The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Before the Court for disposition is DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT (Document No. 3), Defendant's Brief in Support of Motion to Dismiss (Document No. 4), and Plaintiff's Response to Defendant's Motion to Dismiss (Document No. 6). For the reasons that follow, Defendant's Motion to Dismiss will be granted in part and denied in part.
Procedural History and Background
The context of the present motion can best be understood by reference to two similar cases. Bolden v. Magee-Women's Hospital of the University of Pittsburgh Medical Center, Civil Action No. 05-1063 (the "Bolden Action") was commenced in this Court on August 1, 2005. Bolden Action, 05-1063, Doc. No. 1. That action was brought solely under the Americans with Disabilities Act of 1990 [42 U.S.C. § 12101 et seq.] (the "ADA"). Carole Bolden ("Bolden"), the plaintiff in the Bolden Action, filed a Motion for Leave to File Amendment Complaint on May 30, 2006, seeking to add Valentina Tish ("Tish") as a plaintiff. Bolden Action, 05-1063, Doc. No. 15. On June 13, 2006, the Court denied Bolden's Motion for Leave to File Amended Complaint. Relying on the decision of the United States Court of Appeals for the Third Circuit in Averbach v. Rival Manufacturing Co., 879 F.2d 1196, 1203 (3d Cir. 1989), the Court determined that the transformation of the Bolden Action into a class action would "unduly delay" its resolution. Bolden Action, 05-1063, Doc. No. 17, p. 1. The Court further noted that the employment discrimination claims alleged in the proposed Amended Complaint in Class Action were not the sort of claims that were typically or appropriately resolved via class action litigation. Id. It was determined that the "hypothetical question" of whether the cases of Bolden and Tish should be consolidated was unlikely to be resolved in favor of consolidation. Id. In denying Bolden's motion, the Court ultimately based its decision on the grounds of undue delay and futility of amendment. Id., pp. 1-2, quoting Averbach, 879 F.2d at 1203 ("Factors the trial court may appropriately consider in denying a motion to amend include undue delay, undue prejudice to the opposing party, and futility of amendment."). The language in the opinion discussing the propriety of class action certification must be read in that context. As an additional basis for denying Bolden's motion, the Court determined that amendment of the complaint would be futile because Bolden's charge with the Equal Employment Opportunity Commission ("EEOC") pursuant to 42 U.S.C. §§ 2000e-5 and 12117(a) had not been filed as a class action. Bolden Action, 05-1063, Doc. No. 17, p. 2.
On June 21, 2006, Tish commenced her own action, Tish v. Magee-Women's Hospital, Civil Action No. 06-820 (the "Tish Action"), against Magee-Women's Hospital ("Magee"), alleging that Magee violated her rights under the Rehabilitation Act of 1973 [29 U.S.C. § 701 et seq.] (the "Rehabilitation Act"). Tish Action, 06-820, Doc. No. 1. Tish asserted class allegations under both the ADA and the Rehabilitation Act. The Court held a status conference in the Bolden Action on August 11, 2006. Bolden was permitted to renew her request to file an amended complaint.
In an opinion dated October 5, 2006, the Court again denied Bolden's request for leave to file an amended complaint. Bolden Action, 05-1063, Doc. No. 27. Relying on In re Burlington Coat Factory, 114 F.3d 1410, 1434 (3d Cir. 1997), the Court noted that leave to amend could be denied upon a finding of undue delay, bad faith, dilatory motive, prejudice to the defendant, or futility of amendment. Id., p. 2. Leave to amend was denied on the basis of both futility of amendment and the likelihood that the proposed amendment would cause undue delay. Id. Discovery in the Bolden Action was wrapping up, and the Court was concerned that resolution of that case would be "significantly delayed" if Bolden were permitted to amend her complaint. Id. With respect to the issue of futility, the Court again took note of the fact that Bolden's EEOC charge could not serve as a predicate for other potential class members to avoid the exhaustion of their administrative remedies, since Bolden had not made class-based allegations. Id., p. 4. Given that the "purported class members could not piggyback on Bolden's EEOC charge," the Court concluded that it would be futile to permit the amendment sought by Bolden. Id. Hence, the Bolden Action was not viewed as offering any "substantive advantage to the purported plaintiff class" when compared to the Tish Action. Id. The Court went on to say that, due to the individualized nature of the inquiries required under the ADA and the Rehabilitation Act, the allegations contained in Bolden's proposed amended complaint were "not the sort of claims that would ordinarily be appropriate for resolution in a class action." Id., p. 5 (emphasis added). At no point did the Court hold that claims under the ADA and the Rehabilitation Act were categorically inappropriate for resolution in a class action.
On July 26, 2006, relying on Federal Rule of Civil Procedure 12(b)(6), Magee filed a Motion to Dismiss in the Tish Action, seeking the dismissal of Tish's ADA claims. Tish Action, 06-820, Doc. No. 3. Tish responded on August 15, 2006, by filing a Motion for Joinder pursuant to Federal Rule of Civil Procedure 20. Tish Action, 06-820, Doc. No. 8. She sought to join her action with the Bolden Action. The Court disposed of both motions on October 17, 2006. Tish Action, 06-820, Doc. No. 10. Since Tish had not exhausted her administrative remedies pursuant to 42 U.S.C. §§ 2000e-5 and 12117(a), the Court dismissed her claims under the ADA. Id., p. 2. Accordingly, Tish was allowed to proceed only under the Rehabilitation Act. Tish's Motion for Joinder was denied for reasons similar to those relied upon by the Court in denying Bolden's requests for leave to amend. Since neither Bolden nor Tish had exhausted the administrative prerequisites to a class action claim under the ADA, the Court concluded that joinder of the two actions would be futile. Id. ("The Court concluded that because Bolden's EEOC charge cannot serve as the predicate for other potential class members to avoid the exhaustion requirement, amendment of the Bolden Action to assert class allegations under the ADA would be futile. For the same reasons, the class action allegations under the ADA in the Tish Action must also fail."). Magee was ordered to file an answer to Tish's Rehabilitation Act averments within ten days of the Court's order. Id., p. 3.
On October 25, 2006, eight days after the Court denied Tish's Motion for Joinder, Tish filed an Amended Complaint in Class Action. Tish Action, 06-820, Doc. No. 11. This Amended Complaint was filed without leave of Court. The Amended Complaint purported to add Gary Chedwick ("Chedwick"), Barbara Fowler ("Fowler"), Gloria Hamlett ("Hamlett"), and Terri Walsh ("Walsh") as plaintiffs and UPMC St. Margaret, UPMC Shadyside, UPMC Montefiore and UPMC d/b/a University of Pittsburgh Medical Center ("UPMC") as defendants. The Amended Complaint alleged violations of both the ADA and the Rehabilitation Act, averring that Hamlett and Walsh had exhausted their administrative remedies before the EEOC and received right to sue letters dated October 20, 2006, and October 17, 2006, respectively. Id., p. 2, ¶ 4.
The UPMC entities filed a Motion to Strike the Amended Complaint on November 8, 2006. Tish Action, 06-820, Doc. No. 13. They contended that the Court's granting of Magee's Motion to Dismiss had terminated Tish's right to amend her complaint "once as a matter of course" under Federal Rule of Civil Procedure 15(a), and that the filing of the Amended Complaint was improper because leave to amend had not been granted by the Court. In support of their Motion to Strike, the UPMC entities also argued that joinder of the parties was improper under Federal Rule of Civil Procedure 20. The UPMC entities likewise filed an Alternative Motion to Sever under Federal Rule of Civil Procedure 21, contending that prejudice would result if the claims asserted in the Amended Complaint were to be tried in a single action. Id.
Meanwhile, discovery in the Bolden Action concluded, and Magee moved for summary judgment in that case on November 13, 2006. Bolden Action, 05-1063, Doc. No. 28. The Court issued decisions in both cases on April 24, 2007. Magee was granted summary judgment in the Bolden Action. Bolden v. Magee Women's Hospital, 2007 WL 1228479, 2007 U.S. Dist. LEXIS 30127 (W.D.Pa. April 24, 2007). In Tish v. Magee-Women's Hospital, 2007 WL 1221137, at *5, 2007 U.S. Dist. LEXIS 30130, at *12-15 (W.D.Pa. April 24, 2007), the Court adopted the construction of Rule 15(a) advanced by the UPMC entities, holding that Tish's right to amend her complaint "once as a matter of course" had terminated when the Court granted Magee's Motion to Dismiss. Nevertheless, the Court treated Tish's filing of the Amended Complaint as a request for leave to amend, granting the request. Tish, 2007 WL 1221137, at *6-7, 2007 U.S. Dist. LEXIS 30130, at *15-20. The UPMC entities argued that they would be prejudiced if Tish were permitted to file the Amended Complaint, since the allegations made by the plaintiffs involved "fact-specific complaints against distinct business units within UPMC." Tish, 2007 WL 1221137, at *6, 2007 U.S. Dist. LEXIS 30130, at *17. In granting Tish's implied request for leave to amend, the Court accommodated the UPMC entities' concerns about prejudice by granting their Alternative Motion to Sever. Tish, 2007 WL 1221137, at *7, 2007 U.S. Dist. LEXIS 30130, at *18 ("While the prejudice identified by Defendants could be viewed as a factor counseling against leave to amend at this time, any such prejudice would be obviated if the Court were to grant Defendants' Alternative Motion to Sever."). Hence, the Court severed the claims asserted by Chedwick, Fowler, Hamlett and Walsh from the Tish Action pursuant to Federal Rule of Civil Procedure 21. Tish, 2007 WL 1221137, at *8, 2007 U.S. Dist. LEXIS 30130, at *21-22. The instant case is one of the cases that was severed from the Tish Action on April 24, 2007.
UPMC, the defendant in this case, has filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. No. 3. Since the matter comes before the Court in this posture, the allegations contained in the Complaint are assumed to be true. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S.Ct. 2499, 2509 (2007). Although "heightened fact pleading of specifics" is not required for a plaintiff to survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corporation v. Twombly, 127 S.Ct. 1955, 1974 (2007).
Chedwick brings this action against UPMC both individually and on behalf of similarly situated individuals. Doc. No. 1, ¶ 1. He seeks declaratory, injunctive and compensatory relief from UPMC for the denial of employment opportunities on the basis of his status as a "qualified individual with a disability." Id., ¶¶ 1-2, 6. Jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1343. Venue is proper under 28 U.S.C. § 1391(b).
Chedwick is an adult individual who resides in Munhall, Pennsylvania. Id., ¶ 6. UPMC is a Pennsylvania corporation existing for the purpose of operating a system of healthcare facilities and research centers. Id., ¶ 7. It maintains its corporate headquarters in Pittsburgh, Pennsylvania. Id. UPMC's network includes 19 hospitals. Id. In addition, UPMC maintains other healthcare facilities which service 29 different counties. Id. Roughly 40,000 people are employed by UPMC. Id. Since UPMC receives federal financial assistance, it is covered under the Rehabilitation Act. 29 U.S.C. § 794(a)-(b). Moreover, since UPMC has "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" and is "engaged in an industry affecting commerce[,]" it is an "employer" within the meaning of the ADA. 42 U.S.C. § 12111(5)(A).
Chedwick was most recently employed by UPMC as an Interface Analyst III. Doc. No. 1, ¶ 10. He suffers from Post Traumatic Stress Disorder ("PTSD") resulting from his experience in the military during the conflict in Vietnam. Id., ¶ 11. For the purpose of deciding the instant Motion to Dismiss, the Court will assume arguendo that Chedwick is a "qualified individual with a disability" within the meaning of 42 U.S.C. § 12111(8). Id., ¶¶ 12-14. Chedwick last worked for UPMC in December 2003, when he suffered a "severe episode" related to his PTSD. Id., ¶ 15. In January 2004, he was placed on UPMC's short-term disability plan, and later on long-term disability through Unum.*fn1 Id., ¶ 16. UPMC denied Chedwick's "return to work plan" in July 2004. Id., ¶ 17. Chedwick was terminated by UPMC on July 31, 2004. Id., ¶ 18.
In October 2005, Chedwick's long-term disability carrier, Unum, released him to work. Id., ¶ 19. Chedwick applied for 28 different positions at UPMC, including the position that he had held at the time of his termination. Id., ¶ 20. He avers that he was never considered for any of these positions because of his disability. Id., ¶ 21. On August 14, 2006, Chedwick filed a charge of discrimination with the EEOC pursuant to 42 U.S.C. §§ 2000e-5 and 12117(a).*fn2 Id., ¶ 22. He avers that UPMC terminated him because of his disability, and that UPMC denied him the chance to return to work (presumably by not hiring him for any of the 28 positions for which he applied) because of his disability. Id., ¶¶ 23-24. He bases his complaint on UPMC's failure to engage in an "interactive process" for the purpose of transferring him to a vacant position pursuant to his "return to work plan," or to consider him for the positions for which he applied subsequent to his termination. Id., ¶ 25. Chedwick claims that UPMC's conduct caused him to suffer the loss of wages and job benefits, and that it caused him to endure emotional harm. Id., ¶ 26. He alleges that UPMC's disparate treatment of him on account of his disability was intentional, and that UPMC acted with reckless disregard as to his rights under the ADA and the Rehabilitation Act. Id., ¶¶ 27-28.
The Complaint also contains class allegations under both the ADA and the Rehabilitation Act. Id., ¶¶ 29-38. Chedwick avers that his action against UPMC is brought, and may properly be maintained, as a class action under Federal Rule of Civil Procedure 23. Id., ¶ 30. He brings this action on his own behalf and "as representative of the proposed class consisting of all persons who have been terminated or separated from employment following a leave of absence and/or otherwise not accommodated by [UPMC's] failure to transfer to vacant and funded positions." Id., ¶ 31. He avers that Rule 23's prerequisites to a class action can be satisfied in this case. Id., ¶¶ 32-38.
UPMC has filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. No. 3. The grounds for dismissal in UPMC's Motion to Dismiss are rather specific and straightforward. The Court will address each of the three specific issues raised by UPMC.
UPMC seeks the dismissal of Chedwick's ADA claims on the ground that the filing of his EEOC charge was untimely. Doc. No. 3, pp. 6-7, ¶¶ 29-34. The parties agree that, because of Pennsylvania's status as a "deferral state" (i.e., a state which has its own law prohibiting the same practices as the ADA, and which authorizes an agency to grant or seek relief from such practices), Chedwick had 300 days from the time of the alleged discrimination to file his EEOC charge in accordance with 42 U.S.C. §§ 2000e-5(e)(1) and 12117(a). Seredinski v. Clifton Precision Products Co., 776 F.2d 56, 61-62 (3d Cir. 1985). It is undisputed that Chedwick's "return to work plan" was denied by UPMC in July 2004, and that he was terminated on July 31, 2004. Doc. No. 1, ¶¶ 17-18. It is also undisputed that his EEOC charge was not filed until August 14, 2006. Doc. Nos. 3-2, p. 1, 6-2, p. 2.
UPMC seeks the dismissal of Chedwick's ADA claims for two reasons. First, UPMC argues that Chedwick's averments concerning the denial of his "return to work plan" and UPMC's decision to terminate him are time-barred because they occurred more than 300 days prior to the filing of his EEOC charge. Doc. No. 4, pp. 7-8. Second, UPMC contends that Chedwick's averments concerning UPMC's failure to hire him in October 2005 are time-barred because they did not toll the ...