ASPEN v. WILHELMSEN SHIPS SERVICE

Filing 31

MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IS DENIED; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 3/9/15. 3/10/15 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN M. ASPEN,
Plaintiff,
v.
WILHELMSEN SHIPS SERVICE,
Defendant.

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CIVIL ACTION
No. 13-6057

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

March 9, 2015

Plaintiff John Aspen brings this action under the
Americans with Disabilities Act (“ADA”), alleging that Defendant
Wilhelmsen Ships Service--his former employer--discriminated
against him on the basis of a disability incurred at the
workplace, and that it failed to provide him with a reasonable
accommodation. Defendant has moved for summary judgment. For the
reasons that follow, the Court will deny the motion.

I.

BACKGROUND1
Defendant Wilhelmsen is a worldwide maritime services

company that provides services to merchant vessels at roughly
2,400 ports in 125 countries. Compl. ¶ 4. Plaintiff John Aspen
1

In accordance with the appropriate standard of review
for motions for summary judgment, the Court views the facts in
the light most favorable to the non-moving party--the Plaintiff.

is an individual who was employed by Defendant as a “ship’s
agent” from November 2005 until November 16, 2012. Id. ¶¶ 5-6.
While in Defendant’s employ, Plaintiff worked at the company’s
Folcroft office and serviced vessels at ports in Philadelphia,
Baltimore, Camden, and Wilmington. Id. ¶ 6. Around seventy-five
percent of Plaintiff’s duties were sedentary office tasks, with
the remaining twenty-five percent involving traveling to and
boarding vessels serviced by Defendant. Id. ¶ 7. Specifically,
Plaintiff’s position often required him to travel to various
ports of call, ascend gangways and ladders, walk a few hundred
yards from the terminal to the ship, and carry heavy bags and
boxes onto the ship. Plaintiff’s Statement of Material Facts
¶ 6, ECF No. 29 [hereinafter “Pl.’s SMF”].
In early 2012, Defendant began to require the presence
of a ship’s agent in Baltimore upon the arrival and departure of
certain foreign customers’ ships. Id. ¶ 7. The responsibility of
traveling to the Baltimore port was split among three employees
at Defendant’s Folcroft Facility: (1) Y.S. Lee, as a ship’s
agent; (2) Plaintiff, as a manager, ship’s agency; and (3) Steve
Nutter, as branch manager. Defendant’s Statement of Material
Facts ¶ 8, ECF No. 28 [hereinafter “Def.’s SMF”]. This
assignment was “particularly burdensome because it would require
the employee to drive an hour and a half to the port at odd
hours of the night because of the uncertain timing” of the
2

ships’ landings. Id. ¶ 9. Some time prior to Plaintiff’s
accident, Plaintiff and some of the other employees discussed
the possibility of one of them transferring to Baltimore and
operating primarily out of that port--but their families,
homeownership, and the fact that Defendant would not fund
relocation made that prospect unappealing to the employees. Id.
¶ 10; Pl.’s SMF ¶ 10.
On or about September 9, 2012, Plaintiff was injured
in the course of his employment, sustaining “crushing injuries
to his left foot which resulted in the amputation of all five
toes and a portion of the foot itself.” Compl. ¶ 8. The injury
occurred when the ramp on one of the ships Plaintiff was
servicing fell on his foot as he was trying to hand off a box to
a crew member on the ship. Def.’s SMF ¶ 12. Plaintiff was
immediately placed on medical leave and began receiving workers’
compensation benefits on September 10, 2012. Compl. ¶ 9. On
October 17, 2012, Plaintiff was informed that his medical leave
would expire on November 13, 2012. Def.’s SMF ¶ 15. As of
November 13, 2012, Plaintiff was not cleared to return to work
by his doctor, nor did he know when he would be cleared to
return to his position. Id. ¶ 16.
Plaintiff avers that, pursuant to Defendant’s workers’
compensation program, he was entitled to be retained as an

3

employee on an extended leave of absence until one of the
following events took place:


He was released by his doctor for full or partial duty;



It became a business necessity to replace him;



The company received satisfactory medical evidence that
he would be unable to return to work; or



He resigned or actually or constructively informed the
company that he did not intend to return.

Compl. ¶ 11. On November 16, 2012, Plaintiff received a letter
from Wilhelmsen indicating that his position had been eliminated
due to business necessity. Pl.’s SMF ¶ 17. Defendant asserts
that it eliminated Plaintiff’s position so that it could afford
to hire a ship’s agent who could better service the Baltimore
area and, among other things, relieve the strain placed on the
understaffed Folcroft Facility while Plaintiff was out on
medical leave. Def.’s SMF 18; Def.’s Mem. Law Ex. E, Nguyen Dep.
80:12-82:24. Although the decision to hire a new employee in
Baltimore was not made until after Plaintiff’s termination,
discussions of eliminating Plaintiff’s position and creating a
new one in Baltimore occurred before his termination. Pl.’s SMF
18; Pl.’s Mem. Law Ex. G., Casenza Dep. 39:11-40:11, 43:7-45:6.
At no time during his employment with Defendant did
Plaintiff ever specifically request an accommodation related to
his disability--although Plaintiff avers that he did not believe
he was required to request a further leave of absence under the
4

policies provided in the handbook (i.e., none of the four abovementioned “events” had occurred). Def.’s SMF ¶ 19; Pl.’s SMF
¶ 19. Rather, Plaintiff’s first request for an accommodation was
sent by his attorneys on November 28, 2012, twelve days after
his termination. Pl.’s SMF ¶ 20. Specifically, Plaintiff
requested an eight-week extension of his medical leave and a
conference with a Wilhelmsen representative to discuss any
further accommodations that he might need. Id. ¶ 21. On December
11, 2012, Plaintiff sent a second letter requesting an
accommodation, and Defendant denied both requests on December
14, 2012. Compl. ¶¶ 14-15.
As of November 27, 2012, Plaintiff’s treating
physician, Dr. Millili, had not cleared him to return to work.
Def.’s SMF ¶ 22. In fact, Plaintiff was not cleared to begin
physical therapy until February 12, 2013. Id. ¶ 23. It was not
until March 20, 2013, that Plaintiff was found able to return to
work. Id. ¶ 24. Nonetheless, Plaintiff testified on May 7, 2013,
that, as of that date, he was not physically able to return to
work in his full capacity:
Q: Sitting here today, do you believe that you’re
physically able to go back to work as a boarding agent
for Wilhelmsen?
A: Not in full capacity, no.
Q: What do you think you would not be able to do?
A: Well, it’s a lot of walking. These ships, from the
time you walk--park that car, walk through the ship,
5

up to the elevator, it’s a lot of walking. I don’t
believe I’d be able to do that. I don’t think I can
climb pilot ladders or gangways the way I used to. I
mean, you really need your balance, and I’m really not
comfortable with doing that. I would be perfectly fine
as an in-house operation guy, and that would be great
if there was a position to go back to.
Q: So, what part of your job as a boarding agent
causes you concern with regard to your current ability
to do the job?
A: Just the physical requirements. . . . I’m not
comfortable walking more than maybe twenty minutes,
I’m not comfortable climbing at all. . . . [a] lot of
times you’re carrying boxes and that extra weight is
hard on the foot. . . . I physically am unable to
climb a pilot ladder.
Def.’s Mem. Law Ex. B, Aspen Dep. 163:2-164:17.

II.

PROCEDURAL HISTORY
On January 14, 2013, Plaintiff filed a discrimination

charge with the Equal Employment Opportunity Commission (“EEOC”),
and was issued a “right to sue” letter on September 3, 2013.
Compl. ¶¶ 16-17. On October 17, 2013, Plaintiff commenced this
action in federal court, asserting one count of employment
discrimination (Count I) and one count of failure to provide
reasonable accommodations (Count II), both brought under the
ADA. Id. ¶¶ 18-36. On July 9, 2014, Defendant filed a motion for
summary judgment. ECF No. 28. Plaintiff filed a response on July
24, 2014 (ECF No. 29), to which Defendant filed a reply2 on July
2

Technically, Plaintiff filed a motion for leave to
file a reply brief, which the Court will grant. ECF No. 30.
6

31, 2014 (ECF No. 30). The motion for summary judgment is now
ripe for disposition.

III. LEGAL STANDARD
Summary judgment is appropriate if there is no genuine
dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere existence’
of some disputed facts, but will be denied when there is a
genuine issue of material fact.” Am. Eagle Outfitters v. Lyle &
Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is
“material” if proof of its existence or nonexistence might
affect the outcome of the litigation; a dispute is “genuine” if
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The Court will view the facts in the light most
favorable to the nonmoving party. “After making all reasonable
inferences in the nonmoving party’s favor, there is a genuine
issue of material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d
Cir. 2010). While the moving party bears the initial burden of
showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the nonmoving party who
7

must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250.

IV.

DISCUSSION
Defendant’s motion for summary judgment asserts that

Plaintiff has failed to raise a genuine issue of material fact
for either of his claims. Each claim will be considered in turn.
A.

Count I--Disability Discrimination
Under the ADA, it is unlawful for an employer to

“discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). To make out a prima facie
case of disability discrimination under the ADA, a plaintiff
“must establish that she (1) has a ‘disability,’ (2) is a
‘qualified individual,’ and (3) has suffered an adverse
employment action because of that disability. Turner v. Hershey
Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006) (citations
omitted).
Once a plaintiff has made out a prima facie case of
discrimination, the “burden of production shifts to the
defendant to offer evidence of a legitimate, nondiscriminatory
reason for the action.” Connors v. Chrysler Fin. Corp., 160 F.3d
8

971, 974 n.2 (3d Cir. 1998) (referring to the framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
If the defendant states such a reason, then the plaintiff must
show, by a preponderance of the evidence, that the defendant’s
explanation is actually a pretext for discrimination. Anderson v.
Wachovia Mortg. Corp., 621 F.3d 261, 271 (3d Cir. 2010). It is
also important to note that throughout this burden-shifting
process, “the ultimate burden of proving intentional
discrimination always rests with the plaintiff.” Id. (quoting
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)) (internal
quotation marks omitted).
To establish that an employer’s rationale is a pretext
for discrimination, a plaintiff must provide sufficient evidence
“from which a factfinder could reasonably either (1) disbelieve
the employer’s articulated legitimate reasons; or (2) believe
than an invidious discriminatory reason was more likely than not
a motivating or determinative cause of the employer’s action.”
Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013)
(quoting Fuentes, 32 F.3d at 764).
1.

Prima Facie Case

With regard to the first prong of the prima facie
inquiry, Defendant does not contest that Plaintiff has a
disability; as to the third prong, Defendant does not dispute

9

that Plaintiff suffered an adverse employment action because of
that disability.3 Instead, Defendant asserts that Plaintiff
cannot establish a prima facie claim of discrimination because
he was not a “qualified individual” under the ADA.
The ADA defines a “qualified individual” as one “who,
with or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8). This inquiry
can be divided into two parts: “(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, 440
F.3d at 611. “Reasonable accommodations” are “[m]odifications or
adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is
customarily performed, that enable an individual with a
disability who is qualified to perform the essential functions
of that position.” 29 C.F.R. § 1630.2(o)(1)(ii).
Defendant does not dispute that Plaintiff possessed
the “requisite skill, experience, education and other job3

Although Defendant does not focus on this third prong
of the inquiry, Defendant does assert that it had a legitimate,
nondiscriminatory rationale for Plaintiff’s termination--as will
be further explored below.
10

related requirements of the position.” Nevertheless, Defendant
argues that Plaintiff was not a “qualified individual,” for two
reasons: (1) Plaintiff was not able to come in to work at all
for an essentially indefinite time; and (2) even had Plaintiff
returned to work, he still would have been physically incapable
of performing essential functions of his position, with or
without accommodation. The Court will address each point in turn.
a.

Plaintiff’s Request for Leave

Defendant alleges that after his accident and at the
time of his termination, Plaintiff was unable to perform the
essential functions of his job with or without a reasonable
accommodation because Plaintiff was unable to return to work for
essentially an indefinite period of time. Plaintiff, however,
asserts that “a request for a leave of absence may be a
reasonable accommodation,” and contends that he did not ask for
an indefinite period of leave. Pl.’s Resp. 4. A critical
threshold issue before the Court is, therefore, whether
Plaintiff’s request for leave constituted a finite request for a
reasonable accommodation, or whether it was a request for an
unreasonably indefinite period of leave.
At the time of Plaintiff’s termination, his doctor had
not released him to return to work. See Def.’s SMF ¶ 22. Because
Plaintiff could not return to work, Defendant reasons, Plaintiff

11

could not perform the essential functions of his position. In
support, Defendant cites Tumbler v. American Trading &
Production Corp., which stated that “attendance is a
prerequisite to job qualification under the ADA. No. 96-8566,
1997 WL 230819, at *2 (E.D. Pa. May 1, 1997). If a plaintiff
cannot attend work, he cannot perform the essential functions of
his employment.” In Tumbler, an employee suffering from major
depression had been on a leave of absence for ten months, and
then failed to follow the employer’s policies with respect to
requesting an extension to the leave of absence. Id. at *1-2.
Importantly in Tumbler, however, there was no evidence that the
employee’s requested leave of absence would be for a finite
period of time. Id.
Cases like Tumbler indicate that “an indefinite and
open-ended” leave of absence “does not constitute a reasonable
accommodation,” Fogleman v. Greater Hazleton Health Alliance,
122 F. App’x 581, 586 (3d Cir. 2004). However, the Third Circuit
has suggested that, in some circumstances, a finite period of
medical leave may represent a reasonable accommodation, if the
leave “would enable the employee to perform his essential job
functions in the near future.” Conoshenti v. Public Serv. Elec.
& Gas Co., 364 F.3d 135, 151 (3d Cir. 2004) (emphasis added);
see also id. (noting that federal courts “have permitted a leave
of absence as a reasonable accommodation under the ADA”); Walton
12

v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 671 (3d Cir.
1999) (stating that “unpaid leave supplementing regular sick and
personal days might . . . represent a reasonable accommodation”
in some cases).
Based on that reasoning, courts in this circuit have
found plaintiffs to be “qualified” within the meaning of the ADA
when the requested accommodation is a finite period of unpaid
medical leave. See Bernhard v. Brown & Brown of Lehigh Valley,
Inc., 720 F. Supp. 2d 694, 701 (E.D. Pa. 2010) (“It would be
entirely against the import of the ADA if [the plaintiff] were
not considered qualified because he was not able to perform his
essential job functions during his leave, as leave itself was
the accommodation requested by [the plaintiff].”); Gibson v.
Lafayette Manor, Inc., No. 05-1082, 2007 WL 951473, at *7 (E.D.
Pa. Mar. 27, 2007) (“[T]he fact that [the plaintiff] could not
return to work in any capacity at the expiration of her [Family
and Medical Leave Act (“FMLA”)] leave is not dispositive of
whether she is a ‘qualified individual,’” because additional
leave time “is a form of reasonable accommodation.”).
Leaving aside issues of timeliness for the moment,
Plaintiff submitted a request for an eight-week extension of his
medical leave on November 28, 2012. Defendant reasons that
because Plaintiff did not know, at that point, if or when he
would be medically cleared to return to work, this eight-week
13

request was essentially a request for indefinite leave. An
examination of what was actually communicated between Plaintiff
and Defendant’s management, however, reflects otherwise.
An email from Paige Nguyen--an employee involved in
the decision to terminate Plaintiff--to her superior Steve
Casenza and to Colleen Martin is particularly revealing.
Referring to Plaintiff’s condition as of November 13, 2012,
Nguyen wrote “[b]ased on below, John has not been released to
work. Reassessment in 2 weeks. Possible return with restrictions
after wound closure (about 2 weeks) but this is uncertain.”
Pl.’s Mem. Law Ex. E, Nguyen Email. Below this message is the
report of Plaintiff’s treatment referenced in Nguyen’s
statement--a passage indicating that Dr. Millili was considering
Plaintiff’s release back to work, but instead elected to delay
his release out of concern with him returning to work with an
open wound. Id. Dr. Millili determined to address the
possibility of work release again in the follow-up appointment
that was scheduled for November 27, 2012. Id.
From these emails--which were nested within the email
thread that ended with the November 15, 2012, message that
suggested terminating Plaintiff--it is evident that Defendant
had a notion that Plaintiff’s leave would not be indefinite. For
all Nguyen and Casenza knew at that point, if Plaintiff’s wound
(which had been inflicted months earlier) finished healing well
14

and quickly, there was a significant possibility that Dr.
Millili would clear Plaintiff to return to work within a few
weeks--albeit with restrictions. Moreover, when Plaintiff did
submit a request for an extension of medical leave, it was for a
period of eight weeks. These circumstances simply do not bespeak
indefinite leave.
Defendant disregards these indications of the finite
nature of Plaintiff’s request for leave, and instead points out
that Plaintiff still was not cleared to return to work at his
November 27, 2012, appointment--and that he did not receive
clearance to work until the spring of 2013. According to
Defendant, this shows that Plaintiff’s request was for
indefinite leave, since neither Plaintiff nor Defendant knew how
long it would take for Plaintiff to recover and complete
recuperative physical therapy. These ex post arguments, however,
are immaterial and unavailing.
The crucial question here is not how long it actually
took Plaintiff to recover, but what Defendant knew and expected
of Plaintiff’s condition ex ante--at the time of the decision to
terminate him without accommodation. As this Court stated
previously, “[w]hat is relevant for this analysis is whether
Plaintiff was a qualified individual within the meaning of the
ADA at the time of his termination.” Jacoby v. Bethlehem
Suburban Motor Sales, 820 F. Supp. 2d 609, 621-22 (E.D. Pa.
15

2011) (Robreno, J.) (emphasis added). At that time, Defendant
had reason to believe that Plaintiff might be cleared to return
to work within a matter of weeks. This means that a reasonable
accommodation may have been provided Plaintiff, in the form of a
finite extension of medical leave. Precisely how Plaintiff’s
recovery actually played out is simply irrelevant.
b.

Essential Functions of Plaintiff’s Position

Given that a finite period of medical leave may have
been a viable reasonable accommodation, it follows that there is
a reasonable likelihood that, with such an extension, Plaintiff
would have been able to return and performed the essential
function of attending his work. This does not necessarily mean,
however, that merely by coming to work, Plaintiff would be
capable of performing all of the essential functions of his
position as ship’s agent.
Defendant argues that Plaintiff was incapable of
performing the essential physical functions of his position,
such as traveling to ports of call, walking from terminals to
ships, ascending gangways and ladders, and carrying heavy bags
and boxes onto ships. According to Defendant, even if Plaintiff
returned to work within a matter of weeks, he had no reasonable
expectation of when--if ever--he would be able to perform those
actions. Defendant concludes that because Plaintiff was unable

16

to perform these duties with or without accommodation at the
time of his termination, he was not a “qualified individual.”
Essential functions of a position are “fundamental job
duties,” as opposed to “marginal functions.” 29 C.F.R.
§ 1630.2(n)(1); see also Supinski v. United Parcel Serv., Inc.,
413 F. App’x 536, 540 (3d Cir. 2011). A job function may be
considered essential for a number of reasons: because (1) “the
reason the position exists is to perform that function”;
(2) only a limited number of employees are available “among whom
the performance of that job function can be distributed”; or
(3) the function is “highly specialized so that the incumbent in
the position is hired for his or her expertise or ability to
perform the particular function.” 29 C.F.R. § 1630.2(n)(2); see
also Supinski, 413 F. App’x at 540. Although plaintiff must make
a prima facie showing that he is a qualified individual, “the
employer has the burden of showing a particular job function is
an essential function of the job.” Supinski, 413 F. App’x at 540
(citations omitted).
Here, Defendant offers mostly blanket assertions that
Plaintiff could not perform the essential functions of the
position, and fails to identify precisely which functions it
alleges are essential or why. Defendant merely infers that
walking for long distances and climbing ladders are “essential
functions” of Plaintiff’s job. Defendant submits a Functional
17

Description for the position of manager, ship’s agency, Def.’s
Mem. Law Ex. D, but Plaintiff disputes that this job description
was ever in effect, Pl.’s Mem. Law Ex. B, Aspen Dep. 75:13-76:6.
Plaintiff asserts that, with reasonable accommodation
for his physical limitations, he would have been able to perform
the essential functions of his position (again, once he had
returned from his finite period of extended medical leave).
Defendant has not shown that physical activities such as walking
long distances and climbing ladders--which made up perhaps
twenty-five percent of his work activities, see Compl. ¶ 7--are
essential functions. As a ship’s agent, Plaintiff coordinated
with ship captains and boarded ships. Some vessels, however,
allowed ship’s agents to drive directly to shipside, which would
prevent an employee from having to walk great distances. See
Pl.’s SMF ¶ 6. Moreover, Plaintiff asserts that not all vessels
are equipped with ladders, and that he would not have these
issues on smaller vessels. See id. ¶ 27. Thus, Plaintiff’s
limitations would not necessarily have affected his duties with
all of Defendant’s clients in the same way.
Defendant’s prior accommodations to Plaintiff are
particularly significant. In November 2006, Plaintiff had his
license suspended for six or seven months and, accordingly,
Defendant assigned him to inside operational duties and limited
his access to boarding vessels. See id. ¶ 33. Even with these
18

restrictions, Nguyen still testified that his essential
functions remained the same. Pl.’s Mem. Law Ex. C, Nguyen Dep.
99:9-10. These past accommodations to Plaintiff’s prior physical
limitations indicate that Defendant could have reasonably
offered similar accommodations following Plaintiff’s accident.
Ultimately, taking all factual inferences in the light most
favorable to the Plaintiff, the Court finds that Plaintiff has
carried his burden of showing that, with reasonable
accommodation, he could have performed the essential functions
of his position.
* * *
With regard to Plaintiff’s prima facie showing,
Defendant has only specifically contested whether or not
Plaintiff was a “qualified individual” at the time of his
termination.4 Because Plaintiff has sufficiently shown that he
was a “qualified individual,” the Court finds that Plaintiff has
satisfied his prima facie burden as to his discrimination claim.
2.

Legitimate, Nondiscriminatory Rationale

Having made out a prima facie case of discrimination,
Plaintiff may rely on the McDonnell Douglas burden-shifting
paradigm to require Defendant to provide a legitimate,
nondiscriminatory reason for Plaintiff’s termination. According
4

Thus far in the proceedings, Defendant has not
disputed the other two elements.
19

to Defendant, “the undisputed, legitimate, proffered business
reasons for terminating Mr. Aspen’s employment were based on
Defendant’s need to better service a major client,” given that
“one of Defendant’s major customers utilizes Baltimore,
Maryland, as its port of call, [and] the costs and employee
burdens of supporting that client were dramatically decreased by
placing a Ship[’]s Agent in Baltimore” Def.’s Mem. Law 10. Given
Defendant’s light burden, this rationale passes muster, and it
falls to Plaintiff to show that Defendant’s proffered reason is
pretextual.
3.

Evidence of Pretext

Plaintiff contends that the rosy rationale painted by
Defendant is merely a flaking veneer that fails to obscure the
discriminatory animus beneath. In support, Plaintiff points to
an email from Colleen Martin to Nguyen and Casenza that is,
again, revealing. The text reads as follows:
My suggestion is to discuss with our lawyer.
FMLA has been exhausted and we have followed our
policy in the past that employees that must remain
away for more than [sic] period allowed for medical or
disability leave will be terminated.
John has not been released yet and even though it is
anticipated he will eventually be able to return it is
not definite and there will be restrictions.
Possibly we need to advise him that we will be
terminating him, once he is able to return and there
is an open position that he is qualified for then he
is welcome to apply?
20

However if this situation follows [sic] under ADA
because of his disability then do we need to go
through accommodation process?
We need to advise John one way or the other.
Pl.’s Mem. Law Ex. E, Martin Email. This email was sent the day
before Plaintiff was terminated. Nowhere does it mention
anything related to Defendant’s claim of business necessity, nor
does it refer to the need to better service Baltimore.
Regardless of Defendant’s business needs, this message seems to
indicate that Plaintiff would have suffered the very same fate
even if Defendant did not have any clients to worry about in
Baltimore. It is suspect that Defendant’s management would
ponder the issues raised by Martin if it had already decided to
replace Plaintiff for reasons of business necessity. Moreover,
Casenza admitted that the decision to locate a ship’s agent in
Baltimore was not made until after Plaintiff’s FMLA leave
expired. Id. Ex. G, Casenza Dep. 39:11-40:11.
That is not to say that those business considerations
did not enter into Defendant’s decision-making process. But this
is certainly sufficient evidence “from which a factfinder could
reasonably either (1) disbelieve the employer’s articulated
legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.” Burton, 707 F.3d
at 427 (quoting Fuentes, 32 F.3d at 764).
21

Because Plaintiff has offered sufficient evidence
showing that Defendant’s rationale for his termination was
pretextual, the Court will deny Defendant’s motion for summary
judgment as to Count I.
B.

Count II--Failure to Accommodate
A plaintiff may also seek recovery under the ADA with

a failure-to-accommodate claim, which provides a remedy when an
employer fails to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,”
unless the employer “can demonstrate that the accommodation
would impose an undue hardship on the operation of the business.”
42 U.S.C. § 12112(b)(5)(A).
The regulations accompanying the ADA provide that, to
determine the appropriate accommodation, “it may be necessary
for the [employer] to initiate an informal, interactive process
with the [employee] in need of the accommodation” to “identify
the precise limitations resulting from the disability and
potential reasonable accommodations that could overcome those
limitations.” 29 C.F.R. § 1630.2(o)(3). Based on that regulation
and on the EEOC’s interpretive guidelines, the Third Circuit has
concluded that “both parties have a duty to assist in the search
for appropriate reasonable accommodation and to act in good

22

faith.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d
Cir. 1999) (quoting Mengine v. Runyon, 114 F.3d 415, 419-20 (3d
Cir. 1997)) (internal quotation marks omitted).
In Taylor, the Third Circuit discussed the nature of
the employee’s and the employer’s duties prior to and during the
“interactive process” of identifying a reasonable accommodation.
Id. at 312-13. With regard to the employee’s duties, the Court
concluded that the employee has a duty to put the employer on
notice that the employee “wants assistance for his or her
disability.” Id. at 313. The Court explained that
[w]hat matters under the ADA are not formalisms about
the manner of the request, but whether the employee or
a representative for the employee provides the
employer with enough information that, under the
circumstances, the employer can be fairly said to know
of both the disability and desire for an accommodation.
Id. The court further emphasized that an employee need not have
“specifically invoked the ADA or used the words ‘reasonable
accommodation’ when he requested accommodations.” Id. at 314.
If this sufficient notice requirement is satisfied,
then the interactive process requirement is triggered, and the
burden is placed on the employer “to request additional
information that the employer believes it needs” to identify a
reasonable accommodation or to establish that no accommodation
is possible. Id. at 315. Of this process, the Taylor Court
stated that

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[t]he interactive process does not dictate that any
particular concession must be made by the employer;
nor does the process remove the employee’s burden of
showing that a particular accommodation rejected by
the employer would have made the employee qualified to
perform the job’s essential functions. All the
interactive process requires is that employers make a
good-faith effort to seek accommodations.
Id. at 317 (citation omitted).
Defendant says that Plaintiff has not stated a
failure-to-accommodate claim because he did not request an
accommodation until after his employment was terminated. Def.’s
Mem. Law 6. Since the relevant time for this inquiry is the time
of termination, see Jacoby, 820 F. Supp. 2d at 621-22, and since
Plaintiff failed to request a reasonable accommodation until
twelve days after he was fired, Defendant argues that it was
under no obligation to provide Plaintiff with a reasonable
accommodation. Even if Plaintiff’s belated request is
disregarded, however, that does not necessarily let Defendant
off the hook.
The Third Circuit further elaborated the employernotice requirement in Conneen v. MBNA America Bank, N.A.:
The law does not require any formal mechanism or
“magic words,” to notify an employer such as MBNA that
an employee needs an accommodation. Taylor, 184 F.3d
at 313. Moreover, as the court noted in Bultemeyer v.
Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir.
1996), circumstances will sometimes require “[t]he
employer . . . to meet the employee half-way, and if
it appears that the employee may need an accommodation
but doesn’t know how to ask for it, the employer
should do what it can to help.” However, either by
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direct communication or other appropriate means, the
employee “must make clear that the [he/she] wants
assistance for his or her disability.” Jones v. United
Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000). The
employer must have enough information to know of “both
the disability and desire for an accommodation,”
Taylor, 184 F.3d at 313, or circumstances must at
least be sufficient to cause a reasonable employer to
make appropriate inquiries about the possible need for
an accommodation.
334 F.3d 318, 332 (3d Cir. 2003) (emphasis added). This guidance
makes it clear that the inquiry does not stop with the fact that
Plaintiff did not make an explicit request for an accommodation
until twelve days after his termination. Rather, the issue comes
down to whether (1) Defendant knew of Plaintiff’s disability and
desire for an accommodation, or whether (2) circumstances were
sufficient to cause a reasonable employer to make appropriate
inquiries about the possible need for an accommodation.
It appears that Defendant was aware of Plaintiff’s
disabled condition. In multiple emails prior to his termination,
Plaintiff expressed to Defendant that he had “every intention of
returning to work.” Pl.’s Mem. Law Ex. D. And even if, prior to
his termination, Plaintiff never explicitly stated that he
desired accommodation in the form of extended medical leave, at
this stage in the proceedings and in the light most favorable to
Plaintiff, there is a genuine dispute of material fact as to
whether the desire to remain employed which Plaintiff conveyed
to Defendant included an implicit request for some form of

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extended leave while he finished recovering. In fact, in an
email dated October 22, 2012, Plaintiff asked if he could
“appeal and see if [Defendant had] any discretion” in extending
the period of his FMLA leave. Id. Accordingly, even if Plaintiff
did not make Defendant aware of his desire for an accommodation,
the Court finds that Plaintiff has raised a genuine issue of
material fact regarding whether the circumstances were
“sufficient to cause a reasonable employer to make appropriate
inquiries about the possible need for an accommodation.”
Conneen, 334 F.3d at 332.
Because the facts alleged support the inference that
Defendant had notice of Plaintiff’s desire and/or need for
accommodation, Defendant’s duty to participate in the
interactive process of identifying a reasonable accommodation
was triggered. Defendant’s alleged failure to initiate or
participate in that interactive process could therefore support
Plaintiff’s failure-to-accommodate claim. Thus, the Court will
deny Defendant’s motion for summary judgment as to Count II.

V.

CONCLUSION
For the foregoing reasons, the Court will deny the

motion for summary judgment. An appropriate order follows.

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