later, on March 11, 1997. Thus, at least one alleged act of
non-accommodation falls within the statute of limitations. The
continuing violation theory is appropriate where the conduct in
question constitutes a continuous pattern, as opposed to
unrelated, isolated incidents. See Rush at 483. In this case,
the non-accommodation alleged by Plaintiff constitutes a
"continuous pattern" of failing to respond to Plaintiff's
requests that his disability be accommodated. Accordingly, the
continuing violation theory is appropriate in this case.
III. Prospective Damages under the ADA
Plaintiff argues that he is eligible for damages under the ADA
for the period after he became totally disabled in June, 1997.
Defendants disagree, pointing to the Third Circuit decision
McNemar v. The Disney Store, Inc., 91 F.3d 610 (3d Cir. 1996).
In McNemar, the Third Circuit held that "a person unable to
work is not intended to be, and is not, covered by the ADA."
McNemar at 618. Plaintiff, in turn, points to a more recent
Third Circuit decision, which allows one who is completely
disabled to sue his former employer on the basis of
discrimination regarding disability benefits. See Ford v.
Schering-Plough Corporation, 145 F.3d 601, 608 (3d Cir. 1998).
The Ford decision is not directly on point, as the Plaintiff in
the instant case is not alleging discrimination in the
administration of disability benefits. But it does begin to
illustrate the current status of the McNemar decision: it is
controversial and its status is in doubt. In Krouse v. American
Sterilizer Co., 126 F.3d 494, 498 (3rd Cir. 1997), the Third
Circuit stated that although McNemar remains the law of this
Circuit, it "has been the object of considerable criticism. Some
of this criticism might be well-founded." Krouse at 502-03.
Further, the Krouse panel expressed "concern that district
courts in this circuit are misapplying McNemar without first
considering the unique facts of that case." Id. at 503 n. 5.
Judge Becker has even apparently stated that he thinks McNemar
is wrongly decided, and should be reversed when the Third Circuit
is presented with the opportunity en banc. See Id. at 503 n. 4.
Nevertheless, shortly after the filing of the parties memoranda
on this Motion, this issue was clarified by the Supreme Court in
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S.Ct.
1597, 143 L.Ed.2d 966 (1999). After Policy Mgmt. Sys. Corp., a
Plaintiff must explain how her claim in a benefits application
that she is too disabled to work "is consistent with her ADA
claim that she could perform the essential functions of her
previous job, at least with reasonable accommodation." Motley v.
New Jersey State Police, 196 F.3d 160, 164 (3rd Cir. 1999)
(citation omitted). The Supreme Court still maintained that the
ADA only covers one "who, with or without reasonable
accommodation, can perform the essential functions of her job."
Id. (citation omitted). Thus, in the instant case, where the
Plaintiff has never claimed that he is currently able to work
with a reasonable accommodation, he is unable to recover
prospective damages under the ADA for the period after he became
When Plaintiff became totally disabled is also a point of
dispute. Defendants' motion asserts January 21, 1997, citing to
Plaintiff's application for social security benefits. Plaintiff
argues that he worked in a limited capacity until June, 1997, and
points out that Defendants acknowledge this in their Motion for
Summary Judgment at 3. Both parties thus appear to agree that
Plaintiff did not become totally disabled until June, 1997.
Because neither party specifies a specific date within that
month, the Court will choose June 15, 1997.
IV. Physical Injuries under the ADA
Plaintiff's Complaint seeks, in its prayer for relief, that
"Plaintiff be awarded actual damages, including damages for
aggravation of his disability and other physical
injuries inflicted upon him by Defendants, as well as an award to
compensate him for his pain, suffering, and humiliation caused by
Defendants' actions." Complaint, Prayer for Relief D. In
Defendants Motion for Summary Judgment, Defendants argue that
Plaintiff cannot recover for such "physical injuries" under the
ADA. In support of their argument Defendants do not cite to any
statute, nor to any case from within this Circuit. They cite to a
Kansas case applying a different workers compensation law, and to
several other off-point cases from outside of this Circuit. They
also repeat their point that Plaintiff cannot recover under the
ADA for the period after he became totally disabled. However,
this does not address the issue of whether he can recover for
physical damages that occurred when he was not totally disabled
and still under the ambit of the ADA. In short, Defendants have
failed to provide this Court with a legally supported argument
that Plaintiff cannot recover for physical damages under his ADA
The Court has done its own research on the issue, and has not
found any statutory or caselaw basis for precluding Plaintiff
from recovering for physical damages under his ADA claim. If
Defendants develop stronger legal support for their argument,
they may repeat it at trial.
V. Negligent, Reckless, or Intentional Failure to Provide Safe
Plaintiff's Fourth Cause of Action asserts that Defendants
negligently, recklessly, or intentionally failed to provide a
safe workplace. Defendants argue that this claim is barred by the
Pennsylvania Workers' Compensation Act ("PWCA"), 77 P.S. § 1, et
seq. Under the PWCA, the workers compensation system is "the
exclusive forum for redress of injuries in any way related to the
workplace." Kuney v. PMA Ins. Co., 525 Pa. 171, 176,
578 A.2d 1285 (1990). However, Plaintiff argues that his claim falls under
the "personal animus" exception to the PWCA, which allows an
employee to recover under the PWCA for "an injury caused by an
act of a third person intended to injure the employee because of
reasons personal to him, and not directed against him as an
employe [sic] or because of his employment." Kohler v. McCrory
Stores, 532 Pa. 130, 615 A.2d 27 (1992).*fn1
In support of his argument, Plaintiff cites to his own
deposition, in which he states that "there's a possibility" that
two employees smoked around him to intentionally injure him.
Plaintiff's Reply at 26. At the outset, the Court does not find
Plaintiff's reliance upon his own deposition, in which he states
that there is "a possibility" that the these employees intended
to injure him, to constitute sufficient factual basis to support
his claim. But nevertheless, based on Plaintiff's other
deposition testimony, it is clear that even if his "possibility"
were to turn out to be fact, his recovery under a negligence
claim would be precluded by the PWCA. Plaintiff's personal animus
argument is that two of his co-workers intentionally smoked near
him to injure him. In Plaintiff's deposition he stated that "I do
know there were certain instances that occurred within the
company that it would have been in their best interests had I not
been employed by the company any longer." Plaintiff's February 5,
1998 Deposition at 90. The "certain instances" to which Plaintiff
refers are his reporting one employee for theft from the company
(the employee was fired, then eventually rehired), and his being
"very vocal" about another employee's "theft ring." Id. at 93.
The "possibility" of animosity between Plaintiff and these two
employees is thus rooted in Plaintiff's involvement in one
getting fired for theft, and his willingness to be "vocal" about
the other's theft. "Where the animosity between the third party
and the injured employee is developed because of work-related
disputes, the animosity is developed because of the employment,
and the injured
employee's remedy is exclusively under the Workmen's Compensation
Act." Hammerstein v. Lindsay, 440 Pa. Super. 350, 655 A.2d 597,
601 (1995). See also Durham Life Ins. Co. v. Evans,
166 F.3d 139, 160 n. 16 (3rd Cir. 1999) (stating that "[w]e understand
Pennsylvania law to extend worker's compensation preemption to
personal animosity that develops from work-related events.") The
animosity in this case, if it exists, would have developed
because of a work-related dispute, and thus Plaintiff's exclusive
remedy is under the Workmen's Compensation Act.
VI. Plaintiff's PHRA Claims
For the reasons discussed above in Section V, Plaintiff's PHRA
claim is precluded by the PWCA. See Shaffer v. Procter & Gamble,
Vocational Rehabilitation Services of Scranton, Inc.,
604 A.2d 289, 291 (1992) (stating that "the PHRA covers only non-job
related handicaps or disabilities, that is, those which do not
substantially interfere with the ability to perform the essential
functions of the employment") (citations omitted).
VII. Plaintiff's 42 U.S.C. § 1981/1981a Claim
Plaintiff's Complaint asserts a claim under "42 U.S.C. § 1981,"
when Plaintiff in fact intended to assert a claim under
42 U.S.C. § 1981a, a distinctly different claim. The Court originally
denied Defendants' Motion to Dismiss on this basis, granting
Plaintiff leave to amend his Complaint to fix the error.
Plaintiff has not done so, so Defendants again argue that the
claim should be dismissed. Plaintiff responds that Defendants
have not been prejudiced by this error, and that they will submit
an amended Complaint. To date, they have not done so.
Nevertheless, the Court agrees that Defendants have not been
prejudiced by this typographical error. The Court accordingly
grants Plaintiff ten (10) days in which to file an amended
complaint fixing this error. If Plaintiff fails to do so, his
Third Cause of Action will be dismissed.
VIII. Defendant IREX Corporation
Plaintiff submitted a second Response to Defendants' Motion for
Summary Judgment protesting that its negligence claims against
Defendant IREX Corporation ("IREX") should not be dismissed even
if they are dismissed against Defendant Specialty Products and
Insulation Co. ("SPI"). This is the first filing in which
Plaintiff distinguished between the two Defendants, other than in
his identification of the parties in his original Complaint.
Defendants argue in reply that Plaintiff's Complaint does not
correctly plead a negligence claim directly against IREX. For
example, Defendants point out that Plaintiff did not identify a
duty owed to Plaintiff by Defendant IREX.
The Court does not feel that it has received sufficient legal
or factual arguments at this time to determine that IREX is an
inappropriate defendant in this case. But, Plaintiff has given
the Court no reason to treat IREX differently from SPI. Thus,
where the Court has determined above that Plaintiff's causes of
action must be limited or dismissed, those determinations apply
equally to both Defendants.
Plaintiff has complied with all appropriate statutes of
limitations in this case. The appropriate statute of limitations
for his administrative claim is 300-days, and further the
continuing violation theory is appropriate in this case.
Plaintiff is not entitled to recover prospective damages under
the ADA for the period after he became totally disabled.
Plaintiff is, however, able to recover damages for physical
injuries incurred while he was still under the ambit of the ADA.
Plaintiff's Second and Fourth Causes of Action, under the PHRA
and for negligence, respectively, are unable to survive
Defendants' Motion for Summary Judgment. Finally, Plaintiff is
ordered to amend his Complaint with
ten (10) days to clarify that his Third Cause of Action comes
under 42 U.S.C. § 1981a, rather than 42 U.S.C. § 1981.
An appropriate Order follows.
AND NOW, this 17th day of February, 2000, upon consideration of
Defendants' Motion for Summary Judgment, as well as the parties'
responses thereto, and in accordance with the foregoing
Memorandum, it is hereby ORDERED that the Motion is GRANTED in
part and DENIED in part, as follows:
1. Plaintiff is limited to recover under his First Cause of
Action only for damages incurred prior to June 15, 1997;
2. Summary judgment shall be ENTERED in favor of Defendant on
Plaintiff's Second Cause of Action. Plaintiff's Second Cause of
Action is accordingly DISMISSED;
3. Summary judgment shall be ENTERED in favor of Defendant on
Plaintiff's Fourth Cause of Action. Plaintiff's Fourth Cause of
Action is accordingly DISMISSED; and
4. Plaintiff is ordered to amend the Third Cause of Action in
his Complaint, to reflect the statute under which he intends to
proceed, within ten (10) days of the entry of this Order.