FREEMAN v. PHILADELPHIA HOUSING AUTHORITY et al
MEMORANDUM AND/OR OPINION RE: DEFENDANTS MOTIONS TO DISMISS THE COMPLAINT (DOC. NOS.8 & 9). SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 8/8/2012. 8/9/2012 ENTERED AND COPIES E-MAILED.(kk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AUTHORITY, FRED PASOUR, and
August 8, 2012
Currently pending before the Court are (1) the Motion to Dismiss of Defendant Fred
Pasour, and (2) the Motion to Dismiss of Defendants Philadelphia Housing Authority and Stacey
Thomas. For the following reasons, the Motions are granted in part and denied in part.
According to the facts set forth in the Complaint, Plaintiff Thomas Freeman began
working at the Philadelphia Housing Authority (“PHA”) in 1992, and was continuously
employed during that period of time as an Asset Manager I. (Compl. ¶ 17.) During his tenure at
PHA, Plaintiff suffered from diabetes and, in 2006, began experiencing problems with his
diabetic foot. (Id. ¶¶ 19–20.) Defendants were purportedly aware of Plaintiff’s diabetic
condition since at least 2006. (Id. ¶ 20.)
On May 8, 2009, Plaintiff left work early with a swollen foot and was admitted to Temple
University Hospital that same day. (Id. ¶ 21.) The physicians there diagnosed him with a
diabetic foot injury and instructed him to stay off the foot for one week. (Id. ¶ 22.)
Subsequently, on May 15, 2009, Defendant Stacey Thomas, PHA’s Labor Relations Coordinator,
received a Disability Statement from Dr. Leslie Robinson at Temple University Hospital
certifying that Plaintiff was diagnosed with “Diabetic Foot Injury.” (Id. ¶ 23.) Dr. Robinson
cleared Plaintiff to return to work without restrictions on May 18, 2009, and Plaintiff in fact
returned to work on that date. (Id.)
On June 5, 2009, while visiting PHA rental units, performing inspections, and collecting
rent at a PHA development, Plaintiff began to experience extreme foot pain. (Id. ¶ 24.) He
informed a manager that he was not feeling well and requested to leave work a half hour early.
(Id.) The following day, Plaintiff went to the emergency room at Temple University Hospital,
where he lost consciousness. (Id. ¶ 25.) When he woke up, his sugar level was very high and his
left foot was swollen. (Id.) Temple physicians explained to him that it was necessary to
amputate some of his toes. (Id. ¶ 26.) On June 7, 2009, Plaintiff underwent surgery and had
several toes on his left foot amputated. (Id. ¶ 27.) Defendant Thomas was informed about
Plaintiff’s condition the following day, at which time Thomas sent Plaintiff a letter
acknowledging his request for a leave of absence and informing him of his rights and obligations
under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. (Id. ¶¶ 28–29.)
Defendants also advised Plaintiff that he was required to submit a medical certification form in
order to qualify for FMLA leave. (Id. ¶ 29.)
After the initial surgery, the Temple physicians discovered that Plaintiff had gangrene and
required further surgeries for more amputations. (Id. ¶ 30.) Two more surgeries were
subsequently performed, on June 9, 2009 and June 11, 2009 respectively, resulting in the
amputation of all five toes on his left foot. (Id. ¶ 31.) On June 12, 2009, Plaintiff submitted his
Request for Leave of Absence form and the “Certification of Health Care Provider” form to
Defendant Thomas, signed by his physician and certifying that Plaintiff suffered a serious
medical condition and was unable to do any work for three to four months. (Id. ¶ 32.) Plaintiff
was fully discharged from Temple University Hospital during the last week of June 2009, and
was fitted with a boot that enabled him to walk with the aid of crutches or a cane. (Id. ¶¶ 33–34.)
Almost immediately upon discharge from Temple University Hospital, Plaintiff was
admitted to Hopkins Rehabilitation for approximately twenty days in order to rehabilitate his left
leg and foot. (Id. ¶ 35.) On July 14, 2009, he was discharged from Hopkins Rehabilitation. (Id.
¶ 36.) Upon leaving Hopkins, Plaintiff contacted and spoke with Defendant Thomas about his
condition, and informed Thomas that he was willing and able to return to work at the PHA. (Id.
¶ 38.) Thomas advised Plaintiff that his job would remain available to him for up to one year and
that Plaintiff could continue to use any sick and vacation time he had accumulated while on
leave. (Id. ¶ 39.) Upon the recommendation of his physician, Plaintiff then requested a desk job
as an accommodation for a couple of weeks so that his wound would fully heal. (Id.) Plaintiff
believed that this requested accommodation would not have imposed an undue hardship on
Defendant PHA since he could effectively complete his duties as Asset Manager I while sitting at
a desk. (Id. ¶ 40.) Nonetheless, Thomas informed Plaintiff that she would “get back to him”
regarding the accommodation. (Id. ¶ 41.)
In or around October or November 2009, Plaintiff was fitted with a new boot that enabled
him to walk without the aid of crutches or a cane. (Id. ¶ 37.) During the same time period, and
after several conversations, Thomas informed Plaintiff that he would have to speak with
Defendant Fred Pasour—PHA’s Acting General Counsel—about being cleared to return to work.
(Id. ¶¶ 11, 42.) In January 2010, after several unsuccessful attempts, Plaintiff finally got through
to Mr. Pasour, who asked Plaintiff if he could walk. (Id. ¶ 43.) Plaintiff responded that he could
walk and that his physician had cleared him to return to work. (Id.) Pasour, however, informed
Plaintiff that he could not return to work until PHA’s physician cleared him, and instructed
Plaintiff to schedule an appointment with Defendant Thomas to be seen by PHA’s physician.
(Id. ¶ 44.)
From January to February 2010, Plaintiff made several requests to Defendant Thomas to
schedule an appointment, and also attempted to call Defendant Pasour, all to no avail. (Id. ¶ 45.)
On February 17, 2010, Plaintiff received a letter from Defendant Pasour that his “Family Medical
Leave of Absence” had “expired.” (Id. ¶ 46.) According to Plaintiff, he was never informed by
PHA that he was on FMLA leave and, in fact, was unaware of his FMLA status until receipt of
this letter. (Id.) Indeed, he was repeatedly informed by Defendants, since June 2009, that he
could return to work when cleared. (Id.) Nonetheless, the letter went on to advise Plaintiff that
he was being terminated from employment, effective February 19, 2010. (Id. ¶ 47.) Ultimately,
following his termination, Plaintiff underwent amputation of his left leg slightly below the knee.
(Id. ¶ 19.)
On May 3, 2011, Plaintiff filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) for disability discrimination and retaliation. (Id. ¶ 48.) The
Complaint was jointly filed with the Pennsylvania Human Relations Commission (“PHRC”).
(Id.) On March 26, 2012, the EEOC issued a Right to Sue letter. (Id. ¶ 49.)
Plaintiff initiated the current litigation on March 21, 2012, setting forth seven causes of
action as follows: (1) violation of the Americans With Disabilities Act (“ADA”), 42 U.S.C. §
1201, et seq. against Defendant PHA (Count I); (2) retaliation under the ADA against Defendant
PHA (Count II); (3) failure to accommodate under the ADA against Defendant PHA (Count III);
(4) violation of the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., against
Defendant PHA (Count IV); (5) interference under the FMLA against Defendants Thomas and
Pasour (Count V); (6) violation of the Pennsylvania Human Relations Act (“PHRA”), 42 Pa.C.S.
§ 951, et seq., against Defendant PHA (Count VI); and (7) aiding and abetting discrimination and
retaliation under the PHRA against Defendants Thomas and Pasour (Count VII). (Compl. ¶¶
50–87.) Along with compensatory damages for emotional distress, loss of earnings, loss of
future earning power, back pay, front pay, interest, and liquidated damages, Plaintiff also seeks
punitive damages due to the alleged “outrageous, malicious, wanton, willful, reckless and
intentional” conduct by Defendants. (Id. ¶¶ 88–91.)
On June 6, 2012, Defendant Fred Pasour moved to dismiss Counts V and VII of
Plaintiff’s Complaint and Defendants PHA and Stacey Thomas moved to dismiss the entirety of
the Complaint. Plaintiff responded to both Motions on June 19, 2012, and Defendant Pasour
filed a Reply Brief on June 29, 2012. The Motions are now ripe for judicial review.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of
demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that “a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. at 555. It emphasized that it would not require a “heightened fact pleading of specifics,
but only enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
In the subsequent case of Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court
enunciated two fundamental principles applicable to a court’s review of a motion to dismiss for
failure to state a claim. First, it noted that “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
at 678. Thus, although “[Federal] Rule [of Civil Procedure] 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79.
Second, the Supreme Court emphasized that “only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at 679. “Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id.
Notwithstanding the foregoing, nothing in Twombly or Iqbal has altered some of the
fundamental underpinnings of the Rule 12(b)(6) standard of review. Arner v. PGT Trucking,
Inc., No. Civ.A.09-0565, 2010 WL 1052953, at *2 (W.D. Pa. Mar. 22, 2010); Spence v.
Brownsville Area Sch. Dist., No. Civ.A.08-0626, 2008 WL 2779079, at *2 (W.D. Pa. July 15,
2008). Federal Rule of Civil Procedure 8 requires only a short and plain statement of the claim
showing that the pleader is entitled to relief and need not contain detailed factual allegations.
Fed. R. Civ. P. 8; Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Further, the
court must “accept all factual allegations in the complaint as true and view them in the light most
favorable to the plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
Finally, the court must “determine whether, under any reasonable reading of the complaint, the
plaintiff may be entitled to relief.” Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d
As indicated above, Plaintiff’s Complaint faces two separate Motions to Dismiss, one
brought jointly by Defendants Stacey Thomas and the PHA, and one brought by Defendant Fred
Pasour. Defendants PHA and Thomas allege that Plaintiff’s Complaint fails in its entirety
because (1) Plaintiff did not comply with the applicable statute of limitations for the ADA,
FMLA, or PHRA; and (2) Plaintiff has not adequately pled a claim for violation of the FMLA.
Defendant Pasour joins in these arguments and, in addition, asserts that the Complaint against
him fails because: (1) Plaintiff’s interference claims under the FMLA do not plead any facts to
establish that Mr. Pasour exercised control over Plaintiff’s FMLA leave or otherwise had any
supervisory authority over him; and (2) to the extent Plaintiff could state a legally cognizable
cause of action against Mr. Pasour under either the FMLA or the PHRA, Plaintiff’s demand for
punitive damages must be dismissed because such damages are not available under either statute.
For clarity of discussion, the Court individually addresses the three statutes at issue and all
challenges to Plaintiff’s claims under each of those statutes.
Defendants initially contend that Plaintiff’s ADA claims are time-barred. The ADA does
not have its own statute of limitations, but rather adopts the “powers, remedies, and procedures,”
including the statute of limitations, of Title VII of the Civil Rights Act. 42 U.S.C. § 12117(a);
see also Churchill v. Star Enters., 183 F.3d 184, 190 (3d Cir. 1999) (explaining that Title VII
procedures set out in 42 U.S.C. § 2000e-5 apply to ADA claims). Title VII provides:
A charge under this section shall be filed within one hundred and eighty days after
the alleged unlawful employment practice occurred . . . except that in a case of an
unlawful employment practice with respect to which the person aggrieved has
initially instituted proceedings with a State or local agency with authority to grant
or seek relief from such practice or to institute criminal proceedings with respect
thereto upon receiving notice thereof, such charge shall be filed by or on behalf of
the person aggrieved within three hundred days after the alleged unlawful
employment practice occurred, or within thirty days after receiving notice that the
State or local agency has terminated the proceedings under the State or local law,
whichever is earlier, and a copy of such charge shall be filed by the Commission
with the State or local agency.
42 U.S.C. § 2000e-5(1) (emphasis added). As the United States Court of Appeals for the Third
Circuit has explained, “[u]nder Title VII, a charge of race discrimination in employment must be
filed with the EEOC within 180 days of the occurrence of the alleged unlawful employment
practice.” Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 469–70 (3d Cir.
2001) (citing 42 U.S.C. § 2000e-5(e)(1)). “If the complainant also initiates a complaint with a
parallel state agency . . . the period for filing the charge with the EEOC is extended to 300 days
from the day of the alleged unlawful employment practice.” Id. at 470. “Generally a judicial
complaint . . . will be dismissed for failure to exhaust administrative remedies if a supporting
EEOC charge was not filed within 180 or 300 days (depending on state law) of notification to the
employee of the adverse employment action.” Ruehl v. Viacom, Inc., 500 F.3d 387, 382 (3d Cir.
In the present case, Plaintiff was explicitly terminated from his position on February 19,
2010. (Compl. ¶ 47.) Because Plaintiff jointly filed a complaint with the PHRC, he had 300
days from this incident to file with the EEOC. Yet, Plaintiff did not file his Charge of
Discrimination with the EEOC until May 3, 2011—438 days after his termination. (Id. ¶ 48.)
This failure to file within the 300-day time limit bars Plaintiff from exhausting his administrative
remedies, which in turn precludes him from bringing the present judicial action.
In an effort to escape the ramifications of his delay, Plaintiff argues that, on July 14,
2009, he spoke with Defendant Thomas who told him his job would be available “for up to one
year.” (Id. ¶ 39.) Thus, he claims to have been “misled by defendants into believing that he
would be entitled to return to work through July 14, 2010.” (Pl.’s Resp. Opp’n Mot. Summ. J.
8.) Moreover, he asserts that he was never informed that he was being placed on FMLA leave or
that his FMLA leave had expired, until he received the February 17, 2010 letter, at which point
he still believed that he had until July 14, 2010 to return to work. (Id.) As such, Plaintiff now
claims that, viewing the facts in the light most favorable to him, he had 300 days from July 14,
2010 to file his EEOC charge, meaning that, having filed 293 days later on May 3, 2011, his
claim is timely.
This argument fails to grant Plaintiff any reprieve from his timeliness defects. When
determining the proper adverse employment event that triggered the running of the limitations
period, the Court finds guidance from the Third Circuit decision in Watson v. Eastman Kodak
Co., 235 F.3d 851 (3d Cir. 2000). In that matter, the plaintiff was advised, on February 4, 1997,
that he was being removed from his position as an account executive due to poor performance.
Id. at 853. In the same letter, he was told he would be allowed to remain at the defendant
company only until March 7, 1997, unless he found another position within the company. Id.
When he was unable to do so, the defendant terminated his employment on that date. Id. The
plaintiff did not file an EEOC charge until 330 days after the termination letter, but less than 300
days after the March 7, 1997 actual termination date. Id. The district court granted summary
judgment in favor of defendant because the plaintiff had not exhausted administrative remedies.
Id. at 854. On review, the Third Circuit affirmed. Id. At the outset of its analysis the Third
Circuit noted that “the crucial issue in this case is whether the actionable adverse employment
decision was the one to separate Watson from the position as Account Executive or the one to
terminate his employment with Kodak entirely.” Id. Relying on the United States Supreme
Court’s holding in Delaware State College v. Ricks, 449 U.S. 250 (1980), the court upheld the
lower court’s finding that the unlawful termination claim accrued on February 4, 1997, the date
he received the letter from his supervisor. Id. at 857. The Third Circuit rejected plaintiff’s claim
that the February 4, 1997 letter was equivocal because it preserved the possibility of continued
employment. Id. at 856. Rather, it found that merely because plaintiff effectively remained in
his Account Executive position until March 7, 1997 did not change the fact that the adverse
employment action occurred on the date that he was clearly informed of the operative decision to
terminate. Id. Citing Ricks, it concluded that “the proper focus is upon the time of the
discriminatory acts, not upon the time at which the consequences of the acts became most
painful.” Id. at 855 (internal citations and quotations omitted). Since Watson, the Third Circuit
has repeatedly reaffirmed that “an adverse employment action occurs, and the statute of
limitations begins to run, at the time the employee receives notice of that action and termination
is a delayed, but inevitable result.” Id. at 853; see, e.g., Ruehl, 500 F.3d at 383; Urban v. Bayer
Corp. Pharm. Div., 245 F. App’x 211, 212–13 (3d Cir. 2007); Thompson v. Gen. Elec. Co., 81 F.
App’x 415, 417–18 (3d Cir. 2003).
In the present case, Plaintiff’s argument is even less compelling than the plaintiff’s in
Watson. Plaintiff spoke with Defendant Thomas on July 14, 2009, upon being discharged from
Hopkins Rehabilitation, at which point Thomas made the equivocal and amorphous statement
that Plaintiff’s job would remain available to him for “up to one year.” (Compl ¶ 39.) After that
time, there was no further mention of this “one year” period. More than seven months later, on
February 17, 2010, Plaintiff received a letter from Defendant Pasour, on behalf of Defendant
PHA, expressly and clearly informing him that his “Family Medical Leave of Absence” had
“expired” and that he was being terminated from employment, effective February 19, 2010. (Id.
¶¶ 46–47.) The Complaint alleges no subsequent events, conversations, letters, or other
transactions that would have led Plaintiff to believe, notwithstanding this explicit termination
letter, that Thomas’s previous statement regarding job availability for “up to one year” still held
true. In light of the Supreme Court’s decision in Ricks, as well as the Third Circuit rulings in
Watson and its progeny, this Court must find that the adverse employment action in this case
occurred—and the statute of limitations began to run—at the time Plaintiff received clear notice
of his inevitable termination. Because that clear notice came on February 17, 2010, Plaintiff had
300 days from that date to file a charge with the EEOC.
Ultimately, because Plaintiff did not file his charge with the EEOC until May 3,
2011—138 days after the limitations period expired—Plaintiff has not and cannot now exhaust
administrative remedies. Absent such exhaustion, the Court has no recourse but to dismiss his
ADA claims (Counts I, II, and III) against Defendant PHA.
Defendants next argue that the FMLA claims also suffer from several defects. First, all
Defendants contend that, like the ADA claims, the FMLA claims were filed outside the
applicable limitations period. Second, Defendants assert that, even if timely, Plaintiff has failed
to adequately plead all elements of an FMLA violation. Third, Defendant Pasour argues that the
Complaint fails to set forth sufficient allegations to state an interference claim against him
individually. Finally, Defendant Pasour argues that Plaintiff’s punitive damage claim under the
FMLA is improper.
Statute of Limitations
The statute of limitations for violation of the FMLA is two years after “the date of the last
event constituting the alleged violation for which the action is brought.” 29 U.S.C. § 2617(c)(1).
In the case of a willful violation of the FMLA, however, a plaintiff has three years in which to
institute an action. Id. § 2617(c)(2). “To successfully allege a willful violation of the FMLA, the
plaintiff must show that the employer knew or showed reckless disregard for the matter of
whether its conduct was prohibited by the statute.” Caucci v. Prison Health Servs., Inc., 153 F.
Supp. 2d 605, 609 (E.D. Pa. 2001) (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133
(1988)) (further citations omitted).
Defendants contend that Plaintiff was terminated on February 19, 2010 and, as such, was
required by law to assert his FMLA claims on or before February 19, 2012. Plaintiff, however,
did not file his Complaint until March 21, 2012, meaning the FMLA claims are time-barred.
Defendants go on to argue that the Complaint’s “one self serving and conclusory paragraph”
alleging willful violation of the FMLA is insufficient to properly plead such a violation of the
FMLA, and thus invoke the three-year statute of limitations. (Defs. PHA and Thomas’s Mem.
Supp. Mot. Summ. J. 7.)
The Court, however, must disagree. The Complaint at issue specifically alleges that
“[t]he willful violation of Plaintiff’s rights under the Act were [sic] done in the absence of good
faith and reasonable grounds.” (Compl. ¶ 70.) As Plaintiff points out in his Response, the
Complaint alleges multiple facts in support of this assertion, including: (1) Defendant Thomas
allegedly misleading Plaintiff into believing that he would have “up to one year” to return to
work (id. ¶ 39); (2) stalling with respect to Plaintiff’s numerous requests to return to work with
an accommodation of a desk job, until after the FMLA leave expired (id. ¶¶ 39, 41–45); (3) never
notifying Plaintiff that he was on FMLA status until it had “expired” (id. ¶ 46); (4) interfering
with Plaintiff’s desired return to work by requiring that he be examined by a PHA physician, yet
hindering Plaintiff’s efforts to set up the appointment (id. ¶¶ 44–45); and (5) ultimately
terminating Plaintiff because he was not cleared by the PHA physician despite Plaintiff’s
numerous efforts to be examined. (Id. ¶ 46.) Taking all of these facts as true, as is required by
Federal Rule of Civil Procedure 12(b)(6), Plaintiff has pled a plausible cause of action—thus
satisfying Iqbal pleading standards—for willful violation of the FMLA. Accordingly, the threeyear statute of limitations must be presumed to apply, meaning that Plaintiff’s Complaint was
timely filed. While discovery might ultimately bear out different facts, such a finding is
inappropriate at this early stage of the case.1
Defendants cite to the case of Jetter v. Rohn & Haas Chems., LLC, No. Civ.A.08-1617,
2011 WL 2473917 (E.D. Pa. June 22, 2011) for the proposition that “where a complaint fails to
allege with specificity a willful violation of the FMLA, it must be dismissed as a matter of law.”
(Defs. PHA and Thomas’s Mem. Supp. Mot. Summ. J. 7.) Notably, however, the FMLA claims
in Jetter were dismissed on timeliness grounds during the summary judgment stage, after the
discovery period already concluded. Jetter, 2011 WL 2473917, at *1–2. The present case, on the
other hand, is at its earliest stages, with Defendants having yet to even file Answers. Moreover,
Defendants cite to no case to support the proposition that a claim of willful violation of the
FMLA is subject to any heightened pleadings standard. Indeed, in Ridner v. Salisbury
Pleading of the Elements of an FMLA Interference Cause of Action
In a second challenge to the FMLA claims, Defendants contend that Plaintiff fails to
properly plead an FMLA interference claim. To state a claim for FMLA interference, a plaintiff
must allege that: (1) he was an eligible employee under the FMLA; (2) the defendant-employer
was subject to the requirements of the FMLA; (3) he was entitled to leave under the FMLA; (4)
he gave notice to the defendant of his intention to take FMLA leave; and (5) he was denied the
benefits to which he was entitled under the FMLA. Figueroa v. Merritt Hospitality, LLC, No.
Civ.A.11-1807, 2011 WL 4389585, at *3 (E.D. Pa. Sept. 21, 2011) (citations omitted). Under
the fourth and fifth elements—upon which Defendants focus their argument—employees wishing
to take qualified leave must provide adequate notice to their employers. Grosso v. UPMC, --- F.
Supp. 2d ---, No. Civ.A.10-0075, 2012 WL 787481, at *19 (W.D. Pa. Mar. 9, 2012). “An
employee need not specifically mention the FMLA or assert rights under it to satisfy the notice
requirement.” Farver v. Coventry Health Care, Inc., No. Civ.A.10-1927, 2012 WL 1191849, at
*6 (M.D. Pa. Mar. 2, 2012) (citing 29 C.F.R. § 825.302(c)) (additional citations omitted). “The
employee need only state that leave is needed.” Id. Similarly, the fifth element may be presumed
by a termination of the employee that forecloses an entitlement to benefits such as FMLA leave.
Id. at *7.
In the case at bar, Defendants do not challenge Plaintiff’s pleading of elements one, two,
and three, but cursorily argue—with no explanatory analysis—that he has not pled either the
Behavioral Health, Inc., No. Civ.A.11-572, 2011 WL 5089806, (E.D. Pa. Sept. 28, 2011)—a case
cited in the FMLA portion of Defendants’ own brief—the Court found that a plaintiff’s cursory
allegations that the defendant’s actions in terminating her were done “knowingly, intentionally,
and discriminatorily” were sufficient to “successfully” plead a willful violation of the FMLA and
thus invoke the three-year statute of limitations. Id. at *4.
notice or the denial elements necessary to successfully establish an interference claim. The
Complaint, however, belies this contention. Plaintiff specifically alleges that, on June 8, 2009,
after being informed about Plaintiff’s medical condition, “Defendant Thomas sent Plaintiff a
letter acknowledging Plaintiff’s request for a leave of absence and informing him regarding his
rights and obligation under the Family and Medical Leave Act. Defendants also informed
Plaintiff that he was required to submit a medical certification form in order to qualify for
FMLA.” (Compl. ¶¶ 28–29.) Plaintiff goes on to assert that, on June 12, 2009, he returned this
Request for Leave of Absence, together with the “Certification of Health Care Provider” form to
Defendant Thomas certifying that he suffered from a serious medical condition and was unable to
do any work for three to four months. (Id. ¶ 32.) Such a request for leave is more than sufficient
to adequately plead the fourth element of an FMLA claim.
With respect to the fifth element, the Complaint contends that, on February 17, 2010,
Plaintiff received a letter from Defendant Pasour that his “Family Medical Leave of Absence”
had expired and that he was being terminated, despite the fact that Plaintiff was “never informed
by PHA that he was on FMLA leave and in fact was unaware that he was on FMLA until he
received the letter.” (Id. ¶ 46.) By asserting that Defendants misled Plaintiff into believing that
he was not on FMLA leave until it technically expired and then immediately terminating him,
Plaintiff has sufficiently alleged a “denial” of his FMLA rights.
In sum, the Court finds that Plaintiff has properly pled an interference claim under the
FMLA. Accordingly, this portion of Defendants’ Motion is denied.
FMLA Interference Claim as to Defendant Pasour
Via a separate Motion to Dismiss, Defendant Pasour brings an individual challenge to the
FMLA interference claim asserted against him. Specifically, Mr. Pasour asserts that, because
Plaintiff’s allegations contain no facts to indicate that he either had any supervisory authority
over Plaintiff or that he exercised sufficient control over Plaintiff’s termination or FMLA leave,
Plaintiff cannot impose personal liability against him under the FMLA.
The FMLA defines an “employer” as, inter alia, “any person who acts, directly or
indirectly, in the interest of an employer.” 29 U.S.C. § 2611(4)(A)(ii)( I ). In the recent case of
Haybarger v. Lawrence Cnty Adult Probation & Parole, 667 F.3d 408 (3d Cir. 2012), the Third
Circuit has joined the ranks of other circuits finding that individual liability is available under the
FMLA. Id. at 414. Relying on the definition of “employer” under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et. seq., the Third Circuit held that “an individual is subject to
FMLA liability when he or she exercises ‘supervisory authority over the complaining employee
and was responsible in whole or part for the alleged violation’ while acting in the employer’s
interest.” Id. at 417 (quoting Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir.1987)). In
analyzing an individual supervisor’s control over the employee under the FLSA and the FMLA,
the Third Circuit then remarked that “most courts look to the ‘economic reality’ of the
employment situation, examining whether the individual supervisor carried out the functions of
an employer with respect to the employee.” Id. (citing cases). In other words, “whether a person
functions as an employer depends on the totality of the circumstances rather than on ‘technical
concepts of the employment relationship.’” Id. (quotation omitted). To the end, the Third
Circuit found several factors to be relevant in ascertaining the economic reality of the
employment situation, including whether the individual “‘(1) had the power to hire and fire the
employee, (2) supervised and controlled employee work schedules or conditions of
employment, (3) determined the rate and method of payment, and (4) maintained employment
records.’” Id. at 418 (quoting Herman v. RSR § Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999))
(further quotations omitted).
In the present case, the allegations regarding Defendant Pasour are sparse at best. The
Complaint alleges that Mr. Pasour “is or was at all times material and relevant to this Complaint,
Defendant PHA’s Acting General Counsel. As such he was responsible to see that Defendant
PHA and Defendant Thomas, among others, comply with federal, state and local laws and
regulations.” (Compl. ¶ 11.) Thereafter, Mr. Pasour’s name does not make another appearance
in the Complaint until the description of the October to November 2009 time period, when
Defendant Thomas allegedly informed Plaintiff that he would have to speak with Defendant
Pasour about being cleared to return to work. (Id. ¶ 42.) Plaintiff purportedly made multiple
efforts to speak with Defendant Pasour and finally got through to him in January 2010. (Id. ¶
43.) At that point, Defendant Pasour informed Plaintiff that he needed to schedule an
appointment with Defendant Thomas to be seen by PHA’s physician in order to be cleared for a
return to work. (Id.) Ultimately, in February 2010, after Plaintiff had no success in scheduling
an appointment through Defendant Thomas or reaching Defendant Pasour again, Pasour sent him
the termination letter as described above. (Id. ¶¶ 45–46.)
Notably, nothing in these allegations allows the Court to make any finding that Defendant
Pasour could be deemed an employer for purposes of the FMLA. At no point in his pleading
does Plaintiff discuss Mr. Pasour’s role in the company and authority over Plaintiff’s
employment, including whether Mr. Pasour actually had the power to hire and fire, control wages
and work conditions, or even make decisions regarding FMLA eligibility. To further complicate
the analysis, Plaintiff completely fails to address this issue in his Response to Defendant Pasour’s
Motion to Dismiss. Accordingly, the Court must find that the Complaint fails to state a
cognizable cause of action against Mr. Pasour for individual, personal liability under the FMLA.
It is well-established that if a complaint is subject to Rule 12(b)(6) dismissal, a district
court must ordinarily permit a curative amendment unless such an amendment would be
inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). This opportunity to
amend must be offered, even if the plaintiff does not specifically make such a request. Id. at 235.
In the present matter, the Court finds that allowing such amendment in this case is appropriate for
several reasons. First, this case is at the earliest stages of litigation and Plaintiff has not yet
amended his Complaint. Second, the law regarding when an individual is an “employer” for
purposes of FMLA liability is not well-developed, with the Third Circuit offering its first
definitive opinion on this issue just prior to the filing of the Complaint. Finally, Defendants have
offered no basis—such as futility, bad faith, undue delay, or prejudice—that would counsel
against allowing Plaintiff to amend his Complaint to more specifically plead an FMLA claim
against Defendant Pasour. Given the liberal amendment standard of Rule 15 and absent any of
the aforementioned bases for denying leave, the Court grants Plaintiff twenty days to file an
Amended Complaint in an effort to set forth sufficient allegations upon which individual liability
may reasonably be imposed against Defendant Pasour. His failure or inability to do so will, upon
proper motion, result in dismissal of Defendant Pasour from suit with prejudice.
Finally, as to the FMLA claim,2 Defendant Pasour moves to dismiss Plaintiff’s claim for
punitive damages on the grounds that such damages are not available under that statute. The
Although the Third Circuit has yet to address the subject of punitive damages in an
FMLA claim, the statute itself lists the types of damages available and does not include punitive
damages among them. 29 U.S.C. § 2617(a). Courts within the Third Circuit have repeatedly
interpreted the FMLA to disallow claims for punitive damages. See, e.g., Cullison v. Dauphin
Cnty., Pa., No. Civ.A.10-705, 2012 WL 3027776, at *19 (M.D. Pa. May 18, 2012); Haiden v.
Greene Cnty. Career & Tech. Ctr., No. Civ.A.08-1481, 2009 WL 2341922, at *4 (W.D. Pa. July
27, 2009); Spain v. Colonial Penn Ins. Co., No. Civ.A.97-4010, 1997 WL 773053, at *2–3 (E.D.
Pa. Dec. 12, 1997).
Given this body of jurisprudence and in light of Plaintiff’s failure to make any argument
to support a contrary position, the Court must likewise agree that punitive damages are
unavailable under the FMLA. As such, this portion of Defendants’ Motion is granted and the
claim for punitive damages under the FMLA is dismissed.
Finally, Defendants seek to dismiss Plaintiff’s PHRA claims as barred by the applicable
statute of limitations. The PHRA mandates that “[a]ny complaint filed pursuant to this section
Defendant Pasour also moves to strike Plaintiff’s claim for punitive damages under the
PHRA. As set forth below, however, the PHRA claim is dismissed in its entirety on other
grounds. Moreover, the Court does not address the viability of such damages under the ADA
since no party has raised it as an issue in the Motions to Dismiss.
must be so filed [with the Pennsylvania Human Relations Commission] within one hundred
eighty days after the alleged act of discrimination . . .” 43 Pa. Cons. Stat. § 959(h); see also
Capriotti v. Chivukula, No. Civ.A.04-2754, 2005 WL 83253, at *2 (E.D. Pa. Jan. 14, 2005) (“To
preserve a claim under the PHRA, the Plaintiff must file an administrative charge with the
Pennsylvania Human Relations Commission within 180 days of the alleged act of
discrimination.”). “If a plaintiff fails to file a timely complaint with the Pennsylvania Human
Relations Commission, then he or she is precluded from judicial remedies under the PHRA.”
Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997). Unlike claims under the ADA,
there is no extension for joint filing with another agency. See Capriotti, 2005 WL 83253, at *2
(“Filing within the 300 day EEOC deadline but past the PHRA deadline will not preserve
Plaintiff’s state claim.”).
As set forth in detail above, the adverse employment action in this case occurred on
February 17, 2010, when Plaintiff received a letter terminating him from his employment.
Therefore, he had until August 16, 2010—180 days later—to file a claim with PHRC.
Nonetheless, he waited approximately eight and a half more months—until May 3, 2011—to
jointly file his charge with both the PHRA and EEOC. Even were the Court to accept Plaintiff’s
previously-discussed argument that the adverse employment action occurred on July 14, 2010,
his PHRA claim would still be untimely, as it was filed well over 180 days past that day. Thus,
the Court dismisses these claims (Counts VI and VII) from the Complaint.
For all of the foregoing reasons, the Court will grant the Motion to Dismiss of Defendants
Thomas and PHA as to the ADA claims (Counts I, II, & III) and the PHRA claims (Counts VI &
VII), but deny it as to the FMLA claims (Counts IV & V). In addition, the Court grants Mr.
Pasour’s Motion to Dismiss in its entirety, thereby dismissing Plaintiff’s claim for punitive
damages under the FMLA, as well as all claims against Mr. Pasour individually. Plaintiff shall
have twenty days from the date of the accompanying order to amend the FMLA claim against
An appropriate order follows.
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