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Supinski v. Super Market Service Corp.

December 20, 2005


The opinion of the court was delivered by: Chief Judge Vanaskie


This is an employment discrimination action against Defendants Super Market Service Corporation ("SMS") and the Great Atlantic and Pacific Tea Company ("A & P") under the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101-12213. Plaintiff Valerie Supinski, who has sustained permanent nerve damage to her left forearm, essentially asserts two discrete claims: (1) Defendants failed to accommodate her disability by denying her request to transfer into a less demanding position than the warehouse "floater" job she had filled; and (2) Defendants retaliated against her after she requested the accommodation by failing to reinstate her to the floater position after a three-day absence from work.

Defendants have moved for summary judgment. Because the reassignment requested by Supinski would have violated the seniority provisions of a collective bargaining agreement, Defendants are entitled to judgment in their favor on her first theory of relief. Because Plaintiff has adduced sufficient evidence to support an inference that the failure to allow her to resume work as a "floater" was motivated by a retaliatory animus, Defendants are not entitled to summary judgment on the second theory of recovery. Therefore, Defendants' motion for summary judgment will be granted in part and denied in part.


SMS operates a warehouse and distribution center for supermarket products in Dunmore, Pennsylvania. (Defs.' Statement of Material Facts ("S.M.F."), Dkt. Entry 39 ¶ 1.)*fn1 In 1994, Supinski began working for SMS inside the warehouse (Id. ¶ 2.) All employees in the warehouse are represented by Teamsters Local 229. (Id. ¶ 3.) Employment conditions are governed by a collective bargaining agreement between the Teamsters and SMS. (Id. ¶ 4.)

In May of 1996, Supinski became a full-time "floater" with union benefits. (Id. ¶ 6.) Typically, a floater's role is to cover the shift of an absent employee. (See App. to Defs.' Mot. Summ. J., Dkt. Entry 40, Tab I, Barone Dep., Vol. II, at 54.) This requires floaters to work a wide variety of jobs based on daily staffing needs in the warehouse. (Defs.' S.M.F., Dkt. Entry 39 ¶ 6.) According to Defendants, these jobs include acting as a hand jacker, selector, puller, sorter, or stocker.*fn2 (Id. ¶ 7.)

On July 18, 1998, Supinski was shot in the left arm while visiting Lehigh Gorge State Park. (Id. ¶ 8; App. to Defs.' Mot. Summ. J., Dkt. Entry 40, Tab B at 74.) The gunshot wound caused permanent radial nerve damage to her left arm. (Defs.' S.M.F., Dkt. Entry 39 ¶ 8.) As a result, Supinski claims that use of her left arm and hand is severely limited. (Ex. 28 to Supinski Dep., Vol. II, App. to Defs.' Mot. Summ. J., Dkt. Entry 40, Tab C.) She has difficulty performing any activity that requires the use of her left hand, including: personal care (bathing, dressing, any washing or grooming not reachable by her right hand such as caring for her right arm); cooking (handling pots and pans, opening containers, cutting); household activities (washing and drying dishes, vacuuming, cleaning clothes, shoveling snow); motherhood (freely exercising with or caring for her young son); and physical exercise (riding a bicycle, gripping a ball, swimming, weight lifting). (App. to Defs.' Mot. Summ. J., Dkt. Entry 40, Tab C, Supinski Dep., Vol. II, at 180-94.)

Plaintiff was unable to return to work for more than five (5) months following her injury. In December of 1998, Supinski requested her physician to allow her to return to work. (Ex. 16 to Pl.'s App., Dec. 11, 1998 Office Note of Dr. Schneider, Dkt. Entry 49.) In his record of a December 11, 1998 office visit, Dr. Schneider indicated that he gave Plaintiff a note to the effect that she should not work overtime. Although observing that she "did not want any work separates heavier totes which need to be specially packed. A "stocker" maintains even distribution of items in the storage area. (See App. to Defs.' Mot. Summ. J., Dkt. Entry 40, Tab E.) The physical demands of each job differ. For example, the hand jacker and sorter jobs require lifting and carrying more than 50 pounds; the selector job does not. (Id.) restrictions," Dr. Schneider was skeptical that Supinski would be able to perform all aspects of her job. (Id.)

In January 1999, Supinski returned to SMS as a floater. (Defs.' S.M.F., Dkt. Entry 39 ¶ 9.) The parties do not address her work performance upon her return to work, or whether she was limited in the types of jobs she could perform. Nor do they discuss whether she worked overtime, i.e., beyond eight hours. Plaintiff has presented a report of Dr. Schneider dated August 27, 1999, in which he notes that Plaintiff complained of considerable pain after using a hand jack. (Ex. 16 to Pl.'s App., Dkt Entry 49.) Dr. Schneider's report included a handwritten note stating that Supinski was not to lift over 50 pounds, use a hand jack or work overtime. The note also indicated that the restrictions were permanent.

On September 14, 1999, Supinski was successful on a temporary job bid as a "Selector" on the housewares line. (Defs.' S.M.F., Dkt. Entry 39 ¶ 11.) As a selector on the housewares line, Supinski would select individual items from a flow rack, place a label on the item, and place the item in a tote. After the tote was full, she would place the tote on a conveyor line. (Id.) The work did not require use of a hand jack or lifting and carrying more than 50 pounds, and was thus consistent with Dr. Schneider's limitations. The parties do not address her performance during this period or whether she worked overtime.

In the Spring of 2000, Supinski contracted bronchitis that necessitated hospitalization. She missed work from April 9, 2000 to June 26, 2000. (Id. ¶ 12; App. to Defs.' Mot. Summ. J., Dkt. Entry 40, Tab C, Supinski Dep., Vol. II, at 33.) In accordance with the collective bargaining agreement, Supinski lost her selector position while she was out on medical leave. (Defs.' S.M.F., Dkt. Entry 39, ¶ 15.)

In anticipation of her return to work, Supinski obtained a note from Doctor Alocci reiterating the restrictions that she not work more than eight hours per day, lift more than 50 pounds, or use a hand jack. SMS received this note on June 22, 2000, and Plaintiff returned to work as a floater on June 26, 2000. (Id. ¶ 17.)

While at work on June 26, 2000, Supinski attended a meeting at which employees were informed of the implementation of a third shift commencing July 17, 2000. (Id. ¶ 18.) This new shift called for four consecutive ten-hour nights. The collective bargaining agreement between SMS and the Teamsters that went into effect in March of 2000 gave SMS the authority to create such shifts. (Id. ¶ 19.)

Supinski was told on June 26, 2000, that she would be assigned to this new, ten-hour shift as a floater due to her relatively low seniority. (Id. ¶ 22.) Supinski objected to the assignment, referring to her physician's instructions restricting her from working more than eight hours a day, operating a hand jack, or lifting more than fifty pounds due to the nerve damage to her left arm. (Id. ¶ 25.)

It appears that on this date Supinski was given a notice pertaining to mandatory overtime. This notice suggested that qualified persons with a disability could be excused from mandatory overtime provided appropriate documentation were submitted. (App. to Defs.' Mot. Summ. J., Dkt. Entry 40, Tab C, Supinski Dep., Vol. II, Ex. 8.) Dr. Alocci made a handwritten notation on this notice, inquiring as to whether there were any specific forms to confirm Supinski's inability to work mandatory overtime. (Ex. 10 to Pl.'s App., Dkt. Entry 48.) His note is dated June 27, 2000.

Also on June 27, 2000, while working as a floater, Supinski claimed that she sustained a work-related injury. (Defs.' S.M.F. ¶ 33.) She was sent to SMS's worker compensation doctor. (Id. ¶ 34.) Under SMS's workers compensation program, Supinski was assigned to temporary alternate work from June 27 through June 30, 2000. (Id. ¶ 35.) On June 30, 2000, the company doctor determined that Supinski's injury was not work-related and released her from SMS's Return to Work Center. (Id. ¶ 36.)

SMS contends that Plaintiff was told on June 30th that her physician would have to clear her for return to work. (App. to Defs.' Mot. Summ. J., Dkt. Entry 40, Tab C, Supinski Dep., Vol. II, Ex. 12.) Supinski submitted a handwritten note dated June 30, 2000 from Dr. Alocci, stating that she could return to work, but for no more than 8 hours per day and with no lifting over 50 pounds or using a hand jack. (Ex. 11 to Pl.'s App., Dkt. Entry 49.) These were the same conditions imposed by Dr. Alocci when Plaintiff was allowed to return to work on June 26, 2000. Nonetheless, SMS refused to allow Plaintiff to return to her floater position during the few weeks before the ten-hour shift commenced.

On July 1, 2000, Supinski informed SMS in writing that Attorney Paul Jennings had been retained as her "Representative." (App. to Defs.' Mot. Summ. J., Dkt. Entry 40, Tab C, Supinski Dep., Vol. II, Ex. 13.) Attorney Jennings wrote to SMS on July 3, 2000, advising SMS that he was to be involved "throughout all 'inter-active' steps and discussions toward formulation of appropriate Reasonable Accommodations." (Id., Ex. 14.) Reiterating that Supinski could not work more than 8-hour shifts, lift more than 50 pounds, and work as a "handjacker," Attorney Jennings requested as a "reasonable accommodation" that she be assigned work in the "picking" department.*fn3 (Id.)

By letter dated July 13, 2003, SMS responded to Mr. Jennings' letter. (Id., Ex. 15.) In this reply, SMS stated that it was awaiting receipt of medical documentation indicating that Supinski was able to return to work in the floater position. SMS also stated that if Supinski's doctor required "information about her job responsibilities, she may authorize him or her to contact" SMS. (Id.) Plaintiff's counsel then supplied another note from her physician restricting Plaintiff's work hours, lifting and use of a hand jack, along with other medical documentation. By letter dated August 24, 2000, an attorney for SMS set forth the following reasons for refusing Plaintiff's request to be given a position as a selector working no more than 8-hour shifts:

(1) Plaintiff had not shown that she was disabled so as to be entitled to consideration for a ...

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