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VOLITIS v. MERCK & CO.

January 22, 2001

PATRICK VOLITIS, PLAINTIFF,
V.
MERCK & CO., INC., DEFENDANT.



The opinion of the court was delivered by: Anita B. Brody, District Judge.

MEMORANDUM AND ORDER

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 Room Operator.

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 Facts.

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) of 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 24.

LEGAL STANDARD

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 ...


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