SEAN J. McLAUGHLIN, Chief District Judge.
Carmella George ("Plaintiff"), commenced this civil action against the County of Allegheny ("Defendant"), alleging violations of the Rehabilitation Act of 1973, ("the Rehab Act"), 29 U.S.C. 791 et seq.
Plaintiff was hired by the Defendant as a Correctional Officer ("CO") at the Allegheny County Jail in May 1998. Pl. Ex. 4 ¶ 3.
On March 19, 2008, Plaintiff called off sick. Def. Ex. G. On March 20, 2008, Plaintiff provided Lynda Pastor ("Pastor"), the Administrative Officer at the Allegheny County Jail, with a doctor's note from Rodney M. Kosanovich, D.P.M., stating that Plaintiff had been under his care for a "right foot mass" from March 19, 2008 to April 4, 2008 and was limited to "light duty, no inmate contact." Def. Exs. C-D. Plaintiff was informed by Pastor in a letter dated March 20, 2008 that Defendant was unable to accommodate her request for light duty. Def. Ex. B. Plaintiff was further advised that inmate contact was an essential function of her job pursuant to her job description, and that there were no openings meeting her restrictions. Def. Ex. B. Plaintiff subsequently completed an FMLA application, which stated that she was having foot surgery on April 2, 2008 and needed to be off of her foot with no inmate contact. Def. Exs. E-F; H.
On April 21, 2008, Plaintiff provided Pastor with a second doctor's note from Dr. Kosanovich, stating that Plaintiff had been under his care for foot surgery from March 19, 2008 to May 24, 2008, and was limited to "light duty — no inmate contact." Def. Ex. J. Plaintiff was again informed that Defendant was unable to accommodate her request for light duty, that inmate contact was an essential function of her job, and that there were no openings meeting her restrictions. Def. Ex. K. Dr. Kosanovich authored a third note on May 29, 2008, stating that Plaintiff needed to be off her right foot, on light duty, with no inmate contact until June 9, 2008. Def. Ex. L.
Plaintiff was released to return to work with no limitations by Dr. Kosanovich on June 9, 2009, and she returned to work on June 10, 2008. Pl. Ex. 4 ¶ 35; Def. Exs. N; BB ¶ 16. It is undisputed that Plaintiff was not provided with any accommodations, and she performed all of the CO job functions, including unrestricted contact with inmates. Def. Ex. BB ¶ 16.
Plaintiff continued to work without restrictions until on or about July 2, 2008. Pl. Ex. 4 ¶ 36. She claims she stopped working due to foot swelling and elevated blood pressure. Pl. Ex. 4, ¶ 37. Plaintiff averred that she hand delivered a doctor's note to Pastor's secretary in early July 2008 restricting her to light duty work. Pl. Ex. 4 ¶¶ 39-40. Plaintiff further averred that she was informed by the Deputy Warden that she could remain off work indefinitely as long as she remained under a doctor's care. Pl. Ex. 4 ¶¶ 43-45.
On September 15, 2008, Plaintiff provided Pastor with a doctor's note from Dr. Daniel Janiak stating that she was restricted to light duty with no inmate contact from September 13, 2008 to December 30, 2008. Pl. Ex. 4 ¶ 46; Def. Ex. R. Plaintiff was subsequently terminated effective September 16, 2008 due to her inability to return to work with a full duty release. Def. Ex. S.
Plaintiff commenced this action against Defendant on January 20, 2011. [ECF No. 1]. Defendant filed a Motion for Summary Judgment on December 4, 2012. [ECF No. 40]. Oral argument was held on June 26, 2013 [ECF No. 61], and the matter is now ripe for disposition.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "To demonstrate that no issue is in dispute as to any material fact, the moving party must show that the non-moving party has failed to establish one or more essential elements of its case on which the non-moving party has the burden of proof at trial." McCabe v. Ernst & Young, LLP, 494F.3d 418, 424 (3d Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
To survive the motion, the non-moving party must go beyond its pleadings and point to specific facts which demonstrate that there is a genuine issue of material fact for trial. Celotex Corp., 477 U.S. at 324. An issue is considered "genuine" only if there is a sufficient evidentiary basis such that a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the action under governing law. Id. In adjudicating a Rule 56 motion, we view the underlying facts and all reasonable inferences arising therefrom in the light most favorable to the party opposing the motion—here, the Plaintiff. McCabe, 494 F.3d at 424; Fasold v. Justice, 409 F.3d 178, 180 (3d Cir. 2005).
The Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability ... 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). The Act "forbids employers from discriminating against persons with disabilities in matters of hiring, placement, or advancement." Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir. 1996). To establish a claim for disability discrimination under the Rehab Act, a plaintiff must demonstrate that: (1) she has a disability; (2) she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) she has suffered an otherwise adverse employment decision as a result of discrimination. Williams v. Philadelphia Housing Auth. Police Dept., 380 F.3d 751, 761 (3d Cir. 2004); Donahue v. Consolidated Rail Corp., 224 F.3d 226, 229 (3d Cir. 2000).
Plaintiff claims that the Defendant discriminated against her by failing to make reasonable accommodations for her alleged disability. An employer discriminates against a qualified individual when it fails to make reasonable accommodations to the known physical or mental limitations of such individual unless the employer can demonstrate that such accommodation would impose an undue hardship on the operation of its business. 42 U.S.C. § 12112(b)(5).
Defendant moves for summary judgment on the basis that, inter alia, the Plaintiff's claim is time-barred. The Rehab Act does not specify a governing statute of limitations; therefore, a federal court adopts the statute of limitations of the most analogous state law cause of action. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d254 (1985). In Disabled in Action of Pa. v. SEPTA, 539 F.3d 199, 208 (3d Cir. 2008), the Third Circuit held that Pennsylvania's two-year statute of limitations for personal injury claims applied to claims asserted under the Rehab Act. Plaintiff argues, however, that because her accommodation claim is based on a failure-to-transfer theory, it is subject to the four-year limitations period under 28 U.S.C. § 1658, which provides, in pertinent part:
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 applied a four-year statute of limitations for hostile work environment, wrongful termination and failure-to-transfer claims brought under 42 U.S.C. § 1981. The Supreme Court noted that prior to the 1991 amendment, claims under § 1981 were confined to those based on the formation of a contract, and did not protect against harassing conduct that occurred after the formation of the contract. Id. at 372-73. The 1991 amendment, however, extended protection to claims based on discriminatory treatment after the formation of the contract. Id. at 373. The Supreme Court held that "a cause of action `aris[es] under an Act of Congress enacted' after December 1, 1990—and therefore is governed by§ 1658's 4-year statute of limitation—if the plaintiff's claim against the defendant was made possible by a post-1990 enactment." Id. at 382.
Following Jones, the Third Circuit in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), held that § 1658's four-year statute of limitations applied to a claim of employment discrimination under the Rehab Act based on allegations that the plaintiff's employer failed to transfer her to a different position prior to eliminating her current position. Id. at 206. In Fowler, the plaintiff was injured on the job while employed as a janitor/housekeeper. Id. She was released by her doctor to perform sedentary work, and defendant provided her with a light duty clerical position. Id. The clerical position was subsequently eliminated, and plaintiff alleged that she applied for a telephone operator position, as well as a number of vacant, sedentary jobs, but was never contacted by the defendant regarding any open positions. Id. at 212. She alleged that the defendant terminated her because she was disabled, and discriminated against her by "failing to transfer or otherwise obtain vacant and funded job positions" for her. Id.
The district court applied the two-year statute of limitations and dismissed the plaintiff's case as untimely. Id. In reversing the district court's dismissal, the Third Circuit observed:
Fowler, 578 F.3d at 208 (internal citation and footnote omitted).
Here, the critical questions are whether the Plaintiff's claim is properly viewed as a failure to reasonably accommodate her in her existing CO position, or, whether the record supports the conclusion that it is based on a failure to transfer or reassign her to a vacant position. Plaintiff concedes that if it is the former, the two-year statute of limitations would bar her claim. [ECF No. 66] p. 18. At oral argument, Defendant's counsel articulated the basis for the Defendant's contention that the two-year statute of limitations applies:
[ECF No. 66] pp. 31-32. Plaintiff contends, however, that a transfer or reassignment means "to do anything other than the job you were performing." Id. at pp. 17-18.
We begin by observing that "reassignment to a vacant position" as a form of an accommodation denotes movement to a position different from the position the employee previously held. See, e.g., Smith v. Midland Brake, Inc., 180 F.3d 1154, 1161 (10
An appropriate Order follows.
AND NOW, this 16
IT IS HEREBY ORDERED that the Defendant's Motion for Summary Judgment [ECF No. 40] is GRANTED. JUDGMENT is hereby entered in favor of Defendant, County of Allegheny, PA (Allegheny County Jail), and against Plaintiff, Carmella George.
The clerk is directed to mark the case closed.
