discriminatory actions constituted ultimate employment decisions.
In support of this argument, defendants cite to Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir. 1997) and Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995), wherein the Fifth Circuit Court of Appeals reasoned that the retaliation provision of "Title VII was designed to address ultimate employment decisions and was not meant to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Mattern at 707; Dollis at 781-782. In finding that judgment as a matter of law was properly entered in favor of the defendant employers in both cases, the Fifth Circuit went on to find that actions such as the denial of a desk audit (which arguably could have restricted plaintiff's promotion opportunities), verbal threats of termination, criticism, reprimands, missed pay increases, receiving false information about aspects of employment and being placed on "final warning" did not constitute the kind of ultimate adverse employment actions contemplated by Title VII because these actions had only a tangential effect on a possible future ultimate employment decision. Rather, only "ultimate employment decisions" such as hiring, granting leave, discharging, promoting and compensating are actionable under Title VII. Mattern, at 707. See Also : Shafer v. Dallas County Hospital District, 1997 WL 667933 (N.D. Tex. 1997) at *4.
It is true that, in the Third Circuit, unlawful retaliation claims under the ADA are analyzed under the same framework as is employed for retaliation claims under Title VII. Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3rd Cir. 1997). However, defendants have not directed our attention to nor has our independent research revealed any authority in this Circuit to suggest that the Fifth Circuit's rationale in Mattern and Dollis applies with equal force in this circuit to retaliation claims brought under either Title VII, the ADA or the RHA.
Rather, the Third Circuit has consistently held that for a prima facie case of retaliation to be stated under both Title VII and the ADA, the plaintiff must show only: (1) a protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action. Krouse, supra, at 500; Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3rd Cir. 1997); Quiroga v. Hasbro, Inc., 934 F.2d 497, 501 (3rd Cir. 1991); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3rd Cir. 1989). To establish a violation of the Rehabilitation Act in this Circuit, a plaintiff need only prove: (1) that he or she is a handicapped individual under the Act; (2) that he was otherwise qualified for the position sought; (3) that he was excluded from the position sought solely by reason of his handicap; and (4) that the employer, program or activity at issue received federal financial assistance. Wagner by Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1009 (3rd Cir. 1995); Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3rd Cir. 1991); Toney v. U.S. Healthcare, Inc., supra. Thus, the Third Circuit has not required that an employer's adverse action must be an "ultimate" one as defined by the Mattern and Dollis courts and as we are not bound by the Fifth Circuit's decisions, we decline to adopt the Fifth Circuit's definition of "adverse employment action." See Also : Deavenport v. MCI Communications Corp., 973 F. Supp. 1221 (D.Colo. 1997). Accordingly, defendants' motion for dismissal on this basis is denied and plaintiffs' retaliation claims under the ADA and the RHA shall also be permitted to proceed.
E. Mrs. Saylor's Claim for Unjust Enrichment
Defendants next move to dismiss wife-plaintiff's claim that she should have been compensated for the secretarial services which she provided to her husband while he worked at home. Specifically, defendants contend that this court lacks the requisite subject matter jurisdiction to entertain this claim and, alternatively, that this claim has not been sufficiently pled.
In light of our holding in Subsection A of this Memorandum that plaintiffs knew or should have known of the Commonwealth's refusal to compensate them for the work which they performed at home by September, 1994 and that these claims are therefore barred by the statute of limitations, defendants' motion to dismiss this claim is granted.
Standing of National Federation of the Blind
Defendants next move to dismiss the National Federation of the Blind of Pennsylvania as a party defendant as to the Title VII and ADA Title I claims on the grounds that the Federation does not have sufficient standing given its failure to exhaust its administrative remedies. As previously noted, the plaintiffs have stipulated to the dismissal of their claims under Title VII. Likewise, at subsection B of their Memorandum of Law in Response to Defendants' Motion to Dismiss, plaintiffs have conceded that they were required to exhaust their administrative remedies under Title I of the ADA. Accordingly, these claims are dismissed in their entirety.
G. Availability of Punitive Damages under the RHA and ADA
Finally, defendants seek the dismissal of plaintiffs' claim for punitive damages in Count II of their Complaint. It is defendants' assertion that punitive damages are not recoverable under the RHA or under Title II of the ADA. In support of this argument, defendants cite to a Sixth Circuit case, Moreno v. Consolidated Rail Corp., 99 F.3d 782 (6th Cir. 1996).
Again, defendants raise an issue which neither the Third Circuit nor the U.S. Supreme Court have resolved. Nevertheless, we find some guidance in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992), wherein the Supreme Court, holding that monetary damages are an available remedy in actions to enforce Title IX, observed: "Although we examine the text and history of a statute to determine whether Congress intended to create a right of action, we presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise." 503 U.S. at 66, 112 S. Ct. at 1032. In like fashion, the Third Circuit in W.B. v. Matula, 67 F.3d 484 (3rd Cir. 1995) made the same observation in support of its finding that injunctive relief and monetary damages are recoverable under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Since then, the Third Circuit has concluded that monetary damages are also permitted to be recovered under the ADA because, "the remedies, procedures and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title." Jeremy H. by Hunter v. Mount Lebanon School District, 95 F.3d 272, 279 (3rd Cir. 1996). It is true that until 1994, a majority of cases held that punitive damages were not available under § 504. Since then, however, the majority of courts seem to have shifted, holding that punitive damages are permitted under § 504. Burns-Vidlak v. Chandler, 980 F. Supp. 1144, 1997 U.S. Dist. LEXIS 16202, 1997 WL 641109 (D.Hawaii 1997) at *2, citing Todd v. Elkins, 105 F.3d 663 (8th Cir. 1997); Kilroy v. Husson College, 959 F. Supp. 22 (D. Me. 1997); Hernandez v. Hartford, 959 F. Supp. 125 (D.Conn. 1997); Garrett v. Chicago School Reform Board, 1996 U.S. Dist. LEXIS 10194, 1996 WL 411319 (N.D.Ill. 1996); Deleo v. Stamford, 919 F. Supp. 70, 75 (D.Conn. 1995); Zaffino v. Surles, 1995 U.S. Dist. LEXIS 4225, 1995 WL 146207 (S.D.N.Y. 1995) and Simenson v. Hoffman, 1995 U.S. Dist. LEXIS 15777, 1995 WL 631804 (N.D.Ill. 1995). See Also : Mild v. Mehlville Public School District, 1995 WL 819138 (E.D.Mo. 1995).
Moreover, those courts in this district which have considered whether to permit punitive damages claims to go forward under the RHA and the ADA, have answered these questions in the affirmative. Kedra v. Nazareth Hospital, 868 F. Supp. 733, 740 (E.D.Pa. 1994); Doe v. William Shapiro, Esquire, 852 F. Supp. 1246, 1255 (E.D.Pa. 1994). In reviewing both the ADA and the RHA, we cannot find any express indication from Congress that it intended to prohibit the recovery of punitive damages under these Acts. We are therefore inclined to follow Kedra and Doe and conclude that plaintiffs' punitive damages claims under Count II of their complaint should not be stricken at this point in the proceedings.
For all of the reasons set forth above, defendants' motion to dismiss shall be granted in part and denied in part. An appropriate order follows.