expected to procure[.]" Pl.'s Br. in Resp. to Mot. for Summ. J.
at p. 5.
(12) Title III of the ADA prohibits disability discrimination
by public accommodations in the "full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or
accommodations." 42 U.S.C. § 12182(a). More specifically, the ADA
proscribes the discriminatory denial of services on the basis of
disability. 42 U.S.C. § 12182(b)(1)(A)(i). The ADA also forbids
the provision of unequal or different services to individuals
with disabilities. Id. at (b)(1)(A)(ii) and (iii). Likewise,
the RHA provides that "[n]o otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial
assistance[.]" 29 U.S.C. § 794(a).
(13) We hold that there is evidence that Kring effectively
denied Merchant dental services on February 9, 1995, when he
prescribed an HIV test and exited the examination room without
treating plaintiff. Moreover, assuming that Kring did not deny
Merchant dental services merely because he prescribed an HIV
test, Kring provided Merchant with unequal and/or different
services because defendant did not require others to submit to an
HIV test. Merchant has produced sufficient evidence of
discriminatory treatment to survive summary judgment.
(14) Next, Kring claims that punitive damages are unavailable
under the RHA and, in the alternative, that the facts do not
warrant such an award.
(15) The courts are split on whether punitive damages are
available under the RHA. However, more recently, some courts have
held that punitive damages are available. Saylor v. Ridge,
989 F. Supp. 680, 690 (E.D.Pa. 1998) (collecting cases); Kedra v.
Nazareth Hosp., 868 F. Supp. 733, 740 (E.D.Pa. 1994). This shift
in policy to allow punitive damages follows the decision in
Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 112 S.Ct.
1028, 117 L.Ed.2d 208 (1992). In Franklin, the Supreme Court
held that compensatory damages are available under Title IX
reasoning that "we presume the availability of all remedies
unless Congress has expressly indicated otherwise." Id. at 66,
112 S.Ct. 1028. Following Franklin, many courts have permitted
punitive damages claims under the RHA finding no indication that
punitive damages are unavailable. See, e.g., Saylor, 989
F. Supp. at 690. We agree with those courts which have held that
punitive damages are available under the RHA. Plaintiff has
presented sufficient evidence of intentional and reckless conduct
to allow the claim to go forward.
(16) Lastly, Kring alleges that Merchant has failed to offer
evidence of pretext. Merchant retorts that evidence of pretext is
unnecessary when there is direct evidence of discrimination. We
(17) The familiar burden shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973), also guides cases under the ADA and RHA.
Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir.
1996) (ADA); Antol v. Perry, 82 F.3d 1291, 1299 (3d Cir.
1996) (RHA). This analytical framework, which allows presumptions
based upon circumstantial evidence, was implemented because there
is rarely direct evidence of discrimination. Olson, 101 F.3d at
955. However, "the McDonnell Douglas test is inapplicable where
the plaintiff presents direct evidence of discrimination." Trans
World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct.
613, 83 L.Ed.2d 523 (1985) (citing Teamsters v. United States,
431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)).
Here, there is direct evidence that Merchant's eligibility for
treatment on February 9, 1995, depended upon his disability
status. Moreover, there is direct evidence that Kring asked
Merchant to submit to an HIV test although he did not routinely
request others to do so. In light of such direct evidence, we
hold that Merchant is not required to
establish pretext. Moreover, assuming that the evidence of
discrimination is inferential and not direct, there is sufficient
evidence of pretext to deny summary judgment. Merchant's expert
medical evidence rebuts Dr. Kring's expert medical evidence and
demonstrates pretext. Kring's motion for summary judgment on both
claims will be denied.
IT IS FURTHER ORDERED that defendant's motion (doc. no. 70) for
protective order be and hereby is denied.
IT IS FURTHER ORDERED that defendant's motion (doc. no. 71) for
sanctions be and hereby is denied.