The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MIGDALIA FORT, M.D.,
Case No. 21–cv–20656–ESK–AMD
Plaintiff,
v.
OPINION
DOUGLAS A. COLLINS,
Secretary of Veterans Affairs,1
Defendant.
KIEL, U.S.D.J.
After serving 30 years as a psychiatrist for the United States Department
of Veterans Affairs (the Department), plaintiff Migdalia Fort, M.D. received a
pair of cancer diagnoses. She faced substantial medical and financial
hardships in the year that followed. In the weeks leading up to Fort’s return
to the Department, the parties worked toward arriving at a reasonable
accommodation for her to continue receiving her life-sustaining treatment.
But as her return date neared, Fort opted to retire rather than report without
a reasonable accommodation in place. She now brings claims of retaliation
and disability and age discrimination. Though Fort presents a sympathetic
case, it does not necessarily follow that there is liability to be found. Because
1 Robert L. Wilkie served as Secretary of Veteran Affairs at the time this action
was initiated. (ECF No. 1 (Initial Compl.).) Collins assumed the role at the time the
pending motion was noticed (ECF No. 104) and continues to hold that position, see
Douglas A. Collins, U.S. Dep’t of Veterans Affs., https://department.va.gov/staff-
biographies/douglas-a-collins/ (last visited April 27, 2026). Public officers are
automatically substituted by their successor when they cease to hold office. See Fed.
R. Civ. P. 25(d). For ease of reference, this opinion will use the term “Secretary” to
refer to Collins and his predecessors collectively.
I find that the Department worked in good faith to accommodate Fort and no
reasonable jury could conclude that its nondiscriminatory actions were
pretextual, the Secretary’s motion for summary judgment (ECF No. 104) will
be granted.
I. BACKGROUND
Fort was born in 1949 and began work at the Department in 1989 as acting
chief of psychiatry. (ECF No. 89–1 (Sec’y Ex. A) pp. 9:6–7, 85:21–24.)
Manjula Chilakapati, M.D. became the New Jersey deputy chief of mental
health for the Department in 2015 and was Fort’s direct supervisor from that
point on. (ECF No. 89–3 (Sec’y Ex. C) pp. 29:11–15, 36:20–37:7.) Saila
Donepudi, M.D. served as associate chief of staff (ECF No. 89–4 p. 28:10–19)
and supervised Chilakapati (Sec’y Ex. C pp. 33:21–34:13).
Fort worked in a variety of roles during her career (Sec’y Ex. A pp. 86:21–
88:10, 92:14–93:18) before retiring on September 30, 2019 (id. p. 129:20–24;
ECF No. 89–2 (Sec’y Ex. B)). The circumstances of Fort’s retirement and the
events preceding it provide the basis for her pending claims.
A. Fort’s Diagnosis and Initial Actions
On October 9, 2018, Fort emailed Chilakapati stating that she needed to
leave at noon for an eye appointment. (ECF No. 99–3 p. 2.) Fort also advised
that she had two upcoming MRIs that she needed to attend. (Id.)
Chilakapati responded that it was “better to take [a] sick day on Monday, unless
[she was] returning to work” and that attendings were being asked to make up
time if they took part of a day off. (Id.) Three days later, Fort wrote to
Chilakapati explaining that she was suffering from allergic keratoconjunctivitis
and requested that she not be placed in the acute psychiatric unit, where she
stated mold had been found. (ECF No. 99–4 p. 3.) Chilakapati wrote back
that she would have the ice machine in the acute psychiatric unit tested for
mold but she otherwise did not have sufficient staff to cover the unit without
Fort. (Id. pp. 2, 3.) Fort was not subsequently assigned to the acute
psychiatric unit. (Sec’y Ex. A p. 266:13–21; Sec’y Ex. C p. 74:9–11.)2
Fort was diagnosed with brain and breast cancer in September 2018.
(Sec’y Ex. A pp. 199:19–200:10.) She reported her diagnoses to Chilakapati on
October 26, 2018. (ECF No. 89–7 (Sec’y Ex. G) p. 4.) Fort requested the
following week off and stated that she could work a half day on her return date.
(Id.) Chilakapati responded that she had arranged for half days based on a
prior conversation, “but given the amount of sick leave recently, it [is] better to
submit an [Family Medical Leave Act (FMLA)] as this will protect you.” (Id.)
Chilakapati followed stating that she could grant one day off for a procedure,
but it would be difficult to provide an entire week without a doctor’s letter. (Id.
pp. 3, 4.)
On November 6, 2018, Chilakapati emailed Fort—copying Donepudi and
Gilbert Morris, who served as Fort’s timekeeper—stating that Fort could not
continue to take half days without first obtaining approval, citing human
resources guidelines. (ECF No. 99–14 pp. 2, 3.) Later that day, Chilakapati
sent Fort a copy of the time and attendance policy and stated that she would
like to support Fort but needed to follow human resources guidelines. (ECF
No. 99–15.) She added that she would have human resources send Fort FMLA
paperwork. (Id. p. 2.)
2 Fort’s statement of material facts alleges mold exposure dating back to the
1990s. (Fort Statement of Facts pp. 16, 17.) The Secretary responds that Fort’s
claims of mold exposure are unrelated to the discrimination and retaliation claims
alleged, and form the basis of a separate Federal Tort Claims Act and Federal
Employees’ Compensation Act case within this District. (ECF No. 105 (Sec’y Reply
Br.) p. 11.) Indeed, Fort has filed a separate complaint alleging that she was exposed
to mold on Department grounds. (Docket No. 22–00583, ECF No. 59.) Insofar as
Fort believes that the Secretary is mistaken in asserting that her mold exposure claims
are unrelated to her instant complaint, that argument was waived when she failed to
rebut the Secretary at the motion hearing.
Policy No. HR–03 states that annual and sick leave are to be charged in
full-day increments for physicians except when such absence is excused by a
supervisor or official, respectively. (ECF No. 89–6 (Sec’y Ex. F) pp. 4, 8.)
Authority for such excusals is to be exercised only when the absence is of short
duration and is not interpreted to cover a major portion of the day. (Id.) VA
Handbook 5975.1 states that, after consulting with the National Regional
Accommodations Coordinator or the regional Office of the General Counsel, a
designated management official may deny an accommodation request on the
basis of undue hardship. (ECF No. 105–3 p. 33.)3 Determination that an
accommodation would be an undue hardship means that the Department “finds
that a specific accommodation would be significantly difficult to provide, or
would fundamentally alter the nature of the operations of the affected
[Department] organization.” (Id.)
Fort emailed Chilakapati again on November 14, 2018, stating that she
needed to leave that day at noon for an appointment. (ECF No. 89–9 p. 2.)
She acknowledged Chilakapati’s prior email about half days and stated that
“since I am already here this will be the last one??” (Id.) Chilakapati granted
Fort a full sick day but stated that she could not “keep granting the [half] days
since we are required to work 40 hours per week” and there was greater
scrutiny within the Department. (Id.) In a separate email exchange that
same day, Chilakapati wrote that she needed Fort to come in early or stay late
if she was going to take half days. (ECF No. 89–8 p. 2.) She stated that she
confirmed applicable regulations with human resources and other attendings
3 Fort makes reference to VA Handbook 5975.1 in her statement of material facts.
(Fort Statement of Facts pp. 21, 22, 27.) But as the Secretary notes (ECF No. 105–1
(Sec’y Counterstatement of Facts) pp. 11, 12, 20), Fort supports these references with
citations to VA Directive 5021 (see ECF No. 99–17).
usually emailed her when they needed to leave work early or come in late and
would also inform her of when they anticipated making up the hours. (Id.)
Chilakapati contacted Jerri Casazza, labor and employee relations
specialist, on November 14 and November 15, 2018 seeking human resources
guidance on Fort’s requests. (Sec’y Ex. G pp. 2, 3.) Casazza responded on
November 27, 2018 stating that half days of sick leave were inappropriate and
full days should be taken. (Id. p. 2.)
B. Surgery and Leave
Fort underwent brain surgery on November 29, 2018 and resection of her
breast tumor on December 3, 2018. (Sec’y Ex. A p. 261:4–11.) Fort applied for
leave under a voluntary leave transfer program on January 18, 2019. (ECF
No. 89–11.) The program permitted individuals running out of their own leave
to receive leave donated by others. (ECF No. 89–10 (Sec’y Ex. J) p. 64:18–21.)
Following an apparent issue with the Department of Homeland Security, 80
hours of leave from Fort’s sister were applied to Fort for the third pay period of
2019. (ECF No. 89–12 (Sec’y Ex. L) p. 3; ECF No. 89–14 (Sec’y Ex. N) p. 2.)
Another donation from Fort’s sister was emailed to Casazza on May 11,
2019, but she was no longer working with the Department at that time and did
not have access to her Department emails. (Sec’y Ex. J pp. 130:2–131:8.)
Fort’s sister emailed Donepudi and others on June 28, 2019 stating that she
had been submitting leave donations and would continue to do so. (ECF No.
89–13 (Sec’y Ex. M) p. 2.) Donepudi emailed Regina Pinks, administrative
officer, and others to confirm whether the donation had already been used.
(Id.) Pinks confirmed that the last donation submitted by Fort’s sister had
been processed in February. (Sec’y Ex. N p. 2.)4
4 Fort claims that Pinks was referring to a different leave donation in her July 1,
2019 email. (Fort Statement of Facts p. 5.) This disagreement is not accompanied
by a supporting citation. See L. Civ. R. 56.1(a). The Court notes that Chilakapati
approved a separate 10–day donation on July 19, 2019. (ECF No. 90–1 p. 2.) Fort
In a December 5, 2018 letter, Fort’s physician stated that she had
undergone surgery on December 2, 2018 and could return to work by January
2, 2019. (ECF No. 90–2.)5 Chilakapati testified that Fort did not return to
work on January 2, 2019 and that she had difficulty contacting her. (Sec’y Ex.
C p. 204:15–205:10.)6 Fort’s physician later wrote that she would not be able
to return to work in January 2019, but would likely return in April 2019
instead. (Id. p. 216:1–23.) Subsequent documentation sought for Fort to
remain off duty until September 30, 2019. (ECF No. 90–4 (Sec’y Ex. S) p. 2.)
On May 20, 2019, Fort emailed Chilakapati, copying Pinks and others,
providing work and prognosis information and asking about potential disability
pay. (ECF No. 90–3 (Sec’y Ex. R) p. 3.) Fort later explained her financial
situation and stated that she believed that donated leave had not yet been
applied. (Id. pp. 2, 3.) Chilakapati emailed Mary D. Forest, human resources
specialist, and asked whether retirement and disability retirement information
had been sent to Fort. (Id. p. 2.)
C. Planned Return and Initial
Accommodation Requests
In a July 10, 2019 letter, Chilakapati advised Fort that her FMLA leave
was exhausted on April 12, 2019, but that—considering Fort’s apparent ability
testified that she was informed by multiple people that leave had been donated to her
but was held up by delays in approval by Donepudi and Chilakapati, though she could
not remember specifics. (Sec’y Ex. A pp. 124:3–126:9.)
5 Fort received treatment in Puerto Rico after her daughter located an oncologist
there willing to treat her. (Sec’y Ex. A pp. 22:14–23:6.)
6 Fort states that she filed an Equal Employment Opportunity Commission
(EEOC) complaint on January 18, 2019. (Fort Statement of Facts p. 26.) She does
not support this proposition with the complaint itself, but rather a December 10, 2019
formal statement regarding a post-retirement complaint. (ECF No. 99–11.) The
Secretary does not dispute that a complaint was filed on January 18, 2019. (ECF No.
89 p. 10 n. 3; Sec’y Counterstatement of Facts p. 19.)
to return to work by October 1, 2019—she would be granted leave without pay
through September 30, 2019. (Sec’y Ex. S p. 2.) Chilakapati stated that work
needs were such that any additional request would not be granted with the
exception of available sick leave. (Id.) The letter went on to provide various
options for Fort if she could not return, including FMLA leave, requesting a
reasonable accommodation, disability or regular retirement, and resignation.
(Id. pp. 2, 3.) Fort was asked to inform Chilakapati of how she wished to
proceed by close of business September 30, 2019. (Id. p. 2.)
On September 6, 2019, Roxanne Robinson-Shaw, human resources
specialist, sent Fort forms to be completed in order to make a reasonable
accommodation request. (ECF No. 90–7.) Fort responded on September 10,
2019. (ECF No. 90–8 (Sec’y Ex. W).) The specific request stated that Fort
would require an intravenous infusion at a hospital in San Juan, Puerto Rico
every three weeks. (Id. p. 5.) The accommodation was for three days off every
three weeks, during which Fort would travel to Puerto Rico on the Wednesday,
undergo evaluation on the Thursday, and receive the infusion on the Friday.
(Id.) The request noted that Fort was to return to work on September 30, 2019
and would need to first travel to Puerto Rico for treatment from October 16,
2019 to October 18, 2019. (Id.) This course of treatment was to continue until
February 2020, at which point Fort was expected to potentially be able to switch
to oral chemotherapy. (Id.)
Robinson-Shaw emailed Donepudi on September 13, 2019, stating that
Fort’s request was “to have off from work Wednesday through Friday to travel
to PR for treatment” until February 2020. (ECF No. 90–9 pp. 2, 3.) Donepudi
responded to Robinson-Shaw that her supervisor did not “think that this would
be a reasonable accommodation if she [cannot] come to work 3 days a week.”
(ECF No. 99–36 (Fort Ex. AI).) This stance was purportedly communicated to
Fort (ECF No. 99 (Fort Statement of Facts) pp. 28, 29)7 and Fort testified that
Chilakapati tried to force her to transfer her treatment to New Jersey (Sec’y
Ex. A p. 108:3–22).
On September 19, 2019, Robinson-Shaw emailed Fort to follow up on a
voicemail regarding Fort transferring her treatment to the United States.
(ECF No. 90–11 (Sec’y Ex. Z) p. 2.) She recommended that Fort email her
supervisor and service chief to make her reasonable accommodation request.
(Id.) Fort responded that she would and also asked for “the retirement plan to
consider that, too, just in case.” (Id.) Fort stated if she was to retire, she
wanted to do so by the end of the month for pension purposes and opined that
she was not wanted or expected back. (Id.) A retirement meeting was
scheduled for September 30, 2019. (ECF No. 90–14.)
Later on September 19, 2019, Fort wrote to Donepudi and Chilakapati,
copying Robinson-Shaw, stating that she understood service needs and their
preference that she work fulltime upon her return. (ECF No. 90–10 (Sec’y Ex.
Y) p. 3.) She stated that she had spoken with her doctor and that she was
receiving assistance in transferring her treatment to New Jersey. (Id.)
Under this plan, Fort required the ability to leave work at noon every third
Friday in October, November, and December before switching to oral
chemotherapy in January. (Id.) She asked Donepudi and Chilakapati to
7 At least some of the support Fort relies on to evidence that her request for three
days off every three weeks was denied comes from a September 25, 2019 email from
Robinson-Shaw following Fort notifying the Department that she could not transfer
her treatment to New Jersey. (ECF No. 90–15 (Sec’y Ex. AD) p. 3.) In that email,
Robinson-Shaw communicated that she understood Fort to have requested three days
off each week, which Donepudi and Chilakapati believed would represent a hardship.
(Id. p. 3.) Robinson-Shaw said that she had not previously stated that the Department
could not grant Fort’s request for three days off every three weeks. (Id.) Fort’s
reference to Donepudi writing that she did not think Fort’s request was a reasonable
accommodation (Fort Statement of Facts p. 28) similarly was in the context of Fort
being absent three days per week (Fort Ex. AI).
“[p]lease let [her] know if this accommodation is possible so … that [she could]
consolidate [her] plans to return to work.” (Id.) Robinson-Shaw responded
later that day stating that Donepudi was willing to accept the accommodation
request and asked Fort to provide a note stating that her treatment had been
transferred to New Jersey. (Id. p. 2.)
D. Final Request and Retirement
Fort emailed Robinson-Shaw on September 25, 2019 stating that her care
could not be transferred to New Jersey. (Sec’y Ex. AD pp. 3, 4.) Instead, she
would require three days of sick leave every three weeks to travel, be evaluated,
receive her infusion, and recover. (Id. p. 3.) Fort wrote that, during a phone
conversation, Robinson-Shaw had indicated that the Department could not
accommodate her request for three days off every three weeks and asked for
Robinson-Shaw to confirm that understanding. (Id. p. 4.) Robinson-Shaw
wrote back stating that it was “not correct” that she had stated that the
Department could not grant the request. (Id. p. 3.) Rather, it was her
understanding that Fort had requested three days off “each week” and
Donepudi and Chilakapati had agreed that that would have resulted in a
hardship on service. (Id.) Robinson-Shaw wrote that she would bring her
request to the Department for consideration and asked Fort to provide the time
period for which she was requesting the accommodation. (Id.)
Fort wrote back rebutting Robinson-Shaw’s characterization that she had
submitted multiple accommodation requests and, instead, stated she was
seeking three days off every three weeks, not every week. (Id. p. 2.) Fort
indicated that this request was previously verbally declined, but that she
believed it to be reasonable, noting that it did not seem as though her absence
was causing an undue hardship among her colleagues. (Id.)
The next day, Robinson-Shaw noted the apparent “confusion” regarding
Fort’s accommodation request and stated that she would get back to her
regarding her request. (Id.) Later, Robinson-Shaw emailed Fort stating that
her supervisors were asking for additional information regarding her duties
upon her return and during the reasonable accommodation period. (ECF No.
90–16 (Sec’y Ex. AE) p. 3.) A meeting with Donepudi and Chilakapati was
scheduled for September 30, 2019 as “part of the interactive process … to
consider possible work adjustments and other factors to consider for” Fort’s
requested accommodation. (Id.)
Fort replied two days later that, when she was first diagnosed with cancer,
Chilakapati did not permit her to use half days and likened her diagnosis to
“normal aging.” (Id. p. 2.) She accused Donepudi and Chilakapati of
pressuring her to reveal HIPAA-protected information under duress, stated
that Chilakapati lowered her clinical evaluation grade for the first time in 30
years following her diagnosis, and opined that she had already provided more
information regarding her reasonable accommodation request than was
required. (Id.)
Fort predicted that she would be given “the run-around” at the meeting
followed by either a denial of her request or other adverse employment action
in retaliation for seeking a reasonable accommodation. (Id.) Fort stated that
she intended to retire on September 30, 2019 and asked Robinson-Shaw for
assistance in streamlining the retirement process and in helping her initiate an
EEOC claim for age and disability discrimination. (Id.) On September 30,
2019, Fort retired from the Department. (Sec’y Ex. B.)
E. Procedural History
Fort filed this action in the District of Puerto Rico on March 18, 2021
(Initial Compl.) and thereafter amended (ECF No. 4). The Secretary’s motion
to dismiss for improper venue (ECF No. 15) was denied, but the case was
transferred to this District (ECF No. 25).
Fort’s second amended complaint asserts three counts: 1) violation of the
Age Discrimination in Employment Act (ADEA), 2) discrimination on the basis
of disability in violation of the Americans with Disabilities Act (ADA) and
Rehabilitation Act, and 3) discrimination and retaliation in violation of Title
VII. (ECF No. 38 (Second Am. Compl.) pp. 16–19.) The Secretary filed an
answer (ECF No. 40) and the case proceeded to discovery. On March 28, 2024,
the case was reassigned to me. (ECF No. 67.)
On January 15, 2025, the Secretary moved for summary judgment (ECF
No. 88), to which Fort filed an opposition (ECF No. 98 (Fort Opp’n Br.)). I
entered an Appendix N order in response to the Secretary’s request for an
adjournment to file a reply. (ECF No. 101.) The Secretary’s original motion
was administratively terminated, but I stated that the parties’ existing briefs
and exhibits would be relied upon in deciding the motion. (Id.)
The Secretary filed a new notice of motion (ECF No. 104) followed by the
reply brief (Sec’y Reply Br.). I thereafter held a hearing during which the
parties presented oral argument. (ECF No. 109.)
II. MOTIONS FOR SUMMARY JUDGMENT
The Federal Rules of Civil Procedure dictate that a “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). For a fact to be material, “its resolution must have the
potential to affect the outcome of the suit.” SodexoMAGIC, LLC v. Drexel
Univ., 24 F.4th 183, 203 (3d Cir. 2022). “A dispute is genuine ‘if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.’”
Id. at 203–04 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Inferences are to be drawn in favor of the nonmovant. Id. at 204.
Local Civil Rule 56.1 provides that “the movant shall furnish a statement
which sets forth material facts as to which there does not exist a genuine issue,
in separately numbered paragraphs citing to the affidavits and other
documents submitted in support of the motion.” L. Civ. R. 56.1(a). A court
may exercise its discretion in denying a motion that does not comply with Local
Civil Rule 56.1. See Anise v. JPMorgan Chase Bank, Case No. 16–08125, 2016
WL 9281267, at *1 (D.N.J. Nov. 29, 2016). Local Civil Rule 56.1 further
requires that the party opposing summary judgment file a responsive statement
of material facts responding to each paragraph of the movant’s statement,
asserting agreement or disagreement, “and, if not agreed, stating each material
fact in dispute and citing to the affidavits and other documents submitted in
connection with the motion ….” L. Civ. R. 56.1(a). Any statement that is not
clearly and substantively denied with an appropriate citation to the record is
deemed admitted pursuant to Local Civil Rule 56.1. See Coastal Jersey
Holdings, LLC v. Giordano, Case No. 22–02024, 2023 WL 7545301, at *5
(D.N.J. Nov. 14, 2023); see also Fed. R. Civ. P. 56(e) (stating that—upon a
party’s failure to properly address an assertion of fact—a court may provide an
opportunity to address that fact, consider the fact undisputed, grant summary
judgment if the movant is entitled to it, or issue any other appropriate order).8
III. DISCUSSION
At the heart of Fort’s claims is the allegation that the Department
discriminated against her on the basis of her disability, specifically by declining
8 These provisions apply to the parties’ motion practice. For instance, Fort
supports various paragraphs within her statement of material facts with citations to
the second amended complaint. (Fort Statement of Facts pp. 15–17, 20, 23, 24, 27.)
But “[t]he non-moving party must ‘go beyond the pleadings’ and ‘designate specific
facts’ in the record ‘showing that there is a genuine issue for trial.’” United States ex
rel. Greenfield v. Medco Health Sols., Inc., 880 F.3d 89, 93 (3d Cir. 2018) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). More generally, the parties at
times cite to supporting exhibits in their statements of material fact that do not support
the proposition asserted. The Court has reviewed the parties’ briefing and exhibits
and arrived at the instant decision based on what is supported by the record.
to provide her a reasonable accommodation. Because my analysis as to this
claim will inform the analysis of the remaining claims, I begin there.
A. Disability Discrimination (Count 2)
1. Standard
A prima facie case of ADA disability discrimination requires the plaintiff
to show that they 1) are disabled within the meaning of the ADA, 2) are
otherwise qualified to perform the essential functions of the job with or without
a reasonable accommodation, and 3) have suffered an adverse employment
decision as a result of discrimination. Mascarenhas v. Rutgers, State Univ.,
412 F. Supp. 3d 500, 508 (D.N.J. 2019). The McDonnell Douglas burden-
shifting framework applies to disability discrimination claims. Id. at 507.
After plaintiff first establishes a prima facie discrimination claim, the burden
shifts to the defendant to articulate a legitimate, nondiscriminatory reason for
the action. Id. at 507–08. If the defendant provides a legitimate,
nondiscriminatory reason, the burden shifts a final time to the plaintiff to prove
by a preponderance of the evidence that the defendant’s proffered reason was
not the true reason for the action but rather a pretext for discrimination. Id.
at 508.
The substantive standards for determining liability are the same under
the ADA and Rehabilitation Act. Gibbs v. City of Pittsburgh, 989 F.3d 226, 229
(3d Cir. 2021). I will therefore not distinguish between them below.
2. Failure to Accommodate and
Constructive Discharge
a. Standards and Party
Arguments
I find it most useful to work backward in the chronology of Fort’s claims.
I therefore begin with her claim that the Department failed to provide her with
a reasonable accommodation and she was constructively discharged and forced
into retirement. A plaintiff asserting a failure-to-accommodate claim must
establish that 1) they were disabled and the employer knew it, 2) they requested
an accommodation or assistance, 3) their employer did not make a good faith
effort to assist them, and 4) they could have been reasonably accommodated.
Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir. 2017). A failure-
to-accommodate claim may be viewed as a type of disability discrimination
claim wherein the adverse employment action is the refusal to make a
reasonable accommodation. Fowler v. AT & T, Inc., 19 F.4th 292, 306 (3d Cir.
2021).
Courts employ an objective test to determine whether an employee may
recover on a constructive discharge claim. Colwell v. Rite Aid Corp., 602 F.3d
495, 502 (3d Cir. 2010). The test is “whether a reasonable jury could find that
the [employer] permitted conditions so unpleasant or difficult that a reasonable
person would have felt compelled to resign.” Id. (alteration in original)
(quoting Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167 (3d Cir. 2001)).
Factors courts have considered include whether the employer 1) threatened the
employee with discharge or urged or suggested that they retire, 2) demoted the
employee, 3) reduced the employee’s pay or benefits, 4) involuntarily
transferred the employee to a less desirable position, 5) altered the employee’s
job responsibilities, or 6) provided unsatisfactory job evaluations. Id. at 503.
The Secretary asserts that Fort’s failure to participate in the interactive
meeting on September 30, 2019 precludes her claim for failure to accommodate.
(ECF No. 88–2 (Sec’y Mot. Br.) pp. 47, 48.) Instead, Fort elected to retire,
depriving the Department of the opportunity to fully consider her disability and
the accommodation sought. (Id. pp. 48, 49.) Fort was also not constructively
discharged, according to the Secretary, because she was not at the Department
during her absence, meaning that she cannot articulate an intolerable work
condition. (Id. p. 34.) To the extent that Fort has set out a prima facie case
of discrimination, the Secretary notes that the Department provided Fort with
24 additional weeks of leave to accommodate her condition and approved what
was understood to be her accommodation request. (Id. pp. 35, 36.) When Fort
changed her request back to three days off every three weeks, the Department
scheduled an interactive meeting. (Id. p. 36.) Fort cannot show that
discriminatory animus motivated the Department’s actions, according to the
Secretary. (Id. p. 37.)
Fort responds that her failure-to-accommodate claim is supported by the
record and a question of fact remains whether the Department acted in good
faith. (Fort Opp’n Br. pp. 44, 45.) She claims pretext in the Secretary’s
account of events, demonstrated by the fact that Fort was told to return by
October 1, 2019 or be fired, her request for three days off every three weeks was
denied, and she was criticized for allegedly making multiple accommodation
requests. (Id. p. 38.) Fort characterizes the scheduled interactive meeting as
a “sham” and notes that Donepudi and Chilakapati declined to meet with her
on September 30, 2019. (Id. p. 39.) Any claim that her request for three days
off every three weeks would have been a hardship is undercut by the
Department’s ability to operate during her absence and that a posting for her
job was not published until at least a month after she retired. (Id. pp. 39, 40.)
Lastly, Fort maintains that she was constructively discharged because she had
no choice but to retire after her accommodation request was denied. (Id. p. 33.)
Several relevant factors, including threats of termination if she did not return
by October 1, 2019 and suggestions that she retire, are present in this case,
according to Fort. (Id. pp. 34, 35.)
b. Failure to Accommodate
My review of the record does not lead me to the same conclusions as Fort.
On July 10, 2019, Chilakapati wrote to Fort acknowledging both that she had
not reported to work since December 3, 2018 and that she had submitted a
medical note indicating that she would remain off duty until September 30,
2019. (Sec’y Ex. S p. 2.) Chilakapati granted Fort continued leave through
that date, advised that further leave could not be approved, and provided Fort
with options to consider, including making a reasonable accommodation
request. (Id. pp. 2, 3.) While Fort now characterizes this as a threat of being
fired if she did not return to work, as noted during the motion hearing, Fort’s
scheduled date of return was based on her own medical documentation.
Fort made a request for an accommodation on September 10, 2019. (Sec’y
Ex. W.) A reasonable accommodation includes an employer’s reasonable
efforts to assist the employee and communicate in good faith. Colwell, 602
F.3d at 504. Once an accommodation request is received, the employer must
assist the employee through a flexible, interactive process. Petti v. Ocean
Cnty. Bd. of Health, 831 F. App’x 59, 63 (3d Cir. 2020) “[B]oth employers and
employees ‘have a duty to assist in the search for appropriate reasonable
accommodation and to act in good faith.’” Id. (quoting Taylor v. Phoenixville
Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999)).
Fort’s request sought an accommodation that she be able to take three
days off every three weeks to travel to Puerto Rico for treatment. (Sec’y Ex. W
p. 5.) The first such accommodation was needed starting October 16, 2019 and
it was anticipated that Fort would need three days off every three weeks until
February 2020. (Id.) Robinson-Shaw relayed this request to Donepudi on
September 13, 2019, but did not specify that the absences were only needed
every three weeks. (Fort Ex. AI p. 2.) Donepudi responded on September 17,
2019 that her supervisor did not think that it would be reasonable for Fort to
be absent three days per week. (Id.)
On September 19, 2019, Fort wrote to Donepudi and Chilakapati that she
was working toward transferring her treatment to New Jersey, in which case
she would require the ability to leave at noon every third Friday until January
2020. (Sec’y Ex. Y p. 3.) Though Fort now states that her only
accommodation request was denied (Fort Statement of Facts p. 9), Fort
concluded her September 19, 2019 email by asking for confirmation whether
“this accommodation is possible” (Sec’y Ex. Y p. 3). Robinson-Shaw wrote back
that same day that Donepudi was willing to grant Fort that accommodation.
(Id. p. 2.) At that point, a reasonable accommodation had been requested by
Fort and granted by the Department.
That arrangement was short-lived because Fort was ultimately unable to
transfer her treatment to New Jersey, necessitating a return to Fort’s original
request for three days off every three weeks. (Sec’y Ex. AD pp. 3, 4.) Fort
expressly asked whether she was correct in understanding that Robinson-Shaw
had told her that the accommodation could not be granted, to which Robinson-
Shaw responded that that was incorrect. (Id.) Rather, Robinson-Shaw
seemed to be confused—believing that Fort’s original request was for three days
off per week—and indicated that Donepudi and Chilakapati had concluded that
such an arrangement would present a hardship. (Id. p. 3.) A meeting was
scheduled for September 30, 2019 as “part of the interactive process” in
response to Fort’s supervisors’ request for additional information regarding her
job duties. (Sec’y Ex. AE p. 3.)
Confusion regarding her original accommodation request was no doubt
frustrating for Fort. But the purpose of the interactive process is to identify
both the employee’s specific limitations and potential accommodation options.
Bernhard v. Brown & Brown of Lehigh Valley, Inc., 720 F. Supp. 2d 694, 700
(E.D. Pa. 2010). Believing that the September 30, 2019 meeting would be
followed by the Department declining her request or performing some other
adverse action, Fort elected to retire rather than participate in the meeting.
(Sec’y Ex. AE p. 2.) Having made that decision, I conclude that no reasonable
jury could find for her with respect to her failure-to-accommodate claim.
As an initial matter, and as intimated during the motion hearing, I remain
unconvinced that Fort’s request for three days off every three weeks
represented a reasonable accommodation. See Kinsella v. Ill. Bell Tel. Co.,
LLC., Case No. 18–07803, 2021 WL 3737731, at *7 (N.D. Ill. Aug. 24, 2021)
(concluding that the plaintiff’s preferred accommodation—five days of paid
leave per month—was unreasonable under the ADA); see also Blake v. UPMC
Passavant Hosp., 394 F. App’x 940, 941 (3d Cir. 2010) (finding that the
employee phlebotomist was not qualified for his position because he could not
attend work regularly); but see Lewis v. Univ. of Pa., 779 F. App’x 920, 923 (3d
Cir. 2019) (noting that the reasonableness of an accommodation is a question of
fact).
More significantly, and accepting the reasonableness of the requested
accommodation, I find that no reasonable jury could find that the Department
did not make a good faith effort to assist Fort. See Capps, 847 F.3d at 157.
To the contrary, Chilakapati directed Fort to information concerning the filing
of a reasonable accommodation request in the same letter in which she extended
Fort’s leave in response to her most recent anticipated return date. (Sec’y Ex.
S pp. 2, 3.) Fort’s second accommodation request was granted. (Sec’y Ex. Y
p. 2.)
Fort eventually had to go back to her initial accommodation request—
three days off every three weeks—and Fort claims that she documented the
verbal denials she had received in response to her initial request. (Fort
Statement of Facts pp. 28, 29.) Putting aside that an employer need not
provide the exact accommodation requested, see Yovtcheva v. City of Phila.
Water Dep’t, 518 F. App’x 116, 122 (3d Cir. 2013), at least one of these purported
documentations was Fort’s September 25, 2019 email exchange with Robinson-
Shaw (Sec’y Ex. AD). During this exchange, Fort referred to a past phone
conversation and specifically asked Robinson-Shaw to confirm whether it was
correct that the Department could not grant her requested accommodation of
three days off every three weeks. (Id. p. 4.) Robinson-Shaw replied that she
was incorrect and indicated that the believed hardship on service was in
response to an understanding that Fort had requested three days off per week.
(Id. p. 3.) The next day, Robinson-Shaw confirmed that there was confusion
associated with Fort’s request (id. p. 2) and scheduled a meeting for further
discussion (Sec’y Ex. AE p. 3).
At this point, three relevant facts had been communicated to Fort: 1) her
understanding that the Department could not grant her desired accommodation
was incorrect, 2) Department members had been under the mistaken
impression that she sought three days off each week, and 3) her supervisors
wished to further discuss her desired accommodation. Her understanding that
her preferred accommodation had already been denied had been contradicted
by Robinson-Shaw. And any subjective belief that she had that the scheduled
meeting was a sham and likely to result in denial of her request or an adverse
employment action was untethered to what she had been explicitly informed.
She was free at that point to retire, but “‘[a]n employer cannot be faulted if after
conferring with the employee to find possible accommodations,’ the interactive
process breaks down due to the employee’s actions or omissions.” Baker v. City
of Washington, Case No. 19–00113, 2021 WL 2379709, at *13 (W.D. Pa. June
10, 2021) (quoting Petti, 831 F. App’x at 64).
These findings are not intended to minimize the seriousness of Fort’s
condition or her related stress. Fort no doubt would have preferred to know
the exact accommodation available to her in advance of her next treatment,
which was under three weeks away. But by unilaterally withdrawing from the
interactive process rather than engaging with the Department’s apparent good
faith efforts to reach an accommodation, she extinguished any subsequently
asserted claim of failure to accommodate.
c. Constructive Discharge
Fort’s claim for constructive discharge fails, too, and for similar reasons.
For the purposes of disposition, I presume that Fort can assert a constructive
discharge claim despite being on leave in the months preceding her retirement.
See Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 46 (1st Cir.
2003) (considering actions that took place during the plaintiff’s medical leave in
analyzing her constructive discharge claim).
Again, constructive discharge is an objective test that turns on whether a
reasonable jury could conclude that the employer “permitted conditions so
unpleasant or difficult that a reasonable person would have felt compelled to
resign.” Colwell, 602 F.3d at 502 (quoting Duffy, 265 F.3d at 167). Fort
identifies several circumstances that fit within the relevant factors used within
the Third Circuit, including her facing termination if she did not return to work
by October 1, 2019, it being suggested that she retire, her accommodation being
denied, and her receiving an unsatisfactory evaluation. (Fort Opp’n Br. pp. 34,
35.)
For the same reasons articulated above, I find that the Department did
not deny her accommodation request and the October 1, 2019 return date was
informed by Fort’s own physician. Further, while an unsatisfactory evaluation
may support a constructive discharge claim, Colwell, 602 F.3d at 503, Fort does
not claim that she received an unsatisfactory evaluation. Rather, she received
an overall rating of “outstanding” with a reduction in clinical competence from
“outstanding” to “high satisfactory.” (Sec’y Ex. A pp. 244:23–245:17.) This
reduction is insufficient to support her claim. See Clowes v. Allegheny Valley
Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993) (finding that the plaintiff did not
receive an unsatisfactory job evaluation, but rather a rating of “fair”).
This leaves Fort’s claims that it was suggested that she retire. The
record shows that the subject of retirement was broached at least in part by
Fort herself. For instance, information regarding retirement and disability
retirement was sent to her following her inquiry into how to obtain disability
benefits. (Sec’y Ex. R pp. 2, 3.) Later, Fort requested that Robinson-Shaw
send her retirement information during the email exchange regarding her
accommodation. (Sec’y Ex. Z p. 2.) Fort would be quick to note that she also
stated in that email that she did not believe that her supervisors wanted her
back, but Fort brings her subjective belief to an objective standard.9 Fort
points to no evidence in the record demonstrating that her retirement was
involuntary. See Jacoby v. Arkema Inc., Case No. 06–02339, 2007 WL
2955593, at *14–15 (E.D. Pa. Oct. 9, 2007) (noting, as part of an ADEA claim,
that the plaintiff was not told that his retirement was mandatory and no
reasonable person could find receipt of retirement papers that they requested
to be so intolerable as to compel retirement).
Fort therefore does not meet any of the factors traditionally relied upon to
determine whether an employee has been constructively discharged. For this
reason, and because I find that no reasonable jury could conclude that the
Department permitted conditions so unpleasant as to compel a reasonable
person to resign, summary judgment will be entered in favor of the Secretary.
3. Additional Disability
Discrimination Claims
Fort points to additional allegedly adverse actions, including the
Department’s interpretation of policies that forced her to exhaust sick leave and
delays in processing donated leave. (Fort Opp’n Br. pp. 31, 32.) She asserts
that the Secretary’s proffered rationales are pretextual, citing her supervisor’s
discretion to have provided her half days and overall lack of compassion. (Id.
9 Fort likewise asserts that Donepudi and Chilakapati declined to meet with her
on September 30, 2019. (Fort Statement of Facts p. 34.) However, at this point, Fort
had already stated that she intended to retire and file an EEOC complaint. (Sec’y Ex.
AE p. 2.)
pp. 37, 38.) The Secretary responds that Fort identifies nominal actions, such
as lower evaluations, that do not rise to the level of an adverse employment
action. (Sec’y Mot. Br. pp. 33, 34; Sec’y Reply Br. p. 7.)
Again, to establish a prima facie disability discrimination claim, Fort must
show that she “has suffered an otherwise adverse employment decision as a
result of discrimination.” Mascarenhas, 412 F. Supp. 3d at 508 (quoting Gaul
v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998)). An adverse
employment action is “some harm” to a term or condition of employment, an
action in which the employee was treated worse due to their protected
characteristic. Peifer v. Bd. of Prob. and Parole, 106 F.4th 270, 277 (3d Cir.
2024) (quoting Muldrow v. City of St. Louis, 601 U.S. 346, 355 (2024)).
With respect to donated time, Fort testified that she was told by multiple
people that leave donated to her had been held up, but did not recall specifics.
(Sec’y Ex. A pp. 124:3–126:9.) Looking through the record, an email exchange
including Chilakapati, Pinks, and others stated that after participants “kept
calling the Homeland Security office,” a response was finally received and 80
hours of donated leave—presumably donated by Fort’s sister—was available.
(Sec’y Ex. L p. 3.) Fort’s sister later emailed Donepudi and Fort on June 28,
2019 stating that she had donated leave to Fort and would continue doing so.
(Sec’y Ex. M p. 2.) An initial attempt to email the Department had been made
on May 11, 2019, but was sent to a retired employee. (Sec’y Ex. J p. 130:2–8.)
The email itself does not indicate when the donations were made. Assuming
that there was a delay in processing donated leave, it is unclear whether it was
of such extent as to constitute an adverse employment action. See cf. Karam
v. Cnty. of Rensselaer, Case No. 13–01018, 2016 WL 51252, at *14 (N.D.N.Y.
Jan. 4, 2016) (finding that the inability to utilize donated sick leave constituted
an adverse employment action under Section 1981 and New York law).
The other actions cited by Fort similarly do not clearly constitute adverse
employment actions. See Sorensen v. Wallingford Bd. of Educ., 742 F. Supp.
3d 240, 252 (D. Conn. 2024) (finding that the defendant’s requirement that the
plaintiff use leave time or sick days for the half days he did not work did not
materially alter the terms or conditions of his employment); Mickens v. Lowe’s
Cos., Inc., Case 07–06148, 2009 WL 4911952, at *9 (D.N.J. Dec. 14, 2009)
(finding that a negative performance evaluation did not change the plaintiff’s
employment status).
Nonetheless accepting these actions as adverse, Fort is unable to overcome
the McDonnell Douglas burden-shifting framework. The Secretary asserts
legitimate, nondiscriminatory reasons for the challenged actions. For
instance, the Secretary points to a policy common to all physicians for why Fort
was told she could not take incremental leave. (Sec’y Mot. Br. p. 13.) Indeed,
Policy No. HR–03 provides that physicians’ annual and sick leave are to be
charged in full-day increments absent approval. (Sec’y Ex. F pp. 4, 8.) Such
approvals are to be exercised only when absences are of short duration. (Id.)
Application of a neutral policy satisfies an employer’s obligation to provide a
legitimate, nondiscriminatory reason for an employment action. See Otero v.
Port Auth. of N.Y. and N.J., Case No. 19–12634, 2024 WL 3200024, at *9 (D.N.J.
June 26, 2024).
Similarly, the Secretary states that any delays associated with processing
Fort’s sister’s leave donations were due to issues with Homeland Security—
where Fort’s sister worked—and the fact that a retired Department employee
was emailed. (Sec’y Mot. Br. pp. 16, 17, 17 n. 5; Sec’y Ex. J p. 130:2–8; Sec’y Ex.
L p. 3.) The Secretary attributes the reduction in clinical competence score to
Fort’s continued prescription of an older antipsychotic medication. (Sec’y Ex.
A pp. 244:18–245:17; Sec’y Counterstatement of Facts p. 5.)
Under the burden-shifting framework, Fort must now point to evidence to
rebut these legitimate reasons as pretextual. Mascarenhas, 412 F. Supp. 3d
at 509. She fails to do so.
Of the asserted examples of pretext not rejected above, Fort points to the
removal of her timekeeper for—in his opinion—being too kind to Fort, a lack of
compassion toward Fort, and the fact that Department policies permitted the
use of discretion. (Fort Opp’n Br. pp. 37, 38.) Elsewhere, Fort references
Chilakapati’s characterization of her ailments as “normal aging” and stating
that Fort was “crying” about her conditions. (Id. p. 31.)
Reviewing the evidence in the light most favorable to her, I find that Fort’s
proffered examples of pretext at best demonstrate that members of the
Department were insensitive to her needs and were imprudent or ineffective in
assisting her. Fort may have been disappointed in her supervisors’ responses
during her diagnosis and treatment, but an employer “has no obligation to be
compassionate, and its failure to be so is not evidence of pretext.” Silver v.
Entergy Nuclear Operations, Inc., 290 F. Supp. 3d 234, 249 (S.D.N.Y. 2017). It
is not enough that the Department may have been wrong in its proffered reason.
See Parrotta v. PECO Energy Co., 363 F. Supp. 3d 577, 596 (E.D. Pa. 2019).
The proffered reason must be so wrong that it could not have been the real
reason for its actions. See id. “[T]he factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the employer is
wise, shrewd, prudent, or competent.” Id. (alteration in original) (quoting
Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)). Because I
find that no reasonable jury could conclude that the proffered reasons were
pretextual, summary judgment will be entered in favor of the Secretary.
B. Age Discrimination (Count 1)
An ADEA claim applies the same McDonnell Douglas burden-shifting
framework described above. See Willis v. UPMC Children’s Hosp. of
Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015). To set forth a prima facie age
discrimination claim, the plaintiff must have 1) been at least 40 years old, 2)
suffered an adverse employment action, 3) been qualified for the position, and
4) replaced by another employee of sufficiently younger age as to support an
inference of discriminatory motive. Id. To prevail on an ADEA claim, the
plaintiff must establish by a preponderance of the evidence that age was the
but-for cause of the identified adverse action. Id.
The Secretary argues that Fort offers no evidence that she was treated
less favorably than other employees and—instead—relies on vague allegations.
(Id. pp. 30, 31.) Fort’s subjective belief that she was discriminated against is
insufficient to stave off summary judgment, according to the Secretary. (Id.
pp. 31, 32.)
Fort focuses on the final prong of the analysis, stating that there is
evidence of discriminatory motive, including comparator evidence. (Fort
Opp’n Br. pp. 27, 28.) She points to younger employees who were purportedly
provided reasonable accommodations, while she was not. (Id. pp. 28, 29.)
To begin, insofar as Fort relies on purported denial of an accommodation,
unreasonable interpretation of Department policies, and lack of empathy, my
above analysis and rejection of these arguments apply equally here. See
Walker v. U.S. Sec’y of the Air Force, 7 F. Supp. 3d 438, 453 n. 3 (D.N.J. 2014)
(“[T]he ADA, ADEA and Title VII all ... prohibit discrimination in employment
against members of certain classes .... the methods and manner of proof under
one statute should inform the standards under the others as well.” (omissions
in original) (quoting Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div.,
60 F.3d 153, 157 (3d Cir.1995)).
To the extent that Fort submits comparator evidence,10 she relies largely
on the testimony of Pinks. Pinks, an administrative officer who was 62 at the
time of her deposition, testified that she was permitted to work from home for
about three months following knee surgery. (ECF No. 99–30 pp. 14:9–11,
23:13–24:18, 34:5–35:17.) Pinks also testified that a younger woman she
supervised was permitted to work from home certain days for six months due
to a back injury. (Id. pp. 36:9–37:7.)
Fort fails, though, to demonstrate that Pinks or her subordinate were
similarly situated to her. When a plaintiff seeks to make out a prima facie
case by referring to similarly situated employees, those employees must be
similarly situated “in all relevant respects,” such as having the same
supervisors and job responsibilities. Chase v. Frontier Commc’ns Corp., 361 F.
Supp. 3d 423, 436–37 (M.D. Pa. 2019) (quoting Wesley v. Simona Am. Inc., Case
No. 15–01110, 2016 WL 8613937, at *6 (M.D. Pa. Nov. 3, 2016), report and
recommendation adopted, 2017 WL 1173931 (M.D. Pa. Mar. 29, 2017)). Here,
10 The Secretary asserts that the second amended complaint does not allege a
disparate treatment claim and one should not be considered here. (Sec’y Mot. Br.
p. 28.) Even if one is asserted, it fails for lack of comparator evidence, according to the
Secretary. (Id. pp. 28–32.) Fort maintains that Counts 1 and 2 allege that she was
discriminated against due to her age and disability and was treated differently for
those reasons. (Fort Opp’n Br. pp. 24, 25.) At the motion hearing, counsel conceded
that a disparate treatment claim was not expressly pleaded, but that there was a basis
for one and sufficient comparator evidence had been presented. I agree with counsel
that no disparate treatment claim is expressly pleaded. This alone warrants rejection
of any distinct disparate treatment claim now asserted. See Warfield v. SEPTA, 460
F. App’x 127, 132 (3d Cir. 2012) (“A plaintiff may not amend a complaint by raising
arguments for the first time in a brief in opposition to a motion for summary
judgment.”); see also Gurvey v. Twp. of Montclair, Case No. 19–17525, 2022 WL
970303, at *18 n. 23 (D.N.J. Mar. 31, 2022) (declining to consider reformulated claims
at summary judgment). Even accepting that such a claim was pleaded, Fort fails to
identify a sufficient comparator for the reasons that follow. This conclusion, arrived
at here while considering Fort’s age discrimination claim, also applies to her disability
discrimination claim insofar as she relies on these comparators. See Jenkins v.
Cornerstone Relocation Grp., LLC, Case No. 23–01755, 2025 WL 360553, at *7 (D.N.J.
Jan. 31, 2025) (“Disparate treatment claims under the ADA [and] ADEA … generally
follow the same standards.”).
Pinks—who worked in administration—and her subordinate are inapt
comparators for Fort to set forth her discrimination claim. See Baron v. Abbott
Lab’ys, 672 F. App’x 158, 161 (3d Cir. 2016) (finding that neither identified
employee was similarly situated to the plaintiff because they possessed
different responsibilities).
Fort attempts to preserve her claim by stating that she “testified that she
recalled several other employees receiving reasonable accommodation,
including at least one psychiatrist like herself.” (Fort Opp’n Br. p. 28.) But
that overstates her testimony. Fort testified that she thought that another
psychiatrist, supervised by Chilakapati, was provided favorable treatment that
she did not receive. (Sec’y Ex. A pp. 82:15–83:17.) She could not remember
the fellow psychiatrist’s name or face. (Id. p. 83:5–8.)
Following Fort’s deposition, the Secretary submitted a request for
production seeking “all documents supporting the contention that other
[Department] psychiatrists received more favorable treatment as it relates to
taking medical leave and seeking accommodations.” (ECF No. 90–17 p. 9.)
Fort’s counsel responded by referring to Fort’s deposition testimony and stating
that Fort “is not in possession of responsive documents.” (ECF No. 90–18 p. 2.)
Her reference, then, to an unidentified psychiatrist to whom she seeks to
compare herself is insufficient to preserve her claim. See Bock v. Novartis
Pharms. Corp., 661 F. App’x 227, 233 (3d Cir. 2016) (“[S]peculation cannot stave
off summary judgment; ‘[t]o the contrary, “summary judgment is essentially
‘put up or shut up’ time for the non-moving party” who “must rebut the motion
with facts in the record and cannot rest solely on assertions made in the
pleadings, legal memoranda, or oral argument.”’” (second alteration in original)
(quoting Wiest v. Tyco Elecs. Corp., 812 F.3d 319, 330 (3d Cir. 2016)).
Lastly, even if I were to conclude that a reasonable jury could find that
Fort has set forth a prima facie claim of age discrimination, and I do not, the
claim fails under the same burden-shifting analysis conducted above. See Ball
v. Einstein Cmty. Health Assocs., Inc., 514 F. App’x 196, 199–202 (3d Cir. 2013)
(analyzing the pretext analysis for the plaintiff’s ADEA and ADA claims
together). Because I find that Fort has failed to rebut the legitimate,
nondiscriminatory reasons proffered by the Secretary, her ADEA claim
nonetheless fails.
C. Retaliation Claim (Count 3)
Title VII prohibits discrimination against an employee due to their
opposition to an unlawful employment practice or filing of a charge. 42 U.S.C.
§ 2000e–3(a). To set forth a prima facie Title VII retaliation claim, a plaintiff
must show that 1) they engaged in activity protected by Title VII, 2) their
employer took an adverse action against them, and 3) a causal connection exists
between the protected activity and adverse action. Smith v. City of Atl. City,
138 F.4th 759, 775 (3d Cir. 2025); see also Proudfoot v. Arnold Logistics, LLC,
629 F. App’x 303, 306 n. 3 (3d Cir. 2015) (noting that the antiretaliation
provisions of Title VII, the ADA, and ADEA are “nearly identical”) (quoting
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002)). The now-
familiar burden-shifting framework applied above also applies to Title VII
retaliation claims. Smith, 138 F.4th at 775.
The Secretary advances that Fort is unable to meet the second and third
prongs of the prima facie analysis. (Sec’y Mot. Br. pp. 38, 39.) The
Department did not constructively discharge Fort or delay processing leave
donations, according to the Secretary, and other identified actions such as
requiring her to use full days of leave and lowering an evaluation score were
not materially adverse. (Id. pp. 40–42.) Even assuming that the adverse
action requirement is met, there is no indication that there was a causal
connection between the protected activity and adverse actions. (Id. p. 42.)
Several alleged actions took place before Fort filed her EEOC complaint and
others—with the exception of the initial processing of leave donation
paperwork—were not within sufficient temporal proximity to the complaint.
(Id. pp. 42–44.) Finally, the Secretary states that the Department had
legitimate reasons for its actions and Fort cannot establish that those reasons
were pretextual. (Id. pp. 44, 45.)
Fort replies that numerous actions were taken against her—culminating
in her constructive termination—and the Secretary does not dispute that these
actions occurred, just that they were nominal. (Fort Opp’n Br. pp. 40, 41.) In
addition to the EEOC complaint, Fort points to her accommodation requests
and asserts that additional evidence aside from temporal proximity may
demonstrate a causal connection. (Id. pp. 42, 43.) Finally, Fort argues that
the Secretary’s proffered reasons are pretextual for similar reasons as argued
in support of her discrimination claim. (Id. p. 43.)
I note that a broader definition of adverse actions apply to retaliation
claims as compared to discrimination claims. See Swain v. City of Vineland,
457 F. App’x 107, 111 (3d Cir. 2012). While an adverse employment action
requires harm to a term or condition of employment for a discrimination claim,
see Peifer, 106 F.4th at 277, an adverse employment action in the retaliation
sense “must be ‘materially adverse[,]’ such that it is ‘harmful to the point that
[it] could well dissuade a reasonable worker from making or supporting a
charge of discrimination,’” Smith, 138 F.4th at 775 (alterations in original)
(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
This difference does not resuscitate Fort’s constructive discharge or
failure-to-accommodate claims. “The Third Circuit has noted that a failure-to-
accommodate claim cannot also be characterized as a retaliation claim because
an employer’s declination to provide an accommodation constitutes an ‘alleged
failure[ ] to fulfill the affirmative duties prescribed by the ADA’ rather than an
action prohibited by the statute.” Vought v. Twin Tier Hosp., L.L.C., Case No.
18–1113, 2019 WL 2501470, at *7 (M.D. Pa. June 17, 2019) (alteration in
original) (quoting Pagonakis v. Express LLC, 315 F. App’x 425, 431 (3d Cir.
2009)). Fort therefore cannot repackage her failure-to-accommodate claim
rejected above to support her retaliation claim. I further find that my
conclusion above that Fort has failed to support that she was constructively
discharged applies here. See McGlotten v. Omnimax Int’l, Inc., 657 F. Supp.
3d 663, 675 (E.D. Pa. 2023) (applying the same standard as used above in
analyzing a Title VII retaliation claim premised on constructive discharge).
This leaves Fort’s claims that she was given a reduced performance rating,
required to take full days off for medical appointments, and unable to timely
access donated leave due to delays. I am satisfied that these actions may
dissuade a reasonable employee from engaging in protected activity. See
Smith, 138 F.4th at 775. While some of the Department’s actions took place
prior to Fort’s EEOC complaint, I find that even interpreting requests related
to half days and the acute psychiatric unit as protected activity,11 the claims
fail under the burden-shifting analysis.
As discussed above, the Department policy requiring leave to be taken in
full-day increments applied generally to all physicians. (Sec’y Mot. Br. p. 45;
Sec’y Ex. F pp. 4, 8.) Delays associated with processing donated leave are
attributable to issues within Homeland Security and a retired employee being
emailed. (Sec’y Mot. Br. pp. 16, 17, 17 n. 5; Sec’y Ex. J p. 130:2–8; Sec’y Ex. L
p. 3.) Finally, the reduction in Fort’s clinical competence score was due to her
prescribing an older medication. (Sec’y Ex. A pp. 244:18–245:17; Sec’y
11 Insofar as Fort’s retaliation claim is premised under Title VII (Second Am.
Compl. p. 19), “[r]equesting an accommodation alone is not protected activity under
Title VII ….” Leite v. Sch. Dist. of Phila., Case No. 22–00306, 2023 WL 12242345, at
*1 n. 1 (E.D. Pa. Feb. 27, 2023) (applying Title VII retaliation to a pregnancy
discrimination claim).
Counterstatement of Facts p. 5.) These represent legitimate, non-retaliatory
reasons for the cited actions.
The burden now flips back to Fort. And it is not enough that Fort may
point to evidence that gives rise to an inference of a causal connection between
her protected activity and the adverse actions. See Young v. City of Phila.
Police Dep’t, 651 F. App’x 90, 95–96 (3d Cir. 2016). While such evidence may
be sufficient at the prima facie stage, causation differs once the burden-shifting
framework arrives at whether the defendant’s proffered nondiscriminatory
reasons are pretextual. Id. Rather, “to prove causation at the pretext stage,
the plaintiff must show that she would not have suffered an adverse
employment action ‘but for’ her protected activity.” Id. at 96 (quoting Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). Courts have rejected
evidence such as temporal proximity and similar conduct by fellow employees
to demonstrate causation. See, e.g., Wilmoth v. Arpin Am. Moving Sys., LLC,
Case No. 19–19187, 2024 WL 3440218, at *11 (D.N.J. July 17, 2024).
Fort refers the Court back to her claims of pretext as part of her
discrimination claim. (Fort Opp’n Br. pp. 36–40, 43.) These claims, such as
lack of compassion and failure to exercise discretion in providing half days of
leave, do not provide a basis for a reasonable jury to conclude that the
challenged actions would not have occurred but for Fort’s protected activity.
See Demarzo v. Del. River and Bay Auth., Case No. 23–22623, 2026 WL 836900,
at *10 (D.N.J. Mar. 26, 2026) (finding that the plaintiff’s questioning of the
wisdom of the defendant’s termination decision did “not create a genuine
dispute that the [reason] ‘was false, and that retaliation was the real reason for
the adverse employment action’” (quoting Smith, 138 F.4th at 778)); Glaesener
v. Port Auth. of N.Y. and N.J., Case No. 20–02294, 2023 WL 8272054, at *8
(D.N.J. Nov. 30, 2023) (concluding that a failure to exercise discretion in
awarding a promotion to a lower-scoring candidate did not evidence pretext).
Summary judgment will therefore be entered against Fort as to her retaliation
claim.
IV. CONCLUSION
For the foregoing reasons, the Secretary’s motion for summary judgment
(ECF No. 104) will be GRANTED. An appropriate order accompanies this
opinion.
/s/ Edward S. Kiel
EDWARD S. KIEL
UNITED STATES DISTRICT JUDGE
Dated: April 29, 2026