Memorandum and Order

YOHN, J.

Alexander DiSante ("plaintiff") filed this action alleging that his employer, the United States Postal Service ("defendant" or "USPS"), unlawfully discriminated against him and demoted him by reducing his pay and service grade. In response, defendant has filed a motion to dismiss the action pursuant to Fed.R.Civ.P. 12(b) or, in the alternative, for summary judgment. That motion is before the court.

Plaintiff alleges that, in the spring of 1992, defendant began to discriminate against him in the terms and conditions of his employment. He alleges that the discrimination was based on his disability or his employer's perception thereof, was based on his gender, and was in retaliation for his complaints of discrimination. Ultimately, plaintiff was demoted in December of 1995. Plaintiff sought administrative relief from the demotion. Unsatisfied, he filed this action in October of 1998, filed an amended complaint in December of 1998, and filed a second amended complaint in October of 1999.

The second amended complaint is in eight counts and includes allegations of discrimination on the basis of disability, on the basis of gender, and in retaliation for engagement in protected activity. Also, the complaint includes several state law claims. Defendant filed a motion to dismiss the complaint or, in the alternative, for summary judgment. For the reasons that follow, I will deny defendant's motion as to the federal claims of employment discrimination under Title VII and the Rehabilitation Act. I will grant defendant's motion as to all other claims.

BACKGROUND

Construing the facts in the light most favorable to the plaintiff, this is what happened.

In April of 1974, plaintiff began working for defendant as a letter carrier. See Second Amend. Compl. 15 (Doc. No. 12) ("Compl."). Thereafter, plaintiff "received promotions until he became the manager of the Frankford [S]tation in March of 1990, a management position with a government classification of EAS-19." See Compl. 15.

In the Spring of 1991, at a Merit Systems Protection Board ("MSPB") hearing concerning another employee, plaintiff offered testimony adverse to his manager, Marc Winokur. See id. 16-18. In July of 1991, plaintiff was removed from his managerial position at Frankford Station ("Frankford") and sent to another station in a non-supervisory capacity. See id. 61. In February of 1992, while being reprimanded by Winokur, plaintiff told him that he was taking Prozac to treat his Obsessive-Compulsive Disorder. See id. 19. Thereafter, plaintiff alleges, he was transferred to different work sites in a manner not consistent with defendant's customary practice. See id. 25.

In June of 1993, plaintiff's new manager, James Adams, suspected plaintiff of using cocaine and erroneously reported plaintiff Absent Without Leave ("AWOL"). See id. 27-29; see also Pl. Mem. in Opp'n to Def. Mot. at Ex. C (Doc. No. 16) (hereafter "Pl. 3d Mem.").

In December of 1994, plaintiff's new manager, James Vance, investigated plaintiff for failure to distribute employee surveys. See Pl. Revised Mem. in Opp'n to Def. Mot. at Ex. I 13-14 (Doc. No. 15) (hereafter "Pl. 2d Mem."). Pending the outcome of the investigation, plaintiff was assigned to the Human Resources Department doing work ordinarily done by "level 5 clerks." See Compl. 34. Following investigation, plaintiff was issued a warning letter on March 3, 1995. See Pl. 2d Mem. Ex. I 15. At that time, Florence Paluszek was plaintiff's manager. Plaintiff informed Paluszek of the letter but Paluszek refused to return plaintiff to his position as manager of Frankford. See id. 16. On March 6, 1995, plaintiff filed an informal EEO complaint against Paluszek for threatening to have him permanently removed from his employment. See id. 17. That complaint was withdrawn on June 6, 1995. See Def. Mot. to Dismiss or for Summary Judgment of Pl. 2d Amend. Compl. Ex. 2 (Doc. 13) (hereafter "Def. 2d Mot.") (identifying number of complaint filed that date) and Def. Mot. for Summary Judgment Ex. 4 (Doc. 10) (hereafter "Def. 1st Mot.") (certifying withdrawal of informal complaint).

On April 24, 1995, Paluszek ordered plaintiff to return to Frankford. See Pl. 2d Mot. Ex. I 20. On April 25, 1995, plaintiff called in sick. See id. 23. Thereafter, plaintiff applied for worker's compensation. See Compl. 35-36. Plaintiff's application for worker's compensation was denied on the grounds that his stress was not job related. See id. 36. Plaintiff was assigned to Schuykill Station on August 5, 1995, under the supervision of James Adams. See id. 39; Pl. 3d Mem. Ex. E.

On September 26, 1995, plaintiff was assigned to Frankford. See Pl. 3d Mem. Ex. E. On October 24, 1995, it is alleged that plaintiff forgot to activate the Frankford alarm system and failed to ship collection mail when required to do so. See Def. 1st Mot. at 12-13 Ex. 12. On October 25, 1995, it is alleged that plaintiff conducted himself in an insubordinate and inappropriate manner. See id. at 13-14 Ex. 12. Finally, it is alleged that plaintiff refused to follow orders given by Paluszek on October 30, 1995. See id. at 14 Ex. 12. On October 30, 1995, Paluszek placed plaintiff on Administrative Leave, thereafter replacing him with a female employee. See id. 53-54. On December 23, 1995, plaintiff was demoted from his EAS-19 position of Manager of Customer Service to an EAS-16 position of Supervisor of Customer Service. See Compl. 65.

On May 23, 1996, Paluszek recommended that plaintiff be excluded from a merit pay bonus. See Pl. 3d Mem. Ex. F. On June 28, 1996, plaintiff filed an EEO complaint challenging his exclusion from an Economic Value Added ("EVA") bonus for fiscal year 1995. See Pl. 3d Mem. at 6. That complaint was settled on April 29, 1998. See Def. 2d Mem. Ex. 3.

On October 2, 1996, Dennis Carr, successor to Paluszek, recommended that plaintiff be excluded from a 1996 fiscal year EVA bonus. See Compl. 70; Pl. 3d Mem. Ex. G. In December of 1996, plaintiff filed an informal EEO complaint objecting to his exclusion from the fiscal year 1996 bonus. See Pl. 3d Mem. at 6. That complaint was to be heard by the MSPB but was withdrawn prior to the hearing and was included in this amended complaint. See Pl. 3d Mem. at 7.

Plaintiff's complaint is in eight counts. The first count alleges that due to his disability or defendant's perception thereof, defendant discriminated against plaintiff in his employment in violation of the Americans with Disabilities Act and the Rehabilitation Act. See Compl. 21-49. Count II alleges plaintiff suffered unlawful gender-based discrimination in violation of Title VII of the Civil Rights Act of 1964. See id. 50-58. Count III alleges that plaintiff was subject to discrimination in retaliation for his protected pursuit of administrative relief. See id. 59-78. Count IV seeks relief for violation of the Pennsylvania Human Relations Act. See id. 79-83. Count V alleges that defendant has deprived plaintiff of the right to participate in the Civil Service Retirement Plan. See id. 84-88. Count VI alleges that defendant has breached an implied covenant of good faith and fair dealing. See id. 89-92. Counts VII and VIII seek damages for the intentional and negligent infliction of emotional distress, respectively. See id. 93-96 97-100.

Defendant moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted, or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. I will treat each count separately. I will deny defendant's motion with respect to the claims under the Rehabilitation Act and Title VII and I will grant defendant's motion as to all other claims.

STANDARD OF REVIEW

I. DISCRIMINATION UNDERLYING THIS ACTION

Defendant appears to suggest that a failure to exhaust administrative remedies deprives the court of subject matter jurisdiction. See Def. 1st Mot. at 3-4. Defendant argues that the only issues before the court are those presented to the Merit Systems Protection Board ("MSPB") and decided on January 27, 1998. See Def. 1st Mot. at 3 Ex. 3. The MSPB addressed the question of the propriety of plaintiff's demotion. See Def. 1st Mot. Ex. 3 at 1-2; Pl. 3d Mem. Ex. D at 2. There is no dispute that the issue of the demotion is before the court. Plaintiff concedes that "certain administrative claims were dismissed, withdrawn or settled" but argues that "[p]laintiff cannot be precluded from describing the conduct complained in [sic] within his administrative complaints because they support his allegations of discrimination, harassment and retaliation." See Pl. 3d Mem. at 5-6. Plaintiff's admission that discrimination prior to plaintiff's demotion is of evidentiary value only is subject to one exception.

The one exception concerns a dispute over the EVA bonuses for which plaintiff may be eligible. Plaintiff argues that he was unlawfully denied both a 1995 bonus and a 1996 bonus. See Pl. 3d Mem. at 6-8. Plaintiff then concedes that the dispute over the 1995 bonus was settled. See id. at 7. In response to plaintiff's amended complaint including a claim for the 1996 bonus, defendant argues that the dispute settled was for the 1996 bonus and that the settlement agreement erroneously referred to the 1996 bonus as the 1995 bonus. See Def. 2d Mot. at 2-3. Defendant presents evidence to that effect. See id. Ex. 5 4-5. Plaintiff points out that defendant has taken inconsistent positions regarding whether the 1995 bonus was settled. See Pl. 3d Mem. at 7-8; compare Def. 1st Mot. at 4 with Def. 2d Mot. at 2-3. Plaintiff also points to the face of the settlement agreement, see Pl. 3d Mem. Ex. C, and a letter explaining the conditions of the 1995 EVA bonus, see id. Ex. H, to demonstrate that there was a 1995 EVA bonus from which he was excluded. Plaintiff has created a genuine issue of material fact as to which bonus dispute was settled. Because plaintiff's amended complaint includes a claim for the 1996 bonus, and because defendant has not challenged it for failure to exhaust administrative remedies, see Def. 2d Mot. at 2-3, I will consider plaintiff's claim for denial of the 1996 bonus.

I conclude that two adverse actions are properly before the court to support plaintiff's legal claims: plaintiff's demotion and the denial of plaintiff's 1996 bonus. Other allegedly discriminatory acts are, by concession, considered for evidentiary value.

Defendant moves to dismiss the complaint pursuant to the three Federal Rules of Civil Procedure. Defendant does not identify, however, which rule should apply to its motion with respect to each claim. Nonetheless, because I find Rule 12(b)(1) to be inapplicable, I will set forth the standards of review for Rule 12(b)(6) and Rule 56. In applying defendant's motion to each separate count, I will explain which rule guides my analysis.

II. RULE 12(B)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." See Fed.R.Civ.P. 12(b)(6). In ruling on a Rule 12(b)(6) motion, the court must accept as true all well-pleaded allegations of fact, and any reasonable inferences that may be drawn therefrom, in the plaintiff's complaint and must determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citations omitted). "The complaint will be deemed to have alleged sufficient facts if it adequately put the defendant on notice of the essential elements of the plaintiff's cause of action." Nami, 82 F.3d at 65.

Although the court must construe the complaint in the light most favorable to the plaintiff, it need not accept as true legal conclusions or unwarranted factual inferences. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Claims should be dismissed under Rule 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Id.; Nami, 82 F.3d at 65.

"If, on a [Rule 12(b)(6)] motion . . . to dismiss for failure of the pleadings to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." See Fed.R.Civ.P. 12(b).

III. RULE 56

Pursuant to Federal Rule of Civil Procedure 56, a motion for summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmovant bears the burden of persuasion at trial, the moving party may meet its initial burden and shift the burden of production to the nonmoving party "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Thus, summary judgment will be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

When a court evaluates a motion for summary judgment, "[t]he evidence of the nonmovant is to be believed." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Additionally, "all justifiable inferences are to be drawn in [the nonmovant's] favor." Id. Even so, the nonmovant must show more than "[t]he mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Id. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION

I. VIOLATION OF TITLE VII

Because I will consider evidence beyond the pleadings in resolving defendant's motion to dismiss the Title VII claims, the motion will be treated as one for summary judgment.

A. Gender-Based Discrimination in Employment

Title VII of the Civil Rights Act of 1964, as amended, prohibits "discrimination based on race, color, religion, sex, or national origin" by a federal employer. See 42 U.S.C. § 2000e-16(a). Because such discrimination ordinarily will not be explicit, courts have defined a burden-shifting analysis by which the merits of a claim are to be analyzed. See Iadimarco v. Runyon, 190 F.3d 151, 157-58 (3d Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) and Texas Dept. Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)).

First, plaintiff must establish a prima facie case. See Iadimarco, 190 F.3d at 157. Then, defendant must offer a legitimate, non-discriminatory reason for the employment action. See id. Finally, plaintiff must demonstrate that the employer's reason is pretextual, or that discriminatory animus actually motivated the action in dispute. See id. at 158.

1. Prima Facie Case

A prima facie case of unlawful discrimination under Title VII is comprised generally of four elements: 1) the plaintiff is a member of a protected class, 2) the plaintiff is qualified for the job, 3) the employer took an adverse action that affected the terms and conditions of the plaintiff's employment, and 4) the circumstances permit an inference of unlawful discrimination. See Jones v. School Dist. of Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999). The Third Circuit has warned, however, that there is no mechanical formula for stating a prima facie case. See id. at 411. Rather, a prima facie case should be based on the facts of each case. See id. Plaintiff has presented sufficient evidence to support a prima facie case.

Defendant first concedes that plaintiff is both a member of a protected class and suffered an adverse employment action. See Def. 1st Mot. at 11-12. Defendant then argues that plaintiff fails to state a prima facie case because plaintiff wasn't qualified for his job. See Def. 1st Mot. at 12. I disagree. Plaintiff has presented evidence that he was qualified to do the job. See Pl. Mem. in Opp'n to Def. Mot. Ex. J at 13 (quoting Paluszek testifying that plaintiff's performance in September of 1995 was "normal") (hereafter "Pl. 1st Mem."); see also id. Ex. J at 409; id. at 481; id. at 370-71. I find that plaintiff has produced evidence which creates a genuine issue of material fact as to his qualification for the EAS-19 position at Frankford.

Defendant argues also that plaintiff fails to state a prima facie case because plaintiff was replaced by an employee in his protected class. See Def. 1st Mot. at 12. Specifically, defendant concedes that plaintiff was temporarily replaced by Julie Hughes, see Def. 1st Mot. at 11 n. 7 and 15, but argues that plaintiff was replaced permanently by an unnamed "white male over the age of forty," see id. Defendant produces no evidence in this regard, and plaintiff points to none in response. I conclude that even if true, defendant's factual allegation is not fatal to plaintiff's claim. The Third Circuit has held that a plaintiff need not prove that other employees outside the protected class were treated more favorably. See Pivirotto v. Innovative Sys. Inc., 191 F.3d 344, 353 (3d Cir. 1999). Rather, plaintiff must offer "evidence `adequate to create an inference'" of unlawful discrimination in employment. See Pivirotto, 191 F.3d at 355. Plaintiff does this.

Plaintiff's evidence is that he was treated less favorably than his subordinate, Julie Hughes, in Paluszek's investigation of unshipped mail. See Pl. 3d Mem. at 16 and Pl. 3d Mem. Ex. J at 282-84 298-315 (discussing Paluszek's investigation of unshipped mail as to plaintiff and Hughes). Also, plaintiff and defendant agree that Hughes was plaintiff's immediate replacement following his demotion. See Pl. 3d Mem. at 16 and compare Compl. 54 with Def. 1st Mot. at 11 n. 7 15. Although proof of differential treatment of "a single member of the non-protected class is insufficient to give rise to an inference of discrimination" at the pretext stage, "such an inference may be acceptable at the prima facie stage of the analysis" See Simpson v. Kay Jewelers, 142 F.3d 639, 646 (3d Cir. 1998). But see Pivirotto, 191 F.3d at 359 (citing Simpson to support the conclusion that plaintiff's "evidence of the allegedly better treatment of male employees [was] weak and not probative of discrimination" in analyzing plaintiff's prima facie case). The fact that Hughes was treated differently in the investigation of unshipped mail, and then succeeded plaintiff after his demotion, permits an inference that plaintiff was demoted because of his gender. Therefore, I find that plaintiff states a prima facie case of gender-based discrimination.

2. Defendant's Legitimate Reason

Defendant, faced with a prima facie case of unlawful discrimination, may defeat the inference it creates by offering a non-discriminatory reason to explain the employment action. See Iadimarco, 190 F.3d at 157-58; Jones, 198 F.3d at 410. Defendant's letter recommending demotion lists four grounds justifying reduction in pay and grade: 1) plaintiff's failure to set the alarm at Frankford on October 24, 1995; 2) plaintiff's failure to ship all collection mail for delivery on October 24, 1995; 3) plaintiff's insubordination and inappropriate conduct on October 25, 1995; and 4) plaintiff's insubordination on October 30, 1995. See Def. 1st Mot. Ex. 12. Each is non-discriminatory. Therefore, the burden shifts back to plaintiff to demonstrate that defendant's proffered reasons are pretextual.

3. Pretext Analysis

Once defendant articulates legitimate reasons for the employment action, plaintiff must prove that those reasons are pretextual. To do so, plaintiff must produce "`some evidence, direct or circumstantial, from which a fact finder would reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.'" See Jones, 198 F.3d at 413 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

[T]he plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer. . . . Rather, the nonmoving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them without credence.

See Jones, 198 F.3d at 413 (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997) (en banc)).

I find that there is sufficient evidence in the record to permit a reasonable fact finder rationally to disbelieve defendant's proffered legitimate reasons. First, as to the unshipped mail, plaintiff presents deposition testimony revealing an alleged investigation by Paluszek which appears limited in scope and which appears unnecessary both due to her early conclusion that plaintiff would be disciplined and due to her ultimate opinion that plaintiff, as station manager, bore responsibility for the unshipped mail. See Pl. 3d Mem. Ex. J at 282-305. Also, plaintiff presents testimony of other employees which indicates that it would be implausible that plaintiff could have exited the building while the mail was in place. See Pl. 3d Mem. Ex. L at 407. Combined, the evidence is sufficient to permit a fact finder to disbelieve the employer's suggestion that failure to ship mail was a reason for demotion.

Second, as to the unset alarm, plaintiff admits to being the last out of the building and does not recall the alarm one way or another. See Def. 1st Mot. Ex. 9 at 625-29. Plaintiff alleges, however, that standard practice would have resulted in a phone call to his residence by the postal police to inform him that the alarm had not been set. See id. at 628-29. He received no such phone call. See id. Moreover, plaintiff knew of standard procedure because he and others had failed, on prior occasions, to properly activate the alarm. See id. at 629. Again, a reasonable fact finder, weighing such evidence, could conclude that the failure to set the alarm was not the reason for plaintiff's demotion.

Third, regarding the insubordination and inappropriate behavior of October 25, 1995, defendant says that plaintiff isolated himself in a supervisor's office and then conducted himself in a manner unbecoming a manager when he said loudly to other employees "I'll see you at the bar." See Def. 1st Mot. Ex. 12. Plaintiff explains that he was in the office because Paluszek told him he was being demoted from manager to supervisor and because he was depressed. See id. Ex. 9 at 633-34. Also, plaintiff presents testimony of other employees that his conduct was neither boisterous nor disruptive. See Pl. 3d Mem. Ex. L at 409; id. at 316-17; id. at 377. If plaintiff's evidence is believed, a reasonable fact finder could conclude that defendant's explanation is implausible.

Finally, regarding plaintiff's insubordination of October 30, 1995, defendant alleged that plaintiff arrived early at Frankford, refused to leave the premises when ordered to do so, and then refused to meet Paluszek when ordered to do so. See Def. 1st Mot. Ex. 12. Plaintiff testifies that he was given confusing instructions by Paluszek and that he was punished for doing what he was instructed to do. See Def. 1st Mot. Ex. 9 at 639-42. A reasonable fact finder could conclude that defendant's explanation was pretextual.

I conclude that plaintiff has presented a prima facie case of gender-based discrimination in employment, that defendant has proffered legitimate reasons for the adverse employment action, and that plaintiff has presented evidence from which a reasonable fact finder could rationally conclude that the employer's proffered reason is pre-textual. Therefore, I will deny defendant's motion as to Count II.

B. Retaliation for Opposing An Unlawful Employment Practice

Title VII prohibits discrimination against employees who "opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." See 42 U.S.C. § 2000e-3(a).

The burden shifting framework applied to the gender discrimination claim applies also to claims of retaliatory discrimination. See Krause v. American Fertilizer Co., 126 F.3d 494, 500 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920 n. 20 (3d Cir. 1997). To begin, plaintiff must show: 1) that he engaged in protected conduct; 2) that he suffered adverse employment action after or contemporaneous with the protected conduct; and 3) that there is a causal link between the conduct and the adverse action. See Krause, 126 F.3d at 500 506; Woodson, 109 F.3d at 920. Defendant challenges plaintiff's prima facie case by offering a legitimate reason to explain the demotion: "[P]laintiff was demoted because of his inability to perform the duties of a manager for the USPS." See Def. 1st Mot. at 18. In so doing, defendant purports to challenge the causal connection between plaintiff's protected conduct and his demotion.

Temporal proximity between the protected conduct and the adverse action may support an inference of retaliation. See Woodson, 109 F.3d at 920-21. Plaintiff presents a time line summarizing provable events which reveals that in the nine months preceding his demotion, plaintiff filed four EEO complaints and one application for worker's compensation. See Pl. 3d Mem. Ex. A. Plaintiff's time line reveals a pattern of adverse action in close proximity to protected conduct. See id. Therefore, I find that plaintiff states a prima facie case of unlawful retaliatory discrimination. I find also that defendant has offered legitimate reasons for the demotion.

Finally, I find that plaintiff provides evidence which, if believed, "demonstrate[s] such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions." See Jones, 198 F.3d at 413; see supra, Part I.A.3. Therefore, I will deny defendant's motion for summary judgment as to Count III of the complaint concerning retaliation for protected activity.

II. VIOLATION OF THE ADA

In Count I, Plaintiff alleges that various acts and omissions by defendant were in violation of his rights under the Americans with Disabilities Act, 42 U.S.C. § 12112 ("ADA"). See Compl. 21-49. Defendant moved to dismiss Count I because the ADA does not apply to federal employers. See Def. 1st Mot. at 6-7. Plaintiff has not responded to the argument. Therefore, pursuant to Local Rule 7.1, I will grant the motion to dismiss the ADA claim for lack of timely response. See E.D. Pa. Loc. R. Civ. P. 7.1.

III. VIOLATION OF THE REHABILITATION ACT

Because I will look beyond the pleadings to consider defendant's motion as to plaintiff's Rehabilitation Act claim, I will consider the motion as one for summary judgment.

The Rehabilitation Act ("RHA") provides that "[n]o otherwise qualified handicapped individual . . . shall, solely by reason of his handicap . . . be subjected to discrimination . . . under any program or activity conducted by any Executive agency." See 29 U.S.C. § 791(b). See also 29 U.S.C. § 794. The burden-shifting approach of Title VII cases is used to analyze claims under the rehabilitation act. See Crawley v. Runyon, No. 96-6862, 1998 U.S. Dist. Lexis 9603, *32 (E.D.Pa. June 30, 1998) (applying burden-shifting framework to disparate treatment claim under the RHA).

Plaintiff's prima facie case requires him to show that: 1) he is disabled; 2) he is otherwise qualified to perform the essential functions of the job, with or without accommodation, 3) he suffered adverse action in his employment; and 4) circumstances of the adverse action permit an inference that it was because of his disability. See Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996); Crawley, 1998 U.S. Dist. Lexis 9603, at *32. I conclude that plaintiff states a prima facie case.

First, plaintiff is disabled within the meaning of the statute if he "(1) has a physical or mental impairment that substantially limits one or more of such person's major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment." See 29 U.S.C. § 706(8)(B); 29 C.F.R. § 1614.203(a)(1) (2000). Plaintiff maintains that defendant regarded him as disabled.

To maintain such a claim, plaintiff must prove that defendant treated him as disabled, that is, substantially limited in "one or more major life activities." See 29 C.F.R. § 1614.203(a)(5); Taylor v. Pathmark Stores, 177 F.3d 180; 192 (3d Cir. 1999); Crawley, 1998 U.S. Dist. Lexis 9603, at *27. It is not sufficient for plaintiff to show that defendant knew of his impairment. See Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996); Crawley, 1998 U.S. Dist. Lexis 9603, at *27 n. 20. Nonetheless, plaintiff need not prove animus on the part of defendant; an innocent mistake may still support liability. See Taylor v. Pathmark Stores, 177 F.3d at 191; Deane v. Pocono Med. Ctr., 142 F.3d 138, 144 (3d Cir. 1998).

Plaintiff alleges that once defendant became aware of his impairment, defendant treated him unfavorably. See Compl. 42-44. Defendant does not respond. Plaintiff reiterates his allegations and provides evidence that permits an inference that Paluszek regarded him as disabled. Plaintiff provides evidence that Paluszek believed he sees "things that don't exist." See Pl. 1st Mem. Ex. D at 29. In addition, plaintiff provides evidence that Paluszek escorted him from the workplace for his safety after she relieved him from duty. See Pl. 3d Mem. Ex. J at 339-40 342. Finally, plaintiff presents evidence that he was regarded as not fit for duty at Frankford. See Pl. 3d Mem. Ex. K at 58-60 81-85. Plaintiff states a prima facie case of being regarded as disabled.

Defendant does not articulate a legitimate reason for demoting plaintiff. Moreover, plaintiff has presented sufficient evidence that defendant's proffered reasons for demotion are pretextual to survive summary judgment. See supra, Part I.A.3. Therefore, I will deny defendant's motion for summary judgment on plaintiff's RHA claim.

IV. VIOLATION OF THE PENNSYLVANIA HUMAN RELATIONS ACT

In Count IV, plaintiff alleges that defendant's conduct violates the Pennsylvania Human Relations Act, 43 Pa. C.S.A. 951. Defendant moves to dismiss the count because Title VII provides the exclusive remedy for gender-based employment discrimination by a federal employer. See Def. 1st Mot. at 18. Plaintiff does not respond. I will grant the motion to dismiss Count IV as unopposed for lack of timely response. See E.D. Pa. Loc. R. Civ. P. 7.1.

V. CIVIL SERVICE RETIREMENT ACT

In Count V of his second amended complaint, plaintiff alleges that his demotion interfered with his participation in the Civil Service Retirement Act, 5 U.S.C. § 8331. See Compl. 84-88. Defendant responded that plaintiff failed to exhaust his administrative remedies and failed to join the proper defendant. See Def. 1st Mot. at 21. Plaintiff has not responded. I will grant the motion to dismiss Count V as unopposed for lack of timely response. See E.D. Pa. Loc. R. Civ. P. 7.1.

VI. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING

In Count VI of the complaint, plaintiff alleges that defendant promised to treat him fairly and honestly when he began working for defendant. See Compl. 90-91. Defendant moves to dismiss the count because Pennsylvania law does not permit an independent cause of action for breach of the covenant of good faith and fair dealing. See Def. 1st Mot. at 22. Plaintiff has not responded. Therefore, I will grant the motion to dismiss count VI as unopposed for lack of timely response. See E.D. Pa. Loc. R. Civ. P. 7.1.

VII. INTENTIONAL NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

In Counts VII and VIII, plaintiff seeks damages for the intentional and negligent infliction of emotional distress, respectively, caused by the discriminatory acts and omissions of defendant and defendant's employees. See Compl. 94 98. Defendant moved to dismiss the counts first, because Title VII provides the exclusive statutory remedy for employment discrimination claims and second, because plaintiff has failed to exhaust administrative remedies required to maintain suit under the Federal Tort Claims Act, 28 U.S.C. § 2401(b). See Def. 1st Mot. at 19-20. Plaintiff did not respond to defendant's motion. Therefore, I will dismiss Counts VII and VIII of the complaint as unopposed for lack of timely response. See E.D. Pa. Loc. R. Civ. P. 7.1.

CONCLUSION

An appropriate order follows.

Order

And now, this day of March, 2000, upon consideration of plaintiff's Second Amended Complaint (Doc. No. 12), defendants' Motion for Summary Judgment (Doc. No. 10), defendants' Motion to Dismiss or, in the alternative, for Summary Judgment (Doc. No. 13), plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment (Doc. No. 14), plaintiff's Revised Memorandum in Opposition to Defendant's Motion for Summary Judgment (Doc. No. 15), and plaintiff's Memorandum in Opposition to Defendants Motion for Summary Judgment or Motion to Dismiss (Doc. No. 16), it is hereby ORDERED that the motion to dismiss or, in the alternative for summary judgment:

1) is DENIED with respect to plaintiff's Rehabilitation Act claims in Count I and with respect to plaintiff's Title VII claims in Counts II and III;

2) is GRANTED with respect to plaintiff's claims for punitive damages; and

3) is GRANTED with respect to all other of plaintiff's claims.