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Ciferni v. Madison Ltd

September 29, 2010

JAMES CIFERNI, PLAINTIFF,
v.
MADISON LTD, DOMINIC GREICO, AND ROBERT SMITH, DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is the Motion for Summary Judgment filed by Defendants Madison, LTD ("Madison"), Dominic Gricco (identified in Plaintiff's Complaint as "Dominic Greico") ("Gricco") and Robert Smith ("Smith") (collectively, "Defendants"). For the reasons set forth below, Defendants' Motion will be granted.

I. FACTS*fn1

Madison provides mechanical and electrical contracting services, including machine welding, structural steel erection, water treatment systems, tower modifications, pipe fabrication and scaffold services, among other services. It provides these mechanical and electrical contracting services for large-scale projects, including the construction of oil refineries. During the relevant time period, Gricco, a Madison employee, served as General Foreman for a Madison project known as the Sun Oil Project at the Sunoco Refinery in Philadelphia, Pennsylvania (the "Refinery").*fn2 At the Refinery, Madison erected towers on which it built heaters and reactors. As General Foreman, Gricco was responsible for the safe and efficient completion of the Sun Oil Project as well as for the safety and well-being of the employees on the job. Smith, also a Madison employee, served as Field Safety Supervisor during the relevant time period. In that role, he was responsible for training individual employees on safety restrictions and auditing safety compliance.

In 2005, while working for another employer, Plaintiff James Ciferni ("Ciferni") injured his left hand in a welding accident. After the accident, Ciferni spent approximately eighteen months out of work, followed by several weeks of "light duty." By 2007, he returned to work as a welder, subject to certain medical restrictions. Ciferni's medical restrictions, as set forth by his physician, Dr. Scott Jaeger ("Dr. Jaeger"), were modified over time. On March 28, 2008, Dr. Jaeger set forth the following restrictions: (1) "sedentary work (lifting and/or carrying less than 10 pounds occasionally and 5 pounds frequently throughout the work day)"; (2) "no repetitive activities of the left upper extremity"; (3) "no ladders"; (4) "no overtime"; (5) "no vibrating tools"; (6) "no extreme temperature exposure (less than 60 degree F)"; and (7) "no left hand gripping." (Defs.' Mot. Summ. J., Ex. F.) In further describing Ciferni's medical status, Dr. Jaeger opined:

[Ciferni] reached a plateau in his recovery and is not capable of returning to work as a boiler maker without restrictions. While he has certainly improved considerably, the work that he performed required a truly high performance that he is no longer able to attain and these restrictions will be permanent and no further treatment will make a significant difference. (Id. at 4.) Dr. Jaeger also stated that Ciferni "is not able to find someone who will hire him because of some of the restrictions that are necessary for his own health and well being and the well being of those around him." (Id. at 5.)

In May 2008, Madison placed a call to the local union hall requesting boilermakers to weld a heater and reactor on an elevated platform on a tower. At that point, Madison had nearly completed the Sun Oil Project and filled all of the positions, except the stainless steel tube welder position for the heater construction. Ciferni responded to Madison's call and arrived on site on May 22, 2008. He filled out new hire paperwork, received training on safety requirements and participated in orientation programs that included instruction on Madison's policies prohibiting discrimination and retaliation. After he completed these programs, but before he began any work, Ciferni handed Smith his list of medical restrictions and stated, "this doesn't mean that I [can't] do all those things." Smith then passed along Ciferni's medical restrictions to Gricco. Because the ability to climb ladders and use vibrating tools was essential to the stainless steel tube welder position, Gricco informed Ciferni that he could not allow him to work at the Sun Oil Project in that capacity. Ciferni then left the premises, contacted his union representative and filed a grievance related to his discharge.

On December 24, 2008, Ciferni filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), claiming that Madison retaliated against him because of his alleged disability. On August 6, 2009, Ciferni filed the instant action, bringing claims against Madison for disability discrimination and retaliation under the Americans With Disabilities Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 353 (2008) (the "ADAAA") (Counts I and II), and claims against Madison, Gricco and Smith for disability discrimination and retaliation under the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951 et seq. (the "PHRA") (Counts III and IV).

On June 11, 2010, Ciferni was deposed. At his deposition, Ciferni stated that he has a "permanent partial disability" in that the gripping function of the ring and pinky fingers of his left hand "is not full." (Ciferni Dep. 52:10-17, June 11, 2010.) The deposition testimony continued:

Q: How does this impairment limit you?

A: It limits some of my gripping ability. My gripping ability is not equal to my right hand. But who's to say my left hand, at gripping capacity of eighty pounds, isn't greater than anybody else's in this room --

Q: Well, your doctor.

A: -- unless I'm tested? It's a disability of my own, not that it's a national disability. If I'm not tested and if every guy on the job isn't tested, who['s] to say my eighty-pound gripping ability isn't equal or greater than ninety percent of the other boilermakers on the job?

Q: Well, your doctor is saying that you can't do it, right?

A: He's comparing my left to right.

Q: Your doctor is saying that you can't lift -- that you shouldn't be lifting or carrying more than ten pounds occasionally and five pounds frequently throughout the day, right?

A: With my left hand.

Q: Okay. So what sorts of activities are you limited in doing in your regular life? Is there ...


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