Joseph Provenzano v. Rls Logistics

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1658
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JOSEPH PROVENZANO,
Appellant
v.
RLS LOGISTICS; RLS COLD STORAGE OF PITTSTON PA INC.;
BILL JOZEFOWICZ; LORI COGIT; ANTHONY LEO
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. No. 3-18-cv-00997)
District Judge: Honorable Malachy E. Mannion
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Submitted Under Third Circuit L.A.R. 34.1(a)
May 6, 2022
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Before: CHAGARES, Chief Judge, GREENAWAY, JR., and PORTER, Circuit Judges.
(Opinion Filed: September 12, 2022)
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OPINION*
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GREENAWAY, JR., Circuit Judge.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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In this appeal, Appellant Joseph Provenzano seeks relief against his employer and
its officers or employees, RLS Logistics, RLS Cold Storage of Pittston, PA, Inc., Bill
Jozefowicz, Lori Cogit, and Anthony Leo (collectively “RLS”) for discriminating against
him because of his disabilities resulting from cancer. Because Provenzano’s medical
challenges unfortunately left him unable to fulfill the responsibilities of Senior
Supervisor, even with reasonable accommodation, we will affirm the District Court’s
entry of summary judgment in RLS’s favor.
I. BACKGROUND
RLS provides cold storage and third-party logistics services for its clients, storing
cold products in refrigerators and freezers on its three-building campus. Provenzano was
hired by RLS at its Pittston, Pennsylvania location as a warehouse associate in 2011. In
February 2016, RLS promoted Provenzano to Supervisor. As a Supervisor, Provenzano’s
job duties included working with staff to get orders loaded onto trucks, walking through
the freezers and warehouses to check on the staff’s work, overseeing office staff, and
attending meetings. In May 2017, RLS promoted Provenzano again to Senior
Supervisor, wherein Provenzano maintained his prior duties but was required to attend
more regular meetings, including a 35–45-minute daily meeting and weekly or bi-weekly
manager meetings.
Prior to Provenzano’s promotion to Senior Supervisor, RLS considered him for the
position of Warehouse Manager, which RLS concluded he was not qualified to perform.
In September 2017, Provenzano was diagnosed with colon cancer. Through the fall of

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2017, Provenzano attempted to maintain his regular duties but, owing to his radiation
treatment, needed to miss work and have another RLS employee take over some tasks.
Provenzano spoke with Cogit, who raised the possibility of intermittent Family Medical
Leave Act (FMLA) leave during his treatment and presented him with FMLA paperwork.
Provenzano preferred to, and ultimately did, use his entire FMLA leave after a surgical
procedure in November 2017.
On November 9, 2017, before his eventual surgery, Provenzano emailed
Jozefowicz, Cogit, and Leo, claiming he felt he had been demoted and needed clarity on
his position and compensation. Jozefowicz assured Provenzano he had not been demoted
and that his duties had been temporarily reassigned to other employees. His pay and title
remained unchanged. The next week, Provenzano met with Leo and agreed to switch his
pay status from salaried to hourly. That week, Provenzano worked 46.5 hours and was
paid more than his previous weekly salary.
Beginning November 24, 2017, Provenzano took 12 weeks of FMLA leave. His
surgeon advised that Provenzano was unable to work as he would be totally incapacitated
for an undetermined period. Provenzano attempted to return to work on February 16,
2018. Provenzano’s oncologist advised that, if Provenzano were to return to work, he
would be restricted to a maximum of 50 hours per week and should not have extended
exposure to cold climates, which Provenzano said meant more than one or two hours per
daily shift. Provenzano advised RLS of these restrictions on February 14, 2018. Cogit
responded that it may not be possible to return Provenzano to his prior position or an
equivalent position given the nature of work at a cold storage facility. Cogit promised,

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however, to try and find a way to accommodate Provenzano. RLS tried to employ
Provenzano in an inventory management role wherein he kept his title as Senior
Supervisor and his previous weekly salary. In that role, Provenzano would be required to
manage inventory for a particular customer within one building of RLS’s campus. But
Provenzano, expecting to return to his normal job duties, walked off the job the day of his
return, February 16, 2018.
Provenzano subsequently filed suit on May 10, 2018. In the operative complaint,
Provenzano sought relief: (1) under the FMLA; (2) for intentional infliction of emotional
distress (IIED); (3) under the Americans with Disabilities Act (ADA); and (4) under the
Pennsylvania Human Relations Act (PHRA). RLS moved for summary judgment, and in
connection with his opposition, Provenzano supplied a sworn declaration to support his
counterstatement of facts. The District Court granted summary judgment for RLS on all
of Provenzano’s federal claims and the PHRA claims. It declined to exercise
supplemental jurisdiction over the IIED claim. In granting summary judgment, the
District Court explained that it declined to consider Provenzano’s declaration because it
constituted a “sham affidavit.”
II. JURISDICTION AND STANDARD OF REVIEW
Provenzano sought relief under the laws of the United States. The District Court
had jurisdiction pursuant to 28 U.S.C. § 1331. Provenzano also sought relief under the
laws of Pennsylvania for claims forming the same case or controversy as his federal
claims. The District Court also had discretion to exercise jurisdiction pursuant to

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28 U.S.C. § 1367. Provenzano timely appealed from the District Court’s entry of
summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the grant of summary judgment de novo. Daubert v. NRA Grp., LLC,
861 F.3d 382, 388 (3d Cir. 2017). Summary judgment is warranted “if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We view the facts in the light most
favorable to the nonmoving party, drawing all inferences in its favor.” Daubert, 861 F.3d
at 388-89. “[W]e review a district court’s decision to exclude materials under the sham-
affidavit doctrine for abuse of discretion.” Id. at 389.
III. DISCUSSION
Sham Affidavit
Provenzano argues that the District Court’s refusal to credit his declaration was
erroneous. The District Court is empowered to disregard a nonmovant’s affidavit if it
“contradicts earlier deposition testimony without a satisfactory or plausible explanation.”
Id. at 391. Where the now contradictory affidavit is unsupported by the record, directly
contrary to other testimony, or is clearly offered solely to defeat summary judgment, we
will not find an abuse of discretion. Id. at 392.
In short, the District Court determined Provenzano’s attempt to create a genuine
dispute as to the amount of time spent in freezers versus at a desk in his role as Senior
Supervisor before his diagnosis contradicted both his prior testimony and the rest of the
record. Provenzano testified that he did not work primarily at a desk and that he was
required to be in a freezer for more than an hour or two per day, beyond the amount of

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time Provenzano said his physician recommended he be exposed to freezing
temperatures. The District Court also correctly observed that Provenzano’s declaration
attempts to explain things he had the opportunity to explain in his deposition.
Provenzano did not attempt to explain these inconsistencies, thus, the District Court did
not abuse its discretion in ruling on summary judgment without considering
Provenzano’s declaration.
With that in mind, we turn to the merits at summary judgment.
ADA, FMLA, and PHRA Claims
To succeed on a claim of disability discrimination under the ADA, a plaintiff must
demonstrate that he or she was: (1) disabled; (2) subject to an adverse employment
action; (3) qualified for the position; and (4) the adverse employment action was
undertaken because of the disability. Fowler v. AT & T, Inc., 19 F.4th 292, 299 (3d Cir.
2021).1 Here, the District Court concluded that Provenzano’s ADA and PHRA claims
failed because no genuine dispute existed as to his qualification for the role of Senior
Supervisor. We agree. Given the understandable medical restrictions imposed upon
Provenzano, he simply could not perform the essential function of spending more than
one or two hours a day in freezing temperatures. Nor has Provenzano pointed to any
reasonable accommodations that could have permitted him to perform the essential
functions of his job.
1 Our analysis under the PHRA is the same as under the ADA. See Capps v. Mondelez
Global, LLC, 847 F.3d 144, 150 n.1 (3d Cir. 2017) (citing Kelly v. Drexel Univ., 94 F.3d
102, 105 (3d Cir. 1996)).

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To succeed on an FMLA retaliation claim, a plaintiff must demonstrate that he or
she: (1) invoked the right to FMLA leave; (2) suffered an adverse employment action;
and (3) the adverse action was caused by the invocation of FMLA rights.2 Lichtenstein v.
Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012). The District Court
concluded that Provenzano had not demonstrated that he had suffered any adverse
employment action because he received all of his FMLA benefits and returned to RLS
with his same title and compensation. Again, we agree. While Provenzano was told his
responsibilities would change upon his return, because his recovery did not permit him to
return to his old duties, we cannot conclude that RLS’s attempted accommodation
constituted an adverse employment action.
IV. CONCLUSION
We will affirm the District Court’s entry of summary judgment in favor of RLS.
2 We read Provenzano’s opening brief to only challenge the District Court’s resolution of
his FMLA retaliation claim. See Opening Br. 39-41. Accordingly, we do not analyze
other theories of liability implicating the FMLA.

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