DALZELL, District Judge.
Before us in this discrimination action are the parties' motions for partial summary judgment on the following stipulated question:
Jt. Stip. for PSJ. For the reasons elaborated below, we hold that the ADA does not provide a remedy for alleged injuries or exacerbation of such injuries resulting from conduct in violation of the ADA. We will therefore grant Verizon's motion for partial summary judgment as to Count IV and its prayer for relief, insofar as Aponik seeks damages for the bodily injury he alleges Verizon's action caused.
In general, summary judgment is warranted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). A party moving for summary judgment bears the burden of proving no genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Ordinarily, a factual dispute is "genuine" if it turns on "evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. at 248, 106 S.Ct. 2505. But here the parties have, as noted, stipulated to the question before us, which is a matter of law involving interpretation of the ADA, 42 U.S.C. § 12101 et seq. Accordingly, there are no genuine issues of material fact before us, only a dispute over the reach of that remedial statute. The standard for a motion for partial summary judgment is identical to the standard for summary judgment motions. See Fed. R.Civ.P. 56(a).
When both parties move for summary judgment, our task is no different. As our Court of Appeals has cautioned,
Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir.1968). Each party, as a movant for summary judgment, bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. 10A Charles Alan Wright and Arthur R. Miller, Federal Practice & Procedure, § 2720 (3d ed.2014). Because we consider cross-motions before us, "[t]he fact that one party fails to satisfy that burden on his own Rule 56 motion does not automatically indicate that the opposing party has satisfied his burden and should be granted summary judgment on the other motion." Id.
John Aponik filed this five-count suit on January 28, 2015, seeking relief for alleged reverse race discrimination, age discrimination, and violations of the ADA and the Pennsylvania Human Relations Act. He states that Verizon Pennsylvania Inc. ("Verizon") employed him as of February 2, 1987 — first as a Directory Assistance Operator and later as an Outside Plant Technician. Cmplt. at ¶¶ 20, 21. He alleges that he suffered from a disability and was 53 years old when he filed his first discrimination charge against Verizon with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination based on his age and disability. Id. at ¶¶ 16, 22. When the defendant sent him for training, Aponik was unable to complete it because he could not climb the unstepped portion of a telephone pole as a result of his disability. Id. at ¶¶ 23, 24. Aponik's request for an accommodation was denied,
On January 8, 2014, Aponik filed an internal charge of race discrimination regarding the alleged disparate treatment. Id. at ¶ 35. On April 1, 2014, Aponik filed a second discrimination charge with the EEOC alleging race discrimination. Id. at ¶¶ 16, 31. The EEOC issued a Notice of Right to Sue on the latter charge on October 29, 2014. Id. at ¶ 16.
At the March 9, 2015 Rule 16 conference, Verizon sought permission to brief the Court in a motion for partial summary judgment as to Aponik's ADA claim for bodily injury damages he allegedly sustained as a result of Verizon's alleged failure to accommodate his claimed disability. Aponik agreed to the briefing. We ordered the parties to file briefs on the agreed-upon stipulated question the parties filed on May 18, 2015.
Verizon contends that Aponik's claim for personal injury damages is not cognizable under the ADA.
Verizon further argues that federal district courts have broadly recognized this statutory limit. Id. at 5-7. See also McEwen v. UPMC Shadyside Presbyterian Hosp., 2010 WL 4879195 (W.D.Pa. Nov. 23, 2010). It urges that we distinguish decisions that predate McEwen, contending they did not hold personal injury benefits are available under the ADA. Id. at 8, 9. See, e.g., Malone v. Specialty Prods. & Insulation Co., 85 F.Supp.2d 503 (E.D.Pa. 2000) (Joyner, J.). Verizon maintains that the case law has since evolved to clarify the unavailability of such relief. Id.
Finally, Verizon argues that the legislative intent of the Act is congruent with the statutory failure to include personal injury damages. Id. "The ADA [and its regulations] are intended to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent, enforceable standards addressing discrimination." Id. at 9, 10 (quoting 29 C.F.R. § 1630.1(a)) (alteration supplied). Verizon points out that, while omitting compensation for personal injury damages the ADA permits damages unavailable under state workers' compensation acts — such as pain and suffering. Id. at 10. The Act also states, "Nothing in this chapter alters the standards for determining eligibility" under state workers' compensation statutes or state and federal disability programs. Id. (quoting 42 U.S.C. § 12201(e)).
Id.
Aponik argues that "nothing in the ADA prohibits recovery of physical damages
The ADA provides individuals with disabilities "a clear and comprehensive national mandate for the elimination of discrimination" against them through "clear, strong, consistent, enforceable standards addressing [that] discrimination." 42 U.S.C. § 12101(b)(1) and (2). To that end, the ADA imports the remedies available under Title VII, see 42 U.S.C. § 12117(a), which include injunctive and other equitable relief, accrual of back pay and, through the enactment of the Civil Rights Act of 1991, compensatory damages for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses" and punitive damages in the event the employer acts "with malice or with reckless indifference to the [plaintiff's] federally protected rights." Landgraf v. USI Film Prods., 511 U.S. 244, 253-54, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (quoting 42 U.S.C. § 1981a(b)(1) and (b)(3)) (alteration in original). As noted, the ADA expressly does not change the standards for eligibility under state law for workers' compensation benefits. 42 U.S.C. § 12201(e).
"[I]t is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins. Co., 677 F.3d 178, 186 (3d Cir.2012) (quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979)) (internal citation omitted); accord Nat'l R.R. Passenger Corp., 414 U.S. at 458, 94 S.Ct. 690 ("A frequently stated principle of statutory construction is that when legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies."). Another canon of statutory construction arises from the expressio unius canon
Thus, the ADA's stated purpose and enumerated list of remedies informs courts that the statute's goal to prevent disability discrimination is achieved by remedies specifically addressed to the harm resulting from such discrimination, i.e., emotional pain, past and future monetary losses.
McEwen is particularly instructive. There, a lab technician who lost a leg in a motorcycle accident was assigned a lab position that required standing for extended periods. He sued claiming, inter alia, that transfer to that position injured his remaining leg, causing him to become totally disabled. 2010 WL 4879195 at *7. Judge McVerry rejected that claim: "Plaintiff has cited no legal authority for the proposition that such a claim is cognizable under the ADA or PHTRA, nor has the Court located any such authority." Id.
Courts in this district read the ADA narrowly, as an anti-discrimination statute, rather than broadly, as a statute that embraces personal injury damages to protect the disabled. "Because the ADA was not designed to protect those with disabilities from personal injuries, [p]laintiff is unable to state a claim for negligence per se. Indeed, 42 U.S.C. § 12101(b) expressly states that the purpose of the ADA is the elimination of discrimination against individuals with disabilities." Levin v. Dollar Tree Stores, Inc., 2006 WL 3538964 at *3 (E.D.Pa. Dec. 6, 2006) (Smith, M.J.) (quoting with approval White v. NCL America, Inc., 2006 WL 1042548 (S.D.Fla. Mar. 8, 2006)). Similarly, as Verizon points out, judges in this Court have construed "other pecuniary losses" to include only emotional or psychological injury akin to mental anguish, loss of enjoyment of life and emotional pain, as set out in the statute. Thus, Judge Yohn recognized "fear" as a compensable injury, see Equal Employment Opportunity Com'n v. Fusaro Corp., 2000 WL 375256 at *8 (E.D.Pa. Apr. 11, 2000). None has stretched the definition of "other pecuniary losses" to include personal injury.
Aponik urges in reliance on Malone that silence on the issue of recovery for physical injury does not bar such a remedy. In Malone, an asthmatic employee sued under the ADA claiming his condition was aggravated by the defendants' failure to enforce a smoking prohibition and sought "damages for aggravation of his disability and other physical injuries" they inflicted on him. Malone, 85 F.Supp.2d at 504, 506-07. Judge Joyner found that the defendants had failed to provide "a legally supported argument" that the plaintiff could not recover for physical damages for personal injury under his ADA claim: "The Court has done its own research on the issue, and has not found any statutory or caselaw basis for precluding [p]laintiff from recovering for physical damages under his ADA claim." Id. at 507. He noted that defendants could try again at trial, if they found "stronger legal support for their argument." Id.
We disagree with Aponik that silence constitutes assent or that Malone permits recovery for physical injuries under the ADA. Rather, the canons of statutory construction counsel precisely the opposite conclusion. As the ADA lists specific remedies and physical injury is not among them, and we will not read into the ADA a remedy that Congress was at pains not to mention. We find persuasive the reasoning of those district court decisions, in this Circuit and elsewhere that conclude there
Aponik also counters that the Supremacy Clause requires an ADA claim to preempt the Pennsylvania's Workers' Compensation Act to establish recovery for physical injuries. He relies on Haylett, where the Court observed in dicta
2006 WL 2372134 at *5 n. 4. Likewise, in Donnelly, the district court held that a "state law making recovery under a worker's compensation statute the exclusive remedy for work-related injuries cannot bar an employee from seeking relief for employment discrimination under the ADA.... [Such an] exclusivity provision cannot preempt [plaintiff's] federally created right to recover damages for emotional distress under Title VII." 635 F.Supp.2d at 988-89 (internal citations and quotation marks omitted). Aponik urges that we stretch that holding to encompass any aspect of an ADA claim. Pl. MPSJ at 5 (emphasis in original).
Aponik's preemption argument finds no traction in his case. To begin with, there is no claim here concerning the Pennsylvania's Workers' Compensation Act or any bar to Aponik's recovery for emotional distress under the ADA. Indeed, the ADA on its face contradicts any such preemption argument by expressly providing that "[n]othing in this chapter alters the standards for determining eligibility for benefits under State worker's compensation laws or under State and Federal disability benefit programs." See 42 U.S.C. § 12201(e). We agree with Verizon that Congress intended the ADA to work in tandem with existing workers' compensation laws and complement their provisions for work-related injuries with its remedies for harms not addressed under state statutes.
We hold that the ADA does not permit recovery for physical injuries and will accordingly grant Verizon's motion for partial summary judgment as to this claim.
AND NOW, this 21st day of May, 2015, upon consideration of the parties' motions for partial summary judgment on the stipulated question presented (docket entries ## 13 and 14), it is hereby ORDERED that:
1. Defendant's motion for partial summary judgment is GRANTED;
2. Plaintiff's motion for partial summary judgment is DENIED;
3. Plaintiff's claim for damages for personal injury in consequence of defendant's alleged violation of the Americans with Disabilities Act is STRICKEN;
4. By noon on June 1, 2015 the parties shall jointly ADVISE the Court by FAX (215-580-2156) whether they believe mediation before Judge Hart would likely be productive; and
