MEMORANDUM
Discrimination law has long required disabled employees suing their former employer for discrimination and retaliation after requests for accommodations to timely bring administrative claims. Upon arriving in federal court, the employee must addtice specific facts after discovery sufficient to create genuine of issues of material fact regarding whether the employer’s termination is pretext for invidious discriminatory. intent. The employee meets this burden with evidence which could lead a fact-finder to disbelieve the employer’s business reason or believe an invidious discriminatory reason was more likely than not a motivating or determinative cause of the termination. A disabled employee’s conclusions, broad accusations and suggested inferences unsupported by facts will not defeat an employer’s summary judgment motion.
After her employer SEPTA transferred her from a bus driver job with over twenty years experience to a booth cashier position with, her consent and to accommodate her sleep related disabilities, Roslyn Oden requested further accommodations concerning her tardiness at her-new cashier job in mid-2011 or early 2012 which SEPTA did not address. Oden did not raise this alleged failure to accommodate until mid-2013. During the- almost eighteen (18) month term as a cashier, SEPTA suspended Oden for conduct and she answered two separate complaints regarding altercations with fellow cashiers. After investigations, SEPTA did not discipline her or affect her pay.
Thereafter, SEPTA videotapes confirmed Oden left her cashier post for an extended time during a January 2013 work day, costing it fares and violating SEPTA policy. After formal and informal hearings, SEPTA terminated Oden in February 2013. Several months later, Oden filed administrative claims and thereafter sued SEPTA.
Oden’s Opposition to SEPTA’s motion for summary judgment does not identify specific facts creating a genuine issue for trial. All evidence confirms SEPTA’s February 2013 termination is based on legitimate business reasons arising from Oden’s January 2013 violation of SEPTA policy. We grant SEPTA’s motion for summary judgment dismissing Oden’s claims in the accompanying Order.
I. UNDISPUTED FACTS
In 1989, Plaintiff Roslyn Oden (“Oden”) began driving buses for Defendant Southeastern Pennsylvania Transportation Authority (“SEPTA”). (A. at 3-4.)
Defendant Stacey Richardson (“Richardson”), SEPTA’s Assistant Director of Transportation, supervised Oden as a cashier.
On or about July 3, 2011, shortly after beginning as a cashier, Oden told Darryl Wade, Director of Transportation, of her sleep disorders and her concern about reporting times seeking a flex schedule and use of personal or sick time to avoid being marked late. (A. at 23-24.) Oden requested leeway for her reporting times as she had problems waking up. (A. at 23.) At the end of June or beginning of July 2011, Oden also met with Richardson and asked for an accommodation.' (A. at 27-28.) Oden requested a flexible reporting time and for Richardson to “work around” her being late. (A. at 28.) From July 2011 until April 2012, Oden did not see Richardson and had minimal, if any, telephone conversations with her. (A. at 30-31.)
Employment actions not leading to adverse action.
On January 4, 2012, Dr. Stafford evaluated Oden and wrote a letter to SEPTA representing “accommodations for lateness and drowsiness on the job will still be required” until workup is complete. (A. at 448.) Dr. Stafford further represented Oden “should be able to perform all of her duties.” (Id.)
On January 30, 2012, Oden went oh an approved FMLA leave, and on April 6, 2012, SEPTA’s Medical Department approved Oden to return to work. (A. at 513-
On October 24, 2012, SEPTA cashier Chevelle Steward filed a. complaint against Oden after an altercation in the cashier booth. (A. at 76-77.) On October 30, 2012, Richardson interviewed Oden about the incident, but did not discipline Oden although Oden claims Richardson threatened to fire her. (A. at 34-35a, 304.)
On November 22, 2012, Oden became involved in an altercation with a second cashier, Latonya Gibbs. (A. at 38-39.) Oden claimed cashier Gibbs assaulted her. SEPTA “terminated immediately or held off’ Oden pending an investigation of the incident. Upon close of the investigation thirteen (13) days later, Oden returned to work. Oden did not meet with anyone regarding the incident, was not interviewed by anyone regarding the incident, and did not meet -with or have any contact with Richardson regarding the incident. (A. at 39, 436-37.) SEPTA paid back pay to Oden for the thirteen (13) days she missed and did not discipline her.
Employment conduct leading to termination.
Following her January 31, 2013 work day, Richardson walked from her office at 1234 Market Street to the train platform at 2nd and Market for her commute home. On the platform, Richardson could not see the cashier in the window but as she came closer, Richardson observed Oden leaning on her elbow sleeping or being inattentive at her cashier booth. (A. at 78.) Richardson notified SEPTA’s Derrick Supplee (“Sup-plee”), zone supervisor for that train platform. (Id.) Supplee reviewed the video from the relevant time period, which revealed Oden using her phone for 40 minutes, leaving her booth without permission for seventy-five (75) minutes, and failing to properly register twenty (20) fares. (A. at 79-83.) As Oden’s conduct on video evidenced violations of SEPTA policy, Sup-plee recommended ■ SEPTA terminate Oden’s employment. SEPTA then held informal and formal hearings with union representatives resulting in the hearing of
On July 26, 2013, Oden filed a charge of discrimination with the Pennsylvania Human Relations Commission (“PHRC”) and the Equal Employment Opportunity Commission (“EEOC”). (A. at 85-90.),
II. ANALYSIS
On October 13, 2014, Oden filed suit claiming SEPTA and Richardson (collectively, “SEPTA”) owe her damages for violating 42 U.S.C. § 12112 under the Americans with Disabilities Amendments Act (“ADAAA”) and the Pennsylvania Human Relations Act (“PHRA”) and violating 42 U.S.C. § 12203 under the ADAAA and the PHRA by retaliating against her. Oden also sues Richardson for allegedly violating the Civil Rights Act, 42 U.S.C. § 1983.
Following discovery, SEPTA moves for summary judgment arguing: 1) Oden’s ADA discrimination claims are time barred and fail substantively; 2) Oden’s ADA retaliation claims fail to establish a causal connection between the protected act and the adverse employment action, and fail to demonstrate SEPTA’s legitimate, non-discriminatory reasons were pretext for discriminatory intent; and 3) Oden’s Section 1983 claim fails to demonstrate purposeful discrimination on the basis of her disability, as well as a causal connection between her alleged protected speech and her termination.
As Oden cannot adduce genuine issues of material fact to defeat summary judgment dismissing her claims as a matter of law, we grant SEPTA’s motion for summary judgment in the accompanying Order.
A. Oden’s failure to accommodate claims arising from her mid-2011 and early 2012 requests are time-barred.
SEPTA argues'many of Oden’s alleged adverse employment actions are time barred.
Oden filed her EEOC and PHRA complaint on July 26, 2013. We may consider unlawful employment practices up to 300 days prior to the date of filing, or September 29, 2012. Viewing the facts in light most favorable to Oden, she requested reasonable accommodations relating to her new cashier position in June or July 2011.
A request for reasonable accommodation is considered a “one-time occurrence rather than a continuing practice.” Mercer,
Oden filed her EEOC and PHRA complaint -on July 26, 2013, thus making the statutory cutoff September 29, 2012. Oden alleges she met with SEPTA’s Wade and Richardson in July 2011 to discuss accommodations in her cashier position for her various sleep related disabilities. Accordingly, SEPTA’s failure to accommodate occurred when Wade and Richardson effectively denied Oden’s request in July 2011, well before the statutory cutoff.
As each incident of failure to reasonably accommodate is its own discrete act and a onetime occurrence rather than a continuing practice, Oden’s claims based on accommodation requests from June or. July 2011, or even January 2012, are time barred. To the extent Counts I and II are asserting failure to accommodate claims, we grant summary judgement in favor of SEPTA on those claims.
B. Oden’s disability discrimination claim fails because she cannot show pretext.
While it is apparent from Oden’s response to SEPTA’s motion for summary judgment her primary claim is SEPTA’s failure to accommodate, she also alleges SEPTA terminated her because of her disabilities. SEPTA argues Oden cannot establish a prima facie case of disability discrimination because she cannot perform an “essential function” of the cashier job— i.e. punctual attendance at work.
Oden must establish a prim a facie case of disability discrimination by demonstrating: “(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 accommodation; and (3) [s]he has suffered an otherwise adverse employment decisions as a result of discrimination.” Taylor v. Phoenixville Sch. Dist.,
1. Is punctuality an essential function of the cashier job?
In determining an essential function of a cashier job, we may look to various sources. “Essential functions must be fundamental to one’s job and not simply marginal. The inquiry into whether the job requirement is essential to one’s job is
1) The employer’s judgment as to which functions are essential;
2) Written job descriptions prepared before advertising or interviewing applicants for the job;
3) The amount of time spent on the job performing the function
4) The consequences of not requiring the incumbent to perform the function;
5) The terms of the collective bargaining agreement;
6) The work experience of past incumbents in the job; and/or
7) The current work experience of incumbents in similar jobs
29 C.F.R. § 1630.2(n)(3).
SEPTA, as an employer serving customers, values punctual attendance from its cashiers. It is difficult to imagine punctuality is not required by most employers when dealing with the public. This factor weighs in favor of finding punctuality an essential function of the job. We find many consequences of a cashier not being punctual including fares not registered, passengers cannot have their questions answered, handicapped passengers may not be able to reach the platform, and SEPTA’s operations would suffer. Accordingly, this factor also weighs in favor of punctuality being an essential function. Additionally, the terms of the collective bargaining agreement place an emphasis on punctuality with its comprehensive “points policy” for tardiness. This factor also weighs in favor of punctuality being an essential function of the cashier position. It is no surprise an employee must show up to work on time or risk termination.
While our Court of Appeals has found regular attendance to be an essential function in most jobs, it has yet to address a case with employees serving the public and finding punctuality to be an essential function of a job absent a compelling reason. See Miller v. Univ. of Pittsburgh Med. Ctr.,
In some ways Oden’s case is similar to Earl v. Mervyns, Inc.,
While we cannot presently imagine an employer serving the public not viewing punctuality as an essential function for the position, we decline to find this observation as a matter of law here and will not grant summary judgment to the employer SEPTA on this issue. However, because we find Oden cannot establish pretext and her claims must be dismissed as a matter of
2. Oden cannot show SEPTA’s legitimate non-discriminatory reasons are pretext for disability discrimination.
SEPTA conducted an investigation and found Oden violated multiple SEPTA policies resulting in her termination. SEPTA found Oden used her cellphone in her booth and left her booth for seventy-five (75) minutes resulting in twenty (20) unregistered fares. At the March 7, 2013 formal hearing, neither Oden nor her union contested the occurrence of these events. SEPTA met its “relatively light” burden under McDonnell Douglas.
Oden must now show the real reasons for SEPTA’s termination of her employment were pretextual by “pointing] to some evidence, direct or circumstantial, from which a factfinder, could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes,
Oden never clarifies facts for why she believes SEPTA’s given reasons are pretextual. Giving her the benefit of any doubt, while she does not challenge the credulity of the legitimate reasons, she argues SEPTA possessed an invidious discriminatory reason which ’ is more likely than not the real reason for her termination. Oden argues Richardson went to her platform to “snoop around” yet Richardson testified she often uses that platform to catch the train home.
Oden attacks Supplee’s review of the video alleging his investigation should have been stopped when he apparently discovered oden had not been sleeping as Richardson claimed. (EOF Doc. No. 27, at 21.) Oden argues Supplee, influenced by Richardson, “continued reviewing Plaintiffs work performance for over four hours, looking for a reason to subject Plaintiff to disciplinary action, and using false allegations to support termination of Plaintiffs employment.” (Id.)
Oden’s conclusory argument is not persuasive. Richardson’s memorandum to Supplee to investigate further, did not solely allege Oden may have been asleep at the booth. (A. at 78.) Richardson believed Oden may have been “so inattentive, at the
Süpplee, not Richardson, recommended SEPTA terminate Oden’s emplojmient due to her infractions confirmed by the video. Supplee testified 'to never having met Oden before the informal hearing. He did not know of Oden’s disabilities and Richardson never informed him of any. (A. at 382-85.) We find it difficult to deduce Sup-plee recommended Oden’s termination for any reason other than the evidence he witnessed on video, when he had no knowledge of Oden’s disability. Accordingly, we find Oden 'cannot show SEPTA’s legitimate business reasons for terminating her were pretext.
C. Oden’s ADA retaliation claim fails . because she cannot show a causal connection or pretext.
Oden claims SEPTA retaliated against her by terminating her in April 2012 and February 2013 for engaging in the protected activity of requesting accommodations in July 2011. To defeat summary judgment under the McDonnell Douglas framework, Oden must first establish a prima facie case of retaliation. Marra v. Philadelphia Housing Authority,
1. Oden has not timely claimed the April 2012 termination is retaliatory.
Before considering whether SEPTA terminated her in February 2013 in retaliation for asking for ‘ accommodations in July 2011, we first address whether Oden can now claim her April 2012 termination is retaliatory or if this claim is time-barred. Employment practices such
2. Oden cannot establish a prima facie retaliation claim.
Oden cannot establish a prima-facie retaliation claim: (1) she engaged in protected employee activity; (2) . SEPTA’s adverse action either after or contemporaneous with her protected activity; and (3) a causal connection between her protected activity and SEPTA’s February 2013 termination. Fogleman v. Mercy Hospital, Inc.,
SEPTA concedes Oden engaged in a protected employee activity.- (EOF Doc. No. 18, at 19.) SEPTA challenges Oden’s ability to show, a causal connection between her protected activity and her ultimate termination. SEPTA argues Oden cannot sufficiently connect her July 2011 requests for accommodation and the February 2013 termination.
We find Oden cannot show a sufficient causal connection between her July 2011 protected activity and the February 2013 termination. Fourteen (14) months after the protected activity, SEPTA reinstated Oden in September 2012.
Oden then focuses on the five (5) months between 'the' reinstatement and termination. The five months between her reinstatement and' her termination are not “unduly suggestive” of retaliatory motive.
Oden also points to “excessive monitoring” from Richardson. (EOF Doc. No. 27, at 21.) On January 31, 2013, Oden alleges Richardson entered Oden’s assigned station “to snoop around and monitor” Oden’s work. (Id.) Oden claims Richardson falsely alleged Oden slept at her work station. (Id.) Richardson wrote a memorandum to Supplee, observing a “female cashier leaning down on one elbow, while supported by the other.” (A. at 78.) Richardson noted her and Oden’s eyes met “simultaneously” and Oden’s appearance “left the impression she had been awakened or was being so inattentive, at the window, which is a violation ....” (Id.) Richardson asked Supplee to.investigate further. (Id.)
We do not find either of these incidents, alone or in the aggregate, sufficient to bridge the causation gap. Richardson’s October 2012 meeting with Oden is not capable of evidencing a pattern of antagonism towards Oden after her reinstatement. See LeBlanc v. Hill School, No. 14-1674,
3. Assuming Oden establishes a prima facie retaliation case, SEPTA articulates a legitimate, nón-discrimina-tory reason for the adverse employment action.
Even assuming Oden establishes a prima facie retaliation case, SEPTA satis-
Here, SEPTA satisfied its burden. Oden claims SEPTA subjected her to adverse employment actions through the February 2013 termination. SEPTA claims the termination did not relate to the disability, and instead derives from multiple SEPTA policy violations. Oden’s supervisor reviewed a video of Oden on January 31, 2013. The video showed Oden’s inattentiveness while on duty, looking at her cell phone for an extended period of time, leaving her booth for 75 minutes and allowing 20 fares to go unregistered. Taken as true, SEPTA produced sufficient evidence establishing the light burden of articulating a legitimate, nondiscriminatory reason. The burden thus rebounds to Oden to prove SEPTA’s response is merely a pretext and retaliation actually motivated its adverse employment action.
4. Oden fails to prove SEPTA’s legitimate, non-discriminatory reasons constitute pretext for the adverse employment action.
For the , same reasons discussed in Oden’s disability discrimination claim, Oden fails to provide sufficient evidence for a reasonable jury to find SEPTA’s reasons for the Oden’s termination were actually pretext for disability discrimination. She adduces no competent evidence demonstrating pretext. Fed. R. Civ. P. 56 (c)(3).
D. Oden’s Section 1983 claim against Richardson fails for the same reasons as the ADA claims.
In an archetypal bootstrap, Oden claims Richardson violated her rights under the Equal Protection Clause of the Fourteenth Amendment and under' the Protestation Clause of the First Amendment when Richardson failed to accommodate Oden’s request' and then subjected her to retaliatory actions in April 2012' and February 2013. (ECF Doc. No. 27, at 22-23.) SEPTA argues plaintiff may not assert a § 1983 claim based on. ADA violations, and regardless, Oden failed to demonstrate any purposeful discrimination on the basis of her disability. (ECF Doc.-No. 18, at 21.)
“Section 1983 is unavailable to enforce statutory rights in two situations ... (1) ‘where Congress has foreclosed such enforcement of the statute in the enactment itself;’ and (2) “where the statute did not create enforceable rights, privileges or immunities within the meaning of § 1983.’” Mercer,
To bring a successful claim for denial of equal protection, Oden must prove existence of purposeful discrimination by demonstrating Richardson treated her differently from other, similarly situated employees because of her disabled sta
To establish a First Amendment retaliation claim, Oden must show she engaged in constitutionally protected conduct and “the protected activity was a substantial factor in the alleged retaliatory action.” Id. (quoting Hill v. Borough of Kutztown,
III. CONCLUSION
We grant summary judgment on Oden’s ADA and PHRA failure to accommodate claims because they are time barred. Further, we grant summary judgment in favor of SEPTA on Oden’s ADA and PHRA disability discrimination and retaliation claims as she cannot establish the proffered reasons for her termination were pretext for either for disability discrimination or .retaliation. Lastly, we grant summary judgment on Oden’s § 1983 claims as she fails to introduce evidence of purposeful' discrimination or evidence of a causal connection between her protected activity and her termination.
Notes
. The Court’s Policies require a Statement.of Undisputed Material Facts ("SUMF”) filed in support of a summary judgment motion. SEPTA filed its SUMF at ECF Doc. No. 18-5. Oden responded to the SEPTA’s SUMF and included additional facts she contends create a genuine issue of material fact at ECF Doc. Nos. 27-1 and 27-2. The party moving for summary judgment must also submit an appendix of exhibits or affidavits. SEPTA’s appendix appears at ECF- Doc. No. 18-1. The responding party may submit additional ex
. SEPTA claims Oden is only now introducing new disabilities previously not alleged such as prolonged post-traumatic stress disorder, generalized anxiety disorder, attention deficit disorder, and fibromyalgia. (ECF Doc. No. 32, at 2-4.) Oden testified these alleged additional disabilities played no part in her requests for accommodation and did not affect her ability to perform her cashier job.,Additionally, there is no cited evidence Oden ever informed SEPTA of any disabilities other than her sleep relateddiSabilities.
. Without citing evidence, Oden claims Richardson told her in 2011, "I really don’t want you here.” (ECF Doc. No. 27, at 2).
. Oden claims Richardson falsified documents to terminate her employment. Specifi- . cally, Oden alleges Richardson failed to warn her of her point total prior to termination and then subsequently lied about it when asked whether she did in fact provide warnings. (Id. at 271.) However, Oden testified Richardson did not actually falsify any documents but rather she alleges "she spoke the lie” of providing warning of her point total. (Id.)
. Summary judgment is proper when there is no genuine dispute of material fact and the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute as to a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
. Oden failed to respond in any measure to this argument. As such, the Court may consider any contrary argument waived. Walker v. Centocor Ortho Biotech, Inc., No. 11-4917,
. Our analysis references only Oden’s ADA claims, because the ADA analysis applies equally to a PHRA claim. Kelly v. Drexel University,
. Oden‘also discusses a subsequent request for accommodation in January 2012. (A. at 448.) We are also barred from reviewing this request as outside the 300 day period. Further, continually requesting an accommodation does not render a claim timely as the “limitations period would be rendered meaningless.” Mercer,
. SEPTA concedes Oden possesses the appropriate educational background, employment experience, and skills to perform as a cashier, which is the first inquiry of the "otherwise qualified prong." Deane v. Pocono Med. Ctr.,
. Many of the "facts” which Oden asserts are disputed are entirely contained in her own declaration attached to her response to the summary judgment motion. Those "facts," to the extent Oden relies on them, will not be considered where they are not supported by evidence in the record.
. SEPTA also argues- a lack- of temporal proximity between the July 2011 protected activity and the April 2012 termination. While we agree that there is no temporal proxirnity and -no evidence qf an intervening pattern of antagonism at that time, we find any such claim time barred.
. Oden alleges she made a request for accommodation in September 2012 as she was being reinstated. This alleged request occurred prior to the September 29, 2012 statutory cutoff but we assume it is sufficient to show. protected activity for her retaliation claim. If this is not protected activity, then Oden’s July 2011 requests for accommodation—18 months prior to her February 2013 termination—are even more attenuated.
. Oden also points to a subsequent incident with another cashier in November 2012. This incident resulted in Oden being “held off” for thirteen (13) days. (Id. at 314.-16.) There is no record evidence Richardson, or anyone with knowledge of Oden's disability, investigated this incident. No one interviewed Oden about the incident. (Id. at 316.), Further, after the thirteen days expired, Oden returned to work with back pay for time missed, full benefits, no discipline, and no loss of seniority, (Id. at 316-17.) We do not find this incident to be in any way relevant to our analysis because there is no evidence of antagonism towards Oden.