Appeal from the United States District Court for the Western District of Pennsylvania
(D.C. Civ. No. 94-cv-00309)
Before: BECKER, MANSMANN and ROSENN, Circuit Judges.
After American Sterilizer Company ("AMSCO") placed him on workers' compensation leave, channel welder Robert Krouse filed this action against AMSCO and Liberty Mutual Insurance Company, asserting retaliation claims under the Americans with Disabilities Act, 42 U.S.C. Section(s) 12101 et seq. (ADA), and discrimination claims under the Age Discrimination in Employment Act, 29 U.S.C. Section(s) 621 et seq. (ADEA). Relying on McNemar v. Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996), cert. denied, 117 S.Ct. 958 (1997), the district court determined that Krouse was judicially estopped from claiming to be a "qualified individual with a disability" under the ADA based on prior assertions of total disability made in connection with applications for disability and pension benefits. Since Krouse was estopped from claiming to be a "qualified individual with a disability," the court reasoned, Krouse could not invoke the protection of the ADA. Alternatively, the court held that Krouse's ADA claims failed on the merits as a matter of law. The court also held that Krouse's ADEA claims failed as a matter of law. The district court granted the defendants' motions for summary judgment.
We hold that a person's status as a "qualified individual with a disability" is not relevant in assessing the person's claim for retaliation under the ADA. Thus, the district court erred in relying on McNemar to dismiss Krouse's ADA retaliation claims. We also hold, however, that Krouse's ADA and ADEA claims must fail on the merits as a matter of law. Krouse is unable to articulate a prima facie case of retaliation, and he is unable to offer any evidence which would permit a trier of fact to conclude that AMSCO's articulated reasons for its employment decisions were a mere pretext for unlawful retaliation or discrimination. We will affirm the judgment of the district court. Since we do not rely on McNemar in affirming the judgment of the district court, we are not prompted to revisit that controversial decision at this time.
AMSCO designs, manufactures, sells and services hospital equipment. Krouse began employment with AMSCO in 1974 as a member of the bargaining unit represented by Local 832 of the United Auto Workers ("UAW"). In 1989, Krouse became a channel welder. AMSCO evaluates channel welders pursuant to established performance and time standards set by AMSCO's industrial engineers for the completion of various work projects. Employees' "performance percentages" are calculated every week; fully trained channel welders are expected to pursue the applicable performance percentage standards.
On January 14, 1991, Krouse suffered a work-related back injury. Following this injury, Krouse's advising health care professionals placed certain medical restrictions on the type of activity he could perform. From January 15, 1991 through May 20, 1994, AMSCO provided work assignments for Krouse that complied with his medical restrictions. From April 21, 1993 to June 21, 1993, Krouse was assigned to the Transitional Work Group ("TWG"), which provides light-duty work for employees who have suffered temporary injuries or illness. While Krouse was assigned to the TWG, AMSCO implemented requested modifications to the channel welder position in anticipation of his return.
Prior to his return to the channel welder position in June 1993, Krouse's doctor modified his medical restrictions and indicated that Krouse was able to perform the essential functions of the modified position. From January 1 to May 20, 1994, Krouse's performance percentages ranged between sixteen and thirty percent of the expected performance standard; other fully trained channel welders performed at or above fifty percent of the expected standard. During a March 31, 1994, meeting with Krouse's supervisor to discuss Krouse's performance level, Krouse stated that, since he was not "living up to" the supervisor's expectations, he was going to go home. Krouse's chiropractor excused Krouse from work the next day on the ground that he was totally disabled.
On April 20, 1994, Krouse received a medical release to return to work. After reviewing the medical restrictions imposed by the chiropractor, Krouse admitted that no further accommodations were necessary to allow him to perform the essential functions of the modified channel welder position. Krouse also stated, however, that he was working to the highest percentage possible. AMSCO advised Krouse that his performance percentages were unacceptable. Krouse responded that AMSCO should provide Krouse with an assistant.
During this meeting, AMSCO also expressed concern about Krouse's frequent absences from work. During the eleven-month period in which he held the modified channel welder position, Krouse left the facility without prior notice more than fifty times for unscheduled visits with his chiropractor. Krouse's unscheduled absences often left AMSCO without a welder to perform critical production functions and resulted in substantial production delays and backlogs. AMSCO asked Krouse to schedule appointments in advance, but Krouse responded that he could not guarantee the frequency or the time of his appointments.
On May 3, 1994, AMSCO performed another review of Krouse's performance and found that it ranged between twenty-five and thirty percent. Based on this evaluation, coupled with Krouse's admission that he was working to the highest percentage possible, AMSCO concluded that Krouse could not perform the essential functions of the channel welder position. AMSCO had provided Krouse all of the accommodations and modifications requested by his physician, and there were no other vacant positions available which Krouse could perform. On May 23, 1994, AMSCO placed Krouse on workers' compensation leave.
On February 21, 1995, Krouse was placed in a modified Dismantle and Tag position for which he had bid. This job required Krouse to perform duties which were consistent with his medical restrictions. Krouse returned to leave status on April 21, 1995, however, and he has not since returned to active status.
On October 21, 1993, Krouse filed an action, Civ.A. No. 93-313-ERIE ("Krouse I"), alleging that AMSCO discriminated and retaliated against him in violation of the ADA. On August 8, 1995, the district court dismissed Krouse I with prejudice because of Krouse's failure to prosecute it. See Krouse v. American Sterilizer ...