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


1-21-2004

Parker v. Port Auth Alghny
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2917




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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                      No. 02-2917
                     ____________

              GILDA GLADYS PARKER,

                           Appellant

                           v.

     PORT AUTHORITY OF ALLEGHENY COUNTY,

                ____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE WESTERN DISTRICT OF PENNSYLVANIA

               (Dist. Court No. 00-cv-00671)
      District Court Judge: Hon. Donetta W. Ambrose


        Submitted Under Third Circuit LAR 34.1(a)
                    October 23, 2003

  Before: ALITO, FUENTES, and BECKER, Circuit Judges

            (Opinion Filed: January 21, 2004)


               ______________________

               OPINION OF THE COURT
               ______________________
PER CURIAM:

       This is an appeal from the District Court’s grant of summary judgment in favor of

the Port Authority of Allegheny County (“the Port Authority”) on Gilda Gladys Parker’s

claims that the Port Authority terminated her employment in violation of the Americans

with Disabilities Act, 42 U.S.C. § 12101 et seq. (“the ADA”) and the Pennsylvania

Human Relations Act, 43 Pa. Stat. § 951 et seq. (“the PHRA”).1 We affirm.

                                             I.

       Parker was diagnosed with diabetes in 1993. She began working for the Port

Authority as a bus operator trainee on March 15, 1999. After initial training and before

entering a 90-probationary period, Parker received a copy of the Port Authority’s

Performance Code for Probationary Employees. The Performance Code sets out the Port

Authority’s attendance policy and outlines each action considered sufficient cause for a

final written warning, suspension, or immediate discharge. Additionally, the Performance

Code notes that “[w]ithin the first thirty (30) scheduled working days, all

incident/occurrences may be viewed for possible disciplinary action up to and including

discharge.” Parker began her 90-day probationary period on May 16, 1999.

       On May 18, 1999, the Port Authority learned that Parker had been involved in an

incident during which she did not follow proper routing, became lost, and then failed to



       1
        This Court’s analysis regarding Parker’s ADA claim is dispositive of her PHRA
claim. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (“analysis of
an ADA claim applies equally to a PHRA claim”).

                                             -2-
follow the proper procedure of reporting her location to the Traffic Division of the Port

Authority and obtaining re-routing directions. Instead, Parker improperly obtained

directions from the bus passengers.

       On May 20, 1999, the Port Authority’s Employee Relations Representative, the

Director of Service Delivery for the Port Authority’s Harmar Division, and an instructor

met with Parker regarding the May 18th incident and issued a Final Written Warning in

accordance with the Performance Code. On June 1, 1999, two complaints were lodged

against Parker. One complaint alleged that Parker’s bus missed a stop. The other

complaint alleged that Parker’s bus was 25 minutes late at a different stop. The next day,

Parker met with Robin Rochez, her Port Authority supervisor, to discuss the complaints.

Rochez retrained Parker on a variety of procedures.

       On June 3, 1999, Parker called the Port Authority to report that she would not be at

work. Parker spoke with Teenya McLellan (an instructor) and Tom Collins (a Harmar

Supervisor), neither of whom was her supervisor. Parker stated that she was not feeling

well because of her diabetes. When Rochez learned of this, she agreed that Parker should

not report to work because, among other reasons, Rochez did not believe that it was safe

for Parker to return until she had been cleared by the Port Authority’s medical

department. Parker asked Collins about the possibility of a light-duty position with the

Port Authority. Collins followed up with Donna Lucas, the Employee Relations

Representative. On the same day, Lucas informed Parker that light-duty positions were



                                            -3-
not available for probationary employees because those employees needed to work in the

positions for which they were hired in order to be evaluated.

       Also on June 3, the Port Authority informed Parker that she needed to obtain

information from her doctor regarding her medical status in order to return to work. The

Port Authority requested information to evaluate whether Parker’s medical condition

disqualified her from operating a bus. Approximately one week later, Parker faxed a note

from her doctor indicating that she had an appointment on June 15, 1999. Several days

after the fax was received, Parker still had not provided any medical documentation for

her absences. Accordingly, the Port Authority gave her an authorization for the release of

her medical records. After Parker failed to provide any information regarding her status,

supervisors at the Port Authority scheduled a meeting with her to review her performance

since her probationary period commenced. The meeting occurred on June 23, 1999. Due

to Parker’s overall unsatisfactory work performance and excessive, unexcused

absenteeism, the Port Authority terminated her employment.

       On October 8, 1999, Parker filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) alleging disability discrimination under

the ADA and the PHRA. After receiving the EEOC’s notice of dismissal and right to sue,

Parker filed this action. The District Court granted summary judgment in favor of the

Port Authority, and the Court denied as moot Parker’s motion to strike as inadmissible

hearsay various assertions in the Port Authority’s Statement of Material Facts.



                                            -4-
                                              II.

       We exercise plenary review over a District Court’s grant of summary judgment

and therefore apply the same legal standards applied by the District Court. Courson v.

Bert Bell NFL Retirement Plan, 214 F.3d 136, 142 (3d Cir. 2000). In evaluating the Port

Authority’s motion for summary judgment, we must view the evidence in the light most

favorable to Parker and must decide whether the Port Authority was entitled to judgment

as a matter of law. See F ED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986).

                                             III.

       The ADA prohibits “discrimination against a qualified individual with a disability

because of the disability of such individual.” 42 U.S.C. § 12112(a). To establish that she

has a disability, Parker must show that: (i) she has a physical or mental impairment that

substantially limits one or more of her major life activities; (ii) she has a record of such

impairment; or (iii) she was “regarded as” having such an impairment by the Port

Authority. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 359 (3d Cir. 2000) (applying

42 U.S.C. § 12102(2)).

       Parker’s claims are based on diabetes, a condition with which she was diagnosed

in 1993. Parker concedes that her diabetes was controlled and that it did not substantially

limit a major life activity. Therefore, her claims are dependent on her ability to prove

that the Port Authority regarded her as having an impairment that substantially limits a



                                              -5-
major life activity.

       To be “disabled” under the “regarded as” portion of the ADA's definition of

disability, Parker must demonstrate either that: (i) although she had no impairment at all,

the Port Authority erroneously believed that she had an impairment that substantially

limited major life activities; or (ii) she had a non-limiting impairment that the Port

Authority mistakenly believed limited a major life activity. See Sutton v. United Air

Lines, Inc., 527 U.S. 471, 489 (1999); 2 Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 514

(3d Cir. 2001). In either case, the definition of “substantially limits” remains the same as

it does in other parts of the statute.3 To establish that the Port Authority believed her to

be limited in the life activity of “working,” “working” must encompass “either a class of

jobs or a broad range of jobs in various classes as compared to the average person having

comparable training, skills and abilities.” Sutton, 527 U.S. at 491 (citation and internal

quotations omitted); accord Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523


       2
        The plaintiffs in Sutton had vision impairments which were correctable by
prescriptive glasses. The plaintiffs’ vision problems caused them to be denied positions
as commercial airline pilots. The plaintiffs sued under the ADA’s “regarded as” prong,
and the Supreme Court denied their claim, inter alia, because “if jobs utilizing an
individual’s skill (but not his or her unique talents) are available, one is not precluded
from a substantial class of jobs. Similarly, if a host of different jobs are available, one is
not precluded from a broad range of jobs.” Sutton, 527 U.S. at 492.
       3
         The EEOC regulations also allow for an individual to establish that s/he is
“regarded as” disabled if s/he “[h]as a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of others toward such
impairment.” 29 C.F.R. § 1630.2(l)(2). “These misperceptions often ‘resul[t] from
stereotypic assumptions not truly indicative of . . . individual ability.’” See Sutton, 527
U.S. at 490 (citing 42 U.S.C. § 12101(7)).

                                              -6-
(1999). Thus, “to be regarded as substantially limited in the major life activity of

working, one must be regarded as precluded from more than a particular job.” Murphy,

527 U.S. at 523; accord Sutton, 527 U.S. at 492.

       In this case, the record, even when viewed in the light most favorable to Parker, is

insufficient to show that the Port Authority regarded her “as precluded from more than a

particular job.” Murphy, 527 U.S. at 523. Parker relies heavily on Donna Lucas’s alleged

statement that Parker “couldn’t handle the stress that goes along with the job.” Parker

suggests that Lucas’s statement shows that Lucas regarded her as unable to perform “a

variety of jobs [that] involve stress, driving and the public.” Appellant’s Br. at 19. We

reject this argument. While we give Parker the benefit of any reasonable inferences from

the record, this argument draws inferences that are not reasonable. Lucas’s statement

cannot reasonably be interpreted to mean that she felt that Parker was incapable of

performing all jobs that involved any degree of stress, any type or amount of driving, and

any type or degree of interaction with the public. Rather, all that Lucas’s statement may

reasonably be interpreted to mean is that she did not think that Parker could handle the

particular mix of stress, driving, and public interaction involved in the particular job of

driving a bus. Considering Lucas’s alleged statement and all of the other evidence on

which Parker relies, we do not find sufficient evidence to support a regarded-as claim.4



       4
        We do not find the EEOC Policy Statement on which Parker relies (Appellant’s
Br. at 24) to be apposite. There, the employee was regarded as incapable performing any
job requiring the ability to work well with the public. Here, Lucas’s statement may not

                                             -7-
       Parker argues that her regarded-as claim is supported by the Port Authority’s

insistence that she provide medical information before returning to work. Requiring an

employee to “submit a medical release and be cleared by [her] physician” is not evidence

that an employer regards the employee as disabled. See Somers v. City of Minneapolis,

245 F.3d 782, 788 (8th Cir. 2001). As we noted in Tice, 247 F.3d at 515, “an

appropriately - tailored examination only establishes that the employer harbors doubts

(not certainties) with respect to an employee's ability to perform a particular job”)

(emphasis in original). “Doubts alone do not demonstrate that the employee was held in

any particular regard, and, as we have explained, inability to perform a particular job is

not a disability within the meaning of the Act.” Id. (citation omitted). Therefore, the Port

Authority’s request for a medical excuse for Parker’s absences does not indicate that the

Port Authority regarded her as disabled, in violation of the ADA.

                                            IV.


       We have considered all of Parker’s arguments, but we find no basis for reversal.

Accordingly, the District Court’s grant of summary judgment in favor of the Port

Authority is affirmed.




reasonably be read as expressing any similar view about Parker’s abilities. Instead, Lucas
allegedly referred just to the job of driving a bus.

                                             -8-
