           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Khula,                              :
                          Appellant      :
                                         :
                     v.                  :
                                         :
State Correctional                       :    No. 1728 C.D. 2015
Institute-Somerset                       :    Submitted: March 11, 2016


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION BY
JUDGE COVEY                                   FILED: August 26, 2016


              John Khula (Khula) appeals from the Somerset County Common Pleas
Court’s (trial court) August 31, 2015 order granting the State Correctional Institution
at Somerset’s (SCI-Somerset) summary judgment motion (Motion) and dismissing
Khula’s first amended complaint. Khula presents two issues for this Court’s review:
(1) whether the trial court erred in concluding that Khula was not qualified to
maintain his position; and (2) whether the trial court erred in concluding that SCI-
Somerset had no obligation to engage in an interactive process with Khula or to
afford him a reasonable accommodation. After review, we affirm.
              On June 16, 1996, Khula began his employment with the
Commonwealth of Pennsylvania as an Industrial Arts and Crafts Teacher at SCI-
Houtzdale, at which time he was not required to obtain Vocational I Certification. On
June 2, 2005, Khula interviewed for a Mechanical Trades/Drafting Computer-Aided
Design position at SCI-Somerset.             At the interview, Khula signed an
acknowledgement of the Vocational Teacher Certification Requirements. On August
15, 2005, Khula accepted this new position at SCI-Somerset. Khula worked from
2005 until September 2007 without an Intern teaching certificate and evidenced no
difficulty performing his teaching responsibilities.       In 2007, the Pennsylvania
Department of Education (Department) issued Khula an Intern teaching certificate as
a provisional means of maintaining certification under a three-year license which
would expire in August 2010. During this period, although Khula completed all of
the Vocational I Certification classroom requirements, he repeatedly failed the Praxis
exam which was necessary to receive his teaching certification. Despite that each of
Khula’s annual performance evaluations from 2005 to 2010 reflected his satisfactory
job performance, he was reminded that the Vocational I Certificate was required and
that he should be working on its completion.
             On February 16, 2011, SCI-Somerset charged Khula with Failure to
Attain Vocational I Certification.      On February 25, 2011, a Pre-Disciplinary
Conference (PDC) was conducted for Khula to respond to the charge.                Khula
explained that he was having difficulty passing the Praxis exam and that he felt
something was wrong with him because he always had learning difficulties when he
was younger. He requested more time to pass the test, either in the form of an
emergency certification or simply an extension of time. SCI-Somerset held Khula’s
PDC in abeyance to give him the opportunity to re-take the test. Khula took the
Praxis exam in March 2011, but failed it again.
             Thereafter, Khula contacted the Office of Vocational Rehabilitation
(OVR) for assistance, and was scheduled with John Bixler, Ph.D. (Dr. Bixler) for
psychological testing. Another PDC was held on April 18, 2011, at which Khula
explained that he had anxiety taking the test and presented information from the OVR
regarding the tests to determine if he had a learning disability. He explained his
belief that he had a learning disability and, if that was the case, he could receive more
time from the Praxis Center to take the test. Khula once again reiterated his request
to have his job preserved while he attempted to pass the Praxis exam with
                                           2
accommodations. He was advised that only the testing center, not the institution,
could grant him an accommodation. As a result of the second PDC panel hearing,
SCI-Somerset terminated Khula’s employment in early May 2011 for failure to meet
essential statutory/regulatory teacher certification job requirements.
              On May 2, 2011, Khula received the results of Dr. Bixler’s
psychological examination, which revealed that Khula suffered from a learning
disability, Attention Deficit Hyperactivity Disorder (ADHD), that inhibited him from
passing the necessary exam without accommodation.                Khula requested and was
granted accommodations of additional time and a private/quiet room during the test
session. He re-took the Praxis exam with the accommodations, but again failed.
Khula did not subsequently re-take the exam because his unemployment rendered
him without the funds to do so.
              Khula filed a Union Grievance on May 18, 2011, alleging that he was
dismissed without just cause in violation of his collective bargaining agreement. On
June 10, 2011, the grievance was denied; however, on February 21, 2013, the Union
reached a settlement with SCI-Somerset, wherein Khula’s dismissal would be treated
as a resignation with the possibility of reinstatement if Khula passed the Praxis exam
and obtained his required certification.           See Supplemental Reproduced Record
(S.R.R.) Vol. 1 at 102-104.
              On February 27, 2013, Khula filed a complaint with the trial court
against SCI-Somerset under the Pennsylvania Human Relations Act (PHRA)1
alleging disability discrimination. On April 24, 2013, SCI-Somerset filed preliminary
objections to Khula’s complaint.2 On January 10, 2014, Khula filed his first amended
complaint     with     the    trial   court    against     SCI-Somerset       for    disability


       1
         Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.
       2
         A hearing was scheduled, but was subsequently canceled. The preliminary objections were
never ruled upon.
                                               3
discrimination/failure to accommodate. On January 28, 2014, SCI-Somerset filed an
answer to Khula’s first amended complaint. On August 5, 2015, SCI-Somerset filed
its Motion. On August 31, 2015, the trial court granted SCI-Somerset’s Motion and
dismissed Khula’s first amended complaint. On September 11, 2015, Khula filed a
Notice of Appeal with this Court.3 Also on September 11, 2015, the trial court filed
an order directing Khula to file a Statement of Errors Complained of on Appeal
(1925(b) Statement). Khula filed his 1925(b) Statement on September 24, 2015. On
November 4, 2015, the trial court filed its Pa.R.A.P. 1925(a) opinion.
               Initially, Section 5 of the PHRA provides:

               It shall be an unlawful discriminatory practice, unless
               based upon a bona fide occupational qualification. . . .
               (a) For any employer because of the . . . non-job related
               handicap or disability . . . of any individual . . . to
               discharge from employment such individual . . . if the
               individual . . . is the best able and most competent to
               perform the services required. . . .

43 P.S. § 955 (emphasis added). Further, Section 4(p.1) of the PHRA defines “the
term ‘handicap or disability,’ [as]: (1) a physical or mental impairment which

       3
          “Our scope of review from an order granting summary judgment is plenary. We will
reverse the order only where there has been an error of law or a clear abuse of discretion.” Jennison
Family Ltd. P’ship v. Montour Sch. Dist., 802 A.2d 1257, 1259-60 (Pa. Cmwlth. 2002) (citation
omitted).

               Summary judgment is properly granted ‘whenever there is no genuine
               issue of material fact as to a necessary element of the cause of action
               or defense which could be established by additional discovery or
               expert report[.]’ Pa.R.C[].P. No. 1035.2(1). Summary judgment may
               be granted only in those cases where the right is clear and free from
               doubt. The moving party has the burden of proving that there is no
               genuine issue of material fact. Furthermore, the record and any
               inferences therefrom must be viewed in the light most favorable to the
               non-moving party, and any doubt as to the existence of a genuine
               issue of material fact must be resolved against the moving party.
Laich v. Bracey, 776 A.2d 1022, 1024 (Pa. Cmwlth. 2001) (citations omitted).
                                                 4
substantially limits one or more of such person’s major life activities; (2) a record of
having such an impairment; or (3) being regarded as having such an impairment[.]”
43 P.S. § 954(p.1). In addition, under Section 1630.4(a)(1) of the Americans with
Disabilities Act (ADA) Regulations:4

               It is unlawful for a covered entity to discriminate on the
               basis of disability against a qualified individual in regard
               to:
               ....
               (ii) Hiring, upgrading, promotion, award of tenure,
               demotion, transfer, layoff, termination, right of return from
               layoff, and rehiring;
               ....
               (ix) Any other term, condition, or privilege of employment.

29 C.F.R. § 1630.4(a)(1) (emphasis added). “The term ‘qualified,’ with respect to an
individual with a disability, means that the individual satisfies the requisite skill,
experience, education and other job-related requirements of the employment
position such individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such position.”                    Section
1630.2(m) of the ADA Regulations, 29 C.F.R. § 1630.2(m) (emphasis added).
               Moreover, Pennsylvania courts have repeatedly recognized that
disability discrimination cases brought under the PHRA are interpreted in line with
the ADA. See Stultz v. Reese Bros., Inc., 835 A.2d 754 (Pa. Super. 2003); Imler v.
Hollidaysburg Am. Legion Ambulance Serv., 731 A.2d 169 (Pa. Super. 1999); Kelly
v. Drexel Univ., 94 F.3d 102 (3rd Cir. 1996). In general, both the ADA and the
PHRA prohibit a covered entity from discriminating against a “qualified individual”
because of a disability. 42 U.S.C. § 12112(a); 43 P.S. § 955.


      4
          Also referred to as the Equal Employment Opportunity Commission Regulations.
                                               5
             Finally,

             [t]he[] governing legal standards for matters of disability
             discrimination and reasonable accommodations were
             succinctly, yet comprehensively, described by the U.S.
             Court of Appeals for the Third Circuit in Taylor v.
             Phoenixville School District, 184 F.3d 296 (3d Cir. 1999).

                 [The U.S. Court of Appeals for the Third Circuit
                 has] held that in order for a plaintiff to establish a
                 prima facie case of discrimination under the ADA,
                 the plaintiff must show: (1) he is a disabled person
                 within the meaning of the ADA; (2) he is otherwise
                 qualified to perform the essential functions of the
                 job, with or without reasonable accommodations by
                 the employer; and (3) he has suffered an otherwise
                 adverse employment decision as a result of
                 discrimination.
             Id. at 306 (quotation marks omitted). Continuing, the
             [C]ourt addressed the issue of reasonable accommodations.
             ‘Discrimination under the ADA encompasses not only
             adverse actions motivated by prejudice and fear of
             disabilities, but also includes failing to make reasonable
             accommodations for a plaintiff’s disabilities.’ Id.

Allen v. State Civil Serv. Comm’n, 992 A.2d 924, 932 (Pa. Cmwlth. 2010) (emphasis
added).
             Khula first argues that the trial court erred in concluding that Khula was
not qualified to maintain his position since a Vocational I Certification was not an
essential function of his position. Particularly, Khula contends that his position was
constructed in a manner that specifically avoided the teaching certification
requirement. He further avers that the requirements for his position are not the same
as those for school teachers.
             Khula was expressly hired by SCI-Somerset as a Mechanical
Trades/Drafting Computer-Aided Design teacher.          The State Civil Service Job

                                           6
Specifications (Specifications) define the position as “professional education work in
providing vocational instruction in a mechanical trade occupation area to inmates at a
state correctional institution.”     S.R.R. Vol. 2 at 390 (emphasis added).        The
Specifications provide in pertinent part, that Khula’s position is bound by the
following “NECESSARY SPECIAL REQUIREMENT: Possession of or eligibility for a
current [Department] Vocational Certificate I or II for the specified parenthetical; or
Possession of or eligibility for a [Department] Vocational Intern Certificate for the
specified parenthetical; or Eligibility for a [Department] Emergency Certificate for
the specified parenthetical[.]” S.R.R. Vol. 2 at 391. Further, “[e]mployees who are
teaching school[-]age youth must maintain the minimum teaching certification for the
specified parenthetical as defined by the [Department’s] current regulations[,]” as a
“CONDITION OF EMPLOYMENT”. S.R.R. Vol. 2 at 391-392.
             Moreover, on June 2, 2005, Khula signed the “VOCATIONAL TEACHER
CERTIFICATION REQUIREMENTS” which reads: “My signature indicates that I have

been informed that I must obtain and maintain Pennsylvania teaching
certification for the position for which I am applying [and], if certification is not
obtained and maintained, I will be terminated since I will no longer meet the job
requirements.” S.R.R. Vol. 1 at 67 (emphasis added). The acknowledgement further
describes:

             Vocational Certification Progression
             During the first year of Department of Corrections[’]
             employment, the employee must successfully complete the
             Occupational Competency Assessment, be accepted for
             admission into a Vocational Education Teacher
             Certification Program, and apply for the Intern teaching
             certificate.
             One year after the [I]ntern teaching certificate is issued, the
             employee must have successfully completed (or be enrolled
             for) six (6) credits towards the Vocational Instructional I
             teaching certìficate.
                                           7
              Intern [teaching] certificate becomes invalid three years
              after the issue date.          The employee must meet
              requirements to apply for a Vocational Instructional I
              certificate before the intern certificate becomes invalid
              (three years after issue date). Note: This may occur during
              the fourth year of teaching, since the intern certificate is
              valid for three calendar years from issue date.

Id. (emphasis added). Finally, Khula admits in his first amended complaint that “[i]n
order to remain eligible to maintain his position of employment, [] Khula was
required to complete specific educational requirements and pass a Praxis exam to
obtain certification.” Khula’s First Amended Complaint at ¶ 5.
              Because Khula has always known that the Vocational I Certification was
required for his continued employment, but he did not earn the Vocational I
Certification, he failed to satisfy the job-related requirement to maintain his
employment with SCI-Somerset. Khula focuses on the condition of employment with
school-age students, claiming this is the difference between teaching at a school
district and teaching at a corrections facility.5                 However, Khula’s signed
acknowledgement makes no mention of his students’ ages, but rather expressly states
his employment will be terminated if he did not obtain the Vocational I Certification.
It was on this basis that Khula’s employment was terminated, and not “a prejudice
[or] fear of disabilities[.]” Allen, 992 A.2d at 932 (quoting Taylor, 184 F.3d at 306).


       5
          The Dissent focuses on Khula’s school-age students argument, specifically stating:
“Because Khula does not teach students under 21 years of age, he is not required to obtain
Vocational I Certification.” Dissenting Op. at 1. However, the Dissent ignores the fact that the
State Civil Service Job Specifications require Vocational I Certification, Claimant’s signed
acknowledgement of said requirement, and Khula’s admission in his first amended complaint that
the Vocational I Certification was in fact a job-related requirement. See S.R.R. Vol. 2 at 391,
S.R.R. Vol. 1 at 67, Khula’s First Amended Complaint at ¶ 5. This Court has no authority to ignore
or in any manner rewrite the State Civil Service Job Specifications. Thus, in accordance with well-
established law, the trial court properly determined that Khula was not qualified to maintain his
position.



                                                8
Thus, we discern no error in the trial court’s conclusion that Khula was not qualified
to perform his position because he did not obtain his Vocational I Certification as it
was a “job-related requirement[] of [his] position.” 29 C.F.R. § 1630.2(m).
            Khula next asserts that the trial court erred in concluding that SCI-
Somerset had no obligation to engage in the interactive process or to afford him a
reasonable accommodation such as “SCI-Somerset maintaining [] Khula’s job and
communicating with [the State] Civil Service [Commission] to determine if an
extension or a waiver could be obtained.” Khula Br. at 13.
            This Court has held:

            Once [an employee] inform[s] [an employer] of [his]
            need for a reasonable accommodation, . . . it then ha[s]
            the obligation to initiate an interactive process to
            determine whether [he] may [be] able to perform the
            essential functions of [his] job with reasonable
            accommodation. It is within this interactive process that a
            court must isolate the cause of the breakdown and then
            assign responsibility. In assigning responsibility for a
            breakdown in the interactive process, ‘courts should look
            for signs of failure to participate in good faith or failure
            by one of the parties to help the other party determine
            what specific accommodations are necessary.’ Taylor,
            184 F.3d at 312. The Taylor [C]ourt went on to note that,
            ‘[o]nce the employer knows of the disability and the
            employee’s desire for accommodations, it makes sense to
            place the burden on the employer to request additional
            information that the employer believes it needs.’ Id. at 315.
            The [C]ourt stated:
                [t]he interactive process, as its name implies,
                requires the employer to take some initiative . . . [.]
                The interactive process would have little meaning if
                it was interpreted to allow employers, in the face of
                a request for accommodation, simply to sit back
                passively, offer nothing, and then, in post-
                termination litigation, try to knock down every
                specific accommodation as too burdensome. That’s
                not the proactive process intended: it does not help
                avoid litigation by bringing the parties to a

                                          9
                 negotiated settlement, and it unfairly exploits the
                 employee’s comparative lack of information about
                 what accommodations the employer might allow.
             Id. at 315-16.

Canteen Corp. v. Pa. Human Relations Comm’n, 814 A.2d 805, 813 (Pa. Cmwlth.
2003) (citation and footnote omitted; emphasis added).
             Importantly, although Khula was aware of the Vocational I Certification
requirement as of the date of his initial job interview, June 2, 2005, it was not until
“February 25, 2011 [at his first PDC] and again on or about April 18, 2011, [at his
second PDC] [that] [] Khula made his supervisors aware of his [potential] disability
and his [possible] need for an accommodation to complete the Praxis [exam]
successfully.”   Khula’s First Amended Complaint at ¶ 10. “In order to pass the
[Praxis] exam, [] Khula requires the reasonable accommodation of a private room and
additional time to take the test.” Khula’s First Amended Complaint at ¶ 8. As the
trial court properly stated, this was “an accommodation which [SCI-Somerset] could
not offer.” Trial Ct. Op. at 7. Khula admitted at his deposition that the Indiana
University of Pennsylvania and the Praxis Center administered the Praxis exam and
that SCI-Somerset had no involvement with the Praxis exam.               See Reproduced
Record (R.R.) Vol. II at 180a-181a. Moreover, Khula did take the Praxis exam with
the requested accommodations, albeit after his discharge, and still did not pass.
             Thus, SCI-Somerset did not “fail[] to participate in good faith or fail[]. . .
to help [Khula] determine what specific accommodations [were] necessary.”
Canteen Corp., 814 A.2d at 813 (quoting Taylor, 184 F.3d at 312). Indeed, before
Khula’s ADHD was diagnosed and he asked for the specific test-taking
accommodation, i.e., extra time and a private room, SCI-Somerset held the first PDC
in abeyance, so that Khula could re-take the Praxis exam for the sixth time in March




                                           10
2011.6 See R.R. Vol. II at 209a-210a. Because SCI-Somerset had no control over the
requested accommodation, and Khula had in fact received the requested
accommodations, the trial court did not err in concluding that SCI-Somerset had no
obligation to engage in the interactive process or provide the reasonable
accommodation.
              For all of the above reasons, the trial court’s order is affirmed.


                                           ___________________________
                                           ANNE E. COVEY, Judge




       6
         Khula’s claim that SCI-Somerset should have given Khula an indefinite amount of time to
receive a test-taking accommodation in order to pass the Praxis exam is disingenuous since, under
the terms of his Union settlement, Khula was entitled to reinstatement if and when he passed the
Praxis exam and, even with the accommodations, he failed it.
                                               11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Khula,                             :
                          Appellant     :
                                        :
                     v.                 :
                                        :
State Correctional                      :   No. 1728 C.D. 2015
Institute-Somerset                      :


                                      ORDER

              AND NOW, this 26th day of August, 2016, the Somerset County
Common Pleas Court’s August 31, 2015 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Khula,                            :
                                       : No. 1728 C.D. 2015
                           Appellant   : Submitted: March 11, 2016
                                       :
                     v.                :
                                       :
State Correctional                     :
Institute-Somerset                     :



BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


DISSENTING OPINION
BY SENIOR JUDGE FRIEDMAN                             FILED: August 26, 2016


              Because Khula does not teach students under 21 years of age, he is not
required to obtain Vocational I Certification. Therefore, I would conclude that the
trial court erred in determining that Khula was not qualified to maintain his position.
Accordingly, I respectfully dissent.


              Khula has worked in his current position at SCI-Somerset as a vocational
teacher in Mechanical Trades/Drafting Computer-Aided Design since August 2005.
Khula has consistently received commendable and satisfactory ratings in his job
performance evaluations.


              The State Civil Service Job Specifications (Specifications) for Khula’s
position provide that “[e]mployees who are teaching school[-]age youth must
maintain the minimum teaching certification . . . as a condition of employment.”
(S.R.R. at 391-92.) This Specification is consistent with section 912-B(b)(1) of The
Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, added by
the Act of June 22, 1999, P.L. 99 (Act 15), 71 P.S. §310-12(b)(1), which provides
that “[e]mployes who provide inmate education and training to school-age inmates
shall hold appropriate State certification as required by Federal and State law.”1
(Emphasis added.)


              Khula, however, does not teach students under 21 years of age. (R.R. at
206a.) As stated in the Proposed Education Plan for the 2010-2011 year, “no student
under twenty-one years of age should be placed in a vocational program.” (Ex. 3 at
23; S.R.R. at 342.) Steven Davy, Director of the Bureau of Correction Education for
the Department of Corrections, testified that the age requirement “was to make sure
that any student that would be assigned to a vocational program was no longer
covered by either the special education law or the regular education law.” (R.R. at
237a.) Davy specifically acknowledged that Act 15 does not apply to vocational
teachers. (Id.) Thus, because Khula is a vocational teacher who does not teach
anyone under the age of 21, a Vocational I Certification is not required.




       1
          “There are two classifications in which school age applies. One is for regular education
and that is the age of 18 or younger. Where special education is concerned, it is age 21.” (R.R. at
235a.)




                                            RSF - 2 -
               Section 5 of the Pennsylvania Human Relations Act2 provides:

               It shall be an unlawful discriminatory practice, unless based
               upon a bona fide occupational qualification . . . .

               (a) For any employer because of the . . . non-job related
               handicap or disability . . . of any individual . . . to discharge
               from employment such individual . . . if the individual . . . is
               the best able and most competent to perform the services
               required.


43 P.S. §955.


               Additionally, section 1630.4(a)(1) of the Americans with Disabilities
Act regulations provides:

               It is unlawful for a covered entity to discriminate on the
               basis of disability against a qualified individual in regard to:

                                                ...

               (ii) Hiring, upgrading, promotion, award of tenure,
               demotion, transfer, layoff, termination, right of return from
               layoff, and rehiring;
                                                ...
               (ix) Any other term, condition, or privilege of employment.


29 C.F.R. §1630.4(a)(1). “The term ‘qualified,’ with respect to an individual with a
disability, means that the individual satisfies the requisite skill, experience, education
and other job-related requirements of the employment position such individual holds


      2
          Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §955.



                                            RSF - 3 -
or desires and, with or without reasonable accommodation, can perform the essential
functions of such position.” 29 C.F.R. §1630.2(m).


            “Removal of personnel in the civil service must be based on merit
criteria which are relevant to proper execution of the employee’s duties and which are
job-related and touch in some logical and rational manner upon competency and
ability.” Borough of Blawnox Council v. Olszewski, 477 A.2d 1322, 1326 (Pa. 1984).
Although Khula signed a form acknowledging his need to obtain Vocational I
Certification, the Specifications do not require Khula to obtain Vocational I
Certification because he does not teach students under the age of 21. Khula has
demonstrated his competency and ability to perform his duties as a vocational teacher
since 2005. I question the dismissal of an employee who has a proven teaching
record and who has completed an 18-credit program necessary for Vocational I
Certification but who, because of a learning disability, is unable to pass the Praxis
exam necessary to complete the certification.


            Neither the Specifications nor Act 15 require Vocational I Certification
for a vocational teacher such as Khula who instructs students over the age of 21.
Because Khula is qualified to maintain his position, I would reverse the trial court’s
order granting SCI-Somerset’s motion for summary judgment.




                                         ___________________________________
                                         ROCHELLE S. FRIEDMAN, Senior Judge




                                      RSF - 4 -
