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Emory v. Astrazeneca Pharmaceuticals LP

March 11, 2005

ALVIN EMORY, APPELLANT
v.
ASTRAZENECA PHARMACEUTICALS LP



Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 02-cv-01466) District Judge: Honorable Joseph J. Farnan, Jr.

Before: Rendell, Aldisert, and Magill *fn1, Circuit Judges.

The opinion of the court was delivered by: Rendell, Circuit Judge

PRECEDENTIAL

Argued November 29, 2004

OPINION OF THE COURT

Alvin "Rob" Emory brought suit against his longtime employer, AstraZeneca Pharmaceuticals LP ("AstraZeneca"), alleging disability discrimination in the form of failure to promote and failure to provide reasonable accommodations in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Moving for summary judgment, AstraZeneca urged that Emory's substantive claims of discrimination need not be addressed because Emory, as a threshold matter, was not "disabled" under the ADA. The District Court agreed and granted AstraZeneca's motion on that basis. We disagree. Because a proper analysis of Emory's claims shows that he has established, at the very least, a genuine issue of fact as to his impairments' substantially limiting effect on his ability to perform manual tasks and learn, we will reverse and remand the District Court's grant of summary judgment in favor of AstraZeneca.

I. BACKGROUND

A. Facts

Emory, who was born with cerebral palsy, has worked as a custodian at AstraZeneca (and its predecessor companies) for more than 27 years. He is the only employee at the Newark, Delaware plant, his assigned facility, who commenced working as a custodian and still holds that position more than 25 years later. During the course of his employment, Emory has applied for several permanent higher-paying jobs with AstraZeneca, but claims that, without accommodation, he "has not been qualified for any of them because of his physical and mental impairments." Appellant's Brief at 12.

Among the physical impairments Emory endures as a result of his cerebral palsy are permanent partial paralysis on his right side, and a right hand, arm and leg he describes as "deformed." Dr. Stephen Rodgers, M.D., a Board Certified Independent Medical Examiner and Occupational and Pain Management Specialist, recently evaluated Emory and found that "the percentages of permanent impairment are right upper extremity - 50% [and] right lower extremity - 25%." Rodgers Rep. of Mar. 9, 2003 at A865.

As a child, Emory was treated at the Crippled Children Program of the Alfred I. duPont Institute of the Nemours Foundation, where he received physical, occupational, and speech therapy. The records reflect that Emory used hand splints, as well as corrective shoes and braces throughout much of his childhood. As a schoolboy, his evaluating physician concluded that Emory "has difficulty with bilateral dressing skills such as lacing. On activities requiring unilateral skills, he is slow but can work independently. He is able to remove his clothing with a minimum of assistance but he is unable to put them on independently." Functional Eval. at A1028.

Though cerebral palsy left Emory with some use of his right side, he cannot lift anything heavy, or open and close his right thumb, which interferes with activities that involve the use of both hands as well those requiring right-handed gripping or dexterity. As a result, Emory cannot tie his shoes or a tie, roll his sleeves, close buttons, or put on a belt. In addition, among other tasks, he is unable to cut his fingernails or toenails, screw the top on a toothpaste tube, cut his own meat, open a jar, pull heavy dishes and pans in or out of the oven, change diapers, carry his children up the stairs, hold a pen or pencil in his right hand, or perform certain basic household chores and repairs.

To deal with the effects of these limitations, Emory continued to receive treatment at Nemours into adulthood, where he often discussed his employment and the obstacles faced there. For example, as memorialized by a therapist, he recounted his attempt at promotion in late 1983:

Rob stated that he understood his limitations in his trunk, hip, and forearm rotation were responsible for the difficulties he was experiencing at his last attempt at job promotion. He knew he could not do the work, but had refused to give up during the trial period (he spent five days training for a new position but was denied the job). He said he fatigued considerably during each two hours of continuous lifting and rotating, resulting in decreased coordination, slowness, carelessness, forgetfulness, tripping, and fine motor incoordination.

duPont 12/1/83 Eval. at A1034. The therapist concluded that "[i]t was clear that his difficulty was with shoulder, forearm and wrist rotations as well as trunk and hip rotations which were impairing his ability to perform the task at the speed required." Id. at A1035. In all, Emory bid unsuccessfully for approximately ten internal promotions over a 12-year period.*fn2

In many instances, his unaccommodated physical inabilities and limitations rendered him incapable of performing the jobs he sought.

In addition to these physical inabilities, Emory also experiences mental limitations stemming from his cerebral palsy. As a result, he was placed in Special Education classes from an early age. He ultimately obtained a diploma from this track; though, as a tenth grade student, Emory's word recognition and math skills were at a second grade level. In 1972, also while a tenth grader, Emory registered a Full Scale I.Q. score of 72; in 1994, he registered a score of 86; and most recently, in 2003, Emory scored a Full Scale I.Q. of 77, placing him in the borderline range of intellectual performance and in the 6th percentile of the general population. On a 2003 Hopkins Verbal Learning Test, Emory showed a deficient learning curve. Additional tests administered in 2003 revealed that in reading, arithmetic and spelling, Emory tested at or below 99 out of 100 adults in his age group. Id. at 878.

As have his physical impairments, Emory claims that such mental limitations have hindered his advancement at AstraZeneca. Rather than reading test questions for himself, he needs to have the questions read aloud for him. Even verbal instructions often leave Emory confused. His quest to attain a Mechanic position at AstraZeneca is illustrative. In 1985, Emory first sought a Mechanic position but was unable to pass the required Bennett Mechanical Comprehensive test. He failed not only that year, but time and again – in 1986, 1987, 1998, and 1999. Mechanic Test Scores at A1149. In 1995, a doctor on Emory's behalf requested that he receive tutoring for the exam, that the exam be taken ...


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