REYER v. SAINT FRANCIS COUNTRY HOUSE et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 3/20/17. 3/20/17 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SAINT FRANCIS COUNTRY HOUSE, et al., :
March 20, 2017
Jason Reyer brings this employment discrimination action against Saint Francis Country
House, 1412 Lansdowne Operating, LLC and the Archdiocese of Philadelphia, his former
employers, for violations of the Family and Medical Leave Act (“FMLA”) and the Americans
with Disabilities Act (“ADA”).
According to Reyer who suffers from chronic obstructive pulmonary disease (“COPD”),
emphysema, other respiratory conditions and related complications, Defendants failed to
accommodate his disability, discriminated against him on the basis of his disability, interfered
with his FMLA rights and ultimately, terminated his employment because he requested
accommodations and took FMLA leave.
Reyer brings interference and retaliation claims under the FMLA as well as
discrimination, failure to accommodate and retaliation claims under the ADA. Defendants have
moved for summary judgment on all claims. As many genuine issues of material fact exist,
Defendants’ motion will be denied.
Saint Francis Country House is a nursing care facility owned and operated by the
Archdiocese at all times prior to Reyer’s termination. The Archdiocese sold Saint Francis
Country House to Center Management Group, LLC in November of 2014. As of the date of the
sale, all existing employees were terminated. (Defs.’ Statement of Undisputed Material Facts
¶¶ 1, 4, 8.)
A. Reyer’s Employment at St. Francis
St. Francis had three separate grades of Maintenance Workers: I, II, and III. Jason Reyer
was hired by Saint Francis Country House in October 2004 as a Maintenance Worker II. On
August 25, 2005, Reyer was promoted to a Maintenance Worker III position. Throughout his
employment Reyer was supervised by a Plant Operations Manager, John Hedges. (Id. at ¶¶ 15,
Under a heading titled “Purpose of Your Job Position,” the description for the
Maintenance Worker II and III position states:
The primary purpose of your job position is to perform the duties
necessary to keep the structure of the facility in good repair. These
duties include the repair and maintenance of machinery and
medical equipment in accordance with diagrams, schedules,
operation manuals and manufacturer’s specifications, using power
tools and precision measuring and testing instruments.
The job description also identified certain “physical and sensory requirements,” including
(i) “must be able to move intermittently throughout the work day;” (ii) “must be in good general
health and demonstrate emotional stability;” and (iii) “must be able to lift in excess of 50 pounds,
push, pull and move residents, equipment, supplies, etc., up to 200 pounds.” (Defs.’ Mot., Ex.
The facts set forth in this section are undisputed unless otherwise indicated.
10.) Reyer signed and returned a form acknowledging that he received the job description for the
Maintenance Worker position. (Id.)
When asked about the job duties of Maintenance Worker at St. Francis, Hedges explained
that they “would oversee their units or the building and handle any issues that might arise,
whether it be moving beds, unclogging sinks, toilets, light bulbs being out, any emergency
repairs, walls needed repairing, if there was project work, fixing wheelchairs, painting. This list
could possibly go on forever.” Hedges also testified that lifting items in excess of fifty pounds
was a “true assessment” of the Maintenance Worker position. (Defs.’ Statement of Undisputed
Material Facts ¶ 31; Defs.’ Mot. Ex. 5, Hedges Dep., 30:24 – 31:11, 83:17-83:23.)
If a Maintenance Worker was unable to come to work on a particular day, that work
would be divided between the other maintenance workers on site that day. During the relevant
time period, four or five Maintenance Workers were employed on-site. (Defs.’ Statement of
Undisputed Material Facts ¶¶ 24, 33.)
B. St. Francis’ Leave Policies and Notice of FMLA Rights
St. Francis’ employee handbook states that “[u]pon request, an eligible employee may
receive a maximum of twelve (12) weeks of family and medical leave in any twelve (12) month
period.” It further explains that if FMLA leave “was taken because of the employee’s own
illness, documentation from the employee’s physician that the employee is able to return to work
is required.” It also states that “for the purpose of determining eligibility for family and medical
leave, a ‘twelve (12) month period’ refers to the twelve months immediately preceding the start
of the request leave. In no case will an employee receive family and medical leave for a period in
excess of twelve (12) consecutive weeks.” (Defs.’ Mot., Ex. 1.)
St. Francis’ employee handbook also informs employees that they may take up to a six
month “medical” leave of absence. The handbook specifies that if a period of leave is “covered
by the family and medical leave policy” then the six month leave of absence will “apply only to
those periods beyond the twelve (12) weeks of the family leave policy.” (Id.) Reyer signed a
form acknowledging receipt of the employee handbook on October 6, 2004. (Defs.’ Statement of
Undisputed Material Facts ¶ 17.)
Upon his hire, Reyer also received a notification regarding workplace discrimination. In
2009 and 2010, Reyer received a form setting forth “Employee Rights and Responsibilities under
the Family and Medical Leave Act.”2 (Defs.’ Statement of Undisputed Material Facts ¶ 16;
Defs.’ Mot., Ex. 9.)
C. Reyer’s FMLA Leave
In 2011, Reyer began treatment for chronic obstructive pulmonary disease (“COPD”) and
emphysema with Dr. Thomas Prestel, a pulmonologist. Shortly thereafter, Reyer notified Saint
Francis that he would be taking intermittent FMLA leave and provided a certification from his
primary care physician. His request was approved and he took intermittent leave during the 2011
calendar year. (Defs.’ Statement of Undisputed Material Facts ¶¶ 36-37, 39; Defs.’ Mot., Exs.
In April of 2012, Reyer requested and received permission to take FMLA leave to care
for his ailing father. In December of 2012, Reyer retroactively requested FMLA leave for a week
In their “Statement of Undisputed Material Facts,” Defendants state that Reyer received
“FMLA documentation throughout his employment.” (Defs.’ Statement of Undisputed Material
Facts ¶ 16) (emphasis added). In support of this assertion, Defendants cite to documents that
demonstrate Reyer received two notices of his rights under the FMLA dated February 2, 2009
and February 2, 2010. As Defendants do not cite to any evidence demonstrating that Reyer
received “FMLA documentation” during the nearly four year time period between February 2,
2010 and his termination in December of 2013, Defendants’ statement that he received FMLA
documentation throughout his employment is unsupported by the record.
long absence due to the fact that he had pneumonia. In support of his request, he submitted a
certification from his primary care physician. His request was approved. (Defs.’ Statement of
Undisputed Material Facts ¶¶ 41-44 ; Defs.’ Mot., Ex. 17, 18.)
In January of 2013, Reyer submitted a third FMLA certification from a physician in
support of his request for intermittent FMLA leave to deal with his COPD and emphysema. This
request was also approved. (Defs.’ Statement of Undisputed Material Facts ¶¶ 47, 49; Defs.’
Mot., Ex. 19.)
Unrelated to his COPD and emphysema, Reyer was absent from work for twenty one
days in April and May of 2013 in connection with a hernia repair operation. Reyer did not submit
FMLA paperwork for this absence and instead St. Francis allowed Reyer to take “personal time”
and return to work after he had recovered. (Defs.’ Statement of Undisputed Material Facts ¶¶ 5051.)
On August 13, 2013, Reyer emailed Cindy Kersey, the Director of Human Resources at
St. Francis, asking “how many [FMLA days he had] already used and how many days are
remaining.” Kersey did not respond to this email until shortly after his termination. (Pl.’s Resp.,
Exs. J; Ex. A, Reyer Dep. 57:4-7.)
Reyer was then out of work again from August 15, 2013 to August 30, 2013 to undergo a
bronchoscopy and further evaluation of his lungs. He returned to work for five days but then
again was absent from September 20, 2013 to September, 25, 2013 in order to undergo a second
bronchoscopy. (Defs.’ Statement of Undisputed Material Facts ¶¶ 53, 55-56.)
Reyer returned to work for several days but then requested and received approval for an
“extended” leave beginning on September 30, 2013. (Defs.’ Statement of Undisputed Material
Facts ¶¶ 56-57; Pl.’s Resp., Ex. B, Kersey Dep. 41:12-42:5.)
Following a conversation with Kersey, Reyer completed the “employee portion” of longterm disability paperwork. In that paperwork which he dated October 1, 2013, Reyer stated that
September 28, 2013 was the date on which he became “totally disabled.” On November 1, 2013,
Dr. Prestel completed the “attending physician portion” of the paperwork and indicated that
Reyer was unable to climb, balance, stoop, kneel, crouch or crawl. Under a space for “extent of
disability,” Dr. Prestel also wrote “last day able to work 9/29/13.” Although Reyer returned the
completed paperwork to Kersey, Reyer was “somewhat reluctant” about applying for disability
and instructed Kersey not to submit his claim. As such, Reyer’s completed application was not
submitted. (Defs.’ Statement of Undisputed Material Facts ¶¶ 61-66, 68, 71; Defs.’ Mot. Ex. 29.)
In September or October, Reyer developed a significant lung infection. On November 11,
2013, Dr. Michael Kimzey, an infectious disease specialist, inserted a peripherally inserted
central catheter (“PICC”) in Reyer’s arm to aid in the delivery of antibiotics. (Defs.’ Statement
of Undisputed Material Facts ¶¶ 74, 76.)
D. Information Regarding Reyer’s Ability to Return to Work
In a note dated November 11, 2013, Dr. Kimzey stated:
This letter is to confirm that Jason Reyer may return to work while
undergoing treatment. His only restriction is that he may not lift
anything over 5 pounds because of the PICC line that is in his arm
so that he may self-administer his antibiotic for the next 60 days.
(Pl.’s Resp., Ex. K.) Reyer testified that he believed he provided this note to Kersey
“immediately” after he received it. (Pl.’s Resp. Ex. A, Reyer Dep. 132:5-12.)
In a subsequent note dated November 25, 2013, Dr. Kimzey stated Reyer “may return to
work on December 9th, 2013. He is restricted to not lifting more than 5 pounds because of the
PICC line in his arm.” (Defs.’ Mot. Exs. 34, 35.) Reyer faxed this note to Kersey on December 3,
2013. (Defs.’ Statement of Undisputed Material Facts ¶ 81; Defs. Mot. Exs. 34-35).3
On December 4, 2013, Reyer emailed Kersey to confirm receipt of his “‘Return to work
Note’ from doctor, which I faxed to you on Tuesday December 3rd.” In the email, he further
wrote “[t]he note states that I am able to return to work on Monday December 9th with certain
medical restrictions, as listed. I will need a response prior to Monday, December 9th, to know
whether to come into work on that date.” On December 9, 2013, Kersey responded by way of
email that she would speak with Hedges later that week about the doctor’s note. (Pl.’s Resp., Ex.
In addition to sending the November 11th and 25th notes from Dr. Kimzey and the above
referenced email, Reyer testified that he had multiple conversations with Kersey and others at St.
Francis about when he would return to work. Reyer testified that he had discussions with Kersey
and Hedges about how long his PICC line would be in. (Pl.’s Resp., Ex. A, Reyer Dep. 106:21107:17.) Reyer testified that, prior to his termination, he told Kersey that he would be able to
return to work on December 9, 2013 and that he would have the five-pound weight restriction
until the PICC line was removed sometime in January. (Id. at 134:2-7, 142:9-144:19.)4
Reyer testified that during these conversations, Defendants informed him that the notes
from Dr. Kimzey did not contain adequate information regarding his ability to return to work and
Some evidence in the record suggests that Reyer provided Kersey with the November 25, 2013
note on a separate occasion prior to the December 3, 2013 fax. The evidence, however, is
unclear. Regardless, this issue does not appear to be material and, as such, I need not resolve it.
For the sake of completeness, I also note that Kersey testified that she could not recall receiving
the November 11, 2013 note. (Pl.’s Resp., Ex. B, Kersey Dep. 821-22.)
Reyer’s testimony regarding what he told Kersey about his ability to return to work without the
lifting restriction is somewhat muddled. However, viewed in the light most favorable to Reyer,
his testimony establishes that, prior to his termination, he told Kersey that the PICC line would
be removed in January and, at that point, he could return to work without the five pound lifting
did not specify the date on which he could do so without restrictions. According to Reyer, he
obtained multiple notes from Dr. Kimzey in order to address these concerns. (Id. at 102:3-104:2,
105:19-106:5.) Reyer explained that, as a result of his ability to get follow-up appointments and
ongoing treatment concerns, the notes contained differing information regarding when he could
return to work. (Id. at 106:8-24.)
Kersey, Hedges and Thomas Chapman, the Nursing Home Administrator, could not
recall having a conversation with Reyer about when he could return to work without any
restrictions. According to Kersey and Hedges, Reyer provided them with conflicting information
about when he would return to work and that he continued to change his story. (Defs.’ Statement
of Undisputed Material Facts ¶¶ 79-81; Pl.’s Resp., Ex. B, Kersey Dep. 33:23-34:17, 82:20-83:2;
Ex. F, Chapman Dep. 29:24-30:3; Ex. C, Hedges Dep. 45:4-10:14.))
E. Five-Pound Lifting Restrictions
Kersey testified that she did not believe that she had discussed the five-pound lifting
restriction with Reyer. However, Kersey stated that she believed that she discussed the fivepound lifting restriction with Chapman and Hedges. In particular, Kersey claimed that she
discussed with Hedges what tasks a Maintenance Worker could complete with such a restriction.
(Pl.’s Resp., Ex. B, Kersey Dep. 47:21-8, 48:24-49:4; 50:23-51:11.)
Kersey testified that after her discussions with Chapman and Hedges and review of the
Maintenance Worker job description, “it didn’t seem that that was going to be a possibility for
him to be able to go back into that with any kind of a restriction just due to the nature of the work
that [maintenance employees] did.” (Id. at 48:4-48:19.) When asked if she was familiar with the
Maintenance Worker job duties, Kersey replied “I guess mostly per the actual job description. I
couldn’t tell you what his daily routine was and such.” (Id. at 19:7-12.)
Hedges, however, could not recall ever having a conversation with Kersey about the fivepound lifting restriction. (Pl.’s Resp., Ex. C, Hedges Dep. 50:1-18.) Hedges and Chapman both
testified that they never discussed the restriction with Reyer. (Id. at 50:15-18; Pl.’s Resp., Ex. F,
Hedges testified that if a Maintenance Worker was limited to lifting five pounds “there’s
a lot of things that, you know, maybe could be done but a lot of things can’t be done. It’s hard to
say what though, you know, depending on the circumstances.” (Pl.’s Resp., Ex. C, Hedges Dep.
80:9-23.) However, Hedges equivocated and stated “there’s a lot of things that, you know,
maybe could be done but a lot of things can’t be done. It’s hard to say what though, you know,
depending on the circumstances.” (Id. at 80:19-23; 86:16-22.) Chapman Administrator testified
that Maintenance Workers were required to lift more than five pounds “[e]very day, many times
during the day” (Defs.’ Mot., Ex. 2, Chapman Dep. 35:2-5.)
Contrary to Hedges and Chapman’s testimony, Reyer testified that he could have
performed the following Maintenance Worker tasks with the five-pound lifting restriction in
place: taking inventory of supplies and materials, sweeping floors, folding laundry, changing
batteries in chair and bed alarms, covering security guard shifts and testing faucets and toilets.
(Pl.’s Resp., Ex. A, Reyer Dep. 111:-10-113:17, 178:1-19.)
Reyer testified that after he bruised his ribs in 2010 he was subject to a no-lifting
restriction and that, during the pendency of that restriction, Reyer was permitted to fold laundry
for a “few days.” Reyer also testified that, following a bronchoscopy, he also had a “prior lifting
restriction” of twenty-five pounds between March and June of 2013. (Id. at 24:9-22, 112:7113:22.)
F. Reyer’s Termination
According to Reyer, on or about December 17, 2013, Kersey informed Reyer that St.
Francis did not have a position available that could accommodate the five-pound lifting
restriction. According to Reyer, Kersey then told him that his employment was being terminated.
Reyer testified that during this conversation he informed Kersey that the restriction would be in
effect for two more weeks. (Pl.’s Resp., Ex. A, Reyer Dep. 127:13-128:14.) Reyer’s termination
was effective December 23, 2013. (Defs.’ Mot., Ex. 36.)
When asked why Reyer’s employment was terminated, Kersey testified:
Well, he had used up all of his FML time, really way exceeded
that. We didn’t really have any definitive information as to when
he was coming back. The department had been without his help for
a long period of time. There was a lot of overtime. At the same
time they were – the facility was going through – I think that was
probably when we got word about the impending sale, so they
were trying to do a lot of different things with the building, work
got behind. It was several factors, but a lot of overtime, a lot of
money spent on overtime and there was not supposed to be any
money spent on overtime, so it became a real burden on the
Pl.’s Resp., Ex. B, Kersey Dep. 31:12-32:2)
Kersey further explained that “[b]asically, [Reyer] was terminated because he had
exceeded all of his [FMLA] time, we weren’t sure when he was coming back and we were in
kind of desperate need there.” According to Kersey, prior to terminating Reyer, St. Francis had
unsuccessfully attempted to hire a temporary maintenance employee. (Id. at 112:20-113:9; 37:312.)
When asked who made the decision to terminate Reyer’s employment, Kersey testified
that she, Chapman and Hedges together made the decision to terminate Reyer’s employment. (Id.
at 32:3-23.) Hedges, however, testified that he was not involved in the decision-making and even
stated that he was unaware of the reason for Reyer’s termination. (Pl.’s Resp., Ex. C, Hedges
G. Expiration of Reyer’s FMLA leave
Kersey was responsible for keeping track of employees’ use of FMLA leave and did so
by “rely[ing] on payroll.” She explained that the relevant “information would go from the
supervisor to the payroll department.” As noted above, Kersey testified that Reyer had “far
exceeded the amount of FML time that he was eligible for” by December 2013 but could not
remember the date on which Reyer’s FMLA leave actually expired. Kersey also asserted that she
was “sure at some point in time I did advise him that his time was either coming near or was
exceeding, but we did work with him.” Kersey testified that she could not recall whether she
provided Reyer with a designation notice in connection with the FMLA leave he took in 2013.
(Pl.’s Resp., Ex. B, Kersey Dep. 33:32; 37:17-:38, 42:6-22.)
Pursuant to St. Francis policy, Reyer first exhausted his accrued sick and vacation days
while out on FMLA leave. A printout of the payroll records indicate that Reyer was absent
approximately 169 days from January 1, 2013 to his termination on December 23, 2016. (Defs.’
Statement of Undisputed Material Facts ¶ 122; Defs.’ Mot., Ex. 25.) Defendants urge that these
records indicate that Reyer exhausted his 60 days of FMLA leave on or about August 22, 2013.5
(Defs.’ Statement of Undisputed Material Facts ¶ 125.)
In response, Reyer contends that the “only competent evidence provided by Defendants
was that Mr. Reyer’s FMLA leave expired on December 23, 2013.” (Pl.’s Resp. to Defs.’
Statement of Undisputed Material Facts ¶ 125.) In support of this assertion, Reyer points to the
Defendants explain that this calculation does not take into account the twenty-one days Reyer
took off in April and May 2013 related to his hernia operations because Reyer testified that those
days were “personal time” not FMLA leave.
testimony of Chapman wherein he states that it is his belief that Reyer’s FMLA leave expired on
December 23, 2013. When asked how he knew this, Chapman explained that he thought he saw
this information on “some documentation.” (Pl.’s Resp., Ex. F, Chapman Dep. 31:19-23.)6
Reyer explained that he did not have a clear understanding of how FMLA leave worked
which was why he “consistently kept in contact with HR.” Reyer further testified that he
incorrectly believed that he was entitled to ninety days of FMLA leave. Elaborating, he testified
that “[w]eekly I would go in person and ask for that information regarding what is my limit to
my FMLA. After going to [Kersey’s office] time after time, I left voicemails. When I didn’t get
responses to voicemails, I sent her emails. To this date I have received nothing.” According to
Reyer, he was first informed of the balance of FMLA time a “few weeks” before his termination.
(Pl.’s Resp., Ex. A, Reyer Dep. 56:11-59:6.)
H. Events Subsequent to Reyer’s Termination
A note from Dr. Kimzey dated December 23, 2010 and addressed “To Whom it may
concern” states that Reyer would not be subject to the five pound lifting restriction once his
antibiotic PICC line treatment was completed, “which is tentatively due to be January 16, 2016.”
(Pl.’s Resp., Ex. P.)
Reyer testified that he did not provide this note to St. Francis prior to his termination.
Reyer explained that he obtained the December 23, 2010 note to submit in connection with his
unemployment proceedings. A note in Dr. Kimzey’s records related to Reyer’s office visit on
Reyer contends that there is sufficient evidence in the record to dispute Defendants’ assertion
that his FMLA leave expired on August 22, 2013. In support, he emphasizes the fact that Kersey
could not remember the exact date on which his FMLA time expired. Additionally, Reyer urges
that a jury could find the timesheets inaccurate or incredible because they were created for
litigation. Beyond Chapman’s testimony, Reyer, however, does not cite to any evidence that calls
into question the accuracy of the timesheets., Although I am not entirely persuaded by Reyer’s
argument, for the purposes of this motions, there is sufficient evidence – although just barely so
– to create a genuine issue of material of fact as to the date on which Reyer exhausted his FMLA
December 23, 2013 states “Not back to work, but was in fact released from previous job. Needs
letter written for unemployment today.” (Defs.’ Statement of Undisputed Material Facts ¶¶ 110113.) Reyer’s PICC line was removed on January 10, 2014 following the completion of the
sixty-day course of antibiotics. (Id. at ¶ 77.)
On March 18, 2014, St. Francis hired Bruce Millar to replace Reyer. Millar dated his
employment application January 24, 2014 and stated that he could begin work “ASAP or
1/27/2014.” Millar was hired to do maintenance work three days a week and security work two
days a week. ((Pl.’s Resp., Exs. G, S; Ex. C, Hedges Dep. 58:11-17.)
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “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.” A dispute is “genuine” if there is a sufficient evidentiary basis on
which a reasonable fact finder could return a verdict for the non-moving party, and a factual
dispute is “material” if it might affect the outcome of the case under governing law. Kaucher v.
County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). The court must view the evidence in the light most favorable to the nonmoving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011). However, “unsupported
assertions, conclusory allegations or mere suspicions” are insufficient to overcome a motion for
summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 493 (E.D.
Pa. 2010) (citing Williams v. Borough of W. Chester, Pa., 891 F.2d 458, 461 (3d Cir. 1989)).
The movant “always bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the
moving party’s initial Celotex burden can be met by showing that the non-moving party has
“fail[ed] to make a showing sufficient to establish the existence of an element essential to that
party’s case.” (Id. at 322).
After the moving party has met its initial burden, summary judgment is appropriate if the
non-moving party fails to rebut the moving party’s claim by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials”
that show a genuine issue of material fact or by “showing that the materials cited do not establish
the absence or presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1)(A).
Defendants have moved for summary judgment on all claims asserted in Reyer’s First
A. FMLA Claims
“The FMLA entitles eligible employees to take twelve weeks of leave during any twelvemonth period for the employee’s own ‘serious health condition that makes the employee unable
to perform the functions’ of his or her job.” Lupyan v. Corinthian Colleges Inc., 761 F.3d 314,
317-18 (3d Cir. 2014) (quoting 29 U.S.C. § 2612(a)(1)(D)). Following this leave, an employee is
entitled to be restored to his original position or an equivalent position. 29 U.S.C. § 2614(a)(1).
However, when an employee cannot perform an essential function of the original position due to
the “continuation of a serious health condition,” the right to restoration does not exist. 29 C.F.R.
§ 825.216(c). Additionally, as a condition of restoration for an employee who has taken leave for
his own serious medical condition, an “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.” 29 U.S.C. § 2614.
The FMLA contains “two relatively distinct provisions.” Callison v. City of Philadelphia,
430 F.3d 117, 119 (3d Cir. 2005). First, an employer is prohibited from taking action “to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided
under” the FMLA. 29 U.S.C. § 2615(a)(1). A claim arising under section 2615(a)(1) is known as
an “interference” claim. Callison, 430 F.3d at 119. Second, the FMLA makes it “unlawful for
any employer to discharge or in any other manner discriminate against any individual for
opposing any practice made unlawful” by the FMLA. 29 U.S.C. § 2615(a)(2). A claim under
section 2615(a)(2) is referred to as a “retaliation” or a “discrimination” claim. Callison, 430 F.3d
at 119. Defendants have moved for summary judgment on Reyer’s FMLA interference and
In order to make out a claim for interference under the FMLA, a plaintiff must establish
that “(1) he or she was an eligible employee under the FMLA; (2) the defendant was an
employer subject to the FMLA’s requirements; (3) the plaintiff was entitled to FMLA leave; (4)
the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the
plaintiff was denied benefits to which he or she was entitled under the FMLA.” Ross v. Gilhuly,
755 F.3d 185, 191-92 (3d Cir. 2014) (quoting Johnson v. Cmty. Coll. of Allegheny Cnty., 566 F.
Supp. 2d 405, 446 (W.D. Pa. 2008)).
Defendants argue that Reyer’s FMLA interference claim fails because there is no
evidence that St. Francis ever denied Reyer the benefits he was entitled to receive under the
FMLA. Defendants note that Reyer requested and received FMLA leave in 2011, 2012 and 2013
and that, each year, he exceeded the twelve weeks he was entitled to receive. Defendants urge
that Reyer’s claim for interference also fails because he never provided St. Francis with
documentation from his physician certifying that Reyer was able to return to work and the
undisputed evidence shows he was unable to perform the essential functions of the job at the
time his FMLA expired. As such, Defendants contend that Reyer has failed to demonstrate that
he was entitled to reinstatement to the same or equivalent position under the FMLA.
Proceeding under a somewhat different theory, Reyer argues that he has offered sufficient
evidence to withstand summary judgment on his interference claim on the basis that Defendants
failed to provide him with adequate notice under the FMLA. Specifically, he urges that the
evidence establishes that he was never (1) provided with written notice that his leave was being
designated as FMLA leave – i.e. a “designation notice,” (2) informed “of his balance of FMLA
time” or (3) informed that he would be terminated if he failed to provide documentation from a
physician certifying that he could return to work without restrictions. Reyer urges that these
failures prevented him from making informed decisions about his leave such as whether or not
he wanted to have the PICC line inserted.
The FMLA mandates that employers provide employees with “both general and
individual notice about the FMLA.” Lupyan, 761 F.3d at 318. To satisfy the general notice
requirements, an employer must post a notice setting forth employees’ FMLA rights on its
premises and provide employees with information about the employer’s FMLA policies in a
handbook or an equivalent publication. 29 U.S.C. § 2619(a), 29 CFR § 825.300.
Regarding the individual notice requirement, once an employer is aware that an employee
is taking FMLA-qualifying leave, the employer must:
(1) within five business days notify the employee of his or her
eligibility to take FMLA leave, 29 C.F.R. § 825.300(b)(1); (2)
notify the employee in writing whether the leave will be designated
as FMLA leave, 29 C.F.R. § 825.300(d)(1); (3) provide written
notice detailing the employee’s obligations under the FMLA and
explaining any consequences for failing to meet those obligations,
§ 825.300(c)(1); and (4) notify the employee of the specific
amount of leave that will be counted against the employee’s
FMLA leave entitlement, § 825.300(d)(6).
Lupyan, 761 F.3d at 318. Failure to provide an employee with this notice can constitute a claim
for interference. Id. (citing Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 144 (3d Cir.
2004)). In order for such a claim to be actionable, a plaintiff must show that the “failure to advise
rendered him unable to exercise [his FMLA rights] in a meaningful way, thereby causing injury.”
Conoshenti, 364 F.3d at 143.
Viewed in the light most favorable to Reyer, evidence in the record could support a
conclusion that Reyer informed Defendants that he was taking FMLA-qualifying leave triggering
Defendants’ obligation to provide him with the individual notice required under the FMLA.
Reyer also testified that he repeatedly requested but never received information regarding the
amount of FMLA time he had taken. Kersey also testified that she never provided Reyer with a
designation notice. As Defendants have not challenged this failure to advise theory, Defendants’
motion for summary judgment on the interference claim will be denied.
“FMLA retaliation claims are rooted in the FMLA regulations.” Budhun v. Reading
Hosp. & Med. Ctr., 765 F.3d 245, 256 (3d Cir. 2014). “They prohibit an employer from
In his response in opposition to the motion for summary judgment, Reyer addressed his ADA
and FMLA retaliation claims together. In doing so, he conflated the evidence and arguments he
contends support the two claims. However, at least in part, the FMLA and ADA retaliation
claims involve somewhat different protected activity. Reyer’s decision to treat the claims
together makes it somewhat difficult to understand his arguments. Nonetheless, I have attempted
to parse the evidence on which Reyer relies and have given separate treatment to the claims.
‘discriminating or retaliating against an employee or prospective employee for having exercised
or attempted to exercise FMLA rights.’” Id. (quoting 29 C.F.R. § 825.220(c)).
In the absence of direct evidence, as is the case here, FMLA retaliation claims are
assessed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir.
2012).8 Under that framework, the plaintiff has the initial burden of establishing a prima facie
case. To do so in the FMLA retaliation context, a plaintiff must show that: (1) he took FMLA
leave; (2) he suffered an adverse employment decision; and (3) the adverse decision was causally
related to that leave. Conoshenti, 364 F.3d at 146.
If the plaintiff presents a prima facie case, the burden of production shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its decision. Lichtenstein, 691
F.3d at 302. If the defendant meets this “minimal burden,” “the plaintiff must point to some
evidence, direct or circumstantial, 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.”
Fuentes v. Perksie, 32 F.3d 759, 763 (3d Cir. 1994).
1. Prima Facie Case – Causal Connection
Defendants urge that Reyer cannot establish a prima facie case of retaliation because he
cannot demonstrate a causal link between his taking FMLA leave and his termination.
Courts generally focus on “two main factors in finding the causal link necessary for
retaliation: timing and evidence of ongoing antagonism.” Abramson v. William Paterson College
of N.J., 260 F.3d 265, 288 (3d Cir. 2001). First, courts may look at the timing of the adverse
The parties agree that Reyer’s FMLA retaliation claim should be analyzed under the
McDonnell Douglas framework.
employment action. Id. “If the timing of the alleged retaliatory action is ‘unusually suggestive of
retaliatory motive’ a causal link will be inferred.” Krouse v. Am. Sterilizer Co., 126 F.3d 494,
503 (3d Cir. 1997). When a causal connection relies on temporal proximity alone, courts
generally require that the termination occur within a few days of the protected activity. See, e.g.,
Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (holding that a causal link can be inferred
where two (2) days passed between the employee’s protected activity and the adverse
employment action); Whitman v. Proconex, Inc., 2009 WL 141847, at *10-12 (E.D. Pa. Jan. 20,
2009) (finding that discharge within minutes of returning from FMLA leave was “unduly
suggestive” of a causal link); Reinhart v. Mineral Techs. Inc., 2006 WL 4050695, at *10–11
(E.D. Pa. Nov. 27, 2006) (finding evidence that termination occurred within twenty-four (24)
hours after returning from FMLA leave sufficient to survive summary judgment). Second, a
court may infer causation where an employer engages in a continuous pattern of antagonism
between the time an employee engaged in protected activity and the adverse employment action.
Abramson, 260 F.3d at 288. Temporal proximity and evidence of antagonism “are not the
exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to
raise the inference.” Kachmar, 109 F.3d at 177.
According to Defendants, there is “no evidence of any antagonism from anyone at St.
Francis” and Reyer cannot establish causation through evidence of temporal proximity alone.
Defendants urge that proximity in this case should be measured from November 2011, the date
on which Reyer first took FMLA leave, to December 2013 when St. Francis terminated Reyer’s
employment. Defendants urge that this two year lapse is much too lengthy to support an
inference of causation. 9
As noted above, Reyer lumped his FMLA and ADA retaliation claims together. In the section
addressing causation, Reyer primarily discusses the temporal proximity between his request that
I disagree with Defendants’ insistence that temporal proximity must be measured from
Reyer’s very first instance of protected activity. In support of their argument that the relevant
date for measuring temporal proximity is November 2011 – the date on which Reyer first took
FMLA leave, Defendants cite to Capps v. Mondelez Global LLC, 147 F. Supp. 3d 327(E.D. Pa.
2015). In that case, the district court stated that “[c]ourts measure temporal proximity from the
first date on which the litigant engaged in his protected activity.” Id. at 337. For this proposition,
the district court in Capps relied on an unpublished Third Circuit case, Blakney v. City of
Philadelphia, 559 Fed. Appx. 183 (3d Cir. 2014), wherein the court stated that “[w]e measure
temporal proximity from the date on which the litigant first files a complaint.” Id. at 186.
Unlike the case before me, the protected activity in Blakney was the filing of a formal
complaint. Furthermore, other published Third Circuit precedent clearly recognizes that the
temporal analysis can account for instances in which a plaintiff engages in multiple protected
activities. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997) (retaliatory
action occurred “[s]everal months after [the plaintiff's] last protected activity” along with other
evidence of antagonism is sufficient to allege a causal connection); Urey v. Grove City Coll., 94
F. Appx. 79, 81 (3d Cir. 2004) (analyzing temporal proximity based on last instance of protected
activity); Wiest v. Tyco Elecs. Corp., 812 F.3d 319, 332 (3d Cir. 2016) (same).
As noted above, for the purpose of this motion, I will consider December 23, 2013 as the
date on which Reyer exhausted his twelve weeks of FMLA leave. As such, viewed in the light
most favorable to Reyer, he was terminated on the day his FMLA leave expired and this timing
could be considered “unduly suggestive.” See, e.g, Parker v. Hanhemann Univ. Hosp., 234 F.
Supp. 2d 478, 492 (D.N.J. 2002) (“the parties do agree that plaintiff was told that her job was
Defendants accommodate his five-pound lifting restriction and his termination. Requests for
reasonable accommodations are not protected activity under the FMLA and, therefore, are
irrelevant to the analysis of Reyer’s FMLA retaliation claim.
eliminated the very day that she returned from FMLA leave. Such temporal proximity is ‘unduly
suggestive’ and satisfies the causation element of plaintiff's prima facie case at the summary
Furthermore, there is no evidence in the record that Defendants considered whether
Reyer was eligible for additional leave under the six month leave policy above and beyond his
twelve-week FMLA leave. Viewing the evidence in the light most favorable to Reyer, a
reasonable jury could conclude that Defendants’ decision to terminate Reyer and not extend him
the benefit of the six month leave policy was made in retaliation for his invocation of FMLA
leave. 10 See Garrett v. Atlanticare Health Sys., Inc., 2009 WL 3446755, at *8 (D.N.J. Oct. 21,
2009) (“even if Plaintiff was not entitled to automatic reinstatement under the FMLA, the
practical effect of the Defendant’s Unprotected Leave Policy was to allow her certain rights to
reapply. If that policy was implemented in a way intended to retaliate against Plaintiff for her
invocation of FMLA leave, such conduct is not immunized simply because Defendant could
have terminated her back on February 1st.”)11 For these reasons, I conclude that Reyer has
A reasonable jury certainly could conclude otherwise. However, given the material issues of
fact in the record before me, the ultimate decision as to Defendants’ motivation for terminating
Reyer’s employment remains a question for a jury.
Additionally, Defendants argue that Reyer cannot demonstrate causation because Reyer was
not terminated for his exercise of his FMLA rights but, rather because, he never provided St.
Francis with documentation certifying that he was able to return to work after exhausting his
twelve weeks of FMLA leave, which is a prerequisite for reinstatement. Defendants present this
argument in connection with the causation element of Reyer’s prima facie case and also as one of
their legitimate non-discriminatory reasons for terminating Reyer’s employment. The Third
Circuit has held that “the nature of retaliation claims distinctly focuses on the employer’s
conduct and motivations for termination. Therefore, an employee is not precluded—as a matter
of law—from bringing a retaliation claim simply because she exceeded the twelve-week FMLA
entitlement.” Lupyan, 761 F.3d at 324–25. As such, I am not persuaded by Defendants’
argument that Reyer’s inability to return to work at the time he exceeded his twelve-week FMLA
entitlement precludes inquiry into their subjective motivations or immunizes them from liability.
identified sufficient evidence, for purposes of withstanding summary judgment, to support
2. Legitimate Non-Discriminatory Reason and Pretext
According to Defendants, they have proffered more than adequate information to
demonstrate that Reyer was terminated for the following legitimate non-discriminatory reasons
(“LNDR”): (1) Reyer had exhausted his FMLA leave prior to his termination, (2) the “indefinite”
five-pound lifting restriction prevented Reyer from performing the essential functions of his job
as a maintenance worker, and (3) they needed to find a replacement to prevent further overtime.
Defendants urge that Reyer was terminated for all three reasons taken together. I agree with
Defendants that they have met their “relatively light” burden at this stage of articulating a
legitimate non-discriminatory reason for their decision to terminate Reyer’s employment. See
EEOC v. Aldi, Inc., 2008 WL 859249, at *17–18 (W.D.Pa. Mar. 28, 2008) (concluding that
plaintiff's failure to perform essential functions of the job is a legitimate nonretaliatory reason for
dismissal); Mills v. Temple Univ., 869 F. Supp. 2d 609, 628 (E.D. Pa. 2012) (same).
As such, the burden shifts back to Reyer to demonstrate pretext. Defendants contend that
Reyer has failed to offer any evidence from which a reasonable fact finder could disbelieve the
Defendants’ articulated non-discriminatory reasons or believe that discrimination was more
likely than not a motivating or determinative factor.
a. LNDR 1 – Expiration of FMLA Leave Time
Reyer responds that a jury could disbelieve the first reason Defendants identify because
Defendants “refused” to tell Reyer when his FMLA leave expired, Kersey could not provide the
exact date on which his FMLA leave expired and Kersey, Chapman and Hedges gave
inconsistent testimony regarding who terminated Reyer’s employment.
Viewing this evidence in the light most favorable to Reyer, I agree that he has offered
sufficient evidence upon which a reasonable fact finder could find Defendants’ assertion that he
was terminated because his FMLA leave time expired to be unworthy of credence.
As discussed above in the context of causation, St. Francis maintained a “leave of
absence” policy which allowed employees to take six months of leave for medical reasons. The
handbook explains that the “leave of absence” policy applies to a period “beyond the twelve (12)
weeks of the family leave policy.” Nothing in the record establishes that Reyer was afforded the
protections of St. Francis’ “leave of absence” policy or that Defendants considered whether
Reyer was entitled to its protections prior to terminating his employment.
As such, a reasonable jury could infer that Defendants’ decision to terminate Reyer’s
employment because his FMLA leave expired was pretextual in light of their failure to consider
Reyer’s eligibility for additional leave under the more generous “leave of absence” policy. See
Poff v. Prudential Ins. Co. of Am., 911 F. Supp. 856, 861 (E.D. Pa. 1996) (“an employer’s failure
to follow procedure assists a plaintiff’s case if such violation, in conjunction with other evidence
(such as evidence showing that the policy was disparately applied), tends to show that the
proffered reason is not credible.”)
Furthermore, Reyer testified that, despite repeated email, phone, and in person inquires,
Defendants failed to provide him with information about the “balance” of his FMLA leave until
shortly after his termination. If believed, a fact finder could conclude Defendants’ repeated
failure to inform Reyer of the balance of his time to be relevant to the pretext inquiry insofar as it
could cast doubt on Defendants’ assertion that they were merely concerned with the orderly
application of employees’ rights under the FMLA. That said, I disagree with Reyer that Kersey’s
inability to recall the exact date on which Reyer’s FMLA leave expired is not in and of itself,
either directly or circumstantially, probative of discrimination. Reyer has not explained how
Kersey’s minor gap in recall is relevant.
Lastly, the inconsistent testimony regarding who discussed and who ultimately made the
decision to terminate Reyer could somewhat undermine all three non-discriminatory reasons
offered by Defendants. While a reasonable jury certainly could decide that this inconsistency is
the product of the passage of time, it is also possible that a jury could conclude that Kersey and
Hedges were attempting to obscure their involvement or deflect blame because they were taking
an unlawful action. Although this inconsistency standing alone is unsufficient to carry Reyer’s
burden of demonstrating pretext, see Proudfoot v. Arnold Logistics, 2015 WL 5881530 (3d Cir.
Oct. 8, 2015) (“slight inconsistencies as to who made the ultimate decision to terminate
Proudfoot do not demonstrate that the reason provided for his termination was pretextual”),
based on the entire record before me, I conclude that these facts cannot be ignored.
For the foregoing reasons, I conclude that Reyer has pointed to sufficient evidence –
albeit barely so – to demonstrate that Defendants’ first non-discriminatory reason was pretextual.
In making this conclusion, I have also considered the evidence he offered in support of his prima
facie case. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 286 (3d Cir. 2000) (“evidence
supporting [a] prima facie [retaliation] case is often helpful in the pretext stage and nothing about
the McDonnell Douglas formula requires us to ration the evidence between one stage or the
b. LNDR 2 – Inability to Perform Essential Functions
Next, Reyer contends that a jury could disbelieve Defendants’ assertion that he was
terminated because he was unable to perform the essential functions of his job following the
expiration of his FMLA leave. As discussed below in the context of Reyer’s ADA claim, there
are genuine issues of material fact as to what the “essential functions” of the Maintenance
Worker position were. Therefore, whether Reyer could perform those functions at the time of his
termination also remains an unresolved question. As such, it would be inappropriate to conclude
that Reyer is unable to refute Defendants’ assertion that he was terminated for his alleged
inability to perform certain essential functions of his job.
That said, even assuming that Reyer was not able to perform the essential functions of his
job and, therefore, not entitled to reinstatement, this fact in and of itself would not insulate
Defendants from liability if unlawful considerations nonetheless animated their decision to
terminate Reyer’s employment. See Donald v. Se. Pennsylvania Transp. Auth. (SEPTA), 2014
WL 3746520, at *6 (E.D. Pa. July 29, 2014) (“the focus in retaliation cases is on the subjective
motive of the employer. That [the defendant] may have had a legitimate basis for its employment
decision is not a complete defense to a [FMLA retaliation claim]. While [the defendant] may
generally be justified in terminating Plaintiff because she remained absent at the end of her
FMLA leave, this does not necessarily preclude the finding that unlawful considerations may
have nevertheless played a determinative role in the particular decision at issue.”)
c. LNDR 3 – Avoidance of Further Overtime
I also conclude that Reyer has offered sufficient evidence upon which a reasonable fact
finder could disbelieve Defendants’ assertion that Reyer’s employment was terminated in order
to avoid further overtime charges and address understaffing concerns at St. Francis. In support,
Reyer notes that Millar, his replacement, completed his employment application on January 24,
2014 but was not hired for another two months. In light of this delay, a reasonable jury could
conclude that Defendants’ assertion that Reyer was terminated because St. Francis needed to
promptly resolve its understaffing issue to be unworthy of credence.
In sum, the evidence Reyer points to provides a sufficient basis on which a jury could
infer that the three non-discriminatory reasons proffered by Defendants were pretext for
discrimination. See Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1071 (3d Cir.
1996) (generally, the determination of whether the reason given was pretextual should be left for
the jury because a “finding of discrimination is at bottom a determination of intent”). Based on
the foregoing, Reyer has established both a prima facie case of retaliation in violation of the
FMLA and the existence of genuine issues of material fact regarding whether Defendants’
proffered reasons for his termination were pretext. Defendants’ motion for summary judgment
on Reyer’s FMLA retaliation claim will be denied.
B. ADA Claims
Defendants have also moved for summary judgment on Reyer’s discrimination, failure to
accommodate and retaliation claims brought under the ADA.
i. Discrimination (Disparate Treatment)
The ADA prohibits discrimination “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. In the absence of direct evidence, as is the case here, the
McDonnell Douglas burden shifting framework applies to discrimination claims brought under
the ADA. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000).12 That framework is laid out
above in the context of Reyer’s FMLA retaliation claim.
The parties both assert and I agree that Reyer’s ADA discrimination claim should be analyzed
under the McDonnell Douglas framework. (Defs.’ Mot. p. 15; Pl.’s Resp. p. 12.)
1. Reyer’s Prima Facie Case
To establish a prima facie case of disability discrimination under the ADA, a plaintiff
must demonstrate: (1) that she is a disabled person within the meaning of the ADA; (2) that she
is otherwise qualified to perform the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) that she has suffered an otherwise adverse
employment decision as a result of discrimination. Gaul v. Lucent Techs., 134 F.3d 576, 580 (3d
For the purposes of their summary judgment motion, Defendants do not contest that
Reyer was disabled within the meaning of the ADA nor do Defendants dispute that Reyer was
subjected to an adverse employment action – i.e., termination. (Defs.’ Mot. p. 16 n.7.) It is the
second element—whether Reyer was able to perform the essential functions of his job, with or
without a reasonable accommodation—that Defendants urge Reyer cannot establish.
a. Essential Functions
A qualified individual is someone with a disability who, “with or without reasonable
accommodation, can perform the essential functions of the employment position[.]” 42 U.S.C.
§ 12111. To determine whether a person is qualified, a two-part test is used: “[f]irst, a court must
consider whether ‘the individual satisfies the prerequisites for the position, such as possessing
the appropriate educational background, employment experience, skills, licenses, etc.’ and
second, ‘whether or not the individual can perform the essential functions of the position held or
desired, with or without reasonable accommodation.’” Gaul, 134 F.3d at 580 (quoting 29 C.F.R.
pt. 1630, App. at 353–54). The determination as to whether someone is qualified is made at the
time of the employment decision. Gaul, 134 F.3d at 580.
“[W]hether a particular function is essential ‘is a factual determination that must be made
on a case by case basis [based upon] all relevant evidence.’” Turner v. Hershey Chocolate U.S.,
440 F.3d 604, 612 (3d Cir. 2006) (quoting Deane v. Pocono Medical Ctr., 142 F.3d 138, 148 (3d
Cir. 1998) (en banc)). The Equal Employment Opportunity Commission’s regulations defining
“essential functions” further state a function may be deemed “essential” because: (i) the reason
the position exists is to perform that function; (ii) the limited number of employees available
among whom the performance of that job function can be distributed; and/or (iii) the function
may be highly specialized so that the incumbent in the position is hired for her expertise or
ability to perform the particular function. 29 C.F.R. § 1630.2(n)(2).
The regulations further set forth a non-exhaustive list of examples of evidence that may
assist courts in identifying the “essential functions” of a job: (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
job; and/or (vii) the current work experience of incumbents in similar jobs. 29 C.F.R.
§ 1630.2(n)(3); see also Skerski v. Time Warner Cable Co., a Div. of Time Warner Entm’t Co.,
L.P., 257 F.3d 273, 279 (3d Cir. 2001) (discussing and applying the seven factors). “[N]one of
the factors nor any of the evidentiary examples alone are necessarily dispositive.” Skerski, 257
F.3d at 279.
Defendants urge that Reyer cannot establish that he was qualified for the Maintenance
Work III position at the time of his termination because he was unable to perform the essential
functions of the position, without or without reasonable accommodations, in light of the five-
pound lifting restriction. Although Defendants are not entirely consistent as to the exact nature of
the essential function they contend Reyer could not perform, it appears that they are arguing that
lifting more than fifty pounds was an essential function of the job.13 After reviewing the record, I
conclude that there are genuine issues of material fact regarding whether lifting fifty pounds was
an essential function of the Maintenance Worker position.
The job description for the Maintenance Worker position identifies the following as a
“physical . . . requirement”: “must be able to lift in excess of 50 pounds, push, pull and move
residents, equipment, supplies, etc., up to 200 pounds.” (Defs.’ Mot., Ex. 10.)14 According to
Hedges, lifting items in excess of 50 pounds was a “true assessment” of the Maintenance Worker
position. (Defs.’ Mot. Ex. 5, Hedges Dep. 83:17-83:23.)
Although lifting fifty pounds is identified in the job description and Hedges verified its
inclusion as a “true assessment” of the position, neither fact is conclusive. See Deane, 142 F.3d
at 148 (declining to apply “conclusive effect to either the job description or [the employer’s]
judgment as to whether heavy lifting is essential to [plaintiff’s] job”). The applicable regulations,
Portions of Defendants’ motion can be read as suggesting that lifting in general or lifting more
than five pounds was an essential function of the Maintenance Worker position. However, the
vast majority of Defendants’ argument and factual assertions in connection with the issue focus
on lifting in excess of fifty pounds. (See Defs.’ Mot. p. 17; Defs.’ Statement of Undisputed Facts
¶¶ 22-23, 30.) Additionally, in the context of Reyer’s ADA claims, Defendants explicitly state –
at least once – that lifting fifty pounds was an essential function of the job.
For purposes of this analysis, “requirements” of a position may be distinguishable from the
“essential function(s)” of that position. See e.g., Skerski, 257 F.3d at 280 (“describing climbing
as a requirement is not necessarily the same as denominating climbing as an essential function);
Acevedo v. City of Philadelphia, 680 F. Supp. 2d 716, 733 (E.D. Pa. 2010) (“A distinction must
be made between the requirements of a given position and the essential functions of that
While lifting more than 50 pounds is identified as a physical requirement of the job, I note that
lifting objects – in excess of fifty pounds or otherwise – does not appear in the section of the job
description captioned “Purpose of Your Job Position.”
statutes and precedent instruct that I look to all of the evidence in the record in making the
During the relevant time period, St. Francis generally employed five Maintenance
Workers. The limited number of available employees among whom lifting objects in excess of
fifty pounds could be distributed supports Defendants’ argument. See 29 C.F.R. § 1630.2(n)(2).
However, nothing in the record establishes the frequency with which Maintenance Workers were
required to lift objects in excess of fifty pounds or how much time was devoted to such tasks on
an average day.15
Although Reyer acknowledged that lifting objects in excess of fifty pounds was listed in
the job description, he did not testify how frequently he lifted objects of that weight.
Additionally, besides Reyer’s statement that he was previously subject to a no-lifting restriction
and then later, a twenty-five pound lifting restriction, nothing in the record speaks to the lifting
experience of other Maintenance Workers employed during or before Reyer’s employment at St.
Viewed in the light most favorable to Reyer, the record does not suggest that the reason
the Maintenance Worker position existed was to lift objects in excess of fifty pounds or that
Reyer was hired for his expertise in lifting objects in excess of fifty pounds.
Additionally, viewed in the light most favorable to Reyer, the record could support a
conclusion that lifting objects in excess in fifty pounds may be a means for carrying out an
essential function of the Maintenance Worker position rather than the essential function itself. I
Chapman testified that Maintenance Workers were required to lift more than five pounds
“[e]very day, many times during the day” (Defs.’ Mot., Ex. 2, Chapman Dep. 35:2-5.) However,
as explained above, a fair reading of Defendants’ submissions indicates that they contend that
lifting more than fifty pounds is an “essential function” of the job. As such, Chapman’s
testimony regarding the frequency with which Maintenance Workers were required to lift more
than five pounds is irrelevant to the current essential functions analysis.
note that “the essential function requirement focuses on the desired result rather than the means
of accomplishing it.” Skerski, 257 F.3d at 280. For example, “in a job requiring the use of a
computer, the essential function is the ability to access, input, and retrieve information from the
computer. It is not essential that the person be able to use the keyboard or visually read the
computer screen” Id. at 281. As such, there is an issue as to whether lifting objects in excess of
fifty pounds is the means of accomplishing a task rather than a desired result.
In conclusion, at least some of the factors identified in 29 C.F.R. § 1630.2(n)(2) support a
conclusion that lifting fifty pounds was not an essential function of the Maintenance Worker
position. Given that genuine issues of material fact exist, it would be inappropriate to
conclusively resolve this question. See Skerski, L.P., 257 F.3d at, 280 (“consideration of the
seven evidentiary examples included in § 1630.2(n)(3) suggests caution against any premature
determination on essential functions [when] at least some of them lean in [a plaintiff’s] favor.”)
The issues I have identified must be resolved by a jury. See Turner, 440 F.3d at 614 (“the fact
issue as to ‘essential function’ must be decided by a jury”).
b. Reasonable Accommodation
As noted above, the question is not merely whether Reyer could perform the essential
functions of his job but rather could Reyer perform the essential functions with or without a
reasonable accommodation. “As with the issue of ‘essential function,’ the issue of ‘reasonable
accommodation’ presents a fact question.” Id. at 614–15.
Because factual questions remain as to whether lifting objects in excess of fifty pounds
was an essential function of the Maintenance Worker position, I am unable to determine that
Reyer was incapable of performing the essential functions of his job with or without a reasonable
accommodation. See, e.g., Acevedo, 680 F. Supp. 2d at 738 (recognizing that where a genuine
issue of material fact remains regarding the essential function(s) of a position, courts are
prevented from addressing the issue of whether a plaintiff could perform those function(s) with
or without a reasonable accommodation).16
ii. Failure to Accommodate
The adverse employment decisions barred by the ADA include “not only adverse actions
motivated by prejudice and fear of disabilities, but also . . . failing to make reasonable
accommodations for a plaintiff’s disabilities.” Mercer v. Se. Penn. Transit Auth., 26 F. Supp. 3d
432, 440 (E.D. Pa. 2014) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.
1999). As such, “[a]n employer’s failure to reasonably accommodate the disabilities of an
otherwise qualified employee constitutes an adverse employment action under the third element
of the prima facie case of generic disability discrimination.” Sharbaugh v. W. Haven Manor, LP,
2016 WL 6834613, at *8 (W.D. Pa. Nov. 21, 2016).
More specifically, “the ADA defines discrimination to include ‘not making 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.’” Mercer, 26
F. Supp. 3d at 440 (quoting 42 U.S.C. § 12112(b)(5)(A)). The ADA further states that
discrimination includes “denying employment opportunities to [an] … employee who is an
otherwise qualified individual with a disability, if such denial is based on the need of such
covered entity to make reasonable accommodation to the physical or mental impairments of the
employee[.]” 42 U.S.C. § 12112(b)(5)(B).
Because the same burden shifting scheme applies in the context of Reyer’s FMLA retaliation,
ADA disparate treatment and ADA retaliation claims, the analysis of Defendants’ nondiscriminatory reasons and Reyer’s showing of pretext are the same for all three claims.
Accordingly, my analysis from the FMLA retaliation discussion applies in the context of Reyer’s
ADA disparate treatment and ADA retaliation claims.
Notably, failure to accommodate claims “do not require that an employer’s action be
motivated by a discriminatory animus directed at the disability and, therefore, the McDonnell
Douglas test does not apply.” Sharbaugh, 2016 WL 6834613, at *7; see also Allen v. Verizon
Pennsylvania, Inc., 418 F. Supp. 2d 617, 622 (M.D. Pa. 2005).
To establish that an employer breached its duty to provide a reasonable accommodation,
a plaintiff must demonstrate: (1) that he was disabled and his employer knew it; (2) he requested
an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and
(4) he could have been reasonably accommodated. Armstrong v. Burdette Tomlin Mem'l Hosp.,
438 F.3d 240, 246 (3d Cir. 2006); Taylor, 184 F.3d at 319–20.
A qualified individual has the burden of identifying an accommodation whose costs do
not clearly exceed its benefits. Walton v. Mental Health Ass’n of Southeastern Pennsylvania, 168
F.3d 661, 670 (3d Cir. 1999). Summary judgment may be granted for a defendant only “in cases
in which the plaintiff's proposal is either clearly ineffective or outlandishly costly.” Id. (citations
omitted). “If the plaintiff satisfies his or her burden, the defendant then has the burden to
demonstrate that the proposed accommodation creates an ‘undue hardship’ for it. The ADA
defines ‘undue hardship’ as ‘an action requiring significant difficulty or expense, when
considered in light of [a series of factors].’ Among the factors to be considered are ‘the effect on
expenses and resources, or the impact otherwise of such accommodation upon the operation of
the facility.’” Id. (quoting 42 U.S.C. § 12111(10)(A)(B)).
“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 v. Philadelphia Hous. Auth.
Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004). “Once an accommodation is requested, the
employer is required to engage in the interactive process during which the employer and
employee identify the precise limitations resulting from the disability and the potential
reasonable accommodations that could overcome them.” Bielich v. Johnson & Johnson, Inc., 6 F.
Supp. 3d 589, 617 (W.D. Pa. 2014); Armstrong, 438 F.3d at 246 (“if an employer has adequate
notice of an employee’s disability, and the employee requests accommodations for the disability,
it becomes the responsibility of the employer to engage the employee in the interactive process
of finding accommodations”); see also 29 C.F.R. § 1630.2(o)(3) (“To determine the appropriate
reasonable accommodation it may be necessary for the [employer] to initiate an informal,
interactive process with the individual with a disability in need of the accommodation. This
process should identify the precise limitations resulting from the disability and potential
reasonable accommodations that could overcome those limitations.”). More specifically:
The interactive process is aimed at determining what reasonable
accommodations, if any, can address the employee’s disability.
The interactive process requires a great deal of communication
between the employee and the employer, as both parties “bear
responsibility for determining what accommodation is necessary.
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 A failure to
communicate, either by way of initiation or response, may be an
act of bad faith.
Sharbaugh, 2016 WL 6834613, at *9 (internal quotations and citations omitted); see also
Williams, 380 F.3d at 776.
Defendants argue that the undisputed evidence demonstrates that they made a good faith
effort to accommodate what they characterize as Reyer’s requested “indefinite” five-pound
lifting restriction. In support, Defendants assert that it is undisputed that (1) Reyer had many
conversations with Kersey about when he could return to work, (2) when presented with the fivepound lifting restriction on December 3, 2013, Kersey spoke to Hedges and Chapman to
determine if such a restriction could be accommodated and (3) following “meaningful
discussion” it was determined that no reasonable accommodation existed that would have
allowed Reyer to fulfill the position’s essential functions, including lifting items in excess of
Contrary to Defendants’ position, the foregoing factual assertions are disputed. Viewed in
the light most favorable to Reyer, the evidence could reasonably support a conclusion that
Defendants’ representatives did not “meaningfully” discuss the lifting restriction either amongst
themselves or with Reyer. I make this conclusion in light of the fact that Kersey testified that she
could not recall whether she discussed the five-pound lifting restriction with Reyer. Similarly,
Hedges and Chapman both testified that they never discussed the restriction with Reyer.
Although Kersey claimed that she discussed the lifting restriction with Hedges and Chapman,
Hedges could not recall having such a discussion. This is significant because unlike Kersey,
Hedges had intimate knowledge about the daily routine and requirements of the Maintenance
Worker’s position. In light of this evidence, a reasonable jury could conclude that Defendants’
response to the five-pound lifting restriction was limited and insufficient to satisfy their
obligation to engage in the interactive process.
Furthermore, Defendants’ characterization of the lifting restriction as “indefinite” is
disputed. According to Defendants, Reyer provided them conflicting and confusing information
about when he could return to work and never provided them with a date on which he would be
able to return to work without the five-pound lifting restriction.17 As such, they claim that they
In support of their “indefinite” argument, Defendants state that the last doctor note Reyer
provided did not specify when the five-pound lifting restriction would end. Defendants assert
reasonably believed that the lifting restriction was “indefinite” and, relatedly, that Reyer’s
request for leave was “open-ended.” Defendants note that indefinite leave is not a reasonable
accommodation. See Krensavage v. Bayer Corp., 314 F. Appx. 421, 426 (3d Cir. 2008) (“it has
been recognized that an open-ended disability leave is not a reasonable accommodation under
the ADA where, as here, the plaintiff does not present evidence of the expected duration of her
impairment”); Fogleman v. Greater Hazleton Health All., 122 F. Appx. 581, 586 (3d Cir. 2004)
(a request for “indefinite and open-ended” leave “does not constitute a reasonable
When viewed in the light most favorable to Reyer, there is sufficient evidence in the
record to support a conclusion that Reyer’s requested accommodations were not “indefinite” in
nature. Reyer testified that he had discussions with Kersey and Hedges about how long his PICC
line would be in. According to Reyer, prior to his termination, he told Kersey that he would have
the five-pound weight restriction until the PICC line was removed sometime in early January.
If Reyer’s testimony is credited, and at this stage it must, the requested accommodations
– either in the form of a five-pound lifting restriction or additional leave – were not indefinite or
open-ended because both would have ended in early January. A request or a leave of absence
may constitute a reasonable accommodation. Id. at 585 (“In some instances, it may be possible
for a requested leave of absence to constitute a reasonable accommodation”). Additionally, if
Defendants were uncertain as to the duration of the lifting restriction or his request for leave, a
that had Reyer provided them with the December 23, 2013 note, which indicated that the lifting
restriction would end by mid-January, Reyer “may have had a colorable argument to defeat
summary judgment [on the ground that] a finite period of medical leave may represent a
reasonable accommodation.” (Defs’ Mot. p. 18 (emphasis in original)). As noted above,
Defendants’ argument entirely overlooks Reyer’s own testimony and as well as their own
obligations under the ADA.
reasonable jury could conclude that Defendants failed to engage in good faith and did not
attempt to clarify ambiguous information with Reyer.
Viewed in the light most favorable to Reyer, the foregoing evidence is sufficient to
permit a reasonable jury to conclude that Defendants failed to fulfill their obligation to
participate in the interactive process. Additionally, there are genuine issues of material fact as to
whether the proposed accommodations were reasonable and would have enabled Reyer to
perform the essential functions of his job. For these reasons, summary judgment with respect to
Reyer’s failure to accommodate/interactive process claim is not appropriate.
Under the ADA, “it is unlawful for an employer to retaliate against an employee based
upon the employee’s opposition to anything that is unlawful under the ADA.” Williams, 380
F.3d at 758–59 (citing Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir.
2003)). A retaliation claim under the ADA follows the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Williams, 380 F.3d at 760 n.3.
Defendants present a single argument for why they are entitled to summary judgment on
Reyer’s ADA retaliation claim. Defendants urge that Reyer cannot meet his burden of
establishing that their professed reasons for terminating his employment were pretext for
disability discrimination. As discussed above in the context of Reyer’s FMLA retaliation claim,
genuine issues of material fact exist as to whether Defendants’ legitimate non-discriminatory
reasons for Reyer’s termination were merely pretext. As such, summary judgment on Reyer’s
ADA retaliation claim will also be denied.
For the foregoing reasons, Defendants’ motion for summary judgment will be denied. An
appropriate order follows.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?