Summary
holding that a "reasonable accommodation for a disability can include 'permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment'" (quoting Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1168 (10th Cir. 1996))
Summary of this case from O'Malley v. Dowd Mktg.Opinion
CIVIL ACTION NO. 01-CV-2237
August 19, 2003
MEMORANDUM AND ORDER
Plaintiff Wesley A. Congleton brings this wrongful termination suit against his former employer, Defendant Weil McLain, pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. § 951 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., alleging that Defendant discriminated against him because of his disability and retaliated against him when he sought reasonable accommodation under the ADA and because he cooperated with a former co-worker pursuing her claims of sex discrimination and sexual harassment against Defendant. Now before the Court is Defendant's Motion for Summary Judgment. For the following reasons, the Court will grant the Motion.
I. Background
In the light most favorable to Plaintiff as the non-moving party, the relevant facts are as follows. Plaintiff began working for Defendant in 1994 as a sales representative. (Amended Compl. ¶ 10.) In May 1999, Plaintiff began experiencing problems with his vision and was diagnosed with a detached retina. (Dep. of Wayne H. Dunn, M.D. ("Dunn Dep.") at 7.) He underwent eye surgery on May 10, 1999 and again on June 14, 1999. (Id.) As a result, Plaintiff was unable to work in any capacity from May 10, 1999 until September 13, 1999, and his left-eye vision was reduced to 20/200 for the next year and a half. (Dunn Dep. at 8, 22-26, 41.) His left eye remains impaired, with 20/80 vision, and this condition is permanent. (Dunn Dep. at 45, 60.) However, his vision in his right eye has consistently been 20/25 or better. (Dunn Dep. at 15, 23, 41-42, 45-46.) Nevertheless, Plaintiff completely lacks depth perception, has a limited field of vision, often walks into objects and people, and cannot see things clearly on his left side. (Dep. of Wesley Congleton ("Congleton Dep.") at 94; Dunn Dep. at 21-22.)
Plaintiff returned to work on September 13, 1999 with no restrictions other than to refrain from heavy lifting, an activity which is not ordinarily required for his position. (Dunn Dep. at 3, 18-19, 31.) At that time, Plaintiff was able to work full-time, drive a car, watch television, read, and perform his normal daily activities. (Dunn Dep. at 6, 21.) Plaintiff states that when he returned to work, his supervisor, William Price ("Price"), saw him as "damaged goods" and did not talk to him, write to him, or call him about his job performance during the four months before he was terminated. (Congleton Dep. at 76.) After his return to work, Price told him "don't get your other eye poked out" because if he did he would be "totally useless". (Congleton Dep. at 160-162, 174, 175.) plaintiff's eye condition neither impaired his performance nor prevented him from performing any of the tasks required by his job. (Congleton Dep. at 61, 64-65, 136.) Further, Plaintiff did not ask for any accommodation for his impairment while working for Defendant and receives no accommodation in his present job in the same industry. (Congleton Dep. at 61, 64.) Sometime between September and November of 1999, Plaintiff informed Price that his eye condition would require additional surgery but that he did not know when it would occur or how much time off he would need. (Congleton Dep. at 66, 137-38, 143-44.)
This comment was made by Price when he and Plaintiff were at an adult entertainment club. (Congleton Dep. 160-162.)
On January 3, 2000, Plaintiff suffered from a prolapsed bowel which required surgery and necessitated absence from work until January 28, 2000. However, Plaintiff admits that the bowel condition was temporary and that he does not consider himself disabled or regarded as disabled by Defendant based on this condition. (Congleton Dep. at 74, 138, 160.)
On plaintiff's performance review for 1999, which was prepared in January of 2000, the first item Price noted was plaintiff's 31/2 months of disability leave during 1999. (PL Opp., Ex. 8.) On February 2, 2000, at the meeting during which Plaintiff was terminated, Regional Manager Curt Givan told him that the people at Defendant's headquarters were "very, very concerned about [his] health." (Congleton Dep. at 87.) Price echoed this "concern" at the meeting stating that the company believed Plaintiff "would not be able to handle the job due to [his] health problems." (Verified EEOC Charge at 2.) Furthermore, Eric L. Nelson, Defendant's Human Resources Vice-President, has admitted that he would consider a person who was "blind in one eye" to be "disabled". (Dep. of Eric L. Nelson ("Nelson Dep.") at 7.)
Plaintiff states in his Opposition Brief to the Motion for Summary Judgment, that Givan testified that Price raised plaintiff's "medical problems" when discussing termination with other decision-makers prior to the termination meeting. (PL Opp. at 7.) However, Plaintiff mischaracterized Givan's testimony. The record reflects that Givan testified that during the termination meeting Price mentioned "medical problems" to Plaintiff as an explanation for his termination. (Dep. of Curt V. Givan at 80-81.) Thus, there is no evidence on the record that plaintiff's condition was discussed by the decision-makers in deciding to terminate him.
On April 27, 2000, fewer than 90 days after being fired, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), which was cross-filed with the Pennsylvania Human Relations Commission ("PHRC"), alleging disability discrimination in violation of the ADA, discrimination in violation of the Family and Medical Leave Act, and retaliation in violation of Title VII ("Original Charge"). (Amended Compl. ¶ 6, Ex. A.)
In the Original Charge, Plaintiff identified Title VII as "the Civil Rights Act of 1964."
The Original Charge was subsequently amended, resulting in the filing of a revised charge with the EEOC, which was time-stamped as having been received by the EEOC on February 1, 2001 ("Amended Charge"), almost a year after plaintiff's termination. (Amended Compl. ¶ 6, Ex. B.) The Amended Charge alleged disability discrimination and retaliation for seeking a reasonable accommodation under the ADA and for cooperating as a witness in a co-worker's sex discrimination/sexual harassment case. (Am. Compl. Ex. B.) On February 28, 2001, the EEOC issued Plaintiff a "right-to-sue" letter acknowledging that more than 180 days had passed since the filing of Plaintiff s Original Charge. (Am. Compl. ¶ 7, Ex. C.)
On May 7, 2001, Plaintiff filed an initial Complaint alleging discrimination and retaliation in violation of the ADA and the PHRA, and retaliation in violation of Title VII. On June 15, 2001, he filed an Amended Complaint asserting the same claims.
II. Legal Standard
In deciding a motion for summary judgment under Federal Rule of Civil Procedure 56, "the test is whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Med. Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (citing Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). "Summary judgment will not lie if the dispute about a material fact is `genuine', that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986). The Court must examine the evidence in the light most favorable to the non-moving party, and resolve all reasonable inferences in that party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, "there can be `no genuine issue as to any material fact' . . . [where the non-moving party's] complete failure of proof concerning an essential element of [its] case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
III. Analysis
A. Disability Discrimination Claims
Plaintiff alleges that he was illegally discriminated against by Defendant because of a disability in violation of the ADA and PHRA. The ADA prohibits discrimination in employment on the basis of disability:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12111(a).
The PHRA includes a similar provision. See 43 Pa. Cons. Stat. § 955(a). "The PHRA is basically the same as the ADA in relevant respects and `Pennsylvania courts . . . generally interpret the PHRA in accord with its federal counterparts.'" Rinehimer v. Cemcolift. Inc., 292 F.3d 375, 382 (3d Cir. 2002) (quoting Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)). Accordingly, the Court will analyze the ADA and PHRA claims simultaneously.
In order to establish a prima facie case of disparate treatment under the ADA, a plaintiff must show: (1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an adverse employment decision as a result of discrimination. Shaner v. Synthes USA, 204 F.3d 494, 500 (3d Cir. 2000) (citing Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998) and Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998)).
Once a plaintiff establishes a prima facie case, the burden of production then shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the unfavorable treatment. Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000) (citing McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); Keller v. Orix Credit Alliance. Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)). If the defendant produces a legitimate, nondiscriminatory reason, the plaintiff can defeat summary judgment only by pointing to some direct or circumstantial evidence from which a fact-finder could either reasonably: "(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." Simpson v. Kay Jewelers, 142 F.3d 639, 644 (3d Cir. 1998) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
An individual will be considered disabled under the ADA if he or she: "(A) [has] a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) [has] a record of having such an impairment; or (C) [is] regarded as having such an impairment." Id. § 12102(2). Plaintiff argues that he has a disability both because his left-eye blindness is an impairment that substantially limits the major life activity of seeing and because Defendant regarded him as having an impairment that substantially limits the major life activity of seeing or of working.
1. Whether Plaintiff has an Actual Disability
Defendant first argues that plaintiff's impairment does not render him "disabled" as defined by the ADA because he is not substantially limited by it in a major life activity. "Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment substantially limits a major life activity." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002). The term "substantially limiting" means: (1) the inability to perform a major life activity that the average person in the general population can perform or (2) a significant restriction as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to that of the average person in the general population. 29 C.F.R. § 1630.2(j)(1)(i)-(ii). Factors to consider when determining whether an impairment is substantially limiting include: (1) the nature and severity of the impairment; (2) the duration or expected duration of the impairment; and (3) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2).
Accordingly, "a temporary impairment, such as recuperation from surgery, will generally not qualify as a disability under the ADA." See Pollard v. High's of Baltimore. 281 F.3d 462, 468-69 (4th Cir. 2002) (holding that nine months of medical leave did not demonstrate that plaintiff had permanent or long-term impairment that substantially restricted a major life activity); McDonald v. Department of Public Welfare. 62 F.3d 92, 95-96 (3d Cir. 1995) (holding that Plaintiff who was fired after taking two months off to recuperate from abdominal surgery was not "disabled" under the ADA because "the Act contemplates an impairment of a permanent nature") Thus, a short-term completely disabling condition such as that which Plaintiff suffered during his medical leave does not constitute "disability under the ADA.
Plaintiff contends that his left-eye blindness and resulting monocular vision substantially limit him in the major life activity of seeing. Although seeing is considered a major life activity under the ADA, Sutton v. United Airlines. Inc., 527 U.S. 471, 480 (1999), the Supreme Court has held that monocular vision is not a per se disability. Albertson's. Inc. v. Kirkingburg, 527 U.S. 555, 566-67 (1999) ("[W]hile some impairments may invariably cause a substantial limitation of a major life activity, we cannot say that monocularity does."). Instead, "monocular individuals, like others claiming the Act's protection, [must] prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial." Id at 567. Sutton. 527 U.S. at 483 ("[W]hether a person has a disability under the ADA is an individualized inquiry."); EEOC v. Aiken. 306 F.3d 704 (9th Cir. 2002) ("We believe a fair reading of Albertson's, Sutton and Toyota requires that for a monocular individual to show that his impairment is a disability, the impairment must prevent or severely restrict use of his eyesight compared with how unimpaired individuals normally use their eyesight in daily life.").
Here, Plaintiff lacks depth perception, has a limited field of vision, has no peripheral vision on his left side and cannot see objects on his left side clearly. (Congleton Dep. at 94; Dunn Dep. at 21-22.) However, as plaintiff's treating physician explained, most people with monocular vision are able to accommodate for this lack of depth perception and peripheral vision through adjustments in the brain and by turning of the head. (Dunn Dep. at 59-60.) See Albertson's. 527 U.S. at 565-66 ("measures undertaken, whether consciously or not, with the body's own systems" must be taken into account as mitigating circumstances weighing against a finding of disability). Indeed, Plaintiff must have learned to compensate for these impairments because, at the time he returned to work in September 1999, he could drive a car, watch television, read, and perform his normal daily activities. (Dunn Dep. at 6, 21.) Further, he admits that he needs no accommodation to perform the tasks required by his job. (Congleton Dep. at 61, 64-65, 136.) In fact, Plantiff has failed to identify any daily activity that his condition prevents or substantially limits him from doing. Knoll v. Southeastern Pennsylvania Transp. Authority, 2002 WL 31045145, *5 (E.D. Pa. 2002) (stating that a claim of actual disability would lack merit for a monocular individual who admits that his condition does not impair his ability to engage in any daily or work-related activity or hobby). Accordingly, the Court concludes that no reasonable jury could find that plaintiff's condition substantially limits the major life activity of seeing. See Flores v. American Airlines. Inc., 184 F. Supp.2d 1287, 1292 (S.D. Fla. 2002) (granting summary judgment where "Plaintiff has not presented any probative evidence that he is prevented from performing any daily activities . . . [and he] can drive, cook, use a computer, . . . work [and] . . . take woodworking and cooking classes"). 2. Whether Plaintiff Was "Regarded As" Disabled
See also Rubink v. Roadway Express. Inc., 2002 U.S. App. LEXIS 9920, at *1, *3-*4 (8th Cir. 2002) (affirming district court holding that individual blinded in one eye who could perform all tasks he could perform prior to his accident was not substantially limited in the major life activity of seeing or working); Cardwell v. Board of Education. 2001 U.S. Dist. LEXIS 14095, at *9-10 (E.D. Ill. 2001) (granting summary judgment where plaintiff's partial blindness in one eye did not affect his daily activities, his ability to drive, or his ability to care for himself).
Even though Plaintiff cannot prove an actual disability cognizable under the ADA, he may recover if Defendant regarded him as disabled as defined by the Act. Sutton. 527 U.S. at 489. There are two ways in which an individual may be "regarded as" having a disability under the ADA: (1) an employer mistakenly believes that an individual has an impairment that substantially limits one or more major life activities; or (2) an employer mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities. Id. "In both cases, it is necessary that [the employer] entertain misperceptions about the individual." Id.
Plaintiff first argues that Defendant perceived his actual visual impairment to be substantially limiting to his major life activity of seeing. The only facts he points to in support of this proposition are that Nelson, Defendant's Human Resources Vice-President, stated that he would consider a person blind in one eye to be "disabled" and Price's comment that if he poked out his other eye he would be "useless". However, "to be covered under the `regarded as' prong of the ADA the employer must regard the employee to be suffering from an impairment within the meaning of the statutes, not just that the employer believed the employee to be somehow disabled." Rinehimer v. Cemcolift. Inc., 292 F.3d 375 (3d Cir. 2002). Thus, "[l]iability attaches only to a mistake that causes the employer to perceive the employee as disabled within the meaning of the ADA, i.e., a mistake that leads the employer to think that the employee is substantially limited in a major life activity." Taylor v. Pathmark Stores. Inc., 177 F.3d 180, 192 (3d Cir. 1999); see also Gordon v. D.L. Hamm Assoc., Inc., 100 F.3d 907, 913 (11th Cir. 1996) ("[A]s with real impairments . . . a perceived impairment must be substantially limiting and significant."). Here, Plaintiff fails to present any evidence that his supervisors perceived his visual impairment to substantially limit or significantly affect his ability to see. To the contrary, there is evidence that they were aware that he could drive, work full time without "medical restrictions", and do all the tasks that his position as a sales representative required. (Congleton Dep. at 64-65; Nelson Dep. 29-32.)
Next, Plaintiff argues that Defendant regarded him as being substantially limited in the major life activity of working because his superiors cited his "medical problems" and "concerns about his health" as reasons for his termination. In support of this contention he also cites Price's deposition testimony that "when you have happy people, they do good jobs and they don't have health problems" and that "healthy workers . . . produce results". (Dep. of William J. Price at 133-34.) "Substantially limit[ed]" in the activity of working means that a plaintiff is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs." 29 C.F.R. § 1630.2(j)(3)(i). Thus, the mere "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id. "When the major life activity under consideration is that of working, the statutory phrase `substantially limits' requires, at a minimum, that plaintiff allege [that his employer regarded him as] unable to work in a broad class of jobs." Sutton. 527 U.S. at 491-92. Here, at most, Defendant perceived that plaintiff's disability prevented him from performing his particular job in a satisfactory manner; a misperception which cannot serve as a basis for an ADA claim. See Ryan v. Grae Rybicki. P.C., 135 F.3d 867, 872-73 (2d Cir. 1998) (holding that employer's comment that "this job is too stressful for you because you have colitis" at most signifies that it regarded her as unable to perform that specific job and affirming summary judgment in favor of employer on "regarded as" ADA claim).
Moreover, the fact that supervisors express concern for an employee's health does not necessarily mean that they consider a condition to be a substantial limitation to a major life activity. Johnson v. Boardman Petroleum. 923 F. Supp. 1563 (S.D. Ga. 1996). In Johnson, the court held that to construe the ADA to prohibit such behavior would serve to "dehumanize their relationships with their employees for fear that showing concern for and recognizing their employees' [health] problems would land them in court facing a discrimination claim based upon a perceived . . . disability." Johnson, 923 F. Supp. at 1568-69. Accordingly, the Court finds that Plaintiff has failed to present sufficient evidence to permit a reasonable fact-finder to conclude that Defendant regarded Plaintiff as disabled under the ADA.
Because Plaintiff cannot satisfy the first requirement of his prima facie case by showing that he is either actually disabled or regarded as disabled under the ADA, the Court will grant summary judgment in Defendant's favor with regard to plaintiff's disability discrimination claims.
B. Retaliation Claims
1. Retaliation for Requesting Reasonable Accommodation
Plaintiff alleges that Defendant retaliated against him for taking and requesting reasonable accommodation for his disability in violation of the ADA and PHRA. See 42 U.S.C. § 12203. Specifically, Plaintiff contends that Defendant terminated him because he took temporary medical leave and expressed the need to take additional temporary medical leave for further eye surgery. To establish a prima facie case of retaliation under the ADA, a plaintiff-employee must show that: 1) he engaged in protected employee activity; 2) the defendant-employer took adverse action against the employee, either contemporaneous with or after the occurrence of the protected activity in which the employee engaged; and 3) there exists a causal connection between the employee's protected activity and the adverse action taken by the employer. Williams v. Philadelphia Housing Authority. 230 F. Supp.2d 631, 637 (E.D. Pa. 2002) (citing Shaner v. Synthes. 204 F.3d 494, 500 (3d Cir. 2000)).
42 U.S.C. § 12203 provides in relevant part:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge . . . under [the ADA] . . . It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by [the ADA].42 U.S.C. § 12203 (1990).
Generally, because "the ADA retaliation provision protects `any individual' who has opposed any act or practice made unlawful by the ADA or who has made a charge under the ADA. . . . an individual who is adjudged not to be a `qualified individual with a disability' may still pursue a retaliation claim under the ADA." Krouse v. American Sterilizer Co., 126 F.3d 494, 502 (3d Cir. 1997) (citing Soileau v. Guilford of Maine. Inc., 105 F.3d 12, 16 (1st Cir. 1997) (plaintiff may assert ADA retaliation claim "even if the underlying claim of disability fails"); see also Little v. Southeastern Pennsylvania Transp. Authority. 2003 WL 1793528, *4 (E.D. Pa. 2003). Here, the fact that Plaintiff is not disabled under the ADA is nevertheless relevant because the protected activity that he alleges is the taking and requesting medical leave, which he contends are the same as seeking "reasonable accommodation" for his eye condition.
Providing reasonable accommodation for a disability can include "permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment." Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1168 (10th Cir. 1996) (quoting 29 C.F.R. Pt. 1630, Appendix to Part 1630 — Interpretive Guidance to Title I of the ADA, § 1630.2(o)). However, for leave to be considered an accommodation it must be taken or requested in order to make an employee able to perform his or her job. Id. (holding that plaintiff had a claim for failure to accommodate where she "conced[ed] that she was unable to perform the essential functions of her job without accommodation [and] argued that her impairment was clearly remediable" by providing unpaid leave). Here, Plaintiff merely took medical leave to undergo surgery after an eye injury and told his employer upon his return that he "needed additional surgery for [his] eye." (Congleton Dep. at 64.) He never informed Defendant that the leave was necessary to accommodate his condition. Moreover, he admits that he could perform the tasks required by his job upon his return to work and that the additional surgery was thus not necessary to make him able to work. Accordingly, no reasonable jury could find that there was an action by Plaintiff which Defendant could have construed as a request for reasonable accommodation. Plaintiff, therefore, was not engaging in an activity that is protected under the ADA. Because Plaintiff has not satisfied the first prong by showing he engaged in a "protected activity, his claims for retaliation based on his alleged requests for reasonable accommodations fail.
2. Retaliation for Participation in Co-Worker's Sexual Discrimination Case
Plaintiff also seeks relief under Title VII and the PHRA for Defendant's alleged retaliation against him based on his participation as a witness in support of the sex discrimination case of his co-worker, Joan Konrad. A plaintiff seeking relief pursuant to Title VII must exhaust administrative remedies by filing charges with the EEOC within 180 days after the alleged unlawful practice, or within 300 days if proceedings were initially instituted with a state or local agency. 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a) (incorporating § 2000e-5 into the ADA's enforcement provisions). Likewise, the PHRA requires plaintiff's to file charges with the appropriate administrative agency within 180 days after the alleged discriminatory act. 43 Pa. C.S.A. § 959(h). The filing of a charge with the EEOC is a jurisdictional prerequisite to a civil action under Title VII. Hicks v. ABT Associates. Inc., 572 F.2d 960, 964 (3d Cir. 1987); 42 U.S.C. § 2000e-5(e), 2000e-5(f).
Here, Defendant terminated plaintiff's employment on February 4, 2000, and both the Original Charge and Amended Charge identify the latest date on which discrimination allegedly took place as February 4, 2000. (Am. Compl. at 37; Exs. A, B thereto). Plaintiff filed the Original Charge with the EEOC on April 27, 2000, fewer than 90 days after being fired, but did not file the Amended Charge until February 1, 2001, well over 300 days after his termination. (Am. Compl. ¶ 6, Ex. A.) "Once a charge of some sort is filed with the EEOC . . . the scope of a resulting private civil action in the district court is `defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'"Hicks. 572 F.2d at 967 (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)). "[T]he reason behind the requirement that allegations not contained in an EEOC charge cannot be contained in the complaint is that the defendant must have notice of the charge, and the EEOC must have the opportunity to investigate and conciliate the charge, in order to attempt to obtain voluntary compliance with Title VII." Hoffman v. R.I. Enterprises. Inc., 50 F. Supp.2d 393, 399-400 (M.D. Pa. 1999) (citing Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989) ("[A]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.").
In the instant case, Plaintiff has failed to present any evidence that his claim of retaliation for participation in Konrad's case could have reasonably been expected to grow out of the Original Charge. While the Original Charge did include the statement, "I also believe that I was retaliated against in violation of the Civil Rights Act", it does not include any description or details of the basis of such a claim. In fact, it fails to mention Konrad or the fact that Plaintiff was participating in any way in the "protected activity" of a co-worker. See Merriweather v. Philadelphia Federation of Teachers Health Welfare Fund, 2001 WL 695042, at *3 — *4 (E.D. Pa. 2001) (holding that race discrimination claim was not fairly within the scope of age discrimination claim where Plaintiff failed to mention anything about the white person with whom he was being compared in his original charge such as his race, positions offered to him or that plaintiff was more qualified than he). Instead, the Original Charge described only circumstances and incidents relating to his claims of discrimination and retaliation based on his disability. The Third Circuit was faced with similar factual circumstances, in Spindler v. SEPTA. 2002 WL 31059196 (3d Cir. 2002), where a plaintiff timely filed an administrative complaint alleging disability discrimination but failed to allege racial discrimination until the statutory deadlines had passed. Id. at 2-3. The Splinder court held that where a plaintiff "uniformly qualified his claims of discrimination with references to his sleep apnea or more generally to his disability or medical condition", the EEOC investigation would be focused on the "gravamen of the complaint-disability discrimination" and that, therefore, plaintiff's charge of racial discrimnation does not fall fairly within the scope of either his original charge or the related investigation. Id. at 3. Although the Court allowed plaintiff's sexual harassment claim to survive Defendant's Motion to Dismiss (See Mem. and Order dated March 22, 2002, at 6-7), under the more stringent summary judgment standard, Plaintiff has failed to elicit any evidence through the course of discovery to support his proposition that the EEOC would have reasonably investigated his participation in Konrad's sex discrimination / sexual harassment case in its investigation of the disability-based claims alleged in the Original Charge. See Antol v. Perry. 82 F.3d 1291 (3d Cir. 1996) (affirming summary judgment where plaintiff failed to exhaust administrative remedies on gender discrimination claim because such claim was not fairly within scope of EEOC proceedings investigating disability discrimination claim). Accordingly, because this Court lacks jurisdiction of his claims of retaliation for participation in Konrad's case, summary judgment will be granted as to those claims.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant's Motion for Summary Judgment. An appropriate Order follows.
ORDER
AND NOW, this day of August, 2003, upon consideration of Defendant's Motion for Summary Judgment (docket no. 17), plaintiff's Response (docket no. 21), Defendant's Reply (docket no. 23), and plaintiff's Supplemental Memorandum (docket no. 25),IT IS ORDERED that:
1. The Motion is GRANTED for the reasons stated in the accompanying Memorandum.
2. JUDGMENT is entered in favor of Defendant and against Plaintiff on all Counts of the Amended Complaint.
3. This case is CLOSED for statistical purposes.