the ADA if his employer discriminated against him based on this impression. Since plaintiff's illness was well-known to his employers, it is a factual question reserved for a jury whether his employer regarded him as having such an impairment and then discriminated against him because of it. Kelly, 907 F. Supp. at 874.
Since a jury could find that plaintiff was regarded as having a disability, we must next determine whether plaintiff was a "qualified individual with a disability." Plaintiff and defendant have both agreed that plaintiff was capable of performing his job with the accommodations defendant made; indeed defendant has admitted that the essential function of plaintiff's job is that of supervising and that that task could be done without requiring plaintiff to perform any of the activities prohibited by his doctor. Therefore, plaintiff meets the test for a "qualified individual with a disability."
Nevertheless, plaintiff must also present a prima facie case of discrimination, which requires plaintiff to not only show that he has a disability within the meaning of the statute, and that he was terminated, but also that his work performance met the employer's legitimate job expectations, and employees not in the protected class were treated more favorably. Kelly, 907 F. Supp. at 872. Plaintiff has not refuted defendant's allegations that his work performance was unsatisfactory, neither has plaintiff shown that other employees were treated more favorably. Accordingly, plaintiff has failed to present a prima facie case and his ADA claim is dismissed.
III. Negligent and Intentional Infliction of Emotional Distress Claims
We next consider plaintiff's claims of negligent and intentional infliction of emotional distress. Plaintiff has claimed that he experiences emotional distress that is evidenced by crying. Initially, we note that the worker's compensation statute bars an employee from suing an employer for negligent and intentional emotional distress claims. See Dugan v. Bell Telephone of Pennsylvania, 876 F. Supp. 713, 723-4 (W.D.Pa. 1994). Furthermore, in order to prove the negligent infliction of emotional distress, plaintiff must show that he experienced bodily harm. See Banyas v. Lower Bucks Hospital, 293 Pa. Super. 122, 437 A.2d 1236, 1239 (Pa. Super. 1981). Plaintiff has not done so and indeed, plaintiff seems to have misunderstood the law in this area. In response to defendant's arguments that plaintiff must show he experienced bodily harm, plaintiff has pointed to the physical act of crying and stated that the heaving of the upper torso, difficulty in breathing, and the excretion of tears are physical acts which meet the physical harm requirement. Yet, plaintiff is not required to show a physical act, rather plaintiff must show physical harm. Since he has failed to do so, plaintiff's negligent infliction of emotional distress claims must be dismissed.
In order to show that defendant is guilty of the intentional infliction of emotional harm, plaintiff must show that defendant's acts were so extreme in degree that they could be considered outrageous. 437 A.2d at 1238. This plaintiff has not done. See e.g. Cox v. Keystone Carbon Co., 861 F.2d 390 (3d. Cir. 1988) (firing defendant the first day back at work after triple bypass surgery even though the emotional pain could affect recovery was not intentional infliction of emotional distress). Accordingly, plaintiff's emotional distress claim is dismissed.
Plaintiff's ADA claim is dismissed because plaintiff has failed to present a prima facie case of discrimination. Furthermore, plaintiff's negligent and intentional infliction of emotional distress claims are also dismissed because plaintiff has failed to prove that he suffered physical harm or that defendant's actions were outrageous. Accordingly, defendant's summary judgment motion is granted.
An appropriate Order follows.
AND NOW, this 14th day of January, 1997, upon consideration of Defendant's Motion for Summary Judgment, said motion is GRANTED.
BY THE COURT:
J. Curtis Joyner, J.