                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2002

Buskirk v. Apollo Metals
Precedential or Non-Precedential: Precedential

Docket No. 01-3556




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Buskirk v. Apollo Metals" (2002). 2002 Decisions. Paper 589.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/589


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL

       Filed September 20, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3556

WILLARD BUSKIRK,
       Appellant

v.

APOLLO METALS; PMA INSURANCE GROUP

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 99-cv-00216)
District Judge: Hon. J. Curtis Joyner

Argued June 10, 2002

Before: SLOVITER, ROTH, and McKEE, Circuit Jud ges

(Filed: September 20, 2002)

       Thomas More Holland
       Jeffrey Campolongo (Argued)
       Law Offices of Thomas More Holland
       Philadelphia, PA 19102

        Counsel for Appellant

       Larry J. Rappoport (Argued)
       Stevens & Lee, P.C.
       Wayne, PA 19087-0236

        Counsel for Appellee




OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Willard Buskirk sued his employer, Apollo
Metals, claiming discrimination in violation of Title I of the
Americans with Disabilities Act (ADA), 42 U.S.C.S 12101 et
seq. (2002), and the Pennsylvania Human Relations Act
(PHRA), 43 Pa. Cons. Stat. Ann. S 951 et seq. (2002).
Buskirk also raised a common law claim of tortious
interference with contractual relations arising out of the
termination of his settlement negotiations with Apollo
Metals’ workers’ compensation insurance carrier, the PMA
Insurance Group.

At the conclusion of Buskirk’s presentation of his case-
in-chief at trial, the District Court granted Apollo Metals’
Rule 50(a) Motion for Judgment as a Matter of Law and
entered judgment for Apollo Metals on all remaining counts
of Buskirk’s complaint. The District Court concluded that
Buskirk could not recover under his "regarded as" disabled
claim because "regarded as" plaintiffs are not entitled to
reasonable accommodation. The District Court alternatively
found that even were Apollo Metals required to provide
reasonable accommodations, it did so. Finally, the District
Court concluded that Apollo Metals was in a privileged
position to interfere with Buskirk’s settlement negotiations
with PMA.

Buskirk challenges all of the above conclusions. He also
contends that the District Court abused its discretion in
limiting the testimony of one of his experts and in
sustaining Apollo Metals’ objection to a communication
between Apollo Metals’ counsel and its insurance provider.

I.

BACKGROUND

A. Facts

Buskirk was hired by Apollo Metals in 1981. He held a
number of positions there throughout his employment,

                                2


including slitter helper, polisher, finish helper, box maker,
and pre-polisher.

On February 8, 1996, Buskirk injured his back when he
slipped on ice and fell in Apollo Metals’ parking lot on his
way to work. After taking two days off to recover, Buskirk
returned to work and continued to work until June 26,
1996. His back injury prevented him from returning to the
position of a box maker, the job he held prior to the injury.
Instead, Apollo Metals placed Buskirk in light duty
positions, such as buff building, quality control, and
sample cutting. Throughout that time period, Buskirk
received treatment for his back injury from several doctors
as well as a chiropractor.

In June 1996, Buskirk’s doctors advised him to
discontinue working entirely in order to rest his back and
Buskirk did so until October 1996. During this leave of
absence, Buskirk filed a workers’ compensation claim and
received partial benefits. On October 1, 1996, Buskirk
returned to work at Apollo Metals in light duty positions,
working less than a full forty-hour work week. In addition
to the reduced hours, Apollo Metals allowed Buskirk to
leave work early on occasion so that he could attend
aquatic therapy sessions. Buskirk testified that he still
experienced pain in the light duty jobs but that he was able
to work through it. Buskirk further testified that he only
once complained of his back pain to any of his supervisors,
and that was in February 1996 soon after the accident
when he had to leave work early due to his pain. In
response to occasional inquiries by his supervisors, he
replied that he was "having a little bit of pain, but [was]
putting up with it." App. at 89. Throughout this period,
Buskirk continued to receive medical treatment and
underwent physical therapy, a work strengthening
program, and a work hardening program.

On or about May 30, 1997, Apollo Metals terminated
Buskirk. In a letter to Buskirk, Apollo Metals stated:

       The reason for our decision is that you are not
       presently able and are not expected to be able to
       perform your former position, with or without
       reasonable accommodation[ ], since you sustained your

                                3


       injury on February 8, 1996. You have missed
       considerable time due to a restricted work schedule
       and while undergoing treatment. Since returning to
       work on September 30, 1996, you have been unable to
       perform the duties of a Box Maker. We had attempted
       to place you in other temporary positions which were
       consistent with your medical restrictions but had been
       periodically informed by you that even that work was
       too strenuous and could not be performed by you.

       Most recently you have been asked to perform [light
       duty work]. However, this work is not of a permanent
       nature and we can no longer offer that employment to
       you.

       We have also received and reviewed documentation
       from your treating physicians concerning your
       prognosis. Dr. Pollock advises that you "will be unable
       to work at his present position as a Box Maker in the
       foreseeable future" and Dr. Kuhns has advised that
       you will "not be able to resume work duties as a Box
       Maker due to your lower back condition." Neither has
       suggested any accommodation to allow you to continue
       to be gainfully employed.

       As we cannot accommodate you within the Box Maker
       position or any other vacant position and have no
       position that meets your limited physical capabilities,
       we have no choice but to discontinue your
       employment.

App. at 658.

Buskirk was given this termination letter at a meeting
with members of Apollo Metals’ management and two union
representatives. Deborah Schnabel of the Human
Resources Department, the author of the letter, presided
over the meeting and explained that Buskirk was being
terminated from Apollo Metals. Buskirk’s union filed a
grievance on his behalf, and as a result, Apollo Metals
changed Buskirk’s status so that he would no longer be
considered terminated, but rather would be considered on
a leave of absence allowing him to accrue workers’
compensation benefits.

                                4


On June 25, 1997, Buskirk’s union presented Apollo
Metals with a non-exhaustive list of six different job
classifications that it claimed Buskirk was able to perform.
On this same date, Buskirk received a note from Dr. Mark
Kuhns stating that his lifting restrictions were being
increased (to twenty pounds frequently, and to a maximum
of thirty pounds occasionally) and that Buskirk could work
eight hours a day, five days a week. However, Apollo Metals
responded that although Buskirk’s condition was
improving, he still could not perform any work at Apollo
Metals. Apollo Metals contends that it did not attempt to
place Buskirk in another position prior to December 10,
1998, because it believed Buskirk had not received a full
medical release to return to work until that date. On
December 10, 1998, Buskirk’s treating physician released
him to work with a "permanent restriction" on lifting of
forty pounds. App. at 655. After this date, Buskirk was
placed in the next available position consistent with his
permanent forty pound lifting restriction, that of a polisher,
on February 22, 1999. He remains in this position to this
day.

Buskirk’s union representatives took responsibility for
informing Buskirk of any vacancies at Apollo Metals and
provided Apollo Metals with the results of Buskirk’s medical
evaluations throughout this time period. Buskirk contends
that he was medically released to full work no later than
March 2, 1998 when an evaluation by an independent
medical examiner gave Buskirk a release to return to full-
time, medium work with a weight restriction of fifty pounds
-- even more generous than the December 10, 1998
medical report. However, a medical evaluation entered by
Buskirk’s treating physician one day later, March 3, 1998,
stated that Buskirk "continues to improve but is not yet
ready to return to regular work." App. at 654.

Prior to his reinstatement, Buskirk negotiated a
settlement of his workers’ compensation claim with PMA for
$120,000, a figure that largely represents future lost
earnings. After Apollo Metals reinstated Buskirk, PMA
discontinued settlement negotiations and the agreement
was not executed.

                                5


B. Procedural History

On January 15, 1999, shortly before his reinstatement,
Buskirk filed a complaint in the United States District
Court for the Eastern District of Pennsylvania alleging
disability discrimination in violation of the ADA and PHRA,
and tortious interference with a contract. In his complaint,
Buskirk alleged that he was a qualified person with a
disability, and that Apollo Metals violated the ADA and
PHRA by not accommodating his disability and by
unlawfully terminating him.

Upon completion of discovery, Apollo Metals filed a
motion for summary judgment. In response, Buskirk
alleged that even if he did not have an actual disability (an
impairment that substantially limited major life activities),
he was nevertheless disabled under the ADA because Apollo
Metals regarded him as disabled and/or because he had a
record of impairment.

The District Court granted Apollo Metals’ motion in part
and denied it in part. See Buskirk v. Apollo Metals, 116 F.
Supp. 2d 591 (E.D.Pa. 2000). The District Court granted
the motion with respect to Buskirk’s claims that were based
on actual disability and record of impairment. The District
Court concluded that Buskirk was not actually disabled
under the statute because he had failed to prove that he
was substantially limited in a major life activity by his
physical impairment. Id. at 600. The District Court also
concluded that Buskirk had not proven that he had a
record of impairment that substantially limited a major life
activity, another category of disability under the ADA. Id.
However, the court denied the motion with respect to
Buskirk’s claim that he was "regarded as" disabled, finding
that genuine issues of material fact existed to support a
conclusion that Apollo Metals erroneously regarded Buskirk
as disabled. Id. at 601-02. The District Court also denied
the motion with respect to the tortious interference claim,
concluding that Apollo Metals had introduced no evidence
to support a finding of an underlying financial interest to
support a privilege to interfere. Id. at 604.

A jury trial began on August 20, 2001, and two days
later, Buskirk concluded the presentation of his case. At

                                6


that point, Apollo Metals moved for judgment as a matter of
law pursuant to Federal Rule of Civil Procedure 50(a). After
hearing argument on the motion, the District Court granted
the motion, concluding that an employer is not obligated to
provide reasonable accommodations to an employee who is
regarded as disabled but is not actually disabled. The
District Court went a step further and found that even were
Apollo Metals required to reasonably accommodate
Buskirk, it did so. Finally, the District Court found that
Buskirk did not present sufficient evidence from which a
jury could find Apollo Metals liable for tortious interference.

Buskirk timely appealed. We have jurisdiction pursuant
to 28 U.S.C. S 1291.

II.

STANDARD OF REVIEW

We exercise plenary review over the grant or denial of a
judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50(a). Northview Motors, Inc. v. Chrysler
Motors Corp., 227 F.3d 78, 88 (3d Cir. 2000). Rule 50(a)(1)
provides:

       If during a trial by jury a party has been fully heard on
       an issue and there is no legally sufficient evidentiary
       basis for a reasonable jury to find for that party on
       that issue, the court may determine the issue against
       that party and may grant a motion for judgment as a
       matter of law against that party with respect to a claim
       or defense that cannot under the controlling law be
       maintained or defeated without a favorable finding on
       that issue.

Fed. R. Civ. P. 50(a)(1).

A district court should grant this motion only if"viewing
the evidence in the light most favorable to the nonmovant
and giving it the advantage of every fair and reasonable
inference, there is insufficient evidence from which a jury
reasonably could find liability." Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). "[A] directed
verdict is mandated where the facts and the law will

                                7


reasonably support only one conclusion." McDermott Int’l,
Inc. v. Wilander, 498 U.S. 337, 356 (1991). We apply the
same standard as the district court.

III.

DISCUSSION

A. ADA & PHRA

The Supreme Court recently has stated that the primary
purpose of the ADA is "to diminish or to eliminate the
stereotypical thought processes, the thoughtless actions,
and the hostile reactions that far too often bar those with
disabilities from participating fully in the Nation’s life,
including the workplace." US Airways, Inc. v. Barnett, 122
S.Ct. 1516, 1522-23 (2002). In order to make out a prima
facie case of disability discrimination under the ADA and
PHRA1, a plaintiff must establish that s/he (1) has a
"disability," (2) is a "qualified individual," and (3) has
suffered an adverse employment action because of that
disability. Gaul v. Lucent Techs. Inc., 134 F.3d 576, 580 (3d
Cir. 1998).

1. Regarded As Disabled

The ADA defines "disability," the first requirement of a
discrimination case, as,

       (A) a physical or mental impairment that substantially
       limits one or more of the major life activities of such
       individual;
       (B) a record of such an impairment; or

       (C) being regarded as having such an impairment.

42 U.S.C. S 12102(2). Because Buskirk does not appeal the
_________________________________________________________________

1. The PHRA and the ADA are "basically the same . . . in relevant
respects and ‘Pennsylvania courts . . . generally interpret the PHRA in
accord with its federal counterparts.’ " Rinehimer v. Cemcolift, Inc., 292
F.3d 375, 382 (3d Cir. 2002) (alteration in original) (quoting Kelly v.
Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)).

                                8


District Court’s rejection of his claim of an actual disability
or record of impairment, this appeal focuses solely on the
third category of disability, that of being "regarded as"
having an impairment that substantially limits a major life
activity.

The regulations addressing this category of disability
define an individual who "is regarded as having such an
impairment" as one who,

       (1) Has a physical or mental impairment that does not
       substantially limit major life activities but is treated by
       a covered entity as constituting such limitation;

       (2) Has a physical or mental impairment that
       substantially limits major life activities only as a result
       of the attitude of others toward such impairment; or

       (3) Has none of the impairments defined in paragraph
       (h)(1) or (2) of this section but is treated by a covered
       entity as having a substantially limiting impairment.

29 C.F.R. S 1630.2(l) (2001). Buskirk’s claim is grounded in
the first definition because he argues that he had a
physical impairment that limited his ability to perform
some work, but did not substantially limit any major life
activities, and that Apollo Metals regarded that impairment
as one that limited major life activities.

In order to determine whether Apollo Metals regarded
Buskirk as disabled, we must consider the information
Apollo Metals had regarding Buskirk’s condition and its
response to that information. In Olson v. General Electric
Astrospace, 101 F.3d 947, 954-55 (3d Cir. 1996), we held
that a reasonable factfinder could have found that the
employer perceived the employee to be disabled where the
evidence showed that a supervisor knew of the employee’s
illness and hospitalizations and that this knowledge
factored into its hiring decision. "[E]ven an innocent
misperception based on nothing more than a simple
mistake of fact as to the severity, or even the very
existence, of an individual’s impairment can be sufficient to
satisfy the statutory definition of a perceived disability."
Deane v. Pocono Med. Ctr., 142 F.3d 138, 144 (3d Cir.
1998) (en banc). Further, in another "regarded as" case, we

                                9


held that the analysis "focuses not on [the plaintiff] and his
actual disabilities, but rather on the reactions and
perceptions of the persons interacting or working with
him." Kelly v. Drexel Univ., 94 F.3d 102, 108-09 (3d Cir.
1996) (stating that the "mere fact that an employer is aware
of an employee’s impairment is insufficient to demonstrate
. . . that the employer regarded the employee as disabled").

"[I]n general, an employer’s perception that an employee
cannot perform a wide range of jobs suffices to make out a
‘regarded as’ claim." Taylor v. Pathmark Stores, Inc., 177
F.3d 180, 188 (3d Cir. 1999). In Taylor, we concluded that
Taylor’s employer regarded Taylor as disabled due to its
conclusion, based on a mistaken interpretation of his
medical records, that Taylor was unable to perform a wide
range of jobs, not just his previous position. See id. In that
case, we stated that "if an impairment at a certain level of
severity would constitute a disability, then it follows that an
employer who perceives an employee as having such an
impairment perceives the employee as disabled." Id.; see
also Sutton v. United Airlines, Inc., 527 U.S. 471, 492 (1999)
(stating that a "regarded as" plaintiff is required to show
that the employer regards him or her as unable to work in
a broad class of jobs).

Here, Apollo Metals terminated Buskirk because it
believed that Buskirk was "not presently able and not
expected to be able to perform [his] former position, with or
without reasonable accommodation[ ], since[he] sustained
[his] injury," and that it had "no position that meets [his]
limited physical capabilities." App. at 658. The company
was familiar with Buskirk’s injury and medical treatment
and surmised that he was unable to perform any work.
Several vacancies in positions other than a box maker
became available after Buskirk’s release from work and
Apollo Metals concluded that Buskirk was unable to work
in any of those positions. In a letter to the union dated July
3, 1997, Schnabel wrote that "[a]lthough[Buskirk]’s
condition has shown improvement through increased lifting
capacity, there still exists a concern about his ability to
perform any of the job classifications. The job
classifications state lifting requirements but also general
physical activity." App. at 666. These perceptions support

                                10


Buskirk’s contention that Apollo Metals regarded him as
disabled.

Moreover, on appeal Apollo Metals no longer appears to
dispute that it regarded Buskirk as disabled but instead
focuses its argument on its obligations to a "regarded as"
employee. Because the evidence shows that Apollo Metals
perceived Buskirk to be unable to perform any of its
positions based on his medical condition, Buskirk
presented sufficient evidence to satisfy the first prong of a
discrimination case under the ADA and PHRA.

2. Qualified Individual

In order to pass the second prong of the test for disability
discrimination, a plaintiff must prove that s/he is a
"qualified individual." "Qualified individual" is defined as
one "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.
S 12111(8). The EEOC regulations divide this inquiry into
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. 29 C.F.R.S1630.2(m).

Neither party disputes that Buskirk satisfied the first
part of the inquiry in that he had the qualifications to
perform the positions sought. Additionally, both parties
agree that Buskirk could not return to his former position
as a box maker and thus could not perform the essential
functions of that job without reasonable accommodation.
Buskirk claims that the reasonable accommodation that he
requested, and to which he was entitled, was transfer upon
vacancy to one of the six positions listed in the union’s
June 1997 letter.

The ADA provides that reasonable accommodations
include, inter alia, "job restructuring, part-time or modified
work schedules, [and] reassignment to a vacant position."
42 U.S.C. S 12111(9)(B). The duty to provide a reasonable
accommodation is subject to certain limitations. For
example, an employer is not required to provide a
reasonable accommodation if it would impose an "undue

                                11


hardship," 29 C.F.R. S 1630.2(p), if it would pose a "direct
threat" to the safety of the employee or others, 29 C.F.R.
S 1630.15(b)(2), see Chevron U.S.A. Inc. v. Echazabal, 122
S.Ct. 2045, 2049 (2002), or if to do so would conflict with
seniority rules, see US Airways, Inc. v. Barnett , 122 S.Ct.
1516 (2002).

However, the courts of appeals are divided as to whether
the employer is obliged to provide reasonable
accommodations to a "regarded as" plaintiff, and we have
not answered the question directly.2 Once again, we will
_________________________________________________________________

2. In Deane v. Pocono Medical Center, 142 F.3d 138, 148-49 n.12 (3d Cir.
1998) (en banc), we examined, but did not decide, whether an employer
is required to provide reasonable accommodations to an employee it
perceives as disabled and reviewed the primary arguments on each side
of the debate. On the side of requiring the provision of reasonable
accommodations, we noted that the plain language of the ADA does not
differentiate between "regarded as" plaintiffs and plaintiffs who are
actually disabled, id., and cited School Board of Nassau County v. Arline,
480 U.S. 273, 288-89 (1987), where the Supreme Court held that
employers have an obligation to provide reasonable accommodations to
employees who are regarded as disabled under the Rehabilitation Act, 29
U.S.C. S 701 et seq. In Arline, the Supreme Court stated that by
protecting "regarded as" employees from discrimination under the
Rehabilitation Act, Congress acknowledges that "society’s accumulated
myths and fears about disability and disease are as handicapping as are
the physical limitations that flow from actual impairment." Id. at 284.
Finally, in Deane we recognized the plaintiff ’s argument that "failure to
mandate reasonable accommodations for ‘regarded as’ plaintiffs would
undermine the role the ADA plays in ferreting out disability
discrimination in employment." 142 F.3d at 148 n.12.

On the other side of the debate, we "acknowledge[d] the considerable
force" of the argument that mandating reasonable accommodations
would both permit healthy employees to demand changes in their
working conditions through the threat of litigation and "create a windfall
for legitimate ‘regarded as’ disabled employees who, after disabusing
their employers of their misperceptions, would nonetheless be entitled to
accommodations that their similarly situated co-workers are not, for
admittedly non-disabling conditions." Id. at 149 n.12; see also Taylor v.
Pathmark Stores, Inc., 177 F.3d 180, 196 (3d Cir. 1999) (noting that "it
seems odd to give an impaired but not disabled person a windfall
because of her employer’s erroneous perception of disability, when other
impaired but not disabled people are not entitled to accommodation")

                                12


reserve the answer to this question for a future case
because, as we explain forthwith, we conclude that Apollo
Metals provided Buskirk with reasonable accommodations.
Having reached this conclusion, we need not answer the
difficult question of whether Apollo Metals was obligated to
do so.

3. Reasonable Accommodations

Apollo Metals provided Buskirk with a series of light duty
assignments, medical leaves of absence, and reduced hours
from the date of his original injury in February 1996
through his termination on May 30, 1997. By May 30,
1997, Apollo Metals had provided these light duty positions
and reduced hours for almost fifteen months. Although
Apollo Metals initially terminated Buskirk, after negotiation
of a grievance filed on behalf of Buskirk by his union,
Apollo Metals eventually changed Buskirk’s status to that
of a leave of absence, during which period Buskirk was
entitled to receive workers’ compensation benefits.

The ADA does not require an employer to create a new
position to accommodate an employee with a disability. See
Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)
(interpreting analogous section of Rehabilitation Act). Nor is
an employer required to transform a temporary light duty
position into a permanent position. See Mengine v. Runyon,
114 F.3d 415, 418 (3d Cir. 1997) (interpreting analogous
section of Rehabilitation Act). Buskirk does not dispute that
Apollo Metals need not have created such a position, but
argues that there were vacancies in less strenuous
positions to which he should have been transferred after
_________________________________________________________________

(citing Deane, 142 F.3d at 149 n.12). We did not decide the issue in
either Deane or Taylor.

Thus far, the Fifth, Sixth, and Eighth Circuits have held that "regarded
as" employees are not entitled to reasonable accommodations. See Weber
v. Strippit, Inc. 186 F.3d 907, 916-17 (8th Cir. 1999), cert. denied, 528
U.S. 1078 (2000); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir.
1999); Newberry v. E. Tex. State Univ., 161 F.3d 276, 280 (5th Cir.
1998). The First Circuit has held that "regarded as" employees are
entitled to reasonable accommodations. Katz v. City Metal Co., 87 F.3d
26 (1st Cir. 1996).

                                13


May 30, 1997, the date of the letter that stated he was
being terminated.

However, prior to the medical release on December 10,
1998, Buskirk’s own doctors stated that he could not
return to permanent work. His treating physician, Dr. Barry
Pollack, stated on September 30, 1996, that Buskirk could
only perform light duty work for four hours a day and that
he was limited to lifting no more than ten pounds, and
reiterated these limitations on October 28, 1996. None of
the doctors’ notes written prior to the termination in May
1997 (changed to leave of absence) stated that he could
perform full-time, permanent work.

The medical reports that were issued subsequent to the
May 1997 letter were not entirely consistent in their
articulation of Buskirk’s limitations, but together they
demonstrate that Buskirk did not receive medical leave to
return to regular work before December 10, 1998. On June
25, 1997, Buskirk’s chiropractor, Dr. Mark Kuhns, wrote
that Buskirk’s work restrictions had been lightened and
that he could lift a maximum of thirty pounds occasionally,
twenty pounds frequently, and could work eight hours a
day, five days a week. Although this evaluation showed
signs of improvement, Apollo Metals advised the union by
letter on July 3, 1997: "there still exists a concern about
his ability to perform any of the job classifications. The job
classifications state lifting requirements but also general
physical activity. Since [Buskirk] does not have a full
release his status remains as worker[s’] compensation
leave." App. at 666.

Buskirk argues that he was released to work on March 2,
1998 when Dr. Dane Wukich, an independent medical
examiner, determined that Buskirk was "capable of
returning to medium work" and was "capable of working
full time with the restriction of 50 pounds." App. at 673.
However, Buskirk was examined one day later by his
treating physician, Dr. Pollack, who stated that Buskirk
"continues to improve but is not yet ready to return to
regular work." App. at 654. Dr. Pollack did not release
Buskirk to return to work until December 10, 1998, when
he wrote that Buskirk was "released with a 40 lb. lifting
limit. This is a permanent restriction." App. at 655. After

                                14


receiving this release, Apollo Metals placed Buskirk in the
first vacancy that arose in one of the less strenuous
positions he requested, thereby reasonably accommodating
Buskirk in a position for which he was physically qualified.3
Arguably, the evidence shows that Buskirk did not meet the
second prong of the EEOC’s definition of a "qualified
individual," but the parties have focused instead on the
obligation to provide accommodation.

Nor could a reasonable jury conclude that Apollo Metals
did not engage in the interactive process with Buskirk.
From the date of injury until the date that Buskirk
resumed working at Apollo Metals, representatives of Apollo
Metals frequently communicated with Buskirk’s union
representative, Thomas Novack, regarding Buskirk’s ability
to return to work. Novack testified that he was in an
"ongoing dialogue" with Apollo Metals and that Apollo
Metals cooperated with him in his efforts on behalf of
Buskirk. App. at 405. Apollo Metals allowed and expected
Novack to bid on vacancies on behalf of Buskirk and
evaluated Buskirk’s ability to work in light of his medical
evaluations as transmitted by Buskirk or his union
representatives.

Buskirk argues that the question of whether Apollo
Metals reasonably accommodated him is a question of fact
that should have gone to the jury and was not appropriate
for disposition on a Rule 50 motion. Generally, the question
of whether a proposed accommodation is reasonable is a
question of fact. See Hovsons, Inc. v. Township of Brick, 89
F.3d 1096, 1101 (3d Cir. 1996). However, pursuant to Rule
50, the District Court should enter judgment as a matter of
law "[i]f during a trial by jury a party has been fully heard
_________________________________________________________________

3. Although Apollo Metals does not raise this as a defense, it is of some
interest that the Supreme Court recently upheld an EEOC regulation
requiring that an " ‘individual shall not pose a direct threat to the health
or safety of the individual or others in the workplace.’ " Chevron U.S.A.
Inc. v. Echazabal, 122 S.Ct. 2045, 2049 (2002) (quoting 29 C.F.R.
S 1630.15(b)(2)). A direct threat means a"significant risk of substantial
harm to the health or safety of the individual or others that cannot be
eliminated or reduced by reasonable accommodations." 29 C.F.R.
S 1630.2(r) (adding that the assessment should consider the duration of
the risk and the nature, severity, and likelihood of the potential harm).

                                15


on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on that
issue." Fed. R. Civ. P. 50(a)(1). Here, viewing the evidence in
the light most favorable to Buskirk, we agree with the
District Court that a reasonable jury could not have found
that Apollo Metals did not reasonably accommodate
Buskirk. In addition, because Apollo Metals has reinstated
Buskirk and no longer misperceives his medical condition,
we see no need for any additional remedies. See Deane, 142
F.3d at 149 n.12 ("If it turns out that a ‘regarded as’
plaintiff who cannot perform the essential functions of her
job is not entitled to accommodation . . ., he or she need
not necessarily be without remedy. The plaintiff still might
be entitled to injunctive relief against future
discrimination.") (citations omitted). Thus, whether or not
Apollo Metals was required to provide Buskirk with a
reasonable accommodation, it did so and Buskirk’s
challenge under the ADA fails.

B. Tortious Interference

In addition to his claim for discrimination based on
disability, Buskirk, who had been receiving workers’
compensation benefits, negotiated a settlement between
himself and PMA, Apollo Metals’ insurance carrier, for
future wage loss and future medical benefits that would
have allowed him to continue to pursue his rights and
remedies under the ADA and PHRA. Buskirk claims that
Apollo Metals tortiously interfered with the resolution of
this settlement, resulting in PMA’s withdrawal of the
settlement offer. The settlement would have provided
Buskirk with approximately $120,000. Apollo Metals
responds that it was privileged to interfere with the
prospective settlement contract because it had a financial
interest in the settlement and that it acted properly in
protecting that interest.

When Apollo Metals originally contested this claim in its
motion for summary judgment, the District Court denied
the motion stating:

       Apollo has failed to cite to any evidence in the record
       that supports the finding of an underlying financial

                                16


       interest upon which its alleged privilege is based.
       Instead, Apollo simply states that it might have
       incurred higher insurance premiums in the future or
       might have been held responsible for the actual
       settlement. Such statements, unadorned by any factual
       support in the record, do not suffice to meet Apollo’s
       burden as the moving party.

Buskirk, 116 F. Supp. 2d at 604. However, after the
conclusion of Buskirk’s case-in-chief, the District Court
agreed with Apollo Metals and granted the Rule 50 motion
on its behalf with respect to the claim of tortious
interference.

In order to prevail on a claim of intentional interference
with contractual or prospective contractual relations, a
plaintiff must prove:

       (1) the existence of a contractual, or prospective
       contractual relation between itself and a third party;

       (2) purposeful action on the part of the defendant,
       specifically intended to harm the existing relation, or to
       prevent the prospective relation from occurring;

       (3) The absence of a privilege or justification on the
       part of the defendant;

       (4) the occasioning of actual legal damage as a result
       of the defendants’ conduct; and

       (5) for prospective contracts, a reasonable likelihood
       that the relationship would have occurred but for the
       interference of the defendant.

Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d
494, 530 (3d Cir. 1998) (citations omitted).

The only factor that Apollo Metals disputes is the absence
of a privilege or justification. Apollo Metals argues that it
was privileged to interfere because its insurance premiums
in the future would have been higher had the settlement
gone forward. Although some jurisdictions consider the
presence of a privilege to be an affirmative defense that the
defendant must prove, Pennsylvania places the burden on
the plaintiff, as part of his or her case in chief, to prove the
absence of any privilege or justification on the part of the

                                17


defendant. See Triffen v. Janssen, 626 A.2d 571, 574 n.3
(Pa. Super. Ct. 1993).

Pennsylvania has adopted portions of the Restatement
(Second) of Torts with respect to intentional interference
with contractual relations, specifically section 769, which
states:

       One who, having a financial interest in the business of
       a third person[,] intentionally causes that person not to
       enter into a prospective contractual relation with
       another, does not interfere improperly with the other’s
       relation if he

       (a) does not employ wrongful means and

       (b) acts to protect his interest from being prejudiced
       by the relation.

Schulman v. J.P. Morgan Inv. Mgmt., Inc., 35 F.3d 799, 809
(3d Cir. 1994) (emphasis and alteration in original) (quoting
Restatement (Second) of Torts S 769 (1979)). The
Restatement further defines "financial interest" as an
       interest in the nature of an investment. A part owner
       of the business, as for example, a partner or
       stockholder, has at least an interest of this nature. A
       bondholder or other creditor may also have it. On the
       other hand, the interest of a person who looks to a
       third person for business and will lose business
       opportunities if that person enters into the business
       relations involved is not a financial interest under the
       rule stated in this Section.

Restatement (Second) of Torts S 769, cmt. a (1979).

At trial, a former claims handler for PMA, Jean Marie
Keenan, presented the only testimony regarding the effect a
settlement might have on a policyholder such as Apollo
Metals. The question before us is whether that evidence
was sufficient to support the Rule 50 motion. The relevant
evidence adduced at trial summarizes as follows:

       (1) PMA is the insurance company for Apollo Metals
       for its workers’ compensation insurance.

                                18


       (2) Apollo Metals paid the premiums to PMA with
       regard to the workers’ compensation provided to its
       employees.

       (3) "The calculation of the premium does include
       something as far as paid claims," as well as"something
       with regard to reserves established" for the payment of
       claims and incurreds (the sum of the amount paid on
       a claim plus the reserve amount).

App. at 571-74.

Thus this evidence shows that Apollo Metals paid the
premiums for its workers’ compensation insurance and that
the amount of those premiums may depend in part on
claims paid.

However, Keenan also testified that she did not know
whether $120,000 was a sizeable claim, nor did she know
how often PMA establishes its premiums:

       Q. Do you know how often the amounts, the premium
       is established by a company like PMA?

       A. I don’t know.

       . . . .

       Q. Can you indicate whether a $120,000 claim is a
       sizeable claim based upon your experience?

       . . . .

       A. I don’t believe my level of experience with settling
       claims would allow me to answer that.
App. at 575-76.

The comments and illustrations to Section 769 of the
Restatement (Second) of Torts regarding what constitutes a
financial interest list financial interests in the nature of
investments, such as partners, stockholders, creditors, and
parent and subsidiary relationships. In Schulman , we found
the interest of a mortgage lender to fall within the scope of
the privilege. 35 F.3d at 809. No case has yet addressed the
privilege or absence of privilege of an insured interfering
with a settlement between its insurance company and one
of its employees for fear of higher premiums. Although more

                                19


tenuous, arguably an insured who hopes that its premiums
do not rise is somewhat like a stockholder who hopes that
the company in which it has invested does not lose value.

Regardless of whether or not an insured can ever have a
financial interest sufficient to interfere in a settlement
between its insurer and an employee, the facts presented in
the District Court do not establish the presence or absence
of such a financial interest here. Although Keenan testified
that the payment of claims is one factor that is included in
the calculation of a premium, she did not know whether or
not the payment of $120,000 to Buskirk would have
affected Apollo Metals’ premium for its entire workers’
compensation insurance policy. Keenan’s testimony was not
strong for either party but the burden of proof lay with
Buskirk to prove the absence of any privilege or
justification on the part of Apollo Metals to interfere and
thus, the absence of any financial interest on the part of
Apollo Metals. Although Buskirk succeeded in casting some
doubt as to the existence of such an interest, we conclude
that the District Court did not err in concluding that
Buskirk had failed to produce evidence sufficient to
demonstrate that Apollo Metals had no financial interest in
this transaction.

C. Evidentiary Issues

1. Attorney Client Privilege

Buskirk argues that the District Court abused its
discretion in sustaining Apollo Metals’ objection to a
communication between counsel for Apollo Metals and a
PMA insurance adjuster on the ground of attorney-client
privilege, which was relevant to the tort of interference with
the contract. The challenged communication was an entry
in a log made by the PMA insurance adjuster reflecting the
substance of a phone call from an attorney for Apollo
Metals. The entry indicates that the attorney told the PMA
adjuster that Apollo Metals did not want Buskirk back and
that it was "not going to offer anything on discrimination
claim" because it did not think Buskirk had a good case.
App. at 688. The note states that the attorney told the
adjuster that she "can settle out [workers’ compensation]
claim." App. at 688.

                                20


We exercise plenary review over a district court’s
determination on the legal issues underlying a claim of
attorney-client privilege, and review the underlying facts for
clear error. See United States v. Inigo, 925 F.2d 641, 656
(3d Cir. 1991). The District Court held the communications
between the adjuster and Apollo Metals’ counsel to be
privileged. Buskirk argues that even if we conclude an
attorney-client privilege exists, Apollo Metals waived its
privilege over this communication by failing to object
earlier.

However, we need not answer either contention because,
even if this communication was not privileged or if the
privilege had been waived, the exclusion of it by the District
Court was harmless error. The communication from Apollo
Metals’ attorney to the insurance company instructed the
insurance company to proceed with the proposed
settlement. Thus, this document could not have supported
Buskirk’s claim that Apollo Metals tortiously interfered with
the proposed settlement and prevented that settlement from
occurring.4

2. Expert Testimony

Buskirk contends that the District Court abused its
discretion in limiting the testimony of Buskirk’s expert,
Jasen Walker, Ed.D., regarding Apollo Metals’ perception of
Buskirk as disabled. In fact, the District Court permitted
Walker to testify about an employer’s obligations under the
ADA and whether he believed Apollo Metals regarded
Buskirk as disabled. App. at 366-69. However, the District
Court did not permit Walker to testify about the results of
the vocational testing that Walker performed on Buskirk
after Buskirk had already returned to work. The District
Court refused to permit such testimony because it fell "well
after the fact" and did not address the relevant time period.
App. at 367.
_________________________________________________________________

4. Because of our conclusion of harmless error, we need not decide
whether there is an insured-insurer privilege under federal law. See
Pearson v. Miller, 211 F.3d 57, 67 (3d Cir. 2000) (citing with approval
Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust
Corp., 5 F.3d 1508, 1514 (D.C. Cir. 1993) ("Federal courts have never
recognized an insured-insurer privilege as such.")).

                                21


The District Court did not abuse its discretion in refusing
to allow this testimony. We review a district court’s
evidentiary rulings for abuse of discretion. Abrams v.
Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir. 1995). Because
the excluded testimony concerned Buskirk’s vocational
abilities during a time period that was not relevant to the
issues presented in this case, the District Court did not
abuse its discretion by excluding it.

IV.

CONCLUSION

For the reasons set forth, we will affirm the District
Court’s grant of judgment as a matter of law on behalf of
Apollo Metals.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                22
