United States District Court, W.D. Pennsylvania
September 14, 2005.
EDWARD J. WHELAN, Plaintiff,
TELEDYNE METALWORKING PRODUCTS and ALLEGHENY TECHNOLOGIES, INC., Defendants.
The opinion of the court was delivered by: STANDISH, WILLIAM, Senior District Judge.
On October 29, 2004, Defendants Teledyne Metalworking Products
and Allegheny Technologies, Inc. (collectively, "Defendants")
filed a Motion for Reconsideration (Docket No. 107,"Mot. Recon.")
of the decision of this Court on March 12, 2004, in which we
denied cross-motions for summary judgment by Defendants and by
Plaintiff Edward J. Whelan. Although the motion for
reconsideration was opposed by Mr. Whelan, the Court granted
Defendants' motion on December 16, 2004, and further ordered that
the original motions for summary judgment filed by both parties
would be reconsidered. Based on the arguments of the parties in
support of and in opposition to the original motions for summary
judgment, as well as the arguments pertaining to the motion for
reconsideration, Plaintiff's motion for summary judgment is
denied and Defendants' motion is granted in part and denied in part.
A. Factual Background*fn1
In 1965, Edward J. Whelan began working for a predecessor of
Defendant Teledyne Metalworking Products ("TMP"), based near
Pittsburgh, Pennsylvania. In 1990, Plaintiff was diagnosed with
Stargardt's disease, a progressively degenerative eye condition
which leads to the loss of central vision. Despite this
restriction, he continued to work as an outside salesman for
several years. Like other TMP outside sales personnel, Plaintiff
worked from his home. By 1993, he had advanced to the position of
sales engineer and was living in Woodstock, Connecticut. However,
at approximately the same time, his eye condition advanced to the
point where he asked to be transferred back to the Pittsburgh
area so he could have additional support from his family.
Although the transfer involved a change in division and a
reduction in salary, TMP and Plaintiff were able to arrive at a
mutually agreeable arrangement. When he moved to Pittsburgh, he
continued to work out of his home as an outside salesman for the
TMP Carbide Products ("CP") Division.
Mr. Whelan's vision continued to deteriorate and by 1996 he was
no longer able to perform his assigned work. He and the company arrived at an arrangement whereby he would work, again
out of his home, as a marketing coordinator for the CP Division.
Mr. Whelan received a salary increase with this job change and
TMP reimbursed him for a computer and special adaptive vision
Beginning in 1998, TMP decided to close its CP facilities in
Brantford, Ontario, Hartford, Connecticut, and Huntsville,
Alabama, as part of a corporate consolidation. The manufacturing
and administrative efforts at those locations were consolidated
in Grant, Alabama, where the CP Division had previously been
headquartered. In early 1999, TMP decided that Mr. Whelan's
position as marketing coordinator would also be transferred to
On March 25, 1999, Greg Humphries, Vice President and General
Manager of Teledyne Firth Sterling,*fn2 wrote to Mr. Whelan
via electronic mail. In relevant part, the letter stated:
. . . I wanted to recap our conversation of March 25,
1999. . . . Your position will also need to be
located at Grant, Alabama, in order for us to gain
the needed administrative efficiencies. Additionally,
this move will allow for more interactions with
product management, sales, and the manufacturing
teams so we can create a better marketing strategy. Ed, I would like to offer you this opportunity to
relocate to Grant. Having recently relocated myself,
I know this is never an easy decision. . . .
I have asked Human Resources to send you a copy of
the Relocation Policy to help you in your transition
I am sure you can appreciate the need for planning,
so please let me know by April 30, 1999 of your
Defendants' Motion for Summary Judgment, Docket No. 37, "Defs.'
Mot. Sum. Judg.," Exh. 3.)
On April 27, 1999, Mr. Whelan's attorney, Natalie Ruschell,
wrote to Mr. Humphries, stating that for medical and family
reasons, Mr. Whelan was unwilling to relocate to Alabama. She
asked that he be allowed to continue to perform the job of
marketing coordinator by working from his home in Pittsburgh as
he had for at least four years. (Defs.' Mot. Sum. Judg., Exh. 4.)
The same letter asked Mr. Humphries or his legal counsel to
"engage in communication that is both meaningful and productive
to allow Mr. Whelan the opportunity to continue his employment
with your company while simultaneously accommodating Mr. Whelan
and his circumstances." (Id.)
This began a lengthy exchange of letters between Ms. Ruschell
and Stephen Spolar, an in-house attorney for Allegheny
Technologies, Inc.*fn3 ("ATI.") On March 31, 2000, Lauren McAndrews, an ATI in-house attorney who had replaced Mr. Spolar,
wrote to Ms. Ruschell:
Mr. Whelan was informed a year ago that his position
would be located in Grant, Alabama, with the other
administrative functions of Firth Sterling, and he
was given the opportunity to relocate to Grant. We
would like a response by April 14, 2000, from Mr.
Whelan as to his willingness to relocate to Grant,
and if so, whether he will be able to perform the
duties of Marketing Coordinator with or without
accommodation. If I do not hear from you or Mr.
Whelan prior to close of business on April 14, Mr.
Whelan's employment will be terminated.
(Defs.' Mot. Sum. Judg., Exh. 12.)
Ms. Ruschell responded on April 14, 2000, with another letter
reiterating her client's position on the relocation and
accommodation issues, to which Ms. McAndrews replied on May 4,
We have attempted to work with you and Mr. Whelan to
identify an appropriate accommodation. The
accommodation you and he have suggested (creation of
a new position for him in Pittsburgh) is not required
by law. It is our interpretation of your [April 14,
2000] letter that Mr. Whelan is not willing to
relocate to Grant, AL, and that he has voluntarily
terminated his employment with Metalworking Products
effective April 14, 2000.
(Defs.' Mot. Sum. Judg., Exh. 14.)
B. Procedural Background
On December 14, 2000, Mr. Whelan filed a charge of disability
discrimination with the Equal Employment Opportunity Commission
("EEOC"), asking that it be cross-filed with the Pennsylvania
Human Relations Commission. (Defs.' Mot. Sum. Judg., Exh. 16.) Mr. Whelan claimed that TMP had discriminated
against him in violation of the Americans with Disabilities Act,
42 U.S.C. §§ 12101 et seq. ("ADA") and of the Pennsylvania
Human Relations Act ("PHRA"), 43 Pa. C.S. § 955. Mr. Whelan
subsequently filed suit in this Court on July 16, 2001.
Mr. Whelan's Complaint stated three causes of action in
violation of the ADA: failure to provide a reasonable
accommodation; wrongful termination; and failure to participate
in good faith in the ADA "interactive process." He also claimed
he was entitled to punitive damages for each of the three
proceeding claims because of Defendants' alleged malice in these
violations, and that the same actions violated the PHRA.
On September 17, 2001, Defendants filed a Motion to Dismiss
(Docket No. 2), based on four arguments. First, Defendants argued
that Mr. Whelan's charge of discrimination was not filed with the
EEOC before the 300-day statute of limitations had run. Second,
the three claims for punitive damages (Counts II, IV, and VI of
the Complaint) were not independent causes of action and
therefore should be dismissed. In addition, Count V, claiming
Defendants had failed to participate in the interactive process,
was redundant with the failure-to-accommodate claim and should be
dismissed as a separate cause of action. Finally, they argued
that ATI was not Plaintiff's "employer" as that term is
understood under the ADA and PHRA, and therefore it should be dismissed as a Defendant.
We denied Defendants' Motion to Dismiss, without prejudice to
their right to renew the same arguments in a motion for summary
judgment. (Order of Court, April 19, 2002, Docket No. 10.)
Following more than a year of discovery, Plaintiff filed a Motion
for Summary Judgment (Docket No. 34) on October 10, 2003, as did
Defendants (Docket No. 37.) The Court held oral argument on March
12, 2004, and, as noted above, denied both motions, stating
briefly that because material issues of fact existed which should
be tried to a jury, neither party was entitled to judgment in its
favor as a matter of law. (Order of Court, March 12, 2004, Docket
Eight months later, Defendants filed a Motion for
Reconsideration. In that motion, Defendants claimed that contrary
to the original decision entered with regard to their motion for
summary judgment, there was no material dispute on the following
(1) ATI was not Whelan's employer and should be
dismissed from the case;
(2) TMP engaged in good faith in the interactive
process, thus Count V should be dismissed; and
(3) to the extent Plaintiff attempted to pursue a
disparate treatment claim, that claim was disavowed
by Mr. Whelan's counsel in oral argument on March 12,
2004, and should be dismissed.
(Defs.' Mot. Recon., ¶¶ 2-5.) The Court decided that in fairness to both parties and in order
to streamline the issues to be presented at trial, we should
explain in detail the rationale for our conclusion in March 2004
that there were issues which could not be resolved without
inappropriate fact-finding by the Court. We also recognized that
we had not ruled on three issues which could be decided as a
matter of law, specifically, whether ATI was Mr. Whelan's
employer for purposes of this litigation, whether Plaintiff's
charge of discrimination was timely filed with the EEOC and PHRC,
and whether Mr. Whelan had stated and maintained a claim of
C. Jurisdiction and Venue
Jurisdiction is based on Mr. Whelan's ADA claims pursuant to
28 U.S.C. § 1331 and the PHRA claims pursuant to the supplemental
jurisdiction provided by 28 U.S.C. § 1367(a). Venue is
appropriate in this Court inasmuch as the events giving rise to
the claims occurred within this judicial district.
28 U.S.C. § 1391(b).
II. STANDARD FOR SUMMARY JUDGMENT
A court may grant summary judgment if the party so moving can
show, based on "pleadings, depositions, answers to
interrogatories, and admissions on file together with the
affidavits, if any, . . . that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)); Rossetti v.
Busch Entertainment Corp., 87 F. Supp.2d 415 (E.D. Pa. 2000). If
a reasonable jury could return a verdict for the non-movant, the
dispute is genuine and if, under substantive law, the dispute
would affect the outcome of the suit, it is material. A factual
dispute between the parties that is both genuine and material
will defeat a motion for summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In considering a motion for summary judgment, the court must
view all the evidence in the light most favorable to the
non-movant, accept the non-movant's version of the facts as true,
and resolve any conflicts in its favor. Rossetti, id.,
citing Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), and Big Apple BMW, Inc. v. BMW
of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). In
short, the movant must show that if the pleadings, depositions
and other evidentiary material submitted to date were admissible
at trial, the opposing party could not carry its burden of proof
based on that evidence and a reasonable jury would thus decide
all genuine material disputes in favor of the movant. Celotex
Corp. v. Catrett, 477 U.S. 317, 318 (1986).
Once the moving party has demonstrated that there are no
genuine issues of material fact, the burden shifts to the
non-moving party to "make a showing sufficient to establish the existence of every element essential to his case, based on the
affidavits or by depositions and admissions on file." Celotex,
id. at 322-23; Rossetti, id.; Fed.R.Civ.P. 56(e). The sum
of the affirmative evidence to be presented by the non-moving
party must be such that a reasonable jury could find in its
favor, and it cannot simply reiterate unsupported assertions,
conclusory allegations or mere suspicious beliefs. Liberty
Lobby, 477 U.S. at 250-252; Groman v. Township of Manalapan,
47 F.3d 628, 633 (3d Cir. 1995).
A. Relevant Law and a Summary of Plaintiff's Claims
1. The Americans with Disabilities Act: The ADA was designed
to "provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities." 42 U.S.C. § 12101(b)(1). The basic premise of the
ADA is that "no covered entity shall discriminate against a
qualified individual with a disability because of the disability
. . . in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a). For purposes of summary
judgment, the parties do not dispute that Mr. Whelan was a "qualified individual with a disability"*fn4 as that phrase
is understood in ADA litigation or that Defendants are
"employers" as defined in 42 U.S.C. § 12111(5)(A).
Three provisions of the ADA are relevant to this case. First,
the ADA provides that an employer must make "reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an . . .
employee, unless [the employer] can demonstrate that the
accommodation would impose an undue hardship on the operation of
the [employer's] business." 42 U.S.C. § 12112(b)(5)(A). As
applied to the facts herein, the term "reasonable accommodation"
could include modifying facilities to make them readily
accessible to and usable by individuals with disabilities,
modifying the employee's working conditions such as job
restructuring or reassignment, or acquiring specialized equipment
or devices. 42 U.S.C. § 12111(9). As ADA case law has evolved, it
is clear that the forms of reasonable accommodation suggested in the statute itself merely provide a starting point for an
expansive range of actions which may be devised to accommodate
Mr. Whelan claims in Count I of his Complaint that TMP and ATI
failed to provide him with a reasonable accommodation in
connection with the transfer to Alabama. Specifically, he alleges
that he proposed a reasonable accommodation, i.e., to continue
working out of his home as he had done for the previous four
years, and that this accommodation would not have caused his
employer undue hardship. By failing to make this or any other
accommodation in connection with the proposed transfer, Mr.
Whelan contends that Defendants violated the ADA. (Complaint, ¶¶
Second, an employer violates the ADA when an employee who is a
qualified individual with a disability suffers an adverse
employment action as a result of that disability. Williams v.
Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir.
2004), citing Taylor v. Phoenixville School Dist.,
184 F.3d 296, 306 (3d Cir. 1999), and Gaul v. Lucent Technologies,
134 F.3d 576, 580 (3d Cir. 1998). As in other types of cases alleging
discriminatory discharge, the plaintiff must establish that he
was terminated "because of" the disability. Williams,
380 F.3d at 774, quoting 42 U.S.C. § 12112(a).
In Count III of his Complaint, Mr. Whelan alleges that
Defendants violated the ADA by refusing to provide accommodations
which would facilitate his transfer to Alabama and then fired him
for failing to accept the transfer. He argues that this firing
"was done on the basis of Plaintiff's disability." (Complaint, ¶¶
Finally, the ADA implementing regulations*fn6 require the
employer and employee to undertake "an informal, interactive
process . . . [to] identify the precise limitations resulting
from the disability and potential reasonable accommodations that
could overcome those limitations." 29 C.F.R. § 1630.2(o)(3). In
general, an employee's request for an accommodation triggers this
interactive process in which "both parties have a duty to assist
in the search for appropriate reasonable accommodation and to act
in good faith." Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997).*fn7 "A party that obstructs or delays the
interactive process is not acting in good faith. A party that
fails to communicate, by way of initiation or response, may also
be acting in bad faith." Taylor, 184 F.3d at 312, quoting
Bultemeyer v. Ft. Wayne Community Schools, 100 F.3d 1281, 1285
(7th Cir. 1996).
Count V of Mr. Whelan's Complaint alleges that although he
"engaged in and attempted to engage in good faith communications
and negotiations to come to a reasonable accommodation"
(Complaint, ¶ 46), "Defendants failed to engage in the
interactive process by failing to respond in a timely manner to
the Plaintiff and his attorney's communications, obstructing the
interactive process, and delaying the interactive process."
(Id., ¶ 48.)
2. The Pennsylvania Human Relations Act: The PHRA also
addresses disability discrimination. See 43 Pa. C.S. § 955(a),
stating in relevant part, "it shall be an unlawful discriminatory
practice . . . for any employer because of the . . . non-job
related handicap or disability . . . of any individual . . . to
discharge from employment . . . or to otherwise discriminate
against such individual." Pennsylvania courts "generally
interpret the PHRA in accord with its federal counterparts."
Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). However, we need not dwell on this point because, as
discussed below, Mr. Whelan's PHRA claim was untimely.
B. Threshold Issues
As noted above, resolving three issues as a matter of law will
allow the case to proceed more quickly at trial.
1. Timeliness of Plaintiff's EEOC Claim:*fn8 In their
Brief in Support of the Motion for Summary Judgment,*fn9
Defendants argue that all of Mr. Whelan's claims should be
dismissed because he failed to file a timely claim of
discrimination with the EEOC. (Docket No. 38, "Defs.' Sum. Judg.
Brief," at 41-46.) In short, they claim that although Mr. Whelan
may have submitted a document entitled "General Information" to
the EEOC on October 10, 2000, this document did not satisfy the
requirement that a claimant file a verified complaint with the
EEOC within 300 days of the date when he became or should have
become aware that he had been discriminated against because of
his disability. Mr. Whelan did not sign and verify the official
"Charge of Discrimination" until December 14, 2000.
As is well-established, in order to bring suit under the ADA, a
plaintiff is normally required to file a charge of discrimination
with the EEOC within 180 days after the alleged unlawful
employment practice took place. However, Pennsylvania is a
"deferral state," that is, a state which has its own laws
prohibiting discriminatory employment practices and authorizing a
state agency, namely, the Pennsylvania Human Relations
Commission, to pursue such claims. In deferral states, a
plaintiff has 300, not 180, days from the date of the alleged
unlawful employment practice in which to file a charge with the
EEOC, even if he never files with the state agency.
42 U.S.C. § 2000e-5(e)(1); Seredinski v. Clifton Precision Prods. Co.,
776 F.2d 56, 61 (3d Cir. 1985); Colgan v. Fisher Scientific Co.,
935 F.2d 1407, 1414-15 (3d Cir. 1991).
Citing Plaintiff's General Information document, Defendants
argue that Plaintiff knew when he received the March 25, 1999
e-mail from Mr. Humphries that he would face termination if he
did not relocate to Alabama. Therefore, whether made on October
10, 2000, or December 14, 2000, the claim of discrimination was
untimely. (Defs.' Sum. Judg. Brief at 42 and Exh. 17 at
unnumbered page 5.) They argue that this case is "very similar"
to Watson v. Eastman Kodak Co., 235 F.3d 851 (3d Cir. 2000). In
Watson, the plaintiff was advised on February 4, 1997, that he was being removed from his position as an account executive due
to poor performance. In the same letter, he was told he would be
allowed to remain at Kodak only until March 7, 1997, unless he
found another position with the company. When he was unable to do
so, Kodak terminated his employment on that date. Because Watson
did not submit an EEOC charge until 330 days after he received
the termination letter, the district court granted Kodak's
summary judgment motion based on the plaintiff's failure to
timely exhaust his administrative remedies. Watson,
235 F.3d at 853-854.
The Court of Appeals affirmed, beginning its analysis by
stating that "the crucial issue in this case is whether the
actionable adverse employment decision was the one to separate
Watson from the position of Account Executive or the one to
terminate his employment with Kodak entirely." Watson,
235 F.3d at 854. Applying the Supreme Court's holding in Delaware State
College v. Ricks, 449 U.S. 250 (1980), the Court upheld the
lower court's decision that the plaintiff's unlawful termination
claim accrued on February 4, 1997, the date he received the
letter from his supervisor. Citing Ricks, the Court of Appeals
noted that "the key inquiry was identifying the precise alleged
unlawful employment practice," and the date on which it occurred.
As pointed out in Ricks, the Third Circuit held that "the
proper focus is upon the time of the discriminatory acts, not
upon the time at which the consequences of the acts became most painful."
Watson, id. at 855 (internal quotations and citations
We find Watson distinguishable from this case on its facts.
Here, Plaintiff received a letter from his supervisor on March
25, 1999, offering "the opportunity to relocate" and asking for
his decision by April 30, 1999. (Defs.' Sum. Judg. Mot., Exh. 3.)
Contrary to Defendants' assertion, nothing in that letter advised
Mr. Whelan that if he did not accept the transfer, he would be
terminated. As Plaintiff states, "the injury here was not a
proposed transfer, but a proposed transfer which did not include
reasonable accommodation." (Plaintiff's Brief in Opposition to
Defendants' Motion for Summary Judgment, Docket No. 41, "Plf.'s
Opp. to Sum. Judg.," at 10.) The question of reasonable
accommodation was not addressed in the March 25, 1999 e-mail. Nor
did anyone from TMP respond to Ms. Ruschell's letter of April 27,
1999, in which she explicitly stated, "Mr. Whelan is unable to
accept your proposal," by telling her or Mr. Whelan that if he
were unwilling to transfer, he would be terminated. Instead, the
parties corresponded for a year as if they were mutually
attempting to work out the accommodation problem. In sum, unlike
the unequivocal letter terminating the plaintiff's employment in
Watson, the March 31, 1999 e-mail did not even imply that Mr.
Whelan's employment would be terminated if he did not relocate. In addition, Mr. Whelan does not complain only of the decision
to terminate his employment, he also claims that Defendants
failed to accommodate his disability and failed to participate in
the interactive process in good faith. Even as late as December
27, 1999, Mr. Spolar provided a copy of the marketing coordinator
job description and asked Mr. Whelan to advise him of his ability
to "satisfactorily perform such duties, with or without
accommodation, and what your collective thoughts are on any
accommodation, if needed." (Defs.' Mot. Sum. Judg., Exh. 10.)
Moreover, even though this letter states that "TMP still believes
that Ed's relocation is necessary to perform this function," a
reasonable person could conclude that the relocation question
remained unresolved, given that Mr. Spolar also wrote that he was
providing medical facility information "in order to facilitate
the move and alleviate Ed's worries if he chooses to relocate."
(Id., emphasis added.)
Defendants alternatively argue that the 300-day period began to
run on April 27, 1999, when Ms. Ruschell proposed that Mr. Whelan
be allowed to remain in Pittsburgh because he should have known
that this accommodation might be denied. (Defs.' Sum. Judg. Brief
at 45.) The April 27, 1999 letter merely opened the interactive
process; Defendants did not unequivocally reject the requested
accommodation until March 31, 2000. It would seem patently unfair
and contrary to the policy goals of the ADA for an employer to go through the motions of the interactive process,
then argue that the employee's claim was time-barred because he
"should have known" that the parties would not arrive at a
mutually agreeable solution within 300 days of his request for a
Left to its own analysis, the Court would have concluded that
the filing period began on March 31, 2000, when Mr. Whelan was
given an ultimatum that his employment would be terminated if he
did not advise TMP by April 14, 2000, if he were willing to
relocate and whether he would be able to perform the duties of
marketing coordinator, without or without
accommodation.*fn11 (Defs.' Sum. Judg. Mot., Exh. 12.) However, Plaintiff concedes
that the December 27, 1999 letter from Mr. Spolar alerted him and
his attorney to the fact that no accommodations would be offered
to him in connection with the transfer to Alabama, thus starting
the limitations period for his claims that Defendants failed to
offer a reasonable accommodation and failed to participate in the
interactive process. (Plf.'s Opp. to Sum. Judg. at 8-9.) He also
argues that the clock began to run on his termination claim as of
April 14, 2000, a clearly untenable position in light of the
holding of Ricks, given the content of Ms. McAndrews' March 31,
1999 letter. If we agree that the December 27, 1999 letter was
the earliest triggering event, Plaintiff's filing on December 14,
2000, was untimely except for his termination claim. Mr. Whelan
argues, however, that the General Information statement filed on
October 14, 2000, satisfied the EEOC requirements. A recent
Supreme Court decision, Edelman v. Lynchburg College,
535 U.S. 106 (2002), supports his position.*fn12
Leonard Edelman, a professor at Lynchburg College, faxed a letter to an EEOC field office, complaining of employment
discrimination. Although the fax was submitted before the end of
the 300-day limitations period, Edelman did not provide a
verified charge until after the period had expired. The district
court held that the unverified letter was not a "charge"
according to EEOC regulations, dismissed the case, and was
affirmed by the Court of Appeals for the Fourth Circuit. The
Supreme Court reversed, finding that an oath or affirmation of a
charge is only required "by the time the employer is obliged to
respond to the charge, not at the time an employee files it with
the EEOC." Edelman, 535 U.S. at 113.
The focus of the Edelman decision was to align the
requirement that a charge "be in writing under oath or
affirmation" (42 U.S.C. § 2000e-5(b)), with the requirement that
it be filed within 300 days of the alleged unlawful employment
practice (42 U.S.C. § 2000e-5(e)(1)). Justice Souter, writing for
seven members of the Court, explained that the purpose of the
timing requirement "is to encourage a potential charging party to
raise a discrimination claim before it gets stale, for the sake
of a reliable result and a speedy end to any illegal practice
that proves out," while the verification requirement "has the
different object of protecting employers from the disruption and
expense of responding to a claim unless a complainant is serious
enough and sure enough to support it by oath subject to liability for perjury." Edelman, 535 U.S. at 112-113. The verification
provision is meant to protect employers against the "catchpenny
claims of disgruntled but not necessarily aggrieved employees" in
that the employer need not respond to the charge when it is
initially filed it with the EEOC, but only after it is verified.
Id. at 115. A refusal to allow the verification provision to
relate back to the original filing would also be inconsistent
with "a long history" of allowing relation-back of a subsequent
verification of an unverified filing when a statute requires that
it be made under oath. Id. at 116.
The decision in Edelman reinforces, albeit for different
reasoning, the long-held position of the Third Circuit. In
Michelson v. Exxon Research & Engineering Co., 808 F.2d 1005,
1010 (3d Cir. 1987), the Court of Appeals, while concluding that
"the mere existence of a writing" is not sufficient to constitute
an EEOC charge of discrimination, held that where the notice to
the EEOC is "of a kind that would convince a reasonable person
that the grievant has manifested an intent to activate the Act's
machinery" the notice may be deemed timely. The writing must
provide sufficient detail "to allow the EEOC to investigate
immediately [instead of] await further communication from the
plaintiff before investigation." Michelson, id. (internal
citations and quotations omitted); see also, Benn v. First
Judicial Dist., CA No. 98-5730, 2000 U.S. Dist. LEXIS 6659, *9 (E.D. Pa. Apr. 26, 2000), applying Michelson and noting that
EEOC implementing regulation 29 C.F.R. § 1601.12(b) provides that
a "charge is sufficient when the Commission receives from the
person making the charge a written statement sufficiently precise
to identify the parties, and to describe generally the action or
practices complained of."
The parties disagree as to whether the October 10, 2000, filing
was "verified," i.e., whether it was sworn under oath subject to
perjury. Applying Edelman's holding regarding relation-back of
a verification and Michelson's description of the information
necessary in the preliminary filing, we conclude that the General
Information document provides sufficient information to allow the
EEOC to proceed with an investigation, and that even if it were
not verified on October 10, the verification made under oath on
December 12, 2000, is sufficient to satisfy the 300-day filing
Defendants' Motion for Summary Judgment, based on the alleged
untimeliness of Plaintiff's EEOC filing, is therefore denied.
However, as Defendants point out, even the EEOC filing on
October 10, 2000, does not save Mr. Whelan's claims under the
PHRA. (Defs.' Sum. Judg. Brief at 46, n. 8.) For those claims to
be timely, he had to have filed a complaint with the PHRC within
180 days of the date of the alleged act of discrimination, that is, not later than September 29, 2000. 43 Pa. C.S. § 959(h);
Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997),
cert. denied, 522 U.S. 914 (1997) ("Pennsylvania courts have
strictly interpreted" this filing requirement.) There is no
evidence that any documentation was filed with the PHRC prior to
the request in Mr. Whelan's December 14, 2000 EEOC charge of
discrimination that it should be cross-filed with the state
agency. "Filing of an administrative claim within the 300-day
EEOC deadline but beyond the 180-day PHRA deadline does not
preserve a PHRA claim." Braithwaite v. Accupac, Inc., CA No.
00-5405, 2002 U.S. Dist. LEXIS 25044, *12 (E.D. Pa. Dec. 12,
2002), citing Sharp v. BW/IP Int'l, Inc., 991 F.Supp. 451,
457 (E.D. Pa. 1998).
In his Brief in Opposition to the Motion for Summary Judgment,
Plaintiff offers no argument to refute Defendants' position.
Plaintiff's claims under the PHRA in Count VII are therefore
dismissed for failure to timely exhaust his administrative
2. Whether ATI was Mr. Whelan's "Employer" as that Term is
Understood under the ADA: Defendants argue that the evidence is
undisputed that Mr. Whelan was employed by TMP, not by ATI, at
the time of the events giving rise to this litigation.
(Defendants' Brief in Support of Motion for Reconsideration,
Docket No. 108, "Defs.' Recon. Brief," at 1-9.) They base this argument on such evidence as:
Mr. Whelan's acknowledgment at his deposition that
TMP not ATI was his employer;
the indirect and extended corporate relationship
between the two entities;
the fact that the individuals responsible for
transferring Mr. Whelan's position to Alabama,
analyzing his request to remain in Pittsburgh, and
making day-to-day determinations about his job
status, salary, and pension were all employees of
the fact that Mr. Whelan was subject to TMP polices
and procedures, not those of ATI.
(Defs.' Recon. Brief at 2-4.)
Defendants argue the only fact tying ATI to this case, apart
from the fact that it is ultimately TMP's parent corporation, is
that TMP utilized ATI's legal department to correspond with Mr.
Whelan's attorney. (Defs.' Recon. Brief at 4.)
To refute this contention, Plaintiff offers a single argument,
based on the question "did the parent company effectuate the
Plaintiff's discharge," understandably concluding that it
did.*fn13 As evidence, he points to the fact that every
piece of correspondence between his attorney and Defendants,
including his termination letter, was on ATI letterhead. (Plaintiff's Brief in Opposition to Defendants' Motion for
Reconsideration, Docket No. 124, "Plf.'s Opp. to Mot. Recon.," at
3.) Plaintiff contends that, contrary to Defendants' position,
public policy concerns, specifically the remedial public policy
underlying anti-discrimination laws, weigh in favor of the
broadest possible definition of "employer."*fn14 (Id. at
4.) Moreover, he claims that his pension benefits come from the
Allegheny Technologies Master Pension Trust and are administered
by the Allegheny Technologies, Inc. Benefits Center. (Id.)
As Plaintiff acknowledges, the controlling case in this Circuit
on the question of which of two or more entities was the
plaintiff's employer for purposes of assigning liability under
anti-discrimination statutes has long been Marzano v. Computer Science Corp., Inc., 91 F.3d 497 (3d Cir. 1996). The plaintiff
in Marzano argued that she was initially hired by the parent
corporation, CSC; that she "continued to believe" she was a CSC
employee despite a merger between CSC and her direct employer,
CSC Partners; that after the merger, she continued to receive
paychecks bearing the name of CSC and to belong to the CSC
pension plan; that the relevant CSC Partners' leave policy was
based on information provided by CSC; and that she "continued to
have regular involvement with CSC corporate as part of her job
responsibilities." Marzano, 91 F.3d at 514. Despite all this
evidence, the Court concluded:
Even if we accept all of Ms. Marzano's statements as
true, we conclude that these facts, taken together,
do not demonstrate that CSC and CSC Partners were "so
interrelated and integrated in their activities,
labor relations and management" that we should pierce
the corporate veil. Her only direct involvement with
CSC at the time of her layoff was her participation
in CSC's pension plan. In addition, she offers no
evidence that CSC was in any way, shape or form
involved in CSC Partners' management or personnel
decisions. For this reason, we conclude that the
charges against CSC should be dismissed.
Marzano, 91 F.3d at 514 (remanding the case to the District
Court with instructions to dismiss all claims against CSC.)
While the Marzano holding was expressed in terms of piercing
the corporate veil to determine if the two entities were so
interrelated that they should both be held liable as the
plaintiff's employer, the Third Circuit has recently revisited
this issue and established a three-part test for answering this question. In Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 85
(3d Cir. 2003), cert. denied, 541 U.S. 959 (2004), the Court
adopted a framework explicitly "tailored to Title VII's policy
goals." Briefly stated, this test requires a court "to consider a
company and its affiliates a single employer under Title
VII*fn15 (1) when a company has split itself into entities
with less than fifteen employees intending to evade Title VII's
reach or (2) when a parent company has directed the subsidiary's
discriminatory act of which the plaintiff is complaining" or (3)
when the "entities' affairs are so interconnected that they
collectively caused the alleged discriminatory practice."
Nesbit, 347 F.3d at 85-86.
Since there is no evidence that ATI and TMP split themselves
into two entities to avoid liability under federal discrimination
laws, we need not dwell on the first test. As to the second test,
the Court reasoned that by directing a subsidiary to perform the
allegedly discriminatory act, the parent has forfeited its right
to be treated as a separate entity and has, in actuality,
committed the act itself, thereby opening itself to liability.
Nesbit, 347 F.3d at 86. Plaintiff identifies only two ATI employees, both associated with ATI's legal department,
as having had any involvement in his termination. None of his
evidence, however, implies that either Mr. Spolar or Ms.
McAndrews did any more than provide legal advice to TMP managers
and write letters to his attorney on their behalf. Thus, the
second test fails to show that anyone at ATI "directed" TMP's
actions with regard to Mr. Whelan and therefore should be held
liable for those actions.
With regard to "substantive consolidation," the third test, the
Court acknowledged that it is difficult to achieve. Nesbit,
347 F.3d at 86. While one significant issue is "financial
entanglement," in the context of an employment discrimination
the focus . . . rests on the degree of operational
entanglement whether operations of the companies
are so united that nominal employees of one company
are treated interchangeably with those of another.
Relevant operational factors include (1) the degree
of unity between the entities with respect to
ownership, management (both directors and officers),
and business functions (e.g., hiring and personnel
matters), (2) whether they present themselves as a
single company such that third parties dealt with
them as one unit, (3) whether a parent company covers
the salaries, expenses, or losses of its subsidiary,
and (4) whether one entity does business exclusively
with the other.
Nesbit, 347 F.3d at 87.
In applying the third test to the facts of Nesbit's claim of
gender discrimination, the Court concluded that although the
principal of one entity fired the plaintiff who worked for the other, this fact alone did not mean that they were substantively
consolidated. Id. at 88. Nor was such consolidation achieved by
the fact that the two companies coordinated their hiring
practices and jointly advertised for positions. However, with
regard to employment functions, the Court stated the following
caveat: "Our outcome might be different if Gear [plaintiff's
employer] had no say in hiring its own employees, if Gear and
Winters [the associated company] held themselves out to job
applicants as a single company, if the two companies' human
resources functions were entirely integrated, and/or if they did
not maintain separate payrolls and finances." Id. at 89.
The only integrated functions apparent from Plaintiff's
evidence are the consolidated legal department and the fact that
his pension benefits allegedly come from and are administered by
the parent's benefit center. A closer review of his evidence on
the latter point, however, shows that the name of the plan
explicitly refers to "Teledyne Retirement Plan for Teledyne
Advanced Materials Employees" and that it is administered by an
independent bank. (See Defs.' Recon. Brief, Exhs. 13 and 14.)
As the Court stated in Nesbit, without "more significant
operational entanglement, common ownership and de minimis
coordination" are insufficient reasons on which to assign
liability. Nesbit, 347 F.3d at 89. Likewise, I conclude that
for purposes of determining which entity was responsible for the allegedly discriminatory treatment of Mr. Whelan, ATI and TMP are
separate corporations and there is no evidence to support the
conclusion that ATI should be held liable in this case.
Defendants' motion for summary judgment is therefore granted
insofar as the motion seeks to dismiss Allegheny Teledyne, Inc.
as a defendant in this case.
3. Disparate Treatment Claim: In their Brief in Support of
the Motion for Reconsideration, Defendants note, almost as a
postscript, that to the extent Mr. Whelan's Complaint could be
construed to make out a claim of disparate treatment under the
ADA, that claim was explicitly disavowed by Plaintiff's counsel
at the March 12, 2004 hearing. In response to a question by the
Court, counsel stated, "I have not claimed that he was treated
differently than [sic] other employees. . . . I'm not claiming
disparate treatment. That's a different cause of action and legal
theory. . . . I have claims, none of them are disparate
treatment. . . . That's not what this case is about and I don't
have to establish disparate treatment to establish disability
discrimination." (Defs.' Recon. Brief at 23; see also,
Transcript of March 12, 2004 Hearing, Docket No. 50, at 33-35.)
In his brief opposing Defendants' motion, Plaintiff's counsel
reversed himself on these statements, claiming that "Plaintiff's
unlawful discharge cause of action is a disparate treatment
claim," and that he "at no time . . . and in no way whatsoever `disavowed' . . . any disparate treatment claim. All
three cause of action plead [sic] in Plaintiff's Complaint . .
were set forth clear [sic] and unambiguously." (Plf.'s Opp. to
Mot. Recon. at 11-12.)
Defendants further assert that Plaintiff failed to establish a
disparate treatment claim because "he has not offered one iota of
evidence [that] others without disability were not terminated
when asked to transfer," presumably implying that those
individuals, like Plaintiff, also refused to relocate.
(Defendants' Reply to Plaintiff's Brief in Opposition to the
Motion for Reconsideration, Docket No. 125, "Defs.' Reply," at
18.) That is not, however, the test applicable to the ADA. To
establish a prima facie case of disparate treatment under the
ADA, a plaintiff must show: (1) he is a disabled person within
the meaning of the ADA; (2) he is otherwise qualified to perform
the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) he has suffered an
adverse employment decision as a result of discrimination.
Shaner v. Synthes USA, 204 F.3d 494, 500 (3d Cir. 2000)
(internal citations omitted.) This is a somewhat different test
from that used under Title VII and other anti-discrimination
statutes where the plaintiff establishes a prima facie case by
showing that: (1) he was a member of the protected class, (2) he
was qualified for the position he held or sought, and (3)
nonmembers of the protected class were treated more favorably. Goosby v. Johnson &
Johnson Medical, Inc., 228 F.3d 313, 318-9 (3d Cir. 2000).
Termination is without a question a recognized adverse
employment decision. The Court of Appeals has recently held that
in the context of the ADA, "adverse employment decisions . . .
include refusing to make reasonable accommodations for a
plaintiff's disabilities." Williams, 380 F.3d at 761.
"Reasonable accommodation" in turn includes the employer's
reasonable efforts to participate in the interactive process.
Id. Thus, under the ADA, Plaintiff's three causes of action may
be considered disparate treatment without comparison to the
treatment given to other, non-disabled employees.
The Court will not attempt to construe what Plaintiff's counsel
was thinking when he "disavowed" the disparate treatment claims
at the March 12, 2004 hearing, but will allow Plaintiff's ADA
claims to be considered in their own right whether they are
characterized as disparate treatment or simply as disability
C. Summary Judgment Issues
We turn, at long last, to the explicit issues on which the
parties seek summary judgment and conclude that each of them
involves at least one question of fact for the jury, therefore
making summary judgment inappropriate.
1. Failure to Participate in the Interactive Process: Each party claims that the other failed to participate
in the ADA interactive process in good faith. A plaintiff
alleging that his employer did not participate in the interactive
process must show that (1) the employer knew about his
disability; (2) he requested accommodations or assistance for his
disability; (3) the employer did not make a good faith effort to
assist the plaintiff in identifying accommodations; and 4) the
employee could have been reasonably accommodated but for the
employer's lack of good faith. Taylor, 184 F.3d at 319-320,
citing Mengine, 114 F.3d at 420. "Because employers have a
duty to help the disabled employee devise accommodations, an
employer who acts in bad faith in the interactive process will be
liable if the jury can reasonably conclude that the employee
would have been able to perform the job with accommodations."
Taylor, 184 F.3d at 317-318. Contrary to Plaintiff's inferences
throughout his pleadings that the duty of acting in good faith
falls only on the employer, Mengine makes it clear that "both
parties have a duty to assist in the search for an appropriate
reasonable accommodation and to act in good faith." Id.
114 F.3d at 420.*fn16 Where there is a genuine dispute as to whether an employer or
employee engaged in the process in good faith, granting summary
judgment is inappropriate. Taylor, 184 F.3d at 319. The Court
finds little purpose in summarizing the extensive lists of
actions each party claims the other did or did not take that
negatively affected the interactive process between March 25,
1999, and May 4, 2000. (See Defs.' Sum. Judg. Brief at 22-30;
Defs.' Reply at 5-12; Defs.' Recon. Brief at 9-13; and Plf.'s
Opp. to Mot. Recon. at 5-10.) We follow the example of Judge
DuBois in Swierkowski v. CONRAIL, 168 F. Supp.2d 389, 398 (E.D.
Pa. 2001) who denied summary judgment in a similar case, stating,
"Suffice it to say, that, considering all of the evidence on this
issue, the parties have raised genuine issues of material fact."
2. Failure to Accommodate: We also decline to grant summary
judgment to either party on Count I of the Complaint, i.e., that
Defendants failed to accommodate Mr. Whelan's disability.
Although on one hand, the employer has a duty to respond once the
employee has sought an accommodation, the employee has an equal
duty to show that a reasonable accommodation exists or could be
devised. As the Court pointed out in Mengine, "where a
plaintiff cannot demonstrate `reasonable accommodation,' the
employer's lack of investigation into reasonable accommodation is
unimportant." Mengine, 114 F.3d at 430, quoting Willis v.
Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997).
Mr. Whelan proposed a single accommodation: that he be allowed
to continue working from his home in Pittsburgh. He claims this
accommodation was reasonable because it had been working
successfully for more than four years and was neither clearly
ineffective nor outlandishly costly. (Plf.'s Opp. to Sum. Judg.
at 3-4.) However, as Defendants argue, he fails to take into
account that during that period, the TMP facilities were spread
throughout Ontario, Connecticut, and Alabama. The 1998
consolidation closed those facilities and moved all non-sales TMP
employees to Grant. What may have been a reasonable accommodation
when the division was dispersed over a great geographic area may
not have been reasonable when everyone except Mr. Whelan was
concentrated in a single location. (Defendants' Brief in
Opposition to Plaintiff's Motion for Summary Judgment, Docket No.
44, at 2-9.)
"In determining whether an accommodation is reasonable, the
employer must consider the following: (1) the particular job
involved, its purpose, and its essential functions; (2) the
employee's limitations and how those limitations can be overcome;
(3) the effectiveness an accommodation would have in enabling the
individual to perform the job; and (4) the preference of the
employee." Norman v. Univ. of Pittsburgh, CA No. 00-1655,
2002 U.S. Dist. LEXIS 27694, *43-*44 (W.D. Pa. Sept. 17, 2002),
citing 29 C.F.R. § 1630.9(a). An employer is not obligated to provide an
employee with the accommodation he requests or prefers.
Hinnershitz v. Ortep of Pennsylvania, CA 97-7148, 1998 U.S.
Dist. LEXIS 20264, * 14 (E.D. Pa. Dec. 22, 1998), citing Aka
v. Washington Hospital Center, 156 F.3d 1284, 1305 (D.C. Cir.
The Circuits are divided on the question of whether working at
home is a reasonable accommodation. Compare Vande Zande v.
Wisconsin Dep't of Admin., 44 F.3d 538, 544-45 (7th Cir.
1995) (barring "extraordinary circumstances," an employer is not
required to allow disabled employees to work at home without
supervision); Tyndall v. National Educ. Ctrs., Inc.,
31 F.3d 209, 213 (4th Cir. 1994) (except in the unusual case where an
employee can effectively perform all work-related duties at home,
an employee who does not come to work cannot perform any of his
job functions, essential or otherwise); and Kvorjak v. Maine,
259 F.3d 48, 54-58 (1st Cir. 2001) (where the essential functions
of a particular job could not be performed effectively from the
employee's home, summary judgment was affirmed), with Humphrey
v. Memorial Hosps. Ass'n, 239 F.3d 1128, 1138, n. 16 (9th
Cir. 2001) ("working at home is a reasonable accommodation when
the essential functions of the position can be performed at home
and a work-at-home arrangement would not cause undue hardship for
the employer"); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994)
("in appropriate cases," an agency is required to consider a
request to work at home as a potential form of accommodation).
While the Third Circuit has not spoken on the specific issue of
whether working at home is a reasonable accommodation, its
overarching position is that "the question of whether a proposed
accommodation is reasonable is a question of fact." Williams,
380 F.3d at 771, citing Buskirk v. Apollo Metals,
307 F.3d 160, 170 (3d Cir. 2002), and Skerski v. Time Warner Cable,
257 F.3d 273, 286 (3d Cir. 2001). However, at least one district
court has followed Vande Zande, commenting that "the majority
view is that at-home accommodation is not required by the ADA."
Dicino v. Aetna U.S. Healthcare, CA No. 01-3206 (JBS),
2003 U.S. Dist. LEXIS 26487, *51 (D.N.J. June 23, 2003). Similarly, in
Stanley v. Lester M. Prange, Inc., 25 F. Supp.2d 581, 584 (E.D.
Pa. 1998), the court concluded that while "it would take an
extraordinary case for the employee to be able to create a
triable issue of the employer's failure to allow the employee to
work at home," under the facts presented at summary judgment, it
could not say, as matter of law, that the request would be an
Given the facts of this case, the Court is similarly unable to
say that Mr. Whelan's requested accommodation was or was not
reasonable. Summary judgment is therefore denied on the failure
to accommodate claim.
3. Termination Due to Disability: Plaintiff frames this issue as a claim "that he was unlawfully fired when the
Defendants required him to transfer to Alabama, proposed no
accommodations with the transfer, and then fired him for not
accepting the transfer." (Plaintiff's Brief in Support of Motion
for Summary Judgment, Docket No. 35, at 5-6.) He further argues
that the Defendants "still don't understand the point: the
Plaintiff could not (1) confirm whether he could or could not
accept the transfer (2) nor ascertain whether he could perform
the essential job functions of the position in Alabama unless and
until the Defendants proposed accommodations with the transfer
for his consideration." (Plf.'s Opp. to Sum. Judg. at 1-2.)
Defendants, on the other hand, assert that during the period
March 25, 1999, through April 14, 2000, Mr. Whelan never once
indicated that he was willing to transfer to Alabama and never
asked for any accommodation other than being allowed to remain in
Pittsburgh. (Defs.' Reply at 14-16.) Moreover, they argue, the
proposed accommodation was nothing more than an attempt to
preserve his previous working conditions, the transfer to Alabama
was not an adverse employment decision, the decision to transfer
him was not made because of his disability, and Plaintiff cannot
establish that the ultimate reason given for his termination
his refusal to transfer to Alabama is pretextual. (Defs.' Sum.
Judg. Brief at 10-12, 31-32, and 38-39.)
ADA discrimination claims are analyzed pursuant to the familiar burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) and its progeny, Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248 (1981), and St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-507 (1993).
Shaner, 204 F.3d at 501. This three-step process first requires
the plaintiff to establish by the preponderance of the evidence a
prima facie case of discrimination. As noted above, one element
of a prima facie case of discrimination under the ADA is that
the employee suffered an adverse employment decision as a result
of his disability. Shaner, id. at 500; Gaul v. Lucent
Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998).
The genuine issue of material fact here that precludes granting
summary judgment in favor of either party is whether Mr. Whelan's
employment was terminated "as a result of" discrimination. The
ultimate answer to that question will depend on the jury's
factual findings regarding the claims that Defendants failed to
participate in the interactive process in good faith or failed to
grant him a reasonable accommodation. For example, should the
jury find that Defendants demonstrated lack of good faith by
failing to seriously consider Mr. Whelan's request that he be
allowed to continue to work in Pittsburgh, it could logically
also find that TMP refused to agree to this accommodation simply
to get rid of a disabled employee. Consequently, terminating his
employment was the result of its discriminatory action of failing to participate in the
interactive process. On the other hand, if the jury concludes
that Mr. Whelan's proposed accommodation was unreasonable and/or
an undue hardship for his employer, it could logically find that
the decision to terminate him was based only on his refusal to
transfer and thus not discriminatory if other employees who
declined to relocate were also terminated.
Summary judgment is therefore denied as to Count III of the
An appropriate Order follows.
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