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United States District Court, E.D. Pennsylvania

July 22, 2004.

WESLEY N. SMITH, Plaintiff,

The opinion of the court was delivered by: JAN DuBOIS, District Judge



AND NOW, this 22nd day of July, 2004, upon consideration of Defendants' Renewed Motion for Summary Judgment (Document No. 28, filed January 26, 2004), Plaintiff's Opposition to Defendant's Renewed Motion for Summary Judgment (Document No. 29, filed February 10, 2004), and Defendants' Reply Memorandum of Law in Support of Their Renewed Motion for Summary Judgment (Document No. 31, filed February 20, 2004), plaintiff's Letter Brief (Doc. No. 33, filed April 5, 2004), and Defendants' Supplemental Memorandum of Law in Support of Their Renewed Motion for Summary Judgment (Doc. No. 34, filed April 16, 2004), for the reasons set forth in the following Memorandum, IT IS ORDERED that Defendants' Renewed Motion for Summary Judgment is DENIED.

  IT IS FURTHER ORDERED that a scheduling conference will be conducted in due course. MEMORANDUM


  Plaintiff Wesley N. Smith filed suit against his former employer, Shared Medical Systems, Inc. ("Shared"), and his managers and/or supervisors at Shared, Millard Jackson and Charles Nash, claiming that he was terminated in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII") (Count I), the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA") (Count II), and the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951 et seq. ("PHRA") (Count III), based on racial, national origin, and disability discrimination. Am. Compl. ¶¶ 4, 6, 21-24.

  Presently before the Court is defendants' Renewed Motion for Summary Judgment. The motion raises only one issue — the question of whether plaintiff's claim is barred by the applicable statute of limitations. For the reasons set forth in the following memorandum, the Court concludes that plaintiff has raised a genuine issue of material fact on the issue of equitable tolling. Accordingly, defendants' Renewed Motion for Summary Judgment is denied.


  Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on July 26, 2002, alleging that defendants discriminated against him on the basis of his race, national origin, and disabilities. Defs.' Renewed Mot. for Summ. J. ("Defs.' Mot.") at 4 & Ex. B (Charge of Discrimination filed by Wesley Smith). The EEOC dismissed plaintiff's claims on August 15, 2002 because they were not timely filed. Id. at Ex. C (EEOC Dismissal and Notice of Rights Form).

  Plaintiff filed a pro se Complaint in this Court on November 8, 2002. After retaining counsel, plaintiff filed an Amended Complaint on September 15, 2003. In the Amended Complaint, plaintiff asserted claims for racial, national origin, and disability discrimination under Title VII, the ADA, and the PHRA.

  Before any discovery, defendants moved for summary judgment on the ground that plaintiff's claims were barred because he had not filed a timely charge with the EEOC. In response, plaintiff argued that medical impairments prevented him from timely filing a charge with the EEOC and these ailments should equitably toll the statute of limitations. By Order dated August 28, 2003, the Court denied defendants' Motion for Summary Judgment without prejudice to defendants' right to file a second motion for summary judgment after completion of relevant discovery.

  Based on the parties' suggestions at the preliminary pretrial conference on September 10, 2003, the Court ordered that discovery should proceed solely on the issue of the timeliness of plaintiff's claims. After completing discovery on this issue, defendants filed the Renewed Motion for Summary Judgment presently before the Court.



  "[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[,]" summary judgment should be granted. Fed.R.Civ.P. 56(c). The Supreme Court describes the summary judgment determination as "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Therefore, "a motion for summary judgment must be granted unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987).

  "[O]n summary judgment, the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-588 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. "If reasonable minds can differ as to the import of proffered evidence that speaks to an issue of material fact, summary judgment should not be granted." Gelover v. Lockheed Martin, 971 F. Supp. 180, 181 (E.D. Pa. 1997).


  Before initiating a suit in federal court under the ADA or Title VII, a plaintiff must file a timely charge with the EEOC. Dockins v. Fluor Daniel/GTI, Inc., No. 98-3035, 2000 U.S. Dist. LEXIS 1176, at * 6 (E.D. Pa. Feb. 8, 2000) (Title VII), Vail v. Harleysville Group, Inc., No. 02-2933, 2003 U.S. Dist. LEXIS 17405, at *6 (E.D. Pa. Aug. 24, 2003) (ADA). A complaint must be filed with the EEOC within 180 days after the alleged unlawful employment practice, unless the aggrieved party has already instituted proceedings with a State or local agency with authority to seek relief from such practice or institute criminal proceedings, such as the Pennsylvania Human Rights Commission ("PHRC"). Dockins, 2000 U.S. Dist. LEXIS 1176, at *6 (citing 42 U.S.C.A. § 2000e-5(e)(1)). Under the PHRA, a plaintiff must file a charge with the PHRC within 180 days after the alleged act of discrimination before initiating suit. 43 Pa. Cons. Stat. Ann. §§ 959(a), 959(h), Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1996).

  "The Third Circuit has held that the requirement that an aggrieved party file a complaint with the EEOC before filing suit in federal court is an integral part of Title VII's statutory scheme." Dockins, 2000 U.S. Dist. LEXIS 1176, at *7. "These preliminary steps [filing charges with the EEOC and receiving a notice of the right to sue from the EEOC] are essential parts of the statutory plan, designed to correct discrimination through administrative conciliation and persuasion if possible, rather than by formal court action. While preliminary requirements for a Title VII action are to be interpreted in a nontechnical fashion, the aggrieved person is not permitted to bypass the administrative process." Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976).

  In this case, plaintiff stipulated that he did not file a charge with the PHRC and that he had only 180 days from the unlawful employment practice to file his charge with the EEOC. Letter Brief at 1. Thus, the Court must determine when this 180 day period started to run.

  "[A] cause of action accrues the moment the plaintiff either is aware, or should be aware, of the existence of and source of an injury." Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 287 (3d Cir. 2003). "[A] claim accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury constitutes a legal wrong." Id.

  In this case, plaintiff's injury was complete and discovered when he was terminated on June 22, 2000. Am. Compl. ¶ 16. By that date, he knew of his injury — the discharge — and the cause of his injury — defendants' decision to terminate him because of his race, national origin, or disabilities. According to the Amended Complaint, plaintiff complained of discrimination to a supervisor prior to his discharge and to defendants' Human Resource Advisor "upon termination." Am. Comp. ¶¶ 17, 19. This allegation is supported by his affidavit in which he states that defendants started investigating his claims on June 23, 2000. Pl.'s Opp'n to Defs.' Renewed Mot. for Summ. J. ("Pl.'s Opp'n") at Wesley Smith Aff. ("W. Smith Aff.") ¶ 45.

  It is clear that plaintiff concluded he was a victim of discrimination at the time of his discharge and his cause of action arose on that date, June 22, 2000. Plaintiff had 180 days from June 22, 2000 to file a charge with the EEOC, that is by December 19, 2000, and he failed to do so.


  Plaintiff acknowledges that he did not file his charge within the required 180 day period but claims he "couldn't, and he didn't until he was medically, physically, and emotionally able to do so without fear of risking his life or increasing his medical inability." Pls.' Opp'n at 11-12. Specifically, plaintiff argues that defendants' representations prevented him from filing a charge with the EEOC for the first forty-five days following his termination and his physical and mental impairments prevented him from filing a charge before the remaining time in the limitations period expired.

  The time limitations for filing a discrimination charge are not jurisdictional and are, therefore, subject to equitable modifications, such as tolling. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). "Although the Supreme Court has repeatedly recognized the equitable tolling doctrine, it also has cautioned that `procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.'" Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999). Following this guidance from the Supreme Court, the Third Circuit has stated "that there are three principal, though not exclusive, situations in which equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Oshiver, 38 F.3d at 1387. Plaintiff has the burden of establishing the facts necessary to justify equitable tolling. Byers v. Follmer Trucking Co., 763 F.2d 599, 600-601 (3d Cir. 1985).


1. Equitable Tolling Based on Defendants' Statements to Plaintiff
  Plaintiff states in his affidavit that "[f]or the first forty five days after being terminated, or from approximately June 23, 2000 to August 7, 2000, I was asked by my employer, in particular, Kim Redding, not to file or pursue my legal rights because they were considering how to evaluate my claims and my interest in retaining my job." W. Smith Aff. ¶ 8. As a result, he argues that the limitations period should be tolled for those forty-five days.

  The Court notes at the outset that this statement in plaintiff's affidavit directly contradicts the allegations of the Amended Complaint. In the Amended Complaint, plaintiff asserts that he told defendants' Human Resource Advisor, Ms. Redding, he was being discriminated against and asked to be reinstated. In response, "Defendant advised Plaintiff that they would not reinstate him and if he didn't like their response, he should sue; Defendants did not advise or discuss whether they had made any investigation into Plaintiff's claims or any results or conclusions they had made regarding same." Am. Compl. ¶ 20. In Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir. 1988), the Third Circuit ruled that a district court can disregard an affidavit that contradicts prior testimony without satisfactory explanation when determining whether a genuine issue of material fact exists. According to the court, "[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id. In a more recent case, the Third Circuit amplified Martin by stating that it was an "extreme" case because the plaintiff offered no explanation for the fact that her affidavit "flatly" contradicted her earlier testimony. Armour v. County of Beaver, 271 F.3d 417, 431 n. 5 (3d Cir. 2001).

  If the Court were to disregard plaintiff's affidavit and rely on the Amended Complaint, it would be clear that the limitations period began to run on the date of plaintiff's termination, June 22, 2000. For the reasons set forth below, the Court concludes that the start date of the limitations period is the same if the Court relies solely on the affidavit.

  "[T]he pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods." Del. State College v. Ricks, 449 U.S. 250, 261 (1980). Thus, if defendants only told plaintiff that they were reviewing his discrimination claim and job status, it is clear that the statute of limitations would not be tolled. However, plaintiff also claims that defendants told him not to pursue his legal rights during this period.

  In Oshiver, the Third Circuit stated that when an employer's acts have "lulled" the plaintiff into foregoing prompt attempts to vindicate his rights "equitable tolling may be appropriate." Oshiver, 38 F.3d at 1387. The Third Circuit, however, has limited the application of equitable tolling to cases in which a "defendant actively misleads the plaintiff regarding the reason for the plaintiff's dismissal." Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d Cir. 1997). In these cases, "the limitations period will be tolled `until the facts which would support the plaintiff's cause of action are apparent, or should be apparent, to a reasonably prudent person.'" Id. For example, in Oshiver the plaintiff alleged that the defendant told her she was fired because there was "no work for her to perform." Id. at 1391. She did not learn until May of 1991 that she had been replaced by a male and that "apparently there was work to do at the firm." Id. The Oshiver court ruled that because the defendant's alleged misrepresentation prevented the plaintiff from discovering her cause of action until May of 1991, the statute of limitations should be equitably tolled until that date. Id. at 1392.

  Although the Third Circuit has limited tolling to employer misrepresentations that prevent a plaintiff from discovering a cause of action, some courts have tolled statutes of limitations when an employer expressly agreed that it would not use the time granted to it for investigating a plaintiff's complaint to prejudice a plaintiff with respect to a statute of limitations. See, e.g. Leake v. Univ. of Cincinnati, 605 F.2d 255, 258 (6th Cir. 1979) (tolling based on defendant's statement that the "time for my investigation will not be used . . . to prejudice [plaintiff's] rights with regard to any statute of limitations."). However, later decisions have limited tolling to situations in which an employer either affirmatively promised to settle a case or made an effort to prevent the claimant from filing a complaint. See Blount v. Shalala, 32 F. Supp.2d 399, 342 (D. Md. 1999), Foutty v. Equifax Servs., Inc., 762 F. Supp. 295, 299 (D. Kan. 1991). For example, an employer's request in Foutty v. Equifax Services, Inc. that the plaintiff "not tak[e] any further action until [the employer] reached a decision on [the plaintiff's] settlement proposal" was held to be insufficient to warrant equitable tolling. Foutty, 762 F. Supp. at 297-98.

  As recounted in plaintiff's affidavit, defendants' request that plaintiff not "file or pursue [his] legal rights" so they could "evaluate [his] claims and [his] interest in retaining [his] job" are similar to the statements in Foutty — an effort to encourage settlement. Under those circumstances, the Court will not toll the statute of limitations based on defendants' alleged comments.

  2. Equitable Tolling Based on Mental and Physical Impairments

  Plaintiff also argues that "consistent with cases finding physical or mental incompetence, a severe medical condition creating that incompetence should likewise afford a basis for equitable tolling." Pl.'s Opp'n at 19.

  In Nara v. Frank, 264 F.3d 310 (3d Cir. 2001), the Third Circuit stated that mental health problems may constitute extraordinary circumstances sufficient to equitably toll the one year statute of limitations for filing a Writ of Habeas Corpus under 28 U.S.C. § 2244(d)(1). In Nara, however, the court concluded that evidence that the petitioner was institutionalized and mentally incompetent was not "a per se reason to toll a statute of limitations" because there must be evidence that the "alleged mental incompetence must somehow have affected the petitioner's ability to file a timely habeas petition." Id. at 312, 320. A similar standard was applied in a decision addressing the tolling of the statute of limitations for filing a charge with the EEOC, Velez v. QVC, Inc., 227 F. Supp.2d 384 (E.D. Pa. 2002). In Velez, the court concluded that a statute of limitations should not be tolled unless there is evidence that the plaintiff is not able to manage his own affairs or understand his legal rights. Id. at 402; see also Dougherty v. Henderson, 155 F. Supp.2d 269, 277 (E.D. Pa. 2001) ("To toll a statute of limitations for mental illness, plaintiff's illness must prevent her from managing her affairs and from understanding and acting on her legal rights.").

  Although a plaintiff has a "high bar to meet" to establish a basis for equitable tolling based on mental incompetence, the bar is even higher for such a claim based on physical ailments. Dougherty, 155 F. Supp.2d at 277. According to one treatise, "making a case for tolling based on physical health problems is very difficult." Lex K. Larson, Employment Discrimination § 72.06[8] (2d ed 2004). For example, in Montgomery v. Frank, 796 F. Supp. 1062 (E.D. Mich. 1992), the court refused to equitably toll the applicable statute of limitations despite evidence that the plaintiff "was suffering from a great deal of pain and had problems walking, standing and even getting out of bed" because it was possible to file a complaint by telephone and, therefore, "there was no need to walk, stand or get out of bed." Id. at 1067. See also McKinley v. Dist. 205 Thornton Twp., No. 99-6127, 2001 U.S. Dist. LEXIS 7474, at *4 (N.D. Ill. May 30, 2001) (stating that a time limitation can be tolled by a physical disability but only in limited circumstances and a "severe migraine headache" was not sufficient for tolling); Portis v. World Omni Fin., No. 00-0047, 2000 U.S. Dist. LEXIS 7667, at *11 (S.D. Ala. May 16, 2000) (finding that neck pain from motor vehicle accident did not support equitable tolling); Brooks v. New York City Hous. Auth., No. 98-5016, 1999 U.S. Dist. LEXIS 8887, at *7-8 (S.D.N.Y. June 11, 1999) (concluding that, despite plaintiff's statement that "he was hospitalized due to a car crash that `left [him] totally disabled' and that he could not `handle business,'" the evidence submitted by plaintiff was not sufficient to justify tolling); but see Eber v. Harris County Hosp. Dist., 130 F. Supp.2d 847, 867 (S.D. Tex. 2001) (tolling appropriate for period that plaintiff was in a coma).

  Plaintiff cited no Third Circuit decisions holding that a physical impairment is sufficient to justify equitable tolling. In the only case in this Circuit found by the Court, Buckalew v. EBI Companies, No. 01-3232, 2002 U.S. Dist. LEXIS 10843 (E.D. Pa. June 5, 2002), the district court refused to equitably toll the time for filing an ADA claim with the EEOC based on a diagnosis of reflex sympathetic dystrophy because the plaintiff was able to make visits to doctors and pursue a worker's compensation claim. Id. at *15.*fn1

  The Court rejects defendants' argument that "plaintiff must demonstrate that his illness prevented him from managing his own affairs and pursuing his legal rights throughout the statutory filing period." Defs.' Mot. at 13-14, Defs.' Reply at 3. Plaintiff is not required to show that he was incapable of filing a charge during the entire statutory period. If his illness was severe enough to warrant tolling for a period of time, the statutory period would be tolled for this period and then restarted when the plaintiff was capable of managing his affairs and pursuing his legal rights. "`Equitable tolling of a statute means only that the running of the statute is suspended, not that the limitations period begins over again." Benge v. United States, 17 F.3d 1286, 1288 (10th Cir. 1994). See also Scary v. Phila. Gas Works, 202 F.R.D. 148, 153 (E.D. Pa. 2001) (suspending running of statute of limitations for periods of "misapprehension"), Sobel v. Eastman Kodak Co., No. 87-6505, 1987 U.S. Dist. LEXIS 6505, at *12-13 (E.D. Pa. July 15, 1987) (stating that EEOC charge was untimely even after limitations period was suspended for five months plaintiff was in hospital). Thus, if the Court concludes that there was a 180 day period in which plaintiff's mental and physical ailments did not prevent him from filing a charge between June 22, 2000, the date of his termination, and July 26, 2002, the date he filed his EEOC charge, his claims are time barred.

  The Court first turns to the evidence of plaintiff's physical and mental impairments between June 22, 2000 and the date of his stroke, November 2, 2000. Plaintiff testified that he was able to speak, write, and use the telephone for the entire period between his termination and his stroke. Id. at 140-41. In addition, plaintiff admitted during a deposition that his physicians did not restrict his activities before November of 2000. W. Smith Dep. I at 148-49. Significantly, plaintiff testified that he was physically able to file an EEOC Complaint before his stroke. W. Smith Dep. II at 165. He was also able to apply for unemployment compensation, submit 500 job applications, travel to seven potential employers, attend job fairs in Washington D.C., and travel to an interview in New Castle, Delaware. W. Smith Dep. II at 87-88, W. Smith Dep. I at 64-72, 78. Although Mrs. Smith claims most of this activity occurred in the months immediately following his termination, she did not say he was incapable of managing his own affairs and understanding his legal rights after this initial period. B. Smith Aff. ¶ 66-68. She states that plaintiff was depressed and had difficulty breathing during this time period, but she does not say that these difficulties prevented him from filing a charge with the EEOC. To the contrary, she acknowledges that her husband's doctors directed him to get out of the house. Id. ¶ 23.

  Based on the evidence presented, the Court concludes that plaintiff was able to file a charge with the EEOC from June 22, 2000 to the date of his stroke, November 2, 2000,*fn2 a period of 132 days. Thus, as of November 2, 2000, plaintiff only had forty-eight days of the 180 day statutory period remaining to file a charge with the EEOC. Plaintiff asserts that his medical and physical ailments prevented him from filing a claim after he suffered his stroke in November of 2000. The Court will briefly summarize the evidence most favorable to plaintiff covering this period of time to determine whether equitable tolling is warranted.

  According to the affidavits of plaintiff and his wife and plaintiff's deposition testimony, plaintiff's physical condition changed significantly after his stroke in November of 2000. W. Smith Aff. ¶ 9. Plaintiff states the stroke "crippled [his] life and disabled [him] to the point where [he] could not speak, comatosed for several days, lost part of [his] hearing, couldn't move the right side of [his] face, write, walk, or survive without medical and personal assistance for a very long period of time." Id. ¶ 19. Plaintiff's wife says in her affidavit that plaintiff was "fully incapacitated" and in the hospital until the first week of December 2000. Pl.'s Opp'n at Aff. of Beatrice Smith ("B. Smith Aff.") ¶¶ 27, 28.

  Mrs. Smith states plaintiff's medical difficulties continued after his release from the hospital. According to her, plaintiff was unable to walk without assistance or a walker and required full time care from his wife and biweekly visits from a nurse. B. Smith Aff. ¶¶ 30, 31. She asserts that his speech was slurred, he was unable to write, button his shirt, bathe himself, or walk upstairs. Id.

  Plaintiff was hospitalized a second time on June 24, 2001. W. Smith Dep. II at 74. His wife claims he was in Wilmington Hospital for about two weeks before being transported to St. Francis Hospital, where he spent another month before his release in August of 2001. B. Smith Aff. ¶ 49-52. During that hospitalization, plaintiff was diagnosed with pericardial effusion, a build-up of excess fluid between the heart and the pericardium, and underwent a procedure to drain this fluid called a pericardial window on June 26, 2001. Defs.' Mot. at 8, W. Smith Dep. II at 79, Ex. 9 (Discharge Summary from St. Francis Healthcare Services).

  Following his second hospitalization, the affidavits of plaintiff and his wife describe months of therapy and adverse reactions to medication. Mrs. Smith asserts that plaintiff was not able to walk, his motor skills were slow, he was unable to write, and his speech was slurred until November of 2001. Id. ¶ 55. According to Mrs. Smith, plaintiff was only able to leave his home to attend therapy sessions during this period. B. Smith Aff. ¶ 56-57. Plaintiff claims his activities were further reduced by the side effects of the medication prescribed after his second hospitalization, including, inter alia, Accupril, Clonidine, Nifedipine, Phenytoin, Triamterene, and Rifmapin. Pl.'s Opp'n at Ex. 1 (Wesley Smith Medication Frequency), Ex. 3 (Rite Aid Customer History Report) at 6-7. According to plaintiff, these medications affected his motor skills and mental health and one medicine, Rifmapin, caused him to lose 150 pounds. W. Smith Aff. ¶¶ 28-31.

  Defendants acknowledge that plaintiff was incapacitated during his hospitalizations. However, they contend he was able to manage his own affairs and understand his legal rights between his hospitalizations and following his second hospitalization. In support of their position, defendants argue that plaintiff's ability to pursue other legal rights demonstrates that he was capable of filing a charge with the EEOC. On this issue, there is evidence that plaintiff was able to file a claim for social security benefits in January of 2001 and that he attended a meeting about a billing dispute with a hospital administrator in February of 2002. W. Smith Dep. I at 91-93, 125, Defs.' Mot. at Ex. 5 (Social Security Administration Disability Report filed January 4, 2001), W. Smith Dep. II at 87-88, B. Smith Aff. ¶¶ 56-57. Courts in this district have held that the ability to file a worker's compensation claim or pursue other legal matters is relevant to the determination of whether a plaintiff is able to manage his own affairs and understand his legal rights. Velez, 227 F. Supp.2d at 402, Powell v. Independence Blue Cross, Inc., No. 95-2509, 1997 U.S. Dist. LEXIS 3866, at *15 (E.D. Pa. Mar. 25, 1997) (finding that the ability to, inter alia, pursue a claim for disability benefits showed that plaintiff was "clearly aware of his legal rights and capable of filing a charge.").

  Defendants also argue that the affidavits of plaintiff and his wife conflict with plaintiff's deposition testimony and that the Court should credit plaintiff's sworn testimony. For example, plaintiff's wife claims that his speech was slurred, he was unable to write, button his shirt, bathe himself, or walk upstairs from the first week of December 2000 until June 2001. Id. ¶¶ 34-38. In contrast, plaintiff testified that he traveled to the Social Security Office in New Castle, Delaware on January 4, 2001 to apply for disability benefits and signed a "Disability Report" during the visit, and the form was produced by defendants. W. Smith Dep. I at 90-93, Defs.' Mot. at Ex. 5 (Social Security Administration Disability Report filed January 4, 2001). To complete his application for social security benefits, plaintiff also submitted a seven page "Daily Activities Questionnaire" to the Social Security Administration on January 17, 2001. According to this signed questionnaire, plaintiff did not require any help to complete the form. Id. at Ex. 6 (Daily Activities Questionnaire). Plaintiff testified at his deposition that he was able to shower himself, shave himself, speak, use the telephone, and write during the same time period. W. Smith Dep. II at 68-69.

  Although the Court recognizes that, under Martin, it can disregard an affidavit that conflicts with sworn testimony, the Court will not disregard the affidavits in this case because plaintiff and his wife offer an explanation for the contradictions between the affidavits and the other evidence. See Armour, 271 F.3d at 431 n. 5. According to plaintiff's affidavit, his memory of events after his stroke is "blurry" and his wife's recollection of this history is more accurate. W. Smith Aff. ¶ 18. His wife agrees that his "memory of medical events, hospitalization stays, was and has remained clouded and unclear. He confuses his hospitalizations, the social and civic events he participated in and his condition during these periods of his illness." B. Smith Aff. ¶ 61.

  The affidavits submitted by plaintiff and his wife specifically address most, if not all, of the testimony and evidence that defendants presented to prove plaintiff was capable of managing his own affairs and understanding his legal rights after his stroke. W. Smith Aff. ¶¶ 38-51, B. Smith Aff. ¶¶ 64-81. For example, both Mr. and Mrs. Smith attempt to neutralize the evidence that plaintiff was able to file a claim for social security benefits. According to plaintiff, "[t]he social security benefits I received in the hospital were applied for and prepared by the social services person there. I may have `applied' because I signed my name but I can't remember for the life of me if the person that did the work was young, old, male or female." W. Smith Aff. ¶ 42. Mrs. Smith's affidavit confirms that the hospital's social services clerk initiated the application for social security benefits. B. Smith Aff. ¶ 71. Although she acknowledges that her husband did make the "short drive" to New Castle to obtain "critical" social security benefits, she insists his doctor "had to sign off on the papers necessary for this application and only allowed Wesley to travel this trip due to the critical need we had to get the assistance." Id. ¶ 72.

  The Court will not credit plaintiff's deposition testimony over the affidavits of plaintiff and his wife on a motion for summary judgment in view of the explanations given by plaintiff and his wife. The affidavits create a genuine issue of material fact with respect to when plaintiff was able to manage his own affairs and understand his legal rights after his stroke on November 2, 2000. Thus, the Court will not rule as a matter of law that plaintiff's claims are time barred.


  For the foregoing reasons, the Court denies defendants' Renewed Motion for Summary Judgment.

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