NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-2137 ___________

B. JANET PETTI, Appellant

v.

OCEAN COUNTY BOARD OF HEALTH; OCEAN COUNTY HEALTH DEPARTMENT ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.N.J. Civil Action No. 3:15-cv-07305) District Judge: Honorable Brian R. Martinotti ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) February 21, 2020 Before: AMBRO, GREENAWAY, Jr., and PORTER, Circuit Judges

(Opinion filed: December 9, 2020) ___________

OPINION* ___________

PER CURIAM

Pro se appellant B. Janet Petti appeals the District Court’s grant of summary

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. judgment in favor of defendants Ocean County Board of Health and Ocean County

Health Department (“OCHD”). Petti brought claims of discrimination in violation of the

Americans with Disabilities Act (“ADA”),

, et seq., retaliation in

violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and wrongful

termination. For the reasons that follow, we will affirm the District Court’s judgment.

I.

Petti began working as an accountant for OCHD in 2004.1 She worked in one of

the two buildings at OCHD’s office campus. In November 2012, construction began at

the building next to Petti’s; the windows in her building were taped in preparation. Later

that month, she emailed Ocean County’s Director of Administration and Program

Development, Victoria Miragliotta, to ask whether construction debris containing

asbestos was getting into her building, out of concern that it could aggravate an

unspecified medical condition. Several days later, Petti emailed Miragliotta and Ocean

County’s Public Health Coordinator to inform them that she had observed construction

debris on her windowsill and her notebooks. Petti also asked whether the construction

work outside was being safely performed. Miragliotta responded that an asbestos

sampling survey had been conducted on the construction site in March 2012 which

concluded that there was no asbestos-containing material at the site per Environmental

Protection Agency guidelines. Miragliotta also informed Petti that her building’s

1 The following facts are undisputed unless otherwise noted.

2 ventilation system was not connected to any demolition that was occurring involving the

other building. Petti restated her concerns about construction debris getting into her work

area to her direct supervisor.

In early December, Petti’s work location was temporarily transferred to a different

building away from OCHD’s office campus. Toward the end of December, her

supervisor told Petti that she would be transferred back in early January. She received a

report, conducted at the construction site by an external consultant during her absence,

indicating that the construction site was free of external debris or other hazards. Petti

subsequently filed an occupational safety complaint with New Jersey’s Public Employees

Occupational Safety and Health Program (“PEOSH”) stating concerns about air quality

and debris at her workplace.

On her second day back at the office — which was ultimately her last day working

at OCHD — Petti left early and submitted a letter to her supervisor requesting

unspecified reasonable accommodations. She also submitted a doctor’s note on her

return stating that she was advised to avoid exposure to dust, chemicals, construction

materials, and respiratory irritants, due to “pulmonary dysfunction.” App. at 50.

Miragliotta sent Petti a letter that day confirming that she had been sent two reports

indicating that her building was safe from construction debris and informing her that

other OCHD offices had ongoing construction.

On January 9, 2013, Petti indicated that she had experienced an allergic reaction

3 when she had returned to the office and asked to be moved to a different building. She

submitted a doctor’s note requesting that she be excused from work due to allergy

symptoms of an “undetermined etiology.” Appellees’ Suppl. App. at 430. Several days

later, Petti requested workers’ compensation because her whole body was itchy and her

eyes were swollen; Petti claimed that the reaction stemmed from exposure to construction

debris. She also submitted a letter from her doctor requesting that she be relocated so

that she would “not be exposed to irritants that exacerbate her lung condition.” App. at

56. Petti then underwent a physical examination pursuant to her workers’ compensation

request. The examining doctor noted that Petti repeatedly denied having any breathing

problems or a rash and that she refused to consent to pulmonary function tests or to

permit the doctor to speak with her other physicians. The doctor ultimately concluded

that the itchiness Petti reported was likely due to dry skin.

On January 16, 2013, Ocean County’s Public Health Coordinator informed Petti

that he was researching her concerns. Petti then submitted a leave request backdated to

January 2, 2013, under the Family and Medical Leave Act (“FMLA”). She attached a

medical certificate by her doctor stating that she was experiencing “shortness of breath

after exposure to construction dust.” Appellees’ Suppl. App. at 476. On February 7,

2013, Petti’s FMLA request was approved for 12 weeks.

While Petti was on FMLA leave, Ocean County contracted an external evaluator

to test the room where Petti worked and surrounding rooms for mold; the tests came back

4 in the normal range. Additionally, PEOSH conducted an unannounced inspection of

Ocean County’s Finance Department, in which investigators interviewed employees and

conducted air quality tests of the room in which Petti worked and the area outside of the

building. The Enforcement Coordinator of PEOSH concluded that no violations of health

standards were observed during the inspection.

On April 8, 2013, Petti submitted a request for an additional leave of absence with

an indeterminate end date, indicating that “she need[ed] to be away from construction

dust.” Appellees’ Suppl. App. at 512. Her request was denied several days later because

she failed to provide a complete medical certification or an end date. Petti was directed

to return to work, but she did not return.

On May 8, 2013, Miragliotta sent Petti a letter detailing the steps that had been

taken to ensure that her workplace was safe and noting the doctor’s evaluation from her

workers’ compensation examination. The letter indicated that Petti’s work location had

been moved away from the windows in her office, that she would be provided with a

respirator or particulate dust mask at work, and that, “out of an abundance of caution,” an

air scrubber would be installed in her department. App. at 66.

Through an attorney, Petti requested information about the particulate dust mask.

At the end of May, Petti’s doctor sent a letter to OCHD stating that Petti could not wear a

respirator for extended periods of time because she had a neck injury and a latex allergy.

Ocean County’s legal counsel requested a meeting with Petti, but she did not respond.

5 In July, Ocean County initiated formal disciplinary proceedings to terminate Petti

for insubordination, excessive absenteeism,2 and resignation not in good standing. On

August 21, 2013, a hearing officer concluded that Ocean County’s termination of Petti

was warranted on all three proposed grounds. After Petti appealed the determination, an

administrative law judge upheld the charges of excessive absenteeism and resignation not

in good standing. However, he dismissed the charge of insubordination as unwarranted

after concluding that Petti reasonably relied on her doctors’ opinions; he also determined

that a sixty-day suspension and resignation in good standing was the appropriate

sanction. His decision was upheld on appeal.

Petti commenced this action in the District Court in October 2015.3 Following

early litigation and discovery, defendants moved for summary judgment. The District

Court granted their motion. Petti timely appealed after the District Court granted her an

extension of time to appeal under Federal Rule of Appellate Procedure 4(a)(5).

II.

We have jurisdiction over this appeal pursuant to

. We exercise

plenary review over the District Court’s grant of summary judgment for defendants. See

Blunt v. Lower Merion Sch. Dist.,

(3d Cir. 2014). Summary judgment

2 Petti’s disciplinary record included instances of excessive breaks and absences in March and June 2012, prior to the beginning of the construction work. 3 Petti filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging disability discrimination in May 2014. She was ultimately issued a right-to-sue letter regarding her charge. 6 is proper “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.” Fed. R. Civ. P. 56(a). A genuine

dispute of material fact exists if the evidence is sufficient for a reasonable factfinder to

return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc.,

(1986).

III.

We agree with the District Court’s grant of summary judgment for defendants.

First, Petti did not state a prima facie case of ADA discrimination based on her claim that

OCHD failed to provide requested reasonable accommodations. To establish a prima

facie case of discrimination under the ADA, an employee must show that she: (1) is

disabled; (2) is otherwise qualified to perform the essential functions of the job, with or

without reasonable accommodations by her employer; and (3) has suffered an adverse

employment action as a result of her disability, including her employer’s refusal to make

reasonable accommodation for her disability. Hohider v. United Parcel Serv., Inc.,

(3d Cir. 2009). Once an employee requests a reasonable accommodation,

her employer must assist the employee in seeking accommodations through a “flexible,

interactive process,”

(internal citation omitted), and both employers and

employees “have a duty to assist in the search for appropriate reasonable accommodation

and to act in good faith,” Taylor v. Phoenixville Sch. Dist.,

(3d Cir.

1999).

7 In this case, assuming without deciding that Petti can make out the first two

elements of a prima facie case, the record reflects OCHD’s consistent good faith efforts

to respond to Petti’s requests regarding the safety of her workplace, given the medical

conditions she represented she had. See

(“All the interactive process requires is

that employers make a good-faith effort to seek accommodations.”). OCHD promptly

responded to Petti’s initial requests about environmental hazards with information about

prior safety testing that had been conducted on the site and information about her

building’s separate ventilation system. In response to Petti’s continued concerns, OCHD

moved her to another location while it investigated the safety of her work space. After an

external consultant examined the site and determined that the outside construction work

was free of external debris or other hazards, she was asked to return to her usual work

location. In early January, after Petti reported having an allergic reaction at work, OCHD

informed her that it would again review her concerns; in the following month, OCHD

approved her request for FMLA leave, hired another external consultant to conduct mold

testing, and complied with an unannounced PEOSH inspection.

After mold testing came back in the normal range and the PEOSH inspection came

back without any violations, OCHD denied Petti’s incomplete request for a further leave

of absence but offered to install an air scrubber in her workspace and provide her with a

respirator or a particulate dust mask; it also noted that her work location had been moved

away from any windows. Petti requested further information about the particulate dust

8 mask, but communication ultimately broke down when Petti failed to respond OCHD’s

request for a meeting to discuss its proposed accommodations for her. See

(explaining

that “an employer cannot be faulted if after conferring with the employee to find possible

accommodations,” the interactive process breaks down due to the employee’s actions or

omissions). Although Petti insisted at several points during this process that the only

solution to her concerns was to move her to another building outside of her department,

she did not provide evidence to explain how her concerns could be accommodated

elsewhere when other OCHD buildings were also undergoing construction. Accordingly,

the District Court correctly granted summary judgment for defendants on Petti’s ADA

discrimination claim.

Next, Petti failed to establish a prima facie case of Title VII retaliation because she

did not show that her engagement in a protected activity under Title VII was the likely

reason for her termination. To make out a prima facie case of Title VII retaliation, a

plaintiff must show that: “(1) she engaged in activity protected by Title VII; (2) the

employer took an adverse employment action against her; and (3) there was a causal

connection between her participation in the protected activity and the adverse

employment action.” Moore v. City of Philadelphia,

(3d Cir. 2006)

(citation omitted). To establish the third prong at this stage, a plaintiff asserting a Title

VII retaliation claim must “proffer evidence sufficient to raise the inference that her

engagement in a protected activity was the likely reason for the adverse employment

9 action[.]” Carvalho-Grevious v. Del. State Univ.,

(3d Cir. 2017)

(emphasis in original).

Petti has argued that her filing of a confidential complaint with PEOSH constitutes

protected activity and that she was fired in retaliation for filing that complaint. However,

even assuming that OCHD knew that Petti filed a complaint, she relies solely on the time

that passed between her complaint and her termination to establish causation. See

Carvalho-Grevious, 851 F.3d at 259–260 (explaining that a plaintiff can establish

causation “by proffering evidence of an employer’s inconsistent explanation for taking an

adverse employment action, a pattern of antagonism, or temporal proximity ‘unusually

suggestive of retaliatory motive’”) (internal citations omitted). The six months that

passed between Petti’s filing of a complaint and OCHD’s initiation of termination

proceedings against her are not “unusually suggestive of retaliatory motive” such that

timing alone could establish that her complaint was the likely reason for her termination.

See Williams v. Phila. Hous. Auth. Police Dep’t,

(3d Cir. 2004)

(concluding that a gap of over two months, taken alone, is insufficient to be “unduly

suggestive” of retaliation), superseded by statute on other grounds as stated in Robinson

v. First State Cmty. Action Agency,

, 187-89 & n.30 (3d Cir. 2019). Thus,

summary judgment was properly granted for defendants on Petti’s retaliation claim.

Finally, we agree with the District Court that Petti’s common law claim for

wrongful termination is preempted where she has a statutory remedy. See Lawrence v.

10 Nat’l Westminster Bank N.J.,

(3d Cir. 1996) (stating that where “the

sources of public policy [a plaintiff] relies on are coterminous with his statutory claims,

he cannot advance a separate common law public policy claim”). Petti’s wrongful

termination claim was based on the same facts as her discrimination and retaliation

claims. Because a wrongful termination claim would not protect any additional interest

beyond the protections of the ADA and Title VII under these circumstances, summary

judgment was properly granted for defendants on Petti’s remaining claim.4

Accordingly, we will affirm the judgment of the District Court.5

4 To the extent that Petti challenges the District Court’s resolution of several motions she filed, we conclude that the District Court did not err in its decisions. 5 We previously included here a footnote ruling on various motions; inter alia, we granted the parties’ motions to file supplemental and corrective documents. Because the designated period for such filings has now elapsed, we omit the footnote. 11