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Keyhani v. The Trustees of University of Pennsylvania

United States District Court, E.D. Pennsylvania

June 21, 2019



          EDUARDO C. ROBRENO, J.

         Presently before the Court is the motion for summary judgment filed by Defendant, the Trustees of the University of Pennsylvania. Plaintiff, Tanya Keyhani, asserts claims against the Defendant for: (1) discrimination/failure to accommodate, retaliation, and hostile work environment under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”) and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951, et seq. (“PHRA”); (2) interference and retaliation under the Family Medical Leave Act, 29 U.S.C. § 2601, et. seq. (“FMLA”); and (3) retaliation for making a Workers' Compensation claim. For the reasons that follow, the Court will grant Defendant's motion.


         Since 2002, Plaintiff has worked for the University of Pennsylvania (“Penn”) as a Project Manager in Penn's Design and Construction Department of Facilities and Real Estate Services (“FRES”). Project Managers manage and coordinate the various players involved in the design and construction of building projects at Penn. Their job duties include writing requests for proposals, reviewing project documents, inspecting project construction sites, and participating in various staff and project meetings.

         On December 10, 2015, Plaintiff tripped on a sidewalk at work and fell to the ground. Plaintiff's supervisor referred her to Penn Medicine who cleared her for work with sedentary duties for that day. The next day, Defendant reported the accident to the Workers' Compensation Board. Plaintiff was reevaluated by Penn Medicine on December 24 and 31, 2015 at which time Dr. David Allan cleared her for work without limitations.

         However, on January 6, 2016, Plaintiff reported to Dr. Kelly Heath, also from Penn Medicine, concussion type symptoms such as forgetfulness, difficulty concentrating, dizziness, and headaches. Dr. Heath opined that Plaintiff would benefit from working from home with rest breaks throughout the day.

         On January 13 and 27, 2016, Dr. Allan wrote notes recommending that Plaintiff be able to work from home two to three days per week. Plaintiff gave the January 13, 2016 note to her supervisor, Mariette Buchman, who then discussed with Plaintiff working partially from home. Plaintiff believed that Buchman “was okay with it, ” but that Mike Dausch, Executive Director of Design and Construction would not be, and understood that Buchman would talk to Dausch about working from home. Plaintiff assumed that she was permitted to work from home until Buchman talked to Dausch and received a final answer. As a result, Plaintiff began working from home two days per week. At the end of January, Buchman denied giving Plaintiff permission to work from home, but Plaintiff was not disciplined. Buchman explained in a January 29, 2016 email to Plaintiff that when Plaintiff gave Buchman the January 13, 2016 note, she told Plaintiff that the Human Resources Department would have to approve any long-term telecommuting schedule.

         Plaintiff then discussed working from home two days per week with Chereese Martin, Director of Human Resources. While Defendant did not permit Plaintiff to work from home, Defendant did authorize Plaintiff to limit her work week to three days per week. At the end of January and beginning of February 2016, Martin discussed with Plaintiff filing for FMLA leave, provided forms to Plaintiff, and explained that any FMLA leave would need to run concurrent with any Workers' Compensation. Martin also told Plaintiff that she would need to exhaust all available paid time off and sick leave prior to taking unpaid FMLA leave.

         On February 16, 2016, Plaintiff's Workers' Compensation claim was approved, and Plaintiff submitted her FMLA leave forms on February 24, 2016. Also on February 24, 2016, Dr. Allan opined that Plaintiff was unable to perform her job full-time and that she should only work three days per week. Dr. Allan drafted another note dated the same day providing that Plaintiff could return to work three days per week and work from home two days per week.

         On March 9, 2016, Dr. Allan provided a note opining that Plaintiff could work three days per week on site and two from home, but that she could work the additional two days in the office if she worked only with natural light. Dr. Allan repeated this opinion on March 23, 2016. On March 17, 2016, Plaintiff saw Dr. Heath who noted that Plaintiff was working three days per week and using paid time off and staying home for the other two days. Dr. Heath opined that Plaintiff would benefit from the accommodation of working from home two days per week, but that if that accommodation could not be made, she should not work those two days. Dr. Heath made this same recommendation on April 4, 2016.

         While Plaintiff was not permitted to work from home and was told not to do work while at home, she asserts that she had to answer emails and make phone calls on her days off. Plaintiff continued to provide notes from Dr. Heath including one from June 6, 2016 stating that she could work three days per week in a work space where she could control light and sound and could have rest breaks every two hours. Defendant accommodated Plaintiff by permitting her to wear sunglasses and use noise-cancelling headphones during the three days per week that she was at work. Similar notes from August 3 and September 12, 2016 also added that Plaintiff could work the other two days from home. Plaintiff's FMLA leave was approved on June 1, 2016, retroactive to February 2, 2016. Plaintiff was paid by Defendant for three days of work per week while Workers' Compensation paid for the other two days off.[2] Plaintiff used her allotted sick leave, paid time off, and FMLA unpaid leave to cover the two days off per week.

         On October 7, 2016, Plaintiff provided Defendant with a September 12, 2016 note from Dr. Heath which cleared her for work three days per week in a work space where she could control light and sound, could take rest breaks, and could limit sustained computer use. He also recommended allowing Plaintiff to work from home the other two days. On October 25, 2016, Patrice Miller, Associate Director of the Office of Affirmative Action and Equal Opportunity Programs, informed Dr. Heath that all the accommodations were being made except working from home two days per week because the nature of Plaintiff's work required her to be on campus.

         On November 7, 2016, Defendant declined to extend Plaintiff's reduced work schedule accommodation asserting that it had created significant operational challenges and that continuing it would generate undue hardship. That same day, Dr. Heath provided a note concluding that Plaintiff could work five days per week for six hours per day. Defendant accommodated this schedule by having Plaintiff work from 8:00 a.m. to 3:00 p.m. with a one-hour lunch break. Before her accident, Plaintiff had worked from 6:00 a.m. to 3:00 p.m. On August 3, 2017, Plaintiff returned to a full-time schedule but was permitted to continue wearing sunglasses and noise-cancelling headphones.

         Plaintiff filed her complaint on July 11, 2017 and amended it on February 28, 2018. Defendant filed the instant motion for summary judgment on July 30, 2018.


         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A fact is “material” if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

         The Court views the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed.R.Civ.P. 56).

         III. DISCUSSION [3]

         The majority of Plaintiff's claims rise and fall on one issue: whether she was entitled to the accommodation of her choice (working from home two days per week). The law is clear that Plaintiff was entitled to reasonable accommodations, but not the accommodation of her choice.

         A. Plaintiff's ADA and PHRA Discrimination and Retaliation Claims and FMLA and Workers' Compensation Retaliation Claims

         Plaintiff's ADA and PHRA discrimination and retaliation claims and her FMLA and Workers' Compensation retaliation claims all utilize the familiar McDonnell Douglas[4]burden shifting framework. Hatch v. Franklin Cty., 755 Fed.Appx. 194, 198 (3d Cir. 2018) (non-precedential) (applying the framework to ADA and PHRA discrimination claims); Spring v. Sealed Air Corp., 483 Fed.Appx. 765, 768 (3d Cir. 2012) (non-precedential) (applying the framework to a Workers' Compensation retaliation claim); Grosso v. Fed. Express Corp., 467 F.Supp.2d 449, 458 (E.D. Pa. 2006) (applying the framework to an FMLA retaliation claim).

         Under the McDonnell Douglas test: (1) the “plaintiff must first establish a prima facie case;” (2) if successful, “the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action;” and then (3) “the plaintiff [must] prove, by a preponderance of the evidence, that the articulated reason was a mere pretext for ...

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