SORGINI v. WISSAHICKON SCHOOL DISTRICT

Filing 17

MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION TO DISMISS IS DENIED. PLAINTIFF'S UNOPPOSED MOTION FOR AN EXTENSION OF TIME IS DISMISSED AS MOOT; ETC.. SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 4/5/17. 4/5/17 ENTERED AND E-MAILED.(jl, )

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

MARIO SORGINI,
Plaintiff,
v.
WISSAHICKON SCHOOL DISTRICT,
Defendant.

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CIVIL ACTION
NO. 16-1837

MEMORANDUM
Tucker, C.J.

April _5_, 2017

Presently before the Court are Plaintiff’s Complaint (Doc. 1), Defendant’s Motion to
Dismiss (Doc. 6), Plaintiff’s Response to the Motion to Dismiss (Doc. 9), Defendant’s Reply to
the Response (Doc. 12), Plaintiff’s Amended Complaint (Doc. 14), and Defendant’s Amended
Motion to Dismiss (Doc. 15). Upon consideration of the parties’ motions and for the reasons set
forth below, Defendant’s Motion to Dismiss is DENIED.
I.

FACTUAL BACKGROUND
Plaintiff Mario Sorgini (“Plaintiff”) alleges that his employer, Defendant Wissahickon

School District (“Defendant”), violated the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act of 1955 (“PHRA”), 43 P.S.
§§ 951- 963 (2009 CUM. SUPP. 2016). Plaintiff alleges that Defendant constructively discharged
him because of his age and disabilities, and subsequently replaced him with a younger employee.
In 2007, Plaintiff was hired as a building supervisor for Defendant’s Stoney Creek
Elementary School. Am. Compl. ¶ 8. Plaintiff was fifty-one years old at the time. Id. ¶ 5. Since

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2007, Plaintiff suffered several physical impairments including heart and knee problems that
affected his ability to walk or stand without pain for extended periods of time. Id. ¶ 7. These
impairments culminated in Plaintiff suffering a heart attack and undergoing two knee surgeries.
Id. ¶¶ 14–15. Plaintiff also suffered from diverticulitis. Id. ¶ 18. In addition, Plaintiff fell through
a sky light while working at the school in July 2013, which led to chronic pain. Id. ¶ 17. While
employed by Defendant, Plaintiff took a “significant” amount of time off for his surgeries,
injury, and illness. Id. ¶¶ 15–18. In October or November 2013, Maureen 1, a night custodian at
the Elementary School, informed Plaintiff that she overheard Mr. Abbamont, the school
principal, and Mr. Saurman, Plaintiff’s supervisor, discussing the need to terminate Plaintiff due
to his illness and numerous sick leaves. Id. ¶ 19.
On January 9, 2014, Mr. Abbamont met with Plaintiff and expressed concern that
Maureen allowed her boyfriend on school premises without authorization. Id. ¶ 24. Plaintiff
informed Mr. Abbamont that he had no knowledge of this activity. Id. Prior to this meeting,
Plaintiff’s employment performance had never been questioned and he had no disciplinary
history. Id. ¶ 12.
On January 10, 2014, School District officials including Ms. Rossi, the Human Resources
(“HR”) director, Mr. Wade Coleman, the Chief Financial Officer, and Mr. Saurman, Plaintiff’s
supervisor, met with Plaintiff. Id. ¶¶ 29, 32. Ms. Rossi informed Plaintiff that if he did not resign
immediately, he would be terminated for allowing Maureen’s boyfriend on school premises. Id. ¶
39. It is alleged that Ms. Rossi also told Plaintiff that he would not be eligible for disability
pension benefits if he were terminated. Id. ¶ 61. Plaintiff claims that he signed a resignation letter
during the meeting under the threat of immediate termination. Id. ¶ 43; Am. Mot. to Dismiss at 8.
Plaintiff was not represented at the meeting, and claims that he was not informed of his right to
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Defendant’s employees are named throughout this Memorandum Opinion as they are as presented in the record.

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contest termination. Am. Compl. ¶ 43. Plaintiff was fifty-eight years old when he resigned, and
was subsequently replaced by an individual who was younger than forty. 2 Id. ¶¶ 5, 68.
Plaintiff alleges that Defendant had a “liberal practice” of allowing individuals who were
not school employees on school premises. Id. ¶ 54. For example, Plaintiff witnessed Mr.
Abbamont allowing Maureen’s boyfriend on campus. Id. ¶ 55. Plaintiff also witnessed other
employees allowing individuals who were not school employees on school premises. Am.
Compl. Id. These employees included two custodians, a secretary, and a teacher. Id. Neither the
employees nor Mr. Abbamont were disciplined for their actions. Id. Unlike Plaintiff, these
employees were not disabled and were either under the age of forty or younger than Plaintiff. Id.
¶ 67. 3
II.

PROCEDURAL HISTORY
Plaintiff filed a timely charge of discrimination with the United States Equal Employment

Opportunity Commission (“EEOC”), which was cross-filed with the Pennsylvania Human
Relations Commission (“PHRC”). Id. ¶ 4. In a hearing before the Pennsylvania Unemployment
Compensation Board concerning whether Plaintiff was eligible for unemployment compensation
benefits, the Referee ruled that Plaintiff did not voluntarily resign. Id. ¶ 60. Finally, Plaintiff
received a Right to Sue Letter from the EEOC and subsequently filed his Complaint in this Court
on April 19, 2016. Id.
III.

STANDARD OF REVIEW
A court may dismiss a plaintiff’s complaint under Rule 12(b)(6) when it does not “‘state

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Plaintiff does not provide further details about his replacement. In the Amended Complaint, Plaintiff alleges
“Defendant hired a person under the age of forty to replace [P]laintiff, on its belief that his replacement would not
have serious health issues like [P]laintiff, which it believed were age related.” Am. Compl. ¶ 68
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In the Amended Complaint, Plaintiff did not include the date on which he filed the charge of discrimination with
the EEOC, the date of the Benefits hearing before the Pennsylvania Unemployment Compensation Board, or the
date he received the Right to Sue letter from the EEOC.

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a claim to relief that is plausible on its face.’” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268
(3d Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In light of the Supreme
Court’s rulings in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662 (2009), the district court conducts a three-part analysis in evaluating a motion to
dismiss for failure to state a claim. Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir.
2016).
First, the court “must ‘tak[e] note of the elements [the] plaintiff must plead to state a
claim.’” Id. (quoting Iqbal, 556 U.S. at 675). Second, the court “should identify allegations that,
‘because they are no more than conclusions, are not entitled to the assumption of truth.’” Id.
(quoting Iqbal, 556 U.S. at 679). Accordingly, the court “must accept all of the complaint’s wellpleaded facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578
F.3d 203, 210–11 (3d Cir. 2009). Lastly, after accepting the well-pleaded factual allegations and
“‘assum[ing] their veracity . . . [the court must] determine whether they plausibly give rise to an
entitlement to relief.’” Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 679). A complaint
is plausible on its face when its factual allegations allow a court to draw a reasonable inference
that a defendant is liable for the harm alleged. Santiago v. Warminster Twp., 629 F.3d 121, 128
(3d Cir. 2010). A plaintiff may survive a motion to dismiss if the “[f]actual allegations [are]
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
In Fowler v. UPMC Shadyside, the Third Circuit held that the heightened standard of
plausibility set forth by Iqbal and Twombly applies to pleadings in an employment discrimination
context. 578 F.3d at 213. However, this heightened standard does not require a plaintiff to
establish the prima facie case for discrimination in order to survive a motion to dismiss. Id.
(“Even post-Twombly, it has been noted that a plaintiff is not required to establish the elements

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of a prima facie case . . . .”). Rather, to survive a motion to dismiss in an employment
discrimination context, a plaintiff must present factual allegations that would “‘raise a reasonable
expectation that discovery will reveal evidence of the necessary element[s]’” of the prima facie
case. Id. at 213 (citing Philips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).
IV.

DISCUSSION
Plaintiff alleges that Defendant a) constructively discharged him on the basis of his age in

violation of the ADEA and PHRA, and b) constructively discharged him on the basis of his
disability in violation of the ADA and PHRA. A plaintiff may demonstrate that his employer
engaged in “[d]isparate treatment discrimination . . . by either using direct evidence of intent to
discriminate or using indirect evidence from which a court could infer intent to discriminate.”
Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008). The court will consider
evidence as “direct” when the evidence is “‘so revealing of [discriminatory] animus that it is
unnecessary to rely on the [McDonnell Douglas] burden-shifting framework, under which the
burden of proof remains with the plaintiff.’” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261,
269 (3d Cir. 2010) (quoting Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997)).
In the present case, Plaintiff claims that his co-worker overheard the school principal and
Plaintiff’s supervisor discussing the need to terminate Plaintiff due to his illness and sick leaves.
Am. Compl. ¶ 19. Plaintiff also cites the fact that he was replaced by an individual under the age
of forty as evidence of intent to discriminate. This evidence is not “strong enough ‘to permit the
factfinder to infer that a discriminatory attitude was more likely than not a motivating factor in
the [defendant’s] decision[,]’” and therefore is indirect evidence of discrimination. Anderson,
621 F.3d at 269 (quoting Walden, 126 F.3d at 513 (internal quotation marks omitted)).
The Court will use the McDonnell Douglas burden-shifting framework to determine

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whether Plaintiff’s claims of disparate treatment pursuant to the ADEA, ADA, and PHRA should
survive the motion to dismiss, because Plaintiff’s claims are supported by indirect evidence. See
Mindock v. Weir Minerals N. Am., 501 F. App’x. 200, 202 (3d Cir. 2012) (citing Smith v. City of
Allentown, 589 F.3d 684, 689 (3d Cir. 2009)); see also Magerr v. City of Philadelphia, No. 15CV-4264, 2016 WL 1404156, at *4–5 (E.D. Pa. Apr. 11, 2016).
Under McDonnell Douglas,
the plaintiff must first establish a prima facie case of discrimination by showing
that: (1) s/he is a member of a protected class; (2) s/he was qualified for the
position s/he sought to attain or retain; (3) s/he suffered an adverse employment
action; and (4) the action occurred under circumstances that could give rise to an
inference of intentional discrimination . . . . If a plaintiff establishes a prima facie
case of discrimination, then an inference of discriminatory motive arises and the
burden shifts to the defendant to articulate a legitimate, non-discriminatory reason
for the adverse employment action . . . . If the defendant does so, the inference of
discrimination drops and the burden shifts back to the plaintiff to show that the
defendant’s proffered reason is merely pretext for intentional discrimination.
Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). Though the burden of production shifts
between the parties, “the . . . plaintiff at all times bears the ultimate burden of persuasion.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993) (internal quotation marks omitted).
Accordingly, the Court will determine whether Plaintiff satisfied this burden to preclude the
Court from granting the motion to dismiss.
a. Age Discrimination Claim Pursuant to the ADEA
Under the ADEA, it is unlawful for an employer “to discharge any individual or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. §
623(a)(1).
A claim of discrimination pursuant to the ADEA will survive a Rule 12(b)(6) motion to
dismiss if the plaintiff “. . . make[s] factual allegations that, if true, would either (1) establish his
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prima facie case [. . .] or (2) show that age was the ‘but-for’ cause of the challenged adverse
employment action.” Johnson v. Delaware County Juvenile Detention Center, No. 11-CV-1166,
2012 WL 895507, at *7 (E.D. Pa. Mar. 6, 2012). Thus if a plaintiff can allege the prima facie
case required by the first step of McDonnell Douglas, the plaintiff will survive a motion to
dismiss and no further inquiry under McDonnell Douglas is required at this stage. Mindock, 501
F. App’x. at 202. Accordingly, Plaintiff must first demonstrate that he satisfies the prima facie
case for the ADEA.
To establish the prima facie case under the ADEA, the plaintiff must show: “(1) he is
older than 40; (2) he applied for and was qualified for the position; (3) he suffered an adverse
[employment] action; and (4) he was replaced by a sufficiently younger person to support the
inference of age discrimination.” Kargbo v. Philadelphia Corp. for Aging, 16 F. Supp. 3d 512,
521–22 (E.D. Pa. 2014). Plaintiff must make factual allegations that, if true, would meet the
prima facie case for age discrimination.
It is clear that Plaintiff satisfies the first prong of the prima facie case because his
employment relationship with Defendant ended when Plaintiff was fifty-eight years old. Am.
Compl. ¶¶ 5. Additionally, Defendant concedes that Plaintiff satisfies the second prong of the
prima facie case. Am. Mot. to Dismiss at 8. Therefore, the issues are whether Plaintiff can satisfy
the third and fourth prongs of the prima facie case. Accordingly the Court will determine
whether Plaintiff presents factual allegations that would “‘raise a reasonable expectation that
discovery [would] reveal evidence [that] ’” Plaintiff suffered an adverse employment action and
was subsequently replaced by a sufficiently younger person. Fowler, 578 F.3d. at 213 (citing
Philips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).
In regards to the third prong, Plaintiff alleges that he suffered an adverse employment

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action despite the fact that he voluntarily resigned. A plaintiff who voluntarily resigns may,
nonetheless, have suffered an adverse employment action if he was constructively discharged by
the defendant. See Colwell v. Rite Aid Corp., 602 F.3d 495, 502-03 (3d Cir. 2010); see also
Embrico v. U.S. Steel Corp., 245 F. App’x 184, 187 (3d Cir. 2007); see also Baker v. Consol.
Rail Corp., 835 F. Supp. 846, 852 (W.D. Pa. 1993), aff’d, 30 F.3d 1484 (3d Cir. 1994).
An employee is constructively discharged when “a reasonable person in the employee’s
position would have felt compelled to resign-that is, whether he would have had no choice but to
resign.” Embrico, 245 F. App’x at 187 (citing Connors v. Chrysler Financial Corp., 160 F.3d
971, 976 (3d Cir.1998)). When considering whether a plaintiff was constructively discharged, the
court will “search the record for indicia of subtle coercion, such as threats of discharge,
suggestions to the employee that he resign or retire, demotions or reductions in pay or benefits,
alterations in job responsibilities, unfavorable performance evaluations, and false accusations of
stealing or misconduct.” Baker, 835 F. Supp. at 852. A voluntary decision to resign must be
“informed, free from fraud or misconduct, and made after due deliberation.” Embrico, 245 F.
App’x at 187 (citing Baker, 835 F. Supp. at 852.).
Plaintiff alleges he was constructively discharged because he was subject to false
accusations of misconduct and threats of discharge. Plaintiff claims that on January 9 and 10,
2014, he was falsely accused of letting unauthorized personnel on school premises. Am. Compl.
¶¶ 24, 39. These accusations culminated in a meeting between Plaintiff and school district
administrators, during which Plaintiff was told that he would be terminated for his misconduct if
he did not resign during the meeting. Am. Compl. ¶ 39. Given these time constraints, Plaintiff
clearly did not have the opportunity for due deliberation before making the decision to sign his
resignation letter. Am. Compl. ¶ 43; Am. Mot. to Dismiss at 8. Arguably, Plaintiff’s decision to

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resign was not “informed” because he was not represented at the meeting. Am. Compl. ¶ 43.
In the Amended Complaint, Plaintiff presented factual allegations that would “‘raise a
reasonable expectation that discovery will reveal evidence” that he was constructively
discharged, and therefore suffered an adverse employment action. Fowler, 578 F.3d. at 213
(citing Philips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)). The Court therefore
concludes that Plaintiff satisfies the third prong of the prima facie case.
To satisfy the fourth prong of the prima facie case, Plaintiff alleges that an individual
under the age of 40 replaced him. Am. Compl. ¶ 68. This allegation “‘raise[s] a reasonable
expectation that discovery will reveal evidence” that a sufficiently younger individual replaced
Plaintiff; therefore Plaintiff satisfies the fourth prong of the prima facie case. Id.
Plaintiff met his burden to overcome the first step of the McDonnell Douglas framework
by satisfying the elements of the prima facie case for age discrimination under the ADEA. Thus,
Plaintiff’s claim of age discrimination survives the motion to dismiss.
b. Disability Discrimination Claim Pursuant to the ADA
The ADA prohibits employers from discriminating “against a qualified individual with a
disability because of the disability of such individual in regard to . . . the hiring, advancement, or
discharge of employees, . . . and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). Under the ADA, a “qualified individual” is a person “with a disability who,
with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). A person has
a “disability” if he “[has] a physical or mental impairment that substantially limits one or more of
[his] major life activities . . .” 42 U.S.C. § 12102(2). At the pleading stage, a plaintiff’s mere
allegation of disability qualifies him for protection under the ADA. Fowler, 578 F.3d at 214.

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Plaintiff qualifies for protection under the ADA. In the Amended Complaint, Plaintiff
alleged several musculoskeletal and cardiovascular physical impairments that limit major life
activities, including heart and knee problems that affected his prolonged ability to walk or stand
without pain. Am. Compl. ¶ 7. Because Plaintiff qualifies for protection, the Court will
determine whether Plaintiff’s claim survives the motion to dismiss by analyzing whether Plaintiff
satisfies the prima facie case for disability discrimination under the ADA. 4 See Fortes v.
Boyertown Area Sch. Dist., No. 12-CV-6063, 2014 WL 3573104, at *10 (E.D. Pa. July 18,
2014).
To establish the prima facie case under the ADA, the plaintiff must show “1) [he] is
otherwise qualified to perform the essential functions of the job, with or without reasonable
accommodations by the School District; and 2) [he] has suffered an otherwise adverse
employment decision as a result of discrimination based on [his] disability.” Id. (citing Taylor v.
Phoenixville School Dist., 184 F.3d 296, 306 (3d Cir. 1999)).
In regards to the first prong, an individual may be qualified to perform the essential
functions of a job based on relevant job experience. See, e.g. id. at *8 (finding that the plaintiff
was qualified to be an English teacher based, in part, on her years of teaching experience).
Plaintiff has seven years of experience as a building supervisor; thus, he satisfies the first prong
of the prima facie case. Am. Compl. ¶ 8, 39.
To satisfy the second prong of the prima facie case, Plaintiff must allege that he suffered
a discriminatory adverse employment decision due to his disabilities. Constructive discharge as a
result of a plaintiff’s disability will satisfy the second prong’s adverse employment decision
requirement. Embrico, 245 F. App’x at 187. To determine whether an employee was

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In the Amended Motion to Dismiss, Defendant does not contest that Plaintiff satisfies the definition of a disabled
or qualified individual under the ADA, but also does not concede that Plaintiff satisfies either definition.

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constructively discharged, the court will consider whether “the [employer] permitted conditions
so unpleasant or difficult that a reasonable person would have felt compelled to resign.” Colwell,
602 F.3d at 502 (3d Cir. 2010) (quoting Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167
(3d Cir. 2001)). If an employer “‘threatened [the employee] with discharge’ or ‘urge[d] or
suggest[ed] that [he] resign or retire . . .” it is relevant to the court’s consideration of whether the
employee was constructively discharged. Id. at 503.
Plaintiff satisfies the second prong of the prima facie case because he presents factual
allegations in the Amended Complaint that would “‘raise a reasonable expectation that discovery
will reveal evidence” that he was constructively discharged as a result of his disabilities. Fowler,
578 F.3d at 213 (citing Philips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).
Defendants told Plaintiff that he needed to resign or would be terminated because he allowed
non-school personnel on campus; however, non-disabled employees were not disciplined for
similar actions. Am. Compl. ¶¶ 58, 55. Furthermore, Plaintiff alleges that his coworker overheard
Defendant’s administrators discussing the need to terminate Plaintiff due to his illness and sick
leaves. Id. ¶ 19. These allegations raise the reasonable expectation that Plaintiff suffered a
discriminatory adverse employment action due to his disabilities; therefore Plaintiff satisfies the
second prong of the prima facie case. See Fowler, 578 F.3d at 214.
Plaintiff met his burden to overcome the first step of the McDonnell Douglas framework
by satisfying the elements of the prima facie case for disability discrimination under the ADA.
Thus, Plaintiff’s claim of disability discrimination survives the motion to dismiss.
c. Age and Disability Discrimination Claims Pursuant to the PHRA
The PHRA provides that employers shall not discriminate on the basis of “race, color,
religious creed, ancestry, age, sex, national origin or non-job related handicap or disability.” 43

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P.S. § 955(a). The PHRA “is to be interpreted as identical to federal anti-discrimination laws
except where there is something specifically different in its language requiring that it be treated
differently.” Burton v. Teleflex Inc., 707 F.3d 417, 432 (3d Cir. 2013) (quoting Slagle v. Cnty. of
Clarion, 435 F.3d 262, 265 n. 5 (3d Cir. 2006).
The PHRA’s language does not specify that it is to be interpreted differently than the
ADEA and ADA. Thus, the Court’s analysis of Plaintiff’s claims pursuant to the ADEA and
ADA also applies to Plaintiff’s claims pursuant to the PHRA. Accordingly, like Plaintiff’s claims
pursuant to the ADEA and ADA, Plaintiff’s claims pursuant to the PHRA survive the motion to
dismiss.
V.

CONCLUSION
For the reasons explained herein, Defendant’s Motion to Dismiss is denied. An

appropriate Order follows.

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