The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
Defendant United Parcel Service, Inc. ("UPS") has moved for summary judgment a second time in these consolidated cases charging disability discrimination in employment. Its first motion was denied because the evidence of record disclosed a genuine dispute on the issue of whether Plaintiff Edward M. Supinski, Jr.'s physical limitations were regarded by UPS as rendering him disabled within the purview of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.*fn1 Defendant's second summary judgment motion argues, inter alia, that, as a matter of law, Mr. Supinski cannot show that he was able to perform the essential functions of any position available at the UPS facility where he had been employed after sustaining a serious shoulder injury. After careful consideration of all the evidence, I find that Plaintiff is unable to show that he can perform, with or without reasonable accommodation, the essential functions of the positions he has sought at UPS since sustaining his shoulder injury. Accordingly, UPS' second summary judgment motion will be granted.
Mr. Supinski began working for UPS in 1979 as a Car Washer, and eventually occupied the position of Package Car Driver at the UPS facility in Taylor, Pennsylvania. UPS defines the physical requirements of this position as including the ability to "[l]ift, lower, push, pull, leverage and manipulate equipment and/or packages weighing up to 70 pounds" and "[a]ssist in moving packages weighing up to 150 pounds." (UPS Essential Job Functions, Dkt. Entry 38-16, at 30.)
In October of 2000, Mr. Supinski sustained a work-related massive cuff tear in his right shoulder. As a result, he underwent surgery and a period of physical therapy. On October 4, 2001, Shawn P. Hennigan, M.D., a General Orthopaedic Specialist, approved Mr. Supinski to return to work under the following permanent restrictions: "Seventy pound lifting limit to waist level, twenty-five pound lifting limit to shoulder level, twenty pound lifting limit overhead." (Hennigan Report, Dkt. Entry 81-2.) It is undisputed that these restrictions prevented Mr. Supinski from resuming his position of Package Car Driver. It is also undisputed that UPS did not approve Mr. Supinski's return to employment in any capacity.
On March 22, 2006, following exhaustion of administrative remedies, Mr Supinski commenced the first of two disability discrimination cases. The first action, removed from the Court of Common Pleas of Lackawanna County and docketed in this Court No. 3:06-CV-00793 ("Supinski I"), concerned the refusal of UPS to accept Mr. Supinski for various job openings that existed prior to 2006.
Mr. Supinski's efforts to return to UPS continued after the commencement of Supinski I. In July, 2006, Mr. Supinski informed Robert Oakes, Business Manager for Teamsters Local 229, the union to which Mr. Supinski belonged, that there were openings for Car Washer/Unloader positions at the UPS Taylor facility and that he was capable of performing the jobs.*fn2 (Oakes Decl., Dkt. Entry 77-2, ¶ 8.) Sometime that month, Mr. Supinski bid for a Car Washer/Unloader position. (Grievance, Dkt. Entry 81-7; Supinski Dep., Dkt. Entry 77-2, at 23.) Mr. Supinski claims he was "the number one seniority person" to bid for the Car Washer/Unloader position but UPS gave the job to two persons with less seniority." (Grievance, Dkt. Entry 81-7.) Mark Johnson, District Labor Manager for the Central Pennsylvania District for UPS, responsible for administering the collective bargain agreement at the Taylor facility, testified that he discussed Mr. Supinski's request for the Car Washer/Unloader position with Mr. Oakes. (Johnson Decl., Dkt. Entry 77-2, ¶ 15.) They agreed that Mr. Supinski would be entitled to the position if he provided medical documentation establishing he was able to fulfill the essential functions for that combination position. (Id. at 43, ¶ 16; Oakes Decl., ¶ 9.)
Albert D. Janerich, M.D., in a note dated September 20, 2006, stated that Mr. Supinski was "capable and able to return to work on the local sort/carwash job he bid." (Janerich Note, Dkt. Entry 81-8.) At his deposition, Mr. Supinski admitted that he had not provided Dr. Janerich with "the exact lifting requirements" for the position, but only said he had previously performed the Car Washer position. (Supinski 2009 Dep., Dkt. Entry 77-2, at 27.) Mr. Oakes informed Mr. Supinski that the note was not sufficient to show he could perform the vacant Car Washer/Unloader position. (Oakes Decl., ¶ 11.) Mr. Oakes stated that Mr. Supinski did not provide him with any further documentation. (Id. at ¶ 12.)
UPS contends that Mr. Supinski could not satisfy the physical requirements of the position for which he had bid. According to John Romeo, the Manager of the Pocono Center of the UPS Taylor facility, "[a]ll carwash positions at the Taylor facility are combination full-time positions involving at least one additional task requiring the same lifting requirements as package car drivers, feeder drivers and loaders, and have been since implementation of the 1997 collective bargaining agreement between UPS and Teamsters Local 229." (Romeo Decl., Dkt. Entry 77-2, ¶ 4.) Mr. Romeo further stated that from August 2004 to May of 2009, the only vacancies at the Taylor facility, which employs about 200 persons, were for "package car drivers, tractor trailer/feeder drivers and combination carwash/unload positions." (Id. at ¶ 7.) Mr. Johnson likewise stated that "[a]ll carwash positions at the Taylor facility are combination full-time positions involving at least one additional task requiring lifting, and have been since implementation of the 1997 collective bargaining agreement between UPS and Teamsters Local 229."*fn3 (Johnson Decl., Dkt. Entry 77-2, at ¶ 19.) Jason Holgate, currently a Pre-load and Yard Jockey at the UPS Taylor facility, stated he was previously a combination Car Washer and Unloader at the Taylor facility. (Holgate Decl., Dkt. Entry 77-2, at ¶ 3.) He further stated that, since 1997, all Car Washer positions at the Taylor facility have been full-time positions, which involved unloading or local sort. (Id. at ¶ 5.)
Persons holding the positions of Sorter, Unloader/Loader, Driver, and Feeder Driver at UPS, according to the UPS Essential Job Functions document, are required to "[c]ontinuously lift and lower, push/pull packages that occasionally weigh up to 70 pounds each;" "[l]ift packages to heights above the shoulder and lower to foot level as appropriate;" and "[a]ssist in moving packages weighing up to 150 pounds." (Essential Job Functions, Dkt. Entry 38-16.) A Loader/Unloader is additionally required to "[l]ift and lower packages while 'unloading' at a rate of 700 to 1300 per hour and while 'loading' at a rate of 500 to 1200 packages per hour." (Id.)
The Car Washer position requires the ability to "[l]ift, lower, push, pull and carry wash equipment weighing up to 50 pounds." (Id.)
Nicholas D. Coyer occupied a Feeder position at UPS prior to August of 2002. (Coyer Dep., Dkt. Entry 81-12, at 4.) He was required to unload and load his truck as part of his responsibilities. He testified in Mr. Supinski's workers' compensation proceedings that he was required to lift about 75 pounds over his waist, and would lift up to 50 pounds above his shoulders. Mr. Supinski was restricted to lifting no more than 25 pounds to shoulder height and no more than 20 pounds overhead. Although Mr. Coyer said that the actual physical demands of his job as Feeder exceeded these limits, he also testified that he could have performed his duties as Feeder within the restrictions imposed on Mr. Supinski.
Elizabeth Foley, a Clerk/Car Washer for UPS, testified in Mr. Supinski's workers' compensation case that UPS has had part-time Car Washers since 2001. (Foley Dep., Dkt. Entry 81-11, at 3.) She also stated that the Car Washer Position does not require any heavy lifting and that generally Car Washers are not required to load and unload trucks. She also testified, however, that as a combined Clerk/Car Washer, she could be required to load and unload trucks.
Mr. Supinski believes that the Feeder position (tractor-trailer) does not require heavy lifting. (Supinski Dep. (Workers' Comp.), Dkt. Entry 81-15, at 2.) Although he acknowledged that the position required unloading trailers, he thought he would be able to perform the position with his limitations. He admitted, however, that he had never performed that job. Mr. Supinski also thought he could perform the Car Washer position. In his affidavit submitted in opposition to the summary judgment motion, he stated that "[t]here is no essential functions of the Car Washing position that I could not do." (Supinski Aff., Dkt. Entry 83-2, ¶ 10.) As noted above, Mr. Supinski had performed the Car Washer position when he began working for UPS in the late 1970's. (Supinski Dep. (Workers' Comp.), Dkt. Entry 81-15, at 5.)
On March 14, 2007, Plaintiff filed an Amended Complaint in Supinski I, asserting the following Counts: (1) failure to accommodate and retaliation under the PHRA against UPS; (2) wrongful discharge against UPS;*fn4 (3) failure to accommodate and retaliation under the ADA and PHRA against UPS; and (4) an ongoing pattern of discrimination in violation of the PHRA against UPS and two UPS employees. Mr. Supinski contended that he was covered by the ADA and PHRA because either his physical condition substantially impaired his ability to engage in a major life activity, or UPS regarded him as having such a condition.
On July 30, 2007, UPS and the individual Defendants filed a Joint Motion for Summary Judgment. (Dkt. Entry 37.) In a Report and Recommendation filed on February 13, 2008, the Magistrate Judge to whom Supinski I had been referred for pretrial management proposed that the summary judgment motion be granted. (Dkt. Entry 57.) On February 25, 2008, Plaintiff submitted objections to the Report and Recommendation. Two days later, Plaintiff commenced his second disability discrimination action, docketed in this Court to No. 3:08-CV-00371 (Supinski II), complaining that UPS had wrongfully failed to place him in positions that had become available after 2005. The assigned Magistrate Judge stayed litigation in Supinski II pending the outcome of the summary judgment motion in Supinski I.
By Memorandum and Order dated January 16, 2009, I adopted in part the Magistrate Judge's Report and Recommendation in Supinski I. (Mem. & Ord., Dkt. Entry 62.) As to the question of whether or not Mr. Supinski was actually disabled, I found that, "as a matter of law, Mr. Supinski does not have an impairment that substantially limits a major life activity. . . ." (Id. at 11.) Likewise, as to Mr. Supinski's retaliation claim, I found that Mr. Supinski could not show that UPS retaliated against him for requesting that his impairments be accommodated by reinstatement to a position less demanding than Car Package Driver. (Id. at 17.) Summary judgment was granted on the claims against the individual Defendants because Mr. Supinski failed to show any direct discrimination on their part and neither of them exercised decision making authority with respect to Mr. Supinski's requests for an accommodation. (Id. at 18.) As to the "regarded as disabled" claim against UPS, however, I found:
Mr. Supinski has done enough to throw into doubt the perceived disability issue in this case. He has presented evidence that he sought several positions at the local UPS facility that would seem to be less physically demanding than the position he held at the time of his injury. For instance, according to the UPS job descriptions submitted as part of the record in this matter, the position of "car washer" would involve lifting no more than fifty pounds. Plaintiff applied for this position. In this context, the statement made by an employee of UPS to Mr. Supinski after he sought an accommodation that "we don't bring cripples back," (Dkt. Entry 58-2 at 1), could support an inference that UPS regarded even employees with mild impairments such as Mr. ...