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PANZULLO v. MODELL'S PA.

July 8, 1997

JAMES PANZULLO, Plaintiff,
v.
MODELL'S PA., INC., Defendant.



The opinion of the court was delivered by: ROBRENO

 EDUARDO C. ROBRENO, J.

 July 8, 1997

 This federal discrimination lawsuit arises out of plaintiff's allegation that his employer terminated him from his position as footwear salesman in violation of the American with Disabilities Act of 1990 ("ADA") because of a physical disability caused by cavernous hemangioma, a condition resulting in the formation of blood vessel tumors in his right hand. Presently before the Court is the defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, the Court will grant the motion for summary judgment.

 I.

 Summary judgment is appropriate if the moving party can "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The Court must accept the non-movant's version of the facts as true, and resolve conflicts in the non-movant's favor. Big Apple BMW, Inc. v. BMW of N. Amer., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 122 L. Ed. 2d 659, 113 S. Ct. 1262 (1993).

 The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the movant has done so, however, the non-moving party cannot rest on its pleadings. See Fed. R. Civ. P. 56(e). Rather, the non-movant must then "make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by depositions and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 II.

 Defendant argues that it is entitled to summary judgment on the ground that plaintiff has not raised a genuine issue of material fact as to whether his physical impairment qualifies as a disability, and therefore, according to defendant, plaintiff cannot establish a prima facie case under the ADA. *fn1" Plaintiff counters, based on his medical expert's opinion, that the lifting restrictions that he is under, which preclude him from lifting boxes full of shoes and performing heavy physical work, establish that he has a disability within the meaning of the ADA.

 A.

 The Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, prohibits an employer from discriminating "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). To establish a prima facie case, a person seeking relief under the ADA must show (1) that he is a member of a protected class; (2) he was qualified for the position; (3) he was discharged; and (4) the position was ultimately filled by a person not of the protected class. Olson v. General Electric Astrospace, 101 F.3d 947, 952 (3d Cir. 1996).

 As to the first prong, e.g. that he is a member of a protected class, plaintiff must show that he is a disabled person within the meaning of the ADA. The ADA defines the term "disability" as follows:

 
The term "disability" means, with respect to an individual--
 
(A) a physical or mental impairment that substantially limits one or more of the following major life ...

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