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,

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 . ,

, 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,

,

,

(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.

Amendments are not to be denied

solely on the basis of delay. Haves v. New England Millwork

Distributors, Inc.,

(1st Cir. 1979); Merrimack

Street Garage, Inc. v. General Motors Corp.,

2 (D.N.H. 1987). Contrastingly, amendments which unfairly

prejudice a litigant should not be granted. DCPB, Inc. v.

Lebanon,

(1st Cir. 1992). Therefore, inthe

absence of undue delay, bad faith, dilatory motive, undue

prejudice, or futility, amendments are generally allowed. Foman,

; Correa-Martinez v. Arrillaqa-Belendez,

(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,

(D.N.H. 1986). "Section 501 of

4 the Act,

, contains various provisions for

encouraging the federal government to employ the handicapped."

"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 .,

(1st Cir. 1993); see Jovner

v. Dumpson,

, 774 (2d Cir. 1983); Sedor v. Frank,

(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,

(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,

(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,

, "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,

(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.,

(1965); Dartmouth Review v.

Dartmouth College,

(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,

. 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.

(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,

,

105 S. C t . 1938, 1942,

(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 . ,

,

107 S. C t . 2617, 2620,

(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,

.

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,

(10th Cir. 1993); Bush v.

Commonwealth Edison Co.,

(7th Cir. 1993), cert.

denied. --- U.S. ,114 S. C t . 1648, 128 l.Ed.2d 367 (1994);

Hickey v. Irving Indep. Sch. Dist.,

(5th Cir.

1992); Morse v. University of Vermont,

(2d Cir.

1992); Hall v. Knott County Bd. of Educ.,

(6th Cir. 1991), cert, denied, U.S. , 112 S. C t . 982,

(1992). These jurisdictions, therefore, have applied

the state personal injury statute of limitations to

Rehabilitative Act claims.

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 . ,

(4th Cir. 1994); Wolskv v. Medical College of Hampton

R d s .,

(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.,

(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,

(characterizing discrimination as "a fundamental injury to the

individual rights of a person"); Hickey,

(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,

. 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.

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 .,

, 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,

, 104 S. C t . 2924, 2932,

(1984); see also

Doukas,

. 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,

. 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

on this basis.

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,

. 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.

17