McGlothlin v. Petrunich Oral & Maxillofacial Surgery ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JULIA MCGLOTHLIN, )
)
Plaintiff, ) C.A. No.: N20C-08-186 FWW
)
v. )
)
PETRUNICH ORAL & )
MAXILLOFACIAL SURGERY, )
)
Defendant. )
Submitted: May 5, 2022
Decided: July 15, 2022
Upon Defendant Petrunich Oral & Maxillofacial Surgery’s Motion for Summary
Judgment,
GRANTED in part and DENIED in part.
MEMORANDUM OPINION
Michele D. Allen, Esquire, Emily A. Biffen, Esquire, ALLEN & ASSOCIATES, 4250
Lancaster Pike, Suite 230, Wilmington, DE 19805, Attorneys for Plaintiff Julia
McGlothlin.
Daniel C. Herr, Esquire, LAW OFFICE OF DANIEL C. HERR LLC, 1225 N. King
Street, Suite 1000, Wilmington, DE 19801, Attorney for Defendant Petrunich Oral
& Maxillofacial Surgery.
WHARTON, J.
I. INTRODUCTION
Plaintiff Julia McGlothlin (“McGlothlin”) brings this action against her
former employer Defendant Petrunich Oral & Maxillofacial Surgery (“Petrunich”).
In her Complaint, she alleges that Petrunich discriminated against her because of her
pregnancy and family responsibilities. In particular, the Complaint alleges: (1) sex
and pregnancy discrimination in violation of the Delaware Discrimination in
Employment Act (“DDEA”)1 (Count I); (2) violations of the Delaware Family
Responsibilities Act (“DFRA”)2 (Count II); (3) violation of the Delaware Persons
with Disabilities in Employment Protection Act (“DPDEPA”)3 (Count III); and
failure to accommodate in violation of DPDEPA4 (Count IV).5 McGlothlin has
agreed to dismiss a fifth count alleging a violation of the covenant of good faith and
fair dealing.6
Before the Court is Petrunich’s Motion for Summary Judgment, McGlothlin’s
Answer in Opposition and Petrunich’s Reply. For the reasons set forth below,
1
19 Del. C. § 710, et seq.
2
19 Del. C. § 711.
3
19 Del. C. § 720, et. seq.
4
Id.
5
Compl., D.I. 1.
6
See, Def.’s Mot. Summ. J. (“Plaintiff has agreed to dismiss her Count V with
prejudice, and a stipulation to this effect will be presented to the Court for its
consideration.” D.I. 48; Pl.’s Ans. Br., at 1, n.1 (“Plaintiff agrees to dismiss Count
III [sic] of her Complaint.), D.I. 53.
2
McGlothlin’s Motion for Summary Judgment is GRANTED in part and DENIED
in part.
II. FACTS AND PROCEDURAL HISTORY
Petrunich is a dental practice in Newark Delaware, solely owned by Dr.
Raymond Petrunich (Dr. Petrunich”).7 The practice employs four to five staff
members.8 Dr. Petrunich hired McGlothlin in 2012 as a Surgical Assistant. During
her seven years of employment, McGlothlin assisted Dr. Petrunich in about 95% of
his surgeries.9
McGlothlin discovered she was pregnant in or around November 2018.10 She
then met with Dr. Petrunich to discuss her work schedule and associated
accommodations.11 Both agreed that McGlothlin would remain in her current
position and work as much as possible until her June 21, 2019 due date. 12 Dr.
Petrunich agreed to six weeks of maternity leave.13
Prior to becoming pregnant, McGlothlin testified at her deposition that she did
not have any issues missing work.14 Petrunich presents text messages allegedly
7
Pl.’s Ans. Br. at 2, D.I. 53.
8
Def.’s Op. Br., at 4, D.I. 49.
9
Pl.’s Ans. Br., at 2, D.I. 53.
10
Compl.¶ 13, D.I. 1.
11
Pl.’s Ans. Br., at 3, D.I. 53.
12
Id.
13
Id.
14
Def.’s Op. Br., at 7, D.I. 49.
3
depicting multiple instances where McGlothlin did have pre-pregnancy tardiness
issues.15 Further, Petrunich contends that McGlothlin had attendance issues after
becoming pregnant when she was late or absent with little to no notice.16 McGlothlin
claims she made reasonable accommodation requests to Dr. Petrunich to stop taking
x-rays, to receive time off to attend doctor’s appointments, and to use the restroom
more frequently.17 Petrunich denies receiving such requests.18
On June 4, 2019, McGlothlin began her maternity leave following a
conversation between McGlothlin and Dr. Petrunich.19 Petrunich alleges
McGlothlin was “visibly upset” and when asked “when would you prefer to … take
your leave?” McGlothlin replied “I want to do it right now.”20 McGlothlin stated
the foregoing conversation did occur, however, she felt that based on Dr. Petrunich’s
body language that he wanted her to leave that day.21
On July 3, 2019, during McGlothlin’s maternity leave, Petrunich terminated
her employment.22 Petrunich alleges the termination was due to issues with
“performance, multiple days missed on short or little notice, and just [McGlothlin’s]
15
Id., at 5-6.
16
Id., at 10.
17
Pl.’s Ans. Br., at 4-5, D.I. 53.
18
Def.’s Op. Br., at 12, D.I. 49.
19
Pl.’s Ans. Br., at 5, D.I. 53.
20
Def.’s Op. Br., at 13, D.I. 49.
21
Id., at 14.
22
Id., at 16.
4
unreliability.”23 McGlothlin claims she was in good standing at the time of her
termination, having never formally been disciplined during seven years of
employment.24 Additionally, McGlothlin alleges that Petrunich manufactured
performance issues as the basis for her termination.25 Petrunich’s most recent
employee evaluation of McGlothlin does not state any performance issues.26
Discovery now is complete. Petrunich moves for summary judgment on all
four remaining counts. McGlothlin opposes.
III. THE PARTIES’ CONTENTIONS
Petrunich contends McGlothlin’s sex/pregnancy accommodation and
discrimination claim (Count I) fails because no accommodations were requested and
McGlothlin has not established a sufficient record to take her discrimination claims
to trial.27 Petrunich argues that under the three-pronged McDonnell Douglas28
burden shifting framework employed in discrimination cases, McGlothin has failed
to rebut Petrunich’s legitimate, non-discriminatory reasons for terminating her.29
Under the same McDonnell Douglas analysis and for the same reason, Petrunich
argues that McGlothlin’s DFRA (Count II) claim fails.
23
Id., at 16.
24
Pl.’s Ans. Br., at 6-7, D.I. 53.
25
Id., at 7, D.I. 53.
26
Id., at 8.
27
Def.’s Op. Br., at 20-23, D.I. 49.
28
McDonnell Douglas v. Greene, 411 U.S. 792 (1973).
29
Def.’s Op. Br., at 23-26, D.I. 49.
5
Turning to McGlothlin’s disability discrimination claims (Counts III and IV),
Petrunich disputes that she suffered an adverse employment action because of her
pregnancy related disabilities incurred as a result of her giving birth through a
cesarean section. Petrunich argues this claim suffers from a complete lack of proof
because disability-related claims have no merit because she has failed to establish
that she was disabled at the time of termination, did not alert Petrunich of the
disability, and failed to rebut Petrunich’s legitimate non-discriminatory reasons for
terminating her.30
McGlothlin responds that there is at least a factual issue that she made
reasonable pregnancy related requests for accommodations for more frequent
bathroom breaks and to avoid taking x-rays, and that those requests were denied
improperly by Petrunich.31 She also contends that there is at least a clear dispute of
fact as to whether she has rebutted Petrunich’s proffered reason for her termination,
referencing her excellent performance reviews and factual inconsistencies in
Petrunich’s explanation.32 She claims that there is the same factual dispute regarding
her DFRA claim.33 Finally, McGlothlin contends her disability failure to
accommodate claims do not fail because there is a sufficient record to show
30
Id., at 29-30.
31
Pl.’s Ans. Br., at 13-15, D.I. 53.
32
Id., at 16-17.
33
Id., at 19-20.
6
McGlothlin requested and was denied accommodations for more frequent bathroom
breaks, to be relieved from taking x-rays and to recover from childbirth and
pregnancy related impairments.34
IV. STANDARD OF REVIEW
Under Superior Court Civil Rule 56(c) summary judgment is appropriate
when “there is no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.”35 The moving party initially bears the
burden of demonstrating that the undisputed facts support its claims or defenses.36
If the moving party meets its burden, the burden shifts to the non-moving party to
show that there are material issues of fact the ultimate fact-finder must resolve.37
When considering a motion for summary judgment, the Court’s function is to
examine the record, including the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” in the
light most favorable to the non-moving party to determine whether genuine issues
of material fact exist “but not to decide such issues.”38 When material facts are in
34
Id., at 21.
35
Super. Ct. Civ. R. 56(c); Buckley v. State Farm Mut. Auto Ins. Co., 139 A.3d
845, 847 (Del. Super. Ct. 2015), aff’d, 140 A.3d 431 (Del. 2016) (quoting Moore v.
Sizemore, 405 A.2d 679, 680 (Del. 1979)).
36
Sizemore, 405 A.2d at 681.
37
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
38
Super. Ct. Civ. R. 56(c); Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del.
1992).
7
dispute, or “it seems desirable to inquire more thoroughly into the facts to clarify the
application of the law to the circumstances,” summary judgment will not be
appropriate.39 However when the facts permit a reasonable person to draw but one
inference, the question becomes one for decision as a matter of law.40
It is well-settled that Delaware courts have adopted the burden shifting
framework set forth in McDonnell Douglas to analyze discrimination claims.41
Under this framework, McGlothlin must first establish a prima facie case of
discrimination. Her burden in establishing a prima facie case “is not particularly
onerous.”42 If she succeeds in establishing a prima facie case, the burden shifts to
Petrunich to proffer “legitimate non-discriminatory” reasons for its actions.43 If
Petrunich meets this burden, the burden again shifts to McGlothlin to demonstrate,
by preponderance of the evidence, that Petrunich’s rationale is pretextual.44 Pursuant
to Fuentes v. Perskie, in order to demonstrate that rationale is pretextual,
McGlothlin must “point to some evidence, direct or circumstantial from which a
factfinder could reasonably either (1) disbelieve the employer’s articulated
39
Ebersole v. Lowengrub, 180 A.2d 467, 468-70, (Del. 1962) (citing Knapp v.
Kinsey, 249 F.2d 797 (6th Cir. 1957)).
40
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
41
Miller v. State of Delaware, Dep't of Pub. Safety, 2011 WL 1312286, at *12 (Del.
Super.).
42
Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 369 (3d Cir. 2008).
43
See, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).
44
Pl.’s Ans. Br. at 42-43, D.I. 54.
8
legitimate reasons; or (2) believe that an invidious discriminatory reason was more
likely than not a motivating determinative cause of the employer’s actions.”45 “[T]o
avoid summary judgment, the plaintiff’s evidence rebutting the employer’s proffered
legitimate reasons must allow a factfinder reasonably to infer that each of the
employer’s proffered non-discriminatory reasons was either a post hoc fabrication
or otherwise did not actually motivate employment action (that is the proffered
reason is a pretext).”46
V. DISCUSSION
The Complaint alleges that Petrunich violated Delaware statutes which
prohibit various forms of discrimination by making it unlawful for employers to
engage in adverse employment actions for discriminatory purposes. Adverse
employment actions include discharge from employment and failure or refusal to
make reasonable accommodations.47 Generally, discrimination claims are analyzed
under the three step McDonnell Douglas framework, which the Court does here. But
Petrunich also maintains that in some circumstances, either there was no request for
an accommodation, or accommodations were unnecessary. The Court addresses
those contentions under standard summary judgment analysis.
45
32 F.3d 759, 764 (3d. Cir. 1994).
46
Harding v. Careerbuilder, LLC, 168 Fed. Appx. 535, 537 (3d Cir.) (quoting
Fuentes, 32 F.3d at 764).
47
See, e.g., 19 Del. C. § 701(a).
9
The first step under the McDonnell Douglas framework requires McGlothlin
to establish a prima facie case of discrimination by a preponderance of the
evidence.48 To establish a prima facie case, McGlothlin must prove that: (a) she
belonged to a protected class; (b) she was qualified for the position; (c) she suffered
an adverse employment action; and (d) the circumstances surrounding the adverse
employment action give rise to an inference of illegal discriminatory motive.49
“Where the employee is pregnant or on maternity leave at the time the adverse
employment action occurs, her status as a member of the protected class is evident
and the traditional prima facie case is appropriate.”50 McGlothlin was pregnant,
qualified, and terminated. The timing of the termination during maternity leave
creates an inference of an illegal discriminatory motive in the Court’s view.
McGlothlin has established a prima facie case.
The burden then shifts to Petrunich to show a legitimate non-discriminatory
reason for McGlothlin’s termination.51 Petrunich states that McGlothlin was
terminated because of performance issues such as “unreliability, disruptive behavior,
48
Wagenhoffer v. Visionquest National, Ltd., 2016 WL 3947952 at *4 (July 14,
2016) (citing Riner v. Nat.’l Cash Register, 434 A.2d 375, 376-77 (1981)).
49
Wagenhoffer, at *4 (citing Conley v. State, 2011 WL 113201, at *3-*4 (Del. Super.
Ct. Jan. 11, 2011)).
50
Solomen v. Redwood Advisory Co., 183 F. Supp. 2d 748, 754 (E.D. Pa. 2002).
51
Wagenhoffer, at *6 (citing Spicer v. CADpult, Ltd., 2013 WL 6917142, at *5
(Del. Super. Ct. Nov. 15, 2013)).
10
and propensity to leave mid-workday without notice.”52 If true, these reasons
establish legitimate non-discriminatory basis for McGlothlin’s termination.
The existence of legitimate reasons to terminate McGlothlin’s employment
shifts the burden back to McGlothlin to show the reasons presented were mere
pretexts to intentionally discriminate against her because of her pregnancy.53 To
make this showing, McGlothlin must demonstrate that a reasonable person could:
“(a) disbelieve [Petrunich’s] articulated legitimate reasons; or (b) believe that an
invidious discriminatory reason was more likely than not a motivating or
determinative cause of [Petrunich’s] action.”54 Accordingly, to avoid summary
judgment, McGlothlin’s evidence rebutting the Petrunich’s proffered legitimate
reasons must “allow a factfinder reasonably to infer that the employer’s proffered
non-discriminatory reasons was either a post hoc fabrication or otherwise did not
actually motivate the employment action.”55 Further, it is important to recognize
that the prima facie case and pretext inquiries often overlap.56 With these
considerations in mind, the Court address the Counts of the Complaint in sequence.
52
Def.’s Br. in Supp. Mot. Summ. J., at 25, D.I. 49.
53
Wagenhoffer, at *6 (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253-56 (1981)).
54
Wagenhoffer, at *6 (citing Spicer, 2013 WL 6917142, at *5).
55
Butz v. Lawns Unlimited Ltd., 568 F. Supp. 2d 468, 477 (D. Del. 2008).
56
Id.11
A. Count I Alleging Violations of the Delaware Discrimination in
Employment Act.
In Count I of her Complaint, McGlothlin alleges that she “was subjected to
discriminatory conduct which was perpetrated upon her by Dr. Petrunich and this
conduct was based upon and directed at plaintiff by reason of her sex and
pregnancy.”57 In particular, McGlothlin claims that Petrunich refused her three
reasonable pregnancy related requests for accommodations: (1) that she be allowed
to cease taking x-rays; (2) that she be allowed more frequent bathroom breaks; and
(3) that she be given leave to recover from childbirth and pregnancy related
impairments.58 Instead, she was terminated.59 Petrunich disputes the factual
underpinning for each of the purported accommodation requests.
1. X-Rays.
McGlothlin’s first claim is that Petrunich refused her a reasonable pregnancy
accommodation to be excused from performing x-rays. Petrunich contends that,
assuming McGlothlin requested to be relieved from taking x-rays, that request
cannot be linked to her pregnancy because each x-ray room is equipped with remote
controls and lead wall protections to allow the technician to take the x-ray safely
from outside the room.60 Petrunich further contends that it is McGlothlin’s burden
57
Compl., at ⁋ 39, D.I. 1.
58
Id., at ⁋⁋ 40-41.
59
Id., at ⁋ 42.
60
Def.’s Op. Br., at 22, D.I. 49.
12
to show through expert opinion that these protections were insufficient, and she has
failed to do that.61
McGlothlin disputes that there is any requirement under DDEA that she
provide an expert opinion to establish that her request for accommodation was
reasonable.62 She argues little else except to say that Petrunich denied her request
without discussion and held her accommodation request against her as evidenced by
Dr. Petrunich considering her refusal to take x-rays unprofessional.63
It is unlawful for an employer to “Fail or refuse to make reasonable
accommodations to the known limitations related to the pregnancy of
an…employee,”64 or to “Take adverse action against an employee…for requesting
or using a reasonable accommodation to the known limitations related to the
pregnancy of the employee.”65 The gravamen of the dispute about x-rays is whether
relieving McGlothlin of her responsibility to take x-rays was a “reasonable”
accommodation to her because of her pregnancy. Petrunich’s position is that no
additional accommodation was necessary due to her pregnancy because adequate
protections from x-rays – lead walls and remote control - were already in place for
all technicians. Further, McGlothlin has produced no expert opinion suggesting the
61
Id.62
Pl.’s Ans. Br., at 13-14, D.I. 53.
63
Id.64
19 Del. C. § 711(a)(3)b.
65
19 Del. C. § 711(a)(3)f.
13
protections were inadequate. To that argument McGlothlin responds that DDEA
does not require expert witnesses to establish the reasonableness of
accommodations. Perhaps, but that response really does not answer the question.
McGlothlin has a burden to establish that her requested accommodation was
reasonable whether DDEA requires an expert or not. She cannot meet that burden
simply by saying it is so.
Whether the protections installed by Petrunich were adequate is the type of
question that is best resolved with the help of people knowledgeable about radiation
exposure, in other words experts in that field. McGlothlin has not provided that
assistance, or any other evidence to establish the reasonableness of the requested
accommodation. Thus, she has failed to meet her burden to show that her
accommodation request was reasonable. In any event, even if the Court were to
assume that the request was reasonable, application of the McDonnell Douglas
burden shifting framework does not change the result. McGlothlin fails to rebut
Petrunich’s non-discriminatory reason for denying the accommodation – that it was
unnecessary due to adequate protections already in place.
2. Bathroom Breaks.
As to bathroom breaks, Petrunich argues that McGlothlin failed to establish
that a need for more bathroom breaks was a known limitation related to her
pregnancy, and even if it were, McGlothlin’s only evidence that her request was
14
refused was one example when she was assisting in surgery.66 McGlothlin admitted
that it was important for her to remain in the operating room during surgery and that
she did not need to ask Dr. Petrunich for permission to use the bathroom at other
times.67 In response, McGlothin references two portions of her deposition
testimony.68 The first is simply:
Q. …Did you ask for any accommodations at work
directly due to your anxiety?
A. Not towards the anxiety. Towards the pregnancy, I
asked for more bathroom breaks and – for some reason, I
was urinating more because of the pregnancy, and he
would not let me.69
The second reference provides no more detail:
Q. Did you ever request more frequent bathroom breaks
to Dr. Petrunich orally?
A. Yes.70
Not cited by McGlothlin, but immediately prior to the cited portion of the transcript,
McGlothlin testified that she had never put her request for more bathroom breaks in
writing.71 Also not cited by McGlothlin, but immediately following the cited portion
is this exchange:
66
Def.’s Op. Br., at 20-22, D.I. 49.
67
Id.
68
Pl.’s Ans. Br. at 5, 13, D.I. 53.
69
Def.’s Op. Br., at Ex. D, McGlothlin Tr., at 16:11-16.
70
Id., at 45:14-18.
71
Id., at 45: 11-13.
15
Q. How many times?
A. I don’t know. I remember a time I needed to go to
the bathroom. I asked him, and he told me to wait, during
my pregnancy. That was just one example when I asked.
Q. How many times did that happen?
A. I don’t know how many times.
Q. But you recall today one time in particular where you
claim he said no to a bathroom break?
A. Yeah. I remember – yeah.
* * *
Q. And there is no policy that you have to ask permission
to use the bathroom. You just go when you need to, right?
* * *
A. Yes.
* * *
Q. …Did you have to ask Dr. Petrunich permission to
use the bathroom when you worked there?
A. During procedures, I did. When him and I were in a
procedure, yes.
Q. When you were not in a procedure, did you have to
ask his permission?
A. No.
* * *
16
Q. Was it important for you to stay in the operating room
when Dr. Petrunich was operating?
A. Yes.
Q. Was that for patient safety?
A. For patient safety...72
In sum, it appears that McGlothlin can recall only one occasion when Dr. Petrunich
refused her permission to use the bathroom. That occasion occurred during a
surgical procedure when it was important for her to stay in the operating room for
patient safety. Other than simply saying it happened during her pregnancy,
McGlothlin provided no further details.
The Court assumes McGlothlin’s more frequent need to use the bathroom was
related to her pregnancy based on her personal experience. The Court further accepts
that she orally requested an accommodation to use the bathroom more frequently. It
is clear to the Court that, when accepting these facts in the light most favorable to
McGlothlin, she has failed to establish that Petrunich denied her a reasonable
accommodation. She was free to use the bathroom at any time other than during
procedures, and she only cites a single occasion when she was denied a request for
a bathroom break. Nevertheless, even if the Court were to accept her contention that
Petrunich denied her a reasonable pregnancy related accommodation for more
72
Id., at 45:18 - 46:3; 46:18 – 46:20; 46:22; 47:2 – 47:9; 47:20 – 47:24.
17
frequent bathroom use, McGlothlin has failed to rebut Petrunich’s legitimate non-
discriminatory reason for denying it on the single occasion she recalls. In fact, she
reinforces the legitimacy of that reason since she acknowledges that it was necessary
for her to remain in the operating room for patient safety.
3. Pregnancy Leave.
Petrunich claims that it provided McGlothlin with pregnancy leave, but after
she began her leave “abruptly and unilaterally” Dr. Petrunich “reviewed everything
that had happened over the – to be honest, two years, that’s when [he] elected the
termination.”73 Petrunich notes that an employee can be terminated whether on leave
or not if the reasons are unrelated to her pregnancy. McGlothlin agrees but disagrees
with the proposition that her being on leave was unrelated to her termination. She
points to her seven year employment history during which she was never disciplined
for attendance or punctuality issues or for any disruptive behavior.74 In fact,
Petrunich’s last performance review of McGlothlin rated her “exceptional” and
“clearly outstanding” in fifteen different areas including attendance, courtesy,
reliability, judgment, and knowledge.75 This clear factual dispute, coupled with the
timing of McGlothlin’s termination, presents a “triable issue of fact as to whether
there is a nexus between [McGlothlin’s] pregnancy and the adverse employment
73
Def.’s Op. Br., at 23, D.I. 49.
74
Pl.’s Ans. Br., at 15-17, D.I. 53.
75
Id.
18
action.”76 from which a factfinder could find that Petrunich’s reasons for terminating
McGlothlin were pretextual.
Accordingly, as to Count I, Petrunich’s Motion for Summary Judgment is
GRANTED as to McGlothlin’s claims that Petrunich failed to provide reasonable
accommodations to be excused from performing x-rays and for additional bathroom
breaks. It is DENIED as to her claim that she was terminated while on leave due to
her pregnancy.
B. Count II Alleging Violations of the Delaware Family Responsibilities
Act.
Count II alleges that McGlothlin was discharged because of her family
responsibilities. Those responsibilities included her obligation to care for her
newborn daughter. While this claim is related to the claim McGlothlin advances in
Count I, it is not identical. Nevertheless, the Court’s analysis and conclusion are the
same as in the Court’s discussion of McGlothlin’s pregnancy leave accommodation
request set out in Section V.A.3. above. Accordingly, Petrunich’s the Motion for
Summary Judgment is DENIED as to Count II.
C. Count III Alleging Violation of the Delaware Persons with
Disabilities in Employment Act.
In Count III, McGlothlin alleges that she suffered from pregnancy related
impairments as a result of giving birth by cesarean section and that she suffered an
76
Tureversky v. FixtureOne Corp., 904 F. Supp. 2d 454, 464 (E.D. Pa. 2012).
19
adverse employment action as a result of those pregnancy related disabilities when
she was terminated from employment. Petrunich contends this claim suffers from a
complete lack of proof.77 First, it argues that McGlothlin has failed to establish that
Petrunich was even aware that she suffered from a cesarean section-related
pregnancy impairment.78 Second, it argues that McGlothlin was not impaired
because she admits that she was ready to return to work two weeks after giving birth.
Therefore, citing Tice v. Centre Area Transportation Authority,79 she suffered no
impairment that substantially limited a major life activity.80
In response, McGlothlin states that by virtue of having an emergency cesarean
section, she suffered from pregnancy related impairments requiring two weeks to
recover before returning to work.81 She does not address Petrunich’s arguments that
she never made it aware of any cesarean section-related impairments. Instead, she
relies on her original requests for accommodations made prior to going on pregnancy
leave. She respond to Petrunich’s argument that any impairments, to the extent they
existed, were not impairments that substantially affected a major life activity, and
thus do not qualify as disabilities under the ADA, by saying that “Complications
77
Def.’s Op. Br., at 27, D.I. 49.
78
Id.79
247 F. 3d 506, 513 (3d. Cir. 2001).
80
Def.’s Op. Br., at 27-28, D.I. 49.
81
Pl.’s Ans. Br., at 22, D.I. 53.
20
arising out of pregnancy can constitute disability sufficient to invoke the ADA, and
that whether they actually rise to the level of disability is a question of fact.”82
The DPDEPA makes it an unlawful employment practice for an employer to
“Discharge or otherwise discriminate against qualified persons with disabilities with
respect to compensation, terms, conditions or privileges of employment.”83 An
allegation that Petrunich discharged McGlothlin because of a pregnancy related
disability as alleged in Count III is not the same as her claims Petrunich discharged
her or failed to accommodate her because she was pregnant as alleged in Count I.
Pregnancy and disability are not synonymous. McGlothlin recognizes that
pregnancy itself may not constitute a disability pursuant to the Americans with
Disabilities Act, but complications arising out of a pregnancy can rise to the level of
a disability.84 Thus, the focus of the claim in Count III necessarily is McGlothlin’s
claimed disability resulting from the emergency cesarean section delivery of her
child, not her pregnancy generally.
There is no evidence in the record that Petrunich was ever made aware that
McGlothlin was disabled prior to it terminating her employment. Certainly,
82
Id., at 21.
83
19 Del. C. § 724(a)(2).
84
Pl.’s Ans. Br., at 21 (citing Oliver v. Scranton Materials, Inc., 2015 WL
1003981, at *7 (M.D. Pa. Mar. 5, 2015); Brennan v. National Telephone Directory
Corp. 850 F. Supp. 331,333 (E.D. Pa 1994); Smith v. Center for Organ Recovery
and Education, 2013 WL 4049550, at *1 (W.D. Pa. Aug. 9, 2013)), D.I. 53.
21
McGlothlin did not testify that she made Petrunich aware of her delivery and post-
delivery impairments/disabilities. Even if the Court were to accept that Petrunich
discriminated against McGlothlin because she was pregnant, it does not follow that
it discriminated against her because she was disabled. So, while Petrunich obviously
knew McGlothlin was pregnant, and in theory could be held liable for discriminating
against her on that basis, it cannot be liable for discriminating against her on a basis
about which it was unaware. If Petrunich was unaware of the disability, it cannot be
said to have discriminated against McGlothlin because of that disability. Petrunich’s
Motion for Summary Judgment is GRANTED as to Count III.85
D. Count IV Alleging Failure to Accommodate in Violation of the
Delaware Persons with Disabilities Employment Protection Act.
Count IV alleges that Petrunich failed to accommodate her alleged disability.
But, as discussed above, her claimed disability was not merely being pregnant. Her
disability was a result of complications from her emergency cesarean section, about
which Petrunich was never informed. “A qualified person with a disability
requesting a reasonable accommodation …must apprise the employer…of the
person’s disability…”86 An employer’s duty to make an investigation as to whether
85
Because the Court grants Petrunich’s motion as to Count III on the grounds that it
was unaware of McGlothlin’s claimed disability, it need not address whether
McGlothlin was disabled in fact.
86
19 Del. C. § 723(a).
22
there are reasonable accommodations that can be made and then make them only
arises “Once a qualified person with a disability has requested an accommodation.”87
McGlothlin did not have the claimed disability when she requested her
pregnancy leave accommodation. Once she became disabled and a “qualified person
with a disability,” she never requested a reasonable accommodation for her
disability. For that reason, Petrunich’s Motion for Summary Judgment is
GRANTED as to Count IV.
VI. CONCLUSION
For the reasons set forth above Defendant Petrunich Oral & Maxillofacial
Surgery’s Motion for Summary Judgment is GRANTED as to Count I, (but only as
to Plaintiff Julia McGlothlin’s claims that she was subjected to discriminatory
conduct when she was refused pregnancy related accommodations to be excused
from taking x-rays and for more frequent bathroom breaks), Count III, and Count
IV. It is DENIED as to Count I, (but only as to Plaintiff Julia McGlothlin’s claim
that she was refused pregnancy leave when she was terminated while on leave) and
Count II.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
87
19 Del. C. § 723(b).
23