IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

RICHARD KECK, : 

 Plaintiff, : 

 :

 vs. : No. 02-CV-4071 

 :

PPL ELECTRIC UTILITIES : 

CORPORATION, : 

 Defendant : 

PLAINTIFF’S BRIEF IN OPPOSITION TO 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

HISTORY OF THE CASE

a) Procedural History

Plaintiff filed a Complaint against his former employer, PPL, Inc. under the 

Americans With Disabilities Act, 42 U.S.C. §12101 et seq. Defendant filed an Answer. 

Thereafter, the parties filed a Joint Stipulation of Facts. Cross-Motions for Summary 

Judgment are now filed pursuant to Order of March 24, 2003. This brief is in opposition 

to Defendant’s Motion for Summary Judgment. 

b) Statement of Facts

Plaintiff offered a detailed Statement of Facts in Plaintiff’s Brief In Support of 

Plaintiff’s Motion for Summary Judgment. Plaintiff incorporates said statement herein. 

For purposes of responding to Defendant’s Motion for Summary Judgment, 

however, Plaintiff notes that Defendant stipulated that it took adverse job action against 

Plaintiff solely because he was returning from a “medical disability leave”: 

“20. On or about July 26, 2001, plaintiff received a letter from the 

PMA Insurance Group indicating that his 24 months of paid leave 

would end September 24, 2001. 

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Case 2:02-cv-04071-BMS Document 14 Filed 05/08/2003 Page 1 of 9
21. On August 22, 2001, Plaintiff wrote to Sproesser indicating his 

plan to return to work September 24, 2001. The letter stated: 

 

In accordance with Exhibit ‘L’, Section I, Paragraph D, subparagraph 2 of the Current Labor Agreement between PPL, Inc. and 

IBEW Local Union 1600, please be informed of my medical release 

to return to work... 

The letter also requested that Plaintiff’s name be included in PPL’s 

Voluntary Retirement List. 

22. Following receipt of Plaintiff’s August 22, 2001 letter, 

Sproesser contacted Andrew Megna (“Megna”), PPL Labor 

Relations Administrator, to determine how Plaintiff’s return to work 

should be handled under the CBA. 

23. Megna consulted with his supervisor, R. William Murray, 

PPL’s Manager of Union Relations, as well as others in the PPL 

Labor Relations group. It was the collective position of the PPL 

Labor Relations Group that CBA Exh. L, Par. 2D, governed Keck’s 

return to work and that CBA Article X did not apply. Megna 

communicated this information to Sproesser.” 

 

Joint Stipulated Facts Nos. 20-23. 

The parties also stipulated that Plaintiff requested leave to retire because of “job 

displacement,” and Defendant accepted the offer of resignation, but did not give him the 

benefits of being “displaced” because he came off of a medical disability: 

“31. On October 7, 2001, Plaintiff submitted to PPL a letter 

indicating his intent to retire effective November 1, 2001, and he did 

so. (A copy of this letter is attached as Exhibit E.)” 

**** 

“Ms. Sandi Hausman 

Employee Benefits Representative 

PPL, Inc. GENN2 

2 North 9th St. 

Allentown, PA 18101 

Re: Retirement 

Please be informed that due to job elimination, I request to retire 

from PPL, Inc. effective November 1, 2001. 

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Case 2:02-cv-04071-BMS Document 14 Filed 05/08/2003 Page 2 of 9
 Respectfully,

 Richard W. Keck 

 Employee No. E41901 

 Designer Draftsman-Civil/Structural” 

 

 Exhibit E

*** 

32. Plaintiff received the standard retirement benefits available to 

PPL employees, but he did not receive the enhanced retirement 

benefits available to employees over age 55 who elect to retire upon 

being displaced, as provided for in CBA Art. X.” 

On these facts, Defendant seeks summary judgment solely because Plaintiff failed 

to file a grievance under the existing collective bargaining agreement. This brief in 

opposition to Defendant’s Motion for Summary Judgment follows. 

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Case 2:02-cv-04071-BMS Document 14 Filed 05/08/2003 Page 3 of 9
ARGUMENT

I. WHETHER OR NOT THE SUPREME COURT OF THE UNITED STATES IN 

Wright v. Univ. Maritime Service Corp. supra EXPLICITLY REJECTED THE 

ARGUMENT THAT FAILURE TO GRIEVE UNDER A CBA PREEMPTS AN 

EMPLOYEE'S RIGHT TO A JUDICIAL FORUM UNDER ADA?

1. Plaintiff has alleged a separate federal statutory basis for this cause of 

action. In reading the Defendant’s brief, it appears that Defendant believes that Plaintiff 

is pursuing a breach of contract claim under Section 301(a) of the LMRA, 29 U.S.C. 

§185(a). This is NOT a breach of contract claim. This is an Americans With Disabilities 

Act claim under 42 U.S.C. §12101 et seq. [hereinafter “ADA”]. See, jurisdictional 

paragraph of Plaintiff’s Complaint. In addition, Plaintiff timely filed the claim with the 

EEOC, and received the requisite Right to Sue letter. See, Paragraph 37 of Joint 

Stipulated Facts. Hence, the jurisdictional prerequisites to a claim under ADA have been 

met.

2. The Union’s commitment to arbitrate under the contract does not pre-empt 

individual’s right to sue under ADA. In Wright v. Univ. Maritime Service Corp. 525 

U.S. 70, 142 L. Ed 2d 361, 119 S. Ct. 391 (1998), the Supreme Court of the Untied States 

explicitly addressed the issue of a collective bargaining agreement’s commitment to 

arbitrate as pre-empting the individual’s right to sue. There, the Supreme Court looked at 

the specifics of the CBA: 

- a general agreement to arbitrate 

“...all matters affecting wages, hours and other terms and 

conditions of employment...” 

525 U.S. at 73, 142 L ed 2d at 366-367 

- a specific contract term that 

“...no provision or part of this agreement shall be violation of 

any Federal or State Law.” 

525 U.S. at 73, 142 L ed 2d at 367. 

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Despite the clear mandate of the contract, and the Federal policy favoring arbitration, the 

Supreme Court of the United States held that “pre-emptive” did not apply to civil rights 

claim and the Union did not waive the employee’s right to sue under the ADA: 

“Our conclusion that a union waiver of employee rights to a federal 

judicial forum for employment-discrimination claims must be clear 

and unmistakable means that, absent a clear waiver, it is not 

“appropriate,” within the meaning of this provision of the ADA, to 

find an agreement to arbitrate.” 

525 U.S. at 82, 142 L Ed 2d at 372 

This holding was consistent with a long-standing precedent in Alexander v. GardnerDenver Co. 415 U.S. 36, 39 L Ed 2d 147, 94 S.Ct. 1011 (1974) which held that civil 

rights claims – and the availability of the Federal courts for reconsideration – cannot be 

pre-empted by the availability of a grievance arbitration process, even if first utilized by 

the employee. See. also, EEOC v. Waffle House, 534 U.S. 279, 151 L.Ed.2d 755, 122 

S.Ct. 754 (2002). This approach has been followed in this court in Tice v. Ctr. Area

Transp. Auth. 247 F 3d 506, 519 (3rd Cir, PA 2001); Assicurazioni General, SPA v.

Clover 195 F 3d 161, 166 (3rd Cir., 1999); and Durham Life Ins. Co. v. Evans 166 F 3d 

139, 159 (3rd Cir, 1999). See, also, Underwood v. Chef Fransico 200 F. Supp. 2d 475, 

479 (ED, Pa, 2002); Osuala v. County College of Phila 2000 U.S. Dist. Lexis 11609 (ED, 

Pa, 2000); Schumacher v. Souderton Area School Dt. 2000 U.S. Dist. Lexis 563 (ED, PA, 

2000); Burgess Steel Prods. Corp. v. Iron Workers 1999 U.S. Dist. Lexis (D, NJ 1999). 

Absent special language in the collective bargaining agreement, the Courts have 

almost uniformly held that an individual’s federal civil rights claim cannot be subject to 

the defense of pre-emption for failure to arbitrate under the grievance arbitration 

mechanism of a collective bargaining agreement because the individual’s constitutional 

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rights are paramount to an implied waiver of a union-management collective bargaining 

agreement. See, also, Kennedy vs. Superior Printing Co., 215 F.3d 650, (6th Cir. 2000); 

martin vs. Barnesville Exempted Village Sch. Dist. Bd. of Educ., 209 F.3d 931, (6th Cir. 

2000); Hunter vs. Earthgrains Co. Bakery, 281 F.3d 144, (4th Cir. 2002); Fayer v. Town

of Middlebury, 258 F.3d 117, (2d Cir. 2001); EEOC Union Independiente De La 

Autoridad De Acueductos Y Alcantarilados De P.R., 279 F.3d 49, (1st Cir. 2002); Quint

v. A.E.Staley Mfg. Co., 172 F.3d 1, (1st Cir. 1999); Rosenberg v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 163 F.3d 53, (1st Cir. 1998); Rosenberg v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 170 F.3d 1, (1st Cir. 1999); Pender v. Dist. Council 37 AFSCME, 

223 F.Supp. 2d 534, 540, (S.D.N.Y. 2002); NYP Holdings, Inc. v. Newspaper & Mail 

Deliverers’ Union of N.Y. & Vicinity, 2002 U.S. Dist. Lexis 13151, (S.D.N.Y. 2002); 

Scheiner v. N.Y. City Health & Hosps. Corp. 152 F. Supp. 2d 487, (S.D.N.Y. 2001); 

Fowler v. Transit Supervisors Org., 2000 U.S. Dist. Lexis 17452, (S.D.N.Y. 2000); 

Clarke v. UFI, Inc., 98 F.Supp. 2d 320, (E.D.N.Y. 2000); Rogers v. New York Univ., 

1999 U.S. Dist. Lexis 14278, (S.D.N.Y. 1999); Litaker v. Lehman Bros. Holdings, 1999 

U.S. Dist. Lexis 12581, (S.D.N.Y. 1999); Van-Go Transp. Co. v. New York City Bd. of

Educ., 53 F.Supp. 2d 278, (E.D.N.Y. 1999); Martinez v. United Techs. Corp., 50 F.Supp. 

2d 130, (D. Conn. 1999); Hart v. Canadian Imperial Bank of Commerce, 43 F.Supp. 2d 

395, (S.D.N.Y. 1999); Prince v. Coca-Cola Bottling Co., 37 F.Supp. 2d 289, (S.D.N.Y. 

1999); Beason v. United Techs. Corp., 37 F.Supp. 2d 127 (D. Conn. 1999); Curtis v.

Airborne Freight Corp., 1998 U.S. Dist. Lexis 19636, (S.D.N.Y. 1998); Phillips v. Cigna

Invs., 27 F.Supp. 2d 345, (D. Conn. 1998); Rowles v. Automated Prod. Sys., 1999 U.S. 

Dist. Lexis 21605, (M.D. Pa. 1999); Charles v. Virgin Islands Serv. Co., 1999 U.S. Dist. 

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Lexis 2007, (D. VI, 1999); Safrit v. Cone Mills Corp., 248 F.3d 306, (4th Cir. 2001); 

Robinson v. Healthtex, Inc., 2000 U.S. App. Lexis 11961, (4th Cir. 2000); Brown v. ABF

Freight Sys. Inc., 183 F.3d 319, (4th Cir. 1999); Carson v. Giant Food, Inc., 175 F.3d 325, 

(4th Cir. 1999); Local 1422, Int’l Longshoremen’s Ass’n v. South Carolina Stevedores 

Ass’n, 170 F.3d 407, (4th Cir. 1999); Bedwell v. Mack Trucks Inc., 1999 U.S. App. Lexis 

2847, (4th Cir. 1999); Harris v. GM Powertrain, 1999 U.S. App. Lexis 309, (4th Cir. 

1999); Birch v. Pepsi Bottling Group, Inc., 207 F.Supp. 2d 376, (D. Md. 2002); WinstonSalem Mailers Union No. 133 v. Media Gen. Operations, Inc., (M.D.N.C. 2001); Safrit v.

Cone Mills, 1999 U.S. Dist. Lexis 18985, (M.D.N.C. 1999); Manns v. Fieldcrest Cannon,

Inc., 1999 U.S. Dist. Lexis 21872, (W.D. Va. 1999); Horton v. Norfolk Southern Corp., 

102 F.Supp. 2d 330, (M.D.N.C. 1999); Pichon v. Murphy, USA Inc., 2001 U.S. Dist. 

Lexis 7379, (E.D. La. 2001); Paris v. Dallas Airmotive, Inc., 130 F.Supp. 2d 844, (N.D. 

Tex. 2001); Marsh v. First USA Bank, N.A., 103 F.Supp. 2d 909, (N.D. Tex. 2000); 

Jupiter v. BellSouth Telecomms., Inc., 1999 U.S. Dist. Lexis 17431, (E.D. La. 1999); and 

Douglas v. Timex Corp., 1998 U.S. Dist. Lexis 23390, (S.D. Tex. 1998). See, also, 

Terrazas v. Medlantic Healthcare Group, 45 F.Supp. 2d 46 (DC, DC. 1999), copy 

attached hereto as Exhibit A; Collins v. Uniroyal, 71 F.Supp. 2d 909 (DC , ND. Ind., 

1999), copy attached as Exhibit B; and Nyhart v. UAW International, 170 F.Supp. 2d 

1135 (DC, Kan. 2001), copy attached as Exhibit C. Compare, also, Routes v.

Henderson, 58 F.Supp. 2d 959, (S.D. Ind. 1999); Fellows v. Board of Trustees of 

Welborn Clinic, 63 F.Supp. 2d 942 (S.D. Ind. 1998); Marathon Asland Petroleum, LLC. 

v. Int'l Bhd. of Teamsters Local No. 120, 300 F.3d 945, (8th Cir. 2002);Twentieth

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Century-Fox Film Corp. v. Beckum, 36 Fed. Appx. 271, 2002 U.S. App LEXIS 9952 

(2002); Deck v. American Haw. Cruises, Inc., 51 F.Supp 2d 1057, (D. Haw. 1999). 

Even, assuming, arguendo, that there was the requisite special language in the 

collective bargaining agreement explicitly requiring that the ADA claim be arbitrated, it 

would be an open question before the Supreme Court of the United States as to whether 

or not that waiver of the employee’s right to a judicial forum would be appropriate. See, 

Wright v. Universal Maritime Service Corp., 525 U.S. at 82, 142, L Ed 2d at 372, 119 S. 

Ct. at 391: 

“We take no position, however, on the effect of this promise in cases 

where a CBA clearly encompasses employment-discrimination 

claims, or in areas outside collective bargaining.” 

Here, the special language is not present. Even if it were, it is not automatic that 

the Supreme Court of the United States would apply a “pre-emption” argument to an 

ADA claim for failure to exhaust collective bargaining mechanism.

3. CBA Exhibit L versus CBA Article X. As the parties have stipulated, the 

employer knows that it had a choice: apply Article X and give Plaintiff the enhanced 

pension OR apply Exhibit L (employee off of medical leave) and deny him the enhanced 

pension. The Defendant elected the approach that gave the disabled employee less 

benefits. 

Even if this was not an ADA case – even if this was a case which “pre-emption” 

might properly apply, the doctrine of exhaustion of CBA grievance mechanism does not 

apply when the question involves the intention and motives of the employer. Lingle v.

Norge, Division of Magic Chef, 486 U.S. 399, 100 L ed 2d 410, 108 S. Ct. 1877 (1988). 

There, the employer argued unsuccessfully that the employee’s retaliation claim for 

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9 

seeking workers’ compensation benefits was intertwined with an interpretation of the 

CBA which needed arbitration. The Supreme Court of the United States disagreed, point 

out that the issue really involved a question of the intention and motivation of the 

employer in using the CBA in the way that it did, not an interpretation of the CBA. That 

is equally true here. The employer concedes that, if the employer was treated under 

Article X of the CBA, he would have received the enhanced pension. The employer 

concedes that it intentionally elected to treat him differently because he was coming off 

of disability leave. Hence, the election to treat a disabled employee differently solely 

because of his disability status concedes the discrimination and takes the employer 

outside of the protection of “pre-emption” even if it otherwise would have applied. 

Lingle v. Norge, Division of Magic Chef, supra. 

CONCLUSION

 For the foregoing reasons, Defendant’s Motion for Summary Judgment ought to 

be denied, and judgment entered on Plaintiff’s Motion for Summary Judgment. 

 Orloski, Hinga, Pandaleon & Orloski 

 

 Richard J. Orloski 

 Attorney for Plaintiff 

 Attorney ID No. 09857 

 111 N. Cedar Crest Blvd. 

 Allentown, PA 18104 

 610-433-2363 

 

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