J-S24016-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DELTHEIA JARMON                               IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellant

                        v.

    THE CONVENT OF THE SISTERS OF
    ST      JOSEPH   VILLA   D/B/A
    ST. JOSEPH VILLA

                             Appellee                No. 3301 EDA 2019


                 Appeal from the Order Entered October 8, 2019
              In the Court of Common Pleas of Montgomery County
                      Civil Division at No.: No. 2017-18288


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 11, 2020

        Appellant Deltheia Jarmon appeals from the October 8, 2019 order of

the Court of Common Pleas of Montgomery County (“trial court”), which

granted the motion for summary judgment of Appellee, The Convent of the

Sisters of St. Joseph Villa d/b/a St. Joseph Villa, and dismissed Appellant’s

disability discrimination claim under the Pennsylvania Human Relations Act

(“PHRA”), 43 P.S. § 951 et seq. Upon review, we affirm.

     The facts and procedural history of this case are undisputed.1 On February

6, 2009, Appellee hired Appellant as a part-time certified nursing assistant


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 Unless otherwise specified, these facts come from the trial court’s January
3, 2020 opinion. See Trial Court Opinion, 1/3/20, at 1-5.
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(“CNA”). The physical demands of the CNA job position included, but were

not limited to the following:

      Heavy to moderate physical effort

          o Lift/carry up to 50 lbs

      Balance of sedentary/mobility work

          o Frequent kneeling/stooping/crouching/reaching/bending

          o Frequently moves/lifts/ supplies or equipment

          o Frequently transfers and repositions residents

At all times relevant hereto, these physical demands remained unchanged,

and Appellant was aware of these requirements for her job. Appellee also

employed individuals as medication technicians: a hybrid position that

requires the employee to perform all of the tasks of a CNA with the added

responsibility of distributing medications under the guidance of a nurse.

       During Appellant’s employment with Appellee, Appellant was given an

employee handbook, which she acknowledged receiving and understanding.

In the handbook, the Family Medical Leave Act (“FMLA”) policy provided that:

       An eligible employee can request and receive up to 12 work weeks
       of unpaid leave (either taken in blocks of time or intermittently)
       during any rolling 12 -month period, measured backward from
       when the FML is sought to be taken, for one or more of the
       following reasons . . . [b]ecause of a serious health condition that
       makes the employee unable to perform the functions of the
       position of such employee.




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Reproduced Record (R.R.) at 93a. Appellee’s employment handbook also set

forth its leave of absence policy (“LOA policy”) which was in effect during

Appellant’s employment. The LOA policy provides in pertinent part:

      A Leave of Absence is unpaid and can last for up to 3 months. If
      necessary, after three months’ time, the employee may request
      an extension, for up to an additional three months.         Any
      combination of Family and Medical Leave and Leave of Absence
      may not exceed 6 months unless authorized by Administration.

      At the conclusion of the leave period, an employee who has been
      absent due to illness or disability must submit a physician’s
      certification that he/she can return to work, full duty.

      Efforts will be made to maintain the employee’s position, when
      possible. Due to [St. Joseph Villa’s] needs and available personnel
      there can be no guarantee that the same position will be available
      upon return to work.

Id. at 94a.     On May 8, 2014, Appellant was absent from work and

subsequently submitted a doctor’s note from Drexel University College of

Medicine that stated that Appellant needed to be excused from work until May

31, 2014.   On May 9, 2014, the Human Resources (“HR”) Department of

Appellee provided Appellant with the appropriate FMLA forms to apply for

FMLA qualifying leave of absence.     On May 15, 2014, Appellant provided

Appellee with the FMLA Certification of Healthcare Provider signed by

Appellant’s healthcare provider. This form certified that Appellant was unable

to perform any job function due to her health condition and would not return

to work until May 31, 2014.

      On May 31, 2014, Appellant did not return to work as estimated by her

doctor. Appellee received a doctor’s note from Appellant on June 16, 2014,


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stating that Appellant still was incapacitated until July 31, 2014.   Appellee

extended Appellant’s leave to the maximum allowable under the FMLA at

twelve weeks or until approximately July 31, 2014. On July 31, 2014, the end

of Appellant’s FMLA leave, Appellant did not return to work. On August 12,

2014, Appellee’s HR Department contacted Appellant and informed her that in

light of the expiration of her FMLA leave, Appellant could apply for a personal

leave of absence to extend her leave of absence by the maximum allowable

extension, an additional three months.      That same day, Appellee provided

Appellant with an LOA request form; this form was signed by Appellant and

returned to Appellee on August 14, 2014. The LOA form provided in relevant

part:

        Due to [St. Joseph Villa’s] needs and available personnel there
        can be no guarantee that the same position, or any position, will
        be available when I am able to return to work.

        I also realize that failure to report to Human Resource and/or my
        Department Head prior to, or on my schedule date of return will
        result in immediate termination of my employment at Saint
        Joseph Villa.

R.R. at 115a.    On October 27, 2014, Appellee’s HR Department contacted

Appellant to inform her that Appellant’s maximum leave of absence of six

months was due to expire in the coming week. Appellant was not able to

return to work and did not provide Appellee with an estimated return to work

date.    Furthermore, Appellant failed to provide Appellee with any medical

documentation that cleared her to return to work in any capacity. On March

31, 2015, more than ten months after Appellant ceased to come to work and


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five months after Appellant’s personal leave of absence expired, Appellant was

removed from Appellee’s active employee list.

      On July 14, 2017, Appellant initiated the instant civil action against

Appellee.   On October 3, 2017, Appellant filed the “Second Amended

Complaint,” asserting a single claim for disability discrimination under the

PHRA.   On October 20, 2017, Appellee filed an answer and new matter.

Following the close of discovery, on June 24, 2019, Appellee moved for

summary judgment, alleging, inter alia, that Appellant could not establish a

prima facie case for disability discrimination under the PHRA.        Appellant

responded, objecting to Appellee’s motion for summary judgment. Following

a hearing, the trial court granted Appellee’s motion for summary judgment.

Appellant timely appealed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      On appeal, Appellant presents five issues for our review:

      [I.] Whether the trial court erred in granting summary judgment
      against [Appellant].

      [II.] Whether the trial court erred that there is no material issue
      of fact as to whether Appellee violated the [PHRA] by failing to
      provide [Appellant] an extended leave as a reasonable
      accommodation for her disability.

      [III.] Whether the trial court erred [in] finding that there was no
      disputed material issue of fact that [Appellee’s] termination of
      [Appellant’s] employment violated the [PHRA].

      [IV.] Whether the trial court erred [in] finding that [Appellant]
      failed to establish a prima facie claim of disability discrimination
      under the [PHRA].



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       [V.] Whether the trial court erred in finding as a matter of law that
       [Appellee’s] termination of [Appellant’s] employment was based
       upon a legitimate non-discriminatory business reason.

Appellant’s Brief at 5-6 (unnecessary capitalization omitted).          Although

Appellant raises five issues, they can be distilled to three.2 First, combining

her first, third and fourth issues, we address whether the trial court erred in

concluding that she failed to establish a prima facie claim for disability

discrimination under the PHRA. Second, we address Appellant’s claim that the

trial court erred in failing to conclude that Appellee denied her reasonable

accommodation.        Third, and offered in the alternative, we address the

Appellant’s argument that the trial court erred in concluding that Appellee had

a legitimate non-discriminatory reason for terminating her employment.

       We review a challenge to the entry of summary judgment as follows:

       [We] may disturb the order of the trial court only where it is
       established that the court committed an error of law or abused its
       discretion. As with all questions of law, our review is plenary.

       In evaluating the trial court’s decision to enter summary
       judgment, we focus on the legal standard articulated in the
       summary judgment rule. See Pa.R.C.P. No. 1035.2. The rule
       [provides] that where there is no genuine issue of material fact
       and the moving party is entitled to relief as a matter of law,
       summary judgment may be entered. Where the nonmoving
       party bears the burden of proof on an issue, he may not
       merely rely on his pleadings or answers in order to survive
       summary judgment. Failure of a non-moving party to
       adduce sufficient evidence on an issue essential to his case
       and on which he bears the burden of proof establishes the
       entitlement of the moving party to judgment as a matter of
       law. Lastly, we will review the record in the light most favorable
____________________________________________


2Indeed, in the argument section of her brief, Appellant seemingly focuses
only on the three issues that we have identified herein.

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J-S24016-20


       to the nonmoving party, and all doubts as to the existence of a
       genuine issue of material fact must be resolved against the
       moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted; brackets in original) (emphasis added).

       After careful review of the record and the relevant case law, we conclude

that the trial court accurately and thoroughly addressed the merits of

Appellant’s claims. See Trial Court Opinion, 1/3/20, at 6-14. Viewing the

record in the light most favorable to Appellant, as the nonmoving party, and

resolving all doubts as to the existence of a genuine issue of material fact

against Appellee, as the moving party, we conclude that the trial court did not

err in granting Appellee’s motion for summary judgment.

       With respect to the issue of whether Appellant established a prima facie

case for disability discrimination, we are constrained to agree with the trial

court’s conclusion. She failed to set forth a disability discrimination claim.

       In the absence of direct evidence, a claim of disability discrimination

under the PHRA may be analyzed under the three-part, burden-shifting

framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973),3 Canal Side Care Manor, LLC v. Pa. Human Relations
____________________________________________


3 “It is now axiomatic that the familiar analytical framework first pronounced
in McDonnell Douglas . . . for resolution of suits brought under Title VII [of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17] also guides an
analysis of claims brought under the [Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. §§ 12101-12213].” Olson v. Gen. Elec. Astrospace, 101
F.3d 947, 951 (3d Cir. 1996). “[T]he same legal standard that applies to the
ADA applies equally to disability discrimination claims under the PHRA.”



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Comm’n, 30 A.3d 568, 570, 573 (Pa. Cmwlth. 2011).4 Under this framework,

a plaintiff bears the initial burden of establishing a prima facie case by a

preponderance of the evidence. Id. at 573 n.7 (citing McDonnell Douglas).

Once a prima facie case is presented, the burden shifts to the employer to

articulate some legitimate non-discriminatory reason for the adverse

employment action. Id. If the employer does so, the burden then shifts back

to the plaintiff to prove by a preponderance of the evidence that the articulated

reason was merely pretext for discrimination. Id. However, “[t]hough the

burden of production shifts between the parties, ‘the . . . plaintiff at all times

bears the ultimate burden of persuasion.’”       Sorgini v. Wissahickon Sch.

Dist., 274 F. Supp. 3d 291, 296 (E.D. Pa. 2017) (quoting St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 511, (1993) (internal quotation marks omitted)).

       A plaintiff establishes a prima facie case of disability discrimination

under the PHRA by demonstrating: “(1) that he or she is a disabled person
____________________________________________


Colwell v. Rite Aid Corp., 602 F.3d 495, 499 n.3 (3d Cir. 2010); see also
Imler v. Hollidaysburg Am. Legion Ambulance Serv., 731 A.2d 169, 173
(Pa. Super. 1999) (noting that “[t]he PHRA and ADA are interpreted in a co-
extensive manner[,] ... because the PHRA and ADA deal with similar subject
matter and are grounded on similar legislative goals”). Indeed, “[i]n general,
we analyze PHRA claims by using the same standards as analogous federal
statutes.    Further, we look to federal court decisions to inform our
interpretations of the PHRA, although such decisions are not binding on our
court.” Renna v. PPL Electric Utilities, Inc., 207 A.3d 355, 367 n.16 (Pa.
Super. 2019) (citations omitted).
4“This Court is not bound by decisions of the Commonwealth Court. However,
such decisions provide persuasive authority, and we may turn to our
colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010) (citation
omitted), appeal denied, 12 A.3d 371 (Pa. 2010).

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within the meaning of the [PHRA];(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 has suffered an

otherwise adverse employment decision as a result of discrimination.”

Canteen Corp. v. Pa. Human Relations Comm’n, 814 A.2d 805, 811 (Pa.

Cmwlth. 2003). At issue here is the second element. The burden is on the

plaintiff to prove that she is an otherwise qualified individual by means of a

two-part test.   Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir.

1998). A court must consider “(1) whether the individual has the requisite

skill, experience, education and other job-related requirements of the position

sought, and (2) whether the individual, with or without reasonable

accommodation, can perform the essential functions of that position.” Turner

v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006) (citing 29

C.F.R. pt. 1630.2(n)).    “The purpose of the second step is to ensure that

individuals with disabilities who can perform the essential functions of the

position held or desired are not denied employment opportunities because

they are not able to perform marginal functions of the position.” Lombardo

v. Air Prod. & Chemicals, Inc., 2006 WL 1892677, at *10 (E.D. Pa filed July

7, 2006).

      Instantly, we agree with the trial court’s analysis.          As the court

explained:

      Appellant provided no evidence that she has a disability that does
      not substantially interfere with her ability to do the job of a CNA.
      It has been well settled in Pennsylvania, that in order for a plaintiff

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       to recover under the PHRA, he or she must be able to demonstrate
       that they are able to perform the essential job functions of the
       job. Imler, 731 A.3d at 173. In the instant action, apart from
       her own testimony that she could perform the essential functions
       of a CNA, Appellant failed to provide Appellee with any
       documentation that medically cleared her to perform the physical
       demand requirements of the position. Appellant asserts that,
       even if she was unable to perform the essential job duties like
       transferring and repositioning residents, there were other floors
       within Appellee’s institution that did not require her to perform
       tasks that required her to meet such physical demands. However,
       an employer is not required to modify or eliminate an essential
       function of a job to accommodate its disabled employee. Walton
       v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 671 (3d Cir.
       1999). Therefore, Appellant’s assertion that she is a qualified
       individual with a disability pursuant to the PHRA could not be
       accepted by the trial court.

Trial Court Opinion, 1/3/20, at 8-9 (footnote omitted). Accordingly, Appellant

is not entitled to relief because she fails to establish a prima facie case for

disability discrimination.

       Next, Appellant’s claim that the trial court erred in failing to conclude

that Appellee denied her reasonable accommodation fails for two reasons.5

First, because she failed to assert this claim in her complaint. See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”). Second, assuming that she had, she “did not

____________________________________________


5 To prevail on a failure to accommodate claim, a plaintiff must prove: (1) the
employer had knowledge of the employee’s disability; (2) the employee
requested accommodations or assistance for her disability; (3) the
employer did not make a good faith effort to assist the employee in seeking
such accommodations or assistance; and (4) the employee could have been
reasonably accommodated but for the employer's lack of good faith. Capps
v. Mondelez Glob., LLC, 847 F.3d 144, 157 (3d Cir. 2017) (emphasis
added); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319-20 (3d Cir.
1999).

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request a reasonable accommodation,” based on the record before us. Trial

Court Opinion, 1/3/20, at 9. At her deposition, she explicitly admitted that

she failed to request an accommodation associated with her disability. See

N.T. Deposition (Jarmon), 2/6/19, at 47, 60. Accordingly, Appellant obtains

no relief.

      Finally, based upon our conclusion that Appellant failed to establish a

prima facie case for disability discrimination, we need not address her last

claim that the trial court erred in determining that Appellee had a legitimate

non-discriminatory reason for terminating her employment. Even assuming

Appellant’s established a prima facie case for disability discrimination claim,

she still would not be entitled to relief.    As the trial court found, Appellee

offered a legitimate non-discriminatory reason for terminating Appellant’s

employment and Appellant failed to establish that Appellee’s reason was

merely a pretext for discrimination. Trial Court Opinion, 1/3/20, at 11-14.

The trial court noted that the evidence clearly showed that Appellant “failed

to provide medical documentation stating her ability to return to work as

required under Appellee’s LOA policy and other applicable employment

practices and procedures. Due to these reasons Appellant was removed from

the active employee list.” Id. at 11.

      In sum, we conclude that the trial court did not err in granting Appellee’s

motion for summary judgment as a matter of law where (1) Appellant failed

to establish a prima facie case for disability discrimination under the PHRA,

(2) Appellant admitted that she did not request reasonable accommodation

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and otherwise did not assert a claim for reasonable accommodation in her

complaint; and (3), assuming Appellant established a prima facie case for

disability discrimination, Appellee had a legitimate non-discriminatory reason

for terminating her employment.      Accordingly, we affirm the trial court’s

October 8, 2019 order.    We further direct that a copy of the trial court’s

January 3, 2020 opinion be attached to any future filings in this case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




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