SUPINSKI v. UNITED PARCEL SERVICE, INC. No. 10-1730.
EDWARD M. SUPINSKI, Appellant, v. UNITED PARCEL SERVICE, INC.; CATHY CLINE; TRACEY NEWCOMER.
United States Court of Appeals, Third Circuit.
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.
Before: AMBRO and FISHER, Circuit Judges, and SÁNCHEZ, District Judge.
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.
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 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.
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 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.
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.,
To make out a prima facie case of disability discrimination or failure to accommodate under the ADA,
Focusing on the latter question,
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:
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.,
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 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).) 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.)
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 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.
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 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 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.
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.
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