RILEY v. ST. MARY MEDICAL CENTER et al

Filing 15

ORDER THAT DEFTS' MOTION TO DISMISS IS GRANTED IN PART & DENIED IN PART, ETC. SIGNED BY HONORABLE J. CURTIS JOYNER ON 4/23/14. 4/24/14 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DENISE RILEY,

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Plaintiff,
v.
ST MARY MEDICAL CENTER and
SUSAN SNYDER,
Defendants.

CIVIL ACTION
NO. 13-cv-7205

MEMORANDUM
JOYNER, J.

APRIL

23, 2014

Before the Court are Defendants’ Motion To Dismiss
Plaintiff’s First Amended Complaint For Failure To State A Claim
(Doc. No. 10), Plaintiff’s Response in Opposition thereto (Doc.
No. 12), and Defendants’ Reply in further support thereof (Doc.
No. 13). For the following reasons, Defendants’ Motion is GRANTED
in part and DENIED in part.
II.

BACKGROUND
Plaintiff Denise Riley brings the present action against her

former employer, St. Mary Medical Center (“SMMC”), and one of its
managers, Susan Snyder. In her First Amended Complaint
(“Complaint”)(Doc. No. 8) she alleges violations of the Age
Discrimination in Employment Act (“ADEA”), the Americans with
Disabilities Act (“ADA”), and the Pennsylvania Human Relations
Act (“PHRA”).
Plaintiff was employed by SMMC for over ten years as a
registered nurse. (Complaint at ¶ 11). She rarely received
1

negative performance reviews during this time period. Id. ¶ 12.
In 2009, Defendant Susan Snyder became Plaintiff’s supervisor.
Id. ¶ 13.
Plaintiff is 62 years old, id. ¶ 6, and has a history of
colitis, anxiety, insomnia, and other cognitive disabilities. Id.
¶ 30. These disabilities have, at times, limited Plaintiff’s
abilities to sleep, concentrate, communicate, and think, among
other things. Id. ¶ 33.
Beginning in 2009, Plaintiff experienced discipline,
harassment, and mistreatment at the hands of Defendant Snyder and
another nurse, Nina Mailey. Id. ¶ 14-6. Mailey made comments to
Plaintiff that she “couldn’t keep up,” that she “was too slow,”
and “was not smart enough to work with patients or staff.” Id.
¶ 16. Mailey also “nearly hit Plaintiff with a chair” and was not
disciplined for doing so. Id. ¶ 17.
On or about November 9, 2009, “among other occasions,”
Plaintiff discussed her disabilities with the Defendants. Id.
¶ 31. On or about November 10, Plaintiff made Defendant Snyder
aware of Mailey’s comments. Id. ¶ 18. Snyder admonished
Plaintiff, not Mailey, for the incidents. Id. ¶ 19. On March 27,
2010, Plaintiff informed SMMC of the situation between Plaintiff,
Mailey, and Snyder. Id. ¶ 20. That same year, Plaintiff’s
temporary manager Jim Gentile told Plaintiff that she was a “rat”
for making a human resources complaint, and told her to “play

2

nice in the sandbox.” Id. ¶ 21.
In June 2011, Plaintiff received a very poor annual
evaluation from her newest manager Joyce Roman. Id. ¶ 22. The
evaluation consisted largely of inaccurate information. Id. ¶ 23.
That same month, “Plaintiff complained that she believed the
selective discipline and overall mistreatment was a result of age
discrimination.” Id. ¶ 24. In August 2011, Plaintiff was one of
the few employees, or only employee, not to receive a raise. Id.
¶ 25. In late 2011, Plaintiff was gradually scheduled for fewer
shifts as the Charge Nurse. Id. ¶ 26. Instead, the position was
assigned more frequently to a 26-year-old employee. Id. One week
before Plaintiff was terminated from her position at SMMC, SMMC
hired a younger, non-disabled nurse who was placed into
Plaintiff’s position. Id. ¶ 28. On January 3, 2013, Plaintiff was
terminated from her position at SMMC. Id. ¶ 27. Plaintiff was
told that she was terminated for her poor performance. Id. ¶ 29.
Plaintiff “had expressed concerns of discriminatory treatment
leading up to her termination.” Id. ¶ 29.
On or about February 15, 2013, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(“EEOC”), and requested that it be dual-filed with the
Pennsylvania Human Relations Commission (“PHRC”). (Def. Ex. A).
On April 29, 2013, Plaintiff filed a complaint in this Court.

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III. STANDARD OF REVIEW
Under Rule 8, a pleading must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). Although this pleading standard
does not require “detailed factual allegations,” it does demand
“more than an unadorned, the defendant-unlawfully-harmed-me
accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Thus

“[a] pleading that offers ‘labels and conclusions’ or a formulaic
recitation of the elements of a cause of action will not do...
[n]or does a claim suffice if it tenders ‘naked assertions’
devoid of ‘further factual enhancement.’”

Id. (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 557, 127 S. Ct.
1955, 167 L. Ed.2d 929 (2007)).
Indeed, “[t]he touchstone of the pleading standard is
plausibility.”

Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.

2012). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ethypharm S.A. France v.
Abbott Laboratories, 707 F.3d 223, 231 n. 14 (3d Cir.
2013)(quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262, n.
27 (3d Cir. 2010)). A court determining the sufficiency of a
complaint should take note of the elements a plaintiff must plead
to state a claim, identify the conclusions that are not entitled
to the assumption of truth, and “where there are well-pleaded

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factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement
for relief.”

Connelly v. Steel Valley School District, 706 F.3d

209, 212 (3d Cir. 2013)(quoting Burtch v. Milberg Factors, Inc.,
662 F.3d 212, 221 (3d Cir. 2011)).
IV.

ANALYSIS
The Court analyzes Plaintiff’s claims of unlawful

discrimination, retaliation, and hostile work environment under
the ADA, ADEA, and PHRA. The Court addresses below the timeliness
of Plaintiff’s claims, followed by the sufficiency of Plaintiff’s
allegations.
A.

Timeliness
Defendants contend that Plaintiff’s claims are untimely

because she failed to exhaust her administrative remedies prior
to commencing a lawsuit in federal court.
1.

Age Discrimination, Disability Discrimination, and
Retaliation under the ADA and ADEA

The enforcement section of the ADA, 42 U.S.C. § 2117, adopts
the procedures for claims set forth in Title VII of the Civil
Rights Act of 1964 (“Title VII”). Accordingly, 42 U.S.C. § 2000e5 sets forth the administrative remedies that must be pursued
prior to filing an ADA lawsuit in federal court. See 42 U.S.C.
§2000e-5. For Plaintiff’s claims to be timely, she must have
filed a Charge of Discrimination within 300 days of when the

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alleged unlawful employment practice occurred. 42 U.S.C. § 2000e5(e)(1); Kim v. I.R.S., 522 Fed. Appx. 157, 158 (3d Cir.
2013)(citing Mandel v. M&Q Packaging Corp., 706 F.3d 157, 165 (3d
Cir. 2013)).
Under ADEA, too, a Plaintiff must submit her administrative
discrimination charge within 300 days of the allegedly unlawful
employment action. Watson v. Eastman Kodak Co., 235 F.3d 851, 854
(3d Cir. 2000)(citing 42 U.S.C. § 2000e-5(e)(1)).
Pinpointing the dates of the allegedly unlawful employment
practices is crucial, because Title VII measures the timeliness
of an administrative charge from the date “the alleged unlawful
employment practice occurred.” Id. at 855 (citing Delaware State
College v. Ricks, 449 U.S. 250, 256 (1980)). “[D]iscrete
discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges.”
Mandel, 706 F.3d at 165 (citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002)). Termination of employment,
failure to promote, and refusal to hire all constitute discrete
acts. Id.
Plaintiff filed her Charge of Discrimination with the EEOC
on February 15, 2013. (Def. Ex. A).1 Thus, any ADA or ADEA claims

1

The Court may consider the EEOC Charge of Discrimination without
converting Defendants’ Motion into one for summary judgment. See, e.g.,
Pension Ben. Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192,
1196 (3d Cir. 1993); Mulholland v. Classic Mgmmt. Inc., Civ. A. No. 09-2525,
2010 WL 2470834 at *4 n.6 (E.D. Pa. 2010).

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that were based on discrete acts occurring more than 300 days
prior, or before April 21, 2012, are time-barred. Applying this
rule, Plaintiff’s claims for age discrimination, disability
discrimination, and retaliation under the ADEA and ADA may
proceed based on Plaintiff’s January 3, 2013 termination alone.
Claims based on any other discrete acts are untimely.
2.

Age Discrimination, Disability Discrimination, and
Retaliation under the PHRA

For a complaint to be timely under the PHRA it must be filed
within 180 days of the alleged act of discrimination. 43 Pa.
Stat. Ann. § 959 (West); Mandel, 706 F.3d at 164. As with her ADA
and ADEA claims, Plaintiff may proceed under the PHRA only with
regard to claims based on the discrete act of her termination
from employment.
3.

Hostile Work Environment under the ADEA, ADA, and PHRA

A hostile work environment is a series of separate acts
that, when viewed in the collective, constitute one unlawful
employment practice. Mandel, 706 F.3d at 165. Under a continuing
violation theory, “discriminatory acts that are not individually
actionable may be aggregated to make out a hostile work
environment claim; such acts ‘can occur at any time so long as
they are linked in a pattern of actions which continues into the
applicable limitations period.’” Id. (citing O’Connor v. City of

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Newark, 440 F.3d 125, 127 (3d Cir. 2006)). “To allege a
continuing violation, the plaintiff must show that all acts which
constitute the claim are part of the same unlawful employment
practice and that at least one act falls within the applicable
limitations period.” Id. at 165-66. To distinguish between
isolated acts and continuing violations, courts may look to the
non-exclusive factors of subject matter and frequency of the
underlying acts. Id. at 166.
The Court finds that Plaintiff’s hostile work environment
claims are time-barred. In order to be timely at least one act
upon which Plaintiff’s hostile work environment claim is based
must have occurred on or after April 21, 2012 (for her ADA and
ADEA claims) or August 19, 2012 (for her PHRA claims).
Plaintiff’s complaint contains allegations of acts that continued
throughout periods of her employment at St. Mary’s, as well as
acts that occurred only on specific occasions. For example,
Plaintiff alleges that “Defendant Snyder selectively disciplined
Plaintiff and harassed her throughout their work relationship,”
(Complaint ¶ 14); “Nina Mailey would regularly mistreat
Plaintiff,” id. ¶ 15, and “made discriminatory comments to
Plaintiff.” Id. ¶ 16. The parties agree that none of these acts
fall within the limitations period.
In addition, Plaintiff alleges that she was terminated in
January 2013, which is an act within the relevant period.

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Defendants argue that Plaintiff cannot rely on her termination in
the pattern of actions constituting an ongoing violation, because
Plaintiff’s termination is a discrete act that is actionable on
its own. (Def. Mot. to Dismiss at 10). The Court agrees.
Pennsylvania district courts have reached differing
conclusions as to whether the termination of an individual from
employment may be part and parcel of her hostile work environment
claim. Compare Nott v. Reading Hosp. & Med. Ctr., CIV. A. 112265, 2012 WL 848245 at *9 (E.D. Pa. Mar. 14, 2012); Cubbage v.
Blooomberg, L.P., CIV.A.05-2989, 2008 WL 1836668 at *3, *5 (E.D.
Pa. 2008)(“as a matter of law [a plaintiff’s] termination can
constitute a component part of her hostile work environment
claims . . . .[o]ne can posit situations where the act of
terminating an employee and the alleged hostile work environment
are inextricably linked”), with Santee v. Lehigh Valley Health
Network, Inc., Civ. A. 13-3774, 2013 WL 6697865 at *7 (E.D. Pa.
Dec. 19, 2013)(“[p]laintiff’s termination . . . is a discrete act
and is not a component of a hostile work environment claim.”);
Fusco v. Bucky County, 2009 U.S. Dist. LEXIS 118924 at *20-21
(E.D. Pa. Dec. 21, 2009)(“[t]he continuing violation theory is
not applicable to the two discrete acts of discrimination that
Defendants challenge because such acts are properly considered
separate, actionable unlawful practices.”); Rotteveel v. Lockheed
Martin Corp., 2003 U.S. Dist. LEXIS 12329 at *15 (E.D. Pa. July

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15, 2003)(“[t]he actions upon which plaintiff’s claims are based,
i.e., demotion, failure to promote, etc. . . . constitute
discrete discriminatory acts to which the continuing violation
theory is inapplicable.”)
The Third Circuit’s opinion in O’Connor v. City of Newark,
440 F.3d 125 (3d Cir. 2006) is instructive here. In explaining
the Supreme Court’s decision in Morgan, the Third Circuit
differentiated between the distinct, non-overlapping categories
of “discrete acts” and acts that may constitute a continuing
violation. Judge Fisher wrote:
Morgan established a bright-line distinction
between discrete acts, which are individually
actionable, and acts which are not
individually actionable but may be aggregated
to make out a hostile work environment claim.
The former must be raised within the
applicable limitations period or they will
not support a lawsuit . . . The latter can
occur at any time so long as they are linked
in a pattern of actions which continues into
the applicable limitations period.
O’Connor, 440 F.3d at 127. The Third Circuit concluded that
the “individually actionable allegations” of termination, failure
to promote, denial of transfer, refusal to hire, wrongful
suspension, wrongful discipline, denial of training, and wrongful
accusation “cannot be aggregated” in a hostile work environment
claim. Id. Applying this reasoning to the instant case,
Plaintiff’s January 2013 termination undoubtedly falls into the
category of a “discrete act” which, under the Third Circuit’s
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reading of Morgan,2 may not be used in aggregate with other acts
to constitute a hostile work environment claim. Because Plaintiff
alleges no other acts that fall within the limitations period,
Plaintiff’s hostile work environment claims under the ADEA, ADA,
and PHRA must be dismissed as untimely.
B.

Age-Based Discrimination and Retaliation
1.

Discrimination

The ADEA prohibits employers from discriminating against
individuals in the hiring, discharge, compensation, terms,
conditions, or privileges of employment on the basis of their
age. 29 U.S.C. § 621. To state a claim for age discrimination
under the ADEA and PHRA,3 a plaintiff must show that age was a
but-for cause of the adverse employment action that she
experienced, “that age had a determinative influence on the
outcome.” Gross v. FBL Financial Services, Inc., 557 U.S. 167,
176-77 (2009); see also Smith v. City of Allentown, 589 F.3d 684,
690-91 (3d Cir. 2009). Accordingly, a plaintiff must allege that
(1) she is over forty, (2) she is qualified for the position in

2

The Third Circuit found it “worthy of note that while the Morgan Court
split 5-4 on other issues, it was unanimous on this point. . . there is not a
single vote on the Court for the proposition that individually actionable
discrete acts may support suit outside the limitations period if they are
aggregated and labeled as a hostile environment claim.” O’Connor, 440 F.3d at
129 n.6.
3

The ADEA and PHRA legal standards are coextensive. Kautz v. Met-Pro
Corp., 412 F.3d 463, 466 n.1 (3d Cir. 2005)(citing Glanzman v. Metropolitan
Management Corp., 391 F.3d 506, 509 n.2 (2004)(“The same legal standard
applies to both the ADEA and the PHRA and therefore it is proper to address
them collectively.”)

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question, (3) she suffered from an adverse employment decision,
and (4) her replacement was sufficiently younger to permit a
reasonable inference of age discrimination. Smith, 589 F.3d at
689. Plaintiff’s complaint contains the following factual
allegations: (1) she is 62 years old and thus was older than 40
at the time of her discharge, (2) she served for 10 years in the
position in question with very few negative performance reviews,
(3) she was terminated from this position, and (4) Plaintiff was
gradually scheduled as the Charge Nurse more infrequently while
the position was filled by a 26-year old replacement. Plaintiff’s
eventual replacement, who was hired about a week prior to
Plaintiff’s termination, was “significantly younger” than
Plaintiff. The Court finds the age difference between Plaintiff
and the Charge Nurse who was scheduled instead of Plaintiff, as
well as Plaintiff’s eventual replacement by a younger employee,
to be sufficient to permit a reasonable inference that age
discrimination occurred. The facts presented by Plaintiff, which
the Court accepts as true for the purposes of this motion, are
sufficient to show that Plaintiff has a “plausible claim for
relief” under Twombly.
2.

Retaliation

A claim for retaliation under the ADEA must show that
Plaintiff (1) engaged in protected activity, (2) was subject to
adverse action either subsequent to or contemporaneous with the

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protected activity and (3) there was a causal connection4 between
the protected activity and the adverse action. Fasold v. Justice,
409 F.3d 178, 188 (3d Cir. 2005). Here, Defendants assume that
Plaintiff engaged in protected activity and that her termination
from employment constituted an adverse employment action.
However, Defendants argue that Plaintiff has not alleged
causation.
The element of causation is highly context-specific because
it involves inquiry into the motives of an employer. Fasold, 409
F.3d at 189 (quoting Kachmar v. SunGuard Data Sys., Inc., 109
F.3d 173, 178 (3d Cir. 1997)). “[W]hen only a short period of
time separates an aggrieved employee’s protected conduct and an
adverse employment decision, such temporal proximity may provide
an evidentiary basis from which an inference of retaliation can
be drawn.” Id. at 190 (finding 3 months to provide inference of

4

Defendant urges the Court to apply the heightened “but-for” causation
standard recently articulated for Title VII retaliation claims by the Supreme
Court in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct.
2517 (2013), because the ADEA and ADA’s anti-retaliation provisions contain
statutory language similar to Title VII’s anti-retaliation provision. The
Third Circuit has not yet addressed whether the “but-for” causation test now
applicable to Title VII claims also applies to retaliation claims under the
ADEA and ADA. The Court declines to decide this issue at this time because it
finds Plaintiff’s allegations sufficient under either test.
Additionally, the Court notes the Supreme Court’s warnings that “the
textual differences between Title VII and the ADEA prevented” importing a
specific causation standard from one statute to the other in status-based
discrimination claims. Nassar, 133 S.Ct. at 2527 (internal quotation omitted).
Additionally, the Supreme Court’s detailed analysis of the “interplay among
the status-based discrimination provision . . . the antiretaliation provision
. . . and the motivating-factor provision”, id. at 2533, of Title VII may
caution against a wholesale application of the Nassar analysis to other
statutes at this juncture.

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retaliation). When the evidence of temporal proximity stands
alone, it must be “‘unusually suggestive’ of retaliatory motive
before a causal link will be inferred.” Baker v. United Defense
Industries, Inc., 403 Fed. Appx. 751, 758 (3d Cir. 2010)(nonprecedential)(quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494,
500 (3d Cir. 1997)). However, a causal link can be proven not
only through temporal proximity, but also through various types
of fact-specific circumstantial evidence. Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir. 2000)(evidence of
antagonism, retaliatory animus, inconsistent reasons given for
termination, and temporal proximity may all be probative of a
causal link).
Plaintiff has provided the following facts to support an
inference of a causal connection: Plaintiff was admonished by
Snyder after complaining in 2009 about Mailey’s comments
(Complaint ¶ 19); Plaintiff’s temporary manager Jim Gentiles told
her she was a “rat” for making her second complaint in 2010 and
that she needed to “play nice in the sandbox,” id. ¶ 21; she did
not receive a raise and was scheduled for fewer shifts after
making her third complaint in 2011, id. ¶ 24-26; and that
Plaintiff “had expressed concerns of discriminatory treatment
leading up to her termination.” Id. ¶ 29. These facts are
sufficient at this juncture to raise a reasonable inference that
plaintiff’s termination came about as a result of her complaints.

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Though the Court does not give weight to the legal conclusion
that the treatment was “discriminatory,” Plaintiff’s allegations,
taken as true, establish that she notified Defendant in some form
of her grievances on multiple occasions, including during the
time period immediately preceding her termination, that she
conveyed to Defendant that she believed she was the subject of
discrimination, and that she experienced antagonism and adverse
actions within relatively short time periods thereafter. See
Farrell, 206 F.3d at 280 (“the proffered evidence, looked at as a
whole, may suffice to raise the inference.”) This is enough
factual matter to suggest the required element of causation at
this stage.
Thus, Plaintiff’s claims for discrimination and retaliation
under the ADEA and PHRA may proceed.5
C.

Disability-Based Discrimination and Retaliation
1.

Discrimination

The ADA was enacted to prevent qualified individuals from
being discriminated against in employment based on their
disabilities. Gaul v. Lucent Technologies, Inc., 134 F.3d 576,
579 (3d Cir. 1998). A plaintiff makes out a prima facie case of
discrimination under the ADA when she establishes that she

5

Defendants argue that Plaintiff cannot recover punitive or emotional
distress / compensatory damages under the ADEA. (Def. Mot. at 19). Plaintiff
responds that she is not seeking such damages under the ADEA. (Pl Resp. at
27). Thus, the parties are in agreement that no claim for punitive or
emotional distress damages under the ADEA will proceed.

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(1) has a disability, (2) is a qualified individual, and (3) has
suffered an adverse employment action because of that disability.
Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir.
2006).
Defendants contend that Plaintiff has not alleged that she
has a disability under the ADA. The ADA defines “disability” as
(1) “a physical or mental impairment that substantially limits
one or more major life activities of such individual,” (2) “a
record of such an impairment” or (3) “being regarded as having
such an impairment.” 42 U.S.C. § 12102(1). The statute further
defines “major life activities” as including, but not limited to,
“caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing . . . learning, reading,
concentrating, thinking, communicating, and working.” Id.
§ 12102(2). To determine whether a plaintiff is “substantially
limited,” courts consider the nature and severity of the
impairment, the duration or expected duration of the impairment,
and the permanent or long term impact, or the expected permanent
or long term impact of or resulting from the impairment. Cohen v.
CHLN, Inc., Civ. A. 10-00514, 2011 WL 2713737 at *6 (E.D. Pa.
July 13, 2011). After the passage of the ADA Amendments Act of
2008, the definition of disability is not meant to be a demanding
standard; rather, “the determination of whether an impairment
substantially limits a major life activity requires an

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individualized assessment.” Id. at *7 (citing 29 C.F.R.
§ 1630.2(i)(2); § 1630.2(j)(1)(i)).
The Court finds that Plaintiff’s complaint does not contain
the factual matter required to plead the existence of a
disability. Plaintiff has alleged that she had a “history of
suffering from colitis, anxiety, insomnia, and other cognitive
disabilities.” (Complaint ¶ 30). Plaintiff further alleges that
her conditions “have, at times, limited her ability to enjoy . .
. sleeping, concentrating, communicating, and thinking (and this
is not an exhaustive list).” Id. ¶ 33. The Third Circuit has held
that activities such as thinking, concentrating, and remembering
constitute major life activities under the statute. Gagliardo v.
Connaught Laboratories, Inc., 311 F.3d 565, 569 (3d Cir. 2002).
However, Plaintiff has provided no factual basis for
concluding that her abilities to sleep, concentrate, communicate,
or think are “substantially limited,” as required under the
statute. Crucially, she has provided no facts illuminating to
what extent or how her activities are “limited.” This dearth of
detail makes it impossible to infer that Plaintiff is
substantially limited, as opposed to only somewhat limited or
mildly hampered, in enjoying the major life activities she
enumerates, and precludes the Court from conducting the
“individualized assessment” required to determine whether a
substantial limitation exists. Plaintiff has not adequately pled

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that she has “a mental impairment that substantially limits one
or more major life activities.”
Nor has Plaintiff pled that she was “regarded” as having a
disability. An individual is regarded as having an impairment if
she establishes that “she has been subjected to an action
prohibited under this Act because of an actual or perceived
physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” 42 U.S.C.
§ 12102(3)(A). A plaintiff must “demonstrate that the employer
believed that a wholly unimpaired plaintiff had an impairment
that substantially limited at least one major life activity or
that the employer believed an employee’s actual impairment to
limit major life activities when it in fact did not.” Macfarlan
v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012).
Nothing in Plaintiff’s Complaint suggests either that SMMC
believed that she had a substantially limiting impairment when
she in fact did not, nor that SMMC believed her impairments to be
substantially limiting when they were not. Moreover, even though
Plaintiff alleges that she told Defendant about her conditions,
“the mere fact that an employer is aware of an employee’s
impairment is insufficient to demonstrate . . . that the employer
regarded the employee as disabled.” Kiniropoulos v. Northampton
County Child Welfare Service, 917 F.Supp.2d 377, 386 (E.D. Pa.
2013)(quoting Kelly v. Drexel University, 94 F.3d 102, 109 (3d

18

Cir. 1996)). Plaintiff has not alleged that she was regarded as
having a disability.
Lastly, Plaintiff’s Complaint fails to allege that she has a
record of disability. ADA regulations provide that “[a]n
individual has a record of a disability if the individual has a
history of, or has been misclassified as having, a mental or
physical impairment that substantially limits one or more major
life activities.” 29 C.F.R. § 1630.2(k)(1); see also Eshelman v.
Agere Systems, Inc., 554 F.3d 426, 437 (3d Cir. 2009)(quoting
Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir.
1999)). The plaintiff must also show that the employer “relied
upon [her] record of impairment in making its employment
decision.” Eshelman, 554 F.3d at 437. Plaintiff’s failure to
allege that her mental impairments substantially limit her life
activities mean that she also fails to plead a record of
disability. As explained above, Plaintiff has alleged a
limitation on certain activities, but provided no factual support
permitting an inference that the limitation was substantial.
Plaintiff argues that “it is certainly plausible that
members of Defendant’s management regarded Plaintiff as disabled
and/or had a record of disability. Any evidence . . . would not
be the subject of Plaintiff’s personal knowledge,” and thus she
should be allowed to pursue discovery on these claims. However,
the pleading standard “asks for more than a sheer possibility

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that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
Plaintiff’s plea that discovery may unearth evidence to prove her
claim does not discharge her responsibility to “nudge [her]
claims . . across the line from conceivable to plausible.” Id. at
680 (internal quotation omitted).
Plaintiff’s PHRA claim for discrimination based on her
disability also fails, because the ADA and PHRA are “to be
interpreted consistently, and [] have the same standard for
determination of liability.” Macfarlan v. Ivy Hill SNF, LLC, 675
F.3d 266, 274 (3d Cir. 2012).
2.

Retaliation

A plaintiff alleging disability retaliation under the ADA
and PHRA must plead (1) protected conduct by the plaintiff,
(2) an adverse action by the employer either after or
contemporaneous with the employee’s protected activity, and (3) a
causal connection between the protected conduct and adverse
action. Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d
Cir. 1997). Plaintiff’s allegations regarding disability-based
retaliation are exactly the same as those going to age-based
retaliation, with the exception of her June 2011 complaint which
did not mention disability discrimination. However, even without
this June 2011 complaint, the Court finds for the reasons in C(2)
supra that the facts evidence a pattern of antagonism between the
Plaintiff and her employer over a period of years that, when

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combined with the complaints made by Plaintiff in the time
leading up to her eventual termination, give rise to an inference
that she was terminated because of her disability.
Thus, Plaintiff’s claim for retaliation under the ADA and
PHRA may proceed.6
The Court will not allow Plaintiff to amend her Complaint
because doing so would be futile. Plaintiff could not cure the
fact that her hostile work environment claims are untimely as a
matter of law. Moreover, Defendant made substantially similar
arguments regarding Plaintiff’s disability discrimination claim
in Defendant’s first Motion to Dismiss (Doc. No. 7) as it does in
its current Motion (Doc. No. 10). This first Motion to Dismiss
put Plaintiff on notice of the specific ways in which her
complaint may be deficient. While Plaintiff took the opportunity
to submit an Amended Complaint (Doc. No. 8), she chose not to
alter any of the language alleging that she has a disability
under the ADA. Thus, the Court finds that further amendments
would be futile.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss is
GRANTED in part and DENIED in part.

6

As with Plaintiff’s claims under the ADEA, the parties are in
agreement that Plaintiff cannot and is not pursuing compensatory, punitive, or
emotional distress damages with respect to her ADA retaliation claim, or
punitive damages under the PHRA. See (Def. Mot. at 30-31); (Pl. Response at
42).

21

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DENISE RILEY,

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
ST MARY MEDICAL CENTER and
SUSAN SNYDER,
Defendants.

CIVIL ACTION
NO. 13-cv-7205

ORDER
AND NOW, this

23rd

day of April, 2014, upon

consideration of Defendants’ Motion to Dismiss (Doc. No. 10),
Plaintiff’s Response in opposition thereto (Doc. No. 12) and
Defendants’ Reply in further support thereof (Doc. No. 13), it is
hereby ORDERED that Defendants’ Motion is GRANTED in part and
DENIED in part.
The Motion is GRANTED as to the following claims:
(1) Plaintiff’s hostile work environment claims under
the Americans with Disabilities Act (“ADA”), the Age
Discrimination in Employment Act (“ADEA”), and the
Pennsylvania Human Rights Act (“PHRA”).
(2) Plaintiff’s disability discrimination claims under
the ADA and PHRA.
The Motion is DENIED as to the following claims:
(1) Plaintiff’s age-discrimination and retaliation
claims, based on Plaintiff’s termination, under the
ADEA and PHRA;

(2) Plaintiff’s disability retaliation claim, based on
Plaintiff’s termination, under the ADA and PHRA.

BY THE COURT:

/s/ J. Curtis Joyner
J. CURTIS JOYNER, J.