The opinion of the court was delivered by: Simandle, District Judge:
HONORABLE JEROME B. SIMANDLE
Plaintiff, Charles Christ, a union painter, brings this action against defendant, Public Service Electric and Gas Company ("PSE&G"), alleging unlawful discrimination in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. 12101, et seq. Plaintiff alleges that defendant interfered with his employment relationship with a third party employer, Williams Power Company ("Williams"), not a party to this suit, when defendant denied plaintiff the unrestricted access that plaintiff needed to do painting work at defendant's nuclear generating station in New Jersey. Now before this Court is defendant's motion to dismiss, which this Court shall treat as a motion for summary judgment to the extent that both parties attached documents to their briefs. Defendant argues that it is entitled to summary judgment because the ADA had not been enacted yet at the time of the wrong, for failure to file within the applicable statute of limitations, because the ADA does not apply to one who is not the plaintiff's employer, and because plaintiff cannot establish evidence for the elements of discrimination. As explained herein, defendant's motion will be granted because the defendant's denial of access to plaintiff was not discriminatory when it occurred or, alternatively, because defendant failed to file his EEOC charge within 300 days of the alleged discriminatory act.
In 1987, plaintiff was employed by Williams as a union painter who received his jobs through his union hall. (Compl. ¶ 1.) Defendant utilized Williams' painters, determining which of Williams' and other contractors' employees would be granted unrestricted access to its nuclear power plant for the purpose of completing painting contracts for which it engaged Williams and other contractors. (Id. at ¶ 2.) In 1987, at a time when plaintiff already had unrestricted access to the plant site and was working there, he failed a drug screen test for marijuana during a periodic physical, and his access was revoked. (Id. at ¶ 6.)
Plaintiff completed a course of rehabilitation at the Maryville Alcohol Rehabilitation Center ("Maryville"), which he had entered of his own volition, on April 30, 1991. (Id. at ¶ 5.) He has been active in Alcoholics Anonymous ("AA"), and, according to plaintiff, has remained drug and alcohol free since completing the course at Maryville. (Id.)
In 1992, plaintiff again applied for unrestricted access to defendant's nuclear plant site. (Id. at ¶ 6.) In June of 1992, defendant's employee Dennis Ahr told plaintiff that he wanted to see proof of plaintiff's completed treatment, and plaintiff had Maryville forward verification of the completion of the program as well as a full copy of plaintiff's file; he additionally provided letters attesting to his sobriety and active participation in AA. (Id. at ¶ 7.) At that time, Mr. Ahr told plaintiff that he would not be granted access to Defendant's site due to his history of abuse of alcohol and drugs. (Id. at ¶ 9.) According to plaintiff, Mr. Ahr also told him that "he hoped the bad news didn't cause Plaintiff to stop for a drink on the way home." (Id.)
On July 26, 1992, a month after Mr. Ahr told plaintiff why he would not be granted access, the ADA became effective. In October of 1992, plaintiff requested review of his denial (id.), though there is no allegation or evidence that plaintiff asked for the reconsideration because of the change in law. Defendant sent plaintiff a letter dated October 19, 1992, in which defendant stated:
As you know, your request for reconsideration of access denial was not approved today, by Dr. McCarthy and myself. That disapproval is based, as was also discussed with you in June 1992, on your extensive substance abuse history, notwithstanding your efforts at rehabilitation since 1991. We recognize your reported success since that time, and sincerely hope you continue in those efforts.
As I discussed with both Dr. McCarthy and Dr. Ronald Mack, Medical Review Officer, we consider you eligible for reconsideration for access one year from your original denial in June 1992. After June 1993, we would be interested in your ability to document continued sobriety and participation in self-help programs, as you have done to date. Please be advised, however, that reconsideration involves a full re-evaluation and does not guarantee a positive decision on unescorted access. (Pl.'s Br. Ex. A.)
Plaintiff waited until August 30, 1994 to telephone defendant to seek that reconsideration of the denial of unrestricted access. (Compl. ¶ 10.) On September 1, 1994, defendant denied that reconsideration, stating that "[y]our history has been reviewed by the Psychological Services of PSE&G's Medical Department-Nuclear, a decision has been made to not re-consider you for access at this time. This decision is based on your documented history of substance abuse and previous denial for violation of our Fitness-for-Duty policy." (Pl.'s Br. Ex. B.)
Thirty-six days later, on October 7, 1994, plaintiff filed a charge against defendant with the New Jersey Division of Civil Rights and the United States Equal Employment Opportunity Commission ("EEOC"), alleging that defendant discriminated against him by failing to hire him on September 1, 1994 because of his history of polysubstance abuse. (Pomerantz Certif. Ex. A.) The EEOC found that the defendant had violated the ADA by denying plaintiff access in September of 1994 purely because of his past history with polysubstance abuse, thus interfering with plaintiff's relationship with his employer, Williams, and the EEOC issued a "Right to Sue" letter on May 7, 1998. (Id. Exs. B, C, & D.)
Plaintiff filed suit against defendant in this Court on August 5, 1998, alleging that defendant violated the ADA's prohibition on discrimination against recovering persons disabled because of drug or alcohol addiction who no longer use illegal drugs or alcohol, thus causing plaintiff to lose painting jobs and the opportunity to collect Union Pension Credits. (Compl. ¶¶ 17-18.)
Defendant filed its answer and affirmative defenses on September 16, 1998, and, on February 1, 1999, defendant filed a motion to dismiss. In its motion, defendant argues that the alleged discriminatory action took place before the ADA was enacted; that, in any case, the EEOC Complaint was filed in an untimely manner; that the ADA does not apply to this situation because Williams, and not defendant, was plaintiff's employer; and that plaintiff has not alleged the elements of discrimination because he did not allege that he could perform the essential attributes necessary for unescorted access. Defendant attached various documents to its motion, and plaintiff, likewise, ...