Nazario v. Garland et al

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
RAUL NAZARIO,
Plaintiff,
v.
PAMELA BONDI, ATTORNEY
GENERAL, et al.,
Defendant.
CIVIL ACTION NO. 3:22-CV-01366
(SAPORITO, J.)
MEMORANDUM
On September 2, 2022, the plaintiff, Raul Nazario, initiated this
action concerning nine claims against former Attorney General of the
United States, Merrick Garland, and Warden Scott Finley of the Federal
Correctional Institution in Schuylkill for violations of the Rehabilitation
Act, Title VII of the Civil Rights Act of 1964, and the United States
Constitution. (Doc. 1). On January 5, 2024, the Court dismissed Warden
Finley from this action and further dismissed two of the plaintiff ’s claims:
Counts VIII and IX.1 (Doc. 24; Doc. 25). Now before the Court is a motion
1 	The Court also dismissed the plaintiff ’s disparate treatment
claims in Count V under Title VII of the Civil Rights Act of 1964 as it
related to the plaintiff ’s alleged reassignment. It did not, however,
dismiss the plaintiff ’s disparate treatment claims in Count V as pertinent
to the plaintiff ’s alleged denial of his request for accommodations.
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for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure filed by the Attorney General of the United States, Pamela
Bondi, concerning the plaintiff ’s remaining seven claims.2 (Doc. 36). The
motion has been briefed (Doc. 43; Doc. 44; Doc. 50; Doc. 51) and it ripe for
review.
I. 	Background3
In June 2019, the Federal Correctional Institution in Schuylkill,
Pennsylvania 	(FCI 	Schuylkill) 	hired 	the 	plaintiff 	as 	a 	recreational
specialist. The plaintiff ’s duties included organizing and overseeing all
recreational programs and classes at FCI Schuylkill, and he was directly
supervised by Christopher Cuff and Jennifer Reigel. This action concerns
numerous aspects of the plaintiff ’s employment at FCI Schuylkill.
On January 26, 2020, the plaintiff awoke with severe knee pain and
had difficulty moving his leg. Although he attempted to work, he was
unable to perform his duties due to his limited mobility and ongoing pain.
He promptly notified Supervisor Cuff of his condition, and Supervisor
2 Attorney General Pamela Bondi has substituted in this action for
former Attorney General, Merrick Garland.
3 The following facts are admitted by the plaintiff in response to the
defendant’s statement of material facts in Doc. 43.
See (Doc. 50-5).
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Cuff approved his request to leave for the remainder of the day to seek
medical attention. The plaintiff went to the hospital where he underwent
an X-ray of his knee; however, a review of the records indicates that no
medical provider identified any abnormalities.
On January 28, 2020, the plaintiff provided Supervisor Cuff with a
medical record from his physician, Thomas Martin M.D., which listed a
diagnosis of primary localized osteoarthritis of the right knee. Dr. Martin
informed Supervisor Cuff that the plaintiff was only able to work under
modified, 	light-duty 	restrictions, 	including 	limitations 	on 	kneeling,
squatting, 	and 	running. 	In 	response, 	Supervisor 	Cuff 	advised 	the
plaintiff that he could not return to work until all restrictions were lifted
and that he would be required to use his sick leave if he did not return to
work. The plaintiff subsequently submitted an updated medical record
lifting most of his prior restrictions. The only remaining limitation was a
prohibition on running while at work.
On February 4, 2020, the plaintiff texted Supervisor Cuff that he
had notified Human Resources of his intent to return to work that Friday.
He explained that Human Resources had informed him that he would
need to address that matter directly with his supervisor rather than
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through the department. Supervisor Cuff then told the plaintiff that the
decision regarding whether the plaintiff could return to work on a regular
or light-duty schedule rested with Warden Finley, rather than himself, so
the 	plaintiff 	should 	provide 	his 	updated 	medical 	documentation 	to
Warden 	Finley 	for 	approval. 	The 	plaintiff 	promptly 	forwarded 	the
updated medical record to Supervisor Cuff, Warden Finley, and Human
Resources.
On February 7, 2020, the plaintiff reported back to work but was
searched prior to entering his workplace. During the search, Supervisor
Cuff presented the plaintiff with a memorandum signed by Warden
Finley and dated February 6, 2020, informing him that he would be
placed on administrative leave for the following two days. Supervisor
Cuff also provided a second memorandum stating that the plaintiff would
be reassigned to the computer laboratory at the FCI Administration
building beginning on February 10, 2020. The plaintiff alleges that he
was given no explanation for the reassignment at that time. Two days
later, however, Warden Finley informed him that the reassignment was
due 	to 	an 	ongoing 	investigation 	involving 	the 	plaintiff 	bringing 	in
contraband into the institution.
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While assigned to the computer laboratory, the plaintiff alleges that
he experienced issues related to his race and national origin. He contends
that unnamed staff members repeatedly mocked his Spanish accent and
questioned 	his 	English 	proficiency. 	He 	further 	alleges 	that 	these
individuals 	made 	derogatory 	remarks 	suggesting 	that 	he 	drove 	a
Mercedes like “a drug dealer.” In addition, the plaintiff avers that he
faced 	scrutiny 	regarding 	his 	job 	performance. 	On 	March 	18, 	2020,
Supervisor Cuff approached him in his office and stated that staff had
raised concerns about him watching excessive television while at work.
The plaintiff alleges that this encounter occurred approximately thirty
minutes after he participated in an informal counseling session with an
EEO counselor, of which his supervisor and other officials were aware.
Moreover, on December 4, 2020, and during the height of the COVID
pandemic, the plaintiff describes an incident in which Warden Finley
closely monitored him all day and reprimanded him continuously for not
wearing a mask. The plaintiff brings his claims based on these events.
II. 	Legal Standard
Rule 56 of the Federal Rules of Civil Procedure dictates summary
judgment should only be granted if “there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome
of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute of material fact is “genuine” only if the evidence “is such that a
reasonable jury could return a verdict for the non-moving party.”
Id. at
248. In deciding a summary judgment motion, all inferences “should be
drawn in the light most favorable to the non-moving party, and where the
non-moving party’s evidence contradicts the movant’s, then the non-
movant’s must be taken as true.”
Pastore v. Bell Tel. Co. of Pa., 24 F.3d
508, 512 (3d Cir. 1994).
Parties seeking summary judgment bear “the initial responsibility
of 	informing 	the 	district 	court 	of 	the 	basis 	for 	its 	motion,” 	and
demonstrating the absence of a genuine dispute of material fact.
Celotext
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a
showing, the non-movant must set forth specific facts, supported by the
record, 	demonstrating 	that 	“the 	evidence 	presents 	a 	sufficient
disagreement to require submission to the jury.”
Anderson, 477 U.S. at
251–52. A court must first determine if the moving party has made
prima
facie showing that it is entitled to summary judgment when evaluating
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such a motion.
See Fed. R. Civ. P. 56(a);
Celotex, 477 U.S. at 331. Only
once that
prima facie showing has been made does the burden shift to the
nonmoving party to demonstrate the existence of a genuine dispute of
material fact.
See Fed. R. Civ. P. 56(a);
Celotex, 477 U.S. at 331.
Parties may cite to “particular parts of materials in the record,
including 	depositions, 	documents, 	electronically 	stored 	information,
affidavits or declarations, stipulations (including those made for the
purposes of the motion only), admissions, interrogatory answers or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(c)(4). “Although evidence may be considered in a form which is
inadmissible at trial, the content of the evidence must be capable of
admission at trial.”
Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599
(M.D. Pa. 2014);
see also Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d
378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary
judgment, to consider evidence that is not admissible at trial).
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III. 	Discussion
The plaintiff ’s remaining claims against defendant Bondi fall into
two categories: (1) violations of the Rehabilitation Act and (2) violations
of Title VII 	of the Civil Rights Act 	of 1964. 	The 	plaintiff ’s claims
concerning violations of the Rehabilitation Act are based on the plaintiff ’s
alleged knee injury, and those violations concerning Title VII are based
on the plaintiff ’s race and national origin.
A. The Rehabilitation Act, as amended, 29 U.S.C. § 701,
et
seq.
The 	plaintiff 	has 	brought 	five 	claims 	in 	violation 	of 	the
Rehabilitation Act: (1) failure to provide reasonable accommodations; (2)
disparate treatment; (3) retaliation; (4) interference; and (5) retaliatory
hostile work environment.
Section 501(f) of the Rehabilitation Act, 29 U.S.C. § 791(f), requires
a federal employer to comply with the standards set forth in Title I of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111
et seq., and
Sections 501 and 510 of the ADA, 42 U.S.C. §§ 12201-12204, 12210. First,
Section 102(a) of the ADA prohibits an employer from discriminating
against “a qualified individual on the basis of disability,” 42 U.S.C. §
12112(a), a prohibition that includes failing to reasonably accommodate
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such individuals.
See Hohider v. United Parcel Serv., Inc., 574 F.3d 169,
191 (3d Cir. 2009). Second, Section 503(a) of the ADA prohibits retaliatory
discrimination, providing that “[n]o person shall discriminate against
any individual because such individual has opposed any act or practice
made unlawful by this chapter or because such individual made a charge,
testified, assisted, or participated in any matter in an investigation,
proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Third,
the Third Circuit has also held that it is unlawful to retaliate against an
employee for making a good faith request for an accommodation, even if
the employee is not actually “disabled” under the ADA.
See Shellenberger
v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003). Appropriately,
precedent interpreting the ADA is equally relevant to interpreting the
Rehabilitation Act.
See, e.g., Fowler v. UPMC Shadyside, 578 F.3d 203,
208 	(3d Cir. 	2009) 	(characterizing 	the 	ADA and Rehabilitation 	Act
standards as “coextensive”).
1. Failure to Provide Reasonable Accommodations
The plaintiff argues that the defendant violated the Rehabilitation
Act by failing to provide reasonable accommodations for his known knee
impairment. (Doc. 1, ¶ 183). To prevail on a failure to accommodate claim,
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a plaintiff must establish that (1) he was disabled and his employer knew
it; (2) he requested an accommodation or assistance; (3) his employer did
not make a good faith effort to assist; and (4) he could have been
reasonably accommodated.
See Taylor v. Phoenixville Sch. Dist., 184 F.3d
296, 	319–320 	(3d 	Cir. 	1999). 	The 	defendant 	moves 	for 	summary
judgment, arguing that the plaintiff has failed to establish that he is
disabled 	and, 	alternatively, 	that 	the 	record 	demonstrates 	that 	the
defendant made a good-faith effort to accommodate him.
We turn to the defendant’s contention concerning the plaintiff ’s
disability. Under the Rehabilitation Act, “an individual has a disability if
she (1) has ‘a physical or mental impairment that substantially limits one
or more major life activities of such individual’; (2) has ‘a record of such
an impairment’; or (3) is ‘regarded as having such an impairment.’”
Koci
v. Cent. City Optical Co., 69 F. Supp. 3d 483, 486–87 (E.D. Pa. 2014)
(quoting 42 U.S.C. § 12102(1)). “[M]ajor life activities include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, 	reading, 	concentrating, 	thinking, 	communicating, 	and
working.” 42 U.S.C. § 12101(2)(A). The defendant contends that the
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plaintiff 	has 	failed 	to 	establish 	a 	disability 	because 	he 	has 	not
demonstrated that his alleged osteoarthritis substantially limits a major
life 	activity. 	We 	conclude, 	however, 	that 	the 	plaintiff 	has 	produced
sufficient evidence in the record to satisfy this burden.
The defendant admits that a doctor diagnosed the plaintiff with
“primary localized osteoarthritis” in his right knee. (Doc. 43, ¶ 13). That
same physician recommended that the plaintiff take off one week from
work due to that injury and further advised that, upon his return, he
work a modified schedule limiting his running, squatting, and kneeling.
See (
id.) (“[N]o running, no restraints, squatting, kneeling regular duties
on 02/22/2022”). We find it reasonable to conclude that restrictions on
running, squatting, or kneeling amount to limitations on a major life
activity.4 	Moreover, 	the 	defendant 	acknowledges 	that, 	later 	in 	the
plaintiff ’s employment, he was unable to work overtime due to his knee
4 The defendant argues that the Court should take notice that the
physician eventually removed the entirety of the plaintiff ’s restrictions
within a matter of days after the plaintiff ’s original note to his employer.
(Doc. 44, at 16). While we acknowledge the defendant’s argument, we
cannot overlook the original note which imposed those restrictions in the
first place. Indeed, the plaintiff argues that the restrictions were lifted
not because they were unnecessary, but because the defendant would not
permit him to return to work while they remained in place. (Doc. 50-1, at
8).
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condition. (Doc. 43, ¶ 37). However, we do not view the plaintiff ’s knee
injury in isolation. The plaintiff testified that he originally hurt his knee
in high school in 1998 and reinjured that knee in 2013. (
Id., ¶ 50). The
plaintiff further stated that he reinjured that same knee in 2016 or 2017.
(
Id., ¶ 52). We find that the record not only supports the plaintiff ’s
assertion that his knee injury limited his major life activities in 2020, but
also permits a reasonable factfinder to conclude that he has experienced
ongoing issues with that injury since hurting it in 1998. Therefore,
viewing the evidence in a light most favorable to the non-moving plaintiff,
we find that there remains a genuine dispute of material fact as to the
plaintiff ’s disability that precludes summary judgment.
The defendant also moves for summary judgment concerning the
third element of the plaintiff ’s failure-to-accommodate claim, arguing
that he has failed to show that the defendant did not make a good faith
effort to assist him concerning his knee injury. The defendant contends
that “[a]lthough [the plaintiff] had to report to the computer lab because
he was under investigation, when he reported back to work from the
alleged knee injury, he had light duty work, the work he requested.” (Doc.
44, at 27). Moreover, the defendant argues that Supervisor Cuff engaged
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in 	the 	interactive 	process 	with 	the 	plaintiff 	to 	obtain 	clarification
regarding his injuries. (
Id.). The plaintiff contends that the defendant
failed to accommodate him or engage in the interactive process by
prohibiting 	his 	return 	to 	work 	unless 	he 	could 	do 	so 	without 	any
restrictions. (Doc. 50-1, at 9). Therefore, the plaintiff was compelled to
forgo 	his 	work 	restrictions 	upon 	returning, 	despite 	his 	physician’s
recommendation to limit running, squatting, and kneeling. (Doc. 43, ¶
13). The parties’ differences of opinion concerning the events in question
create a genuine dispute of material fact as to whether the defendant
made a good faith effort to assist the plaintiff with his disability. This
determination, however, is best left to the jury. The defendant’s motion
for summary judgment as to this claim will be denied.
2. Disparate Treatment
Disparate 	treatment 	claims 	under 	the 	Rehabilitation 	Act 	are
governed 	by 	the 	burden-shifting 	framework 	outlined 	in
	McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Wishkin v. Potter, 476 F.3d
180, 185 (3d Cir. 2007). Under the
McDonnell Douglas paradigm,
[P]laintiff has the initial burden to make a prima facie
showing of discrimination, but if s/he does so, the burden
shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employment action. If
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the defendant meets this burden, the presumption of
discriminatory action raised by the prima facie case is
rebutted. However, the plaintiff must then be afforded
an 	opportunity 	to 	show 	that 	the 	employer’s 	stated
reason for the employment action … was pretextual. In
order to prove the employer’s explanation is pretextual,
the plaintiff must cast sufficient doubt upon each of the
legitimate reasons proffered by the defendant so that a
factfinder could reasonably conclude that each reason
was a fabrication or allow the factfinder to infer that
discrimination was more likely than not [the sole] cause
of the adverse employment action.
Id. (citations, internal quotation marks, brackets, and ellipses omitted).5
Concerning the first step of
	McDonnell Douglas, to establish a
prima facie case of discrimination under the Rehabilitation Act, an
employee must show: (1) that he or she has a disability; (2) that he or she
5 We note that
Wishkin articulated a standard, borrowed from the
Title VII and ADA context, permitting pretext to be proven by adducing
sufficient evidence for a factfinder to infer that discrimination was more
likely than not a
	motivating or determinative cause of the adverse
employment action.
Wishkin, 476 F.3d at 185. But in light of the statutory
text of the Rehabilitation Act, a plaintiff asserting a claim under this Act
must demonstrate that discrimination on the basis of disability was the
sole cause of an adverse employment action, not merely a motivating or
determinative cause, as the existence of any alternative cause would be
fatal to the claim under this statute.
See Lamberson v. Pennsylvania, 561
F. App’x 201, 207 (3d Cir. 2014);
CG v. Pennsylvania Dep’t of Educ., 734
F.3d 229, 236 n.11 (3d Cir. 2013);
New Directions Treatment Servs. v. City
of Reading, 490 F.3d 293, 400 n.4 (3d Cir. 2007);
Menkowitz v. Pottstown
Mem’l Med. Ctr., 154 F.3d 113, 125 (3d Cir. 1998);
Newman v. GHS
Osteopathic, Inc., 60 F.3d 153, 157–58 (3d Cir. 1995).
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is otherwise qualified to perform the essential functions of the job, with
or without reasonable accommodations by the employer; and (3) that he
or 	she 	was 	nonetheless 	terminated 	or 	otherwise 	prevented 	from
performing the job.
Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996).
That 	employee 	must 	also 	demonstrate 	a
	prima 	facie 	showing 	that
reasonable accommodations were possible.
Id. Here, the plaintiff alleges
that the defendant denied him a temporary light duty position as an
accommodation for the plaintiff ’s disability, while allowing a similarly-
situated 	Caucasian 	employee 	to 	have 	that 	accommodation. 	The
defendant 	has 	moved 	for 	summary 	judgment, 	contending 	that 	the
plaintiff ’s claim fails because he does not qualify as disabled under the
Rehabilitation Act. But we have already found above that a reasonable
factfinder could conclude that the plaintiff ’s knee injury constitutes a
disability under the Rehabilitation Act, and at the very least, provides a
genuine dispute of material fact as to the plaintiff ’s disability that
precludes summary judgment. Therefore, the defendant’s motion for
summary judgment as to this claim will also be denied.
3. Retaliation
To 	make 	out 	a 	prima 	facie 	case 	of 	retaliation 	under 	the
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Rehabilitation Act, a plaintiff must show that (1) he engaged in protected
activity; (2) he suffered a materially adverse action; and (3) there is a
causal connection between the adverse action and the protected activity.
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500–01 (3d Cir. 1997). Here,
the plaintiff points to his accommodation requests for his disability and
his initiation and pursuance of an EEO complaint as protected activities,
arguing that the defendant retaliated against him by reassigning him
and placing him under investigation.6 The defendant does not contest the
first two elements and moves for summary judgment on the third,
arguing that the plaintiff cannot establish a causal link between his
protected activities and his reassignment and investigation, because the
defendant was unaware of those activities when taking the adverse
actions.
The plaintiff does not directly address the contention that the
defendant was unaware of his activities but rather appears to suggest
that the timing between his request for accommodations and initiation of
6 	The 	plaintiff 	also 	details 	that 	he 	was 	subjected 	to 	“yelling,
screaming, [and] heightened scrutiny” (Doc. 50-1, at 14) because of his
actions. The plaintiff, however, does not seem to base his retaliation claim
on these indirect measures and does not attempt to argue that they
constitute “adverse actions.”
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an 	EEO 	complaint 	and 	his 	reassignment 	and 	placement 	under
investigation is sufficient to rise to an inference of a causal connection
between the activities and the adverse actions.7 “[T]emporal proximity
between the protected activity and the [adverse action can be itself]
sufficient to establish a causal link.”
	Shellenberger, 318 F.3d at 189
(internal citation and quotation omitted). However, “the timing of the
alleged retaliatory action must be unusually suggestive of retaliatory
motive before a causal link will be inferred.”
Id. at 189 n.9 (internal
citation and quotation omitted).
We first analyze the temporal proximity of the initiation of the EEO
complaint 	in 	consideration 	with 	the 	plaintiff ’s 	reassignment 	and
investigation. The Third Circuit has held that “[a]lthough there is no
bright line rule as to 	what 	constitutes unduly suggestive temporal
proximity, a gap of three months between the protected activity and the
7 In the plaintiff ’s brief in opposition to the defendant’s motion for
summary judgment, the plaintiff simply argues “[i]n this case, like
Bernhard [
v. Brown & Brown of Lehigh Valley, Inc., 720 F. Supp. 2d 694
(E.D. Pa. 2010)], Defendant took action against Plaintiff by reassigning
him and placing him under investigation for reasons that strain credulity
given the timing of Plaintiff ’s reassignment and the lack of evidence as
to why he was placed under investigation.” (Doc. 50-1, at 14). The
plaintiff does not elaborate further.
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adverse action, without more, cannot create an inference of causation and
defeat summary judgment.”
	LeBoon v. Lancaster Jewish Cmty. Ctr.
Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (citing
Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001));
see also Andreoli v. Gates, 482 F.3d
641, 650 (3d Cir. 2007) (finding that a five-month time period between an
employee’s complaint and the adverse action was, without additional
evidence, 	insufficient to raise 	an inference of causation). Here, the
plaintiff admits that he made his EEO complaint in 2018, but that he was
notified of his reassignment on February 7, 2020, with his reassignment
occurring on February 10, 2020. (Doc. 43, ¶ 35). Moreover, he concedes
that 	he 	was 	notified 	on 	February 	12, 	2020, 	that 	he 	was 	under
investigation for misconduct. (
Id., ¶ 38). Therefore, at a minimum, a gap
of at least a year existed between the protected activity and the adverse
actions. 	This 	temporal 	proximity, 	without 	more, 	cannot 	create 	an
inference of causation, and the plaintiff has failed to identify any other
acts of discrimination within this period to suggest a causal connection
between the initiation of the EEO complaint and her reassignment and
investigation. Thus, the plaintiff ’s retaliation claim fails to the extent
that the plaintiff relies on the initiation of the EEO complaint as her
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protected activity.
The 	plaintiff ’s 	request 	for 	accommodations 	for 	his 	disability,
however, first occurred on January 28, 2020, when the plaintiff texted his
supervisor his medical record with the necessary modifications to his
work duties. (Doc. 43, ¶¶ 11-15). Therefore, the temporal proximity
between 	his 	request 	for 	accommodations 	and 	his 	subsequent
reassignment was only approximately ten days. The Third Circuit has
held that this temporal proximity alone is sufficient to create a causal
link between an engagement in a protected activity and an adverse
action.
See Shellenberger, 318 F.3d at 189 (finding that ten days between
an 	alleged 	protected activity 	and a 	subsequent 	adverse 	action 	was
sufficient to establish a causal connection between the two actions). But
we 	must also 	acknowledge that courts have held that “a temporal
proximity greater than ten days requires supplementary evidence of a
retaliatory motive.”
Gairloch v. Pennsylvania State Univ., 84 F. Supp. 3d
407, 417 (M.D. Pa. 2015) (citing
Farrell v. Planters Lifesavers Co., 206
F.3d 271, 280 (3d Cir. 2000)). Therefore, we note that even if the temporal
proximity here was greater than ten days, the plaintiff has provided
sufficient supplementary evidence of a retaliatory motive to establish a
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causal 	connection. 	In 	addition 	to 	the 	temporal 	proximity 	of 	the
defendant’s actions, the record indicates that the plaintiff ’s requests for
accommodations were not isolated, but rather occurred repeatedly over
several days with the plaintiff continuously modifying his request in
order to return to work. (Doc. 43, ¶¶ 14–33). The plaintiff asserts that he
was compelled to remove his medical restrictions against his doctor’s
advice because the defendant would not allow him to work while adhering
to those restrictions. We find the circumstances and the timing of the
reassignment is sufficient to allow a reasonable factfinder to conclude
that 	the 	defendant’s 	adverse 	actions 	were 	unduly 	suggestive 	of 	a
retaliatory motive against the plaintiff. Therefore, the plaintiff has
demonstrated 	enough 	evidence 	to 	demonstrate 	a 	causal 	connection
between his request for accommodations and his subsequent demotion
and investigation.
Nonetheless, the defendant also argues that even if the plaintiff can
satisfy a prima facie case of retaliation under step one of
McDonnell
Douglas, the Court should still grant its motion for summary judgment
because the plaintiff cannot satisfy its burden under the third step of
McDonnell Douglas, requiring the employee to show that the employer’s
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legitimate, nondiscriminatory reason was pretextual. The Third Circuit
has recognized that a plaintiff may demonstrate pretext by pointing to
evidence allowing a factfinder to disbelieve the employer’s reason for the
adverse 	employment 	action.
	Willis 	v. 	UPMC 	Children’s 	Hosp. 	of
Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (citing generally
Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). The evidence must indicate
“such 	weaknesses, 	implausibilities, 	inconsistencies, 	incoherencies, 	or
contradictions in the employer’s proffered legitimate reasons” to satisfy
the 	factfinder 	that 	the 	employer’s 	actions 	could 	not 	have 	been 	for
nondiscriminatory reasons.
Id. at 644–45 (citing
Fuentes, 32 F.3d at 765).
In other words, a plaintiff must show that the employer’s proffered
reason was “so plainly wrong that it cannot have been the employer’s real
reason.”
Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1109 (3d Cir. 1997).
Here we find that the plaintiff has produced such evidence.
The 	defendant 	contends 	that 	the 	plaintiff ’s 	reassignment 	was
driven solely by the evolving investigation and the decision to keep him
away from inmates was for safety reasons. (Doc. 44, at 30). But the record
suggests that the actions underlying this claim began immediately after
the plaintiff first requested accommodations, as he describes a series of
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allegedly retaliatory measures consisting of: (1) his forced return to work
without accommodations (Doc. 50-5, ¶¶ 15–19); (2) his reassignment (
Id.);
(3) an investigation (
Id., ¶ 38); (4) verbal harassment (
Id., ¶ 47); and (5)
consistent monitoring (
Id.).
See also generally (Doc. 50-1). A reasonable
factfinder could conclude that the plaintiff ’s request for accommodations,
rather than the defendant’s safety concerns, proved to be the catalyst that
began 	the 	series 	of 	retaliatory 	measures, 	starting 	first 	with 	the
reassignment. Therefore, the plaintiff ’s evidence, at a minimum, creates
a genuine dispute of material fact as to pretext that is better left for the
factfinder. The defendant’s motion for summary judgment is therefore
denied as to this claim.
4. The Remaining Claims: Unlawful Interference, Retaliatory
Hostile Work Environment
The plaintiff brings two additional claims under the Rehabilitation
Act: 	(1) 	unlawful 	interference 	and 	(2) 	retaliation 	hostile 	work
environment.
The plaintiff ’s unlawful interference claim is predicated upon 42
U.S.C. § 12203(b), which provides that:
It shall be unlawful to coerce, intimidate, threaten, or
interfere 	with 	any 	individual 	in 	the 	exercise 	or
enjoyment 	of, 	or 	on 	account 	of 	his 	or 	her 	having
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exercised or enjoyed, or on account of his or her having
aided or encouraged any other individual in the exercise
or enjoyment of, any right granted or protected by this
chapter.
42 U.S.C. § 12203(b). While the Third Circuit has not defined the
elements required for a § 12203(b) claim in this context, some courts of
appeals have adopted a test analogous to the one used to analyze
interference claims under the Fair Housing Act.
See Kelly v. Graphic
Packagin Int’l, LLC, No. 24-1400, 2025 WL 573766, at *4 (6th Cir. Feb.
21, 2025);
Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 550 (7th Cir.
2017);
Brown v. City of Tucson, 336 F.3d 1181, 1191 (9th Cir. 2003). Other
courts have acknowledged that a strict construction of the statutory
language in § 12203(b) could be appropriate.
See Menoken v. Dhillon, 975
F.3d 1, 10 (D.C. Cir. 2020). As the D.C. Court of Appeals noted, the
primary substantive difference between the tests is that the former
requires an employer’s discriminatory intent while the latter focuses on
how “a reasonable employee would have understood the employer’s
action.”
Id. In either case, however, a plaintiff must plead some sort of
interference 	on 	behalf 	of 	the 	defendant 	that 	prevented 	him 	from
exercising 	or 	enjoying 	the 	rights 	granted 	or 	protected 	by 	the
Rehabilitation 	Act. 	Here, 	the 	defendant 	has 	moved 	for 	summary
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judgment on the plaintiff ’s unlawful interference claim, arguing that
there is no evidence that the defendant interfered with the plaintiff ’s
rights under the Rehabilitation Act.
Regarding 	the 	plaintiff ’s 	retaliatory 	hostile 	work 	environment
claim under the Rehabilitation Act, a plaintiff must establish that: “(1)
[he] suffered intentional discrimination of [his] protected activity; (2) the
discrimination 	was 	severe 	or 	pervasive; 	(3) 	the 	discrimination
detrimentally affected [him]; (4) it would have detrimentally affected a
reasonable person in like circumstances; and (5) a basis for employer
liability is present.”
Komis v. Sec’y of the United States Dep’t of Lab., 918
F.3d 289, 293 (3d Cir. 2019). The defendant has moved for summary
judgment, arguing that the plaintiff has failed to show that the alleged
discrimination 	was 	severe 	or 	pervasive, 	and 	that 	the 	alleged
discrimination detrimentally affected him. (Doc. 44, at 31).
The plaintiff, however, has failed to offer any substantive response
in his brief in opposition to the defendant’s arguments concerning either
of these claims.
See generally (Doc. 50-1). Indeed, the plaintiff ’s brief in
opposition only seemingly addresses the defendant’s motion for summary
judgment 	as 	it 	pertains 	to 	his 	failure 	to 	accommodate, 	disability
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discrimination, and retaliation claims under the Rehabilitation Act.
See
(
Id., at 16) (“Defendant’s Motion for Summary Judgment should fail as to
the 	issue 	of 	failure 	to 	accommodate, 	disability 	discrimination 	and
retaliation.”). Based on the plaintiff ’s failure to address the substance of
the defendant’s arguments in favor of summary judgment on these
claims, we find that the plaintiff has abandoned them.
See Cicchiello v.
Beard, 726 F. Supp. 2d 522, 531 (M.D. Pa. 2010);
see also Resolution Tr.
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[T]he onus is
upon 	the 	parties 	to 	formulate 	arguments; 	grounds 	alleged 	in 	the
complaint 	but 	not 	relied 	upon 	in 	summary 	judgment 	are 	deemed
abandoned.”);
Carroll v. Lancaster Cnty., 301 F. Supp. 3d 486, 499–500
(E.D. Pa. 2018) (collecting cases);
Glover v. City of Wilmington, 966 F.
Supp. 2d 417, 428 (D. Del. 2013) (“Presumably, counsel’s choice not to
respond to the 	[defendant’s] argument 	was a reasoned 	professional
judgment. 	It 	was 	the 	essence 	of 	a 	waiver.”). 	Therefore, 	summary
judgment will be granted in favor of the defendant with respect to the
plaintiff ’s 	unlawful 	interference 	claim 	and 	retaliatory 	hostile 	work
environment claim.
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B. Title VII of the Civil Rights Act of 1964
The plaintiff also brings three claims in violation of Title VII: (1)
disparate treatment; (2) retaliation; and (3) retaliatory hostile work
environment.
Discrimination claims under Title VII are subject to the same
burden-shifting
McDonnell Douglas framework seen in the plaintiff ’s
claims for violations of the Rehabilitation Act. The plaintiff bears the
burden of making out a prima facie case of discrimination, which requires
a showing that: (1) he is a member of a protected class; (2) he was
qualified for his position; (3) he suffered an “adverse employment action”;
and (4) the circumstances of the adverse action give rise to an inference
of discrimination.
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.
2003) (per curiam). Once a plaintiff establishes a prima facie case of
discrimination, the burden shifts to the employer to offer a legitimate,
nondiscriminatory rationale for its conduct.
Id. If the employer meets this
burden, 	the 	plaintiff 	must 	establish 	that 	the 	employer’s 	proffered
explanation 	is 	pretext 	for 	discrimination.
	Id. 	Here, 	the 	defendant
contests the third and fourth elements of the plaintiff ’s discrimination
claim, and further argues that the plaintiff has failed to show pretext as
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necessary under the third step of
McDonnell Douglas.
Retaliation claims under Title VII also follow the standard seen in
McDonnell Douglas.
Lanza v. Postmaster Gen. of U.S., 570 F. App’x 236,
240 (3d Cir. 2014). A plaintiff must show that: (1) he engaged in protected
activity; (2) the employer took a material adverse action against the
plaintiff; and (3) there exists a causal connection between the adverse
action and the protected activity.
	LeBoon, 503 F.3d at 231–32. The
defendant has moved for summary judgment on the basis that the
plaintiff has failed to show the third element in his prima facie case, and
moreover, any pretext under the third step of
McDonnell Douglas.
A retaliation hostile work environment claim under Title VII, like
under the Rehabilitation Act, requires a plaintiff to establish that: (1)
[he] 	suffered 	intentional 	discrimination 	because 	of 	[his] 	protected
activity; 	(2) 	the 	discrimination 	was 	severe 	or 	pervasive; 	(3) 	the
discrimination 	detrimentally 	affected 	[him]; 	(4) 	it 	would 	have
detrimentally affected a reasonable person in like circumstances; and (5)
a basis for employer liability is present.”
Komis, 918 F.3d at 293 (citations
omitted). To determine whether an environment is hostile, a court must
consider the totality of the circumstances, including “the frequency of the
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discriminatory conduct; its severity; whether it is physically threatening
or 	humiliating, 	or 	a 	mere 	offensive 	utterance; 	and 	whether 	it
unreasonably interferes with an employee’s work performance.”
Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Here, the defendant moves for
dismissal on this claim due to the plaintiff ’s failure to show that the
alleged discrimination was pervasive or severe, and that the alleged
discrimination detrimentally affected him.
The 	plaintiff, 	however, 	has 	failed 	to 	respond 	to 	any 	of 	the
defendant’s arguments for dismissal of these claims. Not only does the
plaintiff fail to address the merits of the defendant’s arguments, but he
also fails to even acknowledge his Title VII claims in their entirety
throughout his brief in opposition. Indeed, as we mentioned above, the
plaintiff ’s brief in opposition only seemingly addresses the defendant’s
motion for summary judgment as it pertains to his claims under the
Rehabilitation Act for failure to accommodate, disability discrimination,
and retaliation. Therefore, we find that the plaintiff has abandoned these
claims and summary judgment will be granted.
	Skirpan v. Pinnacle
Health Hospitals, No. 1:07-CV-1703, 2010 WL 3632536, at *6 (M.D. Pa.
Apr. 21, 2010) (“Where a plaintiff has brought a cause of action which is
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challenged through motion for summary judgment as legally insufficient,
it is incumbent upon to the plaintiff to affirmatively respond to the merits
of a summary judgment motion. Indeed, a Plaintiff ’s failure to respond to
these arguments constitutes an abandonment of these causes of action
and essentially acts as a waiver of these issues.”).
IV. 	Conclusion
For the foregoing reasons, the defendant’s motion for summary
judgment will be granted in part and denied in part. The defendant’s
motion for summary judgment will be denied as to the plaintiff ’s claims
under 	the 	Rehabilitation 	Act: 	(1) 	failure 	to 	provide 	reasonable
accommodations; (2) disparate treatment; and (3) retaliation concerning
the plaintiff ’s request for reasonable accommodations. The motion for
summary judgment will be granted as to the following claims under the
Rehabilitation Act: (1) retaliation concerning the plaintiff ’s prior EEO
complaint; (2) unlawful interference; and (3) retaliatory hostile work
environment. Summary judgment will be granted as to all claims under
Title VII: (1) disparate treatment; (2) retaliation; and (3) retaliatory
hostile work environment.
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An appropriate order follows.
Dated: March 11, 2026
	s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States District Judge
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