Pennsylvania Record

Wednesday, February 19, 2020

Third Circuit: Kmart employee couldn't prove her medical disability was the reason she wasn't rehired


By Nicholas Malfitano | Aug 15, 2018


PHILADELPHIA – A former Kmart employee who attempted to return to the company did not prove her medical disability was the reason she was not rehired, a federal appellate court ruled.

On Aug. 10, a panel comprised of U.S. Court of Appeals for the Third Circuit judges Patty Shwartz, Cheryl Ann Krause and Julio M. Fuentes upheld a prior decision from the U.S. District Court for the Eastern District of Pennsylvania, granting summary judgment to Kmart and defeating the appeal of plaintiff Thermuthis Lee.

Lee says she once worked part-time for Kmart as a cashier from 2007 to 2012, before leaving to address health issues requiring kidney dialysis treatment. In 2014, Lee wanted to return to work and applied for a part-time cashier position at a different Kmart store, explaining she could work 20 to 29 hours per week.

Lee added she could work on Saturdays and Sundays from 2 p.m. to 6 p.m. and Tuesdays and Thursdays from 10 a.m. to 2 p.m., and that she could not work on Mondays, Wednesdays, and Fridays. Lee called Kmart about her application, and Eliza Woodson, a Human Resources employee, scheduled her for an interview.

Both parties agree the interview did not go well, as Woodson had a negative view of Lee’s attitude and there were conflicts between the two over scheduling availability. Woodson stated that she did not pursue Lee further based on the interview, and because there were other candidates with open availability during the store’s 12 to 13 hours of daily operation.

In Lee’s view, she told Woodson that she could not commit to working on the days she received dialysis treatments (Mondays, Wednesdays, and Fridays), but that she might be able to change her treatment days. Lee stated that she asked for a flexible schedule, but Woodson allegedly told her that there were other candidates who had more availability.

After Lee learned that she did not get the job, she filed a charge of disability discrimination with the Equal Employment Opportunity Commission – a charge the EEOC dismissed. Lee filed a complaint in Pennsylvania state court against Kmart for discrimination in violation of the Americans with Disabilities Act, and Kmart removed the case to District Court. 

After discovery, the District Court granted summary judgment in favor of Kmart and Lee appealed. However, The Third Circuit said Lee did not show the reasons Kmart presented for passing on employing her were a form of discrimination.

The District Court concluded, “Even if Lee was qualified and established a prima facie case, there is not an issue of fact as to whether the reasons Kmart advanced for not hiring her – her limited availability and poor interview – were a pretext for discrimination.”

Accord to Woodson, Kmart was seeking candidates with a wide range of availability to cover the hours that the store operated, and other candidates stated on their applications that they were available anytime. Lee testified she told Woodson that the hours she had stated she was available could be changed, and she argued in her appeal that her application reflects that she could work between 20 and 29 hours per week.

“But there is no evidence from which a juror would disbelieve that Lee’s lesser availability compared to other candidates was a reason Woodson did not wish to hire her. Also, while the parties may dispute why the interview did not go well, it is undisputed that it was not a good interview. There is also no evidence from which a juror could reasonably believe that ‘an invidious discriminatory reason was more likely than not a motivating or determinative cause’ for Woodson’s decision,” the Third Circuit said.

Further, the Third Circuit court did not concur with Lee’s allegations she was disqualified for employment on the basis of disability.  

“Woodson attested that her brother had kidney dialysis and that she would not have disqualified a candidate on this basis. Lee argues on appeal that Woodson failed to acknowledge in her affidavit and concealed that she had submitted an earlier application for a cashier position, but the relevance of that application is unclear as Woodson does not appear to have received it and she interviewed Lee after she submitted the second application. Lee sought a flexible schedule as an accommodation. The District Court noted, and the record reflects, that Lee stated that she told Woodson that she could work hours other than those set forth on her application, but she did not define what those hours were,” the Third Circuit said.

“Lee’s testimony suggests that at the time of the interview she did not yet know when she would be able to work because she was just starting dialysis. She admitted in her response in opposition to the summary judgment motion that she did not then know how much she would be able to do. Lee’s proposed accommodation of a flexible schedule was ‘clearly ineffective.”

The Third Circuit court believed Lee raised a valid factual issue as to whether she asked Woodson for an accommodation, but due to insufficient evidence presented on that point, the judges felt summary judgment was still warranted.

“Lee argues on appeal that the District Court failed to consider the exhibits to her response to Kmart’s summary judgment motion, which are not included in the record. Lee has not shown that the exhibits preclude summary judgment,” the Third Circuit said.

“Some of the exhibits, for example, show that Lee was recognized for excellent customer service, but the District Court did not decide whether Lee was qualified for the position. Lee also argues that Kmart did not file her entire deposition transcript in District Court, but she did not present this argument below and it is not properly before us. Accordingly, we will affirm the judgment of the District Court.”

The defendants were represented by Kevin Richard Brady, Jacob Oslick and Raymond Baldwin of Seyfarth Shaw, in Boston, New York City and Washington, D.C, respectively.

U.S. Court of Appeals for the Third Circuit case 17-2049

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-02011

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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