Gardner v. KUTZTOWN UNIVERSITY et al

Filing 79

MEMORANDUM. SIGNED BY DISTRICT JUDGE JEFFREY L. SCHMEHL ON 3/27/24. 3/27/24 ENTERED AND COPIES E-MAILED.(er)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CAROLYN GARDNER
v.
KUTZTOWN UNIVERSITY, et al.

: CIVIL ACTION
:
: NO. 22-1034
:
:

MEMORANDUM
SCHMEHL, J. /s/ JLS

March 27, 2024

This is another case where a tenured Associate Professor at Defendant
Kutztown University (“KU” or the “University”), claims the Defendants KU and its
President, Dr. Kenneth Hawkinson (“Dr. Hawkinson”), its Vice President for Equity,
Compliance, and Liaison for Legal Affairs, Jesus Pena (“Mr. Pena”), and its Director of
the Department of Human Resources, Jennifer Weidman (“Ms. Weidman”) violated
Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794, as amended by the
Americans with Disabilities Amendments Act, 42 U.S.C. §12101, when they denied her
request for a remote work accommodation for the Fall Semester of 2021 and in the
Semesters thereafter. 1 Plaintiff claims that in denying her request, the Defendants
refused to consider her individual circumstances of being diagnosed with incurable
peripheral focal chorioretinal inflammation and panuveitis of both eyes that requires lifelong immunosuppressive medications to reduce her risk of going blind and which placed
her at a higher risk of contracting COVID-19. Instead, Plaintiff claims the Defendants
relied on a recently formulated blanket policy that any request to change the course
modality, office hours and meetings for the Fall 2021 Semester from in-person to
1

See Oross v. Kutztown University, 2023 WL 4748186 (E.D. Pa. July 25, 2023).

1

remote would be considered a substantial alteration to the course offerings and would
represent an undue hardship to the University.
Plaintiff has asserted claims against KU under the RA for failure to accommodate
(Count One), facial invalidity of Defendants’ Blanket Policy (Count Two), Intentional
Discrimination because of Disability (Direct Evidence) (Count Three); Intentional
Discrimination because of Disability (Pretext) (Count Four), Prohibited Standards,
Criteria, or Methods of Administration (Count Five), and Retaliation and Interference
(Count Six). Plaintiff has also asserted two claims against Dr. Hawkinson for
Interference and Discrimination under the RA (Count Seven) and a claim under 42
U.S.C.§ 1983 for Retaliation for Deprivation of Rights under the RA (Count Eight), a
claim against Mr. Pena under 42 U.S.C. §1983 for Violation of Plaintiff’s Rights under
the Rehabilitation Act (Count Eleven) and a claim against Ms. Weidman under 42
U.S.C. §1983 for Violation of Plaintiff’s Rights under the Rehabilitation Act (Count
Twelve). 2 Presently before the Court are Plaintiff’s motion for partial summary judgment
on Counts One, Two, Three, Five and the Interference part of Count Six and the
Defendants’ motion for summary judgment on all counts. For the reasons that follow,
both motions are granted in part and denied in part.
STANDARD OF REVIEW
A court shall grant a motion for summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “genuine” if there is a
sufficient evidentiary basis on which a reasonable jury could return a verdict for the nonmoving party. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing
2

There are no Counts Nine and Ten in the Complaint.

2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is
“material” if it might affect the outcome of the case under governing law. Id. (citing
Anderson, 477 U.S. at 248).
Under Rule 56, the Court must view the evidence presented on the motion in the
light most favorable to the non-moving party. See Anderson, 477 U.S. at 255. However,
“[u]nsupported assertions, conclusory allegations, or mere suspicions are insufficient to
overcome a motion for summary judgment.” Betts v. New Castle Youth Dev. Ctr., 621
F.3d 249, 252 (3d Cir. 2010). The movant bears the initial responsibility for informing the
Court of the basis for the motion for summary judgment and identifying those portions of
the record that demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the
burden of proof on a particular issue, the moving party’s initial burden can be met simply
by “pointing out to the district court that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325. After the moving party has met the initial burden,
the non-moving party must set forth specific facts showing that there is a genuinely
disputed factual issue for trial by “citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other materials” or
by “showing that the materials cited do not establish the absence or presence of a
genuine dispute.” Fed. R. Civ. P. 56(c).
Summary judgment is appropriate if the non-moving party fails to rebut by
making a factual showing “sufficient to establish the existence of an element essential to

3

that party’s case, and on which that party will bear the burden of proof at trial.” Celotex,
477 U.S. at 322.
“The same standards and burdens apply on cross-motions for summary
judgment.” Allah v. Ricci, 532 F. App'x 48, 50 (3d Cir. 2013) (citing Appelmans v. City of
Phila., 826 F.2d 214, 216 (3d Cir. 1987)). “When confronted with cross-motions for
summary judgment ... ‘the court must rule on each party's motion on an individual and
separate basis, determining, for each side, whether a judgment may be entered in
accordance with the summary judgment standard.’ ” Transguard Ins. Co. of Am., Inc. v.
Hinchey, 464 F. Supp. 2d 425, 430 (M.D. Pa. 2006) (quoting Marciniak v. Prudential
Fin. Ins. Co. of Am., 184 F. App'x 266, 270 (3d Cir. 2006)). “If review of [the] crossmotions reveals no genuine issue of material fact, then judgment may be entered in
favor of the party deserving of judgment in light of the law and undisputed
facts.” Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998)).
FACTS
The parties have stipulated to the following facts 3:
JSUF[Joint Stipulation of Undisputed Facts] 1: KU is one of the 14 universities in the
Pennsylvania State System of Higher Education (PASSHE) with administrative
offices at 15200 Kutztown Rd., Kutztown, PA. Complaint & Answer (Docs. 1 & 6),
¶5.
JSUF 2: KU is a program or activity that receives federal funds, and a covered
employer under Section 504 of the RA. 29 U.S.C. §794 (b)(2). Docs. 1 & 6, ¶ 6.
JSUF 3: Dr. Hawkinson has been KU’s President since 2015. Docs. 1 & 6, ¶7.
Pursuant to the Court’s Order of July 24, 2023 [ECF 60], the record for purposes of deciding the crossmotions for summary judgment is limited to the state of the record that existed when Plaintiff filed her
motion for partial summary judgment on June 12, 2023 [Doc. 43].

3

4

JSUF 4: Mr. Peña is KU’s Vice President for Equity, Compliance, & Liaison for Legal
Affairs. Docs. 1 & 6, ¶8.
JSUF 5: Mr. Weidman is KU’s Director of Human Resources. Docs. 1 & 6, ¶9.
JSUF 6: Professor Gardner came to KU as an Associate Professor in 2006 and was
granted tenure in 2011. Docs. 1 & 11, ¶14.
JSUF 7: Professor Gardner attended graduate school at the New Mexico State
University, where she earned a Master’s Degree in Business Administration (MBA)
in 1994, and then in 2002, a Doctor of Philosophy (Ph.D.) in Business
Administration with a concentration in Management. Docs. 1 & 6, ¶15.
JSUF 8: Prior to coming to KU, Dr. Gardner served as Assistant Professor in the
College of Business and Economics at Radford University in Radford, VA. Docs. 1 &
6, ¶16.
JSUF 9: During her years at KU, Dr. Gardner has taught a range of management
courses. Docs. 1 & 6, ¶ 17; Exh. 79 at 38; Exh. 69 at 13. 4
JSUF 10: According to materials published on KU’s website, distance education is a
“critical component to its mission to lead the University into the future.” Docs. 1 & 6,
¶19.
JSUF 11: KU has a dedicated team of instructional designers, media producers, and
technical support staff that collaborates with faculty “to ensure that the online
experience reflects the rigorous education for which KU is known.” Docs. 1 & 6, ¶20.
JSUF 12: Dr. Gardner completed KU’s advanced online certification program in
2013. App. Vol. VI at 149; C.f., App. Vol. 7 at 176.

4

Unless otherwise noted, all Exhibits refer to those contained in Plaintiff’s Appendices [ECF 44-50].

5

JSUF 13: Between the fall 2006 semester and the conclusion of the 2020 fall
semester, Dr. Gardner taught 38 classes online. App. Vol. VI at 150-156.
JSUF 14: For purposes of summary judgment, Defendants do not dispute that Dr.
Gardner has a disability as defined by Section 504 of the RA. Exh. 74 at 95; Exh. 72
at 60.
JSUF 15: On December 17, 2020, Dr. Rajiv Shah (Dr. Shah”) diagnosed Professor
Gardner with peripheral focal chorioretinal inflammation and panuveitis of both eyes,
an auto-immune condition for which there is no cure. Exh. 58; Exh. 82 at 10; 17;
Exh. 69 at 46; 56.
JSUF 16: Dr. Shah is a specialist in inflammatory eye diseases and immunology in
the Department of Diseases and Surgery of the Retina and Vitreous and Uveitis and
Ocular Immunology at Wake Forest Baptist/Atrium Health Medical Center. He also
serves as Assistant Professor of Ophthalmology at Wake Forest University School
of Medicine. Exh. 82 at 8-10, 18.
JSUF 17: Dr. Shah’s medical records say that he explained to Professor Gardner
that her disease was vision-threatening and potentially blinding.
JSUF 18: After the Governor of Pennsylvania announced a state of emergency due
to the Covid-19 virus, KU, along with most other institutions of higher education
(IHEs) in the state, had to discontinue all in-person instruction by March 16, 2020.
Docs. 1 & 6, ¶¶ 24.
JSUF 19: In response, KU temporarily delivered courses in an online format and
faculty held office hours online, and conducted faculty and committee meetings
remotely. Docs. 1 & 6, ¶ 25; App. Vol. III at 42; Exh. 70 at 129.

6

JSUF 20: During the 2020 Spring semester, Dr. Gardner was teaching in-person
sections of Gender & Diversity (MGM 318), International Management (MGM 352),
and Business and Case Social Environment (MGM 360); these classes were
converted to remote modality when the shut-down took place.
JSUF 21: Dr. Gardner was also supervising Independent Study (Bus 379) and an
Internship in Business (Bus 390); these classes were converted to an online
modality when the shut-down took place.
JSUF 22: The state of emergency in Pennsylvania remained in force until June 15,
2021. Docs. 1 & 6, ¶ 27.
JSUF 23: KU moved ahead with the reopening plan [for the Fall 2020 Semester]
where accommodation standards were relaxed for staff and faculty resulting in
approximately 67% of KU’s courses being offered online. Docs. 1 & 6, ¶29.
JSUF 24: The Centers for Disease Control (“CDC”) considers people with immune
compromise to be at significantly elevated risk for serious illness or death from
Covid-19. See Docs. 1 & 6, ¶31.
JSUF 25: Pursuant to the CDC’s guidance, “severe illness” encompasses the need
for hospitalization, intensive care, a ventilator, or may result in death. Docs. 1 & 6,
¶30.
JSUF 26: According to the CDC, people at increased risk of severe illness or death,
and those who live or visit with them, need to take precautions to protect
themselves from getting COVID-19. Docs. 1 & 6, ¶32.
JSUF 27: Under the Governor’s order, high-risk faculty during the 2020-21
academic year were entitled to flexible work arrangements whether or not they

7

would

also

qualify

as

people

with

disabilities

eligible

for

reasonable

accommodations under federal or state disability law. Docs. 1 & 6, ¶33.
JSUF 28: Dr. Gardner requested and was granted a flexible work arrangement for
the Fall 2020 Semester, and taught all of her courses synchronously online. Docs. 1
& 6, ¶35.
JSUF 29: Under KU’s Course Design Principles and Models, synchronous online
instruction takes place 100% remotely using Zoom or other video conferencing
software, which allows for virtual communication between instructors, students, and
colleagues in real time. Docs. 1 & 6, ¶36; see also App. Vol. VI (No. 13); Exh. 22.
JSUF 30: [Pursuant to her Flexible Leave Arrangement], Professor Gardner
continued teaching her full course load synchronously online for the first half of the
2021 spring semester. Docs. 1 & 6, ¶40.
JSUF 31: Dr. Shah provided certification that Dr. Gardner was immunosuppressed,
and needed time to adjust to the medication. On or about March 23, 2021,
Professor Gardner applied for and was granted FMLA leave [ ] from March 23, 2021
through May 7, 2021 due to “incapacitating fatigue from medications.” Docs. 1 & 6,
¶42; see also Exh. 31 at 1-2.
JSUF 32: In March, 2021, Dr. Hawkinson issued a “Guide for Fall Semester: Covid19 Information,”stating that KU would be returning to a primarily face-to-face
environment. Docs. 1 & 6, ¶43.
JSUF 33: Under KU’s published re-opening plan, classrooms would return to their
pre-Covid configurations, which would not allow for social distancing. Professors
could ask students to wear a mask, but could not require them to use one.

8

Vaccinations were encouraged but not mandatory, and there was no protocol for
mandatory testing that would ensure that infected students and staff not enter
campus buildings and classrooms. Docs. 1 & 6, ¶60.
JSUF 34: Under Dr. Hawkinson’s directive, classrooms would “closely resemble
pre-Covid configurations,” and employees were expected to return to work on
campus, and faculty would be required to conduct office hours in person. Docs. 1 &
11, ¶44.
JSUF 35: Dr. Hawkinson’s “Guide for Fall Semester” was re-published on or about
August 8, 2021.
JSUF 36: Dr. Hawkinson’s directive strongly encouraged vaccination, but did not
require it. Students were encouraged, but not required, to update KU about their
vaccination status. Masks would be required indoors, but there would be no social
distancing requirements on campus. Docs. 1 & 11, ¶46.
JSUF 37: In the Frequently Asked Questions (“FAQs”) that accompanied the Fall
Semester Covid-19 Guide, Dr. Hawkinson stated that faculty would be required to
conduct office hours in-person. Docs. 1 & 11, ¶ 45.
JSUF 38: The language “conducting office hours is an essential function of the job
of an Associate Professor” does not appear in the governing union contract. App.
Vol. VI (No. 3).
JSUF 39: During a meeting in late July or early August, 2021, Mr. Peña and Ms.
Weidman concluded that converting in-person classes to online was not a
reasonable accommodation for the University. Docs. 1 & 6, ¶ 50.

9

JSUF 40: KU Policy DIV-002 governs the processing and disposition of requests for
“Reasonable Accommodation for Employees.” Docs. 1 & 6, ¶73; App. Vol. VI, (No.
14).
JSUF 41: Responsibility for the implementation of KU Policy DIV-002 rests with the
Director of Disability Services Office (“DSO”), as well as Ms. Weidman, Mr. Pena
and designated staff members. Docs. 1 & 6, ¶ 74; see App. Vol. VI (No. 15).
JSUF 42: Both Ms. Weidman and the Director for DSO report directly to Mr. Peña,
and he reports to Dr. Hawkinson. Docs. 1 & 6, ¶75.
JSUF 43: As described on its website, an employee initiates KU’s process for
“Requesting Employee Accommodations” by submitting a request to the Director of
DSO, along with medical documentation to establish that they have a disability as
defined by federal and state disability law, i.e., the Americans with Disabilities Act,
Section 504 and/or the Pennsylvania Human Relations Act. Docs. 1 & 6 , ¶70.
JSUF 44: If the DSO Director concludes that the employee’s medical documentation
is sufficient to show a disability, she communicates this to HR Director Weidman
with a description of the requested accommodation. Docs. 1 & 6, ¶71.
JSUF 45: Although DSO determines whether an employee has a medical condition
that qualifies them to move forward with the accommodation process, it does not
make the decision as to whether an accommodation will be granted or denied.
Docs. 1 & 6, ¶72.
JSUF 46: DIV-200 requires that all accommodation requests be evaluated on an
individual basis to determine whether the provision of such accommodation would
create an undue hardship to KU. Docs. 1 & 6 , ¶76; see also App. Vol. VI (No. 16).

10

JSUF 47: The policy provides that if the employee has a qualifying disability and
with or without reasonable accommodations, can perform the essential functions of
a position, a reasonable accommodation, if available and not creating an undue
hardship to KU, should be provided. Exh. 11; Exh. 75 at 49.
JSUF 48: The first day of classes for the 2021 Fall Semester was August 30, 2021.
Docs. 1 & 6, ¶63.
JSUF 49: On August 20, 2021, Professor Gardner submitted a request for
accommodation to the DSO seeking a synchronous remote work accommodation.
Docs. 1 & 6, ¶64; see also Exh. 1.
JSUF 50: In support of Dr. Gardner’s request, Dr. Shah submitted a letter dated
August

20,

2021,

to

DSO

explaining

that

Professor

Gardner

requires

immunosuppressive medications to reduce the risk of vision loss, which makes her
susceptible to contracting illnesses and possibly suffering more severe symptoms of
illnesses. The letter recommended that Professor Gardner “begin/continue to work
remotely for teaching, office hours, and meetings.” Docs. 1 & 6, ¶65. See also Exh.
1 at 4-5.
JSUF 51: On August 21, 2021, the Director of DSO e-mailed Ms. Weidman
informing her that Plaintiff had submitted documentation of a medical condition and
had requested an accommodation to perform all of her work remotely. Docs. 1 & 6,
¶ 79.
JSUF 52: According to KU’s Human Resources website, the HR Director will work
closely with the employee’s supervisor, manager, chair and/or Dean to gather the
relevant information necessary to respond to the request and assess whether a

11

particular accommodation will be effective, and “may convene a meeting to continue
the interactive process to discuss the requested accommodation as well as
alternative accommodations that may be effective in meeting the requester’s
needs.” Exh. 25 at 6.
JSUF 53: The responsibility for conducting what KU defines as the “interactive
process” is ordinarily delegated to the Employee Relations Manager, who at all
relevant times has been Alexis Martin (“Ms. Martin”). App. Vol. VI (No. 17).
JSUF 54: On August 26, 2021, Ms. Weidman denied Professor
Gardner’s request for a synchronous remote work accommodation,
stating:
Your accommodation request (as listed/written above) for
Fall 2021 is denied, as converting your three face-to-face
courses to an online modality is a fundamental alteration of
the course delivery. Your request to maintain office hours
and conduct/attend meetings remotely is also denied, as this
is also a fundamental alteration to how these duties are
conducted, and the service/product expected from our
students. The University has a duty to students who have
signed up for and expect face-to-face classes to be delivered
in that modality unless and until directed by commonwealth
authorities to discontinue face-to-face instruction.
JSUF 55: Ms. Martin did not speak with Dr. Gardner about her accommodation
request. Exh. 76 at 16.
JSUF 56: Ms. Weidman did not speak with Dr. Gardner about her Request for
Reasonable Accommodation form. Exh. 74 at 16-17.
JSUF 57: The Dean of the College of Business, Dr. Anne Carroll (“Dean Carroll”),
was not involved in the determination of Dr. Gardner’s request for remote work in

12

Fall of 2021, and therefore provided no objection to her request. App. Vol. VI (No.
8).
JSUF 58: The Chair of Professor Gardner’s Department, Dr. Gary Chao (“Dr.
Chao”), was not involved in the determination of [her] request for remote work in Fall
2021, and therefore provided no objection to her request. App. Vol. VI (No. 9).
JSUF 59: Ms. Martin prepared the Resolution Form for Ms. Weidman’s signature
and sent it to her on August 25th for approval, noting that the request is “denied as
requested.” Exh. 76 at 27; Exhs. 13 at 2 & 15 at 1.
JSUF 60: Ms. Martin used the template Ms. Weidman and Mr. Peña instructed her
to use on all faculty requests seeking remote work accommodations for courses that
were previously scheduled to be held in person. App. Vol. VI (No. 20); Exh. 75 at
57; Exh. 76 at 16; Exh. 77 at 13; 20-21, 37, 43.
JSUF 61: Ms. Martin used the same basic template to prepare denials for all the
remote work accommodations for the fall semester. App. Vol. VI (Nos. 19-20); Exh.
77 at 43; Exh. 16; App. Vol. V at 119; App. Vol. VII at 199.
JSUF 62: The University has no policy calling for the denial of employee requests
for

reasonable

disability-based

accommodations

on

the

ground

that

it

“fundamentally alters” any of the University’s course offerings, services or methods
of operation or administration. App. Vol. VI (No. 21).
JSUF 63: Allowing Dr. Gardner to teach her 2021 fall semester courses online
would not have entailed significant expense to the University, and was not infeasible
technology-wise; neither of these reasons were cited by KU in the denial and that is

13

not why it was denied. Exh. 73 at 67; Exh. 74 at 22; Exh. 75 at 93; Exh. 76 at 30-31;
Exh 79 at 16, 31-32; Exh. 80 at 22, 33. See also App. Vol. VI (No. 10).
JSUF 64: New technology had been recently installed across campus which “allows
[ ] for synchronous instruction for Fall 2020 and beyond.” App. Vol. IV, at 34.
JSUF 65: 13 per cent of KU’s course offerings for the 2021 Fall Semester were fully
online. Another 10% were delivered at least partially online. Exh. 33 at 7; Exh. 34 at
1.
JSUF 66: For the fall semester, Professor Gardner was scheduled to teach three of
her classes in-person and one online. Docs. 1 & 11, ¶ 56.
JSUF 67: Prior to the 2021 Fall Semester, she had taught Human Resources
Management (MGM 335) in a remote modality 3 times.
JSUF 68: Dr. Gardner was scheduled to teach two sections of Business and Social
Environment (MGM 210), one in-person and the other online.
JSUF 69: Prior to the 2021 Fall semester Professor Gardner had taught Business
and Social Environment sixteen times online, and also converted two sections from
in-person to online when the COVID-19 shutdown occurred in March, 2020. App.
Vol. VI at 150-53.
JSUF 72: On September 10, 2021, Dr. Hawkinson issued an “Update” on Covid-19
issues after it “came to our attention that some members of our community have
been planning a demonstration to protest the university’s Covid-19 protocols.” Docs.
1 & 11, ¶99.

14

JSUF 73: Dr. Hawkinson said that his reopening plan was fully within the COVID- 19
guidance from governmental authorities, including the CDC and other health
experts. Docs. 1 & 11, ¶100.
JSUF 74: At that time, CDC’s “Guidance for “IHEs” recommended “options for
accommodations, modifications, and assistance to students, faculty, and staff at
increased risk for severe illness that limit their exposure to risk and allow for
education and or work opportunities (such as virtual learning, telework, and modified
job responsibilities, including work-related meetings and gatherings). Docs. 1 & 11,
¶103.
JSUF 75: Classes were scheduled to start for the 2022 spring semester on January
24, 2022. Docs. 1 & 6, ¶104.
JSUF 76: On January 5, 2022, Professor Gardner submitted a request for
reasonable accommodation to DSO for the spring semester for a synchronous
remote teaching schedule as an accommodation for her disabilities, and to hold her
office hours and attend meetings remotely. Docs. 1 & 6, ¶106.
JSUF 77: This was substantively the same accommodation request that Professor
Gardner made in her previous accommodation request for the Fall 2021 semester in
August 2021.
JSUF 78: In response the DSO Interim Director, McKenzie Hollenbach (Ms.
Hollenbach”), advised Dr. Gardner via e-mail that “[t]he next step in the employee
accommodation request process is to schedule a meeting with me, so that we can
have an interactive discussion regarding your request for accommodations. During
our meeting, I will gather information and we will discuss what would be an effective

15

accommodation. After our meeting I will forward your request to the Assistant Vice
President for Human Resources, who is responsible for responding to the request. .
. . Please be aware, the [DSO] does not make final determination regarding
employee reasonable accommodations. . .” Exh. 4 at 1; Docs. 1 & 6, ¶ 107.
JSUF 79: During a meeting with Ms. Hollenbach on January 10, 2022, Professor
Gardner stated that she needed a remote teaching accommodation because her
immunosuppressing medications “place her at higher risk for contracting the new
variant of Covid-19.” Exh. 5 at 4.
JSUF 80: DSO had no authority to determine whether to grant Professor Gardner’s
request for a remote accomodation, and no one from HR attended the “interactive
meeting.” Docs. 1 & 6, ¶109.
JSUF 81: After the meeting on January 10, 2022, Ms. Hollenbach reported to Ms.
Weidman in an E-mail that Dr. Gardner had “submitted documentation of a medical
condition and ongoing medical treatment that causes her immune system to be
suppressed and makes her more susceptible to contracting illnesses.” And as
recommended by her medical provider, she was “requesting to work remotely using
synchronous Zoom for teaching, office hours, and meeting attendance.” Exh. 5 at 2;
Exh. 74 at 26.
JSUF 82: On January 12, 2022, without meeting with Professor Gardner, Ms.
Weidman denied her request on the same ground that she denied the previous one,
i.e., that converting her three face to face courses to an online modality is a
“fundamental alteration of the course delivery,” as would conducting office hours
online. Docs. 1 & 6 ¶110, See also Exh. 6 at 3; Exh. 74 at 49.

16

JSUF 83: The form also stated that as an Associate Professor, “in- person teaching
is an essential function of your job.” Docs. 1 & 6, ¶111.
JSUF 84: There is no policy, contractual definition, or pre-existing job description
defining “full duty” for an Associate Professor, much less one stating that teaching
in-person in the classroom is an essential function of the job. Docs. 1 & 6, ¶112.
JSUF 85: Allowing Dr. Gardner to teach her 2022 spring semester courses online
would not have entailed significant expense to the University and was not infeasible
technology-wise; neither of these reasons were cited by KU in the denial. Exh. 73 at
67; Exh. 74 at 22; Exh. 75 at 93; Exh. 76 at 30.
JSUF 87: Professor Gardner had four courses on her spring roster, one online and
three in-person. Docs. 1 & 6, ¶105.
JSUF 88: Dr. Gardner was scheduled for two sections of Business and Social
Environment (MGM 360), one in-person and one online. App. Vol. VI at 156.
JSUF 89: Prior to the Spring semester, she had taught Business and Social
Environment eighteen times online. App. Vol. VI at 150-56.
JSUF 90: Dr. Gardner was scheduled to teach Human Resources Management
(MGM 335) in-person. App. Vol. VI at 156.
JSUF 91: Prior to the Spring semester, Professor Gardner taught Human
Resources Management synchronously three times during the 2020-21 academic
year. App. Vol. 6 at 150-56.
JSUF 92: Dr. Gardner was scheduled to teach a Senior Seminar (MGM 380) inperson. App. Vol. 6 at 156.

17

JSUF 93: Prior to the Spring semester, Professor Gardner taught the Senior
Management Seminar twice, both times in online modalities. App. Vol. VI at 150-56.
JSUF 94: Dean Carroll was not involved in the determination of Dr. Gardner’s
request for a remote work accommodation for the spring 2022 semester, and
therefore provided no objection to her request. App. Vol. VI (Nos. 10-12); see also
Exh. 79 at 40; 43; 78.
JSUF 95: Dr. Chao was not involved in the determination of [her] request for remote
work accommodation for the spring 2022 semester, and therefore provided no
objection to her request. App. Vol. VI (Nos. 10-12); see also Dep. 20 at 3; Exh. 80 at
30-31.
JSUF 96: When Ms. Weidman denied Dr. Gardner’s accommodation request on
January 12th, she offered an “alternative accommodation” that would allow her to
teach behind a plexiglass shield and wear a face shield. Docs. 1 & 6, ¶ 118.
JSUF 97: This alternative accommodation was not discussed during Dr. Gardner’s
January 10, 2022 meeting with Ms. Hollenbach. Exhs. 5 at 4; 8 &42; Exh. 74 at 40.
JSUF 98: On January 14, 2022, Professor Gardner rejected Ms. Weidman’s
alternative proposal stating that it was “not a reasonable accommodation.” Exh. 7 at
1 & 5.
JSUF 99: By then, COVID-19 cases were on the rise, but testing and vaccination
and testing were still optional and classrooms had returned to pre-pandemic
configurations, leaving no room for social distancing. Outside the classroom, social
distancing was still not mandatory, and the modifications CDC had recommended to

18

make HVAC systems safer for students and staff still had not been made. Docs. 1 &
6, ¶120.
JSUF 100: KU’s “Quarantine, Isolation and Remote Work Protocols” for the spring
semester were published on January 14th, allowing faculty who test positive to
convert instruction from in-person to synchronous via Zoom for up to ten days.
Docs. 1 & 6, ¶121.
JSUF 101: The same day, through her counsel, Professor Gardner attempted to
resolve the spring semester accommodation dispute before classes began on
January 24th, and to secure restoration of the FMLA and sick time she had been
forced to use during the fall semester because her request for accommodation had
been denied. Docs. 1 & 6, ¶122.
JSUF 102: On January 19, 2022, counsel from PASSHE told Plaintiff’s counsel that
the accommodation request was properly denied. Docs. 1 & 6, ¶123.
JSUF 103: Meanwhile, in December 2021, KU asked Professor Gardner to submit a
new FMLA Employee Serious Health Condition Certification. She provided this
Certification, which was completed by Dr. Shah, on February 8, 2022. Exh. 31 at 78.
JSUF 104: Dr. Shah’s Certification stated that Dr. Gardner required vision-saving
immunosuppression therapy, and her current medication caused her to be
immunocompromised, and that he does not recommend in-person classes given her
immunocompromised state. The certification further stated that he recommended
that she be allowed to work remotely and that she can perform her job via remote
access. Id.

19

JSUF 105: In an E-mail on February 21, 2022:
From: Weidman, Jennifer
Sent: Monday, February 21, 2022 3:12 PM
To: Gardner, Carolyn Cc: Hollenbach, McKenzie Subject: Future accommodation
requests
Good afternoon, Dr Gardner,
In the interest of future planning, please advise if you intend
to again request accommodation for the Fall 2022 semester.
If you plan to do so, please provide notice to the Disability
Services Office, as well as indicating if the accommodations
requested will remain the same. If there is no change to the
accommodations requested, there is no need to submit a
new request form at this time; only the notice is needed.
Should you wish to change the accommodation requested,
please submit a new request form. Again, that should be
sent to the Disability Services Office at [e-mail].
Since you just provided updated medical documentation in
association with your FMLA paperwork, no updated medical
is required at this time for ADA accommodation purposes,
although another update will be requested again in the late
summer.
Regards, Jennifer
Exh. 9; see also Exh. 78 at 60-61.
JSUF 106: HR has no authority or direct involvement in academic planning. Exh. 74
at 67; Exh. 76 at 41. See also Exh. 75 at 39; 147; Exh. 72 at 45.
JSUF 107: After receiving Ms. Weidman’s February 21st correspondence-mail, Dr.
Gardner responded the following day stating, “Thank you for responding with the
information on my FMLA status. As I responded last month, I am represented by
Ms. Lorrie McKinley, [counsel’s e-mail], I will again request you include her on
correspondence on this legal matter until it is resolved.” App. Vol. VII at 208.

20

JSUF 108: Later that day (February 22, 2023), HR informed Dr. Gardner that her
sick leave balance was 525 hours, and she needed 423.75 to get through the
semester. App. Vol. VII at 207.
JSUF 109: By way of an e-mail to both Ms. Hollenbach and Ms. Weidman, Dr.
Gardner submitted a request for accommodation for the 2022 Fall Semester on
March 31, 2022 to work remotely using “current technology to teach face-to-face
classes. The class modality will not change. The students will be able to attend
class in the assigned classroom and I will use Zoom or other technology to teach in
the same room with the students.” Exh. 10.
JSUF 110: This was substantively the same accommodation request that Professor
Gardner had made in her previous two accommodation request forms: for the Fall
2021 semester in August 2021 and for the Spring 2022 in December 2021.
JSUF 111: The supporting letter from Dr. Shah was largely identical to the previous
letters that had been submitted with Dr. Gardner’s two previous accommodation
requests.
JSUF 112: On April 1, 2022, Ms. Hollenbach e-mailed Dr. Gardner as follows:
Good Afternoon Carolyn,
Thank you for sending your Request for Reasonable
Accommodations, as well as the most current letter from
your doctor.
I sent Jennifer Weidman from HR an email to let her know
the DSO has received your request for reasonable
accommodations, as well as a letter from your care provider.
Sincerely,
Exh. 29; Exh. 78 at 40. See also Exh. 74 at 61-62; 69.

21

JSUF 114: Professor Gardner E-mailed Ms. Weidman on April 7th and April 14th
requesting a status report on her fall accommodation request; the e-mail was cc’d to
Ms. Hollenbach. Exh. 30.
JSUF 115: Ms. Weidman, who was by now aware of the lawsuit Dr. Gardner had
filed, did not respond to either of Dr. Gardner’s E-mails.
JSUF 116a: On April 15, 2022, Ms. Hollenbach e-mailed Dr. Gardner as follows:
Dear Carolyn,
I’m reaching out to follow-up with you regarding your request
for reasonable accommodations. After a review of the
materials you provided, additional medical documentation is
required to properly evaluate your request. The
documentation should include the following information:
1. Onset date of the medical condition, specifically peripheral
focal chorioretinal inflammation of both eyes
2. Description of current treatment methods, including name
and onset date of medication causing immunosuppression
3. Description of level of immunosupression and affect on
daily life activities
4. Length of time anticipated for the medical condition of
peripheral focal chorioretinal inflammation
5. Length of time anticipated to be on medication causing
immunosupression
Prior to April 15, 2022, DSO had never advised Dr. Gardner that the medical
documentation she submitted from her doctor in support of her requests for
accommodation were in any way insufficient. Exh. 78 at 56. Dr. Gardner responded
on April 25, 2022:
Hello McKenzie,
You may not be aware, although Jennifer certainly is, that I
am represented by counsel in connection with KU’s handling
of my requests for accommodation, and my entitlement for
the fall semester is one of the issues in my pending lawsuit.
Obviously, any communications from KU pertaining to any of
those issues have to be addressed to my attorneys. They
have a lot of concerns about your 4/15 E-mail which they will
22

be raising with KU’s counsel. In the meantime, they have
authorized me to provide only the attached FMLA
documentation, which HR certainly has, but maybe you have
not seen. There has never been any question about my
disability, and that is not why my accommodation requests
have been denied. Jennifer said in her February 22nd E-mail
that it was not necessary for me to provide any further
information unless my medical situation had changed, and it
has not, or if my request for accommodation was somehow
different, which it isn’t.
Sincerely,
Carolyn
In response, Ms. Hollenbach e-mailed:
Dear Carolyn,
Thank you for reaching out.
In response to your email, I will defer to your attorney and
KU’s counsel in addressing my April 15th, 2022 email.
Sincerely,
McKenzie Hollenbach
JSUF 117: In an E-mail on April 26, 2022 to Deputy Attorney General Kathy Le, who
was then representing KU in the recently filed lawsuit, Plaintiff’s attorney attached
the FMLA paperwork that Dr. Gardner sent to DSO the day before. (Exh. 31). The email concluded with the following: “Please let me know if you would like to discuss
this any further. Otherwise, please advise DSO and HR to send any further inquiries
regarding her disability status through counsel.” Vol VII at 211.
JSUF 118: Dr. Gardner filed for a Temporary Restraining Order (TRO) on August
17, 2022 seeking an order pendente lite requiring KU to provide her with a remote
work accommodation for the 2022 Fall semester. ECF Doc. 16.
JSUF 119: On August 22, 2022, the Court denied the TRO on the ground that Dr.
Gardner would not suffer irreparable harm absent temporary restraints and that Dr.

23

Gardner was seeking mandatory affirmative relief to her current conditions of
employment. ECF Doc. 22; Exh. 44; see also App. Vol. VII at 213-15.
JSUF 120: As described in a letter from HR Generalist Debora Longenhagen on
October 3, 2022, Dr. Gardner had been “approved” for extended Leave Without Pay
(LWOP) from October 19, 2022 through July 25, 2023. However, she would “lose
her right to return to [her] position” if she remained on extended LWOP after 12:00
a.m. on April 18, 2023, at which time she would also lose her entitlement to benefits.
JSUF 121: On Friday, December 2, 2022, Dr. Gardner submitted to Ms. Hollenbach
a request for a remote work accommodation for the 2023 Spring semester. Exh. 45.
JSUF 122: This was substantively the same accommodation request that Professor
Gardner had made in her previous three accommodation requests for the Fall 2021
semester in August 2021, for the Spring 2022 semester in December 2021, and for
the Fall 2022 semester in March 2022.
JSUF 123: Dr. Gardner provided her September 13, 2022 FMLA Medical
Certification signed by Dr. Shah which provided the onset date of her autoimmune
condition, her current treatment with immunosuppressing medication, and his
recommendation that she work remotely. Exh. 43.
JSUF 124: In a letter E-mailed on December 6, 2022 entitled “Updated Leave
Information,” Ms. Weidman advised Dr. Gardner that she would have limited return
to work rights if her absence continued beyond 12:00 a.m. on January 24, 2023, at
which time she would also lose her entitlement to State System medical or life
insurance benefits. Exh. 46 at 2; Exh. 74 at 89.

24

JSUF 125: The letter noted she could enroll in the State System’s Affordable Care
Act health plan at her own expense.
JSUF 126: On December 15, 2022, Dr. Gardner submitted to Ms. Hollenbach an
updated letter from Dr. Shah which was dated December 8, 2022, but was
otherwise identical to his previous letter on January 6, 2022 setting forth her
diagnosis, her treatment with immunosuppressing medications for an indefinite
period of time, and his recommendation that she work remotely as a “dire”
precaution to protect her overall wellbeing due to her being immunocompromised.
Exh. 57.
JSUF 128: On December 20, 2022, Ms. Weidman wrote to Dr. Gardner and the
plaintiffs in the two related cases offering an alternative accommodation in a
classroom to be converted from a computer lab with a separate entrance, a cap of
35 students, additional ventilation and air exchange, including two portable air
scrubbers with both HEPA and MERV filters and bi-polar ionization unit on the heat
pump used for the space, reduced foot traffic, and an ADA-compliant instructor
podium, enclosed on three sides with a plexiglass shield. The deadline for accepting
or rejecting the proposed alternative was the close of business on December 22nd,
which was when the University was closing for the holidays until January 3, 2023.
Exh. 48; Exh. 74 at 97-98.
JSUF 129: Dr. Gardner responded to Ms. Weidman on December 22, 2022, asking
for additional information about the proposed new classroom that she believed her
doctor would need to evaluate the safety of the proposed alternative
accommodation. Exh. 48 at 2.

25

JSUF 130: On December 28, 2022, Dr. Gardner filed a second Motion for a TRO
requiring KU to provide her with a remote work accommodation for the Spring
Semester and/or to preclude them from terminating her work return rights and
medical benefits at midnight on January 24, 2023. ECF Doc. 34.
JSUF 131: Ms. Weidman responded on January 3, 2022, and thereafter exchanged
E-mails and additional information with Dr. Gardner between January 5th and 16th.
Exhs. 49-50.
JSUF 132: Pursuant to a hearing on Dr. Gardner’s application for a TRO on January
12, 2023, Dr. Gardner was ordered to provide another letter from Dr. Shah
specifically pertaining to whether the proposed alternative accommodation would be
a safe and effective accommodation for her disability.
JSUF 133: On January 18, 2023, Dr. Gardner submitted a letter from Dr. Shah
stating that Defendant’s alternative accommodation, while helpful, was not sufficient
to protect her from contracting COVID-19 and its potential consequences due to her
immunosuppressed condition, and reiterating his recommendation that she work
remotely. Exh. 58.
JSUF 134: On January 19, 2023, Dr. Gardner formally rejected Kutztown’s
alternative accommodation.
JSUF 135: On January 23, 2023, the Court entered a preliminary injunction
enjoining Defendants from terminating Dr. Gardner’s employment benefits and right
to return as a tenured professor without further Order of the Court. The injunction
was to expire on July 25, 2023. ECF Doc. No. 41.

26

JSUF 136: Because of the TRO, Dr. Gardner’s current work status is extended
leave without pay with benefits (medical and life insurance).
JSUF 137: Since the 2021 Fall Semester, there has been no change to KU’s policy
that faculty requests to convert in-person classes to online modality would cause
undue hardship on the University because of the “fundamental alteration to the
service provided to students under the University’s business model as an in-person
institution.” App. Vol. VI (No. 28).
JSUF 138: Since the 2021 Fall Semester, KU has never allowed an accommodation
in the form of a 100% remote teaching for any fulltime faculty.
PLAINTIFF’S SUPPLEMENTAL UNDISPUTED FACTS
The Court also makes the following factual findings from Plaintiff’s Statement of
Supplemental Facts 5 (ECF 52-1):
1. Dr. Gardner sought treatment and diagnostic services at Wills Eye Hospital
between February, 2019 and October, 2020 due to vision issues involving her
left eye. App. Vol. VII.
2. Dr. Shah testified that in December of 2020, he started Plaintiff on
immunosuppressing medications. ECF 49-6 at 16-21. According to Dr. Shah, “all
immune suppression falls under the category of chemotherapy.” Id. at 21.

Defendants object to Plaintiff’s citations to depositions from the Oross case on the basis that both cases
are factually distinct. The Court does not agree. While there are, of course, certain individual facts about
Mr. Oross that are distinct to the Oross case, both cases arise out of the University’s alleged blanket
policy that any request to change the course modality from in-person to remote for the Fall 2021
Semester and thereafter would be considered a substantial alteration to the University’s course offerings
and would represent an undue hardship to the University. Indeed, in the parties’ joint discovery plan, the
parties agreed that the depositions of Ms. Martin, Ms. Weidman, Mr. Pena and Dr. Hawkinson in this
case, would be “considerably shortened because they have already been deposed in the [Oross] case.”
ECF 14.
5

27

3. Dr.

Gardner

has

been

taking

immunosuppressing

medications

since

approximately December 29, 2020. Exh. 70 at 60; Ex 82 at 18-21.
4. Dr. Gardner’s immune system is suppressed due to the drugs she needs to
manage her autoimmune condition. Exh. 58; Exh. 74 at 28-29, 69-95; Exh. 78 at
40.
5. Because of the suppression of her immune system, Dr. Gardner was at high risk
for severe illness or death if she contracted COVID-19 in the Fall of 2021. Exh.
58; Exh. 82 at 28.
6. Other than imposing that Dr. Gardner teach, conduct office hours and hold
meetings online, Dr. Shah did not impose any other restrictions on Dr. Gardner’s
ability to perform her position as Associate Professor. Exh. 1 at 1.
7. The issue of Dr. Gardner’s medical condition being a disability “has never been
an issue” for KU. Exh. 49 at 3: Exh. 72 at 60; Exh. 74 at 95.
8. Under the Collective Bargaining Agreement (“CBA”), the evaluation of faculty
members at the University consists of three categories: effective teaching,
scholarship and service to the University. CBA Article 4 and Article 12 (ECF 521 at pp. 13-16); Exh. 79 at 17-18.
9. Dr. Hawkinson’s plan for the Fall Semester of 2021 was to require all faculty to
return to work in-person, without exception. Exh. 71 at 15-16; 23-24, 146.
10. Dr. Hawkinson intended for there to be no changes in course modality for the
Fall Semester of 2021. Exh. 71 at 41, 65, 213; Exh. 70 at 27; Exh. 64 at 3; App.
Vol. 4 at 53.

28

11. Dr. Hawkinson testified that he did not believe there was a protocol at the
University to allow employees not to come back to work in-person due to
COVID-19 concerns. Exh. 71 at 23, 146.
12. Faculty at the University have the authority to conduct office hours on campus or
online, depending on student needs or preferences. App. Vol. VI at 127 (No. 3).
13. Dr. Hawkinson and Ms. Weidman testified that for the Fall Semester of 2021,
each was aware that the CDC’s “Guidance for “IHEs” recommended options for
accommodations, modifications and assistance to students, faculty and staff at
increased risk for severe illness that limit their exposure to risk and allow for
education and or work opportunities (such as virtual learning, telework, and
modified job responsibilities). Exh. 71 at 81; Exh. 75 at 66.
14. After Dr. Gardner’s accommodation request for the Fall 2021 Semester was
denied and her FMLA eligibility expired on October 20, 2021, her only option for
maintaining her full-time active employment status at the time was to use her
accrued paid leave.
15. The plexiglass shield that Ms. Weidman offered to Dr. Gardner was not based
on Dr. Gardner’s specific condition but was generally offered to all faculty who
wanted to convert in-person classes to a virtual modality. Exh. 14 at 4; Exh. 76
at 32-33; Exh. 74 at 40.
16. After her second accommodation request was denied on January 12, 2022, Dr.
Gardner was left with only her one online class and her only option for
maintaining her full-time paid leave status at the time was to continue using her
accrued paid leave to cover 75% of her salary.

29

17. Ms. Weidman testified that although there had been no change in KU’s
“interpretation that converting classes from in-person to online is not a
reasonable accommodation,” by March 7, 2022, KU had “begun the process of
reaching out proactively to look forward to the fall to try and schedule
accordingly to avoid that issue.” Exh. 75 at 143; Exh. 74 at 58.
18. In March 2022, Ms. Weidman became aware of this lawsuit, which had been
filed on March 17, 2022. Exh. 74 at 70.
19. In April, 2022, Ms. Weidman directed Ms. Hollenbach to ask Dr. Gardner for
additional medical information. App. Vol. VII at 209.
20. Ms. Weidman testified that she does not supervise DSO and has no role in
determining whether an employee has a qualifying disability. Exh. 74 at 28.
21. On April 15, 2022, Ms. Hollenbach asked Dr. Gardner to provide additional
medical information pertaining to the nature and extent of her disability,
including the onset date, description of current treatments, description of level of
immunosuppression, length of time for the condition and length of time to be on
medication. Exh. 30.
22. Prior to April 15, 2022, DSO had never advised Dr. Gardner that the medical
documentation she submitted from her doctor in January of 2022 was
inadequate. Exh. 78 at 56.
23. Having already confirmed Dr. Gardner’s disability status and having sent her
accommodation request to HR in January, 2022, DSO no longer had jurisdiction
over the processing of Dr. Gardner’s request, nor did it have any role as to

30

whether the request would be approved or denied. Exh. 72 at 40; Exh. 74 at 29,
69; Exh. 78 at 37, 40-44.
24. Ms. Weidman testified that DSO did not advise HR that it needed any further
medical information. Exh. 74 at 65.
25. On April 25, 2022, in response to DSO’s April 15, 2022 email requesting more
medical documentation, Dr. Gardner wrote that because the request for
additional information pertained to issues in her pending lawsuit, her attorneys
would be communicating about it directly with defense counsel. However, she
did provide copies of her FMLA medical certifications. Exh. 29; Exh 30; Exh. 31.
26. In an email to defense counsel dated April 26, 2022. Plaintiff’s attorney attached
the FMLA paperwork that Dr. Gardner sent to Ms. Hollenbach the previous day.
Exh. 31.
27. Neither DSO nor HR made any further requests to Dr. Gardner for additional
medical information concerning the 2022 Fall Semester accommodation. Exh.
32.
28. Neither Ms. Weidman nor anyone else on KU’s behalf ever responded to Dr.
Gardner’s 3/22/22 request for the 2022 Fall Semester accommodation. Exh 72
at 37, 49; Exh. 74 at 79.
29. At no time after Ms. Weidman sent the February 22, 2022 email to Dr. Gardner
“in the interest of future planning” did Ms. Weidman ever speak to anyone with
authority over academic planning to avert a course-conversion barrier to Dr.
Gardner’s request for a synchronous remote work accommodation for the 2022
Fall Semester. Exh. 70 at 95; Exh. 71 at 213; Exh. 72 at 54; Exh. 74 at 58-59.

31

30. Since Ms. Weidman never responded to Dr. Gardner’s request for a remote
accommodation in the Fall 2022 Semester, the only option Dr. Gardner had to
remain in full-paid status was to exhaust her remaining 34 days of accrued paid
leave which expired on October 18, 2022. Exh. 44; Vol. VII at 213-215.
31. In an email dated December 16, 2022, DSO informed Dr. Gardner that her
medical documentation did not respond to the information that had been
requested on April 15, 2022, including the onset date for her vision impairment,
name and onset date for her medication and a description of the level of
immunosuppression and its effect on her daily life activities. Exh. 47 at 3-4.
32. On April 25, 2022, Dr. Gardner had provided Ms. Hollenbach with her FMLA
documentation which contained the onset date of her vision condition and her
immunosuppressing treatment. Exh. 29; Exh 31; Exh. 78 at 55, 57-61.
33. The parties have stipulated that for the 2023 Fall Semester, Dr. Gardner is
seeking a remote work accommodation and that KU is not willing to offer it.
DEFENDANTS’ SUPPLEMENTAL UNDISPUTED FACTS

The Court also makes the following additional factual findings from
Defendants’ Statement of Additional Undisputed Facts (ECF 62):
1. Dr. Hawkinson testified that KU’s business model is for students to take “the vast
majority of their classes online.” Hawkinson Dep. (Exh. P-70) at 47:4-15, 50:1421, 54:4-13.

32

2. Under the terms of the CBA, as of the Fall 2021 Semester, faculty members
receive an additional $15 per student who attends the faculty member’s class via
remote means. Exh. D-11 (CBA pp. 128-29).
3. Dr. Hawkinson testified that his plan for reopening campus for the 2021 Fall
Semester adopted recommendations from the Pennsylvania Department of
Health, the CDC, and the Pennsylvania Department of Education to enable the
campus to reopen its campus with modifications.
4. Dr. Hawkinson testified that during the 2020-2021 school year, KU granted
requests from over 200 hundred faculty members to teach remotely. Hawkinson
Dep. (Exh. P-70) at 39:16-23.
5. As a result, approximately 85% of classes during the 2020-2021 school year
were conducted fully online. Hawkinson Dep. (Exh. P-70) at 38:4-6.
6. During the 2020-2021 school year, 2,000 students withdrew from KU housing.
Hawkinson Dep. (Exh. P-70) at 38:4-6, 39:16-23.
7. Dr. Hawkinson testified that from 2015 up to the onset of the pandemic in March,
2020, approximately five to six percent of its curriculum was offered online.
Hawkinson Dep. (Exh. P-70) at 45:6-24.
8. Dr. Hawkinson testified that KU has never hired a full-time faculty member to
teach exclusively online. Hawkinson Dep. (Exh. P-70) at 26:15-24.
9. Dr. Hawkinson testified that aside from 2020, KU does not “have any faculty who
teach 100 percent online and are not present on campus.” Hawkinson Dep.
(Exh. P-70) at 85:5-7.

33

10. The CBA, under Article 4 “Duties and Responsibilities of Faculty Members,”
states that faculty members’ duties and responsibilities include keeping office
hours. Exh. D-11, p. 2.
11. Dr. Hawkinson testified that he strongly believes that faculty presence and
participation on campus—both in and out of the classroom—are critical to its
pedagogical model of fostering robust engagement between and among students
and faculty. Hawkinson Dep. (Exh. P-70) at 56:24-57:14; 112:22-115:4.
12. KU’s Business Administration Department does not offer any online-only
degrees.
13. Prior to the COVID-19 pandemic, Plaintiff taught her classes predominately inperson; she usually taught no more than one class online per semester. Carroll
Dep. (Exh. P-79) at 16:20- 17:21, 28:22-29:13.
14. Every class taught by Plaintiff online was also taught by her in-person at another
time in the school year; none was ever offered by the school as a solely online
class.
15. Dean Carroll testified that there were multiple issues with respect to Dr.
Gardner’s basically online or remote work performance. Carroll Dep. (Exh. P-79)
at 92:21-25.
16. As of 2019, Dr. Gardner has been on “interim review” status due to her lack of
scholarly activity. Pl. Dep. (Exh. P-69) at 182:21-184:7.
17. KU’s reopening plan for the Fall 2021 Semester largely continued KU’s COVID19 mitigation measures set in place the prior school year, which included, inter
alia, HVAC systems modified based on CDC recommendations; Plexiglass

34

available for classrooms; and personal protective equipment, including KN95
masks, made available for students and employees. Exh. P-36.
18. In August, 2020, Plaintiff’s husband moved from Pennsylvania to Greensboro,
North Carolina in order to start a new job at a nearby community college. Pl. Dep.
(Exh. P-69) at 51:11-16, 76:12-77:6. On November 30, 2020, Plaintiff joined her
husband in Greensboro where they lived in a rented condominium. Id.
19. Plaintiff testified that she moved to North Carolina once she learned that the
2021 Spring Semester at the University was going to be on synchronous Zoom.
Pl. Dep. (Exh. P.-69) at 133. She testified that she planned to return to the
University in August of 2021. Id.
20. Plaintiff continues to live in North Carolina and has not maintained a residence in
Pennsylvania since she moved there in 2020. Pl. Dep. (Exh. P-69) at 77:22-78:3.
28. Dr. Gardner has been taking Humira, an immunosuppressing medication,
since June 2021. Shah Dep. (Exh. P-82) at 17:4-17, 18:12-20:16
21. On August 20, 2021, Dr. Shah wrote a letter at Plaintiff’s request stating that “due
to the new, and more contagious, variant of COVID 19, the Delta variant,” he
recommended “she begin/continue to work remotely for teaching, office hours,
and meetings.” Exh. P-55 (CG-1).
22. On January 6, 2022, Dr. Shah wrote a letter at Plaintiff’s request stating that “due
to the new, and more contagious, variant COVID 19, Omicron Delta variant,” he
recommended “she begin/continue to work remotely for teaching, office hours,
and meetings.” Exh. P-56 (DEF-CG00018).

35

23. On December 8, 2022, Dr. Shah wrote a letter at Plaintiff’s request stating that
“due to the new, and more contagious, variant COVID 19, Omicron. Delta
Variant,” he recommended “she begin/continue to work remotely for teaching,
office hours, and meetings.” Exh. P-57.
24. On May 11, 2023, the federal government lifted the COVID Public Health
Emergency. Exh. D-4: CDC end of COVID emergency declaration (May 5, 2023).
25. However, Dr. Shah continues to maintain that it is not safe for Plaintiff to teach in
person, even in the special classroom offered by KU.
26. Dr. Shah testified that he would be comfortable with Dr. Gardner teaching in
person “[i]f things could get similar to polio . . . where people actually took the
polio vaccine, and if we just were never seeing polio mew diagnoses. . . that is a
level of low risk. And I think if society got to that level where we didn’t see it being
transmitted or seeing spikes. . .or ever seeing different variations that could bring
about horrible medical issues, I would feel comfortable.” Shah Dep. (Exh. P-82)
at 56:9-16.
27. Before writing any of his letters, Dr. Shah, who lives and practices medicine in
North Carolina, did not consider infection or vaccination rates in Berks County,
PA, where KU is located. Shah Dep. (Exh. P-82) at 36:2-13, 51:21-52:4, 75:1522. Dr. Shah testified that such information was “irrelevant” given the diverse
nature of a college campus. P-82 at 36; 51-52, 75-76; 81-82.
28. Ms. Weidman testified that on August 19, 2021, two days before Plaintiff
contacted the DSO with her formal accommodation request (on August 21,
2021), Plaintiff called her with questions about being able to teach the 2021 Fall

36

Semester online instead of in person and being able to use leave for that
semester. Weidman Dep. (Exh. P-74) at 6:21-8:6, 12:11- 13:14.
29. Ms. Weidman testified that she did not personally communicate with Dr. Gardner
after Dr. Gardner submitted the formal request for accommodation to the DSO
and before it was denied on August 25, 2021. Weidman Dep. (Exh. P-74) at
16:21-17:3.
30. Ms. Weidman testified that at some point in August 2021, she spoke with Dean
Carroll about the accommodation Plaintiff had requested, either generally or
specific to Plaintiff. Weidman Dep. (Exh. P-74) at 19:25-20:23.
31. On January 14, 2022, Plaintiff rejected the proposed alternative accommodation
of the plexi-glass shield and face shield for the Spring 2022 semester stating on
the form that “[t]his is not a reasonable accommodation. My request for a
synchronous teaching assignment is reasonable, feasible, and would impose no
significant difficulty, expense, or hardship on the University.” Exh. P-7 pp. 1-5.
32. On January 14, 2022, Plaintiff’s attorney sent counsel for KU a four-page letter
announcing her representation of Plaintiff, calling the alternative accommodation
inadequate, demanding that Plaintiff’s initial request of 100% remote teaching
must be granted by law and that failure to do so would result in a lawsuit. Exh. D7.
33. In an email dated January 19, 2022, Ms. Weidman offered Dr. Gardner the
additional alternative of teaching in a larger classroom so that she could be
spaced further away from her students. Exh. P-8.

37

34. In a responsive email dated January 20, 2022, Dr. Gardner noted that she is
represented by counsel and that any correspondence “about this ADA matter”
should go through her counsel or PASSHE legal. Exh. D-6.
35. On March 31, 2022, Plaintiff herself emailed Ms. Weidman and Ms. Hollenbach
attaching her request for a remote accommodation for the Fall 2022 Semester.
Exh. P-29.
36. On April 15, 2022, Ms. Hollenbach sent an email to Plaintiff requesting additional
medical documentation in order to “properly evaluate” Plaintiff’s request for a
remote accommodation. Exh. P-30.
37. Ms. Hollenbach’s email did not specify whether this information was needed for
purposes of determining whether Plaintiff was disabled or to assist in Plaintiff’s
most recent accommodation request. Exh. P-30.
38. On April 26, 2022, Plaintiff’s attorney sent an email to KU’s counsel, complaining
about Ms. Hollenbach’s April 15, 2022 e-mail to Plaintiff, which she characterized
as “alarming” and “concerning” and instructing that any further inquiries regarding
Plaintiff’s disability status be directed to Attorney McKinley. Exh. D-8.
39. Other than obtaining defense counsel’s consent for an August 4, 2022 mediation
before Magistrate Lloret, neither Plaintiff nor her counsel made any further
communications with the University regarding Plaintiff’s Fall 2022 Semester
accommodation request.

38

40. On December 20, 2022, Ms. Weidman presented Plaintiff with an alternative
accommodation for the Spring 2023 Semester as follows:
We will convert the computer lab behind Old Main to a
computer classroom. This room will have one row of desks
removed to allow for the installation of an ADA-compliant
presenter podium, which will be enclosed on three sides with
a plexiglass shield. The class capacity would be capped at
35 students. Appropriate audio-visual equipment (screen,
whiteboard, projector, etc.) will be installed. Two portable air
scrubbers will be placed in the room to increase ventilation
and air exchange. This is a standalone room with its own
exterior entrance and restroom facility. Access to the room
during the day will be limited to those classes scheduled
there and disinfecting wipes will be available to wipe down
areas as desired. This should provide a larger computerequipped space with additional ventilation and air exchange
and reduced foot traffic.
In order to have this work completed in time for the start of
the spring semester, we will need to submit the Facilities and
IT work orders in a very short timeframe. If you have
questions about our offer or would like to discuss, please let
me know. I am in the office the rest of the week. I would ask
that you let me know if you accept or reject the offered
accommodation by the close of business on Thursday
12/22/22.
Exh. D-9, pp. 5-6.
41. On December 22, 2022, Dr. Gardner responded to Ms. Weidman by asking

ten questions concerning the proposed alternative accommodation.
I am assuming this offer of an accommodation is an
acknowledgement by the university of my medical condition
being treated as disability and there is no need to respond to
the request by McKenzie Hollenbach for further medical
information. If I’m wrong, of course, I will treat your offer as
offered prematurely at this time.
Assuming you have no questions on my disability, your offer
raises questions for me related to my disability-related health
and safety concerns. In order to minimize my interactions
with Dr. Shah (you can understand that a medical school
39

professor who is also a practicing physician would prefer I
have all of the information at one time) would you kindly
answer the following question about the proposed
accommodation so I can go to him with a completed plan.
1. How would I enter the building safely? Would I go straight
from my car to class? If not, how would I navigate the
elevators and/or stairwell leading from my office to the
classroom building? (The current letter from my doctor
requires me to avoid crowds.)
2. If I am using my office for office hours, how would the
students be distanced from me there? Would I be able to
require masks?
3. Would the students in my classes be required to be
current with the Covid vaccines or report their status of
same?
4. Would students be tested for Covid at regular intervals?
Would they be required to have a negative Covid test on the
first day of class?
5. Could the students be required to wear an N-95 mask in
the classroom?
6. What are the physical dimensions of the classroom?
Would the 35 students be socially distanced?
7. Since this room will remain a computer classroom, it is
difficult to imagine how a computer lab would be a conducive
environment for my classes. Some labs have had laptops
that were stowed in the computer tables when not needed,
allowing for students to be sitting at a regular desk/table
environment. What would be the computer setup in the lab?
8. You mention the access to the classrooms during the day
will be limited to those classes scheduled there. Would those
classes be only for those faculty needing this kind of
accommodation? Would this lab be open in the evening to
any student or faculty?
9. Would access to the restroom facility in the building be
limited to those individuals (students and faculty) using the
building?
10. Would adding the two air scrubbers put the classroom in
compliance with the CDC Guidelines for the air filtration
suggested for Institutes of Higher Education?
If you could kindly respond as soon as you possibly can, I
will present one completed plan to my doctor.

Exh. D-9, pp. 4-5.
40

42. On January 3, 2022, Weidman provided a response to each of the ten

questions as follows:
1. The classroom in question is on the first floor in a standalone
building behind Old Main, with a ground-level exterior entrance.
There is a parking area directly behind the building. We
recommend you avoid use of the elevator if you want to avoid
being in a confined space with others, and there shouldn’t be
crowds in that stairwell in Old Main.
2. You can have the student seated as far away from you in your
office as possible or you can schedule your office hours in an
alternate location providing you with more space. You can ask
someone to wear a mask, but we cannot require anyone to wear a
mask.
3. Covid vaccines are not required of anyone. Students are not
required to disclose their vaccination status. In addition, these
safeguards we are offering are to address these concerns.
4. Covid testing is not required. The safeguards being offered are
to address your safety concerns.
5. No, masks of any type may not be required.
6. The room holds 48 seats. In order to provide greater social
distancing, we are capping the enrollment at 35 students. We
would eliminate the first row of seats to install ADA-compliant
presenter podium, which will be enclosed on three sides with a
plexiglass shield. In addition the first row of seats would be left
empty.
7. We are installing all the necessary computer and A/V
equipment to make the classroom conducive to learning. Whether
there is a 2 computer monitor or laptop setup should not interfere
with your delivery of the course material to your students.
8. During the day, access to the room would be limited to those
students and faculty with classes scheduled in that room. The only
classes to be scheduled in this room would be for those faculty
needing this type of accommodation. The room would remain
open to any student or faculty in the evenings. We are providing
disinfecting wipes in the classroom for use by anyone who may
wish to do so.
9. While use of the restroom is not specifically restricted, unless
you are using that classroom, you wouldn’t know there was a
restroom there.
10. The CDC guidelines provided recommendations/suggestions,
not requirements. Two air scrubbers will address the ventilation
and air exchange in the classroom.

Exh. D-9, pp. 2-3.

41

43. On January 5, 2023, Dr. Gardner responded with three additional questions

as follows:
Regarding number 6—thank you for the room capacity. I was
asking for the physical dimensions of the room so I could calculate
the square footage. If you have the square footage that would be
fine. Otherwise, the dimensions of the room would be helpful.
Regarding number 7, would you happen have the actual room
computer configuration. Could we get it from IT? There is quite a
difference in the how the space would work for my type of courses
regarding the computer monitors, etc. My students engage in
group activities. There is considerable academic literature in this
area known as the sociiomateriality of learning spaces that
address the learning environment.
Regarding number 10, would you provide more information on the
air scrubbers.
I have reached out to my doctor.

Exh. D-9, p. 2.
44. On January 13, 2023, Ms. Weidman responded to these follow

up questions and asked Dr. Gardner to inform her by January 16,
2023 if the proposed classroom was acceptable:

The room is 11,212.72 cubic feet (1401.59 s.f. x 8’ high ceiling).
The current computers in the room are all-in-one units on the
desktops but students seated will be able to see each other and
the speaker at the front of the room. The Carrier Air Scrubbers
have HEPA filters and MERV 13 filters. The goal is to have a
minimum of 6 air changes per hour. One air scrubber in that room
can’t meet the demand, so we would place two units. We also
have a bi-polar ionization unit on the heat pump supplying this
space and increased MERV filtration. No manufacturer will certify
that with the use of their equipment the air in the space is COVID
free. All that can be done is add layers of protection to minimize
the odds of catching COVID in any particular space. Please let me
know if you have any other questions. Based upon the information
above, please advise if you would like to accept these reasonable
accommodations and return to teaching as described above, or if
you wish to continue with an FMLA leave for the spring semester.
Please respond by end of business on 1/16/23. As you are aware,
classes are beginning in less than two weeks. This will allow the
department to plan accordingly.

42

Exh. D-9, pp. 1-2.
45. In an email dated January 16, 2023, Dr. Gardner responded as follows:
Thank you for the information. As you know, the current TRO
litigation is not yet resolved, and KU is not open for business on
Monday, January 16th in observation of Martin Luther King Day.
As you are aware that Judge Schmehl has asked me to provide a
supplemental letter from my doctor by January 18, 2023 regarding
your recent proposal. I am making my best efforts to do that. My
attorneys will be addressing these issues with the doctor’s office,
the Court, and the OAG next week.

Exh. D-9, p.1.
46. In an email dated January 19, 2023, Dr. Gardner formally rejected the
proposed accommodation based on the recommendation of Dr. Shah and
requested, as an alternative accommodation, an extension of her Leave Without
Pay status. Exh. 31, p.3.
47. Plaintiff did not propose any additional measures for the University to take to
make the proposed large classroom acceptable for her to teach in person.
DISCUSSION
The Court will begin its analysis with the main claim in this case---Plaintiff’s
claims in Counts Three and Four for direct disability discrimination under the RA based
on direct evidence and disability discrimination based on pretext. As the Court did in the
Oross case, the Court will only address the disability discrimination claim based on
pretext so that it can make a complete and thorough analysis of the discrimination
issues in this case.
The familiar framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 793–94, (1973), for discrimination claims under Title VII is equally applicable
to discrimination claims under the RA. Wishkin v. Potter, 476 F. 3d 180, 185 (3d Cir.
43

2007). Under the McDonnell Douglas burden shifting paradigm, plaintiff has the initial
burden to make a prima facie showing of discrimination, but if she does so, the burden
shifts to the employer to articulate some legitimate, nondiscriminatory reason for the
employment action. McDonnell Douglas, 411 U.S. at 802. If the defendant meets this
burden, the presumption of discriminatory action raised by the prima facie case is
rebutted. Tex. Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981).
However, the plaintiff must then be afforded an opportunity to show that the employer's
stated reason for the employment action, such as plaintiff's termination, was
pretextual. McDonnell Douglas, 411 U.S. at 804. In order to prove the employer's
explanation is pretextual, the plaintiff must “cast [ ] sufficient doubt upon each of the
legitimate reasons proffered by the defendant so that a factfinder could reasonably
conclude that each reason was a fabrication ... or ... allow[ ] the factfinder to infer
that discrimination was more likely than not a motivating or determinative cause of the
adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.1994). A
plaintiff who has made out a prima facie case may defeat a motion for summary
judgment by either “(i) discrediting the employer's proffered reasons, either
circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct,
that discrimination was more likely than not a motivating or determinative cause of the
adverse employment action.” Id. at 764.
To establish a prima facie case of discrimination under Section 504 of the RA, a
plaintiff must initially show, “(1) that he or she has a disability; (2) that he or she is
otherwise qualified to perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) that he or she was nonetheless

44

terminated or otherwise prevented from performing the job.” Donahue v. Conrail, 224 F.
3d 226, 229 (3d Cir. 2000) (citation omitted). “If the plaintiff is able to meet these
burdens, the defendant then bears the burden of proving, as an affirmative defense, that
the accommodations requested by the plaintiff are unreasonable, or would cause an
undue hardship on the employer.” Id. An undue hardship involves “significant difficulty
or expense in, or resulting from, the provision of the accommodation.” 29 C.F.R. § 1630,
App. § 1630.2(p).
The parties have stipulated that “[f]or purposes of summary judgment,
Defendants do not dispute that Dr. Gardner has a disability as defined by Section 504.”
JSUF at 14. Indeed, the issue of Plaintiff’s medical condition being a disability “has
never been an issue” for KU. Exh. 49 at 3; Exh. 72 at 60; Exh. 74 at 95.
The parties have further stipulated that Dr. Shah diagnosed Plaintiff in
December, 2020 as suffering from “peripheral focal chorioretinal inflammation and
panuveitis of both eyes, an auto-immune condition for which there is no cure.” JSUF 16.
They also stipulated that Dr. Shah had explained to Dr. Gardner that the disease was
“potentially vision-threatening and potentially blinding.” JSUF 17. Because of the
suppression of her immune system, Dr. Gardner was at high risk for severe illness or
death if she contracted COVID-19 in the Fall of 2021. Exh. 58; Exh. 82 at 28. The Court
finds there is no dispute in the record that Plaintiff was disabled from the time her first
request for a remote work accommodation was denied on August 26, 2021 through
June 11, 2023, the date she filed her motion for partial summary judgment.
For a plaintiff to be “qualified” under the RA, she “must ‘satisf[y] the prerequisites
for the position, such as possessing the appropriate educational background,
45

employment experience, skills, licenses, etc.’ and, she must be able to ‘perform the
essential functions of the position held or desired, with or without reasonable
accommodations.’” Taylor v. Phoenixville School Dist., 184 F. 3d 296, 311 (3d
Cir.1999). “The determination of whether an individual with a disability is qualified is
made at the time of the employment decision, and the burden is on the employee to
prove that he is an ‘otherwise qualified’ individual.” Kieffer v. CPR Restoration &
Cleaning Serv., LLC, 200 F. Supp. 3d 520, 533 (E.D. Pa. 2016), aff’d, 733 Fed. Appx.
632 (3d Cir. 2018) (citing cases).
In this case, the first “employment decision” was made on August 26, 2021, when
Ms. Weidman denied Plaintiff’s request for a synchronous remote work accommodation
for the Fall 2021 Semester. JSUF 54. There is no dispute that Plaintiff has the
appropriate educational background and employment experience to perform the job of
Associate Professor of Business Administration at KU. In fact, she has been a tenured
professor at KU since 2011. The issue concerns whether Plaintiff can perform the
“essential functions” of that position, with or without reasonable accommodation.
The Defendants argue that an essential element of Plaintiff’s job as Associate
Professor of Business Administration is to teach and conduct office hours in-person.
Plaintiff responds that teaching and conducting office hours in-person is not an essential
function of her job as both she and other faculty members have synchronously and
successfully taught some of their classes remotely in the past and the University even
has a framework in place for doing so.
It is well-established that "[w]hether a particular function is essential is a factual
determination that must be made on a case-by-case basis [based upon] all relevant

46

evidence." Turner v. Hershey Chocolate U.S., 440 F.3d 604, 612 (3d Cir.
2006) (quoting Deane v. Pocono Medical Ctr., 142 F.3d 138, 148 (3d Cir. 1998)); see
also Skerski v. Time Warner Cable Co., 257 F.3d 273, 279 (3d Cir. 2001) (same). In
addition to stating that the essential function determination is a factual question, our
Court of Appeals has recommended that it should typically be left for the jury to
decide. See Deane, 142 F.3d at 148 (refusing to grant summary judgment on the basis
that the question of whether lifting heavy objects was an essential function of a nurse
was a fact question for the jury); see also Skerski, 257 F.3d at 280 (reversing district
court's holding that climbing was an essential function of installer technician and
cautioning against snap judgments regarding essential functions); Turner, 440 F.3d at
613 ("[T]he fact issue as to `essential function' must be decided by a jury.").
Whether a job duty is an "essential function" turns on whether it is "fundamental"
to the employment position. 29 C.F.R. § 1630.2(n)(1); Turner, 440 F.3d at 612 (quoting
29 C.F.R. § 1630.2(n)(1)). The term "essential function" does not include the "marginal"
functions of the position. Id. As stated by the Court of Appeals in Skerski:
The regulations further set forth a non-exhaustive list of
seven examples of evidence that are designed to assist a
court in identifying the `essential functions' of a job. They
include: (1) the employer's judgment as to which functions
are essential; (2) written job descriptions prepared before
advertising or interviewing applicants for the job; (3) the
amount of time spent on the job performing the function; (4)
the consequences of not requiring the incumbent to perform
the function; (5) the terms of a collective bargaining
agreement; (6) the work experience of past incumbents in
the jobs; and/or (7) the current work experience of
incumbents in similar jobs.
Skerski, 257 F.3d at 279 (citing 29 C.F.R. § 1630.2(n)(3)).

47

Although the determination of whether a job duty is an “essential function”
normally is a question for the jury, the Court finds that in this case there are no factual
issues for a jury to resolve and the Court can make the determination as a matter of
law.
Under the CBA, the evaluation of faculty members at the University consists of
three categories: effective teaching, scholarship and service to the University. CBA
Article 4 and Article 12. (ECF 52-1 at pp. 13-16); Exh. 79 at 17-18.
Defendants do not cite to any provision in the CBA or in any University job or
course description which states that teaching in-person in the classroom and conducting
office hours in-person are essential functions of the position of Associate Professor in
general and of Plaintiff’s position in particular. JSUF 38, 84. On the contrary, according
to KU’s own published marketing materials, distance education is a “critical component
to the University’s mission to lead itself into the future.” JSUF 10. The University admits
that it has a dedicated team of instructional designers, media producers, and technical
support staff that collaborates with faculty “to ensure that the online experience reflects
the rigorous education for which [it] is known.” JSUF 11. Under the University’s Course
Design Principles and Models, synchronous online instruction takes place 100%
remotely using Zoom or other video conferencing software, which allows for virtual
interaction between instructors, students and colleagues in real time. JSUF 29. Indeed,
“[n]ew technology had been recently installed across campus which ‘allows [] for
synchronous instruction for Fall 2020 and beyond.’” JSUF 64.
While the Court recognizes that prior to the COVID-19 pandemic, KU had never
had a faculty member who taught 100% of his of her classes online or remotely, KU had

48

in fact offered a limited number, approximately five-six percent of its course offerings, as
online classes from 2015 until the beginning of the pandemic in 2020. See Hawkinson
Dep. at 45. During the Spring 2020 Semester, KU temporarily delivered courses in an
online format and faculty held office hours online and conducted faculty and committee
meetings remotely. JSUF 19. The parties have further stipulated that in the Fall
Semester of 2021, which is the initial period involved in this litigation, 13% of the
University’s course offerings were fully online, while another 10% were delivered at
least partially online. JSUF 65.
With respect to Professor Gardner in particular, for the 2021 Fall Semester, she
was scheduled to teach three of her classes in person and one class online. JSUF 66.
In fact, “[p]rior to the 2021 Fall Semester, Dr. Gardner had taught Human Resources
Management (MGM 335) in a remote modality 3 times.” JSUF 67. She had also taught
“Business and Social Environment” 16 times online, and also converted two sections
from in-person to online when the Covid-19 shutdown occurred in March, 2020.” JSUF
69. Between the Fall 2006 Semester and the conclusion of the 2020 Fall Semester, Dr.
Gardner who had received her certificate in advanced online teaching from KU in 2013,
had taught 38 classes online. JSUF at 12-13. She had also taught three classes and
supervised Independent Study and an internship online in the 2020 Spring Semester
after the shut-down occurred. JSUF 20 and 21. For the Fall 2020 Semester, Dr.
Gardner was granted a flexible work arrangement where she taught all of her courses
synchronously online. JSUF 28. Dr. Gardner continued to teach her full course load
online for the first half of the Spring 2021 Semester. JSUF 30. All of these statistics

49

belie the University’s claim that teaching in- person is an essential function of Plaintiff’s
job as Associate Professor of Business Administration.
Other than citing Dr. Hawkinson’s testimony that he personally believed that inperson instruction is more effective than remote instruction, the Defendants did not
submit any empirical data that would indicate that there was any diminution in the
quality of a class as the result of the course being offered online in general or as the
result of any of Professor Gardner’s classes being offered online in particular. In fact,
neither Dean Carroll nor Dr. Chao objected to Plaintiff’s request for a remote work
accommodation for the Fall 2021 Semester.
Since the Court finds from the undisputed record that teaching in-person and
conducting office hours in-person are clearly not essential functions of the job of
Associate Professor of Business Administration at the University and that Professor
Gardner can fully perform the essential functions of her job by teaching remotely (as
she had done in the past), Professor Gardner has demonstrated that she was “qualified”
for purposes of a prima facie case under Section 504 of the RA.
Third, Plaintiff must establish that “‘[s]he has suffered an otherwise adverse
employment decision as a result of discrimination.’” Shaner v. Synthes, 204 F.3d 494,
500 (3d Cir. 2000). “An adverse employment action constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
Professor Gardner has satisfied the third element of a prima facie case of
discrimination by demonstrating that the Defendants’ repeated denial of her request for

50

an accommodation of remote teaching and office hours forced her to exhaust all of her
accrued paid leave in order to remain on full-time paid status for the Fall Semester of
2021 and thereafter. PSUF 14, 16, 30. In the absence of court intervention, Plaintiff also
would have been forced to give up her medical benefits as of December 29, 2021 while
retaining only limited return to work rights.
Having found that Plaintiff has established all three elements for a prima facie
case of disability discrimination under the RA, the Court now addresses whether the
Defendants have demonstrated that Plaintiff’s request for a synchronous remote work
accommodation was unreasonable or would have caused an undue burden on the
University.
The parties have stipulated that allowing Dr. Gardner to teach her four 2021 Fall
Semester classes online would not have “entailed significant expense to the University,
and was not infeasible technology-wise.” JSUF 63, 85. Defendants have not produced
any evidence of any undue burden 6 in terms of expense or difficulty that the University
would incur if the modality of Professor Gardner’s classes was changed from in-person
teaching to remote teaching. On the contrary, the record reveals that the University had
a framework for remote teaching already in place and that existing technology at the
University would have allowed Professor Gardner and her students to see and interact
with each other in real time without requiring any significant difficulty or expense to the
University. JSUF 63, 64. Indeed, Professor Gardner had just taught her classes in the
Fall of 2000 and the Spring of 2021 using the University’s remote format. And to the

Although Defendants concede that they did not plead undue burden as an affirmative defense in their
Answer to the Complaint, they claim Plaintiff “has been on notice of the defense for at least the last twelve
months. See Doc. 21 (filed 8/21/22), at Brief pp. 4-6 & 16 [Defendants’ Memorandum of Law in
Opposition to Plaintiff’s Motion for a Temporary Restraining Order]” ECF 63 at p. 7.
6

51

extent the Defendants claim that the undue burden is to the students who signed-up for
Plaintiff’s Fall 2021 Semester classes on the assumption that such classes would to be
in-person, student preferences simply do not qualify as an undue burden under the RA
and, in any event, must yield to the requirements of Section 504 of the RA. There is
simply no evidence in the record from which a reasonable jury could conclude that Dr.
Gardner’s requested accommodation was unreasonable or would have caused an
undue burden on the University.
Having found that Plaintiff has established a prima facie case of disability
discrimination under Section 504 of the RA and that the Defendants have not produced
any evidence of an undue burden, the Court next considers whether the University has
met its burden to articulate a facially “legitimate non-discriminatory” reason for the
denial of Plaintiff's request for an accommodation. This “relatively light” burden is met “if
the employer provides evidence, which, if true, would permit a conclusion that it took the
adverse employment action for a non-discriminatory reason.” Burton v. Teleflex Inc.,
707 F.3d 417, 426 (3d Cir. 2013). Notably, a defendant “need not prove that the
articulated reason actually motivated its conduct” at this stage. Id. Rather, “[t]he
proffered reason need only raise a genuine issue of fact as to whether the employer
acted impermissibly.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d
Cir. 2003).
Here, the Court finds that, solely for this phase of the McDonnell-Douglas
paradigm, the University has articulated a legitimate, non-discriminatory reason for not
permitting Plaintiff to teach her four classes remotely and not conduct her office hours
remotely, namely that converting classes and office hours from an in-person modality to
52

a remote modality would be a fundamental alteration of the University’s course offerings
to students.
As a result, the burden now shifts back to Professor Gardner to show that the
University’s legitimate non-discriminatory reason was a pretext or fabrication and that
discrimination was more likely than not a motivating or determinative cause of the
decision not to grant Plaintiff’s request for an accommodation.
The parties have stipulated that during a meeting in late July or early August of
2021, Mr. Pena and Ms. Weidman “concluded that converting in-person classes to
online was not a reasonable accommodation for the University.” JSUF 39. Ms. Martin
used the template Ms. Weidman and Mr. Pena instructed her to use on all faculty
requests seeking remote work accommodations for courses that were previously
scheduled to be held in-person. JSUF 60. The parties have further stipulated that Ms.
Martin used the same basic template to prepare denials for all the remote work
accommodations for the fall semester [of 2021]. JSUF 61.
Yet, the University’s ADA Employee Policy, DIV-200, “requires that all
accommodation requests be evaluated on an individual basis to determine whether the
provision of such accommodation would create an undue hardship to KU.” JSUF 46.
The ADA Employee Policy also provides that “if the employee has a qualifying disability
and with or without reasonable accommodations, can perform the essential functions of
a position, a reasonable accommodation, if available, and not creating an undue burden
to KU, should be provided.” JSUF 47.
However, there is no evidence in the record that any of the Defendants (or
anyone else at the University) ever considered Plaintiff’s particular and serious

53

individual circumstances before denying her request to teach and conduct office hours
remotely for the Fall Semester of 2021 or anytime thereafter.
For instance, there apparently was no consideration given to the fact that at the
time Professor Gardner made her first formal request for a remote accommodation on
August 11, 2021, she had been diagnosed by Dr. Shah as suffering from “peripheral
focal chorioretinal inflammation and panuveitis of both eyes, an auto-immune condition
for which there is no cure.” JSUF 16. Nor is there any evidence that any consideration
was given to Dr. Shah’s opinion that this disease was “potentially vision-threatening and
potentially blinding,” JSUF 17, or that because of the suppression of her immune
system, Dr. Gardner was at high risk for severe illness or death if she contracted
COVID-19 in the Fall of 2021. Exh. 58; Exh. 82 at 28. Indeed, even the CDC’s July 21,
2021 “Guidance for Institutions of Higher Education (IHE)” recommended “options for
accommodations, modifications, and assistance to students, faculty, and staff at
increased risk for severe illness that limit their exposure to risk and allow for education
and or work opportunities (such as virtual learning, telework, and modified job
responsibilities, including work-related meetings and gatherings).” JSUF 74. Dr.
Hawkinson and Ms. Weidman both testified that each was aware of the CDC’s July
2021 Guidance. Exh. 71 at 81; Exh. 75 at 66.
Instead, the record reveals that Mr. Pena, Ms. Weidman and Ms. Martin simply
denied Professor Gardner’s request for an accommodation based on their recently
devised mantra that any accommodation request that would change the modality for a
scheduled class would fundamentally alter the course and therefore place an undue
burden on the University. Clearly, allowing Professor Gardner to teach only four courses

54

and conduct her office hours online during the Fall 2021 Semester when the University
offered the vast majority of its classes in-person, would not have fundamentally altered
the University’s pedagogical model.
Based on the uncontroverted record in this case, the Court finds, as a matter of
law, that the Plaintiff has directly discredited the Defendants’ proffered reason for
denying her request for a reasonable accommodation and that their actions were
pretextual. It certainly seemed like the University was bent on returning to in-person
instruction in the 2021 Fall Semester no matter what the circumstances or effect were
on any faculty member. Accordingly, judgment will be entered in favor of Plaintiff and
against the University on her claims for intentional discrimination (Counts Three and
Four).
The Court now turns to Plaintiff’s claim of discrimination based on a failure to
accommodate. “[A]n employer discriminates against a qualified individual with a
disability when the employer does ‘not make reasonable accommodations to the known
physical or mental limitations of the individual unless the employer can demonstrate that
the accommodation would impose an undue hardship on the operation of the business
of the [employer].’ ” Taylor, 184 F.3d at 306 (quoting 42 U.S.C. § 12112(b)(5)(A)). To
determine the appropriate reasonable accommodation, the employer should initiate the
interactive process. See 29 C.F.R. § 1630.2(o )(3). “Once a qualified individual with a
disability has requested provision of a reasonable accommodation, the employer must
make a reasonable effort to determine the appropriate accommodation. The appropriate
reasonable accommodation is best determined through a flexible, interactive process
that involves both the employer and the [employee] with a disability.” 29 C.F.R. pt. 1630,

55

app. § 1630.9. Both parties bear responsibility for participating in this
process. Taylor, 184 F.3d at 312.
Although “an employer has a duty to offer a reasonable accommodation to a
qualified employee, ‘an employee cannot make [the] employer provide a specific
accommodation if another reasonable accommodation is instead provided.’” Solomon v.
Sch. Dist. of Philadelphia, 532 F. App'x 154, 158 (3d Cir. 2013) (non-precedential)
(quoting Hankins v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996)); see
also Yovtcheva v. City of Philadelphia Water Dep't, 518 F. App'x 116, 122 (3d Cir.
2013) (non-precedential) (“[A]n employer is not obligated to provide an employee the
accommodation he requests or prefers, the employer need only provide some
reasonable accommodation.” (quoting Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th
Cir. 1996))); Hofacker v. Wells Fargo Bank Nat'l Ass'n, 179 F. Supp. 3d 463, 469 (E.D.
Pa. 2016) (“[A]n employer has no requirement to provide an employee the exact
accommodation that they want; rather, all the interactive process requires is that
employers make a good-faith effort to seek accommodations.” (internal quotation marks
and alterations omitted)).
In order for an employer to be found liable for discrimination on the basis of
failure to accommodate, the Plaintiff must produce evidence that: “`(1) he was disabled
and his employer knew it; (2) he requested an accommodation or assistance; (3) his
employer did not make a good faith effort to assist; and (4) he could have been
reasonably accommodated.’” Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d
Cir. 2017) (quoting Armstrong v. Burdette Mem'l Hosp., 438 F.3d 240, 246 (3d Cir.
2006)) (additional citations omitted). “A reasonable accommodation is one that enable[s]
56

an individual with a disability who is qualified to perform the essential functions of that
position … [or] to enjoy equal benefits and privileges of employment.” 29 C.F.R. §
1630.2(o)(1)(ii)-(iii).
“Employers can show their good faith in a number of ways, such as taking steps
like the following: meet with the employee who requests an accommodation, request
information about the condition and what limitations the employee has, ask the
employee what he or she specifically wants, show some sign of having considered [the]
employee's request, and offer and discuss available alternatives when the request is too
burdensome.” Taylor, 184 F. 3d at 317 (3d Cir.1999).
With regard to the first element, the University does not dispute that Professor
Gardner was disabled and that it was aware of her disability. There is also no dispute
that Professor Gardner requested an accommodation of teaching her classes and
conducting office hours remotely on August 20, 2021. Just six days later, Ms. Weidman
denied the request. The parties have stipulated that “[a]ccording to KU’s Human
Resources website, the HR Director [Ms. Weidman] will work closely with the
employee’s supervisor, manager, chair and/or Dean to gather the relevant information
necessary to respond to the request and assess whether a particular accommodation
will be effective, and “may convene a meeting to continue the interactive process to
discuss the requested accommodation as well as alternative accommodations that may
be effective in meeting the requester’s needs.” JSUF 52. The parties have stipulated
that before Dr. Gardner’s request was denied, neither Ms. Martin nor Ms. Weidman had
even spoken to Dr. Gardner about her request for accommodation. JSUF 55, 56. Nor
had anyone at the University requested any input from the Dean Carroll or from Dr.

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Chao. JSUF 57, 58. Instead, the parties have stipulated that in officially denying Dr.
Gardner’s requests for a remote work accommodation, Ms. Martin used the template
Ms. Weidman and Mr. Peña instructed her to use to deny all faculty requests seeking
remote work accommodations for courses that were previously scheduled to be held in
person. JSUF 60, 61. Based on the previous discussion concerning pretext, supra, and
the undisputed record in this case, the Court finds, as a matter of law, that the
University did not make any effort, let alone a good faith effort, to accommodate Plaintiff
during the Fall 2021 Semester and that Professor Gardner could have easily been
accommodated without causing an undue burden on the University. Therefore,
judgment will be entered in favor of Plaintiff and against the University on her claim in
Count One for discrimination based on a failure to accommodate for the Fall 2021
Semester.
On January 5, 2022, Plaintiff again requested an accommodation for a
synchronous remote teaching schedule, this time for the Spring 2022 Semester. In
response, Ms. Hollenbach held a meeting with Dr. Gardner on January 10, 2022 during
which Dr. Gardner stated that she needed a remote assignment because her
immunosuppressing medication “place her at higher risk for contracting the new variant
of Covid-19.” JSUF 79. Neither Ms. Weidman nor anyone else from HR attended this
meeting. JSUF 80. Just two days later, on January 12, 2022, Ms. Weidman denied the
request, once again stating that converting Dr. Gardner’s three in-person classes to an
online modality is a “fundamental alteration of the course delivery” JSUF 82. The form
also stated that an essential function of the job of Associate Professor is “in-person
teaching.” JSUF 84.

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Before denying Dr. Gardner’s request, Ms. Weidman did not meet with Dr.
Gardner. Nor was Dean Carroll nor Dr. Chao involved in the determination of Dr.
Gardner’s request. JSUF 82, 94, 95. On the same date she denied Plaintiff’s request,
Ms. Weidman did for the first time offer Dr. Gardner an alternative accommodation of
teaching in-person behind a plexiglass shield and wearing a face mask. This alternative
accommodation was not discussed during Dr. Gardner’s January 10, 2022 meeting with
Ms. Hollenbach. Exh. 5 at 4; Exh. 74 at 40.
On January 14, 2022, Dr. Gardner rejected the alternative proposal as “not a
reasonable accommodation.” JSUF 98. The parties have stipulated that at the time Dr.
Gardner rejected the alternate accommodation, “[c]ovid cases were on the rise, but
testing and vaccination and testing were still optional and classrooms had returned to
pre-pandemic configurations, leaving no room for social distancing. Outside the
classroom, social distancing was still not mandatory, and the modifications CDC had
recommended to make HVAC systems safer for students and staff still had not been
made.” JSUF 99. In addition, the plexiglass shield that Ms. Weidman offered to Dr.
Gardner was not based on Dr. Gardner’s specific condition but was generally offered to
all faculty who wanted to convert in-person classes to a virtual modality. Exh. 14 at 4;
Exh. 76 at 32-33; Exh. 74 at 40. In an email dated January 19, 2022, Ms. Weidman
offered Dr. Gardner the additional alternative of teaching in a larger classroom so that
she could be spaced further away from her students. Exh. P-8. In a responsive email
dated January 20, 2022, Dr. Gardner noted that she is represented by counsel and that
any correspondence “about this ADA matter” should go through her counsel or
PASSHE legal. In addition, the alternative of teaching in a larger classroom was not

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offered until January 19, 2022, exactly one week after Plaintiff’s request for a
reasonable accommodation had already been denied.
Based on the previous discussion concerning pretext, supra, and the undisputed
record in this case, the Court finds, as a matter of law, that the University did not make
a good faith effort to accommodate Plaintiff during the Spring 2022 Semester and that
Professor Gardner could have easily been accommodated without causing an undue
burden on the University. Therefore, judgment will be entered in favor of Plaintiff and
against the University on her claim for discrimination in Count One based on a failure to
accommodate for the Spring 2022 Semester.
On March 31, 2022, Dr. Gardner submitted a request for a remote
accommodation for the Fall 2022 Semester. The record reveals that, other than a
request by Ms. Hollenbach to Plaintiff on April 15, 2022 for more medical documentation
from Plaintiff concerning her accommodation request, the University did not engage in
an interactive process with Plaintiff for the Fall 2022 Semester. In fact, neither Ms.
Weidman nor anyone else on KU’s behalf ever responded to Dr. Gardner’s request for
the 2022 Fall Semester accommodation. Exh 72 at 37, 49; Exh. 74 at 79. Therefore,
judgment will be entered in favor of Plaintiff and against the University on her claim for
discrimination in Count One based on a failure to accommodate for the Fall 2022
Semester.
Finally, on December 2, 2023, Dr. Gardner submitted to Ms. Hollenbach a
request for remote work accommodation for the 2023 Spring Semester. Exh. 45. On
December 20, 2022, Ms. Weidman wrote to Dr. Gardner and the plaintiffs in the two
related cases offering an alternative accommodation in a classroom to be converted

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from a computer lab with a separate entrance, a cap of 35 students, additional
ventilation and air exchange, including two portable air scrubbers with both HEPA and
MERV filters and bi-polar ionization unit on the heat pump used for the space, reduced
foot traffic, and an ADA-compliant instructor podium, enclosed on three sides with a
plexiglass shield. The deadline for accepting or rejecting the proposed alternative was
the close of business on December 22nd, which was when the University was closing
for the holidays until January 3, 2023. Exh. 48; Exh. 74 at 97-98.
Dr. Gardner responded to Ms. Weidman on December 22, 2022 by asking 10
questions about the proposed new classroom that she believed her doctor would need
to evaluate the safety of the proposed alternative accommodation. Exh. 48 at 2. On
January 3, 2022, Ms. Weidman provided a response to each of the ten questions. On
January 5, 2023, Dr. Gardner responded with three additional questions. On January
13, 2023, Ms. Weidman responded to these follow up questions and asked Dr. Gardner
to inform her by January 16, 2023 if the proposed classroom was acceptable. In an
email dated January 19, 2023, Dr. Gardner formally rejected the proposed
accommodation based on the recommendation of her doctor. Plaintiff did not propose
any additional measures for the University to take to make the proposed large
classroom acceptable for her to teach in person. Based on the University’s actions, the
Court finds, as a matter of law, that the University engaged in a good faith effort to
locate a reasonable alternative for Dr. Gardner for the Spring 2023 Semester.
Accordingly, judgment will be entered in favor of the University on this portion of Count
Two.

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In Count Two, Plaintiff contends that the University’s policy of requiring her to
return to work with no restrictions amounts to essentially a “100% healed” policy that is
a per se violation of the RA. Our Court of Appeals has held that “`plaintiffs [cannot]
reach a determination of unlawfulness under the ADA by proving only the existence of
a 100% healed policy, without any inquiry into whether that policy has been used to
discriminate against individuals protected by the ADA from such
discrimination.’” Solomon, 532 Fed. App’x. at 158, quoting Hohider v. United Parcel
Serv., Inc., 574 F.3d 169, 195 (3d Cir.2009).
Here, the Court has already found that Plaintiff is disabled and is qualified to
perform the essential functions of her job. The Court has further found that the
University has applied what amounts to a blanket no restrictions policy to discriminate
against Plaintiff [and Dr. Oross] in denying her request for a reasonable accommodation
without considering her individual circumstances. Therefore, Plaintiff is entitled to
judgment on Count Two.
In Count Five, Plaintiff asserts a claim for “disparate impact based on prohibited
standards, criteria, or methods of administration.” Specifically, Plaintiff alleges that the
“full-duty policy that [KU] applied to Dr. Gardner constitutes a standard or qualification
criterion that has a disparate impact upon qualified employees with disabilities because
it screens them out or has a tendency to do so.” Complaint at ¶ 150.
The “disparate impact” theory of liability is based on the premise that “some
employment practices, adopted without a deliberately discriminatory motive, may in
operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth
Bank and Trust, 487 U.S. 977, 987 (1988). To make out a prima facie case of typical

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disparate impact discrimination under Title VII, a plaintiff must: (1) identify the
challenged employment practice or policy and pinpoint the defendant's use of it; (2)
demonstrate a disparate impact on a group that falls within the protective ambit of Title
VII; and (3) demonstrate a causal relationship between the identified practice and the
disparate impact. See 42 U.S.C. § 2000e–2(k)(1)(A)(i).To prove the second element,
Plaintiff would normally have to produce statistics or some equivalent measure. Newark
Branch, N.A.A.C.P. v. Town of Harrison, N.J., F. 2d 792, 798 (3d Cir. 1991).
Unlike Title VII, 42 U.S.C. § 12112(b)(6) prohibits “using qualification standards,
employment tests or other selection criteria that screen out or tend to screen out an
individual with a disability or a class of individuals with disabilities unless the standard,
test or other selective criteria, as used by the covered entity, is shown to be job-related
for the position in question and is consistent with business necessity.”
To establish a prima facie disparate impact claim under § 12112(b)(6) of the ADA
a plaintiff must (1) identify the challenged employment practice or policy, (2)
demonstrate that the practice or policy had an adverse impact on the plaintiff with a
disability, and (3) demonstrate a causal relationship between the identified practice and
the disparate impact. See Gonzales v. City of New Braunfels, Tex., 176 F.3d 839 n. 26
(5th Cir. 1999). In the ADA/RA context, unlike in the Title VII context, a plaintiff may
satisfy the second prong of her prima facie case by demonstrating an adverse impact
on herself rather than on an entire group. Id. citing 1 Barbara Lindemann & Paul
Grossman, Employment Discrimination Law 333–34 (3d ed.1996); see also Bryan v.
Wal-Mart Stores, Inc., 669 Fed.App’x. 908, 909 (9th Cir. 2016); EEOC v. Dolgencorp,
LLC, 2022 WL 2959569, at *8 (N.D. Ala. July 26, 2022); Leskovisek by next friend

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Stanley v. Illinois Department of Transp., 506 F. Supp. 3d 553, 569 (C.D. Ill. 2020);
Williams v. ABM Parking Servs. Inc., 296 F. Supp. 3d 779, 789–90 (E.D. Va.
2017) (“[A]n individual advancing an ADA disparate impact claim need not present
statistical evidence if he or she can show that a job qualification screens out the
plaintiff on the basis of his or her disability.”)
Here, the undisputed record reveals that Plaintiff identified the challenged policy
as the University’s full-time full-duty policy. Plaintiff also clearly demonstrated that the
full-time full-duty policy had an adverse impact on herself by demonstrating that she
was forced her to exhaust all of her accrued paid leave in order to remain on full-time
paid status for the Fall Semester of 2021 and thereafter. PSUF 14, 16, 30. In the
absence of court intervention, Plaintiff also would have been forced to give up her
medical benefits as of December 29, 2021 while retaining only limited return to work
rights.
Finally, the uncontroverted record established a causal connection between the
full-time, full-duty policy and the disparate impact on Plaintiff. By applying the full-time,
full-duty policy to Dr. Gardner and denying her request for a remote work
accommodation without considering her individual circumstances, the Defendants
caused Dr. Gardner to exhaust all of her accrued paid leave in order to remain on fulltime paid status for the Fall Semester of 2021 and thereafter, PSUF 14, 16, 30, and, in
the absence of court intervention, forced her to give up her medical benefits as of
December 29, 2021 while retaining only limited return to work rights.
Once Plaintiff establishes these three elements, the burden shifts to Defendants
to identify a business necessity for the challenged policy. “To assert a business

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necessity defense, the defendants must show that the allegedly discriminatory
qualification requirement is (i) job-related, (ii) consistent with business necessity, and
(iii) that performance cannot be accomplished with a reasonable
accommodation.” Williams, 296 F. Supp. 3d at 790 (citing Bates v. United Parcel
Service, Inc., 511 F.3d 974, 993 (9th Cir. 2007)). As the Court already explained in
detail, supra, Defendants failed to demonstrate any of these elements. Therefore, the
Court will enter summary judgment in favor of Plaintiff and against the University on
Count Five.
In Count Six, Plaintiff has asserted a claim under the RA against the University
for interference. This claim is distinct from Plaintiff’s claim in Count Six under the RA for
retaliation. Plaintiff has moved for summary judgment on only the interference claim,
while the University has moved for summary judgment on both claims.
Section 12203(b) of the Rehabilitation Act 7 states that “[i]t shall be unlawful to
coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment
of, or on account of his or her having exercised or enjoyed, or on account of his or her
having aided or encouraged any other individual in the exercise or enjoyment of, any
right granted or protected by this chapter.” (emphasis added). This prohibition “does not
operate as a retaliation provision subject to Title VII's burden-shifting framework.” Id.
While our Court of Appeals has not previously addressed the proper standard for
analyzing interference claims under section 12203(b), several other Courts of Appeal
have. See e.g., Menoken v. Dhillon, 975 F. 3d 1, 9 (D.C. Cir. 2020); Frakes v. Peoria
School District No. 150, 872 F.3d 545, 550 (7th Cir. 2017); Brown v. City of Tucson, 336
The standards of the ADA for interference claims govern the standards of a claim for interference under
the RA.

7

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F.3d 1181, 1191 (9th Cir. 2003). The latter two cases have adopted the test for antiinterference claims under the Fair Housing Act (“FHA”), 42 U.S.C. § 3617. Our Court of
Appeals has held that under the FHA, courts should give the word “interference” its
dictionary definition: “‘the act of meddling in or hampering an activity or process.’” See
Piotrowski v. Signature Collision Ctrs., LLC, 2021 WL 4709721, at *2 (E.D. Pa. Oct. 8,
2021) (quoting Revock v. Cowpet Bay West Condo. Ass'n., 853 F.3d 96, 112–113 (3d.
Cir. 2017)).
The University clearly meddled with Plaintiff’s request for a reasonable
accommodation of remote teaching by adopting an inflexible blanket policy that would
not permit remote teaching to any high-risk faculty member for the Fall 2021 Semester
or thereafter no matter what the individual’s physical or mental circumstances were. As
a result, Plaintiff’s requests for a remote work accommodation were essentially already
dead-on-arrival. The University further meddled with Plaintiff’s career when it claimed
that in-person teaching was an essential function of Plaintiff’s job as a full-time
Associate Professor, despite the fact that there was no history or written evidence that
in-person teaching was ever considered as an essential function of a Associate
Professor (or any other faculty member) at the University. Therefore, Plaintiff is entitled
to judgment on her interference claim.
The Court now turns to Plaintiff’s Count Six claim against the University under
the RA for retaliation. “To establish a prima facie case of retaliation..., a plaintiff must
show: (1) protected employee activity; (2) adverse action by the employer either after or
contemporaneous with the employee's protected activity; and (3) a causal connection
between the employee's protected activity and the employer's adverse action.” Krouse

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v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). See also Ozlek v. Potter,
259 F. App'x. 417, 421-22 (3d Cir. 2007) (unpublished opinion) (applying the framework
for analyzing a retaliation case under the ADA to a retaliation case under the
Rehabilitation Act (quoting Krouse, 126 F.3d at 500)). An adverse action is one that
could dissuade an objectively reasonable employee from engaging in the statutorily
protected conduct. See Mitchell v. Miller, 884 F. Supp. 2d 334, 378 (W.D. Pa.
2012) (citing Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67–71
(2006)). “To establish the requisite causal connection a plaintiff usually must prove
either (1) an unusually suggestive temporal proximity between the protected activity and
the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.” Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
According to Count Six of her Complaint, Dr. Gardner engaged in protected
activity by (1) requesting reasonable accommodations; (2) opposing KU’s alleged
“refusal to provide [the] accommodations”; and (3) “standing on her rights through
counsel” in this lawsuit. Compl., ¶ 170. She alleges that the University took adverse
actions against her by “(1) denying her reasonable accommodations to which she was
entitled; (2) refusing to provide her with a remote work accommodation on the pretext
that her courses had been reassigned, when there had been no such re-assignment;
and (3) refusing to conduct an interactive process or otherwise complying with her
legitimate requests for accommodation.” Id. at 171.
She does not allege the exact nature of the retaliation or when it allegedly
occurred. In her Response to Defendants’ Cross-Motion for Summary Judgment [ECF
68], she seems to argue that a reasonable jury could find that retaliation occurred after

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she filed this suit on March 17, 2022. Specifically, she contends that after her suit was
filed, Ms. Weidman treated Dr. Gardner’s requests for remote accommodation in a
different manner than she had before the suit was filed, including “direct[ing] DSO to
forward Dr. Gardner’s file to the Attorney General, and then direct[ing] DSO to ask Dr.
Gardner for additional medical information she had already said was unnecessary, and
that DSO did not ask for or need.” ECF 68 at p. 16. She also claims that Ms. Weidman
never responded to her accommodation request within the normal time limit of two
weeks. Id.
The Court finds, as a matter of law, that no reasonable jury could construe the
Defendant’s alleged actions of requiring Plaintiff to submit additional medical
documentation, whether justified or not, following the filing of this suit on March 17,
2022 as to be so adverse as to dissuade an objectively reasonable employee from
engaging in the statutorily protected conduct of making requests for
accommodations. According, Plaintiff has failed to establish a prima facie case of
retaliation under the ADA/RA and the Defendants’ motion for summary judgment will be
granted as to the retaliation claim in Count Six. Accordingly, Defendants’ motion for
summary judgment on Count Six is granted.
In Count Seven, Plaintiff asserts a claim against Dr. Hawkinson for interference
and discrimination under the RA. As Defendants correctly argue in their motion for
summary judgment, it is well-settled that there is no individual liability under the RA.
Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (“Because the individual
defendants do not receive federal aid, Emerson does not state a claim against them
under the Rehabilitation Act.”) (citing U.S. Dep’t of Transp. v. Paralyzed Veterans of

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Am., 477 U.S. 597, 605-06 (1986)). Accordingly, Dr. Hawkinson is entitled to judgment
on Count Seven.
In Count Eight, Plaintiff asserts a claim against Dr. Hawkinson under 42 U.S.C. §
1983 for retaliation for deprivation of rights under the RA. In Count Eleven, Plaintiff
asserts a claim against Mr. Pena under 42 U.S.C. § 1983 for Violation of Plaintiff’s
Rights under the RA. In Count Twelve, Plaintiff asserts a similar claim against Ms.
Weidman.
Courts in this Circuit have held that there is no cause of action under 42 U.S.C. §
1983 to address a violation of Section 504 of the RA where, as here, the §1983 claim is
based on the same factual predicate as the claim under Section 504 of the RA.
See A.W. v. Jersey City Public Schools, 486 F.3d at 806 (“There is nothing in Section
504 that . . . causes us to conclude that Congress intended to allow §1983 to be
available to remedy Section 504 violations such as those alleged by A.W); Fanciullo v.
U.S. Postal Service, 2013 WL 5467169, *4 (D.N.J. Sep. 30, 2013) (dismissing § 1983
claims against individual defendant alleging employment discrimination in violation of
Section 504 of the Rehabilitation Act). Therefore, Defendants Hawkinson, Pena and
Weidman are entitled to summary judgment on Counts VIII, XI, XII, respectively. 8
Finally, Plaintiff seeks in his prayer for relief emotional and punitive damages.
However, emotional and punitive damages are not recoverable under the RA.

For a more through discussion of this issue, see Oross v. Kutztown University, 2024 WL 83506 at *3, 4
(E.D. Pa. January 8, 2024).

8

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Cummings v. Premier Rehab Keller, P.L.LC., 142 S.Ct. 1562, 1572 (2022); Barnes v.
Gorman, 536 U.S. 181, 189 (2002). 9
CONCLUSION
This case represents the second time the Court has had to intervene to prevent
the Defendants from enforcing what amounts to be clearly a blanket policy that any
request by a tenured faculty member at KU to change the course modality, office hours
and meetings for the Fall 2021 Semester and thereafter from in-person to remote would
be considered a substantial alteration to the course offerings. (A third such case
recently settled). KU’s actions in formulating an unwritten policy and excluding any
consideration of a faculty member’s individual circumstances before denying that faculty
member’s request for a remote accommodation, especially during a nationwide
pandemic, clearly violated KU’s own written policy concerning requests for
accommodation (DIV-002) as well as the RA. While the Court understands Dr.
Hawkinson’s desire to reopen KU in the Fall Semester 2021 to strictly in-person
instruction, Dr. Hawkinson’s steadfast refusal to consider the individual circumstances
of tenured faculty members such as Dr. Oross and Dr. Gardner and instead enforce a
blanket no-exceptions policy against them violates federal disability law.

For a more through discussion of this issue, see Oross v. Kutztown University, 2024 WL 83506 at *4
(E.D. Pa. January 8, 2024).

9

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