The opinion of the court was delivered by: Judge McClure
On April 28, 2005, plaintiff Michael Bond ("Bond") filed a one-count complaint in the Middle District of Pennsylvania. Bond asserts in his complaint that when defendant Town of Bloomsburg ("Bloomsburg" or the "Town") terminated his employment they violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq..
On March 7, 2006, defendant Town of Bloomsburg filed the instant motion for summary judgment. The matter is now fully briefed and ripe for our decision. For the following reasons the court will grant defendant's motion for summary judgment and enter judgment in favor of defendant Town of Bloomsburg and against plaintiff Michael Bond.
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 to 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 non-movant'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, 578 (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).
First, we note that defendant complied with Local Rule 56.1 and submitted a statement of undisputed material facts in the form of short and concise numbered paragraphs supported by citations to the record. (Rec. Doc. No. 17.) Plaintiff has also filed a counter-statement of undisputed material facts in similar form. (Rec. Doc. No. 28-2.) Unfortunately, plaintiff's counter-statement of material facts fails to comply with the procedure set forth in Local Rule 56.1. Local Rule 56.1 provides in relevant part that:
The 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 [relating to the moving party's statement of material facts], as to which it is contended that there exists a genuine issue to be tried.
Local Rule 56.1 (emphasis added).
Plaintiff's counter-statement of material facts is not set forth in a responsive manner. Defendant's statement contains ninety-eight (98) paragraphs while plaintiff's counter-statement contains only nineteen (19) paragraphs. We will develop the uncontested factual background from both parties' statements of material facts, despite plaintiff's failure to comply with the procedure established by the Local Rules. However, we remind plaintiff that "[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." Local Rule 56.1.
B. Undisputed Material Facts
Plaintiff Michael Bond was hired by the Town on July 21, 1997, as an Operator/Laborer in the Department of Public Works ("DPW"). As a Laborer, Bond was required to a perform a variety of tasks. These tasks included operation of equipment, trash removal, installation and repair of sewer lines, manual work on sidewalks and curbs, patching of pot holes, changing of traffic lights, and any manual work related to the maintenance of the Town's streets. According to the job description the Operator position "requires strenuous physical effort and exposure to uncomfortable working conditions where manual laboring duties are involved." (Rec. Doc. No. 22, Ex. E, at 1.) The Town's job description also includes that a required ability for the operator position is "sufficient physical strength and freedom from disabling defects to lift heavy objects and work under adverse weather conditions." (Rec. Doc. No. 22, Ex. E, at 2.)
In 2002-03, the Town employed approximately fifty employees and five Labor/Operators. Bond's supervisor was John Barton, the superintendent of the DPW. Bond's work included being sent to other departments within the Town to perform tasks as needed. While working in other departments, plaintiff was supervised by individuals other than Barton.
On June 4, 2002, Plaintiff injured his left knee while performing curbside work in the Recycling Center. After his injury, Bond treated with Dr. Gregory Fanelli, an orthopedic surgeon. Bond had treated with Dr. Fanelli previously, and personally selected him to be his physician for his June 2002 injury. After Bond's injury in 2002, Dr. Fanelli recommended surgery for plaintiff. While waiting for surgery Bond returned to work in a light duty capacity.
Bond underwent an interarticular revisional anterior cruciate ligament reconstruction by Dr. Fanelli on his left knee on July 5, 2002. On September 20, 2002, an Independent Medical Examination ("IME") of Bond was conducted by Dr. Mark Holencik. (Rec. Doc. No. 22, Ex. E, at 5-7.) At that time Dr. Holencik also completed a restriction capabilities form for Bond which indicated that Bond's injuries were temporary. (Rec. Doc. No. 22, at Ex. E., at 4.) Bond also recalled that Dr. Holencik limited his work capacity to "light duty" (Rec. Doc. No. 18, Ex. A, at 15);*fn1 Dr. Holencik's September 20, 2002 restrictions form, however, has the definition of "sedentary work" circled and not "light duty." (Rec. Doc. No. 22, Ex. E., at 4.) Dr. Holencik's September 20, 2002 letter stated that "[a]t this point I would not consider allowing him to resume normal industrial activity until he has something resembling a normal range of motion." (Rec. Doc. No. 22, Ex. E, at 6.) Dr. Holenchik felt that it would take three to five months of recovery before Bond could consider any more vigorous activity. (Rec. Doc. No. 22, Ex. E, at 6.)
After his surgery, on October 7, 2002, Bond returned to work at the same rate of pay he was earning prior to going out on leave. The Town offered Bond the light duty job of Operator that included the tasks of answering phones, sweeping floors, and performing general cleaning duties. (Rec. Doc. 22, Ex. E, at 8.) When no work that fell within Bond's medical restrictions was available, plaintiff was sent to do work in the Recycling Department or Town Hall. After his knee injury, Bond received mixed work assignments from several of the Town's departments; e.g., Bond worked in the DPW approximately fifteen percent of the time and worked in light duty at Town Hall approximately thirty-five percent of the time.
On December 23, 2002, a Functional Capacity Evaluation Form was performed on Bond at Geisinger Health South Rehabilitation Center by Louise Litzy, P.T.. (Rec. Doc. No. 22, Ex. E, at 9-11.) Litzy concluded that Bond was "safely capable of performing work in the Medium work demand level with limitations on left lower extermity usage (i.e. foot/leg controls, balancing, squatting). This does not meet the requirements of his present job." (Rec. Doc. No. 22, Ex. E, at 11) (emphasis in original). Bond agreed with Litzy's assessment.
On January 21, 2003, Dr. Fanelli examined Bond and completed a new job restrictions form for plaintiff. (Rec. Doc. No. 22, Ex. E, at 12.) Dr. Fanelli restricted plaintiff to medium duty at the most. (Rec. Doc. No. 22, Ex. E, at 14.) Specifically, Dr. Fanelli restricted plaintiff to only occasional lifting of any weight of 30 pounds; one hour per work day of walking and driving to work; two hours per work day of standing; three hours per work day of sitting; occasional bending and squatting; and occasional exposure to moving machinery. (Rec. Doc. No. 22, Ex. E, at 12.) Dr. Fanelli also completely restricted Bond from crawling or climbing ladders. (Rec. Doc. No. 22, Ex. E, at 12.) Consistent with Bond's earlier work restrictions, Dr. Fanelli indicated that these restrictions were temporary. (Rec. Doc. No. 22, Ex. E, at 12.) Under deposition, Bond admitted the ...