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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S24016-20
(“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.
-2- J-S24016-20
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,
-3- J-S24016-20
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
-4- J-S24016-20
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.
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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. J-S24016-20
(“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.
-2- J-S24016-20
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,
-3- J-S24016-20
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
-4- J-S24016-20
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].
-5- J-S24016-20
[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.
-6- 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.”
-7- J-S24016-20
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).
-8- J-S24016-20
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
-9- J-S24016-20
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).
- 10 - J-S24016-20
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
- 11 - J-S24016-20
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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