and unable to move without assistance, due to pain in his neck and fingers and the numbness of the arm and fingers on his right side. Although some of the pain has subsided, plaintiff still has partial paralysis of his right hand, which makes it difficult (though not necessarily impossible) for him to grasp and manipulate small objects such as tools, and to carry large bulky items using both hands.
Plaintiff returned to work on August 16, 1994, just before his paid leave of absence was scheduled to expire. On returning to work, Plaintiff presented his employers with a note from his Doctor, a Dr. Macom, stating that Plaintiff was fit to return to work provided he was not required to lift any weights above 23.9 pounds. Plaintiff has testified that he requested that Dr. Macom rewrite his note to specify a 23.9 pound limit, rather than the 20 pound limit the Doctor had initially chosen, because the Union had informed plaintiff that the dollar coin bags weigh 24 pounds, and that plaintiff might be able to return to work if he showed himself able to lift the coin bags below the dollar amount. At Caesar's request, Plaintiff consulted an orthopaedic surgeon named Dr. Baker, who confirmed that plaintiff had a herniated disc in the cervical spine, and that plaintiff could not perform the duties of a Slot Attendant as listed in the Caesars Job Classification, because he should not do any bending, twisting, or lifting of heavy objects.
Plaintiff requested that he be permitted to return to work and be assigned only to areas of the casino floor where large denomination slot machines did not predominate, and that he be excused from filling dollar and above machines and that he continue to be excused from doing monthly hopper storage fills. Plaintiff's supervisor informed him that such an accommodation would not be possible, and that it was "too risky" for him to return to work in his existing physical condition.
On October 3, 1994, Caesars informed Plaintiff that he was terminated, effective August 23, 1994, because he was unable to perform his duties and had exhausted all the medical leave of absence time available under Caesars' policy.
After his termination from Caesars, Plaintiff looked for work at other casinos and in other fields, but has been unable to find a full time permanent position. The extent and rigor of plaintiff's search for work remains in dispute, but this dispute is not material to the issue addressed in this motion. Plaintiff currently works part-time as a service repairman for a radio station. He has, since leaving Caesars, also worked briefly as a teacher for the Cape May County Vocational School, and as a security guard.
II. SUMMARY JUDGMENT STANDARD
A court may grant summary judgment 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). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990). However,
the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial.