                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-27-2009

Louis Toscano v. Warren Cty Dept Huma
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3993




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BLD-134                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-3993
                                     ___________

                              LOUIS PAUL TOSCANO,
                                              Appellant

                                           v.

           WARREN COUNTY DEPARTMENT OF HUMAN SERVICES,
             DIVISION OF TEMPORARY ASSISTANCE/SOCIAL
                 ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                (D.C. Civil No. 07-1226)
                     District Judge: Honorable Anne E. Thompson
                     ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   March 19, 2009

              Before: McKEE, FISHER and CHAGARES, Circuit Judges

                                (Filed: April 27, 2009)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Louis Paul Toscano appeals pro se from an order of the United States District

Court for the District of New Jersey granting defendant’s motion for summary judgment.
On February 23, 2007, Toscano filed a complaint in the Superior Court of New Jersey,

alleging that the “Warren County Department of Human Services, Division of Temporary

Assistance/Social” (“Warren County”) had failed to hire him based on discrimination in

violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. On

March 14, 2007, Warren County removed the complaint to federal court. On July 7,

2008, Warren County gave notice of its intention to file a motion for summary judgment,

and subsequently filed such a motion. Toscano filed an opposition, without any exhibits

in support. The District Court granted defendant’s motion, and Toscano timely appealed.

       On appeal, Toscano seeks to proceed in forma pauperis. We have reviewed his

motion and financial affidavit, and we grant his motion. 28 U.S.C. § 1915(a)(1); see

Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989). Nonetheless,

we will summarily affirm because this appeal presents no substantial question.

       We have jurisdiction under 28 U.S.C. § 1291. We review a District Court’s order

granting summary judgment de novo. Doe v. Abington Friends Sch., 480 F.3d 252, 256

(3d Cir. 2007). Summary judgment is proper only if it appears “that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). Once the moving party demonstrates the absence of a

genuine material factual dispute, to survive summary judgment, the non-moving party

must proffer “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.

P. 56(e). A plaintiff opposing a motion for summary judgment may not rest on the mere



                                              2
allegations of his complaint; instead, he or she must proffer “specific facts” by affidavit

or other evidence. Id.; see Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007).

       Toscano asserts that he applied for a job with the defendant on or about April 5,

2006. When he arrived for a job interview, defendant’s employees swarmed him with

questions about whether he needed help with the stairs or needed someone to ride the

elevator with him. Two weeks later, he received a rejection letter. Toscano asserts that

the defendant discriminated against him based on his unspecified disability or the

perception of him as disabled.

       Defendant moved for summary judgment on several grounds, including Toscano’s

purported failure to demonstrate a prima facie case of discrimination under the ADA. To

make out a prima facie case of discrimination under the ADA, Toscano was required to

establish that he “(1) has a ‘disability,’ (2) is a ‘qualified individual,’ and (3) has suffered

an adverse employment action because of that disability.” Turner v. Hershey Chocolate

U.S., 440 F.3d 604, 611 (3d Cir. 2006). The ADA defines “disability” with respect to an

individual as “(A) a physical or mental impairment that substantially limits one or more

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

regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1). The District Court

concluded that Toscano had not come forward with evidence from which a jury could

determine he is disabled. We agree.




                                               3
       Toscano failed to submit any facts in any acceptable form, such as by affidavit or

other evidence.1 He has not attempted to demonstrate through proper evidence that he has

any impairments that limit one or more major life activities, that he has a record of

impairment under the ADA or that he is “regarded as” having such an impairment.

Although Toscano relies on his receipt of Social Security Disability Insurance (SSDI)

benefits as a “record” of his disability, the definition of “disabled” for SSDI eligibility

purposes and the definition under the ADA are not identical, and eligibility for SSDI does

not necessarily mean that the same person is disabled under the ADA. Cleveland v.

Policy Mgmt. Sys. Corp., 526 U.S. 795, 804 (1999); Tice v. Centre Area Transp. Auth.,

247 F.3d 506, 513 n.5 (3d Cir. 2001). Toscano’s allegation that others perceived him to

be disabled because they inquired if he needed assistance in climbing the stairs also does

not constitute evidence that he was regarded as disabled under the ADA.

       In sum, because Toscano failed to adduce any evidence from which a reasonable

juror could find in his favor, he has failed to satisfy his burden at the summary judgment

stage. We will affirm the order of the District Court.2



       1
        Nor did he contend that discovery was incomplete or file a motion under Fed. R.
Civ. P. 56(f).
       2
        Toscano contends that the District Court “lost” several documents on January 31,
2008. As the submission of these documents predated defendant’s motion for summary
judgment by six months, and Toscano does not specify the nature of these documents or
suggest that they contained evidence that would aid his opposition to summary judgment,
we cannot conclude that “lost” documents would have affected our disposition of this
matter.

                                              4
