Southerland v. Hardaway Management Co., Inc

• Decision Date: 12 January 1995
• Docket Number: No. 93-6513,93-6513
• Citation: 41 F.3d 250
• Parties: 3 A.D. Cases 1566, 8 A.D.D. 390, 5 NDLR P 457 Carole J. SOUTHERLAND, Plaintiff-Appellant, v. HARDAWAY MANAGEMENT COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 250

41 F.3d 250

3 A.D. Cases 1566, 8 A.D.D. 390, 5

NDLR P 457

Carole J. SOUTHERLAND, Plaintiff-Appellant, v. HARDAWAY MANAGEMENT COMPANY, INC., Defendant-Appellee.

No. 93-6513.

United States Court of Appeals Sixth Circuit.

Submitted Oct. 4, 1994.

Decided Nov. 29, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 12, 1995.

Norman E. Harned and Joy D. Denton (briefed), Harned, Anderson & Bachert, Bowling Green, KY, for plaintiff-appellant.

John David Cole (briefed), Matthew J. Baker, and Douglas W. Gott, Cole, Minton & Moore, Bowling Green, KY, for defendant-appellee.

Before: LIVELY, JONES, and SILER, Circuit Judges.

LIVELY, J., delivered the opinion of the court, in which SILER, J., joined. JONES, J. (pp. 257-59), delivered a separate opinion concurring in part.

LIVELY, Circuit Judge.

The federal question presented by this appeal is what Kentucky statute of limitations applies to claims brought under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1988). The district court also decided one state law claim and dismissed another without prejudice.

The plaintiff-appellant, Carole J. Southerland, a former employee of the defendant, Hardaway Management Company, Inc. (Hardaway), appeals from summary judgment in favor of Hardaway resulting in dismissal of her action. The district court held that the plaintiff's federal claim is barred by Kentucky's one year statute of limitations applicable to actions for personal injury and that the plaintiff failed to establish an issue in her state claim for wrongful discharge in retaliation for pursuing a claim under Kentucky's Workers' Compensation Act.

The parties waived oral argument, and the appeal was submitted for decision on the briefs and district court record.

I.

The defendant Hardaway manages rental properties in Morgantown, Kentucky. The plaintiff worked at one of these properties, the Oak Hill Apartments. Initially a part-time employee and later an assistant manager, Ms. Southerland became the complex's manager when Hardaway purchased the Oak Hill Apartments on December 1, 1984. According to Hardaway, Ms. Southerland's managerial responsibilities included office work, collecting rent, maintaining and repairing the apartment buildings' grounds and commons rooms and supervising the maintenance staff. Ms. Southerland differs, and contends that she performed the more physical aspects of her job as extra duties. In her own words, she did this "simply because she liked it and wanted to." She asserts in her brief that statements from other Hardaway employees verify the voluntary nature of these activities.

On October 29, 1988, Ms. Southerland suffered a work-related back injury while installing carpet in her office at the Oak Hill Apartments. She continued to work until November 4, 1988, when her treating physician, Dr. Craig Beard, ordered her to stop. Thereafter, Hardaway terminated the plaintiff's employment. The parties dispute exactly when this termination occurred. Hardaway maintains that Dean Carter, Hardaway's vice president, terminated Ms. Southerland on January 27, 1989--the day the plaintiff told Ms. Carter she was ready to return to work. Ms. Southerland argues that Hardaway's business records indicate her termination by the company probably occurred on November 5 or 7, 1988. Nevertheless, the district court found that neither the date of the injury, October 29, 1988, nor the date of termination, January 27, 1989, was in dispute. (Summary Judgment Order, App. at 20).

On January 3, 1989, Dr. Beard gave the plaintiff a release to return to work, with restrictions against repetitive bending at the waist and lifting more than thirty pounds. On January 27, 1989, Ms. Southerland told Hardaway Vice President Dean Carter about Dr. Beard's restrictions, and Ms. Carter informed the plaintiff that she was terminated. Nearly a year later, Ms. Southerland filed a worker's compensation claim, which she eventually settled for a 28.5% occupational disability, commuted to a lump sum of $15,000.

II.

Ms. Southerland filed this action against Hardaway on August 30, 1991, seeking damages and reinstatement to her former job or to a comparable one which she could perform with her physical restrictions. The complaint set forth three causes of action:

(1) Wrongful termination in violation of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 701 et seq. ¹

(2) Termination in violation of the Kentucky Equal Opportunities Act, KRS Ch. 207.

(3) Termination in violation of the Kentucky Workers' Compensation Act, KRS Ch. 342.

After discovery, both parties filed motions for summary judgment on all claims. On March 19, 1993, the district court denied the plaintiff's motion but partially granted the defendant's motion, dismissing Ms. Southerland's claim for wrongful discharge in retaliation for seeking benefits under the Kentucky Workers' Compensation Act. Following the steps prescribed by the Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), in ruling on the third cause of action the court concluded that "the Plaintiff has not presented probative evidence to satisfy the Court that there is any genuine issue of material fact and, therefore, the Defendant should be granted judgment as a matter of law." The court noted that the plaintiff was an at-will employee and her "bare assertions" of a violation were insufficient.

On October 18, 1993, the district court dismissed the remaining two claims. The court ruled that the federal claim under the Rehabilitation Act was not filed within the applicable period of limitations, and declined to exercise pendent (now "supplemental") jurisdiction over the remaining state law claim pursuant to the Kentucky Equal Opportunities Act. The Rehabilitation Act ruling was based on this court's decision in Hall v. Knott County Bd. of Educ., 941 F.2d 402 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 982, 117 L.Ed.2d 144 (1992). The district court construed this court's opinion in Hall as holding that a claim under the Rehabilitation Act in which a Kentucky statute of limitations applies must be brought within one year of the claim's accrual. Inasmuch as the plaintiff filed this action more than two and one-half years after the defendant discharged her, the action was time-barred.

III.

The plaintiff appeals both summary judgment rulings and seeks a remand for trial. We review a district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party, here the plaintiff. EEOC v. University of Detroit, 904 F.2d 331 (6th Cir.1990); Pinney Dock & Transp. Co. v. Penn. Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988).

IV.

We turn first to the Rehabilitation Act claim.

A.

The plaintiff contends that in Hall this court did not settle the issue of which Kentucky statute of limitations applies to actions under the Rehabilitation Act. She argues that Hall primarily concerned the Education of the Handicapped Act, 20 U.S.C. Sec. 1400 et seq. (1988), and that the Rehabilitation Act claim raised a minor issue. The plaintiff characterizes the court's discussion of time limitations respecting the Rehabilitation Act as "dicta." From this premise the plaintiff goes on to argue that the district court in this case should have applied the Kentucky five year statute of limitations for causes of action created by statute, KRS 413.120.

The Hall court followed Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), in stating that Kentucky's one year statute of limitations for personal injury actions, KRS 413.140, establishes the limitations period for claims under the Rehabilitation Act. In Wilson the Supreme Court held that because 42 U.S.C. Sec. 1983 contains no statute of limitations, a federal court considering an action brought under that statute must borrow the state statute of limitations that is "most analogous" to apply to the Sec. 1983 claim. Id. at 268, 105 S.Ct. at 1942-43. The Court concluded that the most analogous cause of action under state law to Sec. 1983 is a tort action for personal injuries. Thus, federal courts must apply the state statute of limitations for personal injury claims in all Sec. 1983 cases.

The plaintiff contends that the purpose of the Rehabilitation Act is a "far cry" from the purpose of 42 U.S.C. Sec. 1983, the general civil rights act adopted by Congress in 1871. Unlike Sec. 1983, which created no substantive rights but provided a remedy for persons deprived of federally created rights by state officials and agents, section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794, ² created a specific right--the right of handicapped persons to be free of discrimination under any federally funded program.

The Court pointed out in Wilson that because of its very nature, providing as it does a "uniquely federal remedy," Sec. 1983 can have no close counterpart in state statutes. Wilson, 471 U.S. at 271-72, 105 S.Ct. at 1944-45. The plaintiff asserts that section 504, on the other hand, can and does have state statutory counterparts. Extending this reasoning, the plaintiff argues that the Kentucky Equal Opportunities Act, KRS Ch. 207, forbids discrimination against persons with disabilities and is thus closely analogous in purpose to the Rehabilitation Act. Since Kentucky courts have held that the five year statute of limitations is applicable to claims under the Equal Opportunities Act, the district court should have applied that statute in the present case.

B.

The defendant responds that the district court and this court are bound by Hall, and the Hall court unequivocally held that Kentucky's one year statute of limitations for personal injury actions governs cases brought under section 504 of the Rehabilitation Act. Wh...