United States District Court, W.D. Pennsylvania
November 21, 2005.
BERNICE TAYLOR, Plaintiff,
WEST PENN ALLEGHENY GENERAL HOSPITAL, Defendant.
The opinion of the court was delivered by: DONETTA AMBROSE, District Judge
OPINION and ORDER OF COURT
Pending is Defendant's, Allegheny General Hospital's
("AGH"),*fn1 Motion for Summary Judgment. (Docket No. 8).
Plaintiff has filed a Response thereto. (Docket No. 11). AGH then
filed a Reply Brief. (Docket No. 12). Based on my opinion set
forth below, said Motion is granted.
Plaintiff, Bernice Taylor, was born on March 6, 1953. See,
Plaintiff's Depo., p. 7. Plaintiff was hired by AGH on November
8, 1971. Prior to her termination, Plaintiff had returned to work
following a back injury resulting in a herniated disc. She was working under a 10 pound lifting restriction. AGH
terminated Plaintiff's employment on June 19, 2003. At the time
of her discharge, Plaintiff was fifty (50) years old and working
as a unit secretary in AGH's Medical Ambulatory Care Clinic.
Plaintiff commenced this suit against Defendant asserting that
she was fired by Defendant in violation of the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq and the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et
seq. See, Complaint. Defendant has filed a Motion for Summary
Judgment. (Docket No. 14). Plaintiff has responded thereto.
(Docket No. 11). The issues are now ripe for review.
II. LEGAL ANALYSIS
A. LEGAL STANDARD OF REVIEW
Summary judgment may only 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 judgment as a matter of law. Fed.R.Civ.P.
56(c). Rule 56 mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against the party
who fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, this Court must
examine the facts in a light most favorable to the party opposing
the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d
Cir. 1990). The burden is on the moving party to demonstrate that
the evidence creates no genuine issue of material fact.
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.
1987). The dispute is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
fact is material when it might affect the outcome of the suit
under the governing law. Id. Where the non-moving party will
bear the burden of proof 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 non-movant's burden of proof at trial.
Celotex, 477 U.S. at 322. Once the moving party satisfies its
burden, the burden shifts to the nonmoving party, who must go
beyond its pleadings, and designate specific facts by the use of
affidavits, depositions, admissions, or answers to
interrogatories showing that there is a genuine issue for trial.
Id. at 324. Summary judgment must therefore be granted "against
a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." White
v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988),
quoting, Celotex, 477 U.S. at 322.
B. COUNT I: ADEA
Plaintiff alleges that she was fired by AGH because of her age,
in violation of the ADEA, 29 U.S.C. § 621, et seq. See,
Complaint, Count I. The ADEA provides, in relevant part that: "It
shall be unlawful for an employer . . . to fail or refuse to hire
or to discharge any individual . . . because of such individual's
age." 29 U.S.C.A. § 623(a)(1). The ADEA applies only to
"individuals who are at least 40 years of age."
29 U.S.C.A. § 631(a). There are two avenues for proving Plaintiff's ADEA claim:
(1) direct evidence under a "mixed motives" theory of liability,
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or (2)
circumstantial evidence of discrimination under a burden shifting
theory of liability. McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).*fn2 Both parties agree that this case is
proceeding under the latter burden shifting theory of liability.
To prevail under the burden shifting analysis, Plaintiff must
first establish a prima facie case of discrimination. To
establish a prima facie case for age discrimination, a
plaintiff must prove: (1) that she is a member of a protected
class (i.e. over 40), (2) that she was qualified for her
position, (3) that she suffered an adverse employment action, and
(4) that the position was ultimately filled by someone
substantially younger than the plaintiff to permit an inference
of age discrimination. O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312-13 (1996); Fuentes v. Perskie,
32 F.3d 759, 763 (3d Cir. 1994), citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Pivirotto v. Innovative
Systems, Inc., 191 F.3d 344, 353 (3d Cir. 1999). If the
Plaintiff is successful in establishing a prima facie case, the burden of production shifts to Defendant to articulate a
legitimate, nondiscriminatory reason for failing to hire him. If
Defendants meet this minimal burden, then Plaintiff must prove,
by a preponderance of the evidence, that the articulated reason
was mere pretext for discrimination. Keller v. Orix Credit
Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). Throughout
this analysis, however, the burden of proving intentional
discrimination rests with Plaintiff. Fuentes v. Perskie,
32 F.3d 759, 763 (3d Cir. 1994). In other words, the burden of
persuasion does not shift. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 509 (1993).
Defendant argues that summary judgment is appropriate because
Plaintiff cannot establish the fourth element of a prima facie
case for age discrimination. See, Defendant's Brief in Support,
p. 6. In opposition to the Motion for Summary Judgment,
Plaintiff, without citation to any case law, merely states
"Plaintiff specifically identifies similarly situated employees,
under the age of 40 that continually breached confidentiality out
in the open of the waiting area under Joan Crawford's direct
supervision who did not receive discipline from
Crawford."*fn3 Docket No. 11, p. 4. The treatment of
"similarly situated employees," however, applies in the context
of a reduction in force ADEA case, which is not the case here.
See, Anderson v. Consol. Rail Corp., 297 F.3d 242, 249-50 (3d
Cir. 2002). The element that Plaintiff must establish in a
termination case is that the position was ultimately filled by
someone substantially younger than the plaintiff to permit an
inference of age discrimination. O'Connor, 517 U.S. at 312-13. In this case,
Plaintiff did not engage in any discovery. As a result, there is
no evidence regarding Plaintiff's replacement, let alone her
replacement's age. Without such evidence, Plaintiff has failed to
meet the fourth prong of her prima facie case. Consequently,
summary judgment in favor of AGH regarding Plaintiff's ADEA claim
(Count I) is warranted.
C. COUNT II: ADA
Count II of Plaintiff's Complaint appears to assert a cause of
action for violation of the ADA. See, Complaint. "Congress
enacted the ADA in 1990 as an effort to prevent otherwise
qualified individuals from being discriminated against in
employment based on a disability." Gaul v. Lucent Technologies,
Inc., 134 F.3d 576, 579 (3d Cir. 1998); 29 C.F.R. § 1630.
Pursuant to the ADA, an employer is prohibited from
discriminating "against a qualified individual with a disability
because of the disability of such individual with regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment." 42 U.S.C. § 12112(a).
Discrimination encompasses not only "adverse actions motivated by
prejudice and fear of disabilities, but also includes failing to
make reasonable accommodations for a plaintiff's disabilities."
Taylor v. Phoenixville School District, 184 F.3d 296, 306 (3d
Cir. 1999). The ADA states that an employer discriminates against
an employee when he "does not mak[e] reasonable accommodation to
the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or
employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship. . . ."
42 U.S.C. § 12112(b)(5)(A).
1. Prima facie case under the ADA
In light of the standards imposed by the ADA, it is
well-settled that for a plaintiff to establish a prima facie
case of discrimination under the ADA, she must show:
1. She is a disabled person within the meaning of the
2. She is otherwise qualified to perform the
essential functions of the job, with or without
reasonable accommodation by the employer; and
3. She has suffered an otherwise adverse employment
decision as a result of discrimination.
Gaul, 134 F.3d at 580, citing Shiring v. Runyon, 90 F.3d 827
831 (3d Cir. 1996); Shaner v. Synthes (USA), 204 F.3d 494
(3d Cir. 2000); Deane v. Pocono Medical Center, 142 F.3d 138
142 (3d Cir. 1998). The failure to establish even one of the
elements of the prima facie case is grounds for summary
judgment. See, Gaul, 134 F.3d at 580.
a. Disabled within the meaning of the ADA
The first element Plaintiff must prove is that she is disabled
within the meaning of the ADA. A person is disabled within the
meaning of the ADA if she:
(A) has a physical or mental impairment that
substantially limits one or more of the major life
activities of such individual;
(B) has a record of such an impairment; or
(C) is regarded as having such an impairment.
See, 42 U.S.C. § 12102(2). If there is a genuine issue whether
Plaintiff meets any of the above definitions for disabled
persons, summary judgment is not appropriate. If, on the other hand, Plaintiff fails to meet any of the
definitions, Plaintiff is not covered by the ADA and summary
judgment will be appropriate. Id.
In Defendant's Motion for Summary Judgment, Defendant argues
that Plaintiff cannot meet any definition of a disabled person.
In opposition, Plaintiff focuses only on meeting the first
definition: having a physical impairment that substantially
limits one or more of her major life activities. See,
Plaintiff's Brief, p. 5-6. Consequently, if I find that Plaintiff
does not meet the first definition of a disabled person under the
ADA, then summary judgment is appropriate.
1) Physical or mental impairment that substantially limits one
or more of the major life activities
The first definition of disabled provides that an individual
will be considered disabled within the meaning of the ADA if she
has a physical or mental impairment that substantially limits one
or more of her major life activities. See,
42 U.S.C. § 12102(2)(A). Sole reliance on a physical or mental impairment to
establish a disability, however, is insufficient. Id.;
29 C.F.R. § 1630.2(h). As the statute provides, to constitute a
disability under the ADA, the impairment must "substantially
limit" one or more of an individual's "major life activities."
Id. "Major life activities" include "functions such as caring
for oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working."
29 C.F.R. § 1630.2(i); Bragdon v. Abbott, 524 U.S. 624, 638-39 (1998).
Thus, Plaintiff cannot rely on the fact that she was physically
injured to qualify as a disabled person under the ADA. There must
be credible evidence that a major life activity, as listed above,
was substantially limited by her injury. Furthermore, there must
be evidence that the major life activity was "substantially limited." See, 42 U.S.C. § 12102(2)(A). An
activity is "substantially limited" if the party is:
(i) Unable to perform a major life activity that the
average person in the general population can perform;
(ii) Significantly restricted as to the condition,
manner or duration under which an individual can
perform a 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)(1); Kelly v. Drexel Univ., 94 F.3d 102
105 (3d Cir. 1996). "The following factors should be considered
in determining whether an individual is substantially limited in
a major life activity: (i) The nature and severity of the
impairment; (ii) The duration or expected duration of the
impairment; and (iii) 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).
Plaintiff's alleged impairment is a herniated disc. See,
Complaint, ¶ 43. Plaintiff asserts in her Brief that she is
substantially limited in the major life activities of sleeping,
caring for herself, and working. See, Brief in Opposition, p.
Plaintiff merely asserts, without citation to anything other
than her affidavit, that due to her herniated disc she has
"sleepless nights, pain and back spasms while sleeping." See,
Brief in Opposition, p. 5. She has provided no other evidence to
support her allegation that she is substantially limited in the
major life activity of sleeping. There is no indication that
Plaintiff's sleep disruption is severe, long term, or has a
permanent impact. Taylor, 177 F.3d at 185;
29 C.F.R. § 1630.2(j)(2). Thus, based on the lack of evidence, I find that there is no genuine issue of
fact that Plaintiff's major life activity of sleeping was not
substantially limiting under the ADA.
b) Caring for herself
In support of her allegation that her ability to care for
herself is substantially limited, Plaintiff makes a single
conclusory reference that her "back spasms from her herniated
disc impair her ability to care for herself. . . ." Simply put,
there is absolutely no evidence to support her allegation that
she is substantially limited in the major life activity of caring
for herself. There is no indication that Plaintiff's ability to
care for herself is severe, long term, or has a permanent impact.
Taylor, 177 F.3d at 185; 29 C.F.R. § 1630.2(j)(2). Thus, based
on the lack of evidence, I find that there is no genuine issue of
fact that Plaintiff's major life activity of caring for herself
was not substantially limiting under the ADA.
"Substantially limited" in the sense of working means, at a
minimum, that Plaintiff is "unable to work in a broad class of
jobs." Sutton, 527 U.S. at 491; see also, Tice v. Centre Area
Trans. Auth., 2001 WL 410103, No. 00-1753, *5 (3d Cir. April 23,
2001); 20 C.F.R. 1630.2(j)(3)(i). In other words, "[t]o be
substantially limited in the major life activity of working,
then, one must be precluded from more than one type of job, a
specialized job, or a particular job choice." Sutton,
527 U.S. at 492; see also Deane v. Pocono Med. Ctr., 142 F.3d 138, 144
n. 7 (3d Cir. 1998). The Supreme Court further stated that, "[i]f jobs utilizing an individual's
skills (but perhaps not his or her unique talents) are available,
one is not precluded from a substantial class of jobs. Similarly,
if a host of different types of jobs are available, one is not
precluded from a broad range of jobs." Sutton, 527 U.S. at 492.
The factors to consider in determining whether an individual is
substantially limited in the major life activity of working
include: the geographical area; the number and types of jobs
utilizing similar training, knowledge, skills or abilities, from
which the individual is also disqualified." Id., citing,
29 C.F.R. §§ 1630.2(j)(3)(ii)(A), (B).
In this case, Plaintiff does not discuss, argue, or mention in
any fashion her preclusion from a substantial class of jobs. This
is fatal to her claim.
Plaintiff's only argument is that she is substantially limited
in her ability to work because of restriction from her doctor of
not being able to push, pull and lift over 10 pounds. See,
Brief in Opposition, p. 5. The Third Circuit has held, however,
that a 10 pound lifting restriction does not render a person
"sufficiently different from the general population such that he
is substantially limited in his ability to lift." See, Marinelli
v. City of Erie, Pennsylvania, 216 F.3d 354, 363-64 (3d Cir.
2000) and cases cited therein. Thus, Plaintiff's 10 pound lifting
restriction argument lacks merit.
In sum, viewing the evidence in the light most favorable to
Plaintiff, Plaintiff has failed to establish that there is a
genuine issue as to whether she meets the definition of a
disabled person under the ADA. Consequently, summary judgment in
favor of Defendant as to Plaintiff's ADA claim (Count II) is
appropriate. ORDER OF COURT
AND NOW, this 21st day of November, 2005, after careful
consideration of Defendant's Motion for Summary Judgment (Docket
No. 8) and the submissions of the parties, it is ordered said
Motion (Docket No. 8) is granted. Judgment is entered in favor of
Defendant and against Plaintiff. This case is to be marked
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