TRELZENBERG v. AIG

Filing 37

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 4/24/2014. 4/24/2014 ENTERED AND COPIES E-MAILED.(kp, )

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHIEN HWA KATHERINE
TRELENBERG

v.
21ST CENTURY INSURANCE AND
FINANCIAL SERVICES, INC.

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O’NEILL, J.

CIVIL ACTION
NO. 12-3603

April 24, 2014

MEMORANDUM
Plaintiff Shien Hwa Katherine Trelenberg has sued her former employer, 21st Century
Insurance and Financial Services, Inc., 1 alleging disability based discrimination and retaliation in
violation of the Americans with Disabilities Act and hostile work environment in violation of
Title VII of the Civil Rights Act of 1964. Presently before me is defendant’s motion to dismiss
Counts I and II of plaintiff’s second amended complaint and plaintiff’s response thereto. 2 For
the following reasons I will grant defendant’s motion.
BACKGROUND
Trelenberg was employed by 21st Century as a mail clerk at its Wilmington, Delaware
location from September 12, 2005 until she was fired on April 15, 2009 allegedly for disruptive
behavior. Dkt. No. 30 at ¶¶ 12, 40. Trelenberg claims that she was actually fired in violation of
the ADA because she suffered a wrist injury while at work that required her to ask for help with
lifting and for time off to recuperate. Id. at ¶ 54. Additionally, Trelenberg claims that her
1

During the period of Trelenberg’s employment defendant was known as AIG Marketing
Inc. Dkt. No. 8-1 at 1.
2
Defendant has not moved to dismiss Count III of plaintiff’s complaint alleging a hostile
work environment in violation of Title VII of the Civil Rights Act of 1964.

supervisors, Frank Ginnocchio, John Ham, Joseph Ferraro and Barbara McCormick, fired her in
retaliation for reporting her injury and wrist condition to the Human Resources Department. Id.
at ¶ 56.
Trelenberg alleges that she injured her wrist on June 28, 2006 while lifting 70 lbs. of
copy paper and that this injury turned into chronic tendonitis requiring her to wear a wrist splint
and to restrict lifting to 20 lbs. or less. Dkt. No. 30 at ¶¶ 42, 44. On July 11, 2006 Trelenberg
gave her supervisor Frank Ginnocchio a doctor’s note stating that she could not lift more than 20
pounds for one month. Id. at ¶ 22. Trelenberg alleges that rather than accommodating the
doctor-prescribed lifting restriction Ginnocchio “advised [Trelenberg’s] co-workers not to help
her lift packages.” Id. at ¶ 23. Trelenberg also claims that on July 17, 2006 she took a twenty
minute break because of pain in her wrist, which caused Ginnocchio to “use[ ] curse words”
while speaking to Trelenberg and to complain about her failure to sort mail. Id. at ¶ 24. On July
20, 2006 Trelenberg gave Ginnocchio another letter from her doctor which described the lifting
restriction and stated that she needed six days off of work in order to recuperate; however,
Ginnocchio neither reported Trelenberg’s injury to Human Resources nor filed an injury report.
Id. at ¶ 25. Trelenberg states that Ginnocchio instructed her to notify the disability carrier. Id.
Trelenberg also asserts that on August 11, 2006 she learned that Ginnocchio had instructed a coworker not to help Trelenberg lift packages and that “he should yell at her.” Id. at ¶ 28.
Trelenberg states that on August 28, 2007 her doctor wrote another note detailing the
diagnosis and lifting restriction which she provided to Ginnocchio. Id. at ¶ 42. Trelenberg
contends that two days later the human resources manager and her mailroom supervisors met
with Trelenberg to discuss “Ginocchio’s concern that Trelenberg’s wrist injury and consequent
lifting restrictions were continuing.” Id. at ¶ 43. On September 6, 2007 another doctor examined

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Treleberg and concluded that the tendonitis in her wrist had become a chronic condition and the
lifting restrictions should remain in place but that she was “otherwise able to perform the
essential functions of the job.” Id. at ¶ 44. Trelenberg filled out a workers’ compensation form
but claims that it was never processed. Id. at ¶ 45. She asserts that her repeated attempts to
follow up on this claim for workers’ compensation, coupled with the ongoing lifting restrictions
and her repeated requests for time off from work, caused her termination. Id. at ¶ 54. She also
claims that her mailroom job required her to deliver 50 to 70 pound boxes and defendant’s
refusal to give her paid time off caused her to use “several months of vacation time between
2007 and 2009 due to pain in her wrist from lifting at work.” Id. at ¶ 52. Additionally,
Trelenberg asserts that defendant “deliberately ignored” her requests for accommodation and
claims that as a result of the failure to accommodate her lifting restrictions her injury was
exacerbated. Id. at ¶¶ 47-48. Finally, Trelenberg claims that because her supervisors were
“embarrassed by their failure to process [her] workers[’] compensation claim in a timely
fashion” and “after failing to convince her not to report that failure to human resources” they
retaliated against her by firing her. Id. at ¶ 56.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
Typically, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations,” though plaintiff’s obligation to state the grounds of entitlement to relief
“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual
allegations must be enough to raise a right to relief above the speculative level . . . on the

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assumption that all of the allegations in the complaint are true (even if doubtful in fact).” Id.
(citations omitted). This “simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of” the necessary element. Id. at 556. The Court of Appeals has
made clear that after Ashcroft v. Iqbal, 556 U.S. 662 (2009), “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.’ To prevent dismissal,
all civil complaints must now set out ‘sufficient factual matter’ to show that the claim is facially
plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 556
U.S. at 678. The Court also set forth a two part-analysis for reviewing motions to dismiss in
light of Twombly and Iqbal:
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. 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 210-11, quoting Iqbal, 556 U.S. at 679. The Court explained, “a complaint must do more
than allege the plaintiff’s entitlement to relief. A complaint has to ‘show’ such an entitlement
with its facts.” Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008).
“[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, 556 U.S. at 679, quoting Fed. R. Civ. P. 8(a)(2).
DISCUSSION
The ADA prohibits covered employers from discriminating against qualified individuals
on the basis of disability and from retaliating against or interfering with any person who makes a

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claim pursuant to the ADA. 42 U.S.C. §§ 12112(a); 12203(a)-(b). 3 Trelenberg has alleged both
discrimination and retaliation on the part of defendant. Dkt. No. 30 at ¶¶ 41-54; 55-56.
Defendant seeks dismissal of both claims. Dkt. No. 32 at 3. I will address each claim in turn.
I.

ADA Discrimination Claim
To establish a prima facie case of discrimination under the ADA Trelenberg must

demonstrate that she is a qualified individual with a disability. See e.g., Larkin v. Methacton
Sch. Dist., 773 F. Supp. 2d 508, 522 (E.D. Pa. 2011). She must also demonstrate that she “has
suffered an adverse employment action because of that disability.” Deane v. Pocono Med. Ctr.,
142 F.3d 138, 142 (3d Cir. 1998). Defendant asserts that Trelenberg was not disabled within the
meaning of the ADA and therefore suffered no adverse employment action, including no
reasonable accommodation, because of her injury. Dkt. No. 32 at 10. I agree and will grant
defendant’s motion to dismiss this claim for the following reasons.
A.

Disability

Trelenberg claims that her wrist injury and subsequent tendonitis constitute a disability
because “she suffered continuing pain, had to wear a wrist splint continuously in order to limit
the pain that she felt in her wrist . . .” Dkt. No. 35 at 6. She further alleges that her injury
substantially limited her in the major life activities of lifting and working. Dkt. No. 30 at ¶¶ 42,
44.
Trelenberg may establish that her claimed conditions constitute a disability in three ways:

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In her response to defendant’s motion to dismiss Trelenberg seeks application of the
ADA Amendments Act of 2008 to her claims which, among other things, makes it easier for a
plaintiff bringing a claim pursuant to the ADA to establish that she has a disability. Dkt. No. 35
at 5-6. However, the Court of Appeals has determined that the ADAAA is not retroactive.
Britting v. Sec’y, Dep’t of Veterans Affairs, 409 Fed. App’x 566, 569 (3d Cir. 2011). Therefore,
because the alleged misconduct that Trelenberg asserts caused her termination occurred prior to
January 1, 2009 the more demanding pre-ADAAA standard will apply to Trelenberg’s claims.
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by demonstrating that “she has a mental or physical impairment that substantially limits a major
life activity, [that she] has a record of such an impairment, or [that she] is regarded as having
such an impairment.” Hodson v. Alpine Manor, Inc., 512 F. Supp. 2d 373, 389 (W.D. Pa. 2007).
“Merely having an impairment does not make one disabled for purposes of the ADA.” Toyota
Motor Mfg., Ky., Inc.. v. Williams, 534 U.S. 184, 195 (2002).
Trelenberg contends that she is actually disabled. Dkt. No. 35 at 6. In order to
demonstrate that she is substantially limited in her ability to work Trelenberg must demonstrate
that she is “significantly restricted in the ability to perform either a class of jobs or a broad range
of jobs in various classes as compared to the average person having comparable training, skills
and abilities.” Olson v. Gen. Elec. Astrospace, 101 F. 3d 947, 952 (3d Cir. 1996). Importantly,
“the inability to perform a single, particular job does not constitute a substantial limitation in the
major activity of working.” 29 C.F.R. § 1630.2(j)(3)(i).
The EEOC’s interpretive guidelines describe a two-step analysis for determining whether
an individual is substantially limited in a major life activity. Mondzelewski v. Pathmark Stores,
Inc., 162 F.3d 778, 783 (3d Cir. 1998). First, I must determine whether Trelenberg was
substantially limited in any major life activity other than working, in this case lifting. If not, then
I must determine whether Trelenberg was substantially limited in the major life activity of
working. Id. at 783. Trelenberg contends that she had a chronic condition resulting in a lifting
restriction of 20 pounds. She does not plead any facts to show that either the condition or the
restriction is substantial under the ADA. Rather, Trelenberg’s second amended complaint
demonstrates that with her wrist brace she was “otherwise able to perform the essential functions
of the job.” Dkt. No. 30 at ¶ 44
Neither has Trelenberg sufficiently alleged substantial impairment in her ability to work.

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Trelenberg claims that she was unable to lift more than 20 pounds and that her mailroom job
required her to lift 50 pound boxes of copy paper; however, she has not alleged that her claimed
inability to lift and deliver copy paper significantly restricted her ability to perform a class or
broad range of jobs. Instead, Trelenberg claims that her wrist injury prevented her from
performing only one facet of her job with defendant, namely, lifting boxes of copy paper.
Significantly, as alleged in the amended complaint she remained full time at her job for nearly
three years without any indication that defendant was dissatisfied with her ability to perform the
physical job requirements. Trelenberg has not claimed that her alleged disability precludes her
from a broad class of jobs, and because Trelenberg concedes that she was not precluded from
performing her job in the mailroom, I find that she was not substantially limited in the major life
activity of working.
Trelenberg also contends that she has established a record of a disability because she
provided defendant with doctor’s notes detailing her condition and lifting restriction. Dkt. No.
35 at 7. Trelenberg cites to McGinley v. City of Allentown, No. 12-645, 2012 U.S. Dist. LEXIS
188387 (E.D. Pa. 2012), in support of her assertion that documentation of a lifting restriction
establishes a disability under the ADA. Dkt. No. 35 at 6. However, in McGinley, the plaintiff
alleged that the doctor’s notes he presented to his employer were evidence that his employer
regarded him as disabled. McGinley, 2012 U.S. Dist. LEXIS 188387 at *7. Trelenberg’s
analogy to this case is inapposite because Trelenberg does not assert that defendant regarded her
as disabled, but rather that she was actually disabled. This case is further distinguishable on its
facts because in addition to the doctor’s notes McGinley provided his employer, the employer
was also aware of six surgeries and physical therapy McGinley underwent because of his injury.
Again recognizing that Trelenberg’s doctor’s note states that with the wrist brace she is able to

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perform the essential functions of her job, I find that Trelenberg has not alleged sufficient facts
to support her allegation that she was disabled under the ADA.
B.

Causation

Even if Trelenberg’s wrist injury did rise to the level of a disability I find that she has not
sufficiently alleged that it was the cause of her termination from employment. Deane, 142 F.3d
at 142. Trelenberg concedes that on September 6, 2008 her doctor concluded that she had to
“wear a wrist splint while at work” but considered her “otherwise able to perform the essential
functions of the job.” Dkt. No. 30 at ¶ 44. Additionally, plaintiff continued working for
defendant for more than two years thereafter and makes no allegations that she was ever
disciplined for failure or inability to lift or perform the physical aspects of her job. Rather, the
facts that Trelenberg pleads in order to demonstrate that she was fired due to her disability
actually suggest that if defendant had any discriminatory motive in firing her, it was based on her
race or national origin. See e.g., Dkt. No. 30 at ¶¶ 29, 32-36. For these reasons I find that
Trelenberg has failed to allege facts sufficient to demonstrate that defendant fired her because of
her alleged disability
C.

Leave to Amend

Though leave to amend should be “freely given when justice so requires,” I find that
amendment would be futile because there is no reason to believe that plaintiff can amend her
complaint to show that she was disabled under the ADA. Fed. R. Civ. P. 15(a)(2). Trelenberg
argues for the first time in her response to defendant’s second motion to dismiss that defendant
refused to reasonably accommodate her injury or engage with her in the interactive process.
Though I need not consider these allegations as they are not contained in her second amended

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complaint, I will address them here to the extent that they pertain to the futility of allowing
Trelenberg to amend her complaint again.
Even if Trelenberg were to plead sufficient facts to assert that defendant discriminated
against her by failing to provide a reasonable accommodation for her wrist injury I find that
amendment is futile because there is no obligation to provide a reasonable accommodation
unless plaintiff has a disability as defined under the ADA. Larkin, 773 F. Supp. 2d at 530.
“Failure to engage in the interactive process, itself, does not constitute a violation of the ADA.”
Hohinder v. United Parcel Serv. Inc., 574 F.3d 169, 194 (3d Cir. 2009).
There is no reason to believe that given a third opportunity to amend her complaint that
Trelenberg would be able to plead sufficient facts to demonstrate that she was disabled under the
ADA or that her employment was terminated because of her wrist injury. Neither can
Trelenberg demonstrate that defendant improperly denied her a reasonable accommodation.
Recognizing that plaintiff has already had two opportunities to cure deficiencies in her
complaint, I will grant defendant’s motion to dismiss Count I of Trelenberg’s complaint.
II.

ADA Retaliation Claim
Trelenberg asserts she was terminated in retaliation for reporting her injury. Dkt. No. 30

at ¶ 56. To establish a prima facie case of retaliation under the ADA Trelenberg must show (1)
that she engaged in a protected employee activity; (2) that she was subject to adverse action by
her employer after, or contemporaneous with, the protected activity; (3) a causal connection
between the protected activity and the adverse action. Fogleman v. Mercy Hosp., Inc., 283 F.3d
561, 567-68 (3d Cir. 2002). In its motion to dismisss, defendant challenges the sufficiency of
Trelenberg’s second amended complaint as to the third element. Dkt. No. 32 at 12-16. I agree
and find that the amended complaint fails to demonstrate a causal connection between

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Trelenberg’s report of her injury to human resources and her termination at least one year later. 4
Defendant asserts that because Trelenberg reported her alleged injury to human resources
in August 2007 and was not fired until April 2009, the length of time between the protected
activity and the adverse action is too great to infer causation. Id. at 13. Trelenberg must show
either “an unusually suggestive temporal proximity between the protected activity and the
alleged retaliatory activity,” a “pattern of antagonism coupled with timing to establish a causal
link” or an inference of causation from the “evidence gleaned from the record as a whole” in
order to satisfy the causation element of her retaliation claim. Griesbaum v. Aventis Pharm., 259
F. App’x 459, 466-467 (3d Cir. 2007) (additional citations omitted). Though the Court of
Appeals has “declined to establish a bright line rule dictating a specific amount of time [between
protected activity and adverse employment action] . . . in order for the court to find an ‘unusually
suggestive temporal proximity,’” Morrin v. Torresdale Frankford Country Club, No. 07-5527,
2008 WL 2389469, at *7 (E.D. Pa. June 11, 2008), it has held that adverse employment action
taken approximately one year after an employee engages in a protected activity is not an
unusually suggestive interval. Griesbaum, 259 F. App’x at 467. 5
In her amended complaint Trelenberg asserts that she provided Ginnocchio with doctor’s
notes about her injury and lifting restriction on July 11 and July 20, 2006 and on August 28,
2007. Dkt. No. 30 at ¶¶ 22, 25, 42. She alleges that on September 6, 2007 she gave a “report” to
Ginnocchio authored by another doctor describing her wrist condition as chronic, detailing the
lifting restrictions, and concluding that she was “otherwise able to perform the essential
4

Though I considered this claim and found the allegations sufficient in my opinion on
defendant’s first motion to dismiss (Dkt. No. 28 at 17-22), after further consideration in light of
the allegations in plaintiff’s second amended complaint I must reexamine this claim here and
reach a different outcome.
5
Conversely, the Court of Appeals has recognized that an interval of three days is
unusually suggestive. Doe v. C.A.R.S. Prot. Plus., 527 F.3d 358, 369 (3d Cir. 2008).
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functions of the job.” Id. at ¶ 44. She states that she “filled out” a workers’ compensation form
in August, 2007. Id. at ¶ 45. Recognizing that each of these instances constitutes protected
employee activity and that she was not fired until April 15, 2009, more than two years after her
first complaint to Ginnocchio, I do not find that this interval constitutes temporal proximity
suggestive of retaliation. Even the latest of the complaints about her wrist injury that Trelenberg
describes in her second amended complaint, August, 2007, demonstrates an interval of more than
one year, which as stated, is not unusually suggestive of retaliation. Trelenberg has not
demonstrated suspicious timing to raise an inference of causation.
Importantly, it also appears that the alleged pattern of antagonism targeting Trelenberg
for the help she required with heavy lifting far pre-dates her wrist injury and diagnosis.
Trelenberg contends that more than a year before her wrist was injured her co-worker “yelled
and screamed at her” and “refused to help her [deliver 50 boxes of copy paper.]” Dkt. No. 30 at
¶ 16. She also claims that months before her injury Ginnocchio complained that Trelenberg
asked for help with lifting and delivering copy paper and “drove everyone crazy.” Id. at ¶ 17.
Therefore, the allegations that Trelenberg presents to demonstrate disability discrimination are
more properly understood as allegations supporting Trelenberg’s hostile work environment
claim. I find that Trelenberg has not alleged a pattern of antagonism that evidences a causal link
between her termination and her alleged disability.
Trelenberg may have also alleged sufficient evidence to demonstrate a pattern of
antagonism that post-dates her injury, but again only presents facts that demonstrate antagonism
due to her age, Dkt. No. 30 at ¶ 29, race and national origin, id. at ¶¶ 32-36. Trelenberg claims
that “Jim Weir locked the door to prevent [p]laintiff from getting into the elevator” and that “Jim
Weir also repeatedly . . . [referred to Trelenberg as] ‘Made in Taiwan.’” Dkt. No. 30 at ¶¶ 27,

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33. She also claims that when she complained to Ginnocchio about the temperature in the
mailroom he “told her she must be having hot flashes.” Id. at 29. Trelenberg’s only allegation
of misconduct relating to her claimed disability is her assertion that on October 23, 2008 her
supervisor Barbara McCormick “asked her not to report the national origin, disability, and racial
harassment directed at her in the mailroom to the human resources department.” Dkt. No. 30 at
6. However this assertion alone is insufficient to show that she is entitled to relief. Trelenberg
concedes that supervisors instructed her to complete a workers’ compensation claim form and
that she did so, but as defendant points out, Trelenberg does not allege that defendant did
anything improper with this claim form or otherwise failed to satisfy any responsibility for
processing it. I do not interpret this evidence to show a pattern of antagonism due to
Trelenberg’s alleged disability and find that Trelenberg has failed to plead sufficient facts to
support the causation element of her retaliation claim.
Though leave to amend shall be freely given when justice so requires, “the grant or denial
of an opportunity to amend is within the discretion of the District Court . . . .” Foman v. Davis,
371 U.S. 178, 182 (1962). Leave to amend may be denied where there is “undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Id. at 182. Amendment is futile when “the complaint,
as amended, would fail to state a claim upon which relief could be granted.” In re Merck & Co.
Sec., Derivative, & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007). I find that, even
considering the allegations added in Trelenberg’s response to defendant’s motion, leave to
amend would be futile because Trelenberg has not established any reason for me to believe that
she can provide sufficient evidence to satisfy the causation element of her retaliation claim.

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The Court of Appeals has stated that “it is important to emphasize that it is causation, not
temporal proximity itself that is an element of plaintiff’s prima facie case, and temporal
proximity merely provides an evidentiary basis from which an inference can be drawn.”
Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1977). Further amendment
would be futile because Trelenberg’s additional allegation that she reported harassment due to
her wrist injury to Scott Kleiss the day before her termination does not mitigate in favor of
causation considering that she had already reported her alleged disability several times and that
her supervisors had knowledge of her wrist injury for at least a year prior to her termination.
Granting Trelenberg leave to amend her complaint a third time in order to properly allege this
fact would be insufficient to establish causation. Because defendant took no adverse
employment action for at least one year after learning that Trelenberg’s alleged condition was
chronic, and because there are no facts demonstrating a pattern of antagonism due to her alleged
disability during the period leading up to the termination of her employment, I find that plaintiff
cannot state a claim for retaliation under the ADA. Additionally, plaintiff has had multiple
opportunities to plead correctly and to cure deficiencies in her complaint. Therefore, I will grant
defendant’s motion to dismiss Count II of Trelenberg’s second amended complaint.
An appropriate Order follows.

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