                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 18-2706
                                  _____________

                               JOSEPH H. LEWIS, JR.,
                                          Appellant

                                         v.

                       UNIVERSITY OF PENNSYLVANIA
                               _____________


                  On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          District Court No. 2-16-cv-05874
                  District Judge: The Honorable Gene E.K. Pratter

                                Argued June 26, 2019

 Before: SMITH, Chief Judge, CHAGARES, and GREENAWAY, JR., Circuit Judges

                               (Filed: August 9, 2019)



Timothy Creech (Argued)
Suite 2626
1835 Market Street
Philadelphia, PA 19103
Counsel for Appellant


Leslie M. Greenspan (Argued)
Joe H. Tucker, Jr.
Tucker Law Group
Ten Penn Center
1801 Market Street
Suite 2500
Philadelphia, PA 19103
Counsel for Appellee

                                _____________________

                                      OPINION *
                                _____________________

SMITH, Chief Judge.

       This is an employment discrimination appeal arising out of Plaintiff Joseph

Lewis’s previous employment with the University of Pennsylvania Police Department.

Lewis suffers from a skin condition, pseudofolliculitis barbae (PFB), which has led to

issues giving rise to his discrimination claims. 1 Lewis raises various issues on appeal,

challenging a number of the District Court’s pretrial, summary judgment, and trial

rulings. We will reverse the District Court’s order granting summary judgment on

Lewis’s claims of constructive discharge and discrimination under the Americans with

Disabilities Act (ADA). We will affirm all other orders challenged on appeal.


                                             I. 2

       Lewis appeals two of the District Court’s summary judgment rulings: the grant of

summary judgment in favor of Penn on Lewis’s ADA claims for (A) constructive


*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  Although Lewis raised claims of race discrimination under Title VII in the District
Court, no Title VII claims are before us on appeal.
2
  The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. This Court has
jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s grant of summary
judgment is plenary. Colwell v. Rite Aid Corp., 602 F.3d 495, 500 (3d Cir. 2010). “The
evidence of the non-movant is to be believed, and all justifiable inferences are to be
                                              2
discharge, and (B) discrimination based on (1) failure to provide a reasonable

accommodation, and (2) violation of 42 U.S.C. § 12112(d).

                                             A.

       To establish constructive discharge, plaintiffs must show both a hostile work

environment and that “the abusive working environment became so intolerable that . . .

resignation qualified as a fitting response.” Penn. State Police v. Suders, 542 U.S. 129,

133–34 (2004). The test is objective and looks to whether “a reasonable person in the

employee’s position would have felt compelled to resign.” Id. at 141. The District Court

concluded that Lewis had satisfied the hostile work environment element of constructive

discharge, but had failed to establish a genuine dispute of fact as to whether a reasonable

person would have felt compelled to resign. We disagree.

       This Court has identified various factors that support a claim of constructive

discharge, including being “threatened with discharge,” being “urge[d] . . . [to] resign or

retire,” being demoted, suffering a reduction in pay or benefits, being “involuntarily

transferred to a less desirable position,” having job responsibilities “altered,” and being

“given unsatisfactory job evaluations.” Clowes v. Allegheny Valley Hosp., 991 F.2d 1159,

1161 (3d Cir. 1993). Lewis presented evidence of a number of these adverse employment

actions in opposing summary judgment.             Among other things, Lewis’s superiors

disciplined him, altered his job responsibilities, removed him from a preferred assignment,



drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Although this case went to trial, the facts recited in this section reflect only what was
available to the District Court at the time of summary judgment.
                                              3
and threatened Lewis with discharge. This was enough to create a dispute of material fact

as to whether a reasonable person would have felt compelled to resign. See Clowes, 991

F.2d at 1161.

                                              B.

                                              1.

       Under the ADA, an employer has a duty to provide reasonable accommodations to

people with disabilities. See Colwell v. Rite Aid Corp., 602 F.3d 495, 504–05 (3d Cir.

2010). The employer can breach this duty by failing to provide an accommodation that is

reasonable or by failing to engage in a good faith interactive process to identify

accommodations. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317–18 (3d Cir. 1999).

In regard to the interactive process, this Court has explained that “if it appears that the

employee may need an accommodation but doesn’t know how to ask for it, the employer

should do what it can to help.” Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 332

(3d Cir. 2003). In short, an employee has no obligation to unilaterally identify and

propose a reasonable accommodation. See Taylor, 184 F.3d at 315–17. “[W]here there

is a genuine dispute about whether the employer acted in good faith, summary judgment

will typically be precluded.” Id. at 318.

       The District Court granted summary judgment on Lewis’s reasonable

accommodations claim based on its finding that Lewis had never expressly requested the

desired accommodation—exemption from filing medical certifications—that he alleged




                                              4
as the basis for his claim. 3 That is not the proper standard. Applying the correct legal

standard, there is a fact question as to whether Penn engaged with Lewis in good faith.

       Lewis submitted a request for accommodation, requesting to “not shave face or

neck.” Defendant’s Exhibits in Support of Motion for Summary Judgment, Exhibit CC at

2, Lewis v. Univ. of Penn., No. 16-cv-05874 (E.D. Pa. July 1, 2017) ECF No. 15-6; App.

152. Penn was then on notice of Lewis’s claimed disability and the fact that he wanted

accommodation, such that Penn had a duty to engage with Lewis in good faith. It is not

clear that Penn did so. According to Lewis, Penn issued a flat denial without making any

effort to communicate with him regarding his needs. Where there is evidence that the

employer did not act in good faith to identify an accommodation, “we will not readily

decide on summary judgment that accommodation was not possible and the employer’s

bad faith could have no effect.” Taylor, 184 F.3d at 318.

       Further, “[t]he question of whether a proposed accommodation is reasonable is a

question of fact.” Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 n.4 (3d Cir. 2006)

(quoting Buskirk v. Apollo Metals, 307 F.3d 160, 170 (3d Cir. 2002)). Even if Penn did act

in good faith, it is for the jury to decide whether permanently exempting Lewis from both

shaving and the certification requirement would have been a reasonable accommodation.

We will reverse.


3
 The District Court noted that Lewis had waived the argument, but nevertheless
addressed the merits. Regardless of whether there was initial waiver, Lewis clarified his
position in his motion for reconsideration, and the District Court had the opportunity to
address the argument—and did in fact address the substance of the argument. We will
consider the claim on appeal. See Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d
240, 249 (3d Cir. 2013).
                                             5
                                              2.

       Under 42 U.S.C. § 12112(d), “[t]he [ADA] prohibition against discrimination . . .

shall include medical examinations and inquiries.” 4 Penn’s grooming policy allows for

exemptions from the clean-shaven policy, but requires that a medical certificate be filed

every 60 days to support the exemption. In his opposition to Penn’s motion for summary

judgment, Lewis identified the 60-day certification requirement as a basis for his ADA

discrimination claim, citing § 12112(d)(4)(A).        Specifically, Lewis argued that the

certification requirement was prohibited under § 12112 because there was no legitimate

business purpose for requiring him to submit a certification every 60 days.

       The District Court did not expressly address this issue in its summary judgment

order, but in its order denying reconsideration, the Court dismissed Lewis’s claim. 5 The

Court concluded that, while the Penn policy requires certificates, “Lewis has pointed to

nothing in the record to indicate that getting a medical certificate requires repeated medical

examinations,” and as a result § 12112 did not apply. App. 40. This was error.

       Both medical examinations and inquiries are prohibited under § 12112. Even if the

certificates at issue do not require examinations, they still qualify as a form of inquiry.

Indeed, the EEOC Enforcement guidelines explain: “Disability-related inquiries may



4
  “A covered entity shall not require a medical examination and shall not make inquiries
of an employee as to whether such employee is an individual with a disability or as to the
nature or severity of the disability, unless such examination or inquiry is shown to be job-
related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).
5
  The District Court noted that Lewis had not previously raised the argument that the
certification policy violated the law, but the record indicates otherwise. Lewis plainly
raised the issue in his opposition to the motion for summary judgment.
                                              6
include . . . asking an employee to provide medical documentation regarding his/her

disability.” EEOC Enforcement Guidance on Disability-Related Inquiries and Medical

Examinations of Employees Under the Americans with Disabilities Act (ADA), July 27,

2000, available at https://www.eeoc.gov/policy/docs/guidance-inquiries.html#N_29_. 6

This definition would clearly encompass the Penn certificate requirement.

       We therefore conclude that § 12112(d)(4) applies to the Penn medical certificate

requirement.     The District Court did not address whether the requirement could be

supported by a valid business purpose. We will therefore remand for further proceedings

on this issue.

                                           C.

       Lewis requests various forms of relief upon reversal of the summary judgment

order. First, Lewis argues that he should be permitted to pursue his FMLA retaliation

claim on remand if the constructive discharge claim is reanimated. Lewis withdrew that

claim from jury consideration because he was not entitled to damages given the District

Court’s conclusion that he had voluntarily resigned. See 29 U.S.C. § 2617; Sommer v.

The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006). We have no reason to disagree

with Lewis’s position, and Penn did not oppose it. Lewis’s FMLA claim will be

reinstated.



6
  While the EEOC guidelines are not entitled to the same deference as regulations, we
give them “controlling weight unless it is plainly erroneous or inconsistent with the
regulation[s].” Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 937 (3d
Cir. 1997), abrogated on other grounds by Sutton v. United Air Lines, Inc., 527 U.S. 471
(1999).
                                            7
       Second, Lewis argues that he is entitled to a new trial on the claims that went to

trial because evidentiary rulings related to summary judgment affected his ability to

present his case. A District Court’s evidentiary rulings are reviewed for abuse of

discretion. Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 412 (3d Cir. 2002).

“An abuse of discretion arises when the District Court’s decision rests upon a clearly

erroneous finding of fact, an errant conclusion of law or an improper application of law to

fact.” Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008) (quoting In re TMI

Litig., 193 F.3d 613, 666 (3d Cir. 1999)). In reviewing evidentiary rulings, this Court

“will not disturb a trial court’s exercise of discretion unless ‘no reasonable person would

adopt the district court’s view.’” Stecyk, 295 F.3d at 412 (quoting Oddi v. Ford Motor

Co., 234 F.3d 136, 146 (3d Cir. 2000)).

       It was within the District Court’s discretion to exclude evidence it considered

irrelevant. Although evidence related to constructive discharge and ADA discrimination

may have helped Lewis’s case at trial by making him more sympathetic or otherwise, he

has not shown that the excluded evidence was relevant to the claims tried. Nor has Lewis

demonstrated actual prejudice to his ability to prove the claims tried. Further, a litigant

has no inherent right to have separate claims tried together in one case. See Williams v.

Rene, 72 F.3d 1096, 1101 (3d Cir. 1995) (“[E]ven if error as to one issue requires a new

trial, it need not include other separate points that were properly decided.”). As such,

Lewis is not entitled to a retrial on all claims. The jury’s verdict, and the District Court’s

judgment entered pursuant thereto, will stand.



                                              8
                                             II.

       Lewis challenges four other District Court rulings, which we will address in turn.

       1. Lewis appeals the District Court’s order denying his motion in limine for a

ruling that PFB is a disability as a matter of law. We exercise plenary review over legal

rulings made pursuant to an in limine order. Evankavitch v. Green Tree Servicing, LLC,

793 F.3d 355, 359–60 (3d Cir. 2015). The ADA defines a disability as: “(A) a physical

or mental impairment that substantially limits one or more major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having such an

impairment.” 42 U.S.C. § 12102. “The question of whether an individual is substantially

limited in a major life activity is a question of fact.” Williams v. Phila. Hous. Auth.

Police Dep’t, 380 F.3d 751, 763 (3d Cir. 2004), superseded by statute on other grounds,

ADA Amendments Act of 2008, Pub. L. No. 110-325, § 6, 122 Stat. 3553, 3558

(2008), as recognized in Robinson v. First State Cmty. Action Agency, 920 F.3d 182,

185 (3d Cir. 2019). Here, whether PFB qualified as a disability under the ADA

definition was a fact in dispute, the District Court was therefore correct to submit the

question to the jury.

       2. Lewis next challenges the District Court’s order granting judgment as a matter

of law in favor of Penn on Lewis’s punitive damages claims. We exercise de novo

review of an order granting a motion pursuant to Fed. R. Civ. P. 50(a). Northview

Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 88 (3d Cir. 2000). Judgment as a

matter of law “is mandated where the facts and the law will reasonably support only one

conclusion.” Id. (quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 356 (1991)).
                                              9
A claim for punitive damages in the employment discrimination context requires that an

employer act with “malice” or “reckless indifference” to a plaintiff’s federally protected

rights. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999).

       Here, Lewis failed to establish that Penn acted with malice or reckless indifference

to his rights. In fact, the record is devoid of evidence that Penn had knowledge it may be

violating Lewis’s federal rights. To the contrary, there is evidence that Penn did not

believe PFB qualified as a disability and thought the medical exemption for beards was

sufficient to address Lewis’s condition. 7 The District Court was therefore correct to

conclude that a reasonable jury would not have had a legally sufficient evidentiary basis

to find for Lewis on punitive damages.

       3. Lewis also challenges the District Court’s decision not to give a mixed-motives

jury instruction. In employment discrimination cases, the question whether a judge

properly gave a pretext instruction rather than a mixed-motives instruction is generally

reviewed de novo as a question of law. See Egan v. Del. River Port Auth., 851 F.3d 263,

269 (3d Cir. 2017). Lewis failed to establish that the District Court erred by giving a

pretext instruction instead of a mixed-motives instruction.

       Whether a case is a pretext case or mixed-motives case is a question for the trial

court at the conclusion of all the evidence. Starceski v. Westinghouse Elec. Corp., 54 F.3d

1089, 1098 (3d Cir. 1995); see also Connelly v. Lane Const. Corp., 809 F.3d 780, 788 (3d


7
  Penn also demonstrated motives other than Lewis’s PFB for the disciplinary actions
taken. Even where comments were made about Lewis needing to comply with the
grooming policy, there is no evidence that such comments were based on Lewis’s PFB,
rather than based on the perception that his beard was noncompliant.
                                            10
Cir. 2016). Lewis did not pursue a mixed-motives theory at trial. Instead, Lewis’s theory

of the case was that all of the discipline at issue was pretextual and was based only on his

having a beard. At no point did Lewis concede that he was being disciplined for

legitimate reasons.

       On appeal, Lewis points to only one piece of evidence that he argues was

sufficient to support a mixed-motives instruction: a superior’s deposition statement,

introduced at trial, that the beard was “the whole reason he was there” for disciplinary

proceedings. Appellant’s Opening Br. at 47. This further demonstrates that Lewis

pursued this case as a pretext case, rather than a mixed-motives case. We will therefore

affirm the District Court’s order denying the mixed-motives instruction.

       4. Lewis’s final claim is that the District Court erred in its sanction order

responding to attorney misconduct. The decision to impose sanctions is a matter

entrusted to the discretion of the District Court. Adams v. Ford Motor Co., 653 F.3d 299,

303 (3d Cir. 2011). The District Court was in the best position to assess counsel’s

conduct and the need for sanctions in the context of the trial as a whole. Here, the Court

opted to give “admonitions all around.” App. 415. That decision was fully within the

Court’s discretion, and did not constitute error.


                                             III.

       For the reasons set forth above, we will reverse the District Court’s judgment in

part and remand for additional proceedings on Lewis’s claims of constructive discharge,

FMLA retaliation, ADA discrimination for failure to provide a reasonable


                                             11
accommodation, and ADA discrimination based on a violation of 42 U.S.C. § 12112(d).

We will otherwise affirm.




                                         12
