Opinion
Civil Action No. 02-6584.
March 30, 2004
ORDER — MEMORANDUM
AND NOW, on this 30th day of March, 2004, it is hereby ORDERED that defendant's motion for summary judgement (doc. no. 21) is GRANTED. The court's order is based on the following reasoning.
Plaintiff, David Provenzano, M.D. ("Provenzano"), brought this action against Thomas Jefferson University Hospital ("TJUH"), seeking damages pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. §§ 955,et seq. Plaintiff must prove the same elements to support his claims under the ADA and PHRA.
The Americans with Disabilities Act provides that,
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112(a).
The Pennsylvania Human Relations Act provides, in relevant part, that it is unlawful,
for any employer because of . . . a non-job related handicap or disability . . . to refuse to hire or employ or contract with, or to bar or to discharge from employment such individual or independent contractor, or to otherwise discriminate against such individual or independent contractor with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract.
43 Pa. C.S.A. 955(a).
In approximately 1991, Provenzano developed carpal tunnel syndrome. He has had several surgeries performed to relieve the symptoms. One of those surgeries exposed his median nerve. Provenzano has been treated for this condition. However, as a result of the condition, Provenzano is limited in his ability to lift, grasp, write, and perform manual tasks. Provenzano refers to this condition as median nerve neuropathy.
Provenzano began an orthopedic surgery residency at TJUH in 1999. The residency consists of five years of training in orthopedic surgery. The first year is a general surgery internship. The remaining four years (referred to as Post Graduate Year ("PGY") 2, PGY3, PGY4, and PGY5) consist of clinical rotations in the field of orthopedic surgery.
As a result of his medical condition, Provenzano had limited ability to perform the functions of the residency program. On June 30, 2000, Provenzano requested that TJUH accommodate his medical condition. Specifically, he requested to be relieved from performing surgery. He was placed in a foot and ankle surgery rotation, but was relieved from performing all surgery. In August, 2000, Provenzano requested a leave of absence because of his medical condition. TJUH granted Provenzano a twelve-week leave of absence, to end November 28, 2000. After returning, he requested that he be relieved from performing surgery until April 1, 2001 and that he be given credit towards the residency for his research work. Plaintiff's Answer to Motion for Summary Judgement, hereinafter "P.," Exhibit 12. He later requested that he further be relieved from surgery during April, 2001.
TJUH agreed to some accommodation, but stated that it would not hold the residency position open past April 1, 2001. TJUH would allow Provenzano's research to count toward the requirement that each resident complete two research projects, but that Provenzano would still be required to comply with the clinical portions until he completed the twelve months required to be promoted to the next level. Provenzano requested that, when he returned in April, 2001, he be placed in an office-based rotation, modified so that he would not be required to perform surgery. TJUH claimed that it could not accommodate Provenzano's request to be placed in the office based rotation because of the tasks that the office-based position included. The office-based rotation, as it existed at the time, required the resident to substitute, "both in the operating room and on the floor," for other residents who were unavailable. P. Exhibit 15. Since Provenzano could not perform surgery, he could not have substituted for the unavailable residents. Instead, TJUH placed Provenzano in a joint service rotation. Id.
Provenzano returned to work on April 2, 2001, but, early on that day, tingling pain returned in his hand and it started to become fatigued. Provenzano Dep. at 321-323. Provenzano notified the co-director of the residency program of the problem and was relieved of duty on April 3, 2001. On April 19, 2001, TJUH informed Provenzano that they could no longer hold his position open because Dr. Buterbaugh, Provenzano's treating physician, informed TJUH that Provenzano should not work, should not use his right wrist, and should wear a wrist splint. P. Exhibit 18. TJUH stated that Buterbaugh informed them that it was unknown when Provenzano would be able to return to work. Id. TJUH informed Provenzano that he would no longer have a position at TJUH, effective April 20, 2001.
Provenzano applied for disability insurance benefits with the Social Security Administration ("SSA") and under two separate disability insurance policies, his American Medical Association ("AMA") long term disability policy and TJUH's TIAA-CREF long term disability policy. In the sworn application to the SSA, Provenzano stated that he became unable to work on August 7, 2000, because of the disabling condition. In the medical form sent to the disability insurance company, Dr. Buterbaugh asserted that the present job could not be modified to allow for handling with the impairment.
TJUH moved for summary judgement. The facts alleged by Provenzano, when viewed in the light most favorable to him, do not support Provenzano's claim that he was qualified for the position of orthopedic surgery resident. Because Provenzano does not present evidence sufficient to support the claim that he could perform the essential functions of the position, with or without reasonable accommodation, his ADA claim cannot survive summary judgement. This is further supported by the statement of his treating physician that Provenzano could not perform the functions of the residency program, nor could he perform the job with accommodations. No reasonable finder of fact could determine that, at the time Provenzano was terminated, he was capable of performing the essential functions of the position. In short, Provenzano was in the orthopedic surgery residency program, but could not perform orthopedic surgery. Nor has Provenzano come forward with evidence that he was terminated because of his disability.
Summary judgement is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgement as a matter of law." Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The inferences from the underlying facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgement is not appropriate "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Although the moving party bears the burden of demonstrating the absence of a genuine issue of material fact, in a case such as this, where the nonmoving party is the plaintiff, and, therefore, bears the burden of proof at trial, that party must present affirmative evidence sufficient to establish the existence of each element of his case. Celotex, 477 U.S. at 323. The nonmovant cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid the entry of summary judgment,see id. at 324, but rather, he "must go beyond the pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. U.P.S., 214 F.3d 402, 407 (3d Cir. 2000). When deciding a motion for summary judgment, courts may not consider evidence that would be inadmissible at trial. See Pamintuan v. Nanticoke Mem. Hosp., 192 F.3d 378, 387 n. 13 (3d Cir. 1999).
Moreover, Provenzano has not come forward with evidence that TJUH failed to provide him with reasonable accommodations. To the contrary, TJUH provided reasonable accommodations, even going so far as to assign an intern to Provenzano for when he would be on night call, excusing him for an extended period of time from performing surgery, and holding his position open for almost eight months while he attempted to rehabilitate his hand
Finally, Provenzano has made inconsistent statements concerning the extent of his disability, alternatively asserting to the SSA that he was unable to work as a result of his disability and now averring that he could have performed the essential functions of the position if given reasonable accommodations. Instead of attempting to reconcile the statement he made to the SSA with the assertions he makes in relation to his claims in this lawsuit, Provenzano ignores his prior position.
For these reasons, the motion for summary judgement against Provenzano's ADA claim is granted. Given that the PHRA is generally coextensive with the ADA, the motion as it pertains to the PHRA claim is also granted.
AND IT IS SO ORDERED.
Pennsylvania courts generally interpret the PHRA in accord with federal counterparts, including the ADA. See Salley v. Circuit City Stores, 160 F.3d 977, 979 n. 1.(3d Cir. 1998). Therefore, this Circuit has held that the PHRA may be treated as coextensive with the ADA. See Buskirk v. Apollo Metals, 307 F.3d 160, 166 n. 1 (finding that the PHRA and ADA are essentially the same and Pennsylvania courts generally interpret the PHRA in accord with its federal counterparts).