United States District Court, E.D. Pennsylvania
July 22, 2004.
WESLEY N. SMITH, Plaintiff,
SHARED MEDICAL SYSTEM; CHARLES NASH; and MILLARD JACKSON, Defendants.
The opinion of the court was delivered by: JAN DuBOIS, District Judge
ORDER AND MEMORANDUM
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
II. PROCEDURAL HISTORY
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.
A. STANDARD FOR SUMMARY JUDGMENT
"[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).
B. TIME LIMITATION FOR FILING A CHARGE WITH THE EEOC
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.
C. EQUITABLE TOLLING
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.
1. Equitable Tolling Based on Defendants' Statements to
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
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.
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
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 (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
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
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
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.
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
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.