Opinion
Civil Action 20-790
11-17-2022
TIFFANY SCHOMER, Plaintiff, v. WESTMORELAND COUNTY, Defendant.
HONORABLE CATHY BISSOON, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RE: ECF NO. 48
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Tiffany Schomer (“Schomer”) brings claims under the Americans with Disabilities Act (“ADA”) and the Pennsylvania Human Relations Act (“PHRA”). Presently before the Court is the Motion for Summary Judgment of Defendant Westmoreland County (the “County”). ECF No. 48.
For the following reasons, it is respectfully recommended that the Motion for Summary Judgment be granted in part and denied in part.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Schomer brings claims under the ADA and PHRA for failure to accommodate and/or to be free from discrimination based on her disability. ECF No. 1 ¶¶ 34-38. She requests compensatory and punitive damages. Id. at 6.
1. Factual Background
Schomer was employed with the County between January 2012 and March 20, 2019. ECF No. 47 ¶ 1. She suffers from multiple sclerosis (“MS”), which causes her to experience symptoms including fatigue and brain fog. Id. ¶ 2.
a. Clerk position
Schomer began working in the County Sheriff s Office in January 2016. Id. ¶¶ 3-4. She worked as a Clerk until August 2018, during which there were no issues with her work performance. Id.; ECF No. 56 ¶ 1. In this position, she handled personal complaints, did input for sheriffs sales, tax foreclosures, and directed the public to where they needed to go. ECF No. 47 ¶ 10. During this time, the only accommodation that Schomer requested for her disability was a different office chair. ECF No. 47 ¶ 34; ECF No. 51-5.
b. Promotion to Assistant Officer Manager
Schomer was promoted to the position of Assistant Office Manager in the Sheriff s Office in August 2018. ECF No. 47 ¶¶ 3-4. When she was promoted, the Office Manager position and multiple Clerk positions were vacant. Id. ¶ 6.
Then Sheriff Jonathan Held (“Held”) and Amanda Bernard (“Bernard”), Director of Human Resources, knew that Schomer suffered from MS when she was promoted. IcL ¶ 5. Schomer initially believed she could perform the role without accommodation, and she did not request any accommodation for her disability. Id. ¶¶ 11-12.
c. Performance issues
Upon beginning the Assistant Office Manager position, Schomer struggled to perform some of the tasks that she needed to complete. Id. ¶ 14. Schomer initially believed that if she had more time to complete her work or additional training, she could complete the necessary tasks, IcL ¶15.
The County met with Schomer multiple times to discuss concerns over her job performance. The first of these meetings was on October 11,2018. Id. ¶ 16. During this meeting, the County counseled Schomer regarding employees' complaints about her performance, including tasks not being completed on time, concerns about payroll and Schemer's attitude towards others. Id. ¶ 17.
In response, Schomer provided a statement that “[w]hen I took over as Assistant Manager, it was short notice and I didn't receive much training. A lot of things were just attempting to go over on my own. Some things got busier as we went from 6 staff to 3, but I've worked hard to get things caught up.” Id. ¶ 19; ECF No. 51-2. Schomer asked Lieutenant Denise Appleby (“Appleby”) for help with coding on payroll, but she did not mention her disability or request any type of accommodation. ECF No. 47 ¶¶ 21, 24.
The County indicated that Schomer's performance would be reevaluated in 30 days or sooner, and that the County would coordinate payroll and management training for her. Id. ¶ 18. She later received management training, but not payroll training. Id. ¶¶ 22-24.
Schomer had another meeting with the County about her work performance on October 22, 2018. Id. ¶ 25. This meeting arose out of Schomer's failure to provide certain materials to the Controllers' Office, and her failure to notify Held or Appleby that the information was needed but she did not know how to gather it. Id. ¶¶ 26-27. Schomer was reminded that information needs to be timely produced, and that she should ask for help as needed. Id. ¶ 29.
In response, Schomer wrote the following statement: “(w]as told via email about reports, mentioned to Sandy and she told me she was going to look at her notes and we would figure out what reports we needed and how to complete the reports. She took the bank statements and completed August [and] September and said she would show me what she did for October's reports. I have no notes or training on how to do these.” Id. ¶ 30.
In late 2018, the Sheriffs Office hired a new Office Manager, Martina Milcic (“Milcic”). Id. ¶ 35. Schomer told Milcic that she suffered from fatigue and brain fog, which made it difficult for her to comprehend after about a half a day. Id. ¶ 36. She also advised Milcic in late December 2018 and mid-January 2019 that she could not do her job and would need more time or training to timely complete her tasks. Id. ¶ 40. She did not specifically request a meeting with Milcic to discuss her performance issues as they related to her MS. Id. ¶ 38.
This individual is referred to as Martina Milsak in the parties' Joint Concise Statement of Undisputed Material Facts, however, her name is spelled Martina Milcic in the record materials and Plaintiff s Statement of Additional Material Facts. See, e.g., ECF No. 57-3 at 1, ECF No. 57-7 and ECF No. 56 ¶ 3.
On February 4, 2019, the County met with Schomer again to discuss issues with her job performance. Id. ¶ 40. Schomer was counseled about performance concerns and complaints, including untimely checks and bills, money orders and bills being left out in bins, uncashed checks, payroll errors and issues with inputting domestic relations warrants into the relevant software program. Id. The County also referred the complaints to the Sheriff and Human Resources for further review and investigation. Id. ¶ 42.
Schomer submitted a written statement in response, stating that the closeouts for checks were an “oversight on [her] part,” that for domestics she “waited while [she] tried to figure out instead of asking for help,” that for payroll she “went too fast [and] inputted [sic] the wrong code,” and that “[t]here are a few things that only [she] know[s] how to do [and] when [she's] attempted to show others, other more pressing things (i.e., complaints) come [and] those are first priority. Id. ¶ 43.
While she did not include this in her written statement, Schomer testified that she additionally informed them that “brain fog and fatigue from her disability hindered her ability to complete her tasks.” Id. ¶ 45. She also suggested that she would be willing to accept a demotion. Id. ¶ 46.
Schomer indicated that, “if they felt that they needed somebody who could do that position in a more timely manner, or even in a better manner, then [she] would gladly take a demotion. Id. ¶ 49. According to Schomer, this was the second or third time she had offered to return to a Clerk position. Id. ¶ 47; see also ECF No. 57-4 at 52-3, 76-82, 86-89, 128; ECF No. 57-5 at 21, 70-71. The County responded that “they felt [Schomer] was doing fine and that they would make sure that, again, [Schomer] had the training necessary to complete the job.” ECF No. 47 ¶ 50.
Around the time of this meeting, Held discussed with HR and Schomer's other supervisors the possibility of demoting Schomer because he “had concerns that she was overwhelmed,” they “had no [performance] problems with her when she was a clerk, and we had the position open and maybe that would be a better fit for her.” ECF No. 56 ¶ 6; ECF No. 57-1 at 55-58, 68-69. He could not recall if Schomer was present during this meeting. ECF No. 56 ¶ 6.
d. Allegations of political activity
The County received a complaint that, on February 5, 2019, Schomer used her cell phone to access Facebook Messenger during work hours and told a co-worker, “shh, I am doing campaign stuff for Frank [Schiefer],” a candidate for Recorder of Deeds. ECF No. 47 ¶ 53; ECF No. 57-6 at 177. On February 11, 2019, Milcic also reported that Schomer used her County phone to call Staples about a sign for Schiefer's campaign, and that she left work early, without permission, to attend a campaign event for him. ECF No. 47 ¶ 55; ECF No. 51-24. Milcic also reported further issues with Schemer's work performance. ECF No. 51-24.
On February 15, 2019, Bernard and Held met with Schomer about these allegations. ECF No. 51-7 at 1. She was accused of violating the County's Anti-Fraud Policy. ECF No. 47 ¶ 56.
In response, Schomer wrote the following statement: “[e]mailed on cellphone about poster for event. No correspondence was done on County computer. It will not happen again. On February 5th, I worked thru lunch but emailed about it on my cellphone. On February 11th, I called in the morning to check to see if it would be completed. It will not happen again. Again, zero correspondence was done on a county computer. I left at 2, using 2 hours of vacation. I did not receive my sheet back yet, but I was under the impression that it had been approved.” Id. ¶ 57.
At the meeting, it was concluded that Schemer's conduct would be reported to the County Controller, and that she would be suspended pending further investigation. Id. ¶ 56; ECF No. 51 -7. On February 19, 2019, Held issued a letter to Schomer stating that she was suspended indefinitely without pay. ECF No. 47 ¶ 61.
e. March 5, 2019 meeting and termination
County officials again met with Schomer on March 5, 2019 to discuss the County's AntiFraud policy, ongoing work performance issues and the outcome of the investigation into Schemer's political campaigning allegations. This meeting was attended by Schomer, Held, Appleby, Bernard and Milcic. Id. ¶ 63; ECF No. 57-7. During this conference, the County discussed possible termination with Schomer. Id. ¶ 63.
By this time, Schomer no longer felt she could perform her job as Assistant Office Manager. ECF No. 47 ¶ 65. She requested a demotion to a Clerk position in lieu of termination. Id. ¶¶ 64-66; ECF No. 57-5 at 21-22. According to Schomer, she was told that they were “not able to accommodate that,” because she had been given many opportunities to complete her tasks. ECF No. 57-4 at 128. She was told that “they didn't feel there was a path forward.” ECF No. 47 ¶ 66; ECF No. 57-5 at 21.
Schomer was presented with a Separation Agreement and General Release. ECF No. 47 ¶ 68. Schomer initially signed this document to avoid having a termination on her record, but she later rescinded her signature on March 19, 2019. Id. Schomer was then terminated, effective March 20, 2019. Id. ¶ 69; ECF No. 51-16. She did not receive a formal termination letter. ECF No. 56 ¶ 17.
f. EEOC Charge
After her termination, Schomer submitted an EEOC Charge of Discrimination against the County on March 24, 2019 alleging, inter alia, disability discrimination. ECF No. 47 ¶ 70; ECF No. 51-13. In the EEOC Charge, she represented that she was an employee of the County. ECF No. 51-13. Schomer also indicated that she did not believe she could perform her job as Assistant Officer Manager, however, she believed that she could perform a Clerk position. ECF No. 47 ¶ 71.
g. Application for Social Security Disability Insurance Benefits
After her termination, Schomer unsuccessfully looked for secretarial or clerical roles that she believed she could perform, until she applied for Social Security disability insurance (“SSDI”) benefits on April 6, 2020. ECF No. 47 ¶¶ 72-73; ECF No. 51-14. In support of her application, she affirmed that she “became unable to work because of [her] disabling condition on March 4, 2019” and is “still disabled.” ECF No. 51-14 at 4. She also responded “no” to the question of whether she was “now able to work.” Id.
Schomer testified that March 4, 2019 was intended to reflect the date that she believed that she had been terminated. ECF No. 57-5 at 44. On August 9, 2020, she was approved for SSDI benefits beginning September 2019 by letter confirming she became disabled as of March 4, 2019. ECF No. 47 ¶ 83; ECF No. 51-15. She has not attempted to correct this date. ECF No. 47 ¶ 84.
2. Procedural History
Plaintiff filed her Complaint initiating this federal action on May 29, 2020. ECF No. 1. The County filed an Answer, and the parties completed fact discovery. ECF Nos. 10, 14 and 40.
On April 18, 2022, the County filed the instant Motion for Summary Judgment and Brief in Support. ECF Nos. 48 and 49. The parties filed a Joint Concise Statement of Undisputed Material Facts and supporting Appendix. ECF Nos. 47 and 51. The County separately filed a Supplemental Concise Statement of Material Facts. ECF No. 50.
On May 19, 2022, Schomer filed a Response to the Motion for Summary Judgment, a Response to the County's Supplemental Concise Statement of Material Facts, a Concise Statement of Material Facts and supporting Appendix. ECF Nos. 54, 55, 56 and 57.
On June 3,2022, the County filed a Reply in support of the Motion for Summary Judgment and a Reply to Schemer's Concise Statement of Material Facts. ECF Nos. 58 and 59.
The County's Motion for Summary Judgment is now ripe for consideration.
B. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “[t]he 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). An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (“A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof'). Thus, summary judgment is warranted where, “after adequate time for discovery and upon motion ... a 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 of proof at trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. w Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 322; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). “[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Scott v, Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp,, 475 U.S. 574, 586-87 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Military & Veterans Affairs, 487 F.3d 150,152 (3d Cir. 2007); Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129,130 (3d Cir. 2001).
C. DISCUSSION
The ADA expressly prohibits an employer from discriminating against a “qualified individual” with a disability. 42 U.S.C. § 12112. To establish a prima facie case of discrimination under the ADA, the plaintiff must show: “(1) [s]he is a disabled person within the meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) [s]he has suffered an otherwise adverse employment decision as a result of the discrimination.” Taylor v. Phoenixville Sch. Dist, 184 F.3d 296, 306 (3d Cir. 1999). Under the ADA, a “qualified individual” can “perform the essential functions” of the position “with or without reasonable accommodation.” 42 U.S.C. § 12111(8).
Schomer brings claims under both the ADA and PHRA. Because the same analysis applies identically to her PHRA claim, the Court only discusses Schomer's ADA claim. Emmell v. Phoenixville Hosp. Co., 303 F.Supp.3d 314 n. 8 (E.D. Pa. 2018) (citing Taylor v. Phoenixville Sch, Dist., 184 F.3d 296, 306 (3d Cir. 1999)).
“Adverse employment decisions” include refusing to make reasonable accommodations for a plaintiffs disabilities. Colwell v. Rite Aid Corp,, 602 F.3d 495, 504 (3d Cir. 2010). An employer is required to provide a reasonable accommodation to a qualified individual with a disability who is an employee, unless to do so would cause undue hardship. Taylor, 184 F.3d at 311. “The term ‘reasonable accommodation' may include reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).
In this case, Schomer claims that the County discriminated against her in violation of the ADA by failing to make a reasonable accommodation for her disability, which ultimately led to her termination. The County now moves for summary judgment, arguing: (1) it was not Schomer's employer; (2) Schomer was not a “qualified individual” under the ADA; (3) Schomer cannot show the County's conduct was pretext for discrimination under the McDonnell Douglas burden-shifting analysis; (4) Schomer's claims that the County failed to provide a reasonable accommodation and engage in the interactive process fail as a matter of law; and (5) punitive damages are improper.
For the reasons below, the Court should deny the County's Motion for Summary Judgment, except as to Schomer's claim for punitive damages.
1. Employer Status
As a threshold matter, the parties dispute whether the County was Schomer's employer. In her Complaint, Plaintiff alleges that she was employed by the County from January 2012 until the County terminated her employment on March 5, 2019. ECF No. 1 ¶ 7. In its Answer, the County responded:
The averments of Paragraph 7 are admitted to the extent that Plaintiff was employed by the Defendant from January 2012 until the Defendant terminated her employment. The remaining averments of Paragraph 7 are denied. By way of further response, the Defendant terminated Plaintiffs employment effective March 20, 2019.ECF No. 10 ¶ 7 (emphasis added).
In the Joint Statement of Material Facts, the parties also submit that “Ms. Schomer was employed with the County between January 2012 and March 20, 2019.” ECF No. 47 ¶ 1.
Despite these statements to the contrary, the County now argues in support of its Motion for Summary Judgment that it was not, in fact, Schomer's employer. ECF No. 49 at 3. Instead, the County argues that Schomer was employed by the Sheriff s Office, an independent row office with statutory authority to hire and fire its own deputies and clerks. Id. at 3-6 (citing 16 P.S. § 1205 ). The County maintains that it is not bound by its statement that it was Schomer's employer because it never admitted this unequivocally, and it is not true. ECF No. 58 at 2-4.
This statute was repealed effective December 24, 2018. An amended version is now in effect at 16 P.S. §1205-A.
In response, Schomer argues that the County is bound by its prior statement that it was her employer because it was a judicial admission. ECF No. 54 at 6-7. Schomer also argues that the County did not preserve an affirmative defense that it was not her employer. Id. at 7-8. And while Schomer did not have notice and opportunity to conduct discovery on this issue, she argues, the record nevertheless supports a finding that the County was her employer based on evidence regarding its authority and involvement over Schomer's discipline, work-related policies, personnel records and termination. Id. at 9-15.
a. The County's statement that it was Schomer's employer is a judicial admission.
First, the Court considers whether the County's statement that it was Schomer's employer was a judicial admission. “Judicial admissions are formal concessions in the pleadings, or stipulations by the party or its counsel, that are binding upon the party making them.” Parilla v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269,275 (3d Cir. 2004) (quoting Keller v. United States, 58 F.3d 1194,1198 n.8 (7th Cir. 1995)). Judicial admissions are confined to “matters of fact which otherwise would require evidentiary proof,” and a statement of fact must be unequivocal to be a binding judicial admission. Glick v. White Motor Co., 458 F.2d 1287,1291 (3d Cir. 1972). When assertions “are clear and unequivocal statements of fact that would otherwise require evidentiary proof,” the assertions are judicial admissions binding on a party. Mason v. Range Res.-Appalachia LLC, 120 F.Supp.3d 425, 443 (W.D. Pa. 2015).
Upon review, the Court should find that the County's statement in paragraph 7 of its Answer that Schomer was “employed by the [County] from January 2012 until the [County] terminated her employment” is a binding judicial admission. Whether the County was Schomer's employer involves questions of fact, which would otherwise require evidentiary proof. See, e.g., Senne v. Kansas City Royals Baseball Corp., __F.Supp.3d__, 2022 WL 783941 (N.D. Cal. Mar. 15, 2022) (admission that entity employed certain players in answer to complaint was binding judicial admission).
The County also admitted this fact unequivocally in its pleadings. The statement itself is clear, and there is nothing that otherwise contradicts this fact in its Answer. Although the County argues that it “clearly stated” in response to other paragraphs that the Sheriff s Office employed Schomer, none of the paragraphs it refers to explicitly state this. The Court also notes that two entities can be joint employers under the ADA. Eisenhuth v. ACPI Wood Prods., LLC, No. 4:20-cv-02362,2021 WL 3545079, at *3 (M.D. Pa. Aug. 11,2021). Because the County never disputed that it employed Schomer, its admission is unequivocal. Accordingly, the County's statement that it was Schomer's employer is a binding judicial admission.
b. The Court should not disregard the County's judicial admission in the interests of justice.
In the alternative, the County argues that the Court should disregard its judicial admission. “Judicial admissions ‘may be disregarded in the interests of justice.'” Repa v. Napierkowski, No. 1:19-cv-00101, 2022 WL 1430547, at *2 (W.D. Pa. May 5, 2022) (quoting The Doyle, 105 F.2d 113 (3d Cir. 1939)). “‘Exceptional circumstances' warranting the opening of a judicial admission include ‘where the admitted fact is clearly untrue or a party was laboring under a mistake when the admission was made.'” Id. (citing Koger v. Robert Half Int'l, No. 2:05-cv-850, 2007 WL 712225, at *8 (W.D. Pa. Mar. 7, 2007), aff'd 247 Fed.Appx. 349 (3d Cir. 2007); New Amsterdam Casualty Co. v. Waller, 323 F.2d 20, 24 (4th Cir. 1963) (a “court, unquestionably, has the right to relieve a party of his judicial admission if it appears that the admitted fact is clearly untrue and that the party was laboring under a mistake when he made the admission”)).
Upon review, the Court should not disregard the County's admission because there are no “exceptional circumstances.” Although the County argues that its admission of employer status is “clearly untrue,” this is unsupported. In particular, the County points to the Sheriff s exclusive statutory authority to hire and fire its clerks and deputies as evidence that the Sheriff employed Schomer. Even if true, however, it does not preclude a finding that the County also employed her.
In Graves v. Lowery, 117 F.3d 723 (3d Cir. 1997), for example, the United States Court of Appeals for the Third Circuit considered whether clerks employed by the judicial branch of the Commonwealth of Pennsylvania were precluded from pursuing a federal employment discrimination claim against a county. The Third Circuit found that, despite the courts' “inherent right to hire, discharge and supervise” their clerks, it did not “preclude the possibility that a county may share co-employer or joint employer status with the courts.” Id. at 727. Based on allegations that the county “through its funding, actions and policies exercised the requisite control over the daily employment activities of the [c]lerks to incur liability as a co-employer,” the clerks plausibly alleged the county was their co-employer. Id. at 278. As the Third Circuit noted, “the precise contours of an employment relationship can only be established by a careful factual inquiry.” Id. at 729.
In this case, the County does not address this “careful factual inquiry,” as it relates to the record of this case. It relies solely on the inherent authority of sheriffs under Pennsylvania law. As Schomer points out, there is evidence suggesting that the County exercised some level of control over Schemer's employment. For these reasons, the County has not shown its admission was “clearly untrue.”
Further, the Court should find that it would not serve the interests of justice for the County to disregard its admission. The County has been on notice since Schomer filed her EEOC Charge that she understood the County to be her employer. The County then clearly admitted this fact in pleadings. While the County argues it could amend its Answer to correct this statement, this case has been pending for over two years, and it has never sought to do so. Instead, it participated in eighteen months of fact discovery, including 5 depositions and the exchange of over 7,000 pages of documents, mediation and multiple status conferences with the Court, all while allowing Schomer to reasonably rely on its admission of employer status. See, e.g., ECF No. 54 at 8 n. 2; ECF Nos. 13, 21, 42 and 43.
As recently as the parties' filing of their Joint Statement of Material Facts in connection with summary judgment, the County continued to acknowledge that Schomer “was employed with the County.” ECF No. 47 ¶ 1. The County should not be allowed to benefit from such bait-and-switch tactics at this late stage of the litigation. Accordingly, the Court should deny the Motion for Summary Judgment on this basis.
2. Qualified Individual
In support of the Motion for Summary Judgment, the County also argues that Schomer cannot satisfy the second element of a prima facie case of discrimination under the ADA because she was not a “qualified individual” under the ADA. ECF No. 49 at 7.
The County argues that Schomer admitted to the Social Security Administration that she could not work as of March 4, 2019 and supported this with documentation from her medical providers. Id. at 8. Because this admission predates her termination, the County argues, it conflicts with Schomer's claim that she could perform her job despite her disability. Id. at 8-14. The County argues that Schomer is judicially estopped from claiming she was a qualified individual because she cannot reconcile these conflicting statements. Id. at 14-16.
In response, Schomer argues that an employee is not foreclosed from asserting an ADA reasonable accommodation claim simply because she claimed that she could not work for the purpose of qualifying for SSDI benefits. Schomer argues that the apparent discrepancy can be explained, in that a reasonable jury could find that she believed in good faith that she could not work as an Assistant Office Manager (without an accommodation) but could have worked as a Clerk (with an accommodation). Id. at 17. Schomer also argues that the March 4, 2019 date she selected was intended to approximate the date when the County informed her that she would be unable to transfer to a Clerk position (on March 5, 2019), and when she believed that she had been terminated. Id. at 19.
“In order to be ‘disabled' for SSDI purposes, an applicant must be incapable of performing [her] ‘past relevant work,' and [s]he must be found unable to perform any other job existing in significant numbers in the nation's economy.” Detz v. Geiner Indus., Inc., 346 F.3d 109, 119 (3d Cir. 2003) (citing 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1520(e)-(f), 404. 1560(b)-(c) (2002)). On the other hand, in order to be a “qualified individual” under the ADA, a plaintiff must show that she can perform the essential functions of her job, with or without reasonable accommodation. 42 U.S.C. § 1211(8).
Despite the “appearance of conflict” between the language of these two statutes, the United States Supreme Court held in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) that an individual's pursuit and receipt of SSDI benefits does not automatically estop the recipient from subsequently pursuing an ADA claim. Id. at 802. Because the two statutory schemes are distinct in various ways, the Supreme Court found, there are “many situations in which an SSDI claim and an ADA claim can comfortably exist side by side.” Id. at 803. For example, the Supreme Court noted that the ADA defines a “qualified individual” as a disabled person who “can perform the essential functions” of her job “with reasonable accommodation.” Id. (citing 42 U.S.C. § 12111(9)(B)). By contrast, the Social Security Administration does not take the possibility of a “reasonable accommodation” into account, nor is an SSDI applicant required to refer to the possibility of obtaining a reasonable accommodation. Id.
Nonetheless, the Supreme Court recognized in some cases an SSDI claim may genuinely conflict with an ADA claim. Id. at 805. As the Supreme Court explained, “a plaintiff s sworn assertion in an application for disability benefits that she is, for example, ‘unable to work' will appear to negate an essential element of her ADA case-at least if she does not offer a sufficient explanation.” Id. at 806. For that reason, the Supreme Court held, “an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation.” Id.
To survive summary judgment, then, an ADA plaintiff must provide an explanation which is “sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiffs good faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the essential functions' of her job, with or without ‘reasonable accommodation.'” Id. at 807.
Here, Schomer claims she was “unable to work” as of March 4, 2019 in her SSDI application. On March 5, 2019, she met with the County to discuss her termination, and she was informed that the County would not agree to reassign her to a Clerk position. She was asked to sign a Separation and Release Agreement on this date. However, she later rescinded her signature and was formally terminated on March 20, 2019. Schomer was not informed of this termination date by letter. Because Schomer claims to have been a “qualified individual” and “unable to work on March 4, 2019, the Court must consider whether she explains this apparent conflict.
Upon review, the Court should find that Schomer sufficiently explains this apparent discrepancy, such that there is a question of fact as to whether she was a “qualified individual under the ADA. In particular, Schomer reasonably could have believed that she was able to perform the essential functions of her job if she received the accommodation of being demoted to a Clerk position. A reasonable juror could find that Schomer had a good-faith belief in her ability to perform the Clerk role-a job she had previously performed and for which she already had training-but would have difficulty obtaining and successfully training for any job that exists in significant numbers in the nation's economy. Indeed, Schomer testified that she unsuccessfully applied for various clerical roles before she ultimately sought SSDI benefits. Schomer also testified that the March 4, 2019 date she listed was intended to reflect the date on which she believed she had been denied this accommodation and terminated. Therefore, the Court should deny the Motion for Summary Judgment on this basis.
3. Failure to Accommodate
The County also argues in support of its Motion for Summary Judgment that Schomer's claims for failure to provide a reasonable accommodation and to engage in the interactive process fail as a matter of law. ECF No. 49 at 16. To prove that her employer failed to provide reasonable accommodations, Schomer must show: (1) she was disabled, and her employer knew it; (2) she requested an accommodation or assistance; (3) her employer did not make a good-faith effort to assist; and (4) she could have been reasonably accommodated. Capps v. Mondelez Glob., LLC, 847 F.3d 144, 157 (3d Cir. 2017). “Reasonable accommodations” are defined as “[m]edifications or adjustments to the work environment, or to the manner or circumstances under which the position is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii).
In support of this Motion, the County asserts that the evidence does not support this claim. The County argues that Schomer never requested an accommodation, except for a new office chair. ECF No. 40 at 18-19. In any event, the County argues, it did offer accommodations in the form of additional training and time to complete tasks. Id. at 19-20. If Schomer wished to be reassigned, the County argues this was not feasible because there were no open Clerk positions and demoting Schomer could have exposed it to liability. Id.
In response, Schomer argues that she did request an accommodation, referring the Court to testimony that she communicated the difficulty she had performing her job because of her MS, and that she requested more time and training, and then ultimately a reassignment to Clerk. ECF No. 54 at 19-20. She also asserts that the County could have accommodated her reassignment because there were vacant Clerk positions during the relevant time, and she denies that demoting her would have been unlawful under the circumstances. ECF No. 54 at 21-22.
Against this backdrop, the Court considers the elements of Schemer's claim. For the reasons that follow, the Court should find there is sufficient evidence to withstand summary judgment.
(a) The County's knowledge of disability
First, it is undisputed that Schomer was disabled, and the County knew about it. Thus, Schomer satisfies the first element of her claim.
(b) Request for accommodation
As for the second element, the Court next considers whether Schomer asked for an accommodation or assistance. As the United States Court of Appeals for the Third Circuit has described:
The law does not require any formal mechanism or “magic words,” to notify an employer ... that an employee needs an accommodation. Taylor, 184 F.3d at 313. Moreover, as the court noted in Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir.1996), circumstances will sometimes require “[t]he employer ... to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help.” However, either by direct communication or other appropriate means, the employee “must make clear that the [he/she] wants assistance for his or her disability.” Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir. 2000). The employer must have enough information to know of “both the disability and desire for an accommodation,” Taylor, 184 F.3d at 313, or circumstances must at least be sufficient to cause a reasonable employer to make appropriate inquiries about the possible need for an accommodation.
The quantum of information that will be required will, therefore, often depend on what the employer already knows. Taylor, 184 F.3d at 313.Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003).
Upon review, there is sufficient evidence for a reasonable jury to find that Schomer notified the County of her need for an accommodation. Schomer's supervisors knew that she had MS. Schomer also testified that, at various times, she notified Appleby, Milcic and Held of symptoms related to her MS, conveyed that she needed more time to do her job, and she requested to be reassigned to the Clerk position. See, e.g., ECF No. 51-1 at 19-20-23, ECF No. 51-11 at 6-7. These facts, viewed in Schomer's favor, could constitute a request for a reasonable accommodation.
(c) Employer's good-faith effort to assist
Turning to the third element, “‘[o]nce the employer knows of the disability and the employee's desire for accommodations,' the burden shifts to the employer to engage in the accommodation process.” Campo v. Mid- Atl. Packaging Specialties, LLC, 564 F.Supp.3d 362, 389 (E.D. Pa. 2021) (citing Taylor, 184 F.3d at 315; Boice v. Se. Pa. Trans. Auth., No. 05-4772, 2007 WL 2916188, at *13 (E.D. Pa. 2007)). The ADA regulations provide:
[t]o determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.29 C.F.R. § 1630.2(G)(3).
As the Third Circuit has explained, “[t]he interactive process does not dictate that any particular concession must be made by the employer”; it simply requires employers make “a good-faith effort to seek accommodations.” Taylor, 184 F.3d at 317. “Employers can show their good faith in a number of ways, such as taking steps like the following: meet with the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants, show some sign of having considered the employee's request, and offer and discuss available alternatives when the request is too burdensome.” I<1
By contrast, “[a]n employer fails to engage in the interactive process when it knows of the employee's disability and desire for accommodations but nonetheless ‘offer[s] no accommodations or assistance in finding them' and ‘simply [sits] back and continue[s] to document [the employee's] failures.” Campo, 564 F.Supp.3d at 389 (quoting Taylor, 184 F.3d at 315). At bottom, “[t]he interactive process, as its name implies, requires the employer to take some initiative.” Taylor, 184 F.3d at 315.
Viewing the record in the light most favorable to Schomer, as the non-moving party, a reasonable jury could find that the County did not make a good-faith effort to accommodate Schomer's disability. Based on the record, a jury could find that while the County met with Schomer about her poor job performance and documented her failures, it did not proactively engage with Schomer about how her disability affected her performance and the specific accommodations that may be required. While the County refers the Court to management, payroll and diversity training it offered, this does not conclusively establish the County's good-faith efforts to accommodate Schomer's disability. Indeed, the County asserts that Schomer's “requests for training were for her to properly do her job, as opposed to being an accommodation for her disability.” ECF No. 50 ¶ 6.
(d) Availability of reasonable accommodation
As for the fourth element, a jury could also find that a reasonable accommodation in the form of reassignment to the Clerk position was available. Although the County argues that demotion was not legally permissible, as discussed, a reasonable accommodation under the ADA may include reassignment to a vacant position. 42 U.S.C. § 12111 (9)(B).
And while the County refers to two specific dates on which Clerk positions were unavailable, Held testified there were, in fact, open Clerk positions during the relevant time. ECF No. 56 ¶ 6; ECF No. 57-1 at 55-58, 68-69. Thus, a jury could find that the County could have reasonably accommodated Schomer with reassignment to a Clerk position.
For these reasons, a reasonable jury could find that Schomer satisfies the elements of her failure to accommodate claim. Therefore, the County's Motion for Summary Judgment should be denied on this basis.
4. Pretext
The County next argues that Schomer's claim fails because she cannot show her treatment was pretext for discrimination. ECF No. 49 at 20-23. For ADA discrimination claims, the County argues, the Court should apply the McDonnell Douglas burden-shifting analysis. Id., at 20. Under this framework, the County argues that Schomer must offer some evidence to undercut the County's proffered legitimate non-discriminatory reason for terminating her-namely, that she violated the County's policy on political activity. Id. at 20-23. Because she has failed to do so, it argues, her claim fails. Id. at 23.
In response, Schomer argues she does not claim to have been terminated based on discriminatory animus; rather, she is only pursuing a claim for failure to accommodate. ECF No. 54 at 23. Specifically, she claims that she could not perform her job without an accommodation, and then she was terminated for poor performance after the County refused to make a reasonable accommodation her by reassigning her. Id.
As Schomer points out, and as this Court has held, the McDonnell Douglas burden-shifting framework does not apply to claims sounding in failure to accommodate.
Disability discrimination under the ADA encompasses two kinds of claims: disparate treatment and failure to accommodate. These are distinct claims and a different analysis applies to each. Disparate treatment claims are governed by the familiar shifting-burden scheme set out in McDonnell Douglas pursuant to which, after an employee establishes all the elements of a prima facie case, an employer must articulate a legitimate nondiscriminatory reason for its conduct and the employee must present evidence that the proffered reason is pretextual. See Bolden v. Magee Women's Hosp., No. 05-1063,2007 WL 1228479, at *4-6 (E.D. Pa. Apr. 24, 2007); Walton v. Mental Health Assn, of Southeastern Pa., No. 96-5682, 1997 WL 717053, at *10 (E.D. Pa. Nov. 17, 1997); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 263-64 (1st Cir. 1999). Failure to accommodate claims do not require that an employer's action be motivated by a discriminatory animus directed at the disability and, therefore, the McDonnell Douglas test does not apply. Id.; Ferreri v. Mac Motors, Inc., 138 F.Supp.2d 645, 651 n.1 (E.D. Pa. 2001).Sharbaugh v. West Haven Manor, LP, No. 14-1723, 2016 WL 6834613, at *7 (W.D. Pa. Nov. 21, 2016); see also Campo, 564 F.Supp.3d at 387-88; Reyer v. St. Francis Country House, 243 F.Supp.3d 573, 594-95 (E.D. Pa. 2017).
Because Schomer's claims arise out of the County's failure to accommodate her disability, the McDonnell Douglas framework does not apply. As a result, the Motion for Summary Judgment should be denied on this basis.
5. Punitive Damages
Finally, the County argues that it is entitled to summary judgment on Schomer's claim for punitive damages because municipalities are immune from liability for such damages. ECF No. 49 at 23. Schomer does not dispute this point. Accordingly, the County should grant the Motion for Summary Judgment relative to Schomer's request for punitive damages. See Taylor v. Phoenixville Sch. Dist, 113 F.Supp.2d 770, 777 (E.D. Pa. 2000) (punitive damages not available against municipality under ADA or PHRA).
D. CONCLUSION
For the foregoing reasons, the County's Motion for Summary Judgment, ECF No. 48, should be granted in part and denied in part. The Court should grant the Motion for Summary Judgment relative to Schemer's request for punitive damages. The County's Motion for Summary Judgment should be denied in all other respects.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.