MEMORANDUM
Plaintiff, Shelly Mills, brings this action against Temple University (“Temple”), alleging claims of discrimination and retaliation in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq., violations of the Family and Medical Leave Act (the “FMLA”), 29 U.S.C. §§ 2601 et seq., and violations of the due-process clause of the Fourteenth Amendment to the United States Constitution. Mills, a secretary, suffered a back injury at work that interfered with her ability to complete tasks involving lifting and filing. Mills claims that Temple discriminated against her in violation of the ADA by refusing to accommodate her disability and by instead requiring her to take unpaid FMLA leave. She also alleges that Temple retaliated against her for requesting a disability accommodation by placing her on unpaid leave. Although Mills had previously been granted intermittent FMLA leave to attend doctors’ appointments for her back injury, Temple requested an additional healthcare certification, which Mills claims constitutes unlawful interference under the FMLA. Currently before me is Temple’s motion for summary judgment under Federal Rule of Civil Procedure 56. For the reasons set forth below, I will grant in part and deny in part Temple’s motion.
Mills began working for Temple University Hospital in 1998 as a patient interviewer. (Def.’s Statement of Undisputed Material Facts in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Facts”) ¶ 1; PL’s Resp. to Def.’s Statement of Undisputed Material Facts and Counterstatement of Facts (“PL’s Facts”) ¶ 93.)
Mills’s employment was relatively uneventful—she received positive job reviews and worked well with her co-workers— until July 23, 2008. (Def.’s Facts ¶¶ 8-9; PL’s Facts ¶ 97.) While typing at her desk that day, Mills was struck in the back by a co-worker and flung forward.
Mills was initially treated by Dr. Evelyn Balogun in Temple’s Occupational Health Unit. (Def.’s Facts ¶ 17; PL’s Facts ¶ 101.) Dr. Balogun examined Mills and ran several tests including an X-ray and a bone scan. (Def.’s Facts ¶ 17; PL’s Facts ¶¶ 17.) Although Dr. Balogun was unable to diagnose Mills during her initial visit she gave her a medicated topical cream for pain and continued to see her approximately once a week until December 2008. (Def.’s Facts ¶ 18; PL’s Facts ¶ 101.) After each appointment, Dr. Balogun released Mills to return to work without imposing any restrictions on her activities. (Def.’s Facts ¶ 19; PL’s Facts ¶ 19.) Ultimately, Dr. Balogun referred Mills to Dr. Ray Moyer, an orthopedist, before releasing her from workers’ compensation medical care altogether. (Def.’s Facts at 3 n. 3; PL’s Facts ¶ 18.)
Dr. Moyer prescribed Naprosyn
During this time when Mills was being treated by various physicians, she continued to work without any doctor-imposed, work-related restrictions. (Def.’s Facts ¶ 19; PL’s Facts ¶ 19.) Nevertheless, Mills experienced pain in her back while working and had difficulty lifting and filing patient charts. (PL’s Facts ¶¶ 19, 106.) Mills’s supervisor, Anthony Morlino, the senior administrator for the Cardiology Department, was aware that Mills was in pain, as Mills discussed the matter with him on four or five separate occasions between July 2008 and August 2009. (Id. ¶¶ 89, 107.) And between early 2009 and mid-2009, Mills asked Morlino for assistance with filing on several occasions. (Id. ¶ 108.) In reality, student interns and permanent Temple staff took over filing for Mills toward the end of 2008, (id. ¶¶ 19, 106), a fact that Mills shared with Maureen Murphy, her direct supervisor (id. ¶ 109).
Outside of work, Mills continued to engage in daily activities such as driving, caring for her herself and her daughter, and shopping. (Resp. Ex. A, Dep. of Shelly Mills (March 16, 2011) (“Mills Dep.”) at 67:13-16; 70:18-24.) However, Mills struggled with these daily activities, which she found exhausting. (Id. at 67:13-24.) Mills enrolled in a ballet class in the fall of 2008, but found that she could no longer exercise to the extent she had previously been accustomed. (Id. at 69:9-24; 70:6-15.)
After being released from workers’ compensation medical care in December 2008, Mills contacted the Human Resources Department about how to pursue a workers’ compensation claim. (Def.’s Facts ¶ 22; PL’s Facts ¶22.) Ultimately, her claim was unsuccessful. (Def.’s Facts at 4 n. 4.) Because Mills was using sick time in order to attend her doctors’ appointments, Morlino suggested that she apply for FMLA leave to protect these periodic absences. (Def.’s Facts ¶ 23; PL’s Facts ¶ 23.) Mills contacted Thomas Johnston, the director of workers’ compensation and absence management at Temple, regarding the availability of and process of applying for FMLA leave. (Def.’s Facts ¶ 24; PL’s Facts ¶ 24.) Johnston provided Mills with information regarding her eligibility for intermittent FMLA leave and did not discourage her from taking FMLA leave. (Def.’s Facts ¶ 26; PL’s Facts ¶ 26.)
At Temple, when an employee believes that he or she is eligible for FMLA leave, he or she contacts the Benefits Department. (PL’s Facts ¶ 117.) Upon receiving a request for information pertaining to the FMLA, the Benefits Department provides the employee with a “leave request” form, a “release of medical information” form, and a healthcare provider certification (the “Certification”). (PL’s Facts ¶¶ 120-21.) After the completed forms have been returned, Johnston reviews them to ensure that each has been properly filled out. (Resp. Ex. K, Dep. of Thomas F. Johnston (April 14, 2011) (“Johnston Dep.”) at 35:10-18.)
Mills received the FMLA paperwork in early 2009 and filed her first application
After being discharged from Dr. Michael’s care, Mills began treating with Dr. Sanjay Gupta, a pain-management specialist, around April 2009. (Def.’s Facts ¶ 37; PL’s Facts ¶ 37.) On April 16, 2009, Dr. Gupta noted that Mills had disc “desiccation with disc bulging eccentric at C2-3 and to [the] right at C5-6.” (Resp. Ex. F at 1.) Dr. Gupta treated Mills for approximately six months, and she received bimonthly epidural injections for her back pain. (Def.’s Facts ¶ 37; PL’s Facts ¶ 37.)
Mills applied a second time for intermittent FMLA leave in May 2009. (Resp. Ex. B at 1.) Dr. Gupta completed the Certification for her application, in which he noted that Mills had a thoracic MRI that was positive for disc degeneration and a cervical MRI that was positive for disc degeneration and bulging. (Id. at 4.) He further described Mills as suffering from Kyphosis.
Although Mills’s second application for intermittent FMLA leave was approved, the parties offer different accounts as to what occurred between Mills’s filing and Temple’s approval. (Def.’s Facts ¶ 39; PL’s Facts ¶ 39.) According to Johnston, when he read the Certification and Dr. Gupta’s description of Mills’s difficulty filing, he asked Susan Latorre, an employee in his office, to clarify the nature of the restrictions. (Johnston Dep. at 81:9-24.) Evidently, Johnston expected Latorre to write a letter to Mills or Dr. Gupta asking for clarification—did Mills have difficulty filing for only a few days immediately following an epidural injection, in which case she could use FMLA protected leave, or was this a work-related restriction that applied beyond a brief recovery period following each injection? (Id. at 81:9-82:13.) Johnston claims that Dr. Gupta told Latorre over the telephone that the restrictions “are only after she gets a shot.” (Id. at 82:24-83:2.) Dr. Gupta, however, maintains that he never had such a conversation with Johnston or Latorre, and that Mills was actually restricted from filing before, during, and after her injections. (Resp. Ex. R at 1.) In any event, Mills was informed by letter dated June 3, 2009, that she had been approved “for intermittent
In June 2009, the student intern who had been helping Mills with her filing left for the summer and the unattended filing began to pile up. (Def.’s Facts ¶ 44; Pl.’s Facts ¶44.) On June 23, 2009, Murphy, Mills’s supervisor, circulated an email asking several members of the staff, including Mills, to assist with the filing. (Def.’s Facts ¶ 45; PL’s Facts ¶¶45, 137.) Mills responded the next day by email: “I am not able to handle filing at this time; By doing so could further injure [m]y back. I have been organizing the loose files to prepare them to be filed. I am always happy to assist in the growth and development of the department. If you need further documentation please inform me.” (Resp. Ex. C at 1.) Murphy informed Mills that she would need documentation if she was unable to file. (Def.’s Facts ¶ 47; PL’s Facts ¶ 139.) Mills inquired whether a copy of the FMLA certification would suffice, but Murphy asked for a letter from her doctor instead. (PL’s Facts ¶ 139.) On July 2, 2009, Mills gave Murphy a letter from Dr. Gupta stating, “She has disc degeneration with radiating cervicothoracic. She is getting interventional spine injection treatment for her condition. She can work restrictive duty with no bending, lifting, filing, pushing or pulling and weight bearing activity.”
On July 7, 2009, Murphy forwarded Dr. Gupta’s letter to Morlino. (Def.’s Facts ¶ 51; PL’s Facts ¶ 142.) Morlino immediately contacted Johnston to discuss how the matter should be handled. (Def.’s Facts ¶ 52; PL’s Facts ¶ 143.) Johnston inquired whether there was any way they could help Mills file, or if there were any student interns available to help. (Johnston Dep. at 121:11-23.) Morlino responded that filing was an essential function of Mills’s job and that she had to do it. (Id.) At the conclusion of the five- to fifteen-minute conversation, Johnston told Morlino that they should send Mills home and offer her continuous FMLA leave. (Id. at 121:17-23; 139:10-140:1.) Neither consulted Mills, Dr. Gupta, or Temple’s Office of Labor and Employment before deciding to send Mills home. (Pl.’s Facts ¶¶ 147-51.)
Later that same day, Morlino sent Mills an email explaining that he had received the letter from her doctor concerning her work restrictions and “[therefore we will be unable to continue your services in your position. You are of course eligible for FMLA [leave]---- Should you produce a letter indicating you may return to full, unrestricted duty, we will consider your return to the position.” (Resp. Ex. T at 1.) Upon receiving the email, Mills called Morlino to discuss the matter. (PL’s Facts ¶ 153.) Morlino did not return her phone call that day, and Mills finished her regular shift. (Id. ¶ 154.) Mills left the next day for a week-long vacation that she had previously planned. (Def.’s Facts ¶ 55; PL’s Facts ¶ 155.)
The morning after her vacation (approximately July 15 or July 16), when Mills had been scheduled to return to work, she called Murphy to discuss how to proceed and Murphy referred her to human resources. (Def.’s Facts ¶ 56; Pl.’s Facts ¶¶ 56, 156.) Mills visited human resources in person and was informed that she could not return to work and was provided with
Mills never completed the application for continuous leave. (Def.’s Facts ¶ 64; PL’s Facts ¶ 64.) And after being sent home, she did not abide by Temple’s call-in procedure for absences. (Def.’s Facts ¶ 65; PL’s Facts ¶ 65.) Temple contacted Mills to remind her of the deadline for submitting her paperwork and granted her extensions of that deadline on more than one occasion. (Def.’s Facts ¶¶ 63, 66; PL’s Facts ¶¶ 63, 66.) When Temple did not receive her paperwork by August 18, 2009, it sent her a letter terminating her employment for being absent without authorization. (Def.’s Facts ¶ 68; PL’s Facts ¶ 68.)
Since her termination, Mills has not found other employment, although she has applied for several positions. (Def.’s Facts ¶ 76; PL’s Facts ¶ 76.) Mills has pursued a certification in medical billing and coding, which requires her to take two buses and wheel her eight- to ten-pound backpack to class. (Mills Dep. at 100:5-13.) She lost her health insurance following her dismissal and therefore stopped seeking medical care for her condition in December 2009. (Id. at 169:5-172:1.) Today, Mills experiences minimal pain that she treats with Motrin or a prescription muscle relaxer. (Id. at 170:7-20.)
Mills filed this action against Temple on August 25, 2010, alleging discrimination and retaliation in violation of the ADA (counts I and II, respectively), interference with her rights under the FMLA (count III), and due process violations (count IV). After discovery, Temple filed this motion for summary judgment.
II. Standard of Review
A motion for summary judgment will be granted only “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). “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Ideal Dairy Farms, Inc. v. John Labatt, Ltd.,
The moving party bears the initial burden of showing that there is no genuine issue of material fact and that it is entitled to relief. See Celotex Corp. v. Catrett,
When a court evaluates a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson,
III. Discussion
Temple seeks summary judgment in its favor on all four counts of the complaint. Temple argues that summary judgment is appropriate on the claim of discrimination in violation of the ADA (count I) because Mills is not disabled within the meaning of the ADA, or alternatively, because she was reasonably accommodated. As to count II, the ADA retaliation claim, Temple contends that Mills’s claim fails not only because she is unable to establish a prima facie case of retaliation, but also because she is unable to adduce any evidence to suggest that Temple’s legitimate reason for placing Mills on leave was pretextual. Temple seeks summary judgment on Mills’s claim that Temple violated her rights under the FMLA (count III) on the ground that Temple did not interfere with, restrain, or deny Mills’s exercise of FMLA rights. Finally, Temple seeks summary judgment in its favor on count IV, the due-process claim.
I will deny Temple’s motion with respect to counts I, II, and III because genuine disputes as to material facts make summary judgment inappropriate. Because Mills does not object to summary judgment, with respect to count IV, I will grant Temple’s motion as to that claim.
A. ADA Failure to Accommodate (Count I)
The ADA “prohibits certain employers from discriminating against individuals on the basis of their disabilities.” Sutton v. United Air Lines, Inc.,
To establish a prima facie case of discrimination under the ADA, Mills must show that (1) she has a disability within the meaning of the ADA; (2) she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by her employer; and (3) she has suffered an adverse employment decision as a result of discrimination. Williams v. Phila. Hous. Auth. Police Dep’t,
1. Does Mills Have a Disability?
A plaintiff such as Mills can establish that she has a disability by demonstrating that she has “a physical or mental impairment that substantially limits [a] major life activity],” 42 U.S.C. § 12102(2)(A), has “a record of such an impairment,” id. § 12102(2)(B), or is “regarded as having such an impairment,” id. § 12102(2)(C). The parties do not dispute that Mills’s back injury constitutes an impairment under the ADA; the issue here is whether Mills’s condition substantially limits a major life activity. To analyze a claim under the first subsection of the definition of disability, a court must first identify the specific life activities that the plaintiff claims are affected and determine whether those activities are “major life activities” under the ADA, and then must evaluate whether the plaintiffs impairment substantially limits those major life activities. See Taylor v. Phoenixville Sch. Dist.,
The ADA Amendments Act of 2008 (“ADAAA”), Pub.L. 110-325, 122 Stat. 3553 (2008), became effective on January 1, 2009, and applies to this case because Mills was removed from her position on July 7, 2009. Congress amended the ADA to broaden its scope by expanding the definition of disability, which had been narrowed by Supreme Court interpretation. See id. (finding that Supreme Court precedent, such as Toyota Motor Mfg., Ky., Inc. v. Williams,
Additionally, the ADAAA requires a “less searching analysis” of whether a plaintiff is “substantially limited.” Kravits v. Shinseki, No. 10-861,
Temple argues that Mills does not meet the definition of disabled because she is not substantially limited in any major life activity. Specifically, Temple points to Mills’s testimony that she has continued to perform day-to-day activities (i.e., caring for herself and her daughter, driving, shopping, attending classes, and commuting on the bus or train) since being injured, that she has not treated with a healthcare professional since December 2009 or taken medication since that time, and that she worked without interruption until July 2009.
However, these statements, when considered in context and in light of other evidence in the record, do not foreclose a finding that Mills was disabled. To begin, “the determination of whether a person was a ‘qualified individual with a disability’ for the purposes of an ADA claim is not made from the time the lawsuit was filed or any other later time period, but from
the point at which the alleged discriminatory decision was made.” Bowers v. NCAA,
Mills argues that she was substantially limited in her ability to lift.
Under the less restrictive standard of the ADAAA, I find that Mills has offered sufficient evidence to raise a genuine issue of fact as to whether she was disabled at the time she was removed from her position and placed on leave.
2. Did Temple Discriminate Against Mills by Failing to Provide a Reasonable Accommodation?
“[A]n employer discriminates against a qualified individual with a disability when the employer does ‘not make reasonable accommodations to the known physical or mental limitations of the individual unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the [employer].’ ” Taylor,
An employee such as Mills can demonstrate that her employer failed to engage in the interactive process by showing (1) “the employer knew about the employee’s disability”; (2) “the employee requested accommodations or assistance for his or her disability”; (3) “the employer did not make a good faith effort to assist the employee in seeking accommodations”; and (4) “the employee could have been reasonably accommodated but for the employer’s lack of good faith.” Taylor,
First, Temple contends that it did not know of Mills’s disability. An employer’s duty to engage in the interactive process is contingent upon its knowledge of the employees disability. “The employer must have enough information to know of ‘both the disability and desire for an accommodation,’ or circumstances must at
Second, Temple argues that Mills never requested accommodation for her disability. “[E]ither by direct communication or other appropriate means, the employee ‘must make clear that [he/she] wants assistance for his or her disability.’ ” Conneen,
Again, I find that there is sufficient evidence of record for a reasonable juror to conclude that Mills informed Temple of her need for assistance. Mills testified that she had several conversations with Morlino and Murphy about her difficulty filing in which she requested help from student interns to complete the task. (PL’s Facts ¶¶ 108-09). Additionally, in the healthcare provider certification completed by Dr. Gupta, he wrote that Mills was “having trouble filing.” (Resp. Ex. B at 5.) Although Temple argues that Dr. Gupta later informed a Temple employee that this only applied immediately following an epidural injection when Mills needed to recuperate, Dr. Gupta denies ever having had such a conversation. (Resp. Ex. R at 1.) I must accept his version of the facts for summary-judgment purposes. On June 24, 2009, in response to a request to spend time filing, Mills wrote to Murphy: “I am not able to handle filing at this time; By doing so could further injure [m]y back. I have been organizing the loose files to prepare them to be filed. I am always happy to assist in the growth and development of the department. If you need further documentation please inform me.” (Resp. Ex. C at 1.) Temple’s ADA specialist acknowledged that when an employee tells a supervisor that they cannot perform a certain function of their job, that can be a means of requesting accommodation under the ADA. (Resp. Ex. G, Dep. of Dierdre Culbreath-Walton (June 16, 2011) at 33:11-17.) In response to Mills’s email, Murphy requested documentation and Mills provided her with a letter from Dr. Gupta describing her condition and work-related restrictions. (Resp. Ex. D.) In light of this evidence, a genuine dispute of fact exists as to whether Mills made a request for accommodation, which
Third, Temple contends that Mills cannot prove that Temple acted in bad faith. Employers such as Temple can demonstrate that they participated in the interactive process in good faith by showing, for example, that they met with the employee who requested the accommodation, they requested information about the employee’s condition and limitations, they asked the employee what accommodation she desired, they considered the employee’s request, and they discussed alternative accommodations if the requested accommodation was too burdensome. Taylor,
Specifically, Temple maintains that its offer of unpaid continuous FMLA leave was a reasonable accommodation and demonstrates good faith.
Temple also asserts that any breakdown in the interactive process is the fault of Mills, not Temple. Specifically, Temple emphasizes that Mills never returned her application for continuous FMLA leave despite numerous reminders and that she “never reached out to [Temple] after the decision to offer her leave as an accommodation.” (Def.’s Reply Brief in Supp. of
Finally, Temple urges me to conclude that Mills could not have been reasonably accommodated. “Generally, the question of whether a proposed accommodation is reasonable is a question of fact.” Buskirk v. Apollo Metals,
Viewing the facts in the light most favorable to Mills, I find that material issues of fact exist as to whether Temple made a good-faith effort to assist Mills in seeking accommodation. Therefore, I will deny Temple’s motion for summary judgment as to count I.
B. ADA Retaliation (Count II)
The ADA prohibits an employer from retaliating against an employee for engaging in certain protected conduct. See 42 U.S.C. § 12203(a). The statute provides: “No person shall • discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because • such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act.” Id.
Courts analyze ADA retaliation claims under the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, nonretaliatory reason for the adverse action. See id. “The defendant’s burden at this stage is relatively light: it is satisfied if the defendant articulates any legitimate reason for the [adverse action]; the defendant need not prove that the articulated reason actually motivated the [action].” Woodson v. Scott Paper Co.,
Finally, if the defendant articulates such a reason, “the plaintiff must be able to convince the factfinder both that the [defendant’s] proffered explanation was false, and that retaliation was the real reason for the adverse ... action.” Krouse,
Temple contends that it is entitled to summary judgment on Mills’s retaliation claim because Mills cannot establish a prima facie case of retaliation and, in any event, Temple has offered a legitimate, nonretaliatory reason for its actions and Mills has submitted no evidence demonstrating that there is a genuine issue of material fact about whether this reason is merely a pretext for retaliation. I will address each argument in turn.
1. Mills’s Prima Facie Case
Mills argues that she engaged in protected employee activity, the first element of a prima facie case of retaliation, when she requested an accommodation pursuant to the ADA. Although requesting a reasonable accommodation does not appear to “fit[ ] within the literal language of the statute,” Soileau v. Guilford of Maine, Inc.,
According to Mills, Temple’s decision to remove her from her position and offer her unpaid FMLA leave was an adverse employment action that satisfies the second element of her prima facie case.
Next, Temple argues that there is no evidence of a causal connection—the third element of a prima facie case of retaliation—between Mills’s protected activity and Temple’s adverse action. Specifically, Temple disputes the significance of temporal proximity in this case. The Third Circuit has stated that “the mere fact that adverse employment action occurs after [a protected activity] will ordinarily be insufficient to satisfy the plaintiffs burden of demonstrating a causal link between the two events.” Robinson v. City of Pittsburgh,
Here, the proximity of Mills’s presentation of the letter from Dr. Gupta describing her work-related restrictions to Temple’s decision to place her on leave supports an inference that there was a causal connection between the two. On July 7, 2009, Murphy forwarded Dr. Gupta’s letter to Morlino and Morlino immediately contacted Johnston to discuss how to proceed. (Def.’s Facts ¶ 51-52; Pl.’s Facts ¶ 142-43.) It took Morlino and Johnston five to fifteen minutes to decide to remove Mills from her job and place her on unpaid leave. (Johnston Dep. at 121:17-23; 139:10-140:1.) Mills received an email that same day stating that Temple would be unable to continue her services in her position. (Resp. Exhibit T at 1.) These events, which occurred during the course of one workday, are even closer in time than the 24-hour sequence I considered to be sufficient to establish causation in Reinhart v. Mineral Techs., Inc., No. 05-4203,
Thus, I find that Mills has carried her burden of establishing a prima facie case of retaliation.
2. Evidence of Pretext
Under the McDonnell Douglas framework, the burden shifts to the Temple to articulate a legitimate, nonretaliatory reason for the adverse action. “The defendant’s burden at this stage is relatively light: it is satisfied if the defendant articulates any legitimate reason for the [adverse action].” Woodson,
“[T]o defeat summary judgment when the defendant answers the plaintiffs prima facie case with legitimate, [nonretaliatory] reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a fact-finder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious [retaliatory] reason was more likely than not a ... determinative cause of the employer’s action.” Fuentes v. Perskie,
In sum, genuine disputes of fact make summary judgment as to Mills’s ADA retaliation claim inappropriate and I will deny Temple’s motion as to count II.
C. FMLA Interference Claim (Count III)
Temple contends that it is entitled to summary judgment on this claim because Mills cannot establish that Temple interfered with her FMLA rights. “The FMLA grants eligible employees the right to take up to twelve workweeks of leave in any twelve-month period if a ‘serious health condition ... makes the employee unable to perform the functions of the position of such employee.’ ” Sarnowski v. Air Brooke Limousine, Inc.,
Mills argues that Temple interfered with her FMLA rights by requesting a new healthcare provider certification before the expiration of her approved certification. Cf. Hurt v. Ecolab, Inc., No. 3-05-1508,
Temple does not dispute that it requested recertification from Mills in July 2009 before the expiration of her initial certification on November 26, 2009. Instead, it argues that this is a clear case of changed circumstances. According to Temple, Mills “went from no restrictions to substantial work-related restrictions in one day.” (Reply at 2.) However, as Mills points out, Dr. Gupta stated in the initial certification he completed in May 2009 that she was restricted from filing. (Resp. Ex. B at 5.) Temple argues that Dr. Gupta informed Susan Latorre that Mills was only restricted from filing immediately following her epidural injections. Therefore, Temple contends that Mills had no doctor-imposed work-related restrictions until she presented Maureen Murphy with the letter from Dr. Gupta in July 2009.
Mills, on the other hand, contends that the circumstances described by her initial certification had not changed at all—let alone, significantly. Dr. Gupta denies ever speaking with Susan Latorre, and maintains that Mills was restricted from filing before, during, and after her injections. (Resp. Ex. R at 1.) I must accept his version of the facts for purposes of this motion. Furthermore, drawing all reasonable inferences in Mills’s favor, as I must on summary judgment, the fact that Mills first offered Murphy a copy of the Certification to establish her restrictions suggests that she and Dr. Gupta understood her medical condition to impose restrictions on her ability to file at least until November 26, 2009. There is also evidence that Mills had not, in fact, been filing from late 2008 through July 2009.
This is, quite simply, a genuine dispute of material fact that must be resolved by a jury, and thus I will deny summary judgment as to Count III.
D. Due Process Claim (Count IV)
Count IV of Mills’s complaint states a claim for violations of the due-process clause of the Fourteenth Amendment to the United States Constitution. Mills, however, does not oppose Temple’s motion for summary judgment as to this claim. (Resp. at 3 n. 1.) Therefore, Mills has waived this claim, and I will enter judgment in favor of Temple and against Mills as to count IV.
IV. Conclusion
For the reasons explained above, I will deny in part and grant in part Temple’s motion for summary judgment. An appropriate order follows.
Notes
. Except as otherwise noted, the following facts are undisputed.
. Temple filed its motion for summary judgment on September 1, 2011. Mills filed her response in opposition on September 21, 2011. In her response, Mills "adopt[ed] into this Memorandum of Law the facts that were outlined at length in the Plaintiff's Response to Defendant’s Undisputed Facts and the Plaintiff’s Counterstatement of Facts.” (PL's Resp. to Def.’s Mot. for Summ. J. ("Resp.”) at 3.) However, Mills neglected to file her counterstatement of facts at that time. Temple filed a reply in support of its motion on September 28, 2011, noting this omission. Mills filed her counterstatement of facts the very next day, September 29, 2011. Although this counterstatement appears untimely, I will nevertheless consider it, as it is "merely a tool for the Court's ease of decision” and simply directs my attention to facts in Mills's timely filed exhibits, which I can and must consider in ruling on this motion for summary judgment. Cf. Lue Martin v. March Group,
. Mills alleges that her back was also injured in a second incident involving another coworker at a later date. (Def.’s Fact at 3 n. 2.) The details of this incident are not material to the motion before me.
. Naprosyn is the trademark preparation of naproxen, which is a nonsteroidal anti-inflammatory drug used in the treatment of
. Kyphosis is "abnormally increased convexity in the curvature of the thoracic spinal column.” Dorland’s at 1007.
. Mills herself estimates that she could not lift more than three pounds at that time. (Mills Dep. at 237:6-18.)
. Under the pre-amendment standards of the ADA, Mills’s restriction on lifting more than three pounds may not have sufficed to establish her as disabled under the Act. See Marinelli v. City of Erie,
. I need not address Mills’s argument that her ability to work is substantially limited because I conclude that a reasonable factfinder could find that she is substantially limited in her ability to lift. See 29 C.F.R. pt. 1630 app. § 1630.2(j) ("If an individual is substantially limited in any other major life activity, no determination should be made as to whether the individual is substantially limited in working.").
. In support of this position, Temple cites Conoshenti v. Pub. Serv. Elec. & Gas Co.,
In Conoshenti, the Third Circuit did not hold as a matter of law that an offer of leave is always a reasonable accommodation as Temple suggests, but merely noted in dicta that “the federal courts that have permitted a leave of absence as a reasonable accommodation under the ADA have reasoned, explicitly or implicitly, that applying such a reasonable accommodation at the present time would enable the employee to perform his essential job functions in the near future.”
In Wilson, the district court considered whether an employee's request for medical leave could be considered a request for reasonable accommodation.
. Temple also claims that Mills was paid after being removed from her position on July 7, 2009, until she was terminated on August 18, 2009. (Reply at 6.) Mills, however, testified that she was not paid for the entirety of that period. (Mills Dep. 153:21-154:13.) This material dispute of fact must be decided by a jury.
. Burlington involved a retaliation claim under Title VII of the Civil Rights Act of 1964, not the ADA.
. The Third Circuit has noted that it is “seemingly split" on the question whether the timing of the allegedly retaliatory action can, by itself, support a finding of causation. Robinson,