                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-17-2007

Benko v. Portage Area Sch
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3457




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-3457
                                    ____________

                             JOHN CAMERON BENKO,

                                          Appellant

                                           v.

                       PORTAGE AREA SCHOOL DISTRICT
                                ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (D.C. No. 03-cv-00233J)
                      District Judge: Honorable Kim R. Gibson
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 18, 2007

      Before: FISHER and ROTH, Circuit Judges, and RAMBO,* District Judge.

                                 (Filed: July 17, 2007)
                                     ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Sylvia H. Rambo, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
RAMBO, District Judge.

       John Cameron Benko appeals the District Court’s grant of summary judgment in

favor of Portage Area School District and against Benko. Benko argues that he set forth a

prima facie case of disability discrimination in connection with Portage’s refusal to

provide certain retirement benefits. Benko further argues that he established a genuine

issue of material fact that precludes summary judgment. For the reasons that follow, we

disagree and will affirm.

                                              I.

       Because we write primarily for the parties who are familiar with the factual and

legal background to this case, we will dispense with a lengthy recitation of the facts. At

the outset, we note that in the District Court, Benko failed to file a response to the

statement of material facts filed by Portage in accordance with the District Court’s Local

Rule of Court 56.1(B)(1). The District Court deemed Portage’s statement of material

facts to be admitted, pursuant to its Local Rule of Court 56.1(E), excluding only

statements that it considered to be proposed conclusions of law. Such local rules are

permissible so long as district courts do not use them to bypass the merits analysis

required by Federal Rule of Civil Procedure 56. Anchorage Assocs. v. V.I. Bd. of Tax

Review, 922 F.2d 168, 175 (3d Cir. 1990). Since the District Court conducted a merits

analysis, we will not disturb its decision to adopt Portage’s statement of facts.

       At the end of the 1996-1997 school year, Benko voluntarily retired after teaching

at Portage for thirty-three (33) years. The Collective Bargaining Agreement that Benko

                                              2
was subject to at the time of his retirement did not include an early retirement incentive.

Before he retired, Benko sent a written request for a retirement incentive to the Portage

School Board. Benko never received a response to this request, but asserts that

Superintendent, Jerome Yetsko, verbally promised such an incentive or continuation of

benefits, although the record provides no support for this assertion.

       Prior to his retirement, Benko took a sabbatical for the 1994-1995 school year. His

family physician, Dr. John Karduck, indicated that the sabbatical would be beneficial for

“medical reasons” related to treatment for chest pain and degenerative lumbar disc

disease. When Benko returned from the sabbatical in the beginning of the 1995 school

year, he returned to the same position and schedule as before the sabbatical – he was the

head of the Science Department and worked one half day teaching science to elementary

students and one half day teaching high school students. Benko neither requested nor

required any accommodations in connection with his physical condition. Although

Benko stated at his deposition that his heart and back problems “slowed him down,” he

admitted that he could still perform his job functions.

       Benko has also admitted that he does not currently receive treatment from a

cardiac specialist, and does not receive regular treatment from any doctor for a heart or

back condition. Similarly, none of the proffered medical records indicate ongoing

treatment for these conditions.




                                              3
       Finally, Benko testified that he has a farm that serves as one of his current sources

of income. The farm’s crops include hay, oats, corn, honey, and apples. Benko works on

the farm alone, without assistance.

       None of the exhibits, affidavits, or depositions provided by Benko contradict any

of the foregoing facts.

       On October 6, 1997, Benko filed a claim with the Pennsylvania Human Rights

Commission (“PHRC”), alleging age and disability discrimination. The claim was dually

filed with the United States Equal Employment Opportunity Commission (“EEOC”). The

EEOC forwarded Benko’s request for a Notice of Right-to-Sue regarding the disability

claim to the United States Department of Justice. On June 26, 2003, the PHRC dismissed

Benko’s complaint.

       On October 17, 2003, Benko filed suit in the United States District Court for the

Western District of Pennsylvania, asserting age discrimination pursuant to the Age

Discrimination and Employment Act (“ADEA”) and disability discrimination pursuant to

the Americans with Disabilities Act (“ADA”). Portage filed a motion to dismiss, and the

District Court dismissed Benko’s age discrimination claim. On June 18, 2006, the

District Court granted Portage’s motion for summary judgment on Benko’s disability

discrimination claim.

       This timely appeal challenging the order granting Portage’s motion for summary

judgment on Benko’s ADA claim followed.

                                             II.

                                             4
       We have jurisdiction pursuant to 28 U.S.C. § 1291 to hear this appeal from the

final order of the District Court entering summary judgment for Portage. Our standard of

review is plenary. IFC Interconsult, AG v. Safeguard Int’l Partners, LLC, 438 F.3d 298,

317 (3d Cir. 2006). Summary judgment is proper only if there are no genuine issues of

material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the District

Court’s grant of summary judgment, we view the facts in a light most favorable to the

non-moving party, Benko. IFC Interconsult, 438 F.3d at 317.

                                            III.

       The ADA prohibits discrimination “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).

Under the McDonnell Douglas burden shifting analysis,1 to establish a prima facie case of

disability discrimination under the ADA, the plaintiff must show: “(1) he is a disabled



       1
        McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Olson v. Gen.
Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996) (The McDonnell Douglas analytical
framework applies to ADA claims.). McDonnell Douglas applies to the pretext theory of
discrimination. 411 U.S. at 804; Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Both the District Court’s decision and Portage’s brief discuss the mixed
motive theory of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) and the effect of
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) on the mixed motive theory. Because
Benko’s brief asserts arguments solely under McDonnell Douglas, we will not address
issues relating to the mixed motive theory.

                                             5
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.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).

       Our first inquiry, therefore, is whether Benko is disabled within the context of the

ADA. The ADA defines disability as “(A) a physical or mental impairment that

substantially limits one or more of the major life activities of [an] individual; (B) a record

of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.

§ 12102(2); 29 C.F.R. § 1630.2(g). Each of these elements depends in some respect upon

the meaning of “substantially limits.”

       The parties agree that the EEOC regulations provide guidance in this regard. The

regulations define “substantially limits” as “[u]nable to perform a major life activity that

the average person in the general population can perform”; or “[s]ignificantly restricted as

to the condition, manner, or duration under which an individual can perform a particular

major life activity as compared to the condition, manner, or duration under which the

average person in the general population can perform that same major life activity.” 29

C.F.R. § 1630.2(j)(1). The EEOC regulations further provide that the nature and severity,

and duration or expected duration, of the impairment, as well as the permanent or long

term impact, or the expected permanent or long term impact of or resulting from the

impairment, are relevant factors to this inquiry. Id. § 1630.2(j)(2). Finally, the

regulations identify the following as major life activities: “functions such as caring for

                                              6
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning,

and working.” Id. § 1630.2(i).

       Viewing the facts in the light most favorable to Benko, IFC Interconsult, 438 F.3d

at 317, Benko has adduced sufficient evidence regarding problems connected with his

heart and back to demonstrate an impairment. However, Benko fails to demonstrate a

“substantially limiting” impairment. Benko asserts that he is substantially limited in

bending, stooping, walking long distances, and other similarly taxing activities. During

his deposition, Benko described himself as unable to perform “normal activities” as he

had prior to experiencing heart and back problems. He further stated that the conditions

“just slowed [him] down” when working outside on activities involving orchards, garden

trails, and building a greenhouse. He also indicated that he had sought treatment for chest

pain from Dr. Chauncey Smith at Loma Linda Hospital in California; Benko’s brief

characterizes this as treatment “on the national level” and an indication of the severity of

his limitation. Benko also testified that he underwent physical therapy for his back in

1992 or 1993, although he could not recall specifics such as the facility or physician

name, or the underlying cause of the problems prompting him to seek such treatment.

Aside from Benko’s deposition testimony and interrogatory responses, there are no

medical records or other evidence in the record that provide any additional detail

regarding such treatment.

       Finally, two letters from Benko’s family physician, Dr. Karduck, discuss his

symptoms before and after the 1994-1995 sabbatical. In a June 8, 1994 letter, Dr.

                                              7
Karduck recommended that Benko take a sabbatical for “medical reasons” and indicated

that Benko was being treated for chest pain and degenerative lumbar disc disease. In a

September 15, 1997 letter, Dr. Karduck stated that Benko had suffered from “intermittent

chest pain” with “no definable cause.” Dr. Karduck opined that “much of [Benko’s] pain

is related to stress and a reaction to the stress.”

       This evidence fails to provide a sufficient basis for finding that Benko has an

impairment that substantially limits a major life activity. “‘[S]ubstantially’ in the phrase

‘substantially limits’ suggests ‘considerable’ or ‘to a large degree.’” Toyota Motor Mfg.,

Ky., Inc. v. Williams, 534 U.S. 184, 196 (2002). Moreover, “to be substantially limited in

performing manual tasks, an individual must have an impairment that prevents or severely

restricts the individual from doing activities that are of central importance to most

people’s daily lives.” Id. at 197.

       In Toyota, the Supreme Court held that changes such as “avoiding sweeping,

[quitting] dancing, and [reducing time spent playing with children], garden[ing], and

driv[ing] long distances. . . . did not amount to such severe restrictions in the activities

that are of central importance to most people’s lives that they establish[ed] a manual task

disability as a matter of law.” Id. at 202. Benko’s asserted limitations – being “slowed

down” and not being able to perform exactly as he had in the past with respect to bending,

stooping, walking long distances, and other similarly taxing activities – likewise fail to

rise to the level of a severe restriction. Moreover, the evidence that Benko returned to



                                                8
work without accommodation and continues to work on his farm and raise various crops

does not support a finding that Benko is substantially limited.

       The evidence relating to Benko’s medical treatment similarly fails to demonstrate a

substantial limitation. At most, Dr. Karduck’s letters merely provide a medical diagnosis,

which is insufficient. Id. at 198. Individuals must “prove a disability by offering

evidence that the extent of the limitation [caused by their impairment] in terms of their

own experience . . . is substantial.” Id. (internal quotation omitted). The fact that Benko

visited Dr. Smith, without any additional detail, similarly fails to provide any information

as to the extent of Benko’s condition. The fact that Benko chose to travel some distance

to see a particular physician neither demonstrates any specifics about his condition, nor

indicates what that doctor’s assessment of his condition might have been. In sum, Benko

fails to demonstrate that he has a substantially limiting impairment within the meaning of

the ADA.

       The evidence here also fails to establish a record of a substantially limiting

impairment. “A plaintiff attempting to prove the existence of a ‘record’ of a disability

still must demonstrate that the recorded impairment is a ‘disability’ within the meaning of

the ADA.” Tice v. Centre Area Transp. Auth., 247 F.3d 506, 513 (3d Cir. 2001). Again,

Benko has presented evidence only that he was unable to perform certain activities

exactly as he had previously. There is no evidence, medical or otherwise, regarding the

extent of the impairment. Accordingly, Benko has not demonstrated the existence of a

record of disability.

                                              9
       Finally, Benko has not demonstrated that Portage regarded him as having a

substantially limiting impairment. To satisfy the “regarded as” provision of the ADA’s

disability definition, a plaintiff must demonstrate that the employer either “mistakenly

believes that a person has a physical impairment that substantially limits one or more

major life activities,” or “that an actual, nonlimiting impairment substantially limits one

or more major life activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999).

Thus, “a physical impairment, standing alone, is not necessarily a disability as

contemplated by the ADA.” Kelly v. Drexel Univ., 94 F.3d 102, 108 (3d Cir. 1996)

(internal quotation omitted). Moreover, “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 the perception caused the adverse employment action.”

Id. at 109.

       Contrary to what Benko argues, neither Portage’s willingness to grant Benko a

sabbatical for health reasons nor its response to the State Farm Insurance Company’s

request for information in connection with Benko’s independent disability claim establish

anything more than Portage’s awareness of Benko’s impairment. Neither act conveys

Portage’s assessment or perception of Benko’s condition. Moreover, Benko returned

from the sabbatical and resumed his prior position without accommodation or restriction.

Portage’s conduct with respect to the sabbatical and claim request fail to demonstrate that

Portage considered Benko’s impairment to be substantially limiting.



                                             10
       In addition, Benko’s allegation of “unfair and disparate treatment,” presumably

based on the summary of Portage’s provision of retirement incentives from 1986 to 1997,

is insufficient to demonstrate that Portage regarded Benko as disabled. No Collective

Bargaining Agreement that was in place prior to or at the time of Benko’s retirement

contained any promise of retirement incentives; rather, the School Board independently

determined whether such benefits would be extended to retirees in a given year, based on

relevant financial considerations. None of the teachers who retired at the same time as

Benko received a retirement incentive, nor were retirement incentives provided to all of

the teachers who retired in previous years.2 Benko’s written request to the School Board

for a “retirement package including continued hospitalization coverage,” to which the

School Board provided no response, does not alter this finding. If anything, it provides a

further basis to conclude that the availability of retirement incentives depended upon a

School Board vote, not on a Collective Bargaining Agreement. None of this evidence

provides any insight into Portage’s reasons for declining to offer a retirement incentive to

Benko, nor does it establish that Portage regarded Benko as disabled.

       Because Benko fails to demonstrate that he has an impairment that substantially

limits a major life activity, a record of such an impairment, or that Portage regarded him

as having such an impairment, he is not disabled for purposes of the ADA. 42 U.S.C.

§ 12102(2) ; 29 C.F.R. § 1630.2(g). Thus, Benko fails to establish a prima facie case of


       2
        The record evidence provides no basis for assessing the health or physical status
of the other retirees.

                                             11
disability discrimination under the ADA. We do not need to consider the remaining steps

of the McDonnell Douglas analysis.

       In conclusion, we find that the District Court properly granted summary judgment

for Portage because Benko is not disabled as defined by the ADA.3 Therefore, we will

affirm the order of the District Court.




       3
        We also find that the District Court properly adopted Portage’s statement of
material facts, which were not contradicted by any evidence in the record; thus, no
dispute of material fact exists.

                                            12
