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March 3, 1997

ROBERT C. HOWELL, Plaintiff,
SAM'S CLUB # 8160/WAL-MART, Defendant.

The opinion of the court was delivered by: CAHN

 Cahn, C.J.

 March 3, 1997


 Plaintiff, Robert C. Howell, brought this lawsuit against his former employer, Defendant Sam's Club # 8160/Wal-Mart ("Sam's Club"), alleging Sam's Club discharged him in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ยง 12101 et seq.1 Sam's Club has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, the court grants Sam's Club's Motion.


 Taken in the light most favorable to the non-moving party, the facts are as follows. In 1981, while working for the United States Navy, Plaintiff Robert Howell injured his back after falling through a catwalk that was thirty-four feet above the ground. (Howell Dep. pg. 106). He spent three weeks in a traction cast, and the Navy put him on limited duty after he was discharged from the hospital. After Howell left the Navy in 1984, he worked in civilian jobs, and he only missed "one or two days here and there" because of his back condition. (Howell Dep. pg. 109).

 In 1990, Howell applied to be a maintenance worker at the Sam's Club facility in Reading/Temple Pennsylvania. On his employment application, Howell disclosed that he had fractured his skull in 1965, but stated he was "okay." Howell checked the "No" box to a question on the employment application that asked whether the applicant had "any physical or mental condition which may limit your ability to perform the job applied for or pose a potential risk to other employees." Howell did not disclose on his employment application that he had a spinal disc condition due to his Naval injury, or that he had a knee impairment. *fn2" He claims he did not disclose these conditions on the employment application because Harry Gordon, a general manager at Sam's Club, told him that he would not be hired if he disclosed these conditions. (Howell Dep. pg. 71). Gordon asked Howell if his back and knee problems would prevent him (Howell) from carrying out the duties of a maintenance worker. Howell replied that he did not think his impairments would impede his ability to do the job. (Howell Dep. pgs. 75-77). Howell began working for Sam's Club in October 1990.

 In January 1993, Howell transferred to the Sam's Club facility in Pinellas Park, Florida. While working in Pinellas Park, Howell was discharged for a remark that he allegedly made in the breakroom. *fn3" After Howell appealed his discharge, Sam's Club converted his discharge to a "decision making day" so Howell was allowed to remain at Sam's Club. (Howell Dep. pg. 39). Howell signed a statement acknowledging that several partners at Sam's Club had concerns about Howell making racial and sexual comments, and Howell was put on notice that any further inappropriate comments would result in his termination. (Howell Dep. pgs. 44-45). In April 1993, Howell was transferred from the Pinellas Park facility to one in Clearwater, Florida. He stayed in Clearwater until the end of 1993, at which time he moved back to the Reading/Temple facility.


 Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is sufficient evidence with which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A factual dispute is "material" only if it might affect the outcome of the case. Id. Any dispute over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Connors v. Fawn Mining Corp., 30 F.3d 483, 489 (3d Cir. 1994), citing Anderson, 477 U.S. at 248.

 When considering a motion for summary judgment, the court must draw all justifiable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. The moving party bears the burden of "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). However, "the mere existence of a scintilla of evidence in support of the plaintiff's position" is insufficient to defeat a motion for summary judgment. Anderson, 477 U.S. at 252. Summary judgment should be directed "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.


 Sam's Club contends that summary judgment is appropriate because Howell has failed to set forth a prima facie case under the ADA.

To establish a prima facie case for discriminatory employment termination, the plaintiff must prove by a preponderance of the evidence that
(1) he belongs to a protected class;
(2) he was qualified for the position;
(3) he was dismissed despite being qualified; and
(4) he was ultimately replaced by a person sufficiently outside the protected class to create an inference of discrimination.

 Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 68 (3d Cir. 1996) (citation omitted). Sam's Club argues that Howell has failed to establish that he is a member of the protected class. *fn5" If a plaintiff establishes a prima facie case of unlawful discrimination, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the plaintiff's rejection. Olson v. General Electric Astrospace, 101 F.3d 947, 951 (3d Cir. 1996), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

Once the employer articulates a legitimate reason for the unfavorable employment decision, the plaintiff must show by a preponderance of the evidence that the employer's proffered explanation was pretextual. In order to defeat a summary judgment motion after the defendant answers plaintiff's prima facie case with legitimate, nondiscriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or ...

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