Opinion
Civil Action 1:20-CV-02206
08-05-2022
RAQUEL NICKEY, Plaintiff, v. UPMC PINNACLE d/b/a UPMC PINNACLE CARLISLE, Defendant.
WILSON, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, Chief United States Magistrate Judge.
Plaintiff Raquel Nickey (“Nickey”) brings the above-captioned civil rights action pursuant to the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. 12101 and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. 951 against Defendant UPMC Pinnacle d/b/a UPMC Pinnacle Carlisle (“UPMC”). (Doc. 1, at 1). In her complaint, Nickey claims that UPMC terminated her employment, failed to accommodate her, and retaliated against her due to her disability related to an annular tear and bulging disc in her spine. (Doc. 1, at 7-10).
The Court takes judicial notice of the opinion issued in the Commonwealth Court of Pennsylvania in Nickey v. Unemployment Compensation Board of Review, No. 681 C.D. 2019, 2020 WL 57934 (Pa. Comma. Jan. 6, 2019). However, the Court merely notes the existence of the opinion, not the truth of the facts recited therein. (Doc. 28; Doc. 34; Doc. 35); see Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 165 n. 15 (3d Cir. 2004) (internal quotations omitted) (“we do not take judicial notice for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.”); see also Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410 426 (3d Cir. 1999); U.S. ex rel. Spay v. CV Caremark Corp., 913 F.Supp.2d 125, 140-41 (E.D. Pa. 2012).
Pending before the Court is a motion for summary judgment filed by UPMC. (Doc. 21). UPMC asserts that it accommodated Nickey's requests, that Nickey's termination was unrelated to her disability, and that her retaliation claim must fail. (Doc. 22, at 10, 12, 13). Nickey contends that UPMC failed to provide a reasonable accommodation for her disabilities related to her work-related injury as it did not put forth a good faith effort in accommodating her part-time work schedule and that her desired accommodations were reasonable. (Doc. 25, at 17-21). Further, Nickey argues that a genuine issue of material fact exists as to whether UPMC terminated her due to her disabilities related to her work-related injury, as she was a qualified individual because her reduced hours did not impact her department. (Doc. 25, at 21). Finally, Nickey states that a genuine issue of material facts exists as to whether she suffered an adverse employment action because of her request for a reasonable accommodation and that the timing of her termination and request to return to work suggests that her termination was “unduly suggestive of retaliation.” (Doc. 25, at 24-26). For the reasons stated herein, it is recommended that UPMC's motion for summary judgment be GRANTED in part and DENIED in part. (Doc. 21).
I. Background and Procedural History
This factual background is taken from UPMC's statement of material facts and accompanying exhibits and Nickey's counter statement of undisputed material facts and exhibits. (Doc. 21-1; Doc. 25-2). Pursuant to Local Rule 56.1, Nickey has provided her response to UPMC's statement of facts and has provided accompanying exhibits. (Doc. 25-2). Where Nickey disputes facts and supports those disputes in the record, as required by Local Rule 56.1, those disputes are noted. The Court accepts as true all undisputed material facts supported by the record. Where the record evinces a disputed fact, the Court will take notice. In addition, the facts have been taken in the light most favorable to Nickey as the non-moving party, with all reasonable inferences drawn in her favor.
On June 15, 2016, Nickey sustained a back injury while working as a mammography technologist. (Doc. 21-1, ¶ 1; Doc. 21-2, at 9, 10; Doc. 25-2, ¶ 1). Nickey testified that she was performing a mammography on a patient when the patient's legs gave out. (Doc. 21-1, ¶ 2; Doc. 21-2, at 10-11, Doc. 25-2, ¶ 2). Nickey tried to catch the patient but they both fell back into the patient's wheelchair. (Doc. 21-1, ¶ 2; Doc. 21-2, at 10-11; Doc. 25-2, ¶ 2). Nickey believed she sprained a muscle at the time. (Doc. 21-1, ¶ 3; Doc. 21-2, at 12; Doc. 25-2, ¶ 3). Nickey reported the work-related injury to her employer the next day. (Doc. 21-1, ¶ 4; Doc. 21-2, at 13; Doc. 25-2, ¶ 4). Nickey reported the matter to her supervisor, Loretta Rosko (“Rosko”). (Doc. 21-1, ¶ 5; Doc. 21-2, at 14; Doc. 25-2, ¶ 5). The employer provided Nickey with a work injury packet and sent her to the medical provider, AllBetterCare. (Doc. 21-1, ¶ 6; Doc. 21-2, at 15, 3233; Doc. 25-2, ¶ 6). Nickey returned to work with restrictions working approximately three days a week. (Doc. 21-1, ¶ 7; Doc. 21-2, at 16). Nickey also consulted an orthopedic surgeon, Dr. David Frank. (Doc. 21-1, ¶ 8; Doc. 21-2, at 17; Doc. 25-2, ¶ 8). The employer sent Nickey to an independent medical exam and offered her a return to work on a full-time basis on February 16, 2017.(Doc. 21-1, ¶ 9; Doc. 21-2, at 33). Nickey declined the offer after consulting with her orthopedic surgeon and she continued to work approximately three days per week. (Doc. 21-1, ¶ 10; Doc. 21-2, at 19). Nickey had now been diagnosed with an annular tear of the lumbar spine. (Doc. 21-1, ¶ 11; Doc. 21-2, at 20; Doc. 25-2, ¶ 11). Nickey continued to work on a reduced work schedule until the summer of 2018. (Doc. 1, at 3; Doc. 21-1, ¶ 12; Doc. 25-2, ¶ 12). By now the hospital had been acquired by UPMC. (Doc. 21-1, ¶ 13; Doc. 21-2, at 26; Doc. 25-2, ¶ 13). In August of 2018, Nickey testified that she had a discussion with Tenna Snyder, (“Snyder”), in which she informed Snyder that she was having difficulty concentrating, she was unable to sleep, and she was tired. (Doc. 21-1, ¶ 14; Doc. 21-2, at 21-23). Snyder testified that she had a discussion with Nickey because Rosko had asked Snyder about the duration of Nickey's restrictions. (Doc. 21-1, ¶ 15; Doc. 21-2, at 55, 56; Doc. 25-2, ¶ 15). Nickey told Snyder that her issues with concentration were caused by a condition called Hashimoto's disease. (Doc. 21-1, ¶ 16; Doc. 21-2, at 23; Doc. 25-2, ¶ 16). Hashimoto's is an autoimmune disease and is unrelated to Nickey's 2016 injury. (Doc. 21-1, ¶ 17; Doc. 21-2, at 23; Doc. 25-2, ¶ 17). Nickey has had the disease since the 1990s. (Doc. 21-1, ¶ 18; Doc. 21-2, at 24; Doc. 25-2, ¶ 18). As for Nickey's work-related annular tear, Nickey stated that the injury was permanent. (Doc. 21-1, ¶ 19; Doc. 21-2, at 25; Doc. 25-2, ¶ 19). Nickey entered into a Worker's Compensation Compromise and Release for which she received $55,000. (Doc. 21-1, ¶ 20; Doc. 21-2, at 83-86; Doc. 25-2, ¶ 20). Nickey agreed that she was not due any further compensation based on her worker's comp injury in March 2018. (Doc. 21-1, ¶ 21; Doc. 21-2, at 83-86). When UPMC acquired the facility where Nickey worked UPMC offered her full-time employment. (Doc. 21-1, ¶ 22; Doc. 21-2, at 27, 36-37). Nickey was not able to perform fulltime employment but accepted the position nonetheless. (Doc. 21-1, ¶ 23; Doc. 21-2, at 29, 3941). Returning to the August 2018, discussion between Snyder and Nickey, Snyder testified that she was concerned for patient safety when she learned of Nickey's inability to concentrate. (Doc. 21-1, ¶ 24; Doc. 21-2, at 60-61; Doc. 25-2, ¶ 24). During deposition, Nickey stated that she could not recall, did not understand, misinterpreted, or misunderstood information presented and requested that a question be repeated on 71 occasions. (Doc. 21-1, ¶ 25; Doc. 21-2, at 114-127). She placed Nickey on a personal leave of absence, in accordance with the Reasonable Accommodation policy, and asked Nickey to provide a certification of a health care provider for personal leave. (Doc. 21-1, ¶ 26). When the document was returned it noted that Nickey could work only two days a week.(Doc. 21-1, ¶ 27). The health care provider filled out a form listing the duration of Nickey's restrictions from winter 2017, to present, indicating that Nickey's restrictions ended the day her doctor filled out the form. (Doc. 21-1, ¶ 28; Doc. 21-2, at 57). The form was prepared by Dr. Wellmon. (Doc. 21-1, ¶ 29; Doc. 21-2, at 58; Doc. 25-2, ¶ 29). Snyder contacted Nickey to tell her the leave form was deficient. (Doc. 21-1, ¶ 30; Doc. 25-2, at ¶ 30). Snyder provided Nickey with a letter for Dr. Wellmon dated August 21, 2018. (Doc. 21-1, ¶ 30; Doc. 21-2, at 68-71). The letter requested information on whether Nickey could perform the essential functions of her job and the duration of any restrictions. (Doc. 21-1, ¶ 31; Doc. 21-2, at 68-71; Doc. 25-2, ¶ 31). Dr. Wellmon never responded to the letter.(Doc. 21-1, ¶ 31; Doc. 21-2, at 75-76). On September 25, 2018, Snyder wrote to Nickey explaining that she had not received a response to her inquiries and she needed the information to substantiate Nickey's leave of absence. (Doc. 21-1, ¶ 32; Doc. 25-2, ¶ 32). The letter to Nickey also explained that the previous medical certification form lacked the correct dates. (Doc. 21-1, ¶ 33; Doc. 25-2, ¶ 33). Snyder requested the new medical certification be returned by October 3, 2018. (Doc. 21-1, ¶ 34; Doc. 25-2, ¶ 34). Human Resources received an unsigned medical certification form from Nickey dated September 27, 2018. (Doc. 21-1, ¶ 35; Doc. 212, at 73-74). On October 9, 2018, Snyder sent Nickey yet another letter explaining that she had not received the documents requested. (Doc. 21-1, ¶ 36; Doc. 25-2, ¶ 36). The letter explained that the documents were needed to avoid termination. (Doc. 21-1, ¶ 37; Doc. 25-2, ¶ 37). It again explained that the first medical certification only showed a need for accommodation through August 16, 2018, and the dates would need to be corrected. (Doc. 21-1, ¶ 38; Doc. 252, ¶ 38). Snyder requested a completed essential functions form and medical certification by October 17, 2018, to avoid termination. (Doc. 21-1, ¶ 39; Doc. 25-2, ¶ 39). Dr. Wellmon faxed the new form to Snyder on October 17, 2018. (Doc. 25-2, ¶ 40; Doc. 25-3, at 146). The form stated that Dr. Wellmon was not the treating physician. (Doc. 21-1, ¶ 41; Doc. 25-3, at 146). The document indicated that Dr. Clawson was the treating physician. (Doc. 21-1, ¶ 42; Doc. 25-3, at 146). Dr. Clawson sent a record of Nickey's treatment that did not clarify the dates of Nickey's inability to perform her job. (Doc. 21-1, ¶ 43). Nickey received another letter from Snyder dated October 25, explaining that she would need a completed Essential Functions form after Nickey's doctor's appointment on November 6. (Doc. 21-1, ¶ 44; Doc. 25-2, ¶ 44). The letter asked for a properly completed medical certification and essential functions form. (Doc. 21-1, ¶ 45). Snyder spoke with Nickey on November 7 at that time Nickey explained that her doctor would not complete the form. (Doc. 21-1, ¶ 46; Doc. 25-2, ¶ 46). Nickey also stated that after seeing the doctor she wasn't able to perform the essential functions of her job and she was unable to perform work of any kind. (Doc. 21-1, ¶ 47; Doc. 21-2, at 59). On November 9, 2018, Snyder sent Nickey another letter explaining that after their phone call she understands that Nickey cannot perform any work and her employment was terminated. (Doc. 21-1, ¶ 48; Doc. 21-2, at 77). Nickey stated in her application for unemployment benefits immediately after termination that she was unable to work. (Doc. 21-1, ¶ 49; Doc. 21-2, at 46).
Nickey denies this fact as stated and notes that she testified that she did not recall if she had any restrictions at the time that she returned to work in June 2016 after her injury. (Doc. 25-2, ¶ 7; Doc. 25-3, at 18). Further, Nickey states that although she was scheduled to work her actual schedule, she ended up taking a couple of days off here and there and took as many as one to two days off a week during that time. (Doc. 25-2, ¶ 7; Doc. 25-3, at 18). Nickey also states that since 2016, Snyder was aware that Nickey had been granted permission to work fewer than 32 hours per week because of her restrictions. (Doc. 25-2, ¶ 7; Doc. 25-3, at 47).
Nickey admits this fact in part and denies this fact in part. (Doc. 25-2, ¶ 9) Nickey admits that UPMC sent her to an independent medical examination. (Doc. 25-2, ¶ 9). However, she references a letter from February 16, 2017, from Carlisle Regional Medical Center offering her continued employment “working [her] standard day shift schedule Monday through Friday in mammography.” (Doc. 25-2, ¶ 9; Doc. 25-3, at 82).
Nickey denies this fact as stated and notes that after receiving the letter from Rockwood, Nickey took the letter to Dr. Frank who maintained Nickey's then current restrictions of remaining out of work one to two days a week. (Doc. 25-2, ¶ 10; Doc. 25-3, at 19). Further, Nickey states that Dr. Frank prescribed her restrictions because of an annular tear, a herniated disc, and torn nerves in her spine. (Doc. 25-2, ¶ 10; Doc. 25-3, at 19).
Nickey further states that she has been diagnosed with a herniated disc and torn nerves in her spine. (Doc. 25-2, ¶ 11; Doc. 25-3, at 19).
Nickey admits this fact in part and denies this fact in part. (Doc. 25-2, ¶ 14). Nickey admits that in August 2018, she had a conversation with Snyder and mentioned that she has difficulty concentrating sometimes. (Doc. 25-2, ¶ 14). Nickey denies the remaining allegations and states that Snyder called her into Terrazas's office and started asking her about different health conditions that she had. (Doc. 25-2, ¶ 14; Doc. 25-3, at 25). Nickey told Snyder that she writes things down in a notebook to make sure that she remembers them and that it was not that she would not remember things, but that sometimes it could be overwhelming if she was having an issue with her Hashimoto's disease. (Doc. 25-2, ¶ 14; Doc. 25-3, at 25). Nickey informed Snyder about her Hashimoto's disease around this time in August 2018, when Snyder asked Nickey why her hair was falling out. (Doc. 25-2, ¶ 14; Doc. 25-3, at 25).
Nickey further states that Rosko testified that she did not recall having either a phone call or an in-person meeting with Snyder where Rosko asked Snyder about how long Nickey's restrictions would last. (Doc. 25-2, ¶ 15; Doc. 25-3, at 94).
Nickey denies this statement and notes that her Compromise and Release Agreement states that Nickey is not entitled to any benefits for her June 15, 2016, work injury other than the sums specifically noted in the Agreement. (Doc. 25-2, ¶ 21; Doc. 25-3, at 107-110). Nickey notes that UPMC did not raise release as an affirmative defense to her complaint. (Doc. 5, at 12; Doc. 25-2, ¶ 21).
Nickey denies this statement and notes that she testified that she did not remember ever seeing the document referenced and that UPMC did not produce any witness that either identified or authenticated this document. (Doc. 25-2, ¶ 22; Doc. 25-3, at 28).
Nickey denies this statement and notes that she testified that she did not recall seeing or filling out the document referenced and that UPMC did not produce any witness that either identified or authenticated this document. (Doc. 25-2, ¶ 23; Doc. 25-3, at 29-30).
Nickey denies this statement and states that while the contents of Plaintiff's responses to UPMC's questions are important, that Plaintiff could not recall the answer to all of defense counsel's questions (including, for example, when defense counsel repeatedly asked Plaintiff about documents that Plaintiff had never seen before) or that Plaintiff asked defense counsel to rephrase some of his questions (including, for example, when defense counsel occasionally mixed up the year in a question) is immaterial to the outcome of this motion. (Doc. 25-2, ¶ 23). Nickey further states that defense counsel is free to attempt to impeach Plaintiff's memory or understanding at trial but to do so in this motion is inappropriate and frankly a gratuitous attempt to disparage an individual who has a disability that does at times impact her memory. (Doc. 25-2, ¶ 23).
Nickey admits this fact in part and denies this fact in part. (Doc. 25-2, ¶ 26). Nickey admits that Snyder placed her on a personal leave of absence and that Snyder asked her to provide a certification of a health care provider for personal leave. (Doc. 25-2, ¶ 26). Nickey denies the remaining allegations and states that Snyder testified that she did not recognize the policy document and that Snyder has had no role in applying UPMC's reasonable accommodation policy for UPMC's employees with disabilities. (Doc. 25-2, ¶ 26; Doc. 25-3, at 119, 121). Nickey further notes that if during a leave evaluation, an employee of UPMC indicated to Snyder that the employee may have one or more restrictions that require an accommodation, Snyder would not be able to address which accommodations UPMC would be able to provide to the employee. (Doc. 25-2, ¶ 26; Doc. 25-3, at 131).
Nickey denies this fact and states that she testified that the form indicated that she was missing two days per week from work at the time it was completed. (Doc. 25-2, ¶ 27; Doc. 25-3, at 34).
Nickey denies this fact as stated and notes that her physician estimated the beginning and ending dates for the period of incapacity as “winter 2017 present.” (Doc. 25-2, ¶ 28; Doc. 25-3, at 144).
Nickey this fact and states that Snyder testified that she did not recall whether she gave the form to Nickey or sent it to Dr. Wellmon's office. (Doc. 25-2, ¶ 30; Doc. 25-3, at 127).
Nickey denies this fact and states that Dr. Wellmon filled out the form multiple times, and each time, Snyder rejected the completed form. (Doc. 25-2, ¶ 31; Doc. 25-3, at 34).
Nickey further states that she never requested a leave of absence, but was instead put on an involuntary leave of absence by Snyder. (Doc. 25-2, ¶ 32; Doc. 25-3, at 39; Doc. 25-3, at 136).
Nickey denies this fact and states that Snyder testified that she did not recall receiving this unsigned form. (Doc. 25-2, ¶ 35; Doc. 25-3, at 139).
Nickey admits this fact but notes that she had returned the requested forms multiple times, that she questioned Snyder about the returned forms, and that she still returned the completed essential functions form to Snyder before October 17, 2018. (Doc. 25-2, ¶ 1; Doc. 253, at 39).
Nickey denies this fact and notes that the form states that Dr. Wellmon was not the treating physician for her fibromyalgia. (Doc. 25-2, ¶ 41; Doc. 25-3, at 146).
Nickey denies this fact and notes that the form states that Dr. Clawson was the treating physician for her fibromyalgia. (Doc. 25-2, ¶ 42; Doc. 25-3, at 146).
Nickey denies this fact and states that Snyder testified that she did receive and review the medical records from Dr. Clawson, but that she did not remember what, if anything, she did after she reviewed them. (Doc. 25-2, ¶ 43; Doc. 25-3, at 134). The Court notes that the evidence UPMC presents in support of this fact does not appear on the record.
Nickey admits this fact in part and denies this fact in part. (Doc. 25-2, ¶ 45). Nickey admits that the letter asked for a completed essential functions form. (Doc. 25-2, ¶ 45). Nickey denies the remaining allegations and states that the letter does not ask for, or even mention, a medical certification form. (Doc. 25-2, ¶ 45; Doc. 25-3, at 148). Nickey states that her November 6, 20187, appointment was with her Rheumatologist, Dr. Roumm, which had nothing to do with her work restrictions. (Doc. 25-2, ¶ 45; Doc. 25-3, at 40). Further, Nickey states that this was the second time that Snyder requested medical records from the wrong physician and that she spoke to Snyder multiple times about Snyder's request for documents from the wrong doctors. (Doc. 25-2, ¶ 45; Doc. 25-3, at 40).
Nickey denies this fact and states that she told Snyder that she was available and that she wanted to come back to work, but Snyder told her that she could not return to work with restrictions. (Doc. 25-2, ¶ 47; Doc. 25-3, at 44).
Nickey denies this fact and states that she wrote the reason that UPMC told her as to why she had been terminated in her application for unemployment compensation benefits. Doc. 25-2, ¶ 49; Doc. 25-3, at 43, 44).
Nickey states the following additional facts in her brief in opposition to UPMC's motion for summary judgment. (Doc. 25-2, at 9-11). When Nickey returned to work after her work-related injury, Rosko checked with the then-Director of Radiology at Carlisle Hospital, Jennifer Dorrough (“Dorrough”), before reducing Nickey's schedule from four (4) to five (5) days a week to part-time. (Doc. 25-2, ¶ 50; Doc. 25-3, at 92). Dorrough approved Rosko's decision to reduce Nickey's schedule to part-time. (Doc. 25-2, ¶ 51; Doc. 25-3, at 92). From the date that Nickey started working part-time hours up through August 2018, Rosko did not have any concerns regarding the operational capacity of the mammography department. (Doc. 25-2, ¶ 52; Doc. 25-3, at 95). Between January 2018, and August 14, 2018, when Snyder placed Nickey on involuntary leave, Terrazas did not observe any issues with the productivity or working of the mammography department. (Doc. 25-2, ¶ 53; Doc. 25-3, at 158). Before Snyder placed Nickey on leave on August 14, 2018, Terrazas had never expressed any concerns about Nickey's work performance or her reduced schedule to anyone in human resources. (Doc. 25-2, ¶ 54; Doc. 253, at 160). Up until the meeting on August 14, 2018, when Snyder sent Nickey home, Terrazas was satisfied with Nickey's work schedule as it existed at the time. (Doc. 25-2, ¶ 55; Doc. 25-3, at 160). Nickey was not placed on leave on August 14, 2018, because Nickey was working less than full-time hours. (Doc. 25-2, ¶ 56; Doc. 25-3, at 99). Neither Terrazas nor Rosko had a role in UPMC's decision to place Nickey on an unpaid leave of absence in August 2018. (Doc. 25-2, ¶ 57; Doc. 25-3, at 95, 160). Neither Terrazas nor Rosko had a role in UPMC's decision to terminate Nickey's employment. (Doc. 25-2, ¶ 58; Doc. 25-3, at 96, 163). No one from UPMC's human resources department consulted with Terrazas regarding UPMC's decision to terminate Nickey. (Doc. 25-2, ¶ 59; Doc. 15-3, at 163). Approximately one (1) year after Nickey's termination, UPMC hired Courtney Nederer (“Nederer”). (Doc. 25-2, ¶ 60; Doc. 25-3, at 97). Nederer worked 24 hours per week, which was probably the same as the number of hours per week worked by Nickey. (Doc. 25-2, ¶ 61; Doc. 25-3, at 97). Nederer was replaced by Colleen Hunt (“Hunt”) after Nederer resigned her employment with UPMC. (Doc. 25-2, ¶ 62; Doc. 25-3, at 97). Hunt worked about the same number of hours as Nederer, two (2) to three (3) days per week. (Doc. 25-2, ¶ 63; Doc. 25-3, at 97). After Hunt left her employment with UPMC, UPMC hired Chelsea Garrett, who also worked about 24 hours per week. (Doc. 25-2, ¶ 64; Doc. 25-3, at 97).
II. Motion for Summary Judgment
In its motion for summary judgment, UPMC asserts that the record does not establish that Nickey was discriminated against or retaliated against under the ADA or PHRA. (Doc. 22, at 9-16). Specifically, UPMC argues that (1) it did not fail to accommodate Nickey as it provided her with accommodations, (2) Nickey's termination was not related to her disability, and (3) Nickey was not retaliated against based on her disability. (Doc. 22, at 9-13). Nickey contends that a genuine issue of material fact exists as to (1) whether UPMC failed to accommodate her disability, (2) whether UPMC terminated Nickey due to her disability, and (3) whether she suffered an adverse employment action because of her request for a reasonable accommodation for her disabilities. (Doc. 25, at 17-24).
A. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, the court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994). "The party moving for summary judgment bears the initial burden of showing the basis for its motion ... [and i]f the movant meets that burden, the onus then ‘shifts to the non-moving party to set forth specific facts showing the existence of [a genuine issue of material fact] for trial.'” Martinez v. Triad Controls, Inc., 593 F.Supp.2d 741, 749 (E.D. Pa. 2009) (citing Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir.2001)). “Although the party opposing summary judgment is entitled to the ‘benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact.'” Velentzas v. U.S., No. 4: CV -07-1255, 2010 WL 3896192, *7 (M.D. Pa. August 31, 2010) (quoting Goode v. Nash, 241 Fed.Appx. 868, 869 (3d Cir. 2007) (citation omitted). The opposing party “cannot rest solely on assertions made in the pleadings, legal memorandum, or oral argument.” Goode, 241 Fed.Appx. at 869 (quoting Berckeley Inv. Grp., Ltd. V. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial,” Rule 56 mandates the entry of summary judgment because such a failure “necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir.2007). Further, "[t]he mere existence of some evidence in support of the nonmovant is insufficient to deny a motion for summary judgment; enough evidence must exist to enable a jury to reasonably find for the nonmovant on the issue." Turco v. City of Englewood, N.J., 935 F.3d 155, 161 (3d Cir. 2019) (citing Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010)).
See also Beenick v. LeFebvre, 684 Fed.Appx. 200, 206 (3d Cir. 2017) (stating the purpose of requiring parties to cite to particular parts of the record in their briefs about a motion for summary judgment is to “assist the court in locating materials buried in a voluminous record”) (quoting Fed.R.Civ.P. 56(c)(1)(A)).
B. ADA Discrimination and Retaliation
Broadly speaking, the ADA bars an employer from “discriminating] against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a); Mercer v. Southeastern Pennsylvania Transit Authority, 26 F.Supp.3d 432, 440 (E.D.Pa. 2014). To establish a prima facie case of discrimination under the ADA, a plaintiff must show “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999) (quoting Gaul v. Lucent Tech., 134 F.3d 576, 580 (3d Cir. 1998)). The adverse employment decisions barred by the ADA include “not only adverse actions motivated by prejudice and fear of disabilities, but also ... failing to make reasonable accommodations for a plaintiff's disabilities.” Id. Specifically, the ADA defines discrimination to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A).
UPMC does not contend that Nickey is not a disabled person within the meaning of the ADA. (Doc. 22, at 12; Doc. 25, at 22).
Federal courts apply the McDonnell Douglas burden-shifting framework to assess ADA disparate treatment claims. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant “to articulate some legitimate nondiscriminatory reason” for the alleged discriminatory action. McDonnell Douglas, 411 U.S. at 802. Finally, if the defendant manages to rebut the plaintiff's prima facie case, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were merely a pretext for discrimination. Jones v. Sch. Dist. of Phila, 198 F.3d 403, 410 (3d Cir. 1999) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). In order to defeat a motion for summary judgment under this framework, a plaintiff must identify some evidence from which a “factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. ” Bair v. Citizens Bank of Pennsylvania, 2015 WL 13738832, at *8 (M.D. Pa. 2015); quoting Id. at 764. The Third Circuit has explained that in order to prove pretext, a plaintiff may rely on, inter alia, a defendant's credibility or lack thereof, the timing of an employee's termination, and evidence of disparate treatment. See, e.g., Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998) (ADEA case) (citing Fuentes, 32 F.3d at 765). Also potentially relevant is evidence of inconsistent reasons provided as the basis for workplace discipline. See Zelinski v.Pa. State Police, 108 Fed.Appx. 700, 707 (3d Cir. 2004).
Nickey contends that UPMC discriminated against her by failing to accommodate her disabilities or engage in the interactive process; by terminating her due to her disability; and by terminating her in retaliation for her request for reasonable accommodations.
C. Wrongful Termination
UPMC argues that Nickey's claims of discrimination relating to her termination fail because she has not established that she is a qualified individual with a disability and that no accommodation would have enabled her to perform the essential functions of her job. (Doc. 22, at 12-13). Nickey responds that there is a genuine issue of material fact as to whether she was terminated from her position due to her disabilities related to her work-related injury. (Doc. 25, at 21). Specifically, Nickey argues that a genuine issue of material fact exists as to whether she was a qualified individual for her position even though she could not work full-time hours and whether working full-time hours was an essential function of her position. (Doc. 22, at 22-23).
1. Qualified Individual
UPMC asserts that Nickey has not shown that she was otherwise qualified to perform the position of mammography technologist. (Doc. 22, at 12). Specifically, UPMC states that it hired Nickey as a full-time employee, however, Nickey was aware when she accepted the position that she could not work full-time and worked part-time. (Doc. 22, at 12). Further, UPMC contends that Nickey stated “she was unable to work at all after meeting with her doctor.” (Doc. 22, at 13). in contrast, Nickey states that there is a genuine issue of material fact as to whether working full-time hours was an essential function of the mammography technologist position and that in her deposition she contradicted UPMC's assertion that she had stated she was unable to work. (Doc. 25, at 23).
Under the ADA a qualified individual is defined as someone “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). In order to assess whether an individual is qualified the Court must inquire as to “(1) whether the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position that such individual holds or desires ... [and] (2) whether the individual, with or without reasonable accommodation, can perform the essential functions of the position held or sought.” Deane v. Pocono Med. Ctr., 142 F.3d 138, 145 (3d Cir. 1998) (citing 29 C.F.R. pt. 1630, app. § 1630.2(m); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.1996); Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995)). As UPMC does not dispute Nickey's general qualifications, the Court turns to the second element of the analysis. See Deane, 142 F.3d at 145.
To determine if an individual can, with or without reasonable accommodation, perform the essential function of the position “a court must consider whether the individual can perform the essential functions of the job without accommodation.” Deane, 142 F.3d at 146. If the induvial can perform the job without accommodation then she is qualified. Deane, 142 F.3d at 146. However, if she cannot perform the job without accommodation, “then a court must look to whether the individual can perform the essential functions of the job with a reasonable accommodation. If so, the individual is qualified.... If not, the individual has failed to set out a necessary element of the prima facie case.” Deane, 142 F.3d at 146.
UPMC contends that Nickey could not perform the essential functions of her job as a mammography technologist because she could not work full time. (Doc. 22, at 12; Doc. 21-1, at ¶¶ 22-23; Doc. 21-2, at 27, 29). However, Nickey argues that working full-time hours was not an essential function of her position. (Doc. 25, at 23). Nickey states that from the date she began working a reduced schedule through the date she was placed on an involuntary leave of absence, neither Rosko nor Terrazas had any issue with the mammography department's operations. (Doc. 25, at 23; Doc. 25-2, at ¶¶ 52-53; Doc. 25-3, at 95, 158). Additionally, Terrazas indicated that he was satisfied with Nickey's performance and had never indicated to anyone in the human resources department that he had concerns with Nickey's performance and work schedule. (Doc. 25, at 23; Doc. 25-2, at ¶¶ 54-55; Doc. 25-3, at 160). Further, Nickey lists three individuals who were employed in the same position after her termination and worked similar hours to the hours that she worked. (Doc. 25-2, ¶¶ 60-64; Doc. 25-3, at 97). Thus, a genuine issue of material fact exists as to whether Nickey could perform the essential functions of her position as a mammography technologist as Nickey has presented evidence that there were no issues reported in the department and that people in her position also worked part-time. Additionally, even if Nickey were unable to perform the essential function of the position without accommodation, the ADA provides that reasonable accommodations can include “part-time or modified work schedules.” Taylor, 184 F.3d at 319 (citing 42 U.S.C. § 12111(9)(B)). Nickey has demonstrated that a genuine issue of material fact exists as to whether she was qualified to perform her position as a mammography technologist with or without reasonable accommodation as it pertains to her part-time hours.
Next, UPMC contends that Nickey stated she was “unable to work” and at that point, she was no longer qualified to perform her job with or without accommodation. (Doc. 22, at 13; Doc. 21-1, ¶ 47; Doc. 21-2, at 59). In response, Nickey states that she did not tell Snyder that she was unable to work, but that she was available and that she wanted to come back to work. (Doc. 25-2, at ¶ 47; Doc. 25-3, at 44, 47). Nickey also stated in her deposition that Snyder was the one that told her that she could not return to work with restrictions. (Doc. 25-2, ¶ 47; Doc. 25-3, at 44, 47). A question of fact exists as to whether Nickey indicated to Snyder that she was unable to work. (Doc. 21-2, at 59; Doc. 25-3, at 44, 47). Nickey has demonstrated that a genuine issue of material fact exists as to whether she was unable to work or whether she was willing to work and not permitted to return.
The undersigned finds that the record before it is sufficient for a reasonable juror to conclude that she is otherwise qualified to perform the essential functions of her former job. See Shaner, 204 F.3d at 500. The second element of the prima facie case of discrimination is thus also satisfied.
2. Adverse Employment Decision
Next, the Court examines whether the record reflects a material issue of fact regarding whether Nickey suffered an adverse employment decision as a result of discrimination. The Court considers whether Nickey has “provide[d] evidence that supports a logical inference of causation between the alleged disability and the adverse employment action.” Rubano v. Farrell Area Sch. Dist., 991 F.Supp.2d 678, 700 (W.D Pa. 2014). In order to defeat summary judgment, a plaintiff must make a showing that “the disability ‘played a role in the employer's decisionmaking process and that it had a determinative effect on the outcome of that process.'” Moore v. CVS Rx Services, Inc., 142 F.Supp.3d 321, 346 (M.D. Pa. 2015) (quoting New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 301 n. 4 (3d Cir. 2007)). In employment discrimination cases, courts look to several factors in determining whether a plaintiff has established causation, including (1) temporal proximity between a protected activity and the adverse employment action, (2) whether there is a “pattern of antagonism” following protected conduct, and (3) whether the record, taken as a whole, raises an inference of causation. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997); Abdul-Latif v. County of Lancaster, 990 F.Supp.2d 517, 530 (E.D. Pa. 2014) (citing Farrell, 206 F.3d at 280).
Nickey contends that a genuine issue of material fact exists as to whether UPMC terminated her due to her disabilities related to her work-related injury. (Doc. 25, at 21). On June 15, 2016, Nickey sustained a back injury while working as a mammography technologist. (Doc. 21-1, ¶ 1; Doc. 21-1, at 9, 10; Doc. 25-2, ¶ 1). After Nickey recovered from her work-related injury and she returned to work in January 2018, she was provided with a reduced schedule and there were no complaints about the operational capacity of the mammography department. (Doc. 25-2, ¶¶ 51-53; Doc. 25-3, at 92, 95, 158). However, on August 14, 2018, Snyder placed Nickey on a leave of absence. (Doc. 21-1, ¶ 26; Doc. 25-2, ¶ 26). Nickey states that as soon as she requested to return to work with her previous accommodations for her work-related injury, she was terminated. (Doc. 21-1, ¶ 48; Doc. 25-2, ¶ 47; Doc. 25-3, at 44). Conversely, UPMC contends that Nickey was placed on temporary leave because Snyder was concerned for patient safety when she learned of Nickey's inability to concentrate. (Doc. 21-1, ¶ 24; Doc. 21-2, at 60-61). UPMC asserts that it only terminated her employment after Nickey told Snyder on November 7, 2018, that she was not able to perform the essential functions of her job and she was unable to perform work of any kind. (Doc. 21-1, ¶¶ 24, 47-48; Doc. 21-2, at 22; Doc. 25-2, ¶¶ 47-48). Nickey refutes UPMC's argument, stating that she told Snyder that she was available and that she wanted to return to work. (Doc. 25-2, ¶ 47; Doc. 25-3, at 40).
Nickey has failed to show that she has “suffered an otherwise adverse employment decision as a result of discrimination.” Taylor, 184 F.3d at 306 (emphasis added). As Nickey seems to argue, “[c]lose ‘temporal proximity,' between the protected status ... by the employee and the adverse action by the employer, is suggestive but not determinative of causation.” Emmell v. Phoenixville Hosp. Co., LLC, 303 F.Supp.3d 314, 332 (E.D. Pa. 2018) (citing Farrell, 206 F.3d at 280); (Doc. 25, at 26). Nickey's work related injury occurred on June 15, 2016, and she was terminated from her position with UPMC on November 9, 2018. (Doc. 21-1, ¶ 1; Doc. 21-2, at 9-10, 77; Doc. 25-2, ¶ 1). A two-year gap in time is insufficient, without other contributing factors, to suggest a link between the protected status and the adverse action. See Blakney v. City of Phila., 559 F. App'x. 183, 186 (3d Cir. 2014) (not precedential) (“We have found that a temporal proximity of two days is unusually suggestive of causation, but have held that a temporal proximity greater than ten days requires supplementary evidence of retaliatory motive.” (citations omitted). However, Nickey does not point to any reason, motivation, or link between her alleged disability and her termination, outside of Nickey's subjective belief that they are related and the close temporal proximity between her purported request for accommodations and her termination. (Doc. 25, at 21, 26).
Nickey has presented no evidence showing causation between her disabled status due to a work-related injury and her termination. The undersigned, therefore, finds that even viewing the facts in the light most favorable to Nickey, there is no genuine dispute as to any material facts relating to whether Nickey's termination was a result of discrimination based on her disability, and Nickey has presented no evidence showing that her termination was discriminatory regarding her work-related injury. Therefore, Nickey has failed to make out a prima facie case of discrimination under the ADA.
3. Legitimate Nondiscriminatory Reason
Even if Nickey had presented evidence to successfully make out a prima facie case of discrimination under the ADA for her termination, UPMC has offered evidence of a legitimate nondiscriminatory reason for the adverse action. Again, the burden at this stage is “relatively light,” as a defendant need only introduce “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).
UPMC has presented evidence showing that Nickey was placed on involuntary leave because Nickey represented that she was experiencing difficulty concentrating caused by a condition called Hashimoto's disease, and Snyder became concerned that this difficulty concentrating would affect patient safety. (Doc. 21-1, ¶¶ 16-18, 24; Doc. 22, at 22; Doc. 26, at 9). In Nickey's deposition, regarding the conversation with Snyder in 2018 about Nickey's Hashimoto's disease, Nickey stated: “I have difficulty concentrating sometimes, so I write things down to make sure that I remember them. It's not that you don't remember; it's just sometimes it's overwhelming if you're having an issue with your Hashimoto's. So I have a notebook that I write things down in.” (Doc. 21-2, at 23). Further, Nickey clarifies that her diagnosis of Hashimoto's disease is unrelated to her work-related injury in 2016. (Doc. 21-1, at 23-24). In accordance with UPMC's Reasonably Accommodation Policy, Snyder placed Nickey on an involuntary leave of absence following Nickey's disclosure so that the UPMC could obtain information from Nickey's health care provider about her inability to concentrate. (Doc. 22, at 8; Doc. 21-1, ¶ 26; Doc. 25-2, ¶ 26). UPMC states that it requested that Nickey provide a work capabilities form to determine whether Nickey could perform all of the essential functions of her job with or without accommodations; However, Nickey failed to do so and told Snyder on November 7, 2018, that she was unable to perform work of any kind due to her inability to concentrate. (Doc. 21-1, ¶¶ 26, 46-48; Doc. 22, at 8; Doc. 25-1, ¶¶ 26, 47-49). In addition, during Nickey's unemployment compensation work capabilities form, Nickey responded “N,” indicating no, to the question “Are you able to work?”, and listed sixteen (16) medical reasons that support her inability to work at the relevant time due to health reasons. (Doc. 21-2, at 111). However, at the unemployment compensation hearing, when asked about her response, Nickey responded: “That must have been an error, because I am able to work and that's what I did put down when I filled it out.” (Doc. 21-2, at 111). When confirming that she listed sixteen reasons that support her inability to work not at this time due to health reasons, Nickey responded “I completed the form. Correct.” (Doc. 21-2, at 111).
UPMC has met its limited burden of “articulation” by offering that Snyder made the decision to execute the termination-not because of Nickey's work-related injury-but because UPMC believed Nickey had failed to adequately supply the required documentation necessary to extend her leave and thereafter did not return to work. This evidence demonstrates that UPMC had a legitimate, nondiscriminatory reason for placing Nickey on involuntary leave.
4. Pretext for Discrimination
Nickey has not provided any evidence that would allow a factfinder to “disbelieve the employer's articulated legitimate reasons ... or[ ] believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.” Mercerv. Se. Pa. Transit Auth., 26 F.Supp.3d 432, 445 (E.D. Pa. 2014). Nickey has stated that when she returned to work after her work-related injury, she was provided with a reduced schedule, no one complained about the operational capacity of the mammography department, and she was not unable to work when she was terminated. (Doc. 25-2, ¶¶ 51-53; Doc. 25-3, at 92, 95, 158). However, Nickey “cannot simply show that the employer's decision was wrong or mistaken.” Murrell v. Penn Presbyterian Med. Ctr., No. CV 18-1202, 2019 WL 2177911, at *6 (E.D. Pa. May 17, 2019) (quoting Fuentes, 32 F.3d at 765). Nickey must instead present evidence to “support an inference that the employer did not act for its stated reasons.” Sempier v. Johnson & Higgins, 45 F.3d 724, 731 (3d Cir. 1995). The record is devoid of any evidence from which a jury might find that UPMC did not act for the stated reasons or that Nickey was terminated due to her work-related injury. Thus, she has failed to present evidence supporting a claim for discrimination under the ADA. Therefore, it is recommended that summary judgment be granted in favor of UPMC regarding Nickey's wrongful termination claim.
D. Failure to Accommodate
UPMC submits that it accommodated Nickey's disabilities by placing her on a reduced work schedule and proving her with personal leave. (Doc. 22, at 10-11) “Discrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations for a plaintiff's disabilities.” Taylor, 184 F.3d at 306. Specifically, the ADA construes “discrimination” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity ” 42 U.S.c. § 12112(b)(5)(A). In order to establish a prima facie claim for failure to accommodate under the ADA, a plaintiff must prove: “(1) [s]he is a disabled person within the meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) [s]he has suffered an otherwise adverse employment decision as a result of discrimination[,] which in this context includes refusing to make reasonable accommodations for a plaintiff's disabilities.” Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186 (3d Cir. 2009) (quotations omitted). In the case at bar, the undersigned has already found that Nickey was disabled within the meaning of the ADA and that a question of fact exists as to whether she was otherwise qualified to perform the essential functions of her job as a mammography technologist. See supra. Plaintiff's failure-to-accommodate claim turns on the third element: whether UPMC refused to make reasonable accommodations. See Hohider, 574 F.3d at 186.
“In handling a disabled employee's request for a reasonable accommodation, ‘both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.'” Hohider, 574 F.3d at 187 (quoting Taylor, 184 F.3d at 312). The plaintiff bears the initial burden of identifying a possible accommodation and showing that the cost of the accommodation does not clearly exceed its benefits. Skerski v. Time Warner Cable Co., a Div. of Time Warner Entm't Co., L.P., 257 F.3d 273, 284 (3d Cir. 2001); Gaul, 134 F.3d at 580-81; Decker v. Alliant Techs., LLC, 871 F.Supp.2d 413, 431 (E.D. Pa. 2012); O'Donnell v. Pennsylvania Dep't of Corr., 790 F.Supp.2d 289, 301 (M.D. Pa. 2011), aff'd, 507 Fed.Appx. 123 (3d Cir. 2012) (not precedential). Thus, “district courts [may] grant summary judgments for defendants in cases in which the plaintiff's proposal is either clearly ineffective or outlandishly costly.” Walton v. Mental Health Ass'n. of Se. Pa., 168 F.3d 661, 670 (3d Cir. 1999) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 139 (2d Cir. 1995)). If a plaintiff satisfies her initial burden, the burden then shifts to the employer to prove, as an affirmative defense, that “the accommodations requested by the plaintiff are unreasonable, or would cause an undue hardship on the employer.” Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996).
Alternatively, a plaintiff can establish the final element of a failure-to-accommodate claim by showing that a defendant failed to engage in the interactive process. See Willis v. Norristown Area Sch. Dist., 2 F.Supp.3d 597, 606 (E.D. Pa. 2014); Decker, 871 F.Supp.2d at 431 n.17. “The ADA's regulations state that: ‘To determine the appropriate reasonable accommodation it may be necessary for the employer to initiate an informal, interactive process with the employee in need of accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.'” Taylor, 184 F.3d at 311 (quoting 29 C.F.R. § 1630.2(o)(3)). Because “[f]ailure to accommodate an employee's disability is itself evidence of discrimination under the ADA,” “[t]here is no need in such a case for indirect proof of discrimination.” Boice v. Southeastern Pa. Transp. Authority, No. 05-4772, 2007 WL 2916188, at *12 (E.D. Pa. Oct. 5, 2007). As such, the McDonnell Douglas burden shifting framework does not apply. Campo v. Mid-Atlantic Packaging Specialties, LLC, 564 F.Supp.3d 362, 387 (E.D. Pa. 2021); see also Ferreri v. Mac Motors, Inc., 138 F.Supp.2d 645, 650 n.1 (E.D. Pa. 2001) (“In a failure to accommodate claim ... the McDonnell Douglas test does not apply. Once a plaintiff alleges facts that, if proven, would show that an employer should have reasonably accommodated an employee's disability and failed to, the employer has discriminated against the employee.”). A plaintiff establishes that her employer violated its duty to engage in the interactive process by showing that:
1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith.Taylor, 184 F.3d at 319-320.
Nickey claims that UPMC failed to engage in the interactive process in connection to her disabilities. (Doc. 1, at 7). UPMC asserts that Nickey was accommodated for her disabilities when provided Nickey with a reduced work schedule and 12 weeks of personal leave. (Doc. 22, at 10-11). Nickey avers that she was unilaterally placed on involuntary leave and indicated to Snyder that she could return to work, however, Snyder refused to allow her to return to work as long as she had restrictions. (Doc. 25, at 19-20). The parties do not contest that UPMC was aware of Nickey's disability or that Nickey requested accommodations for her disability. (Doc. 22, at 10-12; Doc. 25, at 18). As such, the Court turns to the third and fourth prongs in assessing whether UPMC and Nickey engaged in the interactive process. Taylor, 184 F.3d at 319-20.
First, Nickey disputes that UPMC made a good faith effort to assist her in seeking accommodations. (Doc. 25, at 18). A “part-time or modified work schedule” is a reasonable accommodation under the ADA. See Taylor, 184 F.3d at 319 (citing 42 U.S.C. § 12111(9)(B)). UPMC contends that Nickey stated that after seeing the doctor she was unable to perform the essential functions of her job or work of any kind. (Doc. 21-1, ¶ 47; Doc. 21-2, at 59). Nickey states that UPMC did not accommodate her disability by providing her with a reduced work schedule as Snyder would not permit her to return to work as long as she had restrictions. (Doc. 25-2, ¶ 47; Doc. 25-3, at 44). Further, Nickey avers that she did not tell Snyder that she was unable to work, but that she was available and that she wanted to come back to work. (Doc. 252, at ¶ 47; Doc. 25-3, at 44).
UPMC also argues that Nickey failed to engage in the interactive process because she never provided the information requested regarding her Hashimoto's disease. (Doc. 26, at 6). Nickey argues that she provided UPMC with the requested forms from her physician, Dr. Wellmon, although UPMC refused to accept the forms. (Doc. 25, at 19; Doc. 25-2, at ¶ 31; Doc. 25-3, at 127). Nickey was asked by UPMC to provide a certification of a health care provider for personal leave. (Doc. 21-1, ¶ 26; Doc. 25-2, ¶ 26). Snyder stated that Nickey's form was deficient and provided a new letter and form to be completed by her physician. (Doc. 21-1, ¶ 30; Doc. 25-2, ¶ 30). Nickey contends that Dr. Wellmon filled out the form multiple times, and each time, Snyder rejected the completed form. (Doc. 25-2, ¶ 31; Doc. 25-3, at 34, 144, 146). UPMC argues that Snyder reasonably found the provided forms deficient and that Nickey failed to produce a properly completed form from any medical provider despite being given four separate attempt to obtain such documentation. (Doc. 26, at 4-6). In addition, UPMC avers that it is undisputed that Nickey told Snyder on November 7, that her doctor would not complete the form. (Doc. 21-1, ¶ 46; Doc. 25-2, ¶ 46; Doc. 26, at 5). An issue of fact exists as to whether UPMC made a good faith effort in assisting Nickey in seeking accommodations as Nickey provided multiple forms to Snyder and they were all rejected.
Finally, Nickey avers that she could have been reasonably accommodated and that UPMC's argument is premised on a false statement. (Doc. 25, at 20). In contrast, UPMC submits that it could not have accommodated Nickey because she told Snyder she could not work. (Doc. 22, at 12). As noted supra, a genuine issue of material fact exists as to whether Nickey told Snyder that she could not work at all or if Nickey told Snyder that she wished to return to work. (Doc. 21-1, ¶ 47; Doc. 25-2, ¶ 47; Doc. 25-3, at 40). Additionally, Nickey had been working at a reduced schedule since 2016 without issue. (Doc. 25-2, ¶ 7; Doc. 25-3, at 47). Therefore, there is an issue of fact as to whether she could have been reasonably accommodated by working a reduced schedule. See Wilson v. Mount Airy #1, LLC, No. 3:15cv249, 2015 WL 8331869, at *6 (M.D. Pa. Dec. 9, 2015) (finding that the plaintiff satisfied his prima facie burden that he could have been reasonably accommodated when he had been able to have his proposed reasonable accommodation for the first year and a half of his employment).
The undersigned finds that the evidence presented by Nickey is sufficient for a reasonable juror to conclude that UPMC failed to accommodate her disability. Taylor, 184 F.3d at 319-20. Accordingly, it is recommended that summary judgment be denied as it pertains to Nickey's failure to accommodate claim.
E. Retaliation
UPMC also moves for summary judgment on Nickey's claim for retaliation. (Doc. 22, at 13). Nickey claims that she was terminated from her employment due to her disabilities and requests for reasonable accommodation. (Doc. 1, at 9). The ADA retaliation provision, 42 U.S.C. 12203(a), states that ‘[n]o person shall discriminate against any induvial because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge . . . under [the ADA].'” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). To establish a prima facie case of retaliation a plaintiff must demonstrate “(1) [a] protected employee activity; (2) [an] 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.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003). “Unlike a general ADA discrimination claim, an ADA retaliation claim does not require that the plaintiff demonstrate a disability within the meaning of the ADA, but only that the plaintiff had a reasonable good faith belief that he was entitled to request the reasonable accommodation he requested.” Payne v. Woods Services, Inc., 520 F.Supp.3d 670, 680 (E.D. Pa. 2021) (quoting Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 188 (3d Cir. 2010)). if the plaintiff can establish a prima facie case, the burden of production shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for its decision. McDonnell Douglas, 411 U.S. at 802. If the defendant meets this minimal burden, the plaintiff must point to evidence “that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action.” Krouse, 126 F.3d at 501.
1. Nickey's Prima Facie Case
Nickey claims that she engaged in a protected activity when she asked to return to work with her previous accommodations. (Doc. 25, at 26). UPMC contends that Nickey did not request to return to work but stated that she was unable to work. (Doc. 22, at 15). A request for accommodation is a protected activity. See Shellenberger, 318 F.3d at 191; Sulima, 602 F.3d at 188. The record contains evidence that Nickey made a good-faith request, as an accommodation, to return to work on a part-time basis. (Doc. 25-2, ¶ 47; Doc. 25-3, at 44). As such, Nickey engaged in a protected activity when she requested an accommodation to return to work part-time.
Nickey submits that she was subject to an adverse action after she sought an accommodation and was subsequently terminated from her employment. (Doc. 25, at 26). In the context of an ADA retaliation claim, an action is sufficiently adverse if it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Mercer, 26 F.Supp.3d at 447 (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 68 (2006)), aff'd sub nom. 608 Fed.Appx. 60 (3d Cir. 2015) (not precedential). Termination from employment would certainly be sufficient to dissuade a reasonable worker from making or supporting a charge of discrimination, or from requesting an accommodation. SeeBossi v. Bank of Am., No. 3:14-CV-02301, 2016 WL 4446444, at *3 (M.D. Pa. Aug. 19, 2016) (citing Thompson v. Ass'n of Pa. State Coll. and Univ. Faculties, No. 1-04-0317, 2005 WL 2030475, at *4 (M.D. Pa. 2005) (noting that termination is an adverse employment action)); see also Doe v. Trianvle Doughnuts, LLC., 472 F.Supp.3d 115, 137 at n. 26 (E.D. Pa. 2020). It is undisputed that Nickey was terminated on November 9, 2018. (Doc. 21-2, at 77). Accordingly, the undersigned finds that Nickey produced sufficient evidence to show that UPMC took an adverse action against her by terminating her employment.
The third and final element of a prima facie case of retaliation is a causal connection between the accommodation request and her termination. Krouse, 126 F.3d at 500. A causation analysis often, but not exclusively, rests on two key factors: “(1) the temporal proximity between the protected activity and the alleged retaliation and (2) the existence of any pattern of antagonism in the intervening period.” Jensen v. Potter, 435 F.3d 444, 450 (3d Cir. 2006) (internal quotations omitted). “The Court measures temporal proximity from the date on which the litigant engaged in his first protect[ed] action.” Gairloch v. Pennsylvania State Univ., 84 F.Supp.3d 407, 418 (M.D. Pa. 2015). “Timing alone raises the requisite inference when it is ‘unusually suggestive of retaliatory motive,' but even if ‘temporal proximity . . . is missing, courts may look to the intervening period for other evidence of retaliatory animus.'” Jensen, 435 F.3d at 450 (quoting Krouse, 126 F.3d at 503-04). In the absence of unusually suggestive temporal proximity or a pattern of antagonism, courts “consider all of the proffered evidence as a whole to determine whether it may suffice to raise the inference” of causation. Straka v. Comcast Cable, 897 F.Supp.2d 346, 367 (W.D. Pa. 2012) (quotation omitted); see also Farrell, 206 F.3d at 280-81 (“Although timing and ongoing antagonism have often been the basis for the causal link, our case law clearly has allowed a plaintiff to substantiate a causal connection for purposes of the prima facie case through other types of circumstantial evidence that support the inference.”). Regardless of the evidence a plaintiff relies on to establish causation, however, a plaintiff must also satisfy an initial gateway requirement by establishing that the defendant knew of the plaintiff's protected activity. See Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002) (“It is only intuitive that for protected conduct to be a substantial or motiving factor in a decision, the decisionmakers must be aware of the protected conduct.”).
Nickey states that she was terminated from her position on November 9, 2018. (Doc. 212, at 77; Doc. 25, at 26). On November 7, 2018, two days prior to her termination, she asked Snyder if she could return to work with the previous restriction of a part-time schedule. (Doc. 25, at 26; Doc. 25-3, at 44). The period between Nickey's request to return to work with accommodations and her termination is within the length of time that is generally held to be unusually suggestive of temporal proximity. See Blakney, 559 F. App'x. at 186 (“We have found that a temporal proximity of two days is unusually suggestive of causation.”) (citations omitted)); Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (finding temporal proximity not unduly suggestive where three weeks elapsed between the protected activity and the adverse employment action); Kier v. F. Lackland & Sons, LLC, No. CIV.A. 14-897, 2014 WL 7192403, at *17 (E.D. Pa. Dec. 17, 2014) (“Absent some intervening antagonism, Plaintiff cannot rest solely on a temporal proximity of more than one week.”); Abdul-Latif, 990 F.Supp.2d at 531 (“[S]ix days is at the long end of what has been held to be unusually suggestive....”). Unlike her claim for disparate treatment, discussed supra, Nickey demonstrates a question of material fact regarding the causal connection between her request for accommodation to return to work and the adverse action of her termination due to the temporal proximity of the two events.
Accordingly, the undersigned finds that the record establishes that Nickey has made out a prima facie claim of retaliation against UPMC.
2. UPMC's Legitimate Nondiscriminatory Reason for Termination
Next, the undersigned turns to whether UPMC has proffered a legitimate nondiscriminatory reason for Nickey's termination. See McDonnell Douglas, 411 U.S. at 802. As discussed supra, UPMC has offered a non-discriminatory reason for its adverse action. UPMC has presented evidence showing that Nickey failed to provide the necessary forms to demonstrate that she could perform the essential functions of her job with or without accommodations and told Snyder on November 7, 2018, that she was unable to perform work of any kind due to her inability to concentrate. (Doc. 21-1, ¶¶ 26, 46-48; Doc. 22, at 8; Doc. 251, ¶¶ 26, 47-49). UPMC contends that Nickey's statements regarding her inability to work were the cause for her termination. (Doc. 26, at 11-12). The Court is satisfied that UPMC has met its limited burden of “articulation” by offering that Snyder made the decision to terminate Nickey because she believed Nickey was unable to work. This evidence demonstrates that UPMC had a legitimate, nondiscriminatory reason for terminating Nickey's employment.
3. Disbelief of Articulated Legitimate Reason
However, Nickey has presented some evidence from which a factfinder could question UPMC's presented nondiscriminatory reason. “[T]he 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.” Krouse, 126 F.3d at 501 (citing Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997)); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993) (“It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.”) (emphasis omitted); Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067-68 (3d Cir. 1996) (en banc) (explaining how plaintiff may satisfy burden), cert. denied, 521 U.S. 1129 (1997). Further, “[t]he plaintiff must prove that retaliatory animus played a role in the employer's decisionmaking process and that it had a determinative effect on the outcome of that process.” Krouse, 126 F.3d at 501 (citing Woodson, 109 F.3d at 931-35 (discussing proper standard to apply in Title VII retaliation case)). This can be done by demonstrating “such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.'” Fuentes, 32 F.3d at 765 (emphasis omitted) (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1993)).
Nickey has presented evidence that she indicated that she was able to work and that she provided a variety of forms to UPMC at its request. Nickey states that she did not tell Snyder that she was unable to work, but that she was available and that she wanted to come back to work. (Doc. 25-2, at ¶ 47; Doc. 25-3, at 44, 47). Nickey also specified in her deposition that Snyder was the one that told her that she could not return to work with restrictions. (Doc. 25-2, ¶ 47; Doc. 25-3, at 44, 47). Further, Nickey presents multiple documents that were provided by her physician at UPMC's request. (Doc. 25-3, at 144, 146). Nickey was asked by UPMC to provide a certification of a health care provider for personal leave. (Doc. 21-1, ¶ 26; Doc. 25-2, ¶ 26). Nickey contends that the form indicated that she was estimated to miss two days per week and that she would be incapacitated from “winter 2017 present.” (Doc. 25-3, at 33-34, 144). The form also indicated that Nickey could work while she was incapacitated. (Doc. 25-3, at 144). UPMC argues that the form indicates that Nickey could only work two days per week and that the duration of Nickey's restrictions was from winter 2017 to the present date ending on August 6, 2018. (Doc. 21-1, ¶¶ 27-28; Doc. 21-2, at 57-58). Snyder stated that Nickey's form was deficient and provided a new letter and form to be completed by her physician. (Doc. 21-1, ¶ 30; Doc. 25-2, ¶ 30). Nickey contends that Dr. Wellmon filled out the form multiple times, and each time, Snyder rejected the completed form. (Doc. 25-2, ¶ 31; Doc. 25-3, at 34). In the form dated October 17, 2018, Dr. Wellmon indicated that he is not Nickey's treating physician for fibromyalgia, but that Dr. Clawson was Nickey's treating physician for this condition. (Doc. 253, at 146). The form indicates that Dr. Wellmon attached records from Dr. Clawson including a progress note. (Doc. 25-3, at 146). However, Snyder still rejected the completed form and contends that the form was not completed correctly as Dr. Clawson was not Nickey's treating physician and that the records did not clarify the dates of Nickey's inability to perform her job. (Doc. 21-1, ¶¶ 42-43). As Nickey has demonstrated facts that call into question UPMC's interpretation and subsequent rejection of the required forms along with her desire to return to work, she has provided evidence for a reasonable juror to conclude that UPMC retaliated against her due to her request for accommodation.
Accordingly, it is recommended that the Court deny summary judgment as to Nickey's retaliation claim.
F. PHRA Discrimination and Retaliation
Nickey alleges the same issues under the PHRA as she advances under the ADA. Nickey's PHRA claim for disparate treatment shall be dismissed and her claims for failure to accommodate and retaliation shall not be dismissed on summary judgment due to the reasons stated supra. The Court's “analysis of an ADA claim applies equally to a PHRA claim.” Taylor, 184 F.3d at 306. “While the Pennsylvania courts are not bound in their interpretation of Pennsylvania law by federal interpretation of parallel provisions in Title Vii, the ADA, or the ADEA, its courts nevertheless generally interpret the PHRA in accord with its federal counterparts.” Kelly v. Drexel U., 94 F.3d 102, 105 (3d Cir. 1996) (internal citations omitted).
Therefore, the undersigned finds that Nickey has alleged an issue of material fact as to her claims for failure to accommodate and retaliation under the PHRA and has not alleged an issue of material fact as to her claim for disparate treatment. Thus, it is recommended that UPMC's motion for summary judgment regarding Nickey's PHRA claims be GRANTED in part and DENIED in part. (Doc. 21).
III. Recommendation
Based on the foregoing, it is respectfully recommended that UPMC's motion for summary judgment be GRANTED in part and DENIED in part. (Doc. 21). Specifically, it is recommended that UPMC's motion for summary judgment be granted as to Nickey's wrongful termination claims under the ADA and PHRA, but denied in all other respects.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 5, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.