United States District Court, M.D. Pennsylvania
October 26, 2005.
ROBERT CREASY, Plaintiff,
NOVELTY, INC., Defendant.
The opinion of the court was delivered by: JAMES McCLURE Jr., District Judge
On October 18, 2004, plaintiff Robert Creasy ("Creasy"),
commenced this action in the Middle District of Pennsylvania. The
three-count complaint alleged that Creasy's employment was
wrongfully terminated by defendant Novelty, Inc. (Novelty), in
violation of the Age Discrimination in Employment Act,
29 U.S.C. § 621 (ADEA), the Americans with Disabilities Act,
42 U.S.C. §§ 12101-12213 (ADA), and the Pennsylvania Human Relations Act
(PHRA), 43 Pa. C.S.A. §§ 951-63. Plaintiff alleges that he was
discharged from his job because of his age, fifty-five,*fn1
and because of a physical impairment, sleep apnea. On July 17, 2005, Creasy filed an amended complaint to clarify
his claims. In his amended complaint, Creasy continues to assert
causes of action under the ADEA, ADA, and the PHRA. On September
15, 2005, defendant filed the instant motion for summary
judgment. The motion is now fully briefed, and for the following
reasons the court will grant the motion in part.
I. LEGAL STANDARD
It is appropriate for a court to grant a motion for summary
judgment "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 a judgment as
a matter of law." Fed.R.Civ.P. 56(c).
"If the nonmoving party has the burden of persuasion at trial,
`the party moving for summary judgment may meet its burden by
showing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the
nonmovant's burden of proof at trial.'" Jalil v. Avdel Corp.,
873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer
Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
In evaluating a motion for summary judgment the court will draw
all reasonable inferences from the evidence in the record in
favor of the nonmoving party. Am. Flint Glass Workers Union v.
Beaumont Glass Co., 62 F.3d 574, (3d Cir. 1995). The nonmoving
party, however, cannot defeat a motion for summary judgment by
merely offering general denials, vague allegations, or conclusory
statements; rather the party must point to specific evidence in
the record that creates a genuine issue as to a material fact.
See Celotex, 477 U.S. at 32; Ridgewood Bd. of Educ. v. N.E.
ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).
II. FACTUAL BACKGROUND
A. Plaintiff's Failure to Comply with Local Rule 56.1
First, we note that plaintiff has not complied with Local Rule
56.1 which provides in relevant part: "[t]he papers opposing a
motion for summary judgment shall include a separate, short and
concise statement of the material facts, responding to the
numbered paragraphs set forth in the statement required in the
foregoing paragraph, as to which it is contended there exists a
genuine issue to be tried." L.R. 56.1.
Defendant has filed a separate statement of material facts with
citations to the record in support. (Rec. Doc. No. 32-2.) Under
Local Rule 56.1, "[a]ll material facts set forth in the statement required to be served
by the moving party will be deemed admitted unless controverted
by the statement required to be served by the opposing party."
L.R. 56.1. Therefore, the court could admit all the statements
provided by the defendants as unopposed. The plaintiff has
provided a concise statement of facts in his brief in opposition,
(Rec. Doc. No. 35, at 2-3); albeit, without citations to the
record. Therefore, although plaintiff has not complied with the
local rules, the court will not deem admitted statements made by
defendant that plaintiff has opposed, so long as plaintiff's
statements are supported by evidence in the record.
B. Statement of Relevant Facts
Plaintiff, Robert Creasy, is an adult individual residing in
Mifflinburg, Pennsylvania. Creasy was born on January 7, 1948.
Defendant, Novelty, Inc., is a foreign corporation authorized to
conduct business in the Commonwealth of Pennsylvania and has a
principal address at 351 West Muskegon Drive, Greenfield,
Creasy was an employee of Novelty from October 13, 1997 until
December 2, 2002. While Creasy was employed with Novelty he was a
Salesperson/Route Driver. As a Salesperson/Route Driver, Creasy's
duties included servicing approximately eighty convenience
stores. At the stores, Creasy was responsible for stocking shelves, organizing Novelty's products' displays,
keeping display areas neat, and removing outdated products.
Creasy's job required that he service twelve to fifteen stores
per day, and that he load and unload his company vehicle. Creasy,
however, did not have to adhere to any particular daily schedule,
and rarely had contact with his supervisors.
On November 12, 2002, Michael Evan Clark, then Creasy's
Regional Manager, received a complaint from Shawn Hardy, a
Regional Manager for Uni-Mart, that Creasy was not properly
servicing Uni-Mart stores in his region. According to Clark's
affidavit, Hardy specifically complained that Novelty's display
racks in his stores were dirty, cluttered, and poorly
merchandised. Upon receiving Hardy's complaint, Clark inspected
several of Creasy's stores with Hardy. These inspections
confirmed to Clark that the stores were not being properly
serviced. Clark then developed an action plan for Creasy that
contained specific requirements for each Uni-Mart store Creasy
serviced.*fn2 Clark contends that he was extremely concerned
about the Uni-Mart account because the company was Novelty's
principal customer in the area serviced by Creasy. After
approximately two weeks, Clark inspected Creasy's stores to
determine whether Creasy had followed Clark's action plan. At that time Clark
discovered that Creasy had not followed the plan and, therefore,
he directed Rob Zorger, then Creasy's District Manager, to
terminate Creasy's employment.
It was solely Clark's decision to terminate Creasy's
employment. Clark asserts that he decided to discharge Creasy
only because of the complaint from Hardy, and Creasy's failure
and/or refusal to follow the action plan he developed to correct
the situation. Creasy asserts that he was fired because of his
disability and his age.
Creasy has been diagnosed with sleep apnea, and as a result,
uses a CPAP machine and has taken prescription drugs. The sleep
apnea affects Creasy's ability to sleep normally. Under
deposition, Creasy testified that his sleep apnea had caused him
to fall asleep while driving the company vehicle. Although Clark
knew that Creasy had previously taken almost three weeks off for
medical reasons during August and September 2002, he asserts that
he was never informed that Creasy had any ongoing medical
problems that affected his ability to work on a daily basis.
Creasy's deposition testimony is consistent with Clark's
account; Creasy informed Clark, Zorger, and coworker Dave Naugel,
that he had sleep apnea, and that was why he needed to take the
time off in August and September 2002. There is no evidence that
Clark was ever informed by Creasy, or by anyone at Novelty, that Creasy had a medical condition that required an
accommodation, or that Creasy had requested an accommodation,
other than the time he took off in September 2002.*fn3
Creasy was fifty-four years old at the time of his discharge
from employment.*fn4 Approximately forty percent of
Novelty's salespersons/route drivers are more than forty years
old, and approximately five percent are more than fifty years
old. Creasy asserts that on the day his employment was
terminated, Zorger did not provide a reason for the termination.
Because of this, Creasy then sought an explanation from Clark.
Clark allegedly told Creasy that "he thought somebody younger
could do a better job." (Rec. Doc. No. 35, Ex. 1, at 77, 78.)
Since his termination from employment with Novelty, Creasy has
not looked for work. In February 2003, Creasy became unable to
work full time and went on social security disability. III. CREASY'S ADA CLAIM
The ADA seeks to protect individuals with disabilities from
discrimination by employers. See 42 U.S.C. § 12101(b). Because
Creasy relies on indirect evidence, he bears the initial burden
of establishing a prima facie case of disability discrimination
under the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), by a preponderance of the
evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506 (1993); Shellenberger v. Summit Bancorp, Inc.,
318 F.3d 183, 187 & n. 5 (3d Cir. 2003); Bearley v. Friendly Ice Cream
Corp., 322 F. Supp. 2d 563, 574 (M.D. Pa. 2004). To establish a
prima facie case under the ADA, Creasy must demonstrate that he:
(1) is disabled within the meaning of the ADA; (2) was qualified
to perform the essential functions of his job, with or without
accommodation; and (3) suffered an adverse employment decision
because of discrimination. See Williams v. Phila. Housing
Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004) (citing
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.
1999)). In order to make out a prima facie case, and survive the
instant motion for summary judgment, Creasy must demonstrate each
of those elements by a preponderance of the evidence. Walton v.
Mental Health Ass'n of Se. Pa., 661, 668 (3d Cir. 1999).
The ADA defines "disability" as: "(A) a physical or mental
impairment that substantially limits one or more major life activities of such
individual; (B) a record of such impairment; or (C) being
regarded as having such an impairment." 42 U.S.C. § 12102(2);
see 29 C.F.R. § 1630.2(g). Importantly, simply having an
impairment that does not substantially limit a major life
activity is not a disability, and therefore is not covered by the
ADA. See Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184, 195 (2002).
Major life activities are defined as "functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working."
29 C.F.R. § 1630.2(i). Major life activities are "those basic activities that
the average person can perform with little or no difficulty."
29 C.F.R. Pt. 1630, App. § 1630.2 (I).
A "substantially limiting" impairment is an impairment that
renders an employee "unable to perform a major life activity that
the average person in the general population can perform," or
that significantly restricts the employee as to "the condition,
manner or duration under which an individual 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); see Toyota, 534 U.S. at 195-96. Pertinent
factors for the court to consider include: "the nature and
severity of the impairment; the duration or expected duration of the impairment;
and the permanent or long-term impact, or the expected permanent
or long-term impact of or resulting from the impairment."
29 C.F.R. §§ 1630.2(j)(2)(i)-(iii); see Toyota, 534 U.S. at 196.
Defendant argues that: (1) Creasy does not have a disability
under the ADA; (2) sleep apnea is not a disability under the ADA;
(3) Creasy failed to request an accommodation and engage in an
interactive process; (4) Creasy did not perform his job
satisfactorily; and (5) Creasy was not treated differently than
other employees. Plaintiff contends that: (1) sleep apnea is a
disability under the ADA; and (2) Creasy did request an
accommodation, i.e., his three-week vacation, and he was fired
upon his return to work.
First, we note that this is plaintiff's second amended
complaint. The court has already clarified to the parties, by
order dated July 6, 2005 (Rec. Doc. No. 27), what was required of
plaintiff to establish a prima facie case of discrimination. In
our earlier order, we noted that Creasy's first amended complaint
failed to state a legally sufficient claim, particularly as to
the first two elements of his prima facie case, i.e., that
Creasy was disabled within the meaning of the ADA and was
qualified to perform the essential functions of his job, with or
without accommodation. (Rec. Doc. No. 27, at 5-6.) To address
these deficiencies, plaintiff's second amended complaint circuitously states that
Creasy's sleep apnea substantially impaired him in the major life
activity of "sleeping." (Rec. Doc. No. 28, at 2, ¶ 15.) The
second amended complaint also states that Creasy was capable of
performing the essential functions of his job with reasonable
As we noted in our prior order, a diagnosis of sleep apnea
alone is not enough to be a disability under the ADA. See
Toyota, 534 U.S. at 195 ("Merely having an impairment does not
make one disabled.") Creasy must demonstrate, with admissible
evidence, that his sleep apnea substantially impairs a major life
Numerous courts of appeals have found sleep to be a major life
activity. Colwell v. Suffolk County Police Dep't, 158 F.3d 635,
644 (2d Cir. 1998); E.E.O.C. v. Sara Lee Corp., 237 F.3d 349,
352 (4th Cir. 2001); Swanson v. Univ. of Cincinnati,
268 F.3d 307, 316 (6th Cir. 2001); Heisler v. Metro. Council,
339 F.3d 622, 628 (8th Cir. 2003); McAlindin v. County of San Diego,
192 F.3d 1226, 1234-35 (9th Cir. 1999); Steele v. Thiokol Corp.,
241 F.3d 1248, 1253 (10th Cir. 2001); Pack v. Kmart Corp.,
166 F.3d 1300, 1305 (10th Cir. 1999); see also Rossi v. Alcoa, Inc., 129 Fed. Appx. 154, 158 (6th Cir. 2005);
Cartwright v. Lockheed Martin Util. Servs., Inc.,
40 Fed. Appx. 147, 153 (6th Cir. 2002); Boerst v. General Mills Operations,
Inc., 25 Fed. Appx. 403, 406 & n. 2 (6th Cir 2002). Relying on
the case law of these other circuits, district courts within our
circuit have applied the substantial impairment analysis to the
major life activity of sleeping. Peter v. Lincoln Technical
Inst., Inc., 255 F. Supp. 2d 417, 432-33 (E.D. Pa. 2002)
(applying substantial impairment analysis to determine whether
plaintiff suffering from sleep apnea was disabled under ADA);
Popko v. Pa. State Univ., 84 F. Supp. 2d 589, 593 (M.D. Pa.
2000) (Caputo, J.); Reese v. Am. Food Serv., 2000 WL 1470212,
*6 (E.D. Pa. Sep. 29, 2000) (Waldman, J.). We agree with the
approach these courts took, and therefore, will also apply a
substantial impairment analysis to Creasy's case.
"The question of whether an individual is substantially limited
in a major life activity is a question of fact." Williams,
380 F.3d at 763. The Third Circuit follows the EEOC's interpretive
guidelines to determine if a plaintiff is substantially limited
in one or more major life activities; this approach necessitates
that we conduct a two-step analysis. Peter,
255 F. Supp. 2d at 431 (citing Mondzelewski v. Pathmark Stores, Inc.,
162 F.3d 778, 783 (3d Cir. 1998). Step one is to determine if the
plaintiff is substantially impaired in a major life activity
other than working. If the court finds that the plaintiff is substantially
impaired in the first step, then the inquiry ends. If not, then
the court turns to the second step of determining whether the
plaintiff is limited in the major life activity of working.
Mondzelewski, 162 F.3d at 783; see, e.g., Merit v. Se. Pa.
Transit Auth., 315 F. Supp. 2d 689, 698 (E.D. Pa. 2004) (Rufe,
First, Creasy's counsel has not provided to the court
sufficient evidence to indicate that Creasy's sleep was impaired.
Plaintiff's testimony from his deposition indicates that while he
was working with Novelty his sleep apnea made him tired all the
time, because he did not get his sleep at nighttime. (Rec. Doc.
No. 35, Ex. 1, at 88.) Other than vague generalities, plaintiff
has not introduced evidence about the extent of Creasy's sleep
impairment. The only area where plaintiff did provide specifics
was plaintiff's testimony regarding the oxygen levels in his
blood. Apparently, after taking three weeks off work, and using
his CPAP machine to sleep at night, in conjunction with other
medications, Creasy was able to restore the oxygen levels in his
blood to ninety-six percent, from a low of forty percent, and
improve his condition. A court must consider these sorts of
corrective measures when determining whether plaintiff is
substantially impaired. Sutton v. United Air Lines, Inc.,
527 U.S. 471, 488 (1999); Fiscus v. Wal-Mart Stores, Inc.,
385 F.3d 378, 385-86 (3d Cir. 2004). Plaintiff's testimony only suggests
to the court that if Creasy treats with medication he can improve his condition.
(See Rec. Doc. No. 35, Ex. 1, at 127-28 (Creasy's sleep apnea
was under control "[a]s long as [he] sleep[s] with a CPAP"))
See, e.g., Rossi, 129 Fed. Appx. at 158 ("Rossi testified
that he sleeps well when he takes his medication; therefore, he
is not substantially limited by his condition, which fails to
rise to the level of a disability.") With such a sparse
evidentiary record, we cannot find that plaintiff is
substantially impaired in the major life activity of sleeping.
See, e.g., Heisler, 339 F.3d at 628; Rossi,
129 Fed. Appx. at 158; Cartwright, 40 Fed. Appx. at 153 (6th Cir. 2002).
Now to the second step in our analysis, plaintiff's counsel
wholly fails to advance an argument that Creasy is substantially
impaired in the major life activity of working. In order to
advance an argument that he was substantially impaired from the
major life activity of working plaintiff's counsel would have had
to have submitted evidence of Creasy's work-related abilities and
qualifications, the jobs available in his geographic area, the
number of jobs utilizing his particular abilities and the number
of those jobs from which he is disqualified due to his
impairments (i.e., he is restricted from a class of jobs), or
the number of jobs that do not utilize his particular abilities
and the number of those jobs from which he is disqualified due to
his impairments (i.e., he is restricted from a broad range of
jobs in various classes). See Rufe, 315 F. Supp. 2d at 701 &
n. 29 (citing 29 C.F.R. § 1630.2(j)(3)(ii)(A)-(C)). Plaintiff has presented none of this
evidence. Creasy cannot establish a prima facie case of
discrimination under the ADA because he has not demonstrated to
the court that he is substantially impaired in any major life
activity. Therefore, the court will enter judgment in favor of
the defendant on Count I of the complaint and the corresponding
state disability claim alleged in Count III.
IV. CREASY'S ADEA CLAIM
"To prevail on an intentional age discrimination claim under
either the ADEA or the `analogous' provision of the PHRA, a
plaintiff must show that his or her age actually motivated or had
a determinative influence on the employer's adverse employment
decision." Fasold v. Justice, 409 F.3d 178, 183-84 (3d Cir.
2005) (internal quotations and citations omitted). A plaintiff
can maintain a claim of age discrimination on the basis of either
direct or indirect evidence. Id. at 184. The parties'
evidentiary burdens depend on the type of evidence plaintiff
relies on to bring his case. In the instant case, although not
articulated by counsel, plaintiff has presented direct evidence,
via testimony elucidated by defense counsel at Creasy's
deposition. Defendant's briefs, however, only address the merits
of plaintiff's prima facie ADEA case.*fn6 An ADEA claim based on direct
evidence of animus follows the evidentiary framework set forth in
Justice O'Connor's controlling opinion in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989). "Under Price Waterhouse, when an
ADEA plaintiff alleging unlawful termination presents `direct
evidence' that his age was a substantial factor in the decision
to fire him, the burden of persuasion on the issue of causation
shifts, and the employer must prove that it would have fired the
plaintiff even if it had not considered his age." Fakete v.
Aetna, Inc., 308 F.3d 335, 338 (3d. Cir. 2002) (citing Price
Waterhouse, 490 U.S. at 265-66 & Walden v. Georgia-Pacific Corp., 126 F.3d 506,
512-13 (3d Cir. 1997)).
Creasy introduced direct evidence that he was terminated from
his employment on the basis of his age. Creasy testified at his
deposition that on or about the December 2, 2002, the day of his
termination, Clark, the sole decision maker in terminating
Creasy,*fn7 allegedly told Creasy that "he thought somebody
younger could do a better job." (Rec. Doc. No. 35, Ex. 1, at 77,
Clark's statement, allegedly made on or about the day of
Creasy's employment termination, by the decision maker, cannot be
considered a stray remark, and constitutes direct evidence of
discrimination. See Price Waterhouse, 490 U.S. at 277
(noting that stray remarks, statements by nondecision makers, and
statements by decision makers unrelated to the decisional process
itself do not meet the standard of proof for direct evidence);
see e.g., Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506,
512-14 (3d Cir. 2004) (finding ADEA plaintiff produced direct
evidence of discrimination); Fakete, 308 F.3d 338-40 (same).
Clark's alleged statement, made while in the scope of his
employment as Novelty's regional director, would be admissible at
trial as nonhearsay under Fed.R.Evid. 801(d)(2)(D).
In order to dispute plaintiff's claims, defendant has come
forward with the affidavits from Clark, and Novelty's Human
Resources Director, Victoria L. Ferguson. In Clark's affidavit he
states: "At the time of Creasy's termination, I was not aware of
his age, and neither his age nor his medical condition played any
part in my decision to terminate him." (Rec. Doc. No. 33, Ex. 3,
at 3, ¶ 14.) Clark's affidavit addresses how Creasy was allegedly
not meeting his employer's expectations, and Ferguson asserts
that the documentation in Creasy's personnel file indicates that
Creasy was terminated solely for poor performance.*fn8
Ferguson also states that approximately forty-percent (40%) of
Novelty's salespersons/route drivers are more than forty (40)
years old, and approximately five-percent (5%) are more than
fifty (50) years old, and that to her knowledge Novelty has never
had a claim of age discrimination. Neither affidavit addresses
Clark's alleged statement to Creasy.
This information does not help defendant meet its high burden
in order to succeed on its motion for summary judgment. Defendant
has to leave no doubt to a rational finder of fact that it would
have fired Creasy, even if it had not considered his age. See
Glanzman, 391 F.3d at 514. Although defendant contends that Creasy's work was inadequate, it has not introduced into the
record any contemporaneous documentation of Creasy's poor
performance, nor has defendant included a copy of Clark's plan to
improve Creasy's work. Under Price Waterhouse, there is a
genuine issue of material fact as to whether defendant would have
fired Creasy even if it had not considered his age. Therefore, a
date for trial will be set as to plaintiff's ADEA claim and his
corresponding PHRA claim.
V. CREASY'S PHRA CLAIMS
The Pennsylvania Human Relations Act forbids "any person,
employer, employment agency, labor organization, or employee, to
aid, abet, incite, compel, or coerce the doing of any act
declared by this section to be an unlawful discriminatory
practice." 43 Pa. C.S.A. § 955(e). Courts interpret the PHRA's
provisions identically with the corresponding provisions of the
ADA and ADEA. Kautz, 412 F.3d at 466 n. 1; Rinehimer v.
Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002) (citing Kelly
v. Drexel University, 94 F.3d 102, 106 (3d. Cir. 1996));
Buskirk v. Apollo Metals, 307 F.3d 160, 166 n. 1 (3d Cir.
2002). Therefore, because we find that defendant is entitled to
summary judgment on plaintiff's ADA claim, Creasy's PHRA claim on
the basis of a disability fails. Under the same reasoning that
his PHRA claim for disability fails, his claim for age
discrimination survives the instant motion.
VI. MITIGATION OF DAMAGES
Finally, Novelty asks the court to enter summary judgment
limiting the potential scope of Creasy's damages for lost
earnings because he has failed to mitigate damages by not looking
for future work, was partially disabled, and in February 2003,
three months after his separation from Novelty, became completely
disabled, and began collecting social security disability.
Plaintiff contends that had he not been discharged, he would have
continued to work for Novelty as long as he could have. This does
not address whether he attempted to mitigate his damages, and it
is clear that Creasy did not seek employment since his
termination from employment in December 2002. Therefore, to the
extent any damages would have been awarded for lost earnings,
Creasy will be precluded from recovering beyond the date of
February 2003. We agree with plaintiff, however, that Creasy's
military related disability is not relevant to offsetting any
For the above-stated reasons, by accompanying order we will
grant defendant's motion for summary judgment as to plaintiff's
claim under the ADA and his corresponding PHRA disability claim.
Plaintiff's ADEA claim, and his corresponding PHRA age claim,
however, will survive the motion for summary judgment. Plaintiff's damages for lost and future earnings shall
be capped to reflect his lost earnings from December 2002 until
February 2003, the time he became totally disabled. ORDER
For the reasons set forth in the accompanying memorandum, NOW,
THEREFORE, IT IS HEREBY ORDERED THAT:
1. Defendant's motion for summary judgment is granted
in part. (Rec. Doc. No. 32.)
2. Plaintiff's ADEA claim and the corresponding claim
under the PHRA (Counts II and III-age), survive the
motion for summary judgment.
3. Judgment is entered in favor of the defendant
Novelty Inc., and against plaintiff Robert Creasy, as
to the ADA claim (Count I), and the corresponding
state disability claim (Count III-disability). 4. Plaintiff's damages for future earnings shall be
limited to those lost earnings from December 2002
until February 2003, the time that plaintiff became
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