Polini v. Lucent Technologies , 100 F. App'x 112 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-10-2004
Polini v. Lucent Tech Inc
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2285
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-2285
____________
PATRICIA POLINI,
Appellant
v.
LUCENT TECHNOLOGIES
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 02-cv-00220)
Magistrate Judge: Hon. Arnold C. Rapoport
Argued: January 23, 2004
Before: ALITO, and CHERTOFF, Circuit Judges, and DEBEVOISE,* District Judge
(Opinion Filed: June 10, 2004)
DAVID L. DERATZIAN, ESQ. (argued)
NANCY S. SKALANGYA, ESQ.
GEOURGE S. KOUNOUPIS, ESQ.
Hahalis & Kounoupis, P.C.
20 East Broad Street
Bethlehem, PA 18018
Counsel for Appellant
*
The Honorable Dickinson R. Debevoise, District Judge of the United States
District Court for the District of New Jersey, sitting by designation.
ROBERT W. CAMERON (argued)
THEODORE A. SCHROEDER
LITTLER MENDELSON
Dominion Tower
625 Liberty Avenue, 26th Floor
Pittsburgh, PA 15222
Counsel for Appellee
______________________
OPINION OF THE COURT
______________________
ALITO, Circuit Judge:
Patricia Polini commenced this action against her former employer, Lucent
Technologies (“Lucent”), claiming that Lucent violated the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (“the ADA”), and the Pennsylvania Human Relations Act,
43 Pa. Stat. Ann. § 951 et seq. (“the PHRA”) 1 , when it decided not to recall her after a lay
off. According to Polini, Lucent made this decision because it regarded her as disabled.
The Magistrate Judge granted summary judgement in favor of Lucent. Because we
conclude that there are genuine issues of material fact, we vacate the order of the District
Court and remand for further proceedings.
I.
From 1984 to 1985, Polini worked as a “detailer” for Lucent’s predecessor,
1
Analysis regarding Polini’s ADA claim is dispositive of her PHRA claim. Taylor
v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (“analysis of an ADA claim
applies equally to a PHRA claim”).
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AT&T, and in this capacity she was required, without the aid of a microscope, to examine
computer chips for defects. She was later given the job of “process checker,” which
required her to use a monocular microscope to repair chips. She was laid off as part of a
reduction in force in 1985.
Polini was a member of the International Brotherhood of Electrical Workers (“the
Union”) and was covered by a collective bargaining agreement between the Union and
the employer. In 1995, Lucent began contacting former Union-represented employees
about returning to work. The Human Resources department, under the direction of
Deborah Harris (Human Resource Manager) and the supervision of Edgar Tanner (Labor
Relations Operations Manager), organized the laid-off individuals into groups based on
seniority. Human Resources employees contacted former employees on the list and asked
if they were interested in being recalled. Each individual who expressed an interest was
then scheduled for a physical examination in Lucent’s Health Services department. The
physical examination consisted of a drug test, a hearing test, a vision test, and a general
physical.
According to Harris, Health Services was apparently provided with some
information about the nature of the position or positions that were to be filled, but just
how much information was provided is not clear. Harris, who was described by the
Magistrate Judge as the person who was “most knowledgeable about the recall
operation,” provided the following explanation:
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A. They know what jobs -- again, just sort of briefly or generically, they
know what jobs we’re hiring for. They don’t necessarily, need to know
that, but just the rapport we had with the people we talked to a daily basis
when the hiring first started. They know if we’re hiring for clean room or
bench hand or something like that.
Q. Are they looking for something different -- that’s a bad example. Were
they looking at something different for bench hand versus an accountant?
A. No. No. Versus accountant, possibly so.
Q. That’s why I made it that distinction.
A. Yes.
Q. Are they looking for something different for a bench -- for a clean room
operator versus a custodian or somebody in maintenance?
A. I can’t answer that.
Q. Do they need to know or do you tell them what the job descriptions of
the positions you’re hiring for are?
A. We really don’t have to get into that, as long as they know it’s for a
manufacturing position, unless there are some issues that come out of
something, out of the examination or out of the hiring process.
App. 2 166-67. When this portion of the deposition is viewed in the light most favorable
to Polini, the non-moving party, the most that can be said is that Health Services was
given a very general idea of the position or positions that were to be filled.
Once Health Services completed its exam, it reported to Human Resources
whether the person had passed or failed. According to Harris, after Health Services
2
“App.” refers to the Joint Appendix.
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completed an examination, it would give Human Resources “a piece of paper,” “[c]ould
be [a] piece of notebook paper” saying whether the person had “passed or failed” App.
174-75. She added: “Just something briefly.” Id. at 175. If Health Services reported that
a person had failed the physical, the person would not be recalled. App. 179-80.
When Polini reported for her physical examination, Mary Silver, a Health Services
nurse, administered the vision test. According to Silver, Polini told her that she was blind
in her right eye. The vision examination that Silver conducted was the titmus vision
orthrator (“the test”). 3 During the test, Silver permitted Polini to keep her glasses on at
times and to remove them at other times. The test results revealed that Polini had 20/200
vision in her right eye and 20/25 vision in her left eye, and her stereo depth perception
was assessed as poor.
Following the vision examination, Dr. Frank Capobianco performed a physical
examination of Polini and reviewed the results of Nurse Silver’s testing. However, Dr.
Capobianco did not know that Polini did not have her glasses on during the entire vision
examination, and he testified that this fact would have been important to him. App. 256-
57. Dr. Capobianco determined that Polini had severe morbid obesity, hypertension, and
monocular vision and that she might “have restrictions for enclosed workspace or
restrictive clothing.” Id. at 260-62, 414. He also identified certain job-related
3
The titmus test is an occupational vision test that is standard in the industry. The
test screens for problems in the areas of near vision, far vision, color vision, depth
perception, and vertical and lateral vision.
-5-
restrictions, including an inability to perform “tasks requiring binocular vision” due to
“essential blindness right eye.” Id. at 260-61, 265, 416. In accordance with Lucent
policy, however, he noted that his final assessment was being deferred until he received
further medical information from Polini’s primary care physician.
On December 2, 1998, Dr. Capobianco referred Polini to her primary health care
physician, Dr. Steven Farbowitz, and faxed Dr. Farbowitz a copy of the job descriptions
for utility operator positions contained in the labor contract between the Union and
Lucent. Dr. Farbowitz is not an ophthalmologist, and the records that he submitted to
Lucent contain no indication that he performed a vision examination on Polini. In
addition, Polini testified that Dr. Farbowitz did not perform a vision examination. App.
107. She also stated that she did not discuss with Dr. Farbowitz whether she could
perform visual inspections. Nonetheless, on December 4, 1998, Dr. Farbowitz issued a
one sentence note stating: “Pat Polini is qualified for the job of utility operator.” Id. at
438.
Polini returned to Lucent’s Health Services department on December 10, 1998. As
of that date, Dr. Capobianco had already reviewed Dr. Farbowitz’s note. Dr. Capobianco
placed the same job-related medical restrictions on Polini on December 10, 1998, as he
had tentatively placed on her earlier. Specifically, he again noted that Polini “can’t do
tasks requiring binocular vision.” App. 440. Dr. Capobianco determined that Polini’s
vision was “functionally monocular,” meaning that “the poorer eye cannot be corrected
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enough when binocular vision is important for things requiring acute depth perception or
binocular instrument use to be able to do it.” Id. at 266-67.
After Dr. Capobianco completed this report, Health Services informed Human
Resources that Polini had failed the exam, and Polini was not recalled. It appears that
Lucent did not retain whatever document Health Services used to convey its conclusion to
Human Resources. App. 175.
A few weeks after December 10, 1998, Polini called the Union to ascertain her
recall status. She testified that a Union representative read to her the forms that had been
prepared by Health Services concerning her physical examination. App. 51-55. Polini
also testified that the same Union representative informed her that Dr. Capobianco had
said that she had numerous restrictions and that she suffered from macular degeneration.
App. at 31-32. After speaking with this Union representative, Pollini received via fax the
records that Dr. Capobianco had prepared. Polini believes that the Union informed her on
January 15, 1999, that Lucent was not going to recall her. Although she spoke to her
Union representatives, Polini never spoke with any Lucent representative concerning why
she was not recalled.
After learning of Lucent’s decision, Polini went to an ophthalmologist, Dr.
William J. Kitei, on February 12, 1999. Polini told Dr. Kitei that she had been informed
by Lucent that she had macular degeneration. Based on his examination, Dr. Kitei opined
that Polini was “capable of performing almost any job for which she is capable.” App.
-7-
497. Dr. Kitei’s records were never sent to any representative of Lucent’s Health
Services or Human Resources departments. Moreover, Tanner, Harris, and Silver all
testified that they never saw Dr. Kitei’s record prior to their depositions in this case. Id.
at 138-39, 182-83, 240.
On February 28, 1999, the Union filed a grievance on Polini’s behalf, challenging
Lucent’s decision not to recall her. The grievance alleged that Polini was being
discriminated against because she was overweight but made no reference to her vision.
App. 441. No information concerning Dr. Kitei’s examination or any other new medical
information was presented during the grievance proceedings, and the grievance was
denied.
II.
The Magistrate Judge granted summary judgment in favor of Lucent on two
grounds. First, the Magistrate Judge concluded that Polini was not “regarded as”
substantially limited in seeing or working. The parties had disagreed as to the identity of
the relevant decision maker at Lucent. Polini argued that the decision not to recall her
was actually made by Dr. Capobianco and Nurse Silver, whereas Lucent took the position
that the relevant decision makers were Harris, the Human Resource M anager, and Tanner,
the Labor Relations Operations Manager. The Magistrate Judge agreed with Lucent
because “Harris and Tanner possessed all the decision-making authority,” and the
Magistrate Judge concluded that Harris and Tanner did not regard Polini as substantially
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limited in the major life activities of seeing and working because they had not seen Dr.
Capobianco’s reports and did not know anything about Polini’s medical condition other
than that she had failed the physical and the vision test. A18-19.4 The Magistrate Judge
rejected the argument that Dr. Capobianco and Nurse Silver were the real decision makers
because they “simply conducted medical examinations” and had “no idea what Human
Resources would do with the information Health Services provided.” A18-19.
Moreover, the Magistrate Judge observed that there was no evidence that Dr. Capobianco
or Nurse Silver regarded Polini as disabled. A17. Rather, the Magistrate Judge stated,
they “simply noted that [Polini] was unable to use a binocular microscope.” A17.
Second, the Magistrate Judge held that, even if Lucent had regarded Polini as
having a disability, Lucent was nevertheless entitled to summary judgment based on the
defense recognized in Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 192-94 (3d Cir.
1999). Under Taylor, “[i]f an employer regards a plaintiff as disabled based on a mistake
in an individualized determination of the employee’s actual condition . . ., then the
employer [has] a defense if the employee unreasonably failed to inform the employer of
the actual situation.” Id. at 193 (footnote omitted). The Magistrate Judge noted that
Polini did not give Lucent a copy of Dr. Kitei’s report and that the grievance filed by the
Union did not take issue with Dr. Capobianco’s assessment of Polini’s vision but instead
contended that Lucent was discriminating against Polini because she was overweight.
4
“A” refers to the documents bound with the Appellant’s brief.
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A20-21.
III.
We exercise plenary review over a District Court’s grant of summary judgment.
Koslow v. Pennsylvania, 302 F.3d 161, 167 (3rd Cir. 2002). In evaluating the District
Court’s grant of summary judgment in favor of Lucent, we must determine whether there
are any genuine disputes of material fact. Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d
Cir. 2002). If not, then viewing the evidence in the light most favorable to Polini, we
must decide whether Lucent was entitled to judgment as a matter of law. See F ED. R.
C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The ADA prohibits “discrimination against a qualified individual with a disability
because of the disability of such individual.” 42 U.S.C. § 12112(a). In order to establish
a prima facie case of discrimination in violation of the ADA, a plaintiff must prove that
she “(1) has a ‘disability’ (2) is a ‘qualified individual’ and (3) has suffered an adverse
employment action because of that disability.” See Deane v. Pocono Med. Ctr., 142 F.3d
138, 142 (3d Cir. 1998) (en banc).
A plaintiff may establish that she has a disability by showing that (1) she suffers a
physical or mental impairment that substantially limits one or more of her major life
activities, (2) she has a record of such impairment, or (3) she was “regarded as” having
such an impairment by her employer. See Marinelli v. City of Erie, Pa., 216 F.3d 354,
359 (3d Cir. 2000). On appeal, Polini argues only that Lucent regarded her as disabled.
-10-
Polini does not claim that she had an impairment that actually limited a major life activity
or that she had a record of such an impairment.
The Supreme Court has defined “substantially limited” as “significantly restricted
as to the condition, manner or duration under which an individual can perform a
particular major life activity.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S.
184, 195 (2002) (“In determining whether an individual is substantially limited in a major
life activity . . . the following factors should be considered: the nature and severity of the
impairment; the duration or expected duration of the impairment; and the permanent or
long-term impact of or resulting from the impairment.”) (internal quotations and citation
omitted). An individual is not substantially limited unless she has “an impairment that
prevents or severely restricts [her] from doing activities that are of central importance to
most people’s lives.” Id. at 185.
To be “disabled” under the “regarded as” portion of the ADA’s definition of
disability, Polini must demonstrate either that (1) although she had no impairment at all,
Lucent erroneously believed that she had an impairment that substantially limited a major
life activity or (2) that she had a nonlimiting impairment that Lucent mistakenly believed
limited a major life activity. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489
(1999); Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 514 (3d Cir. 2001).5
5
The EEOC regulations also allow for an individual to establish that s/he is
“regarded as” disabled if s/he “[h]as a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of others toward such
-11-
The major life activities in which Polini claims Lucent regarded her as
substantially limited are seeing and working. In this connection, Polini points in
particular to Dr. Capobianco’s statement that she had monocular vision. The Supreme
Court has held that monocularity is not “a per se disability,” but the Court has added that
its “brief examination of some of the medical literature leaves us sharing the
Government’s judgment that people with monocular vision ‘ordinarily’ will meet the
[ADA’s] definition of disability.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566-67
(1999); see also Sutton, 527 U.S. at 472 (“whether a person has a disability under the
ADA is an individualized inquiry”). The Court noted that persons with monocular vision
“vary by the degree of visual acuity in the weaker eye, the age at which they suffered their
vision loss, the extent of their compensating adjustment in visual techniques, and the
ultimate scope of the restriction on their visual abilities.” Id. at 566. As a result, the
Court concluded, “monocular individuals” must “prove a disability by offering evidence
that the extent of the limitation in terms of their own experience, as in loss of depth
perception and visual field, is substantial.” Id. at 567.
IV.
Lucent defends the decision of the Magistrate Judge on the ground that the
relevant decision makers were Harris and Tanner and that they did not regard Polini as
impairment.” 29 C.F.R. § 1630.2(l)(2). See Sutton, 527 U.S. at 490 (“These
misperceptions often ‘resul[t] from stereotypic assumptions not truly indicative of . . .
individual ability.’”) (citing 42 U.S.C. § 12101(7)).
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suffering from monocular vision or, indeed, any other particular vision impairment. All
that they knew, Lucent stresses, was that Polini had failed the vision test.
Polini, on the other hand, contends that Harris and Tanner were not the ultimate
decision makers because the recall decision was controlled by the outcome of the medical
evaluation. Polini notes that, during the grievance proceeding, Tanner stated that he had
no ability to recall Polini because “Medical won’t let her in.” App. 535. Therefore,
according to Polini, the relevant decision makers were Dr. Capobianco and Nurse Silver.
Although the Magistrate Judge held that Harris and Tanner were the relevant
decision makers, we conclude that there is at least a genuine dispute of fact on this
question. As noted, Polini’s claim is that she was not recalled because she was regarded
as having a disability. See Pocono Med. Ctr., 142 F.3d at 142. Thus, the focus must be
on the person or persons whose determinations in fact controlled the decision not to recall
her. This is not a case in which the person having the formal decision making authority
deferred to a report or recommendation submitted by someone else but nevertheless
exercised at least some measure of independent judgment. Cases of that sort present
issues that we need not confront here. As portrayed to us by both sides, this case, by
contrast, is one in which a reasonable fact finder could find (and perhaps would be
obligated to find) that the officials with the formal decision making authority, i.e., those
in Human Resources, exercised no judgment whatsoever. Instead, it may be that the real
decision making authority was in effect delegated to Health Services. As noted, Health
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Services was given some information about the positions for which the person to be
examined was being considered; Health Services then presumably made some judgment
about the physical requirements of those positions and about the physical capabilities of
the person who was examined; and Health Services ultimately informed Human
Resources whether the person had passed or failed the basic components of the exam. If
Health Services told Human Resources that the person had failed, Human Resources
automatically declined to recall the individual. Under these circumstances, a reasonable
fact finder certainly could find (and might be required to find) that Health Services was
the real decision maker for present purposes.
Lucent maintains that it is entitled to summary judgment even if the real decision
making occurred in Health Services because “Dr. Capobianco and Harris merely
concluded that Polini had monocular vision and could not use a binocular microscope.
There is no evidence that they believed Polini’s vision limited her daily activities or that
she was disqualified from more than one particular job.” Appellee’s Br. at 15. We do not
agree.
The pertinent question is whether Health Services decided that Polini had failed
the vision test because it considered her vision to be impaired to such a degree that it
substantially restricted her in the major of life activities of seeing or working. As noted,
monocularity is often a disability, and here Dr. Capobianco also stated that Polini was
essentially blind in one eye. We conclude that the record is sufficient to create a genuine
-14-
issue as to whether Health Services decided that Polini had failed the vision test because
Dr. Capobianco regarded her as substantially limited in the major life activity of seeing.
We believe that evidence in the record also creates a genuine issue on the question
of whether Health Services decided that Polini had failed the vision test because Dr.
Capobianco regarded her vision as preventing her from performing a broad class or range
of jobs. Although it appears that Dr. Capobianco reviewed the job description of the
specific job that was open, it is not at all clear that Health Services’ decision that Polini
had failed the vision test was based merely on the belief that she lacked the visual acuity
needed for that position. The long passage from Harris’s deposition that was quoted
above may be read to say that Health Services customarily considered only whether a
person was physically capable of a “generic[]” type of job, such as “a manufacturing
position.” App. 166-67. Thus, the summary judgment record leaves open the possibility
that Health Services’ decision that Polini had failed the vision test was based on the
conclusion that she lacked the vision needed for a broad class or range of jobs.
For these reasons, we hold that the M agistrate Judge erred in granting summary
judgment for Lucent on the ground that Polini was not regarded as having a disability.
V.
The Magistrate Judge held that Lucent was entitled to summary judgment on the
alternative ground that Polini unreasonably failed to bring to Lucent’s attention evidence
that the evaluation of her vision in Dr. Capobianco’s report was inaccurate. In this
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connection, Lucent notes that Polini possessed Dr. Kitei’s report by the time of the
grievance proceeding but that this report was not furnished to Lucent. Lucent argues as
follows:
Polini knew in December 1998 that her vision was an issue with respect to
her recall, and that Dr. Capobianco had opined in his report that she “can’t
do tasks requiring binocular vision.” . . . . Notwithstanding her knowledge
of this issue, Polini never informed Lucent Human Resources or Health
Services that her vision had allegedly been improperly assessed.
Appellee’s Br. at 35.
The defense recognized in Taylor is “fact-specific,” 177 F.3d 194, and we believe
that a reasonable fact finder could find on the present record that Polini acted reasonably.
First, it does not appear that Polini was ever informed precisely why she was not recalled.
Polini stated that no one at Lucent ever told her the basis for the decision, App. 51, 56-58,
and Lucent has not pointed to any contradictory evidence in the summary judgment
record. Polini presumably knew that the decision was based on medical reasons, but Dr.
Capobianco’s report of December 10, 1998, which was faxed to Polini by her union
representative, set out several restrictions in addition to the inability to “do tasks requiring
binocular vision.” 6 App. 441. Although Harris stated in her deposition that the only
6
Lucent does not claim that it ever told Polini that her vision was the sole reason
why she was not recalled, but Lucent claims that she nevertheless deduced that this was
the ground for the decision. Lucent argues as follows. Although Dr. Capobianco’s final
report imposed restrictions not related to Polini’s vision – viz., “No Work at Unprotected
Elevation,” “No Ladder or Pole Climbing,” and “No Frequent Squatting or Bending,” see
App. 440, Polini acknowledged during her deposition that Dr. Capobianco told her that
“as a utility operator, you don’t have to climb ladders or stoop for eight hours.” App. 52.
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reason why Polini was not recalled was her failure to pass the vision test, App. 178-79, it
is not clear that either the company and union representatives at the grievance meeting
understood this. As noted, the grievance filed by the union referred to Polini’s obesity,
not her vision. At the step IV grievance meeting, a company representative referred to all
three of the conditions mentioned in Dr. Capobianco’s first report – “[s]evere morbid
obesity, hypertension, binocular vision” – and most of the discussion concerned Polini’s
weight. App. 534-35.
Second, it does not appear that Polini was ever informed that Dr. Capobianco
believed (based on Nurse Silver’s report of the vision exam) that Polini had monocular
vision even when wearing corrective lenses. This was important because Polini knew
that, without correction, her vision in one eye was very poor. Thus, without knowing that
Dr. Capobianco was referring to her uncorrected vision, she had less reason to challenge
his statement.
Lucent therefore reasons that Polini must have known that her vision was the sole reason
why she was not recalled. Lucent also notes that, after Polini learned that she would not
be recalled, the only physician whom she saw was an eye doctor.
While the evidence to which Lucent points is sufficient to support a finding that
Polini knew the reason for the contested decision, it is not sufficient to prevent a
reasonable fact finder from reaching the opposite conclusion. Polini’s union
representative gave Polini a copy of Dr. Capobianco’s earlier report, which referred to
“severe morbid obesity” and “hypertension,” and the grievance filed on Polini’s behalf
stated that she was being discriminated against based on obesity. As noted, Polini’s
obesity was a major topic of discussion at the Step IV Grievance Meeting. See App. 534-
35. We hold that there is a genuine issue as to whether Polini knew that her vision was
the only reason for the company’s decision.
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Third, although Lucent asserts in its brief that only one position (“Utility Operator:
Wafer Fabrication Operations”) was open and that this position requires the use of a
binocular microscope, Appellee’s Br. at 5-6, Lucent has not called to our attention any
evidence that Polini was informed of either of these facts. When Nurse Silver faxed job
descriptions to Polini’s physician, Dr. Farbowitz, her cover memo referred to “utility
operator job descriptions,” App. 430 (emphasis added), and job descriptions of several
different utility operator positions were attached. Id. at 432-37. In addition, the job
description for the position of “Utility Operator: Wafer Fabrication Operations” stated
that the job involved “visual . . . inspections,” but there was no mention of a binocular
microscope. Id. at 436.
Lucent’s Taylor argument, therefore, amounts to the following. Polini acted
unreasonably in failing to inform Lucent that she has binocular vision after correction
even though she did not know that she was not recalled solely because of her vision, she
did not know that Dr. Capobianco believed that she was essentially blind in one eye even
after correction, and she did not know that the only position for which she was considered
required binocular vision. Contrary to Lucent’s position, we conclude that a reasonable
fact finder could find that Polini acted reasonably under these circumstances.
VI.
For the reasons stated above, the District Court’s grant of summary judgment in
favor of Lucent is reversed, and the case is remanded.
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