The opinion of the court was delivered by: CURTIN
In this employment discrimination action brought under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117, (the "ADA"), Jeffrey N. Halas alleges that Ford Motor Company discriminated against him by failing to accommodate his disability and by forcing or tricking him to resign his production position and subsequently refusing to provide him with a salaried position on account of his disability (Item 1; Item 11, Exhibit I).
Defendant has moved to dismiss plaintiff's complaint claiming that plaintiff's claims are time-barred because plaintiff failed to file his charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 300 days of the alleged discriminatory act (Items 6 and 7). Plaintiff, appearing pro se, has moved for appointment of counsel (Items 10 and 16).
Plaintiff was hired by defendant on April 21, 1995, as a part-time employee under a collective bargaining agreement with the United Autoworkers in the classification "Automation Tender - Welding Lines" (Item 1, P 4; Defendant's EEOC response # 1 attached to Item 1). This job classification involved the handling of automotive sheet metal components during production stamping and automated welding operations (Defendant's EEOC response # 1). Plaintiff worked without incident or report of difficulty in performing assigned work until a contractual layoff effective June 12, 1995 (Id.). Defendant rehired plaintiff on August 7, 1995, and on August 11, 1995, plaintiff was afforded and accepted full-time work (Id). On August 22, 1995, plaintiff requested reasonable accommodation from defendant due to his disability. Plaintiff claims that in response to this request, defendant offered him a salaried position and instructed that he had to first resign his hourly position. Plaintiff's last day of employment at Ford Motor Company was August 26, 1995. Plaintiff alleges that defendant subsequently refused to provide him with a salaried position. Plaintiff contends that he was tricked into resigning his hourly job by defendant's promises of a salaried position. Defendant claims that plaintiff voluntarily resigned from his production line position and that it never offered plaintiff a salaried position (Defendant's EEOC response # 3).
Plaintiff asserts that he has a hemangeoma (benign vein tumor) on the palm of his left hand. He claims that he suffered this permanent nerve damage while he was serving in the United States Air Force and that he is currently on the disabled veterans list (Item 11, Exhibit A). He submits that he disclosed his disability to defendant on two separate occasions prior to the days immediately preceding his resignation: on the employment application that he filed with the New York State Department of Labor, and during his prehire physical with defendant's in-house physician (Item 12, Attachment). Defendant contends that during his four-month employment, plaintiff did not identify himself as a disabled person in need of accommodation, nor were there any reports that plaintiff had physical difficulty performing his work (Defendant's EEOC Response # 1; Item 12, p. 4).
Plaintiff completed the questionnaire and hand-delivered it to the EEOC on June 18, 1996. Plaintiff alleges that when he dropped off the form, EEOC personnel explained to him that by turning in the questionnaire on that date, he satisfied the 300-day requirement (Items 12 and 25). On June 20, 1996, the EEOC sent plaintiff a letter acknowledging plaintiff's "charge of employment discrimination" against defendant (Item 21, attachment). The letter instructed plaintiff to sign, date, and return the enclosed Charge of Discrimination, which was drafted from plaintiff's responses on the questionnaire. The EEOC received plaintiff's signed and dated EEOC Charge on June 25, 1996 (Item 11, Exhibit I).
On January 30, 1997, the EEOC dismissed plaintiff's charge because it found that it lacked jurisdiction to investigate plaintiff's allegations claim since it found that plaintiff's allegations did not involve a disability that is covered by the ADA (Item 1, attachment). In its cover letter, the EEOC explained that:
Because you were not an individual under the provisions of the [ADA], [defendant] was neither required nor obligated to provide you with your requested accommodation. In regards to your allegation that you were forced to resign your production position and denied a salaried position, the record shows that you voluntarily terminated your employment.
(Id.). The EEOC dismissal form instructed plaintiff that he had the right to file a lawsuit against defendant under federal law in either federal or state court (Id.).
On February 11, 1997, plaintiff commenced this action. Defendant was served on or about March 17, 1997 (Item 5). On May 7, 1997, defendant brought the pending motion to dismiss for failure to file the EEOC charge within 300 days.
Incidentally, plaintiff presented his claims to the New York State Department of Labor in the context of an unemployment compensation proceeding. On July 18, 1997, the New York State Department of Labor Unemployment Insurance Appeal Board (the "Board") found that the evidence establishes that plaintiff's employment ended because the nature of the production line work aggravated a preexisting disability, and that plaintiff had advised defendant's doctor of his condition (Item 27, attachment). The Board concluded that plaintiff's written statement of August 22, 1995, was an attempt by plaintiff to convey to defendant that he could not perform his job duties due to his disability and to request other duties that ...