                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2005

Spencer v. Verizon Connected
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4074




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 04-4074
                                  ________________

                              WILBERT J. SPENCER, JR.

                                                      Appellant

                                            v.

                     VERIZON CONNECTED SOLUTIONS, INC.
                              ________________

                    On Appeal From the United States District Court
                               For the District of Delaware
                              (D.C. Civ. No. 03-cv-00031)
                      District Judge: Honorable Gregory M. Sleet
                                   ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    June 6, 2005

             Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                                  (Filed: July 7, 2005)

                                  ________________

                                      OPINION
                                  ________________

PER CURIAM

      Wilbert J. Spencer, Jr. Appeals pro se from the entry of summary judgment in

favor of the appellee on his claim of employment discrimination. After carefully

reviewing the record, we agree with the District Court that summary judgment for
Verizon was appropriate.

       We assume that the parties are familiar with the background, which is fully

described in the District Court’s Memorandum Opinion. We merely summarize the

pertinent facts here. Spencer was employed by appellee Verizon Connected Solutions,

Inc. (Verizon) from 1998 until 2001 as a Multi-Media Services Technician (“MMST”).

As an MMST, Spencer’s duties included installing, maintaining and repairing multi-

media equipment for Verizon’s customers. The physical requirements of the position

included crawling into tight spaces, climbing telephone poles, and moving and lifting

equipment. According to Verizon, an essential function of the position also required the

ability to lift up to 100 pounds. In December 1999, Spencer injured his back in a slip-

and-fall accident at work. He was diagnosed with a herniated disc and was temporarily

restricted by his doctor from bending repetitively or lifting more than 25 pounds. Spencer

was subsequently examined by another physician who concluded that a person with a

herniated disc would be permanently restricted from repetitively lifting over 50 pounds.

Spencer was administratively discharged by Verizon on January 12, 2001.

       After receiving a “right to sue” letter from the Equal Employment Opportunity

Commission (“EEOC”), Spencer filed this suit pro se in 2003. Spencer’s complaint

asserted that Verizon violated the Americans with Disabilities Act (“ADA”) both when it

terminated him due to his disability and when it failed to provide him with reasonable

accommodation. After completion of discovery, the District Court granted Verizon’s

motion for summary judgment on all claims, dismissed Spencer’s complaint, and denied

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four of Spencer’s pending discovery motions as moot. Spencer timely filed this appeal.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a grant of

summary judgment and apply the same test as did the District Court. See Deane v.

Pocono Med. Ctr., 142 F.3d 138, 142 n.3 (3d Cir. 1998). We must determine whether the

record shows that there was no genuine issue of material fact and that Verizon was

entitled to summary judgment as a matter of law. See Fed. R. Civ. P. 56(c).

       In order to state a prima facie case of discrimination under the ADA, a plaintiff

must establish that he or she (1) is “disabled” as defined by the ADA; (2) is otherwise

qualified to perform the essential functions of the job, with or without reasonable

accommodations by the employer; and (3) has suffered an otherwise adverse employment

decision as a result of discrimination. Gaul v. Lucent Technologies, Inc. 134 F.3d 576,

580 (3d Cir. 1998). To qualify as “disabled,” a plaintiff must demonstrate that: 1) he has

a physical or mental impairment that substantially limits one or more of his major life

activities; or 2) he has a record of such an impairment; or 3) he was regarded as having

such an impairment. See 42 U.S.C. § 12102(2). On appeal, the parties do not contest that

Spencer’s back injury constitutes a physical impairment. We thus consider whether this

impairment substantially limited Spencer in a major life activity.

       “Major life activities” are those activities that are of central importance to daily

life. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002). EEOC

regulations list “caring for oneself, performing manual tasks, walking, seeing, hearing,

                                              3
speaking, breathing, learning, and working” as examples of major life activities. See 29

C.F.R. § 1630.2(i). Spencer fails to allege that his back injury substantially limits any

major life activity. Even if Spencer had argued that his back injury affected his work as

an MMST, his inability to perform this particular job would not constitute a substantial

limitation in the major life activity of “working,” and he has not alleged that he is unable

to work in a class of jobs or a broad range of jobs. See Deane, 142 F.3d at 144 n.7; Tice

v. Ctr. Area Transp. Auth., 247 F.3d 506, 512-13 (3d Cir. 2001). Indeed, Spencer

asserted several times that he could work despite his back injury, and the record indicates

that Spencer was employed elsewhere at various times throughout this litigation. Spencer

thus could not show that he was disabled within the meaning of 42 U.S.C. § 12102(2)(A).

          Alternatively, Spencer asserts that he was able to return to his MMST position in

full capacity but was prevented from doing so by Verizon. Spencer appears to allege that,

although he was not actually disabled, he was regarded as being disabled by Verizon. See

42 U.S.C. § 12102(2)(C). We agree with the District Court that Spencer cannot make a

prima facie showing that Verizon regarded him as being disabled. See Deane at 142 F.3d

at 143.

          Because Spencer was unable to make a prima facie showing that he was disabled,

Verizon was entitled to judgment as a matter of law. We find no abuse of discretion in

the District Court’s denial of Spencer’s discovery motions, as any information crucial to

establishing a prima facie case would have been within Spencer’s knowledge. See In re

Fine Paper Antitrust Litig., 685 F.2d 810, 817-18 (3d Cir. 1982). Similarly, the

                                               4
accessibility of this information rendered the appointment of counsel unwarranted. See

Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993).

      For the foregoing reasons, we will affirm the District Court’s judgment.




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