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Thursby v. City of Scranton

May 25, 2006


The opinion of the court was delivered by: Chief Judge Vanaskie


Plaintiff Beth Thursby initiated this employment discrimination action against Defendant City of Scranton ("City") to pursue alleged violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq. Ms. Thursby, a former police officer with the City, claims that the City failed to reasonably accommodate her allergy to tobacco smoke. Specifically, she contends that the major life activities of breathing and working were substantially impaired by her tobacco smoke allergy, and that Scranton should have accommodated her impairment by implementing a non-smoking policy in areas where she performed her duties.

The City has moved for summary judgment arguing: (1) Ms. Thursby is not disabled as defined by the ADA; (2) the City reasonably accommodated Ms. Thursby by making a non-smoking room outside police headquarters available for her use; and (3) a collective bargaining agreement between the City and the police labor union made implementation of a non-smoking policy unreasonable. Because Ms. Thursby has presented sufficient evidence to support a jury finding in her favor on each of the City's arguments, its motion for summary judgment will be denied.


Plaintiff Beth Thursby suffers adverse reactions when exposed to tobacco smoke or odors for more than a few minutes.*fn1 (Aff. of Beth Thursby ("Thursby Aff.") (Dkt. Entry 33) ¶¶ 2-3, 10-11.) Her sinuses become inflamed, which causes her breathing difficulties. (Id. ¶ 3.) She experiences tightness in her chest and repeatedly coughs to the point of hurting her chest. (Id.) Her throat becomes sore and her voice deepens. (Id.) She has even had throat and chest infections. (Id. ¶ 2.) She gets dizzy and loses feeling in her arms and hands. (Id. ¶ 3.) Even after removing herself from the exposure, Ms. Thursby may continue to suffer adverse reactions for up to five days. (Id. ¶ 10.) This can cause her sleeping difficulties. (Id. ¶ 3.) Because of her condition, Ms. Thursby tries to avoid situations in her private life that may expose her to tobacco smoke or odors. (Id. ¶¶ 12-13.)

Ms. Thursby was employed as a police officer for Defendant City from June 20, 1990 to December 15, 2002.*fn2 (Def.'s Statement of Material Facts ("SMF") (Dkt. Entry 31) ¶¶ 5-6.) Employment conditions within the police department are governed by a collective bargaining agreement between the City and the police labor union, the Fraternal Order of Police ("FOP").*fn3 (Id. ¶ 3.) The collective bargaining agreement in effect from January 1996 through December 2002 did not contain a non-smoking policy. (Id. ¶ 4.)

Ms. Thursby primarily operated out of a police car. (Id. ¶ 21.) She also regularly spent time at police headquarters and at the police roll call room. (Id. ¶ 8, 23.) During her employment, Ms. Thursby experienced adverse reactions to tobacco products while in police vehicles, at police headquarters, and participating in roll call. (Thursby Aff. ¶¶ 29-32.) She sometimes had to go home because of the reactions, and used sick leave on at least two occasions as a result of her tobacco sensitivity. (Id. ¶¶ 35-36.)

The police headquarters for the City is located in the basement of the city hall building in Scranton, Pennsylvania. (Tr. of Bethany Thursby's Aug. 11, 2003 Dep. ("Thursby Dep.") (Dkt. Entry 28-3) at 11.) On August 8, 1997, Chief of Police James Klee issued an order banning smoking in the police headquarters. (Tr. of James Klee's Oct. 8, 2003 Dep. (Dkt. Entry 37) at 14-16.) Ms. Thursby states that police officers continued to smoke at headquarters despite the order. (Thursby Dep. at 34.) Police Chief Klee rescinded the smoking ban in January 2000 after concluding that a non-smoking policy had to be negotiated with the FOP. (Tr. of James Klee's Oct. 8, 2003 Dep. (Dkt. Entry 37) at 17.)

Ms. Thursby would regularly be present at police headquarters to turn in reports, meet with people, pick up documents, take prisoners in, file arrest reports, and perform other tasks. (Thursby Dep. at 11-12.) Though the amount of time that Ms. Thursby would spend at headquarters varied, she spent on average about an hour per eight-hour shift there. (Id. 12-14.) Occasionally, she would spend an entire shift at headquarters. (Id. at 12-13.)

Ms. Thursby made numerous complaints about smoking at police headquarters. (Thursby Aff. ¶ 34.) In response, Captain Kevin Mitchell gave Ms. Thursby access to other non-smoking rooms located in the city hall building. (Def.'s SMF ¶ 22.) Ms. Thursby, however, could not perform some job duties from these rooms, including accessing police files and computer databases, processing arrests, and preparing affidavits or reports. (Pl.'s SMF (Dkt. Entry 34) ¶ 22.)

Ms. Thursby also asked the FOP and the Scranton City Council to implement a non-smoking policy in areas where she performed duties for the police department. (Thursby Aff. ¶¶ 52, 55.) Neither implemented a non-smoking policy during Ms. Thursby's employment. (Id. ¶¶ 54, 56.)

On December 27, 2002, Ms. Thursby filed a complaint in this Court alleging that the City violated the ADA and the PHRA.*fn4 (Dkt. Entry 1.) The City moved for summary judgment on October 29, 2004. (Dkt. Entry 28.) The Motion has been fully briefed and is now ripe for decision.


Summary judgment should be granted when "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." FED. R. CIV. P. 56(c). A fact is "material" if proof of its existence or nonexistence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to nonmoving party. Cont'l Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). The moving party has the burden of showing the absence of a genuine issue of material fact, but the nonmoving party must present affirmative evidence from which a jury might return a verdict in the nonmoving party's favor. Anderson, 477 U.S. at 256-57. Merely conclusory allegations taken from the pleadings are insufficient to withstand a motion for summary judgment. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Summary judgment is to be entered "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).


The parties agree that the analysis to be applied to Ms. Thursby's ADA claim also applies to her PHRA claim. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. ...

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