Santiago v. Temple University, Civ. A. No. 89-9144.

• Decision Date: 04 June 1990
• Docket Number: Civ. A. No. 89-9144.
• Court: U.S. District Court — Eastern District of Pennsylvania
• Parties: Felix SANTIAGO, Plaintiff, v. TEMPLE UNIVERSITY, Defendant.

739 F. Supp. 974

Felix SANTIAGO, Plaintiff, v. TEMPLE UNIVERSITY, Defendant.

Civ. A. No. 89-9144.

United States District Court, E.D. Pennsylvania.

June 4, 1990.

COPYRIGHT MATERIAL OMITTED

Andrew F. Erba, Community Legal Services, Inc., Philadelphia, Pa., for plaintiff.

Beth C. Koob, Philadelphia, Pa., for defendant.

MEMORANDUM

NEWCOMER, District Judge.

This action includes claims for alleged violations of the Federal Rehabilitation Act (Count I), due process (Count II), retaliatory conduct in violation of the First Amendment (Count III), retaliatory discharge under Pennsylvania law (Count IV), and intentional infliction of emotional distress (Count V).

Plaintiff's claims in Counts I and II are premised on the assumptions that he was "handicapped" as defined under the Federal Rehabilitation Act (the "Act"), that he was "otherwise qualified" under the Act, that he could be reasonably accommodated for his handicap, and that the plaintiff's proposed accommodation would not present an undue burden on Temple University (the "University"). In essence, plaintiff is claiming that the University had an obligation under the Act to tolerate and accommodate his frequent and unpredictable absences from work on the basis of his eyerelated injury.

Count III is premised upon the novel argument that the filing of a workmen's compensation claim is the legal equivalent of exercising free speech protected under the First Amendment to the United States Constitution.

Count IV, retaliatory discharge, is based upon the alleged relationship between plaintiff's filing of his workmen's compensation claim in 1985 and his ultimate discharge three years later.

Plaintiff's final claim in Count V is that termination from employment gives rise to liability for intentional infliction of emotional distress.

After reviewing the defendant's motion for summary judgment, and the response thereto, the Court finds that there exist no genuine issues of material fact. The Court further finds that the defendant is entitled to summary judgment as a matter of law on the basis of the following facts.

I. Factual Background.

Plaintiff was hired as an x-ray attendant on February 4, 1971. During the 1971-1972 year, plaintiff was warned about his record of lateness. In 1973, District Local Union 1199C became the representative of service workers, including plaintiff, by adoption of its contract with Temple. Under the contract in effect at the time of plaintiff's termination, the University was given exclusive management rights to develop and implement employee work rules. The relevant sections of the work rules provide for progressive discipline beginning with the eleventh absence incurred in any twelve month period, and culminates in termination at the sixteenth absence within the same twelve month period. While absences can be excused (prior permission or proof of illness) or unexcused (personal business or failure to call out), all absences are counted in determining whether excessive absences have occurred.

In 1974, plaintiff requested, and was granted, a transfer, assuming the position of operating room attendant in May of 1974. Plaintiff's work performance evaluation for March 1975 indicates that plaintiff continued exhibiting problems with lateness. In November 1976, plaintiff suffered a work related back injury requiring three weeks of worker's compensation. During the 1977-78 attendance period, plaintiff was absent fifteen days, and had returned to work with physician's notes on four occasions. According to plaintiff's deposition testimony, these notes were presented in accordance with what he understood was Temple University Hospital's policy.

For the period 1978-79, plaintiff was absent from work for twelve days, providing a physician's note upon return to work on only one occasion.

The attendance year 1982-83 indicates that plaintiff received disciplinary action following twelve absences, which occurred in a six month period.

The following year (1983-84), plaintiff received, and acknowledged by signature, a disciplinary warning for excessive absenteeism.

From September through November 1984, plaintiff requested and received a medical leave of absence for surgical repair of an inguinal hernia. On May 19, 1985, he suffered an eye injury during the course of employment, returning to work in the emergency room with medical clearance to perform full duties on October 27, 1986. Upon return to work, and for the remaining period of the 1986-87 year, plaintiff continued his pattern of attendance policy abuse by incurring another nineteen days absent from work, for which disciplinary action was instituted pursuant to the applicable work rules.

More than a year and a half later, and three years after he had filed his workmen's compensation claim, plaintiff was discharged from his position as an emergency room patient care attendant on May 26, 1988, for habitual absenteeism in accordance with the Temple University work rules. According to plaintiff's deposition testimony, at no time did he discuss with his supervisor upon returning to work the reasons for his absence (Defendant's Memorandum of Law in Support of Its Motion for Summary Judgment, hereafter "Defendant's Memorandum", at p. 5).

During the 1987-88 year, plaintiff's final year of employment, he was absent twenty-nine (29) times. Plaintiff testified that five absences were for unrelated personal reasons. According to plaintiff's testimony, he could not recall whether sixteen (16) of these absences were for reasons related to his eye or whether they were incurred for other reasons. (Defendant's Memorandum at p. 5). Plaintiff testified that at least up until the twenty-third absence, he could not recall whether he had visited a physician for reasons related to any eye inflammation, nor could he produce any documentation that any such visit had occurred. (Defendant's Memorandum at p. 5).

In accordance with plaintiff's collective bargaining agreement, plaintiff "grieved" his final suspension and ultimate termination, receiving grievance hearings with representation from the union for both disciplinary actions.

Following the affirmation of termination, the union declined to arbitrate the matter, and plaintiff's termination was therefore deemed to be final thirty (30) days following the termination grievance hearing decision.

II. Summary Judgment Standard.

A trial court may enter summary judgment if, after review of all evidentiary material in the record, there is no genuine issue as to any material facts, and the moving party is entitled to judgment as a matter of law. Long v. New York Life Insurance Co., 721 F.2d 118, 119 (3d Cir. 1983); Bank of America National Trust and Savings Association v. Hotel Rittenhouse Associates, 595 F.Supp. 800, 802 (E.D.Pa.1984). Where no reasonable resolution of the conflicting evidence and inferences therefrom, when viewed in a light most favorable to the nonmoving party, could result in a judgment for the nonmoving party, the moving party is entitled to summary judgment. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 883 (3d Cir.), cert. denied 454 U.S. 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); Vines v. Howard, 676 F.Supp. 608, 610 (E.D.Pa.1987).

The moving party must initially show an absence of a genuine issue concerning any material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Childers v. Joseph, 842 F.2d 689, 694 (3d Cir.1988). The moving party discharges this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; Vines, 676 F.Supp. at 610. Once the moving party satisfies this burden, the burden then shifts to the nonmoving party, who must go beyond his pleadings and designate specific facts by the use of affidavits, depositions, admissions and answers to interrogatories showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Moreover, Fed.R. Civ.P. 56 mandates that when the nonmoving party bears the burden of proof it must "make a showing sufficient to establish every element essential to that party's case." Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir.1987) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. at 2552).

III. Discussion.

A. Count I Must Be Dismissed Because the Rehabilitation Act Does Not Apply To, Or Provide Relief As Sought, By Plaintiff.

1. Plaintiff is not a handicapped person as defined by 29 U.S.C. § 706 and therefore is not entitled to its protection.

The Court finds that, as a matter of law, the partial vision loss pled in plaintiff's complaint does not entitle him to protection as a "handicapped" person under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. (the "Act"). The Act was enacted by Congress in order to permit persons with handicaps, who could otherwise meet valid job criteria, to have access to the workplace available to non-handicapped employees, and to prohibit employment discrimination against such persons on the basis of that handicap. By providing reasonable accommodations to assist the handicapped employee to meet job criteria, the handicapped individual is thereby able to join the workforce and engage in productive employment alongside fellow workers.

The Act defines a handicapped person in relevant part as "any person who has a physical ... impairment which substantially limits one or more of such person's major life activities." 29 U.S.C. § 706(8)(B). A handicap, therefore, is clearly demonstrable in the absence of certain senses, i.e. the loss of hearing or sight. With augmentation or other visual cues, the deaf employee who is otherwise qualified to perform the tasks of the job can do so in a manner similar to other non-handicapped employees filling like positions. Through the conversion of visual materials into auditory ones, the otherwise...