                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2008

Hershgordon v. Pathmark Stores Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2731




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                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-2731


                              ROBERT HERSHGORDON,

                                                 Appellant

                                            v.

                              PATHMARK STORES, INC.


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civil No. 06-cv-01234)
                        District Judge: Hon. Timothy J. Savage


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 6, 2008

            BEFORE: AMBRO, CHAGARES and COWEN , Circuit Judges

                                   (Filed: July 7, 2008)


                                        OPINION


COWEN, Circuit Judge.

       Robert Hershgordon appeals from the District Court’s grant of summary judgment

in favor of Pathmark Stores, Inc. (“Pathmark”). Hershgordon asserted that Pathmark

discriminated against him based on his disability when it did not allow him to return to
work following back surgery. We will affirm.

                                              I.

       Hershgordon began working for Pathmark in April 2002 as a shift supervisor. In

July 2002, Hershgordon injured his back while on the job. After this injury, Hershgordon

continued to work at Pathmark without restrictions. In September 2002, Hershgordon

was promoted to night store manager.

       Hershgordon underwent back surgery in August 2003. He was out of work from

August 2003 until October 2003. Hershgordon was subject to certain doctor’s restrictions

upon his return to work.

       In January 2004, Hershgordon underwent a second back surgery. He was unable

to return to work for eight months. In September 2004, his doctor cleared him to return to

work with certain restrictions. Pathmark determined that he could not return to work with

the restrictions as given, and denied his request to return to work.

       Subsequently, a Pathmark official suggested to Hershgordon that he submit a

request for a reasonable accommodation. On November 2, 2004, Hershgordon submitted

a request for a reasonable accommodation along with a physical capabilities evaluation

filled out by his doctor. Hershgordon specifically requested that he return to the night

manager position, or that he be promoted to a trainee for assistant store manager or

general store manager. On November 11, 2004, Pathmark’s American With Disabilities

(“ADA”) committee denied Hershgordon’s request for a reasonable accommodation. In



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denying the request, the committee noted that it carefully considered the doctor’s

mandated restrictions as they related to Hershgordon’s night manager position. The

committee concluded that the work activity restrictions were such that any reasonable

accommodation would be insufficient to allow Hershgordon to function as a non-union

associate.

       On November 21, 2004, Hershgordon submitted a second request for a reasonable

accommodation along with a physical capabilities form filed out by his doctor that was

less restrictive than the November 2 submission. Pathmark’s ADA committee rejected

this second request. Specifically, the committee noted that while the new restrictions

illustrated Hershgordon’s improvement, the reasonable accommodations that could be

provided would be insufficient for Hershgordon to function as a non-union associate.

       In January 2005, Pathmark’s ADA committee reopened Hershgordon’s case based

on an independent medical examination. While the committee noted Hershgordon’s

continued improvement, it once again found that any reasonable accommodation that

Pathmark might provide would be insufficient to enable Hershgordon to function as a

non-union associate.

       In March 2006, Hershgordon filed his complaint in the District Court.

Hershgordon alleged that Pathmark violated the ADA when it refused to reinstate him to

the night store manager position. After the close of discovery, the District Court granted

summary judgment in favor of Pathmark. It determined that Hershgordon failed to



                                             3
establish his prima facie case because Pathmark did not regard him as disabled.

Hershgordon timely filed a notice of appeal.

                                              II.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review over a District Court’s order granting summary judgment. See Lexington Ins. Co.

v. W. Pa. Hosp., 423 F.3d 318, 322 n.2 (3d Cir. 2005).

                                              III.

       The ADA prohibits discrimination against a qualified individual with a disability

because of the disability of such individual. See 42 U.S.C. § 12112(a). To make out a

prima facie case of discrimination under the ADA, a person must establish that he (1) has

a disability; (2) is a qualified individual; and (3) has suffered an adverse employment

action because of that disability. See Turner v. Hershey Chocolate, U.S., 440 F.3d 604,

611 (3d Cir. 2006) (citations omitted). “The term ‘disability’ means, with respect to an

individual - (A) a physical or mental impairment that substantially limits one of the major

life activities of such individual; (B) a record of such an impairment; or (C) being

regarded as having such an impairment.” 42 U.S.C. § 12102(2). In this case,

Hershgordon asserted that Pathmark regarded him as having a disability pursuant to prong

(C) of the ADA’s disability definition. A person is “regarded as” having a disability if he:

              (1) Has a physical or mental impairment that does not
              substantially limit major life activities but is treated by the
              covered entity as constituting such limitation;
              (2) Has a physical or mental impairment that substantially

                                               4
               limits major life activities only as a result of the attitudes of
               others toward such impairment; or
               (3) Has [no such impairment] but is treated by a covered
               entity as having a substantially limiting impairment.

Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187 (3d Cir. 1999). To prevail under the

“regarded as” prong, the plaintiff must establish that the employer believed that he was

limited in his ability to work in “either a class of jobs or a broad range of jobs in various

classes as compared to the average person having comparable training, skills, and

abilities.” See Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999). Stated

differently, “to be regarded as substantially limited in the major life activity of working,

one must be regarded as precluded from more than a particular job.” Murphy v. United

Parcel Serv., Inc., 527 U.S. 516, 523 (1999); see also Taylor, 177 F.3d at 192 (“An

employer who simply, and erroneously, believes that a person is incapable of performing

a particular job will not be liable under the ADA. Liability attaches only to a mistake that

causes the employer to perceive the employee as disabled within the meaning of the

ADA, i.e., a mistake that leads the employer to think that the employee is substantially

limited in a major life activity.”).

       In this case, the record indicated that Pathmark only considered Hershgordon to be

temporarily incapable of performing his job of night store manager. This is not enough to

make Pathmark liable under the ADA. Summary judgment was proper because Pathmark

only regarded Hershgordon’s injury as temporary. See Rinehimer v. Cemcolift, Inc., 292

F.3d 375, 380 (3d Cir. 2002) (noting that temporary non-chronic impairment of short

                                                5
duration is not a disability covered by the ADA); see also Pollard v. High’s of Balt., Inc.,

281 F.3d 462, 471 n.5 (4th Cir. 2002) (noting that the employer did not regard employee

as disabled where the decision not to allow employee to return to work “was not done

based on a faulty perception that she would never return to that position”). Indeed,

Hershgordon’s own doctor told Pathmark’s ADA committee that Hershgordon’s

prognosis was “good.” Furthermore, an employer only regards a person as disabled if it

determines that the person cannot perform a wide range of jobs. See Taylor, 177 F.3d at

192; see also Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996) (“the mere fact that

an employer is aware of an employee’s impairment is insufficient to demonstrate either

that the employer regarded the employee as disabled or that that perception caused the

adverse employment action”). Hershgordon relies heavily on Taylor in his appellate

brief. However, this case is unlike Taylor. In Taylor, the employer determined that the

plaintiff was unable to perform any job in the supermarket. See 177 F.3d at 188.

                                             IV.

       The District Court properly entered summary judgment in favor of Pathmark.

Appellant’s uncontested motion to strike a portion of his appellate brief is granted. We

will affirm.




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