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Fowler v. UPMC Shadyside

October 19, 2007

BARBARA FOWLER INDIVIDUALLY, AND ON BEHALF OF A GROUP OF SIMILARLY SITUATED INDIVIDUALS, PLAINTIFF,
v.
UPMC SHADYSIDE, UPMC DOING BUSINESS AS UNIVERSITY OF PITTSBURGH MEDICAL CENTER, DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION (RE: MOTION TO DISMISS - DOC. NO. 4)

A. General Background

Plaintiff, in her individual capacity and on behalf of a claimed group of similarly situated individuals, filed a Complaint against Defendants ("Shadyside Hospital") setting forth a claim of alleged discrimination under the Rehabilitation Act of 1973, 29 U.S.C. § 294, et seq. ("Rehabilitation Act"). She contends that Defendants unlawfully discriminated against her (in her employment as a housekeeper) because, she allegedly was disabled, was regarded by Defendants as disabled, or had a record of disability with the meaning of the Rehabilitation Act.

In particular, Plaintiff claims that she sustained an injury in April of 2002 and was placed on leave under the Family Medical Leave Act ("FMLA") followed by short-term disability ("STD"); that in October or November of 2002, she was released by her doctor to perform sedentary work; that in November of 2002, she was provided with a light-duty clerical position at Shadyside; that on or about October 29, 2003, the light-duty clerical position was eliminated; that on September 24, 2003, her employment was terminated; that, prior to the elimination of her light-duty clerical position, she had applied for another position, but was never contacted by UPMC with regard to that inquiry; and that following her termination, on or about October 23, 2003, and on March 31, 2004, she contacted Shadyside regarding "a number of vacant sedentary jobs", but that she was never contacted regarding any open positions.

B. Case History

Although the Complaint in this action was filed on June 14, 2007, Plaintiff asserts that her claims in this Court against these Defendants were first asserted on October 25, 2006 by the filing of an Amended Complaint in the action of Tish v. Magee Womens Hospital of the University of Pittsburgh Medical Center, No. 06-cv-820 (W.D. Pa. filed June 21, 2006). Previously, Ms. Tish, attempted to join the action of Bolden v. Magee Womens Hospital of University of Pittsburgh Medical Center, No. 05-cv-1063 (W.D. Pa. filed August 1, 2005). In the Bolden case, the Plaintiff therein filed a motion to amend the complaint seeking leave to add Ms. Tish as an additional named plaintiff, and "to include class action allegations asserting that the defendant has a pattern or practice of failing to transfer employees on disability leave in violation of the Americans with Disabilities Act and the Rehabilitation Act." However, by Order dated June 13, 2006, the Honorable Terrence F. McVerry of this Court denied said Motion and directed that, "The claims of Valentina Tish, as well as the claims of any other potential plaintiffs who allegedly suffered a similar sort of wrong, should be filed as individual cases, and not as a class action."

At a Status Conference held on August 11, 2006, Judge McVerry permitted the Plaintiff in the Bolden case to request again an amendment to the Bolden complaint to add class action allegations. By Order dated October 5, 2006, Judge McVerry again denied the Motion for class certification. Thus, the Bolden case continued before Judge McVerry as an individual case, and the Tish Complaint thereafter was filed and assigned to Judge McVerry.

On October 25, 2006, after having twice unsuccessfully attempted to assert class action allegations in the Bolden case, Plaintiff's counsel, who also represents the plaintiffs in both the Bolden and Tish cases, without leave of Court, filed an Amended Complaint in Class Action attempting to add individuals identified as Plaintiffs, including Ms. Fowler, the Plaintiff herein, and to add additional defendants.

Judge McVerry determined that the individual plaintiffs' claims were not appropriate subjects for class action status and ordered that claims of each of the newly identified plaintiffs, including Ms. Fowler, Plaintiff herein, be severed from the Tish case and from one another. He then directed that they be refiled as separate, individual causes of action, and said cases were not to be "related cases" for Judge selection purposes.

Before the Court is Shadyside Hospital's Motion to Dismiss (doc. no. 4) under Rule 12(b)(6), seeking dismissal of the Complaint for failure to state a claim upon which relief may be granted.

C. Standard for Motion to Dismiss

In deciding a motion to dismiss pursuant to Fed.R.Civ.P. Rule 12(b)(6), the Court accepts the well-pleaded factual allegations of the complaint as true, and draws all reasonable inferences therefrom in favor of the plaintiff.Armstrong Surgical Center, Inc. v. Armstrong County Memorial Hospital, 185 F.3d 154, 155 (3d Cir. 1999). A claim should not be dismissed for failure to state a claim unless it appears beyond a doubt that the non-moving party can prove no set of facts in support of its allegations which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957);Marshall-Silver Construction Co. v. Mendel, 894 F.2d 593, 595 (3d Cir. 1990).

In making this determination, the court must construe the pleading in the light most favorable to the non-moving party.Budinsky v. Pennsylvania Dept. of Environmental Resources, 819 F.2d 418, 421 (3d Cir. 1987). As the ...


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