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Mondzelewski v. Pathmark Stores

December 23, 1998

JOSEPH A. MONDZELEWSKI, REBECCA MONDZELEWSKI APPELLANTS
v.
PATHMARK STORES, INC., SUPERMARKETS GENERAL CORP. APPELLEE



(D.C. No. 96-cv-00359) (District Judge: Honorable Murray M. Schwartz)

Before: Sloviter, Scirica, and Alito, Circuit Judges

The opinion of the court was delivered by: Alito, Circuit Judge

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Argued: September 15, 1998

(Opinion Filed: December 23, 1998)

OPINION OF THE COURT

Joseph A. Mondzelewski ("Mondzelewski") and his wife, Rebecca Mondzelewski, sued Pathmark Stores, Inc., and Supermarkets General Corp. (collectively, "Pathmark"), asserting claims under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA"), and Delaware law. The District Court granted summary judgment for Pathmark and declined to exercise supplemental jurisdiction on the state-law claims. On appeal, Mondzelewski argues that the District Court erred in holding that he is not disabled within the meaning of the ADA because he is not substantially limited in the major life activity of working. In addition, relying on Krouse v. American Sterilizer Co., 126 F.3d 494, 498 (3d Cir. 1997), which was handed down after the District Court ruled in this case, Mondzelewski contends that the District Court erred in rejecting his retaliation claim on the ground that he is not disabled. We reverse the District Court on both grounds and remand for further proceedings in accordance with this opinion.

I.

A. Viewed in the light most favorable to Mondzelewski, the relevant facts are as follows. Mondzelewski, a 55-year old with a sixth-grade education, has worked at Pathmark for 35 years, first as a bagger and then as a meat cutter. In March 1992, he injured his back lifting boxes of meat and was treated by Dr. Henry, Pathmark's doctor, who diagnosed him as having a herniated vertebral disc. After Mondzelewski spent a short time on disability, Dr. Henry released him to work but restricted him from lifting objects weighing more than 50 pounds and from carrying objects weighing more than 25 pounds. Mondzelewski informed Pathmark of his lifting restrictions.

In December 1993, Mondzelewski re-injured his back while lifting boxes of meat. After a few additional months on disability, Mondzelewski was again released to work with the same lifting restrictions, and he again provided a copy of the restrictions to Pathmark.

Mondzelewski claims that, after returning to work from his second injury, Pathmark retaliated against him for asserting his right under the ADA to obtain reasonable accommodation for a disability. See 42 U.S.C. § 12112(b)(5)(A). Mondzelewski first maintains that Pathmark unlawfully changed his work schedule. In Pathmark's meat department, workers were generally given schedules that allowed them free time in either the mornings or the afternoons. Some workers began their shifts between 6 and 8 a.m. and finished by 2 p.m., while others began at noon and worked until evening. In addition, workers generally were not required to work in the evening on weekends on a regular basis. Before his second injury, Mondzelewski's schedule generally followed this pattern, but after his second injury, Pathmark assigned him to work from 9:30 a.m. to 6:00 p.m. and consistently required him to work on Saturday evenings. According to Mondzelewski

and his fellow workers, these shifts were considered "punishment shifts." App. 122-125.

Mondzelewski also contends that he was given several retaliatory reprimands. First, Mondzelewski stated in his deposition that he received an oral warning for taking his work break during the last hour of his shift and that no other employees were given such warnings. Second, Mondzelewski was given a written notice of counseling because he had "left ground beef in [the] case" instead of making "frozen patties" or "consult[ing] management for direction." App. 138. Mondzelewski described this notice as one for grinding up too much meat, and he asserted that it was not unusual for employees to grind up more meat than could be sold. App. 81-82. Although this notice stated that it was for "counseling only," it also stated that "future violations will result in additional disciplinary action including separation." App. 138. Mondzelewski claims that this was the first written reprimand he had ever received during his 35-year career at Pathmark.

Last, within a week of the earlier written notice, Mondzelewski received another written notice for "insubordination" for refusing to lift a piece of meat. The meat was unmarked as to its weight, but Mondzelewski estimated it to weigh between 50 and 100 pounds. Because his co-worker refused to assist in lifting the meat, Mondzelewski called on a department manager for help. Instead of offering assistance, Mondzelewski claims the department manager wrote specific weights on this and other pieces of meat without actually weighing them. The department manager then allegedly told Mondzelewski to lift the meat stating: "You want to play those[expletive] games, well, I'm not. You want a write up. I'm telling you to do these chucks. You either do it or you go home." App. 45. Mondzelewski refused, and as a result, he was written up and suspended for the afternoon. Like his previous written notice, this notice stated that "future violations will result in additional disciplinary action including separation." App. 139. At a grievance meeting to discuss the matter, Mondzelewski was told, he asserts, that his restrictions were disrupting the work of his fellow employees.

Mondzelewski asserts that on one occasion his supervisor refused to give him time off for a medical test and told him he would have to reschedule it. He also stated that on some occasions the department manager refused his request for help in lifting meat and said: "Things are not that heavy. You can pick that up." App. 48.

Finally, Mondzelewski claims that Pathmark's managers and employees harassed and humiliated him. Mondzelewski was sent to a worker's compensation seminar at which a speaker said that some employees fake accidents. On another occasion, he states, he was not given a"butcher's white coat" and was told it was because he would not be around much longer. At another time, he was allegedly told that Pathmark should release him and find him a job pumping gas. Moreover, he stated that he was told: "We don't need a meat cutter. We don't need a wrapper, and we don't need you." App. 83. Further, Mondzelewski asserts that a manager made a derogatory and offensive hand gesture to his wife and him.

Mondzelewski claims that Pathmark's conduct caused him to suffer a mental breakdown and to miss work for several months. During this period, he filed a charge against Pathmark with the Equal Employment Opportunity Commission ("EEOC"). Later that year, he returned to work, but he was assigned to a different store in order to prevent any further acts of retaliation. At present, Mondzelewski continues to work at Pathmark, and according to him, the harassment has ended. However, he states that he continues to require medication and psychological counseling.

B. Mondzelewski filed a six-count complaint in the United States District Court for the District of Delaware. Count I alleged that Pathmark discriminated against him, in violation of 42 U.S.C. § 12112, by failing to provide reasonable accommodation for his lifting restrictions. Count II claimed that Pathmark violated 42 U.S.C. § 12203 by retaliating against him for requesting a reasonable accommodation when he returned to work after his second injury. Count III asserted that Pathmark violated a Delaware statute, 19 Del. Code § 2365, by retaliating against him for filing a worker's compensation claim.

Counts IV and V alleged common law torts, and Count VI asserted injury to the Mondzelewskis' marital relationship.

The District Court granted summary judgment for Pathmark on the federal claims. See Mondzelewski v. Pathmark Stores, Inc., 976 F. Supp. 277 (D. Del. 1997). The Court first held (id. at 279-81) that Mondzelewski was not disabled under the ADA because his back injury did not "substantially limit[ ]" him in the"major life activities" of "lifting" or "working." See 42 U.S.C.§ 12102(2)(A) (defining a "disability" as including "a physical . .. impairment that substantially limits one or more of the major life activities of such individual"). In an effort to show that he was substantially limited in the major life activity of working, Mondzelewski provided a report by Thomas Yohe, a vocational expert, which detailed Mondzelewski's job prospects. However, the District Court held that Yohe's report "fail[ed] to raise a material issue of fact on Mondzelewski's claim for several reasons," including its failure to "relate the effect of Mondzelewski's `medium-duty restrictions' on his ability to perform jobs in the economy" and its failure to "quantify the number or type of jobs he is precluded from performing due to those restrictions." Mondzelewski, 976 F. Supp. at 281. Most important, the Court stressed that Mondzelewski's "employability problems" were not caused by his impairment, but rather by his "personal characteristics [such as his limited education, training, and skills] that ha[d] nothing to do with his impairment." Id. Accordingly, the Court granted summary judgment for the defendants on Count I.

Turning to Mondzelewski's retaliation claim, the Court held that "Mondzelewski may not assert a claim for retaliation because he is not disabled." Mondzelewski, 976 F. Supp. at 282. The court went on to note precedent to the effect that a plaintiff in a Title VII retaliation case must show that he or she suffered what is often termed a materially "adverse employment action." See, e.g., Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997) (citing cases). The District Court then wrote:

"Despite such precedent, the Court does not hold that the acts alleged by Mondzelewski do not, as a matter of law, constitute ...


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