United States District Court for the Western District of Pennsylvania Denies Summary Judgment to Employer in Disability Discrimination Claim under Rehabilitation Act

On October 27, 2008, the Honorable Terrence F. McVerry issued a lengthy opinion in the case of Tish v. Magee-Womens Hospital, 2008 WL 4790733 (W.D. Pa. 2008), denying Magee-Women's Hospital's motion for summary judgment on claims brought under the federal Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. The decision contains a thorough analysis of a variety of issues that frequently arise in claims for disability discrimination under the Rehabilitation Act or, more commonly, the Americans with Disabilities Act ("ADA").

Valentina Tish, a medical assistant employed by Magee, suffered a knee injury when skiing. After taking a leave of absence under the Family and Medical Leave Act, and additional leave in accordance with Magee's internal policy, the employee was notified that her employment was being terminated pursuant to Magee's policy that medical leaves of absence could not exceed six months' duration. Tish then filed a lawsuit against Magee, claiming that her termination was in violation of Section 504 of the Rehabilitation Act. Section 504 prohibits disability discrimination in connection with any program or activity receiving federal financial assistance. Magee was subject to the Rehabilitation Act by virtue of its receipt of federal financial assistance.

The court initially observed that amendments to the Americans with Disabilities Act would become effective on January 1, 2009, and that the amendments would expand the reach of not only the ADA but also the Rehabilitation Act (as the standards under the two statutes are coextensive). The court stated, however, that Magee's legal obligations to Tish should be evaluated under the narrower scope of the Rehabilitation Act that will apply until the ADA amendments become effective.

The court then addressed whether Tish could establish that her impairment (a tear of her ACL as a result of the skiing accident) substantially limited one of her "major life activities." The court answered this question affirmatively, finding that at the time of the alleged discrimination Tish was substantially limited in the major life activities of walking, standing, bending and lifting. The court rejected Magee's contention that Tish's disability was not protected under the Rehabilitation Act because it was not a permanent disability. The court observed that it is not always necessary to establish the existence of a permanent disability in order to qualify for statutory protection, stating that "[t]he actual or expected duration of an impairment, and the actual or expected permanent or long-term impact of an impairment, are merely factors to be considered in determining whether the impairment at issue constitutes a statutory disability."

Reflecting the various hurdles that must be overcome in order to establish a disability discrimination claim, the court, following an exhaustive analysis of whether Tish could prove that she was "disabled" for purposes of the Rehabilitation Act, then proceeded to evaluate whether Magee could be found liable for failing to accommodate the disability. An element of this showing was that Tish was able to perform the "essential functions" of her job (or a potential alternative job) with a reasonable accommodation, and that Magee failed to provide her with such an accommodation. This examination, in turn, led to the additional issue of whether Magee engaged in an "interactive process" to ascertain how Tish might be accommodated, and whether Tish in fact could have been accommodated under the circumstances of this case. The court analyzed these issues in detail and concluded that "[t]he evidence of record, when viewed in the light most favorable to Tish, could establish that Magee utterly failed to engage in the interactive process."

Michael J. Betts

Hull & Klodowski LLC

November 17, 2008