Kintz v. SMNRC

Filing 37

MEMORANDUM OPINION - We conclude that the dft is entitled to summary judgment on the pltfs FMLA interference claims. However, there are genuine issues of material fact regarding the pltfs ADA discrimination and retaliation claims, as well as the pltf s FMLA retaliation claim, which preclude the entry of summary judgment on those claims. Therefore, we will grant the motion for summary judgment as to the FMLA interference claim, but deny the motion as to the ADA claims, and the FMLA retaliation claim. Signed by Magistrate Judge Martin C. Carlson on October 24, 2018. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HEATHER KINTZ,
Plaintiff,
v.
SMNRC, L.P., t/d/b/a
HOMETOWN NURSING AND
REHABILITATION CENTER,
Defendants.

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Civil No. 4:16-CV-02313

(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

INTRODUCTION
Pending before the court is the defendant’s motion for summary judgment

(Doc. 31). The plaintiff, Heather Kintz, brought the instant suit against her former
employer, alleging violations of her rights under the Family and Medical Leave
Act (“FMLA”), 29 U.S.C. § 2611, et seq., and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12111, et seq. Kintz contends that she was entitled to
FMLA leave, which the defendant denied, and that the defendant subsequently
retaliated against her by terminating her employment. Kintz further argues that the
defendant discriminated against her because of her disability, and that she was
denied a reasonable accommodation in violation of the ADA.

The defendant disputes these claims, and argues that Kintz had exhausted all
of her FMLA leave. Further, the defendant claims that Kintz’s request for an
accommodation was unreasonable and unduly burdensome, and thus the defendant
was not required to provide her with the requested accommodation. The defendant
also asserts that it terminated Kintz’s employment because she could not perform
her job duties, and because she had exhausted her leave.
After a review of the record, we find that the defendant is entitled to
summary judgment on the plaintiff’s FMLA interference claim. However, there are
genuine issues of material fact which preclude the entry of summary judgment
with respect to the plaintiff’s ADA claims discrimination and retaliation claims, as
well as her FMLA retaliation claim.
II.

BACKGROUND
Heather Kintz worked for the defendant as a residential care attendant and a

certified nurse’s aide (“CNA”) from 1999 until 2005, and was rehired in 2006 as a
CNA. (Doc. 32-1, ¶¶ 4-5). Beginning in October 2014, Kintz was forced to take
leave on several occasions for medical issues that she was having.1 In October
2014, Kintz took five days of leave for vocal cord polyps. (Id., ¶¶ 6-7). Then, on
December 22, Kintz took approximately twenty-eight days of leave to have surgery
The question of whether this initial leave constituted FMLA leave, or if the
plaintiff was on a general medical leave, is fiercely contested, as it is alleged that
the defendant had several leave policies for its employees. (Doc. 35-1, at 7 & n.3).
This dispute is not material, however, to our resolution of this motion.
2
1

after she slammed her finger in the trunk of her car. (Id., ¶¶ 9-10). Kintz stated that
she is unsure of the exact date that she returned to work, but it may have been
January 30, 2015. (Doc 35, ¶ 10). Finally, on April 24, 2015, Kintz requested, and
was granted, six weeks of FMLA leave beginning on April 28 in order to have a
hysterectomy. (Doc. 32-1, ¶¶ 12-13). Notably, this period of leave is the only
period in which Kintz filled out FMLA-specific paperwork provided by the
defendant. (Doc. 32-4, at 10-11). After receiving a note from Kintz’s doctor about
her follow up appointment, the defendant extended the initial six weeks of leave
through June 27, 2015, although whether this extension qualified as FMLA leave,
and whether the doctor actually requested the extension, is in dispute. (Doc. 32-1, ¶
15; Doc 35, ¶ 14).2 It is undisputed that Kintz returned to work on June 21. (Doc.
32-1, ¶ 18).
Within five days of her return to work, on June 26, 2015, Kintz was
experiencing pain from her surgery while she was at work, and she left work to see

The defendant received a note from the plaintiff’s doctor on May 29, 2015,
advising the defendant that Kintz’s return-to-work status was going to be evaluated
at her next appointment, which was June 19, 2015. (Doc. 32-5, at 2). On June 1,
Jennifer Zimmerman sent the plaintiff a letter, advising her that her FMLA leave
had been extended until June 27, and that her FMLA leave would be exhausted at
that time. (Doc. 32-5, at 3). It appears that the defendant automatically understood
the doctor’s note to be a request for more leave, and granted the plaintiff additional
leave. While there is nothing in the record before us that shows that Kintz actually
requested an extension of her FMLA leave, the plaintiff’s doctor did send a note to
the defendant that Kintz could return to work on June 17. (Doc. 32-5, at 5). Thus, it
would appear that Kintz took extra leave from June 9 to June 17.
3
2

her doctor. (Doc. 32-1, ¶ 22). Her doctor gave her a note, which stated that Kintz
was to be put on “light duty until further notice.” (Doc. 32-1, ¶ 23). Kintz gave the
note to her supervisor’s subordinate on June 29. (Doc. 32-1, ¶ 24). Several days
later, Kintz received a letter from Jennifer Zimmerman, the Nursing Home
Administrator, dated July 1, which advised Kintz that her FMLA leave had been
exhausted on June 30, and that her employment had been terminated. (Doc. 32-5,
at 9).
This correspondence from Zimmerman terminating Kintz had a certain
enigmatic quality to it. The letter seems to assume, rather than state, that Kintz is
being fired, and provides her with information concerning re-hire procedures and
termination of health benefits. (Id.) Further, the only explanation given by
Zimmerman for releasing Kintz is explicitly linked to her use of her FMLA leave.
Thus, the letter implies that Kintz’s employment was terminated because: “Your
twelve weeks of Medical Leave of Absence will be exhausted on June 3l, 2015. In
accordance with the FMLA guidelines you are only eligible for 12 weeks of leave,
which you have taken.” (Id.) The ambiguities in this letter are heightened by the
fact that what transpired between Kintz and Zimmerman between June 29 and July
1 is the subject to two very different and starkly contrasting factual narratives. In
her deposition, Jennifer Zimmerman stated that, after she was given the “light
duty” note from Kintz’s doctor, she advised Kintz to get clarification from her
4

doctor regarding the restrictions she had, and further, that she gave Kintz FMLA
paperwork to fill out to extend her time-off. (Doc. 35-5, at 15-16). Zimmerman
claimed that, after advising Kintz of these steps, she attempted to get ahold of
Kintz for several days thereafter, and that Kintz never responded or made any
effort to get in touch with her. (Doc. 35-5, at 17). This is in stark contrast to
Kintz’s testimony, in which she states that she was never given FMLA paperwork,
but instead was informed she could not be accommodated with light duty and to
file for unemployment. (Doc. 35-4, at 32.)
Kintz filed a written complaint with the Equal Employment Opportunity
Commission (“EEOC”), which was cross-filed with the Pennsylvania Human
Relations Commission (“PHRC”), on February 5, 2016. (Doc. 35-4, at 165). She
alleged that the defendant wrongfully terminated her employment after refusing
her request for a reasonable accommodation. (Id., at 166). She further alleged that
the defendant’s reason for her termination—exhaustion of her FMLA leave—was
incorrect, as she had not yet exhausted her FMLA leave, and the only thing
preventing her from working was the defendant. (Id.)
Within ninety days after receiving her right-to-sue letter from the EEOC,
Kintz filed this action with the district court on November 18, 2016. (Doc. 1). On
May 14, 2018, fact discovery concluded. (Doc. 30). The defendant filed the instant

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motion for summary judgment on May 25, 2018. (Doc. 31). The motion has been
fully briefed (Docs. 32, 35-1) and is ripe for resolution.
III.

STANDARD OF REVIEW

Summary judgment is appropriate “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). In evaluating a motion for summary
judgment, a court must determine “whether the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits show that there is no genuine
issue of material fact and whether the moving party is therefore entitled to
judgment as a matter of law.” Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271
(3d Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A
disputed issue is only “genuine” if there is a sufficient evidentiary basis upon
which a reasonable factfinder could find for the non-moving party. Kaucher v.
Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is “material” only if it
could affect the outcome of the suit under the governing law. Doe v. Luzerne
Cnty., 660 F.3d 169, 175 (3d Cir. 2011) (citing Gray v. York Papers, Inc., 957 F.2d
1070, 1078 (3d Cir. 1992)). The Court is not tasked with resolving disputed issues
of fact, but only with determining whether there exist any factual issues that must
be tried. Anderson, 477 U.S. at 247-49.
6

In considering a motion for summary judgment, a court must view the
evidence in the light most favorable to the non-moving party. Macfarlan, 675 F.3d
at 271; Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir. 2009).
Where there exist factual issues that cannot be resolved without a credibility
determination, the court must credit the non-moving party’s evidence over that
presented by the moving party. Liberty Lobby, 477 U.S. at 255. However, if there
is no factual issue presented, and if only one reasonable conclusion could arise
from the record with respect to the potential outcome under the governing law, the
court must award summary judgment in favor of the moving party. Id. at 250.
The court must review the entire record, but in doing so must take care to
“disregard all evidence favorable to the moving party that the jury is not required
to believe.”

Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 150-51

(2000). The task for the court is to examine “whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so onesided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at
251-52. In considering this evidence, we note that “a single, non-conclusory
affidavit or witness’s testimony, when based on personal knowledge and directed
at a material issue, is sufficient to defeat summary judgment.”

Paladino v.

Newsome, 885 F.3d 203, 209 n. 34 (3d Cir. 2018) (quoting Lupyan v. Corinthian
Colleges, Inc., 761 F.3d 314, 320 (3d Cir. 2014)). This principle of the rules
7

governing summary judgment holds true “even where . . . the information is selfserving.” Id. (citing Lupyan, 761 F.3d at 321 n.2).
IV.

DISCUSSION

In this case, the plaintiff brings two categories of claims against her
employer. First, Kintz claims that SMNRC violated the FMLA by interfering with
her rights to take leave to which she was entitled, and by retaliating against her for
asserting her rights to take this leave. Second, Kintz alleges that SMNRC violated
the ADA by discriminating against her due to her disability or her perceived
disability, and by retaliating against her for requesting an accommodation. For the
reasons set forth below, we conclude that SMNRC is entitled to summary
judgment on the plaintiff’s FMLA interference claim. However, there are genuine
issues of material fact that preclude the entry of summary judgment with respect to
the plaintiff’s FMLA retaliation claim and ADA claims.
A.

FMLA Claims

The plaintiff alleges that SMNRC violated the FMLA when it interfered
with her right to take leave that she was entitled to, and when it subsequently
retaliated against her by terminating her employment. SMNRC counters that
Kintz’s FMLA leave was exhausted, and thus there could be no interference
because Kintz was not entitled to take any more leave. Further, SMNRC argues

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that it had a legitimate, nondiscriminatory reason for terminating the plaintiff
because she had exhausted her FMLA leave and could not be accommodated.
In order to state a claim for interference under the FMLA, a plaintiff must
allege:
(1) he or she was an eligible employee under the FMLA; (2) the
defendant was an employer subject to the FMLA's requirements; (3)
the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice
to the defendant of his or her intention to take FMLA leave; and (5)
the plaintiff was denied benefits to which he or she was entitled under
the FMLA.
Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014) (quoting Johnson v. Cmty.
Coll. of Allegheny Cnty., 566 F.Supp.2d 405, 446 (W.D. Pa. 2008)). A plaintiff
must thus show not only that she was entitled to FMLA leave, but that the
employer denied her those benefits. Sommer v. The Vanguard Grp., 461 F.3d 397,
399 (3d Cir. 2006). The employee does not need to show that she was treated
differently from other employees, and the employer cannot justify the denial of
FMLA benefits by establishing a legitimate business purpose for its decision. Id. at
399. Moreover, “[b]ecause the FMLA [interference claim] is not about
discrimination, a McDonnell Douglas burden-shifting analysis is not required.” Id.
The Third Circuit Court of Appeals has emphasized that interference claims
are not coterminous with claims of FMLA retaliation, and indeed has explained
that “[a]n interference claim is not about discrimination[;] it is only about whether
the employer provided the employee with the entitlements guaranteed by the
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FMLA.” Ross, 755 F.3d at 192 (quoting Callison v. City of Phila., 430 F.3d 117,
120 (3d Cir. 2005)) (alteration in Ross). In plain terms, “for an interference claim
to be viable, the plaintiff must show that FMLA benefits were actually withheld.”
Ross, 755 F.3d at 192.
In order to state a claim for retaliation under the FMLA, an employee must
allege that after taking FMLA-qualifying leave, she was subjected to adverse
employment action, including termination other retaliatory action, because she
took time away from work for FMLA-qualifying reasons. See, e.g., Freeman v.
Phila. Hous. Auth., No. 12-1422, 2013 WL 3761274, at *22, 2013 U.S. Dist.
LEXIS 100774, at *31 (E.D. Pa. July 18, 2018) (describing retaliation claims as
those “where an employee requested or took FMLA leave, remained at or returned
to work, and then was subject to some type of adverse employment action such as
termination or demotion.”).
To prevail on her FMLA retaliation claim, the plaintiff has the burden of
establishing a prima facie case by showing that she invoked a right to FMLAqualifying leave, subsequently suffered an adverse employment decision, and
demonstrate that the adverse action was causally related to her invocation of her
FMLA rights. Ross, 755 F.3d at 193 (citing Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)). If the plaintiff establishes a prima
facie case, the burden of production shifts to the employer to show a legitimate,
10

non-retaliatory

reason

for

the

allegedly

adverse

employment

decision.

Lichtenstein, 691 F.3d at 302. If the employer satisfies this “minimal burden,” id.,
the plaintiff has the burden of establishing evidence sufficient to cast doubt on the
employer's legitimate, non-retaliatory reason. Id.
1.

Kintz’s FMLA Interference Claim Fails as a Matter of Law
But Disputed Issues of Fact Preclude Summary Judgement
on Her FMLA Retaliation Claim

In the instant case, there is no dispute that Kintz was an “eligible employee,”
and that SMNRC is an employer subject to the FMLA. However, even assuming
that Kintz was entitled to FMLA leave, which is fiercely disputed, the record is
devoid of any evidence showing that Kintz was ever denied leave. Nor is there any
showing that Kintz ever requested FMLA leave, or any leave at all, for the time
period after June 26, 2015. The record shows that Kintz returned to work on June
21, after she had taken FMLA leave for her hysterectomy. On June 26, Kintz was
experiencing pain and went to her doctor, who requested that she be put on light
duty at work. There is no mention in the plaintiff’s complaint or in her brief that
she ever advised SMNRC of her intent to take more time off, or that she needed
more leave. She simply requested an accommodation of light duty. This is fatal to
Kintz’s interference claim, as Ross requires a plaintiff to give notice to her
employer of her intent or need to take the FMLA leave that he or she is entitled to.
The only notice given to SMNRC was the request for light duty, not for FMLA
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leave or any other time-off. Since this light duty request falls short of a notice or
request for FMLA leave, we find that Kintz’s FMLA interference claim fails as a
matter of law.
In contrast, while it presents a close question, we find that Kintz’s FMLA
retaliation survives summary judgment. In our view, unlike an interference claim, a
retaliation claim is not dependent upon the denial or interference with the
plaintiff’s on-going efforts to utilize FMLA leave. Instead, the gist of a retaliation
claim is that the defendant has taken some adverse action against an employee
because of her past use of FMLA leave. Thus, “[t]o prevail on a retaliation claim
under the FMLA, the plaintiff must prove that (1) she invoked her right to FMLAqualifying leave, (2) she suffered an adverse employment decision, and (3) the
adverse action was causally related to her invocation of rights.” Lichtenstein v.
Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301–02 (3d Cir. 2012). Here, it is
uncontested that in April 2015, Kintz invoked her right to FMLA leave and used
that leave through June 21, 2015. Likewise, there is no dispute that Kintz suffered
an adverse action shortly after she used this leave, when she was fired on July 1,
2015. Thus, the first two elements of an FMLA retaliation claim are fully met here.
All that remains is the question of causation, a question which often turns on issues
of human motivation. Because questions of motivation, and causation, are often
incapable of direct proof, the courts have spoken to the nature and quality of the
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circumstantial evidence needed to create a genuine issue of fact regarding
causation. On this score, it is well-settled that:
To demonstrate a prima facie case of causation, [a plaintiff] must
point to evidence sufficient to create an inference that a causative link
exists between her FMLA leave and her termination. See Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 279–81 (3d Cir.2000). When
the “temporal proximity” between the protected activity and adverse
action is “unduly suggestive,” this “is sufficient standing alone to
create an inference of causality and defeat summary judgment.”
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d
Cir.2007). “Where the temporal proximity is not ‘unusually
suggestive,’ we ask whether ‘the proffered evidence, looked at as a
whole, may suffice to raise the inference.’ ” Id. (quoting Farrell, 206
F.3d at 280).
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012).
Put another way:
To demonstrate a causal connection, a plaintiff generally must show
“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. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007).
Employers “cannot use the taking of FMLA leave as a negative factor
in employment actions.” 29 C.F.R. § 825.220(c).
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir. 2014).
In this case, we believe that the evidence would permit, but not compel, an
inference of causation. Therefore, this evidence, viewed in a light most favorable
to Kintz, describes disputed issues of fact which may not be resolved as a matter of
law but must be tested at trial as a matter of fact. In particular, we conclude that the
temporal proximity of these events, coupled with SMNRC’s decision in its July 1,
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2015 termination letter to link Kintz’s discharge to her past FMLA leave usage,
would permit an inference of causation. Kintz argues that SMNRC retaliated
against her for taking the FMLA leave that was approved from April 28, 2015,
until June 21, 2015. Kintz was then fired 9 days later, following a brief interactive
process which is the subject of mutually contradictory descriptions by Kintz and
her supervisor Zimmerman. This is a suggestively close chronology of events in
our view, but the circumstantial evidence which permits an inference of causation
is not limited to this temporal proximity alone. When SMNRC fired Kintz, the
termination letter issued by the defendant can be read to do what the law forbids, in
that it can be seen as describing “ ‘the taking of FMLA leave as a negative factor in
employment actions.’ 29 C.F.R. § 825.220(c).” Budhun v. Reading Hosp. & Med.
Ctr., 765 F.3d 245, 258 (3d Cir. 2014). In fact, the only explanation given by
Zimmerman for releasing Kintz in this July 1, 2015 letter was her use of her
FMLA leave. Thus, the letter implies that Kintz’s employment was terminated
because: “Your twelve weeks of Medical Leave of Absence will be exhausted on
June 30, 2015. In accordance with the FMLA guidelines you are only eligible for
12 weeks of leave, which you have taken.” (Doc. 32-5.)
Taken together, this circumstantial evidence satisfied Kintz’s prima facie
burden of showing that there are disputed factual issues regarding the causation
element of this FMLA retaliation claim. While SMNRC can overcome this prima
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facie case by showing that the undisputed evidence reveals a non-discriminatory
reason for its actions, in a case such as this where a plaintiff is bringing parallel
ADA and FMLA retaliation claims, courts often rely upon the same analysis to
assess the question of whether the defendant has shown a non-discriminatory basis
for an adverse action under either statute. See Reyer v. Saint Francis Country
House, 243 F. Supp. 3d 573, 594 n. 16 (E.D. Pa. 2017). In this case, as discussed
below, the evidence is in conflict regarding whether there was a nondiscriminatory basis of the decision to fire Kintz. See pages 20-24, infra. Given
this factual conflict, which turns on the credibility of the competing accounts
provided by Kintz and Zimmerman, summary judgment simply is not appropriate
on this claim.
B. ADA Claims
Kintz also brings two claims against the defendant under the ADA. First,
Kintz claims that SMNRC discriminated against her on the basis of a disability or a
perceived disability. Additionally, Kintz brings a retaliation claim, alleging that she
was terminated after she requested a reasonable accommodation of light duty. In
support of its motion, SMNRC does not challenge the plaintiff’s claimed disability,
but rather posits that it had a legitimate, nondiscriminatory reason for terminating
Kintz’s employment—her FMLA leave was exhausted. (Doc. 32, at 11). SMNRC
claims that the reason was not a pretext for discrimination, as it had given
15

accommodations to other employees who were injured. (Id.) Further, SMNRC
argues that Kintz’s requested accommodation of light duty was unreasonable and
unduly burdensome. (Id., at 12-13). We conclude that there genuine issues of
material fact that preclude us from granting summary judgment on these claims.
Therefore, we will deny the motion for summary judgment with respect to the
plaintiff’s ADA claims.
1. The Legal Standard for ADA Discrimination and Retaliation
Claims
The purpose of the ADA is to “prevent employment discrimination of
qualified individuals on account of their disability.” Koller v. Riley Riper Hollin
& Colagreco, 850 F. Supp. 2d 502, 512 (E.D. Pa. 2012) (citing 42 U.S.C. §
12112(a)). The Act requires employers to make “reasonable accommodations to
the known physical and mental limitations of an otherwise qualified individual
with a disability, unless the employer demonstrates that such accommodations
would impose an undue hardship in the operation of their business.” Id. (quoting
Fleck v. WILMAC, Corp., No. 10-5562, 2011 U.S. Dist. LEXIS 54039, at *10
(E.D. Pa. May 19, 2011)).
In order to make out a prima facie claim for workplace discrimination under
the ADA, a plaintiff must demonstrate that she is (1) disabled within the meaning
of the ADA, (2) is otherwise qualified to perform the essential functions of the job,
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with or without reasonable accommodations by the employer, and (3) has suffered
an adverse employment decision as a result of the discrimination. Sulima v.
Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010); see also Stadtmiller v.
UPMC Health Plan, Inc., 491 F. App’x 334, 336 (3d Cir. 2012); Gaul v. Lucent
Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998). A disability can take the
form of a physical or mental impairment that substantially limits one or more
major life activities, a record of such an impairment, or being regarded as having
such an impairment. 42 U.S.C. § 12102(1).
If the plaintiff makes a prima facie showing under this three-part standard,
the burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its adverse employment action. See Shaner v. Synthes, 204 F.3d 494,
500 (3d Cir. 2000) (noting that the burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to ADA
disparate treatment and retaliation claims).

If a legitimate, nondiscriminatory

reason is given, then the plaintiff must present evidence to demonstrate that the
defendant’s reasons were pretext for its unlawful action. Id. The plaintiff may
meet this burden by identifying evidence that allows a factfinder either to
disbelieve the employer’s articulated legitimate justification, or to conclude that an
invidious discriminatory reason was more likely than not a “but for” cause of the

17

employment action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). This “but
for” standard of causation sets an exacting benchmark for these claim.
The ADA also prohibits employers from retaliating against employees who
oppose an act or practice made unlawful by the ADA or because the employee has
made a charge under the ADA. 42 U.S.C. § 12203(a); Shellenberger v. Summit
Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003) (“it is unlawful for an employer to
retaliate against an employee based upon the employee’s opposition to anything
that is unlawful under the ADA.”).

Although requesting a reasonable

accommodation does not appear to “fit[ ] within the literal language of the statute,”
Soileua v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997), the Court of
Appeals for the Third Circuit has held that making a good-faith request for an
accommodation is protected activity for purposes of the ADA’s anti-retaliation
provision. Shellenberger, 318 F.3d at 191.
In order to make out a prima facie case of illegal retaliation under the ADA,
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 relationship between the protected activity and the adverse action.
Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 759 (3d Cir.
2004); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002). The
same McDonnell Douglas burden-shifting framework described above with respect
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to ADA discrimination claims also applies to ADA retaliation claims. In all cases
involving retaliation, a plaintiff must prove that retaliatory animus played a role in
the employer’s decision-making process and that it had a determinative effect on
the outcome of the process. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d
Cir. 1997). That burden always remains with the plaintiff. Id.
The Third Circuit has summarized the showing that a defendant must make
in order to obtain summary judgment on a claim of ADA retaliation:
[T]he employer must show that the trier of fact could not
conclude, as a matter of law, (1) that retaliatory animus
played a role in the decisionmaking process and (2) that
it had a determinative effect on the outcome of that
process. This may be accomplished by establishing the
plaintiff’s inability to raise a genuine issue of material
fact as to either: (1) one or more elements of the
plaintiff’s prima facie case or, (2) if the employer offers a
legitimate non-retaliatory reason for the adverse
employment action, whether the employer’s proffered
explanation was a pretext for retaliation.
2. The Defendant is not Entitled to Summary Judgment on
Kintz’s ADA Claims
Turning to the facts of this case, we find that there are genuine issues of
material fact that preclude the entry of summary judgment on Kintz’s ADA claims.
Kintz alleges that she was terminated from Hometown Nursing and
Rehabilitation Center because of a disability, or a perceived disability. We note at
the outset that Kintz has not pleaded a precise disability from which she suffered.

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However, Kintz also claims that she was discriminated against because her
employer perceived her as having a disability. (Doc. 1, ¶ 35).
This court has stated that a plaintiff’s “regarded as disabled” claim focuses
on the “reactions and perceptions of the persons interacting or working with him,”
rather than the plaintiff’s own abilities. Yanoski v. Silgan White Cap Americas,
LLC, 179 F.Supp.3d 413, 428 (M.D. Pa. 2016) (quoting Kelly v. Drexel Univ., 94
F.3d 102, 108-09 (3d Cir. 1996)). More recently, the United States District Court
for the Western District of Pennsylvania succinctly stated the standard for
analyzing a “regarded as disabled” claim:
“Because the ADA ‘requires the court to determine whether the
plaintiff was “subjected to an action prohibited” by the ADA “because
of an actual or perceived impairment,” most courts have concluded
that causation is an integral part of the threshold finding that a
plaintiff is regarded as having a disability.” Tirk v. Dubrook, Inc.,
Civ. No. 14-889, 2016 WL 427738, at *4 (W.D. Pa. Feb. 4, 2016)
(citing Baughman v. Cheung Enters., LLC, No. 13-1511, 2014 WL
4437545, at *12 (M.D. Pa. Sep. 9, 2014)). “The weight of temporal
evidence is context-specific and ‘must be considered with a careful
eye to the specific facts and circumstances encountered.” Proudfoot v.
Arnold Logistics, LLC., 59 F.Supp.3d 697, 708 (M.D. Pa. 2014)
(quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir.
2000)). Temporal proximity is measured between the time the
employer learned of the alleged “disability” and when the adverse
employment action occurred. Warshaw v. Concentra Health Services,
719 F.Supp.2d 484, 496 (E.D. Pa. 2014). “Courts that have relied on a
temporal link to overcome summary judgment have typically required
an extremely short time period or the existence of additional
circumstantial facts to support causation.” Tirk, 2016 WL 427738, at
*4 (citations omitted).

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Schirnhofer v. Premier Comp. Solutions, LLC, 303 F.Supp.3d 353 (W.D. Pa.
2018).
The court’s analysis in Schirnhofer is instructive. Here, Kintz effectively
requested an accommodation consisting of light duty when she gave her doctor’s
note to her supervisor on June 29; the note stated that Kintz was to be placed on
light duty until further notice. (Doc. 32-5, at 8). Kintz received a letter dated July
1, just two days later, which stated her employment was being terminated. (Doc.
32-5, at 9). A reasonable factfinder could conclude that SMNRC regarded Kintz as
being disabled because of the light duty her doctor requested and her prior medical
history. Furthermore, there is no question that the temporal proximity between the
requested accommodation and the plaintiff’s termination—two days—at the very
least raises a genuine dispute of material fact as to the defendant’s motive for
Kintz’s termination. On this score, a reasonable factfinder could conclude that the
defendant in fact regarded Kintz as disabled.
Assuming the plaintiff can show she was regarded as being disabled, she
adequately states a prima facie case of discrimination; she claims that she was
qualified to perform the essential functions of her job with or without an
accommodation, as she could have performed light duty, and that she was subject
to adverse action by way of her termination. The defendant claims that its reason
for Kintz’s termination—that she exhausted her FMLA leave—is a legitimate
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nondiscriminatory reason, and that Kintz adduces no evidence that this reason is a
pretext for discrimination. However, in addition to the temporal proximity of the
accommodation and Kintz’s termination, the record is filled with factual disputes
regarding the circumstances surrounding Kintz’s termination, from which a
factfinder could reasonably conclude that SMNRC’s reason was a pretext for
discrimination.
In her deposition, Jennifer Zimmerman stated that, after she was given the
“light duty” note from Kintz’s doctor, she advised Kintz to get clarification from
her doctor regarding the restrictions she had, and further, that she gave Kintz
FMLA paperwork to fill out to extend her time-off. (Doc. 35-5, at 15-16).
Zimmerman claimed that, after advising Kintz of these steps, she attempted to get
ahold of Kintz for several days thereafter, and that Kintz never responded or made
any effort to get in touch with her. (Doc. 35-5, at 17). This is in stark contrast to
Kintz’s testimony, in which she states that she was never given the aforementioned
FMLA paperwork, but instead was informed she could not be accommodated with
light duty and to file for unemployment. (Doc. 35-4, at 32). Additionally, it is
worth noting that the letter of termination was dated just two days after Kintz gave
notice of her need for light duty, even though Zimmerman testified that she gave
Kintz time to speak with her doctor.

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Given that the circumstances surrounding Kintz’s termination are almost
entirely in dispute, we conclude that an entry of summary judgment would be
inappropriate, as these disputes raise genuine issues of material fact concerning
Kintz’s ADA discrimination claim. These disputes rest primarily on the credibility
of both Kintz and Zimmerman, which is not a determination for this court to make.
Nor would it be appropriate to enter summary judgment on Kintz’s
retaliation claim under the ADA. At the outset, we note that Kintz has made a
prima facie showing of retaliation; she has stated that she engaged in protected
activity, i.e., requesting an accommodation, that she was subject to adverse action
when she was terminated two days later, and that her termination was caused by
her request for an accommodation. Again, the defendant posits that it had a
legitimate, nondiscriminatory reason for terminating Kintz because her FMLA
leave was exhausted. SMNRC additionally claims that Kintz’s requested
accommodation was unreasonable and unduly burdensome.
As we have already discussed, Kintz has presented evidence from which a
factfinder can conclude that SMNRC’s proffered reason for her termination—
FMLA exhaustion—was a pretext for discrimination. Additionally, there are a
number of factual disputes surrounding Kintz’s request for an accommodation that
preclude the entry of summary judgment. Zimmerman was asked in her deposition

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if there were light duty assignments offered to employees, specifically CNAs, who
were injured on the job, to which she replied:
Well, we would look to see if -- what we can do for them. We would - we can modify their job. Some of the employees would assist with
helping the residents with nail care. They would assist with passing
water. They would assist with answering call lights. They would assist
with making beds. They would mainly assist with those kinds of
resident care issues.
(Doc. 35-5, at 8). Plaintiff’s counsel then asked Zimmerman if there were other
jobs that CNAs were able to perform that did not involve heavy lifting, and
Zimmerman responded that there were. (Id.) Additionally, Zimmerman stated that
these modifications were available to employees who were injured both on the job
and off the job. (Id., at 9). Despite this testimony, Kintz testified that she was never
offered light duty, and was told instead that she could not be accommodated. (Doc.
35-4, at 32).
Zimmerman’s testimony completely contradicts Kintz’s testimony in this
regard, which in turn creates a dispute concerning the interactive process that an
employer is obliged to engage in when faced with a request for an accommodation.
The Court of Appeals for the Third Circuit has elaborated on the importance of
both the employee and the employer engaging in this interactive process in order to
come to an effective resolution concerning an employee’s need for an
accommodation:

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The ADA’s regulations make clear that the purpose of the interactive
process is to determine the appropriate accommodations: “This
process should identify the precise limitations resulting from the
disability and the potential reasonable accommodations that could
overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). Therefore, it
would make little sense to insist that the employee must have arrived
at the end product of the interactive process before the employer has a
duty to participate in that process. The EEOC’s interpretive guidelines
squarely place some of the burden on the employer by stating that “the
employer must make a reasonable effort to determine the appropriate
accommodation.” 29 C.F.R. Pt. 1630, App. § 1630.9 at 359.
As we explained in Mengine [v. Runyon, 114 F.3d 415 (3d Cir.
1997)], the process must be interactive because each party holds
information the other does not have or cannot easily obtain. We noted
that “employers will not always know what kind of work the worker
with the disability can do, and conversely, the worker may not be
aware of the range of available employment opportunities, especially
in a large company. Thus, the interactive process may often lead to the
identification of a suitable position.” Mengine, 114 F.3d at 420.
Taylor v. Phoenixville School District, 184 F.3d 296, 316 (3d Cir. 1999).
The differences between Zimmerman’s and Kintz’s testimony are
significant. According to Zimmerman, the defendant attempted to engage in the
process by getting more information from Kintz’s doctor and by repeatedly
attempting to contact her. However, according to Kintz, there was no process
whatsoever, Zimmerman never tried to reach out to her, and her employment was
terminated before she was given a chance to engage in any such process.
Not only does this conflicting testimony create a genuine issue of material
fact as to the interactive process, or lack thereof, but it also severely undermines
the defendant’s argument that Kintz’s request for light duty was unreasonable and
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unduly burdensome. The defendant argues that Kintz was unable to perform fifty
percent of her job duties, and that accommodating her would require hiring a
second person to work on her shift to cover those duties. (Doc. 32, at 13).
Zimmerman’s testimony, however, demonstrates that other employees, specifically
CNAs such as Kintz, were given light duty assignments similar to what Kintz
requested when they were injured. She testified that CNAs could help with nail
care, making beds, and answering call buttons, among other light duty jobs. (Doc.
35-5, at 8). Given this testimony, the defendant cannot defeat Kintz’s retaliation
claim by claiming her accommodation request was unreasonable as a matter of
law. To the contrary, Zimmerman’s testimony demonstrates that Kintz’s request
for light work was in line with the light duty given to other injured employees.
Therefore, the reasonableness of this accommodation request presents a question of
fact for trial and we conclude that the defendant is not entitled to summary
judgment on Kintz’s ADA retaliation claim.
V.

CONCLUSION
For the foregoing reasons, we conclude that the defendant is entitled to

summary judgment on the plaintiff’s FMLA interference claims. However, there
are genuine issues of material fact regarding the plaintiff’s ADA discrimination
and retaliation claims, as well as the plaintiff’s FMLA retaliation claim, which
preclude the entry of summary judgment on those claims. Therefore, we will grant
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the motion for summary judgment as to the FMLA interference claim, but deny the
motion as to the ADA claims, and the FMLA retaliation claim.
An appropriate order follows.

DATED: October 24, 2018

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