The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-1221
_____________
SUSAN GALETTE,
Appellant
v.
AVENUE 365 LENDING SERVICES LLC;
NEWREZ LLC,
also operating as Caliber Home Loans, Caliber Home Funding
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:22-cv-02778)
District Judge: Hon. Kai N. Scott
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 6, 2024
Before: SHWARTZ, MATEY, and McKEE, Circuit Judges
(Filed: February 7, 2025)
_______________
OPINION
_______________
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not
constitute binding precedent.
MATEY, Circuit Judge.
Susan Galette claims she was terminated by her employer Avenue 365 Lending
Services LLC (Avenue 365) due to her disability and age. The District Court granted
summary judgment for the Defendants on all claims and, finding no error, we will affirm.
I.
In 2012, Galette began working for Avenue 365, a title insurance and settlement
company. Galette was hired as a “funding specialist” and initially worked in office but,
following the arrival of COVID-19 in March 2020, company employees began working
from home. Only three funding department employees—Galette not among them—could
print and scan checks outside the office. By July 2020, Avenue 365 discontinued remote
printing and scanning, and the funding specialists returned to the office. Galette,
however, continued working remotely because of a recently diagnosed medical condition.
Avenue 365 then required all funding specialists to work in office full time by July
2021. Galette was informed that she would need to return to the office or provide an
updated medical certification to justify her need to work remotely. Galette provided the
documentation and Avenue 365 approved her request to work remotely through
December 2021.
In January 2022, Galette requested to permanently extend her work-from-home
accommodation. But Avenue 365 informed Galette that she would be terminated if she
did not return to the office. When Galette did not return, she was terminated. Avenue 365
did not hire a replacement for Galette. Indeed, the funding department had not hired
2
employees since 2021 and, in 2022, Avenue 365 implemented a company-wide hiring
freeze and underwent several reductions in force.
Galette filed suit against Avenue 365 and Newrez, LLC, a separate entity that
provided legal and administrative services to Avenue 365. She alleged violations of the
Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213 (ADA), the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621–634 (ADEA), and the
Pennsylvania Human Relations Act, 43 Pa. Stat. and Cons. Stat. §§ 951–963 (PHRA).
The District Court entered summary judgment for the Defendants on all claims,
concluding that Galette failed to establish a prima facie case of disability or age
discrimination and that any nondiscriminatory basis for her termination was not
pretextual. Galette now appeals.1
1
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a). This
Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the
District Court’s grant of summary judgment. See Morgan v. Allison Crane & Rigging
LLC, 114 F.4th 214, 220 (3d Cir. 2024). “[A]pplying ‘the same standards and
presumptions as the District Court,’” Mid-Century Ins. Co. v. Werley, 114 F.4th 200, 207
(3d Cir. 2024) (quoting Sapa Extrusions, Inc. v. Liberty Mut. Ins. Co., 939 F.3d 243, 249
(3d Cir. 2019)), “[w]e grant summary judgment ‘if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law,’”
Morgan, 114 F.4th at 220 (quoting Colwell v. Rite Aid Corp., 602 F.3d 495, 501 (3d Cir.
2010)).
3
II.
Galette’s disability and age discrimination claims are analyzed under the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 See
Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667–68 (3d Cir. 1999) (disability
discrimination); Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en
banc) (age discrimination). Galette bears the burden of production and must establish a
prima facie case of discrimination. See Smith v. City of Allentown, 589 F.3d 684, 689 (3d
Cir. 2009).
To establish a prima facie case of disability discrimination, Galette must show:
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 an otherwise adverse employment decision as a
result of discrimination.” Morgan v. Allison Crane & Rigging LLC, 114 F.4th 214, 221
(3d Cir. 2024) (quoting Eshleman v. Patrick Indus., Inc., 961 F.3d 242, 245 (3d Cir.
2020)). A prima facie case of age discrimination requires Galette to establish: 1) she was
“at least forty years old”; 2) she “suffered an adverse employment decision”; 3) she “was
qualified for the position in question”; and 4) she “was ultimately replaced by another
employee who was sufficiently younger so as to support an inference of a discriminatory
motive.” Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir.
2
Galette’s PHRA claims are analyzed under the same framework as her ADA and
ADEA claims. See Colwell, 602 F.3d at 499 n.3. Accordingly, the following analysis of
her federal law claims applies with equal force to her state law claims.
4
2015). Because Galette was “not directly replaced,” she can fulfill the fourth element
with “facts which ‘if otherwise unexplained, are more likely than not based on the
consideration of impermissible factors.’” Id. (quoting Pivirotto v. Innovative Sys., Inc.,
191 F.3d 344, 352 (3d Cir. 1999)).
If Galette satisfies these elements, “the burden of production shifts to the employer
to identify a legitimate non-discriminatory reason for the adverse employment action.”
Smith, 589 F.3d at 690. “If the employer does so, the burden of production returns to
[Galette] to demonstrate that the employer’s proffered rationale was a pretext for”
discrimination. Id.
A.
Galette has failed to establish a prima facie case of disability discrimination
because she has not shown she can perform the essential functions of a funding specialist,
with or without reasonable accommodation.3 Whether a function is essential “is a factual
determination that must be made on a case by case basis [based upon] all relevant
evidence.” Turner v. Hershey Chocolate USA, 440 F.3d 604, 612 (3d Cir. 2006)
(alteration in original) (quoting Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir.
1998) (en banc)). In determining what functions are essential, “consideration shall be
given to the employer’s judgment,” as well as a written job description “if an employer
3
The parties do not dispute that Galette is disabled or suffered an adverse
employment action. Her prima facie case of disability discrimination therefore hinges on
whether she was otherwise qualified to perform the essential functions of a funding
specialist.
5
has prepared [one] before advertising or interviewing applicants for the job.” 42 U.S.C.
§ 12111(8).
Avenue 365 considered a funding specialist’s essential functions to include
“printing, scanning and disbursing checks, releasing wires, facilitating the timely funding
of loans, handling files disbursed by third-party partners, overnighting checks, booking or
posting wires and deposits, handling mail, answering emails, making phone calls, and
handling attorney wires.” App. 19. It put forth a funding specialist job description that
echoed those functions, and claimed that by 2021, the only functions that could be
performed at home were “answering emails, making phone calls, and handling attorney
wires.” App. 19.
Galette argued that “three other employees who were operating as [f]unding
[s]pecialists worked remotely and did not perform the same functions that Avenue 365
alleges were essential.” Opening Br. 23. But those employees, Drew Pollack, Tiffany
Lastinger, and Fonda Aguwa,4 are improper comparators. Pollack, as a senior funding
specialist, had a different title and, by Galette’s own admission, “had a different skill set
and provided a different level of experience.” App. 61. And unlike Galette, who “had
completed these duties – in the office – for nearly a decade prior to the pandemic,”
Response Br. 23, Lastinger and Aguwa were hired to work remotely because Avenue 365
“could not find enough people to join the funding team locally,” App. 131. Moreover,
4
There appears to be disagreement among the parties as to the correct spelling of
this employee’s name. For the avoidance of doubt, we will adhere to the District Court’s
spelling of “Fonda Aguwa.” App. 10.
6
Lastinger left the company approximately five months before Galette’s termination and
Aguwa was part of a reduction in force seven months after the termination.5 Accordingly,
there is no genuine dispute that the essential functions of a funding specialist were those
outlined by Avenue 365.
Nor could Galette perform these essential functions, with or without reasonable
accommodation. Because only three of a funding specialist’s essential functions could be
completed remotely, Galette could not perform certain essential functions of her position
without reasonable accommodation. She claims, however, that the only accommodation
needed was “to be provided with a printer to accomplish th[ose] function[s] remotely.”
Opening Br. 27. But the burdens of an accommodation cannot be “clearly
disproportionate to the benefits that it will produce.” Gaul v. Lucent Techs. Inc., 134 F.3d
576, 580–81 (3d Cir. 1998) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131,
138 (2d Cir. 1995)). And Avenue 365 discontinued the remote printing and scanning of
checks almost five years ago due to security concerns, such that Galette’s “proposed
accommodation would impose a wholly impractical obligation.” Id. at 581. Accordingly,
5
All that remains is Galette’s bare contention that she “mainly handled attorney
files.” Dist. Ct. Dkt. 31-5 at 4. True, evidence that may be considered in determining the
essential functions of a position includes “[t]he amount of time spent on the job
performing the function.” Turner, 440 F.3d at 612 (quoting 29 C.F.R. § 1630.2(n)(3)).
But Galette’s assertion ignores her admission that she had performed the functions
Avenue 365 deemed essential for almost ten years while working in office. Nor is it
surprising that Galette did not devote much, if any, time to these functions while working
outside the office because only “answering emails, making phone calls, and handling
attorney wires” could be done remotely. App. 19.
7
the District Court did not err in granting summary judgment on Galette’s disability
discrimination claim.
B.
The shortcomings of Galette’s disability discrimination claim similarly forestall
her failure to accommodate claim. There is “significant interplay” between discrimination
and failure to accommodate claims under the ADA, such that the latter “may be viewed
simply as a type of discrimination claim, where the relevant adverse employment action
is the employer’s ‘refus[al] to make reasonable accommodations for a[n employee’s]
disabilities.’” Fowler v. AT & T, Inc., 19 F.4th 292, 306 (3d Cir. 2021) (alterations in
original) (quoting Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010)). A failure
to accommodate claim requires the employee to show that she is “qualified to perform the
essential functions of the job.” Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186
(3d Cir. 2009).
As discussed above, Galette “has not met her burden to show that she is otherwise
qualified for her position,” Fowler, 19 F.4th at 307, because she cannot demonstrate that
she is able to perform the essential functions of her job. And an employer is “not required
to accommodate an employee by removing an essential function or restructuring a job so
as to avoid it.” Skerski v. Time Warner Cable Co., 257 F.3d 273, 285 n.4 (3d Cir. 2001).
Because Galette cannot sustain a failure to accommodate claim, the District Court
properly granted summary judgment.
8
C.
As for her age discrimination claim, Galette has not shown that she was terminated
“more likely than not based on the consideration of impermissible factors.” Willis, 808
F.3d at 644 (quoting Pivirotto, 191 F.3d at 352). She claims this element was satisfied
because “other substantially younger [f]unding [s]pecialists (including at least one
working remotely) remained employed when [she] was terminated.” Opening Br. 34. “In
order to determine who might qualify as a similarly situated employee we must look to
the job function, level of supervisory responsibility and salary, as well as other factors
relevant to the particular workplace.” Monaco v. Am. Gen. Assurance Co., 359 F.3d 296,
305 (3d Cir. 2004). Because Galette was “not able to perform all of the duties of a
funding specialist at home,” App. 134, she did not have “the same job responsibilities” as
in-office funding specialists, Monaco, 359 F.3d at 305, rendering them improper
comparators. It is true, as discussed above, that Aguwa, a substantially younger funding
specialist who worked remotely, was not terminated at the same time as Galette. But
“evidence of more favorable treatment cannot be viewed in a vacuum” and instead “the
record must be viewed as a whole.” Willis, 808 F.3d at 646. And although not terminated
in April 2022 alongside Galette, Aguwa was part of a reduction in force only seven
months later. Taken together, there is insufficient evidence that a similarly situated,
substantially younger employee was treated more favorably than Galette.
Galette points to an advertisement for a remote funding specialist position, posted
one month after she was terminated, as evidence of impermissible factors considered in
9
her termination. We have explained that an example of a defendant-employer considering
impermissible factors in the termination of a plaintiff-employee “would be when a
defendant ‘continued to seek applicants from among those having plaintiff’s
qualifications.’” Martinez v. UPMC Susquehanna, 986 F.3d 261, 267 (3d Cir. 2021)
(quoting Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir. 1995)). But when this
advertisement was posted, there was no such position available at Avenue 365. Indeed,
the funding department had not hired anyone since 2021 and, in 2022, Avenue 365
implemented a company-wide hiring freeze and underwent several force reductions. So
while Avenue 365 may have posted an advertisement, it was not seeking applicants such
that the company considered impermissible factors in terminating Galette.
And even if Galette had demonstrated a prima facie case of age discrimination, she
failed to show that Avenue 365’s reason for terminating her was pretextual. See, e.g.,
Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1220 (3d Cir. 1988) (explaining that a plaintiff
“must not only introduce evidence from which a reasonable person could infer that he is
qualified” but “also must introduce evidence that casts doubt on his employer’s
contention that there was a legitimate business justification for letting him go”). Indeed,
Galette admitted that her termination stemmed from her failure to return to in-office
work:
Q. She told you if you came into the office, you [would] have a job, correct?
A. Right, correct.
Q. But if you didn’t come into the office, you would not have a job?
A. Correct.
10
App. 62. Accordingly, the District Court did not err in granting summary judgment on
Galette’s age discrimination claim.6
* * *
The District Court did not err in granting the Defendants’ motion for summary
judgment. So we will affirm.
6
Having determined that the District Court did not err in granting summary
judgment on Galette’s claims, we decline to consider whether Newrez should be held
liable as her employer alongside Avenue 365.
11