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KOZLOWSKI v. PENN NATIONAL INSURANCE

May 17, 2005.

LINDA M. KOZLOWSKI, Plaintiff
v.
PENN NATIONAL INSURANCE and HOOVER REHABILITATION SERVICES, INC., Defendants.



The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge

MEMORANDUM

Presently before the court is a motion (Doc. 16) in which defendants, Penn National Insurance ("Penn National") and Hoover Rehabilitation Services, Inc. ("Hoover"), seek summary judgment on the claim of plaintiff, Linda M. Kozlowski ("Kozlowski"), of wrongful discharge under the American with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213.*fn1 Defendants argue that plaintiff cannot demonstrate that she is a "qualified individual" under the ADA. The court agrees, and will grant the motion.

I. Statement of Facts*fn2

  Kozlowski was employed by Penn National as an insurance underwriter from 1998 until 2003. Her position involved review of coverage applications, entry of this information into computer databases, and, after a promotion in 2002, supervision of other employees. Kozlowski suffered from various medical problems, including "degenerative joint disease" and "fibromyalgia,"*fn3 and she was forced to take leave for several brief periods in 2002 and 2003. However, she was able to return to her job full-time following treatment. (Doc. 17 ¶¶ 1, 3-17; Doc. 22 ¶¶ 1, 3-17).

  Her medical problems escalated in the latter part of 2003. On November 4, 2003, Kozlowski sought emergency treatment for immobility and severe pain in her legs. The next day, she forwarded to Penn National a physician's note indicating that she was "totally incapacitated" and "unable to work." She requested that she be granted paid medical leave from her position pursuant to the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654, and Penn National's "salary continuation program."*fn4 These requests were approved. However, Penn National notified Kozlowski that her leave under the FMLA would expire on December 8, 2003, and that the company would "be unable to provide [her] with continuing job protection" after that date. (Doc. 17 ¶¶ 18-29; Doc. 21, Tab B, Exs. 38, 41; Doc. 21, Tab F, Ex. 3; Doc. 22 ¶¶ 18-29).*fn5

  On December 5, 2003, Kozlowski delivered to Penn National records detailing her medical history for the past several years. The records indicated that her condition was worsening and did not show signs of improvement despite treatment. A representative of Penn National replied that these materials would be considered in assessing Kozlowski's continuing eligibility for salary benefits during her leave, but did not suggest that the information altered the expiration date of her leave under the FMLA. (Doc. 17 ¶¶ 26, 30; Doc. 21, Tab B, Exs. 44, 46, 48; Doc. 22 ¶¶ 26, 30).

  On December 9, 2003, Penn National issued a letter to Kozlowski stating that her leave under the FMLA had expired, that her former position as insurance underwriter had been filled, and that the company could no longer offer her "continuing job protection."*fn6 The next day, Kozlowski notified Penn National that her condition was "permanent." She did not suggest that a period of leave or any other accommodation would allow her to return to work. On December 19, 2003, Penn National notified Kozlowski that, because she was "unable to return to work," the company was terminating her employment. (Doc. 17 ¶¶ 31-37; Doc. 21, Tab B, Exs. 48-51; Doc. 22 ¶¶ 31-37).

  Soon thereafter, Kozlowski submitted an application for benefits to the United States Social Security Administration. The application, completed and executed by Kozlowski on December 29, 2003, stated that she "became unable to work because of [a] disabling condition on [November 3, 2003,]" and that she was "still disabled." She confirmed in supplemental documentation that her condition was "worsening" and that treatment had not led to any improvement. The agency found that Kozlowski was "totally disabled" and awarded her benefits effective as of November 3, 2003. (Doc. 17 ¶ 39; Doc. 20, Ex. B; Doc. 21, Tab B, Ex. 2).

  She commenced the case sub judice in April 2004. Defendants filed the instant motion for summary judgment one year later, in April 2005. (Docs. 1, 12, 16).

  II. Standard of Review

  "Summary judgment serves as a minimal but important hurdle for litigants to overcome before presenting a claim to a jury." Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004). Faced with such a motion, the adverse party must produce affirmative evidence, beyond the disputed allegations of the pleadings, in support of the claim. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Corneal v. Jackson Township, 313 F. Supp. 2d 457, 464 (M.D. Pa. 2003), aff'd, 94 Fed. Appx. 76 (3d Cir. 2004). "Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001) (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)). Only if this burden is met can the cause of action proceed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see FED. R. CIV. P. 56(c), (e).

  III. Discussion

  The ADA prohibits employment discrimination against a "qualified individual with a disability." 42 U.S.C. § 12112(a); see also Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d Cir. 2002). A "qualified individual" is one who, "with or without reasonable accommodation," can perform "the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(m). The burden is on the plaintiff to show that he or she is "qualified" for the position at issue under this definition. Buskirk, 307 F.3d at 168; Deane v. Pocono Med. Ctr., 142 F.3d 138, 146-49 (3d Cir. 1998) (en banc).

  Kozlowski cannot satisfy this prerequisite. She has admitted, in depositions and several letters, that she was and is "totally disabled" and that she "cannot work" as an insurance underwriter or in any other position.*fn7 Records from her physicians verify that she is "totally incapacitated" and is not "employable at even a sedentary level of employment."*fn8 Nothing in the summary judgment record suggests that she has any foreseeable chance of improvement in the future, or that any accommodation would allow her to work ...


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