with or without reasonable accommodation, can perform the
essential functions of the position held or sought."
Deane, 142 F.3d at 145 (citing 29 C.F.R. pt. 1630, app. §
1630.2(m)). Because the DOC does not dispute Hunter's general
qualifications as a corrections officer, the court will start
its analysis with the second step.
The DOC argues that Hunter failed to satisfy this second step
in two ways.*fn3 First, the DOC contends that Hunter failed to
perform certain essential functions of his job. Second, the DOC
asserts that Hunter's requested accommodation was unreasonable.
1. Essential Functions of Job
The DOC argues that Hunter cannot perform the essential
functions of his job with or without an accommodation. First,
the DOC contends that lifting at least fifty pounds is an
essential function of Hunter's job and that Hunter's lifting
restriction prevents him from performing this essential
function. Second, the DOC asserts that Hunter failed to perform
the essential function of job attendance because he did not
return to work after Dr. Barbara A. Shelton cleared him to
return in April 1994.
The DOC simply does not meet its burden of establishing the
absence of a genuine issue of material fact here. A genuine
issue of material fact exists as to whether lifting at least
fifty pounds is an essential job function because Hunter
introduced evidence that the generic essential job functions of
his job does not include a requirement of lifting at least
fifty pounds. See (Hunter's Resp. Opp'n Mot. Summ. J. Ex.
As for the DOC's second contention, although attendance may
be an essential function of Hunter's job, see Eible v. Houston,
No. CIV.A. 96-4655, 1998 WL 303692 at *3 (E.D.Pa. April 21,
1998) (noting that attendance is an essential function of
almost any job), Hunter's failure to return to work in April
1994 does not show that he failed to perform the function of
job attendance. Because the DOC continued to provide Hunter
with workers compensation benefits until April 1996, there is a
genuine issue of material fact as to when Hunter was able to
return to work. Therefore, the DOC cannot carry its burden.
2. Reasonableness of Accommodation Request
The DOC argues that Hunter's accommodation request was
unreasonable because of 1) Hunter's inability to perform the
essential functions of his job and 2) the terms of a collective
bargaining agreement. However, as mentioned earlier, Hunter's
inability to perform the essential functions of his job is a
genuine issue of material fact at least in regard to
determining the essential functions of his job. Moreover, the
DOC failed to cite to any provision of a purported collective
bargaining agreement to support the contention that the
agreement would make Hunter's request unreasonable. Therefore,
the DOC again failed to satisfy its burden.
C. Adverse Employment Action
The third and last element of the prima facie case requires
the plaintiff to show he suffered an adverse employment action.
See Deane, 142 F.3d at 149. The U.S. Court of Appeals for the
Third Circuit in Deane found that a phone call terminating the
plaintiff because of her handicap was uncontroverted direct
evidence that she suffered an adverse employment action. See
Id. Similarly, the DOC's letter
threatening to terminate Hunter, the subsequent actions of Ann
Uhl to assist Hunter's application for disability retirement
benefits and Hunter's resignation letter expressing his
reservations about retirement show that Hunter may have
suffered an adverse employment action. Therefore, the DOC
failed to demonstrate the absence of a genuine issue of
material fact here.
II. Pendent State Law Claims
The DOC also argues that the court lacks subject matter
jurisdiction over Hunter's state claims because of the
Rooker-Feldman doctrine and the 11th Amendment. Since Hunter
did not respond to this portion of the DOC's motion, the court
can only assume, after reviewing the complaint, that Hunter is
seeking to relitigate the termination of his benefits under
Pennsylvania's Workers' Compensation Act and Heart and Lung
Act. That being so, the Rooker-Feldman doctrine prevents the
court from hearing the state statutory claims. See Whiteford v.
Reed, 155 F.3d 671, 673-74 (3d Cir. 1998) (stating that lower
federal courts may not sit in direct review of the decisions of
a state tribunal).
Additionally, the 11th Amendment bars the court from
considering these state statutory claims and also the
intentional infliction of emotional distress claim. The 11th
Amendment immunizes states and their agencies from a private
citizen's suit in federal court. See Wilson v. Vaughn, No.
CIV.A. 93-CV-6020, 1996 WL 426538 at *1 (E.D.Pa. July 30,
1996). Since Pennsylvania has not waived this immunity, see 42
Pa. Cons.Stat.Ann. § 8521(b) (1998), Hunter's state claims are
barred and will be dismissed without prejudice.