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. e du/thir dc ir c uit_1997/262Filed 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 AppellantMarvin 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 epilepti c, who controls his disability with medication, can ma intain an employment discrimination action without showing he satisfied his employer's expectations or showing fa vorable treatment of non-disabled employees by the employer . We hold that such an individual can present a prima fa cie case of employment discrimination and therefore should s urvive 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 fo r defendant-appellee Frankford Candy and Chocolate Company ("Frankford") in April 1993 as a Maintenanc e Supervisor. After about ninety days, Matczak was reassigned to the position of Building Maintenance Supervisor. The duties of this position included ma intaining Frankford's facilities and supervising two mechanic s. In November 1993, Matczak suffered an epileptic seizur e at work and was hospitalized for seventeen days. He ha d been

2diagnosed with epilepsy almost thirty years earlier but had

controlled the condition with medication and had ne ver experienced a seizure prior to this incident.

Matczak's doctor put him on a new medication for ab out 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 restr ictions
on Matczak's activities. The note stated: "Mr. Matc zak is under my care and cannot at present work around mov ing 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.]" Ap pendix at 51a. Upon his return to work in December, Frankford placed Matczak on restricted duty and assigned vari ous tasks to him which were not prohibited by his docto r (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 bec ause "he did not adequately perform the tasks he was given a fter he returned to work" and (2) Matczak was fired because "business was slow . . . and his job was being elim inated." Matczak v. Frankford Candy and Chocolate Company, 9 50 F. Supp. 693, 695 (E.D. Pa. 1997). Matczak claims t hese explanations serve as pretext for the real reason h e was fired: because he has epilepsy.

Matczak brought suit against Frankford in district court for alleged violations of the Americans with Disabi lities Act ("ADA"), 42 U.S.C. S 12101 et seq., and the Pennsyl vania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. AN N. S 951 et seq.1 Matczak also made claims of negligen t and
intentional infliction of emotional distress. Pursu ant to Federal Rule of Civil Procedure 56(c), Frankford mo ved for summary judgment as to all claims. The district cou rt granted the motion, finding that (1) Matczak was no t actually disabled under the ADA; (2) even if a jury considered Matczak "regarded as" disabled by his em ployer,

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1. Although we will only discuss the ADA claim, any analysis applied to the ADA claim applies equally to the PHRA claim. Ke lly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996).

3he had not presented requisite elements of a prima facie

case of employment discrimination; and (3) the negl igent
and intentional infliction of emotional distress cl aims were
without merit.

II.

The ADA prohibits discrimination by an employer "against a qualified individual with a disability b ecause of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge o f employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 4 2 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 su ch an impairment." 42 U.S.C. S 12102(2). A "qualified ind ividual with a disability" is an individual "with a disabil ity who, with or without reasonable accommodation, can perfo rm the essential functions of the employment position that
such individual holds or desires." 42 U.S.C. S 1211 1(8).

Before the district court, Matczak claimed protecti on under the ADA because his epilepsy is a physical impairment substantially limiting major life activi ties. Alternatively, Matczak claimed that, even if his im pairment is not substantially limiting, Frankford regarded h im 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 em ployees outside the ADA's protected class more favorably.

The district court acknowledged that Matczak's epil epsy would constitute a physical impairment under the AD A but found that the impairment did not substantially lim it 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 al so concluded that the impairment could not be "severe or permanent" because the condition was only to last "approximately six months." Id. However, noting tha t a jury could conclude Matczak was "regarded as" disabled b y

4Frankford, the district court turned to Matczak's p rima

facie case of discrimination. Id. at 697. The distr ict court determined that a prima facie case required a showi ng that the employer's legitimate expectations were met and that employees outside the protected class received favo rable treatment. Id. Since Matczak did not present eviden ce of these two elements, the district court ruled that h e did not present a prima facie case of employment discrimina tion.
Id. The district court also found no evidence to su pport Matczak's claims of negligent and intentional infli ction of emotional distress. Id. Based on these conclusions, the district court granted Frankford's motion for summa ry 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 Electri c Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). We ap ply the same test the district court should have applied in the first instance. Lawrence v. National Westminster Bank, Ne w Jersey, 98 F.3d 61, 65 (3d Cir. 1996). We must ther efore determine whether the record, when viewed in the li ght most favorable to Matczak, shows that there is no g enuine
issue of material fact and that Frankford was entit led 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 3 26, 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 no t claim to be actually disabled under the ADA; and (2) Matc zak could claim to be "regarded as" disabled but did no t present a prima facie case of discrimination. We will addre ss each
of these assessments in turn.

5A.

The district court determined that Matczak's impair ment did not substantially limit major life activities b ecause he was only restricted from participating in a small n umber of activities and would only be restricted to that deg ree for a few months. This reasoning is flawed; it confuses t he
disease with its treatment.

Matczak's doctor did not predict that his epilepsy would be cured in five and a half months. He merely presc ribed certain medication and prohibited specific activiti es for that period. Appendix at 51a. The logical inference is t hat, 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 wou ld have been cured after that period.

Furthermore, although the district court correctly observed that Matczak can engage in most life activ ities, it neglected to note that he can only do so with the a ssistance of medication. Matczak has lived a relatively norma l life in spite of his epilepsy, but he has done so by taking medication to control the condition. Appendix at 30 a.

The ADA itself does not say whether mitigating meas ures should be considered in determining whether a given impairment substantially limits one or more of the major life activities of an individual. Nonetheless, we d o receive guidance from two other sources. First, the Equal Employment Opportunity Commission ("EEOC") has set forth interpretive guidelines for the ADA that stat e, "The
determination of whether an individual is substanti ally 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. 163 0 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 issu ing regulations to implement the ADA. See 42 U.S.C. S 1 2116; Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984) (stating deference i s

6"accorded to an [agency's] construction of a statut ory

scheme it is entrusted to administer"). The EEOC's guidelines constitute an appendix to the regulation s and therefore do not command the same degree of deferen ce 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 interpretiv e 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. Shal ala, 512 U.S. 504, 512 (1994) (quoting Bowles v. Seminole Ro ck & Sand Company, 325 U.S. 410, 414 (1945)).

Our second source of guidance is the legislative hi story of the ADA. An examination of that history reveals Con gress' intent to exclude mitigating measures from assessme nts of disability. One congressional committee noted, "[P] ersons with impairments, such as epilepsy or diabetes, whi ch substantially limit a major life activity are cover ed 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), reprint ed in 1990 U.S.C.C.A.N. 334; see also S. REP . No. 101-11 6, 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 off ered by the EEOC's guidelines. That is, disabled individuals wh o 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 legislati ve history, we hold that the district court erred in d eciding
that Matczak could not be considered "disabled" und er the ADA. The district court improperly determined the s everity and permanence of Matczak's epilepsy based on the relatively short duration of the restrictions impos ed. Also, the district court failed to acknowledge that the n ormalcy of Matczak's life had been attained through the use of

7medication. To be clear, we must stress that Matcza k

cannot be considered disabled merely because he is epileptic. Some individuals suffer from relatively mild forms of epilepsy which cause nothing more than "minor is olated muscle jerks" -- so we cannot and do not conclude t hat all epileptics are substantially limited by the impairm ent. Lewis P. Rowland, ed., Merritt's Textbook of Neurol ogy 850 (9th ed. 1995). We simply hold that whether Matczak is disabled or not constitutes a genuine issue of mate rial fact better left for resolution by a jury. Matczak's cla im that he suffered discrimination because he is actually disa bled
should not have been dismissed as a matter of law.

B.

Turning to Matczak's alternative claim that Frankfo rd discriminated against him because it regarded him a s disabled, the district court found that this claim could not go to trial because Matczak had not presented a pri ma facie case of employment discrimination. The district cou rt based this decision on Matczak's failure to show that (1) "his work performance met the employer's legitimate job expec tations" 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 a nalytical framework from the Supreme Court's opinion in McDon nell 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 fra mework in review of ADA claim). According to that framewor k, 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 emplo yer must "articulate some legitimate, nondiscriminatory reason for the employee's [termination]." McDonnell Dougla s, 411 U.S. at 802. Finally, if the employer articulates s uch a reason, the employee must have an opportunity to pr ove that the proffered reason for termination "was in f act pretext." Id. at 804.

8In applying the McDonnell Douglas framework to this

case, the dispositive issue becomes whether the two elements the district court found lacking are neces sary to present a prima facie case of employment discrimina tion. Under McDonnell Douglas, a prima facie case has fou r general elements: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified fo r the job; (3) the plaintiff was terminated despite those qualific ations; and (4) after the termination, the job remained ope n 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.1 3. Accord Waldron v. SL Industries, Inc., 56 F.3d 491, 494 n. 3 (3d Cir. 1995). Therefore, we cannot enumerate every possibl e element of a prima facie case due to the factual va garies that distinguish all cases. Nonetheless, we can det ermine whether specific elements are required in every pri ma facie employment discrimination case. Turning to the two elements mentioned by the district court, an examin ation of the case law reveals that neither element is requir ed to present a prima facie case.

The first element the district court found lacking was satisfaction of the employer's expectations. Determ ining whether Matczak satisfied his employer's expectatio ns is, by its very nature, a subjective assessment. Obviously , we cannot evaluate an employer's expectations to see i f they have been satisfied as we can objective measures su ch as, say, educational requirements. In light of this fac t, our past rulings prevent satisfaction of an employer's expec tations from being a requisite element of a prima facie emp loyment discrimination case. We have held that "while objec tive job qualifications should be considered in evaluating t he plaintiff 's prima facie case, the question of whet her an employee possesses a subjective quality . . . is be tter left to the later stage of the McDonnell Douglas analysis." Weldon v. Kraft, 896 F.2d 793, 798 (3d Cir. 1990). The rat ionale behind this position is that "subjective evaluation s `are more susceptible of abuse and more likely to mask pretext' " and, for that reason, are better examine d at the pretext stage than at the prima facie stage. Id. (q uoting

9Fowle v. C & C Cola, 868 F.2d 59, 64-65 (3d Cir. 19 89)).

Accord Sempier v. Johnson & Higgins, 45 F.3d 724, 7 29 (3d Cir. 1995).

The district court found Matczak objectively qualif ied for his position because Frankford "admitted that the e ssential 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 doc tor." Matczak, 950 F. Supp. at 697. At the prima facie st age, the district court should have made no further inquiry concerning Matczak's qualifications. Once it conclu ded that Matczak was objectively qualified for the job, the district court should not have required Matczak to demonstra te that his performance met his employer's subjective expectations.

The other element of a prima facie case the distric t court found lacking was favorable treatment of employees outside the protected class. Under McDonnell Douglas, evide nce 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-p roduct of this flexible approach is the absence of clear g uidance as to whether favorable treatment outside the prote cted 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) (holdi ng plaintiff must show position was filled by someone outside protected class), cert. denied, 117 S. Ct. 2532 (19 97); Weldon, 896 F.2d at 797 (holding plaintiff must sho w "others not in the protected class were treated mor e favorably"); Lawrence, 98 F.3d at 68 (holding plain tiff must

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2. Frankford contends that we have already disposed of this issue in Kelly. However, in Kelly, we affirmed a district co urt's grant of summary judgment in an employment discrimination case but d id not refer to the elements of a prima facie case at all.

10show replacement by "person sufficiently outside pr otected

class to create an inference of discrimination"). H owever, we have also rendered opinions in employment discrimin ation cases without ever mentioning this element as part of a prima facie case. See, e.g., Waldron, 56 F.3d at 49 4 (holding plaintiff need only show she or he was qua lified member of protected class who lost position under circumstances giving rise to inference of discrimin ation); Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1997) (listing only McDonnell Douglas elements of prima f acie 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 enunciat ed 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 pla intiff's qualifications. 101 F.3d at 951. Yet we further hel d that, as
"an alternative to the fourth element of the McDonn ell Douglas scenario," the plaintiff could show that th e position was filled "with a person not belonging to the prot ected 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 fa vorable treatment outside the protected class is required f or every employment discrimination claim. Second, Olson sho uld 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 f avorable treatment outside the protected class is an inappro priate

11element 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 lis ting such favorable treatment as an element of a prima f acie 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 h e was.

V.

Turning to Matczak's claims of negligent and intent ional infliction of emotional distress, we hold that the district court was correct in granting summary judgment in f avor of
Frankford as to these claims. Both claims are state tort claims governed by the substantive law of Pennsylva nia. Cox v. Keystone Carbon Co., 861 F.2d 390, 394 (3d C ir. 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. Sup p. 713, 723 (W.D. Pa. 1994) (citing 77 PA. CONS. STAT. ANN. S 481(a)). The exclusivity provision of that statute bars clai ms for "intentional and/or negligent infliction of emotion al distress [arising] out of [an] employment relationship." Id. at 724.

Even absent the statute, Matczak's claims do not ri se to the level required for a finding of either negligen t or intentional infliction of emotional distress. A pla intiff must allege some form of bodily harm to maintain a claim of negligent infliction of emotional distress. See Sim mons v. Pacor, Inc., 674 A.2d 232, 238 (Pa. 1996). The only harm
Matczak claims is that he cries at least once a wee k 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 inte ntional 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."

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

while possibly discriminatory, could not be conside red "extreme or outrageous." The exclusivity provision of Pennsylvania's workers' compensation statute and th e fact that Matczak's underlying emotional distress claims seem without merit indicate the district court's grant o f 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 negligen t and
intentional infliction of emotional distress. We wi ll reverse the grant of summary judgment as to the ADA claims and remand to the district court for further proceeding s.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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