UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
George
A. Jeffrey, Plaintiff
v.
John Ashcroft, U.S. Attorney General,
Defendant
3:CV-00-1442
2003
U.S. Dist. Lexis 17015
Thomas
I. Vanaskie
Chief
Judge
MEMORANDUM
George
A. Jeffrey has brought this action under the Rehabilitation Act of 1973, 29
U.S.C. § 701, claiming disability discrimination in connection with the
decision of the Federal Bureau of Prisons (“BOP”) to terminate his probationary
employment as a Chaplain. The BOP discharged Jeffrey after he failed a
“Physical Abilities Test.” Defendant has moved for summary judgment. Because
there are genuine issues of fact material to the questions of whether
plaintiff’s chronic obstructive pulmonary disease renders him “disabled” within
the intendment of the Rehabilitation Act, and whether the PAT appropriately assesses
job-related requirements for the position of prison Chaplain, the motion for
summary judgment will be denied.
I.
BACKGROUND
Plaintiff George A. Jeffrey is a
Roman Catholic priest with a history of serving in prison ministry. From
1991 through 1995, Father Jeffrey worked as a Chaplain for the Pennsylvania
Department of Corrections at the State Correctional Institution at Dallas.
(Jeffrey Dep. at 49-52.) He left that position when the Bishop of the Diocese
of Scranton assigned him to other pastoral duties. (Id. at 50.) The Bishop
subsequently appointed Father Jeffrey to apply for a Chaplain position with the
BOP. (Id. at 49-50.)
On
April 22, 1998, the BOP hired Father Jeffrey as a Chaplain for the McKean
Federal Correctional Institution in Bradford, Pennsylvania (“FCI McKean”) for a
one-year probationary period. (Defendant’s Statement of Material Undisputed
Facts (“DSMUF”), Dkt. Entry 21, P3.) n1 In addition to being subject to a satisfactory security
investigation and completion of a one-year probationary period, Father
Jeffrey’s retention by the BOP was “contingent upon the successful completion
of Introduction to Correctional Techniques at Glynco, Georgia.”
(Record in Support of Defendant’s Motion for Summary Judgment (“R.”), Vol. I,
Dkt. Entry 24, at 10.) One
aspect of the Glynco, Georgia program is the PAT, consisting of five timed
tests intended to measure the physical abilities required for the performance
of correctional work. (DSMUF, P5.)
The PAT
was developed by industrial psychologists based upon a review of physical tasks
required for a variety of job activities expected of correctional workers.
(DSMUF, PP 16-18.) The PAT is intended to measure dynamic strength, gross body
equilibrium and coordination, stamina, and explosive strength. (Id. P18.) The components of the PAT are a
(1) dummy drag, requiring an individual to drag a 75-pound dummy over a
distance of at least 694 feet within three minutes, intended to replicate an
emergency scenario in which a victim is dragged to safety; (2) a ladder climb
during which a person is to climb an eight foot, ten inch ladder and retrieve
an item of contraband, intended to test the ability to search for contraband
concealed in high places using the assistance of a ladder; (3) an obstacle
course, requiring a person to open locked doors, re-lock the doors, and proceed
over, under and around tables, desks, etc., within 58 seconds, intended to
replicate an emergency situation within an institution; (4) a quarter mile run
and handcuffing of an individual within two minutes and 35 seconds, measuring
stamina; and (5) a stair climb, in which the participant wears a twenty pound
weight belt and ascends and descends two flights of stairs three times, with
the participant completing the test within 45 seconds. (Id., P19.)
Satisfactory completion of the PAT is determined on the basis of a
composite score. (Id., P20.) Thus, if a participant does not meet the expected
time for one component of the PAT, he or she may be able to compensate for that
low score by scoring above average on another component. (Id.)
Prior
to being offered employment with the BOP, Father Jeffrey underwent a medical
examination. (R. 71-78.) The examiner’s notations indicate that the 58-year old
Father Jeffrey had a history of hypertension controlled with Inderal, as well
as chronic obstructive pulmonary disease (“COPD”), controlled with Atrovent and
Azmacort. (R. 74.) The examiner recommended that Father Jeffrey be hired. (R.
75.) Prior to going to Glynco, Georgia, Father Jeffrey was medically cleared to
undertake the PAT. (R. 80.) The notes of the Physician’s Assistant that cleared
Father Jeffrey for the PAT indicated that he had a history of emphysema, but
that he ran four miles every day. (Id.) n2
Prior
to going to Glynco, Father Jeffrey discussed the PAT with Chaplain Roberts, the
supervisory Chaplain at FCI McKean. (Jeffrey Dep. at 29-30, 72-73.) Father
Jeffrey told Chaplain Roberts about his emphysema and breathing difficulties. (Id.
at 73.) Chaplain Roberts informed Father Jeffrey that he should be able to
perform the tests, (id. at 73), but Father Jeffrey was not aware that the tests
had time limits. (Id. at 28-29.)
Father
Jeffrey went to Glynco, Georgia in July of 1998. He did not realize that there
were time limits on the various components of the PAT until after the testing
had begun. (Jeffrey Dep. at 29-31, 33-34.) Father Jeffrey was given two
opportunities to take the PAT. He did not complete all components of the PAT on
the first try; on the second attempt, he failed to meet the time limits in four
of the five tests. (DSMUF, PP 45-46.) Father Jeffrey was terminated by the
FCI-McKean Warden due to his failure to pass the PAT. (Id., P 48.)
Father Jeffrey attributes his
inability to successfully complete the PAT to his impaired breathing capacity.
(Id., P 52.) He has a combination of asthma and COPD. (September 5, 2001 Report
of William B. Weiss, M.D., included in the record submitted in support of
Plaintiff’s Counter-Statement of Material Undisputed Facts (“SR.”) at 35-36.) A
comprehensive cardiopulmonary stress test revealed a reduction in exercise
capacity on the basis of a respiratory limitation. (Id.) Dr. Weiss reports that
Father Jeffrey “has been treated optimally for his COPD plus asthma, with a
combination of an inhaled corticosteroid and an inhaled bronchodilator, “ and that “the exercise limitation would
not be amenable to further pharmacologic manipulation.” (Id. at 35-36.)
Father Jeffrey becomes breathless
after running a few steps or carrying as little as ten pounds up a few steps.
(Jeffrey Dep. at 7-10, 19-20.) When he loses his breathing capacity, he must
rest for up to 30 minutes before being able to resume normal activity. (Id. at
11.) While he exercises on a treadmill in accordance with his doctor’s advice,
he starts out at a very slow pace of 2.5 miles per hour, and slowly progresses
to a maximum rate of 4.0 miles per hour. (Id. at 12.) A more rapid rate or more
strenuous activity leaves him breathless. (Id. at 11.)
After
Father Jeffrey was fired, the BOP waived the PAT requirement for another
Chaplain applicant. (R. 194-96.) In addition, BOP Chaplains hired prior to
January 1, 1997 have not been required to complete the PAT, (defendant’s Answers
to Interrogatories, R. 173), and persons retained by the BOP on a contract
basis to provide religious services are not required to pass the PAT. (Roberts
Dep. at 36.)
Father Jeffrey contends that the
PAT does not measure the physical ability to perform functions essential to the
position of prison Chaplain. The BOP insists that all employees,
including Chaplains, must be able to
respond to emergencies and prison disturbances, and the PAT appropriately
measures ability to respond to such situations.
II.
DISCUSSION
A. Summary Judgment Standard
Summary judgment should be granted when “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 ... the moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). A fact is “material” if proof of its existence or non-existence
might affect the outcome of the suit under the applicable law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
“Facts that could alter the outcome are material facts.” Charlton v. Paramus
Bd. Of Educ., 25 F.3d 194, 197 (3d Cir. 1994) (internal quotation marks
omitted.) “Summary judgment will not lie if the dispute about a material fact
is ‘genuine,’ that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
Initially, the moving party must show the absence of a genuine issue
concerning any material fact. All doubts as to the existence of a genuine issue
of material fact must be resolved against the moving party, and the entire
record must be examined in the light most favorable to the nonmoving party.
White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988); Cont’l lns.
Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982).
B. The Analytical Framework for Father
Jeffrey’s Disability Discrimination Claim
The Rehabilitation
Act of 1973 prohibits federal agencies from discriminating against individuals
with disabilities in employment decisions. See Shiring v. Runyon, 90 F.3d 827,
830-31 (3d Cir. 1996). The standards applicable to a Rehabilitation Act
employment discrimination claim are those applied under Title I of the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12111, et seq. See
29 U.S.C. § 791(g). Consequently, the definitions and standards used in
assessing claims under the ADA will be used to assess the parties’ positions in
this case. McDonald v. Pa. Dep’t of Pub. Welfare, 62 F.3d 92, 95 (3d Cir.
1995). (“Whether suit is filed under the Rehabilitation Act or under the
Disabilities Act, the substantive standards for determining liability are the
same.”)
Under
the ADA, the term “discriminate” is explicitly defined to include:
using qualification standards, employment tests
or other selection criteria that screen out or tend to screen out an individual
with a disability or a class of individuals with disabilities unless the
standard, test or other selection criteria, as used by the covered entity, is
shown to be job-related for the position in question and is consistent with
business necessity. 42 U.S.C. § 12112(b)(6).
Plaintiff bases his claim on the assertion that the PAT is neither
job-related for the position of Chaplain nor consistent with business
necessity. He thus argues that the BOP, in relying upon the PAT, discriminated
against him on the basis of his disability. In addressing this claim, both
parties have struggled to present their arguments within the analytical
framework for “disparate treatment” or “disparate impact” cases. Neither
paradigm, however, is pertinent here. See Davidson v. America Online, Inc., 337
F.3d 1179, 1189 (10th Cir. 2003).
It is
undisputed that the BOP relied upon Father Jeffrey’s inability to successfully
complete the PAT in terminating his employment. Father Jeffrey attributes his
inability to complete the PAT to his COPD and resulting breathing difficulties.
It is thus evident that Father Jeffrey’s claimed disability played a prominent
part in the BOP decision to terminate Father Jeffrey’s employment. Where, as
here, it is evident that the employer relied upon a disability in making an
adverse employment decision, courts have held that an employee may establish a
prima facie case of employment discrimination by showing that he or she:
(1) has a disability,
and (2) is ‘otherwise qualified’ for the position despite the disability either
‘a without accommodation from the employer; (b) with an alleged “essential” job
requirement eliminated; or (c) with a proposed reasonable accommodation.’ If
the employee challenges a purported job criterion as not essential and seeks
its elimination, the burden then shifts to the employer to establish that the
‘challenged job criterion is essential, and therefore a business necessity,’ or
that its elimination ‘will impose an undue hardship upon the employer.’
Hamlin v. Charter Township of Flint 165 F.3d
426, 429 (6th Cir. 1999) (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d
1173, 1186 (6th Cir. 1996)). Accord Davidson, 337 F.3d at 1189-90. n3
Viewed
in the context of this version of a prima facie case, the key issues presented
for resolution on defendant’s summary judgment motion are whether, as a matter
of law: (1) Father Jeffrey does not suffer from a “disability” as that term is
defined under the Rehabilitation Act; and (2) the PAT is essential in assessing
fitness for employment as a BOP Chaplain.
C.
Father Jeffrey’s “Disability”
The
Rehabilitation Act protects a person who has a physical or mental impairment
that substantially limits one or more major life activities. See 29 U.S.C. §
705(9)(B); 45 C.F.R. § 84.3(j)(1). There are thus three components to a
determination of whether a person is covered by the anti-discrimination in
employment provisions of the Rehabilitation Act: (1) the existence of a mental
or physical impairment, (2) implicating a “major life activity”, (3) in a
“substantially” limiting way. See Toyota Motor Mfg. Ky. Inc. v. Williams, 534
U.S. 184, 194-96, 151 L. Ed. 2d 615, 122 S. Ct. 681 (2002); Heilweil v. Mount
Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994).
The
term “physical impairment” encompasses a physiological disorder or condition
affecting the respiratory system. See Williams, 534 U.S. at 195 (citing 45
C.F.R. § 84.3(j)(2)(ii) (2001)); Heilweil, 32 F.3d at 722; 29 C.F.R. §
1630.2(h)(1). In this case, there is no dispute that COPD constitutes a
“physical impairment.”
The
term “major life activity” has been defined to include “breathing.” 45 C.F.R. §
84.3(j)(2)(ii); 29 C.F.R. § 1630.2(1). There is no question in this case that
COPD implicates the major life activity of breathing.
What
is at issue on the summary judgment motion is whether the COPD “substantially
limits” Father Jeffrey’s breathing. Observing that the word “substantially” is
defined as “considerable” or “to a large degree,” the Supreme Court has ruled
that “impairments that interfere in only a minor way with” a major life
activity do not fall within the coverage of disability discrimination laws.
Williams, 534 U.S. at 185. Under the regulations implementing the ADA, the term
“substantially limits” means “significantly restricted as to the condition,
manner or duration under which an 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)(ii). Whether a particular impairment
substantially limits a major life activity requires an individualized
assessment on a case-by-case basis. Williams, 534 U.S. at 199; Hendler v.
Intelecom USA, Inc., 963 F. Supp. 200, 207 (E.D.N.Y. 1997).
Observing
that Father Jeffrey is able to discharge his pastoral duties and “is able to
walk as a means of exercise, to work, to drive, to take care of himself, and to
otherwise perform the functions required for daily living,” (Br. in Supp. of
S.J. Mot., Dkt. Entry 31, at 21), the BOP asserts that, as a matter of law,
Father Jeffrey is not substantially limited in the major life activity of
breathing. Father Jeffrey, on the other hand, contends that evidence of severe
breathing difficulties when engaging in tasks such as carrying approximately
ten pounds up a few steps, precludes summary adjudication of whether the COPD
substantially limits his breathing. Father Jeffrey asserts that the evidence
shows that he “is unable to climb steps, run, swim the width of a swimming
pool, lift more than ten pounds, and generally engage in exertional
activities.” (Br. in Opp. to S.J. Mot., Dkt. Entry 32, at 12.) Father Jeffrey
has also submitted medical evidence indicating that exertional limitations
cannot be ameliorated pharmacologically. (S. R. at 35.)
Faced
with similar facts, courts have ruled that a determination of whether a person
is substantially limited in the major life activity of breathing is not
amenable to resolution on a summary judgment motion. See, e.g. Hoskins v.
Oakland County Sheriff’s Dep’t, 227 F.3d 719, 725-26 (6th Cir. 2000); Horvath
v. Savage Mfg., Inc., 18 F. Supp. 2d 1296, 1301-03 (D. Utah 1998). In Geuss v.
Pfizer, Inc., 971 F. Supp. 164, 169-70 (E.D. Pa. 1996), the plaintiff’s asthma
did not preclude him from walking to and from work. Asthma attacks, however,
were triggered by “minor instances of physical exertion, such as running
approximately 100 feet ....” Id. at 169. The court ruled that, although the
issue was a close one, the evidence was sufficient to sustain a jury
determination that the plaintiff’s “ability to breathe [was] significantly
restricted in condition, manner, and duration in comparison to the average
person in the population,” and thus could be regarded as substantially limiting
his ability to breathe. Id. at 170. Similarly, in Bond v. Sheahan, 152 F. Supp.
2d 1055, 1065-66 (N.D. III. 2001), evidence that the plaintiff’s asthma
precluded her from participating in many activities that she had previously
enjoyed, such as dancing, jumping rope, and playing volleyball, was sufficient
to preclude summary judgement in the face of evidence that her asthma was “mild
persistent.” Id. at 1065. In Hendler, 963 F. Supp. at 207, the court found that
long-term asthma that produced periods of wheezing, shortness of breath,
coughing, and increased susceptibility to respiratory infections could be
regarded as substantially limiting the major life activity of breathing so that
summary judgment on the issue was not warranted.
In
this case, although the evidence is not overwhelming, Father Jeffrey has shown
that his COPD produces serious breathing difficulties upon the slightest
exertion. He has further shown that the impairment is permanent and not
improved by medication. Although he is able to walk on a treadmill for up to
sixty minutes, he must do so at a very slow pace. A rational jury, confronted
with this evidence, could reasonably conclude that Father Jeffrey’s COPD has a
considerable impact on his ability to breathe and that he is significantly
restricted as to the major life activity of breathing as compared to the
average person in the general population. Accordingly, the defendant is not
entitled to summary judgment on the question of whether Father Jeffrey has a
“disability” as that term is applied under the Rehabilitation Act. n4
D. The PAT as Measuring Ability to Perform
“Essential Functions” of the Position of Chaplain
The
BOP asserts that, even if summary judgment on the issue of whether Father
Jeffrey is disabled is not warranted, judgment must be entered in its favor
because his failure to pass the PAT precludes a determination that he is a
“qualified” individual with a disability. A “qualified individual with a disability”
refers to a person “with a disability 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). In this case, the BOP argues
that Father Jeffrey is unable to perform the essential functions of the
position he desired because he failed the PAT, designed to measure the ability
to perform the anticipated tasks of a correctional worker. Father
Jeffrey has challenged the BOP assertion that performing correctional worker
tasks measured by the PAT is essential to his functioning as a Chaplain. The BOP bears the burden of showing that the
“challenged job criterion is essential, and therefore a business necessity, or
that a proposed accommodation will impose an undue hardship ....” Monette, 90
F.3d at 1186.
Defendant recognizes that “the term ‘essential functions’ means the
fundamental job duties of the position, not marginal functions.” (Br. in Supp.
of S.J. Mot., Dkt. Entry 31, at 22.) Regulations implementing the ADA identify
reasons why a job function may be considered essential. 29 C.F.R. §
1630.2(n)(2) . The regulations also list evidence pertinent to a determination
of whether a particular job function is essential. 29 C.F.R. § 1630.2(n)(3).
The regulatory criteria and listing of pertinent information will be addressed
in the context of the evidence in this case.
First,
a function may be regarded as essential “because the reason the position exists
is to perform that function.” 29 CFR § 1630.2(n)(2)(i). The PAT measures the
ability to perform correctional work. It cannot be said that the Chaplain positions
exists to perform the function of responding to disturbances and maintaining
discipline at a penal institution.
The
BOP insists that it has the prerogative to establish a “correctional worker
first” policy, meaning that every BOP employee must be able to perform
correctional work, including responding to disturbances and emergencies. An
employer’s judgment as to the essential functions of a particular job is indeed
pertinent evidence. See 29 CFR § 1630.2(n)(3)(i). The employer’s judgment,
however, is not conclusive. See Skerski v. Time Warner Cable Co., 257 F.3d 273,
283 (3d Cir. 2001). In this regard, “an employer may not turn every condition
of employment which it elects to adopt into a job function, let alone an
essential job function, merely by including it in a job description.” Davidson,
337 F.3d at 1191. Thus, the BOP “correctional worker first” policy does not end
the inquiry.
The BOP points to evidence that Chaplains,
on occasion, have responded to prison disturbances and other emergency
situations. A particular function may be regarded as essential where there is a
“limited number of employees available among whom the performance of that job
function can be distributed.” 29 C.F.R. § 1630.2(n)(2)(ii). In this case, the evidence does
not permit a conclusion that the number of employees available to respond to a
prison disturbance is so small that a prison Chaplain must be expected to be a
first responder. Moreover, Father Jeffrey has pointed to evidence that the
occasions on which a Chaplain has responded to a prison disturbance are
relatively small, and a Chaplain has not been required to actually participate
in quelling a disturbance. Thus, the fact that Chaplains have responded to
prison emergencies does not mandate a conclusion that this function is
essential to the position of prison Chaplain.
A
function may be regarded as essential where it is shown that the “incumbent in
the position is hired for his or her expertise or ability to perform the
particular function.” 29 C.F.R. § 1630.2(n)(2)(iii). There is no contention in
this case that Father Jeffrey or any other Chaplain was hired for his expertise
or ability to serve as a correctional worker first.
The BOP relies upon the fact
that the job description for the FCI McKean Chaplain position included
responding to emergencies and providing security. (R. 92.) Evidence of
whether a particular function is essential includes pertinent written job
descriptions. 29 C.F.R. § 1630.2(n)(3)(ii) . Father Jeffrey points out that a
six page overview of BOP Chaplaincy services sent in October of 1998 did not
make any mention of Chaplains providing security or responding to emergencies,
other than to state that “applicants will complete a battery of tests to
demonstrate the physical stamina necessary to maintain a safe and secure
correctional environment.” (SR 42.) Thus, the fact that the written job
description for the Chaplain position at FCI McKean included responding to
emergencies does not compel the conclusion that such a function is essential to
the job.
Another pertinent factor in the analysis is the amount of time devoted
to that responsibility. 29 C.F.R. § 1630.2(n)(3)(iii). Father Jeffrey has
presented evidence that, during the entire year 2000, Chaplain Roberts
responded only to five emergency signals at FCI McKean.
Also militating against a
conclusion that responding to emergencies is an essential job function is the
fact that Chaplains hired before January 1, 1997 are not required to undergo
the PAT. Defendant has not proffered any evidence that any incumbent Chaplain
has been required to undergo testing to assure his or her ability to respond to
prison disturbances.
The BOP argues that the ability
to respond to emergency situations must be regarded as essential for all BOP
employees, including Chaplains, because of the grave consequences of an
inability to do so. The environment within an institution can, at times, be
explosive. The BOP, however, has not shown that there is a substantial risk of
harm if a Chaplain is unable to respond to a prison disturbance or other
emergency. In this regard, the evidence shows that the BOP often retains
ministers on a contract basis to provide chaplaincy services, and those
independent contractors are not expected to meet the requirements of the PAT or
to respond to emergency situations. An individual who, because of his or her
disability, poses a “significant risk of substantial harm to the health or
safety of the individual or others that cannot be eliminated or reduced by
reasonable accommodation,” 29 C.F.R. § 1630.2(r), is not entitled to invoke the
protections of the anti-discrimination legislation. The evidence in this case
does not permit a conclusion that retention of a Chaplain who fails the PAT
creates a high probability of substantial harm. Thus, this factor does not
compel entry of judgment in favor of the BOP. See Hamlin, 165 F.3d at 431-32
(that Assistant Fire Chief was unable to perform the rigorous activities of a
fire fighter did not warrant judgment in favor of the employer where there was
no evidence of a high probability of potential harm because of the plaintiff’s
physical limitations).
Another pertinent factor is the treatment of other persons in the same
position. In this regard, there is evidence that the BOP waived the PAT
requirement for another applicant for a Chaplain’s position in a different
institution. Defendant’s argument that the waiver is irrelevant because the
other applicant did not take the PAT, whereas Father Jeffrey failed the PAT, is
not persuasive. The significance of the evidence is that the BOP was willing to
hire a Chaplain without subjecting that person to the testing regimen that it
maintains measures ability to perform essential functions of the position. This
fact weighs against a conclusion that satisfactory completion of the PAT is an
essential criterion for the position of Chaplain.
“Determining whether a particular function is essential is a factual
inquiry.” Davidson, 337 F.3d at 1191. Accord Skerski v. Time Warner Cable Co.
257 F.3d 273, 279. Father Jeffrey has tendered sufficient evidence to show that
the issue of whether satisfactory completion of the PAT is an essential
criterion of the position of BOP Chaplain cannot be resolved as a matter of
law. Indeed, this intensely factual inquiry must be left to a jury.
III.
CONCLUSION
For the reasons set forth above,
Defendant’s motion for Summary Judgment (Dkt. Entry 20) will be denied.
An appropriate Order follows.
s/
Thomas I. Vanaskie, Chief Judge
Middle
District of Pennsylvania
Notes:
1 Citation to the Defendant’s Statement of
Material Undisputed Facts, submitted in accordance with Local Rule of Court
56.1, signifies that the factual assertion in question has been admitted by the
plaintiff.
2 Father Jeffrey claims that the notation that
he ran four miles every day was in error. Father Jeffrey explained that he
exercises by walking slowly on a treadmill. (R. 26.)
3 Research has not disclosed any Third Circuit
precedent addressing the appropriate analytical framework where it is clear
that the employer has relied upon a physical or mental impairment in making an
adverse employment decision. The Supreme Court, however, has cautioned that the
concept of a prima facie case of employment discrimination was not intended to
be “rigid, mechanized, or ritualistic.” Furnco Constr. Corp. v. Waters, 438
U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978). And our Court of
Appeals has recognized that “a prima facie case cannot be established on a
one-size-fits-all basis.” Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403,
411 (3d Cir. 1999). The burden shifting analysis established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973),
for disparate treatment cases does not make sense where the employer’s reliance
upon the employee’s physical or mental impairment is obvious. As one court has
observed, “if the employer admits that the disability played a prominent part
in the decision, or the plaintiff has other direct evidence of discrimination
based on disability, the burden-shifting framework may be unnecessary and
inappropriate.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n.3 (10th Cir.
1997). Likewise, a “disparate impact” analysis, involving statistical evidence
of the discriminatory impact of an otherwise facially neutral employment
criterion, is not applicable where, as here, the criterion is not facially
neutral insofar as disabilities are concerned. I am thus persuaded to employ
the analytical framework established by the Sixth Circuit in Monette, and
applied by the Tenth Circuit in Davidson.
4 Cases in which summary judgment has been
granted where the major life activity of breathing was at issue generally
concerned environmentally-induced asthma. In those cases, the plaintiffs had
breathing difficulties in certain work environments, but were not otherwise
restricted when outside such working environments. See, e.g., Muller v.
Costello, 187 F.3d 298, 314 (2d Cir. 1999); Heilweil, 32 F.3d at 723-24. In
this case, Father Jeffrey’s breathing difficulties are induced upon physical
exertion, and not limited to a particular environment.
ORDER
NOW
THIS 26th DAY OF SEPTEMBER, 2003, for the reasons set forth in the foregoing
memorandum, IT IS HEREBY ORDERED THAT:
1.
Defendant’s Motion for Summary Judgment (Dkt. Entry 20) is DENIED.
2. A
telephonic scheduling conference will be conducted on Thursday, October 23,
2003 at 2:00 p.m. Counsel for plaintiff is responsible for arranging the call
and all counsel should be ready to proceed before the undersigned is contacted.
s/
Thomas I. Vanaskie, Chief Judge
Middle
District of Pennsylvania