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Rocco v. Gordon Food Serv.

United States District Court, W.D. Pennsylvania

February 10, 2014

Herbert ROCCO, Plaintiff,

For HERBERT ROCCO, Plaintiff: Gregory G. Paul, LEAD ATTORNEY, Morgan & Paul, PLLC, Sewickley, PA.

For GORDON FOOD SERVICE, Defendant: Alan T. Silko, Edward I. Levicoff, LEAD ATTORNEYS, Levicoff, Silko & Deemer, Pittsburgh, PA; Brendan P. Feheley, Timothy T. Tullis, PRO HAC VICE, Kegler Brown Hill & Ritter Co. LPA, Columbus, OH.


Page 423


Joy Flowers Conti, Chief United States District Judge.

I. Introduction

Before the court is a motion for summary judgment (ECF No. 45) filed by defendant Gordon Food Service (" defendant" ). Plaintiff Herbert Rocco (" plaintiff" ) filed a two-count amended complaint asserting claims under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12101-12213; Rehabilitation Act, 29 U.S.C. § § 701-796l ; and Pennsylvania Human Rights Act (" PHRA" ), 43 PA. STAT. § § 951-963, for termination and failure to accommodate (count 1) and retaliation (count 2). Defendant moved to dismiss the retaliation claims. The court granted the motion with respect to the retaliation claims under the ADA and PHRA. The court permitted plaintiff to conduct additional discovery about whether defendant receives federal financial assistance and is therefore subject to the Rehabilitation Act. Plaintiff admits that defendant does not receive federal financial assistance and proceeds under the ADA and PHRA alone. (ECF No. 50, at 12.)

II. Factual Background

A. Employment and Termination

Defendant employed plaintiff as a delivery driver fro 1999 to 2007 and, after plaintiff resigned and was rehired, from 2008 to 2010. (Combined Concise Statement of Material Facts ¶ ¶ 1, 3, 6-7, ECF No. 55.) As a delivery driver, plaintiff drove a delivery truck and unloaded cases of frozen and refrigerated food at customers' places of business. ( Id. ¶ 4.) The delivery driver position required demanding physical effort, including lifting up to one hundred pounds. ( Id. ¶ 5.)

On May 11, 2009, plaintiff injured his knee while playing recreational tackle football. ( Id. ¶ 8.) Plaintiff was referred to Dr. David Stone (" Dr. Stone" ), who diagnosed plaintiff's injury as a sprained medial collateral ligament and torn medial patellofemoral ligament. ( Id. ¶ ¶ 10-11.)

The injury rendered plaintiff unable to perform his job duties, and defendant placed plaintiff on medical leave under the Family and Medical Leave Act (" FMLA" ), 29 U.S.C § § 2601-2654. ( Id. ¶ 24.) Defendant's policy protected the jobs of employees injured off duty for twelve weeks, as required by the FMLA, but defendant did not extent protection beyond twelve weeks. ( Id. ¶ 26.) Plaintiff's protected FMLA leave expired in August 2009, at which time he was still physically unable to return to work. ( Id. ¶ 31.) Defendant's practice, however, was to wait until an employee was cleared by a physician to return to work before deciding whether to terminate the employee, which permitted employees to continue remain on medical leave. ( Id. ¶ ¶ 27-28.) While on medical leave, plaintiff received compensation from defendant's disability insurance plan. ( Id. ¶ 25.)

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On October 19, 2009, plaintiff was examined by Dr. Robin West (" Dr. West" ), a partner of Dr. Stone. ( Id. ¶ 14.) From her examination, Dr. West concluded that plaintiff was able to return to work. ( Id. ¶ 32.) Defendant scheduled a functional capacity examination to determine whether plaintiff could perform the heavy lifting required by the delivery driver position. ( Id. ¶ 33.) The functional capacity examination showed that plaintiff was capable of performing medium-duty work, but not the heavy-duty work required by the delivery driver position. ( Id. ¶ 38-39.) There were no medium-duty jobs available at that time, so plaintiff remained on medical leave. ( Id. ¶ 40.)

On January 21, 2010, plaintiff was cleared to resume heavy-duty work. ( Id. ¶ 44.) Defendant terminated plaintiff that same day. ( Id. ¶ 46.) The separation notice prepared by defendant's human resources department indicated the reason for termination was that no delivery driver positions were available. ( Id. ¶ ¶ 46, 68.) Heather Edwards (" Edwards" ), a senior human resource generalist for defendant, scratched out " eligible for rehire" on the separation notice and indicated that plaintiff was ineligible for rehire due to work history and performance. ( Id. ¶ ¶ 70-71.) Edwards testified she could not remember why she made the change from eligible to ineligible. ( Id ...

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