The opinion of the court was delivered by: CYNTHIA RUFE, District Judge
MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Jozy J. Merit alleges that her former employer,
Defendant Southeastern Pennsylvania Transportation Authority
("SEPTA"),*fn1 discriminated and retaliated against her in violation of
the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, 12203,
and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. §
951 et seq. Presently before the Court is SEPTA's Motion for Summary
Judgment. For the reasons below, SEPTA's Motion is granted.
SEPTA hired Plaintiff as a Vehicle Equipment General Helper on November
25, 1991. In June 1992, Plaintiff was laid off, but on April 12, 1993,
SEPTA rehired her as a Vehicle and Equipment Mechanic, 3rd Class. On
April 24, 1994, Plaintiff injured her back while cleaning the inside of a
bus. After her injury Plaintiff filed two complaints with SEPTA's Equal
Employment Opportunity/Affirmative Action ("EEO/AA") office claiming SEPTA
discriminated against her and harassed her on the basis of her gender
while working at SEPTA's Callowhill Depot. The ultimate disposition of
these complaints is unclear from the record.
Plaintiff collected workers' compensation benefits from April 1994
until October 1999. On October 4, 1999, pursuant to its Alternative Duty
Program,*fn2 SEPTA offered and Plaintiff accepted a light-duty position
working as a cashier on the "Market Frankford El" train line.
In addition to her back injury, Plaintiff suffers from asthma and
migraine headaches. The cashier position required that Plaintiff work in
an enclosed, unventilated cashier booth. Contrary to SEPTA rules, some
employees smoked cigarettes in the cashier booth, and for reasons not
apparent on the record, SEPTA was unable to prevent this recalcitrant
conduct. The secondhand smoke aggravated Plaintiff's asthma, causing her
to become nauseous and to cough violently, and sometimes triggered
migraine headaches. When Plaintiff attempted to open the door to the
booth or step outside to get fresh air, her supervisor told her to stop
or she would be fired. On May 18, 2000, Plaintiff grieved these
conditions in a complaint filed with SEPTA's EEO/AA office. She
subsequently withdrew the complaint.
On June 20, 2000, Plaintiff submitted a medical note from her doctor to
SEPTA's Medical Department stating that Plaintiff was unable to work
under these conditions because cigarette smoke and chemical odors
triggered her asthma and migraines. In response, SEPTA medically
disqualified Plaintiff from working as a cashier. On June 21, 2000, SEPTA
offered and Plaintiff accepted another light-duty position working as a Vehicle Readiness
Coordinator ("VRC") in the Bus Operations Division.
In July 2000, Plaintiff began working as a VRC at SEPTA's Comly
District Maintenance Shop. Plaintiff accepted the VRC position in part
because it was close to her home and was "double-shifted," meaning
Plaintiff worked alongside another SEPTA employee who shared her duties
and could assist Plaintiff if she had a problem related to her physical
limitations. The VRC position also required Plaintiff to work in an
enclosed booth, known as a "blockers booth," but unlike the cashier
booth, the blockers booth was above ground and had some ventilation.
Despite instructions to the contrary from SEPTA's Director of
Maintenance at Comly, William Cook, SEPTA employees smoked cigarettes in
the Comly blockers booth, which aggravated Plaintiff's asthma and
migraine headaches. At some point, one employee ("Phil") posted on the
wall of the blockers booth a note stating:
Just as you have a right to file a complaint so do I
about how you do not clean the booth, do not turn in
all your paper work and destroy SEPTA property by
writing on the windows and wall. You expect us to
stand out in the cold to smoke, just like you tried on
Market Street. We heard about your little notes. I
plan to smoke but not in the cold while you are not
here and if it stinks bring air freshners with you. We
all have rights also. Do your job right first before
threatening someone. Only a few more weeks until the
picking so you can pick elsewhere. Phil.
(errors in original).
In September and October 2000, Plaintiff requested certain job
modifications to accommodate her back injury. First, Plaintiff began
using a reaching/grabbing device while performing her duties. Other VRCs
stood inside the blockers booth and reached up to passing buses to
collect "trouble cards" from bus drivers. Raising her arms over shoulder
height aggravated Plaintiff's back injury, so she fashioned and utilized a reaching
device (consisting of a clothespin affixed to a stick) to retrieve the
cards. Mr. Cook instructed her not to use the reaching device. If she was
unable to reach up, he told her, she should come out of the blockers
booth as a bus enters the facility and walk around the bus to collect the
card from the bus driver. Failure to comply with these directives, Mr.
Cook said, would result in her termination. A TWU representative also
instructed Plaintiff not to use the reaching device.
Plaintiff complained that coming out of the blockers booth to collect
the form would require that she frequently go up and down the steps
leading to the booth, which also aggravated her back injury. Accordingly,
Plaintiff requested that a chair be placed outside the blockers booth for
her use. (This request also may have been an effort to avoid cigarette
smoke in the blockers booth.) Plaintiff's supervisor, Sandy Johnson, and
Mr. Cook both denied this request. When Plaintiff sat on the ground
outside the blockers booth, Mr. Cook and Ms. Johnson told her she was not
allowed to sit outside the booth and would be fired if she persisted.
Finally, Plaintiff requested that she be excused from SEPTA's
requirement that VRCs wear steel-tipped boots, whose added weight
aggravated her back injury. On at least one occasion Plaintiffs
supervisor cited her for wearing improper footwear (sandals). Plaintiff
contends that no other SEPTA employees were required to wear steel-tipped
boots, and that SEPTA singled her out in order to harass her.
Plaintiff claims that SEPTA denied her requests for these "reasonable
accommodations," and that SEPTA retaliated against her by changing the
work schedule so that Plaintiff was no longer double-shifted. Believing
that she was the subject of harassment and retaliation, Plaintiff
requested that SEPTA transfer her to another position, but no positions
were available. In September or October 2000, Plaintiff spoke with Ms.
Melica Blige in SEPTA's EEO/AA office and complained about harassment,
intimidation and retaliatory changes to her work duties, and asked for
accommodations for her physical limitations. After complaining to other
SEPTA offices as well, Plaintiff learned that she could submit her work
modification requests, along with a note from her doctor, at SEPTA's
monthly meetings concerning job modifications. Plaintiff also complained
to Ms. Johnson and Mr. Cook that she was subject to discrimination and
retaliation as a result of her complaints and requests for accommodation,
but it is not clear when she spoke with them.
On October 13, 2000, Plaintiff saw Dr. Barry Schnall to discuss her
physical limitations and their impact on her ability to perform her
duties as a VRC. Dr. Schnall concluded that he could not justify taking
her out of her position based on its physical demands. However, he opined
that Plaintiff could better perform her duties with some reasonable
changes in the conditions of Plaintiff's job, including use of the
reaching device, a chair outside the blockers booth, and an exemption
from wearing steel-tip boots. Dr. Schnall also provided Plaintiff with a
note expressing his view that SEPTA should permit these accommodations.
By this time, however, it was too late to submit Dr. Schnall's note for
the October meeting. Plaintiff was never informed of the November meeting
date, and in any event SEPTA fired her before she could have submitted
On October 25, 2000, in response to an internal SEPTA posting,
Plaintiff applied for a position as a maintenance manager. Plaintiff was
told she would be interviewed within the next five weeks. On November 6, 2000, Plaintiff was working in the blockers booth
alongside her foreperson, Ms. Johnson. Plaintiff alleges that Ms.
Johnson, in retaliation for Plaintiff's repeated requests for
accommodations, started smoking cigarettes in the booth with the door and
windows closed. Plaintiff began to experience a migraine headache, the
left side of her face became numb, and she became concerned that an
asthma attack might ensue. Plaintiff requested an injured-on-duty ("IOD")
report from Ms. Johnson and Michael E. Himes, another SEPTA maintenance
foreperson, explaining that she had swollen blood vessels in her head.
Plaintiff stated that she expected to be out of work for two to three
weeks. Mr. Himes told Plaintiff she was describing a sickness, not an
injury. Plaintiff received the IOD form but Mr. Himes and Ms. Johnson
refused to sign it. Plaintiff took an Imitrex pill, one of her prescribed
medications for alleviating migraine headaches, and asked Mr. Himes to
call for medical assistance. Emergency personnel transported Plaintiff to
the hospital, but she received no medical treatment.
The next day, November 7, 2000, Plaintiff called out sick from work.
Cowanis Duckett, Mr. Cook's successor as SEPTA's Director of Maintenance,
directed Plaintiff via letter to report to SEPTA's Medical Department on
November 13, 2000 for a physical examination. Mr. Duckett instructed
Plaintiff to bring with her a report from her doctor outlining the nature
of her illness and the length of time it was anticipated she would be out
of work. Plaintiff met with Dr. Richard Press, SEPTA's Medical Director,
as scheduled but failed to bring any documentation from her own doctor.
Dr. Press cleared Plaintiff to return to work.
On November 18, 2000, Paul [last name illegible], Plaintiff's
supervisor, reported Plaintiff for causing "service interruptions." Based
on Paul's account, Plaintiff submitted an IOD form claiming she was
injured by chemicals in cigarette smoke. Plaintiff apparently remained at
work because a half-hour later she told Paul there would be delays in
servicing the buses due to inadequate "prep time." She further explained
that several bus engines would not start, but upon Paul's inquiry could
not identify the inoperative buses. When questioned about other available
buses, Plaintiff stated that those buses lacked working radios. Paul
directed the drivers to use the buses anyway, but then Plaintiff told the
drivers not to use the buses. Plaintiff also told Paul that another bus
was blocked by a parked car. Upon investigation, Paul found that no buses
were blocked by a parked car. A "street supervisor" eventually intervened
and assisted Paul in getting the buses out of the depot on schedule. Paul
concluded that "this all happened intentionally because of spite by J.
Merit for the Authority and her fellow employees."*fn4 This incident
gave rise to Plaintiff's sixth disciplinary citation in less than four
On November 19, 2000, Mr. Duckett informed Plaintiff and another VRC
working at Comly, Madelaine Caldwell, that they would be transferred
temporarily to work at SEPT A's Frontier District on November 24, 2000.
Plaintiff was not familiar with the Frontier District location, but after
traveling there the next day, Plaintiff told Mr. Duckett that the commute
was too long given her physical limitations. Specifically, she complained
that commuting to the Frontier District added six to eight hours to her
workday, and that the frequent stops and starts (i.e.. "jerking") during
the long ride would aggravate her back injury. She also told Mr. Duckett
that she believed SEPTA was transferring her in retaliation for seeking
disability accommodations. Plaintiff requested that she be permitted to
work at a location closer to her home. In response, Mr. Duckett
instructed Plaintiff to report to SEPTA's Medical Department for another
Dr. Press re-evaluated Plaintiff on November 22, 2000. Plaintiff did
not bring any medical documentation or a note from her doctor regarding her ability to
travel to the Frontier District. She told Dr. Press that the commute to
the Frontier District was too long and asked him to approve a location
accommodation. Dr. Press refused, saying she should take the issue up
with management and that "work location assignments are not a Medical
Dept matter."*fn5 Dr. Press cleared Plaintiff to work as a VRC at the
Frontier District and reminded her that refusing to report for duty is a
Immediately thereafter Plaintiff was directed to meet with John
Jamison, SEPT A's labor relations manager. Even though she complained
that the lengthy commute would aggravate her physical conditions, Mr.
Jamison told Plaintiff that she must report to the Frontier District on
November 24, 2000, and that the transfer could last for a few days or a
few months. If she was not feeling well, Mr. Jamison told her, "you can
always call out sick, but you have to go to Frontier."*fn6 Mr. Jamison
then called William Bethel, SEPTA's Director of Maintenance at the
Frontier District, and told him that Plaintiff would likely attempt to
call out sick rather than report to work on November 24, 2000. He
suggested that in those circumstances Mr. Bethel should give Plaintiff a
"direct order" to report to SEPTA's Medical Department.*fn7
Just as Mr. Jamison predicted, Plaintiff did not report to the Frontier
District on November 24, 2000. Instead, she called the maintenance
manager at Frontier, Larry Marsaglia, and asked him to enter her name in
the "sick book." Pursuant to previous instructions from Mr. Bethel, Mr.
Marsaglia refused to enter Plaintiff's name in the sick book and instead
gave her a direct order to report to SEPTA's Medical Department. Plaintiff told Mr. Marsaglia
that she was too sick to travel to the Medical Department.*fn8
Plaintiff then contacted a foreman working at Comly and asked him to
enter her name in the sick book. He agreed to do so, although he reminded
Plaintiff that she was no longer assigned to Comly. In addition,
Plaintiff contacted a TWU representative and asked that TWU file a
grievance on her behalf regarding Mr. Marsaglia's refusal to enter
Plaintiff's name in the sick book. Finally, Plaintiff contacted SEPTA's
EEO/AA office and Linda Yoxtheimer, SEPTA's Assistant Director of
Vocational Rehabilitation, to complain that the transfer to Frontier ...