Opinion
Civil Action No. 03-CV-5477.
September 29, 2004
MEMORANDUM AND ORDER
Plaintiff Angelo Sessa brings this action against Defendant Sears, Roebuck, and Co., Inc. alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"). Now before the Court is Defendant's Motion to Dismiss the Complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief can be granted. For the reasons that follow, Defendant's Motion will be granted.
I. Factual Background and Procedural History
Plaintiff filed a Complaint on September 30, 2003 alleging that Defendant violated the Americans with Disabilities Act by failing to provide him with an accommodation for his alleged disability. According to the allegations, Plaintiff was hired by Defendant on or about May 29, 1979 as a repair technician. He was diagnosed with Becker's Muscular Dystrophy on or about September 24, 2001. On September 25, 2001, Plaintiff provided Defendant with a note from his physician advising that, as a result of his illness, he was restricted to light duty work, and that same day Defendant denied Plaintiff's request for an accommodation. See Plaintiff's Sur Reply to the Motion to Dismiss, n. 1. Plaintiff claims that he later discovered the existence of a number of light duty positions for which he was qualified, but which were never offered to him. He further alleges that two other employees who became disabled around the time of his disability, had been provided light duty positions to accommodate their respective disabilities.
Plaintiff claims that rather than providing him with light duty work, Defendant instructed him to apply for short term disability, which he received from August 14, 2001 until December 31, 2001. From January 12, 2002, Plaintiff received long term disability benefits. Defendant terminated Plaintiff's employment on or about August 29, 2002, approximately nine months prior to his fifty-fifth birthday, when he claims he would have been eligible to receive pension benefits in the form of a lump sum payment of $86,000. Plaintiff contends that because Defendant refused to provide him with light duty work, he received far less than he would have earned in wages.
According to the dates provided by Plaintiff, he apparently applied for and received short-term disability benefits for over one month before he requested the light duty work and over one month before his diagnosis with Becker's Muscular Dystrophy.See Plaintiff's Complaint ¶¶ 8, 9 and 16.
Plaintiff claims that Defendant violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq., because he was disabled and with an accommodation he could have performed the various light duty positions available. See 42 U.S.C. §§ 12102(2), 12111(8). He claims Defendant discriminated against him: (1) by treating him in a manner materially different from other individuals similarly situated; (2) by instructing him to obtain short and then long term disability benefits, rather than enabling him to remain employed until retirement with full pension benefits, and then terminating him in August 2002; and, (3) by permitting employees with work related injuries (receiving workers compensation) to obtain light duty work in order to accommodate their respective disabilities while generally denying this opportunity to employees injured while not on duty. See Complaint ¶ 23. Plaintiff claims that as a result of Defendant's violations of the ADA, he suffered substantial financial damages and emotional harm.
Defendant contends that Plaintiff's claim is barred by the 300-day limitation period for filing a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff filed a Charge of Discrimination with the EEOC on December 24, 2002. The Charge, like the Complaint, focused on Defendant's alleged refusal to accommodate Plaintiff's disability and allow him to return to work. Plaintiff received a Notice of Right to Sue on or about July 2, 2003. The Complaint was filed on September 30, 2003. On December 11, 2003, Defendant filed the Motion to Dismiss for Failure to State a Claim under Fed.R.Civ.P. 12(b)(6) now before the Court.
II. Legal Standard
When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments, and must accept as true all well-pleaded allegations and view them in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
This Court may consider the EEOC Charge, although not attached to the Complaint, without converting the Motion to Dismiss into one for summary judgment. Dixon v. Philadelphia Housing Auth., 43 F. Supp. 2d 543 (E.D. Pa. 1999). Although ordinarily a court is limited to considering the face of the pleadings on a 12(b)(6) motion, the Third Circuit has held that, "a court may consider an undisputedly authentic document that a defendant attaches to a motion to dismiss if the plaintiff's claims are based on that document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). As in Dixon, the Plaintiff in this case attached the right to sue letter to the Complaint, and referenced the EEOC process in the Complaint itself. See Complaint, ¶ 4 and Exhibit A.
III. Analysis
The ADA adopts the enforcement scheme and remedies of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e)-4-2000(e)-9. See 42 U.S.C. § 12117(a). The timely filing of a Charge with the EEOC is a prerequisite to a civil suit. See West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). A claimant who wishes to bring a civil suit must first file a charge of discrimination with the EEOC within 300 days of the alleged discriminatory act. 42 U.S.C. § 2000(e)-5(e). The statute of limitations begins to run when the Plaintiff's cause of action accrues. See Oshiver v. Leven, Fishbein, Sedran, Burman, 38 F.3d 1380, 1385-87 (3d Cir. 1994) (noting that a claim accrues in a federal cause of action as soon as a potential claimant either is aware or should have been aware of the existence of and source of an injury). If a plaintiff has difficulty identifying precisely when the allegedly illegal conduct occurred or if a violation is continuous and ongoing, the filing requirement is subject to equitable tolling. Gaul v. Zep Manufacturing Co., 2004 WL 234370, *2 (E.D. Pa. Jan. 30, 2004); Zipes v. Transworld Airways, Inc., 455 U.S. 385, 393 (1982) (holding that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling).
Pennsylvania is a deferral state, extending the time for filing a Charge with the EEOC from 180 days as prescribed by the statute to 300 days. Colgan v. Fisher Scientific Co., 935 F.2d. 1407, 1413-15 (3d Cir. 1991).
Plaintiff delayed over 450 days from the refusal of his request for accommodation to file a Charge of Discrimination with the EEOC. He has failed to explain the delay in the filing of the EEOC charge and instead claims that the refusal of the accommodation request and the termination of employment are part of an ongoing pattern of discrimination. Plaintiff contends that the violation in this case is neither an isolated event nor a series of actions, but is instead a pattern and practice of discrimination against him beginning with Defendant's failure to consider a reasonable accommodation for his disability and ending with the termination of his employment. He claims that because his termination is included within this pattern and practice, and his EEOC Charge was filed within 300 days of his termination, all of the preceding incidents must be considered as one continuing violation.
The denial of Plaintiff's proposed accommodation on September 25, 2001, a fact of which Plaintiff was aware, is the primary alleged injury. The Supreme Court has stated that "discrete discriminatory acts," such as "termination, failure to promote, denial of transfer, or refusal to hire," are not actionable if time-barred, even if they are related to acts in timely filed charges. Natl. R.R. Passenger Corp. v. Morgan, 536 U.S. at 101, 114 (2002). This principle extends to a denial or refusal of an accommodation which is a discrete act. Additionally, other courts have specifically held that an employer's rejection of an employee's proposed accommodation is the type of discrete act that must be the subject of a complaint to the EEOC within the statutory period. See Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134-35 (2d Cir. 2003); Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003). Accordingly, September 25, 2001 is the date on which the 300-day limitations period began to run.
To save his claim, Plaintiff must demonstrate that at least one discriminatory act occurred within the actual filing period and that the discriminatory conduct is an ongoing pattern, rather than isolated or sporadic events. West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). Once a plaintiff has demonstrated a continuing violation, he may recover for the entire violation and offer evidence of all events that compose the violation, regardless of whether they fall within the 300 day filing period. See Rush v. Specialty Gases, Inc., 113 F.3d 476, 481 (3d Cir. 1997). If Plaintiff does not establish a continuing violation, he may recover only for conduct within the statutory period. See Gaul v. Zep Manufacturing Co., 2004 WL 234370, *2 (E.D. Pa. Jan. 30, 2004).
While the Eastern District of Pennsylvania has not addressed this identical issue, other district and circuit courts have held that where a termination was merely a subsequent effect of alleged earlier discriminatory action, it does not extend the limitations period. See Seery v. Biogen, Inc., 195 F. Supp. 2d 347, 353 (D. Mass. 2002) (holding the termination of a plaintiff who alleged he had been denied an accommodation as required by the ADA is not enough to extend the statute of limitations period back to encompass the other discriminatory events where the failure to accommodate made it impossible for the plaintiff to properly perform his duties and ultimately resulted in his termination); Colon Quiles v. American Airlines, 133 F. Supp. 2d 151, 157-58 (D.P.R. 2001) (noting where an employee was denied an accommodation then terminated several months later, the termination did not extend the limitations period as it was merely a subsequent effect of the alleged earlier discrimination). Further, the Eastern District has held that, where a plaintiff is claiming termination in violation of the ADA, the statutory period begins to run from the time the plaintiff was on notice that he would not be rehired and not from the date of actual termination. Sawhill v. Med. College of Pennsylvania, 1996 WL 509844, *4-5 (E.D. Pa. Aug. 30, 1996).
In his EEOC Charge of Discrimination, Plaintiff states that he requested and was denied a position in Defendant's light duty program and that he was not provided a reasonable accommodation for his disability. See Charge of Discrimination, Defendant's Motion to Dismiss Exhibit A. Thus, Plaintiff's termination is at best a subsequent effect of the earlier discrimination and does not constitute a discrete act of discrimination within the 300 day statute of limitations.
IV. Conclusion
Because the refusal of Plaintiff's accommodation request is time barred, the Complaint will be dismissed for failure to state a claim on which relief can be granted. An appropriate Order follows.