# RAY v. ELECNOR HAWKEYE, LLC

> District Court, D. New Jersey · December 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10655867

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10655867

## How later opinions describe it (automated extraction)

- finding that plaintiff's impairment was objectively minor because, at the summary judgment stage, there was overwhelming evidence in the record that the plaintiff could perform all duties in her job description, despite her impairment of a sprained ankle/foot
- finding that the “determination of whether an impairment substantially limits a major life activity requires an individualized assessment[,|” even for seemingly qualifying disabilities, like cancer (quoting 29 C.F.R. § 1630.2G)(1)(iv)
- finding that termination is “clearly [an] adverse employment decision[]’”

## Opinion text

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

AMBER RAY,
Plaintiff,
Civil Action No. 22-346 (MAS) (RLS)
v.
ELECNOR HAWKEYE, LLC, MEMORANDUM OPINION
Defendant.

SHIPP, District Judge
This matter comes before the Court upon Defendant Elecnor Hawkeye, LLC’s
(“Defendant”) Motion for Summary Judgment. (ECF No. 25.) Plaintiff Amber Ray (‘Plaintiff’)
opposed (ECF No. 27), and Defendant replied (ECF No. 30), The Court has carefully considered
the parties’ submissions and decides the matter without oral argument under Federal Rule of Civil
Procedure 78 and Local Civil Rule 78.1. For the reasons below, Defendant’s Motion for Summary
Judgment is granted in part and denied in part.
IL BACKGROUND
A. Factual Background!
Defendant is a utility contractor that performs construction and maintenance on electricity,
gas, and telecommunication projects throughout the Northeast and Mid-Atlantic States. (Def.’s
Statement of Facts (“DSOF”) 7, ECF No. 25-2.) On June 3, 2021, Plaintiff, a 46-year-old female,

' Unless otherwise indicated, the Court recites only the uncontested facts necessary to
contextualize the present motion. All other relevant or material facts that are contested will be
recited where applicable in the Court’s analysis below.

was hired by Defendant as a Project Manager/Estimator. (/d. {§ 5, 8.) Plaintiff was assigned to
work in Defendant’s Windsor, New Jersey location, and reported directly to Hal Meeler
(“Meeler’”), Director of Underground Transmission, and John Petrina (“Petrina”), Director of New
Jersey Operations. (/d. § 9.) During the hiring process, Plaintiff completed an Equal Employment
Opportunity and Self-Identification Form (“EEO Statement”) which asked whether Plaintiff was
an individual with a physical, mental, or emotional impairment; on the form, Plaintiff indicated
she did not have any impairment.” (Jd. § 11.) During the hiring process and upon her hiring,
Plaintiff was advised that she would be required to work physically in-person in Defendant’s
office. Ud. {{ 12-13.) Plaintiff also received and acknowledged a copy of the employee handbook,
which states that accommodation requests may be submitted to Defendant’s Human Resources
(“HR”) Department. Ud. 22-23; Pl.’s Resp. Statement of Facts (“PRSOF”) {f 22-23, ECF No.
27-1.)
On Friday, July 30, 2021, Plaintiff sent Meeler a text message stating that she would be
working remotely from home that day. (July 30, 2021 Text Message, ECF No. 25-15; DSOF 24.)
Based on the evidence in the record, this was the first time Plaintiff indicated or requested that she
work remotely from home. Meeler called Plaintiff and told her that her position required her to
work in person at the office, and that he planned to discuss the issue with Plaintiff the following
Monday, on August 2, 2021. (DSOF 4 28.) After Meeler’s phone call with Plaintiff, Meeler
forwarded Plaintiff's text message to Petrina and Brynn Noone (“Noone”), Defendant’s HR
Manager, and requested that the correspondence be documented in Plaintiff's file. July 30, 2021
Text Message; DSOF 4 29.) On the same day, Plaintiff—while speaking with Petrina about an

* Plaintiff disputes, however, that checking “No” for the disability section in the EEO Statement
means that she does not have a disability pursuant to the claims that she brings in the instant matter.
(PRSOF 4 11.)

unrelated business issue—noted that Meeler made a negative comment about Plaintiff working
remotely from home. (July 30, 2021 Text Message; DSOF § 33; PRSOF 33.)
Later on July 30, Meeler and the Chief Operations Officer, Matt Braunwart (“Braunwart”),
spoke on the phone; Defendant alleges that Meeler and Braunwart decided to terminate Plaintiff
during this telephone call because of “her insubordination and unprofessionalism.” (DSOF
30-31; Def.’s Moving Br. 1, ECF No. 25-3.) Meeler also spoke with Petrina about the
termination decision that day. (DSOF { 34.) Plaintiff, however, disputes this allegation and argues
that the decision to terminate her was made several days later, on August 3, 2021, in retaliation
after she requested a work accommodation on July 31, 2021. (PRSOF 31.)
On Saturday, July 31, 2021, a day after she informed Meeler that she would be working
remotely from home on July 30, Plaintiff sent an e-mail message to Noone requesting a “reasonable
accommodation work adjustment due to a medical condition|,]” specifically to “telecommute until
the [Covid delta variant] [t]ransmission rates subside[d.|” (PI.’s Accommodation Request, ECF
No. 27-15.) Plaintiff indicated that she has “an auto-immune disorder, and even though [she □□□
vaccinated, it [does not] protect [her] as well as other people without medical issues.” (/d.) Plaintiff
stated that she “already asked [her two] bosses and they said no[,] [e]ven though [she] can do [her]
job at home and [did her] same job at home, for [her] last company.” (/d.) Noone forwarded
Plaintiff's correspondence to Aubrey Allen (“Allen”), a newly hired HR director and asked if it

would be possible to discuss the correspondence on Monday. (Jd; Allen Dep. 33:8-14.) Allen
stated that she discussed the correspondence with Petrina, but ultimately did not discuss it with
Noone. (Allen Dep. 33:17.)
On August 2 and August 3, 2021, Plaintiff “‘called out of work” to care for her grandchild.
(Def.’s Moving Br. 1-2; DSOF § 41.) On August 2, Meeler, Petrina, Allen, and Noone participated
in a phone call discussing Plaintiff's request for accommodations. (Petrina Dep. 91:18-92:1; Allen
Dep. 34:22-35:8.) In this meeting, Petrina stated that “the company [is not] allowing [or] providing
accommodations" for operations employees or project managers.” (Allen Dep. 35:14-21.)
On August 4, 2021, Plaintiff met with Meeler and Petrina and was informed that her
employment with Defendant was terminated, and that Defendant would “be going in a different
direction.” (DSOF 4 44; Pl.’s Dep. 88:7-12; Meeler Dep. 47:6-10, ECF No. 25-12; Petrina Dep.
74:20-75:8, ECF No. 25-11.)
On January 25, 2022, Plaintiff filed a Complaint alleging that Defendant violated the
Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination
(“NJLAD”). (Compl., ECF No. 1.) Defendant filed a Motion for Summary Judgment. (ECF
No. 25.) Plaintiff opposed (ECF No. 27), and Defendant replied (ECF No. 30),

Allen was hired by Defendant on July 26, 2021. (Def.’s Moving Br. 8, n.2; see also Allen Dep.
7:5-6, ECF No. 25-17.) Upon joining the team, Allen was made aware by Meeler and Petrina of
Plaintiffs performance, and “inappropriate comments” about her managers made to other people.
(DSOF 437; see Allen Dep. 7:5-6, 26:6-27.) Allen asked that Meeler and Petrina send her an
e-mail message, describing the incidents in detail. Ud. 27:7-12.) Allen states that within a day or
two, on August 2, 2021, Meeler and Petrina sent an e-mail message describing Plaintiff's allegedly
inappropriate behavior to employees in Defendant’s HR Department. (Meeler and Petrina’s Aug.
2, 2021 Correspondence, ECF No. 27-17.) Allen reviewed the correspondence and had another
call with Meeler and Petrina to “regroup and acknowledge” their e-mail message; Allen, however,
could not recall exactly when this call took place. (Allen Dep. 27:20-22, 28:5-29:15.)
4 Based on Allen’s testimony, it is unclear whether Allen was referring to all accommodations, or
accommodations specifically related to working remotely. (See generally Allen Dep.)

II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a)° states that “[t]he court shall grant summary
judgment 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 material fact raises a
genuine dispute “if evidence is such that a reasonable [factfinder] could return a verdict for the
nonmoving party.” Williams v. Borough of W. Chester, 891 F.2d 458, 459 (3d Cir. 1989); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (“By its very terms, this standard provides that
the mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.”).
The Court does not “weigh the evidence and determine the truth of the matter” but will
determine whether a genuine dispute necessitates a trial. Anderson v. Liberty Lobby, Inc., 477 US.
242, 248-49 (1986) (“Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.”). “In considering a motion for summary judgment,
a district court may not make credibility determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be
drawn in [her] favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (citation
omitted). In making its decision, the Court must consider all facts and their logical inferences in
the light most favorable to the nonmoving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d
860, 864 Gd Cir. 1986); see also Anderson, 477 U.S. at 251-52 (stating that the court must assess
“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.”).

> Hereinafter, all references to a “Rule” or “Rules” refer to the Federal Rules of Civil Procedure.

While the moving party bears the initial burden of showing the absence of a genuine dispute
of material fact, meeting this obligation shifts the burden to the nonmoving party to “set forth
specific facts showing that there is a genuine [dispute] for trial.” /d. at 250. If the nonmoving party
fails to demonstrate proof beyond a “mere scintilla” of evidence that a genuine dispute of material
fact exists, then the court must grant summary judgment. Big Apple BMW v. BMW of N. Am., 974
F.2d 1358, 1363 (3d Cir. 1992),
Iii. DISCUSSION
In her Complaint, Plaintiff asserts that Defendant violated the ADA and NJLAD by:
(1) terminating her because of her disabilities or perceived disabilities; (2) terminating her in
retaliation for requesting reasonable accommodations; and (3) failing to provide her with
reasonable accommodations. (Compl. {J 41-51.) Courts considering a NJLAD claim are guided
by the same framework that guides the analysis of an ADA claim, and thus the Court analyzes the
claims together. See Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 956 (3d Cir. 1996) (citations
omitted).
A. Discrimination Claim
Plaintiff asserts a discrimination claim under the ADA and NJLAD, alleging that she was
discriminated against and ultimately terminated because of her actual and/or perceived disability.
(Compl. Ff 41-51; Pl’s Opp’n Br. 17-25.) Plaintiff alleges that she “suffers from a [sic] several
auto-immune conditions which affect her immune system and cause her fatigue and pain[,|’’ and
that she “has obtained treatment for these conditions for the last several years and has been
prescribed medication for them.” (Pl’s Opp’n Br. at 21; see also Compl. § 17.)
The ADA makes it unlawful to “discriminate against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a). To establish a prima facie case of disability discrimination under

the ADA, a plaintiff must demonstrate that: (1) she has a disability within the meaning of the ADA;
(2) she is otherwise qualified to perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) she has suffered adverse employment action
because of the discrimination.® Reyer v. Saint Francis Country House, 243 F. Supp. 3d 573, 591
(E.D. Pa. 2017) (citing Gaul v. Lucent Techs., 134 F.3d 576, 580 (d Cir, 1998)). Additionally, a
plaintiff must demonstrate that her disability “actually motivated” the defendant’s decision to
terminate her. See Woloshin v. Rutgers Univ., No. 15-2588, 2016 WL 5660460, at *3 (D.N.J. Sept.
28, 2016) (quoting Raytheon Co. v. Hernandez, 540 U.S. 44, 124 (2003)). The Court first assesses
whether Plaintiff demonstrates that she has a disability within the meaning of the ADA.
i, Disability
In her Complaint, Plaintiff alleges that she “has suffered from serious medical conditions,
including Lupus (an auto-immune condition).... for at least the last five (5) years and has
obtained medical treatment for [the] same, including but not limited to neurology, rheumatology[,]
and physical treatment.” (Compl. {J 16-17.) Plaintiff clarified in her deposition, however, that
months after she stopped working for Defendant, Plaintiff's doctor told her that she was
misdiagnosed with Lupus and that she actually has Hypermobile Ehlers-Danlos syndrome, a

6 Similarly, a prima facie case of disability discrimination under the NJLAD requires the employee
to demonstrate that: (1) she was handicapped; (2) she was otherwise qualified to perform the
essential functions of the job, with or without the accommodation by the employer; (3) she was
fired; and (4) the employer then sought someone to perform the same work. Clowes v. Terminix
Tnt’l, Inc., 109 N.J. 575, 597 (1988) (citations omitted).

complex musculoskeletal condition.’ (Pl.’s Dep. 140:15-141:6; 137:19-24; 206:12-19; 145:18-24,
ECF No, 27-3.) Although Plaintiff does not list specific diagnoses other than Lupus in her briefs,
she testified that she has fibromyalgia, Raynaud’s, Sjogren’s, and polyarthritis in her deposition.®
(Id. at 136:19-24; 137:1-17; 138:6-8; 256:6-9.)
Under the ADA, a plaintiff is found to be disabled if she demonstrates: “(A) a physical or
mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42
U.S.C, § 12102(1). The Court assesses whether Plaintiffis disabled under the ADA based on any
of the three factors.
a. Impairment Substantially Limits One or More of Plaintiff's
Major Life Activities
In determining whether a plaintiff's impairment substantially limits a major life activity,
the Supreme Court has emphasized that courts should “determine the existence of disabilities on a
case-by-case basis.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306-07 (3d Cir. 1999)
(quoting Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999)); see also Alston v. Park
Pleasant, Inc., 679 F. App’x 169, 172 (3d Cir. 2017) (finding that the “determination of whether
an impairment substantially limits a major life activity requires an individualized assessment[,|”
even for seemingly qualifying disabilities, like cancer (quoting 29 C.F.R. § 1630.2G)(1)(iv))). “The

Plaintiff testified that she is unclear about exactly when she found out about the misdiagnosis.
(Pl.’s Dep. 203:2-205:6.) She initially testified that she found out that she may not have Lupus
around November 2021, but later stated that she may not have found out until January or February
2022, after the instant Complaint—which states she has Lupus—was filed. Vd. 203:2-205:21.)
Plaintiff stated that she is still unsure of her exact diagnosis because she has several symptoms and
“multiple people [are] telling [her] multiple different things.” Ud. 308:16-22.) She noted that “this
is a similar journey for people who have auto[-]immune issues.” (/d. 308:23.) Plaintiff stated that
she did not have any medical records or notes regarding the misdiagnosis. U/d. at 206:4-19.)
Plaintiff also testified that she has attention deficit hyperactivity disorder (“ADHD”) but stated
that “[she does not] consider [it to be] a [relevant] condition.” (PI.’s Dep. 138:23-139:1.)

Court must begin by identifying the specific life activity or life activities that [a] plaintiff alleges
her disorder affected, and then evaluate whether her condition ‘substantially limits’ those life
activities.” See Taylor, 184 F.3d at 306-07.
The Equal Employment Opportunity Commission (“EEOC”) regulations define
“substantially limits” as:
(i) [ujnable to perform a major life activity that the average person
in the general population can perform; or (ii) [s]ignificantly
restricted as to the condition, manner[,] or duration under which an
individual can perform a particular major life activity as compared
to the condition, manner, or duration under which the average
person in the general population can perform that same major life
activity.
29 C.F.R. § 1630.2q)(1). In considering whether an individual is substantially limited in a major
life activity, the EEOC regulations state the following factors should be considered: “(i) [t]he
nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment;
and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or
resulting from the impairment.” 29 C.F.R. § 1630.2()(2). While the ADA does not define “major
life activity,” the EEOC regulations define “major life activities” to include functions such as
“{claring for oneself, performing manual tasks, ... walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,
interacting with others, and working[.]” Eshelman v. Agere Sys., Inc., 554 F.3d 426, 434 (3d Cir.
2009) (citing 29 C.F.R. § 1630.2(i)).
In a single paragraph in her Complaint, Plaintiff alleges that her medical conditions cause
her physical impairment, severe fatigue, and “affect [her] daily functioning, including but not

limited to standing, walking, sleeping, running, performing daily chores, and, at times, working.”
(Compl. 18.) Yet, Plaintiff's deposition testimony suggests that her medical condition does not
substantially limit the aforementioned life activities.!° Plaintiff testified that her alleged disability
does not affect her ability to sit down, stand up, walk,'! or sleep. (Pl.’s Dep. 309:18-311:1.) In fact,
Plaintiff stated that she planned to still walk her dog on July 30, 2021, when she had her flare-up
that prevented her from working in person. (/d. at 191:32-192:13.) See Sampson v. Methacton Sch.
Dist., 88 F. Supp. 3d 422, 437 (E.D. Pa. 2015) (finding that even “[m]oderate difficulties in
walking or climbing stairs do not bring an individual within the class of persons protected by the
ADA.” (citing Kelly v. Drexel Univ., 94 F.3d 102, 108 (3d Cir.1996))). Although Plaintiff testified
that she has some limitation when running and that she has chronic fatigue, such as “deep aches in
[her] muscles and bones” (PI.’s Dep. 310:17-311:13, 312:4-22), Plaintiffhas not demonstrated that
she is substantially restricted from running compared to an average person in the general
population. In regard to “performing daily chores,” Plaintiff similarly has not demonstrated that

In a footnote, Plaintiff states that she is only providing an example of activities in which Plaintiff
is substantially limited from performing. (Compl. { 18 n.3.) Plaintiff does not discuss any specific
life activities that she is allegedly substantially limited from performing in her summary judgment
submissions. The Court is tasked with “identifying the specific life activity or life activities that
Plaintiff alleges her disorder affected, and then evaluate whether her condition ‘substantially
limits’ those life activities.” Taylor, 184 F.3d at 306-07 (quoting Albertsons, Inc., 527 U.S. at 566
(emphasis added)). The Court, accordingly, only assesses the specific life activities that Plaintiff
alleges in her Complaint does not entertain other hypothetical life activities that Plaintiff allegedly
chose not to include in her list of examples. As noted by the Third Circuit, “[j]udges are not like
pigs, hunting for truffles buried in the record.” Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d
812, 820 (3d Cir. 2006) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
'0 The Court relies upon Plaintiff's deposition testimony—taken approximately a year after she
was terminated by Defendant—as her Complaint or briefs do not otherwise clarify or discuss how
her specific life activities were affected by her medical condition. In testifying, Plaintiff did not
distinguish that her symptoms differ from when she was terminated by Defendant.
"| Plaintiff testified that she had a torn meniscus that, at times, causes pain but stated that it does
not limit her daily life activity of walking. (Pl.’s Dep. 310:4-16.) She also noted that “[she] can
walk to a certain amount.” (/d. 136:14-15.)
10

she is substantially limited in performing the life activity compared to an average person in the
general population. Plaintiff stated that she is able to drive to pick up groceries, and that she
primarily does the laundry, cooking, and all of her household activities with only “some help”
from her teenage son. (/d. at 18:22-10; 134:3-11.) See Marinelli v. City of Erie, Pa., 216 F.3d 354,
362 (3d Cir. 2000) (finding that EEOC regulations list “caring for oneself... such as washing
dishes and picking up trash,” as a major life activity[.]”). Plaintiff also confirmed that she is able
to take care of herself while supporting her son, and travel when necessary, noting that a doctor
has not restricted her ability to go to public places. (/d. at 133:4-17, 134:3-7, 132:5-19.)
Regarding Plaintiff's allegation that her medical conditions “affect her daily functioning,
including . . . at times, working” because she experiences “flare-ups” which require her to “take
periodic time off’ from work, Plaintiff fails to provide evidence that her ability to perform her
work is substantially limited. (Compl. {J 18, 21-23 (emphasis added); PRSOF 4 11.) “Where the
major life activity at issue is working, the term ‘substantially limited’ is defined as ‘significantly
restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes
as compared to the average person having comparable training, skills[,] and abilities.’” Smiley v.
Daimler Chrysler, 589 F. Supp. 2d 471, 483 (D. Del. 2008) (quoting Deane v. Pocono Med. Ctr.,
142 F.3d 138 (3d Cir. 1998)). Here, Plaintiff was and is not substantially limited or significantly
restricted from a class of jobs—Plaintiff testified that she is “somebody who is generally able to
work .... [full-time without restrictions” and is medically able to work up to 12 hours a day if
she needs to. (Pl.’s Dep. 131:24-132:4, 133:18-22.) Plaintiff testified that she was able to perform
all functions of the job when employed by Defendant, other than the one day in July when she
stated she needed to work from home. (/d. 143:11-23.) Plaintiff stated that she does not have any
limitations with her short- or long-term memory or her ability to think. Ud 309:11-17.) Finally,

11

Plaintiff had a job prior to working for Defendant, and was hired to work for another company
after she was terminated by Defendant, exhibiting a past and continuing ability to perform her
work duties. Ud. 20:1-20, 141:14-23.)
To the extent Plaintiff relies upon her medical record and diagnoses, the evidence is
insufficient to show that Plaintiff was so substantially limited from major life activities by her
alleged impairment that she can be considered disabled under the ADA. Indeed, the Third Circuit
has held that a diagnosis does not automatically equate to a disability under the ADA. See Kania
v. Potter, 358 F. App’x 338, 342 (3d Cir. 2009) (“But despite his diagnosis of facet syndrome, the
record reveals no doctor who has placed a physical limitation on [plaintiff].”) Accordingly,
Plaintiff's medical records indicating that she received medication for her alleged auto-immune
conditions—such as diffuse connective tissue disease, polyarthritis, and fibromyalgia (see ECF
No. 27-6, 27-7, 27-8)—are alone insufficient to find that Plaintiff was substantially limited in a
major life activity. See Weisberg v. Riverside Twp. Bd. of Educ., 180 F. App’x. 357, 359-62 (3d
Cir. 2006) (finding that a plaintiff was not substantially limited from major life activities because
he was not “substantially limited as compared to the average person in the general population,”
even though a doctor’s report indicated plaintiff had post concussive syndrome or a concussive
brain injury (internal quotations) (citing 29 C.F.R. § 1630.2(4)(1))).
In sum, the record fails to sufficiently provide evidence and demonstrate how Plaintiff is
substantially limited from performing specific major life activities. See Salamone y. Carter’s
Retail, Inc., No. 09-5856, 2013 WL 12430573, at *8 (D.N.J. Jan. 31, 2013) (finding that plaintiff
did not demonstrate that she was substantially limited from a major life activity because she did
not “adequately demonstrate[] what condition she had” and did not “demonstrate|] how any
alleged condition has impacted her life.”); Marinelli, 216 F.3d at 363 (finding that plaintiff did not

12

demonstrate he was substantially limited from a major life activity because although “[plaintiff]
casually mentioned...a task during his testimony, he failed to indicate how his medical
difficulties affected his ability” to perform the specific life activity).
Having failed to adequately address and demonstrate the nature and severity of her
impairment, the expected duration of the impairment, or the potential long-term impact of the
impairment, this Court finds that Plaintiff fails to raise a genuine dispute as to whether she had an
“impairment that substantially limits one or more major life activities” when Defendant terminated
her. See 42 U.S.C. § 12102(1).
b. Record of Impairment
A plaintiff is considered to have a record of disability if he or she has “a history of, or had
been misclassified as having, an impairment that substantially limited a major life activity.”
Parrotta v. PECO Energy Co., 363 F. Supp. 3d 577, 594 (E.D. Pa. 2019) “(A plaintiff] must show
record of an impairment substantially limiting a major life activity.” (citing Eshelman, 554 F.3d
at 437)). “A plaintiff attempting to prove the existence of a ‘record’ of disability still must
demonstrate that the recorded impairment is a ‘disability’ within the meaning of the ADA.”
Eshelman, 554 F.3d at 437. In conjunction, a plaintiff must also demonstrate that the defendant
relied upon the plaintiff’s record of impairment when it terminated the plaintiff. 7d.

2 See also Howard y. Pa. Dep’t of Pub. Welfare, No. 11-1938, 2013 WL 102662, at *11 (E.D. Pa.
Jan. 9, 2013) (finding that plaintiff produced evidence, like an affidavit, deposition, and
“voluminous medical records,” “from which a reasonable jury could conclude her fibromyalgia
substantially limits her ability to walk, sleep, and perform manual tasks as compared to most
people in the general population.”); Tish v. Magee-Women’s Hosp. of Univ. of Pittsburgh Med.
Ctr., No. 06-820, 2008 WL 4790733, at *8 (W.D. Pa. Oct. 27, 2008) (finding that a reasonable
factfinder could find plaintiff to be substantially limited from major life activities based on
information in her affidavit detailing the extent of her injuries, medical records, documentary
evidence, and doctors’ notes).
13

Here, Plaintiff seems to allege that she has sufficiently demonstrated a record of
impairment because she “has obtained treatment for these conditions for the last several years and
has been prescribed medication” for the “several auto-immune conditions which affect her immune
system and cause her fatigue and pain.” (Pl.’s Opp’n Br. at 21.) As discussed above, however,
Plaintiff has not presented evidence that her impairment substantially limited a major life activity
while she was employed by or when she was terminated by Defendant. See Olson, 101 F.3d at 953
(finding that plaintiff did not show he had a record of impairment because “[t]he
evidence ... reflects [plaintiff’s] ability to function normally despite what appear to be serious
psychological and emotional problems[, which] defeats that part of [plaintiffs] ADA claim.”);
Howell v. Sam’s Club No. 8160/Wal-Mart, 959 F. Supp. 260, 268 (E.D. Pa. 1997), aff'd sub nom.,
Howell v. Sam’s Club No, 8160 Wal-Mart, 141 F.3d 1153 (3d Cir. 1998) (finding that there is no
information “by which the court can conclude there is a genuine [dispute] of material fact as to
whether |plaintiff| has a record of impairment, because none of [the submitted documents] discuss
how [plaintiffs] impairments substantially limit any of his major life activities.”).
Further, the Third Circuit has determined that a “relatively short-term absence from work,
without any long-term impairment, is generally held to be insufficient to create a record of
disability.” Parrotta, 363 F. Supp. 3d at 594. Accordingly, Plaintiffs alleged periodic flare-ups,
which require Plaintiff to take time off work (see Compl. 21), do not meet the threshold to
establish a record of impairment under the ADA. See Parrotta, 363 F. Supp. 3d at 594 (noting the
Third Circuit has held that a “six-month absence from work for cancer treatment, without a
showing of long-term impairment, was insufficient to create a record of impairment.” (citing
Eshelman, 554 F.3d at 434)).

14

The record Plaintiff relies upon does not demonstrate that she was substantially limited in
any major life activity, and thus this Court finds that Plaintiff has not raised a genuine dispute of
material fact as to whether she has a record of impairment under the ADA.
¢. Being Regarded as Having an Impairment
Finally, “when an employer ‘misinterprets information about an employee’s limitations to
conclude that the employee is incapable of performing a wide range of jobs,’ that employee is
‘regarded as’ disabled under the ADA.” Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 Gd Cir.
2002) (citing Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 190 (3d Cir. 1999) (alterations
omitted)). Therefore, to be “regarded as” disabled under the ADA, a plaintiff must demonstrate
either that: (1) despite having no impairment at all, the defendant erroneously believed that the
plaintiff had an impairment that substantially limited one or more of her major life activities; or
(2) the plaintiff had a non-limiting impairment that the defendant mistakenly believed substantially
limited one or more of her major life activities. See Eshelman, 554 F.3d at 434 (citing Tice v. Ctr.
Area Transp. Auth., 247 F.3d 506, 514 (3d Cir. 2001)).
Under a “regarded as” claim, the Court must inquire whether a defendant perceived the
plaintiff as disabled within the meaning of the ADA, not whether plaintiff was actually disabled
at the time defendant decided to terminate her. See id. (citations omitted). In short, the employer
“must regard the employee to be suffering from an impairment within the meaning of the statutes,
not just that the employer believed the employee to be somehow disabled.” Rinehimer, 292 F.3d
at 381 (citations omitted). Consequently, liability only attaches to a “mistake that leads the
employer to think that the employee is substantially limited in a major life activity” and terminates
the employee because of it. Taylor, 177 F.3d at 192. “[A]n inquiry into how an employee was
‘regarded’ is necessarily quite fact-specific, and all of the surrounding circumstances may be

15

relevant in reaching a conclusion.” Ramage v. Rescot Sys. Grp., Inc., 834 F. Supp. 2d 309, 323
(E.D. Pa. 2011) (quoting Tice, 247 F.3d at 515).
To support her “regarded as” claim, Plaintiff asserts in a single paragraph that she “was
terminated within less than five weeks of disclosing her medical conditions to Petrina and Meeler
(her managers/decision-makers)[,]” and “was replaced by an employee outside of her protected
class[.]” (PL.’s Opp’n Br. 23.) Plaintiff further asserts that Defendant’s treatment towards her
changed “only after she disclosed her medical conditions to Defendant.” (/d.) Indeed, a close
temporal proximity between the dates an employer learns of an employee’s physical or mental
impairment and the employee’s termination may be sufficient to raise an inference of “regarded
as” disability discrimination. Matias v. Terrapin House, Inc., No. 21-2288, 2021 WL 4206759, at
*2 (E.D. Pa. Sept. 16, 2021) (citations omitted).
As an initial matter, Plaintiff fails to acknowledge that one may not allege a perceived
disability based on impairments that are “transitory” and “minor.” 42 U.S.C. § 12102(3)(B);
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014) (“[T]he relevant inquiry
is whether the impairment that the employer perceived is an impairment that is objectively
transitory and minor.” (emphasis added)). The ADA defines “transitory” as an impairment with an
actual or expected duration of six months or less, but does not otherwise define “minor.”!? See
Eshleman, 961 F.3d at 247-48 (citing 42 U.S.C. § 12102(3)(B)). Here, Plaintiff does not provide
the Court with her arguments as to why her auto-immune conditions should not be considered
transitory or minor. The Court thus relies upon evidence in the record to apply the objective
standard within Plaintiff's “regarded as” claim, which overwhelming supports the conclusion that

'3 Although the ADA does not define “minor,” the Third Circuit has found that district courts are
required nonetheless to separately evaluate whether an impairment is minor. See Eshleman, 961
F.3d at 247-48 (citing 42 U.S.C. § 12102(3)(B)).
16

Plaintiff's impairments were in fact minor. Plaintiff alleges that she “has been prescribed
medication for” and “has obtained treatment for [multiple auto-immune] conditions for the last
several years.” (Pl’s Opp’n Br. at 21.) Yet, as noted supra, Plaintiff readily testified that she was
not limited in her ability to sit down, stand up, walk, drive, sleep, or do household chores. (PI.’s
Dep. 18:22-10; 134:3-11; 309:18-311:1.) Plaintiff testified that even with her auto-immune
conditions, she is “generally able to work .. . . [fJull-time without restrictions[,]” and was able to
perform all functions of the job when employed by Defendant, other than on July 30, 2021. Ud.
131:24-132:4; 143:11-23.) See Bush v. Donahoe, 964 F. Supp. 2d 401, 423 (W.D. Pa. 2013)
(finding that plaintiff's impairment was objectively minor because, at the summary judgment
stage, there was overwhelming evidence in the record that the plaintiff could perform all duties in
her job description, despite her impairment of a sprained ankle/foot).
Assuming Plaintiff can demonstrate that her impairment is not transitory or minor, the
Court assesses all facts and surrounding circumstances relevant to Plaintiffs regarded as claim for
the sake of completeness. See Ramage, 834 F. Supp. 2d at 323. Still, the Court finds that there is
insufficient evidence that Defendant regarded Plaintiff as disabled under the ADA to survive
summary judgment. In essence, Plaintiff fails to show that Defendant terminated her because of
its belief that she was substantially limited in one or more major life activities, or unable to work
in a particular class or broad range of jobs. See 42 U.S.C. § 12102(2)(A). Plaintiff stated that during
her employment, she mentioned “in passing” to select employees, including Petrina and Meeler,
that she has “medical issues,” “auto-immune issues,” or Lupus, which Plaintiff now believes was

17

a misdiagnosis.'* (Compl. Pl.’s Dep. 143:24-144:4; 145:12-155:9; 314:1-6.) Plaintiff,
however, does not provide evidence to show that Meeler and Petrina (her supervisors and
managers), or Braunwart, knew and perceived Plaintiff's impairment as substantially limiting
when making the decision to terminate her. See Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir.
1996) (citations omitted) (clarifying that “the mere fact that an employer is aware of an employee’s
impairment is insufficient to demonstrate either that the employer regarded the employee as
disabled or that that perception caused the adverse employment action” because it fails to satisfy
that the employer terminated the employee because of a perceived impairment); see also Deane v.
Pocono Med. Ctr., 142 F.3d 138, 144-45 (3d Cir. 1998) (finding that the defendant regarded
plaintiff as substantially limited in a major life activity because there was “deposition testimony
from [defendant’s employees] documenting confusion as to the extent of [plaintiff's] physical
capacity” and “evidence that [defendant] fundamentally misunderstood and exaggerated the
limitations that the .. . injury imposed on [plaintiff].”) To the contrary, “there is no evidence that
any of [Plaintiff's] co-workers or supervisors observed her having any difficulty performing her
job” due to her alleged impairment. See Bush, 964 F. Supp. 2d at 423. For example, Meeler and
Petrina acknowledged that throughout Plaintiff's employment, she was capable of understanding
and performing the tasks required for her job and did not regard her as substantially limited in any
major life activity. (Petrina Dep. 40:1-41:2 (testifying that Plaintiff “was capable” of, and for the
most part, satisfactorily performed the job); Meeler Dep. 30:12-17 (testifying that Plaintiff
“seemed to be .. . doing a good job understanding” her job).)

'4 Indeed, Petrina testified that Plaintiff mentioned having Lupus, but stated that Plaintiff did not
inform him of how the condition affected her and did not request to work from home during that
discussion. (Petrina Dep. 66:21-67:6, 68:4-15.) Meeler, however, testified that Plaintiff never told
him of any medical issues. (Meeler Dep. 40:12-16.)
18

To the extent Plaintiff states that she informed employees in the HR Department about her
impairment,'> the evidence is less relevant because such employees have less or “no role in the
decision to terminate her.”!© Ramage, 834 F. Supp. 2d at 325 (stating that “comments of a
non-supervisory employee with no employment decisional authority carry less weight as to
whether the employer regarded an employee as disabled” (citing Sizemore v. Con. Rail Corp., 56
F. App’x 582, 584 (3d Cir. 2011))). To be sure, the Court acknowledges that Allen, the newly hired
HR director, indicated that she was involved in the “collective” decision to terminate Plaintiff with
Meeler, Petrina, Braunwart (Allen Dep. 30:5-23), and that Allen became aware that Plaintiff has
an “auto[-Jimmune disorder” on August 1, 2021, several days before Plaintiff was terminated (PI.’s
Accommodation Request). Yet, Plaintiff fails to demonstrate that Allen had more than just mere
knowledge that Plaintiff had an impairment. There is no evidence showing that Allen regarded
Plaintiff “to be suffering from an impairment within the meaning of the statutes.” See Rinehimer,
292 F.3d at 381. Nowhere in Plaintiff’s briefs or testimony does she state that Allen believed that
Plaintiff was substantially limited in a major life activity. (PI.’s Dep. 260:4-20.)
Finally, Plaintiffs allegation that she was treated differently after disclosing her medical
conditions to Defendant, without more, is bareboned and does not suffice to raise a genuine dispute
of material fact. (See Pl.’s Opp’n Br. 25.) See Ramage, 834 F. Supp. 2d at 324 (finding that while
a “[plaintiff’s] testimony about how she felt and her general impressions of her fellow employees’

'S Plaintiff admits that she did not speak to the HR Department about her medical condition or
need for an accommodation prior to July 31, 2023. (PRSOF 4 48.)
'6 The record suggests that termination decisions are typically made by managers, although they
may “talk to an executive before making a final decision.” (Noone Dep. 27:16-22, ECF No. 25-13;
see also Braunwart Dep. 55:3-11, ECF No. 25-16 (stating “the manager is in charge of their
personnel”)). Noone testified that managers do not need to get approval from the HR department
before terminating an individual, and only need approval from an executive. (Noone Dep.
28:14-22.) Allen, the new HR director, however, testified that termination typically requires
“managers and/or department heads, herself and an executive.” (Allen Dep. 11:8-12.)
19

attitudes toward her are relevant, they do not raise a genuine [dispute] of fact as to whether her
employer regarded her as substantially limited in her ability to see or think.”).
Although “Plaintiff pled disability discrimination in her [C]omplaint and discussed her
physical condition during her deposition.... a careful review of the [parties’ briefs and the
evidence] do[es] not reveal a genuine [dispute] of material fact as to Plaintiff's alleged disability.”
See Salamone, No. 09-5856, 2013 WL 12430573, at *8. The Court therefore finds that Plaintiff
does not raise a genuine dispute of material fact regarding whether she was disabled as defined by
the ADA at the time of her termination. This Court, accordingly, declines to discuss the remaining
factors under Plaintiffs disability discrimination claim. Defendant’s Motion for Summary
Judgment as to Plaintiff's ADA discrimination claim is granted.
B. Reasonable Accommodation Claim
Next, Plaintiff asserts that Defendant failed to accommodate her request to work remotely.
Plaintiff states that she requested the reasonable accommodation of telecommuting because her
several auto-immune conditions cause her “muscle weakness, fatigue, body aches, pain in hands,
wrists, ankles, headaches and neck pain.” (PRSOF § 11.)
To establish a prima facie case of a failure to accommodate under the ADA, Plaintiff must
demonstrate that: “(1) she is a disabled person within the meaning of the ADA; (2) she is otherwise
qualified to perform the essential functions of the job, with or without reasonable accommodations
by the employer; and (3) she has suffered [a] . . . refus[al] to make reasonable accommodations.”
Equal Emp. Opportunity Comm’n v. FedEx Ground Package Sys., Inc., 158 F. Supp. 3d 393, 399
(W.D. Pa. 2016) (citing Hohider v. UPS, Inc., 574 F.3d 169, 186 (3d Cir. 2009)). An employee
who demonstrates that she is “regarded as” disabled, but who fails to demonstrate that she is

20

actually disabled, is not entitled to a reasonable accommodation. Robinson v. First State Cmty.
Action Agency, 920 F.3d 182, 186 (3d Cir. 2019) (citing ADA § 3, 42 U.S.C.A. § 12102(1)(C)).
Having found that Plaintiff fails to demonstrate that she has an actual disability as defined
by the ADA, this Court grants Defendant’s Motion for Summary Judgment as to Plaintiff's ADA
reasonable accommodation claim.
C. Retaliation Claim
Finally, Plaintiff asserts that Defendant terminated her in retaliation for requesting an
accommodation-—that is, permission to work remotely—by e-mail correspondence on July 31,
2021, several days before she was ultimately terminated. (Compl. 7 48; Pl.’s Opp’n Br. 7.)
Defendant states that Plaintiff's termination was “solely based on her insubordination and
unprofessional conduct.” (Def.’s Moving Br. 16.)
“Retaliation claims are distinct from discrimination claims in that they do not require a
plaintiff to prove that he or she has an actual disability; rather, a plaintiff need only show that he
or she requested an accommodation in good faith.” Barber vy. Subway, 131 F. Supp. 3d 321, 329
(M.D. Pa. 2015) (citing Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003));
see also Echevarria v. AstraZeneca Pharm. LP, 856 F.3d 119, No. 15-2232, 2017 WL 1593474,
at *9 (Ist Cir. May 2, 2017) (“It is well settled that an ADA plaintiff may assert a claim for
retaliation even if she fails to succeed on a disability discrimination claim.” (alterations omitted)).
In McDonnell Douglas Corp. v. Green, the Supreme Court established a burden-shifting
framework that governs retaliation claims. Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340,
346 (3d Cir. 2022) (citing 411 U.S. 792 (1973)). Under the first step of that framework, a plaintiff
“must establish a prima facie case by showing: (1) that she engaged in protected employee activity;
(2) there was an adverse action by the employer either after or contemporaneous with the

21

employee’s protected activity; and (3) there is a causal connection between the employee’s
protected activity and the employer’s adverse action. /d. (quotations omitted).
Upon making these showings, the employer then, under step two, has the burden of
producing evidence that “present[s] a legitimate, non-retaliatory reason for having taken the
adverse action.” Jd. If the employer meets this burden, the burden then shifts “back to the plaintiff
to demonstrate that ‘the employer’s proffered explanation was false, and that retaliation was the
real reason for the adverse employment action.’” Jd.
i, The First McDonnell-Douglas Step: Plaintiffs prima facie case of
retaliation
Plaintiff states that she engaged in a protected activity when she requested an
accommodation to work remotely due to a medical condition on July 31, 2021. (PL.’s Opp’n Br.
7.) As a result, Plaintiff asserts that she suffered an adverse employment action—termination—on
August 4, 2021. Ud.) Plaintiff states a causal link is established because of “extremely suggestive
timing, antagonism, disparate treatment[,| and pretext.” (/d.) “Defendant does not dispute that
Plaintiff engaged in a protected activity when she requested an accommodation on July 30,
2021],]” but argues that Plaintiff cannot demonstrate that an adverse action took place due to her
protected activity, and thus “cannot show causation between the protected activity and any adverse
employment action.” (Def.’s Moving Br. 25.) Specifically, Defendant argues that the decision to
terminate Plaintiff was made on July 30, 2021, prior to Plaintiff's correspondence to Defendant’s
HR manager requesting the reasonable accommodation on July 31, 2021. Ud. at 26.)
In order to demonstrate a causal connection, a plaintiff may show: (1) an unusually
suggestive temporal proximity between the protected activity and the allegedly retaliatory action;
or (2) a pattern of antagonism coupled with timing. Gardner v. SEPTA, 410 F. Supp. 3d 723, 745

22

(E.D. Pa. 2019), aff'd, 824 F. App’x 100 (3d Cir. 2020) (citing Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
As an initial matter, and as undisputed by both parties, the Court finds that Plaintiff satisfies
the first two prongs of a prima facie case of retaliation. See Barber, 131 F. Supp. 3d at 329 (stating
that the Third Circuit has found that protected activity “includes retaliation against an employee
for requesting an accommodation.” (citing Sulima v. Tobyhanna Army Depot, 602 F.3d 177,
188-89 (3d Cir. 2010))); Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005) (finding that
termination is “clearly [an] adverse employment decision[]’”).
Turning to the third prong, and considering all facts and logical inferences in the light most
favorable to Plaintiff, Pollock, 794 F.2d at 864, the Court finds that a reasonable factfinder could
determine that the decision to terminate Plaintiff could have been made after July 31, 2021, when
Plaintiff sent correspondence requesting an accommodation. Based on the record, Defendant’s
employees do not unanimously agree as to when the decision to terminate Plaintiff was made, and
who was involved in the decision. In fact, deposition records of Defendant’s employees indicate
that the decision to terminate Plaintiff may have been made on July 30, 2021, on August 2, 2021,
or on August 3, 2021. (Allen Dep. 35:1-13; Meeler Dep. 43:9-17; Petrina Dep. 98:8-21.) Taking
as true Plaintiffs logical inference that she was terminated four days after requesting her
reasonable accommodation, the Court finds Plaintiff has sufficiently demonstrated that temporal
proximity exists between her protected activity and Defendant’s alleged retaliatory action.
The Court, therefore, determines for purposes of this motion that Plaintiff adduced
sufficient evidence to establish a prima facie case of retaliation, and moves onto the next step.

23

il. The Second McDonnell-Douglas Step: Defendant’s legitimate,
non-discriminatory reason for Plaintiff's termination
The Court next considers whether Defendant demonstrates that there was a legitimate,
non-discriminatory reason for terminating Plaintiff. Defendant alleges that Plaintiff was
terminated because of her insubordinate and unprofessional conduct, including her “declar[ation]
[that] she would not be working in the office on July 30, 2021.” (Def.’s Moving Br. 27.) Defendant
also states that the termination decision was made by Meeler and Braunwart on July 30, 2021,
before they knew about Plaintiff's medical condition and her accommodation request. (Def.’s
Moving Br. 17; see also Meeler Dep. 40:12-16; Braunwart Dep. 55:15-22.)
Certainly, evidence in the record suggests that Plaintiff may have been terminated because
of her insubordination and her unprofessionalism, and overall lack of fit with the company.
(Petrina Dep. 73:5-7; Meeler Dep. 46:16-24.) Specifically, Meeler testified that Plaintiff was “not
a good fit, obviously,” based on comments she made “to [Defendant’s] own employees about
management” and “comments [Plaintiff] made in front of a customer.” (Meeler Dep. 46:16-24.)
Meeler stated that “[a]ll these things culminated” in “her termination.”'’ (/d.) Petrina also recalled
that Plaintiff “spoke disparagingly about [a] customer. . . in front of one of [Defendant’s] vendors”
by calling the customer’s supervisor, “inept.”!*® (Petrina Dep. 43:12-20; see also Meeler and
Petrina’s Aug. 2, 2021 Correspondence.) When Petrina “spoke to [Plaintiff] afterward about being

Tn his August 2, 2021 correspondence to a HR director, Meeler stated that “[Plaintiff] has had
something negative to say about everyone in and outside of our group, excluding the present
company she happened to be in front of while venting.” (Meeler and Petrina’s Aug. 2, 2021
Correspondence 1; see also Meeler Dep. 51:2-24.) Meeler added that “[Plaintiff] said that she
should be able to smoke pot at work” and “voiced her opinion that she ‘should be the Operations
Manager, because the present occupant of that position does not know how to do anything.’”
(Meeler and Petrina’s Aug. 2, 2021 Correspondence 1; see also Meeler Dep. 31:7-17; Petrina Dep.
48:8-15.)
'8 Petrina stated he could not recall why Plaintiff called the supervisor “inept.” (Petrina Dep.
43:21-22.)
24

careful [regarding] what she says[,]” Petrina recalled that Plaintiff stated “I speak the truth.”
(Meeler and Petrina’s Aug. 2, 2021 Correspondence 2.) Petrina stated that he let Plaintiff know
that the behavior was unacceptable. Ud.) Finally, Petrina added that Plaintiff “disparaged
everybody in th[e] office . . . about a week” after she joined the company; Petrina testified that “at
first, [he] just took it lightly, but it became apparent that it was a trait of hers.”!? (Petrina Dep.
47:19-48:2.)
Taken together, the Court finds that Defendant has set forth legitimate and
nondiscriminatory reasons for terminating Plaintiff, satisfying the second step, and shifting the
burden back to Plaintiff.
ili. The Third McDonnell-Douglas Step: Plaintiff raises a dispute of fact as to
whether Defendant's legitimate reason for her termination constitutes
pretext
Finally, in the last step of the McDonnell-Douglas framework, a plaintiff must show that
the employer’s “asserted legitimate reason for her termination was a pretext for discriminatory
retaliation.” See Ramage, 834 F. Supp. 2d at 326 (quoting McDonnell Douglas, 411 U.S. at
802-03). The Third Circuit explains that:
a plaintiff may defeat summary judgment at the third step of the
McDonnell Douglas analysis “by pointing to some evidence, direct
or circumstantial, from which a factfinder would reasonably either:
(1) disbelieve the employer’s articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely
than not a motivating or determinative cause of the employer’s
actions.”

'? For example, Petrina stated that during an internal meeting on July 27, 2021, Plaintiff said “I am
leaving here by 2:00 pm because I am not [a] ‘F-in’ hourly like [another employee].” (Meeler and
Petrina’s Aug. 2, 2021 Correspondence 2.) Petrina stated that he discussed with Plaintiff her
behavior in front of other employees; Petrina noted that her response was “I am not [a] F-in
corporate phony like all of you are. All of you guys are just worried about your titles.” Ud.
(quotation marks omitted).)
25

Teubert v. SRA Int’l, Inc., 192 F. Supp. 3d 569, 579 (D.N.J. 2016) (quoting Jones v. Sch. Dist. of
Pa., 198 F.3d 403, 413 Gd Cir. 1999)). In short, the non-moving plaintiff must “demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [defendant’s]
proffered legitimate reasons for [its] action that a reasonable factfinder could rationally find them
unworthy of credence, and .. . infer that [defendant] did not act for the asserted non-discriminatory
reasons.” Griffith v. PNC Bank, No. 13-5407, 2015 WL 2400222, at *7 (D.N.J. May 20, 2015)
(internal quotation marks and citation omitted). In doing so, the Court must look at the “totality of
circumstances” and “consider a broad array of evidence, including antagonism by the employer,
inconsistencies in the reasons the employer gives for its adverse action, and any other evidence
suggesting that the employer had a retaliatory animus when taking the adverse action.” Canada,
49 F 4th at 347 (internal quotation marks and citations omitted).
Here, Plaintiff provides a list of evidence in the record that could establish pretext. Plaintiff
states that Defendant “began trying to ‘paper the file’ by sending a flurry of [e-mail messages]
about [Plaintiff's] alleged conduct” and attempts to “invent reasons to terminate [Plaintiff], on the
heels of her accommodation request, [which] is the epitome of pretext.” (Pl.’s Opp’n Br. 14.) As
support, Plaintiff duly notes that there is a lack of documentation reflecting concerns Defendant
had about Plaintiff during her employment. (PI.’s Opp’n Br. 14, 16; see also Braunwart Dep.
33:11-34:8 (noting that concerns about Plaintiff were not memorialized in writing).) Indeed, the
only documentation listing Plaintiffs alleged inappropriate behavior was sent on August 2, 2021
from Plaintiff's supervisors to a HR director. (Meeler and Petrina’s Aug. 2, 2021 Correspondence.) □□

26

This correspondence was made several days afier July 30, 2021, when Defendant alleges Meeler
and Braunwart made the decision to terminate Plaintiff?! (See Def.’s Moving Br. 28.) See Jackson
v. Planco, 431 F. App’x 161, 166 (3d Cir. 2011) (affirming summary judgment in favor of
defendant for a retaliation and discrimination claim in part because there was an “uncontroverted
record” that plaintiff was under performance management, and plaintiff failed to demonstrate any
inconsistencies or implausibilities to infer defendant’s actions were pretextual).
Additionally, Plaintiff argues that “she was never spoken to, counseled, coached|[,] or
otherwise disciplined for anything[,]” such as her alleged insubordinate or unprofessional
behavior. (P].’s Opp’n Br. 14.) The record, however, suggests that such concerns were discussed
with Plaintiff on approximately two occasions by Petrina, her supervisor. (See Petrina Dep.
42:10-43:14.) Given the contrasting testimonies, Plaintiff raises a genuine dispute as to “how a
jury [will] judge[] the credibility of the parties’ witnesses[,]” which courts have found to be
“improper” for disposition on summary judgment. Sowell v. Kelly Servs., Inc., 139 F. Supp. 3d
684, 695-96, 697 (E.D. Pa. 2015) (finding that plaintiff established a basis for a finding of pretext
because she “‘call[ed] into question” her former employer’s credibility based on contradictory

20 Moreover, Plaintiff points to conflicting deposition testimony by Defendant’s employees as to
when the decision to terminate Plaintiff was made, and thus highlights potential weaknesses and
inconsistencies in Defendant’s proffered legitimate reason as to why Defendant terminated
Plaintiff. See Griffith, 2015 WL 2400222, at *7.
21 To be sure, the Court acknowledges that the record includes Plaintiffs July 30, 2021 text
message to Meeler, in which Plaintiff indicated that she was going to work from home that day.
(July 30, 2021 Text Message.) Meeler forwarded the text message to Petrina and a HR employee
on the same day, requesting that the correspondence be “document[ed]. .. in [Plaintiff's] file.”
(id.; DSOF § 29.) Additionally, Braunwart testified that he “started to hear[] some comments
about” Plaintiff regarding statements made to customers about fellow employees around a month
or two after she was hired. (Braunwart Dep. 25:2-18.) Yet, when weighed with the other evidence
in the record, the text message and Braunwart’s statement fail to fully resolve the potential genuine
dispute as to whether Plaintiff's termination was in retaliation for Plaintiff's accommodation
request.
27

testimony from both parties). “Because this Court cannot engage in a credibility determination at
this stage, a genuine [dispute] of material fact exists as to pretext.” Schneider v. Works, 223 F.
Supp. 3d 308, 320 (E.D. Pa. 2016).
For the reasons outlined above, the Court finds that Plaintiff met her burden to survive
summary judgment as to her ADA retaliation claim by presenting sufficient evidence to create a
genuine dispute of material fact as to whether Defendant’s reasons for terminating Plaintiff were
pretextual. Accordingly, Defendant’s Motion for Summary Judgment as to Plaintiffs ADA
retaliation claim is denied.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment is granted as
to Plaintiffs disability discrimination claim (Count 1) and reasonable accommodation claim
(Count 3). Defendant’s Motion for Summary Judgment as to Plaintiff's retaliation claim (Count 2)
is denied. The Court will issue an Order consistent with this Memorandum Opinion.

UNITED STATES DISTRICT JUDGE

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655867. Public record. Not legal advice.