Newman v. GHS Osteopathic ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
7-17-1995
Newman v GHS Osteopathic
Precedential or Non-Precedential:
Docket 94-2122
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Recommended Citation
"Newman v GHS Osteopathic" (1995). 1995 Decisions. Paper 187.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-2122
JEFFREY B. NEWMAN
v.
GHS OSTEOPATHIC, INC., PARKVIEW HOSPITAL DIVISION
Jeffrey B. Newman,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action. No. 94-0060)
Submitted under Third Circuit LAR 34.1(a)
June 27, 1995
BEFORE: MANSMANN, GREENBERG, and SAROKIN, Circuit Judges
(Filed: July 17, 1995)
George D. Walker, Jr.
Donna E. Baker
Larry Pitt & Associates
1918 Pine Street
Philadelphia, PA 19103
Attorneys for Appellant
A. James Johnston
Jonathan B. Sprague
Sidney R. Steinberg
Post & Schell
1800 JFK Boulevard
19th Floor
Philadelphia, PA 19103
Attorneys for Appellee
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OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
In this case under the Americans with Disabilities Act,
42 U.S.C. §§ 12111-12117 (ADA), Jeffrey B. Newman appeals from
the district court's October 20, 1994 order entering judgment
against him and in favor of GHS Osteopathic, Inc.-Parkview
Hospital Division, following a bench trial. The appeal raises
significant issues regarding compliance with discovery
obligations and the burden of proof under the ADA. We will
affirm.
I.
We largely draw our statement of the facts from the
district court's opinion. Prior to the layoff that led to this
lawsuit, Newman worked as a physical therapy aide in Parkview's
rehabilitation department. Newman suffers from a form of
nocturnal epilepsy, and he takes medication several times a day
to prevent the onset of seizures. The medication makes Newman
drowsy, and therefore he sought to combine the 30-minute lunch
break and the two 15-minute morning and afternoon breaks which
Parkview granted into one hour-long break. Newman used this hour
to nap and negate the medication's side effects. Although
2
Parkview's policy prohibited bunching the breaks, several other
employees combined them as well.
In May 1992, Kamille Sprenkle of Rehab America, an
independent contractor agency, began working with Parkview's
Director of the Rehabilitation Department to assist in
supervising and running the department. Soon thereafter, she
began enforcing the policy against combining the breaks.1 When
Newman protested that he needed to combine the time for medical
reasons, Sprenkle referred him to Jennifer Brown, Parkview's
director of human resources. Brown, in turn, told Newman that to
be exempt from the policy, he would need authorization from a
hospital physician. Brown also agreed to exempt Newman from the
policy pending the medical evaluation. App. 447. A physician
"subsequently recommended that [Newman] be allowed to continue
combining his breaks because such bunching was a reasonable
medical necessity." App. 448.
Beginning in 1992, the hospital's financial situation
began to deteriorate, and it instituted a reduction in hours for
much of its staff, including Newman. Later that year, the
hospital began planning more cuts, including layoffs. In
February 1993, Ernest Perilli, Parkview's associate executive
director of operations, determined that one full-time
nonprofessional position in the rehabilitation department should
be eliminated, and he consulted Sprenkle (who was on maternity
1
The district court found that "at a January, 1993 meeting of the
department heads, Sprenkle was told by her boss at Parkview that
the policy against combining the breaks would now be enforced."
App. 447.
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leave) for assistance. She in turn recommended that Parkview
eliminate the position of full-time physical therapy aide. Newman
was the only employee holding that position. Effective February
19, 1993, the hospital laid off Newman and six other employees.
On February 5, 1994, Newman filed a complaint against
Parkview in the district court, alleging that its decision to lay
him off constituted unlawful discrimination under the ADA.
Specifically, Newman alleged, among other things, that his layoff
resulted from Sprenkle's irritation with his medical need to
combine the breaks. He contended that "[u]pon [his] exercise of
his ability to continue his break consolidation, Ms. Sprenkle
became belligerent in attitude with him." Br. at 5. He further
supported his complaint with certain allegations of actions that
occurred after the layoff, which he contended demonstrated that
Parkview's proffered reasons for his layoff were pretextual.2
During pretrial discovery, Newman propounded
interrogatories on Parkview seeking identification of each person
Parkview believed had knowledge of his claims and each person it
intended to call at trial. Newman also sought to learn the
2
For instance, Newman says he was told he could take a part-time
position as a physical therapy aide without benefits but that he
would have to bump his friend out of the position. The district
court found that Newman did not take the position because he did
not want to cause his friend to be laid off. Newman also points
out that soon after his one-year right to recall had expired, a
part time aide was given a full time position. The district
court attributed this latter development to the fact that
Parkview had hired a new independent contractor to supply
professional positions to the rehabilitation department and that
"the new contractor's aggressive marketing practices . . .
resulted in a much higher volume of patients in the
rehabilitation department at Parkview." App. 451.
4
substance of each prospective witness' testimony. Parkview
responded by, among other things, referring to its self-executing
disclosures, objecting to the scope of the interrogatory
requests, and stating that it had not identified its trial
witnesses. Its self-executing disclosures stated that:
Defendant believes the following persons are
reasonably likely to have information that
bears significantly on the claims or defenses
in this matter:
Jennifer M. Brown
Plaintiff's job performance; the
Hospital's attempts to accommodate
Plaintiff's alleged disability;
Hospital-wide layoff of February,
1993; Hospital policies and
procedures.
Kamille Sprenkle
Plaintiff's job performance; the
decision to eliminate the position
of full-time Physical Therapy Aid;
conversations with Plaintiff
regarding his request for an
accommodation.
Ernest Perilli
Hospital-wide layoffs of February,
1993; Hospital policies and
procedures.
Newman claims that he never received this list and he further
observes that the names and the substance of their testimony were
not supplied in response to his interrogatories. Therefore, he
made an in limine motion under Fed. R. Civ. P. 37 to exclude the
testimony of Perilli and Brown on the ground that their names and
the substance of their testimony were not properly disclosed
5
during pretrial discovery. On October 11, 1994, the district
court held a hearing at which it heard argument from both sides.
The court concluded that Newman received either the list itself
or the cover letter attaching the list. It further determined
that even if the latter was the case, it should have been obvious
that an enclosure was missing, and Newman should have contacted
Parkview's counsel to obtain the missing enclosure. The court
therefore denied Newman's motion, and the case proceeded to a
non-jury trial at which Perilli and Brown testified on October 11
and 12.
On October 20, the court issued a bench opinion setting
forth its findings of fact and conclusions of law. The court
found that Parkview's decision was motivated by legitimate
economic reasons arising from its deteriorating financial
situation. It further found that Sprenkle harbored no animosity
toward Newman and only reluctantly recommended that Newman's
position be eliminated. Consequently, that same day the court
entered judgment in Parkview's favor. Newman timely filed this
appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Newman's primary contention is that the district court
erred by permitting Perilli and Brown to testify. He claims that
Federal Rules of Civil Procedure 26(a), 26(e) and 37(c)(1)
required the district court to exclude their testimony.
As amended in 1993, Fed. R. Civ. P. 26(a)(1) provides
for self-executing disclosures, as it requires a party upon its
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own initiative to disclose "the name and, if known, the address
and telephone number of each individual likely to have
discoverable information relevant to disputed facts . . . ."
Rule 26(a)(3)(A) requires disclosure of "the name . . . of each
witness, separately identifying those whom the party expects to
present and those whom the party may call if the need arises."
Furthermore, Rule 26(a)(5) provides that a party may discover
additional matter through, inter alia, written interrogatories.
Under Rule 26(e), a party is under a continuing obligation to
supplement its discovery responses.
As also revised in 1993, Rule 37(c)(1) provides that a
party who
without substantial justification fails to
disclose information required by Rule 26(a)
or 26(e)(1) shall not, unless such failure is
harmless, be permitted to use as evidence at
trial, at a hearing, or on a motion any
witness or information not so disclosed. In
addition to or in lieu of this sanction, the
court, on motion and after affording an
opportunity to be heard, may impose other
appropriate sanctions.
Rule 37 is written in mandatory terms, and "is designed to
provide a strong inducement for disclosure of Rule 26(a)
material." Harlow v. Eli Lilly & Co., 1995 U.S. Dist. LEXIS 7162at *7 (N.D. Ill. May 25, 1995). Nonetheless, the rule expressly
provides that sanctions should not be imposed if substantial
justification exists for the failure to disclose, or if the
failure to disclose was harmless. Thus, the rule does not leave
district courts without discretion. See, generally, Fed. R. Civ.
P. 37(c) (Advisory Committee Notes). In fact, one court has held
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that "[n]otwithstanding Rule 37(c), the district court may be
found to have abused its discretion if [its] exclusion of
testimony results in fundamental unfairness in the trial of the
case." Orjias v. Stevenson, 31 F.3d 995, 1005 (10th Cir.)
(emphasis added), cert. denied, 115 S.Ct. 511 (1994); see also
Bronk v. Ineichen, 54 F.3d 425, 432 (7th Cir. 1995) (interpreting
Rule 37(c)(1)) (In ruling on motion to call witness not
previously identified, "'district court should consider prejudice
or surprise to opposing party, ability of party to cure
prejudice, likelihood of disruption, and moving party's bad faith
or unwillingness to comply.'") (citation omitted). For our
purposes, then, even under Rule 37, "[t]he imposition of
sanctions for abuse of discovery under Fed. R. Civ. Pro. 37 is a
matter within the discretion of the trial court." Orjias, 31
F.3d at 1005; Doe v. Johnson, 53 F.3d 1448, 1464 (7th 1995) ("We
review the district court's decision to impose Rule 37 sanctions
for abuse of discretion.").
We find no abuse of discretion here. After hearing
argument from both sides, the district court concluded that the
witnesses were identified in Parkview's self-executing
disclosures and that Newman, at a minimum, received the covering
letter referring to the list, if not the list itself. Thus, the
court concluded that Newman should have sought the list if he had
not received it. The court therefore believed that Parkview's
possible failure to supply the information in its self-executing
disclosures or to disclose it in response to Newman's
interrogatories should not have prejudiced him and therefore was
8
harmless. The court's decision is consistent with the Advisory
Committee Notes to the 1993 amendments, which state that the
"harmless violation" provision was "needed to avoid unduly harsh
penalties in a variety of situations: e.g., the inadvertent
omission from a Rule 26(a)(1)(A) disclosure of the name of a
potential witness known to all parties. . . ." Here, there is no
reason to believe that Parkview acted in bad faith; and the court
found that Newman knew the names of its witnesses and the scope
of their relevant knowledge well before trial. In the
circumstances, the district court did not abuse its discretion in
refusing to exclude the testimony.
III.
Newman next argues that the district court placed an
incorrect burden of proof upon him. As an initial matter, we
must address the district court's reliance on cases governing
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et
seq., and the Age Discrimination in Employment Act, 29 U.S.C.
§§621-34, to determine the standards for indirectly proving
disparate treatment under the ADA.3 The parties on appeal assume
3
The district court cited only Griffiths v. CIGNA Corp., 988 F.2d
457 (3d Cir.), cert. denied, 114 S.Ct. 186 (1993), a Title VII
case. But the standards enunciated under Title VII and the ADEA
for these types of cases, commonly referred to as pretext cases,
are derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817 (1973), and proceed as follows:
First, the plaintiff has the burden of
proving by the preponderance of the evidence
a prima facie case of discrimination. Second,
if the plaintiff succeeds in proving the
prima facie case, the burden shifts to the
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that this caselaw informs the standards of causation under the
ADA and we now so hold.
In the context of employment discrimination, the ADA,
ADEA and Title VII all serve the same purpose -- to prohibit
discrimination in employment against members of certain classes.
Therefore, it follows that the methods and manner of proof under
one statute should inform the standards under the others as well.
Indeed, we routinely use Title VII and ADEA caselaw
interchangeably, when there is no material difference in the
question being addressed. DiBiase v. SmithKline Beecham Corp.,
48 F.3d 719, 724 n.5 (3d Cir. 1995). And, the provisions of the
ADA itself recognize the parallel nature of the statutes, as they
provide that
[t]he powers, remedies, and procedures set
forth in [Title VII] shall be the powers,
defendant 'to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection.' [McDonnell Douglas, id.], at 802,
93 S.Ct. at 1824. Third, should the
defendant carry this burden, the plaintiff
must then have an opportunity to prove by a
preponderance of the evidence that the
legitimate reasons offered by the defendant
were not its true reasons, but were a pretext
for discrimination. Id. at 804, 93 S.Ct., at
1825.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-
53, 101 S.Ct. 1089, 1093 (1981). Of course, at the trial stage,
the only relevant question for the factfinder is whether the
plaintiff has proven intentional discrimination, and the
plaintiff can try to persuade the trier of fact of this by
proving that the employer's proffered reasons for the adverse
employment decision are pretexts for discrimination. The trier
of fact is not required, however, to find intentional
discrimination simply because it does not believe the employer's
explanation. See Miller v. CIGNA Corp., 47 F.3d 586, 596-97 (3d
Cir. 1995) (in banc).
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remedies and procedures this subchapter
provides to the Commission, to the Attorney
General, or to any person alleging
discrimination on the basis of disability in
violation of any provision of this chapter,
or regulations promulgated under section
12116 of this title, concerning employment.
42 U.S.C. § 12117(a).
In accordance with the foregoing principles, courts
addressing the allocations of burdens of proof and persuasion
under the ADA uniformly have looked for guidance to Title VII and
ADEA caselaw. See Ennis v. National Ass'n of Business and Educ.
Radio, Inc., 53 F.3d 55, 57 (4th Cir. 1995) (holding that Title
VII burden-shifting rules apply in ADA pretext case); DeLuca v.
Winer Indus., Inc., 53 F.2d 793, 797 (7th Cir. 1995) (assuming
that Title VII prima facie case and burden shifting method
applies under ADA); Aucutt v. Six Flags Over Mid-America, Inc.,
869 F. Supp. 736, 743 (E.D. Mo. 1994) (applying Title VII prima
facie case standards to ADA); West v. Russell Corp., 868 F. Supp.
313, 316 (M.D. Ala. 1994) ("Generally . . . federal courts have
applied the settled principles of employment discrimination law
[under Title VII] to the ADA") (citing cases); Doe v. Kohn Nast &
Grav, P.C., 862 F. Supp. 1310, 1318 n.5 (E.D. Pa. 1994);
Braverman v. Penobscot Shoe Co., 859 F. Supp. 596, 603 (D. Me.
1994); See also EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d
1276, 1995 U.S. App. LEXIS 12139 at * 5 (7th Cir. May 22, 1995)
(applying Title VII and ADEA caselaw to interpretation of
individual liability under ADA); Carparts Distribution Ctr., Inc.
v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d
1112, 16 (1st Cir. 1994) (seeking guidance from Title VII caselaw
to determine definition of "employer" under ADA).
In addition, courts routinely employ the Title VII
burden-shifting rules in pretext cases brought under the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which
prohibits disability discrimination in public employment. See
Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir. 1994); Barth v.
Gelb, 2 F.3d 1180, 1185-86 (D.C. Cir. 1993), cert. denied, ____
U.S. ____, 114 S.Ct. 1538 (1994); Teahan v. Metro-North Commuter
R.R. Co., 951 F.2d 511, 514 (2d Cir. 1991), cert. denied, ____
U.S. ____, 113 S.Ct. 54 (1992); Smith v. Barton, 914 F.2d 1330,
1339-40 (9th Cir. 1990), cert. denied, 501 U.S. 1217, 111 S.Ct.
2825 (1991). As the ADA simply expands the Rehabilitation Act's
prohibitions against discrimination into the private sector,
Congress has directed that the two acts' judicial and agency
standards be harmonized. See 29 U.S.C. §§ 791(g), 793(d),
794(d); 42 U.S.C. § 12117(b). Therefore, the district court
properly looked to ADEA and Title VII caselaw for guidance.
The court in this case relied in particular on
Griffiths v. CIGNA Corp., 988 F.2d 457 (3d Cir.), cert. denied,
114 S.Ct. 186 (1993), which it interpreted as requiring a
plaintiff in a pretext case to prove that the illicit motive was
the sole cause of the adverse employment decision. We since have
clarified that in pretext cases a plaintiff need prove only that
the illicit factor "played a role in the employer's
decisionmaking process and that it had a determinative effect on
the outcome of that process." Miller v. CIGNA Corp., 47 F.3d
12586, 598 (3d Cir. 1995) (in banc). Nevertheless, the court's
reliance on Griffiths did not prejudice Newman, because it found
that his disability played no role in Parkview's decision. In
its own words:
Plaintiff's dismissal by the defendant
resulted from a bona-fide hospital-wide
reduction in force because of financial
difficulty and not from any discrimination on
the part of defendant against plaintiff due
to plaintiff's disability. The plaintiff's
epilepsy was not the sole cause, was not a
determinative cause, and played no role
whatsoever in the defendant's decision to
terminate plaintiff's position or to lay off
the plaintiff.
App. 453-54. Thus, irrespective of the applicable test, Newman
could not prevail.4
IV.
In view of the foregoing conclusions, we will affirm
the judgment of the district court.
4
Newman argues in the alternative that the district court's
findings of fact are not supported by the record. The argument
is without merit. "We accept the district court's findings of
fact unless they are clearly erroneous." Oberti v. Board of
Educ., 995 F.2d 1204, 1220 (3d Cir. 1993); Country Floors, Inc.
v. Partnership of Gepner and Ford, 930 F.2d 1056, 1062 (3d Cir.
1991). The court found the defendant's witnesses to be credible,
and essentially believed Parkview's explanation of Newman's
layoff. It is well settled that "[c]redibility determinations
that underlie findings of fact are appropriate to a bench
verdict," Country Floors, 930 F.2d at 1062, and rarely will be
disturbed. In this case, the district court's findings are
adequately supported by the testimony and we decline to disturb
them.
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