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MCCOY v. PENNSYLVANIA POWER & LIGHT CO.

July 30, 1996

MICHAEL W. McCOY, Plaintiff
v.
PENNSYLVANIA POWER AND LIGHT COMPANY, Defendant



The opinion of the court was delivered by: MCCLURE

 July 30, 1996

 BACKGROUND:

 Plaintiff Michael W. McCoy brings this action against his employer, Pennsylvania Power and Light Company (PP&L), alleging the violation of his rights under the Americans With Disabilities Act of 1990, (ADA) 42 U.S.C. §§ 12101-12134. Plaintiff alleges that PP&L revoked his security clearance because he is an alcoholic. The revocation of his security clearance precluded plaintiff from remaining in his job as a nuclear plant operator. PP&L reassigned him to a position on the loading dock which does not require security clearance. Plaintiff protests the reassignment and revocation of his security status as a violation of his rights under the ADA.

 PP&L moves to dismiss the complaint under Rule 12(b) for failure to state a cause of action. Its motion is unopposed. Local Rule 7.6. For the reasons which follow, we consider the motion on the merits and will dismiss the complaint.

 DISCUSSION

 Rule 12(b)(6) motion

 In deciding defendants' motion, we are "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). "In determining whether a claim should be dismissed under Rule 12(b)(6)," we look "only to the facts alleged in the complaint and its attachments without reference to other partes of the record." Id. Dismissal is not appropriate unless "it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id.

 ADA claims

 The ADA was enacted to bar employers from discriminating against qualified individuals with a disability. To establish a prima facie case under the ADA, a plaintiff must show that: 1) he is "disabled" as defined by the ADA; 2) he is qualified, with or without reasonable accommodation, to do the job he held or seeks; and 3) his failure to get or keep the job constituted unlawful discrimination based on his disability. Adapted from White v. York International Corp., 45 F.3d 357, 360-61 (10th Cir. 1995); Tyndall v. National Educ. Ctrs., 31 F.3d 209, 212 (4th Cir. 1994); Zambelli v. Historic Landmarks, Inc., 1995 U.S. Dist. LEXIS 3335, 1995 WL 116669 at *3 (E.D. Pa. Mar. 20, 1995); and 42 U.S.C. § 12112(a).

 Under the ADA, a "qualified individual with a disability" is one who "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Acts of discrimination may include failing or refusing to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" who is a current or prospective employee. 42 U.S.C. § 12112(b)(5)(A).

 McDaniel v. AlliedSignal

 At issue in this case is the interplay between the regulations propounded by the Nuclear Regulatory Commission (NRC) requiring that only individuals with security clearance be permitted to serve as nuclear plant operators, 10 C.F.R. Chapters 26 and 73, and the provisions of the ADA.

 The United States District Court for the District Court of Missouri considered the interplay between government-mandated security clearance requirements and the ADA in McDaniel v. AlliedSignal, Inc., 896 F. Supp. 1482 (W.D.Mo. 1995). Floyd McDaniel was employed by a government contractor, AlliedSignal, Inc. (AlliedSignal), which performed work for the United States Department of Energy (DOE). Under the terms of its contract, AlliedSignal had to conform to all DOE security requirements and could not allow individuals to have access to classified information unless the requirements of the Atomic Energy Act, Executive Order 12356 and DOE security regulations and requirements, 10 C.F.R. §§ 710.1-710.60, were met. Because all AlliedSignal employees had access to classified information relating to national security, DOE imposed a contractual requirement that all AlliedSignal employees obtain and maintain a DOE security access authorization (security clearance) from the federal government.

 A DOE Administrative Order required contractors to "establish and implement procedures within their organization to assure that information regarding any employee mental illness which may cause a significant defect in judgment or reliability is promptly brought to the contractor's attention." Id. at 1484.

 An awareness of such difficulties triggers an obligation on the part of the employer to alert DOE. "Once aware of this information, the contractor must promptly notify the appropriate DOE official with specific data." Id. "Relevant to this action, when an employee who may have a mental illness has been hospitalized or is otherwise being treated, the contractor must provide the DOE with


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