                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-17-1995

Newman v GHS Osteopathic
Precedential or Non-Precedential:

Docket 94-2122




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Recommended Citation
"Newman v GHS Osteopathic" (1995). 1995 Decisions. Paper 187.
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               UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                         No. 94-2122


                      JEFFREY B. NEWMAN

                             v.

    GHS OSTEOPATHIC, INC., PARKVIEW HOSPITAL DIVISION

                              Jeffrey B. Newman,

                                          Appellant



     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
             (D.C. Civil Action. No. 94-0060)


          Submitted under Third Circuit LAR 34.1(a)
                        June 27, 1995

BEFORE:    MANSMANN, GREENBERG, and SAROKIN, Circuit Judges

                   (Filed: July 17, 1995)


                              George D. Walker, Jr.
                              Donna E. Baker
                              Larry Pitt & Associates
                              1918 Pine Street
                              Philadelphia, PA 19103

                                       Attorneys for Appellant


                              A. James Johnston
                              Jonathan B. Sprague
                              Sidney R. Steinberg
                              Post & Schell
                              1800 JFK Boulevard
                              19th Floor
                              Philadelphia, PA 19103

                                       Attorneys for Appellee


                              1
                      OPINION OF THE COURT
                         ______________


GREENBERG, Circuit Judge.
          In this case under the Americans with Disabilities Act,

42 U.S.C. §§ 12111-12117 (ADA), Jeffrey B. Newman appeals from

the district court's October 20, 1994 order entering judgment

against him and in favor of GHS Osteopathic, Inc.-Parkview

Hospital Division, following a bench trial.    The appeal raises

significant issues regarding compliance with discovery

obligations and the burden of proof under the ADA.    We will

affirm.



                                 I.

          We largely draw our statement of the facts from the

district court's opinion.    Prior to the layoff that led to this

lawsuit, Newman worked as a physical therapy aide in Parkview's

rehabilitation department.   Newman suffers from a form of

nocturnal epilepsy, and he takes medication several times a day

to prevent the onset of seizures.     The medication makes Newman

drowsy, and therefore he sought to combine the 30-minute lunch

break and the two 15-minute morning and afternoon breaks which

Parkview granted into one hour-long break.    Newman used this hour

to nap and negate the medication's side effects.     Although




                                 2
Parkview's policy prohibited bunching the breaks, several other

employees combined them as well.

          In May 1992, Kamille Sprenkle of Rehab America, an

independent contractor agency, began working with Parkview's

Director of the Rehabilitation Department to assist in

supervising and running the department.     Soon thereafter, she

began enforcing the policy against combining the breaks.1       When

Newman protested that he needed to combine the time for medical

reasons, Sprenkle referred him to Jennifer Brown, Parkview's

director of human resources.      Brown, in turn, told Newman that to

be exempt from the policy, he would need authorization from a

hospital physician.   Brown also agreed to exempt Newman from the

policy pending the medical evaluation.     App. 447.   A physician

"subsequently recommended that [Newman] be allowed to continue

combining his breaks because such bunching was a reasonable

medical necessity."   App. 448.

          Beginning in 1992, the hospital's financial situation

began to deteriorate, and it instituted a reduction in hours for

much of its staff, including Newman.     Later that year, the

hospital began planning more cuts, including layoffs.      In

February 1993, Ernest Perilli, Parkview's associate executive

director of operations, determined that one full-time

nonprofessional position in the rehabilitation department should

be eliminated, and he consulted Sprenkle (who was on maternity

1
 The district court found that "at a January, 1993 meeting of the
department heads, Sprenkle was told by her boss at Parkview that
the policy against combining the breaks would now be enforced."
App. 447.

                                   3
leave) for assistance.   She in turn recommended that Parkview

eliminate the position of full-time physical therapy aide. Newman

was the only employee holding that position.   Effective February

19, 1993, the hospital laid off Newman and six other employees.

          On February 5, 1994, Newman filed a complaint against

Parkview in the district court, alleging that its decision to lay

him off constituted unlawful discrimination under the ADA.

Specifically, Newman alleged, among other things, that his layoff

resulted from Sprenkle's irritation with his medical need to

combine the breaks.   He contended that "[u]pon [his] exercise of

his ability to continue his break consolidation, Ms. Sprenkle

became belligerent in attitude with him."   Br. at 5.    He further

supported his complaint with certain allegations of actions that

occurred after the layoff, which he contended demonstrated that

Parkview's proffered reasons for his layoff were pretextual.2

          During pretrial discovery, Newman propounded

interrogatories on Parkview seeking identification of each person

Parkview believed had knowledge of his claims and each person it

intended to call at trial.   Newman also sought to learn the

2
 For instance, Newman says he was told he could take a part-time
position as a physical therapy aide without benefits but that he
would have to bump his friend out of the position. The district
court found that Newman did not take the position because he did
not want to cause his friend to be laid off. Newman also points
out that soon after his one-year right to recall had expired, a
part time aide was given a full time position. The district
court attributed this latter development to the fact that
Parkview had hired a new independent contractor to supply
professional positions to the rehabilitation department and that
"the new contractor's aggressive marketing practices . . .
resulted in a much higher volume of patients in the
rehabilitation department at Parkview." App. 451.

                                4
substance of each prospective witness' testimony.   Parkview

responded by, among other things, referring to its self-executing

disclosures, objecting to the scope of the interrogatory

requests, and stating that it had not identified its trial

witnesses.  Its self-executing disclosures stated that:
          Defendant believes the following persons are
          reasonably likely to have information that
          bears significantly on the claims or defenses
          in this matter:

               Jennifer M. Brown

               Plaintiff's job performance; the
               Hospital's attempts to accommodate
               Plaintiff's alleged disability;
               Hospital-wide layoff of February,
               1993; Hospital policies and
               procedures.

               Kamille Sprenkle

               Plaintiff's job performance; the
               decision to eliminate the position
               of full-time Physical Therapy Aid;
               conversations with Plaintiff
               regarding his request for an
               accommodation.

               Ernest Perilli

               Hospital-wide layoffs of February,
               1993; Hospital policies and
               procedures.


Newman claims that he never received this list and he further

observes that the names and the substance of their testimony were

not supplied in response to his interrogatories.    Therefore, he

made an in limine motion under Fed. R. Civ. P. 37 to exclude the
testimony of Perilli and Brown on the ground that their names and

the substance of their testimony were not properly disclosed


                                  5
during pretrial discovery.    On October 11, 1994, the district

court held a hearing at which it heard argument from both sides.

The court concluded that Newman received either the list itself

or the cover letter attaching the list.     It further determined

that even if the latter was the case, it should have been obvious

that an enclosure was missing, and Newman should have contacted

Parkview's counsel to obtain the missing enclosure.    The court

therefore denied Newman's motion, and the case proceeded to a

non-jury trial at which Perilli and Brown testified on October 11

and 12.

           On October 20, the court issued a bench opinion setting

forth its findings of fact and conclusions of law.    The court

found that Parkview's decision was motivated by legitimate

economic reasons arising from its deteriorating financial

situation.    It further found that Sprenkle harbored no animosity

toward Newman and only reluctantly recommended that Newman's

position be eliminated.    Consequently, that same day the court

entered judgment in Parkview's favor.    Newman timely filed this

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



                                 II.

             Newman's primary contention is that the district court

erred by permitting Perilli and Brown to testify.     He claims that

Federal Rules of Civil Procedure 26(a), 26(e) and 37(c)(1)

required the district court to exclude their testimony.

             As amended in 1993, Fed. R. Civ. P. 26(a)(1) provides

for self-executing disclosures, as it requires a party upon its


                                  6
own initiative to disclose "the name and, if known, the address

and telephone number of each individual likely to have

discoverable information relevant to disputed facts . . . ."

Rule 26(a)(3)(A) requires disclosure of "the name . . . of each

witness, separately identifying those whom the party expects to

present and those whom the party may call if the need arises."

Furthermore, Rule 26(a)(5) provides that a party may discover

additional matter through, inter alia, written interrogatories.

Under Rule 26(e), a party is under a continuing obligation to

supplement its discovery responses.

            As also revised in 1993, Rule 37(c)(1) provides that a

party who
            without substantial justification fails to
            disclose information required by Rule 26(a)
            or 26(e)(1) shall not, unless such failure is
            harmless, be permitted to use as evidence at
            trial, at a hearing, or on a motion any
            witness or information not so disclosed. In
            addition to or in lieu of this sanction, the
            court, on motion and after affording an
            opportunity to be heard, may impose other
            appropriate sanctions.


Rule 37 is written in mandatory terms, and "is designed to

provide a strong inducement for disclosure of Rule 26(a)

material."   Harlow v. Eli Lilly & Co., 1995 U.S. Dist. LEXIS 7162

at *7 (N.D. Ill. May 25, 1995).       Nonetheless, the rule expressly

provides that sanctions should not be imposed if substantial

justification exists for the failure to disclose, or if the

failure to disclose was harmless.       Thus, the rule does not leave

district courts without discretion.      See, generally, Fed. R. Civ.

P. 37(c) (Advisory Committee Notes).       In fact, one court has held


                                  7
that "[n]otwithstanding Rule 37(c), the district court may be

found to have abused its discretion if [its] exclusion of

testimony results in fundamental unfairness in the trial of the

case."   Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir.)

(emphasis added), cert. denied, 115 S.Ct. 511 (1994); see also

Bronk v. Ineichen, 54 F.3d 425, 432 (7th Cir. 1995) (interpreting

Rule 37(c)(1)) (In ruling on motion to call witness not

previously identified, "'district court should consider prejudice

or surprise to opposing party, ability of party to cure

prejudice, likelihood of disruption, and moving party's bad faith

or unwillingness to comply.'") (citation omitted).    For our

purposes, then, even under Rule 37, "[t]he imposition of

sanctions for abuse of discovery under Fed. R. Civ. Pro. 37 is a

matter within the discretion of the trial court."    Orjias, 31

F.3d at 1005; Doe v. Johnson, 53 F.3d 1448, 1464 (7th 1995) ("We

review the district court's decision to impose Rule 37 sanctions

for abuse of discretion.").

          We find no abuse of discretion here.   After hearing

argument from both sides, the district court concluded that the

witnesses were identified in Parkview's self-executing

disclosures and that Newman, at a minimum, received the covering

letter referring to the list, if not the list itself.    Thus, the

court concluded that Newman should have sought the list if he had

not received it.   The court therefore believed that Parkview's

possible failure to supply the information in its self-executing

disclosures or to disclose it in response to Newman's

interrogatories should not have prejudiced him and therefore was


                                8
harmless.   The court's decision is consistent with the Advisory

Committee Notes to the 1993 amendments, which state that the

"harmless violation" provision was "needed to avoid unduly harsh

penalties in a variety of situations: e.g., the inadvertent

omission from a Rule 26(a)(1)(A) disclosure of the name of a

potential witness known to all parties. . . ."    Here, there is no

reason to believe that Parkview acted in bad faith; and the court

found that Newman knew the names of its witnesses and the scope

of their relevant knowledge well before trial.    In the

circumstances, the district court did not abuse its discretion in

refusing to exclude the testimony.



                                III.

            Newman next argues that the district court placed an

incorrect burden of proof upon him.    As an initial matter, we

must address the district court's reliance on cases governing

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et

seq., and the Age Discrimination in Employment Act, 29 U.S.C.

§§621-34, to determine the standards for indirectly proving

disparate treatment under the ADA.3    The parties on appeal assume
3
 The district court cited only Griffiths v. CIGNA Corp., 988 F.2d
457 (3d Cir.), cert. denied, 114 S.Ct. 186 (1993), a Title VII
case. But the standards enunciated under Title VII and the ADEA
for these types of cases, commonly referred to as pretext cases,
are derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817 (1973), and proceed as follows:

            First, the plaintiff has the burden of
            proving by the preponderance of the evidence
            a prima facie case of discrimination. Second,
            if the plaintiff succeeds in proving the
            prima facie case, the burden shifts to the


                                 9
that this caselaw informs the standards of causation under the

ADA and we now so hold.

          In the context of employment discrimination, the ADA,

ADEA and Title VII all serve the same purpose -- to prohibit

discrimination in employment against members of certain classes.

Therefore, it follows that the methods and manner of proof under

one statute should inform the standards under the others as well.

Indeed, we routinely use Title VII and ADEA caselaw

interchangeably, when there is no material difference in the

question being addressed.   DiBiase v. SmithKline Beecham Corp.,

48 F.3d 719, 724 n.5 (3d Cir. 1995).   And, the provisions of the

ADA itself recognize the parallel nature of the statutes, as they

provide that
          [t]he powers, remedies, and procedures set
          forth in [Title VII] shall be the powers,

          defendant 'to articulate some legitimate,
          nondiscriminatory reason for the employee's
          rejection.' [McDonnell Douglas, id.], at 802,
          93 S.Ct. at 1824. Third, should the
          defendant carry this burden, the plaintiff
          must then have an opportunity to prove by a
          preponderance of the evidence that the
          legitimate reasons offered by the defendant
          were not its true reasons, but were a pretext
          for discrimination. Id. at 804, 93 S.Ct., at
          1825.

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-
53, 101 S.Ct. 1089, 1093 (1981). Of course, at the trial stage,
the only relevant question for the factfinder is whether the
plaintiff has proven intentional discrimination, and the
plaintiff can try to persuade the trier of fact of this by
proving that the employer's proffered reasons for the adverse
employment decision are pretexts for discrimination. The trier
of fact is not required, however, to find intentional
discrimination simply because it does not believe the employer's
explanation. See Miller v. CIGNA Corp., 47 F.3d 586, 596-97 (3d
Cir. 1995) (in banc).


                                10
          remedies and procedures this subchapter
          provides to the Commission, to the Attorney
          General, or to any person alleging
          discrimination on the basis of disability in
          violation of any provision of this chapter,
          or regulations promulgated under section
          12116 of this title, concerning employment.


42 U.S.C. § 12117(a).

          In accordance with the foregoing principles, courts

addressing the allocations of burdens of proof and persuasion

under the ADA uniformly have looked for guidance to Title VII and

ADEA caselaw.   See Ennis v. National Ass'n of Business and Educ.
Radio, Inc., 53 F.3d 55, 57 (4th Cir. 1995) (holding that Title

VII burden-shifting rules apply in ADA pretext case); DeLuca v.

Winer Indus., Inc., 53 F.2d 793, 797 (7th Cir. 1995) (assuming

that Title VII prima facie case and burden shifting method

applies under ADA); Aucutt v. Six Flags Over Mid-America, Inc.,

869 F. Supp. 736, 743 (E.D. Mo. 1994) (applying Title VII prima

facie case standards to ADA); West v. Russell Corp., 868 F. Supp.

313, 316 (M.D. Ala. 1994) ("Generally . . . federal courts have

applied the settled principles of employment discrimination law

[under Title VII] to the ADA") (citing cases); Doe v. Kohn Nast &

Grav, P.C., 862 F. Supp. 1310, 1318 n.5 (E.D. Pa. 1994);

Braverman v. Penobscot Shoe Co., 859 F. Supp. 596, 603 (D. Me.

1994); See also EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d

1276, 1995 U.S. App. LEXIS 12139 at * 5 (7th Cir. May 22, 1995)

(applying Title VII and ADEA caselaw to interpretation of

individual liability under ADA); Carparts Distribution Ctr., Inc.

v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d



                                11
12, 16 (1st Cir. 1994) (seeking guidance from Title VII caselaw

to determine definition of "employer" under ADA).

          In addition, courts routinely employ the Title VII

burden-shifting rules in pretext cases brought under the

Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which

prohibits disability discrimination in public employment.     See

Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Barth v.

Gelb, 2 F.3d 1180, 1185-86 (D.C. Cir. 1993), cert. denied, ____

U.S. ____, 114 S.Ct. 1538 (1994); Teahan v. Metro-North Commuter

R.R. Co., 951 F.2d 511, 514 (2d Cir. 1991), cert. denied, ____

U.S. ____, 113 S.Ct. 54 (1992); Smith v. Barton, 914 F.2d 1330,

1339-40 (9th Cir. 1990), cert. denied, 501 U.S. 1217, 111 S.Ct.

2825 (1991).   As the ADA simply expands the Rehabilitation Act's

prohibitions against discrimination into the private sector,

Congress has directed that the two acts' judicial and agency

standards be harmonized.   See 29 U.S.C. §§ 791(g), 793(d),

794(d); 42 U.S.C. § 12117(b).   Therefore, the district court

properly looked to ADEA and Title VII caselaw for guidance.

          The court in this case relied in particular on

Griffiths v. CIGNA Corp., 988 F.2d 457 (3d Cir.), cert. denied,
114 S.Ct. 186 (1993), which it interpreted as requiring a

plaintiff in a pretext case to prove that the illicit motive was

the sole cause of the adverse employment decision.    We since have

clarified that in pretext cases a plaintiff need prove only that

the illicit factor "played a role in the employer's

decisionmaking process and that it had a determinative effect on

the outcome of that process."   Miller v. CIGNA Corp., 47 F.3d


                                12
586, 598 (3d Cir. 1995) (in banc).    Nevertheless, the court's

reliance on Griffiths did not prejudice Newman, because it found

that his disability played no role in Parkview's decision.    In

its own words:
          Plaintiff's dismissal by the defendant
          resulted from a bona-fide hospital-wide
          reduction in force because of financial
          difficulty and not from any discrimination on
          the part of defendant against plaintiff due
          to plaintiff's disability. The plaintiff's
          epilepsy was not the sole cause, was not a
          determinative cause, and played no role
          whatsoever in the defendant's decision to
          terminate plaintiff's position or to lay off
          the plaintiff.


App. 453-54.   Thus, irrespective of the applicable test, Newman

could not prevail.4



                               IV.

          In view of the foregoing conclusions, we will affirm

the judgment of the district court.




4
 Newman argues in the alternative that the district court's
findings of fact are not supported by the record. The argument
is without merit. "We accept the district court's findings of
fact unless they are clearly erroneous." Oberti v. Board of
Educ., 995 F.2d 1204, 1220 (3d Cir. 1993); Country Floors, Inc.
v. Partnership of Gepner and Ford, 930 F.2d 1056, 1062 (3d Cir.
1991). The court found the defendant's witnesses to be credible,
and essentially believed Parkview's explanation of Newman's
layoff. It is well settled that "[c]redibility determinations
that underlie findings of fact are appropriate to a bench
verdict," Country Floors, 930 F.2d at 1062, and rarely will be
disturbed. In this case, the district court's findings are
adequately supported by the testimony and we decline to disturb
them.


                                13
14
