff could perform the essential functions of her job with the accommodation.

(See Doc. 63 at 24-30; Doc. 70 at 14-20). In addition, Plaintiff has not set forth any

evidence to even suggest that she requested anything other than an additional week off due

to unspecified complications from surgery, see Vought v. Twin Tier Hosp., 2019 WL

2901470, at *6 (M.D. Pa. 2019) (holding that open-ended leave request was not a request

for a reasonable accommodation). Nor has Traditional set forth evidence to show that

Plaintiffs attendance at work was compulsory or that it could not otherwise accommodate

her, see Sciarrino v. Regional Hosp. of Scranton, 2020 WL 1244477, at *5-6 (M.D. Pa.

2020) (holding that defendant did not engage in interactive process when they failed to

discuss the Plaintiffs accommodation with her).

Thus, for substantially the same reasons that the Court set forth, supra, in overruling

the parties’ objections and adopting the Magistrate Judge’s recommendations and findings

with respect to Plaintiff's discrimination and retaliation claims, the Court will also adopt the

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Magistrate Judge’s recommendations and findings addressing the reasonable

accommodation claim. Here, because there are disputes of material fact as to the essential

elements of Scopelitti’s claims and Traditional’s defenses, no party is entitled to summary

judgment.

Finally, although the Court will adopt the R&Rs’ factual and legal analysis as to the

FMLA, ADA, and ADAAA claims, the Court declines to adopt the Magistrate Judge's

recommendation that the parties’ motions for summary judgment as to the ADA and ADAA

claim be dismissed without prejudice “subject to later renewal on a clearer and more precise

record” (see Doc. 63 at 31; Doc. 70 at 21), as this Court has determined that trial on the

facts and issues in dispute is necessary.

IV. CONCLUSION

For the foregoing reasons the Court will adopt Magistrate Judge Carlson's R&Rs

(Doc. 63; Doc. 70) and will deny the parties’ cross-motions for summary judgment. A

separate Order follows. ‘ )

tad phiaiet

Robert D. Mariani

United States District Court Judge

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