United States District Court, E.D. Pennsylvania
Cheryl Lee-Owens brings this suit against her former
employer, Defendant School District of Philadelphia
(“Defendant” or “School District”).
She alleges that Defendant failed to make a reasonable
accommodation for her disability while she was employed at
Wagner Middle School, which is part of the School District.
(Doc. No. 34.) In addition, she argues that Defendant
retaliated against her when she complained about the failure
to provide her with a reasonable accommodation.
Count I of her First Amended Complaint (“FAC”),
Plaintiff alleges a violation of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C § 12112(a)
et seq. (Id. ¶¶
77-87.)This is the failure to make a reasonable
accommodation charge. In Count III, she asserts a violation
of 42 U.S.C. § 12203(a) of the ADA, which prohibits
retaliation for making an accommodation request under the
Defendant moves for summary judgment. (Doc. No. 45.) The
Motion is now ripe for a decision. For reasons that follow,
the Court will grant in part and deny in part Defendant's
Motion for Summary Judgment (Doc. No. 45).
is a former Educational Inclusion Specialist at Wagner Middle
School in Philadelphia, Pennsylvania and was employed by the
School District of Philadelphia. (Doc. No. 34 ¶ 18.)
Because of her role as a Specialist, Plaintiff would travel
from classroom to classroom to follow special education
students to their various classes and would bring her
materials along. (Pl.'s Dep., Nov. 9, 2017, 11:16-21.)
She was responsible for approximately twenty to thirty
students. (Id. at 12:1-6.) To perform her work
assignment, Plaintiff had to physically exert herself by
having to “stand, kneel, crouch, stoop and bend over
students to provide individual instruction” while also
having to “carry heavy books, computers, printers and
other equipment.” (Id. ¶ 19.) Frequently,
Plaintiff would have to physically lift or move students in
order to break up fights or to engage in related activity
depending on the circumstances if a “student wasn't
compliant or if a student was ill or otherwise
incapacitated.” (Doc. No. 50-3 at 10:3-11:5;
August 30, 2013, before the start of the 2013-2014 school
year, Plaintiff submitted a request for accommodation to
Andrew Rosen, the then Deputy of Employee Relations of the
School District. (Pl.'s Dep., Nov. 9, 2017, 17:20-18:9;
Doc. No. 44-1 ¶ 12.) Suffering from lumbar disc
degeneration and lumbar spinal stenosis, Plaintiff requested
a classroom assignment on the first floor or a classroom at
another school with an elevator. (Pl.'s Dep., Nov. 9,
2017, 18: 5-9; Doc. No. 34 at ¶¶ 23, 35.) She
supplemented her request with a letter from her two treating
doctors, which stated: “[T]here should be no stair
climbing due to [Plaintiff's] lumbar disc degeneration
and lumbar spinal stenosis.” (Doc. No. 34 ¶ 35.)
She also informed Maya Johnstone, her immediate supervisor
and the Wagner Middle School principal, about her physical
challenges if assigned to a higher floor. (Id.
¶ 29.) Nevertheless, Johnstone assigned Plaintiff to
work in a classroom on the third floor of the Wagner Middle
School, which did not have an elevator. (Id. ¶
result of her accommodation request, Plaintiff was scheduled
by Carol Kenney, the Director of Employee Health Services, to
meet on September 4, 2013 with Dr. Aribelle Jones, M.D., of
the School District's Health Services Department.
(Pl.'s Dep., Nov. 9, 2017, 22:18-23:16; Doc. No. 50-7 at
3.) During her examination, Plaintiff told Dr. Jones that she
was “unable to ascend and descend the stairs several
times a day.” (Doc. No. 50-8 at 1.) Dr. Jones
instructed Plaintiff to return to work and resume stair
climbing, despite her treating doctors' recommending the
opposite. (Pl.'s Dep., Nov. 9, 2017, 24:2-7.) Dr. Jones
told her that she would hear back from the School District
with a decision on her accommodation request within five
days. (Id. at 24:8-11.) Plaintiff did not receive
any update on her request within the ensuing five days.
September 23, 2013, she took sick leave “due to the
aggravation of her condition from climbing stairs daily for
three weeks while waiting for a reasonable accommodation of a
classroom assignment on a lower floor.” (Doc. No. 34
¶ 43; Pl.'s Dep., Nov. 9, 2017, 28:14-21.) Before
going on leave, Plaintiff tried to find out whether the
School District had rendered a decision on her request by
asking Johnstone and Rosen, but to no avail. (Pl.'s Dep.,
Nov. 9, 2017, 25:16-26:6.)
September 25, 2013,  nearly three weeks after the examination,
Dr. Jones sent a memorandum to Rosen, stating that Plaintiff
was requesting an accommodation of “limited stair
climbing” and qualified for that accommodation. (Doc.
No. 50-8 at 1.) In her memorandum, Dr. Jones noted that
Plaintiff did not require a cane, which “solidif[ied
Plaintiff's] declaration that she was work able.”
(Id.) On September 27, 2013, while still on leave
and waiting for the School District to make a decision on her
request, Plaintiff submitted a notice of retirement,
effective October 7, 2013. (Id.) She claims that
“[b]ut for Defendant's intentional denial of a
reasonable accommodation, Plaintiff would have worked until
age 65 before taking her retirement.” (Id.
October 14, 2013, Plaintiff sent Rosen a request for status
of her personal leave payout which she believed was owed to
her. (Doc. No. 34 ¶ 68.) Rosen never responded.
(Id.) On or about June 9, 2014, Plaintiff contacted
Lincoln Investment, “because that was the entity that
held onto [Plaintiff's] 401[K] and that was [her]
separation pay.” (Pl.'s Dep., Nov. 9, 2017,
30:23-31:1.) A Lincoln Investment representative informed
Plaintiff that the School District had updated her status to
“terminated, ” rendering her ineligible to
receive the payout. (Doc. No. 34 ¶ 70.)
August 26, 2016, Plaintiff filed a Complaint against the
School District of Philadelphia. (Doc. No. 1.) On October 24,
2017, she filed the FAC. (Doc. No. 34.) On February 23, 2018,
the School District of Philadelphia filed a Motion for
Summary Judgment. (Doc. No. 44.) On April 2, 2018, Plaintiff
filed her Opposition to the Motion for Summary Judgment (Doc.
No. 50) and on April 11, 2018, the School District filed its
Reply. (Doc. No. 57.)
STANDARD OF REVIEW
summary judgment is an extraordinary remedy. Summary judgment
is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). In reaching this decision, the court must determine
“whether the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits show that
there is no genuine issue of material fact and whether the
moving party is therefore entitled to judgment as a matter of
law.” Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d
266, 271 (3d Cir. 2012) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)). A disputed issue is
“genuine” only if there is a sufficient
evidentiary basis on which a reasonable factfinder could find
for the non-moving party. Kaucher v. County of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A factual dispute is “material” only if
it might affect the outcome of the suit under governing law.
Doe v. Luzerne County, 660 F.3d 169, 175 (3d Cir.
2011) (citing Gray v. York Papers, Inc., 957 F.2d
1070, 1078 (3d Cir. 1992)). The Court's task is not to
resolve disputed issues of fact, but to determine whether
there exist any factual issues to be tried.
Anderson, 477 U.S. at 247-49.
deciding a motion for summary judgment, the Court must view
the evidence and all reasonable inferences from the evidence
in the light most favorable to the non-moving party.
Macfarlan, 675 F.3d at 271; Bouriez v. Carnegie
Mellon Univ., 585 F.3d 765, 770 (3d Cir. 2009). Whenever
a factual issue arises which cannot be resolved without a
credibility determination, at this stage the Court must
credit the non-moving party's evidence over that
presented by the moving party. Anderson, 477 U.S. at
255. If there is no factual issue and if only one reasonable
conclusion could arise from the record regarding the
potential outcome under the governing law, summary judgment
must be awarded in favor of the moving party. Id. at
Count I, Plaintiff asserts a violation of the Americans with
Disabilities Act (ADA), which 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).
Also in Count I, Plaintiff raises a claim under 42 U.S.C.
§ 12112(b)(5)(A), which prohibits employers from
“not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an . . .
employee.” § 12112(b)(5)(A). Finally, in Count
III, Plaintiff alleges that the School District engaged in
retaliation by changing her status to
“terminated” with the Lincoln Investment Company
after she requested an accommodation.
School District moves for summary judgment on all three
counts based on the following three arguments. First, under
Count I, Plaintiff is not a qualified individual who can make
a claim under the ADA. Second, also under Count I, Plaintiff
did not suffer any adverse employment action because she was
not denied an accommodation. Third, regarding the claim in
Count III, Plaintiff fails to set forth a prima facie case to
establish retaliation. The Court will address each of these
arguments in turn.
A Genuine Issue of Material Fact Exists as to Whether
Plaintiff Is a Qualified Individual Under the ADA
parties dispute whether Plaintiff is a qualified individual
with a disability under the ADA because they disagree on if
she is able perform the essential functions of her job, with
or without reasonable accommodation. This is an element of an
prohibits employers from discriminating “against a
qualified individual with a disability.” 42 U.S.C.
§ 12112(a). A “qualified individual with a
disability” is a person “with a disability who,
with or without reasonable accommodation, can perform the
essential functions of the employment position that such
individual holds or desires.” Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 205 (3d Cir.
1999) (quoting 42 U.S.C. § 12111(8)). To determine
whether a person is a qualified individual with a disability,
a court first looks to whether the individual meets the
prerequisites of the position, “such as possessing the
appropriate educational background, employment experience,
skills, licenses, etc.” McNelis v. Pa. Power &
Light Co., 867 F.3d 411, 415 (3d Cir. 2017) (citation
must then determine whether the individual is able to
“perform the essential functions of the position held
or desired, with or without reasonable accommodation.”
Id. In addition, a qualified person with a
disability can make a prima facie case of discrimination if
she can demonstrate that she is able to “perform the
essential functions of the job with reasonable accommodation
and that the employer refused to make such an
accommodation.” Williams v. Phila. Hous. Auth.
Police Dep't, 380 F.3d 751, 768 (3d Cir. 2004).
prove a prima facie case of discrimination under the ADA, a
plaintiff has the burden to show that (1) she is a disabled
person within the meaning of the ADA; (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.Tay ...