HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/CAIN-HYA.ASC

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/*  This case is reported in 734 F.Supp. 671 (E.D.Penn. 1990).
The opinion of the United States District Court for the Eastern
District of Pennsylvania in the case of Cain v. Joel Hyatt,
reported at 734 F.Supp. 671 (E.D.Pa. 1990). In this case, the
court is faced with an HIV positive attorney who is fired. The
court finds that the firing was illegal due to discrimination.
The case is a very comprehensive review of the law in this area,
and quite important since it contains guidance for both employers
and employees.*/


MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

In this nonjury case, plaintiff Clarence Cain alleges that the
defendants' decision to remove him as regional partner of Hyatt
Legal Services because he had contracted acquired immune
deficiency  syndrome (AIDS) violated the Pennsylvania Human
Relations Act, Act of October 27, 1955, Pub.L. No. 744 (codified
as amended at 43 Pa.Stat.Ann.  951 et seq.), which proscribes
employment discrimination on the basis of non-job related
handicap or disability. This Court has jurisdiction pursuant to
28 U.S.C.  1332. See Wolk v. Saks Fifth Avenue Inc., 728 F.2d 221
(3d Cir. 1984); Davis v. United States Steel Supply, 581 F.2d
335, 339 (3d Cir.1978); Petit v. Sears, Roebuck & Co., 32 Fair
Empl.Prac.Cas.(BNA) 1867 (E.D.Pa.1982). Having held a bench trial
to consider the claim, the Court now finds in favor of the
plaintiff.

  I.   Findings of Fact

The facts of this case are not in serious dispute.  Established
in 1977, Hyatt Legal Services (Hyatt) is a general practice law
firm with over 150 locations nationwide. As with any large
interstate enterprise, Hyatt is complexly structured. The firm's
primary unit of operation is the office. Offices in geographical
proximity to one are other are denominated a region.  Several
regions, in turn, are grouped into a division.

Generally. staff attorneys are assigned to a particular office
and hold a nonmanagerial, entry-level position within the firm's
hierarchy.  They interview and cultivate clients, make court
appearances, generate documents, and otherwise engage in all the
duties that legal practitioners undertake. Hyatt mandates that
each staff attorney commence his or her day no later than 9 a.m..
remain in the office until 8 p.m. two evenings each week, and
work at least every other Saturday.  In 1987, Hyatt employed
approximately 500 staff attorneys, almost all of whom earned
between $20,000 and $24,000 annually.

A managing attorney heads each office. In addition to carrying a
caseload, the managing attorney oversees staff attorneys and
legal assistants. The managing attorney recruits, instructs,
tenders regular evaluations of personnel, hears client
complaints, and is charged with maintaining the profitability of
the office.

The regional partner, who supervises all managing attorneys
situated in the region's offices, is more akin to a business
manager than a practicing lawyer.  Unlike staff or managing
attorneys, regional partners do not have a caseload or represent
clients. Instead, they recruit and train attorneys, evaluate
subordinates, inspect offices and files, handle client
complaints, organize seminars, and engage in various
administrative duties.  Like staff and managing attorneys,
however, regional partners possess no equity in the firm and are
at-will employees. In August 1987, there were 25 regional
partners nationwide.

As noted earlier, regions are combined into divisions. Each
division is headed by a national partner, who supervises the divi
sion's regional partners. National partners in turn report to a
managing partner or a senior partner. The senior partners, defen
dants Joel Hyatt, Wayne Willis, William Rooks, and Susan Hyatt,
promulgate firm policy and hold equity interests in the orga
nization.  In 1987, Willis also served as a managing partner.

Hyatt employees accumulate two sick days for every three months
of service and one week of vacation time every six months. The
firm also has a medical leave policy. which permits attorneys and
legal assistants to take, as a matter of right, a thirty day
unpaid leave of absence due to illness or injury.  They may take
up to three months with the approval of the supervising national
partner.  An employee does not forfeit benefits or seniority
while on unpaid leave. The firm, however, does not guarantee that
the employee can return to the exact position he or she had prior
to an extended absence, although by policy it will make an effort
to do so. When regional partners take pregnancy leaves, which
have lasted over two months in duration, managing attorneys
assume regional partner duties until they return.

On April 7, 1986, Cain, a graduate of the University of Virginia
School of Law with almost ten years' legal experience, entered
Hyatt's Fast Track Regional Partner Program, which was specially
tailored by Hyatt to attract talented and knowledgeable
attorneys. Bypassing the usual entry-level position of staff
attorney, Fast Track participants begin their employment with the
firm as managing attorneys.  Candidates have six months in which
to be either promoted to regional partner or terminated.

After completing a two-week training session at the firm's
headquarters in Kansas City, Cain was appointed managing attorney
of the Falls Church, Virginia Office. The plaintiff's work in
that position was exemplary, and, on November 24, 1986, he was
promoted to regional partner of the firm's Philadelphia Region
South.  In December 1986, Hyatt management consolidated
Philadelphia North and Philadelphia South into a single region,
which comprised ten offices with thirty-five attorneys and
another thirty-five staff members.  Cain continued to serve as
partner of this new region.  His salary was $40,000 per year.

Because the Philadelphia region long had been languishing so
seriously, by late January 1987 Willis divided the regional
partner duties among three individuals. Cain performed most of
the functions.  A managing attorney and Fast Track participant,
Earl Fisher, assisted with recruiting and reviewing the
performance of staff members. Defendant Robert Croyle, who was a
Hyatt national partner and Cain's immediate supervisor, took up
residence in Philadelphia in order to focus his energies on the
region's rehabilitation.

In March 1987, Cain's relationship with his superiors began to
deteriorate.  Although the plaintiff spent over half of his time
recruiting, he regarded the task as distasteful and dull. Cain
told Croyle that in particular he disliked the 'sales" component
of recruiting and that Hyatt needed someone to assume the
responsibility full-time.  He similarly demonstrated little
desire to review the managing attorneys under his authority.

The plaintiff's conflict with Willis and Croyle stemmed partially
from the fact that, as alluded to earlier, the Philadelphia
region always had been an unhappy one. Since its inception in
1981, the region has never turned a profit on an annualized basis
and even lost over a million dollars a year prior to 1986, has
had a high turnover of regional partners, and, in 1987, was sig
nificantly understaffed.  In fact, Philadelphia North did not
even have a regional partner for at least six months prior to
Cain's assumption of his post.  Cain complained to his superiors
that one person could not possibly rectify all the difficulties.
The tensions that this situation naturally created were further
aggravated by Cain's apparent disagreement with Hyatt's upper-
level management about what strategy would best alleviate the
troubles in Philadelphia.  Croyle and Willis believed that the
proper emphasis was on recruiting. The  plaintiff, however,
perceived the staff's lack of training to be source of the
region's ills.

In May 1987, although Croyle had reprimanded Cain for processing
client complaints in an unsatisfactory manner, the firm, with
Croyle's approval, raised Cain's yearly compensation to $44,000,
which rendered the plaintiff one of Hyatt's highest paid regional
partners.  The plaintiff then was hospitalized briefly for minor
surgery in June.  Croyle and Fisher handled the regional partner
responsibilities during Cain's absence.  Upon his return, and
despite his pay raise, the plaintiff's seeming dissatisfaction
with his position intensified. Prior to a June divisional
regional partner's meeting in Washington, D.C., Cain had dinner
at a hotel restaurant with Croyle and other colleagues.  The
plaintiff loudly voiced derogatory comments about the firm and
its senior partners. During the course of the partner's meeting
itself, Cain disrupted the proceedings with unprofessional
remarks.

On the following day, Croyle and the plaintiff took a train back
to Philadelphia. Croyle told Cain that if he ever engaged in such
conduct again he would be fired. Croyle also reprimanded the
plaintiff for his lack of organization and direction. Cain asked
whether Croyle wanted him to resign, and Croyle said no. After
Cain told Croyle that he felt overwhelmed by the job, the two
agreed that Cain needed to devise a coherent scheme to rescue the
region. The plaintiff stated he would draft a plan.

Croyle again criticized the plaintiff for his performance and
attitude on July 6, 1987.  He noted that Cain lacked energy and
interest in executing his duties as regional partner. Cain
replied that he was "not a cheerleader."

On July 13,1987, Cain entered Pennsylvania Hospital with
pneumocystis pneumonia. Three days later, he was diagnosed as
having AIDS. When Croyle visited Cain in the hospital on July
21st, the plaintiff told Croyle that he had AIDS and asked him to
speak with Dr. Michael Braffman, Cain's treating physician, about
the condition. Cain related his desire to return to work as soon
as possible and begged Croyle to help him retain his job.

     Croyle conferred with Dr. Braffman on the next day.  Dr.
Braffman confirmed that Cain was recovering from his AIDS-related
pneumonia.  Although the doctor repeatedly stressed that he could
not predict with certainty the future course of Cain's illness
because that varied from patient to patient, he opined that Cain
likely would be discharged from the hospital near the end of the
month and would be able to return to Hyatt by mid-August.  When
Croyle pressed for a more definite schedule. the doctor
reiterated that he could not do so Dr. Braffman did tell Croyle
that most AIDS patients returned to their jobs after the first
hospitalization, that initially they had to resume employment-
related responsibilities on a part-time basis, that they usually
then were capable of functioning full-time and that many persons
with AIDS die within a year or two of their diagnosis. Dr.
Braffman again stated that no physician could determine during a
patient's first hospitalization whether that particular person
will fall within these boundaries.

Shortly afterward. Croyle related to Willis the conversation with
Dr. Braffman, but, despite the doctor's clear and repeated
admonitions, Croyle did so by applying Dr. Braffman's general
statistics to Cain specifically.  Croyle later memorialized his
understanding of the doctor's prognosis:

     On July 22, 1987. . . [Dr. Braffman] said that [Cain] would
     be discharged from the hospital on July 31,1987. He would
     then need several weeks to recover and would not be able to
     return to work until early mid-August.  He indicated that
     Clarence could function in the job in the "short term". He
     indicated that in returning to work he would have to work
     half or partial days to recover and then would be able to
     function in the short term.  He defined the short term as
     30,60, 0 days up to nine months.  He indicated his ability
     to function would be a day to day, week to week process. He
     recommended and encouraged all of his patients with AIDS to
     return to employment in the short term.  Long term, which he
     defined as year to year and a half, the disease would be
     terminal.

Memorandum from Bob Croyle to Wayne Willis, July 31,1987 (Def.
Ex. 8).

Thus, within a week of the plaintiff's diagnosis and while he was
still in the hospital. Willis and Croyle decided to remove Cain
from his position for two reasons.  First, based solely on their
understanding of Dr. Braffman's statements, Willis and Croyle
concluded that over time Cain would become fully disabled and
therefore incapable of executing his obligations as regional
partner. They consulted no other physician or medical authority.
Second, as Willis and Croyle testified, they were concerned that
having a person with AIDS as regional partner would damage the
"morale" of the Philadelphia region's staff.  Neither Willis nor
Croyle knew at that time whether AIDS could be transmitted
through casual contact.  In other words, it is apparent that not
only did Croyle and Willis themselves feel apprehensive about the
communicability of AIDS. they also imputed similar fears to their
employees. These anxieties were a significant factor in Hyatt's
decision to fire the plaintiff.

Although the firm's termination policy vested Willis and Croyle
with authority to remove Cain, Willis sought the guidance of
Hyatt's other senior partners. Each of the senior partners agreed
that Cain had to be removed. Perceiving Fisher to be the most
logical candidate to succeed Cain, Willis and Croyle then
withdrew the firm's previous offer of a regional partnership in
Denver and extended him the Philadelphia post. On approximately
July 28th, Fisher formally acceded to the regional partner
position. but with the understanding that he would fill it for
one year only. Fisher had Cain's desk cleared off because he did
not want to touch any items associated with Cain.

Meanwhile, in Pennsylvania Hospital, the plaintiff became
increasingly distraught. He was convinced that Hyatt planned to
fire him. Although Cain had been attempting to perform some of
his regional partner functions while in the hospital and members
of his staff often had telephoned him to conduct firm business
during the earlier portion of Cain's hospitalization, the calls
ceased after Croyle's visit. No member of Hyatt's senior
management contacted the plaintiff in the hospital during the
later part of July.

On July 30th, Croyle again spoke with Dr. Braffman. Croyle
inquired  about available treatment programs for Cain. Dr.
Braffman replied that it was too early to determine what medical
response was appropriate in the plaintiff's case.  Dr. Braffman
also advised Croyle that because Cain was so upset and angry
about the prospect of losing his job, Croyle should not visit the
plaintiff until he had an opportunity to recover further.

The next day, Cain left Pennsylvania Hospital to recuperate at
home.  On August 2d, Fisher called the plaintiff there and asked
him whether Croyle had spoken to him. Cain said that he had not.
After a brief conversation, Cain understood that he had been
fired.  Fisher then telephoned Croyle and demanded that Croyle
tell Cain directly that he had been removed from his position at
Hyatt.  Croyle contacted the plaintiff.  They agreed to meet on
the following afternoon.

On August 3d, Croyle went to Cain's apartment.  Even though Cain
had not yet exhausted his sick and vacation days, Croyle told the
plaintiff that because he had AIDS and because of his past
conduct "under no circumstances" would the firm allow him return
to his former post.  He informed Cain that in Dr. Braffman's view
the plaintiff would not be able to do the job and that Hyatt
already had replaced him. Croyle then outlined Cain's options.
Cain could accept a $12,000 severance package, a staff attorney
position in Falls Church, or assistance in securing placement in
an experimental  AIDS-treatment  program  at Johns Hopkins
University.  Cain became hysterical.  He told Croyle he wanted
his old job back and ordered Croyle out of the house.

On August 5th, Hyatt placed Cain on a three-month medical leave
of absence and removed him from the Hyatt payroll.  Later that
month, the plaintiff asked Willis to reinstate him as regional
partner. Willis instead offered Cain an administrative position
in Kansas City, which he refused.

By the close of August, Cain's health bad improved markedly under
Dr. Brahman's care.  Having responded well to the drug
azidothymidine (AZT), the plaintiff had gained his energy and
much of his weight In Dr. Braffman's professional opinion, Cain
could have returned as regional partner by the beginning of
September. After Cain moved to the Washington, D.C. area in
October 1987, Dr. Micheal Pistole, an AIDS specialist, began
treating Cain.  In Dr. Pistole's professional opinion, as of
October the plaintiff could have performed his duties as regional
partner without restriction and continued to do so fully until
about June 13, 1988. Because the plaintiff had contracted a
bronchial infection, suffered from an intestinal disorder, and
lost considerable weight, Dr. Pistole doubted that he would have
been able to work after that period.  Cain has been afflicted
with myriad ailments from June 1988 to the present.

[1]  Dr. Pistole also found that Cain generally has had mild to
moderate reactive depression and, during periods of greater ill
health, fairly severe depression. Cain's depression has
manifested itself in sleep disturbances, anxiety, and a lack of
motivation.  In January 1988, Dr. Pistole prescribed Halcyon to
aid the plaintiff in sleeping.  During the summer of 1988, the
doctor increased Cain's dosage of Elavil, which he had prescribed
for the plaintiff's neuropathy, to antidepressant levels.  Dr.
Pistole ascribes Cain's reactive depression to his contraction of
AIDS and the loss of his job. [1]

Pursuant to the Pennsylvania Human Relations Act (PHRA), 43
Pa.Stat.Ann.  951 et seq., Cain filed a complaint with the
Pennsylvania Human Relations Commission.  He charged that Hyatt
illegally had terminated him on the basis of a non-job related
handicap or disability. On June 29, 1988, during a meeting in the
Commission's offices, the defendants formally offered to remit to
Cain complete backpay including all fringe benefits.  They also
proposed to reinstate the plaintiff to employment comparable to
that of regional partner-the position had been eliminated under a
Hyatt reorganization plan-at $44,000 per year. This offer of
adjustment did not require Cain to relinquish any legal claims he
had against the firm.  Cain rejected the proposal, and. for that
reason the Commission closed the case on July 21, 1988. See 16
Pa.Code  42.62.  Litigation in this Court followed.

II.  Conclusions of Law

[2]  Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938), and its progeny require a federal court
sitting in diversity to apply state substantive law, which
includes the authoritative pronouncements of the state's highest
judicial tribunal.  In the absence of such guidance, the Court
must predict how that tribunal would rule if the issue were
presented to it.  Hospital Support Serv. Ltd. v. Kemper Group.
889 F.2d 1311, 1313 (3d Cir.1989).  The Third Circuit has held:

     To make this prognostication, we are not inflexibly confined
     by dicta or by lower state court decisions, although we
     should look to such statements as indicia of how the state's
     highest court might decide. The policies underlying the
     applicable legal doctrines, the doctrinal trends indicated
     by these policies, and the decisions of other courts may
     also inform our analysis. In addition, we may consult
     treatises, the Restatement, and the works of scholarly
     commentators.

Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652
F.2d 1165,1167 (3d Cir.1981); see also West v. AT& T Co., 311
U.S. 223, 236-37, 61 S.Ct. 179,183, 85 L.Ed. 139 (1940).

In the specific context of the PHRA, two principles of
interpretation must be high-lighted.  First, the Court is bound
to construe the Act "liberally," 43 Pa.Cons. Stat. Ann.  962(a),
and "in the manner which will effectuate its purpose, a task
which compels consideration of more than the statute's literal
words."  Pennsylvania Human Relations Commission v. Chester Sch.
Dist., 427 Pa. 157, 166-167, 233 A.2d 290, 295 (1967).  Second,
the Pennsylvania legislature modeled the PHRA on Title VII of the
Civil Rights Act of 1964, 78 Stat. 253 (codified as amended at 42
U.S.C.  2000e et seq.) and the federal Rehabilitation Act of
1973, Pub.L. No. 93-112, 87 Stat. 355 (codified as amended at 29
U.S.C.  709-796i) McWilliams v.  AT&T Information Sys. 728
F.Supp. 1186 (W.D.Pa.1990); Murphy v. Cartex Corp.. 377 Pa.
Super. 181, 546 A.2d 1217 (1988); Pennsylvania State Police v.
Pennsylvania Human Relations Comm'n, 72 Pa.Cmwlth. 520, 528 29,
457 A.2d 584, 589 (1983).  As a result, the Pennsylvania Supreme
Court often has employed federal caselaw in its construction of
the Act.  See, e.g., General Elec. Corp. v. Commonwealth Human
Relations Comm'n, 469 Pa. 292, 30306, 365 A.2d 649, 654-57
(1976); see also Winn v. Trans World Airlines, 75 Pa.Cmwlth. 366,
371-72, 462 A.2d 301, 30304 (1983), affd by equally divided
court, 506 Pa. 138, 484 A.2d 392 (1984).

                               A.

The PHRA declares that it shall be unlawful for an employer to
discharge or otherwise discriminate against any individual "with
respect to compensation, hire, tenure, terms, conditions or
privileges of employment"  because of that  person's "non-job
related handicap or disability" if he or she "is the best able
and most competent to perform the services required." 43
Pa.Stat.Ann.  955. The Pennsylvania Human Relations Commission
has augmented the statutory scheme by promulgating several
interpretive regulations.  A "handicapped or disabled person" is
one who "(A) has a physical or mental impairment which
substantially limits one or more major life activities: (B) has a
record of such impairment: or (C) is regarded as having such an
impairment."  16 Pa.Code  44.4(4)(i).  A "physical impairment" is
"a physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body
systems: neurological;  musculoskeletal;  special sense organs;
respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic;
skin, and endocrine ..." Id.  44.4(4)(ii)(A).  "Major life
activities" are "functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working," Id.  44.4(4)(ii)(B),  One "is
regarded as having such an impairment" if one possesses a
physical impairment "that does not substantially limit major life
activities but that is treated by an employer as constituting
such a limitation" or one "that substantially limits major life
activities only as a result of the attitudes of others toward
such  impairment." Id.  44.4(4)(ii)(D).

The Commission adopted these definitions verbatim from United
States Department of Health, Education and Welfare regulations,
which were "drafted with the oversight and approval of
Congress." School Board of Nassau County v. Arline, 480 U.S. 273,
279, 107 S.Ct. 1123, 1127, 94 L.Ed.2d 307 (1987).  Given this
genealogy and given that the Commission enacted the regulations
pursuant to its rulemaking  authority,  43  Pa.Stat.Ann.  957,
the Court expresses no doubt that the Pennsylvania Supreme Court
would approve them.  See Pennsylvania State Police, 72 Pa.Cmwlth,
at 529, 457 A.2d at 588-89. See generally Pennsylvania Human
Relations Comm'n v. Uniontown Area School Dist., 455 Pa. 52, 313
A.2d 156 (1973).

[3]  The threshold issue therefore is whether AIDS constitutes a
handicap with-in the meaning of the PHRA.  For two reasons the
Court predicts that the Pennsylvania Supreme Court would find
that it does,  First, both the underlying viral condition and the
symptomology of AIDS give rise to physical impairments that
substantially limit one's abilities to engage in major life
activities. Second, societal prejudices deem persons with AIDS as
having such an impairment.

 The Court initially notes that the consensus of opinion holds
AIDS qualifies as a handicap or disability under various federal
and state anti discrimination laws.  Courts construing federal
legislation analogous to the PHRA have declared that infection
with the human immunodeficiency virus (HIV) or AIDS is a
handicap.  See Martinez v. School Rd. of Hillsborough County, 861
F.2d 1502, 1506 (11th Cir.1988) (holding AIDS a handicap under
Rehabilitation Act); Chalk v. United States District Court, 840
F.2d 701(9th Cir.1988) (reversing denial of preliminary
injunction seeking reinstatement of teacher with AIDS to
classroom duties under Rehabilitation Act); Baxter v. City of
Belleville, 720 F.Supp. 720, 730 (S.D.Ill.1989) (concluding HIV
carriers handicapped under Fair Housing Act, 42 U.S.C.  3601 et
seq.); Robertson v. Granite City Comm, Unit School Dist., 684
F.Supp. 1002, 10064)7 (S.D.Ill.1988) (holding student with AIDS-
related complex handicapped under Rehabilitation Act); Thomas v.
Atascadero Unified School Dist., 662 F.Supp. 376, 381 (C.D.Cal.
1986) (holding child with AIDS handicapped under Rehabilitation
Act).  Similarly, two thirds of the states have announced either
administratively or judicially that AIDS related discrimination
is illegal under their statutes. See, e.g., Raytheon Co. v. Fair
Empl. & Hous. Comm'n, 46 Fair Empl. Prac.Cas. (BNA) 1089
(Cal.Super.Ct. 1988), affd, 212 Cal.App.3d 1242, 261 Cal.Rptr.
197 (1989); District 27 Comm. School Rd. v. Board of Educ., 130
Misc.2d 398, 502 N.Y.S. 2d 325 (Sup.Ct.1986); see also Leonard,
AIDS, Employment and Unemployment, 49 Ohio St. L.J. 929, 93940 &
nn. 74-89 (1989) (collecting decisions); Brown, AIDS
Discrimination in the Workplace: The Legal Dilemma, Case &
Comment, Nov.-Dec, 1989, at 49 (citing National Gay Rights
Advocates, AIDS and Handicap Discrimination: A Survey of the 50
States and the District of Columbia (1986)).  This includes the
Pennsylvania Human Relations Commission, which considers AIDS to
be a handicap or disability under the PHRA. Pennsylvania Human
Relations Comm'n Policy Directive: Reaffirmation of the PHRC's
AIDS Policy, Policy No. 884)1 (June 2, 1988); see also MA. E. v.
Doe & Roe, ,l66 A.2d 285, 287 (Pa.Super.1989) (Cavanaugh, J..
concurring) (stating AIDS a disability or handicap under PHRA).

A retrovirus called the human T-lymphotropic virus type
III/lymphadenopathy-associated virus. and more commonly known as
HIV, is the causative agent of AIDS. Briefly stated. HIV
penetrates and then disables white blood cells that normally
check the growth of parasitic infections in the body.  HIV-
seropositivity. AIDS-related complex (ARC), and AIDS form a
spectrum of related conditions. There is a time lapse, often of
several years, between exposure to HIV and the onset of symptoms
generally identified with ARC or AIDS, and it presently is
unclear how many HIV infected persons eventually will develop
AIDS. A person with ARC manifests some perceptible symptoms of
illness, such as persistent fever, weight loss, fatigue, and
diarrhea. AIDS itself is a clinical construction or designation
reflecting the collapse of the patient's immune system, the conse
quences of which are an array of opportunistic infections and
malignancies.  Today, AIDS is incurable and fatal. See generally
Revision of the CDC Surveillance Case Definition for Acquired
lmmunodeficiency Syndrome, 36 Morbidity & Mortality Weekly Rep.
15 (Aug. 14, 1987 Supp.); Mueller, The Epidemiology of the Human
immunodeficiency Virus infection, 14 Law, Med. & Health Care 250
(1986); Classification System for Human T-Lymphotropic Virus Type
III/Lymphadenopathy Associated Virus  Infections. 35 Morbidity &
Mortality Weekly Rep. 334, 33637 (1986).

First, even if it were asymptomatic, the plaintiff's HIV
infection constitutes a substantial physical limitation upon
major life activities. HIV, which disables white blood cells,
including lymphocytes. "creates a physiological disorder of the
hemic (blood) and lymphatic systems."  Doe v. Dolton Elem. School
Dist. No. 148, 694 F.Supp. 440, 444 (N.D.Ill. 1988). Because of
the risk of transmission. an HIV carrier cannot procreate
without endangering the lives of both the offspring and the other
parent." Id. Accord Note, Asymptomatic Infection with the AIDS
Virus as a Handicap Under the Rehabilitation Act of 1973, 88
Colum.L.Rev. 563, 572 (1988). There is no gainsaying that this
significant injury to the reproductive system impedes a major
life activity.  The interests in conceiving and raising one's own
children "have been deemed 'essential,' 'basic civil liberties of
man,' and '[r]ights far more precious ... than property rights.'
" Stanley v. Illinois, 405 U.S. 645, 651. 92 S.Ct. 1208, 1212, 31
L.Ed.2d 551 (1972) (citations omitted). Like all AIDS victims,
the plaintiff also has suffered a constellation of symptoms that
greatly hinder other major life activities. For example, he has
had pneumocystis carinii pneumonia, a disorder of the respiratory
system, which dramatically impaired his ability to breathe and
interact with others. See generally Note, AIDS: Does It Qualify
as a "Handicap" Under the Rehabilitation Act of 1973?, 61 Notre
Dame L.Rev. 572. 585 (1986).

Second, since first identified in the early 1980s as a distinct
medical condition. AIDS has engendered such prejudice and
apprehension that its diagnosis typically signifies a social
death as concrete as the physical one which follows. Only three
methods are known to spread HIV: sexual intercourse, transfusion
of infected blood products, and perinatal contact.  Excluding
healthcare professionals who perform invasive procedures, AIDS
cannot be transmitted through workplace exposure. Centers for
Disease Control. Recommendations for Preventing Transmission of
infection with Human T-Lymphotropic Virus Type III,
Lymphadenopathy-Associated Virus in the workplace. 34 Morbidity
and Mortality  Weekly Rep. 682 (1985) (finding "[t]he kind of
nonsexual person-to-person contact that generally occurs among
workers and clients or consumers in the work-place does not pose
a risk of transmission" of HIV), or through sharing a household
with an infected person.  Fischl, et al., Evaluation  of
Heterosexual Partners, Children and Household Contacts of Adults
with AIDS, 257 J.A.M.A. 640 (1987); U.S. Public Health Service,
Surgeon General's Report on Acquired Immune Deficiency Syndrome
at 13 (1986).

     Yet, despite authoritative medical evidence to the contrary,
fully one-third of the American population believes "AIDS is as
contagious, or more contagious, than the common cold," Note, The
Constitutional Rights of AIDS Carriers, 99 Harv.L.Rev. 1274, 1274
n. 6 (1986), and "[f]ew aspects of a handicap give rise to the
same level of public fear and misapprehension as contagiousness."
Arline, 480 U.S. at 284, 107 S.Ct. at 1129.  The pervasive
anxiety that AIDS is easily transmitted converges with and often
ostensibly justifies the disapprobation of AIDS victims.
Societies long have entertained bizarre conceptions about the
etiology of illness and interpreted the contraction of disease,
including cancer, as punishment for moral turpitude. Id. at 284 &
nn. 12-13,107 S.Ct. at 1129 & nn. 12-13; S. Sontag, Illness as
Metaphor 6 (1978); Hoffman, Employment Discrimination Based on
Cancer History: The Need for Federal Legislation, 59 Temple L.Q.
1, 2-9 (1986).  The particular associations AIDS shares with
sexual fault, drug use, social disorder, and with racial
minorities, the poor, and other historically disenfranchised
groups accentuates the tendency to visit condemnation upon its
victims. S. Sontag, AIDS and Its Metaphors 4446, 54-59 (1989);
see also Dunlap, AIDS and Discrimination in the United States:
Reflections on the Nature of Prejudice in a Virus, 34 Vill.L.Rev.
909, 917-20 (1989).

AIDS mythology has fomented not only private judgments about
carriers of the virus.  It has spawned calls for punitive,
oppressive official action against them "in every public forum
and institution in this society, in virtually every context
imaginable."  id. at 913.  Vast segments of the American populace
favor the forced quarantine of persons with AIDS, Sullivan &
Field, AIDS and the Coercive Power of the State, 23 Harv.C.R.-
C.L.L.Rev. 139, 143-46 (1988);  Parinet, AIDS and Quarantine, The
Revival of an Archaic Doctrine, 14 Hofstra L.Rev. 53 (1985),
tattooing HIV-positive persons for ready identification, Blendon
&  Donelan, Discrimination Against People with AIDS: The Public's
Perspective, 319 New EngJ.Med. 1022, 1026 (1988), and banishing
HIV carriers from the workplace and school. Id. Thus, to conclude
that persons with AIDS art stigmatized is an understatement; they
art widely stereotyped as indelibly miasmic, untouchable,
physically and morally polluted.

     These and related prejudices substantially curtail the major
life activities of AIDS victims.  They are shunned socially and
often excluded from public life.  As the Supreme Court has
observed, "[S]ociety's accumulated myths and fears about
disability and disease are as handicapping as are the physical
limitations that flow from actual impairment." Arline, 480 U.S.
at 284, 107 S.Ct. at 1129.  In this case, the defendants not only
afforded weight to the debilitating attitudes that they
attributed to others, but they themselves also considered the
plaintiff to be handicapped.  Because of Cain's condition, he was
removed from his job, which terminated his ability to socialize
with others and to pursue his profession.  See Baxter, 720
F.Supp. at 729-30.

                               B.

A handicap or disability is "non-job related" if it "does not
substantially interfere with the ability to perform the essential
functions" of the position at issue. 43 Pa. Stat.Ann.  954(p).
As noted earlier, two considerations motivated the defendants to
remove Cain from the regional partner position.  First, they
believed that the progressive symptomology of the illness would
render Cain incapable of executing his obligations as regional
partner in the future. That is, they concluded that his
disability would become job related. Second, the defendants
apprehended that Cain's colleagues would fear working with him
because of the underlying viral condition, with its perceived
risk of transmission. The Court cannot agree that either aspect
of Cain's handicap was job related under the circumstances.

[4]  First, although it is at least plausible to contend that the
former, sympomatic dimension of Cain's handicap would become job
related, the latter, asymptomatic one clearly is non-job related.
The plaintiff demonstrated that there was no actual risk of
infection involved, and the defendants never argued to the
contrary.  See Arline, 480 U.S. at 287-88. 107 S.Ct. at 113~31.
Moreover. the asserted reticence or unwillingness of coworkers
and clients to associate with an AIDS victim who is without any
contagious opportunistic infections does not convert a handicap
into a job related one.  The "unreasonable and unfounded fears of
coemployees is not an exception to an employer's obligation not
to discriminate against a handicapped person." Jansen v. Food
Circus Supermarkets, 110 N.J. 363, 373, 541 A.2d 682, 687 (1988);
see also Leonard, AIDS and Employment Law Revisited,  14  Hofstra
L.Rev. 11, 40-41 (1985).  Under Title VII, "[c]ustomer
preference has repeatedly been rejected as a justification for
discrimination against women... it is similarly ...  forbidden
...  to refuse on racial grounds to hire someone because your cus
tomers or clientele do not like his race." Rucker v. Higher Educ.
Aids Rd., 669 F.2d 1179,1181(7th Cir.1982) (citing Fernandez v.
Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th  Cir.1981)); see also
29 C.F.R.  1604.1(ii) (stating "the refusal to hire an individual
because of the preferences of co-workers, the employer, clients
or customers" not permissible under Title VII). The rationale for
this rule is wholly applicable to the PHRA.  To permit an
employer to circumvent the dictates of the antidiscrimination
statute by declaring an individual unfit because the prejudices
of its employees commanded it to do so would be "totally
anomalous," Diaz v. Pan American World Airlines. 442 F.2d 385.
389 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30
L.Ed.2d 267 (1971), for the purpose of the Act is to eradicate
the harm that ubiquitous stereotyping perpetuates.  43
Pa.Stat.Ann.  952.

     Second, the Court does not understand the defendants to
argue, and the evidence does not show, that they perceived the
symptomatic aspect of Cain's handicap to be job related when he
was terminated. They knew that Cain was recovering from his
pneumonia and that he likely would return to work by mid-August.
Willis and Croyle repeatedly testified that at the time they
decided to remove Cain their principal concern was that he would
"become" disabled.  A preponderance of the evidence also
established that from September 1987 until June 1988 the
plaintiff's illness in fact would not have impaired his ability
to function as regional partner.  In other words, the handicap
was not job related during that time. The pertinent inquiry
therefore is whether Cain's heightened risk of future symptomatic
job-related disability, as understood when the termination
decision was made, warranted the action.  The Court finds that it
did not. Further, to whatever degree Cain's disability
temporarily interfered with his capacity to work, Hyatt could
have provided accommodation without undue hardship.


As an initial matter, the Court doubts that the Pennsylvania
Supreme Court ever would allow an employer's qualms, well-founded
or not, concerning the future performance of a employee or
applicant who is presently able to discharge the functions of the
position to justify adverse employment action, unless the safety
of that person or others was implicated.  See State Div. of Human
Rights v. Xerox Corp., 65 N.Y.2d 213, 491 N.Y.S.2d 106, 480
N.E.2d 695 (1985) (rejecting as valid defense statistical
likelihood that applicant's medical condition would produce
impairments in future). An employer's conclusion that a given
person will be physically unable to satisfy job requirements in
the long-run almost always will rest on inherently speculative
grounds. See Leonard, supra, 14 Hofstra L.Rev. at 28-29; Comment,
Section 504 of the Rehabilitation Act. Analyzing Employment
Discrimination Claims. 132 U.Pa.L.Rev. 867. 884-91 (1984).
"[A]llowing remote concerns to legitimize discrimination against
the handicapped would vitiate the effectiveness" of the PHRA, for
"[p]otentially troublesome health problems will affect a large
proportion of the handicapped population.  Consistent attendance
and an expectation of continuity will be important to any
employer." Bentivegna v. United States Dept of Labor, 694 F.2d
619, 623 (9th Cir. 1982) (construing Rehabilitation Act of 1973).
Indeed, because the alleged long-term complications associated
with handicaps often will not have manifested themselves at trial
time, acceptance of the defense tends to invite courts to
ascertain merely whether the employer's decision to terminate was
reasonable, a standard that fundamentally is at cross-purposes
with the Act.  Compare Strathie r. Pennsylvania Dep't of Transp.,
716 F.2d 227, 231 (3d Cir.1983) ("[B]road judicial deference
resembling that associated with the 'rational basis' test would
substantially undermine Congress' intent in enacting section 504
that stereotypes or generalizations not deny handicapped
individuals equal access to federally-funded programs.") and
Comment supra. 132 U.Pa.L.Rev. at 876-91 with 16 Pa.Code  44.15
(including "length of service the employer can reasonably expect
before the employee's handicap or disability is likely to become
job-related" as factor in determining permissibility of
termination).

[5]  Assuming such a defense is available at all in a disparate
treatment case, an employer's conclusion that a handicap or
disability will become job related must be predicated at the very
least on objective, individualized, and medically valid evidence.
"The essence of discrimination ... is the formulation of opinions
about others not on their individual merits. but on their
membership in a class with assumed characteristics." Jansen, 110
N.J at 378, 541 A.2d at 689.  To sanction a nonparticularized
assessment would permit an employer to rely on precisely the type
of reflexive suppositions about a handicapped person's
capabilities that the PHRA was designed to prohibit. As the
Supreme Court has phrased it, the "mere possession of a handicap
is not a permissible ground for assuming an inability to function
in a particular context." Southeastern Community College v.
Daris, 442 U.S. 397, 405. 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980
(1979) (interpreting Rehabilitation Act of 1973); see also
Strathie, 716 F.2d at 231.  Additionally, the PHRA, like the
Rehabilitation Act, is structured to replace uninformed
stereotyping "with actions based on reasoned and medically sound
judgments."  Arline, 480 U.S. at 285, 107 S.Ct. at 1129.

None of these rudimentary principles formed Hyatt's determination
that Cain would become unable to perform his duties. The only
medically grounded opinion which the firm's management considered
was that of Dr. Braffman, and he explicitly warned the defendants
that during the plaintiff's first AIDS-related hospitalization no
conclusion about Cain's long-term condition could be distilled
from his general statements. Thus, because the defendants relied
solely on Dr. Braffman's broad statistical data in reaching their
view, the adverse employment action, which was taken within a
week of the plaintiff's diagnosis, was not based on medically
sound or individualized information. Rather, it emanated from
nothing more than their pernicious misconceptions about Dr.
Braffman's prognosis and their unfounded factual assumptions
regarding Cain's prospective physical disability.  See Pushkin v.
University of Colorado, 658 F.2d 1372, 1387 (10th Cir.1981).

[6]  Furthermore, like the Rehabilitation Act of 1973, see, e.g.,
Strathie, 716 F.2d at 230, the PHRA imposes upon employers the
duty reasonably to accommodate handicapped individuals.  An
employer is relieved of this obligation only if it demonstrates
accommodation would work an undue hardship on the enterprise's
operation. Jenks v. Auco Corp., 340 Pa.Super. 542, 549, 490 A.2d
912, 916 (1985); Department of Transp. v. Pennsylvania Human Rela
tions Commn, 84 Pa.Cmwlth. 98,105, 480 A.2d 342, 34647 (1984),
remanded, 510 Pa 401, 508 A.2d 1187 (1986);  16 Pa.Code  14.14.
"As long as a reasonable accommodation available to the employer
could have plausibly enabled a handicapped employee to adequately
perform his job, an employer is liable for failing to attempt
that accommodation." Kimbro v. Atlantic Richfield Co.. 889 F.2d
869, 879 (9th Cir. 1989) (applying Washington state law).

     That the defendants made absolutely no effort to accommodate
the plaintiffs disability is patently obvious. They terminated
him as regional partner within one week
of his having informed them that he had AIDS. They did not
consult either Cain or his treating physician regarding what, if
any, alterations would be necessary to allow Cain to resume his
employment. When Croyle told the plaintiff that he had been
removed, he stated that "under no circumstances would Cain be
permitted to return as regional partner."  Indeed. the defendants
affirmatively impeded Cain's attempt to discharge his
responsibilities from the hospital when they directed Hyatt
employees to cease telephone contact with the plaintiff. See
Toledo v Nobel-Sysco. Inc., 892 F.2d 1481,1490 (10th Cir.1989)
(holding "an employer who has made no efforts to accommodate the
religious beliefs of an employee or applicant before taking
action against him may only prevail if it shows that no
accommodation could have been made without undue hardship.").

[7] The duty of accommodation dictated that Hyatt could not
remove the plaintiff from the position during his first aids-
related hospitalization without affording him an opportunity to
return to work and endeavor to satisfy its demands. To that end,
the defendants were obligated to permit the plaintiff to exhaust
his sick and vacation days and then, if necessary, place him on a
medical leave of absence until he could return to his former job
or until the situation posed an undue hardship on Hyatt. See,
e.g. Aimbro. 889 F.2d at 878-79; Chambers v. Omaha Girls Club in
c., 834 F.2d 697, 708-709) (8th Cir.1987) (McMillian. J.,
dissenting); McElrath v. Kemp, 714 F.Supp. 23, 27-28
(D.D.C.1989); Callicotte v. Carlucci, 698 F.Supp. 944, 949-50
(D.D. C.1988); Leonard, supra. 14 Hofstra L.Rev. at 34-36;
Comment, Hidden Handicaps, Protection of Alcoholics, Drug
Addicts, and the Mentally Ill Against Employment Discrimination
under the Rehabilitation Act of 1973 and the Wisconsin Fair
Employment Act. 1983 Wis.L. Rev. 725, 745-49 (1983); see also
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60. 72-73, 107 S.Ct.
367, 374, 93 L.Ed.2d 305 (1986) (Marshall, J., concurring and
dissenting) (discussing leave of absence as accomodation in Title
VII religious discrimination context);  Kendall v.  United Air
Lines. 494 F.Supp. 1380, 1390-91 (N.D.Ill. 1980) (same). In early
August 1987, Cain's disability due to pneumonia was temporary and
his condition was improving.  A leave of absence would have
allowed the plaintiff to endure the remainder of his AIDS-related
pneumonia and then resume work as regional partner.  Moreover, a
medical leave would have supplied Cain and his physician with a
chance to design a treatment program for his condition, which may
well have improved his ability to perform. "As long as at the
time of [Cain's removal], there were 'plausible reasons to
believe that the handicap [could have been] accommodated' by the
leave of absence, [Hyatt] is responsible for its failure to offer
such a leave." Kimbro, 889 F.2d at 878 (quoting Prewitt v. United
States Postal Serv., 662 F.2d 292, 310 (5th Cir.1981)). Accord
Dean v. Municipality of Seattle, 104 Wash.2d 627, 708 P.2d 393
(1985).

During August 1987, Hyatt also could have supplemented the leave
of absence accommodation with other measures.  In particular,
Croyle and Fisher could have continued to shoulder the regional
partner duties, just as they did during part of July, and
facilitated Cain's desire to fulfill a portion of his job
responsibilities by phone or by sending staff to visit him in the
hospital or at home. Such temporary modifications in scheduling
and duties and the provision of additional assistance are plainly
contemplated by the reasonable accommodation doctrine.  16
Pa.Code  44.14.

[8]  The Court cannot credit the defendants'  assertions  that
accommodation would have created an undue hardship. As noted
earlier, the evidence adduced at trial established that Cain's
disability was not job related in any notable respect from
September 1987 until June 1988. He therefore would not have
required any cognizable accommodation at all during that period.
Nor can the Court grant credence to the claim that because the
plaintiff faced a shortened career span his tenure would have
disrupted the continuity of leadership in the Philadelphia
region.  At the time Hyatt replaced Cain with Fisher, Fisher's
express commitment to the region was for no more than one year.

Additionally, Hyatt has not shown that accommodation of Cain
during August 1987, by leave of absence or otherwise, entailed an
undue burden.  Indeed, the methods of accommodation outlined
previously are not materially different than those utilized when
a regional partner takes pregnancy leave.  The defendants' thesis
at trial, however, was that because Fisher had an offer to take
the regional partner post in Denver, which was where Fisher
preferred to go, Hyatt immediately had to promote him to the
Philadelphia regional partnership or else lose him to Denver.  If
they had not done so, the defendants claimed, the Philadelphia
position would have been left empty. This purported exigency of
Hyatt's own manufacture. however, simply cannot justify its
failure to accommodate. There was no evidence that Hyatt would
have incurred any significant costs either by simply retaining
the status quo for another month or by permitting Fisher to move
to Denver and leave the region in the hands of Croyle and Willis
for a short period of time.

[9]  The defendants stated at trial that their offer of the Falls
Church staff attorney position was an attempt to accommodate the
plaintiff's disability.  This is a feeble post hoc
rationalization.  First, at the time Cain was terminated, Hyatt's
duty was to accommodate the plaintiff in the position that he had
held previously, that of regional partner. See, e.g., 43
Pa.Stat.Ann.  954(p) (defining non-job related handicap as one
that "does not substantially interfere with the ability to
perform the essential functions of the employment which a
handicapped person applies for, is engaged in or has been engaged
in." (emphasis added)).  To equate accommodation with the
prohibited conduct itself, such as summary removal or demotion
because of non-job related handicap, eviscerates not only the
concept of accommodation, but the entire Act itself. Second, the
asserted accommodation was not reasonable.  The staff attorney
job is more physically demanding and attracts substantially less
compensation and prestige than the regional partner position.
Further, it is a non-managerial position involving qualitatively
different duties than those borne by the regional partner.  Cain
himself had never been a staff attorney, and the defendants were
well aware that the plaintiff had no interest in making court
appearances or advising clients and that he originally had
accepted employment with the Hyatt organization because he had
desired a management-oriented position.  Even before they made
the ostensible offer, the defendants knew that Cain would reject
it.

[10]  Finally, the defendants raised the idle claim that Cain
breached his duty to cooperate. " '[T]he statutory burden to ac
commodate rests with the employer,' and the employee's 'duty to
make a good faith attempt to satisfy his needs through means
offered by the employer,' is irrelevant until the employer
satisfies its initial obligation" to attempt accommodation.
Toledo, 892 F.2d at 1488-49 (quoting Brener v. Diagnostic Center
Hosp., 671 F.2d 141, 146 (5th Cir.1982)).  Accord Anderson v.
General Dynamics Convair Aerospace Div., 589 F.2d 397, 401(9th
Cir.1978) ("The burden was upon the [employer], not [the
employee], to undertake initial steps toward accommodation."),
cert. denied, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290 (1979).
Because the offer of alternate employment, even assuming it
constituted attempted accommodation, came after the unlawful
termination, Cain did not breach his duty to cooperate.  See
Toledo, 892 F.2d at 1489.

                               C.

     The Court need not dwell on the issue of causation.  In
General Electric Corp. v. Pennsylvania Human Relations Comm'n,
469 Pa. 292, 365 A.2d 649 (1976), and later in Winn v. Trans
World Airlines, 506 Pa. 138, 484 A.2d 392 (1984), the Supreme
Court of Pennsylvania applied to the PHRA the evidentiary
framework that the United States Supreme Court had formulated for
most Title VII cases in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "[T]he McDonnell
Douglas test," however, "is inapplicable where the plaintiff
presents direct evidence of discrimination"  Trans World Airlines
v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22. 83 L.Ed.2d
523 (1985).  Thus, when the evidence reveals that both legal and
illegal considerations lay behind the employment action. see
Price Waterhouse v. Hopkins. _____ U.S.____109 S.Ct. 1775, 1790.
104 L.Ed.2d 268 (1989), and the plaintiff demonstrates that the
impermissible consideration was a "motivating," id. at 109 S.Ct.
at 1790 (plurality opinion), or "substantial," id. at _____  ,
109 S.Ct. at 1795 (White, J., concurring); id. at _____, 109
S.Ct. at 1805 (O'Connor, J., concurring), factor in the adverse
employment decision the employer may prevail only if it proves by
a preponderance of the evidence that it would have taken the same
action with the illegitimate motive removed from the calculus. Cf
Rozanski v. A-P-A Transp.. Inc., 512 A.2d 335, 341 (Me.1986)
(under Maine law "once an employee proves that he was the victim
of unlawful employment discrimination [on the basis of handicap,
the burden then shifts to the employer to prove by clear and
convincing evidence that absent any unlawful discrimination the
employee would not have been hired in any event.")

[11]  In this case, because the plaintiff showed that his non-job
related handicap was the dispositive. or but-for, cause of his
termination, the proof goes far beyond that which is necessary.
(Cf Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175. 179 (3d
Cir.1985), cert. denied, 475 U.S. 1035, 106 S.Ct. 1244, 89
L.Ed.2d 353 (1986). There is no question that the defendants
would not have removed Cain as regional partner in July if he had
not contracted AIDS.  Croyle and Willis acknowledged that
although they had perceived Cain to be struggling in the
position, they were not ready to terminate him for inadequate per
formance.  Moreover, Croyle rebuffed Cain's offer to resign a
month before he was fired. The Court therefore easily concludes
that Hyatt's "decision was made because of, consideration of the
illegitimate factor," namely, Cain's non-job related handicap.
Price Waterhouse,___ U.S.____at ____, 109 S.Ct. at 1804
(O'Connor, J., concurring).

                               D.

By its terms the PHRA authorizes significantly broader relief for
victims of discrimination than does Title VII or the Rehabili
tation Act.  See, e.g., Protos v. Volkswagen of America, Inc.,
797 F.2d 129 (3d Cir.) (holding compensatory and punitive damages
not available in employment discrimination actions under Title
VII). cert. denied. 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418
(1986).  In addition to permitting "affirmative action" such as
reinstatement and backpay, the PHRA empowers a court to award
"any other legal or equitable relief" that the court "deems
appropriate."  43 Pa.Stat.Ann.  962(b).  "'Legal or equitable
relief includes damages for humiliation and mental  anguish."
Pennsylvania Human Relations Comm'n v. Zamantakis, 478 Pa. 454,
459, 387 A.2d 70, 73 (1978). The Court predicts that by this same
reasoning, see Tull v. United States, 481 U.S. 412, 422, 107
S.Ct. 1831, 1838, 95 L.Ed.2d 365 (1987) (punitive damages remedy
is form of legal relief), and because of the statute's sweeping
remedial purpose and language, the Pennsylvania Supreme Court
would rule that punitive damages may be imposed under the PHRA.
Cf Woodson v. AMF Leisureland Centers, Inc., 842 F.2d 699, 701-
703 (3d Cir.1988) (predicting Pennsylvania will allow punitive
damages in wrongful discharge cases).

[12]  Cain is entitled to backpay.  The evidence shows that he
received his last paycheck on July 28, 1987 and that he could
have worked until June 13. 1988. At the time of termination, the
plaintiff's salary was $44,000 annually. The Court therefore
awards $38,696.55 in backpay and $4,191.63 in simple interest at
the legal rate of six percent.

[13]  Plaintiff's counsel's post-trial repudiation of Dr.
Pistole's opinion that Cain could not have discharged his duties
after June 13,1988 is thoroughly reprehensible. Apparently
counsel believe that even if the Court were to discard the clear
and carefully rendered view of their own expert, it then would
speculate in the plaintiff's favor about how long he could have
worked. Perhaps it was this misguided assumption that induced the
plaintiff's attorneys initially to withhold from the Court Dr.
Pistole's extremely probative testimony.  In any event, the
defendants' unconditional offer of reinstatement and backpay on
June 28, 1988 tolled the accrual of backpay liability at
approximately the same time that Cain become incapacitated. See
Ford Motor Co. v. EEOC, 458 U.S. 219, 232, 102 S.Ct. 3057, 3066,
73 L.Ed.2d 721 (1982) (Title VII); Barron v. Safeway Stores,
Inc., 704 F.Supp. 1555, 1569-70 (E.D.Wash. 1988) (Washington
state law).

[14]  The record also is replete with evidence that Hyatt
inflicted mental anguish and humiliation on the plaintiff.  He
was dismissed from his job only days after learning he had a
fatal, dreaded illness. This conduct was a substantial
contributing cause of the plaintiff's reactive depression, which
has required medical treatment. The Court awards Cain $65,000.00
for the mental anguish and humiliation attributable to the
defendants' unlawful actions.

[15]  Under Pennsylvania law, the standards set forth in section
908 of the Restatement of Torts (1939) govern the application of
punitive damages, which are awarded to punish a person for
outrageous conduct, Chuy v. Philadelphia Eagles Football Club,
595 F. 2d 1265, 1277 (3d Cir.1979), "that is, for acts done with
a bad motive or with a reckless indifference to the interests of
others."  Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355,
358 (1963); see also Woodson, 842 F.2d at 703; Medvecz v. Choi,
569 F.2d 1221, 122627 (3d Cir.1977).  The Court finds under all
the circumstances of this case that the defendants' conduct was
not merely inexcusably insensitive and illegal, but was so
outrageous that the sanction of punitive damages is warranted.

The defendants, in utter disregard of Cain's rights, summarily
removed the plaintiff from his position while he lay in the
hospital. just days after he had honestly confided to them he had
AIDS.  Cain had wanted to return to his job as regional
partner and pleaded with Croyle to permit him to do so. Having
failed to receive any assurances from the defendants that he
would be allowed to remain with the firm as a partner, Cain
became depressed and upset, so much so that his treating
physician advised the defendants that they should not visit him
again until he could recuperate more fully. Yet, two days later
the defendants told Cain what he already knew, that he had been
terminated.

The defendants were well aware that Cain would require a short
period to recover and that his condition was improving. They
refused, however, to attempt even the most meager form of
accommodation or endeavor to ascertain whether he could do the
work of regional partner. They did not bother to consult with the
plaintiff or wait until he had exhausted his sick time before
taking action against him.  At best, the defendants offered him
an entry-level position, which paid about half of his annual
salary of $44,000.  This was despite the fact that Cain had shown
himself to be a brilliant attorney with a promising future. He
had been selected by the defendants to participate in their Fast
Track Program had performed in such an outstanding manner that he
had been promoted to regional partner, and had earned a ten
percent raise in salary only months after starting with the firm.
Within days of learning Cain had AIDS, the defendants switched
this young lawyer onto another fast track- one calculated to
remove him from the organization.

In the weeks immediately prior to his diagnosis, the plaintiff
had experienced physical difficulties, complained of being tired,
and began to do and say things that were inconsistent with his
former self. The record is devoid of any evidence that the
defendants considered that the conduct which they now
characterize as showing he was a poor regional partner may well
have been a manifestation of his AIDS condition. The defendants
did not wait for him to receive treatment. They did not afford
him an opportunity to prove he could be a productive, functioning
partner in the firm. Their actions were a corrupt assault on the
dignity of the plaintiff. The Court assesses $50,000 in punitive
damages against the defendants.

In consequence, the plaintiff is awarded total damages in the
amount of $1 57,-888.18.  An order follows.

                              ORDER

AND NOW, this 3d day of April, 1990, for the reasons set forth in
this Court's Memorandum of April 3, 1990;

IT IS ORDERED that judgment in the above captioned action is
entered in favor of Plaintiffs and that Defendants shall pay to
Plaintiffs the sum of one hundred and fifty seven thousand, eight
hundred and eighty eight dollars and eighteen cents ($157,888.18)
in damages.

1.Dr. Pistole's testimony was introduced by trial deposition.
During the deposition. the defendants objected to his opinion on
be ground that Dr. Pistole was not qualified to address the
plaintiffs mental health. This is incorrect. He had formal
psychiatric training while in medical school. More importantly,
Dr. Pistole has seen hundreds of AIDS patients. many of whom
suffer from milder forms of depression, which he treats.  He also
works in conjunction with mental health specialists if an AIDS
patient is beset by acute psychological difficulties.  This
experience and on-the-job training is more than sufficient. See
Habecker v. Coppedoy Corp., 893 F2d 49 (3d Cir-1900).  Dr.
Pistole, as treating physician, has had the most contact with the
plaintiff over the longest period of time. In the Court's view,
his conclusions therefore are entitled to great weight.