Green v. Hooksett Police Department CV-94-581-M 12/06/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Green
v. Civil Action No. 94-581-M
Hooksett Police Department
O R D E R
Currently before the court is Plaintiff's Motion to Amend
Complaint (document no. 12). For the reasons discussed below,
the motion is granted.
BACKGROUND
The plaintiff, Robert Green, instituted the underlying
Americans with Disabilities Act claim on November 18, 1994,
against the Hooksett Police Department.
The complaint is premised on allegations that plaintiff
applied for reinstatement with the police department, following
disability leave, and the defendant refused to reinstate him
based on plaintiff's record of having a physical impairment and
the perception that plaintiff has a physical impairment. The
complaint alleges that the conduct of the defendant is in
violation of the Americans with Disabilities Act of 1990, 42
U.S.C. § 12101 et seg.
On November 6, 1995, plaintiff filed a motion to amend his
complaint. Pursuant to Fed. R. Civ. P. 15(a), plaintiff seeks t amend his complaint in order to add a claim under the
Rehabilitation Act of 1973.
The defendant vehemently objects to plaintiff's motion.
DISCUSSION
The decision to grant or deny a Fed. R. Civ. P. 15 motion to
amend lies within the sound discretion of the district court.
Tiernan v. Blvth, Eastman, Dillon & Co . , 719 F.2d 1 , 4 (1st Cir.
1983). This discretion, however, is subject to stricture--it is
mandated that leave to amend "shall be freely given when justice
so reguires." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S.
178, 182, 83 S. Ct. 227, 230, 9 L.Ed.2d 222 (1962). "The
clearest cases for leave to amend are correction of an
insufficient claim or defense and amplification of previously
alleged claims or defenses." 3 James Wm. Moore & Richard D.
Freer, Moore's Federal Practice 15.08[3], at 15-55 - 15-56 (1994)
(footnotes omitted). The reason for generous allowance of
amendments is a broad policy underlying the Federal Rules of
Civil Procedure that in most instances, disputes should be
decided on their merits. Id. Amendments are not to be denied
solely on the basis of delay. Haves v. New England Millwork
Distributors, Inc., 602 F.2d 15, 19-20 (1st Cir. 1979); Merrimack
Street Garage, Inc. v. General Motors Corp., 667 F. Supp. 41
2 (D.N.H. 1987). Contrastingly, amendments which unfairly
prejudice a litigant should not be granted. DCPB, Inc. v.
Lebanon, 957 F.2d 913, 917 (1st Cir. 1992). Therefore, inthe
absence of undue delay, bad faith, dilatory motive, undue
prejudice, or futility, amendments are generally allowed. Foman,
371 U.S. at 182; Correa-Martinez v. Arrillaqa-Belendez, 903 F.2d
49, 59 (1st Cir. 1990).
Having laid the groundwork pertaining to what extent
amendments shall be allowed, the court now considers plaintiff's
motion and defendant's arguments in response thereto.
As support for his motion to amend, plaintiff states that
the amendment will not result in any unfair surprise or undue
prejudice to the defendant because the claim arises out of the
same set of operative facts as the claim under the Americans with
Disabilities Act (ADA), and is in fact nearly identical to his
claim under the ADA. Plaintiff maintains that the reason for his
filing an amendment approximately one month before trial is that
he just received, from the defendant, information confirming that
the Hooksett Police Department received federal funds, a fact
necessary for an action based on the Rehabilitation Act.
Defendant asserts that plaintiff's proposed amendment should
be denied as futile. Defendant premises his futility belief on
three arguments: 1) plaintiff's proposed amendment fails to
3 establish a prima facie case under the Rehabilitation Act in that
plaintiff's condition did not and/or does not constitute a
permanent handicap within the meaning of the Rehabilitation Act;
2) plaintiff fails to establish a prima facie case under the
Rehabilitation Act in that he was not an otherwise qualified
handicapped individual; and 3) plaintiff's Rehabilitation Act
claim is barred by the applicable statute of limitations period.
The court will address each of these arguments.
I. Permanent Injury
Defendant states that plaintiff should not be allowed to
amend his complaint to add a claim under the Rehabilitation Act
because his condition did not constitute a "handicap," as that
term is defined under the Rehabilitation Act. Defendant states
that plaintiff has indicated that he was able to return to work
without restriction or limitation in January 1993. Consequently,
plaintiff is unable to satisfy his burden, under the
Rehabilitation Act, of establishing that his handicap is
permanent in nature.
"The Rehabilitation Act of 1973 ("Act") was the first major
federal statute designed to provide assistance to the population
of handicapped people in this country." DesRoches v. U.S. Postal
Service, 631 F. Supp. 1375, 1378 (D.N.H. 1986). "Section 501 of
4 the Act, 29 U.S.C. § 791, contains various provisions for
encouraging the federal government to employ the handicapped."
Id.
"To establish a prima facie case of handicap under §§ 5 0 1 (b)
and 504 of the Act, a plaintiff must establish that: 1) [he] was
a handicapped person within the meaning of the Rehabilitation
Act; 2) [he] was an otherwise gualified handicapped person; and
3) [he] was excluded from the position [he] sought . . . by
reason of [his] handicap." Boldini v. Postmaster General U.S.
Postal Service, No. 91-680-L (D.N.H. May 11, 1995).
"In handicap discrimination cases brought pursuant to
federal law, the claimant bears the burden of proving each
element of [his] chain." Cook v. Department of Mental Health,
Retardation, & H o s p s ., 10 F.3d 17, 22 (1st Cir. 1993); see Jovner
v. Dumpson, 712 F.2d 770, 774 (2d Cir. 1983); Sedor v. Frank, 756
F. Supp. 684, 686 (D.Conn. 1991).
Under the Rehabilitation Act, a handicapped person is
defined as:
any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (ill) is regarded as having such an impairment.
Lofgren v. Casey, 642 F. Supp. 1076, 1078 (D.Mass. 1986).
5 In order to recover under the Rehabilitation Act, a
plaintiff's impairment must be permanent in nature. Paegle v.
Department of Interior, 813 F. Supp. 61, 64 (D.D.C. 1993); see
also Presutti v. Felton Brush, Inc., No. 94-264-L (D.N.H. August
23, 1995). As stated in Paegle, 813 F. Supp. at 64, "the
[Rehabilitation] Act identifies a handicap as a severe disability
of a permanent nature." Emphasis added. Further, the
regulations pertinent to the Rehabilitation Act "define 'physical
or mental impairment1 to include any of a number of permanent,
disabling conditions." I d . (emphasis added).
In the instant case, a review of the record does not lead
this court to uneguivocally believe that plaintiff's condition
was temporary in nature. Defendant inappropriately draws this
conclusion from the fact that plaintiff was able to return to
work. Defendant would apparently have this court bar a plaintiff
from asserting a Rehabilitation Act claim merely because the
plaintiff was able to return to work without limitation or
restriction. Taking this type of approach would directly
circumvent the Rehabilitation Act's purpose of providing
assistance and removing barriers to the population of handicapped
people. Irrefragably, the Rehabilitation Act seeks to protect
the employment rights of handicapped individuals, who are
otherwise gualified for the job, by ensuring that they do not
6 receive disparate treatment due to their handicap. It is not
beyond the realm of possibility that a plaintiff may have a
permanent handicap but, nonetheless, is otherwise qualified for a
particular position.
In light of the above discussion, defendant's contention
that plaintiff's condition should automatically be regarded as a
temporary condition, given plaintiff's representation that he was
able to return to work without restriction or limitation in
January 1993, is without merit. Consequently, plaintiff's
amendment will not be precluded on this basis.
II. Otherwise Qualified
Defendant next contends that allowing plaintiff to amend to
include a Rehabilitation Act claim would be futile in that
plaintiff cannot make the required prima facie showing that he
was "otherwise qualified" to perform the position of patrol
officer when he was conditionally terminated by the department in
January 1992. Further, according to defendant, plaintiff does
not allege that he could have met the essential functions of the
patrol officer position, with or without reasonable
accommodation, until almost a year after he was terminated.
From a practical standpoint, this court is hesitant to
subscribed to the "otherwise qualified" argument offered by
7 defendant. The argument offered by the defendant appears to be
factually driven and a court should refrain, in amendment
contexts such as this, from automatically accepting as true those
facts and inferences offered by the party opposing the amendment.
Defendant's arguments, factually based as they are, appear
more appropriately suited to a motion for summary judgment.
Whereas a motion for summary judgment seeks resolution of a
controversy when there is no dispute as to either material fact
or inferences to be drawn from undisputed facts, the concern
behind a motion to amend is somewhat different. Succinctly, a
motion to amend might typically be granted, in the interests of
justice, unless doing so would be futile. A claim is futile when
it cannot survive a motion to dismiss. See Niqrelli v. Catholic
Bishop, 794 F. Supp. 246, 248 (N.D.I11. 1992). In applying the
standard for a motion to dismiss, a court must accept all of
plaintiff's factual allegations as true and will construe all
reasonable inferences arising from those facts in favor of the
plaintiff. Walker Process Equipment, Inc. v. Food Machinery &
Chemical Corp., 382 U.S. 172, 174-75 (1965); Dartmouth Review v.
Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989). In the end,
a motion to dismiss may be granted "if it clearly appears,
according to the facts alleged, that the plaintiff cannot recover
on any viable theory." Correa-Martinez, 903 F.2d at 52. Given the fact-sensitive nature of the issue of whether
plaintiff was indeed "otherwise qualified, " as that term is used
under the Rehabilitation Act, defendant's assertion that
plaintiff's amendment would be futile is without basis.
Accordingly, plaintiff's request to amend should not be precluded
on this basis.
III. Statute of Limitations
Defendant contends that plaintiff's motion to add a claim
under the Rehabilitation Act should be denied because such a
claim is barred by the Act's limitations period. Defendant
states that because Congress provided no statute of limitations
for claims brought pursuant to section 504 of the Rehabilitation
Act, this court is obligated to borrow from and apply the
limitations period from the state statute most analogous to the
Rehabilitation Act. Defendant represents that the analogous
state statute is New Hampshire's equal employment opportunity
statute, N.H. Rev. Stat. Ann. (RSA) 354-A. Defendant further
represents that a claim brought pursuant to RSA 354-A must be
filed within 180 days after the alleged act of discrimination.
Consequently, defendant asserts that plaintiff only had 180 days
after the alleged act of discrimination in which to file a claim
under the Rehabilitation Act. Plaintiff having failed to timely file, defendant contends the request to amend is futile.
The Rehabilitation Act, similar to many federal civil rights
statutes, does not contain a specific limitations period. In the
situation where a limitations period is not prescribed in the
statute. Congress has directed the courts to select the most
appropriate state statute of limitations to apply to the federal
action. 42 U.S.C. § 1988(a) (West Supp. 1994). "When Congress
has not established a time limitation for a federal cause of
action, the settled practice has been to adopt a local time
limitations as federal law if it is not inconsistent with federal
law or policy to do so." Wilson v. Garcia, 471 U.S. 261, 266-67,
105 S. C t . 1938, 1942, 85 L.Ed.2d 254 (1985). This process
encompasses a two-part analysis. First, in selecting the
applicable statute, a court is obligated to select the state
statute that is "most analogous" to the federal claim. I d . at
268. See also Goodman v. Lukens Steel Co . , 482 U.S. 656, 660,
107 S. C t . 2617, 2620, 96 L.Ed.2d 572 (1987). Second, a court
should determine whether application of the appropriate state
statute limitations period is consistent with the federal statute
and its underlying policies. Wilson, 471 U.S. at 266-68.
This court's first inquiry, therefore, is to ascertain which
New Hampshire statute is most analogous to a Rehabilitation Act
claim. In determining an analogous state statute, this court is
10 cognizant of the fact that other jurisdictions have resolved the
issue by concluding that claims under the Rehabilitation Act are
properly characterized as ones for personal injuries. See Baker
v. Board of Regents, 991 F.2d 628, 632 (10th Cir. 1993); Bush v.
Commonwealth Edison Co., 990 F.2d 928, 933 (7th Cir. 1993), cert.
denied. --- U.S. ,114 S. C t . 1648, 128 l.Ed.2d 367 (1994);
Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 983 (5th Cir.
1992); Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir.
1992); Hall v. Knott County Bd. of Educ., 941 F.2d 402, 407-08
(6th Cir. 1991), cert, denied, U.S. , 112 S. C t . 982, 117
L.Ed.2d 144 (1992). These jurisdictions, therefore, have applied
the state personal injury statute of limitations to
Rehabilitative Act claims. Id.
By comparison, still other jurisdictions have taken a
different approach to the issue by holding that state personal
injury statutes are not typically the most analogous to the
Rehabilitation Act. McCullough v. Branch Banking & Trust Co . , 35
F.3d 127 (4th Cir. 1994); Wolskv v. Medical College of Hampton
R d s ., 1 F.3d 222 (4th Cir. 1993). These jurisdiction have
determined that state statutes, specifically addressing
discrimination of disabled or handicapped individuals, are more
analogous to the Rehabilitation Act. It is the limitations
period from these statutes which have been applied to
11 Rehabilitation Act claims.
Although this court has not, in the past, resolved the issue
of which New Hampshire statute is most analogous to the
Rehabilitation Act, a recent decision by this Court, addressing a
substantially similar issue, provides very meaningful guidance.
In Doukas v. Metropolitan Life Ins. Co., 882 F. Supp. 1197, 1220
(D.N.H. 1995), this court held that "a claim for discrimination
brought under the ADA is best characterized as a claim for
personal injury." See, e.g., Goodman, 482 U.S. at 661
(characterizing discrimination as "a fundamental injury to the
individual rights of a person"); Hickey, 976 F.2d at 983 (As the
Supreme Court has recognized, claims for discrimination are
essentially claims for personal injury").
In characterizing ADA claims as personal injury actions
rather than actions under RSA 354-A (New Hampshire's Law Against
Discrimination), Doukas held that RSA 354-A is merely an
administrative process whereas the ADA affirmatively creates a
private right of action. Doukas, 882 F. Supp. at 1201. The
court further concluded that "the burden of pursuing a private
right of action under the ADA is much greater than the burden of
filing a complaint [pursuant to RSA 354-A] of discrimination with
the New Hampshire Commission for Human Rights, which is
thereafter obligated to conduct an investigation into the
12 circumstances surrounding the complaint. Id. The court finally
determined that "requiring individuals to identify a violation of
their civil rights under the ADA, evaluate whether that violation
warrants the initiation of a federal action, and actually
initiate the suit within 180 days of the discriminatory conduct
complained of is inconsistent with the ADA's broad objectives."
_____ Turning attention to the case at hand and recognizing the
substantial similarities between the ADA and the Rehabilitation
Act, this court is content that the reasoning enunciated in
Doukas is applicable here. Notably, RSA 354-A does not create a
private right of action but merely "creates an administrative
scheme to handle complaints of discrimination in employment, in
places of public accommodation, and in housing accommodations."
I d . at 1200; see also Rowe v. Foster's Daily Democrat, No. 94-
623-SD (D.N.H. August 24, 1995) ("RSA 354-A, as a matter of law,
only serves as a vehicle, rather than an independent avenue, for
bringing an otherwise uncognizable claim of discrimination in New
Hampshire state courts"). RSA-354-A also provides that a
complainant is not entitled to forego the administrative process
and proceed directly to state court. The Rehabilitation Act, on
the other hand, "contains no per se exhaustion requirement;
parties may proceed directly to district court." J.L. v. Social
13 Sec. Adm i n ., 971 F.2d 260, 264 (9th Cir. 1992). Further,
according to RSA 354-A, although a complainant is entitled to
seek judicial review of an adverse order by the Commission, that
review is limited. See 354-A:22. The Rehabilitation Act,
conversely, provides few limitations on a court's review.
"Congress uneguivocally expressed its intent [in the
Rehabilitation Act] to provide handicapped victims of government
discrimination a private right of action for damages against the
government discriminator." Doe v. Attorney General of U.S., 941
F .2d 780, 789 (9th Cir. 1991).
In light of the dramatic differences, both procedural and
substantive, between the Rehabilitation Act and RSA 354-A, this
court will refrain from applying a statute of limitations period
from an administrative scheme to an Act that creates a private
right of action and provides for affirmative redress of
discriminatory practices. It would, after all, be inappropriate,
in a Rehabilitation Act case, to apply a 180 day limitations
period from an administrative scheme that "encourages
conciliation and private settlement through the [state] agency's
intervention in live disputes." Burnett v. Grattan, 468 U.S. 42,
45-46, 104 S. C t . 2924, 2932, 82 L.Ed.2d 36 (1984); see also
Doukas, 882 F. Supp. at 1201. This court concludes that the 180-
day limitations period set forth in RSA 354-A is not the most
14 appropriate state statute of limitations to apply in a
Rehabilitation Act case.
By contrast, "RSA 508:4 is New Hampshire's residual or
general personal injury statute of limitations." Doukas, 882 F.
Supp. at 1201. RSA 508:4 states that "[e]xcept as otherwise
provided by law, all personal actions, except actions for slander
or libel, may be brought only within 3 years of the act or
omission complained of . . . ." RSA 508:4, I (Supp. 1993) .
The court concludes that RSA 508:4 is the state statute most
analogous to claims presented under the federal Rehabilitation
Act. This being the case, the correlating statute of limitations
that applies to RSA 508:4 claims, and therefore Rehabilitation
Act claims, is three years. This court further opines that the
application of RSA 508:4 to plaintiff's Rehabilitation Act claim
is not inconsistent with any federal law or policy. Accordingly,
defendant's assertion that plaintiff's proposed amendment is
futile, as barred by the statute of limitations period, is
without merit. Plaintiff's motion to amend should not be denied
Aside from the above-mentioned determination, defendant's
assertion that plaintiff's claims are time barred because his
proposed amendment does not "relate back" to the filing date of
the original Complaint is simply inaccurate. As defendant is no
15 doubt aware, the substantial similarities between the ADA and the
Rehabilitation Act is not merely coincidental. Further, courts
construing one act typically look to the other for guidance in
resolution. Presutti v. Felton Brush, Inc., No. 94-264-L (D.N.H.
August 23, 1995); Paegle, 813 F. Supp. at 61. In short, the
conduct implicated by the proposed Rehabilitation Act amendment
appears not to be different than the conduct which forms the
basis of plaintiff's original ADA claim. Relation back shall,
therefore, be permitted. See Zee-Bar, Inc. v. Kaplan, No. 88-
608-B (D.N.H. January 22, 1993).
CONCLUSION
After careful consideration, the court is content that the
interests of justice dictate that plaintiff should be allowed to
amend his complaint to add a claim premised on the Rehabilitation
Act. A review of the proposed amendment reveals that allowing
such amendment will not result in any unfair surprise or undue
prejudice in that the claim is premised on the same general set
of operative facts as plaintiff's ADA claim. Further, given
plaintiff's representation that allowing the amendment will not
result in any undue delay of the trial scheduled for January
16 1996, Plaintiff's Motion to Amend Complaint (document no. 12) is
appropriately granted.
SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: December 6, 1995
cc: Eleanor H. MacLellan, Esg. Daniel P. Schwarz, Esg.