replacement in 1989. Following the knee replacement, Volitis'
physician placed restrictions on his work activities. As of
January 20, 1995, these restrictions included: no walking over
one hour, no standing over two hours, and no sitting more than
four hours during an eight-hour shift, no squatting, no
crawling, no climbing, and no frequent lifting over twenty-five
pounds. These restrictions became somewhat less restrictive over
time. For instance, by August 1996, his work restrictions were
modified to: no walking for more than two hours, no standing for
more than three hours, and no sitting for more than six hours
during an eight hour shift, and no lifting over fifty pounds.
Volitis testified that his physician was taking a conservative
approach when establishing these work restrictions and that he
was actually capable of more than was indicated by his work
restrictions. See Exhibit A (Volitis Dep.) of Defendant's
Motion for Summary Judgement at 248, 250-51. He also testified
that, in his opinion, these restrictions did not restrict his
ability to work in any job at Merck without accommodation. See
id. at 261.
Merck was aware of and reviewed Volitis' work restrictions.
Volitis was referred to the Health Services Department at Merck
("Health Services") for assessments of his work restrictions and
for physical therapy. On one occasion Health Services confirmed
that Volitis had "impaired mobility" based upon a "review of
medical data." Exhibit 1 of Plaintiffs Facts. Merck also
repeatedly granted Volitis "inplant parking" privileges.
Exhibits 2, 4, 5, 6. Additional documentation from Health
Services, including Volitis' patient chart, lists Volitis'
specific work limitations. These limitations include, no lifting
over fifty pounds; no sitting more than six hours; no standing
more than three hours; no walking more than three hours; no
repetitive motion with right knee. See Exhibits 3, 4, 7. See
also, Exhibit 2 attached to Exhibit C of Plaintiffs Summary
Judgement Reply Brief. They are identical to or less restrictive
than the work restrictions from Volitis' outside physician. On
March 26, 1998, Volitis visited Health Services for "restriction
review and in plant parking." The "contact summary" on Volitis'
patient chart from this visit notes that Volitis stated that the
"previous restrictions were working well." Ex. 4 of Plaintiffs
On several occasions, beginning some time in 1995, Volitis
requested to be transferred to other positions at Merck by
bidding on internally posted jobs at the West Point
facility.*fn3 The positions that Volitis sought include
chemist, sterile operator*fn4, and grounds crew.
When an employee at Merck makes a bid for a position, the
supervisor or manager in charge of the position receives
information from Human Resources on the employee's education and
experience, including any medical restrictions. When the
employee has medical restrictions, it is company practice to
refer the employee to Health Services for a "Functional Capacity
Assessment", an assessment of his or her physical capability
with respect to the responsibilities of the job. Ex. C of
Plaintiffs Summary Judgement Reply Brief (Crawford Dep.) at 14.
See also, Ex. 10 of Plaintiffs Facts (Dep. of Joseph Pulli,
Senior Director of Labor Relations) at 32. Health Services then
makes a recommendation to the supervisor or manager in charge of
hiring for that position regarding whether or not the employee
is a "match" for the job. Health Services has the authority to
modify medical restrictions received from an outside physician,
specifically to remove or lift the restrictions. See Ex. 12
(Deposition of Anna Buinewicz, I.D., Medical Director at Merck)
Plaintiffs Facts at 33. Upon receiving Health Services'
recommendation, the supervisor or manager has the authority to
determine whether the company can make an accommodation for a
restricted employee and to make the final determination of
whether an employee is capable of performing the job.
Susan Crawford, former manager of the work site rehabilitation
services at Merck, performed a Functional Capacity Assessment of
Volitis for the positions of chemist and sterile operator. Prior
to conducting the assessments, Crawford researched the
requirements of each job, through work site visits and inquiries
with employees familiar with the job. See Ex. C of Plaintiffs
Summary Judgement Reply Brief at 17, 35. She determined that the
position of chemist required frequent stair climbing, between
thirty-four and sixty-seven percent of an eight hour shift,
considering allotted breaks. Based on her assessment of Volitis'
physical restrictions, she recommended that Volitis was not a
match for the chemist position. Volitis testified that he was
capable of climbing stairs at the frequency required for the
chemist job, but there is no evidence that Volitis challenged
Crawford's medical assessment. Crawford assessed that Volitis
was a match for the sterile operator position.
Volitis testified that Thomas McQuarrie, Human Resources and
Labor Relations Manager, told him that he was not capable of
performing the job of grounds crew. See Exhibit A (Volitis
Dep.) of Defendant's Motion for Summary Judgement at 428. At the
time that Volitis bid for the grounds crew position, the job
involved moving office furniture up and down steps. See id. at
429. Volitis also testified that he told the supervisor of the
grounds crew that he "wouldn't want to be in a situation of
running office furniture up and down steps all day." Id.
James Wood, former associate director of Human Resources and
Labor Relations, testified that he was contacted on more than
one occasion to assist in a determination of Volitis' physical
capability with respect to a job on which he bid. Wood was asked
for clarification of a medical restriction, which he then sought
from Health Services. See Ex. 11 of Plaintiffs Facts at 9-10.
Jeanne Stahl, Senior Director of Development and Production,
testified that Volitis was denied at least one job because of
his medical restrictions. See Ex. 14. of Plaintiffs Facts at
Summary judgment may be granted "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 a judgment as a matter of law." Fed.R.Civ.P.
56(c). The role of the trial court is to determine whether there
are material factual issues that merit a trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). In making that determination, the court must
give the nonmoving party the benefit of all reasonable
inferences that might be drawn from the underlying facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Sempier v.
Johnson and Higgins, 45 F.3d 724, 727 (3d Cir. 1995) (en banc).
Summary judgment is appropriate if the court finds that the
record "could not lead a rational trier of fact to find for the
nonmoving party, [and] there is no `genuine issue for trial.'"
Matsushita 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted).
Merck argues that it is entitled to summary judgement because
Volitis has failed to make out a prima facie case of
discrimination under the ADA or the PHRA. To present a prima
facie case under the ADA or the PHRA, the plaintiff must
establish that: 1) he is disabled; 2) he is qualified for the
particular job; and 3) he has suffered an adverse employment
action because of the disability. See Deane v. Pocono Medical
Center, 142 F.3d 138, 142 (3rd Cir. 1998); Kelly v. Drexel
Univ., 94 F.3d 102, 105 (3rd Cir. 1996) (the law on disability
discrimination under the PHRA is treated the same as under the
ADA). See also, Jones v. School District of Philadelphia,
198 F.3d 403, 409(3rd Cir. 1999) (confirming that the standards
under Pennsylvania and Federal law are the same for purposes of
determining summary judgement). Merck contends that Volitis
cannot establish the first prong of the prima facie case, that
he is "disabled" under the law.*fn5
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). Volitis does not claim that he has an
actual disability under the law. He claims that Merck has
regarded him as having a physical or mental impairment that
substantially limits one or more of his major life activities,
the major life activity of working.
In Volitis' first response to summary judgement, he argued
that he has an actual disability. At oral argument, Volitis
conceded that he is not actually disabled and that his work
restrictions from his outside physician do not rise to the level
of a disability. Also at oral argument, for the first time
Volitis mentioned that he thought he had a claim that Merck has
regarded him as disabled. In support of his "regarded as" claim,
he presented me with two recent district court opinions
explaining the "regarded as" claim. I then gave the defendant an
opportunity to respond by letter to the plaintiffs new theory.
Thereafter, I ordered the plaintiff to submit a list of the
facts that he is relying upon in support of his "regarded as"
claim. The plaintiff simply submitted a pile of documents and
depositions, but presented no statement of the facts to indicate
how Merck regarded Volitis as disabled. For that reason alone, I
will grant this motion for summary judgement.
To be certain that I am not dismissing some valid claim buried
in the pile of documents and depositions, I have carefully
reviewed everything submitted. As I will now explain, drawing
from the documents and depositions submitted, I can see no way
that Volitis can meet his burden under the "regarded as" claim.
The EEOC Regulations provide that an employee is "regarded as"
being disabled if he:
(1) [h]as a physical impairment that does not
substantially limit major life activities but is
treated by a covered entity as constituting such
(2) [h]as a physical or mental impairment that
substantially limits major life activities only as a
result of the attitudes of others toward such
(3) [h]as none of the impairments defined in
paragraph (h)(1) or (2) of this section but is
treated by a covered entity as having a substantially
29 C.F.R. § 1630.2(1) (1996). In the two most recent Third
Circuit opinions discussing the "regarded as" claim, Deane and
Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3rd Cir. 1999),
the Third Circuit begins the analysis of the "regarded as" claim
by setting forth this regulation.
After Deane and Pathmark were decided by the Third
Circuit, the United States Supreme Court interpreted this EEOC
regulation. In Sutton v. United Airlines, Inc., 527 U.S. 471,
489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Supreme Court
held that there are two ways in which individuals may fall
within the "regarded as" definition of disability: "(1) a
covered entity*fn6 mistakenly believes that a person has a
physical impairment that substantially limits one or more major
life activities, or (2) a covered entity mistakenly believes
that an actual, non-limiting impairment substantially limits one
or more major life activities. In both cases, it is necessary
that a covered entity entertain misperceptions about the
individual — it must believe either that one has a substantially
limiting impairment that one does not have or that one has a
substantially limiting impairment, when in fact, the impairment
is not so limiting." Sutton v. United Airlines, Inc.,
527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). In either
scenario, in order to sustain a "regarded as" claim, the
perceived condition must be substantially limiting under the
Volitis and Merck agree that Volitis has a physical impairment
as result of his knee injury. I assume, therefore, that Volitis'
"regarded as" claim is that Merck has incorrectly perceived
Volitis to be substantially limited in the major life activity
of working, when in fact he is not substantially limited in the
major life activity of working. In order to meet his burden
under this claim, Volitis must show that Merck's perception of
Volitis' limitations rises to the level of a substantially
limiting impairment under the law. Volitis concedes that the
limitations listed in the work restrictions from Volitis'
outside physician do not rise to the level of a substantially
limiting impairment under the law. Therefore, in order to show
that Merck's perception of Volitis' limitations rises to the
level of a substantial impairment under the law, Volitis must
show that Merck has perceived him to be more limited than is
indicated by the work restrictions from his outside
Volitis has presented no evidence that supports a conclusion
that Merck has perceived him to be more limited than is
indicated by the work restrictions from his outside physician.
It is undisputed that Merck had knowledge of the work
restrictions from Volitis' outside physician. The evidence shows
that Merck (through Health Services) also conducted an
independent evaluation of Volitis' physical impairment on
several occasions. However, there is no basis in the evidence
presented for concluding that Merck's independent evaluation
resulted in a perception that Volitis is more severely limited
than is indicated by Volitis' own physician's work restrictions.
The specific work limitations listed on Volitis' patient
charts from Health Services are identical to, or less
restrictive than, his physician's work restrictions.*fn8
Merck's internal documentation indicating that Volitis has
"impaired mobility" does not contradict his patient charts from
Health Services, because it does not define "impaired mobility".
Arguably, Volitis claims that because Merck has granted him
in-plant parking privileges that Merck has perceived him to be
more severely limited than is indicated by his physician's work
restrictions. This evidence shows that Merck is aware that
Volitis has physical limitations, but does not speak to Merck's
perception as to the severity of his limitations.*fn9 The
only reasonable conclusions that can be drawn from the evidence,
even as it is read most favorably to the plaintiff, is that
Merck considered the work restrictions from Volitis' outside
physician when conducting its own evaluation of Volitis and, if
anything, found him to be less limited.
Even if there remains a material dispute of fact regarding
whether Merck perceived Volitis to be more limited than is
indicated by his work restrictions, Volitis has produced
insufficient evidence to show that Merck's perception rises to
the level of a substantially limiting impairment under the law.
The Third Circuit has held that "[to] rise to the level of a
disability, an impairment must significantly restrict an
individual's major life activities. Impairments that result in
only mild limitations are not disabilities." Kelly v. Drexel
Univ., 94 F.3d 102, 107 (1996) (citations omitted). The EEOC
regulations provide that an individual is substantially limited
in a major life activity if he is "unable to perform a major
life activity that the average person in the general population
can perform" or is "significantly restricted as to the
condition, manner or duration under which [he] 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). "When referring to the major life activity of
working, the Equal Employment Opportunity Commission ("EEOC")
defines "substantially limits" as: "significantly restricted in
the ability to perform either a class of jobs or a broad range
of jobs in various classes as compared to the average person
having comparable training, skills and abilities."" Murphy v.
United Parcel Service, Inc., 527 U.S. 516, 523, 119 S.Ct. 2133,
144 L.Ed.2d 484 (1999) (quoting
29 C.F.R. § 1630.2(j)(3)(i) (1998)).
The Supreme Court has narrowly interpreted what is meant by
"significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes." In
Sutton, the Supreme Court held that "one must be precluded
from more than one type of job, a specialized job, or a
particular job of choice." Sutton v. United Airlines, Inc.,
527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). The
Court elaborated by stating that, "[i]f jobs utilizing an
individual's skills . . . are available, one is not precluded
from a substantial class of jobs. Similarly, if a host of
different types of jobs are available, one is not precluded from
a broad range of jobs." Id.
It is not clear from the standard set forth in Sutton what
evidence an employee must present to show that his employer has
regarded him as substantially limited in the major life activity
of working. The case law provides no affirmative definition of
"a class of jobs or a broad range of jobs in various classes."
In other words, if it is not sufficient to show that one has
been precluded from one particular job or one type of job, how
many jobs must the employee have been denied in order to
conclude that he has been precluded from a class of jobs or a
broad range of jobs in various classes? See Mitigating
and `Regarded As' Clause, 113 Harv.L.Rev. 337, 346 (1999)
(criticizing the Supreme Court's "overly narrow" approach to
defining the "regarded as" clause and identifying the need for
lower courts to develop a "functional middle ground for
analyzing `regarded as' claims concerning `working'").
Despite the lack of clarity as to what it means to be
precluded from "a class of jobs or a broad range of jobs in
various classes", Volitis has presented no evidence to show that
Merck perceived him to be substantially limited in the major
life activity of working under any conceivable standard. The
evidence presented by Volitis shows only that he was precluded
from two specific jobs — the positions of chemist and grounds
crew — because of his physical limitations. Volitis presently
remains in the position of process control room operator at
Merck. Based on Merck's independent evaluation of Volitis,
Volitis is also capable of performing the job of sterile
operator. There is no evidence that the jobs of grounds crew and
chemist are in a different class than the jobs of process
control room operator and sterile operator. The evidence
presented indicates merely that Merck perceives that Volitis is
capable of performing as many jobs as they perceive that he is
not capable of performing at Merck. It would be reaching far
beyond the definition of a "substantially limiting impairment"
under Sutton to say that this is sufficient to show that
Volitis has been precluded from a broad range of jobs as a
result of Merck's perception of his limitations.
Even if it remains a material dispute of fact as to whether
Merck's perception rises to the level of a substantially
limiting impairment under the law, Merck would still have a
defense to liability. In Pathmark, the Third Circuit explained
that an employer should not be held liable where the employer
does not act unreasonably, but merely makes a "mistake about the
extent of a particular employee's impairment  in the course of
an individualized determination." 177 F.3d at 193. The court
"If an employer regards a plaintiff as disabled based
on a mistake in an individualized determination of
the employee's actual condition rather than a belief
about the effects of the kind of impairment the
employer regarded the employee as having, then the
employer will have a defense if the employee
unreasonably failed to inform the employer of the
Id. Therefore, if the employer takes care to make an
individualized assessment of the employee's capabilities, the
burden shifts to the employee to correct the employer's mistake.
This "reasonability defense", the Third Circuit held,
"adequately protects employees" interests in not being
erroneously regarded as disabled. Id.
The evidence presented shows that Merck did not act
unreasonably when assessing Volitis' limitations and that
Volitis unreasonably failed to inform Merck of his actual
capabilities. Merck presents uncontroverted evidence that it is
company practice to refer employees with medical restrictions
who bid on jobs to Health Services for an individualized
assessment of the employee's ability to perform the tasks of the
particular job. The evidence shows that Volitis was referred to
Health Services for such assessments and that his capabilities
with respect to the jobs he sought were assessed. Furthermore,
the only evidence presented shows that these assessments were
made by Health Services with adequate knowledge of the demands
of each position. On the other hand, Volitis has submitted no
evidence that any supervisor or manager at Merck unreasonably
used their discretion to deny Volitis a position, contrary to a
positive assessment from Health Services. Volitis never
requested and, in fact, asserts that he does not need
accommodations to perform any of the jobs at Merck. In sum,
Merck engaged in exactly the kind of individualized assessment
of Volitis' physical limitations that the Third Circuit seeks to
encourage when considering him for the jobs on which he bid.
See Deane v. Pocono Medical Center, 142 F.3d 138 (3rd Cir.
1998); Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3rd Cir.
Moreover, there is no evidence that Volitis made any effort to
correct Merck's medical assessment of his physical limitations.
To the contrary, the evidence shows that Volitis was content
with the restrictions from Health Services and with the inplant
parking privilege. Volitis testified that he is in fact less
limited than is indicated by his outside physician's work
restrictions. But, even assuming that this is true, he presented
no evidence that he made Merck aware of his actual capabilities.
Volitis confirmed his limitation with respect to climbing
directly with the supervisor of grounds crew when discussing his
interest in that position.*fn10 Evidence that he contested
the denial of positions on which he bid based on his own
perception that he is capable of performing the job is not
sufficient to show that he made a reasonable effort to inform
Merck of his actual abilities. Thus, even if there remains a
dispute of fact as to whether Merck regards Volitis as
substantially impaired in the major life activity of working,
the facts of this case present precisely the circumstances in
which the Third Circuit intended to make available to the
defendant the "reasonability defense". Pathmark, 177 F.3d at
Volitis has not made out, nor can he make out a prima facie
case of discrimination based on a disability under the ADA or
the PHRA. The defendant's motion for summary judgement will be
granted. An appropriate order follows.
AND NOW, this day of January, 2001, it is ORDERED that
defendant's motion for summary judgement is GRANTED.