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