NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 10-1730
____________
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. Nos. 3:06-cv-0793 and 3:08-cv-0371)
District Judge: Honorable Thomas I. Vanaskie
____________
Argued January 5, 2011
Before: AMBRO and FISHER, Circuit Judges, and SÁNCHEZ,* 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 Juan R. Sánchez, District Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
____________
OPINION OF THE COURT
____________
SÁNCHEZ, District Judge.
Edward Supinski appeals from two orders of the District Court, which together granted
summary judgment in favor of Supinski‟s former employer, United Parcel Service, 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 (PHRA), 43
Pa. Stat. Ann. § 951 et seq. After a shoulder injury left him unable 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 orders granting summary judgment in favor of UPS and remand for further proceedings
consistent with this opinion.
I.
Supinski began working for UPS in 1979 as a car washer and eventually moved into the
position of package car driver at the UPS facility 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 October 2001, Supinski‟s orthopedic surgeon
approved him to return to work with the following permanent lifting restrictions: “[s]eventy
pound lifting limit to waist level, twenty-five pound lifting limit to shoulder level, [and] twenty
2
pound lifting 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
charge of discrimination 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 “jobs 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 position (App. 288), and in July 2006, he
applied for a combined position as a car washer/unloader (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 disability 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 against two UPS employees, and the 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.
3
same federal court, asserting ADA and PHRA claims based on UPS‟s failure to hire him for the
car washer/unloader 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 claim in Supinski I, but permitted Supinski‟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 that 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 having 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 the motion in its entirety. The District Court concluded Supinski could
not prevail on his disability discrimination and failure to accommodate claims as a matter of law
because he failed to show he could meet the lifting requirements of the car washer/unloader and
feeder driver positions, and because UPS 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 . . . to 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 be 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.)
4
conduct and UPS‟s refusal to hire him for vacant positions where the record showed Supinski
could not perform an essential function of those positions. Finally, the District Court held
Supinski had failed to establish a claim based on a pattern or practice of discrimination.
Supinski appeals, 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
driver positions; (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 positions other than car
washer/unloader and feeder driver; (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 his retaliation claim.
II.
The District Court had jurisdiction under 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. Deane 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 that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Hugh v. Butler Cnty. Family
YMCA, 418 F.3d 265, 267 (3d Cir. 2005). Material facts are those facts which “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
5
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 moving 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 accommodation, 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 individual 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 individual with respect to either the car washer/unloader or the feeder driver position
because heavy lifting in excess of Supinski‟s restrictions was an essential function of both
3
“[T]he same legal standard 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 requirements” of the car washer/unloader position, but contends he is not qualified for
the feeder driver position because he does not have a commercial driver‟s license.
6
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 available “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 implementing
regulations, evidence a particular job function is essential may include, but is not limited to:
(i) The employer‟s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing
applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The 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 plaintiff 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 an
7
essential function of the job.” Rehrs v. Iams Co., 486 F.3d 353, 356 (8th Cir. 2007); Ward v.
Mass Health 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 was an essential function of the car washer/unloader and feeder driver positions. See
Turner, 440 F.3d at 612.
The summary judgment record contains little evidence regarding the extent of the lifting
requirements of either position. The main evidence on the subject is a September 11, 2006,
document entitled “UPS Essential Job Functions,” which purports to list the essential job
functions for various positions at UPS. (App. 465-529.) Although the document does not
include a description for the combined car washer/unloader position for which Supinski applied
in July 2006, it includes separate descriptions for the positions of car washer and loader/unloader,
as well as a description for the feeder driver position. (App. 491, 496, 500.) Both the
loader/unloader and the feeder driver descriptions list as essential job functions the ability to
“[l]ift, lower, push, pull, leverage and manipulate 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/unloader 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, however, these job
8
descriptions were not prepared until September 2006, after he was denied both positions. The
descriptions are thus of limited 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)).
Even if the job descriptions had been prepared before Supinski submitted his bids, they
would not compel the conclusion that lifting in excess of Supinski‟s requirements was an
essential function of either position. While the job descriptions refer to the lifting of packages
“weighing up to 70 pounds” (App. 496, 500), even after his injury Supinski could lift up to
seventy pounds to waist level (App. 79). The loader/unloader job description also refers to the
lifting of packages “to heights above the shoulder”; however, the description 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 establish that lifting in excess of Supinski‟s restrictions was an essential function of
either position.
UPS also points to “„declarations of both management and union representatives
confirm[ing] that since 1997 the Car Washer job has been combined with another position
involving heavy lifting.‟” (Appellee‟s Br. 26 (quoting Dist. Ct. Op. of Feb. 11, 2010, at 15).)
9
Although these declarations support UPS‟s contention that, since 1997, all car washer positions
at the Taylor facility have been combination positions involving at least one other task requiring
lifting, they do not address the extent of the lifting requirements for such combination positions.
Indeed, the only declaration to include more than a reference to lifting is the declaration of UPS
Pocono Center Business Manager John Romeo, who states all car washer 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.) Romeo, however, also does not elaborate on
the extent of the lifting requirements for these positions. Moreover, to the extent Romeo‟s
declaration suggests the feeder driver and loader/unloader positions had the same lifting
requirements as the package car driver position, which Supinski admitted he could no longer
perform, Romeo‟s declaration is contradicted by the deposition testimony of former feeder driver
Nicholas Coyer, who stated, in connection with Supinski‟s worker‟s compensation proceedings,
“[w]ithout a doubt, [he] could have performed [his] duties [as a feeder driver]” 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 vast 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 above his
shoulders as a feeder driver 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.)
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company, there is no evidence regarding the extent to which the car washer/unloader and feeder
driver positions required lifting in excess of Supinski‟s restrictions, the amount of time spent on
the job doing such heavy lifting, the consequences to UPS of not requiring Supinski to perform
such lifting, or the experience of any incumbents—past or present—in the combined car
washer/unloader position. Given the lack of evidence regarding the nature and extent of the
lifting requirements of the car washer/unloader and feeder driver positions, we cannot conclude a
reasonable 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 these positions exceeded his physical capacity.6
Supinski also argues the District Court erred in failing to consider whether UPS could
have accommodated his perceived disability 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). An employer may
be required 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]mployers 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 was not qualified for the feeder driver position 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.
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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 essential
function of the car washer/unloader and feeder driver positions—the only positions other than
package car driver for which UPS had vacancies following Supinski‟s injury and return to
work—the 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 also hold the District
Court erred in concluding, as a matter of law, that UPS had “no duty to change the requirements
for [the car washer/unloader and feeder driver] 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
Supinski for requesting an accommodation and filing a charge of discrimination by denying him
the requested accommodation, the District Court granted summary judgment for UPS in both
Supinski I and the consolidated action. (App. 21, 41-42.) On appeal, Supinski presses a different
variation of his claim, arguing UPS retaliated against him for requesting an accommodation by
12
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 resign. (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 reasonable 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 District 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 action 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 Army 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, 2010, 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 defendant was premature where the
district court did not cite Rule 54(b) or discuss its application).
13
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 discrimination, 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 merit. Supinski argues the
District Court erred in failing to consider his ability to perform the essential functions of
positions other than car washer/unloader and feeder driver. The 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. Joiner, 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 functions of the positions of
car washer/unloader and feeder driver is not inconsistent with its position in Supinski‟s worker‟s
compensation proceedings that he was generally able to work.
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