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Christ v. Public Service Electric and Gas Co.


July 8, 1999


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



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plant site and was working there, he failed a drug screen test for marijuana during a periodic physical, and his access was revoked.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, attached the two letters from defendant to his opposition brief. In order to consider those documents, this Court converts the motion to dismiss to one for summary judgment.

All of the facts as stated in the background section, unless otherwise noted, are either undisputed or supported by admissible evidence. There is no dispute of fact regarding the chronology and content of the plaintiff's applications and defendant's denials of restored access. As the following discussion will explain, this Court agrees with defendant that the action alleged to be discriminatory took place before the effective date of the ADA and thus the ADA does not apply. Alternatively, even if the ADA applied to this alleged violation at the time of the October 1992 reapplication and denial, the ADA's statute of limitations expired 300 days thereafter and the Complaint was time- barred.


A. Summary Judgment Standard

Summary judgment is appropriate when the materials of record "show 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); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Products, 82 F.3d 1283, 1288 (3d Cir. 1996). The threshold inquiry is whether 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." Liberty Lobby, 477 U.S. at 250.

B. Analysis

Defendant does not dispute the factual allegations of plaintiff's Complaint, agreeing that it revoked plaintiff's unrestricted access in 1987, denied plaintiff's new application for access in June of 1992 based on plaintiff's history of polysubstance abuse, denied reconsideration of that decision in October of 1992, and again denied reconsideration in September of 1994. Nor does defendant dispute that it told plaintiff that its decisions in October of 1992 and September of 1994 were based on the very same reason given in June of 1992, namely plaintiff's history of polysubstance abuse.

Moreover, certain aspects of the law applicable to this case are clear and undisputed. For example, it is undisputed that if the alleged discriminatory action against plaintiff occurred in June of 1992, prior to the effective date of the ADA, defendant cannot be held liable at all, for the ADA cannot be applied retroactively before its effective date of July 26, 1992. See 42 U.S.C. § 12111. See also Clarke v. Whitney, 934 F. Supp. 148, 150 (E.D. Pa. 1996); Bishop v. Okidata, Inc., 864 F. Supp. 416, 420 (D.N.J. 1994). It is also undisputed that a New Jersey plaintiff in an ADA case must first file a complaint with the EEOC or the New Jersey Department of Civil Rights within 300 days of an alleged discriminatory action. EEOC v. Commercial Office Products Co., 486 U.S. 107, 125 (1988) (when state agency and EEOC have worksharing agreement [like New Jersey does], plaintiff has 300 days to file instead of 180); Bishop, 864 F. Supp. at 424 (follow same time line for filing ADA claims as with Title VII). Thus, while plaintiff filed well within 300 days from the September 1994 denial of reconsideration, he did not file within 300 days of either the June 1992 or October 1992 denials, and if either of the latter constituted an act of discrimination, plaintiff's case would be barred by the statute of limitations unless equitable tolling applies. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

The parties do dispute, however, whether each of defendant's denials of the plaintiff's request for access are separate acts or if they, rather, constitute only one discriminatory act. Defendant argues that plaintiff cannot hold it liable because plaintiff has truly only alleged one discriminatory act--the denial of unrestricted access in June of 1992-- and that action took place before the ADA was enacted and thus cannot constitute an ADA violation. Plaintiff argues, on the other hand, that each of the denials of access constituted a separate action, and thus, that while plaintiff has no claim regarding the June of 1992 denial, he has a valid claim for violation of the ADA based on either of the later, continuing violations in October 1992 and September 1994.

Though it does not appear that the Third Circuit has spoken directly on this issue, the weight of authority from other courts indicates that defendant is correct. Absent some new evidence of discrimination, an employer's later failure to reconsider an earlier allegedly discriminatory decision is nothing more than an effect of the earlier determination, and the cause of action arises, if at all, from that earlier act of alleged discrimination.

The Eleventh Circuit addressed this in Burnham v. Amoco Container Co., 755 F.2d 893, 894-895 (11th Cir. 1985), holding that an employer's failure to rehire someone after firing that person for allegedly discriminatory reasons does not "resurrect the old discriminatory act." Id. In that case, plaintiff filed the necessary complaint with the EEOC within 180 days *fn2 of learning that she had not been rehired, though it was over 180 days since the original termination. Id. at 894.

Essentially, the Eleventh Circuit found that absent "a new and discrete act of discrimination in the refusal to rehire itself," the later decision requesting reinstatement was nothing more than an effect of the original discrimination. Id. at 894-895. Because the plaintiff had not filed with the EEOC within 180 days of the only discriminatory act, in that case the termination, the case was dismissed. Id. at 895. If it were otherwise, the Eleventh Circuit said, "a potential plaintiff could always circumvent the limitations by reapplying for employment," receiving a second denial, and filing a claim arising from the latter repeated denial of the reapplication. Id. at 894.

Other courts, agreeing that allowing a plaintiff to circumvent the statute of limitations by seeking reconsideration of employment decisions would eviscerate the very point of the statute of limitations, have agreed with the Eleventh Circuit's decision. In Dugan v. Ball State University, 815 F.2d 1132, 1134 (7th Cir. 1987), the Seventh Circuit noted that a limitations period runs "from when an employee is notified of an adverse employment decision," not from the dates upon which subsequent adverse effects occur, citing Delaware State College v. Ricks, 449 U.S. 250 (1980). The Court further noted that "the fact that an employee continues to argue an employment decision does not make the decision any less final...." 815 F.2d at 1135.

The Western District of Virginia decided a case very similar to the one before this Court. In White v. Stackhouse, Inc., 910 F. Supp. 269 (W.D. Va. 1995), the plaintiff stopped working for defendant due to a back injury, and several months later, in December of 1990, he indicated to his former employer that he was ready to return to work. Id. at 270. The defendant told the plaintiff that he would not be rehired because he was too big a risk. Id. A year later, he again asked to be rehired and was told again that he was too big a risk. Id. at 271. Three days after the ADA became effective, the plaintiff wrote to the defendant, noting that now the defendant would have to rehire him. Id. He thereafter applied to be rehired, but defendant never rehired him. Id.

The Western District of Virginia found that plaintiff's claim was time- barred because, though plaintiff filed a complaint with the EEOC within the applicable statute of limitations for the defendant's final refusal to rehire him, plaintiff had not filed a complaint within the EEOC within the applicable statute of limitations for the original refusal to rehire him. Id. The plaintiff in White, much like plaintiff Christ in the instant case, argued that the denials constituted a "serial continuing violation and that the earliest refusal to rehire does not trigger the statute of limitations in light of the [later] refusal to rehire." Id. at 271. The Western District of Virginia did not agree, finding that the later decisions to not rehire were not separate discriminatory acts that constituted continuing violations, but rather were simply continuing effects of one alleged act of discrimination, and that action was time-barred. Id. The Court noted that the limitations period runs "from the point of the discriminatory act and not from the later continuing effects," id. at 272, and found that the later decisions to not rehire the plaintiff were nothing more than continuing effects of defendant's first decision to not rehire the plaintiff, id., analogizing to the termination/refusal-to-rehire case law. Id. at 273. Because this initial decision, which was the only true discriminatory act alleged, was made before the ADA was effective, the alleged discrimination was both time-barred and otherwise did not state a claim.

Additional support for this view is provided by the Third Circuit's approach in a similar case involving time limits for filing unfair labor practice charges under the National Labor Relations Act ("NLRA"), 29 U.S.C.A. § 141, et seq. See National Labor Relations Board v. Textile Machine Works, Inc., 214 F.2d 929 (3d Cir. 1954). In Textile Machine Works, the defendant discharged 200 former employees who had been on strike. Id. at 931. At various times, many of the former employees asked for reemployment, but none were rehired. Id. More than a year after the strike ended, an unfair labor practice charge was filed with the NLRB, and that charge was consolidated with other, later charges to become the basis of one NLRB complaint. Id. Section 10(b) of the NLRA, requires that such charges be filed within six months of the unfair labor practice. Id. at 932. Noting that any claims based on the discharge itself would be time-barred, the Third Circuit explained that it was crucial to determine if the plaintiffs were alleging that defendant failed to reinstate them or that defendant discriminatorily refused to hire them. Id. Thus, the Third Circuit stated:

In Pennwoven, this court distinguished between an application for reinstatement by a discharged employee and an application for new employment. . . . A discharged employee who seeks to be reinstated is really litigating the unfairness of his original discharge because only if the original discharge was discriminatory is he entitled to be reinstated as if he had never ceased working for the employer. The word reinstatement must be employed in this connection as the equivalent of uninterrupted employment. In this sense, the employee is restored to all of the rights and privileges which were his before he was discharged, plus any new rights and privileges which would have accrued to him in the meantime. . . . The concept of discriminatory refusal to hire is a different concept. If a person -- whether a former employee or not -- applies for employment and discriminatorily is refused employment on account of prior union activity, the employer has committed a separate and distinct unfair labor practice. Id.

Defendant argues that all of the denials of access were merely effects of the revocation of access in 1987 when plaintiff was abusing drugs and alcohol. The Court disagrees, for the June 1992 denial of access was a new decision, a new application for access, years later, based on plaintiff's claim of sobriety following a history of drug and alcohol abuse. Plaintiff at that time was requesting anew that he be given access to the plant, not that they reconsider their earlier decision and give him backpay for the four years in which he was in rehabilitation. However, the Court agrees with defendant that both the October of 1992 and September of 1994 denials of access were nothing more than continuing effects of the June of 1992 denial.

Applying this law to the undisputed or otherwise evidentiarily supported facts of the case before this Court, it appears that the plaintiff has only really alleged one act of discrimination--the June 1992 decision to deny plaintiff renewed access to the nuclear power site based on his history of polysubstance abuse. *fn3 In both October 1992 and September 1994, plaintiff merely asked for reconsideration of the earlier decision to not grant him access based on his history of drug and alcohol abuse. Neither was a new application for access or a job; in October 1992, he asked for review of the June decision, and in September 1994, two years later, he called and informally asked his chances of getting access. In both cases, the defendant simply stated that it was relying on its June 1992 decision. Thus, the two later denials were nothing more than continuing effects of the June 1992 act.

The plaintiff argues that his situation is distinguishable because, as he would seek to prove after discovery, the access review process is a fluid one which allows for reconsideration on a regular basis. That, however, is irrelevant, for if a discriminatory action has taken place, an employee's cause of action accrues immediately, even if the employer later has the opportunity to reverse the effects of the earlier discrimination. As the Western District of Virginia stated in White, "if [plaintiff] could re-trigger the statute of limitations upon each job application, then he would be able to delay the running of the statute of limitations ad infinitum," and that would eviscerate the very purpose of the statute of limitations in the first place. 910 F. Supp. at 274.

What defendant decided in June of 1992 was not discriminatory at the time. Given that the ADA does not have retroactive application, see Bishop, supra, 864 F. Supp. at 420, the plaintiff has not stated a cause of action. For that reason, defendant's motion will be granted.

Alternatively, the result is unchanged if the defendant's decision in October 1992 is regarded as the first post-ADA act of discrimination. If so, the claim was actionable and the statute of limitations expired 300 days later when no claim was filed. *fn4 The September 1994 determination responding to Mr. Christ's inquiry was a repetition of the previous October 1992 determination in which plaintiff has presented no new reason for gaining access. The statute of limitations, having expired in 1993, cannot be revived by reapplication.


For the foregoing reason, defendant's motion to dismiss to dismiss, which this Court treats as a motion for summary judgment, shall be granted. Defendant's decision to not grant the plaintiff access so that his employer could assign him to one particular job site, PSE&G's nuclear plant, occurred in June of 1992, before the ADA was effective. That the defendant also denied reconsideration of that decision in October of 1992 and September of 1994 does not change plaintiff's claim, for those denials are merely continuing effects of the June 1992 decision. Alternatively, assuming the ADA is applicable to the October 1992 refusal to reconsider, the ADA's statute of limitations expired in 1993. Therefore, plaintiff's claim must be dismissed.

The accompanying Order is entered.

JEROME B. SIMANDLE U.S. District Judge


This matter having come before the Court upon defendant's motion to dismiss; and the Court having considered the parties' submissions; and for the reasons expressed in the Opinion of today's date;

IT IS this 8th day of July 1999 hereby ORDERED that defendant's motion to dismiss be, and hereby is, GRANTED.

JUDGMENT to be entered for the defendant.

JEROME B. SIMANDLE U.S. District Judge

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