PHILADELPHIA – A federal appeals court has issued a partial ruling and remanded a case where a woman working for the Pennsylvania Board of Probation and Parole claimed she faced pregnancy discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.
U.S. Court of Appeals for the Third Circuit judges Cheryl Ann Krause, David J. Porter and Cindy K. Chung ruled to vacate a prior granting of summary judgment in Samantha Peifer’s case versus the Commonwealth of Pennsylvania and its Board of Probation and Parole.
Chung wrote the Court’s opinion in this case.
“Peifer worked for the Board as an Alcohol and Other Drugs agent. In that role, she worked with drug and alcohol offenders on parole. Her job required her to be able to perform various physical functions – for instance, running to catch escaping offenders, restraining offenders during arrests, and moving offenders to take them into custody. In September 2019, Peifer was diagnosed with multiple sclerosis. About four months later, in January 2020, she learned that she was pregnant. Around March 2020, Peifer began asking the Board to accommodate her inability to perform certain tasks due to her pregnancy by assigning her to work ‘light duty,’ also known as ‘modified duty,” Chung said.
“At first, she made informal requests. On March 14, 2020, she formally requested light duty by sending an email with a doctor’s note to her supervisor, Joseph Bentzley. Peifer said that she was concerned about her pregnancy and asked to do the same type of modified work that the Board provided for employees who were injured at work or on “desk duty” for discipline. The Board’s Eastern District Director, Michelle Rivera, denied Peifer’s request the next day. Rivera said that ‘modified/light duty for any Parole Board employee is only approved for work related injury.’ Rivera also told Peifer that if she could not ‘meet all of [the] essential functions’ of her job, she should talk to the Board’s Family and Medical Leave Act coordinator, in effect, to discuss taking unpaid leave under the FMLA.”
A few days later, on March 25, 2020, Peifer sent Director Rivera and supervisor Bentzley an updated doctor’s note. The note listed 94 functions of Peifer’s role and said that Peifer could not perform 23 of them; such as not being able to run or use certain kinds of force to catch, arrest or move offenders.
Rivera responded almost immediately and repeated the statements in her first denial: That the Board only approved light duty for employees with work-related injuries, and that if Peifer could not do the essential functions of her job, she should talk to the FMLA coordinator.
Therefore, Peifer took leave starting on March 26, 2020, using a combination of unpaid FMLA leave and vacation time. About a month later, on April 21, 2020, Peifer filed a charge with the U.S. Equal Employment Opportunity Commission, alleging discrimination based on sex, pregnancy and disability, as well as retaliation.
“On May 14, 2020, the Board changed course and supervisor Bentzley emailed Peifer to say that the Board had ‘the ability to accommodate [her] request [for modified duty] based on [her] physician’s restrictions.’ The Board did not state why it could now accommodate her light-duty request and, during discovery in this case, Bentzley testified that the accommodation was provided due to Peifer’s multiple sclerosis diagnosis. In assigning Peifer to light duty, the Board provided Peifer with a ‘Modified Duty Position Description.’ The Position Description said that Peifer’s work would be modified according to the ‘restrictions’ in her doctor’s note. It also said that Peifer would work a specified ‘schedule’ and that the ‘majority of [her] responsibilities’ would be ‘conducted in the office.’ Peifer signed the Position Description. Peifer ended her leave and began her light-duty assignment on May 18, 2020. When she resumed work, the Board reinstated the leave that Peifer took and reimbursed her for the salary she lost during her period of unpaid leave,” Chung said.
“10 days after Peifer began her light-duty assignment, on May 28, 2020, she asked for another accommodation. She submitted another doctor’s note stating her doctor’s opinion that she should ‘be allowed to work from home due to her high-risk pregnancy and her risk of exposure to COVID-19 in the workplace,’ or ‘if that is not possible, she must be provided the proper personal protective equipment in the form of a mask, face shield and gloves at all times.’ In response, the Board provided her with personal protective equipment, but did not let her work from home. The Board explained to Peifer that, consistent with her Modified Duty Position Description, her ‘modified duty position…required [her] to report to the office and complete a majority of [her] job responsibilities in the office.’ Peifer filed a second charge with the EEOC on June 26, 2020, alleging discrimination based on sex, pregnancy and disability, as well as retaliation.”
The EEOC issued Peifer a right-to-sue letter for all three charges, leading Peifer to file a complaint against the Board in the U.S. District Court for the Eastern District of Pennsylvania. She claimed discrimination and retaliation under Title VII and the PDA.
The Board moved for summary judgment, and the District Court granted its motion, deciding that Peifer could not make out a prima facie case for any of her claims.
Peifer timely appealed to the Third Circuit, arguing that she can establish a prima facie case as to each of her two theories: (1) By a more traditional showing that she suffered an “adverse employment action” because she was pregnant; and (2) By showing that the Board failed to accommodate her in the same way it accommodated non-pregnant employees who had a similar inability to work.
“We begin with Peifer’s argument that she was constructively discharged when she resigned in September 2020, and conclude that Peifer cannot show that she was constructively discharged. We evaluate claims of constructive discharge under an ‘objective standard’ that asks ‘whether a reasonable person under the circumstances ‘would have felt compelled to resign.’ Peifer’s working conditions – working light duty with the provision of PPE – do not reach that level. Indeed, these accommodations were provided in response to, and consistent with, Peifer’s doctor’s opinions. Peifer offers no evidence that the conditions her doctor endorsed were in fact so intolerable that they would have forced a reasonable person to quit. We affirm the District Court as to this asserted adverse employment action. Our analysis of Peifer’s argument based on the Board’s denials of her accommodation requests is different, however. The District Court decided that the Board’s denials did not constitute adverse employment action, relying upon this Circuit’s precedent and finding that Peifer did not allege facts reflecting a ‘significant’ employment-related harm,” Chung stated.
“Specifically, the Court found lacking Peifer’s allegations that she suffered forced leave and corresponding temporary loss of pay and benefits, uncertainty, revocation of state-issued equipment that flowed from it, a less flexible work schedule, and an unsafe work environment during her modified-duty assignment. The District Court concluded that although Peifer raises ‘many grievances,’ they ‘do not rise to the level of an adverse employment action. However, while this appeal was pending, the Supreme Court held in Muldrow v. City of St. Louis, that, contrary to our prior precedent, an employee need not demonstrate that the asserted adverse employment action was a “serious and tangible” employment-related harm. In Muldrow, the Court rejected that the harm must be ‘serious,’ ‘significant,’ ‘substantial,’ or ‘any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.’ Rather, the Court explained that an adverse employment action means simply that the employee suffered ‘some harm’ to a term or condition of employment – in other words, that the employer treated the employee ‘worse’ because of a protected characteristic. Because Muldrow made clear that adverse employment action need not be serious, we will remand so that the District Court can consider in the first instance whether Peifer has asserted harms sufficient to establish ‘some’ employment-related harm for her prima facie case under Muldrow.”
Chung and her colleagues then turned their attention to the criteria under failure to accommodate.
“Here, Peifer alleges that the Board failed to accommodate her in two ways: by (1) Denying her requests for light duty beginning in March 2020 and (2) Denying her request to work from home in May 2020. Peifer cannot make out a prima facie case of discrimination based on the Board’s denying her request to work from home. Peifer requested the Board accommodate her in one of two ways: working from home or providing her with PPE. The Board chose the second option. Because the Board provided her the accommodation she requested (though did not prefer), Peifer cannot establish the third element of her prima facie case, and the portion of her claim related to working from home must fail. Peifer does make out a prima facie case, however, based on the Board’s denial of her requests for light duty. The District Court decided that Peifer’s claim failed on the third and fourth elements because the Board ‘did accommodate her,’ and ‘there is no evidence [the Board] treated Ms. Peifer differently than any others with similar limitations.’ We disagree with both conclusions as they concern Peifer’s light-duty requests,” Chung said.
“As to the third element, the Board repeatedly denied Peifer’s light-duty requests between March and May 2020. The Board argues that it ‘did ultimately accommodate Peifer’ – that is, when it granted her light duty two months after she asked for it. The District Court appears to have taken that same view. This is understandable given that Peifer was ultimately given the light-duty assignment she requested (though only after multiple initial denials and months of delay). We note, however, that neither the PDA nor Young’s interpretation of the PDA make an exception for employers who grant an accommodation after significant time has passed since their denial. We, therefore, decline to read that exception into the PDA as doing so would eviscerate the PDA’s purpose: Pregnancy is temporary, so if employers could deny pregnant workers accommodation for a period of months but escape liability by eventually relenting, the statute would offer very little protection. The Board did not accommodate Peifer for approximately two months; thus, Peifer makes out the third element notwithstanding the fact that the Board ultimately granted her request.”
Chung explained the Third Circuit disagreed with the District Court’s finding that there was “no evidence” that the Board treated Peifer differently than employees with similar inability to work.
“Evidence shows that the Board denied Peifer’s requested accommodation as a matter of policy solely because her inability was not caused by a work-related injury. Although the Board later reversed itself and provided Peifer with light duty, Peifer has offered evidence that it did so because of her disability, not because of her pregnancy. This sequence of events, drawing all reasonable inferences in favor of Peifer, can create a genuine dispute that the Board denied Peifer light duty solely ‘based on a discriminatory criterion illegal under’ Title VII’ and would have provided light duty to accommodate Peifer’s inabilities so long as they were caused by work-related injuries or possibly disability, rather than pregnancy. Because a reasonable jury could find that she made out a prima facie case, the burden shifts to the Board to show that it denied her light-duty requests for ‘legitimate, non-discriminatory’ reasons. If it does, then Peifer must show that its reasons ‘are in fact pre-textual.’ Because the District Court decided that Peifer did not make out a prima facie case, it did not analyze whether the Board’s proffered reasons were legitimate and non-discriminatory or whether Peifer created a genuine dispute that the Board’s non-discriminatory reason was pre-textual. We will remand so it can do so,” Chung said.
“Peifer also claims retaliation under Title VII. Under Title VII’s anti-retaliation provision, an employer may not ‘discriminate against’ an employee ‘because,’ among other things, the employee ‘has opposed any…unlawful employment practice’ or ‘made a charge’ with the EEOC. To make out a prima facie case of retaliation, therefore, a plaintiff must show that (1) ‘she engaged in a protected activity,’ (2) ‘she suffered an adverse employment action,’ and (3) ‘there was a causal connection between the participation in the protected activity and the adverse action.’ Peifer does not show a causal connection between any protected activity and an adverse employment action. Peifer argues that she engaged in protected activity when she asked for accommodations and filed EEOC charges and that she suffered adverse employment actions when the Board denied her requests and constructively discharged her. Peifer’s claim fails because she does not show that her protected activity caused the adverse actions she alleges (one of which, constructive discharge, we have already concluded is without merit). There is no evidence that the Board took any actions as retaliation for her EEOC charge; to the contrary, the Board changed its position and granted Peifer light duty soon after she filed her first charge. Similarly, the fact that the Board provided Peifer with an accommodation that she herself requested does not support an inference that it was retaliating against her. Thus, Peifer does not make out a prima facie case of retaliation and we affirm as to this claim.”
Chung concluded that the Third Circuit would affirm in part and vacate in part, and remand [to the District Court] for proceedings consistent with their opinion.
U.S. Court of Appeals for the Third Circuit case 23-1081
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-05432
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com