Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-16-2003

Sizemore v. Consolidated Rail
Precedential or Non-Precedential: Non-Precedential

Docket 02-1182




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Recommended Citation
"Sizemore v. Consolidated Rail" (2003). 2003 Decisions. Paper 878.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/878


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                                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                            No. 02-1182


                          HERMAN SIZEMORE,
                                        Appellant

                                 v.

                  CONSOLIDATED RAIL CORPORATION


          Appeal from the United States District Court
            for the Western District of Pennsylvania
                  (D.C. Civil No. 00-cv-01025)
      District Court Judge: Honorable Robert J. Cindrich


                     Argued December 17, 2002
    Before:   SLOVITER, RENDELL and GREENBERG, Circuit Judges

                     (Filed January 16, 2003)


                                      Gregory G. Paul, Esq. [ARGUED]
                                      Peirce, Raimond & Coulter
                                      707 Grant Street
                                      2500 Gulf Tower
                                      Pittsburgh, PA 15219
                                          Counsel for Appellant

                                      Thomas H. May, Esq.   [ARGUED]
                                      Dickie, McCamey & Chilcote
                                      Two PPG Place
                                      Suite 400
                                      Pittsburgh, PA 15222-5402
                                          Counsel for Appellee


                       OPINION OF THE COURT


RENDELL, Circuit Judge.

     Herman Sizemore appeals from a summary judgment order entered in the District
Court on January 3, 2002, dismissing his claim of disability discrimination against his
former employer Consolidated Rail Corporation. We will affirm.
     For years, Herman Sizemore was employed by Consolidated Rail Corporation
("Conrail") as a "yardmaster," a job essentially requiring him to manage the day-to-day
operations of a train yard. In addition to performing his regular duties, Sizemore also
frequently served as the acting "trainmaster"   a position of substantially higher
responsibility   during periods in which the actual trainmaster was on leave. Between
1992 and 1998, Sizemore actively sought a permanent position as a Conrail trainmaster,
applying through Conrail’s voluntary internal placement system for approximately fifty
vacant trainmaster positions throughout Conrail’s network. During that period, Sizemore
was interviewed for only two of those positions, and was never hired. In 1999, Sizemore
accepted a trainmaster position offered to him by Conrail’s successor, Norfolk Southern,
and he continues to hold that position today.
     Sizemore brought suit against Conrail under the Americans with Disabilities Act
of 1990, as amended, 42 U.S.C. 12101 et. seq. ("ADA"), and the Rehabilitation Act of
1973, 29 U.S.C. 701 et seq., claiming that Conrail discriminated against him because of
his hearing condition. Sizemore suffers from a hearing impairment that is essentially
corrected by his continual use of visible hearing aids in both ears. Although Sizemore’s
condition is not actually disabling given his use of corrective aids, Sizemore alleged that
Conrail refused to hire him for vacant trainmaster positions because it regarded him as
disabled under 42 U.S.C. 12102(2). In early 2002, the District Court granted Conrail’s
motion for summary judgment, holding that Sizemore had failed to come forth with
sufficient evidence that Conrail regarded him as disabled with regard to the major life
activity of working. This timely appeal followed.
     The District Court had jurisdiction under 28 U.S.C. 1331 and 1343, and we
have jurisdiction pursuant to 28 U.S.C. 1291. Our review of the District Court’s grant
of summary judgment is plenary, and we examine the record using the same standard as
the District Court, considering whether the plaintiff has established a genuine issue of
material fact. See, e.g., Witkowski v. Welch, 

, 198 (3d Cir. 1999).
     After reviewing the record and hearing oral argument, we are convinced that
Conrail was entitled to judgment as a matter of law. In order to establish a prima facie
case under the ADA, Sizemore must be able to show 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 Medical Center, 

, 142 (3d Cir. 1998) (en banc);
see also Gaul v. Lucent Techs. Inc., 

, 580 (3d Cir. 1998). Yet Sizemore has
failed to produce any evidence indicating that Conrail’s employment decisions were made
as a result of discrimination based on his perceived disability. Sizemore’s reliance on
certain comments made about him by other Conrail employees is unconvincing; the
comments in question were few and limited in nature, and were made by non-supervisory
employees who had no real involvement in Conrail’s employment decisions. Further,
there is no evidence in the record that the trainmaster position is any different    for
hearing purposes   than the yardmaster position Sizemore actually held at Conrail. In
sum, there are simply no established facts that could possibly raise an inference of a
causal link between Sizemore’s hearing condition, or Conrail’s perception of it, and the
adverse employment decisions. Summary judgment in favor of Conrail was therefore
plainly warranted.
     We do agree with Sizemore, however, that the District Court appears to have based
its ruling on an incorrect reading of the Supreme Court’s decision in Sutton v. United Air
Lines, Inc., 

(1999). The District Court found that Sizemore’s claim was
legally insufficient because he had provided no evidence that Conrail regarded him as
disabled with regard to a "broad class of jobs," as required by Sutton. 

Yet
Sutton involved a plaintiff claiming that the employer regarded him as disabled with
regard to the major life activity of working, 

and it is that type of claim that
requires evidence about a class of positions. 

("When the major life activity
under consideration is that of working, the statutory phrase ’substantially limits’ requires,
at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs."
(emphasis added)). Sutton did not argue, as he could have, that the employer regarded
him as disabled with regard to his sight. 

Here, in contrast, Sizemore has not
made a "working" claim, but has instead framed his complaint as being that Conrail
regarded him as disabled with regard to the major life activity of hearing, and nobody has
disputed that characterization of his claim. As there was no authority for transposing
Sizemore’s claim to one involving the wholly separate major life activity of working, the
basis for the District Court’s decision to grant summary judgment in Conrail’s favor was
defective.
     Nonetheless, because Sizemore has failed to produce evidence sufficient to
establish his prima facie case, the order of the District Court will be AFFIRMED.
________________________
TO THE CLERK OF COURT:
     Please file the foregoing opinion.
/s/ Majorie O. Rendell
Circuit Judge