The opinion of the court was delivered by: Anita B. Brody, J.
Plaintiff Brian Braheny brings suit against the Commonwealth of Pennsylvania alleging discrimination in violation of the Rehabilitation Act ("RA"), 29 U.S.C. § 794 et seq., and David Diguglielmo, in his official capacity as the Superintendent at the State Correctional Institution at Graterford ("Graterford"), alleging discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Braheny alleges that during his employment by the Pennsylvania Department of Corrections ("PDOC") as a corrections officer at Graterford, Defendants failed to accommodate his disability in violation of federal law. Defendants move for summary judgment on all claims.
Braheny suffers from a condition known as Lymphocytic Colitis ("colitis"), the main symptom of which is uncontrollable diarrhea. As a result of his colitis, Braheny submitted a Request For Accommodation Form to the PDOC, requesting job assignments with ready access to a bathroom. The PDOC denied his request. Braheny continued to work at Graterford without an accommodation; however, his attendance slipped. The PDOC eventually terminated Braheny for unacceptable attendance.
Summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Id.
The moving party bears the initial burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. In ruling on a motion for summary judgment, the court must draw all inferences from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving party may not "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claims. Fireman's Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).
In essence, the inquiry at summary judgment 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." Anderson, 477 U.S. at 251-52.
Defendants move for summary judgment because they contend that Braheny
cannot establish a prima facie case of disability discrimination. To
establish a prima facie case of
discrimination a plaintiff must show: "(1) he is a disabled person
within the meaning of the ADA; (2) he is otherwise qualified to
perform the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) he has suffered an otherwise
adverse employment decision as a result of discrimination." Gaul v.
Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998) (ADA claim);
accord Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996) (applying
same prima facie elements to a claim under the RA).*fn1
Defendants assert that Braheny cannot demonstrate any element
of his prima facie case.
A. Is Braheny a Disabled Person?
The ADA defines a disability as: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment . . . ." 42 U.S.C. § 12102(2).*fn2 Braheny alleges that his colitis qualifies as a disability under subsection A. Defendants do not appear to argue that Braheny's colitis was not an impairment. Rather, they argue that Braheny's colitis did not substantially limit a major life activity. Braheny asserts that the major life activity affected by his colitis is his ability to eliminate waste from his body. The Third Circuit has already held that elimination of waste from the blood is a major life activity. Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 385 (3d Cir. 2004); accord Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 251 (4th Cir. 2006) (holding that elimination of bodily waste is a major life activity). Additionally, the Sixth Circuit has expressly held that waste elimination, specifically the ability to control one's bowels, can be a major life activity. Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999). This precedent sufficiently establishes that waste elimination is a major life activity. Thus, the only remaining question is whether Braheny's colitis substantially limited his ability to eliminate waste.
The EEOC regulations define "substantially limits" as follows: "(i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity."
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999) (quoting 29 C.F.R. § 1630.2(j)(1)). Although Braheny is able to eliminate waste, when symptomatic he suffers from completely "uncontrollable diarrhea," and has gone through periods in which he has needed to go to the bathroom between thirty and sixty times a day. Pl.'s Ex. 1, at 20, 34. Additionally, his colitis resulted in "several accidents at work." Pl.'s Ex. 3. While Braheny's colitis is now under much better control and flare ups occur with much less frequency than they did while Braheny was employed as a corrections officer, his "daily routine in general, every single day revolves around [his] condition." Pl's Ex. 1, at 111. A reasonable jury could conclude that Braheny is "[s]ignificantly restricted as to the condition, manner or duration" under which he can eliminate waste "as compared to the condition manner, or ...