Colonna v. Upmc Hamot et al

MOTION for Summary Judgment and Supporting Brief

W.D. Pa.January 13, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JESSICA COLONNA , Civil Action No. 1:16-cv-0053 Plaintiff v. The Honorable Judge Rothstein UPMC HAMOT and UPMC, Defendants DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the Defendants, UPMC and UPMC Hamot, by and through their undersigned counsel, move for summary judgment on all counts of Plaintiff’s Complaint. In support of this motion, the Defendants have filed a Concise Statement of Material Facts, an Appendix containing the evidentiary materials from which those facts were taken, and a Brief. As to all Counts, UPMC is entitled to summary judgment because it was not Plaintiff’s employer, but the parent corporation of Plaintiff’s employer, because Plaintiff was not employed by UPMC, and because UPMC does not have the requisite number of employees to be subject either to the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601, et seq., or to the Americans with Disabilities Act (“ADA”). 42 U.S.C. §§ 1211, et seq. Plaintiff cannot offer evidence that would permit treating the parent and subsidiary as one entity. Nor can she submit evidence that she was employed by UPMC. As to Count I, FMLA the Defendant, UPMC Hamot, is entitled to summary judgment because the record demonstrates that Plaintiff cannot establish a prima facie case for retaliation or interference and she cannot show that the reasons for her discharge, which were independent from her request and use of intermittent leave, were pretextual. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 1 of 30 2 As to Count II, which is a claim under the ADA, UPMC Hamot, is entitled to summary judgment as a matter of law because the record demonstrates that Plaintiff cannot establish a prima facie case for disparate treatment or retaliation, and she cannot show that the reason for her discharge was pretextual. As to the claim for failure to provide a reasonable accommodation, the evidence shows that the requested accommodation was not necessary or reasonable, nor would it have assisted Plaintiff to perform the essential function of arriving at work at her scheduled time. WHEREFORE, the Defendants pray for summary judgment in their favor and against Plaintiff. s/ John J. Myers f John J. Myers, PA I.D. No. 23596 Derek J. Illar, PA I.D. 307492 Eckert Seamans Cherin & Mellott, LLC U.S. Steel Tower 600 Grant Street, 44th Floor Pittsburgh, Pennsylvania 15219 412.566.5900 Counsel for Defendants Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 2 of 30 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JESSICA COLONNA , Civil Action No. 1:16-cv-0053 Plaintiff v. The Honorable Judge Rothstein UPMC HAMOT and UPMC, Defendants DEFENDANTS BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT The Defendants, UPMC Hamot and UPMC, have moved for summary judgment on both counts Plaintiff’s Complaint and submit this Brief in support of their Motion for Summary Judgment. STATEMENT OF THE CASE Plaintiff has alleged two causes of action in her Complaint. In Count I of the Complaint, Plaintiff claims that the Defendants interfered with her rights under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq., and retaliated against her in contravention of the same because they supposedly terminated her after she took protected leave and before she would recertify for protected leave in the future. In Count II of the Complaint, Plaintiff alleges that the Defendants discriminated against her in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112 (a) and 12112 (b)(5)(A), because they purportedly terminated her due to her disability; retaliated against her because she requested a reasonable accommodation; and failed to engage in the interactive process with her. For the reasons infra, the Defendants are entitled to judgment as a matter of law on both counts. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 3 of 30 4 The Defendants have filed a Concise Statement of Material Facts in compliance with Local Rule 56.B.1.1 The depositions, including exhibits to depositions, and the declarations cited therein are included in the Appendix of evidentiary materials filed with this Motion for Summary Judgment. The facts set forth in the following summary of material facts are supported in the Concise Statement and in the argument section of this Brief by citation to the record where such facts appear. SUMMARY OF MATERIAL FACTS Plaintiff worked as a Medical Office Assistant for a doctors’ practice named Health Families, which is owned by UPMC Hamot and is located in Erie, Pennsylvania.2 There are three doctors and two nurse practitioners in the practice. Plaintiff, along with two other Medical Office Assistants, answered telephones, scheduled appointments, and checked patients in and out. Healthy Families had fixed office hours and the assistants, like plaintiff, had regular work schedules. Plaintiff’s schedule required her to be at work at 8:30 a.m. Her home was a 10 to 15 minute drive from the office. Plaintiff’s serious health condition and alleged disability is Sjogren’s Syndrome, a condition which made her eyes dry and blurred her vision. The symptoms began to appear in late 2013 or early 2014. She would self-administer a moisturizer in the morning that would cause her to be unable to see well enough to drive a car for a period of time. This caused her to be late for work, she alleges. Plaintiff was approved for intermittent FMLA leave beginning at the end of July 2014. 1 Citations to Defendants’ Concise Statement of Material Facts are identified herein as “SOF ¶ __.” Where appropriate, the Defendants may cite to specific deposition testimony or exhibits. 2 Plaintiff did not work for UPMC, which is a separate and distinct entity from UPMC Hamot. See Declaration of Andrea Clark Smith. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 4 of 30 5 She exhausted the 12 weeks of FMLA leave in March 2015. In the meantime, Plaintiff was late for work every day from August 13, 2014 until March 23, 2015. In the first six weeks of her FMLA intermittent leave period, Plaintiff was absent on average over two hours a day.3 From September 30, 2014 through March 18, 2015, Plaintiff was late every single day by more than three hours, except October 27 and 28 and January 27 and 28, on which dates she was late by substantially more than two hours. Plaintiff was not disciplined for this tardiness. After Plaintiff’s FMLA leave was exhausted, on March 9, 2015, her supervisor gave her a period of four weeks without discipline to adjust to arriving on time. Plaintiff continued to be absent frequently - she was tardy every day except three in this adjustment period. Thereafter, from April 13 until her discharge on May 20, 2015, Plaintiff continued to be tardy far in excess of what was permitted under the Time and Attendance Policy, and ultimately after progressing through the steps of that Policy, plaintiff was discharged on May 20, 2015 for excessive tardiness. On February 11, 2015, Plaintiff submitted a written request for an accommodation to UPMC WorkPartners, the entity that administered Healthy Families’ ADA accommodations, FMLA and disability leaves for UPMC affiliated entities. Her request stated that her eyes were light sensitive and dry, so that she had difficulty looking at a computer. She did not ask specifically for an adjustment to her starting time, but said that she needed time to care for her eyes. The medical report that plaintiff submitted to support her accommodation request stated that plaintiff did not have a disability limiting a major life function, and concluded that: “If she was having problems working on the computer for long periods of time, she might need to take 3 Defendants have attached a Summary of the business record showing plaintiff’s attendance and swipe in and out times from June 2014 until May 2105 to their Concise Statement of Material Facts. Plaintiff’s arrival times are shown in those records, which are submitted as Plaintiff’s Deposition Exhibit G. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 5 of 30 6 breaks and to use eye drops.” It was stated that the accommodations are temporary until “the allergies clear up.” There was no medical recommendation relating to Plaintiff’s starting time. In April, 2015 Plaintiff submitted a request to UPMC WorkPartners, the entity that administered Healthy Families’ ADA accommodations, FMLA and disability leaves, that she have her work schedule adjusted to start at 9:30 instead of 8:30. Plaintiff did not submit any medical support for this request at the time, and WorkPartners’ discussions with the Nurse at Plaintiff’s doctor’s office did not indicate a need to adjust her starting time, but suggested that she could take her eye medications at another time of day. The accommodation was denied on May 6 because there was insufficient medical support provided. Then, on May 12, 2015 a Dr. Kenneth Gold sent a letter that stated that he was treating Plaintiff for Sjogren’s Syndrome, which was the first time she had been diagnosed with that condition, and that she should be allowed to start at 9:00 a.m., a half hour later. WorkPartners sent Dr. Gold a medical questionnaire to clarify his opinion, asking him whether it would be an acceptable schedule for Plaintiff to awaken at 6:00, apply her ocular moisturizers and drive to work between 7:30 to 8:20 a.m. Dr. Gold answered that that would be an acceptable schedule. In other words, Plaintiff could get to work on time if she were to get up earlier. Upon receipt of this information from Dr. Gold, Plaintiff’s accommodation request was denied as not being medically supported. In the meantime, after expiration of the grace period, Plaintiff’s supervisor began to issue Corrective Action Reports for Plaintiff’s tardiness, which in this time frame was typically around 15 minutes instead of two or three hours. Plaintiff went through the progressive process from counseling to warning to final warning to discharge. She was discharged on May 20, 2015. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 6 of 30 7 LAW AND ARGUMENT 1. Standard for Summary Judgment Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Pursuant to Rule 56, the Court must enter summary judgment against the party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment will be denied only when there is a genuine dispute of material fact, i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). The mere existence of some disputed facts is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). As to materiality, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed “to secure the just, speedy and inexpensive determination of every action.” Id. 327 (quoting Fed. R. Civ. P. 1). 2. UPMC is entitled to summary judgment on both counts. Plaintiff cannot maintain any claims against UPMC under the ADA or the FMLA because this entity was not her employer and it did not participate in any decisions affecting her employment. SOF ¶¶ 5, 9. UPMC Hamot is a separately incorporated wholly-owned subsidiary Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 7 of 30 8 of UPMC. Id. Moreover, UPMC has a Board of Directors, but no employees. Id. In order to be subject to the FMLA, an employer must have at least 50 employees, 29 U.S.C. § 2611 (4). To be subject to the ADA, an employer must have at least 15 employees. 42 U.S.C. § 12111 (5). UPMC is entitled to summary judgment on either ground. A court cannot disregard the separateness of the entities and treat them as a single entity unless Plaintiff has evidence sufficient to create an issue of fact that: UPMC “1) has split itself into entities with less than [fifty or] fifteen employees intending to evade [the statutes’] reach or (2) [UPMC] has directed the subsidiary's discriminatory act of which Plaintiff is complaining.” Nesbit v. Gears Unlimited, Inc., 347 F. 3d 72, 85-86 (3d Cir. 2003). If Plaintiff cannot offer evidence to support either of these standards, then parent liability can be assessed only if Plaintiff has evidence to support “subtantive consolidation,” which the Court of Appeals described as follows: whether two or more entities' affairs are so interconnected that they collectively caused the alleged discriminatory employment practice. More colloquially, the question is whether the “eggs” -consisting of the ostensibly separate companies - are so scrambled that we decline to unscramble them. We note, however, that substantive consolidation is an equitable remedy and is difficult to achieve Nesbit, supra, at 86. The record evidence shows that the decisions affecting Plaintiff’s employment were made only by UPMC Hamot employees. SOF ¶¶ 5, 65. Plaintiff cannot offer evidence that would meet any of the three standards set forth above for treating UPMC and UPMC Hamot as one employer. UPMC is entitled to summary judgment on all counts of the Complaint. 3. Plaintiff cannot establish an FMLA interference claim against UPMC Hamot To establish an interference claim, a plaintiff must show that he or she was entitled to benefits under the FMLA, but was denied the benefits. Lichtenstein v. University of Pittsburgh Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 8 of 30 9 Medical Center, 691 F. 3d 294, 312 (3d Cir. 2012); Sopinski v. Lackawanna Cty., 2016 WL 6826166, at *4 (M.D. Pa. 2016)(citing Mascioli v. Arby's Rest. Grp., Inc., 610 F.Supp.2d 419, 429 (W.D. Pa. 2009). A plaintiff, therefore, must demonstrate that “(1) [he or she] was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA’s requirements; (3) [he or she] was entitled to FMLA leave; (4) [he or she] gave notice to the defendant of [her] intention to take FMLA leave; and (5) [he or she] was denied benefits to which [he or she] was entitled under the FMLA.” Id. at 429-30. See Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014). “An interference action is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.” Id. Here, Plaintiff cannot satisfy the fifth element of a prima facie case for an interference claim. Plaintiff applied for and was granted intermittent FMLA leave, beginning on June 23, 2014. By her own admission, she exhausted her twelve weeks of leave afforded by the Act on March 9, 2015. SOF ¶¶ 20 and 23.4 Throughout that period of time, her supervisor never counted the times when she took intermittent FMLA leave against her for the purposes of applying the Attendance and Tardiness Policy. SOF ¶ 56. Indeed, Plaintiff acknowledged that no supervisor or anyone in Human Resources ever criticized her or said anything negative about her because she took FMLA leave. SOF ¶ 77. Plaintiff also alleges that her discharge interfered with her ability to take FMLA leave in the future, after she would requalify. Complaint at ¶36. That is obviously true, but it does not give rise to an interference claim independent of her retaliation claim, which is discussed below. 4 Plaintiff testified (Dep. at 37-38, Exh. H.): Q. So, did there come a period of time when your FMLA leave expireed, you ran out of the 12 weeks? A. Yes. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 9 of 30 10 When a plaintiff is fired after taking and completing FMLA leave, he or she may sue the employer for retaliation, but not interference, under the FMLA. Lichtenstein v. University of Pittsburgh Medical Center, 2013 WL 6577401 at ** 5-6 (W.D. Pa. Dec. 16, 2013) (“Plaintiff alleges she was fired after she (1) made her request for FMLA leave, (2) completed leave, and (3) returned to work. Under those circumstances, and in accord with the reasoning of the Courts of Appeals for the Sixth and Eighth Circuits, plaintiff's claim is one for retaliation and not interference.”). Judge Conti’s decision was affirmed on this point by the Court of Appeals for the Third Circuit, stating: She does not claim that any benefits were actually withheld, thereby making her claim distinctly not one for interference as we defined such claims in Ross. 755 F.3d at 192. As the District Court properly held, the difference in burdens of proof alone will not allow Lichtenstein to go forward with an interference claim that is “in form and substance ... a claim for retaliation.” Accordingly it was not error to dismiss the claim for interference before trial. Lichtenstein v. University of Pittsburgh Medical Center, 598 Fed. Appx. 109, 114 (3d Cir. 2015). Accord: Seeger v. Cinncinati Bell Telephone Co., LLC, 681 F. 3d 274 (6th Cir. 2012), Loveland v. Employers Mutual Casualty Co., 674 F. 3d 806 (8th Cir. 2012); Stallings v. Hussman Corp., 447 F. 3d 1041, 1051 (8th Cir. 2006), UPMC Hamot is entitled to summary judgment on the FMLA interference claim in Count I of Plaintiff’s Complaint, therefore, because she was given all of the rights to which the FMLA entitled her. 4. Plaintiff cannot establish a FMLA retaliation claim Plaintiff’s claim for retaliation must fail because the record contains no evidence upon which to establish a prima facie case of retaliation. “To prevail on a retaliation claim under the FMLA, Plaintiff must prove that (1) she invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment decision, Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 10 of 30 11 and (3) the adverse action was causally related to her invocation of rights.” Lichtenstein v. University of Pittsburgh Medical Center, 691 F. 3d 294, 302 (3d Cir. 2012). FMLA retaliation claims require proof of the employer's retaliatory intent. Id.; Mascioli v. Arby's Rest. Grp., Inc., 610 F. Supp. 2d 419, 431 and 433 (W.D. Pa. 2009). Claims based on circumstantial evidence proceed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), while claims based on direct evidence proceed under the mixed-motive framework established in Price Waterhouse v. Hopkins, 490 U.S. 228, 276-77 (1989). Lichtenstein, supra, at 302. Innella v. Lenape Valley Found., 152 F. Supp. 3d 445, 457 (E.D. Pa. 2015). Plaintiff has admitted that she was never criticized and nothing negative was ever said to her about her use of FMLA leave. SOF 77. Nor has she any other direct evidence that her use of FMLA leave was a motive for her discharge.5 Thus, her claim must be established, if at all, using the familiar McDonnell Douglas paradigm. A. Plaintiff cannot produce evidence of the causation element Plaintiff’s prima facie case requires evidence that “(1) [she] invoked [her] right to FMLA-qualifying leave, (2) [she] suffered an adverse employment decision, and (3) the adverse action was causally related to [her] invocation of rights.” Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 256 (3d Cir. 2014)(citing Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012). Here, Plaintiff cannot satisfy the third element of the prima facie case because the record is devoid of evidence to support the contention that a causal connection existed between her request for and use of FMLA leave and her termination. To demonstrate causation, a plaintiff 5 Plaintiff testified that she was discharged for excessive tardiness and that she agrees that she was tardy, as charged. Plaintiff’s Dep. 26. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 11 of 30 12 must point to evidence sufficient to create an inference that a causative link exists between her FMLA leave and her termination. Innella v. Lenape Valley Found., 152 F. Supp. 3d 445, 458 (E.D. Pa. 2015)(citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-81 (3d Cir. 2000). “There is no set way to establish a causal connection.” Id. (citing Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) “The requisite causal connection can be established by (1) temporal proximity between the protected activity and the adverse employment action, (2) circumstantial evidence of a “pattern of antagonism” following the protected conduct, or (3) where the proffered evidence, looked at as a whole, suffices to raise the inference.” Id. In this case, the record indicates that no causal connection exists between Plaintiff’s FMLA leave and her termination for several reasons. First, Plaintiff acknowledged that her discharge was the result of her late arrivals and she was tardy on the occasions that prompted her termination. SOF ¶ 66. Second, no one at the time of Plaintiff’s termination stated or suggested that her discharge was because she requested or took FMLA leave. SOF ¶ 66. Third, her supervisor’s, Stacy Lossie’s, actions tend to negate, not demonstrate, retaliatory intent. Ms. Lossie advised her that she should take leave and assisted her with her application. In fact, she “highly recommend [that the Plaintiff]…possibly look into family medical leave” and she provided her with the contact information for UPMC WorkPartners. SOF ¶¶ 15-16. Ms. Lossie thereafter continued to create a positive workplace climate for taking FMLA leave by educating her staff members on their rights under the FMLA. Indeed, she instructed all employees that they were entitled to take FMLA leave at the staff meeting in February of 2015. SOF ¶ 55. Fourth, there is no temporal nexus that would support an inference of retaliation. Plaintiff requested FMLA leave on July 9, 2014, but she was not discharged until May 21, 2015, which is more than two months after she had completed her leave. SOF ¶¶20, 23, and 65. The temporal Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 12 of 30 13 proximity will not support an inference causation. Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir. 2004) (passage of two months between protected act and adverse action does not permit an inference of causation). B. Defendant has articulated a legitimate non-discriminatory reason for Plaintiff’s Discharge Even if Plaintiff could establish a prima facie case, which she cannot, UPMC Hamot nonetheless has articulated a legitimate, non-discriminatory reason for her termination. See Chapman v. UPMC Health Sys, 516 F. Supp. 2d 506, 526 (W.D. Pa. 2007). Specifically, Plaintiff was discharged for excessive tardiness. From April 20, 2015 until May 20, 2015, Plaintiff was late for work nineteen (19) times, which violated UPMC Hamot’s written Attendance and Tardiness Policy and warranted discharge under that Policy. SOF ¶¶ 46-48 and 59-626. . C. Plaintiff cannot demonstrate that the reasons for her termination were pretextual Plaintiff can still defeat summary judgment if she can point to evidence that the employer’s explanation is false, or to other evidence tending to show a retaliatory intent. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638 (3d Cir. 2015): In Fuentes v. Perskie, this Court recognized two ways in which a plaintiff can demonstrate that the employer's legitimate, nondiscriminatory reason was pretextual. The first way to show pretext is for the plaintiff to point to evidence that would allow a factfinder to disbelieve the employer's reason for the adverse employment action. In order to raise sufficient disbelief, the evidence must indicate “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons” to satisfy the factfinder that the employer's actions could not have been for nondiscriminatory reasons. Id. Alternatively, the second way a plaintiff can establish pretext is to point to evidence that would allow a factfinder to believe that an invidious discriminatory reason was “more likely than not a motivating or determinative 6 In fact, after Plaintiff’s FMLA leave expired, she was given a four week grace period to adjust to arriving on time, during which period she was not disciplined for being late. During that period, she was late 18 out of 22 work days for which she received no discipline. SOF ¶ 47, 41. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 13 of 30 14 cause” of the employer's action. Specifically, the plaintiff can show pretext this way by presenting evidence “with sufficient probative force” so as to allow the factfinder to “conclude by a preponderance of the evidence that age was a motivating or determinative factor.” Id. at 644-45. [Citations omitted]. The record illustrates that Plaintiff possesses no evidence from which a fact finder reasonably could disbelieve UPMC Hamot’s explanation for the discharge or from which a fact finder reasonably could believe that an invidious discriminatory reason was more likely than not a determinative cause. i. Plaintiff cannot Discredit UPMC Hamot’s Explanation In this case, no reasonable fact finder could disbelieve UPMC Hamot’s proffered reason for Plaintiff’s termination. When asked at her deposition, Plaintiff admitted that she was discharged because of excessive tardiness and she also admitted the tardiness. She has admitted being given each of the four progressive Corrective Action Reports reflecting 19 tardy arrivals between April 13, 2015 and May 20, 2015 and that the reports of tardiness in those Corrective Action Reports are accurate.7 Plaintiff’s Dep. 57-59, Exhs. R, S, T, U. Rather than casting doubt on the truth of Defendant’s explanation for her discharge, Plaintiff’s testimony tends instead to confirm it. ii. Plaintiff has no evidence that an invidious discriminatory reason resulted in her discharge Plaintiff lacks evidence from which a fact finder reasonably could believe that an invidious discriminatory reason was more likely than not a motivating factor or determinative cause in connection with UPMC Hamot’s decision to discharge her. As was reviewed above, Plaintiff acknowledged that no one in management or Human Resources criticized or said anything negative to her about her use of FMLA leave. SOF ¶ 77. 7 With respect to each Report, Plaintiff was asked: “Do you dispute the accuracy of what is said here about when you were getting to work? Plaintiff answered in each case that she does not dispute their accuracy. Id. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 14 of 30 15 She also acknowledged that no one in management or Human Resources said anything to her to indicate that he or she was biased against her because of her health condition. SOF ¶ 78. And her supervisor encouraged and facilitated her use of FMLA leave. SOF ¶¶ 15-16, 55. The ways a discriminatory motive is typically shown, the Court of Appeals has stated, are: (1) whether the employer previously discriminated against Plaintiff; (2) whether the employer has discriminated against other persons within Plaintiff’s protected class or within another protected class; and (3) whether the employer has previously treated more favorably similarly situated others outside of the protected class. Willis v. Children’s Hospital, supra, at 645; Simpson v. Kay Jewelers, 142 F.3d 639, 644-45 (3d Cir. 1998). A review of the record yields no evidence to show a discriminatory motive in the ways suggested in the Willis decision. First, Plaintiff has not alleged and cannot produce any evidence to show that UPMC Hamot previously discriminated against her. Second, she has not adduced and cannot adduce any evidence that UPMC Hamot has discriminated against any similarly situated employees or any members of another protected class. Third, she has not shown and cannot show that her former employer treated similarly situated employees outside of her protected class more favorably. Plaintiff admitted that she does not know whether any of her co- workers were late as often or as many hours as she was. Plaintiff’s Dep. 68-69. She also admitted that she does not know whether those employees were disciplined when they were late. Id. Moreover, in February2015, Ms. Lossie had a meeting with her managers in which they, among other things, discussed the need to follow the Attendance and Tardiness Policy. SOF ¶ 51. Prior to this meeting, Ms. Lossie was lenient with respect to her employees, including Plaintiff, about the Attendance and Tardiness Policy and she did not discipline them for violating it. SOF ¶52. After this meeting, Ms. Lossie recognized “I have to start doing this ([following Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 15 of 30 16 the policy)],”she scheduled a staff meeting, where plaintiff was present, and announced, “we are to follow it ([the policy]),” and “I am implementing and beginning…[the] time and attendance policy across the board.” SOF ¶¶51-55. Thereafter, there were no employees, other than plaintiff, who had three (3) or more late arrivals or absences in a period of one-hundred and twenty (120) days and who had received no discipline. SOF ¶71. On the record before the Court, no reasonable fact finder could conclude that an invidious discriminatory reason was more likely than not a motivating factor or a determinative cause of plaintiff’s discharge. 5. Plaintiff’s claim for discrimination under the ADA cannot withstand summary judgment. Plaintiff’s ADA claims must fail because her health condition did not rise to the level of a disability, she was not an otherwise qualified individual, her employer had a legitimate, non- discriminatory reason for her termination - her repeated tardiness, and she cannot establish that the reason given for her termination was pretextual.8 The ADA prohibits an employer from discriminating against “a qualified individual on the basis of disability in regard to …discharge of employees … and other terms and conditions of employment.” 42 U.S.C. § 12112 (a). A qualified individual with a disability is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds ….” Id. at 12111(8). Plaintiff cannot point to any direct evidence of a discriminatory reason for her discharge.9 She, must, therefore, establish her claims by resorting to indirect or circumstantial evidence 8 Plaintiff’s claim that she was not reasonably accommodated is discussed, supra, at 22. 9 As noted above, Plaintiff testified that she was told that she was being discharged because of her record of tardiness, and she also admitted that no manager or Human Resources employee said anything to suggest that they were biased against her because of her medical condition. Plaintiff’s Dep. 59, 65-66 Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 16 of 30 17 under the familiar McDonnell Douglas standard, discussed above. Toth v. California University of Pennsylvania, 844 F. Supp. 2d 611, 636 (W.D. Pa. 2012). Plaintiff’s overall burden is to prove that her disability was the “but for” cause of her discharge. University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2533 (2013). A. Plaintiff cannot establish a prima facie case of discrimination To establish a prima facie case of disability discrimination, the employee bears the burden of demonstrating (1) that he or she has a disability, (2) that he or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he or she was nonetheless terminated or otherwise prevented from performing the job. Plaintiff must make a prima facie showing that reasonable accommodations that would permit her to perform her job are available. Taylor v. Phoenixville Sch. Dist, 184 F.3d 296, 306 (3d Cir. 1999). ;Shiring v. Runyon, 90 F. 3d 827, 831 (3d Cir. 1996). Here, the record shows that Plaintiff cannot make a prima facie case of disability discrimination because she was neither disabled nor an otherwise qualified individual. i Plaintiff was not disabled Plaintiff identifies her alleged disability as Sjorgren’s Syndrome. Plaintiff’s Dep. 16. She has dry eyes that tear up and are sensitive to fluorescent lights. They get blurry at times and it is hard to see. Id. The ADA Regulations define a disability as: “(1) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.” 29 C.F.R. § 1630.2(g). For the purposes of these regulations, the qualification “substantially limits” means that one is: (i) unable to perform a major life activity that the average person in the general Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 17 of 30 18 population can perform or (ii) significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. § 1630.2(j) (1). The factors to ascertain whether a particular “disability” is of such severity as to come within the protection intended under the ADA include: (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. § 1630.2(j)(2). “Disabilities,” which are temporary, do not, by definition, rise to the level of substantially limiting a major life function. Kelly v. Horizon Med. Corp., 2014 WL 1293859, at *11 (M.D. Pa. 2014) (citing In re Carnegie Ctr. Associates, 129 F.3d 290, 303 (3d Dir. 1997) Here, plaintiff’s impairment was not a disability because it did not substantially limit a major life activity. As an initial matter, on March 12, 2015, Dr. Espander, Plaintiff’s first treating physician, submitted a Medical Inquiry Form in connection with Plaintiff’s request for a reasonable accommodation which stated that she did not have a disability that substantially limits a major life function, and stating that her issues were temporary allergies. SOF ¶29. Furthermore, a Dr. Philip Police provided a letter dated April 6, 2015 that stated that Plaintiff “may return to work without restrictions.” Plaintiff’s Dep. 49-50, Exh. L. [Emphasis added]. Another of Plaintiff’s physicians, Dr. Kenneth Gold, sent a letter to UPMC WorkPartners dated May 12, 2015, describing Plaintiff’s medical restrictions as follows: “she [had] difficulty seeing in the morning when she first awakens and [it] is therefore dangerous for her to drive in the very early morning.” SOF ¶35. [Emphasis added] Plaintiff’s Sjogren’s was therefore, a transitory Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 18 of 30 19 and temporally limited impairment in the sense that Plaintiff had issues with her eyes only when she first awakened and in the very early morning. This is consistent with the objection that Plaintiff wrote in response to one of her warnings. Plaintiff’s Exh. R, p. 2. Plaintiff first noticed symptoms at the end of 2013 or the beginning of 2014, according to her testimony. Id. 17. She was first diagnosed with Sjorgren’s in or around early May 2015. Id. 17, 53, Exh. P. Plaintiff began working in November 2015 for another employer doing the same job as she did at UPMC Hamot. Id. 11, 14. She works the same hours, 8:30 to 5:00. She has not requested any accommodations and gets to work on time. Id. 14. She attributes this to the fact that her condition has improved so that it does not have the same effect. Id. 71-72. Plaintiff’s impairment was, therefore, temporary, in the sense that its transitory effect lasted for a relatively short period of time. Defendant submits that a condition that causes blurred vision for a short time in the morning, and which resolved or greatly resolved within months after Plaintiff left her UPMC Hamot employment and after she was first diagnosed is not an impairment that substantially affects a major life activity. ii. Plaintiff was not an otherwise qualified individual Plaintiff was not an otherwise qualified individual because the record demonstrates that she could not attend work on a predictable and reliable basis.10 A prima facie case of discrimination under the ADA requires that Plaintiff show, inter alia, that he or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations. Williams v. Philadelphia Housing Auth. Police, 380 F. 3d 751, 761 (3d Cir. 2004) and 29 C.F.R. §1630.2(m). Under the ADA, job functions are 10 Defendants will address the issue of accommodation later in this brief. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 19 of 30 20 considered either essential or marginal, and only essential job functions are relevant to whether an individual is qualified under the ADA. 29 C.F.R. § 1630.2(m) and (n)). The EEOC’s regulations define “essential functions” as “fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). For the purposes of the ADA, punctuality and regular attendance are considered to be essential functions. Smith v. Lattimore Materials Co., 287 F. Supp. 2d 667, 672 (E.D. Tex. 2003), aff’d 77 F. App’x 729 (5th Cir. 2003)(“Reporting on time and regular attendance is an essential function of any job” and “the requirement that employees arrive at work punctually is a legitimate business reason”); Earl v. Mervyns Inc., 207 F.3d 1361 (11th Cir.2000)(Punctuality was an essential function of the job where the employee was charged with opening a department in a small retail store); and Miller v. Univ. of Pittsburgh Med. Ctr., 350 F. App’x 727, 729 (3d Cir. 2009)(“Attendance can constitute an essential function under the ADA”). This would be especially true in a small workplace with fixed hours, such as Healthy Families, where the employee performs the gatekeeping role with the patients, such as the Plaintiff did. Healthy Families was a small family care doctors’ office, which had three doctors and two nurse practitioners that saw patients at the office. Plaintiff’s Dep 22-23. Plaintiff was a Medical Office Assistant, whose duties involved answering the telephones, scheduling appointments, checking patients in and out. Id. at 23-24. Obviously, her work hours had to coincide with the hours that patients were there. The Office had regular hours that it was open, which started at 7:30 a.m. each day. SOF ¶ 14. Plaintiff’s schedule in the months leading up to her discharge began at 8:30 a.m. SOF ¶ 3. The Office Assistants, like Plaintiff, have a critical role in keeping the patient flow going. SOF ¶ 12-13. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 20 of 30 21 Healthy Families had a time and attendance Policy that provided for progressive discipline for tardiness and absenteeism. SOF 46, 48; Plaintiff’s Dep. Exh. B An employee who is late three times in a 120-day period is given counseling; if she is late three more times in the next 120 days she was given a written warning; if she was late one more time in the next 120 days, she was given a final warning. Another tardiness within the 120 days after a final warning would result in termination. Id. Plaintiff historically had issues with tardiness and she was the subject of counseling and discipline in 2013. Plaintiff’s Dep. 29-30, Exhs. C, D. She blamed issues with child care for her tardiness in response to those warnings. After she began experiencing eye issues, Plaintiff applied for intermittent FMLA leave, which was granted on July 29, 2014. SOF 20-21. Before Plaintiff’s FMLA intermittent leave was approved, she was late for work 15 times in the months of June and July 2014, most of which were for periods of 15 minutes or less. Plaintiff’s Dep. 34-35, Exh. G11. After approval of FMLA leave, Plaintiff’s tardiness deteriorated dramatically. Beginning August 13, 2014 Plaintiff was late for work every day until March 23, 2015, a span slightly in excess of 7 months. In the first six weeks of her FMLA intermittent leave period, which was during the summer, Plaintiff was absent on average approximately two hours a day every day.12 SOF, Exh. A. From September 30, 2014 through March 18, 2015, Plaintiff was late every single day by more than three hours, except October 27 and 28 and January 27 and 28, on which dates she was late by substantially more than two hours. Id. After Plaintiff’s FMLA leave was exhausted, on March 9, 2015, her supervisor gave her a period of four weeks to adjust 11 Exhibit G are the swipe in and out records for Plaintiff, covering June 2014 through May 2015, the month in which she was discharged. Those records show when Plaintiff arrived at work and when she left during this period. 12 Exhibit A to the Defendants’ Concise Statement of Material Facts is a summary of Exhibit G, the Plaintiffs’ attendance record, for June 2014 until May 2015. It shows every work day in this time period and how many minutes the Plaintiff was late. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 21 of 30 22 to arriving on time. SOF ¶ 47. Plaintiff continued to be absent frequently - she was tardy every day except 3 in this adjustment period. SOF Exh. A. Thereafter, from April 13 until her discharge on May 20, 2015, Plaintiff continued to be tardy far in excess of what was permitted under the Time and Attendance Policy. SOF ¶¶ 59-64 Plaintiff was not disciplined for FMLA-protected absences. (SOF ¶ 56) Nevertheless, this record of unpredictable and unreliable attendance demonstrates that she was not “otherwise qualified” under the ADA. An employer is entitled to set attendance standards and to hold employees to those standards, subject to its duty to accommodate a disability, an issue discussed below. However, it is not reasonable to expect an employer whose office hours are fixed and whose patient-flow persists during those hours, to accommodate an employee by permitting arrivals that are three to four hours late. That would convert Plaintiff’s job into a part-time job. Indeed, on many days that Plaintiff was four hours late, arriving after 12:30, the office would close at 3:00. SOF ¶ 14. Plaintiff refused to work past 5:30 on Mondays, one of the two days that the Practice was open until 7:30, because of child care issues. SOF ¶45a-45b. Defendants are entitled to summary judgment because plaintiff has not shown that she can establish a prima facie case, both because she is not disabled and also because she is not an “otherwise qualified” individual with a disability. C. Plaintiff cannot demonstrate that the reasons for her termination were pretextual. Even if one assumes that Plaintiff has evidence to establish the elements of a prima facie case under the ADA, UPMC Hamot has articulated a legitimate non-discriminatory reason for plaintiff’s discharge, shifting the burden to plaintiff to demonstrate, under the legal standards discussed above, see pages 11-12 infra, that the explanation is a pretext intended to mask an unlawful disability-discriminatory motive. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 22 of 30 23 i. There is no evidence to discredit UPMC Hamot’s stated reason for plaintiff’s termination In this case, no reasonable fact finder could disbelieve UPMC Hamot’s explanation for plaintiff’s termination. As discussed infra, at 11, Plaintiff admitted that she was discharged because of excessive tardiness and she also admitted the tardiness. She has admitted being given each of the four progressive Corrective Action Reports reflecting 19 tardy arrivals between April 13, 2015 and May 20, 2015 and that the reports of tardiness in those Corrective Action Reports are accurate. Plaintiff’s Dep. 57-59, Exhs. R, S, T, U. She can offer no evidence that her supervisor harbored a bias that caused her to fabricate the reason for plaintiff’s discharge. Indeed, Plaintiff admits that no one in management or Human Resources said anything to indicate a bias against her because of her health condition. SOF ¶78. ii. There is no evidence that an invidious discriminatory intent was more likely a determinative cause of UPMC Hamot’s actions The record is bereft of evidence to support a claim of pretext under this prong of the pretext analysis, as discussed above. See infra, at 12. First, plaintiff does not claim and has not established that UPMC Hamot previously discriminated against her. Second, plaintiff has not produced and cannot provide any evidence to establish that UPMC Hamot has discriminated against any similarly situated employees or any members of another protected class. Third, plaintiff has not shown and cannot show that other similarly situated non-disabled employees were treated more favorably. Although Plaintiff has speculated that her supervisor did not apply the Attendance and Tardiness Policy to the other employees who were late and who had no disability, Plaintiff’s Dep. 68-69, as discussed above, infra, at 13, such speculation lacks a foundation in fact. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 23 of 30 24 In light of the foregoing, no reasonable fact finder could conclude that an invidious discriminatory reason was more likely than not a motivating factor or a determinative cause of Plaintiff’s discharge. 6. Plaintiff’s Claim for Discriminatory Relation Must Fail Under the ADA, it is unlawful to retaliate against an employee because he or she requested a reasonable accommodation for a disability. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, (3d Cir. 2010); Shellenberger v. Summit Bancorp, 318 F.3d 183, 191 (3d Cir. 2003); and Section 12203(b). Retaliation claims, like the discrimination claim discussed supra, follow the familiar McDonnell Douglas path, where, as here, there is no direct evidence of retaliation. Marra v. Philadelphia Hous. Authority, 497 F.3d 286, 300 (3d Cir. 2007). A prima facie case of ADA retaliation requires a showing that the employee requested an accommodation; adverse action by the employer after the request, and a causal connection between the employee’s protected activity and the employer’s adverse action. Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002). Plaintiff’s retaliation claim, like her discrimination claim, requires her to point to evidence that a disability-related animus or a retaliatory motive actuated her discharge and to establish that her employer’s explanation for her termination is false - a pretext for unlawful discrimination. For the reasons stated above, Plaintiff cannot do either; therefore, her retaliation claim cannot survive summary judgment. 7. Plaintiff’s Reasonable Accommodation Claim Is Not Supported by the Evidence. The record demonstrates that Plaintiff cannot prevail on her accommodations claims because the requested accommodation was not necessary for Plaintiff to perform the essential functions of her job, and her employer repeatedly engaged in the interactive process with her. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 24 of 30 25 The ADA prohibits “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability … unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business.” 42 U.S.C. § 12112 (b)(5)(A); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). To determine whether an accommodation is reasonable, the employer must consider: (1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee. 29 C.F.R. § 1630.9(a). “An accommodation is ‘reasonable’ and necessary under the ADA… only if it enables the employee to perform the essential functions of the job.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1259-60 (11th Cir. 2001); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998). See also 29 C.F.R. § 1630.2(o)(1)(ii). In conducting this inquiry, courts utilize a “‘fact-specific, case-by-case inquiry that considers among other factors, the effectiveness of the modification in light of the nature of the disability in question and the cost to the organization that would implement it.’” Mucci v. Rutgers, Civ. A., 2011 WL 831967, at *21 (D.N.J. 2011) (quoting Staron v. McDonald's Corp., 51 F.3d 353, 356 (2d Cir. 1995)). B. The Requested Accommodation of a later starting time was not reasonable Plaintiff’s requested accommodation of an adjustment to her starting time was not reasonable because it was not necessary in order to permit Plaintiff to arrive at work on time. Walton v. Mental Health Ass’n. of Se. Pa., 168 F.3d 661, 670 (3d Cir. 1999)(an accommodation is unreasonable as a matter of law if it is not effective to permit Plaintiff to perform all of the essential functions of the job). Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 25 of 30 26 Dr. Gold, Plaintiff’s physician, initially requested that Plaintiff start work at 9:00 A.M. so that she could apply her moisturizers in the morning and then drive to work. SOF ¶35. Plaintiff’s house was a 10-15 minute drive from Healthy Families. Plaintiff’s Dep. 8. In response to a written question from WorkPartners, however, Dr. Gold clarified that Plaintiff would have been able to arrive at work before the start of her shift - 8:30 A.M. - if she simply woke up earlier in the morning. SOF ¶37. Indeed, he, responding to the Medical Questionnaire that UPMC WorkPartners sent him, confirmed that it was acceptable for Plaintiff to awaken at 6:00 A.M., to apply her ocular moisturizers at 6:30 A.M., and to drive to work between 7:30 A.M. to 8:20 A.M. SOF ¶37 (Emphasis added). According to her own physician, therefore, and the only medical provider to suggest a later starting time as an accommodation, Plaintiff’s request to postpone her starting time was not reasonable because it was not necessary in order to permit Plaintiff to perform the essential function of compliance with Healthy Families’ Time and Attendance Policy. By getting out of bed earlier, Plaintiff could arrive at work on time. Plaintiff’s purported disability did not, therefore, prevent her from arriving to work on time. It simply represented the manifestation of a personal preference for a particular start time. Adjusting her scheduled was not, therefore, a reasonable accommodation that the ADA requires. See Dudley v. N.Y. City Hous. Auth., 2014 WL 5003799, at *35 (S.D.N.Y. Sept. 30, 2014)(Court dismissed a failure to accommodate claim where, as here, the employee’s start time did not prevent him from arriving to work on time, simply leaving for work earlier would have allowed him to meet his start time each day, and his expressed start time amounted to a personal preference as opposed to a necessity); Raffaele v. City of New York, 2004 WL 1969869, at *16 (E.D.N.Y. 2004) (“The ADA does not obligate the employer to meet the personal preferences of disabled employees.... Accommodations need only be ‘sufficient to meet the job-related needs of Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 26 of 30 27 the individual being accommodated.’ Difficulties commuting to a job need not be accommodated”); Felix v. N.Y.C. Transit Auth., 324 F.3d 102, 107 (2d Cir. 2003) (“The ADA mandates reasonable accommodation of people with disabilities in order to put them on an even playing field with the non-disabled; it does not authorize a preference for disabled people generally.”); Lyons v. Legal Aid Soc., 68 F.3d 1512, 1516 (2d Cir. 1995) ( “[T]he [ADA's] accommodation obligation does not require the employer to make accommodations that are ‘primarily for the [individual’s] personal benefit,’ such as an ‘adjustment or modification [that] assists the individual throughout his or her daily activities, on and off the job,’ or to provide ‘any amenity or convenience that is not job-related.’”). The requested accommodation also was not necessary because Plaintiff could have taken public transportation to her place of employment, easily arriving at work on time. The evidence shows that Plaintiff had the option of either of two buses, which had stops less than a mile from her home, and which would have gotten her to work at 7:57 A.M. or 8:02 A.M. at the latest - well before her start time at 8:30 A.M. SOF ¶ 45k-l. Ms. Lossie offered to change Plaintiff’s start time to 9:00 three times, if Plaintiff would make up the time by working later on the two days that the Practice was open until 7:30, but Plaintiff declined this offer because she did not want to work in the evenings. SOF ¶ 45a-b. Plaintiff acknowledges that this offer was made, but claims that she rejected it because of child care issues. SOF ¶ 45c. Had Plaintiff been willing to make other arrangements for childcare, she would have had the accommodation that her doctor recommended - a 9:00 a.m. starting time. Plaintiff’s supervisor, Ms. Flossie, testified that she offered to give Plaintiff a ride to work, since she drove by her house every day, but that Plaintiff refused the offer because leaving her house between 8:00 and 8:30 “was too early for her.” SOF ¶ 45n. Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 27 of 30 28 Finally, Plaintiff had the option of taking public transportation to and from work, which would have eliminated the need to drive after taking her medication. There were bus stops a block and a half from Health Families and less than half a mile from Plaintiff’s home, with schedules that would have permitted her to get to work on time, had she chosen to use public transportation. SOF ¶ 45K, 45L. Besides being necessary, a proposed accommodation must also be effective. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002) (“It is the word “accommodation,” not the word “reasonable,” that conveys the need for effectiveness. An ineffective “modification” or “adjustment” will not accommodate a disabled individual's limitations.”); Walton v. Mental Health Ass'n of Southeast PA., 168 F.3d 661, 670 (3d Cir. 1999) (“Under our precedent, the plaintiff bears the initial burden of proving that he is qualified and, “if an accommodation is needed, the plaintiff must show, as part of [his] burden of persuasion, that an effective accommodation exists that would render [him] otherwise qualified.”) It is evident that extending Plaintiff’s starting time by a half hour, or even by an hour, would not have permitted her to get to work on time, rendering her “otherwise qualified.” As discussed above, most of the time over the seven-month period before she requested an adjustment of her starting time, Plaintiff had arrived to work two to four hours late. Indeed, only four days was she less than three hours late. SOF Exh. A. Plaintiff cannot meet her burden, on these facts, of showing that a reasonable jury could conclude that extending her starting time by a half or one hour would have been effective, in the relevant sense. Plaintiff clearly had alternatives that would have gotten her to work on time without an adjustment to her schedule, but she was unwilling to pursue those alternatives. It is clear that an Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 28 of 30 29 adjustment to Plaintiff’s starting time was not necessary to permit plaintiff to arrive at work on time. C. UPMC Hamot Engaged in the Interactive Process in Good Faith. Plaintiff cannot point to any evidence in the record to establish that her employer failed to meet its obligations to participate in the interactive process in good faith. To show that an employer has violated its duty to engage in the interactive process, a disabled employee must demonstrate: (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. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319-320 (3d Cir. 1999). Here, Plaintiff fails to satisfy either the third or the fourth prongs of this standard. With respect to the third prong, the record is replete with examples of how Plaintiff’s employer assisted her with requesting a reasonable accommodation. First, Ms. Lossie instructed Plaintiff to request a reasonable accommodation. SOF ¶22. Second, Ms. Lossie gave Plaintiff a transition period in which she did not apply the Attendance and Tardiness Policy, after her intermittent FMLA leave expired so that she could request the reasonable accommodation and could go through the process. SOF ¶45p. Third, Ms. Lossie waited to terminate Plaintiff even after her received her final warning so that she could go through the interactive process with UPMC WorkPartners. SOF ¶63. Fourth, UPMC WorkPartners reviewed Plaintiff’s request for a reasonable accommodation three times, reopening it each time she contacted the disability specialist or providing additional information about her health condition. SOF ¶¶25-35. Fifth, UPMC WorkPartners, in an effort to understand the precise limitations of Plaintiff’s health Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 29 of 30 30 condition and what was medically necessarily contacted her health care providers and solicited further information via Medical Questionnaires. SOF ¶¶29, 33, 36. Finally, Plaintiff’s supervisor actually provided her with multiple accommodations throughout her employment, such as permitting her to wear sunglasses, closing the blinds, shutting off the lights, giving her a transition period before imposing discipline, and offering to bring her to work. SOF ¶ 45a. Plaintiff’s supervisor and UPMC WorkPartners, furthermore, also discussed her using a ride sharing program with other employees. SOF 45r. As mentioned above, Ms. Lossie discussed modifying Plaintiff’s work schedule so that she could have had the requested start time, but which would have required her to work later one extra evening per week. SOF ¶45a-c. Clearly, there was good faith interaction with Plaintiff to address ways to accommodate her alleged disability. 8. CONCLUSION For all of the foregoing reasons, the Defendants respectfully request this Honorable Court to grant their Motion for Summary Judgment as to both counts of Plaintiff’s Complaint. Respectfully submitted, s/ John J. Myers f John J. Myers, PA I.D. No. 23596 Derek J. Illar, PA I.D. 307492 Eckert Seamans Cherin & Mellott, LLC U.S. Steel Tower 600 Grant Street, 44th Floor Pittsburgh, Pennsylvania 15219 412.566.5900 Counsel for Defendants Case 1:16-cv-00053-BR Document 22 Filed 01/13/17 Page 30 of 30