United States District Court, E.D. Pennsylvania
EDUARDO C. ROBRENO, J.
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
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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.
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
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.
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.
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.
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.
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.
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. Plaintiff used her allotted sick leave,
paid time off, and FMLA unpaid leave to cover the two days
off per week.
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.
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.
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.
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.
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).
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.
Plaintiff's ADA and PHRA Discrimination and Retaliation
Claims and FMLA and Workers' Compensation Retaliation
ADA and PHRA discrimination and retaliation claims and her
FMLA and Workers' Compensation retaliation claims all
utilize the familiar McDonnell Douglasburden 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).
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