                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2004

Amiot v. Kemper Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2521




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                                            NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                    No. 03-2521


               G. THOMAS AMIOT,

                                     Appellant

                              v.

       KEMPER INSURANCE COMPANY;
KEMPER AUTO AND HOME INSURANCE COMPANY;
            STEVE THOMPSON

         ______________________________

     Appeal from the United States District Court
       for the Middle District of Pennsylvania
               (D.C. No. 02-cv-00718)
          District Judge: John E. Jones, III




      Submitted Under Third Circuit LAR 34.1(a)
                on September 27, 2004

  Before: ROTH, BARRY and GARTH, Circuit Judges

         (Opinion filed : December 21, 2004)




                          1
                                         OPINION


ROTH, Circuit Judge.

       G. Thomas Amiot appeals from an order of the United States District Court for the

Middle District of Pennsylvania, granting a motion to dismiss in favor of Kemper

Insurance Company, Amiot’s employer, on Amiot’s discrimination claims under the

Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act

(ADEA), and the Pennsylvania Human Relations Act (PHRA). The District Court held

that Amiot’s complaint contained only bald assertions regarding his ADA and ADEA

claims and that he had failed to show that he was disabled within the meaning of the

ADA or that he was qualified for his position or discharged from it in violation of the

ADEA. Furthermore, the District Court held that, absent sufficient claims under the

ADA and ADEA, plaintiff could not have a cause of action under the PHRA. Amiot

appealed.

       We review de novo the District Court’s decision to grant a Fed. R. Civ. P. 12(b)(6)

motion to dismiss. A Rule 12(b)(6) motion should be granted only when “it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court

must view the material allegations of the complaint in the light most favorable to the

plaintiff and “draw reasonable factual inferences ... to aid the pleader.” D.P. Enter. v.

                                              2
Bucks County Community College, 725 F.2d 943, 944 (3rd Cir. 1984). However, the

court should reject unsupported allegations, “bald assertions”, or “legal conclusions.”

Morse v. Lower Marion School Dist., 132 F.3d 902, 906 (3rd Cir. 1998).

       The District Court had jurisdiction of this case under 28 U.S.C. § 1331. We have

jurisdiction of the appeal under 28 U.S.C. § 1291.

       In November 1999, Amiot was hired by Kemper as a Personal Lines Underwriting

Manager in their Scranton office. Amiot was 55 when he was hired. Before accepting

the position, Amiot told Kemper that he did not have a technical background in

underwriting. Kemper downplayed the importance of possessing this background. Amiot

became anxious, exhausted, and depressed as a result of his job duties and friction with

his supervisor. In January 2003, he sought treatment from a psychiatrist and took a paid

leave of absence. At the end of his leave, Amiot was able to return to work with the sole

limitation that he not work under his old supervisor. Kemper’s Human Resources

department provided Amiot with different job options in the Scranton and Norristown

area. Amiot refused the opportunities because he did not feel he could work in the

Scranton area and he was not qualified for the programmer positions in the Norristown

area. The Human Resource agent indicated that Amiot should contact Kemper’s Human

Resources office in Long Grove, Illinois, to inquire about other open positions.     I.

Amiot’s ADEA Claim




                                             3
       The ADEA prohibits employer discrimination on the basis of age. See 29 U.S.C.

§623 (a)(1). To prove an action under the ADEA, a plaintiff must first establish a prima

facie case, which creates a presumption of unlawful discrimination. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). The burden then shifts to the

defendant to produce evidence that the decision to discharge the plaintiff was neutral

rather than based on discrimination. Id. If the defendant articulates a legitimate business

reason, the presumption is wiped away. Seman v. Coplay Cement Co., 26 F.3d 428, 432

(3d. Cir. 1996). The plaintiff then must give evidence that the employer’s articulated

reason was merely pretext for what in reality was discriminatory motivation. Simpson v.

Kaye Jewelers, 142 F.3d 639, 644 n. 5 (3d Cir. 1998). We agree with the District Court

that Amiot failed to establish a prima facie case of age discrimination and therefore it is

not necessary to reach the burden shifting analysis.

       Based on the complaint, Amiot fails to provide evidence that he was discharged

from his job. In fact, he admits that he has not been officially discharged from the

company. Kemper’s actions toward Amiot included placing him on a leave of absence,

providing him with potential job openings upon his return, and offering additional

assistance in his job search. As stated by the District Court, the facts infer that Amiot

voluntarily abandoned his job search and position within the company. Moreover, in

view of Amiot’s belief that he did not have a technical background in underwriting, he

may not have been qualified for the position and that lack of qualification may in fact be



                                              4
the cause of his problems in attempting to perform it.

                                  II. Amiot’s ADA Claim

       To establish a prima facie case under the ADA the plaintiff must show that he is

(1) disabled within the meaning of the ADA, (2) can perform essential functions of his

job with or without reasonable accommodations, and (3) suffered an adverse employment

action as a result of his discrimination based on his disability. Shaner v. Synthes, 204

F.3d 494, 500 (3d Cir. 2000); Gaul v. Lucent Technologies Inc., 134 F.3d 576 (3d Cir.

1998). Because we agree with the District Court’s holding that Amiot is not disabled

within the meaning of the ADA, there is no need to go on to elements two and three.

       An individual can establish he is disabled under the ADA by showing that he has

(1) a physical or mental impairment that substantially limits one or more of his major life

activities, (2) a record of such an impairment, or (3) is regarded as having such an

impairment. 42 U.S.C. § 12102(2)

       We conclude that the allegations Amiot makes in the complaint, even when taken

in the light most favorable to him, fail to establish that he had an impairment which

substantially limited a major life activity. See Toyota Motor Manu., Kentucky Inc. v.

Williams, 534 U.S. 184, 197 (2002). Amiot’s bald assertions are insufficient. Amiot

admits that he was capable of returning to work after seeking treatment, and he provides

evidence of this, a doctor’s note. This evidence is inconsistent with the notion that Amiot

continued to be substantially limited in a major life activity after his treatment.



                                               5
Moreover, Amiot claims that his disability only limits him from working under the same

supervisor and within the Scranton area. Amiot is only limited in the specific location of

one job rather than in the ability to perform a broad class of jobs. The allegations in

Amiot’s complaint are insufficient to establish that he is substantially limited in

performing any major life activity, including that of working.

       Absent an actual impairment, an individual can meet the definition of disabled if

his employer regards him as having an impairment that substantially limits one or more of

his major life activities. Again, we conclude that Kemper did not regard Amiot as having

a disability. The complaint establishes that Amiot’s employer, Kemper, was aware of his

impairment but fails to demonstrate that the employer viewed this impairment as

substantially impairing Amiot’s ability to work. The complaint alleges that upon

Amiot’s return from his leave of absence, Kemper acknowledged that Amiot was capable

of returning to work and presented him with different options in various locations and

classes of jobs. In response to Amiot’s claim that he was not qualified for these positions,

Kemper directed Amiot to its Long Grove, Illinois, Human Resources office. We cannot

infer from these actions that Kemper viewed Amiot’s impairments as substantially

limiting his ability to work in a broad range of jobs.

                                    IV. CONCLUSION




                                              6
      For the foregoing reasons, we will affirm the judgment of the District Court. 1




      1
       Because we have found that the Amiot has failed to state a claim under the ADA
and ADEA, it follows that he has also failed to state a claim under the PHRA. See Taylor
v. Phoenixville School Dist., 184 F.3d 296, 306 (3d Cir. 1999).

                                            7
