CHRISTOPHER C. CONNER, Chief Judge.
Presently before the court in the above-captioned action is the motion (Doc. 24) pursuant to Federal Rule of Civil Procedure 56(a) filed by defendant Subway ("Subway"). Subway seeks summary judgment with respect to all claims asserted by plaintiff Kiera Barber ("Barber"), a former employee, who alleges that Subway discriminated against her as a result of her disability, failed to accommodate her disability, and retaliated against her for requesting an accommodation, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. STAT. §§ 951-963. For the reasons that follow, the court will deny Subway's motion in its entirety.
The instant matter concerns the employment
Barber began her training at Subway on May 30, 2012, and subsequently worked on May 31, June 2, and June 12. (Doc. 25 ¶ 13; Doc. 28 ¶ 13). During her June 12, 2012 shift, Barber suffered an anxiety attack while she was preparing a sandwich at the front of the store. (Doc. 25 ¶ 15; Doc. 28 ¶ 15). Barber went to the back of the store to attempt to control her symptoms. (See Doc. 25 ¶ 16; Doc. 28 ¶ 16). According to Barber's testimony, Patel followed her to the back of the store, inquired of her condition, and pressured her to return to work. (See Doc. 28 ¶ 17; see also Doc. 25 ¶ 17). Barber's condition did not improve, and she requested permission to leave early. (See Doc. 28 ¶¶ 18-19; see also Doc. 25 ¶¶ 18-19).
The parties' accounts of the events that followed diverge considerably. According to Barber, Patel responded to her request by stating: "I don't see any reason to keep training you if you're going to keep having anxiety attacks." (Doc. 28 (counter-statement) ¶ 26 (quoting Doc. 28-1, Ex. A, Barber Dep. 66:15-67:19, Dec. 5, 2014 (herein, "Barber Dep."))). Barber testified that Patel then "commanded" that she leave the store. (See id. ¶ 27). Barber also testified that Patel never told her that she was "fired" or "terminated," but that she perceived his order to leave as a formal termination of her employment with Subway. (See Doc. 25 ¶ 25; Doc. 28 ¶ 25).
According to Subway, Patel "accommodated [Barber's] request and allowed her to leave her shift early that day," but expected that she would return to work for her next scheduled shifts on June 14, June
Barber commenced the instant matter with the filing of a complaint (Doc. 1) on March 31, 2014.
Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact" and for which a jury trial would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of proof tasks the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D.Pa.2004); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Only if this threshold is met may the cause of action proceed. See Pappas, 331 F.Supp.2d at 315.
Barber pursues three separate theories of liability against Subway arising from the June 12, 2012 incident: disability discrimination, failure to accommodate, and retaliation. Subway seeks summary judgment in its favor with regard to each of Barber's claims, contending that Barber did not suffer an adverse employment action but instead abandoned her position as a sandwich artist. (See Doc. 26 at 920). The court will utilize the Rule 56 record to measure each of Barber's claims against Subway's argument seriatim.
The ADA, in its foundational prohibition, provides that "[n]o covered entity shall discriminate against a qualified individual
Subway assumes for purposes of its Rule 56 argument that Barber was qualified to perform the job of sandwich artist and that her anxiety disorder qualifies as a disability. (See Doc. 26 at 9-10). In its brief, Subway instead argues a singular and discrete point: that Barber was not terminated on June 12, 2012, and did not suffer an adverse employment action. (Id. at 10-17). Barber responds that she understood Patel's statements and conduct to mean that her employment with Subway was terminated effective June 12, 2012, and that a reasonable juror would agree. (See Doc. 27 at 8-12). Barber denies abandoning her employment. (See id.)
There is no dispute that termination is an adverse employment action under the ADA. See 42 U.S.C. § 12112(a) (prohibiting discrimination in regard to, inter alia, "discharge of employees"). If Subway in fact terminated Barber's employment on June 12, 2012, Barber suffered an "adverse employment action" for purposes of establishing that element of her discrimination claim. See id. The instant Rule 56 inquiry is thus narrowly defined, tasking the court to consider whether genuine disputes of material fact remain regarding the circumstances of Barber's separation from Subway. A cursory review of the record reveals marked disputes of material fact, answering the court's inquiry in the affirmative and precluding summary judgment in Subway's favor.
According to Barber's deposition testimony, on June 12, 2012, she suffered an anxiety attack during her shift at Subway and advised Patel that she needed to take a break. (Doc. 25 ¶ 15; Doc. 28 ¶ 15). Barber went to the back of the store "to deal with the symptoms," (Doc. 25 ¶ 16;
Subway contends that, even assuming the truth of Barber's account, her "subjective belief" that her employment had been terminated is not sufficiently concrete evidence of an adverse employment action. (Doc. 26 at 9-17). Subway emphasizes that Patel never told Barber, expressly, that she was "terminated" or "fired." (Id. at 13). Subway identifies a number of district court decisions which it believes support the proposition that Barber's subjective belief that she was fired is insufficient to satisfy her Rule 56 burden. (See id. at 9-12). Review of the case law cited by Subway reveals that each decision is materially distinguishable.
Subway first cites DiFlorio v. Kleckner, No. 11-4405, 2012 WL 748910 (E.D.Pa. Mar. 7, 2012), as support for its position that Patel's comments do not rise to the level of an adverse employment action.
Subway next cites Ilori v. Carnegie Mellon University, 742 F.Supp.2d 734 (W.D.Pa.2010) and Riding v. Kaufmann's Department Store, 220 F.Supp.2d 442 (W.D.Pa.2002) as support for its position that no jury could find that the events of June 12, 2012 constituted a termination. (See Doc. 26 at 11-13). Ilori, a race-based discrimination case, involved an employee who resigned approximately five months after a meeting in which his employer warned that his "days ... were numbered" and suggested that the employee should select a date to resign. See Ilori, 742 F.Supp.2d at 743. The court held that the employer's "[e]ncouragement to resign" did not constitute an adverse employment action "because the threat was never carried out and had no demonstrable impact on plaintiff's employment." Id. at 760. Here, according to Barber's testimony, Patel's threatening statement was followed immediately by a purportedly forceful directive that Barber leave the premises. (See Doc. 28 ¶¶ 17-18; see also Doc. 28 (counter-statement) ¶¶ 26-29 (citing Barber Dep. 67:23, 69:18-70:9)). Accordingly, Ilori is factually distinguishable.
Subway's summary reliance on Riding is also unavailing. Subway cites Riding, a Title VII gender and pregnancy discrimination case, for its proposition that a plaintiff "could not establish that she suffered an adverse employment action when she `walk[ed] away from the job ... without clarifying any ambiguity about her expectations about that position by further inquiry or by returning to work and testing the waters.'" (Doc. 26 at 12 (quoting Riding, 220 F.Supp.2d at 468)). This language, in Subway's view, implies that Barber's claim fails because she did not follow up with Subway to confirm her termination nor did she attempt to return to work thereafter. This selective quotation again ignores crucial context. First, Riding involved a job reassignment and constructive discharge claim, rather than an outright claim of discriminatory termination, and thus entailed a separate and wholly distinct legal analysis. See Riding, 220 F.Supp.2d at 468 (quoting Connors v. Chrysler Fin. Corp., 160 F.3d 971, 975 (3d Cir.1998)). Second, the court did not hold that a terminated employee must clarify whether she is terminated before bringing a discriminatory discharge claim; instead, the court observed that an employee asserting a constructive discharge claim must "explore alternatives before electing
Subway finds its closest analogy in Wilson v. Checkers Drive-In Restaurants, Inc., No. 12-5365, 2013 WL 2256133 (E.D.Pa. May 23, 2013), a Title VII retaliation and sexual harassment case, which it cites for the proposition that an employee did not suffer an adverse employment action when she merely "thought" or "felt" that her employer had terminated her. (Doc. 26 at 12-13 (citing Wilson, 2013 WL 2256133, at *5)). During a telephone call, Wilson's supervisor "essentially told her that when she gives in to his sexual demands, he would give her hours." Wilson, 2013 WL 2256133, at *5. The court granted summary judgment to Wilson's employer as to her discriminatory discharge claim, concluding that Wilson presented no evidence other than "her own interpretation of [her supervisor's] comments, to show that her employment ... was actually terminated" during the telephone call. Id. The court also observed that Wilson's "professed belief that she was terminated" was belied by the fact that she returned to the restaurant the very next day, and once more thereafter, to check her schedule. See id.
Patel's comments and actions sub judice convey an immediacy and finality that was lacking from the employer's comments in Wilson. Patel commanded Barber to leave the premises immediately following her anxiety attack, (Doc. 28 ¶¶ 17-19; also Doc. 28 (counter-statement) ¶ 27 (citing Barber Dep. 67:23, 69:18-70:9)), and told Barber that he saw no point in continuing her training, (Doc. 28 ¶ 19; also Doc. 28 (counter-statement) ¶ 26 (quoting Barber Dep. 66:15-67:19)). Barber knew that continued training was a requirement for the job. (Doc. 28 (counter-statement) ¶¶ 26, 29 (quoting Barber Dep. 68:6-21)). Moreover, despite Subway's position that Patel did not fire Barber, Patel never contacted Barber to ask whether or when she was returning to work. (See Doc. 28 (counter-statement) ¶¶ 31-32 (citing Barber Dep. 68:22-69:8)). Barber testified that she did not return to work or contact Patel because she believed she had been fired.
The court finds that the record contains ample evidence from which a jury could reasonably conclude that Patel terminated Barber's employment immediately following her anxiety attack on June 12, 2012. To the extent Barber's account of the events of June 12, 2012 differs from Subway's, the court must construe the Rule 56 record in favor of Barber as the non-moving party. See Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir.2005) ("On a motion for summary judgment,
Barber also asserts failure to accommodate and retaliation claims against Subway arising out of the events of June 12, 2012. (See Doc. 1 ¶¶ 25-29). It is well-settled that adverse employment decisions under the ADA include an employer's failure or refusal to reasonably accommodate an individual's disability. See 42 U.S.C. § 12112(b)(5)(A) (providing that "the term `discriminate against a qualified individual on the basis of disability' includes... not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability"); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999) ("Discrimination under the ADA encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also includes failing to make reasonable accommodations for a plaintiff's disabilities."). A failure to accommodate violates the ADA unless the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of the business." 42 U.S.C. § 12112(b)(5)(A).
To prevail on a retaliation claim, Barber must prove that: (1) she engaged in a protected activity; (2) Subway subjected her to an adverse employment action; and (3) "a causal connection [existed] between" Barber's protected activity and the adverse employment action. Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 759 (3d Cir.2004) (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir.2002)). Retaliation claims are distinct from discrimination claims in that they do not require a plaintiff to prove that he or she has an actual disability; rather, a plaintiff need only show that he or she requested an accommodation in good faith. See Shellenberger, 318 F.3d at 187. Protected activity "includes retaliation against an employee for requesting an accommodation." Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 188-89 (3d Cir.2010) (citing Shellenberger, 318 F.3d at 191).
As to both claims, Subway echoes its contention that Patel did not terminate Barber's employment on June 12, 2012, but rather granted her request to leave work early in the wake of an anxiety attack. (Doc. 26 at 17-19). Regarding Barber's failure to accommodate claim, Subway asserts that "Subway agreed to, and did in fact, accommodate [Barber's] request to take time off work in the event her anxiety occurred while she was working."
Assuming the truth of Barber's account, and drawing all reasonable inferences therefrom, the record would permit a reasonable jury finding that (1) Subway failed to reasonably accommodate Barber's request for a break in the immediate wake of an anxiety attack and (2) Subway terminated Barber in direct response to her request for an accommodation. (See Doc. 28 ¶¶ 17-19; see also Doc. 28 (counter-statement) ¶¶ 26-27 (citing Barber Dep. 67:23, 69:18-70:9)). Because resolution of these claims, like Barber's discrimination claim, turns on manifest and material factual disputes, summary judgment as to either is inappropriate. The court will deny Subway's motion as to Barber's failure to accommodate and retaliation claims.
Barber's PHRA claims are properly analyzed under the same standard as her ADA claims.
For the reasons stated herein, the court will deny Subway's motion (Doc. 24) for summary judgment.
AND NOW, this 18th day of September, 2015, upon consideration of the motion (Doc. 24) pursuant to Federal Rule of Civil Procedure 56(a) by defendant Subway, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
In response to Subway's Rule 56.1 statement, Barber filed an omnibus document containing both a response to Subway's statement of facts, (Doc. 28 at 46), and a separate counter-statement of material facts, (Doc. 28 at 1-4), the latter of which is non-responsive to Subway's statement and is neither contemplated nor permitted by the Local Rules. See LOCAL RULE OF COURT 56.1 (requiring movants to file a statement of facts and non-movants to file a statement "responding to the numbered paragraphs" of the movant's statement); see also Sash v. Hogsten, No. 07-cv-475, 2009 WL 249649, at *2 (M.D.Pa. Feb. 2, 2009) (Rambo, J.) (noting that Rule 56.1 "does not provide for a non-moving party to file his own statement of material facts but instructs the non-moving party how to properly respond to the movant's statement of material facts"). The court declines to consider the counter-statement of facts in the manner contemplated by Local Rule 56.1. Nonetheless, because Barber incorporates the counter-statement into her responsive statement and relies exclusively on the evidence cited therein in opposing Subway's motion, the court must utilize the document as a conduit to both access and navigate the record evidence upon which Barber relies. Unless otherwise noted, citations to "Doc. 28 ¶ ___" herein refer to Barber's Rule 56.1 responsive statement of facts.
