                                                                                                                           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Precedential or Non-Precedential: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.




                                2
            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


                                 3
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

                                  4
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.



                                5
          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



                                  6
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

                                  7
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


                                  9
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

                                10
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.




                                 11
