Opinion
2:20-CV-01293-JFC-CRE
03-09-2022
THOMAS E. DOYLE, JR, Plaintiff, v. SENNECA HOLDINGS, INC, Defendant,
Joy Flowers Conti United States District Judge
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
This civil action involves Plaintiff Thomas Doyle, Jr., who was formerly employed by Defendant Senneca Holdings, Inc. Plaintiff claims he is entitled to damages after being terminated from his employment at Defendant due to his disability. Plaintiff's complaint sets forth claims for disability discrimination pursuant to the Americans With Disability Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.C.S. § 951 et seq. See Compl. (ECF No. 1). This Court has subject matter jurisdiction over the controversy pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the PHRA claim pursuant to 28 U.S.C. § 1367.
Presently before the court is a motion by Defendant for summary judgment with respect to all claims. (ECF No. 31). For the reasons that follow, it is respectfully recommended that Defendant's motion for summary judgment be granted in part and denied in part.
II. REPORT
A. Factual and Procedural Background
By way of background, Plaintiff was hired by TMI, Inc., as a Customer Services Representative on August 15, 2015. Compl. (ECF No. 1) at ¶¶ 11-12. Defendant acquired TMI, Inc., in mid-2017. Def.'s Br. (ECF No. 32) at 3. “[Defendant] is a diversified management and holding company for multiple platform businesses in the specialty door industry.” Id. at 2. Immediately after Defendant acquired TMI, Defendant “appointed [P]laintiff to a Material Handling Inside Sales position reporting to Chris Cummings.” Id. at 3. “Effective February 5, 2018, [Defendant] promoted [P]laintiff to the position of Inside Sales Representative reporting primarily to Chad Cizinsky, VP of Sales for the United States and Canada.” Def.'s Concise Statement of Material Facts (“CSF”) (ECF No. 34) at ¶ 1; Pl.'s CSF (ECF No. 38) at ¶ 1. Plaintiff was assigned the responsibility of supporting “three Outside Sales Representatives covering the South Eastern Territories, Patrick Kearney, Matt Boni, and AJ Sigmon.” Def.'s Br. (ECF No. 32) at 3.
Plaintiff advised Robert Hinckley, a Vice President in Pittsburgh, that Plaintiff would be working from home on February 9, 2018. In response, Hinckley “cautioned plaintiff to ‘remember that the job location is in the office.'” Def.'s CSF (ECF No. 34) at ¶ 3; Pl.'s CSF (ECF No. 38) at ¶ 3. Subsequently, on May 30, 2018, at 11:50 p.m., Plaintiff emailed Hinckley, Kearney, Boni, and Sigmon to inform them that he would be working from home on May 31, 2018. Def.'s Br. (ECF No. 32) at 4. Plaintiff was informed that he needed to report to the office. Id. Nevertheless, Plaintiff did not report to the office on either May 31, 2018, or the following day, June 1, 2018. Id.
At that point, Hinckley and Theresa Eberwine, Corporate Human Resources & Safety Manager, reached out to Plaintiff regarding these absences. Id. Plaintiff informed Defendant that he was working from home due to his having anxiety attacks. Id. Hinckley directed Plaintiff to report back to the office on Monday, June 4, 2018, and Plaintiff was informed that working from home was not an option moving forward. Id. On June 6, 2018, Plaintiff sent an email to Hinckley and Eberwine, attaching a note from Plaintiff's doctor, which stated the following: “[Plaintiff] has been under my medical care since 8/22/2016. He has been diagnosed with Generalized Anxiety Disorder. He may benefit from work accommodations such as work-from-home opportunities, if available.” Note from Dr. Kotar (ECF No. 35) at Exhibit 13.
At that point, Eberwine inquired internally about whether Plaintiff's position was suitable as a work-from-home position and whether Plaintiff would be a candidate for such work arrangements. Cizinsky responded that “[i]n [his] opinion, this position is an office[-]based position for a person with his tenure of experience, mainly because he does not know all of the products he manages to the extent that we need him to. Having resources available to get answers, being in the plant to check on things that need to be addressed and helping others on his team is all part of the job.” Email from Cizinsky (ECF No. 35) at Exhibit 14. In addition, Cizinsky stated that he had “received feedback form [sic] the reps [Plaintiff] works with, that he would be more than likely to be taking part in other activities not related to his position during working hours, specifically, [he was] told [Plaintiff] has an affinity for casinos.” Id.
On June 19, 2018, Plaintiff informed Cizinsky that he would not be in the office due to his taking care of a sick child. He also inquired about how his sick days would be handled moving forward. Def.'s Br. (ECF No. 32) at 4. The following day, June 20, 2018, Eberwine sent a letter to Plaintiff stating that more information from Plaintiff's doctor was needed to evaluate the work-from-home request, and Eberwine informed Plaintiff that such information should be provided by June 30, 2018. Letter from Eberwine (ECF No. 35) at Exhibit 15. In addition, Eberwine informed Plaintiff that he had the right to apply for and take up to 12 weeks of leave pursuant to the Family and Medical Leave Act (“FMLA”). Id. Eberwine provided Plaintiff with the necessary paperwork to fill out if he were interested in making such a request. Plaintiff did not report to work again after June 19, 2021.
On June 26, 2021, Plaintiff responded to Eberwine acknowledging her email and stating that he had reached out to his doctor to obtain the information she requested. Email from Plaintiff (ECF No. 35) at Exhibit 17. In that email, Plaintiff requested that he be accommodated by “being able to work from home, work a flexible schedule, and/or maintain a private office” to reduce interactions with others. Id. On June 28, 2018, Eberwine informed Plaintiff he had exhausted all of his sick time and had only eight hours of vacation time remaining. Id. As of July 12, 2018, Plaintiff had not communicated further with Defendant, and on July 12, 2018, Defendant terminated Plaintiff's position for abandonment.
On October 16, 2018, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”). Compl. (ECF No. 1) at ¶¶ 8-9. On August 20, 2020, Plaintiff received notice of his right to sue. Id. at ¶ 10.
Plaintiff filed the instant action on September 1, 2020. Compl. (ECF No. 1). On November 2, 2020, Defendant filed an Answer (ECF No. 5), and the undersigned entered a case management order setting forth a discovery schedule. (ECF No. 20). Pursuant to the case management order, Defendant filed a motion for summary judgment, brief in support thereof, CSF, and appendix on September 27, 2021. (ECF Nos. 31, 32, 34, 35). Plaintiff filed a responsive brief, CSF, and appendix on October 27, 2021. (ECF Nos. 37, 38). Defendant filed a Reply on November 10, 2021, and this matter is ripe for disposition.
B. Standard of Review
Summary judgment is appropriate when the moving party establishes “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. Pro. 56(a). A genuine issue of material fact is one that could affect the outcome of litigation. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” N.A.A.C.P. v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The initial burden is on the moving party to adduce evidence illustrating a lack of genuine, triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its burden, the non-moving party must present sufficient evidence of a genuine issue, in rebuttal. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). When considering the parties' arguments, the court is required to view all facts and draw all inferences in the light most favorable to the non-moving party. Id. (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt will be given to allegations of the nonmoving party when in conflict with the moving party's claims. Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp. v. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir. 1995)).
Nonetheless, a well-supported motion for summary judgment will not be defeated where the non-moving party merely reasserts factual allegations contained in the pleadings. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits, depositions, admissions, and/or interrogatories to demonstrate the existence of a genuine issue. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (citing Celotex Corp., 477 U.S. at 324).
C. Discussion
1. Framework for an ADA Claim
By way of background, “Congress enacted the ADA in 1990 in an effort to prevent otherwise qualified individuals from being discriminated against in employment based on a disability.” Gaul v. Lucent Techs., Inc., 134 F.3d 576, 579 (3d Cir. 1998). “A discrimination claim under the ADA is analyzed under the familiar burden shifting of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).” Rubano v. Farrell Area Sch. Dist., 991 F.Supp.2d 678, 699 (W.D. Pa. 2014). “Under this framework, initially, the plaintiff bears the burden of establishing a prima facie case of discrimination.” Id. “If the plaintiff successfully establishes a prima facie case, the burden then shifts to the employer to articulate some legitimate non-discriminatory reason for the adverse employment action.” Id. at 699-700. “Once the employer carries its burden, the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons proffered by the employer were merely a pretext for discrimination, and not the true motivation for the adverse employment action.” Id. at 700.
“The PHRA is basically the same as the ADA in relevant respects and Pennsylvania courts ... generally interpret the PHRA in accord with its federal counterparts.” Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002). Furthermore, “[t]he elements of a claim under § 504(a) of the Rehabilitation Act are very similar to the elements of a claim under Title I of the Americans with Disabilities Act, 104 Stat. 328, 42 U.S.C. § 12111 et seq.” Donahue v. Consol. Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000).
2. Failure to Accommodate Claim
Defendant first contends it is entitled to summary judgment on Plaintiff's claim that Defendant failed to accommodate Plaintiff's disability. Def.'s Br. (ECF No. 32) at 8-17. “To establish an ADA failure-to-accommodate claim a plaintiff must show: (1) he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have been reasonably accommodated.” Burbach v. Arconic Corp., 2021 WL 4306244, at *7 (W.D. Pa. Sept. 22, 2021).
There does not appear to be any dispute that Plaintiff qualifies as a disabled person within the meaning of the ADA due to his diagnosis of Generalized Anxiety Disorder. In addition, there does not appear to be any dispute that Plaintiff requested accommodations due to this disability. Thus, Plaintiff has met his burden with respect to the first two prongs. See Pl.'s Br. (ECF No. 37) at 4.
“Plaintiff can show that Defendant[] refused to make reasonable accommodations by refusing to provide him with the proposed reasonable accommodation or by failing to engage in the interactive process with Plaintiff after he requested an accommodation although a reasonable accommodation was possible.” Kling v. Univ. of Pittsburgh Med. Ctr., 2021 WL 3667918, at *12 (W.D. Pa. May 7, 2021), report and recommendation adopted, 2021 WL 2882442 (W.D. Pa. July 9, 2021). Both Plaintiff and Defendant focus on the interactive process.
The ADA's regulations state that: “To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] in need of accommodation. This process should identify the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). Similarly, the EEOC's interpretive guidelines provide that: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. Pt. 1630, App. § 1630.9 at 359.Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir. 1999). The Third Circuit has made clear that “both parties have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.” Id. at 312.
An employee's request for reasonable accommodation requires a great deal of communication between the employee and employer ... [B]oth parties bear responsibility for determining what accommodation is necessary ... “[N]either 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.Id. (quoting Bultemeyer, v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996)).
Defendant contends that it initiated and followed through with the required informal, interactive process in good faith to determine whether Plaintiff's disability could be reasonably accommodated. See Def.'s Br. (ECF No. 32) at 9. In addition, Defendant asserts that it was Plaintiff who stopped communicating with Defendant which caused the breakdown in the process. Id. at 10. It is Plaintiff's position that there are genuine issues of material fact both as to whether Defendant's actions constitute a good faith effort and who is to blame for the breakdown in the process. Pl.'s Br. (ECF No. 38) at 4-5.
The undisputed facts reveal that Plaintiff informed Defendant about his having anxiety attacks on June 1, 2018. Def.'s CSF (ECF No. 34) at ¶ 6; Pl.'s CSF (ECF No. 38) at ¶ 6. On June 6, 2018, Plaintiff provided to Defendant a note from Plaintiff's doctor about his Generalized Anxiety Disorder diagnosis, which suggested the accommodation of permitting Plaintiff to work from home. Id. at ¶ 7; Id. at ¶ 7. On June 8, 2018, Defendant asked Cizinsky and Hinckley about whether Plaintiff's position was suitable to be a work-from-home position and whether Plaintiff would be a good candidate for that accommodation. Id. at ¶ 9; Id. at ¶ 9. Cizinsky responded that Plaintiff's position is not a work-from-home position, and Plaintiff is not an ideal candidate for such an accommodation.
On June 19, 2018, Plaintiff informed Cizinsky he would be missing work that day to take care of a sick child. Id. at ¶12; Id. at ¶ 12. On June 20, 2018, Defendant emailed Plaintiff a letter asking for more information from Plaintiff's doctor about Plaintiff's condition and proposed accommodations. Id. at ¶ 13; Id. at ¶ 13. A response was requested by June 30, 2018. Id. at ¶ 14; Id. at ¶ 14.
Specifically, that letter requested three pieces of information from Plaintiff's doctor: 1) “information regarding the expected duration of the condition and the chances of recovery with treatment;” 2) whether any in-office accommodations might be beneficial; and 3) information regarding the frequency and duration of flare-ups of the condition. Id. at ¶ 13; Id. at ¶ 13.
On June 26, 2018, Plaintiff acknowledged this request and asked for a written copy of his job description. Defendant provided that to Plaintiff that day. Later that same day, Plaintiff informed Defendant that he had reached out to his doctor to provide the requested information.He further informed Defendant that he was “capable of performing all essential job functions ... by being able to work from home, work a flexible schedule, and/or maintain a private office wherein [he is] able to isolate [himself] from others to reduce anxiety symptoms.” Email Exchanges (ECF No. 135) at Exhibit 13. Two days later, Defendant informed Plaintiff that he had only eight hours of vacation time remaining and that he could apply for FMLA or short-term disability. Id. Plaintiff did not respond to that email.
Plaintiff admitted he never shared these questions with his doctor. Pl.'s Depo. (ECF No. 38-1) at 179. According to Plaintiff, he did not share this letter with his doctor because it “was another anxiety trigger” and he “felt like they were attacking [him] for [his] disability and that they were questioning [his] honesty.” Id.
On July 13, 2018, Plaintiff was notified that his employment was terminated because he had not communicated with Defendant for the last 15 days. Plaintiff sent an email to Defendant on Sunday, July 15, 2018, informing Defendant that, inter alia, Plaintiff was “working toward finalizing” application FMLA and short-term disability applications. Email from Pl. to Def. (ECF No. 38-1).
Plaintiff testified that he had no intention of completing those applications. Pl.'s Depo (ECF No. 35-1) at Exhibit 2, p. 197.
Here, Defendant contends that Plaintiff bears full responsibility for the breakdown in this interactive process. It is Defendant's position that it was “well within its rights to request that [P]laintiff have his physician provide additional medical information and accommodations recommendations as part of the interactive process.” Def.'s Br. (ECF No. 32) at 10. Defendant argues it is Plaintiff who abandoned the interactive process by failing to provide the requested information in a timely fashion. Id. On the other hand, Plaintiff blames Defendant for the breakdown in the interactive process. It is Plaintiff's position that Defendant “could not come to a coherent agreement about his essential job functions” and never determined if Plaintiff “was able to perform his essential job functions while working from home.” Pl.'s Br. (ECF No. 38) at 5. According to Plaintiff, there is no evidence that Defendant ever engaged in meaningful internal discussions to determine if Plaintiff could be accommodated. Id.
“Generally, the issue of whether a reasonable accommodation exists in a failure-to-accommodate claim in the employment context presents a question of fact.” Kling, 2021 WL 3667918, at *12. “In deciding whether a genuine issue of material fact exists regarding the reasonableness of the requested accommodation, [the court] first examine[s] whether [Plaintiff] has made a facial showing that [his] proposed accommodation is possible[, ] and would have allowed him to perform the essential functions of the job.” Id. (internal citations and quotation marks omitted). “If Plaintiff meets that prima facie showing, the burden shifts to [Defendant] to prove, as an affirmative defense, that the accommodations requested by [Plaintiff] are unreasonable, or would cause an undue hardship on [Defendant].” Id. (internal citations and quotation marks omitted).
Instantly, on June 26, 2018, Plaintiff requested, once again, to work from home. Alternatively, he requested a flexible schedule and/or a private office. In her deposition, Eberwine pointed out that they “just did not know enough” to determine how they could best accommodate Plaintiff. Eberwine's Depo. (ECF No. 35-1) at Exhibit 3. Eberwine testified that Defendant “needed more information, and that information from [Plaintiff's] physician would give [Defendant] the path [Defendant] needed to take.” Id. Plaintiff testified at his deposition that he “felt the questions they were asking were ridiculous for them to make a decision” about whether Plaintiff could work from home or have a private office. Pl.'s Depo. (ECF No. 35-1) at Exhibit 2.
Viewing the facts in the light most favorable to Plaintiff, a reasonable jury could conclude that Plaintiff's failure to provide the requested follow-up information from Plaintiff's doctor caused the breakdown in the process. However, a reasonable jury could also conclude that Defendant's failure to respond to Plaintiff's request for flexible accommodations also caused the breakdown in the process. Thus, the record supports the conclusion that either party caused the breakdown in the interactive process, and therefore it is not possible for the undersigned to “isolate the cause of the breakdown and [] assign responsibility” at this stage of the litigation. Taylor, 184 F.3d at 312. Accordingly, the undersigned respectfully recommends that genuine issues of material fact preclude summary judgment on Plaintiff's failure-to-accommodate claim. See Colwell v. Rite Aid Corp., 602 F.3d 495, 508 (3d Cir. 2010) (holding that summary judgment was not appropriate where “a reasonable jury could [] conclude that either party violated the duty to engage with good faith in the interactive process”).
Defendant further contends that Defendant fulfilled its statutory ADA obligation by offering Plaintiff the ability to apply for a leave of absence pursuant to the FMLA. See Def.'s Br. (ECF No. 32) at 12-13. It is well-settled that a leave of absence “may constitute a reasonable accommodation under the ADA.” Bernhard v. Brown & Brown of Lehigh Valley, Inc., 720 F.Supp.2d 694, 701 (E.D. Pa. 2010). However, the question of whether that is indeed a reasonable accommodation in these circumstances is an issue of fact for a jury to determine. In addition, Defendant argues that Plaintiff's proposed alternatives of a flexible work schedule or a private office were not reasonable. Def.'s Br. (ECF No. 32) at 13-17. Again, these are issues of fact for a jury to determine.
Because PHRA claims are subject to the same determination as ADA claims, the undersigned respectfully recommends denying Defendant's motion for summary judgment with respect to Plaintiff's failure-to-accommodate PHRA claim. See Mascioli v. Arby's Rest. Grp., Inc., 610 F.Supp.2d 419 n. 5 (W.D. Pa. 2009).
3. Retaliation Claim
Defendant also moves for summary judgment with respect to Plaintiff's retaliation claim. See Def.'s Br. (ECF No. 32) at 17-20. To establish a “claim for retaliation, [a plaintiff] must establish a prima facie case by proving that he (1) engaged in a protected activity; (2) his employer took an adverse employment action against him either after or contemporaneously with the protected activity; and (3) a causal connection between the protected activity and the employer's adverse action.” Kling, 2021 WL 3667918, at *8. Once a plaintiff establishes a prima facie case, “the burden shifts to the employer to articulate some legitimate non-discriminatory reason for the adverse employment action. At this stage, the employer's burden is relatively light; [the employer] simply has to introduc[e] evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.” Id. at *10 (internal citations and quotation marks omitted). If Defendant articulates a legitimate non-discriminatory reason, for the adverse employment action, a plaintiff “may defeat summary judgment by identifying evidence from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.” Id. (internal quotation marks omitted).
Instantly, the parties agree that at least for the purposes of summary judgment, Plaintiff engaged in a protected activity by asking for an accommodation pursuant to the ADA. The parties also agree that an adverse employment action, Plaintiff's termination, occurred shortly thereafter, such that it could be causally related for the purposes of establishing a prima facie case. See Def.'s Br. (ECF No. 32) at 17-18. Further, the parties agree that Defendant has offered a legitimate non-discriminatory reason, that Plaintiff failed to contact Defendant for 15 consecutive days, to satisfy its burden of production. Def.'s Br. (ECF No. 32) at 18. Thus, the dispute in this case centers on pretext, whether there is evidence for a fact-finder to disbelieve the employer's reason or believe that invidious discrimination was more likely than not the motivation.
To prove pretext, [a p]laintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons. The employee must not merely show that the employer's proffered reason[s] [were] wrong, but that [they were] so plainly wrong that [they] cannot have been the employer's real reason[s]. Plaintiff may do so by introducing evidence showing that the proffered reasons (1) had no basis in fact; (2) did not motivate the employment action; or (3) are insufficient to motivate discharge.Kling, 2021 WL 3667918, at *10 (internal citations and quotation marks omitted).
Plaintiff contends that Defendant “was well aware that Plaintiff intended to undertake a leave of absence while he believed his proposed accommodations were being investigated by” Defendant. Pl.'s Br. (ECF No. 37) at 19. Thus, Plaintiff argues that “a reasonable factfinder could conclude that [Defendant's] failure to reach out to [its] employee and provide clarity regarding his jeopardized position with the company demonstrates an intent to avoid continued negotiations about his requested accommodation.” Id. at 20. It is Defendant's position that it is not responsible for Plaintiff's “mistaken assumption that he could just stay out indefinitely.” Def.'s Reply (ECF No. 39) at 5.
Here, there is no dispute that between June 26, 2018, and July 12, 2018, Plaintiff did not contact Defendant in any fashion. Nor did Defendant receive any paperwork from Plaintiff indicating he intended to apply for FMLA. While, as discussed supra, either party could have done more in the way of communication, Plaintiff has failed to convince the undersigned that a fact-finder could believe that it was not Plaintiff's absence from work without communication that led to Plaintiff's termination. In other words, Plaintiff has failed to demonstrate that the reason, failure to report to work or communicate, offered by Defendant “(1) had no basis in fact; (2) did not motivate the employment action; or (3) [was] insufficient to motivate discharge.” Kling, 2021 WL 3667918, at *10. Accordingly, Plaintiff has failed to cite evidence to support a finding of pretext for his disability retaliation claim, and it is respectfully recommended that summary judgment be granted in favor of Defendant on this claim.
D. Conclusion
Based on the foregoing, the undersigned respectfully recommends that Defendant's motion for summary judgment be granted in part and denied in part. Specifically, the undersigned recommends that Defendant's motion for summary judgment be DENIED with respect to Plaintiff's failure-to-accommodate claim pursuant to both the ADA and PHRA, and be GRANTED with respect to Plaintiff's retaliation claim.
Accordingly, pursuant to 28 U.S.C. § 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until March 23, 2022, to file objections to this report and recommendation. Unless Ordered otherwise by the District Judge, responses to objections are due April 6, 2022. Failure to file timely objections may constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).