United States District Court, W.D. Pennsylvania
November 21, 2005.
LISA J. O'HARA, Plaintiff,
FIRST COMMONWEALTH PROFESSIONAL RESOURCES, INC., t/d/b/a FIRST COMMONWEALTH FINANCIAL CORPORATION, Defendant.
The opinion of the court was delivered by: TERRENCE McVERRY, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court for disposition are Defendant's MOTION FOR
SUMMARY JUDGMENT (Document No. 24), with brief in support
(Document No. 25) ("Motion" and "Brief," respectively), and
PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT (Document No. 29) ("Response"). After considering the
filings of the parties, the evidence of record and the relevant
statutory and case law, Defendant's Motion for Summary Judgment
will be granted in part and denied in part.
Plaintiff Lisa J. O'Hara ("O'Hara") began to work for defendant
First Commonwealth Professional Resources, Inc. ("FCPR") on
October 9, 2000. Def's Stmt. of Facts at ¶ 1. O'Hara was
subsequently promoted to Vice President and Manager,
Organizational Learning. Id. at ¶ 2. Upon her promotion O'Hara
reported to Thaddeus Clements ("Clements"), Senior Vice President
of Human Resources, who was instrumental in promoting her. Id.
at ¶ 3.
On September 27, 2002, Plaintiff slipped and fell on wet steps
as she was leaving work; the fall injured her left leg, ankle and
foot. Id. at ¶ 5. Due to her injuries, Plaintiff was unable to
work. Id. Shortly after her injury occurred, Plaintiff began to
receive workers' compensation benefits, which Defendant did not
contest. Id. at ¶¶ 6-7.
As a result of the fall and injury, Plaintiff developed Reflex
Sympathetic Dystrophy Syndrome ("RSDS"), for which she underwent
sympathetic nerve block procedures. Pltf's Stmt of Facts at ¶ 10. RSDS "is a chronic, painful, and progressive
neurological condition that affects skin, muscles, joints and
bones," and "usually develops in an injured limb, such as a
broken leg, or following surgery." Id. at ¶ 11. The condition
"is characterized by various degrees of burning pain, excessive
sweating, swelling, and sensitivity to touch," and "[p]ain may
begin in one area or limb and then spread to other limbs." Id.
at ¶ 12. According to Plaintiff's affidavit, her leg is
"constantly in pain," is "extremely sensitive to touch and
temperature changes," is "generally cold but also develops hot
spots," and "chills for no reason." O'Hara aff. at ¶¶ 2-5. RSDS
limits Plaintiff's ability to regulate her body temperature,
walk, climb, crouch, stoop, bend and kneel, and it limits the
amount of time that she can sit and stand during the day. Pltf's
Stmt of Facts at ¶ 14. To combat the symptoms of RSDS, Plaintiff
takes medication; the medication reduces the symptoms, but does
not remove the condition. Id. at ¶ 15.
Plaintiff is required by her doctor to wear a brace on her left
leg. Id. at ¶ 19. When pain prevents her from wearing her
brace, Plaintiff uses a cane to walk. Id. at ¶ 21. If Plaintiff
must go up and down stairs, she must move sideways. Id.
Additionally, when walking Plaintiff has difficulty judging
distance with her foot because it feels like it is not there,
which causes her to trip. Id. Finally, Plaintiff's ankle is
very unstable, cannot be moved independently, and occasionally
goes numb. Id. at ¶ 20.
Plaintiff initially began treating with Dr. David Bizowski but
discontinued treating with him after three months because she
felt that her condition was not improving. Def's Stmt. of Facts
at ¶ 10. Plaintiff then began treating with Dr. Carl Hasselman.
Id. On February 24, 2003, Dr. Hasselman released Plaintiff to
return to work with restrictions; however, Plaintiff was not
informed that she was released to return to work until early
March. Id. at ¶ 13; Pltf's Stmt of Facts at ¶ 47. Specifically,
Plaintiff is not to sit for more than eight (8) hours, stand for
more than one (1) hour at a time for a total of four (4) hours,
or walk for more than thirty (30) minutes at a time for more than
two (2) hours a day. Pltf's Stmt of Facts at ¶ 48. Additionally,
Dr. Hasselman recommended that Plaintiff not carry any weight,
climb stairs, stoop, bend, kneel, crouch or squat. Id.
Prior to her return to work, Plaintiff spoke with Sharon
Twaddle, Defendant's workers' compensation liaison in its Human Relations Department, who told
her to contact Clements regarding the accommodations that
Plaintiff would need to return to work. Pltf's Stmt of Facts at ¶
50. On March 10, 2003, Plaintiff called Clements to request
accommodations. Id. at ¶ 51. During their conversation,
Plaintiff informed Clements of the specific restrictions set
forth by Dr. Hasselman and reviewed the restriction sheet
line-by-line. Id. at ¶¶ 52-53. Clements responded by asserting
that Plaintiff never performed any of the tasks outlined in Dr.
Hasselman's restrictions. Id. at ¶ 54.*fn1
Plaintiff and Clements had another conversation regarding
Plaintiff's accommodations the next day. O'Hara dep. at 97. What
occurred during the conversation is in dispute. Plaintiff
contends that when she broached the subject of accommodations,
Clements became angry and reiterated his position that Plaintiff
never performed any of the tasks outlined in Dr. Hasselman's
restrictions. Id. at 98, 100. Plaintiff told Clements that it
appeared as if he was having a problem with her disability, and
that she would be hanging up the phone shortly. Id. at 101-02.
After telling Clements that she would be hanging up the phone
three times, Plaintiff ended the call. Id. at 102-03. The next
day, on March 12, 2003, Clements sent Plaintiff a letter
informing her that she was terminated as of March 11, 2003 due to
disrespectful, uncooperative and unprofessional behavior. Def's
Stmt. of Facts at ¶ 29.
O'Hara filed an Amended Complaint in which she has alleged
unlawful retaliation,*fn2 disability discrimination and
failure to accommodate,*fn3 in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq., as amended
("ADA"), tortious discharge,*fn4 and violations of the Pennsylvania Human Relations Act,
43 Pa. C.S.A. § 951 et seq. ("PHRA").*fn5 Defendant has moved for
summary judgment on all counts of the Amended Complaint.
Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure reads, in
pertinent part, as follows:
[Summary Judgment] shall be rendered forthwith 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 judgment as a matter of law.
An issue of material fact is genuine only if the evidence is
such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242
, 248 (1986). The court must view the facts in a light most
favorable to the non-moving party, and the burden of establishing
that no genuine issue of material fact exists rests with the
movant. Celotex, 477 U.S. at 323. The "existence of disputed
issues of material fact should be ascertained by resolving all
inferences, doubts and issues of credibility against the moving
party." Ely v. Hall's Motor Transit Co., 590 F.2d 62
, 66 (3d
Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co.,
464 F.2d 870
, 874 (3d Cir. 1972)). Final credibility determinations
on material issues cannot be made in the context of a motion for
summary judgment, nor can the district court weigh the evidence.
Josey v. John R. Hollingsworth Corp., 996 F.2d 632
When the non-moving party will bear the burden of proof at
trial, the moving party's burden can be "discharged by `showing'
that is, pointing out to the District Court that there is an
absence of evidence to support the non-moving party's case."
Celotex, 477 U.S. at 325. If the moving party has carried this
burden, the burden shifts to the non-moving party who cannot rest
on the allegations of the pleadings and must "do more than simply
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). When the non-moving party's evidence in
opposition to a properly supported motion for summary judgment is "merely colorable" or
"not significantly probative," the court may grant summary
judgment. Anderson, 477 U.S. at 249-50. However, a party which
opposes summary judgment must do more than rest upon mere
allegations, suspicions, general denials, and vague statements.
In federal employment discrimination cases, the familiar
McDonnell Douglas*fn6 formulation regarding the
appropriate burdens of proof and allocation of production of
evidence govern and guide the analysis of the evidence presented
on a motion for summary judgment. Under McDonnell Douglas, the
plaintiff must establish a prima facie case of discrimination;
if this burden is met, the defendant must then articulate some
legitimate, nondiscriminatory reason for the employee's
treatment. McDonnell Douglas, 411 U.S. at 802. If the defendant
articulates a legitimate, nondiscriminatory reason for the
employee's treatment, then the plaintiff must demonstrate that
the defendant's stated reasons were a pretext for discrimination.
Id. at 804. The prima facie case under McDonnell Douglas
"is not intended to be onerous." Sempier v. Johnson & Higgins,
45 F.3d 724, 728 (3d Cir.), cert. denied, 515 U.S. 1159 (1995).
The prima facie case raises an inference of discrimination
because the courts presume that the challenged acts, if otherwise
unexplained, are "more likely than not based on the consideration
of impermissible factors." Id.
A. Unlawful Retaliation in Violation of the ADA and PHRA
(Counts I & IV)*fn7
In Count I of the Amended Complaint Plaintiff alleges that
"Defendant fired O'Hara in retaliation for requesting a
reasonable accommodation under the ADA . . ." Amended Complaint at ¶ 14. To establish a prima facie case of retaliation under
the ADA, a plaintiff must show "(1) protected employee activity;
(2) adverse action by the employer either after or
contemporaneous with the employee's protected activity; and (3) a
causal connection between the employee's protected activity and
the employer's adverse action." Krouse v. American Sterilizer
Co., 126 F.3d 494, 500 (3d Cir. 1997); see also Shaner v.
Synthes, 204 F.3d 494, 500 (3d Cir. 2000).*fn8
It is clear that Plaintiff's request for accommodations
constitutes protected activity, and that Plaintiff suffered an
adverse employment action after the request for accommodations.
Moreover, Plaintiff's version of what took place during and after
her request for accommodations, when viewed in the light most
favorable to her, is sufficient for a fact finder to find a
causal connection between her request for accommodations and her
termination. Therefore, the Court finds and rules that Plaintiff
has established a prima facie case of retaliation under the
ADA. Finally, although Defendant has proffered legitimate,
nondiscriminatory reasons for its termination of Plaintiff
(i.e., Plaintiff's allegedly disrespectful, uncooperative and
unprofessional behavior), the Court finds and rules that
Plaintiff has demonstrated genuine issues of material fact,
i.e., "such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered
legitimate reasons for its action that a reasonable factfinder
could rationally find them `unworthy of credence,' and hence
infer `that the employer did not act for [the asserted]
non-discriminatory reasons.'" Fuentes v. Perskie, 32 F.3d 759,
764-65 (3d Cir. 1994). For example, despite telling Plaintiff
that her employment was terminated due to her allegedly
disrespectful, uncooperative and unprofessional behavior, there
is evidence that Clements believed that he needed to fire
Plaintiff "to get the department functioning the way it needed to
function," and there is other evidence which indicates that
Plaintiff was fired for "personal reasons." See Pltf's Stmt of
Facts at ¶¶ 109-127. These inconsistencies, as well as others,
suffice to create a genuine issue of material fact as to whether
Defendant retaliated against Plaintiff. Therefore, the Court will
deny Defendant's Motion for Summary Judgment as to Plaintiff's ADA and PHRA retaliation claims.
B. Disability Discrimination and Failure to Accommodate
(Counts II & IV)*fn9
1. Disability Discrimination*fn10
Count II of the Amended Complaint alleges that "O'Hara is
disabled within the meaning of the [ADA] in that she is
substantially limited from performing a major life activity; she
has a history of such a disability and Defendant perceives O'Hara
as being substantially limited from performing a major life
activity." Amended Complaint at ¶ 19. The Amended Complaint also
alleges that "Defendant fired O'Hara because of her disability,
in violation of 42 U.S.C. § 12112(a)." Id. at ¶ 21. A plaintiff
establishes a prima facie case of discrimination under the ADA
by demonstrating: (1) she is a disabled person within the meaning
of the ADA, i.e., a "qualified individual with a
disability";*fn11 (2) she is otherwise qualified to perform
the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) she has suffered an
otherwise adverse employment decision as a result of
discrimination. Gaul v. Lucent Technologies, Inc.,
134 F.3d 576, 580 (3d Cir. 1998) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)).
Defendant argues that Plaintiff's discrimination claim must
fail because she does not have a "disability" under the ADA, as
defined by 42 U.S.C. § 12102(2). Def's Br. at 8. Under the ADA, a
(A) a physical*fn12 or mental impairment that
substantially limits one or more of the major life
activities of such individual;
(B) a record of such impairment;*fn13 or
(C) being regarded as having such impairment.
42 U.S.C. § 12102(2); Toyota Motor Mfg., Kentucky, Inc. v.
Williams, 534 U.S. 184
, 193 (2002).
The ADA does not specifically define "major life activities."
However, the EEOC regulations define the term as those activities
that are of "central importance to most people's daily lives."
45 C.F.R. § 84.3(j)(2)(ii); Toyota Motor, 534 U.S. at 197. This
means "functions such as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning
and working." 45 C.F.R. § 84.3(j)(2)(ii). The Court of Appeals
for the Third Circuit has "held only extremely limiting
disabilities in either short or long-term to qualify for
protected status under the ADA." Marinelli v. City of Erie,
Pennsyvlania, 216 F.3d 354, 362 (3d Cir. 2000).
a. Whether Plaintiff is Actually Disabled?
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the
United States Supreme Court stated that under the ADA:
A "disability" exists only where an impairment
"substantially limits" a major life activity, not
where it "might," "could," or "would" be
substantially limiting if mitigating measures were
not taken. A person whose physical or mental impairment is corrected by medication or other
measures does not have an impairment that presently
"substantially limits" a major life activity. To be
sure, a person whose physical or mental impairment is
corrected by mitigating measures, still has an
impairment, but if the impairment is corrected it
does not "substantially limi[t]" a major life
Id. at 482-83 (emphasis added).
The Court of Appeals for the Third Circuit has also given
direction on whether an impairment "substantially limits" a major
life activity: "[An] impairment must not only affect the way in
which the plaintiff engaged in [a major life activity]. . . . To
the contrary, a plaintiff must establish that the impairment
substantially limits the ability to engage in the activity."
Marinelli, 216 F.3d at 361 (emphasis in original). For example,
in Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 186-87 (3d
Cir. 1999), our appellate court found that a plaintiff who could
stand or walk for only fifty minutes at a time was not disabled
under the ADA. Similarly, in Kelly v. Drexel University,
94 F.3d 102, 108 (3d Cir. 1996), the court of appeals found that a
plaintiff who had a hip fracture and noticeable limp, and could
not walk more than a mile without stopping, had a "comparatively
moderate restriction  on the ability to walk" and, therefore,
had no disability.
Plaintiff contends that RSDS substantially limits her ability
to walk because she cannot feel her leg, because she is required
by her doctor to wear a brace on her left leg, and because she
uses a cane to walk. Pltf's Br. at 19-20. It is not disputed that
Plaintiff 1) is required by her doctor to wear a brace on her
left leg, 2) must use a cane when she cannot wear her brace, 3)
must move sideways when negotiating stairs, 4) has difficulty
judging distance with her foot because it feels like it is not
there, which causes her to trip, and 5) has an unstable ankle
which cannot be moved independently, and occasionally goes numb.
Pltf's Stmt of Facts at ¶¶ 19-21. Additionally, Plaintiff is not
to sit for more than eight (8) hours, stand for more than one (1)
hour at a time for a total of four (4) hours, or walk for more
than thirty (30) minutes at a time for more than two (2) hours a
day, and Plaintiff's doctor recommended that she not carry any
weight, climb stairs, stoop, bend, kneel, crouch or squat. Id.
Although this issue is a fairly close call, the Court finds and
rules that a reasonable fact finder could find that Plaintiff is
"substantially limited" in her ability to walk. Plaintiff's
ability to engage in prolonged walking (with a leg brace or a cane) is
somewhat more restricted than the plaintiff Taylor (30 minute
limitation compared to a 50 minute limitation). Moreover, the
constant leg pain experienced by Plaintiff and the difficulties
with her ankle are, in the Court's view, sufficient to
distinguish Plaintiff's ability to walk from Taylor and
Kelly. Therefore, Plaintiff has established prima facie
evidence of the first element of a claim of disability
discrimination, i.e., that she is a "qualified individual with
a disability."*fn14 The Court also finds and rules that a
reasonable fact finder could find that the remaining elements of
a disability discrimination claim are satisfied, i.e., that
Plaintiff was otherwise qualified to perform the essential
functions of her job with or without reasonable accommodations by
Defendant, that Plaintiff suffered an otherwise adverse
employment decision as a result of discrimination, and that
defendant's legitimate, nondiscriminatory reasons for its actions
were pretextual. Accordingly, summary judgment on this claim will
Plaintiff's claim that she is disabled because RSDS
substantially limits the major life activity of regulating her
body temperature is novel. Neither party has cited case law for
the proposition that regulating body temperature is a major life
activity, and the Court has been unable to find a decision which
definitively resolves the issue. In any event, Defendant's Brief
in Support of Motion for Summary Judgment focuses exclusively on
whether Plaintiff is disabled in the major life activity of
walking, and does not address the issue of Plaintiff's ability to
regulate her body temperature. The Court will likewise decline to
do so at this juncture.
b. Whether Defendant Regarded Plaintiff as Disabled?
In order to be covered under the "regarded as" prong of the
ADA, the employer must "regard the employee to be suffering from
an impairment within the meaning of the statutes, not just that
the employer believed the employee to be somehow disabled."
Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir. 2002).
In order to determine whether Defendant regarded Plaintiff as
disabled, the Court must consider the information Defendant had
regarding Plaintiff's condition and its response to that information. Buskirk v.
Apollo Metals, 307 F.3d 160, 167 (3d Cir. 2002). "[E]ven an
innocent misperception based on nothing more than a simple
mistake of fact as to the severity, or even the very existence,
of an individual's impairment can be sufficient to satisfy the
statutory definition of a perceived disability." Deane v. Pocono
Med. Ctr., 142 F.3d 138, 144 (3d Cir. 1998) (en banc).
Additionally, the analysis "focuses not on [the plaintiff] and
his actual disabilities, but rather on the reactions and
perceptions of the persons interacting or working with him."
Kelly, 94 F.3d at 108-09 (stating that the "mere fact that an
employer is aware of an employee's impairment is insufficient to
demonstrate . . . that the employer regarded the employee as
The Court finds and rules that a reasonable fact finder could
find that Defendant regarded Plaintiff as disabled or otherwise
substantially limited in her ability to walk. For example, there
is evidence that Clements was generally well-informed of
Plaintiff's injury, recovery and physical limitations, that
Clements made an effort to accommodate Plaintiff's limited
mobility by arranging for a handicapped parking space which was
located close to the elevator, and that Clements was initially
receptive to Plaintiff's need to take time off of work to attend
physical therapy. See Clements dep. at 53; O'Hara dep. at
85-86. It may well be that Clements' efforts to accommodate
Plaintiff were merely an effort facilitate her recovery, and were
not motivated by a belief that she was "disabled" within the
meaning of the ADA. However, this issue requires resolution by a
fact finder. Therefore, Plaintiff may pursue her disability
discrimination claim on the basis that she was regarded as
disabled by Defendant. As mentioned above, it is clear to the
Court that a reasonable fact finder could find that the remaining
elements of a disability discrimination claim are satisfied.
Accordingly, the Court will deny summary judgment as to
Plaintiff's claim of disability discrimination.
2. Failure to Accommodate
Count II of the Amended Complaint also alleges that "Defendant
also refused to make reasonable accommodations for O'Hara known
(sic) disability in violation of 42 U.S.C. § 12112(b)(5)(A)."
Amended Complaint at ¶ 22. The ADA prevents an employer from
failing to provide "a reasonable accommodation to the known physical or
mental limitations of an otherwise qualified individual with a
disability." 42 U.S.C. § 12112(b)(5)(A). To establish a prima
facie case of failure to accommodate, Plaintiff must prove: (1)
she is an individual with a disability under the ADA; (2) she can
perform the essential functions of her position with an
accommodation, (3) her employer had notice of the alleged
disability, and (4) the employer failed to accommodate her.
Conneen v. MBNA America Bank, 182 F. Supp. 2d 370, 378-79 (D.
The Court finds and rules that based upon the evidence of
record, a reasonable fact finder could find that Defendant failed
to accommodate Plaintiff's perceived disability. There is prima
facie evidence that Defendant is either disabled or regarded as
disabled, that Plaintiff could perform the essential functions of
her position with an accommodation, that Defendant had notice of
Plaintiff's alleged disability, and that Defendant terminated her
employment rather than provide an accommodation. Accordingly,
summary judgment as to Plaintiff's claims for failure to
accommodate will be denied.
C. Tortious Discharge (Count III)
O'Hara alleges in Count III of her Amended Complaint that she
was fired because she attempted to secure workers' compensation
benefits. Amended Complaint at ¶ 26. In Shick v. Shirey Lumber,
716 A.2d 1231, 1232 (1998), the Supreme Court of Pennsylvania
held that "an at-will employee who alleges retaliatory discharge
for the filing of a workers' compensation claim has stated a
cause of action for which relief may be granted under the law of
this Commonwealth." Shick, 716 A.2d 1231. Unfortunately, "the
Supreme Court did not define the elements necessary to establish
a prima facie case of `retaliation.'" Landmesser v. United Air
Lines, Inc., 102 F. Supp. 2d 273, 277 (E.D. Pa. 2000). In
Landmesser, the United States District Court for the Eastern
District of Pennsylvania predicted that when the Pennsylvania
Supreme Court decides the issue, it will "adopt the analysis that
is already applied in retaliation cases in the federal employment
context." Landmesser, 102 F. Supp. 2d at 277. Accordingly, the
Landmesser court held that in order to state a prima facie
case of workers' compensation retaliation, there must be evidence that: (1) the employee
engaged in a protected employee activity; (2) the employer took
an adverse employment action after or contemporaneous with the
employee's protected activity; and (3) a causal link exists
between the employee's protected activity and the employer's
adverse action. Id. at 277-78. This Court also predicts that
the Pennsylvania Supreme Court would adopt the analysis that is
applied to federal employment discrimination cases.
The Court finds and rules that Plaintiff's claim for workers'
compensation retaliation is without merit. There is no evidence
of record from which a reasonable fact finder could find that
Plaintiff was fired because she attempted to secure workers'
compensation benefits. It is undisputed that Plaintiff began to
receive workers' compensation benefits shortly after her injury,
that Defendant did not contest her claim, and that at the time
that Defendant's Motion for Summary Judgment was filed, Plaintiff
was still receiving workers' compensation benefits in the amount
of $662.00 per week. Def's Stmt. of Facts at ¶¶ 6-9.
Additionally, at her deposition Plaintiff was asked what
Defendant had done to prevent her from receiving workers'
compensation benefits. Pltf's Dep. at 150. Plaintiff replied, "I
don't know." Id. Therefore, the Court will grant summary
judgment in favor of Defendant on Count III of the Amended
For the reasons hereinabove stated, the Court will grant
Defendant's Motion for Summary Judgment as to Count III and deny
the Motion as to Counts I, II and IV. An appropriate Order
follows. ORDER OF COURT
AND NOW, this 21st day of November, 2005, in accordance with
the foregoing Memorandum Opinion it is hereby ORDERED, ADJUDGED
and DECREED that Defendant's Motion for Summary Judgment
(Document No. 24) is GRANTED as to Count III of Plaintiff's
Complaint, but DENIED as to Counts I, II and IV.
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