578 F.3d 203 (3rd Cir. 2009), 07-4285, Fowler v. UPMC Shadyside

Docket Nº:07-4285.
Citation:578 F.3d 203
Opinion Judge:NYGAARD, Circuit Judge.
Party Name:Barbara FOWLER, individually, and on behalf of a group of similarly situated individuals, Appellant v. UPMC SHADYSIDE; UPMC, doing business as University of Pittsburgh Medical Center.
Attorney:Gregory G. Paul, Esq. (Argued), Equality at Work, Sewickley, PA, for Appellant. Pamela G. Cochenour, Esq. (Argued), Pietragallo, Gordon, Alfano, Bosick & Raspanti, Pittsburgh, PA, for Appellee.
Judge Panel:Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.
Case Date:August 18, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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578 F.3d 203 (3rd Cir. 2009)

Barbara FOWLER, individually, and on behalf of a group of similarly situated individuals, Appellant


UPMC SHADYSIDE; UPMC, doing business as University of Pittsburgh Medical Center.

No. 07-4285.

United States Court of Appeals, Third Circuit.

August 18, 2009

Argued May 20, 2009.

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[Copyrighted Material Omitted]

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Gregory G. Paul, Esq. (Argued), Equality at Work, Sewickley, PA, for Appellant.

Pamela G. Cochenour, Esq. (Argued), Pietragallo, Gordon, Alfano, Bosick & Raspanti, Pittsburgh, PA, for Appellee.

Before: FUENTES, JORDAN, and NYGAARD, Circuit Judges.


NYGAARD, Circuit Judge.

In this appeal we are asked to determine whether the Appellant, Barbara Fowler, was too late in filing her discrimination claims against her employer, UPMC Shadyside Hospital. Fowler charged UPMC Shadyside with violating her rights under the Rehabilitation Act. The District Court dismissed Fowler's complaint before any responsive pleading was filed or discovery took place, finding it time-barred. Alternatively, the District Court determined that Fowler's complaint did not allege a disability under the Rehabilitation Act and that claims under the Act are inappropriate for class action litigation. We will vacate the dismissal and remand the cause.


The relevant facts underlying this appeal are not complicated and we take them

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directly from Fowler's complaint. Fowler was injured on the job while employed by UPMC as a janitor/housekeeper at Shadyside Hospital. She was injured on April 22, 2002 and was placed on Family/Medical Leave and short-term disability. After she was released by her doctor to perform sedentary work, UPMC provided Fowler with a light-duty clerical position. However, UPMC eliminated this position on August 29, 2003. Fowler avers in her complaint that before UPMC eliminated her clerical position she applied for a similar job but was never contacted by UPMC about that position. UPMC terminated her employment on September 24, 2003.

Compared to the factual history, the procedural history is more complex. Fowler filed her complaint on June 14, 2007. She maintains, however, that she first asserted her claims by filing an amended complaint in another action, Tish v. Magee-Woman's Hospital of UPMC, No. 06-820, 2007 WL 1221137 (W.D.Pa. April 24, 2007). The plaintiff in that case, Tish, had previously attempted to join in yet another case, Bolden v. Magee Woman's Hospital of UPMC, No. 05-1063, 2007 WL 1228479 (W.D.Pa. Aug. 1, 2005). The plaintiff in Bolden had sought leave of court to add Tish as an additional named plaintiff and to include class action allegations asserting that UPMC has a pattern or practice of failing to transfer employees on disability leave in violation of the Americans with Disabilities Act and the Rehabilitation Act. Judge Terrence F. McVerry denied that motion, and severed the parties, directing that " the claims of [Tish], as well as the claims of any other potential plaintiffs who allegedly suffered a similar sort of wrong, should be filed as individual cases, and not as a class action." Tish, 2007 WL 1221137, at *8. Fowler re-filed a complaint pursuant to Judge McVerry's orders on June 14, 2007.

The District Court, per Judge Arthur J. Schwab, dismissed Fowler's complaint, finding that it was time-barred by the Rehabilitation Act's general two-year statute of limitations. The District Court also determined that Fowler's restriction to sedentary work did not constitute a disability under the Rehabilitation Act and that Fowler's class action allegations are not appropriate claims under the Act.

We review a district court's decision granting a motion to dismiss under a plenary standard. See Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.2005). The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 because Fowler's causes of action arise under federal law. We have jurisdiction under 28 U.S.C. § 1291 because this is an appeal from a final order.


We first must determine whether a two-year or a four-year statute of limitations applies to Fowler's failure-to-transfer claim. There is disagreement among the District Courts in this Circuit as to the appropriate time limitation in this type of case.1 We resolve this tension today in favor of a four-year limitation period.

Fowler alleges violations of the Rehabilitation Act, 29 U.S.C. § 794 et seq.2 Congress passed the Rehabilitation Act in 1973 to make certain that no individual with a disability would " be subjected to discrimination under any program or activity receiving Federal financial assistance."

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29 U.S.C. § 794(a). The Act does not include an express limitation clause. We have, therefore, borrowed the statute of limitations of the most analogous state law cause of action. Disabled in Action of Pennsylvania v. SEPTA, 539 F.3d 199, 208 (3d Cir.2008) (citing North Star Steel Co. v. Thomas, 515 U.S. 29, 33-34, 115 S.Ct. 1927, 132 L.Ed.2d 27 (1995); Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985)). In the Disabled in Action case, for example, we held that a two-year statute of limitations applied to claims brought under § 504 of the Rehabilitation Act because the discrimination claims were analogous to a personal injury action under Pennsylvania law. Were Fowler alleging discrimination claims in this case of the type actionable under § 794(a), a two-year limitation would also be appropriate.

Rehabilitation Act claims that allege a " failure-to-transfer," however, present a more difficult question. UPMC argues that these claims are also subject to Pennsylvania's two-year statute of limitations, asking us to again " borrow" the two-year statute of limitations applicable to similar claims arising under Pennsylvania law. Fowler contends that her failure-to-transfer claims are subject to the four-year limitation clause established by 28 U.S.C. § 1658, which provides that:

(a) Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section [enacted Dec. 1, 1990] may not be commenced later than 4 years after the cause of action accrues.

28 U.S.C. § 1658(a). In Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004), the Supreme Court resolved this dispute by finding a four-year statute of limitations appropriate. Reasoning that § 1658 applies to any claim arising under an act of Congress which was enacted after December 1, 1990, the Supreme Court concluded that hostile work environment, wrongful termination, and failure-to-transfer claims under § 1981 were governed by § 1658 because they were in essence " enacted" by the 1991 Civil Rights Act. Jones, 541 U.S. at 382, 124 S.Ct. 1836 (quoting 42 U.S.C. § 1981(b)). This is so even where the original statute had been enacted before 1991. The Supreme Court explained:

Nothing in the text or history of § 1658 supports an interpretation that would limit its reach to entirely new sections of the United States Code. An amendment to an existing statute is no less an " Act of Congress" than a new, stand-alone statute. What matters is the substantive effect of an enactment-the creation of new rights of action and corresponding liabilities-not the format in which it appears in the Code.

Id. at 381, 124 S.Ct. 1836.3 From this point, our inquiry turns on chronology. We must determine whether failure-to-transfer claims under the Rehabilitation Act were enacted after December 1, 1990.

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The Rehabilitation Act, originally enacted in 1973, provides that " No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ..." 29 U.S.C. § 794(a). This general prohibition against disability-based discrimination by recipients of federal funding was in effect well before December 1, 1990.4 Employers were required to make " reasonable accommodation" for a disabled employee's limitations. See Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1383 (3d Cir.1991). Employers were not required to transfer a disabled employee to a vacant position as an accommodation of his or her disability. See School Board of Nassau County v. Arline, 480 U.S. 273, 289 n. 19, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). This changed, however, with the enactment of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

The ADA identified the reassignment of a disabled employee to a vacant position as a " reasonable accommodation" of an employee's disability. 42 U.S.C. § 12111(9). Under the ADA's Title I, an employer's failure to transfer a disabled employee to a vacant position constitutes discrimination. Id. After the ADA went into effect, Congress amended the Rehabilitation Act by incorporating the ADA's substantive standards for determining...

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