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October 3, 1994


The opinion of the court was delivered by: JOSEPH E. IRENAS

 IRENAS, District Judge:

 Plaintiff Cheryl Bishop ("Bishop") brought this action against defendants Okidata, Inc. ("Okidata"), Chuck Kocher ("Kocher"), and Stephen Boyd ("Boyd") (collectively the "defendants"), alleging that as her employers they discriminated against her on the basis of her disability. Bishop also appended breach of contract and intentional infliction of emotional distress claims under New Jersey state law. The case is now before the court on defendants' motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). The motion is granted in part and denied in part.


 Okidata produces computer peripheral equipment for personal and business applications. In May of 1986, Okidata hired Bishop as a Program Administrator in its Mount Laurel, New Jersey, office, with a starting salary of $ 29,700.

 At all times relevant to this matter, Okidata employed Kocher as its Senior Marketing Manager and Boyd as its Director of Customer Service. In these positions, Kocher was responsible for supervising Bishop, and Boyd was responsible for supervising both Kocher and Bishop.

 At the end of 1986, Bishop was diagnosed with cancer. Bishop's allegations, which are taken as true for the purposes of this motion, indicate that defendants repeatedly discriminated against her because of this disability.

 First, shortly after Bishop was diagnosed with cancer, Okidata's President announced her disability at a management meeting, in violation of company policy regarding confidentiality of employee medical history. (Complaint P 13). Then, between November, 1988, and April, 1993, Bishop applied and was passed over for ten jobs for which she was qualified. (Complaint P 16). Okidata also ordered Bishop to return to work two weeks after her first cancer surgery, refused to allow her to leave work for chemotherapy treatments, demoted her, decreased her salary, made negative comments regarding her cancer at performance evaluations, and failed to advise her of training opportunities. (Complaint PP 18 and 22). This discrimination continued through April, 1993 (Complaint P 19).

 Bishop also claims that Boyd and Kocher individually discriminated against her. In April, 1993, Boyd falsely accused Bishop of spreading rumors regarding her former supervisor and threatened her with discharge. (Complaint P 20). Kocher forced Bishop to work on projects for which she lacked adequate training, excluded her from company-wide training, reprimanded her for taking vacation days, and stated that Okidata should not allow her any vacation because of the number of sick days she took. (Complaint PP 30-34).


 Fed. R. Civ. P. 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief can be granted." In considering a Rule 12(b)(6) motion, the court must accept the allegations of the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). Dismissal of claims under Rule 12(b)(6) should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 Although the court must assume that all alleged facts are true, "it is not . . . proper to assume that the [plaintiff] can prove any facts that it has not alleged." Associated General Contractors of Calif., Inc., v. California State Council of Carpenters, 459 U.S. 519, 526, 74 L. Ed. 2d 723, 103 S. Ct. 897 (1983). Also, when "confronted with [a 12(b)(6)] motion, the court must review the allegations of fact contained in the complaint; for this purpose the court does not consider conclusory recitations of law." Commonwealth of Pennsylvania v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1988) (emphasis added).


 A. Bishop's Claims Under the ADA

 Count One of Bishop's complaint asserts that defendants discriminated against her in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. Count Two alleges that defendants intentionally discriminated against her, and requests compensatory and punitive damages under 42 U.S.C. § 1981a. Defendants request that these claims be dismissed to the extent that they arose before July 26, 1992, the effective date of the relevant portion of the ADA.

 Section 107(a) of the ADA, 42 U.S.C. § 12117(a), gives those who face disability discrimination in the workplace the same remedies as those who are discriminated against on the basis of race or gender in violation of Title VII, 42 U.S.C. § 2000e. Section 1981a allows those with disabilities who face intentional discrimination to recover compensatory and punitive damages. 42 U.S.C. § 1981a(a)(2).

 Section 107 of the ADA, however, did not become effective until July 26, 1992, twenty-four months after its enactment. See Pub. L. No. 101-336 § 108, 104 Stat. 350 (1990). Defendants argue that Section 107 does not apply retroactively, and that therefore they are not liable for any allegedly discriminatory acts that took place before Section 107's effective date.

 The court first notes that "virtually all of the courts considering whether the ADA applies retroactively have concluded that it does not." Aramburu v. Boeing Co., 1993 U.S. Dist. LEXIS 18620, No. 93-4064, 1993 WL 544567, at *2 (D. Kan. Dec. 29, 1993). See also Thompson v. Johnson & Johnson Management Info. Ctr., 783 F. Supp. 893, 898 (D.N.J. 1992), aff'd mem., 993 F.2d 226 (3d Cir. 1993); Raya v. Maryatt Industries, 829 F. Supp. 1169, 1174-75 (N.D. Cal. 1993); Verdon v. Consolidated Rail Corp., 828 F. Supp. 1129, 1140-41 (S.D.N.Y. 1993). Furthermore, the Supreme Court has recently held that the 1991 amendments to the Civil Rights Act, including Section 1981a, do not apply retroactively, bolstering the conclusion that the ADA should apply prospectively only. Landgraf v. U.S.I. Film Products, 128 L. Ed. 2d 229, 114 S. Ct. 1483, 1508 (1994); Rivers v. Roadway Express, 128 L. Ed. 2d 274, 114 S. Ct. 1510 (1994).

 Landgraf and Rivers made clear that courts should not apply statutes affecting substantive rights retroactively absent a clear congressional intent to the contrary. Landgraf, 114 S. Ct. at 1499; Rivers, 114 S. Ct. at 1515. The ADA certainly affects substantive rights, and Bishop does not argue otherwise. Furthermore, Bishop does not point to any congressional intent that the statute should apply retroactively, and we discern none on our own. Thus, we hold that the ADA does not apply retroactively.

 Bishop offers two innovative, but ultimately unsuccessful, arguments to avoid the reach of Landgraf and Rivers. First, she points out that the precise question at issue in Landgraf and Rivers was whether the Civil Rights Act of 1991 should apply to cases pending at the time of its enactment. See Landgraf, 114 S. Ct. at 1489; Rivers, 114 S. Ct. at 1514. Bishop, on the other hand, did not bring suit until after Section 107 of the ADA became effective.

 Second, Bishop argues that much of defendants' conduct took place after the enactment of the ADA, but before its effective date. Bishop argues that defendants therefore had notice that their conduct was unlawful discrimination at the time that it occurred, and may be held liable for it in a suit brought after the effective date of the ADA. In sum, this argument states that the date of enactment governs when conduct became unlawful, while the effective date only governs when an injured party may bring suit to enforce the provisions of the ADA.

 A careful reading of Landgraf and Rivers, however, counsels against accepting Bishop's arguments. First, while these opinions did in fact address cases pending at the time of enactment of the ADA, they both speak in terms of the law effective at the time the allegedly discriminatory conduct occurred. See Landgraf, 114 S. Ct. at 1508 (holding that Section 1981a does not "apply to cases arising before its enactment") (emphasis added); Rivers, 114 S. Ct. at 1520 (holding that Section 102 of the Civil Rights Act of 1991 "does not apply to preenactment conduct.") (emphasis added). Therefore, it is the time that the conduct ...

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