averments of plaintiff and his wife to the contrary are insufficient to
survive defendant's motion for summary judgment.
Plaintiff alternatively argues that, even if he is not actually
disabled, defendant regarded him as disabled in violation of the
Rehabilitation Act. To prevail under a regarded as" theory, however,
plaintiff must demonstrate either that (1) despite having no impairment at
all, defendant erroneously believes he has an impairment that
substantially limits a major life activity or (2) he has a nonlimiting
impairment that the employer mistakenly believes substantially limits a
major life activity. See Tice v. Centre Area Trans. Auth., 247 F.3d 506,
514 (3d Cir. 2001). In either case, it is not sufficient to show that
defendant regarded plaintiff as having an impairment; rather, defendant
must have regarded plaintiff as having a substantially limiting
impairment. See Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 (3d Cir.
1998); Tice, 247 F.3d at 514.
Here, plaintiff has failed to meet this burden. With respect to
plaintiff's speech impediment, plaintiff's supervisor, Mr. Pavasko,
testified that, although he noticed a slight speech impediment, he did
not experience any noticeable difficulty in understanding plaintiff's
speech. Mr. Ninehouser also testified that he had no noticeable difficulty
in understanding plaintiff's speech. Moreover, it is undisputed that
defendant had no problems with plaintiff's work performance. Similarly,
there is no evidence of record that defendant regarded plaintiff as
having a substantially limiting learning disability. Consideration of
plaintiff's allegation that co-workers made comments to him about his
speech and about being slow does not change this conclusion. Even if
true, these comments at most show that defendant regarded plaintiff as
having an impairment. They in no way indicate that defendant viewed
plaintiff as having an impairment that substantially limited a major life
activity. See Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996).
Finally, the undisputed facts establish that plaintiff did not regard
plaintiff as having a disabling back injury at the time of the adverse
employment actions at issue. Importantly, plaintiff admits that after
sustaining the injury, he told Mr. Pavasko that he was not badly hurt.
Plaintiff likewise does not contend that Mr. Ninehouser knew of his back
injury. If anything, this evidence shows that defendant regarded
plaintiff as not disabled.
Plaintiff has failed to place on the record evidence by which a jury
acting reasonably could conclude that he suffered from a disability
within the meaning of the Rehabilitation Act. Defendant's motion for
summary judgment is granted. The appropriate order follows.
AND NOW, this 28th day of February, 2002, upon consideration of
defendant's motion for summary judgment, IT IS HEREBY ORDERED that the
motion is GRANTED. The Clerk of Courts is ordered to mark this case
*fn2 As a threshold matter, plaintiff argues that the court should not
consider any of the transcript of plaintiff's deposition taken by
defendant. This contention is without merit. First, plaintiff maintains
that the length of his deposition exceeded the limits set forth in the
Federal Rules of Civil Procedure. Plaintiff's counsel, however, never
raised this issue at any time during the deposition itself and,
therefore, this objection is waived. Second, plaintiff complains that he
was "quite easily misled into misstating his testimony." This position
ignores that fact that defendant provided plaintiff with the typical
instructions at the beginning of the deposition, including an instruction
that if he did not understand a question, he should so state. Plaintiff
also ignores the role of his counsel at the deposition to object on the
record or to take any other step permitted by the Federal Rules in order
to protect and serve her client. Plaintiff points to no such objections
in his opposition. Third, plaintiff argues that he was denied an
"adequate opportunity to correct the transcripts." This contention is
likewise without merit. Plaintiff made the choice not to purchase the
transcript. Although plaintiff contends he could not afford to purchase
the transcript, the court reporting service offered plaintiff ample
alternatives to purchasing the transcript such as reviewing the
transcript in the court reporter's offices. Interestingly, plaintiff was
able to afford to have his counsel subsequently take his own deposition.
The court also notes that plaintiff cites to the deposition testimony
taken by defendant when he feels it supports his arguments. Plaintiff
cannot have it both ways.
*fn3 Plaintiff also must show he had a disability to proceed under his
hostile work environment theory. See Walton v. Mental Health Ass'n of
Southeastern Pa., 168 F.3d 661, 667 (3d Cir. 1999).
*fn4 Although Toyota Motor Manufacturing, Kentucky, Inc. was a case
interpreting the Americans with Disabilities Act ("ADA"), "[t]he elements
of a claim under § 504(a) of the Rehabilitation Act are very similar
to the elements of a claim under the [ADA]." Donahue v. Consol. Rail
Corp., 224 F.3d 226, 229 (3d Cir. 2000); see also 29 U.S.C. § 794 (d)
("The standards used to determine whether this section has been violated
in a complaint alleging employment discrimination under this section
shall be the standards applied under Title I of the Americans with
Disabilities Act of 1990 (42 U.S.C. § 12111 et seq.) and the
provisions of sections 501 through 504, and 510, of the Americans with
Disabilities Act of 1990 (42 U.S.C. § 12201 to 12204 and 12210), as
such sections relate to employment.").
*fn5 The necessity of medical testimony "turns on the extent to which
the alleged impairment is within the comprehension of a jury that does
not possess a command of medical or otherwise scientific knowledge."
Marinelli v. City of Erie, 216 F.3d 354, 360 (3d Cir. 2000)
*fn6 The government argues that plaintiff's school records do not comply
with the requirements of Fed.R.Civ.P. 56(e) and, therefore, should
not be considered in support of plaintiff's position.
*fn7 The only medical "evidence" of his back injury plaintiff submitted
in support of his opposition to defendant's motion consists of two
one-page hospital records. Even if proper under Fed.R.Civ.P. 56(e),
these records do nothing to support plaintiff's position. Although the
first record indicates plaintiff was diagnosed with a disc herniation, it
in no way indicates whether or how this herniation impaired any of
plaintiff's activities. Moreover, the record indicates that plaintiff's
own physician questioned plaintiff's veracity. See Exhibit D to
Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("At
this point his clinical symptoms is [sic] not clinically correlated. The
patient claims to have numbness of left buttocks to the left lower leg but
the herniation is on the right side so I don't know whether the patient
is telling the truth or just has a secondary gain."). The second record
simply reports the undisputed fact that plaintiff underwent a therapeutic
lumbar epidural block in December, 1998. Again, the record nowhere
discusses any limitations on plaintiff's activities caused by his back