The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Martha Flory, filed this action against defendant, Pinnacle Health Hospitals, her former employer, alleging violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12117; the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951-963 (Purdon & Purdon Supp. 2008-09); and the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 791.*fn1 Plaintiff claims that Pinnacle fired her after failing to make a reasonable accommodation for her ambulatory dysfunction, retaliated against her after she invoked her rights under the ADA, and paid her less money than those in the same job who were not disabled.
We are considering Defendant's motion for summary judgment. We will evaluate it under the well established standard. See Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008).*fn2
Based on the parties' statements of material fact and supporting evidence, the following is the undisputed background to this litigation.*fn3 Flory is a registered nurse who worked for Polyclinic Health System before it merged with Harrisburg Hospital in 1995 to become Pinnacle Health Hospitals. Plaintiff suffered a back injury in 1986 which required spinal fusions in 1990 and 1998. As a result of the second operation, Plaintiff has ambulatory dysfunction.*fn4 In 1998, she was placed on a four-hour workday, a requirement imposed by worker's compensation physicians.
In 1997, Flory became a registered nurse assessment coordinator (RNAC). As an RNAC, Flory coordinated insurance activities and gathered information on extended-care patients. Flory also had to interact with patients.
Because of her ambulatory dysfunction, it was unsafe for Plaintiff to walk on slippery surfaces. These could be surfaces that were merely wet from rain as well as those that were snow covered. Plaintiff decided whether she would go to work "by checking the weather forecast and looking outside." (Doc. 28-3, Flory Decl. ¶ 13). "When there was precipitation, or precipitation was forecasted, during [the] work day, [she] did not go to work." (Id. ¶ 14.) In February 2000, Plaintiff's then supervisor, Leann Roch, noticed a pattern where Plaintiff was calling off work due to weather. Plaintiff presented a doctor's excuse. Roch did not discipline Plaintiff for the absences because Roch left the Hospital's employ before that could happen. (Doc. 26-3, Roch Dep. pp. 9-10). In late 2003 or early 2004, Nancy Fridy was hired as the nursing home administrator. Fridy did not charge Plaintiff with absences when she was not at work because of inclement weather. (Doc. 28-3, Flory Decl. ¶¶ 21-22).*fn5
In February 2005, Plaintiff submitted a doctor's note requesting that she be excused from work during inclement weather. The note prompted a discussion between Flory; Stacy Lowther, the nursing home administrator; Cathleen Timothy, nurse manager, and Glenda Galey, personnel representative for Pinnacle. The parties discussed ways Flory could get to the Hospital during inclement weather: clearing her sidewalk so that she could get to her car and calling a taxi or van to drive Plaintiff from home to work. Defendant also believes the parties discussed providing her with a wheelchair so that she could get from her car to the Hospital door and providing her with a bus pass.
None of these solutions was acceptable to Flory. Her main concern was getting from her house to her car, which was unsafe even if the sidewalk was just wet from rain (and remained wet after a snowfall, even when the snowfall was cleared).
Another solution was coming in on the weekends. However, Flory's office was on the third floor; the elevator did not operate on the weekends, and she did not know if she "could have managed the steps," meaning the stairwell. (Doc. 26, Flory Dep. pp. 61; doc. 28-3, Flory Decl. ¶ 45).
Pinnacle has a progressive disciplinary policy. An employee is first given a verbal warning, then a written warning, then a suspension, and finally termination. Insubordination may result in immediate termination.
Between February 21, 2005, and March 1, 2005, Flory called off work five times, four because of weather. On February 23, 2005, Flory received an oral warning for allowing patients' medical records to collect in the RNAC office rather than forwarding them to medical records. On March 2, 2005, Plaintiff was given a written warning based on the absenteeism. The warning instructed her that when snow was forecasted, she should arrange with her supervisor to work alternate hours or on the weekend. On March 9, 2005, Flory was given a one-day suspension for not coming to work because of the weather.
On April 11, 2005, Flory's employment was terminated. According to the documentation for the termination, she had performed deficiently on March 9, 2005, March 22, 2005, and April 1, 2005. During the last incident, the description of Plaintiff's behavior indicated a refusal to do work within the RNAC job description and a rude attitude toward her superior. It was also noted that she had called in ill from April 4 to April 8, 2005. Her employment was terminated on the basis that she "had failed to meet specific performance criteria of the RNAC position." Quoted in the dismissal document was the portion of the RNAC job description requiring that an RNAC "must maintain a professional ...