The opinion of the court was delivered by: CINDRICH
In this action based on employment discrimination, the court by Memorandum Opinion and Order dated August 28, 1996 granted defendant's ("Beinhauer") motion to dismiss claims of wrongful discharge and intentional infliction of emotional distress, and granted former defendant Richard C. Beinhauer's motion to dismiss claims against him individually. Doc. No. 19. The court denied as premature the motion to dismiss as to plaintiff's ("Marsaglia") claims for disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq., and his claim that he was not notified of his right to continue his health insurance under the Comprehensive Omnibus Budget Reconciliation Act of 1985 ("COBRA"), 26 U.S.C. § 1161, et seq. Because of the particular facts of the case Beinhauer had collected and presented evidence which supported summary disposition, but the requirements of Federal Rule of Civil Procedure 12(b)(6) and controlling case law, and the lack of opportunity for Marsaglia to take discovery, dictated that the issues relevant to disability discrimination and COBRA notice could not be decided on a threshold motion.
The parties have now proceeded through discovery. Beinhauer renews its request for summary disposition via a motion under Federal Rule of Civil Procedure 56, which Marsaglia has duly opposed; each party has filed a principal brief, a reply brief, and supporting evidentiary materials. On the merits of the disability discrimination claim, the court acknowledged in its previous memorandum opinion the controlling effect on this case of a then recent Third Circuit decision, McNemar v. The Disney Store, 91 F.3d 610 (3d Cir. 1996), cert. denied, 136 L. Ed. 2d 845, 117 S. Ct. 958 (1997). For the reasons stated below, following McNemar, we will grant the motion for summary judgment as to the disability discrimination claim. Summary judgment will also be granted as to Marsaglia's COBRA claim for failure to show a genuine issue of material fact regarding a violation as alleged in the Complaint.
An outline of the relevant facts is contained in the court's August 28, 1996 memorandum opinion, which we will supplement here. Beinhauer operates a series of funeral homes. It hired Marsaglia in September 1983. Marsaglia became a licensed funeral director in 1985, and was assigned to Beinhauer's branch in the Lawrenceville neighborhood of Pittsburgh. He lived there in an apartment Beinhauer owned.
Shortly after his employment began, Marsaglia was involved in an incident in which Beinhauer, through Marsaglia's misidentification of bodies retrieved from the county morgue, cremated the wrong body. More than ten years later in April 1994, Marsaglia began experiencing a skin rash. His dermatologist believed that the rash had been brought on by stress. Marsaglia's treating psychologist later attributed the stress to the 1983 cremation incident.
After calling in sick for two days in May 1994, Marsaglia met with Beinhauer's president, Richard Beinhauer. Marsaglia told Beinhauer that he was seeing a psychiatrist. Plaintiff's Appendix I, Doc. No. 34, Beinhauer Transcript, Tab C at 82.
In June 1994, Marsaglia was transferred to Beinhauer's office in Dormont, Pennsylvania, a location with roughly three times the amount of business. Id. Tab D at 256. According to Marsaglia, interactions between him and Richard Beinhauer for the next two months ranged between appreciative and critical. When Richard Beinhauer asked Marsaglia in late June or August 1994 if he would continue to be active in the Lawrenceville community, Marsaglia responded that he could not both perform his duties in Dormont and be active in Lawrenceville in his then current physical and mental condition. Compare Tab C, Beinhauer Transcript at 106-07 with Tab A, Marsaglia Transcript, at 99-100. By letter dated August 30, 1994, Richard Beinhauer informed Marsaglia that he would be required to vacate the apartment by September 30, 1994. Id. at 100-08.
Around September 5, 1994, Marsaglia complained to the Occupational Safety and Health Administration ("OSHA") about various safety violations he believed were present in the workplace in Dormont. Marsaglia Transcript at 159-66. Around September 6, 1994, Marsaglia filed two complaints with the State Board of Funeral Directors suggesting improprieties with the signing of names on death certificates and the listing of a supervisor at a funeral home. Id. at 153-56. In a letter dated September 22, 1994, Marsaglia wrote to OSHA that he was being retaliated against for his earlier complaints about workplace safety violations. Id. at 166. OSHA eventually cited Beinhauer for safety violations.
Marsaglia called off sick October 3, 4, and 6, and had a scheduled day off October 5. His depression was the source of his inability to work, though he did not mention this to the Beinhauer staff with whom he spoke when he called in to report his absences. Id. at 125-30. He obtained a doctor's excuse for his absences on October 3 and 4 and faxed it to Beinhauer on October 4. Marsaglia also did not report to work on October 7. By letter dated October 7, 1994, Richard Beinhauer terminated Marsaglia's employment for poor performance, falsifying company records, violating safety procedures, failing to vacate the Lawrenceville apartment, and being absent since October 4 without excuse. Doc. No. 34, Beinhauer Transcript, Tab C, Exhibit 6.
Q: Do you feel today, you'd be able if you had a job, to return back to Beinhauer as a Funeral Director?
A: Are you asking, could I return back?
A: No, I don't think so. Not at all.
Doc. No. 7, Tab 2 at 27. At another workers' compensation hearing on July 10, 1995, Marsaglia was asked by his attorney, whether he could, at that time, "go back and do the job as a funeral director." Marsaglia responded "No, I do not." Id. Tab 3 at 19. At an October 16, 1995 workers' compensation hearing, Marsaglia testified under oath:
Q: Have you returned to work since the last time ...