Barbara Fowler, individually, and on behalf of a group of similarly situated individuals v. Upmc Shadyside

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4285
___________
BARBARA FOWLER,
individually, and on behalf of a group of
similarly situated individuals,
Appellant
v.
UPMC SHADYSIDE; UPMC,
doing business as
UNIVERSITY OF PITTSBURGH
MEDICAL CENTER
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 07-cv-00807)
District Judge: The Honorable Arthur J. Schwab
___________
ARGUED MAY 20, 2009
BEFORE: FUENTES, JORDAN,

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2
and NYGAARD, Circuit Judges.
(Filed: August 18, 2009)
___________
Gregory G. Paul, Esq. (Argued)
Equality at Work
409 Broad Street, Suite 270
Sewickley, PA 15143
Counsel for Appellant
Pamela G. Cochenour, Esq. (Argued)
Pietragallo, Gordon, Alfano, Bosick & Raspanti
301 Grant Street
One Oxford Centre, 38 Floorth
Pittsburgh, PA 15219
Counsel for Appellee
___________
OPINION OF THE COURT
_________
NYGAARD, Circuit Judge.
In this appeal we are asked to determine whether the
Appellant, Barbara Fowler, was too late in filing her
discrimination claims against her employer, UPMC Shadyside
Hospital. Fowler charged UPMC Shadyside with violating her

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3
rights under the Rehabilitation Act. The District Court
dismissed Fowler’s complaint before any responsive pleading
was filed or discovery took place, finding it time-barred.
Alternatively, the District Court determined that Fowler’s
complaint did not allege a disability under the Rehabilitation Act
and that claims under the Act are inappropriate for class action
litigation. We will vacate the dismissal and remand the cause.
I.
The relevant facts underlying this appeal are not
complicated and we take them directly from Fowler’s complaint.
Fowler was injured on the job while employed by UPMC as a
janitor/housekeeper at Shadyside Hospital. She was injured on
April 22, 2002 and was placed on Family/Medical Leave and
short-term disability. After she was released by her doctor to
perform sedentary work, UPMC provided Fowler with a light-
duty clerical position. However, UPMC eliminated this position
on August 29, 2003. Fowler avers in her complaint that before
UPMC eliminated her clerical position she applied for a similar
job but was never contacted by UPMC about that position.
UPMC terminated her employment on September 24, 2003.
Compared to the factual history, the procedural history is
more complex. Fowler filed her complaint on June 14, 2007.
She maintains, however, that she first asserted her claims by
filing an amended complaint in another action, Tish v. Magee
Woman's Hospital of UPMC, No. 06-820, 2007 WL 1221137
(W.D. Pa. June 21, 2006). The plaintiff in that case, Tish, had
previously attempted to join in yet another case, Bolden v.
Magee Woman's Hospital of UPMC, No. 05-1063, 2007 WL
1228479 (W.D. Pa. Aug. 1, 2005). The plaintiff in Bolden had
sought leave of court to add Tish as an additional named

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4
plaintiff and to include class action allegations asserting that
UPMC has a pattern or practice of failing to transfer employees
on disability leave in violation of the Americans with
Disabilities Act and the Rehabilitation Act. Judge Terrence F.
McVerry denied that motion, and severed the parties, directing
that “the claims of [Tish], as well as the claims of any other
potential plaintiffs who allegedly suffered a similar sort of
wrong, should be filed as individual cases, and not as a class
action.” Tish, 2007 WL 1221137, at *8. Fowler re-filed a
complaint pursuant to Judge McVerry's orders on June 14,
2007.
The District Court, per Judge Arthur J. Schwab,
dismissed Fowler’s complaint, finding that it was time-barred by
the Rehabilitation Act’s general two-year statute of limitations.
The District Court also determined that Fowler’s restriction to
sedentary work did not constitute a disability under the
Rehabilitation Act and that Fowler’s class action allegations are
not appropriate claims under the Act.
We review a district court’s decision granting a motion
to dismiss under a plenary standard. See Evancho v. Fisher, 423
F.3d 347, 350 (3d Cir. 2005). The District Court had subject
matter jurisdiction under 28 U.S.C. § 1331 because Fowler’s
causes of action arise under federal law. We have jurisdiction
under 28 U.S.C. § 1291 because this is an appeal from a final
order.
II.
We first must determine whether a two-year or a four-
year statute of limitations applies to Fowler’s failure-to-transfer

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While the District Court in this matter applied a two-1.
year statute of limitations, other District Courts have not. See
e.g. Walstrom v. City of Altoona, No. 06-081, 2008 WL
5411091 (applying a four-year statute of limitations); Chedwick
v. UPMC, No. 07-806, 2007 WL 4390327 (applying a four-year
statute of limitations).
The Rehabilitation Act makes the “remedies,2.
procedures and rights” set forth in Title VI of the Civil Rights
Act of 1964 available to those whose substantive rights under
Section 504 of the Rehabilitation Act are violated. 29 U.S.C. §
794a(a)(2). Title VI provides for the termination of federal
funding if a covered entity fails to comply with its substantive
provisions. 42 U.S.C. § 2000d-1. Title VI contains no express
private right of action. Nonetheless, the Supreme Court has
found an implied private right of action within Title VI, which
has been acknowledged by Congress in subsequent statutory
amendments. Barnes v. Gorman, 536 U.S. 181, 185 (2002).
Since Congress has incorporated Title VI's remedial scheme into
the Rehabilitation Act, plaintiffs alleging violations of Section
504 have a private right of action under federal law. Three
(continued...)
5
claim. There is disagreement among the District Courts in this
Circuit as to the appropriate time limitation in this type of case.1
We resolve this tension today in favor of a four-year limitation
period.
Fowler alleges violations of the Rehabilitation Act, 29
U.S.C. § 794 et seq. Congress passed the Rehabilitation Act in2

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(...continued)2.
Rivers Center for Independent Living, Inc. v. Housing Authority
of Pittsburgh, 382 F.3d 412, 425-426 (3d Cir. 2004).
6
1973 to make certain that no individual with a disability would
“be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a).
The Act does not include an express limitation clause. We have,
therefore, borrowed the statute of limitations of the most
analogous state law cause of action. Disabled in Action of
Pennsylvania v. SEPTA, 539 F.3d 199, 208 (3d Cir. 2008)
(citing North Star Steel Co. v. Thomas, 515 U.S. 29, 33-34
(1995); Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). In the
Disabled in Action case, for example, we held that a two-year
statute of limitations applied to claims brought under § 504 of
the Rehabilitation Act because the discrimination claims were
analogous to a personal injury action under Pennsylvania law.
Were Fowler alleging discrimination claims in this case of the
type actionable under § 794(a), a two-year limitation would also
be appropriate.
Rehabilitation Act claims that allege a “failure-to-
transfer,” however, present a more difficult question. UPMC
argues that these claims are also subject to Pennsylvania's
two-year statute of limitations, asking us to again “borrow” the
two-year statute of limitations applicable to similar claims
arising under Pennsylvania law. Fowler contends that her
failure-to-transfer claims are subject to the four-year limitation
clause established by 28 U.S.C. § 1658, which provides that:

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(a) Except as otherwise provided by law, a civil
action arising under an Act of Congress enacted
after the date of the enactment of this section
[enacted Dec. 1, 1990] may not be commenced
later than 4 years after the cause of action accrues.
28 U.S.C. § 1658(a). In Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 369 (2004), the Supreme Court resolved this dispute by
finding a four-year statute of limitations appropriate. Reasoning
that § 1658 applies to any claim arising under an act of Congress
which was enacted after December 1, 1990, the Supreme Court
concluded that hostile work environment, wrongful termination,
and failure-to-transfer claims under § 1981 were governed by §
1658 because they were in essence “enacted” by the 1991 Civil
Rights Act. Jones, 541 U.S. at 382 (quoting 42 U.S.C. §
1981(b)). This is so even where the original statute had been
enacted before 1991. The Supreme Court explained:
Nothing in the text or history of §1658 supports
an interpretation that would limit its reach to
entirely new sections of the United States Code.
An amendment to an existing statute is no less an
“Act of Congress” than a new, stand-alone statute.
What matters is the substantive effect of an
enactment --- the creation of new rights of action
and corresponding liabilities --- not the format in
which it appears in the Code.

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Jones abrogated our decision in Zubi v. AT&T Corp.,3.
219 F.3d 220 (3d Cir. 2000).
Fowler’s complaint avers (and UPMC does not4.
dispute) that UPMC receives federal financial assistance.
8
Id. at 381. From this point, our inquiry turns on chronology.3
We must determine whether failure-to-transfer claims under the
Rehabilitation Act were enacted after December 1, 1990.
The Rehabilitation Act, originally enacted in 1973,
provides that “No otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of her
or his disability, be excluded from 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). This general prohibition against disability-based
discrimination by recipients of federal funding was in effect
well before December 1, 1990. Employers were required to4
make “reasonable accommodation” for a disabled employee’s
limitations. See Nathanson v. Medical College of Pennsylvania,
926 F.2d 1368, 1383 (3d Cir. 1991). Employers were not
required to transfer a disabled employee to a vacant position as
an accommodation of his or her disability. See School Board of
Nassau County v. Arline, 480 U.S. 273, 289 n.19 (1987). This
changed, however, with the enactment of the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq.

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9
The ADA identified the reassignment of a disabled
employee to a vacant position as a “reasonable accommodation”
of an employee’s disability. 42 U.S.C. § 12111(9). Under the
ADA’s Title I, an employer’s failure to transfer a disabled
employee to a vacant position constitutes discrimination. Id.
After the ADA went into effect, Congress amended the
Rehabilitation Act by incorporating the ADA’s substantive
standards for determining whether a covered employer has
engaged in illegal discrimination. This conforming amendment
was codified at 29 U.S.C. § 794(d), which provides as follows:
(d) Standards used in determining violation of
section. The standards used to determine whether
this section has been violated in a complaint
alleging employment discrimination under this
section shall be the standards applied under title I
of the Americans with Disabilities Act of 1990
(42 U.S.C. 12111 et seq.) and the provisions of
sections 501 through 504, and 510, of the
Americans with Disabilities Act of 1990 (42
U.S.C. 12201-12204 and 12210), as such sections
relate to employment.
29 U.S.C. § 794(d). This provision of the Rehabilitation Act
was signed into law on October 29, 1992. The standards for
determing whether a covered employer has violated § 794(d)
have been coextensive with the standards for determining
whether a covered employer has violated the ADA ever since.
Therefore, employers who are covered under § 794(a) of the
Rehabilitation Act are required to transfer a disabled employee
to vacant positions for which she is qualified where necessary to

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10
accommodate her disability. Since failure-to-transfer claims
can be brought as a result of this statutory amendment — an
amendment enacted after December 1, 1990 — they are subject
to a four-year limitation of actions.
Our holding on this point is in line with our
jurisprudence. Although the statute of limitations was not at
issue, we have previously recognized § 794(d) as the source of
a disabled employee's right to be reassigned to a vacant position
under the Rehabilitation Act. In Shiring v. Runyon, 90 F.3d
827, 831-32 (3d Cir. 1996), we noted that no such right had
existed under the Rehabilitation Act before Congress enacted §
794(d). Id. at 831. Shiring further supports our conclusion that
the Rehabilitation Act would not have required UPMC to
reassign Fowler to a vacant position before 1992. Given the
holdings in Jones and Shiring, it is clear that Rehabilitation Act
claims alleging a failure-to-transfer are governed by the
four-year statute of limitation in § 1658, and not a borrowed
two-year limitation.
We use Fowler’s termination date — September 24, 2003
— as the starting date for statute of limitations purposes. See
e.g. Bonham v. Dresser Industries, Inc. 569 F.2d 187, 192 (3d
Cir. 1977) (“[Statute of limitations] period does not begin to run
until the employee knows, or as a reasonable person should
know, that the employer has made a final decision to terminate
him, and the employee ceases to render further services to the
employer.”); see also Dvorak v. Mostardi Platt Associates, Inc.,
289 F.3d 479, 486 (7th Cir. 2002). Fowler, therefore, was
required to file her complaint no later than September 24, 2007.
The District Court used the date Fowler re-filed her complaint,

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The District Court’s use of the June 14, 2007 date was5.
error, albeit a harmless one, given the four-year statute of
limitations. Fowler’s claims were first raised against UPMC on
October 25, 2006 when she was listed as a named plaintiff on an
amended complaint filed in the Tish action. Fowler (as well as
other plaintiffs) were severed by Judge McVerry pursuant to
FED.R.CIV.P. 21, in his April 24, 2007 order.
Federal Rule of Civil Procedure 20(a) permits “joinder”
— the joining together of more than one party — if the
plaintiff's claim “aris[es] out of the same transaction ... and if
any question of law or fact common to all defendants will arise
in the action.” Misjoinder, on the other hand, occurs when there
is no common question of law or fact or when, as here, the
events that give rise to the plaintiff's claims against defendants
do not stem from the same transaction. Misjoinder is governed
by FED.R.CIV.P. 21, which reads:
Misjoinder of parties is not ground for dismissal
of an action. Parties may be dropped or added by
order of the court on motion of any party or of its
own initiative at any stage of the action and on
such terms as are just. Any claim against a party
may be severed and proceeded with separately.
(continued...)
11
June 14, 2007, to calculate the statute of limitation. Using that
date and a four-year limitation period, Fowler’s complaint was
timely filed. We will vacate the District Court’s dismissal of5

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(...continued)5.
To remedy misjoinder, then, a court may not simply dismiss a
suit altogether. Instead, the court has two remedial options: (1)
misjoined parties may be dropped “on such terms as are just”; or
(2) any claims against misjoined parties “may be severed and
proceeded with separately.” Fed.R.Civ.P. 21. When a court
“severs” a claim against a defendant under FED.R.CIV.P. 21, the
suit simply continues against the defendant in another guise.
White v. ABCO Eng'g Corp., 199 F.3d 140, 145 n. 6 (3d Cir.
1999). The statute of limitations is held in abeyance, and the
severed suit can proceed so long as it initially was filed within
the limitations period. Id. See also DirecTV, Inc. v. Leto, 467
F.3d 842, 844-45 (3d Cir. 2006). Fowler’s complaint
acknowledges that she was initially a part of the Tish litigation.
At paragraph three of her complaint, Fowler avers that “this case
was originally filed as an Amended Complaint on October 30,
2006 under [the Tish case]. Therefore, the correct working-date
for Fowler’s complaint should be October 25, 2006, not June 14,
2007 as the District Court believed. This error is harmless,
however, since either filing date is within the four-year statute
of limitations, which would have run on September 23, 2007.
12
her complaint on statute of limitation grounds. Because the
District Court additionally dismissed Fowler’s complaint on the
basis that her restriction to sedentary work did not sufficiently
constitute a disability, our standard of review requires us to
examine the merits of her claims without any deference to the
District Court’s decision. Phillips v. County of Allegheny, 515
F.3d 224, 230 (3d Cir. 2008). Before reviewing the merits of

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13
Fowler’s allegations, however, we are obligated to discuss
recent changes in pleading standards.
III.
A.
Standards of pleading have been in the forefront of
jurisprudence in recent years. Beginning with the Supreme
Court’s opinion in Bell Atlantic Corp. v. Twombly, 550 U. S.
544 (2007), continuing with our opinion in Phillips, supra., and
culminating recently with the Supreme Court’s decision in
Ashcroft v. Iqbal, 129 S.Ct. 1955 (May 18, 2009), pleading
standards have seemingly shifted from simple notice pleading to
a more heightened form of pleading, requiring a plaintiff to
plead more than the possibility of relief to survive a motion to
dismiss.
Iqbal — decided two days before this case was argued,
but acknowledged by counsel during oral argument — centered
on a prison inmate’s allegations that certain government
defendants violated his constitutional rights by discriminating
against him on the basis of his religion. The Supreme Court’s
opinion makes clear that the Twombly “facial plausibility”
pleading requirement applies to all civil suits in the federal
courts. After Iqbal, it is clear that conclusory or “bare-bones”
allegations will no longer survive a motion to dismiss:
“threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal,
129 S.Ct. at 1949. To prevent dismissal, all civil complaints
must now set out “sufficient factual matter” to show that the
claim is facially plausible. This then “allows the court to draw

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14
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1948. The Supreme Court’s ruling
in Iqbal emphasizes that a plaintiff must show that the
allegations of his or her complaints are plausible. See Id. at
1949-50; see also Twombly, 505 U.S. at 555, & n.3.
Iqbal additionally provides the final nail-in-the-coffin for
the “no set of facts” standard that applied to federal complaints
before Twombly. See also Phillips, 515 F.3d at 232-33. Before
the Supreme Court’s decision in Twombly, and our own in
Phillips, the test as set out in Conley v. Gibson, 355 U.S. 41,
45-46 (1957), permitted district courts to dismiss a complaint for
failure to state a claim only if “it appear[ed] beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Id. Under this “no set of
facts” standard, a complaint effectively could survive a motion
to dismiss so long as it contained a bare recitation of the claim’s
legal elements.
The Supreme Court began its rejection of that test in
Twombly, holding that a pleading offering only “labels and
conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555; Phillips,
515 F.3d at 232. In Phillips, we discussed the appropriate
standard for evaluating Rule 12(b)(6) or 12(b)(1) motions in
light of the anti-trust context presented in Twombly, holding that
the acceptable statement of the standard remains: “courts accept
all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Phillips, 515 F.3d at 233 (internal quotations

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15
and citation omitted). The Supreme Court’s opinion in Iqbal
extends the reach of Twombly, instructing that all civil
complaints must contain “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Iqbal, slip
op. at 14.
Therefore, after Iqbal, when presented with a motion to
dismiss for failure to state a claim, district courts should conduct
a two-part analysis. First, the factual and legal elements of a
claim should be separated. The District Court must accept all of
the complaint’s well-pleaded facts as true, but may disregard
any legal conclusions. Id. Second, a District Court must then
determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “plausible claim for
relief.” Id. at 15. In other words, a complaint must do more than
allege the plaintiff’s entitlement to relief. A complaint has to
“show” such an entitlement with its facts. See Phillips, 515 F.3d
at 234-35. As the Supreme Court instructed in Iqbal, “[w]here
the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged —
but it has not ‘show[n]’ — ‘that the pleader is entitled to
relief.’” Iqbal, slip op. at 14. This “plausibility” determination
will be “a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id.
Inasmuch as this is an employment discrimination case,
we asked the parties to comment on the continued viability of
the Supreme Court’s decision in Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002). In Swierkiewicz, the Supreme Court held
that a complaint alleging unlawful employment discrimination
did not have to satisfy a heightened pleading requirement. The

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16
complaint in that case was said to be sufficient because it
“detailed the events leading to [the plaintiff's] termination,
provided relevant dates, and included the ages and nationalities
of at least some of the relevant persons involved with his
termination.” 534 U.S. at 514. The Supreme Court in
Swierkiewicz expressly adhered to Conley’s then-prevailing “no
set of facts” standard and held that the complaint did not have
to satisfy a heightened standard of pleading. Id. Swierkiewicz
and Iqbal both dealt with the question of what sort of factual
allegations of discrimination suffice for a civil lawsuit to survive
a motion to dismiss, but Swierkiewicz is based, in part, on
Conley, which the Supreme Court cited for the proposition that
Rule 8 “relies on liberal discovery rules and summary judgment
motions to define disputed facts and issues and to dispose of
unmeritorious claims.” 534 U.S. at 512. We have to conclude,
therefore, that because Conley has been specifically repudiated
by both Twombly and Iqbal, so too has Swierkiewicz, at least
insofar as it concerns pleading requirements and relies on
Conley.
The demise of Swierkiewicz, however, is not of
significance here. We had already extended our holding in
Phillips, to the employment discrimination context. In
Wilkerson v. New Media Technology Charter School, Inc., 522
F.3d 315 (3d Cir. 2008), a terminated charter-school teacher
brought an action claiming that she was fired for retaliation and
her religious beliefs. The teacher pleaded that she was fired
because of her “‘Christian religious beliefs,’ her refusal to
engage in the ‘libations ceremony,’ and her ‘complaints related
to the ceremony.’” Id. at 318. We held that the “plausibility
paradigm announced in Twombly applies with equal force to

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We note that the District Court inexplicably foreclosed6.
Fowler from an opportunity to amend her complaint so as to
provide further specifics --- in the event the court found such
details needed. The District Court’s Case Management order of
September 27, 2007 provided that “amended pleadings” would
be due by October 24, 2007. Yet, the District Court dismissed
Fowler’s complaint “with prejudice” on October 19, 2007.
Although the District Court erred, see District Council, 47 v.
Bradley, 795 F.2d 310 (3d Cir.1986), it is of no consequence
because Fowler’s complaint sufficiently pleaded her claims.
17
analyzing the adequacy of claims of employment
discrimination.” Id. at 322. Therefore, with these new
standards in mind, we turn to the sufficiency of the allegations
in Fowler’s complaint. Fowler’s allegations, of course, are
assumed to be true. See Pryor v. National Collegiate Athletic
Association, 288 F.3d 548, 559 (3d Cir. 2002).
B.
We conclude that Fowler’s complaint has alleged
sufficient facts to state a plausible failure-to-transfer claim.
Under Twombly and Iqbal, we start with the question of whether
Fowler has made factual allegations that state a plausible ground
for relief. Twombly, 550 U.S. at 564 n. 8. Although Fowler’s
complaint is not as rich with detail as some might prefer, it need
only set forth sufficient facts to support plausible claims. Id.6
Taking her allegations as true, we find (1) that she was
injured at work and that, because of this injury, her employer

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18
regarded her as disabled within the meaning of the
Rehabilitation Act; (2) that there was an opening for a telephone
operator at UPMC, which was available prior to the elimination
of her position and for which she applied; (3) that she was not
transferred to that position; (4) that UPMC never contacted her
about the telephone operator position or any other open
positions; and (5) that Fowler believed UPMC’s actions were
based on her disability. Under the “plausibility paradigm” we
spoke of in Wilkerson, these averments are sufficient to give
UPMC notice of the basis for Fowler’s claim. See 522 F.3d at
322. The complaint pleads how, when, and where UPMC
allegedly discriminated against Fowler. She avers that she was
injured on the job and that her doctor eventually released her to
perform “sedentary work.” She pleads that UPMC gave her a
light-duty clerical position. She also avers that before the
elimination of her light duty clerical position, she applied for a
telephone operator position, but “was never contacted by UPMC
regarding that position.” Fowler further alleges that she
contacted “Susan Gaber, a Senior Human Resources Consultant
with the Defendant, UPMC Shadyside, regarding [a] number of
vacant sedentary jobs,” but that she was “never contacted by
UPMC regarding any open positions.” Fowler’s complaint
alleges that UPMC “failed to transfer” her to another position in
September of 2003. Fowler further pleaded that she was
“terminated because she was disabled” and that UPMC
discriminated against her by failing to “transfer or otherwise
obtain vacant and funded job positions” for her. The complaint
repeatedly references the Rehabilitation Act and specifically
claims she was terminated because of her disability. Therefore,
she has nudged her claims against UPMC “across the line from
conceivable to plausible.” Twombly, 55 U.S. at 570. The

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The Supreme Court’s decision in Twombly — and its7.
repudiation of Conley — was available to the District Court at
the time it dismissed Fowler’s complaint. Twombly was
announced on May 21, 2007 and the District Court dismissed
Fowler’s case on October 19, 2007.
19
factual allegations in Fowler’s complaint are “more than labels
and conclusions” or “a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 564. We have no
trouble finding that Fowler has adequately pleaded a claim for
relief under the standards announced in Twombly and Iqbal,
supra.
C.
As an alternative basis for dismissing Fowler’s
complaint, the District Court determined that her restriction to
sedentary work could not legally constitute a disability.
Although it applied an incorrect standard of review based on
Conley, supra., the District Court found that Fowler had failed
to sufficiently plead that she was disabled. Relying on our7
opinion in Marinelli v. City of Erie, 216 F.3d 354 (3d Cir. 2000),
the District Court determined that a restriction to “sedentary”
duty is only a restriction from a class of jobs, not a disability in
and of itself. See Marinelli, 216 F.3d at 364. This reliance was
misplaced. The claims at issue in Marinelli and the cases we
cited therein were disposed of at either the summary judgment
or the judgment as a matter of law stage of the litigation. It is
axiomatic that the standards for dismissing claims under
FED.R.CIV.P. 12(b)(6) and granting judgment under either
FED.R.CIV.P. 50 or FED.R.CIV.P. 56 are vastly different. As we

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A motion made pursuant to Fed.R.Civ.P. 50 should be8.
granted only if, viewing the evidence in the light most favorable
to the nonmovant and giving it the advantage of every fair and
reasonable inference, there is insufficient evidence from which
a jury reasonably could find liability. In determining whether the
evidence is sufficient to sustain liability, the court may not
weigh the evidence, determine the credibility of witnesses, or
substitute its version of the facts for the jury's version. See
Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d
Cir. 1992), cert. denied, 507 U.S. 921 (1993).
20
have explained, “a motion for summary judgment is different in
critical respects from a motion to dismiss for failure to state a
claim. In addition to the fact that a plaintiff presumably has had
an opportunity to obtain admissions during discovery, a motion
for summary judgment is reviewed under a much more stringent
standard than a motion to dismiss for failure to state a claim.”
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 863 n.17 (3d Cir. 1994).
“[A] well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts alleged is
improbable and that a recovery is very remote and unlikely.”
Twombly, 550 U.S. at 556 (internal quotations omitted).8
At this stage of the litigation, the District Court should
have focused on the appropriate threshold question — namely
whether Fowler pleaded she is an individual with a disability.
The District Court and UPMC instead focused on what Fowler
can “prove,” apparently maintaining that since she cannot prove
she is disabled she cannot sustain a prima facie failure-to-
transfer claim. A determination whether a prima facie case has

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been made, however, is an evidentiary inquiry — it defines the
quantum of proof plaintiff must present to create a rebuttable
presumption of discrimination. See Powell v. Ridge, 189 F.3d
387, 394 (3d Cir. 1999) (overruled on other grounds). Even
post-Twombly, it has been noted that a plaintiff is not required
to establish the elements of a prima facie case but instead, need
only put forth allegations that “raise a reasonable expectation
that discovery will reveal evidence of the necessary element.”
See Graff v. Subbiah Cardiology Associates, Ltd. No. 08-207,
2008 WL 2312671 (W.D. Pa. June 4, 2008) citing Phillips, 515
F.3d at 234. Under the Federal Rules of Civil Procedure, an
evidentiary standard is not a proper measure of whether a
complaint fails to state a claim. Powell, 189 at 394.
Fowler is not required, at this early pleading stage, to go
into particulars about the life activity affected by her alleged
disability or detail the nature of her substantial limitations. Her
complaint identifies an impairment, of which UPMC allegedly
was aware and alleges that such impairment constitutes a
disability under the Rehabilitation Act. Furthermore, her alleged
limitation to sedentary work plausibly suggests that she might be
substantially limited in the major life activity of working. See 29
U.S.C. § 705(20)(B); 29 C.F.R. §§ 1630.2(i), (j)(3); cf. Sutton
v. United Air Lines, Inc., 527 U.S. 471, 491 (1999) (“When the
major life activity under consideration [in a disability
discrimination suit] is that of working, the statutory phrase
‘substantially limits’ requires, at a minimum, that plaintiffs
allege they are unable to work in a broad class of jobs.”). Of
course, Fowler must ultimately prove that she is substantially
limited in a recognized major life activity to prevail on her
claim. At the pleading stage, however, Fowler’s allegation

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regarding disability is sufficient. See Equal Employment
Opportunity Comm'n v. J.H. Routh Packing Co., 246 F.3d 850,
854 (6th Cir. 2001) (“[S]o long as the complaint notifies the
defendant of the claimed impairment, the substantially limited
major life activity need not be specifically identified in the
pleading.”). This is so even after Twombly and Iqbal.
D.
The District Court also dismissed Fowler’s complaint
because it concluded that Rehabilitation Act claims are
inconsistent with class action litigation. We need not determine
whether such claims are categorically inappropriate for class
action litigation because the District Court also found that
Fowler had not complied with Local Rule 23.1(c) which
requires a plaintiff to move “for a determination . . . as to
whether the case is to be maintained as a class action” within
ninety days after filing a complaint. Fowler did not file such a
motion, instead raising her request for class certification in a
sur-reply brief to UPMC’s motion to dismiss — well after the
ninety-day period had expired. We are convinced that the
District Court did not abuse its discretion in denying a motion
for a class action determination which was untimely under the
local rule.
IV.
As we have stated before, standards of pleading are not
the same as standards of proof. Phillips, 515 F.3d at 246. We
express no opinion on whether Fowler will ultimately be able to
prove her claims. We will vacate the order dismissing Fowler’s

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cause, and remand for further proceedings, albeit not as a class
action.

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