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November 12, 1997


The opinion of the court was delivered by: JOYNER



 Defendant, Southeastern Pennsylvania Transportation Authority ("SEPTA") has filed a motion for summary judgment on all claims set forth against it by plaintiff in this ADA/PHRA action. For the reasons which follow, the motion is granted in part and denied in part.


 In January, 1981, SEPTA hired the plaintiff, William Latch, as a bus driver working out of its 69th Street terminal. (Exhibit 1, p.9). Following a brief layoff that same year, plaintiff resumed work as a bus driver in January, 1982 and continued to work full time for SEPTA until February 23, 1992 when he suffered a myocardial infarction (heart attack). (Exhibit 1, pp.10-11). Although plaintiff's treating physician certified that he could return to his usual duties as a bus driver on May 4, 1992, SEPTA's medical department disqualified him from the position because his thallium stress tests continued to show that Mr. Latch had ischemia. (Exhibit 9). As a result, plaintiff was effectively terminated from his employment with SEPTA one year later. (Exhibit 1, pp. 11-14; Pl's Complaint, and Defendant's Answer, Ps 19, 23-24, 26-27).

 In April, 1993, plaintiff filed the first of two charges of discrimination with the Equal Employment Opportunity Commission against SEPTA alleging that SEPTA's actions constituted unlawful discrimination against him in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. (Exhibits 11 and 12). Mr. Latch filed a second charge with the EEOC in December, 1994 alleging that SEPTA's refusal to hire him for a part-time driver in its tourist-centered "Philly Phlash" bus program was in retaliation for his earlier charge of discrimination and thus constituted a second violation of the ADA. (Exhibits 12 and 13). On May 12, 1995, the EEOC issued a determination with respect to the first charge that the evidence presented to it established a probable violation of the ADA. (Exhibit 9). In July, 1996, plaintiff received a right to sue letter from the EEOC on his second charge. (Pl's Complaint, Exhibit 4). Plaintiff thereafter filed this lawsuit on September 3, 1996 in which he again alleges that SEPTA's refusals to allow him to return to work as a bus driver after May, 1992 and to hire him for the Philly Phlash program were violations of the ADA and the Pennsylvania Human Relations Act, 43 P.S. § 951, et. seq. Defendant responded by filing an answer with affirmative defenses in which it contends that no violations of either Act occurred as plaintiff was not a qualified individual with a disability since he could not perform the essential functions of the job because he had active ischemia. At the completion of discovery, defendant filed this motion for summary judgment.

 Standards Governing Motions for Summary Judgment

 The legal standards and principles to be followed by the district courts in resolving motions for summary judgment are clearly set forth in Fed.R.Civ.P. 56. Subsection of that rule states, in pertinent part, ... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

 As a general rule, the party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories and ad- missions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In considering a summary judgment motion, the court must view the facts in the light most favorable to the party opposing the motion and all reasonable inferences from the facts must be drawn in favor of that party as well. U.S. v. Kensington Hospital, 760 F. Supp. 1120 (E.D. Pa. 1991); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D. Pa. 1990).

 When, however, "a motion for summary judgment is made and supported [by affidavits or otherwise], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response...must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate may be entered against [it]." Fed.R.Civ.P. 56(e).

 A material fact has been defined as one which might affect the outcome of the suit under relevant substantive law. Boykin v. Bloomsburg University of Pennsylvania, 893 F. Supp. 378, 393 (M.D.Pa. 1995) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id., citing Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.


 By way of its motion for summary judgment, defendant contends that plaintiff cannot prevail because the record now establishes that at the time its medical department disqualified him as a bus operator in 1992, he had (and may still have myocardial ischemia) and that this court does not have jurisdiction to consider plaintiff's claim that SEPTA failed to reasonably accommodate him as this issue was not raised before the EEOC. In addition, defendant submits and plaintiff concedes, that there is insufficient evidence that the decision to not hire him for the Philly Phlash bus program was in retaliation for his filing the earlier charge of discrimination with the EEOC. In view of plaintiff's concession, summary ...

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