Howard Aubrey v. City of Bethlehem Fire Dept

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1767
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HOWARD AUBREY,
Appellant
v.
CITY OF BETHLEHEM, FIRE DEPARTMENT,
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 5:10-cv-1604)
District Judge: Honorable Lawrence F. Stengel
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Submitted Under Third Circuit LAR 34.1(a)
October 28, 2011
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Before: SLOVITER, GREENAWAY, JR., and ALDISERT, Circuit Judges.
(Opinion Filed: March 6, 2012)
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OPINION
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GREENAWAY, JR., Circuit Judge.
Appellant Howard Aubrey (“Aubrey”) seeks reversal of the District Court’s
decision to grant a motion to dismiss in favor of Appellee City of Bethlehem, Fire
Department (“Bethlehem”). For the reasons stated herein, we will affirm the District
Court’s Order.
I. BACKGROUND
Because we write primarily for the benefit of the parties, we recount only the
essential facts.
Aubrey worked as a firefighter in Bethlehem, Pennsylvania. In June 2006, he
began receiving treatment for depression, suicidal ideation and substance abuse. He was
later diagnosed with Post Traumatic Stress Disorder (“PTSD”). 1 In January 2007, while
on a leave of absence for his medical condition, Aubrey applied for a fire inspector
position with the Bethlehem Fire Department. He was denied the position.
Aubrey remained on leave after being denied the fire inspector position – first
using his regular accrued leave, then exercising his right to twelve weeks of leave under
the Family Medical Leave Act (“FMLA”). The record indicates that he received an
independent medical examination confirming his PTSD diagnosis and other evaluations
stating that he was unable to return to work as a firefighter. It also shows that while on
1
Aubrey’s amended complaint states that he was diagnosed with “Post Traumatic
Syndrome.” App. 24. However, a review of the record indicates that he was being
treated for Post Traumatic Stress Disorder. See e.g., App. 153, 158, 172.
2
leave he corresponded with Bethlehem regarding his condition, his plans to return to
work (including his rejection of offers to perform light duty functions), and his need to
obtain medical clearance before returning to the Bethlehem Fire Department. Aubrey
exhausted his approved leave on December 19, 2007, and never returned to work. He
alleges that the tolling of the statute of limitations should be delayed because he
continued receiving pay stubs without income until an unspecified date in 2008 and
remained an active member of the union until retiring in February 2010.
After filing a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on May 8, 2009, Aubrey filed an action for employment
discrimination, alleging that Bethlehem violated the Americans with Disabilities Act
(“ADA”) by not allowing him to return to work and by failing to provide him with a
reasonable accommodation. Aubrey also alleged that he was discriminated against on the
basis of his disability in violation of the Pennsylvania Human Relations Act.
Bethlehem filed a motion to dismiss Aubrey’s claims under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, alleging that Aubrey failed to file a Charge of
Discrimination with the EEOC within 300 days of the alleged discriminatory act. After
finding that the amended complaint lacked relevant information and was substantively
difficult to discern, the District Court asked the parties to conduct limited discovery and
submit supplemental briefs to assist the Court in determining whether Aubrey’s
3
discrimination claim was timely. Specifically, the Court sought more information about
the date on which the alleged discriminatory act occurred.
During the limited discovery process, the District Court conducted two
conferences with the parties and provided a clear timeframe during which Aubrey could
respond to the discovery materials produced by Bethlehem. After conducting limited
discovery and considering the supplemental written filings, the District Court granted
Bethlehem’s motion and dismissed the action.2 Aubrey now appeals the District Court’s
Order granting dismissal.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had original jurisdiction, pursuant to 28 U.S.C. § 1331. We
have appellate jurisdiction, pursuant to 28 U.S.C. § 1291.
We exercise plenary review over a district court’s grant of a motion to dismiss,
pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. Grier v.
Klem, 591 F.3d 672, 676 (3d Cir. 2010). “In deciding a motion to dismiss, all well-
pleaded allegations of the complaint must be taken as true and interpreted in the light
most favorable to the plaintiffs, and all inferences must be drawn in favor of them.”
McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (internal quotation marks and
2
In deciding the Rule 12(b)(6) motion, the District Court considered the amended
complaint, Aubrey’s deposition, Fire Commissioner George Barkanic’s deposition,
Human Resources Director Jean Zweifel’s deposition and any written briefing materials
and accompanying exhibits regarding the motion to dismiss or the issue of untimeliness.
4
citation omitted). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, ---, 129 S. Ct. 1937, 1949 (2009)
(internal quotation marks and citation omitted).
III. ANALYSIS
Aubrey alleges that the District Court committed reversible error by considering
documents, other than those permissible under Rule 12(b)(6), in its disposition of
Bethlehem’s motion to dismiss. Aubrey argues that this procedural error improperly
converted the motion to one seeking summary judgment. He also argues that the District
Court erred in granting the motion on the basis of untimeliness. Because we find no such
error in the District Court’s determinations, we will affirm.
“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, matters of public record, as well as undisputedly
authentic documents if the complainant’s claims are based upon these documents.”
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citation omitted). If the court
considers other matters outside of the pleading, the motion is to be treated as one for
summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 12(b)(6). The district court, prior to converting a Rule 12(b)(6) motion to
a motion for summary judgment, must provide the parties with “an opportunity to submit
materials admissible in a summary judgment proceeding.” Ford Motor Co. v. Summit
5
Motor Prods., Inc., 930 F.2d 277, 284 (3d Cir. 1991) (quoting Rose v. Bartel, 871 F.2d
331, 342 (3d Cir. 1989)). A district court’s failure to provide such opportunity
constitutes reversible error. Id. If notice is not given but the error is harmless, reversal is
not required. Id. at 284-85 (citing Rose, 871 F.2d at 342).
Aubrey relies on Ford and Rose in arguing that the District Court committed
reversible error by converting the motion to dismiss without notice; however, we find no
such error.3 The issue of timeliness is treated as a statute of limitations question. See
Burgh v. Borough Council, 251 F.3d 465, 470 (3d Cir. 2001). Here, the District Court
explicitly sought limited discovery on the timeliness issue after concluding that the
amended complaint was difficult to decipher. In adjudicating the motion to dismiss, it
used the limited discovery information solely for the purpose of clarifying the timeframe
of the action. After doing so, the District Court concluded that the amended complaint
was untimely because it “d[id] not contain specific allegations of disability-based
employment discrimination within the period beginning July 11, 2008 and ending May 8,
2009.”
3
Even if the motion were converted to one seeking summary judgment, the parties had
ample notice of the alleged conversion based on the District Court’s communications
with the parties. See Rose, 871 F.2d at 342 (stating that a court need not issue an order
expressly notifying the parties that it is converting a motion to dismiss into one seeking
summary judgment “so long as [it] otherwise fairly apprises the parties of the proposed
conversion”).
6
This conclusion falls squarely within the domain of Rule 12(b)(6), as it concerns
only the legal question of whether the claim was filed within the applicable statute of
limitations. Compare Iqbal, 129 S. Ct. at 1949 (stating the rule and standard for a motion
to dismiss for failure to state a claim), with Fed. R. Civ. P. 56 (“[T]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact . . . .”); see also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1384 n.1 (3d Cir. 1994) (stating that a statute of limitations defense can be used in
the context of a Rule 12(b)(6) motion where “the complaint facially shows
noncompliance with the limitations period and the affirmative defense clearly appears on
the face of the pleading”). For these reasons, we find that the District Court did not err in
using limited discovery materials to construe Aubrey’s claims on his motion to dismiss.
Second, Aubrey asserts that the District Court erred in granting the motion to
dismiss for untimeliness given the lack of clarity as to when his employment actually
ended. In order for Aubrey’s claims to be timely, the alleged unlawful employment
practice would have needed to occur and to have been communicated to him on or after
July 11, 2008, i.e., within 300 days prior to filing his May 8, 2009, Charge of
Discrimination with the EEOC. 4 See 42 U.S.C. § 2000e-5(e)(1); Callowhill v. Allen-
4
Title 42 U.S.C. § 2000e-5(e)(1) states:
A charge under this section shall be filed within one hundred and eighty
days after the alleged unlawful employment practice occurred [. . .] except
7
Sherman-Hoff Co., 832 F.2d 269, 271 (3d Cir. 1987) (“In a state such as Pennsylvania
which has an agency performing functions similar to those of the EEOC, the time for
filing is extended to 300 days . . . .”). Aubrey argues that his claims fall within the 300-
day statute of limitations because Bethlehem never actually “terminated” him, an action
that Aubrey alleges is required to trigger the tolling of the statute of limitations. This
Court finds no precedent to suggest that the date of termination marks the tolling of the
statute of limitations in an ADA case, absent an assertion that the termination itself was
the discriminatory act. The amended complaint makes no such assertion. Instead, it
focuses on the failure to promote Aubrey to fire inspector and an alleged failure to
accommodate. The record indicates that Aubrey was not physically present at work after
June 2006, was denied the fire inspector’s position in January 2007, and exhausted his
that in a case of an unlawful employment practice with respect to which the
person aggrieved has initially instituted proceedings with a State or local
agency with authority to grant or seek relief from such practice or to
institute criminal proceedings with respect thereto upon receiving notice
thereof, such charge shall be filed by or on behalf of the person aggrieved
within three hundred days after the alleged unlawful employment practice
occurred, or within thirty days after receiving notice that the State or local
agency has terminated the proceedings under the State or local law,
whichever is earlier, and a copy of such charge shall be filed by the
Commission with the State or local agency.
(emphasis added).
8
FMLA leave in December 2007. Each of these junctures in time fall outside of the 300-
day statute of limitations. These facts support dismissal for untimeliness.
Aubrey avers that his claims should survive the statute of limitations bar because
Bethlehem’s acts constituted discrimination of a continuing nature. Conceptually, the
continuing violation doctrine “allows courts to consider conduct that would ordinarily be
time barred as long as the untimely incidents represent an ongoing unlawful employment
practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107 (2002) (internal
quotation marks and citation omitted). However, the Supreme Court has explicitly
rejected the use of this doctrine to preserve time barred claims for discrete discriminatory
acts. Id. at 113 (“[D]iscrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges . . . [E]ach discrete
discriminatory act starts a new clock for filing charges alleging that act.”); see O’Connor
v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (classifying termination, failure to
promote and denial of transfer as examples of discrete acts that must occur within the
statute of limitations). The nature of Aubrey’s claims do not involve repeated conduct.
See Morgan, 536 U.S. at 115. Therefore, the continuing violation doctrine does not
preserve his time barred claims.
9
Similarly, Aubrey asserts that Bethlehem engaged in an unlawful employment
practice that continued until March 2010 5 by failing to engage in an “interactive process”
to determine when and under what conditions he could return to work. Under the ADA,
we construe this allegation as a failure to accommodate:
To establish a prima facie case of discrimination under the ADA, a
plaintiff must show, inter alia, that she is otherwise qualified to perform the
essential functions of the job, with or without reasonable accommodations
by the employer. Adverse employment decisions in this context include
refusing to make reasonable accommodations for a plaintiff’s disabilities.
The term [r]easonable accommodation further includes the employer’s
reasonable efforts to assist the employee and to communicate with the
employee in good faith[.]
Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010) (internal quotations and
citations omitted). Aubrey’s claims fail for numerous reasons. The documents presented
in this case indicate that Bethlehem communicated with Aubrey on multiple occasions
regarding his intention to return to work. Bethlehem also wrote letters requesting
clarifications in the medical opinions submitted on his behalf and attempting to arrange
an interview to review his case. Additionally, the limited discovery revealed that Aubrey
5
Aubrey refers to March 2010 as the date in which his employment ended. He bases this
reference on an assertion that his employment did not end until he started collecting his
pension in March 2010. We reject the use of March 2010 as a marker for the end of
Aubrey’s employment. Aubrey’s FMLA leave expired in December 2007, and he had
not notified Bethlehem of an intent to return to work nor had he provided a medical
clearance indicating that he could return to work. For the purpose of this analysis, we
consider Aubrey’s separation to have occurred once he failed to return to work after
exhausting his FMLA leave.
10
rejected offers to perform light duty employment and did not obtain medical clearance to
return to work. In light of these facts, Aubrey’s assertion that Bethlehem failed to engage
in an interactive process lacks merit and does not excuse his failure to file this action
within the required statute of limitations.
Finally, Aubrey’s attempt to revive his claim using the Lilly Ledbetter Fair Pay
Act (“Ledbetter Act”), alleging that his inability to continue working for Bethlehem
deprived him of an opportunity to accrue greater pension benefits, must also fail. See 42
U.S.C. § 2000e-5(e)(3)(A).6 We have previously held that the Ledbetter Act does not
apply, and therefore cannot excuse a time barred claim, when a plaintiff has not alleged
wage discrimination. See Noel v. Boeing Co., 622 F.3d 266, 272-73 (3d Cir. 2010) (“In
our view, Congress’ motivation for enacting the [Ledbetter Act] was to overturn the
perceived harshness of Ledbetter [v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618(2007)] and to provide greater protection against wage discrimination but not other types
of employment discrimination.”). Aubrey’s amended complaint makes no allegation of
6
The Ledbetter Act expanded Title VII claims to include compensation discrimination:
For purposes of this section, an unlawful employment practice occurs, with
respect to discrimination in compensation in violation of this subchapter,
when a discriminatory compensation decision or other practice is adopted,
when an individual becomes subject to a discriminatory compensation
decision or other practice, or when an individual is affected by application
of a discriminatory compensation decision or other practice, including each
time wages, benefits, or other compensation is paid, resulting in whole or
in part from such a decision or other practice.
42 U.S.C. § 2000e-5(e)(3)(A) (emphasis added).
11
wage discrimination. While some of his written filings before the District Court and this
Court reference a reduction in pension benefits as a result of Bethlehem’s alleged
discriminatory acts, we construe such arguments as alleging injury resulting from other
discrimination claims as opposed to a specific claim of discrimination in compensation.
See Noel, 622 F.3d at 275 (“We recognize that many employment-related decisions, not
simply pay-setting decisions, ultimately have some effect on compensation. But to
include these myriad employment decisions within the ‘other practice’ language of the
[Ledbetter Act] would weaken Title VII's administrative exhaustion requirement.”).
Consequently, Aubrey’s claims fall outside the ambit of the Ledbetter Act.
IV. CONCLUSION
We find that the District Court committed no error in dismissing Aubrey’s claims
under Rule 12(b)(6) of the Federal Rules of Civil Procedure for lack of timeliness. For
the reasons stated above, we will affirm the District Court’s Order.
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