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Pokrifka v. Dollar General Corp.

September 14, 2009

SARAH MARIE POKRIFKA, PLAINTIFF
v.
DOLLAR GENERAL CORPORATION, DEFENDANT



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(JUDGE VANASKIE)

MEMORANDUM

Plaintiff Sarah Marie Pokrifka brings this action against Defendant Dolgencorp, Inc. ("Dollar General"), on allegations that she was discharged based on her gender and disability in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. State. § 951, et seq., and Pennsylvania common law. (Compl., Dkt. Entry 1.) She also alleges she was retaliated against for making a claim for Workers' Compensation benefits and for providing testimony in a third-party personal injury lawsuit against Dollar General.

Dollar General has filed a Motion for Summary Judgment with respect to all of Ms. Pokrifka's claims. (Dkt. Entry 25.) Dollar General has also filed a Motion to Strike the testimony of Dr. Joseph Michael from the summary judgment record. (Dkt. Entry 30.) For the reasons stated below, Dollar General's Motion for Summary Judgment will be granted and its Motion to Strike will be denied.

I. BACKGROUND

Dolgencorp operates discount retail stores throughout the country under the name Dollar General. (Booth Decl., Dkt. Entry 28, at ¶ 3.) Ms. Pokrifka began working at Dollar General as a clerk in September 1998.*fn1 (Def.'s Statement of Material Facts ("SMF"), Dkt. Entry 27, ¶ 6.)

In November of 1998, she was promoted to a third key holder position. (Def.'s SMF, ¶ 7.) Shortly thereafter, she was promoted to Assistant Store Manager, and in April of 1999, she was promoted to store manager. (Def.'s SMF, ¶¶ 8 & 9.) The store manager is the highest ranking on-site employee and is responsible for, among other things, running the store's day-to-day operations. (Booth Decl., Dkt. Entry 28, at ¶ 3.) The store manager reports to the district manager. (Id.)

According to Dollar General's job description, a store manager is "responsible for the management of all employees in the effective planning and implementation of all store processes, including ordering, receiving, stocking, presentation, selling, staffing and support." (Job Description, Dkt. Entry 29-3.) This includes frequent walking, standing, bending, stooping, kneeling, and unloading of trucks. (Id. at 2.) Occasional climbing and lifting of up to 55 pounds, and frequent lifting of up to 40 pounds, are also included in the description. (Id.) Ms. Pokrifka claims that she was never told about these requirements before accepting the general manager position. She testified: "I was never told I had to lift any amount of weight to be a manager. I was never told that--even though I weigh 180 pounds, I should be able to lift 40." (Pokrifka Dep., Dkt. Entry 29-2, at 18.)*fn2

In August of 2000, Ms. Pokrifka transferred stores. (Def.'s SMF, ¶ 11.) Within ten days of transferring stores, a customer slipped and fell in the store, and later filed a personal injury lawsuit against Dollar General. (Def.'s SMF, ¶ 12.) The next year, in 2001, Ms. Pokrifka was deposed in connection with the third-party personal injury suit. (Def.'s SMF, ¶ 13.) She did not, however, testify at the trial in 2003. (Def.'s SMF, ¶ 14.)

At the time when Ms. Pokrifka served as store manager, Robert Booth was the district manager to whom she reported. (Booth Decl., Dkt. Entry 28, at ¶ 4.) Mr. Booth claims he had no knowledge that Ms. Pokrifka testified in the third-party personal injury suit. (Id. at ¶ 9.) Ms. Pokrifka testified that she did not know whether Mr. Booth knew she was testifying in the personal injury suit or not. (Pokrifka Dep., Dkt. Entry 29-2, at 82.)

On April 3, 2000, Ms. Pokrifka sustained a workplace injury to her lower back. (Def.'s SMF, ¶ 16.) Later that year, on December 12, 2000, Ms. Pokrifka sustained another workplace injury while wrapping Christmas presents. (Def.'s SMF, ¶ 18; Dkt. Entry 29-7.) On March 30, 2002, while unloading soda, Ms. Pokrifka sustained a third workplace injury, and felt discomfort in her lower back. (Def.'s SMF, ¶ 19; Dkt. Entry 29-7, at 2.) Finally, on April 15, 2002, while in the stock room, she sustained an injury resulting in immediate pain to her lower back.*fn3 (Def.'s SMF, ¶ 20.) Medical treatment for all four of her injuries was covered by Workers' Compensation. (Def.'s SMF, ¶¶ 17-20.)

The same day as her injury, Dr. Joseph Michael examined her. (Michael Report, Dkt. Entry 33, at 19.) He found that her "thoracic spine showed tenderness upon palpation of the first through the twelfth spinal processes. Examination and palpation of the thoracic spine musculature revealed deep and superficial muscle spasms bilaterally . . . Motion palpation testing was positive for severe restrictions in the thoracic spine." (Id. at 20.) He also found "severe restrictions at the lumbar spine, as well as the right and left sacroiliac joints." (Id.) An MRI of the thoracic spine in April of 2002 showed some thoracic disc degeneration and a lumbar MRI showed a disc herniation at L3-4 and a protruding disc at L4-5. (Dkt. Entry 29-7, at 2.)

Ms. Pokrifka saw Dr. John A. Kline, Jr. in September of 2002 for pain management.

(Kline Letter, Dkt. Entry 33, at 16.) He noted that she was being treated by a chiropractor and continued to work full-time. (Id.) The chiropractic services were helpful and allowed Ms. Pokrifka to manage her work tasks. (Id.) A clinical examination revealed "tenderness at the L4-5, S1 spinous processes, and the left paraspinal musculature, once again particularly over the sacroiliac region. She had continued tenderness overly the sciatic notch. . . ." (Id. at 17.) Dr. Kline prescribed physical therapy and medication. (Id.)

Dr. Kline saw Ms. Pokrifka again on November 20, 2002. (Kline Letter, Dkt. Entry 33, at 17.) Ms. Pokrifka stated she felt numbness and tingling at times, and continued back pain. (Id.) She continued to work full-time, and the pain was less during the initial 40 or 50 hours of the week, but increased substantially with the last 40 hours. (Id.) She had continued tenderness in her lower back. (Id.) Dr. Kline instructed her to continue with a home exercise program and proscribed Utracet in addition to Bextra. (Id.)

On January 8, 2003, Ms. Pokrifka underwent a Functional Capacity Evaluation conducted by Dr. Kline. (Dkt Entry 29-6.) He found she "is minimally capable of performing functional activities at the light-medium physical demand level." (Id.) During the examination, he observed "evidence of high symptom exaggeration and voluntary submaximal effort suggesting that Ms. Pokrifka may actually indeed be capable of performing a higher degree of material handling than demonstrated [ ]." (Id.) He further observed that it is more likely that she would be capable of performing at a higher physical demand level had a more consistent effort been put forth and that this observation should be "strongly considered" in a job analysis or physical capacity evaluation. (Id.)

On March 24, 2003, Dr. Kline again examined Ms. Pokrifka. (Dkt. Entry 29-5, at 1.) He found that she could sit, stand, or walk for six to eight hours. (Id.) He found she could lift from 21 to 30 pounds and could occasionally bend, reach, climb, squat, rotate, twist, and kneel. (Id.) He concluded that she should be limited to working fifty hours per week. (Id.) Ms. Pokrifka saw Dr. Kline for a follow up visit on April 24, 2003, and demonstrated a palpable muscle spasm in the right lumbosacral paraspinals as well as a mild tenderness ...


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