1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Michael J. Liberati :

Plaintiff, : Civil Action No.: 2:05-cv-1661

v. :

:

BRT, INC. :

and :

Harold Mast, President :

BRT, INC. :

Defendants. :

PLAINTIFF’SOPPOSITIONTODEFENDANTSMOTIONFOR

SUMMARY JUDGMENT & INCORPORATED MEMORANDUM OF LAW

Michael J. Liberati has initiated this lawsuit in order to be compensated for the

discriminatory conduct of his former employer, BRT, Inc. and the President of BRT, Inc., Harold

Mast. Mr. Liberati deserves to be compensated by a jury for the illegal conduct engaged in by

the defendants which is in violation of Title I and Title V of the Americans with Disabilities Act

of 1990 (ADA), as codified, 42 U.S.C. § 12101 et seq., as amended by the Civil Rights Act of

1991, 42 U.S.C. § 1981 et seq., 42 U.S.C. § 1981a et seq. and 42 U.S.C. § 1988 et seq., which

incorporates by reference Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.;

the Pennsylvania Human Relations Act, as amended, Section 5, 43 P.S. § 951 et seq. (PHRA)

and state/federal law governing intentional/negligent infliction of emotional distress.

I. SUMMARY JUDGMENT STANDARD.

Summary Judgment is disfavored in employment cases, Jalil v. Avdel Corp., 873 F.2d

701, 707 (3rd Cir. 1989). A plaintiff must be allowed to establish illegal discrimination in an

employment case and special caution should be exercised in deciding whether to grant summary

judgment to an employer when its intent is at issue, Goosby v. Johnson & Johnson Medical, Inc.,

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228 F.3d 313, 321(3rd Cir. 2000). The existence of genuine issues of material facts requires that

summary judgment be denied, Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3rd Cir.

1999); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S.Ct. 1348 (1986).

The plaintiff concedes to the dismissal of Count II of his complaint: harassment/ hostile

work environment. For the reasons as set forth in this opposition, the plaintiff respectfully

requeststhatthiscourtdenythedefendants’motionforsummaryjudgmentwithregardtoCount

I –Discrimination and Failure to Provide Reasonable Accommodation; Count III –Retaliation;

Count IV –PHRA; and Count V –Intentional/Negligent Infliction of Emotional Distress.

II. STATEMENT OF FACTS.

The plaintiff, Michael J. Liberati, is a former employee of BRT, Inc. Defendant, BRT,

Inc., is a business/corporation, qualified to transact business in the Commonwealth of

Pennsylvania. Defendant, Harold Mast, President of BRT, Inc., is being sued individually

and/or in his official capacity as provided by the aiding and abetting provisions of the PHRA, see

Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 553 (3rd Cir. 1996).

The plaintiff was/is at all relevant times a qualified individual with a disability as

provided by the ADA and the PHRA. The plaintiff was diagnosed with depression and Attention

Deficit Hyperactivity Disorder (ADD and ADHA) in 2000, Ex. A, Dr. Block’sExpertReport.

ADD/ADHA is a lifelong disability that is a genetically based neurodevelopment disorder with

chronic neuropsychiatric sequellae and comorbidity with anxiety disorders, depression and

substanceuse/abuse.Theplaintiff’sdisabilitiessubstantially limit his ability to perform several

major life activities including concentrating and thinking normally, i.e. cognitive functioning, Id.

The plaintiff was employed by the defendant, BRT, INC., as a router/dispatcher from

July, 23, 2001 until December 16, 2002. The plaintiff was originally hired for the position of

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dispatcher, then shortly prior to his request for reasonable accommodation and his subsequent

discharge, his duties where expanded to include routing tasks, Ex. B, ¶ dep. at 90-91.

1 Routing

tasks require a high level of concentration and Mr. Liberati found the additional tasks to be

absolutely overwhelming, Ex. B, ¶ dep. at 94; Ex. C. By letter dated November 12, 2002 to

Harold Mast, the plaintiff informed his employer that he suffered from ADD and requested

reasonable accommodation after his duties were expanded so that he could have a quieter place

to work and concentrate, Ex. C, November 12, 2002.

2

In the November 12, 2002 letter, the plaintiff requested that he be permitted to perform

hisjobdutiesinanareaofthedefendants’officeswhereanydistractionscouldbeminimized,

Ex. C. The plaintiff also stated that he was open to any alternative accommodations that the

defendants could suggest in order to reasonably accommodate his disabilities, Id. The

defendants did not provide any reasonable accommodation to the plaintiff at any time after the

plaintiff made the formal request for reasonable accommodation, Ex. B, ¶ dep. at 13; Ex. D,

Thies dep. at 19-20. The defendants did not suggest or provide any alternative reasonable

accommodation to the plaintiff at any time after the plaintiff made the formal request for

reasonable accommodation, Id. The defendants never even spoke to the plaintiff about his

request for reasonable accommodation and they never requested any documentation from the

plaintiff or his physicians evidencing his disabilities, Id. The plaintiff’s reasonable

1 The Plaintiff testified that his routing duties were expanded shortly before he requested reasonable accommodation

on November 12, 2002, Ex. B, ¶ dep. at 90-91. The defendants, however, intimate that the plaintiff’sdutieswere

expanded to include routing much earlier than the plaintiff asserts, Defs. Mot. for SJ at 2. This fact is in dispute.

2 On November 6, 2002, the plaintiff was cited for not notifying Dan Robbins, his direct supervisor, that he would

be late since he had stayed late the night before, the plaintiff forgot to do so. Dan Robbins permitted the plaintiff to

come in late the next day if he had to stay late to finish his work if he notified him (Robbins) that he (plaintiff)

would be late. During a meeting with management concerning his tardiness on November 6, 2002, the plaintiff told

his supervisors that he was experiencing trouble finishing his work on time. Ex. B, ¶ dep. at 80, 90-92. Moreover,

on November 7, 2002, the plaintiff was cited for an incident that occurred with Vince Sciotti. There was a falling

out between the plaintiff and Mr. Sciotti because the plaintiff was told just to do the routing not the dispatching. Mr.

Sciotti felt that the plaintiff was not being a team player becauseMr.Sciottineededtheplaintiff’sassistancewith

answering the phones. During that meeting with management over the Sciotti incident, the plaintiff asked if he

could perform his duties in a different, quieter location, Ex. B, ¶ dep. at 93-95.

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accommodation request was not an undue hardship because the defendants had/have numbers of

areas where the plaintiff could perform his duties with limited distractions, Id.; Ex. D, Thies dep.

at 24. At all times, the defendants failed to participate in the interactive process to determine a

reasonableaccommodationfortheplaintiff’sdisabilities.

Sometime after the plaintiff submitted his request for reasonable accommodation via the

November 12, 2002 letter, Jan Thies3,HumanResourceManageratthetimeofplaintiff’s

employment, wrote a response to the letter which response was circulated among BRT, Inc.

management, Ex. G, Thies Memo; Ex. D, Thies dep. at 21.

4

Jan Thies testified that Harold Mast

gave him theplaintiff’slettera few days after he (Harold Mast) received the letter, Ex. D, Thies

dep. at 15-16. Jan Thies testified that Harold Mast said that he (Mast) contacted an attorney

abouttheplaintiff’sNovember12,2002letter,Id. Jan Thies stated in the Memo and reiterated at

his deposition that he did not believe that the plaintiff could perform the functions required of

routing without some type of special arrangements, Ex. G; Ex. D, Thies dep. at 61.

Subsequent to his engaging in protected activity by requesting reasonable

accommodation, the plaintiff was issued an unwarranted reprimand dated December 10, 2002

which instructed the plaintiffnottousetheapplicationsheappendedtothecompany’sBRAVO

computer operating system, Ex. E. The plaintiff testified that he started using his computer

applications without any dissent from management since approximately one-two months after his

employment began, Ex. B, ¶ dep. at 106-108. And, the plaintiff testified that other employees at

BRT,Inc.wereusingtheplaintiff’scomputerapplicationsduringhisemploymentwiththe

company, Id. The December 10, 2002 reprimand letter states that some of the plaintiff’s

computer applications were actually incorporated into the BRAVO operating system even

3

Jan Thies has since been promoted to the position of General Manager at BRT, Inc., Ex. D, Thies dep. at 7.

4 This Memo was never given to or viewed by the plaintiff until after the case was under investigation.

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though the letter instructs the plaintiff to cease using the applications. No one ever had a problem

withtheplaintiff’sapplicationsuntilafterhe asked for reasonable accommodation. The first

time the plaintiff was told not to utilize the applications was via the letter dated December 10,

2002, Ex. B, ¶ dep. at 107-108.

John Vanande is a general employee at BRT, Inc., Ex. H, Vanande dep. at 6. Mr.

Vanandetestifiedthatreceivedacallfrom theplaintiffpriortotheplaintiff’sdischargefrom

BRT, Inc., Ex. H, Vanande dep. at 10-11. Mr. Vanande testified that the plaintiff told him that

he (plaintiff) had ADD, Ex. H, Vanande dep. at 12. Mr. Vanande further testified that the

plaintiff was under the impression that Mr. Vanande also suffered from the same disability, Id.

Mr. Vanande testified that the plaintiff called him because if Mr. Vanande suffered from the

same disability maybe they could bond together and not be subject to discrimination and

discharge, Ex. H, Vanande dep. at 12, 15. Mr. Vanande testified that he has never been on any

medication for ADD and that he has not been diagnosed with ADD, Ex. H, Vanande dep. at 14-

15. Mr. Vanande did, however, testify that he was subjected to ridicule at BRT, Inc., Id. He

testified that he is unbalanced and that there is a rumor going around at BRT, Inc. that if John

(Vanande) is in a good mood then he is taking his medication and if John was in a bad mood, he

didn’ttakehismedication,Ex. H, Vanande dep. at 14. Mr. Vanande testified that he told Harold

Mast directly, the very next day, about the phone call involving the plaintiff and he testified that

the plaintiff was discharged a few days after he (Vanande) spoke with Harold Mast, Ex. H,

Vanande dep. at 17-18.

Jan Thies testified that he was told that there was an employee who disclosed to Harold

Mast that the plaintiff was accessing other employees’e-mails, Ex. D, Thies dep. at 18-19. Jan

Thiestestifiedthathewasinstructedtolookintotheplaintiff’se-mails based on that employee’s

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communications with Harold Mast, Id. The employee is now known to be John Vanande, Id.

However, Mr. Vanande testified that he did not discuss with Harold Mast anything about the

plaintiffandcomputersbecausehe(Vanande)didn’tknowthatmuchaboutcomputers, Id.; Ex.

H, Vanande dep. at 17-18. This false information that Mr. Vanande tipped Harold Mast about

theplaintiffaccessingothers’e-mails was communicated to Judge Strawbridge during the

mediation conference in this case, Ex. D, Thies dep. at 19.

On December 16, 2002, the plaintiff was informed that he was discharged from his

employment at BRT, Inc. by Wayne Lapp5, Terminal Manager; Dan Mast, Vice President; Jan

Thies, Human Resource Manager; and defendant, Harold Mast, President.

6

The plaintiff was

given a written discharge letter at time of his discharge, see Ex. F. Theplaintiff’sdischarge

occurred approximately one month after the plaintiff formally requested reasonable

accommodation and just a few days after he spoke with Mr. Vanande. The sole and/or

motivatingreasonfortheplaintiff’sdischargeisdisabilitydiscrimination and retaliation.

III. LEGAL ARGUMENT.

All of the issues raised by the defendants relatetotheplaintiff’sabilitytoestablisha

prima facie case of disability discrimination and disability retaliation with the exception of their

alleged defense of legitimate business reason for the adverse employment action of discharge.

The burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

applies to ADA claims. See Shaner v. Synthes, 204 F.3d 494, 500 (3rd Cir. 2000). 7

5 Mr. Lapp is no longer employed by BRT, Inc.

6

Jan Thies testified that Harold Mast normally plays a role in the decisions to discharge people and that in

November, 2002, Mr. Mast played a big role in personnel decisions at BRT, Inc., Ex. D, Thies dep. at 50-51.

7 The plaintiff must establish a prima facie case of discrimination and/or retaliation, then the burden shifts to the

defendant to articulate a non-discriminatory legitimate reason for the adverse employment action, then the burden

shifts back to the plaintiff to show by a preponderance of the evidence that the reason is pretextual. Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 Led.2d 207 (1981).

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A. DISABILITY DISCRIMINATION. 8

To establish a prima facie case of discrimination under the ADA, a plaintiff must show:

(1) that he is disabled within the meaning of the ADA; (2) he is otherwise qualified to perform

the essential functions of the job, with or without reasonable accommodations by the employer;

(3) he has suffered an adverse employment action as a result of the discrimination. An adverse

employment action includes failure to provide reasonable accommodation and termination. See

Williams v. Philadelphia Housing Authority Police Department, 380 F.3d 751 (3rd Cir. 2004);

Taylor v. Phoenixville School District, 184 F.3d 296, 306 (3rd Cir. 1999). A failure to make a

reasonable accommodation for a disabled and qualified employee constitutes disability

discrimination under the ADA, Id.

1. The Plaintiff Is A Qualified Individual With A Disability And His

Disabilities Substantially Affect His Cognitive Functioning.

9

A qualifiedindividualwithadisabilityisdefinedbytheADA asaperson“witha

disability who, with or without reasonable accommodation, can perform the essential functions

oftheemploymentpositionthatsuchindividualholdsordesires.” 42U.S.C.§12111(8).A

disability is defined by the ADA as (A) a physical or mental impairment that substantially limits

one or more of the major life activities of an individual; (B) a record of such impairment; or (C)

being regarded as having such an impairment. 42 U.S.C. § 12102(2)(A).

Several factors are to be considered in evaluating whether an individual is substantially

limited in a major life activity: (i) the nature and severity of the impairment; (ii) the duration or

8 “AnanalysisofanADAclaimappliesequallytoaPHRAclaim.”Taylor v. Phoenixville School District, 184 F.3d

296, 306 (3rd Cir. 1999), citing Kelly v. Drexel Univ., 94 F.3d 102, 105 (3rd Cir. 1996). So, for purposes of this brief,

the plaintiff will argue pursuant to the federal statutes. If the plaintiff’sclaims are sustained under the ADA, then

they must likewise be sustained pursuant to the PHRA.

9 The defendants have conceded that thinking and concentrating are major life activities, Defs. Mot. for SJ at 18,

citing Cambria, 2005 U.S. Dist. Lexis 13101 (E.D.Pa. 6/30/05). Moreover, the defendants admitted that the plaintiff

is qualified to perform the essential functions of the position for which he was hired at BRT, Inc. The defendants

asserted in their motion for summary judgment that Liberati did an excellent job as a router/dispatcher, Defs. Mot.

for SJ at 4, 25; Ex. I, Dan Mast dep. at 17. So, these issues are not in dispute.

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expected duration of the impairment; and (iii) the permanent or long term impact, or the expected

permanentorlongtermimpactoforresultingfromtheimpairment.”29C.F.R.§1630.2(j)(2).

The question of whether an individual is substantially limited in a major life activity is a question

of fact. See Gagliardo v. Connaught Lab., Inc., 311 F.3d 565, 569 (3rd Cir. 2002).

The United States Supreme Court has held in Sutton v. United Airlines, Inc., 527 U.S.

471 (1999), that when making a determination regarding whether a person is disabled within the

meaning of the ADA a court must look to whether the person’s disability is correctable through

medicationorothermeasures.“Ifapersonistakingmeasures to correct for, or mitigate, a

physical or mental impairment, the effects of those measures –both positive and negative –must

betakenintoaccountwhenjudgingwhetherthatpersonis‘substantiallylimited’inamajorlife

activity and thus disabledundertheAct.”Sutton, 119 S.Ct. at 2146. In Sutton, the court found

that the plaintiffs were not disabled because their vision was correctable to 20/20. “Thecentral

question, in light of Sutton ...iswhether[plaintiff’s]continuingimpairmentremained a

‘disability’undertheADAbyimposingsubstantiallimitationsevenwhiletreated.”Taylor, 184

F.3d 296, 308 (3rd Cir. 1999). In Taylor the court denied defendants’motionforsummary

judgment and found issues of fact relating to whether plaintiff continued to be substantially

limited even while taking lithium to control bipolar disorder.

ADHD, ADD and depression are disabilities within the meaning of the statutes. ADHD,

ADD and depression are classified psychiatric mental disorders and substantially limit an

individual’sabilitytoconcentrate,think,andfocusetc.likeamemberofthegeneralpublic.The

UnitedStatesSupremeCourthasheldthat“Whetherapersonhasa disability under the ADA is

anindividualizedinquiry.” Sutton, 527 U.S.471,483(1999).AnADAplaintiff“needsto

demonstratethattheimpairmentlimitsamajorlifeactivity.” Toyota Motor Manufacturing,

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Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002). So, it follows that one cannot be

precluded per se from demonstrating that any type of impairment limits a major life activity.

The Third Circuit noted in Fredrick L. v. Thomas, 557 F.2d 373, 375 (3rd Cir. 1977) that

learningdisabilitiesareprofoundandare“disordersinbasicpsychologicalprocesses.” More

recently, the Third Circuit has recognized attention deficit disorder as a disability in deciding a

case concerning what constitutes a protected individual within the meaning of the ADA. The

courtheldthat“Appellant[personwithADD]has,inaddition,alleged that the discrimination

occurred on the basis of a disability as understood under the Act. Also, the parties do not dispute

onappealthatappellantis“disabled”asthatterm isdefinedintheADA.” Menkowitz v.

Pottstown Memorial Medical Center, 154 F.3d 113(3rd 1999). In Gagliardo, 311 F.3d 565 (3rd

Cir. 2002), the plaintiff was permitted to show that the MS she suffered from caused her to be

substantially limited in the major life activities of concentrating and remembering. And, in

Taylor, 184 F.3d 296, 307 (3rd Cir. 1999),theCourtacceptedthat“thinkingisamajorlife

activity.”See also, Cambria v. Association of Flight Attendants, 2005 U.S. Dist. Lexis 13101

(E.D.Pa. 6/30/05) (same).

10

Overall, the evidence in this case overwhelming leads to the conclusion that the plaintiff

is a qualified individual with a disability which disability substantially affects his ability to

perform the major life functions of thinking and/or concentrating. First, Harold Mast was

directly informed by the plaintiff in the November 12, 2002 letter that the plaintiff suffered from

thedisabilityofADD.TheplaintiffexplainedintheletterthatADDisadisabilityandthat“this

10 In the present case, the plaintiff asserts that he is a qualified individual with disabilities that limit him in the major

life activities of thinking, concentrating, i.e. cognitive functioning, not working. The standards are different with

regard to what major life activity is at issue. The defendants have appeared to have blurred the law with regard to

the standards affecting the differences between the major life activities of thinking/concentrating and working, Defs.

Mot. for SJ at 29. To be substantially limited in the major life activity of working, then, one must be precluded

from more than one type of job, a specialized job, or a particular job of choice. Sutton, 527 U.S. 471 (1999). There

is no requirement that the plaintiff establish that he is precluded from performing a broad base of jobs when the

contention is that he is limited in the major life activity of thinking, concentrating.

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issomethingthatIhavelivedwithformywholelife.”Ex. C. The plaintiff stated in the letter

that“toperformtasksthatrequirehighlevelsofdetailapersonwithADDneedstominimizethe

environmentaldistractions.”Id. Then, the plaintiff requested that he be permitted to perform his

duties in an area where distractions could be minimized. The plaintiff said he was open to

alternate accommodations. Id.

Next,the plaintiff’s expertwitness and treating physician, Dr. Daniel Block,

affirmatively stated in his expert report that the plaintiff suffers from the permanent disabilities

of “majordepressiveepisode,recurrent,moderateseverity;adultADHDandepisodicalcohol

abuse.”Ex. A. Dr.Blockstatedthatthesedisabilitiesaffecttheplaintiff’sabilitytoconcentrate,

think in an organized manner, pay attention and sleep. Dr. Block stated that the plaintiff was

treated with various medications over the years but that medication adjustments were needed

because“certainmedicationsmaynotbeworkingaswellanymorebecauseoftoleranceorloss

ofefficacy.”Ex. A.

The defendants have admitted in their summary judgment motion that the plaintiff is

depressed and that depression is a mental impairment, Defs. Mot. SJ at 17-18. However,

unrelated to the issue of ADD/ADHD, the defendants contend that the plaintiff did not establish

that he was depressed at the time of his discharge, Id.However,Dr.Block’sexpertreport

unequivocally indicates that the plaintiff was depressed in November, 2002 and December, 2002,

Ex. A. So, the argument that the plaintiff has not produced any medical evidence to substantiate

his claim that he suffered from depression in November, 2002 and December, 2002 is

unfounded. The plaintiff was diagnosed with depression in June, 2000. The defendants could

haveobtainedalloftheplaintiff’smedicalrecordswhentheywerenotifiedoftheplaintiff’s

ADD disability. The defendants could have spoke to the plaintiff about his disabilities and then

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they would have been apprisedoftheplaintiff’sdisabilitiesintheirtotality. But instead,

according to theplaintiff,thedefendants“blewmeoff,stonewalledme.Nobodytalkedtome.I

wasshunnedandfired,”justafewdaysbeforeChristmas.Ex. B, ¶ dep. at 136-137. The

egregious discharge of the plaintiff at Christmas because he suffered from mental disabilities

caused him severe emotional distress and significantly worsened his depressive mental state.

Dr. Block’sreport clearly indicates that the medication taken by the plaintiff for his

disability never completely corrected his disability. To the contrary, even while on the

medications of Wellbutin and Adderall, the plaintiff continued to experience lack of sleep,

anxiety, stress and periods during the day of lack of concentration, Ex. A. The medications taken

by the plaintiff helped his disability over the years but the medications in no way corrected his

disability, Ex. B, ¶ dep. at 62. The United States Supreme Court held in Sutton, 527 U.S. at 482

(1999), that to sustain a claim that the disability does not substantially limit a major life activity,

the medication must affirmatively correct theclaimant’scondition.

Furthermore, the fact that BRT, Inc. was informed by its own Human Resource Manager,

Jan Thies, that the plaintiff could not perform the additional duties of routing/dispatching without

some sort or special arrangements is critically important. Jan Thies stated in a Memo written in

responsetotheplaintiff’sNovember12,2002requestforreasonableaccommodationthat“It

does appear that Mike cannot perform the functions required of a routing dispatcher without

sometypeofspecialarrangements.”Ex. G. Mr. Thies reaffirmed this conclusive statement at his

deposition, Ex. D, Thies dep. at 6. Therefore,thedefendantsknewthattheplaintiff’sdisabilities

affected his ability to perform his duties without reasonable accommodation.

Thus, clearly, the plaintiff’sowntestimony,theplaintiff’smedicalevidenceandthe

admissions on behalf of the defendants,indisputablysustaintheplaintiff’sassertionthatheisa

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qualified individual with a disability which disability substantially affects his ability to perform

the major life activities of thinking and concentrating, i.e. cognitive functioning. At the very

least, the defendants’motionforsummaryjudgment should be denied withregardtoplaintiff’s

disability discrimination claim because genuine issues of material facts exist that pertain to

whethertheplaintiff’sdisabilitiessubstantiallylimithiminthemajorlifeactivitiesofthinking

and concentrating i.e. cognitive functioning. The Third Circuit has held that it is a question of

fact whether an individual is substantially limited in a major life activity, and it is commonly

accepted that fact questions should be left to the determination of the jury, Gagliardo, 311 F.3d

565, 569 (3rd Cir. 2002). In Gagliardo the court found that a jury could reasonably conclude that

the plaintiff was substantially limited in her ability to concentrate and remember based on the

testimonyofhertreatingphysician,heremployers’recognition that she had concentration and

memory problems, and the testimony of other witnesses that the plaintiff experienced fatigue and

muscle spasms. Thus, the Third Circuit refused to overturn a jury verdict in favor of the

plaintiff for $2.5 million, Id.

2. The Defendants Reliance On The Leona Collins Case Is Misplaced.

Thedefendants’relianceonthecase,Collins v. Prudential Investment and Retirement

Services, 2005 U.S. App. Lexis 148 (3rd Cir. 2005), is misplaced because the case is not

precedential and the case is distinguishable from the facts of the instant case. In Collins, the

plaintiff was not denied a jury trial at the summary judgment stage; the case was heard before a

jury and a directed verdict was granted to the defendants.

11 On Appeal, the Third Circuit, stating

that it was writing only for the parties involved, affirmedthelowercourt’sfindingspursuantto

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2002). Thelowercourt’s

11 The defendants erroneously assert that the Collins caseinvolvedtheplaintiff’sappealofasummaryjudgment

grant to the defendants, Defs. Mot. for SJ at 21. This is wrong, the case involved a jury trial and a directed verdict.

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opinion was left undisturbed because the Third Circuit did not find that the district judge abused

his discretion when he weighed the evidence and made credibility determinations. Ms. Collins

didn’tevenknowshehadADDuntilaftershesufferedanadverseemploymentaction.

The defendants have argued in this case that because Ms. Collins was successful in life

despite her ADD and because the plaintiff was arguably successful in certain aspects of his life

despite his disabilities, his claim cannot be sustained as per the Collins case. However, contrary

to what the defendants have argued, the Third Circuit has never ruled that the accomplishments

of a disabled person constitute a defense to a disability case. And, it would be imprudent for this

court to make factual judgments concerning the plaintiff’sso-called successes because these are

fact questions that should be left to the jury.

In Emory v. Astrazeneca Pharmaceuticals LP, 401 F.3d 174 (3rd Cir. 2005), a

precedential case which was decided a few months after Collins, the Third Circuit held that“The

key question is not whether a handicapped person accomplishes [his goals], but whether [he]

encounters significant handicap-relatedobstaclesindoingso.” TheEmory case involved a

cerebral palsy individual who suffered from physical disabilities and mental disabilities. The

district court made the Collins argument and said that since Emory had fulfilled

accomplishments and goals, hewasn’tdisabledwithinthemeaningoftheADA, so the district

court granted summary judgment to the defendants. The Third Circuit looked at the difficulties

Emory faced in accomplishing his goals and reversed the grant of summary judgment.

In the present case while it is true that the plaintiff has graduated from college and has

had many jobs over the years there isnoindicationintherecordthattheplaintiff’sdisabilities

did not create significant obstacles for him. The record unequivocally demonstrates that the

plaintiff struggled to graduate from college. His college transcripts show that he received 6 Ds

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and 17 Cs while he was in attendance at Delaware Community College and Shippensburg

University. Moreover, the transcripts indicate that his GPA sank after he transferred to a 4 year

University Program, Ex. J. Dr. Block stated in his report that the plaintiff’sB/Caveragein

collegewas,intheplaintiff’sopinion,“belowwhathefelthecouldandshouldhavebeenableto

achieve.”Ex. A. Theplaintiffwasplaguedwithdifficultiesthroughoutcollege,“wherehe

finishedwithaCaverage.”Id. A jury could reasonably conclude that the fact that a plaintiff has

had numerous jobs during his life establishes that he suffered many obstacles/struggles relating

to his disabilities because he could not achieve job security. Thedefendants’motionshouldbe

denied because there are genuine issues of material fact that relate to whether the plaintiff

encountered disability related obstacles in accomplishing some goals, Id.

3. The Defendants Regarded The Plaintiff As Disabled.

In the alternative, the plaintiff maintains that the defendants committed illegal

discrimination and/or retaliation by failing to afford him with reasonable accommodation and by

discharging and retaliating against him because he was regarded as disabled as per the definition

provided at 42 U.S.C. § 12102(2) and any other correlating federal and/or state law. The

plaintiff maintains that he was regarded as disabled by the defendants because he (1) has a

physical or mental impairment that does not substantially limit a major life activity but was

treated by the defendants as constituting such limitation; (2) has a physical or mental impairment

that substantially limits a major life activity as a result of the attitudes of defendants and/or

employees within the defendant company toward such impairment; or (3) has no such

impairment but was treated by the defendants as having a substantially limiting impairment. The

illegal discrimination/retaliation in the present case is based upontheplaintiff’sdisabilitiesas

perceived by the defendants. Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 188 (3rd Cir. 1999).

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TheThirdCircuithasheldinaprecedentialopinionthata‘regardedas’employeeis

entitled to reasonable accommodation in the same manner as those who are actually disabled.

Williams, 380 F.3d 751 (3rd Cir.2004).ThelawintheThirdCircuitisthata‘regardedas’

employee can make out a prima facie case of disability discrimination even if there is an

innocentmistakeonbehalfoftheemployerconcerningthecomplainant’sdisabilityorextent of

his disability. Therefore, thereisnogoodfaithdefenseina‘regardedas’caseundertheADA

andthePHRA.Theemployer’sstateofmind,however,remainsrelevanttotheappropriate

remedies. Williams, 380 F.3d 751 at n. 14 (3rd Cir. 2004). The prima facie standards for a

‘regardedas’employeearethesameforadisabledemployee.And,“evenwhereanemployer

mistakenly regards an employee as so disabled that the employee cannot work at all, the

employerstillmustaccommodatea‘regardedas’employeebyseekingtodetermine,ingood

faith,theextentoftheemployee’sactuallimitations.”Williams, 380 F.3d 751 at n. 19.

In Taylor, 177 F.3d 180, 189 (3rd Cir. 1999), the Court held that it is not intrinsically

contradictory to argue thattheplaintiffisactuallydisabledand‘regardedas’disabled,“ashe

could have an impairment (whether or not it rose to the level of a disability) that could actually

beaccommodated,despite[hisemployer’s]perceptionthathisdisabilitywastoosevere to

accommodate.” SeeWilliams, 380 F.3d 751 at n. 10 (3rd Cir. 2004). Also, a party is free to

plead in the alternative, Federal Rule of Civil Procedure Rule 8(e)(2).

There is no question that the plaintiff was regarded as disabled by the defendants. Harold

Mastwasinformedbytheplaintiffintheplaintiff’srequestforreasonableaccommodationthat

the he (plaintiff) suffered from the permanent, life-long disability of ADD. The plaintiff clearly

told Harold Mast that he needed reasonable accommodation in order to minimize distractions

since his duties had been expanded to include routing, Ex. C.

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16

In addition, sometime after the plaintiff submitted his requested for reasonable

accommodations via the November 12, 2002 letter, Jan Thies, Human Resource Manager at the

time of plaintiff’semployment,wroteaMemoinresponseto the plaintiff’sNovember12,2002

letter, Ex. G, Thies Memo; Ex. D, Thies dep. at 21. Jan Thies stated in the Memo and reiterated

at his deposition that he did not believe that the plaintiff could perform the functions required of

routing/dispatching without some type of special arrangements, Ex. G; Ex. D, Thies dep. at 61.

The Thies Memo was circulated to all of the management team, including defendant, Harold

Mast, and it was arguably written at the request of Harold Mast and/or other members of BRT,

Inc. management, Id.

Therefore,notonlywerethedefendantsawareoftheplaintiff’sdisabilityatthetimeof

discharge, but they regarded him as disabled because they were told by the plaintiff and a

member of the management team that the plaintiff needed accommodation for his disability. 12

Theplaintiff’sclaimthatthedefendantsregardedhimasdisabledinviolationoftheADAshould

not be dismissed because a jury could reasonably find that the facts of this case show that the

defendants regarded the plaintiff as disabled.

4. The Plaintiff Was Entitled To Reasonable Accommodation.

Reasonableaccommodation“includestheemployer’sreasonableeffortstoassistthe

employee and to communicatewiththeemployeeingoodfaith,”SeeMengine v. Runyon, 114

F.3d 415, 416 (3rd Cir. 1997). It is a fact question whether a proposed accommodation is

reasonable, Buskirk v. Appollo Metals, 307 F.3d 160, 170 (3rd Cir. 2002). An employee can

show that an employer breached the duty to act in good faith in the interactive process to assist in

12 The defendants possessed more than a mere awareness that that the plaintiff was impaired. So, the Kelly v.

Drexel University, 94 F.3d 102 (3rd Cir. 1996) statementthat“themerefactthatanemployerisawareofan

employee’simpairmentisinsufficienttodemonstrateeitherthattheemployer regarded the employee as disabled or

thattheperceptioncausedtheadverseemploymentaction,”isinapplicabletothefactsofthepresentcase.

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17

reasonably accommodating the employee by showing that: (1) the employer knew of the

employee’sdisability;(2)theemployeerequestedaccommodationsorassistance for his

disability; (3) the employer did not make a good faith effort to assist the employee in seeking

accommodations; (4) the employee could have been reasonably accommodated but for the

employer’slackofgoodfaith.Taylor, 184 F.3d 319-320.

In addition,“employerscanshowtheirgoodfaithinanumberofways,suchastaking

steps like the following: meet with the employee who requests an accommodation, request

information about the condition and what limitations the employee has, ask the employee what

heorshespecificallywants,showsomesignofhavingconsideredemployee’srequest,andoffer

anddiscussavailablealternativeswhentherequestistooburdensome.”Williams, 380 F.3d 751

at n. 16 (3rd Cir. 2004). However, where an employer fails to engage in the interactive process

he runs the risk of overlooking an opportunity to accommodate a statutorily disabled employee

thereby violating the ADA, Williams, 380 F.3d 751 at n. 16, citing Taylor, 184 F.3d at 317.

Requesting a reasonable accommodation standing alone is a protected activity under the

ADA, therefore there is no need for a complainant to file a formal charge regarding the failure to

accommodate. See Shellenberger v. Summit Bancorp, Inc., 318, F.3d 183, 191 (3rd Cir. 2003).

The defendants erroneously argue that the plaintiff was/is not entitled to a reasonable

accommodation because they unknowingly gave him accommodations prior to his formal request

datedNovember12,2002i.e.theyimplementedtheplaintiff’scomputerapplicationsto the

BRAVO system and they let him come in late when he had to work overtime the previous night.

This novel argument put forth by the defendants lacks support under any case law and this is

clear because the defendants have not cited any applicable statutory law or case precedent. So, at

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the summary judgment stage, this argument should not be counted in determining whether the

plaintiff was entitled to reasonable accommodation.

In addition, citing Bennett v. Unisys Corp., 2000 U.S. Dist. Lexis 18143, *27 (E.D. Pa.

12/11/00), the defendants argue that if the plaintiff was capable of performing his duties without

being moved to a quieter location, then the plaintiff was not entitled to the accommodation of a

quieter location, Defs. Mot. for SJ at 31. The citation to the Bennett is confusing because

Bennett does not support the defendants’position. In Bennett, Judge Van Antwerpen denied the

defendant’smotionforsummaryjudgmentconcludingthatdepressionisadisabilitythataffected

theplaintiff’sability to think, concentrate and interact with others. Moreover, the court found

that there is a lowbarrierthatwouldtriggeranemployer’sobligationtoengageintheinteractive

process relating to a reasonable accommodation even when a formal request for reasonable

accommodation has not been made. Therefore, the Bennett case makes it clear that whether or

not the plaintiff was capable of performing the essential functions of the job without

accommodation is a disputed fact question that should be decided by the jury.

Jan Thies told the defendants that the plaintiff needed accommodation, Ex. G; Thies dep.

at 61. The plaintiff told the defendants in the November 12, 2002 letter that he needed the

accommodation, Ex. C. The plaintiff informed the defendants that he was disabled, Id. The

plaintiff could have been easily accommodated. Theplaintiff’sreasonableaccommodation

request was not an undue hardship because the defendants had/have numbers of areas where the

plaintiff could perform his duties with limited distractions, Id.; Ex. D, Thies dep. at 24. The

plaintiffstatedathisdeposition“TheyknowwhatIhad.Iaskedforanaccommodation.Imade

itcleartothem.TheyhadthesameaccommodationIwasafter.”Ex. B, ¶ dep. at 137. The

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19

defendants never engaged in the interactive process at all, so the defendants intentionally

violated the ADA.13

Furthermore, Dr. Block stated that it was his professionalopinionthat“hadADA

guidelines been followed and had BRT been more willing to work with Mr. Liberati, whatever

problems arose in his performance could have been adequately addressed and handled and he

couldhaveremainedthereasaproductiveemployee.”Ex. A.

The plaintiff respectfully requests that his claims for disability discrimination not be

dismissed at the summary judgment stage. All that the plaintiff needs to show in order to

establish a prima facie case of disability discrimination is: (1) that he is disabled within the

meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job,

with or without reasonable accommodations by the employer; (3) he has suffered an adverse

employment action as a result of the discrimination. The plaintiff has established that he is

disabled or that he was regarded as disabled by his employers. The defendants have admitted

that the plaintiff could perform the essential functions of his job with or without reasonable

accommodation. And, the plaintiff was unlawfully discharged. Moreover, the defendants failed

to engage in the interactive process and to provide the plaintiff with available reasonable

accommodations based on disability discrimination. Alloftheevidencesupportstheplaintiff’s

disability discrimination claims and at the very least the evidence of the plaintiff’stestimony,the

testimonyoftheplaintiff’sexperttreatingphysicianandthetestimonyofotherBRT, Inc.

employees creates genuine issues of material facts.

13 See Deane v. Pocono Medical Center, 142 F.3d 138, 149 (3rd Cir. 1998) (en banc), where the court held that one

phonecallbetweenanemployerandanemployeeregardingtherequestedreasonableaccommodation“hardly

satisfies our standard that the employer make reasonable efforts to assist the employee, to communicate with him in

goodfaith[.]”

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B. DISABILITY RETALIATION.

In order to establish a prima facie case of illegal retaliation under the anti-disability

discrimination statutes, a plaintiff must show: (1) protected employee activity; (2) adverse action

bytheemployereitherafterorcontemporaneouswiththeemployee’sprotectedactivity;and(3)

a causal connection between theemployee’sprotectedactivityandtheemployer’sadverse

action.”Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3rd Cir. 2002) (quoting Krouse v.

Am. Sterilizer Co., 126 F.3d 494, 500 (3rd Cir. 1997). As was stated earlier, requesting a

reasonable accommodation standing alone is a protected activity under the ADA, Shellenberger,

318, F.3d 183, 191 (3rd Cir. 2003).

A disability retaliation claimant does not have to establish that he is actually disabled in

order to prevail.“Therighttorequest an accommodation in good faith is no less a guarantee

under the ADA than the right to file a complaint with the EEOC, and we have already explained

that the ADA protects one who engages in the latter activity without regard to whether the

complainant is ‘disabled.’”Shellenberger, 318 F.3d 183, 188 (3rd Cir. 2003). The Third Circuit

hasheldthataplaintiffonlyneedstoshow“thatshehadareasonable,goodfaithbeliefthatshe

was entitled to request the reasonable accommodation,”Williams, 380 F.3d 751 (3rd Cir. 2004).

The temporal proximity of time between the protected activity and the termination can be

itself sufficient to establish the causal link, Shellenberger, 318 F.3d at 183 (quoting Woodson v.

Scott Paper Co., 109 F.3d 913, 920 (3rd Cir. 1997).However,thetimingmustbe“usually

suggestiveofretaliatorymotivebeforeacausallinkwillbeinferred.”Shellenberger, 318 at F.3d

at 189 n.9 (quoting Krouse, 126 F.3d at 503). 10 days in Shellenberger was sufficient to

establish a prima facie showing of causation. However, where the temporal proximity of time is

not so close to be unduly suggestive (2 months in the Williams case), the Third Circuit has

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21

recognizedthat“timingplusotherevidencemaybeanappropriatetest...”Thomas v. Town of

Hammonton, 351 F.3d 108, 114 (3rd Cir. 2003).

Thedefendantsinthepresentcasehavearguedthattheplaintiff’sretaliationclaim should

be dismissed because the plaintiff did not make a good faith request for reasonable

accommodation and because the time between the request for accommodation and the resultant

discharge indicates a lack of causation. The plaintiff clearly made his request for reasonable

accommodation in good faith. He was diagnosed with ADD/ADHD and depression in the year

2000, Ex. A. He had been on various medications due to the disabilities, Id. He needed

reasonable accommodation after his duties were expanded to include routing, Ex. C. The

accommodations that the plaintiff requested were very limited and available at the BRT, Inc.

offices in which he worked, Ex. D, Thies dep. at 24. The plaintiff even told Harold Mast in the

November 12, 2002 letter that he was open to any other type of accommodation that was

available, Ex. C. The only bad faith that exists in this case with regard to the request for

reasonable accommodation is the defendants’complete refusal to engage in the interactive

process with the plaintiff, Ex. B., ¶ dep. at 13; Ex. D, Thies dep. at 19-20.

The defendants discharged the plaintiff 34 days after he requested reasonable

accommodation.14 In addition, the defendants discharged the plaintiff only a few days after John

Vanande spoke with Harold Mast. John Vanande told Harold Mast that the plaintiff had called

him (Vanande) to discuss ADD. The plaintiff thought Mr. Vanande also suffered from ADD

and the plaintiff thought that maybe they could bond together in an effort to prevent

discrimination and discharge, Ex. H, Vanande dep. at 10-15. Therefore, the temporal proximity

of time between theplaintiff’sdischarge and Mr. Vanande informing Harold Mast about the

14 It is likely that this period is even shorter because the plaintiff mailed the November 12, 2002 letter to Harold

Mast.

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22

phone-call Vanande received from the plaintiff is unduly suggestive of retaliation. Moreover,

the fact that the defendants never engaged in the interactive process with the plaintiff clearly

supports a conclusion that the defendants violated the ADA when they retaliated against the

plaintiff by discharging him after he asked for reasonable accommodation. Thus, since the

plaintiff has established all of the elements of a prima facie case and since he has raised material

issuesoffactthatcansurelysupportajuryverdictofillegalretaliation,theplaintiff’sclaimfor

retaliation should not be dismissed.

C. THE DEFENDANTS’CLAIM THAT THE PLAINTIFF WAS DISCHARGED

BASED ON A LEGITIMATE BUSINESS REASONS IS PRETEXTUAL.

The defendants’alleged business reasons for the discharge of the plaintiff are pretextual.

The defendants claim that the plaintiff was discharged because he appended custom applications

totheBRAVOsystemwhenhewas“repeatedly”askednot to do so and because he intercepted

management employees’e-mails.

First, the plaintiff testified that he started using his custom computer applications

appended to the BRAVO system without any dissent from management since approximately

one-two months after his employment began, Ex. B, ¶ dep. at 107-108. And, the plaintiff

testifiedthatotheremployeesatBRT,Inc.wereusingtheplaintiff’scomputerapplications

during his employment with the company, Id. The plaintiff testified that the first time he was

told not to use his applications was by letter dated December 10, 2002, after he requested

reasonable accommodation, Ex. B, ¶ dep. at 107-108. The December 10, 2002 reprimand letter

statesthatsomeoftheplaintiff’scomputerapplicationswereactually incorporated into the

BRAVO system, so it is hardly believable that the stated reason for the discharge, appending

applications to the BRAVO system, was legitimate. No one ever had a problem with the

plaintiff’sapplicationsuntilafterheasked for reasonable accommodation. In addition, the

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defendants argue at page 34 in their motion that Jan Thies discovered that the plaintiff used his

self-designed program on December 11th and 12th, 2002 after the plaintiff was told not to do so.

The plaintiff stated that he did not use the applications again after being told not to do so by

letter dated December 10, 2002, Ex. B, ¶ dep. at 113.

The argument that the appended applications were causing the BRAVO system to corrupt

is pretextual. Jason Waters, the IT contractor for BRT, Inc., testified that the BRAVO system

was a nightmare and it regularly corrupted, Ex. K, Waters dep. at 20. Mr. Waters testified that

BRT, Inc. stopped using the BRAVO system on November 15, 2005 because the system was

more maintenance that what was wanted, Ex. K, Waters dep. at 20-21. Mr. Waters testified that

itwasmerespeculation,“agutfeeling,”thatthesystemwascorruptingmoreoftenwhenthe

plaintiffwasworkingandhetestifiedthatMike(theplaintiff)“wouldn’thave had to have been

thereforittocorrupteither,”Ex. K, Waters dep. at 34.

Next, the plaintiff affirmatively denies that he ever intercepted otheremployees’e-mails

while he was employed at BRT, Inc., Ex. B, ¶ dep. at 114. The defendants have appended to

their motion numbers of images of computer screens that they claim indicate that the plaintiff

intercepted e-mails. Looking at the images, there is no way to confirm that they came from the

computer that was utilized by the plaintiff during his employment. Jason Waters stated at his

deposition that BRT, Inc. utilized an unsecured system where Outlook stored all the employee email files, Ex. K, Waters dep. at 26-27. He further stated that anyone could look into all of the

Outlook e-mail files because the files were unsecured, Id. And, he stated that is was relatively

simpletoaccessotherpeople’se-mails, Id. All of the employees at BRT, Inc. had passwords to

access their e-mails. BRT, Inc., through management, had access to all of the employee

passwords. In the BRT, Inc. Information Systems Policy, dated March 5, 2002, attached hereto

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24

as Ex. L,thepolicyclearlystatesthat“all [e-mail] passwords are know to the BRT, Inc., as

the system may need to be accessed by BRT, Inc. in the absence of an employee.”

It is the position of the plaintiff that after he asked for reasonable accommodation, Harold

Mast contacted an attorney and he (Mast) was arguably told about the law regarding the defense

of a legitimate business reason, Ex. D, Thies dep. at 15-16.

15 So, in an effort to fabricate a

defensetotheplaintiff’sclaims,HaroldMast,alongwithothermembersofmanagement,issued

the plaintiff the December 10, 2002 unwarranted reprimand stating that he should stop using his

BRAVO applications. Then, with the help of Jason Waters and Jan Thies, BRT, Inc. accessed

theplaintiff’sfilesandtriedtocreateevidencethatwouldindicatethattheplaintiffwasstill

using his applications and/or that he was intercepting e-mails. It is clear that BRT, Inc.

management had the ability and motive to append false informationtotheplaintiff’scomputer

which could create a reason for the unlawful discharge. In light of the defendants’egregious acts

of discrimination and retaliation, it is pretextual that the business reason for the plaintiff’s

discharge was using custom computer applications and intercepting e-mails.

D. NEGLIGENT/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

In order for a plaintiff to establish a state law claim for negligent infliction of emotional

distress in Pennsylvania a plaintiff must have suffered from some sort of bodily injury, Simmons

v. Pacor, Inc., 674 A.2d 232, 238 (Pa. 1996). In the instant case, the plaintiff suffered from

bodily manifestations of the negligent infliction of emotional distress so this claim should not be

dismissed. Dr. Block stated that the intentional, unlawful discharge of the plaintiff caused

severeanxiety.Dr.Blockstated“AnxietyaboutthesituationwithandterminationfromBRT,

Inc., was prominent to the point it was interfering with his functioning and he had begun using

15 JanThiestestifiedthatHaroldMastsaidthathe(Mast)contactedanattorneyabouttheplaintiff’sNovember12,

2002 letter, Ex. D, Thies dep. at 15-16.

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hiswife’sAtivan.WheneverhewouldseeatruckfromBRThisanxietylevel would acutely

increase. He was awakening with anxiety about it and felt unable to let go of what happened,

especially the accusation of theft [of computer files]. He had been so upset about this that he had

requested for that session to be longer and was seen for a full session as opposed to the usual

medication visits. Buspar was prescribed @ 15 mg BID for his anxiety.”

In order for a plaintiff to sustain a state law claim for intentional infliction of emotional

distressinPennsylvaniaaplaintiffmustshowthatthedefendants’conductwasextremeand

outrageous, Cox v. Keystone Carbon Co., 861 F.2d 390 (3

rd Cir. 1988). In this case the actions

of the defendants were extreme and outrageous so this claim should not be dismissed. The

defendants discharged the plaintiff a few days before Christmas and the defendants deceitfully

concocted an illegitimate defense by secretly appending false information totheplaintiff’s

computer. The defendants falsely accused the plaintiff of using applications that he was asked

nottoandthedefendantsfalselyaccusedtheplaintiffofinterceptingotheremployees’e-mails

after he requested reasonable accommodation. The defendants refused to engage in the

interactive process relating to requests for reasonable accommodations. And, the defendants did

all this, when they knew that the plaintiff suffered from mental disabilities. The extent of the

outrageousness of the defendants conduct should be questions left to the jury.

IV. CONCLUSION.

For all of the foregoing reasons, the plaintiff respectfully requests that this court deny the

defendants’motion for summary judgment with regard to Count I –Discrimination and Failure

to Provide Reasonable Accommodation; Count III –Retaliation; Count IV –PHRA; and Count

V –Intentional/Negligent Infliction of Emotional Distress of his complaint. The plaintiff

concedes to the dismissal of Count II of his complaint.

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26

Plaintiff’sOppositiontoDefendants’

Motion for Summary Judgment

& Incorporated Memorandum of Law

Respectfully Submitted by:

SIGNATURE CODE: SAZ4759

s/Sharon Ann Ziegler, Esq.

(PA Attorney I.D. No. 64027)

5118 Foxfire Trail

Kingsport, TN 37664

(423) 288-9623

John Neumann Hickey, Esq.

(PA Attorney I.D. No. 61896)

20 West Front Street

Media, PA 19063

(610) 891-8883

Attorneys for Plaintiff

Michael J. Liberati

DATE: February 15, 2006

Case 2:05-cv-01661-MMB Document 26 Filed 02/15/06 Page 26 of 27
27

CERTIFICATE OF SERVICE

I, Sharon Ann Ziegler, Esq., the undersigned and attorney of record for the plaintiff in the

case Liberati v. BRT, Inc. et al., Civil Action File No.: 2:05-cv-1661 hereby certifies that a true

and correct copy of Plaintif’sOppositiontoDefendants’MotionforSummaryJudgmentand

Incorporated Memorandum of Law, was served on February 15, 2006 via e-mail transmission

and regular U.S. mail, to the following counsel of record:

Michael J. Crocenzi, Esq.

Goldberg Katzman

320 Market Street

Strawberry Square

P.O. Box 1268

Harrisburg, PA 17108-1268

Attorney for Defendants

SIGNATURE CODE: SAZ4759

s/Sharon Ann Ziegler, Esq.

Case 2:05-cv-01661-MMB Document 26 Filed 02/15/06 Page 27 of 27