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Bender v. Norfolk Southern Corp.

United States District Court, M.D. Pennsylvania

January 14, 2014

ALEX BENDER, Plaintiff

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For Alex Bender, Plaintiff: Dennis J. Shatto, Cleckner and Fearen, Harrisburg, PA.

For Norfolk Southern Corporation, Defendant: Edward S Smith, LEAD ATTORNEY, Fisher & Phillips, LLP, Atlanta, GA; Myra K. Creighton, LEAD ATTORNEY, Fisher & Phillips LLP, Atlanta, GA; Todd Alan Ewan, Fisher & Phillips, LLP, Radnor, PA.

For Norfolk Southern Railway Company, Corporation Service Company, Defendant: Edward S Smith, LEAD ATTORNEY, Fisher & Phillips, LLP, Atlanta, GA; Myra K. Creighton, Fisher & Phillips LLP, Atlanta, GA; Todd Alan Ewan, Fisher & Phillips, LLP, Radnor, PA.


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Sylvia H. Rambo, United States District Judge.

In this civil action, Plaintiff asserts claims for discrimination and failure to accommodate in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 (" ADA" ), based on Defendant medically disqualifying him from the position of railroad conductor due to his Type I insulin dependent diabetes. Presently before the court are two motions, both of which were filed by Defendant. (Docs. 24 and 35.) The first motion, Defendant's motion for summary judgment (Doc. 24), seeks judgment as a matter of law on the basis tat Plaintiff's lack of control and stability over his diabetes rendered him unqualified to perform the essential functions of the conductor position in a safe manner. The second motion, Defendant's motion to strike (Doc. 35), seeks to exclude an exhibit and certain portions of a declaration offered by Plaintiff in opposition to the motion for summary judgment. For the following reasons, the court will grant in part and deny in part Defendant's motion to strike, and will deny Defendant's motion for summary judgment in its entirety.

I. Procedural Background

Plaintiff Alex Bender (" Plaintiff" ) initiated this action by filing a complaint on June 22, 2012 (Doc. 1), and an amended complaint on October 31, 2012 (Doc. 13), alleging that Norfolk Southern Corporation and Norfolk Southern Railway Company (collectively " Defendant" ) discriminated against him on the basis of his Type I diabetes by rescinding a contingent offer of employment based upon review of Plaintiff's pre-placement physical examination, and further alleging that Defendant refused to grant Plaintiff reasonable accommodation for his disability. Defendant filed its answer to the amended complaint on November 19, 2012. (Doc. 14.) On

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October 15, 2013, Defendant filed its motion for summary judgment (Doc. 24) and brief in support (Doc. 26), asserting that Plaintiff's claims of discrimination are precluded by Defendant's affirmative defenses of business necessity and direct threat, and because Plaintiff's proposed accommodation was unreasonable and would place an undue hardship on Defendant and its employees. On October 16, 2013, Defendant filed its statement of material facts and supporting exhibits. (Doc. 28.) On November 4, 2013, Plaintiff filed his opposition to the motion for summary judgment (Doc. 29) and response to Defendant's statement of material facts (Doc. 31). Defendant filed a reply brief on November 26, 2013. (Doc. 34.) On November 27, 2013, Defendant filed a motion to strike (Doc. 35) and brief in support (Doc. 37), which sought to strike from the record two attachments submitted in support of Plaintiff's opposition: an article titled, " Diabetes and Employment" (Doc. 29, pp. 21-27 of 27), and portions of the declaration of Charles Heiney (Doc. 31-2, pp. 2-4 of 5). On December 10, 2013, Plaintiff filed an opposition to the motion to strike (Doc. 42), and Defendant filed a reply on December 23, 2013 (Doc. 47). These matters are fully briefed and ripe for disposition.

II. Motion to Strike

A. Legal Standard

Defendant's motion to strike challenges the admissibility of certain documents relied upon in Plaintiff's brief in opposition. Defendant contends that the court should not consider these portions of the record when deciding its motion for summary judgment.

Either party may challenge the admissibility of evidence used to support a motion for summary judgment. See Celotex, 477 U.S. at 324. Rule 56(c)(2) provides, in pertinent part, that " [a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2) (emphasis supplied). Thus, when the admissibility of evidence is challenged, the party relying on the evidence must demonstrate that such evidence is capable of admission at trial before it can be considered by the court on summary judgment. However, this requirement does

not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose her own witnesses. [Rule 56] permits a proper summary judgment motion to be opposed by any materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the showing . . . [that specific facts show there is a genuine issue for trial].

Celotex Corp., 477 U.S. at 324; see also Lin v. Rohm & Haas Co., 293 F.Supp.2d 505, 511 (E.D. Pa. 2003). Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial. See Fed.R.Civ.P. 56(c)(2). Accordingly, the party offering the evidence must demonstrate that it could satisfy the applicable admissibility requirements at trial before the evidence may be used on summary judgment. See Robinson v. Hartzell Propeller, Inc., 326 F.Supp.2d 631, 643 (E.D. Pa. 2004).

B. Discussion

Defendant objects to the admissibility of an article by the American Diabetes Association and certain portions of a declaration cited by Plaintiff in his opposition to Defendant's motion for summary judgment.

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The court will address each document in turn.

1. Article Titled " Diabetes and Employment"

Defendant asserts that the court should strike the article attached to Plaintiff's opposition titled, " Diabetes and Employment" ( see Doc. 29, pp. 21-27), because it is inadmissible hearsay and because Plaintiff has no means to admit it at trial (Doc. 37, p. 2 of 12). Hearsay is an out of court statement that is offered for the truth of the matter asserted. Fed.R.Evid. 801(c). Such a statement is inadmissible, unless it falls under a recognized exception to the prohibition against hearsay. Fed.R.Evid. 802. Inadmissible hearsay should not be considered during summary judgment. Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009). However, if the statement is capable of being admissible at trial, despite it currently being in an inadmissible form, the statement may be considered for purposes of deciding a motion for summary judgment. Howley v. Experian Info. Solutions, Inc., 813 F.Supp.2d 629, 637 (D.N.J. 2011) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1235 n. 9 (3d Cir. 1993)); J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524 (3d Cir. 1990) (citing Williams v. Borough of W. Chester, 891 F.2d 458, 465-66 n. 12 (3d Cir. 1989)).

In order to be considered for summary judgment, the proponent of the alleged hearsay must respond to the hearsay objection by demonstrating that the statement will either be admissible at trial as an exception to hearsay or that the statement is not hearsay. Bouriez v. Carnegie Mellon Univ., Civ. No. 02-CV-2104, 2005 WL 2106582, *5 (W.D. Pa. Aug. 26, 2005) (citing Burgess v. Allstate Ins. Co., 334 F.Supp.2d 1351 (N.D.Ga. 2003)). This rule requires the proponent to demonstrate that there is more than a " mere possibility that the evidence will be admissible at trial." Id. (citing Henry v. Colonial Baking Co. of Dothan, 952 F.Supp. 744 (M.D. Ala. 1996)). This may be demonstrated by the proponent showing some likelihood that the declarant will appear and testify at trial. Howley, 813 F.Supp.2d at 637.

In the matter sub judice, Plaintiff attempts to use the article to support his claim that Defendant's medical guideline concerning individuals with diabetes is not based on current medical knowledge. ( See Doc. 29, p. 3.) Specifically, Plaintiff uses the authors' statements to argue that a hemoglobin A1c test (" HgA1C" )[1] is not useful in determining whether an individual is a safety risk, and to support his proposition that using a diabetic's level of blood sugar " control," or lack thereof, is not relevant to his or her qualifications to safely perform a particular job. ( Id. ) Plaintiff also cites the article in support of his argument that most diabetics can manage their condition in such a manner that there is minimal risk of incapacitation. ( Id. at p. 9.)

Defendant argues that the information contained in the article is hearsay and that Plaintiff is attempting to use the article to prove the truth of the statements contained therein. (Doc. 37, p. 3 of 12.) In addition, Defendant contends that Plaintiff has no means to make the article admissible should the case go to trial as Plaintiff did not provide an expert witness report by the court's scheduling deadline of January 28, 2013, and Plaintiff's treating physician,

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Dr. Caruso, is not an expert witness. ( Id. at p. 4 of 12.)

The court agrees with Defendant and concludes that the article is inadmissible hearsay insofar as Plaintiff purports to use it to prove the truth of the statements contained therein and Plaintiff has no means to make the article admissible at trial. Thus, the court will grant Defendant's motion to strike the article from the record.

2. Declaration of Charles Heiney

Defendant's motion to strike also challenges that admissibility of Charles Heiney's testimony contained in the following paragraphs of his declaration:

Paragraph 7: While there are occasions when a 20-minute uninterrupted meal break is not able to be taken, there is always time for a conductor to eat and drink items brought with him.
Paragraph 11: Conductors working off the extra board do not primarily work nights, weekends and holidays. They are protected by hours-of-service rules.
Paragraph 13: Trains are not traveling under time deadlines. A conductor can consume food or ...

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