Opinion
CIVIL ACTION NO. 99-2858 (JBS)
March 28, 2000
Mr. Fred Doerr, Plaintiff pro se.
Luanne M. Peterpaul, Esquire, Peterpaul, Clark, Corcoran Costello, P.C., for Defendants Easter Seal of New Jersey, Tammy Norris, Allison Recca-Ryan, William Waller and James E. Williams.
Robert K. Neiman, Esquire (Pro Hac Vice), Lori A. Goldstein, Esquire (Pro Hac Vice), Holleb Coff, for Defendants, National Easter Seal Society, Inc. National Easter Seal Society, Inc. James E. Williams.
O P I N I O N
This matter is before the court on defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P., and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P. In the underlying suit, plaintiff Fred Doerr, appearing pro se, alleges that defendants National Easter Seal Society, Inc. ("National"), James E. Williams, Jr. ("Williams"), Easter Seal of New Jersey ("ESNJ"), Tammy Norris ("Norris"), Alison Recca-Ryan "Recca-Ryan") and William Waller engaged in discriminatory conduct in violation of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., when they refused to accredit him as an official foster care program participant.
Defendants National and Williams seek dismissal on the ground that Mr. Doerr did not file an administrative EEOC claim against them, nor did the filed claim make any reference to them nor charge them with actionable conduct, so that Mr. Doerr has failed to exhaust his administrative remedies against them prior to filing suit, contrary to 42 U.S.C. § 2000e-5(e)(1) 12117.
All defendants seek dismissal on the grounds that this action was not timely filed within the 90-day period following Mr. Doerr's receipt of a right to sue letter from the EEOC, as required by the Americans with Disabilities Act, 42 U.S.C. § 2000e-5 (f)(1) 12117, so that this action would be time-barred.
All defendants seek dismissal on the additional ground that Mr. Doerr's complaint fails to state a claim under Title I 'of the Americans with Disabilities Act based on the absence of any prospective or actual employment relationship between Mr. Doerr and these defendants.
For the reasons set forth below, the court will grant the motion of defendants National and Williams to dismiss the complaint against them for failure to have filed an EEOC complaint, and will deny the motion of the remaining defendants to dismiss this case for untimely filing, and will deny the remaining defendants' Rule 12(b)(6) motion regarding lack of employment relationship, without prejudice to the filing of an appropriate motion for summary judgment on this or other issues at the conclusion of discovery.
BACKGROUND
On April 1, 1998, the plaintiff filed a Charge of Discrimination with the EEOC, alleging that ESNJ discriminated against him in violation of 42 U.S.C. § 12101 et seq. when it denied his participation in its Therapeutic Foster Care/Shelter Care Program as a foster parent. Plaintiff claims that defendants ESNJ, Norris, Recca-Ryan and Waller participated in a scheme to deny his application for certification because he is disabled. In response, the EEOC mailed a Dismissal and Notice of Rights on March 10, 1999. (See Def.'s Mot. Ex. B.) The EEOC dismissed the case and notified plaintiff of his right to sue within ninety days of receipt of the notice, citing that "[n]o employer-employee relationship" existed between the charged entity (ESNJ) and the plaintiff.
A copy of this document was attached to an application to proceed in forma pauperis with this Court on June 18, 1999. Holding petitioner's pro se submissions to "less stringent standards than formal pleadings drafted by lawyers," see Estelle v. Gamble , 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner , 404 U.S. 519, 520-21 (1972)), this Court will treat this filing, together with plaintiff's other initial submissions including his contemporaneously filed motion to name National and Williams as additional defendants, collectively as plaintiff's complaint. The court acknowledges this stretches the concept of liberal construction of pro se filings to its limit.
Plaintiff brought suit by filing papers with this Court on June 18, 1999, alleging violation of 42 U.S.C. § 12101 et seq. The plaintiff added defendants National and Williams to those defendants named or mentioned in his grievance with the EEOC. As relief, plaintiff seeks compensatory and punitive damages in excess of $2 million.
The date of filing in this court is deemed to be June 18, 1999, which is the date plaintiff's complaint and request to proceed in forma pauperis were received by the Clerk's Office. When the in forma pauperis application was granted on June 22, 1999, the complaint would be entered on the docket.
Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants support their motion on three grounds. First, National and Williams assert that the plaintiff has failed to exhaust his administrative remedies because he did not file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") naming National and Williams as "charged defendants." (See Def.'s Reply Br. at 1-2.) Second, all defendants assert that the plaintiff did not comply with the ADA requirement that he timely file his complaint within ninety days of his receipt of the right to sue notice from the EEOC as required by 42 U.S.C. § 2000e-5 (f)(1), 12117. (Id. at 2.) Third, all defendants assert that the complaint is deficient because in it plaintiff does not allege, and cannot in good faith allege, that he enjoyed a prospective or actual employment relationship with the defendants. (Id.)
Defendants ESNJ, Norris, Recca-Ryan and Waller join in grounds two and three. Specifically, these defendants assert that the plaintiff has not timely filed his complaint and that he cannot allege a prospective or actual employment relationship between ESNJ, Waller, Norris, Recca-Ryan and himself. (See Def.'s Mot. at 2-3).
DISCUSSION
A. Standard for 12(b)(6) Motions
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the Complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Hakimoglu v. Trump Taj Mahal Assoc., 876 F. Supp. 625, 628-29 (D.N.J. 1994), aff'd, 70 F.3d 291 (3d Cir. 1995). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 (3d Cir. 1994); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991). A court may not dismiss the Complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The question before the court is not whether the plaintiff will ultimately prevail; rather, it is whether he can prove any set of facts in support of their claims that would entitle them to relief. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984). However, while the rules do not dictate that a "claimant set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149-50 n. 3 (1984) (quoting Conley, 355 U.S. at 47).
In considering a motion to dismiss, courts ordinarily consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1178 (1194). However, a court may also consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document. In re Donald J. Trump Casino Securities Lit., 7 F.3d 357, 368 n. 9 (3d Cir. 1993),cert. denied, 510 U.S. 1178 (1994); Pension Benefit Guar. Corp., 998 F.2d at 1196.
B. Exhaustion of Administrative Remedies
Defendants National and Williams first move to dismiss the complaint as against them by asserting that the plaintiff, by failing to name National and Williams in his charge of discrimination with the EEOC, failed to exhaust his administrative remedies as required by the Act. (See Def.'s Reply Br. at 1-2.)
A party alleging discrimination in the workplace under the ADA must follow the same administrative procedures set forth in Title VII, 42 U.S.C. § 2000e-5. See 42 U.S.C. § 12117; Bishop v. Okidata, Inc., 864 F. Supp. 416, 424 (D.N.J. 1994). Although compliance with the filing period requirement is not jurisdictional, see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982), a plaintiff seeking to file a lawsuit should completely exhaust his or her administrative remedies against a particular defendant prior to filing. Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977); Bishop, 864 F. Supp. at 424.
As a general rule, a party who is not named in an EEOC charge cannot be sued in a Title VII or ADA action. See Ditzel v. University of Medicine Dentistry of New Jersey, 962 F. Supp. 595, 602 (D.N.J. 1997). See also Perkins v. Silverstein, 939 F.2d 463, 471 (7th Cir. 1991); Secrest v. Burns. Intern. Sec. Servs., 926 F. Supp. 823, 825 (E.D. Wisc. 1996); Lane v. David P. Jacobson Co., Ltd., 880 F. Supp. 1091 (E.D.Va. 1995);Dreisbach v. Cummins Diesel Engines, Inc., 848 F. Supp. 593, 595-96 (E.D.Pa. 1994). In recognizing that the purposes of the exhaustion requirement are to give notice to the charged party and provide an avenue for voluntary compliance without resort to litigation, the Third Circuit requires a district court to make an exception to the general rule in appropriate circumstances. See Glus, 562 F.2d at 888.
In Glus, the Third Circuit held that a district court should consider the following factors in determining whether to allow a plaintiff to proceed against a party who was not named in a plaintiff's EEOC charge:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained by the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.Id. Additionally, the court may consider whether the factual statements of the charge puts the unnamed defendant on notice of her alleged role in the discrimination. Bishop, 864 F. Supp. at 425; Pittman v. LaFontaine, 756 F. Supp. 834, 847 (D.N.J. 1991). None of these factors is independently decisive, but as a whole they must be considered in light of the purposes of the administrative procedure and the interests of the parties. Bishop, 864 F. Supp. at 425 (citing Glus v. G.C. Murphy Co., 629 F.2d 248, 251 (3d Cir. 1980), vacated on other grounds sub nom.,Retail, Wholesale Dep't Store Union, AFL CIO v. G.C. Murphy, 451 U.S. 935 (1981)).
Applying the Glus factors to the instant matter, the court finds that plaintiff has failed to file an EEOC complaint implicating any conduct by National or Williams and that there are no equitable reasons to permit this action to proceed against them. Plaintiff has failed to satisfy his burden of demonstrating, under Glus, that his failure to have implicated National and Williams in his administrative EEOC complaint is excusable.First, there was no impediment to plaintiff's ability to have ascertained the role, if any, played by National and Willaims in the conduct complaint of. His careful annotations of his claims in this case through various submissions reveal no prior contacts with National and Williams and no participation by them in the New Jersey program for which he was an applicant. Second, the interests of the unnamed parties (National and Williams) are not similar to those of the named parties, because National is a separate entity from ESNJ (see Affidavit of Dorothy M. Moser, ¶¶ 3-6), located in Chicago, Illinois, and National and its President and CEO Williams have no role in the New Jersey Easter Seals Therapeutic Foster Care/Shelter Care Program (id. ¶ 4); due to this divergence of interests, the EEOC process would have involved issues that were not present by plaintiff's assertion of a complaint against the New Jersey entity only. Third, whether these unnamed defendants were prejudiced by absence from the EEOC process is unknowable, in light of the EEOC's ultimate conclusion, without their input, that no prospective employer/employee relationship existed in any event. Fourth, there is no evidence that the unnamed parties made any representation to Mr. Doerr that their relationship to him would be through the named parties. Mr. Doerr's assertions that National is somehow the "head office" of ESNJ is unsupported by any factual basis and is flatly undermine by the Moser Affidavit, supra, which establishes that ESNJ is separately incorporated in New Jersey and that National is neither a parent or subsidiary corporation of ESNJ, and that National's relationship to ESNJ is limited to a membership agreement in which ESNJ is permitted to use the "Easter Seal" name. (Moser Aff. ¶ 3)
It follows, therefore, that none of the purposes of Congress' requirement that American with Disabilities Act defendants must first be named in an EEOC complaint would be served by deeming National and Williams to have been included in Doerr's filing. Accordingly, the motion of defendants National and Williams to dismiss for failure to exhaust EEOC administrative remedies will be granted.
C. Plaintiff's Failure to Timely File Complaint
The remaining defendants (ESNJ, Norris, Recca-Ryan and Waller) move to dismiss the complaint on the ground that the plaintiff did not timely file his complaint within ninety (90) days of his receipt from the EEOC of the right to sue notice as required by 42 U.S.C. § 2000e-5(f)(1). Plaintiff responds by arguing that he is without fault for the delay because he lost the notice and was ignored in his attempts to secure an extra copy of the notice. (Pl.'s Resp. to Mot. at 1-2.) Plaintiff further argues that the ninety-day time limit should be tolled until the time he filed his complaint, stating "[i]f you count 3 days for mailing . . . it is a reasonable accommodation . . . and should be accepted." (Id.)
The Third Circuit, in Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997), set forth the framework for examining defendants' 12(b)(6) motions when plaintiffs' plead the applicability of the equitable tolling doctrine. Since this doctrine requires a district court to look beyond the face of the pleadings, the court should determine the issue in a manner consistent with Rule 56 for summary judgment. Id. See also Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1391-92 (3d Cir. 1994); Hornsby v. United States Postal Service, 787 F.2d 87, 89 (3d Cir. 1986).
1. Summary Judgment Standard
A district court may grant summary judgment 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); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). 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.
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 Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert.dismissed, 465 U.S. 1091 (1984).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However,
the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial.Celotex, 477 U.S. at 322-323. In such situations, "the burden on the moving party may be discharged by 'showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325; Brewer, 72 F.3d at 329-330 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").
2. Plaintiff Did Not Timely File His Complaint
Section 2000e-5(f)(1) provides that if the EEOC dismisses a charge or takes no action within a specified period of time it "shall notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. . . ." 42 U.S.C. § 2000e-5(f)(1). The EEOC's notice and right to sue letter expressly references March 10, 1999, as the "Date Mailed." (See Pl.'s Ex. 8.) Although defendants point out that ESNJ received its copy of this notice on March 12 — two days after the date mailed — plaintiff states that he is uncertain as to when he received it, and that it could have taken the EEOC a "week or two" to actually mail the notice to him. (See Pl.'s Resp. at 1-2.)
Where parties dispute and the record fails to reveal the date on which the plaintiff received notice of the EEOC's determination, the district court follows the presumptions of Rule 6(e) of the Federal Rules of Civil Procedure. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n. 1 (1984); Mosel v. Hills Dept. Store, Inc., 789 F.2d 251, 253 n. 2 (3d Cir. 1986). Rule 6(e) states:
Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.
Fed.R.Civ.P. 6(e). Under Rule 6(e), plaintiff is deemed to have received the notice on March 13, 1999, which was a Saturday, which became Monday, March 15, 1999 under Rule 6(a), Fed.R.Civ.P.
Under Rule 6(e), then, even given the additional time, plaintiff was required to file the present action by June 13, 1999 — ninety days after March 15, 1999. Because plaintiff did not file his complaint until June 18, 1999, see notes 1 2, supra, his complaint was untimely filed by five days. This does not end the inquiry, however, as plaintiff has stated an equitable reason for failing the statutory requirement.
3. The Ninety Day Limitation Period Is Tolled
The ninety-day rule is not a jurisdictional predicate, and a district court may extend the limitation period if there is a recognized equitable consideration. See Mosel, 789 F.2d at 253. However, "in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day." Id. at 253 (quoting Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)). The Third Circuit has instructed that there are three principal, though not exclusive, situations where equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.
Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). See also Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997). In the present matter, plaintiff neither claims that the defendants misled him nor that he filed this action in the wrong forum. Thus, he would be entitled to relief only if he was in some extraordinary way prevented from asserting his rights.
Defendants assert that a number of decisions — principally the Supreme Court in Baldwin and the Third Circuit in Robinson — prevent this court from tolling the ninety-day period based on plaintiff'spro se status. In Baldwin, the Supreme Court found that a pro se litigant's filing of her actual right to sue notice with the district court did not satisfy the requirement that a complaint be filed within ninety-days of the receipt the notice. 466 U.S. at 151. The plaintiff eventually filed a complaint one hundred and thirty days after the right to sue letter was originally sent. Id. at 148-49. In holding that there was an insufficient basis to toll the ninety-day period, the Supreme Court was particularly concerned with "[t]he simple fact that [plaintiff] was told three times what she must do to preserve her claim and she did not do it. One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence." Id. at 151.
In Robinson, the Third Circuit held that Title VII's thirty-day limitations period for a federal employee's filing of a complaint would not be equitably tolled because the plaintiff was not prevented from timely filing a complaint by circumstances beyond his control. 107 F.3d at 1023. The court determined that the plaintiff's one conversation with an EEOC counselor where the counselor allegedly advised plaintiff that filing was unnecessary did not "rise to the level of being prevented in an 'extraordinary way.'" Id. The court noted that the plaintiff was "not inexperienced in the procedures required to maintain a discrimination complaint" and that the plaintiff failed to exercise "the due diligence which the Supreme Court has regarded as a condition for equitable tolling." Id. (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990).
This court believes that Baldwin and Robinson are distinguishable from the instant matter. Here, plaintiff is disabled and proceeding pro se andin forma pauperis. In addition, the court must accept as true, for purposes of summary judgment, plaintiff's contentions that he made numerous but unsuccessful attempts to secure another copy of his right to sue notice weeks before June 13th in order to ascertain the filing deadline. See Aman, 85 F.3d at 1080-81; Kowalski, 82 F.3d at 1288;Meyer, 720 F.2d at 307 n. 2 (3d Cir. 1983). Under these circumstances, the court concludes that the plaintiff was prevented, in an extraordinary way, from timely filing his complaint with this court.
Moreover, the court notes that Oshiver's three situations are "not exclusive," 38 F.3d at 1387. This court disagrees, however, with the holding of Judge Walls in Sadruddin v. City of Newark, 34 F. Supp.2d 923, 927-28 (D.N.J. 1999), that the plaintiff's pro se status alone is sufficient reason to equitably waive the 90-day limitations period. In that case, no consideration other than plaintiff's pro se filing status were present, and plaintiff apparently made no allegation that he was frustrated from timely compliance due to factors beyond his control; it would thus appear to be well-settled that Sadruddin's pro se status would be insufficient to excuse his untimely filing where he had correct notice and no reason not to have complied. Baldwin, 466 U.S. at 152; Mosel, 789 F.2d at 253. In other words, a plaintiff's pro se status is not a circumstance, standing alone, where the plaintiff "in some extraordinary way has been presented from asserting his or her rights" under Oshiver,supra, 38 F.3d at 1387.
In the present case, however, the court finds that plaintiff has presented extraordinary circumstances to require tolling the 90-day limitation period by five days, such that his filing on June 18th is timely. These considerations range far beyond the normal difficulties of typical pro se status. Mr. Doerr is profoundly disabled due to inability to use his arms, hands or legs and he must rely upon elaborate technology — as described in his submissions to this court — to perform tasks such as typing or telephoning. Although Mr. Doerr is no stranger to litigation, see Doerr v. New Jersey Department of Human Services, et al., Civil Action No. 98-3985 (D.N.J., Opinions Filed August 16, 1999 September 28, 1999), this case represents, so far as this court is aware, the first time Mr. Doerr had to comply with an EEOC right to sue letter. He has stated that when he misplaced the letter, which is understandable in light of his disability, he undertook efforts first by telephone and then by letter to obtain another copy from the EEOC. Although ultimately presenting his complaint to this court without having retrieved another copy of the EEOC's right to sue letter, Mr. Doerr has stated he was unaware of the precise deadlines for filing this case, being unable to recall exactly when he received the EEOC's letter. He pressed forward to perfect his complaint and prepared an application to proceed in forma pauperis, which arrived at the Clerk's Office on June 18, 1999.
Under this combination of factors including loss of the right to sue letter, inability to recall the 90-day deadline, diligent efforts to obtain a replacement, and unassisted preparation of pleadings by a profoundly disabled individual, this court finds extraordinary circumstances preventing timely filing and excuses the five-day lateness. Tolling the ninety-day period in this case "is in keeping with our goal of interpreting humanitarian legislation in a humane and commonsensical manner so as to prevent unnecessarily harsh results in particular cases." Oshiver, 38 F.3d at 1387. See also Hart v. J.T. Baker Chemical Co., 598 F.2d 829, 831 (3d Cir. 1979). Accordingly, the court will allow the plaintiff's discrimination claim to continue despite the procedural infirmity, and the remaining defendants' motion to dismiss on grounds of untimeliness is denied.
D. Employment Relationship
Finally, defendants collectively move to dismiss the complaint on the ground that the plaintiff has not asserted, and that he cannot, in good faith assert, that he enjoyed a prospective or actual employment relationship with them. (See Def.'s Mot. at 2-3). Defendants maintain that participants in the ESNJ program are independent contractors, and are thus not covered under the Act. (Id. at 3.) Plaintiff responds by asserting that the Act covers "employment applicants . . . and job hiring practices." (Pl.'s Resp. to Mot. at 2.)
Defendants are correct in that, like Title VII, the ADA protects "employees" but not "independent contractors." See EEOC v. Zippo Mfg. Co., 713 F.2d 32, 37-38 (3d Cir. 1983). See also Aberman v. J. Abouchar Sons, Inc., 160 F.3d 1148, 1150 (7th Cir. 1998); Dykes v. Depuy, Inc., 140 F.3d 31, 38-39 (1st Cir. 1998); Alford v. United States, 116 F.3d 334, 336 (8th Cir. 1997). It is unclear, however, whether plaintiff's prospective association with the ESNJ would have been as an independent contractor, as opposed to a covered employee.
The Act itself in not helpful as it defines an "employee" as "an individual employed by an employer." 42 U.S.C. § 12111(4). However, the "employee" who can bring suit is defined in broad terms, see Kachmar v. Sungard Data Systems, Inc., 109 F.3d 173, 179 (3d Cir. 1997), and in examining whether an employer-employee relationship exists, the proper inquiry looks to the nature of the relationship regardless of whether that party may or may not be technically described as an "employer."Graves v. Lowry, 117 F.3d 723, 728 (3d Cir. 1997). In making this determination, the Third Circuit has adopted the "hybrid" test, which looks at the economic realities of the situation but focuses on the employer's right to control the employee. Zippo Mfg. Co., 713 F.2d at 37. This test requires an examination of the following factors:
(1)the extent of the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (3) the skill required in a particular occupation; (4) whether the "employer" furnishes the equipment used and the place of work; (5) the length of time during which the individual has worked; (6) the method of payment; (7) the manner in which the work relationship is terminated; (8) whether the worker accumulates annual leave and retirement benefits; (9) whether the worker is an integral party of the business of the employer; and (10) the intention of the parties.Id. The ultimate question of whether a party is an employee or an independent contractor is one of law, and is answered by looking at all of facts applying the appropriate test. Alford 116 F.3d at 336; Short v. Central S.E. S.W. Areas Pension Fund, 729 F.2d 567, 571 (8th Cir. 1984).
In the instant matter, neither party has addressed the "hybrid" or any other agency test for determining the prospective relationship between the plaintiff and those parties involved in denying him participation in ESNJ's foster care program. Bare allegations contained in the complaint and defendant's responses in the motion to dismiss are insufficient to allow the court to decide as a matter of law whether the plaintiff would have participated in the program as an employee or as an independent contractor. As such, the court will require further record development and briefing to decide this question. Accordingly, the remaining defendants' motion to dismiss on this ground is denied without prejudice to defendants' right to seek summary judgment upon a factual record at the conclusion of discovery.
It appears that factual discovery was completed while this dismissal motion was pending. Magistrate Judge Kugler's Amended Scheduling Order (filed January 12, 2000), extended the time to complete factual discovery until January 31, 2000, and his Order (filed March 21, 2000) resolved the only pending discovery motion. A motion for summary judgment at this time would therefore be procedurally ripe.
CONCLUSION
For the foregoing reasons, the court grants the motion of defendants National Easter Seal Society, Inc. and James E. Williams to dismiss the complaint for failure to exhaust EEOC remedies, and the court denies the dismissal motion of the remaining defendants (Easter Seal of New Jersey, Tammy Norris, Allison Recca-Ryan and William Waller) without prejudice.
O R D E R
THIS MATTER having come before the court on defendants' motion to dismiss plaintiff Fred Doerr's complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(1) and 12(b)(6), Fed.R.Civ.P., and the court having considered the submissions of the parties, and for the reasons expressed in the Opinion of today's date;
IT IS on this, 28th day of March 2000 hereby
ORDERED that the motion is granted in part and the complaint is dismissed against defendants National Easter Seal Society, Inc. and James E. Williams, and the motion is denied without prejudice as to defendants Easter Seal of New Jersey, Tammy Norris, Allison Recca-Ryan, and William Waller.