The opinion of the court was delivered by: Caputo, District Judge.
This case is before the Court on remand from the Court of
Appeals. In relevant synopsis, the procedural history of the case
is as follows. On January 14, 1997, plaintiff, Jane T. Popko,
filed a complaint alleging unlawful discrimination and
retaliation action under the American with Disabilities Act
(ADA), 42 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 24, 1997, defendants
Pennsylvania State University, the Milton S. Hershey Medical
Center, James Adams, Tasna Kitch, and Suzanne Schick moved for
summary judgment pursuant to Federal Rule of Civil Procedure 56.
On February 27, 1998, this Court granted the defendants' motion
for summary judgment. On March 12, 1998, plaintiff filed a motion
for reconsideration of the Court's February 27, 1998 Order. The
motion alleged that the Court had erred in holding that plaintiff
was not disabled and in not reaching the issue of retaliation. In
a Memorandum and Order, filed June 16, 1998, the Court reaffirmed
its determination that the plaintiff was not disabled and also
reversed its prior decision not to reach the retaliation issue.
In considering the merits, however, the Court granted defendants
summary judgment on the retaliation issue as well. Plaintiff
filed a notice of appeal on July 9, 1998. On October 4, 1999 the
Court of Appeals issued an Order, remanding the case to this
Court "for further consideration of the claim based on epilepsy
in light of Sutton v. United Airlines, Inc., 527 U.S. 471, 119
S.Ct. 2139, 144 L.Ed.2d 450 (1999), Albertsons Inc. v.
Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 144 L.Ed.2d 518
(1999), Murphy v. United Parcel Service, Inc., 527 U.S. 516,
119 S.Ct. 2133, 144 L.Ed.2d 484 (1999), and Taylor v.
Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999). The
court does not express any opinion as to the proper resolution of
the issue. The district court may determine what procedures are
appropriate for its consideration, and the decision should be
returned to this panel for final determination of the appeal."
Popko v. Pennsylvania State Univ., No. 98-7403, slip op. at 2
(3d Cir. Oct. 4, 1999).
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:
[t]he permanent limitations on my life activities due
to my medical conditions/disabilities are:
a) Right brachial plexopathy — . . .
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 permanently 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 Aff., Pl.'s App. in Opp. to Defs' Summ.J.Mot., Ex. 6, ¶
4.) Although limited, plaintiff can bike, garden, sail, and
drive. (Def.'s App., Ex. 32 at 4-19, 42-44). In addition,
plaintiff's disorder does not limit her from working a standard
day time shift.
A. Brief Review of the Relevant Appellate Decisions
The Court of Appeals has directed the Court to reexamine
plaintiff's claim based on epilepsy in light of the recent
appellate decisions in Sutton, Albertsons Inc., Murphy and
Taylor. A brief review of these cases is therefore in order.
The petitioners in this case were severely myopic twin sisters,
having visual acuity of 20/200 or worse, but with corrective
measures, both women functioned identically to individuals
without similar impairments. Sutton v. United Airlines, Inc.,
527 U.S. 471, 119 S.Ct. 2139, 2143, 144 L.Ed.2d 450 (1999). The
sisters applied to respondent, a major commercial airline
carrier, for employment as commercial airline pilots, but were
rejected because they failed to meet the airline's minimum
requirement of uncorrected visual acuity of 20/100 or better.
Id. The women brought suit under the ADA, but their action was
dismissed for failure to state a claim upon which relief can be
granted. Id. at 2144. The Tenth Circuit affirmed. Id. On
appeal, the Supreme Court concluded that the complaint was
properly dismissed. Id. at 2143. In reaching this result, the
Court held that "the determination of whether an individual is
disabled should be made with reference to measures that mitigate
the individual's impairment, including, in this ...