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
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
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
Center, 142 F.3d 138, 142 (3d Cir. 1998) (citing Gaul v.
Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998)).
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
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;
(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 general population can perform
that same major life activity.
29 C.F.R. § 1630.2(j)(1).