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November 21, 2005.


The opinion of the court was delivered by: KIM GIBSON, District Judge


This case comes before the Court on Hanger Prosthetics and Orthotics, Inc., formerly known as Teufel Associates (hereinafter "Defendant"), Motion for Summary Judgment (Document No. 14) pursuant to Federal Rule of Civil Procedure 56. In consideration of the Defendant's Motion for Summary Judgment, Randall T. Kurten's (hereinafter "Plaintiff") Response to Motion for Summary Judgment (Document No. 20), and the record in the case sub judice, the Court shall deny the Defendant's Motion for Summary Judgment for the following reasons.


  Jurisdiction is proper in the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1331 based on federal question jurisdiction. Specifically, the Plaintiff has brought a claim under the Americans with Disabilities Act (hereinafter "ADA"), 42 U.S.C. § 12111, et seq. Jurisdiction is also invoked pursuant to 28 U.S.C. § 1343(4); and a notification of dismissal and right to sue letter was issued by the Equal Employment Opportunity Commission on or about December 22, 2003. (Document No. 1, Exhibit A). FACTUAL and PROCEDURAL BACKGROUND

  The Plaintiff was employed by the Defendant for approximately ten years from May 1993 until April 19, 2003. (Document No. 21). Initially hired by Teufel Associates in 1993, the Plaintiff performed the duties of an orthotist.*fn1 (Document Nos. 13, 22, Exhibit B). Some of his duties as an orthotist included "measuring patients for braces, fitting braces, and providing in-service instruction to nursing staffs, therapists and students." Id.

  When the Plaintiff was hired by Teufel Associates, the Plaintiff informed Robert Teufel (hereinafter "Teufel"), then owner and manager of the area practice offices of Teufel Associates, that he "had a non-job related disability which required reasonable work accommodations." (Document No. 21). Specifically, the Plaintiff told Teufel that on May 22, 1979, the Plaintiff was involved in a car accident and sustained head trauma injury. Id. The Plaintiff also confided that in June 1979, he was diagnosed with cognitive disabilities as a result of the closed head trauma injury. Id.

  The Plaintiff asserts that one of the manifestations of his cognitive disabilities is limited memory. (Document No. 21). For example, the Plaintiff states that when he is pressured, he does not remember anything. (Document No. 15, Exhibit A, p. 69). Some of this pressure arises when the Plaintiff observes "tons of patients waiting for [him]". Id. Consequently, as pressure mounts, the Plaintiff claims that his short term memory fails, and he does not remember "things that [he] should be picking up on." Id. at p. 70. The Plaintiff also states that he experiences gaps in his long term memory. (Document No. 15, Exhibit A, p. 70). For instance, the Plaintiff does not remember anything from his childhood. Id. Indeed, from week to week, the Plaintiff claims that he does not remember certain things. Id. at pp. 70-71. The Plaintiff also states that his daily life is affected by his cognitive disabilities in that he often has difficulty interacting with others because he is unable to recall recent or distant events during conversation. (Document No. 21). Nevertheless, the Plaintiff is able to perform the day to day functions of maintaining a household. (Document No. 15, Exhibit A, p. 51). For example, the Plaintiff cuts the grass, performs manual tasks around the house, and pays the bills. Id. Additionally, the Plaintiff states that despite his cognitive disability, he was able to graduate from high school and continue his education to become a certified orthotics technician. Id.

  In September of 1985, the Plaintiff received a diploma for completing 900 hours of schooling and testing in occupational proficiency. (Document Nos. 21, 15, Exhibit A, p. 55). In 1989, the Plaintiff passed "the test necessary to acquire a Certificate of Occupational Proficiency for North East Metro Technical Institute."*fn2 (Document No. 21). Later in January of 2000, the Plaintiff took a practical exam and written exam to become a registered technician. (Document No. 15, Exhibit A, p. 56).

  The Plaintiff states that during his employment while Teufel was his supervisor from 1993 through the summer of 2001, the Plaintiff communicated with Teufel about how his cognitive disability affected his ability to perform his job. (Document No. 15, Exhibit A, p. 79). Specifically, during conversations between the Plaintiff and Teufel, the Plaintiff stated that Teufel acknowledged the need for a tape player to help the Plaintiff detail his patient progress notes. Id. Consequently, although the Plaintiff and Teufel discussed these accommodation, "nothing ever got accomplished." Id.

  During Plaintiff's employment, while Teufel was Plaintiff's supervisor, two performance reviews indicate that Plaintiff's performance ratings were "Good" or "Very Good" on all criteria. (Document No. 21). Additionally, there is no evidence that Plaintiff was ever given a poor performance rating, or that he was unable to perform the duties of his position as an orthotist. Id.

  In March of 1998, Teufel sold Teufel Associates to Hanger Prosthetic and Orthotics, Inc. (hereinafter "Hanger"). (Document No. 13). From March 1998 until approximately the summer of 2001, Teufel remained as the area practice manager and supervisor for Hanger. Id. Then in 2001, Gary Reinhold (hereinafter "Reinhold") became the Plaintiff's supervisor. (Document No. 21). From the time the Plaintiff was hired by Mr. Teufel until 2001, when Mr. Teufel was replaced as area practice manager by Mr. Reinhold, the Plaintiff "was provided with some work accommodations." Id. For example, the Plaintiff was provided with an office assistant and a dictaphone. (Document No. 21). Specifically, the "office assistant would complete patient paperwork, would schedule patients, and would assist with patient notes." Id. The dictaphone also helped the Plaintiff to memorialize conversations with patients so that the Plaintiff did not forget scheduling matters. Id.

  When Reinhold assumed the supervisory role, the Plaintiff asserts that Plaintiff's accommodations were "no longer reasonably maintained." (Document No. 21). In particular, the Plaintiff claims that the "individuals acting as his office assistants were constantly changing." Id. From approximately March of 1998 until April of 2002, the Plaintiff was provided with six office assistants to ensure that paperwork, scheduling, and notes were properly preserved and organized. (Document No. 21). Although provided these accommodations, the Plaintiff claims that the short-lived employment of these six assistants did not meet the reasonable accommodation standards of the ADA. Id. More specifically, the Plaintiff notes the short employment histories of the six assistants as follows:
(1) [Assistant at] East Shore Office, left go approximately May 1999; (2) [Assistant at] West Shore office, left in December 2000; (3) [Assistant at] Elizabethtown Office, January to August 2001; (4) [Assistant at] West Shore office, left in December 2001; (5) [Assistant at] East Shore office, left in January 2002; and (6) [Assistant at] Elizabethtown Office, until April 2002.
(Document No. 21). Consequently, the Plaintiff alleges that the failure to provide a consistent assistant to handle his scheduling matters did not conform to Plaintiff's request for accommodation. Id

  The Plaintiff also alleges that his termination in April of 2002 was the result of Reinhold's discriminatory animus regarding the Plaintiff's cognitive disabilities. (Document No. 21). According to the Plaintiff, the performance evaluations provided by the Defendant as reasons for terminating the Plaintiff are the direct consequence of Defendant's failure to make reasonable accommodations for his disability. For example, the first memorandum of August 17, 2000 refers to Plaintiff's failure to deliver a brace at Chambersburg Hospital. Id. A second memorandum of August 23, 2001 refers to Plaintiff almost missing an "in service" at Carlisle Hospital. Id. These and other conclusions drawn by the Defendant "that Plaintiff must have forgotten something, displayed poor competence, or was incapable of performing the job", are allegedly false conclusions drawn by the Defendant and improperly acted upon by dismissing the Plaintiff from employment. Id. On February 2, 2004, the Plaintiff filed a Complaint against the Defendant, alleging that the Defendant denied equal employment opportunities to the Plaintiff because of the Plaintiff's disability in violation of 42 U.S.C.S. Section 12112(a). (Document No. 1).

  On February 1, 2005, the Defendant filed a Motion for Summary Judgment, asserting that the Plaintiff's claim should be denied as a matter of law for the following reasons: (1) Plaintiff has not established that he is "disabled" under the ADA; (2) Plaintiff was discharged for a legitimate, non-discriminatory reason; and (3) Plaintiff cannot prove pretext for a claim of intentional disability discrimination. (Document Nos. 14 & 17).


  Fed.R.Civ.P. 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "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."

  The mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. A dispute over those facts that might affect the outcome of the suit under the governing substantive law, i.e., the material facts, however, will preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, summary judgment is improper so long as the dispute over the material facts is genuine. Id. In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248-49. In summary, the inquiry under a Rule 56 motion is whether the evidence of record presents a genuine dispute regarding material facts so as to require submission of the matter to a jury for resolution of the factual dispute, or whether the evidence is so one-sided that the movant must prevail as a matter of law.

  To demonstrate entitlement to summary judgment, the moving party is not required to refute the essential elements of the cause of action. The moving party needs only to point out the absence or insufficiency of the evidence offered in support of those essential elements. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Once that burden has been met, the non-moving party must identify affirmative evidence of record that supports each essential element of his cause of action. A non-moving party may not successfully oppose a summary judgment motion by resting upon mere allegations or denials contained in the pleadings, or by simply reiterating those allegations or denials in an affidavit. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990). Rather, the non-moving party must offer specific evidence found in the record that contradicts the evidence presented by the movant and indicates that there remain relevant factual disputes that must be resolved at trial. See id. If the non-moving party does not respond in this manner, the court, when appropriate, shall grant summary judgment. Fed.R.Civ.P. 56(e).

  Accordingly, it is on this standard set forth above that the Court has reviewed Defendant's Motion for ...

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