*1 CONCLUSION reasons, foregoing appeal
For the judgment
dismissed as moot. The of the vacated,
district court is and the matter is
remanded dismissal action. KELLY, Appellant,
Francis J.
DREXEL UNIVERSITY.
No. 95-2046. Appeals,
United States Court of
Third Circuit.
Submitted under Thud Circuit 34.1(a) 12, 1996. Aug.
LAR Aug.
Decided 1996. Rehearing Sept.
Sur Petition for *2 Roche, Levering,
Kathryn H. Susan M. Homans, Drinker, D. Michael Biddle & Reath, PA, Philadelphia, Appellee. ALITO, Before: GREENBERG and FISHER, Judges, and District Circuit Judge.*
OPINION OF THE COURT GREENBERG, Judge. Circuit
I. INTRODUCTION Appellant Kelly appeals Francis J. from an order for entered in this brought against action which he his former employer, University, alleging Drexel that employment Drexel terminated his and sub- sequently him in failed rehire violation of Age Employment Discrimination Act (“ADEA”), 621-34, §§ the Ameri- U.S.C. (“ADA”), Act can with Disabilities U.S.C. Pennsylvania §§ Human (“PHRA”), Act Pa. Relations Cons.Stat. (1991). addition, Kelly §§ In Ann. 951-63 alleges Drexel discriminated him terms, respect compensation, to his con- ditions, privileges on the age. basis of his summary judg- court entered The district ment Drexel’s favor. Drexel (E.D.Pa.1995). Univ., F.Supp. 864 The held, first, was not disabled purposes ADA and thus was for the that Act. protection not entitled to court went on to hold the alternative disabled, legally he failed even were produce sufficient evidence Drexel against him on the basis of had discriminated Further, impairment. the court held that against Kelly due not discriminate Drexel did rejected age The court also to his either. rehiring Kelly’s claims with terms, conditions, privi- compensation, employment. Kelly appealed. then leges of procedural posture of the In view of the case, light most the facts in a we recite Kelly. Drexel hired who favorable to old, PA, years April as a Hagan, Philadelphia, for was then Mary Ann Sep- buyer purchasing department. in its Appellant. * Fisher, Judge States the United Clarkson S. Senior Honorable 7, 1995, 1987, Kelly hip, leaving opinion fractured Ms of November entered
tember
limp.
orthopaedic
granting
His
Drexel’s motion and on De-
a noticeable
order
diagnosed
his condition as severe
specialist
1995, the court entered an order
cember
joint
degenerative
disease of
post-traumatic
Kelly’s
denying
motion for reconsideration.
*3
hip
protrusio
and
acetabulum of the
right
the
6,
Kelly
appeal
filed a notice of
on December
1993,
joint.
January
In
Drexel
right hip
1995,
appeal
and an amended notice of
on
Kelly’s position. At
the time
eliminated
19,1995.
December
discharged Kelly,
purсhasing de-
the
Drexel
indicated,
found that
As we have
the court
director,
James
partment consisted
Kelly was not disabled and that Drexel did
assistant,
Graham,
buyers,
buyer
and three
against him when it dis-
not discriminate
responsibility.
areas of
each with distinct
charged
Kelly challenges
him.
these deter-
old,
years
then was 68
was the
who
appeal.
minations on this
As we also have
buyer,
supervised general pur-
and
senior
indicated,
rejected Kelly’s
the
university. Thomas Tucker
chases for the
against him
claims that Drexel discriminated
54)
buyer
the scientific
and handled
(age
was
respect
rehiring
respect
to
and with
to
departments.
the science
purchases
terms, conditions,
compensation,
privi-
and
46)
(age
physical plant
Dick
was
John
leges
employment, Kelly,
of
at
buyer
responsible
was
for the universi-
and
878,
challenge
but
does
these de-
ty’s
plant department.
physical
appeal.
terminations on this
experiencing financial
Drexel was
part
university-wide
of a
jur-
difficulties and as a
question
The district court had federal
Gallot,
spending,
to cut
Freddie
Drex-
effort
Kelly’s ADEA
ADA
isdiction over
and
claims
treasurer,
president
vice
and
instructed
el’s
§
pursuant to 28 U.S.C.
and exercised
purchasing depart-
Graham to reduce
jurisdiction
supplemental
Kelly’s
over
state
$30,000.
by
budget
ment’s
Graham deter-
§
claims under 28
U.S.C.
We have
required
mined that he could attain the
sav-
appellate jurisdiction pursuant
to 28 U.S.C.
ings by eliminating Kelly’s position, which
plenary
§ 1291 and exercise
review.
$32,340,
assigning Kelly’s responsi-
paid
January
himself.
bilities
Tucker and
On
II. DISCUSSION
26, 1993,
posi-
Drexel notified
January
be
effective
tion was to
eliminated
proMbits employers
The ADA
from dis-
31,1993.
criminating against qualified individuals with
disabilities because of their disabilities
cer-
1, 1993, Kelly
July
charge
filed a
of
On
employment-related
tain
matters.
U.S.C.
disability
age
discrimination with the
12112(a).1
prohibits age
§
The ADEA
dis-
Equal Employment Opportuni-
United States
(“EEOC”)
against
crimination in
decisions
ty
and a similar com-
Commission
persons
years
age.
who are
least 40
of
plaint
Pennsylvania
Human Rela-
623(a)(1).2
§
prohibits
U.S.C.
The PHRA
an
tions Commission. After thе EEOC issued a
alia,
hire,
letter,
employer,
refusing
inter
from
right
Kelly brought
to sue
suit on
29, 1994,
discharging,
discriminating
August
or otherwise
the district court. On
23, 1995,
summary
against
employee
age
on the basis of
or
June
Drexel moved for
non-job
judgment.
handicap
disability.
On November
the dis-
related
or
955(a).3
court, pursuant
§
trict
to its memorandum Pa. Cons.Stat. Ann.
provides
part:
1. The ADA
in relevant
It shall be unlawful for an
...
discharge any
to fail or refuse to hire or to
entity
against
No covered
shall discriminate
individual or otherwise discriminate
qualified
disability
with a
individuаl
because of
any
compensa-
individual with
to his
regard
of such individual in
tion, terms, conditions,
privileges
employ-
job
procedures,
or
of
application
hiring,
ad-
ment,
vancement,
age....
discharge
employees, employ-
because of such individual's
or
623(a)(1).
job training,
§
compensation,
29 U.S.C.
ee
and other
terms, conditions,
privileges
employ-
part:
3.The PHRA reads in relevant
ment.
12112(a).
42 U.S.C.
discriminatory practice,
It
he
shall
an unlawful
(a)
race,
provides
part:
any employer
2. The ADEA
in relеvant
...
because of the
vidual”;
Pennsylvania
impair-
courts are
has “a record of such an
While
Pennsyl
interpretations
ment”;
“regarded
having
in their
or
not bound
such an
interpretations
paral
law federal
vania
12102(2);
impairment.”
42 U.S.C.
VII,
ADA,
in Title
or
provisions
lel
§ 1630.2(g). Kelly
C.F.R.
does not claim
ADEA,
Pennsylva
Harrisburg
Dist. v.
Sch.
that he was fired based on a
record
dis-
Comm’n, 77 Pa.
Human Relations
nia
ability, so we focus on the first
third
(1983),
its
466 A.2d
Cmwlth.
addition,
definitions. Br. at 36-37. In
Drex-
generally interpret
nevertheless
courts
dispute
el does not
suffers from an
counter
PHRA in aсcord with its federal
that causes
to walk with a
Servs.,
Allegheny Health
parts;
see Gomez
limp
walking
activity.
is a
(3d Cir.1995)
Inc., 71 F.3d
1083-84
*4
Thus,
Br. at 12 n. 8.
the burden rests with
VII are inter
(noting that PHRA and Title
Kelly
injury “substantially
to show that his
—
denied,
U.S. -,
similarly), cert.
preted
ability
limits” his
to walk.
(1996);
2524,
physical
individual or inde
regulations
provide
also
that the decision
4. The
contractor,
employ
pendent
to refuse to hire or
expect-
“[t]he
consider
duration or
maker should
with,
discharge
contract
or to bar or to
or
impairment”
per-
"[t]he
ed
of the
duration
indepen
employment such individual or
from
expected
long
impact, or the
manent or
term
contractor, or to otherwise discriminate
dent
resulting
long
impact
permanent
term
of or
or
independent
con
such individual or
1630.2(j).
impairment.” 29
from the
C.F.R.
hire,
compensation,
tractor with
tenure, terms,
in this
provisions are not determinative
These
privilеges
or
of em
conditions
case.
contract,
ployment
if the individual or inde-
following
deposition
provides
manual also
two
during Ms
about The
asked
When
relating walking:
examples
walking, Kelly
on his
stated
the limitations
not walk “more
permanent
he could
Example
that he believed
1—CP has a
knee
“certainly
pain
or so” and that he
impairment
than a mile
that causes
when he
App.
periods.
at 467. He also stated
He can walk
jog.”
walks for extended
couldn’t
discomfort,
stairs,
climbing
pacе
“I have to
for ten miles at
time without
that when
slower,
would,
experiences pain
naturally, hold
but he
on the eleventh
myself
and I
Friedenberg,
mile. CP’s knee
does not sub-
rail.” Id. Dr. Z.B.
onto the
stantially
ability
limit
to walk. The
M.D.,
Kelly’s treating physician, submitted
average person
general population
in the
following statement:
would not be able to walk for eleven miles
my
care
Mr.
has been
since
experiencing
without
some discomfort.
problems
for severe
December
CP,
Example
who has sickle cell anе-
2—
joint.
right hip
with his
mia, frequently experiences severe back
patient
diagnosis
on this
was severe
joint pain.
As
result of the sickle
degenerative joint
post-traumatic
disease
disease,
cell
often cannot walk for more
CP
right hip
protrusio
acetabulum
very
impair-
than
short distances. CP’s
*5
Mp joint.
right
of the
(sickle
anemia) substantially
ment
cell
lim-
great
patient’s
ability
average
condition causes him
person
The
its his
to walk. The
difficulty walking
in
around.
general population
in
can walk for
very
than
more
short distances.
however,
Kelly,
presented
App. at
no
Id. at 902-17.
required any special
he
devices
evidence that
in walking.
or crutches to aid him
severity
Kelly’s injury
like a cane
While the
The district court held “as matter of law falls somewhere between the cases discussed
stairs,
[Kelly’s]
climbing
which
that
trouble
examples,
regulations
in these
both the
slowly
requires him to move
and hold the
comparatively
that
the manual make clear
handrail,
substantially
does not
limit his abili-
ability
on the
to walk
moderate restrictions
ty walk.”
907
at 874. We
regulations
to
are not disabilities. The
state:
holding
the district court’s
in this
will affirm
who,
impair
individual
because of an
[A]n
regard.
ment,
only
very
periods
can
walk for
brief
substantially
time would be
limited in
Compliance Manual5 notes
The EEOC
major
activity walMng.
life
An indi
complaints
questions
that most ADA
involve
legs
vidual who uses artificial
would like
ability
an individual’s
to work but the
about
substantially
major
wise be
limited in the
recognizes
ability
manual
that this
need not
activity walking
life
because the individ
Compliance
Manual
be an issue.
EEOC
ual is unable to walk without the aid of
902,
(1995);
§
at 902-18
see also Hamm v.
prosthetic devices.
(7th Cir.1995)
721,
Runyon,
724 n.
added).
1630.2(j)
§
app.
(emphasis
29 C.F.R.
(noting
addressing
dearth of cases
substan-
regulations
provide:
further
walk).
ability
tial limits on
The manual
out,
instance,
points
substantially
“if
An
in
for
an individu-
individual is not
limited
(as
unusually
major
activity
it
...
al’s arthritis makes
difficult
life
the limitation
compared
people
average
significant
to most
or to the
does not amount to a
restriction
walk,
person
general population)
compared
in
with
when
the abilities of the
substantially
average person.
example,
then the individual is
limited in
an individu-
...
ability
one would not
al who had once been able to walk at an
[and]
walk
extraordinary speed
not
need to ascertain whether the individual is
would
be substan-
substantially
working.”
tially
activity
also
limited
limited
life
if,
walking
physical impair-
Compliance Manual
at 902-18.
as a result of a
EEOC
explains
determining
5. The manual
that was "issued for use
whether an individual should be
it
investigators
investigating
when
Compliance
EEOC
considered disаbled.
EEOC
Man-
charges
under
of discrimination
the ADA” and
§ual
at 1.
particular provides guidance
902 in
section
plaintiff
that the
failed to answer
ment,
only
to walk at Stone noted
were
able
he or she
employer’s arguments
any legal pre-
moderately
speed, or even at
average
an
cedent or evidence of substantial
limitation.
average speed.
below
“[although
explained
plaintiff
The court
added). Similarly, the manual
(emphasis
Id.
briskly; and has some
cannot walk
trouble
a disabili-
rise to the level of
“[t]o
states that
stairs,
ability
I
climbing
find that his
to walk
significantly
must
restrict
ty,
significantly
nor
limited
Impair-
major life activities.
an individual’s
*4.
restricted.” Id. at
mild limitations are
that result
ments
Similarly, in
v. William
Richardson
Powell
Compliance
Man-
EEOC
not disabilities.”
plaintiff
testified that she suffered
Co.
at 902-19.
ual
degenerative
hip,
from
arthritis in her
which
limp”
her to walk with noticeable
“cause[d]
in which a court has
Kelly points to no case
and “made it difficult for her to climb stairs.”
difficulty
plaintiffs
moderate
held that
*3,
Despite
*7.
this
WL
climbing
sufficed to consti
walking stairs
testimony,
granted
sum-
the district
fact,
“disability”
the ADA. In
it
tute
mary judgment
on
favor
appears that
in the several
grounds
plaintiff
failed to show
arisen,
issue has
cases in which the
any major
that “her condition interfered
rejected such claims. See Grav
courts have
activity.”
Id. at *7. The district court
94-C-1228,
Eng’g
No.
er v. National
allege
emphasized
plaintiff
did not
(N.D.Ill.
1995);
July
1994),
part, 87 F.3d
part,
in
rev’d in
Eng’g
plain-
In
v.
Co. the
Graver National
aff'd
(10th Cir.1996);
v.
in
Richardson William tiff suffered from arthritis
his left ankle
pro-
that he “walked with a
and testified
C-1-93-528,1994
WL 760695
Powell
No.
experienced significant
limp
nounced
and
(S.D.Ohio
10, 1994).
Nov.
*1,
443944, at
pain
walking.”
while
1995WL
Servs.,
example,
Entergy
in
Stone
that he “was not able to walk
*10. He stated
Inc.,
his
plaintiff
the
testified that due to
grass
surfaces” and
on
or other non-level
polio,
from “muscle
bout with
he suffered
slowly than
would
[he]
that he “walked more
weakness,
leg longer
partial paralysis, one
[his]
the condition of
left
have walked absent
longer
and one foot
than the
than the other
court found
ankle.” Id. at *10. The district
plaintiff
1995 WL
at *3. The
other.”
“[a]lthough plaintiff walks with a
endurance,
inability
his
limp,
limited
an
there is no evidence that
also claimed
marked
walk,
ability to
limp significantly impaired his
flights
than two
of stairs with-
to climb more
himself,
perform the functions of
care for
or
resting, difficulty descending stairs be-
out
Thus,
grant-
job.”
*11.
the court
his
Id. at
support his
right
his
foot could not
cause
summary
employer.
the
Id.
judgment for
ed
run,
in
weight,
inability
an
to
limited motion
at *12.
sup-
body, difficulty bending over without
Foods,
Finally,
Angelo’s Italian
in Lowe v.
port,
inability
keep pace
to
with others
plain-
Inc.
district court addressed the
the
group,
difficulty main-
walking in a
when
claim that she was
tiffs dual
taining
generally.
Id. The em-
his balance
ability
to walk and to work.
limited
her
however,
ployer’s expert physician,
testified
employer
1994 WL
at *4-*5. The
body impair-
plaintiff
had a “total
manager in
plaintiff, a kitchen
dismissed the
disabled,
15%,”
ment of
that he was not
restaurant,
the
after she informed
soon
syndrome
“post polio
that his
mild
[was]
diagnosed
employer that
had been
she
enough
require
not
the use of
[did]
that he
bend,
multiple
longer
and no
could
sclerosis
braces, canes, crutches,
any
aor wheelchair.”
objects.
at *1. Her
stoop,
carry heavy
Id.
facts,
granted
Id.
these
the district court
On
employer
to
as
physician had written
her
employer,
in favor of the
follows:
holding
plaintiff
to show a
the
failed
neurological problems she
Because of her
case,
easily
fatigues exceedingly
and needs to be
“disability.”
in this
the court
As
occasionally.
good
prior
as it was
to the tear” and that his
She is not
sit down
able to
stooping,
“inability
briskly
run
or climb stairs as
able to do lots of
to
going to be
heavy
carry anything
easily
injury
could
the
are not
bending and cannot
as he
before
lbs.)
anything up
(greater than 15
sufficient residual effects
constitute
‘dis-
”
occasionally.
ability.’
should avoid
only
She
Id.
15 lbs.
to use a hand rail
she
needs
stairs. She
Rogers
v. International Marine Termi-
stairs,
cannot climb stairs
so
has to climb
nals,
plaintiff
employer
Inc. the
laid off the
carry anything.
he took
leave for treatment of bone
after
sick
Id. at *4.
gout
spurs,
ligament damage, and
the
“[tjhere
right
was
at *1. The
court noted
ankle. 1995 WL
The district
impair-
impact
granted
employer summary
of [her
the
no evidence
away from
To the
judgment
plaintiff
work.
because the
had averred
ment]
[her]
on
in the case foсus-
contrary,
evidence
was
the
to his
that his
upon
of these limitations
merely
temporary
es on the effect
“a
condition and not a
job.”
at *5.
ability
perform
her
Id.
disability.”
Relying
permanent
[her]
Id. at *3.
on
facts,
plain-
Blanton,
the court held
On these
court found that even
the district
impairment sub-
tiff failed to show that her
accepting
plaintiffs
later statement that
stantially
ability
or to
limited her
to work
permanent,
suffering
he still was
“from a
summary judgment against
granted
walk and
anatomical, whole-body impairment оf thir-
recognize that
plaintiff.
Id. We
percent,”
not
teen
such a limitation did
Appeals
for the Tenth Circuit
Court
disability.
amount
to a
Id. The court of
Foods, Inc.,
Angelo’s
Lowe v.
Italian
affirmed,
appeals
holding that there was “no
(10th Cir.1996), substantially impaired
Roger’s impairment
evidence that
substan-
validity
precedent
reversing
Lowe’s
tially
ability
limits his
to stand and walk.”
summary judgment on the ADA claim
Rogers,
judges who cir- to all the other available
this court and regular court in active judges of the
cuit
service, judge who concurred in the no rehearing, for and a having asked
decision judges of the circuit
majority of the circuit having for
regular service voted active banc, petition
rehearing by rehearing is denied. In re ORTHOPEDIC BONE SCREW SCIRICA, Before MANSMANN PRODUCTS LIABILITY DIAMOND, Judges and District Circuit LITIGATION. Judge.* Society and M. Scoliosis Research Steven ORDER OF DISMISSAL M.D., Mardjetko, Petitioners at No. 96- SCIRICA, Judge. Circuit 1131, Appellants at No. 96-1132. January On the Scoliosis Research Nos. 96-1132. (“SRS”) Society Mardjetko, and Steven M. M.D., stay seeking public filed a motion of Appeals, United States Court by plaintiffs underlying disclosure of data Third Circuit. study safety efficacy of bone screws, Study entitled “A Historical Cohort Argued Aug. 1996. Thoracic, Fixation in Lum- Pedicle Screw Aug. Decided Spinal They bar and Sacral Fusion.” assert- privileged under the Illinois ed the data was Act, Medical 5 Ill. Con. Stat. Studies 5/8— seq,1
2101 et February In a memorandum dated the motion. the district court denied First, the district court found the Illinois inapplicable Medical Studies Act under Fed R. Evid. it believed “there [was] 501 because pervasive aspect litigation,” federal to the mandating applicatiоn of the federal law of Order, privilege. In re: Memorandum and Orthopedic Liability Bone Screw Products (E.D.Pa. Litigation, MDL 1014 at 4 Febru- *9 1996) (Pretrial 252). ary Order No. Sec- ond, law the district court found Illinois govern did not under Klaxon v. Stentor Elec- Mfg. tric 313 U.S. 61 S.Ct. (1941). Finally, L.Ed. 1477 the court reaf- Study prior ruling that firmed its Cohort * Diamond, inadvertently produced Study Gustave United States 1. The FDA Cohort The Honorable plaintiffs prior materials to the in October 1995 Judge of Penn- District for the Western District Mardjet- adjudication of the SRS's and Dr. to ko’s claims of sylvania, sitting by designation. privilege.