Sharon Mundy v. CITY OF PITTSBURGH On Appeal from the United States District Court for the Western…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 24-1685
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SHARON MUNDY,
Appellant
v.
CITY OF PITTSBURGH
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 22-cv-00031)
District Judge: Honorable Marilyn J. Horan
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 27, 2024
Before: SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges
(Opinion filed: December 5, 2024)
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OPINION*
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PER CURIAM
Pro se appellant Sharon Mundy appeals from the District Court’s grant of
summary judgment in favor of appellee, her former employer, the City of Pittsburgh (“the
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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City”). Because the District Court correctly granted summary judgment to the City, we
will affirm.
I.
Mundy was employed by the City as a laborer in the Department of Public Works,
from 2008 to 2020. (ECF 78 at ¶1-2.) In 2019 and 2020, Mundy relayed concerns to the
City’s Human Resources Department regarding smoking in the workplace. (ECF 78 at
¶3-6.) In 2020, Mundy was approved for intermittent FMLA leave for up to four days a
month. (ECF 78 at ¶7.) The City initiated its employment termination process against
Mundy after she exhausted her PTO and FLMA leave and failed to report further
absences1 to the City’s third-party FMLA coordinator. (ECF 78 at ¶8-12.) On July 10,
2020, Mundy submitted a doctor’s note requesting that she be excused until July 13, 2020
for asthma, which the City found was “well beyond [her] approved leave duration” under
the FMLA and was therefore “not acceptable.” (ECF 78 at 51.)
Mundy ultimately signed a Last Chance Agreement to maintain her employment,
which required her abstaining from “mood-altering drugs or chemical substance[s].”
(ECF 78 at ¶15-24.) Shortly after, Mundy tested positive for marijuana and was
terminated after the City determined she provided an unsatisfactory response to the
positive test. (ECF 78 at ¶25-35.)
In October 2022, Mundy filed her second amended complaint against the City
alleging claims of disability discrimination, failure to accommodate, and retaliation
1 Mundy was absent June 24, 2020 through July 9, 2020 without explanation. (ECF 78
at ¶8-12.)

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pursuant to the Americans with Disabilities Act (ADA) and the Rehabilitation Act of
1973.2 (ECF 36.) On January 3, 2024, after the close of discovery, the City filed for
summary judgment. (ECF 76-78.) On her deadline to respond to the City’s motion for
summary judgment, January 31, 2024, Mundy instead filed a motion to extend discovery.
(ECF 79.) The District Court denied Mundy’s motion and sua sponte granted her until
February 8, 2024, to respond to the City’s motion for summary judgment. (ECF 83.)
On February 8, 2024, Mundy instead filed a document labeled “motion for
clarification,” stating that she was not seeking additional discovery, but was instead
seeking to have the City comply with earlier discovery requests. (ECF 84.) The District
Court denied Mundy’s motion, noting she had not raised any issues of noncompliance
before the close of discovery. (ECF 85.) Mundy filed a motion for reconsideration of
these denials on March 21, 2024. (ECF 86.) On March 22, 2024, the District Court
granted the City summary judgment as to Mundy’s claims. (ECF 87-88.) On March 25,
the District Court denied Mundy’s motion for reconsideration, reentered summary
judgment, and closed the case. (ECF 89). This timely appeal followed.3 (ECF 90.)
2 Mundy additionally alleged violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 1981, and 42 U.S.C § 1983. When the City filed a motion to dismiss, the
District Court dismissed those additional claims. (ECF 88.) On appeal, Mundy forfeited
any argument as to their dismissal because she failed to raise them in her brief. See
Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017).
3 As Mundy’s April 11, 2024 notice of appeal is timely as to both the District Court’s
order granting the City summary judgment and its order denying Mundy’s motion for
reconsideration, and because the order denying the motion for reconsideration reentered
summary judgment for the City, we construe Mundy’s appeal as challenging both orders.

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II.
We exercise de novo review over a District Court’s grant of summary judgment.
See Wharton v. Danberg, 854 F.3d 234, 241 (3d Cir. 2017). Summary judgment is
proper when the record “shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
dispute of material fact exists if the evidence is sufficient for a reasonable factfinder to
return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The non-moving party “must show where in the record there exists a
genuine dispute over a material fact.” Doe v. Abington Friends Sch., 480 F.3d 252, 256
(3d Cir. 2007). We review the District Court’s denial of Mundy’s motion for
reconsideration and its discovery rulings for abuse of discretion. Max's Seafood Café ex
rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999); Gallas v. Sup. Ct. of
Pa., 211 F.3d 760, 778 (3d Cir. 2000).
III.
On appeal Mundy asserts the District Court abused its discretion in denying her
motions to extend discovery and her motion for reconsideration of those denials because
it deprived the parties of additional time to resolve the issues through settlement. (CA 13
at 7, 10.) Mundy further asserts the District Court abused its discretion because the City
had not opposed a motion extending her time to respond to its summary judgment
motion. (CA 13 at 9). Finally, Mundy asserts the District Court erred because her three
remaining counts had passed the City’s motion to dismiss, and the City had failed to
properly respond to her discovery requests. (CA 13 at 11-12.)

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“[M]atters of docket control and conduct of discovery are committed to the sound
discretion of the district court.” In re Fine Paper Antitrust Litig., 685 F.2d 810, 817 (3d
Cir. 1982). We will not disturb “a trial court’s control of its docket except upon the
clearest showing that the procedures have resulted in actual and substantial prejudice to
the complaining litigant.” Id. (cleaned up). For discovery rulings, an appellant must
“show that the district court's denial of discovery made it impossible to obtain crucial
evidence, and implicit in such a showing is proof that more diligent discovery was
impossible.” Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 107 F.3d 1026, 1032
(3d Cir. 1997) (cleaned up).
Having considered Mundy’s arguments, we find no abuse of discretion in the
District Court’s discovery rulings. Mundy has not shown that more diligent discovery
was impossible, principally because she failed to raise any issues of noncompliance until
after the close of discovery. (ECF 84-85.) Further, although the City would not have
opposed it, (ECF 86 at 7) Mundy never filed a motion to request additional time to
respond to its summary judgment motion, so it was never before the District Court.
Finally, a District Court does not abuse its discretion by not sua sponte providing
additional time to respond to a summary judgment motion.4
4 This is particularly so when the record demonstrates the District Court sua sponte
granted Mundy an additional week, and Mundy repeatedly disregarded procedural
deadlines, failed to file a motion for extended time, and ultimately failed to submit any
response to the City’s summary judgment motion, timely or not. (See ECF 89 at 2-3.)

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IV.
The District Court properly granted summary judgment to the City on all three of
Mundy’s claims under the ADA and the Rehabilitation Act. Mundy asserts the District
Court erred by considering only the City’s evidence when granting the summary
judgment motion. We find the District Court did not err because Mundy never filed
contrary evidence. Further, even absent contrary evidence, the District Court properly
considered whether the record demonstrated any genuine issues of material fact and the
City was entitled to judgment as a matter of law. See United States v. Brace, 1 F.4th 137,
143 (3d Cir. 2021); Fed. R. Civ. P. 56(a).
A.
We agree with the District Court that there is no genuine issue of material fact
concerning Mundy’s asthma-related ADA and Rehabilitation Act disability
discrimination claims. At summary judgment, a plaintiff bears the burden of making a
prima facie showing of disability discrimination. Wishkin v. Potter, 476 F.3d 180, 185
(3d Cir. 2007). That is, she must provide evidence “that [she] was disabled, was
qualified for the job, and suffered discrimination because of [her] disability.” Gibbs v.
City of Pittsburgh, 989 F.3d 226, 229 (3d Cir. 2021). If a plaintiff makes a prima facie
showing of discrimination and the employer provides evidence of non-discriminatory
reasons for the adverse action, the plaintiff has the burden to provide evidence that the
employer’s reasons were pretextual. See Wishkin, 476 F.3d at 185. We agree Mundy
offered no evidence that she was suspended, terminated, or suffered discrimination
because of having asthma. (See ECF 78 at 47, 51-52, 56-60.) We further agree that, even if

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Mundy had made out a prima facie case of disability discrimination, Mundy offered no
countervailing evidence to the City’s evidence of non-discriminatory reasons for her
suspension and termination. (See ECF 78 at 42-45, 47, 51-52, 56-60.)
B.
We likewise agree with the District Court that there is no genuine issue of material
fact concerning Mundy’s asthma-related ADA and Rehabilitation Act failure to
accommodate claims. To support a prima facie failure to accommodate claim under the
ADA, a plaintiff must provide evidence that “(1) [s]he was disabled and [her] employer
knew it; (2) [s]he requested an accommodation or assistance; (3) [her] employer did not
make a good faith effort to assist; and (4) [s]he could have been reasonably
accommodated.” Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 246 (3d Cir.
2006). We agree that Mundy offered no evidence that the City knew of Mundy’s asthma
before her initial suspension or that Mundy ever requested an accommodation in writing
from Human Resources relating the worsening of her asthma to smoking in the
workplace.5 (See ECF 78 at 38, 48-50, 54) To the extent that evidence of Mundy’s
approved intermittent FMLA leave functioned as a reasonable accommodation request,
the City made a good faith effort to assist by approving her FMLA leave. See Capps v.
Mondelez Global, LLC, 847 F.3d 144, 156-57 (3d Cir. 2017).
5 We note the City’s proffered evidence shows Mundy made complaints regarding
smoking, but the documents indicate Mundy made complaints because of the City’s
ordinance prohibiting smoking in the workplace. (See ECF 78 at 22-24, 38, 48-50, 54.)
Mundy offered no evidence the City understood Mundy to be making an ADA
accommodation request through those complaints. (See ECF 78 at 22-24, 48-50, 54.)

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C.
Finally, we agree with the District Court that there is no genuine issue of material
fact concerning Mundy’s retaliation claim under the ADA. At summary judgment, a
plaintiff must provide evidence of “(1) protected employee activity; (2) adverse action by
the employer either after or contemporaneous with the employee's protected activity; and
(3) a causal connection between the employee's protected activity and the employer's
adverse action.” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). We
agree that Mundy offered no evidence of “a causal connection” between any
accommodation request she may have made and the adverse action of her employment
suspension and eventual termination. We further agree that, even if Mundy had made out
a prima facie case of retaliation, Mundy again offered no countervailing evidence to the
City’s evidence of non-discriminatory reasons for her suspension and termination. (See
ECF 78 at 42-45, 47, 51-52, 56-60.)
IV.
Since the record does not support a prima facie claim on Mundy’s disability
discrimination, failure to accommodate, or retaliation claims under the ADA and
Rehabilitation Act, we will affirm the District Court’s grant of summary judgment as to
all claims.

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