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Raymond Bailey v. Greenwich Terminals

January 25, 2012

RAYMOND BAILEY
PLAINTIFF,
v.
GREENWICH TERMINALS, LLC, DEFENDANT.



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

MEMORANDUM

I. Introduction

This is an employment discrimination case. Plaintiff Raymond Bailey alleges that defendant Greenwich Terminals, LLC, discriminated against him on the basis of a disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Presently before the Court is Defendant's Motion for Summary Judgment. For the reasons that follow, the Court grants the motion.

II. Background*fn1

A.The Parties

Plaintiff, a male in his mid-fifties, has been a union longshoreman in the Port of Philadelphia since 1976. (Statement Material Facts Supp. Def.'s Mot. Summ. J. ("Def. Material Facts") ¶¶ 6--7.) Plaintiff originally belonged to International Longshoremen's Association ("ILA") Local 1332, a union for carloader coast-wide longshoremen. (Id. ¶ 8; Raymond Bailey Dep. ("Bailey Dep."), Def.'s Mot. Summ. J. Ex. C, at 12.) Around 1997, Local 1332 merged into Local 1291, which is the deep sea and marine terminal union. (Def. Material Facts ¶¶ 6, 8; Bailey Dep. 13.) The former members of Local 1332 continued to do the same work and were identified as "1291-T," which "indicated the hiring seniority of the 1332 members" compared to 1291 members. (Def. Material Facts ¶ 9; Bailey Dep. 15.)

Defendant operates the Packer Avenue Marine Terminal, a port in South Philadelphia where container ships load and unload freight. (Def. Material Facts ¶¶ 2, 5, 17.) Defendant and other area terminal operators belong to the Ports of the Delaware River Marine Trade Association ("PMTA"), which engages in collective bargaining with the local ILA unions on behalf of the terminal operators. (Id. ¶ 5.)

B.The Terminal List

Longshoremen obtain jobs of variable length at PMTA terminals, including the Packer Avenue Marine Terminal, through "hires." (Bailey Dep. 17--22.) The "hire" process is governed by an intricate set of contractual rules and informal practices. (Id.)*fn2 Some terminals, including the Packer Avenue Marine Terminal, maintain a "terminal list." (Bailey Dep. 31.) Longshoremen who appear on the terminal list for a given terminal have hiring priority and get work "virtually every day" at that terminal. (Def. Material Facts ¶ 15; Pl. Answer Opp'n Mot. Summ. J. Def. Greenwich Terminals, LLC ("Pl. Ans.") ¶ 15.) Although longshoremen can work at different PMTA terminals, they can only be on the terminal list at one terminal. (Bailey Dep. 31.) Some longshoremen prefer to be on a terminal list because it generally allows them to be first in line for a hire, to be hired without being physically present at the PMTA/ILA Hiring Center, to preference a specific task assignment within the hire, and to take time off without losing their position on a hire. (Def. Material Facts ¶¶ 21--22; Pl. Ans. ¶¶ 21--22; Bailey Dep. 36--40.) Because terminal list employees work consistently on a single terminal's hires, the employer can count on a supply of skilled and experienced workers. (Bailey Dep. 47--48.) Longshoremen who are not on the terminal list are selected for hires only if there is sufficient work. (Id. at 29.) Although the parties dispute whether the Packer Avenue Marine Terminal terminal list "belongs" to defendant or to the terminal itself, they agree that defendant controls the list. (Id. at 43, Pl. Ans. ¶ 17.)

C.Defendant's Terminal List Status at the Packer Avenue Marine Terminal

In 2006, plaintiff sought a transfer from the terminal list for the Tioga Terminal to the terminal list for the Packer Avenue Marine Terminal. (Bailey Dep. 32.) Defendant denied the request on the ground that the Packer Avenue list was "frozen." (Def. Material Facts ¶ 23, Pl. Ans. ¶ 23.) Local 1291 asked defendant to open the list, and defendant agreed to add plaintiff and another longshoreman to that list if they signed an Employee Agreement. (Def. Material Facts ¶ 25, Pl. Ans. ¶ 25.) Plaintiff declined. (Def. Material Facts ¶ 26.) Because plaintiff had some seniority as a "1291-T" cardholder, he continued to work at the Packer Avenue Marine Terminal, even though he did not receive the benefits of being on the terminal list. (Id. ¶ 29.)

On May 22, 2007, after plaintiff refused an assignment, defendant terminated plaintiff "from all future work opportunities" with defendant. (May 24, 2007, Letter from John Burleson ("5/24/07 Burleson Letter"), Def. Mot. Summ. J. Ex. I, at 1.) Local 1291 filed a grievance on plaintiff's behalf, which the union and defendant settled by adding plaintiff to the terminal list for the Packer Avenue Marine Terminal. (2007 Settlement Agreement, Def. Mot. Summ. J. Ex. J, at 3--4.) As part of the settlement, plaintiff agreed that he would "work the job opportunities available in a manner consistent with other employees on the terminal list" and that he "underst[ood] that failure to do so, unless excused by his foreman, and subject to contractual time off with notice," could be grounds for removal from the terminal list. (Id. at 4.)

D. Injury and Treatment Through January 2009

Plaintiff injured his left shoulder and upper back while driving a top-pick machine*fn3 at work on August 20, 2008; he was "attempting to avoid an on-coming 18-wheeler [and] . . . struck a container." (Def. Material Facts ¶ 35, Pl. Ans. ¶ 35.) Plaintiff, who had "no previous significant shoulder or back problem[s]," experienced pain, a limited range of motion, and "some numbness and tingling." (8/21/08 Report of Doctor Li, Def.'s Mot. Summ. J. Ex. K, at 1.) That day, plaintiff saw a doctor who opined that plaintiff could work "light duty" and could "still drive [the top-pick] machine" but should "avoid overhead reaching and repetitive turning of the shoulder joint." (Id. at 2; 8/21/08 Restriction Evaluation, Def.'s Mot. Summ. J. Ex. L, at 1.) Plaintiff returned to work but experienced "increased discomfort" while driving the top-pick. (8/25/08 Report of Doctor Gernerd, Def.'s Mot. Summ. J. Ex. M, at 1.) On August 25, 2008, plaintiff stopped working and began receiving workers' compensation insurance payments; these payments continued until February 26, 2009. (10/24/08 Notice of Final Payment, Def.'s Mot. Summ. J. Ex. N, at 1; Def. Material Facts ¶ 50; Pl. Ans. ¶ 50.)*fn4

Plaintiff began treatment with Doctor Mario Arena, an orthopedist, on September 11, 2008. (9/11/08 Arena Eval., Pl. Ans. Ex. C, at 1.) Doctor Arena provided copies of all of his evaluations to Sarah Yang, an agent for Lamorte Burns & Co., Inc., defendant's workers' compensation company. (See, e.g., 9/11/08 Arena Eval., Pl. Ans. Ex. C, at 1.) From September to late November, 2008, Doctor Arena's evaluations recommended that plaintiff could handle no more than "10 [pounds] with both hands" and could "drive a power steering car or small truck" but not "operat[e] any heavy equipment." (E.g., 10/2/08 Arena Eval., Pl. Ans. Ex. C, at 2.) Doctor Arena's notes from this time period show that, on at least two occasions, plaintiff tried to return to work in jobs other than driving the top-pick. (See 10/22/08 Arena Eval., Pl. Ans. Ex. C, at 1 ("[Plaintiff] returned to work in a restricted capacity and was placed on a sanitation crew and was unable to lift the trashcans. He therefore was working as a helper for a chock operator putting pieces of wood underneath and removing pieces of wood from the top of cargo containers noting that these could weigh up to 25--30 [pounds] . . .").) However, when plaintiff returned to work, he irritated his injury and "got complaints from the foreman." (Id. at 1; 11/20/08 Arena Eval., Pl. Ans. Ex. C, at 1--2; Bailey Dep. 99.) In his November 20, 2008, evaluation, Doctor Arena requested that Ms. Yang provide "a specific job description to sign off on prior to [plaintiff] returning to any restricted duties." (11/20/08 Arena Eval., Pl. Ans. Ex. C, at 1--2.)

On December 3, 2008, Doctor John Bednar, a hand specialist, examined plaintiff. (12/9/08 Bednar Letter, Pl. Ans. Ex. B, at 1--4.) Doctor Bednar concluded that plaintiff suffered from two separate medical conditions: (1) cervical radiculitis in his left shoulder and upper back, which his work accident caused, and (2) carpal tunnel syndrome in his left hand, which existed prior to the accident and was "not causally related" to his work injury. (Id. at 3.) On December 17, 2008, having reviewed Doctor Bednar's report, Doctor Arena evaluated plaintiff as "clear for a light level of activity with handling up to 20 [pounds] with no overhead lifting" but no "activities at unprotected heights." (12/23/08 Arena Eval., Pl. Ans. Ex. C, at 1). However, Doctor Arena opined that his assessment was "not based on [plaintiff's] hand symptomotology, which [was] unrelated to his work injury." (Id. at 1.)

Plaintiff "want[ed] to obtain a second opinion on his condition" and, although he wanted to be evaluated by Doctor Roy Lefkoe, he "was set up by his insurance carrier to see Dr. [Stuart] Trager." (See 1/7/09 Arena Eval., Pl. Ans. Ex. C, at 1; 1/21/09 Arena Eval., Pl. Ans. Ex. C, at 1.) Doctor Trager, an orthopedist, reviewed plaintiff's medical records and evaluated plaintiff on January 22, 2009. (2/9/09 Letter from Doctor Trager to Lisa Rich, Pl. Ans. Ex. B, at 1--5.) Doctor Trager opined that "[plaintiff] should be capable of return to regular duty work" but that it was "reasonable" to limit plaintiff "to use the left upper extremity below shoulder height" to avoid "exacerbat[ing] . . . underlying . . . arthritis and reported symptoms" that were unrelated to the August 20, 2008, injury. (Id. at 4.) Specifically, Doctor Trager wrote that defendant's lifting should ...


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