Miller v. Coca-Cola Refreshments USA, Inc.

BRIEF in Opposition re Motion for Summary Judgment

W.D. Pa.June 29, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ROBERT D. MILLER, Plaintiff, v. COCA-COLA REFRESHMENTS USA, INC. d/b/a COCA-COLA REFRESHMENTS, Defendant. Civil Action No. 2:16-cv-00093-DSC Judge David S. Cercone JURY TRIAL DEMANDED PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT /s/ James W. Carroll James W. Carroll, Jr. (PA I.D. No. 21830) jwcarroll@rothmangordan.com Rothman Goldman, P.C. 310 Grant Street Third Floor, Grant Building Pittsburgh, PA 15219 Telephone: 412.338.1117 Facsimile: 412.246.1717 Counsel for Plaintiff, Robert D. Miller Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 1 of 26 I. Introduction As demonstrated below, the record in this case will establish that Plaintiff was disabled within the meaning of the Americans with Disabilities Act, was perceived as disabled and had a record of a disability. Moreover, the record will demonstrate that in violation of the Americans with Disabilities Act, the Age Discrimination In Employment Act and the Pennsylvania Human Relations Act, Defendant refused to allow the Plaintiff to return to work with a lifting restriction that would not have prevented him from performing the essential elements of his job, hired a non-disabled, younger employee to fill his position within two weeks of Plaintiff’s return to work without restrictions and ultimately terminated his employment. Defendant’s explanation for why it refused to return him to work with a minor lifting restriction, refused to return him to his position when he had no lifting restriction and terminated his employment are pretext for illegal age and disability discrimination. II. Statement of Facts The Plaintiff, Robert Miller, began working for Defendant in 1976. He was employed continuously by Defendant from 1976 through November 27, 2011 when he suffered a disabling stroke. Despite being able to return to work within three months of his stroke, Plaintiff never worked another day for Defendant and was ultimately terminated on May 30, 2013. During his 35 years of employment for Defendant, Plaintiff was a caring, smart, dedicated, loyal and respected employee. At the time of his stroke, Plaintiff was employed by Defendant as an Account Manager. Plaintiff’s Supervisor in this position was George Spencer, who described Plaintiff as a passionate, loyal and smart employee who knew how to get along with his customers. Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 2 of 26 2 In February 2012, Plaintiff was released by his occupational therapist to return to work with minor lifting restrictions. Plaintiff would have been able to perform all of the essential elements of his position with the lifting restrictions that were imposed upon him by his occupational therapist. When Plaintiff advised his supervisor that he would be able to return to work with a lifting restriction, he was told by both his supervisor and a human resources employee that he would not be permitted to return to work until he could return without any restrictions. Plaintiff was never asked by any representative of Defendant how he could perform his job duties within his lifting restrictions. While Defendant’s witnesses have suggested that they engaged in the interactive process, it is clear from the record that no meaningful interactive process took place. For example, neither Plaintiff nor his supervisor was ever asked how Plaintiff could perform the essential functions of his job within his lifting restrictions. Both Plaintiff and his supervisor testified that he could perform all essential functions of his job within his lifting restrictions. Plaintiff’s position as Account Manager had three duties. The first duty was to interact with the store owner or store manager of locations that sold Coca-Cola products in order to determine what products to order and to complete the appropriate paperwork. These duties required no lifting whatsoever and could obviously be performed without violating his lifting restrictions. Plaintiff’s second responsibility was to stock the shelves and coolers where needed at a customer’s location. The record will show that Defendant maintained a separate category of employee known as Merchandisers, who were primarily responsible for stocking the shelves and coolers in each store location. Plaintiff would only be required to perform this Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 3 of 26 3 duty where needed and Defendant actively discouraged Account Managers from performing this duty unless absolutely necessary. Again, the record will indicate that Plaintiff could perform this responsibility without violating his lifting restriction. Plaintiff’s last duty was to take inventory of the products at a customer’s location so that he would know what additional products to order. While this duty did not always require lifting, there was, at times, a need to move product in order to determine which products were there in order to do an accurate inventory. The testimony by both Plaintiff and his supervisor was clear that there was available a pallet jack in each location where it was necessary to move Coca-Cola products in order to do the inventory. This pallet jack would allow products to be moved without exceeding Plaintiff’s lifting restrictions. Thus it was clear that Plaintiff could perform all of the duties of his position within his lifting restrictions and that Defendant should have returned him to work in February 2012. Its failure to do so is a clear violation of the Americans with Disabilities Act, the Age Discrimination Employment Act and the Pennsylvania Human Relations Act. 1 In May 2012, Plaintiff was released by his occupational therapist to return to his job with no lifting restriction whatsoever. However, when Plaintiff notified Defendant that he was ready to return to work with no lifting restriction, he was advised that, two weeks earlier, it had given his position to a new employee who was 26 years of age. Despite the fact that Plaintiff was a well-known, experienced and high quality employee, Defendant did not even contact Plaintiff to determine when he would be able to return to work so that he could resume his position. The record evidence will again demonstrate that this decision by 1 This brief will not separately discuss Plaintiff’s PHRA claims because those claims are evaluated under the same standard as Plaintiff’s ADA and ADEA claims. Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 509 n.2 (3d Cir. 2004); Buskirk v. Apollo Metals, 307 F.3d 160, 166 n.1 (3d Cir. 2002). Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 4 of 26 4 Defendant was made in violation of Plaintiff’s rights under the Americans with Disabilities Act, the Age Discrimination Employment Act and the Pennsylvania Human Relations Act. The record will also show that Plaintiff applied for an alternate position with Defendant after they refused to return him to work when he had no lifting restrictions. The record testimony will show that Plaintiff was qualified for this position and that he would have been hired for this position but for his disability and his age. Lastly, the record will show that after failing to return Plaintiff to his original position and failing to hire him in an alternate position for which he was qualified, on May 30, 2013, Plaintiff was terminated. Plaintiff was 59 years of age at the time of the stroke, and was 60 years of age at the time of his termination. III. Summary Judgment On Plaintiff’s ADA Claim Is Inappropriate In This Case Because There Are Genuine Issues Of Material Fact A motion for summary judgment will be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 743 (3d Cir. 1996). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). The moving party bears the initial burden of showing that there is no genuine issue of material fact and that it is entitled to relief. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 5 of 26 5 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, the nonmoving party must present “specific facts showing that there is a genuine issue for trial,” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (internal quotation marks omitted), offering concrete evidence supporting each essential element of its claim, see Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. The nonmoving party must show more than “[t]he mere existence of a scintilla of evidence” for elements on which it bears the burden of production, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and may not “rely merely upon bare assertions, conclusory allegations or suspicions,” Fireman’s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). When a court evaluates a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. “Summary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed.” Ideal Dairy Farms, 90 F.3d at 744 (internal quotation marks and citations omitted). “[A]n inference based upon a speculation or conjecture,” however, “does not create a material factual dispute sufficient to defeat entry of summary judgment.” Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990). Summary judgment is not proper in this discrimination case because Defendant cannot meet its burden of persuading the Court that no reasonable jury could find in Plaintiff’s favor, given that all inferences drawn from the record evidence are viewed in a light most favorable to Plaintiff. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-151, 120 S.Ct. 2097, 2110 (2000); Abramson v. William Patterson College of New Jersey, 260 F.3d 265, 276 (3d Cir. 2001). Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 6 of 26 6 Given the genuine disputes of material fact in this record, Defendant’s motion for summary judgment should be denied. Fed. R. Civ. P. 56(c). IV. Summary Judgment Is Not Warranted Because The Record Contains Sufficient Facts To Prove Plaintiff’s Prima Facie Cases Of Discrimination And The Pretexual Nature Of Defendant’s Rationale There exists sufficient record evidence to prove Plaintiff’s prima facie cases of age discrimination and disability, perceived disability and/or record of disability discrimination as well as the pretextual nature of Defendant’s proffered reasons for terminating him. A. Plaintiff Can Prove His Prima Facie Case The ADA makes it unlawful for an employer to discriminate against an employee on the basis of his disability. In order to state a valid claim under the ADA, a plaintiff must establish that he (1) has a disability; (2) is qualified to perform the job; and (3) has suffered adverse employment action because of that disability. Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006). Courts repeatedly have stated that the elements of a plaintiff’s prima facie case should not be applied rigidly. Rather, depending on the factual situation present in a particular case, the elements should vary as required to establish the early presumption of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 1824, n.13 (1973); Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 352-355 (3d Cir. 1999); EEOC v. Metal Svc. Inc., 892 F.2d 341, 347 (3d Cir. 1990); Marzano v. Computer Science Corp., Inc., 91 F.3d 497, 503 (3d Cir. 1996). Since Plaintiff is able to establish each element of the prima facie case, he meets the initial burden imposed by law and Defendant’s motion for summary judgment must be denied. Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 7 of 26 7 1. Plaintiff Meets The First Element Of His Prima Facie Case Of Disability, Perceived Disability and/or Record of Disability Discrimination Because He Is A Member Of The Protected Class Under The ADAAA In order to show that he has a disability under the ADA, Plaintiff simply must show that 1) he has an actual mental or physical impairment that substantially limits one or more major life activities; 2) there is a record of such an impairment, or 3) that Defendant regarded him as having a disability. 42 U.S.C. § 12102(1). In September 2008, Congress broadened the definition of “disability” by enacting the ADA Amendments Act of 2008, Pub.L. No. 110–325, 122 Stat. 3553 (“ADAAA” or “amended Act”). In response to a series of Supreme Court decisions that Congress believed improperly restricted the scope of the ADA, it passed legislation with the stated purpose of “reinstating a broad scope of protection to be available under the ADA.” Id. § 2(b)(1). Particularly relevant to this case, Congress sought to override Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 199, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), in which the Supreme Court had adopted a strict construction of the term “disability” and suggested that a temporary impairment could not qualify as a disability under the Act. Congress believed that Toyota set an “inappropriately high level of limitation necessary to obtain coverage under the ADA.” Pub.L. No. 110–325, § 2(b)(5). Abrogating Toyota, the amended Act provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by [its] terms.” 42 U.S.C. § 12102(4)(A). Further, Congress instructed that the term “substantially limits” be interpreted consistently with the liberalized purposes of the ADAAA. Id. § 12102(4)(B).1 And Congress directed the Equal Employment Opportunity Commission (“EEOC”) to revise its regulations defining the term Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 8 of 26 8 “substantially limits” to render them consistent with the broadened scope of the statute. Pub.L. No. 110–325, § 2(b)(6). After notice and comment, the EEOC promulgated regulations clarifying that “[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and that the term is “not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i) (2013). The EEOC regulations also expressly provide that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving an actual disability. Id. § 1630.2(j)(1)(ix). According to the appendix to the EEOC regulations, the “duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity.” Id. § 1630.2(j)(1)(ix) (app.). Although “[i]mpairments that last only for a short period of time are typically not covered,” they may be covered “if sufficiently severe.” Id. The EEOC appendix illustrates these principles: “[I]f an individual has a back impairment that results in a 20–pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.” Id. The ADAAA did not change the definition of disability, but did change the way in which this definition was to be interpreted and applied. See id. § 12102(3)(B) (precluding individuals from “being regarded as having” an impairment if the impairment is transitory under § 12102(1)(C), but not precluding transitory impairments from qualifying as a disability under § 12102(A) or (B)). In doing so, the ADAAA made it easier for individuals to qualify as disabled. Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 9 of 26 9 In light of § 12102(1)'s definition, the EEOC established rules of construction to apply when determining whether an impairment substantially limits a major life activity. See 29 CFR § 1630.2(j)(1)(i) (“The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. ‘Substantially limits’ is not meant to be a demanding standard.”); 29 CFR § 1630.2(j)(1) (vii) (“An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”); 29 CFR § 1630.2(j)(1)(ix) (“The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.”). The determination of whether an individual is substantially limited in a major life activity must be made “on a case-by-case basis.” Albertson’s Inc. v. Kirkingburg, 527 U.S. 555, 566, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). What matters is not the name or diagnosis of the impairment but “the effect of the impairment on the life of the individual.” Id. “An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). The ADAAA requires a “less searching analysis” of whether a plaintiff is “substantially limited.” Kravits v. Shinseki, No. 10–861, 2012 WL 604169, at *7, 2012 U.S. Dist. LEXIS 24039, at *17 (W.D. Pa. Feb. 24, 2012). The EEOC has noted that under the ADAAA, “substantially limits” is “not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i) and (iii). “Rather, ‘the determination of whether an impairment substantially limits a major life activity requires an individualized assessment,’ and should ‘require a degree of functional limitation that is lower than the standard for ‘substantially Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 10 of 26 10 limits' applied prior to the ADAAA.’” Cohen v. CHLN, Inc., No. 10–514, 2011 WL 2713737, at ∗7, 2011 U.S. Dist. LEXIS 75404, at *20 (E.D. Pa. July 13, 2011). The record makes clear that Plaintiff’s therapist restricted him from performing work that required him lift more than 10 pounds overhead, 11 pounds to shoulder level, and any weight at all over 26 pounds (SOF pp 43). As a result, Plaintiff has presented evidence of substantial limitations to major life activities for a period extending from the date of his stroke, November 23, 2011 (SOF #33), until he was released to return to work without restrictions on May 25, 2012, a period of six months (PA Tab A at 16). The lifting restriction easily exceeds the time period cited in the EEOC regulations. Whether an individual is substantially limited in a major life activity is a question of fact. Williams v. Philadelphia Hous. Auth. Police Dep't., 380 F.3d 751, 763 (3d Cir. 2004). The ADAAA defines major life activities as including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). Accordingly, Plaintiff’s lifting restriction constitutes a major life activity. Furthermore, Plaintiff has demonstrated an impairment that is “substantially limiting” under the statute. EEOC Regulations specifically note that an individual that suffers from an impairment that results in a lifting restriction, such as Plaintiff’s, is substantially limited in the major life activity of lifting. 29 CFR § 1630.2(j)(1)(ix) (App.) (“[I]f an individual has a back impairment that results in a 20–pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.”). EEOC regulations ∗ Plaintiff will cite to the record using the following references “SOF’ Defendant’s Statement of Material Facts, “PSOS” Plaintiff’s Response to Defendant’s Statement of Material Facts or “PA” Plaintiff’s appendix. Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 11 of 26 11 clearly indicate that Plaintiff has presented a genuine issue of material fact concerning whether he is substantially limited in the major life activity of lifting and thus qualifies as disabled under the ADAAA. Defendant’s reliance on McFarlan to minimize Plaintiff’s disability is misplaced. The court in Jacobs v. York Union Rescue Mission, Inc., No. 1:12-CV-0288, 2014 WL 6982618 (M.D. Pa. Dec. 10, 2014), discussed how the ADAAA and the cases decided since its passage have treated lifting restrictions. The court recognized, for instance, that the ADA is now applicable to some short-term impairments. See 29 CFR § 1630.2(j)(1)(ix). The rules of construction state that “[t]he effects of an impairment lasting or expected to last fewer than six months can [now] be substantially limiting.” Id. The rules further explain that “if an individual has a back impairment that results in a 20–pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.” 29 CFR § 1630 app. The rules apply precisely to Plaintiff, thus satisfying Plaintiff’s burden of establishing disability. In addition to an actual impairment that substantially limits a major life activity, an individual can have a record of a disability if he has a “history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” 29 C.F.R. § 1630.2(k). To establish a record of disability, Plaintiff must show that he had a “history of, or [had] been misclassified as having, an impairment that substantially limited a major life activity.” Eshelman v. Agere Sys., Inc., 554 F.3d 426, 437 (3d Cir. 2009) (internal citations omitted). Here, Plaintiff has provided sufficient evidence regarding a record of disability to proceed to trial. As explained herein and set forth in his Statement of Material Facts, Plaintiff has provided evidence demonstrating that he has a Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 12 of 26 12 history of stroke-related deficits that substantially limited his ability to lift. Plaintiff has also shown that Defendant relied on Plaintiff’s record of disability in making its employment decisions. Accordingly, Defendant’s motion for summary judgment on this issue should be denied. In addition, Defendant incorrectly argues that Plaintiff must show that Defendant regarded him as having an actual disability. Rather, Plaintiff need only show that Defendant perceived him as disabled, regardless of whether Plaintiff’s medical condition qualifies as an actual disability under the ADAAA2. The pre-amendment ADA required a plaintiff to show that the employer either “mistakenly believed that [the employee has] a physical impairment that substantially limits one or more major life activities” or “mistakenly believed that an actual non-limiting impairment substantially limits one or more major life activities.” Fleck v. WILMAC Corp., CIV.A. 10-05562, 2011 WL 1899198 (E.D. Pa. May 19, 2011), quoting, Wilson v. MVM, Inc., 475 F.3d 166, 179 (3d Cir. 2007) (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139 (1999); see also 29 C.F.R. § 1630.2(l) (1), (3) (2006) (defining “regarded as having such an impairment”). Under the more expansive standards of the ADAAA, an individual is regarded as disabled if he establishes that “he has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment ....” Pub.L. No. 110–325 § 3(3)(A), 122 Stat. at 3555. In contrast to the pre- amendment ADA, an individual is now “regarded as” disabled under the ADAAA “whether or not the impairment limits or is perceived to limit a major life activity.” Id. To satisfy the “regarded as” standard, Plaintiff need only show that he was terminated because of an actual or perceived impairment. It is no longer necessary that the 2 As of January 1, 2009, the Americans with Disabilities Act Amendment Act (“ADAAA”) became effective. Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 13 of 26 13 impairment be perceived by the employer to limit or “substantially limit” a major life activity. 42 U.S.C. § 12102(3)(A); 29 C.F.R. §§ 1630.2(g)(1)(iii) and 1630.2(l)(1). Thus, Plaintiff need not be “substantially limited” in a major life activity. A plaintiff is “regarded as” having a disability if s/he: (1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the covered entity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) Has [no such impairment] but is treated by a covered entity as having a substantially limiting impairment. Taylor v. Pathmark, 177 F.3d at 187 (quoting 29 C.F.R. § 1630.2(I) (1996)). In a “regarded as” case, the analysis “focuses not on [the plaintiff] and his actual abilities, but rather on the reactions and perceptions of the persons interacting or working with him.” Kelly v. Drexel Univ., 94 F.3d 102, 108–109 (3d Cir. 1996). “[I]n general, an employer’s perception that an employee cannot perform a wide range of jobs suffices to make out a ‘regarded as’ claim.” Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3d Cir. 1999). Before the 2008 amendments, “the mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate . . . that the employer regarded the employee as disabled.” Kelly, 94 F.3d at 109. However, after the 2008 amendments to the ADA, all that an ADA plaintiff must show to raise a genuine issue of material fact for the “regarded as” prong is that a supervisor knew of the purported disability. Mengel v. Reading Eagle Co., Civ. A. No. 11–6151, 2013 WL 1285477, at *4 (E.D. Pa. Mar. 29, 2013) (citing Estate of Murray v. UHS of Fairmount, Inc., Civ.A. No. 10–2561, 2011 WL 5449364, at *9 (E.D. Pa. Nov. 10, 2011)). See also Rubano v. Farrell Area School Dist., 991 F.Supp.2d Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 14 of 26 14 678, 693 (W.D. Pa. 2014) (rejecting Kelly, which was decided under the pre-ADAAA standards, and holding that employee had raised a genuine issue of fact for the jury as to whether he was disabled under the new ADAAA standard of disability by demonstrating that his employer knew of his disabling condition). In Estate of Murray, the district held that “[b]ecause the ADAAA no longer requires a showing that [the plaintiff’s] impairment was perceived to substantially limit a life activity . . . a genuine issue of material fact [had been raised] as to whether [the plaintiff] was regarded as disabled by [the employer] under the ADAAA” where the employee has shown that her supervisors knew of the purported disability. 2011 WL 5449364, at *9. There is no dispute that Plaintiff kept Defendant well informed of his medical treatment and condition. The references in the record that demonstrate clearly that Plaintiff had a record of a disability and that Plaintiff was perceived by Defendant as disabled are collected as an Exhibit in Plaintiff’s Appendix at Exhibit H and are described in Plaintiff’s Statement of Facts at 85. It is clear based on the record evidence that Defendant perceived that Plaintiff could not perform his job, even though the facts, had Defendant taken the time to “interact” with Plaintiff and explore his abilities, would have come to the realization that Plaintiff was able to perform the essential functions of his job. These facts are sufficient for Plaintiff to prove the necessary elements of his prima facie case of disability discrimination. 2. Plaintiff Meets the Second Element of His Prima Facie Case of Disability and/or Perceived Disability Discrimination A review of the record evidence in the case shows that Plaintiff was certainly otherwise qualified to perform the essential functions of the Account Manager- Large Store position with or without an accommodation. A “qualified individual” is defined as one “who, with or without reasonable accommodation, can perform the essential functions of Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 15 of 26 15 the employment position that such individual holds or desires.” 42 U.S.C. §12111(8); Turner, 440 F.3d at 611. Defendant concedes that Plaintiff has the qualifications to perform the Account Manager- Large Store position, but argues that Plaintiff cannot perform the essential functions of the job even with a reasonable accommodation because of his physical limitations. This is simply not supported by the evidence. The record facts that demonstrate that Plaintiff could perform the essential functions are set out in Plaintiff’s Declaration (PA Tab A at 11-14) and the Declaration of George Spencer. (PA Tab B at 14). See also PSOF, pp 82-84. Assuming arguendo that Plaintiff could not perform the essential functions of his job without an accommodation, even though it is clear that he could, the remaining inquiry is whether Defendant could have provided Plaintiff with a reasonable accommodation to assist Plaintiff in performing the essential functions of his job. Generally, whether a proposed accommodation is reasonable is a question of fact. Buskirk v. Apollo Metals, 307 F.3d 160, 170 (3d. Cir. 2002). As indicated above, the only accommodation needed from Defendant was to allow Plaintiff to return to work with a lifting restriction since it is at least disputed, by both Plaintiff and his Supervisor, that he could perform all of the essential functions of his job with his lifting restrictions. Once a plaintiff shows that a proposed accommodation is possible, the burden shifts to the defendant to prove, as an affirmative defense, that the requested accommodation is unreasonable or would cause an undue hardship. Turner v. Hershey Chocolate USA, 440 F.3d 604, 614 (3d Cir. 2006). “[A]n employer discriminates against a qualified individual with a disability when the employer does ‘not make reasonable accommodations to the known physical or mental limitations of the individual unless the employer can demonstrate that the accommodation Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 16 of 26 16 would impose an undue hardship on the operation of the business of the [employer].’” Taylor, 184 F.3d at 306 (quoting 42 U.S.C. § 12112(b)(5)(A)). To determine the appropriate reasonable accommodation, the employer should initiate the interactive process. See 29 C.F.R. § 1630.2(o )(3). “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.” 29 C.F.R. pt. 1630, app. § 1630.9. Both parties bear responsibility in this process. Taylor, 184 F.3d at 312. An employee such as Plaintiff can demonstrate that his employer failed to engage in the interactive process by showing (1) “the employer knew about the employee’s disability”; (2) “the employee requested accommodations or assistance for his or her disability”; (3) “the employer did not make a good faith effort to assist the employee in seeking accommodations”; and (4) “the employee could have been reasonably accommodated but for the employer's lack of good faith.” Taylor, 184 F.3d at 319–20. That Defendant had a “100% healed” policy certainly exacerbated the problem. Employers who require employees to be 100% healed or “restriction free” before returning from FMLA leave may violate the ADA. Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 195 (3d Cir. 2009). Although the Third Circuit has not directly decided the issue, it explained in Hohider that a 100% healed policy “could be per se violative of the ADA because, when it is applied against qualified individuals with disabilities, it would, by its very terms, discriminate against those protected individuals on the basis of their disabilities, systematically denying them the reasonable accommodations to which they are entitled Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 17 of 26 17 and excluding them from employment for which they are otherwise qualified.” Hohider, 574 F.3d at 195 (citing cases that have found a 100% rule to be a per se violation). See also Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001) (finding that a “‘100% healed’ rule was a per se violation of the ADA” if the individual was “disabled” under the statute); McGregor v. Nat’l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999) (finding that a “‘100% healed’ or ‘fully healed’ policy discriminates against qualified individuals with disabilities because such a policy permits employers to substitute a determination of whether a qualified individual is ‘100% healed’ from their injury for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation.”). Again, there is sufficient evidence of record for a reasonable juror to conclude that Plaintiff informed Defendant of his need for assistance. Defendant admits that it had several conversations with Plaintiff about his lifting restrictions and that Defendant offered no relief. Where Plaintiff has shown his disability, his qualifications, and his request to return to work with a lifting restriction, Defendant’s “restriction-free” policy creates a genuine issue of material fact that allows Plaintiff to present his claims to a jury. 3. Plaintiff Meets The Third Element Of His Prima Facie Case of Disability and/or Perceived Disability Discrimination Despite Defendant’s claim that Plaintiff cannot meet the third element of his prima facie case, there is no question that he can. First, he was not allowed to return to work in February 2012 despite being able to perform all of the essential functions of his job with his lifting restriction. This alone requires the denial of Defendant’s Motion. In addition, Plaintiff suffered two additional adverse employment actions when he was not allowed to return to work when he no longer had a lifting restriction and when he was terminated. Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 18 of 26 18 Second, the record contains sufficient evidence to create an inference that Plaintiff’s termination was based on his disability or perceived disability. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 1310, (1996); Pivirotto, 191 F.3d 344. The Third Circuit Court stated that “[w]hen focusing on the prima facie case, we have repeatedly emphasized that the requirements of the prima facie case are flexible, and in particular that ‘the fourth element must be relaxed in certain circumstances’” and “we have never held that the fourth element of the prima facie case should be relaxed only when there is a reduction in force.” Roach v. Am. Radio Sys. Corp., 80 F. Supp. 2d 530, 531-32 (W.D. Pa. 1999). Thus, in order to establish his prima facie case of discrimination, Plaintiff simply must create the inference that he was discharged because of his disability or perceived disability. Id. Notably, there exists record facts showing Defendant’s discriminatory mindset against Plaintiff because of his disability or perceived disability. Those facts include that Plaintiff was not permitted to return to work until he was restriction free (PA Tab A, Miller Decl., at 8; PA Tab B, Spencer Decl., at 15-16), that Defendant failed to engage in the interactive process despite pretending to do so, and that Defendant never contacted Plaintiff prior to filling his position with another employee. (Szagala Dep. at 25: 21-26:4). 4. Defendant Failed to Reasonably Accommodate Plaintiff by Failing to Engage in the Interactive Process in Good Faith Failure of an employer to make a reasonable accommodation for a disabled and qualified employee constitutes discrimination under the ADA. Taylor, 184 F.3d 296, 306 (3d Cir. 1999). Reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, and other similar accommodations for individuals with disabilities. Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 19 of 26 19 Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240 (3d Cir. 2006). Significantly, “the question of whether a proposed accommodation is reasonable is a question of fact.” Buskirk v. Apollo Metals, 307 F.3d 160, 170 (3d Cir. 2002). As the record shows, Defendant failed to provide Plaintiff with reasonable accommodations. a. Plaintiff Made Efforts To Facilitate The Interactive Process And Defendant Failed To Meet Its Obligations Once an employee makes a request for a reasonable accommodation, it is his employer’s duty to engage in an “interactive process.” Williams, 380 F.3d 751, 771 (3d Cir. 2004). The employer’s obligation to engage in the interactive process with the employee requesting an accommodation exists for the employer to “be able to ascertain whether there is in fact a disability and, if so, the extent thereof, and thereafter be able to assist in identifying reasonable accommodations where appropriate.” Id. at 771. The process should “identify the precise limitations and potential reasonable accommodations that could overcome those limitations.” Id. (citing, 29 C.F.R. § 1630.2(o)(3)). The record shows Plaintiff provided his limitations to Defendant (Miller Dep. Ex. 16) and his supervisor understood that Plaintiff could perform his job with his lifting restrictions. (Miller Decl. at 5; Spencer Decl. at 14). By speaking with Stephanie Duffy regarding his limitations, Plaintiff upheld his “duty to assist in the search for appropriate reasonable accommodation and to act in good faith.” Williams, 380 F.3d at 771 (citing Mengine v. Runyon, 115 F.3d 415, 420 (3d Cir. 1997)). Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 20 of 26 20 Defendant, however, failed to engage in the requisite interactive process because it failed to ask Plaintiff how he could perform the essential elements of his job within his lifting restrictions. (PA Tab A, Miller Decl., at 9-10). B. The Record Contains Sufficient Evidence of Pretext At the final stage of the analysis, the burden shifts back to the plaintiff, who must demonstrate the reason offered by the employer was not the real reason, but rather, a mere pretext for illegal employment discrimination. McDonnell Douglas, 93 S. Ct. at 1825; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 2748 (1993). The proper inquiry is why did the employer take an adverse employment action against the plaintiff. Marzano, 91 F.3d at 509. Plaintiff can prove pretext through two approaches: (i) Provide evidence in addition to the prima facie case, either direct or circumstantial, to demonstrate that discrimination was more likely than not the real reason. Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir. 1995); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). This is sometimes called “prong 1.” See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)(en banc); or (ii) Cast doubt on the employer's stated reason by identifying such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Brewer, 72 F.3d at 331; Fuentes; 32 F.3d at 765. This is sometimes called “prong 2.” Keller, 130 F.3d at 1111. Under either prong, the fact finder’s disbelief of the employer’s stated reasons justifies an inference that the reasons offered are pretextual, particularly when the employer Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 21 of 26 21 is suspected of mendacity. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147- 48, 120 S.Ct. 2097, 2108 (2000); Hicks, 113 S. Ct. at 2749. At the summary judgment stage, a plaintiff need not provide evidence directly contradicting each and every reason offered by the employer. Antol v. Perry, 82 F.3d 1291, 1300 (3d Cir. 1996); Fuentes, 32 F.3d at 764. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). The question is not whether the record necessarily leads to a conclusion that the employer’s reasons are pretexts, but simply whether the record could support such an inference. Sempier v. Johnson & Higgins, 45 F.3d 724, 732 (3d Cir. 1995). Here, there are sufficient record facts that call into question the legitimacy of Defendant’s rationale. The principal factual dispute is whether Plaintiff could perform his job within his lifting restriction. Plaintiff and his supervisor believed he could (Miller Decl. at 5; Spencer Decl. at 14), while Defendant believed he could not. This factual dispute is at the heart of both Plaintiff’s ADA claim as well as his age discrimination claim. In addition, there is a factual dispute about whether Plaintiff was told he could not return to work with any restriction whatsoever. Plaintiff and his supervisor have asserted this. (PA Tab A, Miller Decl., at 8; PA Tab B, Spencer Decl., at 15-16). Plaintiff’s supervisor’s supervisor, Mario Fiordilino, testified he may have said that but does not know because he cannot recall it. (Fiordilino Dep. at 77:11-78:12). There is also a dispute as to whether the required interactive process occurred. Taken as a whole, the record clearly disputes Defendant’s claim that the interactive process did occur. Here, Defendant’s complete disregard for the laws relating to discrimination is appropriate evidence to establish pretext. Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 22 of 26 22 V. Summary Judgment of Plaintiff’s Age Discrimination Claim Should be Denied The ADEA prohibits employers from “discharg[ing] any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). To succeed on an ADEA claim, a plaintiff must establish, by a preponderance of the evidence, that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Age discrimination claims in which the plaintiff relies on circumstantial evidence proceed according to the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (reaffirming the application of a “slightly modified version of [McDonnell Douglas ] in ADEA cases”). Under this framework, the plaintiff must first establish a prima facie case of discrimination. Keller, 130 F.3d at 1108 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Satisfying the prima facie elements creates an “inference of unlawful discrimination.” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) (quoting Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir. 1995)). The elements of a prima facie case of age discrimination are that the plaintiff: (1) is at least forty years old; (2) suffered an adverse employment decision; (3) was qualified for the position in question; and (4) was ultimately replaced by another employee who was sufficiently younger so as to support an inference of a discriminatory motive. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). The Third Circuit has indicated the prima facie case is not “intended to be rigid, mechanized, or ritualistic.” Pivirotto, 191 F.3d at 352 Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 23 of 26 23 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)). Where the plaintiff is not directly replaced, the fourth element is satisfied if the plaintiff can provide facts which “if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Id. Once the plaintiff has successfully established a prima facie case creating an inference of discrimination, the burden shifts to the employer who must “articulate a legitimate nondiscriminatory reason for the adverse employment action.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 412 (3d Cir. 1999) (citing Keller, 130 F.3d at 1108). This second step of McDonnell Douglas does not require that the employer prove that the articulated legitimate, nondiscriminatory reason was the actual reason for the adverse employment action. Instead, the employer must provide evidence that will allow the factfinder to determine that the decision was made for nondiscriminatory reasons. Fuentes, 32 F.3d at 763. If the employer satisfies this second step, the burden shifts back once more to the plaintiff to show, by a preponderance of the evidence, that the employer's proffered legitimate, nondiscriminatory reason was pretextual. Burton, 707 F.3d at 426–27. In Fuentes v. Perskie, this Court recognized two ways in which a plaintiff can demonstrate that the employer's legitimate, nondiscriminatory reason was pretextual. 32 F.3d at 762. The first way to show pretext is for the plaintiff to point to evidence that would allow a factfinder to disbelieve the employer's reason for the adverse employment action. Id. at 765. In order to raise sufficient disbelief, the evidence must indicate “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons” to satisfy the factfinder that the employer's actions could not have been for nondiscriminatory reasons. Id. Alternatively, the second way a plaintiff can establish pretext Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 24 of 26 24 is to point to evidence that would allow a factfinder to believe that an invidious discriminatory reason was “more likely than not a motivating or determinative cause” of the employer's action. Id. at 764. Specifically, the plaintiff can show pretext this way by presenting evidence “with sufficient probative force” so as to allow the factfinder to “conclude by a preponderance of the evidence that age was a motivating or determinative factor.” Simpson, 142 F.3d at 644–45 (citing Keller, 130 F.3d at 1111). Pointing to evidence demonstrating any of the following satisfies this second way to prove pretext: (1) the defendant previously discriminated against the plaintiff; (2) the defendant discriminated against others within the plaintiff's protected class; or (3) the defendant has treated similarly situated, substantially younger individuals more favorably. Simpson, 142 F.3d at 645 (citing Fuentes, 32 F.3d at 765). If this step is satisfied, at trial the plaintiff must convince the factfinder that not only was the employer’s proffered reason false, but the real reason was impermissible discrimination. Fuentes, 32 F.3d at 763 (quoting St. Mary's Honor Ctr., 509 U.S. at 515, 113 S.Ct. 2742). Plaintiff satisfies the prima facie case of age discrimination. Plaintiff was 59 at the time Defendant refused to allow him to return to work with his lifting restriction and 60 at the time of his termination. He was not allowed back to work, then not re-hired in a different position, then terminated, all of which constitute an adverse employment action. As set forth in earlier portions of this brief, Plaintiff was qualified for his position. And Plaintiff was replaced by two younger employees. If Defendant meets its burden as to the second step, Plaintiff can also show that Defendant’s decision was pretextual. There was testimony from Plaintiff’s supervisor, George Spencer, who stated that Plaintiff’s age played a role in all of Defendant’s decisions. (Spencer Dep. 73:11-18, 76:2-5, 79:8-15, 88:16-25). Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 25 of 26 25 Moreover, Mr. Spencer was skeptical about Defendant’s approach to hiring younger candidates over candidates with decades more experience, like Plaintiff. Mr. Spencer’s testimony and declarations would tend to indicate that Defendant is biased against older employees. Plaintiff also testified that he was repeatedly called “old school”, which Plaintiff believed was a clear reference to age. This bothered Plaintiff enough that he complained about it. (Spencer Dep. 90:24-91:6; Miller Dep. 29:18-25). Cumulatively, the evidence shows that the real reason behind Defendant’s decisions was Plaintiff’s age. Put more simply, Plaintiff has shown not only that Defendant’s proffered reasons were wrong, but that they were so plainly wrong that they cannot have been Defendant’s real reason, which defeats Defendant’s request for summary judgment. Keller, 130 F.3d at 1109. VI. Conclusion Plaintiff was disabled, perceived as disabled, and had a record of a disability. In violation of the ADA, the ADEA and the PHRA, Defendant refused to allow Plaintiff to return to work with a lifting restriction that would not have prevented him from performing the essential elements of his job. Thereafter, Defendant hired a non-disabled, younger employee to fill his position within two weeks of Plaintiff’s return to work without restrictions, and ultimately terminated Plaintiff’s employment. Defendant’s explanations for its actions are pretext for illegal age and disability discrimination. As such, Defendant’s Motion must be denied. Respectfully submitted, /s/ James W. Carroll James W. Carroll, Jr. (PA I.D. No. 21830) Attorney for Plaintiff 4820-0039-0219, v. 2 Case 2:16-cv-00093-DSC Document 30 Filed 06/29/17 Page 26 of 26