FUOCO v. LEHIGH UNIVERSITY
MEMORANDUM AND ORDER THAT SUMMARY JUDGMENT IN FAVOR OF LEHIGH WAS GRANTED AS TO ALL OF FUOCO'S CLAIMS; ETC.. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 11/8/13. 11/8/13 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
November 8, 2013
Plaintiff, D’Anna Fuoco, has filed this employment discrimination action against her
former employer, Lehigh University. Fuoco contends that she was subject to discrimination on
the basis of her disabilities – namely, depression and attention deficit disorder (“ADD”) – in
violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the
Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951, et seq.1 By order dated September
30, 2013, I granted defendant’s motion for summary judgment. This memorandum sets forth the
rationale for that decision.
D’Anna Fuoco was hired by Lehigh in September 1997, as an office manager in the
Department of Transition and Assessment Services. In 2002, she applied for and accepted a
secretary position in the Office of Admissions and remained in that role until January 2008,
In her complaint and amended complaint, Fuoco alleges that she “suffers from stress and memory lapses.”
See Am. Compl. ¶ 36. She mentions no other disorder or medical condition. However, in Fuoco’s response to
Lehigh’s motion for summary judgment, she clearly states that she “suffers from Attention Deficit Disorder and
Depression” and does not argue that any other condition qualifies as a disability under the statute. See Pl.’s Br. at 3.
I will therefore consider only ADD and depression with respect to Fuoco’s claims.
Fuoco also alleged in her complaint violations of the Age Discrimination in Employment Act and related
state law, but she later voluntarily withdrew her age discrimination claims.
Where the facts are agreed, I have not cited to the record.
when she began working as a coordinator in Lehigh’s Office of Multicultural Affairs. Fuoco’s
employment with Lehigh was terminated on September 23, 2010.
Fuoco’s history of medical issues, including alleged physical and mental impairments, as
well as her relevant work-performance record, are described below.
A. Department of Transition and Assessment Services
Fuoco concedes that from 1997 to 2002, while working in the Department of Transition
and Assessment Services, she never notified any of her supervisors of any disabilities or
impairments. Pl.’s Response to Def.’s Statement of Undisputed Facts (“Pl.’s Facts”) ¶ 4. The
record does not reflect that Fuoco was diagnosed with any impairment during this time, and
Fuoco does not contend that any alleged disability impacted her daily life, including her work
performance. See Fuoco Dep. at 20 (testifying she was not aware of her disabilities during this
time); id. at 17-18 (noting that her performance appraisals were average).
B. Office of Admissions
While Fuoco was employed in the Office of Admissions, from 2002 to 2007, she was
supervised by Lisa Dubreuil and Bruce Bunnick. Fuoco’s work performance was satisfactory
until late-2005. Around September 2005, Fuoco was assigned additional responsibilities because
another employee in the department was terminated. Overwhelmed by the added duties, Fuoco
asked Dubreuil if she could be relieved from answering the phones because it distracted her from
her other work. See Fuoco Dep. at 27-28. Dubreuil denied her request.
A month later, on October 29, 2005, Fuoco and Dubreuil met and Fuoco was
reprimanded for poor work performance. During this meeting, Dubreuil discussed with Fuoco
the various problems observed with her work, focusing on areas related to communication,
organization, and follow through, as well as attention to detail. See Def.’s Br., Exh. C. Dubreuil
determined that she and Fuoco would meet on a weekly basis to monitor Fuoco’s progress and
Fuoco was warned that if she did not improve, she would receive a formal warning. Id.
Thereafter, prior to Christmas 2005, Fuoco received a poor performance evaluation and
was placed on probation. It is unclear exactly how long this probation period lasted or what took
place between Fuoco and her supervisors, but presumably she completed the necessary
probationary period. There is nothing else in the record related to Fuoco’s work performance
leading up to her departure from the Office of Admissions at the end of 2007.
In explaining what led to the above-mentioned disciplinary issues and work-related
problems, Fuoco testified that in late 2005 she was experiencing significant stress at home as she
was caring for her daughter who nearly died from an overdose, as well as the added stress at
work caused by her new duties. Fuoco Dep. at 30-31. In early 2006, Fuoco took a four month
leave of absence, either under the Family and Medical Leave Act (“FMLA”) or short-term
disability, in order to care for her daughter. Id. at 36. Fuoco testified that despite taking the
leave to care for her daughter, she “might have lied” to Lehigh as to the reason and recalled
submitting a physician’s certificate wherein the doctor “wrote [her] an excuse to take time off”
and believed that the doctor said she was depressed. Id. at 36-37. Fuoco took the leave without
any difficulty from Lehigh. Id. at 37.
Fuoco also submitted as part of the record a letter addressed to her then-supervisor,
Dubreuil, copying Eric Kaplan in Human Resources, dated May 13, 2005, apologizing for “the
position I put you and my coworkers in due to my absences over the past six months.” Pl.’s Br.,
Doc. 23-7.3 In the letter, Fuoco explained that she had experienced a nervous breakdown earlier
in the year and had missed work due to “health and personal problems,” noting that she was
As plaintiff did not itemize her exhibits, I will refer to them by their docket numbers and/or Bates
numbers, whichever is available and provides the clearest reference.
seeking medical help to get her “life back on track.” Id. Fuoco further stated, “[d]epression and
anxiety are hard things for people to understand if they never experienced them” and that she had
“been very open about my situation to try and ease the tension between myself and my
At her deposition, Fuoco stated that during this time she was unaware of any underlying
learning disability, such as ADD, or any stress disorder. Fuoco Dep. at 32. Indeed, Fuoco
acknowledged that she thought any problems she was experiencing were due to her alcohol and
drug addiction. Id. Other than the May 13, 2005 letter addressed to Dubreuil, Fuoco did not
testify that she informed her supervisors of any other mental impairment she was experiencing.
Fuoco also testified about having filled out FMLA paperwork at some point and listing
alcoholism and depression as the reason for her potential leave. This paperwork was not
provided as part of the record, but Fuoco thought she completed it after returning from the leave
to care for her daughter in 2006. Id. at 38, 53. It is clear that Fuoco never actually took this
particular FMLA leave. Pl.’s Facts ¶ 21 (“[Plaintiff] believed having the paperwork in place
would protect her. Yet, Plaintiff never ended up taking FMLA leave.”). Fuoco explained that
she filled out the paperwork just in case she needed it and thought she submitted it to Human
Resources and might have explained her situation to Peter Hinkle, a Human Resources associate.
Fuoco Dep. at 53. Fuoco also believed that, along with the FMLA paperwork, she might have
submitted a written diagnosis from her physician, Dr. Eric Becker, who had just recently
diagnosed her with depression. Id. at 53-56. Fuoco saw Dr. Becker for treatment during the
early part of 2006 while she was out caring for her daughter, and was prescribed a “general
antidepressant.” Id. at 59.
Fuoco also believed that she started seeing a physician during this time period for the
treatment of migraine headaches. Id. at 64-65. She testified that all of her co-workers, as well as
several of her supervisors, were aware she experienced migraines. Id. at 77. Finally, around
October 2007, Fuoco was involved in a car accident and was injured. While she did not receive
surgery for these injuries until 2009, she testified that she thinks she may have taken a couple of
days or a week medical leave around the time of the accident. Id. at 46-47.
C. Office of Multicultural Affairs
Fuoco began working in the Office of Multicultural Affairs as a coordinator on January 3,
2008. Her job responsibilities included coordinating events and meetings, maintaining the office
calendar, including that of her supervisor, and making arrangements for various student
activities. Def.’s Statement of Undisputed Facts (“Def.’s Facts”) ¶ 16; Fuoco Dep. at 133.
Fuoco was supervised initially by John McKnight and later by Jame’l Hodges. Def.’s Facts ¶
17-18. Alison Gelati was Hodges’s supervisor.
Fuoco’s employment during 2008 appears to have been without incident. Fuoco’s first
full-year appraisal was satisfactory, but her then-supervisor noted concerns due to her
absenteeism. Fuoco explained that this absenteeism was due to having doctors’ appointments
and physical therapy stemming from her earlier car accident, as well as her other physical
ailments including a heart murmur and migraine headaches. Fuoco Dep. at 71-74. According to
Lehigh, Fuoco’s next performance appraisal, for the year ending December 31, 2009, reflected a
rating of “needs improvement” and contained comments from her then-supervisor, Hodges, as to
excessive absences and “balancing personal and work related issues.” Zavalydriga Aff. ¶ 16.
In April 2009, Fuoco underwent surgery to alleviate the pain she was experiencing from
a crushed or herniated disc that was a result of the 2007 car accident. Fuoco Dep. at 71-72; Pl.’s
Br., Doc. 23-8. Fuoco took leave for this surgery and subsequent recovery, although it is unclear
whether that leave was under FMLA, short-term disability, vacation, or a combination thereof.
See Pl.’s Br., Doc. 23-8 (Fuoco’s short-term disability paperwork); LU 000275; Doc. 23-9 (April
1, 2009 letter from Human Resources notifying Fuoco that her current leave was being
designated as FMLA leave).4 In any event, Fuoco returned to work part-time in July 2009 and
then later returned to work full-time around August 2009. See id., Doc. 23-14, LU 000255; Doc.
23-17, LU 000292.5 Fuoco acknowledges that Lehigh accommodated her medical needs by
allowing her to take time to recover from her surgery. Fuoco Dep. at 71-72 (testifying that she
“took as much time as [she] needed to commit to [her] physical therapy and doctors’
appointments, all of which had to be made during the day”).
Moreover, the record reflects that throughout the remainder of 2009 and the first half of
2010, Fuoco was never denied the opportunity to take time off or miss work for any
appointments. In fact, the opposite is true as Lehigh permitted Fuoco to often miss work due to
her own and her family’s medical needs. See, e.g., Pl.’s Br., LU 000256 (August 26, 2009 return
to work doctor’s note due to “illness”); LU 000259 (September 11, 2009 doctor’s note from an
ob/gyn providing an excuse from work); LU 000273 (November 24, 2009 email from Fuoco to
Hodges regarding her making a “last minute” doctor’s appointment over her lunch hour); LU
000263 (January 11, 2010 email from Fuoco to Hodges concerning her eye problems and need to
see an ophthalmologist); LU 000268 (March 24, 2010 email to Hodges regarding a dentist
appointment); LU 000266-267 (April and May 2010 emails to Hodges that she will be taking
While this letter does not include dates for the “current leave” referred to or the reason for the leave, the
timing corresponds with Fuoco’s leave for her back surgery and Fuoco does not explain for what other reason she
would have taken FMLA leave at that time.
Similarly, these emails and other documents appear to be related to the leave for her back surgery – as
they do not refer to any other illness or medical issue and Fuoco has not indicated that they put her supervisors on
notice of any other problem. Moreover, a treatment plan submitted (Doc. 23-17) and signed by her physician
indicates a surgery date of April 27, 2009, and return to work date of July 6, 2009.
time off to care for her son after his oral surgery); LU 000258, LU000265 (July 2010 internal
email informing recipients that Fuoco was not coming to work due to a migraine and her plan to
see a doctor, and corresponding emergency room form providing an excuse from work on that
day). Indeed, Fuoco’s attorney acknowledged during oral argument that there was nothing
Fuoco ever requested that was denied by Lehigh.
In addition to her excessive absences, in the summer of 2010, Fuoco’s work performance
deteriorated, and eventually she was terminated on September 23, 2010. More specifically, in
August 2010, Lehigh contends, and Fuoco agrees, the Office of Multicultural Affairs had
scheduled a trip for students to Dorney Park, a local amusement park, as part of its “Preclusion
Program,” which was an orientation program for new students. See Fuoco Dep. at 122. Fuoco
was tasked with reserving the admission tickets ahead of time, something she admits she failed to
do, resulting in the school’s having to pay more for the tickets at the gate. See id. at 122-125.
Additionally, on September 10, 2010, Fuoco and Hodges did not arrive for a mandatory
breakfast meeting because Fuoco failed to add it to either of their calendars. Id. at 133
(admitting she was responsible for keeping Hodge’s calendar). Although Fuoco was later
directed to attend the meeting, she failed to do so. Zavalydriga Aff. ¶ 20.
As a result of these incidents, Fuoco was placed on a Performance Improvement Plan
(“PIP”) on September 13, 2010. However, the same week she was placed on the PIP, Fuoco
made additional mistakes, including listing the wrong month for an event on the department’s
Facebook page and not purchasing CDs as directed for an orientation program. See Zavalydriga
Aff. ¶ 22-23. Then, on September 22, Fuoco failed to order food or decorations for the office’s
Hispanic Heritage Days event – another error she acknowledges that she committed. Fuoco Dep.
at 145 (admitting she did not order the food); Zavalydriga Aff. ¶ 25. Fuoco was out of the office
on vacation that day and failed to make the necessary arrangements beforehand. Fuoco Dep. at
145.6 Lehigh describes Heritage Days as one of the department’s most important events, and
considered her errors significant. See Def.’s Facts ¶ 37-38; Zavalydriga Aff. ¶ 25.
As a result, during a meeting on September 22, 2010, several people, including Fuoco’s
supervisors, the Dean of Students, the Vice Provost for Student Affairs, and an assistant general
counsel, met and made the decision to terminate Fuoco the following day, when she was
scheduled to work. Zavalydriga Aff. ¶ 26. The reason cited by Lehigh was that “the University
had lost confidence in her ability to effectively perform the duties of her position.” Id. ¶ 12.
On the morning of September 23, Fuoco called and left a voicemail for Hodges notifying
him that she was concerned for her well-being and would not be coming into work. Fuoco
testified that she also said in her message that she was “going to call my doctor and make an
appointment to be seen immediately, possibly even go to the hospital.” Fuoco Dep. at 158-59.
Then later that day, Lehigh notified Fuoco, through her boyfriend,7 that she was being
terminated. Id. at 159; Zavalydriga Aff. ¶ 29.
Fuoco started to realize around the month before her termination (i.e. August/September
2010) that something was wrong, but she did not know if it was her “disability or menopause.”
Fuoco Dep. at 49. She explained that after she forgot to put the staff meeting on Hodge’s
calendar, Fuoco spoke with both Hodges and Gelati and expressed her concern that something
was wrong with her. Fuoco stated that to Gelati she said she “might have a medical condition
going on” and that she was not sure “what is going on . . . whether it’s [her] age or a disability
[she’s] having.” Id. at 93-95. Asked what possible reasons she would have given, she said
According to one of Fuoco’s time sheets submitted as part of the record, September 20, 2010, was a
Monday and Fuoco was present at work. See Pl.’s Br., Doc. 23-12, LU 000246. Tuesday and Wednesday,
September 21 and 22, Fuoco took vacation, and Thursday, September 23, was designated as “sick leave/excused
Fuoco had no cell or home phone. Fuoco Dep. at 158-59.
“menopause, my age, and ADHD and I don’t think I said anything about my alcoholism.” Id. at
96. Fuoco also alleges that she told Gelati that while she was not sure exactly what was wrong
with her, she was “going to try and find out what it is so that I can be accountable in this
position.” Id. at 93-95.
Fuoco testified that she spoke with Hodges after the Dorney Park mishap and “told him
about the possibilities of what is going on” and that she was going to get tested. Id. at 125.8
Fuoco further explained, “I think I told him about my concerns, about the possibility of my
disability, menopause, get tested and find out what is going on with me.” Id. at 130. Fuoco
stated that she then followed up with Hodges after making some appointments in order to keep
him informed. Id. at 131-33.
When asked who initially diagnosed her with ADD, Fuoco was unsure whether it was Dr.
Abel Gonzalez or her neurologist, Dr. Gould. Id. at 64. Asked when she was specifically
diagnosed with ADD, Fuoco explained, “during the time I was terminated because I had the tests
approximately a month prior to my termination because of my concern . . . I don’t think [Dr.
Gould] actually came back with a diagnosis until after I was terminated.” Id. at 65-66. The
record does not include any reports from either physician.
After her termination, in early October 2010, Fuoco emailed human resources to inform
them that she was taking medical leave, and sent a doctor’s note as an excuse for not coming to
work from September 23 through October 5.
Fuoco testified she told Hodges that she was going to have a “mind stream test and a sleep study test.”
Fuoco Dep. at 130. Fuoco does not explain, however, what the tests have to do with ADD, whether she actually had
those tests, what the results were, or whether she ever told anyone at Lehigh about the results.
Eighteen months later, in April 2012,9 Fuoco saw Dr. Daniel Medlar, a licensed
psychologist, who completed an interview and administered several tests as part of a
“neuropsychological evaluation in order to assist with vocational/educational decision-making
and planning.” Def.’s Br., Exh. F. According to Dr. Medlar’s report, based on Fuoco’s
“reported history, diagnostic interview, and assessment results,” Fuoco then met the Office of
Vocational Rehabilitation (“OVR”) criteria for ADHD, predominately inattentive type. Id. In
addition to meeting the ADHD criteria, the report indicated “adjustment disorder with anxiety,”10
“depressive disorder not otherwise specified,” and “learning disorder not otherwise specified,” as
well as various alcohol and controlled substance dependences “sustained full remission.” Id.
STANDARD OF REVIEW
The standard for summary judgment is well established. I must consider the evidence in
the light most favorable to the non-moving party. If there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law, summary judgment is
appropriate. An issue is genuine only if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.
However, the non-moving party cannot rely on unsupported assertions, conclusory
allegations, or mere suspicions to defeat a summary judgment motion. Here, Fuoco must “do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). She “must
According to Fuoco’s facts, Dr. Gould’s test was administered in August 2011 and showed that she
suffered from cognitive disorders. Pl.’s Facts ¶ 45. This unsupported assertion is ultimately irrelevant as either
date, April 2012 or August 2011, follows her termination.
In her fact response, Fuoco disputes the date of her diagnosis with stress-related anxiety, stating that it
was 2006, despite testifying at her deposition that it was in 2012 as diagnosed by Dr. Medlar. See Fuoco Dep. at 58.
This factual dispute is again not relevant as “stress-related anxiety” is not one of her claimed disabilities. Although
“stress” was raised in Fuoco’s complaint, neither stress nor stress-related anxiety is asserted as the basis for Fuoco’s
disability in her response to Lehigh’s motion for summary judgment.
present affirmative evidence in order to defeat a properly supported motion” and cannot “simply
reassert factually unsupported allegations.” Williams v. Borough of West Chester, 891 F.2d 458,
460 (3d Cir. 1989). She cannot “merely rely upon conclusory allegations in her pleadings or in
memoranda and briefs.” Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992).
The ADA prohibits an employer from “discriminat[ing] against a qualified individual on
the basis of disability in regard to . . . discharge of employees . . . and other terms, conditions,
and privileges of employment.” 42 U.S.C. § 12112(a).12 A “qualified individual with a
disability” is a person who “with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires.” Id. §
12111(8). Thus, to establish a prima facie case of discrimination under the ADA, a plaintiff
must show: “(1) [s]he is a disabled person within the meaning of the ADA; (2) [s]he is otherwise
qualified to perform the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) [s]he has suffered an otherwise adverse employment
decision as a result of discrimination.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d
Cir. 1999) (internal citations and quotations omitted).
In addition to seeking summary judgment on Fuoco’s ADA claim on the basis that there is no genuine
dispute as to any material fact, Lehigh argues in its brief that it is entitled to summary judgment because Fuoco
failed to make proper service pursuant to Federal Rule of Civil Procedure 4(c), or alternatively, because Fuoco failed
to exhaust her administrative remedies. The former of these procedural arguments was already disposed of by Judge
Stengel’s March 27, 2012 order denying Lehigh’s motion to dismiss as moot. See Dkt. 7. As to the issue of
exhaustion of administrative remedies, Lehigh contends that dismissal is appropriate where, as here, a plaintiff files
suit in federal court without first receiving a Notice of Right to Sue letter from the EEOC. It is true that Fuoco filed
her lawsuit on September 28, 2011, but did not receive a Right to Sue letter until October 5, 2012 from the EEOC
and April 6, 2012 from the PHRC. Nevertheless, as several courts in this district have recognized, “EEOC
administrative remedies may be considered fulfilled when a right-to-sue letter is issued before trial.” See Atkinson v.
Lafayette Coll., No. 01-CV-2141, 2002 WL 123449, at *2 (E.D. Pa. Jan. 29, 2002) (citing cases); Lantz v. Hosp. of
the Univ. of Pennsylvania, No. 96–2671, 1996 WL 442795, at *2 (E.D. Pa. July 30, 1996) (citing Molthan v. Temple
Univ., 778 F.2d 955, 960 (3d Cir.1985)). Moreover, the record shows that Fuoco’s counsel attempted to obtain a
letter from the EEOC prior to filing this lawsuit. See Pl.’s Br., Doc. 23-11.
The elements of a PHRA claim will not be discussed separately as disposition of the ADA claim applies
equally to the state law claim. See Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 935 n.1 (3d Cir.
Discrimination under the ADA encompasses not only employers’ adverse actions against
employees that are “motivated by prejudice and fear of disabilities, but also includes failing to
make reasonable accommodations for [an employee’s] disabilities.” Id. In other words, an
employer can unlawfully “discriminate” within the meaning of the ADA in two different ways
that are relevant to the present case: (1) if the employer takes adverse action against a qualified
individual with a disability and that decision was motivated by the individual’s actual disability
or the employer’s belief that the individual had a disability (i.e. disparate treatment); or (2) if the
employer fails to make reasonable accommodations for that individual. The ADA specifically
states that an employer discriminates when it does “not mak[e] reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business of such
covered entity.” 42 U.S.C. § 12112(b)(5)(A).
Before considering whether Lehigh discriminated against Fuoco, I will first examine
whether Fuoco has established that she was disabled within the meaning of the ADA – in other
words, that she is a member of the protected class that the ADA intended to cover.
The ADA defines “disability” in three ways: (1) a physical or mental impairment that
substantially limits one or more major life activities of the individual; (2) a record of such
impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1)(A)-(C).
In her response to the motion for summary judgment, Fuoco contended that she satisfies the
ADA’s disability requirement because she suffered from an actual disability – ADD and
depression – that substantially limits a major life activity, or in the alternative, she was “regarded
as having” an impairment. Pl.’s Br. at 3, 15.
1. Actual Disability
To establish that she suffered from an actual disability, Fuoco must point to evidence that
she suffered from a physical or mental impairment and that the impairment substantially limited
one of her “major life activities.” “Major life activities” include such things as, caring for
oneself, walking, breathing, and more relevant in this case, learning, concentrating, thinking,
communicating, and working. See 42 U.S.C. § 12102(2)(A). While the terms of the ADA are
interpreted broadly, the determination of whether a plaintiff’s impairment “substantially limits” a
major life activity will require an individualized assessment that compares the person’s ability to
perform the activity as compared to most people in the general population. See id.
§ 12102(4)(A); 29 C.F.R. § 1630.2(j). This analysis will consider several factors, including the
nature of the impairment, the condition and manner in which the individual performs the major
life activity, and the duration of time it takes the person to perform the major life activity. See 29
C.F.R. § 1630.2(j)(3)-(4). Finally, the “substantially limits” assessment will not consider the
ameliorative effects of mitigating measures (i.e. medications or reasonable accommodations). 42
U.S.C. § 12102(4)(E).
Although characterized by uncertain and contradictory assertions, Fuoco’s evidence read
fairly shows that she was suffering from a variety of physical and mental impairments for many
years. During her employment with Lehigh, she believed and told others that her problems were
the result of alcohol and drug addictions and menopause.
While Fuoco provides evidence and testimony concerning an array of ailments – she long
suffered from migraine headaches (Fuoco Dep. at 64-65, 76-77), has endured a lengthy battle
with drug and alcohol addiction (id. at 13, 46, 64, 68, 79), was involved in a car accident
resulting in back injury that eventually required surgery (id. at 71-72), and had a host of other
problems, including a heart murmur (id. at 74), severe anemia (id. at 106-107), memory loss (id.
at 106), stress-related anxiety (id. at 51, 58), and menopause (id. at 172) – in her response to
Lehigh’s motion for summary judgment, the only impairments that Fuoco mentions qualify as
disabilities under the statute are depression and ADD, also at times referred to by Fuoco and Dr.
Medlar, as attention deficit hyperactivity disorder (“ADHD”) . Pl.’s Br. at 3.
It is undisputed that depression and ADD are mental impairments covered under the
ADA. See 29 C.F.R. § 1630.2(h) (definition of mental impairment). Fuoco further contends that
these impairments substantially limited her ability to perform the major life activities of learning
how to cope with new job functions, working, and cognitive function. Pl.’s Br. at 3, 11.
Learning, working, and thinking are specifically listed in the statute as major life activities. 42
U.S.C. § 12102(2)(A).
Nevertheless, the issue is whether Fuoco has shown that she actually suffered from
depression and ADD and whether those impairments substantially limited her ability to work,
learn, and think. In order for me to perform the necessary individualized assessment, I must
examine the nature and severity of Fuoco’s impairments, whether it be through evidence of
diagnosis, treatment, or history experiencing symptoms, and how they impacted and limited her
ability to perform her identified major life activities.
Despite the arguments in plaintiff’s response to the motion for summary judgment,
Fuoco’s counsel conceded at oral argument that depression had nothing to do with the problems
she experienced preceding her termination in 2010. This concession is justified based on the
evidence of this case. Fuoco offers no documentation of a depression diagnosis. Moreover,
nothing in the record indicates Fuoco experienced symptoms of depression, sought treatment for
it, mentioned it to anyone at Lehigh, or herself believed she suffered from depression after 2006.
Furthermore, Fuoco points to no evidence in the record, and in fact makes no argument, as to
how depression had any impact on a major life activity.
I find that Fuoco has not pointed to sufficient evidence creating a triable issue of fact as
to whether she suffered from depression during the relevant time period or whether her
depression substantially limited any major life activity. Thus, Fuoco was not disabled within the
meaning of the statute due to her depression. Moreover, because Fuoco conceded that
depression was not a factor near the time of her termination, I will limit the remainder of my
discussion to ADD.
Fuoco asserts that in the summer of 2010 something was wrong with her and she
underwent several tests, but did not learn the results, including a diagnosis for ADD, severe
anemia, and memory loss, until after she was fired. See Fuoco Dep. at 65-66. Since Fuoco did
not provide any documentation of these diagnoses, there is no way to know if they were
accompanied by treatment-recommendations for ADD – and if they were, whether or not she
acted upon them and whether or not they were effective, nor did she testify about these matters.13
What we do know is that she reported nothing about them to Lehigh.
Dr. Medlar’s April 2012 report, created some 18 months after her termination, concluded
she then met the OVR criteria for ADHD based on the “reported history, diagnostic interview,
and assessment results.” See Def.’s Br., Exh. F. That “reported history” was that Fuoco told him
Fuoco testified only that after her diagnosis in 2010, she “started taking vitamins, started doing work in
the book [Alcoholics Anonymous manual], started going to a psychiatrist.” Fuoco Dep. at 107-08.
she had been “previously diagnosed with AD/HD in 2010.” Id. Dr. Medlar did not say he
reviewed any documentation of that diagnosis or that any was made available to him. Moreover,
meeting these criteria is not the same as a diagnosis from a treating or examining physician. As
indicated in the report, Dr. Medlar was not one of her healthcare providers. Thus, Dr. Medlar’s
report is not evidence that she was diagnosed with ADD in 2012 or 2010, nor is it evidence that
she met the OVR criteria in 2010.
However, accepting that Fuoco was diagnosed as having ADD in 2010,14 I must also see
whether she pointed to evidence that her ADD substantially limited – as opposed to slightly or
moderately limited – her ability to think, learn, concentrate and work. Based on the record
before me, there is no evidence that any or all of Fuoco’s many problems were attributable to
Fuoco’s own testimony is contradictory as to when she started to experience conditions
that she now believes came from ADD. On the one hand, Fuoco testified that, although she did
not know she had ADD, she always struggled with forgetting and making mistakes and paying
attention to detail. Fuoco Dep. at 31-32. She testified that she “knew [she] was ADD all [her]
life based on [her] life and [her] ability to organize and attend and remember and concentrate.”
Id. at 50. Fuoco also testified that she had problems with “communication,” so that sometime
while working in the Office of Admissions, which was from 2002 to 2007, she began asking for
everything to be put in writing rather than people giving her “oral directives.” Id. at 81-84.
If Fuoco contends that she has always had ADD, then her claim of having an impairment
that substantially limited the major life activities of working, thinking, and learning, is defeated
My acceptance of this premise is based on Fuoco’s testimony alone, and I am doing so despite the fact
that she did not raise ADD in her complaint or her amended complaint, which was filed on March 26, 2012. Instead,
she mentioned ADD in her response to Lehigh’s motion for summary judgment which was filed after Dr. Medlar’s
April 2012 report.
as she clearly managed to cope with the undiagnosed ADD all her life without considerable
difficulty – that is, she managed to work for Lehigh for nearly 13 years (including almost five
years after her 2005 discipline) and to hold down prior jobs. In addition, she took classes at
DeSales University towards obtaining a college degree. See id. at 8-16; Def.’s Br., Exh. F. In
short, despite her problems, Fuoco was able to perform the duties of her employment.
On the other hand, Fuoco testified that she was not diagnosed with ADD until September
2010, and that she only became “really concerned” that “something was going on” in the summer
of 2010, when she started to make mistakes at work. See Fuoco Dep. at 49, 52, 93. Fuoco stated
that she was unsure if she was affected by her “disability or menopause” and by disability she
meant, “untreated alcoholism and my ADD.” Id. at 49-50. However, she does not establish how
those mistakes were linked to her ADD and merely making mistakes at work is not sufficient to
establish a causal connection to a potential disability.
Even if she did not have a diagnosis, or a name for the problem she was experiencing at
the time, Fuoco must point to evidence as to why her ability to think, learn, and do her job were
impaired or made more difficult, or specifically in the months prior to her termination, how
things had gotten significantly worse or what occurred to exacerbate her condition.15 In support
thereof, Fuoco testified only that in the summer of 2010, she was given the additional
responsibility of supporting a new staff member, her stress level increased, her mistakes
increased, and everything became “more overwhelming,” explaining that she is “easily
overwhelmed with too much information or interaction with trying to . . . maintain and stay on
The one isolated instance Fuoco testified about concerning her ability to concentrate or multitask during
her job occurred five years prior to her termination. Fuoco testified that in September 2005, she asked her
supervisor, Lisa Dubreuil, to relieve her of the duty of answering phones “[b]ecause of the level of distraction it was
going to cause me from the level of work I had to do.” Fuoco Dep. at 27-28. Despite this being a general complaint
– one that could be linked to several different causes, including simply being overwhelmed with new duties – it was
a limited occasion, far removed from the time at issue, and not linked to a disability in Fuoco’s own view and
certainly not to the knowledge of her supervisors.
task and agenda-wise.” Id. at 113, 119. She further testified that while she was generally able to
“manage” her unknown disability with “little difficulty” it was “when the height of the calendar
came, that is when my difficulties arose.” Id. at 119.
Fuoco offers nothing other than her speculative and subjective belief that her problems
were the result of her ADD. This is not enough to establish that her ability to work, think, or
learn were impaired by ADD, as opposed to any other reason. Moreover, a mere preference for
written rather than oral directions, general forgetfulness, and a proclivity for getting
overwhelmed with too much information or when schedules become busy are insufficient to
establish that she suffered from ADD to the extent that the disorder substantially limited her
ability to think, learn, or work. Indeed, I would think most people prefer directions in writing
and get overwhelmed with an abundance of information. See Warshaw v. Concentra Health
Servs., 719 F. Supp. 2d 484, 494-95 (E.D. Pa. 2010) (noting that “occasional forgetfulness is not
an unusually restrictive limitation on cognitive function . . . nor is remembering particular facts
later than one wishes”).
Thus, even bearing in mind that the amended version of the ADA “requires a less
searching analysis of whether a plaintiff is substantially limited,” I find that Fuoco has not
provided sufficient evidence to raise a genuine issue of fact as to whether she was disabled due
to her ADD. See Mills v. Temple Univ., 869 F. Supp. 2d 609, 620 (E.D. Pa. 2012).
2. Regarded as Having an Impairment
Alternatively, Fuoco contends that she was “regarded as being disabled.” Pl.’s Br. at 15.
However, Fuoco offers nothing other than bare, unsupported assertions in her brief that she was
“viewed as being disabled.”16 Id. Not only does Fuoco fail to explain which disability she was
Fuoco testified that she was perceived as “unintelligent or just incapable,” she had “an inferiority
complex”, and she “was different.” Fuoco Dep. at 85, 97, 178. Fuocco explained that she was different from her
regarded as having, and by whom, but she offers no evidence that Lehigh perceived her as
having ADD or depression at or around the time it terminated her employment. Moreover, there
is nothing in the record to suggest that Lehigh’s decision to end her employment was based on its
perception that Fuoco had ADD or depression. See 42 U.S.C. § 12102(3)(A) (an individual
meets the “regarded as” requirement if she establishes that “she has been subjected to an action
prohibited under this chapter because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity”).
Because I find that no reasonable fact-finder could conclude that Fuoco was actually
disabled or regarded as disabled within the meaning of the ADA, summary judgment in favor of
Lehigh was required on this finding alone. Nevertheless, I will analyze the remainder of Fuoco’s
Even if Fuoco had sufficiently established that she had a disability under the ADA, and
assuming she was qualified for the job she held prior to her termination,17 I find as a matter of
law that she fails to make out a claim of discrimination based on either Lehigh’s decision to
co-workers: “I was not your college educated preppy person that most staff members were like. I rode my
motorcycle to work. I talked bravely about spiritual things and dysfunction in my life.” Id. at 178. No other
evidence concerning how Lehigh regarded Fuoco as an employee was offered.
The Third Circuit has held that a plaintiff is a “qualified individual” if he or she can “’satisfy the
prerequisites for the position, such as possessing the appropriate educational background, employment experience,
skills, licenses, etc.’ and, the plaintiff must be able to ‘perform the essential functions of the position held or desired,
with or without reasonable accommodations.’” Taylor, 184 F.3d at 311 (internal quotations and citations omitted);
see also 42 U.S.C. § 12111(8). Given that Fuoco worked for Lehigh for 13 years and held the position she was in at
the time she was terminated for almost 3 years, there is no serious dispute that she satisfied the prerequisites for the
job. While not exploring the matter, I note that an indefinite absence from work – which is the accommodation
Fuoco suggests was reasonable – begs the question as to how she could have performed the duties of her job without
being there. Nevertheless, as Fuoco ultimately fails to meet her burden as to other elements of her claim, I will
assume for purposes of deciding this motion that she was able to perform the essential functions of her job with or
without some reasonable accommodation.
terminate her employment or its failure to provide her with a reasonable accommodation. Thus,
summary judgment in favor of Lehigh was required.
1. Disparate treatment
Fuoco does not argue that there is direct evidence of discrimination; therefore she may
present circumstantial evidence of unlawful employment practices, and that evidence will be
considered under the familiar three-stage McDonnell Douglas burden-shifting analysis. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Matczak v. Frankford Candy
and Chocolate Co., 136 F.3d 933, 938 (3d Cir. 1997) (McDonnell Douglas burden-shifting
framework applies to ADA disparate treatment claim).
To survive a motion for summary judgment, Fuoco must first come forward with
evidence to establish a prima facie case of discrimination. As stated above, she would need to
show that she was a disabled person within the meaning of the ADA, she was qualified, and she
suffered an adverse employment decision as a result of discrimination. Shaner v. Synthes, 204
F.3d 494, 500 (3d Cir. 2000). If Fuoco establishes a prima facie case, the burden of production
then shifts to her former employer, Lehigh, to articulate some legitimate, nondiscriminatory
reason for her rejection. If Lehigh does so, the burden of production shifts back to Fuoco for the
third stage of the McDonnell Douglas analysis, where she must point to sufficient evidence from
which a fact-finder could reasonably conclude that the legitimate reasons offered by Lehigh were
not its true reasons, but were a pretext for discrimination. See Olson v. General Elec.
Astrospace, 101 F.3d 947, 951 (3d Cir. 1996); Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
1994). At all times, the burden of persuasion rests with Fuoco.
Turning to Fuoco’s prima facie case, and accepting for purposes of this discussion that
she was disabled and otherwise qualified, I find that Fuoco fails to raise even an inference that
her disability was factored into the adverse employment decision at issue, her termination.
Fuoco acknowledges that the ADD diagnosis did not come to her until after she was
terminated and therefore no one could have known about this alleged disability, yet alone
considered it as part of the decision to fire her. Nevertheless, Fuoco claims that she informed
Lehigh of her “illness” and was then terminated almost immediately thereafter. Pl.’s Br. at 13.
However, to find causation based on temporal proximity using this logic would mean that Lehigh
had to infer a mental impairment, rising to the level of a covered disability and differing from
any of her previous health issues experienced over her lengthy employment, based on her
statements that something was wrong with her or that she was not sure if she was experiencing
“menopause or a disability,” and then had to factor that into its decision to terminate her
employment. No reasonable fact-finder could reach this conclusion. As Fuoco does not point to
anything else suggesting that Lehigh considered her impairment as part of its decision, she
cannot satisfy this element of a prima facie case.
Even if Fuoco could establish a prima facie case, she has failed to refute any of Lehigh’s
proffered legitimate reasons for her termination or otherwise shown that those reasons were a
pretext for discrimination. Lehigh has explained that it lost confidence in Fuoco’s ability to do
her job correctly, and cites to specific mistakes it alleges she made in August and September
2010, including the mistake with respect to Heritage Days on September 22, 2010, that Lehigh
considered significant and one that directly contributed to its decision to terminate her.
Not only does Fuoco have no response as to these reasons for her termination, or even
attempt to discredit them, she admits she made the mistakes cited by Lehigh. Instead, Fuoco
tries to prove pretext by arguing that she had satisfactory performance “prior to her notifying the
Defendant of her health issues” and that “there is very little evidence of progressive steps of
discipline in this case.” Pl.’s Br. at 14. However, the record demonstrates that Fuoco’s
contention is simply not true, as she had previously been reprimanded by her supervisor for poor
work performance, placed on probation for a period of time in late 2005/early 2006, received a
performance evaluation reflecting “improvement needed,” and finally, in September 2010,
placed on a PIP after the Dorney Park incident and other mistakes Lehigh contends she made.
Then, according to Lehigh, it finally made the decision to fire Fuoco after she failed to order
necessary items for Heritage Days – a mistake she made while still on the PIP and one
considered significant because it was a key-job responsibility.
Thus, Fuoco has pointed to no evidence demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in Lehigh’s proffered reasons
such that a fact-finder could find them “unworthy of credence.” Fuentes, 32 F.3d at 765. Fuoco
simply has not come forward with any evidence from which a fact-finder could reasonably either
disbelieve Lehigh’s articulated reasons, or believe that discrimination on account of disability
was more likely than not a motivating or determinative cause of Lehigh’s employment decision.
As Fuoco fails to meet her burden of demonstrating pretext, I granted summary judgment in
favor of Lehigh on plaintiff’s disparate treatment claim.
2. Failure to Accommodate
As stated above, an employer can be liable for discrimination under the ADA if the
employer does not make “reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability” unless the employer “can
demonstrate that the accommodation would impose an undue hardship18 on the operation of [its]
business.” 42 U.S.C. § 12112(b)(5)(A) (emphasis added). The statute contains a non-exhaustive
list of what are considered reasonable accommodations, including, inter alia, job restructuring,
part-time or modified work schedules, and reassignment to a vacant position. Id. § 12111(9).
“Consistent with the duty to reasonably accommodate, an employer must ‘engage the employee
in the interactive process of finding accommodations.’” Kiniropoulos v. Northampton Cnty.
Child Welfare Serv., 917 F. Supp. 2d 377, 384 (E.D. Pa. 2013).
Once a qualified individual with a disability requests reasonable accommodation, that
notice would trigger the employer’s duty to engage in an “interactive process” with the
individual to determine what accommodations would overcome his or her limitations. See
Taylor, 184 F.3d at 311-313, 315.19 Because the statute explicitly states that the employer may
be held liable for failure to make accommodations for a known disability, it is clear that the
employer “must know of both the disability and the employee’s desire for accommodations for
that disability.” Id. at 313 (noting that “[e]mployers cannot assume employees are disabled and
The first issue then is whether Lehigh had notice of Fuoco’s disability. Lehigh argues
that it was never put on “actual or constructive notice” of Fuoco’s ADD and it was only notified
of Fuoco’s possible cognitive disorder after her termination. Def.’s Br. at 15. Lehigh claims that
“Undue hardship” is defined under the statute as “an action requiring significant difficulty or expense”
when considered in light of certain factors, which are set forth in a non-exhaustive list and include cost of the
accommodation, and the financial resources, impact, size and type of the business. 42 U.S.C. § 12111(10).
The Third Circuit has instructed that an employee claiming that her employer was responsible for the
breakdown in the interactive process must show that (1) the employer knew about the disability; (2) employee
requested reasonable accommodation for her disability; (3) employer did not make a good faith effort to assist the
employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the
employer’s lack of good faith. Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 330 (3d Cir. 2003). Because I
find that Fuoco does not point to sufficient evidence to satisfy the first two elements, there is no need to address the
it first received “medical notice of the possibility that she might have a cognitive disorder on
October 7, 2010” when Fuoco submitted a letter to Human Resources from Dr. Marie Buschi
indicating Fuoco was undergoing cognitive testing and should be excused from work. See id. at
13; Zavalydriga Aff. ¶ 33.
Fuoco, on the other hand, argues that Lehigh had knowledge of Fuoco’s “various health
problems.” Pl.’s Br. at 21. Fuoco points to several documents in the record to support her claim
that Lehigh knew of her medical issues. However, the issue is not whether Lehigh was aware
that Fuoco, or her family members for that matter, had a multitude of health problems varying in
type and severity, and spanning the course of many years.20 The question is whether Lehigh was
on notice of a particular disability, here ADD, which entitled her to protection under the ADA,
and none of the documents Fuoco has submitted demonstrate that Lehigh had notice of her ADD
or a disorder that was later identified as ADD.
Fuoco refers to the April 2012 report by Dr. Medlar and argues that the report’s reference
to her diagnosis with ADD in 2010 somehow suggests that Lehigh knew or should have known
about Fuoco’s ADD at that time. However, as Fuoco has acknowledged, that diagnosis, even if
she learned of it in 2010, was after her employment with Lehigh ended. With respect to the
same report, Fuoco also argues that Dr. Medlar’s reference to her struggle with mental health
issues for “most of her life” means that Lehigh must have known of these same issues because
Fuoco filled out a short-term disability benefits form in April 2009 that authorized Lehigh to
For instance, Fuoco cites to documents indicating she went out on short-term disability in September
2009. However, there is no evidence that that leave had anything to do with ADD. One of those documents, which
was signed in September 2009, indicates a return date of July for part-time and August for full-time, but does not
include the reason for the short-term disability, yet it corresponds with what other parts of the record have indicated
was Fuoco’s leave for her back surgery. See Pl.’s Br., Doc. LU 000255. Other documents fail to identify a reason
for Fuoco’s absence and Fuoco has not tied them to a particular reason, and therefore they cannot be evidence of
Lehigh’s knowledge of her ADD or ADD-like symptoms. See, e.g., id., Doc. LU 000256. Finally, Fuoco cites to
documents that clearly relate to medical issues or appointments that have nothing to do with her possible ADD, and
several of them refer to appointments that were not even for her. See, e.g., LU 000263 (noting her difficulty with
her eyesight); LU 000266 (referring to her son’s appointment with an oral surgeon).
have access to all of plaintiff’s medical records. Fuoco reasons that, “the same evidence that led
Dr. Medlar to refer to Plaintiff’s lifelong struggle with mental health problems was made readily
available to Lehigh University by virtue of that April 10, 2009 short-term disability form.” Pl.’s
Br. at 23. A closer look at the April 10, 2009 disability form, however, indicates that Fuoco
authorized the release of records to Lehigh as needed to review her application for disability to
recover from her back surgery. See id., Doc. 23-8. Fuoco’s argument fails for obvious reasons
as it is based entirely on speculation as to whether any records pertaining to her mental health
existed and, if they did exist, whether they were made available for Lehigh’s review. A finder of
fact in this case would not be able to determine if Fuoco’s medical records support her claims as
she has not produced them.
Ultimately, there is only Fuoco’s claim that she told her supervisor, Jame’l Hodges, about
her ADD. Pl.’s Br. at 22; Pl.’s Facts ¶ 20. Yet, as I have repeatedly noted, Fuoco was not made
aware of her diagnosis with ADD until after she was terminated, thus precluding her claim that
she informed Hodges of that diagnosis. Thus, the question is whether Lehigh should have
known before her termination that Fuoco was suffering from ADD, a disability that was not
identified as ADD until after her termination.
Fuoco testified that in the summer of 2010, when she contends her condition deteriorated
and she made errors at work, she informed Alison Gelati that something was wrong, or that she
“might have a medical condition” and was not sure whether it was her “age or a disability” but
she was going to try and find out what it was. Fuoco Dep. at 95. Fuoco testified that she told
Hodges, her immediate supervisor, that she was going to “make some doctor appointments
because I think I got some disability or menopause going on that is affecting my capabilities.”
Id. at 132. She then told Hodges she was getting tests done. Id. at 132-33. Even if her claims
are fully credited, this is simply not sufficient to have put Lehigh on notice of a possible
disability or what it was. What she told her supervisors in combination with the other
information Lehigh knew at the time – namely that Fuoco had many absences due to various
types of appointments and medical issues, in addition to Fuoco having made some mistakes at
work – is not enough for a reasonable fact-finder to conclude that Lehigh knew or should have
known Fuoco had ADD.
Even if Fuoco did put Lehigh on notice of her disability, she would also have the burden
of demonstrating that she requested accommodation for her disability. “[W]hile the notice does
not have to be in writing, be made by the employee, or formally invoke the magic words,
‘reasonable accommodation,’ the notice nonetheless must make clear that the employee wants
assistance for his or her disability.” Taylor, 184 F.3d at 313. Notably, the interactive process
can be triggered with the request for a more general accommodation or need for assistance to
overcome a limitation – and it is not negated by a request for an accommodation that is
ultimately not feasible. See id. at 315-17.
“What information the employee’s initial notice must include depends on what the
employer knows.” Id. at 313. By way of illustration, the Taylor Court discussed a case where
the employee mentioned to his employer that he was diagnosed with bipolar disorder, but did not
offer further information about his disorder and “could not confirm that he ever explicitly asked
for an accommodation or help of any sort.” Id. The Court opined, “[u]nder these circumstances,
the employee has not given sufficient notice to trigger the employer’s duty to engage in the
interactive process.” Id. The Court then contrasted that case with the facts before it where the
employee became psychotic at work, the employer knew she was hospitalized immediately after,
the employer had been contacted by the hospital and knew how to get more information from the
employee or her physician if needed. The Court stated that it was not essential that the employer
knew the specific name of the employee’s condition, as it was clear that the employer knew the
individual “exhibited serious psychiatric problems and those problems were severe enough” to
require hospitalization and continuing treatment. Id. at 314.
Fuoco has not pointed to evidence from which a reasonable fact-finder could conclude
that Lehigh knew that she was disabled and that she requested accommodation from Lehigh, and
therefore, the interactive process was triggered. Fuoco’s counsel conceded at oral argument that
during her 13 years at Lehigh there was never a request Fuoco made that was refused by
Lehigh.21 Even though Fuoco argues in her brief that a short leave of absence would have been a
reasonable accommodation,22 she never asked for a leave of absence, nor did she request to take
leave under the FMLA or short-term disability, despite her experience having taken such leave in
the past. Fuoco only mentioned “medical leave” when she emailed Human Resources stating she
was on medical leave and later submitting a doctor’s letter in October 2010 – after she was
terminated. See Fuoco Dep. at 160-61; Pl.’s Facts ¶ 43-44.
Instead, Fuoco’s position is that Lehigh should have known she needed a reasonable
accommodation and should have engaged her in a process of determining what that
accommodation needed to be, despite the fact that Fuoco did not request any specific
The only specific requests Fuoco made that are apparent from the record were made while she was in the
Office of Admissions (2002-2007) and are therefore far removed temporally from the time she claims she notified
her employer of her disability and she should have been given reasonable accommodation. First, Fuoco requested to
be taken off of phone duty because it distracted her from her other work. Second, Fuoco testified that she requested
that her supervisors communicate with her in writing rather than orally, which Fuoco concedes was done when
feasible. Pl.’s Facts ¶ 28. As to each of these requests, Fuoco does not offer any evidence that Lehigh was on
notice at that time of her disability, and such generic requests could not have reasonably signaled to Lehigh that she
was suffering from a medical problem.
Fuoco does not explain how a “relatively brief” absence would have cured her disorder or resolved the
problems she was experiencing, nor does she say how long this absence should have been.
accommodation, nor does she claim that she requested more general help with her disability.23
At most, Fuoco told her supervisor that she was going to make some medical appointments,
including having some tests done, and that she was not sure whether it was menopause or some
unknown disability that was affecting her. Fuoco does not claim that she requested a leave of
absence to attend the appointments or have the tests done. Moreover, she does not point to
evidence that she explained what was causing her to have difficulty at work or that she notified
anyone that she was unable to perform certain functions without some kind of assistance.
No reasonable fact-finder could conclude that Fuoco’s vague statements about what was
wrong with her and her plan to make doctors’ appointments and undergo some testing, even in
combination with her history of missed work and medical issues,24 should have signaled to
Lehigh that Fuoco was in need of a leave of absence or some other accommodation for her
disability. The interactive process cannot be triggered, and the onus put on the employer, when
the employee herself did not know she needed the accommodation and did not ask for it. Lehigh
cannot be expected to define the help an employee needs when it could not reasonably have
known she needed help at all.
In sum, under these circumstances Lehigh cannot be held liable for failure to have
perceived there was a disability and from that perception, perceived that a reasonable
accommodation was required. As Fuoco did not provide adequate notice to Lehigh as to her
In her brief Fuoco refers to a document, Bates number LU 000244, which she labels a “scolding
memorandum warning [Fuoco] about the excessive use of sick days.” Pl.’s Br. at 20-21. Fuoco argues that Lehigh
provided Fuoco with this document “instead of attempting to engage in an interactive process.” Id. at 20. However
this document has no evidentiary value as there is no evidence of who sent the document, to whom it was sent, when
it was sent, and plaintiff’s own brief claims that it is a “draft” of a document that Human Recourses “‘thinks’ is
similar to other documents sent to Plaintiff previously.” Id.
In fact, this history of making doctors’ appointments, taking approved leave including vacation, sick
time, FMLA or short-term disability, actually goes against plaintiff’s favor. As her history has shown, she managed
to do her job while visiting doctors for various ailments throughout her entire employment and Lehigh had always
accommodated her needs without adverse action. Lehigh could not be expected to know that this time, with this
medical problem, she needed reasonable accommodation.
disability or her desire for accommodation, the interactive process was not triggered and Lehigh
was entitled to summary judgment on Fuoco’s failure to accommodate claim.
For the above stated reasons, summary judgment in favor of Lehigh was granted as to all
of Fuoco’s claims.
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?