Opinion
Civil Action No. 02-6584.
May 19, 2004
MEMORANDUM
Pursuant to Local Rule of Appellate Procedure, Rule 3.1, this Court held a telephone conference to determine if clarification or amplification of the Court's order, dated March 30, 2004, was warranted. In that order, incorporated fully herein by reference, with familiarity of that order assumed for purposes of this memorandum, this Court granted Defendant's motion for summary judgement. Plaintiff's counsel indicated that he intended to raise three issues on appeal from that order. Specifically, counsel asserted that he believes this Court erred in its decision that Provenzano was not otherwise qualified for the position. Counsel also believes that this Court committed error in asserting that Provenzano was reasonably accommodated and in not giving Provenzano the opportunity to reconcile statements made to the Social Security Administration that are apparently inconsistent with his current claims.
Local Rule 3.1 provides that, after a party has filed a notice of appeal, "the trial judge may file and mail to the parties a written opinion or a written amplification of a prior written or oral recorded ruling or opinion."
This Court, reading the record in the light most favorable to Provenzano, found that he was unable to perform the essential functions of the position with or without reasonable accommodation. The Court noted and applied the standard for summary judgement, including the fact that inferences from the underlying facts must be viewed in the light most favorable to the nonmoving party. Order-Memorandum at 5, n. 2 (March 30, 2004). Nonetheless, the Court found that no reasonable finder of fact could determine that Provenzano was able to perform the essential functions of the position at the time he was terminated. Order-Memorandum at 6.
I. THE BASIS FOR THE DECISION
This Court granted summary judgement for Thomas Jefferson University Hospital ("TJUH") on the ground that Provenzano was not otherwise qualified for the position of orthopedic surgery resident. Order-Memorandum at 6. In making that determination, the Court applied the two-part test for determining whether someone is a qualified person with a disability. First, the Court considered whether "the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc." See Gaul v. Lucent Tech. Inc., 134 F.3d 576, 580 (3d Cir. 1998), 29 C.F.R. § 1630.2(m). The Court then determined whether Provenzano could perform the essential functions of the position with or without reasonable accommodation. See Gaul, 134 F.3d at 580, 29 C.F.R. § 1630.2(m). The determination of whether an individual with a disability is qualified must be made in reference to the time of the employment decision. Gaul, 134 F.3d at 580.
A. The Essential Function of the Orthopedic SurgeryResidency.
TJUH does not contend that Provenzano did not meet the prerequisites nor that Provenzano lacked the education and skills necessary to obtain the position. Provenzano was initially selected to participate in the highly competitive residency program and has come forward with evidence that he satisfactorily performed the duties of a general surgery resident from June 20, 1999, through June 30, 2000. P. Exhibit 5. The Court accepts, for the purpose of this motion, that Provenzano had the prerequisite qualifications for the position.
The question that remains is whether Provenzano was able to perform the essential function of the job, with or without accommodation, at the time he was discharged. An essential function is defined as "the fundamental job duties of the employment position that the individual with the disability holds or desires," but not the marginal functions of the job. 29 C.F.R. § 1630.2(n)(1). The regulations provide a non-exhaustive list of reasons for which a function may be considered essential to a job, including that the function is the reason the job exists, there are a limited number of employees available to perform the task, or the function is highly specialized and the person was hired for his expertise or ability to perform that function. 29 C.F.R. § 1630.2(n)(2).
In determining what the essential function of a position is, consideration should be given to the employer's determination. 42 U.S.C. § 12111(8). TJUH presents evidence of the essential function of an orthopedic surgery resident. Dr. Peter F. Sharkey, who has served as either director or codirector of the program during the past six years, asserts that "the ability to perform orthopedic surgery is an essential function of the job of a Jefferson orthopedic surgery resident," in most surgeries, the resident performs some procedures, and when not actively performing procedures, the resident is responsible for retracting tissue, which is often the best or only point to observe the technique and procedure. Sharkey Affidavit (July 17, 2003). The two core clinical rotations in PGY2 are a four-month rotation in joints and a four-month rotation in spine. Id. The only time credit was given for research was in the joint M.D./Ph.D. program, of which Provenzano was not a part, and the credit for that research was only attributed to the Ph.D. portion of the program. Id. The Court reiterates its conclusion that "[n]o reasonable finder of fact could determine that, at the time Provenzano was terminated, he was capable of performing the essential functions of the position. In short, Provenzano was in the orthopedic surgery residency program, but could not perform orthopedic surgery." Order-Memorandum at 6.
B. Provenzano Was not Able to Perform the Essential Function of the Job with or Without Reasonable Accommodation.
Although Provenzano asserts that, with reasonable accommodation, he would have been able to perform the essential functions of the orthopedic surgery residency, P. Exhibit 1, he does not identify the essential function of that position that he would be able to perform. As a result, Provenzano fails to identify what accommodation would allow him to perform the essential function of that position.
As was considered in the Order-Memorandum at 3, Provenzano argues that he could perform the essential functions of the orthopedic surgery residency by working an office-based rotation without performing any surgery until his hand recovered, and conducting research and attending lectures with credit for that work attributed to his residency. Yet, it is undisputed that the office-based position required covering for vacationing residents, writing notes, prescriptions, and orders, pain management, checking wounds, and removing staples and sutures. Provenzano Dep. at 176-178 and 316-319.
Provenzano requested that he be permitted, "to conduct research and attend lectures and conferences as an active employee with credit given toward the completion of his residency," effective November 28, 2000. P. Exhibit 12. Provenzano stated in a deposition that he would have counted his research as his PGY2. Provenzano Dep. at 233.
Provenzano argues for accommodation by modifying the office-based practice by removing the requirement of covering for residents on vacation and limiting the amount of writing. Provenzano Dep. at 269-270. TJUH responded to the requests for accommodation by stating that credit for the research would be given towards the requirement that residents complete two research projects, the research time would not be attributed to the required clinical time, and Provenzano must complete twelve months of clinical work in order to advance from PGY2 to the next level. P. Exhibit 13. TJUH also informed Provenzano that his request for office-based practice with accommodation could not be granted because that position involves covering for residents of equal experience, both on the floor and in the operating room. P. Exhibit 15. Instead, Provenzano would be accommodated by being placed in the joint surgery rotation, relieved from performing surgery during April, 2001, and provided with an intern on the nights he would take call. Id. TJUH stated the Provenzano would be expected to return to full clinical duties by May 1, 2001. Id.
C. Provenzano failed to Identify an Accommodation that Would Have Allowed Him to Perform the Essential Function of the Position.
Furthermore, Provenzano has failed to establish that there was a reasonable accommodation that would have allowed him to perform the functions of his job, whatever he may have considered those functions to be. Provenzano requested a leave of absence and continually pushed back the date on which he would be able to return to the full functions of the orthopedic surgery residency. Several courts addressing the issue of leave of an unknown duration have found that this is not a request for a reasonable accommodation. See Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1187-1188 (6th Cir. 1996) (finding it an undue hardship to require employer to hold position open when it is unknown when the employee will return to work); Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 759-760 (5th Cir. 1996) (same); Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995) (finding that the reasonable accommodation requirement does not require the employer to wait indefinitely for an employee's medical condition to be corrected, particularly given uncertainty of a cure). When the duration of the inability to perform the job is unknown, the employer cannot be expected to keep the position open.
During Provenzano's absence, TJUH was forced to reallocate work in order to hold the residency position open. Because TJUH was limited in the number of residents it could hire, to continue to hold Provenzano's position open, TJUH would be forced to shift the residency duties to the other residents, indefinitely. Under the American's with Disabilities Act ("ADA"), a reasonable accommodation may include, among other things, "job restructuring, [and] part time or modified work schedules." 42 U.S.C. § 12111(9)(B). However, an employer is not required to reallocate job functions that change the essential functions of the job. Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 20 (1st Cir. 1998); see also Blackwell v. Philadelphia, 2000 U.S. Dist. LEXIS 6420, *15, civ. no. 99-0015 (E.D. Pa. May 11, 2000) (employer not required to assign second person to work with employee "nor create a `light duty' or new permanent position"),Keeshan v. The Home Depot U.S.A., Inc., 2001 U.S. Dist. LEXIS 3607, *26-*29 (E.D. Pa. March 27, 2001) (employer not required to grant an accommodation when the accommodation requested would eliminate an essential function of the job). Provenzano requested that he be placed in office-based practice, but requested that TJUH remove the duties that were required of other residents in that position. The past experience of the residents is evidence of what was an essential function of the job. See 29 C.F.R. § 1630.2(n)(3)(vi). Nonetheless, as an accommodation, Provenzano wanted those functions to be removed. Provenzano's requests, if accepted, would have amounted to either altering or removing the essential function of the position.
The Accreditation Council for Graduate Medical Education establishes the minimal standards and controls the number of residents a program may have. TJUH was allowed six orthopedic surgery residents for each year of its residency program. Sharkey Affidavit (July 17, 2003).
II. THE COURT'S CONSIDERATION OF OTHER EVIDENCE
In addition to the fact that Provenzano was not otherwise qualified for the position of orthopedic surgery resident, the Court noted, although did not treat as dispositive of the case, that TJUH had provided multiple accommodations to Provenzano and that Provenzano had made statements to the Social Security Administration that were in apparent conflict with his current claims. Provenzano believes that the Court erred in finding that TJUH reasonably accommodated Provenzano. Provenzano also asserts that the Court erred in its assertion that Provenzano failed to reconcile apparently inconsistent statements — those that he made to the Social Security Administration and those in connection with the claims made in this suit. Although these were not the reasons for granting summary judgement, the Court will address each briefly.
With respect to reasonable accommodations, as discussed above, while a reasonable accommodation may include job restructuring and part time or modified work schedules, an employer is not required to remove the essential functions of the job. Nonetheless, TJUH relieved Provenzano from performing surgery for an extended period of time, despite the fact that the position was that of orthopedic surgery resident. The Court determined that
Provenzano has not come forward with evidence that TJUH failed to provide him with reasonable accommodations. To the contrary, TJUH provided reasonable accommodations, even going so far as to assign an intern to Provenzano for when he would be on night call, excusing him for an extended period of time from performing surgery, and holding his position open for almost eight months while he attempted to rehabilitate his hand
Order-Memorandum at 6. It is difficult to conceive what accommodations, other than those provided by TJUH, would have constituted reasonable accommodations.
Finally, Provenzano asserts that he was not provided the opportunity to respond to the claim that he had made statements to the Social Security Administration that appear to be inconsistent with his current claims. Provenzano's claim is that judicial estoppel was applied, in error, to bar his claim without him having been given the opportunity to respond to that argument. See, e.g., Berardi v. Swanson Memo'l Lodge no. 48 of the Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990) (finding that district court erred in dismissing a plaintiff's complaint on a ground not raised by the defendant when the plaintiff was not given an adequate opportunity to respond).
The Court did not base its decision to grant TJUH's motion for summary judgement on judicial estoppel. Regardless, the issue had been raised by TJUH. TJUH asserted, as an affirmative defense, that "Plaintiff's claims may be barred, in whole or in part, by the doctrines of estoppel and/or waiver." Answer to Amended Complaint at 6. TJUH then asserted in its recitation of facts in the motion for summary judgement that Provenzano, in a claim for social security disability benefits, asserted that he was disabled, became unable to work because of his disabling condition on August 7, 2000, and that, in claims for disability benefits under two different policies, Provenzano, through his treating physician, asserted that neither the present job nor any other job could be modified to allow Provenzano to work. Defendant's Motion for Summary Judgement at 32-34. Finally, TJUH again pointed out that "plaintiff represented to the Federal Government and to LTD insurance carriers that he was disabled, unable to work, unable to perform the duties of his job as an orthopedic surgery resident and that it was unknown when he could return to work." Id. at 47.
Although previous inconsistent statements by the plaintiff are not an absolute bar to claims under the ADA and Pennsylvania Human Relations Act ("PHRA") because of the difference in statutory framework between the Social Security Act and the ADA and PHRA, the plaintiff cannot simply ignore the inconsistencies, but must reconcile those positions. See Cleveland v. Policy Mgm. Sys. Corp., 526 U.S. 795, 797-798 (1999); Motley v. N.J. State Police, 196 F.3d 160 (3d Cir. 1999). TJUH intimated to the Court in the pleadings Provenzano's previous and apparently contradictory statements. Nonetheless, Provenzano never acknowledged those prior statements, let alone attempted to reconcile the position he took before the Social Security Administration with his current claims. The Court found that "[i]nstead of attempting to reconcile the statement he made to the SSA with the assertions he makes in relation to his claims in this lawsuit, Provenzano ignores his prior position." Order-Memorandum at 7. Not only could these unreconciled inconsistencies give rise to estoppel, but the prior statements are admissions that Provenzano could not perform the essential functions of the residency position.
III. CONCLUSION
In deciding this case, the Court determined that Provenzano could not perform the essential functions of the position, with or without accommodation. In order to give a complete picture, however, the Court also noted the actions that TJUH took in order to accommodate Provenzano and the inconsistent positions adopted by Provenzano. This memorandum serves to explicate the Court's reasoning and legal analysis behind the decision to grant summary judgement in favor of TJUH on the ground that Provenzano could not perform the essential function of the position, orthopedic surgery resident, with or without reasonable accommodation.