Kelly v. Drexel University

• Decision Date: 12 August 1996
• Docket Number: No. 95-2046,95-2046
• Citation: 94 F.3d 102
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 1075, 65 USLW 2192, 111 Ed. Law Rep. 1160, 5 A.D. Cases 1353, 18 A.D.D. 247, 8 NDLR P 298 Francis J. KELLY, Appellant, v. DREXEL UNIVERSITY. . Submitted under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 102

94 F.3d 102

71 Fair Empl.Prac.Cas. (BNA) 1075, 65 USLW 2192,

111 Ed. Law Rep. 1160, 5 A.D. Cases 1353,

18 A.D.D. 247, 8 NDLR P 298

Francis J. KELLY, Appellant, v. DREXEL UNIVERSITY.

No. 95-2046.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit

LAR 34.1(a) Aug. 12, 1996.

Decided Aug. 23, 1996.

Sur Petition for Rehearing Sept. 20, 1996.

Mary Ann Hagan, Philadelphia, PA, for Appellant.

Kathryn H. Levering, Susan M. Roche, Michael D. Homans, Drinker, Biddle & Reath, Philadelphia, PA, for Appellee.

Before: GREENBERG and ALITO, Circuit Judges, and FISHER, District Judge. ^*

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellant Francis J. Kelly appeals from an order for summary judgment entered in this action which he brought against his former employer, Drexel University, alleging that Drexel terminated his employment and subsequently failed to rehire him in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, the American with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-13, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons.Stat. Ann. §§ 951-63 (1991). In addition, Kelly alleges that Drexel discriminated against him with respect to his compensation, terms, conditions, and privileges of employment on the basis of his age.

The district court entered summary judgment in Drexel's favor. Kelly v. Drexel Univ., 907 F.Supp. 864 (E.D.Pa.1995). The court held, first, that Kelly was not disabled for the purposes of the ADA and thus was not entitled to protection under that Act. The court went on to hold in the alternative that even if Kelly were legally disabled, he failed to produce sufficient evidence that Drexel had discriminated against him on the basis of his impairment. Further, the court held that Drexel did not discriminate against Kelly due to his age either. The court also rejected Kelly's claims with respect to rehiring and compensation, terms, conditions, and privileges of employment. Kelly then appealed.

In view of the procedural posture of the case, we recite the facts in a light most favorable to Kelly. Drexel hired Kelly, who was then 56 years old, in April 1981, as a buyer in its purchasing department. In September In 1993, Drexel was experiencing financial difficulties and as a part of a university-wide effort to cut spending, Freddie Gallot, Drexel's vice president and treasurer, instructed Graham to reduce the purchasing department's budget by $30,000. Graham determined that he could attain the required savings by eliminating Kelly's position, which paid $32,340, and assigning Kelly's responsibilities to Tucker and himself. On January 26, 1993, Drexel notified Kelly that his position was to be eliminated effective January 31, 1993.

1987, Kelly fractured his hip, leaving him with a noticeable limp. His orthopaedic specialist diagnosed his condition as severe post-traumatic degenerative joint disease of the right hip and protrusio acetabulum of the right hip joint. In January 1993, Drexel eliminated Kelly's position. At the time Drexel discharged Kelly, the purchasing department consisted of the director, James Graham, a buyer assistant, and three buyers, each with distinct areas of responsibility. Kelly, who then was 68 years old, was the senior buyer, and supervised general purchases for the university. Thomas Tucker (age 54) was the scientific buyer and handled purchases for the science departments. John Dick (age 46) was the physical plant buyer and was responsible for the university's physical plant department.

On July 1, 1993, Kelly filed a charge of disability and age discrimination with the United States Equal Employment Opportunity Commission ("EEOC") and a similar complaint with the Pennsylvania Human Relations Commission. After the EEOC issued a right to sue letter, Kelly brought suit on August 29, 1994, in the district court. On June 23, 1995, Drexel moved for summary judgment. On November 9, 1995, the district court, pursuant to its memorandum opinion of November 7, 1995, entered an order granting Drexel's motion and on December 7, 1995, the court entered an order denying Kelly's motion for reconsideration. Kelly filed a notice of appeal on December 6, 1995, and an amended notice of appeal on December 19, 1995.

As we have indicated, the court found that Kelly was not disabled and that Drexel did not discriminate against him when it discharged him. Kelly challenges these determinations on this appeal. As we also have indicated, the district court rejected Kelly's claims that Drexel discriminated against him with respect to rehiring and with respect to compensation, terms, conditions, and privileges of employment, Kelly, 907 F.Supp. at 878, but Kelly does not challenge these determinations on this appeal.

The district court had federal question jurisdiction over Kelly's ADEA and ADA claims pursuant to 28 U.S.C. § 1331, and exercised supplemental jurisdiction over Kelly's state claims under 28 U.S.C. § 1367. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review.

II. DISCUSSION

The ADA prohibits employers from discriminating against qualified individuals with disabilities because of their disabilities in certain employment-related matters. 42 U.S.C. § 12112(a). ¹ The ADEA prohibits age discrimination in employment decisions against persons who are at least 40 years of age. 29 U.S.C. § 623(a)(1). ² The PHRA prohibits an employer, inter alia, from refusing to hire, discharging, or otherwise discriminating against an employee on the basis of age or non-job related handicap or disability. 43 Pa. Cons.Stat. Ann. § 955(a). ³

While the Pennsylvania courts are not bound in their interpretations of Pennsylvania law by federal interpretations of parallel provisions in Title VII, the ADA, or the ADEA, Harrisburg Sch. Dist. v. Pennsylvania Human Relations Comm'n, 77 Pa.Cmwlth. 594, 466 A.2d 760, 763 (1983), its courts nevertheless generally interpret the PHRA in accord with its federal counterparts; see Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083-84 (3d Cir.1995) (noting that PHRA and Title VII are interpreted similarly), cert. denied, --- U.S. ----, 116 S.Ct. 2524, 135 L.Ed.2d 1049 (1996); Chmill v. City of Pittsburgh, 488 Pa. 470, 412 A.2d 860, 871 (1980) (recognizing precedents suggesting that "the Human Relations Act should be construed in light of 'principles of fair employment law which have emerged relative to the federal [statute] ....' ") (quoting General Elec. Corp. v. PHRC, 469 Pa. 292, 365 A.2d 649, 654 (1976)). Moreover, the PHRA definition of "handicap or disability" is substantially similar to the definition of "disability" under the ADA. Fehr v. McLean Packaging Corp., 860 F.Supp. 198, 200 (E.D.Pa.1994). Consequently, the district court properly treated Kelly's PHRA claims as coextensive with his ADA and ADEA claims, and Kelly does not dispute this treatment on appeal.

As we have indicated, in granting summary judgment the district court held that Kelly failed to establish a prima facie case of disability discrimination because the court found that he was not disabled for the purposes of the ADA. Kelly, 907 F.Supp. at 873-74. We first address this holding. A plaintiff has a "disability" for the purposes of the ADA if he (1) has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual"; (2) has "a record of such an impairment"; or (3) is "regarded as having such an impairment." 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). Kelly does not claim that he was fired based on a record of disability, so we focus on the first and third definitions. Br. at 36-37. In addition, Drexel does not dispute that Kelly suffers from an impairment that causes him to walk with a limp or that walking is a major life activity. Br. at 12 n. 8. Thus, the burden rests with Kelly to show that his injury "substantially limits" his ability to walk.

The ADA does not define "major life activities." Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir.1994), cert. denied, 513 U.S. 1152, 115 S.Ct. 1104, 130 L.Ed.2d 1071 (1995). The EEOC regulations, however, provide, that an individual is substantially limited in a major life activity if he is "[u]nable to perform a major life activity that the average person in the general population can perform" or is "[s]ignificantly restricted as to the condition, manner or duration under which [he] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j). In relevant part, the regulations suggest considering "[t]he nature and severity of the impairment." ⁴ 29 C.F.R. § 1630.2(j)(2)(i). Kelly admits that he is able to walk so the question presented is whether he adduced sufficient evidence from which a factfinder reasonably could conclude that the nature and severity of his injury significantly restricted his ability to walk as compared with an average person in the general population.

When asked during his deposition about the limitations on his walking, Kelly stated that he believed that he could not walk "more than a mile or so" and that he "certainly couldn't jog." App. at 467. He also stated that when climbing stairs, "I have to pace myself slower, and I would, naturally, hold onto the rail." Id. Dr. Z.B. Friedenberg, M.D., Kelly's treating physician, submitted the following statement:

Mr. Kelly has been under my care since December of 1987, for severe problems with his right hip joint.

The diagnosis on this patient was severe post-traumatic degenerative joint disease of the right hip and protrusio acetabulum of the right hip joint.

The patient's condition causes him great difficulty in walking around.

App. at 334. Kelly, however, presented no evidence that he required any special devices like...