The opinion of the court was delivered by: McVerry, J.
Before the Court for disposition are the DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ( Document No. 32 ), the Defendant's Brief in Support of Motion for Partial Summary Judgment ( Document No. 33 ), and the Plaintiff's Brief in Response to the Defendant's Motion for Partial Summary Judgment ( Document No. 35 ). For the reasons that follow, the Defendant's Motion for Partial Summary Judgment will be denied.
Procedural History*fn1 and Background
The instant case was initially commenced on October 25, 2006, when Valentina Tish ("Tish") filed an amended complaint in class action against Magee-Women's Hospital ("Magee") of the University of Pittsburgh Medical Center ("UPMC"). CV-06-820, Doc. No. 11. The amended complaint, which followed the granting of a partial motion to dismiss in favor of Magee, was filed without leave of court. In the amended complaint, Tish 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 corporate as defendants. Id. The UPMC entities filed a motion to strike the amended complaint on November 8, 2006, contending that Tish's right to amend her complaint "once as a matter of course" under Federal Rule of Civil Procedure 15(a) had terminated upon the Court's granting of the partial motion to dismiss, and that the complaint could be amended only with leave of court. CV-06-820, Doc. No. 13. They also filed an alternative motion to sever pursuant to Federal Rule of Civil Procedure 21, arguing that prejudice would result if all of the claims included within the amended complaint were to be litigated in a single action. Id.
On April 24, 2007, the Court filed a memorandum opinion which addressed the motions which had been filed by the UPMC entities. Tish v. Magee-Women's Hospital , Civil Action No. 06-820, 2007 WL 1221137, 2007 U.S. Dist. LEXIS 30130 (W.D.Pa. April 24, 2007). Although it was determined that Tish's right to amend her complaint without leave of court had terminated upon the granting of the partial motion to dismiss, the Court treated the filing of the amended complaint as a request for leave to amend and permitted the amendment. Tish , 2007 WL 1221137, at *5-6, 2007 U.S. Dist. LEXIS 30130, at *12-17. Nevertheless, in order to obviate the potential prejudice to the UPMC entities, the Court granted the alternative motion to sever. Tish , 2007 WL 1221137, at *6-8, 2007 U.S. Dist. LEXIS 30130, at *17-22. Because the claims asserted in the amended complaint were based on alleged violations of the Americans with Disabilities Act of 1990 ("ADA") [42 U.S.C. § 12101 et seq. ] and the Rehabilitation Act of 1973 ("Rehabilitation Act") [29 U.S.C. § 701 et seq. ], the Court reasoned that the "fact-specific" and "individualized" nature of claims typically arising under those statutes counseled in favor of severance, which would eliminate the need for multiple UPMC entities to defend themselves from a myriad of claims asserted by several different plaintiffs in a single action. Tish , 2007 WL 1221137, at *6-7, 2007 U.S. Dist. LEXIS 30130, at *17-20.
Pursuant to the severance order, Chedwick commenced his own action against UPMC, in which he alleged violations of the ADA and the Rehabilitation Act.*fn2 Doc. No. 1. His complaint, which was filed on June 15, 2007, included class action averments brought on behalf of a "proposed class consisting of all persons who ha[d] 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. On August 28, 2007, UPMC filed a motion to dismiss Chedwick's complaint. Doc. No. 3. In support of its motion to dismiss, UPMC argued, inter alia , that Chedwick's class action averments were precluded by the terms of the severance. Doc. No. 4, pp. 11-16. The Court rejected this argument in a memorandum opinion dated December 12, 2007, by stating as follows:
The Court acknowledges that it placed some reliance on the "fact-specific, individualized determinations" required under the ADA and the Rehabilitation Act in granting the Alternative Motion to Sever in Tish . Tish , 2007 WL 1221137, at *6, 2007 U.S. Dist. LEXIS 30130, at *17. As noted earlier, however, the Court's discussion about the ADA and the Rehabilitation Act was limited to the issue of prejudice. The Court did not hold that claims arising under the ADA and the Rehabilitation Act were categorically inappropriate for resolution within the context of a class action. Some ADA and Rehabilitation Act cases may properly be adjudicated as class actions. Hohider v. United Parcel Service , 243 F.R.D. 147 (W.D.Pa. 2007). Thus, the Court does not agree with the UPMC argument that Chedwick's averments fail to satisfy the requirements of Rule 23(a) as a matter of law. Doc. No. 4, p. 16.
Chedwick apparently believes that UPMC's corporate policies are not in compliance with the decision of the United States Court of Appeals for the Third Circuit in Shapiro v. The Township of Lakewood , 292 F.3d 356 (3d Cir. 2002). Doc. No. 6, p. 9. In Shapiro , the Court of Appeals made it clear that a plaintiff proceeding under the ADA pursuant to a "failure to transfer" theory is not necessarily required to establish that he or she formally applied for another position. Shapiro , 292 F.3d at 360-361. Chedwick alleges that UPMC requires its employees on disability leave to formally apply for vacant positions without regard to whether they are entitled to reasonable accommodations under the ADA and the Rehabilitation Act. Doc. No. 1, ¶ 33. It would be premature to dismiss Chedwick's class action averments at this early stage. The Court will deny UPMC's Motion to Dismiss with respect to these averments, since the issue of class certification will be more appropriately addressed when the record is more fully developed.
Chedwick v. UPMC , 619 F.Supp.2d 172, 189 (W.D.Pa. 2007)(emphasis in original).
On July 23, 2009, the United States Court of Appeals for the Third Circuit issued its decision in Hohider v. United Parcel Service, Inc. , 574 F.3d 169 (3d Cir. 2009), which reversed a class certification that had been granted in the District Court decision cited in this Court's opinion of December 12, 2007. UPMC responded to the decision in Hohider by filing a partial motion for summary judgment on September 30, 2009, which seeks a determination that class certification under Federal Rule of Civil Procedure 23 is not appropriate in the instant case. This motion is the subject of this memorandum opinion.
Federal Rule of Civil Procedure 56(c) reads, in pertinent part, as follows: The [summary] judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.
In interpreting Rule 56(c), the United States Supreme Court has stated:
The plain language . . . mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof ...