Hershgordon v. Pathmark Stores Inc , 285 F. App'x 846 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-7-2008
Hershgordon v. Pathmark Stores Inc
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2731
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2731
ROBERT HERSHGORDON,
Appellant
v.
PATHMARK STORES, INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 06-cv-01234)
District Judge: Hon. Timothy J. Savage
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 6, 2008
BEFORE: AMBRO, CHAGARES and COWEN , Circuit Judges
(Filed: July 7, 2008)
OPINION
COWEN, Circuit Judge.
Robert Hershgordon appeals from the District Court’s grant of summary judgment
in favor of Pathmark Stores, Inc. (“Pathmark”). Hershgordon asserted that Pathmark
discriminated against him based on his disability when it did not allow him to return to
work following back surgery. We will affirm.
I.
Hershgordon began working for Pathmark in April 2002 as a shift supervisor. In
July 2002, Hershgordon injured his back while on the job. After this injury, Hershgordon
continued to work at Pathmark without restrictions. In September 2002, Hershgordon
was promoted to night store manager.
Hershgordon underwent back surgery in August 2003. He was out of work from
August 2003 until October 2003. Hershgordon was subject to certain doctor’s restrictions
upon his return to work.
In January 2004, Hershgordon underwent a second back surgery. He was unable
to return to work for eight months. In September 2004, his doctor cleared him to return to
work with certain restrictions. Pathmark determined that he could not return to work with
the restrictions as given, and denied his request to return to work.
Subsequently, a Pathmark official suggested to Hershgordon that he submit a
request for a reasonable accommodation. On November 2, 2004, Hershgordon submitted
a request for a reasonable accommodation along with a physical capabilities evaluation
filled out by his doctor. Hershgordon specifically requested that he return to the night
manager position, or that he be promoted to a trainee for assistant store manager or
general store manager. On November 11, 2004, Pathmark’s American With Disabilities
(“ADA”) committee denied Hershgordon’s request for a reasonable accommodation. In
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denying the request, the committee noted that it carefully considered the doctor’s
mandated restrictions as they related to Hershgordon’s night manager position. The
committee concluded that the work activity restrictions were such that any reasonable
accommodation would be insufficient to allow Hershgordon to function as a non-union
associate.
On November 21, 2004, Hershgordon submitted a second request for a reasonable
accommodation along with a physical capabilities form filed out by his doctor that was
less restrictive than the November 2 submission. Pathmark’s ADA committee rejected
this second request. Specifically, the committee noted that while the new restrictions
illustrated Hershgordon’s improvement, the reasonable accommodations that could be
provided would be insufficient for Hershgordon to function as a non-union associate.
In January 2005, Pathmark’s ADA committee reopened Hershgordon’s case based
on an independent medical examination. While the committee noted Hershgordon’s
continued improvement, it once again found that any reasonable accommodation that
Pathmark might provide would be insufficient to enable Hershgordon to function as a
non-union associate.
In March 2006, Hershgordon filed his complaint in the District Court.
Hershgordon alleged that Pathmark violated the ADA when it refused to reinstate him to
the night store manager position. After the close of discovery, the District Court granted
summary judgment in favor of Pathmark. It determined that Hershgordon failed to
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establish his prima facie case because Pathmark did not regard him as disabled.
Hershgordon timely filed a notice of appeal.
II.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over a District Court’s order granting summary judgment. See Lexington Ins. Co.
v. W. Pa. Hosp., 423 F.3d 318, 322 n.2 (3d Cir. 2005).
III.
The ADA prohibits discrimination against a qualified individual with a disability
because of the disability of such individual. See 42 U.S.C. § 12112(a). To make out a
prima facie case of discrimination under the ADA, a person must establish that he (1) has
a disability; (2) is a qualified individual; and (3) has suffered an adverse employment
action because of that disability. See Turner v. Hershey Chocolate, U.S., 440 F.3d 604,
611 (3d Cir. 2006) (citations omitted). “The term ‘disability’ means, with respect to an
individual - (A) a physical or mental impairment that substantially limits one of the major
life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C. § 12102(2). In this case,
Hershgordon asserted that Pathmark regarded him as having a disability pursuant to prong
(C) of the ADA’s disability definition. A person is “regarded as” having a disability if he:
(1) Has a physical or mental impairment that does not
substantially limit major life activities but is treated by the
covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially
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limits major life activities only as a result of the attitudes of
others toward such impairment; or
(3) Has [no such impairment] but is treated by a covered
entity as having a substantially limiting impairment.
Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187 (3d Cir. 1999). To prevail under the
“regarded as” prong, the plaintiff must establish that the employer believed that he was
limited in his ability to work in “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.” See Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999). Stated
differently, “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 v. United
Parcel Serv., Inc., 527 U.S. 516, 523 (1999); see also Taylor, 177 F.3d at 192 (“An
employer who simply, and erroneously, believes that a person is incapable of performing
a particular job will not be liable under the ADA. Liability attaches only to a mistake that
causes the employer to perceive the employee as disabled within the meaning of the
ADA, i.e., a mistake that leads the employer to think that the employee is substantially
limited in a major life activity.”).
In this case, the record indicated that Pathmark only considered Hershgordon to be
temporarily incapable of performing his job of night store manager. This is not enough to
make Pathmark liable under the ADA. Summary judgment was proper because Pathmark
only regarded Hershgordon’s injury as temporary. See Rinehimer v. Cemcolift, Inc., 292
F.3d 375, 380 (3d Cir. 2002) (noting that temporary non-chronic impairment of short
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duration is not a disability covered by the ADA); see also Pollard v. High’s of Balt., Inc.,
281 F.3d 462, 471 n.5 (4th Cir. 2002) (noting that the employer did not regard employee
as disabled where the decision not to allow employee to return to work “was not done
based on a faulty perception that she would never return to that position”). Indeed,
Hershgordon’s own doctor told Pathmark’s ADA committee that Hershgordon’s
prognosis was “good.” Furthermore, an employer only regards a person as disabled if it
determines that the person cannot perform a wide range of jobs. See Taylor, 177 F.3d at
192; see also Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996) (“the mere fact that
an employer is aware of an employee’s impairment is insufficient to demonstrate either
that the employer regarded the employee as disabled or that that perception caused the
adverse employment action”). Hershgordon relies heavily on Taylor in his appellate
brief. However, this case is unlike Taylor. In Taylor, the employer determined that the
plaintiff was unable to perform any job in the supermarket. See 177 F.3d at 188.
IV.
The District Court properly entered summary judgment in favor of Pathmark.
Appellant’s uncontested motion to strike a portion of his appellate brief is granted. We
will affirm.
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