NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-3608 _____________

ROBERT GARDNER, Appellant

v.

SEPTA _______________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No.: 2:17-cv-04476) District Judge: Honorable Chad F. Kenney

Submitted under Third Circuit L.A.R. 34.1(a) July 2, 2020 (Filed: August 18, 2020)

Before: GREENAWAY, JR., SHWARTZ and RENDELL, Circuit Judges.

O P I N I O N*

RENDELL, Circuit Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Appellant Robert Gardner challenges two orders of the District Court, one

granting a partial motion to dismiss certain of his ADA claims and another granting

summary judgment for Appellee Southeastern Pennsylvania Transportation Authority

(SEPTA) on other claims. For the following reasons, we will affirm.

I. BACKGROUND

This case arises out of Gardner’s attempt to obtain disability accommodations

from his employer, SEPTA. Gardner began working for SEPTA in January 2014 as a bus

operator. On March 12, 2014, Gardner applied to transfer from his position as a bus

operator to a position operating a rail trolley. According to a collective bargaining

agreement (CBA) between the Transport Workers Union Local 234 City Transit Division

(Local 234) and SEPTA, SEPTA was obligated to consider transfer requests like

Gardner’s based on seniority. As a bus operator, Gardner was a member of Local 234

and covered by the CBA.

In August 2014, Gardner experienced a non-work-related motor vehicle accident.

As a result, he sought medical treatment, including neck and back surgery. On June 4,

2015, while operating a SEPTA bus, Gardner was involved in a work-related accident.

Gardner claims that this accident exacerbated his existing injuries.

Gardner reported to SEPTA that he suffered work-related injuries from the

accident and made a workers’ compensation claim for related medical treatment. On July

28, Dr. Lawrence Axelrod, SEPTA’s workers’ compensation physician, evaluated

Gardner. Dr. Axelrod determined that Gardner could return to work with restrictions and,

2 at Gardner’s request, specified that Gardner could operate rail vehicles but not buses.1

Based on Dr. Axelrod’s report, on July 31, 2015, SEPTA assigned Gardner to a

temporary, light-duty position.

On August 5, 2015, Gardner’s personal physician, Dr. Mark Allen, prepared a

document that stated Gardner was “capable of driving a trolley car only.” App. 441.

When Gardner again met with Dr. Axelrod on August 11, 2015, Axelrod reported that

Gardner gave him the August 5 form signed by Allen, and asked Axelrod to identically

reproduce the restrictions Allen had identified.

On September 2, 2015, Gardner submitted a request for accommodation under the

ADA. He claimed that, due to the injuries he sustained in the June 4 bus accident, which

caused limitations on his ability to perform arm and hand motions, he was disabled and

required accommodation. He specifically sought transfer to a trolley operator position,

which he believed would cause less physical stress. In support of the request, Gardner

submitted a “Physical Capacities Form,” App. 440, from Dr. Allen noting arm and hand

limitations and the document indicating that he was “capable of driving a trolley car

only,” App. 441. At that time, Gardner was number 35 of 37 on the seniority list for

transfers to trolley operator positions.

1 Dr. Axelrod observed in his notes that, given Gardner’s prior request for a transfer to operating rail vehicles, Axelrod “felt compelled to consider the possibility that Mr. Gardner was displaying intentional manipulative type behaviors.” App. 422. In a subsequent visit on August 11, Axelrod specifically informed Gardner that he “could not discern any significant difference in the physical capabilities” for operating rail vehicles versus buses, but Gardner “repeated his requests/demands that [Axelrod] disqualify him specifically from driving a bus and to allow him to operate . . . rail vehicles.” Id.

3 On September 4, 2015, Jacqueline Hopkins, an ADA compliance consultant in

SEPTA’s Equal Employment Opportunity (EEO) department, spoke with Gardner by

phone about his request. Gardner followed up with an email, in which he reiterated his

desire to be transferred to a trolley operator position and asked SEPTA to make an

exception to the seniority requirements, which he believed SEPTA had done in the past.

Hopkins responded that the transfer process is governed by the CBA and separate from

the process of identifying an appropriate accommodation.

On September 17, Gardner submitted a note from Dr. Allen dated September 16.

The note stated that “Mr. Gardner is cleared to return to full duties a[t] work.” App. 492.

On September 24, Hopkins wrote to Gardner, seeking clarification about the differing

opinions from Dr. Allen. In response, Gardner submitted two Physical Capacities Forms

from Dr. Allen and a Dr. Soto, both identifying the same restrictions noted in the

documents attached to Gardner’s original request. On September 30, Gardner submitted

another report from Dr. Allen that said Gardner’s condition was “[u]nchanged.” App.

497–98. That report was dated September 16—the same date as the note that said

Gardner could return to full duties.

On September 29 and 30, while SEPTA was considering the accommodation

request, Gardner submitted Operator’s Accident/Incident Reports, which asserted that he

could not operate a bus safely because of his disabilities. In response to the Incident

Reports, Gardner was put on sick leave on September 30 because his representations

indicated that he was “not fit for duty” under the CBA. App. 504 (emphasis omitted).

4 The Assistant Director for SEPTA’s Southern District told Gardner he could return if he

provided the required medical clearance.

On October 1, 2015, Hopkins wrote to Gardner to acknowledge receipt of

materials he sent on September 30 and to invite him to meet with her in person along

with SEPTA Medical Director Dr. Jeffery Erinoff and Director of EEO/AA and

Employee Relations Lorraine McKenzie. On the same day, Gardner filed a charge of

discrimination with the Equal Employment Opportunity Commission (EEOC) and the

Pennsylvania Human Relations Commission (PHRC). SEPTA did not receive notice of

that charge until November 16.2 On October 5, Gardner filed a grievance against SEPTA

through Local 234, protesting the failure to grant him the requested accommodation. In

emails with SEPTA, however, it became clear that there were conflicting views within

the union about circumventing the CBA to allow the requested transfer, with the

President of Local 234 opposing such an action.

On October 7, Gardner met with Hopkins, Erinoff, and McKenzie. At that

meeting, according to Gardner, Hopkins indicated that SEPTA would not be prepared to

grant his request until he appeared for an independent medical evaluation (IME)

scheduled by SEPTA’s Workers’ Compensation Department. On October 28, Hopkins

2 In December 2015, the EEOC responded to Gardner’s October 2015 charge, which had alleged discrimination and retaliation for seeking accommodation for his arm and hand disability. The letter requested any additional information to support the investigation and to rebut SEPTA’s response to the initial charge. Gardner responded seeking a continued investigation and mentioned issues with post-traumatic stress disorder (PTSD) and related conduct by SEPTA employees. On August 15, 2017, the EEOC dismissed the charge.

5 wrote to Gardner, expressing SEPTA’s intent to rely on the results of the IME in

connection with his pending workers’ compensation claim but noting that SEPTA would

continue to explore reassignment options. The IME occurred on October 21, and the

evaluating physician, Dr. Dennis McHugh, concluded “within a reasonable degree of

medical certainty, that Mr. Gardner is fully recovered . . . and that he needs no further

care. . . . Mr. Gardner could return to full duty work without restrictions as a SEPTA bus

driver immediately.” App. 556–57. On November 19, 2015, SEPTA’s Vocational

Consultant informed Gardner that, due to the IME results, he could return to work subject

to a medical fitness-for-duty examination. On December 3, 2015, Hopkins notified

Gardner that SEPTA was denying his request for accommodation.

On January 27, 2016, Gardner again submitted an ADA accommodation request,

claiming the same limitations as in the September 2, 2015 request and seeking the same

accommodation. He provided a November 2015 shoulder MRI result, a December 2015

cervical MRI result, two December 2015 reports from Dr. Allen, and a January 27, 2016

note from Dr. Allen, which stated, “Mr. Gardner is cleared to return to work operating

trollies only. Not as a bus driver.” App. 573. On February 10, 2016, SEPTA again

received a note from Dr. Allen indicating that Gardner was “[c]leared to return to normal

duties.” App. 575. On February 22, 2016, Hopkins informed Gardner that his

accommodation request was denied.

Appellant Gardner filed his Complaint against SEPTA in federal court on October

10, 2017, alleging claims of disability discrimination, disability harassment, and

retaliation. His Complaint discussed the arm and hand impairment but also included

6 details about PTSD, depression, photophobia, and sensitivity to light. On March 29,

2018, SEPTA filed a Rule 12(b)(6) partial motion to dismiss the PTSD-related claims for

failure to administratively exhaust them. On August 22, the District Court, Judge

Goldberg, granted the motion.3

After answering the Complaint and conducting discovery, SEPTA filed a motion

for summary judgment on August 16, 2019. The District Court—now Judge Kenney—

granted the motion on October 17, finding that Gardner failed to make out a prima facie

case of disability discrimination, that SEPTA satisfied its obligation to engage in an

interactive process with Gardner, and that Gardner did not make out a prima facie case of

retaliation. Gardner now appeals both the Court’s decision to grant summary judgment

for SEPTA and its earlier decision to grant the partial motion to dismiss.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under

, and we have

jurisdiction pursuant to

. We review de novo the District Court’s

decisions to grant the motion to dismiss and to grant summary judgment. Cranbury Brick

Yard, LLC v. United States,

(3d Cir. 2019); DeHart v. Horn,

(3d Cir. 2004).

III. DISCUSSION

Gardner challenges the District Court’s decisions to grant the motion to dismiss

with respect to his PTSD-related claims and to grant summary judgment on his disability

3 On November 26, 2018, this case was reassigned from Judge Goldberg to Judge Kenney. See CM/ECF No. 25. 7 discrimination claims and his retaliation claim. For the following reasons, we will affirm

both decisions.

A. Motion to Dismiss

Before filing a complaint for employment discrimination under the ADA, a

plaintiff must exhaust administrative remedies by presenting the allegations in a timely

administrative charge to the EEOC. Churchill v. Star Enters.,

, 190 (3d Cir.

1999). In determining whether the allegations in a complaint have been properly

exhausted, courts consider “whether the acts alleged . . . are fairly within the scope of the

prior EEOC complaint, or the investigation arising therefrom.” Antol v. Perry,

(3d Cir. 1996) (quoting Waiters v. Parsons,

(3d Cir. 1984)

(per curiam)). Where facts alleged in a complaint fall outside the core grievance

addressed in the EEOC charge, the new claim is distinct and has not been

administratively exhausted. See

at 1295–96.

Here, the District Court correctly determined that Gardner’s PTSD-related

claims did not arise from the same core grievance discussed in the EEOC charge.

Indeed, Gardner never mentioned the PTSD-related allegations in his initial

charge, nor has he asserted that they are factually related to the incidents

concerning his claimed arm and hand disabilities. In fact, the events underlying

his PTSD-related allegations are entirely distinct from his other claims, as they

arose at different times and involved different SEPTA employees. They were thus

not within the scope of a reasonable investigation arising from the charge.

8 The District Court also rightly concluded that the brief mention of PTSD in

Gardner’s counsel’s letter responding to the EEOC’s request for more information

was insufficient to compensate for the failure to make those allegations in the

charge. An EEOC charge may only be amended to “cure technical defects or

omissions . . . or to clarify and amplify allegations made therein.”

(b). Any additional acts included by amendment must be “related to or

growing out of the subject matter of the original charge.”

Gardner’s PTSD-

related claims are not sufficiently related to his claims of arm and hand

impairments to be considered an amendment to Gardner’s original charge.

Because the PTSD-related claims did not arise out of the same grievance

raised in the original charge and were not reasonably related to that charge, they

were not properly exhausted. See Hicks v. ABT Assocs. Inc.,

(3d Cir. 1978). We therefore will affirm the District Court’s decision to grant the

partial motion to dismiss.

B. Motion for Summary Judgment

In evaluating SEPTA’s motion for summary judgment, we must determine

whether any genuine dispute of material fact exists, and if not, we must decide whether,

viewing the evidence in the light most favorable to the plaintiff, SEPTA was entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(a); Tolan v. Cotton,

, 656–

57 (2014); Anderson v. Liberty Lobby, Inc.,

, 249–50 (1986).

9 a. Discrimination Claims

SEPTA argues that the District Court correctly granted summary judgment in its

favor on the discrimination claims because Gardner failed to make out a prima facie case

of discrimination under the ADA. To establish a prima facie case, Gardner was obligated

to show: “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise

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

accommodations . . . ; and (3) he has suffered an otherwise adverse employment decision

as a result of discrimination.” Taylor v. Phoenixville Sch. Dist.,

(3d

Cir. 1999) (citation omitted). The PHRA requires the same analysis.4

The District Court concluded that Gardner failed to meet even the first prong.

Under the ADA, one has a disability if he has “a physical or mental impairment that

substantially limits one or more major life activities.”

(1)(A); see

(g)(1)(i). The District Court found that Gardner failed to establish a

disability because he offered no “specific reference to a major life activity that [his]

disability limits,” and “the only activity [Gardner] claims is limited is his ability to work

as a bus operator.” App. 36. The District Court thus concluded that Gardner’s claimed

arm and hand problems did not substantially limit his ability to work. We are not so sure.

4 The 2008 Amendments to the ADA clarified that whether an impairment is a disability “should not demand extensive analysis” and that “disability” “shall be construed broadly in favor of expansive coverage of” individuals.

(b). The PHRA disability analysis, although otherwise parallel to the ADA analysis, does not demand such broad construction in favor of coverage. Because the District Court here found that Gardner failed to meet the ADA definition of disability, it found that he necessarily could not meet the narrower PHRA standard. 10 While one could conclude that Gardner’s injuries did not constitute a substantial

limitation, one might also conclude that they did, given the conflicting characterizations

of Gardner’s physical abilities by various medical professionals and the broad

construction courts are obligated to give the term “disability.” See

(b).

However, we need not resolve this issue because—even assuming Gardner was disabled

within the meaning of the ADA—the District Court rightly determined that he has not

shown he is a qualified individual under the second prong.

Under the ADA, a “qualified individual” is someone “who, with or without

reasonable accommodation, can perform the essential functions of the employment

position” sought.

(8); see Taylor,

. Here, Gardner’s

requested accommodation of transfer to a trolley operator position was not a reasonable

accommodation. At the time of his request, Gardner lacked the seniority for an internal

transfer to a trolley operator role under the CBA, so his requested accommodation would

have required that SEPTA violate the CBA. The ADA “does not require that collectively

bargained seniority rights be compromised in order to reasonably accommodate a

disabled individual.” Kralik v. Durbin,

(3d Cir. 1997) (citation omitted).

Accordingly, the seniority requirement applied and precluded Gardner from being

eligible for the transfer he sought.

To bypass the seniority provision of the CBA, Gardner would have needed a

waiver from the union. See

(“[I]t is appropriate for the union, rather than the

employer, to make the determination that the infringement is justifiable by releasing the

employer from its obligation to follow the seniority provisions of the collective

11 bargaining agreement to accommodate a qualified individual with a disability.”). The

record indicates, however, that the Local 234 President opposed the transfer. Although

Gardner points out that some members supported his transfer, such support does not

amount to the union’s formal waiver of the seniority requirement of the CBA. Thus, the

seniority requirement continued to apply, and the requested accommodation was not

reasonable. We therefore cannot find fault with the District Court’s determination that

Gardner was not a qualified individual under the ADA.

Relatedly, the District Court correctly determined that, even assuming Gardner

was a qualified individual with a disability under the ADA, SEPTA fulfilled its obligation

to engage in an “interactive process.” See

(o); Taylor,

. To prove otherwise, Gardner had to show that: (1) SEPTA knew he was disabled;

(2) Gardner requested accommodations; (3) SEPTA made no “good faith effort to assist

[Gardner] in seeking accommodations”; and (4) Gardner “could have been reasonably

accommodated but for [SEPTA’s] lack of good faith.” Taylor, 184 F.3d at 319–20.

Here, the record provides ample evidence of a good faith effort on SEPTA’s part to assist

Gardner. Hopkins discussed Gardner’s request for a transfer with him by phone, by

email, and in person. She explored the seniority issue, looking into how long Gardner

would have to wait to be eligible for the position he sought and engaging with Local 234

to learn about the union’s position on the requested transfer. When evaluating Gardner’s

request, SEPTA considered all of Gardner’s documentation, seeking clarification when

conflicting information arose. Even after deciding to rely on the IME, SEPTA continued

to explore reassignment options to accommodate Gardner. We therefore agree with the

12 District Court that no reasonable juror could find that SEPTA failed to engage in the

requisite interactive process.

For the foregoing reasons, we will affirm the District Court’s decision to grant

summary judgment for SEPTA on the disability discrimination claims.

b. Retaliation

Gardner argues SEPTA retaliated against him for requesting accommodations by

putting him on sick leave and refusing his second request for accommodation in January

2016. To establish a claim of retaliation, a plaintiff must show “(1) protected employee

activity; (2) adverse action by the employer either after or contemporaneous with the

employee’s protected activity; and (3) a causal connection between the employee’s

protected activity and the employer’s adverse action.” Krouse v. Am. Sterilizer Co.,

, 500 (3d Cir. 1997).

Here, Gardner failed to establish the third prong. Gardner’s contention that there

is a causal connection between his protected activity and SEPTA’s allegedly adverse

action is temporally implausible. As the District Court noted, “SEPTA placed [Gardner]

on sick leave before [he] filed his administrative complaint.” App. 58 (emphasis added).5

Further, SEPTA was obligated under the CBA to put Gardner on sick leave due to his

representations that his injuries prevented him from working, eliminating any suggestion

that the action was prompted by Gardner’s protected conduct. To the extent that

5 This also precludes a finding that the placement of Gardner on sick leave constituted an adverse action in retaliation for his EEOC charge under the second prong. Krouse, 126 F.3d at 500. 13 Gardner’s retaliation claim is based on SEPTA’s denial of the requested transfer, we

likewise agree with the District Court that the retaliation claim is simply an improper

repackaging of Gardner’s claim that SEPTA failed to accommodate him. Accordingly,

we will affirm the District Court’s decision to grant summary judgment for SEPTA on

the retaliation claim.

IV. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s orders.

14