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POPKO v. PENNSYLVANIA STATE UNIV.

February 27, 1998

JANE T. POPKO, Plaintiff,
v.
PENNSYLVANIA STATE UNIVERSITY, THE MILTON S. HERSHEY MEDICAL CENTER, JAMES ADAMS, TASNA KITCH, AND SUZANNE SCHICK, Defendant.



The opinion of the court was delivered by: CAPUTO

 I INTRODUCTION

 Plaintiff, Jane T. Popko, brings this unlawful discrimination and retaliation action under the American with Disabilities Act (ADA), 43 U.S.C. §§ 12101-12213 (Law. Co-op. Supp. 1997) and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Stat. Ann. §§ 951-963 (1991 & Supp. 1997). On November 22, 1996, the Equal Employment Opportunity Commission ("EEOC") issued a right to sue letter to plaintiff who then filed a complaint in the Middle District of Pennsylvania on January 14, 1997. Defendants Pennsylvania State University, the Milton S. Hershey Medical Center, James Adams, Tasna Kitch, and Suzanne Schick have moved for summary judgment pursuant to Federal Rules of Civil Procedure 56. *fn1" For the following reasons, the court will grant the defendants' motion.

 II BACKGROUND

 Taken in a light most favorable to the non-moving party, the facts are as follows. In February of 1973, plaintiff was hired by the defendant as a Medical Technologist in the Clinical Laboratories, and she has been employed there ever since. Plaintiff has two conditions which she claims are disabilities within the meaning of the Act. In her affidavit submitted in opposition to defendants' summary judgment motion, plaintiff states:

 
a) Right brachial plexopathy - cannot swim or play sports involving dexterity of [both] arms; unable to do anything special with hair other than comb and blow dry; . . . unable to use keyboard (piano or computer) with right arm; unable to do any overhead lifting that requires the use of both arms; develop pain in neck and shoulders with any repetitive activity due to over compensation of [her] left arm.
 
b) Idiopathic epilepsy (sleep-related seizure disorder) - need regular sleep cycle of 7-8 hours that I must compensate for every time if not sufficient; defer driving automobile if I have any symptoms of seizure activity, and have frequently been driven to work by my husband after working evening shifts; I have permantly restricted my evening activities to the extent that I am home and asleep by a regular time in order to meet my requirements; I would not be capable of child rearing responsibilities if I was still scheduled for rotating shifts and late evening events and, my husband currently assumes the exclusive responsibility for those matters involving our children, and any other issues of any nature that may occur during my period of rest.

 (Pl.'s App. 6.) Although limited, plaintiff can bike, garden, sail and drive. (Def.'s App.. 32 at 4-19, 42-44). In addition, plaintiff's disorder does not limit her from working a standard day time shift.

 On March 2, 1973, plaintiff had a grand mal seizure because of her failure to maintain an adequate sleep-wake cycle of seven to eight hours per day. At that time, plaintiff did not seek an accommodation from the defendant. In or around the same time, plaintiff informed her then lab manager, Lyman Smith, of her disorder. *fn2" In March of 1994, the defendant modified plaintiff's duties to include blood-collection one morning per week. On March 31, 1994, plaintiff asked for and received a medical exemption from the blood-collection work due to her injured arm. Also plaintiff stated she informed her supervisors in March of 1994 that she had a sleep-related disorder. In February of 1995, a survey was circulated proposing that all those technologists who were exempt from blood-collecting duties take on additional evening shifts. Plaintiff complained about the proposal to Human Resources. The proposal was never implemented.

 On March 1, 1995, plaintiff's physician recommended that she maintain consistent day time shifts because of her medical condition. On March 21, 1995, Defendant James Adams asked if her condition would hamper plaintiffs duties as a senior technologist. Plaintiff claims that this inquiry intimidated her. Defendants required plaintiff's physician to give several clarifications of her medical condition. The physician stated that plaintiff's injured arm and her sleep related disorder made it "medically necessary" for her to maintain consistent day time shifts. On April 5, 1995, defendants exempted plaintiff from working evening shifts.

 Plaintiff receives an evaluation every year. The evaluation rates employees performance by four "mechanisms": 1) does not met standards, 2) approaching standards, 3) meets standards, and 4) exceeds standards. (See e.g., Def. App. 29). In 1995, plaintiff received an overall performance evaluation of "does not meet standards." This resulted in her receiving only a 1.0% raise instead of a 1.9% raise. In 1996, she received an evaluation of "approaching standards." Prior to 1995, plaintiff had received either a "meets standards" evaluation or an "exceeds standards" evaluation. Because of her conditions, plaintiff alleges that the 1995 and 1996 evaluations were based on discrimination resulting in lost opportunities to make advances in education, skill, and experience, and severe emotional damage.

 III DISCUSSION

 1. Summary Judgment Standard of Review

 Federal Rule of Civil Procedure 56(c) provides that the moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show 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. A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022, 115 S. Ct. 590, 130 L. Ed. 2d 503 (1994). "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

 Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 329, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988); Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary judgment, after adequate time for discovery, where a party "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. "The moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 323.

 2. The Americans with Disabilities Act *fn3" ...


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