Samantha Peifer v. Pennsylvania Board of Probation and Parole

                                          PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                      No. 23-1081
                     ____________

                 SAMANTHA PEIFER,
                     Appellant

                           v.

 COMMONWEALTH OF PENNSYLVANIA, BOARD OF
        PROBATION AND PAROLE
             ____________

     On Appeal from the United States District Court
        For the Eastern District of Pennsylvania
           (District Court No. 2-21-cv-05432)
       District Judge: Honorable Chad F. Kenney
                      ____________

              Argued on January 30, 2024
                   ____________

 Before: KRAUSE, PORTER, and CHUNG, Circuit Judges

                  (Filed: July 3, 2024)

David M. Koller [ARGUED]
Koller Law
2043 Locust Street
Suite 1B
Philadelphia, PA 19103

       Counsel for Appellant


Michael J. Scarinci [ARGUED]
Office of Attorney General of Pennsylvania
Strawberry Square 15th Floor
Harrisburg, PA 17120

       Counsel for Appellee
                       ___________

                 OPINION OF THE COURT
                      ____________

CHUNG, Circuit Judge.

       Samantha Peifer sued her employer, the Pennsylvania
Board of Probation and Parole (“Board”), claiming pregnancy
discrimination and retaliation under Title VII of the Civil
Rights Act of 1964 (“Title VII”) and the Pregnancy
Discrimination Act (“PDA”). The District Court granted the
Board’s motion for summary judgment.

       We will affirm in part and vacate in part. We agree with
the District Court that Peifer’s claims partly fail but conclude
that the District Court is best situated to analyze in the first
instance the impact, if any, of the Supreme Court’s recent
holding in Muldrow v. City of St. Louis, 

 (2024),
on whether Peifer makes out a prima facie case under an
adverse employment action theory based on the Board’s




                               2
denials of her accommodation requests. We further conclude
that Peifer makes out a prima facie case of pregnancy
discrimination based on the Board’s denials of her light-duty
requests under a failure to accommodate theory. We will thus
vacate and remand as to Peifer’s adverse employment theory
and failure to accommodate theory for further analysis, and
affirm the District Court’s decisions on Peifer’s constructive
discharge allegation and retaliation claim.

I.    BACKGROUND

      A.      Peifer’s Background

       Samantha Peifer worked for the Board as an Alcohol
and Other Drugs agent. In that role, she worked with drug and
alcohol offenders on parole. Her job required her to be able to
perform various physical functions—for instance, running to
catch escaping offenders, restraining offenders during arrests,
and moving offenders to take them into custody.

       In September 2019, Peifer was diagnosed with multiple
sclerosis. About four months later, in January 2020, she
learned that she was pregnant

      B.      Peifer Asks for Light Duty and Files Her First
              EEOC Charge

      Around March 2020, Peifer began asking the Board to
accommodate her inability to perform certain tasks due to her
pregnancy by assigning her to work “light duty,” also known




                              3
as “modified duty.”1 App. 247. At first, she made informal
requests. On March 14, 2020, she formally requested light
duty by sending an email with a doctor’s note to her supervisor,
Joseph Bentzley. Peifer said that she was concerned about her
pregnancy and asked to do the same type of modified work that
the Board provided for employees who were injured at work or
on “desk duty” for discipline. 

 (internal quotation marks
omitted).

       The Board’s Eastern District Director, Michelle Rivera,
denied Peifer’s request the next day. Rivera said that
“[m]odified/light duty for any Parole Board employee is only
approved for work related injury.” 

 at 247–48. Rivera also
told Peifer that if she could not “meet all of [the] essential
functions” of her job, she should talk to the Board’s Family and
Medical Leave Act (“FMLA”) coordinator, id. at 248, in effect,
to discuss taking unpaid leave under the FMLA.

        A few days later, on March 25, Peifer sent Director
Rivera and supervisor Bentzley an updated doctor’s note. The
note listed ninety-four functions of Peifer’s role and said that
Peifer could not perform twenty-three of them. For example,
the note said that Peifer could not run or use certain kinds of
force to catch, arrest, or move offenders. Rivera responded
almost immediately and repeated the statements in her first
denial: that the Board only approved light duty for employees
with work-related injuries and that if Peifer could not do the



1
       The parties use the terms “light” and “modified” duty
interchangeably. Unless quoting the record, we will use the
term “light duty.”




                               4
essential functions of her job, she should talk to the FMLA
coordinator.

       Peifer took leave starting on March 26. She used a
combination of unpaid FMLA leave and vacation time. About
a month later, on April 21, Peifer filed a charge with the U.S.
Equal Employment Opportunity Commission (“EEOC”)
alleging discrimination based on sex, pregnancy, and
disability, as well as retaliation.

        On May 14, 2020, the Board changed course and
supervisor Bentzley emailed Peifer to say that the Board had
“the ability to accommodate [her] request [for modified duty]
based on [her] physician’s restrictions.” Id. at 248–49
(alterations in original). The Board did not state why it could
now accommodate her light-duty request and, during discovery
in this case, Bentzley testified that the accommodation was
provided due to Peifer’s multiple sclerosis diagnosis. In
assigning Peifer to light duty, the Board provided Peifer with a
“Modified Duty Position Description.” Id. at 249. The
Position Description said that Peifer’s work would be modified
according to the “restrictions” in her doctor’s note. Id. It also
said that Peifer would work a specified “schedule” and that the
“majority of [her] responsibilities” would be “conducted in the
office.” Id. Peifer signed the Position Description.

       Peifer ended her leave and began her light-duty
assignment on May 18. When she resumed work, the Board
reinstated the leave that Peifer took and reimbursed her for the
salary she lost during her period of unpaid leave.




                               5
       C.     Peifer Asks for Another Accommodation and
              Files Her Second EEOC Charge

        Ten days after Peifer began her light-duty assignment,
on May 28, 2020, she asked for another accommodation. She
submitted another doctor’s note stating her doctor’s opinion
that she should “be allowed to work from home due to her high
risk pregnancy and her risk of exposure to COVID-19 in the
workplace,” or “[i]f that is not possible, she must be provided
the proper personal protective equipment in the form of a mask,
face shield and gloves at all times.” Id. at 250. In response,
the Board provided her with personal protective equipment
(“PPE”), but did not let her work from home. The Board
explained to Peifer that, consistent with her Modified Duty
Position Description, her “modified duty position … require[d
her] to report to the office and complete a majority of [her] job
responsibilities in the office.” Id. at 237.

       Peifer filed a second charge with the EEOC on June 26,
2020 alleging discrimination based on sex, pregnancy, and
disability, as well as retaliation.

       D.     Peifer Resigns and Files Her Third EEOC
              Charge

        On September 23, 2020 Peifer resigned by email. She
stated, “I am resigning solely in response to the discriminatory
treatment I have been subjected to by yourself and others in my
chain of command and consider myself constructively
discharged.” Id. at 250.

       After Peifer resigned, she filed a third charge with the
EEOC, again alleging discrimination based on sex, pregnancy,
and disability, as well as retaliation.




                               6
       E.     Procedural History

       The EEOC issued Peifer a right-to-sue letter for all three
charges. Peifer then filed a complaint against the Board in the
United States District Court for the Eastern District of
Pennsylvania. She claimed discrimination and retaliation
under Title VII and the PDA.2 The Board moved for summary
judgment, and the District Court granted its motion, deciding
that Peifer could not make out a prima facie case for any of her
claims. Peifer timely appealed.

II.    DISCUSSION3

       Peifer challenges the District Court’s order granting
summary judgment for the Board. We conduct plenary review
of the District Court’s summary judgment ruling. See Barna v.
Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 

 (3d Cir. 2017). Summary judgment is appropriate if the
Board has shown that there is “no genuine dispute as to any
material fact” and that it is “entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In determining whether summary
judgment is appropriate, “[t]he evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in
h[er] favor.” Anderson v. Liberty Lobby, Inc., 

,

2
        Peifer brought other claims under state and federal law.
The Board filed a partial motion to dismiss for lack of
jurisdiction, and the District Court dismissed all of Peifer’s
claims but the ones discussed here.
3
        The District Court had jurisdiction under 42 U.S.C. §
2000e-5(f)(3) and 

 and 1367(a). We have
jurisdiction under 

.




                                7
255 (1986) (citing Adickes v. S. H. Kress & Co., 

,
158–59 (1970)). Applying that standard, we evaluate Peifer’s
discrimination and retaliation claims in turn.

       A.     Discrimination Claim

       Peifer brings her pregnancy discrimination claim under
Title VII and the PDA. Title VII prohibits employers from
discriminating against employees based on certain protected
characteristics, including “because of … sex.” 42 U.S.C. §
2000e-2(a)(1). The PDA amends Title VII to specifically
prohibit discrimination against pregnant employees. See id. §
2000e(k). It does so in two key ways.

       First, the PDA makes clear that Title VII’s prohibition
against sex discrimination includes pregnancy discrimination.
It does so through its first clause, which provides that “[t]he
terms ‘because of sex’ or ‘on the basis of sex’” in Title VII
“include … because of or on the basis of pregnancy.” Id. This
is the first theory of pregnancy discrimination that Peifer
alleges, claiming that she suffered adverse employment actions
because of her pregnancy (“adverse employment action
theory”).

        Second, the PDA specifically provides that employers
may not discriminate in the way they treat pregnancy-related
inability to work. It does so through its second clause, which
states that “women affected by pregnancy … shall be treated
the same for all employment-related purposes … as other
persons not so affected but similar in their ability or inability
to work.” Id.; see also Young v. United Parcel Serv., Inc., 

, 226–28 (2015) (explaining how the PDA’s two
clauses work together); Cal. Fed. Sav. & Loan Ass’n v. Guerra,

, 284–85 (1987) (same). This is the second theory




                               8
of pregnancy discrimination that Peifer alleges, claiming that
the Board failed to accommodate her while it accommodated
other Board employees similar in their inability to work
(“failure to accommodate theory”).

       Peifer does not offer direct evidence of discrimination;
as a result, she must prove discrimination using the burden-
shifting framework set out in McDonnell Douglas Corp. v.
Green, 

 (1973). See Young, 

.

         Under the McDonnell Douglas framework, the plaintiff
has the “initial burden … of establishing a prima facie case of
… discrimination.” McDonnell Douglas, 

.
Although the Supreme Court has repeatedly emphasized that
the elements of that prima facie case will vary with different
factual situations, it has said that at root, the plaintiff’s initial
burden is to show “[adverse] actions taken by the employer
from which one can infer, if such actions remain unexplained,
that it is more likely than not that such actions were ‘based on
a discriminatory criterion illegal under [Title VII].’” Furnco
Const. Corp. v. Waters, 

 (1978) (quoting
Teamsters v. United States, 

 (1977)). If an
employee establishes a prima facie PDA case, whether under
an adverse employment action theory or under Young, the
burden shifts to the employer to “seek to justify its refusal to
accommodate” by offering “‘legitimate, nondiscriminatory’
reasons for denying her accommodation.” Young, 576 U.S. at
229 (quoting McDonnell Douglas, 

); see also
Doe v. C.A.R.S. Prot. Plus, Inc., 

 (3d Cir.
2008).       If the employer does offer a legitimate,
nondiscriminatory reason, then the burden returns to the
employee to show that the employer’s reasons were
“pretextual.” Young, 576 U.S. at 229.




                                 9
        Peifer argues that she can establish a prima facie case as
to each of her two theories: (1) by a more traditional showing
that she suffered an “adverse employment action” because she
was pregnant; and (2) by showing that the Board failed to
accommodate her in the same way it accommodated non-
pregnant employees who had a similar inability to work as set
forth in Young. See id. We address each below.

              1.      Adverse Employment Action

       Under the more traditional version of the McDonnell
Douglas framework, an employee can make out a prima facie
case by showing, among other things, that she suffered an
“adverse employment action” because of a protected
characteristic. Jones v. Sch. Dist. of Phila., 

(3d Cir. 1999). Peifer argues that she “suffered two adverse
employment actions: denial of a reasonable accommodation
and constructive discharge” because of her pregnancy.
Opening Br. 25.

       We begin with Peifer’s argument that she was
constructively discharged when she resigned in September
2020, and conclude that Peifer cannot show that she was
constructively discharged. We evaluate claims of constructive
discharge under an “objective standard” that asks “whether a
reasonable person under the circumstances ‘would have felt
compelled to resign.’” Judge v. Shikellamy Sch. Dist., 

 (3d Cir. 2018) (quoting Colwell v. Rite Aid
Corp., 

 (3d Cir. 2010)). Peifer’s working
conditions—working light duty with the provision of PPE—do
not reach that level. Indeed, these accommodations were
provided in response to, and consistent with, Peifer’s doctor’s
opinions. Peifer offers no evidence that the conditions her
doctor endorsed were in fact so intolerable that they would




                               10
have forced a reasonable person to quit. We affirm the District
Court as to this asserted adverse employment action.

        Our analysis of Peifer’s argument based on the Board’s
denials of her accommodation requests is different, however.
The District Court decided that the Board’s denials did not
constitute adverse employment action, relying upon this
Circuit’s precedent and finding that Peifer did not allege facts
reflecting a “significant” employment-related harm. App. 11.
Specifically, the Court found lacking Peifer’s allegations that
she suffered forced leave and corresponding temporary loss of
pay and benefits, uncertainty, revocation of state-issued
equipment that flowed from it, a less flexible work schedule,
and an unsafe work environment during her modified-duty
assignment. The District Court concluded that although Peifer
raises “many grievances,” they “do not rise to the level of an
adverse employment action.” Id. at 13.

       However, while this appeal was pending, the Supreme
Court held in Muldrow v. City of St. Louis, 

(2024) that, contrary to our prior precedent, an employee need
not demonstrate that the asserted adverse employment action
was a “serious and tangible” employment-related harm. Komis
v. Sec’y of U.S. Dep’t of Lab., 

 (3d Cir.
2019) (quoting Jones v. Se. Pa. Transp. Auth., 

 (3d Cir. 2015)). In Muldrow, the Court rejected that the
harm must be “serious,” “significant,” “substantial,” or “any
similar adjective suggesting that the disadvantage to the
employee must exceed a heightened bar.” 144 S. Ct. at 974.
Rather, the Court explained that an adverse employment action
means simply that the employee suffered “some harm” to a
term or condition of employment—in other words, that the
employer treated the employee “worse” because of a protected




                              11
characteristic. Id.

       Because Muldrow made clear that adverse employment
action need not be serious, we will remand so that the District
Court can consider in the first instance whether Peifer has
asserted harms sufficient to establish “some” employment-
related harm for her prima facie case under Muldrow.4

              2.      Failure to Accommodate

       The Supreme Court set out the elements of a prima facie
failure to accommodate case in Young: The employee must
show that (1) “she belongs to the protected class,” (2) “she
sought accommodation,” (3) “the employer did not

4
        The District Court also decided that Peifer’s adverse
employment action theory failed because her evidence did “not
sufficiently satisfy the fourth prong … of establishing an
inference of unlawful discrimination.” App. 11. As this was
an alternative holding, the District Court did not provide as
thorough an explanation for its reasoning as it did for its
adverse employment action analysis. The District Court’s
reasons for its conclusion are therefore somewhat unclear. The
District Court appears, at least in part, to have relied upon its
conclusion that the Board accommodated Peifer. As explained
below, however, we have concluded that the Board did not
accommodate Peifer when it denied her light-duty requests.
Because the District Court’s reasons are not clearly
discernable, or are tied to other conclusions with which we
have disagreed or chosen to remand in light of Muldrow, we
also remand for the District Court to consider whether there is
a genuine dispute of material fact that an inference of unlawful
discrimination can be drawn.




                               12
accommodate her,” and (4) “the employer did accommodate
others ‘similar in their ability or inability to work.’” 

.

       Here, Peifer alleges that the Board failed to
accommodate her in two ways: by (1) denying her requests for
light duty beginning in March 2020 and (2) denying her request
to work from home in May 2020.

       Peifer cannot make out a prima facie case of
discrimination based on the Board’s denying her request to
work from home. Peifer requested the Board accommodate her
in one of two ways: working from home or providing her with
PPE. The Board chose the second option. Because the Board
provided her the accommodation she requested (though did not
prefer), Peifer cannot establish the third element of her prima
facie case, and the portion of her claim related to working from
home must fail. See 

 (employee must show that employer
“did not accommodate her”); cf. O’Neal v. City of Chicago,

 (7th Cir. 2004) (denial of an employee’s
“purely subjective preference” is not an adverse employment
action (citation omitted)).

       Peifer does make out a prima facie case, however, based
on the Board’s denial of her requests for light duty. The
District Court decided that Peifer’s claim failed on the third
and fourth elements because the Board “did accommodate
her,” and “there is no evidence [the Board] treated Ms. Peifer
differently than any others with similar limitations.” App. 12.
We disagree with both conclusions as they concern Peifer’s
light-duty requests.

       As to the third element, the Board repeatedly denied
Peifer’s light-duty requests between March and May 2020.




                               13
The Board argues that it “did ultimately accommodate
Peifer”—that is, when it granted her light duty two months
after she asked for it. Answering. Br. 29. The District Court
appears to have taken that same view. This is understandable
given that Peifer was ultimately given the light-duty
assignment she requested (though only after multiple initial
denials and months of delay). We note, however, that neither
the PDA nor Young’s interpretation of the PDA make an
exception for employers who grant an accommodation after
significant time has passed since their denial. We, therefore,
decline to read that exception into the PDA as doing so would
eviscerate the PDA’s purpose: Pregnancy is temporary, so if
employers could deny pregnant workers accommodation for a
period of months but escape liability by eventually relenting,
the statute would offer very little protection.5 The Board did
not accommodate Peifer for approximately two months; thus,
Peifer makes out the third element notwithstanding the fact that
the Board ultimately granted her request.

       As to the fourth element, the District Court said there
was “no evidence” that the Board treated Peifer differently than
employees with similar inability to work. App. 12. We
disagree. Evidence shows that the Board denied Peifer’s
requested accommodation as a matter of policy solely because
her inability was not caused by a work-related injury. See, e.g.,
Legg v. Ulster County, 

 (2d Cir. 2016); Equal
Emp. Opportunity Comm’n v. Wal-Mart Stores E., L.P., 46


5
        This reasoning might also apply when an employer
delays granting a request to the extent that such delay is
significant enough to establish that “the employer did not
accommodate her.” Young, 

.




                               

, 595 (7th Cir. 2022). Although the Board later
reversed itself and provided Peifer with light duty, Peifer has
offered evidence that it did so because of her disability, not
because of her pregnancy. This sequence of events, drawing
all reasonable inferences in favor of Peifer, can create a
genuine dispute that the Board denied Peifer light duty solely
“‘based on a discriminatory criterion illegal under’ Title VII”
and would have provided light duty to accommodate Peifer’s
inabilities so long as they were caused by work-related injuries
or possibly disability, rather than pregnancy. Young, 

 (quoting Furnco, 

); see also id. at 231.

       Because a reasonable jury could find that she made out
a prima facie case, the burden shifts to the Board to show that
it denied her light-duty requests for “legitimate,
nondiscriminatory” reasons. Id. at 229. If it does, then Peifer
must show that its reasons “are in fact pretextual.” Id. Because
the District Court decided that Peifer did not make out a prima
facie case, it did not analyze whether the Board’s proffered
reasons were legitimate and nondiscriminatory or whether
Peifer created a genuine dispute that the Board’s non-
discriminatory reason was pretextual. We will remand so it
can do so.

       B.     Retaliation Claim

        Peifer also claims retaliation under Title VII. Under
Title VII’s antiretaliation provision, an employer may not
“discriminate against” an employee “because,” among other
things, the employee “has opposed any … unlawful
employment practice” or “made a charge” with the EEOC. 42
U.S.C. § 2000e-3(a). To make out a prima facie case of
retaliation, therefore, a plaintiff must show that (1) “she
engaged in a protected activity,” (2) “she suffered an adverse




                              15
employment action,” and (3) “there was a causal connection
between the participation in the protected activity and the
adverse action.” Carvalho-Grevious v. Del. State Univ., 

 (3d Cir. 2017) (citing Moore v. City of
Philadelphia, 

, 340–41 (3d Cir. 2006)).

        Peifer does not show a causal connection between any
protected activity and an adverse employment action. Peifer
argues that she engaged in protected activity when she asked
for accommodations and filed EEOC charges and that she
suffered adverse employment actions when the Board denied
her requests and constructively discharged her. Peifer’s claim
fails because she does not show that her protected activity
caused the adverse actions she alleges (one of which,
constructive discharge, we have already concluded is without
merit). There is no evidence that the Board took any actions as
retaliation for her EEOC charge; to the contrary, the Board
changed its position and granted Peifer light duty soon after
she filed her first charge. Similarly, the fact that the Board
provided Peifer with an accommodation that she herself
requested does not support an inference that it was retaliating
against her. Thus, Peifer does not make out a prima facie case
of retaliation and we affirm as to this claim.

III.   CONCLUSION

       For the foregoing reasons, we will affirm in part and
vacate in part, and remand for proceedings consistent with this
opinion.




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