Savidge v. Potter et al
Filing
73
MEMORANDUM AND ORDER Defendant Patrick R. Donahoe filed a Motion for Summary Judgment (Doc. 45). For the reasons set forth in the accompanying memorandum, NOW, on this 30th day of MARCH, 2012, IT IS HEREBY ORDERED THAT:1. Defendant's Motion for Summary Judgment (Doc. 45) is DENIED.Signed by Honorable Robert D. Mariani on 3/30/12. (jfg)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GARY A. SAVIDGE
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Plaintiff
v.
3:08-cv-2123
(JUDGE MARIANI)
PATRICK R. DONAHOE,
Postmaster General
Defendant
MEMORANDUM AND ORDER
On November 24, 2008, Plaintiff Gary A. Savidge ("Plaintiff') filed a
Complaint ("Complaint") against his then employer, the United States
Postal Service ("USPS"), alleging violations of the Rehabilitation Act, 29
U.S.C. § 791, et seq. ("RA"). Specifically, Plaintiff alleges that he was
wrongfully denied his request to transfer from his job as a mail sorter to a
custodial position within the USPS. The nominal defendant, Patrick R.
Donahoe ("Defendant"), denies that USPS's hiring personnel did anything
inconsistent with the mandates of the RA and that the denial of Plaintiffs
request was proper. On April 15, 2011 Defendant filed the instant Motion
for Summary Judgment (Doc. 45), and for the reasons set forth below, the
Court will deny Defendant's motion.
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BACKGROUND
At the time Plaintiff filed his Complaint, he was a 43 year old Gulf War
veteran with over 14 years of experience with the USPS. (See Compl.
mr
8-10, ECF Dkt. 1.) Plaintiff alleges that he suffers 'from several disabilities
as a result of his military service in the Persian Gulf. (See Compl. 1112.)
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Specifically, Plaintiff maintains that he "has been diagnosed with
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Fibromyalgia and Peroneal Nerve Palsy in the right leg, which constitutes
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disabilities under the Rehabilitation Act." (See Compl. 1112.) Plaintiff
further maintains that the "United States government has rated him 70%
disabled based on his ailments following his service to our county."
(Compl. 1113.) Plaintiff also avers that he walks with a noticeable limp.
Plaintiff worked for the USPS as a mail sorter, but asserts that he
applied for an internal transfer to a custodial position because such a move
would alleviate certain physical stresses caused by his alleged disabilities.
For instance, Plaintiff testified at his deposition that the high-paced "wear
and tear" of a clerk's position would be alleviated by a transfer to a slowerpaced custodial job. (See Savidge Dep. Tr. 37: 11-17, ECF Dkt. 55-1.)
Plaintiff also testified that he sought the position because it would afford
him greater earning potential within the USPS. (See id. at 37:3-8.) Plaintiff
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applied for two separate custodial positions with USPS and was denied
both times.
Plaintiff further alleges that USPS maintenance manager Fredrick
Franco ("Franco") made the discriminatory comment that "all he needed
was another 'Gene Pollack,' who is a disabled veteran [who] was forced
into retirement." (See Compl. 1[14.) It is further alleged that Franco also
commented that Plaintiff "could not do the job and that [Plaintiff] could not
even climb a ladder." (See Compl.1[15.) Plaintiff argues that Franco hired
applicants with test scores below those obtained by Plaintiff and refused to
interview Plaintiff while interviewing individuals with lower scores. (See
Compl.
1m 22-23.)
Plaintiff maintains that the USPS knew that Plaintiff "had
a disability, and/or had a record of impairment, and/or regarded him as
disabled." (See Compl. 1[17.) Plaintiff avers that he "is significantly limited
in the major life functions of, including but not limited to carling] for
oneself/working, walking, and work[ing]." (See Compl.1[1B.) Plaintiff
further avers that U[a]t all times material hereto, [Plaintiff] was able to
perform the essential functions of the custodial position with or without
accommodations.
II
(See Compl.1[19.)
In March 2007, when Franco became maintenance manager, the
prior manager provided him with a file containing all requests for transfer,
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which were supposed to contain only those names of persons who had
obtained a passing score on a custodial examination. (See Franco
Declaration 1131, ECF Dkt. 45-4.) On May 22, 2007, the USPS received
approval to fill a vacant custodial position. (See id. at 1124.) Another
employee who had not yet passed the test, Jones, was mistakenly placed
in the folder by Franco's predecessor. (See id. at 111166-69.) When Franco
reviewed the file, Jones was considered first for the position because his
request for transfer was dated May 6,2005. (See id. at 1132.) This
predated Plaintiff's request for transfer dated November 9,2006. (See id.
at 1133.) Defendant contends that Jones had an acceptable work,
attendance, and safety record, and thus, on September 15,2007, Jones
was reassigned to the custodial position. (See id. at 1l1l35-36.) The
custodial examination was suspended in November 2007. (See id. at 11
37.)
When another position became available, Franco again reviewed the
file and found the requests of four union craft employees: Plaintiff, Tim
Bailey, Charles Greenly, and Joe Carney. (See id. at 111139-41.) Franco
reviewed their work, attendance, and safety records, and concluded that
none of the applicants had acceptable attendance records. (See id. at 11
42.) Franco sought permission to bypass all four applicants from Labor
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Relations and Human Resources (UHR"). (See id. at ~ 52.) Both Labor
Relations and HR approved the bypass after a review of the applicants'
files. (See id. at ~ 54.) This review indicated that Plaintiff took scheduled
and unscheduled Family Medical Leave Act (UFMLA") leave in 2006 and
2007, but such time was not factored into the attendance analysis. (See id.
at ~~ 45-47.) In 2006, Plaintiff used unscheduled emergency annual leave
five times and unscheduled leave three times. (See Kathy Gill Declaration
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30, Exh. 3-4, ECF Dkt. 45-4.) In 2007, Plaintiff used emergency annual
leave six times and unscheduled leave twelve times. (See id.) Defendant
alleges that Plaintiff had a pattern of taking such leave in conjunction with a
holiday or scheduled days off. (See id.) All four candidates were advised
that they were being bypassed as a result of unacceptable attendance
records. (See id. at ~ 71) Plaintiff was notified by letter on January 29,
2008, that he was being bypassed. (See id. at ~ 72.)
STANDARD
Federal Rule of Civil Procedure 56(c) provides that summary
judgment shall be granted 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." A district court
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may grant a defendant's motion for summary judgment when the plaintiff
fails to provide any genuine issue of material fact. See Rule 56(c); see also
Krouse v. Amer. Sterilizer Co., 126 F.3d 494,500 n.2 (3d Cir. 1997). The
moving party has the burden to establish before the district court that the
non-moving party has failed to substantiate its claims with evidence. See
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986); see also Country Floors, Inc. v. Partnership Composed of Gepner
and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). "The burden then shifts to
the non-movant to come forward with specific facts showing a genuine
issue for trial." See Book v. Merski, 2009 WL 890469, at *4 (W.O. Pa. Mar.
31, 2009)(citing Matsushita Elec. Indus. Company v. Zenith Radio Corp.,
475 U.S. 574, 106 S.Ct. 1348,89 L.Ed.2d 538 (1986); Williams v. Borough
of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989)("the non-movant
must present affirmative evidence-more than a scintilla but less than a
preponderance-which supports each element of his claim to defeat a
properly presented motion for summary judgment.")). The non-moving
party is then charged with providing evidence beyond the pleadings to
show specific facts by affidavit or by information contained "in the filed
documents (i.e., depositions, answers to interrogatories and admissions) to
meet his burden of proving elements essential to his claim." Book, 2009
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WL 890469, at *4 (citing Celotex, 477 U.S. at 322; Country Floors, 930
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F.2d at 1061).
Material facts are those whose resolution will affect the outcome of
the case under applicable law. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the Court
is required to resolve any doubts as to the existence of material facts in
favor of the non-moving party for summary judgment, Rule 56 "does not
allow a party resisting the motion to rely merely upon bare assertions,
conclusory allegations or suspicions." Firemen's Ins. Company of Newark,
N.J. v. Du Fresne, 676 F.2d 965,969 (3d Cir. 1982). Summary judgment,
therefore, is only precluded if a dispute about a material fact is "genuine",
viz., if the evidence would permit a reasonable jury to return a verdict in
favor of the non-moving party. See Anderson, 477 U.S. at 247-249.
DISCUSSION
Defendant offers several arguments as to why summary judgment
should be granted in his favor. First, Defendant asserts that Plaintiff failed
to exhaust his administrative remedies through his non-compliance with
certain limitations periods; second, Defendant maintains that Plaintiff is not
"disabled," was not regarded as such, and had no record of disability for the
purposes of the Rehabilitation Act; and finally, Defendant argues that the
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USPS had a legitimate, non-discriminatory purpose in refusing to transfer
Plaintiff. The Court will address each issue.
A. Timely Exhaustion of Administrative Remedies
Defendant maintains that Plaintiff waited 204 days (September 15,
2007 to April 7, 2008) after the first non-selection to initiate EEOC precomplaint counseling. Defendant further maintains that Plaintiff waited 68
days (January 29, 2008 to April 7, 2008) after his second request for
transfer to a custodial position was denied before contacting the EEOC
office. (See Def.'s Br. in Supp. Mot. Summ. J. 4, ECF Dkt. 47.) Defendant
contends that such a delay constitutes an untimely exhaustion of the
administrative procedures that are required prior to a filing of an
employment discrimination lawsuit. In Robinson v. Dalton, 107 F.3d 1018
(3d Cir. 1997), the Third Circuit recognized that the exhaustion requirement
is essential to the federal administrative EEOC process. Id. at 1020.
EEOC regulations require that the employee first consult an EEOC
counselor within 45 calendar days of the date of the alleged discrimination
to initiate pre-complaint counseling. See 29 C.F.R. § 1614.105(a). Failure
to comply with the 45 day requirement constitutes a failure to exhaust
administrative remedies, and any federal claim that follows should be
dismissed. See Spence v. Straw, 54 F.3d 196, 202 (3d Cir. 1995); Hatcher
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v. Potter, 196 Fed. Appx. 120, 123 (3d Cir. 2006)(affirming dismissal of
claim by district court for failure to comply with 45 day requirement).
Plaintiff argues that his non-compliance with the 45 day deadline
mandated by the EEOC should be subject to equitable tolling. Equitable
tolling may be appropriate when "(1) the defendant actively misled the
plaintiff respecting the reason for the plaintiff's [non-selection] and (2) this
deception caused the plaintiff's non-compliance with the limitations
provision." Oshiver V. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1387 (3d Cir. 1994)(citations omitted). As Plaintiff acknowledges in his
opposition brief, equitable tolling is applicable if the "employee's failure to
file results from 'a deliberate design by the employer or [from] actions that
the employer should unmistakably have understood would cause the
employee to delay filing his charge.'" (See PI.'s Sr. in Opp. Mot. Summ. J.
at 4, ECF Dkt. 54.) Plaintiff must also demonstrate that he "could not, by
the exercise of reasonable diligence, have discovered essential information
bearing on his ... claim." See In re Mushroom Transp. Co., 382 F.3d 325,
339 (3d Cir. 1994)(internal quotation marks omitted). Plaintiff bears the
burden of establishing the applicability of equitable tolling. See Courtney v.
La Salle Univ., 124 F.3d 499,505 (3d Cir. 1997).
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Plaintiff avers that Franco misled him as to why Jones received the
first custodial position in 2007, and that Franco admitted he made a
mistake. (See Franco Dep. Tr. 49:4-7, ECF Dkt. 55-2.) Plaintiff further
avers that Franco lied to him and told him that Jones got the position
because Jones had higher test scores. (See Savidge Dep. Tr. 28:5-18.)
Plaintiff then claims that April 4, 2008, "was the date that Rick Franco
discriminated against me because he had mentioned to John Wright that
he didn't need no Gene Pollack, which is another disabled vet with a similar
disability." (See PI.'s Br. in Opp. Mot. Summ. J. at 4 (citing Savidge Dep.
Tr. 30:14-24).) Thus, there is a genuine dispute as to whether Plaintiff was
"actively misled" by the actions of Defendant which in turn caused his
failure to timely initiate his required pre-complaint counseling. Under such
circumstances, equitable tolling is appropriate, and Plaintiff should be
permitted to further prosecute his claims.
B. Plaintiff's Disability and the Rehabilitation Act
A dispositive issue in this suit is whether Plaintiff qualifies as
"disabled" under the Rehabilitation Act. In McDonald v. Com. of Pa., Dep't
of Public Welfare, Polk Center, 62 F3d 92 (3d Cir. 1995), the Third Circuit
acknowledged that "[w]hether a suit is filed under the Rehabilitation Act or
under the [ADA], the substantive standards for determining liability are the
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same." Id. at 95 (citing Myers v. Hose, 50 F.3d 278,281 (4th Cir. 1995)).
Therefore, we analyze Plaintiff's discrimination claims according to the
familiar burden shifting approach of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d
Cir. 2000)("parties' burdens in establishing and defending claims" for
discrimination are determined by procedure set forth in McDonnell Douglas
Corp. v. Green). "Under this approach, the plaintiff must first establish a
prima facie case. The burden then shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the discharge. If the defendant
does so, the presumption of intentional discrimination disappears, but the
plaintiff can still prevail by showing that the employer's proffered reason is
merely a pretext for discrimination." James v. Sutliff Saturn, Inc., 10-4742,
slip op., at *4 (3d Cir. Mar. 15, 2010). On summary jUdgment, Savidge may
meet his burden by "providing evidence that would allow a fact finder
reasonably to (1) disbelieve the employer's articulated legitimate reasons;
or (2) believe that an invidious discriminatory reason was more likely than
not the motivating or determinative cause of the employer's action." See id.
at 4-5 (citing Sarullo v. United States Postal Service, 352 F.3d 789, 799
800 (3d Cir. 2003)(citations and internal quotations omitted)).
II
Plaintiff argues that the EEOC, interpreting the Americans with
Disabilities Act Amendment Act ("ADAAA"), recognizes walking
impairments as disabilities, and that this Court should do so as well.
Plaintiff observes that the ADAAA "provides additional support that leg
impairments such as the one that [Plaintif~ suffers from should be
recognized" as a disability "affording protection under the Rehabilitation
Act." (See Pl.'s Br. in Opp. Mot. Summ. J. 14.) Defendant counters that
the ADAAA did not become effective, by its own terms, until January 1,
2009, "over a year and a half after the first non-selection and a year after
the second non-selection." (See Def.'s Br. in Supp. Mot. Summ. J. 2 (citing
Pub. L. 110-325, § 8, 122 Stat. 3559).) Plaintiff provides no authority
holding that the ADAAA may be applied retroactively; in fact, the Courts of
Appeal, including the Third Circuit, have held that the ADAAA is not to be
retroactively applied. See Britting v. Secretary, Oep't Veterans Affairs, 409
Fed. Appx. 566, 569 (3d Cir. 2011);
see also Rhodes v. Principal Financial
Group, Inc., 10-290,2011 WL 6888684, *5, n.9 (M.D. Pa. Dec. 30,
2011 )(ADAAA is not to be retroactively applied).
Although Plaintiff argues that there are material facts in dispute
concerning whether he is disabled under the RA, Defendant does not
dispute the physical limitations alleged by Plaintiff for the purpose of
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deciding this motion. In fact, Defendant addresses each specific factual
allegation levied by Plaintiff and provides extensive case law in his Reply
Brief to show, as a matter of law, that each of Plaintiff's ailments does not
render Plaintiff "disabled" under the RA.
The Rehabilitation Act defines an "individual with a disability" as
someone "who (1) has a physical or mental impairment that substantially
limits his/her major life activities; (2) has a record of such an impairment; or
(3) is regarded as having such an impairment." Kania v. Potter, 358 Fed.
Appx. 338, 342 (3d Cir. 2009)(citing 29 U.S.C. § 705(20)(B); 42 U.S.C. §
12102(1)). A "substantial limitation" is a "significant restriction on a major
life activity 'as compared to ... the average person in the general
population.'" Id. (citing Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184,195-96,122 S.Ct. 681,151 L.Ed.2d 615 (2002))(internal citation
omitted). A major life activity is one that is "of central importance to daily
life," Williams, 524 U.S. at 197, such as "caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working," 29 C.F.R. §1630.2(i), as well as "sitting, standing, lifting [and]
reaching." Kralik v. Durbin, 130 F.3d 76,78-79 (3d Cir. 1997)(quoting 29
C.F.R. § 1630)(alteration in original).
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In the present matter, Plaintiff claims: (1) that he experiences daily
body pain for which he takes medication and uses a TENS unit that shoots
electrodes into his muscles (Savidge Dep. Tr. 15-17 (60:12-25; 61:62-6;
64:15-25; 65:1-11); (2) since 2007, he has not been able to take a long
walk and is able to walk "a couple hundred feet[,]" which is "labor some"
(sic) ((id. at 16 (63:20-25)); (3) nerve palsy causes his foot to drop, but he
is able to walk with a brace that gives leg support (id. at 17, 19 (67:4-15;
68:16-19; 76:16-20)); (4) his leg occasionally becomes numb, but it does
not prevent him from walking (id. at 17 (67:21-25; 68:1-6)); (5) he walks at
a slower pace than others (id. at 50-51 (200:6-8; 202:7-9)); (6) he is able to
climb and descend stairs, but at a slower pace (id. at 50 (200:8-12)); (7) he
does not participate in "any outdoor activities for the most part[,]" but
testified in 2007, that he hunted from a tree stand, into which he climbed
10-12 feet from the ground, and about fifty feet from his car, and in 2008,
he walked approximately 100 feet into the woods to hunt (id. at 16,21-22
(64:14; 83-87)); (8) in 2007, he was on limited duty and was permitted to sit
to sort mail (id. at 15 (58: 17-25; 59: 1-20)); and (9) he is authorized to park
in a handicap area (id. at 19 (75:24-25)).
With regard to walking, Plaintiff admits the following facts: (1) neither
fibromyalgia nor nerve palsy prevented Plaintiff from walking in 2007 and
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2008 (id. at 19 (74:8-10); id. at 20 (78:22-23; 79:5-7)); Plaintiff could climb a
ladder in both 2007 and 2008 (Def.'s SMF at 11 153, ECF Dkt. 46; PI.'s Ans.
SMF at 11153, ECF Dkt. 68); (3) Plaintiff's doctor did not restrict his ability to
walk in 2007 and 2008 (Savidge Dep. Tr. 20 (78:10-13; 80:1-3)); and (4)
Plaintiff could perform the essential functions of the custodial positions in
question "without accommodations" (PI.'s Ans. SMF at 11167).
Federal courts consistently hold that impairments comparable to
those presented by Plaintiff, and conceded by Defendant, do not, as a
matter of law, meet the high threshold required for a designation of
"disabled" under the RA. In Johnson v. Amtrak, 390 Fed. Appx. 109 (3d
Cir. 2010), the Third Circuit held that a plaintiff, who was a passenger
travelling on an Amtrak train and who suffered from diabetes and ulcerative
colitis, failed to demonstrate that he suffered from an impairment, under
both the ADA and RA, that substantially limited his ability to walk when he
was capable of walking "at least short distances, to restaurants and
restrooms.,,1 Id. at 114. Similarly, in Kania, supra, the Third Circuit
affirmed a district court's determination that the plaintiff did not meet the
"demanding standard for qualifying as disabled" when in his deposition
testimony he indicated that he was capable of driving a car, could jog on a
I The Court notes that the basis for Johnson's suit was not employment discrimination, but a failure to
accommodate; however, the analysis as to whether Johnson established a prima facie case of discrimination, with
regard to a qualifying disability, is identical to the analysis which should be engaged in an employment matter.
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limited basis, shop, and care for his son. See Kania, 358 Fed. Appx. at
342. The plaintiff also testified that he could "function even when his back
pain is sharp.
II
Id.
In the matter sub judice, Plaintiff asserts that his walking is impaired,
but he does not demonstrate that a reasonable jury could find his injuries to
meet the high threshold required by the RA. In fact, the alleged disabilities
Plaintiff claims to suffer are substantially less severe than others which
have also been found insufficiently meritorious to constitute a disability by
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the federal courts.
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Defendant's Reply Brief also provides a precise analysis of the facts
as they have been treated in both the Third Circuit, and in other federal
courts, often in cases involving circumstances more severe, and ailments
more debilitating, than those described in Plaintiffs submissions. For
instance, in Wood v. Crown Redi-Mix, Inc., 339 F.3d 682 (8th Cir. 2003),
the Eighth Circuit held that a Plaintiff did not suffer from substantial walking
limitations when he could "only walk approximately one-quarter of a mile[,]"
had recurring numbness in his left foot and leg, walked with a cane, and
had his left leg collapse. Id. at 685. In Bernitenetti v. Joy Mining Mach.,
231 F. Supp. 2d 828, 834-35 (S.D. III. 2002), the Southern District of Illinois
found that a plaintiffs inability to walk more than 100 yards without stopping
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did not constitute a sufficient limitation to establish a disability. Similarly,
the Fifth Circuit held in Talk v. Delta Airlines, Inc., 165 F.3d 1021 (5th Cir.
1999), that a plaintiff's leg deformity, which caused the plaintiff to walk with
a noticeable limp and caused the plaintiff to walk at a "significantly slower
pace than the average person" was not a "substantial limitation." Id. at
1025.
In Weberv. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999), the Eighth
Circuit held that a plaintiff was not disabled under the ADA even though he
suffered from heart disease, could not walk long distances, and was unable
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to climb stairs without becoming fatigued. Id. at 914. Similarly, in Ingles v.
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Neiman Marcus Corp., 974 F. Supp. 996 (S.D. Tex. 1997), the Southern
District of Texas held that a plaintiff suffering from diabetes, and missing
several toes, was not substantially limited in his ability to walk when he
could shop and perform daily activities. Id. at 1002. In the present matter,
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at all relevant times, Plaintiff was able to walk and admits that he "could
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perform the position of custodian without accommodations." (See PI.'s
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Ans. SMF 1f 167; see also Savidge Dep. Tr. 107.)
Although Plaintiff feels numbness when he walks, the federal courts
have refused to recognize plaintiffs as disabled even when they felt
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substantial pain when walking. See, e.g., Barker v. Andrew Corp., No. 96
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C-1111, 1997 WL 803866, at *1-4 (N. D. III. Dec. 31, 1997); see also Stone
v. Entergy Services, Inc., No. 94-2669, 1995 WL 368473, at *2-4 (E.D. La.
June 20, 1995)(holding plaintiff not "disabled" because he was unable to
run, had trouble climbing and descending stairs, walked slowly, and
suffered from muscle weakness and partial paralysis as a result of the
residual effects of mild polio). In Kelly v. Drexel University, 94 F.3d 102 (3d
Cir. 1996), the Third Circuit affirmed a decision of the district court in which
the court found that "moderate restrictions on the ability to walk are not
disabilities" under the Americans with Disabilities Act ("ADA"). Id. at 106.
While this Court is sympathetic to Plaintiff for the serious injuries he
sustained while serving his country, as a matter of law, Plaintiff fails to
demonstrate that a reasonable jury could find those injuries sufficient for
him to be considered "disabled" under the RA.
Plaintiffs deposition testimony establishes that he was, inter alia, able
to climb into a tree in the woods to hunt in 2007 and 2008. In Penny v.
United Parcel Service, 128 F.3d 408 (6th Cir. 1997), the Sixth Circuit
confronted a similar fact pattern and found, as a matter of law, that no
reasonable jury could find the plaintiff substantially limited in his ability to
walk given his hunting and fishing activities. Id. at 415. In the present
matter, Plaintiff admits that he not only hunted in the woods, but that he
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was able to climb into a tree stand. This Court similarly finds that no
reasonable jury could hold that Plaintiff suffers from a qualifying disability
under the RA in 2007 or 2008.
With regard to working, Plaintiff asserts in his opposition brief that he
"was limited in the jobs he could perform in 2007-2008." (See Pis.' Br. in
Opp. to Mot. Summ. J. 19 (citing Savidge Dep. Tr. 133:6-12).) First,
Plaintiff's citation to his own transcript reveals that the period to which
Plaintiff refers is 2010, and not the relevant period of 2007 through 2008,
when he was not selected for the custodial positions. See Sever v.
Henderson, 381 F. Supp. 2d 405,414 (M.D. Pa. 2005)(citing EEOC v.
Stowe-Pharr Mills, Inc., 216 F.3d 373, 379 (4th Cir. 2000)(relevant time for
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determining existence of substantial limitation of major life activity is at the
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time of the adverse action»; see also Walters v. Potter, 05-1745, 2007 WL
693978, *7 (M.D. Pa. Mar. 5, 2007)(Plaintiff was required to demonstrate
that he qualified as disabled at the time of the alleged employment
discrimination). In addition, Plaintiff testified that "since 2007 [he has been]
able to complete [his] job duties" provided he has assistance with moving
or lifting certain objects. (See Def.'s SMF 1111164-165; PI.'s Ans. SMF
1111164-165.) Even more important, Plaintiff admitted he "could perform the
position of custodian without accommodation." (See PI.'s Ans. SMF 1111
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167-168.) While Plaintiff argues that he was substantially limited in working
for the years 2007 and 2008, he fails to offer any relevant evidence to
substantiate this claim. Plaintiff asserts that he is disabled as to working,
but at the same time argues that he can perform in the custodial position
without accommodation. Accordingly, Plaintiffs own testimony and
submissions to the record demonstrate that he is not precluded from
working in a broad range of positions.
Similarly, Plaintiff fails to establish that he had a record of a disability
because he does not provide any evidence to support such a claim.
Plaintiff contends that his FMLA paperwork buttresses the allegation that
he has a record of a disability; however, the content of Plaintiff's FMLA
submissions does not address whether or how Plaintiff's fibromyalgia and
nerve palsy substantially limit his ability to walk or to care for himself. The
FMLA paperwork only notes that Plaintiff has an ability to work, is
"conducting light duty," and requires additional leave time for medical
treatment. In Tiee v. Centre Area Transp. Authority, 247 F.3d 506 (3d Cir.
2001), the Third Circuit held that "[a] plaintiff attempting to prove the
existence of a 'record' of disability still must demonstrate that the recorded
impairment is a 'disability' within the meaning of the ADA." Id. at 513.
Plaintiff does not meet this burden.
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Furthermore, the FMLA paperwork indicates that Plaintiff's conditions
are "intermittine (sic) - episodes of incapacity due to chronic medical
condition. However unable to predict the frequency of the episodes or
length." (PI.'s Br. in Opp. Mot. Summ J. 21-22.) As the Third Circuit noted
in McDonald v. Dep't of Welfare, 62 F.3d 92 (3d Cir. 1995), U[i]ntermittent,
episodic impairments are not disabilities." Id. at 96 (citing Vande Zande v.
Wisconsin Dep't of Admin., 44 F.3d 538,542 (7th Cir. 1995».
Finally, Plaintiff presents evidence in his opposition papers raising a
factual dispute as to whether Franco and the USPS regarded him as being
disabled under the RA. Plaintiff points to two comments made by Franco
including that he "did not want another Gene Pollack" and referencing
Plaintiff's inability to climb a ladder as evidence of such a belief. Wholly
apart from the fact that these comments' utterances are in dispute, and that
Plaintiff learned of them through a fellow employee/union officer, the
remarks themselves are sufficient to raise a genuine factual dispute as to
whether that Plaintiff was regarded as disabled. The Third Circuit and the
federal courts in Pennsylvania have generally held that a "stray remark,"
even if its existence is conceded, does not constitute an insurmountable
barrier to summary judgment. "Stray remarks by non-decisionmakers or
decisionmakers unrelated to the decision process are rarely given great
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weight, particularly if they were made temporally remote from the date of
decision." Opsatnik v. Norfolk Southern Corp., No. 06-0081,2008 WL
763745, * 12 (W.O. Pa. Mar. 20, 2008)(citing Ezold v Wolf, Block, Schorr &
Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992)). In a recent holding
concerning age discrimination, the Middle District of Pennsylvania rejected
the contention that "a single remark that might reflect the declarant's
recognition of an employee's age in a context unrelated to the employee's
termination is sufficient evidence to support a prima facie case of age
discrimination ...." Sanders v. Triangle Printing Co., Inc., 09-1851,2010
WL 4365864, *9 (M.D. Pa. Oct. 6, 2010)(citing Hyland v. Am. Int'l Group,
360 Fed. App'x 365, 367-68 (3d Cir. 2010)).
In the present matter,
however, Franco is a decision maker who partiCipated in the assessment of
whether Plaintiff's requests should have been granted. In addition, the
comments were not temporally remote from the decision to deny Plaintiffs
requests. Thus, the comments raise a material dispute as to whether
Franco and the USPS considered Plaintiff to be disabled.
Plaintiff asserts that Franco knew that Plaintiff walked with a limp,
remarked that he did not want to hire another Gene Pollack, and
commented that he Plaintiff could not climb a ladder. For the purpose of
the instant motion, Defendant concedes each of these assertions; however,
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Defendant maintains that these undisputed facts do not establish that
Franco, or any other USPS hiring official, regarded Plaintiff as being
substantially limited in any major life activity or incapable of performing a
variety of jobs. The Third Circuit has held that U[d]oubts alone do not
demonstrate that the employee was held in any particular regard, and, as
we have explained, inability to perform a particular job is not a disability
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within the meaning of the Act." Tice, 247 F.3d at 515 (internal citations
omitted). Federal courts are uniform in their application of this rule: "An
employer's awareness of an employee's medical condition, standing alone,
is not evidence that the employer regarded the employee as disabled."
Thorn v. BAE Sys. Hawaii Shipyards, Inc., 586 F. Supp. 2d 1213 (D. Hawaii
2008). Furthermore, "[t]he inability to perform a single job does not warrant
a finding that the plaintiff has a disability, instead, the plaintiff must
demonstrate that an entire class or range of jobs has been foreclosed."
Horlh v. Gen. Dynamic Land Sys., 960 F. Supp. 873, 878 (M.D. Pa.
1997)(citations omitted). Through his invocation of the alleged Gene
Pollack comments, Plaintiff has raised the possibility that Franco and the
USPS regarded Plaintiff as being precluded from performing in a broad
range of jobs. It is improper for the Court to make a factual determination
as to the credibility of these comments, or to speculate as to the reason
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they may have been made. Accordingly, we must refrain from entering
summary judgment.
C. Non-Discriminatory Reason for Denial of Transfer
Defendant posits that the USPS had a legitimate, non-discriminatory
reason for not transferring Plaintiff to the two custodial positions he sought.
Franco testified that Plaintiff was considered for the second custodial
position, along with three other union members, but that all four requests,
including Plaintiff's, were denied on the basis of unacceptable attendance
records. Defendant produced substantial records indicating the dates of
Plaintiff's emergency absences, and noted that many of them followed
previously scheduled vacation time. (See Def.'s SMF mJ 75-110.)
Defendant insists that no FMLA certified time was counted toward Plaintiff's
delinquencies. Plaintiff argues that Defendant does factor FMLA time into
its calculation regarding Plaintiff's unscheduled emergency leave, and that
many of Plaintiff's unexpected absences were wrongly recorded in the
attendance computer system so as not to reflect their FMLA status.
In support of Plaintiff's contention that his allegedly delinquent
attendance record is the result of the USPS's failure to properly record
Plaintiff's use of FMLA time, Plaintiff provides his FMLA paperwork (see
PI.'s FMLA Forms, ECF Dkt. 68-5) which demonstrates that he was
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permitted to take intermittent leave in order to tend to various medical
necessities. Accordingly, the question as to whether Plaintiff's attendance
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was properly recorded by the USPS is one of genuine material fact that
cannot be adjudicated on a motion for summary judgment, as it directly
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request.
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CONCLUSION
For the reasons set forth in this memorandum, Defendant's Motion for
Summary Judgment will be denied. An appropriate order will follow.
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DATE: March 30,2012
Robe
ariani
United States District Judge
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THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GARY A. SAVIDGE
Plaintiff
3:08-cy·2123
(JUDGE MARIANI)
Y.
PATRICK R. DONAHOE,
Postmaster General
Defendant
ORDER
On April 15, 2011, Defendant Patrick R. Donahoe filed a Motion for Summary
Judgment (Doc. 45). For the reasons set forth in the accompanying memorandum, NOW,
on this 30th day of MARCH, 2012, IT IS HEREBY ORDERED THAT:
1. Defendant's Motion for Summary Judgment (Doc. 45) is DENIED.
Robert D. Mariani
United States District Judge
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