Nicole Moore v. CVS RX Services Inc , 660 F. App'x 149 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3836
___________
NICOLE LEE MOORE,
Appellant
v.
CVS RX SERVICES, INC.
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 4-14-cv-01318)
District Judge: Honorable Matthew W. Brann
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 19, 2016
Before: FISHER, SHWARTZ and COWEN, Circuit Judges
(Filed: September 8, 2016)
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OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Nicole Moore appeals from an order of the United States District Court for the
Middle District of Pennsylvania, which granted summary judgment to the Defendant in
her disability discrimination case. We will affirm the District Court’s judgment.
Moore, who was employed by CVS as a “piece picker,”1 developed complications
in her pregnancy in February 2012 and could not lift over her head or climb. She asked
CVS to give her a job that would not require overhead lifting or climbing, but she was
informed that CVS could not do so because her job was already a light duty job. Instead,
CVS told Moore that she could go out on short-term disability. Her initial leave was
approved and was extended at least five times. Moore received short-term disability
payments during this first leave period.
Moore returned to work in August 2012 after her child was born, but developed
post-pregnancy complications. CVS’s Leave of Absence (“LoA”) department approved
Moore’s leave for family bonding from September 24, 2012, through September 30,
2012, and extended that leave fourteen times through November 25, 2012. Moore again
sought to extend her leave and LoA asked her to provide medical certification from a
health care provider. Moore’s nurse practitioner checked a box on the certification form
indicating that Moore could fully perform her job and that she needed only intermittent
leave for follow-up doctor appointments. LoA informed Moore that the certification was
inconsistent with a request for continuous leave.2 Moore provided three more
1
A piece picker takes items off of warehouse shelves and places them in totes to fill store
orders.
2
Nevertheless, CVS did approve one extension until December 30, 2012. But at the
same time, it sent Moore a letter indicating that she must send proper documentation or
2
certifications over the next two and a half months, but each one indicated that Moore
could perform her job and that she needed only intermittent leave for doctor
appointments.
In the meantime, around January 28, 2013, Deborah Montrose, CVS’s Human
Resource Manager, directed Human Resources Specialist Becky Gaffney to send Moore a
termination letter, based on emails received from LoA stating that Moore’s leave had
expired, and based on Montrose’s knowledge that Moore had not returned to work.
Montrose was not aware at the time that Moore had a leave extension request pending.
Montrose later learned that the termination letter was premature, but did not inform
Moore of the mistake, because she knew that Moore was communicating with LoA.
Moore was officially terminated on March 11, 2013, because she had failed to submit
documentation supporting continuous leave.
After exhausting her administrative remedies, Moore filed a counseled complaint
in the District Court, raising claims of failure to accommodate her disability, disparate
treatment, and retaliation (Moore later withdrew the retaliation claim). The District Court
granted CVS’s motion for summary judgment and Moore filed a pro se appeal.
We have little to add to the District Court’s comprehensive opinion.3 First, we
agree that summary judgment was proper on Moore’s failure-to-accommodate claim, as
risk that her then-pending leave request for an extension to January14, 2013, would be
denied.
3
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s
order granting summary judgment de novo and review the facts in the light most
favorable to the nonmoving party. Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d
3
Moore did not establish a prima facie case for such a claim. See Williams v. Phila. Hous.
Auth. Police Dep’t, 380 F.3d 751, 761, 768 (3d Cir. 2004) (prima facie case includes
showing that: (1) plaintiff was disabled within meaning of statute; (2) plaintiff was a
“qualified individual”; and (3) the employer knew plaintiff needed reasonable
accommodation and failed to provide it). Moore failed to establish the second and third
requirements. She did not point to record evidence establishing a genuine issue regarding
whether she was entitled to protection as a “qualified individual” under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. A “qualified individual” is
one “who, with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or desires.” 42 U.S.C.
§ 12111(8). At the time of her first leave of absence, Moore could not lift over her head
or climb. She testified in her deposition that there were no products that she could have
picked without lifting, bending, or climbing. As she could not perform the essential
functions of her job, she was not a “qualified individual.” And even if she were entitled
to the protections of the ADA, she did not establish the third requirement. CVS provided
her with a reasonable accommodation by allowing her six months of paid leave.
As to Moore’s second leave period, once again she did not establish that she could
have done the job with reasonable accommodation. She posited that she could have
returned to work as a piece picker if CVS had isolated her from contact with other
workers. But whether she could have done the job is speculative, given her testimony
Cir. 2011). A grant of summary judgment will be affirmed if our review reveals 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).
4
that she could not think clearly at the time. Further, Moore did not meet her burden of
making a facial showing that isolation was possible; we doubt that it would have been,
given the nature of the work. See Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580-81 (3d
Cir. 1998) (employee must make facial showing that proposed accommodation is
possible; costs associated with proposal cannot be clearly disproportionate to benefits
produced). And once again, CVS did in fact accommodate Moore by providing her with
leave (albeit unpaid), followed by numerous extensions. CVS discontinued that
accommodation only when Moore could not provide certification from her health care
provider to support continuous leave.
We also agree that summary judgment was proper as to the disparate treatment
claim. In order to survive summary judgment, Moore was required to establish a prima
facie case of discrimination: (1) she had a disability; (2) she was otherwise qualified to
perform her job with or without accommodation; and (3) she suffered an adverse action
because of her disability. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir.
2006). As discussed above, Moore did not establish that she was able to perform the
essential tasks of her job with accommodation. But even if she met that requirement, she
did not show that she suffered an adverse action because of her disability.
As to the first leave period, Moore complains that she was given paid leave rather
than being placed in a different position. Paid leave can hardly constitute an adverse
employment action. As to her second leave period, Moore argues that the premature
termination letter was an adverse employment action. But Moore did not establish that
5
she was harmed by that letter. Instead of relying on that letter, she continued to speak
with LoA about extending her leave. Finally, CVS argues that Moore cannot argue that
her final termination was an adverse action, because she did not so argue in the District
Court. See, e.g., In re Reliant Energy Channelview LP, 594 F.3d 200, 209 (3d Cir. 2010)
(plaintiff may not assert new claims for the first time on appeal). But even if we were to
consider that argument, we would find it without merit. Moore was terminated because
she could not establish that she was eligible for continuous leave. At the time of her
termination, her medical provider stated that she could perform her job. Thus, her
termination was not “because of” her disability.
For the foregoing reasons, we will affirm the District Court’s judgment.4
4
CVS filed a motion for leave to file certain documents under seal that reveal Moore’s
medical information. The District Court granted a similar motion below. We have
recognized the important privacy interest in one’s medical records. Doe v. Delie, 257
F.3d 309, 315 (3d Cir. 2001). The right to privacy is a consideration in the balancing
process that courts conduct in deciding whether to file a document under seal. Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 786-87 (3d Cir. 1994). In light of the District
Court’s treatment of the medical information and because in this instance, the right to
privacy outweighs the public’s right of access to materials filed in litigation, we grant
CVS’s motion for leave to file those records under seal.
6