NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-2049 ___________
THERMUTHIS LEE, Appellant
v.
KMART ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civil No. 2-16-cv-02011) District Judge: Honorable Legrome D. Davis ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1 August 3, 2018 Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges
(Opinion filed: August 10, 2018) _________
OPINION* _________
PER CURIAM
Thermuthis Lee, proceeding pro se, appeals an order of the United States District
Court for Eastern District of Pennsylvania granting summary judgment in favor of Kmart
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Corporation in her employment discrimination action. For the reasons that follow, we
will affirm the judgment of the District Court.
The record reflects that Lee worked part-time for Kmart as a cashier from
approximately 2007 to 2012. Thereafter, Lee suffered from health issues requiring
kidney dialysis treatment. In 2014, Lee sought to return to work and applied for a part-
time cashier position at a different Kmart store.1 Lee stated in her application that she
could work twenty to twenty-nine hours per week. She also stated that she could work on
Saturdays and Sundays from 2:00 p.m. to 6:00 p.m. and Tuesdays and Thursdays from
10:00 a.m. to 2:00 p.m., and that she could not work on Mondays, Wednesdays, and
Fridays. Lee called Kmart about her application and Eliza Woodson, a Human Resources
employee, scheduled her for an interview.
The interview did not go well. Woodson provided an affidavit stating that Lee
insisted that she should be hired because she had worked for Kmart before. Woodson
stated that Lee had a bad attitude and that she believed that she would not interact well
with customers. Woodson also stated that she asked Lee if she had any additional
availability, that Lee told her that she was only available during the hours identified in
her application, and that Lee said she could not work on the days that she received
dialysis. According to Woodson, Lee did not explain why her availability on other days
The details of Lee’s prior employment are not relevant as there is no evidence that they 1
were a factor in Kmart’s subsequent hiring decision. 2 was limited to defined, four-hour time frames. Woodson stated that she did not pursue
Lee further based on the interview and because there were other candidates with open
availability during the store’s twelve to thirteen hours of daily operation.
Lee testified at her deposition that Woodson became angry with her when she
called to schedule an interview because Lee had interrupted another telephone call. She
stated that the tone of the interview was negative. Lee testified that she told Woodson
that she has a medical condition, that she needed “to be able to work around these days
and times,” but that she could change the schedule she had provided. See 1/5/17 Trans.
at 93. Lee also said that she told Woodson that the on-line application required that she
specify times that she could work and that she put in the times that she did in order to
advance to the next question. Although her testimony is not entirely clear, Lee appears to
state that she told Woodson that she could not commit to working on the days that she
had dialysis (Mondays, Wednesdays, and Fridays) but that she might be able to change
her treatment days. Lee stated that she asked for a flexible schedule, but Woodson told
her that there were other candidates who had more availability.
After Lee learned that she did not get the job, she filed a charge of disability
discrimination with the Equal Employment Opportunity Commission. The EEOC
dismissed the charge.2 Lee filed a complaint in Pennsylvania state court against Kmart
2 Lee also reported her discrimination claim to Kmart’s human resources consulting service. An investigation was conducted and subsequently closed. 3 for discrimination in violation of the Americans with Disabilities Act, 42 U.S.C.
§§ 12101 et seq., and Kmart removed the case to District Court. Following discovery,
the District Court granted summary judgment in favor of Kmart. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is
plenary. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000).
As recognized by the District Court, to the extent Lee claims disparate treatment
on account of her disability based on Kmart’s decision not to hire her, the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. Shaner,
204 F.3d at 500. Lee must establish a prima facie case of discrimination by showing that
she is disabled, that she is otherwise qualified to perform the essential functions of the job
with or without reasonable accommodations, and that she has suffered an adverse
employment decision as a result of discrimination. Id. The burden then shifts to Kmart
to articulate a legitimate, nondiscriminatory reason for not hiring Lee. Id. Lee must then
show that the reason offered was a pretext for discrimination. Id.
The District Court concluded that, even if Lee was qualified and established a
prima facie case, there is not an issue of fact as to whether the reasons Kmart advanced
for not hiring her – her limited availability and poor interview – were a pretext for
discrimination. We agree. Woodson stated that Kmart sought candidates with a wide
range of availability to cover the hours that the store operated. Other candidates stated on
their applications that they were available anytime. Lee testified that she told Woodson
that the hours she had stated she was available could be changed and she argues on
appeal that her application reflects that she could work between twenty and twenty-nine
4 hours per week. But there is no evidence from which a juror would disbelieve that Lee’s
lesser availability compared to other candidates was a reason Woodson did not wish to
hire her. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (pretext may be shown
with evidence from which a fact finder could reasonably disbelieve the employer’s
reason). Also, while the parties may dispute why the interview did not go well, it is
undisputed that it was not a good interview.
There is also no evidence from which a juror could reasonably believe that “an
invidious discriminatory reason was more likely than not a motivating or determinative
cause” for Woodson’s decision. See id. To the contrary, Lee stated at her deposition that
Woodson did not give her any reason to believe that the way she was treating her was
because she had a disability. Woodson attested that her brother had kidney dialysis and
that she would not have disqualified a candidate on this basis. Lee argues on appeal that
Free access — add to your briefcase to read the full text and ask questions with AI
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 17-2049 ___________
THERMUTHIS LEE, Appellant
v.
KMART ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civil No. 2-16-cv-02011) District Judge: Honorable Legrome D. Davis ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1 August 3, 2018 Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges
(Opinion filed: August 10, 2018) _________
OPINION* _________
PER CURIAM
Thermuthis Lee, proceeding pro se, appeals an order of the United States District
Court for Eastern District of Pennsylvania granting summary judgment in favor of Kmart
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Corporation in her employment discrimination action. For the reasons that follow, we
will affirm the judgment of the District Court.
The record reflects that Lee worked part-time for Kmart as a cashier from
approximately 2007 to 2012. Thereafter, Lee suffered from health issues requiring
kidney dialysis treatment. In 2014, Lee sought to return to work and applied for a part-
time cashier position at a different Kmart store.1 Lee stated in her application that she
could work twenty to twenty-nine hours per week. She also stated that she could work on
Saturdays and Sundays from 2:00 p.m. to 6:00 p.m. and Tuesdays and Thursdays from
10:00 a.m. to 2:00 p.m., and that she could not work on Mondays, Wednesdays, and
Fridays. Lee called Kmart about her application and Eliza Woodson, a Human Resources
employee, scheduled her for an interview.
The interview did not go well. Woodson provided an affidavit stating that Lee
insisted that she should be hired because she had worked for Kmart before. Woodson
stated that Lee had a bad attitude and that she believed that she would not interact well
with customers. Woodson also stated that she asked Lee if she had any additional
availability, that Lee told her that she was only available during the hours identified in
her application, and that Lee said she could not work on the days that she received
dialysis. According to Woodson, Lee did not explain why her availability on other days
The details of Lee’s prior employment are not relevant as there is no evidence that they 1
were a factor in Kmart’s subsequent hiring decision. 2 was limited to defined, four-hour time frames. Woodson stated that she did not pursue
Lee further based on the interview and because there were other candidates with open
availability during the store’s twelve to thirteen hours of daily operation.
Lee testified at her deposition that Woodson became angry with her when she
called to schedule an interview because Lee had interrupted another telephone call. She
stated that the tone of the interview was negative. Lee testified that she told Woodson
that she has a medical condition, that she needed “to be able to work around these days
and times,” but that she could change the schedule she had provided. See 1/5/17 Trans.
at 93. Lee also said that she told Woodson that the on-line application required that she
specify times that she could work and that she put in the times that she did in order to
advance to the next question. Although her testimony is not entirely clear, Lee appears to
state that she told Woodson that she could not commit to working on the days that she
had dialysis (Mondays, Wednesdays, and Fridays) but that she might be able to change
her treatment days. Lee stated that she asked for a flexible schedule, but Woodson told
her that there were other candidates who had more availability.
After Lee learned that she did not get the job, she filed a charge of disability
discrimination with the Equal Employment Opportunity Commission. The EEOC
dismissed the charge.2 Lee filed a complaint in Pennsylvania state court against Kmart
2 Lee also reported her discrimination claim to Kmart’s human resources consulting service. An investigation was conducted and subsequently closed. 3 for discrimination in violation of the Americans with Disabilities Act, 42 U.S.C.
§§ 12101 et seq., and Kmart removed the case to District Court. Following discovery,
the District Court granted summary judgment in favor of Kmart. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is
plenary. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000).
As recognized by the District Court, to the extent Lee claims disparate treatment
on account of her disability based on Kmart’s decision not to hire her, the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. Shaner,
204 F.3d at 500. Lee must establish a prima facie case of discrimination by showing that
she is disabled, that she is otherwise qualified to perform the essential functions of the job
with or without reasonable accommodations, and that she has suffered an adverse
employment decision as a result of discrimination. Id. The burden then shifts to Kmart
to articulate a legitimate, nondiscriminatory reason for not hiring Lee. Id. Lee must then
show that the reason offered was a pretext for discrimination. Id.
The District Court concluded that, even if Lee was qualified and established a
prima facie case, there is not an issue of fact as to whether the reasons Kmart advanced
for not hiring her – her limited availability and poor interview – were a pretext for
discrimination. We agree. Woodson stated that Kmart sought candidates with a wide
range of availability to cover the hours that the store operated. Other candidates stated on
their applications that they were available anytime. Lee testified that she told Woodson
that the hours she had stated she was available could be changed and she argues on
appeal that her application reflects that she could work between twenty and twenty-nine
4 hours per week. But there is no evidence from which a juror would disbelieve that Lee’s
lesser availability compared to other candidates was a reason Woodson did not wish to
hire her. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (pretext may be shown
with evidence from which a fact finder could reasonably disbelieve the employer’s
reason). Also, while the parties may dispute why the interview did not go well, it is
undisputed that it was not a good interview.
There is also no evidence from which a juror could reasonably believe that “an
invidious discriminatory reason was more likely than not a motivating or determinative
cause” for Woodson’s decision. See id. To the contrary, Lee stated at her deposition that
Woodson did not give her any reason to believe that the way she was treating her was
because she had a disability. Woodson attested that her brother had kidney dialysis and
that she would not have disqualified a candidate on this basis. Lee argues on appeal that
Woodson failed to acknowledge in her affidavit and concealed that she had submitted an
earlier application for a cashier position, but the relevance of that application is unclear as
Woodson does not appear to have received it and she interviewed Lee after she submitted
the second application.
The District Court also granted summary judgment to the extent Lee claims that
Kmart failed to accommodate her disability. Under the ADA, discrimination includes
“not making reasonable accommodations to the known physical . . . limitations of an
otherwise qualified individual with a disability who is an applicant . . ., unless [the
employer] can demonstrate that the accommodation would impose an undue hardship
5 . . . .” 42 U.S.C. § 12112(b)(5)(A).3 While reasonable accommodations include
modified work schedules, id. § 12111(9), Lee was required to make a prima facie
showing that her proposed accommodation is possible. Turner v. Hershey Chocolate
USA, 440 F.3d 604, 614 (3d Cir. 2006). The burden then shifts to Kmart to prove that
the accommodation is unreasonable. Id.
We agree with the District Court that Lee did not meet her initial burden. Lee
sought a flexible schedule as an accommodation. The District Court noted, and the
record reflects, that Lee stated that she told Woodson that she could work hours other
than those set forth on her application, but she did not define what those hours were.
Lee’s testimony suggests that at the time of the interview she did not yet know when she
would be able to work because she was just starting dialysis. See 1/5/17 Trans. at 104-
06. She admitted in her response in opposition to the summary judgment motion that she
did not then know how much she would be able to do. Resp. at 16. Lee’s proposed
accommodation of a flexible schedule was “clearly ineffective” and summary judgment
was warranted. See Walton v. Mental Health Ass’n of Southeastern Pa., 168 F.3d 661,
670 (3d Cir. 1999).
To the extent Lee claims that Kmart failed to engage in good faith in the
interactive process and assist in seeking an accommodation, her deposition testimony
raises a factual issue as to whether she asked Woodson for an accommodation. See
3 A “qualified individual” is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. § 12111(8). Because the issue of the existence of a reasonable accommodation is dispositive, we do not address whether Lee was “qualified.” 6 Paladino v. Newsome, 885 F.3d 203, 209 (3d Cir. 2018) (deposition testimony setting
forth facts that contradicted the defendants’ evidence established a genuine issue of
material fact). Summary judgment, however, was still warranted because, as above, there
is insufficient evidence showing that Lee could have been reasonably accommodated.
See Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010) (setting forth showing
required to establish employer failed to engage in the interactive process).
Lee argues on appeal that the District Court failed to consider the exhibits to her
response to Kmart’s summary judgment motion, which are not included in the record.
Lee has not shown that the exhibits preclude summary judgment. Some of the exhibits,
for example, show that Lee was recognized for excellent customer service, but the
District Court did not decide whether Lee was qualified for the position. Lee also argues
that Kmart did not file her entire deposition transcript in District Court, but she did not
present this argument below and it is not properly before us.
Accordingly, we will affirm the judgment of the District Court.4
4 Lee states in her brief that she is appealing a Clerk’s Order providing that this appeal will not be considered for dismissal pursuant to 28 U.S.C. § 1915(e)(2) or summary action. Lee does not explain why she seeks review of the order and we do not consider it. 7