Opinion
Civil Action No. 16-1139
08-21-2018
HANS C. EHNERT, Plaintiff, v. WASHINGTON PENN PLASTIC CO., INC. Defendant.
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the reasons stated herein, it is respectfully recommended that the motion for summary judgment filed on behalf of defendant Washington Penn Plastic Co., Inc. ("WPP") (ECF No. 47) be granted.
II. REPORT
A. Procedural History
Plaintiff Hans C. Ehnert's complaint was filed on July 28, 2016. (ECF No. 1). WPP filed its answer on January 19, 2017 (ECF No. 4). On October 24, 2017 the court granted plaintiff's counsel's motion to withdraw from this case (ECF No. 24). Plaintiff has proceeded pro se since then.
Plaintiff contends that WPP discriminated against him by not hiring him because of his disabilities. On February 20, 2018, WPP filed its motion for summary judgment with brief in support and appendix thereto, as well as a concise statement of material facts ("WPP CSMF"). (ECF Nos. 47-50). Plaintiff has filed a response in opposition to the motion for summary judgment, and a memorandum in opposition to the motion for summary judgment. (ECF Nos. 60, 61). He has also filed a concise statement of material facts (ECF No. 62), an appendix (redacted to protect certain personal identifiers and confidential medical information) with a supplement (ECF Nos. 63, 64), and a sealed appendix. WPP has also filed a reply brief. (ECF No. 68). The matter is now ripe for our consideration.
B. Standard of Review
A court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if, based on the evidence in the record, a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the suit. Id. The court will view evidence in the light most favorable to the non-moving party and "all justifiable inferences are to be drawn in [that party's] favor." Hunt v. Cromartie, 526 U.S. 541, 552 (1999). Federal Rule of Civil Procedure 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
With this standard in mind we review the evidence of record.
C. Record Evidence
Unless otherwise stated the following relevant facts are not in dispute. WPP is a company with locations across the United States and abroad that prepares polypropylene compounds and polyethylene products. (WPP CSMF at ¶ 1.) On April 23, 2012, Plaintiff was placed by Staffmark, a staffing company, at an assignment in one of WPP's facilities. (WPP CSMF at ¶ 2). During that temporary assignment, plaintiff was to perform general labor for operations of pelletizing machines. (WPP CSMF at ¶ 2). Although Plaintiff worked at WPP, he was a Staffmark employee during his temporary assignment. (WPP CSMF at ¶ 3). In connection with his assignment at WPP, it was understood that plaintiff would later be considered for hire as a WPP employee. (WPP CSMF at ¶ 4). On May 23, 2012, plaintiff was informed that he would not be hired by WPP following the completion of his temporary assignment. (WPP CSMF at ¶ 5). At the time plaintiff worked at WPP, he suffered from a variety of medical conditions. (WPP CSMF at ¶ 6). Plaintiff never requested any accommodation of WPP, but he was permitted to "take it a little easy" when he had kidney stones. (WPP CSMF at ¶ 7) (ECF No. 62 at ¶ 7).
There is no dispute that plaintiff has been unable to work since May 21, 2012. (WPP CSMF at ¶ 8). Within months of leaving WPP, on July 3, 2012, plaintiff spoke with a representative of the United States Social Security Administration ("SSA"), who completed an application (the "Application") for social security disability insurance ("SSDI") benefits on plaintiff's behalf. (WPP CSMF at ¶ 9). In the application plaintiff represented that he had been unable to work because of a "disabling condition" since May 21, 2012 - two days before his temporary work assignment at WPP ended. (WPP CSMF at ¶ 10). 11. When completing the application, plaintiff affirmed that all information he gave in connection with the application was true. (WPP CSMF at ¶ 11).
The application was denied by the SSA on November 26, 2012. In the denial letter, the SSA stated that Plaintiff's condition was "not severe enough to keep [him] from working," and that while Plaintiff had "some limitations" in his activities, the severity of his condition did not "totally disable" him. (WPP CSMF at ¶ 12). The SSA also stated that plaintiff could "adjust to other work." (WPP CSMF at ¶ 12). On December 3, 2012, Plaintiff requested a hearing on his disability benefit claim because he disagreed with the initial determination that he was able to work. (WPP CSMF at ¶ 13).
Plaintiff was represented in his SSA claim by attorney Elaine L. Rhein. (WPP CSMF at ¶ 14). On May 2, 2014, plaintiff submitted, through Attorney Rhein, a pre-hearing memorandum to the SSA. (WPP CSMF at ¶ 15). In that pre-hearing memorandum, plaintiff asserted that he was unable to perform his prior work, as well as "any other work" due to his physical and mental conditions. (WPP CSMF at ¶ 16). He also provided a detailed explanation of the physical and mental conditions to support his claim and further maintained that May 21, 2012 was the alleged onset date of his disability. (WPP CSMF at ¶ 16). A favorable decision was issued on July 25, 2014, finding plaintiff disabled since May 21, 2012. (WPP CSMF at ¶ 17). The decision stated that plaintiff was "unable to perform any past relevant work" and concluded that "there are no jobs that exist in significant numbers in the national economy that [plaintiff] can perform." (WPP CSMF at ¶ 18). Plaintiff has continued receiving social security disability income benefits on a retroactive, ongoing and continuing basis since the SSA determination in his favor. (WPP CSMF at ¶ 19).
Plaintiff testified at his deposition that his work at WPP required him to lift between five and twenty pounds and a typical work day started between six or seven o'clock in the morning and ended between four and four-thirty in the afternoon. (ECF No. 49-2 at 5-6).
Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on November 19, 2012, alleging that WPP and Staffmark violated the Americans with Disabilities Act and the Pennsylvania Human Relations Act. (WPP CSMF at ¶ 20). The EEOC dismissed Plaintiff's charge and issued a Right to Sue Notice on April 27, 2016. (WPP CSMF at ¶ 21). The sole remaining claim in this action is a claim of disability discrimination against WPP pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. § 2000e et seq. and the Pennsylvania Human Relations Act (PHRA), 43 Pa. C.S.A. § 951 et seq.
Staffmark was never served with the Complaint, and on June 28, 2017 this Court approved a stipulation both dismissing Staffmark from this action and dismissing Plaintiff's ADEA claim against WPP. (ECF No. 19).
D. Discussion
To succeed in proving discrimination under the ADA and PHRA a plaintiff must show these essential elements: i) that he has a "disability" as that term is defined by the ADA; ii) that he is otherwise qualified to perform the essential functions of his job, with or without a reasonable accommodation; and iii) that he has suffered an adverse employment decision as a result of discrimination. Gaul v. Lucent Technologies, 134 F.3d 576, 580 (3d Cir. 1998). WPP argues plaintiff is estopped from arguing that he was qualified to perform the essential functions of his job as of May 21, 2012, based on his representations to the SSA that, as of that date, he was disabled and unable to perform any work that exists in significant numbers in the national economy. This, according to WPP, supports its argument that there is no genuine dispute of material fact that he was not a "qualified" individual under the ADA and PHRA; in the absence of this prima facie element, judgment should be entered in WPP's favor.
Much of plaintiff's response addresses his contention that the defendant's proffered reasons for not hiring him were a pretext for discrimination. We need not reach that argument as there is no genuine dispute that he cannot establish a prima facie case. Summary judgment motions such as these require application of the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This test first places the burden on the plaintiff to establish a prima facie case. Only if plaintiff makes a prima facie showing, "the burden shifts to the employer to provide a legitimate non-retaliatory reason for its conduct." Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017). If the employer succeeds on this point, then "the burden shifts back to the plaintiff 'to convince the factfinder both that the employer's proffered explanation was false ... and that retaliation was the real reason for the adverse employment action.'" Id. (citing Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006))
The legal standard for a determination that a claimant is disabled under the Social Security Act is an exacting one, requiring proof of inability to perform past relevant work (here, the Plaintiff's physical inability to perform his past work as a crane operator, material handler and licensed practical nurse) and the inability to perform any substantial gainful employment considering his age, education and work experience. Under the Social Security Act, a "disability" is defined, for purpose of a claimant's entitlement to benefits, as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999) (citations omitted). A claimant is considered unable to engage in any substantial gainful activity "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 1382c(a) (3)(B).
In Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), the U.S. Supreme Court set forth the estoppel framework for this kind of claim. The Court considered the case of a plaintiff who brought an ADA claim despite the fact that she had applied for, and received, SSDI benefits. Id. at 798. The Court held that the pursuit, and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim. Nevertheless, an ADA plaintiff cannot simply ignore his SSDI contention that he was too disabled to work. To survive a motion for summary judgment, he must explain why that SSDI contention is consistent with his ADA claim that he could "perform the essential functions" of his previous job, at least with "reasonable accommodation." Id.. In other words, the plaintiff's "explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation.'" Id. at 807.
Cleveland precludes a categorical finding of judicial estoppel but does not bar the application of the doctrine after an individualized inquiry. The Third Circuit recently elaborated on the Cleveland holding:
Explanations of the sort Cleveland requires are, in short, contextual—they resolve the seeming discrepancy between a claim of disability and a later claim of entitlement to work not by contradicting what the plaintiff told the [benefits provider], but by demonstrating that those representations, understood in light of the unique focus and requirements of the [benefits provider] leave room for the possibility that the plaintiff is able to meet the essential demands of the job to which he claims a right under the ADA.Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 273 (3d. Cir. 2012) (quoting Detz v. Greiner Indus., Inc., 346 F.3d 109, 118 (3d Cir.2003)).
In the Third Circuit, courts apply a "Cleveland analysis," rather than the traditional three-step judicial estoppel analysis, "in the context of a summary judgment motion where, as here, the claimant clearly made a contradictory assertion after benefitting from a previous sworn assertion, the court or agency thus having accepted the previous assertion." Detz, 346 F.3d at 117-18 (citing Motley v. N.J. State Police, 196 F.3d 160, 164-66 (3d Cir.1999)). When conducting a Cleveland analysis, a court must ask (1) whether the positions taken by the plaintiff in his SSDI application and his discrimination claim genuinely conflict and (2) whether the plaintiff has adequately reconciled the two positions. Id. at 118, 120. In reconciling the two positions, the plaintiff "must proceed from the premise that his previous assertion of an inability to work was true, or that he in good faith believed it to be true," and nonetheless demonstrate that the prior representations are "consistent with his ability to perform the essential functions of his job." Id. at 118 (quoting Lee v. City of Salem, 259 F.3d 667, 674-75 (7th Cir.2001)).
Here, plaintiff's positions genuinely conflict. By statute and under related regulations, to be eligible for SSDI an applicant must be incapable of performing his "past relevant work" or any other job existing in significant numbers in the national economy. See 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c (a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f), 404. 1560(b)-(c); Detz, 346 F.3d at 119. In support of his application, plaintiff averred that due to his impairments, he lacked the ability to perform his prior jobs as a nurse or machinist, as well as any other work. He claimed, inter alia, he was unable to lift more than 10 pounds occasionally or three pounds frequently, he could not kneel, stoop, crouch, balance or climb, that he has difficulty reaching, handling, fingering, and feeling, and that he could not stand or walk for more than one hour in an eight hour workday, and that he cannot sit for more than four hours. (ECF No. 49-9 at 6-7). He claimed that he suffered constant chronic pain which when coupled with other conditions made him unable to do any type of work. (ECF No. 49-9 at 7) (emphasis added).
Like the plaintiff's positions in Detz, plaintiff's positions here can be summarized as follows:
He informed the SSA in a sworn statement that his disability prevented him from
working—in other words, that he was physically incapable of performing his job. Now he seeks to advance a position before this Court that rests on the assertion that he was discharged from a position that he was physically capable of performing. This second position "crashes face first against" his prior claim. Feldman [v. Am. Mem'l Life Ins. Co., 196 F.3d 783, 791 (7th Cir.1999)]. Thus, we are compelled to find that his two assertions are "patently inconsistent," Motley, 196 F.3d at 167[.]Detz, 436 F.3d at 119-20. In Detz, as here, the plaintiff's initial application for SSDI benefits was denied on the basis that the agency determined he could perform some work and he successfully appealed. The disability determination was found to be retroactive to the date the plaintiff was terminated by his employer, and the court found that plaintiff could not explain the inconsistent positions. Id. at 120. The Court of Appeals affirmed the district court's granting of summary judgment in favor of Detz's employer.
Plaintiff's positions advanced before, and representations made to, the SSA and this court genuinely conflict. For estoppel purposes, the key is not simply what the SSA determined, but what representations plaintiff made to the SSA, which the SSA accepted. On this record, the court must find that plaintiff is estopped from asserting that he was qualified to perform his job as of the date he was told he would not be hired, May 23, 2012. This is a necessary element of his ADA claim. Such an assertion now contradicts his previous statements that he could not work at all as of two days prior. Plaintiff has advanced no reasonable explanation that reconciles his two positions. Plaintiff cannot simply disavow his prior sworn representations upon which the government relied in finding he was unable to perform his past relevant work or perform any other gainful employment as of May 21, 2102.
In addition to Detz, we are persuaded by other legal authority. In Taliaferro v. Trump Entertainment Resorts Inc., 2018 WL 656369 (3d Cir. Feb. 1, 2018), the United States Court of Appeals for the Third Circuit affirmed the lower court's granting of summary judgment in favor of defendant employers on the grounds the employee was estopped from asserting that she was not disabled as of disability date from which she began receiving disability payments from the SSA. Similarly, in Lincoln v. Momentum Systems Ltd., 86 F. Supp.2d 421 (D. N.J. 2000), the district court applied judicial estoppel to grant summary judgment in favor of the defendant former employer on the plaintiff's ADA claims and his claims for disability discrimination under the New Jersey Law Against Discrimination (NJLAD), N.J. Stat. Ann. §§ 10:5-1 et seq. based on the plaintiff's statements regarding his disability made in connection with his application for SSDI and other long term disability benefits.
There is no genuine dispute, therefore, that plaintiff was not qualified to perform the essential functions of his work with WPP as of the date he learned that he would not be hired. Defendant having shown that plaintiff cannot establish a prima facie case, plaintiff has no viable claim.
Plaintiff cites to Lowe v Hamilton County Department of Job and Family Services, 2009 WL 818960 (March 27, 2009 S.D. Oh.), aff'd on other grounds, 610 F.3d 321 (6th Cir. 2009); the Lowe decision is not binding precedent, and the factual background of that case is inapposite. --------
For these reasons it is respectfully recommended that WPP's motion for summary judgment be granted.
III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that WPP's motion for summary judgment be granted.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the plaintiff, a non-ECF registered user, shall have until September 7 , 2014 to file written objections; Defendant shall have until September 4 , 2018 to file written objections. No extensions of time to file objections will be granted. Failure to timely file objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). DATED: August 21, 2018
By the Court:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge cc: all registered counsel via CM-ECF
Hans C. Ehnert
1082 Lynn Portal Road
Washington, PA 15301