opposing summary judgment "may not create an
issue of fact by submitting an affidavit in opposition to a summary
judgment motion that, by omission or addition, contradicts the affiant's
previous deposition testimony." Hayes v. New York City, Department of
Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Defendant's position is that because plaintiff did not file his
complaint with EEOC until November 18, 2000, he is limited to alleged
discrimination that took place up to 300 days prior to the filing date,
which would be January 23, 2000. He argues if any discrimination took
place, it happened on July 12, 1999 (the date Ms. Erb placed him on
worker's compensation), thus plaintiff's claim is barred as untimely.
Plaintiff responds that his claim is timely, because he was actively
seeking an accommodation until April 13, 2001, and, as an alternative
position, defendant's discriminatory act was continuous in nature. See
Plaintiff's Memorandum of Law at 4. Defendant thoroughly addresses the
allegation of whether its conduct constituted a continuing violation, but
devotes little space to plaintiff's first argument, that the actual date
of the last discriminatory act was April 13, 1999, the day defendant
informed him, by letter, that it would not accommodate his medical
restrictions. Defendant's position is that its last act of placing
plaintiff on worker's compensation on July 12, 1999, was when his cause of
action under the ADA accrued. Thus, the question becomes on what date did
plaintiff's cause of action under the ADA accrue?
Generally speaking, the time period for filing a complaint of
discrimination begins to run when the facts that would support a charge
of discrimination would have been apparent to a similarly situated person
with a reasonably prudent regard for his rights. Bickham v. Miller,
584 F.2d 736, 738 (5th Cir. 1978). Knowles v. Postmaster General, U.S.
Postal Service, 656 F. Supp. 593, 599 (D.Conn. 1987). The Second Circuit
addressed this question of accrual in an ADA case involving a summary
judgment motion. See Smith v. United Parcel Service of America, Inc.,
65 F.3d 266 (2d Cir. 1995). In Smith, the court held that the limitation
period for the ADA "begins to run `on the date when the employee receives
a definite notice of the termination.'" Smith, 65 F.3d at 268 (quoting
Economy v. Borg-Warner Corp., 829 F.2d 311, 315 (2d Cir. 1987) (quoting
Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 23
(2d. Cir. 1985)) (other citation omitted). The court further held that,
"for the notice to be effective, it must be made apparent to the employee
that the notice states the `official position' of the employer." Id.
After being involuntarily placed on worker's compensation on July 12,
1999, plaintiff sought legal representation and through his counsel,
attempted to obtain the same accommodation he had previously enjoyed in
defendant's employment. Defendant acceded to his request to the point of
asking the union to agree to an exception to the contract. See Complaint
at ¶ 29; see also Conrow aff. at ¶ 15. Plaintiff's counsel's
paralegal, on February 24, 2000, sent a follow-up letter to defendant. See
Conrow aff. at Exhibit G. Defendant's response, on March 2, 2000, was
that defendant was waiting for a response from the union. See Conrow
aff. at Exhibit H. It was not until April 13, 2000, when the union
refused to consent to the accommodation request, that defendant finally
and unequivocally terminated plaintiff. See Conrow aff. at Exhibit B;
McMullen aff. at ¶¶ 12-13.
Viewing the evidence in the light most favorable to plaintiff and
drawing all reasonable
inferences in plaintiff's favor, the Court
concludes that the Complaint adequately alleges a termination date of
April 13, 2000, which makes his complaint to EEOC timely and, thus, this
suit timely as well. Therefore, the Court need not address the parties'
arguments concerning whether the violation alleged here was of a
continuing nature. Since the Court has not dismissed the complaint,
defendant's motion under FED. R. CIV. P. 12(b)(1), that the state cause
of action be dismissed for lack of supplemental jurisdiction, is moot.
Based on the foregoing, it is hereby ordered that defendant's motion to
dismiss, having been converted to a motion for summary judgment pursuant
to FED. R. CIV. P. 12(c) and 56, is hereby denied.
IT IS SO ORDERED.
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