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MALONE v. SPECIALTY PRODUCTS & INSULATION CO.

February 17, 2000

DAVID P. MALONE, PLAINTIFF,
V.
SPECIALTY PRODUCTS & INSULATION CO. AND IREX CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Joyner, District Judge.

MEMORANDUM AND ORDER

Plaintiff, David P. Malone, has sued Specialty Products Insulation Co. ("Specialty Products"), and Irex Corporation ("Irex"), asserting claims under the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981, the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. § 951 et seq., and claims for fraud or misrepresentation and for failure to provide a safe workplace. Plaintiff's claim for fraud or misrepresentation was dismissed by this Court in its Memorandum and Order of August 13, 1998. Presently before the Court is Defendants' Motion for Summary Judgment. For the following reasons, Defendant's Motion is granted in part and denied in part.

BACKGROUND

Plaintiff, who is asthmatic, was an employee of Defendants from 1988 to 1997. When Plaintiff was employed, many of Defendants' employees smoked cigarettes while at work, which aggravated Plaintiff's asthma. On several occasions Plaintiff complained to managers Ernest Iulinetti and Ray Horan about smoking in the warehouse area where he worked, and requested that Defendants act to prevent this smoking. Defendants' personnel policies prohibited smoking on company property, a policy that was apparently not enforced. Plaintiff contends that despite his requests, Defendants failed to accommodate his disability. Plaintiff's medical experts believe that Plaintiff's asthma was aggravated by his exposure to cigarette smoke while at work.

While he was employed by Defendants, Plaintiff was hospitalized three times for severe asthma attacks that he says were caused by exposure to cigarette smoke while at work. The first such hospitalization occurred in September 1995, when Plaintiff was exposed to the residue of cigarette smoke in one of Defendants' company vans. He missed four months of work as a result of that asthma attack. Plaintiff's second hospitalization occurred on April 12, 1996, and kept Plaintiff out of work for ten days. Plaintiff's third hospitalization occurred on January 20, 1997. He attempted to work from home after this hospitalization, but in June, 1997 he found this impossible and stopped working altogether. Plaintiff is still unable to work, and currently receives social security benefits.

Plaintiff's Complaint states causes of action under the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981, the Pennsylvania Human Relations Act, 43 Pa.C.S.A. § 951, et seq., as well as asserting negligence and fraud claims. The fraud claim has previously been dismissed by this Court.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether any factual issues exist to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505). Rather, we will grant summary judgment unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256, 106 S.Ct. 2505. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

II. The Statute of Limitations

Defendants argue that Plaintiff failed to comply with the statute of limitations for his administrative claim, and that his ADA claim is therefore time-barred. See Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 878 (3d Cir. 1990) (stating that if a Plaintiff fails to properly file with the EEOC, the District Court lacks jurisdiction over the claim). Defendants assert, in their Motion, that "since the Plaintiff filed his charge of discrimination, initially, with the EEOC, the applicable statute of limitations period is 180 days." Defendants' Motion at 9 n. 4 (emphasis in original). Defendants are referring to 42 U.S.C. § 2000e-5(e), which states that if an administrative claim is filed with the EEOC before it is filed with a state or local agency, the statute of limitations is 180-days rather than the normal 300-days.

Defendants' argument conflicts with the Supreme Court's holding in EEOC v. Commercial Office Products Co., 486 U.S. 107, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988). In that case the plaintiff had filed a complaint with the EEOC 290 days after the alleged discrimination. The EEOC subsequently sent the complaint to the relevant state agency, either voluntarily or because Plaintiff had requested that her complaint be dual-filed. The Court held that the 300-day filing period is available regardless of the state filing. Id. at 124, 108 S.Ct. 1666. That rule has been followed by Courts in this District. See, e.g., Bullock v. Balis & Co., 1999 WL 527792 at *3 (E.D.Pa. 1999) (citing Commercial Office Products Co. for the proposition that "[t]he 300 day extended period for filing a charge with the EEOC is available to a plaintiff regardless of whether the plaintiff timely filed a charge with its state agency."); Melincoff v. East Norriton Physician Service, Inc., 1998 WL 254971 at 6-7 (E.D.Pa. 1998). Defendants' argument is therefore incorrect; the appropriate statute of limitations for Plaintiff's administrative claim is 300-days.

Defendants also argue that Plaintiff became aware of his claim in September, 1995, and thus the statute of limitations began to run at that time. Plaintiff responds that the "continuing violation theory" is appropriate in this case. Under this theory, "when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period." Brenner v. Local 514, United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1295 (3d. Cir. 1991). See also Rush v. Scott Specialty Gases, 113 F.3d 476, 481 (3d Cir. 1997). Plaintiff requested an accommodation for his disability on January 6, 1997, which he contends Defendants failed to respond to appropriately. He filed his EEOC charge sixty three days later, on March 11, 1997. Thus, at least one alleged act of non-accommodation falls within the statute of limitations. The continuing violation theory is appropriate where the conduct in question constitutes a continuous pattern, as opposed to unrelated, isolated incidents. ...


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