McDonald v. Comm of PA ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-4-1995
McDonald v Comm of PA
Precedential or Non-Precedential:
Docket 95-3005
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 95-3005
____________
BONITA McDONALD,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF
PUBLIC WELFARE, POLK CENTER,
Appellee
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 94-cv-00009E)
____________
Submitted Pursuant to Third Circuit Rule LAR 34.1(a)
June 30, 1995
Before: HUTCHINSON, ROTH, and WEIS, Circuit Judges
(Opinion filed August 4, 1995)
____________
Michael L. Rosenfield, Esquire
1808 Law & Finance Building
Pittsburgh, PA 15219
Attorney for Appellant
Gloria A. Tischuk, Esquire
Deputy Attorney General
Calvin R. Koons, Esquire
Senior Deputy Attorney General
John G. Knorr, III, Esquire
Chief Deputy Attorney General
Chief, Litigation Section
OFFICE OF ATTORNEY GENERAL
4th Floor, Manor Complex
564 Forbes Avenue
Pittsburgh, PA 15219
Attorneys for Appellee
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____________
OPINION OF THE COURT
____________
WEIS, Circuit Judge.
Plaintiff alleges a discriminatory discharge from
employment caused by her inability to work for about two months
while recuperating from surgery. The district court concluded
that the complaint failed to state a claim under the Americans
With Disabilities Act and the Rehabilitation Act. We agree and
will affirm.
The relevant facts are those alleged in the plaintiff's
complaint. On September 8, 1992, plaintiff was hired as a charge
nurse at the Polk Center in Venango County, a residential
institution for the mentally retarded operated by the
Pennsylvania Department of Public Welfare. On December 24, 1992,
during working hours, plaintiff became disabled because of severe
abdominal pain. She was admitted to a hospital on the following
day and underwent surgery on December 31, 1992.
On January 14, 1993, plaintiff requested that she be
placed on unpaid sick leave until February 14, 1993, after which
her physician reported that she could return to work. Polk
Center denied her request because she was still a probationary
employee and, under the terms of the collective bargaining
agreement, was not eligible for extended sick leave. Because she
was unable to attend to her duties, the Center discharged
plaintiff as of December 31, 1992.
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Plaintiff filed claims with the Pennsylvania Human
Relations Commission and the EEOC, asserting that Polk Center had
discriminated against her because of the disability resulting
from her surgery. In due course, the EEOC issued a right to sue
letter and plaintiff filed her complaint in the district court
alleging that the defendant had violated the Americans With
Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213, the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701-797(b), and the
Pennsylvania Human Relations Act, Pa. Stat. Ann. tit. 43,
§§ 951-963.
Defendant filed a motion to dismiss under Fed. R. Civ.
P. 12(b)(6), asserting that the complaint failed to state a
claim. Granting the defendant's motion, the district court
dismissed the federal counts with prejudice and declined to
exercise supplemental jurisdiction over the state law cause of
action.
The district court reasoned that the Disabilities and
Rehabilitation Acts did not apply to the transitory disability
that plaintiff had suffered, and that she was not "otherwise
qualified" to work during the period in question. As an
alternative holding, the court concluded that plaintiff was
discharged because of her probationary employee status and that
the Disabilities and Rehabilitation Acts hence were not
applicable.
In an appeal from an order dismissing a complaint for
failure to state a claim, we accept as true the facts alleged in
the complaint and all reasonable inferences that can be drawn
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from them. Our scope of review is plenary. Unger v. National
Residents Matching Program, 928 F.2d 1392, 1394 (3d Cir. 1991).
Plaintiff did not seek to amend her complaint and does not
request that relief on this appeal. See id. at 1401.
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,
has been termed "the civil rights bill of the disabled."
Americans Disabled For Accessible Pub. Transp. (ADAPT) v.
Skinner, 881 F.2d 1184, 1187 (3d Cir. 1989) (en banc). The
statutory language and the regulations adopted to implement the
legislation have proved to be ambiguous and, as such, fruitful
sources of litigation. See Disabled in Action of Pennsylvania v.
Sykes, 833 F.2d 1113, 1117 (3d Cir. 1987).
Partially because it recognized the problems caused by
inconsistent interpretations of the Rehabilitation Act, and
intending to broaden coverage, Congress in 1990 enacted the
Disabilities Act. We reviewed the tortuous path of this
legislation in Helen L. v. DiDario, 46 F.3d 325, 330-31 (3d Cir.
1995), petition for cert. filed sub. nom. Pennsylvania Secretary
of Pub. Welfare v. Idell S., 63 U.S.L.W. 3861 (U.S. May 25, 1995)
(No. 94-1946), and need not repeat that discussion here. Further
amplification may be found in the legislative history reported in
1990 U.S.C.C.A.N. 267-602, in S. Rep. No. 116, 101st Sess.
(1989), and in a series of articles published in Volume 64,
Number 2 of the Temple Law Review.
These sources provide a helpful background for
appreciating the purpose of the legislation. However, they do
not discuss the precise issue presented by this case -- whether a
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disabling, but transitory, physical or mental condition is within
the ambit of the Disabilities and Rehabilitation Acts.
Congress made clear its intention that identical
standards were to be applied to both Acts. 42 U.S.C. § 12117(b)
provided that enforcement agencies were to develop procedures to
ensure that complaints are resolved in the same manner so as to
avoid duplication of effort and imposition of inconsistent or
conflicting standards under the Disabilities and Rehabilitation
Acts. Whether suit is filed under the Rehabilitation Act or
under the Disabilities Act, the substantive standards for
determining liability are the same. Myers v. Hose, 50 F.3d 278,
281 (4th Cir. 1995).
The legislative history demonstrates that the
congressional committees drafting the Disabilities Act were
conversant with regulations previously adopted to implement
section 504 of the Rehabilitation Act. Indeed, in certain
aspects the committee reports borrowed language from some of
these regulations in explaining the meaning of the proposed
Disabilities Act. See, e.g., H.R. Rep. No. 485(II), 101st Cong.,
2d Sess. 50-52, 55 (1990), reprinted in 1990 U.S.C.C.A.N. 303,
332-34, 337; Senate Report 116, supra at 21, 22. Consequently,
the regulations so utilized have more than usual force in
providing guidance for interpretation of the Act. The
Committee's use of those regulations as they applied to the
Rehabilitation Act in a sense assimilated them as a means of
understanding the Disabilities Act.
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The Rehabilitation Act provides that anyone receiving
federal funds may not discriminate against an "otherwise
qualified individual with a disability." 29 U.S.C. § 794(a). The
Disabilities Act prohibits discrimination in employment "against
a qualified individual with a disability because of the
disability . . . ." 42 U.S.C. § 12112(a).
The two statutes have closely parallel definitions of
disability. The Rehabilitation Act terms an individual with a
disability as one who "has a physical or mental impairment which
substantially limits one or more of such person's major life
activities." 29 U.S.C. § 706(8)(B). Under the Disabilities Act,
a disability is "a physical or mental impairment that
substantially limits one or more of the major life activities of
such individual." 42 U.S.C. § 12102(2).
29 C.F.R. § 1630.2(i) includes "working" as a major
life activity. Section 1630.2(j)(2) lists several factors to be
considered "in determining whether an individual is substantially
limited in a major life activity," including:
"(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the
impairment; and
(iii) The permanent or long term impact, or the
expected permanent or long term impact of or
resulting from the impairment."
By way of illustration, the EEOC's "interpretative
guidance" in the appendix to the regulation points out that a
broken leg that takes eight weeks to heal is an impairment of
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fairly brief duration. "[T]emporary, non-chronic impairments of
short duration, with little or no long term or permanent impact,
are usually not disabilities. Such limitations may include . . .
broken limbs, . . . appendicitis, and influenza." 29 C.F.R. pt.
1630 app.
Similar regulations, promulgated pursuant to the
Rehabilitation Act and in effect before the enactment of the
Disabilities Act, may be found in 45 C.F.R. § 84.3(j); 45 C.F.R.
pt. 84 app. A; 34 C.F.R. § 104.3; 34 C.F.R. pt. 104 app. A.
The Report of the Senate Committee on Labor and Human
Resources states that: "Persons with minor, trivial impairments,
such as a simple infected finger are not impaired in a major life
activity." Senate Report 116, supra at 23. See also House
Report 485(II), supra at 52.
In Bolton v. Scrivner, Inc., 36 F.3d 939, 943 (10th
Cir. 1994), the Court of Appeals concluded that the legislative
history of the ADA demonstrates that Congress intended that the
caselaw developed under the Rehabilitation Act be generally
applicable to the term `disability' as used in the Disabilities
Act. See also Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d
538, 542 (7th Cir. 1995).
An example of that guidance is found in Evans v. City
of Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988), where a worker
discharged after excessive absenteeism attributable to a knee
injury that required surgery was held not to be "disabled" within
the terms of the Rehabilitation Act. The Court of Appeals
concluded that the Act contemplates an impairment of a permanent
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nature. Id. at 853. Similarly, the Court in Vande Zande, 44
F.3d at 544, applying the Disabilities Act, commented:
"Intermittent, episodic impairments are not disabilities, the
standard example being a broken leg." See also de la Torres v.
Bolger, 781 F.2d 1134, 1137 (5th Cir. 1986); Stevens v. Stubbs,
576 F. Supp. 1409, 1414 (N.D. Ga. 1983).
Against this background of applicable law, it is clear
that the plaintiff in the case before us cannot qualify for
relief under the Disabilities Act or the Rehabilitation Act. As
the complaint reveals, her inability to work caused by the
surgery was of limited duration. She entered the hospital on
December 25, 1992, and would have been able to return to her
duties at Polk on February 15, 1993, a period of less than two
months. Although she was incapacitated for these weeks, her
inability to work was not permanent, nor for such an extended
time as to be of the type contemplated by the statutes she cites.
To apply the Rehabilitation and Disabilities Acts to
circumstances such as those presented here would be a massive
expansion of the legislation and far beyond what Congress
intended. In the absence of statutory language, or even
legislative history, indicating that the Acts are to cover an
impairment of such limited duration, and not within the general
concept of handicap, we cannot conclude that plaintiff was
entitled to the benefits of the legislation.
As an alternative ground for dismissal, the district
court decided that plaintiff was not "otherwise qualified."
Plaintiff argues that "with accommodation" in the form of a leave
8
without pay, she would have been qualified. However, because
plaintiff was not "disabled" as that condition is contemplated by
the Rehabilitation and Disabilities Acts, Polk was not required
to provide accommodation.
This conclusion is consistent with the statute's
language and case law. The Rehabilitation Act bars
discrimination against "otherwise qualified individuals," but
does not define that phrase. The Supreme Court, however, has
provided guidance. In Southeastern Community College v. Davis,
442 U.S. 397, 406 (1979), the Court said: "An otherwise
qualified person is one who is able to meet all of a program's
requirements in spite of [her] handicap." In another case, the
Court noted: "In the employment context, an otherwise qualified
person is one who can perform `the essential functions' of the
job in question." School Bd. of Nassau County, Fla. v. Arline,
480 U.S. 273, 287 n.17 (1987).
The Disabilities Act defines "a qualified individual
with a disability" as a person "who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires."
42 U.S.C. § 12111(8).
Some cases have held that in certain situations an
employer may be required to grant extended leave without pay to
disabled employees. See Fuller v. Frank, 916 F.2d 558 (9th Cir.
1990) (alcoholic federal employee); Rodgers v. Lehman, 869 F.2d
253 (4th Cir. 1989) (same); Kimbro v. Atlantic Richfield Co., 889
F.2d 869 (9th Cir. 1989) (analogous state statute). Rodgers and
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Fuller were cases covered by regulations promulgated under
section 501(b) of the Rehabilitation Act, which requires federal
agencies to adopt affirmative action programs for the disabled.
See Fuller, 916 F.2d at 561 & n.3. Moreover, in Fuller, the
Court assumed arguendo that the employee was otherwise qualified.
Id. at 561 n.5. See also House Report 485(II), supra at 63; 29
C.F.R. pt. 32 app. A (Department of Labor suggestions: 29 C.F.R.
pt. 1630 app. (EEOC "interpretive guidance").
On the other hand, several courts have held that an
employee with a history of sporadic, unpredictable absences may
not be "otherwise qualified." Tyndall v. National Educ. Ctrs.,
Inc. of Cal., 31 F.3d 209 (4th Cir. 1994); Carr v. Reno, 23 F.3d
525 (D.C. Cir. 1994); Jackson v. Veterans Admin., 22 F.3d 277(11th Cir. 1994), cert. dismissed, 115 S. Ct. 657 (1994); Magel
v. Federal Reserve Bank of Phila., 776 F. Supp. 200 (E.D. Pa.
1991), aff'd 5 F.3d 1490 (3d Cir. 1993); Santiago v. Temple
Univ., 739 F. Supp. 974 (E.D. Pa. 1990), aff'd, 928 F.2d 396 (3d
Cir. 1991).
In Myers, 50 F.3d at 283, a case involving a county
employee, the Court pointed out that an employer is not required
to wait for an indefinite period to determine if an accommodation
is achieving its intended effect. "[R]easonable accommodation is
by its terms most logically construed as that which presently, or
in the immediate future, enables the employee to perform the
essential functions of the job in question." Id.Although some case law might support the plaintiff's
position that an unpaid leave of absence is an appropriate
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accommodation in some circumstances, it does not aid her here
because she fails to meet the threshold test of disability. The
Rehabilitation Act and the Disabilities Act do not apply to the
transient, nonpermanent condition that she experienced, and
consequently, the notion of accommodation under the statutes does
not come into play. We, therefore, do not decide that issue.
Accordingly, the judgment of the district court will be
affirmed.
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