Charles Christ v. Public Service Electric and Gas Co. 99-5694 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 99-5694 CHARLES CHRIST, Appellant, v. PUBLIC SERVICE ELECTRIC and GAS CO., On Appeal from the United States District Court for the District of New Jersey BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE APPELLANT STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission") is the agency charged with the enforcement of Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), and other federal anti-discrimination statutes. In this ADA case, the district court granted summary judgment in favor of the defendant, Public Service Electric and Gas Co. ("PSE&G"), holding that the plaintiff, Charles Christ, did not file a timely charge of discrimination with the Commission. We believe that the district court's timeliness ruling is legally erroneous and has significant, negative implications for the enforcement of the ADA and other anti-discrimination statutes. To assist the Court in resolving the important issue of timeliness raised by this appeal, the Commission, pursuant to F.R.A.P. 29(a), offers its views as amicus curiae. STATEMENT OF THE ISSUE Whether the plaintiff filed a timely charge of discrimination under the ADA, where the charge was filed within 300 days of the date on which the defendant denied the plaintiff's renewed request for access to the defendant's nuclear power plant, where the denial of the renewed request constituted a new and discrete employment event, and where the defendant, in previously denying the plaintiff's request for access, held out the possibility that it would re-evaluate the plaintiff's case at some future point, and, based on evidence of continued sobriety, grant the request for access. STATEMENT OF THE CASE Charles Christ is a union painter who worked for Williams Power Company.<1> Dist. Ct. Op. (July 8, 1999) at 2. Williams contracted with PSE&G to provide painting services for PSE&G's nuclear power plant. Id. at 2-3. In 1987, Christ failed a drug screen test for marijuana. Id. at 3. As a result of that test, PSE&G denied Christ unrestricted access to its nuclear power plant. Id. In April 1991, Christ entered a course of rehabilitation at the Maryville Alcohol Rehabilitation Center. Id. Christ completed the course and became active in Alcoholics Anonymous ("AA"). Id. Christ claims that he has remained drug and alcohol free since completing the rehabilitation course. Id. In 1992, Christ reapplied for unrestricted access to PSE&G's nuclear plant site. Id. In support of his application, Christ provided verification of his completion of the rehabilitation course and letters attesting to his sobriety and active participation in AA. Id. In June 1992, PSE&G denied Christ's request for access, citing his history of alcohol and drug abuse. Id. In October 1992, Christ sought reconsideration of the denial. Id. at 4. PSE&G responded as follows in a letter dated October 19, 1992: 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. Id. In August 1994, Christ contacted PSE&G, renewing his request to be granted unrestricted access to the nuclear power facility. Id. at 4-5. On September 1, 1994, PSE&G denied Christ's request. Id. at 5. PSE&G explained 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." Id. On October 7, 1994, Christ filed a charge of discrimination with the Commission. Id. In his charge, Christ challenged PSE&G's decision, in September 1994, to deny Christ access to its nuclear power plant. Id. Christ alleged that PSE&G violated the ADA by relying solely upon Christ's past history with polysubstance abuse. Id. The Commission found that PSE&G violated the ADA by denying Christ's September 1994 request for access and attempted to conciliate Christ's charge. Id. Christ subsequently filed a lawsuit under the ADA. Id. at 5-6. Christ renewed the allegations of his Commission charge, focusing on PSE&G's September 1994 decision. Id. In dismissing Christ's complaint, the district court held that Christ did not file a timely charge of discrimination. The court acknowledged that Christ's charge was timely, as measured from the September 1994 denial. The court ruled, however, that the operative employment event was PSE&G's decision, in June or October of 1992, to deny Christ's request for access. The court analogized to cases involving job terminations where courts have held that "an employer's later failure to reconsider [the termination] 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." Id. at 10. In the district court's view, only the 1992 decision was actionable; any future denial of access was merely a reconsideration of that "earlier" decision and, thus, not subject to challenge under a charge filed more than 300 days after the 1992 decision. ARGUMENT THE DISTRICT COURT ERRED IN DISMISSING CHRIST'S COMPLAINT ON TIMELINESS GROUNDS. This case raises important issues of timeliness.<2> We believe, for at least two reasons, that Christ filed a timely charge of discrimination with the Commission. Our primary argument on timeliness is that Christ's claim is timely because the discriminatory event challenged by Christ -- the September 1994 denial of his request for access -- is a separate employment event, giving rise to independent suit rights. Christ is not seeking to litigate the 1987 decision to revoke his unrestricted access to PSE&G's nuclear power plant, a pre-ADA decision that falls outside the reach of the statute. Nor is Christ challenging the decision, in 1992, to deny Christ's request for access to the plant. Christ is disputing the September 1994 decision, a decision made on the basis of a "full-reevaluation" of Christ's condition. Dist. Ct. Op. (July 8, 1999) at 4. Because Christ's charge was filed within 300 days of that decision, the charge was timely. The district court analogized to cases in which an employee, terminated from a job (or denied a promotion), is precluded from reviving his dormant claim by simply tendering requests for reconsideration of the decision. See, e.g., Burnham v. Amoco Container Co., 755 F.2d 893, 894-95 (11th Cir. 1985); Dugan v. Ball State Univ., 815 F.2d 1132, 1134 (7th Cir. 1987). We have no quarrel with the view that "a failure to rehire subsequent to an allegedly discriminatory firing, absent a new and discrete act of discrimination in the refusal to rehire itself, cannot resurrect the old discriminatory act." Burnham, 755 F.2d at 894. In cases of this nature, however, there is, potentially, "a new and discrete act of discrimination." The ADA makes it unlawful for an employer to rely upon an individual's prior history of drug or alcohol use if that history stems from an impairment that was substantially limiting at the time.<3> The ADA, however, contains a direct threat defense, 42 U.S.C. § 12113(b), which permits an employer to reject an individual who poses a "significant risk of substantial harm to the health or safety of the individual or others," a determination based on "an individualized assessment of the individual's present ability to safely perform the essential functions of the job." 29 C.F.R. § 1630.2(r). An individual with a recent history of drug or alcohol abuse, seeking employment in a safety-sensitive job, may well pose a "significant risk to the health or safety of the individual or others." The same individual, at some later point, may not, if the individual has remained drug- and alcohol-free for a significant period of time. See In the Matter of: Office of Federal Contract Compliance Programs, United States Dep't of Labor v. Exxon Co., Case No. 92-OFC-4, 1996 WL 662445, *12 (D.O.L. Oct. 28, 1996) (citing studies showing a "'significant reduction in relapse rates'" after a period of "two years of abstinence;" "individuals who have been sober a long time tend to stay sober"). Under these circumstances, it cannot be said that the individual is seeking to "resuscitate a stale claim by asking for reconsideration." Dugan, 815 F.2d at 1135. This case proves the point. When Christ first sought access to the nuclear power site, in 1992, he had recently completed a rehabilitation course. Although, arguably, Christ had achieved the status of a "prior" drug user, thus meriting the possible protection of the ADA, 42 U.S.C. § 12114(a) (stating that the ADA does not protect an individual "currently engaging in the illegal use of drugs"), there was still a relatively small gap in time between Christ's completion of the course and his request for access. By the time Christ requested access, in August 1994, there had been an intervening period of some two years, during which Christ claims to have been sober and drug-free. The issue of whether PSE&G was justified in rejecting Christ's access request, in 1992, is not the same as the issue of whether PSE&G was justified in doing so in 1994. There are important reasons for rejecting the district court's timeliness rationale. The factual scenario in this case is not uncommon. There will frequently be cases in which individuals with drug or alcohol problems are rejected for employment in safety-sensitive jobs. These individuals may seek employment in these jobs, at some later point, after engaging in rehabilitative efforts. A plaintiff, in the early stages of rehabilitation, should not be required to challenge an employment decision at that time or be forever barred from using the ADA to secure the employment opportunity. Indeed, the district court's rationale would require individuals to strike at the earliest possible moment, thereby increasing the filing of unnecessary charges and decreasing the chance that the employment situation will be resolved in a voluntary fashion. In a case of this nature, it is in the best interests of all concerned that the dispute be resolved amicably. An employer, concerned with safety, should have some freedom to insist upon a track record of sobriety and drug-free living. An individual, seeking to rehabilitate himself, should be given the maximum opportunity to do so. The district court's rationale turns this scenario on its head, forcing a case into a contentious posture while the parties are still in the process of working out the dispute. The charge-filing period should not begin to run while a "tentative [employment] action is still subject to correction or adjustment." Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1421 (3d Cir. 1991) (en banc). Even assuming that the September 1994 denial did not constitute a new and discrete employment event, there is an additional argument in support of timeliness -- the charge-filing period was tolled during the period in which PSE&G held out the possibility that it would grant access to Christ, based upon a "re-evaluation" of his circumstances. Dist. Ct. Op. (July 8, 1999) at 4. Equitable tolling applies where an employee is "actively pursuing [an] attempt amicably to resolve his employment situation and while the company [is] sending positive signals." Bonham v. Dresser Indus., Inc., 569 F.2d 187, 193 (3d Cir. 1977). The doctrine ensures that an individual's charge is not viewed as untimely "'where the employer's own acts or omissions have lulled the plaintiff into foregoing prompt attempts to vindicate his rights.'" Miller v. Beneficial Management Corp., 977 F.2d 834, 845 (3d Cir. 1992) (quoting Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 (3d Cir. 1983)); accord Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). In this case, Christ was told that he could reapply for access after the passage of one year. PSE&G explained that, "[a]fter 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." Dist. Ct. Op. (July 8, 1999) at 4. Plainly, PSE&G sent "positive signals" to Christ that it would be willing to re-evaluate his case at some future point and, potentially, grant his request. Cf. Vadino v. A. Valey Eng'rs., 903 F.2d 253, 261-64 (3d Cir. 1990) (refusing to toll the limitations period, based on an employer's alleged promise to settle the dispute, where it was unreasonable, under the circumstances, for the plaintiff to rely upon that promise and where the plaintiff knew that further attempts to resolve the dispute through his union were "futile"). Of course, the mere possibility that an employer might change its mind and rescind a final employment decision does not toll the running of the charge-filing period. See Delaware State College v. Ricks, 449 U.S. 250, 257-61 (1980). This case, however, does not involve a final employment decision, subject only to challenge under an employer's internal grievance procedure. See id. at 261 (stressing that a grievance procedure, "by its very nature, is a remedy for a prior decision"). This case involves a decisional process that was fluid in nature, in which a decision at point A, to deny access, was not preclusive of a decision, at some later point, to grant access. PSE&G held out the possibility that it would reconsider Christ's access request after he had demonstrated "sobriety and participation in self-help programs" for a period of one year. Dist. Ct. Op. (July 8, 1999) at 4. PSE&G clarified that such a "reconsideration" would "involve[] a full re-evaluation," thus confirming that any future decision on access would be a discrete employment decision in its own right. Id. Under these circumstances, Christ was entitled to take PSE&G at its word; to continue his rehabilitation regimen and to reapply for access at some future point. That Christ chose this course of action, rather than the more contentious route of immediately filing a charge of discrimination, does not render his subsequent charge, filed within 300 days of the September 1994 denial, untimely.<4> CONCLUSION The district court's timeliness ruling is legally flawed. This Court should hold that Christ filed a timely charge of discrimination under the ADA. Respectfully Submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 May 8, 2000 (202) 663-4059 1 Our statement of the case is based entirely upon the facts as set forth in the district court opinion granting summary judgment. 2 In the district court, PSE&G also argued that summary judgment was proper because PSE&G was not Christ's "employer" within the meaning of Title I of the ADA. This argument is wholly without merit. The term "employer," in Title I of the ADA, is defined as "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendared weeks in the current or preceding calendar year, and any agent of such person." 42 U.S.C. § 12111(5)(A). This definition mimics the definition of "employer" in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b). It is well-established that this definition of employer "looks to the level of control an organization asserts over an individual's access to employment and the organization's power to deny such access." Graves v. Lowery, 117 F.3d 723, 728 (3d Cir. 1997). PSE&G exercised preemptive control over Christ's employment in PSE&G's nuclear power facility and, thus, was an "employer" of Christ within the meaning of Title I of the ADA. See also Carparts Distribution Ctr., Inc. v. Automotive Wholesalers's Ass'n of New England, Inc., 37 F.3d 12, 16-17 (1st Cir. 1994) (entity qualifies as an individual's "employer" under the ADA if the entity exercises "control over an important aspect of [the individual's] employment" or acts as the "agent" of the actual employer in determining entitlement to an employment opportunity); Christopher v. Stouder Mem'l Hosp., 936 F.2d 870, 875 (6th Cir. 1991) (entity meets the definition of "employer" if it "'significantly affects access of any individual to employment opportunities'"). 3 The theory, in such a case, is that the individual has a record of a substantially limiting impairment, rooted in drug or alcohol addiction. See 42 U.S.C. § 12102(2)(B). We take no position on whether Christ has a covered disability within the meaning of the ADA, a point not raised in PSE&G's motion for summary judgment. 4 The district court stated that, if equitable tolling was "applicable at all, it would only be appropriate to toll the statute's running until June of 1993, the date when [Christ] was told that he could first seek reconsideration of the June 1992 denial." Dist. Ct. Op. (July 8, 1999) at 17 n.4. This too narrowly construes the effect of PSE&G's representations to Christ. PSE&G did not say that Christ would have to seek reconsideration by June 1993. PSE&G simply indicated that Christ would have to wait until at least that date before seeking reconsideration. Obviously, Christ's chances of having his request granted increased with the passage of time, during which Christ remained sober and drug-free. Christ was entitled to take additional time, beyond the June 1993 date, to develop a more extensive record of sobriety.