Andrew Morgan v. Allison Crane & Rigging LLC

                                           PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                       No. 23-1747
                      _____________

                   ANDREW MORGAN
                                             Appellant

                              v.

           ALLISON CRANE & RIGGING LLC,
             d/b/a Allison Crane & Rigging

                     _______________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                  (D.C. No. 4:21-cv-00533)
       District Judge: Honorable Matthew W. Brann
                     _______________

                   Argued: April 3, 2024

Before: RESTREPO, MATEY and MCKEE, Circuit Judges.

             (Opinion filed: September 4, 2024)


W. Charles Sipio [Argued]
Karpf Karpf & Cerutti
Eight Neshaminy Interplex
Suite 210
Feasterville-Trevose, PA 19053
          Counsel for Appellant

Paul S. Mazeski [Argued]
Buchanan Ingersoll & Rooney
Union Trust Building
501 Grant Street, Suite 200
Pittsburgh, PA 15219
          Counsel for Appellee

Georgina Yeomans [Argued]
Equal Employment Opportunity Commission
Office of General Counsel
131 M Street NE
Washington, DC 20507
           Counsel for Amicus

                       _______________

                   OPINION OF THE COURT
                       _______________


McKEE, Circuit Judge.

       Andrew Morgan appeals the District Court’s grant of
summary judgment in favor of his former employer, Allison
Crane & Rigging LLC. Morgan had sued alleging that
Allison Crane terminated his employment because of a lower
back injury that prevented Morgan from doing anything more
than “light duty” alternative work. He claimed disability-
based discrimination, retaliation, and failure to accommodate
in violation of the Americans with Disabilities Act (“ADA”)1
and the Pennsylvania Human Relations Act (“PHRA”)2
(Counts I and II), and wrongful discharge in violation of
Pennsylvania common law (Count III).

        We will vacate in part, reverse in part, and affirm in
part. We reverse because the District Court applied an
incorrect legal standard in assessing the sufficiency of the
evidence pertaining to Morgan’s back pain-based
discrimination claims, and we vacate because the District
Court failed entirely to consider Morgan’s statutory
retaliation and failure to accommodate claims. We write
precedentially to clarify that the ADA Amendments Act of

1
    

, et seq.
2
    43 P.S. §§ 951, et seq.
                                  2
2008 (“ADAAA”)3 expanded the scope of disability coverage
under the ADA. We also clarify that our decision in
Macfarlan v. Ivy Hill SNF, LLC4 applied a pre-ADAAA
standard to allegations that arose before the ADAAA was
enacted. Accordingly, that decision should not control
adjudications of claims that arose after the effective date of
the ADAAA.
I.     BACKGROUND5
A.
       In Fall 2019, Andrew Morgan was employed by
Allison Crane & Rigging LLC as a millwright laborer until
Allison Crane terminated his employment on November 18,
2020. During Morgan’s employment, he had several
supervisors, including Brian Bonislawski who was supervisor
of the Williamsport, Pennsylvania location, Robert Mundrick,
who was a project manager/supervisor, and Ryan Hastings,
who was Morgan’s foreman/supervisor.

         On September 29, 2020, while working at the
Williamsport location, Morgan injured his lower back.
Although he was in “severe pain,” Morgan completed his
shift.6 He informed at least one co-worker, as well as
Hastings (his supervisor), about his back injury. Hastings
told Morgan that he would “relay the message” to Mundrick.
Morgan continued working his regular shift through the
remainder of the week but informed his crew that he was still
in pain and considering chiropractic treatment.

       Several days later, on October 1, 2020, Morgan saw a
chiropractor. Morgan testified that the chiropractor
diagnosed him with a bulged or herniated disc in the lower
back and recommended that Morgan return twice weekly for
treatment to alleviate the lower back pain. Morgan’s back
became inflamed when he sat, walked, or turned left or right.
Morgan complied with the treatment plan by making twice-

3
  

 Stat. 3553 (2008).
4
  

 (3d Cir. 2012).
5
  The following facts are undisputed or otherwise stated in the
light most favorable to Morgan as the non-movant. See
Anderson v. Liberty Lobby, Inc., 

 (1986).
6
  JA 186.
                               3
weekly visits to his chiropractor, and the chiropractor further
advised Morgan to switch to “light duty” work.7

       On October 7, 2020, Morgan had a meeting with
several supervisors—including Bonislawski and Thomas
Ungard. Morgan again informed them of his back injury at
that meeting and he was told that he would be placed on light
duty. Bonislawski and Ungard cautioned Morgan that he
should not bother filing a workers’ compensation claim
because his injury was not sufficiently severe. Ultimately,
Morgan did not file a workers’ compensation claim, nor did
he make any immediate inquiry to his supervisors about doing
so. However, he did subsequently research opening a
workers’ compensation claim.

        On October 8, and again on October 22, 2020,
Morgan’s chiropractor wrote a note stating that Morgan
should be excused from “bending or lifting” items over
fifteen pounds through November 4, 2020.8 Then, on
November 5, 2020, the chiropractor further restricted Morgan
from bending or lifting items over thirty pounds for another
thirty days; a period which would have run through December
5. However, on November 25, 2020, Morgan’s chiropractor
released Morgan “to his full occupational duties without
restrictions.”9 In total, from October 8 until November 25,
2020, Morgan’s chiropractor placed him on bending and
lifting restrictions for forty-eight days. Morgan shared the
chiropractor’s notes with Bonislawski, and Morgan concedes
that Allison Crane did indeed place him on light duty
restrictions, until it terminated him.

       According to Allison Crane, Morgan’s actions during
one week in November led to his termination. On November
13, 2020, Bonislawski warned Morgan about not wearing the
appropriate protective equipment while working. Several
days later, Morgan was assigned to drive a truck to escort a
crane from a job site in Syracuse, New York. Morgan texted
the dispatcher that he could not perform the task because the

7
  JA 339.
8
  JA 386.
9
  JA 297.
                               4
timing conflicted with an important back appointment that he
did not want to miss, but he was willing to do another job that
did not conflict with the appointment.

       Morgan testified that, later that day, he was again
contacted by dispatch, and he told dispatch that he could not
do the job because he could not “sit for that long of a time”
without inflaming his back but that he could do “light duty”
work.10 According to Morgan, the dispatcher said “they
would be able to find somebody else.”11 Morgan claims that
he went to work in the yard on November 17, 2020.

       The next day, on November 18, 2020, Bonislawski
fired Morgan, purportedly because Morgan failed to “follow
the day off request process as well as other policies” when he
did not “show for work” on November 17.12 Prior to
Morgan’s termination, he continued to work full time, for the
same wages, and did not miss any workdays.
B.
       Morgan filed this action on March 23, 2021, and
thereafter amended his Complaint. As noted at the outset, the
District Court concluded that Morgan “ha[d] not established
the presence of an actual or perceived disability as required
by the ADA and PHRA.”13 The Court held that Morgan’s
alleged bulged or herniated disc injury could not qualify as an
actual disability for two reasons: (i) Morgan’s testimony that
a chiropractor diagnosed him with a bulged or herniated disc
was inadmissible hearsay that cannot be considered on
summary judgment, and (ii) Morgan failed to proffer
necessary medical evidence of the diagnosis. The Court
concluded that medical evidence was required because spinal
impairments are not within the comprehension of a lay jury.
The Court further held that it “need not consider whether a
bulged or herniated disk would qualify” for a “regarded as”
claim of disability because Morgan “failed to establish the
presence of a bulged or herniated disk” or that “Allison Crane

10
   JA 189–90.
11
   Id. at 190.
12
   JA 212.
13
   JA 14.
                               5
believed that Morgan suffered from a bulged or herniated
disk.”14

        The Court similarly rejected Morgan’s disability claim
based upon his back pain. Although medical evidence is not
required to establish back pain as an injury and Morgan had
evidence to establish that the pain impaired his ability to lift
and bend, the Court nonetheless determined that Morgan’s
back pain could not constitute an actual disability given our
holding in Macfarlan v. Ivy Hill SNF, LLC. Relying on
Macfarlan, the Court held that Morgan’s back pain did not
rise to the level of a regarded as disability because the pain
was both transitory and minor. The District Court reasoned
that the pain was transitory because Morgan was placed on
lifting restrictions for less than six months, and it was minor
because (i) he missed no work, (ii) his bending and lifting
restrictions were “only mildly limited,” (iii) he suffered no
other restrictions, and (iv) “no surgical intervention [was]
required.”15

        Finally, the District Court dismissed Morgan’s
common law wrongful discharge claim because he lacked
prima facie evidence that he had engaged in any protected
activity. The Court did not address or even mention
Morgan’s failure to accommodate or retaliation claims. This
appeal followed.
II.     Standard of Review16
       When reviewing a district court’s summary judgment
decision, the standard of review is plenary—“meaning we
review anew the District Court’s summary judgment




14
   JA 21 n.92.
15
   JA 21 (citation omitted).
16
   The District Court had jurisdiction pursuant to 

 and 2023 because Morgan’s Complaint set forth claims
under the ADA and PHRA. We have jurisdiction pursuant to

 as we are reviewing the District Court’s
summary judgment order dismissing the case.
                               6
decision[ ], applying the same standard it must apply.”17 All
evidence is viewed in the light most favorable to the non-
moving party and “all justifiable inferences are to be drawn in
his[/her] favor.”18 We grant summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”19 However, “‘[w]e deny summary judgment
if there is enough evidence for a jury to reasonably find’ for
the nonmoving party.”20
III. Discussion
A.
       The ADA and PHRA21 prohibit employers from
discriminating “against a qualified individual on the basis of

17
   Huber v. Simon’s Agency, Inc., 

 (3d Cir.
2023) (quoting Ellis v. Westinghouse Elec. Co., 

 (3d Cir. 2021)).
18
   Anderson, 

.
19
   Colwell v. Rite Aid Corp., 

 (3d Cir. 2010)
(quoting Fed. R. Civ. P. 56(c)(2)).
20
   Thomas v. Tice, 

 (3d Cir. 2020) (quoting
Minarsky v. Susquehanna Cnty, 

 (3d Cir.
2018)).
21
   We note that since the enactment of the ADAAA, some
district courts in this Circuit have determined that “the
disability prong of discrimination analysis under the PHRA
should be analyzed” under the pre-ADAAA standard
“because the Pennsylvania legislature has not enacted a
similar amendment to the PHRA.” Berkowitz v.
Oppenheimer Precision Prod., Inc., No. CIV.A. 13-4917,

, at *7 (E.D. Pa. Oct. 28, 2014). We
disagree with the district courts that have taken that position.
The PHRA is to be “construed consistently with other
relevant [f]ederal and [s]tate laws and regulations except
where the construction would operate in derogation of the
purposes of the [PHRA].” 

(b).
Furthermore, post-enactment of the ADAAA, Pennsylvania
courts have continued to interpret the PHRA co-extensively
with the ADA. See Jarmon v. Convent of the Sisters of St.
Joseph Villa, 

, *3 n.3 (Pa. Super. Ct. 2020)

                               7
disability.”22 To prove disability discrimination, plaintiffs
must demonstrate: (i) they have a disability within the
meaning of the ADA; (ii) they are “otherwise qualified to
perform the essential functions of the job, with or without
reasonable accommodations by the employer[;]” and (iii) they
have “suffered an otherwise adverse employment decision as
a result of discrimination.”23 Plaintiffs are disabled within the
meaning of the ADA if they: (1) have “a physical or mental
impairment that substantially limits one or more” of their
“major life activities”; (2) have “a record of such an
impairment”; or (3) are “regarded as having such an
impairment.”24
1.
       In 2008, Congress enacted the ADAAA as a response
to “Supreme Court cases, similar lower court decisions, and
the [Equal Employment Opportunity Commission’s
(“EEOC”)] regulations” which had narrowly interpreted key
provisions of the ADA.25 Prior to enactment of the ADAAA,


(“[T]he same legal standard that applies to the ADA applies
equally to disability discrimination claims under the PHRA.”
(quoting Colwell, 

 n.3)); Lazer Spot, Inc. v.
Pa. Hum. Rels. Comm’n, No. 459 C.D. 2017, 

, at *4 (Pa. Commw. Ct. Feb. 2, 2018) (holding that
the PHRA should be interpreted in conformity with the
ADAAA). Absent an act of the Pennsylvania legislature or
guidance from Pennsylvania courts that the ADAAA is
inconsistent with the PHRA, federal courts should continue to
interpret the PHRA in harmony with the ADA.
22
   

(a); see also 

 § 12111(8) (“qualified
individual” with a disability is “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”).
23
   Eshleman v. Patrick Indus., Inc., 

 (3d Cir.
2020) (quoting Taylor v. Phoenixville School Dist., 

 (3d Cir. 1999)).
24
   

(1).
25
   Israelitt v. Enter. Servs. LLC, 

 (4th Cir.
2023); see also 

 Stat. 3553(a)(4)-(7)
(explaining that Supreme Court holdings in Sutton v. United

                               8
in Toyota Motor Mfg., Ky., Inc. v. Williams, the Supreme
Court had held that an impairment must “prevent[] or
severely restrict[] the individual from doing activities that are
of central importance to most people’s daily lives” and be
“permanent or long term” to qualify as a disability.26
Congress rejected the Supreme Court’s permanency standard.
In enacting the ADAAA, Congress mandated that the
“definition of disability . . . shall be construed in favor of
broad coverage of individuals” and “to the maximum extent
permitted.”27 In response, the EEOC explained that even an
impairment that is expected to last less than six months can
constitute an actual disability “if it substantially limits the
ability of an individual to perform a major life activity as
compared to most people in the general population.”28

       Post enactment of the ADAAA, our sister Courts of
Appeals—including the Courts of Appeals for the First,
Second, Fourth, Fifth, and Ninth Circuits—have held, in
precedential opinions, that temporary impairments can qualify
as an actual disability under the ADA.29 We have previously


Air Lines, Inc., 

 (1999), and Toyota Motor Mfg.
v. Williams, 

 (2002), substantially narrowed the
scope of protection intended under the ADA).
26
   

.
27
   

(4)(A).
28
   

(j)(1)(ii); see 

 § 1630.2(j)(1)(ix) (“The
effects of an impairment lasting or expected to last fewer than
six months can be substantially limiting within the meaning
of this section.”).
29
   See Mueck v. La Grange Acquisitions, L.P., 

 (5th Cir. 2023), as revised (Aug. 4, 2023) (“[F]ollowing
the ADAAA’s passage, an impairment need not be
‘permanent or long-term’ to qualify as a disability.”); Shields
v. Credit One Bank, N.A., 

, 1222–26 (9th Cir.
2022) (holding that the district court erred in relying on case
law and regulations that failed to account for the ADAAA to
hold that an impairment is not substantially limiting unless it
involves permanent or long-term effects); Hamilton v.
Westchester Cnty., 

, 92–94 (2d Cir. 2021)
(explaining that the ADAAA overrode previous case law

                                9
reached the same conclusion, albeit in a non-precedential
opinion.30 Moreover, to its credit, Allison Crane now agrees
that, given the 2008 amendments, “an impairment lasting
fewer than six months can constitute a disability[.]”31

        Nevertheless, despite the emerging body of case law
across the federal judiciary, current EEOC regulations, and
the parties’ agreement that a temporary impairment can
constitute an actual disability for ADA purposes, the District
Court held in Allison Crane’s favor on the issue. In doing so,
it explained that Morgan’s back pain could not constitute an
actual disability due to an “insurmountable hurdle.”32 That
hurdle was our decision in Macfarlan. There, we held that
“[a] temporary non-chronic impairment of short duration is
not a disability covered by the [ADA and PHRA].”33
However, as Morgan and the EEOC34 correctly point out,
although Macfarlan was a 2012 case, it actually applied the

indicating that temporary impairments could not qualify as
disabilities under the ADA); Mancini v. City of Providence by
& through Lombardi, 

 (1st Cir. 2018) (“[I]t is
clear that injuries can comprise impairments, even when their
impact is only temporary.” (citations omitted)); Summers v.
Altarum Inst., Corp., 

, 331–32 (4th Cir. 2014)
(holding that EEOC’s interpretation of the ADAAA,
regulating that temporary impairments can constitute
disabilities, is a reasonable construction of the statute); see
also Skerce v. Torgeson Elec. Co., 

, 362
(10th Cir. 2021) (holding, in an unpublished opinion, that a
district court erred in concluding that an elbow injury could
not constitute an actual disability under the ADA because it
was a temporary condition lasting less than six months).
30
   Matthews v. Pa. Dep’t of Corr., 

 (3d Cir.
2015) (reversing a district court decision where plaintiff’s
ADA disability claim was dismissed in part because the
impairment lasted only a few months).
31
   Appellee Br. 24 (emphasis omitted).
32
   JA 18.
33
   Macfarlan, 

.
34
   The EEOC filed an Amicus brief in support of Morgan’s
position that a temporary ailment can qualify as a disability
under the ADA.
                              10
pre-ADAAA standard because the relevant impairment and
alleged adverse action took place prior to the effective date of
the ADAAA.35 Consequently, Macfarlan’s holding regarding
temporary impairments is simply not applicable here. The
conduct at issue here occurred in 2020, after the ADAAA
became effective. Accordingly, the temporary nature of an
injury is not dispositive.

        Rather, the analysis of Morgan’s general back pain
under the ADA must focus on whether his injury
“substantially limit[ed]” his ability “to perform a major life
activity as compared to most people in the general
population.”36 On this record, it is clear that Morgan’s
allegations of back pain establish such a limitation.

        As we noted earlier, Morgan testified that “it hurt to
sit, hurt to walk,” and it hurt to “turn[] left or right.”37 From
October 8 until November 5, 2020, Morgan’s chiropractor
advised him against lifting anything over fifteen pounds, and
from bending. From November 5 until November 25,
Morgan was still advised to not bend and was further
restricted from lifting more than thirty pounds. Morgan’s
prima facie showing requires no more. Given that lifting and
bending constitute major life activities,38 a reasonable jury
could find that Morgan’s back pain, though temporary,
nonetheless constituted an actual disability because it
substantially limited his ability to perform major life activities
“as compared to most people in the general population.”39
Allison Crane’s arguments to the contrary are unavailing.

35
   See 

 (identifying that Macfarlan was terminated in
2008).
36
   

(1)(A); 

(j)(1)(ii).
37
   JA 187.
38
   See 

(i)(1)(i) (defining major life
activities to include “walking,” “sitting,” “lifting, [and]
bending”).
39
   

 § 1630.2(j)(1)(ii); see id. (“impairment need not
prevent, or significantly or severely restrict” to be
substantially limiting); id. § 1630.2(j)(1)(i), (iii) (substantial
limitation question “should not demand extensive analysis”

                               11
        Allison Crane’s arguments boil down to four points: (i)
the ADAAA does not foreclose considering duration of injury
in the “substantially limiting” analysis; (ii) the District
Court’s conclusion that temporary impairments cannot
qualify as a disability is supported by decisions of other
district courts in this Circuit; (iii) ruling in Morgan’s favor
will render all short-term impairments as disabilities within
the meaning of the ADA; and (iv) there are reasons beyond
duration, that the District Court did not identify, that also
support its ruling.

       To Allison Crane’s first point, ruling in Morgan’s
favor would not foreclose the District Court from considering
the ‘duration’ of an injury when determining whether it is
substantially limiting. However, the ADAAA makes clear
that duration of impairment is not dispositive of whether
someone is disabled. Second, the fact that the District
Court’s contrary conclusion may have been in accord with
conclusions of other district courts in this Circuit40 or one of
our own unpublished opinions41 only demonstrates the need

because the term “substantially limits” should be “construed
broadly in favor of expansive coverage”).
40
   See e.g., Brearey v. Brennan, No. 17-CV-2108, 

, at *6 (E.D. Pa. Jan. 4, 2019) (“Because the
undisputed evidence establishes that Plaintiff’s ankle injury
involved ‘several months of limitation, without long-term or
permanent effect’ Plaintiff has failed to establish an actual
disability under the Rehabilitation Act.” (quoting Macfarlan,
675 F.3d at 274–75); Sampson v. Methacton Sch. Dist., 

 (E.D. Pa. 2015).
41
   In Bangura v. Pennsylvania, a not-precedential opinion, we
explained that evidence of treatment for an anxiety attack
“cannot establish anything more than a ‘temporary non-
chronic impairment of short duration,’ which is insufficient to
establish a disability.” 

, 145 n.3 (3d Cir.
2019) (quoting Macfarlan, 

 (quotation marks
and citation omitted)). However, “[n]ot precedential opinions
are, by definition, not binding on this Court, and our internal
operating procedures do not allow us to cite and rely upon
those opinions.” Chehazeh v. Att’y Gen., 

, 127
n.12 (3d Cir. 2012) (citing Internal Operating Procedures 5.7

                               12
to clarify the impact of the ADAAA. Third, despite Allison
Crane’s protestations to the contrary, all short-term
impairments do not necessarily rise to the level of disabilities
under the ADA. Plaintiffs still must demonstrate that the
resulting impairment substantially limits major life activities.
Finally, none of Allison Crane’s asserted alternative grounds
warrant summary judgment in its favor.
2.
        The District Court’s analysis of whether Morgan’s
back pain could have been regarded as a disability
compounded its earlier errors.

        A “regarded-as” claim requires proof that the employer
took a prohibited action “because of an actual or perceived
physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.”42 The
ADA, as amended, specifically precludes relief for actual or
regarded as claims that are both objectively “transitory and
minor.”43 An impairment lasting fewer than six months is
transitory,44 but may not be minor, and therefore may still be
regarded as a disability.45 Minor is not defined by statute, but
“[c]overage under the ‘regarded as’ prong . . . should not be
difficult to establish.”46 The determination of whether an
impairment is minor must be made on a “case-by-case basis,”
and the factors to be considered depend on the particular

(3d Cir. 2010)). For that same reason, district courts in this
Circuit should be cautious when looking to not precedential
opinions for statements of law.
42
   

(3)(A).
43
   

 § 12102(3)(B); 29 C.F.R. pt. 1630, app. § 1630.2(l)
(“The relevant inquiry is whether the actual or perceived
impairment on which the employer’s action was based is
objectively ‘transitory and minor,’ not whether the employer
claims it subjectively believed the impairment was transitory
and minor.”).
44
   

(3)(B) (“A transitory impairment is an
impairment with an actual or expected duration of 6 months
or less.”).
45
   Eshleman, 961 F.3d at 247–48 (only impairments that are
both transitory and minor are excluded from coverage).
46
   29 C.F.R. pt. 1630, app. § 1630.2(l).
                               13
impairment.47 At bottom, “the requirements for a prima facie
‘regarded as’ claim are less demanding” than those for an
actual disability claim.48

        The District Court applied the correct legal standard
for a regarded as claim, but it reached the wrong result.
Because Morgan’s back pain was transitory,49 the only issue
the Court had to determine was whether his back pain was
also minor. The District Court denied relief because it
determined that the pain was minor. However as the EEOC
argues, it would indeed be paradoxical to conclude that
Morgan’s back pain which could limit major life activities—
bending, lifting, walking, sitting—is nevertheless “minor,”
given that the substantially limits requirement is a higher
burden to meet.50 As we explained in Eshleman, the not
minor requirement is only intended to exclude impairments

47
   Eshleman, 961 F.3d at 249–250 (considering factors such
as “symptoms and severity of the impairment, the type of
treatment required, the risk involved, and whether any kind of
surgical intervention is anticipated or necessary—as well as
the nature and scope of any post-operative care” in the
context of a lung surgery impairment).
48
   Mancini, 

.
49
   Morgan contends that his back pain was not transitory
because it had an “indefinite time frame for resolution,” and
because he testified that “he was concerned about future flare-
ups.” Appellant Br. 32. But his argument misapplies the
facts to the law. Morgan testifies that after forty-eight days
he was no longer in need of treatment or light duty
restrictions, and his chiropractor only placed him on
restrictions for fifteen- and thirty-day increments. Thus, on
this record, the “actual or expected duration” of Morgan’s
disability never approached the 6-month threshold necessary
for it to be considered non-transitory. 

(3)(B).
50
   See Mancini, 909 F.3d at 45–46 (explaining that “[i]t is not
necessary” for a plaintiff meet the higher bar of showing “that
the impairment limits or is perceived to limit a major life
activity” when making a regarded as claim. (first citing 

(3)(A) and then citing Mercado v. Puerto
Rico, 

 (1st Cir. 2016))).
                              14
“at the lowest end of the spectrum of severity,” such as
“common ailments like the cold or flu.”51 Back pain which
causes difficulty bending, lifting, walking, and turning left or
right, is undoubtedly more than minor pain.
        Accordingly, we will reverse the District Court’s
dismissal of Morgan’s claim that he was unlawfully
discriminated against due to his general back pain.
3.
        Morgan also argues that the District Court erred when
it dismissed his claim that he was unlawfully discriminated
against because of an actual herniated or bulged disc
disability.52 The District Court rejected this claim because (i)
Morgan’s only evidence of a herniated or bulged disc
diagnosis was his own testimony that his chiropractor had so
diagnosed him, and that constituted inadmissible hearsay; and
(ii) medical evidence is required to prove that he had a bulged
or herniated disc. Because we agree that Morgan needed
medical evidence to substantiate that he suffered from a
bulged or herniated disc, we will affirm the District Court’s
order insofar as it dismissed this claim.

       Medical testimony is not always required to establish a
disability.53 “[T]he 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.”54 This
assessment is also to “be made on a case-by-case basis.”55
Generally, ailments that “are the least technical in nature and
are the most amenable to comprehension by a lay jury” need

51
   Eshleman, 

 (quoting H.R. Rep. No. 110–
730 pt. 2, at 18 (2008)).
52
   Morgan does not appeal the District Court’s ruling that the
evidence did not support a regarded as claim based on a
herniated or bulged disc.
53
   Marinelli v. City of Erie, Pa., 

 (3d Cir.
2000) (explaining that “failure to present medical evidence of
his impairment, in and of itself, does not warrant judgment as
a matter of law”).
54
   Id. at 630.
55
   Tesone v. Empire Mktg. Strategies, 

 (10th
Cir. 2019) (quoting Mancini, 

).
                              15
not be established by medical evidence.56 We have
previously explained that arm and neck pain are among those
ailments which do not require medical evidence.57 The
District Court correctly concluded that a herniated disk is a
spinal injury that is “not within the comprehension of a jury
that does not possess a command of medical or otherwise
scientific knowledge.”58 Morgan’s arguments to the contrary
are unpersuasive.59 Accordingly we will affirm the District
Court’s dismissal of that claim.
B.
       We are left with the District Court’s dismissal of
Morgan’s retaliation and failure to accommodate claims
under the ADA and PHRA and his wrongful termination
claim under Pennsylvania common law.

       The District Court failed to offer any justification for
dismissing Morgan’s retaliation and failure to accommodate
claims. Ironically, Allison Crane did not even move for
dismissal of the retaliation claims, and the District Court did
not purport to dismiss the retaliation claims sua sponte
56
   Marinelli, 

.
57
   

58
   JA 16–17 (cleaned up) (quoting Marinelli, 

).
59
   The primary cases that Morgan relies upon in support of his
contrary position are non-binding on this Court as they are all
unreported district court cases, and some are from outside of
this Circuit. See Appellant Br. 20–22 (directing this Court’s
attention to Nagle v. Comprehensive Women’s Health Servs.,
P.C., 

 (M.D. Pa. Jan. 19, 2018);
Pallatto v. Westmorland Cty. Children’s Bureau, 

 (W.D. Pa. Mar. 3, 2014); Malzberg v.
N.Y. Univ., 

 (S.D.N.Y. Mar. 25,
2022)). To the extent that he relies upon the Court of Appeals
for the Seventh Circuit’s decision in EEOC v. Autozone, Inc.,

 (7th Cir. 2010), that case is in applicable here.
In Autozone, the Seventh Circuit held that no medical
evidence was necessary for plaintiff to demonstrate that his
ailment substantially limited him. 

. But the
necessity of medical evidence to demonstrate an impairment’s
substantially limiting effect is not at issue in this case.
                               16
pursuant to Federal Rule of Civil Procedure 56(f)(2).60 We
are therefore at a loss to understand why the court dismissed
those claims. Accordingly, we will vacate the order
dismissing the retaliation and failure to accommodate claims
and remand so that those claims can be addressed.61 On
remand the District Court should also consider whether
Allison Crane has failed to preserve its arguments against the
retaliation claims.62

       Finally, we will affirm dismissal of Morgan’s
wrongful termination claim under Pennsylvania common law
because there is no evidence that he filed for or suggested to
anyone at Allison Crane that he intended to file for workers’
compensation.63 We note, however, that in an appropriate
case, evidence that an employer took sufficient steps to
dissuade an employee from filing for workers’ compensation




60
   See Fed. R. Civ. P. 56(f)(2) (“After giving notice and a
reasonable time to respond, the court may . . . grant the
[summary judgment] motion on grounds not raised by a
party[.]”).
61
   See Singleton v. Wulff, 

 (1976) (“It is the
general rule, of course, that a federal appellate court does not
consider an issue not passed upon below.”).
62
   See In re Ins. Brokerage Antitrust Litig., 

(3d Cir. 2009) (recognizing that the relevant question as to
argument preservation is whether a party “presented the
argument with sufficient specificity to alert the district court”
(quoting Kennan v. City of Phila., 

 (3d Cir.
1992))).
63
   See Shick v. Shirey, 

 (1998) (holding that
“a cause of action exists under Pennsylvania law for wrongful
discharge of an employee who files a claim for workers’
compensation benefits”); Owens v. Lehigh Valley Hosp., 

 (Pa. Commw. Ct. 2014) (clarifying that “a
cause of action exists under Pennsylvania law for wrongful
discharge of an employee who files a claim for workers’
compensation benefits with an employer but has not filed a
claim petition with the Bureau”).
                               17
may support relief. Given this record, we leave for another
day the determination of the nature of any such relief.
IV.
        For the reasons stated above, we will vacate the
District Court’s order in part, reverse it in part, affirm it in
part, and remand for further proceedings consistent with this
opinion.




                               18