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Semcheski v. Cunningham Lindsey U.S., Inc.

United States District Court, M.D. Pennsylvania

July 13, 2018

EUGENE SEMCHESKI, Plaintiff
v.
CUNNINGHAM LINDSEY U.S., INC., Defendant

          MEMORANDUM

          JAMES M. MUNLEY, JUDGE

         Before 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.

         Background

         Prior 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”) ¶ 1).[1] 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).

         In 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).

         On 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.[2] (Id. at 22). In response, the defendant agreed to honor the plaintiff's restrictions, noting that:

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).

         Upon 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 FMLA[3] and short-term disability leaves. (Id.)

         Plaintiff 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's list.

         Nevertheless, 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.)

         Based 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.

         Upon 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.

         Jurisdiction

         Because 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 Constitution.”).

         Legal Standard

         Granting 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).

         In 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.

         Discussion

         As 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.

         I. ADA Claims

         The ADA 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 claim.

         A. Disability Discrimination

         To 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 rejection.” Id.

         For a 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.

         1. Qualifying Disability

         To 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)).

         In the 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 ...


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