Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-22-2000

Marinelli v. City of Erie
Precedential or Non-Precedential:

Docket 99-3027




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Filed June 22, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3027

ALFRED F. MARINELLI

v.

CITY OF ERIE, Pennsylvania,

       Appellant

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 94-cv-00039E)
District Judge: Honorable Maurice B. Cohill, Jr.

Argued: Wednesday, May 10, 2000

BEFORE: GREENBERG, McKEE and GARTH,
Circuit Judges

(Opinion Filed: June 22, 2000)

       Gregory A. Karle (Argued)
       Valerie J. Sprenkle
       626 State Street, Room 505
       Erie, PA 16501

       Attorneys for Appellant

       William Taggart (Argued)
       Frontier Place
       1359 West 6th Street
       Erie, PA 16505

       Attorney for Appellee
OPINION OF THE COURT

GARTH, Circuit Judge:

At the time of its passage, many rightfully hailed the
Americans with Disabilities Act (ADA) as comprehensive
civil rights legislation. See, e.g., Statement by President
George Bush upon Signing S.933, 26 WEEKLY COMP. PRES.
DOC. 1165 (July 30, 1990) (stating that the ADA "promises
to open up all aspects of American life to individuals with
disabilities"). Notwithstanding its comprehensive nature,
however, the ADA's employment provisions specifically limit
its protections to those individuals who can establish that
they are indeed "disabled." Upon the ADA's promulgation,
both the House and the Senate stipulated that Congress
did not intend the ADA to protect those who suffered from
"minor, trivial impairments"; to the contrary, an individual
is only "disabled" under the auspices of the ADA if his
"important life activities are restricted as to the conditions,
manner, or duration under which they can be performed in
comparison to most people." H.R. REP. NO. 101-485, at 52
(1990); S. Rep. No. 101-116, at 23 (1989).

Alfred Marinelli ("Marinelli") brought the present action
against the City of Erie ("the City") in February 1994.
Marinelli essentially averred that the City violated the ADA
when it failed to provide him with an accommodation that
would allegedly have allowed him to return to his previous
position as a member of the City's shift crew,
notwithstanding the residual medical difficulties from which
he suffered as a result of injuries sustained in an earlier
truck accident. After Marinelli had submitted his evidence
at trial, the City moved the District Court for judgment as
a matter of law, arguing that Marinelli had not introduced
sufficient evidence for a reasonable juror to conclude that
he was "disabled" under the ADA. The District Court denied
the motion, and the jury returned a verdict in favor of
Marinelli. Because the record discloses that Marinelli only
suffered from a "minor impairment" as opposed to the more
substantial forms of "disability" Congress intended to
protect through the ADA, we will vacate the judgment

                               2
entered in favor of Marinelli, and remand this matter to the
District Court with instructions to enter judgment as a
matter of law in favor of the City.

I

Marinelli was born and raised in Erie, Pennsylvania. He
has received his high school diploma, and is now taking
college-level classes in pursuit of his teacher certification.
After his graduation from high school, Marinelli held several
low-paying and low-skilled jobs including that of laborer,
janitor, vending machine maintenance, and street meter
reader.

Marinelli's employment with the City began on July 16,
1974, when he assumed a position as a laborer in the
City's waste water treatment plant. Eventually, Marinelli
transferred into the City's Streets Department as a laborer,
a position that entailed many manual tasks, such as
cutting grass, filling pot holes, and removing fallen leaves
from the street. In 1978, Marinelli became a truck driver for
the City, driving one or five ton trucks that, primarily
during the winter months, were utilized to clear the snow
from City streets, and apply salt to the streets in order to
prevent icing. During the summer months, Marinelli was
responsible for laying asphalt.

In 1989, Marinelli obtained a position with the City's
"shift crew" that he possessed at all times relevant to the
present appeal. Although Marinelli admitted that he never
saw an actual job description for the "shift crew" position,
he testified that the job consisted of a myriad of different
tasks, including answering telephones, responding to
emergency needs for labor, pumping gas for City vehicles,
and snow plowing during the cold winter months of
Northern Pennsylvania. Marinelli indicated that he and his
colleagues divided this labor amongst themselves according
to their varied preferences on a given day, and that it was
not uncommon for one individual to work primarily on one
task exclusively -- especially if that individual's ability to
work was hampered by medical problems.

In the early morning hours of January 18, 1991,
Marinelli was driving a snow plow on City streets when

                               3
another individual driving a pick-up truck lost control of
his vehicle and collided with Marinelli. Although Marinelli
did not seek immediate medical assistance, he alleges that
he experienced such great pain within thirty-six hours that
he visited the emergency room at his local hospital. The
emergency room doctor told Marinelli simply to rest, and to
seek a consultation with an orthopaedist. Dr. Rahner, the
orthopaedist with whom Marinelli consulted, ordered an
MRI and referred Marinelli to Dr. Duncombe, a neurologist.
Dr. Duncombe conducted basic neurological tests and
eventually suggested that Marinelli receive physical therapy
as a form of treatment.

During this time, Marinelli had not returned to work and
had sought worker's compensation benefits. At trial,
Marinelli testified that he could not return to work because
he had continuing residual pain in his arm. More
specifically, Marinelli stated that "[t]he main factors were
increasing pain with repetitive use of my left arm. The more
I used my arm, the more pain I would get, the more I'd
have to lay down till [sic] it would go away." App. at 70a. In
more practical terms, Marinelli alleged that after the injury,
he could no longer perform household chores, including
scrubbing floors, washing walls, and shoveling the snow
from the driveway. Marinelli also testified that as a result of
his injuries, he remains unable either to operate a circular
saw or to drive the snow plows that the City utilizes and
requires typical shift crew members to employ. Particularly,
Marinelli stated the following:

       I can do most of the shift crew work, if not all of it,
       depending on the weather. The only problem I would
       have doing the shift crew work would be when it's
       really cold or really wet, that's when my arm and neck
       kick up really bad.

App. at 97a.

When Marinelli attempted to return to his former position
in October 1992, he asked the City to modify his workload
to take into account his medical difficulties. Specifically,
Marinelli requested the City to allow him to return to the
shift crew position he held prior to his injury, except that
he would primarily answer phones (and perform other

                               4
sedentary tasks) rather than perform all of the tasks for
which a typical shift crew member would be responsible.
Indeed, as stated earlier, Marinelli testified that the City
had structured other shift crew members' work load in a
like fashion in order to compensate for their particular
impairments. The City refused to provide such an
accommodation to Marinelli, and on January 3, 1993,
Marinelli filed a charge against the City with the EEOC,
claiming that the City had discriminated against him as a
result of his injuries, and therefore in violation of the ADA.

After Marinelli filed his charge with the EEOC, the parties
entered a stalemate period, with neither Marinelli nor the
City taking much action to find Marinelli a suitable position
with the City. By the summer of 1993, Marinelli began
looking for alternative positions with other employers.
Because this process did not yield any success for
Marinelli, he allegedly became very depressed, and
eventually sought the assistance of a state vocational
counselor in December 1994. The Pennsylvania Office of
Rehabilitation determined that Marinelli, having already
obtained a number of college credits prior to his
employment with the City, qualified for statefinancial aid
in order to complete his college education. Marinelli
pursued this course of action, and as of this date, has
nearly completed his college studies, which will ultimately
lead to his teaching certificate. He claims that it was for
this reason that he rejected the City's offer of a stockroom
position in February 1996.

Because the EEOC failed to act on Marinelli's petition
within the required 180 days, Marinelli obtained a"right-to-
sue" letter, and instituted the present action in the Western
District of Pennsylvania on February 25, 1994. Subsequent
to discovery, the parties proceeded to a jury trial on August
21, 1996. The District Court also bifurcated the issues for
which both it and the jury were responsible. The jury was
called on to decide whether the City had violated the
provisions of the ADA and was therefore liable to Marinelli,
and if so, the extent of Marinelli's non-economic
compensatory damages. The remaining damage issues
(back pay, reinstatement, front pay, prejudgment interest,
and attorney fees), if the jury found the City liable, were
reserved for the District Court's determination.

                               5
At trial, the City moved the District Court for judgment
as a matter of law after both Marinelli and the City had
completed entering their evidence, and the District Court
denied both motions. On August 28, 1996, the jury
returned a verdict against the City and assessed Marinelli's
non-economic compensatory damages at $85,000. The City
then renewed its motion for judgment as a matter of law
and filed a motion for a new trial, both of which the District
Court denied through an order dated October 28, 1996. The
District Court granted the City's motion to certify such an
order pursuant to Federal Rule of Civil Procedure 54(b), in
order for the City to attempt an interlocutory appeal. This
Court, however, dismissed the City's attempt for a lack of
appellate jurisdiction through a memorandum opinionfiled
on December 29, 1997.

After remand, the District Court conducted a bench trial
concerning the damage issues that remained before the
court as a result of the bifurcated trial structure. In an
order and accompanying opinion filed on November 5,
1998, see Marinelli v. City of Erie, 

(W.D.
Pa. 1998), the District Court awarded Marinelli-- with
interest -- back pay, a reimbursement for health insurance,
and attorney fees for his counsel (both with respect to the
present ADA claim and Marinelli's attempt to secure
worker's compensation benefits). Including the jury's
compensatory damage award, Marinelli was awarded
$241,465.53 in damages through a final judgment order
entered by the District Court on December 22, 1998. This
timely appeal ensued.

II

The District Court exercised subject matter jurisdiction
over Marinelli's ADA cause of action pursuant to 28 U.S.C.
S 1331. Our appellate jurisdiction is based upon the final
order doctrine of 28 U.S.C. S 1291.

III

We turn to the City's predominant argument -- that the
District Court erred in denying its motion for judgment as
a matter of law insofar as Marinelli failed to introduce

                                6
evidence sufficient to establish that he was "disabled"
under the ADA. With respect to motions for judgment as a
matter of law, Federal Rule of Civil Procedure 50(a)(1) states
as follows:

       If during a trial by jury a party has been fully heard on
       an issue, and there is no legally sufficient basis for a
       reasonable jury to find for the party on that issue, the
       court may determine the issue against that party and
       may grant a motion for judgment as a matter of law
       against that party with respect to a claim or defense
       that cannot under the controlling law be maintained or
       defeated without a favorable finding on that issue.

FED. R. CIV. P. 50(a)(1). We have previously held that "[a]
motion for judgment as a matter of law under Federal Rule
50(a) `should be granted only if, viewing the evidence in the
light most favorable to the nonmoving party, there is no
question of material fact for the jury and any verdict other
than the one directed would be erroneous under the
governing law.' " Beck v. City of Pittsburgh, 

,
971 (3d Cir. 1996) (quoting Macleary v. Hines , 

, 1083 (3d Cir. 1987)). Our review over the District
Court's denial of the City's motion for judgment as a matter
of law is plenary, and we apply an identical standard to
that which the District Court was obligated to employ. See
Lightning Lube, Inc. v. Witco Corp., 

, 1166 (3d
Cir. 1993).

IV

In order to state a cognizable cause of action under the
ADA, a putative plaintiff must establish that he is a
"qualified individual with a disability." See 42 U.S.C.
S 12112(a); Cleveland v. Policy Management Sys. Corp., 

, 806 (1999) (quoting 42 U.S.C. S 12111(8)). The
statute defines "qualified individual with a disability" as "an
individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires."

Further, and of foremost importance for
purposes of the present appeal, a "disability" is defined as
either (1) "a physical or mental impairment that

                               7
substantially limits one or more of the major life activities
of such [an] individual"; (2) "a record of such impairment";
or (3) "being regarded as having such an impairment." 

12102(2)(A)-(C). Both parties concede that Marinelli
could not qualify as disabled under the two latter
provisions listed above (i.e., either having a record of or
being regarded as having an impairment); as a result, the
present appeal turns exclusively on whether Marinelli
introduced sufficient evidence for any reasonable juror to
conclude that he suffered from "a physical or mental
impairment that substantially limit[ed] one or more [of his]
major life activities."

A

The EEOC regulations, in pertinent part, define
"impairment" as follows:

       Any physiological disorder, or condition . . . or
       anatomical loss affecting one or more of the following
       body systems: neurological, musculoskeletal, special
       sense organs, respiratory . . . cardiovascular,
       reproductive . . . .

29 C.F.R. S 1630.2(h)(1) (1999). Further, the EEOC's
interpretative guidance with respect to the ADA
distinguishes true impairments from mere physical
characteristics, such as eye and hair color, pregnancy, or
personality traits. 

1630.2(h). Although Marinelli's
difficulties do not appear to arise from a "disorder" to the
extent that the term is synonymous with "disease," his
snow plow accident left him with residual pain that is
properly understood as a "condition" that affects his
musculoskeletal system. See, e.g., Plant v. Morton Int'l, Inc.,
No. 99-3445, 

, at *7 (6th Cir. May 12,
2000) (holding a "back strain" to qualify as an impairment
for ADA purposes). Indeed, the City, by failing to argue to
the contrary, appears to concede that Marinelli suffered
from an "impairment" within the purview of the ADA.

The City does argue, however, that Marinelli's ADA claim
should fail because he has not introduced any medical
evidence to support his allegations of impairment. We have

                                8
yet to confront this issue directly.1 The most oft-cited court
of appeals discussion of the issue is that of the First Circuit
in Katz v. City Metal Co., 

(1st Cir. 1996). In
Katz, the court held that

       [t]here is certainly no general rule that medical
       testimony is always necessary to establish disability.
       Some long-term impairments would be obvious to a
       jury (e.g., a missing arm) and it is certainly within the
       realm of possibility that a plaintiff himself in a
       disabilities case might offer a description of treatment
       and symptoms over a substantial period that would
       [allow] the jury [to] determine that[the plaintiff] did
       suffer from a disability.

In other words, the necessity of medical testimony
turns on the extent to which the alleged impairment is
within the comprehension of a jury that does not possess a
command of medical or otherwise scientific knowledge.
Building upon this notion, other courts have held similarly,
and have added that a lack of medical testimony should be
a factor cutting against a plaintiff 's claim of disability. See,
e.g., United States v. City of Denver, 

(D. Colo. 1999) (holding that a lack of physician testimony
is but one factor in determining whether a plaintiff has met
his burden to establish disability); Colwell v. Suffolk County
Police Dep't, 

, 1425-26 (E.D.N.Y. 1997)
_________________________________________________________________

1. In Taylor v. Phoenixville Sch. Dist., 

, 308 n.3 (3d Cir.
1997), which presented claims of disability discrimination under both
the ADA and the Pennsylvania Human Relations Act ("PHRA"), we
restated the fact that the New Jersey Supreme Court had held, in the
context of evaluating a claim under the New Jersey Law Against
Discrimination ("LAD"), that " `expert medical testimony is required to
establish the fact of the employee's [handicap].' " See 

n. 3
(quoting Gaul v. AT&T, Inc., 

(D.N.J. 1997), aff 'd sub
nom on other grounds Gaul v. Lucent Tech., Inc., 

(3d Cir.
1998)) (quoting in turn Clowes v. Terminix Int'l, Inc., 

, 806
(N.J. 1988)). Clearly our observation in Taylor did not pertain to the
ADA. See 

(holding that the plaintiff, who
claimed that he suffered from alcoholism, failed to establish that he was
"handicapped" under LAD because there was no testimony in the record
from a treating or examining physician demonstrating that the plaintiff
had been diagnosed as an alcoholic).

                               9
(holding that "nothing in the ADA compels the conclusion
that medical evidence is necessary to establish disability
status"); rev'd on other grounds, 

(2d Cir.
1998). Cf. Schwimmer v. Kaladjian, 

, 640
(S.D.N.Y. 1997) (holding, in a section 1983 case, that
medical testimony is more persuasive than the witness's
own recapitulation of his injuries).2

With respect to the instant matter, Marinelli's alleged
medical difficulties (i.e., arm and neck pain) are among
those ailments that are the least technical in nature and
are the most amenable to comprehension by a lay jury. As
such, Marinelli's failure to present medical evidence of his
impairment, in and of itself, does not warrant judgment as
a matter of law in favor of the City. Nevertheless, given the
other weaknesses in Marinelli's disability claim, see text
infra, the fact that Marinelli did not produce a shred of
medical evidence to substantiate his allegations of
impairment argues in favor of the City's position.

B

Although Marinelli introduced evidence sufficient for a
reasonable juror to conclude that he suffered an
impairment, as stated above, he must also establish that
such an impairment "significantly limited one or more
major life activity." The EEOC's interpretive guidance
indicates that "major life activities" "are those basic
activities that the average person in the general population
can perform with little or no difficulty." 29 C.F.R. App.
S 1630.2(i) (1999). Operating from this premise, the actual
regulations list "caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing,
learning, and working" as examples of major life activities.
_________________________________________________________________

2. Although this view is certainly that which most comports with the
terms of the ADA and with notions of common sense, it is not without
its critics. See, e.g., Poldermann v. Northwest Airlines, Inc., 40 F.
Supp.
2d 456, 463 (N.D. Ohio 1999) (holding that "plaintiff 's testimony as to
her ability to work with the public, without supporting medical
testimony, is not sufficient to establish her prima facie case under the
ADA" (citing Douglas v. Victor Capital Grp. , 

, 392
(S.D.N.Y. 1998))).

                                10


Indeed, the Supreme Court recently held
that the ability to reproduce qualified as a major life
activity. See Bragdon v. Abbott, 

, 639-40
(1998).

The impairment must not only affect the way in which
the plaintiff engages in such an activity, however. To the
contrary, a plaintiff must establish that the impairment
substantially limits the ability to engage in the activity, and
on this score, the regulations are rather specific. Pursuant
to 29 C.F.R. S 1630.2(j), the EEOC defines"substantially
limits" as leaving the plaintiff (1) "unable to perform a major
life activity that the average person in the general
population can perform; or" (2) "significantly restricted as to
the condition, manner, or duration under which an
individual [the plaintiff] can perform a particular major life
activity as compared to the condition, manner, or duration
under which the average person in the general population
can perform that same major life activity." 29 C.F.R.
S 1630.2(j)(1) (i)-(ii) (1999).3

Three relatively recent opinions from this court assist in
giving meaning to these rather abstruse concepts. In Taylor
v. Pathmark Stores, Inc., 

(3d Cir. 1999), a
supermarket cashier who had undergone arthroscopic
surgery for an ankle problem and walked with crutches
brought an ADA claim against his employer. See 

Taylor, the cashier, indicated that he could walk or stand
for fifty minutes without rest. See 

Finding that
Taylor was no different than an average person with respect
to walking or standing during this fifty minute stretch, and
as such, could "carry out most regular activities that
require standing and walking," we held that Taylor was not
disabled within the purview of the ADA. 

In so
holding, we stated that the "purpose of the ADA would be
_________________________________________________________________

3. The EEOC's regulations also provide that "[t]he following factors
should be considered in determining whether an individual is
substantially limited in a major life activity: (i) the nature and
severity of
the impairment; (ii) the duration or expected duration of the impairment;
and (iii) the permanent or long term impact, or the expected permanent
or long term impact of or resulting from the impairment." 29 C.F.R.
S 1630.2(j)(2)(i)-(iii).

                               11
undermined if protection could be claimed by those whose
relative severity of impairment was widely shared." 

v. Drexel University, 

(3d Cir. 1996),
the plaintiff had suffered a hip fracture, was left with a
rather noticeable limp, and as a result, claimed that he was
"disabled" under the ADA because he could not walk more
than a mile without stopping. See 

Holding
that "comparatively moderate restrictions on the ability to
walk are not disabilities," we denied the plaintiff 's claim of
disability, and affirmed the District Court's grant of
summary judgment to the defendant. 

see also
Penchinson v. Stroh Brewery Co., 

, 674
(E.D. Pa. 1996) (holding that an individual who could not
walk at full pace and had to use both feet to walk up the
stairs was not disabled).

Finally, in Taylor v. Phoenixville Sch. Dist. , 

(3d Cir. 1999) (see 

), the plaintiff argued that
her bipolar and manic depressive disorders qualified her for
disability status under the ADA. See 

Although
the "episodes" from which plaintiff suffered as a result of
her disorders were rather severe, the panel acknowledged
that such problems were, for the most part, controlled by
her medication.4 See 

. Nonetheless, the
medication that the plaintiff took to ease her symptoms
produced many side effects that from time-to-time would
leave the plaintiff severely nauseated with an inability to
concentrate. See 

our view, these "repeated
flare-ups" could "have a cumulative weight that wears down
a person's resolve and continually breaks apart longer-term
projects," we held the plaintiff to be disabled under the
ADA. 

One may glean two general propositions from these
opinions: (1) courts must adjudicate ADA claims on a case-
by-case basis; and (2) we have held only extremely limiting
_________________________________________________________________

4. In two 1998 term decisions, the Supreme Court held that a court
must look at an ADA plaintiff 's impairment after corrective measures are
taken -- e.g., medication, eyeglasses -- in order to determine whether
such an impairment was substantially limiting to the plaintiff 's major
life activities. See Albertson's, Inc. v. Kirkinburg, 

,
2169
(1999); Sutton v. United Air Lines, Inc., 

, 2146 (1999).

                               12
disabilities -- in either the short or long-term-- to qualify
for protected status under the ADA. Having said this, we
recognize that Marinelli argues that his impairment
substantially limits his ability to engage in a major life
activity in three ways: (1) he is unable to perform
household chores, such as cleaning his floors; (2) he is
unable to lift objects on greater than a sedentary scale; and
(3) he is unable to operate the type of snow plow utilized by
the City, and is thus substantially limited from working.5

i.

With respect to Marinelli's first argument, courts have
generally held that "cleaning," or, more generally, "doing
housework," does not qualify as a major life activity.
Although the EEOC regulations list "caring for oneself " as
a major life activity, courts interpreting this regulation have
held that such relates only to basic activities such as
washing dishes and picking up trash. See Dutcher v. Ingalls
Shipbuilding, 

, 726 (5th Cir. 1995); see also
Lockett v. Wal-Mart Stores, Inc., No. 99 0247-CB-C, 

, at *8 (S.D. Ala. Mar. 8, 2000); Richards v.
American Axle & Man., Inc., 

, 870 (E.D.
Mich. 2000). In other words, "cleaning" is only considered
a major life activity to the extent that such an activity is
necessary for one to live in a healthy or sanitary
environment. On the other hand, merely "performing
housework other than basic chores" does not qualify as a
major life activity. Colwell v. Suffolk County Police Dep't,

, 643 (2d Cir. 1998); see also Weber v. Strippit,
Inc., 

, 914 (8th Cir. 1999), cert. denied, 120 S.
Ct. 794 (2000) (holding that shoveling snow, gardening, and
mowing the lawn were not major life activities).

With respect to his ability to clean, Marinelli testified as
follows:

       Everything changed. I used to scrub the floors in the
_________________________________________________________________

5. The EEOC's interpretive guidance stipulates that we should not
inquire into whether an individual is substantially limited in the major
life activity of working unless the individual "is not substantially
limited
with respect to any other major life activity." 29 C.F.R. App. S
1630.2(j).

                               13
       house, wash the walls, do the dishes, clean the
       counters, do the housework. . . . After the injury, I
       couldn't do most of that. . . . Like if I tried to wash a
       floor, I'm right-handed. I can't use my left hand. And
       even when you're using your right hand, if I put weight
       on the left hand, I'm collapsing. It was ridiculous.

App. at 71a (emphasis added). The only task within
Marinelli's discussion with respect to cleaning that courts
have even considered a major life activity is washing dishes.
Even though Marinelli casually mentioned such a task
during his testimony, he failed to indicate how his medical
difficulties affected his ability to wash the dishes. Further,
Marinelli stated that his injury only limited his ability to do
most of the tasks listed above. It is possible, therefore,
without further explanation, that Marinelli continued to be
able to wash dishes after the injury. The only task that
Marinelli discussed in detail is that of washing thefloor,
which, as stated above, is not subsumed within the activity
of "caring for oneself." At the very least, Marinelli's cursory
statement concerning household activities is not sufficient
to survive judgment as a matter of law. We therefore hold
Marinelli's inability to perform certain household chores
does not render him disabled.

ii.

Marinelli argues next that his inability to lift articles at
more than a sedentary level establishes that he is
substantially limited in a major life activity. To be sure, as
stated above, the EEOC regulations indicate that"lifting" is
a major life activity. Unlike his assertion concerning
housework, therefore, our present inquiry is geared towards
whether Marinelli's injury substantially limits his ability to
lift. The only evidence introduced at trial related to
Marinelli's lifting difficulties is found within the deposition
of Dr. Fred Cohen, who examined Marinelli on December
19, 1995, after the instant action had been filed, and at the
behest of the City. Cohen testified that Marinelli had
informed him that Marinelli was unable to do any"heavy
work greater than ten pounds." App. at 484a. The
deposition transcript indicates that Marinelli informed
Cohen of this difficulty -- and the specificity of his weight

                               14
restriction -- without any supporting materials; in other
words, Marinelli simply estimated the weight that he
believed he could lift.

Initially, we note that the City, not Marinelli, introduced
Dr. Cohen's deposition testimony into the record at trial.
Because, as stated earlier, Marinelli bears the burden of
establishing that he is disabled within the meaning of the
ADA, he must affirmatively introduce evidence to this end
in order to survive a motion for judgment as a matter of
law. Indeed, the City appeals not only the District Court's
denial of the motion for judgment as a matter of law it
submitted after all the evidence had been introduced; the
City also argues that the District Court erred in denying the
motion for judgment as a matter of law it submitted
subsequent to the close of the plaintiff 's case-in-chief (i.e.,
before Dr. Cohen's testimony had been introduced). As a
result, Marinelli cannot rely upon Dr. Cohen's deposition
testimony in his effort to avoid judgment as a matter of law.

Even if we were to consider such evidence, however,
courts have rejected claims of disability based on an
inability to lift similar weights to those with which Marinelli
alleges to experience difficulty. For instance, in Williams v.
Channel Master Satellite Sys., Inc., 

(4th Cir.
1996), the Fourth Circuit held a twenty-five pound lifting
restriction not significantly limiting. See 

The
Fifth and Eighth Circuits have held similarly. See Ray v.
Glidden Co., 

, 229 (5th Cir. 1996); Aucutt v. Six
Flags Over Mid-America, Inc., 

, 1319 (8th Cir.
1996); see also Thompson v. Holy Family Hosp. , 

(9th Cir. 1997) (per curiam) (holding that a woman that
could only lift twenty-five pounds consistently,fifty pounds
twice a day, and one hundred pounds once a day was not
disabled within the meaning of the ADA). As Marinelli's ten-
pound limitation is not far removed from the twenty-five
pound restrictions our sister circuits have held not to
render one disabled under the ADA, we would also hold
that Marinelli's lifting restriction does not render him
sufficiently different from the general population such that
he is substantially limited in his ability to lift.

                               15
iii.

Marinelli finally argues that his physical impairment
significantly limits his ability to work, which he properly
classifies as a major life activity. See 29 C.F.R. SS 1630.2(i);
1630.2(i)(3) (1999). The EEOC has stipulated that in order
for one to be properly characterized as substantially limited
from working as required by the ADA, an individual must
be unable "to perform either a class of jobs or a broad
range of jobs in various classes as compared to the average
person having comparable training, skills and abilities." 

To the contrary, the mere"inability to
perform a single, particular job" will not suffice to establish
a substantial limitation with respect to working. 

interpretive guidance expands on this point, stating
that an individual that "is unable to perform a particular
job for one employer, or . . . is unable to perform a
specialized job" is not substantially limited in his ability to
work. 

1630.2(j).6 Both the EEOC and the courts
therefore have required a plaintiff to show that his or her
impairment prevents them from engaging in a category of
jobs.

Marinelli argues that the restrictions placed upon his
work by Dr. Cohen -- that he was only capable of a
"medium range of exertion" -- limits his ability to perform
"all super heavy and heavy jobs and all medium, light and
sedentary positions requiring bilateral grip or repetitive use
of the left extremity." Brief of Appellee, at 19. 7 This
assertion, however, only lists the restrictions that a
_________________________________________________________________

6. In this respect, the interpretive guidance offers a rather helpful
example:

       [A]n individual who cannot be a commercial airline pilot because of
       a minor vision impairment, but who can be a commercial airline co-
       pilot or a pilot for a courier service, would not be substantially
       limited in the major life activity of working.

29 C.F.R. App. S 1630.2(j) (1999).

7. We note again that Marinelli did not offer Dr. Cohen's deposition
testimony as a part of his case-in-chief, and as such, is not entitled to
utilize the same to avoid judgment as a matter of law. Because, as
above, Dr. Cohen's testimony cannot assist Marinelli in any event, we
will discuss the merits of Marinelli's argument.

                               16
physician has placed on Marinelli's work; it does not
indicate, as stated above, the class of jobs (e.g.,
meatpacker, pilot, chef) from which he is disqualified as a
result of his impairment (and resulting restrictions).

Further, courts have held such general averments
insufficient to establish disability status under the ADA. In
Broussard v. University of California, 

(9th
Cir. 1999), the plaintiff introduced a vocational
rehabilitation expert's opinion that she could only work at
the "sedentary to light" categories of workload. See 

The Ninth Circuit held that because an expert's
opinion only took "categories of jobs" into account, such
evidence could not serve to defeat a motion for summary
judgment with respect to whether the plaintiff was
sufficiently limited from working. See 

(emphasis
added) (citing Thompson v. Holy Family Hospital , 

(9th Cir. 1997) (per curiam)). Likewise, in McKay v.
Toyota Motor Mfg., U.S.A., Inc., 

(6th Cir.
1997), the Sixth Circuit held that a plaintiff 's carpel tunnel
syndrome, which restricted her from performing medium to
heavy work (i.e., any position requiring "repetitive motion or
frequent lifting of more than ten pounds") was insufficient
to establish that the impairment disqualified her from a
broad range of jobs. 

Finally, in Colwell v.
Suffolk County Police Dep't, 

(2d Cir. 1998),
the Second Circuit held that testimony suggesting that a
plaintiff could only perform light or sedentary work merely
established that the individual was disqualified from a
"narrow range of jobs," and therefore was insufficient to
establish that the plaintiff was disabled within the meaning
of the ADA. See 

As a result, Marinelli cannot
avoid judgment as a matter of law simply by pointing to the
restrictions that Dr. Cohen placed upon his work.

Marinelli also testified that he could not operate the large
snow plows utilized by the City. More specifically, Marinelli
stated the following:

       [I]t is my position that I can't drive a large snow plow.
       . . . [Because] [w]hen you're driving a large truck like
       that, you're going in and out of traffic, you do a lot of
       scanning with your mirrors, you do all the driving with
       your left hand, your right hand is always on 

. With respect to the other tasks required of
shift crew members, as we reported earlier, Marinelli
indicated that he would have little difficulty:

       I can do most of the shift crew work, if not all of it,
       depending on the weather. The only problem I would
       have doing that shift crew work would be when it's
       really cold or really wet, that's when my arm and neck
       kick up really bad.

App. at 97a. As a result, Marinelli's assertion must be
limited to his ability to drive the more sophisticated snow
plows used by the City.

This argument, however, is far removed from being
unable to perform a "broad range of jobs" as the EEOC
regulations require. To the contrary, Marinelli's claim
resembles the example provided by the EEOC's interpretive
guidance; i.e., a pilot with an eye impairment that
disqualifies him from flying commercial aircraft, but does
not forbid him from serving as a co-pilot, or as a pilot on
other aircraft. See 29 C.F.R. App. S1630.2(j) (1999). As the
interpretive guidance advises, an individual faced with such
a scenario is not disabled under the ADA.

On this score, a pair of Seventh Circuit decisions are
quite apposite to the present appeal. In Best v. Shell Oil Co.,

(7th Cir. 1997), the plaintiff had a knee
impairment that made it difficult to drive most of the trucks
in defendant Shell's fleet. See 

Although the
court believed that the plaintiff had presented sufficient
evidence to survive summary judgment, it framed the
question posed to the district court on remand as whether
the plaintiff 's knee injury prevented him from driving most
trucks in general, or only those trucks that comprised
Shell's fleet. See 

If, as is the case with
Marinelli, the plaintiff 's impairment only precluded him
from driving the particular trucks Shell used, but did not
prevent him from driving the majority of trucks utilized in
the industry, he would not be disabled. See 

Baulos v. Roadway Express, Inc., 

(7th Cir. 1998), a plaintiff who suffered from kidney
troubles that prevented him from sleeping inside a truck
claimed that he was substantially limited in his ability to

                               18
work as a truck driver. See 

however,
showed that the plaintiff 's impairment only disqualified
him from trucking positions that involved overnight travel,
and therefore, the plaintiff could perform the majority of
other trucking positions. See 

The Baulos court
thus held that the plaintiff was not disabled. See id.; see
also Thompson v. Dot Foods, Inc., 

, 626
(C.D. Ill. 1998) (holding plaintiff truck driver to be
substantially limited in the major life activity of working in
case in which plaintiff had submitted evidence establishing
that he could not perform any trucking position involving
road travel).

In the present appeal, the evidence -- viewed in the light
most favorable to Marinelli -- indicates only that Marinelli's
injury precluded him from driving the type of snow plow
utilized by the City. He has not introduced any evidence to
suggest that his injury would hamper an attempt to obtain
a position driving any other truck utilized by any employer
-- including the City. Indeed, the evidence is quite to the
contrary, as Marinelli testified that he obtained a
commercial driver's license shortly after his accident. App.
at 115a. We therefore hold that Marinelli did not introduce
evidence sufficient for a reasonable juror to conclude that
he was substantially limited in the major life activity of
working.8
_________________________________________________________________

8. Marinelli also attempts to equate his successful attempt to receive
worker's compensation benefits with being disabled pursuant to the
ADA. In Pennsylvania, worker's compensation benefits are only paid to
those who have "lost earning capacity." Fink v. Workmen's Compensation
Appeal Bd., 

, 857 (Pa. Commw. Ct. 1996). Because an ADA
plaintiff must establish that he or she can perform the "essential
functions" of the job he seeks, see 42 U.S.C. S 12111(8), it would appear
that a finding of worker's compensation benefits would contradict -- not
support -- a claim of disability under the ADA. Although the Supreme
Court has held that plaintiffs ought not be entirely estopped from
seeking ADA relief merely because they were the recipient of worker's
compensation (or social security) benefits, see Cleveland v. Policy
Management Sys. Corp., 

, 807 (1999), obtaining worker's
compensation benefits certainly does not mandate a finding of disability
under the ADA.

                               19
iv.

Marinelli failed to present evidence at trial that would
substantiate his claim that, as required by the ADA, he was
substantially limited in a major life activity. The District
Court thus erred in denying the City's initial motion for
judgment as a matter of law.

V

Congress did not intend for the ADA to protect all
individuals who suffer from medical difficulties; rather,
Congress desired to shield from adverse employment
actions those individuals whose medical troubles prevented
them from engaging in significant daily activities. Because
the record does not reveal that Marinelli submitted evidence
that would allow a reasonable juror to conclude that he was
a member of the latter class of individuals, we hold that the
District Court erred in denying the City's motion for
judgment as a matter of law.9 We will therefore vacate the
final judgment order awarding Marinelli $241,465.53, and
entered by the District Court on December 22, 1998, and
will further remand this matter to the District Court with
the direction to enter judgment as a matter of law in favor
of the City.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

9. The City raised other issues in this appeal regarding the District
Court's various rulings in the present matter; namely, that Marinelli did
not adequately assist the City in formulating a proper accommodation
that would allow him to return to work, that the verdict levied against
the City was "shockingly excessive," and that the District Court erred in
its calculation of attorneys' fees. Insofar as we hold that Marinelli has
failed to establish that he is disabled within the purview of the ADA, we
need not address these additional issues.

                               20