                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-19-2005

Douris v. Bucks
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1362




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Recommended Citation
"Douris v. Bucks" (2005). 2005 Decisions. Paper 675.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/675


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DPS-281                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 05-1362
                                    _____________

                             JAMES GEORGE DOURIS,

                                                     Appellant

                                           v.

 BUCKS COUNTY; BUCKS COUNTY OFFICE OF THE DISTRICT ATTORNEY;
DIANE E. GIBBONS; BUCKS COUNTY OFFICE HUMAN RESOURCE; CARMEN
    G. THOME; DOYLESTOWN BOROUGH INC.; MAYOR DOYLESTOWN
   BOROUGH INC.; MONTGOMERY MCCRACKEN WALKER & RHOADS;
BALLARD SPAHR ANDREWS & INGERSOLL; FRANK A. CHERNAK; ARLENE J.
ANGELO, All sued individually and in their official capacity, held jointly and severally
                                      liable
                          ______________________

                   On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                           (E.D. Pa. Civ. No. 04-cv-00232)
                    District Judge: Honorable R. Barclay Surrick
                             ________________________


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   June 16, 2005

              Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES

                                (Filed August 19, 2005)

                                __________________

                                     OPINION
                                __________________
PER CURIAM

       James Douris, proceeding pro se, appeals an order of the United States District

Court for the Eastern District of Pennsylvania dismissing his disability discrimination

action. We will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).

       Douris alleges that he called the Bucks County Office of Human Resources and

requested an employment application for an Accounting Assistant position. A Bucks

County employee asked him why he needed the application sent to him in the mail.

Approximately two months later, having not received an application, Douris went to the

office. Douris alleges the Human Resources Director asked a security officer to limit his

access to the building, and called the Doylestown police to escort him out. Douris

ultimately obtained an application, but did not apply for the position.

       Douris, who uses a wheelchair and has arthritis and other ailments, filed suit in

District Court against Bucks County, Doylestown Borough, their employees and others,

claiming discrimination based upon his disabilities under federal and state law, and

violations of his constitutional rights.1 The defendants moved to dismiss the complaint.

The District Court improperly converted the motions to dismiss into summary judgment

motions, and considered documents submitted by Douris, without providing the parties

notice of its intent to do so. See In re: Rockefeller Ctr. Properties, Inc. Sec. Litig., 184




   1
    Douris has filed numerous lawsuits against Bucks County raising discrimination
claims.

                                               2
F.3d 280, 287-88 (3d Cir. 1999). This error, however, was harmless because, as

discussed below, Douris’ complaint would not have survived a motion to dismiss. See id.

at 289.

          A plaintiff must suffer an adverse employment action because of a disability to

make out a prima facie case under Title I of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12111-12117. Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d

Cir. 1998) (en banc). Many of Douris’ claims fail because he never applied for the

Accounting Assistant position, and did not suffer an adverse employment action.

          Douris claims that a Bucks County employee made an improper disability inquiry

by asking him why he needed an employment application sent to him in the mail. To the

extent this question may be found to violate the statute,2 Douris does not allege any

injury. See also Tice v. Centre Area Transp. Auth., 247 F.3d 506, 520 (3d Cir. 2001)

(noting that in the absence of injury, no claim can lie for a violation of § 12112(d)).

Similarly, Douris alleges that the Accounting Assistant job description improperly

requires an applicant to perform various physical activities, and that if he pursued the

job, the Borough of Doylestown would ticket him when he parked because he is unable to

put coins in the meters due to his disability. Because Douris never applied for the

position, he fails to state claims for relief based upon these allegations. For the same



   2
   The ADA prohibits employers from making “inquiries of a job applicant as to
whether such applicant is an individual with a disability or as to the nature or severity of
such disability.” 42 U.S.C. § 12112(d)(2)(A).

                                               3
reason, Douris’ claims that Bucks County is obligated to hire veterans like himself first,

and to accommodate veterans’ disabilities, fail.3

       Douris also claims that the Bucks County defendants violated the ADA by failing

to post a notice informing job applicants that they may file an administrative charge with

the Equal Employment Opportunity Commission. Even assuming Douris has a cause of

action for such a failure, as noted by the District Court, any improper posting did not

prevent Douris from filing a timely administrative complaint.

       Douris also alleges that the Bucks County Office of Human Resources is not

accessible because it does not have a bidet in the restroom, and because he had to wait ten

minutes to enter the building because the handicapped entrance was locked. We agree

with the District Court that the ADA does not require the provision of a bidet, see 28

C.F.R. § 35.150(a)(3) (providing public entities need not take action that would result in

undue financial and administrative burdens), and that Douris fails to state a claim under

the ADA based upon the brief delay in entering the building.4

       Finally, Douris’ allegation that he was escorted from the municipal building is

insufficient to state a constitutional violation. Absent a violation of his statutory or


   3
    Although Douris attached to his complaint an administrative ruling that Bucks
County’s job description does not comply with the ADA, absent an adverse employment
action because of a disability, Douris does not establish a prima facie case of
discrimination.
   4
    Douris also fails to state a claim under the Pennsylvania Human Relations Act based
upon these allegations. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)
(stating PHRA claims were properly treated as coextensive with ADA claims).

                                               4
constitutional rights, Douris does not have a cause of action under § 1983. Allowing

Douris to amend his complaint would be futile. See Grayson v. Mayview State Hosp.,

293 F.3d 103, 114 (3d Cir. 2002). Accordingly, we will dismiss this appeal as frivolous

pursuant to 28 U.S.C. § 1915(e)(2)(B).




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