1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"McDonald v Comm of PA" (1995). 1995 Decisions. Paper 208.

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1 

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
2 

____________ 

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. 
3 

 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 
4 

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 
5 

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. 
6 

 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 
7 

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 
8 

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 
9 

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 
10 

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 
11 

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.