BRAHENY v. COMMONWEALTH OF PENNSYLVANIA et al
EXPLANATION AND ORDER THAT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IS DENIED. SIGNED BY HONORABLE ANITA B. BRODY ON 1/18/12.1/18/12 ENTERED AND COPIES, E-MAILED.(ldb, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
PENNSYLVANIA, et al.,
EXPLANATION AND ORDER
Plaintiff Brian Braheny brings suit against the Commonwealth of Pennsylvania alleging
discrimination in violation of the Rehabilitation Act (“RA”), 29 U.S.C. § 794 et seq., and David
Diguglielmo, in his official capacity as the Superintendent at the State Correctional Institution at
Graterford (“Graterford”), alleging discrimination in violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et seq. Braheny alleges that during his employment by the
Pennsylvania Department of Corrections (“PDOC”) as a corrections officer at Graterford,
Defendants failed to accommodate his disability in violation of federal law. Defendants move
for summary judgment on all claims.
Braheny suffers from a condition known as Lymphocytic Colitis (“colitis”), the main
symptom of which is uncontrollable diarrhea. As a result of his colitis, Braheny submitted a
Request For Accommodation Form to the PDOC, requesting job assignments with ready access
to a bathroom. The PDOC denied his request. Braheny continued to work at Graterford without
an accommodation; however, his attendance slipped. The PDOC eventually terminated Braheny
for unacceptable attendance.
II. LEGAL STANDARD
Summary judgment will be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law . . .
.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” if
the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Id.
The moving party bears the initial burden of demonstrating that there is no genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must
then “make a showing sufficient to establish the existence of [every] element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322. In ruling
on a motion for summary judgment, the court must draw all inferences from the facts in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). However, the nonmoving party may not “rely merely upon bare assertions,
conclusory allegations or suspicions” to support its claims. Fireman’s Ins. Co. of Newark, N.J. v.
DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).
In essence, the inquiry at summary judgment is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
Defendants move for summary judgment because they contend that Braheny cannot
establish a prima facie case of disability discrimination. To establish a prima facie case of
discrimination a plaintiff must show: “(1) he is a disabled person within the meaning of the
ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse
employment decision as a result of discrimination.” Gaul v. Lucent Techs., Inc., 134 F.3d 576,
580 (3d Cir. 1998) (ADA claim); accord Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)
(applying same prima facie elements to a claim under the RA).1 Defendants assert that Braheny
cannot demonstrate any element of his prima facie case.
A. Is Braheny a Disabled Person?
The ADA defines a disability as: “(A) a physical or mental impairment that substantially
limits one or more major life activities of such individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment . . . .” 42 U.S.C. § 12102(2).2 Braheny alleges
“The Rehabilitation Act expressly makes the standards set forth in the 1990 Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq., applicable to federal employers and to
employers receiving federal funding.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007)
(citing 29 U.S.C. § 791(g)). The RA is applicable to the Commonwealth of Pennsylvania
because the Commonwealth and its Corrections Department receive federal funding. For
convenience I will refer only to the ADA; however, because the requirements of these claims are
identical, my analysis is equally applicable to Braheny’s RA claim.
I recognize that amendments to the ADA took effect on January 1, 2009. See ADA
Amendments Act of 2008, Pub. L. 110-235, 122 Stat. 3553 (2008). However, I refer to the law
as it existed prior to the amendments because the events giving rise to Braheny’s claims occurred
prior to when the amendments became effective, and neither party contends that the amendments
should apply to this case. See Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 n.2 (3d Cir.
2010) (applying the ADA and its regulations as they existed prior to the ADA Amendments Act
where the parties did not argue that the amendments had retroactive effect). Additionally, I
decline to retroactively apply the amendments because the Court of Appeals for the Third Circuit
has stated, albeit in a not precedential opinion, that the amendments cannot be applied
retroactively. Britting v. Sec’y, Dep’t of Veteran Affairs, 409 Fed. Appx. 566, 569 (3d Cir. 2011)
(not precedential). Moreover, it has also recognized that all other circuit courts that have reached
the issue “have uniformly concluded that the ADAAA is not retroactively applicable.” Id. at 569
n.3 (citing Ragusa v. Malverne Union Free Sch. Dist., 381 Fed. Appx. 85, 87 n.2 (2d Cir. 2010);
that his colitis qualifies as a disability under subsection A. Defendants do not appear to argue
that Braheny’s colitis was not an impairment. Rather, they argue that Braheny’s colitis did not
substantially limit a major life activity. Braheny asserts that the major life activity affected by his
colitis is his ability to eliminate waste from his body. The Third Circuit has already held that
elimination of waste from the blood is a major life activity. Fiscus v. Wal-Mart Stores, Inc., 385
F.3d 378, 385 (3d Cir. 2004); accord Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 251
(4th Cir. 2006) (holding that elimination of bodily waste is a major life activity). Additionally,
the Sixth Circuit has expressly held that waste elimination, specifically the ability to control
one’s bowels, can be a major life activity. Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th
Cir. 1999). This precedent sufficiently establishes that waste elimination is a major life activity.
Thus, the only remaining question is whether Braheny’s colitis substantially limited his ability to
The EEOC regulations define “substantially limits” as follows:
“(i) Unable to perform a major life activity that the average person in the general
population can perform; or (ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life activity as
compared to the condition, manner, or duration under which the average person in
the general population can perform that same major life activity.”
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999) (quoting 29 C.F.R. §
1630.2(j)(1)). Although Braheny is able to eliminate waste, when symptomatic he suffers from
Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 n.4 (8th Cir. 2010); Thornton v. United
Parcel Serv., Inc., 587 F.3d 27, 34 n.3 (1st Cir. 2009); Becerril v. Pima Cnty. Assessor's Office,
587 F.3d 1162, 1164 (9th Cir. 2009); Fredricksen v. United Parcel Serv., 581 F.3d 516, 521 n.1
(7th Cir. 2009); Lytes v. DC Water & Sewer Auth., 572 F.3d 936, 940-42 (D.C. Cir. 2009);
Milholland v. Sumner Cnty. Bd. of Educ., 569 F.3d 562, 565-67 (6th Cir. 2009); EEOC v. Agro
Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009).
completely “uncontrollable diarrhea,” and has gone through periods in which he has needed to go
to the bathroom between thirty and sixty times a day. Pl.’s Ex. 1, at 20, 34. Additionally, his
colitis resulted in “several accidents at work.” Pl.’s Ex. 3. While Braheny’s colitis is now under
much better control and flare ups occur with much less frequency than they did while Braheny
was employed as a corrections officer, his “daily routine in general, every single day revolves
around [his] condition.” Pl’s Ex. 1, at 111. A reasonable jury could conclude that Braheny is
“[s]ignificantly restricted as to the condition, manner or duration” under which he can eliminate
waste “as compared to the condition manner, or duration under which the average person in the
general population” eliminates waste. Taylor, 184 F.3d at 307 (internal quotation marks
omitted). Therefore, a genuine issue of material fact exists as to whether Braheny is disabled.
B. Is Braheny Qualified to Perform the Essential Functions of the Job?
Whether a person is qualified to perform the essential functions of the employment
position is a two part inquiry: “(1) whether the individual has the requisite skill, experience,
education and other job-related requirements of the position sought, and (2) whether the
individual, with or without reasonable accommodation, can perform the essential functions of
that position.” Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006) (citing 29
C.F.R. § 1630.2(n)). Defendants appear to concede that Braheny has met the first part of the
inquiry. However, they argue that Braheny was not qualified because he could not perform an
essential function of the job–the requirement that he have the ability to work all posts without
advance notice. As a corrections officer, Braheny’s job post changed daily. Each day Braheny
would be assigned to a different duty when he reported to work. Because Braheny stated that he
could not work posts in which a bathroom was not easily accessible, Defendants argue that he
was unable to work all posts without advance notice.
“Whether a job duty is an ‘essential function’ turns on whether it is ‘fundamental’ to the
employment position.” Id. at 612 (citing 29 C.F.R. § 1630.2(n)(l)). For the following reasons,
but not limited to them, a job may be considered essential:
“(i) The function may be essential because the reason the position exists is to
perform that function;
(ii) The function may be essential because of the limited number of employees
available among whom the performance of that job function can be distributed;
(iii) The function may be highly specialized so that the incumbent in the position
is hired for his or her expertise or ability to perform the particular function.”
Id. (quoting 29 C.F.R. § 1630.2(n)(2)). While these reasons are not the only ones that may be
considered, none of them support a finding that the ability to work all posts without advance
notice is necessarily an essential function.
The following nonexhaustive list of types of evidence is designed to help a court
determine whether a function is essential:
“(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing
applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the jobs; and/or
(vii) The current work experience of incumbents in similar jobs.”
Skerski v. Time Warner Cable Co., a Div. of Time Warner Entm’t Co., L.P., 257 F.3d 273, 279
(3d Cir. 2001) (quoting 29 C.F.R. § 1630.2(n)(3)). Defendants have produced a Generic
Essential Job Functions list for corrections officers from 1997 that lists as an essential function
that a corrections officer “[m]ust be able to work all posts without advance notice.” Pl.’s Ex. 22.
While this first factor may be an important consideration, “the employer's judgment as to which
functions are essential-is but one piece of evidence to be considered by the trier of fact,” and
standing alone is not determinative. Turner, 440 F.3d at 613 n.6. Weighing against this
evidence is the admission by Jennifer Haas, the Director of the Bureau of Human Resources for
the PDOC, that a modified duty program exists for employees with temporary injuries, and that
there have been situations in institutions other than Graterford where a corrections officer has
been given a temporary modified duty that did not require working all posts. Pl.’s Ex. 24, at 2327.
Moreover, Jennifer Haas has provided the following explanation as to why ability to work
all posts without advance notice is essential:
We spend a lot of time planning for things that we hope don’t happen, like fights,
like staff assaults, like disturbances, like hostage situations, like, hopefully never,
riots. With that in mind, we need to always know that all of our officers can be
redeployed to any post at any time, that if something happens we can say, you
know, Officer A, you need to go to the yard now, and, you know, Officer B, you
need to relieve, you know, Officer C. We have to know that everyone can do all
of the jobs in the institution at all times in order to run the institution safely and
Pl.’s Ex. 24 p. 31-32. Based on this explanation, Braheny asserts that the essential job function is
not the ability to work all posts without advance notice, but rather the ability to work all posts
without advance notice in the event of emergency. According to Braheny, he was unable to
continually work in positions without ready access to the bathroom; however, he had no problem
working any post during an emergency. This assertion is supported by his declaration in which
he states that he was able to fill any post in an emergency. See Pl.’s Ex. 3. Although Braheny
did write in his Request for Accomodation Form: “Cannot work in areas of facility or duty
assignments that do not allow easy and ready access to lavatory facilities,” Pl.’s Ex. 9,
Defendants never followed up with Braheny as to what he meant by this statement. If working
all posts in the event of an emergency is the essential function, given Braheny’s declaration that
he could work any post in an emergency, there is a genuine issue of material fact as to whether
Braheny could perform this function. Additionally, if Defendants continue to maintain that the
essential function is the ability to work all posts without notice even in non-emergency situations,
there remains a genuine issue of fact as to whether this requirement is essential. Thus, a
reasonable jury could conclude that Braheny is qualified to perform the essential functions of the
C. Has Braheny Suffered an Adverse Employment Action?
Defendants contend that Braheny was not terminated because of his disability; therefore,
he did not suffer an adverse employment action. Braheny asserts that Defendants failure to
accommodate him is the adverse employment action. Braheny is correct that “[a]dverse
employment decisions . . . include refusing to make reasonable accommodations for a plaintiff’s
disabilities.” Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004).
Under the ADA, “an employer discriminates against a qualified individual with a disability when
the employer does ‘not mak[e] 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].’” Taylor,
184 F.3d at 306 (alteration in original) (quoting 42 U.S.C. § 12112(b)(5)(A)). “Reasonable
accommodation further includes the employer's reasonable efforts to assist the employee and to
communicate with the employee in good faith, under what has been termed a duty to engage in
the interactive process . . . .” Williams, 380 F.3d at 761 (citation omitted) (internal quotation
Braheny alleges that Defendants discriminated against him by (1) failing to provide him
with his requested reasonable accommodation; and (2) failing to engage in good faith in the
interactive process. “Generally, the question of whether a proposed accommodation is
reasonable is a question of fact.” Buskirk v. Apollo Metals, 307 F.3d 160, 170 (3d Cir. 2002). If
a jury concludes that Braheny was disabled and qualified for his job, then it could also find that
Defendants failure to assign him to posts with ready access to a bathroom was a failure to
reasonably accommodate him. As for a failure to engage in good faith in the interactive process,
an employee can demonstrate that its employer breached this duty by showing:
1) the employer knew about the employee's disability; 2) the employee requested
accommodations or assistance for his or her disability; 3) the employer did not
make a good faith effort to assist the employee in seeking accommodations; and
4) the employee could have been reasonably accommodated but for the employer's
lack of good faith.
Taylor, 184 F.3d at 319-20. Here, there is no dispute that Defendants knew about Braheny’s
disability and that he requested accommodation. Additionally, as discussed supra, if a trier of
fact concludes Braheny is disabled and qualified for his job, a genuine issue of material fact
exists as to whether he could have been reasonably accommodated. Thus, the only real issue is
whether Defendants made a good faith effort to help Braheny devise an accommodation.
According to the Third Circuit:
Employers can show their good faith in a number of ways, such as taking steps
like the following: meet with the employee who requests an accommodation,
request information about the condition and what limitations the employee has,
ask the employee what he or she specifically wants, show some sign of having
considered employee's request, and offer and discuss available alternatives when
the request is too burdensome.
Taylor, 184 F.3d at 317. While there is no formula that dictates what is required of an employer
to interact in good faith, the Third Circuit has admonished that “employers take seriously the
interactive process,” Williams, 380 F.3d at 772 n.16, and has refused to grant summary judgment
for a defendant where the employer has not clearly engaged in good faith in the interactive
process. For instance, in Deane v. Pocono Medical Center, the Third Circuit reversed the district
court’s grant of summary judgment to the employer, explaining that “the single telephone
interaction” between the employee and employer “hardly satisfies our standard that the employer
make reasonable efforts to assist the employer, to communicate with him in good faith, and to
not impede his investigation for employment.” 142 F.3d 138, 149 (3d Cir. 1998) (internal
quotation marks omitted).
On three separate occasions in September 2005, September 2006, and December 2006,
Braheny requested the accommodation of being placed in posts with ready access to a bathroom.
It was not until after Braheny made a third request that Defendants responded. The PDOC’s
ADA Committee, the final arbiter as to whether or not to grant an accommodation, wrote a letter
to Braheny asking him to identify the duty assignments that he could not perform because there
was no easy access to a bathroom. Braheny sent a list to Defendants, and shortly after he
received a letter informing him that his accommodation request was denied because it
“prohibit[s] you from performing the essential job duties of your position for which you were
hired.” Pl.’s Ex. 14. Although it was the policy of the ADA Committee to get feedback from an
employee’s supervisor when making an accommodation decision, the ADA Committee received
no feedback from Braheny’s supervisor. In fact, in making its accommodation decision, the
ADA Committee never spoke with Braheny, with anyone who worked at Graterford, or with
Braheny’s doctor or other medical professionals. Pl.’s Ex. 11, at 30, 31; Pl.’s Ex. 23, at 43, 44.
It is doubtful that Defendants engaged in good faith in the interactive process when the only thing
they did was engage in a single letter exchange between Defendants and Braheny, on the limited
issue of which posts did not have easy access to a bathroom, before deciding to deny his
accommodation request. This is hardly surprising given that the neither the ADA coordinator nor
the ADA Committee had received any training on the ADA, and the ADA coordinator had never
heard of the term interactive process. Pl.’s Ex. 11, at 28, 29, 33.
Based on the foregoing discussion, a genuine issue of fact exists as to whether Defendants
failed to reasonably accommodate Braheny.
For the reasons set forth above, Defendants’ Motion for Summary Judgment is denied.
AND NOW, this _18th_ day of __JANUARY , 2012, it is ORDERED that Defendants’
Motion for Summary Judgment (ECF No. 10) is DENIED.
S/ANITA B. BRODY
ANITA B. BRODY, J.
Copies VIA ECF on _______ to:
Copies MAILED on _______ to:
O:\ABB 2012\A - K\Braheny v. Commonwealth of PA SJ Explanation & Order.wpd
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