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POPKO v. PENNSYLVANIA STATE UNIVERSITY

February 22, 2000

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, District Judge.

MEMORANDUM

I INTRODUCTION

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).

II BACKGROUND

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.

III DISCUSSION

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.

1. Sutton

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 ...


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