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Weirich v. Horst Realty Co.

March 24, 2009


The opinion of the court was delivered by: Golden, J.


Defendant Horst Realty Company, LLC moves for summary judgment with regard to the remaining ten counts in the Complaint of Plaintiffs Brian L. Weirich and Cherie M. Weirich alleging, in part, violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq. and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 951, et seq.*fn1 After careful consideration of the briefs submitted by the parties, and the exhibits appended thereto, the Court grants Defendant's Motion as to all but counts one and two in Plaintiffs' Complaint.


Brian L. Weirich ("Plaintiff") suffers from Multiple Sclerosis ("MS"), a progressive and incurable disease that can affect the function of one's organs and debilitate one's neurological and musculoskeletal systems. (Pls.' Stmt. of Facts ¶¶ 10, 69-70). While Plaintiff highlights the many ways in which his MS condition has affected his life (id. at ¶¶ 71-77), relevant here are the facts that (1) he gave his previous employer a disability letter in 2003 limiting him to light duty without climbing ladders, and (2) he has difficulties with manual tasks, including bathing and brushing his teeth. (Id. at ¶ 77; Weirich Dep., Ex. 27).

On March 1, 2004, Defendant Horst Realty Company, LLC assumed property management duties of the Briarcrest Gardens apartment complex ("Briarcrest") from Horst Property Management, Inc. (Def.'s Stmt. of Facts ¶¶ 1-2). Prior to March 1, 2004, Plaintiff had been employed by Horst Property Management, Inc. as a "Front Desk Clerk/Leasing Consultant." (Id. ¶¶ 2, 12). Horst Property Management, Inc. transferred Plaintiff to this clerical position at his request in February 2004. (Id. ¶ 12). In assuming control of Briarcrest, Defendant hired Plaintiff and over twenty other employees at Briarcrest as at-will employees, all of whom were former employees of Horst Property Management, Inc. (Id. ¶ 7; Pls.' Stmt. of Facts ¶ 2). Consequently, Plaintiff continued in his position as a front desk clerk/leasing consultant after March 1, 2004. (Pls.' Stmt. of Facts ¶¶ 2, 7-8, 12). Kate McKenna, the manager who had approved Plaintiff's move to the front desk position in February, was initially kept on as manager by Defendant. However, within two weeks of Defendant's assumption of Briarcrest, she was replaced by Larri Ann Craig. (Id. at ¶¶ 5, 13).

Though McKenna had a positive view of Plaintiff's skills, Craig had a more critical view of Plaintiff's clerical abilities. (Id. at ¶ 17; Def.'s Stmt. of Facts ¶ 17). While Plaintiff contests many of Craig's concerns regarding his clerical abilities, it is undisputed that he was approached concerning improperly completed lease termination forms and his failure to complete a filing project. (Pls.' Stmt. of Facts ¶¶ 22-23). While working in the front desk clerk/leasing consultant position, Plaintiff applied for the position of "Service Superintendent," a promotion over his clerical job. (Id. at ¶ 27). Craig envisioned this position as that of a working supervisor, distinct from previous versions of the job. Part of the job responsibilities included climbing ladders. (Weirich Dep. at 74). Plaintiff admitted to Craig that he could not climb ladders because of his medical condition. (Pls.' Stmt. of Facts ¶ 28). Defendant ultimately hired Bernard Dettrey for the position. (Def.'s Stmt. of Facts ¶ 32).

In mid-April 2004, as a result of dissatisfaction on both sides, Plaintiff met with Craig and Defendant's Director of Human Resources, Brent Keener, to discuss the possibility of alternate employment with Defendant. (Pls.' Stmt. of Facts ¶ 38). On April 27, 2004, Keener faxed Plaintiff a copy of the job descriptions for two open positions at Spring Hill Suites, a facility managed by Defendant: (1) Night Auditor and (2) Facility Attendant. (Def.'s Stmt. of Facts ¶ 39; Weirich Dep., Ex. 15). This led to a follow-up meeting on April 30, 2004, where Plaintiff expressed his dissatisfaction with the two specific jobs that had been offered. (Pls.' Stmt. of Facts ¶ 40). Craig and Keener subsequently set out a schedule for Plaintiff's termination. (Weirich Dep., Ex. 11). On May 13, 2004-over two months after Defendant retained Plaintiff-Craig met with Plaintiff to finalize his termination, which was characterized as a temporary layoff. (Def.'s Stmt. of Facts ¶ 43). Under Craig's plan, Plaintiff would continue to receive health insurance coverage from Defendant for up to thirteen weeks. (Id.). If, after the thirteen-week period, Plaintiff did not secure another position with Defendant, the layoff would become permanent. (Id.). During the thirteen-week period, Keener kept Plaintiff apprised of numerous job opportunities within the company, many of which Plaintiff found unsuitable, and some of which turned out to be false leads. (Pls.' Stmt. of Facts ¶¶ 42-43, 45-47). As a result, Plaintiff's relationship with Defendant terminated at the end of the thirteen-week period.


Summary judgment should be granted if the record, including pleadings, depositions, affidavits, and answers to interrogatories, demonstrates "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). In making that determination, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The question is whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. It is not the role of the trial judge "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Id. at 250. Indeed, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. at 255.


Defendant raises arguments for summary judgment as to each of the remaining ten counts in Plaintiff's Complaint. Accordingly, the Court will analyze the arguments as to each count separately. First, however, the Court must address the proper standard for this claim under the ADA.

1. Burden-Shifting and Mixed-Motives Analyses

Plaintiff argues that pursuant to Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), he can proceed with his ADA claims under both the McDonnell Douglas burden-shifting approach and the Price Waterhouse mixed-motives approach. (Pls.' Opp'n Mem. at 20). In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the U.S. Supreme Court established a burden- shifting framework to determine whether an employer had a discriminatory motive in cases where the plaintiff only brings circumstantial evidence of discrimination. Here, if the plaintiff establishes a prima facie case of discrimination, "then an inference of discriminatory motive arises and the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action." Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). If the defendant can proffer such a reason, "the inference of discrimination drops and the burden shifts back to the plaintiff to show that the defendant's proffered reason is merely pretext for intentional discrimination." Id. However, under the mixed-motives framework set forth by the U.S. Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), as an alternative to making out a prima facie case with circumstantial evidence, plaintiff may present direct evidence of discrimination. See Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir. 1998). Once direct evidence is presented, the burden shifts to the defendant to show, by a preponderance of the evidence, that the same action would have been taken absent the illegitimate reason. See also Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512-13 (3d Cir. 1997), cert. denied, 523 U.S. 1074 (1998). Finally, in Desert Palace, the U.S. Supreme Court clarified the mixed-motives framework by holding that a mixed-motives jury instruction could be given in a Title VII case even if only circumstantial evidence of discrimination had been presented at trial. Desert Palace, 539 U.S. at 101. In the case sub judice, Plaintiff presents only circumstantial evidence of discrimination.*fn2 As a result, Plaintiff specifically contends that-though Desert Palace is a Title VII case-this opinion nonetheless allows him to proceed with his ADA claims under the Price Waterhouse mixed-motives framework even if he cannot establish direct evidence of discrimination. (Pls.' Opp'n Mem. at 20).

Plaintiff's argument fails because the Title VII mixed-motives framework used in Desert Palace has not been extended to ADA claims in the summary judgment context. See Chubirka v. Int'l Paper/xpedx Paper & Graphics, No. 04-5010, 2005 WL 1840170, at *3 n.6 (E.D. Pa. Aug. 2, 2005) ("Desert Palace . . . is inapplicable in this case inasmuch as Desert Palace addresses statutorily-based, post-trial jury instructions in a Title VII case, and has not been extended to ADA or ADEA claims in the summary judgment context by the Third Circuit."); Harp v. Southeastern Pennsylvania Transp. Auth., No. 04-2205, 2006 WL 1517390, at *6-7 (E.D. Pa. May 31, 2006) (same). In post-Desert Palace, non-Title VII actions at the summary judgment stage, the U.S. Supreme Court has continued to apply the McDonnell Douglas burden-shifting approach. See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 50-51 (2003) (approving use of McDonnell Douglas framework at summary judgment stage in ADA disparate treatment action). The Third Circuit also has done so. See, e.g., Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 761-62 (3d Cir. 2004) (using McDonnell Douglas framework in post-Desert Palace ADA action where plaintiff introduced only circumstantial evidence of disparate treatment), cert. denied, 544 U.S. 961 (2005).*fn3

Thus, in an ADA action, if direct evidence of discrimination is produced, the Price Waterhouseframework applies; if circumstantial evidence of discrimination is produced, the McDonnell Douglas framework applies; if both kinds of evidence are produced, both frameworks apply. See Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 512 (3d Cir. 2004) (ADEA action); Schellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 n.4 (3d Cir. 2003) ("Referring to these theories [pretext v. mixed-motives] as though they . . . encompass two mutually exclusive legal theories is as troublesome as it is misleading."). As Plaintiff has failed to produce any direct evidence of unlawful discrimination, the Court will continue its analysis using the McDonnell Douglas burden-shifting framework. See Mock v. Univ. of Pittsburgh at Johnstown, No. 04-314, 2007 WL 2253602, at *12 n.6 (W.D. Pa. Aug. 3, 2007) (conducting same analysis and reaching same conclusion); Harp, 2006 WL 1517390, at *6-7 (same); see also Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 359-60 (8th Cir. 2008) (holding that, except in Title VII cases covered by Desert Palace, a mixed-motive jury instruction cannot be given unless the plaintiff offers "direct evidence" of discrimination), cert. granted, 129 S.Ct. 680 (2008).*fn4

2. Wrongful Termination (Counts One and Two)

In order to support a prima facie case of disability discrimination under the ADA and the PHRA,*fn5 a plaintiff must establish that he: (1) has a "disability," (2) is a "qualified individual," and (3) has suffered an adverse employment action because of his disability. Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006). Defendant challenges whether Plaintiff is "disabled" and whether he is a "qualified individual" under the ADA. As a result, the Court will focus on these two elements.

a. Disability

Under the ADA and the PHRA, a "disability" is defined as either (1) a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; (2) a record of such impairment; or (3) being regarded as having such an impairment.*fn6 See Marinelli v. City of Erie, 216 F.3d 354, 359 (3d Cir. 2000) (quoting 42 U.S.C. § 12102(2)(A)-(C))."A major life activity need not constitute volitional or public behavior; it need not be an activity that is performed regularly or frequently; but it does have to have importance to human life comparable to that of activities listed in the regulatory examples." Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 384 (3d Cir. 2004). A non-exhaustive list of major life activities covered by statute includes "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 45 C.F.R. § 84.3(j)(2)(ii); Marinelli, 216 F.3d at 361 (internal citation and quotations omitted). "[T]o be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long-term." Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198 (2002).

It is undisputed that MS is an "impairment" that triggers the protection of the ADA when it is accompanied by a sufficient limitation. (Def.'s Mem. at 7). Thus, the question becomes whether Plaintiff's MS was accompanied by a substantial limitation of a major life activity at the time of his employment with Defendant. Plaintiff asserts that he is unable to care for himself and do manual tasks of such a variety as to constitute a severe restriction of a major life activity. Plaintiff alleges that his MS restricts his ability to bathe, wash himself, walk, lift, climb, run, endure high stress levels, and stand for long periods of time. (Compl. ¶ 17; Pls.' App. B, Pls.' Answer to Def.'s Request for Admissions No. 1; Pls.' App. C, Report of Dr. Dukkipati; Pls.' Sur-Reply at 2). Plaintiff's Response to Defendant's Motion for Summary Judgment further alleges restrictions of manual tasks, sexual relations, work, and his ability to care for himself. (Pls.' Opp'n Mem. at 10). The U.S. Supreme Court has suggested that "household chores, bathing, and brushing one's teeth are among the types of manual tasks of central importance to people's daily lives." Toyota, 534 U.S. at 202. In Toyota, the Court ruled that the appeals court incorrectly disregarded evidence that, even after the plaintiff's condition had worsened, she was able to "brush her teeth, wash her face, bathe, tend her flower garden, fix breakfast, do laundry, and pick up around the house," thus overlooking the precise type of manual tasks which are central to individuals' lives. Id.

Here, Plaintiff alleges that he has (and had while he was employed) difficulty doing the following tasks: writing, combing his hair, brushing his teeth, getting in and out of bed, cooking, household chores, and bathing. (Pls.' Stmt. of Facts ¶¶ 73-75; Pls.' App. B, Pls.' Answer to Def.'s Request for Admissions No. 1). These impairments are precisely the type of manual tasks and self-care actions which the U.S. Supreme Court has suggested deserve examination.*fn7 Unlike the plaintiff in Toyota, Plaintiff here has alleged an inability to do the type of activities which collectively meet the definition of "manual tasks." Accordingly, the Court finds that these claims, as a whole, are sufficient to render summary judgment inappropriate as to the "disability" element.

b. Qualified Individual

A "qualified individual" is defined as one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); Turner, 440 F.3d at 611. In evaluating whether Plaintiff is a qualified individual, the Court must decide the following: (1) whether Plaintiff has the requisite skill, experience, education and other job-related requirements of the position, and (2) whether Plaintiff, with or without reasonable accommodation, can perform the essential functions of the position. See 29 C.F.R. § 1630.2(m); Turner, 440 F.3d at 611. A disabled individual's qualifications should be assessed according to his or her abilities at the time of the employment decision, and not at the time of the lawsuit. Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998).

Defendant contends, under the first prong, that Plaintiff lacked the requisite skill and experience necessary for his position as a front desk clerk/leasing consultant. Plaintiff had previously made a career repairing HVAC systems and had no prior experience as a receptionist, secretary, or leasing consultant. (Weirich Dep. at 9-11). Defendant, however, admits that the front desk clerk/leasing consultant position was "basic" and "require[d] little skill or special training." (Def.'s Mem. at 18). Further, because Defendant hired Plaintiff for this position (Def.'s Stmt. of Facts ¶ 12), the Court infers favorably to Plaintiff as the non-moving party that Plaintiff had the requisite skill and experience to perform his duties. See Peter v. Lincoln Technical Inst., Inc., 255 F. Supp. 2d 417, 436 (E.D. Pa. 2002). Therefore, the Court must turn to the second prong of the inquiry.

In order to determine whether a plaintiff, with or without a reasonable accommodation, could perform the essential functions of his position, a court must first consider whether he could have performed the essential functions of the job without an accommodation. See Deane v. Pocono Med. Ctr., 142 F.3d 138, 146 (3d Cir. 1998) (en banc). If the plaintiff could not have performed the essential functions of his job without an accommodation, then the court examines whether he could have performed the essential functions of his job with a reasonable accommodation. See id. If the plaintiff could not have performed the essential functions of his job even with a reasonable accommodation, then he has failed to set out a necessary element of his prima facie case. See id.

From the record, there are numerous material facts in dispute addressing whether Plaintiff could perform the essential skills necessary for the front desk clerk/leasing consultant position without an accommodation.*fn8 Plaintiff's supervisor, Larri Ann Craig, documented Plaintiff's alleged deficiencies over a two week period from April 5, 2004, through April 20, 2004. (Craig Aff. Ex. 1). According to this documentation, Plaintiff's deficiencies included difficulty answering multiple phone lines, promptly greeting customers, properly formatting typed letters, properly sorting and stamping the mail, and giving work to other employees. (Id.). Plaintiff's supervisor also documented the complaints of customers who thought Plaintiff was unhelpful and staff who were frustrated because he continuously asked for assistance. (Id.). Defendant also alleges that Plaintiff could not adequately complete, despite Craig's assistance, a spreadsheet on Microsoft Excel (Craig Dep. at 35-36), failed to organize the maintenance files for the 804 apartments at Briarcrest (Craig Aff. ¶ 5), and made basic errors on lease termination forms. (Craig Aff. ¶ 6).

Plaintiff disputes most, if not all, of these allegations. Plaintiff contends that Craig never informed him of any problems he may have had answering multiple phone lines or the need for him to greet each visitor immediately as he or she walked through the door. (Weirich Dep. at 57). Plaintiff further states that he did not fail to properly format typed letters because Craig never told Plaintiff how she specifically wanted the letters formatted. (Id. at 58-59). Plaintiff denies that he was told by Craig how to use Microsoft Excel. (Id. at 56; Pls.' Stmt. of Facts ΒΆ 21). Furthermore, while Plaintiff admits that he did not complete the filing project concerning the maintenance files for the 804 apartments at Briarcrest, he contends that he was not given the forms or materials necessary to complete the task. (Weirich Dep. at 52-56). Finally, while Plaintiff admits that Craig spoke to him about problems with his completion of lease termination forms, Plaintiff stated during his deposition that he corrected the errors. (Id. at 58-59). Given these material factual disputes between the ...

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