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September 15, 2000


The opinion of the court was delivered by: Joyner, District Judge.


This is an employment discrimination case brought by Plaintiff Willard T. Buskirk ("Buskirk") against his employer, Apollo Metals ("Apollo"). In his Complaint, Buskirk alleges that Apollo unlawfully terminated his employment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101-13 (1995) ("the ADA"), and the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (1991) ("the PHRA"). In addition to his ADA and PHRA claims, Buskirk also alleges a common law tortious interference with contractual relations claim arising out of his settlement negotiations with Apollo's workers' compensation carrier, the PMA Insurance Group ("PMA"). Apollo now seeks summary judgment with respect to all of Buskirk's claims.*fn1


Taken in the light most favorable to the plaintiff, the facts are as follows. Buskirk began working at Apollo in March 1981. Over the next several years, he held a variety of positions within the company. On February 8, 1996, Buskirk injured his back when he slipped on ice in Apollo's parking lot. At that time, Buskirk was working as a box maker, a position he had held for approximately one year prior to his injury.

Shortly after his accident, Buskirk underwent a medical examination that confirmed that he had strained his back. Although Buskirk was permitted to return to work at Apollo, the treating physician placed restrictions on the amount of weight Buskirk could lift and the duration of time he could perform certain tasks. Buskirk returned to work on February 12, 1996; however, because of his new medical restrictions, he switched from working as a box maker to performing less strenuous jobs such as buff building, sample cutting, and quality inspection. Despite the less strenuous work, Buskirk still experienced pain while working. As time progressed, Buskirk continued to seek medical treatment from several different physicians and chiropractors, each of whom occasionally modified Buskirk's working and lifting restrictions.*fn2

Buskirk continued working until June 27, 1996, at which point Dr. Kuhn, and later Dr. Pollack, recommended that Buskirk completely cease working to avoid further aggravating his injury. Following these recommendations, Buskirk stopped working and remained off work through September 1996. On September 30, 1996, Dr. Pollack approved Buskirk to return to work part-time with certain lifting restrictions. In accordance with Dr. Pollack's approval, Buskirk returned to work on October 1, 1996.

Upon returning to work in October, Buskirk was assigned to several "light-duty" jobs, including, as before, buff building and sample cutting. Over the next eight months, Buskirk continued on light duty, progressively increasing his work time over this period. In November 1996, while Buskirk was still working part-time, Drs. Kuhn and Pollack concluded that Buskirk would be permanently unable to return to his original box making position because of his injury. Buskirk continued on light duty through May 1997.

On May 29, 1997, Apollo discharged Buskirk from his job. Apollo stated in its termination letter that it could no longer provide Buskirk with light duty work and that, in view of Buskirk's permanent medical restrictions, it could not accommodate him "within the Box Maker position or any other vacant position." Several days later, Buskirk, through his union steward, filed a grievance with Apollo objecting to his termination. On June 10, 1997, Deborah Schnabel, Apollo's Human Resource Manager, responded to Buskirk's grievance by letter, in which she stated that Buskirk no longer would be considered terminated, but rather would be considered "on workers' compensation" as of May 31, 1997, pending further medical examination.

After leaving Apollo in May, Buskirk began collecting workers' compensation. Less than one month later, Drs. Kuhn and Pollack updated his status and reduced his work restrictions. As a result of his improving condition, Buskirk's union representatives presented Apollo with a non-exhaustive list of positions whose responsibilities were within Buskirk's current capabilities. Apollo did not place Buskirk in any of these — or any other — positions, contending that no position within Buskirk's capabilities was available at that time.

Buskirk remained out of work from Apollo until February 1999. During this period, in addition to collecting workers' compensation, Buskirk supplemented his income by working as a laborer for his brother's concrete business. He also successfully participated in work strengthening programs, which ultimately led his doctors to approve him for return to work at Apollo in December 1998. In January 1999, Buskirk met with Apollo representatives about his employment status. One month later, Buskirk bid on a pre-polisher position, which he received due to his seniority. Buskirk began working in that capacity on February 22, 1999.


I. Legal Standard

Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing the basis for its motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party meets this burden pursuant to Fed.R.Civ.P. 56(c), the burden shifts to the non-moving party to go beyond mere pleadings and to demonstrate, through affidavits, depositions or admissions, that a genuine issue exists for trial. Id. at 324, 106 S.Ct. 2548. In so doing, the non-moving party must raise "more than a mere scintilla of evidence in its favor" and may not merely rely on unsupported assertions, conclusory allegations, or mere suspicions. Willmore v. American Atelier, Inc., 72 F. Supp.2d 526, 527 (E.D.Pa. 1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

Put simply, the summary judgment standard requires the non-moving party to create a "sufficient disagreement to require submission [of the evidence] to a jury." Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505. When the non-moving party fails to create such disagreement, "[t]he moving party is `entitled to a judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

II. The ADA*fn3

The ADA prohibits discrimination against qualified people with disabilities. To create a prima facie case under the ADA, a plaintiff must "establish that he or she (1) has a disability (2) is a qualified individual and (3) has suffered an adverse employment action because of that disability." Deane v. Pocono Medical Center, 142 F.3d 138, 142 (3d Cir. 1998) (citing Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998)).

A. Disability

Turning to the first element of the prima facie case, Apollo contends that Buskirk is not disabled under the ADA. The ADA defines a disability as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)(1999).*fn4 Buskirk maintains that he is disabled under all three prongs of this definition. We examine his argument with respect to each prong individually.

1. Substantially limited in a major life activity

First, Buskirk claims that his injury is a physical impairment that substantially limits him in several major life activities. Neither party disputes that Buskirk's back injury constitutes a physical impairment.*fn5 To be considered a disability under the ADA, however, an impairment must also "substantially limit" a "major life activity." Penchishen v. Stroh Brewery Co., 932 F. Supp. 671, 674 (E.D.Pa. 1996).

Although neither "major life activities," nor "substantially limited" is defined by statute, the relevant regulations provide detailed guidance as to the meaning of these terms. According to the regulations, major life activities include, but are not limited to, "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). In general, they are "those basic activities that the average person in the general populations can perform with little or no difficulty." 29 C.F.R.App. § 1630.2(i) (1999). The regulations go on to state that "substantially limited" means:

(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the ...

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