Colonna v. Upmc Hamot et al

BRIEF in Opposition re Motion for Summary Judgment

W.D. Pa.February 16, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ____________________________________ JESSICA COLONNA : : CIVIL ACTION : Plaintiff, : No.: 16-0053 : v. : : UPMC HAMOT : and : UPMC : : Defendants. : ____________________________________: PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Plaintiff, Jessica Colonna (“Ms. Colonna” or “Plaintiff) by and through her undersigned counsel hereby submits this Brief in Response to Defendants’ Motion for Summary Judgment. Respectfully Submitted, KARPF, KARPF & CERUTTI, P.C. /s/ Zachary J. Zahner Zachary J. Zahner, Esq. 3331 Street Road Two Greenwood Square Suite 128 Bensalem, PA 19020 Counsel for Plaintiff 215-639-0810 Date: February 15, 2017 Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 1 of 40 2 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ____________________________________ JESSICA COLONNA : : CIVIL ACTION : Plaintiff, : No.: 16-0053 : v. : : UPMC HAMOT : and : UPMC : : Defendants. : ____________________________________: ORDER AND NOW, this ____ day of ____________________, 2016, after consideration of Defendants’ Motion for Summary Judgment and Plaintiff’s Response in Opposition thereto, it is hereby ORDERED and DECREED that Defendants' Motion is DENIED in its entirety. ____________________________________ J. Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 2 of 40 1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ____________________________________ JESSICA COLONNA : : CIVIL ACTION : Plaintiff, : No.: 16-0053 : v. : : UPMC HAMOT : and : UPMC : : Defendants. : ____________________________________: PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION Plaintiff, Jessica Colonna (“Plaintiff” or “Ms. Colonna”), brings the following suit against UPMC Hamot and UPMC for violations of the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”), alleging Defendant 1) failed to accommodate her requests for accommodations; 2) discriminated against her based on her disability; 3) retaliated against her because of her requests for an accommodation/FMLA leave. II. STATEMENT OF FACTS Plaintiff hereby incorporates, the statement of facts set forth in her Statement of Material and Disputed Facts (hereinafter “PSOF at ¶___”) which was filed along with this legal brief. III. LEGAL ANALYSIS A. Summary Judgment Standard Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 3 of 40 2 genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, “a court does not resolve factual disputes or make credibility determinations, and must view facts and inferences in the light most favorable to the party opposing the motion.” Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). The moving party bears the burden of proving that no genuine issue of material fact is in dispute. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). A genuine issue is established if a reasonable jury could return a verdict for the non-moving party based on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). “[O]n summary judgment, the inferences to be drawn from the underlying facts … must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-588 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). “In employment discrimination cases, the summary judgment standard is ‘applied with added rigor’ because ‘intent and credibility are crucial issues.’” Walden v. St. Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) quoting Stewart v. Rutgers, State Univ., 120 F.3d 426, 431 (3d Cir. 1997). 1 B. Ms. Colonna can persuasively establish her disability/perceive disability under the ADAAA. Under the ADA, disability discrimination claims are evaluated under the familiar 1 “Employment discrimination cases center around a single question: why did the employer take an adverse employment action against the plaintiff? Because this ‘is clearly a factual question,’ Chipollini, 814 F.2d at 899, summary judgment is in fact rarely appropriate in this type of case. Simply ‘by pointing to evidence which calls into question the defendant’s intent, the plaintiff raises an issue of material fact which, if genuine, is sufficient to preclude summary judgment.’ Id. Marzano v. Computer Science Corp., 91 F.3d 497, 509-10 (3d Cir. 1996). Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 4 of 40 3 McDonnell Douglas burden-shifting paradigm. In order to make out a prima facie case of discrimination under the ADA, thereby satisfying the first prong of the McDonnell Douglas burden-shifting paradigm, a Plaintiff must be able to establish that she: (1) has a disability; (2) is a qualified individual; and (3) has suffered an adverse employment action because of that disability. Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998) (citing Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998)). A plaintiff’s burden to establish a prima facie case “is not intended to be onerous.” Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). There is no talismanic formula for presenting a prima facie case. Jones v. School District of Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999)("the elements of a prima facie case depend on the facts of the particular case"). The relevant inquiry is whether the plaintiff has suffered an adverse employment action under circumstances which raise an inference of unlawful discrimination. Waldron, 56 F.3d at 494. Plaintiff's burden at this step is "minimal" and is viewed as a means of presenting a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. Id.; see also Furnco, 438 U.S. at 577; Pallatto v. Westmorland County Children's Bureau, 2014 U.S. Dist. LEXIS 27008, 13-14 (W.D. Pa. 2014). i. Ms. Colonna has presented sufficient evidence that she has a disability. The ADA defines a “disability” as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102 (2)(emphasis added). Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 5 of 40 4 On January 1, 2009, the ADA Amendments Act of 2008 (“ADAAA”) became effective. Pub.L. No. 110-325, 122 Stat. 3553. Before the 2008 ADA Amendments Act, the Supreme Court held that the term “substantially limited” needed “to be interpreted strictly to create a demanding standard for qualifying as disabled.” Toyota Motor Manufacturing, Kentucky, Inc., v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). In Cohen v. CHLN, Inc., 2011 U.S. Dist. LEXIS 75404 (E.D. Pa. 2011) (J, Buckwalter), the Court denied summary judgment to an employer explaining that the protections of the ADAAA are now exceedingly broad, stating: Whether an individual is substantially limited in a major life activity is a question of fact…Before Congress amended the ADA in 2008, the Supreme Court construed the Act strictly, finding that an individual was ‘substantially limited’ only if she had ‘an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.’ Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). The Court, citing the EEOC’s interpretation of the pre-amendment standard, further held that the impairment’s impact must be ‘permanent or long term.’ Id. In another leading ADA case, the Court dictated that the degree of limitation caused by an individual’s impairment should be determined with reference to the ameliorative effects of mitigating measures. Sutton v. United Airlines, Inc., 527 U.S. 471, 499, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). With the passage of the ADA Amendments Act of 2008 (“ADAAA”), however, Congress explicitly rejected Toyota and Sutton and increased the statute’s non- exhaustive list of ‘major life activities’ in an effort to promote a less restrictive interpretation of ‘disability.’ Pub.L. No. 110–325, §§ 2(b) (1)-(6), 3(2)(a), 122 Stat. 3553, 3555 (2008). In doing so, Congress declared that ‘[t]he definition of disability shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.’ Pub.L. No. 110– 325, § 3(a), 122 Stat. at 3555. To that end, the EEOC’s interpretation of the amended ADA notes that ‘substantially limits’ is ‘not meant to be a demanding standard.’ 29 C.F.R. § 1630.2(j)(1)(i) (2011). The Commission further opined that even ‘effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.’ Id. § 1630.2(j)(1)(ix). Moreover, the EEOC found that ‘whether an activity is a ‘major life activity’ is not determined by reference to whether it is of ‘central importance to daily life.’ Id. § 1630.2(i)(2). Rather, ‘the determination of whether an impairment substantially limits a major life activity requires an individualized assessment,’ and should ‘require a degree of functional limitation that is lower Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 6 of 40 5 than the standard for ‘substantially limits’ applied prior to the ADAAA.’ Id. § 1630.2(j)(1)(iv). Cohen, at * 6-7. (emphasis added).2 Although an impairment must substantially limit a major life activity, it need not "limit other major life activities in order to be considered a disability." 42 U.S.C. 12102 (4)(C). Furthermore, an impairment that is episodic or in remission need not have a permanent or long term impact to be considered a disability if it "substantially limit[s] a major life activity when it is active." Id. at 12102(4)(D); accord Britting v. Secretary, Dept. of Veterans Affairs, 409 Fed. Appx. 566, 568 (3d Cir. 2011); Pallatto v. Westmorland County Children's Bureau, 2014 U.S. Dist. LEXIS 27008, 29 (W.D. Pa. 2014).3 Ultimately, whether an individual is substantially limited as to a major life activity is a question of fact. Williams v. Philadelphia Hous. Auth. Police Dep't., 380 F.3d 751, 763 (3d Cir. 2004); Canfield v. Movie Tavern, Inc., 2013 U.S. Dist. LEXIS 173877, 12, 2013 WL 6506320 2 Thus, the ADAAA requires a "less searching analysis" of whether a plaintiff is "substantially limited." Kravits v. Shinseki, No. 10-861, 2012 U.S. Dist. LEXIS 24039, 2012 WL 604169, at *17 (W.D. Pa. 2012). The EEOC has noted that under the ADAAA, "substantially limits" is "not meant to be a demanding standard." 29 C.F.R. § 1630.2(j)(1)(i) and (iii). "Rather, 'the determination of whether an impairment substantially limits a major life activity requires an individualized assessment,' and should 'require a degree of functional limitation that is lower than the standard for 'substantially limits' applied prior to the ADAAA.'" Cohen v. CHLN, Inc., No. 10-514, 2011 U.S. Dist. LEXIS 75404, 2011 WL 2713737, at *7 (E.D. Pa. 2011); Riley v. St Mary Med. Ctr., 2014 U.S. Dist. LEXIS 57065, 20 (E.D. Pa. 2014). An impairment is an ADA disability when it "substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." 29 C.F.R. § 1630.2(j)(1)(ii). Indeed, the EEOC regulations promulgated under the ADA explain that "[a]n impairment need not prevent or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." Id. The EEOC regulations make clear that "[t]he term 'substantially limits' shall be construed broadly in favor of expansive coverage" and is to be interpreted relative to the capabilities of most people in the general population. 29 C.F.R. § 1630.2(j)(1)(i)-(ii); Hoffman v. Palace Entm't, 2014 U.S. Dist. LEXIS 40422, 21-22 (E.D. Pa. 2014); Balliet v. Scott's Auto Serv., 2013 U.S. Dist. LEXIS 45321, 14, 27 Am. Disabilities Cas. (BNA) 1521, 2013 WL 1285474 (E.D. Pa. 2013). 3 In addition, medical testimony is not necessarily required to establish a disability. Marinelli v. City of Erie, 216 F.3d 354, 360 (3d Cir. 2000) (citing Katz v. City of Metal Co., 87 F.3d 26, 32 (1st Cir. 1996)). If an impairment is one that is "amenable to comprehension by a lay jury," failure to present medical evidence in support of it is not dispositive. Marinelli, 216 F.3d at 360; Pallatto v. Westmorland County Children's Bureau, 2014 U.S. Dist. LEXIS 27008, 29-30 (W.D. Pa. 2014). Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 7 of 40 6 (E.D. Pa. 2013). Thus, the question of whether an individual suffers from a “disability” under the ADA is a factual issue, which must be resolved by a jury. Braverman v. Penobscot Shoe Company, 859 F.Supp. 596, 603 (D.Maine 1994); Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 569 (3d Cir. 2002) (question of whether an individual is substantially limited in a major life activity is a question of fact). Congress further mandated that the definition of disability “shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” Pub. L. 110-325 at § 3(4)(A). Whether or not it is a mitigating measure, a disability may continue even after surgery. See, e.g., Moore v. Chilton County Bd. of Educ., F. Supp. 2d, 2014 WL 813634, at *9 (M.D. Ala. Mar. 3, 2014) (R.56) (even post-surgery, individual with history of Blount’s Disease had some deformity and walked with a limp); Mengel v. Reading Eagle Co., 2013 WL 1285477, at *3–4 (E.D. Pa. Mar. 29, 2013) (balance problems related to brain-tumor surgery); Lloyd v. Housing Authority of the City of Montgomery, Ala., 857 F.Supp.2d 1252, 1263 (M.D. Ala. 2012) (“At bottom, the expanded definitions of “disability” and “major life activities” mean that treatable yet chronic conditions like hypertension and asthma render an affected person just as disabled as a wheelchair-bound paraplegic—if only for the purposes of disability law.”) Even medical conditions that are temporary or episodic can be considered a disability under the amended statute. Whereas prior to the ADAAA, the EEOC regulations and Third Circuit case law held that "permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment" was a relevant consideration, Specifically, Courts across the country have found that eye conditions and difficulty seeing and driving can constitute a disability. See Bob-Manuel v. Chipotle Mexican Grill, Inc., 12 C 750, 2014 WL 185978, at *16 (N.D. Ill. Jan. 15, 2014) (R.56) (eye disease interfered with vision, Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 8 of 40 7 prevented driving, caused headaches, made it difficult to read lengthy documents, and caused eye to leak fluid, and temporarily prevented vision in one eye); Eldredge v. City of St. Paul, 2011 WL 3609399, at *15–16 (D. Minn. Aug. 15, 2011) (plaintiff with permanent, progressive eye disease causing small blind spot negatively impacting central visual acuity was substantially limited in seeing); Pridgen v. Department of Public Works/Bureau of Highways, 2009 WL 4726619 n.17 (D. Md. Dec. 1, 2009) (“Under the ADA Amendments Act of 2008, a person who has lost sight in one eye but retains full use of his other eye is ‘disabled.’ Disability is to be construed ‘in favor of broad coverage . . . .”); Gil v. Vortex, LLC, 697 F. Supp. 2d 234, 239–240 and n.2 (D. Mass. 2010) (sufficient pleadings that monocular vision was an ADAAA disability based in part on dicta in Albertson’s and in part on EEOC statement in proposed regulations that “[s]omeone with monocular vision whose depth perception or field of vision would be substantially limited . . . need not also show that he is unable to perform activities of central importance to daily life.”); See, e.g., Gogos v. AMS Mechanical Systems, Inc., 737 F.3d 1170, 1173 (7th Cir. 2013) (R.12) (plaintiff sufficiently alleged that episode of very high blood pressure and intermittent blindness substantially limited his circulatory function and eyesight); Heiko v. Columbo Savings Bank, F.S.B., 434 F.3d 249, 256 (4th Cir. 2006) (stating, even pre-ADAAA, that ‘certain impairments are by their very nature substantially limiting: the major life activity of seeing, for example, is always substantially limited by blindness’); Smith v. Valley Radiologists, Ltd., 2012 WL 3264504, at *4 (D. Ariz. Aug. 9, 2012) (sufficient evidence that blind spots leaving only peripheral vision substantially limit reading and driving); Hutchinson v. Ecolab, Inc., 2011 WL 4542957, at *8–9 (D. Conn. Sept. 28, 2011) (rejecting pre-ADAAA case law and finding person prevented from driving was substantially limited in working); Wilson v. Pennsylvania State Police Dep't, 964 F. Supp. 898, 909 (E.D. Pa. 1997)(genuine issue of material fact as to Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 9 of 40 8 whether or not Plaintiff was substantially limited in the major life activity of seeing). “Additionally, since the passage of the ADAAA, major life activities include, but are not limited to, ‘caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.’42 U.S.C. § 12102(2)(A) (emphasis added).” Butler v. BTC Foods, Inc., No. CIV.A. 12-0492, 2014 WL 336649, at *3 (E.D. Pa. Jan. 30, 2014)(Restrepo, J). Moreover, the ADA amendments specifically state that Blindness substantially limits seeing. 29 C.F.R. § 1630.2(j)(3)(iii). “The determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices.” 29 C.F.R. Pt. 1630 App. § 1630.2(j). Ms. Colonna suffers from eye conditions which include Sjorgren’s Syndrome and Chronic allergic conjunctivitis. PSOF at ¶¶14-15. Accepting Ms. Colonna’s testimony as true, this conditions substantially limits here ability to see, read and drive because her eyes get really blurry at times. PSOF at ¶ 16. Ms. Colonna’s eye conditions also impacts her ability to walk as it is difficult when she cannot see. Moreover, it impacts her ability to work and read at times, due to the blurry vision. PSOF at ¶ 17. Ms. Colonna’s rheumatologist, Dr. Kenneth Gold, MD, diagnosed Ms. Colonna with Sjogren’s syndrome and also indicated that she was substantially limited in major life activities. He wrote the following: The above individual is under my care for a diagnosis of Sjogren’s syndrome. As a result of this disorder, she has unusually dry eyes which interfere with her vision, especially in the morning. As a result of this condition, she has difficulty seeing in the morning when she first awakens and therefore is dangerous for her to drive very early in the morning. Please allow her to start work at 9AM which Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 10 of 40 9 would allow her time for her eyes to adjust, for her to apply ocular moisturizers and would allow her to drive to work safely. See PSOF at ¶65. Defendants admit that this letter listed two major life activities that Ms. Colonna was substantially limited in. PSOF at ¶ 66. Defendants attempt to confuse the Court with their arguments. They allege that an April 6, 2015 letter stating that she could return to work without restrictions means she does not have a disability. This note was simply a return to work note, as she needed it to return to work after she received a biopsy. Appx. A (Pl. Dep.) at 49:21-50:10. Defendants seem to misunderstand the Amendments to the ADA, as they argue Ms. Colonna’s condition is transitory or minor. Emory v. AstraZeneca Pharmaceuticals, 401 F.3d 174, at 179-80 (3d Cir. 2005) explains that the updated regulations have removed that section and instead explicitly state that "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting." 29 C.F.R. § 1630.2(j)(1)(ix). Additionally, "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." Id. § 1630.2(j)(1)(vii). See Eastman v. Research Pharms., Inc., 2013 U.S. Dist. LEXIS 107935, 26-27, 2013 WL 3949236 (E.D. Pa.2013)(the temporal duration of plaintiff's back pain does not preclude a finding that plaintiff's back impairment "substantially limits" major life activities). Here, Ms. Colonna began suffering from this condition in the beginning of 2014. PSOF at ¶ 18. Ms. Colonna still suffers from this condition today. PSOF at ¶ 22. Moreover, Ms. Colonna substantially limits her in seeing, reading, walking, driving and working when her condition is active. PSOF at ¶14-22 The fact that her condition seems to mostly limit these major life activities in the morning has no bearing, as the regulations clearly state that if the condition is episodic, it is still a disability if it substantially limits the activities when active. Emory v. AstraZeneca Pharmaceuticals, 401 F.3d 174, at 179-80 (3d Cir. 2005); 29 C.F.R. § 1630.2(j)(1)(vii). Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 11 of 40 10 With all inferences in favor of Ms. Colonna, she has adduced sufficient evidence of how her health condition substantially limits major life activities to withstand summary judgment. ii. Ms. Colonna has adduced sufficient evidence that she was perceived as disabled. Under United States Supreme Court precedent, a Plaintiff who claims his employer regarded him as disabled must show that the employer regarded him as having a “substantially limiting impairment,” i.e., an impairment that would preclude a plaintiff from a broad range of jobs. Sutton v. United Airlines, 527 U.S. 471, 482, 119 S. Ct. 2139 (1999). The Third Circuit Court of Appeals has noted that, in making this determination, “it is the employer’s perception which matters, and not the employee’s actual limitations….” Vierra v. Wayne Mem. Hosp., 2006 U. S. App. LEXIS 3062 at * 10, n.3 (3d Cir. 2006). Under the ADAAA, an individual is “regarded as” having an impairment “if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C.A. 12102(a)(3)(A). “[E]ven an innocent misperception based on nothing more than a simple mistake of fact as to the severity, or even the very existence, of an individual’s impairment can be sufficient to satisfy the statutory definition of a perceived disability.” Deane v. Pocono Medical Center, 142 F.3d 138, 144 (3d Cir.1998); Fleck v. WILMAC Corp., 2011 WL 1899198, at *6 (E.D. Pa. 2011) (noting the “ADAAA’s de-emphasis on an employer’s beliefs as to the severity of a perceived impairment”). Defendants’ management was fully aware of Ms. Colonna’s condition. Lossie and Samueloff made the decision to terminate Ms. Colonna. PSOF at ¶ 101. Lossie admits that she became aware that Ms. Colonna started having an eye issue around May of 2014. Appx. B (Lossie Dep.) at 25:24-26:8. Lossie explained that “it was evident” that Ms. Colonna had an eye issue Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 12 of 40 11 specifically: “I don’t like eyes, so it was very evident that they were red and sore and oozing at that time.” Appx. B (Lossie Dep.) at 26:9-21. Lossie went on to describe Ms. Colonna’s eyes as “swollen, red eyelids, goopy. Almost compared to a severe case of pink eye is how I would relate that. It looked extremely uncomfortable.” Appx. B (Lossie Dep.) at 27:2-5. In June of 2014, she had a conversation with Ms. Colonna and her eyes were not getting better and seemed to be getting worse. Appx. B (Lossie Dep.) at 28:12-25. Lossie testified that she thought Ms. Colonna needed medical leave because “she was truly suffering from her eyes at the time and had no diagnosis and needed to seek treatment, and it was starting to, you know, impact her daily living.” Appx. B (Lossie Dep.) at 30:10-15. Lossie clearly thought Ms. Colonna would have trouble doing her job, she testified that she: knew Jess wasn’t getting better…she had so many drops, medications to put in her eyes, that I really though leaving the office, going part-time—actually staying away actually; ideally if she could have taken block time, but she couldn’t afford it, and just being away from the lights and the computers. I didn’t know what it was, and I’m certainly no medical person, but just to rest her eyes. And then the stress at home was building on that. So I don’t know if you want to be at home, but you certainly probably shouldn’t be here. Appx. B (Lossie Dep.) at 125:21-126:13. Samueloff did not learn of Ms. Colonna’s medical condition until after she issued Ms. Colonna her first corrective action (discussed infra) on Lossie’s behalf. At that time Ms. Colonna wrote a response to the corrective action informing her of her health condition and that she was applying for an accommodation. Appx. C (Samueloff Dep.) at 18:9-19, 20:7-11. Lossie and Samueloff admit they reviewed the medical note from Dr. Gold stating her diagnosis for Sjogren’s and requesting that Ms. Colonna be allowed to begin work at 9 a.m. Appx. B (Lossie Dep.) at 70:13-71:19; Appx. C (Samueloff Dep.) at 22:11-23:1, 26:10-19 28:4-11. Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 13 of 40 12 This evidence shows that Defendants believed Ms. Colonna’s “impacted her daily living” and Lossie went as far as to state that she did not even think Ms. Colonna should be working. Furthermore, Lossie and Samueloff admit they reviewed the medical note from Dr. Gold stating her diagnosis for Sjogren’s and requesting that Ms. Colonna be allowed to begin work at 9 a.m. Appx. B (Lossie Dep.) at 70:13-71:19; Appx. C (Samueloff Dep.) at 22:11-23:1, 26:10-19 28:4- 11. This note states that Ms. Colonna was limited in both seeing and driving. As such, Defendants perceived her as being substantially limited in a major life activities. Defendants did not argue that they did not perceive her as disabled, likely because if they were required to confront the record evidence, they knew they would not be able to dispute it. iii. Ms. Colonna was qualified to perform her job. An individual is otherwise qualified to perform the job in question if such an individual, “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 Third Circuit has established a two-prong test for determining whether someone is a qualified individual under the ADA. First, the Court must determine whether the individual satisfies the prerequisites for the position, by possessing the appropriate educational background, employment experience, skills and licenses. Second, the Court must determine whether the individual can perform the essential functions of the position, with or without a reasonable accommodation. Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998)[emphasis added]. This Honorable Court has held that an employee who requests to work from home can be a qualified employee. McIntyre v. Archuleta, No. 2:14-CV-00327, 2015 WL 4566730, at *4 (W.D. Pa. July 29, 2015)(J. Hornak). The employee was exhibiting fatigue due to her long commute and she was still qualified because she would have been able to continue to perform the Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 14 of 40 13 essential functions of her job with an accommodation. Id. at *8. The Court held that the fact finder could conclude she was qualified. Id. Ms. Colonna requested an accommodation in the form of a later start time. See PSOF at ¶¶ 55, 65. As such, Ms. Colonna would have been able to perform the essential functions of her job with this accommodation. If she had been granted these accommodations, she would not have been terminated as almost all of her absences were from her being late less than one half hour. As such, she would not have been terminated if she was provided with an accommodation. See PSOF at ¶¶ 91-98. Defendants seem to argue she was not a qualified individual because they would not have been able to accommodate her. Although this is not the standard required, Defendants management admitted that they would have been fine with accommodating a 9:00 a.m. start time and were fully capable of it. See PSOF at ¶¶ 83-84. Moreover, Defendants indicated that they would have been able to accommodate her by having her start at 9:00 a.m. and work late on either Monday or Thursday nights. Appx. B (Lossie Dep.) at 39:4-40:12, 44:23-45:21. Ms. Colonna offered to stay and work later every day of the week except for Monday (due to childcare issues). Appx. A (Pl. Dep.) at 45:16-21. Additionally, if Ms. Colonna would have been accommodated for the 9:00 a.m. start time, without working any extra hours, she would have went from 40 hours per week to 37.5 hours per week. Defendants made the same accommodation for an employee in a similar position as Ms. Colonna. Appx. Ex. B (Lossie Dep) at 100:8-11. Ms. Epperson was provided a schedule of 36 hours per week, rather than 40, simply because those are the hours she wanted to work. Ms. Epperson wanted to leave work early and Defendants accommodated her. PSOF at ¶ 90. Clearly, Ms. Epperson was qualified for the position working less hours, so Ms. Colonna would have been Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 15 of 40 14 as well. Like the Plaintiff in McIntyre, a jury could conclude that Ms. Colonna could have been able to perform the essential functions of her job with an accommodation. iv. Plaintiff can establish that Defendant’s reasons for her termination are pretextual Since Plaintiff’s pretext and causation arguments in regards to his disability discrimination claim is extremely similar to his pretextual argument regarding his retaliation claim, Plaintiff addresses both of these issues infra, at Section III.D.ii. C. Ms. Colonna can also persuasively establish that Defendants discriminated her based on her disability as they failed to accommodate her, when they did not engage in an interactive process in good faith In order to establish a violation of the ADA, a claim brought under failure to accommodate does not require any evidence or inference of intentional discrimination. To make out a prima facie case of failure to accommodate, a plaintiff must show that a request for a possible or plausible accommodation was made. If the plaintiff can so demonstrate, the burden shifts to the defendant to show that the proposed accommodation is unreasonable -- that is, that implementation of such an accommodation would cause the defendant to suffer an undue burden. Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995). The failure to provide reasonable accommodations, therefore, constitutes disability discrimination. See Alexander v. Choate, 469 U.S. 287, 295 (1985); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601, (1999); Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). An employer commits unlawful discrimination under the ADA if it does “not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 16 of 40 15 business of [the employer].” 42 U.S.C. § 12112(b)(5)(A). "Reasonable accommodation" additionally "includes the employer's reasonable efforts to assist the employee and to communicate with the employee in good faith," Mengine v. Runyon, 114 F.3d 415, 416 (3d Cir. 1997), under what has been termed a duty to engage in the "interactive process." Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004). "An employee can demonstrate that an employer breached its duty to provide reasonable accommodations because it failed to engage in good faith in the interactive process by showing that: '1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith.'" Williams, 380 F.3d at 772 (quoting Taylor, 184 F.3d at 319-20); Cunningham v. Nordisk, 2014 U.S. Dist. LEXIS 46400, 26- 27 (E.D. Pa. Apr. 1, 2014). The refusal to make reasonable accommodations for a plaintiff's disabilities constitutes as an adverse employment decision. Williams, 380 F.3d at 761; Pallatto v. Westmorland County Children's Bureau, 2014 U.S. Dist. LEXIS 27008, 28, 40-41 (W.D. Pa. 2014). Formalisms and the manner of request are irrelevant. Taylor, 184 F.3d at 313. What matters is that the employee provide sufficient information so that the employer is put on notice of both the disability and the requested accommodation(s). Id. Where an employee has notified the employer of a desire for an accommodation, the employer "cannot escape his duty to engage in the interactive process simply because the employee did not come forward with a reasonable accommodation that would prevail in litigation." Id. at 317; Pallatto v. Westmorland County Children's Bureau, 2014 U.S. Dist. LEXIS 27008, 40-41 (W.D. Pa. Mar. 3, 2014). Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 17 of 40 16 The ADA itself does not specifically provide that the employer has an obligation to engage in an interactive process, but the Third Circuit has established that good faith participation in an interactive process is an important factor in determining whether a reasonable accommodation exists. The court in Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 772 (3d Cir. 2004) explained the interactive process requirement as follows: [W]e have repeatedly held that an employer has a duty under the ADA to engage in an "interactive process" of communication with an employee requesting an accommodation so that the employer will be able to ascertain whether there is in fact a disability and, if so, the extent thereof, and thereafter be able to assist in identifying reasonable accommodations where appropriate. "The ADA itself does not refer to the interactive process," but does require employers to "make reasonable accommodations" under some circumstances for qualified individuals. Shapiro v. Township of Lakewood, 292 F.3d 356, 359 (3d Cir. 2002). With respect to what consists of a "reasonable accommodation," EEOC regulations indicate that to determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2(o)(3). It is not necessary that the employee himself or herself notify the employer of a need for accommodation; the question is whether the employer has received fair notice of that need. Taylor v. Phoenixville School Dist., 184 F.3d 296, 312 (3d Cir. 1999). Nor is the plaintiff required to request a particular accommodation; it is enough that the employer is made aware of the basic need for accommodation. Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240, 248 (3d Cir. 2006) (error to instruct the jury that the plaintiff had the burden of requesting a specific reasonable accommodation “when, in fact, he only had to show he requested an accommodation”). In February of 2015, Ms. Colonna applied for a reasonable accommodation under the ADA. PSOF at ¶45. Her initial request for an accommodation was denied, as Defendants failed to request the appropriate medical documentation from the Doctor that was treating her Sjorgen’s Dr. Gold. PSOF at ¶¶ 52-54. As such, on March 17, 2015 Ms. Colonna was informed that her Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 18 of 40 17 request was being denied because her medical condition did not rise to the level of a disability. PSOF at ¶ 51. Kelly Dennis (“Ms. Dennis”) is the Disability Coordinator for the Defendants. Appx. D (Dennis Dep.) at 7:25-8:8. Her job duties are to review medical documentation in response to requests for accommodation under the ADA. Id. at 8:9-15. Ms. Dennis admits that at Ms. Colonna’s first request for an accommodation she did not provide Dr. Gold with any paperwork to determine if Ms. Colonna’s condition impacted and substantial life activities. PSOF at ¶¶ 53- 54. Therefore, on April 20, 2015, when Ms. Colonna was informed that her FMLA time had expired, she again requested an accommodation. PSOF at ¶ 55. Ms. Colonna made her request via e-mail and explained that she had an eye issue and had been diagnosed with Sjogren’s. Id. In addition she mentioned how her condition impacted her in the mornings and how she was struggling to make it to work on time. Id. In this e-mail she requested an accommodation of an hour so she would be able to get her eyes to a point where she we be able to drive to work and be able to function. Id. As a result, Ms. Dennis re-opened Ms. Colonna’s request for an accommodation. Although the interactive process requires that the employer speak to the employee, Defendants admit they never questioned Ms. Colonna about why she needed the flexibility and/or anything relating to the e-mail. PSOF at ¶ 58. The lip biopsy Ms. Colonna mentioned in her above email (April 20th), stating that “the score is somewhat borderline and equivocal in supporting potential Sjogren Syndrome.” PSOF at ¶ 59. Although she was diagnosed with Sjogren’s syndrome, on May 6, 2015, Defendants sent another letter stating that they had the “information provided does not support the requested accommodation” specifically that Defendant “reviewed office visit notes, diagnostic reports, and Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 19 of 40 18 personally interviewed a member of your Treating Physician’s team to determine this outcome.” PSOF at ¶60. Ms. Dennis testified that rather than speak with Ms. Colonna or Ms. Colonna’s treating physician (Dr. Gold), she instead spoke with Dr. Gold’s nurse to make this determination. PSOF at ¶ 61. Ms. Dennis alleges that the nurse stated Ms. Colonna did not have Sjorgen’s and was not substantially limited in any major life activities. See Defendants Statement of Material Facts at ¶ 33. However, this was contrary to what Dr. Gold’s opinion. PSOF at ¶ 65. Ms. Dennis admits that she never asked Dr. Gold whether or not Ms. Colonna’s Sjorgen’s condition substantially limited her in any major life activities (a failure to engage in an interactive process). PSOF at ¶ 64. Since Defendant again failed to engage in a good faith interactive process, Ms. Colonna had her doctor send a letter to Ms. Dennis explaining her condition. Dr. Gold wrote the following: The above individual is under my care for a diagnosis of Sjogren’s syndrome. As a result of this disorder, she has unusually dry eyes which interfere with her vision, especially in the morning. As a result of this condition, she has difficulty seeing in the morning when she first awakens and therefore is dangerous for her to drive very early in the morning. Please allow her to start work at 9AM which would allow her time for her eyes to adjust, for her to apply ocular moisturizers and would allow her to drive to work safely. PSOF at ¶ 65. Ms. Dennis admits that this letter from Dr. Gold listed two major life activities that Ms. Colonna was substantially limited in due to Sjogren’s, seeing and driving. PSOF at ¶ 66. However, after receiving the medical note requesting an accommodation, Ms. Dennis admits that she did not have any verbal conversations with Dr. Gold or Ms. Colonna about why the accommodation was needed. PSOF at ¶ 67. Instead on May 13, 2015, Ms. Dennis sent a letter to Dr. Gold and laid out an arbitrary schedule (without speaking with Ms. Colonna) about a possible schedule for her to wake up on time. PSOF at ¶68. Ms. Dennis claims she sent this letter for clarification because she was unclear what the doctor was requesting of the employee (even Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 20 of 40 19 though the note Dr. Gold sent specifically requested a 9:00 a.m. start time). PSOF at ¶ 69. This letter asked the amount of time between Ms. Colonna waking in the morning and driving to be safe would take. Id. In response, Dr. Gold wrote that it would be 60-90 minutes, but mentioned that the time could vary. Id. Although Ms. Dennis before (when Dr. Gold requested a 9:00 a.m. start time) wanted more information because it was unclear, she did not ask Dr. Gold what “variable” meant in terms of how long it would take in the morning to be safe and drive to work. Again a failure of the interactive process. Instead, Ms. Dennis wiped her hands of the situation and simply denied Ms. Colonna’s request for an accommodation. It is undisputed that Ms. Dennis failed to engage in the interactive process, as she did not have any conversations with Dr. Gold about why he first he believed a 9:00 a.m. accommodation was reasonable. PSOF at ¶72. It is also undisputed that Defendants never spoke with Dr. Gold about Ms. Colonna’s conditions or limitations, nor did they ask him to re-evaluate her. PSOF at ¶ 72-75. From the May 12th letter (requesting the 9 a.m. start time), until the time of her termination Ms. Colonna was never examined by Dr. Gold or any other physician. PSOF at ¶ 76. This was contrary to their disability policy which states that: If the requested medical information does not clearly explain the nature of the disability or how the requested accommodation will assist the staff member to perform the essential functions of the job additional medical information will be requested and/or the staff member may be requested to be evaluated by a physician selected by WorkPartners and paid by UPMC. PSOF at ¶ 82. Again a failure to engage in a good faith interactive process. As the Third Circuit laid out in Williams, supra, the employer “has a duty under the ADA to engage in an "interactive process" of communication with an employee requesting an accommodation so that the employer will be able to ascertain whether there is in fact a Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 21 of 40 20 disability and, if so, the extent thereof, and thereafter be able to assist in identifying reasonable accommodations where appropriate.” Williams, 380 F.3d at 772. Nonetheless, Defendants admit that they never asked Dr. Gold nor Ms. Colonna what time she was waking up in May of 2015 to attempt to arrive at work. PSOF at ¶ 77. No one from Defendants ever asked Ms. Colonna if she would be willing to wake up at 6:00 a.m., nor did they present her with the schedule proposed to Dr. Gold. PSOF at ¶ 80; Appx. A (Pl. Dep.) at 54:2-14. This is a direct failure to engage in good faith, as they never spoke with the employee about her requested accommodations and to determine the appropriate accommodation. If they would have they would have found out that Ms. Colonna was already waking up prior to 6:00 a.m., as she was trying to get to work on time. PSOF at ¶81. On May 20, 2015, Ms. Colonna was informed her accommodation request was denied, and she was terminated the next day. Defendants contend that Ms. Colonna’s request was not necessary, in order to permit Ms. Colonna to arrive to work on time. However, they admit no one ever spoke to her to determine if it was necessary. Defendants contend that “by getting out of bed earlier, Plaintiff could have arrived to work on time.” However, Ms. Colonna was already getting of work earlier, but she unfortunately was still unable to make it to work on time. PSOF at ¶ 81. Defendants contend that Ms. Colonna’s request was a personal preference and that she could not be provided for her commute. However, this Court in McIntyre v. Archuleta, No. 2:14- CV-00327, 2015 WL 4566730, at *4 (W.D. Pa. July 29, 2015)(J. Hornak), indicated that a change in commute can be a reasonable accommodation. The Plaintiff in McIntyre requested an accommodation to work from home, as her long commute and her disability caused her fatigue in the work place. Id. at *2. The Court held that McIntyre could have been accommodated if Defendant engaged in a good faith interactive process: Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 22 of 40 21 perhaps the solution would not have been to allow McIntyre to work from home full time. Perhaps the parties could have arrived at another solution. After all ‘if an employer fails to engage in the interactive process, it may not discover a way in which the employee’s disability could have been reasonable accommodated.’” McIntyre has thus demonstrated that a factfinder could conclude that the Defendant failed to engage in good faith in the interactive process, and as a result the Defendant cannot avoid possible liability by stating that McIntyre's requested accommodation was facially unreasonable. Id at *11-12, citing Taylor v. Phoenixville School District, 184 F.3d 296, 317 (3d Cir.1999). The McIntyre Court stressed the importance of the employee communicating with the Defendant, as they discussed the Third Circuits ruling in Taylor: The Taylor court then stated that it agreed with a Seventh Circuit case on the subject: “An employee's request for reasonable accommodation requires a great deal of communication between the employee and employer. Both parties bear responsibility for determining what accommodation is necessary. Neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.” McIntyre v. Archuleta, No. 2:14-CV-00327, 2015 WL 4566730, at *9–10 (W.D. Pa. July 29, 2015) citing Taylor v. Phoenixville School District, 184 F.3d 296, 311(3d Cir.1999). As such, like the Defendant in McIntyre, UPMC cannot avoid liability by simply failing to ask Ms. Colonna about what time she was waking up in the morning and inquiring into how they could help her. Maybe they would have been able to provide her with a 9:00 a.m. start time every day, or maybe they could have been able to provide it once or twice a week. However, Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 23 of 40 22 since they never inquired into what time she was waking up and how they could help her, a jury could conclude that they failed to engage in the interactive process. See also Bernhard v. Brown & Brown of Lehigh Valley, Inc., 720 F. Supp. 2d 694, 702 (E.D. Pa. 2010) (the Court denied summary judgment, because Defendant failed to engage in the interactive process, when they failed to have discussions with the Plaintiff about her accommodations.) Defendants also argue that Ms. Colonna’s request was not reasonable. However, as discussed supra, Defendants management admitted that they would have been fine with accommodating a 9:00 a.m. start time and were fully capable of it. See PSOF at ¶¶ 83-84. Moreover, Defendants indicated that they would have been able to accommodate her by having her start at 9:00 a.m. and work late on either Monday or Thursday nights. Appx. B (Lossie Dep.) at 39:4-40:12, 44:23-45:21. Ms. Colonna offered to stay and work later every day of the week except for Monday (due to childcare issues). Appx. A (Pl. Dep.) at 45:16-21. Defendant’s argument that Ms. Colonna should have taken public transportation also is without merit. The times proposed by the Defendants are times that are way earlier than Ms. Colonna would even leave for work. As such, these would not have been feasible options for her. Ms. Colonna states that it would have been more difficult for me to get to these bus stops every morning than it would be for me to drive to work on time. Appx. Ex. E (Pl. Declr.) at ¶ 11. The reason being because as I testified to numerous times in my deposition, my eyes are blurry and the morning and I am unable to see. To walk to these bus stops, I would need to get my eyes into working order, in the same way I would to be well enough to drive. Id.at ¶ 12. If I was having difficulty seeing in the morning it would have been dangerous for me to walk to these bus stops. When I have trouble seeing, it impacts my ability to walk. Moreover, the street that I live on does not have sidewalks, which would cause greater risks. In addition, if I was to walk to the bus stops Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 24 of 40 23 (proposed by Defendants) the route I would be forced to take also does not have sidewalks. Id. at ¶ 13. If Defendants would have discussed these options with Ms. Colonna she could have informed them that these were not a possibility. Additionally, if Ms. Colonna would have been accommodated for the 9:00 a.m. start time, without working any extra hours, she would have went from 40 hours per week to 37.5 hours per week. Defendants made the same accommodation for an employee in a similar position as Ms. Colonna. Appx. Ex. B (Lossie Dep) at 100:8-11. Ms. Epperson was provided a schedule of 36 hours per week, rather than 40, simply because those are the hours she wanted to work. Ms. Epperson wanted to leave work early and Defendants accommodated her. PSOF at ¶ 90. Clearly, they could have provided the same accommodation for Ms. Colonna. D. Ms. Colonna can establish her FMLA and ADA retaliation claims (as they are all governed by the same retaliation and McDonnell Douglas burden- shifting analysis) The ADA and FMLA prohibit employers from retaliating against employees who avail themselves of the protections offered by the Acts. 42 U.S.C. § 12203; 43 P.S. § 955(d); 29 U.S.C § 2615. To establish a prima facie case of retaliation, “a plaintiff must show: (1) protected employee activity; (2) 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." Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997); Treaster v. Conestoga Wood Specialties, Corp., 2010 U.S. Dist. LEXIS 63257, 98, 2010 WL 2606479 (M.D. Pa. Apr. 29, 2010).4 4 Under the burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973), to survive summary judgment, a plaintiff must first prove a prima facie case of discrimination. The burden then shifts to the defendant “to articulate some legitimate, nondiscriminatory reason” for its action. Id. at 802. If the defendant meets its burden of production, any Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 25 of 40 24 i. Ms. Colonna engaged in protected activity under the ADA and FMLA and suffered an adverse employment decision5 ii. Ms. Colonna submits sufficient evidence of causation6 and pre-text A causal connection can be demonstrated through direct evidence or circumstantial evidence. See Trujillo-Cummings v. Public Serv. Co., 173 F.3d 864 (10th Cir. 1999); See also Morgan v. City of Jasper, 959 F.2d 1542, 1547 (11th Cir.1992). Some plaintiffs establish causation with (1) temporal proximity; (2) a pattern of antagonism following the protected activity; or (3) by showing that the reason for his or her alleged adverse action is pretextual. Id. Also, when a plaintiff has presented sufficient evidence to suggest that the defendant's explanation lacks credibility or that discrimination is the more likely motive, a case is made for pretext. Burdine, 450 U.S. at 256, 101 S. Ct. at 1095. Once the plaintiff produces evidence sufficient to permit the factfinder to disbelieve the defendant's explanation for its actions, summary judgment is not appropriate because "[i]ssues of fact and sufficiency of evidence are properly reserved for the jury." Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 921 (11th presumption of discrimination drops from the case and the plaintiff has the burden to adduce evidence from which a fact finder could reasonably disbelieve the employer’s articulated reasons for the action. Id. at 804. The foregoing standard is not inflexible, as “[t]he facts necessarily will vary in [discrimination] cases, and the specification above of the prima facie proof required . . . is not necessarily applicable in every respect in differing factual situations.” Id. at 802, n. 13, 93 S. Ct. at 1824, n. 13. 5 Defendants do not contend that Ms. Colonna engaged in protected activity under the ADA or FMLA, nor do they contend that she did not suffer an adverse employment action. See Defendants’ Motion at pg. 11 and pg. 24. 6 The same evidence is used herein to establish a casual connection, as well as the pre-textual nature of Defendants’ actions. Therefore, the analysis is the same. See Vanstory-Frazier v. CHHS Hosp. Co., LLC, 827 F. Supp. 2d 461, 474 (E.D. Pa. 2011)(J. Yohn)(“because the same evidence is relevant both in supporting the inference of causation required for plaintiff's prima facie case and in casting doubt on defendant's proffered reason for terminating plaintiff”) see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280-86 (3d Cir. 2000) (asserting that a plaintiff can establish the required causal connection not just through temporal proximity or a pattern of antagonism but also through other circumstantial evidence, and recognizing that evidence supporting the prima facie case may often be helpful at the pretext stage), I find it unnecessary to separately address whether plaintiff has established a prima facie case.”) Given that the prima facie case and pretext inquiries often overlap, evidence supporting the prima facie case can be used to demonstrate pre-text.” Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008)(citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 286 (3d Cir. 2000)); Epps v. First Energy Nuclear Operating Co., 2013 U.S. Dist. LEXIS 41140, *74, 2013 WL 1216858 (W.D. Pa. Mar. 25, 2013)(same). Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 26 of 40 25 Cir. 1993).7 Unusually Suggestive Timing In the Third Circuit, an inference of retaliation exists when an employee is terminated shortly after engaging in protected activity.8 See Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005) (reversing district court grant of summary judgment because court failed to consider inference created by adverse action within less than three months following engagement in protected activity); See also Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584, 596 (10th Cir.1994)(concluding that a one and one-half month period between protected activity and adverse action may establish causation); Brungart v. BellSouth Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir.2000)(stating that the “general rule is that close temporal proximity between the employee’s protected conduct and the adverse employment action is sufficient circumstantial evidence to create a genuine issue of material fact of a causal connection”). Temporal proximity is typically one factor in a retaliation analysis, but when the timing is so suggestive that alone is sufficient. See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (finding that the plaintiff established sufficient evidence of causation by showing that the adverse action occurred only two days after the protected activity in a retaliation case; the Court specifically noted that nothing prevented it from utilizing evidence of timing for both plaintiff’s 7 The Court is mindful that it should "exercise caution in resolving issues of pretext on summary judgment." Cookson v. Brewer Sch. Dep't, 974 A.2d 276 (Me. 2009); see also Billings v. Town of Grafton, 515 F.3d 39, 56 (1st Cir. 2008)(stating that "where a plaintiff in a discrimination case makes out a prima facie case and the issue becomes whether the employer's stated nondiscriminatory reason is a pretext for discrimination, courts must be particularly cautious about granting the employer's motion for summary judgment." (internal quotation marks omitted)). 8 See also Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982) (A causal connection “may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.”). See also Nesselrotte v. Allegheny Energy, Inc., WL 703395 (W.D. Pa. 2009) (less than three months between protected activity and termination sufficiently established causation element); Annett v. Univ. of Kan., 371 F.3d 1233, 1240 (10th Cir. 2004) (two to three months between the protected activity and the alleged retaliatory action was sufficient to establish causation); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (same). Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 27 of 40 26 prima facie case and his burden to establish pre-text) (emphasis added); Waters v. Genesis Health Ventures, Inc., 2004 U.S. Dist. LEXIS 25604 (E.D. Pa. 2004) (inference of causation created in a retaliation case where only 4 days passed between engaging in protected activity and the alleged adverse action); Barnes v. Office Depot, Inc., WL 4133563 (D.N.J. 2009) (timing alone of 2 days from termination and protected activity sufficient). Ms. Colonna can establish unusually suggestive timing, as she was disciplined the day she was informed that her FMLA leave had expired and she was terminated the day after her request for an accommodation was denied. On April 20, 2015, for the first time, Ms. Colonna was informed that her 12 weeks of intermittent FMLA time had expired. PSOF at ¶ 45. On this same date, she wrote an e-mail requesting an accommodation of a start time of one hour later than her scheduled time. PSOF at ¶ 55. Ms. Colonna received a corrective action report on April 20, 2015 (the day she learned her FMLA had expired) for tardiness. On these occasions she was 13, 9, 19, and 28 minutes late. As such, for each of these absences she would have been on time if her accommodation had been granted. PSOF at ¶ 91. In the employee comments of the corrective action Ms. Colonna wrote: I have had ongoing eye problem for about a year or more now, this impacts my everyday life/routine. I was on FMLA due to my eyes and it has run out, I am now waiting on paperwork (ADA) to be filled out, I recently had some testing done that shows that I have sjorgrens [which] is autoimmune. I am late to work due to my eye issues everyday. I really try my hardest to be here before/at my scheduled time, but it is very hard for me to predict how my eyes are going to be day to day. There are time when I have to pull over when driving to work, due to the sun or just my eyes fogging up, until I can see better, or feel comfortable enough to drive saf[e]ly. I understand the policy and why it has to be done, but I also can’t control/predict my eyes and how they will be from day to day. I really am trying my best/hardest to be here at my scheduled time. PSOF at ¶ 92. This evidence shows she was disciplined on the same day she requested an Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 28 of 40 27 accommodation and she was informed her FMLA was exhausted. On February 11, 2015, Ms. Colonna made her first request for an accommodation relating to her disability for a later start time. See Defendants Statement of Facts at ¶ 27. One week later, on February 18, 2015, Lossie (Ms. Colonna’s supervisor) held a staff meeting that she was going to begin implementing the time and attendance policy across the board. Appx. Ex. B (Lossie Dep.) at 154:21-156:12. Ms. Colonna also requested Ms. Colonna was also informed that her request for an accommodation was denied on May 20, 2015 and she was terminated the next day. PSOF at ¶79, 98-99. Like the Court found in Jalil, a jury could conclude that the timing of these disciplines, the timing of the meeting and termination alone create an inference of discrimination. Retaliatory Animus In cases where the timing of an employer’s adverse action is, by itself, inconclusive, a plaintiff may demonstrate a causal link by producing circumstantial evidence “retaliatory animus” in the intervening period between her protected activity and the adverse action. See Kachmar v. Sungard Data Sys., 109 F.3d 173, 177 (3d Cir. 1997). After Ms. Colonna requested both FMLA leave and accommodations, Defendants treated him in a retaliatory manner. While on leave, Ms. Colonna was criticized for taking FMLA leave. PSOF at ¶ 37. The employee (Bernadine Bagniszewski) stated “Maybe if you got here on time, you would know what’s going on in the morning.” PSOF at ¶ 38. Ms. Colonna’s co-workers (who were in a similar position as her) Megan Myers, Laura Epperson and Charlene Bardo also had issue with her taking leave and would complain about her being late. PSOF at ¶ 39. Megan Myers sent text messages to her during leave harassing her for taking her FMLA time. PSOF at ¶ 40. During Ms. Colonna’s intermittent FMLA leave, Lossie constantly harassed Ms. Colonna Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 29 of 40 28 with e-mails complaining about her not being at work. On September 8, 2014, Lossie wrote an email to Ms. Colonna stating that patients and providers (doctors) have been complaining about Ms. Colonna for being absent. Lossie wrote that “I’m just not happy with how it is working out” and in the last sentence writes: “I know these circumstances are beyond your control but something has to be done now. I’m sorry but it’s up for discussion.” PSOF at ¶ 42. On November 5, 2014, Lossie wrote an e-mail stating that other office assistants “I know that they are overwhelmed at times with you not being here in the morning.” PSOF at ¶ 43. On January 8, 2015 at 4:31 p.m., Lossie wrote in response to Ms. Colonna requesting to work on Thursday nights that: And, I guess it would be helpful if you were here on time EVERYDAY. You entirely ignored me when I said you were late today. I’m not sure if you didn’t hear me or you just choose to let it go. So, when you cannot put in the effort to be here on time or early, when possible, than I shouldn’t have to do any changes either. Just sayin’” PSOF at ¶ 45. This causal link could lead a reasonable jury to conclude that this created a causal connection and pretext between Ms. Colonna’s FMLA leave, requests for accommodations and her termination. Disparate Treatment Plaintiff has also offered a plethora of comparator evidence indicating that she was treated less favorably than other employees. Circumstantial evidence of discrimination may include evidence “that the employer treated other, similarly situated non-members of a protected class more favorably.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994). “In determining whether similarly situated non-members of a protected class were treated more favorably than a member of the protected class, the focus is on the particular criteria or qualifications identified by the Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 30 of 40 29 employer as the reason for the adverse action.” Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F.3d 639, 647 (3d Cir.1998) (citing Ezold v. Wolf, Block, Schorr & Solis–Cohen, 983 F.2d 509, 528 (3d Cir.1993)). To survive summary judgment, “the plaintiff must point to evidence from which a factfinder could reasonably infer that the plaintiff satisfied the criterion identified by the employer or that the employer did not actually rely upon the stated criterion.” Simpson 142 F.3d at 647 (citing Fuentes, 32 F.3d at 767). Disparate treatment, whereby a plaintiff shows that she was treated less favorably than similarly situated employees who are not in plaintiff's protected class is the evidence most often used to establish a nexus or pretext. Iadimarco v. Runyon, 190 F.3d 151, 162 (3d Cir.1999). For example, a company's failure to follow its own policy with respect to other similarly situated individuals can constitute pretext. Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005). Nevertheless, "[i]In determining whether similarly situated nonmembers of a protected class were treated more favorably than a member of the protected class, the focus is on the particular criteria or qualifications identified by the employer as the reason for the adverse action." Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3d Cir. 1998) (citation omitted). Murphy v. Ctr. for Emergency Med. of W. Pa., 2013 U.S. Dist. LEXIS 65681, 71, 2013 WL 1909135 (WDPA 2013). At the time Ms. Colonna was employed there were three other office assistants who also reported to Lossie: Charlene Bardo, Amy Schultz, and Meaghan Myers. All of them were frequently late but were not discharged. PSOF at ¶¶ 104-105. From what Ms. Colonna observed and was told about their tardiness and attendance issues, these would have been terminated if they were disciplined correctly, according to the policy. PSOF at ¶¶ 106. Ms. Colonna’s allegations were substantiated by the time records that were received during the course of litigation. Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 31 of 40 30 It is undisputed that since January of 2010, no other employee has been disciplined for absenteeism or tardiness. PSOF at ¶107. At her deposition Lossie was adamant that no other employee was tardy on three (3) occasions in a 120-day period. However, after being confronted with the time records, Lossie admitted that two employees (Meaghan Myers and Charlene Bardo) had been late on seven (7) occasions in a 90-day period, but were not disciplined. PSOF at ¶¶ 122- 123, 125-126. Lossie agrees that they should have been disciplined under Defendants’ policies. PSOF at ¶ 124. During further review of the time records, it is clear that these individuals should have been disciplined on multiple occasions. Meaghan Myers (“Ms. Myers”) was tardy on January 2nd, 8th, and 27th of 2014 (less than 120 day period).9 PSOF at ¶ 117. Under Defendants’ policies she should have received a supervising counseling (step 1). PSOF at ¶ 12. Ms. Myers then was tardy on February 6, February 18 and March 10 in 2014 (less than a 120 day period). PSOF at ¶ 117. All of these tardiness’s were unapproved. Under Defendants’ policies at this time she should have been issued a First Warning (step 2). PSOF at ¶ 12. In less than another 120 day period, Ms. Myers was late on April 30, 2014. PSOF at ¶ 117. As such, she should have been issued a Final Warning/suspension under Defendants’ policies (step 3). PSOF at ¶ 12. Then in less the next 120 day period Ms. Myer’s had two more unapproved tardiness’s on June 26, 2014 and July 8, 2014. PSOF at ¶ 117. Only one of these absences should have led to Ms. Myer’s termination. PSOF at ¶ 12. Since Ms. Myers was in the same position as Ms. Colonna, she should also have been terminated. PSOF at ¶104. Charlene Bardo was tardy on January 6th, 23rd and February 7 of 2014 (less than a 120-day period). PSOF at ¶ 118. . Under Defendants’ policies she should have received a supervising 9 Plaintiff did not even consider the January 9th tardiness as it was due to a doctor’s appointment. Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 32 of 40 31 counseling (step 1). PSOF at ¶ 12. Ms. Bardo was then tardy on February 13th, 25th and March 10th of 2014 (less than 120-day period). Under Defendants’ policies at this time she should have been issued a First Warning (step 2). PSOF at ¶ 12. In less than another 120 day period, on March 13, 2014, Ms. Bardo was absent again. As such, she should have been issued a Final Warning/suspension under Defendants’ policies (step 3). PSOF at ¶ 12. Since Ms. Bardo was in the same position as Ms. Colonna, she should also have been terminated. PSOF at ¶104. Lossie testified that some of these absences should not count towards discipline because tardiness due to road conditions, traffic or doctor’s appointments were not considered tardy. However, this is testimony is contrary to Defendants time and attendance policy. PSOF at ¶ 120. This policy states “Tardiness is beginning work 1 minute or more after the start of the scheduled shift, regardless of what the timekeeping system pays.” Id. The only exclusion from tardiness in the policy are “funeral leave, jury duty, leave of absence and scheduled and approved PTO (STO).” Id. As such, with all reasonable inferences in Ms. Colonna’s favor a jury could conclude Lossie was simply lying and these individuals should have been disciplined and terminated. Assuming arguendo, that Lossie was telling the truth, she still admitted that they had enough unapproved absences to be disciplined. PSOF at ¶¶ 117-118, 124. Defendants admit that the time and attendance policy went into effect in January of 2012 and is still presently the policy. Defendants Statement of Material Facts at ¶ 46. As such, a jury could conclude that these employees in a similarly situated position as Ms. Colonna were treated more fairly, thereby establishing both a causal connection and pretext. Lack of Credibility Attributed to Defendants’ Witnesses A plaintiff is able to establish pretext even if testimony is uncontroverted (which is not the case here), because the role of the jury must be preserved with respect to determination of Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 33 of 40 32 credibility, weighing of evidence and the drawing of legitimate inferences from fact. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149 (U.S. 2000). In Reeves, the court held that although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. Id. at 151. See also Springer v. Henry, 435 F.3d 268, 281 (3d Cir. 2006)(Court noted that when ruling on a motion for summary judgment as a matter of law, the court “must disregard all evidence favorable to the moving party that the jury is not required to believe”). Lossie’s testimony that Ms. Colonna was the only employee that was ever tardy in a 120- day period was an absolute lie. At her deposition, Lossie was adamant that no other employee had been tardy on three (3) occasions in a 120-day period. PSOF at ¶ 108. During Lossie’s deposition, defense counsel showed her the time records for Jessica Colonna, Laura Epperson, Charlene Bardo and Meaghan Myers. PSOF at ¶ 109. Lossie reviewed all of these time records during the deposition. PSOF at ¶ 110. After reviewing these records defense counsel asked “And at any point in time, did any of these employees other than Ms. Colonna come to work late more than 3 times within a 120-day period?” and Lossie responded “No.” PSOF at ¶ 111. Lossie testified that if another employee was absent on three occasions in a 120-day period they would have to be disciplined. PSOF at ¶ 112. After being confronted with the tardiness’s that were in the time records, Ms. Lossie had no choice but to admit that both Meaghan Myers and Charlene Bardo had more than three tardiness’s in a 120-day period (in fact they both had seven (7) absences in a 90- day period). PSOF at ¶¶ 122-126. Lossie then agreed that these employees should have been disciplined. Id. As such, a jury could A jury could conclude that the fact that these employees were not discipline Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 34 of 40 33 Record as a Whole A plaintiff is able to establish pretext even if testimony is uncontroverted (which is not the case here), because the role of the jury must be preserved with respect to determination of credibility, weighing of evidence and the drawing of legitimate inferences from fact. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 149 (U.S. 2000). In Reeves, the court held that although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. Id. at 151. See also Springer v. Henry, 435 F.3d 268, 281 (3d Cir. 2006)(Court noted that when ruling on a motion for summary judgment as a matter of law, the court “must disregard all evidence favorable to the moving party that the jury is not required to believe”). Here, the record as a whole shows: 1) unusually suggestive timing; 2) Retaliatory Animus; 3) Disparate Treatment; and 4) Lack of Credibility of the Defense Witnesses. These combined with the fact that Defendants failed to engage in the interactive process could lead a jury to conclude that there was a causal connection between Ms. Colonna’s disability, requests for accommodation/FMLA leave and her termination. This same reasoning could also lead a jury to conclude that Defendants reason for termination was pretextual. 4. Defendants’ are Joint/Integrated Employers under the law Defendants UPMC Hamot and UPMC are demonstrably integrated and/or joint employers. -Joint Employer Test: “The joint employer doctrine applies in the same manner across Title VII … and ADA claims. See Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 449 n.7, 123 S. Ct. 1673, 155 L. Ed. 2d 615 (2003).” Brown v. Arizona, 2011 U.S. Dist. LEXIS 79267 at *8, fn. 2 (D. Ariz. 2011). See also Clifford v. Patterson Cos., 2009 U.S. Dist. LEXIS 107635 (N.D. Ill. 2009) (same); Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 35 of 40 34 Rubino v. ACME Bldg. Maint., 2008 U.S. Dist. LEXIS 103951 (N.D. Cal. 2008) (same). Under the joint employer theory, the Court considers three factors (from a totality of the circumstances perspective): (1) authority to hire and fire employees, promulgate work rules and assignments, and set conditions of employment, including compensation, benefits and hours; (2) day-to-day supervision of employees, including employee discipline; and (3) control of employee records, including payroll, insurance, taxes and the like. Zarnoski v. Hearst Bus. Communications, Inc., 1996 U.S. Dist. LEXIS 181 at *24 (E.D.Pa. 1996). As the joint/integrated tests are extremely similar, the instant motion response will simply focus on the latter. However, it is abundantly clear that -Integrated Employer Test: The general integrated employer tests appear to be targeted to numerosity requirements, but have also been applied to allow the imposition of liability. “[T]he integrated employer test is a mechanism to ensure that the appropriate employees are aggregated for the numerosity test of the FMLA.” Grace v. USCAR, 521 F.3d 655, 664 (6th Cir.Mich.2008). The “integrated employer” test is directed toward ensuring that a defendant has not structured itself to avoid reaching the fifty- employee threshold for FMLA responsibility. Cardinale v. Southern Homes of Polk Cty., No. 6– 1295, 2008 WL 788460, at *9–10, 2008 U.S. Dist. LEXIS 21716, at *30 (M.D.Fla. Mar. 19, 2008). Under the FMLA, “a determination of whether or not separate entities are an integrated employer is not determined by the application of any single criterion, but rather the entire relationship is to be reviewed in its totality.” Family and Medical Leave Act of 1993 29 C.F.R. § 825.104(c)(2). (emphasis added). In viewing that relationship, the Court is to consider several factors, including common management; interrelation between operations; centralized control of labor relations; and degree of common ownership/financial control. Id. When applying Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 36 of 40 35 this test, “not every factor need be present, and no single factor is controlling.” Braden v. County of Washington ,749 F. 3d 301, 309-310 (3rd Cir. 2010) citing Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332, 1341 n. 5 (11th Cir.1999). (emphasis added). - Centralized Control of Labor Relations: This factor may take into account elements such as decision-making power as to the decisions at issue in the case; control over work schedules; and the power to hire, fire, and supervise employees. Hukill v. Auto Care, Inc., 192 F.3d 437, 445 (4th Cir.1999). Control of day- to-day employment decisions is also relevant, as are tasks such as “handling job applications, approving personnel status reports, and exercising veto power over major employment decisions.” Velez v. Novartis Pharms. Corp., 244 F.R.D. 243, 250 (S.D.N.Y.2007). -Interrelationship of Operations The second factor, interrelation of operations, is similar to the first, as it takes into account items such as common offices, record keeping, bank accounts, and equipment. Swallows v. Barnes & Noble Book Stores, 128 F.3d 990, 995 (6th Cir.1997). In the instant case, Kelly Dennis is an employee of UPMC, not UPMC Hamot. PSOF at ¶ 129. She was an employee of UPMC as the Disability management coordinator during the relevant time period. PSOF at ¶ 130. Ms. Dennis is responsible for reviewing requests for accommodations under the ADA. PSOF at ¶ 131. Ms. Dennis explained that she is responsible for all UPMC locations. PSOF at ¶ 132. Ms. Dennis is the person that made the decision to deny Ms. Colonna’s first request for accommodation. PSOF at ¶ 133. The May 13, 2015 discussed supra, that Ms. Dennis sent to Dr. Gold was faxed via transmission from UPMC. PSOF at ¶ 134. Samueloff mentioned that UPMC Hamot has a disability discrimination policy. PSOF at ¶ 135. Samueloff explained that the policy applies to employees of UPMC, including towards Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 37 of 40 36 individuals with disabilities. PSOF at ¶ 136. During her deposition, Samueloff identified that policy, which is attached hereto as Appx. Exhibit R. The heading of this policy states UPMC and makes no mention that this policy only applies to UPMC Hamot. In fact it states: “it is the policy of UPMC to provide reasonable accommodations to qualified United States based staff members.” PSOF at ¶ 137. The last page of the policy it states: “With respect to UPMC business units described in the Scope section, this policy is intended to replace individual business unites policies covering the same subject matter.” PSOF at ¶ 138. Andrea Clark, who is the Sr. Associate Counsel and Vice President Employment and Labor Group supporting UPMC and various UPMC entities, including UPMC Hamot, had knowledge of the ownership of these entities. Decl. of Andrea Smith, attached to Defendants Motion in Appendix I. UPMC is the sole member of UPMC Hamot, making UPMC Hamot a wholly-owned subsidiary of UPMC. The Defendants are joint employers. UPMC has the ability to promulgate rules for UPMC Hamot, and in fact their rules supersede any UPMC Hamot rule that is to the contrary. Moreover, a UPMC employee was the one who made the decision to not accommodate Ms. Colonna and determined whether or not she would be provided an accommodation for UPMC Hamot. Additionally, Andrea Clark, who is responsible for employment and labor relations is responsible for both UPMC and UPMC Hamot. Moreover, UPMC is the sole-owner of UPMC Hamot and they cannot to avoid reaching the fifty-employee threshold for FMLA responsibility. See Cardinale v. Southern Homes of Polk Cty., No. 6–1295, 2008 WL 788460, at *9–10, 2008 U.S. Dist. LEXIS 21716, at *30 (M.D.Fla. Mar. 19, 2008). For these reasons, if all inferences are in favor of Ms. Colonna, a reasonable jury could conclude they are joint and/or integrated employers. IV. CONCLUSION Based on the foregoing analysis, Ms. Colonna respectfully requests that this Court deny Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 38 of 40 37 Defendant’s Motion for Summary Judgment in its entirety. Respectfully Submitted, KARPF, KARPF & CERUTTI, P.C. /s/ Zachary J. Zahner Zachary J. Zahner, Esq. 3331 Street Road Two Greenwood Square; Suite 128 Bensalem, PA 19020 215-639-0801 Attorney for Plaintiff Date: February 15, 2017 Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 39 of 40 38 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ____________________________________ JESSICA COLONNA : : CIVIL ACTION : Plaintiff, : No.: 16-0053 : v. : : UPMC HAMOT : and : UPMC : : Defendants. : ____________________________________: CERTIFICATION I certify on the date set forth below that I served Defendant with a copy of Plaintiff’s Response to Defendants’ Motion for Summary Judgment at the following address via ECF: John J. Myers, Esq. Derek J. Illar, Esq. Eckert, Seamans, Cherin & Mellot 600 Grant Street 44th Floor Pittsburg, PA 15129 /s/ Zachary J. Zahner Zachary J. Zahner, Esq. Dated: February 15, 2017 Case 1:16-cv-00053-BR Document 27 Filed 02/16/17 Page 40 of 40