The opinion of the court was delivered by: Judge Munley
Before the Court for disposition is the Defendants' Joint Motion for Summary Judgment. This matter has been fully briefed and is ripe for disposition. For the following reasons, Defendants' motion for summary judgment is granted.
Plaintiff Arlen Shaw is currently an employee at Defendant Chamberlain Manufacturing Corp's manufacturing facility in Scranton, Pennsylvania. Chamberlain manufactures mortar shells for the military. At all relevant times, Defendant Jim Nayavich was the Human Resource Manager, Defendant James Flaherty was the company's President, and Defendant Daurice Holly-Febbo was a Supervisor and Nurse.
Shaw began working for Chamberlain in March 1998 under the job classification "laborer." (Doc. 22-8, Pl. Ex., Shaw Dep. Tr. ("Shaw Dep") 9, 14) This job classification was determined by a collective bargaining agreement. (Id. at 10) Shaw was a laborer until July 1998, when he became a skilled operator. (Id. at 10-11). In September or November of 1999, based on negotiations between his union and Chamberlain, he returned to the laborer job classification. (Id. at 11) Under the current collective bargaining agreement, laborer is the only classification available for the Scranton facility, and it encompasses jobs in three primary manufacturing areas: the forge facility, the heat treat area, and the production area. (Def. Ex. V, Nayavich Decl. ¶ 7) Chamberlain does not guarantee employees work in a specific area or specific job because production needs are sporadic and change regularly. (Id. ¶ 8) Although there are tasks in the facility that would qualify as "light duty"*fn1 work, Chamberlain does not provide permanent "light duty" positions, but only assigns temporary light duty work to employees with injuries who anticipate returning to their pre-injury jobs. (Id. ¶ 9)
Shaw injured his shoulder in October of 1998. (Shaw Dep. 33; Doc. 22-7, Chamberlain Dep.*fn2 33) At the time, he was working in a position that required him to remove a heavy mortar shell from the assembly line, place it in a machine, and place it back on the conveyor line after the machine completed it function. (Shaw Dep. 34-35) After two or three weeks of this repetitive motion, his shoulder became sore. (Id.) Then, Chamberlain placed him in a position requiring that he handle a lighter, 30 pound shell. (Id. at 35-36) While performing this task, he reached for a shell and felt a shooting pain from his right shoulder to his fingertips, followed by a few moments of numbness. (Id.) He reported the injury to the on-site nurse, who gave him some pills and released him to finish his shift. (Id. at 36) Although he did not initially miss work, he visited the doctor for Chamberlain, Dr. Joseph Greco, who restricted him to lifting twenty to twenty-five pounds for a week until he returned for a follow-up appointment. (Id. at 37) Dr. Greco then referred Shaw to Dr. Jack Henzes, who examined him three times. (Id. at 38)
Shaw continued to work with restrictions until Dr. Jeffrey Mogerman performed surgery on his shoulder in May 1999. (Id. at 37) After his surgery, Shaw was on leave until October 25, 1999. (Id. at 38) When he returned to work following the surgery, he was placed in the skilled operator classification for several months. (Id. at 39)
Within three months of the surgery, Shaw was terminated because he had trouble performing as a result of his shoulder. (Id. at 11-12, 49) Shaw arbitrated his termination, and the arbitrator reinstated him. (Id. at 49) Shaw was out of work for six months as a result of the termination. (Id. at 50) When he returned, he was under no restrictions and he worked as a skilled operator with "adaptors." (Id.) This job required that he take a five to eight pound piece of metal and place it in a machine to cut it, then take it out of the machine and place it in another machine to cut the opposite side. (Id. at 46-47) After two months, a problem arose with Shaw's performance, and he agreed to accept a demotion from skilled operator to laborer. (Id. at 51)
In December of 2001, Shaw re-injured his shoulder while working as a maintenance laborer. (Id. at 59-60) In this position, he cleaned the machines to keep them in proper working condition. (Id. at 60) On the date he was injured, there was a flood, and he cleaned up the water using a 55 gallon drum with a vacuum system. (Id. at 61) After drawing in the water, he disposed of it in a chemical disposal holding tank. (Id.) During the course of his eight hour shift, he made approximately a dozen trips from the flood to the chemical disposal tank. (Id. at 61-62) When he woke up the next morning, he could not move his arm. (Id. at 62) Prior to the re-injury, he was under no work restriction. (Id.)
The next day, he reported his injury to his supervisor, who advised him to see the nurse. (Id. at 63) The nurse advised him to see Dr. Greco. (Id.) Dr. Greco placed restrictions in his lifting and prohibited him from using his arm over his head. (Id.) Dr. Greco additionally wanted him to see Dr. Mogerman within a week because Dr. Mogerman had previously performed Shaw's surgery. (Id. at 64)
Dr. Mogerman examined him and ordered that he continue working with modified duties until he had the opportunity to re-examine him in March of 2002. (Id. at 68) At that time, Shaw was placed on painting duty. (Id. at 68) Dr. Mogerman again examined Shaw on April 8, 2002, and ordered that he continue in "sedentary" work. (Id. at 70) Dr. Mogerman explained that Shaw suffered from impingement syndrome in his shoulder, and could lift between zero and ten pounds. (Def. Ex. F., Mogerman Return to Work Evaluation, Apr. 8, 2002) Thus, Shaw continued painting. (Shaw Dep. 70) While Shaw worked with restrictions, he continued working eight hours a day, five days a week, at the same rate of pay he received when he worked without restrictions. (Id.)
On May 20, 2002, Dr. Mogerman advised that Shaw had improved and could lift no more than fifteen pounds, and was able to perform the "felt pack" job. (Id. at 75-76) This job required that Shaw fill a 120 millimeter shell with sponges. (Id. at 76-77) Despite Dr. Mogerman's advice, Shaw felt packing the sponges aggravated his shoulder because it required that he use a hammer. (Id. at 77-78) After reporting the aggravation, Shaw continued packing the sponges but Chamberlain assigned another employee to perform the hammering. (Id. at 78)
On July 8, 2002, Dr. Mogerman completely restricted Shaw from working until he had the opportunity for another observation on July 22, 2002. (Id.) On July 22, 2002, Dr. Mogerman continued Shaw's leave until yet another examination on August 12, 2002. (Id. at 79). On August 12, Dr. Mogerman counseled that Shaw should remain off work until September 5, 2002, at which time he could return to light duty work as a floor scrubber pending further examination on September 25, 2002. (Id. at 80) Floor scrubbing required that Shaw sit in and drive a machine that swept and scrubbed the floors. (Id. at 80-81)
On September 25, Dr. Mogerman reexamined him and advised that he remain off work completely until October 9, at which time he again advised that he stay off work until October 30. (Id. at 83) On October 30, he allowed Shaw to return to work on November 18, 2002 on light duty work with no use of his right arm. (Id. at 87-88) On December 4, 2002, Dr. Mogerman advised that Shaw should again cease working until January 9, 2003, to allow him time for physical therapy. (Id. at 88)
Shaw, however, did not return to work on January 9, 2003, and from the time he stopped working as a floor scrubber on September 24, 2002, he remained away from work until June of 2004. (Id. at 88-89, 149) During this time, he periodically visited Dr. Mogerman and discussed the possibility of working. (Id. at 89-91)
In early June 2003, Dr. Mogerman wrote to Chamberlain to inform it that he did not believe that Shaw would ever be able to resume his former position and he required a permanent light duty position. (Id. at 110, 112, 114) On June 24, 2003, Defendant Daurice Holly-Febbo wrote a letter to Shaw stating, "Your medical provider, Dr. Mogerman, states you are unable to return to your pre-injury job and will have permanent restrictions. Chamberlain does not have provisions in the light duty program to offer permanent light duty job classification." (Id. at 112) Since Chamberlain did not have permanent light duty positions, it requested the assistance of Karen Kane of P.A. Advocates to assist Shaw with his re-entry into the work force. (Id. at 113) Shaw met with Kane and she arranged four interviews for him with other employers. (Id. at 115-116)
On September 10, 2003, Dr. Mogerman sent a letter to Chamberlain releasing Shaw to return to work with restrictions. (Id. at 118-119) He stated that Shaw could lift in the ten to twenty-five pound range, but could push or pull zero to five pounds with his right arm and ten to twenty-five pounds with his left. (Id. at 180) He concluded that these restrictions would be in place indefinitely. (Def. Ex. F, Mogerman Return to Work Eval., Sept. 10, 2003).
On October 17, 2003, Chamberlain responded by informing Dr. Mogerman that it had no permanent light duty positions, and thus could not rehire Shaw because Dr. Mogerman's prognosis was for a permanent injury and restriction. (Shaw Dep. 120-121; Def. Ex. F. Chamberlain Letter to Dr. Mogerman, Oct. 17, 2003) Shaw believes this was not true because in the past employees performed light duty tasks. (Shaw Dep. 120-121) Shaw, however, could not say specifically whether there were light duty tasks that needed to be done at that time, he did not believe that ...