GEORGE v. COUNTY OF ALLEGHENY, PA
Filing
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MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that the Defendant's Motion for Summary Judgment 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. Signed by Chief Judge Sean J. McLaughlin on 8/16/2013. (rlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CARMELLA GEORGE,
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Plaintiff,
v.
COUNTY OF ALLEGHENY, PA
(ALLEGHENY COUNTY JAIL)
Defendant.
Civil Action No. 11-17 Erie
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., Chief 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. 1 and the Family Medical Leave Act, 29 U.S.C. § 2601 et seq.
(“FMLA”). Presently pending before the Court is the Defendant’s Motion for Summary
Judgment [ECF No. 40].2 This Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I.
BACKGROUND
Plaintiff was hired by the Defendant as a Correctional Officer (“CO”) at the Allegheny
County Jail in May 1998. Pl. Ex. 4 ¶ 3.3 The Allegheny County Jail consisted of five levels,
four of which contained inmates. Id. at ¶ 12. Level 1, the main level of the jail, did not house
inmates, but included the reception and visitation areas, as well as the management and
administrative offices. Id. at ¶¶ 11-12. The Job Description for a CO at the Allegheny County
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The Americans with Disabilities Act and the Rehab Act were amended in 2008 by the Americans with Disabilities
Act Amendments Act (“ADAAA”), Pub.L. No. 110-325, 122 Stat. 3553, 3559 (2008), which became effective on
January 1, 2009. The ADAAA does not have retroactive effect, see Weidow v. Scranton School Dist., 460 Fed.
Appx. 181, 185 n.7 (3d Cir. 2012), and in any event, does not impact our analysis.
2
Plaintiff stipulated to the dismissal of her FMLA claim (Count II) in Response to the Defendant’s Motion for
Summary Judgment. [ECF No. 50 n.1]. Accordingly, we shall grant summary judgment as to that claim and
confine our discussion to the Rehab Act claim (Count I).
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Plaintiff’s Exhibits are filed at [ECF No. 50]; Defendant’s Exhibits are filed at [ECF No. 40].
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Jail provided that a CO took “an active role in the daily operations of an inmate housing pod.”
Def. Ex. AA. The regular CO position required frequent inmate contact and the ability to engage
in strenuous physical activity, such as restraining inmates, pursuing fleeing inmates, and
disengaging fights. Id. The record reflects that there were additional modified CO positions
bearing the titles “Corrections Officer-Training Clerk-Modified Duty” and “Corrections OfficerX-Ray Monitor-Modified Duty.” Def. Ex. BB, ¶ 4; Def. Exs. X-Y. The Training ClerkModified Duty CO position was classified as sedentary, and required the CO to answer telephone
calls, file, process new employee identification tags, and copy documents. Def. Ex. X. The XRay Monitor-Modified Duty CO position was classified as light, and required the CO to perform
monitoring and scanning duties while standing at the screen. Def. Ex. Y. Plaintiff, in her
Affidavit, contends that there were other modified CO positions that were of a light duty nature,
including Special Detail, Mezzanine, Classroom and Library. Pl. Ex. 4 ¶ 27.
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
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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 ¶¶ 43-45.4
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.
II.
STANDARD OF REVIEW
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
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Defendant disputes these contentions. According to the Defendant, Plaintiff continued to work until June 26, 2008
when she failed to report to work and called off “sick.” Def. Ex. BB ¶ 14. Thereafter, Plaintiff reported herself as
“sick” on June 27, 2008 and June 28, 2008. Def. Ex. BB ¶ 14. Defendant claims that beginning on June 29, 2008,
Plaintiff stopped calling in, failed to report to work, and never provided a doctor’s excuse. Def. Ex. BB ¶¶ 17-18.
These factual disputes are not material, however, in light of our disposition of the Plaintiff’s claim on timeliness
grounds.
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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).
III.
DISCUSSION
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
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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). 5 “Reasonable accommodation” includes such measures such as “job restructuring,
part-time or modified work schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, … and other similar accommodations for individuals with
disabilities.” 42 U.S.C. § 12111(9)(B).
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:
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 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 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,
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The standards used in determining whether the Rehab Act has been violated are the same as those applied under
Title I of the Americans with Disabilities Act. 29 U.S.C. § 794(d); McDonald v. Pa. Dep’t of Pub. Welfare, 62 F.3d
92, 96 (3d Cir. 1995) (“Whether the suit is filed under the Rehabilitation Act or under the Disabilities Act, the
substantive standards for determining liability are the same.”).
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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 post1990 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:
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. 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. Airling, 480 U.S. 273, 289 n. 19, 107 S.Ct. 1123, 94 L.Ed.2d
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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 whether a covered employer has
engaged in illegal discrimination. This conforming amendment was codified at 29
U.S.C. § 794(d), …. This provision of the Rehabilitation Act was signed into law
on October 29, 1992. The standards for determining whether a covered employer
has violated § 794(d) have been coextensive with the standards for determining
whether a covered employer has violated the ADA ever since. Therefore,
employers who are covered under § 794(a) of the Rehabilitation Act are required
to transfer a disabled employee to vacant positions for which she is qualified
where necessary to accommodate her disability. Since failure-to-transfer claims
can be brought as a result of this statutory amendment—an amendment enacted
after December 1, 1990—they are subject to a four-year limitation of actions.
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:
MS. SCOTT: … Here, all the evidence is, and if you read plaintiff’s
affidavit and you also read the documents that have been supported, the transfer,
the thing that plaintiff is trying to call a transfer, is being assigned as a level one
correctional officer of the first floor of the jail. That’s a correctional officer
position. It’s a position that she did before when she was on a work comp, lightduty assignment. It’s not a transfer to a different position. It doesn’t put her in a
different pay bracket, it doesn’t change anything about her job, except it says you
sit here rather than going into see a jail inmate. So it cannot be a transfer. If this
court were to adopt the interpretation that plaintiff wants, which is basically every
single time you make an accommodation, that’s a transfer, it would undermine the
very meaning of the Rehabilitation Act. Because the Rehabilitation Act has these
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components that say you have to accommodate people first within their own
position if they need an accommodation. And if you’re not able to do that and if
the employee wants to and are willing to, you have to include a request to transfer
to a different position. … [F]rom the record that we have here, this woman was a
correctional officer, she wanted light duty. As a correctional officer, that cannot
be interpreted as a request to transfer.
THE COURT: In broad brush, a failure to accommodate is subject to a
two-year statute of limitations?
MS. SCOTT: A failure to accommodate within that job, such as giving
someone light duty or restricting their contact to inmates, that’s what she asked
for, that has to be a correctional officer position subject to the two-year statute.
[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 (10th Cir. 1999)
(“The term ‘reassignment to a vacant position’ indisputedly indicates more than just an alteration
to the employee’s existing job.”). Here, there is no evidence that the Plaintiff sought to be
reassigned or transferred to a position other than one performed by CO’s. See, e.g., Stine v. Pa.
State Police, 2012 WL 959362 at *5 (M.D.Pa. 2012) (holding that the two-year statute of
limitations applied to the plaintiff’s Rehab Act claim, since the plaintiff did not request the
accommodation of a transfer, finding that “[t]he focus of his request was help in performing his
current and future jobs, not a transfer in and of itself”). Because Plaintiff’s claim, properly
characterized as a failure to accommodate her in her existing CO position, was actionable under
the original version of the Rehab Act, the four-year statute of limitations set forth in 28 U.S.C. §
1658 does not apply, and Plaintiff’s claim is subject to the two-year statute of limitations. It is
undisputed that Plaintiff was terminated on September 16, 2008. The instant action was not filed
until January 20, 2011. Accordingly, her claim is untimely and Defendant is entitled to summary
judgment.
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IV.
CONCLUSION
An appropriate Order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CARMELLA GEORGE,
Plaintiff,
v.
COUNTY OF ALLEGHENY, PA
(ALLEGHENY COUNTY JAIL)
Defendant.
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Civil Action No. 11-17 Erie
ORDER
AND NOW, this 16th day of August, 2013, and for the reasons set forth in the
accompanying Memorandum Opinion,
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.
s/ Sean J. McLaughlin
Chief United States District Judge
cm:
All parties of record
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