Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-21-2004
Parker v. Port Auth Alghny
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-2917
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 02-2917
____________
GILDA GLADYS PARKER,
Appellant
v.
PORT AUTHORITY OF ALLEGHENY COUNTY,
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 00-cv-00671)
District Court Judge: Hon. Donetta W. Ambrose
Submitted Under Third Circuit LAR 34.1(a)
October 23, 2003
Before: ALITO, FUENTES, and BECKER, Circuit Judges
(Opinion Filed: January 21, 2004)
______________________
OPINION OF THE COURT
______________________
PER CURIAM:
This is an appeal from the District Court’s grant of summary judgment in favor of
the Port Authority of Allegheny County (“the Port Authority”) on Gilda Gladys Parker’s
claims that the Port Authority terminated her employment in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. (“the ADA”) and the Pennsylvania
Human Relations Act, 43 Pa. Stat. § 951 et seq. (“the PHRA”).1 We affirm.
I.
Parker was diagnosed with diabetes in 1993. She began working for the Port
Authority as a bus operator trainee on March 15, 1999. After initial training and before
entering a 90-probationary period, Parker received a copy of the Port Authority’s
Performance Code for Probationary Employees. The Performance Code sets out the Port
Authority’s attendance policy and outlines each action considered sufficient cause for a
final written warning, suspension, or immediate discharge. Additionally, the Performance
Code notes that “[w]ithin the first thirty (30) scheduled working days, all
incident/occurrences may be viewed for possible disciplinary action up to and including
discharge.” Parker began her 90-day probationary period on May 16, 1999.
On May 18, 1999, the Port Authority learned that Parker had been involved in an
incident during which she did not follow proper routing, became lost, and then failed to
1
This Court’s analysis regarding Parker’s ADA claim is dispositive of her PHRA
claim. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (“analysis of
an ADA claim applies equally to a PHRA claim”).
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follow the proper procedure of reporting her location to the Traffic Division of the Port
Authority and obtaining re-routing directions. Instead, Parker improperly obtained
directions from the bus passengers.
On May 20, 1999, the Port Authority’s Employee Relations Representative, the
Director of Service Delivery for the Port Authority’s Harmar Division, and an instructor
met with Parker regarding the May 18th incident and issued a Final Written Warning in
accordance with the Performance Code. On June 1, 1999, two complaints were lodged
against Parker. One complaint alleged that Parker’s bus missed a stop. The other
complaint alleged that Parker’s bus was 25 minutes late at a different stop. The next day,
Parker met with Robin Rochez, her Port Authority supervisor, to discuss the complaints.
Rochez retrained Parker on a variety of procedures.
On June 3, 1999, Parker called the Port Authority to report that she would not be at
work. Parker spoke with Teenya McLellan (an instructor) and Tom Collins (a Harmar
Supervisor), neither of whom was her supervisor. Parker stated that she was not feeling
well because of her diabetes. When Rochez learned of this, she agreed that Parker should
not report to work because, among other reasons, Rochez did not believe that it was safe
for Parker to return until she had been cleared by the Port Authority’s medical
department. Parker asked Collins about the possibility of a light-duty position with the
Port Authority. Collins followed up with Donna Lucas, the Employee Relations
Representative. On the same day, Lucas informed Parker that light-duty positions were
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not available for probationary employees because those employees needed to work in the
positions for which they were hired in order to be evaluated.
Also on June 3, the Port Authority informed Parker that she needed to obtain
information from her doctor regarding her medical status in order to return to work. The
Port Authority requested information to evaluate whether Parker’s medical condition
disqualified her from operating a bus. Approximately one week later, Parker faxed a note
from her doctor indicating that she had an appointment on June 15, 1999. Several days
after the fax was received, Parker still had not provided any medical documentation for
her absences. Accordingly, the Port Authority gave her an authorization for the release of
her medical records. After Parker failed to provide any information regarding her status,
supervisors at the Port Authority scheduled a meeting with her to review her performance
since her probationary period commenced. The meeting occurred on June 23, 1999. Due
to Parker’s overall unsatisfactory work performance and excessive, unexcused
absenteeism, the Port Authority terminated her employment.
On October 8, 1999, Parker filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging disability discrimination under
the ADA and the PHRA. After receiving the EEOC’s notice of dismissal and right to sue,
Parker filed this action. The District Court granted summary judgment in favor of the
Port Authority, and the Court denied as moot Parker’s motion to strike as inadmissible
hearsay various assertions in the Port Authority’s Statement of Material Facts.
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II.
We exercise plenary review over a District Court’s grant of summary judgment
and therefore apply the same legal standards applied by the District Court. Courson v.
Bert Bell NFL Retirement Plan, 214 F.3d 136, 142 (3d Cir. 2000). In evaluating the Port
Authority’s motion for summary judgment, we must view the evidence in the light most
favorable to Parker and must decide whether the Port Authority was entitled to judgment
as a matter of law. See F ED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986).
III.
The ADA prohibits “discrimination against a qualified individual with a disability
because of the disability of such individual.” 42 U.S.C. § 12112(a). To establish that she
has a disability, Parker must show that: (i) she has a physical or mental impairment that
substantially limits one or more of her major life activities; (ii) she has a record of such
impairment; or (iii) she was “regarded as” having such an impairment by the Port
Authority. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 359 (3d Cir. 2000) (applying
42 U.S.C. § 12102(2)).
Parker’s claims are based on diabetes, a condition with which she was diagnosed
in 1993. Parker concedes that her diabetes was controlled and that it did not substantially
limit a major life activity. Therefore, her claims are dependent on her ability to prove
that the Port Authority regarded her as having an impairment that substantially limits a
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major life activity.
To be “disabled” under the “regarded as” portion of the ADA's definition of
disability, Parker must demonstrate either that: (i) although she had no impairment at all,
the Port Authority erroneously believed that she had an impairment that substantially
limited major life activities; or (ii) she had a non-limiting impairment that the Port
Authority mistakenly believed limited a major life activity. See Sutton v. United Air
Lines, Inc., 527 U.S. 471, 489 (1999); 2 Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 514
(3d Cir. 2001). In either case, the definition of “substantially limits” remains the same as
it does in other parts of the statute.3 To establish that the Port Authority believed her to
be limited in the life activity of “working,” “working” must encompass “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.” Sutton, 527 U.S. at 491 (citation and internal
quotations omitted); accord Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523
2
The plaintiffs in Sutton had vision impairments which were correctable by
prescriptive glasses. The plaintiffs’ vision problems caused them to be denied positions
as commercial airline pilots. The plaintiffs sued under the ADA’s “regarded as” prong,
and the Supreme Court denied their claim, inter alia, because “if jobs utilizing an
individual’s skill (but not his or her unique talents) are available, one is not precluded
from a substantial class of jobs. Similarly, if a host of different jobs are available, one is
not precluded from a broad range of jobs.” Sutton, 527 U.S. at 492.
3
The EEOC regulations also allow for an individual to establish that s/he is
“regarded as” disabled if s/he “[h]as a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of others toward such
impairment.” 29 C.F.R. § 1630.2(l)(2). “These misperceptions often ‘resul[t] from
stereotypic assumptions not truly indicative of . . . individual ability.’” See Sutton, 527
U.S. at 490 (citing 42 U.S.C. § 12101(7)).
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(1999). Thus, “to be regarded as substantially limited in the major life activity of
working, one must be regarded as precluded from more than a particular job.” Murphy,
527 U.S. at 523; accord Sutton, 527 U.S. at 492.
In this case, the record, even when viewed in the light most favorable to Parker, is
insufficient to show that the Port Authority regarded her “as precluded from more than a
particular job.” Murphy, 527 U.S. at 523. Parker relies heavily on Donna Lucas’s alleged
statement that Parker “couldn’t handle the stress that goes along with the job.” Parker
suggests that Lucas’s statement shows that Lucas regarded her as unable to perform “a
variety of jobs [that] involve stress, driving and the public.” Appellant’s Br. at 19. We
reject this argument. While we give Parker the benefit of any reasonable inferences from
the record, this argument draws inferences that are not reasonable. Lucas’s statement
cannot reasonably be interpreted to mean that she felt that Parker was incapable of
performing all jobs that involved any degree of stress, any type or amount of driving, and
any type or degree of interaction with the public. Rather, all that Lucas’s statement may
reasonably be interpreted to mean is that she did not think that Parker could handle the
particular mix of stress, driving, and public interaction involved in the particular job of
driving a bus. Considering Lucas’s alleged statement and all of the other evidence on
which Parker relies, we do not find sufficient evidence to support a regarded-as claim.4
4
We do not find the EEOC Policy Statement on which Parker relies (Appellant’s
Br. at 24) to be apposite. There, the employee was regarded as incapable performing any
job requiring the ability to work well with the public. Here, Lucas’s statement may not
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Parker argues that her regarded-as claim is supported by the Port Authority’s
insistence that she provide medical information before returning to work. Requiring an
employee to “submit a medical release and be cleared by [her] physician” is not evidence
that an employer regards the employee as disabled. See Somers v. City of Minneapolis,
245 F.3d 782, 788 (8th Cir. 2001). As we noted in Tice, 247 F.3d at 515, “an
appropriately - tailored examination only establishes that the employer harbors doubts
(not certainties) with respect to an employee's ability to perform a particular job”)
(emphasis in original). “Doubts alone do not demonstrate that the employee was held in
any particular regard, and, as we have explained, inability to perform a particular job is
not a disability within the meaning of the Act.” Id. (citation omitted). Therefore, the Port
Authority’s request for a medical excuse for Parker’s absences does not indicate that the
Port Authority regarded her as disabled, in violation of the ADA.
IV.
We have considered all of Parker’s arguments, but we find no basis for reversal.
Accordingly, the District Court’s grant of summary judgment in favor of the Port
Authority is affirmed.
reasonably be read as expressing any similar view about Parker’s abilities. Instead, Lucas
allegedly referred just to the job of driving a bus.
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