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SAYLOR v. RIDGE

January 8, 1998

JAMES A. SAYLOR and ELIZABETH W. SAYLOR, h/w and THE NATIONAL FEDERATION OF THE BLIND OF PENNSYLVANIA
v.
TOM RIDGE, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA THE PENNSYLVANIA STATE POLICE, PENNSYLVANIA STATE POLICE OFFICE OF CHIEF COUNSEL and OFFICE OF GENERAL COUNSEL



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 January 8, 1998

 This civil action has been brought before the Court on Defendants' Motion to Dismiss portions of Plaintiff's complaint. Following careful consideration of the pleadings and for the reasons set forth in the following paragraphs, the motion shall be granted in part.

 HISTORY OF THE CASE

 Thomas Saylor has been employed as a staff attorney for the Commonwealth of Pennsylvania since July, 1989 assigned to the Pennsylvania State Police. Mr. Saylor is completely blind in his left eye and is legally blind in his right eye, as the result of bilateral high myopia, retinal detachments and hypoperfusion of the optic nerve and retina. (Pl's Complaint, Ps 1-2). Despite his significant visual impairments, plaintiff avers that he is able to perform all of the essential functions of his job, albeit with the assistance of specialized computers and equipment which, among other things, enlarge print to the point where he can see them to read and perform legal research and prepare legal briefs and memoranda. (Complaint, Ps 10, 15).

 According to the allegations in the complaint, in April, 1993 and again in February, 1995, plaintiff made a written request to the Commonwealth for a "reasonable accommodation" within the meaning of the Americans with Disabilities Act, 42 U.S.C. Section 12101, et. seq. in the form of the specialized print-voice converter and computer equipment and printer and for a CD-ROM version of the Pennsylvania Administrative Code and rules. The Commonwealth, however, did not provide Mr. Saylor with the specialized voice converter and computer equipment until July, 1994 and has yet to respond to his request for the Administrative rules and regulations on CD-ROM. In addition, the computer equipment which was ultimately provided was lacking in several respects. *fn1"

 Plaintiff further alleges that in the intervening period between the time he requested the computer equipment and the time it was provided, he was forced to work at home on his own equipment with his wife providing secretarial support. (Complaint, Ps 26-27, 29-32). Although plaintiff advised his employer that he was working at home and the reason why, the Commonwealth refused to pay him for those days on which he worked at home and charged this time against his annual leave. (Complaint, P28).

 Plaintiff submits that as a result of its refusal to reasonably accommodate him in a timely fashion, his job was rendered more difficult and he is less competitive and appears less competent than his sighted counterparts, and he is unfairly being held to the same standards as his co-workers without appropriate accommodation. As a result, plaintiff avers he has suffered undue humiliation, embarrassment, concern, and undue physical, emotional and mental stress. (Complaint, P 33).

 Mr. Saylor further complains that because of the inherent difficulties which he has in performing his job without reasonable accommodation, the Commonwealth has improperly refused to promote him and to provide him with appropriate pay increases. (Complaint, Ps 34-48). Finally, according to plaintiff, the Commonwealth has retaliated against him for making complaints pursuant to the Americans with Disabilities Act by unreasonably criticizing his productivity, negatively evaluating his performance and refusing to promote him. (Complaint, Ps 49-58).

 Based upon these allegations, plaintiff seeks relief under Titles I and II of the ADA, the Rehabilitation Act of 1973, 29 U.S.C. Section 701, et. seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et. seq., the Pennsylvania Human Relations Act, 43 P.S. Section 951, et. seq., and for his wife's loss of consortium under Pennsylvania common law. In addition, as a member of the National Federation for the Blind of Pennsylvania, plaintiff also seeks a court order against defendants requiring them "to promote the hiring and advancement of individuals who are visually impaired." (Complaint, Ps 77-81).

 In response, defendants have filed this motion to dismiss large portions of plaintiffs' complaint. Plaintiffs now agree to the dismissal of their claims under Title VII and the Pennsylvania Human Relations Act and the loss of consortium claim of Mrs. Saylor. Accordingly, those claims shall be dismissed and Counts III, IV and that part of Count V which avers loss of consortium stricken.

 STANDARDS GOVERNING MOTIONS TO DISMISS

 The law is well-settled that in considering a motion to dismiss a pleading under Fed.R.Civ.P. 12(b)(6), all of the allegations contained in the complaint must be taken as true and construed in the light most favorable to the non-moving party. H.J., Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 249-251, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989); Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3rd Cir. 1989). The district courts may grant a motion to dismiss for failure to state a claim upon which relief may be granted only if "it appears beyond a reasonable 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, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 66 (3rd Cir. 1986).

 DISCUSSION

 A. Statute of Limitations

 Among the grounds advanced in their motion, defendants move to dismiss plaintiff's claims under the Rehabilitation Act of 1973, 29 U.S.C. § 701, et. seq., ("RHA") and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101. et. seq., ("ADA") as time-barred. Normally, parties will not learn that a limitations period has expired until discovery and thus a Rule 56 motion for summary judgment is generally the proper vehicle for dismissal on this basis. Jackson v. Nicoletti, 875 F. Supp. 1107, 1108 (E.D.Pa. 1994). As this court has previously observed however, if it is clear from the face of the pleadings that a statute of limitations has expired, dismissal under Rule 12(b)(6) is appropriate. Clark v. Sears, Roebuck & Co., 816 F. Supp. 1064, 1067 (E.D.Pa. 1993).

 Title II of the ADA proscribes the exclusion of any qualified individual with a disability from participation in or receipt of the benefits of the services, programs, or activities of a public entity and makes it unlawful for any such entity to discriminate against disabled persons. 42 U.S.C. § 12132. Unlike Title I, there is no requirement that administrative remedies first be exhausted before suit may be commenced. Bracciale, at *8, citing inter alia, Winfrey v. City of Chicago, 957 F. Supp. 1014, 1022 (N.D.Ill. 1997); Roe v. County Comm'n of Monogalia County, 926 F. Supp. 74, 77 (N.D.W.Va. 1996).

 In turn, the RHA provides in relevant part:

 
No otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or ...

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