O'SHEA v. INTERBORO SCHOOL DISTRICT et al

Filing 14

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 4/28/14. 4/28/14 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DOROTHY O’SHEA

CIVIL ACTION
Plaintiff

NO. 13-cv-06305

v.
INTERBORO SCHOOL DISTRICT, et al.
Defendants
MEMORANDUM OF LAW RE: DEFENDANTS’ MOTION TO DISMISS
Baylson, J.
I.

April 28, 2014

Introduction
Plaintiff Dorothy O’Shea brings this employment retaliation suit against Interboro School

District and the District’s Superintendent, Nancy Hacker (collectively, Defendants), alleging that
Defendants violated Title V of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203
(Count I), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count II), by retaliating
against O’Shea for making complaints and participating in investigations concerning the
inadequacy of special needs services within the school district. 1 The Amended Complaint avers
that, after almost three years of working in a hostile work environment, O’Shea felt compelled to
terminate her employment with the school district on June 30, 2012. She initiated this suit on
October 29, 2013.
Defendants now move to dismiss the Amended Complaint for failure to state a claim.
ECF 7.
1

Although Count I in the Amended Complaint reads “Retaliation in Violation of Title II, Itel III [sic] and
Title V of the ADA,” the Court reads Count I as bringing a Title V claim for retaliation against conduct protected
under Title II and Title III. See 42 U.S.C. § 12203(c) (“The remedies and procedures available under sections
12117, 12133, and 12188 of this title shall be available to aggrieved persons for violations of subsections (a) and (b)
of this section with respect to subchapter I, subchapter II and subchapter III of this chapter, respectively.”).
1

II.

Facts 2
The Amended Complaint alleges in over 140 paragraphs a litany of protected activity and

retaliatory responses from February 2010 to June 2012. Because a great deal of this conduct is
time barred, as discussed infra, the Court will recount the allegations in the Amended Complaint
in summary fashion.
O’Shea was hired in September of 2009 as the Director of Student Services and Special
Education for the Interboro School District. Amended Complaint, ECF 5 ¶ 9. She was
responsible for budgeting district-wide special education services and overseeing the
implementation of the district’s special education plan. ECF 5 ¶ 9. As part of her oversight
duties, O’Shea was responsible for supervising the Individual Education Programs (“IEPs”) and
the Special Education Program (“SAP”). ECF 5 ¶ 12. She also oversaw various staff and
offices, including the district’s Special Education Supervisor, school psychologists, and the
Office of Pupil Services. ECF 5 ¶ 13. Additionally, O’Shea participated in administrative and
organizational meetings regarding district-wide policies to locate, identify, evaluate, and educate
children with disabilities. ECF 5 ¶ 11.
Beginning in February 2010, O’Shea brought numerous complaints to Superintendent
Hacker, and other school officials, about various special education programs within the district
and their failure to comply with federal law. ECF 5 ¶ 14. After making these complaints, the
Superintendent and key administrators began to harass O’Shea, subject her to wrongful
discipline, and interfere with her job duties. These actions eventually resulted in O’Shea
suffering de facto demotions, loss of pay, and eventually constructive discharge. ECF 5 ¶ 16.

2

These factual allegations are taken from the Amended Complaint. They are presumed true for the
purpose of evaluating Defendants’ Motion to Dismiss. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir.
2008).
2

For example, O’Shea complained that the manner in which the district evaluated SAP
students did not comply with the Individuals with Disabilities Education Act and § 504 of the
Rehabilitation Act. ECF 5 ¶ 15. After making this complaint, she was excluded from e-mails
and administrative meetings discussing special education services offered by the district. ECF 5
¶ 17. In another example, on April 6, 2010, O’Shea informed Superintendent Hacker that the
Pennsylvania Department of Education had concluded that the district’s Drop Back in
Alternative Education Program (“DBIA”) did not comply with state alternative education
standards. ECF 5 ¶ 19. When O’Shea presented Superintendent Hacker with this information,
Hacker verbally reprimanded O’Shea for complaining to the state about the DBIA program.
ECF 5 ¶ 20.
Following these and other complaints about the operation of various special education
programs, in June 2010 O’Shea received a negative job evaluation from Superintendent Hacker.
ECF 5 ¶ 23. O’Shea contends that, but for her complaints, she would not have received a
negative evaluation. As a result of the evaluation, O’Shea was not eligible for an annual salary
increase. After receiving the evaluation, in the spring of 2010, O’Shea experienced ongoing
hostility and harassment from Superintendent Hacker, Business Director Ken King, and
Interboro High School Principal Paul Gibson. ECF 5 ¶ 25.
On July 29, 2010, O’Shea filed thirteen specific charges of discrimination by Defendants
with the United States Department of Education’s Office of Civil Rights (“OCR”) on behalf of
disabled students in the school district. She also filed a charge of retaliatory conduct on her own
behalf for her opposition to the school district’s violations of federal law. ECF 5 ¶ 30. Shortly

3

after filing these charges, 3 Superintendent Hacker removed one of O’Shea’s core job duties:
direct supervision of the district’s special education staff. ECF 5 ¶ 33.
During the 2010-2011 school year, O’Shea made several other complaints about the
inadequacies of special education programs in the district. ECF 5 ¶¶ 63-65. In addition to other
retaliatory acts, O’Shea was verbally reprimanded by Superintendent Hacker and Principal
Gibson for making these complaints. ECF 5 ¶¶ 63, 70. On November 4, 2010, O’Shea filed
additional complaints of retaliation with OCR. ECF 5 ¶ 69.
Several instances of retaliatory conduct occurred through the summer of 2011, which
culminated in O’Shea receiving another negative job evaluation. ECF 5-1 ¶¶ 71-93. In
September 2011, O’Shea was interviewed by OCR staff in response to her complaints. ECF 5-1
¶ 90. Superintendent Hacker was aware of O’Shea’s participation in these interviews. A day
after the interviews occurred, Superintendent Hacker threatened O’Shea with disciplinary action
regarding her complaints about the special education programs in the district. ECF 5-1 ¶ 90.
In November 2011, O’Shea recommended to the School Board not to renew a contract
with a provider of mental health services. ECF 5-1 ¶ 96. When Principal Gibson was made
aware of O’Shea’s recommendation, he informed her via e-mail that he was going to advise the
parents of special education students that they would not receive sufficient mental health
services. ECF 5-1 ¶ 97. Gibson’s e-mail included the names of several students attending
Interboro High School. ECF 5-1 ¶ 98. O’Shea replied to this e-mail and copied Superintendent
Hacker and members of the School Board to her response. ECF 5-1 ¶ 98. As a result of her email, O’Shea was made to attend a disciplinary meetings for releasing confidential student
information to individuals not employed by the Interboro School District, namely members of
the School Board. ECF 5-1 ¶¶ 100. At the conclusion of the last disciplinary meeting, on
3

No specific date is alleged in the Amended Complaint.
4

December 5, 2011, O’Shea was suspended for two days without pay and escorted out of the
building by the Director of Human Resources in front of the entire faculty and staff. ECF 5-1 ¶¶
98, 102. These acts of suspension and humiliation were in retaliation for her complaints and
recommendations to the School Board. ECF 5-1 ¶ 103. O’Shea then filed another retaliation
complaint with OCR. ECF 5-1 ¶ 105.
In April of 2012, O’Shea complained to Superintendent Hacker and the School Board
that the Individual Education Plans for students receiving “instruction in the home” denied them
equal protection. ECF 5-1 ¶ 107.
On April 27, 2012, OCR denied all of O’Shea’s retaliation claims alleged in her
December 2011 complaint. ECF 5-1 ¶ 108. On May 31, 2012, OCR denied all of O’Shea’s
retaliation claims alleged in her July 2010 and November 2010 complaints. ECF 5-1 ¶ 110.
With regards to the discrimination complaints O’Shea filed on behalf of certain students in the
school district, on September 20, 2012, OCR entered into a Voluntary Resolution Agreement for
three of the five allegations raised in the complaint. ECF 5-1 ¶¶ 114, 116, 119.
On June 30, 2012, O’Shea was forced to terminate her employment with the school
district in light of the retaliatory and hostile work environment created by Defendants. ECF 5-1
¶ 128. On October 29, 2013, O’Shea instituted this suit.
III.

Legal Standard
When deciding a a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

court must “accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under a reasonable reading of the complaint,
the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d
Cir.2008) (internal quotations omitted). To survive a 12(b)(6) motion, the complaint’s “factual

5

allegations must be enough to raise a right to relief above the speculative level.” Id. at 234.
When a complaint contains well-pleaded factual allegations, “a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009) (reaffirming rationale set forth in Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)). However, a court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Id. at 678 (internal quotation marks and citation omitted).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements do not suffice.” Id.
IV.

Contentions of the Parties
Defendants offer two main arguments to dismiss O’Shea’s complaint. 4 First, they argue

that any allegation of retaliation occurring before October 29, 2011 is time barred by a two-year
statute of limitations. Second, they contend that O’Shea’s remaining allegations fail to state a
causal connection between a protected activity and an adverse employment action.
O’Shea responds that the statute of limitations has not run on the events occurring before
October 29, 2011 because she filed complaints with OCR in 2010 and 2011 and did not receive
final decisions on them until June 2013. ECF 9-1 at 11-12. The argument implicit in this
statement is that the statute of limitations should be tolled because O’Shea timely pursued
administrative remedies.
4

Defendants’ exhaustion argument is without merit. O’Shea was not required to file an administrative
complaint before bringing suit in federal court. See McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138
(2d Cir. 2007) (“Whether an ADA claim must first be presented to an administrative agency depends on which
precise title of the ADA the claim invokes.”); Freed v. Consolidated Rail Corp., 201 F.3d 188, 190 (3d Cir. 2000)
(“[S]ection 504 plaintiffs may proceed directly to court without pursuing administrative remedies.”); Smith v. City of
Philadelphia, 345 F. Supp. 2d 482, 486-87 (E.D. Pa. 2004) (Title II does not require exhaustion); Hill v. Park, Case
No. 03-cv-4677, 2004 WL 180044, at *3 (E.D. Pa. Jan. 27, 2004) (Title III does not require exhaustion); Burkhart v.
Widener Univ., Inc., 70 F. App'x 52, 54 (3d Cir. 2003) (Title III does not require exhaustion).
Defendants’ contention that O’Shea lacks standing to raise Title II and Title III claims is equally
unavailing, for O’Shea is only bringing a Title V claim. See supra note 1.
Finally, because the Court concludes that O’Shea’s complaint fails to state a claim on other grounds,
Defendants’ arguments regarding pretext, individual liability, and damages need not be addressed.
6

O’Shea’s response to Defendants’ causation argument focuses on conduct that occurred
prior to October 29, 2011. ECF 9-1 at 21-23. O’Shea’s briefing does not directly address
causation as it relates to events that occurred after October 29, 2011.
V.

Statute of Limitations
The statute of limitations for claims brought under the ADA and § 504 of the

Rehabilitation Act is borrowed from Pennsylvania’s two-year statute of limitations for personal
injury claims. See Disabled in Action of Pa. v. SEPTA, 539 F.3d 199, 209 (3d Cir. 2008)
(holding that the statute of limitations for claims under Title II of the ADA and § 504 of the
Rehabilitation Act is Pennsylvania’s statute of limitations for personal injury); Burkhart v.
Widener Univ., Inc., 70 Fed. App’x 52, 53 (3d Cir. 2003) (noting that ADA claims are governed
by Pennsylvania’s two-year statute of limitations for personal injury).
All the events described in the Amended Complaint prior to October 29, 2011 occurred
more than two years before O’Shea instituted this suit. Accordingly, the Court will disregard
these allegations unless the limitations period should be tolled or O’Shea can state a continuing
violation theory.
A.

Tolling under State Law

When borrowing a statute of limitations from the law of the forum state, courts also
incorporate state tolling rules. Weis-Buy Servs., Inc. v. Paglia, 411 F.3d 415, 422 (3d Cir. 2005)
(citing Hardin v. Straub, 490 U.S. 536, 539 (1989)). Pennsylvania’s tolling statute permits a
timely-commenced civil action or proceeding that has been terminated to be commenced anew
within a year of its termination. 42 Pa. Stat. § 5535(a)(1). Assuming that O’Shea’s complaints
to OCR constituted a “proceeding” under the statute, she cannot avail herself of statutory tolling
because the OCR “proceedings” were not terminated—they were fully adjudicated.

7

O’Shea can also not avail herself of Pennsylvania’s equitable tolling doctrine because
Defendants did not engage in fraudulent or concealing conduct that caused O’Shea to relax her
vigilance in pursuing her claims. See Molineux v. Reed, 532 A.2d 792, 794 (Pa. 1987) (“Where,
through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate
from his right of inquiry, the defendant is estopped from invoking the bar of the statute of
limitation.” (internal quotation marks omitted)).
B.

Tolling under Federal Law

Although Pennsylvania’s statute of limitations is applied to O’Shea’s claims, “federal
tolling doctrine may be applicable to determine whether . . . federal claims are timely.” Smith v.
City of Philadelphia, 345 F. Supp. 2d 482, 486 (E.D. Pa. 2004) (quoting Lake v. Arnold, 232
F.3d 360, 366 (3d Cir.2000)) (considering the applicability of federal equitable tolling doctrine to
ADA and Rehabilitation Act claims). This doctrine will toll a statute of limitations: “(1) where
the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where
the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3)
where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Oshiver
v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). O’Shea’s
circumstances do not warrant tolling under any of these prongs.
O’Shea’s only argument for tolling is that she timely filed complaints with OCR.
However, where a plaintiff is not required to exhaust their administrative remedies prior to
bringing suit in federal court, the statute of limitations is not tolled when the plaintiff chooses to
seek those optional remedies. See Del. State Coll. v. Ricks, 449 U.S. 250, 261 (1980) (holding a
claim brought under 42 U.S.C. § 1981 was untimely and refusing to toll the statute while
plaintiff pursued an internal grievance procedure); Kalyanaram v. Am. Ass'n of Univ. Professors

8

at New York Inst. of Tech., Inc., 742 F.3d 42, 48 (2d Cir. 2014) (“Although equitable tolling of
limitations periods has been recognized in other contexts where pursuing a separate
administrative remedy is a precondition to filing suit, no such tolling is available where an
optional, parallel avenue of relief is pursued.” (citations omitted)); Conley v. Int’l Bhd. of Elec.
Workers, Local 639, 810 F.2d 913, 915–16 (9th Cir. 1987) (holding that pursuing a claim before
the National Labor Relations Board does not toll an action alleging that the union acted unfairly
toward union members); Arriaga–Zayas v. Int’l Ladies’ Garment Workers’ Union–Puerto Rico
Council, 835 F.2d 11, 14 (1st Cir. 1987) (noting that courts have “historically been reluctant to
invoke tolling in circumstances where a claimant rides parallel horses in search of relief”);
Harris v. Alumax Mill Prods., Inc., 897 F.2d 400, 404 (9th Cir. 1990) (emphasizing that courts
are “reluctant to invoke tolling where a plaintiff is tardy in pursuing a parallel avenue of relief”);
Pramuk v. Purdue Calumet Univ., Case No. 12-cv-77, 2012 WL 6552920, at *4-5 (N.D. Ind.
Dec. 14, 2012) (holding that the statute of limitations was not tolled for plaintiff’s Title II ADA
and Rehabilitation Act claims by filing an optional complaint with OCR); Beasley v. Ala. State
Univ., 3 F. Supp. 2d 1325, 1343 (M.D. Ala. 1998) (holding that the statute of limitations was not
tolled for plaintiff’s Title IX and 42 U.S.C. § 1983 claims by filing an elective complaint with
OCR).
As the cases cited supra note 4 indicate, neither Rehabilitation Act claims nor Title V
claims arising under Title II or Title III of the ADA require exhaustion. O’Shea’s pursuit of
administrative remedies with OCR was not a prerequisite to her bringing suit in federal court.
Thus, her claims are not eligible for tolling.

9

C.

Continuing Violation

O’Shea’s pre-October 29, 2011 claims will not be time barred if they constitute a part of
a continuing violation of O’Shea’s federal rights. In employment discrimination law, there are
two categories of violations that are actionable: discrete acts and continuing violations. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-18 (2002) (discussing the distinction
between discrete acts and continuing violations in the context of claims brought under Title VII
of the Civil Rights Act of 1964). 5 A discrete retaliatory act “‘occurred’ on the day that it
‘happened.’” Id. at 110. “[D]iscrete [retaliatory] acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges.” Id. at 113.
The Supreme Court has indicated that “termination, failure to promote, denial of transfer,
[and] refusal to hire” are discrete acts, each constituting a “separately actionable ‘unlawful
employment practice.’” Id. at 114. The Third Circuit has indicated that wrongful suspension,
wrongful discipline, and wrongful accusation also constitute discrete acts. O’Connor v. City of
Newark, 440 F.3d 125, 127 (3d Cir. 2006). Although not mentioned in Morgan or O’Connor,
courts have also recognized wrongful demotion as a discrete act that is individually actionable.
E.g., Graham v. Hoffer, Case No. 05-cv-2679, 2006 WL 3831375, at *3 (M.D. Pa. Dec. 28,
2006).
By contrast, a continuing violation involves “acts which are not individually actionable
but may be aggregated to make out a hostile work environment claim.” O’Connor, 440 F.3d at
127. This type of violation occurs “over a series of days or perhaps years,” Morgan, 536 U.S. at
115, and “is based on the cumulative effect of a thousand cuts, rather than on any particular

5

The Court is aware that Morgan did not involve ADA or Rehabilitation Act claims. However, “the
distinction between ‘continuing violations’ and ‘discrete acts’ is not an artifact of Title VII, but is rather a generic
feature of federal employment law. Thus, in whatever statutory context the distinction may arise, Morgan will
control.” O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006).
10

action taken by the defendant,” O’Connor, 440 F.3d at 128. Although discrete acts must be
raised within the applicable statute of limitations period, acts constituting a continuing violation
“can occur at any time so long as they are linked in a pattern of actions which continues into the
applicable limitations period.” Id. at 127. However, discrete acts which are time barred “cannot
be resurrected by being aggregated and labeled continuing violations.” Id. at 129.
From what the Court can glean from the Amended Complaint, many of O’Shea’s
allegations describe discrete acts that occurred beyond the two-year statute of limitations. 6
These acts are therefore time barred.
This is not to say that the Amended Complaint is completely devoid of allegations that
might state a continuing violation theory. However, two reasons prevent the Court from
concluding that O’Shea has adequately alleged such a theory.
First, the Amended Complaint suffers from garbled phrasing, poor organization, and a
lack of clearly-stated, linear narrative. Some allegations have specific dates, others refer to
months, others refer to seasons, while others still merely state that certain events occurred in the
past without reference to a particular time period. Several allegations seem to be describing the
same events but offer slightly varying details, so that the reader does not know if the allegations
are new events or are adding details to prior allegations.
For example, in paragraph 19 of the Amended Complaint, O’Shea alleges that on April 6,
2010 she informed Superintendent Hacker that the Pennsylvania Department of Education found
that the DBIA program did not comply with “state alternative education standards or provide the
disabled or thought-to-be disabled children an appropriate education.” ECF 5 ¶ 19. In paragraph
6

See, e.g., ECF 5 ¶ 23; ECF 5-1 ¶¶ 87-88 (Negative job evaluations constitute discrete acts of wrongful
discipline); ECF 5 ¶¶ 31, 33, 61-62; ECF 5-1 ¶¶ 70, 72-74, 94-95 (Removal of job duties constitutes a discrete act of
wrongful demotion); ECF 5 ¶¶ 46-47, 79 (Refusal to train constitutes a discrete act of retaliation); ECF 5 ¶¶ 31, 43;
ECF 5-1 ¶¶ 70, 77-79, 90, 98, 100, 102 (Verbal reprimands and other disciplinary actions for engaging in protected
activity constitute wrongful discipline).
11

20, O’Shea describes how she was retaliated against for making this inquiry. Then, in paragraph
21, O’Shea alleges a list of six examples of complaints which constitute protected activity under
federal law. Paragraph 21(a) alleges that O’Shea complained that school administrators
wrongfully encouraged students to drop out of school and enroll in a program offered by a
private contractor called Alternatives Unlimited. It then alleges that Alternatives Unlimited
operates the DBIA program and the Delaware County Learning Academy. Then paragraph 21(b)
avers that “in early April of 2010” both of these programs were cited as non-approved providers
of alternative education services by the Pennsylvania Department of Education. The Amended
Complaint offers no indication that paragraph 21(b) relates to paragraph 19, though it seems to
provide related, or perhaps duplicative, information.
In another example, paragraph 30 of the Amended Complaint discusses conduct that
occurred in July 2010. In paragraph 36, however, the Amended Complaint jumps back two
months and discusses conduct that occurred in May 2010. In yet another example, paragraphs
96-98 describe conduct that began in November 2011 and resulted in O’Shea’s suspension.
Paragraph 99 describes this punishment as a retaliatory act. Then paragraphs 100-102 describe a
disciplinary hearing spanning from December 1 to December 5, 2011, in which O’Shea was
escorted out of the building and humiliated. Paragraph 103 then characterizes these December
events as a retaliatory act. The Amended Complaint does not indicate that O’Shea’s suspension
for her conduct in November 2011 was the consequence of her disciplinary hearing in December
2011—though this is the apparent inference. Nevertheless, the Amended Complaint
characterizes these events as two acts of retaliation.
These and other allegations are scattered and disconnected. The Amended Complaint
seems to omit certain details when introducing the reader to an event only to add them later on

12

without reference to the original, relevant allegation. At best, the Amended Complaint does not
provide a short and plain statement of the grounds entitling O’Shea to relief, as required by Rule
8 of the Federal Rules of Civil Procedure. At worst, the phrasing of these allegations gives the
reader the impression that O’Shea is “stacking” the complaint—which is to say, the organization
of the allegations seems like their content is over-parsed and spread throughout the complaint to
give the appearance that there is more contested conduct than may be fairly said to have
occurred. Compare J.R.R. Tolkein’s single-volume novel The Hobbit, or There and Back Again
(1937) with MGM Pictures and New Line Cinema’s serialized adaptation The Hobbit: An
Unexpected Journey (2012); The Hobbit: The Desolation of Smaug (2013); The Hobbit: There
and Back Again (2014). However it is characterized, the Amended Complaint’s organization
makes it nearly impossible for the reader to decipher what might constitute conduct that could be
included in a continuing violation theory versus what is properly considered conduct that
constitutes a discrete act.
Second, O’Shea does not assert in the Amended Complaint or in her Motion to Dismiss
briefing that she is raising a continuing violation theory. As a result, she has not identified which
allegations she believes constitute a continuing violation. O’Shea’s inclusion of a vast amount of
material that is disorganized and mostly time barred prevents the Court from inferring a
continuing violation theory from the face of the Amended Complaint. Although these timebarred allegations may be relevant “as background evidence in support of a timely claim,”
Morgan, 536 U.S. at 113, they are so interspersed throughout the Amended Complaint that any
continuing violation allegations are difficult to parse. If O’Shea wishes to include these timebarred allegations, she needs to (1) clearly identify the allegations that relate to discrete acts and
are not time barred; then (2) clearly identify the allegations occurring beyond the statute-of-

13

limitations period that comprise a continuing violation, and then (3) clearly identify the
allegations within the statute-of-limitations period that comprise a continuing violation. The
Court will not infer (any more than it already has) that O’Shea is making certain arguments when
they have not been made by her in the first place.
If O’Shea decides to file an amended complaint, any allegations of fact she includes that
occurred before October 29, 2011 must be relevant to a viable legal theory to be considered.
VI.

Failure to State a Claim for Retaliation
The ADA provides that “[n]o person shall discriminate against any individual because

such individual has opposed any act or practice made unlawful by [the ADA].” 42 U.S.C. §
12203. Title II of the ADA makes it unlawful for a qualified individual with a disability to “be
excluded from participation in or be denied benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Title III
of the ADA makes in unlawful for an individual to “be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, privileges, advantages, or
accommodations of any person who owns, leases (or leases to), or operates a public
accommodation.” 42 U.S.C. § 12182. “[I]t is unlawful for an employer to retaliate against an
employee based upon the employee's opposition to anything that is unlawful under the ADA.”
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003). It is also unlawful to
retaliate against an individual “because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42
U.S.C. § 12203. 7
To state a claim for retaliation under the ADA, a plaintiff must allege “(1) a protected
employee activity; (2) adverse action by the employer either after or contemporaneous with the
7

The Rehabilitation Act covers similar activity that need not be differentiated here.
14

employee’s protected activity; and (3) a causal connection between the employee’s protected
activity and the employer’s adverse action.” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d
Cir. 1997); see also Houlihan v. Sussex Technical Sch. Dist., 461 F. Supp. 2d 252, 257 (D. Del.
2006) (noting that “the elements required to establish a claim of retaliation under the
Rehabilitation Act are the same as those required for a claim of retaliation under Title VII and
the ADA”). Protected activity is not limited to the filing of formal charges; an informal protest
of discriminatory employment practices is sufficient. However, the “protest, in whatever
medium, must specifically relate to the protected conduct allegedly being infringed.” Hibbard v.
Penn-Trafford Sch. Dist., Case No. 13-cv-622, 2014 WL 640253, at *16 (W.D. Pa. Feb. 19,
2014) (citing Barber v. CSX Dist. Servs., 68 F.3d 694, 701 (3d Cir. 1995)).
The Amended Complaint alleges two events of retaliation that are not time barred: one
involving wrongful discipline, the other involving constructive discharge.
A.

Wrongful Discipline

O’Shea’s wrongful discipline allegations concern a recommendation she made to the
School Board not to renew a contract with a provider of mental health services. ECF 5-1 ¶ 96.
In response to this recommendation, Principal Gibson e-mailed O’Shea threatening to notify
parents that their children would not receive sufficient mental health services. ECF 5-1 ¶ 97.
O’Shea then forwarded the Principal’s e-mail to Superintendent Hacker and the School Board to
complain about the Principal’s conduct. The Principal’s e-mail, however, included the names of
several students. O’Shea was subsequently ordered to attend a disciplinary meeting for
“releasing confidential student information to individuals not employed by the Interboro School
District,” where she was suspended for two days and escorted out of the building. ECF 5-1 ¶
100.

15

O’Shea alleges that the suspension and removal from the building were retaliatory acts.
She further alleges that, but for her complaining to the School Board about Principal Gibson’s
conduct, she would not have been suspended. However, O’Shea does not adequately allege that
her complaint to the School Board was protected activity—for she does not allege that her
complaint objected to practices prohibited by the anti-discrimination laws. To be sure, O’Shea
alludes to being treated unfairly, for she states that the Principal threatened to inform parents
about her recommendation even though the School Board hired a new contractor to provide
mental health services. ECF 5-1 ¶ 97. But a “general complaint of unfair treatment does not
translate into a charge of illegal discrimination [or retaliation].” Barber, 68 F.3d at 702.
Nor does O’Shea allege that her recommendation to the School Board was based on her
belief that the provider was violating anti-discrimination laws. She merely alleges that the
recommendation was based on “her ongoing focus to increase the quality of services provided to
children with disabilities” and that the provider contract was “previously part” of the ongoing
OCR retaliation and discrimination complaints referenced elsewhere in the Amended Complaint.
ECF 5-1 ¶ 96. These allegations do not adequately plead protected activity. See Barber, 68 F.3d
at 702 (holding that a complaint does not constitute protected activity where it is “just too vague”
and “does not explicitly or implicitly allege that” conduct protected under the ADEA was the
basis for the complaint); Hibbard, 2014 WL 640253, at *16 (applying Barber and granting
defendant’s motion to dismiss where plaintiff’s complaint was “too vague to lead to the plausible
inference that” plaintiff engaged in protected activity). 8 Although it is sufficient “for a plaintiff
to demonstrate that he acted under a reasonable belief that the conduct of which he complained
8

Although Barber and Hibbard involve ADEA and Title VII claims, their rulings are equally relevant to
ADA claims. See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002) (“Because the anti-retaliation
provisions of the ADA and ADEA are nearly identical, as is the anti-retaliation provision of Title VII, we have held
that precedent interpreting any one of these statutes is equally relevant to interpretation of the others.”).

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constituted a violation of the relevant statute,” Jackson v. Birmingham Bd. of Educ, 544 U.S.
167, 187–188 (2005), O’Shea has failed to allege that she believed she was so acting.
B.

Constructive Discharge

O’Shea next alleges that she was forced to terminate her employment with the school
district in light of the retaliatory and hostile environment created by her employer. ECF 5-1 ¶
128. In December 2011, O’Shea filed a third complaint with OCR. ECF 5-1 ¶ 105. In April
2012, O’Shea submitted complaints to Superintendent Hacker and the School Board about how
the special education services provided to students receiving “instruction at home” were not in
compliance with federal law. ECF 5-1 ¶ 107. In June 2012, O’Shea terminated her employment
with the school district. ECF 5-1 ¶ 128. Defendants argue that O’Shea has failed to plead a
causal connection between her termination of employment and a protected activity.
To establish causation, a plaintiff must plead facts that indicate either
(1) an unusually suggestive temporal proximity between the protected activity and
the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing
to establish a causal link. In the absence of that proof the plaintiff must show that
from the evidence gleaned from the record as a whole the trier of the fact should
infer causation.
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (internal quotation
marks and citations omitted); see also M.S. ex rel. Shihadeh v. Marple Newtown Sch. Dist., Case
No. 11-cv-5857, 2012 WL 3815563, at *4 (E.D. Pa. Sept. 4, 2012) (applying these factors on a
motion to dismiss). Timing alone will be sufficient to establish causation only if it is “unusually
suggestive.” In Robinson v. City of Pittsburgh, the Third Circuit clarified that “unusually
suggestive” means causation can be established where an adverse employment action occurs
very close in time to the protected activity, such as within two days. 120 F.3d 1286, 1302 (3d
Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53 (2006). Absent “unusually suggestive” timing, courts look to a broader timeframe coupled
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with a pattern of antagonism in the intervening period. Woodson v. Scott Paper Co., 109 F.3d
913, 920-21 (3d Cir. 1997); see also Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir.
2003) (“Where ‘the temporal proximity is not so close as to be unduly suggestive,’ we have
recognized that ‘timing plus other evidence may be an appropriate test.’” (alteration omitted)
(quoting Estate of Smith v. Marasco, 318 F.3d 497, 513 (3d Cir. 2003))).
Six months elapsed between O’Shea’s December 2011 OCR complaint and employment
termination. Two months elapsed between her April 2012 complaints and her employment
termination. These time periods do not qualify as “unusually suggestive.” See Thomas, 351
F.3d at 114 (noting that three weeks is not unusually suggestive). Nor do they establish
causation under Woodson’s timing-plus-antagonism test. O’Shea does not allege any retaliatory
acts or other hostile conduct by Defendants between December 2011 and her constructive
discharge in June 2012. See Connelly v. Lane Constr., Case No. 13-cv-1402, 2014 WL 950342,
at *2 (W.D. Pa. Mar. 11, 2014) (granting in part defendant’s motion to dismiss where the
complaint alleged no harassing or retaliatory conduct during the intervening six-month period
between plaintiff’s protected activity and the adverse employment action). Because O’Shea has
failed to plead a pattern of antagonism during the intervening period between her protected
activity and her alleged constructive discharge, she has failed to plead causation under the test
announced in Robinson.
Finally, given that the Amended Complaint is poorly organized and replete with timebarred conduct, the Court is unable to infer causation by considering the allegations taken as a
whole. O’Shea may be able to state a claim for retaliation, but she does not to do so in the
Amended Complaint.

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VII.

Conclusion
For the foregoing reasons, the Amended Complaint is DISMISSED WITHOUT

PREJUDICE. O’Shea is granted leave to file an amended complaint that addresses the
deficiencies enumerated in this opinion. An appropriate order follows.

O:\CIVIL 13\13-6305 o'shea v. interboro sd\Memo of Law re MTD.docx

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