EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. DEFENDER ASSOCIATION OF PHILADELPHIA

Filing 170

MEMORANDUM OPINION. SIGNED BY DISTRICT JUDGE CYNTHIA M. RUFE ON 8/29/2024. 8/29/2024 ENTERED AND COPIES E-MAILED.(ahf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Plaintiff,

CIVIL ACTION NO. 19-1803

v.
DEFENDER ASSOCIATION OF
PHILADELPHIA
Defendant.

Rufe, J.

MEMORANDUM OPINION

August 29, 2024

Plaintiff, the Equal Employment Opportunity Commission (“EEOC”), filed suit against
Defendant, the Defender Association of Philadelphia, alleging that the Defender Association
failed to provide “M.P.” 1 with a reasonable accommodation for her disability and terminated her
employment in violation of the Americans with Disabilities Act (“ADA”). 2 EEOC has moved to
exclude the Defender Association’s expert, Irene Mendelson, and both parties have moved for
summary judgment. For the reasons stated below, EEOC’s Motion to Exclude will be granted
and EEOC’s Motion for Summary Judgment will be granted in part and denied in part. The
Defender Association’s Motion for Summary Judgment will be denied.
I.

BACKGROUND
A. Case Facts
The Defender Association provides legal defense for indigent juveniles and adult

criminal defendants. In September 2007, charging party M.P. began working as a full-time staff

In light of some of the sensitive medical issues discussed and because the charging party is not a party to this
litigation, the Court will only use the charging party's initials throughout this Memorandum Opinion.

1

2

See Compl. [Doc. No. 1]; 42 U.S.C. § 12112.

attorney for the Defender Association. 3 M.P. was promoted multiple times over the years. In July
2012, the Defender Association promoted M.P. to Assistant Supervisor of the Juvenile Special
Cases section (“JSCS”) where her role involved defending juveniles charged with sex-based
crimes. 4 A year later, in July 2013, the Defender Association promoted M.P. to Supervisor of
Juvenile Special Cases Section. 5 In June of 2014, M.P. was assigned as a Sexually Violent
Predator Specialist. 6 In April 10, 2017, M.P. applied for and was again assigned to the position
of Supervisor of the Juvenile Special Cases Section. 7
On July 26, 2017, M.P. began therapy sessions with Laurie Patterson, a licensed clinical
social worker. 8 Two days later, the Defender Association approved M.P.’s medical leave of
absence under the Family and Medical Leave Act (“FMLA”). 9 Patterson diagnosed M.P. with
Post-Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder (“MDD”) on August
1, 2017. 10
The Defender Association’s employees are entitled to receive short-term disability
benefits. 11 Defendant’s short-term disability insurance policy provides for a maximum of 11

3

Statement of Stipulated Material Facts [Doc. No. 165] ¶ 1.

4

Id. ¶ 2

5

Id. ¶ 3.

6

Id. ¶ 4.

7

Id. ¶ 5.

8
Id. ¶ 6; see also EEOC’s Mot. Summ. J., Ex. 2, Patterson Dep. Tr. [Doc 127- 5] at 11; EEOC’s Mot. Summ. J., Ex.
3, Pennsylvania State Department Verification of Clinical Social Worker license [Doc. No. 127-6].
9

Statement of Stipulated Material Facts [Doc. No. 165] ¶ 7.

10

Id. ¶ 8.

11

See EEOC’s Mot. Summ. J., Ex. 6, Defender Association’s Open Enrollment Newsletter [Doc. No. 127-9].

2

weeks of coverage, after which the employee either may return to work or apply for long-term
disability. 12 M.P. was approved for short term disability benefits in the summer of 2017. 13
In October of 2017, Patterson prepared an Intake, Record Summary, and Assessment for
M.P. (“the October 2017 Medical Memorandum”). 14 In a section of the October 2017 Medical
Memorandum titled “Recommendations going forward,” Patterson wrote:
The plan is for [M.P.] to return to her job in January 2018. I am unable to
currently say at this time whether that is feasible, but if it is, I would recommend
that she phase in part time as it has been very hard for her to tolerate discussions
about work in our sessions, and the one time she went to the office, she had a
panic attack and was unable to go into the building.
I do not currently see that it would be wise or advisable for her to resume work in
any capacity where she needs to perform work in the previous role as related to
working as a mitigation specialist or trainer working with the sex offender
population. While [M.P.] has a passion for social justice she and the Defender
Association may be better served if she works in a less triggering unit at this
organization.
Thank you for your interest in this interesting and capable individual.
Please do not hesitate to contact me if you have any further questions or
concerns. 15
In November 2017, Patterson provided the October 2017 Medical Memorandum to
Lincoln Financial, Defendant’s short-term and long-term disability insurance provider, and
Lincoln approved M.P. for long term disability (“LTD”) benefits. 16 Internal records from Lincoln
indicated that M.P. had a potential return to work date of January 18, 2018, but that Lincoln
should check in with M.P. in November regarding the “progress or improvement on returning

12

Id.

13

Def.’s Reply Def.’s Mot. Summ. J., Ex. 9, September 13, 2017 Letter [Doc. No. 166-2].

14

Statement of Stipulated Material Facts [Doc. No. 165] ¶ 9.

15

Id. ¶ 10.

16

EEOC’s Mot. Summ. J., Ex. 11, Lincoln Chronological Activity List [Doc. No. 127-14].

3

back to work.” 17 Lincoln records also indicated that the vocational rehabilitation provider
terminated its services with M.P. “as claimant was non responsive to [voicemails] for [return to
work] intervention.” 18 Sherri Darden, the Defender Association’s Human Resources Manager,
was notified in November that M.P. had been approved for LTD benefits. 19 On November 17,
2017, at Darden’s request, M.P. provided Darden with Patterson’s October 2017 Medical
Memorandum. 20 After receiving this letter, Darden discussed next steps with HR Director Mark
Sappir. 21 On December 14, 2017, Darden sent M.P. a letter stating that she was being terminated
effective December 15, 2017. 22 M.P. remained on long term disability benefits until the fall of
2018. 23
II.

MOTION TO EXCLUDE
The Defender Association has produced the five-page expert report of Irene Mendelson, a

vocational counselor, and seeks to offer her expert testimony at trial. Although the Defender
Association originally stated that this report would opine on whether M.P. could perform the
essential functions of her job, 24 the report instead discusses the reasonableness of Defendant’s

17

Pl.’s Mot. Summ. J., Ex. 11, Lincoln Chronological Activity List [Doc. No. 127-14] at 4.

18

Id.

19

Pl.’s Mot. Summ. J., Ex. 15, Darden Dep. [Doc. No. 127-18] at 108–09.

20

Id. at 129–31.

21

Id. at 111–12.

22

Statement of Stipulated Material Facts [Doc. No. 165] ¶ 11.

23

Def.’s Reply Def.’s Mot. Summ. J., Ex. 18, Lincoln Letter, dated November 2, 2018 [Doc. No. 166-11].

See Def.’s Mot. Permit Its Expert to Interview Claimant [Doc. No. 87-1] at 4–5. An expert opinion that discussed
M.P.’s ability to perform the essential functions of her job would be directly relevant to the issues of the case. To
establish a prima facie case of discrimination, a plaintiff must establish that she: (1) is “disabled,” (2) is a “qualified
individual,” (3) has suffered an adverse employment action because of that disability. Buskirk v. Apollo Metals, 307
F.3d 160, 166 (3d Cir. 2002). The ADA defines a “qualified individual” as “an individual 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) (emphasis added).
24

4

decision to terminate M.P. (“the Termination Opinion”) and M.P.’s mitigation efforts after her
termination (“the Mitigation Opinion”). EEOC moves to exclude the report and expert testimony
of Mendelson, because her report and opinion (1) will not help the trier of fact understand the
evidence or determine a fact in issue; (2) are not based on sufficient facts or data; and (3) are not
reliable.
A. Legal Standard
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony
and provides that:
[a] witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if the proponent
demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and
methods to the facts of the case. 25
The focus of the Court’s inquiry must be on the expert’s methods, not the expert’s
conclusions. The Third Circuit has interpreted Rule 702 as setting forth three requirements:
(1) the expert must be qualified; (2) the expert must testify about matters requiring scientific,
technical, or specialized knowledge; and (3) the expert’s testimony must assist the trier of fact. 26
The proponent of the expert testimony has the burden to show by a preponderance of the
evidence that their expert’s opinion is reliable. 27 District courts have “broad discretion in

25

Fed. R. Evid. 702.

Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008); accord In re Paoli R.R. Yard PCB Litig., 35 F.3d
717, 741–43 (3d Cir. 1994).

26

27

Oddi v. Ford Motor Co., 234 F.3d 136, 144 (3d Cir. 2000).

5

determining the admissibility of evidence, and ‘considerable leeway’ in determining the
reliability of particular expert testimony . . . .” 28
Under the first requirement, “a broad range of knowledge, skills, and training qualify an
expert as such.” 29 However, courts have rejected the idea that witnesses offered as experts must
meet “overly rigorous requirements of expertise,” so long as they have “more generalized
qualifications.” 30 Under the second requirement, “an expert’s testimony is admissible so long as
the process or technique the expert used in formulating the opinion is reliable.” 31 An expert’s
opinion is reliable if it is “based on the ‘methods and procedures of science’ rather than on
‘subjective belief or unsupported speculation . . . .’” 32 The experts must have good grounds for
their opinions, but not necessarily the best grounds or unflawed methods. 33 District courts
consider several factors in determining reliability, including:
(1) whether a method consists of a testable hypothesis; (2) whether the method has been
subject to peer review; (3) the known or potential rate of error; (4) the existence and
maintenance of standards controlling the technique's operation; (5) whether the
method is generally accepted; (6) the relationship of the technique to methods which
have been established to be reliable; (7) the qualifications of the expert witness
testifying based on the methodology; and (8) the non-judicial uses to which the
method has been put. 34

Walker v. Gordon, 46 F. App’x 691, 694 (3d Cir. 2002) (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137,
152–53 (1999)).
28

29

Paoli, 35 F.3d at 741.

30

Id.

31

Id. at 742.

32

Id. (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)).

33

See Holbrook v. Lykes Bros. S.S. Co., 80 F.3d 777, 784 (3d Cir.1996); Paoli, 35 F.3d at 744–45.

34

Pineda, 520 F.3d at 247–48 (citing Paoli, 35 F.3d at 742 n.8).

6

Under the third requirement—whether the expert’s testimony will assist the trier of fact—
“the Court must determine the ‘fit’ of the expert’s testimony as it relates to the case at
hand. . . .” 35 The fit requirement “goes primarily to relevance.” 36
B. The Termination Opinion
Mendelson’s opinion on the reasonableness of Defendant’s decision to terminate M.P.
does not “fit” the case at hand and therefore, will not help the trier of fact understand the
evidence or determine a fact in issue. Mendelson opines that the Defender Association’s decision
to terminate M.P. was “reasonable” because “[M.P.’s] diagnoses amounted to a disability that
made her unable to work as an attorney.” 37
The essential questions for the jury in this case will be (1) whether M.P. was a “qualified”
individual under the ADA, defined as an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires 38 and (2) whether Defendant failed to accommodate M.P. 39
Mendelson’s report does not shed light on these questions. Mendelson relies on largely irrelevant
facts to reach her conclusion. Mendelson provides four reasons to undergird her opinion that the
termination of M.P. was “reasonable”: (1) In late November 2017 when the termination was
decided, M.P. was not able to work due to her disability; (2) M.P. or her therapist, Laurie
Patterson, could have objected to the termination prior to its actual occurrence, but neither did;

35

Macaluso v. Apple, Inc., No. 21-1361, 2023 WL 4685965, at *4 (E.D. Pa. July 21, 2023).

36

Daubert, 509 U.S. at 591.

37

Pl.’s Mot. Exclude, Ex. 7, Mendelson Report [Doc. No. 129-8] at 3.

38

42 U.S.C. § 12111(8).

A failure to accommodate claims requires a determination of whether: (1) M.P. was disabled, (2) requested
accommodations, (3) the Defender Association did not make a good faith effort to assist, and (iv) whether the
Defender Association could have reasonably accommodated M.P. See Capps v. Mondelez Global, LLC, 847 F. 3d
144, 157 (3d. Cir. 2017).

39

7

(3) M.P. had been approved for STD and LTD benefits, which meant that she could not work as
an attorney when she was terminated; and (4) M.P. continued to receive LTD benefits until the
fall of 2018 and that “while it was obviously unknown by [Defendant] at the time of termination
how long [M.P.] would remain disabled from working as an attorney, the length of time now
known that she was disabled from engaging in that work lends strong support to the
appropriateness of the decision.” 40
Mendelson’s first reason—that M.P. was unable to work in November 2017 due to a
disability—is undisputed. The fact that M.P. was not able to work due to a disability, while on
disability leave, cannot factor into a decision on whether her termination was “reasonable.” 41
Instead, the relevant inquiry is “whether the amount of time requested off [was] reasonable such
that it would allow the employee to perform . . . her essential job functions in the near future.” 42
Second, Mendelson claims that M.P. and her therapist Patterson had an opportunity to
object to the termination prior to its occurrence, and since they did not, this is indicative of the
reasonableness of Defendant’s termination decision. Such inferences are for the jury and there is
nothing about Mendelson’s expert background that provides her with additional knowledge to
adduce a conclusion based on this fact. 43

40

Pl.’s Mot. Exclude, Ex. 7, Mendelson Report [Doc. No. 129-8] at 4.

See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 150–51 (3d Cir. 2004) (distinguishing the New
Jersey Administrative Code, which does not require employers to provide accommodations when the employee
“cannot presently perform the job even with reasonable accommodation,” from the ADA, under which leave is a
reasonable accommodation); 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 . . . .”).
41

42

Sowell v. Kelly Services, Inc., 139 F. Supp. 3d 684, 701 (E.D. Pa. 2015) (citations and quotations omitted).

See Oddi v. Ford Motor Co., 234 F.3d 136, 159 (3d Cir. 2000) (“As a general principle, [e]xpert evidence is not
necessary . . . if all the primary facts can be accurately and intelligibly described to the jury, and if they, as [persons]
of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions
from them as are witnesses possessed of special or peculiar training of the subject under investigation.”) (citations
and quotations omitted).

43

8

Mendelson’s third reason for determining that the Defender Association’s termination
decision was reasonable is that M.P. was awarded short-term and long-term disability benefits
prior to the termination. The fact that M.P. received disability benefits does not in itself establish
that she could not perform the essential functions of a job with reasonable accommodation after a
certain time. To the extent it is relevant, it is within the province of the jury.
Mendelson’s fourth reason is that M.P. continued receiving long-term disability benefits
for nearly a year after she was terminated and that she remained in treatment. “In determining
whether a leave request is a reasonable accommodation, the prospect of the employee's recovery
from treatment or enablement to return to work should not be judged by hindsight, but rather, by
what reasonably appears at the time the leave is requested.” 44 Relying on the LTD benefits M.P.
received after her termination is improper because it depends on information unknown to the
Defendant at the time of M.P.’s termination and discounts potentially new reasons for her
continuation of LTD benefits. 45
The Defender Association argues that the Court should not exclude expert testimony
simply because EEOC disagrees with the underlying facts or conclusions contained in the report,
and instead that the Court should focus “solely on principles and methodology.” 46 However,
Mendelson does not explain what methodology she employed in reaching her conclusions. Since
Mendelson relies on largely irrelevant facts, does not state a methodology, and reaches a

Gibson v. Lafayette Manor, Inc., No. 05-1082, 2007 WL 951473, at *23, n.16 (W.D. Pa. Mar. 27, 2007) (citations
omitted).
44

In fact, Patterson testified that M.P.’s therapy plans changed in part due to the stress caused by the termination.
EEOC’s Mot. Exclude, Ex. 3, Patterson Dep. Tr. [Doc 129- 4] at 77–78, 82–84. This was wholly unaddressed in the
expert report.
45

46

Def.’s Resp. Opp’n. Pl.’s Mot. Exclude [Doc. No. 137] at 4–5 (quoting Daubert, 509 U.S. at 580).

9

conclusion that would be unhelpful to a jury, her opinion on the reasonableness of the Defender
Association’s termination decision will be excluded.
C. The Mitigation Opinion
In the final paragraph of the five-page expert report, Mendelson concludes that M.P.’s
mitigation efforts were below appropriate job search efforts. Mendelson states that her opinion is
based on “multiple factors including the very low unemployment rate (particularly for
individuals with higher levels of education), and that according to data provided by both the U.S.
Department of Labor, the Office of Occupational Statistics and Employment Projects, and
Chron., 47 employment opportunities for attorneys were projected to grow at a high-very high
rate.” 48 Mendelson opines that M.P. should have obtained full-time employment within three to
six months after she stopped receiving LTD benefits in November 2018.
Mendelson does not clarify whether the “multiple factors” that she relied on were solely
the data from the mentioned sources or whether she used additional factors. Nor does Mendelson
attach the specific rates and data that she relies upon, leaving the Court in the dark as to how she
employed the data in her analysis. Mendelson does not articulate any methodology for reaching
her conclusion. Instead, the Court must guess how “multiple factors” led her to conclude that
M.P. should have been employed within three to six months after she stopped receiving benefits.
Because the mitigation opinion is conclusory and will not assist the trier of fact, it will be
excluded. This does not preclude the Defender Association from producing admissible and
relevant evidence of mitigation at trial.

47

Mendelson does not define “Chron.”

48

Pl.’s Mot. Exclude, Ex. 7, Mendelson Report [Doc. No. 129-8] at 4.

10

III.

SUMMARY JUDGMENT
The parties have filed cross-motions for summary judgment on EEOC’s two claims

brought pursuant to the ADA: (1) that the Defender Association terminated M.P. on the basis of
her disability and (2) that it failed to provide her with reasonable accommodation. EEOC also
seeks summary judgment on the Defender Association’s First Affirmative Defense, regarding
administrative prerequisites. In addition, the Defender Association moves for summary judgment
on EEOC’s request for injunctive relief, asserting that the claim is moot, and to limit the damages
that may be awarded.
A. Legal Standard
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted if there
is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of
law. 49 A fact is “material” if resolving the dispute over the fact “might affect the outcome of the
suit under the governing [substantive] law.” 50 A dispute is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” 51
A court “must view the facts in the light most favorable to the non-moving party,” and
make every reasonable inference in that party’s favor. 52 Further, a court may not weigh the
evidence or make credibility determinations. 53 Nevertheless, the party opposing summary
judgment must support each essential element of the opposition with concrete evidence in the

49

See Fed. R. Civ. P. 56(a).

50

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

51

Id.

52

Hugh v. Butler Cnty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citation omitted).

53

Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).

11

record. 54 “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” 55
B. Wrongful Termination
The ADA prohibits employers from discriminating against any qualified individual on the
basis of their disability. 56 In the absence of direct evidence, the McDonnell Douglas burden
shifting framework applies to discrimination claims under the ADA. 57 To make out a prima facie
case of discrimination under the ADA, EEOC must show that M.P.: (1) was disabled, 58 (2) was a
qualified individual, and (3) suffered an adverse employment action because of that disability. 59
For the purposes of summary judgment, both parties agree that M.P. was disabled and that her
termination constituted an adverse employment action.
The Defender Association and EEOC dispute whether M.P. was a “qualified” individual.
A two-part test is used to determine whether a person is qualified: “[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,

54

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

55

Anderson, 477 U.S. at 249–50 (internal citations omitted).

56

42 U.S.C. § 12112(a).

See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir.
2000) (apply McDonnell Douglas to an ADA claim). Under the burden shifting framework, the Plaintiff must first
establish a prima facie case. After this, the burden of production shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its decision. If the defendant meets this burden, the plaintiff must point to some
evidence, direct or circumstantial, from which a factfinder could reasonable 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. See Fuentes v. Perksie, 32 F.3d 759, 763 (3d Cir. 1994).
57

A “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or more of the
major life activities of [an] individual; (B) a record of such impairment; or (C) being regarded as having such an
impairment. . . .” See 42 U.S.C. 12102(2).
58

59

Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d Cir. 2002).

12

with or without reasonable accommodation.” 60 Neither party disputes that M.P. had the necessary
prerequisites and skills for the job or that she dutifully served as a public defender up until the
date of her medical leave.
Defendant argues that M.P. was not a qualified individual because she was unable to
perform the essential duties of her job at the date of her termination in December 2017.
However, since M.P. was on a medical leave of absence at the time of her termination, the
appropriate inquiry is not whether she was able to perform the essential duties of her job in
December 2017. 61 Instead, the Court must focus on whether the amount of time off M.P.
requested was reasonable such that it would allow “the employee to perform . . . her essential job
functions in the near future.” 62
A material factual dispute remains as to whether M.P.’s time off request was reasonable.
While a leave of absence may constitute a reasonable accommodation under the ADA, a leave of
absence for an indefinite period of time is not a reasonable accommodation. 63 EEOC maintains
that M.P. would have been able to perform the essential duties of her job if she were granted two

60

Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998) (quotations and citations omitted).

61
Generally, courts consider if the individual can perform the job’s essential functions at the time the employment
decision was made. Id. at 580. However, this is not the appropriate timeframe to analyze a claimant’s ability to
perform her job if she is on a reasonable leave of absence. See Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.
3d 135, 151 (3d Cir. 2004) (“[T]he federal courts that have permitted a leave of absence as a reasonable
accommodation under the ADA have reasoned . . . that applying such a reasonable accommodation at the present
time would enable the employee to perform his essential job functions in the near future.”); 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 [claimant] 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 [claimant].”); Shannon v. City of Philadelphia,
No. 98–5277, 1999 WL 1065210, at *6 (E.D. Pa. Nov. 23, 1999) (“Viewing the evidence in the light most favorable
to [plaintiff], the court finds that a reasonable jury could conclude that [plaintiff's] request for an additional three
months of unpaid leave for medical treatment was a reasonable accommodation.”); Gibson v. Lafayette Manor, Inc.,
No. 05-1082, 2007 WL 951473, at *7 (W.D. Pa. Mar. 27, 2007) ( “[T]he fact that [the employee] could not return to
work in any capacity at the expiration of her FMLA leave is not dispositive of whether she is a ‘qualified
individual’”).
62

Sowell v. Kelly Services, Inc., 139 F. Supp. 3d 684, 701 (E.D. Pa. 2015) (citations omitted).

Fogleman v. Greater Hazleton Health Alliance, 122 Fed. Appx. 581, 585–86 (3d Cir.2004) (holding that an
indefinite or open-ended leave “does not constitute a reasonable accommodation”).

63

13

accommodations: to remain on medical leave until January 2018 and to be transferred to an
available position that did not require her to work on cases involving sex crimes. 64 Defendant
claims that M.P. was not planning on returning to work in January 2018 and was instead seeking
indefinite leave. Defendant bases this claim on her therapist’s October 2017 Medical
Memorandum, which states, in part, that “[t]he plan is for [M.P.] to return to her job in January
2018. I am unable to currently say at this time whether that is feasible.” 65
Viewing the evidence in the light most favorable to EEOC, a reasonable jury could
conclude based on the October 2017 Memorandum that M.P. could return in January 2018 with
accommodation. EEOC’s argument is bolstered by the fact that Patterson testified in her
deposition that the “feasibility” language in the letter was about M.P. returning to her previous
role involving sex crimes (not about her start date in January 2018) 66 and that, if Defendant had
contacted her, Patterson would have clarified that M.P. could return to work in January 2018 if
she were placed in a non-sex crimes unit. 67
However, viewing the evidence in the light most favorable to the Defender Association, a
reasonable jury could conclude that it was unlikely that M.P. could return to work in January
2018 and that she would require disability leave for an undefined period. The Defender
Association’s interpretation of the letter is supported by M.P.’s verification on her LTD form that

Pl.’s Mot. Summ. J. [Doc. No. 127-1] at 1. EEOC is required to establish that M.P. was able to perform the
essential functions of the alternative position when she returned. See Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir.
1997) (“As we held in Shiring, the employee has the duty to identify a vacant, funded position whose essential
functions he is capable of performing. Shiring, 90 F.3d at 832. But we do not suggest that the employee has the
burden of identifying an open position before the employer's duty of accommodation is triggered. In many cases, an
employee will not have the ability or resources to identify a vacant position absent participation by the employer.
Simply put, a disabled employee seeking reassignment will be best served by employer and employee working
together to identify suitable positions.”).
64

65

Statement of Stipulated Material Facts [Doc. No. 165] ¶ 10.

66

EEOC’s Mot. Summ. J., Ex. 2, Patterson Dep. Tr. [Doc 127- 5] at 100.

67

Id. at 68–69.

14

she was “totally disabled” and the fact that—as written in the October 2017 Medical
Memorandum—she had a panic attack the one time she had attempted to enter the office
building that fall. 68 These are questions that must be resolved at trial.
Under the McDonnell Douglas framework, after a prima facie case has been established,
“the burden shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason’” for
the adverse action against the employee. 69 Defendant contends that it terminated M.P. for a nondiscriminatory reason, namely that M.P. was seeking an unreasonable accommodation of
indefinite leave. 70 As explained above, a reasonable jury could conclude that the Defender
Association had a legitimate basis for the termination. Shifting back to EEOC’s burden to show
that the real reason was discriminatory, EEOC maintains that M.P. was terminated solely because
she signed up for LTD benefits, which would be discriminatory because it foregoes the ADA’s
requirement of an interactive process and “targets qualified individuals with disabilities for
termination.” 71 However, the evidence establishes that there were discussions in the fall of 2017
about M.P.’s accommodation requests. Furthermore, M.P. was later non-responsive to Lincoln
Financial’s voicemails about return-to-work intervention. 72 The conflicting evidence requires the
Court to deny summary judgment on the disability claim. A jury must decide what happened and
whether M.P. sought a reasonable accommodation.

See Def.’s Reply Def.’s Mot. Summ. J., Ex. 17 [Doc. No. 166-10]; Statement of Stipulated Material Facts [Doc.
No. 165] ¶ 10.
68

69

McDonnell Douglas, 411 U.S. at 802.

70

Def.’s Reply Supp. Def.’s Mot. Summ. J. [Doc. No. 166] at 20.

71

Pl.’s Resp. Opp’n. Def.’s Mot. Summ. J. [Doc. No. 150] at 10.

72

Pl.’s Mot. Summ. J., Ex. 11, Lincoln Chronological Activity List [Doc. No. 127-14] at 4.

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C. Failure to Accommodate Claim
Under the ADA, a failure to make a reasonable accommodation for a disabled and
qualified employee constitutes discrimination. 73 As stated above, there is a material factual
dispute as to whether M.P. was a qualified individual. If a jury were to find that M.P. was a
qualified individual because she sought leave only until January 2018, then EEOC must establish
the following elements for a failure to accommodate claim: (1) M.P. was disabled and her
employer knew it; (2) she requested an accommodation or assistance; (3) her employer did not
make a good faith effort to assist; and (4) she could have been reasonably accommodated. 74
Neither party disputes that M.P. was disabled and requested an accommodation.
The parties disagree on whether the Defender Association made a good faith effort to
assist. “Reasonable accommodation . . . 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.’” 75 “Once the employer knows of the disability and
the employee's desire for accommodations, it makes sense to place the burden on the employer to
request additional information that the employer believes it needs.” 76
The Defender Association initially engaged in an interactive process with M.P. However,
this changed in November 2017, after Darden requested and received Patterson’s October 2017
Memorandum and M.P. was approved for long term disability benefits. The record is unclear as
to whether M.P. planned to return to work in January 2018. Lincoln Financial records, dated

73

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir. 1999).

74

See Capps v. Mondelez Global, LLC, 847 F. 3d 144, 157 (3d. Cir. 2017).

75

Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004) (internal citations omitted).

76

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315 (3d Cir. 1999).

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December 11, 2017, indicate that M.P. was not responsive to voicemails for return-to-work
intervention. 77 Thereafter, Defendant terminated M.P., effective December 15, 2017.
The remaining question is whether M.P. could have reasonably been accommodated
without placing an undue burden on the Defender Association. If a jury concluded that M.P. was
seeking indefinite leave, then a jury would likely find that such a request poses an undue
hardship on the defendant, as it is not reasonable for the Defender Association to hold open a
position for M.P. indefinitely. 78
When a claimant is seeking a transfer to a different position, “the plaintiff bears the
burden of demonstrating: (1) that there was a vacant, funded position; (2) that the position was at
or below the level of the [claimant’s] former job; and (3) that the [claimant] was qualified to
perform the essential duties of this job with reasonable accommodation. If the employee meets
[her] burden, the employer must demonstrate that transferring the employee would cause
unreasonable hardship.” 79 A reasonable jury can conclude that it would not have been an undue
burden on the Defender Association to transfer M.P. to a different position in January 2018, if
that was in fact the accommodation she requested. Because, as explained above, the question of
indefinite leave is a jury question, summary judgment on the failure to accommodate claim will
be denied.
D. Defendant’s First Affirmative Defense
EEOC also moves for summary judgment on Defendants first affirmative defense, which
states that “EEOC failed to meet its duty of good faith conciliation efforts between the parties.” 80
77

Pl.’s Mot. Summ. J., Ex. 11, Lincoln Chronological Activity List [Doc. No. 127-14] at 4.

Fogleman v. Greater Hazleton Health Alliance, 122 Fed. Appx. 581, 585–86 (3d Cir. 2004) (holding that an
indefinite or open-ended leave “does not constitute a reasonable accommodation”).
78

79

Donahue v. Consolidated Rail Corp., 224 F.3d 226, 230 (3d Cir. 2000).

80

Ans. [Doc. No. 26] at 11.

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Defendant admits that EEOC engaged in conciliation efforts, but claims that such efforts were
not done in good faith. 81 EEOC seeks summary judgment on this defense because such an
argument is foreclosed by Mach Mining, LLC v. EEOC, which held that the conciliation
requirement “eschew[s] any reciprocal duties of good faith negotiations.” 82 Defendant does not
refute this or respond to this argument. Therefore, summary judgment will be granted in favor of
EEOC as to Defendant’s first affirmative defense.
E. Injunctive Relief and Damages
Defendant seeks summary judgment on EEOC’s request for injunctive relief, arguing that
such relief is moot because, during this litigation, the Defender Association implemented all the
noneconomic changes that EEOC is requesting. 83 Summary judgment will be denied for two
reasons. First, “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of
power to hear and determine the case, i.e., does not make the case moot.” 84 The mere fact that
the Defender Association engaged in remedial action after it had been sued does not necessarily
provide adequate assurances that it will not repeat an alleged violation in the future. Second,
EEOC actively contests that the Defender Association has implemented all the changes that it
seeks, including a policy that specifically acknowledges medical leave as an available
accommodation. 85 For these reasons, the Court denies summary judgment on EEOC’s claim for
injunctive relief.

81

Ans. [Doc. No. 26] at 5–6.

82

575 U.S. 480, 491 (2015).

See Compl. [Doc. No. 1] at 8 (seeking, inter alia, a permanent injunction to preclude violation of the ADA,
institution of policies, practices, and programs to eradicate unlawful employment practices, including an ADA
policy that identifies medical leave as a possible accommodation).

83

84

Defunis v. Odegaard, 416 U.S. 312, 318 (1874) (citations and quotations omitted).

85

Pl.’s Resp. Opp’n. Def.’s Mot. Summ. J. [Doc. No. 150] at 23.

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Next, Defendant argues that M.P. is not entitled to back or front pay damages. 86 First,
Defendant argues that, even if it prematurely terminated M.P., she would only be entitled to one
month of back pay because it terminated her in December 2017, one month before she was
supposedly planning to resume work. Defendant uses an incorrect definition of backpay to reach
such a conclusion. Back pay accrues “from the time of discrimination until trial,” though it stops
accruing “[w]hen a plaintiff finds employment that is equivalent or better than the position she
was wrongly denied . . . .” 87 Back pay would not be calculated based on the time between her
termination and the date that she allegedly was set to return to work. Second, Defendant argues
that front pay damages are “cut off” because Defendant offered to reinstate M.P. and M.P. failed
to mitigate her damages. Such an argument is premature at this stage as there are material
disputes as to whether (1) the Defender Association offered to reinstate M.P. with the required
level of specificity and (2) whether M.P. failed to mitigate her damages. Summary judgment will
be denied as to the scope of possible relief.
IV.

CONCLUSION
For the reasons stated above, EEOC’s Motion to Exclude will be granted and EEOC’s

Motion for Summary Judgment will be granted as to Defendant’s First Affirmative Defense and
otherwise denied. The Defender Association’s Motion for Summary Judgment will be denied. An
order will be entered.

Defendant argues for the first time about punitive damages in its reply. Therefore, such an argument is waived.
See Laborers’ Int’l Union of N. Am. V. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994).
86

87

Donolin v. Philips Lighting North America Corp., 581 F.3d 73, 84–86 (3d Cir. 2009).

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