IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BARBARA BAIR, : Civil No. 4:13-CV-2866

:

Plaintiff : (Judge Brann)

:

v. : (Magistrate Judge Carlson)

:

CITIZENS BANK OF :

PENNSYLVANIA, :

:

Defendant :

REPORT AND RECOMMENDATION

I. Introduction 

The Americans With Disabilities Act (ADA) provides that, “no covered entity

shall discriminate against a qualified individual with a disability because of the

disability of such individual in regard to job application procedures, the hiring,

advancement or discharge of employees, employee compensation, job training, and

other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). One

important aspect of this statutory scheme designed to protect the disabled from

workplace discrimination is the requirement that employees and employers engage

in a good faith interactive process in order to determine whether the requirements of

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the workplace can be reasonably accommodated with the needs of those who wish to

work but face challenges on the job due to disabilities. 

The duty to engage in an interactive process is a reciprocal duty: Both the

employee and the employer must work together for this process to succeed. At its

best, this process yields direct and tangible benefits for both the employer and the

employee. However, sometimes the failure to communicate produces confusion

rather than clarity.

So it is in this case. The plaintiff, Barbara Bair, was formerly employed for

many years as a teller at Citizens Bank and its corporate predecessors. In 2012,

Bair’s employment was terminated after she undertook an extended and reportedly

indefinite leave of absence from work due to a medical condition, scoliosis. While

Bair now alleges that this termination was the result of an intentional act of

discrimination against her due to her disability in violation of the ADA, the

undisputed evidence presents a different story, a story marked by failures of

communication and miscommunication, much of which is attributable to the plaintiff

herself who told her employer she was disabled and provided a certification from her

doctor stating that her disability could not be accommodated in the workplace. In

short, the evidence reveals that Bair’s termination was, at most, the product of a

flawed interactive process between Bair and her employer, a process whose flaws

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may have stemmed from several sources but which was in large measure

fundamentally flawed due to the choices and decisions made by Bair.

Finding that the evidence only demonstrates an imperfect interactive

process, something which falls far short of the intentional discrimination required

to prove an ADA violation in this setting, it is recommended that this case be

dismissed. 

II. Statement of Facts and of the Case

A. Factual Background1

At the time of the events set forth in the complaint, the plaintiff, Barbara

Bair, was a woman in her sixties, who had been employed as a bank teller for

Citizens Bank and its corporate predecessors since 1990. By 2010 Bair worked at

a State College, Pennsylvania branch office of the bank. Bair’s immediate

supervisor was the branch manager, Eli Blackburn. Ms. Bair suffers from

scoliosis, a physical curvature of the spine, and has suffered from this condition

for the past forty years. This scoliosis causes significant pain and limitations on

movement for the plaintiff. Over time, Bair had found that alternating sitting and

This factual background is derived from the parties’ competing statements 1

of facts to the extent that those factual averments are supported by the voluminous

evidentiary materials tendered by the parties. (Docs. 25, 26 and 29.)

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standing while at work helped her to alleviate the discomfort caused by this

scoliosis.

In 2011, Citizens Bank changed its sales model for retail banking through

an initiative called “Branch Transformation.” As part of this process, Bair’s duties

at the branch office changed in ways which often required her to sit for prolonged

periods, and limited her ability to sit and stand at will as she had done in the past. 

While Bair complained of back pain while at work, it is undisputed that Bair never

sought any form of physical accommodation from her branch manager because of

her scoliosis. (Doc. 26-1, pp. 6 and 8.) Bair also never sought out duty

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assignments at work which would have allowed her greater flexibility in terms of

sitting and standing while at work. (Id., p. 27.) Bair’s complete failure to seek or

request accommodations from her branch management was particularly regrettable

since it is also undisputed that the branch manager, Mr. Blackburn, would have

considered sit-stand options for Bair if she had requested such an accommodation. 

The specificity of Bair’s complaints of back pain to her branch office

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management is not entirely clear. Bair and Blackburn both agree that Bair

complained of aches and pains. Bair believes Blackburn also knew of her

scoliosis, although she points to no specific conversation which would have

placed him on notice of this particular ailment and diagnosis. For his part,

Blackburn denies knowing of the specific details of this illness. (Compare Doc.

16-1 with Doc. 26-2.) For our purposes, this dispute between the parties is not

material to the outcome of this case. 

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( Doc. 26-2, p. 12.) Even in the absence of any request for accommodation for

Bair, Mr. Blackburn made physical accommodations for Bair and other female

bank employees, instructing male staff to undertake the heavy work of carrying

large quantities of coins processed by the branch office. ( Docs. 26-1, p. 26.)

While Bair never sought any form of accommodation for her back problems

from her immediate supervisors, by the Spring of 2012, she began to make plans to

seek disability benefits and extended leave from work. Towards this end, Bair met

with her treating physician, Dr. Kopinski, on several occasions between April and

July 2012 to discuss her interest in obtaining disability benefits. (Doc. 26-1, pp.

39, 40.) Bair did not share these discussions with her on-site supervisor at the

bank, Mr. Blackburn. In fact, Mr. Blackburn appears to have first learned of

Bair’s plans to seeks disability benefits and extended leave from his own corporate

Human Relations Department, as that department was processing a July 2012

leave request made by Bair. 

3

Bair’s failure to seek out any workplace accommodations prior to her

sudden July 2012 leave departure impeded Citizens Bank in its efforts to try to

According to Bair she applied for this leave and disability on-line through

3

the corporate HR department on the eve of her scheduled departure in July 20112,

and Mr. Blackburn learned of he planned leave from HR inspiring him to ask Bair,

“When were you planning on telling me about this?” (Doc. 26-1, p.7.) 

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address Bair’s workplace medical concerns. The election which Bair made to first

pursue disability benefits, rather than a workplace accommodation, then further

complicated communications regarding whether there were any reasonable

accommodations which could be made to her needs. Three factors combined to

further cloud and obscure any understanding by the bank of Bair’s workplace

needs.

First, from the outset of the process initiated by Bair in July of 2012, it was

apparent that Bair’s principal interest was in obtaining disability benefits. Thus,

Bair’s first formal requests to the bank in July 2012 were not framed as ADA

accommodation requests. Quite the contrary, Bair was taking the position that she

was disabled, could not return to work, and was seeking disability benefits. Bair

would persist in this view that she was disabled throughout this process in 2012,

continuing to state that she was disabled even as she sought workplace

accommodations under the ADA.

Second, the process by which the bank dealt with Family Medical Leave

Act requests, ADA accommodation requests, and requests for short term disability

benefits was fragmented in ways which created further obstacles to a ready

understanding of Bair’s requests. (Doc. 25, ¶¶5-9.) Thus in the summer of 2012,

Citizens used a third party vendor, Aon Hewitt, to answer employee inquiries

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related to leaves of absence. Employees who dialed a telephone number for the

HR service center were provided a prompt for questions related to a leave of

absence, and when employees selected the prompt, the call was transferred to Aon

Hewitt. (Id.) Short term disability benefit requests, in turn, were referred to a

representative from Liberty Mutual, who administered Citizens’ Short Term

Disability benefit program. (Id.) Citizens Bank’s Human Relations department

separately assessed and addressed employee ADA reasonable accommodation

requests. (Id.) In practice, there was very little direct communication between

these different entities as they addressed these different employee requests, and

information that Bair might have shared with Aon Hewitt in connection with a

leave request would not necessarily be available to Citizens Bank HR staff when

they later evaluated a very different request, a request for a workplace

accommodation.

Finally, the representations which Bair, and her treating physician, made to

Citizens Bank in the course of this process changed significantly over time, further

hampering any ready understanding of what relief or accommodation Bair

ultimately sought from her employer. Ultimately, the fact that Bair’s doctor flatly

stated that no reasonable accommodation was possible for her condition

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overshadowed any earlier ambiguities in the doctor’s prior medical certifications,

certifications that the doctor in any event repudiated. 

Bair began this process on July 5, 2012, when she applied for a medical

leave of absence and short term disability benefits during her lunch hour at work. 

(Doc. 25, ¶37.) Bair provided her on-site management with no advance notice of

her intention to immediately seek a leave of absence, and her bank manager only

learned of Bair’s plans through his corporate HR department. Bair then left work

the following day, July 6, and commenced her medical leave almost immediately

thereafter, thus impeding any on-site efforts at discussing reasonable

accommodations for her.

Upon receiving Bair’s request for a leave of absence and short term

disability benefits, Citizens Bank’s third party vendor Aon Hewitt sent Bair a

letter dated July 6, 2012. (Id., ¶45.) This correspondence included information

regarding her rights under the FMLA to up to twelve (12) weeks of unpaid, job

protected leave, and directed Bair to take a FMLA Certification Form

(“Certification”) to her physician to support her requested leave of absence. The

letter also informed Bair that the “completion and submission of this form is

required in addition to applying for any applicable STD/workers’ compensation

benefits.” (Id., ¶45.) While this correspondence was issued by Aon Hewitt, a

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third party vendor, there was nothing in the correspondence that would have

alerted Bair that she was not communicating directly with her employer, a factor

which may have contributed to subsequent confusion in this case.

Bair promptly delivered this certification form to her physician, Dr.

Kopinski, to complete and the doctor completed the form and returned it on July

26, 2012. (Id., ¶¶48-49.) The July 26, 2012, form completed by Dr. Kopinski in

support of Bair’s claim for leave and disability benefits, reported that she suffered

from “chronic back pain [and] significant scoliosis of lumbar and thoracic back

pain.” (Doc. 26-1, p.48.) That form also indicated that Bair had become unable to

work due to this condition on July 2, 2012. (Id.) The disability health care

provider certification, however, went on to state in Section 3 that Bair could work

but could not perform her current job, explaining that she was restricted from

“stand[ing] or sit[ting] prolonged times.” (Id.) 

Because Bair had initially sought leave and disability benefits, rather than

any workplace accommodation, the doctor’s July 26 certification raised questions

concerning the degree of Bair’s disability. Therefore, on July 27, 2012, Bair was

asked to provide additional information in connection with this certification, and

was specifically told that “Sec. 3 [the portion of the form relating to Bair’s ability

to work] needs to be corrected.” (Doc. 25, ¶¶51-52.) Bair also recalls speaking

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with someone associated with this disability process at this time in August 2012

and being informed that her disability and medical leave application should state

that she is unable to work. (Doc. 25, ¶¶56-58.) According to Bair she relayed this

information to Dr. Kopinski who subsequently supplied a revised medical

certification form on or about August 2, 2012, which provided return to work date

of July 2, 2013, one year after the alleged onset of Bair’s disability. 

Liberty Mutual, the short term disability program claims processor used by

Citizens Bank, initially denied Bair’s short term disability claim on August 13,

2012, and informed Bair of her right to appeal this decision. Following the denial

of this claim, at Bair’s request, Dr. Kopinski completed another certification form

dated August 14, 2012, on which she checked a different box in Section 3,

indicating that Bair “cannot do any work.” (Id.) After August 2012, Bair’s

medical communications with Citizens Bank consistently represented that she was

totally disabled and was unable to perform any work whatsoever. (Doc. 25, ¶¶54-

55.) These communications by Dr. Kopinski were consistent with Bair’s stated

wishes to the doctor which were focused on Bair’s pursuit of disability benefits. 

Thus, on August 17, 2012, Dr. Kopinski’s notes reflected that Bair visited the

doctor to discuss the denial of her disability benefits. (Id., ¶59.) 

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On or about August 20, 2012, Citizens informed Bair that it approved her

FMLA leave from July 9, 2012, through September 30, 2012. (Id., ¶60.) While

Bair received this medical leave, she continued to actively pursue disability

benefits, appealing the denial of her disability benefits with Liberty Mutual in

September 25, 2012. (Id., ¶61.) 

This appeal was unavailing and on October 11, 2012, the bank sent Bair a

letter informing her that it received notice from Liberty Mutual that her disability

claim had been denied, and that she had 180 days to appeal the decision. This

letter also informed Bair that, while she was not eligible for additional leave under

the FMLA, she may be eligible for a reasonable accommodation to enable her to

return to work pursuant to the Americans With Disabilities Act (“ADA”). The

correspondence, invited Bair to participate in a reasonable accommodation

process; explained that reasonable accommodations under the ADA may include

“additional time away from work, a modified work schedule, or job restructuring

or reassignment, among other things;” and informed Bair that, if she wished to

apply for a reasonable accommodation, she should contact Erika House in the

Leave Program Office and ask her health care provider to supply supporting

documentation about her disability. (Id., ¶¶63-64.) The correspondence also

enclosed a copy of a letter for Bair to give to her health care provider, which

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explained that Bair was employed as an Advanced Teller, and that Citizens was

“attempting to ascertain whether any reasonable accommodations exist that will

enable our colleague to perform the essential functions of his/her position.” The

letter requested that the health care provider return a form titled “Request for

Medical Information” via a confidential fax number. (Id., ¶65.)

Dr. Kopinski submitted this certification form to the bank on October 17,

2012. (Id., ¶68.) Bair has attested that she never reviewed the doctor’s form prior

to its submission. However, the doctor’s medical submission provided in response

to the bank’s request for information concerning whether reasonable

accommodations could be made for Bair’s medical condition flatly stated that

there were no reasonable accommodations which could be provided to Bair in the

doctor’s opinion. For example, in this certification Dr. Kopinski stated that Bair

had scoliosis, which was “indefinite,” and that she was “unable to stand or sit

greater than 30 minutes.” (Id., ¶69.) Further, in response to a question which

asked ?[a]re there any accommodations that in your opinion will enable the

employee to perform the essential functions of his/her position? If so, please

describe in detail the requested accommodation. If the accommodation suggested

is a leave of absence, please specify.” Dr. Kopinski replied: “No. Patient bank

teller. Has to stand and sit for prolonged periods.” (Id.) Dr. Kopinski repeated

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her view that no reasonable accommodation was possible in Bair’s case when she

responded to a follow-up question on this form which asked her to “describe how

the suggested accommodation will enable the employee to perform the essential

function(s) of his/her position,” stating that efforts at identifying an

accommodation were “not applicable” due to the inability to accommodate Bair’s

disability. (Id., ¶69.)

Presented with this medical statement denying that any reasonable

accommodation was possible in Bair’s case, Erika House, the bank’s HR manager

assigned to this matter nonetheless attempted to discuss reasonable

accommodations with Bair, and spoke with Bair several times by telephone. 

These efforts undertaken by the bank in order to try to identify a reasonable

accommodation were hobbled by mutual misunderstandings, and the fact that each

party was viewing this matter through the prism of their own perspective. or Ms.

House, who did not have the benefit of prior communications by Bair to Aon

Hewitt or Liberty Mutual, the bank’s horizons and options were largely defined by

Dr. Kopinski’s certification, which stated that reasonable accommodations were

not possible for Bair. Bair’s perspective, in turn, was clouded by the fact that she

was still actively pursuing disability benefits, and she had not read Dr. Kopinski’s

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certification which stated that there was no reasonable accommodation possible in

her case.

With these incomplete understandings, House and Bair engaged in an

exchange which was wholly unsuccessful. For her part, House emphasized to Bair

that if no reasonable accommodation was possible the bank would be forced to

terminate Bair. Bair, in turn, described herself as disabled in these conversations,

and never sought or requested any specific form of accommodation. Instead, Bair

has stated that she emphasized to House that she could only perform work in

accordance with Dr. Kopinski’s instructions, unaware that Dr. Kopinski had

informed the bank that there was no reasonable accommodation possible in Bair’s

ccase. ( Compare, Docs. 26-1 with 26-3.) For Bair, this reference to her doctor’s

instructions may have been meant to suggest that she needed a sit-stand option at

work, but for House, who had been informed in writing by the doctor that no

reasonable accommodation was possible, Bair’s insistence that she could only do

what the doctor stated was tantamount to an announcement that accommodation

was impossible in this case.

Ultimately, the bank informed Bair that the option suggested by Dr.

Kopinski, an indefinite medical leave of absence, was not a reasonable

accommodation which it could make and terminated Bair’s employment. The

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letter informing Bair of this decision also explained that, should the denial of

Bair’s disability claim be overturned, Citizens would approve Bair’s leave of

absence and reinstate her. Further, this correspondence explained that, if the

decision to deny Bair’s disabilitywas upheld after her appeal, and Bair’s physician

subsequently released her to return to work, Bair could reapply for employment

with Citizens. (Id., ¶77.) 

Bair never pursued these options. Nor did Bair ever inform the bank after

receiving this correspondence of the position she now takes in this litigation, that

she could have been accommodated through measures short of an indefinite leave

of absence. Thus, following this notification, Bair was in contact with Ms. House

on three occasions, and met with Mr. Blackburn to return her keys. In none of

these instances did Bair seeks any workplace accommodation or correct what she

now states was the bank’s misunderstanding that she was requesting an indefinite

medical leave of absence. (Id., ¶¶80-81.) 

Indeed, Bair’s attitude towards her ability to return to work at this time was

aptly summarized by the plaintiff herself in the following exchange which she had

in her deposition in this case: “Q. After you received the termination letter . . . ,

did you ever indicate to Erika House that you were able to return to work? A. No,

because I was not able to return to work.” (Id., ¶82.) Bair has consistently

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adhered to the view that she was disabled after July 2012, and was unable to

engage in productive activity. Thus, following her termination, Bair declined two

jobs in the banking industry citing her disability. (Id., ¶¶ 90-94.) Bair also

applied for social security disability benefits, attesting that she had become

disabled in July of 2012, and was unable to work after that date. (Id., ¶¶100-102.)

It is against this factual backdrop that we consider Bair’s ADA claims.

B. Procedural History

On November 25, 2013, Bair commenced this action by filing a two count

complaint against Citizens’ Bank, alleging a failure to accommodate and wrongful

termination in violation of the Americans with Disabilities Act (ADA). (Doc. 1.) 

At the close of discovery, the defendant moved for summary judgment. (Doc. 23.) 

This motion is fully briefed, (Doc. 24-30.), and is, therefore, ripe for resolution. 

For the reasons set forth below, it is recommended that the motion for

summary judgment be granted.

III. Discussion

A. Summary Judgment– Standard of Review

Rule 56(a) of the Federal Rules of Civil Procedure provides as follows:

A party may move for summary judgment, identifying

each claim or defense – or the part of each claim or

defense – on which summary judgment is sought. The

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court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law. 

The court should state on the record the reasons for

granting or denying the motion.

Fed. R. Civ. P. 56(a). For purposes of Rule 56, a fact is material if proof of its

existence of nonexistence might affect the outcome of the suit under the applicable

substantive law. Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d

408, 412 (3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). For an issue to be genuine, “all that is required is that sufficient

evidence supporting the claimed factual dispute be shown to require a jury or

judge to resolve the parties’ differing versions of the truth at trial.” Id. (quoting

Anderson, 477 U.S. at 248-49).

Accordingly, in support of a motion for summary judgment, the moving

party must show that if the evidence of record were reduced to admissible

evidence in court, it would be insufficient to allow the non-moving party to carry

its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 323 (1986). Provided

the moving party has satisfied this burden, “its opponent must do more than

simply show that there is some metaphysical doubt as to the material facts.” Scott

v. Harris, 550 U.S. 372, 380 (2007). Instead, if the moving party has carried its

burden, the non-moving party must then respond by identifying specific facts,

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supported by evidence, which show a genuine issue for trial, and may not rely

upon the allegations or denials of its pleadings. See Martin v. Godwin, 499 F.3d

290, 295 (3d Cir. 2007); see also Fed. R. Civ. P. 56(c). 

In adjudicating the motion, the court must view the evidence presented in

the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and

draw all reasonable inferences in the light most favorable to the non-moving party,

Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d

Cir. 1992). Where the non-moving party’s evidence contradicts the movant’s,

then the non-movant’s must be taken as true. Id. Additionally, the court is not to

decide whether the evidence unquestionably favors one side or the other, or to

make credibility determinations, but instead must decide whether a fair-minded

jury could return a verdict for the plaintiff on the evidence presented. Id. at 252;

see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the

Third Circuit has instructed that:

To raise a genuine issue of material fact . . . the opponent

need not match, item for item, each piece of evidence

proffered by the movant. In practical terms, if the

opponent has exceeded the “mere scintilla” threshold and

has offered a genuine issue of material fact, then the

court cannot credit the movant’s version of events

against the opponent, even if the quantity of the

movant’s evidence far outweighs that of its opponent. It

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thus remains the province of the factfinder to ascertain

the believability and weight of the evidence.

Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier

of fact to find for the non-moving party, there is no genuine issue for trial.” 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(internal quotation marks omitted); NAACP v. North Hudson Reg’l Fire &

Rescue, 665 F.3d 464, 476 (3d Cir. 2011).

B. ADA Guiding Principles

Under the ADA, “no covered entity shall discriminate against a qualified

individual with a disability because of the disability of such individual in regard to

job application procedures, the hiring, advancement or discharge of employees,

employee compensation, job training, and other terms, conditions, and privileges

of employment.” 42 U.S.C. § 12112(a). The ADA defines a qualified individual

with a disability as a person “with a disability 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). Further, the Act

defines a “disability” to mean “(A) a physical or mental impairment that

substantially limits one or more of the major life activities of [an] individual; (B) a

record of such an impairment; or (C) being regarded as having such an

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impairment.” 42 U.S.C. § 12102(2). In this case, the parties agree, at least for

purposes of summary judgment, that the plaintiff’s long-standing diagnosis of

scoliosis constitute a disability that would fall within the protections of the ADA. 

Nartey Nolan v. Siemens Med. Solutions USA, Inc., No. 5:13-CV-713 BO, 2015

WL 641660, at *1 (E.D.N.C. Feb. 16, 2015), appeal dismissed (May 11,

2015)(scoliosis disabling).

To establish a prima facie case of discrimination or wrongful termination

under the ADA, a plaintiff must show that: (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;

and (3) she has suffered an otherwise adverse employment decision as a result of

discrimination.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.

1999) (quoting Gaul v. Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 1998)

(citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996))) (internal quotation

marks omitted); see also Williams v. Philadelphia Housing Auth. Police Dept., 380

F.3d 751, 761 (3d Cir. 2004). 

“Adverse employment decision[s]” under the ADA may include not only

termination of a plaintiff’s employment, but also an employer’s refusal to make

reasonable accommodations for a plaintiff’s disabilities. See id. In this regard, the

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ADA specifically provides that an employer “discriminates” against a qualified

individual with a disability when the employer does “ ‘not mak[e] reasonable

accommodations to the known physical or mental limitations of the individual

unless the [employer] can demonstrate that the accommodation would impose an

undue hardship on the operation of the business of the [employer.’ ” Taylor, 184

F.3d at 306 (quoting 42 U.S.C. § 12112(b)(5)(A)) (alterations in original). 

If a plaintiff meets this initial burden, the court also needs to consider

whether the plaintiff has come forward with direct or circumstantial evidence of

discrimination. If the plaintiff has direct evidence of discrimination, then the court

uses what is referred to as a “mixed motive” theory, meaning that the plaintiff

must show only that the allegedly unlawful motive was a substantial motivating

factor in the adverse employment action. Shellenberger v. Summit Bancorp, Inc.,

318 F.3d 183, 187 (3d Cir. 2003). However, in cases where a plaintiff has come

forward only with circumstantial evidence of discrimination, then the court uses a

pretext theory, which essentially tracks the burden shifting analysis first

announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also

Lawrence v. National Westminster Bank N.J., 98 F.3d 61, 68 (3d Cir. 1996) (in

ADA cases, courts apply the Title VII burden shifting analysis).

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Under McDonnell Douglas, once a plaintiff has established a prima facie

case of discrimination, the burden of production switches to the defendant, who

must “articulate some legitimate, nondiscriminatory reason” for the adverse

employment decision. McDonnell Douglas, 411 U.S. at 802. If the defendant

produces legitimate, nondiscriminatory reasons for its employment action, the

burden returns to the plaintiff to demonstrate that the defendant’s proffered

reasons are merely pretext for discrimination. Fuentes v. Perskie, 32 F.3d 759,

763 (3d Cir. 1994). In order to defeat a motion for summary judgment under this

framework, a plaintiff must identify some evidence from which a “factfinder 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.” Id. at 764. The

Third Circuit has explained that in order to prove pretext, a plaintiff may rely on,

inter alia, a defendant’s credibility or lack thereof, the timing of an employee’s

termination, and evidence of disparate treatment. See, e.g., Simpson v. Kay

Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998) (ADEA case)

(citing Fuentes, 32 F.3d at 765). Also potentially relevant is evidence of

inconsistent reasons provided as the basis for workplace discipline. See Zelinski

v. Pa. State Police, 108 F. App’x 700, 707 (3d Cir. 2004).

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C. The ADA’s Interactive Process Requirement

Beyond a finding of disability the essential elements of an ADA claim are

that the plaintiff “is otherwise qualified to perform the essential functions of the

job, with or without reasonable accommodations by the employer; and . . . she has

suffered an otherwise adverse employment decision as a result of discrimination.”

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). Thus,

proving that there was a reasonable accommodation for the plaintiff’s disability is

an element of the plaintiff’s case. 

Importantly, “[r]easonable accommodation” further “includes the

employer’s reasonable efforts to assist the employee and to communicate with the

employee in good faith.” Mengine v. Runyon, 114 F.3d 415, 416 (3d Cir. 1997). 

To achieve this goal of ascertaining whether a reasonable accommodation is

possible, courts have grafted a “duty to engage in the ‘interactive process’ ” onto

the ADA. Williams, 380 F.3d at 761. Thus, “ ‘[t]he ADA itself does not refer to

[an] “interactive process.” ’ Shapiro v. Township of Lakewood, 292 F.3d 356, 359

(3d Cir.2002). Rather, the text of the ADA requires only that an employer make a

reasonable accommodation to the known physical or mental disability of a

qualified person with a disability unless the employer can show that the

accommodation would impose an undue hardship on the employer. 42 U.S.C. §

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12112(b)(5)(A).” Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 329 (3d Cir.

2003). However, the applicable regulations provide that “[o]nce a qualified

individual with a disability has requested provision of a reasonable

accommodation, the employer must make a reasonable effort to determine the

appropriate accommodation. The appropriate reasonable accommodation is best

determined through a flexible, interactive process that involves both the employer

and the [employee] with a disability.” 29 C.F.R. pt. § 1630 app. 1630.9 at 359. 

The regulations also observe that “[t]o determine the appropriate reasonable

accommodation it may be necessary for the covered entity to initiate an informal,

interactive process with the qualified individual with a disability . . . [in order to]

identify the precise limitations resulting from the disability and potential

reasonable accommodations that could overcome those limitations resulting from

the disability and potential reasonable accommodations that could overcome those

limitations.” 29 C.F.R. § 1630.2(o)(3). 

The duty to engage in a meaningful interactive process is a reciprocal

responsibility. Both the employee and the employer must participate in this

process in good faith. Mills v. Temple Univ., 869 F. Supp. 2d 609, 622 (E.D. Pa.

2012). In short, “both parties have a duty to assist in the search for an appropriate

reasonable accommodation and to act in good faith.” Conneen v. MBNA Am.

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Bank, N.A., 334 F.3d 318, 330 (3d Cir. 2003). The Third Circuit has explained

that the “interactive process must include sufficient notice to inform the employer

that an employee is requesting an accommodation followed by good faith

participation of the employer and employee in that interactive process.” Conneen

v. MBNA America Bank, N.A., 334 F.3d 318, 330 (3d Cir. 2003). In order for a

plaintiff to hold an employer liable for a breakdown in this mandatory interactive

process, she must show that (1) the employer knew about her disability; (2) she

requested accommodations or assistance for this disability; (3) the employer did

not make a good faith effort to assist her in seeking accommodations; and (4) she

could have been reasonably accommodated but for his employer’s lack of good

faith. Conneen, 334 F.3d at 330-31.

In this regard, “ ‘[t]he law does not require any formal mechanism or ‘magic

words,’ to notify an employer . . . that an employee needs an accommodation. 

Taylor, 184 F.3d at 313.” Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 332

(3d Cir. 2003). However, what is required is that the plaintiff provide her

employer with notice of a disability and request a reasonable accommodation for

this known disability. Id. “A statement by an employee that she is disabled or has

been diagnosed with a disease or disorder, without more, is insufficient to

constitute a request for an accommodation. Taylor, 184 F.3d at 313; Prigge v.

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Sears Holding Corp., No. 09–175, 2010 WL 2731589, at *8 (E.D.Pa. July 9,

2010).” Bielich v. Johnson & Johnson, Inc., 6 F. Supp. 3d 589, 617 (W.D. Pa.

2014). Instead, “an employee ‘“must make clear that the [he/she] wants assistance

for his or her disability’ in order to trigger an employer's duty to engage in the

interactive process. Conneen, 334 F.3d at 332 (internal quotation marks

omitted).” Willis v. Norristown Area Sch. Dist., 2 F. Supp. 3d 597, 608-09 (E.D.

Pa. 2014). This burden cannot be met simply through a request for FMLA leave

since a request for medical leave does not equate with a disability accommodation

request. See Chapman v. UPMC Health Sys., 516 F. Supp. 2d 506, 534 (W.D. Pa.

2007).

Further, the ADA only requires employers to consider reasonable

accommodations and it is well-settled that: “ ‘Not all requested accommodations

are appropriate, and the ADA only “provides a right to reasonable accommodation,

not to the employee's preferred accommodation.” ’ Aquart v. Ascension Health

Info. Serv., No A–09–CA–804, 2011 WL 233587, at *6 (W.D.Tex. Jan. 24, 2011)

(quoting EEOC v. Agro. Distrib., LLC, 555 F.3d 462, 471 (5th Cir.2009)); see

Bielski v. Green, 674 F.Supp.2d 414, 424 (W.D.N.Y.2009) (employee cannot insist

on particular accommodation if employer provides another reasonable

accommodation instead) (collecting decisions).” Stadtmiller v. UPMC Health Plan,

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Inc., 799 F. Supp. 2d 492, 509 (W.D. Pa. 2011) aff'd, 491 F. App'x 334 (3d Cir.

2012). Thus, when considering what is a reasonable accommodation under the

ADA “[i]t is utterly unreasonable and not within the mandate of the ADA to expect

an employer to accommodate an employee with an indefinite leave of absence.” 

Reifer v. Colonial Intermediate Unit 20, 462 F. Supp. 2d 621, 636 (M.D. Pa. 2006). 

In short, “ ‘[t]he weight of authority in the [Third Circuit], as well as other Circuits,

clearly establishes that a leave of absence for an indefinite duration is not a

reasonable accommodation.’ Garner, 63 F.Supp.3d at 492 (collecting cases); Reifer

v. Colonial Intermediate Unit 20, 462 F.Supp.2d 621, 636 (M.D.Pa.2006).” 

Henderson v. Edens Corp., No. CV 09-1308, 2015 WL 4977189, at *8 (E.D. Pa.

Aug. 20, 2015).

Where the undisputed evidence reveals that an employee has failed to fulfill

her obligations to engage in a meaningful interactive process, an employer is

entitled to judgment as matter of law on any ADA claim. See Conneen v. MBNA

Am. Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003) Furthermore, it is also clear that

the alleged inadequacy of an interactive process, standing alone, will not support an

ADA claim. Quite the contrary, an alleged “failure to participate in the interactive

process is not a ground for liability unless the employee has proven a failure to

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accommodate.” Whelan v. Teledyne Metalworking Products, 226 F. App'x 141,

147 (3d Cir. 2007).

D. Bair’s ADA Claims Fail

While we accept that Bair’s medical condition, scoliosis, would qualify as a

disability for purposes of the ADA, and acknowledge that the loss of employment 

constitutes an adverse employment action, we conclude that Bair’s case fails as a

matter of law because she has not shown any actionable discrimination by Citizens

Bank based upon her disability. As we have noted, to prove these ADA claims 

plaintiff must show that she “is otherwise qualified to perform the essential

functions of the job, with or without reasonable accommodations by the employer;

and . . . she has suffered an otherwise adverse employment decision as a result of

discrimination.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.

1999). Thus, proving that there was a reasonable accommodation for the plaintiff’s

disability is an element of the plaintiff’s case. Where, as here, a plaintiff’s ADA

claims rest upon a failure of this interactive process, in order for a plaintiff to hold

an employer liable for a breakdown in this mandatory interactive process, she must

show that (1) the employer knew about her disability; (2) she requested

accommodations or assistance for this disability; (3) the employer did not make a

good faith effort to assist her in seeking accommodations; and (4) she could have

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been reasonably accommodated but for his employer’s lack of good faith. 

Conneen, 334 F.3d at 330-31.

In this case, Bair had not shown that the bank discriminated against her by

refusing to participate in a meaningful interactive process with the plaintiff. Quite

the contrary, judged against the legal benchmarks which govern such claims, Bair’s

ADA claims fail as a matter of law because the undisputed evidence shows, at

most, a flawed interactive process in this case, and a flawed process where much of

the responsibility for the shortcomings in this process rests squarely with the

plaintiff.

In this regard, the undisputed evidence shows that, when Bair’s duties

changed in 2011 she complained of back pain but never sought any reasonable

accomodations of her back condition from her on-site managers at the bank. 

Indeed, Bair has repeatedly acknowledged that she made no such requests for

accommodation from her bank manager from 2011 until she left on a sudden

medical leave on or about July 6, 2012. In fact, when Bair first applied for a leave

of absence on July 5, she did so without telling her manager, who only learned of

Bair’s decision to seek a leave of absence from corporate HR as she left. Bair’s

complete failure to initiate this inter-active dialogue with her employer, frustrated

and impeded any effort to try to accommodate her needs with the demands of the

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workplace. While we acknowledge that “circumstances will sometimes require

‘[t]he employer ... to meet the employee half-way, and if it appears that the

employee may need an accommodation but doesn't know how to ask for it, the

employer should do what it can to help,’ ” it is entirely undisputed that as a legal

matter “either by direct communication or other appropriate means, the employee

‘must make clear that the [he/she] wants assistance for his or her disability.’ Jones

v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir.2000). The employer must have

enough information to know of ‘both the disability and desire for an

accommodation,’ Taylor, 184 F.3d at 313.” Conneen v. MBNA Am. Bank, N.A.,

334 F.3d 318, 332 (3d Cir. 2003). 

Here, we find that Bair’s complaints of back pain prior to July 2012,

complaints that Bair acknowledges were unaccompnaied by any request for an

accommodation of her duties, were insufficient to satisfy Bair’s duty to initiate an

interactive process. We also note, as Bair herself has conceded, that even in the

absence of any request for accommodations, accommodations were, in fact, made

for Bair by bank management at her branch office, in that Bair and other female

employees were exempted from the heaviest of work tasks at the branch office. 

Thus, although Bair never requested any particular accommodation prior to her

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sudden departure from work in July 2012, some accommodations were made by for

her by her employer.

Further, once Bair applied for a leave of absence, and began actively

pursuing disability benefits, her communications with Citizens Bank did not fulfill

her duty to alert her employer to her request for reasonable accommodations under

the ADA. At the outset, it was apparent that Bair was actively seeking a leave of

absence and disability benefits in July of 2012, rather than a reasonable

accommodation under the ADA. Thus, Bair first framed her requests to her

employer in terms of FMLA leave, and sought a finding that she was disabled. 

Neither an FMLA leave request, nor a characterization by a employee of her

condition as disabling satisfies the ADA’s requirement that a worker seek a

reasonable accommodation. See, e.g.,Chapman v. UPMC Health Sys., 516 F.

Supp. 2d 506, 534 (W.D. Pa. 2007); Bielich v. Johnson & Johnson, Inc., 6 F. Supp.

3d 589, 617 (W.D. Pa. 2014). Quite the contrary, oftentimes the premise behind

such requests is the notion that the employee can no longer work, a position which

is inconsistent with a reasonable accommodation request, which is typically

premised on the idea that the employee is actively seeking to continue her work.

The idea that Bair was completely disabled was precisely what was

repeatedly conveyed to Citizens Bank by Bair during this process. Thus, while Dr.

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Kopinski’s initial July 2012 medical certification submitted in support of Bair’s

leave and disability applications contained some language suggesting that Bair

needed to frequently shift from sitting to standing for her work, when the doctor

was questioned about this text, she underscored that Bair was totally precluded

from working due to her back condition. Dr. Kopinski took this step in August

2012, and declared Bair unable to work, after consulting with Bair, in an effort to

support Bair’s disability application. Therefore, it is apparent that the doctor’s

revised medical certification, which described Bair as completely disabled, was

prepared with the knowledge and consent of the plaintiff. While Bair also suggests

that she took this course after speaking with some unidentified bank HR employee,

that assertion does not change the fact that at the time when these conversations are

alleged to have occurred in July and August 2012, Bair was not pursuing a

reasonable workplace accommodation. Instead, she was seeking disability benefits. 

In the context of what Bair was seeking at this time–disability benefits–her

statement that than unidentified bank HR representative told her that he disability

application should state that she was disabled was perfectly reasonable advice. 

The uncontested evidence also shows that Bair’s focus did not shift from

disability and medical leave concerns to workplace accommodations until some

two months later, in October 2012, after her FMLA leave expired and Liberty

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Mutual rejected her application for disability benefits. At that time, Citizens Bank

fulfilled “to meet the employee half-way,” Conneen v. MBNA Am. Bank, N.A.,

334 F.3d 318, 332 (3d Cir. 2003), by initiating this interactive process and asking

Bair to provide any information which she possessed regarding reasonable

accommodations which could be made for her. Bair’s response to this reasonable

accommodation request was to seek out a doctor’s medical certification. This

submission, provided in response to the bank’s request for information concerning

whether reasonable accommodations could be made for Bair’s medical condition,

flatly stated that there were no reasonable accommodations which could be

provided to Bair in the doctor’s opinion. For example, in this certification Dr.

Kopinski stated that Bair had scoliosis, which was “indefinite,” and that she was

“unable to stand or sit greater than 30 minutes.” (Doc 25, ¶69.) Further, in

response to a question which asked ?[a]re there any accommodations that in your

opinion will enable the employee to perform the essential functions of his/her

position? If so, please describe in detail the requested accommodation. If the

accommodation suggested is a leave of absence, please specify.” Dr. Kopinski

replied: “No. Patient bank teller. Has to stand and sit for prolonged periods.” Dr.

Kopinski repeated her view that no reasonable accommodation was possible in

Bair’s case when she responded to a follow-up question on this form which asked

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her to “describe how the suggested accommodation will enable the employee to

perform the essential function(s) of his/her position,” stating that efforts at

identifying an accommodation were “not applicable” due to the inability to

accommodate Bair’s disability. (Id., ¶69.)

While we understand that Bair alleges that she was unaware of the content of

this medical certification, Bair can hardly fault the bank for accepting this medical

certification at face value when assessing what accommodations were now

possible. In any event, presented with this medical statement denying that any

reasonable accommodation was possible in Bair’s case, Erika House, the bank’s

HR manager assigned to this matter nonetheless attempted to discuss reasonable

accommodations with Bair, and spoke with Bair several times by telephone. These

efforts undertaken by the bank in order to try to identify a reasonable

accommodation were hobbled by mutual misunderstandings, and the fact that each

party was viewing this matter through the prism of their own perspective. For Ms.

House, who did not have the benefit of prior communications by Bair to Aon

Hewitt or Liberty Mutual, the bank’s horizons and options were largely defined by

Dr. Kopinski’s October 2012 medical certification, which stated that reasonable

accommodations were not possible for Bair. Bair’s perspective, in turn, was

clouded by the fact that she was still actively pursuing disability benefits, and she

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had not read Dr. Kopinski’s certification which stated that there was no reasonable

accommodation possible in her case. Thus, in her conversations with Ms. House,

Bair acknowledges that she never requested any workplace accommodations from

House. Instead, she described herself as disabled, and told the bank that she could

only work in accordance with the doctor’s limitations, limitations that in October

2012 stated that Bair suffered from a disability of indefinite duration which could

not be accommodated in any fashion. 

Presented with this information from Bair and her doctor, the bank

reasonably concluded that the relief apparently sought by Bair, a medical leave of

indefinite duration that was “ ‘not a reasonable accommodation.’ Garner, 63

F.Supp.3d at 492 (collecting cases); Reifer v. Colonial Intermediate Unit 20, 462

F.Supp.2d 621, 636 (M.D.Pa.2006).” Henderson v. Edens Corp., No. CV 09-1308,

2015 WL 4977189, at *8 (E.D. Pa. Aug. 20, 2015). While Bair complains that the

bank accepted at face value what her doctor stated in October 2012, and failed to

consider the doctor’s earlier, and repudiated, July 2012 submission in support of

Bair’s disability application in reaching its decision, we believe that this argument

fails for several reasons.

First, Bair’s argument ignores the fact that Bair had an affirmative duty to

engage in this interactive process, and it was Bair who obtained the October 2012

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medical certification which stated that the plaintiff could not work, and that

accommodation of her condition was impossible. In this setting, where the plaintiff

has a duty to make her needs and proposed accommodations known to her

employer, that employer cannot be faulted for assuming that Bair meant what her

doctor said–that no accommodation of her condition was possible. 

Second, Bair’s reliance on the earlier and repudiated July 2012 certification

from Dr. Kopinski ignores several crucial facts. First, this certification was not

provided in connection with a reasonable accommodation request. Rather, it was

submitted in connection with disability and leave requests. Second, by August

2012, Dr. Kopinski had recanted this initial certification and had stated that Bair

was completely disabled from working. Finally, this initial, recanted July 2012

medical certification was three months old and was out-dated by the time Citizens

Bank began this interactive process with Bair in October 2012. Therefore, the bank

could justifiably rely upon the most recent medical pronouncements made by Bair’s

doctor, in response to question specifically tailored to determine if an ADA

accommodation was possible, when engaging in this interactive process. 

Further, we note that, even after the bank communicated to Bair that it

understood her accommodation request to be a request for indefinite medical leave,

which the bank deemed unreasonable, Bair never took the simple affirmative step

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of stating that her needs could be accommodated through a sit-stand option at

work, the accommodation she now claims was denied her. Bair’s failure to ever

identify this potential accommodation, even after she was informed that the bank

understood that she was seeking an indefinite leave of absence, is completely

antithetical to the reciprocal duties which she as an employee owed to the bank

under the ADA’s interactive process. 

In short, at many turns when Bair had the opportunity to engage in an

interactive process aimed at accommodating her disability Bair either declined to

do so, or provided conflicting medical information to the bank, information which 

culminated in an unequivocal statement by her doctor that no accommodation of

her medical condition was possible. When the bank relied upon her doctor’s

statement to conclude that no accommodation was possible, Bair never clarified

what she now insists was an error, and never requested any accommodation. Bair’s

enigmatic approach to conveying her needs had, by October of 2012, effectively

required clairvoyance by the bank as part of this interactive process, a requirement

that the bank divine what she meant, even if that was not, in fact, what she said. 

Since “both parties have a duty to assist in the search for an appropriate reasonable

accommodation and to act in good faith,” Conneen v. MBNA Am. Bank, N.A., 334

F.3d 318, 330 (3d Cir. 2003), Bair’s repeated failures to engage in this process now

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preclude her from maintaining these ADA claims. Finding as we do that the

undisputed evidence fall short of proving workplace discrimination, but rather

simply illustrates a regrettable, but not actionable, break down in an interactive

process, a break down which was largely the result of the plaintiff’s own failure to

fully participate in that process, we recommend that the defendant’s motion for

summary judgment be granted, and this case be dismissed.

IV. Recommendation

Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED

THAT defendant’s motion for summary judgment (Doc. 23.) be GRANTED.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge’s proposed findings,

recommendations or report addressing a motion or matter described in

28 U.S.C § 636 (b)(1)(B) or making a recommendation for the

disposition of a prisoner case or a habeas corpus petition within

fourteen (14) days of being served with a copy thereof. Such party

shall file with the clerk of court, and serve on the magistrate judge and

all parties, written objections which shall specifically identify the

portion of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is

made and may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. The

judge, however, need conduct a new hearing only in his or her

discretion or where required by law, and may consider the record

developed before the magistrate judge, making his or her own

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determination on the basis of that record. The judge may also receive

further evidence, recall witnesses or recommit the matter to the

magistrate judge with instructions.

Submitted this 21st day of September 2015.

MARTIN C. CARLSON

Martin C. Carlson

United States Magistrate Judge

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