                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-2005

Serbin v. Consolidated Rail
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3964




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 04-3964
                                    ____________

                                 JOHN M. SERBIN,

                                           Appellant

                                          v.

                      CONSOLIDATED RAIL CORPORATION
                               a/k/a CONRAIL
                                ____________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                               (D.C. No. 03-cv-06957)
                     District Judge: Honorable John P. Fullam
                                   ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 30, 2005

              Before: *NYGAARD, SMITH and FISHER, Circuit Judges.

                               (Filed July 12, 2005 )
                                   ____________
                             OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Appellant John M. Serbin brought this action against his former employer, alleging




*Honorable Richard L. Nygaard assumed senior status on July 9, 2005.
that Consolidated Rail Corporation (“Conrail”) violated the Americans with Disabilities

Act (“ADA”) and the Rehabilitation Act of 1973 (“Rehabilitation Act”) when it attempted

to “force-promote” him from a trainman position to engineer and later terminated his

employment. The United States District Court for the Eastern District of Pennsylvania

granted summary judgment to Conrail. We will affirm, focusing principally on the

rationale for our decision.

                                             I.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review of the grant of summary judgment, employing the same standard as the

district court – i.e., summary judgment is appropriate where the record shows no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.

Glanzman v. Metropolitan Management Corp., 391 F.3d 506, 508 n.1 (3d Cir. 2004).1


       1
        The order on appeal was entered upon consideration of Conrail’s “motion to
dismiss, or in the alternative, for summary judgment.” Appellant thus knew that the
motion could be treated as one for summary judgment and indeed, he submitted materials
beyond the complaint, including his own affidavit. See Hilfirty v. Shipman, 91 F.3d 573
(3d Cir. 1996) (where motions to dismiss framed in the alternative for summary
judgement, plaintiff was on notice of conversion). Appellant was thus appropriately held
to the more demanding evidentiary standard required to avoid summary judgment rather
than to the standard for dismissal of a complaint. See id. at 579 (“[w]here a party has
filed a motion for summary judgment, the opposing party is under an obligation to
respond to that motion in a timely fashion and to place before the court all materials it
wishes to have considered when the court rules on the motion.”) (internal citation
omitted). To the extent Appellant now complains that summary judgment was premature
in the absence of an answer or discovery, we note he did not invoke Fed.R.Civ.P. 56(f)
before the District Court. See Bradley v. United States, 299 F.3d 197, 207 (3d Cir. 2002)
(“We have made clear that, in all but the most exceptional cases, failure to comply with

                                             2
       To establish a prima facie case of discrimination under the ADA, a plaintiff must

show: “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise

qualified to perform the essential functions of the job, with or without reasonable

accommodations by the employer; and (3) he has suffered an otherwise adverse

employment decision as a result of discrimination.” Williams v. Philadelphia Housing

Auth. Police Dept., 380 F.3d 751, 761 (3d Cir. 2004) (internal citation omitted); see also

Donahue v. Consolidated Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000) (elements for

prima facie showing under the Rehabilitation Act). Under the burden-shifting paradigm

of McDonnell Douglas, once a plaintiff in an action under either Act makes out a prima

facie case, the burden shifts to the defendant to articulate some legitimate,

nondiscriminatory reason for the action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.

1994); see also Newman v. GHS Osteopathic, Inc., 60 F.3d 153 (3d Cir. 1995)

(McDonnell Douglas framework applicable to claims under Rehabilitation Act). If a

defendant satisfies this burden, a plaintiff may defeat a motion for summary judgment by

providing evidence that would allow a fact finder reasonably to (1) disbelieve the

employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not the motivating or determinative cause of the employer's




Rule 56(f) is fatal to a claim of insufficient discovery on appeal.”). There are no such
exceptional circumstances here.

                                              3
action. Sarullo v. United States Postal Service, 352 F.3d 789, 800 (3d Cir. 2003). The

ultimate burden of persuasion remains at all times with the plaintiff.

                                             II.

       The record shows that when Appellant was first hired by Conrail in late 2000 as a

trainman, he disclosed, and a medical examination confirmed, 100% hearing loss in his

left ear. When Conrail “force-promoted” him to the position of engineer in May 2002 as

permitted under the applicable collective bargaining agreement, Appellant was required

to fill out a medical questionnaire in connection with that transfer. In response to the

question labeled: “History: Have you ever had or do you now have any of the

following?” he checked “Yes” not only for hearing loss, but also for a wide range of other

impairments, including epilepsy, seizures or fits, loss of consciousness, dizziness or

fainting spells, and sleep disorder. A. 52. On that same day, Appellant was examined by

two physicians – Dr. Tumasz (his family physician) and Dr. Kirkpatrick (at Conrail’s

request) – both of whom deferred to further evaluation by Conrail’s medical director.

A. 76-77; 81-82. Dr. Kirkpatrick specified: “Patient does not pass physical for engineer

pending evaluation by Conrail medical director.” A. 76. Conrail determined that the

additional ailments identified by Appellant on the questionnaire were serious medical

conditions that would preclude him from performing the essential functions of either the

trainman or engineer positions. A. 51 (Decl. of Sandra Compo (Conrail

Director/Assistant Secretary Compliance)). Accordingly, in June 2002, Conrail placed



                                              4
Appellant on medical leave and asked him to provide additional information to

substantiate that he did not suffer from these additional ailments. In December 2002,

Appellant submitted a brief letter from Dr. Tumasz documenting that he had not been

diagnosed with these additional ailments. A. 83. In March 2003, Appellant’s

employment was terminated, allegedly because he was “absent without satisfactory

written proof of an authorized leave of absence.” A. 20-21 (Complaint). Ms. Compo

declared that “[a]t no time did [Appellant] provide Conrail’s Medical Department with

information reflecting that his listed medical conditions had been fully evaluated,

appropriately treated, currently stable, under control or resolved. ... Accordingly, after

five months without adequate medical documentation regarding his medical conditions or

their accommodation, Conrail terminated [Appellant’s] seniority as permitted by [the

collective bargaining agreement].” A. 51 (Compo Decl.).

       Appellant contends that Conrail discriminated against him on the basis of his

hearing loss, which he believed rendered him unqualified for the engineer position.

Conrail countered that this discrimination action was preempted by the mandatory

arbitration provisions of the Railway Labor Act, and that Appellant has been terminated

because he never adequately explained away the additional ailments identified on the

questionnaire. The District Court first ruled that the action was not preempted, Mem. Op.

at 2-4, and then granted summary judgment to Conrail, on the ground that Appellant had




                                              5
failed to establish a prima facie case under either Act.2 Id. at 5-6. In the body of its

opinion, the District Court speculated that there were two explanations for Appellant’s

identification of the additional ailments on the questionnaire – he actually suffered from

them or had purposefully misrepresented them to avoid the transfer. Id. at 6. The District

Court then concluded: “In either case, the actions taken by Conrail could not reasonably

be found to violate plaintiff’s rights under [either Act].” Id.

       We agree with Appellant that, at least in theory, there could be more than two

explanations for why he identified the additional ailments on the questionnaire. As his

attorney suggested during oral argument before the District Court, Appellant may have

simply taken a confusing form too literally. The case, however, was before the District

Court on a motion for summary judgment; Appellant thus had an obligation to do more

than simply speculate as to other possible explanations for his behavior. Notably, his

affidavit did not seek to explain why he had identified the additional ailments – a critical

omission in light of Conrail’s articulation of a legitimate, non-discriminatory reason for

the termination. See infra. Thus, it was not improper for the District Court on this record

to limit the inferences from the evidence to two, both of which would prevent Appellant




       2
        Conrail invites us to find this action preempted as a separate and independent
basis for affirming the order below. What Conrail actually argues, however, is that the
District Court erred in its resolution of preemption. We will not review this issue in the
absence of a cross-appeal.

                                              6
from showing he was “qualified” for either position as required by the second prong of

the prima facie case.3

       We further conclude that, assuming a prima facie showing by Appellant, Conrail

has proffered a legitimate, nondiscriminatory reason for its actions and Appellant has

failed to offer sufficient evidence from which a jury could find that reason pretextual. To

survive summary judgment, a plaintiff must set forth evidence to allow a fact finder

reasonably to (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe

that an invidious discriminatory reason was more likely than not the motivating or

determinative cause of the employer's action. Sarullo, 352 F.3d at 799-800. A plaintiff

can meet this burden by showing that the employer’s proffered reason was “weak,

incoherent, implausible, or so inconsistent that ‘a reasonable factfinder could rationally

find [it] unworthy of credence.’” See id. at 800 (quoting Keller v. Orix Credit Alliance,

Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997)). Appellant has not met this burden. Again,

his affidavit does not explain why he identified the additional ailments, nor does he offer


       3
        We recognize the existence of a question on the record whether Appellant was
qualified for the engineer position due to his hearing loss. Appellant believed at all times
that he was unqualified; Conrail, citing 49 C.F.R. §§ 240.121, 240.207 and Appendix F to
Section 240, contends he was not. The District Court, in setting forth the facts, stated that
Appellant “did not, in fact, meet the physical requirements for an engineer position,
because of his hearing loss,” Mem. Op. at 2, but Conrail maintains this is erroneous. Our
disposition renders this question irrelevant. Additionally, there is some question whether
Conrail could provide the relief Appellant seeks – i.e., reinstatement to the trainman
position – without violating the collective bargaining agreement, which Conrail interprets
to prevent a trainman force-promoted to engineer from returning to the trainman position.
Our disposition renders this question irrelevant also.

                                             7
any other evidence to dispute Conrail’s recitation that it sought additional information

from him and terminated his employment when a satisfactory explanation was not

forthcoming. At best, Appellant faults Conrail for not following up on the examining

physicians’ deferral to examination by Conrail’s medical director. Conrail’s conduct in

this regard, however, is not necessarily surprising as it appears to have rightfully placed

the onus of explanation on Appellant; regardless, we will not say that Conrail’s conduct

casts sufficient doubt on the credibility of Conrail’s non-discriminatory reason for its

actions so as to preclude summary judgment.

       Accordingly, we will affirm the order entering summary judgment for Conrail.




                                              8
