                                                                          NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ____________

                                         No. 10-1730
                                        ____________

                                   EDWARD M. SUPINSKI,
                                                 Appellant

                                               v.

                             UNITED PARCEL SERVICE, INC.;
                           CATHY CLINE; TRACEY NEWCOMER
                                     ____________

                        On Appeal from the United States District Court
                            for the Middle District of Pennsylvania
                         (D.C. Nos. 3:06-cv-0793 and 3:08-cv-0371)
                        District Judge: Honorable Thomas I. Vanaskie
                                        ____________

                                    Argued January 5, 2011

        Before: AMBRO and FISHER, Circuit Judges, and SÁNCHEZ,* District Judge.

                                   (Filed: February 15, 2011)

Cynthia L. Pollick, Esquire (Argued)
363 Laurel Street
Pittston, PA 18640

Kimberly M. Kaplan, Esquire (Argued)
Miriam S. Edelstein, Esquire
Reed Smith LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103-7301



*
 The Honorable Juan R. Sánchez, District Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
                                          ____________

                                   OPINION OF THE COURT
                                        ____________

SÁNCHEZ, District Judge.

       Edward Supinski appeals from two orders of the District Court, which together granted

summary judgment in favor of Supinski‟s former employer, United Parcel Service, Inc. (UPS),

and two individual UPS employees on Supinski‟s claims under the Americans with Disabilities

Act (ADA), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (PHRA), 43

Pa. Stat. Ann. § 951 et seq. After a shoulder injury left him unable to return to his position as a

package car driver, Supinski sued UPS to redress the company‟s failure to accommodate him by

placing him in a position he could perform with his physician-imposed lifting restrictions.

Because we conclude there is a genuine factual issue as to whether Supinski was a “qualified

individual” with respect to the alternative positions he sought and did not obtain, we will reverse

the orders granting summary judgment in favor of UPS and remand for further proceedings

consistent with this opinion.

                                                 I.

       Supinski began working for UPS in 1979 as a car washer and eventually moved into the

position of package car driver at the UPS facility in Taylor, Pennsylvania. In October 2000,

Supinski suffered a work-related rotator cuff tear of his right shoulder, for which he underwent

surgery and a period of physical therapy. In October 2001, Supinski‟s orthopedic surgeon

approved him to return to work with the following permanent lifting restrictions: “[s]eventy

pound lifting limit to waist level, twenty-five pound lifting limit to shoulder level, [and] twenty


                                                  2
pound lifting limit overhead.” (App. 79.) Although these restrictions meant Supinski could no

longer perform his package car driver job (App. 541), he sought to return to UPS in another

position that he could perform despite his lifting restrictions.

          In November 2002, UPS notified Supinski the company had concluded he was not

eligible for a reasonable accommodation under the ADA. (App. 578.) Supinski thereafter filed a

charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the

Pennsylvania Human Relations Commission (PHRC), alleging disability discrimination based on

UPS‟s failure to provide him with a reasonable accommodation when there were “jobs available

that [he] could perform with [his] restrictions.” (App. 575.)

          Supinski also continued to seek employment with UPS through his union. At some point

prior to May 2005, Supinski applied for a feeder driver position (App. 288), and in July 2006, he

applied for a combined position as a car washer/unloader (App. 92). Supinski was not hired for

either position.

          In March 2006, Supinski filed suit against UPS in the Lackawanna County Court of

Common Pleas (Supinski I), asserting PHRA claims for disability discrimination, failure to

accommodate, and retaliation.1 After UPS removed the case to the United States District Court

for the Middle District of Pennsylvania, Supinski amended his complaint to include ADA claims

against UPS and PHRA claims against two UPS employees, and the defendants moved for

summary judgment. In February 2008, while the defendants‟ summary judgment motion was

pending, Supinski filed a second disability discrimination action against UPS (Supinski II) in the


1
    Supinski also asserted a state law claim for wrongful discharge, which he later withdrew.

                                                  3
same federal court, asserting ADA and PHRA claims based on UPS‟s failure to hire him for the

car washer/unloader position. In January 2009, the District Court granted summary judgment for

the individual defendants and granted partial summary judgment for UPS on Supinski‟s

retaliation claim in Supinski I, but permitted Supinski‟s remaining claims to go forward. The

District Court concluded that although Supinski had not presented any evidence to suggest he

had an actual disability—i.e., “a physical or mental impairment that substantially limits one or

more major life activities of [an] individual”—the evidence was sufficient to create a genuine

factual issue as to whether Supinski nevertheless had a disability within the meaning of the ADA

because UPS regarded him as having such an impairment. 42 U.S.C. § 12102(1).2

       In February 2009, the District Court consolidated Supinski I and Supinski II, and UPS

thereafter filed a motion for summary judgment in the consolidated action. In February 2010, the

District Court granted the motion in its entirety. The District Court concluded Supinski could

not prevail on his disability discrimination and failure to accommodate claims as a matter of law

because he failed to show he could meet the lifting requirements of the car washer/unloader and

feeder driver positions, and because UPS was not required to modify essential job functions to

accommodate him. The District Court also concluded Supinski‟s retaliation claim failed as a

matter of law because Supinski could not establish a causal connection between his protected


2
 Effective January 1, 2009, Congress amended the ADA to provide “[a] covered entity . . . need
not provide a reasonable accommodation . . . to an individual who meets the [ADA‟s] definition
of disability . . . solely [on the basis of being regarded as having a disability].” ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553, 3558 (2008). UPS does not
argue this provision should be applied retroactively, but “assumes that it would have been
obligated, at the time [of the events in question], to provide reasonable accommodation to
Supinski had it mistakenly regarded him as disabled.” (Appellee‟s Br. 11 n.2.)

                                                 4
conduct and UPS‟s refusal to hire him for vacant positions where the record showed Supinski

could not perform an essential function of those positions. Finally, the District Court held

Supinski had failed to establish a claim based on a pattern or practice of discrimination.

       Supinski appeals, arguing the District Court erred in (1) concluding that heavy lifting

exceeding Supinski‟s restrictions was an essential function of the car washer/unloader and feeder

driver positions; (2) failing to consider whether there was some reasonable accommodation that

would have permitted Supinski to perform the essential functions of those positions; (3) failing to

consider Supinski‟s ability to perform the essential functions of positions other than car

washer/unloader and feeder driver; (4) declining to apply principles of estoppel to preclude UPS

from contesting his ability to perform any jobs based on its contrary position in his worker‟s

compensation proceedings; and (5) dismissing his retaliation claim.

                                                 II.

       The District Court had jurisdiction under 28 U.S.C. § 1331 and § 1332, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We review the grant of summary judgment de novo,

applying the same standard as the District Court. Deane v. Pocono Med. Ctr., 142 F.3d 138, 142

n.3 (3d Cir. 1998) (en banc). Summary judgment is proper when, viewing the facts in the light

most favorable to the nonmoving party and drawing all reasonable inferences in that party‟s

favor, “the movant shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Hugh v. Butler Cnty. Family

YMCA, 418 F.3d 265, 267 (3d Cir. 2005). Material facts are those facts which “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,



                                                 5
248 (1986). A factual issue is genuine “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Id. Where the moving party seeks summary judgment on an

issue on which it will bear the burden of proof at trial, it “must show that it has produced enough

evidence to support the findings of fact necessary to win.” El v. Se. Pa. Transp. Auth., 479 F.3d

232, 237 (3d Cir. 2007).

                                                 III.

       To make out a prima facie case of disability discrimination or failure to accommodate

under the ADA,3 a plaintiff must establish, inter alia, that he is a “qualified individual,” defined

as an individual “who, with or without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or desires.” 42 U.S.C. §

12111(8); Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006). This inquiry has

two parts: “(1) whether the individual has the requisite skill, experience, education and other

job-related requirements of the position sought, and (2) whether the individual, with or without

reasonable accommodation, can perform the essential functions of that position.” Id.

       Focusing on the latter question,4 the District Court concluded Supinski was not a

qualified individual with respect to either the car washer/unloader or the feeder driver position

because heavy lifting in excess of Supinski‟s restrictions was an essential function of both




3
  “[T]he same legal standard that applies to the ADA applies equally to disability discrimination
claims under the PHRA.” Colwell v. Rite Aid Corp., 602 F.3d 495, 499 n.3 (3d Cir. 2010).
4
  UPS has never suggested Supinski lacked the “requisite skill, experience, education and other
job-related requirements” of the car washer/unloader position, but contends he is not qualified for
the feeder driver position because he does not have a commercial driver‟s license.

                                                  6
positions and UPS was not required to modify this essential function in order to accommodate

Supinski. Supinski challenges both conclusions.

       In general terms, the “essential functions” of a position are the “fundamental job duties,”

as opposed to the “marginal functions.” 29 C.F.R. § 1630.2(n)(1). A job function may be

considered essential for a number of reasons, including because (1) “the reason the position

exists is to perform that function,” (2) only a limited number of employees are available “among

whom the performance of that job function can be distributed,” or (3) the function is “highly

specialized so that the incumbent in the position is hired for his or her expertise or ability to

perform the particular function.” Id. § 1630.2(n)(2). Under the ADA‟s implementing

regulations, evidence a particular job function is essential may include, but is not limited to:

       (i)     The employer‟s judgment as to which functions are essential;
       (ii)    Written job descriptions prepared before advertising or interviewing
               applicants for the job;
       (iii)   The amount of time spent on the job performing the function;
       (iv)    The consequences of not requiring the incumbent to perform the function;
       (v)     The terms of a collective bargaining agreement;
       (vi)    The work experience of past incumbents in the job; and/or
       (vii)   The current work experience of incumbents in similar jobs.

Id. § 1630.2(n)(3).

       As we have repeatedly recognized, “whether a particular function is essential „is a factual

determination that must be made on a case by case basis [based upon] all relevant evidence.‟”

Deane, 142 F.3d at 148 (quoting 29 C.F.R. pt. 1630, app. § 1630.2(n)) (alteration in original);

accord Turner, 440 F.3d at 612; Skerski v. Time Warner Cable Co., 257 F.3d 273, 279 (3d Cir.

2001). Although the burden is on the plaintiff to show, as part of his prima facie case, that he is a

qualified individual, the employer “has the burden of showing a particular job function is an


                                                  7
essential function of the job.” Rehrs v. Iams Co., 486 F.3d 353, 356 (8th Cir. 2007); Ward v.

Mass Health Research Inst., Inc., 209 F.3d 29, 35 (1st Cir. 2000); see also 29 C.F.R. pt. 1630,

app. § 1630.2(n) (while “the inquiry into essential functions is not intended to second guess an

employer‟s business judgment with regard to production standards,” the employer “will have to

show that it actually imposes such requirements on its employees in fact, and not simply on

paper”). Accordingly, we may uphold the grant of summary judgment in UPS‟s favor only if we

conclude reasonable jurors “could not but find” that heavy lifting exceeding Supinski‟s

restrictions was an essential function of the car washer/unloader and feeder driver positions. See

Turner, 440 F.3d at 612.

       The summary judgment record contains little evidence regarding the extent of the lifting

requirements of either position. The main evidence on the subject is a September 11, 2006,

document entitled “UPS Essential Job Functions,” which purports to list the essential job

functions for various positions at UPS. (App. 465-529.) Although the document does not

include a description for the combined car washer/unloader position for which Supinski applied

in July 2006, it includes separate descriptions for the positions of car washer and loader/unloader,

as well as a description for the feeder driver position. (App. 491, 496, 500.) Both the

loader/unloader and the feeder driver descriptions list as essential job functions the ability to

“[l]ift, lower, push, pull, leverage and manipulate equipment and/or packages weighing up to 70

pounds” and to “[a]ssist in moving packages weighing up to 150 pounds.” (App. 496, 500.) The

loader/unloader description also lists the ability to “[l]ift packages to heights above the shoulder

and lower to foot level as appropriate.” (App. 500.) As Supinski notes, however, these job



                                                  8
descriptions were not prepared until September 2006, after he was denied both positions. The

descriptions are thus of limited relevance in establishing the essential functions of the positions

at the time of his applications. See 42 U.S.C. § 12111(8) (“[I]f an employer has prepared a

written description before advertising or interviewing applicants for the job, this description shall

be considered evidence of the essential functions of the job.” (emphasis added)).

        Even if the job descriptions had been prepared before Supinski submitted his bids, they

would not compel the conclusion that lifting in excess of Supinski‟s requirements was an

essential function of either position. While the job descriptions refer to the lifting of packages

“weighing up to 70 pounds” (App. 496, 500), even after his injury Supinski could lift up to

seventy pounds to waist level (App. 79). The loader/unloader job description also refers to the

lifting of packages “to heights above the shoulder”; however, the description does not specify the

weight of packages which must be lifted to such heights, instead stating above-the-shoulder

lifting must be done “as appropriate.” (App. 500.) Moreover, both job descriptions include the

disclaimer that the essential functions of the job “may vary greatly depending on the size and

location of the UPS facility,” and “[a]t some locations, employees may not perform all of the

essential job functions listed above.” (App. 496, 500.) The job descriptions thus fail to

conclusively establish that lifting in excess of Supinski‟s restrictions was an essential function of

either position.

        UPS also points to “„declarations of both management and union representatives

confirm[ing] that since 1997 the Car Washer job has been combined with another position

involving heavy lifting.‟” (Appellee‟s Br. 26 (quoting Dist. Ct. Op. of Feb. 11, 2010, at 15).)



                                                  9
Although these declarations support UPS‟s contention that, since 1997, all car washer positions

at the Taylor facility have been combination positions involving at least one other task requiring

lifting, they do not address the extent of the lifting requirements for such combination positions.

Indeed, the only declaration to include more than a reference to lifting is the declaration of UPS

Pocono Center Business Manager John Romeo, who states all car washer positions since 1997

have involved “at least one additional task requiring the same lifting requirements as package car

drivers, feeder drivers and loaders.” (App. 431.) Romeo, however, also does not elaborate on

the extent of the lifting requirements for these positions. Moreover, to the extent Romeo‟s

declaration suggests the feeder driver and loader/unloader positions had the same lifting

requirements as the package car driver position, which Supinski admitted he could no longer

perform, Romeo‟s declaration is contradicted by the deposition testimony of former feeder driver

Nicholas Coyer, who stated, in connection with Supinski‟s worker‟s compensation proceedings,

“[w]ithout a doubt, [he] could have performed [his] duties [as a feeder driver]” if he had the

same lifting restrictions as Supinski. (App. 119.)5

       Finally, UPS argues heavy lifting is an essential function of nearly all of its bargaining

unit positions because it is “the vast bulk of labor needed by the company to fulfill its core

mission—moving packages.” (Appellee‟s Br. 27.) But even if, as the District Court suggested,

lifting is inherent in the work performed by UPS employees because UPS is a package delivery


5
  As the District Court noted, Coyer stated he personally lifted forty to fifty pounds above his
shoulders as a feeder driver and probably lifted seventy-five pounds by himself; however, when
asked whether he nevertheless could have performed his job duties with Supinski‟s lifting
restrictions, he stated: “[w]ithout a doubt, I could have performed my duties. Without a doubt.”
 (App. 115-16, 118-19.)

                                                 10
company, there is no evidence regarding the extent to which the car washer/unloader and feeder

driver positions required lifting in excess of Supinski‟s restrictions, the amount of time spent on

the job doing such heavy lifting, the consequences to UPS of not requiring Supinski to perform

such lifting, or the experience of any incumbents—past or present—in the combined car

washer/unloader position. Given the lack of evidence regarding the nature and extent of the

lifting requirements of the car washer/unloader and feeder driver positions, we cannot conclude a

reasonable jury would be compelled to find lifting in excess of Supinski‟s restrictions was an

essential function of either position. Accordingly, we hold the District Court erred in concluding,

as a matter of law, that Supinski was not a qualified individual because the lifting requirements

of these positions exceeded his physical capacity.6

       Supinski also argues the District Court erred in failing to consider whether UPS could

have accommodated his perceived disability by arranging for other employees to assist him with

heavy lifting. A “reasonable accommodation” under the ADA may include measures such as job

restructuring or reassignment to a vacant position. 42 U.S.C. § 12111(9)(B). An employer may

be required to “restructure a job by reallocating or redistributing nonessential, marginal job

functions”; however, the employer “is not required to reallocate essential functions.” 29 C.F.R.

pt. 1630, app. 1630.2(o); see also Skerski, 257 F.3d at 285 n.4 (“[E]mployers are not required to

accommodate an employee by removing an essential function or restructuring a job so as to avoid




6
 Although the District Court noted in its summary judgment decision that UPS also argued
Supinski was not qualified for the feeder driver position because he did not have a commercial
driver‟s license, the District Court did not decide this issue. We decline to decide the issue on
appeal in the first instance.

                                                 11
it, but, rather, they are to provide an accommodation so as to enable the employee to perform

such a function.”).

          Having found that heavy lifting exceeding Supinski‟s restrictions was an essential

function of the car washer/unloader and feeder driver positions—the only positions other than

package car driver for which UPS had vacancies following Supinski‟s injury and return to

work—the District Court concluded UPS was not required to alter this requirement in order to

accommodate Supinski. Because we conclude there is a genuine factual issue as to whether such

heavy lifting was an essential job function of these positions, we must also hold the District

Court erred in concluding, as a matter of law, that UPS had “no duty to change the requirements

for [the car washer/unloader and feeder driver] positions to accommodate Mr. Supinski‟s

physical capacity.” (App. 21.) UPS argues Supinski‟s proposed accommodation—assistance

from fellow employees to lift packages exceeding his restrictions—would “require UPS to

employ a second person the majority of the time to assist Supinski” and is therefore not

reasonable as a matter of law. (Appellee‟s Br. 28.) However, UPS cites no evidence to support

this contention. This issue, too, should therefore be decided by a jury based on a fully developed

record.

          As to Supinski‟s retaliation claim, construing the claim as alleging UPS retaliated against

Supinski for requesting an accommodation and filing a charge of discrimination by denying him

the requested accommodation, the District Court granted summary judgment for UPS in both

Supinski I and the consolidated action. (App. 21, 41-42.) On appeal, Supinski presses a different

variation of his claim, arguing UPS retaliated against him for requesting an accommodation by



                                                  12
telling him UPS “does not take cripples back,” telling him not to come to the plant looking for

work as often, and offering him $1 to resign. (Appellant‟s Br. 33-34.) UPS concedes Supinski

raised this argument in his opposition to the defendants‟ motion for summary judgment in

Supinski I, but argues these allegedly retaliatory actions do not amount to an adverse action as a

matter of law.7 (Appellee‟s Br. 34; Appellee‟s Sur-reply Br. 8 n.1.) We decline to address this

issue on appeal in the first instance and instead remand so that the District Court may consider

whether, considered in context, these statements would dissuade a reasonable worker from

engaging in the protected conduct of requesting an accommodation. See Gaujacq v. EDF, Inc.,

601 F.3d 565, 578 (D.C. Cir. 2010) (“An employer‟s words . . . must be considered in context to

determine whether they would „dissuade a reasonable worker‟ from filing a claim and thus result




7
  UPS also argues we lack jurisdiction to consider this theory, which was raised only in Supinski
I, because the District Court‟s summary judgment order in Supinski I directed the Clerk of Court
to enter judgment in favor of UPS on Supinski‟s retaliation claim, and Supinski did not file a
notice of appeal within thirty days after this entry of judgment. “For an action involving claims
against multiple parties, a judgment that resolves less than all of the claims against all of the
parties is not a „final‟ judgment unless the court „expressly determines that there is no just reason
for delay.‟” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 183 (3d Cir. 2010) (quoting Fed.
R. Civ. P. 54(b)). Although UPS asserts the District Court entered “final judgment” as to the
retaliation claim, the Court‟s summary judgment order did not mention Rule 54(b) or make any
finding that there was no just reason for delay. Nor does UPS point to anything in the record
suggesting the District Court intended to enter judgment under Rule 54(b). In these
circumstances, the District Court‟s judgment did not become final until February 11, 2010, when
judgment was entered in favor of UPS on all of Supinski‟s remaining claims. See Berckeley Inv.
Grp., Ltd. v. Colkitt, 259 F.3d 135, 143-45 (3d Cir. 2001) (finding an appeal from an order
granting “final judgment” as to claims against only one defendant was premature where the
district court did not cite Rule 54(b) or discuss its application).

                                                 13
in actual retaliation.” (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57

(2006)).8

                                                IV.

       For the foregoing reasons, we reverse the grant of summary judgment for UPS on

Supinski‟s disability discrimination, failure to accommodate, and retaliation claims, and remand

for further proceedings consistent with this opinion.




8
 We find the two remaining issues raised by Supinski to be without merit. Supinski argues the
District Court erred in failing to consider his ability to perform the essential functions of
positions other than car washer/unloader and feeder driver. The burden, however, was on
Supinski to show other vacant, funded positions were available, Shapiro v. Twp. of Lakewood,
292 F.3d 356, 360 (3d Cir. 2002), and the only evidence he produced regarding alternative
positions was a chart the District Court declined to consider because it was “neither identified
nor authenticated” (App. 19). We perceive no abuse of discretion in this ruling. See Gen. Elec.
Co. v. Joiner, 522 U.S. 136, 141-43 (“[A]buse of discretion is the proper standard of review of a
district court‟s evidentiary rulings.”). We also reject Supinski‟s estoppel argument, as UPS‟s
position in this litigation that Supinski cannot perform the essential functions of the positions of
car washer/unloader and feeder driver is not inconsistent with its position in Supinski‟s worker‟s
compensation proceedings that he was generally able to work.

                                                 14
