On April 21, 2011, Judge Terrence F. McVerry of the U.S. District Court for the Western District of Pennsylvania denied class certification in Chedwick, et al. v. UPMC d/b/a University of Pittsburgh Medical Center, Case No. 07-806 (W.D. Pa. Apr. 21, 2011). The decision is a rare class certification ruling under the Americans With Disabilities Act (“ADA”). The claims at issue in Chedwick focus on one of the key pressure points in current ADA litigation – the legality of neutral leave of absence rules by which an employer terminates an employee who fails to return from leave due to the passage of time and the expiration of their leave.
In Chedwick, the named plaintiff, a former employee of the University of Pittsburgh Medical Center (“UPMC”) who allegedly suffers from post-traumatic stress disorder (“PTSD”) as a result of his military service in Vietnam, brought suit under the ADA and the Rehabilitation Act, alleging that UPMC discharged him and refused to rehire him because of his actual or perceived disability. UPMC terminated Chedwick from his software analyst position following his failure to return to work after taking the maximum 26 weeks of leave permitted by UPMC’s medical leave policy. Approximately one year later, his insurer determined that his medical condition had improved enough for him to return to work, and he allegedly applied for at least 28 positions at UPMC, including his prior job. Chedwick claims that UPMC never considered him for these positions because of his PTSD.
UPMC maintained a policy providing for the automatic discharge of any employee who remained on leave for more than 26 weeks during a 12-month period. An employee who was unable to return to his or her prior position but wished to remain employed by UPMC could obtain an alternative position only by submitting a formal application. UPMC also had a Return to Work (“RTW”) Assistance Program that aided current employees who were able to return to work in some capacity but temporarily unable to perform all of their prior duties. An employee who wished to participate in the RTW program had to provide medical documentation from a treating physician detailing the employee’s functional limitations. Participation in the RTW program was limited to 26 weeks, at which point an employee who had not found a regular position would be discharged. UPMC’s “Work Partners” office assisted RTW program participants in their efforts to obtain permanent positions by discussing their abilities and limitations with managers who were seeking to fill vacancies.
Chedwick did not participate in the RTW program. However, while assisting Chedwick in applying for a new position with UPMC, his insurer mentioned in an email to a UPMC employee that Chedwick was receiving long-term disability benefits. The UPMC employee forwarded that email to another UPMC employee in inquiring about a position that was consistent with Chedwick’s qualifications. Chedwick applied for the position, but never received an interview. Chedwick contended that UPMC declined to interview him for the position because of the forwarded information referencing his long-term disability benefits. Chedwick further claimed that UPMC’s policy providing for the automatic termination of any employee on leave for more than 26 weeks, or who participated in the RTW program for 26 additional weeks without securing a permanent position, violated the ADA and the Rehabilitation Act.
Chedwick brought a class action. He sought to certify a class consisting of all former employees of UPMC for all business units from 2004 through the present who were on a medical leave of absence and automatically terminated after 26 weeks. Chedwick, however, conceded that he could not pursue class certification on his claims that UPMC “discriminated” against him based on his disability because for such discrimination claims, plaintiffs must establish that they are “disabled” and “qualified,” both of which inquiries would require too many “individualized and divergent” determinations to facilitate the adjudication of their claims on a class basis under the Third Circuit’s decision in Hohider v. United Parcel Service, Inc., 574 F.3d 169 (3d Cir. 2009).
Instead, Chedwick sought class certification on his claim that UPMC violated the provision of the ADA governing the permissible scope and use of medical examinations and inquiries. Chedwick contended that UPMC’s policies resulted in the “improper use of medical examinations and inquiries,” and that this “improper use” caused him and other potential class members to lose their jobs.
The Court determined that certification was inappropriate because Chedwick could not establish Rule 23(a)(3)’s “typicality” requirement. The Court reasoned that Chedwick could not demonstrate that his claims were “typical” of the claims asserted on behalf of other potential class members because factual circumstances underlying his claims would be materially different from those underlying the claims of the RTW program participants. While Chedwick based his motion for class certification on the alleged misuse of returning employees’ medical information by Work Partners personnel in connection with the RTW program, he never participated in the RTW program. The Court also found that Chedwick’s status as a former UPMC employee was materially different from the status of individuals who were trying to remain UPMC employees by utilizing the RTW program. The Court noted that an applicant for future employment, such as Chedwick, was not directly affected by the automatic-termination policy. The Court further determined that because Chedwick’s medical information was provided voluntarily and not in response to an “inquiry” by UPMC, it was not subject to the ADA’s restrictions on the use of medical information obtained through medical examination or inquiry. As a result, the Court determined that Chedwick’s claim might be subject to a defense that was both inapplicable to many members of the proposed class and likely to become a major focus of the litigation. For these reasons, the Court determined that Chedwick could not satisfy Rule 23(a)(3)’s “typicality” prerequisite for class certification.
The Court also determined that Chedwick could not establish Rule 23(a)(4)’s “adequacy” requirement because the unique nature of his claim rendered him an inadequate class representative. The Court found that because UPMC might be able to attack Chedwick’s improper use claim on the ground that his medical information was not provided in response to an “inquiry,” there was a danger that Chedwick would become distracted by the presence of a possible defense applicable only to him, and that the interests of the other class members would suffer.
Even assuming that Chedwick could establish the “typicality” and “adequacy” prerequisites under Rule 23(a), the Court also determined that he would not be able to establish his entitlement to certification under Rule 23(b)(2) or (b)(3). The Court held that class certification was improper under Rule 23(b)(2) because the lawfulness of UPMC’s actions with respect to each potential class member would turn on factual characteristics and circumstances unique to each individual. Because Chedwick premised his claim on the theory that UPMC wrongfully “used” information to deny him a position for which he was nevertheless “qualified,” the Court concluded that each class member would need to establish both the existence of a vacant position and his or her own qualifications for the position. The Court ruled that because the lawfulness of UPMC’s actions with respect to each potential class member would turn on factual characteristics and circumstances unique to each individual, Chedwick could not show that UPMC acted or refused to act on grounds that applied generally to the class, or that injunctive relief or corresponding declaratory relief was appropriate with respect to the class as a whole.
Similarly, the Court concluded that certification under Rule 23(b)(3) was inappropriate because the “essential elements” of the plaintiffs’ claims – i.e., that each plaintiff was “disabled” and “qualified” – required individualized treatment. Accordingly, questions of law or fact common to class members did not predominate over any questions affecting only individual members, as required by Rule 23(b)(3).
In dicta, the Court provided guidance on what a viable ADA claim might look like for Rule 23 purposes. While Chedwick premised his claim on the theory that UPMC wrongfully “used” information to perpetrate a form of “discrimination,” requiring class members to establish the individualized elements of “qualified” and “disabled,” the Court acknowledged that in different circumstances, a plaintiff could assert claims under the ADA’s improper “use” provision without having to establish such individualized elements. For example, an individual who is harmed by an employer’s failure to comply with the ADA’s confidentiality requirements can recover damages resulting from an unauthorized disclosure regardless of whether he or she is “disabled.”
Due to the requirements of the ADA, class certification is more difficult for plaintiffs to achieve in these types of cases. Chedwick illustrates how employers can use the individualized requirements of the elements of an ADA claim to defeat class certification.