SIMON v. UPMC MERCY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BONNIE SIMON, )

)

Plaintiff, ) 2:20-cv-193-NR

)

v. )

)

UPMC MERCY, )

)

)

Defendant. )

MEMORANDUM OPINION

J. Nicholas Ranjan, United States District Judge

Plaintiff Bonnie Simon brings this case under the Americans with Disabilities

Act, 42 U.S.C. § 12101, et seq. Mrs. Simon formerly worked as a Lead Patient Care

Technician at UPMC Mercy hospital. She alleges that UPMC failed to make

reasonable accommodations for her various disabling conditions, and that the

hospital failed to engage in the required interactive process for her accommodation

requests.

Mrs. Simon requested two accommodations. She asked that she not have to

work consecutive 12-hour shifts and that UPMC transfer her to another position. As

Mrs. Simon tells it, these accommodations were never granted. As a result, her

performance suffered and UPMC eventually terminated her.

UPMC moves for summary judgment on Mrs. Simon’s ADA claim for four

reasons. First, UPMC argues that Mrs. Simon released her ADA claim while settling

her separate workers’ compensation claim. Second, it argues Mrs. Simon failed to

properly exhaust her administrative remedies because she did not timely submit her

charge of discrimination to the Equal Employment Opportunity Commission. Third,

it argues that Mrs. Simon is judicially estopped from bringing her ADA claim because

of allegedly contradictory statements she made about her ability to perform the key

functions of her job on her application for Social Security Disability Insurance.

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Fourth, it argues that Mrs. Simon is not a “qualified individual” under the ADA—

that is, she could not adequately perform the duties of her job with or without an

accommodation and that her request to transfer to another position was

unreasonable.

Applying the familiar standard of Federal Rule of Civil Procedure 56,1 the

Court will deny UPMC’s motion. As a matter of law, Mrs. Simon did not release the

ADA claim she is bringing in this case. Nor is she judicially estopped from bringing

it. As for UPMC’s remaining two arguments, genuine issues of material fact preclude

a grant of summary judgment.

DISCUSSION & ANALYSIS2

I. Mrs. Simon did not release her ADA claim.

UPMC argues that Mrs. Simon’s signing of a Compromise and Release

Agreement releasing her workers’ compensation claim waived her right to pursue her

ADA claim. ECF 28, pp. 11-16. This argument, however, misses the mark given the

Third Circuit’s decision in Zuber v. Boscov’s, 871 F.3d 255 (3d Cir. 2017).

In Zuber, the Third Circuit held that a substantially similar C&R did not

release claims against an employer under the Family and Medical Leave Act or

1 Summary judgment is appropriate “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). At summary judgment, the Court must ask whether the

evidence presents “a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In making this determination,

“all reasonable inferences from the record must be drawn in favor of the nonmoving

party and the court may not weigh the evidence or assess credibility.” Goldenstein v.

Repossessors, Inc., 815 F.3d 142, 146 (3d Cir. 2016) (cleaned up). The moving party

bears the initial burden to show the lack of a genuine dispute of material fact, and “if

the evidence is such that a reasonable jury could return a verdict for the nonmoving

party,” summary judgment is improper. Id. (cleaned up).

2 The Court primarily writes for the benefit of the parties, who are familiar with the

factual and procedural background, as well as the record evidence.

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Pennsylvania common law. Id. at 259-60. The language of the Zuber C&R stated

that it was “intend[ed] … to be a full and final resolution of all aspects of the … alleged

and its sequela whether known or unknown at this time.” Id. at

259 (emphasis added). According to the Third Circuit, that sentence only prohibited

the plaintiff from suing for other work injury claims—it did not prevent him from

suing for violations of his rights under the FMLA. Id.

The plaintiff in Zuber also relinquished: “all rights to seek any and all past,

present, and/or future benefits, including, but not limited to, wage loss benefits,

specific loss benefits, disfigurement [sic] benefits, medical benefits or any other

monies of any kind including, but not limited to, interests, costs, attorney’s fees,

and/or penalties for or in connection with the alleged … work injury claim as well as

any other work injury claim(s) Employee may have[.]” Id. The court likewise

concluded that this provision only limited the plaintiff’s relinquishment of “benefits”

and “monies” to work injury claims—not FMLA or common law claims. Id. at 259-

60.

There is no material difference between the various C&R provisions examined

in Zuber and the ones present here. As was the case in Zuber, the C&R Mrs. Simon

signed provides that she and UPMC intended to “resolve and settle the Claimant’s

December 5, 2017 workers’ compensation claim.” ECF 29-1, Ex. P, ¶ 10. And the

release was limited to “any and all liability for any and all benefits of whatever kind

or classification [.]” Id. at

¶ 16(2) (emphasis added). Consistent with this intention, the C&R states that it

covered and resolved “any and all liability to pay for any and all past, present, and/or

future wage loss, specific loss, disfigurement, and medical benefits related to the

December 5, 2017 work injury” (id. at ¶ 10), and “any and all known injuries, other

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than the December 5, 2017 work injury, whether mental or physical, that the

Claimant sustained, or may have sustained, while employed by [UPMC]” (id. at ¶ 4).

Mrs. Simon’s complaint, though, “does not concern a ‘work injury claim,’ but

rather [UPMC’s] purported failure to provide reasonable accommodation for [her]

disability[.]” Bing v. Iron Mountain Secure Shredding, Inc., No. 17-4191, 2018 WL

466456, at *2 (E.D. Pa. Jan. 18, 2018). Thus, the language of the C&R “cannot be

read as a release of claims for … failure to accommodate under the ADA.” Id. at *3.

That’s because the “gist of the C&R” was “to resolve entitlement to work-injury

benefits, not other types of legal claims [Mrs. Simon] may have had.” Id. (citation

omitted). This conclusion is reinforced by the fact that “[t]here is no reference to

releasing ADA or PHRA claims anywhere in the C&R.” Canfield v. Movie Tavern,

Inc., No. 13-3484, 2013 WL 6506320, at *2 (E.D. Pa. Dec. 12, 2013) (denying motion

to dismiss ADA claim based on waiver argument).

UPMC mainly relies on two cases to argue that the C&R’s release language is

broad enough to encompass Mrs. Simon’s claims in this case. See ECF 28, p. 13 (citing

Hoggard v. Catch, Inc., No. 12-4783, 2013 WL 3430885 (E.D. Pa. July 9, 2013) and

Flynn v. Fed. Exp., No. 07-2455, 2008 WL 2188549 (E.D. Pa. May 23, 2008)). These

cases, however, were both decided before the Third Circuit’s decision in Zuber. But

even putting that fact aside, both cases are distinguishable. The release language in

Flynn was broader than the language presented here because it generally released

“all past, present and future liability,” without the many qualifiers present in the

C&R at issue in this case. 2008 WL 2188549, at *3. In Hoggard, the release

provisions lacked language limiting its scope to workplace injuries. 2013 WL

3430885, at *3-4.

Given the language of the C&R, the Court finds that “the relinquishment of

[Mrs. Simon’s] rights is cabined to benefits from a work injury claim, not rights that

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arise under the ADA.” Bing, 2018 WL 466456, at *3 (citation omitted). Mrs. Simon

has therefore not released her ADA claim in this case.

II. There is a genuine dispute of material fact about whether Mrs. Simon

timely filed her EEOC charge.

UPMC also argues that the Court should grant summary judgment because

“Mrs. Simon failed to exhaust her administrative remedy.” ECF 28, p. 10. This is so,

according to UPMC, because Mrs. Simon filed her charge of discrimination with the

EEOC too late. Id. at pp. 8-11. Mrs. Simon counters that she did file the charge on

time, but because of an “administrative error at the EEOC,” her original charge was

lost. ECF 32, pp. 8-10. The record reveals that there is a genuine dispute of material

fact about the timeliness of her charge submission, so summary judgment is not

appropriate.

Before suing in federal court, a plaintiff alleging an ADA violation must

exhaust his or her administrative remedies with the EEOC. See Robinson v. Consol

Pa. Coal Co., 425 F. Supp. 3d 433, 441-42 (W.D. Pa. 2019) (Ranjan, J.). In

Pennsylvania, a verified charge under the ADA must be filed with the EEOC within

300 days of the alleged unlawful employment practice. Simko v. U.S. Steel Corp., No.

19-765, 2019 WL 6828421, at *3 (W.D. Pa. Dec. 13, 2019) (Conti, J.) (citations

omitted). That limitations period is measured from the date the employer informed

the employee of his or her termination. Id. (citations omitted).

UPMC notified Mrs. Simon of her termination on April 27, 2018. ECF 29-4.

Mrs. Simon’s deadline to file her EEOC charge was therefore February 21, 2019 (i.e.,

300 days from April 27, 2018). It is undisputed that the EEOC received a copy of the

charge on March 28, 2019. ECF 28, p. 9; ECF 32, p. 9. What is disputed is whether

Mrs. Simon produced enough evidence to create a genuine dispute of material fact

over whether she mailed a copy of the charge to the EEOC before the February 21

deadline and, through no fault of her own, the EEOC failed to mark it “received.”

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On this score, Mrs. Simon has offered five pieces of evidence. First, she points

to a printout of her counsel’s calendar that suggests he met with her on February 11,

2019. ECF 29-1, Ex. L. Second, she cites document metadata that reflects her counsel

created a file on February 11, 2019, that appears to be the cover letter and charge her

counsel purportedly sent to the EEOC. ECF 29-1, Ex. J. Third, she notes that the

original charge that she signed was dated February 11, 2019. ECF 29-1, Ex. 32.

Fourth, she offers a USPS postal receipt that says that something was mailed to the

EEOC on her behalf on February 11, 2019. ECF 29-1, Ex. K. Fifth, she notes that

the EEOC did not dismiss her charge as untimely, which is an option on the form that

the EEOC returns. ECF 29-1, Ex. N.

Construed in the light most favorable to Mrs. Simon, this evidence allows the

reasonable inferences that: (1) Mrs. Simon met with her counsel on February 11,

2019; (2) Mrs. Simon signed the EEOC charge at that meeting on February 11, 2019;

(3) counsel placed something in the mail to the EEOC on February 11, 2019; and (4)

the EEOC decided not to dismiss the charge as untimely. That is enough to put this

issue to a jury.

To be sure, UPMC has offered contradictory evidence about when the EEOC

received the charge. Deborah Kane, the Director of the Pittsburgh Area Office of the

EEOC, submitted a declaration stating that the EEOC date-stamped Mrs. Simon’s

charge as “received” on March 28, 2019, and that the EEOC’s electronic case-

management system does not show that Mrs. Simon tried to file before then. ECF

29-1, Ex. O, Kane Decl., ¶¶ 13-14. Ms. Kane also testified that it was the “regular

practice” of her office to “date-stamp each hard-copy, paper document related to a

charge of discrimination that it received[.]” Id. at ¶ 16. All that could be true, but

it’s not for the Court to weigh Ms. Kane’s testimony against the contradictory

evidence presented by Mrs. Simon.

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In sum, “[b]ecause a reasonable factfinder could weigh the evidence in this case

and conclude that the EEOC received [Mrs. Simon’s] charge but simply lost,

misplaced, or otherwise failed to timely process it, summary judgment [i]s

inappropriate.” Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 479 (7th Cir. 2009).

III. Mrs. Simon is not judicially estopped from bringing her ADA claim.

According to UPMC, Mrs. Simon is estopped from asserting her ADA claim,

because she cannot reconcile her statements to the Social Security Administration

and the statements she makes in support of her ADA claim. ECF 28, p. 18. On her

application for SSDI, Mrs. Simon wrote that “her employer terminated her

employment due to her inability to perform her job as a result of her injury.” ECF

29-1, Baillie Dec. Ex. C, Simon SSDI Application, p. 22. UPMC believes that “[t]his

admission estops Mrs. Simon from now claiming that she was able to perform her job

without further explanation.” ECF 28, p. 18. The Court does not agree.

The Third Circuit has explained that “a plaintiff’s prior sworn assertion in an

application for SSDI benefits that [she] is, for example, unable to work will appear to

negate an essential element of [her] ADA case.” Ehnert v. Washington Penn Plastic

Co., 812 F. App’x 71, 74 (3d Cir. 2020) (cleaned up). When presented with this

situation, the Court must first ask “whether the representations advanced by that

plaintiff in [her] SSDI application and [her] ADA claim genuinely conflict.” Id.

(cleaned up). If the representations are “patently inconsistent,” the court must then

examine “whether the plaintiff has adequately reconciled the two positions.” Id. at

74-75 (citation omitted). UPMC’s argument falls short because Mrs. Simon’s

representations in her SSDI application and in support of her ADA claim do not

actually conflict.

In her application, Mrs. Simon only contends that UPMC terminated her “due

to her inability to perform following her injury.” That’s fundamentally different from

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her allegation here that she could have performed if UPMC had granted and honored

her requested accommodation. ECF 29-1, Baillie Dec. Ex. C, Simon SSDI Application,

p. 22. Indeed, that allegation is irrelevant to the determination of eligibility for SSDI.

See Gucker v. U.S. Steel Corp., No. 13-583, 2015 WL 3693429, at *3 (W.D. Pa. June

12, 2015) (Fischer, J.) (“[W]hile the ADA considers whether a plaintiff can perform

[her] job with reasonable accommodations, the SSA does not take such

accommodations into account[.]”). Given that, the Court finds that Mrs. Simon’s

statements in her SSDI application do not conflict with her ADA claim that she could

perform the essential functions of her previous job with reasonable accommodation,

so “judicial estoppel does not bar [her] ADA claim.” Id. at *5.

IV. There is a genuine dispute of material fact about whether Mrs. Simon

is a “qualified individual” under the ADA.

Lastly, UPMC argues that Mrs. Simon cannot establish her prima facie claim

of discrimination. ECF 28, pp. 16-22. “To make out a prima facie case under the

ADA, a plaintiff must establish that s/he (1) has a disability, (2) is a qualified

individual, and (3) has suffered an adverse employment decision as a result of that

disability.” Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001)

(cleaned up). UPMC does not dispute the first and third elements—that is, UPMC

concedes that Mrs. Simon was “disabled” and suffered an “adverse employment

action” under the statute. ECF 28, pp. 16-22. Instead, UPMC only argues that Mrs.

Simon has not established she is a “qualified individual,” because she failed to present

evidence that she was “able to perform the essential job functions of a Lead Patient

Care Technician without additional reasonable accommodation, and she has not

identified a reasonable accommodation which would have enabled her to perform the

job with the accommodation.” Id. at p. 17. The Court finds, however, that Mrs. Simon

has offered enough evidence to create a genuine dispute of material fact that she could

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have performed her job with the reasonable accommodation of not working

consecutive 12-hour shifts.

A “qualified individual” is someone “who, with or without reasonable

accommodation, can perform the essential functions of the employment position that

such individual holds or desires.” Skerski, 257 F.3d at 278. To meet her burden of

proving she is a qualified individual, Mrs. Simon must satisfy two requirements.

First, she must “demonstrate that [she] satisfies the requisite skill, experience,

education and other job-related requirements of the employment position that such

individual holds or desires.” Id. (cleaned up). Second, she must show that, with or

without reasonable accommodation, she “can perform the essential functions of the

position held or sought.” Id. “The determination of whether an individual with a

disability is qualified is made at the time of the employment decision.” Gaul v. Lucent

Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998).

UPMC assumes at this stage that Mrs. Simon meets the first requirement

because she had the skill, experience, and education to perform the job as a Lead

Patient Care Technician. ECF 28, p. 17. As a result, this case comes down to the

second prong.

That second prong itself requires “another two-part inquiry.” Skerski, 257 F.3d

at 278. First, the Court must determine whether Mrs. Simon “can perform the

essential functions of [her] job without accommodation.” Id. (emphasis in original).

If she can, then she’s a qualified individual. If she can’t, then the Court “must then

inquire whether [she] can perform those same functions with a reasonable

accommodation.” Id. (emphasis in original).

To begin with, there is no genuine dispute on this record as to the essential

functions of Mrs. Simon’s job as a Lead Patient Care Technician. That position

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required Mrs. Simon to perform patient rounds, which included documenting

patients’ blood glucose levels, weights, and vital signs; bathing patients; and

monitoring their nutrition and mobility. ECF 29-6, Simon Dep., 184-18-185:14. Mrs.

Simon was also expected to provide “follow-up with nursing staff throughout the

shift,” obtain reports from bedside nurses “to maintain organization throughout the

shift,” and “follow through with each task” asked of her. Id. at 185:15-189:2.

Mrs. Simon concedes that she couldn’t perform these essential functions

accommodation. ECF 32, pp. 15-18. She therefore “cannot be considered a

‘qualified individual’ under this definition.” Rice v. Erie Indem. Co., No. 06-176, 2008

WL 11509304, at *13 (W.D. Pa. Sept. 30, 2008) (McLaughlin, J.). So this case

ultimately turns on whether Mrs. Simon has marshaled enough evidence to establish

that she could perform the essential functions of her job one of her two proposed

accommodations. She has done so for one of them, so summary judgment is not

warranted.

On the issue of performing with a reasonable accommodation, “the plaintiff

bears only the burden of identifying an accommodation, the costs of which, facially,

do not clearly exceed its benefits.” Skerski, 257 F.3d at 284 (cleaned up). “Summary

judgment may be granted for a defendant only in cases in which the plaintiff’s

proposal is either clearly ineffective or outlandishly costly.” Id. (cleaned up) (emphasis

in original).

There is a genuine dispute of material fact as to whether Mrs. Simon could

perform the essential functions of a Patient Care Technician if she did not have to

work consecutive 12-hour shifts. Indeed, every aspect of this accommodation request

and its potential effect on Mrs. Simon’s performance is mired in factual uncertainty

and dispute.

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For example, the parties do not agree about when Mrs. Simon first

communicated her accommodation request to UPMC. She claims it happened in

August 2017 (ECF 29-6, Simon Dep., 154:14-155:11); UPMC claims it didn’t happen

until December 2017 (ECF 28, p. 2). The parties further dispute whether UPMC ever

truly granted this accommodation. Mrs. Simon claims that it was only “granted on

paper,” because even after UPMC claims it granted her request, she continued to

work consecutive shifts. ECF 32, pp. 1, 15. UPMC counters that it did grant and

honor this accommodation for a time, and only stopped when Mrs. Simon withdrew

her request. ECF 28, pp. 21-22. Finally, the parties take drastically different

positions on whether the accommodation would have mattered for Mrs. Simon’s

performance. Mrs. Simon claims she was “qualified to continue working in her

position with days off between shifts.” ECF 32, p. 15. But UPMC counters that “Mrs.

Simon was unable to perform her job satisfactorily whether she worked back-to-back

shifts or had a day off in between shifts.” ECF 33, p. 8. There is conflicting evidence

on this point. UPMC did give Mrs. Simon a lukewarm annual review and placed her

on a performance improvement plan leading up to her termination, but the reports

while she was on that plan, including during the time her request for non-consecutive

shifts was supposedly honored, are inconclusive. See ECF 29-4, pp. 54, 56, 58. And

Mrs. Simon claims that, before her injury, she “performed perfectly” and had been

given several awards. ECF 29-6, Simon Dep., 100:2, 184:4-7.

“This Court is not free to weigh the dueling versions of the facts, which is the

essence of [UPMC’s] Motion for Summary Judgment.” See, e.g., Logsdon v. Univ. of

Pittsburgh Med. Ctr., No. 17-1634, 2018 WL 10230686, at *2 (W.D. Pa. Sept. 18, 2018)

(Schwab, J.). That is the jury’s province. See, e.g., Skerski, 257 F.3d at 286 (“We

therefore find that there is a genuine issue of material fact as to whether Time

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Warner provided Skerski with a reasonable accommodation, thereby making

summary judgment inappropriate.”); Logsdon, 2018 WL 10230686, at *2 (“There are

genuine disputes of material facts as to whether Logsdon is a qualified individual

with a disability, whether she can perform the essential functions of the job, [and]

whether her proposed accommodation … was reasonable[.]”); Morton v. Cooper Tire

& Rubber Co., No. 12-28, 2013 WL 3088815, at *5 (N.D. Miss. June 18, 2013) (“[T]here

is a genuine dispute of material fact as to whether Plaintiff could perform the

essential functions of the job with the limited breaks he allegedly requested.”).

That said, the Court notes one additional matter. Even though there is a

material dispute of fact over Mrs. Simon’s “shift accommodation,” there isn’t such a

dispute over her request to be transferred to a different position.3 Therefore, at trial,

3 That is, Mrs. Simon cannot meet her prima facie burden for her accommodation

request to be transferred to a different position. ECF 32, p. 15.

Mrs. Simon can satisfy her burden on this request if she “can make at least a

facial showing that [her] proposed accommodation is possible.” Gaul, 134 F.3d at 580

(citation omitted). Specifically, Mrs. Simon must “demonstrate that there were

vacant, funded positions whose essential duties [she] was capable of performing, with

or without reasonable accommodation, and that these positions were at an equivalent

level or position as [her former job].” Id. (cleaned up). Mrs. Simon offers three

alternatives to her job as a Patient Care Technician: a clerical position in the school

of nursing, a job as a “safety sitter,” or a “less stressful position.” ECF 32, pp. 15-16.

There are problems with each of these positions.

The clerical position in the school of nursing doesn’t meet the standard

established by the Third Circuit because it was a temporary transitional assignment,

reserved for those recovering from workplace injuries—or as Mrs. Simon put it, “a

made up job for people on light duty.” ECF 29-6, Simon Dep., 64:21-25. “But it is

well-established that the ADA does not require an employer to create a new position

or transform a temporary light duty position into a permanent position.” Gera v.

County of Schuylkill, 617 F. App’x 144, 146 (3d Cir. 2015) (cleaned up). So this

proposed accommodation is unreasonable as a matter of law. See id.

The next position Mrs. Simon suggests as a possibility is that of a “safety

sitter.” While that may be a full-time position that exists at UPMC, Mrs. Simon has

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Mrs. Simon’s ADA accommodation claim will be limited to only her request to not

work back-to-back 12-hour shifts.

CONCLUSION

For the reasons above, the Court will deny UPMC’s motion for summary

judgment. An appropriate order follows.

DATED this 23rd day of August, 2021.

BY THE COURT:

/s/ J. Nicholas Ranjan

United States District Judge

not offered sufficient evidence to establish that it was available to her when she

requested the accommodation.

The last position Mrs. Simon suggests is that of a generic, “less stressful”

position. “But a request to be transferred to a less stressful position, or to a more

stable and supporting environment, is unreasonable as a matter of law.” Nesby v.

Yellen, No. 18-1655, 2021 WL 1340000, at *11 (W.D. Pa. Apr. 9, 2021) (Wiegand, J.).

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