ADA, an employer is prohibited from discriminating against a qualified individual with a disability because of that individual's disability through its job application procedures, hiring, advancement or discharge of employees, employee compensation, job training or its terms, conditions and privileges of employment. 42 U.S.C. §§ 12111(4), 12112(a). The PHRA, in turn, prohibits an employer from refusing to hire, discharging, or otherwise discriminating against an employee on the basis of age or non-job related handicap or disability. 43 P.S. § 955(a). A "disability" is a physical or mental impairment that substantially limits one or more of the major life activities of an individual (including working), a record of such impairment or being regarded as having such an impairment. 42 U.S.C. § 12102(2); 29 CFR § 1630.2; 43 P.S. § 954(p.1).
To qualify for relief and state a prima facie case under these acts, the plaintiff must establish:(1) that he is a disabled person within the meaning of the Act; (2) that he is qualified to perform the job at issue; that is, with or without reasonable accommodation, he is able to perform the essential functions of the job; and (3) that the employer terminated him because of his disability and replaced him with a non-disabled person. Wooten v. Farmland Foods, 58 F.3d 382, 385, (8th Cir. 1995); Milton v. Scrivner, Inc., 53 F.3d 1118, 1123 (10th Cir. 1995); McCoy v. Pennsylvania Power and Light Co., 933 F. Supp. 438, 440 (M.D.Pa. 1996); Kuehl v. Wal-Mart Stores, Inc., 909 F. Supp. 794, 799 (D.Colo. 1995). Until an employee demonstrates that he was capable of performing the essential functions of his position, with or without accommodation, the employer is under no corresponding duty to make a reasonable accommodation. Whitbeck v. Vital Signs, Inc., 934 F. Supp. 9, 15 (D.D.C. 1996).
Likewise, in determining whether an employee is a qualified person with a disability, the court must examine the essential functions of the job and then evaluate the medical evidence as to whether the employee can perform those functions. Johnson v. City of Port Arthur, 892 F. Supp. 835, 841-842 (E.D.Tex. 1995), citing Gilbert v. Frank, 949 F.2d 637 (2d Cir. 1991) and Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S. Ct. 2361, 2367, 60 L. Ed. 2d 980 (1979).
The basic function of a bus driver is to operate a motor vehicle in a timely, responsible fashion and in such a way that does not threaten the safety of his passengers or other motorists. Myers v. Hose, 50 F.3d 278, 282 (4th Cir. 1995). Under 49 CFR § 391.41(b)(ii)(4), "a person is physically qualified to drive a commercial motor vehicle if that person....has no current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse or congestive heart failure..."
It is clear from the record in this case that plaintiff was employed as a SEPTA bus driver from January, 1981 until February 23, 1992 when he suffered a heart attack. (Exhibit 1, 10-11). While plaintiff's cardiologist certified that he could return to his usual duties as a bus driver as of May 4, 1992, his thallium stress tests continued to show evidence of ischemia. (Exhibit 9). Based upon these test results and SEPTA's doctors' understanding of § 391.41 of the Code of Federal Regulations, defendant's medical department disqualified plaintiff from his position and refused to allow him to return to work. (Exhibits 6, 9, 18).
In addition to the conflicting medical opinions of plaintiff's cardiologist and defendant's medical director, the parties have provided reports from additional physicians which bolster their respective medical opinions and positions. (Exhibits 6, 17, 18). Included in these materials is a report from one of plaintiff's medical experts, Nicholas L. DePace, M.D., which indicates that the plaintiff is entirely asymptomatic from a cardiac standpoint and that he found no evidence of acute or significant ischemic changes in either his examination of plaintiff or in his review of plaintiff's medical records and thallium stress tests. (Exhibit 17).
In view of this conflicting evidence, this Court finds that a material issue of fact exists as to whether plaintiff could perform the essential functions of a bus driver and whether he is indeed a qualified person with a disability within the meaning of the ADA and the PHRA. It therefore follows that summary judgment cannot be granted in defendant's favor.
We must make the same finding as to plaintiff's claim that SEPTA failed to reasonably accommodate him after it refused to allow him to return to work. In so doing, we reject defendant's allegation that this issue was not presented to and considered by the EEOC. To the contrary, even a cursory reading of the plaintiff's affidavit in support of his EEOC charge and the EEOA's determination demonstrates that evidence on the reasonable accommodation issue was presented to and considered by the agency. ("Charging Party sought accommodation by seeking a "light duty" job. Although Respondent states that it has no "light duty" jobs, Respondent has the burden to show definitively that there are no available jobs that Charging Party can perform which would reduce the risk...") (Exhibit 9, at 0026). As the deposition testimony of plaintiff, Thomas Cain, Sylvia Chandler, Peggy Fitts, Robert Stover and the affidavit of Bernard McNeilis may be interpreted as suggesting that alternative positions may have been available for Mr. Latch, we cannot find that no material issue of facts exists as to whether SEPTA could have reasonably accommodated plaintiff after it disqualified him from driving. (Exhibits 1-5, 8, 21-24).
For all of these reasons, defendant's motion for summary judgment is denied as to Counts I and II of the plaintiff's complaint but granted as to Counts III and IV. An appropriate order follows.
AND NOW, this 12th day of November, 1997, upon consideration of Defendant's Motion for Summary Judgment and Plaintiff's Response thereto, it is hereby ORDERED that the Motion is GRANTED IN PART and DENIED IN PART and Judgment is hereby entered in favor of Defendant on Counts III and IV of Plaintiff's Complaint.
BY THE COURT:
J. CURTIS JOYNER, J.
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