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In his eight-page opinion in Poyner v. Good Shepherd Rehab, U.S. District Judge Bruce W. Kauffman of the Eastern District of Pennsylvania dismissed claims under the ADA and the Age Discrimination in Employment Act brought by a woman who said that after she took short-term disability leave, she was told she would have to re-apply for her job if she wanted to return. “Because plaintiff has produced no evidence other than defendant’s knowledge of her disability leave, she has failed to establish that defendant regarded her as having a disability,” Kauffman wrote. Attorneys William Lee, Robert Pandaleon and Richard J. Orloski of Allentown, Pa.’s Orloski Hinga Pandaleon & Orloski filed the suit on behalf of Linda Poyner, a licensed practical nurse, who began working for the Muhlenberg Rehabilitation Center in 1991. In 1999, the suit says, Poyner suffered a work-related injury that forced her to go out on short-term disability for six months. During the leave, Poyner underwent three surgeries for carpal tunnel syndrome, notifying her employer each time. During her absence, the rehab center’s owner, Lehigh Valley Hospital, had transferred Debra Solt, another LPN, from a “floater” position to cover Poyner’s regular shifts. In August 1999, Good Shepherd Rehab purchased the facility and all of the workers were simply told to fill out paperwork, the suit says. No job interviews were conducted and the employees continued in their previous positions. Poyner, too, filled out the paperwork to continue her disability benefits. But, the suit says that when Poyner contacted Good Shepherd’s personnel department to inform them that her doctor had cleared her to return to work, she was told that she would have to re-apply for the position. The suit says Poyner refused to re-apply and never returned to work. Instead, she filed suit under the ADA and the ADEA, alleging that Good Shepherd’s requirement that she re-apply for her job after disability leave was a pretext for age and disability discrimination. But Kauffman found that both claims were fatally flawed. In her age discrimination claim, Kauffman said, Poyner “ignores the fact that she was absent on disability leave and argues only that she was replaced by Solt, a woman nine-and-a-half years younger than she.” Kauffman found that “age could not have been a motivating factor in plaintiff’s replacement, however, since Solt was transferred from a floater position to plaintiff’s position only after plaintiff began a disability leave.” As a result, Kauffman concluded that “Solt’s replacement of plaintiff was due to necessity, not age.” Turning to the ADA claim, Kauffman found that Poyner failed to meet the first prong of her prima facie case since she could not even prove that she was “regarded as disabled.” Poyner’s lawyers argued that since Good Shepherd required Poyner to re-apply for her job when her disability leave was over, it must have perceived her as substantially limited in her ability to work. But Kauffman found that Poyner’s evidence was not enough to prove that point since she relied entirely on the fact that Good Shepherd knew of her disability leave and her three surgeries. In Kelly v. Drexel University, Kauffman said, the 3rd U.S. Circuit Court of Appeals instructed that “the mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that the perception caused the adverse employment action.” Poyner’s case, he said, failed for the same reason. In a footnote, Kauffman said that even if Poyner had shown that Good Shepherd regarded her as unable to perform the job of a LPN, her claim would still fail because she couldn’t prove that she was regarded as unable to perform a broad class of jobs. And in another footnote, Kauffman said that even if Poyner had satisfied the first two prongs of the prima facie case, she might have been tripped up on the third and final prong since it was unclear whether she had truly suffered any “adverse employment action.” Kauffman never squarely addressed the question, and Good Shepherd’s lawyers had argued that requiring Poyner to re-apply for her job could not be construed as a constructive discharge.

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