Deily v. Waste Mgmt Allentown , 55 F. App'x 605 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
1-27-2003
Deily v. Waste Mgmt Allentown
Precedential or Non-Precedential: Non-Precedential
Docket 01-2956
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Deily v. Waste Mgmt Allentown" (2003). 2003 Decisions. Paper 859.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/859
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-2956
___________
KRIS DEILY,
Appellant
v.
WASTE MANAGEMENT OF ALLENTOWN
_______________________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 00-cv-01100
(Honorable Lowell A. Reed, Jr.)
___________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 18, 2002
Before: BECKER, Chief Judge, SCIRICA and McKEE, Circuit Judges
(Filed January 24, 2003 )
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
Kris Deily appeals the District Court’s order granting summary judgment in favor of
Waste Management of Allentown (“Waste Management”), and its preceding order denying
Deily’s request to file an amended complaint under the Family and Medical Leave Act, 29
U.S.C. § 1001 et seq. (“FMLA”). For the following reasons we will affirm the order of the
District Court granting summary judgement on the appellant’s claims under the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Employee Retirement
Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”), and Pennsylvania law. We will
also affirm the order of the District Court denying Deily leave to amend his FMLA claim.
I.
Appellant Kris Deily worked as a truck driver for Waste Management from 1988
until he was administratively terminated on December 15, 1997.1 Prior to termination,
Deily had not reported to work since June 25, 1996. On November 7, 1996, Waste
Management granted Deily’s request for 12 weeks of unpaid leave under the FMLA. At that
time Deily informed Waste Management that he was suffering from schizophrenia.
1
“Administrative termination” means that Deily was not terminated for cause and could
be considered for re-employment. Waste Management’s medical leave of absence policy
provides that an employee on medical leave of absence for more than 12 months will be
administratively terminated. In addition, the FMLA form that Deily filled out and signed
set forth, “I understand that if I do not return to work on the date indicated above ... my
employment can be terminated.” On December 15, 1997, pursuant to its medical leave of
absence policy, Waste Management informed Deily that the effective date of his
administrative termination was June 25, 1997.
2
Because of his schizophrenic condition, Deily remains incapable of returning to work for
Waste Management or any other employer.
We have appellate jurisdiction under 28 U.S.C. § 1291. Our standard of review is
plenary. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir. 1999). A motion
for summary judgment is properly granted when the record reveals no genuine issue of
material fact, and the movant is entitled to judgment as a matter of law. Jones v. Sch. Dist.
of Philadelphia, 198 F.3d 403, 409 (3d Cir. 1999). We must consider the record in a
manner most favorable to Deily, and afford him the benefit of reasonable inferences. Id.II.
Under the ADA, Deily must establish that he is qualified to do his job, and if
accommodation is required, he must also show that an effective accommodation is
available that would enable him to do the job. See Walton v. Mental Health Ass’n of
Southeastern Pennsylvania, 168 F.3d 661, 670 (3d Cir. 1999). Because there is no
reasonable accommodation that would permit Deily to perform the essential functions of
his job at Waste Management, i.e., return to work, he is not a qualified person with a
disability as contemplated by the ADA. See Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580
(3d Cir. 1998) (stating that plaintiff under ADA must show he is “otherwise qualified to
perform the essential functions of the job”).2 Therefore, Waste Management was not
2
Deily cites the testimony of former supervisor, George Steckel, as direct evidence of
discriminatory discharge and hostile work environment under the ADA. USX contends that
Steckel’s testimony is inadmissable hearsay evidence. Whether or not it is inadmissible
(continued...)
3
obliged to participate in the interactive process of accommodation required by the ADA.
See Shapiro v. Township of Lakewood, 292 F.3d 356, 360 (3d Cir. 2002) (noting that
employee alleging failure to engage in good-faith “interactive process” must show he is
capable of performing essential functions of job with or without reasonable
accommodation). The order of the District Court granting summary judgment for Waste
Management on Deily’s ADA claim will be affirmed.
To make out a prima facie case under § 510 of ERISA, 29 U.S.C. § 1140, Deily
must show “(1) prohibited employer conduct (2) taken for the purpose of interfering (3)
with the attainment of any right to which the employee may become entitled.” Hendricks v.
Edgewater Steel Co., 898 F.2d 385, 389 (3d Cir. 1990) (quoting Gavalik v. Continental
Can Co., 812 F.2d 834, 852 (3d Cir. 1987)). Waste Management terminated Deily
according to the express terms of its medical leave of absence policy and the FMLA
document in which Deily acknowledged Waste Management’s prerogative to fire him after
one year of absence from work. Thus, Waste Management did not terminate Deily with the
specific intent of interfering with the attainment of his pension benefits. See Gavalik, 812
F.2d at 852 (3d Cir. 1987) (plaintiff must establish specific intent of employer to interfere
2
(...continued)
hearsay, this evidence does not create a genuine issue of material fact because no
reasonable jury could conclude that Deily is a qualified person with a disability under the
ADA. Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986) (providing that summary
judgment is appropriate if no reasonable jury could return a verdict for nonmoving party).
Accordingly, Steckel’s testimony does not “require submission to a jury.” Id.4
with attainment of pension benefits). The order of the District Court granting Waste
Management’s motion for summary judgment on Deily’s ERISA claim will be affirmed.
Under Pennsylvania law, an at-will employee may not be discharged in retaliation for
filing a workers’ compensation claim. See Shick v. Shirley Lumber, 716 A.2d 1231, 1236-
1237 (Pa. 1998). Because the Pennsylvania Supreme Court has not yet set forth the
elements of a prima facie case of retaliatory discharge, the District Court applied the
analysis followed in claims of retaliatory discharge under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-3(a). Deily v. Waste Management of Allentown, No. CIV. A.
00-1100, 2000 WL 33358062, at *5-6 (E.D. Pa. 2000); see also Landmesser v. United
Air Lines, Inc., 102 F. Supp. 2d 273, 277-78 (E.D. Pa. 2000) (recognizing that the
Pennsylvania Supreme Court has not defined elements of prima facie case of retaliation);
Alderfer v. Nibco Inc., No. CIV. A. 98-6654, 1999 WL 956375, at *6 (E.D. Pa. 1999)
(recognizing that Pennsylvania courts “have not set forth a model of proof” with which to
evaluate Shick claims).
We review the District Court’s prediction of state law under a plenary standard. See
Compagnie des Bauxites de Guinee v. Ins. Co. of N. Am., 724 F.2d 369, 371 (3d Cir.
1990). We may examine: (1) decisions of the Pennsylvania Supreme Court in related areas
of the law; (2) the “decisional law” of Pennsylvania intermediate courts; (3) federal appeals
and district court cases interpreting state law; and (4) decisions from other jurisdictions
regarding the same issue of law. Wiley v. State Farm Fire & Cas. Co., 995 F.2d 457, 459-
60 (3d Cir. 1993) (citation omitted). Pennsylvania courts already apply the Title VII test to
5
claims of retaliation under the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.
(“PHRA”). See Dici v. Commw. of Pa., 91 F.3d 542, 552 (3d Cir. 1996) (recognizing that
under Pennsylvania law, PHRA is generally applied in accordance with Title VII); Hoy v.
Angelone, 691 A.2d 476, 480 (Pa. Super. 1997), aff’d 720 A.2d 745 (Pa.1998) (providing
that Pennsylvania courts may look to federal decisions interpreting Title VII when
examining claims under PHRA). In addition, Title VII analysis has been followed by district
courts that have reviewed Shick claims in the past. See Landmesser, 102 F. Supp. 2d at
277-78; Sharkey v. Federal Exp. Corp., No. CIV. A. 98-CV-3351, 2000 WL 230330, at
*6 (E.D. Pa. 1999) (applying the “comparable framework” of Title VII to plaintiff’s
retaliation claim under Shick). See also Alderfer, 1999 WL 956375, at *6 (stating that
plaintiff “must at a minimum demonstrate that she engaged in protected activity under
Workers’ Compensation Act”) (emphasis added). For these reasons, we endorse the
District Court’s application of the Title VII framework to Deily’s retaliatory discharge
claim under Pennsylvania law.
To establish a prima facie case of retaliatory discharge under Title VII, Deily must
show that: “(1) the employee engaged in a protected activity; (2) the employer took an
adverse employment action after or contemporaneous with the employee’s protected
activity; and (3) a causal link exists between the employee’s protected activity and the
employer’s adverse action.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d
Cir. 2000) (citations omitted). Deily claims that he was discharged in retaliation for a
worker’s compensation claim that he filed in 1994 because of a work related hernia. But
6
Deily worked for two years without incident until he suddenly stopped reporting to his job
on June 25, 1996. Thus, we are unable to infer a causal link between Deily’s 1994 workers’
compensation claim and his administrative termination on December 15, 1997. The order
dismissing Deily’s claim of retaliatory discharge under Pennsylvania law will be affirmed.
Finally, Deily asserts that he should have been granted leave to amend his claim for
retaliation under the FMLA pursuant to Federal Rule of Civil Procedure 15(a). We review
the District Court’s judgment for abuse of discretion. See Walton, 168 F.3d at 665. A
district court may deny leave to amend a complaint when amendment would be futile. Id.In this case, it is not possible for Deily to fashion a successful FMLA claim from the facts
in the record. According to his complaint, Deily took FMLA leave in June 1996 and did
not contact Waste Management again for 18 months. The District Court noted that Deily
“terminated himself by abusing his rights under FMLA . . . .” Deily v. Waste Management
of Allentown, No. CIV. A. 00-1100, 2000 WL 1858717, at *2 (E.D. Pa. 2000). We agree
and will affirm the District Court’s order denying Deily’s motion to amend his FMLA
retaliation claim.
III.
In conclusion, Deily is neither a qualified person with a disability under the ADA nor
a victim of discriminatory discharge. Accordingly, the judgment of the District Court will
be affirmed.
7
TO THE CLERK:
Please file the foregoing opinion.
Circuit Judge
DATED:
8