Date: 09-20-2002

Case Style: Williard Buskirk v. Apollo Metals and PMA Insurance Group

Case Number: 01-3556

Judge: Sloviter

Court: United States Court of Appeals for the Third Circuit

Plaintiff's Attorney: Thomas Moore Holland and Jeffrey Campolongo, Law Office of Thomas More Holland, Philadelphia, Pennsylvania

Defendant's Attorney: Larry J. Rappoport of Stevens & Lee, P.C., Wayne, Pennsylvania

Description: Appellant Willard Buskirk sued his employer, Apollo Metals, claiming discrimination in violation of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C.S 12101 et seq. (2002), and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. Ann. S 951 et seq. (2002). Buskirk also raised a common law claim of tortious interference with contractual relations arising out of the termination of his settlement negotiations with Apollo Metals' workers' compensation insurance carrier, the PMA Insurance Group.

At the conclusion of Buskirk's presentation of his case- in-chief at trial, the District Court granted Apollo Metals' Rule 50(a) Motion for Judgment as a Matter of Law and entered judgment for Apollo Metals on all remaining counts of Buskirk's complaint. The District Court concluded that Buskirk could not recover under his "regarded as" disabled claim because "regarded as" plaintiffs are not entitled to reasonable accommodation. The District Court alternatively found that even were Apollo Metals required to provide reasonable accommodations, it did so. Finally, the District Court concluded that Apollo Metals was in a privileged position to interfere with Buskirk's settlement negotiations with PMA.

Buskirk challenges all of the above conclusions. He also contends that the District Court abused its discretion in limiting the testimony of one of his experts and in sustaining Apollo Metals' objection to a communication between Apollo Metals' counsel and its insurance provider.

I.

Background

A. Facts

Buskirk was hired by Apollo Metals in 1981. He held a number of positions there throughout his employment, including slitter helper, polisher, finish helper, box maker, and pre-polisher.

On February 8, 1996, Buskirk injured his back when he slipped on ice and fell in Apollo Metals' parking lot on his way to work. After taking two days off to recover, Buskirk returned to work and continued to work until June 26, 1996. His back injury prevented him from returning to the position of a box maker, the job he held prior to the injury. Instead, Apollo Metals placed Buskirk in light duty positions, such as buff building, quality control, and sample cutting. Throughout that time period, Buskirk received treatment for his back injury from several doctors as well as a chiropractor.

In June 1996, Buskirk's doctors advised him to discontinue working entirely in order to rest his back and Buskirk did so until October 1996. During this leave of absence, Buskirk filed a workers' compensation claim and received partial benefits. On October 1, 1996, Buskirk returned to work at Apollo Metals in light duty positions, working less than a full forty-hour work week. In addition to the reduced hours, Apollo Metals allowed Buskirk to leave work early on occasion so that he could attend aquatic therapy sessions. Buskirk testified that he still experienced pain in the light duty jobs but that he was able to work through it. Buskirk further testified that he only once complained of his back pain to any of his supervisors, and that was in February 1996 soon after the accident when he had to leave work early due to his pain. In response to occasional inquiries by his supervisors, he replied that he was "having a little bit of pain, but [was] putting up with it." App. at 89. Throughout this period, Buskirk continued to receive medical treatment and underwent physical therapy, a work strengthening program, and a work hardening program.

On or about May 30, 1997, Apollo Metals terminated Buskirk. In a letter to Buskirk, Apollo Metals stated:

The reason for our decision is that you are not presently able and are not expected to be able to perform your former position, with or without reasonable accommodation[ ], since you sustained your injury on February 8, 1996. You have missed considerable time due to a restricted work schedule and while undergoing treatment. Since returning to work on September 30, 1996, you have been unable to perform the duties of a Box Maker. We had attempted to place you in other temporary positions which were consistent with your medical restrictions but had been periodically informed by you that even that work was too strenuous and could not be performed by you.

Most recently you have been asked to perform [light duty work]. However, this work is not of a permanent nature and we can no longer offer that employment to you.

We have also received and reviewed documentation from your treating physicians concerning your prognosis. Dr. Pollock advises that you "will be unable to work at his present position as a Box Maker in the foreseeable future" and Dr. Kuhns has advised that you will "not be able to resume work duties as a Box Maker due to your lower back condition." Neither has suggested any accommodation to allow you to continue to be gainfully employed.

As we cannot accommodate you within the Box Maker position or any other vacant position and have no position that meets your limited physical capabilities, we have no choice but to discontinue your employment.

App. at 658.

Buskirk was given this termination letter at a meeting with members of Apollo Metals' management and two union representatives. Deborah Schnabel of the Human Resources Department, the author of the letter, presided over the meeting and explained that Buskirk was being terminated from Apollo Metals. Buskirk's union filed a grievance on his behalf, and as a result, Apollo Metals changed Buskirk's status so that he would no longer be considered terminated, but rather would be considered on a leave of absence allowing him to accrue workers' compensation benefits.

On June 25, 1997, Buskirk's union presented Apollo Metals with a non-exhaustive list of six different job classifications that it claimed Buskirk was able to perform. On this same date, Buskirk received a note from Dr. Mark Kuhns stating that his lifting restrictions were being increased (to twenty pounds frequently, and to a maximum of thirty pounds occasionally) and that Buskirk could work eight hours a day, five days a week. However, Apollo Metals responded that although Buskirk's condition was improving, he still could not perform any work at Apollo Metals. Apollo Metals contends that it did not attempt to place Buskirk in another position prior to December 10, 1998, because it believed Buskirk had not received a full medical release to return to work until that date. On December 10, 1998, Buskirk's treating physician released him to work with a "permanent restriction" on lifting of forty pounds. App. at 655. After this date, Buskirk was placed in the next available position consistent with his permanent forty pound lifting restriction, that of a polisher, on February 22, 1999. He remains in this position to this day.

Buskirk's union representatives took responsibility for informing Buskirk of any vacancies at Apollo Metals and provided Apollo Metals with the results of Buskirk's medical evaluations throughout this time period. Buskirk contends that he was medically released to full work no later than March 2, 1998 when an evaluation by an independent medical examiner gave Buskirk a release to return to full- time, medium work with a weight restriction of fifty pounds -- even more generous than the December 10, 1998 medical report. However, a medical evaluation entered by Buskirk's treating physician one day later, March 3, 1998, stated that Buskirk "continues to improve but is not yet ready to return to regular work." App. at 654.

Prior to his reinstatement, Buskirk negotiated a settlement of his workers' compensation claim with PMA for $120,000, a figure that largely represents future lost earnings. After Apollo Metals reinstated Buskirk, PMA discontinued settlement negotiations and the agreement was not executed.

B. Procedural History

On January 15, 1999, shortly before his reinstatement, Buskirk filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging disability discrimination in violation of the ADA and PHRA, and tortious interference with a contract. In his complaint, Buskirk alleged that he was a qualified person with a disability, and that Apollo Metals violated the ADA and PHRA by not accommodating his disability and by unlawfully terminating him.

Upon completion of discovery, Apollo Metals filed a motion for summary judgment. In response, Buskirk alleged that even if he did not have an actual disability (an impairment that substantially limited major life activities), he was nevertheless disabled under the ADA because Apollo Metals regarded him as disabled and/or because he had a record of impairment.

The District Court granted Apollo Metals' motion in part and denied it in part. See Buskirk v. Apollo Metals, 116 F. Supp. 2d 591 (E.D.Pa. 2000). The District Court granted the motion with respect to Buskirk's claims that were based on actual disability and record of impairment. The District Court concluded that Buskirk was not actually disabled under the statute because he had failed to prove that he was substantially limited in a major life activity by his physical impairment. Id. at 600. The District Court also concluded that Buskirk had not proven that he had a record of impairment that substantially limited a major life activity, another category of disability under the ADA. Id. However, the court denied the motion with respect to Buskirk's claim that he was "regarded as" disabled, finding that genuine issues of material fact existed to support a conclusion that Apollo Metals erroneously regarded Buskirk as disabled. Id. at 601-02. The District Court also denied the motion with respect to the tortious interference claim, concluding that Apollo Metals had introduced no evidence to support a finding of an underlying financial interest to support a privilege to interfere. Id. at 604.

A jury trial began on August 20, 2001, and two days later, Buskirk concluded the presentation of his case. At that point, Apollo Metals moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). After hearing argument on the motion, the District Court granted the motion, concluding that an employer is not obligated to provide reasonable accommodations to an employee who is regarded as disabled but is not actually disabled. The District Court went a step further and found that even were Apollo Metals required to reasonably accommodate Buskirk, it did so. Finally, the District Court found that Buskirk did not present sufficient evidence from which a jury could find Apollo Metals liable for tortious interference.

Buskirk timely appealed. We have jurisdiction pursuant to 28 U.S.C. S 1291.

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Click the case caption above for the full text of the Court's opinion.

Outcome: For the reasons set forth, we will affirm the District Court’s grant of judgment as a matter of law on behalf of Apollo Metals.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None