The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff Jamie C. Bisker ("Bisker") filed this action against her employer, GGS Information Services, Inc. ("GGS"), claiming violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq. She specifically alleges claims of failure to accommodate, disparate treatment and failure to engage in the interactive process. We now consider the parties' cross-motions for summary judgment.
We will examine the motion under the well-established standard. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d. Cir. 2008). "The rule is no different where there are cross-motions for summary judgment." Id. Upon careful review of the briefs and the record, we will deny both motions.
We see no reason to set forth a detailed factual background as the facts were addressed in our earlier decision, Bisker v. GGS Info. Servs., Inc., No. 07-1465, 2008 WL 4372927 (M.D. Pa. Sept. 22, 2008), and in the Third Circuit's opinion vacating and remanding our prior determination, Bisker v. GGS Info. Servs., Inc., 342F.App'x 791 (3d Cir. 2009). Any further, relevant facts will be discussed as necessary.
A. American's with Disabilities Act
The ADA prohibits employers from discriminating "against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Disability means, "with respect to an individual-(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1).
"In order to make out a prima facie case of disability discrimination under the ADA, [plaintiff] must establish that she (1) has a 'disability,' (2) is a 'qualified individual,' and (3) has suffered an adverse employment action because of that disability." Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006). "Adverse employment decisions...include refusing to make reasonable accommodations for a plaintiff's disabilities." Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004)(quoted cases omitted). Here, GGS does not contest that Bisker has a disability under the ADA. GGS contends that no reasonable accommodations existed and that plaintiff is not a qualified individual because she cannot perform the essential functions of her job with or without reasonable accommodations. Thus, the critical issue is whether Bisker has presented sufficient evidence creating a triable issue on whether she could, with reasonable accommodations, perform the essential functions of her job by working from home.
A qualified individual "means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). "The EEOC regulations divide this inquiry into two parts: (1) whether the individual has the requisite skill, experience, education and other job-related requirements of the position sought, and (2) whether the individual, with or without reasonable accommodation, can perform the essential functions of that position." Turner, 440 F.3d at 611 (citing 29 C.F.R. § 1630.2(n)). On the second part of the inquiry, "[w]hether a job duty is an 'essential function' turns on whether it is 'fundamental' to the employment position," id. at 612. (citing 29 C.F.R. § 1630.2(n)(1)), and it is a factual determination made on a case by case basis. Id.*fn2 "The determination of whether an individual with a disability is qualified is made at the time of the employment decision, and not at the time of the lawsuit." Id. at 611.
2. Reasonable Accommodations
The ADA provides that an employer discriminates against a qualified individual when the employer does "not make reasonable accommodations to the known physical or mental limitations of the individual unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer." Taylor v. Phoenixville School District, 184 F.3d 296, 306 (3d Cir. 1999)(quoting 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations are "modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that job." 29 C.F.R. § 1630.2(o)(1)(ii). An undue hardship involves "significant difficulty or ...