1 All facts listed here are undisputed. Where there are disputes over certain facts,

all reasonable inferences have been made in favor of the plaintiff. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986) (all reasonable factual inferences must be made in a light

most favorable to the nonmoving party).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EVERLINA HARP : CIVIL ACTION

 :

v. :

 :

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY : NO. 04-2205

Norma L. Shapiro, S.J. May 31 , 2006

MEMORANDUM & ORDER

Before the court is a motion for summary judgment filed by defendant, Southeastern

Pennsylvania Transportation Authority (“SEPTA”). Plaintiff, Everlina Harp, a former employee

of defendant, in this employment discrimination action under the Americas with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43

P.S. § 951, et seq., alleges she was unlawfully terminated because of her physical disability. 

Defendant asserts that plaintiff has failed to establish a prima facie case under the ADA and the

PHRA, and also articulates four legitimate nondiscriminatory reasons for plaintiff’s discharge:

(1) falsifying documentation; (2) conduct unbecoming an employee; (3) misusing and abusing

benefits; and (4) feigning illness. Because plaintiff has failed to present evidence rebutting the

proffered valid reasons for plaintiff’s discharge, and because her alternate arguments also fail,

defendant’s summary judgment motion will be granted.

I. Background1

Harp was employed by SEPTA as a bus driver. In November 2002, she was injured in a

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 1 of 16
2

bus accident while on the job and remained out of work for approximately two months. When

Harp returned to work, she was initially assigned a job as a light-duty filing assistant. In

February 2003, Harp sought and received a position as a timekeeper clerk under the supervision

of Anthony Teodoro. Soon afterwards, Harp was officially medically disqualified as a bus

driver. Through June 2003, Harp remained on the job as a timekeeper clerk without incident. In

July 2003, Harp took approximately 12 days bereavement leave. She returned to work on July

21, 2003, but the following day she suffered a reoccurrence of her prior injury while at work. 

She was unable to continue working and went to the emergency room. The next day, Harp filed

a petition for reinstatement of workers’ compensation benefits (Ex. I to Def.’s Br.), which was

later denied.

Following her visit to the emergency room, Harp received medical care from her personal

physician, Joseph Cipriano, D.O., who completed a physical capacities form (Ex. G to Def.’s Br.)

setting forth a litany of Harp’s physical restrictions, including restrictions on squatting, bending,

crawling, climbing and reaching. The form stated Harp was capable of occasionally lifting and

carrying five pounds or less, and sitting for one hour during an eight-hour work day. Finally, the

form stated Harp could return to work on August 5, 2003, provided that she was limited to a sixhour work day.

On August 5, 2003, Harp returned to work, presented the physical capacities form to her

supervisor, Mr. Teodoro, and worked a six-hour day. The following day, when Harp was asked

to file a large amount of paperwork, she informed her supervisor she was unable to perform that

task. Teodoro instructed Harp not to come to work until she felt better and told her to report to

Dr. Richard Press at the SEPTA medical department. Teodoro also gave Harp a function

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 2 of 16
3

assessment report to be completed by her treating physician.

Harp had her treating physician, Dr. Cipriano, complete the function assessment report

(Ex. K to Def.’s Br.). That report set forth restrictions similar to those in Harp’s physical

capacities form, with the additional provision that her sitting, standing and walking limitations

would last for one year. Thereafter, Harp reported to Dr. Press, who told her she was not being

cleared for any work and, as she was under active treatment, she should “stay in the sick book”

until her physical condition improved. Harp 5/16/05 Dep. (Ex. B to Def.’s Br.) (“Harp Dep. I”)

at 301. Harp was given a SEPTA medical department encounter slip (Ex. P to Def.’s Br.) stating

she was not to return to work until further notice.

Immediately after leaving the SEPTA medical department, Harp went to see Linda

Yoxtheimer in SEPTA’s vocational rehabilitation department in order to ask about alternate

work options. At some point, Harp wrote the word “year” on the medical encounter slip on the

line following the phrase “[d]ate able to return to work.” See Ex. R. (altered medical encounter

slip) to Def.’s Br.; Harp. Dep. I at 309. After discovering that Ms. Yoxtheimer was not in her

office, Harp gave the altered medical encounter slip to Linda Suters, a workers’ compensation

claims adjuster for SEPTA. Harp Dep. I at 314. Ms. Suters later obtained a copy of the

unaltered medical encounter slip and saw that the original did not include the word “year” on the

line following the phrase “[d]ate able to return to work.”

Harp received sick benefits from SEPTA until September 10, 2003. On that day, Harp

testified at an unemployment compensation hearing that she had voluntarily quit her job because

of health problems. Ex. J (unemployment compensation referee’s notice of determination) to

Def.’s Br. at 1; Harp 5/18/05 Dep. (Ex. L to Def.’s Br.) (“Harp Dep. II”) at 10-13. She later was

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 3 of 16
4

awarded unemployment benefits. While on sick leave, Harp also sought outside employment

from a temporary employment agency. Harp Dep. I at 325. On September 30, 2003, Teodoro

received a phone call from a temporary job placement company concerning Harp’s employment

status. Teodoro filed an incident report (Ex. S to Def.’s Br.) following the call and subsequently

began discharge procedures for Harp after notifying her of his intention to do so. Harp Dep. II at

22.

Harp was charged with: (1) falsifying documentation; (2) conduct unbecoming an

employee; (3) misusing and abusing benefits; and (4) feigning illness. Ex. T (interview report) to

Def.’s Br.. A meeting was scheduled for October 7, 2003 so that Harp’s supervisors could

discuss these charges with her, but she did not attend the meeting. Harp Dep. II at 28-30. A

second meeting was scheduled for November 17, 2003, but once again Harp did not attend. Harp

Dep. II at 34. She was discharged shortly thereafter. Before her termination, Harp never gave

her supervisors a reason – legitimate or otherwise – for altering the medical encounter slip and

handing it to Suters. Harp Dep. II at 35-37.

II. Discussion

A. Standard of Review

Summary judgment is appropriate where the record shows there is “no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). Material facts are those which bear upon the outcome of the case. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable factual inferences must be made

in a light most favorable to the nonmoving party. Id. at 255. However, the nonmoving party

bears the burden to establish the existence of each element of her case. Celotex Corp. v. Catrett,

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 4 of 16
2 SEPTA asserts Harp is judicially estopped from arguing she is a qualified

individual under the ADA because she previously stated in a petition for workers’ compensation

benefits, dated July 22, 2003, that she “can no longer work.” Ex. I (petition to reinstate benefits)

to Def.’s Br. at 1. It is unclear whether Harp’s statement referred to total disability or took into

account her entitlement to reasonable accommodation. In Turner v. Hershey Chocolate USA,

440 F.3d 604, 608 (3d Cir. 2006), the court of appeals rejected a similar judicial estoppel

argument for this reason. Harp is not judicially estopped from bringing her claim.

5

477 U.S. 317, 323 (1991). In doing so, the plaintiff must present specific evidence from which a

reasonable fact finder could conclude in her favor. Anderson, 477 U.S. at 248; Jones v. United

Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Mere conclusory allegations or denials are not

enough to preclude summary judgment. Jones, 214 F.3d at 402; Schoch v. First Fidelity

Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).

Plaintiff has brought claims under both the ADA and the PHRA; these claims are treated

as coextensive of one another. Jones v. School District of Philadelphia, 198 F.3d 403, 409 (3d

Cir. 1999); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). If summary judgment is

appropriate under the ADA, summary judgment is also appropriate under the PHRA. Williams

v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 761 n.6 (3d Cir. 2004).

B. Prima Facie Case of Disability Discrimination

To establish a prima facie case of employment discrimination under the ADA, a plaintiff

must show: (1) she is a disabled person within the meaning of the ADA; (2) she is otherwise

qualified to perform the essential functions of the job, with or without reasonable

accommodations by the employer;2 and (3) she has suffered an otherwise adverse employment

action as a result of discrimination. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d

Cir. 2006); Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). Although it is not certain that,

at the time of her discharge, Harp was a disabled person under the ADA or was otherwise

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 5 of 16
3 The parties have not addressed whether the adverse employment action was

Harp’s placement in the sick book or her ultimate termination. Plaintiff does not argue that her

placement in the sick book constituted an adverse employment action under the ADA. The

parties appear to agree that Harp’s termination in November 2003 was an adverse employment

action under the ADA. The sole federal count of plaintiff’s amended complaint, count one, is

entitled “ADA-Failure to Accommodate Unlawful Termination.” Am. Compl. at 4. The court

will treat Harp’s termination as the adverse employment action giving rise to her discrimination

claim.

4 Although originally set forth for Title VII claims in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), this three-part burden-shifting framework now applies to ADA and

ADEA claims, as well as claims brought under 42 U.S.C. § 1981 and the Rehabilitation Act. See

Shaner, 204 F.3d at 500 (ADA disparate treatment and retaliation); Walton v. Mental Health

Ass’n of Southern Pa., 168 F.3d 661, 667-68 (3d Cir. 1999) (ADA termination); Brewer v.

(continued...)

6

qualified to perform the essential functions of a timekeeper clerk, the court will assume without

deciding that Harp has established a prima facie case of discrimination.3 See Turner, 440 F.3d at

614 (reversing district court’s grant of summary judgment and “caution[ing] against any

premature determination of what is an essential function” or a “reasonable accommodation”

under the ADA).

C. Pretext

If a plaintiff succeeds in establishing a prima facie case of employment discrimination

under the ADA, the burden shifts to the employer to articulate some legitimate nondiscriminatory

reason for the adverse employment action it has taken. Shaner, 204 F.3d at 500; Jones, 198 F.3d

at 410. After the employer proffers a valid business reason for its action, any presumption of

discrimination disappears, and the plaintiff must present sufficient evidence “from which a fact

finder could reasonably either: (1) disbelieve the employer’s articulated legitimate reasons; or (2)

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

determinative cause of the employer’s action.”4 Walton v. Mental Health Ass’n of Southeastern

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 6 of 16
4

(...continued)

Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995) (ADEA); Pamintuan v.

Nanticoke Mem. Hosp., 192 F.3d 378, 385 (3d Cir. 1999)(Section 1981); Antol v. Perry, 82 F.3d

1291, 1299 (3d Cir. 1996) (Rehabilitation Act). The mixed-motives framework set forth in Price

Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) can apply alongside or in place of the

McDonnell Douglas framework, but does not apply in this case. See infra part D.

7

Penn., 168 F.3d 661, 668 (3d Cir. 1999); Sheridan v. E.I. Dupont de Nemours and Co., 100 F.3d

1061, 1067 (3d Cir. 1996) (en banc). A plaintiff can rebut a legitimate, nondiscriminatory reason

for termination only if the stated reason is merely a “post hoc fabrication or otherwise did not

actually motivate the employment action.” Pamintuan v. Nanticoke Mem. Hosp., 192 F.3d 378,

386 (3d Cir. 1999). Although “the burden of production may shift, ‘the ultimate burden of

persuading the trier of fact that the defendant intentionally discriminated against the plaintiff

remains at all times with the plaintiff.’” Shaner, 204 F.3d at 500-01 (citation omitted).

In the absence of direct evidence of discrimination, “a plaintiff may rely on circumstantial

evidence to ‘demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions’ in the employer’s proffered legitimate reasons so as to permit a reasonable fact

finder to infer that the employer did not act for the proffered reasons” and instead had a

discriminatory motive. Shaner, 204 F.3d at 503 (quoting Fuentes v. Perskie, 32 F.3d 759, 765

(3d Cir. 1994)). It is not sufficient for a plaintiff to show that the employer’s decision was wrong

or mistaken; “the factual dispute at issue is whether discriminatory animus motivated the

employer, not whether the employer is wise, shrewd, prudent, or competent.” Fuentes, 32 F.3d at

765; see also Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 332 (3d Cir. 1995) (“We

do not sit as a super-personnel department that reexamines an entity’s business decisions. . . .

Rather, our inquiry is limited to whether the employer gave an honest explanation of its

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 7 of 16
8

behavior.”).

Although “a plaintiff’s own affidavit providing circumstantial evidence of discrimination

may in certain cases be sufficient by itself to withstand a defendant’s motion for summary

judgment,” Pamintuan, 192 F.3d at 387, a plaintiff’s pretext rebuttal is insufficient if it is not

supported by evidence and is based on nothing more than plaintiff’s personal opinion of her

employer’s proffered reason. Compare Sarullo v. U.S. Postal Service, 352 F.3d 789, 800 (3d Cir.

2003) (affirming grant of summary judgment for employer where plaintiff’s rebuttal was

insufficient for these reasons), and Jones, 198 F.3d at 414 (same), and Pamintuan, 192 F.3d at

387 (same), with Lawrence v. Nat’l Westminster Bank New Jersey, 98 F.3d 61, 66-67 (3d Cir.

1996) (reversing grant of summary judgment for employer on ADEA claim where plaintiff

supported his pretext rebuttal with the depositions of several co-workers) and Antol v. Perry, 82

F.3d 1291, 1300-03 (3d Cir. 1996) (reversing grant of summary judgment for employer on

Rehabilitation Act claim based upon similar evidence).

Harp does not contest that SEPTA has met its burden of production by articulating four

legitimate nondiscriminatory reasons for firing her: (1) falsifying documentation; (2) conduct

unbecoming an employee; (3) misusing and abusing benefits; and (4) feigning illness. See Ex. T

(interview report) to Def.’s Br.; Pl.’s Br. at 18. The only issue is whether Harp has presented

sufficient evidence to rebut SEPTA’s proffered business reasons for terminating her. Harp’s

claim fails at this final stage; she has not presented any evidence from which a jury could

conclude by a preponderance of the evidence that SEPTA’s legitimate reasons for firing her were

pretexts for unlawful disability discrimination.

Harp admits that she wrote the word “year” on the medical encounter slip on the empty

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 8 of 16
5 Harp had filed for workers’ compensation benefits approximately three weeks

earlier, on July 22, 2003. See Ex. I (petition to reinstate benefits) to Def.’s Br..

6 Harp claims she was justified in not attending the meetings she knew SEPTA had

scheduled because her union representative was supposed to go on her behalf, but failed to do so. 

Harp Dep. II at 24-34. This assertion does not show that the first of SEPTA’s valid reasons for

firing Harp was a pretext for unlawful discrimination. Because she never told her supervisors

why she altered the medical slip before handing it to Suters, SEPTA reasonably could have

(continued...)

9

line following the phrase “[d]ate able to return to work,” and gave the altered slip to Linda

Suters, a workers’ compensation claims adjuster for SEPTA.5 See Ex. R (altered medical

encounter slip) to Def.’s Br.; Harp. Dep. I at 309, 314. Harp asserts that she altered the medical

encounter slip “because it was her own copy and it was intended to mean that Dr. Press would

not permit her to work under the 6 hour restriction for 1 year as prescribed by her treating

physician.” Pl.’s Br. at 18; see also Harp Dep. I at 305-21. While it is true that Harp’s personal

doctor, Joseph Cipriano, D.O., had recommended a limited work day for Harp for one year (Ex. J

(function assessment report) to Def.’s Br.), the clerk from SEPTA’s medical department had

specifically indicated on Harp’s medical encounter slip that the time period for Harp’s work

restrictions was open-ended (Ex. P (medical encounter slip) to Def.’s Br.). Harp’s explanation

for altering her medical encounter slip and handing it to Linda Suters, one of SEPTA’s workers’

compensation claim adjusters, does not suggest that the first of SEPTA’s legitimate reasons for

firing her – falsifying documentation – was a pretext for disability discrimination. Harp never

told her supervisors why she had altered the slip, and she failed to attend the meetings they

scheduled upon the commencement of her discharge proceedings. Harp Dep. II at 28, 34-38. 

Although Harp may have had a legitimate excuse for altering the medical slip, SEPTA had no

way of knowing it before discharging her.

6

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 9 of 16
6

(...continued)

concluded, at the time of Harp’s discharge, that Harp did not contest SEPTA’s articulated

justifications for seeking to terminate her employment.

10

Harp also asserts that she informed Ms. Suters that the altered medical encounter slip was

intended for Linda Yoxtheimer, who worked in SEPTA’s vocational rehabilitation department. 

Pl.’s Br. at 18; Harp Dep. I at 283-87. This might show that Harp did not intend to engage in

workers’ compensation fraud specifically, but it fails to establish that Harp was not engaging in

the falsification of records for some other reason, or that SEPTA’s first reason for firing her was

a pretext for discrimination.

Harp asserts Anthony Teodoro was aware of her falsification of documents on August 13,

2003, yet failed to take action until October 2, 2003; she argues this six-week delay, from the

time SEPTA learned the medical slip was altered until the commencement of Harp’s discharge

proceedings, shows that SEPTA’s first reason for termination was pretextual. See Pl.’s Br. at 19. 

A six-week delay alone is not enough to establish that SEPTA’s first justification for firing Harp

was a pretext for disability discrimination. This is particularly true in light of SEPTA’s other

justifications for termination – conduct unbecoming an employee, misusing and abusing benefits,

and feigning illness. On September 30, 2003, Teodoro discovered that Harp was seeking work

from a temporary job placement agency while on sick leave at SEPTA. See Ex. S (incident

report) to Def.’s Br.. Two days later, Teodoro began gathering information to commence

discharge proceedings because it appeared, at that time, that Harp had falsified records, misused

benefits, and feigned illness.

Harp makes the final argument that Teodoro did not “believe[] that Harp was falsifying a

document.” Pl.’s Br. at 19. In support, Harp cites a portion of Teodoro’s deposition testimony

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 10 of 16
11

from her workers’ compensation proceedings. Teodoro 5/25/04 Dep. (Ex. G to Pl.’s Br.)

(“Teodoro Dep.”) at 45-46. The cited testimony fails to demonstrate pretext and the testimony

immediately preceding it actually supports SEPTA’s rationale for firing Harp. After being asked

to give his “own opinion” as to “why [Harp] would have wanted to write the word ‘year’” on the

medical encounter slip before handing it to Suters, Teodoro speculated that, “since Workers’

Comp. wasn’t paying her . . . she must have been a little disturbed or something that Workers’

Comp. wasn’t picking it up. So she went up to the sixth floor to turn the paperwork in to

Workers’ Comp..” Teodoro Dep. at 44-45. Teodoro’s testimony confirms that Harp altered the

slip and handed it to a workers’ compensation claims adjuster, and suggests that she did so in

order to acquire workers’ compensation benefits after they were previously denied.

The court need not address SEPTA’s other justifications for termination in great detail

because “conduct unbecoming an Authority employee,” “misuse and abuse of Authority

benefits,” and “fainting [i.e., feigning] illness” are essentially derivations of SEPTA’s first

justification, “falsifying documentation,” addressed above. Ex. T (interview report) to Def.’s Br.. 

In any case, Harp has failed to rebut these valid reasons as well. Harp argues that her attempt to

seek temporary work while placed in SEPTA’s sick book does not show that she engaged in

conduct unbecoming an employee or feigned illness. Pl.’s Br. at 20-21. But the record shows

this is just one instance prior to her firing in which SEPTA could have reasonably concluded that

Harp was being dishonest about her medical condition. The uncontested facts surrounding

Harp’s falsification of a medical document adequately support SEPTA’s conclusion that Harp

was engaging in conduct unbecoming an employee and feigning illness.

With regard to misusing and abusing benefits, Harp argues this reason is unsupported by

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 11 of 16
12

evidence because the “overpayment of sick benefits was due to an error on the part of SEPTA.” 

Pl.’s Br. at 19; see also Teodoro Dep. at 57 (discussing SEPTA’s overpayment of sick benefits to

Harp, and acknowledging it was not her fault). But SEPTA’s articulated reason does not refer to

the misuse of sick benefits specifically; it addresses “benefits” generally. See Ex. T (interview

report) to Def.’s Br.. The uncontested facts surrounding Harp’s falsification of a medical

document, which she handed to a workers’ compensation claims adjuster, adequately supports

SEPTA’s conclusion that Harp was attempting to misuse employee benefits.

Harp has not presented evidence to show that SEPTA’s articulated legitimate reasons for

firing her were pretextual. She has not produced evidence from which a fact finder could

reasonably either disbelieve SEPTA’s assertion that it fired her for falsifying documents, conduct

unbecoming an employee, misusing and abusing benefits, or feigning illness, or believe that an

invidious discriminatory reason was more likely than not a motivating or determinative cause of

the employer’s action.

D. Mixed-Motives

Harp makes the alternate claim that, after Desert Palace, Inc. v. Costa, 539 U.S. 90

(2003), she can proceed with her ADA claim under both the McDonnell Douglas burden-shifting

approach and the mixed-motives approach enunciated in Price Waterhouse v. Hopkins, 490 U.S.

228, 258 (1989). In Price Waterhouse, the Supreme Court addressed the situation where an

employer has both legitimate and illegitimate reasons for making an adverse employment

decision, and held, where the illegitimate reason was a motivating force behind the decision, the

employee’s Title VII claim can succeed unless the employer is able to show by a preponderance

of the evidence that the same action would have been taken absent the illegitimate reason. Id.

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 12 of 16
13

Following the passage of the Civil Rights Act of 1991 two years later, some lower courts

required a Title VII plaintiff to produce direct evidence of discrimination in order to proceed

under the mixed-motives approach enunciated in Price Waterhouse. See Desert Palace, 539 U.S.

at 94-95 (discussing the relevant statutory provisions and lower court cases). In Desert Palace,

the Supreme Court clarified the mixed-motive framework by holding that a mixed-motives jury

instruction could be given in a Title VII case even if only circumstantial evidence of

discrimination had been presented at trial. 539 U.S. at 101. Harp, who presents only

circumstantial evidence of discrimination, argues from Desert Palace that she can proceed under

Price Waterhouse if she is unable to show pretext under the McDonnell Douglas.

Harp’s argument fails because the mixed-motives framework used in Desert Palace has

not been extended to the ADA in a summary judgment context. Chubirka v. Int’l Paper/Xpedx

Paper & Graphics, No. 04-5010, 2005 WL 1840170, at *3 n.6 (E.D. Pa. Aug. 2, 2005) (“Desert

Palace . . . is inapplicable in this case inasmuch as Desert Palace addresses statutorily-based,

post-trial jury instructions in a Title VII case, and has not been extended to ADA or ADEA

claims in the summary judgment context by the Third Circuit.”). In post-Desert Palace actions

similar to this, the Supreme Court has continued to apply the McDonnell Douglas burdenshifting approach. See, e.g. Raytheon Co. v. Hernandez, 540 U.S. 44, 50-51 (2003) (approving

use of McDonnell Douglas framework at summary judgment stage in an ADA disparate

treatment action). The Third Circuit has done so also. See, e.g. Williams v. Philadelphia

Housing Auth. Police Dep’t, 380 F.3d 751, 761-62 (3d Cir. 2004) (using McDonnell Douglas

framework in post-Desert Palace ADA action where plaintiff introduced only circumstantial

evidence of disparate treatment).

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 13 of 16
14

Consequently, in an ADA action, if direct evidence of discrimination is produced, the

Price Waterhouse framework applies; if circumstantial evidence of discrimination is produced,

the McDonnell Douglas framework applies; if both kinds of evidence are produced, both

frameworks apply. See Glanzman v. Metropolitan Mgmt. Corp., 391 F.3d 506, 512 (3d Cir.

2004) (ADEA action); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 n.4 (3d Cir.

2003) (“Referring to these theories [i.e., “a pretext suit” and “a mixed-motives suit”] as though

they . . . encompass two mutually exclusive legal theories is as troublesome as it is misleading.”). 

Harp has failed to produce any direct evidence of unlawful discrimination, i.e., evidence that is

“sufficient to allow the jury to find that the decision makers placed a substantial negative reliance

on the plaintiff’s age [or here, disability] in reaching their decision.” Glanzman, 391 F.3d at 512. 

She cannot proceed under a mixed-motives approach.

E. Interactive Process

Harp also argues that SEPTA failed to engage in the “interactive process.” The federal

regulations associated with the ADA provide that, “[t]o determine the appropriate reasonable

accommodation it may be necessary for the covered entity [i.e., the employer] to initiate an

informal, interactive process with the qualified individual with a disability [i.e., the employee] in

need of accommodation.” 29 C.F.R. § 1630.2(o)(3). The interactive process requires both

parties “to assist in the search for appropriate reasonable accommodation and to act in good

faith.” Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997). If an employer fails to engage in

the interactive process, it risks violating the ADA’s requirement to provide reasonable

accommodation to a disabled but otherwise qualified employee. Shapiro v. Township of

Lakewood, 292 F.3d 356, 359 (3d Cir. 2002); Deane v. Pocono Med. Ctr., 142 F.3d 138, 149 (3d

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 14 of 16
7

If the interactive process were relevant, Harp’s argument would still be without

merit in light of SEPTA’s attempts to communicate with Harp in person, by phone, by fax, or

through the scheduled meetings. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d

Cir. 1999) (describing the steps an employer might take to engage in the interactive process,

similar to those steps taken by SEPTA); see also Mengine, 114 F.3d at 421 (an employer’s

suggestion that a disabled employee consider disability retirement is not evidence of bad faith).

15

Cir. 1998) (en banc).

The sufficiency of the interactive process would be relevant if the court were granting

summary judgment for SEPTA based on its argument that it would have been impossible or an

undue burden to accommodate Harp’s physical limitations. But summary judgment will not be

granted on these grounds; rather, it will be granted because SEPTA has articulated legitimate

reasons for Harp’s termination which Harp has been unable to show were pretexts for disability

discrimination. SEPTA’s justifications for termination are independent of the interactive

process; the interactive process need not be addressed.7

III. Conclusion

There is no genuine issue of material fact; summary judgment will be granted for the

defendant. An appropriate order follows.

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 15 of 16
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EVERLINA HARP : CIVIL ACTION

 :

v. :

 :

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION AUTHORITY : NO. 04-2205

ORDER

AND NOW, this 31st day of May, 2006, upon consideration of defendant’s motion for

summary judgment and plaintiff’s opposition thereto, after a hearing on September 20, 2005 at

which counsel for both parties were heard, for the reasons included in the accompanying

memorandum, it is ORDERED:

1. Defendant’s motion for summary judgment (paper # 19) is GRANTED.

2. JUDGEMENT is ENTERED in favor of defendant and against plaintiff.

3. The clerk is directed to mark this action CLOSED.

/s/ Norma L. Shapiro 

Norma L. Shapiro, S.J. 

Case 2:04-cv-02205-NS Document 27 Filed 05/31/06 Page 16 of 16