NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 10

- 1 730

____________ EDWARD M. SUPINSKI,

Appellant

v. UNITED PARCEL SERVICE, INC.; CATHY CLINE; TRACEY NEWCOMER

____________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No s . 3: 06

- cv - 0 793 and 3: 08

- cv - 0 371 ) District Judge: Honorable Thomas I. Vanaskie

____________ Argued January 5 , 2011 Before: AMBRO and FISHER, Circuit Judg es , and S Á NCHEZ , * District Judge

. (Filed: February 15, 2011 ) Cynthia L. Pollick, Esquire (Argued) 363 Laurel Street Pittston, PA 18640 Kimberly M. Kaplan, Esquire (Argued) Miriam S. Edelstein, Esquire Reed Smith LLP 2500 One Liberty Place 1650 Market Street Philadelphia , PA 19103

- 7301

* The Honorable Jua n R. Sánchez, District Judge of the United States District Court for the Eastern District of Pennsylvania, sit ting by designation.2 ____________ OPINION OF THE COURT

____________ SÁNCHEZ , District Judge

. Edward Supinski appeals from two orde rs of the District Court, which together granted summary judgmen t in favor of Supinski‟s former employer, United Parcel Servic e, Inc. (UPS) , and two individual UPS employees on Supinski‟s claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (PH R A), 43 Pa. Stat. Ann. § 951 et seq. After a should er injury left him u nable to return to his position as a package car driver , Supinski sued UPS to redress the company‟s failure to accommodate him by placing him in a position he could perform with his physician

- imposed lifting restrictions. Because we conclude there is a genuine factual issue as to whether Supinski was a “qualified individual” with respect to the alternative positions he sought and did not obtain , we will reverse the order s granting summary judgment in favor of UPS and remand for further proceedings

con sistent with this opinion.
I. Supinski began working for UPS in 1979 as a car w asher and eventually moved into the position of package car driver at the UPS f acility in Taylor, Pennsylvania . In October 2000, Supinski suffered a work

- related rotator cuff tear of his right shoulder , for which he underwent surgery and a period of physical therapy. In Octo ber 2001, Supinski‟s orthopedic surgeon approved him to return to work with the following permanent lifting restrictions: “[s]eventy pound lifting limit t o waist level, twenty

- five pound lifting limit to shoulder level, [and] twenty3

pound liftin g limit overhead.” (App. 79.) Although these restrictions meant Supinski could no longer perform his package car driver job (App. 541 ) , he sought to return to UPS in another position that he could perform despite his lifting restrictions. In November 2002, UPS notified Supinski the company had concluded he was not eligible for a reasonable accommodation under the ADA. (App. 578. ) Supinski thereafter filed a

c h arg e of d iscrimination with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Relations Commission (PHRC) , alleging disability discrimination based on UPS‟s failure to provide him with a reasonable accommodation when there were “jo bs available that [he] could perform with [his] restrictions.” (App. 575.) Supinski also continued to seek employment with UPS through his union

. At some point prior to May 2005, Supinski applied for a feeder driver p osition (App. 288) , and i n July 20 06, he applied for a com bined position as a car washer/u nloader (App. 92)

. Supinski was not hired for either position

. In March 2006, Supinski filed suit against UPS in the Lackawanna County Court of Common Pleas ( Supinski I ) , asserting PHRA claims for d isability discrimination, failure to accommodate, and retaliation. 1 After UPS removed the case to the United States District Court for the Middle District of Pennsylvania, Supinski amended his complaint to include ADA claims against UPS and PHRA claims ag ainst two UPS employees , and t he defendants moved for summary judgment

. In February 2008, while the defendants‟ summary judgment motion was pending, Supinski filed a second disability discrimination action against UPS ( Supinski II ) in the

1 Supinski also asserted a state law claim for wrongful discharge, which he later withdrew.4

same federal cou rt , asserting ADA and PHRA claims based on UPS‟s failure to hire him for t he car washer/u nloader position. In January 2009, the District Court granted summary judgment for the individual defendants and granted partial summary judgment for UPS on Supinski‟ s retaliation cla im in Supinski I , but permitt ed Su pinski‟s remaining claims to go forward. The District Court concluded that although Supinski had not presented any evidence to suggest he had an actual disability

— i.e. , “a physical or mental impairment th at substantially limits one or more major life activities of [an] individual”

— the evidence was sufficient to create a genuine factual issue as to whether Supinski nevertheless had a disability within the meaning of the ADA because UPS regarded him as havin g such an impairment. 42 U.S.C. § 12102 (1)

. 2 In February 2009, the District Court consolidated Supinski I and Supinski II , and UPS thereafter filed a motion for summary judgment in the consolidated action. In February 2010, the District Court granted th e motion in its entirety. The District Court concluded Supinski could not prevail on hi s disability discrimination and failu re to accommodate claims as a matter of law because he failed to show he could meet the lifting requirements of the car washer/u nlo ader a nd feeder d river positions , and because U PS was not required to modify essential job functions to accommodate him. The District Court also concluded Supinski ‟s retaliation claim failed as a matter of law because Supinski could not establish a causal connection between his protected

2 Effective January 1, 2009, Congress amended the ADA to provide “[a] covered entity . . . need not provide a reasonable accommodation . . . t o an individual who meets the [ADA‟s] definition of disability . . . solely [on the basis of being regarded as having a disability].” ADA Amendments Act of 2008, Pub. L. No. 110

- 325, 122 Stat

. 3553, 3558 (2008). UPS does not argue this provision should b e applied retroactively, but “assumes that it would have been obligated, at the time [of the events in question], to provide reasonable accommodation to Supinski had it mistakenly regarded him as disabled.” (Appellee‟s Br. 11 n.2.)5

conduct and UPS‟s refusal to hire him for vacant positions where the record showed Supinski could not perform an essential function of th ose positions. Finally, the District Court held Supinski had failed to establis h a c laim based on a pattern or practice of discrimination. Supinski appeal s, arguing the District Court erred in (1) concluding that heavy lifting exceeding Supinski‟s restrictions was an essential function of the car washer/unloader and feeder d river posit ions; (2) failing to consider whether there was some reasonable accommodation that would have permitted Supinski to perform the essential functions of those positions; (3) failing to consider Supinski‟s ability to perform the essential functions of positio ns o ther than car washer/unloader and feeder d river; (4) declining to apply principles of estoppel to preclude UPS from contesting his ability to perform any jobs based on its contrary position in his worker‟s compensation proceedings; and (5) dismissing h is retaliation claim.
II. The District Court had jurisdiction unde r 28 U.S.C. § 1331 and § 1332, and we have jurisdiction pursuant to 28 U. S.C. § 1291

. We review the grant of summary judgment de novo , applying the same standard as the District Court. De ane v. Pocono Med. Ctr. , 142 F.3d 138, 142 n.3 (3d Cir. 1998) (en banc) . Summary judgment is proper when, viewing the facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party‟s favor, “the movant shows t hat 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); Hugh v. Butler Cnty. Family
YMCA , 418 F.3d 265, 267 (3d Cir. 2005). Material facts are those facts which “might aff ect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242,6

248 (1986). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where the m oving party seeks summary judgment on an issue on which it will bear the burden of proof at trial, it “must show that it has produced enough evidence to support the findings of fact necessary to win.” El v. Se. Pa. Transp. Auth. , 479 F.3d 232, 237 ( 3d Cir . 2007)

. III. To make out a prima facie case of disability discrimination or failure to accommodate under the ADA, 3 a plaintiff must establish, inter alia , that he is a “qualified individual,” defined

as an individual “who, with or without reasonable acco mmodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); Turner v. Hershey Chocolate USA , 440 F.3d 604, 611 (3d Cir. 2006). This inquiry has two parts: “(1) whether the indiv idual has the requisite skill, experience, education and other job

- related requirements of the position sought, and (2) whether the individual, with or without reasonable accommodation, can perform the essential functions of that position.” Id. Focusing on the latter question, 4 the District Court concluded Supinski was not a qualified individ ual with respect to either the c ar washer/u nloader or the feeder d river position because heavy lifting in excess of Supinski‟s restrictions was an essential function of both

3 “[T] he same legal s tandard that applies to the ADA applies equally to disability discrimination claims under the PHRA. ” Colwell v. Rite Aid Corp. , 602 F.3d 495, 499 n.3 (3d Cir. 2010). 4 UPS has never suggested Supinski lacked the “requisite skill, experience, education and other job

- related r equirements” of the car washer/u nloader position, but contends he is not qualified for the f e eder d river position because he does not have a commercial driver‟s license.7

positions and UPS was not required to modify this essential function in order to accommodate Supinski. Supinski challenges both conclusions. In general terms, the “essential functions” of a position are the “fundamental job duties , ” as opposed to the “marginal functions.” 29 C.F.R. § 1630.2(n)(1). A job function may be considered essential for a number of reasons, including because (1) “the reason the position exists is to perform that function,” (2) only a limited number of employees are availa ble “among whom the performance of that job function can be distributed,” or (3) the function is “highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.” Id. § 1630 .2 (n)(2) . Under the ADA‟s implemen ting regulations, evidence a particular job function is essential may include, but is not limited to: (i) T he employer‟s judgment as to which functions are essential; (ii) W ritten job descriptions prepared before advertising or interviewi ng applicants for the job; (iii) T he amount of time spent on the job performing the function; (iv) T he consequences of not requiring the incumbent to perform the function; (v) T he terms of a collective bargaining agreement; (vi) T he work experience of past incumbents in the j ob; and/or (vii) T he current work experience of incumbents in similar jobs. Id. § 1630.2(n)(3). As we have repeatedly recognized, “whether a particular function is essential „is a factual determination that must be made on a case by case basis [based upon] all relevant evidence.‟”
Deane , 142 F.3d at 148 (quoting 29 C.F.R. pt. 1630, app. § 1630 .2(n)) (alteration in original); accord Turner , 440 F.3d at 612; Skerski v. Time Warner Cable Co. , 257 F.3d 273, 279 (3d Cir. 2001). Although the burden is on the plaint iff to show, as part of his prima facie case, that he is a qualified individual, the employer “has the burden of showing a particular job function is an8

essential function of the job.” Rehrs v. Iams Co. , 486 F.3d 353, 356 (8th Cir. 2007); Ward v.
Mass Hea lth Research Inst. , Inc. , 209 F.3d 29, 35 (1st Cir. 2000) ; see also 29 C.F.R. pt. 1630 , app. § 1630.2(n) ( while “the inquiry into essential functions is not intended to second guess an employer‟s business judgment with regard to production standards,” the employer “will have to show that it actually imposes such requirements on its employees in fact, and not simply on paper”) . Accordingly, we may uphold the grant of summary judgment in UPS‟s favor only if we conclude reasonable jurors “could not but find” that heavy lifting exceeding Supinski‟s restrictions wa s an essential function of the car washer/unloader and feeder d river positions. Se e Turner , 440 F.3d at 612. The summary judgment record contains little evidence regarding the extent of the lifting

r equirements of either position. The main evidence on the subject is a September 11, 2006, document entitl ed “ UPS Essential Job Functions , ” which purports to list the essential job functions for various positions at UPS. (App. 465

- 529.) Although the docu ment does not include a description for the combined car washer/unloader position for which Supinski applied in July 2006, it include s separate des criptions for the positions of c ar w a sher and loader/u nloader, as well as a description for the feeder d river position . (App. 491, 496, 500.) Both the loader/unloader and the feeder d river descriptions list as essential job functions the ability to “[l]ift, lower, push, pull, leverage and manipulat e equipment and/or packages weighing up to 70 pounds” and to “[a ]ssist in moving packages weighing up to 150 pounds.” (App. 496, 500.) The loader/u nloader description also lists the ability to “[l]ift packages to heights above the shoulder and lower to foot level as appropriate.” (App. 500.) As Supinski notes, howe ver, these job9

descriptions were not prepared until September 2006, after he was denied both position s. T he descriptions are thus of l imited relevance in establishing the essential functions of the positions at the time of his applications

. See 42 U.S.C. § 12111(8) (“[I]f an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” (emphasis added) ).
E ven if the job descripti ons had been prepared before Supinski submitted his bids, they woul d not compel the conclusion that lifting in excess of Supinski‟s requirements was an
essential funct ion of either position. While t he job descr iptions refer to the lifting of packages “wei ghing up to 70 pound s” (App. 496, 500), even after his injury Supinski could lift up to seventy pounds to waist level (App. 79)

. The loader/u nloader job description also refers to the lifting of packages “to heights above the shoulder”; however, the de scr iption does not specify the weight of packages which must be lifted to such heights, instead stating above

- the

- shoulder lifting must be done “as appropriate.” (App. 500.) Moreover, both job descriptions include the
disclaimer that the essential functions of the job “may vary greatly depending on the size and location of the UPS facility,” and “[a]t some locations, employees may not perform all of the essential job functions listed above. ” (App. 496, 500.) The job descriptions thus fail to conclusively e stablish that lifting in exc ess of Supinski‟s restrictions wa s an essential function of either position. UPS also points to “„declarations of both management and union representatives confirm[ing] that since 1997 the Car W asher job has been combined with another p osition involving heavy lifting. ‟ ” ( Appellee‟s Br. 26 (quoting Dist. Ct. Op. of Feb. 11, 2010, at 15).)10

Although these declarations support UPS‟s contention that , since 1997, all car w asher positions at the Taylor facility have been combination positions involving at least one other task requiring lifting, they d o not address the extent of the lifting requirements for such combination position s . Indeed, t h e only declaration to include more than a reference to lifting is the declaration of UPS
Po cono Center Business Mana ger John Romeo, who states all car w asher positions since 1997 have involved “at least one additional task requiring the same lifting requirements as package car drivers, feeder drivers and loaders.” (App. 431.) Rom eo , however, a lso does not elaborate on the extent of the lifting requirements for these positions . Moreover, to the extent Romeo‟s
d eclaration suggests the feeder d river an d loader/u nloader positions had the same lifting requirement s as the p ackage car driver position , which Supinski admitted he could no longer perform , Romeo‟s declaration is contradicted by the deposition testimony of former feeder d river Nicholas C oyer, who stated, in connection with Supinski‟s worker‟s compensation proceedings, “[w]ithout a doubt, [ he] could have perfo rmed [his] duties [as a feeder d river]” if he had the

same lifting restrictions as Supinski . (App. 119.) 5 Finally, UPS argues heavy lifting is an essential function of nearly all of its bargaining unit positions because it is “the vas t bulk of labor needed by the company to fulfill its core mission

—

moving packages.” (Appellee‟s Br. 27.) But even if , as the District Court suggested, lifting is inherent in the work performed by UPS employees because UPS is a package delivery

5 As the District Court noted, Coyer stated he personally lifted forty to fifty pounds a bove his shoulders as a feeder d river and probably lifted seventy

- five pounds by himself; however, when asked whether he nevertheless could have performed his job duties with Supinski‟s lifting restrictions, he stated: “[w]ithout a doubt, I could have performed my duties. Without a doubt.” (App. 115

- 16, 118

- 19.)11

company, t here is no evidence reg arding the extent to which the car washer/unloader and feeder d river positions require d lifting in excess of Supinski‟s restrictions, the a mount of time spent on the job doing such heavy lifting , the consequences to UPS of not requir ing Supinski to perform such lifting, or the experience of any incumbents

— past or present

— in the combine d car washer/u nloader position. Given the lack of evidence regarding the nature and extent of t he lifting requirements of the car washer/unloader and f eeder d river positions, we cannot conclude a

reas onable jury would be compelled to find lifting in excess of Supinski‟s restrictions was an essential function of either position. Accordingly, we hold the District Court erred in concluding, as a matter of law, that Supinski was not a qualified individual because the lifting requirements of the se positions exceeded his physical capacity. 6 Supinski also argues the District Court erred in failing to consider whether UPS could have accommodated his perceived d isability by arranging for other employees to assist him with heavy lifting. A “reasonable accommodation” under the ADA may include measures such as job restructuring or reassignment to a vacant position. 42 U.S.C. § 12111(9)(B) . A n employer may be requ ired to “restructure a job by reallocating or redistributing nonessential, marginal job functions” ; however, the employer “is not required to reallocate essential functions.” 29 C.F.R. pt. 1630, app. 1630.2(o); see also Skerski , 257 F.3d at 285 n.4 (“[E]m ployers are not required to accommodate an employee by removing an essential function or restructuring a job so as to avoid

6 Although the District Court noted in its summary judgment decision that UPS also argued Supinski wa s not qualified for the feeder driver p osition because he did not have a commercial driver‟s license, the District Court did not decide this issue. We decline to decide the issue on appeal in the first instance.12

it, but, rather, they are to provide an accommodation so as to enable the employee to perform such a function.”). Having found that heavy lifting exceeding Supinski‟s restrictions was an essent ial function of the car washer/unloader and f e eder d river positions

— the only positions other than package car driver for which UPS had vacancies following Supinski‟s injury and return to work

— th e District Court concluded UPS was not required to alter this requirement in order to accommodate Supinski. Because we conclude there is a genuine factual issue as to whether such heavy lifting was an essential job function of these positions , we must als o hold the District Court erred in concluding, as a matter of law, that UPS had “no duty to ch ange the requirements for [the car washer/u n loader and feeder d river] positions to accommodate Mr. Supinski‟s physical capacity.” (App. 21.) UPS argues Supinski ‟s proposed accommodation

— assistance from fellow employees to lift packages exceeding his restrictions

— would “ require UPS to employ a second person the majority of the time to assist Supinski” and is therefore not reasonable as a matter of law. (Appellee‟ s Br. 28.) However, UPS cites no evidence to support this contention. This issue, too, should therefore be decided by a jury based on a fully developed record. As to Supinski‟s retaliation claim, construing the claim as alleging UPS retaliated against
S upinski for requesting an accommodation and filing a charge of discrimination by denying him the requested accommodation, the District Court g ranted summary judgment for UPS in both Supinski I and the consolidated action. (App. 21, 41

- 42.) On appeal, Sup inski presses a different variation of his claim, arguing UPS retaliated against him for requesting an accommodation by13

telling him UPS “does not take cripples back,” telling him not to come to the plant looking for work as often, and offering him $1 to re sign. (Appellant‟s Br. 33

- 34.) UPS concedes Supinski raised this argument in his opposition to the defendants‟ motion for summary judgment in Supinski I , but argues these allegedly retaliatory actions do not amount to an adverse action as a matter of law

. 7 (Appellee‟s Br. 34; Appellee‟s Sur

- reply Br. 8 n.1.) We decline to address this issue on appeal in the first instance and instead remand so that the District Court may consider whether , considered in context, these statements would dissuade a reasonab le worker from engaging in the protected conduct of requesting an accommodation. See Gaujacq v. EDF, Inc. , 601 F.3d 565, 578 (D.C. Cir. 2010) (“An employer‟s words . . . must be considered in context to determine whether they would „dissuade a reasonable worker‟ from filing a claim and thus result

7 UPS also argues we lack jurisdiction to consider this theory, which was raised only in Supinski I , because the D istrict Court‟s summary judgment order in Supinski I directed the Clerk of Court to enter judgment in favor of UPS on Supinski‟s retaliation claim, and Supinski did not file a notice of appeal within thirty days after this entry of judgment. “For an actio n involving claims against multiple parties, a judgment that resolves less than all of the claims against all of the parties is not a „final‟ judgment unless the court „expressly determines that there is no just reason for delay.‟” Sulima v. Tobyhanna Arm y Depot , 602 F.3d 177, 183 (3d Cir. 2010) (quoting Fed. R. Civ. P. 54(b)). Although UPS asserts the District Court entered “final judgment” as to the retaliation claim, the Court‟s summary judgment order did not mention Rule 54(b) or make any finding that there was no just reason for delay. Nor does UPS point to anything in the record suggesting the District Court intended to enter judgment under Rule 54(b). In these circumstances, the District Court‟s judgment did not become final until February 11, 201 0, when judgment was entered in favor of UPS on all of Supinski‟s remaining claims. See Berckeley Inv. Grp., Ltd. v. Colkitt , 259 F.3d 135, 143

- 45 (3d Cir. 2001) (finding an appeal from an order granting “final judgment” as to claims against only one defe ndant was premature where the district court did not cite Rule 54(b) or discuss its application)

.14

in actual retaliation.” (quoting Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 57 (2006)). 8
IV. For the foregoing reasons, we reverse the grant of summary judgment for UPS on Supinski‟s disability di scrimination , failure to accommodate , and retaliation claims, and remand for further proceedings consistent with this opinion.

8 We find the two remaining issues raised by Supinski to be without meri t . Supinski argues the District Court erred in failing to consider his ability to pe rform the essential fun ctions of positions other than car washer/unloader and f ee der d river. T he burden , however, was on Supinski to show other vacant, funded positions were available, Shapiro v. Twp. of Lakewood , 292 F.3d 356, 360 (3d Cir. 2002), and the only evidence he produced regarding alternative positions was a chart the District Court declined to consider because it was “neither identified nor authenticated” (App. 19). We perceive no abuse of discretion in this ruling. See Gen. Elec. Co. v. Joine r , 522 U.S. 136, 141

- 43 (“ [A] buse of discretion is the proper standard of review of a district court‟s evidentiary rulings

. ”). We also reject Supinski‟s estoppel argument, as UPS‟s position in this litigation that Supinski cannot perform the essential fun ctions of the positions of car washer/unloader and feeder d river is not inconsistent with its position in Supinski‟s worker‟s compensation proceedings that he was generally able to work

.