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