The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEITH A. CELSKY, JR., : CIVIL ACTION NO. 1:18-CV-2416
:
Plaintiff : (Judge Conner)
:
v. :
:
PENNSYLVANIA HIGHER :
EDUCATION ASSISTANCE :
AGENCY, :
:
Defendant :
MEMORANDUM
Plaintiff Keith A. Celsky, Jr., filed this civil rights lawsuit against defendant
Pennsylvania Higher Education Assistance Agency (“PHEAA”). Celsky alleges
discrimination under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§ 12101 et seq. PHEAA moves for summary judgment.
I. Factual Background and Procedural History1
PHEAA is a state agency focused on student financial aid services, primarily
providing loan servicing, financial-aid processing, and other aid programs to
1 Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1.
A party opposing a motion for summary judgment must file a separate statement
of material facts, responding to the numbered paragraphs set forth in the moving
party’s statement and identifying genuine issues to be tried. Id. Unless otherwise
noted, the factual background herein derives from the parties’ Rule 56.1 statements
of material facts. (See Docs. 17, 20). To the extent the parties’ statements are
undisputed or supported by uncontroverted record evidence, the court cites
directly to the Rule 56.1 statements.
millions of students in the Commonwealth.2 It is undisputed that PHEAA is an
“employer” within the meaning of the ADA. (Doc. 17 ¶ 1; Doc. 20 ¶ 1).
Celsky began working for PHEAA in December 2013 as a Customer Service
Representative in PHEAA’s call center. (Doc. 17 ¶¶ 2, 5). In that position, Celsky
answered “regular split” or “technical split” phone calls, which were basic
incoming calls seeking customer service assistance. (Id. ¶ 6). Less than a year later,
Celsky was promoted to Customer Service Representative 1, incorporating the
duties of his prior position with the addition of processing paperwork. (Id. ¶¶ 7-8;
Doc. 15-4 at 139-230, Celsky Dep. 9:12-10:2, 14:24-15:2 [hereinafter “Celsky Dep.”]).
In September 2015, PHEAA promoted Celsky to Customer Service Lead (or
“Lead”), another position within PHEAA’s call center. (Doc. 17 ¶¶ 9-10).
Much of the controversy in this case concerns the job duties of a Customer
Service Lead. PHEAA’s official job description provides that, among other
responsibilities, a Lead will “[p]erform[] lead duties within a work group,” “provide
direct guidance and assistance to Customer Service Representatives 1 and 2,”
“[f]ield customer calls as necessary and act as a resource for the most complex
customer calls,” “[m]onitor calls,” “[p]rovide training and mentoring,” “[i]dentify
broader training needs for individuals and the team,” “[a]ct as a liaison for routine
requests,” and “[a]ssist [the] supervisor in quality assurance review.” (Doc. 15-4 at
19).
2 About PHEAA, PHEAA, http://www.pheaa.org/about/ (last visited September
1, 2020).
Celsky testified that, when he first began working as a Lead, his
responsibilities primarily consisted of helping other representatives find answers to
questions while they were on the phone, processing extensive paperwork, and
mentoring other team members. (Celsky Dep. 15:17-16:1). He estimated that he
took one or two calls a week, “if that,” constituting “maybe five percent” of his work
duties. (Id. at 15:21-22, 16:2-24). Those calls were usually “escalated,” where
customers were looking to speak with a supervisor or “work their way up the chain
of command on the phone.” (Id. at 16:2-10). Over time this breakdown shifted, to
the point where Celsky was taking mostly regular and technical split calls all day
Monday and Tuesday and for several hours a day on Wednesday through Friday,
resulting in “well over 50 to 60, maybe 75 percent” of his time being spent taking
general incoming calls. (Id. at 17:1-18:4, 21:20-23, 35:7-14). Celsky understood this
increase to be the result of “high call volume.” (Id. at 35:15-18)
In May 2016, Celsky received his first notice in a series of disciplinary actions
regarding his work performance. (See generally Doc. 17 ¶¶ 14-17, 19-20, 22-23, 27-
28, 36, 40, 50, 52, 54, 72). Over the following 21 months leading up to his
termination, Celsky received numerous “coachings,” warnings, reprimands, and
escalating discipline due to his refusal to take phone calls and his unauthorized
absences on days when he was expected to field calls. (See id.) Celsky does not
deny receiving the various reprimands and discipline, nor does he challenge
PHEAA’s stated reasons for them. (See Doc. 20 ¶¶ 14-17, 19-20, 22-23, 27-28, 36, 40,
50, 52, 54, 72). Rather, Celsky maintains that his refusal to field calls and his
attendance issues were the result of certain medical conditions—including severe
anxiety and panic attacks—which were particularly acute when having to interact
with customers on the phone. (See Doc. 17 ¶¶ 21, 41, 58; Doc. 20 ¶¶ 49, 79).
Approximately one year into development of his medical issues, Celsky opted
to take medical leave under the Family and Medical Leave Act (“FMLA”). (Doc. 17
¶¶ 30-31). He exhausted that leave during several periods from June to September
2017. (Id. ¶ 31). Upon returning to work, Celsky again began to incur coachings and
reprimands for failing to take calls and for unauthorized absences on call-heavy
Mondays and Tuesdays. (Id. ¶¶ 36, 39-40).
In October 2017, Celsky formally requested a disability accommodation from
PHEAA. (Id. ¶ 38). Specifically, Celsky sought to be excused from “using the phone
to communicate” per the recommendation of his treating physician. (Doc. 15-4 at
281; Doc. 17 ¶ 41). PHEAA denied this request on November 29, 2017, informing
Celsky that “taking phone calls is an essential function of” his job responsibilities.
(Doc. 15-4 at 277). PHEAA explained that it was “willing to discuss and consider
any other suggested reasonable accommodations” Celsky may have “which will
enable [him] to perform the essential functions of [his] position.” (Id.) Celsky was
not disciplined for his absences during the time his accommodation request was
pending. (Doc. 17 ¶¶ 42-43).
Celsky’s pattern of avoiding or refusing phone calls and taking unexcused
absences (as well as receiving progressive discipline for such conduct) continued
throughout late 2017 and into early 2018. (Id. ¶¶ 47-56). Upon PHEAA’s request,
Celsky provided an updated medical status in late January 2018 from his treating
psychotherapist. (Id. ¶¶ 57-58). The paperwork indicated that Celsky suffered from
“generalized anxiety disorder” and “specific phobia” related to phone usage. (Doc.
15-4 at 287-88). According to Celsky’s psychotherapist, “phone work triggers severe
physical anxiety symptoms,” and the duration of this impairment was “[u]nknown”
and could be accommodated by “[l]imited phone work” at that time. (Id. at 288,
290). Celsky’s psychotherapist later clarified this last statement by explaining that
“it would be in [Celsky’s] best interest to not be required to do phone work of any
kind” that exceeded Celsky’s “comfort level.” (Id. at 295). Notably, Celsky admits
that he was simply unable to take any phone calls at that time. (Doc. 17 ¶ 68; Doc.
20 ¶ 68). PHEAA again denied this “no-phone-call” accommodation request
because taking phone calls was an essential function of Celsky’s job. (Doc. 17 ¶¶ 61-
62, 69).
At approximately the same time, Celsky and his superiors began to discuss
transfer to a different position within the agency. (See id. ¶ 73). The parties
disagree on specifics, but it is undisputed that, around November 2017, Celsky
suggested transfer to two part-time paperwork processing positions to replace his
full-time Lead job. (Id. ¶ 80). According to Celsky, this request was denied. (Celsky
Dep. 42:16-43:19). PHEAA asserts that no part-time processing positions existed at
the time and that it directed Celsky to its “Pathways” intranet site, which contained
“all existing, vacant positions within PHEAA.” (Doc. 17 ¶¶ 82, 84). Celsky explicitly
disputes the representation that no such positions were available, (Doc. 20 ¶ 82), but
he acknowledges that he was directed to, and that he used, the Pathways site to
search for job openings, (id. ¶¶ 84, 86).
PHEAA terminated Celsky on February 16, 2018, for “unsatisfactory
attendance.” (Doc. 17 ¶ 72). This termination followed several more incidents
where Celsky refused to take calls, left work early to avoid them, or failed to come to
work at all. (See id. ¶¶ 70-72). Celsky filed a charge of employment discrimination
with the Equal Employment Opportunity Commission (“EEOC”), and the EEOC
issued a right-to-sue letter on October 3, 2018. (Doc. 1 ¶¶ 7-8). In December 2018,
Celsky filed the instant lawsuit asserting a single count of discrimination—alleging
failure to accommodate—under the ADA. (Id. ¶¶ 24-32).3 PHEAA moves for
summary judgment on this claim, and the motion is fully briefed and ripe for
disposition.
II. Legal Standard
Through summary adjudication, the court may dispose of those claims
that do not present a “genuine dispute as to any material fact” and for which a
jury trial would be an empty and unnecessary formality. FED. R. CIV. P. 56(a).
The burden of proof tasks the non-moving party to come forward with “affirmative
evidence, beyond the allegations of the pleadings,” in support of its right to relief.
Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court is to view the evidence “in
the light most favorable to the non-moving party and draw all reasonable inferences
3 Celsky alleges that he cross-filed with the Pennsylvania Human Relations
Commission. (See Doc. 1 ¶ 7). Because his complaint does not assert a claim under
the Pennsylvania Human Relations Act, we confine our discussion to Celsky’s ADA
claim.
in that party’s favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir.
2014). This evidence must be adequate, as a matter of law, to sustain a judgment in
favor of the non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-89 (1986). Only if this threshold is met may the cause of action proceed.
See Pappas, 331 F. Supp. 2d at 315.
III. Discussion
The ADA mandates that an employer may not “discriminate against a
qualified individual on the basis of disability in regard to . . . 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 make out a
prima facie case of discrimination under the ADA, a plaintiff must establish:
(1) he has a disability; (2) he is a “qualified individual”; and (3) the defendant
discriminated against him because of his disability. See Furgess v. Pa. Dep’t of
Corr., 933 F.3d 285, 288-89 (3d Cir. 2019) (citing Chambers ex rel. Chambers v. Sch.
Dist. of Phila. Bd. of Educ., 587 F.3d 176, 189 n.19 (3d Cir. 2009)). In the employment
context, the third prong requires showing an “adverse employment action” taken
by the employer because of the plaintiff’s disability. See Buskirk v. Apollo Metals,
307 F.3d 160, 166 (3d Cir. 2002). The burden of establishing a prima facie case “is
not onerous,” Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 365 (3d Cir. 2008)
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)), and
presents a “low bar” for employment-discrimination plaintiffs, Scheidemantle
v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006)
(citation omitted).
PHEAA’s motion for summary judgment challenges Celsky’s prima facie case
of disability discrimination on two grounds. PHEAA contends that (1) Celsky is not
a “qualified individual” within the meaning of the ADA, and (2) Celsky cannot show
an adverse action taken by PHEAA because of Celsky’s disability. We address each
contention in turn.
A. Qualified Individual
The ADA defines “qualified individual” as “an individual who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
The relevant regulations divide the “qualified individual” analysis into two prongs:
first, “the individual satisfies the requisite skill, experience, education and other
job-related requirements of the employment position such individual holds or
desires,” and second, “with or without reasonable accommodation, [the individual]
can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m).
The gravamen of PHEAA’s first argument is that taking customer calls is an
essential function of the Lead position and, therefore, Celsky was not a qualified
individual because he could not perform this function with or without reasonable
accommodation.4 PHEAA posits that the official written job description, work
4 PHEAA does not contend that Celsky did not satisfy “the requisite skill,
experience, education and other job-related requirements” of the position. (See
Doc. 16 at 16 n.4).
experience of Celsky and other Leads, and reasons underlying Celsky’s promotion
to the position unequivocally establish that fielding calls is an essential function of
the job. Celsky counters primarily by citing to his own experience when he first
took the Lead position, when taking calls consumed only a small percentage of his
time.
Whether a particular duty is an essential function of the employment position
is a fact-intensive inquiry. Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 326 (3d
Cir. 2003). Such a determination must be made on a case-by-case basis considering
all relevant evidence. Id. (quoting Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d
Cir. 1998) (en banc)). Whether a function is “essential” is usually a question of fact
for the jury, see Turner v. Hershey Chocolate U.S., 440 F.3d 604, 613 (3d Cir. 2006),
with no single evidentiary factor being dispositive, see id. at 613 n.6; Skerski v. Time
Warner Cable Co., 257 F.3d 273, 279 (3d Cir. 2001) (citation omitted); Deane, 142
F.3d at 148. However, when the essential requirements of a particular job are not
genuinely disputed, summary judgment may be appropriate. See, e.g., Kieffer
v. CPR Restoration & Cleaning Servs., LLC, 733 F. App’x 632, 636-37 (3d Cir. 2018)
(nonprecedential); Miller v. Univ. of Pittsburgh Med. Ctr., 350 F. App’x 727, 729 (3d
Cir. 2009) (nonprecedential).
ADA regulations define “essential functions” as “the fundamental job duties
of the employment position the individual with a disability holds or desires,”
expressly excluding “marginal functions” of the job. 29 C.F.R. § 1630.2(n)(1). The
attendant regulations provide helpful guidance in determining whether a function
is “essential.” Initially, Section 1630.2(n)(2) provides three nonexhaustive reasons
why a job function may be essential:
• the reason the position exists is to perform that
function;
• the limited number of employees available among
whom the performance of that job function can be
distributed; and/or
• [t]he function may be highly specialized so that the
incumbent in the position is hired for his or her
expertise or ability to perform the particular function.
Id. § 1630.2(n)(2)(I)-(III). Subsection (n)(3) then provides seven nonexhaustive
examples of probative evidence to consider when making an “essential functions”
assessment. That evidence includes
(i) [t]he employer’s judgment as to which functions are
essential; (ii) [w]ritten job descriptions prepared before
advertising or interviewing applicants for the job;
(iii) [t]he amount of time spent on the job performing the
function; (iv) [t]he consequences of not requiring the
incumbent to perform the function; (v) [t]he terms of a
collective bargaining agreement; (vi) [t]he work
experience of past incumbents in the job; and[] (vii) [t]he
current work experience of incumbents in similar jobs.
Id. § 1630.2(n)(3)(i)-(vii).
PHEAA satisfies two of the three reasons provided in subsection (n)(2).
Although the bulk of Celsky’s call responsibilities involved fielding general
customer service calls, he was also required to take escalated calls, for which there
were a limited number of Leads available.5 See id. § 1630.2(n)(2)(II). The record
likewise establishes that one of PHEAA’s primary reasons for promoting Celsky to
the Lead position was his prior experience with, and willingness to handle,
problematic customer service calls. (Doc. 15-4 at 253); 29 C.F.R. § 1630.2(n)(2)(III).
Under subsection (n)(3), PHEAA adduces four of the seven types of evidence
outlined. Obviously, in PHEAA’s judgment, taking calls is an essential function of
the Lead position. (See Doc. 17 ¶¶ 45, 61, 62); 29 C.F.R. § 1630.2(n)(3)(i). The written
job description states that Leads will “[f]ield customer calls as necessary” and
“[s]upport direct operations of the work team (such as customer calls . . . ) as
necessary.” (Doc. 15-4 at 19); see 29 C.F.R. § 1630.2(n)(3)(ii). And Celsky admits
that, during the relevant period in his tenure as a Lead, he was spending “well over
50 to 60, maybe 75 percent” of his time taking calls and other Leads were doing the
same. (Celsky Dep. 17:1-18:4, 21:20-23, 35:11-22); see 29 C.F.R. § 1630.2(n)(3)(iii),
(vii).
Celsky does not dispute any of the evidence adduced by PHEAA. Instead, he
asks us to consider how the Lead role, and particularly the amount of time spent on
the phone, changed over time. (Doc. 19 at 7-8). This argument fails to create a
dispute of fact as to whether taking calls is an essential function of the job. By
Celsky’s own account, he was required to take calls throughout his tenure as a
5 We recognize that PHEAA offered, as an accommodation, to temporarily
relieve Celsky of the responsibility of taking escalated calls so long as he continued
to take his share of general calls. (See Doc. 17 ¶ 77). However, this accommodation
was not permanent, as PHEAA expected Celsky to resume escalated calls at some
point in the near future. (See id.)
Lead. He admits that he fielded some calls when he first took the position and that
he eventually spent as much as 50 to 75 percent of his time answering calls.
Accordingly, Celsky’s own work experience supports, rather than refutes, the
essential nature of taking phone calls. See 29 C.F.R. § 1630.2(n)(3)(vii); see also
Conneen, 334 F.3d at 326. And while it is true that the official job description uses
the qualifier “as necessary,” it is quite clear that fielding phone calls is a critical
function of the Lead. Specifically, the Lead acts as the final stop in calls escalating
through the Call Center system. The only variable in this critical function is
frequency of calls referred to the Lead, which varies with call volume and the
complexity of individual calls.
We recognize that the essential function inquiry is often a jury question. But
in this case, there are no factual issues to be resolved by the jury. Celsky has not
proffered evidence that would create a genuine dispute as to whether taking phone
calls was an essential function of a Lead. Thus, he cannot establish that he was a
“qualified individual” who could perform the essential functions of the Lead
position with or without reasonable accommodation.
B. Adverse Employment Action
Celsky contends that he could have been reasonably accommodated by either
having all phone-call responsibilities reassigned or by being transferred to a
different position. The ADA protects against discriminatory employment actions,
including failure to reasonably accommodate an individual’s disability. See 42
U.S.C. § 12112(b)(5)(A)-(B). An employer’s refusal to make reasonable
accommodations for an employee’s disability or failure to engage in “reasonable
efforts to assist the employee and to communicate with the employee in good faith”
both constitute adverse employment actions. See Colwell v. Rite Aid Corp., 602
F.3d 495, 504 (3d Cir. 2010) (citation omitted). Celsky invokes both failure-to-
accommodate theories.
1. Accommodation Requests
A reasonable accommodation may include, inter alia, “job restructuring,
part-time or modified work schedules, [or] reassignment to a vacant position[.]” 42
U.S.C. § 12111(9)(B). It is the plaintiff’s burden to identify an accommodation, “the
costs of which, facially, do not clearly exceed its benefits.” Skerski, 257 F.3d at 284
(citation omitted). Whether a proposed accommodation is reasonable often
presents a question of fact. Turner, 440 F.3d at 414. Nevertheless, when no jury
could find a requested accommodation reasonable, summary judgment may be
appropriate. Cf. Buskirk, 307 F.3d at 170-71; Miller, 350 F. App’x at 729.
Celsky’s claim regarding a “no-phone-call” accommodation cannot
withstand Rule 56 scrutiny. It is well settled that an employer is not required to
“accommodate an employee by removing an essential function or restructuring a
job so as to avoid it[.]” Skerski, 257 F.3d at 285 n.4 (citing EEOC Interpretive
Guidance, 29 C.F.R. pt. 1630, App. 1630.2(o)); see Donahue v. Consol. Rail Corp., 224
F.3d 226, 232 (3d Cir. 2000). Accommodating Celsky’s request would eviscerate the
role of Customer Service Lead in the Call Center system. Because taking calls is a
critically important function of the Lead position, Celsky’s request to remove phone
work from his duties is per se unreasonable. See Donahue, 224 F.3d at 232.
Celsky’s request for transfer to another position within PHEAA that did not
require phone use is a different matter. It is undisputed that, in or around
November 2017, Celsky requested to be transferred to “two part-time processing
positions” so that he could maintain employment with PHEAA but avoid fielding
phone calls. (Doc. 17 ¶ 80; Doc. 20 ¶¶ 76, 80; Celsky Dep. 42:23-25). According to
Celsky, PHEAA summarily denied this request. (Celsky Dep. 42:16-43:20).
PHEAA does not claim that Celsky would be unqualified for such a position
or that transfer would be too burdensome. Rather, PHEAA asserts that no such
jobs were available. In support of this contention, PHEAA cites paragraph 12 of the
affidavit of Amber Rockwell, PHEAA’s Senior Human Resources Analyst. (See
Doc. 17 ¶ 82 (citing Doc. 15-4 at 3-7, Rockwell Aff. ¶ 12)). However, Rockwell’s
affidavit fails to mention anything about job openings at PHEAA during the specific
time in question. Celsky, on the other hand, has proffered competent evidence that
such part-time positions were available when Celsky made his transfer request.
Specifically, Celsky establishes that PHEAA posted openings for a job called “PART
TIME Records Clerk (3:30PM – 7:30PM)” in June 2017 with two vacancies, and then
again from July to September 2017 with four vacancies. (Doc. 20 ¶ 82; Doc. 20-2 at 7,
9). Accordingly, there is a genuine dispute of material fact regarding whether
Celsky’s accommodation request—transfer to two part-time processing positions—
was reasonable.
Moreover, Celsky argues that, even if no part-time processing positions were
available when he made his request for accommodation, there were similar vacant
full-time positions that PHEAA could have recommended as alternatives. (See Doc.
20 ¶ 89(j), (k), (m)-(r)). PHEAA, “in the face of a request for accommodation,”
cannot simply “sit back passively, offer nothing, and then, in post-termination
litigation, try to knock down every specific accommodation” sought as
unreasonable. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315 (3d Cir. 1999).
Such conduct would run afoul of the interactive process. Id. at 315-16; see infra
Section III(B)(2). Consequently, even if two part-time processing positions were not
available when Celsky made his request, that fact alone would not defeat Celsky’s
failure-to-accommodate claim. PHEAA’s response to Celsky’s transfer request
would still be relevant to determining whether PHEAA acted in good faith in the
interactive process. See Taylor, 184 F.3d at 315-16.
2. Good-Faith Participation in the Interactive Process
Celsky claims that PHEAA violated the ADA by failing to participate in good
faith in the “interactive process.” The interactive process describes the flexible,
informal communication between an employer and employee concerning an
employee’s disability, the limitations resulting from that disability, and “potential
reasonable accommodations that could overcome those limitations.” 29 C.F.R.
§ 1630.2(o)(3); see Taylor, 184 F.3d at 311. A plaintiff pursuing an ADA failure-to-
accommodate claim under a theory of lack of good-faith participation in the
interactive process must demonstrate four elements: (1) the employer knew about
the plaintiff’s disability; (2) the plaintiff requested an accommodation for his
disability; (3) the employer failed to make a good-faith effort to assist the plaintiff in
seeking an accommodation; and (4) the plaintiff “could have been reasonably
accommodated but for the employer’s lack of good faith.” Colwell, 602 F.3d at 504
(citation omitted). In the instant case, the only undisputed element is the first—
PHEAA was aware of Celsky’s disability. As set forth below, there are factual
disputes permeating all of the other elements of Celsky’s claim.
Both employer and employee have a duty to act in good faith and to attempt
to identify an appropriate reasonable accommodation, which could include
“reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B) (emphasis added);
Colwell, 602 F.3d at 507; Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997). Our
court of appeals has held that employers can demonstrate “good faith” by taking
such steps as “meet[ing] with the employee who requests an accommodation,
request[ing] information about the condition and what limitations the employee
has, ask[ing] the employee what he or she specifically wants, show[ing] some signs
of having considered [the] employee’s request, and offer[ing] to discuss available
alternatives when the request is too burdensome.” Taylor, 184 F.3d at 317.
Celsky asserts that PHEAA acted in bad faith by failing to offer him other
open positions within the agency. Celsky points to several vacant positions—
including Records Clerk, Records Associate 1, and Commercial Adjustment
Processing Clerk—for which he was purportedly qualified. (See Doc. 20 ¶ 89 &
citations). He alleges that PHEAA’s conduct fell short because PHEAA merely
directed him to the Pathways intranet site and “never suggested any vacant,
existing positions at PHEAA . . . for potential reassignment.” (Id. ¶ 88).
PHEAA denies any bad faith on its part. It rejoins that it held multiple
meetings with Celsky to discuss possible accommodations, asked him for other
proposed reasonable accommodations when it declined his “no-phone-call” request,
offered to modify his break schedule and to temporarily remove escalated calls from
his duties, and directed him to Pathways to find vacant positions for possible
transfer. (See Doc. 15-4 at 78-79 (reviewing steps taken by PHEAA in interactive
process); Doc. 17 ¶¶ 80-84).
Although an employer may exhibit bad faith by failing to participate at all in
identifying potential transfer positions, see Mengine, 114 F.3d at 420, Celsky’s claim
is more nuanced: he claims that PHEAA fell short in its reasonable accommodation
obligations by failing to take the affirmative step of offering specific reassignment
alternatives. Whether PHEAA’s failure to make Celsky a specific job reassignment
offer constitutes a failure to accommodate cannot be determined on the present
record because the parties disagree on what transpired when Celsky raised the
issue of reassignment.
PHEAA apparently sought input from Celsky regarding possible
reassignments and suggested that Celsky utilize Pathways, which contained a
comprehensive list of open positions within the agency. Yet, PHEAA’s response—
which is not well developed in the Rule 56 record—to Celsky’s specific request for
two part-time processing positions raises a number of factual issues regarding the
interactive process: (1) Who first raised the possibility of reassignment and when
did that occur? (2) What was the response to the request for reassignment and
when did that occur? (3) Were there vacant positions at the time of the parties’
initial discussions about reassignment and how long did the positions stay open?
(4) Did PHEAA offer any assistance to Celsky other than a referral to the Pathways
portal? (5) Did Celsky enter the Pathways portal after prompting to determine
specific job opportunities and attempt to apply for any positions? (6) Are there
clearly established policies when seeking reassignment through the Pathways
portal, such as filling out an application? (7) Did PHEAA make any affirmative
representations to Celsky about reassignment to a new position such as a promise
to transfer subject to completion of the application process or a review of
qualification? (8) In general, what were the parties’ expectations with respect to
Celsky’s use of the Pathways portal to identify potential employment alternatives?
These questions and more abound relevant to whether each party participated in
good faith during the interactive process.
The court concludes that there are genuine factual disputes about both
parties’ conduct during the interactive process, specifically on the issue of transfer
to a new position. When there is a genuine dispute about good faith, “summary
judgment will typically be precluded.” Taylor, 184 F.3d at 318 (citation omitted).
Such is the case with Celsky’s failure-to-accommodate claim.
IV. Conclusion
We will grant in part and deny in part PHEAA’s motion for summary
judgment. We will grant PHEAA’s Rule 56 motion to the extent that we find that
taking phone calls is an “essential function” of the Lead position. We will deny
PHEAA’s motion in all other respects. An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: September 10, 2020