The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Norah McCann King
This matter is before the Court on Defendants' Motion to Modify the Definition of Class I (the Opt-Out Class) (Doc. # 59), Plaintiffs' Memorandum in Opposition to Defendants' Motion (Doc. # 62), and Defendants' Reply (Doc. # 63). For the reasons that follow, the Court GRANTS Defendants' motion.
Plaintiffs allege class claims under 42 U.S.C. § 1983 ("Section 1983") for violations of the First, Fifth, and Fourteenth Amendments to the United States Constitution, and class claims under the Rehabilitation Act of 1973, 29 U.S.C. § 790 et seq. ("Rehabilitation Act") against the City of Columbus, Ohio and several supervisors employed by the City. On August 22, 2008, this Court certified two classes:
CLASS I All employees of the City of Columbus, Division of Police, subject to the enforcement of Division Directive 3.07, who, since 2004 through present, pursuant to the Directive, have been required to disclose confidential medical information to supervisory personnel.
CLASS II All current employees of the City of Columbus, Division of Police, subject to the enforcement of Division Directive 3.07.
Pursuant to this Court's decision, the parties have prepared a notice to be sent to potential Class I members ("Notice to Class I"). In preparing the Notice to Class I, Defendants contend that they "recognized that the currently proposed Notice does not include correct information as to the limitations period for claims under Section 1983 and the Rehabilitation Act." (Doc. # 59 at 2.) Thus, Defendants request that the Court revise the definition of Class I to reflect the two year statute of limitations that is required for Section 1983 and Rehabilitation Act claims. Specifically, Defendants ask that "January 2004" be removed from the definition and that it be replaced with "December 4, 2005."
Neither Section 1983 nor the Rehabilitation Act has a built in statute of limitations; federal law instead borrows a limitations period from the most closely analogous statute of limitations of the state in which the claim arose. Wilson v. Garcia, 47 U.S. 261 (1985). In Ohio, the law is well settled that the two year personal injury limitation applies to Section 1983 claims. Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989). Also, the proper statute of limitations for a Rehabilitation Act claim is the same state personal injury statute applicable to Section 1983 Southerland v. Hardaway Mgmt. Co., 41 F.3d 250, 255 (6th Cir. 1994). However, the date on which the statute of limitations begins to run in this action is a question of federal law. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984) (citations omitted).
Here, Plaintiffs filed the original complaint on December 4, 2007. Thus, unless this Court accepts Plaintiffs' argument, Plaintiffs' claims against Defendants are time barred if they accrued prior to December 4, 2005. To escape the limitations period, Plaintiffs argue that the continuing violations doctrine operates to toll the two year limitation. Specifically, Plaintiffs contend that there should be no bar to any claim that has accrued since the inception of Directive 2.07 based on this doctrine. This Court, however, disagrees.
The continuing violation doctrine is a narrow exception to the ordinary rule that statute of limitations begins to run at the time the alleged discriminatory acts occurred. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 857 (6th Cir. 2003). The doctrine has the effect of preserving claims based on incidents that occurred outside of the limitations period. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). The United States Court of Appeals for the Sixth Circuit cautions that "[p]revious 'continuing violation' law must be reexamined*fn1 in light of the [United States] Supreme Court's recently imposed limits on the viability of the doctrine." Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (citing to Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).
In Morgan, the Supreme Court held that when an employee seeks redress for discrete acts of discrimination or retaliation, the continuing violation doctrine may not be invoked to allow recovery for acts that occurred outside the filing period. See Morgan, 536 U.S. at 114. "[D]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision ...