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September 28, 1996

ROBERT V. KROUSE, Plaintiff,

The opinion of the court was delivered by: MCLAUGHLIN


 Presently pending before the Court are several motions, including motions for dismissal and/or for summary judgment by the Defendants, a motion on behalf of certain Defendants to strike Plaintiff's affidavit, and motions by the Plaintiff to reopen discovery and for leave to file a supplementary brief in opposition to summary judgment. For the reasons stated below, we will grant summary judgment in favor of Defendants, grant the motion to strike Plaintiff's affidavit, and deny Plaintiff's motion to reopen discovery and file supplementary briefs. We will deny all remaining motions as moot.


 A. The Parties

 American Sterilizer Company ("AMSCO") is a Pennsylvania corporation engaged in the design, manufacturing, sale and servicing of hospital equipment, with its principal place of business located in Pittsburgh, Pennsylvania and a production facility located in Erie, Pennsylvania. The Erie production facility engages in the manufacture of sterilizers.

 Michael J. Coughlin ("Coughlin") is AMSCO's Manager of Factory/Labor Relations at the Erie production facility. He directs the movement of manpower within the plant and is involved with job postings and hirings, transfers, and union grievances with the plant.

 G. Scott Lightner ("Lightner") *fn2" is AMSCO's Production Control Manager. In this capacity he is responsible for supervising all aspects of production and ensuring that goods are completed in a timely manner according to customer requirements. Additionally, Lightner is responsible for all welding department operations and bears the title of Welding Department Manager.

 John T. Hardin ("Hardin") is currently employed with AMSCO in the capacity of Director, Industrial Relations/Health and Safety Management.

 Liberty Mutual Insurance Company ("Liberty Mutual") is AMSCO's workmen's compensation carrier. Nanette S. Stafford ("Stafford") is a registered nurse employed with Liberty Mutual. Jason M. Nuara ("Nuara") is a former claims adjuster for Liberty Mutual.

 B. Plaintiff's Employment History

 Krouse began employment with AMSCO on July 29, 1974 as a member of the bargaining unit represented by United Auto Worker's ("UAW") Local 832. Krouse held various jobs at AMSCO and in 1989 was awarded a position as a channel welder. These employees are responsible for welding channels to sterilizer shells in accordance with industry standards and specifications.

 On January 14, 1991, Krouse suffered a work-related injury to his back. Following this injury, Krouse's advising health care professionals placed certain medical restrictions on the type of activity he could perform. From January 15, 1991 through May 20, 1994, AMSCO provided work assignments for Krouse that complied with his medical restrictions. During this time, Krouse had periods of total and partial disability.

 From June 21, 1993 to April 1, 1994, and again from April 20 to May 20, 1994, Krouse performed his previous channel welder position as modified by AMSCO. Prior to his return in June, 1993, Krouse's medical restrictions had been modified and reduced by his doctor, who indicated that Krouse was able to perform the essential functions of the modified channel welder job with the accommodations implemented by AMSCO.

 The essential job functions of a channel welder include actual channel welding, loading and changing the spools that hold the welding wire, fitting and tacking the channels to the shells, loading and unloading the racks, cleaning the channels and performing operator inspections. AMSCO states that these essential functions must be performed according to the Company's expected levels of performance and the employee must be capable of regular and predictable job attendance. AMSCO further states that additional job requirements are established in the performance and time standards set by AMSCO's industrial engineers for the completion of various work projects. Employees' performance percentages are calculated on a weekly basis by comparing the standard hours established by the Company for completion of each project with the actual direct hours worked by the employee on the project. AMSCO also records "Blue Labor," which is a record of the number of hours each week not counted toward direct labor or used in calculation of performance percentages. This includes down time on a machine or time when an employee is otherwise not able to work on production, such as time taken to receive medical treatment. Fully trained channel welders are expected to pursue the applicable performance percentage standards.

 AMSCO claims that Krouse did not adequately perform the essential job functions of his modified channel welder position. Krouse's performance percentages from January 1 to May 20, 1994 averaged between sixteen (16) and thirty (30) percent of the expected standard, whereas the other fully trained channel welders performed at or above fifty percent of the expected performance standard.

 On or about March 23 and 31, 1994, Krouse's direct supervisor, Charles Spencer, counseled him about his level of performance. Krouse responded during the March 31 conference that, since he was not living up to Spencer's expectations, he was going to visit First Aid and then go home. Dr. Young, Krouse's chiropractor and primary health care provider, excused Krouse from work the next day on the ground that he was totally disabled.

 On April 20, 1994 Krouse received a doctor's release to return to work. That same day, Coughlin, Lightner, and Krouse reviewed the medical restrictions outlined in an evaluation completed by Dr. Young on April 15, 1994. Lightner and Coughlin were of the opinion that Krouse's job responsibilities fell well within the medical restrictions placed on him by Dr. Young. Krouse himself admitted that no further accommodations were necessary to allow him to perform the essential job functions of the channel welder position. Krouse also admitted that he was working to the highest percentage possible. Lightner and Hardin also met with Krouse at some point on April 20 and advised him that his current 20 to 30% level of efficiency was unacceptable. Krouse responded that AMSCO should put someone else into his work station to help him.

 AMSCO also claims that Krouse was frequently absent from work and that these absences created problems in the Erie plant. From January 1994 to April 14, 1994, Krouse left the Erie plant abruptly and without prior notice more than twenty times to visit Dr. Young. During the eleven-month period in which he held the modified channel welder position, Krouse left the facility over fifty times for unscheduled visits with Dr. Young. During their April 20, 1994 meeting, Hardin and Lightner discussed with Krouse the amount of time that Krouse was spending on doctor visits and the fact that these unscheduled absences resulted in substantial production delays. Hardin and Lightner observed that the Company was often left without a welder to perform those critical production functions and that this, in turn, resulted in production backlogs in other departments. Their position was that Krouse should schedule appointments that could be managed. Krouse responded that he could not guarantee the frequency or the time of his doctor appointments because he had to be treated as he felt the need. However, he indicated his willingness to negotiate a job that better suited his situation. Hardin advised Krouse that, under the UAW/AMSCO agreement, the Company did not have the right to unilaterally create a job for him, as all new positions had to be open for bidding. Accordingly, Krouse was advised to return to work with the knowledge that the issues of his absences and efficiency were being addressed.

 On May 3, 1994, the welding department completed another review of Krouse's efficiency and overall performance and found that it remained between twenty-five and thirty percent. Based upon this performance rate, coupled with Krouse's admission that he was working to the highest percentage possible, Lightner concluded that Krouse could not perform the essential functions of the channel welder position. He therefore recommended that Krouse be removed from the channel welder position as soon as possible.

 During a meeting on May 20, 1994, Coughlin informed Krouse that his low efficiencies were causing an increase in costs to the Company. AMSCO had provided Krouse all of the accommodations and modifications requested by his physician and there were no other vacant positions available at that time which Krouse could perform. Krouse therefore was not reassigned to TWG. Instead, Coughlin advised him that, as of May 23, 1994, he would be placed on worker's compensation leave and provided with the full amount of benefits available under the Pennsylvania Workmen's Compensation Act.

 From May 23, 1994 to February 21, 1995, Krouse remained on worker's compensation leave. On February 21, 1995, Krouse was placed in a modified Dismantle and Tag position for which he had bid. This job required him to perform duties which were consistent with his medical restrictions. After taking intermittent periods of worker's compensation leave, Krouse ultimately returned to leave status on April 21, 1995 and has not since returned to active status. Krouse admits that, as of April 21, 1995, he became totally disabled.

 As a result of his back injury, Krouse sought a disability pension and filed a claim with the UAW/AMSCO Pension Board of Administration, alleging total and permanent disability. The claim was reviewed on October 19, 1994 by four members of the Pension Board comprised of three union representatives and one AMSCO representative. The Board reviewed various documents presented by Krouse, including the denial of a previous claim for Social Security disability benefits, *fn3" doctors' reports, correspondence from Krouse, and a work tolerance evaluation performed on September 19-20, 1994. *fn4" It determined that Krouse was not eligible for disability benefits at that time and denied his claim. Krouse did not appeal the denial.

  Following his placement on worker's compensation leave, Krouse filed a number of union grievances and EEOC charges relevant to his present claims. Thereafter, he filed these consolidated actions, asserting causes of action under ADA and ADEA. *fn5" The AMSCO and Liberty Mutual Defendants have separately filed motions for summary judgment. We discuss those motions first because of their potentially dispositive nature.


 A. Defendants' Motions for Summary Judgment

 1. Standard of Review

 It is well settled that summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, all facts must be construed in the light most favorable to the non-movant. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990).

 Once the moving party has satisfied its burden of identifying evidence which demonstrates the absence of a genuine issue of material fact, the non-moving party must demonstrate by affidavits or other appropriate materials the existence of specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987). In doing so, the non-movant may not rest upon bear assertions, conclusory allegations or mere suspicion, but must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981). An issue of material fact is considered "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). See also Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 2. Plaintiff's ADA Claims

 Krouse has asserted several violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. Specifically, he claims that the AMSCO Defendants unlawfully retaliated against him for filing charges of disability discrimination with the EEOC by: (1) placing him on worker's compensation leave; (2) failing to offer him a disability pension; and (3) refusing to create a special position for him as a long service employee under Section K of the applicable collective bargaining agreement. *fn6" Krouse also asserts that the AMSCO and Liberty Mutual Defendants conspired to harass him and retaliated against him by abusing the Workmen's Compensation Act for the purpose of circumventing ADA's requirements and preventing him from working. These claims will be addressed seriatim.

 a. AMSCO's Decision to Place Plaintiff on Workmen's Compensation Leave

 We first consider Krouse's allegation that he was removed from his position as channel welder and placed on worker's compensation leave in retaliation for filing charges of disability-related discrimination.

 In order to come within the protection of the ADA, a plaintiff must establish that he or she is a "qualified individual with a disability." 42 U.S.C. § 12112(a). This term is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The AMSCO Defendants argue that Krouse cannot satisfy this definition. They claim that Krouse is judicially estopped to assert status as a "qualified individual with a disability" by virtue of his previous assertions of total disability in connection with applications for Social Security disability insurance benefits, disability pension benefits, and disability credit insurance benefits.

 The Third Circuit Court of Appeals recently explained the concept of judicial estoppel in Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir. 1996):

Judicial estoppel, sometimes called the "doctrine against the assertion of inconsistent positions," is a judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent with one that she has previously asserted in the same or in a previous proceeding. It is not intended to eliminate all inconsistencies, however slight or inadvertent; rather, it is designed to prevent litigants from "playing 'fast and loose with the courts.'" ... "The basic principle ... is that absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory."

 81 F.3d at 358 (internal citations omitted). Under Ryan, "any application of the doctrine must rest upon a finding that the party against whom estoppel is sought asserted a position inconsistent with one she previously asserted in a judicial proceeding." Id. at 361. Such a determination entails a two-part inquiry: (1) is the party's present position inconsistent with a position he or she asserted in a previous proceeding; and (2) if so, did the party assert either or both of the inconsistent positions in bad faith -- i.e. "with an intent to play fast and loose with the court." Id. Both prongs must be satisfied in order for judicial estoppel to apply.

 The AMSCO Defendants point out that, in June or July of 1994, Krouse represented to the Social Security Administration under oath that he was completely and totally disabled. After his claim was denied by the Administration, Krouse appealed the decision and even wrote to his United States Senator, urging that the case be reopened. Krouse also applied for a disability pension under the AMSCO/UAW Pension Plan, alleging total and permanent disability for purposes of the plan. Krouse's chiropractor and primary health care professional, Dr. Daniel L. Young, has certified that Krouse was permanently disabled as of May 20, 1994. Additionally, Krouse has been receiving benefits under a disability credit insurance policy based on his representations and those of his doctor that he is totally ...

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