1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-18-1997

Matczak v. Frankford Candy

Precedential or Non-Precedential:

Docket 97-1057

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Recommended Citation

"Matczak v. Frankford Candy" (1997). 1997 Decisions. Paper 262.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/262
Filed November 18, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1057 

JOSEPH R. MATCZAK, 

v. 

FRANKFORD CANDY AND CHOCOLATE COMPANY, 

Joseph Matczak, 

 Appellant. 

APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Civil No. 96-cv-03083) 

ARGUED SEPTEMBER 23, 1997 

BEFORE: COWEN, ROTH, and LEWIS, Circuit Judges. 

(Filed November 18, 1997) 

 Edward J. Daly (ARGUED) 

 Suite 500 

 437 Chestnut Street 

 The Lafayette Building 

 Philadelphia, PA 19106 

 Attorney for Appellant 
 Marvin L. Weinberg (ARGUED) 

 Fox, Rothschild, O'Brien & Frankel 

 2000 Market Street 

 10th Floor 

 Philadelphia, PA 19103 

 Attorney for Appellee 

 Jennifer S. Goldstein (ARGUED) 

 Equal Employment Opportunity 

 Commission 

 1801 L Street, N.W. 

 Washington, D.C. 20507 

 Attorney for Amicus-appellant 

OPINION OF THE COURT 

LEWIS, Circuit Judge. 

In this case, we must determine whether an epileptic, 

who controls his disability with medication, can maintain 

an employment discrimination action without showing he 

satisfied his employer's expectations or showing favorable 

treatment of non-disabled employees by the employer. We 

hold that such an individual can present a prima facie case 

of employment discrimination and therefore should survive 

a motion for summary judgment. 

We will reverse the judgment of the district court as to 

this claim and remand for further proceedings. 

I. 

Plaintiff-appellant Joseph Matczak began working for 

defendant-appellee Frankford Candy and Chocolate 

Company ("Frankford") in April 1993 as a Maintenance 

Supervisor. After about ninety days, Matczak was 

reassigned to the position of Building Maintenance 

Supervisor. The duties of this position included maintaining 

Frankford's facilities and supervising two mechanics. In 

November 1993, Matczak suffered an epileptic seizure at 

work and was hospitalized for seventeen days. He had been 

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diagnosed with epilepsy almost thirty years earlier but had 

controlled the condition with medication and had never 

experienced a seizure prior to this incident. 

Matczak's doctor put him on a new medication for about 

five and a half months and restricted his physical activities 

for that period of time. The doctor sent a note to Matczak's 

superiors at Frankford, informing them of the restrictions 

on Matczak's activities. The note stated: "Mr. Matczak is 

under my care and cannot at present work around moving 

machinery, operate a vehicle or work at heights. He can, 

however, effectively supervise this type of work by others. 

. . . This applies for the next 5 1/2 month[s.]" Appendix at 

51a. Upon his return to work in December, Frankford

placed Matczak on restricted duty and assigned various 

tasks to him which were not prohibited by his doctor (e.g., 

creating a computer inventory of machinery parts). In April 

1994, Frankford fired Matczak. Frankford's reasons for 

firing Matczak are unclear since it has offered two

conflicting explanations: (1) Matczak was fired because "he 

did not adequately perform the tasks he was given after he 

returned to work" and (2) Matczak was fired because

"business was slow . . . and his job was being eliminated." 

Matczak v. Frankford Candy and Chocolate Company, 950 

F. Supp. 693, 695 (E.D. Pa. 1997). Matczak claims these 

explanations serve as pretext for the real reason he was 

fired: because he has epilepsy. 

Matczak brought suit against Frankford in district court 

for alleged violations of the Americans with Disabilities Act 

("ADA"), 42 U.S.C. S 12101 et seq., and the Pennsylvania 

Human Relations Act ("PHRA"), 43 PA. CONS. STAT. ANN. 

S 951 et seq.1 Matczak also made claims of negligent and 

intentional infliction of emotional distress. Pursuant to 

Federal Rule of Civil Procedure 56(c), Frankford moved for 

summary judgment as to all claims. The district court 

granted the motion, finding that (1) Matczak was not 

actually disabled under the ADA; (2) even if a jury

considered Matczak "regarded as" disabled by his employer, 

_________________________________________________________________ 

1. Although we will only discuss the ADA claim, any analysis applied to 

the ADA claim applies equally to the PHRA claim. Kelly v. Drexel 

University, 94 F.3d 102, 105 (3d Cir. 1996). 

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he had not presented requisite elements of a prima facie 

case of employment discrimination; and (3) the negligent 

and intentional infliction of emotional distress claims were 

without merit. 

II. 

The ADA prohibits discrimination by an employer 

"against a qualified individual with a disability because of 

the disability of such individual in regard to job application 

procedures, the hiring, advancement, or discharge of 

employees, employee compensation, job training, and other 

terms, conditions, and privileges of employment." 42 U.S.C. 

S 12112(a). The ADA defines a "disability" 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. S 12102(2). A "qualified individual 

with a disability" is an individual "with a disability who, 

with or without reasonable accommodation, can perform 

the essential functions of the employment position that 

such individual holds or desires." 42 U.S.C. S 12111(8). 

Before the district court, Matczak claimed protection 

under the ADA because his epilepsy is a physical 

impairment substantially limiting major life activities. 

Alternatively, Matczak claimed that, even if his impairment 

is not substantially limiting, Frankford regarded him as 

being substantially limited by it. Matczak made no claim 

that he had satisfied Frankford's expectations with regard 

to his performance or that Frankford had treated employees 

outside the ADA's protected class more favorably. 

The district court acknowledged that Matczak's epilepsy 

would constitute a physical impairment under the ADA but 

found that the impairment did not substantially limit any 

major life functions other than "some manual tasks, such 

as climbing heights or working around machinery." 

Matczak, 950 F. Supp. at 696. The district court also 

concluded that the impairment could not be "severe or 

permanent" because the condition was only to last 

"approximately six months." Id. However, noting that a jury 

could conclude Matczak was "regarded as" disabled by 

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Frankford, the district court turned to Matczak's prima 

facie case of discrimination. Id. at 697. The district court 

determined that a prima facie case required a showing that 

the employer's legitimate expectations were met and that 

employees outside the protected class received favorable 

treatment. Id. Since Matczak did not present evidence of 

these two elements, the district court ruled that he did not 

present a prima facie case of employment discrimination. 

Id. The district court also found no evidence to support 

Matczak's claims of negligent and intentional infliction of 

emotional distress. Id. Based on these conclusions, the 

district court granted Frankford's motion for summary 

judgment. Id. 

III. 

We have appellate jurisdiction pursuant to 28 U.S.C. 

S 1291. We exercise plenary review over a district court's 

grant of summary judgment. Olson v. General Electric 

Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). We apply the 

same test the district court should have applied in the first 

instance. Lawrence v. National Westminster Bank, New 

Jersey, 98 F.3d 61, 65 (3d Cir. 1996). We must therefore 

determine whether the record, when viewed in the light 

most favorable to Matczak, shows that there is no genuine 

issue of material fact and that Frankford was entitled to 

summary judgment as a matter of law. See Celotex 

Corporation v. Catrett, 477 U.S. 317, 322-23 (1986); Brewer 

v. Quaker State Oil Refining Corporation, 72 F.3d 326, 329- 

30 (3d Cir. 1995). 

IV. 

We first consider the district court's conclusions with 

regard to Matczak's ADA claims. As to these claims, the 

district court concluded that: (1) Matczak could not claim 

to be actually disabled under the ADA; and (2) Matczak 

could claim to be "regarded as" disabled but did not present 

a prima facie case of discrimination. We will address each 

of these assessments in turn. 

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A. 

The district court determined that Matczak's impairment 

did not substantially limit major life activities because he 

was only restricted from participating in a small number of 

activities and would only be restricted to that degree for a 

few months. This reasoning is flawed; it confuses the 

disease with its treatment. 

Matczak's doctor did not predict that his epilepsy would 

be cured in five and a half months. He merely prescribed 

certain medication and prohibited specific activities for that 

period. Appendix at 51a. The logical inference is that, after 

that period, the doctor expected Matczak to resume living 

with epilepsy as he had for most of the past three decades. 

The record only indicates that the restrictions and course of 

medication were to last five and a half months. No evidence 

supports the conclusion that Matczak's epilepsy would have 

been cured after that period. 

Furthermore, although the district court correctly 

observed that Matczak can engage in most life activities, it 

neglected to note that he can only do so with the assistance 

of medication. Matczak has lived a relatively normal life in 

spite of his epilepsy, but he has done so by taking

medication to control the condition. Appendix at 30a. 

The ADA itself does not say whether mitigating measures 

should be considered in determining whether a given

impairment substantially limits one or more of the major 

life activities of an individual. Nonetheless, we do receive 

guidance from two other sources. First, the Equal 

Employment Opportunity Commission ("EEOC") has set 

forth interpretive guidelines for the ADA that state, "The 

determination of whether an individual is substantially 

limited in a major life activity must be made . . . without 

regard to mitigating measures such as medicines, or

assistive or prosthetic devices." 29 C.F.R. pt. 1630 App. 

S 1630.2(j). Although we are not bound by the EEOC's 

guidelines, we do afford its interpretation a great deal of 

deference since Congress charged the EEOC with issuing 

regulations to implement the ADA. See 42 U.S.C. S 12116; 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 

Inc., 467 U.S. 837, 844 (1984) (stating deference is 

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"accorded to an [agency's] construction of a statutory 

scheme it is entrusted to administer"). The EEOC's 

guidelines constitute an appendix to the regulations and 

therefore do not command the same degree of deference as 

the regulations themselves. See Appalachian States LowLevel Radioactive Waste Commission v. O'Leary, 93 F.3d 

103, 112-13 (3d Cir. 1996) (noting that interpretive rules, 

which are not subject to public notice and comment 

procedures, merely clarify regulations but are not meant to 

alter legal rights). Still, we must give the EEOC's

interpretation of its own regulations "controlling weight 

unless it is plainly erroneous or inconsistent with the 

regulation[s]." Thomas Jefferson University v. Shalala, 512 

U.S. 504, 512 (1994) (quoting Bowles v. Seminole Rock & 

Sand Company, 325 U.S. 410, 414 (1945)). 

Our second source of guidance is the legislative history of 

the ADA. An examination of that history reveals Congress' 

intent to exclude mitigating measures from assessments of 

disability. One congressional committee noted, "[P]ersons 

with impairments, such as epilepsy or diabetes, which 

substantially limit a major life activity are covered under 

the first prong of disability, even if the effects of the 

impairment are controlled by medication." H.R. R EP. No. 

101-485(II), at 52 (1990) (emphasis added), reprinted in 

1990 U.S.C.C.A.N. 334; see also S. REP . No. 101-116, at 23 

(1989) (committee report stating "whether a person has a 

disability should be assessed without regard to the

availability of mitigating measures . . ."). Thus, the ADA's 

legislative history bolsters the interpretation offered by the 

EEOC's guidelines. That is, disabled individuals who 

control their disability with medication may still invoke the 

protections of the ADA. 

Based on the guidance provided by the EEOC's 

interpretive guidelines and the ADA's own legislative 

history, we hold that the district court erred in deciding 

that Matczak could not be considered "disabled" under the 

ADA. The district court improperly determined the severity 

and permanence of Matczak's epilepsy based on the 

relatively short duration of the restrictions imposed. Also, 

the district court failed to acknowledge that the normalcy of 

Matczak's life had been attained through the use of

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medication. To be clear, we must stress that Matczak 

cannot be considered disabled merely because he is 

epileptic. Some individuals suffer from relatively mild forms 

of epilepsy which cause nothing more than "minor isolated 

muscle jerks" -- so we cannot and do not conclude that all 

epileptics are substantially limited by the impairment. 

Lewis P. Rowland, ed., Merritt's Textbook of Neurology 850 

(9th ed. 1995). We simply hold that whether Matczak is 

disabled or not constitutes a genuine issue of material fact 

better left for resolution by a jury. Matczak's claim that he 

suffered discrimination because he is actually disabled 

should not have been dismissed as a matter of law. 

B. 

Turning to Matczak's alternative claim that Frankford 

discriminated against him because it regarded him as 

disabled, the district court found that this claim could not 

go to trial because Matczak had not presented a prima facie 

case of employment discrimination. The district court based 

this decision on Matczak's failure to show that (1) "his work 

performance met the employer's legitimate job expectations" 

and (2) "employees not in the protected class were treated 

more favorably." Matczak, 950 F. Supp. at 697. 

When considering ADA cases in which the employee 

alleges the reasons for dismissal serve as pretext for the 

employer's unlawful discrimination, we derive our analytical 

framework from the Supreme Court's opinion in McDonnell 

Douglas Corporation v. Green, 411 U.S. 792 (1973). See, 

e.g., Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 156 

n.3 (3d Cir. 1995) (employing McDonnell Douglas framework 

in review of ADA claim). According to that framework, the 

employee must first prove "by the preponderance of the 

evidence a prima facie case of discrimination." Id. Next, if 

the employee presents a prima facie case, the employer 

must "articulate some legitimate, nondiscriminatory reason 

for the employee's [termination]." McDonnell Douglas, 411 

U.S. at 802. Finally, if the employer articulates such a 

reason, the employee must have an opportunity to prove 

that the proffered reason for termination "was in fact 

pretext." Id. at 804. 

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In applying the McDonnell Douglas framework to this

case, the dispositive issue becomes whether the two

elements the district court found lacking are necessary to 

present a prima facie case of employment discrimination. 

Under McDonnell Douglas, a prima facie case has four 

general elements: (1) the plaintiff is a member of a 

protected class; (2) the plaintiff was qualified for the job; (3) 

the plaintiff was terminated despite those qualifications; 

and (4) after the termination, the job remained open and 

the employer sought applicants with the plaintiff's

qualifications. 411 U.S. at 802. Yet, the McDonnell Douglas 

Court cautioned that there is no rigid formulation of a 

prima facie case and the requirements may vary with

"differing factual situations." 411 U.S. at 802 n.13. Accord 

Waldron v. SL Industries, Inc., 56 F.3d 491, 494 n.3 (3d Cir. 

1995). Therefore, we cannot enumerate every possible 

element of a prima facie case due to the factual vagaries 

that distinguish all cases. Nonetheless, we can determine 

whether specific elements are required in every prima facie 

employment discrimination case. Turning to the two 

elements mentioned by the district court, an examination of 

the case law reveals that neither element is required to 

present a prima facie case. 

The first element the district court found lacking was 

satisfaction of the employer's expectations. Determining 

whether Matczak satisfied his employer's expectations is, by 

its very nature, a subjective assessment. Obviously, we 

cannot evaluate an employer's expectations to see if they 

have been satisfied as we can objective measures such as, 

say, educational requirements. In light of this fact, our past 

rulings prevent satisfaction of an employer's expectations 

from being a requisite element of a prima facie employment 

discrimination case. We have held that "while objective job 

qualifications should be considered in evaluating the 

plaintiff 's prima facie case, the question of whether an 

employee possesses a subjective quality . . . is better left to 

the later stage of the McDonnell Douglas analysis." Weldon 

v. Kraft, 896 F.2d 793, 798 (3d Cir. 1990). The rationale 

behind this position is that "subjective evaluations `are 

more susceptible of abuse and more likely to mask 

pretext' " and, for that reason, are better examined at the 

pretext stage than at the prima facie stage. Id. (quoting 

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Fowle v. C & C Cola, 868 F.2d 59, 64-65 (3d Cir. 1989)). 

Accord Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d 

Cir. 1995). 

The district court found Matczak objectively qualified for 

his position because Frankford "admitted that the essential 

function of [Matczak's] job is that of supervising and that 

. . . task could be done without requiring [Matczak] to 

perform any of the activities prohibited by his doctor." 

Matczak, 950 F. Supp. at 697. At the prima facie stage, the 

district court should have made no further inquiry 

concerning Matczak's qualifications. Once it concluded that 

Matczak was objectively qualified for the job, the district 

court should not have required Matczak to demonstrate 

that his performance met his employer's subjective 

expectations. 

The other element of a prima facie case the district court 

found lacking was favorable treatment of employees outside 

the protected class. Under McDonnell Douglas, evidence of 

favorable treatment outside the protected class is not an 

element of a prima facie case. 411 U.S. at 802. Yet, as 

noted earlier, we have heeded the Court's direction not to 

impose the prima facie requirements woodenly. See 

Waldron, 56 F.3d at 494 n.3 (citing, among others, 

McDonnell Douglas). Unfortunately, a necessary by-product 

of this flexible approach is the absence of clear guidance 

as to whether favorable treatment outside the protected 

class is a necessary element. In several employment

discrimination cases, we have listed such favorable

treatment as an element of a prima facie case.2 See, e.g., 

Sheridan v. E.I. DuPont de Nemours and Company, 100

F.3d 1061, 1066 n.5 (3d Cir. 1996) (en banc) (holding 

plaintiff must show position was filled by someone outside 

protected class), cert. denied, 117 S. Ct. 2532 (1997); 

Weldon, 896 F.2d at 797 (holding plaintiff must show 

"others not in the protected class were treated more 

favorably"); Lawrence, 98 F.3d at 68 (holding plaintiff must 

_________________________________________________________________ 

2. Frankford contends that we have already disposed of this issue in 

Kelly. However, in Kelly, we affirmed a district court's grant of summary 

judgment in an employment discrimination case but did not refer to the 

elements of a prima facie case at all. 

 10 
show replacement by "person sufficiently outside protected 

class to create an inference of discrimination"). However, we 

have also rendered opinions in employment discrimination 

cases without ever mentioning this element as part of a 

prima facie case. See, e.g., Waldron, 56 F.3d at 494 

(holding plaintiff need only show she or he was qualified 

member of protected class who lost position under 

circumstances giving rise to inference of discrimination); 

Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1997) 

(listing only McDonnell Douglas elements of prima facie 

case); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) 

(same). 

Fortunately, we have taken a step towards avoiding any 

potential confusion. In Olson, we held that a prima facie 

case basically comprised the four elements enunciated in 

McDonnell Douglas, i.e., (1) the plaintiff belongs to the 

protected class; (2) the plaintiff was qualified; (3) the 

plaintiff was rejected or fired; and (4) after the rejection or 

firing, the employer sought applicants with the plaintiff's 

qualifications. 101 F.3d at 951. Yet we further held that, as 

"an alternative to the fourth element of the McDonnell 

Douglas scenario," the plaintiff could show that the position 

was filled "with a person not belonging to the protected 

category." Id. By holding that favorable treatment outside 

the protected class is an "alternative" element to a prima 

facie case, we made clear that this element can be present 

but by no means must be present. 

Two points should be noted about Olson. First, the case 

is particularly illuminating because it is the only one in 

which we have discussed this issue explicitly. The 

previously mentioned cases merely list elements of a prima 

facie case, but none addresses in detail whether favorable 

treatment outside the protected class is required for every 

employment discrimination claim. Second, Olson should 

not be read as overruling or even conflicting with any of our 

decisions that list this element as part of a prima facie 

case. Olson simply elucidates the directive of the Supreme 

Court that one prima facie standard cannot apply"in every 

respect to differing factual situations." McDonnell Douglas, 

411 U.S. at 802 n.13. Olson does not suggest that favorable 

treatment outside the protected class is an inappropriate 

 11 
element of a prima facie case. Quite the contrary, Olson 

endorses this element -- but only as an alternative. Thus, 

Olson stands in complete harmony with the cases listing 

such favorable treatment as an element of a prima facie 

case. Accordingly, we hold that the district court erred in 

requiring Matczak to show that employees beyond the

ADA's protection were treated more favorably than he was. 

V. 

Turning to Matczak's claims of negligent and intentional 

infliction of emotional distress, we hold that the district 

court was correct in granting summary judgment in favor of 

Frankford as to these claims. Both claims are state tort 

claims governed by the substantive law of Pennsylvania. 

Cox v. Keystone Carbon Co., 861 F.2d 390, 394 (3d Cir. 

1988). Initially, we must note that Pennsylvania's workers' 

compensation statute provides the sole remedy "for injuries 

allegedly sustained during the course of employment." 

Dugan v. Bell Telephone of Pennsylvania, 876 F. Supp. 713, 

723 (W.D. Pa. 1994) (citing 77 PA. CONS. STAT. ANN. S 481(a)). 

The exclusivity provision of that statute bars claims for 

"intentional and/or negligent infliction of emotional distress 

[arising] out of [an] employment relationship." Id. at 724. 

Even absent the statute, Matczak's claims do not rise to 

the level required for a finding of either negligent or 

intentional infliction of emotional distress. A plaintiff must 

allege some form of bodily harm to maintain a claim of 

negligent infliction of emotional distress. See Simmons v. 

Pacor, Inc., 674 A.2d 232, 238 (Pa. 1996). The only harm 

Matczak claims is that he cries at least once a week since 

he was fired. Appendix at 102a. Crying may be a 

manifestation of emotional distress, but it hardly 

constitutes physical harm. As for the claim of intentional 

infliction of emotional distress, Matczak must show that his 

employer's conduct was of an "extreme or outrageous type." 

Cox, 861 F.2d at 395 (quoting Rinehimer v. Luzerne County 

Community College, 539 A.2d 1298, 1305 (Pa. Super. 

1988)). We have noted that "it is extremely rare to find 

conduct in the employment context that will rise to the level 

of outrageousness necessary to provide a basis for recovery 

for the tort of intentional infliction of emotional distress." 

 12 
Id. (citation omitted). Matczak has alleged conduct which, 

while possibly discriminatory, could not be considered 

"extreme or outrageous." The exclusivity provision of 

Pennsylvania's workers' compensation statute and the fact 

that Matczak's underlying emotional distress claims seem 

without merit indicate the district court's grant of summary 

judgment was proper as to these claims. 

VI. 

For the foregoing reasons, we will affirm the grant of 

summary judgment as to Matczak's claims of negligent and 

intentional infliction of emotional distress. We will reverse 

the grant of summary judgment as to the ADA claims and 

remand to the district court for further proceedings. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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