The opinion of the court was delivered by: Anita B. Brody, District Judge.
Plaintiff Patrick Volitis ("Volitis") filed this action
against his employer, Merck & Company, Inc. ("Merck"), alleging
that he did not receive positions at Merck for which he bid
because of a disability, in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the
Pennsylvania Human Relations Act ("PHRA"), Pa. Stat. Ann. Tit.
43, § 951 et seq. Before me is Merck's motion for summary
judgement. On September 21, 2000, I heard oral argument on the
motion. I will now grant the motion.*fn1
RELEVANT FACTS IN EVIDENCE*fn2
Volitis was first hired by Merck at its facility in West
Point, Pennsylvania as a service worker on September 17, 1968.
During the course of his employment at Merck, Volitis has held a
number of different positions. Most recently, from approximately
1991 to the present, he has held the position of Process Control
In 1978, Volitis injured his knee while at work. Over
approximately the next twelve years, he underwent various
medical procedures for his knee, including knee
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 ...