Opinion
CIVIL 3:19-CV-1609
09-28-2022
NICOLE GUGGER, Plaintiffs, v. MOUNTAIN CITY NURSING & REHABILITATION CENTER, LLC, t/d/b/a MOUNTAIN CITY NURSING & REHABILITATION CENTER, Defendant.
Mannion, Judge
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Introduction
Pending before the court is a motion for summary judgment filed by the defendant, Mountain City Nursing and Rehabilitation Center, LLC (“Mountain City”). (Doc. 28). The plaintiff, Nicole Gugger, a Registered Nurse and former employee of Mountain City, brought this employment discrimination action against Mountain City pursuant to the Americans with Disabilities Act and the Pennsylvania Human Relations Act, alleging that Mountain City discriminated and retaliated against her because of her disability and ultimately terminated her employment. For its part, Mountain City contends that Gugger did not have a disability, and even if 1 she did, Mountain City had a legitimate, nondiscriminatory and nonretaliatory reason for terminating her employment.
After a review of the record, we conclude that there are no genuine issues of material fact with respect to the plaintiffs claims, and we recommend that summary judgment be granted in favor of Mountain City.
II. Statement of Facts and of the Case
Nicole Gugger was employed by Mountain City as a Registered Nurse and Unit Manager beginning on July 11, 2017. (Doc. 31-1, ¶ 7). As a Unit Manager, Gugger was responsible for overseeing the nurses on her unit, including processes, procedures, and ensuring quality of care. (Id., ¶ 11). Susan Brahler and Michelle Farrell were her direct supervisors. (Id., ¶ 8).
On March 8, 2018, Gugger received a written warning, as she had called off from work on five occasions since she was hired-October 30, 2017; January 15, 2018; January 23, 2018; February 13, 2018; and March 6, 2018. (Id., ¶ 20). One of these absences, as well as a day she requested to leave early, were related to a “family emergency.” (Id., ¶¶ 22-23). For her part, Gugger contends that in January of 2018, she was diagnosed by her primary care provider with Lyme disease, and that while she did not use the words “Lyme disease” when she called off work on January 23, 2018, she described the symptoms she was having, which she believed to be due to her Lyme disease. (Doc. 34, ¶ 21). The defendant claims that Gugger called off less 2 than two hours prior to her shift, which was in violation of Mountain City's policy. (Doc. 31-1, ¶ 24; Doc. 31-5, at 40). On February 12, 2018, Gugger suffered a fall at her doctor's office, and had a doctor's note for her absence on February 13, 2018. (Doc. 34, ¶ 25). On March 6, 2018, Gugger called off, again less than two hours prior to her shift, complaining of “nausea and vomiting.” (Doc. 31-1, ¶ 26).
Gugger stated that in January or February of 2018, when she felt her symptoms were getting more serious, she spoke to Julie Fronza of Human Resources and requested medical leave. (Doc. 34-7, at 24). She claimed that Ms. Fronza informed her that she was not eligible for leave under the Family and Medical Leave Act (“FMLA”) until July, and she also did not qualify for temporary leave. (Id., at 25). For her part, Ms. Fronza stated that Gugger never informed her that she had Lyme disease, nor did she have a discussion with Gugger about her migraine headaches. (Doc. 34-15, at 4). Ms. Fronza testified that she did speak with Gugger at that time, during which Gugger informed her that she was not sure what her medical issues were and that she was seeing doctors, and Ms. Fronza stated that she may have told Gugger to consider taking personal leave at that time. (Id., at 6). Gugger also claims that at or around this time, she told both Ms. Farrell and Ms. Brahler that she had Lyme disease. (Doc. 34-7, at 24). However, both Farrell and Brahler stated that Gugger never told them she had Lyme disease. (Doc. 31-6, at 5; Doc. 34-6, at 17). Brahler stated that she had heard people talking at work that 3 Gugger was being tested for Lyme disease. (Doc. 31-6, at 5). Farrell stated that, at some point, Gugger may have told her about migraine headaches. (Doc. 34-6, at 17).
With respect to the plaintiff's Lyme disease diagnosis, the record is entirely unclear as to when Gugger was actually diagnosed with Lyme disease. On this score, while she contends that she was diagnosed in January or February of 2018, records from Dr. Krupa Daniel on February 15, 2018, indicate that her Lyme testing was negative at that time. (Doc. 34-12, at 5). Indeed, Dr. Daniel's treatment notes state that “Pt has negative Lyme serology. IgG on Western blot is negative . . . Symptoms are unlikely related to Lyme.” (Id.) Further, the plaintiff's journal entry from February 15 indicates that Dr. Daniel “said there's nothing wrong,” and she wrote that she “[did not] trust [her] opinion.” (Doc. 31-5, at 68). This observation by the plaintiff stands in stark contrast to the views of her treating source, Vera Filipovska, CRNP, who referred Gugger to Dr. Daniel and upon receiving the test results, contacted Dr. Daniel but “did not . . . request a change of her diagnosis, as I trusted her expertise in infectious disease medicine.” (Doc. 31-16, at 3).
Moreover, the plaintiff's colleague, Ms. Gavalis, who had a diagnosis of Lyme disease and was being accommodated by Mountain City, stated that Gugger confided in her at this time and told her the doctor said she did not have Lyme disease:
I recall her stating that the doctors said she did not have Lyme disease.
I know that she had been having different symptoms and was seeing4
different physicians but I do recall her stating that the doctor told me I don't have Lyme disease.
However, when we spoke she felt that this was something she did have based on her symptoms but the doctor told her she didn't after doing tests, so that was the last I knew. I didn't know she had a definitive diagnosis.(Doc. 31-20, at 8-9). In fact, the plaintiff's medical records indicate that she may not have been diagnosed with Lyme disease until May of 2019, almost ten months after her termination. (Doc. 34-3, at 134) (noting an onset of Lyme disease on May 24, 2019).
On March 8, 2018, Ms. Brahler and Ms. Farrell met with Gugger and initiated a Corrective Action Plan (“CAP”). (Id., ¶ 27; Doc. 31-5, at 49-51). While this CAP noted Gugger's five absences since she was hired, it also indicated several areas of concern in her job performance, including notifying her supervisors of incidents on the unit in a timely manner; completing orders; completing wound round reports; completing the midnight census; executing physicians' orders; her availability to her staff on the unit; and her lack of preparation for clinical meetings. (Doc. 31-5, at 4951). The CAP stated that: “if the action steps aren't followed or improvement isn't achieved, then additional steps need to be taken. Continued failure will result in a more serious outcome, including termination.” (Doc. 31-5, at 49). At this meeting, Gugger did not discuss the issue of her Lyme disease with either Ms. Brahler or Ms. 5
Farrell, and she did not request medical leave or time off. (Doc. 31-1, ¶ 37; Doc. 314, at 53).
Gugger continued to meet with Brahler and Farrell regarding her CAP. On April 2, 2018, it was noted that Gugger indicated she was still needing help doing admissions, and she was encouraged to seek help from other Unit Managers. (Doc. 31-5, at 51). On May 17, 2018, the notes state that she was not prepared for her morning clinical meeting. (Id.) On May 29, 2018, the CAP indicated that Gugger's restorative assessments were not completed. (Id.) Gugger had also had additional absences in June of 2018. (Doc. 34-7, at 40). Thus, on July 2, 2018, Farrell and Brahler made the decision to demote Gugger from Unit Manager to RN Supervisor. (Doc. 31-5, at 53).
The demotion paperwork, signed by Gugger, indicated that as of July 2, her supervisors were still concerned with her job performance, including orders not being carried out, availability to her staff, wound round reports, and her attendance. (Id.) Specifically, Gugger had failed to transcribe a patient's medication into the system; she had failed to place a palm guard on a patient that resulted in serious injury; her Restorative Nursing Plans (RNPs) continued to be incomplete; her staff reported that she was unapproachable, and they did not feel comfortable taking direction from her; and she was continuing to have problems with the admission process. (Id.) In addition, it was noted that Gugger had seven total call-offs and two 6 “leave earlies” since her date of hire just one year prior. (Id.) Regarding her additional call-offs, the plaintiff had missed three days of work in June 2018. (Doc. 34-7, at 40). She stated that this was due to her migraine headaches. (Id.) With her demotion, Gugger was subject to a ninety-day probationary period as RN Supervisor, and the paperwork noted that “[c]ontinued concerns with job performance in the Supervisor capacity AND/OR a call-off will result in termination within the probationary period noted above. (Doc. 31-5, at 53).
Sometime in July of 2018, Ms. Fronza gave Gugger paperwork to request FMLA leave. (Doc. 34-7, at 25). According to Gugger, she told Ms. Fronza that she had Lyme disease when she asked for the FMLA paperwork. (Id.) However, Ms. Fronza stated that she recalled having a conversation with Gugger, during which Gugger told her that neither she nor her doctors knew what was wrong with her. (Doc. 34-15, at 14). Ultimately, while Gugger received the paperwork in July, she stated that she was waiting until an August appointment with her doctor to fill it out, and that she was terminated before she was able to do so. (Doc. 34-7, at 25).
On August 13, 2018, Gugger called off, again less than two hours prior to her scheduled shift. (Doc. 31-1, ¶ 66). Gugger stated that she went to the emergency room because of vision changes, nausea, vomiting, and severe pain. (Doc. 34-7, at 45). She further stated that before she got a chance to give Mountain City her medical paperwork related to that visit, she was told by Ms. Fronza that she was suspended. 7 (Id., at 46). On August 17, 2018, Gugger showed up at Mountain City and was handed paperwork which terminated her employment. (Id.) The paperwork indicated that she called off during her ninety-day probationary period, and that it was a late call-off resulting in short notice for her replacement. (Doc. 31-5, at 57). Gugger stated that neither Ms. Fronza nor Ms. Brahler would accept the doctor's note she had from the August 13 emergency room visit. (Doc. 34-7, at 46-47). The record contains a doctor's note dated August 13 from Lehigh Valley Hospital, but this note does not explain what Gugger was treated for. (Doc. 34-9). Ultimately, Gugger's employment with Mountain City ended on August 17, 2018. (Doc. 31-5, at 57).
Thereafter, Gugger filed this action against Mountain City on September 18, 2019. (Doc. 1). In her complaint, Gugger asserts claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 955(a), (d). On this score, Gugger claims that her demotion from Unit Manager to RN Supervisor, and her ultimate termination on August 17, 2018, was because of her disability, or alternatively, was retaliation for her requesting an accommodation from Mountain City. She also asserts that Mountain City failed to accommodate her disability.
Mountain City filed the instant motion for summary judgment on June 4, 2021. (Doc. 28). In its motion, Mountain City first contends that Gugger did not have 8 a disability under the ADA because she did not have Lyme disease at the time of the events in the complaint. Moreover, Mountain City asserts that even if Gugger could make a showing of disability discrimination or retaliation, it had a legitimate nondiscriminatory and nonretaliatory reason for terminating her employment.
This motion is fully briefed and is ripe for resolution. (Docs. 31, 34, 35, 36). For the reasons that follow, we conclude that there are no genuine issues of material fact with respect to the plaintiff's discrimination and retaliation claims. Accordingly, we will recommend that the defendant's motion for summary judgment be granted.
III. Discussion
A. Motion for Summary Judgment - Standard of Review
The defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment 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). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of 9 summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “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 at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the 10 Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)). 11
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[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.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 12 quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
B. The Defendant's Motion for Summary Judgment Should be Granted.
In the instant case, the defendant moves for summary judgment contending that Gugger has not made a prima facie showing of disability discrimination or retaliation. At the outset, Mountain City avers that Gugger was not actually diagnosed with Lyme disease and thus was not disabled, and further, that she did not tell her supervisors that she allegedly suffered from Lyme disease and needed an accommodation. Moreover, Mountain City asserts that it had a legitimate, nondiscriminatory and nonretaliatory reason for demoting and ultimately terminating the plaintiff's employment. After consideration, we agree, and we recommend that Mountain City's motion for summary judgment be granted.
Because “our analysis of an ADA claim applies equally to a PHRA claim,” Taylor v. Phoenixville School Dist., 184 F.3d 296, 306 (3d Cir. 1999), we will analyze Gugger's ADA and PHRA claims together. See also Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 564 (3d Cir. 2002) (treating ADA and PHRA retaliation claims the same).
The purpose of the ADA is to “prevent employment discrimination of qualified individuals on account of their disability.” Koller v. Riley Riper Hollin & Colagreco, 850 F.Supp.2d 502, 512 (E.D. Pa. 2012) (citing 42 U.S.C. § 12112(a)). The Act requires employers to make “reasonable accommodations to the known 13 physical and mental limitations of an otherwise qualified individual with a disability, unless the employer demonstrates that such accommodations would impose an undue hardship in the operation of their business.” Id. (quoting Fleck v. WILMAC, Corp., 2011 WL 1899198, at *4 (E.D. Pa. May 19, 2011) (internal quotations omitted).
In order to make out a prima facie claim for workplace discrimination under the ADA, a plaintiff must demonstrate that she is (1) disabled within the meaning of the ADA, (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer, and (3) has suffered an adverse employment decision as a result of the discrimination. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010); see also Stadtmiller v. UPMC Health Plan, Inc., 491 Fed.Appx. 334, 336 (3d Cir. 2012); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998). A disability can take the form of a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. 42 U.S.C. § 12102(1).
If the plaintiff makes a prima facie showing under this three-part standard, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. See Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000) (noting that the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 14 411 U.S. 792 (1973), applies to ADA disparate treatment and retaliation claims). If a legitimate, nondiscriminatory reason is given, then the plaintiff must present evidence to demonstrate that the defendant's reasons were pretext for its unlawful action. Id. The plaintiff may meet this burden by identifying evidence that allows a factfinder either to disbelieve the employer's articulated legitimate justification, or to conclude that an invidious discriminatory reason was more likely than not a “but for” cause of the employment action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). This “but for” standard of causation sets an exacting benchmark for these claims.
In the instant case, Gugger's disability discrimination claim fails on two scores. First, the record is entirely unclear as to whether Gugger had a diagnosis of Lyme disease at the time she was demoted and ultimately terminated. While she contends that she was diagnosed on February 12, 2018, records from Dr. Daniel on February 15, 2018, indicate that her Lyme testing was negative at that time. Indeed, as we have noted, Dr. Daniel's treatment notes from this time state that “Pt has negative Lyme serology. IgG on Western blot is negative . . . Symptoms are unlikely related to Lyme.” (Doc. 34-12, at 5). Further, the plaintiff's journal entry from February 15 indicates that Dr. Daniel “said there's nothing wrong,” and she wrote that she “[did not] trust [her] opinion.” (Doc. 31-5, at 68). However, the plaintiff's treating source, Vera Filipovska, CRNP, who referred Gugger to Dr. Daniel and 15 upon receiving the test results, contacted Dr. Daniel but “did not . . . request a change of her diagnosis, as I trusted her expertise in infectious disease medicine.” (Doc. 3116, at 3). Moreover, the plaintiff's colleague, Ms. Gavalis, who had a diagnosis of Lyme disease and was being accommodated by Mountain City, testified that Gugger confided in her and told her the doctor said she did not have Lyme disease. In fact, the plaintiff's medical records indicate that she may not have been diagnosed with Lyme disease until May of 2019, almost ten months after her termination. (Doc. 343, at 134) (noting an onset of Lyme disease on May 24, 2019).
However, even if Ms. Gugger could show that she was disabled under the ADA, she has not demonstrated a causal connection between her disability and the adverse employment actions taken against her. While Gugger contends that part of the reason for her demotion and termination were her absences from work, and that these absences were allegedly related to her Lyme disease, the record belies this assertion. At the outset, some of Gugger's call-offs and absences related to her demotion appear to be absences for non-medical family-related matters. (Docs. 3111, 31-12). In addition, there is no indication that the absences related to her own health were related to her alleged Lyme disease, or that she informed anyone at work that she was absent because of Lyme disease. (Doc. 31-5, at 45, 47). Although 16 Gugger contends that she informed Ms. Fronza, Ms. Farrell, and Ms. Brahler that she had Lyme disease, these individuals stated that she never told them she had Lyme disease and Gugger had not been diagnosed with this condition at the time of her employment. Thus, Gugger cannot establish that she was demoted and terminated because of her disability because she has not shown that she was disabled, or that her employer knew of her alleged disability. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir. 2002) (finding no ADA discrimination where employer did not know of employee's disability); Taylor v. Phoenixville School Dist., 184 F.3d 296, 313 (3d Cir. 1999).
Gugger stated at her deposition that she told Ms. Brahler she was calling off sick because of her “symptoms,” including nausea, vomiting, and migraine pain. (Doc. 34-7, at 32).
However, even if Gugger could establish a prima facie case showing she was discriminated against because of her disability, Mountain City has set forth a nondiscriminatory reason for her demotion and eventual termination-her poor work performance. On this score, while attendance was a factor in Gugger's initial demotion, the notice from her supervisors that she was being demoted from Unit Manager to RN Supervisor indicated a host of job performance issues, such as orders not being carried out per policy/procedure; being unapproachable to the RNs she supervised; and submitting untimely or incomplete reports. Indeed, Gugger admitted that she was put on a CAP on March 8, 2018, which noted deficiencies not only in her attendance, but also the completion of orders, the completion of wound round reports, her availability to her staff she supervised, and her preparation for clinical 17 meetings. After the CAP was initiated, Gugger continued to have performance issues, such as needing help doing admissions, being prepared for clinical meetings, and completing restorative assessments.
Gugger was ultimately demoted on July 2, 2018 from Unit Manager to RN Supervisor. This demotion paperwork, which was signed by the plaintiff, indicated that she would be on a 90-day probationary period during which “[c]ontinued concerns with job performance in the Supervisor capacity AND/OR a call-off will result in termination within the probationary period noted above.” (Doc. 31-5, at 53) (emphasis added). About one month later, on August 13, 2018, Gugger called off less than two hours prior to her shift in violation of policy, and it was determined that she would be terminated. (Id., at 57). Accordingly, the defendant has proffered a legitimate, nondiscriminatory reason for terminating Gugger.
With the burden shifting back to the plaintiff at this point in the analysis, we conclude that the plaintiff cannot show that Mountain City's reason for her demotion and termination was a pretext for discrimination. Rather, there is ample evidence to show that Gugger was terminated not because of a disability, but because of her poor work performance. Indeed, in the July 2 letter informing her of her demotion, Gugger's supervisors noted that she had failed to transcribe a patient's medication into the system; she had failed to place a palm guard on a patient that resulted in serious injury; her Restorative Nursing Plans (RNPs) continued to be incomplete; 18 her staff reported that she was unapproachable, and they did not feel comfortable taking direction from her; and she was continuing to have problems with the admission process. Thus, the record demonstrates that this progressive discipline, coupled with the final call-off in violation of company policy, resulted in Gugger's ultimate termination. Accordingly, we conclude that no reasonable factfinder could find for the plaintiff with respect to her disability discrimination claim, and summary judgment should be granted in favor of the defendant.
Nor can Gugger show that Mountain City failed to accommodate her disability. On this score, to state a claim for failure to accommodate under the ADA, a plaintiff must demonstrate 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. Moore v. CVS Rx Servs., Inc., 142 F.Supp.3d 321, 335 (M.D. Pa. 2015).
As we have explained with respect to Gugger's disability claim, Gugger has not demonstrated that her employer knew about her disability, or that it failed to accommodate her. Rather, Gugger's supervisors and the HR representative stated that Gugger never told them she had Lyme disease. Moreover, while Ms. Fronza recalled Gugger talking to her about unknown medical issues, Ms. Fronza suggested 19 that she take personal leave, as she was ineligible for FMLA or temporary leave at that time. In addition, Ms. Fronza did, in fact, give Gugger FMLA paperwork in July when she became eligible, but Gugger did not fill out the paperwork. While Gugger stated that she was waiting for an appointment she had in August to get the paperwork filled out, she conceded that she could have had CRNP Filipovska fill out her paperwork and have a physician sign it at that time. (Doc. 34-7, at 25-26). In fact, she stated that it was CRNP Filipovska that ultimately did fill out the paperwork for her. (Id., at 26).
On this score, we cannot conclude that Mountain City failed to accommodate Gugger's alleged disability. Indeed, Mountain City's duty under the ADA was to engage in a process in good faith to accommodate Gugger. Here, Gugger asked Ms. Fronza about medical leave, and Ms. Fronza suggested the option of personal leave because Gugger did not qualify for FMLA or for any other kind of temporary medical leave. When she became eligible for FMLA leave, Ms. Fronza gave Gugger the paperwork to fill out. The fact that Gugger waited over a month to have the paperwork filled out does not negate Mountain City's good faith in giving her the paperwork when she requested it. Moreover, Gugger admitted that she did not discuss her Lyme disease or migraines with Ms. Farrell or Ms. Brahler during the meetings about her work performance. Accordingly, we cannot conclude that 20 Mountain City failed to accommodate Gugger's alleged disability, and this claim fails as a matter of law.
2. ADA Retaliation
The ADA also prohibits employers from retaliating against employees who oppose an act or practice made unlawful by the ADA or because the employee has made a charge under the ADA. 42 U.S.C. § 12203(a); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003) (“it is unlawful for an employer to retaliate against an employee based upon the employee's opposition to anything that is unlawful under the ADA.”). Although requesting a reasonable accommodation does not appear to “fit[ ] within the literal language of the statute,” Soileua v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997), the Court of Appeals has held that making a good-faith request for an accommodation is protected activity for purposes of the ADA's anti-retaliation provision. Shellenberger, 318 F.3d at 191.
In order to make out a prima facie case of illegal retaliation under the ADA, 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 relationship between the protected activity and the adverse action. Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 759 (3d Cir. 2004); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002). The same McDonnell Douglas burden-shifting framework described above with respect 21 to ADA discrimination claims also applies to ADA retaliation claims. In all cases involving retaliation, a plaintiff must prove that retaliatory animus played a role in the employer's decision-making process and that it had a determinative effect on the outcome of the process. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997). That burden always remains with the plaintiff. Id.
The Third Circuit has summarized the showing that a defendant must make in order to obtain summary judgment on a claim of ADA retaliation:
[T]he employer must show that the trier of fact could not conclude, as a matter of law, (1) that retaliatory animus played a role in the decisionmaking process and (2) that it had a determinative effect on the outcome of that process. This may be accomplished by establishing the plaintiff's inability to raise a genuine issue of material fact as to either:
(1) one or more elements of the plaintiff's prima facie case or, (2) if the employer offers a legitimate non-retaliatory reason for the adverse employment action, whether the employer's proffered explanation was a pretext for retaliation.Id.
In the instant case, Gugger contends that she was demoted and eventually terminated because she requested a reasonable accommodation for her disability. However, Gugger's claim is flawed in several respects. First, the records shows that the persons primarily responsible for her demotion and termination were Ms. Brahler and Ms. Farrell. Yet, Gugger concedes that she only spoke with Ms. Fronza regarding the possibility of medical leave as an accommodation. Indeed, Ms. Brahler and Ms. Farrell stated that Gugger never spoke to them about requesting medical 22 leave or time off. Thus, Gugger cannot establish that the persons who took adverse actions against her did so because of her protected activity because she has not established that they knew of her request for an accommodation.
However, and more significantly, even if Gugger could establish a prima facie case of retaliation, she has not provided evidence to establish that Mountain City's proffered reason for her demotion and termination-her consistently poor work performance-was pretext for retaliation. On this score, Gugger was placed on the CAP in March of 2018, and the CAP listed several areas of concern with her job performance aside from her five absences that she asserts were based on her disability. Her demotion in July explained that she had not improved in these areas of concern since March. Moreover, this paperwork clearly and explicitly explained to Gugger that a call off during her probationary period would result in termination. She was then terminated after calling off work less than two hours before her shift during this probationary period.
Here, Gugger has not set forth evidence to show that these adverse employment actions were pretextual. There is no evidence in the record showing that Mountain City took these adverse actions because she had requested medical leave. Rather, the evidence demonstrates that Mountain City had issues with Gugger's work performance, which did not improve from March to July, resulting in her demotion, and that Gugger violated the call-off policy during her probationary 23 period, which resulted in her termination. Accordingly, we conclude that no reasonable factfinder could find for the plaintiff on her retaliation claims, and summary judgment should be granted in favor of Mountain City.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED that the defendant's motion for summary judgment. (Doc. 28), be GRANTED.
The parties are hereby placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations, or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions. 24