Filed: Mar. 05, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-5-2009 Paula Pagonakis v. Express LLC Precedential or Non-Precedential: Non-Precedential Docket No. 08-1753 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Paula Pagonakis v. Express LLC" (2009). 2009 Decisions. Paper 1774. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1774 This decision is brought to you for free and open access b
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 3-5-2009 Paula Pagonakis v. Express LLC Precedential or Non-Precedential: Non-Precedential Docket No. 08-1753 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Paula Pagonakis v. Express LLC" (2009). 2009 Decisions. Paper 1774. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1774 This decision is brought to you for free and open access by..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-5-2009
Paula Pagonakis v. Express LLC
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1753
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Paula Pagonakis v. Express LLC" (2009). 2009 Decisions. Paper 1774.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1774
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1753
PAULA PAGONAKIS,
Appellant
v.
EXPRESS LLC,
also known as Limited Brands, Inc.
Appeal from the Judgment of the District Court
for the District of Delaware
(District Court Civil Action No. 06-027)
Argued February 3, 2009
Before: McKEE, STAPLETON, Circuit Judges, and IRENAS,* Senior District Judge.
(Filed : March 5, 2009)
Jason H. Ehrenberg, Esq. (Argued)
Bailey & Ehrenberg PLLC
1155 Connecticut Avenue, NW
Suite 1100
Washington, DC 20036
Counsel for Appellant
*
The Honorable Joseph E. Irenas, Senior United States District Judge for the District
of New Jersey, sitting by designation.
Andrew C. Smith, Esq. (Argued)
David A. Campbell, Esq.
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
P.O. Box 1008
Columbus, OH 43216-0000
Francis G.X. Pileggi, Esq.
Sheldon K. Rennie, Esq.
Fox Rothschild LLP
One Citizens Bank Center, Suite 1300
919 N. Market Street, P.O. Box 2323
Wilmington, DE 19899
Counsel for Appellee
OPINION
IRENAS, Senior United States District Judge.
Appellant Paula Pagonakis, a former employee of Appellee Express LLC, appeals
the District Court’s decision granting summary judgment to Express on her employment
discrimination and retaliation claims under the Americans with Disabilities Act (ADA),
42 U.S.C. § 12101 et seq., and her retaliation claim under the Family Medical Leave Act
(FMLA), 29 U.S.C. § 2601 et seq. Because disputed issues of material fact exist as to
whether Pagonakis could perform the essential functions of her position, and whether she
suffered an adverse employment action, we will reverse the grant of summary judgment
and remand the case as to the ADA discrimination claim. We will affirm the grant of
summary judgment on the retaliation claims.
2
I.
Pagonakis’ claims arise out of her employment at the Express clothing store in the
Christiana Mall in Newark, Delaware, from June 2000 through March 2004. She began
as a part-time salesperson there, after she transferred from another Express store in Ohio,
where she was also a part-time salesperson. According to Pagonakis, upon her transfer,
she “discussed” her medical conditions1 with the Christiana Store Manager, Kristyn
Bosley (Pagonakis’ immediate supervisor), and the District Manager, Ana Klancic, who
also had supervisory authority over Pagonakis. (JA 296) Express disputes that
Pagonakis told management about her specific impairments. They assert that she only
asked for certain accommodations. It is undisputed, however, that Klancic allowed
Pagonakis the requested accommodations which were: periodic breaks during a shift to
allow Pagonakis to rest; scheduling Pagonakis on daylight shifts only (she cannot drive
when it is dark or when it is raining, snowing or foggy); not assigning her to climbing
tasks; not scheduling her to work for more than three to four days in a row; and
periodically allowing her to work from home to compensate for the times when she could
not drive to work due to weather.
1
Several years prior to Pagonakis’ employment with Express, she suffered a closed
head injury during a car accident. As a result of this injury, she allegedly suffers from
“persistent vertigo,” and at times becomes disoriented or “lose[s] [] equilibrium” when
exposed to bright or moving lights. (JA 294) She also claims to have trouble reading and
processing auditory stimuli, and suffers from fibromialgia. Though Express disputes
these assertions, they did not move for summary judgment on the issue of Pagonakis’
disability, and therefore it may be assumed that Pagonakis is “disabled” under the ADA,
see 29 C.F.R. § 1630.2(g), for the purposes of this appeal.
3
In March 2002, Klancic promoted Pagonakis to the full-time, salaried position of
Brand Sales Leader, which is described as a “quasi-managerial position.” (JA 296)
After this promotion, Pagonakis asserts that various “store personnel” began making
“off-hand[] comments” “about [her] disabilities and about their view that [she] was not
‘management material’ because of [her] disabilities.” (JA 296) Pagonakis states that she
complained to Klancic about the comments, and that Klancic advised Pagonakis to avoid
the people making the comments. It is undisputed that Pagonakis’ accommodations
remained in place after her promotion.
In June 2003, Klancic promoted Pagonakis again; this time to the full-time
salaried position of Co-Manager. Pagonakis’ accommodations continued. Klancic states
that she “agreed to keep [Pagonakis’] workplace accommodations in place at this time
because I wanted to encourage [her] to remain part of our team.” (JA 306) Klancic
further states that she considered Pagonakis “an asset.” (Id.)
Then, in late October or early November 2003, Pagonakis’ accommodations came
to the attention of Express’ human resources department. Human resources advised
Klancic that Pagonakis’ accommodations could not continue unless proper medical
documentation was submitted and the requisite approvals were obtained through
Express’ formal approval process. According to Pagonakis, her accommodations ceased
in November 2003-- her schedule changed to include evening shifts and meetings, and
she was assigned to work five to six days in a row. (JA 298) Klancic also testified that
4
Express eliminated special scheduling for all employees, including Pagonakis, at this
time. Express denies that it ever stopped providing accommodations to Pagonakis.
Pagonakis states that at a November 25, 2003 meeting, Tara Kessler, Regional
Human Resources Generalist for Express, explained that Klancic was not authorized to
grant Pagonakis accommodations and that Pagonakis would need to submit medical
documentation to human resources in order to reinstate the accommodations. Pagonakis
asserts that she had presented doctors reports to Express in the past and that she tried to
submit medical records to Kessler at the meeting, but Kessler refused to accept the
documents. According to Pagonakis, Kessler directed her to contact the HR department
within 24 hours to submit the paperwork.
According to Pagonakis, in December, 2003 she began to suffer from “extreme
fatigue, exhaustion, and stress” because she was forced to work without her previous
accommodations. (JA 299) She took her first FMLA leave from December 8 or 9
through December 22, 2003.
On December 23, 2003, Pagonakis’ first day back from leave, her doctor
submitted a one-page list of requested accommodations, but no documents regarding her
disabilities or medical history. Pagonakis states in her declaration, “Defendant accepted
this information and informed me that I had provided all necessary information.” (JA
299)
Also upon her return from leave, Pagonakis asserts that she was subjected to a
5
hostile work environment as a result of taking leave. Specifically, she states that “my
supervisors and co-workers treated me in a disparaging manner, including by making
rude comments to me . . . [and] frequently criticizing me for taking FMLA leave and
humiliated me by overriding my directions to subordinate employees.” (JA 299)
Pagonakis asserts that this treatment, and Express’ continuing failure to provide her with
the previous accommodations, forced her to take a second period of FMLA leave on
February 3, 2004.
Pagonakis never returned to work. She resigned on March 18, 2004. Pagonakis
states in her certification, “[a]s of [my resignation date] Defendant still had not located
my personnel file, still had not contacted my physician to discuss my medical conditions
and potential accommodations, still had not communicated with me about my request for
workplace accommodations, and still had not made efforts to reasonably accommodate
my disabilities.” (JA 300)
Pagonakis filed the instant complaint against Express asserting three claims:
discrimination under the ADA; retaliation under the ADA; and retaliation under the
FMLA. Express moved for summary judgment, attacking all three claims on the merits.
The District Court granted the motion in its entirety. See Pagonakis v. Express, LLC,
534 F. Supp. 2d 453 (D. Del. 2008).
The District Court held that Pagonakis could not establish a prima facie case of
discrimination under the ADA, because no reasonable factfinder could conclude that
6
Pagonakis could perform the essential functions of the Co-Manager position with
reasonable accommodations. Pagonakis, 543 F. Supp. 2d at 460-63.
The District Court also held that Pagonakis failed to establish a prima facie case
of discrimination under the ADA because neither Express’ asserted failure to
accommodate, nor Pagonakis’ constructive discharge were actionable adverse
employment actions. Pagonakis, 543 F. Supp. 2d at 464. With respect to Express’ failure
to accommodate, relying on its previous essential functions analysis, the District Court
concluded that there were no reasonable accommodations that would allow Pagonakis to
adequately perform the Co-Manager position.
Id. at n.14. As to the constructive
discharge allegations, the District Court concluded that no reasonable jury could find the
off-hand rude comments and other actions of Pagonakis’ supervisors and co-workers
sufficiently severe or pervasive to constitute a hostile work environment justifying her
resignation.
Id. at 464.
As to the two retaliation claims under the ADA and FMLA, the District Court
relied on its previous analysis that no reasonable juror could find an adverse employment
action. Pagonakis, 534 F. Supp. 2d at 465.
This appeal followed.2
2
The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291. We apply a plenary standard of
review. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006).
7
II.
A.
“A disabled employee may establish a prima facie case under the ADA if she
shows that she can perform the essential function[s] of the job with reasonable
accommodation and that the employer refused to make such an accommodation.” Turner
v. Hershey Chocolate USA, 440 F.3d 604, 610 (3d Cir. 2006). Pagonakis “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.”
Id. at 611. As noted previously,
the issue of Pagonakis’ disability is not before the Court.
A “qualified individual” is a person “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. 29 C.F.R. § 1630.2(m). The parties do not dispute the first
prong of the inquiry.
“Whether a particular function is essential is a factual determination that must be
made on a case by case basis based upon all relevant evidence.” Turner, 440 F.3d at 612
(internal citation, quotation, and alterations omitted). A duty is an “essential function” of
8
the job if it is “fundamental,” and not “marginal,” to the employment position. 29 C.F.R.
§ 1630.2(n)(1). “A job function may be considered essential for any of several reasons,
including, but not limited to, the following:
(i) The function may be essential because the reason the position exists is to
perform that function;
(ii) The function may be essential because of the limited number of employees
available among whom the performance of that job function can be distributed;
and/or
(iii) The function may be highly specialized so that the incumbent in the
position is hired for his or her expertise or ability to perform the particular
function.
Turner, 440 F.3d at 612 (citing 29 C.F.R. § 1630.2(n)(2)). Evidence of whether a
particular function is essential might include, but is not limited to:
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing
applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
29 C.F.R. § 1630.2 (n)(3).
Because there are disputed issues of material fact as to the essential functions of
9
the Co-Manager position, we cannot agree with the District Court’s conclusion that no
reasonable jury could find that Pagonakis was a qualified individual. As a general matter,
Pagonakis was promoted to Co-Manager by Klancic– the very person who granted
Pagonakis her accommodations in the first place. Drawing a reasonable inference in
favor of Pagonakis, a jury could find that Klancic would not have promoted Pagonakis to
Co-Manager if her accommodations (which were in place at the time of her promotion)
were inherently incompatible with the essential functions of the position.
Moreover, while Express asserts that opening and closing the store is an essential
function of the Co-Manager position, the record evidence suggests otherwise. First,
according to Express’ own witness, Human Resources Manager Jennifer Hinkle, there is
always a Manager, in addition to at least one Co-Manager on duty, and that Manager (or
the second Co-Manager, if there was one on duty) would be able to open and close the
store. Indeed, Klancic testified to this very fact:
Q: And [other Co-Managers would] have to close when Ms. Pagonakis
couldn’t close?
A: But there was always more than one manager working so there wasn’t [sic]
any additional people needed to come in.
(JA 210-11) Cf. 29 C.F.R. § 1630.2 (n)(3)(iv) (evidence of whether a function is essential
includes “[t]he consequences of not requiring the incumbent to perform the function.”).
10
Second, Klancic testified that there were “a lot” of co-managers (JA 336 3 ),
suggesting that the pool of people who could open or close the store was not dramatically
limited by Pagonakis’ elimination from the pool. Cf. Turner, 440 F.3d at 612 (“The
function may be essential because of the limited number of employees available among
whom the performance of that job function can be distributed.”).
Third, Pagonakis asserts that she never was given keys to the store or trained to be
a key holder. A reasonable factfinder might infer that she was not given training or keys
to the store because she did not need training or keys– i.e., someone else could open and
close the store.
Similarly, issues of disputed fact exist as to whether working in the store 40 hours
a week (as opposed to working from home some hours) is an essential function, as
Express asserts. First, as noted before, a reasonable factfinder might infer that Klancic
would not have promoted Pagonakis if working 40 hours in the store was an essential
function of the Co-Manager. Second, Jennifer Hinkle states that she needed to budget
additional coverage for the morning and evening hours when Pagonakis could not be at
the store, but she does not explain why extra coverage was needed, or what duties (other
than opening and closing the store) must be performed during the mornings or evenings,
as opposed to other times of the day. Third, Klancic identified work tasks that Pagonakis
performed from home (such as drafting the district newsletter and checking employee
3
“Q: There were a lot of co-managers, weren’t there? A: Yes. Q: A good number of
them? A: Yes.” (JA 336)
11
references), which a reasonable jury could find undermines Express’ contention that it
was paying Pagonakis a salary based on 40 hours of work but Pagonakis’
accommodations precluded her from working 40 hours a week.
Thus, factual disputes as to the essential functions of the Co-Manager position
preclude a holding that no reasonable jury could find that Pagonakis was a qualified
individual under the ADA. The District Court erred in holding otherwise.
Factual disputes also exist as to whether Pagonakis suffered an adverse
employment action; namely, Express’ asserted failure to reasonably accommodate her
disability.4 Pagonakis and Klancic testified that in November 2003 Express ceased
accommodating Pagonakis, but Express denies that it ever stopped accommodating her.
Express’ Human Resources manager states that “Express ultimately determined that it
would provide the requested accommodations because [Pagonakis] had been
accommodated in this manner for several years.” (JA 79) (emphasis added).
For the reasons stated above, Pagonakis has raised genuine issues of disputed fact
as to her prima facie case of discrimination under the ADA. Accordingly, the District
Court’s grant of summary judgment on this claim will be reversed.
4
Pagonakis also asserts that she was constructively discharged. We agree with the
District Court that the alleged hostile work environment which she asserts forced her to
resign was not sufficiently severe or pervasive to constitute an adverse employment
action. See Pagonakis, 534 F. Supp. 2d at 464. However, for the reasons discussed
herein, her ADA discrimination claim may nonetheless proceed on her failure to
accommodate theory. To the extent Pagonakis asserts that Express’ alleged failure to
accommodate, rather than a hostile work environment, resulted in her constructive
discharge, she may present that theory to a jury.
12
B.
Pagonakis also asserts that Express’ alleged discontinuance of her
accommodations was in retaliation for her taking FMLA leave.5 The District Court
properly granted summary judgment to Express on this claim 6 because no reasonable jury
could find that Pagonakis’ accommodations stopped as a result of her taking FMLA
leave. See Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004)
(to establish a prima facie case of retaliation under the FMLA, a plaintiff “must show that
(1) [s]he took an FMLA leave, (2) [s]he suffered an adverse employment decision, and
(3) the adverse decision was causally related to [her] leave.”). It is undisputed that
Pagonakis took both of her FMLA leaves after Express allegedly stopped accommodating
her. Indeed, Pagonakis asserts that the alleged failure to accommodate her disabilities
caused her to take medical leave. Logically, Express could not have retaliated on ths
basis of events that had yet to occur. Accordingly, we will affirm the judgment for
Express on the FMLA retaliation claim.
C.
5
To the extent Pagonakis asserts that her asserted constructive discharge was in
retaliation for taking FMLA leave, we have already held that the alleged harassment
Pagonakis suffered was not sufficiently severe or pervasive to be actionable. See supra
note 4.
6
Pagonakis’ brief in support of this appeal asserts that Pagonakis suffered direct
discrimination under the FMLA in addition to retaliation. However, the Complaint
clearly asserts only an FMLA retaliation claim and not an FMLA discrimination claim.
13
Lastly, we will also affirm the judgment for Express on the ADA retaliation claim.
As already articulated, Pagonakis’ hostile work environment / constructive discharge
claim fails. While we have held that disputed issues of fact preclude summary judgment
on her failure to accommodate theory, such a claim cannot be characterized as a
retaliation claim under the ADA. The claim is a direct discrimination claim based on
alleged failures to fulfill the affirmative duties prescribed by the ADA, see generally US
Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002) (“the ADA says that ‘discrimination’
includes an employer’s ‘not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified . . . employee . . .’”) (quoting 42 U.S.C. §
12112(b)(5)(A); emphasis omitted); not a claim based on alleged actions prohibited by the
ADA, see 42 U.S.C. 12203(a) (prohibition against retaliation).
III.
For the reasons set forth above, the District Court’s judgment for Express on
the failure to accommodate ADA discrimination claim will be reversed and the case
remanded for further proceedings consistent with this opinion. The judgment of the
District Court will be affirmed in all other respects.
14
