plaintiff was regarded as having a mental impairment.
b. Regarded as Having Such an Impairment
The ADA broadly defines disabled to include those persons who have impairments which are not substantial limitations on a major life activity but who are regarded as substantially limited in a major life activity by their employers. See 42 U.S.C.A. § 12102(2)(C); see also Kelly, 94 F.3d at 108; Nave, 1997 WL 379174 at *8 (citing 29 C.F.R. § 1630.2(l)(3)); Wilson, 964 F. Supp. at 909. The focus of such an inquiry is not on the plaintiff's actual abilities but instead, is "on the reactions and perceptions of the persons interacting or working with [the plaintiff]." Kelly, 94 F.3d at 108-09 (citing 2 EEOC Compliance Manual, § 902, at 902-3 to 902-4).
However, an employer's acknowledgment of an impairment, without more, is not enough to show the employer regarded the employee as disabled. In Kelly, the Third Circuit explained that "the mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employment decision." 94 F.3d 102 at 109 (where plaintiff walked with a visible and apparent limp court determined that knowledge of impairment was insufficient to show that employer regarded plaintiff as disabled); Wilking, 983 F. Supp. 848, 1997 WL 694968 at *6.
In the instant case, most of the facts plaintiff proffers suggest nothing more than that defendant was aware of and even acknowledged plaintiff's impairment. The only relevant evidence that could possibly suggest that defendant regarded plaintiff as disabled are the following three incidents or comments: 1) the fact that Menzel took away the petty cash duties from plaintiff, 2) that Menzel may have stated that plaintiff would not be able to perform her job when she returned from medical leave, and 3) that Menzel may have told plaintiff she had her "ups and downs."
While it appears that Menzel did, in fact, take away the petty cash responsibilities after plaintiff made mistakes in handling it, this fact alone is not sufficient to show that Menzel perceived plaintiff as disabled and thus not able to learn, think, or concentrate or to perform a broad range of jobs or a classification of jobs. See (Letter from Menzel to Ms. Funk, 11/22/93)(indicating a problem with petty cash); see also Soileau, 928 F. Supp. at 51 (quoting Heilweil v. Mt. Sinai Hosp., 32 F.3d 718, 723 (2d Cir. 1994)) ("an impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limiting one"); Panzullo, 968 F. Supp. at 1025 (plaintiff not disabled where impairment only precluded plaintiff from doing heavy lifting which was only a small part of the job).
Plaintiff also argues that Menzel regarded her as disabled since a co-employee, Barbara Burhans, allegedly told plaintiff that she overheard Menzel tell another employee that plaintiff would never be able to handle the work she was doing when she returned from medical leave
and that Menzel told plaintiff that she had her "ups and downs." (Taylor Dep. 7/1/97 at 117-18; Taylor Dep. 5/27/97 at 141). Menzel denies making these statements. However, even if Menzel did make the statements and assuming the hearsay were reducible to an admissible form at trial, these statements do not show that Menzel regarded Taylor as substantially limited in her ability to perform major life activities due to her impairment. There is nothing inherent in either statement to indicate that Menzel's alleged belief that plaintiff could not perform her job was due to plaintiff's perceived disability. See generally Wilking, 1997 WL 694968 at *6 (finding that employer's statements that "this is a stressful place and it's not going to get better. This is not a good fit if someone has some vulnerability to stress as [Wilking] apparently does" and that it is "hard to know when you're a therapist and when you're a supervisor" were insufficient to establish that the employer regarded plaintiff as disabled); Johnson v. Boardman Petroleum, Inc., 923 F. Supp. 1563, 1568-69 (S.D. Ga. 1996)(finding that employer did not regard plaintiff as disabled where employer told plaintiff to seek professional help and told plaintiff she was physically and mentally incapable of continuing in her position).
Therefore, we find that plaintiff has not met the burden of providing sufficient evidence from which a reasonable jury could find that she was regarded as disabled within the meaning of the ADA. Thus, plaintiff can not meet the first element of a prima facie case under the ADA.
2. Was Plaintiff an Otherwise Qualified Individual With a Disability?20
Even if plaintiff were able to satisfy the first element of a prima facie case of disability discrimination, she still has not met prong two of a prima facie case as there is insufficient evidence from which a reasonable jury could conclude that plaintiff is an "otherwise qualified individual with a disability." See Gaul, 134 F.3d at 580.
The Third Circuit applies "a two-part test to determine whether someone is 'a qualified individual with a disability.'" Id. (quoting 29 C.F.R. pt. 1630, App. at 353-54).
First, a court must consider whether 'the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.' Second, the court must consider 'whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation.'
Id. In making this determination, the relevant time frame is when the adverse employment decision was made. Id. Further, if an employee requests an accommodation, then the employee bears the burden of showing that the requested accommodation is possible or plausible. See Gaul, 134 F.3d at 580 (plaintiff must "make at least a facial showing that his proposed accommodation is possible"); Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir. 1996)("it falls to the employee to make at least a facial showing that such accommodation is possible"); Walton, 1997 WL 717053 at *11 ("plaintiff must show that a request for a possible or plausible accommodation was made"). If the requested accommodation is transfer to another department or supervisor, then a plaintiff must demonstrate, that "there were vacant, funded positions whose essential duties [she] was capable of performing with or without reasonable accommodation, and that these positions were at an equivalent level or position as [her][former job]." Gaul, 134 F.3d at 580 (quoting Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir. 1995); Shiring, 90 F.3d at 832; see also Walton, 1997 WL 717053 at *11.
Defendant is not arguing that plaintiff does not have the requisite education or background to satisfy the first part of the test to determine qualification. Instead, defendant argues that plaintiff has admitted that she could not perform the essential functions of her job.
See (Def.'s Mem. at 37). Plaintiff, however, contends that she would have been able to perform the essential functions of her job if she had been accommodated.
(Taylor Dep. 5/22/97 at 157 & 160).
Plaintiff states that she requested an accommodation in a meeting in March of 1994, when she allegedly inquired as to whether there were other positions to which she could be reassigned.
(Pl.'s Mem. at 24-25; Taylor Dep. 7/1/97 at 117- 118). It is disputed whether plaintiff requested an accommodation for any limitations she may have suffered as a result of her impairment.
However, even if plaintiff's query as to whether there were other open positions could qualify as a request for accommodation, she still has not shown that this requested accommodation was possible or plausible. See Gaul, 134 F.3d at 580. In fact, when plaintiff asked Ferrara if there were any other open positions to which she could be transferred, Ferrara answered that there were none. (Taylor Dep. 7/1/97 at 117-18). Plaintiff testified that she agreed with Ferrara that there were no other open positions. (Taylor Dep. 7/1/97 at 118). As such plaintiff has not met the burden of showing that her "request" to be transferred to another position was a plausible or possible accommodation. See Gaul, 134 F.3d at 580-81.
Therefore, plaintiff has not produced sufficient summary judgment evidence to show that she was a "qualified individual with a disability." See Lawrence, 98 F.3d at 69 (finding summary judgment properly granted where plaintiff did not present sufficient evidence to allege or explain what actual accommodations were lacking). Thus, while the Court is not insensitive to the loss of employment after 20 years with the same employer, we simply cannot, on the record before us, find that plaintiff presents sufficient evidence to satisfy prongs one or two of a prima facie case of failure of accommodate under the ADA. Therefore, defendant's Motion for Summary Judgment will be granted on the Failure to Accommodate Claim.
B. Disparate Treatment Claim
In as much as plaintiff attempts to bring a disparate treatment claim, she has not produced sufficient evidence from which a reasonable jury could find for her on such a claim.
A disparate treatment claim operates under the burden shifting analysis of McDonnell Douglas. See McNemar v. Disney Store, Inc., 91 F.3d 610, 619 (3d Cir. 1996); Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 68 (3d Cir. 1996); Walton, 1997 WL 717053 at *10. Thus, in order to make out a disparate treatment claim, plaintiff must first demonstrate a prima facie case of discrimination. Then the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the discharge. If defendant makes this showing, plaintiff has the opportunity to demonstrate that the stated reason is actually a pretext for discrimination. See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). To do this, plaintiff must (1) discredit the proffered reasons for termination either directly or circumstantially or (2) adduce evidence that discrimination was more likely than not a motivating or determinative factor for the termination. See Lawrence, 98 F.3d at 65; Walton, 1997 WL 717053 at *3.
A prima facie case for disparate treatment requires a showing that plaintiff (1) belongs to a protected class; (2) was qualified for the position; (3) was dismissed despite being qualified; and (4) was ultimately replaced by a person sufficiently outside the protected class to create an inference of discrimination. Walton, 1997 WL 717053 at *4. As the first two elements of this prima facie case involve the same analysis as the first two prongs of the failure to accommodate claim, we have already determined that plaintiff has not met these two elements. Moreover, plaintiff has also failed to make a showing of an inference of discrimination to satisfy a prima facie case. See Wooten, 1997 WL 790408 at *9 (prima facie case requires evidence to create an inference of discriminatory motive). Assuming for the moment that plaintiff can present sufficient evidence to show that she was a qualified individual with a disability, she must also present sufficient evidence to create an inference that she was treated less favorably than other non-disabled employees. See Walton, 1997 WL 717053 at *5 (the 3rd and 4th prongs of a prima facie case require a showing that a plaintiff "was dismissed despite being qualified and replaced with someone sufficiently outside the class to create an inference of discrimination"); Wooten, 1997 WL 790408 at *5.
Plaintiff has presented no evidence to show that non-disabled employees were treated differently than she was. Plaintiff has not even presented evidence that she was replaced by someone outside the alleged class so as to create an inference of discrimination. See Walton, 1997 WL 717053 at *5. Without such evidence she can not make out a prima facie case of disparate treatment. See Wooten 1997 WL 790408 at *5.
Further, even if plaintiff could establish a prima facie case, she has not presented sufficient evidence to show that defendant's proffered reason for terminating her was a pretext. Defendant's have met their burden of showing a legitimate, non-discriminatory purpose for her termination. See Emberger v. Deluxe Check Printers, 1997 U.S. Dist. LEXIS 17034, 1997 WL 677149, *4 (E.D. Pa.); Nanopoulos v. Lukens Steel Co., 1997 U.S. Dist. LEXIS 11262, 1997 WL 438463, *4 (E.D. Pa.). Plaintiff's errors and omissions are well documented in the nine memoranda from defendant. Some of the errors were of greater consequence than others, but they all show that plaintiff was not performing up to the standards set by her principal, Menzel. In fact, plaintiff admits that she was not performing up to the standards set by Menzel and that she made many errors. See (Taylor Dep. 7/1/97 at 102).
Plaintiff has the burden to provide some evidence to discredit defendant's proffered reason. See Walton, 1997 WL 717053 at *8. Plaintiff, however, merely makes conclusory allegations that defendant's stated reason for termination--her poor performance--was a pretext since she received strong performance reviews for her first 19 years of employment and only received poor reviews after she returned from her hospitalization. These conclusory allegations, without more, are insufficient. See Fed.R.Civ.P. 56; Walton, 1997 WL 717053 at *8. Therefore, defendant's Motion for Summary Judgment is granted as to the disparate treatment claim.
An appropriate Order follows.
AND NOW, this 20th day of March, 1998, upon consideration of Defendant's Motion for Summary Judgment and Plaintiff's Response thereto as well as the Supplemental Responses filed by the parties, it is hereby ORDERED that, for the reasons set forth in the foregoing Memorandum, the Motion is GRANTED.
BY THE COURT:
J. CURTIS JOYNER, J.