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


5-1-2007

Clarke Kurek v. N Allegheny Sch Dist
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2276




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-2276


                             ILENE I. CLARKE KUREK,

                                                 Appellant

                                           v.

                    NORTH ALLEGHENY SCHOOL DISTRICT


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 04-cv-00208)
                        District Judge: Hon. Gary L. Lancaster


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 29, 2007

            Before: RENDELL, BARRY, and CHAGARES, Circuit Judges,

                                 (Filed: May 1, 2007)



                             OPINION OF THE COURT



CHAGARES, Circuit Judge.

      In this employment discrimination appeal, plaintiff/appellant Ilene I. Clarke Kurek

(Kurek) argues that her employer, defendant/appellee North Allegheny School District
(Allegheny), failed to provide a reasonable accommodation for her disability in violation

of the Rehabilitation Act, 29 U.S.C. § 701 et seq. The District Court granted Allegheny’s

motion for summary judgment, ruling that the undisputed record demonstrated that Kurek

was not a “qualified individual” with a disability within the meaning of the Rehabilitation

Act. We agree, and will therefore affirm.

                                             I.

       The pertinent facts are undisputed and may be succinctly stated. Kurek began

teaching at Allegheny in 1993. In February 1999, Kurek stopped teaching due to the

effects of her polycystic kidney disease, which caused her to suffer chronic abdominal

pain and fatigue. In June 1999, Kurek formally retired from Allegheny, and applied for

and received retirement disability benefits from the Pennsylvania State Employee

Retirement System (PERS). This initial grant of disability benefits was for one year, and

began in September 1999. In July 2000, Kurek applied for and received an additional

year of disability benefits from PERS.

       In February 2001, Kurek returned to work at Allegheny as an English teacher, but

her kidney problems forced her to step down in April 2001. In August 2001, Kurek again

attempted to return to work at Allegheny, but could complete only one day of work.

Thereafter, Kurek again applied for and received disability retirement benefits from PERS

for a one-year term beginning December 1, 2001. Kurek twice renewed her disability

benefits in October 2002 and December 2003, respectively. Thus, between 1999 and the




                                             2
beginning of the 2004-2005 academic year, Kurek received five years worth of disability

retirement benefits. During this time, she worked as a teacher for less than 100 days.

       In May 2003, Kurek advised Allegheny that she wanted to resume teaching. To

this end, Kurek met with Allegheny’s Director of Human Resources, Robert Devlin.

Devlin advised Kurek that she would need to provide Allegheny with a doctor’s note

certifying her ability to return to work, which Kurek did. By letter dated May 12, 2003,

Kurek’s physician, Dr. Alejandro Gonzalez, stated that Kurek could return to work at

Allegheny, provided that certain accommodations were met. Dr. Gonzalez’s proposed

accommodations were: (i) that Kurek take a break between periods; (ii) that Kurek be

allowed to sit while teaching; (iii) that Kurek be assigned to teach two subjects that she

previously taught; and (iv) that Kurek be allowed to be released early from school.

       Allegheny agreed to the first three accommodations, but was unwilling to allow

Kurek to leave school early. From Allegheny’s perspective, it was imperative that

teachers work a minimum of 7-3/4 hours on site on school days in order to fulfill their

teaching and administrative responsibilities. Moreover, Allegheny maintained that from

time to time, teachers were required to work beyond this minimum in order to attend staff

and departmental meeting, parent-teacher conferences, and other school-related activities.

In an effort to accommodate Kurek, however, Allegheny offered to structure Kurek’s

schedule so that the final two periods of her workday would be for lunch and lesson

preparation, respectively, so as to give Kurek more rest and relaxation at the end of the

day. Kurek rejected this accommodation, and filed suit against Allegheny. The

                                             3
gravamen of Kurek’s claim is that working a 7-3/4 hour workday is not an essential

component of a teacher’s job at Allegheny, and that Allegheny’s insistence that she

remain on-site for the duration of the school day therefore violates the Rehabilitation Act.

In support of this claim, Kurek offered evidence to show that, at various points in time,

seven teachers were permitted to leave school premises before the end of the school day.

       The District Court disagreed with Kurek, and granted Allegheny’s motion for

summary judgment. This appeal ensued.

                                              II.

       We exercise plenary review over the District Court’s grant of summary judgment.

Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005). A grant of

summary judgment is appropriate where the moving party has established that there is no

genuine dispute of material fact and “the moving party is entitled to judgment as a matter

of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)).

To demonstrate that no material facts are in dispute, the moving party -- here, Allegheny

-- must show that the non-moving party, Kurek, has failed to establish one or more

essential elements of her case. Celotex, 477 U.S. at 323-24. When determining whether

judgment is appropriate as a matter of law, a court must view the facts in the light most

favorable to the non-moving party and make all reasonable inferences in that party’s

favor. Hugh, 418 F.3d at 267. To survive a motion for summary judgment, Kurek cannot

solely rest upon her allegations in the pleadings, but rather must set forth specific facts

such that a reasonable jury could find in her favor, thereby establishing a genuine issue of

                                              4
fact for trial. Id. While the evidence that the non-moving party presents may be either

direct or circumstantial, and need not be as great as a preponderance, the evidence must

be more than a scintilla. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).

                                             III.

       The Rehabilitation Act forbids federal employers and employers receiving federal

funding from discriminating against persons with disabilities in matters of hiring,

placement, or advancement. See Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir. 1996).1

In order for an employee to make out a prima facie case of discrimination under the

Rehabilitation Act, the employee bears the burden of demonstrating: “(1) that he or she

has a disability; (2) that he or she is otherwise qualified to perform the essential functions

of the job, with or without reasonable accommodations by the employer; and (3) that he

or she was nonetheless terminated or otherwise prevented from performing the job.” Id.

at 831. In this case, Allegheny does not dispute that Kurek has a disability, nor does it

dispute that Kurek was prevented from returning to her position as a teacher. Thus, the

only dispute between the parties is whether Kurek was “otherwise qualified to perform

the essential functions of the job.”

       EEOC regulations divide this qualification inquiry into two parts: (i) whether the

individual has the requisite skill, experience, education and other job-related requirements

of the position sought; and (ii) whether the individual, with or without reasonable


       1
         It is undisputed that Allegheny is subject to the Rehabilitation Act by virtue of the
fact it receives federal funding.

                                              5
accommodation, can perform the essential functions of that position. 29 C.F.R. §

1630.2(m).2 It is undisputed that Kurek possessed the requisite skill, experience, and

education to perform the duties as a teacher. Nonetheless, Allegheny maintains that

summary judgment was appropriate, because it is undisputed that Kurek could not work a

7-3/4 hour day. Kurek, for her part, argues that this is immaterial, and disputes

Allegheny’s assertion that working a 7-3/4 hour day is an “essential function” of being a

teacher at Allegheny. Accordingly, the dispositive issue is whether Kurek has offered

sufficient evidence from which a jury could conclude that a 7-3/4 hour workday is not an

essential function of teaching at Allegheny.

       Whether a particular duty is an “essential function” of a given job turns on whether

that duty is “fundamental” to the job. 29 C.F.R. § 1630.2(n)(1). To make this

determination, courts should look to numerous factors, including, but not limited to:

       (i) The employer’s judgment as to which functions are essential;
       (ii) Written job descriptions prepared before advertising or interviewing
       applicants for the job;
       (iii) The amount of time spent on the job performing the function;
       (iv) The consequences of not requiring the incumbent to perform the
       function;
       (v) The terms of a collective bargaining agreement;
       (vi) The work experience of past incumbents in the job; and/or
       (vii) The current work experience of incumbents in similar jobs.

Id.


       2
       While these regulations construe the Americans with Disabilities Act, “[t]he
Rehabilitation Act provides that the standards of the ADA are to be used in determining
whether the Rehabilitation Act has been violated in the employment context.” Branham
v. Snow, 392 F.3d 896, 902 (7th Cir. 2004).

                                               6
       Allegheny offers considerable evidence to show that completion of a 7-3/4 hour

workday is an essential function of a teacher’s job. To begin with, the pertinent

Collective Bargaining Agreement (CBA) makes clear that teachers “shall work where

assigned a schedule of 7-3/4 consecutive hours on site . . . .” 66A.3 Moreover, the CBA

goes on to state that the 7-3/4 hour day is only the minimum, and that from time to time,

employees “shall be required to participate in activities which extend beyond the

scheduled 7-3/4 hour day.” Id. The Teachers’ Handbook confirms this workday hourly

minimum, and states in pertinent part that “[t]he professional employee teaching day shall

consist of the duly contracted hours (currently 7-3/4 hours).” 13A. The Teachers’

Handbook also specifies that teachers who are tardy or who take unauthorized early

departure will be subject to discipline, up to and including dismissal.

       Allegheny has also offered evidence to show that there are consequences of not

having a teacher available to work a 7-3/4 hour day on a regular basis. More specifically,

Allegheny offered evidence that the unavailability of a teacher at the end of the day on a

regular basis would effectively increase other teachers’ workloads, who would have to

cover for an absent teacher in terms of supervising study halls and performing other non-




       3
        See also id. (“It is recognized that each employee is responsible for a 7-3/4 hour
day.”). Kurek argued below and again on appeal that the CBA does not mandate a 7-3/4
hour day. See Reply Br. at 5 (“Again, Appellee simply refers back to the faulty premise
that the CBA mandates a 7 3/4 hour day, which it does not.”). As the District Court
properly determined, this argument is flatly precluded by the terms of the CBA cited
above. See 14A, n.5.

                                             7
instructional duties. Finally, teacher presence on-site is essential to ensure that sufficient

staff is available should an emergency occur.

       For her part, Kurek offered no evidence to dispute that a 7-3/4 hour workday is

necessary to ensure adequate staffing and efficient operations. Rather, Kurek offered

only evidence that, from time to time, seven teachers were allowed to take early

departure, which, Kurek argues, permits the inference that a 7-3/4 workday is not an

essential function of being a teacher at Allegheny. We disagree.

       To begin with, there is no dispute that four of the teachers Kurek identified as

taking early departure are athletic coaches. It is undisputed that Allegheny policy permits

athletic coaches to leave the building early in order to attend practices and games of

school teams. Second, these early departures were not the norm; rather, they were only

occasional. Given that Kurek has offered no evidence to suggest (i) that these coaches

took early departure on anything approaching a regular basis; or (ii) that these coaches

ever took early departure for any reason other than to attend a school-sanctioned athletic

event with which they were involved, we do not find that this evidence creates a genuine

dispute of material fact about the necessity of the 7-3/4 hour workday.

       The evidence pertaining to the remaining three teachers is equally unpersuasive.

The record evidence shows that the remaining three teachers Kurek identified were

permitted to take early departure as a reward for their participation in a now-defunct

cafeteria duty program. However, the undisputed evidence also shows that Allegheny

discontinued this program in 2001 -- some two years before Kurek requested to take early

                                              8
departure -- precisely because these early departures were creating a burden for the

teachers and administrators who remained at school through the end of the day. Kurek

has offered no evidence to show (i) that any teacher has been permitted to take early

departure with regularity at any point in time since 2001; or (ii) that Allegheny’s stated

reasons for its 2001 policy change were pretextual in whole or in part. Accordingly, we

hold that Kurek’s evidence is insufficient to create a genuine dispute of material fact

regarding whether working a 7-3/4 hour workday is an “essential function” of a teacher’s

duties at Allegheny.4

                                            IV.

       For the foregoing reasons, we will affirm the decision of the District Court in all

respects.




       4
        Given our holding, we need not (and therefore do not) consider whether
Allegheny would have been entitled to summary judgment on the ground that the
alternative accommodation it proposed to Kurek was reasonable.

                                              9
