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WHITE v. STROH BREWERY CO.

August 6, 1998

RICARDO A. WHITE
v.
THE STROH BREWERY COMPANY



The opinion of the court was delivered by: JOYNER

MEMORANDUM AND ORDER

 JOYNER, J.

 August 6, 1998

 This Americans with Disabilities Act ("ADA") case is now before this Court for disposition of the Stroh Brewery Company's motion for summary judgment and plaintiff's cross-motion to dismiss the motion for summary judgment, which is essentially plaintiff's response to the defendant's motion. For the reasons which follow, defendant's motion shall be granted, plaintiff's motion shall be denied and judgment shall be entered in favor of the defendant on the plaintiff's claims against it.

 Statement of Facts

 Plaintiff Ricardo White was employed as a general laborer by the Stroh Brewery Company and its predecessor company, Schaefer Brewing Company from September, 1978 until March 24, 1994 when he was terminated for falsifying company records. (Pl's Am. Complaint, Ps 2, 9). Some three years prior to his termination, on March 18, 1991, plaintiff fell from a forklift while at work and injured his back, which eventually required a surgical disc removal. (Pl's Am. Complaint, P3).

 Mr. White was unable to work for nearly two years. During the period he was out of work, plaintiff received workmen's compensation benefits. Although he returned to work in March, 1993, he suffered a relapse in October, 1993 which required him to miss some 3-4 additional weeks of work. Thereafter, he returned to a light duty, four-hour per day schedule in November, 1993. Mr. White continued to work under this schedule until January, 1994 when the company changed his schedule, against plaintiff's wishes and allegedly in violation of the collective bargaining agreement which was in place with plaintiff's union. (Pl's Am. Complaint, P5). Although plaintiff filed a grievance over his schedule change, Stroh refused to change its position and no further action was taken.

 Following an examination by the defendant's designated physician, Dr. Robert Mauthe, Plaintiff was again taken out of work on February 18, 1994 for "the significant amount of stress in dealing with his pain and with his job at work." (Pl's Am. Complaint, P7, Exhibit "B"). At about this same time, Defendant hired a private investigation firm to conduct surveillance on Mr. White's activities. On three occasions in February, 1994, plaintiff was videotaped while shoveling and snowblowing snow. (Exhibit "D" to Defendant's Motion for Summary Judgment, pp. 10-20). On March 24, 1994, following a discharge hearing, Stroh terminated plaintiff for falsifying company records by misrepresenting his medical condition. (Pl's Am. Complaint, Ps 8-10, Exhibit "D"). After receiving a "right to sue" letter from the EEOC on June 22, 1996, plaintiff instituted this action alleging that he was discriminated against and terminated because of his physical disability in violation of the ADA.

 Standards for Summary Judgment

 The standards for determining whether summary judgment is properly entered in cases pending before the district courts are governed by Fed.R.Civ.P. 56. Subsection (c) of that rule states, in pertinent part,

 
. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

 In this way, a motion for summary judgment requires the court to look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. Liberty Lobby, Inc. v. Dow Jones & Co., 267 U.S. App. D.C. 337, 838 F.2d 1287 (D.C. Cir. 1988), cert. denied, 488 U.S. 825, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). See Also: Aries Realty, Inc. v. AGS Columbia Associates, 751 F. Supp. 444 (S.D. N.Y. 1990).

 As a general rule, the party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In considering a summary judgment motion, the court must view the facts in the light most favorable to the party opposing the motion and all reasonable inferences from the facts must be drawn in favor of that party as well. U.S. v. Kensington Hospital, 760 F. Supp. 1120 (E.D. Pa. 1991); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D. Pa. 1990).

 When, however, "a motion for summary judgment is made and supported [by affidavits or otherwise], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response. . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so ...


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