issue of fact as to whether she is currently disabled. There is no evidence that she was substantially limited in walking; only that she walks and climbs stairs slowly. We find that her case is very similar to Kelly, 907 F. Supp. at 874, where our Court found that plaintiff was not substantially limited in the major life activity of walking even though plaintiff's ability to walk was limited in some ways.
In the alternative, Plaintiff contends that Defendant perceived her as disabled. It is undisputed that many of Defendant's management knew about Plaintiff's accident and injury and also that her impairment was apparent to any observer. In addition, Plaintiff points to Defendant's Human Resources director's testimony that he suggested the Quality Assurance job to Plaintiff because he thought it would be easier on her leg. Plaintiff maintains that she has demonstrated that Defendant perceived her as being disabled because anyone could tell that she was impaired and because one person in management made business decisions based on her impairment.
We agree that this evidence could show that Defendant believed Plaintiff had an impairment. We disagree, however, that the evidence creates a genuine issue of fact as to whether Defendant perceived Plaintiff's impairment as a substantial limitation on any major life activity. In fact, it tends to show that Defendant did not perceive Plaintiff as substantially limited in the activities of walking or working because it encouraged her to work in a position that required walking. Taking Plaintiff's evidence as true, therefore, there is no evidence that could support a reasonable jury's verdict that Plaintiff was perceived to be substantially limited in any major life activity. For these reasons, summary judgment is appropriately granted on Plaintiff's ADA claim.
II. AGE DISCRIMINATION IN EMPLOYMENT ACT
Plaintiff alleges that Defendants violated the ADEA by firing her on account of her age. The ADEA is intended to "promote employment of older persons" and prohibits firing people on account of their age. 29 U.S.C. §§ 621, 623. To state a prima facie case under the ADEA, a plaintiff must show that age was a determinative, but not necessarily sole, factor in the decision to discharge. Billet v. Cigna Corp., 940 F.2d 812, 816 (3d Cir. 1991). This can be done circumstantially by showing that the plaintiff (1) is within a protected class, (2) was qualified for the position, (3) was dismissed despite those qualifications and (4) was replaced by someone sufficiently younger to permit an inference of age discrimination. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).
Here, Plaintiff insists that she has made out a prima facie case because she (1) was 51 years old when she was terminated, (2) was qualified for either a clerical position or another position with reasonable accommodation, (3) was terminated despite those qualifications and (4) was replaced by someone younger than her.
Defendant takes issue with Plaintiff's contentions that she was qualified and that she was replaced with a younger worker. We first look to whether Plaintiff has created an issue of fact as to whether she was replaced with a younger worker. Plaintiff's argument is basically that she, a 51 year old employee, was discharged, whereas Mihalko, a young employee, was retained.
Plaintiff concedes that Mihalko started in Quality Assurance at the same time she did, and that no one was specifically hired to replace her.
Our understanding of her argument is that, in fact, there was only one Quality Assurance position available when she and Mihalko were hired. Because Mihalko had worked on the factory floor, he adapted to his Quality Assurance job faster than she did and that therefore, Defendant retained Mihalko and discharged Plaintiff.
Although Plaintiff's brief on this point is murky, as we understand it, she contends that the fact that no one was hired to replace her proves that there was never a position for her. Rather, her hiring and then poor reviews may have been a subterfuge to allow Defendant to terminate Plaintiff and be able to truthfully say that no person "replaced" her, because the true occupant of the only available Quality Assurance position was already in place. If this is, in fact, Plaintiff's theory, it fails. She proffers absolutely no evidence that could support any aspect of this nefarious plot.
That being said, we turn now to the evidence Plaintiff has proffered to determine whether it creates an issue of fact as to whether she was replaced by a younger worker. First, Plaintiff averred in her affidavit that her "Quality Assurance Job was given to Ronald Mihalko, a young male in his 20's, who was a new hire with no seniority, and whose only experience with the company was as a "Summer Temporary Help." Pl.'s Aff. P 57. This averment, however, is contradicted by Plaintiff's own deposition wherein she was questioned about this averment. In her deposition, Plaintiff conceded that Mihalko did not "replace" her, but was assigned to Quality Assurance and trained at the same time she was. Without sufficient explanation, a non-movant cannot create a genuine issue of fact via an affidavit that contradicts the party's own deposition testimony. Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) (quoting Martin v. Merrell Dow Pharms., Inc., 851 F.2d 703, 706 (3d Cir. 1988)).
The only other evidence Plaintiff could base her age claim on is what a co-worker told her he overheard one manager tell another, namely, that management wanted Plaintiff out of the lab. Pl.'s Dep. at 170. Plaintiff conceded though, that she did not know whether management did not want her because of her age or for some other reason. Id. at 171.
Given the lack of any evidence to support a finding that Defendant replaced Plaintiff with a younger worker, we cannot find that Plaintiff has made out a prima facie case under the ADEA. For that reason, we grant summary judgment on Plaintiff's ADEA claim.
An appropriate Order follows.
AND NOW, this 24th day of July, 1996, upon consideration of Defendant The Stroh Brewing Company's Motion for Summary Judgment and response thereto and in accordance with the attached Memorandum, the Motion is hereby GRANTED and Summary Judgment is hereby ENTERED in favor of Defendant The Stroh Brewing Company and against Plaintiff Madeline A. Penchishen on all counts.
BY THE COURT:
J. Curtis Joyner, J.