ADA Decisions Archive: 1992 - 1995, DISABILITIES-DECISIONS 2 ADD ¶2-263, Cynthia M Brown, Plaintiff v Lankenau Hospital, Defendant., (May 14, 1996), (May 14, 1996)

Cynthia M Brown, Plaintiff v Lankenau Hospital, Defendant.

US District Court, Eastern District of Pennsylvania, No 95-7829,, May 14, 1996

Americans with Disabilities Act of 1990

Pennsylvania--Human Relations Act

Employment--Timeliness of court action--Knowledge of discrimination. The limitations period for a nurse to file an employment discrimination complaint did not begin to run at the time her employer first assigned her to a job requiring heavy lifting, but instead began to run when it became apparent that her employer was not going to honor its promise to eventually assign her to a more desirable position.

Employment--Timeliness of court action--Continuing violation. An employer’s series of allegedly discriminatory employment decisions constituted a continuing violation for timeliness purposes because the decisions concerned the same desired position and circumstances.

Employment--Timeliness of court action--Equitable tolling. A limitations period for a nurse to file an employment discrimination complaint was tolled because her employer actively misled her to believe that it was in the process of correcting its allegedly discriminatory employment decisions.

Employment--Emotional distress--Nonpromotion. Because 1) conduct in the employment setting will only very rarely rise to the level of outrageousness necessary to recover for the tort of intentional infliction of emotional distress, 2) a plaintiff failed to allege that she suffered some physical injury, harm or illness, and 3) the exclusivity provision of Pennsylvania’s Workmen’s Compensation Act bars recovery by employees on claims for intentional infliction of emotional distress, a plaintiff’s emotional distress claim was insufficient to permit recovery.

Padova, J: Plaintiff Cynthia M. Brown brings this suit against her employer, Defendant Lankenau Hospital, alleging that Defendant discriminated against her on the basis of her race and disability in failing to transfer her to a new position. Plaintiff asserts causes of action under Title VII of the 1964 Civil Rights Act, 42 U.S.C.A. §§2000e-2000e-17 (West 1994), as amended (hereinafter “Title VII”), the Americans with Disabilities Act, 42 U.S.C.A. §§12101-12213 (West 1995) (hereinafter “ADA”), the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. §§951-963 (West 1991 & Supp. 1995) (hereinafter “PHRA), and a state law tort claim for intentional infliction of emotional distress. Plaintiff seeks compensatory and punitive damages as well as attorney fees and expenses. Presently before the Court is Defendant’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, I will grant Defendant’s motion only with respect to the intentional infliction of emotional distress claim, and deny the motion with respect to the other claims.

I. STANDARD OF REVIEW

A claim may be dismissed under Fed. R. Civ. P. 12(b)(6) only if the plaintiff can prove no set of facts in support of the claim that would entitle her to relief. ALA v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). The reviewing court must consider only those facts alleged in the complaint and accept all of the allegations as true. Id.; see also Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989) (holding that in deciding a motion to dismiss for failure to state a claim, the court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the nonmoving party”).

II. FACTUAL ALLEGATIONS

The Complaint alleges the following facts, which I shall accept as true for the purposes of this motion.

At the time of the circumstances giving rise to this suit, Plaintiff, an African-American female, had worked for Defendant as a full-time nursing assistant since October 1977, and specifically in Defendant’s pediatrics unit since January 1990, where she primarily cared for infants. During her shift on January 9-10, 1991, Plaintiff was temporarily “pooled” to a floor on 3 Southwest where she cared for adult patients. In the course of lifting an adult patient, Plaintiff injured her back; as a result of her injury Plaintiff was unable to work for approximately six months from February through August 1991. Plaintiff was able to resume her full duties in the pediatrics unit, but was unable, due to her back condition, to perform any heavy lifting.

In early 1993, Plaintiff learned that Defendant was contemplating closing its pediatrics unit, but was assured by Defendant that she would be given suitable alternative employment after the unit closed. At that point in time, only one other nursing assistant, a Caucasian female with less than one year of seniority at the hospital, worked in the pediatrics unit; upon Plaintiff’s information and belief, that fellow employee did not have a disability.

In a letter dated May 21, 1993, Plaintiff was notified that the pediatrics unit would close effective July 1, 1993, and was offered one position on 3 Southwest, an adult floor, which she had to accept before June 1, 1993. By contrast, all the nurses and the other nursing assistant in pediatrics were given several alternative assignments, including positions in the mother/baby unit, which they all eventually accepted. On or about May 23, 1993, Plaintiff discussed with a supervisor the possibility of being placed in a nursing assistant position in the mother/baby unit that would become vacant in July 1993, but was told that the position would have to be posted and was not offered the job.

On or before June 1, 1993, Plaintiff advised Defendant in writing that she could not accept the offered position on the 3 Southwest adult floor because her back condition would prevent her from doing the heavy lifting required in that position. She again requested that she be given a position in the mother/baby unit because that job would not require regular heavy lifting.

On June 17, 1993, Plaintiff met with her supervisor, Carol Wingate, and the nursing employment coordinator, Mary Louise Ciciretti, and again told them of her physical disability and requested an assignment in the mother/baby unit. Ms. Ciciretti and Ms. Wingate informed Plaintiff that the only nursing position available in the entire hospital was the one she was offered on 3 Southwest. In fact, as noted above, a nursing assistant in the mother/baby unit was retiring in July 1993, and the Caucasian nursing assistant in the pediatrics unit had been offered a position in the mother/baby unit. Plaintiff was aware of yet another nursing position in the mother/baby unit that would become available in December 1993 due to a retirement, and discussed the possibility of assignment to that position with Ms. Ciciretti and Ms. Wingate. The latter agreed that if Plaintiff accepted the 3 Southwest position, they would waive a hospital prohibition on changing positions for nine months, thus allowing Plaintiff to be assigned to the mother/baby unit in December 1993. Ms. Ciciretti and Ms. Wingate also told Plaintiff that she would have to accept the 3 Southwest job immediately, or the job would not be held open for her. Plaintiff then informed Janice Bagnall, vice president of nursing, about the meeting and her situation.

Subsequently, Plaintiff’s then-physician, Donald M. Qualls, M.D., on staff at Lankenau, wrote two letters to Ms. Wingate, dated June 21, 1993 and July 2, 1993, in which he informed Ms. Wingate that Plaintiff continued to suffer back problems and could not do the heavy lifting required on an adult floor. Dr. Qualls also prepared a physical capacities evaluation form, limiting Plaintiff to pediatrics work and to lifting no more than 25 pounds.

On August 13, 1993, Ms. Bagnall agreed to assign Plaintiff to a position in the mother/baby unit as soon as one became available. Dr. Qualls cleared Plaintiff for such work with assistance in any lifting. Contrary to Ms. Bagnall’s agreement, Ms. Bagnall did not assign Plaintiff to a position in the mother/baby unit despite the fact that many positions became available. On or about May 18, 1994, Plaintiff re-injured her back while lifting an adult patient, and has not worked since that time. In August 1994, her treating physician cleared Plaintiff to return to light duty work, with permanent restrictions on lifting and moving patients. Defendant, however, has not offered Plaintiff any positions suitable for her limitations, despite the fact that jobs were and are available.

On or about February 2, 1994, Plaintiff filed a complaint with the Pennsylvania Human Relations Commission (hereinafter “PHRC”). This complaint was received by the United States Equal Employment Opportunity Commission (hereinafter “EEOC”) for purposes of dual filing on or about April 5, 1994. Plaintiff received a Right to Sue letter from the EEOC on or about September 25, 1995, and instituted the instant suit on December 18, 1995.

III. Discussion

A. Are the Discrimination Claims Time-Barred? [1]

Defendant argues that Plaintiff’s Title VII and ADA claims, and her PHRA claim must be dismissed because they were not timely filed with the EEOC and PHRC, respectively.

Before a plaintiff may file a federal suit alleging employment discrimination under either Title VII or the ADA, s/he must first file a charge with the EEOC. Trevino-Barton v. Pittsburgh Nat’l Bank, 919 F.2d 874, 878 (3d Cir. 1990); 42 U.S.C.A. §12117 (incorporating the remedial and procedural provisions, including the applicable limitations period, into the ADA). [2] A claim alleging violations of Title VII or the ADA must be filed with the EEOC within 300 days of when “the alleged unlawful employment practice occurred.” 42 U.S.C.A. §2000e-5(e)(1); 42 U.S.C.A. §12117.

A claim alleging employment discrimination on the basis of race or a disability in violation of the PHRA must be filed with the PHRC within 180 days of the allegedly discriminatory act giving rise to the claim. 43 Pa. Stat. Ann. §959(h). [3]

Defendant argues that the statute of limitations on Plaintiff’s employment discrimination claims began to run on May 21, 1993, when she received the letter informing her that the pediatrics unit was closing and offering her the position on an adult floor. Defendant argues that because Plaintiff knew on May 21, 1993 that Defendant would not honor her request to transfer her to the mother/baby unit and that all the other pediatrics nursing personnel were offered positions in the mother/baby unit, she was aware on that day of Defendant’s allegedly discriminatory conduct. Plaintiff accordingly was required to file her Title VII and ADA claims with the EEOC within 300 days of that date, that is, not later than March 17, 1994. Therefore, Defendant argues that Plaintiff’s April 5, 1994 filing was 19 days late. Similarly, with respect to the PHRA claim, Defendant contends that Plaintiff was required to file her complaint within 180 days of May 21, 1993, that is, by November 17, 1993; thus, her February 2, 1994 filing also is time-barred.

In support of its position, Defendant cites Delaware State College v. Ricks, [24 EPD ¶31,393] 449 U.S. 250, 101 S.Ct 498 (1980). In Ricks, a college professor who was denied tenure sued the college under Title VII and 42 U.S.C.A. §1981, alleging national origin discrimination. Id. at 252-254, 101 S. Ct. at 501-02. The key question before the Supreme Court was on what day the limitations period began to run on Ricks’ claims. Id. at 252, 101 S.Ct. at 501. After receiving a recommendation from the faculty against granting tenure to Ricks, on March 13, 1974 the college’s board of trustees voted to deny tenure to Ricks. Id. Ricks filed a grievance with a board of trustees committee, which held a hearing in May 1974 and took the matter under advisement. Id. In the meantime, on June 26, 1974 the college offered Ricks a one-year contract that would expire on June 30, 1975, at which point his employment relationship with the college would end. Id. at 253, 101 S. Ct. at 501. Ricks signed the contract on September 4, 1974. Id. at 254, 101 S. Ct. at 502. On September 12, 1974, the board of trustees denied his grievance. Id.

The Supreme Court specifically rejected the argument that the limitations period started when Ricks’ one-year employment contract expired. Id. at 257, 101 S.Ct. 503-504 The Court instead held that the allegedly discriminatory action occurred, and hence the limitations period began to run, on the date that the tenure decision was made and communicated to Ricks, and not on the last day of Ricks’ employment, when the effects of the discriminatory action actually occurred. Id. at 258, 101 S.Ct. at 504. Therefore, the operative date for limitations purposes was June 26, 1974, when Ricks was offered the one-year terminal contract. Id. at 261-62, 101 S. Ct. at 506. See also Lever v. Northwestern Univ., [60 EPD ¶41,871] 979 F.2d 552, 553 (7th Cir. 1992) (holding that Title VII claim accrues on day allegedly discriminatory conduct occurs, not when consequences of conduct become painful) (citing Chardon v. Fernandez, 454 U.S. 6, 8, 102 S. Ct. 28, 29 (1981)), cert. denied, 508 U.S. 951, 113 S. Ct. 2443 (1993). Similarly, Defendant argues that any claim against Defendant accrued on the date that the Hospital’s allegedly actionable conduct occurred, i.e., on May 21, 1993, when the hospital first communicated its decision to Plaintiff that it would not transfer her to the mother/baby unit.

The fact situation in Ricks is distinguishable from the instant case. As an initial matter, I note that Defendant somewhat misstates the facts alleged in the Complaint. The Complaint does not allege that Plaintiff specifically requested a position in the mother/baby unit when Defendant first informed her of the possible closing of the pediatrics unit; instead she simply alleged that Defendant assured her that it would provide her with suitable alternative employment. The Complaint does not state that the May 21, 1993 letter denied a past explicit request by Plaintiff for a job in the mother/baby unit; it solely alleged that Defendant offered her a job on 3 Southwest. It was only after she received the May 21, 1993 letter that Plaintiff began making specific requests for placement in the mother/baby unit.

In contrast to Ricks, where the college told Ricks that it had denied him tenure, Defendant did not tell Plaintiff that she could never have a job in the mother/baby unit. Quite the contrary, Plaintiff was given assurances by Ms. Ciciretti and Ms. Wingate in the June 17, 1993 meeting that they would assist Plaintiff in her efforts to obtain a position in the mother/baby unit. And on August 13, 1993, Plaintiff received a specific promise from Ms. Bagnall, the vice president of nursing, to assign Plaintiff to the next available position in the mother/baby unit. According to the Complaint, the next opening occurred in December 1993, but Plaintiff was not given that position.

Ricks stands for the proposition that the limitations period begins to run on a claim for employment discrimination when an employer makes and communicates his or her official decision to the employee. Ricks, 449 U.S. at 258, 101 S. Ct. at 504. See also Oshiver v. Levin, Fishbein, Sedran & Berman, [65 EPD ¶43,417] 38 F.3d 1380, 1386 (3d Cir. 1994) (holding that claim accrues on federal employment discrimination claim when plaintiff was aware, or should be aware through the exercise of reasonable diligence, that s/he has been injured by employer’s action) (citations omitted). I agree with Plaintiff’s contention that the limitations period did not begin to run until December 1993 because it did not become apparent that Ms. Bagnall would not honor her August 1993 promise until the next position opened in the mother/baby unit, which was in December 1993, and Plaintiff was not assigned to it.

Plaintiff also points out that the ADA imposes a duty on an employer to reasonably accommodate an employee’s disability by re-assigning him or her to a suitable position within a reasonable period of time. 29 C.F.R. Part 1630, App., at pp. 406-08 (1995). This duty extends not only to existing positions, but those that become vacant within a reasonable period of time. Id. (noting that what is a “reasonable amount of time” should be determined in light of the totality of the circumstances). Thus, Defendant had a duty to find a suitable position for Plaintiff that extended beyond July 1, 1993, when the pediatrics unit closed. In this case, Plaintiff did not suffer an injury until it became apparent that Defendant would not assign her to a suitable job within a reasonable amount of time.

The Complaint’s allegations also support Plaintiff’s alternative theory that Defendant’s discriminatory conduct was continuing in nature from May 1993 through at least December 1993.

In most federal causes of action, when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be barred.

Brenner v. Local 514, United Brotherhood of Carpenters, 927 F.2d 1283, 1295-96 (3d Cir. 1991) (holding that union’s practice of not referring plaintiffs out for work on a fair basis over a seven-year period in retaliation for union activities was a continuing violation for statute of limitations purposes in case alleging federal labor law violations) (citations omitted).

In applying the continuing violation theory, the court must determine whether acts within the limitations period relate back to the ostensibly time-barred acts by considering whether the acts concern the same subject matter, the frequency of the acts, and whether the acts falling outside the limitations period had such a degree of permanence that they would trigger an employee’s awareness and duty to assert her rights. Clark v. Sears Roebuck & Co., [61 EPD ¶42,341] 816 F. Supp. 1064, 1069 (E.D. Pa. 1993) (citations omitted); Stair v. Lehigh Valley Carpenters Local No. 600, 813 F. Supp. 1112, 1115-16 (E.D. Pa. 1993). In the instant case, Plaintiff alleged a series of events and interactions with Defendant’s agents, concerning the same subject matter, that occurred from May to December 1993. Moreover, given that Plaintiff received assurances throughout the summer that she would eventually be placed in the mother/baby unit, the May 21, 1993 letter was not an event of such permanence that Plaintiff had a duty to assert her rights.

Finally, I also agree with Plaintiff’s argument that even assuming arguendo that May 21, 1993 was the accrual date, by giving Plaintiff false information about the availability of positions and then promising her in August of 1993 that Defendant would place her in the mother/baby unit as soon as a position became available, Defendant’s actions equitably tolled the limitations period. Equitable tolling of the limitations period is appropriate where the employer’s own acts lulled plaintiff into foregoing prompt action on his/her claim, such as when the employer actively misleads the plaintiff. Oshiver, 38 F.3d at 1387. When an employer actively misleads the employee, the statute of limitations will not begin to run until the plaintiff becomes aware, or reasonably should be aware, of the facts that would support his or her claim. Id. at 1389. See also Pearson v. Macon-Bibb County Hosp. Auth., [58 EPD ¶41,313] 952 F.2d 1274, 1280 (11th Cir. 1992) (holding that in discriminatory discharge suit, it was inappropriate to grant summary judgment based on employer’s contention that claim was time-barred where employer had offered to transfer employee to another position; filing period is equitably tolled until it is or should be apparent to a reasonably prudent person that employer has ceased to pursue another position because `[i]t is too much for the law to expect an employee to sue his employer for [discrimination] at the same time he is led to believe the employer is trying to place him in another job'”) (citing Cocke v. Merrill Lynch & Co., [43 EPD ¶37,145] 817 F.2d 1559, 1561-62 (11th Cir. 1987)).

Here, Defendant promised in August 1993 that Plaintiff would be given the next available position in the mother/baby unit. Viewing the facts in the light most favorable to Plaintiff, Defendant actively misled Plaintiff to wait until the next position opened up, which turned out to be in December 1993. It was not until she was not given that position that Plaintiff was aware or should have been aware of the facts that would support her discrimination claims. Thus, Defendant’s actions equitably tolled the limitations period until at least December 1993.

For these reasons, I find that Plaintiff’s Title VII, ADA, and PHRA claims were timely filed with the appropriate administrative agencies, and I will deny Defendant’s motion to dismiss these claims.

B. Claim for Costs and Attorney Fees

Plaintiff properly asserted a claim for costs and attorney fees pursuant to 42 U.S.C.A. §2000e-5(k) (West 1994), because she has alleged Title VII and ADA violations. Similarly, Plaintiff’s request for attorney fees pursuant to 42 U.S.C.A. §1988(b) (West 1994) is appropriate because she has asserted a claim under 42 U.S.C.A. §1981a (West 1994) for damages for intentional discrimination. Defendant’s argument that Plaintiff’s claims for costs and attorney fees should be dismissed because they were listed in a separate count (Count III) of the complaint is frivolous and warrants no further discussion.

C. Intentional Infliction of Emotional Distress Claim

Defendant correctly contends that Plaintiff’s state law tort claim for intentional infliction of emotional distress must be dismissed for the following reasons. First, conduct in the employment setting will only very rarely rise to the level of outrageousness needed to recover on this tort, Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988), and courts have found in the context of employment discrimination claims that an allegation of `racial discrimination alone ... does not state a claim for intentional infliction of emotional distress.” E.E.O.C. v. Chestnut Hill Hosp., 874 F. Supp. 92, 96 (E.D. Pa. 1995) (citing Nichols v. Acme Markets, Inc., [51 EPD ¶39,368] 712 F. Supp. 488, 494-95, aff’d, 902 F.2d 1561 (3d Cir. 1990)).

Second, the exclusivity provision of Pennsylvania’s Workmen’s Compensation Act (hereinafter “WCA”) bars recovery by employees on claims for intentional infliction of emotional distress. James v. Int’l Business Machines Corp., 737 F. Supp. 1420, 1427 (E.D. Pa. 1990) (citing 77 Pa. Stat. Ann. §481(a)); Adams v. USAir, Inc., 652 A.2d 329, 330 (Pa. Super. Ct. 1994) (same). [4]

Third and finally, to state a claim for intentional infliction of emotional distress under Pennsylvania law, a plaintiff must allege some physical injury, harm or illness. Rolla v. Westmoreland Health System, 651 A.2d 160, 163 (Pa. Super. Ct. 1994); Armstrong v. Paoli Memorial Hosp., 633 A.2d 605, 608 (Pa. Super. Ct. 1993), app. denied, 649 A.2d 666 (Pa. 1994); Abadie v. Riddle Memorial Hosp., 589 A.2d 1143, 1146 (Pa. Super Ct. 1991). In the instant case, Plaintiff’s complaint solely alleges that she suffered severe emotional distress, which is insufficient under the law.

An appropriate Order follows.

O R D E R

AND NOW, this 14th day of May, 1996, upon consideration of Defendant’s Motion to Dismiss (Doc. No. 4), and Plaintiff’s Response in opposition thereto (Doc. No. 5),

IT IS HEREBY ORDERED THAT:

1. Defendant’s Motion is GRANTED IN PART AND DENIED IN PART. Defendant’s Motion is GRANTED with respect to Plaintiff’s claim for intentional infliction of emotional distress (Count V). Count V of Plaintiff’s Complaint is DISMISSED. Defendant’s Motion is DENIED with respect to all other claims asserted by Plaintiff.

BY THE COURT:

John R. Padova, J.