NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 22-2223 ___________

COLLEEN BEHM,

Appellant

v.

MACK TRUCKS, INC.; UNITED AUTO WORKERS LOCAL 677

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5-21-cv-02500) District Judge: Honorable John M. Gallagher

Submitted Under Third Circuit L.A.R. 34.1(a) April 13, 2023

Before: CHAGARES, Chief Judge, SCIRICA and AMBRO, Circuit Judges

(Opinion filed: May 1, 2023)

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

Appellant Colleen Behm worked on the production line at Mack Trucks, Inc.

(“Mack”) for three years, half of which she spent on paid medical leave for a variety of

medical issues. When her doctors finally cleared her to return to work, she emailed her

resignation instead. Still, she sued her former employer for failure to accommodate her

disabilities and retaliation under the Americans with Disabilities Act (“ADA”) and the

Pennsylvania equivalent. The District Court granted summary judgment for Mack

because (1) it had approved every accommodation Behm requested and (2) she

voluntarily resigned, meaning she did not face any adverse employment action. We

agree with the District Court’s reasoning and thus affirm.

I.

Behm started working on the production line at Mack in January 2018. Eight

months later, she injured her shoulder at work and took three months of paid medical

leave. She returned to work for three weeks before she again applied for paid medical

leave, this time for depression and anxiety related to domestic violence threats. Mack

granted leave for a month and a half.

In January 2019, Behm returned to work for four months, but in May she was

injured on the job when she hit her head on a bracket. She alleges that Mack’s internal

doctors harassed her by ordering her to take an ambulance to the hospital immediately.

Doing so would have made Behm miss her kids’ school pickup, so she refused. Instead,

she went to the hospital later that day, and the doctor there diagnosed her with a

concussion and told her to rest for 48 hours.

2 Two days later, within the 48-hour rest period, Mack asked Behm to come into

work to be examined by its medical department. She did so and had a four-hour

examination. Mack’s medical department cleared her to return to work with

accommodations, but the next day she received severe injuries to her head from a

domestic assault causing another concussion. Behm applied for an open-ended paid

medical leave, which Mack approved. She remained on leave through the rest of the

summer.

In August 2019, Behm saw a neurologist who told her not to return to work until

November. But Mack found out that she was working a modeling job while on paid

leave, so it asked her to get a second opinion on her ability to return to work from a

neurologist of Mack’s choosing. The second neurologist cleared Behm to return, so she

did the next day. On her return, she was placed in the “Mack in Motion” division, in

which workers build carts that are used to move parts and tools more efficiently. Behm

argues this was a monotonous and undesirable job reserved for misfits. But the pay and

hours were the same as her previous position. After three months in this division, she

was transferred back to the production line.

Then, in early 2020, Mack announced that it was going to lay off over 220

employees at the facility. As a result, it had to move many workers from first shift to

second shift. The collective bargaining agreement (“CBA”) between Mack and its

employees’ union required it to reallocate shifts based on seniority. In February 2020,

Mack moved Behm to second shift, based on her seniority calculated by the rules set out

in the CBA. She requested transfer back to first shift, but her stated reason for the

3 request was because she could not find childcare. She never said the switch was needed

for a medical reason. Mack denied Behm’s request because she did not have enough

seniority to bump another worker off first shift.

Behm then missed work for a few days because she was sick. When she returned,

Mack issued her a corrective action for the missing days. This caused Behm to have a

panic attack and leave work early. She requested another paid medical leave, which

Mack granted with multiple extensions through February 2021 (a year later). Finally, in

February 2021, Behm’s own doctors cleared her to return to work. Rather than return,

she emailed her resignation.

In July 2020, while on paid medical leave, Behm filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”), alleging violations of

the Americans with Disabilities Act (“ADA”) and other statutes not at issue on appeal.

The EEOC sent her a dismissal and notice of rights, so she sued Mack in the District

Court for the Eastern District of Pennsylvania for (1) failure to accommodate under the

ADA and the Pennsylvania state equivalent—Pennsylvania’s Human Relations Act

(“PHRA”)—and (2) retaliation in the form of constructive discharge under the ADA.

After the parties completed discovery, Mack moved for summary judgment, and the

Court granted the motion. Behm timely appealed. 1

1 The District Court had jurisdiction under

. We have appellate jurisdiction to review its final order under

. We review de novo the Court’s order granting summary judgment. Matheis v. CSL Plasma, Inc.,

(3d Cir. 2019). We apply the same test the District Court would use, meaning we review the facts in the light most favorable to the non-movant and grant summary 4 II.

On appeal, Behm argues broadly that the District Court erred in granting summary

judgment on the failure-to-accommodate and retaliation claims.

A. The District Court properly granted summary judgment on the failure-to- accommodate claims.

The ADA requires employers to “mak[e] reasonable accommodations to the

known physical or mental limitations of an otherwise qualified individual with a

disability . . . unless such covered entity can demonstrate that the accommodation would

impose an undue hardship on the operation of the business.”

(b)(5)(A). To establish a prima facie case, a plaintiff must show that (1) the

employer knew about the employee’s disability, (2) the employee requested

accommodations or assistance, (3) the employer did not make a good-faith effort to assist

the employee, and (4) the employee could have been reasonably accommodated.

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

(3d Cir. 2004) (internal

quotation and citations omitted).

Behm’s failure-to-accommodate claim cannot stem from any of her requests for

paid medical leave. That is so because every time Behm requested leave to address her

medical conditions, Mack granted the request. And every time it only asked her to return

to work (with proper accommodations) after she was cleared by a doctor. Here, Behm

judgment if the movant shows “there is no genuine dispute as to any material fact” and it “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 5 fails under the third element of a claim for failure to accommodate because the employer

did “make a good-faith effort to assist the employee.” Williams,

.

The only request Mack denied was to switch the timing of Behm’s shifts (to move

back to first shift from second shift). But this denial cannot be the basis of her ADA

claim because she never requested an accommodation for a medical reason. Although an

accommodation request need not follow any specific format or use any particular

language, it must at least “make clear that the employee wants assistance for . . . her

disability.” Taylor v. Phoenixville Sch. Dist.,

(3d Cir. 1999). Here,

Behm told her employer the reason she requested to switch shifts was due to scheduling

conflicts with the time she had to pick her daughter up from school, not for any medical

reason that would implicate the ADA. App. 243-44; 511. Thus the employer had no way

of knowing that the request was for an accommodation of a disability, and it cannot

accommodate that which it does not know about.

For these reasons, the District Court properly granted summary judgment for

Mack on the failure-to-accommodate claims under the ADA and the PHRA.

B. The District Court properly granted summary judgment on the retaliation claim.

The ADA also prohibits retaliation. See

(a) (“No person shall

discriminate against any individual because such individual has opposed any act or

practice made unlawful by this chapter.”). A necessary element of retaliation is that the

employee “suffered an adverse employment action because of [her] disability.” Turner v.

Hershey Chocolate U.S.,

(3d Cir. 2006).

6 At the District Court, Behm argued Mack took many adverse employment actions

against her, but on appeal she argues only that her resignation was an adverse

employment action because it was a constructive discharge. Typically, voluntary

resignations are not adverse actions. Leheny v. City of Pittsburgh,

(3d

Cir. 1999). But an employee can still prove retaliation if she resigns when the employer

“permitted conditions so unpleasant or difficult that a reasonable person would have felt

compelled to resign.” Connors v. Chrysler Fin. Corp.,

, 974 (3d Cir. 1998).

To meet this burden, Behm says she was compelled to resign because of (1) her

placement in the Mack in Motion division for three months, (2) harassment for being

ordered to take an ambulance to the hospital immediately after receiving a concussion

and being examined for four hours by the medical department when she should have been

resting, (3) Mack making her get a second opinion from a new neurologist after she had

been on paid medical leave for months, and (4) placement on the second shift.

The District Court thoroughly explained why these conditions were not sufficient

to meet the high burden of showing that the workplace was so unpleasant that a

reasonable person would be compelled to resign. App. 15-16. Some of them (like

ordering her to go to the hospital after receiving a concussion) were typical safety

measures and others (like placing her on second shift) were decisions by her union’s

CBA, not a decision by Mack. As such, Behm could not “convince a reasonable jury that

[her] decision to retire was anything but reasoned and voluntary.” Connors, 160 F.3d at

976.

* * *

7 We thus affirm the judgment of the District Court.

8