Kohler v. Shenasky

Decision Date15 August 1995
Docket NumberCivil Action No. MJG-94-3240.
Citation914 F. Supp. 1206
PartiesCarole KOHLER, Plaintiff, v. John H. SHENASKY, II, M.D., et al., Defendants.
CourtU.S. District Court — District of Maryland

C. Christopher Brown, Martin H. Schreiber, II, and Brown, Goldstein & Levy, Baltimore, Maryland, for plaintiff.

David R. Thompson, Cowdrey, Thompson & Karsten, P.A., Easton, Maryland, for defendants.

GARBIS, District Judge.

The Court has before it Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. Having considered the legal memoranda submitted by the parties, the Court finds a hearing unnecessary to resolve the Motion.


Plaintiff Carole Kohler was diagnosed in 1984 as suffering from multiple sclerosis. She also suffers from massive obesity, hypothyroidism, hypertension and irritable bowel syndrome. As a result of the multiple sclerosis, Plaintiff's ability to walk is impaired, and she is required to be stationary for much of the day. This immobility, in turn, makes it difficult for Plaintiff to lose weight.

In 1993, Plaintiff began experiencing urinary incontinence. After several unsuccessful attempts to cure this condition, Plaintiff's internist, Dr. Richard E. Bird, referred her to John H. Shenasky, II, M.D. ("Dr. Shenasky"), a physician with Shenasky, Demarco & Genvert, P.A. ("the P.A."), a professional corporation employing urology specialists. The P.A. employs the only urology specialists in Salisbury, Maryland, the area in which Plaintiff resides.

On April 18, 1994, upon arrival at the P.A. office for her appointment with Dr. Shenasky, Plaintiff discovered that, because of her weight, she could not fit in the wheelchair provided by the P.A. and was thus unable to travel inside the building. Plaintiff informed an agent of the P.A. that she would return home, set another appointment date, and return with her own wheelchair.

Before Plaintiff could set a new appointment, however, Dr. Shenasky sent a letter to Dr. Bird informing him that he (Shenasky) was unwilling to see Plaintiff regarding her incontinence problem until Plaintiff lost weight. The text of the April 18, 1994, letter2 read:

Dear Rick:

This patient had an appointment to see me in the office today but cancelled it because she could not fit in our wheelchair! There is really no need for me to see a patient who has a neurological condition and massive obesity for incontinence.
The obvious thing to do is for the patient to be put on a weight reduction diet. If she is unwilling to lose appropriate weight, why be concerned about incontinence. While incontinence is I am sure a bothersome social problem to whose who suffer from it, it is not a condition from which anybody ever expired. I think the appropriate form of treatment here is for the patient to lose weight. When she gets down to her ideal weight for her height and if she is still incontinent, then we can exert some energy doing some evaluation to see if we can help the patient otherwise.

Given that the P.A. was the only urology practice in the area, as a consequence of Shenasky's refusal to treat Plaintiff, Plaintiff was forced to travel to Baltimore to see a urologist. Plaintiff also claims that the P.A. and Shenasky's refusal to provide access and treatment have caused her severe mental anguish and left her with a feeling of worthlessness and rejection.

On November 22, 1994, Plaintiff filed this action alleging three claims: (1) that Shenasky, individually and acting as an agent of the P.A., discriminated against Plaintiff on the basis of her disability, in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the "ADA"); (2) that Shenasky and the P.A. denied Plaintiff benefits and services solely due to her disability in violation of Section 504 of the Federal Rehabilitation Act, 29 U.S.C. § 794; and (3) that Shenasky and the P.A. intentionally inflicted emotional distress upon Plaintiff.

Defendants have filed a Motion to Dismiss or, in the Alternative, for Summary Judgment, on the grounds that (1) Plaintiffs' causes of action under the ADA and the Rehabilitation Act are barred by the applicable statute of limitations; and (2) that Plaintiff has failed to state a claim for intentional infliction of emotional distress.

For the reasons that follow, the Court finds that Plaintiff's ADA and Rehabilitation Act claims are not barred by the applicable statute of limitations, but that Plaintiff has failed to state a valid claim for intentional infliction of emotional distress.


A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) ought not be granted 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, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). The Court, when deciding a motion to dismiss, must consider well pled allegations in a complaint as true, and must construe those allegations in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). The Court must further disregard the contrary allegations of the opposing party. A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir.1969).


The Americans with Disability Act and the Rehabilitation Act, like many federal civil rights statutes, do not contain specific limitations periods. In such situations, Congress has directed courts to borrow the most appropriate state statute of limitations to apply to the federal cause of action. 42 U.S.C.A. § 1988. See also McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 129 (4th Cir.1994) (citing Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985)). The Fourth Circuit has held that the selection of an appropriate state statute involves a two part analysis: "The court should first select the state statute `most analogous' to the federal claim... then consider whether application of that limitations period is consistent with the federal statute and its underlying policies." McCullough, 35 F.3d at 129 (citations omitted).

Defendants argue that the "most analogous" state statute is Article 49B of the Maryland Annotated Code. Section 5 of this statute provides:

It is unlawful for an owner or an operator of a place of public accommodation or an agent or employee of the owner or operator, because of the ... physical or mental handicap of any person, to refuse, withhold from, or deny to such person any of the accommodations, advantages, facilities and privileges of such place of accommodation.

(Emphasis added). Section 9A further provides:

Any person claiming to be aggrieved by an alleged discrimination prohibited by any section of this article may make, sign and file with the Human Relations Commission ... a complaint in writing under oath.... A complaint must be filed within six months from the date of the occurrence alleged to be a violation of this article.

(Emphasis added). Defendants contend that the alleged discrimination against Plaintiff occurred on April 18, 1994, and that Plaintiff did not file her action until November 22, 1994, more than six months later. Defendants argue that Plaintiff's claims under the ADA and Rehabilitation Act are thus time-barred.

The Supreme Court addressed this issue in Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984), under slightly different facts. In Burnett, plaintiff had brought a racial and gender discrimination action under 42 U.S.C. §§ 1981, 1983, 1985, 1986 and the Fourteenth Amendment. Defendant argued that the six month statute of limitations from Art. 49B of the Maryland Code should apply because that state law prohibiting discrimination in the workplace was the "most analogous" state statute. The Supreme Court, affirming the Fourth Circuit's decision, disagreed.

The Supreme Court began its discussion by emphasizing that federal Civil Rights Acts

established causes of action arising out of rights and duties under the Constitution and federal statutes. These causes of action exist independent of any other legal or administrative relief that may be available as a matter of federal or state law and are judicially enforceable in the first instance.

Burnett, 468 U.S. at 50, 104 S.Ct. at 2929. Given the nature of federal civil rights actions, the Court reasoned that "a state law is not `appropriate' for purposes of borrowing a limitations period if it fails to take into account practicalities that are involved in litigating federal civil rights claims and policies that are analogous to the goals of the Civil Rights Acts." Id., 468 U.S. at 50-52, 104 S.Ct. at 2930.

As support for this conclusion, the Court focused on the practical differences between judicial and administrative enforcement of a civil rights action. According to the Court, litigating a civil rights claim requires considerable preparation, including obtaining counsel, conducting an investigation sufficient to draft pleadings, establishing the amount of damages, preparing legal documents, and filing and serving a complaint. Id. The Court contrasted this preparation to the practical difficulties faced by an aggrieved party who invokes administrative remedies, such as Art. 49B. Under Art. 49B, an aggrieved party's sole responsibility is to "make, sign and file with the Human Relations Commission ... a complaint in writing under oath." Md.Ann. Code, Art. 49B, § 9(a) (1979). The complaint need not contain more than the name and address of the person or entity alleged to have committed the discriminatory act, "the particulars thereof," and "other information as may be required from time to time by the Commission." Id. The individual has no obligation to investigate his allegations, and the entire burden of developing the case rests on the Human Rights Commission.

In light of these differences, the Court...

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