Pagonakis v. Express LLC, No. 08-1753 (3d Cir. Mar. 5, 2009)

By Paul Mollica

We close the week with a plaintiff’s ADA win in an unpublished Third Circuit opinion. The panel holds that the plaintiff presented a genuine issue of material fact in an ADA discrimination case about whether she could perform the essential functions of her job and whether she incurred an adverse employment action. On the latter issue, the court holds that denying a reasonable accommodation can itself be an “adverse” action.

Pagonakis v. Express LLC, No. 08-1753 (3d Cir. Mar. 5, 2009):  The employee worked in a mall clothing store.  Because of a head injury, the employee was beset by a variety of problems (vertigo, equilibrium, etc.) that the employer accommodated:  “[District Manager] Klancic allowed Pagonakis the requested accommodations which were: periodic breaks during a shift to allow Pagonakis to rest; scheduling Pagonakis on daylight shifts only (she cannot drive when it is dark or when it is raining, snowing or foggy); not assigning her to climbing tasks; not scheduling her to work for more than three to four days in a row; and periodically allowing her to work from home to compensate for the times when she could not drive to work due to weather.”

As she was promoted up the ranks from part-time sales clerk to co-manager, corporate HR called an end to the accommodations and demanded that she resubmit her requests through channels:

“Pagonakis states that at a November 25, 2003 meeting, Tara Kessler, Regional Human Resources Generalist for Express, explained that Klancic was not authorized to grant Pagonakis accommodations and that Pagonakis would need to submit medical documentation to human resources in order to reinstate the accommodations. Pagonakis asserts that she had presented doctors reports to Express in the past and that she tried to submit medical records to Kessler at the meeting, but Kessler refused to accept the documents. According to Pagonakis, Kessler directed her to contact the HR department within 24 hours to submit the paperwork.”

Around this time, plaintiff took a FMLA leave to cope with some of the symptoms of her condition (exacerbated, she said, by having to work without accommodations), and on return submitted her required medical documentation to obtain accommodations.  The company accepted the paperwork, but apparently took no steps to follow up. Meanwhile, she made a hard landing at work: “my supervisors and co-workers treated me in a disparaging manner, including by making rude comments to me . . . [and] frequently criticizing me for taking FMLA leave and humiliated me by overriding my directions to subordinate employees.”  Within six weeks, she took another leave and eventually resigned.

Plaintiff brought an ADA discrimination claim and retaliation claims under the ADA and FMLA. The district court granted summary judgment on all of them, but the Third Circuit reverse in part, remanding the discrimination claim while affirming the retaliation claims.

First, the panel found that there were genuine issues about what the essential functions of the co-manager job were under 29 C.F.R. § 1630.2(m):

“As a general matter, Pagonakis was promoted to Co-Manager by Klancic- the very person who granted Pagonakis her accommodations in the first place. Drawing a reasonable inference in favor of Pagonakis, a jury could find that Klancic would not have promoted Pagonakis to Co-Manager if her accommodations (which were in place at the time of her promotion) were inherently incompatible with the essential functions of the position.

“Moreover, while Express asserts that opening and closing the store is an essential function of the Co-Manager position, the record evidence suggests otherwise. First, according to Express’ own witness, Human Resources Manager Jennifer Hinkle, there is always a Manager, in addition to at least one Co-Manager on duty, and that Manager (or the second Co-Manager, if there was one on duty) would be able to open and close the store. . . . Second, Klancic testified that there were ‘a lot’ of co-managers (JA 3363), suggesting that the pool of people who could open or close the store was not dramatically limited by Pagonakis’ elimination from the pool.”

There was also a disputed issue of fact about whether it was an essential function for the co-manager to be physically located in the store 40 hours per week.

Likewise, there was an disputed issue about whether denying an accommodation itself constituted an adverse action.  “Pagonakis and Klancic testified that in November 2003 Express ceased accommodating Pagonakis, but Express denies that it ever stopped accommodating her. Express’ Human Resources manager states that ‘Express ultimately determined that it would provide the requested accommodations because [Pagonakis] had been accommodated in this manner for several years.’ (JA 79) (emphasis added).”  On this score, I am baffled by the absence of discussion of constructive discharge; the conditions described in the opinion (unhealthy work conditions and harassment by co-workers) would certainly seem to support it.