Carole J. Southerland v. Hardaway Management Company, Inc.

NATHANIEL R. JONES, Circuit Judge,

concurring in parts I — III, Y, and VI, and concurring in result only in part IV.

Southerland claims that she was wrongfully terminated in violation of section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Section 504 of the Rehabilitation Act was enacted as a general civil rights provision “to prevent discrimination against all handicapped individuals ... in employment, housing, transportation, education, health services, or any other Federally-aided programs.” S.Rep. No. 1297, 93d Cong., 2d Sess. 38, reprinted, in 1974 U.S.C.C.A.N. 6373, 6388. In pertinent part, the statute states that “[n]o otherwise qualified individual with handicaps in the United States ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a) (Supp. III 1992).

The district court granted summary judgment to Hardaway on Southerland’s Rehabilitation Act claim because it found her claim to be barred by the statute of limitations. J.A. at 23. The court found this circuit’s decision in Hall v. Knott County Bd. of Educ., 941 F.2d 402 (6th Cir. 1991), cert. denied, — U.S. —, 112 S.Ct. 982, 117 L.Ed.2d 144 (1992), to be directly on point. In Hall, a blind Kentucky resident sued a school district for violating section 504 of the Rehabilitation Act. Id. at 405. The court determined that the plaintiffs claim was barred by the statute of limitations since it was not brought within one year of its accrual. Id. at 407. The court explained its rationale as follows:

The Rehabilitation Act has no built-in statute of limitations. In this, as in other respects, it resembles the civil rights legis-
lation codified at 42 U.S.C. § 1983. Federal law normally fills such gaps by importing a limitations period determined by reference to the most closely analogous statute of limitations of the state in which the claim arose. See Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), where it was held that a claim under § 1983 must be brought within the period prescribed by state law for personal injury actions, personal injury actions being most closely analogous to civil rights actions.
Section 504 of the Rehabilitation Act is a “civil rights statute ... closely analogous to section 1983.” Alexopulos v. San Francisco Unified School District, 817 F.2d 551, 554 (9th Cir.1987). Wilson v. Garcia thus strongly suggests that if Kentucky law is to provide a limitations period for the plaintiffs Rehabilitation Act claim, it is the one year period prescribed by Ky.Rev. Stat. § 413.140(l)(a) for actions based on injury to the person.

Hall, 941 F.2d at 407-08. Faced with a Kentucky resident, who filed a claim under the Rehabilitation Act on August 30, 1991, and whose cause of action allegedly accrued, at the latest, on Jan. 27, 1989, the district court applied the binding precedent of Hall and held that Southerland’s claim was time barred.

Because we are bound by this authority, I see no viable option but to affirm the district court’s grant of summary judgment to Hard-away on this issue.

Nonetheless, after thorough analysis, I am convinced that the Hall court’s reasoning on this issue was errant. The Hall court borrowed the analysis of the Ninth Circuit in Alexopulos v. San Francisco Unified School District, 817 F.2d 551, 554 (9th Cir.1987), without closely analyzing what the Supreme Court said in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Simplified, the serial reasoning of the Sixth and Ninth Circuits proceeds as follows: (1) Based on Supreme Court precedent involving civil rights statutes and congressional direction in 42 U.S.C. § 1988(a), when a federal cause of action lacks a statute of limitations, the set-*258tied practice has been to adopt the most appropriate or most analogous statute of limitations of the state in which the claim arose. See Wilson, 471 U.S. at 266-67, 105 S.Ct. at 1941-42. (2) The Rehabilitation Act is a federal civil rights law. (3) In Wilson, the Court decided that 42 U.S.C. § 1983 claims were most like personal injury tort actions; thus it held that all section 1983 claims had to be brought within the period prescribed by each state for personal injury actions. 471 U.S. at 275-76, 105 S.Ct. at 1946-47. (4) As a civil rights statute, the Rehabilitation Act is closely analogous to section 1983. (5) Therefore, the state statute of limitations applicable to personal injury actions should also apply to Rehabilitation Act claims.

The Hall court’s reasoning error occurs in the analogy used in step four. Although it is true that the Rehabilitation Act and section 1983 are both civil rights statutes, nothing indicates that the Wilson Court intended all federal civil rights statutes that lack a statute of limitations to be governed by the state time period for personal injury actions. The Wilson Court came to the conclusion that the time period applicable to personal injury actions should be applicable to section 1983 claims because it determined, after exhaustive analysis, that section 1983 claims were “most analogous” to personal injury actions. Thus, I submit that step one in the reasoning process noted above must inform and control the adoption of a state statute of limitations for Rehabilitation Act claims. Analogizing all federal civil rights statutes to section 1983 claims for purposes of finding a statute of limitations may expedite the analysis, but it directly conflicts with Wilson’s primary mandate to find the most analogous state statute for the federal cause of action under consideration.

This error has only been compounded since it originated because other circuits have adopted the same reasoning. See 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). Recently, however, the Fourth Circuit broke ranks in Wolsky v. Medical College of Hampton Roads, 1 F.3d 222 (4th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 881, 127 L.Ed.2d 77 (1994), and it presented a cohesive analysis that was congruent with the primary direction of Wilson.

Wolsky filed suit against the Medical College claiming discrimination based upon his disability under section 504 of the Rehabilitation Act. Id. at 222. The district court had followed the precedent of other circuits in determining that the statute of limitations for state personal injury actions should apply to Rehabilitation Act claims. Id. at 224. The Fourth Circuit, following Wilson, began its analysis by recognizing that the central issue was the selection of “the most appropriate” or “the most analogous” state statute of limitations to apply. Id. at 223. It noted that the Wilson Court held that section 1983 claims were most closely analogous to personal injury actions. Id. Moreover, the Court had extended this same reasoning to section 1981 claims in Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987). Id. Nonetheless, the Fourth Circuit refused to analogize the Rehabilitation Act to section 1983 or section 1981 claims because Wilson directed the courts to look to the most appropriate or analogous state statute and its corresponding statute of limitations, not the most analogous federal statute. Id. at 224. After examining Virginia state law, the court determined that the Virginia Rights of Persons with Disabilities Act was the most analogous statute to the Rehabilitation. Act, and thus the court applied its statute of limitations to Wolsky’s claim. Id. at 225.

Southerland argues that if the admonition of Wilson was followed in this case, then analysis of Kentucky law would reveal that the Kentucky Equal Opportunities Act, Ky. Rev.Stat. Ann. § 207.150 (Baldwin 1993), is the most analogous state statute to the Rehabilitation Act. I agree.

In pertinent part, the Equal Opportunities Act states the following:

(1) No employer shall fail or refuse to hire, discharge or discriminate against any handicapped individual with respect to wages, rates of pay, hours, or other terms and conditions of employment because of the person’s physical handicap unless the handicap restricts the individual’s ability to *259engage in the particular job or occupation for which he or she is eligible....

Id. Although the Federal Rehabilitation Act is broader in its scope of protection, the Kentucky Equal Opportunities Act, like the Rehabilitation Act helps to prevent employers from discriminating against handicapped individuals in employment because of their handicap. Clearly, under Kentucky law, the Kentucky Equal Opportunities Act is the most analogous state statute to the Federal Rehabilitation Act.

Contrary to this assertion, the majority in this case adopts the reasoning of the Hall court because “[t]he Kentucky Equal Opportunities Act is not modeled on the [Fjederal Rehabilitation Act.” See Op. at 255 (emphasis added). In this determination, the majority relied on a portion of the Fourth Circuit’s analysis in Wolsky. Id. The Fourth Circuit was aided in its effort to find the most analogous state statute because the Virginia Rights of Persons with Disabilities Act was clearly modeled on the Rehabilitation Act. 1 F.3d at 224. But this does not mean that the most analogous state statute must be modeled on the Rehabilitation Act or that its scope of protection must be as broad as the federal statute. Wilson only directed the courts to look to the most appropriate or analogous state statute and its corresponding statute of limitations. It did not mandate that in the absence of a state statute modeled upon the federal provision, courts should default to the state statute of limitations for personal injury actions.

Again relying on Wolsky, the majority in this case further refused to find that the Kentucky Equal Opportunities Act was the most analogous state statute because “the Kentucky statute [did] not contain its own statute of limitations.” Op. at 255. Although the Virginia Rights of Persons with Disabilities Act happened to contain its own statute of limitations, see Wolsky, 1 F.3d at 224, Wilson does not mandate that the most analogous state statute must contain its own statute of limitations before it can be applied to a Rehabilitation Act claim. Rather, Wilson simply directs the courts to select the most appropriate or most analogous state statute of limitations. 471 U.S. at 267-68, 275, 105 S.Ct. at 1942-43, 1946.

A brief perusal of Kentucky law indicates that Kentucky courts have consistently held that the applicable statute of limitations for statutes of a civil rights nature is the five-year period of Ky.Rev.Stat. Ann. § 411.130(2). See Clifton v. Midway College, 702 S.W.2d 835, 837 (Ky.1985); Pike v. Harold (Chubby) Baird Gate Co., 705 S.W.2d 947, 948 (Ky.Ct.App.1986) (claiming wrongful termination in violation of section 342.197 of Kentucky Revised Statutes). Indeed, one court has specifically addressed the applicable statute of limitations for claims brought pursuant to the Kentucky Equal Opportunities Act. Day v. Alcan Aluminum Corp., 675 F.Supp. 1508, 1511 (W.D.Ky.1987). The Day court held that the appropriate period is five years as prescribed in Ky.Rev.Stat. Ann. § 411.130(2) (Baldwin 1993).

Based on this analysis, I agree with South-erland that she should have five years to file her Federal Rehabilitation Act claim. South-erland Br. at 27-28. Thus, her claim would not be time barred. Nonetheless, our hands are tied by the precedent in Hall.