The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SUZANNE SULLIVAN, )
)
Plaintiff, )
) 2:22-cv-00116
v. )
)
EXACT SCIENCES CORPORATION, et )
al., )
)
Defendants. )
OPINION
Mark R. Hornak, United States District Judge
During one of the deadliest pandemics in history, medical professionals moved quickly to
produce a vaccine against the novel coronavirus, commonly known as COVID-19. With
innovative mRNA technology, scientists believed they could create a vaccine using only the
virus’s genetic sequence, instead of using a weakened form of the physical virus. This plan would
bypass the slow and complex process of growing live viruses in labs, thus putting a COVID-19
vaccine out for public administration much faster than usual. It worked. COVID-19 vaccines were
developed at an unprecedented pace, becoming widely available less than a full year after the
virus’s genetic sequencing.
While tens of millions received the mRNA vaccine without concern, this record-breaking
time of development gave some others pause. For these individuals, the speed at which the
COVID-19 vaccines were created raised concerns of safety and efficacy. These concerns were
only heightened in an environment where COVID-19 and the public and medical response to it
had become a widespread political issue. For some, it was not off base during this time to be
cautious about receiving a medical injection that was made quickly using an innovative vaccination
technology, especially when even the most discerning listener did not have to look far to find
various commentators, scientific or otherwise, questioning its legitimacy. For others, the vaccine’s
arrival generated confidence in their ability to safely return to daily activities unimpeded by more
complicated COVID-19 precautions and concerns.
But there was still a pandemic going on, and for many, remaining unvaccinated was seen
as posing risks for themselves and those around them. For many employers whose employees
could work remotely — performing most if not all of their job’s functions safely and essentially
alone at home — this was not an issue. For others, working face-to-face was central to the job.
Some employers in this latter category saw that requiring vaccination for their employees could
greatly reduce the risk of COVID-19 transmission on the job while allowing the course of business
activities to resume and proceed. These employers began to require vaccination for any position
involving face-to-face interaction. This at times caused friction when such requirements rubbed
up against the vaccine skepticism some employees harbored. And this friction had the capacity to
fuel workplace passions, leading to disputes, confrontations, and even employment terminations
when the employer’s directives collided with the views and concerns of involved employees.
That narrative in some ways lays down the background for this case. But to be clear, to
decide the matters now front and center in this case in the Defendants’ Motion for Summary
Judgment, the Court need not resolve those broader competing public and personal interests, nor
is it charged with assessing the wisdom of the workplace vaccination policies involved here or the
perception of employees about them. The issues presently before the Court are more constrained
and instead require the Court to consider whether the decisions in play here could be found by a
rational jury to violate federal and state statutes addressing disability discrimination in the
workplace and providing for workplace leave.
Suzanne Sullivan (“Plaintiff” or “Ms. Sullivan”) worked as a Professional Medical
Representative for Exact Sciences Corporation (“Exact”), selling cancer screening technology to
health care providers. Because these sales occurred face-to-face, there came a time when Exact
required all employees in Ms. Sullivan’s position to receive the COVID-19 vaccine to remain in
their job. Ms. Sullivan was skeptical of the safety and efficacy of the COVID-19 vaccine, and she
and at least one other co-worker had expressed this skepticism to Exact’s upper management.
Central to the issues in resolving the pending Motion, she also had previously experienced
complications with influenza vaccine injections, and she requested a temporary exception from
her employer’s vaccine requirement to undergo medical testing to ensure the COVID-19 vaccine
would be safe for her. Her request was eventually denied after some time and several general
extensions to Exact’s vaccination timetable, and she choose employment termination over
receiving the COVID-19 vaccine or applying to fill another role within her employer.
Now Ms. Sullivan brings this lawsuit against Exact (her employer), and its Chief Executive
Officer Kevin Conroy. In her Amended Complaint, Ms. Sullivan alleges disability discrimination,
unlawful retaliation, and violations of her rights under the Americans with Disabilities Act
(“ADA”), the Pennsylvania Human Relations Act (“PHRA”), and the federal Family Medical
Leave Act (“FMLA”). (ECF No. 22). Defendants have filed a Motion for Summary Judgment.
(ECF No. 72). The Motion has been fully briefed, (ECF Nos. 81, 86), the Court has heard Oral
Argument on the parties’ positions, (ECF No. 99), and the parties have had the chance to file
Supplemental Memoranda as directed by the Court relative to issues the Court identified as being
tied into the arguments of the parties, (ECF Nos. 102, 103, 107, 108). For the reasons that follow,
Defendants’ Motion for Summary Judgement will be GRANTED IN PART and DENIED IN
PART.
BACKGROUND
Ms. Sullivan began working for Exact in late 2019, a few months before the spread of
COVID-19 was declared a pandemic, as a Professional Medical Representative (“PMR”),
promoting the benefits of using Exact’s cancer screening technology to health care providers. (ECF
No. 80 ¶¶ 7, 8). Ms. Sullivan made her sales pitches face-to-face with providers in their facilities,
sometimes even in their offices. (ECF No. 80 ¶ 11). Ms. Sullivan typically saw between six and
ten providers a day, and had a company-assigned goal to visit around 40 providers per week. (ECF
No. 80 ¶¶ 9, 10).
Then, the pandemic. As COVID-19 spread rapidly across the country in early 2020 Exact
pulled its PMRs from the field. After public understanding of COVID-19’s transmission
mechanism improved, Exact redeployed its PMRs in late June 2020 with certain safety policies in
place. (ECF No. 80 ¶ 15). These policies mandated masking, testing, and social distancing. PMRs
were required to always maintain a safe distance from others while working and to wear a face
mask when interacting with providers. (ECF No. 75-1 at 90:23-91:5). PMRs were also required to
take a COVID-19 test every fourteen days. (ECF No. 82-19 at 5).
Exact announced its COVID-19 vaccination policy on July 30, 2021. (ECF No. 80 ¶ 16).
COVID-19 vaccines were by then widely available, and CEO Kevin Conroy announced that any
Exact employee whose job included in-person work would need to be fully vaccinated by
September 15, 2021. (ECF No. 80 ¶ 16). This deadline was later extended to October 1, 2021.
(ECF No. 80 ¶ 17). Mr. Conroy also announced a process for employees to request
accommodations and exemptions from this policy for qualifying medical and religious reasons.
Employees making such requests were often offered an accommodation in the form of the
opportunity to apply for an alternative role in the company and were given preference for
placement in such roles during the application process. (ECF No. 80 ¶¶ 22, 24). Notably, this was
not a guarantee of placement in another role.
Ms. Sullivan did not want to receive the COVID-19 vaccine. She was concerned that the
vaccines were unsafe and that they had not undergone adequate testing during their development
and subsequent rollout. Her concern at least partially stemmed from personal experiences she had
when receiving the influenza vaccine (commonly referred to as the flu shot) in 2005, 2016, and in
2021. (ECF No. 80 ¶ 62). Ms. Sullivan reported an adverse reaction after each flu shot, with her
reaction in 2021 being the most severe.
Ms. Sullivan elected to take the influenza vaccine in August 2021 as a trial run for her
possibly receiving the COVID-19 vaccine. After receiving that flu shot, she reported experiencing
“shortness of breath, rash, hives, itchiness in the back of the neck and throat, throat tightening,
feeling out of sorts, malaise, and the swelling of the tongue and lips.” (ECF No. 80 ¶ 161). These
symptoms developed soon after the vaccine was administered, prompting her to immediately seek
the medical advice of Dr. Robert J. Schmidt. Dr. Schmidt was not Ms. Sullivan’s regular personal
physician, but she chose to consult with him after first attempting to contact her regular doctor and
learning they were unavailable. (ECF No. 80 ¶ 163).
Ms. Sullivan spoke with Dr. Schmidt over the phone on August 11, 2021, about thirty
minutes after she received the flu shot. (ECF No. 80 ¶ 63). Dr. Schmidt told Ms. Sullivan that
based on her reported symptoms he believed she was suffering from hypoxia, a condition where
low levels of oxygen in the blood causes symptoms of malaise and shortness of breath. (ECF No.
82-15 at 43:20-45:16). Dr. Schmidt informed Ms. Sullivan that hypoxia can be caused by
anaphylaxis and advised her to go to the emergency room. (ECF No. 82-15 at 68:22-24). However,
out of what she says was her concern about exposure to COVID-19 within the emergency room,
she refused to go. (ECF No. 82-1 at 111:11-14). Dr. Schmidt prescribed prednisone and an EpiPen,
and instructed Ms. Sullivan to take Benadryl. (ECF No. 82-1 at 112:10-20). The next day Ms.
Sullivan’s symptoms had largely abated. (ECF No. 82-1 at 114:12-17).
Ms. Sullivan had a follow up appointment in person with Dr. Schmidt on August 12, 2021.
(ECF No. 80 ¶ 66). Dr. Schmidt concluded that the symptoms Ms. Sullivan experienced after
receiving the influenza vaccine were consistent with early anaphylaxis. Dr. Schmidt was
concerned that Ms. Sullivan may be allergic to the flu shot and that the COVID-19 vaccine could
cause a similar reaction. He told her she should not take the COVID-19 vaccine until she had
undergone additional testing to determine it was safe for her to do so. (ECF No. 82-15 at 50:8-12).
Dr. Schmidt was concerned that the adverse reaction from the influenza vaccine was caused
by some of the vaccine components also present in the COVID-19 shot. Specifically, he believed
the reaction may have been caused by an allergy to “the excipients, which is a non-antibody
stimulating part of vaccines that were in the flu vaccine.” (ECF No. 82-15 at 50:24-51:1). These
excipients are “in both the flu vaccine and the Johnson and Johnson vaccine . . . [and] cross-reacts
with an excipient in both the Pfizer and Moderna COVID-19 vaccines.” (ECF No. 82-37 at 1).
Dr. Schmidt recommended Ms. Sullivan contact Dr. Andrej Petrov, an allergy specialist, who
could perform a skin test to see if Ms. Sullivan was allergic to these excipients.
Despite seeing Dr. Schmidt on August 12, 2021, Ms. Sullivan was not scheduled for a skin
test with Dr. Petrov until December 6, 2021. (ECF No. 80 ¶ 80). Thus, the results of this skin test
would not be available until well after the October 1st deadline that Exact had set for employees
to become fully vaccinated. The record does not detail why this time period was so long, given the
speedier timelines of other events germane to this matter, but Ms. Sullivan stated that when she
attempted to get an earlier appointment with Dr. Petrov by explaining that she needed the results
to comply with an impending work deadline, she was unsuccessful. (ECF No. 82-12 at 65:14–
66:13). The record also shows that she did not try to contact any other doctor with the same
specialty as Dr. Petrov to try and schedule an earlier skin test appointment, opting to stick “with
the doctor that Dr. Schmidt had familiarity with and recommended.” (ECF No. 75-2 at 93:14-17).
Ms. Sullivan did keep her original December appointment with Dr. Petrov, who after an initial
evaluation, recommended she come back the next month to undergo a skin test. (ECF No. 80 ¶
95). But because Ms. Sullivan contracted COVID-19 three days prior to that scheduled skin test
date, she would not receive a skin test from Dr. Petrov until years later at this Court’s direction
and as part of this litigation. (ECF No. 65).
Ms. Sullivan requested an accommodation from Exact extending the October 1, 2021
vaccination deadline until after she received the results of the skin test from Dr. Petrov, results that
at the time she believed she would receive in December of that year. Ms. Sullivan was told that
Exact would consider extensions of the deadline to comply with the vaccination requirement for
employees who are actively engaged in the accommodation process. (ECF No. 80 ¶ 49). On August
6, 2021, she received an accommodation request form and was told to have her healthcare provider
answer the form’s questions. (ECF No. 80 ¶ 74). Dr. Schmidt provided his answers, and Ms.
Sullivan submitted a completed form on August 18, 2021. (ECF No. 80 ¶ 76).
On the completed accommodation request form, Dr. Schmidt informed Exact that it was
his medical opinion that Ms. Sullivan should not receive the COVID-19 vaccine until she had
undergone further testing to assess whether the issues with the flu vaccine that Ms. Sullivan
experienced would carry over to the COVID-19 vaccine. Dr. Schmidt wrote that Ms. Sullivan “has
a significant possibility of experiencing a [] life-threatening reaction to the” COVID-19 vaccine.
(ECF No. 82-37 at 1). This was due to her “very uncommon medical problem” which Dr. Schmidt
wrote required “a medical exemption and accommodations made” for her continued health and
safety. (ECF No. 82-37 at 3).
While Ms. Sullivan’s request for accommodation was pending, she and several of her
likeminded colleagues attempted to persuade higher ups at Exact to change the company’s
vaccination policy. They shared news articles describing the drawbacks of using the COVID-19
vaccine. One colleague, Dillan Roth,1 sent an email which led to a hotly charged phone call that
he had with Defendant Kevin Conroy on the morning of August 31, 2021. (ECF No. 85 ¶ 247).
That day, Mr. Roth and Mr. Conroy spoke by phone about the necessity of Exact’s
vaccination policy. Although it started off cordial, that conversation soon turned sour. Mr. Conroy
told Mr. Roth he was appalled at the tone and composition of the email Mr. Roth had sent to him.
Mr. Roth apologized for the composition but refused to apologize for the tone. Mr. Conroy was
surprised, and asked Mr. Roth if he took the same approach in his interactions with doctors while
in the field. Mr. Roth replied affirmatively and stated, “we’re told to be aggressive.” (ECF No. 82-
2 at 50:17-18). Mr. Conroy said Mr. Roth had “audacity” and told him that “maybe some other
employer will appreciate that.” (ECF No. 82-3 at 68:21-69:2). Mr. Roth asked Mr. Conroy if he
would reconsider Exact’s vaccination policy. Mr. Conroy said he would not, and before he hung
up, he told Mr. Roth: “I know you’re going to tell . . . your []2 friends about this, so tell them this.
If they want to make a decision that I think is a selfish one, then they will need to find another
employer to work for.” (ECF No. 82-3 at 57:8-57:16).
The accommodation request Ms. Sullivan submitted on August 18, 2021 was denied on
September 27, 2021. (ECF No. 80 ¶¶ 76, 78). She was informed that she had three options: (1)
1 Mr. Roth is not a named party to the present lawsuit.
2 Mr. Roth claims Defendant Conroy said “little friends.” Mr. Conroy disputes this. (ECF No. 82-3 at 57:15-16).
become fully COVID-19 vaccinated; (2) apply for an alternate role within Exact for which she was
qualified; or (3) resign with severance. Ms. Sullivan was also told she had the option to delay full
vaccination until November 25, 2021 if she committed to being fully vaccinated by that date. (ECF
No. 82-17). Ms. Sullivan declined the proposed extension. She instead informed Exact of her
intention to resign with severance. She was sent over a severance agreement, but ultimately
decided not to sign it. Her employment was terminated on October 4, 2021. (ECF No. 80 ¶ 93).
The parties disagree about who was in charge of denying Ms. Sullivan’s accommodation
request. Ms. Sullivan alleges that Defendant Conroy directly made the decision to deny her
accommodation request. Sarah Condella, a member of Exact’s Human Resources team, testified
that Defendant Conroy was “the primary decisionmaker” responsible for deciding if employees
were granted exceptions to the vaccine requirement or not. (ECF No. 80-4 at 41:4-13). Defendants
dispute this and argue that while Mr. Conroy was responsible for policy-level decisions about
vaccine accommodations generally, he was not involved in any individual request, including Ms.
Sullivan’s. According to Defendants, Mr. Conroy was not even aware Ms. Sullivan had made an
accommodation request, or that it was denied. (ECF No. 75-1 at 123:14-18).
Exact had granted some extension requests made by other employees on terms specifically
related to those requests. In total, fifteen PMRs, including Ms. Sullivan, requested a medical
exemption from the COVID-19 vaccination requirement. (ECF No. 87-3 at 5). Ten of these PMRs
later withdrew their requests. (ECF No. 87-3 at 5). Three, including Ms. Sullivan, were terminated
from employment. (ECF No. 87-3 at 5). Two others were allowed temporary extensions for
medical reasons. (ECF No. 87-3 at 5). The first of these was a PMR who had tested positive for
COVID-19 shortly before the vaccination deadline, constraining the time window in which they
could safely receive the next vaccine. (ECF No. 87-3 at 6). The second was a PMR who had a
scheduled medical procedure in early October 2021 and for whom the vaccination would cause
complications. (ECF No. 87-3 at 6). Both employees were required to receive the COVID-19
vaccination as soon as they were medically cleared to do so to remain in their PMR roles. (ECF
No. 87-3 at 6).
Ms. Sullivan filed this lawsuit on July 13, 2022, (ECF No. 1), and then filed an Amended
Complaint on February 21, 2023, (ECF No. 22). Defendants subsequently filed a Motion to
Compel Plaintiff’s Independent Medical Examination. (ECF No. 46). The Honorable Judge Kim
R. Gibson, who presided over this case until it was reassigned to this member of the Court, granted
that Motion. (ECF No. 65). Judge Gibson ordered Dr. Petrov administer a skin test to Ms. Sullivan,
specifically testing for allergies to “[c]omponents of the flu vaccines that were available in 2021;
and [c]omponents of the COVID-19 vaccines that were available in 2021.” (ECF No. 68 ¶ 3).
Dr. Petrov administered that skin test on August 4, 2023. Unfortunately, the 2021 influenza
vaccine could not be tested as it had been superseded by later versions, so Plaintiff was instead
tested for the influenza vaccine available in 2023. (ECF No 82-39 at 3). As for the COVID-19
vaccine components, Plaintiff was tested for an adverse reaction from “polysorbate 80” and
“polyethylene glycol” — the two excipients Dr. Schmidt had been worried about. (ECF No. 82-
39 at 3). There is no evidence in the record that these two excipients differed or otherwise had
materially changed from those used in the 2021 versions of the COVID-19 vaccine. Based on the
results of the skin test, Dr. Petrov concluded that Ms. Sullivan had a “possible . . . hypersensitivity”
to the flu vaccine and recommended that if she take it again, she do it through a split dose.3 (ECF
No 82-40). However, Dr. Petrov made it clear that Ms. Sullivan could safely “proceed with COVID
vaccination.” (ECF No. 82-40).
3 A split dose is a vaccine administration strategy where the dosage is not administered through a single shot. Instead,
the dose is “split” between two shots that are administered separately.
Defendants filed this Motion for Summary Judgment. Ms. Sullivan filed her Response, and
Defendants filed their Reply. The Court heard Oral Argument on the matter. The Court also
requested Supplemental Memoranda from the parties to address issues that the Court concluded
were involved in the disposition of the Motion and which had not been fully briefed previously.
All relevant documents have been filed and the Defendants’ Motion is ripe for review.
DISCUSSION
Ms. Sullivan brings five counts. Count I, brought against Exact only, alleges disability
discrimination in violation of the ADA and the PHRA. Court II, brought against all Defendants,
alleges unlawful retaliation, again in violation of the ADA and PHRA. Count III, brought against
Exact only, alleges a violation of Ms. Sullivan’s rights under the FMLA. Count IV, also brought
against Exact alone, alleges unlawful retaliation and discrimination in violation of the FMLA.
Finally, Count V is exclusively brought against Mr. Conroy and accuses him of aiding and abetting
the alleged unlawful discrimination in violation of the PHRA. Defendants argue they are entitled
to summary judgment on all five Counts.
I. Standard of Review.
Under Federal Rule of Civil Procedure 56, the Court must enter summary judgment if
“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 factual dispute is “genuine only if there is a sufficient
evidentiary basis on which a reasonable jury could find for the non-moving party,” and it is
material “only if it might affect the outcome of the suit under governing law.” Kaucher v. Cnty. of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006). To prevent summary judgment, the non-movant must
present evidence that creates a genuine dispute of material fact with respect to every essential
element of the cause of action. See Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013).
In deciding whether to grant summary judgment, the Court does not weigh the evidence or
make credibility determinations. Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).
Rather, the Court must view the evidence in the record in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The resulting
report of a medical examination conducted pursuant to Federal Rule of Civil Procedure 35 is
evidence the Court is permitted to evaluate at the summary judgment stage, as it is evidence in the
record. Fed. R. Civ. P. 56(c)(3). If there is a conflict between the evidence presented by the parties,
“[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn
in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). While the Court is
charged with determining whether there are any genuine issues of fact, and if there are, whether
they are material, the Court does not make credibility assessments in resolving such a motion.
II. There Are Sufficient Questions Of Fact To Allow Plaintiff’s ADA and PHRA
Disability Discrimination Claims To Go To Trial.
The ADA and the PHRA are both workplace anti-discrimination statutes. While the PHRA
is a state law passed by the Pennsylvania legislature, it is “to be interpreted as identical to federal
anti-discrimination laws except where there is something specifically different in its language
requiring that it be treated differently.” Fasold v. Justice, 409 F.3d 178, 184 n.8 (3d Cir. 2005). In
cases involving a claim under both the ADA and PHRA, “our analysis of an ADA claim applies
equally to a PHRA claim.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999)
(citing Kelly v. Drezel Univ., 94 F.3d 102, 105 (3d Cir. 1996)). Thus, the Court will analyze both
Plaintiff’s ADA and PHRA claim simultaneously.
The ADA prohibits discrimination “against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a). A qualified individual is any employee who “with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8). An employer can be found to have
unlawfully discriminated against an employee by “not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability.”
42 U.S.C. § 12112(b)(5)(A). An employee who experienced this kind of unlawful discrimination
may bring a failure-to-accommodate claim against their employer.4
A plaintiff bringing a failure-to-accommodate claim must establish: “(1) he was disabled
and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did
not make a good faith effort to assist; and (4) he could have been reasonably accommodated.”
Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir. 2017) (quoting Armstrong v. Burdette
Tomlin Mem’l Hosp., 438 F.3d 240, 246 (3d Cir. 2006)). Making a good faith effort to assist
requires an employer to engage in an “interactive process” to identify an appropriate
accommodation. Taylor, 184 F.3d at 312. And a proposed accommodation is by definition
unreasonable if it places an “undue hardship” on the employer. Buskirk v. Apollo Metals, 307 F.3d
160, 168 (3d Cir. 2002).
a. Ms. Sullivan’s Status As A Qualified Individual.
As a threshold matter, Ms. Sullivan cannot bring any disability discrimination claim if she
is not a qualified individual. A qualified individual is defined by their ability to perform the
essential functions of the job with or without an accommodation. “Whether a job duty is an
‘essential function’ turns on whether it is ‘fundamental’ to the employment position.” Turner v.
Hershey Chocolate USA, 440 F.3d 604, 612 (3d Cir. 2006) (quoting 29 C.F.R. § 1630.2(n)(1)). An
4 Generally, disability discrimination claims under the ADA are analyzed under the familiar burden shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Fowler v. AT&T, Inc., 19 F.4th 292, 298 (3d Cir.
2021). The Third Circuit has not directly addressed the issue of whether this framework applies to failure to
accommodate claims, although it has affirmed a district court decision concluding that failure to accommodate claims
under the ADA should not be evaluated under this framework. See Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d
661 (3d Cir. 1999).
employer’s judgment as to which functions are essential is generally strong evidence of this fact,
see 29 C.F.R. § 1630.2(n)(3), but “the employer’s judgment as to which functions are essential –
is but one piece of evidence to be considered.” Turner, 440 F.3d at 613 n.6. This is one piece out
of many. See 29 C.F.R. § 1630.2(n)(3)(listing factors to consider when determining if a job
function is essential).
Because determining whether a job function is essential demands a fact-specific analysis,
that decision is often a job better suited to the jury, rather than the Court. See Turner, 440 F.3d at
613; Keith v. Cnty. of Oakland, 703 F.3d 918, 926 (6th Cir. 2013). That is the path the Court will
follow here. Defendants argue that taking the COVID-19 vaccine was an essential function of Ms.
Sullivan’s job at Exact because the vaccine’s protections were necessary for Ms. Sullivan
continued face-to-face sales as a PMR. And of course, Exact’s policy made taking the vaccine a
requirement as it defined the job for continued service at that time as a PMR. Plaintiff disagrees
and points out that she and many other PMRs safely performed their PMR roles prior to the
vaccine’s existence by following standard masking, distancing, and testing policies. Because a
jury, and not the Court, is charged with resolving disputed facts, including whether taking the
COVID-19 vaccine at the time it was required by Exact was fundamental to Ms. Sullivan’s PMR
role, summary judgment will not be granted on the grounds that Ms. Sullivan was not a “qualified
individual.” That result does not resolve the Motion, however, so on to the next steps.
b. Ms. Sullivan’s Status As An Individual With A Disability.
To succeed on her failure-to-accommodate claim, Ms. Sullivan must first demonstrate that
she was disabled and her employer knew it. A plaintiff is disabled under the ADA and PHRA if
she: (1) has “a physical or mental impairment that substantially limits one or more” of her “major
life activities;” (2) has “a record of such an impairment;” or (3) is “regarded as having such an
impairment.” Morgan v. Allison Crane & Rigging LLC, 114 F.4th 214, 221 (3d Cir. 2024)(quoting
42 U.S.C. § 12102(1)). Major life activities include “caring for one’s self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, []working” or any other activity
comparably important to human life. Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 382-84 (3d
Cir. 2004).
Ms. Sullivan argues she is disabled under both the “actual disability” definition and the
“record of” definition. Based on the current case record, the Court is convinced that a genuine
issue of material fact exists as to both Ms. Sullivan actually having an impairment substantially
limiting one or more of her major life activities at the time her accommodation request was denied,
and as to there being a record of such an impairment at that time. Thus, summary judgment will
not be granted on the basis of Plaintiff not meeting the statutory definition of “disabled.”
Ms. Sullivan first claims she was actually disabled at the time her employment ended. A
plaintiff alleging they are disabled because they actually have an impairment substantially limiting
a major life activity must demonstrate the impairment existed at the time they requested an
accommodation. Unlike a plaintiff alleging they had a record of impairment or that they were
regarded as having an impairment, “[t]he first, objective definition [of disability under the ADA]
examines the extent to which a plaintiff actually suffers from a disability.” Schwartz v. Comex,
No. 96 Civ. 3386, 1997 U.S. Dist. LEXIS 4658, at *4 (S.D.N.Y. Apr. 2, 1997)(citing School Bd.
Nassau Cnty. v. Arline, 480 U.S. 273, 284 (1987)). At the summary judgement stage, the operative
question is if there is evidence in the record that, when construed in the light most favorable to the
non-moving party, makes the existence of such an impairment a genuine issue of material fact such
that a reasonable jury could return a verdict for the nonmoving party. See Fed. R. Civ. P. 56(c);
SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 203-04 (3d Cir. 2022).
Ms. Sullivan argues that because she experienced an impairment to the major life activity
of breathing after receiving the flu shot in 2021, she believed that the 2021 COVID-19 vaccine
would cause a similar impairment. According to the Plaintiff, the flu shot in 2021 caused
“shortness of breath, rash, hives, itchiness in the back of the neck and throat, throat tightening,
feeling out of sorts, malaise, and the swelling of the tongue and lips.” (ECF No. 80 ¶ 161). Based
on his medical judgment, Dr. Schmidt concluded that the flu shot may have caused Ms. Sullivan
to go into anaphylaxis, a serious medical condition which would substantially limit her ability to
breathe.
An anaphylactic reaction as described by Dr. Schmidt could be found by a jury to
substantially limit one or more of Ms. Sullivan’s major life activities. Even though Ms. Sullivan
does not claim she is generally at risk of anaphylaxis, “[a]n impairment that is episodic or in
remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C.
§ 12102(4)(D). That is why specific allergies — such as an allergy to a vaccine — may qualify as
a disability depending on “the severity of the possible reaction.” Doe v. Pittsburgh Reg’l Transit,
684 F. Supp. 3d 417, 428 (W.D. Pa. 2023).
Defendants argue that the reaction Ms. Sullivan alleges occurred after she received the
influenza vaccine is insufficiently severe to qualify as a disability and thus any similar reaction
that would have allegedly followed the receipt of the COVID-19 vaccine would similarly not
qualify as a disability. According to them, regardless of the “anaphylaxis” label placed on Ms.
Sullivan’s symptoms by Dr. Schmidt, there was no actual limitation of Ms. Sullivan’s major life
activities. It is true that “courts have been careful to distinguish impairments which merely affect
major life activities from those that substantially limit those activities,” and that certain allergic
reactions to vaccines have been considered too mild to be considered a disability in some cases.
See Norman v. NYU Langone Health Sys., 492 F. Supp. 3d 154, 164 (S.D.N.Y. 2020). But in those
cases, there was no testimony that the plaintiff’s allergic reaction was “life-threatening.” (ECF No.
82-37). Here, such testimony exists, and it comes from a licensed medical doctor. Thus, there is at
least a genuine dispute of material fact that the reaction Ms. Sullivan alleges she experienced after
taking the influenza vaccine, and that she alleges could have occurred had she taken the COVID-
19 vaccine, was severe enough to qualify as a disability. 5
The question of whether Ms. Sullivan taking the COVID-19 vaccine would have actually
caused an allergic reaction is one to be left to the jury. Plaintiff argues that such an allergy exists
based on the medical opinion of Dr. Schmidt, who diagnosed Ms. Sullivan with “a very uncommon
medical problem” that could be “life-threatening” and required additional medical evaluation.
(ECF No. 82-37 at 3). Defendants argue that the exact medical testing Dr. Schmidt recommended
was ultimately conducted by Dr. Petrov at this Court’s direction, and Dr. Petrov concluded that
based on the results of the testing, Ms. Sullivan could safely “proceed with COVID vaccination.”
(ECF No. 82-40).
“Where there is ‘specific, plausible and detailed testimony by dueling expert witnesses,’
summary judgment is often inappropriate.” Sightsound.com, Inc. v. N2K, Inc., 391 F. Supp. 2d
321, 330 (W.D. Pa. 2003)(quoting Total Containment, Inc. v. Environ Prods., No. 99-1059, 1999
U.S. App. LEXIS 22072, at *11 (Fed. Cir. Sept. 15, 1999)). Here the record reflects the conclusions
of two medical professionals, and critically for these purposes, conclusions at variance with one
another and which arrived at different times in this case’s timeline. On one hand, Dr. Schmidt
5 In his letter Dr. Schmidt checked a box labeled “No” in response to the question: “Does the impairment limit a major
life activity or major bodily function.” (ECF No. 82-37 at 4). While this seems to contradict his diagnosis of Ms.
Sullivan’s condition as life-threatening, he clarified in his deposition testimony that he checked the “No” box because
at the time he filled out the form Ms. Sullivan was not at that specific moment in anaphylaxis, and that if she had been,
he would have checked the box labeled “Yes.” (ECF No. 82-15 at 25:20-26:6). That surely appears to create a disputed
issue of material fact as to the impact of any possible reaction on Ms. Sullivan’s major life activities.
asserts that based on the facts at hand when he evaluated Ms. Sullivan shortly after she took the
flu vaccine, she has an uncommon medical condition such that taking the COVID-19 vaccine could
have been life-threatening and which required additional evaluation prior to the receipt of any such
vaccine. This diagnosis came at the moment in time when Exact was requiring her to receive the
COVID-19 vaccine or place her continued employment at risk. On the other hand, Dr. Petrov
concluded years after her employment ended that Ms. Sullivan would not have faced any
complications by taking the COVID-19 vaccine when it was required of her. It will be up to a jury
to determine whether Ms. Sullivan was actually disabled by an allergy to a vaccine or vaccine
component at the time her employment ended, making summary judgment inappropriate.
Beyond that, upon closer examination, those two medical opinions are not necessarily in
conflict. Dr. Schmidt was exercising his medical judgment based on the limited facts before him
when he rendered it; he compared his assessment of the impact of the flu vaccine on Ms. Sullivan
to his understanding of the overlap of vaccine contents as between the flu vaccine at the time and
the COVID-19 vaccine. Dr. Schmidt did not have the ability to perform a proper skin test on Ms.
Sullivan to definitively diagnose her with an allergy to the COVID-19 vaccine, and thus his opinion
was limited by the lack of such testing results. By the time Dr. Petrov conducted a skin test and
received its results these additional facts allowed him to opine that Ms. Sullivan could in fact safely
receive the COVID-19 vaccine.
But what a rational jury could also conclude from that context of the medical
documentation is that at the time Dr. Schmidt opined that Ms. Sullivan should not receive the
COVID-19 vaccine without clearance generated by skin testing at least two things were true: (1)
Exact was requiring her to receive that vaccine as a condition of her continued employment, which
could be found to be an essential function of the job; and (2) that she had a documented medical
condition that substantially impaired her ability to perform her job within the parameters set by
her employer and as a direct result of that medical condition. While that dynamic ultimately did
change when Ms. Sullivan actually had the skin testing (and which would have been cleared up
two weeks after Exact’s final deadline had she been tested at that time), when her employment
terminated, a jury could conclude that she was “disabled” by virtue of Dr. Schmidt’s opinion.
Those are disputed issues of fact, and they are material.
Ms. Sullivan also argues that she meets the definition of disability under the “record of”
prong. “An individual has a record of a disability if the individual has a history of, or has been
misclassified as having, a mental or physical impairment that substantially limits one or more
major life activities.” 29 C.F.R. § 1630.2(k)(1). Protections for those with a record of being
disabled cover those who do not actually have a disability but who still “may remain vulnerable to
the fears and stereotypes of their employers.” Davidson v. Midelfort Clinic, 133 F.3d 499, 509 (7th
Cir. 1998). For example, a cancer patient who is in remission cannot be discriminated against
because an employer is worried the cancer may cause lingering weakness. An employee with a
record of having a disability is entitled to reasonable accommodations, even if the disability is no
longer active, but they must be “related to the past disability.” 29 C.F.R. § 1630.2(k)(3). Such
accommodations can include “leave or a schedule change to permit him or her to attend follow-up
or ‘monitoring’ appointments with a health care provider.” Id.
The inquiry here is fact intensive. Ms. Sullivan must establish there is some documented
record of her having an impairment that substantially limited a major life activity. See Eshelman
v. Agere Sys., 554 F.3d 426, 437 (3d Cir. 2009). To establish such a record, a plaintiff need only
point to some documentation that references their having a disability covered by the ADA. The
documentation can come from any source, including “education, medical, or employment
records.” 29 C.F.R. Pt. 1630 App. Crucially, the documentation must “identify[] a limitation” of
Plaintiff’s major life activities caused by the recorded disability. See Gardner v. SEPTA, 410 F.
Supp. 3d 723, 738 (E.D. Pa. 2019). The focus must be on if the Plaintiff “has submitted evidence
that the actual extent of his or her impairment was substantial.” Eshelman, 554 F.3d at 437.6
The letter Dr. Schmidt sent to Exact in support of Ms. Sullivan’s accommodation request
is sufficient for a jury to conclude that there was a documented record of her having an impairment
substantially limiting a major life activity. Dr. Schmidt writes in that letter: “Due to an anaphylactic
response to a past flu vaccine, it is my professional opinion that [Ms. Sullivan] has a significant
possibility of experiencing a similar life-threatening reaction to the” COVID-19 vaccine. (ECF
No. 82-37 at 1). A document that states an employee could suffer a life-threatening reaction to the
COVID-19 vaccine in circumstances in which the employer was requiring taking that vaccine to
continue working is one that a jury could conclude establishes a record of a disability.
When reading the evidence in the record most favorably to Ms. Sullivan, she has
sufficiently demonstrated there is genuine question of material fact both regarding her actually
being disabled at the time her accommodation request was denied, and regarding the existence of
a record of her having a disability. And certainly, the jury could conclude that her employer was
aware of all of this given that Exact employees spoke to Ms. Sullivan about her accommodation
6 The Third Circuit has also said that generally for disability discrimination cases a plaintiff must provide evidence
their employer “relied upon [the] record of impairment in making its employment decision.” Eshelman, 554 F.3d at
437. While the Third Circuit has not opined as to whether this requirement equally applies to failure-to-accommodate
claims, this Court believes that it does not. Those with a record of a disability are equally entitled to a reasonable
accommodation. See 29 C.F.R. § 1630.2(k)(3); but see Taylor, 184 F.3d at 306 n.2 (questioning the availability of
failure-to-accommodate claims for those pursuing a “record of” theory of disability). And in a failure-to-accommodate
claim, the adverse employment decision complained of involves the lack of a reasonable accommodation. See Williams
v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004). But it is hard to imagine how to prove an
employer relied on a record of a disability when deciding not to provide a reasonable accommodation. There are many
reasons for an employer not providing a reasonable accommodation, but it seems implausible that any of them would
be based in the discovery of some record of an employee’s disability. Thus, the Court concludes that at least in the
circumstances presented here, the causation requirement for “record of” theories of disability is not applicable to
failure-to-accommodate claims.
request, a request that included Dr. Schmidt’s diagnosis of her condition. (ECF No. 80 ¶¶ 231,
232). Thus, summary judgment cannot be granted on the grounds that Ms. Sullivan is not disabled
under either of the two relevant statutory definitions.
c. Ms. Sullivan’s Request For An Accommodation.
To meet the second element of a failure-to-accommodate claim, Ms. Sullivan must
demonstrate that she “requested accommodations or assistance.” Williams, 380 F.3d at 772. This
element is easily met on the current record. Ms. Sullivan provides ample evidence that on August
18, 2021, she formally requested her employer provide an accommodation by withholding any
decision about her continued employment until she had been tested by Dr. Petrov and received
those results. (ECF No. 80 ¶ 76).
d. Exact’s Good Faith Effort To Assist.
“The ADA imposes upon employers a good-faith duty ‘to engage [with their employees]
in an interactive process to identify a reasonable accommodation.’” Jacobs v. N.C. Admin. Off. of
the Cts., 780 F.3d 562, 581 (4th Cir. 2015)(quoting Wilson v. Dollar Gen. Corp., 717 F.3d 337,
346 (4th Cir. 2013)). The ADA does not “require an employer to provide an employee with the
accommodation of her choosing.” Diaz v. City of Phila., 565 F. App’x 102, 106 (3d Cir. 2014),
but instead introduces the interactive process to determine “the precise limitations resulting from
the disability and the potential reasonable accommodations that could overcome those limitations,”
Taylor, 184 F.3d at 316 (quoting 29 C.F.R. § 1630.2(o)(3)). An employer can show good faith in
the interactive process by “meeting with the employee; requesting information about the
employee’s condition and limitations; asking the employee what accommodation she wants;
showing some sign of having considered her request; and offering and discussing available
alternatives.” Ruggiero v. Mount Nittany Med. Ctr., 736 F. App’x 35, 39 (3d Cir. 2018).
Ms. Sullivan argues that Defendants never acted in good faith throughout the interactive
process that began when she requested an accommodation to Exact’s COVID-19 vaccine policy.
While she admits that Exact collected documents seeking information about her condition, she
argues that there was never any attempt to consider her request or to offer any viable alternatives.
According to Ms. Sullivan, the hotly charged phone call between Mr. Roth and Defendant Conroy,
and the comments Mr. Conroy alleged made about friends of Mr. Roth (which could be found to
include Ms. Sullivan) was evidence that Defendants did not seriously consider her accommodation
request. And she continues that Exact did not offer alternative accommodations to her, at least not
viable ones. She argues that offering severance pay is not a legitimate alternative accommodation,
and neither is the opportunity to apply to other jobs at Exact for which she was unqualified, or
which were otherwise inferior to her PMR position.
Ms. Sullivan has raised a genuine issue of material fact as to whether Defendants engaged
in the interactive process in good faith. At the very least there is a question as to if Exact actually
offered alternative accommodations. Severance is generally not considered a reasonable
accommodation, because by definition it undermines an employee’s ability to enjoy “equal
benefits and privileges of employment” by terminating that employment. See 29 C.F.R. §
1630.2(o)(iii)(defining reasonable accommodation). And while a transfer to another position can
be a reasonable accommodation, see Shelton v. Univ. of Med. & Dentistry, 223 F.3d 220, 226-28
(3d Cir. 2000), that is not what Exact offered Ms. Sullivan. What Exact offered was the chance to
apply for a transfer. There was no guarantee she would get the job. And if Ms. Sullivan is proven
correct that her application to any of the available positions would be denied because she was
unqualified, or that any of those positions were inferior to her current position, then then the
proffered accommodation would in those circumstances be rendered weightless.
e. The Reasonableness of Ms. Sullivan’s Requested Accommodation.
Ms. Sullivan argues that allowing her a temporary exception to the company’s vaccine
mandate so that she could be tested as Dr. Schmidt advised was a reasonable accommodation
request. Exact counters that it was an unreasonable request because it would create an undue
hardship by placing additional risk on the company through the increased chance of spreading
COVID-19 to healthcare personnel and patients while awaiting that test to occur and the results
analyzed. There is a genuine issue of material fact on this point.
Employers are exempt from making a reasonable accommodation if “the accommodation
would impose an undue hardship on the [employer’s] operation of the business.” 42 U.S.C.
§ 12112(b)(5)(A). An accommodation presents an undue hardship when providing it entails
“significant difficulty or expense.” 29 C.F.R. § 1630.2(p)(1). In a failure-to-accommodate claim,
the plaintiff “must show, as part of her burden of persuasion, that an effective accommodation
exists that would render her otherwise qualified.” Walton, 168 F.3d at 670. Once the plaintiff
shows an accommodation exists and that it is facially reasonable, meaning “the costs of which,
facially, do not clearly exceed its benefits,” the burden shifts to the defendant to prove that it
creates an undue hardship or is otherwise unreasonable. Id.
Exact extending its vaccine deadline by an additional two weeks — the accommodation
Ms. Sullivan advanced and which a jury could find as being facially reasonable — could be found
to have not imposed an undue hardship on Exact or its business. A jury could find that allowing
Ms. Sullivan to continue to work as a PMR in that time interval would not have strained the
“overall financial resources” of Exact. 29 C.F.R. § 1630.2(p)(2)(i)-(iii). And it could find that the
“impact of the accommodation” would not have frustrated Exact’s operations or the ability of other
employees to perform their duties, especially seeing as Ms. Sullivan had committed to abiding by
the masking, distancing, and testing policies that had been successful in preventing the spread of
COVID-19 prior to the vaccine becoming available. 29 C.F.R. § 1630.2(p)(2)(vi)-(v).
And it is on this point that the parties have by their decisions and actions as set out in the
record generated both genuine issues of material fact, and facts on which the jury could readily
find against either of them.
On the one hand is the bucket of facts that would demonstrate to a jury that given the nature
of their work involving face-to-face interactions with healthcare providers, and what became the
ready availability of the COVID-19 vaccine coupled with it repeat extensions of the time for the
receipt of vaccination, Exact was acting completely reasonably in both requiring PMRs to receive
the COVID-19 vaccine and in its response to Ms. Sullivan’s individual request for yet another
delay in applying the policy as to her, particularly given the long time interval between when Dr.
Schmidt advised that she be skin tested and when Dr. Petrov could see her. And then there is the
fact that the record could also support the conclusion that Ms. Sullivan was seemingly in no hurry
whatsoever to be skin tested, given that there is no evidence advanced that she did anything to be
tested sooner by any other allergy specialist comparable to Dr. Petrov, all coming with the overlay
of record evidence of her general opposition to being vaccinated, leading to a conclusion that her
accommodation request in the nature of more time to be tested was not reasonable. And the jury
could find that for all the back and forth that did and did not occur, one essential piece to the puzzle
that was and remains missing was an unequivocal commitment by Ms. Sullivan to return to duty
fully vaccinated if she cleared the skin test.7
7 Given that Ms. Sullivan bears the burden of persuasion in demonstrating that her proffered accommodation would
have rendered her qualified for the PMR position, see Walton, 168 F.3d at 670, the question of if extending the
vaccination deadline could lead to her receiving the vaccine is a material issue of fact. If Ms. Sullivan were allowed a
deadline extension to pursue skin testing and still would not have received the COVID-19 vaccine after being
medically cleared to do so, then the requested deadline extension would not have rendered her qualified, assuming
taking the vaccine was essential to the qualifications of her PMR position. There appears to be a genuine dispute as to
this material issue of fact. Ms. Sullivan was unequivocal that she “didn’t want to get” the vaccine. (ECF No. 75-2 at
But at the same time, there is little evidence in the record that Exact’s goals for its testing
requirement for PMRs could not be achieved (or at least would not be materially frustrated) while
having given Ms. Sullivan an additional two weeks to obtain a skin test confirming if the
COVID-19 vaccine would cause a life-threatening reaction as was the concern of Dr. Schmidt —
especially because Exact was already offering extensions of time to other employees. (ECF No.
87-3 at 5-6). And while the specific circumstances surrounding those employees may differ from
those surrounding Ms. Sullivan, the fact Exact gave extensions to those employees could be found
to undermine any broader argument that providing such an extension here would have created such
an undue hardship for the company.
Ms. Sullivan’s failure-to-accommodate claim will proceed to the jury. She has raised
genuine questions of material fact on all four elements of the claim. Thus, Defendant’s Motion for
Summary Judgment is DENIED as to Count I.
III. Defendants Will Be Granted Summary Judgment on Plaintiff’s Retaliation
Claims.
Defendants are entitled to summary judgement as to Count II, which alleges unlawful
retaliation in violation of the ADA and PHRA. The record evidence could be found to demonstrate
that Ms. Sullivan’s employment termination was caused by her failure to abide by Exact’s
company policy regarding COVID-19 vaccinations, but on the record before the Court, the
termination of her employment could not be found to have been caused by retaliation against her
for her having made an accommodation request. Because no reasonable jury could find the adverse
178:14-19). In a lengthy email sent to Defendant Conroy, Ms. Sullivan stated that “there is not a human being on the
planet who can provide clear evidence that I will benefit, or more importantly, avoid long-term unwanted side effects
from this novel approach to ‘vaccines’, I cannot allow myself to agree to receiving it.” (ECF No. 75-2 at 227). However
Ms. Sullivan also had scheduled an appointment to receive the COVID-19 vaccine prior to meeting with Dr. Schmidt.
(ECF No. 82-35 at 2). She also had admitted that she “was willing” to get the vaccine if it was necessary to keep her
job. (ECF No. 82-15 at 59:9-17). These conflicting pieces of evidence make the question of if Ms. Sullivan would
receive the vaccine even if granted her requested accommodation and was subsequently cleared to do so “a genuine
issue for trial.” Liberty Lobby, Inc., 477 U.S. at 248.
employment action Ms. Sullivan suffered was caused by her engagement in protected activity, her
claim of unlawful retaliation fails.
“[U]nlike a general ADA discrimination claim, an ADA retaliation claim does not require
that the plaintiff demonstrate a disability within the meaning of the ADA.” Sulima v. Tobyhanna
Army Depot, 602 F.3d 177, 188 (3d Cir. 2010). Instead, a retaliation claim follows the familiar
burden shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). While the burden of production shifts in this framework, the plaintiff always carries the
ultimate burden of persuasion. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000).
The framework starts with a prima facie case. A prima facie retaliation claim requires
Plaintiff to show: (1) she engaged in protected activity; (2) there was an adverse action taken by
the employer either after or contemporaneous with the employee’s protected activity; and (3) there
was a causal connection between the employee’s protected activity and the employer’s adverse
action. Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015). If Ms. Sullivan makes this
showing, the burden shifts to her employer to produce a legitimate, non-retaliatory reason for
having taken the adverse action. Id. If the employer produces such a reason, the burden shifts one
final time 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.” Marra v. Phila. Hous.
Auth., 497 F.3d 286, 300 (3d Cir. 2007).
Defendants argue Ms. Sullivan’s retaliation claim fails out of the gate because she has not
established a prima facie case. All parties agree that her requesting an accommodation as outlined
above was a type of employee activity protected by statute and that Plaintiff’s termination was an
adverse action taken by her employer. The sole battle on this issue is over the existence of a causal
connection between Ms. Sullivan’s accommodation request and her termination.
“We consider ‘a broad array of evidence’ in determining whether a sufficient causal link
exists to survive a motion for summary judgment.” LeBoon v. Lancaster Jewsish Cmty. Ctr. Ass’n,
503 F.3d 217, 232 (3d Cir. 2007). Relevant evidence includes: the temporal proximity between the
protected activity and adverse action, any intervening antagonism, inconsistencies in the
employer’s articulated reasons for taking the adverse action, or any other evidence in the record
sufficient to support the inference of retaliatory animus. Id. at 232-33. “The plaintiff, however,
cannot establish that there was a causal connection without some evidence that the individuals
responsible for the adverse action knew of the plaintiff’s protected conduct at the time they acted.”
Daniels, 776 F.3d at 196.
Temporal proximity is king when attempting to establish a causal connection between a
protected activity and adverse action. An “unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action” alone can establish causation. Lauren W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). And the next best thing is “a pattern of antagonism
coupled with timing.” Id. A multi-week gap between protected activity and adverse action is not
unusually suggestive without additional evidence. Compare Tirk v. Dubrook, Inc., 673 F. App’x
238, 241 (3d Cir. 2016) (one month gap is not unusually suggestive), with Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012) (seven-day gap is unusually suggestive);
but see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 285-86 (3d Cir. 2000) (three to four week
gap is not unusually suggestive, but establishes causation when combined with employer’s
inconsistent explanations and sudden change in behavior).
Of course, a large gap in timing between actions does not foreclose the possibility one
caused the other. The law recognizes this, which is why causation in the prima facie case can
alternatively be established by “evidence gleaned from the record as a whole.” Watson v. Rozum,
834 F.3d 417, 424 (3d Cir. 2016). A particularly reliable indicator of causation is the treatment of
similarly situated coworkers who did or did not engage in the protected activity. See Garcia v.
Vertical Screen, 592 F. Supp. 3d 409, 421 (E.D. Pa. 2022).
The timing between Ms. Sullivan’s accommodation request and her termination is not
unusually suggestive of unlawful retaliation. Ms. Sullivan officially submitted her accommodation
request on August 18, 2021, after Dr. Schmidt faxed a completed accommodation request form to
Exact stating that Ms. Sullivan should not receive the COVID-19 vaccine until she is evaluated by
an expert. Exact terminated Ms. Sullivan’s employment six weeks later: on October 4, 2021.
Without additional evidence, a gap of “six weeks, does not raise an inference of causation.” Jacobs
v. Cnty. of Bucks, No. 22-2327, 2023 U.S. App. LEXIS 17257, at *7 (3d Cir. July 10, 2023).
But Ms. Sullivan claims the record contains the requisite additional evidence of causation.
She argues there are four points that, when considered together, would allow a jury to conclude
that she has established causation. First is Defendant Kevin Conroy’s alleged animus towards
individuals who did not wish to receive the COVID-19 vaccine, as exemplified in his hotly charged
phone conversation with Mr. Roth. Second is the fact that other employees were granted what
Plaintiff says were similar accommodation requests while hers was denied. Third is the conflicting
testimony regarding Defendant Conroy’s personal involvement in the decision to deny Ms.
Sullivan’s accommodation request. And finally is the lack of any testimony explaining why
extending the vaccine deadline as Ms. Sullivan requested would be detrimental to Exact’s interests.
But even when viewing this additional evidence in the light most favorable to Ms. Sullivan, it fails
to plausibly demonstrate causation for purposes of a retaliation claim.
Defendant Conroy’s alleged animosity toward individuals who chose not to get the
COVID-19 vaccine does not imply he, or his company, took retaliatory action against employees
because they requested an accommodation. The evidence might show that Defendant Conroy
disagreed with the position taken by many Americans that the COVID-19 vaccine was possibly
unsafe and altogether unnecessary to prevent the spread of the novel coronavirus. And a reasonable
jury could find that Defendant Conroy’s strong feelings on the subject were manifested in some
sort of a personal dislike of those who, without “legitimate health reasons,” choose not to get the
vaccine, and that Mr. Conroy considered Mr. Roth one of those people. (ECF No. 82-3 at 131:19-
25) But even if Mr. Conroy personally disliked Mr. Roth or Ms. Sullivan for that or any other
reason, “personal dislike is not a forbidden retaliatory animus.” Smart v. Cnty. of Gloucester, 681
F. Supp. 3d 306, 336 (D.N.J. 2023); see Okokuro v. Pa. Dep’t of Welfare, No. 00-2044, 2001 U.S.
Dist. LEXIS 6270, at *18-19 (E.D. Pa. May 15, 2001).
And the fact that Exact granted other accommodation requests but not Ms. Sullivan’s if
anything would demonstrate that something other than the protected activity motivated her
termination. Causation requires Ms. Sullivan demonstrate that her requesting an accommodation
“was the likely reason for” her termination. Carvalho-Grevious v. Del. State Univ., 851 F.3d 249,
261 (3d Cir. 2017). And as noted, it is undisputed that the Defendants did not terminate a number
of other employees who engaged in the same protected activity Ms. Sullivan engaged in, namely
requesting a delay in being vaccinated, undercutting any claim that the protected activity of
requesting an deadline extension accommodation was a problem for Exact.
Why were some employees granted the relief Ms. Sullivan was denied? The answer in the
record: these PMRs would and did receive the vaccine in compliance with Exact’s company policy
as soon as it was medically permissible. Ms. Sullivan on the other hand, was at best staunchly on
the fence about ever taking the vaccine no matter what Dr. Petrov advised, and the record does not
advance evidence that she indicated to Exact that she would definitely take the vaccine if the results
of the December skin tests revealed no medical impediment to her doing so. No other deadline
extensions were given without requiring eventual vaccination, and in fact two other employees,
who, like Ms. Sullivan, would not commit to vaccination were similarly terminated from
employment. (ECF No. 80 ¶¶ 408, 493). Thus, evidence could not be found by a jury to suggest
unlawful retaliation, as if anything, they demonstrate that Exact’s treatment of Ms. Sullivan “was
consistent with its treatment of other employees” who also would not commit to abiding by the
company’s vaccination policy. See Garcia, 492 F. Supp. 3d at 421.
Finally, it is true that the testimony of another Exact employee could be found to undercut
Defendant Conroy’s testimony that he was not personally involved in denying Ms. Sullivan’s
accommodation request, but a fact disputed by two separate individuals does not raise the same
suspicion as “inconsistent explanations” provided by the same person. See Waddell v. Small Tube
Prods., Inc., 799 F.2d 69, 73 (3d Cir. 1986). And while a jury might conclude that there was no
inherently compelling reason a later date was not chosen as a final deadline for Ms. Sullivan’s
vaccination, that is not the point in assessing whether a rational jury could find unlawful retaliation
for her having sought the accommodation in the first place, being that the law recognizes that all
company policies must have some deadline to be effective and that all “[d]eadlines are inherently
arbitrary.” United States v. Boyle, 469 U.S. 241, 249 (1985). It is not the role of the Court or a jury
to second guess the wisdom of an employer’s otherwise lawful workplace decisions. See Keller v.
Orix Credit Alliance, 130 F.3d 1101, 1108-09 (3d Cir. 1997) (“The question is not whether the
employer made the best, or even a sound, business decision; it is whether the real reason is
[discrimination].”). And as noted above, the record is not in dispute that Exact had already
generally extended its deadline once, had given Ms. Sullivan the option of a second deadline
extension if she would commit to being vaccinated, and that Ms. Sullivan had not demonstrated
that even with the proposed second deadline extension (or any other beyond that), she would have
certainly complied with Exact’s vaccination policy if she was medically cleared to do so.
A rational jury could not conclude that Ms. Sullivan’s accommodation request was the
cause of her employment termination. Given the legal principles outlined above, and the
undisputed facts of record, while the Court does conclude that a reasonable jury could find that
Ms. Sullivan was legally entitled to a reasonable accommodation and that she was denied an
accommodation in violation of federal and state anti-discrimination laws, the record does not
support a conclusion that her making the accommodation request itself caused her employment
loss, and summary judgment will be granted as to her retaliation claims.
The record is undisputed that Exact extended its deadlines in the past, and provided the two
referenced employees a requested accommodation of an extension of time to receive the
vaccinations in light of their demonstrated medical conditions coupled with their willingness to
receive the vaccine once able (shown by the fact that they did receive the vaccine). These
employees engaged in the same protected activity Ms. Sullivan engaged in but were not terminated
from employment. And the other pieces of causation evidence Ms. Sullivan advances — the CEO’s
alleged dislike of those skeptical of the COVID-19 vaccine and the failure to explain why
Plaintiff’s requested deadline extension was unacceptable — do not provide sufficient grounds for
a reasonable jury to conclude that Ms. Sullivan’s termination was due to her accommodation
request rather than her failure to abide by the company’s policy.
Terminating an employee’s employment because they failed to comply with a company’s
otherwise lawful policy is not an example of unlawful retaliation. See Capps v. Mondelez Global,
LLC, 847 F.3d 144, 152 (3d Cir. 2017). Because Ms. Sullivan does not present evidence from
which a reasonable jury could conclude that her termination was caused by retaliation for her
engaging in a protected activity, her retaliation claim fails and Defendants’ Motion for Summary
Judgment will be GRANTED as to Count II.
IV. Defendants Are Entitled To Summary Judgment on Plaintiff’s FMLA
Interference And Retaliation Claims Because She Is Not Entitled To FMLA
Benefits.
Defendants are also entitled to Summary Judgment on Counts III and IV, alleging unlawful
interference and unlawful retaliation in violation of the FMLA. Claims under the FMLA depend
on the existence of some serious health condition, that, under that statute’s definition, requires
some form of continuous treatment. Even assuming that Ms. Sullivan had some form of episodic
vaccine allergy, the treatment she received for this condition was too infrequent to meet the
FMLA’s requirements for a “serious health condition.” Without such a serious health condition,
Ms. Sullivan cannot successfully assert any claim under the FMLA.
Ms. Sullivan alleges that Defendants violated the FMLA by interfering with her right to
receive leave as an employee with a serious health condition and by retaliating against her for
requesting such leave. “To succeed on an FMLA interference claim, an employee must prove that
he was entitled to benefits under the FMLA.” Rodriquez v. SEPTA, 119 F.4th 296, 298 (3d Cir.
2024). The same is true for a claim of retaliation brought under the statute. See Snider v. Wolfington
Body Co., No. 16-02843, 2016 U.S. Dist. LEXIS 143116, at *22 (E.D. Pa. Oct. 17,
2016)(collecting cases). Under the FMLA “an eligible employee shall be entitled to a total of 12
workweeks of leave during any 12-month period for . . . a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29 U.S.C.
§ 2612(a)(1)(D). A “serious health condition” is one involving “(A) inpatient care in a hospital,
hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.”
29 U.S.C. § 2611(2)(11).
Ms. Sullivan argues that she was entitled to employee benefits under the FMLA because
her alleged vaccine component allergy is a “chronic serious health condition” requiring continuous
treatment. Under the FMLA and the regulations promulgated under that statute, a “chronic serious
health condition is one which: (i) requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
(ii) continues over an extended period of time (including recurring episodes of a single underlying
condition); and (iii) may cause episodic rather than a continuing period of incapacity.” 29 C.F.R.
§ 825.102.
To be considered a chronic serious health condition Ms. Sullivan’s allergy must require at
least bi-annual visits to a health care provider for treatment. Ms. Sullivan must have sought
treatment, which “includes (but is not limited to) examinations to determine if a serious health
condition exists and evaluations of the condition” and may involve “a course of prescription
medication or therapy requiring special equipment to resolve or alleviate the health condition.”
29 C.F.R. § 825.113(c). For such treatment from a health care provider to be “required” it cannot
be easily substituted by home remedies, as “treatment that includes the taking of over-the counter
medications . . . and other similar activities that can be initiated without a visit to a health care
provider, is not, by itself, sufficient to constitute a regimen of continuing treatment.” Id.
Ms. Sullivan’s condition must have also continued over an extended period of time. The
FMLA does not define what constitutes an extended period of time. The Third Circuit has found
three years to be sufficient, Victorelli v. Shadyside Hosp., 128 F.3d 184, 189 (3d Cir. 1997), and
other courts have held the condition “must exist for well more than a few weeks,” See Hansler v.
Lehigh Valley Hosp. Network, 798 F.3d 149, 154 n.5 (3d Cir. 2015)(quoting Taylor v. Autozoners,
LLC, 706 F. Supp. 2d 843, 852 (W.D. Tenn. 2010)). Medical dictionaries consider a chronic
condition to be one “persisting 3 months or longer.” Bieber v. Nace, No. 10-cv-0718, 2012 U.S.
Dist. LEXIS 29386, at *9 (M.D. Pa. Mar. 6, 2012) (quoting Stedman’s Medical Dictionary 376
(28th ed. 2006)).
Finally, Ms. Sullivan’s allergy must have caused her to experience an episodic period of
incapacity. “The term incapacity means inability to work, attend school or perform other regular
daily activities due to the serious health condition, treatment therefore, or recovery therefrom.”
29 C.F.R. § 825.113. Regular daily activities generally involve “performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, interacting with others, and working.”
Wegelin v. Reading Hosp. & Med. Ctr., 909 F. Supp. 2d 421, 427 (E.D. Pa. 2012). A person
experiences episodic incapacity when their condition occasionally interrupts their ability to
perform one or more of these tasks.
Ms. Sullivan cannot bring any claim under the FMLA because she is not an eligible
employee under that statute. She argues that she had a longstanding allergy to vaccines, beginning
in at least 2005. She contends that she had to seek medical treatment at least twice in 2021 because
of the flu vaccine she received that year. But as is undisputed by both parties, (ECF No. 80 ¶ 70),
these visits in 2021 are the only time Ms. Sullivan sought medical treatment for her alleged allergy.
(ECF No. 75-2 at 130:13-131:4). This fails to meet the FMLA’s requirement that her condition be
severe enough to warrant medical treatment at least twice a year — in every year — she had the
condition. See 29 C.F.R. § 825.102; Watkins v. Blind & Vision Rehab. Servs., No. 16cv01850,
2018 U.S. Dist. LEXIS 160076, at *13-14 (W.D. Pa. Sept. 19, 2018). Summary judgment will be
entered in favor of all Defendants as to Ms. Sullivan’s FMLA claims.
V. There Is Genuine Issue of Material Fact As To Defendant Kevin Conroy’s
Involvement In Denying Plaintiff’s Accommodation Request Thereby Allowing
Her Aiding And Abetting Claim To Go To Trial.
“Unlike the ADA, the PHRA provides for individual liability in cases where a person aids
and abets acts of discrimination.” Bernhard v. Brown & Brown of Lehigh Valley, Inc., 720 F. Supp.
3d 694, 705 (E.D. Pa. 2010). This applies to all actions the PHRA deems unlawful, including
claims for disability discrimination. See 43 Pa. Stat. § 955(e). The Third Circuit distinguishes
between coworkers, who cannot be held liable under an aiding and abetting theory, and
supervisors, who can. Dici v. Pennsylvania, 91 F.3d 542, 552-53 (3d Cir. 1996).
Courts in this Circuit define a “supervisor” for Section 955(e) purposes by reference to the
Supreme Court’s opinion in Vance v. Ball State Univ., 570 U.S. 421 (2013). See LaCoe v. Pa. State
Univ., No. 14-cv-1818, 2016 U.S. Dist. LEXIS 38346, at *33 n.85 (M.D. Pa. Mar. 24,
2016)(collecting cases). There, the Supreme Court defined a supervisor as one who “is empowered
by the employer to take tangible employment actions against the victim.” Id. at 424. A tangible
employment action is any that “effect[s] a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Id. at 429.
Section 955(e) does not automatically apply to a defendant because they are a supervisor.
To be liable for aiding and abetting an act of discrimination, an individual defendant must have
“actively or affirmatively participated in or compelled the discriminatory conduct.” Wilson v.
Child.’s Museum of Pittsburgh, No. 05cv1748, 2006 U.S. Dist. LEXIS 28978, at *7 (W.D. Pa.
May 12, 2006)(citing Dici, 91 F.3d at 542). This standard requires more than mere knowledge and
acquiescence of the conduct.
In this case, there is little doubt that Defendant Conroy, as the CEO of Exact, is a
supervisor. “[E]ven those completely unfamiliar with business hierarchy should be aware that the
CEO is top of the corporate food chain.” Hornby v. Endless Mt. Behav. Health Ctr., Inc., No. 25-
CV-00465, 2025 U.S. Dist. LEXIS 186322, at *10 (M.D. Pa. Sept. 23, 2025). While the powers
of a CEO are rarely unlimited, their status as the leader of a business organization almost always
provides them the ability to affect a significant change in employment status, at least informally.
And Ms. Sullivan has raised a factual question as to whether Defendant Conroy actively
participated in denying her accommodation request. There is conflicting testimony regarding
Defendant Conroy’s involvement in deciding particular accommodation requests. If indeed, Mr.
Conroy was the “primary decisionmaker,” (ECF No. 80-4 at 41:4-13), who was in charge of
denying Ms. Sullivan’s request and in granting and denying those from others, then there is
evidence from which a jury could conclude that he aided and abetted any meritorious disability
discrimination claim based on the unlawfulness of that denial. But if Defendant Conroy was really
only responsible for general policy determinations, then the jury could conclude that he did not
actively or affirmatively participate in the denial of Ms. Sullivan’s specific accommodation
request, absolving him of personal liability. The conflicting testimony now in the record raises a
genuine issue of material fact as to Plaintiff’s aiding and abetting claim as to the failure to
accommodate theory and as to Mr. Conroy, and thus summary judgment will be DENIED as to
Count V.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No. 72) will
be GRANTED IN PART and DENIED IN PART. Summary judgment in favor of the Defendants
will be GRANTED as to Counts II, III, and IV. Summary judgment will be DENIED as to Counts
I and V.
An appropriate Order will issue.
/s/ Mark R. Hornak
Mark R. Hornak
United States District Judge
Dated: July 29, 2026