                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-2009

Paula Pagonakis v. Express LLC
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1753




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-1753


                                 PAULA PAGONAKIS,

                                             Appellant

                                             v.

                                    EXPRESS LLC,
                           also known as Limited Brands, Inc.


                    Appeal from the Judgment of the District Court
                              for the District of Delaware
                       (District Court Civil Action No. 06-027)


                                Argued February 3, 2009

 Before: McKEE, STAPLETON, Circuit Judges, and IRENAS,* Senior District Judge.

                                 (Filed : March 5, 2009)


Jason H. Ehrenberg, Esq. (Argued)
Bailey & Ehrenberg PLLC
1155 Connecticut Avenue, NW
Suite 1100
Washington, DC 20036
Counsel for Appellant



   *
    The Honorable Joseph E. Irenas, Senior United States District Judge for the District
of New Jersey, sitting by designation.
Andrew C. Smith, Esq. (Argued)
David A. Campbell, Esq.
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
P.O. Box 1008
Columbus, OH 43216-0000

Francis G.X. Pileggi, Esq.
Sheldon K. Rennie, Esq.
Fox Rothschild LLP
One Citizens Bank Center, Suite 1300
919 N. Market Street, P.O. Box 2323
Wilmington, DE 19899
Counsel for Appellee




                                       OPINION


IRENAS, Senior United States District Judge.

      Appellant Paula Pagonakis, a former employee of Appellee Express LLC, appeals

the District Court’s decision granting summary judgment to Express on her employment

discrimination and retaliation claims under the Americans with Disabilities Act (ADA),

42 U.S.C. § 12101 et seq., and her retaliation claim under the Family Medical Leave Act

(FMLA), 29 U.S.C. § 2601 et seq. Because disputed issues of material fact exist as to

whether Pagonakis could perform the essential functions of her position, and whether she

suffered an adverse employment action, we will reverse the grant of summary judgment

and remand the case as to the ADA discrimination claim. We will affirm the grant of

summary judgment on the retaliation claims.


                                           2
                                             I.

       Pagonakis’ claims arise out of her employment at the Express clothing store in the

Christiana Mall in Newark, Delaware, from June 2000 through March 2004. She began

as a part-time salesperson there, after she transferred from another Express store in Ohio,

where she was also a part-time salesperson. According to Pagonakis, upon her transfer,

she “discussed” her medical conditions1 with the Christiana Store Manager, Kristyn

Bosley (Pagonakis’ immediate supervisor), and the District Manager, Ana Klancic, who

also had supervisory authority over Pagonakis. (JA 296) Express disputes that

Pagonakis told management about her specific impairments. They assert that she only

asked for certain accommodations. It is undisputed, however, that Klancic allowed

Pagonakis the requested accommodations which were: periodic breaks during a shift to

allow Pagonakis to rest; scheduling Pagonakis on daylight shifts only (she cannot drive

when it is dark or when it is raining, snowing or foggy); not assigning her to climbing

tasks; not scheduling her to work for more than three to four days in a row; and

periodically allowing her to work from home to compensate for the times when she could

not drive to work due to weather.

   1
       Several years prior to Pagonakis’ employment with Express, she suffered a closed
head injury during a car accident. As a result of this injury, she allegedly suffers from
“persistent vertigo,” and at times becomes disoriented or “lose[s] [] equilibrium” when
exposed to bright or moving lights. (JA 294) She also claims to have trouble reading and
processing auditory stimuli, and suffers from fibromialgia. Though Express disputes
these assertions, they did not move for summary judgment on the issue of Pagonakis’
disability, and therefore it may be assumed that Pagonakis is “disabled” under the ADA,
see 29 C.F.R. § 1630.2(g), for the purposes of this appeal.
                                             3
       In March 2002, Klancic promoted Pagonakis to the full-time, salaried position of

Brand Sales Leader, which is described as a “quasi-managerial position.” (JA 296)

After this promotion, Pagonakis asserts that various “store personnel” began making

“off-hand[] comments” “about [her] disabilities and about their view that [she] was not

‘management material’ because of [her] disabilities.” (JA 296) Pagonakis states that she

complained to Klancic about the comments, and that Klancic advised Pagonakis to avoid

the people making the comments. It is undisputed that Pagonakis’ accommodations

remained in place after her promotion.

       In June 2003, Klancic promoted Pagonakis again; this time to the full-time

salaried position of Co-Manager. Pagonakis’ accommodations continued. Klancic states

that she “agreed to keep [Pagonakis’] workplace accommodations in place at this time

because I wanted to encourage [her] to remain part of our team.” (JA 306) Klancic

further states that she considered Pagonakis “an asset.” (Id.)

       Then, in late October or early November 2003, Pagonakis’ accommodations came

to the attention of Express’ human resources department. Human resources advised

Klancic that Pagonakis’ accommodations could not continue unless proper medical

documentation was submitted and the requisite approvals were obtained through

Express’ formal approval process. According to Pagonakis, her accommodations ceased

in November 2003-- her schedule changed to include evening shifts and meetings, and

she was assigned to work five to six days in a row. (JA 298) Klancic also testified that


                                             4
Express eliminated special scheduling for all employees, including Pagonakis, at this

time. Express denies that it ever stopped providing accommodations to Pagonakis.

       Pagonakis states that at a November 25, 2003 meeting, Tara Kessler, Regional

Human Resources Generalist for Express, explained that Klancic was not authorized to

grant Pagonakis accommodations and that Pagonakis would need to submit medical

documentation to human resources in order to reinstate the accommodations. Pagonakis

asserts that she had presented doctors reports to Express in the past and that she tried to

submit medical records to Kessler at the meeting, but Kessler refused to accept the

documents. According to Pagonakis, Kessler directed her to contact the HR department

within 24 hours to submit the paperwork.

       According to Pagonakis, in December, 2003 she began to suffer from “extreme

fatigue, exhaustion, and stress” because she was forced to work without her previous

accommodations. (JA 299) She took her first FMLA leave from December 8 or 9

through December 22, 2003.

       On December 23, 2003, Pagonakis’ first day back from leave, her doctor

submitted a one-page list of requested accommodations, but no documents regarding her

disabilities or medical history. Pagonakis states in her declaration, “Defendant accepted

this information and informed me that I had provided all necessary information.” (JA

299)

       Also upon her return from leave, Pagonakis asserts that she was subjected to a


                                              5
hostile work environment as a result of taking leave. Specifically, she states that “my

supervisors and co-workers treated me in a disparaging manner, including by making

rude comments to me . . . [and] frequently criticizing me for taking FMLA leave and

humiliated me by overriding my directions to subordinate employees.” (JA 299)

Pagonakis asserts that this treatment, and Express’ continuing failure to provide her with

the previous accommodations, forced her to take a second period of FMLA leave on

February 3, 2004.

       Pagonakis never returned to work. She resigned on March 18, 2004. Pagonakis

states in her certification, “[a]s of [my resignation date] Defendant still had not located

my personnel file, still had not contacted my physician to discuss my medical conditions

and potential accommodations, still had not communicated with me about my request for

workplace accommodations, and still had not made efforts to reasonably accommodate

my disabilities.” (JA 300)

       Pagonakis filed the instant complaint against Express asserting three claims:

discrimination under the ADA; retaliation under the ADA; and retaliation under the

FMLA. Express moved for summary judgment, attacking all three claims on the merits.

The District Court granted the motion in its entirety. See Pagonakis v. Express, LLC,

534 F. Supp. 2d 453 (D. Del. 2008).

       The District Court held that Pagonakis could not establish a prima facie case of

discrimination under the ADA, because no reasonable factfinder could conclude that


                                              6
Pagonakis could perform the essential functions of the Co-Manager position with

reasonable accommodations. Pagonakis, 543 F. Supp. 2d at 460-63.

       The District Court also held that Pagonakis failed to establish a prima facie case

of discrimination under the ADA because neither Express’ asserted failure to

accommodate, nor Pagonakis’ constructive discharge were actionable adverse

employment actions. Pagonakis, 543 F. Supp. 2d at 464. With respect to Express’ failure

to accommodate, relying on its previous essential functions analysis, the District Court

concluded that there were no reasonable accommodations that would allow Pagonakis to

adequately perform the Co-Manager position. Id. at n.14. As to the constructive

discharge allegations, the District Court concluded that no reasonable jury could find the

off-hand rude comments and other actions of Pagonakis’ supervisors and co-workers

sufficiently severe or pervasive to constitute a hostile work environment justifying her

resignation. Id. at 464.

       As to the two retaliation claims under the ADA and FMLA, the District Court

relied on its previous analysis that no reasonable juror could find an adverse employment

action. Pagonakis, 534 F.Supp.2d at 465.

       This appeal followed.2




   2
      The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291. We apply a plenary standard of
review. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006).

                                               7
                                               II.

                                               A.

       “A disabled employee may establish a prima facie case under the ADA if she

shows that she can perform the essential function[s] of the job with reasonable

accommodation and that the employer refused to make such an accommodation.” Turner

v. Hershey Chocolate USA, 440 F.3d 604, 610 (3d Cir. 2006). Pagonakis “must establish

that she (1) has a ‘disability,’(2) is a ‘qualified individual,’ and (3) has suffered an

adverse employment action because of that disability.” Id. at 611. As noted previously,

the issue of Pagonakis’ disability is not before the Court.

       A “qualified individual” is a person “who, with or without reasonable

accommodation, can perform the essential functions of the employment position that such

individual holds or desires.” 42 U.S.C. § 12111(8). The EEOC regulations divide this

inquiry into two parts: (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. 29 C.F.R. § 1630.2(m). The parties do not dispute the first

prong of the inquiry.

       “Whether a particular function is essential is a factual determination that must be

made on a case by case basis based upon all relevant evidence.” Turner, 440 F.3d at 612

(internal citation, quotation, and alterations omitted). A duty is an “essential function” of



                                               8
the job if it is “fundamental,” and not “marginal,” to the employment position. 29 C.F.R.

§ 1630.2(n)(1). “A job function may be considered essential for any of several reasons,

including, but not limited to, the following:

       (i) The function may be essential because the reason the position exists is to
       perform that function;

       (ii) The function may be essential because of the limited number of employees
       available among whom the performance of that job function can be distributed;
       and/or

       (iii) The function may be highly specialized so that the incumbent in the
       position is hired for his or her expertise or ability to perform the particular
       function.

Turner, 440 F.3d at 612 (citing 29 C.F.R. § 1630.2(n)(2)). Evidence of whether a

particular function is essential might include, but is 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.

29 C.F.R. § 1630.2 (n)(3).

       Because there are disputed issues of material fact as to the essential functions of



                                                9
the Co-Manager position, we cannot agree with the District Court’s conclusion that no

reasonable jury could find that Pagonakis was a qualified individual. As a general matter,

Pagonakis was promoted to Co-Manager by Klancic– the very person who granted

Pagonakis her accommodations in the first place. Drawing a reasonable inference in

favor of Pagonakis, a jury could find that Klancic would not have promoted Pagonakis to

Co-Manager if her accommodations (which were in place at the time of her promotion)

were inherently incompatible with the essential functions of the position.

       Moreover, while Express asserts that opening and closing the store is an essential

function of the Co-Manager position, the record evidence suggests otherwise. First,

according to Express’ own witness, Human Resources Manager Jennifer Hinkle, there is

always a Manager, in addition to at least one Co-Manager on duty, and that Manager (or

the second Co-Manager, if there was one on duty) would be able to open and close the

store. Indeed, Klancic testified to this very fact:

       Q: And [other Co-Managers would] have to close when Ms. Pagonakis
       couldn’t close?

       A: But there was always more than one manager working so there wasn’t [sic]
       any additional people needed to come in.


(JA 210-11) Cf. 29 C.F.R. § 1630.2 (n)(3)(iv) (evidence of whether a function is essential

includes “[t]he consequences of not requiring the incumbent to perform the function.”).




                                              10
       Second, Klancic testified that there were “a lot” of co-managers (JA 336 3 ),

suggesting that the pool of people who could open or close the store was not dramatically

limited by Pagonakis’ elimination from the pool. Cf. Turner, 440 F.3d at 612 (“The

function may be essential because of the limited number of employees available among

whom the performance of that job function can be distributed.”).

       Third, Pagonakis asserts that she never was given keys to the store or trained to be

a key holder. A reasonable factfinder might infer that she was not given training or keys

to the store because she did not need training or keys– i.e., someone else could open and

close the store.

       Similarly, issues of disputed fact exist as to whether working in the store 40 hours

a week (as opposed to working from home some hours) is an essential function, as

Express asserts. First, as noted before, a reasonable factfinder might infer that Klancic

would not have promoted Pagonakis if working 40 hours in the store was an essential

function of the Co-Manager. Second, Jennifer Hinkle states that she needed to budget

additional coverage for the morning and evening hours when Pagonakis could not be at

the store, but she does not explain why extra coverage was needed, or what duties (other

than opening and closing the store) must be performed during the mornings or evenings,

as opposed to other times of the day. Third, Klancic identified work tasks that Pagonakis

performed from home (such as drafting the district newsletter and checking employee


   3
    “Q: There were a lot of co-managers, weren’t there? A: Yes. Q: A good number of
them? A: Yes.” (JA 336)

                                            11
references), which a reasonable jury could find undermines Express’ contention that it

was paying Pagonakis a salary based on 40 hours of work but Pagonakis’

accommodations precluded her from working 40 hours a week.

       Thus, factual disputes as to the essential functions of the Co-Manager position

preclude a holding that no reasonable jury could find that Pagonakis was a qualified

individual under the ADA. The District Court erred in holding otherwise.

       Factual disputes also exist as to whether Pagonakis suffered an adverse

employment action; namely, Express’ asserted failure to reasonably accommodate her

disability.4 Pagonakis and Klancic testified that in November 2003 Express ceased

accommodating Pagonakis, but Express denies that it ever stopped accommodating her.

Express’ Human Resources manager states that “Express ultimately determined that it

would provide the requested accommodations because [Pagonakis] had been

accommodated in this manner for several years.” (JA 79) (emphasis added).

       For the reasons stated above, Pagonakis has raised genuine issues of disputed fact

as to her prima facie case of discrimination under the ADA. Accordingly, the District

Court’s grant of summary judgment on this claim will be reversed.


   4
     Pagonakis also asserts that she was constructively discharged. We agree with the
District Court that the alleged hostile work environment which she asserts forced her to
resign was not sufficiently severe or pervasive to constitute an adverse employment
action. See Pagonakis, 534 F. Supp. 2d at 464. However, for the reasons discussed
herein, her ADA discrimination claim may nonetheless proceed on her failure to
accommodate theory. To the extent Pagonakis asserts that Express’ alleged failure to
accommodate, rather than a hostile work environment, resulted in her constructive
discharge, she may present that theory to a jury.

                                            12
                                             B.

        Pagonakis also asserts that Express’ alleged discontinuance of her

accommodations was in retaliation for her taking FMLA leave.5 The District Court

properly granted summary judgment to Express on this claim 6 because no reasonable jury

could find that Pagonakis’ accommodations stopped as a result of her taking FMLA

leave. See Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004)

(to establish a prima facie case of retaliation under the FMLA, a plaintiff “must show that

(1) [s]he took an FMLA leave, (2) [s]he suffered an adverse employment decision, and

(3) the adverse decision was causally related to [her] leave.”). It is undisputed that

Pagonakis took both of her FMLA leaves after Express allegedly stopped accommodating

her. Indeed, Pagonakis asserts that the alleged failure to accommodate her disabilities

caused her to take medical leave. Logically, Express could not have retaliated on ths

basis of events that had yet to occur. Accordingly, we will affirm the judgment for

Express on the FMLA retaliation claim.




                                             C.


   5
      To the extent Pagonakis asserts that her asserted constructive discharge was in
retaliation for taking FMLA leave, we have already held that the alleged harassment
Pagonakis suffered was not sufficiently severe or pervasive to be actionable. See supra
note 4.
   6
     Pagonakis’ brief in support of this appeal asserts that Pagonakis suffered direct
discrimination under the FMLA in addition to retaliation. However, the Complaint
clearly asserts only an FMLA retaliation claim and not an FMLA discrimination claim.

                                             13
       Lastly, we will also affirm the judgment for Express on the ADA retaliation claim.

As already articulated, Pagonakis’ hostile work environment / constructive discharge

claim fails. While we have held that disputed issues of fact preclude summary judgment

on her failure to accommodate theory, such a claim cannot be characterized as a

retaliation claim under the ADA. The claim is a direct discrimination claim based on

alleged failures to fulfill the affirmative duties prescribed by the ADA, see generally US

Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002) (“the ADA says that ‘discrimination’

includes an employer’s ‘not making reasonable accommodations to the known physical or

mental limitations of an otherwise qualified . . . employee . . .’”) (quoting 42 U.S.C. §

12112(b)(5)(A); emphasis omitted); not a claim based on alleged actions prohibited by the

ADA, see 42 U.S.C. 12203(a) (prohibition against retaliation).




                                             III.

       For the reasons set forth above, the District Court’s judgment for Express on

the failure to accommodate ADA discrimination claim will be reversed and the case

remanded for further proceedings consistent with this opinion. The judgment of the

District Court will be affirmed in all other respects.




                                             14
