                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-8-2006

Vierra v. Wayne Memorial Hosp
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4510




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 04-4510


                                  DEBORAH VIERRA

                                                 Appellant
                                            v.

                            WAYNE MEMORIAL HOSPITAL


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 00-cv-01567)
                     District Judge: Honorable James F. McClure, Jr.


                                Argued January 31, 2006

           Before: McKEE, VAN ANTWERPEN, and SILER,* Circuit Judges.

                                 (Filed February 8, 2006)

Paul M. Jennings (Argued)
Employment Law Office
321 Spruce Street
Suite 1202, Bank Towers
Scranton, PA 18503


Counsel for Appellant



       *
         Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit,
sitting by designation.
Joseph S. Sileo (Argued)
Ufberg, Tressler & Sileo, L.L.P.
310 Penn Avenue
Scranton, PA 18503

Counsel for Appellee
                                            ____

                                   OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Appellant Deborah Vierra appeals from the District Court’s grant of summary

judgment to Wayne Memorial Hospital (the “Hospital”) on her Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12,101 et seq., claims. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and will affirm.

                                              I.

       Because we write solely for the benefit of the parties, we state the facts only as they

pertain to our analysis.

       Deborah Vierra, a nurse, began working for the Hospital’s Home Health Department

in 1992. Prior to this employment, Vierra suffered a leg injury while a medic in the military

that resulted in her using a knee brace and potentially needing surgery. In 1995, she was

promoted to a supervisory position at Home Health’s Milford, Pennsylvania, location.

Sometime in late 1998, when the director of Home Health’s Honesdale, Pennsylvania,

location was transferred, Vierra accepted that position. The Hospital claims over Vierra’s

denials that after the transfer, coworkers began complaining about Vierra’s work

                                              2
performance and professionalism. On January 12, 1999, Vierra’s supervisor, Mary Lou

Hoffner, told her that disciplinary action might be taken if Vierra’s job performance did not

improve.

       On January 20, 1999, Vierra slipped on ice in her driveway and injured her left hand.

She is right-handed. She went to work but then left to see a doctor, who diagnosed a broken

index finger. The doctor instructed her to wear a removable splint for a month, and told her

she could return to work. Upon return to the Hospital, she informed Hoffner of the injury.

That day, Hoffner told Vierra to go home to heal. The next day, January 21, 1999, while

Vierra was out of the office being fitted for her splint, a patient was referred to the Hospital

for treatment. Hoffner had instructed Vierra upon her return to schedule the patient’s

treatment for that same day (January 21), but Vierra allegedly instead scheduled the treatment

for the next day (January 22). Hoffner later admonished Vierra for her alleged mistake, and

assigned a different nurse.

       At the end of the day on January 21, 1999, Hoffner told Vierra that she was being

temporarily suspended for a month so that she could heal from her injury, and because of

complaints about her performance and professionalism. Hoffman also allegedly believed that

Vierra could not satisfy standard nursing hygiene practices because she could not adequately

wash her hands. Vierra later met several times with Hoffner and other directors and

supervisors to address the issues Hoffner raised. On February 25, 1999, Vierra was removed

from her supervisory position due to, she was told, her performance issues. Vierra was



                                               3
offered a temporary non-supervisory nursing position, which she refused through counsel.

The Hospital deemed the refusal a “voluntary resignation.” On March 20, 1999, Vierra filed

a discrimination charge with the United States Equal Employment Opportunity Commission

(“EEOC”), which later dismissed the charge and issued a right to sue letter. Vierra then filed

a complaint in the United States District Court for the Middle District of Pennsylvania.

Subsequently, Vierra filed a second EEOC charge alleging retaliation.

       On November 8, 2004, the District Court, which had jurisdiction pursuant to 28

U.S.C. § 1331, granted the Hospital’s motion for summary judgment. The District Court first

ruled that Vierra stated only a “regarded as disabled” claim, and not an “actually disabled”

claim, and that the “regarded as” claim as pleaded in her EEOC charges related only to her

hand injury. Evidence related to her preexisting knee injury was therefore deemed irrelevant.

The District Court also held that the retaliation claim was properly before the court, even

though it was not included in the first EEOC charge. On the merits, the District Court ruled

that Vierra could not establish a prima facie disability discrimination case, because the

condition the Hospital allegedly regarded her as having – a broken finger, requiring the use

of a removable splint for about a month – was not a disability within the meaning of the

ADA. Finally, the District Court ruled that Vierra could not establish a prima facie

retaliation claim because she did not show a protected activity in which she engaged, that

causally led to the Hospital’s adverse action. Vierra now appeals the District Court’s

November 8, 2004 Order.



                                              4
                                             II.

       We exercise plenary review over the District Court’s grant of summary judgment, and

apply the same standard as the District Court. Citizens for Health v. Leavitt, 428 F.3d 167,

175 (3d Cir. 2005). “To affirm the grant of summary judgment, we must be convinced that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law when the facts are viewed in the light most favorable to the

nonmoving party.” Id. (quoting Fed.R.Civ.P. 56(c))

                                             III.

       To avoid summary judgment on an ADA claim, Vierra must show a prima facie case

of discrimination; the Hospital must then “articulate some legitimate, nondiscriminatory

reason” for its decision; finally, Vierra must “point to some evidence, direct or

circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s

articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was

more likely than not a motivating or determinative cause” of the decision. Fuentes v.

Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (stating the McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), and St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), tests).

                                             IV.

       On appeal, Vierra failed in her brief to challenge the District Court’s conclusion that

evidence related to her knee injury was irrelevant because her EEOC charges and federal

complaint referenced only her finger injury. We also reject Vierra’s claim at argument that



                                              5
she was not required to plead – or even deign to reference – the knee injury as the

fundamental basis of her ADA claims merely because defendants were already aware of the

injury. We therefore, like the District Court, will consider Vierra’s “regarded as disabled”

claim only as it applies to her finger injury.1

                             A.“Regarded as Disabled” Claim

       Vierra claims the Hospital discriminated against her because it “regarded” her as

disabled.2 The District Court held that because Vierra could not show a prima facie case of

disability discrimination, summary judgment should be granted to the Hospital. We agree.

       In order to establish a prima facie disability claim, Vierra must show that “(1) [s]he

is a disabled person within the meaning of the ADA; (2) [s]he is otherwise qualified to

perform the essential functions of the job, with or without reasonable accommodations by

the employer; and (3) [s]he has suffered an otherwise adverse employment decision as a

result of discrimination.” Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751,



       1
        Although Vierra’s EEOC charges and District Court complaint accused the Hospital
of regarding her as disabled because of her finger injury, Vierra’s deposition cited only her
knee as the cause of any perceived disability, and even alleged for the first time that she was
actually disabled because of her knee injury. We will, for the purpose of summary judgment,
ignore this curious discrepancy in the name of affording Vierra every possible inference in
her favor.
       2
        Vierra somewhat confusingly now argues that there is a “material issue of disputed
fact” because the District Court allegedly thought Vierra was presenting an “actually
disabled” claim. First, we note that a genuine issue of material fact is only presented by the
record, and not by anything the District Court may have done. Second, contrary to Vierra’s
assertions, at all times the District Court correctly noted and held that Vierra presented a
“regarded as disabled” claim.

                                                  6
761 (3d Cir. 2004) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.

1999)). “Disability” within the meaning of the ADA means, relevant here, that Vierra had

a “physical or mental impairment that substantially limits one or more major life activities

of such individual,” or was “regarded as having such an impairment.”             42 U.S.C. §

12102(2)(A), (C). We must decide, therefore, whether the Hospital regarded Vierra as

having a condition that “substantially limits one or more major life” activity; Vierra’s actual

limitations and impairments are irrelevant for our purposes.

       As the District Court correctly noted, “substantially limited” means that the Hospital

must have believed Vierra had a condition rendering her:

       (i) Unable to perform a major life activity that the average person in the general
       population can perform; or (ii) Significantly restricted as to the condition, manner or
       duration under which an individual can perform a particular major life activity as
       compared to the condition, manner, or duration under which the average person in the
       general population can perform that same major life activity.

29 C.F.R. § 1630.2(j)(1). We consider such factors as “(i) The nature and severity of the

impairment; (ii) The duration or expected duration of the impairment; and (iii) The

permanent or long term impact, or the expected permanent or long term impact of or resulting

from the impairment.” 29 C.F.R. § 1630.2(j)(2), quoted in Williams, 380 F.3d at 762.

       At most, the Hospital could have regarded Vierra as having a broken finger which

required the use of a removable splint for a month – as Vierra herself informed Hoffner.3



       3
       We recognize that because it is the employer’s perception which matters, and not the
employee’s actual limitations, then the Hospital might theoretically have perceived Vierra
as having a much more severe and permanent impairment. See Williams, 380 F.3d at 770

                                              7
This is simply not a substantially limiting impairment within the meaning of the ADA. The

Hospital may have believed that for that one month, Vierra was unable to conform to nursing

hygiene standards due to her use of a splint, removable or not. However, Vierra presented

no evidence to dispute that the Hospital saw her as having a temporary, non-severe injury

without permanent or long-term impact. See also 29 C.F.R. app. § 1630.2(j) (“[T]emporary,

non-chronic impairments of short duration . . . are not usually disabilities. Such impairments

include . . . broken limbs.”). Therefore Vierra cannot establish the first part of her prima

facie ADA case – that she was “regarded as disabled” within the meaning of the ADA.4 We

will affirm the District Court’s grant of summary judgment on this claim.5

                                        B.Retaliation

       Vierra next claims that the Hospital retaliated against her by removing her supervisory


n.14 (“[A] ‘regarded as’ plaintiff can make out a case [even] if the employer is innocently
wrong about the extent of his or her impairment.”) (quoting Taylor v. Pathmark Stores, Inc.,
177 F.3d 180, 191 (3d Cir. 1999)) (second alteration in original). However, where Vierra
specifically informed the Hospital of her condition and 1-month recovery prognosis, where
the employer at issue is in the field of medical diagnosis and treatment, and where Vierra has
produced no evidence to suggest that the Hospital did in fact consider her injury to be
anything more than temporary, we cannot accept Vierra’s argument that the Hospital
regarded her as having a substantial impairment.
       4
        On appeal, Vierra argues that “of course” she was entitled to an “inference” that she
could support a prima facie discrimination case, but she fails entirely to establish any genuine
issue of material fact on the subject. If, as we hold here, Vierra cannot make out a prima
facie discrimination case, any issues of fact regarding the Hospital’s explanation of the
employment action, and possible pretext arguments by Vierra, are simply not material.
       5
        We therefore need not reach the rest of the McDonnell Douglas test, regarding the
Hospital’s non-discriminatory explanation for Vierra’s suspension and release, and Vierra’s
rebuttal of such explanation.

                                               8
duties after she complained about her suspension and refused to take the offered alternate

temporary nursing position. The District Court ruled that Vierra failed to show both that she

engaged in any type of protected activity, and that if she had, it was causally related to the

Hospital’s ultimate decisions. Vierra conceded at argument that she cannot show a prima

facie retaliation claim under the ADA, however even without this concession we will affirm

the grant of summary judgment to the Hospital on this claim.

       For a claim of retaliation under the ADA, Vierra must show three requirements: (1)

a “protected employee activity” on her part; (2) that the Hospital took an “adverse action

either after or contemporaneous” with the protected activity; and (3) a “causal connection”

between the protected activity and the adverse action. Williams, 380 F.3d at 759 (quoting

Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002)). We agree with the

District Court that Vierra never opposed the Hospital’s actions on the basis of alleged

disability discrimination, and never engaged in a protected employee activity. Logically, the

Hospital cannot then have retaliated against her within the meaning of the ADA. We

therefore need not reach the remainder of the elements in the retaliation claim; however, we

note our agreement with the District Court that even if Vierra had complained that the

decision to suspend and remove her was discriminatory, the Hospital was not required to

instead rescind its decision. The decision to terminate Vierra was made before she engaged

in anything that might constitute a protected activity, not after, and therefore cannot have

been causally related to the activity. We will affirm the grant of summary judgment on the



                                              9
retaliation claim.

                                           V.

       For the foregoing reasons, we conclude that the District Court properly granted the

Hospital’s motion for summary judgment against Vierra, and will affirm.         We have

considered all other arguments made by the parties on appeal, and conclude that no further

discussion is necessary.




                                           10
