The opinion of the court was delivered by: ROBERT S. GAWTHROP, III
This case, before the court on defendants' motion for summary judgment, involves a lawyer infected with the Human Immunodeficiency Virus ["HIV"] who claims that his law firm fired him because of his infection.
Plaintiff's First Amended Complaint alleges that the defendants violated a number of federal and state statutes: Title I of the Americans with Disabilities Act, 42 U.S.C. § 12112, et seqa. [ADA], as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a; section 510 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1140 [ERISA]; the Pennsylvania Human Relations Act, 43 Pa. C.S. § 955 [PHRA] ; and the Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260.5, Act of July 14, 1961, P.L. § 5. The complaint also alleges a cause of action for breach of contract, breach of the implied covenant of good faith and fair dealing, invasion of privacy, defamation, intentional infliction of emotional distress, and civil conspiracy.
seek summary judgment on all claims. The standards for summary judgment are not unfamiliar. Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The inquiry for the court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A party opposing summary judgment must marshal sufficient facts to show that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When deciding a motion for summary judgment in an employment discrimination case, the court must decide whether sufficient evidence exists to create a genuine issue of whether an employer intentionally discriminated. Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3rd Cir. 1990).
The relationship between the plaintiff and the defendants began in July, 1991, when plaintiff was hired under contract to work for the Kohn firm. He spent most of his time working for Steven Asher, Esquire. At first, things seemed to be working out well. Mr. Asher gave the plaintiff a lot of responsibility and praised his work often. Six months after he arrived, the shareholders voted the plaintiff a $ 3,500 bonus, $ 1,000 more than he was expecting. 1992 apparently went well also. Although to terminate the plaintiff's contract, the firm was required to give him ninety days written notice by October 1, it did not do so.
Plaintiff alleges that the situation began to change after the fall of 1992 when he learned that he was HIV-infected. He had a high fever, lost weight, and developed a dry, scaly skin condition. He contacted several physicians. Some members of the firm's support staff wondered aloud whether he had acquired Acquired Immune Deficiency Syndrome [AIDS].
On November 25, 1992, plaintiff received a letter from one of the physicians he had contacted, John Bartlett, M.D. The letter was written on stationery, the letterhead of which contained the words "Infectious Diseases" and "AIDS Services":
Division of Infectious Diseases
Philadelphia, PA 19107-2924
This is in response to your letter of November 13, 1992.
I will be glad to see you either here in Baltimore or discuss your case by telephone as we did before. Just let me know how you want to proceed. There is no charge for telephone consultation.
Chief, Division of Infectious Diseases
Pl.'s Ex. 101. The plaintiff contends that just days after he received this letter, defendant Asher stopped assigning him work, stopped speaking with him, and avoided physical contact with him.
In the new year, the Kohn firm did not give the plaintiff a pay raise. On January 13, 1993, Mr. Asher told the plaintiff that he did not meet expectations, and that the firm had decided not to renew his contract for 1994. Pl.'s Ex. 108. Asher memorialized the conversation in a memo to the file, which read in pertinent part:
I spoke to [Mr. Doe] last week to discuss his status at the firm. I told him that after working with him for roughly eighteen months, I came to the conclusion that his work was substantially below the acceptable level of work required by the firm. I told him that other persons who worked with him apparently shared that evaluation. . . . I told him that because of our belief that he did not perform at a satisfactory level, and was not likely to progress at the firm, the firm had decided not to renew his contract for the year 1994. He would be permitted to remain with the firm until December 31, 1993. I told him that the problems related entirely to the quality of his written . . . work, and not his working relationships with other attorneys and the staff, which appear to be satisfactory.
Pl.'s Ex. 112. Plaintiff disputes the accuracy of this account. Mr. Asher told at least one other member of the firm what was in the memo. The firm did not, however, at that time provide plaintiff with written notice.
Plaintiff alleges that at this juncture the defendants tried to nudge him out by assigning him work that was beneath his abilities, reassigning his secretary to another attorney, taking away his computer, and conducting meetings without including the plaintiff, among other minor and not-so-minor indignities. Plaintiff says he tried to bring his concerns to the attention of the firm management, but they did nothing. Finally, plaintiff contacted an attorney and, on March 8, 1993, sent a box of materials from Kohn, Nast & Graf in Philadelphia to his then lawyer's office in Washington, D.C. The Kohn firm's administrator asked about the contents of the box. Plaintiff says he avoided a direct answer by jokingly asking "what do you think, a bomb or something?" Shortly after that, she warned the plaintiff that if he sued the firm Harold Kohn and Dianne Nast would blackball him in Philadelphia.
On March 11, 1993, the plaintiff travelled to Washington, D.C. Upon his return to the firm the next day, he found the contents of his office boxed up, and the locks on his office changed. The firm administrator and Harold Kohn demanded 'that he return his key and office pass. Plaintiff says he was fired; the defendants say he left on his own accord. On August 19, 1993, plaintiff sued both the firm and Steven Asher.
With regard to his claims under the Americans with Disabilities Act, counsel for plaintiff has informed the court that he is proceeding on a pretext theory as it relates to the discrimination claim, and a mixed motives theory as it relates to the retaliation claim. Defendants maintain that plaintiff can only proceed on a pretext theory. Which theory applies is significant, because the order and allocation of proofs in employment discrimination cases differ with each theory. The trial court is required to decide whether the case is one of pretext or mixed motives. Griffiths v. CIGNA Corp., 988 F.2d 457, 472 (3rd Cir.), cert. denied, 126 L. Ed. 2d 145, 114 S. Ct. 186 (1993).
For the following reasons, I find that there is sufficient direct evidence of retaliation to allow plaintiff to proceed on that claim on a mixed motives theory. Plaintiff's retaliation claim is premised on a violation of section 12203 of the Americans with Disabilities Act, which provides:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.
The order and allocation of burdens of proof in retaliation cases follow the standards established for Title VII cases generally. Griffiths, 988 F.2d at 468. The plaintiff must first establish a prima facie case of retaliation. In a mixed motives case, if the plaintiff is successful in meeting his burden of persuasion, the burden shifts to the defendants, who avoid liability for damages only by establishing an affirmative defense. Id. at 469. An employer may be found to have violated the statute where discriminatory reasons were a motivating factor for an employment practice, even though other factors also motivated the practice. 42 U.S.C. § 2000e-2(m).
Defendants contend that summary judgment must be granted on the retaliation claim because plaintiff has failed to establish his prima facie case. The elements of a prima facie case of retaliation are that (1) the plaintiff engaged in protected activity; (2) he was discharged after or contemporaneous with the activity; and (3) a causal link existed between the protected activity and the loss of the job. Quiroga v. Hasbro, Inc., 934 F.2d 497, 501 (3rd Cir.), cert. denied, 116 L. Ed. 2d 327, 112 S. Ct. 376 (1991).
The defendants first question whether the plaintiff was engaged in protected activity before the alleged firing. Specifically, defendants suggest that because the plaintiff had yet to file a charge with the Equal Employment Opportunity Commission on March 12, 1993, the date he left the firm, he had not engaged in activity protected by the statute. That, however, is not the test. A threat to sue may suffice. Id.3 It is also the EEOC's position that consulting an attorney regarding one's rights is protected activity under the Act. EEOC Dec. 84-3, 34 L.R.R.M. 1887 (1984).
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, ...