United States District Court, M.D. Pennsylvania
M. MUNLEY, JUDGE
the court is a motion for summary judgment filed by Defendant
Cunningham Lindsey U.S., Inc., in this employment
discrimination action. The matter has been fully briefed and
is ripe for disposition.
to initiating this lawsuit, plaintiff worked as an insurance
adjuster for Defendant Cunningham Lindsey, U.S., Inc. (Doc.
22-30, Def. Stmt. of Mat. Facts (“SOF”) ¶
He began his employment with the defendant in 2011, when the
defendant acquired the loss adjusting unit of plaintiff's
former employer, GAB Robbins. (Id.) In his capacity
as an insurance adjuster, plaintiff was responsible for
handling claims of damage to insured property by traveling to
and inspecting the property, evaluating the cost of repair or
replacement, and providing a report to the insurance company.
(Id. ¶ 3). At the time of the GAB Robbins
acquisition, plaintiff was fifty-nine (59) years old.
(Id. ¶ 2).
2011, the plaintiff generated the least revenue of the
adjusters in his region. (Id. ¶ 12). His
revenue generation continued to decline in 2012; his monthly
average dropped approximately 23% from the previous year,
falling below profitability guidelines. (Id. ¶
¶ 14, 17). As a result, on August 1, 2012, the defendant
reduced the plaintiff's salary from $57, 501 to $43, 000.
(Id. ¶ 18).
August 3, 2012, two days after plaintiff's compensation
was reduced, plaintiff was involved in an automobile
accident. (Id. ¶ 19). Due to injuries sustained
in the accident, plaintiff took off several weeks of work to
recover. (Id. ¶ 20). He returned to work on
September 20, 2012, and informed the human resource director
that he required certain accommodations as a result of knee
problems. (Id. ¶ 21). Specifically, the
plaintiff provided documentation indicating that he required
light duty work in the form of a permanent restriction of
less than two hours of driving per shift, and a maximum of
one hour of ladder usage. (Id. at 22). In response, the
defendant agreed to honor the plaintiff's restrictions,
This is a temporary accommodation, not a permanent
position. It was created to assist you while you are
recovering. It is with the understanding that after each
future doctor visits [sic] you will provide a medical update
indicating either a release to perform the essential
functions of your position, or information describing updated
functional limitations, so that a determination can be made
regarding continuation of the temporary accommodation.
(Id. ¶ 23) (emphasis in original).
his return, plaintiff's assignments were reassessed to
comply with his restrictions. (Id. ¶ 30).
Approximately two-thirds of the claims that he was handling
prior to his accident required him to drive more than his
restrictions allowed. (Id.) Thus, plaintiff's
workload significantly decreased. (Id.) Two months
later, on November 20, 2012, the human resource director for
the defendant contacted the plaintiff and informed him that
the company could not continue to accommodate his medical
restrictions. (Id. ¶ 31). The director informed
the plaintiff that the defendant intended to place him on
and short-term disability leaves. (Id.)
contested this decision, and presented the defendant with a
list of thirty-five insurance claims that arose in the
preceding months which were within his driving restrictions
that he alleges he could have been assigned. (Id.
¶ 32). The defendant disputes the accuracy of
plaintiff remained on FMLA and short-term disability leaves
for the remainder of 2012 through 2013. (Id. ¶
45). In January 2014, plaintiff exhausted his FMLA and
short-term disability leaves. Upon the exhaustion,
plaintiff's counsel confirmed to the defendant that
plaintiff's necessary accommodations remained the same.
(Id. ¶ 49). The defendant subsequently
terminated plaintiff's employment. (Id.)
upon these facts, plaintiff filed a ten-count complaint on
August 1, 2016. The complaint raises the following causes of
action: Count I, discrimination on account of disability
under the Americans With Disabilities Act (hereinafter
“ADA”); Count II, failure to accommodate under
the ADA; Count III, retaliation under the ADA; Count IV, age
discrimination in contravention of the Age Discrimination in
Employment Act (hereinafter “ADEA”); Count V,
retaliation under the ADEA; Count VI, discrimination on
account of disability under the Pennsylvania Human Relations
Act (hereinafter “PHRA”); Count VII, failure to
accommodate under the PHRA; Count VIII, retaliation under the
PHRA; Count IX, age discrimination under the PHRA; and Count
X, a second count of retaliation under the PHRA.
completion of discovery, the defendant filed the instant
motion for summary judgment. (Doc. 22). Plaintiff filed a
brief in opposition on March 9, 2018, (Doc. 24), bringing the
case to its present posture.
this case is brought pursuant to the ADA, 42 U.S.C. §
12101, et seq. and the ADEA, 29 U.S.C. § 621
et seq., the court has jurisdiction pursuant to 28
U.S.C. § 1331. (“The district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
States.”). The court has supplemental jurisdiction over
plaintiff's state-law claims pursuant to 28 U.S.C. §
1367(a). (“In any civil action of which the district
courts have original jurisdiction, the district courts shall
have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. See Knabe v.
Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing
Fed.R.Civ.P. 56(C)). “[T]his standard provides that the
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)
(emphasis in original).
considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party
opposing the motion. Int'l Raw Materials, Ltd. v.
Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990).
The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a
verdict for the non-moving party. Anderson, 477 U.S.
at 248 (1986). A fact is material when it might affect the
outcome of the suit under the governing law. Id.
Where the non-moving party will bear the burden of proof at
trial, the party moving for summary judgment may meet its
burden by establishing that the evidentiary materials of
record, if reduced to admissible evidence, would be
insufficient to carry the non-movant's burden of proof at
trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986).
Once the moving party satisfies its burden, the burden shifts
to the nonmoving party, who must go beyond its pleadings, and
designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories
demonstrating that there is a genuine issue for trial.
Id. at 324.
noted above, plaintiff's complaint raises several
different causes of action, and the defendant seeks summary
judgment on all counts. We will address the claims in turn.
is one statutory scheme, but it provides more than one cause
of action. Here, plaintiff has raised causes of action under
the ADA for disability discrimination, failure to
accommodate, and retaliation. The defendant moves for summary
judgment on all three causes of action. We start our analysis
with a review of plaintiff's disability discrimination
state a claim for disability discrimination under the ADA,
plaintiff must establish that: (1) he has a disability under
the ADA; (2) he was otherwise qualified to perform the
essential functions of the job, with or without reasonable
accommodations by the employer; and (3) he suffered an
adverse employment action as a result of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). If the plaintiff succeeds, the burden of production
shifts to the defendant to “articulate some legitimate,
nondiscriminatory reason for the employee's
plaintiff to defeat a motion for summary judgment when the
defendant points to a legitimate, non-discriminatory reason
for its action, the plaintiff must point to some evidence,
direct or circumstantial, from which a factfinder could
reasonably either (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's
action. Ezold v. Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992). If the
plaintiff has pointed to evidence sufficient to discredit the
defendant's proffered reasons, to survive summary
judgment the plaintiff need not also come forward with
additional evidence of discrimination beyond his prima facie
case. Fuentes v. Perskie, 32 F.3d 759 (3d Cir.
1994); Anderson v. Baxter Healthcare Corp., 13 F.3d
1120, 1122-24 (7th Cir. 1994); Washington v.
Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993). This
burden-shifting framework is referred to as the
“McDonnell Douglas test.” Here, the
defendant disputes the first two elements of the
plaintiff's prima facie case. First, the defendant argues
that the plaintiff is not disabled within the meaning of the
ADA. Second, the defendant argues that the plaintiff was not
able to perform the essential functions of his job as an
insurance adjuster, and the accommodations that he asked for
were not reasonable in light of the company circumstances. We
first will address whether the plaintiff's knee injury
qualifies him as disabled for the purposes of the ADA.
qualify as disabled under the ADA, plaintiffs must establish
that (1) they have a physical or mental impairment that
substantially limits one or more of their major life
activities, (2) there is a record of such impairment, or (3)
they are regarded as having such an impairment. 42 U.S.C.
§ 12102(1). The federal regulations provide that major
life activities include: “[c]aring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, [and]
breathing....” 42 U.S.C.A. § 12102(2)(A). The
Third Circuit has generally explained that, “
‘major life activities' are those basic activities
that the average person in the general population can perform
with little or no difficulty.” Marinelli v. City of
Erie, 216 F.3d 354, 361 (3d Cir. 2000) (quoting 29
C.F.R. App. § 1630.2(i)(1999)).
instant matter, we find that the plaintiff does qualify as
disabled for the purposes of the ADA. The plaintiff has
sufficiently demonstrated that a knee replacement in 2007 and
car accident in 2012 have significantly impacted the mobility
of his knee joint, and have inhibited major life activities
such as walking and standing. Plaintiff contends that for the
last several years, as a result of his knee replacement, he
has experienced difficulty climbing, walking, and driving for
lengthy periods of ...