WALKER v. PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

TERESA L. WALKER, )

)

Plaintiff, )

) Civil A. No. 19-41

v. ) Judge Nora Barry Fischer

)

PENNSYLVANIA DEPARTMENT OF )

LABOR AND INDUSTRY, )

)

Defendant. )

MEMORANDUM ORDER

I. BACKGROUND

In this employment discrimination case, Plaintiff Teresa Walker (“Plaintiff”) contends

that Defendant Pennsylvania Department of Labor and Industry (“Defendant”), failed to provide

a reasonable accommodation for her disabilities in violation of Section 504 of the Rehabilitation

Act. (Docket Nos. 1; 34; 54). Plaintiff asserts that she was wrongly terminated for calling off

work on October 1, 2, and 3, 2018 due to her epilepsy and asthma conditions and was not

provided with what she believes is a reasonable accommodation of converting her absences

without leave (“AW”) to excused (“AO”) absences. (Id.). Defendant counters that she was

dismissed for violating its attendance policies because she was a probationary employee who

was not entitled to take AW leave and had fully exhausted her available sick leave prior to

calling off work for three consecutive days in October. (Docket Nos. 10; 47). Defendant further

points out that Plaintiff did not specifically request an accommodation from the attendance

policy and was previously afforded accommodations for other absences which were excused.

(Id.).

Presently before the Court is Plaintiff’s partial motion for summary judgment, which is

opposed by Defendant. (Docket Nos. 32; 47). The pending motion has been fully briefed in

accordance with Local Rule 56.1, with the parties submitting the required briefs, concise

statements of material facts, responses, a reply and the necessary appendices. (See Docket Nos.

32-34; 36; 47-49; 54-55). The Court heard oral argument on April 8, 2020, the official

transcript of which was filed on May 8, 2020. (Docket Nos. 58; 59). The parties declined to

submit any supplemental briefing. (Docket No. 58). After careful consideration of the parties’

arguments and evaluating the evidence of record in accord with the appropriate standard

governing motions for summary judgment, and for the following reasons, Plaintiff’s Motion [32]

is granted, in part, and denied, in part.

II. LEGAL STANDARD

Because the Court writes primarily for the parties, who are familiar with the facts, the

Court will not exhaustively discuss same here. Instead, the Court begins with the governing

legal standard. It is well-established that summary judgment is appropriately entered “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(a). “A fact is material if it might affect the

outcome of the suit under the governing law.” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir.

2013) (citation omitted). In deciding a motion for summary judgment, the Court’s function is

not to weigh the evidence, to determine the truth of the matter, or to evaluate credibility. See

Montone v. City of Jersey City, et al., 709 F.3d 181 (3d Cir. 2013). Rather, the Court is only to

determine whether the evidence of record is such that a reasonable jury could return a verdict for

the non-moving party. Id. In evaluating the evidence, the Court must interpret the facts in the

light most favorable to the non-moving party and draw all reasonable inferences in its favor.

Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007).

“Where the party moving for summary judgment is the plaintiff, or the party who bears

the burden of proof at trial, the standard is more stringent.” Nat'l State Bank v. Fed. Reserve

Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992). “[I]t is inappropriate to grant summary

judgment in favor of a moving party who bears the burden of proof at trial unless a reasonable

juror would be compelled to find [her] way on the facts needed to rule in [her] favor on the law.”

El v. Se. Pennsylvania Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007).

After all, the burden of proof includes the obligation to persuade

the factfinder that one's propositions of fact are indeed true. Black's

Law Dictionary 190 (7th ed.1999). Thus, if there is a chance that a

reasonable factfinder would not accept a moving party's necessary

propositions of fact, pre-trial judgment cannot be granted. Specious

objections will not, of course, defeat a motion for summary

judgment, but real questions about credibility, gaps in the

evidence, and doubts as to the sufficiency of the movant's proof,

will.

Id.

III. DISCUSSION

In her motion, Plaintiff argues that she is entitled to summary judgment on her failure to

accommodate claim and the affirmative defense of undue hardship asserted by Defendant.

(Docket Nos. 34; 54). On the former point, Plaintiff admits that she did not make a specific

request for an accommodation that her AW absences be converted to excused absences but

contends that summary judgment is appropriate because she has established a prima facie case

and there are no genuine disputes of material facts. (Id.). As to the latter issue, Plaintiff

maintains that Defendant has failed to plead the affirmative defense of undue hardship and has

not presented any evidence supporting such defense at this stage of the proceedings. (Id.).

Defendant counters that genuine disputes of material fact preclude summary judgment on

Plaintiff’s failure to accommodate claim. (Docket No. 47). While Defendant initially contested

the motion challenging the sufficiency of the evidence supporting the undue hardship defense, its

counsel conceded that the defense lacked evidentiary support at oral argument. (See Docket Nos

47 at 3-4; 59 at 23). Having carefully considered the parties’ positions, Plaintiff’s Motion is

granted, part and denied, in part.

The elements Plaintiff will be required to prove to prevail at trial are well-established.

A plaintiff bringing [a] failure-to-accommodate claim must

establish: “(1) [she] was disabled and [her] employer knew it; (2)

[she] requested an accommodation or assistance; (3) [her]

employer did not make a good faith effort to assist; and (4) [she]

could have been reasonably accommodated.”

Capps v. Mondelez Glob., LLC, 847 F.3d 144, 157 (3d Cir. 2017) (quoting Armstrong v.

Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246 (3d Cir. 2006)); see also Watson v. Wilkie,

2019 WL 2191781, at *3 (W.D. Pa. May 21, 2019) (Fischer, J) (applying same elements to

Rehabilitation Act claim for failure to accommodate due to disability claim). Regarding the

second and third elements, the Third Circuit has clarified that:

an employer has a duty to provide reasonable accommodations to

people with disabilities. See Colwell v. Rite Aid Corp., 602 F.3d

495, 504–05 (3d Cir. 2010). The employer can breach this duty by

failing to provide an accommodation that is reasonable or by

failing to engage in a good faith interactive process to identify

accommodations. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296,

317–18 (3d Cir. 1999). In regard to the interactive process, this

Court has explained that “if it appears that the employee may need

an accommodation but doesn’t know how to ask for it, the

employer should do what it can to help.” Conneen v. MBNA Am.

Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003). In short, an

employee has no obligation to unilaterally identify and propose a

reasonable accommodation. See Taylor, 184 F.3d at 315–17.

“[W]here there is a genuine dispute about whether the employer

acted in good faith, summary judgment will typically be

precluded.” Id. at 318.

Lewis v. Univ. of Pennsylvania, 779 F. App’x 920, 923 (3d Cir. 2019). Finally, as to the fourth

element, “‘[t]he question of whether a proposed accommodation is reasonable is a question of

fact,’” to be resolved by the jury. Id. at 923 (quoting Turner v. Hershey Chocolate U.S., 440 F.3d

604, 611 n.4 (3d Cir. 2006)) (further quotation omitted).

In this Court’s estimation, Plaintiff has failed to meet her “stringent” burden to establish

that she is entitled to judgment as a matter of law on her failure to accommodate claim upon

which she bears the burden of proof at trial because there are genuine disputes of material fact in

the record. See Nat'l State Bank, 979 F.2d at 1582. While the parties do not generally debate

Plaintiff’s status as a qualifying individual with a disability due to her epilepsy and asthma

conditions, they clearly contest whether such ailments required her to call off work on October 1,

2, and 3, 2018. (See Docket Nos. 33 at ¶ 44; 48 at ¶ 44). As such, Plaintiff has not shown that a

reasonable jury would be “compelled” to conclude that she was unable to work on the first three

days of October due to her disabilities and there is a “real chance” that a jury may reject her

position given the gaps in the evidence which raise credibility questions for the jury to consider.

El, 479 F.3d at 238. Indeed, Plaintiff’s evidence supporting her October absences is subject to

significant impeachment based on the doctor’s excuse from her October 1, 2018 emergency

room visit. See id.

To this end, the parties’ evidentiary submissions reveal the following:

• Plaintiff cites to ¶¶ 5-6 of her declaration in support of the

factual assertions that she “missed work on October 1, 2, and 3,

2018 to recover from her seizure, as well as her asthma

condition” but nowhere in her seven paragraph declaration

does she reference the October absences specifically nor does

she state that the absences were necessary due to her

disabilities or recovery, (see Pl. Ex. 7, Docket No. 36-7);

• Plaintiff was not directly asked about the need for the October

1, 2, and 3, 2018 absences at her deposition, (Docket No. 54 at

2, n.1 (“Notably, Defendant’s counsel failed to ask Walker

during her deposition why she missed work from October 1-

3.”));

• The doctor’s excuse upon which she relies from attending

physician Dr. Michael Barton, MD of UPMC Passavant

Emergency Department dated October 1, 2018 states that

“[t]his notice verifies that your employee Teresa Walker, was

seen in this facility on 10/01/2018. He/she may return to work

within 1 to 2 Days with No Restrictions.” (Pl. Ex. 16, Docket

No. 36-16); and,

• Plaintiff did not return to work until three days later on October

4, 2018, (Docket Nos. 33 at ¶ 47; 48 at ¶ 47).

Certainly, a reasonable jury may question why Plaintiff called off work on October 2, and 3,

2018 when the doctor’s note of October 1, 2018 plainly states that she may return to work within

1-2 days without any restrictions, i.e., her doctor opined that she could have returned to work on

October 2 or 3, 2018 but she did not go back until October 4, 2018. (Docket Nos. 33 at ¶ 44; 48

at ¶ 44; 36-7; 36-16); see also Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751,

772 (3d Cir. 2004) (a “plaintiff in a disability discrimination case who claims that the defendant

engaged in discrimination by failing to make a reasonable accommodation cannot recover

without showing that a reasonable accommodation was possible.”). All told, the credibility of

such evidence must be weighed by a jury and the same prevents Plaintiff from winning summary

judgment on a claim for which she bears the burden of proof at trial. See El, 479 F.3d at 238.

Beyond these factual disputes, Plaintiff also admits that she did not make a specific

request for an accommodation and claims that Defendant failed to engage in the interactive

process with her in good faith and did not offer what she believes is a reasonable accommodation

of designating her AW absences as excused AO absences. (Docket Nos. 34; 54). But, the

prevailing caselaw establishes that genuine disputes as to both the reasonableness of a proposed

accommodation and a defendant’s good faith participation in the interactive process should be

resolved by a jury. See e.g., Taylor, 184 F.3d at 318 (“[W]here there is a genuine dispute about

whether the employer acted in good faith, summary judgment will typically be precluded.”);

Turner, 440 F.3d at 611 n.4 (“[t]he question of whether a proposed accommodation is reasonable

is a question of fact.”); Lewis, 779 F. App’x at 923 (quoting same). The submission of those

contested issues to the jury is particularly appropriate in this case given the underlying factual

disputes as to whether Plaintiff’s absences on October 2, and 3, 2018 were medically necessary

or not. (Docket Nos. 33 at ¶ 44; 48 at ¶ 44; 36-7; 36-16). Hence, this Court cannot make the

requisite finding that a reasonable jury would be compelled to reach a verdict that Defendant did

not act in good faith and that Plaintiff’s proposed accommodation is reasonable. See El, 479

F.3d at 238.

Accordingly, Plaintiff’s motion for partial summary judgment on her failure to

accommodate claim is denied.

Plaintiff also seeks summary judgment on Defendant’s affirmative defense of undue

hardship. (Docket Nos. 34; 54). To prove such defense, an employer must demonstrate by a

preponderance of the evidence that accepting the proposed accommodation would be an undue

hardship on the operation of its business. See Turner, 440 F.3d at 614 (“If Turner has made out a

prima facie showing, the burden then shifts to Hershey to prove, as an affirmative defense, that

the accommodations requested by Turner are unreasonable, or would cause an undue hardship on

the employer.”); see also 42 U.S.C. § 12112(b)(5)(A) (an employer must make “reasonable

accommodations to the known physical or mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee, unless such covered entity can demonstrate

that the accommodation would impose an undue hardship on the operation of the business of

such covered entity.”). During oral argument, defense counsel expressly conceded that the

defense of undue hardship is not supported by the record. (See Docket No. 59 at 23 (“I do agree

with [Plaintiff’s counsel] that I don't believe the record in its current state would support that

defense [of undue hardship]. There's no evidence put forth by the Commonwealth that would

support that defense.”)). Having reviewed the record in light most favorable to Defendant, the

Court agrees that such defense lacks evidentiary support and finds that summary judgment is

appropriately entered in favor of Plaintiff and against Defendant on the affirmative defense of

undue hardship.

For all of these reasons,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Partial Summary Judgment [32] is

granted, in part and denied, in part. Said Motion is granted as to the defense of undue hardship

but denied in all other respects; and,

IT IS FURTHER ORDERED that Plaintiff shall file her Pretrial Statement by May 28,

2020 and Defendant shall file its Pretrial Statement by June 11, 2020. The parties’ Pretrial

Statements shall conform to the requirements of Local Civil Rule 16.C.1.

s/Nora Barry Fischer

Nora Barry Fischer

Senior U.S. District Judge

Date: May 13, 2020

cc/ecf: All counsel of record.