Third Circuit Court determines CVS warehouse worker not fired because of disability

By Nicholas Malfitano | Sep 23, 2016

PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has determined that CVS RX Services, Inc. did not fire one of its warehouse employees due to her disability.

According to a per curiam ruling issued Sept. 8, Judges D. Michael Fisher, Patty Shwartz and Robert E. Cowen opted to uphold a trial court verdict from the U.S. District Court for the Middle District of Pennsylvania, which turned back a disability discrimination case initiated by Nicole Lee Moore against CVS and granted summary judgment to the latter.

Moore was employed by CVS as a “piece picker," who takes items off warehouse shelves and places them in totes to fill store orders. Moore developed complications in her pregnancy in February 2012 and could not lift over her head or climb, and a result, asked CVS to give her a job that would not require overhead lifting or climbing.

Moore was informed that CVS “could not do so because her job was already a light duty job” and was instead told she could go out on short-term disability. According to court records, Moore’s initial leave was approved and extended at least five times, receiving short-term disability payments during this first leave period.

Moore returned to work in August 2012 after her child was born, but developed post-pregnancy complications. As a result, CVS’s Leave of Absence (LOA) department approved Moore’s leave for family bonding from Sept. 24, 2012, through Nov. 25, 2012. Moore again sought to extend her leave at the end of that term and LOA “asked her to provide medical certification from a health care provider.”

At that time, Moore’s nurse practitioner checked a box on the certification form indicating that Moore “could fully perform her job and that she needed only intermittent leave for follow-up doctor appointments.”

LOA informed Moore that the certification was inconsistent with a request for continuous leave, but Moore provided three more certifications over the next two and a half months. However, each one indicated that Moore could in fact perform her job and that she needed only intermittent leave for doctor appointments.

Around Jan. 28, 2013, Deborah Montrose, CVS’s Human Resource Manager, directed Human Resources Specialist Becky Gaffney to send Moore a termination letter, based on emails received from the LOA department stating Moore’s leave had expired, and based on Montrose’s knowledge that Moore had not returned to work. Montrose was not aware at the time that Moore had a leave extension request pending.

Montrose later learned the termination letter was premature, but did not inform Moore of the mistake, because she knew that Moore was communicating with LOA. Finally, Moore was terminated on March 11, 2013, because “she had failed to submit documentation supporting continuous leave.”

Subsequent to exhausting her administrative remedies, Moore filed a complaint in the District Court, raising claims of failure to accommodate her disability, disparate treatment, and retaliation (the last of which Moore later withdrew). After analyzing the evidence, the District Court granted CVS’s motion for summary judgment and Moore filed an appeal.

However, the Third Circuit felt the District Court made a proper decision and commented Moore had not met the latter two of the three qualifications necessary to prove her case, which were: “(1) Plaintiff was disabled within meaning of statute; (2) Plaintiff was a ‘qualified individual’; and (3) The employer knew plaintiff needed reasonable accommodation and failed to provide it.”

“Moore failed to establish the second and third requirements. She did not point to record evidence establishing a genuine issue regarding whether she was entitled to protection as a ‘qualified individual’ under the Americans with Disabilities Act (ADA),” the Third Circuit said.

The Court next addressed Moore’s first period of leave.

“At the time of her first leave of absence, Moore could not lift over her head or climb. She testified in her deposition that there were no products that she could have picked without lifting, bending, or climbing,” the federal appellate court said. “As she could not perform the essential functions of her job, she was not a ‘qualified individual’. And even if she were entitled to the protections of the ADA, she did not establish the third requirement. CVS provided her with a reasonable accommodation by allowing her six months of paid leave.”

The Third Circuit added during Moore’s second leave period, she again “did not establish that she could have done the job with reasonable accommodation” – further, the Court explained Moore did not prove she suffered an adverse action because of her disability.

“As to the first leave period, Moore complains that she was given paid leave rather than being placed in a different position. Paid leave can hardly constitute an adverse employment action,” the Third Circuit said. “As to her second leave period, Moore argues that the premature termination letter was an adverse employment action. But Moore did not establish that she was harmed by that letter. Instead of relying on that letter, she continued to speak with LOA about extending her leave. Finally, CVS argues that Moore cannot argue that her final termination was an adverse action, because she did not so argue in the District Court.”

The federal appellate court decided Moore’s argument was invalid.

“But even if we were to consider that argument, we would find it without merit. Moore was terminated because she could not establish that she was eligible for continuous leave. At the time of her termination, her medical provider stated that she could perform her job. Thus, her termination was not ‘because of’ her disability,” the Third Circuit concluded.

The plaintiff is represented by W. Charles Sipio and Wayne A. Ely of Kolman Ely, in Penndel.

The defendant is represented by Barbara V.G. Parker of Edwards Wildman Palmer in Boston and Maria Greco Danaher of Ogletree Deakins Nash Smoak & Stewart, in Pittsburgh.

U.S. Court of Appeals for the Third Circuit case 15-3836

U.S. District Court for the Middle District of Pennsylvania case 4:14-cv-01318

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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