any submissions by Layser to the contrary, I find summary judgment appropriate on Layser's ADA claims.
Even if Layser could argue he suffered from a disability, it was too temporary to warrant relief under the ADA because West Chester only removed him from active duty for approximately three months. The regulations state "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." 29 C.F.R. § 1630 App. See McDonald v. Pennsylvania Dep't of Public Welfare, 62 F.3d 92, 96 (3d Cir. 1995) (finding inability to work for slightly under two months "not permanent, nor for such an extended time as to be the type contemplated by the [ADA]").
Finally, I note that Layser cannot bring an ADA claim against Dr. Morrison, a private physician with no affiliation to Layser's employer, because Dr. Morrison does not qualify as a covered entity under the ADA. See 42 U.S.C.A. §§ 12111(2), 12112(a).
3. AFFIRMATIVE DEFENSES
West Chester contends that even if Layser can show he suffered from a disability under the ADA and filed his Complaint on time, affirmative defenses provided by the ADA would prevent Layser from proving discrimination. I agree. The ADA provides that it may be a defense to a charge of discrimination that certain qualifications standards and selection criteria are job related, consistent with business necessity, and accomplished by reasonable accommodation. See 42 U.S.C.A. § 12113(a). "Qualification standards" include "a requirement that an individual shall not pose a direct threat to the health and safety of other individuals in the workplace." 42 U.S.C.A. § 12113(b). "Direct threat" means "a significant risk to the health and safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C.A. § 12111(3).
In support of its contention that Layser posed a significant risk to others, West Chester points to the following evidence. Dr. Morrison testified that after meeting with Layser, Dr. Morrison contacted Bicking to inform him that Layser had thoughts of hurting Bicking. Dr. Morrison feared Layser would, in fact, act on his images of shooting Bicking in the head. When requesting workers compensation for his sick leave, Layser stated "I told him [Dr. Morrison] that I had never really felt like this before, and that as an armed police officer, I felt that I should not go to work until I got better control of the stress and anger that was bothering me." Def.'s [West Chester] Mem. Supp. Summ. J. Ex. 9. "I told him that I didn't know what was happening to me, but that I feared that if I had to go to work right now and deal with the Director [Bicking] or others that I was angry with while I felt as I did I might end up in trouble." Id. West Chester has provided sufficient submissions to illustrate the potential harm Layser posed was significant. The evidence presented could prove that a threat existed that Layser might have, acting under stress, anger, and depression, shot Bicking. Layser has not provided any summary judgment evidence to contradict this. Accordingly, I find that West Chester has shown that affirmative defenses available to it under the ADA would preclude Layser's claim.
C. MEDICAL MALPRACTICE
Counts III and IV of Layser's Complaint assert causes of action against Dr. Morrison for medical malpractice and violations of the psychotherapist-patient privilege. Specifically, Layser alleges the Dr. Morrison did not treat him according to the appropriate professional standards in breaching the psychotherapist-patient privilege and notifying Bicking that Layser posed a threat. Pl.'s Compl. P 22. Layser cannot sustain these causes of action because the applicable limitations period has lapsed. Under Pennsylvania law, a two year statute of limitations applies to any actions to recover damages for injuries caused by the negligence of another. See Pucci v. Litwin, 828 F. Supp. 1285, 1299 (N.D. Ill. 1993) (finding federal court exercising supplemental jurisdiction applies, absent a borrowing statute, the forum state's statute of limitations); 42 Pa. Cons. Stat. Ann. § 5524(2) (West 1981 & 1995 Supp.). The statute of limitations in a medical malpractice case commences when "the plaintiff has knowledge, or through the exercise of reasonable diligence, would have had knowledge of (1) his or her injury; (2) the operative cause of his or her injury; and (3) the causative relationship between his or her injury and the operative conduct." Citsay v. Reich, 380 Pa. Super. 366, 551 A.2d 1096, 1098 (Pa. Super. Ct. 1988) (citation omitted). Dr. Morrison testified that he told Layser on February 14, 1992 that certain legal obligations demanded Dr. Morrison to warn Bicking of Layser's feelings.
Layser learned about the alleged malpractice on February 14, 1992 and waited over two years, until March 10, 1995, to file the instant action. Layser has not submitted any summary judgment evidence which contradicts this and could prove the Dr. Morrison committed negligent acts which Layser was not aware of after February 14, 1992.
Thus, summary judgment is proper on these claims.
AND NOW, this 5th day of December, 1995, upon consideration of Defendant West Chester State University's unopposed Motion for Summary Judgment (Doc. No. 22) and Defendant Donald W. Morrison's unopposed Motion for Summary Judgment (Doc. No. 23), IT IS HEREBY ORDERED THAT:
1. Defendant West Chester State University's Motion for Summary Judgment is GRANTED.
2. Defendant Donald W. Morrison's Motion for Summary Judgment is GRANTED.