Attorneys Can still be Sued After Settlement is reached with a Third-Party

            Gorjuice Wrap, Inc. v. Okin, Hollander & De Luca, LLP, N.J. Super. A.D., (2011) is leg al malpractice claim that challenges the Puder Doctrine.  The Puder doctrine prevents a plaintiff from suing past council for damages because the plaintiff took a settlement that was less than the actual damages were worth.

            Here, the Plaintiffs started a new business and they leased property owned by the Talmos, their landlords.  After an unfortunate sequence of events comprised of zoning restrictions and miscommunication, Plaintiffs became behind in their rent. Plaintiffs testified that the rent in arrears was due to the poor condition of the leased property.  Regardless, the Talmos exercised a forcible detainer, where they removed Plaintiffs from the property and indirectly the Talmos took control of Plaintiffs’ personal property.  Plainitffs were unable to obtain their personals because they were no longer allowed on the property. Due to the Plaintiffs’ dilemma they retained the Defendants as council.  While the Defendants were the Plaintiffs’ council, the Talmos re-sold the property to someone else.  The Plaintiffs’ explicit instructions for the Defendants were to secure the return of their personal property. However, despite the Defendants’ knowledge that the Plaintiffs could enter their property and retrieve their personal property, the Plaintiffs weren’t made aware of such knowledge until many months later; and at that point, all the personal property was gone.  Due to these events, Plaintiffs sued Defendants, Talmos, and Talmos’ attorney, who use to be Plaintiff’s attorney before Defendants.  However, the claims against Defendants were barred and Plaintiffs proceeded with their case against Talmos and Talmos’ attorney.  Plaintiffs settled for $250,000.

            However, after that, Plaintiffs pursued their case against Defendants, where alleged lost profits were sought because Plaintiffs were unable to retrieve their personal property. The trial court found this case very similar to the Puder Doctrine, however the New Jersey Superior Court did not agree with the trial court’s ruling.  First, the trial court sided with the Defendant’s account of the events about when knowledge was given to Plaintiffs that they were awarded access to their building.  This is an incorrect ruling because when deciding summary judgment the Judge must construe facts most favorable to the party opposing the judgment.  Therefore, the Superior Court reversed this ruling in favor of Plaintiffs.  Next, the Superior Court found that the Pudor standard didn’t apply either because the Plaintiffs never stated that the settlement they took with the Talmos and Talmos’ attorney was “fair” or “adequate.”

            Although the Plaintiffs survived Summary judgment, it is just the first step. Proving a case for malpractice becomes much more difficult at trial.  Further, it is more than simply showing that an attorney or firm acted negligently; plaintiffs must show that the attorneys were proximate cause of injury and damages are not too speculative.  Here, the Plaintiffs were able to survive summary judgment, but they would have obstacles that would need to be overcome to win the case.

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Not All Actions Against Attorneys require a Certificate of Merit


            Sabella v. Estate of Milides, 992 A.2d 180 is a case about an attorney’s misconduct, in which the trial court denied Appellant’s motion to strike the judgment of non pros.  A judgment of non pros enters judgment in favor of one party because the other has not done something, such as not appeared in Court.  Here, Appellant did not file a certificate of merit, which is required in professional liability case.

            Here, the Appellant acquired a deed from R/T Enterprises, the losing party in a personal injury case, where the plaintiffs were the Abahazys.  However, now the Appellee on behalf of the Abahazys is suing the Appellant for knowingly participating in a fraudulent transfer of property pursuant to the Pennsylvania Uniform Fraudulent Transfer Statute.  Basically, the Appellee is going after more money because of the transfer of property from R/T Enterprises to Appellant.  Additionally, Appellant counterclaims against Appellee, claiming the lawsuit against him is frivolous and without merit. Such a claim would have repercussions for Appellee’s attorney as well.  This claim is the question before the Superior Court of Pennsylvania because the Trial Court upheld Appellee’s motion to quash Appellant’s claim.

            Legal malpractice cases are professional liability cases that require a certificate of Merit.  A legal malpractice case requires that a plaintiff  have a viable cause of action ha dit not been for the actions of the attorney he/she hired.  Here, however, Appellant asserts his claims against Appellee for abuse and wrongful use of the civil proceedings process, as opposing council and not Appellant’s attorney.  Additionally, although Appellant’s claim calls into question Appellee’s professional judgment and legal decisions it does not automatically make it a professional liability claim.  However, the Trial Court disagreed and held that because Appellant’s claim dealt with Appellee’s deviation from professional care that Appellant’s counterclaim was one that required a certificate of merit.

            Ultimately, the Superior Court reversed the Trial Court’s decision. First, the Appellant stated that the Appellee’s activity was one as an “attorney at law,” but not the Appellant’s attorney at law.  Next, the Appellant was not within the narrow scope, third-party beneficiaries, the Court adopted from the Restatement, requiring a certificate of merit (this provision allows third-parties incurring benefits from the attorney’s service to sue for legal practice, but also requires them to provide a certificate of merit).  Finally, the Superior Court agreed with Appellant’s argument that just because his complaint questioned Appellee’s professional conduct, it doesn’t automatically place the case in the professional liability category.

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Have a Well-pleaded Complaint

In Pashak v. Barish, the husbad of the appellant, William Pashak, agreed to settle a negligence case for $100,000 in accordance with advice from his attorney, Marvin Barish, Esq. 450 a2d 67 (1982). The settlement stemmed from an employment action where Mr. Pashak was working on a ship and was injured. Mr. Pashak executed a release and subsequently received the settlement proceeds.

Some time later, Mr. Pashak was notified that, contrary to his attorney’s advice, his statutory compensation benefits would be terminated due to the settlement. Appellant, Dorothy Pashak also learned that she might be precluded from recovering any such benefits as a consequence of her husband’s settlement. In December 1980, appellant commenced an action alleging that through attorney’s malpractice she “has been precluded from ever receiving any statutory compensation benefits.”

The case was dismissed on prelimianry objections by the lower court and the Pennsylvania Superior court agreed with the ruling. The lower court’s reasoning was that the “loss was too conjectural and remote to warrant recovery ina malpractice action.”Further, the court reasoned that “when it is alleged that an attorney has breached his professional obligations to his client, an essential element of thecause of action, whether the action be denominated in assumpsit or trespass, is proof ofactual loss.”

The crux of the argument was that it is generally accepted that an attorney is not liable for any damages which are remote or speculative. The test of whether damages are remote or speculative has nothing to do with the difficulty in calculating the amount, but deals with the more basic question of whether there are identifiable damages. The mere possibility or even probability that the plaintiff will sustain an injury at some future time does not alter the speculative nature of the damage claim or support a cause of action for legal malpractice.  Thus, damages are speculative only if the uncertainty concerns the fact of damages rather than the amount.

Applied to this case, the court found that the amount of Mrs. Pashak’s recovery would depend upon whether she and Mr. Pashak would have any surviving children. However, she had not alleged, and could not amend her complaint to allege, the requisite harm to sustain her cause of action. Accordingly, the appelate court upheld the opinion of the lower court and sustained the preliminary objections and dismissed the complaint.

The lesson here is not to have a well-pleaded complaint before entering a court room, which requires picking the right lawyer to help sue the the former lawyer.

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Known Disabilities Must Be Accommodated

Canteen Corp. v. Pennsylvania, 814 A.2d 805, (Pa. Commonwealth) is an employment discrimination suit. Here, the employer violated the Human Relations Act because the employer failed to accommodate an employee’s disability. The Defendant appealed the Pennsylvania Human Relations Commission’s decision; however, the decision was affirmed by the court.

      The Plaintiff began working for the Defendant in 1985 as an accounting clerk. The Plaintiff’s job entailed filing stacks of documents and carrying folders and envelops that weighed up to five pounds. These tasks required the plaintiff to frequently bend and lift objects.  In 1987, the Plaintiff suffered a back injury that led to surgery and a five-month medical absence from work.  When the Plaintiff returned, she brought a doctor’s note that prevented her from lifting anything weighing 25 pounds or more.  For twelve years this was not a problem because the Plaintiff’s job did not consist of her lifting anything that weighed close to 25 pounds.  However, in 1999 the defendant started cross-training employees to perform other task on top of their daily duties, including lifting 20 pound bags all day long. The Plaintiff was one of those employees.  The Plaintiff expressed her concern of this task due to her disability and she was asked to update her 1987 doctor’s note by the Defendant.  As requested, the Plaintiff obtained the note and was advised by the doctor to avoid any lifting or bending activities, including lifting a pencil or paper.  As a result of the updated Doctor’s note, the plaintiff was terminated because the Defendant did not have a job for her to perform safely.

      Normally, an employee must satisfy the McDonnell Douglas test to establish employment discrimination. This is a four-prong test: 1) employee belongs to protected minority 2) applied and was qualified for a job for which the employer was seeking applicants 3) was rejected despite being qualified for the position 4) after the rejection, the position remained open and the employer continued to seek applicants from person of complaint’s qualifications.  However, the McDonnell Douglas test is unnecessary if the plaintiff has proof that the termination was a result of his/her disability.  Here, the Plaintiff did have such proof, so the Defendant’s argument was denied.

      Finally, once the employee informs the employer of his/her disability it is the employer’s responsibility to begin the interactive process to determine a solution.  Here, the plaintiff’s updated doctor’s note constituted informing the employer. Then the court provided a number of options the Defendant could have exercised that fulfilled the interactive process. For example, the Defendant could have contacted the physician who wrote the note to determine exactly what activities the employee could or couldn’t perform.  Ultimately, the employer violated its duty in this instance and the plaintiff was awarded six months pay plus interest.

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Tax Bureau’s Job to make a reasonable effort to identify owners

In Husak v. Fayette County Tax Claim Bureau, 61 A.3d 302 (Pa Commw.) the trial court was correct in setting aside the tax sale. In this case, the Plaintiffs’ property was foreclosed in February 2006; Fannie Mae purchased the property at a sheriff’s sale and recorded the sheriff’s deed. However, the plaintiffs’, while still residing on the property, repurchased it from Fannie Mae. At the time of repurchase, Fannie Mae executed a quitclaim deed. A quit claim deed is when the grantor transfers all of his/her interest to the grantee. Any defects associated with the property, such as taxes, now become the grantee’s problem. However, the Plaintiffs’ never recorded the deed because the Plaintiffs’ counsel wanted a notarized deed. Frannie Mae did not send a notarized deed to the Plaintiffs until March 2011, at which time the deed was promptly recorded.
During the approximate five years that Fannie Mae neglected to provide the plaintiffs with a notarized deed, the Defendants sent tax notices to Fannie Mae. However, these taxes were not paid for in 2008, 2009, and 2010. All tax notices were sent to Fannie Mae and returned with a receipt from one “J.Pierce.” As a result of failing to pay taxes, the Defendant recorded a deed for the subject property to Purchaser in November 2010. The Plaintiffs filed a petition to set aside this tax sale.
The court held that the Defendant’s must employ common sense when determining the person’s responsible for the taxes. Although the Plaintiffs’ didn’t technically own the property because a deed wasn’t filed, the Defendant is still required to seek out the bona fide owners. Here, the court was not persuaded by the Defendant’s argument that the Defendant provided notice. Instead, the court questioned why the Defendant never inquired who “J. Pierce” was and if he even worked for Fannie Mae. A signature on a receipt must belong to someone authorized by owner to accept this certified mail. The Plaintiffs never provided Fannie Mae, such authorization. Further, a red-flag should have been raised when on the Record of Deeds it states Fannie Mae as the owner of the property, yet the property had a tended field of corn and crops. Since the Plaintiffs’ openly possessed the property and the Defendants did not conduct their due diligence of identifying the true owner, the tax sale was properly set aside.

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Products Liability in New Jersey

Knoster v. Ford Motor Company 2006 WL 2561234 (C.A.3 (N.J.)) is case where the Plaintiff filed claims under both the New Jersey Product Liability Act (“PLA”) and the New Jersey Consumer Fraud Act. Specifically under the PLA, the plaintiff filed a failure to warn and a design-defect claim. The District Court dismissed the consumer fraud claim and entered judgment in favor of the Defendant based on the jury’s verdict. The Plaintiff appealed on a variety of claims.
In 1999, the Plaintiff’s family was driving home from a family picnic during the Fourth-of-July weekend. The Plaintiff’s wife was driving their Ford Taurus. As the vehicle approached an intersection, the Plaintiff’s wife downshifted; instead of the slowing down, the vehicle accelerated toward the intersection. The plaintiff’s wife attempted to slow the car the down by slamming on the breaks; however, her efforts were too late and the car slammed into stone farm building, where the plaintiff lost his life.
Typically, failure-to-warn cases are successful when the Defendant fails to warn of a known danger. Here, the jury inquired whether the failure-to-warn claim should be based on the design of the cruise control system or the event of a sudden acceleration no matter the cause. The court instructed the jury to focus their inquiry solely on the design of the cruise control system. However, the court was mistaken in their response; a failure-to-warn claim does not depend on the design defect. Therefore, the duty to warn involved the danger generally, not a danger with any specific cause.
Further, this Court expanded the scope of a design defect claim. Usually, a design defect claim requires a plaintiff to provide an alternative design to show that the Defendant’s failure to use the alternative design made the Defendant’s current product not reasonably safe. However, this court cited a New Jersey Supreme Court case to reverse the District Court’s holding and allow the plaintiff’s to argue res ipsa loquitar, the defect speaks for itself. Under the res ipsa loquitar doctrine, the plaintiff must show: 1) the harm was of a kind that ordinarily occurs as a result of a product defect AND 2) the harm was not solely the result of causes other than product defect existing at the time of sale or distribution. Here, the plaintiff’s testimony, the car suddenly accelerated, was enough evidence for an inference of defectiveness.
Finally, the plaintiff’s appealed on the District Court’s dismissal of the consumer fraud claim because the plaintiff’s argued it was separate from the PLA claim. The Court of Appeals agreed with the plaintiff. Physical damage to the product itself is not included in products liability claims. Therefore, in this case, the Plaintiff’s were allowed to sue under consumer fraud to seek damages for the harm caused to the vehicle.

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Title VII Extends to Third-Parties

In Thompson v. North American Stainless, the Court held that third-party retaliation claims are permitted under Title VII of the Civil Rights act. In this action, Thompson’s fiancé filed a sex discrimination charge against North American Stainless (NAS). After Thompson’s fiancé filed the charge, NAS promptly fired Thompson. Thompson then brought a claim under Title VII of the Civil Rights Act, alleging that NAS fired him because NAS wanted to retaliate against his fiancé for filing her sex discrimination charge.
The District Court held that Thompson did not have a claim under Title VII because Title VII’s retaliation provision only protected parties that had engaged in activity that led to the discrimination. The Court reversed, however, and remanded for trial on the merits, reasoning that if Thompson’s allegations were true then NAS did in fact terminate him out of retaliation for his fiancé’s conduct. The Court held that, according to Burlington N. &S.F.R. Co. v. White, Title VII’s anti-retaliation provision must be read to cover a broad range of employer conduct.
Title VII prohibits any employer action that might dissuade a reasonable worker from making a discrimination charge and, accordingly, a reasonable worker in Thompson’s fiancé’s position would surely be dissuaded if her fiancé would be fired when she attempted to make a claim. Thus, Title VII is not limited to merely the person who was engaged in the acts that compromise of the discrimination claim, but also extends to anyone who has been injured by the unlawful employer retaliation.
Therefore, in the employment discrimination context, an employer must be mindful of why they decide to terminate an employee, because Title VII’s anti-retaliation claim is construed broadly to the benefit of the aggrieved employee.

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Be Careful What You Plead For

In MARX v. GENERAL REVENUE CORP., 668 F. 3d 1174 (2013), the United States Supreme Court affirmed a decision that was upheld by the Tenth Circuit. The District Court had ordered the losing plaintiff, Marx (who had defaulted on her student loans) to pay the defendant’s partial court and attorneys fees. In this case Marx had claimed that her creditor, General Revenue Corporation (GRC) was harassing her via phone calls and letters to her employer, and falsely claiming to garnish half of her wages. The decision, which was a matter of statutory interpretation, will help to provide other circuits with guidance, however, it has sparked an interesting policy concern.

The FDCPA is a consumer protection statute that prohibits certain abusive, deceptive, and unfair debt collection practices. The FDCPA’s private-enforcement provision, §1692k, authorizes any aggrieved person to recover damages from “any debt collector who fails to comply with any provision” of the FDCPA. (§1692k(a)). Here, after Marx lost her case, the District Court found that, although the plaintiff did not act in bad faith or for the purpose of harrassment, that Marx was partially responsible for GRC’s court costs and attorneys fees. This decision was granted pursuant to FRCP 54(d)(1), which gives the court discretion to award prevailing defendants costs “unless a federal statute … provides otherwise.” Marx appealled the decision, arguing that the Courts discretion under Rule 54 was diplaced in FDCPA cases by 15 USC 1692k(a)(3) which provides that a court may award the defendant reasonable fees after a finding that the action was brought in bad faith and for the purpose of harrassment.

Statutory analysis hinges on whether 1692’s allowance for costs creates a negative implication that costs are unavailable under any other circumstances. The context of 1692 indicates that Congress did not intend for 1692 to forcelose courts from awarding costs under Rule 54. The Court also commented on the long recognition of judicial power to award attorneys fees. In addition, the language of the statute indicates that costs may be recovered if the court finds bad faith, but makes no explicit mention to remove the ability to recover under other circumstances or to limit the ability to recover for only bad faith claims. Therefore, 1692 does not displace Rule 54, and both can be viewed as working together. In one instance, 1692 gives authority to award fees for FRCPA actions brought in bad faith, and alternatively, Rule 54 gives judges the general authority to award fees in any circumstance that they see fit.

Is this interpretation fair? The language of the rules clearly state that the court has discretion to award costs to litigants, and there is no explicit wording that 1692 overrides Rule 54. But because the section was written only for credit fraud, doesn’t it seem reasonable that Congress intended to limit court fees for harrassment claims in this context, recognizing that the type of plaintiff is generally always financially at risk?

The decision highlights the importance of gathering good facts and presenting them in a favorable manner. Prior to bringing a suit, even if no bad faith exists, a plaintiff must engage in a cost-benefit analysis to determine whether the risk of losing will come with the risk of facing a monetary penalty. Will the courts discretion have an unpleasant chilling effect? Should Section 1692 displace Rule 54 in the context of creditors since the plaintiff is likely already in financial woes? In practice, Rule 54 is designed to ferret out unmeritorious claims, so that individuals will not use the legal system as a sword to harass and attack others. Conversely, Section 1692 is designed to protect debtors from the abusive and unfair practices of debt collectors, and assumes that the individual filing a claim is already low-income and, thus, lacks the ability to otherwise bring actions.

The effect of this decision forces plaintiffs who are already poor to choose between bringing a claim that they believe has merit, and being punished for their good faith claims. In effect, one may feel as if their avenues to relief are being closed from bringing claims that have a fair chance of being successful. In this arena where the courts are awarded expansive discretion, the best approach one can take is simply hightening their pleading requirements and portraying the plaintiff as financially drained in order to avoid being further penalized.

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Does Retirement really mean Discrimination?

            Bucholz v. Victor Printing, Inc., 2012 WL 2522969 (D. N.J. 2012) is a case which analyzes the New Jersey Law Against Discrimination (“LAD”). Specifically, Bucholz, the Plaintiff accused his former employer of discrimination on the basis of age. The Defendant, a printing shop, filed a motion for summary judgment following the filing of the complaint, and preliminary discovery.

The Plaintiff was hired in 1986 by the printing shop. When he was first hired in 1986, the Plaintiff served as a printing press operator. After 5 years, he was promoted to foreman. Eventually, technology made the Plaintiff’s job more and more obsolete. Thus, when Defendant reached age 63, in 2006, the Defendants offered him a different job as a driver for the shop. In recognition of his long service, the Defendants paid Plaintiff a much higher wage than comparable jobs. Additionally, they underwent some rough financial times but chose to retain Plaintiff who was over 65 during the rough period.

In 2009, shortly before termination, Defendant started to receive numerous complaints concerning Plaintiff’s driving. There were accusations the Plaintiff had lost his temper, hit parked cars, and driven in a generally unsafe manner. Finally, in October 2009, Plaintiff was terminated, and then replaced with a 22 year old driver. However, prior to being terminated, Defendants asked Plaintiff on several occasions what his plans were for retirement. Defendants alleged they asked questions of retirement because of a change the Plaintiff made to his benefit plan. The Plaintiff believed Defendants were motivated by age discrimination, and thus brought suit in December 2010.

In order to prove age discrimination under the LAD, a plaintiff must show his age played a role in the termination; and that it had a determinative role in the outcome of that process. The discrimination must be intentional to be actionable, but may be proven through either direct or circumstantial evidence. Plaintiff, in this case was asserting he possessed direct evidence, which is what the Court was reviewing in the motion for summary judgment. Plaintiff’s alternative argument however, pushed for use of the burden-shifting circumstantial case as well.

The court defined direct evidence as evidence produced which if true, demonstrates hostility towards a Plaintiff’s class, as well as a connection between the employment decision in a case and the hostility. In simple terms, Bucholz was required to show the Defendants were hostile towards older workers, and his termination was based on this hostility. The court did not find that the questions on retirement were enough direct evidence. Rather, the Court acknowledged that employers have an interest in knowing if their employees intend to leave a position via retirement. This required the court to determine if Plaintiff possessed enough evidence to reach the lower burden of prima facie.

Under circumstantial evidence discrimination, a Plaintiff must show membership in a protected class; his job performance met the employer’s expectation; he was fired; and the employer sought someone to perform the same work after he left. The Court enunciated this standard then analyzed whether the Company had a nondiscriminatory reason for firing Plaintiff. As the last step in burden-shifting, the Court then stated a Plaintiff does receive the opportunity to show the reason stated by the employer is pretext, or a cover-up.

In this case, there was no dispute Plaintiff was protected by virtue of age, and that the company replaced him following termination. The crux of the case was whether Plaintiff was performing job to employer’s expectations. The second prong of this method of production requires only review of Plaintiff’s objective reasons. Thus, whether or not the Plaintiff’s performance was shown to be negative based on reviews, the Court accepted he was performing to general expectations since he had been a driver for 4 years. The debate about performance according to the Court is best left for the pretextual and non-discriminatory reason stages. Thus, the Court then considered the non-discriminatory reason of Plaintiff’s poor driving record, as enough for the company to meet its burden of production to shift the case back to Plaintiff.

Thus, the final step was the Plaintiff had to show the driving complaints were pretext, or code-words for the company to fire him based on age. On this piece of information, Plaintiff put forward evidence of a dispute that the lay-off was originally not going to happen. Rather, he went in to discuss the car accident and driving complaints, and that Defendant was reducing his workload. The Plaintiff also alleged the defendant stated if business picked up, he would be rehired for three days a week. The Court viewed a viable dispute because of the lack of documentation on the company’s part in showing Plaintiff was laid off for driving transgressions. This was especially so, where a younger employee was hired, which meant the Plaintiff could meet the burden-shifting requirements.

The Court did do something interesting in holding the case over, and commented there was not a strong age discrimination suit. Plaintiff did enough to pass summary judgment, which in the eyes of the Court meant reaching a fairly low ceiling. As a result, the case went through, but the Court seemed to indicate it did not view the case as coming with a lot of merits. It is strange that a court would comment on a case’s merits when conversation should have been limited to the issues at bar. This opinion thus created some ambiguity regarding whether the dispute existed, ultimately finding a weak underlying case, but a viable dispute. It is unknown what the final disposition of this case was, and whether any impact was created by the Judge’s opinion. However, it does show a very straight-forward version of burden shifting, which is what should be taken away from this case.

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An off-color comment does not in itself create a lawsuit.

Del Tinto v. Club Com, LLC et al., 2012 WL 5615257, (W.D.Pa. Nov. 15 2012) is an employment discrimination case. The case examines what is required for a plaintiff to meet the “regarded-as” prong of disability as well as what is necessary for hostile work environment claims. The case came before the court on summary judgment by the defendants, meaning the Court was tasked with deciding whether there were any genuine issues of material fact.

The Plaintiff filed a complaint after learning another employee referred to her as a “retard.” Both parties agreed that in 2011, the Plaintiff worked for the defendant as a local data entry sales employee. Her primary job duty was to input data from advertising sales contracts into a computer system maintained by Defendants. She worked for the defendant from February 2011 through September of 2011, at which time she resigned.

The plaintiff had no actual learning disability. Her allegation of disability arose after she learned that another employee had called her a “freaking retard” following a disagreement over a sales contract. The plaintiff took particular offense to this term because her niece and cousin both suffered from varied developmental disorders. The employee who made the comment was not the plaintiff’s supervisor and did not work anywhere near the plaintiff.  When the plaintiff learned of the insult from another employee, she informed her supervisor about the insult. There was no evidence submitted which showed the plaintiff ever complained to any other management-level employees. The Plaintiff’s supervisor, and several other employees, including the one who had insulted the Plaintiff later held a meeting concerning the conflict. The plaintiff did not attend this meeting.

On Septembr 13, the Plaintiff did resign from the defendant. The only connection between the employee and Plaintiff was an email with a contract number that Plaintiff had requested from a different employee.

Since the Plaintiff brought the complaint as a “regarded-as” disability the Court had to define not only disability but also “regarded-as.” The term disability under theADAincludes people with physical or mental impairment substantially limiting one or more major life activity; a record of such impairment; or being regarded as having such impairment. Here the plaintiff admitted there was no disability which is also why the court went straight to “regarded-as.”

In order to be regarded as having a disability, a plaintiff must prove the defendants mistakenly believed that she had an impairment or that the plaintiff had a non-limiting impairment the defendants mistakenly believed substantially limited a major life activity or has no such impairment but is treated by a defendant as having a substantially limiting impairment. Plaintiff bears the burden of showing specific, record facts that her employer believed her to be disabled.

This case involved another employee believing her to be mentally disabled. The employee was not her supervisor, but rather an employee who the Plaintiff came in contact with on an as-needed basis. The Court felt the employer did nothing to show they believed the employee was mentally disabled, but the Plaintiff termed the discrimination as hostile work environment.

The court believed this case was not even prima facie hostile work environment. In such a case, the Plaintiff must show first they have a disability for a hostile work environment claim. Under hostile work environment claims, a Plaintiff must show they are a qualified individual with a disability under the ADA; was subject to unwelcome harassment; the harassment was based on a disability or request for accommodation; the harassment created an abusive work environment; and the employer knew or should have known of the harassment and failed to take any remedial action.

Because the hostile work environment claim requires a plaintiff to first be disabled, the employee /plaintiff was thus unable to move forward with the claim. Additionally, the court’s interpretation of theADAwould determine whether the state-related PHRA claim was successful. Since theADAdetermination was against the Plaintiff, so to the PHRA interpretation went against the plaintiff. Based on this analysis, the court ruled against the Plaintiff.

This case shows the danger in not understanding the case-law. This plaintiff was doomed to fail from the initiation of the lawsuit because she was not disabled. Thus her only chance of success was to succeed under the “regarded-as” prong of the ADA. When the insult came from a non-managerial supervisor, and there was a resignation it further made the case a difficult one for the plaintiff.

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