IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CANDY S. ORNER, : CIVIL NO. 4:13-CV-837 

:

Plaintiff :

: (Judge Brann) 

v. :

: (Magistrate Judge Carlson)

NATIONAL BEEF PACKAGING, :

COMPANY, LLC, :

:

:

Defendant :

 REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case 

A. Procedural History 

On April 2, 2013, the plaintiff, Candy S. Orner, filed a complaint against the

defendant National Beef Packaging Company, LLC, stating a claim for

“Discrimination and Failure to Provide Reasonable Accommodation Pursuant to

the American with Disabilities Act.” (Doc. 1.) Thus, the plaintiff’s cause of

action in this lawsuit is a claim under the American with Disabilities Act of 1990,

as amended (“ADA”), 42 U.S.C. § 12101, et seq. The plaintiff avers that she is

disabled for purposes of the ADA, that the defendant was aware of her disability,

Case 4:13-cv-00837-MWB Document 60 Filed 02/26/15 Page 1 of 26
and that the defendant repeatedly denied her requests for reasonable

accommodation to return to work. 

This case now comes before us for consideration of a motion for summary

judgment filed by the defendant. (Doc. 26.) This motion for summary judgment

1

We note that this motion has, itself, inspired collateral disputes between the 1

parties. Thus, along with this motion the defendant also filed a Statement of Material

Facts (“SMF”) with exhibits. (Docs. 26-2 & 26-3 to 26-20.) Also, on April 14, 2014,

the defendant filed its support brief with four exhibits under seal. (Docs. 27 to 31.) 

On May 5, 2014, the plaintiff filed her opposition brief to the defendant’s motion for

summary judgment as well as her answer to the defendant’s SMF with exhibits. 

(Docs. 35 & 36-1 to 36-13.) The plaintiff also filed her medical records under seal.

(Docs. 38 & 38-1.) On May 30, 2014, the defendant filed a reply brief with respect to

its motion for summary judgment with an attachment, namely, a May 29, 2014,

declaration of defendant’s engineer expert witness, Jeffrey E. Fernandez, PhD., PE,

CPE, verifying the facts and opinions in his April 14, 2014, expert report. (Docs. 46

& 46-1.) Dr. Fernandez’s April 14, 2014, expert report is found at Doc. 26-4, pp. 10 -

72. After granting the plaintiff leave of court to file a sur-reply brief, the plaintiff

filed her sur-reply brief in opposition to the defendant’s motion for summary

judgment on June 19, 2014. (Doc. 50.) The plaintiff also filed her supplemental

statement of material facts with exhibits. (Docs. 51 & 51-2 to 51-5.) Both parties

also attached unpublished opinions to their respective briefs. On May 30, 2014, the

defendant also filed a motion to strike two (2) exhibits filed by the plaintiff in her

opposition to the defendant’s motion for summary judgment, namely, Doc. 36, Ex. C,

the expert report of Daniel Rappucci on behalf of the plaintiff, and the expert report

of Dr. Jon Glass on behalf of the plaintiff, Doc. 36, Ex. I. (Doc. 44). Further, on May

30, 2014, the defendant filed its brief in support of its motion to strike with two

exhibits, the affidavit of Diane Peifer, Human Resource Manager for the defendant,

and the May 29, 2014, declaration of Dr. Fernandez verifying the facts and opinions

in his April 14, 2014, expert report submitted on behalf of the defendant. (Docs. 45

& 45-1 & 45-2.) On June 12, 2014, the plaintiff filed her opposition brief to the

defendant’s motion to strike with an exhibit, a May 15, 2014 report of Dr. Jon Glass,

neurologist, responding to Fernandez’s supplemental report. (Doc. 49 & 49.) On

June 26, 2014, the defendant filed its reply brief in support of its motion to strike,

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is now ripe for disposition. Based on our discussion below, we agree with the

plaintiff that material issues of fact exist with respect to her claim under the ADA

against the defendant. We find that the numerous exhibitssubmitted by the parties

create these disputed issues of material fact and that these disputes should be

resolved at trial. Thus, we agree with the plaintiff that the defendant’s motion for

summary judgment should be denied. 

B. Factual Background 

We state the contested factual background of this case based upon both the

undisputed evidence, and on the disputed evidence viewed in the light most

favorable to the plaintiff. See Bielich v. Johnson & Johnson, Inc., –F.Supp.2d–,

2014 WL 1117939, *1 (citation omitted); Bender v. Norfolk Southern Corp., 994

F.Supp.2d 593, 603 n. 2 (M.D.Pa. 2014)(citation omitted). We also note that only

facts supported by citation to the record will be considered and that any

unsupported denials by the plaintiff of the defendant’s statement of material facts

(Doc. 53.) On October 8, 2014, Judge Blewitt filed a Report and Recommendation

recommending that the Court exclude Dr. Rappucci’s report only to the extent it

states opinions as to whether the defendant has complied with the law. Judge Blewitt

further recommended that the defendant’s motion to strike the reports of Dr. Glass be

denied. (Doc. 55.) On December 9, 2014, the Court adopted Judge Blewitt’s Report

and Recommendation. (Doc. 58.) 

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sans citations to the record will be deemed admitted under Local Rule 56.1,

M.D.Pa. See Bender v. Norfolk Southern Corp., 994 F.Supp.2d 593, 603 n. 2. 

The plaintiff began working for the defendant on February 28, 2005, as a

Tray Packer at its Hummel’s Wharf location. The plaintiff worked various

positions for the defendant and her last position was a Tray Packer. The plaintiff

worked side-by-side with other Tray Packers on a production line. As a Tray

Packer, the plaintiff was required to continuously stand with her stomach up

against a metal table containing a work area and conveyor belts. The plaintiff had

to grab a Styrofoam tray from above the packing lines, and put meat on the tray

as the meat came down a conveyor belt in front of her. The plaintiff was then

required to put the meat filled tray on a different conveyor belt where it would be

eventually packaged. 

The plaintiff had a history of back problems, including degenerative disc

disease, and received medical treatment, including physical therapy and

prescriptions for Vicodin, Mirapex, Prednisone and Flexeril, for her continuing

back pain during her employment with the defendant. The plaintiff’s lower back

pain radiated down her left leg and caused pain in her leg. The plaintiff’s medical

treatment and diagnostic tests for her back pain and leg pain continued from 2005

through 2011. The plaintiff had epidural steroid injections in July and August

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2010. The plaintiff had back surgery performed by Dr. Rajjoub in the nature of

a lumbar laminectomy with discectomy L5-S1 on December 16, 2011. The

plaintiff obtained the defendant’s approval of her request for time off from work

due to her back surgery. Dr. Rajjoub advised the defendant via a note on

December 20, 2011, that the plaintiff had surgery and would be off of work for 4-6

weeks.

The plaintiff tried to return to work in her Tray Packer position with the

defendant on February 20, 2012, with a note from Dr. Rajjoub releasing her to

work, but she was not allowed to return to work. Pursuant to requests from the

defendant regarding the plaintiff’s functional capacity, the plaintiff tried to return

to work on February 23, 2012, with a note from Dr. Companion indicating thatshe

would need to able to sit occasionally at her discretion while working during the

day to decrease her back discomfort. The defendant refused to allow the plaintiff

to sit during her job as a Tray Packer. Thus, the plaintiff was not allowed to do

her Tray Packer job with the defendant after her surgery since the defendant

medically disqualified her from the position.

The parties’ pleadingsrelating to thissummary judgment motion reveal that

this case is replete with essentially factual controversies. As a threshold matter,

the parties dispute whether the plaintiff‘s back condition constituted a disability

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for purposes of the ADA. The parties further dispute whether the plaintiff‘s

request to be able to sit at times while working her job as a Tray Packer for the

defendant was a reasonable accommodation or whether the Tray Packer job could

not be performed from a seated position since the employee would not be able to

reach and grab empty trays and, reach to place filled trays of meat on the outgoing

conveyor belt. The parties also dispute whether the plaintiff would be able to

perform the essential functions of her job as a Tray Packer for the defendant if she

was permitted to occasionally sit. In this regard, the defendant contends that the

plaintiff’s inability to stand at all times while she was working rendered her

unqualified to perform the essential functions of the Tray Packer job in a safe

manner. The parties do not agree asto whether continuousstanding is an essential

function of the Tray Packer job.

Further, the parties dispute whether the plaintiff has produced evidence

from which a reasonable jury could conclude that she is substantially limited in

major life activities. With respect to thisissue, we agree with the plaintiff thatshe

has produced sufficient evidence to create genuine issues of fact with respect to

whether she was disabled when she was removed from her Tray Packer job by the

defendant. We also agree with the plaintiff that she submitted adequate evidence

to show that while she performed daily activities and chores, before and after her

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surgery, she struggled to complete them and endured pain. The voluminous

medical records the plaintiff submitted shows that she was continuously treated

for her symptoms from 2005 through the commencement of this action, including

low back pain and bilateral leg pain, and that her treatment continued during her

tenure with the defendant. The plaintiff was also restricted as to her need to sit

occasionally during the work day at her discretion and no time limit as to this

restriction was given.

We note that this threshold factual dispute regarding the extent of Orner’s

impairment, in turn, appears to have inspired other fact-bound disagreements

between the parties relating to other aspects of the plaintiff’s ADA claim. As

discussed, the plaintiff argues that the defendant discriminated against her due to

her back disability by not allowing her to return to work after her surgery and that

the defendant refused to grant her reasonable accommodation for her disability.

Because the defendant argues that the plaintiff did not have a disability, it

contends that the plaintiff’s requested accommodation which would allow her to

sit occasionally during the work day at her discretion was unreasonable and would

remove essential functions of the Tray Packer job. The defendant also maintains

that the plaintiff’s requested accommodation would cause a safety hazard to the

plaintiff and her co-workers. Thus, the question of what would have constituted

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a reasonable accommodation of this alleged disability seems on this record to be

inextricably intertwined with the parties’ factual dispute regard the nature, extent,

severity and potentially disabling impact of Orner’s physical impairment.

Finally, both the defendant and the plaintiff contend that the other party

failed to engage in a meaningful interactive process to have the plaintiff return to

work. This disagreement also stems from, an seems closely linked to, the parties

contrasting viewsregarding the nature of Orner’s impairments. Thus, in our view

these cascading, and interlocking factual disputes ultimately define the contours

of the controversy between the parties.

II. Discussion

A. Summary Judgment– Standard of Review 

The defendant has moved for summary judgment. Rule 56 (c) of the

Federal Rules of Civil Procedure, providesthat “[t]he judgment soughtshould be

rendered if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. Summary

judgment is appropriate only when: (1) there are no material facts in dispute; and

(2) one party is entitled to judgment as a matter of law. See Int'l Union, United

Mine Workers of Am. v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir.1990). 

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A district court may properly grant a motion for summary judgment when the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is entitled

to judgment as a matter of law. Fed.R.Civ.P. 56 An issue is genuine “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986). “Material facts” are those which might affect the outcome

of the suit. Id.; Justofin v. Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir.

2004).

Regardless of who bears the burden of persuasion at trial, the party moving

for summary judgment has the burden to show an absence of genuine issues of

material fact. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d

Cir.1996) (citations omitted). To meet this burden when the moving party does

not bear the burden of persuasion at trial, the moving party must show “ ‘that the

evidentiary materials of record, if reduced to admissible evidence, would be

insufficient to carry the nonmovant's burden of proof at trial.’ ” Jalil v. Avdel

Corp., 873 F.2d 701, 706 (3d Cir.1989) (quoting Chippolini v. Spencer Gifts, Inc.,

814 F.2d 893, 896 (3d. Cir.1987)); see Celotex Corp. v. Catrett, 477 U.S. 317,

323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). More simply put, a party moving for

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summary judgment who does not bear the burden of persuasion at trial is not

required to negate the nonmovant's claim, but only point out a lack of evidence

sufficient to support the nonmovant's claim. Country Floors, Inc. v. Partnership

Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir.1991).

Once the moving party meets its burden of showing an absence of genuine

issues of material fact, the nonmoving party must provide some evidence that an

issue of material fact remains. Matushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party,

however, cannot do so by merely offering general denials, vague allegations, or

conclusory statements; rather, the party must point to specific evidence in the

record that creates a genuine issue as to a material fact. Celotex, 477 U.S. at 32;

Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir.1999). 

B. Claims

As stated, this Court has jurisdiction over plaintiff‘s ADA claim against

defendant under 28 U.S.C. §1331. See Williams v. Phila. Hous. Auth. Police 2

We note that “the ADA has not been interpreted to permit individual liability.” 2

See Mathews v. Hermann, 2008 WL 1914781, *12 (E.D. Pa. April 30, 2008)(citing

Emerson v. Thiel College, 296 F. 3d 184, 189 (3d Cir. 2002)(“individuals are not

liable under Titles I and II of the ADA.”). 

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Dep’t, 380 F.3d 751, 761 (3d Cir. 2004); Reilly v. Lehigh Valley Hosp., 2012 WL

895459, *4 (E.D. Pa. March 15, 2012).

The ADA prohibits discrimination “against a qualified individual on the

basis of disability in regard to job application procedures, the hiring advancement,

or discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Thus, “[t]he

ADA prohibits covered employers from discriminating against disabled

individuals. 42 U.S.C. § 12112(a).” Sulima v. Tobyhanna Army Depot, 602 F.3d

177, 185 (3d Cir. 2010). 

To establish a prima facie discrimination case under the ADA, a plaintiff

must prove:

(1) that he orshe has a disability within the meaning of the ADA; (2)

that he or she is otherwise qualified to perform the essential

functions of the job, with or without reasonable accommodations by

the employer; and (3) that he or she has suffered an otherwise

adverse employment decision as a result of discrimination.

Jamison v. Campbell Chain Cooper Tools, 2009 WL 4429733, at *3 (M.D. Pa.

Nov. 27, 2009) (internal quotation marks omitted) (quoting Williams v. Phila.

Hous. Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004)); Sulima v.

Tobyhanna Army Depot, 602 F.3d at 185(citation omitted); Reilly v. Lehigh

Valley Hosp., 2012 WL 895459, *4 (E.D. Pa. March 15, 2012) (citations omitted);

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Mathews v. Hermann, 2008 WL 1914781, *12(citations omitted). “An individual

is disabled if [s]he had ‘a physical or mental impairment that substantially limits

one or more of the major life activities of such individual.’ 42 U.S.C. §

12102(2).” Sulima v. Tobyhanna Army Depot, 602 F.3d at 185. 

A plaintiff can establish a disability in one of three ways. Jamison, 2009

WL 4429733, at *4. This Court held in Jamison:

Plaintiffs can prove that (1) they have a “physical or mental

impairment that substantially limits one or more of the major life

activities of such individual;” or (2) they have a “record of such

impairment;” or (3) they are “regarded as having such an

impairment.” 29 C.F.R. § 1630.2(g); 42 U.S.C. § 12102(1).

2009 WL 4429733, at *4.

The Jamison Court continued further: 

To have a record of impairment, plaintiff must either have “a history

of” an impairment that substantially limits one or more major life

activities or she must have “been misclassified as having” the same.

29 C.F.R. § 1630.2(k). To prove that she was “regarded as having”

a disability, plaintiff can show any of the following: (1) she has an

“impairment that does not substantially limit major life activities but

is treated by [defendant] as constitution such limitation;” (2) she has

an “impairment that substantially limits major life activities only as

a result of the attitudes of otherstoward such impairment;” or (3) she

has no impairment but she is “treated by [defendant] as having a

substantially limiting impairment.” 29 C.F.R. § 1630.2(l ); see also

Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir. 2002). A

plaintiff can make such a showing by demonstrating either that

“despite having no impairment at all [defendant] erroneously

believed that [plaintiff] had an impairment that substantially limited

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one or more of her major life activities” or that she “had a nonlimiting impairment that [defendant] mistakenly believed

substantially limited on or more of her major life activities.”

Eshelman v. Agere Sys., 554 F.3d 426, 434 (3d Cir. 2009). The

court must focus on “the reactions and perceptions of the persons

interacting or working” with the plaintiff and not on the plaintiff’s

“actual abilities.” Kelly v. Drexel Univ., 94 F.3d 102, 108-09 (3d

Cir. 1996).

2009 WL 4429733, at *4 n.8 (alterations in original).

It isthe plaintiff’s position thatshe is disabled and the defendant was aware

of her disability. When the plaintiff requested a reasonable accommodation to

return to work, her request wasimmediately denied. The plaintifffurther contends

that she made efforts to return to work, but was continually “rebuffed” by the

defendant. Furthermore, the plaintiff states that the defendant failed to engage in

the interactive process as required by the ADA and failed to suggest alternate

accommodations even though similar accommodations had been provided to other

workers. (See Doc. 35.)

The defendant argues that after the plaintiff’s back surgery on December 16,

2011, she was cleared to work on February 21, 2012, by her family physician with

a note stating that “restrictions are to follow.” On February 23, 2012, the same

physician issued a note stating thatshe remained limited in her mobility and it was

necessary for her to use, “a device for her to work a portion of the day from the

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seated position to decrease her discomfort.” The defendant determined that it was

not reasonable to put a chair in the Tray Packer production line. The defendant

then attempted to obtain additional information from the plaintiff on at least three

occasions regarding the specific restrictions and the information necessary for to

evaluate her need for work accommodation and her ability to performthe essential

duties of her job. The defendant further offered her physicians a site visit in order

for them to evaluate her working conditions and to determine what reasonable

accommodations she may need. After February 23, 2012, the plaintiff never

contacted the defendant in order to attempt to return to work and she never

provided the defendant with the requested information. (See Doc. 27.)

The ADA defines a “qualified individual with a disability” as

an individual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that individual holds or desires.

42 U.S.C. § 12111(8). 

In order for a plaintiff to establish a discrimination claim under the ADA,

she must, therefore, show that she was a “qualified individual with a disability”

at the time the adverse employment actions were taken. Bjorklund v. Phila.

Housing Auth., 118 Fed. Appx. 624, 625-626 (3d Cir. 2004). Plaintiff seeks

retrospective relief since she requests compensatory damages, damagesfor failure

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to provide reasonable accommodation, lost wages and raises, benefits, front pay,

back pay, lost future earning capacity, liquidated damages for intentional willful,

malicious, reckless, outrageous conduct, damagesfor emotional distress, punitive

damages, reasonable attorneys fees and costs and pre and post judgment interest

on delay damages. (Doc. 1, pp. 7-8). In order to maintain a claim for

retrospective relief under the ADA for the defendant’s allegedly discriminatory

acts, the plaintiff must establish that she was a “qualified individual with a

disability”during the applicable time. Felix v. N.Y. City Transit Auth., 154

F.Supp. 2d. 640, 652 (S.D. N.Y. 2001). 

C. Factual Disputes Relating to the Plaintiff’s Prima facie

Case and Other Elements of this Case Preclude Summary

Judgment

As mentioned, plaintiff establishes a prima facie case of discrimination

under the ADA by demonstrating: (1) she is a disabled person within the meaning

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

job, with or without reasonable accommodations; and (3) she has suffered an

adverse employment decision as a result of discrimination. Gaul v. Lucent

Technologies, 134 F.3d 576, 580 (3d Cir. 1998)(citing Shiring v. Runyon, 90 F.3d

827, 831 (3d Cir. 1996)).

Under the ADA, as the Thompson Court stated, a person has a disability if:

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The ADA defines the term “qualified person with a disability” as

follows:

The term“qualified individual with a disability” means an individual

with a disability who, with or without reasonable accommodation,

can perform the essential functions of the employment position that

such individual holds or desires. For the purposes of thissubchapter,

consideration shall be given to the employer’s judgment as to what

functions of a job are essential, and if 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.

42 U.S.C. § 12112(8). 42 U.S.C. § 12102(2)setsforth three possible

definitions of disability for purposes of the ADA: “The term

‘disability’ means, with respect to an individual - - (A) a physical or

mental impairment that substantially limits one or more of the major

life activities of such individual; (B) a record ofsuch an impairment;

or (C) being regarded as having such an impairment.”

371 F. Supp. 2d at 671-672 (Citation omitted). 

The defendant argues that the plaintiff cannot maintain a claim for

discrimination under the ADA because she has not established the first two prongs

of a prima facie case of discrimination. According to the defendant, Orner cannot

establish that she is disabled under the ADA or that she was able to perform the

essential functions of her job with or without reasonable accommodation.

The plaintiff alleges that prior to her back surgery,she had lower back pain,

her legs and feet were constantly tingling and she had severe pain in her back. 

(Doc. 35, p. 22.) Further, the plaintiff alleges that prior to her surgery, she was

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having pain all the time and her legs and feet were numb. (Id., pp. 22-23.) In

2011, the plaintiff completed regular activities such as going out to eat, shopping,

gardening, cleaning the house, vacuuming and mopping, but she was unable to do

so without pain. (Id., p. 23.) The plaintiff notified the defendant that she was

having surgery and that she would require time off from work and her

understanding was that the request was approved. (Id.) The plaintiff underwent

a lumbar laminectomy with discectomy L5-S1 surgical procedure on December

16, 2011, performed by Dr. Rajjoub. (Id.) Dr. Rajjoub provided the defendant

with a note dated December 20, 2011, stating thatshe had the surgery and that she

would be off work for 4-6 weeks. (Id.) The plaintiff was restricted from bending

and twisting at the waist, lifting anything over a gallon of milk, sitting in a straight

back chair and driving in vehicles for a long period of time. (Id.) Six weeks after

the surgery, the plaintiff was examined by Dr. Rajjoub and reported low back pain

that was worse when she was in any position for too long especially when riding

a car and trouble sleeping at night. (Id., pp. 23-24.) The plaintiff’s physical

activity was reduced due to pain and she was advised to be careful lifting and

bending. (Id.) 

The plaintiff was able to resume household chores, gardening and other

activities, but had to take her time doing them. The plaintiff testified that her back

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affected her ability to step in and out of the shower, get out of bed, dress herself,

put on sneakers or boots, sit for more than an hour and sleep, stand for more than

two hours, stoop for five minutes, and walk for more than 500 feet at a time before

needing to stop and rest. (Id., p. 24.)

Timothy R. Safford, who lives with the plaintiff testified that her back

condition affected her ability to lift items around the house, get dressed without

help, get in and out of the car without assistance, stand for a long period of time

and tend to her garden. (Id.) Mr. Safford further testified that the plaintiff’s back

pain affected her ability to get out of bed. (Id.) 

The plaintiff attended numerous post-operative follow-up procedures after

her consultation with Dr. Rajjoub in which she was released to work on February

20, 2012. (Id., p. 25.) The plaintiff was concerned with lifting due to being

advised that she would have to be careful in everything she does for life. (Id.) 

The plaintiff further complained of pain in her lower back and neck and

unrelenting headaches. (Id., p. 26.) Dr. Companion indicated that the plaintiff

would function better with intermittent sitting at work. (Id.) Dr. Companion

suggested writing a note indicating that if she needed to sit during the work day,

she should be allowed. (Id.) Dr. Companion indicated that the sitting should be

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at the discretion of the plaintiff. The plaintiff continued on medication prescribed

for her.

The plaintiff had further consultations regarding the headachesthatshe was

suffering from. (Id., p. 27.) In April 2012, the plaintiff consulted with Family

Medical Center, PC regarding a new onset of back pain with radiation down her

right leg posteriorly to her heel. (Id.) The plaintiff sought a new excuse to return

to work because the defendant rejected the prior doctor notes. (Id., p. 28.) The

plaintiff continued to seek consultations and treatment including lumbar epidural

injections for her lower back pain. (Id., pp. 28-29.) The plaintiff’s headaches

remained controlled with Amitriptyline, but the plaintiff complained of persistent

back pain through August 20, 2013. (Id., p. 29.) The Court in Strayer v. New

Enterprise Stone & Lime Co., Inc., 2006 WL 2773479, *4-*5 (W.D. Pa.), stated

as follows:

[P]laintiffs claiming a physical impairment under the ADA must

demonstrate “[a]ny physiological disorder, or condition, cosmetic

disfigurement, or anatomical loss affecting one or more of the

following body systems: neurological,musculoskeletal,specialsense

organs; respiratory (including speech organs), cardiovascular,

reproductive, digestive, genito-urinary, hemic and lymphatic, skin,

and endocrine[.]” 29 C.F.R. § 1630.2(h)(1). The major life activities

that the impairment must substantially limit are defined as “functions

such as caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.” 29 C.F.R. §

1630.2(I). Such an activity is “substantially limited” if the individual

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is “[u]nable to perform a major life activity that the average person

in the general population can perform,” or if she is “[s]ignificantly

restricted as to the condition, manner or duration under which [the]

individual can perform a particular major life activity as compared to

the condition, manner, or duration under which the average person

in the general population can perform that same major life activity.” 

29 C.F.R. § 1630.2(J)(1)(I)-(ii). The following factors should be

considered in determining whether an individual is substantially

limited in a major life activity: (I) the nature and severity of the

impairment; (ii) the duration or expected duration of the impairment;

and (iii) the permanent or long term impact, or the expected

permanent or long term impact of or resulting from the impairment.

29 C.F.R. § 1630.2(j)(2)(I)-(iii).

See also Sulima v. Tobyhanna Army Depot, 602 F.3d at 185. 

The defendant draws different inferences from the evidence regarding the

question of Orner’s disability and contends that it is undisputed that the plaintiff

underwent a lumbar laminectomy to relieve her back pain. (Doc. 27, p. 34.) It is

further undisputed that her physician released her to work on February 20, 2012,

without restrictions. (Id., p. 35.) The defendant argues that the evidence does not

show that the plaintiff’s back pain or back surgery qualifies as a disability and, the

evidence does not show that the plaintiff was substantially limited in a major life

activity and that the defendant refused to let her return to work. (Id.) The

defendant points to the plaintiff’s Complaint which states that her disability

substantially limits her ability to perform major life activities, but contends that

the plaintiff does not provide any evidence of those limitations. (Id.). The

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defendant further point to the fact that the defendant worked as a Tray Packer and

performed the essential functions of her job without any restrictions until

December 16, 2011, when she had back surgery. (Id.) The plaintiff regularly

engaged in activities such as gardening, going out to eat, shopping, caring for

herself and performing household chores. (Id.) The plaintiff received physical

therapy in 2009, approximately two years before her surgery and was not taking

any prescription pain medication for her back. Thus, the defendant states that

there is no evidence that she was substantially limited in any major life activity

prior to her surgery. (Id., p. 36.) After the surgery, the plaintiff had immediate

restrictions on her activities in order to allow her back to heal. (Id.) The

defendant argues that the restrictions are a temporary impairment and not a

disability under the ADA. (Id.) Additionally, the defendant points to the fact that

the plaintiff was restricted from working 4-6 weeks after the surgery. (Id.) 

Thereafter, she was released to work on February 20, 2012, without any

restrictions. (Id.) The defendant contends that she has not shown that she is

“substantially limited” in a “major life activity.” (Id.) 

As the Strayer Court observed, “there is a difference between a disability

and an impairment.” The Strayer Court further stated:

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“Merely having an impairment does not make one disabled for

purposes of the ADA. Claimants also need to demonstrate that the

impairment limits a major life activity.” Toyota Motor Mfg., Ky.,

Inc., 534 U.S. at 195, 122 S.Ct. at 690, 151 L.Ed.2d at 629. “To

qualify as disabled, a claimant must further show that the limitation

on the major life activity is “substantial.” Id. 

2006 WL 2773479, *5.

A “disability” exists only where an impairment “substantially limits” a

major life activity, not where it “might,” “could,” or “would” be substantially

limiting if mitigating measures were not taken. A person whose physical or

mental impairment is corrected by medication or other measures does not have an

impairment that presently “substantially limits” a major life activity. Sutton v.

United Air Lines, Inc., 527 U.S. at 482-83, 119 S. Ct. at 2146-47, 144 L.Ed.2d at

462 (1999).

A further principle guides us when considering this case, which comes

before usin the context of a summary judgment motion. If the summary judgment

record reveals a genuine dispute of material fact relating to the threshold question

of whether the plaintiff is disabled, asthat term is used in the ADA, then it is clear

that a motion for summary judgment should be denied. Williams v. Philadelphia

Hous. Auth. Police Dep't, 380 F.3d 751, 764 (3d Cir. 2004). Viewing this case in

the context of the pending motion for summary judgment, we believe that the

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threshold question of the disabling effect of the plaintiff’s impairments, which is

hotly disputed by the parties, presents a contested issue of material facts which

precludes summary judgment. Here, we agree with the plaintiff that she has

produced sufficient evidence to create genuine issues of fact with respect to

whether she was disabled when she was removed from her Tray Packer job by the

defendant. We also agree with the plaintiff that she submitted adequate evidence

to show that while she performed daily activities and chores, before and after her

surgery, she struggled to complete them and endured pain. The voluminous

medical records the plaintiff submitted shows that she was continuously treated

for her symptoms from 2005 through the commencement of this action, including

low back pain and bilateral leg pain, and that her treatment continued during her

tenure with the defendant. The plaintiff was also restricted as to her need to sit

occasionally during the work day at her discretion and no time limit as to this

restriction was given. 

We also note that the fact that Orner’s physical condition might improve

over time does not necessarily preclude an ADA claim. Indeed, courts have

recognized that a temporary disability may still be actionable under the ADA in

some circumstances and have held that: “[b]ecause an impairment and its impact

may be less than permanent and still ‘significantly restrict’ a person's ability to

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perform a class of jobs, [a lack of clarity on this factual issue] precludes summary

judgment .” Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 765

(3d Cir. 2004).

Thus, we find that there are disputed material facts showing the plaintiff

establishing the first threshold of a prima facie ADA disability discrimination

case, i.e., she was an individual with a disability. A reasonable jury could find

that the defendant regarded the plaintiff as a qualified individual within the

meaning of the ADA. Thus, we will recommend that the Court deny the

defendant’s summary judgment motion with respect to the plaintiff’s claim. 

We further find that this initial threshold factual dispute, in turn, creates a

cascading array of additional factual questions. These additional, and essentially

factual, questions concern both the reasonableness of any proffered

accommodationsto Orner’s alleged impairments, and the nature, extent and degree

of any meaningful interactive process needed to address these concerns. Where

such matters are also cast into dispute,“‘[T]he question of whether a proposed

accommodation is reasonable is a question of fact.’ Buskirk, 307 F.3d at 170; see

also Skerski, 257 F.3d at 286; cf. Walton v. Mental Health Ass'n of Southeastern

Pa., 168 F.3d 661, 671 (3d Cir.1999).” Williams v. Philadelphia Hous. Auth.

Police Dep't, 380 F.3d 751, 771 (3d Cir. 2004).

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In sum, concluding that there exist a series of inextricably intertwined, and

fundamentally factual, disputes in this case relating to the plaintiff’s claimed

disability, the reasonableness of any proposed accommodation to that claimed

disability, and the type of interactive process engaged in by the parties it is

recommended that the defendant’s motion for summary judgment be denied.

Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 771 (3d Cir.

2004)(denying summary judgment on ADA claim where factual disputes existed

regarding the nature of the disability and the reasonableness of proposed

accommodations).

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the

defendant’s Motion for Summary Judgment , (Doc. 26.) be DENIED. 

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, 

recommendations or report addressing a motion or matter described

in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the

disposition of a prisoner case or a habeas corpus petition within

fourteen (14) days after being served with a copy thereof. Such party

shall file with the clerk of court, and serve on the magistrate judge

and all parties,written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to

which objection is made and the basis for such objections. The

briefing requirements set forth in Local Rule 72.2 shall apply. A

judge shall make a de novo determination of those portions of the

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report or specified proposed findings or recommendations to which

objection is made and may accept, reject, or modify, in whole or in

part, the findings or recommendations made by the magistrate judge.

The judge, however, need conduct a new hearing only in his or her

discretion or where required by law, and may consider the record

developed before the magistrate judge, making his or her own

determination on the basis of that record. The judge may also receive

further evidence, recall witnesses or recommit the matter to the

magistrate judge with instructions.

Submitted this 26th day of February, 2015.

S/Martin C. Carlson 

Martin C. Carlson

United States Magistrate Judge

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