In this case, in February, 1993, the plaintiff hired a Washington, D.C., lawyer for representation and advice as to his legal rights. On March 8, 1993, he sent a box containing documents he believed to be pertinent to a discrimination claim to his lawyer. Members of the firm were aware of the box and of the nature of its contents. Based on these factors, I conclude that the plaintiff has met the first element of his prima facie case by showing that he was engaged in protected activity.
The defendants next contend that the plaintiff has not met his evidentiary burden with respect to whether the loss of his job was causally linked to the protected activity. In a mixed motives case, the plaintiff meets his burden by showing "direct evidence that an illegitimate criterion was a substantial factor in the decision" to fire him. Price Waterhouse v. Hopkins, 490 U.S. 228, 276, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (O'Connor, J. concurring).
At a bare minimum, the plaintiff must show conduct or statements made by a decisionmaker that directly reflects the discriminatory attitude. Griffiths, 988 F.2d at 470. Stray remarks made in the workplace by non-decisionmakers, or statements by decisionmakers unrelated to the decisional process itself, do not shift the burden. Price Waterhouse, 490 U.S. at 276 (O'Connor, J. concurring). Neither do temporally remote comments made by decisionmakers which have nothing to do with the plaintiff's job performance. Hook v. Ernst-Young, 28 F.3d 366, 1994 U.S. App. LEXIS 16160, at*29 (3rd Cir. 1994).
Even judging by this stringent standard, I find that there is sufficient direct evidence of a causal connection between the protected activity and plaintiff's loss of employment to raise a genuine issue of material fact. One of the principal shareholders in the firm was aware as early as December, 1992, and perhaps earlier, that the plaintiff was trying to build a case against the firm. Harold Kohn Dep. at 25, Defs.' Ex. 2. The firm administrator took the plaintiff aside on January 15, 1993, and told him that she "had heard he may see a lawyer or sue the firm, that he should just leave and not make trouble." Doe Dep. at 1155, Pl.'s Ex. 1. She warned him that if he sued, Harold Kohn and Dianne Nast would blackball him so that he never worked again in Philadelphia. Doe Dep. at 1156, 1290, Pl.'s Ex. 1. On the day that the plaintiff sent his box of documents to his lawyer, the Kohn firm administrator inspected the box, and told members of the firm of its contents. A shareholder of the firm, Joseph Kohn, testified that shortly after learning of its contents, the board made a decision to ask the plaintiff for his key and his office pass. Joseph Kohn Dep. at 99-105, Defs.' Ex. 19. From these events, I infer that there is a genuine issue of material fact over whether the defendants' discriminatory motives were directly linked to the loss of plaintiff's job.
This conclusion is supported by Third Circuit cases which state that protected activity by an employee, closely followed by his discharge is some evidence of discriminatory motives. Jalil v. Avdel Corp., 873 F.2d 701, 709 (3rd Cir. 1989); see also Quiroga, 934 F.2d at 501. The fact that the defendants took away the plaintiff's pass and keys, changed the office locks, and packed up his belongings within four days of learning that he had sent a box of documents to his lawyer, suggests that retaliatory reasons may have led to the parties' parting ways. Post hoc. ergo propter hoc.
Defendants disagree and seek to avoid liability by pointing to what they believe are legitimate reasons for their actions. The gist of their argument is that the plaintiff was a disruptive employee, out of control. They state, for example, that he rifled surreptitiously through confidential firm documents, sent a box containing confidential documents to his attorney without the firm's permission, alarmed the office administrator by telling her that the box contained a bomb, and wrote to the media on firm letterhead in a bid to sell his story. I recognize that there is evidence in the record to support this position. However, there is also evidence to suggest that the real motivation was retaliatory. Accordingly, there is a jury question, and defendants' motion for summary judgment on the retaliation claim shall be denied. Plaintiff may proceed with that claim on a mixed motives theory.
Defendants seek summary judgment in their favor on the ADA discrimination count. With respect to this claim, plaintiffs are proceeding on a pretext theory alone. As with mixed motives cases, pretext cases proceed along a pattern of shifting burdens. The plaintiff must first establish a prima facie case. Griffiths, 988 F.2d at 469. Under the ADA, the plaintiff must show (1) that he is within the protected class; (2) that he was qualified for the job; and (3) that he was terminated.
The quantum of evidence that a plaintiff need show is that the disability "played a role in [defendant's] decisionmaking process and that it had a determinative effect on the outcome of that process. . . . It is not necessary for the plaintiff to prove that [the disability] was the sole cause of [defendant's] decision." Miller v. CIGNA Corp., No. 93-1773, 1994 U.S. App. LEXIS 16,158, at*2 (3rd Cir. June 28, 1994); see also Hazen Paper Co. v. Biggins, 507 U.S. , 123 L. Ed. 2d 338, 347, 113 S. Ct. 1701 (1993). The pretext plaintiff may rely on either circumstantial evidence or on direct evidence of discrimination. Griffiths, 988 F.2d at 470 (citations omitted).
If the plaintiff meets this burden, the burden shifts to the defendants to articulate a legitimate, non-discriminatory reason for the adverse employment decision. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-55, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If the defendants meet their burden, the plaintiff can succeed only if he can show that the employer's evidence is unworthy of credence. Burdine, 450 U.S. at 256.
Defendants contend that the plaintiff cannot make out his prima facie case because he is not within the protected class. They also contend that the plaintiff was not fired because of discrimination, but because of other legitimate reasons. The thrust of the defense argument is that even though HIV-positive status, most assuredly, is not a happy medical condition with which to be diagnosed, it is not, in fact, disabling. Thus, they say, he is not protected by the statute. The defense argues that plaintiff is able to do just about anything that needs to be done; certainly he is capable of doing that in the context of a law office and courtroom, his chosen line of work, and that here at issue. Occupationally, rather than being disabled, he is perfectly able. To this, the plaintiff responds that his ability to procreate, at least successfully - that is, with uninfected progeny - is impaired irreparably by his malady, and that inability, disability, being a major life activity, brings him within the purview of the statute.
The defense argues that this really is not a relevant concern. Not in any way to be facetious, but plaintiff is not being hired to practice procreation, or to be a professional blood donor, for example. He is being hired to practice law. The defense argues that although he may have some dysfunction in an utterly unrelated area - a dysfunction familiar to millions of Americans, who happen to be sterile, but who nevertheless go about ably living their lives - to hold that that medical problem makes the Act applicable to him would be to stretch the language and the purpose of the statute beyond the breaking point.
To analyze this, I must turn first to that language. 42 U.S.C. § 12102(2). The statute reads:
The term "disability" means, with respect to an individual - (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.
42 U.S.C. § 12102(2).
This plain language, although setting forth several specific criteria, provides no express guidance as to whether an HIV-infected person comes within the ambit of the Act. In interpreting the meaning of a statute, substantial deference is due the interpretation given its provisions by the agency charged with administering that statute. Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 129 L. Ed. 2d 405 (1994). The agency's interpretation must be given "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Id., (citing Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965)). Hence, for further guidance, I turn to the regulations defining the components of this statutory provision--(1) physical impairment and (2) substantially limits a major life activity.
Physical Impairment: The Equal Employment Opportunity Commission is the agency charged with administering Title I of the Americans with Disabilities Act, the subchapter proscribing employment discrimination. Its regulations define "physical impairment" as:
Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.
29 C.F.R. § 1630.2(h).
"Physiologic" is defined by Dorland's Medical Dictionary (27th ed. 1988) as "characteristic of or conforming to the normal functioning or state of the body or a tissue or organ." A physiological disorder is thus an abnormal functioning of the body or a tissue or organ. One can have one of the statutorily enumerated disabilities without being "disabled" in the usual, common, lay sense of the word. For example, the statute would apply to people who have high blood pressure, that being a hemic disorder, a proclaimed disability. Tens of millions of Americans walk around and live full and active lives, hypertense though they may be. To the lay eye, they hardly seem disabled, yet they have a "disability" within the statutory definition. That lay observation may have a certain common sense ring to it, but my role is not to construe the statute so that it might conform with a lay perception.
Rather, I must read with care the definitions of disability that Congress and the EEOC, gave us, and decide whether this plaintiff's disease and its symptoms fall within one or more of those express statutory and regulatory definitions, as anomalous as the statutory result might seem to some.
Around the third week of September, 1992, plaintiff developed a fever and a rash. Braffman Dep. at 50-51, Defs.' Ex. 24. During September through December, 1992, plaintiff's doctor noticed that his patient lost a lot of weight. Braffman Dep. at 27, 119-120, Defs.' Ex. 24. Towards the end of October and into November, plaintiff's skin became so dry and scaly that at least three people in the firm took note of it. Barretta Dep. at 43, Defs.' Ex. 8; Aberman Dep. at 57, Defs.' Ex. 9, Santiago Dep. at 123, Defendants' Ex. 20.
A fever is an "elevation of body temperature above the normal [which] may be due to such physiological stress as . . . excess thyroid hormone secretions, vigorous exercise, central nervous system lesions, or to infection by microorganisms, or to a host of noninfectious processes. . . ." Dorland's Medical Dictionary (27th ed. 1988). It could involve a physiological disorder of any one of the body systems listed in the Department of Labor regulations. A skin disorder which is sufficiently noticeable to be remarked upon by several people is classifiable as a cosmetic disfigurement. Further, HIV itself "creates a physiological disorder of the hemic (blood) and lymphatic systems." Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990) (citing Doe v. Dolton Elem. Sch. Dist. No. 148, 694 F. Supp. 440 (N.D. Ill. 1988)) (describing in detail the effects of HIV infection on the body). Dr. Braffman, plaintiff's physician, testified that in late September, 1992, "a few lymph nodes in the neck" were swollen, although not visible to the naked eye. Braffman Dep. at 50-51, Defs.' Ex. 24. Each of these symptoms fall within the regulatory definition of "physical impairment".
Substantial limits on major life activities: The regulations spell out "major life activities" as:
Functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. § 1630.2(i). The use of the words "such as" indicates that this list is illustrative and is not intended to be exclusive. 29 C.F.R. § 1630.2(i), EEOC Regulations, Appendix to Part 1630 - Interpretative guidance on Title I of the ADA. In construing the statute, trying to figure out just what it means, I deem it significant that the Congress chose to use the broad term "life" - "major life activities". That encompasses a lot. Had the term "work-life", or "work" been used - "major work activities", for example - it would, of course, suggest that the disability would only be deemed relevant in the on-the-job context. Instead, the term "working" appears as just one example of the various major activities embraced within the full scope of one's life. It is clear, therefore, that the language of the statute does not preclude procreating as a major life activity, but may well include it.
A major life activity is substantially limited when an impaired person is:
(i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual 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. § 1630.2(j).
Plaintiff argues that because the regulations define a "physical impairment" to include a disorder or condition that affects the "reproductive" system, 29 C.F.R. § 1630.2(h), the ability to procreate is a "major life activity" within the plain meaning of the ADA. The factual record in this case is thin, indeed, as to whether HIV status is a disorder or condition that affects the "reproductive" system. No physicians testified as to that, and the parties seemed content to rely on administrative 'findings and the rulings of other judges such as that given in Cain v. Hyatt, 734 F. Supp. 671 (E.D. Pa. 1990). That was a case involving a plaintiff with full-blown AIDS, in which Judge Broderick found in dictum that a person who is HIV-infected is substantially limited in a major life activity because of the significant risk of transmitting the HIV infection to a partner or a child, thereby endangering their lives. Id. at 679.
The defendants' motion for summary judgment is bottomed largely upon the thesis that plaintiff's illness falls without the types of disability defined, described, and illustrated in the statute and the regulations. Nothing in the record - no evidence, medical or otherwise - counters the above statutory construction, reinforced by administrative and judicial findings, that being HIV-positive places one within the protection of the Act. Upon a careful reading of the Act and its interpretive regulations, measured up against the record in this case, I conclude the plaintiff has a physical or mental impairment that substantially limits one or more of his major life activities, and thus has a disability within the meaning of the ADA. 12 U.S.C. § 12101(2)
Accordingly, plaintiff has met his threshold burden of establishing his prima facie case of disability discrimination.
In addition to proceeding on the theory that he has a disability within the meaning of the Act, the plaintiff also seeks to proceed on the theories that he has a record of impairment and that he was regarded as having an impairment.
The court finds that he does not have a record of impairment. A "record of such impairment" means a "history" of the condition. 29 C.F.R. § 1630.2(k). In School Bd. of Nassau County v. Arline, 480 U.S. 273, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987), the Supreme Court found that the plaintiff had a record of impairment because she had a history of tuberculosis. She was initially diagnosed with the disease in 1957, but it went into remission and did not return until twenty years later when she was a teacher in Nassau County. Id. at 276. The board fired her after three relapses in two years. The Court found that the plaintiff's 1957 hospitalization for tuberculosis sufficed to establish that she had a "record of impairment", and that she was therefore a handicapped individual within the meaning of section 504 of the Rehabilitation Act. Id. at 281. Because the ADA borrowed wholesale the provisions of section 504 to define what was meant by a "disability", the holding is applicable to the case at bar. Mr. Doe was not diagnosed with HIV until September 1992; it was that diagnosis which led to the events that form the basis for this suit. In my view, that is not a long enough record to constitute a history of impairment. His disease was virtually brand new. Accordingly, I hold that he does not have a record of impairment.
The third possible theory of liability under the ADA is not whether the plaintiff actually had an impairment, but whether he was regarded as having an impairment. If he was, that is enough. The expression is reasonably self-defining, but the regulations give greater specificity. Plaintiff is regarded as having an impairment if he:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others towards such impairment; or (3) Has none of the impairments defined [above] but is treated by a covered entity as having a substantially limiting impairment.
29 C.F.R. § 1630.2(1).
Defendants contend that the only evidence of perception of impairment in the record is that three people in the Kohn firm had heard or spread rumors that plaintiff was HIV-infected. The first two were the plaintiff's secretary and Mr. Asher's secretary. The plaintiff's secretary testified that she remembered discussing with Mr. Asher's secretary whether the plaintiff had AIDS, Karas Dep. at 52, Defs.' Ex. 10, a conversation which Mr. Asher's secretary confirmed. Barretta Dep. at 51, Defs.' Ex. 8. The third person was a member of the support staff, who testified that he had heard a discussion in a lunch room crowded with support staff, but with no lawyers. Harris Dep. at 22-23, Defs.' Ex. 11.
There is other evidence that there may have been a perception even in the higher echelons of the Kohn firm management that plaintiff was infected. In October, 1992, the plaintiff contacted John Bartlett, M.D., of Johns Hopkins University AIDS Services, about treatment with the drug AZT. Dr. Bartlett wrote back on Johns Hopkins stationery which, as mentioned supra, contained in the left-hand corner the words "AIDS Services". During the discovery phase of this case, the letter was found in the "personal file" of Steven Asher, a secretary in the firm having opened it as of course. Defendants argue that the letter is innocuous, not susceptible of suggesting to the casual reader that the plaintiff had the sort of medical problem that this case discusses. On the contrary, not to put two and two together upon reading that letter would require unusual opaqueness of vision. The defendants in this case are not dumb, and to miss that inference, one would have to be.
Nevertheless, defendants articulate a litany of legitimate reasons why plaintiff was fired, including allegations that he just was not up to the job. In contrast, Mr. Doe portrays himself as on the "fast-track to being a shareholder." Pl.'s Mem. in Opp. to Defs.' Mot. for Summ. J. at 14. Both sides present evidence in support of their contentions. Viewing the facts in the light most favorable to the plaintiff, I conclude that this, too, is a matter for the jury, the right to which I may not thwart.
Accordingly, defendants' motion for summary judgment, as to the retaliation and discrimination claims under the Americans with Disabilities Act claims, shall be denied.
Pennsylvania Human Relations Act
The Pennsylvania Human Relations Act, 43 Pa. C.S. § 955 [PHRA], which was modelled after Title VII, is analyzed the same as Title VII cases. That analysis achieves the same result as the ADA claim.
The plaintiff claims, under section 510 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1140, that one of the determining factors in defendants' decision to terminate him was their desire to deprive him of participation in the Kohn firm's disability program. Under the terms of his contract, plaintiff would have become vested in the program on July 22, 1993, shortly after he left the firm.
Section 510 provides in pertinent part:
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. .