                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2008

Lloyd v. Washington
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2907




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"Lloyd v. Washington" (2008). 2008 Decisions. Paper 1032.
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                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                       No. 07-2907
                      ____________

                 KARL BRETT LLOYD,

                             Appellant

                            v.

       WASHINGTON & JEFFERSON COLLEGE

                                 .

                      ____________

      On Appeal from the United States District Court
         for the Western District of Pennsylvania
                  (D.C. No. 05-cv-00802)
      District Judge: Honorable Terrence F. McVerry
                       ____________

        Submitted Under Third Circuit LAR 34.1(a)
                     May 22, 2008

Before: SMITH, HARDIMAN and NYGAARD, Circuit Judges.

                  (Filed: June 11, 2008)

                      ____________

               OPINION OF THE COURT
                    ____________
HARDIMAN, Circuit Judge.

       Karl Brett Lloyd appeals an order of the District Court adopting the Magistrate

Judge’s Report and Recommendation (R&R) that summary judgment be granted in favor

of Washington & Jefferson College (College). We will affirm.

                                             I.

       As we write for the parties, we will recount only those facts essential to our

decision.

       Lloyd was an Associate Professor in the College’s Information Technology

Leadership (ITL) Department from July 1, 2002 until April 5, 2004. In April 2003, a

policy was instituted for all full-time ITL faculty requiring that “they be on campus a

minimum of four days per week, for at least four hours per day . . . .” Nevertheless,

Lloyd spent only three days per week on campus and worked from home the rest of the

week. In January 2004, Lloyd took leave under the Family Medical Leave Act (FMLA)

for certain medical problems caused by stress, such as leg pain. During that time, Lloyd

advised the College that Dr. Charles Hannon, Chair of the ITL Department, was “the

source of his physical problems.”

       Following Lloyd’s return to the College in February and his requests for additional

FMLA leave and certain accommodations under the Americans with Disabilities Act

(ADA), the College agreed to transfer Lloyd to a non-teaching position in the Information

Technology Services (ITS) Department where he could work three days per week under



                                             2
the ITS Director, Daniel Faulk. The College communicated this offer to Lloyd in a letter

which explicitly requested that Lloyd report to Faulk on April 5, 2004, at 9:00 a.m. if he

accepted the offer. After Lloyd failed to report to work in the ITS Department that day,

the College considered him to have resigned.

                                             II.

       Lloyd first argues that his “record of impairment,” as evidenced by his history of

treatment for agoraphobia and panic attacks and receipt of Social Security Disability

payments, precludes summary judgment on his ADA claims. This assertion is an

inaccurate statement of law to the extent it suggests that a record of impairment1 suffices

absent substantial limitation on a major life activity. See Kelly v. Drexel Univ., 94 F.3d

102, 108 (3d Cir. 1996) (observing that this Court cannot regard a medical impairment as

a “disability” under the ADA if it does not “substantially limit [a] relevant major life

activity”); see also Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 911 (11th Cir.

1996) (stating that a physical impairment is not enough for purposes of the ADA);


       1
         We reject Lloyd’s contention that his receipt of SSA benefits qualifies as a
“record of impairment” under the circumstances of this case. The definition of disability
under the Social Security program differs from the definition of disability under the ADA,
such that receipt of Social Security benefits does not necessarily establish that a person is
“a qualified individual with a disability” within the meaning of the ADA. Cleveland v.
Policy Management Systems Corp., 526 U.S. 795, 802-805 (1999); see also 42 U.S.C.
§ 12112(a). Accordingly, we require “[a] plaintiff attempting to prove the existence of a
‘record’ of disability [to] demonstrate that the recorded impairment is a ‘disability’ within
the meaning of the ADA.” Tice v. Centre Area Transp. Auth., 247 F.3d 506, 513 (3d Cir.
2001). Here, Lloyd has not attempted to show how his receipt of disability benefits from
the SSA is equivalent to a “record of impairment” within the ADA framework.

                                              3
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995) (explaining that “[a]

physical impairment, standing alone, is not necessarily a disability as contemplated by the

ADA”).

       Perhaps anticipating this flaw in his first argument, Lloyd claims that he is

substantially limited in his ability to think and interact with others. A substantial

limitation occurs under the ADA only if the person is “[s]ignificantly restricted as to the

condition, manner, and duration under which an individual can perform a major life

activity as compared to the condition, manner, or 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).

       The record demonstrates that Lloyd is not substantially limited in that he was able

to work and/or teach on campus three days per week, as well as serve as a councilman for

Trafford Borough, engage in family and social outings, and spend hours on weekends

working on ITS projects and course development. See Andreoli v. Gates, 482 F.3d 641,

651-52 (3d Cir. 2007) (finding that the plaintiff was not limited in the major life activities

of “thinking” and “interacting with others,” where all of the plaintiff’s activities required

“thinking, concentrating, and interacting with others.”). In sum, the only limitation — if

it can properly be classified as such — that Lloyd professed, was his inability to be on

campus more than three days per week. In her thorough and lucid R&R, the Magistrate

Judge properly concluded that, viewing the evidence in the light most favorable to Lloyd,



                                              4
no reasonable juror could find that he was substantially limited in a major life activity.

Furthermore, we agree with the R&R’s finding that if Lloyd were, in fact, substantially

limited in his ability to think and interact with others, he would not be a qualified person

with a disability. See 42 U.S.C. § 12112(a); see also Cleveland, 526 U.S. at 806. The

fact that the ability to think and interact with others are prerequisites for a college

professor should be self-evident.2

       Lloyd next argues that the College interfered with his exercise of FMLA rights by

terminating him instead of granting his request to take a medical leave of absence for the

Spring term, and genuine issues of material fact preclude summary judgment on the

question of whether he exhausted his FMLA leave. The R&R concluded that Lloyd did

not have a serious health condition that precluded him from working as an Associate

Professor. We agree with this conclusion and find that Lloyd was not eligible for FMLA

leave.3 Even so, the record is clear that Lloyd exhausted any leave to which he might

       2
        In light of this holding, we need not discuss Lloyd’s claim that the College failed
to engage in the interactive process. See Gaul v. Lucent Technologies, Inc., 134 F.3d 576,
581 (3d Cir. 1998) (because plaintiff was not a qualified individual with a disability,
defendant’s “alleged failure to investigate into reasonable accommodation is
unimportant.”).
       3
          We also conclude that Lloyd cannot show that he was prejudiced in the sense
that he lost the chance to be reinstated following an FMLA leave of absence. The
purpose of the FMLA is to assist employees “who have serious health conditions that
prevent them from working for temporary periods.” 29 U.S.C. § 2601(a)(4) (emphasis
added). An FMLA plaintiff must show that, by the time he returned from his allotted 12
weeks of FMLA leave, he would have been “able to perform the essential functions of
that position.” See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 384 (3d Cir. 2002) (citing
29 C.F.R. § 825.214(b)). Lloyd admits that he requested FMLA “leave to be followed by

                                               5
have been entitled. See 29 U.S.C. § 2612(a)(1)(D) (stating that the FMLA grants eligible

employees the right to take up to twelve work weeks of leave in any twelve-month period

if a “serious health condition . . . makes the employee unable to perform the functions of

the position of such employee.”). As noted in its brief, the College was not required to

designate Lloyd’s leave under the FMLA for it to count toward the 12 weeks allowed by

statute. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 88-89 (2002). The

College’s Director of Human Resources stated that Lloyd took 14.2 weeks of paid leave

between December 1, 2003 and April 4, 2004, which was 2.2 weeks more than he was

entitled to under law.

       Finally, Lloyd contends that he presented enough evidence to defeat summary

judgment on his discrimination and retaliation claims under the ADA, FMLA, and

Pennsylvania Human Relations Act (PHRA). To make a prima facie showing of

discrimination, Lloyd must show that, inter alia, he suffered an adverse employment

action. See Jones v. School District of Philadelphia, 198 F.3d 403 (3d Cir. 1999). Lloyd

complains that the College improperly discharged him instead of granting his request for

leave for the Spring 2004 term, to be followed by permission to return to campus only

three days per week. The record is clear, however, that the College made numerous




the implementation of the accommodation” upon his return and that he made no effort to
show that he would have been capable of returning to a full-time teaching schedule under
Hannon — both of which would have been essential conditions of the job he held in the
College’s ITL department.

                                             6
reasonable accommodations — including a temporary transfer away from Hannon in

January 2004, a schedule under Faulk which would permit him to attend his Tuesday and

Thursday doctor’s appointments in February 2004, and finally, a three-day workweek

under Faulk beginning in March 2004 — which were undertaken in good-faith to

ameliorate the stress that Lloyd experienced when he was on campus. Instead of

accepting this reasonable accommodation, Lloyd insisted upon being on campus only

three days per which, which would have been a waiver of an essential job function that

the College was not required to accept. See Donahue v. Consolidated Rail Corp., 224

F.3d 226, 232 (3d Cir. 2000). Accordingly, we find no error in the court’s dismissal of

Lloyd’s ADA, FMLA, and PHRA discrimination claims.

       We also find no error in the District Court’s rejection of Lloyd’s retaliation claims

on the ground that, assuming he had made out a prima facie case of retaliation, he could

not show that the College’s articulated non-retaliatory reasons for its actions were

pretextual. Specifically, Lloyd failed to submit specific evidence which would cause a

factfinder to either “(1) disbelieve the employer’s articulated legitimate reasons; or (2)

believe that an invidious retaliatory reason was more likely than not a motivating or

determinative cause of the employer’s action.” Keller v. Orix Credit Alliance, Inc., 130

F.3d 1101, 1108 (3d Cir. 1997) (en banc) (internal quotation marks omitted). The

evidence shows that on the eve of Lloyd’s discharge, the College offered Lloyd an

administrative position in the ITS Department three days per week. Lloyd failed to report



                                              7
to work and the College determined that he resigned. In claiming that retaliation can be

inferred from his “involuntary transfer[]” to the ITS administrative position, Lloyd

overlooks the fact that he asked to be removed from Hannon’s supervision. This transfer

accommodated that request, and also gave Lloyd a sufficiently flexible schedule to enable

him to attend his doctors’ appointments on Tuesdays and Thursdays: all without reducing

Lloyd’s salary. Thus, no rational trier of fact could find that Lloyd’s transfer was

retaliatory. See Fuentes v. Perskie, 32 F.3d 759, 765 (3d. Cir. 1994) (explaining that “the

non-moving plaintiff must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them unworthy of

credence . . . .”) (citations and internal quotations omitted).

       For all of the foregoing reasons, we will affirm the judgment of the District Court.




                                               8
