                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2007

Ashton v. AT&T
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1610




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Ashton v. AT&T" (2007). 2007 Decisions. Paper 1563.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1563


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
:                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  NO. 06-1610
                          ____________________________

                                   JANE ASHTON,

                                                     Appellant

                                            v.

                        AMERICAN TELEPHONE AND
                          TELEGRAPH COMPANY
          _______________________________________________________

                 On Appeal From the United States District Court
                           for the District of New Jersey
                            (D.C. Civ. No. 03-cv-03158)
                 District Judge: Honorable Dennis M. Cavanaugh
          ______________________________________________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                February 21, 2007
            Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES

                             (Filed: February 27, 2007)
                       _________________________________

                                   OPINION
                       _________________________________
PER CURIAM

      Jane Ashton appeals from the order of the United States District Court for the

District of New Jersey granting summary judgment on her discrimination claims brought

pursuant to the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12117,

the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601-2654, the New
Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-5(e), and the Jury Service

Statute, N.J.S.A. 2B:20-17.

                                            I.

       Ashton worked in various capacities at AT&T beginning in 1997. In 2000, she

became a field service manager handling big revenue producing accounts such as

PSE&G.1 Reviews of her job performance was mixed. In 2001, she received salary

increases, two awards (for quality service and for the number of revenue generating

orders she serviced), and at least one bonus for her work. In February 2002, however, she

began to experience problems. A departing supervisor chastised her for revealing to

PSE&G that they were not her sole account and informed her that she was performing

“below target,” even though her evaluation reflected an “on target” rating. When Ashton

was called to serve on a grand jury one day a week from March to June, 2002, her new

supervisor, Patricia Jackson, voiced her displeasure, screaming at Ashton on at least one

occasion about jury duty. On another occasion, Jackson told Ashton that she thought the

amount of time required for grand jury duty was “ridiculous,” and blamed Ashton for not

getting out of it. Jackson warned Ashton that she could be her best friend or her worst

enemy. Based on these remarks from her supervisor, Ashton believed that Jackson was

blaming her personally for dutifully serving on the grand jury.

       About two weeks before she completed jury duty in June 2002, Ashton applied for


   1
    Ashton’s title is also referred to as “Customer Service Manager.” Ashton’s duties
were the same regardless of her title.

                                             2
temporary disability for acute stress disorder and generalized anxiety. The reporting

physicians indicated that Ashton’s symptoms included poor concentration, uncontrolled

shaking, crying, and increased insomnia. She was put on medication and started seeing a

therapist twice a week. She continued on temporary disability until August 4, 2002.

Through an arrangement that Jackson approved, Ashton returned to work by teleworking

full-time from home for the month of August. On her own initiative, Jackson gave

Ashton a lighter workload. Ashton had no problem completing the work assignments at

home and requested more work to do.

       In early September, on her doctor’s recommendation that she continue the current

work arrangement, Ashton e-mailed Jackson, requesting permission to telework for the

month of September. Jackson told Ashton that she could not accommodate the request

and warned Ashton that if she did not come to work in early September, Jackson would

consider Ashton’s absence as “job abandonment.” Ashton experienced increased panic

attacks and anxiety because she knew that she was unprepared emotionally to return to

the stressful work environment and because she feared losing her job. She went back on

temporary disability for the month of September. Down one team member, Jackson

asked her supervisor, Michael Klem, if she could bring another AT&T employee onto her

team. Klem approved, noting that Ashton would be moving off Jackson’s team in sixty

days in any event, because her current job “doesn’t fit her skills.2 3”


   2
     While Ashton was out on disability leave in the early fall, 2002, AT&T embarked on
a major restructuring of the post sales resources unit of the sales department. Under the

                                              3
       In mid-October, Ashton informed her new supervisor, Carol Dalina, of her plan to

take previously approved vacation from October 28 through November 1and to return to

work on November 4. A few days later, ATT&T’s disability insurance carrier, MetLife,

denied disability payments for the month of September. Based on MetLife’s report,

Dalina told Ashton that she must return to work on October 24. Ashton said that she was

afraid to drive the fifty mile round trip because of the medication she was taking and

because she might experience a panic attack while driving. Dalina asked Ashton to

provide medical documentation of her inability to drive to work. Instead, Ashton gave

Dalina notes from her therapist and doctor recommending that she continue to work at

home. Dalina allowed Ashton to telecommute on October 24. Ashton did not appear for

work on October 25.

       On October 27, Michael Klem e-mailed Ashton, telling her to report to the

Morristown, New Jersey office when she returned to work from vacation on November 4.

Ashton responded that her therapist and doctor recommended that she continue to

telework. Klem denied Ashton permission to telework any further and gave her two

alternatives. She could come to the office to discuss any other reasonable



new structure, effective October 7, 2002, Ashton was assigned to work on the second tier
of accounts, not the top revenue based accounts that she had been working on before, and
she was assigned to a different supervisor, Carol Dalina.
   3
     AT&T asserts that Ashton performed poorly on the PSE&E and Dendrite accounts.
Ashton says that her supervisors did not talk to her about her handling of the PSE&G and
Dendrite accounts and did not warn her of any other poor performance issues. The
disputed facts play no part in our decision here.

                                             4
accommodation that she might suggest or that they might arrive at together. In the

alternative, she could take sixty days paid leave to seek a position elsewhere in AT&T; if

she was unsuccessful at the end of sixty days, she would be terminated from the payroll.

Ashton took sixty days of paid leave. When Ashton failed to find another AT&T

position, AT&T terminated her employment on January 3, 2003.

       After exhausting her administrative remedies, Ashton filed a complaint in 2003,

which she later amended, 4 alleging that she was disabled by generalized anxiety,

agoraphobia, and depression, which substantially limited the major life activity of

thinking. She claimed that AT&T discriminated against her on account of her disability

when they effectively terminated her employment in January 2003 and failed to provide

reasonable accommodation by denying her the option of teleworking full-time for the

months of September and October 2002. Ashton asserted that the type of work she did

could be performed easily at home, and that other employees, including supervisors,

worked from home all of the time. She also claimed that her supervisors retaliated

against her in September and October for serving on a grand jury in the spring, 2002, and

for taking FMLA leave in the fall, 2002. She sought back wages and damages.

       AT&T moved for summary judgment, contending that Ashton was not disabled

under the ADA because she failed to provide sufficient evidence that she was impaired

and because the alleged impairment was temporary and did not substantially limit a major


   4
    Ashton retained counsel in the district court after she submitted the amended
complaint.

                                             5
life activity. AT&T asserted that Ashton failed to establish that she was handicapped

under the NJLAD because she did not submit expert medical evidence to show the

existence of a mental impairment. AT&T also argued that Ashton’s reasonable

accommodation claim failed because teleworking was not a “reasonable accommodation”

and because she refused to discuss in good faith accommodations other than teleworking.

As for the FMLA retaliation claim, AT&T contended that Ashton failed to provide any

evidence establishing that the denial of her telework request constituted an “adverse

action” for FMLA purposes or that her request was denied because she had taken medical

leave protected under the FMLA. AT&T alleged that Ashton’s claim of retaliation for

taking jury duty was time-barred under New Jersey’s Jury Service Statute.

       Ashton responded, claiming that AT&T failed to provide reasonable

accommodation under the NJLAD and ADA when it denied Ashton’s request for

extended teleworking and that AT&T retaliated against her for taking FMLA leave by

denying her permission to telework in September and October and by terminating her in

January 2003. She also argued that AT&T failed to inform her of her right to take FMLA

leave in September, 2002, in violation of the FMLA.

       The District Court granted summary judgment in AT&T’s favor on all claims. The

District Court held that the jury duty retaliation claim was time-barred and denied the

NJLAD, ADA, and FMLA claims for lack of sufficient medical evidence. The District

Court ruled that the NJLAD claims failed because Ashton did not present expert medical

testimony establishing a non-physical “handicap” as required under the NJLAD. The

                                             6
District Court determined that Ashton had to provide expert medical evidence in order to

show a “disability” under the ADA because her impairments would not be readily

apparent to the average juror. The District Court denied the FMLA claim because Ashton

failed to provide medical evidence sufficient to show that she was entitled to FMLA leave

for medical reasons. Alternatively, the District Court ruled that, even if Ashton availed

herself of a protected right under the FMLA, no causal connection existed between her

disability leave in September and October, 2002, and her eventual termination in January

2003, which was triggered by Ashton’s failure to obtain another AT&T position within

sixty days. The District Court also held that AT&T’s denial of the teleworking privilege

did not constitute an “adverse employment action” because it did not result in a

significant change in Ashton’s employment status, duties, salary, or benefits. Ashton

filed a motion for reconsideration, which the District Court denied. Ashton then filed this

timely appeal.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a District Court’s grant of summary judgment, and we apply the same standard that

the District Court should have applied. See Regents of Mercersburg Coll. v. Republic

Franklin Ins. Co., 458 F.3d 159, 163 (3d Cir. 2006)(citation omitted). Summary

judgment is proper when, viewing the evidence in the light most favorable to the non-

movant, there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. See Saldana v. KMart Corp., 260 F.3d 228, 232 (3d Cir.

                                             7
2001); FED. R. CIV. P. 56(c). We will affirm. For the reasons set forth by the District

Court, we agree that the jury service retaliation claim is time-barred and that Ashton lacks

the required expert medical evidence to support a finding of “disability” under the

NJLAD.5 Viscik v. Fowler Equipment Co., 800 A.2d 826, 834 (N.J. 2002).

       Under the ADA, unlike the NJLAD, there is no general rule that medical evidence

is always necessary to establish a disability. Marinelli v. City of Erie, 216 F.3d 354, 360

(3d Cir. 2000). We need not decide whether expert medical evidence is required in this

case. Assuming in Ashton’s favor that the medical record alone establishes an

impairment under the ADA, there is nothing in this record indicating that her impairment

substantially limited the major life activity of thinking. Under the ADA, Ashton is

“disabled”only if her impairment substantially limits a major life activity. An impairment

is “substantially limiting” if the person “is significantly restricted as to the condition(s),

manner, and duration under which she can perform a major life activity as compared to

the condition(s), manner, and duration under which an average person in the general

population can perform the same major life activity.” 29 C.F.R. § 1630.2(j)(1). Factors

to consider in evaluating whether an individual is substantially limited in a major life

activity are (i) the nature and severity of the impairment; (ii) the duration or expected


   5
      A 2003 amendment to the NJLAD statute, replaced the term “handicap” with the
term “disability.” The definition of the term as used throughout the statute, however, has
remained unchanged. See N.J. Stat. Ann. § 10:5-5 (West 2004). Therefore, the broad
interpretation of “handicap” by the New Jersey Supreme Court would be applicable to the
interpretation of the term “disability.” Clowes v. Terminix Int’l, Inc., 538 A.2d 794, 803
(citation omitted).

                                               8
duration of the impairment; and (iii) the permanent or long term impact of or resulting

from the impairment.” Id. § 1630.2(j)(2).

       A reasonable juror could conclude from the medical record that Ashton’s

impairment was temporary. In June 2002, Ashton was diagnosed with acute stress

disorder and anxiety. Her initial impairment lasted for the months of June and July.

Ashton’s relapse in September, occasioned by her supervisor’s denial of an extension of

the teleworking arrangement for that month, rendered her impaired for another month.

On October 23, 2002, in an addendum to his June report, Ashton’s psychiatrist, Dr.

Badaracco, recommended that she not return to work because she was too anxious and

her concentration was poor. Ashton’s next appointment with Dr. Badaracco was

scheduled for November 2. There are no medical reports for the months of November or

December 2002; thus, there is no evidence that Ashton was substantially limited in

performing a major life activity in November or December 2002, due to her impairment.

The record shows that Ashton’s impairment was temporary, lasting a total of three

months. Even assuming in Ashton’s favor that her impairment lasted from June through

December 2002, she cannot show that her ability to think was substantially limited on a

long-term basis rather than being of limited duration. See McDonald v. Commonwealth

of Pa., Dep’t Public Welfare, Polk Ctr., 62 F.3d 92, 95 (3d Cir. 1995) (holding that a

disability of limited duration is not considered a disability under the ADA). At best,

Ashton’s impairment appeared to be situational, triggered by her worsening relationship

with her supervisor. Moreover, there is nothing in this record to show that Ashton

                                             9
suffered negative long-term or permanent impact from her impairment. She received

mixed performance reviews before she experienced the onset of her symptoms in June

2002. She does not claim, and the record does not show, that her medications produced

side affects that negatively impact her ability to think on a long-term basis. Equally as

important, Ashton readily acknowledged that she was able to complete her work

assignments at home with no problem, indicating that she was not significantly impaired

from thinking.

       To the extent that Ashton claims that her impairment affected her ability to work,

she cannot show that her ability to work is substantially limited if she can work at home

but cannot work at the AT&T office because she experiences anxiety and stress related to

her supervisor’s treatment of her on the job site. See Weiler v. Household Finance Corp.,

101 F.3d 519 (7th Cir. 1996). In the “MetLife Behavioral Health Initial Functional

Assessment” form she completed in July 2002, Barbara Holton, Ashton’s therapist,

acknowledged that Ashton’s ability to return to work was an index of her wellness.

Holton indicated that Ashton could not perform the same job in another department or

division of AT&T “due to inherent problems with the customer base and AT&T” but that

Ashton could perform the same job at a different company. Nevertheless, she anticipated

that Ashton would be well enough to return to work at home in August and that she could

return to work in the AT&T office in September. Based on these facts, a reasonable juror

could infer that Ashton suffered no significant limitation on ability to work.

       Turning to the FMLA retaliation claim, Ashton contended that AT&T retaliated

                                             10
against her for taking disability leave on September 18, 2002, by terminating her

employment. As the District Court correctly stated, we apply the burden-shifting analysis

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Assuming

that Ashton satisfied the first two prongs of the McDonnell Douglas test, there is no

evidence on this record to show a causal connection between Ashton’s decision to take

leave in September and her eventual termination. It is undisputed that the restructuring

plan was implemented in early October, before Ashton returned from leave, and that

Ashton was assigned to a different team at that time. In mid-October, Ashton reminded

AT&T that she was taking previously approved vacation leave in the last week of October

and would be back at work on November 4, 2002. It was only after Dalina told Ashton to

come to work on October 24, that Ashton produced medical notes recommending that she

continue teleworking. She reiterated her medical providers’ recommendations for

teleworking to Michael Klem after he told her to report to the office on November 4.

Klem denied Ashton’s telework request. Although Ashton was not willing to attend a

meeting at the AT&T office to discuss other accommodations, she indicated that she was

willing to look for work elsewhere at AT&T. AT&T gave her paid leave for sixty days so

that she could look for another in-house position. When she did not find one, her

employment was terminated. A reasonable juror could conclude from the undisputed

facts in this case that Ashton’s termination was causally related to Ashton’s insistence on

working at home at her current job and her inability to procure another AT&T job, rather

than her having taken disability leave. Ashton’s claim that AT&T violated the FMLA by

                                            11
failing to notify her of her FMLA rights fails because Ashton has not shown any resulting

prejudice. See Conoshenti v. Public Service Elec. & Gas Co., 364 F.3d 135, 144 (3d Cir.

2004). There is no evidence in this record demonstrating that, had Ashton been advised

of her FMLA rights, she could have returned to work after the twelve week leave without

the accommodation of the teleworking privilege. See Rinehimer v. Cemcolift, Inc., 292

F.3d 375, 384 (3d Cir. 2002) (holding that the FMLA does not require “an employer to

provide a reasonable accommodation to an employee to facilitate his return to the same or

equivalent position at the conclusion of his medical leave”).

       Accordingly, we will AFFIRM the judgment of the district court. Ashton’s motion

for leave to file a supplemental appendix is granted. Her motion for sanctions is denied.




                                            12
