UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

PATRICIA ANGELATOS, :

Plaintiff : CIVIL ACTION NO. 4:04-2033

 

v. : (JONES, D.J.)

 (MANNION, M.J.)

US FOODS SERVICE, INC., :

BEVACO DIVISION, 

:

Defendant :

REPORT AND RECOMMENDATION

Pending before the court is the defendant’s motion for summary

judgment. (Doc. No. 25). Based upon the court’s review of the record in this

case, it is recommended that the defendant’s motion be granted.

On September 15, 2004, the plaintiff filed the instant action alleging

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et

seq., the Age Discrimination in Employment Act, (“ADEA”), 29 U.S.C. §621,

et seq., the American’s with Disabilities Act, (“ADA”), 42 U.S.C. §12101, et

seq., and the Pennsylvania Human Relations Act, (“PHRA”), 43 P.S. §955(a).

(Doc. No. 1).

On April 10, 2006, the defendant filed a motion for summary judgment,

(Doc. No. 25), along with a supporting brief, (Doc. No. 26), a statement of

material facts, (Doc. No. 27), and exhibits, (Doc. No. 28). The plaintiff filed an

opposing brief with exhibits on May 9, 2006. (Doc. No. 31). A reply brief was

filed by the defendant on May 30, 2006. (Doc. No. 34).

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 1 of 20
2

Summary judgment is appropriate 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.” Fed.R.Civ.P. 56(c).

The Supreme Court has stated that:

“. . . [T]he plain language of Rule 56(c) mandates the

entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails

to make a showing sufficient to establish the

existence of an element essential to that party’s case,

and on which that party will bear the burden of proof

at trial. In such a situation, there can be ‘no genuine

issue as to any material fact,’ since a complete failure

of proof concerning an essential element of the

nonmoving party’s case necessarily renders all other

facts immaterial. The moving party is ‘entitled to

judgment as a matter of law’ because the nonmoving

party has failed to make a sufficient showing on an

essential element of her case with respect to which

she has the burden of proof.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

The moving party bears the initial responsibility of stating the basis for

its motion and identifying those portions of the record which demonstrate the

absence of a genuine issue of material fact. Id. The moving party can

discharge that burden by “showing . . . that there is an absence of evidence

to support the nonmoving party’s case.” Id. at 325.

Issues of fact are genuine “only if a reasonably jury, considering the

evidence presented, could find for the nonmoving party.” Childers v. Joseph,

842 F.2d 689, 693-94 (3d Cir. 1988)(citations omitted). Material facts are

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 2 of 20
3

those which will effect the outcome of the trial under governing law. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court may not weigh the

evidence or make credibility determinations. Boyle v. County of Allegheny,

139 F.3d 386, 393 (3d Cir. 1998). In determining whether an issue of material

fact exists, the court must consider all evidence and inferences drawn

therefrom in the light most favorable to the nonmoving party. Id. at 393.

If the moving party meets his initial burden, the opposing party must do

more than raise some metaphysical doubt as to material facts, but must show

sufficient evidence to support a jury verdict in its favor. Id.

According to the plaintiff’s complaint, she was hired as a Territory

Manager by the defendant on March 4, 1997. To this extent, she was to

undertake various responsibilities, including the development of a new sales

territory in the Pocono Region of the Commonwealth of Pennsylvania and the

northern area of the State of New Jersey.

The plaintiff alleges that she continued to develop a new territory from

the date of her hire through June 5, 1997. During that time, the plaintiff

alleges that she developed 21 new accounts for the defendant.

On June 5, 1997, the plaintiff was injured when she slipped and fell at

the Mr. Z’s Market in Tobyhanna, Pennsylvania. As a result of her injuries,

the plaintiff alleges that she suffered a period of total disability from June 5,

1997, through September 2, 1997.

According to the complaint, in June 1997, the plaintiff attempted to work

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 3 of 20
As set forth above, the court views the facts in a light most favorable 1

to the non-moving plaintiff.

4

from home. On September 2, 1997, the plaintiff alleges that she was

released for limited duty work, which included a weight restriction of lifting no

more than 25 pounds. Although she reported for work on that date, the

plaintiff alleges that the defendant refused to accommodate her employment

restrictions. According to the plaintiff, she was informed that there was no

work available for her and that her territory had been eliminated. The plaintiff

alleges that her territory was not eliminated, but assigned to another

employee, Mike Lazo, a male, who was approximately 30 years old at the time

of the plaintiff’s discharge.

The plaintiff claims that hertermination constitutes discrimination based

upon her age and gender. In addition, she claims that her discharge

constitutes unlawful discrimination on account of being regarded as having an

impairment.

In an attempt to pierce the allegations of the plaintiff’s complaint and

establish that there are no genuine issues of fact for trial, the defendant has

submitted a statement of material facts to which the plaintiff has responded.

The following facts are not in dispute :

1

On or about March 5, 1997, the plaintiff began a period of employment

with the defendant as an at-will employee. The defendant communicated the

 employment offer on March 3, 1997, to the plaintiff by way of an offer letter,

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 4 of 20
5

which stated that the plaintiff’s sales goal by “June 1997 is to be at $10,000

per week at 10% gross profit; by September 1997 $17,500 per week” and

went on through March 1998 to detail the plaintiff’s sales goals. The plaintiff

was employed from March 5, 1997, through September 2, 1997, as a Territory

Manager at the rate of $400 per week.

The plaintiff’s duties as a Territory Manager included:

Compiles lists of prospective customers for use as

sales leads.

Travels throughout assigned territory to call on

regular and prospective customers to solicit orders

and develop new accounts.

Displays or demonstrates product, using samples or

catalog, and emphasizes salable features.

Quotes prices and credit terms and prepares sales

contracts for orders obtained.

Estimates date of delivery to customer, based on

knowledge delivery schedules.

Prepares reports of business transactions and keep

records of accounts.

The plaintiff has testified that additional job duties included delivery of

items to customers on an as needed basis, and lifting and carrying items

weighing up to 50 pounds.

On June 5, 1997, the plaintiff was injured when she slipped at Mr. Z’s

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 5 of 20
The defendant indicates that the plaintiff was acting in her personal

2

capacity while at Mr. Z’s, while the plaintiff states that she was at the store for

reasons related to her employment. The court notes that a Workers’

Compensation Judge found that the plaintiff’s injury occurred in the course

and scope of her employment and the plaintiff received workers’

compensation benefits for a period of time.

Dr. Scinico was also retained by the workers’ compensation insurance 3

carrier for the defendant.

6

Market . On June 19, 1997, the plaintiff received a Notice of Compensation

2

Payable indicating that she was entitled to workers’ compensation benefits

because of her injury. During the time that the plaintiff was on workers’

compensation leave, she was permitted to work from home, with another

employee, Andi Silfin, assigned to assist her with managing her customer

accounts by phone.

On June 19, 1997, Dr. Ricardo Nieves, who was retained by the

defendant’s workers’ compensation insurance company, opined that the

plaintiff’s injuries from the June 5, 1997, incident had resolved.

On July 7, 1997, May Robinson, R.N., a case manager for CRA

Managed Care, Inc., the workers’ compensation insurance carrier for the

defendant, prepared a report summarizing the plaintiff’s records, which reads,

in part:

TREATING PHYSICIAN CONTACT:

• Arranged evaluation of client with Dr. Scinico3

at Northeastern Medical Center on 07-02-97.

• Physician reports diagnoses of thoracic/lumbar

sprain with left leg symptoms.

• Prognosis is reported as good for recovery.

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 6 of 20
The plaintiff denies this statement in part, but does not indicate to what 4

extent she denies the statement. The plaintiff’s letter to Mr. Renfer is included

in the defendant’s exhibits.

7

• Treatment plan consists of Ultram 3-4 times per

day, Naprosyn 2 times per day, Chloroxozene

at bedtime, physical therapy for 4 weeks and

EMG of lower extremities.

• Vocational potential is modified duty at present

with anticipated release to full duty in 3-4

weeks.

* * * 

RECOMMENDATIONS/GOALS:

• Prognosis good for full recovery in

approximately 4 weeks.

• Physical therapy projected for 4 weeks by

physician.

• Return to full duty projected for August 11,

1997.

On July 14, 1997, the plaintiff wrote a letter to Bill Renfer, her

supervisor, expressing her appreciation for her continued pay despite “only

doing about 1/3 of what [she] was doing prior to [her] injury. . .” She further

indicated that Ms. Silfin had been a “great help” and that she had “actually

been doing most of the work . . .”4

Dr. Mark Scinico issued a notice and Physician’s Affidavit of Recovery

to the defendant that the plaintiff has fully recovered and could return to work

without limitation on August 27, 1997. On the same date, Dr. Scinico

provided a Physician Capabilities Check List, which indicated that the plaintiff

was fully recovered and could return to work without restrictions. 

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 7 of 20
8

In her deposition testimony, the plaintiff alleges that the following

comments were made by Mr. Renfer, her supervisor, which were sexually

harassing:

Q. And is that what you mean by sexist

comments?

A. No, no, that was an action that, to me, I was not

part of it. I got penalized. I actually got in

trouble for not being present. They said I was

supposed to be present. Well, how was I

supposed to be present if you didn’t give me a

ride there. I couldn’t drive there. I did ask for it.

I’m talking about when they would say to me,

“Great job, Pat,” and he was good for that, Mr.

Renfer, “Great job, Pat, you keep up the good

work because one of these days you’ll be up

here with us big boys.” To me, that’s a sexist

remark. I don’t want to be up there with the big

boys.

Q. Mr. Renfer said that to you?

A. Yes.

Q. Do you recall when he made that comment?

A. It was many times, and it should be

documented; it was many times. Yes, I did

mention that to Lisa, and she laughed. They

thought it was funny. “Oh, You don’t know, Bill,

that’s just how he talks.”

Q. Let’s take a step back. On how many

occasions did Mr. Renfer make that comment to

you?

A. Maybe two times in a really meaningful way.

Q. So he on two occasions said . . .

A. One time, he wrote it; I think he wrote it.

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 8 of 20
9

Q. Do you know when he wrote it?

A. No. Like I said, it should be there.

Q. So he made the comments verbally on two

occasions and you are stating that he wrote it

on one other occasion.

A. Um-hum.

Q. Other than those three occasions, did Mr.

Renfer make any comments like that?

A. Well, he would say to me, “You’re in a man’s

field, a man’s position,” you know, things like

that, and I’d say, “No, it’s not. Who told you it’s

a man’s job?”

The plaintiff further testified as follows:

A. You keep saying two (2) statements, and I am

saying there were a lot of statements but I don’t

remember at this time what the statements are.

Those two (2) I remember very clearly.

* * * 

A. Okay, I remember another remark. There was

a remark made because of the guys that are on

the docks. I had to take the food off the thing.

He (Renfer) said, “Wow, look at this. Look at

the muscles. Now you are getting manly

muscles.”

The plaintiff testified that some of the remarks were made to her in the

presence of Ms. Silfin.

On August 27, 1997, Allison Davis, the Director of Human Resources

for the defendant, sent the plaintiff a letter stating that USFS had received the

Physician’s Affidavit of Recovery indicating that she could return to work

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 9 of 20
The plaintiff testified that she anticipated that the turnover would be on

5

a temporary basis.

10

without limitation and that USFS anticipated her return to work on September

2, 1997.

As of June 5, 1997, the date of the plaintiff’s injury, the plaintiff had

opened 21 new accounts and had a weekly sales average of $3,093.20.

Testimony indicates that the Pocono Region had periods of seasonality at the

end of summer before ski season and in the spring. From approximately June

5, 1997, through July 18, 1997, the plaintiff’s accounts were handled by the

plaintiff from home with the assistance of Andi Silfin by telephone. On or

about July 14, 1997, the plaintiff suggested that her accounts be transferred

to someone who could service the customers in-person . Specifically, by 5

correspondence dated July 14, 1997, the plaintiff wrote a letter to her

supervisor, Mr. Renfer, which reads in relevant part:

I went over my weekly reports, I see my sales have

drop (sic) so much since I gotten hurt, I just hope we

don’t start losing the accounts al-together for Hickory

Valley. They want me or another salesperson to show

up in person at 4:00 a.m. every Monday morning for

the order. They say that if we can’t they will not deal

with us any longer. So if you want to turn this account

and Mt. Bethel Diner, Billy’s Pocono Diner and any

other account of mine to another salesperson, I will

understand. I’d rather we don’t lose the accounts.

By July 18, 1997, the plaintiff’s average sales were $1,770.28, and she

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 10 of 20
Although the plaintiff denies this statement, in her correspondence 6

dated July 14, 1997, she writes as follows: “I’m writing you this letter to let you

know that I appreciate so much that you continue to pay me my full salary.

Even when I’m only doing about 1/3 of what I was doing prior to my injury.”

She further admitted that, prior to her injury, she had opened twenty-one

accounts and had a weekly sales average of $3,093.20.

Although the plaintiff denies this statement, she indicates “. . . that the

7

acquisition was delayed until at least December 23, 1997.”

Although the defendant uses the term “lay off” intermittently to describe

8

the plaintiff’s separation from the company, it is clear from the record that the

plaintiff was terminated.

11

had six active customers .

6

In late July 1997, the plaintiff’s remaining accounts were transferred to

Mike Lazo.

In late 1997, JP Food Service acquired USFS . The defendant’s

7

materials provide that, although the acquisition by JP Food Service did not

directly result in changes and/or reductions to the sales staff, the corporate

change did impact USFS’s decision-making process in that “another sister

company within 60 miles” would be present and it was anticipated that there

would be “several overlapping areas of coverage.”

When questioned about the decision to terminate the plaintiff, USFS 8

Human Resources Director Allison Davis testified as follows:

Q. Do you remember the reason that was given to

her why she wasn’t going to be allowed to come

back to work?

A. I don’t remember Craig’s exact words.

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 11 of 20
12

Q. Do you remember the substance of what was

said?

A. That we were in the process of a merger with

J.P. Food Service. I recall there were three

territory managers in the Poconos from J.P.

Three from ours. Declining sales in Pat’s

territory. And this decision was made to lay Pat

off due to a lack of work.

Ms. Davis further testified as follows:

Q. Okay. Do you know, was Ms. Angelatos’

territory [e]liminated?

A. I know that there was a lack of accounts in that

territory. That’s a hard question for us because

what I may consider a territory – again, on the

human resource side. Usually a territory

consists fo 35-40 accounts.

Q. Uh-huh (yes).

A. And the territory manager will call on – that’s

what I call a territory. Would I call somebody

just trying to develop a territory with six

account? That’s hard for me to explain unless

you can give me a little more insight into that.

With respect to the plaintiff’s termination, USFS stated in its Position

Statement to the PHRC that:

During this period of time USF was also in the

process of a merger with JP Foodservice. JP

Foodservice currently had 3 Territory Managers in the

Pocono regions, as well as USP had 3 Territory

Managers covering outlying areas close to the

Poconos. It was decided that because of the lack of

business in Complainants previous territory, the

remaining accounts would stay with Mike Lazo.

As a result on September 2, 1997, a business

decision was made to lay off Complainant due to the

lack of business in her territory.

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 12 of 20
Although the plaintiff indicates that the defendant is seeking summary

9

judgment on all claims, except the PHRA claim, the defendant indicates in a

footnote that the plaintiff’s PHRA claim should also be dismissed. However,

because the PHRA claim is derivative of the gender, age, and disability

discrimination claims, the defendant did not reargue the point.

13

Based upon the above facts, the defendant has brought the instant

motion seeking summary judgment with respect to all of the plaintiff’s claims .

9

In analyzing a claim for employment discrimination, the court applies the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Under this framework, the plaintiff bears the burden of

establishing a prima facie case of discrimination. The burden of production

then shifts to the defendant to articulate a legitimate, nondiscriminatory

reason for the adverse employment action. If the defendant meets its burden

of production, the plaintiff must prove, by a preponderance of the evidence,

that the defendant’s proffered reason was a pretext for discrimination. Id. at

802; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08 (1993). 

To establish a prima facie case of gender discrimination, the plaintiff

must show that (1) she is a member of a protected class; (2) she was

qualified for her position; and (3) she suffered an adverse employment action

or was discharged “under conditions that give rise to an inference of unlawful

discrimination.” Geraci v. Moddy-Tottrup, Int’l Inc., 82 F.3d 578, 580 (3d Cir.

1996)(quoting Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 253

(1981)).

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 13 of 20
The parties dispute this point.

10

14

To establish a prima facie case of age discrimination, the plaintiff must

show that (1) she is forty or older; (2) she is qualified for the position in

question; (3) she suffered an adverse employment decision; and (4) she was

replaced by a sufficiently young person or sufficiently younger persons were

treated more favorably so as to create an inference of discrimination.

Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995).

Assuming the plaintiff has established a prima facie case for gender and

age discrimination, the burden shifts to the defendant to proffer a legitimate, 10

nondiscriminatory reason for the adverse employment action. Fuentes v.

Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

The defendant proffers that the plaintiff’s employment was terminated

because she was hired to develop a territory in the Pocono and Northern New

Jersey Regions. The plaintiff’s offer of employment, which the plaintiff agreed

to, provided that her sales goal by “June 1997 [was] to be at $10,000 per

week at 10% gross profit; by September 1997 $17,500 per week” and went

on through March 1998 to detail the plaintiff’s sales goals. By June 5, 1997,

the plaintiff had opened 21 new accounts with an approximate average of

$3,802.20 per week, while her sales goal was at least $10,000 per week. By

July 18, 1997, the plaintiff’s average sales were approximately $1,770.28 per

week with only 6 active accounts. In addition, the defendant proffers that the

impending acquisition by JP Foodservice caused USFS to recognize that it

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 14 of 20
15

would have a surplus of territory managers in the Pocono region. As a result

of the plaintiff’s failure to meet her sales goals and the surplusage of territory

managers due to the merger, the defendant proffers that it made a business

decision to terminate the plaintiff and have her remaining accounts absorbed

into another territory.

The defendant has proffered legitimate, nondiscriminatory reasons for

the plaintiff’s termination. It has, therefore, met its “relatively light burden.”

Fuentes, 32 F.3d at 763. As such, the analysis proceeds to step three. To

survive summary judgment when an employer articulates legitimate,

nondiscriminatory reasons for its action, “. . . the plaintiff must point to some

evidence, direct or circumstantial, from which a factfinder could reasonably

either (1) disbelieve the employer’s articulated legitimate reasons; or (2)

believe that an invidious discriminatory reason was more likely than not a

motivating or determinative cause of the employer’s action.” Id. at 764. This

is a “difficult burden” for the plaintiff to meet. Id. at 765. The plaintiff cannot

rely on speculation as to the employer’s motives, she must bring forth

evidence of such specific “ . . . weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its actions that a reasonable factfinder could rationally find them

‘unworthy of credence,’ and hence infer ‘that the employer did not act for [the

asserted] nondiscriminatory reasons.” Id. (citations omitted).

In this case, despite the plaintiff’s claims that her employment was

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 15 of 20
16

terminated as the result of gender and age discrimination, in her brief in

opposition to the defendant’s motion, the plaintiff indicates that “the real

reason for her termination was the fact that she had suffered a work-related

injury and had an ongoing limitation. (Pl App I – Dep Angelatos, page 63).

Defendant did not want to take Plaintiff back and risk a further workers’

compensation claim.” Thus, by the plaintiff’s own account, the “real reason”

for her termination had nothing to do with either her gender or age. 

Moreover, the plaintiff’s attempt to establish that the defendant’s

proffered reasons were pretextual is unavailing. Specifically, with respect to

her gender discrimination claim, the plaintiff claims that, at the time of her

hire, she provided Mr. Renfer a list of accounts she handled for her former

employer. The plaintiff claims that she was asked to allow a three month

period for the other territory managers, all males, to call upon the accounts.

In addition, the plaintiff points to the conduct of Mr. Renfer in making

various comments, such as that she was trying to become a “big boy” in a

“man’s job,” and that she was “getting manly muscles.” The plaintiff claims

that she reported these incidents to the Human Resource Department and

that no action was taken.

Plaintiff next claims that she was the only female territory manager

working for Mr. Renfer in 1997.

The plaintiff also claims that two individuals who had previously worked

as territory managers for the defendant, Lee Eckert and Thomas Wasilewski,

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 16 of 20
17

testified that they had been given some existing accounts in order to assist

them when they started, whereas she had not.

With respect to her age discrimination claim, the only point made by the

plaintiff is that Mike Lazo, the individual to whom her accounts were given,

was about ten years her junior.

Finally, to the extent that the defendant has argued that the plaintiff’s

failure to achieve her sales goals was a factor in her termination, the plaintiff

argues that there is a seasonality to the region where she was assigned which

contributed to her low sales rates.

Evening assuming the plaintiff’s claims to be true, the plaintiff has still

not met her burden of establishing that the defendant’s stated reason for her

termination is not believable and/or that an “invidious discriminatory reason

was more likely than not the motivating or determinative cause” of USFS’s

action. Here, although the plaintiff argues that there is a seasonality to the

region she was assigned, which accounted for her low sales, this factor was

considered and included in the employment agreement, which the plaintiff

reviewed and accepted. To this extent, the agreement states: “US

FOODSERVICE/Bevaco understands the seasonality of your territory and will

review your sales goals accordingly to trending sales numbers.” With this, the

plaintiff accepted the sales goals provided in the agreement. The plaintiff did

not, however, come near to meeting those goals during the prescribed

periods. Moreover, the plaintiff has presented no evidence to establish that

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 17 of 20
18

the merger with JP Foodservice did not effect overlapping territories and

increase the number of territory managers in the Pocono Region. Therefore,

the defendant’s motion for summary judgment should be granted with respect

to the plaintiff’s gender and age discrimination claims.

With respect to the plaintiff’s ADA claim, the defendant argues that the

plaintiff has failed to establish a prima facie case of disability discrimination.

(Doc. No. 26, pp. 13-15).

In order to make out a prima facie case under the ADA, the plaintiff

must establish: (1) that she is a “disabled” person within the meaning of the

ADA; (2) that she is otherwise qualified to perform the essential functions of

the job, with or without reasonable accommodations by the employer; and (3)

that she has suffered an otherwise adverse employment decision as a result

of discrimination. Gaul v. Lucent Technologies, Inc. , 134 F.3d 576, 580 (3d

Cir. 1998) (citing Shiring v. Runyon 90 F. 3d 827, 831 (3d Cir. 1996)). See

also Schriner v. Sysco Food Service of Central Pa., 2005 WL 1498497

(M.D.Pa.).

The ADA defines “disability” as: (1) a physical or mental impairment that

substantially limits one or more of the major life activities of such individual;

(2) a record of such impairment; or (3) being regarded as having such an

impairment. 42 U.S.C. §12102(2).

In this case, the plaintiff alleges that she was discriminated against “on

account of being regarded as having an impairment.” To this extent, the

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 18 of 20
The plaintiff refers to the report of Dr. Chhabria, her treating physician, 11

who opined that she could return to work with limitations. This report was not

completed until after her termination.

19

plaintiff must establish that the defendant mistakenly believed that she had a

condition which resulted in her being (1) unable to perform a major life activity

that the average person in the general population can perform; or (2)

“significantly restricted in the ability to perform either a class of jobs or a broad

range of jobs in various classes as compared to the average person having

comparable training, skills and abilities.” 29 C.F.R. §1630.2(j)(3)(i).

The plaintiff has not established that the defendant mistakenly believed

that she had an impairment which significantly restricted her ability to perform

her job, let alone an entire class of jobs or a broad range of jobs in various

classes. To this extent, as set forth above, the defendant had before it the

opinion of Dr. Nieves, who opined on June 19, 1997, that the plaintiff’s injuries

from the June 5, 1997, incident had resolved. Moreover, the defendant

received Dr. Scinico’s notice and Physician’s Affidavit of Recovery which

reflected that the plaintiff fully recovered and could return to work without

limitation on August 27, 1997. On the same date, Dr. Scinico provided a

Physician Capabilities Check List to the defendant, which indicated that the

plaintiff was fully recovered and could return to work without restrictions.

Thus, the only information before the defendant prior to the plaintiff’s

termination was that she could return to work without restriction. Therefore,

11

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 19 of 20
20

the defendant’s motion for summary judgment should also be granted with

respect to the plaintiff’s ADA claim.

On the basis of the foregoing, IT IS RECOMMENDED THAT: the

defendant’s motion for summary judgment, (Doc. No. 25), be GRANTED.

S/ Malachy E. Mannion 

MALACHY E. MANNION

United States Magistrate Judge

Date: December 27, 2006

O:\shared\REPORTS\2004 Reports\04-2033.01.wpd

Case 4:04-cv-02033-JEJ Document 35 Filed 12/27/06 Page 20 of 20