MILLER v. ERIE COUNTY OFFICE OF CHILDREN AND YOUTH
Filing
51
MEMORANDUM OPINION that 41 MOTION for Summary Judgment filed by ERIE COUNTY OFFICE OF CHILDREN AND YOUTH will be denied. An appropriate Order follows. Signed by Magistrate Judge Susan Paradise Baxter on 7/10/18. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GERARD J. MILLER,
Plaintiff
v.
ERIE COUNTY OFFICE OF
CHILDREN AND YOUTH,
Defendant.
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C.A. No. 16-256 Erie
Magistrate Judge Baxter
MEMORANDUM OPINION1
United States Magistrate Judge Susan Paradise Baxter
I.
INTRODUCTION
A.
Relevant Procedural History
On October 25, 2016, Plaintiff Gerard J. Miller filed a complaint against Defendant Erie
County Office of Children and Youth (“OCY”), asserting claims of disability discrimination
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12133, et seq., and Section 504
of the Rehabilitation Act of 1973 (“Rehab Act”), 29 U.S.C. § 794(a)(2), as well as a claim of
retaliation under the ADA, 42 U.S.C. § 12203(a). Plaintiff subsequently filed an amended
complaint [ECF No. 33], adding a claim of disability discrimination under the Pennsylvania
Human Relations Act (“PHRA”), 43 P.S. § 951, et seq. As relief for his claims, Plaintiff seeks
declaratory and injunctive relief, lost wages and benefits, reinstatement of employment, and
attorneys’ fees and costs.
Defendant filed an answer to Plaintiff’s amended complaint on June 20, 2017 [ECF No.
39], and the parties have since completed discovery. Presently pending before the Court is
1
The parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. [ECF
No. 10, 12).
1
Defendant’s motion for summary judgment [ECF No. 41], in which Defendant contends that
(i) Plaintiff cannot meet his burden of proving a prima facie case of disability discrimination
because his disability prevents him from driving a vehicle, which, Defendant argues, is an
essential function of his job as a caseworker; and, (ii) Plaintiff cannot meet his burden of proving
a prima facie case of retaliation under the ADA because he cannot establish a causal connection
between the alleged protected activity and the adverse employment action at issue. Plaintiff has
filed a brief in opposition to Defendant's motion [ECF No. 47], arguing that (i) driving a vehicle
is not an essential function of the caseworker job and, thus, Defendant is required to provide an
accommodation for his disability; and (ii) a causal connection exists between his request for
accommodation and Defendant’s adverse employment action because the adverse action
occurred at Defendant’s first actual opportunity to retaliate. This matter is now ripe for
consideration.
B.
Relevant Factual History2
At all times relevant hereto, Plaintiff was employed as a caseworker with OCY since
approximately July 20, 2009. (ECF No. 43, Defendant’s Concise Statement of Material Facts, at
¶ 1). As a caseworker, Plaintiff supervised the home environment and well-being of at-risk
children in the community to make sure they were provided with proper social services. (Id. at
¶ 2). In particular, Plaintiff’s job description included the following duties and responsibilities:
1. Interaction with family members and community professionals;
2. Assessing the well-being of children through direct contact;
2
The factual history set forth herein is primarily derived from Defendant’s concise statement of material facts [ECF
No. 43], to the extent such facts are undisputed by Plaintiff in his response [ECF No. 48] and/or are fully supported
by the record evidence. In addition, to the extent the Court has deemed necessary or appropriate, the factual history
has been supplemented by Plaintiff’s statement of material facts [ECF No. 49], which has not been opposed by
Defendant.
2
3. Transporting children to medical, mental health and other
appointments if foster/kinship/parents or county social service aides
were unable to do so;
4. Intervening when environmental, parent-child or family crisis
suggested possible harm to the child;
5. Monitoring a child’s out-of-home placements by meeting with the
child and caretaker at least monthly;
6. Arranging visitation to occur on a regular basis (minimum every other
week unless otherwise ordered by Court) between parent and child to
facilitate child’s return home;
7. Arranging for sibling visitation to occur a minimum of every other
week unless otherwise order by the court.
(Id. at ¶ 5).
In or around 1993, Plaintiff was diagnosed with focal epilepsy, which causes seizures that
Plaintiff describes as an “aura” that creates confusion and a brief loss of awareness as to
circumstances and surroundings. (Id. at ¶¶ 18-19). Such seizures led to the suspension of his
Pennsylvania driver’s license for a period of six months on two separate occasions, in 1994 and
1999. (Id. at ¶¶ 17, 19).
On October 28, 2014, Plaintiff experienced a seizure while meeting with his supervisor,
Mary Jo Cline (“Cline”), and his union representative in Cline’s office. (ECF No. 49, Plaintiff’s
Statement of Material Facts, at ¶ 1). Later the same day, Plaintiff experienced another seizure in
front of a supervisor and a nurse while visiting a client. (Id.). At no time before October 28,
2014, did Plaintiff inform any of his supervisors that he had a history of seizures or seizurerelated symptoms. (ECF No. 43, at ¶ 52). As a result of these episodes, Defendant suspended
Plaintiff without pay on October 30, 2014, informing him that he would be precluded from
returning to work until he obtained written certifications from both a medical doctor and a
licensed psychologist that he was “fit for duty.” (ECF No. 49, at ¶ 2). The next day, Plaintiff saw
3
his physician, Dr. John Jageman, who provided a note advising that Plaintiff would be unable to
return to work through November 11, 2014, but failed to provide a diagnosis of Plaintiff’s
condition. (ECF No. 43, at ¶ 53). As a result, Cline wrote to Dr. Jageman requesting clarification
as to Plaintiff’s work status and limitations, to which Dr. Jageman responded that Plaintiff’s
return to work was “unknown.” (Id. at ¶¶ 54-55).
On January 8, 2015, Plaintiff met with OCY’s director, Lana Rees (“Rees”), and
submitted a letter dated December 1, 2014, from Dr. Norman So, a neurologist at the Cleveland
Clinic who had been treating Plaintiff’s seizure disorder. (Id. at ¶ 58). In the letter, Dr. So
reported that Plaintiff suffered from “focal epilepsy, with aura (warning sensations)” and was,
thus, unable to drive, but was “capable of performing all other case management duties.” (Id.;
ECF No. 50-2). At or around the time Plaintiff submitted Dr. So’s letter to Rees, Plaintiff
requested, as an accommodation for his seizure disorder, that Defendant permit him to return to
work and either allow him to use alternative means of transportation, such as a taxi or public
transportation, to visit clients, or provide transportation by a supervisor or co-worker to attend
meetings outside the office. (Id. at ¶¶ 65, 67; ECF No. 49, at ¶ 8). Defendant refused, informing
Plaintiff that he needed to be able to drive to perform the job duties of a full-time caseworker.
(ECF No. 43, at ¶ 64; ECF No. 49, at ¶ 9). Thus, Plaintiff was encouraged to seek other positions
within Erie County that did not require driving. (ECF No. 43, at ¶ 74).
On or about March 10, 2015, Rees and others met with Plaintiff about his status and
fashioned a plan for allowing Plaintiff to return to temporary light duty work performing noncasework, administrative duties in anticipation of the possibility that Plaintiff would regain his
driving status after an upcoming doctor’s appointment. (Id. at ¶ 76). Accordingly, on April 27,
2015, Plaintiff returned to work in a temporary light duty position for a period of 90 days,
4
pending the outcome of Plaintiff’s doctor visit; however, on May 22, 2015, Plaintiff’s no-driving
restriction was re-affirmed by Dr. Jageman. (Id. at ¶¶ 78, 79).3 Thus, after the 90 period for the
temporary light duty position expired, Plaintiff was placed on an unpaid medical leave of
absence, which continued until late May 2017, when Plaintiff was ultimately discharged by
Defendant. (Id. at ¶ 81).4
C.
Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
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.” Under Rule 56, the district court must enter summary
judgment against a party “who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment may be granted
when no “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (19896). “[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323 quoting Fed.R.Civ.P. 56.
The moving party has the initial burden of proving to the district court the absence of
evidence supporting the non-moving party’s claims. Celotex, 477 U.S. at 330. See also Andreoli
3
In fact, since December 1, 2014, Dr. So and Plaintiff’s other doctors have continued to impose a no-driving
restriction. (ECF No. 43, at ¶ 60).
4
According to Rees, Defendant was able to terminate Plaintiff’s employment after two years of unpaid medical leave,
pursuant to its Collective Bargaining Agreement. (ECF No. 50-1, Rees deposition transcript, at pp. 44-45 (internal
pp 92-93)).
5
v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metropolitan Life Ins. Co.,
391 F.3d 497, 502 (3d Cir. 2004). When a non-moving party would have the burden of proof at
trial, the moving party has no burden to negate the opponent’s claim. Celotex, 477 U.S. at 323.
The moving party need not produce any evidence showing the absence of a genuine issue of
material fact. Id. at 325. “Instead, … the burden on the moving party may be discharged by
‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to
support the nonmoving party’s case.” Id. After the moving party has satisfied this low burden,
the nonmoving party must provide facts showing that there is a genuine issue for trial to avoid
summary judgment. Id. at 324. “Rule 56(e) permits a proper summary judgment motion to be
opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere
pleadings themselves.” Id. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001);
Garcia v. Kimmell, 2010 WL 2089639, at * 1 (3d Cir. 2010) quoting Podobnik v. U.S. Postal
Serv., 409 F.3d 584, 594 (3d Cir. 2005) (the non-moving party “must present more than just bare
assertions, conclusory allegations or suspicions to show the existence of a genuine issue.”).
In considering these evidentiary materials, “courts are required to view the facts and draw
reasonable inferences in the light most favorable to the party opposing the summary judgment
motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and alterations
omitted). See also Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001) (when applying
this standard, the court must examine the factual record and make reasonable inferences
therefrom in the light most favorable to the party opposing summary judgment).
When considering a motion for summary judgment, the court is not permitted to weigh
the evidence or to make credibility determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both genuine and material. Anderson., 477
6
U.S. at 248, 255 (“only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.”). In determining whether the dispute is genuine,
the court’s function is not to weigh the evidence or to determine the truth of the matter, but only
to determine whether the evidence of record is such that a reasonable jury could return a verdict
for the nonmoving party. Id. at 249. The court may consider any evidence that would be
admissible at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4
F.3d 2, 8 (1st Cir. 1993).
II.
DISCUSSION
A.
Disability Discrimination Claims5
“Under the ADA, employers are prohibited from discriminating ‘against a qualified
individual with a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.’” Taylor
v. Phoenixville School Dist., 184 F.3d 296, 305 (3d Cir. 1999), citing 42 U.S.C.
§ 12112(a).
To establish a prima facie case of discrimination in violation of the ADA, a plaintiff must
demonstrate that: (i) he is “disabled” as defined by the ADA; (ii) he is qualified to perform the
essential functions of the job, with or without reasonable accommodation; and (iii) he has
suffered an adverse employment decision as a result of discrimination. Gaul v. Lucent
5
The claims of disability discrimination under the ADA, PHRA and Rehabilitation Act all assert that Miller was
qualified to perform the essential functions of his job, Defendant failed to reasonably accommodate his disability,
and that he was discharged as a result. Since the various statues overlap with regard to these issues, this opinion
will collectively address the various claims under the ADA framework. See Bragdon v. Abbott, 524 U.S. 624, 632
(l998) (ADA construed to be consistent with regulations issued to implement the Rehabilitation Act); Taylor v.
Phoenixville School Dist., 184 F.3d 296, 306 (3d Cir. 1999) (“the analysis of an ADA claim applies equally to a
PHRA claim”).
7
Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998), citing Shiring v Runyon, 90 F.3d 827, 831
(3d Cir. 1996). If the plaintiff presents evidence establishing a prima facie case, the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory reason” for the action.
Simpson v. Kay Jewelers, 142 F.3d 639, 644 (3d Cir. 1998). The defendant satisfies this burden
“by introducing evidence which, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the unfavorable employment decision.” Fuentes v. Perskie, 32 F.3d
759, 763 (3d Cir. 1994). If the employer is able to fulfill this requirement, it is then Plaintiff’s
burden to prove that the legitimate reasons offered by the employer were not its true reasons, but,
rather, were pretext for unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973); Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d Cir. 1999).
Here, Defendant contends that Plaintiff’s disability discrimination claims are fatally
deficient for three reasons: (1) Plaintiff has failed to meet his burden of proving the second
element of his prima facie case, because driving a vehicle is an essential function of the job of
caseworker which Plaintiff is disqualified from performing; (2) the accommodations proposed by
Plaintiff are unreasonable as a matter of law; and (3) Defendant has articulated a legitimate,
nondiscriminatory reason for terminating Plaintiff’s employment. Each of these arguments will
be considered in turn.
1.
Driving is an Essential Function of the Job of Caseworker
Under the ADA, “essential functions" are those considered fundamental and not marginal
to the job. Skerski v. Time Warner Cable Co., 257 F.3d 273, 279 (3d Cir.2001), quoting 29
C.F.R. § l630.2(n)(2); Grosso v. UPMC, 857 F.Supp.2d 517, 534 (WD. Pa. 2012). Thus, “a
distinction must be made between the requirements of a given position and the essential
functions of that position.” Johnson v. McGraw-Hill Companies, 451 F.Supp.2d 681, 704
8
(W.D.Pa. 2006), citing Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 329 (3d Cir.
2003) (emphasis in original).
“[W]hether a particular function is essential is a factual determination that must be made
on a case by case basis based upon all relevant evidence.” Turner v. Hershey Chocolate USA,
440 F.3d 604, 612 (3d Cir. 2006) (brackets and internal quotation marks omitted; emphasis in
original). “Evidence of whether a particular function is essential might include, but is not limited
to: (i) The employer's judgment as to which functions are essential; (ii) Written job descriptions
prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent
on the job performing the function; (iv) The consequences of not requiring the incumbent to
perform the function; (v) The terms of a collective bargaining agreement; (vi) The work
experience of past incumbents in the job; and/or (vii) The current work experience of incumbents
in similar jobs.” Id., 440 F.3d at 612; 29 C.F.R. § 1630.2(n)(3).
Here, Defendant asserts that driving a vehicle is an essential function of the job of
caseworker, because a caseworker is required to “personally observe and interact with the child
in their home environment, transport them to medical or mental health appointments as needed,
intervene when the family situation suggests possible harm to the child, take them to court or
other meetings, and regularly visit them.” (ECF No. 42, Defendant’s Brief, at p. 5). In support of
this claim, Defendant has submitted, inter alia, the Affidavit of Mary Jo Cline, Administrator of
ongoing clinical services at OCY, who declares, in pertinent part, as follows:
3.
… In my years with the agency we have not employed a caseworker who
was unable to drive for any extended period of time, as the ability to drive
is essential to performing the job.”
*
5.
*
*
When hiring caseworkers into the Office of Children and Youth, we make
it clear that they must have a reliable vehicle that is insured and inspected,
9
and that the vehicle is available at all times for the caseworker to drive in
the community….
*
*
*
7.
Driving is an activity that caseworkers perform nearly every day of the
week, depending on their schedules and demands of their cases. The
caseworkers have to be ready at any time to respond to crisis or
emergencies that develop outside of their schedules, and have the ability to
drive to wherever they are needed to respond.
(ECF No. 44-12, Affidavit of Mary Jo Cline, at ¶¶ 3, 5, 7).
Nonetheless, the Third Circuit Court has observed that the “essential function
requirement focuses on the desired result rather than the means of accomplishing it.” Skerski,
257 F.3d at 280-81. In Skerski, the plaintiff was a cable installer and technician whose job
included climbing poles, as well as non-climbing work. Id. at 275-76. When the plaintiff
developed an anxiety disorder that prevented him from climbing, he was initially provided an
accommodation, but was ultimately terminated based on the employer’s belief that he was unable
to perform an essential function of his job. In analyzing whether climbing was an essential
function of the plaintiff’s job, the Third Circuit court observed that climbing was not listed as an
essential function in the plaintiff’s job description, and that such omission supported the idea that
“one could view climbing as a useful skill or method to perform the essential functions of the job
but that it is not itself an essential function of the installer technician position.” Id. at 280. See
also Johnson v. McGraw-Hill Companies, 451 F.Supp.2d 68 (W.D.Pa. 2006) (concluding that
there was a genuine issue of material fact as to whether driving within an assigned territory,
among other things, was an essential function of performing the job of sales representative);
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013) (finding that reasonable minds could
differ as to whether the ability to hear is an essential function of a lifeguard position that requires
the ability to communicate).
10
Here, as in Skerski, maintaining a valid driver’s license and driving one’s own vehicle is
not specified in the written job description as one of the duties and responsibilities of a
caseworker. (ECF No. 44-5, Rees deposition transcript, at p. 32 (internal p. 34); ECF No. 44-4,
Job Description). In fact, during her deposition, Rees repeatedly acknowledged that driving is
merely the means to an end, or, put another way, the means to accomplish the duties of the job.6
(ECF No. 50-1, at pp. 29 and 31 (internal pp. 22 and 31-32)). In particular, Rees testified that
“being able to perform [the] job duties and responsibilities [of a caseworker] requires being –
having access to the community through driving” and, “[t]he job duties and responsibilities
cannot be performed without [a driver’s license].” (ECF No. 50-1, Rees deposition transcript, at
pp. 31-32 (internal pp. 32 and 34)). Moreover, while acknowledging that the job description
“does not specifically require” a driver’s license, Rees testified that her “concern would be that
[the caseworker] would be unable to perform the necessary functions of all of their – their job
duties and responsibilities” without one. (Id. at pp. 32-33 (internal pp. 34 and 38)).
Thus, there remains a genuine issue of material fact as to whether driving was an
essential function of the caseworker job, or merely a means of accomplishing the essential
functions of the job. See Skerski, 257 F.3d at 280. As a result, the Court is unable to conclude as
a matter of law that Plaintiff has failed to meet his burden of proving the second element of his
prima facie case of disability discrimination.
2.
Reasonable Accommodation
In the event Plaintiff is able to establish that driving is not an essential function of his
former job as caseworker,7 the question then becomes whether a reasonable accommodation for
6
In actuality, Rees twice used an erroneous turn of phrase by testifying that “driving is the ends to a means;”
however, her intent was clear.
11
his inability to drive would allow him to do the essential functions of his job without causing the
employer undue hardship. 42 U.S.C. §§ 12111(8); 12112(b)(5)(A). Here, Plaintiff proposed that
Defendant either supply him with a driver or allow him to take a taxi or public transportation to
appointments outside of the office. Defendant argues that the accommodations Plaintiff proposed
for his disability are unreasonable as a matter of law.
In particular, Defendant asserts, inter alia, that “To accommodate the Plaintiff’s request
for a driver by having a supervisor or other co-worker perform that function is not reasonable,”
because “[supervisors] or other caseworkers … do not have the opportunity to drive another
caseworker to appointments, meetings or emergencies with clients of the agency.” (ECF No. 42,
Defendant’s Brief, at p. 8). However, this argument ignores the fact that, from approximately
March 2014 to October 2014, Plaintiff was actually accompanied by a supervisor on all of his
out-of-office appointments. (ECF No. 50-1, Plaintiff deposition transcript, at p. 10 (internal p.
110); Rees deposition transcript, at p. 37, (internal pp. 54-55)). Although Defendant attempts to
explain away this fact by noting that the “situation resulted from serious performance
deficiencies that required the supervisor to monitor [Plaintiff’s] work” (ECF No. 42, Defendant’s
Brief, at p. 7), the fact remains that Plaintiff’s supervisor was able to accompany Plaintiff on all
of his appointments for a period of, at least, seven months. This fact undermines Defendant’s
argument that it would be unreasonable for a supervisor or other caseworker to drive Plaintiff to
his out-of-office appointments because they would “not have the opportunity” to do so. At the
very least, a genuine issue of material fact exists as to whether Defendant could provide such an
accommodation without incurring undue hardship. Thus, summary judgment is not available on
7
It is well established that “employers are not required to modify the essential functions of a job in order to
accommodate an employee.” Donahue v. Consolidated Rail Co., 224 F.3d 226, 232 (3d Cir. 2000).
12
the issue of reasonable accommodations.8
3.
Legitimate, Nondiscriminatory Reason
Defendant next argues that, even if Plaintiff can establish a prima facie case of disability
discrimination, Plaintiff’s employment “was separated for a legitimate, business reason –
namely, because he was unable to perform the essential function of driving after a two year leave
of absence.” (ECF No. 42, Defendant’s Brief, at p. 13). In fact, during her deposition, Rees made
clear that Plaintiff’s inability to drive is the only reason he was not returned to his job as a
caseworker. (ECF No. 50-1, Rees deposition transcript, at p. 44 (internal pp. 91-92)). The
legitimacy of this reason for Plaintiff’s termination, however, is necessarily dependent upon a
finding that driving was an essential function of Plaintiff’s job or, if not, that a reasonable
accommodation for Plaintiff’s inability to drive could not be provided without Defendant
experiencing undue hardship. As has already been discussed, neither of these issues can be
resolved as a matter of law. If it is ultimately found that driving was not an essential function of
Plaintiff’s job and Defendant failed to provide a reasonable accommodation, Defendant’s
proffered reason for Plaintiff’s termination would then become discriminatory, rather than
nondiscriminatory.9 Thus, Defendant’s motion for summary judgment as to Plaintiff’s disability
discrimination claims will be denied.
B.
ADA Retaliation
Plaintiff contends that he was terminated from his employment in retaliation for
requesting a reasonable accommodation for his inability to drive due to his seizure disorder.
8
As a result, there is no need to assess the viability of Plaintiff’s second accommodation proposal.
9
Because there is a genuine issue of material fact as to whether Plaintiff was terminated for a legitimate,
nondiscriminatory reason, Plaintiff does not need to prove pretext at this stage of the proceeding.
13
To establish a prima facie case of retaliation under the ADA (and PHRA), 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 v. American
Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997) (citations omitted). If an employee
establishes a prima facie case of retaliation under the ADA, the burden shifts to the employer to
advance a legitimate, non-retaliatory reason for its adverse employment action. Id. If the
employer satisfies its burden, the plaintiff must be able to convince the factfinder both that the
employer’s proffered explanation was false, and that retaliation was the real reason for the
adverse employment action. Id.
Defendant argues that it is entitled to summary judgment on this claim because “Plaintiff
has failed to present any evidence establishing any causal connection between the purported
protected activity (i.e., an alleged request for a reasonable accommodation) and Defendant’s
decision to terminate his employment. (ECF No. 42, Defendant’s brief, at p. 16). Specifically,
Defendant points out that Plaintiff “continued to remain employed until April 2017,” more than
two years after he claims to have requested an accommodation in January 2015 (Id.).10
However, Plaintiff correctly notes that, while it is technically true he remained
“employed” until April 2017, he was actually retained on an unpaid medical leave of absence for
the majority of this time period, and was not permitted to return to his job because of his inability
to drive. This, in itself, may be regarded as an adverse action that began well before Plaintiff was
10
Alternatively, Defendant argues that, even if Plaintiff could establish a prima facie case of retaliation, “the facts of
record clearly show that Plaintiff’s employment was terminated after he was unable to perform an essential function
of his position after a two year leave of absence” (ECF No. 42, Defendant’s brief, at p. 16); however, since there
remains a genuine issue of material fact as to whether driving was an essential function of Plaintiff’s job, the
legitimacy of Defendant’s reason for Plaintiff’s termination is still at issue.
14
actually terminated. See, e.g., Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53,
71-73 (2006) (holding that the factual determination of whether a 37-day suspension without pay
was an adverse employment action was an issue for the jury to decide); Snyder v. Norfolk
Southern, 463 F.Supp.2d 528, 534 (E.D.Pa. 2006) (court assuming that medical disqualification
is an adverse action). Thus, reasonable minds could differ as to whether placing Plaintiff on
unpaid medical leave was a materially adverse action having a sufficient causal connection to
Plaintiff’s request for a reasonable accommodation so as to satisfy the third prong of Plaintiff’s
prima facie case of retaliation. As a result, Defendant’s motion for summary judgment regarding
Plaintiff’s retaliation claim will be denied.
An appropriate Order will follow.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
Dated: July 10, 2018
15
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