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Colwell v. Rite Aid Corp.

April 8, 2010

JEANETTE COLWELL, APPELLANT
v.
RITE AID CORPORATION, D/B/A RITE AID; SUSAN CHAPMAN



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-07-cv-00502) District Judge: Honorable James M. Munley.

The opinion of the court was delivered by: Sloviter, Circuit Judge.

PRECEDENTIAL

Argued December 15, 2009

Before: SLOVITER, JORDAN, and WEIS, Circuit Judges.

OPINION OF THE COURT

Jeanette Colwell, a former part-time retail clerk at a Rite Aid store in Pennsylvania, appeals from the District Court's order granting summary judgment for the appellee, Rite Aid of Pennsylvania, Inc. ("Rite Aid"),*fn1 in Colwell's suit claiming disability discrimination.

I. Background*fn2

Sometime in April 2005, Colwell was hired as a cashier at the Rite Aid store in Old Forge, Pennsylvania at the rate of $5.25 per hour. Because of her personal preferences, her available hours were 9 a.m. to 2 p.m. or 5 p.m. to 9 p.m. Although the shifts that she worked varied, most were for weekdays from 5 p.m. to 9 p.m. During her employment at Rite Aid, Colwell was recognized by her superiors for good performance.

In the summer of 2005, Colwell was diagnosed with "retinal vein occlusion and glaucoma in her left eye," and eventually became blind in that eye. Colwell v. Rite Aid Corp., No. 3:07cv502, 2008 WL 4748226, at *1 (M.D. Pa. Oct. 27, 2008). Although able to see out of her right eye and to perform her duties at work, in mid-September 2005 Colwell informed her supervisor Susan Chapman that her partial blindness made it dangerous and difficult for her to drive to work at night. Colwell claims, and Rite Aid does not dispute, that public transportation was not an option for her because bus service ended at 6 p.m. and there were no taxis. Nonetheless, Chapman told Colwell that she would not be assigned only to day shifts because it "wouldn't be fair" to the other workers. App. at 188.

Sometime in late September or early October, Colwell sent Chapman a note from her doctor stating "I recommend [that] Mrs. Jeanette Colwell not drive at night." App. at 434. After receiving the note, Chapman again informed Colwell that she was unwilling to assign Colwell exclusively day shifts. During that conversation, Colwell told Chapman that her "grandson will [pick her up] when he could," App at 191, but Colwell also claims to have said that she could not "depend on people all the time," App at 191. Indeed, although Colwell did not miss a day of work because of her vision loss except for medical treatment for that condition in August 2005, she asserts that shuttling her to and from work for night shifts created a hardship for her family. Chapman, however, continued to schedule Colwell for a mixture of day and night shifts.

Soon after the second conversation with Chapman, Colwell discussed her desire to change to day shifts with Ken Karasek, her union representative. Karasek then contacted Chapman to discuss the matter. After that conversation, Karasek called Colwell and told her that "he got nowhere" with Chapman. App at 190. Undeterred, Karasek proposed and scheduled a meeting between himself, Chapman and Colwell. Karasek then failed to show up at the meeting. Sometime after, Karasek called Colwell to explain that "he got tied up." App. at 190. He said that "he would set up another meeting." Id. However, Colwell was "too fed up at the time . . . [and] decided to write a letter of resignation and hand it in . . . [because she] was so frustrated and angry." App. at 190. Apparently, Karasek never attempted to set up the meeting before Colwell resigned.

On October 12, 2005, Colwell submitted her resignation by leaving Chapman a handwritten note that gave two weeks notice. Colwell's note stated: "I feel I have not been given fair treatment. There has been prejudice against me. I have been picked on and lies have been told about me. No one deserves that kind of treatment." App at 435. Neither Chapman nor anyone else at Rite Aid responded to Colwell's note.

A few months later, Colwell filed this lawsuit in the United States District Court for the Middle District of Pennsylvania against Rite Aid and Chapman. The complaint stated the following causes of action against Rite Aid: (1) claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA") and the Pennsylvania Human Relations Act, 43 P.S. §§ 951, et seq. ("PHRA") for failure to accommodate Colwell's partial blindness, for constructive discharge, and for retaliation; and (2) claims of age discrimination under both the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. ("ADEA") and the PHRA. Colwell also asserted claims against Chapman under the PHRA for aiding and abetting the alleged age and disability discrimination. Following discovery, the parties filed motions for summary judgment.

The District Court granted Rite Aid's motion and denied Colwell's motion. Concerning the ADA claims, the District Court held that Colwell's vision problem qualified her as disabled under the ADA. It reasoned that a reasonable juror could so conclude from Colwell's testimony that she "has substantial difficulties with depth perception," Colwell, 2008 WL 4748226, at *6, making it difficult for her to drive at night.

The Court held, however, that Colwell did not suffer any adverse employment action cognizable under the ADA and PHRA.*fn3 More specifically, the Court granted Rite Aid summary judgment on Colwell's failure to accommodate claim. The Court noted that the parties agreed that Colwell "did not need an accommodation to perform her job once she arrived at work."

Id. at *9. In light of that agreement, the Court stated that "the accommodations that [Colwell] sought had nothing to do with the work environment or the manner and circumstances under which she performed her work," and thus Rite Aid "had no duty to accommodate [Colwell] in her commute to work." Id. In so holding, the District Court concluded that "the ADA is designed to cover barriers to an employee's ability to work that exist inside the workplace, not difficulties over which the employer has no control," id. at *8, and that imputing a duty to accommodate Colwell was tantamount to "mak[ing] an employer responsible for how an employee gets to work, a situation which expands the employer's responsibility beyond the ADA's intention," id. at *9.

The Court additionally found that Colwell "was not constructively discharged." Id. at *7. The Court noted that Colwell had offered evidence that Chapman "picked on her, forced her to work in a small, isolated area and ignored her[,] . . . [and] made disparaging comments about [Colwell], implying that she was slow and could not see . . . [and that Chapman] did not allow [Colwell] to perform jobs on the store floor, unlike her co-workers." Id. The District Court characterized these slights as "not rare experiences for American workers" and held that "a juror could not conclude that a reasonable person would feel compelled to resign under the circumstances described by [Colwell]." Id. The court also observed that, for a constructive ...


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