Nicholas Malfitano May 29, 2015, 10:50am


PHILADELPHIA – On May 21, a Philadelphia federal judge granted a motion for summary judgment in favor of Verizon Communications and against a former employee who claims he was reversely discriminated against based on his race, age and disability.

Cherry Hill, N.J. resident John Aponik, 55, filed suit in January against Verizon Communications of Pennsylvania in Fort Washington, claiming it violated the Age Discrimination in Employment Act of 1967 (ADEA), Americans with Disabilities Act of 1990 (ADA) and the Pennsylvania Human Relations Act (PHRA) when it subjected him to racial, disability and age discrimination.

Aponik was hired by the company in February 1987, first as a Directory Assistance Operator then was later transferred to a role as an Outside Plant Technician. Aponik alleges 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) in June 2013, alleging discrimination based on his age and disability.

Aponik’s charge at the time revolved around being sent for professional training and being unable to complete it, due to his disability preventing him from climbing the unstepped portion of telephone poles.

When Aponik’s request for an accommodation was denied, he allegedly exacerbated a pre-existing injury on May 6, 2013, by trying to complete the training without the requested accommodation, after which his doctor told him he could no longer climb.

Aponik claims he was moved to an “inside” position as a Maintenance Administrator three weeks later, a position that paid less than his previous position. Meanwhile, Aponik further claimed that African-Americans with the same job title and medical restrictions were not required to climb unstepped poles, as he had been as a Caucasian.

Subsequent to that course of events, Aponik filed both an internal discrimination claim with Verizon in January 2014 and a second discrimination charge with the EEOC in April 2014, this time on the basis of reverse racial discrimination.

As part of his claim of violating the ADA, Aponik sought bodily injury damages for the injury he suffered back in May 2013 when trying to complete his professional training and raised this matter in a March rule conference.

Both Aponik and Verizon each filed partial motions for summary judgment on this point, the validity of which brought the matter before Judge Stewart Dalzell of the Eastern District Court.

“Verizon contends that Aponik’s claim for personal injury damages is not cognizable under the ADA. Verizon maintains that Aponik ‘must identify the language within the Act that permits recovery for personal injury damages resulting from a failure to accommodate,’ and insists he cannot do so,” Dalzell said.

At the same time, Aponik insists there is no language present in the ADA preventing an employee protected under the act from seeking damages for a pre-existing injury exacerbated by discrimination.

In citing the ADA, Dalzell concurred with Verizon on the point of bodily injury damages.

“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,” Dalzell said.

“That reasoning has guided federal courts to conclude that the ADA supplies no remedy for damages for personal injury. 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.”

Dalzell held the ADA does not permit recovery for physical injuries and granted Verizon’s motion for partial summary judgment as to this claim.

The plaintiff is seeking a permanent enjoinment from further discrimination, actual and punitive damages, plus all pay he would have received had he not been subject to the defendant’s alleged illegal actions, attorney’s fees and court costs in this matter.

The plaintiff is represented by Timothy M. Kolman and Wayne A. Ely, of Kolman Ely in Penndel.

The defendant is represented by Joel S. Barras and Sara A. Begley of Reed Smith in Philadelphia.

U.S. Eastern District Court of Pennsylvania case 2:15-cv-00413

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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