                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-27-2003

Deily v. Waste Mgmt Allentown
Precedential or Non-Precedential: Non-Precedential

Docket 01-2956




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"Deily v. Waste Mgmt Allentown" (2003). 2003 Decisions. Paper 859.
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                                                       NOT PRECEDENTIAL
           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                          ___________

                          No. 01-2956
                          ___________


                          KRIS DEILY,
                                  Appellant

                                v.

         WASTE MANAGEMENT OF ALLENTOWN

    _______________________________________________

          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
               D.C. Civil Action No. 00-cv-01100
                 (Honorable Lowell A. Reed, Jr.)
                     ___________________


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                      September 18, 2002

Before: BECKER, Chief Judge, SCIRICA and McKEE, Circuit Judges

                 (Filed   January 24, 2003      )

                     __________________

                  OPINION OF THE COURT
                    __________________
SCIRICA, Circuit Judge.

        Kris Deily appeals the District Court’s order granting summary judgment in favor of

Waste Management of Allentown (“Waste Management”), and its preceding order denying

Deily’s request to file an amended complaint under the Family and Medical Leave Act, 29

U.S.C. § 1001 et seq. (“FMLA”). For the following reasons we will affirm the order of the

District Court granting summary judgement on the appellant’s claims under the Americans

with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Employee Retirement

Income Security Act, 29 U.S.C. § 1001 et seq. (“ERISA”), and Pennsylvania law. We will

also affirm the order of the District Court denying Deily leave to amend his FMLA claim.

                                                   I.

        Appellant Kris Deily worked as a truck driver for Waste Management from 1988

until he was administratively terminated on December 15, 1997.1 Prior to termination,

Deily had not reported to work since June 25, 1996. On November 7, 1996, Waste

Management granted Deily’s request for 12 weeks of unpaid leave under the FMLA. At that

time Deily informed Waste Management that he was suffering from schizophrenia.




   1
     “Administrative termination” means that Deily was not terminated for cause and could
be considered for re-employment. Waste Management’s medical leave of absence policy
provides that an employee on medical leave of absence for more than 12 months will be
administratively terminated. In addition, the FMLA form that Deily filled out and signed
set forth, “I understand that if I do not return to work on the date indicated above ... my
employment can be terminated.” On December 15, 1997, pursuant to its medical leave of
absence policy, Waste Management informed Deily that the effective date of his
administrative termination was June 25, 1997.

                                                   2
Because of his schizophrenic condition, Deily remains incapable of returning to work for

Waste Management or any other employer.

        We have appellate jurisdiction under 28 U.S.C. § 1291. Our standard of review is

plenary. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir. 1999). A motion

for summary judgment is properly granted when the record reveals no genuine issue of

material fact, and the movant is entitled to judgment as a matter of law. Jones v. Sch. Dist.

of Philadelphia, 198 F.3d 403, 409 (3d Cir. 1999). We must consider the record in a

manner most favorable to Deily, and afford him the benefit of reasonable inferences. Id.

                                                   II.

        Under the ADA, Deily must establish that he is qualified to do his job, and if

accommodation is required, he must also show that an effective accommodation is

available that would enable him to do the job. See Walton v. Mental Health Ass’n of

Southeastern Pennsylvania, 168 F.3d 661, 670 (3d Cir. 1999). Because there is no

reasonable accommodation that would permit Deily to perform the essential functions of

his job at Waste Management, i.e., return to work, he is not a qualified person with a

disability as contemplated by the ADA. See Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580

(3d Cir. 1998) (stating that plaintiff under ADA must show he is “otherwise qualified to

perform the essential functions of the job”).2 Therefore, Waste Management was not


   2
    Deily cites the testimony of former supervisor, George Steckel, as direct evidence of
discriminatory discharge and hostile work environment under the ADA. USX contends that
Steckel’s testimony is inadmissable hearsay evidence. Whether or not it is inadmissible
                                                                                          (continued...)

                                                    3
obliged to participate in the interactive process of accommodation required by the ADA.

See Shapiro v. Township of Lakewood, 292 F.3d 356, 360 (3d Cir. 2002) (noting that

employee alleging failure to engage in good-faith “interactive process” must show he is

capable of performing essential functions of job with or without reasonable

accommodation). The order of the District Court granting summary judgment for Waste

Management on Deily’s ADA claim will be affirmed.

         To make out a prima facie case under § 510 of ERISA, 29 U.S.C. § 1140, Deily

must show “(1) prohibited employer conduct (2) taken for the purpose of interfering (3)

with the attainment of any right to which the employee may become entitled.” Hendricks v.

Edgewater Steel Co., 898 F.2d 385, 389 (3d Cir. 1990) (quoting Gavalik v. Continental

Can Co., 812 F.2d 834, 852 (3d Cir. 1987)). Waste Management terminated Deily

according to the express terms of its medical leave of absence policy and the FMLA

document in which Deily acknowledged Waste Management’s prerogative to fire him after

one year of absence from work. Thus, Waste Management did not terminate Deily with the

specific intent of interfering with the attainment of his pension benefits. See Gavalik, 812

F.2d at 852 (3d Cir. 1987) (plaintiff must establish specific intent of employer to interfere




   2
    (...continued)
hearsay, this evidence does not create a genuine issue of material fact because no
reasonable jury could conclude that Deily is a qualified person with a disability under the
ADA. Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986) (providing that summary
judgment is appropriate if no reasonable jury could return a verdict for nonmoving party).
Accordingly, Steckel’s testimony does not “require submission to a jury.” Id.

                                                     4
with attainment of pension benefits). The order of the District Court granting Waste

Management’s motion for summary judgment on Deily’s ERISA claim will be affirmed.

        Under Pennsylvania law, an at-will employee may not be discharged in retaliation for

filing a workers’ compensation claim. See Shick v. Shirley Lumber, 716 A.2d 1231, 1236-

1237 (Pa. 1998). Because the Pennsylvania Supreme Court has not yet set forth the

elements of a prima facie case of retaliatory discharge, the District Court applied the

analysis followed in claims of retaliatory discharge under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-3(a). Deily v. Waste Management of Allentown, No. CIV. A.

00-1100, 2000 WL 33358062, at *5-6 (E.D. Pa. 2000); see also Landmesser v. United

Air Lines, Inc., 102 F. Supp. 2d 273, 277-78 (E.D. Pa. 2000) (recognizing that the

Pennsylvania Supreme Court has not defined elements of prima facie case of retaliation);

Alderfer v. Nibco Inc., No. CIV. A. 98-6654, 1999 WL 956375, at *6 (E.D. Pa. 1999)

(recognizing that Pennsylvania courts “have not set forth a model of proof” with which to

evaluate Shick claims).

        We review the District Court’s prediction of state law under a plenary standard. See

Compagnie des Bauxites de Guinee v. Ins. Co. of N. Am., 724 F.2d 369, 371 (3d Cir.

1990). We may examine: (1) decisions of the Pennsylvania Supreme Court in related areas

of the law; (2) the “decisional law” of Pennsylvania intermediate courts; (3) federal appeals

and district court cases interpreting state law; and (4) decisions from other jurisdictions

regarding the same issue of law. Wiley v. State Farm Fire & Cas. Co., 995 F.2d 457, 459-

60 (3d Cir. 1993) (citation omitted). Pennsylvania courts already apply the Title VII test to

                                                     5
claims of retaliation under the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.

(“PHRA”). See Dici v. Commw. of Pa., 91 F.3d 542, 552 (3d Cir. 1996) (recognizing that

under Pennsylvania law, PHRA is generally applied in accordance with Title VII); Hoy v.

Angelone, 691 A.2d 476, 480 (Pa. Super. 1997), aff’d 720 A.2d 745 (Pa.1998) (providing

that Pennsylvania courts may look to federal decisions interpreting Title VII when

examining claims under PHRA). In addition, Title VII analysis has been followed by district

courts that have reviewed Shick claims in the past. See Landmesser, 102 F. Supp. 2d at

277-78; Sharkey v. Federal Exp. Corp., No. CIV. A. 98-CV-3351, 2000 WL 230330, at

*6 (E.D. Pa. 1999) (applying the “comparable framework” of Title VII to plaintiff’s

retaliation claim under Shick). See also Alderfer, 1999 WL 956375, at *6 (stating that

plaintiff “must at a minimum demonstrate that she engaged in protected activity under

Workers’ Compensation Act”) (emphasis added). For these reasons, we endorse the

District Court’s application of the Title VII framework to Deily’s retaliatory discharge

claim under Pennsylvania law.

        To establish a prima facie case of retaliatory discharge under Title VII, Deily must

show that: “(1) the employee engaged in a protected activity; (2) the employer took an

adverse employment action after or contemporaneous with the employee’s protected

activity; and (3) a causal link exists between the employee’s protected activity and the

employer’s adverse action.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d

Cir. 2000) (citations omitted). Deily claims that he was discharged in retaliation for a

worker’s compensation claim that he filed in 1994 because of a work related hernia. But

                                                     6
Deily worked for two years without incident until he suddenly stopped reporting to his job

on June 25, 1996. Thus, we are unable to infer a causal link between Deily’s 1994 workers’

compensation claim and his administrative termination on December 15, 1997. The order

dismissing Deily’s claim of retaliatory discharge under Pennsylvania law will be affirmed.

        Finally, Deily asserts that he should have been granted leave to amend his claim for

retaliation under the FMLA pursuant to Federal Rule of Civil Procedure 15(a). We review

the District Court’s judgment for abuse of discretion. See Walton, 168 F.3d at 665. A

district court may deny leave to amend a complaint when amendment would be futile. Id.

In this case, it is not possible for Deily to fashion a successful FMLA claim from the facts

in the record. According to his complaint, Deily took FMLA leave in June 1996 and did

not contact Waste Management again for 18 months. The District Court noted that Deily

“terminated himself by abusing his rights under FMLA . . . .” Deily v. Waste Management

of Allentown, No. CIV. A. 00-1100, 2000 WL 1858717, at *2 (E.D. Pa. 2000). We agree

and will affirm the District Court’s order denying Deily’s motion to amend his FMLA

retaliation claim.

                                                   III.

        In conclusion, Deily is neither a qualified person with a disability under the ADA nor

a victim of discriminatory discharge. Accordingly, the judgment of the District Court will

be affirmed.




                                                     7
TO THE CLERK:

          Please file the foregoing opinion.




                                                   Circuit Judge

DATED:




                                               8
