Carolyn Gardner v. Kutztown University

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 25-1295
_____________
CAROLYN GARDNER
v.
KUTZTOWN UNIVERSITY; DR. KENNETH S. HAWKINSON, President of
Kutztown University, in his individual capacity; JESUS PENA, Vice-President
for Kutztown University Division of Equity, Compliance and Legal Affairs,
in his individual capacity; JENNIFER WEIDMAN, Kutztown University
Director of Human Resources, in her individual capacity,
Appellants
_____________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 5:22-cv-01034)
District Judge: Honorable Jeffrey L. Schmehl
________________
Argued on February 4, 2026
Before: HARDIMAN, MONTGOMERY-REEVES and ROTH, Circuit Judges
(Opinion filed: August 18, 2026)
Hannah Kogan (ARGUED)
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Counsel for Appellants

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Ralph E. Lamar, IV
6616 Ruppsville Road
Allentown, PA 18106
Lorrie McKinley (ARGUED)
McKinley & Ryan
238 W Miner Street
West Chester, PA 19382
Counsel for Appellee
________________
OPINION*
________________
ROTH, Circuit Judge
Appellant Carolyn Gardner sued Kutztown University (KU), alleging various
theories of disability discrimination under § 504 of the Rehabilitation Act (RA) based on
KU’s rejection of her requests to teach classes remotely for the Fall 2021, Spring 2022,
Fall 2022, and Spring 2023 semesters. The District Court granted summary judgment to
Gardner on nearly all her claims. For the reasons below, we vacate the District Court’s
Order entering summary judgment for Gardner on Counts I-IV and reverse as to Counts V
and VI. However, we affirm the District Court’s partial determination in Count I that KU
did not fail to accommodate Gardner’s disability for the Spring 2023 semester.
I.1
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1 Because we write for the parties, we recite only those facts necessary to our disposition.

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In Spring 2020, during the height of the global COVID-19 pandemic, KU
implemented procedures allowing faculty to teach and conduct office-hours remotely in
compliance with the Pennsylvania Governor’s declared state of emergency.2 The
Governor’s mandate also entitled high-risk faculty to continue remote work for the
remainder of the 2020-2021 academic year. Having received a diagnosis of an incurable
autoimmune condition in December 2020, Gardner worked remotely until March 2021,
when she took leave under the Family and Medical Leave Act for the remainder of the
semester to adjust to her immunosuppressive medication.
In preparation for the Fall 2021 semester, KU planned to reopen campus and
return to pre-COVID configurations—including requiring in-person course instruction—
as explained in its semester guidelines. In addition, KU’s administration concluded that
converting in-person classes to an online format was not considered a reasonable
accommodation. However, KU’s governing written policy, Policy DIV-002, requires that
formal accommodation requests for documented disabilities be evaluated individually,
submitted to the Director of Disability Services, and sent to the HR Director, who
determines whether the requested accommodation is reasonable.
As she had before the pandemic, Gardner was scheduled to teach at least one
course online. She also requested permission to teach her scheduled in-person courses
remotely for four semesters (Fall 2021, Spring 2022, Fall 2022, Spring 2023). KU either
denied the requests or provided no response, relying on its newly implemented policy that
2 This included installing new technology to allow for synchronous instruction “for Fall
2020 and beyond.” Joint Appendix (JA) 18.

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any requests to move in-person classes to remote modalities would be considered a
“fundamental alteration”3 to course modalities and student preferences and thus would be
denied. However, KU twice offered Gardner alternative accommodations: for Spring
2022, she could teach behind a plexiglass podium wearing a plexiglass face shield; and
for Spring 2023, in addition to the plexiglass options, KU would reconstruct her
classroom to provide enhanced air filtering and promote social distancing. Gardner
rejected both offers.
II.4
In March 2022, after the second accommodations denial, Gardner sued KU and
certain individual administrators for disability discrimination. She moved for partial
summary judgment on her claims for KU’s failure to accommodate (Count I), use of
facially illegal discriminatory policies (Count II), intentional discrimination (Count III),
disparate impact based on prohibited criteria and methods of administration (Count V),
and interference (Count VI).5 KU and the individual defendants opposed Gardner’s
partial motion and cross-moved for summary judgment on all claims. The District Court
granted Gardner’s partial motion, entered summary judgment in Gardner’s favor on
3 JA 31.
4 The District Court had jurisdiction under 18 U.S.C. § 1331. We have appellate
jurisdiction under 28 U.S.C. § 1291.
5 Gardner also brought a separate claim for retaliation under Count VI. The District
Court entered summary judgment in KU’s favor on this portion of Count VI, and KU
declined to challenge this determination on appeal.

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Count IV sua sponte,6 and denied KU’s cross-motion except as to the portion of Count I
concerning KU’s reasonable accommodation of Gardner for Spring 2023.
We exercise plenary review of summary judgment decisions, construing evidence
in favor of the non-moving party.7 Summary judgment is appropriate where “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”8 If cross-motions reveal no genuine issue of material fact, “we will order
judgment to be entered in favor of the party deserving judgment in light of the law and
undisputed facts.”9
III.
This case presents novel questions concerning the proper legal standards for
analyzing employment and disability discrimination claims under the RA, but we need
not resolve them today. Instead, we will allow this case to proceed to trial because a
material dispute of fact exists as to the central issues on appeal.
A.
6 The District Court also granted summary judgment for the named individual defendants
on Gardner’s claims, brought pursuant to 42 U.S.C. § 1983, that the individuals violated
her rights under the RA. We do not address Gardner’s cross-appeal of that decision
because the law is clear that individuals cannot be held liable under the RA, and no cause
of action under § 1983 exists addressing RA violations where, as here, the § 1983 claim
is based on the same facts as the RA claims. See A.W. v. Jersey City Pub. Schools, 486
F.3d 791, 805 (3d Cir. 2007) (“There is nothing in Section 504 that . . . causes us to
conclude that Congress intended to allow §1983 to be available to remedy Section 504
violations such as those alleged by [plaintiff].”).
7 Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998).
8 Fed. R. Civ. P. 56(a).
9 Iberia, 150 F.3d at 302.

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We start with Gardner’s claims that by denying her remote-work requests, KU
intentionally discriminated against her based on her disability. She brings two separate
claims based on two theories of liability: (1) direct evidence of intentional discrimination
(Count III) and (2) circumstantial evidence of intentional discrimination through pretext
(Count IV). Under the RA, to establish a prima facie claim for intentional discrimination
under either theory, Gardner must show that: (1) she is disabled; (2) she is “qualified” to
perform the “essential functions” of her job with or without reasonable accommodations;
and (3) she was “nonetheless . . . otherwise prevented from performing [her] job.”10 An
employee is “qualified” for the purposes of the RA when she “satisf[ies] the prerequisites
for the position, such as possessing the appropriate educational background, employment
experience, skills, licenses, etc.” and she is “able to perform the essential functions of the
position . . . with or without reasonable accommodations.”11
Here, the parties dispute whether teaching students and holding office hours in-
person are “essential functions” of Gardner’s role as an Associate Professor and whether
10 Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996).
11 Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir. 1999) (quoting Gaul v.
Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998)). Neither party disputes that
Gardner is disabled, nor do they dispute that she possesses the educational background
and experience necessary for her role as an Associate Professor.

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Gardner’s full-time remote work request is a “reasonable accommodation.”12 But both
Counts III and IV depend on the answers to these questions, which can only be
determined upon weighing evidence—a task which both we and the District Court are
plainly prohibited from undertaking at summary judgment.13 Thus, while “[w]e do not
suggest that the District Court here had no basis for its conclusion that [physical
presence] is [not] an essential function of [Gardner’s] position . . . or even that, if we
were the triers of fact, we would not so hold,”14 we do conclude that the District Court
erred in deciding that question as a matter of law. We will therefore vacate its order
entering summary judgment on both Counts III and IV.15
B.
12 KU’s supporting evidence includes that it has never hired a full-time faculty member to
teach exclusively online; with the exception of COVID, Gardner never taught more than
one class online in a single semester; and distance learning accounts for only 6% of KU’s
course offerings pre-COVID and 13% post-COVID. Gardner counters that the applicable
Collective Bargaining Agreement evaluates faculty performance based on “effective
teaching, scholarship, and service” without any requirement of effectuating those duties
in-person (JA 13, JA 32); KU admittedly has “no policy, contractual definition, or pre-
existing job description” stating that teaching in-person is essential to the job (JA 21);
and Gardner taught classes remotely for over a decade and completed KU’s advanced
online certification program in 2013.
13 Indeed, even in a disability case where the record almost unequivocally answered
whether the function at-issue was “essential” at the summary judgment stage, we
remanded for a jury’s determination. See Skerski v. Time Warner Cable Co., a Div. of
Time Warner Ent. Co., L.P., 257 F.3d 273, 280, 283 (3d Cir. 2001) (cleaned up); see also
Turner v. Hershey Chocolate U.S., 440 F.3d 604, 614 (3d Cir. 2006) (noting that the
essential function determination is a factual issue that “must be decided by a jury”).
14 Skerski, 257 F.3d at 283.
15 KU also challenges the District Court’s grant of summary judgment in Gardner’s favor
on her Count II claim for Discrimination Pursuant to a Blanket Policy. KU’s arguments
mirror those in Counts III and IV. We therefore vacate the District Court’s grant of
summary judgment on Count II for the reasons explained above.

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Next, KU challenges the District Court’s grant of summary judgment to Gardner
for her Count I claim that KU failed to accommodate her disability for Fall 2021, Spring
2022, and Fall 2022. KU argues that the record proves it engaged in good faith in the
interactive process to consider Gardner’s requested accommodations. KU is not correct.
The record reveals a dispute of material fact regarding whether KU sufficiently
engaged in the interactive accommodations process. To establish an employer’s failure
to accommodate, Gardner must show: “(1) [s]he was disabled and h[er] employer knew
it; (2) [s]he requested an accommodation or assistance; (3) h[er] employer did not make a
good faith effort to assist; and (4) [s]he could have been reasonably accommodated.”16
An accommodation is reasonable where it enables an individual with a disability who is
qualified to “perform the essential functions of that position; or . . . to enjoy equal
benefits and privileges of employment.”17 Because the reasonableness determination
hinges on weighing the same competing facts that foreclose summary judgment on
Gardner’s intentional discrimination claims, we leave this claim to a jury as well.
However, concerning the Spring 2023 semester—when KU offered to construct a
classroom with limited student capacity, a separate entrance, specialized air filters, and a
plexiglass podium compliant with the Americans Disabilities Act (ADA)—we agree with
the District Court’s decision to grant summary judgment in KU’s favor. We find that no
reasonable juror could conclude that KU’s proposed accommodation was not a
16 Capps v. Mondelez Glob., LLC, 847 F.3d 144, 157 (3d Cir. 2017) (quoting Armstrong
v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246 (3d Cir. 2006)).
17 29 C.F.R. § 1630.2(o)(1)(ii)-(iii).

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reasonable means to accommodate Gardner’s need to minimize her risk of illness
exposure. Indeed, an employer’s obligation is only to provide an accommodation that is
reasonable in and of itself—not the accommodation that “is the most reasonable or the
employee’s prefer[ence].”18 Accordingly, we will affirm the District Court’s decision as
to Spring 2023 and vacate the District Court’s grant of summary judgment as to Fall
2021, Spring 2022, and Fall 2022.
C.
On Gardner’s claim in Count V—that KU’s unofficial policy requiring full in-
person teaching and office hours disparately impacts her as a disabled individual—the
parties dispute whether Gardner must provide comparative evidence to show the policy’s
disproportionate effect, and if so, whether she has met her burden of production.19
Simply put: yes, she must provide comparative evidence, but no, she did not meet her
burden to do so.
18 United States v. Bd. of Educ. for Sch. Dist. of Philadelphia, 911 F.2d 882, 886 (3d Cir.
1990) (emphasis added) (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69
(1986)); see also Hankins v. The Gap, Inc., 84 F.3d 797, 800–01 (6th Cir. 1996) (“[A]n
employee cannot make his employer provide a specific accommodation if another
reasonable accommodation is instead provided.”).
19 KU asserts that similar to Title VII claims, Gardner must demonstrate a disparate
impact on a class of statutorily protected individuals, generally through statistics or
equivalent empirical evidence. See 42 U.S.C. § 2000e-2(k)(1)(A)(i); Newark Branch,
N.A.A.C.P. v. Town of Harrison, N.J., 940 F.2d 792, 798 (3d Cir. 1991). Gardner
counters that she may simply establish that she alone was “screened out” in violation of
the ADA’s prohibition of employers’ use of qualification standards, tests, or other criteria
that “screen out or tend to screen out an individual with a disability or a class of
individuals with disabilities.” 42 U.S.C. § 12112(b)(6).

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Though we have not directly established the requirements for showing disparate
impact under the RA in the employment discrimination context, this case does not require
us to do so. Gardner has offered no legitimate or measurable evidence that would allow
us—let alone the District Court—to determine as a matter of law that KU’s “no remote-
work” policy disproportionally impacted disabled employees.20 Nor could she adduce
such evidence at this stage. Thus, we will reverse the District Court’s decision granting
summary judgment to Gardner and denying KU’s cross-motion for summary judgment as
to Count V.
D.
Finally, KU contends the District Court improperly entered summary judgment for
Gardner on her Count VI claim that KU interfered with her ability to enjoy her protected
rights under the ADA by denying her remote-work accommodation requests.21 KU takes
issue with the District Court’s recognition of interference claims under the RA as well as
the District Court’s adoption of the Fair Housing Act’s standard for analyzing
interference claims.
While we have yet to definitively address whether cognizable interference claims
extend to the RA, assuming without deciding that they do, we agree that the District
20 See NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1334–35 (3d Cir. 1981) (rejecting
plaintiff’s RA claim that the defendant medical center’s planned relocation would
disparately impact disabled individuals because the plaintiff produced no credible
evidence indicating any disproportionate adverse effect).
21 Section 12203(b) of the ADA prohibits an employer from coercing, intimidating,
threatening, or interfering with any individual in the exercise or enjoyment of any right
protected by the statute. 42 U.S.C. § 12203(b).

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Court’s summary judgment decision warrants reversal. But first, we recognize that the
“novel and complex question[]”22 of how to analyze these claims required the District
Court to land between a rock and a hard place. In this case, the court reasonably selected
a legal framework that we have endorsed for analyzing the same cause of action under
the Fair Housing Act,23 in which we use the dictionary’s definition of “interference,”
which is “the act of meddling in or hampering an activity or process.”24
Under this framework, we disagree with the District Court’s conclusion that KU
“clearly meddled” with Gardner’s ability to receive an accommodation for Fall 2021.25
No evidence supports Gardner’s contention that as of Fall 2021, KU’s blanket decision to
deny all employees’ remote-teaching requests constituted “meddling” with Gardner’s
statutory ability to seek a reasonable accommodation. Again, while the law entitles
Gardner to generally request accommodations, as she did, an open question exists
regarding whether the law required KU to fulfil Gardner’s specific requested
accommodation.26 We therefore reverse the District Court’s entry of summary judgment
on Count VI.
III.
22 Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 686–87 (3d Cir. 2016)
(acknowledging that the district court faced a “conundrum” when summary judgment
proceedings required it to decide an unprecedented issue involving federal aviation law’s
preemption of state law).
23 See Revock v. Cowpet Bay W. Condo. Ass’n., 853 F.3d 96, 112–13 (3d Cir. 2017)
(citing 42 U.S.C. § 3617).
24 Id.
25 JA 70.
26 See supra Part III.B.

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For the foregoing reasons, we affirm the District Court’s grant of summary
judgment to KU only as to the Spring 2023 semester in Count I, vacate the judgment as to
the remainder of Counts I and the entirety of Counts II, III, and IV, reverse as to Counts
V and VI, and remand for further proceedings consistent with this opinion.

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