Petition for Writ of Certiorari — Conroy v. Township of Lower Merion
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"FAILED
(>) 031302MAR 12 2004
OBFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
Cunce
Qe Wd i te
PATRICIA CONROY
Petitioner,
Vv.
LOWER MERION TOWNSHIP
AND
LOWER MERION TOWNSHIP WORKERS ASSOCIATION
Respondents.
On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Third Circuit
PETITION FOR WRIT OF CERTIORARI
C. SCOTT SHIELDS
SHIELDS & HOPPE, LLP
223 N. Monroe Street
Media, PA 19063
(610) 892-7777
Attorney for Patricia Conroy
i
QUESTIONS PRESENTED
(1) Does the Family and Medical Leave Act, 26
U.S.C.A. §2601, et seq, (FMLA) require the reinstatement of
an employee on medical leave who requires the same
accommodation she had prior to taking FMLA leave?
(2) Does the FMLA permit an employer to delay an
employee’s return to work following FMLA leave because
of the employer's belief that the return to work certification
is confusing and then require an employee to undergo a
fitness for duty examination prior to being restored to her
position based upon the employers past practice of requiring
all employees on any leave to submit to an examination?
(3) Does the FMLA allow an employer to require a
return to work certification or a fitness for duty examination
when the employer’s statutory FMLA notice fails to set forth
those requirements for reinstatement?
(4) Does the ADA require employers to accommodate
“regarded as” disabled employees?
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‘PARTIES
The parties to this proceeding are set forth in the caption.
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TABLE OF CONTENTS
Page
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Od ap deck ee bade eases —
Statutes and Regulations Involved................... 1
pentement of the Case................: SEE Te 4
Reason for Granting NS: 6 bein 4 eA Ad Kav eas os 1]
There is a conflict among the Circuits in
regards to the rights of employees, under
the FMLA, to be reinstated to positions ,
with the same accommodations they were
receiving when they took FMLA leave.
Moreover, the job protections of the FMLA
are so fundamentally important to all
workers in the United States that this
Court must extend the protections of the
FMLA and the substantive right to
reinstatement to disabled employees who
exercise their rights under the FMLA. ...... 1]
iV
There is a Conflict among the Circuits
concerning the rights of employers to
require employees to undergo fitness for
duty examinations prior to being reinstated
to their position following FMLA leave.
Further, the job protections of the FMLA,
and an employee’s right to reinstatement is
of such great importance in the United
States, that this Court must set a national
standard prohibiting employers from
conditioning an employee’s return to work
on obtaining an IME when the employer is
really seeking a clarification of a return to
WOE IS ga ok one ecg see eek ns 13
The job protections of the FMLA are so
fundamentally important to all workers
that this Court must set a_ national
standard and require all employers to
adhere to the regulations requiring notice
of the requirement to submit a return to
work certification, prior to taking any
action refusing to reinstate an employee to
his position following FMLA leave. ......... 19
Lastly, the Third Circuit, in ignoring the
substantial evidence of Conroy’s ADA
claim and her “regarded as” ADA claim,
and by affirming the District Court in
granting summary judgment to the
Township. The Third Circuit has ignored
its own decisions and this Court has yet to
rule on what accommodations are required
to “regarded as” employees in the context
Oe oe eee eee 22
NR ic Scan oe ee a 27
Appendix A: Unpublished Opinion of the Third
Circuit (August 8,2003) ............. la-7a
Appendix B: Memorandum and Order of the
District Court (November 30, ro. | ares 8a-19a
Appendix C: Memorandum and Order of the
District Court (August 7, 2001) ............ 20a-25a
Appendix D: Order of the Third Circuit (December 15,
SRO 554 4G 3 ha ee ee ee 26a-27a
v1
TABLE OF AUTHORITIES
Page(s)
CASES:
Albert v. Runyon, 6 F. Supp. 2d 57, 62
Ge ISG: Ss Ke ecanee tensa as eee aes 17, 18
Buskirk v. Apollo Metals, 307 F.3d 160,
CRE aes 6 bee be eee eee 23
Deane v. Pocono Med. Ctr., 142 F.3d 138, 144
fl ee re rr re 23
Duty v. Norton-Alcoa Proppants, 293 F.3d 481
(Oe CO. Dees vcnvnvswecs eee ees 13
Mathews v. Fairview Health Servs.,
2003 U.S. Dist. LEXIS 5901 (D.Minn 2003) ..... 18
Ragsdale v. Wolverine World Wide,
535 U.S. $1, 122 S. Ct..1155, 152 L. Ed. 2d 167
Rinehimer v. Cemcolift, 292 F.3d 375 (3d Cir. 2002).. = 12
Routes v. Henderson, 58 F. Supp. 2d 959 ;
Cee 2. Peer re Tee reo res Pere 17,18
Sarko v. Penn-Del Directory Co., 968 F. Supp 1026;
affirmed 189 F.3d 464 (3d. Cir. 1999) .......... B
School Board of Nassau County y. Arline,
Vil
480 U.S. 273. 288-89. 94 L. Ed. 2d 307.
WOT D. UL. CESS CIGRT). on ec cccncccscvcsss pa
Stekloff v. St. John's Mercy Health Sys.,
218 F.3d 858, 861 (8th Cir. 2000).............. 13
Taylor v. Pathmark Stores, Inc.. 177 F.3d 180, 188
CON eeMN Fy ceo cis cent were hee 23
Underhill v. Willamina Lumber Co.,
1999 U.S. Dist. LEXIS 9722 (D.Or. 1999) ...... 18
Wilson v. Lemington Home For the Aged,
159 F.Supp.2d 186 (W.D.Pa. 2001) ............. 21
STATUTES AND REGULATIONS:
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21
29 C.F.R. §825.305..... aera ete ee ee 3
BC I as wa nnn ksssoeeetarsess 4,7, 22,
6, 20
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Petitioner, Patricia Conroy, respectfully prays that this
Honorable Court grant a Writ of Certiorari to review the
judgment and opinion of the United States Court of Appeals
for the Third Circuit entered on August 8, 2003.
OPINIONS BELOW
The August 8, 2003 Opinion is set out at pp. la-7a of the
Appendix “A” to this Petition. This opinion is unpublished.
The District Court’s Memorandum and Order of November
30, 2001 is set out at pp. 8a-19a of the Appendix “B” to this
Petition. The District Court’s Memorandum and Opinion of
August 7, 2001, is set out at pp. 20a-25a of the Appendix
“C” to this Petition.
JURISDICTION
The Order of December 15, 2003 denying Conroy’s
Petition for Rehearing En Banc is set out at pp. 26a-27a of
the Appendix “D” to this Petition. The jurisdiction of this
Court is invoked pursuant to 28 U.S.C. § 1254(1).
STATUTES AND REGULATIONS INVOLVED
29 U.S.C.A. § 2614, in part, reads as follows:
(a) Restoration to position.
(b) (1) In general. Except as provided in subsection (b),
any eligible employee who takes leave under section
102 [29 USCS § 2612] for the intended purpose of
the leave shall be entitled, on return from such
leave—
2
(A) to be restored by the employer to the position of
employment held by the employee when the leave
commenced; or
(B) to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms
and conditions of employment.
(4) Certification. As a condition of restoration under
paragraph (1) for an employee who has taken leave
under section 102(a)(1)((D) [29 USCS §
2612(a)(1)(D)], the employer may have a uniformly
applied practice or policy that requires each such
employee to receive certification from the health care
provider of the employee that the employee is able to
resume work, except that nothing in this paragraph
shall supersede a valid State or local law or a
collective bargaining agreement that governs the
return to work of such employees.
29 U.S.C.A. 2615 reads, in part, as follows:
(a) Interference with rights.
(1) Exercise of rights. It shall be unlawful for any
employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right
provided under this title [29 USCS §§ 2611 et seq.].
29 CFR § 825.301 reads, in part, as follows
(b)(1) The employer shall also provide the
employee with written notice detailing the specific
expectations and obligations of the employee and
explaining any consequences of a failure to meet
these obligations. The written notice must be
provided to the employee in a language in which the
employee is literate (see Sec. 825.300(c)). Such
specific notice must include, as appropriate:
3
(ii) any requirements for the employee to furnish
medical certification of a serious health condition and
the consequences of failing to do so (see Sec.
825.305);
(f) If an employer fails to provide notice in
accordance with the provisions of this section, the
employer may not take action against an employee
for failure to comply with any provision required to
be set forth in the notice.
29 CFR § 825.310 reads, in part, as follows:
(b)If State or local law or the terms of a collective
bargaining agreement govern an employee's return to
work, those provisions shall be applied. Similarly,
requirements under the Americans with Disabilities
Act (ADA) that any return-to-work physical “be job-
related and consistent with business necessity apply.
For example, an attorney could not be required to
submit to a medical examination or inquiry just
because her leg had been amputated. The essential
functions of an attorney's job do not require use of
both legs; therefore such an inquiry would not be job
related. An employer may require a warehouse
laborer, whose back impairment affects the ability to
lift, to be examined by an orthopedist, but may not
require this employee to submit to an HIV test where
the test is not related to either the essential functions
of his/her job or to his/her impairment.
(c) An employer may seek fitness-for-duty
certification only with regard to the particular health
condition that caused the employee's need for FMLA
leave. The certification itself need only be a simple
statement of an employee's ability to return to work.
A health care provider employed by the employer
4
may contact the employee's health care provider with
the employee's permission, for purposes of
clarification of the employee's fitness to return to
work. No additional information may be acquired,
and clarification may be requested only for the
serious health condition for which FMLA leave was
taken. The employer may not delay the employee's
return to work while contact with the health care
provider is being made.
42 U.S.C.A. § 12102, provides in part:
(2) Disability. The term "disability" means, with
respect to an individual—
(A) a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
STATEMENT OF THE CASE
This case was filed as an action for money damages and
injunctive relief against the Township of Lower Merion and
the Lower Merion Township Workers Union for violations
of the Family and Medical Leave Act (FMLA) 29 U.S.C.
§2601, et seq., the Americans With Disabilities Act (ADA),
42 U.S.C. §12111, et. seq., and breach of the duty of fair
representation. The case was originaily brought before the
United States District Court for the Eastern District of
Pennsylvania.
In this case, Patricia Conroy was employed as a clerk in
the Finance Department of the Township of Lower Merion
for almost twenty-three (23) years, all of which have been in
the Township Municipal building located at 75 E. Lancaster
5
Avenue, Ardmore, PA, 19003. In 1985, Conroy injured her
back in a non-work related incident. As a result of the
injuries she sustained, Conroy has developed neuropathy and
sensitivity to moving air currents.
In November of 1997, 13 years after the Onset of her
condition, the Township requested that Conroy submit to a
medical evaluation, and as a result of the medical evaluation,
the Township’s physician found that Conroy did have a
permanent back condition that was affected by air currents.
and that Conroy should avoid cold air and drafts. The
Township had, over the course of fifteen (15) years,
accommodated this disability. However, Conroy requested to
be moved, but the Township declined this request.
On March 8, 2000, Conroy went out of work due to the
exacerbation of her neuropathy and back pain. The Township
designated and granted this leave under the FMLA. On May
15, 2000, Conroy was cleared by her physician to return to
work and provided the Township with the required
physician’s report from her doctor. ! Nevertheless, the
Township, in direct violation of the collective bargaining
agreement (“CBA”) and the FMLA, refused to permit her to
return to work until Conroy submitted to an Independent
Medical Evaluation (“IME”) since the Township made its
own determination that the certification was unclear and
confusing.”
' The Township never indicated in its required notice of her obligations
under the FMLA, 29 CFR 825.301, that Conroy would have to submit a
Tetum to work certification or undergo a fitness for duty examination.
This issue was the Subject of Plaintiff's Motion for Summary Judgment,
which the court denied by Order on April 28, 2002.
" The Township has always admitted that it never availed itself of the
opportunity to seek clarification of the return to work certification.
6
Lower Merion Township continued to refuse Conroy’s
return to work and has forced Conroy to use her accrued sick
and vacation time. When her sick and vacation time ran out
on June 20, 2000, the Township stopped paying Conroy her
regular salary. Conroy was subsequently terminated from her
position of 23 years on September 9, 2000.
The Court initially granted the Township’s Motion for
Summary Judgment on the FMLA claims on August 7, 2001,
and reversed itself on August 24, 2001.° As was apparent in
this matter, the District Court felt that the Township had a
past practice of requiring employees on any medical leave to
undergo an independent medical examination as a condition
precedent to returning to work. The Township also claimed
that this past practice was an implied condition of the
collective bargaining agreement since the collective
bargaining agreement (CBA) never expressly allowed for a
medical examination. At best, CBA required an employee to
submit a certification to return to work, which Conroy
complied with.
The District Court stated that it found that the Township
properly had applied its “past practice” of requiring
employee’s returning from FMLA leave to submit to IME’s
as an implied condition of the CBA when it deemed the
employee’s medical certification unclear or confusing, and
held that this was permissible under the FMLA. (Pet. App
23a). However, the District Court reversed this holding on
August 24, 2001 when it held that there was insufficient
evidence to prove that there was a past practice of requiring
IME’s following FMLA leave. The CBA was silent on this
issue, yet the trial court held “an integration clause is not
> The Trial Court initially held that the Township had a valid “past
practice” of requiring all employees to undergo Independent Medical
Examinations following all types of medical leave. (Pet. App. 25a).
ee ee a ee
7
necessarily dispositive where interpreting union contracts,
the Court believes it is appropriate to consider Defendant's
past practices in this case”. (Pet. App. 23a).
The trial court went on to state that:
Therefore, the question remains whether a practice
that requires Plaintiff to submit to an IME where her
medical certification js unclear, diminishes the-
protection of the FMLA.
The Court finds that this practice does not interfere
with the rights guaranteed by the FMLA. The FMLA
simply entitles an employee to resume her
employment. See 29 U.S.C. § 2614. It does not,
however, ensure a particular administrative procedure
for returning to work. Therefore, as Defendant is
merely implementing a policy for handling situations
where a certification is unclear, these practices do not
restrict or even affect Plaintiffs rights under the
FMLA. Even though requiring an IME creates an
additional step for Plaintiff, Defendant covers the
cost of the IME and this practice does not alter the
Standard for Plaintiff's eligibility or make it more
difficult for Plaintiff to be deemed qualified to return.
For these reasons, the Court finds that Defendant's
use of past practices in this situation does not
constitute a violation of the FMLA 4
The Third Circuit discussed this issue as well and
affirmed the fact that after two months of leave, Conroy's
* The trial court gave no weight or consideration to the regulations
concerning clarification of return to work certifications. 29 C.F.R.
825.310 allows an employer to seek clarification of an employees
certification, but the employer may not delay an employee’s return to
work pending the clarification.
8
doctor stated that Conroy could return to work but gave
another vague statement that she should not be exposed to air
currents. (Pet.App. 3a). The Third Circuit even
acknowledged that Conroy had a prior IME in 1997 (Pet.
App. 3a) and that:
“{O]nce again, the Township requested that Conroy
have an IME to determine precisely how it could
accommodate her, but this time Conroy refused and
instead requested that she be moved to another
workplace.” Considering that Conroy had missed two
months of work, the Township did not want to
employ her without knowing exactly what working
conditions would accommodate her condition. After
’ her vacation and sick leave ran out, Conroy was
terminated (under the terms of the Collective
Bargaining Agreement ("CBA") with the union, any
employee who has missed work for 180 days will be
terminated).(Pet.App. 3a).
The Third Circuit stated that the return to work
certification was “confusing” since it stated that Conroy
could return to work “unrestricted” (Pet. App. 5a), and
omitted the other language of this certification that indicated,
as stated by the trial court, that she could return to work with
the accommodation she had been receiving prior to the
FMLA leave of “avoiding cold air and drafts”. (Pet. App.
21a). The Third Circuit additionally stated that this was after
the Township had made a good faith effort to accommodate
her condition. (Pet. App. 5a).
* Conroy did not ever request to have her work place moved while on
leave, this request was made months before she ever went out on FMLA
leave.
9
The Third Circuit also held that the District Court did not
err by denying Conroy's motion to exclude evidence of the
Township's prior practice with the union concerning IMEs
following FMLA leave -- this evidence is clearly relevant
(emphasis added) to the determination of whether the
Township could require Conroy to undergo an IME, as past
practice can be considered an implied term of the CBA and
CBAs can supersede the FMLA. (Pet. App. 6a).
At trial, Conroy additionally requested that the FMLA
retaliation claim go forward, but the Third Circuit held that
the District Court did not err in Stating that the issue of
improper and/or lack of proper FMLA notice was raised too
late and was prejudicial to the rights of the Defendant. (Pet.
App. 6a). However, the District Court held that the notice
was sufficient as a matter of law, not that it was raised too
late. The lack of proper notice is an evidehtiary issue, and
not a new claim, and there was no dispute among the parties
that the notice failed to make any mention of the requirement
to submit a return to work certification or to submit to an
IME.
At trial, Conroy set forth a prima facie case of a
substantive violation of her rights under the FMLA, and for
retaliation. The Township claimed that it did not have to
reinstate her to prior position because she required an
accommodation. Conroy stated that her doctor certification
clearly indicated that she could return to work with the same
accommodation she was receiving immediately prior to
commencing her FMLA leave. The Trial Court granted
Defendant Township’s oral Rule 50 Motion, and dismissed
the FMLA claims under the guise that Conroy was not
entitled to reinstatement to a position where she required an
accommodation, in spite of the fact that she was seeking
reinstatement with the same accommodation she had prior to
taking her FMLA leave.
10
Additionally, Conroy appealed the Trial Court’s grant of
summary judgment on her ADA claims. The Third Circuit
acknowledged this aspect of her appeal, but made no
mention or gave any consideration to the evidence she
submitted in her brief in opposition to the grant of summary
judgment. It was undisputed in the briefs that there was
substantial evidence of her ADA qualifying disability, and
her “regarded as” claims.° The Third Circuit made no
mention of the “regarded as” claims, and affirmed the
District Court by stating that it was the failure to undergo an
IME under the FMLA that caused her to be fired, not her
condition (ADA disability). The Third Circuit stated, “it was
Conroy's failure to allow the Township to figure out how
reasonably to accommodate her condition that led to her
° The Township regarded her as disabled for at least the last 15 years;
the Township designee indicated that Employee is disabled for purposes
- of the ADA. The Township even relieved Employee from switchboard
duty. In 1997, the Township requested, and Employee agreed, to undergo
an IME to determine, what, if any accommodations she will need. There
were handwritten memos authored by a representative of the Township
indicating that there is “measurable velocity”; “couldn’t deny air coming
in - based on smoke test and velometer; it disappt”; and “air blowing/rain
‘worst of cond.’”; the Township forwarded a memorandum to Employee,
dated 5/8/98, wherein the Township stated that as a further indication of
their good faith staff in the Finance Department would endeavor to keep
the windows closed, and that “[t]he Township believes that it has been
responsive in trying to understand your medical condition and needs, and
has, therefore, made every reasonable accommodation so that you may
perform your normal activities in the workplace.” In 1999, Conroy again
requested that her work station be moved so that she could avoid drafts. .
The Township refused to move her work even thought he evidence
produced by the Township identified several suitable areas where Conroy
could work and perform the essential functions of her job.
1]
~
firing, not the Township's unwillingness to accommodate
her.””’
REASONS FOR GRANTING THE WRIT
There is a dispute among the Circuits in regards to
the rights of employees, under the FMLA, to be
reinstated to positions with the same accommodations
they were receiving when they took FMLA leave.
Moreover, the job protections of the FMLA are so
fundamentally important to all workers in the United
States that this Court must extend the protections of the
FMLA and the substantive right to reinstatement to
disabled employees who exercise their rights under the
FMLA.
At issue in this case is a matter that is fundamental to the
rights of all individuals that take leave under the Family and
Medical Leave Act. 29 U.S.C.A 2601, et seq. In this case,
Conroy had been receiving, as acknowledged by the
Township, an accommodation for her back condition
(neuropathy) for the previous 15 years. In 1997, the
Township asked Plaintiff to participate in an independent
medical evaluation, and it was determined that Conroy’s
back condition was aggravated by cold air and drafts.
As a result of this IME, Conroy was given the
accommodation of working in an area that was free from
cold air and drafts. It has always been undisputed that
Conroy was able to perform the essential functions of her
job.
” It was undisputed in the record at trial and in the Third Circuit that
Conroy was seeking to be reinstated with the
was receiving when she took FMLA leave.
same accommodation she
12
At trial, Conroy established a prima facie case of a
violation of her substantive rights under the FMLA and for
retaliation under the FMLA. At the close of Plaintiff's case
in chief, the Township moved for dismissal under Rule 50 of
the Federal Rules of Civil Procedure. Although it was
undisputed at trial that Conroy was able to perform the
essential functions of her position as a clerk in the finance
office, she did require the same accommodation upon her
return to work that she had been receiving prior to the
commencement of her FMLA leave.
Based upon this need by Conroy to receive the same
accommodation upon her return to work that she had been
receiving immediately prior to her leave, the Township cited
the case of Rinehimer v. Cemcolift, 292 F.3d 375 (3d Cir.
2002), for the stated proposition that the FMLA does not
require an employer to reinstate an employee who requires
an accommodation to perform the essential functions of their
job. However, the Plaintiff in Rinehimer was reinstated to his
position, but was eventually terminated after seeking to be
returned to his former position.
In this case, Conroy was cleared by her physician to be
reinstated to her previous position and that she still needed
the same accommodation; i.e. avoidance of cold air and
drafts. Despite this certification tendered by Conroy’s
treating physician, the Township refused to reinstate her until
she underwent an IME to clear up the Township’s confusion
concerning the certification.®
The issue of the right of reinstatement of an employee
who takes FMLA leave while they are being accommodated,
* The Township admitted that it never sought clarification of the
certification pursuant to 29 C.F.R. §825.310, and that it refused her
return to work pending her completion of an IME.
my
13
is an issue of first impression in the Third Circuit. The issue
was discussed in Duty v. Norton-Alcoa Proppants, 293 F.3d
481 (8th Cir. 2002), the Eighth Circuit discussed the
interplay between the FMLA and the ADA for an employee
on FMLA leave and stated:
To determine whether an employee is capable of
performing the essential functions of his job for
purposes of FMLA entitlement, we do not utilize the
same criteria outlined by the ADA and courts
interpreting it. See Stekloff v. St. John's Mercy Health
Sys., 218 F.3d 858. 86] (8th Cir. 2000). Rather,
because "the declared purposes of the FMLA and its
legislative history" are concerned with maintaining
job security, an FMLA inquiry examining employee's
ability to perform the essential functions of his job
focuses "on [his] ability to perform those functions in
[his] current environment. 218 F.3d at 861-62. Duty
at 495.
Under the rationale set forth by the Third Circuit in this
case, if you have a disability that requires an
accommodation, and you take FMLA leave, you no longer
have a right to be reinstated to your position following the
termination of your FMLA leave. This result excludes all
disabled individuals who receive accommodations from ever
being afforded the substantive job protections of the FMLA.
There is a dispute among the Circuits concerning the
rights of employers to require employees to undergo
fitness for duty examinations prior to being reinstated to
their position following FMLA leave. Further, the job
protections of the FMLA, and an employee’s right to
reinstatement is of such great importance in the United
States, that this Court must set a national standard
prohibiting employers from conditioning an employee’s
ess... ee a
14
return to work on obtaining an IME when the employer
is really seeking a clarification of a return to work
certification.
In this case, Conroy tendered a certificate to return to
work, which arguably, she was not even required to tender
since the Township failed to notify her of any requirement to
submit a return to work certification. Notwithstanding this
contention, the Township did require Conroy to submit to an
Independent Medical Examination (IME) since the employer
found her certification to be “unclear” and “confusing”. By
letter of May 11, 2000, addressed to Conroy’s counsel, the
Township stated, “Please inform Ms. Conroy that she may
not return to work until she receives an independent medical
examination from another physician who clears her to do
so’.” Conroy objected to an IME since she had previously-
undergone an IME for the Township, and since her
certification was all that was needed under the FMLA to
entitle her to reinstatement.
The District Court held that the requirement of an IME
was not a violation of the FMLA when it stated:
Therefore, the question remains whether a practice
that requires Plaintiff to submit to an IME where her
medical certification is unclear, diminishes the
protection of the FMLA.
The Court finds that this practice does not interfere
with the rights guaranteed by the FMLA. The FMLA
simply entitles an employee to resume her
employment. See 29 U.S.C. § 2614. It does not,
” Additionally, the Township admitted that the return to work
certification was not reviewed by any physician, and that it is not the
Township’s policy to have medical certifications reviewed.
eS fat eae ge eT PPT Pee wee eee ee
15
however, ensure a particular administrative procedure
for returning to work. Therefore, as Defendant is
merely implementing a policy for handling situations
where a certification is unclear, these practices do not
restrict or even affect Plaintiffs rights under the
FMLA. Even though requiring an IME creates an
additional step for Plaintiff, Defendant covers the
cost of the IME and this practice does not alter the
standard for Plaintiff's eligibility or make it more
difficult for Plaintiff to be deemed qualified to return.
For these reasons, the Court finds that Defendant's
use of past practices in this situation does not
constitute a violation of the FMLA. (Pet. App. 24a).
Further, the Third Circuit held that the IME was a proper
exercise of the Township’s rights under the FMLA leave by
Stating “[a]fter two months of leave, Conroy's doctor stated
that Conroy could return to work but gave another vague
Statement that she should not be exposed to air currents.”
As stated by this Court in Ragsdale v. Wolverine World
Wide, 535 U.S. 81, 122 S. Ct 1155, 152 L. Ed. 2d
167 (2002):
The FMLA's central provision guarantees eligible
employees 12 weeks of leave in a l-year period
following certain events: a disabling health problem:
a family member's serious illness; or the arrival of a
new son or daughter. 29 U.S.C. § 2612(a)(1). During
the mandatory 12 weeks, the employer must maintain
the employee's group health coverage. § 2614(c)(1).
Leave must be granted, when "medically necessary,"
on an intermittent or part-time basis. § 2612(b)(1).
Upon the employee's timely return, the employer
must reinstate the employee to his or her former
position or an equivalent. § 2614(a)(1).
$$ ———— re —$—$—<$<$—$<$$$—$—$———<—$<$—< SESE —C
16
The regulations do not permit a return to work physical
unless the physical is “job related” or consistent with
business necessity. 29 C.F.R. §825.310(b). Further, the ADA
allows a physical for a warehouse worker who has a back
problem, but not the lawyer who has an amputated leg.'° In
Conroy’s case, she was a clerical employee who had already
had an IME and who was already being accommodated, so it
can hardly be said that there was a right to condition her
reinstatement under the ADA requirement for having a
physical. Neither the District Court nor the Third Circuit
adopted this stance. Both courts held that the certification
was confusing or vague, and that alone gave rise to the need
for a fitness for duty examination.
The regulations also require that the certification itself
“need only be a simple statement of n employee’s ability to
return to work”. 29 C.F.R. §825.310(c). Further, this same ,
regulation also states that an employer may seek clarification
of this certification from the employee’s health care
provider”, and that “an employer may not delay the
employee’s return to work while contact with the health care
provider is being made”. 29 C.F.R. §825.310. The Township
never contacted Conroy’s physician or discussed the
certifications with any of its own physicians. In fact, the
Township’s policy is to never have a certification reviewed
by a physician. Clearly, Conroy’s substantive right to
reinstatement was violated since the Township required her
to undergo an IME and that she was fired from her position
of 23 years for exercising her substantive right to be
reinstated without undergoing an IME.
There are no Circuit Court opinions dealing with this
issue, however, there are district court opinions from within
!° See 29 C.F.R. §825.310.
|
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;
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17
various circuits that conflict with the decisions by the
Conroy trial court and the Third Circuit in regards to the
requirement for an employee to undergo an IME as a
condition precedent to being reinstated.
In the First Circuit, the District Court for the District of
Massachusetts, in Albert v. Runyon, 6 F. Supp. 2d 57,
62 (D.Mass 1998), the trial court held that:
An employer with questions about the scope or
adequacy of a medical certification may take
advantage of the FMLA Provision allowing it to
contact (which the Defendant Township did not do)
the employee’s clinician for Clarification, but may not
force an employee to submit to an examination
before allowing her to return to work.” Albert at 63,
and, |
An employer may not order an employee returning
from FMLA leave to submit to a fitness-for-duty-
examination because of that leave, or because of an
underlying condition that the employee’s health care
provider has certified will not interfere with the
employee’s ability to work, or because the employer
views the certification as inadequate for its own
purposes. Albert at 69.
In the Seventh Circuit, the District Court for the Southern
District of Indiana, Routes y. Henderson, 58 F. Supp. 2d
959 (S.D. In 1999) stated that the right of restoration is a
substantive statutory right that is guaranteed to eligible
employees by the FMLA. As such, it cannot easily be
diminished or abrogated by a collective bargaining
agreement. Routes at 995. When an employee submits a
medical certification adequate for purposes of the FMLA
(such as a Form 380), and the employer has no independent
18
reason to doubt the employee's fitness, "the employer cannot
rely on the employee's FMLA leave (or [his or her] prior
medical condition) to justify such an examination.” Routes at
997.
In the Eighth Circuit, the District Court for the District of
Minnesota, decided, in Mathews v. Fairview Health Servs.,
2003 U.S. Dist. LEXIS 5901 (D.Minn 2003), that the
procedures and practices delineated in FMLA represent a
prohibition on an employer making "its own determination
of whether an employee is fit to return from FMLA leave."
Citing, Albert v. Runyon, 6 F. Supp. 2d 57, 62 (D.Mass
1998).
In the Ninth Circuit, the District Court for the District of
Oregon, in Underhill v. Willamina Lumber Co., 1999 U.S.
Dist. LEXIS 9722 (D.Or. 1999), held the “FMLA allows for
additional clarification of an employee's fitness-to-return
certification, an employer may not force an employee to
submit to a further examination before allowing her to return
to work. Citing, Albert at 63.
This case is not a case where there was a business
necessity for Conroy’s examination. Conroy’s FMLA leave
was not granted as a result of a work related injury. Conroy
was a Clerical employee and has had this injury since 1985.
As agreed to at trial by the Township, Conroy was always
able to perform the essential functions of her job. The
Township had been accommodating her for her disability
related to the 1985 injury. Prior to the need for the FMLA
leave, Conroy was not requested to undergo an IME since
the first IME conducted in 1997. Clearly, the fact that
Conroy took FMLA leave is the only reason why the
Township demanded her to undergo a new IME, in spite of
the fact that Conroy was always able to perform the essential
functions of her job.
|
3
|
19
The Third Circuit, in affirming the trial court regarding
the requirement to undergo an IME, has now directly
conflicted with the decisions of other District Courts in the
various Circuits. As stated by this Court in Ragsdale y.
Wolverine World Wide, 535 US. 81, 122 S. Ct. 1155, 152 L.
Ed. 2d 167 (2002),
The FMLA's central Provision guarantees eligible
employees 12 weeks of leave in a l-year period
following certain events: a disabling health problem:
a family member's serious illness; or the arrival of a
new son or daughter. 29 U.S.C. § 2612(a)(1). Upon
the employee's timely return, the employer must
reinstate the employee to his or her former position or
an equivalent. § 2614(a)(1).”
Clearly, there must be intervention by this Court on this
very fundamental issue. The Third Circuit has now departed
from the intent of the FMLA, and the law that has been
established in several of the other Circuits.
The job protections of the FMLA re so
fundamentally important to all workers that this Court
must set a national standard and require all employers to
adhere to the regulations requiring notice of the
requirement to submit a return to work certification,
prior to taking any action refusing to reinstate an
employee to his position following FMLA leave.
The regulations promulgated pursuant to the FMLA
provide clear and definitive guidance as to what notice is
required to be given to an employee by the employer. 29
C.F.R. §825.301, provides in part, at paragraph (b)(1):
20
The employer shall also provide the employee with
written notice detailing the specific expectations and
obligations of the employee and explaining any
consequences of a failure to meet these obligations.
The written notice must be provided to the employee
in a language in which the employee is literate (see
Sec. 825.300(c)). Such specific notice must include,
as appropriate:
(v) any requirement for the employee to present a
fitness for duty certificate to be restored to
employment (see Sec. 825.310);
This particular regulation goes on to state, at paragraph
(f), “If an employer fails to provide notice in accordance
with the provisions of this section, the employer may not
take action against an employee for failure to comply with
any provision required to be set forth in the notice.”
One of Conroy’s best pieces of evidence of retaliation, in
addition to her termination, is the fact that the employer’s
notice of her FMLA leave was the lack of any requirement to
provide return to work certification, or submit to an IME.
However, in a cruel twist of fate, the Third Circuit ruled that
the issue of lack of notice was raised too late in the
proceedings so as to constitute a prejudice to the Township.
What the Third Circuit ignored was the fact that the trial
court held that the notice was sufficient as a matter of law."'
The Third Circuit has never issued a decision on whether
or not an employer can deny an employee’s reinstatement
when it fails to notify the employee of the duty to tender a
return to work certification or the duty to undergo an IME.
'! The issue of improper notice was briefed in Summary Judgment
motions months before trial.
21
However, the District Court in Wilson y. Lemington
Home For the Aged, 159 F.Supp.2d 186 (W.D.Pa. 2001),
stated that the plaintiff was discharged for failing, among
other things, to tender a fitness for duty certification. The
Court held, at page 192, “Once an employee gives notice to
an employer that FMLA leave is requested, the employer is
charged with the duty to “provide the employee with written
notice detailing the specific expectations and obligations of
the employee and explaining any consequences of a failure
tO meet these obligations.” Citing, 29 CFR
§$825.301(b)(1)(emphasis added). The Court went on to state
that the regulations are very clear on what must be provided
in the written notice. Wilson at 192.
The Wilson Court continued by indicating that the
employer in this case deemed the employee to have
voluntarily quit for failing to comply with its FMLA policy
of providing a medical certification. The Court stated that in
order to take this said action, Defendant (employer) must
have complied with 29 C.F.R. §825.301. Wilson at 193. The
Wilson court deemed the failure of the employer to give the
employee a notice setting for the requirement to notify the
employee of the need to tender a return to work certification
as retaliation. In Wilson, the court held that the Defendant's
act of deeming Plaintiff to have quit on December 30, 1997.
for the failure to provide a medical certification, constituted
an interference with Plaintiffs exercise of her FMLA rights,
in violation of 29 U.S.C. § 2615(a)(1).
Although there are no Circuit Court opinions on the issue
of whether or not the lack of Proper notice is sufficient
evidence of interference or a retaliation claim under the
FMLA, the Wilson court definitively sets a standard that
should be adopted by this Court along with the other issues
raised in this Writ of Certiorari.
22
Lastly, the Third Circuit, in ignoring the substantial
evidence of Conroy’s ADA claim and her “regarded as”
ADA claim, and by affirming the District Court in
granting summary judgment to the Township. The Third
Circuit has ignored its own decisions and this Court has
yet to rule on what accommodations are required to
“regarded as” employees in the context of the ADA.
Under 42 USC §12111(8), “a qualified individual with a
disability is an individual with a disability who, with or
without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires.” Clearly, it is undisputed that
Conroy was qualified and was able to perform the essential
functions of her job.
A disability is defined at 42 USC §12102(2) as (A) a
physical or mental impairment that substantially limits one
or more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded having
such an impairment.
In order for a major life activity to be substantially
limited by an impairment, the impairment must leave the
individual either (1) “unable to perform a major life activity
that the average person in the population can perform” or (2)
“significantly restricted as to the condition, manner, or
duration under which the individual can perform a particular
major life activity as compared to the condition, manner, or
duration under which the average person in the general
population can perform that same major life activity.” 29
C.F.R. § 1630.2(j)(1)().
Conroy’s disability is chronic back neuropathy (diseased
nerves) that is aggravated by cold air and drafts. In the event
the Court finds that Conroy does not have a disability within
23
the meaning of the Act, Conroy can clearly show that she is
regarded as disabled as defined in Buskirk v. Apollo Metals,
307 F.3d 160, (3d Cir. 2002). See also, Sarko vy. Penn-Del
Directory Co., 968 F. Supp 1026; affirmed 189 F.3d 464 (3d.
Cir. 1999). In Buskirk, this Court stated, “[E]ven an innocent
misperception based on nothing more than a simple mistake
of fact as to the severity, or even the very existence, of an
individual's impairment can be sufficient to Satisfy the
Statutory definition of a perceived disability." Buskirk at
167, citing, Deane v. Pocono Med. Ctr., 142 F.3d 138, 144
(3d Cir.1998).
Based on the Township’s past efforts to accommodate
Conroy, it is clear that the Township cannot now claim that
Conroy is not disabled for purposes of the PHRC or the
ADA. Not only does Conroy have a disability under the
ADA, she clearly has shown that the Township has regarded
her as disabled under the Act for many years.
In Buskirk vy. Apollo Metals, 307 F.3d 160, (3d Cir.
2002), the Third Circuit Stated, “In general, an employer's
perception that an employee cannot perform a wide range of
jobs suffices to make out a regarded as' claim." Citing,
Tavlor v. Pathmark Stores Inc.. 177 F.3d 180, 188 (3d Cir.
1999).
Buskirk did not address the issue of whether a “regarded
as” employee was entitled to an accommodation, the court
did cite School Board of Nassau County v. Arline. 480 U.S.
273, 288-89. 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987).
where the Supreme Court held that employers have an
obligation to provide reasonable accommodations to
employees who are regarded as disabled under the
Rehabilitation Act.
24
Conroy only ever sought a reasonable accommodation,
and the Township knew this. This is not a case where an
employee was discharged for being unable to perform the
essential functions of her job due to a disability, there was
never any dispute about Conroy being able to perform the
essential functions of her job. She merely wanted an
accommodation, and this claim arose prior to her taking and
exercising her rights under the FMLA.
The issue of a reasonable accommodation is not a novel
issue in the “regarded as” line of cases. It is an issue that
must be resolved under the ADA. Especially as it relates to
individuals that are receiving accommodations for
disabilities, and then who take FMLA leave, and then who
are terminated pursuant to a statutory scheme and/or case
law which does not require an employer to reinstate an
employee if they require an accommodation.
CONCLUSION
For the above reasons, a writ of certiorari should issue to
review the judgment and opinion of the Court of Appeals for
the Third Circuit.
Respectfully submitted:
C. SCOTT SHIELDS
SHIELDS & Hoppe, LLP
223 N. MONROE STREET
MEDIA, PA 19063
(610) 892-7777
APPENDIX
la
APPENDIX A
Decision of the United States Court of Appeals,
Third Circuit, Dated August 8, 2003
Patricia S. CONROY
V.
TOWNSHIP OF LOWER MERION;
LOWER MERION TOWNSHIP WORKERS
ASSOCIATION
No. 02-3217
Submitted: June 23, 2003
Decided: August 8, 2003
Affirmed. °
Before SLOVITER, AMBRO, and BECKER, Circuit
Judges.
BECKER, Circuit Judge.
Patricia S. Conroy appeals from the District Court's
grant of judgment as a matter of law in favor of the
defendant Township of Lower Merion on her claim brought
pursuant to the Family Medical Leave Act ("FMLA"). She
also appeals from the District Court's grant of summary
judgment in favor of the Township on her claim under the
Americans with Disability Act ("ADA") and __ the
Pennsylvania Human Relations Act ( "PHRA"), and in favor
of the defendant Transport Workers Union ("TWU") on her
2a
claim for breach of the duty of fair representation. We
affirm. The facts and procedural history are involved but
they are well known to the parties; we lay them out briefly
below.
I.
Conroy was employed for many years as an accounting
clerk in the Township's finance department. She injured her
back in a non-work-related incident and, as a result,
developed a sensitivity to air currents. Conroy presented the
Township with a letter from her doctor stating that her back
pain "is aggravated by certain weather conditions." [A504]
Conroy's doctor also stated that she experiences "severe,
intermittent pain" that is exacerbated by _ "several
environmental and physical changes" including "exposure to
air currents blowing from open windows," and recommended
that Conroy work in an area where "she will not be exposed
to drafts from open windows." [A508] The Township was
unable to determine from the letter what precise steps it
should take to deal with the problem, and hence it sent
Conroy, at its own expense, for an independent medical
examination ("IME") to determine how far away from vents,
windows, etc. she could work (the Township had a
longstanding practice of requesting that employees undergo
IMEs to clarify confusing medical information).
The doctor conducting the IME determined that Conroy
should avoid "actual, perceptible draft[s] that could be
objectively documented by an industrial hygienist or HVAC
specialist," and siated that "if the window 35 feet away from
... Conroy's cubicle does not give rise to any air currents at
her desk or cause an adverse change in temperature, then I
am not supporting medically that the window be closed
simply because she says to close it." [A518-519] The
Township followed up on the doctor's suggestions and
3a
employed a company to perform a ventilation Survey of the
finance department, including Conroy's work station. The
results of the survey showed that there were no perceptible
air currents directly impacting Conroy's work station: any air
currents dissipated before they reached Conroy's cubicle.
The Township informed Conroy that, despite the results of
the survey, the finance department would endeavor to keep
the windows closed. The Township also installed, at its own
cost, an air vent above the entrance door to the finance
department and weather stripping on all doors within the
department.
However, Conroy's condition worsened and she took a
leave of absence under the FMLA. Conroy's doctor indicated
that Conroy's back pain became worse when the air
conditioning was activated and when her supervisor opened
both his window and the door to his office. In the doctor's
opinion, "stressful working conditions and drafts in the work
area are the cause of the exacerbation of pains in her back."
[A538] After two months of leave, Conroy's doctor stated
that Conroy could return to work but gave another vague
Statement that she should not be exposed to air currents.
Once again, the Township requested that Conroy have an
IME to determine precisely how it could accommodate her,
but this time Conroy refused and instead requested that she
be moved to another workplace. Considering that Conroy
had missed two months of work, the Township did not want
to employ her without knowing exactly what working
conditions would accommodate her condition. After her
vacation and sick leave ran out, Conroy was terminated
(under the terms of the Collective Bargaining Agreement
("CBA") with the union, any employee who has missed work
for 180 days will be terminated).
Il.
4a
Pursuant to 29 U.S.C. § 2614, employees taking FMLA
leave are entitled to the following:
(a) Restoration to position
(1) In general
Except as provided in subsection (b) of this section,
any eligible employee who takes leave under section
2612 of this title for the intended purpose of the leave
shall be entitled, on return from such leave--
(A) to be restored by the employer to the position of
employment held by the employee when the leave
commenced; or
(B) to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms
and conditions of employment.
Although the Township was offering to restore Conroy to
her position, Conroy claims that the Township violated 29
U.S.C. § 2615(a)(1), which prohibits employers from taking
any action to "interfere with, restrain or deny the exercise of"
rights under the FMLA, by requiring her to submit to an IME
before returning to work. However, we note that Rinehimer
v. Cemcolift, Inc. holds that "the FMLA does not require 'an
employer to provide a reasonable accommodation to an
employee to facilitate his return to the same or equivalent
position at the conclusion of his medical leave.'" 292 F.3d
375, 384 (3d Cir. 2002) (internal citations omitted); see also
29 C.F.R. § 825.214(b) ("If the employee is unable to
perform an essential function of the position because of a
physical or mental condition, including the continuation of a
serious health condition, the employee has no right to
restoration to another position under the FMLA."). Thus, the
critical question is whether Conroy required an
accommodation to perform the essential functions of her job
(or an equivalent job). If so, then the Township had no duty
to restore her to her position after she took FMLA leave, and
the request that she undergo an IME certainly did not
A hb Pe RE eR A” ee oe
Sa
interfere with her FMLA rights because she had no right to
be restored at all.
We think that Conroy required accommodations. Conroy's
doctor indicated that she had taken a leave of absence
because her back problems had been exacerbated by stressful
working conditions and that she should not return to work
until conditions improved (although the doctor also made a
somewhat confusing statement that she could "return to
unrestricted duty" [A544]); this was after the Township had
already made a good faith effort to accommodate Conroy.
By requesting a second IME, the Township simply wanted to
ensure that Conroy would not come back to work and be put
in a situation in which her back problems would flare up
again, causing her to miss more work. Without adequately
addressing the air current problem (which required Conroy
to submit to an IME), Conroy could not continue to perform
the essential functions of her job because her back pain
would likely worsen once again, Causing her to miss work
(she certainly could not perform the essential functions of
her job if she was not able to work). It is difficult to
understand why Conroy would not agree to an IME (the
Township would have covered the cost), and it is most
unfortunate that this fine, long-term employee of the
Township so harmed herself by. refusing to agree, but the -
refusal is fatal to her position. The Township could have
outright refused to restore Conroy because she required an
accommodation, and thus her claim that the Township
violated her rights under the FMLA by requiring her to
submit to an IME fails; the IME would have allowed the
Township to restore Conroy to her position with an
accommodation, something it was not required to do under
the FMLA.
Neither can Conroy succeed on her FMLA retaliation
claim. She simply has not adduced evidence from which an
6a
inference can be drawn that she was fired because she
exercised her FMLA rights and not because she refused to
submit to an IME. Nor has she adduced evidence from which
an inference can be drawn that the Township's request that
she undergo an IME was a pretext for terminating her
because she exercised her FMLA rights.
Conroy also fails on her claim that the District Court erred
by excluding evidence of allegedly insufficient FMLA notice
because she never pled (even though she amended her
complaint twice) that the Township failed to provide
sufficient notice under the FMLA. Thus, the District Court
did not abuse its discretion by deciding that it would be
prejudicial to the defendants to allow this claim to go forth
when Conroy brought up the issue at such a late point. Nor
did the District Court err by denying Conroy's motion to
exclude evidence of thé Township's prior practice with the
union concerning IMEs -- this evidence is clearly relevant to
the determination of whether the Township could require
Conroy to undergo an IME, as past practice can be
considered an implied term of the CBA and CBAs can
supersede the FMLA. See Consolidated Rail Corp. v.
Railway Labor Executives' Ass'n, 491 U.S. 299, 311-12. 105
L. Ed. 2d 250, 109 S. Ct. 2477 (i989); 29 USL.
§2614(a)(4).
The District Court also did not err by granting the
Township's motion for summary judgment on the ADA and
PHRA claims (which are properly evaluated as one statute)
because Conroy cannot prove the elements of these claims.
The ADA and PHRA require that Conroy be disabled in a
way that affects major life activities, which she has not
shown. See 42 U.S.C. § 12102(2)(A); 29 C.F.R. §
1630.2(g)(1). Additionally, Conroy must show that she
suffered an adverse employment action as a result of
discrimination and that the Township's nondiscriminatory
7a
reason for her termination (that she refused to submit to an
IME) was a pretext for discrimination. Rather, it appears that
Conroy was terminated because she would not submit to an
IME, not because of her condition. Moreover, although "an
employer discriminates against a qualified individual with a
disability when it does ‘not. make reasonable
accommodations to the known physical or mental limitations
of the individual unless the [employer] can demonstrate that
the accommodation would impose an undue hardship on the
operation of the business of the [employer],"" Gaul v. Lucent
Techs., 134 F.3d 576, 579 (3d Cir. 1998) (citing 42 U.S.C. §
12112(b)(5)(A)), it was Conroy's failure to allow the
Township to figure out how reasonably to accommodate her
condition that led to her firing, not the Township's
unwillingness to accommodate her.
Finally, the District Court did not err by granting summary
Judgment to the TWU on Conroy's breach of the duty of fair
representation claim. To succeed on a claim like this, Conroy
was required to show that the union acted in bad faith by
refusing to submit her claim to arbitration. See Dykes vy,
SEPTA, 68 F.3d 1564, 157] (3d Cir. 1995), cert. denied 517
U.S. 1142 (1996). We conclude that Conroy has shown no
evidence of bad faith, and that her underlying arguments that
the Township discriminated and retaliated against her and
failed to accommodate her appear to be without merit. Thus,
the union acted reasonably.
The judgment of the District Court will be affirmed.
/s/ Edward R. Becker
Circuit Judge
August 8, 2003
8a
APPENDIX B
Memorandum and Order of the United States District Court
for the Eastern District of Pennsylvania,
Dated November 30, 2001
Patricia S. CONROY
V.
TOWNSHIP OF LOWER MERION;
LOWER MERION TOWNSHIP WORKERS
ASSOCIATION
Civil Action: 00 CV 03528
November 30, 2001
MEMORANDUM AND ORDER
JUDGE RONALD BUCKWALTER
Plaintiff has filed a seven-count Amended Complaint.
Count I alleges that the Township of Lower Merion
(Township) violated the Americans with Disabilities Act
(ADA) by failing to accommodate her disability.
Count II charges the Township with retaliation under
ADA because of plaintiff's filing a complaint with the
Pennsylvania Human Relations Commission.
Counts III and IV charge the Township with violations of
the Pennsylvania Human Relations Act for discrimination
(Count III) and retaliation (Count I'V).
9a
Count V charges the Township under 42 U.S.C. § 1983
and § 1988, alleging denial of due process and violations of
the First, Fourth, Fifth and Fourteenth [*2] Amendments to
the United States Constitution, .
Count VI alleges the Township violated the Family and
~ Medical Leave Act (FMLA),
Count VII charges the Lower Merion Township Workers
Association (Union) with breach of duty of fair
representation.
Township filed a motion for summary judgment as to
Counts I, II, Ill, IV and V, and has asked the court to
reconsider its ruling on Count VI and grant summary
judgment on it as well.
I. FACTS
Plaintiff has been employed as a clerk in the Finance
Department of the T Ownship for almost 23 years, all of
which have been in the Township Municipal Building, 75 E.
Lancaster Avenue, Ardmore, Pennsylvania. Sometime in
1984, she sustained an injury to her back in a non-work
related incident. As a result, she developed neuropathy and
sensitivity to moving air currents (See Amended Complaint).
The Township bas, according to plaintiff, over the course of
15 years, accommodated this sensitivity (See pages 1 and 2
of plaintiffs Amended Complaint). Later at page 4 of her
Amended Complaint, plaintiff contradicts this by saying
since November of 1997, the Township has failed to
accommodate her condition.
The above contradiction may be based upon a series of
events leading up to November of 1997. It appears that in
September of 1996, plaintiff presented the Township with a
SSS ee |
10a
note from William W. Lander, M.D., dated September 12,
1996, stating that plaintiff "is under my care for chronic back
pain which is aggravated by certain weather conditions." See
September 12, 1996 note by Dr. Lander, Exhibit "E" of
Township's brief. In response to this note by Lander, on
February 21, 1997, Roseann Siso (Siso), the Township's
Director of Personnel, sent a letter to Lander requesting
medical evidence concerning plaintiff's diagnosis, prognosis
and what, if any, restrictions and/or accommodations she
needs due to her medical situation. See February 21, 1997
letter from Siso, Exhibit "F" of Township's brief. On or
about July 7, 1997, Lander responded to Siso and indicated
that plaintiff has had a "disabling neuropathy" since injuring
her back in 1985 and, as a result, experiences "severe,
intermittent pain" that is aggravated by "several
environmental and physical changes" including "exposure to
air currents blowing from open windows." See July 7, 1997
letter from Lander, Exhibit "G" of Township's brief. Because
her condition could be aggravated by air currents, Lander
recommended that Conroy work in an area where "she will
not be exposed to drafts from open windows." Lander did
not, however, indicate that plaintiff could not work in a
space where a window would not expose her to a draft. Nor
did Lander provide a diagnosis or prognosis, or state specific
job duties that Conroy could not perform.
After receiving Lander's July 7, 1997 letter, the
Township attempted to ascertain the scope and extent of
plaintiffs condition, as well as the steps needed to
"accommodate" this condition. Because Lander had not
provided a diagnosis or specified the exact nature of the
"environmental and physical changes" that aggravated
plaintiff's back, the Township eventually decided to send
plaintiff for an independent medical examination ("IME").
See July 25, 1997 memorandum from Siso to plaintiff,
Exhibit "H" of Township's brief. .
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The Township contracted with Susan Blydenburgh,
M.D., M.P.H. (Blydenburgh), the Medical Director at the
Crozer Keystone Health System Centers for Occupational
Health, to conduct the IME on plaintiff. See October 10,
1997 letter from Siso to Blydenburgh, Exhibit "I" of
Township's brief. Siso explained to Blydenburgh that the
Township wanted "medical evidence . . . stating Conroy's
diagnosis, prognosis and what, if any, restrictions and/or
accommodations she may need due to her medical situation."
Of particular interest, Siso explained, was how indoor air
movements affected plaintiff as Opposed to normal air
movement outdoors.
Blydenburgh eventually conducted an IME on plaintiff
and reported the results back to the Township by letter dated
October 30, 1997. See October 30, 1997 letter from
Blydenburgh to Siso, Exhibit "J" of Township's brief. Based
on her review of plaintiffs medical history, as well as a
physical evaluation, Blydenburgh concluded that plaintiff's
back pain was aggravated by cold temperatures and air
movement and that plaintiff should "avoid coo] temperatures
and the issue of air movement -- which could come from a
window or an air conditioning vent."
At the Township's request, Blydenburgh issued a follow-
up letter clarifying several of the points she had made in her
October 30 letter. See November 4, 1997 letter from
Blydenburgh to Siso, Exhibit "K" of Township's brief. With
respect to the issue of avoidance of drafts, Blydenburgh
Clarified that his means "an actual, perceptible draft that
could be objectively documented by an industrial hygienist
or HVAC specialist." Blydenburgh further stated that "if the
window 35 feet away from... . Conroy's cubicle does not
give rise to any air currents at her desk or cause an adverse
change in temperature, then I am not supporting medically
that the window be closed simply because she says to close
a ———
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it." Blydenburgh further indicated that it may be necessary to
"objectively characterize indoor air conditions" in order to
determine whether these aggravating conditions exist at
Conroy's work station.
Following the Township's receipt of Blydenburgh's
November 4 letter, plaintiff complained to the Finance
Director, Mark Spector (Spector), that she has had to leave
work on several occasions recently due to air currents
emanating from Spector's and Bradley's offices. See January
23, 1998 memorandum from Conroy to Spector, Exhibit "L"
of Township's brief. Nevertheless, in her own brief, plaintiff
again states, "The Township has, over the course of 15 years,
accommodated this disability. However, since 1999, the
Township, despite knowing of plaintiff's disability, and
without explanation, has refused to continue to accommodate
her condition, all of which is in violation of the ADA and
PHRC." (See Plaintiff's brief in answer to Lower Merion
Township's Cross Motion for Summary Judgment, p. 2). It
appears then that up until sometime in 1999, plaintiff herself
acknowledges that Township has accommodated her
disability.
It bears noting, however, that in response to plaintiff's
memorandum dated January 23, 1998, Exhibit "L" of
Township's brief, the Township followed Blydenburgh's
~ suggestion and had ECS Risk Control, Inc. (ECS) perform a
ventilation survey of the finance department, including
plaintiff's work area.
ECS performed its ventilation survey on February 24,
1998, a cloudy and rainy day, with winds of approximately
35 miles an hour blowing into the side of the building where
Spector's and Bradley's offices were located. See March 23,
1998 letter from Tim Horn to Siso, Exhibit "M" of
Township's brief. ECS observed that under a variety of
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scenarios, with Spector's and Bradley's windows and doors
opened and closed, the service window opened and Closed,
the main door into the department opened and closed, and
the ventilation system both off and_on, no moving air
currents occurred at plaintiffs work Station. While air
currents did move throughout the department under these
scenarios, they dissipated before they reached plaintiffs
cubicle. Under each scenario, ECS observed that smoke rose
undisturbed to the ceiling and that no measurable airflow
was detected by a velometer. Even though ECS did not
observe any MOving air currents at plaintiff's work station, it
recommended that the Township install weather stripping at
the bottom of the office doors and relief air vents between
the hallway and office area.
The Township reported ECS's findings to plaintiff on
April 28, 1998. See May 8, 1998 memorandum from Siso to
plaintiff, Exhibit "N" of Township's brief. The Township
further informed plaintiff that as a show of good faith, staff
in the finance department would "endeavor to keep the
windows closed" and, if the Director's or Assistant Director's
windows were opened, every attempt would be made to keep
their doors closed. The Township subsequently followed
ECS's recommendations and installed an air vent above the
entrance door to the department and rubber door sweeps on
all doors within the department. See June 4, 1999
memorandum from Mike Beck (Beck), Supervisor of
Facilities Maintenance, to Siso, Exhibit "O" of Township's
brief.
Despite the efforts of the Township, plaintiff feels that
since 1999, the Township has not accommodated her
problem. In an April 27, 1999 memorandum, Exhibit "P" of
Township's brief, she wrote, "Not feeling well. Rich's
window open."
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As she points out in her brief at p. 2, on March 8, 2000,
plaintiff went out of work and by letter dated March 9, 2000,
Exhibit "Q" of Township's brief, Dr. Lander stated:
On this date, I have reexamined and treated my
patient, Patricia Conroy, for recurrent low back
pain. Her last visit to me was February 28, 2000 for a
similar condition. However, her pain today is much
more severe. Treatment today, as it was on her last
visit, was injections of corticosteroids mixed with a
local anesthetic. Today, three separate low back areas
were injected.
Mrs. Conroy related that the pain became much more
intense following the activation of the building air
conditioner with air streaming onto her body. This
occurred on March 6, 2000. In spite of the pain, Mrs.
Conroy returned to work on March 7, 2000.
However, when Mrs. Conroy's immediate
supervisor opened the office window and then left the
room, leaving the door open, the pain became much
more severe. She left work and has not worked on
March 8th and 9th. I refer you to a letter I wrote to
Lower Merion Township dated July 7, 1997.
It has been my pleasure to have been Mrs. Conroy's
physician for almost thirty-four years. During this
time, I have treated her for migraine headaches and
since her motor vehicle accident in 1985, I have been
one of her physicians treating her low back pain. It is
my professional opinion that stressful working
conditions and drafts in the work area are the cause
of the exacerbations of pain in her back, a disabling
neuropathy. At this time, for medical reasons, |
suggest Mrs. Conroy be placed on sick leave for an
extended time until her condition and the conditions
at work have improved.
lSa
The Township notified plaintiff by letter dated March 16,
2000, Exhibit "R" of Township's brief, that her "request for
Family and Medical Leave Act (FMLA) is approved for your
‘low-back pain." In pertinent part, the letter stated:
In addition, you have asked for "written instructions"
while you are out. As outlined in the enclosed FMLA
Policy and Sick Leave Program and Policy and in
accordance with Article 7.3b of the Collective
Bargaining Agreement between the Worker's
Association and Lower Merion Township, you will
not be required to call in each work day as long as
you continue on your approved = and
consecutive/extended sick leave of FMLA for "low-
back pain."
Plaintiff was a member of the Union and her employment
was governed by the Collective Bargaining Agreement
(CBA).
On or about May 3, 2000, Dr. Lander drafted a letter to
the Township indicating that plaintiff may return to work,
but "should avoid drafts and stressful working conditions,"
since these exacerbate her "low back pain and migraine
headaches." See May 3, 2000 letter from: Lander to the
Township, Exhibit "S" of Township's brief. Lander
subsequently provided the Township with a completed
"Medical Documentation for Non-Work Related Absence"
form, which stated that plaintiff could "return to unrestricted
duty" effective May 15, 2000. See May 18, 2000 Medical
Documentation for Non-Work Related Absence, Exhibit "T"
of Township's brief. Despite indicating that plaintiff could
"return to unrestricted duty," Dr. Lander further stated that
the Township should refer to a November 4, 1997 letter by
Susan Blydenburgh, M.D., concerning plaintiff's need to
avoid cold and drafts. In her November 4, 1997 letter, Dr.
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Blydenburgh suggested that plaintiff avoid cool indoor air
temperature and drafts. Thus, in his May 18 certification, Dr.
Lander stated both that Conroy could return to "unrestricted
duty" and that Conroy still needed to avoid cold and drafts.
Following the receipt of Lander's May 3 letter and what
is considered internally inconsistent May 18 certification, the
Township expressed confusion about the conditions under
which Conroy could return to work. As a result, the
Township requested Conroy to participate in an IME
pursuant to the terms of the CBA. See May 26, 2000 letter
from Jacqueline Z. Shulman to C. Scott Shields, Exhibit "U"
of Township's brief. Plaintiff refused to consent to get an
IME as requested by the Township. As the Township has
argued in a prior motion, plaintiff is required by the past
practices between the Township and the Union under the
CBA to submit to an IME.
Plaintiff has not been allowed to return to work from her
family and medical leave of absence. Plaintiff's employment
with the Township ended on September 9, 2000 when her
leave of absence surpassed 180 days. Under Article 7,
Section 7.5 of the CBA, an employee may remain on leave
from the Township for 180 days, after which time they lose
their status as a Township employee under Article 13,
Section 13.7. See, 1999-2002 Agreement between the
Township and the Union, Articles 7 and 13, Exhibit "X" of
Township's brief.
It is still not clear that the past practices of the Township
required employees to undergo IME's when the employee's
medical documentation was unclear, inconsistent or
confusing. Both the uncontradicted Affidavit of Roseann
Siso, Director of Human Resources for the Township,
Exhibit "A" of Township's Supplemental Memorandum of
Law (Docket No. 42), and the Declaration of Thomas G.
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Strang, Secretary of the Union. attached to its brief (Docket
No. 33), a portion of which is quoted from page 3 of his
Declaration as follows:
After receiving the attorneys' letter, I gave copies of
it to the members of the Executive Board. We met to
discuss Ms. Conroy's grievance and the attorneys’
evaluation of it. The members of the Board
recognized the Township's argument that there were
some potential inconsistencies in the doctor's notes
provided by Ms. Conroy. It troubled us that Ms.
Conroy was resisting the offer to be examined by a
doctor who would be chosen by her and the
Township. This aspect of the Township's Family
Medical Leave Policy which had been agreed to by
the union, actually predated the Policy, and had never
been a problem for other employees before. We
thought that the Township's actions with regard to
Ms. Conroy were not unreasonable and were
consistent with our past practice;
are evidence that there was indeed such a policy. But the
written Township FMLA policy seems to be somewhat
inconsistent with this. In any event, the material facts
necessary to establish the policy are not clear enough from
the present record to summarily find in favor of the
Township.
II. LAW
The plaintiffs § 1983 claim fails to the extent that
plaintiff purports to argue a denial of due process,
substantive as well as procedural. As to the former, there is
no fundamental property interest in public employment for
purposes of substantive due Process. As to the latter,
procedural due process is satisfied inasmuch as the CBA
ess.
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provided plaintiff with the process she was due.
Summary judgment will be granted as to Count V.
With regard to Counts I and III, alleging discrimination
on the basis of her alleged disability, the initial hurdle for
plaintiff is proving that her disability "chronic back pain"
comes under the ADA definition of disability. There is really
some doubt on this record that plaintiff has met the first
hurdle.
However, assuming she can pass the prima facie hurdle
under the McDonnell-Douglas burden shifting analysis
applicable to ADA claims, Shaner v. Synthes, 204 F.3d 494,
500 (3d Cir. 2000), the Township has articulated a
legitimate, non-discriminatory reason for not returning
plaintiff to work; namely, that she would not submit to an
IME. Because plaintiff refused to do so, the Township did
not allow plaintiff to return to work. Her subsequent
termination was mandated under the CBA when her leave of
absence exceeded 180 days. See Article 7, Section 7.5.
Plaintiff has not been able to point to direct or
circumstantial evidence from which a fact finder would
reasonably disbelieve the Township's articulated legitimate
reasons; or believe that an invidious discriminatory reason
was more likely than not the determinative cause of its
actions. Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994),
Sheridan v. E.I.Dupont deNemours and Co., 100 F.3d 1061
(3d Cir. 1996). Indeed, by her own admission, the Township
accommodated her back pain for 15 years until sometime in
1999. Thereafter, there is simply nothing plaintiff can point
to that meets the Fuentes-Sheridan burden placed upon her.
As to Counts II and IV regarding retaliation, it is clear
that plaintiff can point to no causal connection between her
protected activity of filing a claim with the PHRA and the
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Township's request that she have an IME before returning to
work.
As to Count VII, the Union did not breach its duty of fair
representation toward the plaintiff, based upon the
uncontradicted facts of this case and the uncontradicted
reason given by the Union with respect to plaintiff's case.
Accordingly, it is hereby ORDERED that:
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(1) Judgment is entered in favor of defendant, Township
of Lower Merion (Docket No. 34) and against plaintiff
Patricia S. Conroy, on all counts except Count VI.
(2) Judgment is entered in favor of Lower Merion
Township Workers Association (Docket No. 33) and against
plaintiff Patricia S. Conroy on Count VII.
(3) Further proceedings in this case are STAYED until
January 3, 2002. Thereafter, discovery may continue until
February 4, 2002, limited to essentially the latest Affidavit of
Roseann Siso, Exhibit "A" of Township's Supplemental
Memorandum of Law. ;
(4) Except as set forth above. plaintiffs motion to
exclude evidence produced after the close of discovery, etc.
(Docket No. 44) is DENIED.
A status conference is scheduled for Wednesday,
February 6, 2002 at 4:00 p.m. in the chambers of the
undersigned.
BY THE COURT:
RONALD L. BUCK WALTER, J.
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APPENDIX C
Memorandum and Order of the United States District Court
for the Eastern District of Pennsylvania,
Dated, August 7, 2001
Patricia S. CONROY
V.
TOWNSHIP OF LOWER MERION;
LOWER MERION TOWNSHIP WORKERS
ASSOCIATION
Civil Action: 00 CV 03528
Auust 7, 2001
ORDER
JUDGE RONALD BUCKWALTER
Currently before the Court is a motion for partial
summary judgment on behalf of Patricia Conroy
("Plaintiff") and a cross-motion for summary judgment on
behalf of Township of Lower Merion ("Defendant"). The
Court will grant Defendant's cross-motion and will dismiss
Count IV of Plaintiff's complaint.
I. BACKGROUND
This suit began when Plaintiff, an employee of
Defendant, experienced aggravation of a chronic back
problem and sought a leave of absence under the FMLA.
Defendant granted Plaintiff leave. Approximately two
months later, Plaintiff notified Defendant of her desire to
aie ie
ea aa gr wre eeprom see
2la
retum to work. Plaintiff submitted a certification from her
treating physician who wrote, "It is my professional opinion
that Patricia may return to work. As noted previously, she
Should avoid drafts and stressful working conditions...." PI.
Ex. C-14. Finding this note unclear and confusing,
Defendant informed Plaintiff that she would need to be
evaluated by an independent medical examiner in order to
ascertain her fitness to return to work. Plaintiff refused to
comply and was not permitted to resume her employment.
Ultimately, Plaintiff was terminated and she filed this suit.
II. LEGAL STANDARD
A motion for summary judgment shall be granted where
all of the evidence demonstrates "that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed. nm. Civ. P.
56(c). If the moving party establishes the absence of the
genuine issue of material fact, the burden shifts to the
nonmoving party to "do more than simply show that there is
some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586, 89 L. Ed. 2d 538. 106 S. Ct. 1348 (1986).
When considering a motion for summary judgment, a court
must view all inferences ir ~ light most favorable to the
nonmoving party. See Unite. States v. Diebold. 369 US.
654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). Therefore, it
is plain that "Rule 56(c)" mandates the entry of summary
judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317. Daa,
91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In such a situation.
"the moving party is ‘entitled to a judgment as a matter of
law' because the non-moving party has failed to make a
—_$—<—<—$—<$<$$$—<—<—————————rr ee
a a a aa ate es cna re
22a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof." Id. at 323
(quoting Fed. R. Civ. P. 56(c)).
III. DISCUSSION
As the parties agree that there are no material facts in
dispute, the issue for summary judgment is whether
Defendant violated the Family Medical Leave Act
("FMLA") when it conditioned Plaintiff's return to work on
her obtaining an independent medical examination ("IME").
Plaintiff argues that the FMLA guaranteed her the right to
return to work as long as her physician provided certification
that she was fit to resume her employment. Defendant
counters, arguing that Plaintiff's medical certification was
unclear and confusing, and as the FMLA permits employers
to develop procedures for restoring employees after absence,
it did not act improperly when it invoked its own practices to
handle this situation. Defendant also explains that the
collective bargaining agreement ("CBA") between
Defendant and Plaintiff's union supersedes the FMLA's
procedures on the condition that the CBA procedures do not
compromise the substantive rights guaranteed by FMLA.
The statutory provisions and the accompanying
regulations that make up the FMLA are explicit in their
discussion of the certification and return procedures for an
employee who has taken leave. They permit an employer to
require certification from an employee's physician stating
that an employee is able to resume her work responsibilities.
See Family and Medical Leave Act, 29 U.S.C. § 2614(a)(4)
(2001); see also 29 C.F.R. § 825.310(a) (1993). Where
clarification of this certification is necessary, employers are
directed to consult the employee's physician rather than to
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23a
seek an additional examination. See 29 C.F.R. § 825.310(c).!
Despite the existence of these provisions, the FMLA allows
a CBA to establish its own procedures for an employee's
return to work and these procedures can supersede those of
the FMLA. See 29 U.S.C. § 2614(a)(4). The Supreme Court
has held that when interpreting a CBA, a court may consider
the parties’ past practices as implied terms of the CBA. See
Conrail v. R, lway Labor Executives' Ass'n, 491 U.S. 299,
311-12, 105 L. Ed. 2d 250, 109 S. Ct. 2477 (1989).
Accordingly, Defendant incorporated its own past practices
into the CBA and developed procedures as permitted under
the FMLA. Defendant consistently applied the same IME
procedure _utilized in this case in the twenty-six prior
situations where an employee's medical certification was
unclear or confusing. For these reasons, the Court will treat
Defendant's past practices an implied condition of the CBA.
Plaintiff argues that the existence of an integration clause in
the CBA precludes treatment of Defendant's past practices as
implied terms of the agreement. However, as an integration
Clause is not necessarily dispositive where interpreting union
contracts, the Court believes it is appropriate to consider
Defendant's past practices in this case. See County of
Allegheny y. Allegheny County Prison Employees Indep.
Union, 476 Pa. 27, 381 A2qd 849, 855 (Pa. 1977).
Finally, the Court must determine whether these past
' Plaintiff references a proposed regulation which the Department of
Labor declined to adopt that would enable employers to obtain additional
medical opinions in a fitness-for-duty certification. Plaintiff argues that
this decision means the Proposed procedure conflicted with the FM LA's
Statutory guarantees. The Court disagrees. The Department of Labor's
reasons for declining to formalize the practice do not contemplate
Plaintiff's argument and they do not even suggest disapproval of the
practice. See Wage and Hour Division, 60 Fed. Reg. 2180, 2226 (Jan. 6,
1995).
ee
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24a
practices compromise the protections afforded to Plaintiff
under the FMLA, because where a provision of the CBA is
more restrictive than that of the FMLA, the FMLA will
supersede the CBA. See McKiernan yv. Smith-Edwards-
Dunlap Co., 1995 Dist. LEXIS 6822, *12 (E.D. Pa. May 17,
1995) (citing 29 U.S.C. § 2652(b)). Therefore, the question
remains whether a practice that requires Plaintiff to submit to
an IME where her medical certification is unclear,
diminishes the protection of the FMLA.
The Court finds that this practice does not interfere with
the rights guaranteed by the FMLA. The FMLA simply
entitles an employee to resume her employment. See 29
U.S.C. § 2614. It does not, however, ensure a particular
administrative procedure for returning to work. Therefore, as
Defendant is merely implementing a policy for handling
situations where a certification is unclear, these practices do
not restrict or even affect Plaintiff's rights under the FMLA.
Even though requiring an IME creates an additional step for
Plaintiff, Defendant covers the cost of the IME and this
practice does not alter the standard for Plaintiff's eligibility
or make it more difficult for Plaintiff to be deemed qualified
to return. For these reasons, the Court finds that Defendant's
use of past practices in this situation does not constitute a
violation of the FMLA.
IV. CONCLUSION
For the foregoing reasons, the Court denies Plaintiff's
motion for partial summary judgment and grants Defendant's
cross-motion for partial summary judgment. Judgment is
ordered for Defendant with respect to Count IV of Plaintiff's
complaint.
An appropriate order follows.
as
2Sa
ORDER
AND NOW, this 7th day of August, 2001. upon
consideration of Plaintiff's Motion for Partial Summary
Judgment (Docket No. 13), Defendant Township of Lower
Merion's Response to Motion for Partial Summary Judgment
and Cross-Motion for Partial Summary Judgment (Docket
No. 14), Plaintiffs Answer to Lower Merion Township's
Cross Motion [sic] for Summary Judgment (Docket No. 16),
Defendant's Reply (Docket No. 20) and Plaintiff's Surreply
Brief to Lower Merion Township's Cross Motion for
Summary Judgment (Docket No. 24), it is hereby
ORDERED that Plaintiff's motion for partial summary
judgment is DENIED and Defendant's motion for partial
summary judgment is GRANTED. Accordingly, Count IV
of Plaintiffs complaint — is dismissed with prejudice.
BY THE COURT:
RONALD L. BUCKWALTER, J.
August 7, 2001
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APPENDIX D
Order of the United States Court of Appeals,
Third Circuit, Dated December 15, 2003
—
Patricia S. CONROY
V.
TOWNSHIP OF LOWER MERION;
LOWER MERION TOWNSHIP WORKERS
ASSOCIATION
No. 02-3217
Submitted: June 23, 2003
Decided: August 8, 2003
Rehearing Denied: | December 15, 2003
SUR PETITION FOR PANEL REHEARINC WITH
SUGGESTION FOR REHEARING EN BANC
Before SCIRICA, Chief Judge, SLOVITER,
NYGAARD, ALITO, ROTH, McKEE, RENDELL,
BARRY, AMBRO, FUENTES, SMITH, CHERTOFF and
BECKER, Circuit Judges.
The petition for rehearing filed by Appellant having been
submitted to the judges who participated in the decision of
this Court, and to all the other available circuit judges in
active service, and no judge who concurred in the decision
having asked for rehearing, and a majority of the circuit
judges of the circuit in regular active service not having
27a
voted for rehearing by the court en banc. the petition for
rehearing is DENIED.
BY THE COURT:
/s Edward R. Becker
Circuit Judge
Dated: December 15, 2003
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.