Doe v. Kohn Nast & Graf, PC

• Decision Date: 02 September 1994
• Docket Number: Civ. A. No: 93-4510.
• Citation: 862 F. Supp. 1310
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: John DOE, Esquire (Pseudonym for an attorney), Plaintiff and Equal Employment Opportunity Commission, Plaintiff-Intervenor v. KOHN NAST & GRAF, P.C. d/b/a Kohn Klein Nast & Graf, P.C. and Kohn Savett Klein & Graf, P.C., Harold E. Kohn, and Steven Asher, Defendants.

862 F. Supp. 1310

John DOE, Esquire (Pseudonym for an attorney), Plaintiff and Equal Employment Opportunity Commission, Plaintiff-Intervenor v. KOHN NAST & GRAF, P.C. d/b/a Kohn Klein Nast & Graf, P.C. and Kohn Savett Klein & Graf, P.C., Harold E. Kohn, and Steven Asher, Defendants.

Civ. A. No: 93-4510.

United States District Court, E.D. Pennsylvania.

August 4, 1994.

As Amended September 2, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Alan B. Epstein, Jablon, Epstein and Wolf, Philadelphia, PA, for plaintiff and John Doe, Esquire, pro se.

Carmen R. Matos and Deborah M. Floyd, Mary M. Tiernan and Jose L. Perez, E.E.O.C., Philadelphia, PA, for intervenor-plaintiff.

J. Freedley Hunsicker, Jr., Patrick T. Ryan, Gregg R. Melinson, Drinker, Biddle & Reath; Donald J.P. Sweeney, Robyn F. Mc Grath, Sweeney, Sheehan & Spencer; and Barbara A. O'Connell, Philadelphia, PA, for defendants.

Ronald P. Schiller, Piper & Marbury, Philadelphia, PA, and Madeleine Schachter, CBS, New York City, for CBS, Inc., movant.

Carmen R. Matos, E.E.O.C., Philadelphia, PA, for Ellen Braffman, movant.

Carl A. Solano, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for respondent.

GAWTHROP, District Judge.

This case, before the court on defendants' motion for summary judgment, involves a lawyer infected with the Human Immunodeficiency Virus "HIV" who claims that his law firm fired him because of his infection.

Plaintiff's First Amended Complaint alleges that the defendants violated a number of federal and state statutes: Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ADA, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a; section 510 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1140 ERISA; the Pennsylvania Human Relations Act, 43 Pa.S. § 955 PHRA; and the Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260.5, Act of July 14, 1961, P.L. § 5. The complaint also alleges a cause of action for breach of contract, breach of the implied covenant of good faith and fair dealing, invasion of privacy, defamation, intentional infliction of emotional distress, and civil conspiracy.

Defendants¹ seek summary judgment on all claims. The standards for summary judgment are not unfamiliar. Under Federal Rule of Civil Procedure 56(c), summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." The inquiry for the court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). A party opposing summary judgment must marshal sufficient facts to show that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When deciding a motion for summary judgment in an employment discrimination case, the court must decide whether sufficient evidence exists to create a genuine issue of whether an employer intentionally discriminated. Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3rd Cir.1990).

The relationship between the plaintiff and the defendants began in July, 1991, when plaintiff was hired under contract to work for the Kohn firm. He spent most of his time working for Steven Asher, Esquire. At first, things seemed to be working out well. Mr. Asher gave the plaintiff a lot of responsibility and praised his work often. Six months after he arrived, the shareholders voted the plaintiff a $3,500 bonus, $1,000 more than he was expecting. 1992 apparently went well also. Although to terminate the plaintiff's contract, the firm was required to give him ninety days written notice by October 1, it did not do so.

Plaintiff alleges that the situation began to change after the fall of 1992 when he learned that he was HIV-infected. He had a high fever, lost weight, and developed a dry, scaly skin condition. He contacted several physicians. Some members of the firm's support staff wondered aloud whether he had acquired Acquired Immune Deficiency Syndrome AIDS.

On November 25, 1992, plaintiff received a letter from one of the physicians he had contacted, John Bartlett, M.D. The letter was written on stationery, the letterhead of which contained the words "Infectious Diseases" and "AIDS Services":

                 --------------------------------------------------------------------------------------------
                | Johns Hopkins                                                                              |
                | MEDICINE                                                                                   |
                |                                                                                            |
                | Division of Infectious Diseases                                                            |
                | address                                                                                  |
                |                                                                                            |
                | AIDS Services                                                                              |
                | address                                                                                  |
                |                                                                                            |
                |                                     November 25, 1992                                      |
                |                                                                                            |
                | Mr. Doe                                                                                  |
                | Kohn, Nast & Graf, P.C.                                                                    |
                | 1101 Market St.                                                                            |
                

                | Suite 2400                                                                                  |
                | Philadelphia, PA XXXXX-XXXX                                                                 |
                |                                                                                             |
                | Dear Mr. Doe,                                                                             |
                |                                                                                             |
                |  This is in response to your letter of November 13, 1992.                                   |
                |                                                                                             |
                |  I will be glad to see you either here in Baltimore or discuss your case by telephone as we |
                | did before. Just let me know how you want to proceed. There is no charge for telephone      |
                | consultation.                                                                               |
                |                                                                                             |
                |                             Sincerely,                                                      |
                |                             signature                                                     |
                |                             John G. Bartlett, M.D.                                          |
                |                             Chief, Division of Infectious Diseases                          |
                 ---------------------------------------------------------------------------------------------
                

Pl.'s Ex. 101. The plaintiff contends that just days after he received this letter, defendant Asher stopped assigning him work, stopped speaking with him, and avoided physical contact with him.

In the new year, the Kohn firm did not give the plaintiff a pay raise. On January 13, 1993, Mr. Asher told the plaintiff that he did not meet expectations, and that the firm had decided not to renew his contract for 1994. Pl.'s Ex. 108. Asher memorialized the conversation in a memo to the file, which read in pertinent part:

I spoke to Mr. Doe last week to discuss his status at the firm. I told him that after working with him for roughly eighteen months, I came to the conclusion that his work was substantially below the acceptable level of work required by the firm. I told him that other persons who worked with him apparently shared that evaluation.... I told him that because of our belief that he did not perform at a satisfactory level, and was not likely to progress at the firm, the firm had decided not to renew his contract for the year 1994. He would be permitted to remain with the firm until December 31, 1993. I told him that the problems related entirely to the quality of his written ... work, and not his working relationships with other attorneys and the staff, which appear to be satisfactory.

Pl.'s Ex. 112. Plaintiff disputes the accuracy of this account. Mr. Asher told at least one other member of the firm what was in the memo. The firm did not, however, at that time provide plaintiff with written notice.

Plaintiff alleges that at this juncture the defendants tried to nudge him out by assigning him work that was beneath his abilities, reassigning his secretary to another attorney, taking away his computer, and conducting meetings without including the plaintiff, among other minor and not-so-minor indignities. Plaintiff says he tried to bring his concerns to the attention of the firm management, but they did nothing. Finally, plaintiff contacted an attorney and, on March 8, 1993, sent a box of materials from Kohn, Nast & Graf in Philadelphia to his then-lawyer's office in Washington, D.C. The Kohn firm's administrator asked about the contents of the box. Plaintiff says he avoided a direct answer by jokingly asking "what do you think, a bomb or something?" Shortly after that, she warned the plaintiff that if he sued the firm Harold Kohn and Dianne Nast would blackball him in Philadelphia.

On March 11, 1993, the plaintiff travelled to Washington, D.C. Upon his return to the firm the next day, he found the contents of...