EDUARDO C. ROBRENO, District Judge.
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.
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."
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."
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.
Plaintiff's ADA and PHRA discrimination and retaliation claims and her FMLA and Workers' Compensation retaliation claims all utilize the familiar
Under the
In order to establish a prima facie case of disability discrimination, Plaintiff must show: "(1) she is disabled within the meaning of the ADA; (2) she is otherwise qualified to perform the essential functions of the job; and (3) she has suffered an adverse employment decision because of discrimination."
When a discrimination claim is based on an alleged failure to accommodate a disability, the adverse employment action may be "an employer's failure to make `reasonable efforts to assist the employee and to communicate with the employee in good faith, under what has been termed a duty to engage in the interactive process.'"
However, while "an employer has a duty to offer a reasonable accommodation to a qualified employee, `an employee cannot make [the] employer provide a specific accommodation if another reasonable accommodation is instead provided.'"
Plaintiff's primary argument is that Defendant failed to reasonably accommodate her because it would not allow her to work from home two days per week. As provided, Plaintiff is not entitled to the accommodation of her choosing. Instead, the evidence, viewed in Plaintiff's favor, establishes that Defendant engaged in a good faith reasonable attempt to accommodate Plaintiff. It is undisputed that Defendant provided all recommended accommodations except for working from home two days per week. Instead, Defendant provided Plaintiff with a reduced three-day work schedule, which was specifically suggested by her physicians multiple times as a viable accommodation option.
The Court concludes that a reduced work schedule under these circumstances is a reasonable accommodation.
While the reasonableness of an employer's actions is generally a fact question, no rational jury could conclude that, by providing the accommodations suggested by Plaintiff's physicians, which allowed her to eventually return to full-time work, Defendant did not act reasonably.
Plaintiff also asserts that Defendant somehow delayed in engaging in the interactive process. The evidence, however, shows that Plaintiff started working from home directly after providing Defendant with the note from Dr. Allen and then transitioned into working a three-day week. The facts, viewed in Plaintiff's favor, show no unreasonable delay in Defendant's engagement in the interactive process or discussion of accommodations with Plaintiff.
Plaintiff has failed to establish a prima facie case of discrimination based on Defendant's refusal to allow her to work from home part-time because the evidence shows that Defendant made a good faith effort to reasonably accommodate her.
Plaintiff also alleges that Defendant acted discriminatorily by: forcing her to use her paid time off before allowing her to use unpaid FMLA leave; removing projects from her; Buchman yelling at her once; and other Project Managers questioning the need for her accommodations and accusing her of faking her disability. These claims are more properly addressed as claims of retaliation and will be discussed in that context below.
Because Plaintiff has failed to proffer a discriminatory adverse employment action and, thus, has failed to establish a prima facie case of discrimination, the Court declines to address Defendant's legitimate non-discriminatory reasons for its actions or whether the actions were pretextual.
Prima facie claims of retaliation under the ADA, the PHRA, the FMLA, and Pennsylvania Workers' Compensation law, require the plaintiff to establish: (1) a protected employee activity; (2) an "adverse action by the employer either after or contemporaneous with the employee's protected activity;" and (3) "a causal connection between the employee's protected activity and the employer's adverse action."
Most, if not all, of Plaintiff's assertions of retaliation are not adverse employment actions and, thus, cannot support a prima facie case. The Third Circuit has described an adverse employment action as an action by an employer "that is `serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.'"
Plaintiff's main argument is that Defendant retaliated against her by refusing to provide her preferred accommodation — working from home two days per week. However, as discussed above, this refusal cannot be an adverse employment action since Plaintiff was provided with legally adequate alternative accommodations which kept her working and eventually allowed her to return to full-time employment.
Plaintiff additionally contends that she was retaliated against for filing her disability, FMLA, and Workers' Compensation claims in that: she was required to exhaust her paid time off and sick leave before being allowed to use unpaid FMLA leave; she was removed from several projects; she was yelled at once by Buchman because her calendar was inaccessible to her supervisors; Dausch was frustrated with her need for accommodations; other unidentified Project Managers thought she was faking her disability; and Defendant altered her work hours.
Initially, being yelled at once, superiors expressing frustration, and having other employees question one's truthfulness do not alter one's "compensation, terms, conditions, or privileges of employment." Therefore, they are not adverse employment actions.
Moreover, requiring Plaintiff to exhaust her paid time off and sick leave before allowing her to use unpaid FMLA leave is contemplated under the regulations and is considered a reasonable accommodation under the law. 29 C.F.R. pt. 32, App. A (providing that employers "may be required to grant liberal time off or leave without pay when paid sick leave is exhausted"); 29 C.F.R. pt. 1630, App. ("accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment");
Regarding the remaining alleged adverse employment actions, viewed in the light most favorable to Plaintiff, the Court concludes that in the right context, (1) removing Plaintiff from several projects; and (2) altering her work hours could be considered adverse employment actions. However, the Court concludes that, under the facts of this case, these actions are not adverse since they did not affect Plaintiff's compensation or the terms and conditions of her employment.
Once a plaintiff proffers a prima facie retaliation claim, the defendant must provide a legitimate, nondiscriminatory reason for the adverse employment action.
Moreover, Plaintiff has failed to provide any evidence suggesting that this reason was merely pretext for discrimination.
"An [FMLA] interference action is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA."
Although Plaintiff was not denied any FMLA benefits, she contends that Defendant interfered with her FMLA rights by forcing her to use FMLA leave two days per week rather than giving her her preferred accommodation of working from home those two days. Plaintiff relies on the Sixth Circuit case
Plaintiff does not deny that she had a serious health condition that required accommodation, nor was she denied leave at a later date. As a result, to the extent that an "involuntary-leave" FMLA interference claim is actionable in the Third Circuit, it fails under these facts.
Plaintiff also brings a hostile work environment claim. In order to establish a prima facie hostile work environment claim under the ADA, a plaintiff must establish that:
Plaintiff contends that the following conduct created a hostile work environment: (1) being yelled at once by Buchman because Plaintiff's calendar was inaccessible to her supervisors; (2) having projects taken away from her; (2) having her hours altered; (3) not being given her chosen accommodation of working from home and, instead, being forced to take off two days per week; (4) other unidentified Project Managers thought she was faking her disability; and (5) Defendant ignored requests for accommodations, failed to provide her with information, and failed to engage in the interactive process.
First, many of these complaints are simply rebrands of Plaintiff's ADA/PHRA discrimination claims and have been discussed previously. The accommodation of a three-day work week and the necessary reassignment of projects and altered schedule are all reasonable. Moreover, it is objectively false based on the proffered evidence that Defendant ignored Plaintiff's requests for accommodations or failed to engage in the interactive process in good faith.
As a result, Plaintiff is left with being yelled at once, general undescribed uncomfortable interactions with her superiors, and having other Project Managers allegedly questioning her truthfulness. As a matter of law, this conduct is not objectively severe or pervasive enough to establish a prima facie claim of an ADA hostile work environment.
For the reasons set forth above, the Court will grant Defendant's motion for summary judgment, entering judgment in its favor and against Plaintiff.
An appropriate order follows.
