                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-21-2008

Nicholson v. W Penn Alghny Health
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4354




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 07-4354
                                     ____________

                                 TERRI NICHOLSON,

                                            Appellant

                                             v.

                   WEST PENN ALLEGHENY HEALTH SYSTEM
                               ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 06-cv-00814)
                     District Judge: Honorable Gary L. Lancaster
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 29, 2008

           Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.

                                (Filed: October 21, 2008)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Plaintiff Terri Nicholson brought an employment discrimination action against

defendant West Penn Allegheny Health System (West Penn), alleging that West Penn

discriminated against her due to her disability. The District Court granted West Penn’s
motion for summary judgment. Nicholson appeals the District Court’s order. For the

reasons set forth below, we will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Terri Nicholson was employed as a registered nurse at Allegheny Specialty

Practice Network, which is affiliated with West Penn. Following a January 2005 incident

in which she was a victim of a violent crime, Nicholson began suffering from post-

traumatic stress disorder (PTSD) and depression. As a result, she sought medication and

other treatment, but also resorted to alcohol. Nicholson informed Dr. Lara Kunschner, a

doctor for whom she worked, of the January incident and appeared at Dr. Kunschner’s

house intoxicated on several occasions. Dr. Kunschner told the Human Resources

department of Nicholson’s alcohol problems.

       Starting in April 2005, Nicholson began requesting medical leave time. Human

Resources granted each of her requests. In June 2005, following one leave, Nicholson

met with several personnel members and signed a Last Chance Agreement, which stated

that should she fail to comport with its terms – one of which was to not consume any

alcohol – her employment could be terminated. In February 2006, Nicholson did

consume alcohol and telephoned a coworker while under the influence. Nicholson was



                                              2
admitted to Sewickley Valley Hospital and took additional medical leave. In March

2006, Nicholson met with Joanne Menzer of Human Resources who informed her that

since she violated the Last Chance Agreement by consuming alcohol, her employment

was terminated.

       Nicholson brought an employment discrimination action in the District Court for

the Western District of Pennsylvania against West Penn alleging violations of section 504

of the Rehabilitation Act and the Family and Medical Leave Act (FMLA), asserting that

West Penn terminated her employment due to her disability and her taking medical leave.

West Penn moved for summary judgment and Nicholson moved for partial summary

judgment. In her response to West Penn’s motion, Nicholson stipulated to dismissing her

FMLA claim. On October 23, 2007, the District Court granted West Penn’s motion for

summary judgment, finding that Nicholson failed to set forth a prima facie case of

discrimination pursuant to the Rehabilitation Act. Nicholson timely appealed the District

Court’s order.

                                             II.

       The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331 and

we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review where a

district court grants a motion for summary judgment. Boyle v. County of Allegheny, 139

F.3d 386, 393 (3d Cir. 1998). Summary judgment should be granted “if the pleadings, the

discovery and the disclosure materials on file, and any affidavits show that there is no



                                             3
genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). We will construe “all of the facts and inferences in

the light most favorable to the nonmoving party.” Peters v. Del. River Port Auth., 16

F.3d 1346, 1349 (3d Cir. 1994).

                                              III.

       Nicholson argues on appeal that the District Court erred in granting the

defendant’s motion for summary judgment and dismissing Nicholson’s Rehabilitation Act

claim. Section 504 of the Rehabilitation Act states in part:

       “No otherwise qualified individual with a disability in the United States . . .
       shall, solely by reason of her or his disability, be excluded from the
       participation in, be denied the benefits of, or be subjected to discrimination
       under any program or activity receiving Federal financial assistance . . . .”

29 U.S.C. § 794(a). It is not disputed that Allegheny Specialty Practice Network received

federal funding while Nicholson was employed, thereby implicating section 504

protection for its employees.

       In order to establish a prima facie case of discrimination under the Rehabilitation

Act,1 a plaintiff employee “must initially show ‘(1) that he or she has a disability; (2) that

he or she is otherwise qualified to perform the essential functions of the job, with or

without reasonable accommodations by the employer; and (3) that he or she was




       1
        In analyzing whether there has been a section 504 violation, the standards used for
claims brought pursuant to Title I of the Americans with Disabilities Act of 1990 are to be
applied. 29 U.S.C. § 794(d).

                                               4
nonetheless terminated or otherwise prevented from performing the job.’” Wishkin v.

Potter, 476 F.3d 180, 184-85 (3d Cir. 2007) (quoting Shiring v. Runyon, 90 F.3d 827, 831

(3d Cir. 1996)). If the plaintiff establishes a prima facie case, the burden then shifts to the

defendant employer to rebut the presumption of discrimination by “articulat[ing] some

legitimate, nondiscriminatory reason for the employment action.” Id. at 185. Where the

defendant sufficiently does so, the plaintiff must show that the defendant’s proffered

reason is “pretextual.” Id.

       The District Court determined that Nicholson failed to establish that she suffered

from a “disability.” As used in the Rehabilitation Act, an “individual with a disability” is

someone who “(i) has a physical or mental impairment which substantially limits one or

more of such person’s major life activities; (ii) has a record of such an impairment; or

(iii) is regarded as having such an impairment.” 29 U.S.C. § 705(20)(B). Nicholson

argues that the District Court erred in concluding there were no genuine issues of material

fact about whether her PTSD, depression, and alcohol abuse substantially impaired her

ability to perform major life activities. She also asserts that she established a record of a

disability. Further, Nicholson claims that she was “regarded as” having a disability.

Upon reviewing the record, we conclude that Nicholson’s arguments fail.

       First, the District Court correctly determined Nicholson did not sufficiently

establish she was substantially limited in performing one or more major life activities. A

condition is a substantial limitation on a major life activity if it renders the person



                                               5
incapable of performing, or “[s]ignificantly restrict[s] as to the condition, manner or

duration under which an individual can perform,” a major life activity “that the average

person in the general population can perform.” 29 C.F.R. § 1630.2(j)(1)(i)-(ii). Major

life activities are those functions “that are of central importance to daily life,” Toyota

Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002), encompassing fundamental

acts “such as caring for oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working,” 29 C.F.R. § 1630.2(i). Where a plaintiff

seeks to establish that his or her condition substantially limits his or her ability to work,

that plaintiff “must, at a minimum, allege that he or she is ‘unable to work in a broad class

of jobs.’” Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 512 (3d Cir. 2001) (quoting

Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999)).

       Here, Nicholson did not show that her PTSD, depression, or alcohol abuse

substantially limited any major life activity. At her deposition, Nicholson testified that

her depression and PTSD invoked “flashbacks” and “intrusive thoughts,” but the record

does not show Nicholson satisfied the “demanding standard for qualifying as disabled.”

Toyota Motor Mfg., 534 U.S. at 197. On appeal, Nicholson argues specifically that her

conditions prevented her from working, pointing to her incidents of FMLA medical leave.

The District Court aptly determined, though, that the fact that an employee receives

FMLA medical leave does not equate to a finding that he or she is disabled for

Rehabilitation Act purposes. As stated in 29 C.F.R. § 825.702(b), a “serious health



                                               6
condition” under the FMLA is a “different concept[]” than the term “disability” and thus

both “must be analyzed separately.” Also, the record fails to indicate that Nicholson’s

conditions precluded her from working in a wide range of jobs; in fact, at the time of her

deposition, she was employed full-time as a registered nurse at Jefferson Regional

Medical Center.

       Second, the District Court was correct when it found no genuine issue of material

fact as to any record of Nicholson’s impairment. To prove a record of a disability, a

plaintiff “still must demonstrate that the recorded impairment is a ‘disability.’” Tice, 247

F.3d at 513. Despite Nicholson’s incidents of FMLA medical leave, such occurrences are

insufficient to establish she had a “disability” under the Rehabilitation Act because the

FMLA and Rehabilitation Act call for differing analyses. 29 C.F.R. § 825.702(b).

       Third, Nicholson did not show that her employer regarded her as disabled.

Nicholson argues to this Court that she was terminated after consuming alcohol, which

evinces her employer’s view that she was substantially impaired in performing her job. In

order to be regarded as having a disability, the employee must establish that the employer

considered “the employee to be suffering from an impairment within the meaning of the

statutes, not just that the employer believed the employee to be somehow disabled.”

Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir. 2002) (internal quotation marks

and citations omitted). As discussed by the District Court, even if Nicholson’s employer

perceived her to be an alcoholic, her claim cannot succeed. The Rehabilitation Act



                                             7
excludes from coverage “any individual who is an alcoholic whose current use of alcohol

prevents such individual from performing the duties of the job in question or whose

employment, by reason of such current alcohol abuse, would constitute a direct threat to

property or the safety of others.” 29 U.S.C. § 705(20)(C)(v). Nicholson’s argument that

the District Court erroneously relied on this provision must be rejected.

       In sum, Nicholson failed to establish a genuine issue of material fact as to whether

she was disabled under the Rehabilitation Act. Aside from disputing the District Court’s

“disability” determination, Nicholson also argues on appeal that the District Court

erroneously dismissed her failure to accommodate claim. She asserts that the Last

Chance Agreement does not relieve her employer’s “ongoing duty” to reasonably

accommodate her, and also alleges that the Last Chance Agreement is a per se violation

of the duty to accommodate. We need not reach these arguments because the District

Court correctly found there were no genuine issues of material fact as to the threshold

determination of whether Nicholson had a legally recognizable disability.

                                            IV.

       For the foregoing reasons, we will affirm the order of the District Court.




                                             8
