Chodnicki v. Old Forge Bank

Filing 45

MEMORANDUM and ORDER denying 29 31 Motions in Limine w/o prejudice; granting in part and denying in part 37 dft's Motion for Summary Judgment--DENIED re pltf's clailms pursuant to the Age Discrimination in Employment Act and GRANTED re pltf's claims pursuant to the Americans w/Disabilities Act. Signed by Honorable James M. Munley on 1/21/09 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOSEPH CHODNICKI, Plaintiff, : No. 3:07cv1112 : : (Judge Munley) : v. : : OLD FORGE BANK, : Defendant : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is defendant's motion for summary judgment (Doc. 31). Having been fully briefed and argued, the case is ripe for disposition. B a c k g ro u n d P la in tiff Joseph Chodnicki was employed as a branch manager at the D e fe n d a n t Bank's Duryea branch. (Defendant's Statement of Facts (Doc. 38) (h e re in a fte r "Defendant's Statement) at ¶).1 He worked there from December 1996 u n til March 2006. (Id.). Plaintiff had previously worked for PNC Bank at the same lo c a tio n . (Id. at ¶ 4). Defendant purchased its Duryea Branch from PNC. (Id.). According to the defendant, after purchasing the Duryea branch, Old Forge c a m e to the conclusion that the staff needed to be reduced for the bank to meet ris in g costs and decreasing revenue. (Id. at ¶ 5). The plaintiff and another employer w e re those whose jobs were to be eliminated. (Id.). Defendant claims that it

The court will cite to the defendant's statement for facts about which there is no dispute. Where there is a dispute, the court will note that.

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c o n c lu d e d that the two highest hourly salaries should be eliminated to cut costs. (Id. a t ¶ 6). Defendant terminated plaintiff's employment on March 15, 2006. (Id. at ¶ 7). At the time of his firing, plaintiff was 58 years old. (Id. at ¶ 8). The plaintiff disputes th a t a desire to cut costs motivated plaintiff's firing, but instead alleges that d e fe n d a n t discriminated against the plaintiff because of his age and disability. (Plaintiff's Counterstatement of Material Facts (Doc. 40) (hereinafter "Plaintiff's S ta te m e n t") at ¶¶ 5-6). At the time of plaintiff's termination, Judith Martinelli, who eventually replaced p la in tiff, had been working for defendant since 1996. (Defendant's Statement at ¶ 9 ). She had been employed by the bank's predecessor in interest since 1978. (Id. a t ¶ 10). She was 49 years old. (Id. at ¶ 14). Plaintiff had been her supervisor the e n tire time she worked for the bank. (Id. at ¶ 11). In March 2006, Martinelli served a s head teller in the bank. (I.d at ¶ 12). She continued to work under that title for s e ve ra l months following plaintiff's termination, though the parties dispute when she w a s hired to replace plaintiff. (Id. at ¶ 13; Plaintiff's Statement at ¶ 13). According to the defendant, while Martinelli assumed some management duties, two male e m p lo ye e s , Michael Jake and Richard Casagrande, assumed many branch manager d u tie s during the initial months after plaintiff's termination. (Defendant's Statement a t ¶ 15). Jake was 53 years old. (Id. at ¶ 20). Defendant asserts that Martinelli a s s u m e d plaintiff's duties "several months" after his termination, when defendant d e te rm in e d that Mr. Casagrande could not cover both his previous position and the

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a d d itio n a l duties assigned him from plaintiff's previous job. (Id. at ¶ 16). Plaintiff in s is ts that the determination to promote Martinelli had been made months earlier, a n d that evidence indicates that the delay between plaintiff's termination and formal n o tic e that Martinelli had been promoted was a "probationary period" designed to e s ta b lis h that Martinelli could perform the job. (Id. at ¶¶ 15-16). Plaintiff had heart problems during his employment with defendant. (Id. at ¶ 2 1 ). At the time he was hired, plaintiff had previously suffered a heart attack and h a d surgery for a heart condition. (Id.). In July 1998, plaintiff missed work because o f a heart attack and angioplasty. (Id. at ¶ 22). Plaintiff also missed work in N o ve m b e r and December 2001 due to a heart attack. (Id. at ¶ 23). He missed one d a y of work in 2004 and four days in 2005. (Id. at ¶ 24). He never told anyone at w o rk that he had a condition that limited his ability to work, and never sought a c c o m m o d a tio n for a disability. (Id. at ¶ 25). W h e n plaintiff filed an initial disability discrimination questionnaire, he admitted th a t his alleged disability did not affect his ability to do his job. (Id. at ¶ 28). Plaintiff c o n te n d s that he made that admission because his condition was stable at the time. (P la in tiff's Statement at ¶ 28). He also stated on the questionnaire that he had "no lim ita tio n s or restrictions" on his ability to do work and could perform all of the major fu n c tio n s of his job without accommodations. (Id. at ¶ 29). He also admitted that his e m p lo ye r had not perceived him as disabled and did not mistreat him because of his d is a b ility . (Id. at ¶¶ 30-1). Plaintiff does contend, however, that a supervisor made

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d is p a ra g in g comments about the bank's aging workforce and the rising cost of p ro vid in g that workforce with health care. (Plaintiff's Statement at ¶ 27). The s u p e rvis o r "chided" plaintiff about his weight. (Id.). In his initial filing, plaintiff c la im e d only that he was restricted in the major life activity of lifting, though the in ta k e worker noted that he had problems with his hands and difficulty writing. (Id. at ¶ 32; Plaintiff's Statement at ¶ 33). Plaintiff contends that he suffers from arthritis w h ic h makes use of his hands and knees difficult. (See Plaintiff's Affidavit in O p p o s itio n to Defendant's Motion for Summary Judgment, Exh. 8 to Plaintiff's S ta te m e n t (Doc. 40-9) at ¶ 11). Plaintiff later filed a claim for Social Security D is a b ility insurance, stating that he had been unable to work because of his illness b e g in n in g on March 15, 2006. (Id. at ¶ 37). P la in tiff filed his complaint in this court on June 21, 2007. The complaint c o n s is ts of two counts. Count One alleges age discrimination pursuant to the Age D is c rim in a tio n in Employment Act, 29 U.S.C. § 621. Plaintiff contends that he was fire d on account of his age, 58, and replaced by a significantly younger worker who h a d much less experience. Count Two alleges disability discrimination pursuant to th e Americans with Disabilities Act, 42 U.S.C. § 12101. Plaintiff alleges that he was d is a b le d within the meaning of the Act, was qualified to perform his job, and was term in a te d by the defendant because of a perception about his disability. T h e parties engaged in discovery. At the close of discovery, defendant filed th e instant motion for summary judgment. The parties then briefed the issue and the

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c o u rt heard argument, bringing the case to its present posture. J u r i s d ic t i o n B e c a u s e this case is brought pursuant to the Age Discrimination in E m p lo ym e n t Act, 29 U.S.C. §§ 621, et seq, and the Americans with Disabilities Act, 4 2 U.S.C. §§ 12101, et seq., the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("T h e district courts shall have original jurisdiction of all civil actions arising under the C o n s titu tio n , laws or treaties of the United States."). Legal Standard G ra n tin g summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th a t there is no genuine issue as to any material fact and that the moving party is e n title d to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3 d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere e xis te n c e of some alleged factual dispute between the parties will not defeat an o th e rw is e properly supported motion for summary judgment; the requirement is that th e re 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 fa c ts in the light most favorable to the party opposing the motion. International Raw M a te ria ls , Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The b u rd e n is on the moving party to demonstrate that the evidence is such that a 5

re a s o n a b le 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 u n d e r the governing law. Id. Where the non-moving party will bear the burden of p ro o f at trial, the party moving for summary judgment may meet its burden by s h o w in g that the evidentiary materials of record, if reduced to admissible evidence, w o u ld be insufficient to carry the non-movant's burden of proof at trial. Celotex v. C a tre tt, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the b u rd e n shifts to the nonmoving party, who must go beyond its pleadings, and d e s ig n a te specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. D i s c u s s io n D e fe n d a n t seeks summary judgment on each of plaintiff's claims. The court w ill address them in turn. A. Age Discrimination in Employment Act T h e Age Discrimination in Employment Act (ADEA) prohibits "discrimination a g a in s t an individual over age 40 with respect to `compensation, terms, conditions, o r privileges of employment, because of an individual's age.'" Billet v. Cigna Corp., 9 4 0 F.2d 812, 816 (3d Cir. 1991) (quoting 29 U.S.C. § 623(a)). To recover under the a c t, "`a plaintiff must prove by a preponderance of the evidence that age was the d e term in a tiv e factor in the employer's decision' at issue." Id. (quoting Bartek v. U rb a n Redevelopment Authority of Pittsburgh, 882 F.2d 739, 742 (3d Cir. 1989)). 6

L a c k in g direct evidence of discrimination, a plaintiff seeking recovery under th e ADEA must first make out a prima facie case by "showing (1) he is within the p ro te c te d age class, i.e. over forty; (2) that he was qualified for the position at issue; (3 ) he was dismissed despite being qualified; and (4) he was replaced by a person s u ffic ie n tly younger to permit an inference of age discrimination." Armruster v. U n is ys Corp., 32 F.3d 768 (3d Cir. 1994). Once the plaintiff establishes this prima fa c ie case, "the defendant has the burden of producing evidence that it had `a le g itim a te , nondiscriminatory reason for the discharge.'" Fakete v. Aetna, Inc., 308 F .3 d 335, 338 (3d Cir. 2002). If the defendant produces such evidence, the burden s h ifts back to the plaintiff, who must provide "evidence `from which a factfinder could re a s o n a b ly either (1) disbelieve the employer's articulated legitimate reasons[,] or (2) b e lie ve that an invidious discrimiantory reason was more likely than not a motivating o r determinative cause of the employer's action.'" Id. (quoting Fuentes v. Perskie, 32 F .3d 759, 763 (3d Cir. 1994). In itia lly, the court finds that no direct evidence of age discrimination exists. W h ile some of defendant's employees may have made comments about the age of th e workforce, those comments were attenuated from the actual employment d is c rim in a tio n and not aimed specifically at the plaintiff. As such, the case must p ro c e e d through the burden-shifting process described above. i. Prima Facie Case

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P la in tiff must first make out a prima facie case for age discrimination. The d e fe n d a n t first argues that plaintiff should be judicially estopped from asserting c la im s under the ADEA because he applied for Social Security Disability Insurance (S S D I) benefits, asserting that he was not capable of working. W e re the court to a d o p t this reasoning, plaintiff could not make out a prima facie case, as he would h a ve admitted that he was not qualified to perform his work as a branch manager. In Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), the United S ta te s Supreme Court addressed the question of whether a plaintiff who had sought S S D I benefits, alleging total disability, should be judicially estopped from later c la im in g discrimination under the Americans W ith Disabilities Act (ADA). As the c o u rt noted, a claim to both protection of the ADA, which requires a plaintiff to show th a t "with reasonable accommodation, she could perform the essential functions of h e r job," and SSDI benefits, which requires a claimant to lack the ability to perform a n y relevant work, would appear to be contradictory. Cleveland, 526 U.S. at 802. The Court concluded, however, that there were "many situations in which an SSDI c la im and an ADA claim can comfortably exist side by side.' Id. at 803. Because of th e specialized nature of the inquiry under each statute, "an individual might qualify fo r SSDI under the S[ocial] S[ecurity] A[dministration]'s rules and yet, due to special in d ivid u a l circumstances, remain capable of `perform[ing] the essential functions' of h e r job." Id. at 804. Still, because an ADA plaintiff must prove that she can perform th e essential functions of her job with or without reasonable accommodations, and a

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c la im of being "unable to work" would seem "to negate an essential element of her A D A case," she "cannot simply ignore the apparent contradiction that arises out of th e earlier SSDI total disability claim. Rather, she must proffer a sufficient e x p la n a tio n ." Id. at 806. In the summary judgment context, "that explanation must b e sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or th e plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless `p e rfo rm the essential functions' of her job, with or without reasonable a c c o m m o d a tio n ." Id. at 807. T h e Third Circuit Court of Appeals has concluded that the analysis articulated in Cleveland applies equally to ADEA cases, and thus "a declaration that one is a `q u a lifie d individual' under the ADEA that conflicts with earlier statements made to th e SSA is subject to the same analysis, as the reasoning of the court in Cleveland a ls o applies in the context of the ADEA." Detz v. Greiner Industries, Inc., 346 F.3d 1 0 9 , 117 (3d Cir. 2003). The task for the court in such cases, then, is to "determine w h e th e r a plaintiff's assertions are genuinely in conflict, and then evaluate that p la in tiff's attempt to explain away the inconsistency." Id. at 118. Courts must d e te rm in e whether the two positions are contradictory "on a case-by-case basis, by e xa m in in g the unique facts presented by [plaintiff's] claim." Id.. Plaintiff asserts that the court does not need to undertake this analysis, since th e SSA has not yet ruled on his SSDI application. He points out that in Cleveland, th e court noted that the analysis should be different when the plaintiff's SSDI claim

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h a s not yet been evaluated, since "any inconsistency in the theory of the claims is of the sort normally tolerated by our legal system." Cleveland, 526 U.S. at 805. Court ru le s "recognize that a person may not be sure in advance upon which legal theory s h e will succeed, and so permit parties to `set forth two or more statements of a c la im or defense alternately or hypothetically' and to `state as may separate claims o r defenses as the party has regardless of consistency.'" Id. (quoting FED. R. CIV. P. 8 (E)(2 )). Plaintiff's court case and his SSDI petition, which has yet to be ruled upon, s im p ly take alternative positions, he argues. The court agrees.2 The evidence in d ic a te s that plaintiff's SSDI claim is still pending, and the court will therefore d e c lin e to apply judicial estoppel to prevent plaintiff from asserting in this court that h e is entitled to ADEA benefits.3 D e fe n d a n t contends that even if the court concludes that plaintiff is not ju d ic ia lly estopped from claiming to be qualified to perform his job, he has not made o u t a prima facie case that he was replaced by an employee sufficiently younger to a llo w an inference of age discrimination. Defendant points out that plaintiff was 58

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The same reasoning applies to plaintiff's ADA claims.

In any case, the court finds that the plaintiff's contentions in claiming disability in his SSDI filing and asserting that he was qualified to perform his current job are not inconsistent. In his SSDI filing, plaintiff asserted that he became unable to work on the day he lost his job. In his brief, plaintiff explains that his claim of inability to work came because he did not feel capable, given his health conditions, of finding a new job after losing his job. Employers, he asserts, would be unlikely to make a new hire of someone of his age with his history of heart problems. He did not claim, however, that he had been unable to perform the work he had been doing. Thus the claim that he had been able to work, but now found himself unable to find a job is not inconsistent. Plaintiff's explanation of his two filings is adequate, and the court will not grant summary judgment on this point. 10

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ye a rs old when he was terminated. His position, defendant argues, was initially d ivid e d up between Michael Jake and Judith Martinelli. Michael Jake was 53 years o ld when plaintiff lost his job, and Martinelli was 49. Defendant argues that both th e s e persons are within the protected class of the ADEA, and they are not so much yo u n g e r than plaintiff that an inference of age discrimination can apply. "A plaintiff under the ADEA need not show that the successful candidate was s o m e o n e who was not in the protected class, i.e. below age forty." Barber v. CSX D is trib u tio n Services, 68 F.3d 694,699 (3d Cir. 1995). That plaintiff must simply s h o w "that the beneficiary of the alleged discrimination is `sufficiently younger' to p e rm it an inference of age discrimination." Id. The Third Circuit Court of Appeals h a s found that a five-year age difference can be sufficient to create an inference of d is c rim in a tio n , but that a one year difference cannot. Showalter v. University of P itts b u rg h Medical Center, 190 F.3d 231, 236 (3d Cir. 1999); Sempier, 45 F.3d at 7 2 9 -3 0 .4 H e re , the plaintiff has presented evidence that the two people who effectively re p la c e d him were 53 and 49 years old. Plaintiff was 58 when he lost his job. At m in im u m , then, plaintiff was five years older than those who replaced him, and the

The court notes that the prima facie case is part of a burden-shifting test; providing evidence to meet the first part of the test does not answer the entire question for summary judgment in a discrimination case. Proving that an inference of discrimination lies, after, merely serves to "shift the burden of production to the defendants and require them to articulate a legitimate, nondiscriminatory motivation for their failure to promote." Barber, 68 F.3d at 699 11

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p e rs o n who ultimately replaced him was nine years younger. In a context where the d e fen d a n t had articulated, as explained more fully below, a desire to replace older, h ig h e r-p ric e d employees, particularly those with health concerns, the court finds that a reasonable juror could conclude that an inference of age discrimination is a p p ro p ria te . The court finds that plaintiff has made out a prima facie case of age d isc rim in a tio n , and the burden now shifts to the defendant to articulate legitimate n o n -d isc rim in a to ry reasons for its decision to fire the plaintiff. ii. Legitimate Non-Discriminatory Reason for Firing Defendant argues that it had a legitimate, non-discriminatory reason for the a d ve rs e employment action. The defendant had determined that cost-cutting was n e c e s s a ry, and therefore decided to downsize the Duryea Branch and let plaintiff go. Plaintiff agrees that this represents a legitimate non-discriminatory reason for the firin g . The burden thus shifts back to the plaintiff to present evidence that this stated re a s o n for the employment decision was not the real reason. iii. Evidence of Pretext D e fe n d a n t argues that plaintiff has offered no evidence by which a factfinder c o u ld disbelieve these legitimate, non-discriminatory reasons. At his deposition, d e fe n d a n t points out, plaintiff explained his evidence of pretext by pointing out that th e person who replaced him­Martinelli­looked and acted younger than he was. (Deposition of Joseph Chodnicki, Exh. 1 to Plaintiff's Statement (Doc. 40-2) (h e re in a fte r "Chodnicki Dep.") at 16-17, 24). He asserted that "that would be the 12

o n ly reason, one of the reasons why I feel as though I was discriminated against." (Id. at 24-25). He later admitted that he had no other proof of discrimination. (Id. at 2 5 ). Despite plaintiff's admissions in his deposition, other evidence exists by which a jury could decide that defendant's stated reasons for firing him were not its real re a s o n s . The defendant bank's controller, Michael Jake, testified that the advanced a g e s of the bank's staff led to higher health-care costs and created a sense that e xp e n s e s needed to be cut. (Deposition of Michael Jake, Exh. 2 to Plaintiff's S ta te m e n t (Doc. 40-3) (hereinafter "Jake Dep.") at 15). W h e n the defendant

d e c id e d to eliminate employees in these "cost-saving" efforts, it fired the two oldest b ra n c h employees. (Id. at 64). A dispute exists over whether defendant always in te n d e d to replace defendant with Martinelli, or whether circumstances forced a c h a n g e in its initial plans. (See Id. at 33-40). Moreover, after promoting Martinelli, d e fe n d a n t transferred Linda Rowan into the branch to replace her, casting doubt on c la im s that the company sought to eliminate positions. (Id. at 54). Evidence also in d ic a te s that a jury could find that the cost-cutting and salary trimming that d e fe n d a n t claims to have undertaken did not materialize in any appreciable w a y ­ o n ly one job appeared to have been eliminated, and that was a part-time one a n d the salary paid to plaintiff's replacement would soon match his.5 (See Id. at 68-

At oral argument, the parties disagreed over the defendant's actions should be termed a "downsizing" or "cost cutting." Such disputes are best left for a jury to decide. Defendant also uses a motion in limine to challenge the qualifications of plaintiff's expert, 13

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7 2 ). A representative of the bank's board also testified that the board never e n g a g e d in any examination of the specific savings and economics of the d o w n s izin g plan that cost plaintiff his job. (Deposition of Mark H. DeStefano, Exh. 5 to Plaintiff's Statement (Doc. 40-6) (hereinafter "DeStefano Dep.") at 24). A jury c o u ld therefore conclude that defendant's interest was not in paring down staff, but in getting rid of an older worker, namely plaintiff. Based on this evidence, the court fin d s that a reasonable juror could "disbelieve the employer's articulated legitimate re a s o n s " for the employment decision and conclude that discrimination motivated the d e fe n d a n t's action. Fuentes, 32 F.3d at 764. Since the evidence in this case is not c o n fin e d to plaintiff's deposition testimony, and that evidence could lead a jury to c o n c lu d e that defendant's legitimate non-discriminatory reasons for its hiring d e c is io n were pretext, the court will deny summary judgment on this claim. B . Americans with Disabilities Act U n d e r the Americans with Disabilities Act (ADA), an employer cannot d is c rim in a te against a qualified individual with a disability because of her disability in re g a rd to her employment. 42 U.S.C.A. § 12112 (a). Further, an employer must m a k e reasonable accommodations to known physical or mental limitations of an o th e rw is e qualified employee with a disability unless such employer can

who contends that defendant's personnel changes did not have the impact it sought. The court finds that motion premature, and concludes that­even excluding any evidence from the expert­plaintiff has presented evidence sufficient to survive summary judgment that defendant's stated motives for the hiring decision were not the real motives. 14

d e m o n s tra te the accommodation would impose an undue hardship on the operation o f the employer's business. Id. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 3 0 6 (3d Cir. 1999) (holding that "[d]iscrimination under the ADA encompasses not o n ly adverse actions motivated by prejudice and fear of disabilities, but also includes fa ilin g to make reasonable accommodations for a plaintiff's disabilities."). The plaintiff has the initial burden of establishing a prima facie case in an ADA m a tte r. Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996); N e w m a n v. GHS Osteopahtic, Inc., 60 F.3d 153, 157 (3d Cir. 1995). A prima facie c a s e is established by the plaintiff when she demonstrates: 1) she is a disabled p e rs o n within the meaning of the ADA; 2) she is otherwise qualified to perform the e s s e n tia l functions of the job, with or without reasonable accommodations by the e m p lo y e r; and 3) she has suffered an otherwise adverse employment decision as a re s u lt of discrimination. Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996); v. Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 1998). If the plaintiff meets this initial burden, the court then applies the next step in "th e familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U .S . 792, 803-805." Abramson v. W illia m Patterson College, 260 F.3d 265, 281 (3d C ir. 2001). The employer must "proffer a legitimate, non-discriminatory reason for th e adverse employment decision." Id. at 282. An employer need only introduce "e v id e n c e which, taken as true, would permit the conclusion that there was a n o n d is c rim in a to ry reason for the unfavorable employment decision." Fuentes, 32 Gaul

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F .3 d at 763. "The employer need not prove that the tendered reason actually m o tiva te d its behavior, as throughout this burden-shifting paradigm the ultimate b u rd e n of proving intentional discrimination always rests with the plaintiff." Id. (e m p h a s is in original). Once the employer meets this burden, the plaintiff must show th a t a jury "could reasonably either (1) disbelieve the employer's articulated le g itim a te reasons; or (2) believe that an invidious discriminatory reason was more lik e ly than not a motivating factor or determinative cause of the employer's action." Id. at 764. I. Prima Facie Case D e fe n d a n t argues that plaintiff cannot make out a prima facie case because he has stated that he could not perform the functions of the job and thus was not a q u a lifie d person with a disability. Plaintiff has offered no evidence that he was d is a b le d within the statute's meaning. He has no evidence that he was substantially lim ite d in any major life activity, or that any record of disability exists. The ADA establishes that "[t]he term `qualified individual with a disability' m e a n s an individual with a disability who, with or without reasonable a c c o m m o d a tio n , can perform the essential functions of the employment position that s u c h individual holds or desires." 42 U.S.C. § 12111(8). The statute further defines a "disability" as "(A) a physical or mental impairment that substantially limits one or m o re of the major life activities of such individual; (B) a record of such impairment; or (C ) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Major life

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a c tivitie s , left undefined by the statute, have been defined by the Equal Employment O p p o rtu n ity Commission as "`functions such as caring for oneself, performing m a n u a l tasks, walking, seeing, hearing , speaking, breathing, learning, and w o rk in g .'" Tice v. Centre Area Trans. Auth., 247 F.3d 506, 512 (3d Cir. 2001) (q u o tin g 29 C.F.R. § 1630(2)(i)). i. Actual Disability A t oral argument, plaintiff contended that he suffered from a disability related to his heart condition. He contended that poor circulation caused him problems with h is feet and led him to walk with a limp. Plaintiff contends that these difficulties c o n s titu te a substantial limitation on the major life activity of walking. When a p la in tiff claims a substantial limitation on a major life activity such as walking as his d is a b ility , the question of "whether a person has a disability under the ADA is an in d ivid u a liz e d inquiry." Sutton v. United Air Lines, 527 U.S. 471, 483 (1999). The T h ird Circuit Court of Appeals has noted that "EEOC regulations provide that an in d ivid u a l is `substantially limited' in performing a major life activity if the individual is (i) Unable to perform a major life activity that the average person in the general p o p u la tio n can perform; or (ii) Significantly restricted as to the condition, manner or d u ra tio n under which an individual can perform a particular major life activity as c o m p a re d to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." W illia m s v. P h ila d e lp h ia Housing Authority Police Dept., 380 F.3d 751, 762 (3d Cir. 2004)

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(q u o tin g 29 C.F.R. § 1630.2(j)(1)). Courts consider "[S]everal factors . . . in e va lu a tin g whether an individual is substantially limited in a major life activity: `(i) The n a tu re and severity of the impairment; (ii) The duration or expected duration of the im p a irm e n t; and (iii) The permanent or long term impact, or the expected permanent o r long term impact of or resulting from the impairment.'" Id. (quoting 29 C.F.R. § 1 6 3 0 .2 (j)(2 )). In the Third Circuit, this inquiry consists of a two step process: "First, th e court determines whether the individual is substantially limited in any major life a c tivity other than working, such as walking, seeing or hearing." Mondzlelewski v. P a th m a rk Stores, Inc., 162 F.3d 778, 783 (3d Cir. 1998). If the individual is not lim ite d in that way, "the court's next step is to determine whether the individual is s u b s ta n tia lly limited in the major life activity of working." Id. at 784. H e re , the plaintiff contends that his heart condition has harmed his circulation a n d caused him to walk with a limp. Plaintiff filed an affidavit where he claimed to h a ve pain in his hands and knees from arthritis. (Plaintiff's Affidavit at ¶ 11). As e v id e n c e of this condition, he pointed to a report from his podiatrist, Dr. Joseph J. C o s te llo , which related that plaintiff "has foot pathology related to decreased va s c u la r perfusion as a result of his heart disease. He is suffering form o n yc h o m y c o sis 6 which is painful and limits his ability to ambulate without pain." (See R e p o rt of Dr. Joseph J. Costello, Exh. A to Defendant's Brief in Support of Motion in

"Very common fungus infections of the nails, causing thickening, roughness, and splitting." STEDMAN'S MEDICAL DICTIONARY, 28th Ed. (2006). 18

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L im in e to Exclude Dr. Costello's Report (Doc. 33) (hereinafter "Costello Report")). At h is deposition, Dr. Costello related that his diagnosis meant that plaintiff's condition "lim its his walking." (Deposition of Dr. Costello, Exh. C to Motion in Limine to E xc lu d e Dr. Costello's Expert Report (Doc. 29-3) (hereinafter "Costello Dep.") at 21). W h e n plaintiff's were "not trimmed, when they get thicker because of the fungus, the y become painful when they rub his shoes, so it makes it difficult for him to walk." (Id.). The condition led to pain in plaintiff's feet and "a limp. It does cause him to w a lk more slowly so that the nails don't bump into the front of his shoe." (Id.). Plaintiff had walked with this limp for as long as the doctor could recall. (Id. at 22). The doctor assessed plaintiff with an "antalgic gait," which meant that "[h]e just d o e s n 't walk straight. You can tell that when he places his foot and picks his foot up th a t he's trying not to allow that foot to slide because it would cause pain." (Id. at 2 5 ). Later, however, the doctor described that condition as "pain when [plaintiff] w a lk s ." (Id. at 45). Though plaintiff also demonstrated "a little bit" of reduced muscle s tre n g th , the condition was to be expected for someone of plaintiff's age and medical c o n d itio n ." (Id.). Dr. Costello diagnosed the condition as "chronic and permanent." (Id . at 26). The court finds that no evidence exists to establish that plaintiff's foot and toe p r o b le m s caused significant restrictions on his ability to walk, though they did cause a limp. Plaintiff does not use a cane, does not complain of an inability to walk up s ta irs , and is not required to use a wheelchair or other device to move from place to

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p la c e . The evidence establishes only that he has pain when he walks, moves a bit m o re slowly than those without his condition, and has a noticeable limp. Indeed, w h e n plaintiff filled out an intake questionnaire completed in relation to his a d m in is tra tiv e ADA claim, however, he did not complain of any significant limitations in walking, but listed only lifting as a limitation. The plaintiff has thus not produced e vid e n c e that he suffered from a substantial limitation on a major life activity. In a d d itio n , plaintiff does not contend that his health substantially limited his ability to w o rk at the time he lost his job, and he therefore cannot claim a substantial limitation o n the major life activity of working. This case is like Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996). In that c a s e , the plaintiff fractured his hip and was left with a noticeable limp. Id. at 104. A s p e c ia lis t diagnosed him with "severe post-traumatic degenerative joint disease of the right hip and protrusio acetabulum of the right hip joint." Id. Six years later, d e fe n d a n t eliminated plaintiff's position. Id. Plaintiff sued, alleging disability d is c rim in a tio n . Id. The Third Circuit Court found that, since plaintiff admitted he was a b le to walk, "the question presented is whether he adduced sufficient evidence from w h ic h a factfinder reasonably could conclude that the nature and severity of his in ju ry significantly restricted his ability to walk as compared with an average person in the general population." Id. at 105. The plaintiff in Kelly reported that he could not w a lk more than a mile, and the could not jog at all. Id. at 106. He could climb stairs, b u t had to pace himself slowly and hold onto the railing. Id. Though his doctor

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re p o rte d that he had "great difficulty in walking around," the plaintiff offered no e vid e n c e that "he required any special devices like a cane or crutches to aid him in w a lkin g ." Id. The court upheld the district court's finding that "`as a matter of law . . . [p la in tiff's ] trouble climbing stairs, which requires him to move slowly and hold the h a n d ra il, does not substantially limit his ability to walk." Id. Here, the plaintiff had fe w e r limitations on his ability to walk than Kelly. Evidence exists that plaintiff has s o m e degree of pain when he walks, but no difficulty in climbing stairs. Given this h o ld in g , the court finds that as a matter of law plaintiff cannot establish that he was d isa b le d within the first part of the ADA's definition. ii. Regarded as Disabled O f course, the plaintiff could also establish that he is covered by the act if he c o u ld show that his employer regarded him as disabled. At oral argument, the d e fe n d a n t contended that plaintiff's only allegation in his complaint was that his e m p lo ye r regarded him as disabled. Plaintiff has apparently abandoned that a lle g a tio n , however, as he does not argue in his brief that his employer considered h im to be disabled. Because plaintiff does not contend that he was regarded as d is a b le d , the court finds that he is not protected by the statute on these grounds.7

In any case, the evidence indicates only that the employer knew of plaintiff's heart condition and had made comments about his weight. Plaintiff does not claim that these conditions­by themselves­constitute a disability, and therefore cannot contend that the employer regarded him as disabled because it knew of these conditions. Plaintiff's main contention is that he feared the employer would discriminate against him in the future because of his health conditions. This is a speculative claim and not covered by the act. 21

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iii. Record of Disability A plaintiff can also establish that he is covered by the statute if he d e m o n s tra te s that he has a record of a disability. Plaintiff contends that he has such a record, pointing to medical and attendance records. Federal regulations describe a person with a record of a disability as one who "has a history of, or has been m is c la s s ifie d as having, a mental or physical impairment that substantially limits one o r more major life activities." 29 C.F.R. § 1630.2(k). "A plaintiff attempting to prove th e existence of a `record' of disability still must demonstrate that the recorded im p a irm e n t is a `disability' within the meaning of the ADA." Tice v. Centre Area T ra s p . Authority, 247 F.3d 506, 513 (3d Cir. 2001); see also Howell v. Sam's Club N o . 8160/Wal-Mart, 959 F.Supp. 260, 268 (E.D. Pa. 1997) (finding that "[s]ummary ju d g m e n t in favor of the employer is appropriate if the employee's record of im p a irm e n t does not demonstrate a substantial limitation in major life activities."); B u s k irk v. Apollo Metals, 116 F.Supp.2d 591, 600 (E.D. Pa. 2000) (holding that "[i]f a n impairment does not substantially limit a major life activity, a history of those s a m e impairments cannot constitute a record of impairment."); Sherrod v. American A irlin e s , Inc., 132 F.3d 1112, 1120-21 (5th Cir. 1998). O n e set of records to which plaintiff points, his work attendance records, e s ta b lis h that plaintiff missed ten days of work in November and all of December 2 0 0 1 due to illness. (See Defendant's Attendance Record, Exh. I to Plaintiff's S tate m e n t (Doc. 38-10)). Plaintiff also missed two weeks due to illness in July,

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1 9 9 8 . Id. The July 1998 record notes that plaintiff had a heart attack and underwent a n g io p la s ty. Id. Such records do not establish that plaintiff suffered from any c o n d itio n that substantially limited a major life activity. Instead, they simply record th a t plaintiff missed several weeks of work due to illness in 1998 and 2001. Later re c o rd s do not indicate that he missed more than a few days at a time. See Id. Those records also do not indicate that he was substantially limited in his work; in th e last few years of his employment, plaintiff missed only a few days due to illness. (Id .). In any case, courts have concluded that records which indicate plaintiff missed w o rk for a period of time due to illness do not establish that plaintiff suffered from a c o n d itio n that substantially limited a major life activity. See, e.g., Taylor v. Nimock's O il Co., 214 F.3d 957, 961 (8th Cir. 2000) (finding no record of disability or m is c la s s ific a tio n of disability, even though employer knew of plaintiff's heart attack, s e n t her a get-well card and note about job duties, since such evidence "supports th e proposition that [defendant] acknowledged that [plaintiff] was suffering medical p ro b le m s but expected that she would return to work when she had sufficiently h e a le d . ") . T h e other records to which plaintiff points, his medical records, establish that h e had circulatory problems with his feet and suffered from the fungal problem with h is toenails discussed above. As the court has explained, such a condition does not a m o u n t to a substantial limitation on the major life activity of walking, and the court fin d s that no record of disability exists.

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S in c e the plaintiff has not demonstrated that he is a qualified individual with a d is a b ility within the meaning of the ADA, he cannot make out a prima facie case u n d e r that statute. The court will therefore grant the defendant's motion for s u m m a ry judgment on this claim. C o n c l u s io n F o r the reasons stated above, the court will deny the defendant's motion for s u m m a ry judgment on plaintiff's ADEA claim but grant the motion on plaintiff's ADA c la im . An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JOSEPH CHODNICKI, Plaintiff, : No. 3:07cv1112 : : (Judge Munley) v. : : OLD FORGE BANK, : Defendant : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 21st day of January 2009, the defendant's motion for s u m m a ry judgment (Doc. 37) is hereby GRANTED in part and DENIED in part, as fo llo w s : 1 ) The motion is DENIED with respect to plaintiff's claims pursuant to th e Age Discrimination in Employment Act; and 2 ) The motion is GRANTED with respect to plaintiff's claims pursuant to th e Americans with Disabilities Act. D e fen d a n t's motions in limine (Docs. 29, 31) are hereby DENIED without prejudice to the defendant raising them again at the appropriate time. BY THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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