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September 27, 1994

THOMAS L. KUBE, Plaintiff,
NEW PENN MOTOR EXPRESS, Inc., et. al., Defendants.

The opinion of the court was delivered by: STANLEY S. BROTMAN


 Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, defendant's motion is denied.

 I. Factual and Procedural Background

 In August 1987, New Penn Motor Express ("New Penn") hired plaintiff Thomas Kube ("Kube") as a "city driver" at its Cinnaminson, New Jersey terminal. Plaintiff's Brief ("Pl. Br."), at 1; Defendant's Memorandum ("Def. Memo"), at 5. From November 1987, Kube worked as a ten-percent on-call city driver. Pl. Br., at 1; Def. Memo, at 5. This position involved driving, making pickups and deliveries, and some dock work which included loading and unloading trucks. Pl. Br., at 1; Def. Memo, at 5.

 New Penn employs three principal categories of employees: (1) dock workers, (2) city drivers also known as combination employees or pick-up and delivery drivers, and (3) road drivers. Def. Memo, at 2-3. New Penn claims to maintain written job requirements for each position. Id. at 3. Among the requirements for the dock worker position is "the ability to move freight of all types, sizes and weights, including single cartons in excess of 100 pounds" as well as a "minimum lifting capacity of 51 pounds." Id. at 4. The position of city driver incorporates all of the requirements for the dock worker position as well as the ability to safely operate a tractor-trailer and the physical capacity of unloading freight. Id. at 3-4. The lifting requirements of city drivers vary on a daily basis depending on the type of freight being transported. Id. at 3. Plaintiff maintains that while he was employed by New Penn, he was never aware of any job description or written job requirements for the position of city driver. Kube Aff. P 21. Plaintiff first became aware of such job descriptions during a physical therapy session in April 1991. Id. at P 22.

 Plaintiff was employed in the capacity of ten-percent on-call city driver until December 10, 1987, when he reported that he had injured his back while unloading steel on December 4. Pl. Br., at 1-2; Def. Memo, at 5. Plaintiff was absent from work as a result of this injury until the beginning of July 1988. During this absence, Kube underwent disc surgery. Pl. Br., at 3. Plaintiff received workers' compensation benefits and a 33-1/3 percent partial permanent disability award. Pl. Br., at 2; Def. Memo, at 5-6.

 In April 1990, plaintiff bid for and received a full-time dock loading job. Pl. Br., at 3; Def. Memo, at 6. On July 17, 1990, plaintiff re-injured his back and once again went on a leave of absence. Pl. Br., at 3; Def. Memo, at 7. Plaintiff collected workers' compensation benefits while recuperating from his injury until October 23, 1990. Def. Memo, at 7.

 Kube obtained a work release from his doctor, Dr. Mitchell, on October 8, 1990 which permitted him to return to work in a driving capacity only. Kube Aff. P 9 and Exh. C attached thereto. On October 2, 1990, physical therapist David Kietrys reported that plaintiff could return to work as a dock worker or city driver as long as the employer limited his duties and instituted restrictions on the amount of weight lifted. Defendant's Exhibit ("Def. Exh.") A, part 3. On November 20, 1990, Dr. Edward LaVoice examined plaintiff and concluded that there is no necessity for further treatment of plaintiff and that plaintiff "could return to work as a Truck Driver, but in view of his past medical history, I would suggest restriction of heavy lifting, such as required by Dock Worker." Def. Exh. A, part 5. Plaintiff attempted to return to work both as a city driver and a road driver. Pl. Br., at 3.

 Plaintiff's October request to return to work as a road driver was denied by Regional Manager John Mahon ("Mahon") and Vice President of Safety and Personnel Andy Kerlik ("Kerlik"). Plaintiff requested to be placed on the bottom of the road driver seniority list. *fn1" Kube Aff. P 11; Kube Dep. attached as Def. Exh. C, at 101; Kerlik Dep. attached to Yaskin Certification as Exh. C, at 146. He was told that workers were never permitted to transfer from one seniority list to the other, that he could not perform in the road driver capacity because it required some lifting, and that defendant did not offer "light duty" work. Pl. Br., at 4; Def. Memo, at 8-9. Furthermore, Kerlik told Kube to look for another line of work and to leave New Penn alone since Kube had already received almost $ 70,000 from workers' compensation. Kube Aff. P 12. Defendant additionally maintains that it refused to employ Kube as a road driver because of his poor job performance, poor attendance record and his poor driving record. Def. Memo, at 9.

 Kube's union brought a grievance on his behalf against New Penn for its refusal to transfer him to the road driver list. This grievance was denied. Pl. Br., at 5; Def. Memo, at 10. Kube maintains that the terms of the collective bargaining agreement do not address the issue of transfer between seniority lists. Kube Aff. P 13. Kube has also identified another New Penn employee who was permitted to transfer from the city driver to the road driver list. Kube Aff. P 24.

 Kube continuously maintained his physical certifications which met the requirements that the Department of Transportation ("DOT") prescribed for his job position. Pl. Br., at 6; actual certification forms attached to Kube Aff., Exh. D. DOT certifications are valid for a period of two years, and recertification is required after a long absence caused by injury. Pl. Br., at 6. Kube believed that New Penn's regular procedure was to schedule a recertification exam following the injured employee's return to work, as had been done following Kube's first injury. Id. Kube was recertified following his second injury on December 17, 1990. Kube Aff., Exh. D.

 On May 17, 1991, plaintiff again sought to return to work, but this time as a city driver. Pl. Br., at 7; Def. Memo, at 10. Plaintiff offered Dr. Mitchell's new work release permitting him to return to full duty. Kube Aff., Exh E. In a letter dated June 5, 1991, Dr. Mitchell explained to Kerlik that a functional capacity evaluation had been performed, that plaintiff had regained strength and that he could return to his job duties. Kube Aff., Exh. E. A second medical evaluation obtained from the company physician, Dr. Tocoukjou, revealed that plaintiff was medically approved, concluded that plaintiff could drive for 5-6 hours at a time, and recommended that plaintiff avoid repetitive weight lifting due to history of back surgery even though he was capable of lifting up to 100 pounds during physical therapy. Def. Exh. A, part 7. New Penn refused to reinstate plaintiff on the basis of these medical evaluations, claiming that plaintiff's lifting restrictions would prevent him from performing all the duties of a city driver. Def. Memo, at 11.

 Pursuant to his rights under the collective bargaining agreement, plaintiff sought to obtain a third medical opinion by a doctor selected by Doctors Mitchell and Tocoukjou. On August 7, 1991, Dr. Bruce Heppenstall concluded that although "the physical requirements for a dock worker and a pick-up and deliver driver [same as city driver] are identical," Kube "is able to return back to work as a pick-up and delivery driver but I feel that the patient is unable to return back to full, active, unrestricted employment as a dock worker." Yaskin Certification, Exh. F. Dr. Heppenstall later explained in his deposition that plaintiff could not return to work as dock worker, but could return as a city driver because the position of dock worker involved continuous lifting throughout the day, while a city driver position involved lifting as well as driving. Heppenstall Dep., Id. at 33, 41. However, Dr. Heppenstall also testified in his deposition that if he had understood that the job requirements for dock worker and city driver were identical, he would not have certified Kube as capable of returning to work as a city driver. Heppenstall Dep., Def. Exh. E, at 17, 22, 23. On the basis of Dr. Heppenstall's report, New Penn refused to permit plaintiff to return to work as a city driver. Def. Memo, at 12.

 Plaintiff pursued a second grievance under the collective bargaining agreement complaining of New Penn's refusal to reinstate him as a city driver. This grievance action concluded in a December 3, 1991 decision in favor of New Penn determining that plaintiff was not fully qualified for the position of city driver. Id. The decision additionally provided that plaintiff could only return to work with an unqualified release from an impartial doctor. Def. Exh. D, part 6.

 Upon learning that plaintiff had held a position as a truck driver for another employer, on September 14, 1992, defendant presented to plaintiff an unconditional offer to return to work at New Penn. Def. Memo, at 14. In the offer letter, Kerlik asked plaintiff to contact him "immediately to discuss [his] . . . return to work and any reasonable accommodation which will be necessary" as well as any "alternate position as part of the company's attempt to reasonably accommodate" plaintiff as required by the Americans With Disabilities Act and the New Jersey Law Against Discrimination ("NJLAD"). Kube Aff. Exh. F. Following Kube's October 8, 1992 DOT recertification examination, Kerlik offered Kube the option to return to work on October 12. See Kerlik's October 9, 1992 letter at Id. Kube declined Kerlik's offer because it did not meet his request for retroactive benefits. Pl. Br., at 11.

 Plaintiff filed suit on October 6, 1992 in the Superior Court of New Jersey, Camden County, alleging that New Penn violated the NJLAD when it discriminated against him on the basis of his handicap by refusing to reinstate plaintiff after a back injury which limited his ability to lift freight. Plaintiff also alleged a cause of action for violation of public policy. On January 6, 1993, defendant removed the suit to this Court alleging that plaintiff's claims were pre-empted by ยง 301 of the Labor Management Relations Act ("LMRA"). On December 23, 1993, plaintiff amended his complaint to include a claim of retaliatory discharge for collecting workers' compensation benefits. Defendant has moved for summary judgment on all of plaintiff's claims.

 II. Discussion

 A. Summary Judgment Standard

 The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the non-moving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984); Smith v. Pittsburgh Hahe & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Supreme Court decisions mandate that "a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505, and Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, ...

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