                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             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Precedential or Non-Precedential: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


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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

                                2
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).

                               3
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

                               4
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.

                               5
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

                               6
"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 Low-
Level 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

                               7
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.

                               8
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

                               9
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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