NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 19-2873 ________________

SUZANNE F. TIELLE,

Appellant

v.

THE NUTRITION GROUP

________________

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-17-cv-02417) District Judge: Honorable Malachy E. Mannion ________________

Submitted Under Third Circuit L.A.R. 34.1(a) April 14, 2020

Before: AMBRO, JORDAN and SHWARTZ, Circuit Judges

(Opinion filed: May 7, 2020)

________________

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. AMBRO, Circuit Judge

Suzanne Tielle sued her former employer, The Nutrition Group (“TNG”), under

the Americans with Disabilities Act (“ADA”),

, et seq., and the

Pennsylvania Human Relations Act (“PHRA”),

, et seq., alleging

TNG failed to accommodate reasonably her disability. Tielle further alleged TNG

terminated her because of her disability and in retaliation for requesting accommodations.

The District Court entered summary judgment for TNG on each of Tielle’s claims,

concluding that she failed to put forward sufficient evidence for a reasonable jury to find

in her favor. We agree and hence affirm.

I.1

Tielle was employed by TNG from 2009 to 2016 as head cook for a school

district. When she began to work for TNG in 2009, she informed TNG representatives,

including Regional Manager Patricia Baresse, that she had a knee injury. But Tielle did

not request any accommodation at that time.

In 2014, TNG employees observed Tielle using a food cart to support her weight

and assist her with walking. Baresse and other TNG employees met with Tielle in June

2014 and instructed her not to do this, noting that the cart could tip over, injuring her or

others. Tielle asked to use a cane, and TNG agreed. But TNG employees continued to

observe Tielle place her weight on the food cart.

1 As we write solely for the parties, only those facts necessary to our decision are set out below. The facts are set out in the light most favorable to Tielle, the non-movant. 2 In June 2015, Baresse asked Tielle whether she would be returning to work in the

fall. Tielle asked why, and—according to Tielle—Baresse responded, “because . . . of

your problem.” App. 88. And when Tielle said she would be returning, Baresse

responded, “well think about it over the summer . . . but you better be able to walk

better.”

Baresse returned to work in the fall of 2015. But in January 2016 Baresse and

other TNG employees again confronted Tielle about her continued use of the food cart to

support her weight. They warned her that continuing to do so would result in her

termination.

But Tielle continued as before. In November 2016, Baresse and other TNG

employees met with Tielle a third time. At this meeting, Tielle noted that “sometimes it

is just quicker to use the cart instead of the cane.” App. 148. Tielle attests that, during

this meeting, Baresse said “something about a liability,” but cannot recall whether

Baresse was referring to her or the food cart. App. 79. For her part, Baresse maintains

she told Tielle that “using the food cart to support her weight and assist her with walking

was a liability because it was unsafe.” App. 149. The same day, TNG terminated Tielle,

purportedly for failing on multiple occasions to follow instructions not to place her

weight on the food cart and to use her cane instead.

Tielle then brought suit. She alleged TNG failed to accommodate reasonably her

disability by refusing to allow her to use the food cart to assist her with walking. She

also alleged that her termination was in retaliation for requesting a reasonable

3 accommodation and/or because of her disability. Following discovery, the District Court

granted summary judgment to TNG on all claims.

II.2

The ADA3 requires an employer to “reasonab[ly] accommodat[e]” the disabilities

of its employees. Taylor v. Phoenixville Sch. Dist.,

(3d Cir. 1999)

(quoting

(b)(5)(A)). “Once a[n] . . . individual with a disability has

requested provision of a reasonable accommodation, the employer must make a

reasonable effort to determine the appropriate accommodation.”

(quoting 29 C.F.R.

Pt. 1630, App. § 1630.9 at 359).

We agree with the District Court that no jury could find TNG failed to

accommodate reasonably Tielle’s disability.4 She asked to use a cane to help her walk,

and TNG agreed to that reasonable accommodation. There is no evidence that Tielle

further requested to use the food cart to help her walk by placing her weight on it as

opposed to using it merely for the purpose it was intended, to transport items. At her

2 The District Court had jurisdiction under

and 1367. We have jurisdiction under

. Our review of the District Court’s grant of summary judgment is plenary. Elsmere Park Club, L.P. v. Town of Elsmere,

(3d Cir. 2008). 3 “The PHRA is basically the same as the ADA in relevant respects and ‘Pennsylvania courts . . . generally interpret the PHRA in accord with its federal counterparts.’” Rinehimer v. Cemcolift, Inc.,

(3d Cir. 2002) (omission in original) (quoting Kelly v. Drexel Univ.,

(3d Cir. 1996)). 4 TNG does not dispute, for purposes of this appeal, that Tielle’s knee injury was a disability within the meaning of the ADA and that she was otherwise qualified. Hence we assume that to be the case and decide only whether TNG failed to make a reasonable accommodation. 4 deposition, Tielle could not recall whether she ever “directly asked” to use the food cart

for this latter purpose. App. 180. Baresse attests that she did not. And when Baresse

confronted Tielle for a third time about placing her weight on the food cart rather than

using her cane, Tielle stated that “sometimes it is just quicker to use the cart instead of

the cane.” App. 148. On these undisputed facts, no jury could conclude that TNG acted

unreasonably in failing to offer Tielle the option of placing her weight on the food cart to

help her walk—a purpose for which the cart is not intended.5

III.

The District Court also properly entered summary judgment for TNG on Tielle’s

retaliation and discrimination claims. “To establish a prima facie case of retaliation

under the ADA, a plaintiff must show: (1) protected employee activity; (2) adverse action

by the employer either after or contemporaneous with the . . . protected activity; and (3) a

causal connection between the . . . protected activity and the . . . adverse action.” Krouse

v. Am. Sterilizer Co.,

(3d Cir. 1997). Similarly, to establish a prima

facie case of disability discrimination, a plaintiff must show “that she (1) has a disability;

(2) is a qualified individual; and (3) has suffered an adverse employment action because

of that disability.” Turner v. Hershey Chocolate U.S.,

(3d Cir. 2006)

(citations and internal quotation marks omitted).

5 In arguing that she should have been permitted to use the food cart to help her walk, Tielle points to testimony from her coworkers that they never saw the food cart tip over or otherwise saw her have an accident using it. But even accepting that testimony as true, it does not establish that TNG acted unreasonably in failing to offer Tielle to use the food cart for that purpose, given that she had not requested that accommodation and had been given permission to use a cane instead. 5 TNG does not contest the first two elements for either claim. As to retaliation,

TNG concedes that requesting an accommodation is a protected activity and termination

is an adverse action. As to discrimination, TNG concedes for purposes of this appeal that

she was disabled and otherwise qualified. What is disputed is the third requirement for

each claim: whether Tielle put forward sufficient evidence to establish a causal

connection between her termination and either her request for accommodations or her

disability.

We agree with the District Court that Tielle has not offered sufficient evidence for

a reasonable jury to find a causal connection. As to retaliation, as noted above, there is

no evidence that Tielle asked to use the food cart to help her walk. While she did ask to

use a cane, that request was granted. And it was granted two years before she was

terminated. See, e.g., Jones v. Se. Pa. Transp. Auth.,

(3d Cir. 2015)

(rejecting “suggestion that a gap of nearly three months” between the protected activity

and the adverse action is “unusually suggestive” of a retaliatory motive, such that it

satisfies a plaintiff’s prima facie case (citation omitted)). Likewise, as to discrimination,

TNG was aware of Tielle’s disability in 2009—approximately seven years before she was

terminated. In sum, the timing of Tielle’s termination does not suggest that it was

retaliation for her requesting an accommodation, or discrimination based on her

disability.

Beyond timing, Tielle points to Baresse’s comment on the day she was terminated

in November 2016 that her use of the food cart to help her walk was a “liability.” App.

6 79.6 Tielle also points to Baresse’s comment—more than a year earlier, in June 2015—

that Tielle should “think about” whether to come back in the fall, and that she “better be

able to walk better” if she did come back. App. 88. But the November 2016 comment

cannot reasonably be interpreted as discriminatory. And even if the June 2015 comment

could, the fact that Baresse said it more than a year before the termination renders it

insufficient, standing alone, to carry Tielle’s burden at summary judgment. See Ezold v.

Wolf, Block, Schorr & Solis-Cohen,

(3d Cir. 1992) (holding that a

single comment indicative of sex discrimination, made to the plaintiff five years before

the adverse action at issue, was not, standing alone, sufficient to meet the plaintiff’s

burden at summary judgment, and explaining that “[s]tray remarks . . . by decisionmakers

unrelated to the decision process are rarely given great weight, particularly if they were

made temporally remote from the date of decision”).

* * * * *

In sum, Tielle did not present sufficient evidence to meet her burden at summary

judgment. For her failure-to-accommodate claim, her reasonable request to use a cane to

help her walk was granted, and there is no evidence she requested to use a food cart for

that purpose. As to her retaliation and discrimination claims, the evidence is not

sufficient for a jury to find that her termination was causally connected to her request for

6 Tielle contends the District Court erred by crediting Baresse’s version of this comment: that Baresse was referring to Tielle’s use of the cart as a liability, not Tielle’s disability. But Tielle never genuinely disputed Baresse’s version, as she could not recall whether Baresse was referring to her disability, or her use of the food cart, when using the word “liability.” App. 79. 7 an accommodation or her disability. Hence we affirm the District Court’s entry of

summary judgment for TNG.

8