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Oross v. Kutztown University

Civil Action 21-5032
Eastern District Court of Pennsylvania
July 25, 2023

Keywords: retaliation, intentional discrimination, interference, Rehabilitation Act, per se violation, Pennsylvania, covered employer, professor, COVID-19, remote work.

Summary and Facts of the Case

Professor Oross is a person with a disability that affects his immune system. Due to his disability he needs life-long medications. Professor Oross was at a high risk of getting COVID-19. He asked that he teach his classes for the Fall Semester of 2021 from home. The health requirements for the University regarding COVID-19 were constantly changing. In 2020, all classes at Kutztown University were taught online.

In 2021, Kutztown University denied Professor Oross’ request to work remotely. Rather than return to work, he chose to use his medical leave and take unpaid time off.

Professor Oross sued Kutztown University and several staff members in federal court. He claimed that Kutztown violated Section 504 of the Rehabilitation Act (29 U.S.C. § 794) by denying his request for a remote work accommodation for the Fall Semester of 2021. He also claimed that Kutztown retaliated against him when he publicly disagreed with the decision. Professor Oross asked for reinstatement to full-time status with a remote work accommodation so that he would not lose his benefits. Professor Oross also claimed interference by the University. Section 12203(b) of the Rehabilitation Act states that “it shall be unlawful to…interfere with any individual in the exercise or enjoyment of, 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”. Professor Oross and Kutztown University both filed motions for summary judgment. A summary judgment is a judgment entered by a court for one party and against another party without a full trial.

Issue of the Case

  1. Does Professor Oross have federal claims, including discrimination, by his employer Kutztown University under the Rehabilitation Act?

Arguments & Analysis

1. Does Professor Oross have viable federal claims against Kutztown?

The Court decided Professor Oross did have a federal claim against Kutztown University. They also found there are no factual issues for the jury to resolve so the Court can make a decision as a matter of law.

Section 504 of the Rehabilitation Act says that no person with a qualifying disability can be kept from the “participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance solely by reason of his/her disability”. Courts have said in the past that there is no individual liability under the Rehabilitation Act since those individuals are not the recipients of federal funds.

To show intentional discrimination, Professor Oross had to show from the start that he was discriminated against. If he did this, then the burden shifted to the employer to show a real and nondiscriminatory reason for the employment action. If the employer met the burden, then Professor Oross had to show that the Kutztown University’s explanation was pre-textual. This means the University. tried to hide the true reasons for taking an employment action against Professor Oross.

Prima facie case of discrimination

To establish a prima facie case of discrimination under Section 504 of the Rehabilitation Act Professor Oross must first show: (1) that he has a disability; (2) that he is qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he was terminated or otherwise prevented from performing this job.

There was no argument on the first part as to whether Professor Oross had a disability.

Kutztown University tried to argue that an essential element of Professor Oross’ job was to teach and conduct office hours in person.

However, the Court ruled that teaching in-person and conducting in-person office hours are not essential functions of the job. The Court also ruled that Professor Oross could fully perform the essential functions of his job by teaching remotely satisfying the second element.

Professor Oross met the third element by showing he was denied a reasonable accommodation of remote teaching and office hours which forced him to use up the remainder of his paid leave and his unpaid leave. He was also denied the use of a health sabbatical or extended leave for health reasons. He was told that a full-time/full duty release meant he had to work in-person which caused him to give up his medical benefits and limited his return-to-work rights.

The Court noted that Kutztown University claimed that allowing Professor Oross to teach his four classes remotely because it would be a fundamental alteration of the University’s course offerings to students.

The Court ruled that the legitimate non-discriminatory reason was pre-textual because they did not individually evaluate Professor Oross’ situation and instead chose to deny all requests for accommodations.

Discrimination based on a failure to accommodate

When an employer discriminates against a qualified individual with a disability when they do not make reasonable accommodations to the known limitations of the individual, discrimination based on a failure to accommodate takes place — unless the employer can demonstrate that the accommodation would be an undue hardship on the operation of the business. An employer does not have to provide the employee with the exact accommodation they want so long as the accommodation they choose is effective. All that is required is that employers make a good-faith effort to seek accommodations.

The employee must produce evidence 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.

The Court found that Professor Oross satisfied all elements for discrimination based on a failure to accommodate.

Disparate Impact

A disparate impact violation occurs when the employee can show that their employer used a specific employment practice, neutral on its face but results in substantial harm to a protected group, that cannot be explained as a legitimate business goal. To establish a prima facie case of disparate impact discrimination the employee must: (1) identify the specific employment practice that is challenged; and (2) the plaintiff must show cause by offering evidence of the number of people who were ruled out jobs or promotions because they are in a protected group.

In this case, Professor Oross could not give any statistical evidence, other than for himself, and so he did not meet the second requirement for showing disparate impact discrimination.


To establish a prima facie case of retaliation a plaintiff must show: (1) protected employee activity; (2) adverse action by the employer either during or after the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.

To establish a required causal connection a plaintiff must usually prove either: (1) relationship between the protected activity and the allegedly retaliatory action; or (2) a pattern of hostility coupled with timing to establish a causal link. This claim again involves the burden shifting paradigm.

In this case, Oross failed to satisfy the second element for retaliation.


The District Court ruled that Professor Oross is entitled judgment on his claims for intentional discrimination.

The District Court ruled that Professor Oross is also entitled judgment on his claim for discrimination based on a failure to accommodate.

The District Court ruled that Professor Oross was entitled judgment on his claim that the University’s policy requiring him to return to work with no restrictions was a violation of the Rehabilitation Act.

The District Court ruled that Professor Oross was not entitled judgment on his claim for disparate impact discrimination because he failed the second prong of the test, that shows that the practice in question caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.

The District Court ruled that Oross was not entitled judgment on his claim for retaliation.

The District Court also found Oross was entitled to judgment on his interference claim. The court ruled that the University clearly interfered with Professor Oross’ request for a reasonable accommodation of remote teaching by putting in place a strict policy preventing remote teaching in Fall 2021. The court also said the University interfered with the Professor’s career when it defined “full-time, full-duty” release as requiring all teaching and office hours to be in-person even though the requirement was never defined nor applied before.

The District Court found that Oross was not successful in his claims against Dr. Hawkinson (University President) or Mr. Pena (Vice President for Equity, Compliance, and Liaison for Legal Affairs).


Full Case: Oross v. Kutztown University, Civil Action 21-5032 (E.D. Pa. Jul. 25, 2023)

These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time.  In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.