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Kelly v. Drexel University

August 23, 1996

FRANCIS J. KELLY,

APPELLANT

v.

DREXEL UNIVERSITY



On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Civ. No. 94-05336)

BEFORE: GREENBERG and ALITO, Circuit Judges, and FISHER, District Judge *fn*

GREENBERG, Circuit Judge.

Submitted under Third Circuit LAR 34.1(a)

August 12, 1996

(Filed: August 23, l996)

OPINION OF THE COURT

I. INTRODUCTION

Appellant Francis J. Kelly appeals from an order for summary judgment entered in this action which he brought against his former employer, Drexel University, alleging that Drexel terminated his employment and subsequently failed to rehire him in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. Section(s) 621-34, the American with Disabilities Act ("ADA"), 42 U.S.C. Section(s) 12101-13, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. 951-63 (1991). In addition, Kelly alleges that Drexel discriminated against him with respect to his compensation, terms, conditions, and privileges of employment on the basis of his age.

The district court entered summary judgment in Drexel's favor. Kelly v. Drexel Univ., 907 F. Supp. 864 (E.D. Pa. 1995). The court held, first, that Kelly was not disabled for the purposes of the ADA and thus was not entitled to protection under that Act. The court went on to hold in the alternative that even if Kelly were legally disabled, he failed to produce sufficient evidence that Drexel had discriminated against him on the basis of his impairment. Further, the court held that Drexel did not discriminate against Kelly due to his age either. The court also rejected Kelly's claims with respect to rehiring and compensation, terms, conditions, and privileges of employment. Kelly then appealed.

In view of the procedural posture of the case, we recite the facts in a light most favorable to Kelly. Drexel hired Kelly, who was then 56 years old, in April 1981, as a buyer in its purchasing department. In September 1987, Kelly fractured his hip, leaving him with a noticeable limp. His orthopaedic specialist diagnosed his condition as severe post-traumatic degenerative joint disease of the right hip and protrusio acetabulum of the right hip joint. In January 1993, Drexel eliminated Kelly's position. At the time Drexel discharged Kelly, the purchasing department consisted of the director, James Graham, a buyer assistant, and three buyers, each with distinct areas of responsibility. Kelly, who then was 68 years old, was the senior buyer, and supervised general purchases for the university. Thomas Tucker (age 54) was the scientific buyer and handled purchases for the science departments. John Dick (age 46) was the physical plant buyer and was responsible for the university's physical plant department.

In 1993, Drexel was experiencing financial difficulties and as a part of a university-wide effort to cut spending, Freddie Gallot, Drexel's vice president and treasurer, instructed Graham to reduce the purchasing department's budget by $30,000. Graham determined that he could attain the required savings by eliminating Kelly's position, which paid $32,340, and assigning Kelly's responsibilities to Tucker and himself. On January 26, 1993, Drexel notified Kelly that his position was to be eliminated effective January 31, 1993.

On July 1, 1993, Kelly filed a charge of disability and age discrimination with the United States Equal Employment Opportunity Commission ("EEOC") and a similar complaint with the Pennsylvania Human Relations Commission. After the EEOC issued a right to sue letter, Kelly brought suit on August 29, 1994, in the district court. On June 23, 1995, Drexel moved for summary judgment. On November 9, 1995, the district court, pursuant to its memorandum opinion of November 7, 1995, entered an order granting Drexel's motion and on December 7, 1995, the court entered an order denying Kelly's motion for reconsideration. Kelly filed a notice of appeal on December 6, 1995, and an amended notice of appeal on December 19, 1995.

As we have indicated, the court found that Kelly was not disabled and that Drexel did not discriminate against him when it discharged him. Kelly challenges these determinations on this appeal. As we also have indicated, the district court rejected Kelly's claims that Drexel discriminated against him with respect to rehiring and with respect to compensation, terms, conditions, and privileges of ...


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