Stephen Speer v. NORFOLK SOUTHERN RAILWAY CORPORATION On Appeal from the United States District…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 04-1323
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STEPHEN SPEER,
Appellant
v.
NORFOLK SOUTHERN RAILWAY CORPORATION
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 02-cv-01748)
District Judge: Honorable Donetta W. Ambrose
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Submitted Under Third Circuit LAR 34.1(a)
January 27, 2005
Before: SCIRICA, Chief Judge, RENDELL and FISHER, Circuit Judges.
(Filed: February 10, 2005)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Appellant Stephen Speer (“Speer”) appeals from the District Court’s grant of
summary judgment in favor of defendant Norfolk Southern Railway Corporation
(“Norfolk”) in a suit filed by Speer alleging he was the object of discrimination in

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violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§
12101 et seq. We affirm the District Court’s grant of summary judgment.
I. Standard of Review and Governing Law
This Court exercises plenary review of a district court’s grant of summary
judgment, and applies the same standard as the district court below – i.e., summary
judgment is proper where no genuine issue of material fact exists, and where, viewing the
facts in the light most favorable to the party against whom summary judgment was
entered, the moving party is entitled to judgment as a matter of law. Marino v. Indus.
Crating Co., 358 F.3d 241, 247 (3d Cir. 2004).
Under the Americans with Disabilities Act (“ADA”), “[n]o covered entity shall
discriminate against a qualified individual with a disability because of the disability of
such individual in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A qualified individual
with a disability is a person “with a disability who, with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8). The ADA defines a “disability” as:
“(A) a physical or mental impairment that substantially limits one or more of the major
life activities of [an] individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C. § 12102(2).

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Claims that an employee was the object of discrimination because he was
“regarded as” having a disability are evaluated under the McDonnell Douglas burden-
shifting paradigm. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n.13
(1973). The McDonnell Douglas analysis proceeds in three stages. Jones v. Sch. Dist. of
Phila., 198 F.3d 403, 410 (3d Cir. 1999). First, the plaintiff must establish a prima facie
case of discrimination. Id. If the plaintiff succeeds in establishing a prima facie case, the
burden then shifts to the employer “to articulate some legitimate, nondiscriminatory
reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. Finally,
should the defendant carry this burden, the plaintiff then has the opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination. Jones, 198 F.3d at 410 (citing
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)).
In order to make out a prima facie case of discrimination under the ADA, thereby
satisfying the first prong of the McDonnell Douglas burden-shifting paradigm, a plaintiff
must be able to establish that he (1) has a disability; (2) is a qualified individual; and
(3) has suffered an adverse employment action because of that disability. Deane v.
Pocono M ed. Ctr., 142 F.3d 138, 142 (3d Cir. 1998) (citing Gaul v. Lucent Techs., Inc.,
134 F.3d 576, 580 (3d Cir. 1998)).

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II. Discussion
The factual background of this action, which is lengthy and complicated, was
thoroughly discussed by the District Court and is known to the parties. Accordingly, we
will focus in this opinion on the rationale for our decision.
The District Court concluded that Norfolk did not regard Speer as having a
disability and that he was not subject to any adverse employment actions because he was
regarded as disabled. Speer argues that both of these conclusions are wrong, yet the
evidence he presents fails to support the opposite of either contention.
A person is “regarded as” having a substantially limiting disability where (1) a
covered entity mistakenly believes that a person has a physical impairment that
substantially limits one or more major life activities, or (2) a covered entity mistakenly
believes that an actual, nonlimiting impairment substantially limits one or more major life
activities. Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999). Upon the record,
there is no evidence that Norfolk mistakenly believed that Speer’s bi-polar disorder and
the medication he took to control the symptoms thereof substantially limited him in a
major life activity.
After Norfolk discovered that Speer took prescription medication, Speer was only
prohibited from driving the five-ton boom trucks, which carry potentially dangerous
substances, such as oxygen and acetylene. Speer continued to drive three-man and six-
man pickup trucks and continued to receive the same wages despite the change in job

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responsibilities. Even when Norfolk’s Director of Medical Services instructed Speer that
he should not take his medication within six hours of reporting to work or while on duty,
Speer’s supervisor, Mr. Headrick, told Speer to continue to work at his assigned jobs,
except driving the five-ton boom truck. This evidence does not suggest that Norfolk
regarded Speer as disabled, but rather suggests that Norfolk reasonably wanted to restrict
Speer’s activities with respect to the potentially dangerous duty of driving a five-ton
boom truck while ascertaining whether the drugs interfered with his abilities.
Additionally, even assuming Speer was “regarded as” having a disability and was a
qualified individual, satisfying the first two prongs of a prima facie case of discrimination
under the ADA, there is no evidence to demonstrate that Speer suffered any adverse
employment action. An adverse employment action is one which alters the employee’s
compensation, terms, conditions, or privileges of employment, deprives him or her of
employment opportunities, or adversely affects his or her status as an employee. See
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997). As the District Court
noted, the events which Speer argues constituted adverse employment actions involved
employees other than those who Speer contends regarded him as disabled, or were made
on other non-discriminatory bases. Speer was released from his various positions either
as a result of his lack of seniority under the terms of the union’s collective bargaining
agreement, or because he lacked the proper CDL endorsement for the positions in
question. He was finally terminated from his job when he failed to report for duty after

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being advised by both the Supervisor of Administrative Services at Norfolk and his union
representative that he should report to work. Accordingly, there is no evidence that Speer
suffered any adverse employment actions because he was regarded as disabled.
For these reasons, we will affirm the entry of summary judgment for Norfolk.
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