CLEMENA v. PHILADELPHIA COLLEGE OF OSTEOPATHIC MEDICINE
Filing
16
MEMORANDUM OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 8/11/2017. 8/11/2017 ENTERED AND COPIES E-MAILED.(amas)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GERONIMO CLEMENA
Plaintiff
v.
PHILADELPHIA COLLEGE OF
OSTEOPATHIC MEDICINE
Defendant
:
:
:
:
:
:
:
:
CIVIL ACTION
NO. 17-428
NITZA I. QUIÑONES ALEJANDRO, J.
AUGUST 11, 2017
MEMORANDUM OPINION
INTRODUCTION
Geronimo Clemena (“Plaintiff”) filed an employment discrimination complaint against
his former employer, Philadelphia College of Osteopathic Medicine (“Defendant”), and asserts
allegations of unlawful discrimination and hostile work environment based on, inter alia,
violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”);
42 U.S.C. § 1981 (“§ 1981”); the Americans with Disabilities Act of 1990, as amended by the
ADA Amendments Act of 2008, 42 U.S.C. § 12101 et seq. (“ADA”), and the Pennsylvania
Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”). [ECF 1]. Before this Court is
Defendant’s motion to dismiss the complaint filed pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6), for failure to state a claim upon which relief can be granted. [ECF 9]. Plaintiff
has opposed the motion. [ECF 12]. The issues presented have been fully briefed and, therefore,
this matter is ripe for disposition.
For the reasons set forth herein, Defendant’s motion to dismiss is granted, in part, and
denied, in part.
BACKGROUND
When ruling on a motion to dismiss, this Court must accept as true all the factual
allegations in the plaintiff’s complaint, and construe the complaint in the light most favorable to
the non-movant. Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). The factual allegations contained in
Plaintiff’s complaint are summarized as follows:
Plaintiff alleges that he is a diabetic and that his national origin is Filipino.
(Compl. at ¶¶20-21). On June 25, 2014, Defendant offered Plaintiff a position as
an Operating Engineer on a “‘swing shift’ or irregular workdays” schedule. (Id. at
¶¶22-23). Plaintiff informed Defendant that he preferred a “1st shift work schedule
. . . [working] Monday- Friday; 8:00 am - 4:00 pm with Saturdays and Sundays
off,” yet accepted Defendant’s swing shift offer. (Id. at ¶¶24-26). Plaintiff alleges
that he continuously informed Defendant of his shift preference, and Defendant
assured Plaintiff that he could request a transfer to a first-shift work schedule if
there was a first-shift job opening. (Id. at ¶¶27-28).
Plaintiff contends that in December 2014, an opening for an unspecified
first-shift position became available. (Id. at ¶30). On December 15, 2014, Plaintiff
requested a transfer to the first-shift position from his Chief Facilities Director,
Francis H. Windel (“Windel”). (Id.). During the same conversation, Plaintiff
informed Windel that he had diabetes and that his physician had advised that, as a
diabetic, Plaintiff should regularly get adequate sleep to obtain daily normal
glucose levels and endocrine function. (Id. at ¶¶31-34). Plaintiff explained to
Windel that the swing shift prevented him from obtaining adequate sleep and,
consequently, a normal glucose level. (Id. at ¶¶35-38). Windel stated he would
defer the transfer decision to Plaintiff’s manager, Chris Gearhart. (Id. at ¶42). On
January 12, 2015, Defendant hired a Caucasian employee from the maintenance
department to fill the first-shift opening. (Id. at ¶¶44-45).
On May 4, 2015, a first-shift Operating Engineer position vacancy was
posted. (Id. at ¶47). On May 20, 2015, Plaintiff sent an email to the Human
Resources Assistant Director, Alexis Sherman (“Sherman”) and Windel, formally
requesting a transfer to this first-shift Operating Engineer vacancy. (Id. at ¶48).
That same day, Windel replied by email that the “position would be offered based
on seniority within the staff.” (Id. at ¶49). On June 23, 2015, Plaintiff showed the
Chief Human Resources Officer, Eddie Potts (“Potts”), a letter from his doctor
that indicated the “vital importance of his nocturnal sleep need,” and requested
that Potts provide Plaintiff with an ADA accommodation by transferring him to
the posted first-shift Operating Engineer opening. (Id. at ¶¶50-53). Plaintiff does
not allege when he was not selected for this position, or when and by whom it was
filled.
2
On May 26, 2016, Plaintiff was found sleeping on the job. (Id. at ¶55). On
June 17, 2016, Defendant terminated Plaintiff’s employment. (Id. at ¶54). Plaintiff
alleges that his termination was an instance of “disability discrimination.” (Id.)
On August 18, 2016, Plaintiff filed with the Equal Employment
Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations
Commission a written charge of discrimination against Defendant. (Id. at ¶15(a)).
On November 2, 2016, the EEOC mailed to Plaintiff a Notice of Right to Sue. (Id.
at ¶15(b)). On January 31, 2017, Plaintiff filed his complaint in this matter. [ECF
1].
LEGAL STANDARD
When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court
“must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). The court must “determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Id. at 211
(quoting Iqbal, 556 U.S. at 679). The complaint must do more than merely allege the plaintiff’s
entitlement to relief; it must “show such an entitlement with its facts.” Id. (citation and internal
quotation marks omitted). “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—
‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555). To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff must allege facts sufficient to “‘nudge [his or her] claims across the line from
conceivable to plausible.’” Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 570).
3
DISCUSSION
Plaintiff’s complaint contains four counts. Specifically, at Counts I and II, Plaintiff avers
that Defendant unlawfully discriminated against him because of his race, color, and/or national
origin or, in the alternative, that Defendant’s conduct toward Plaintiff constituted a hostile work
environment, in violation of Title VII1 and § 1981.2 (Compl. at ¶¶56-59, 60-64). Consistent with
these averments, this Court has liberally construed these counts as asserting Title VII and § 1981
claims of denial of transfer, wrongful termination, and hostile work environment.3 At Count III,
Plaintiff avers that Defendant unlawfully discriminated against him because of a disability and/or
a perceived disability or, in the alternative, that Defendant’s conduct toward Plaintiff constituted
a hostile work environment, in violation of the ADA.4 (Id. at ¶¶65-70). Again, consistent with
Under Title VII, it is unlawful for an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1).
1
2
Section 1981 provides that:
All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and property as is enjoyed by
white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981.
3
Generally, the substantive elements of Title VII and § 1981 race employment discrimination
claims are interpreted to be identical. Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009).
4
The ADA provides that:
No covered entity shall discriminate against a qualified individual on the
basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a).
4
these averments, this Court has liberally construed this count as asserting ADA claims of
discrimination based on a failure to accommodate, wrongful termination, and hostile work
environment. Lastly, at Count IV, Plaintiff avers that Defendant unlawfully discriminated against
Plaintiff in violation of his rights under the PHRA. (Id. at ¶¶71-73).
Defendant moves to dismiss Plaintiff’s claims of unlawful employment discrimination on
the grounds that: (1) Plaintiff failed to allege sufficient facts to support the alleged claims; (2)
some of Plaintiff’s Title VII and ADA claims are time-barred because they accrued more than
300 days prior to Plaintiff’s filing of his charge with the EEOC; and (3) Plaintiff’s PHRA claims
should be dismissed for failure to exhaust administrative remedies. In his response, Plaintiff
agrees to withdraw the PHRA claims, without prejudice, but disputes Defendant’s remaining
arguments as to the insufficiency of facts alleged to support his claims and maintains that the
Title VII and ADA claims are not time-barred pursuant to the continuing violations theory.
Notwithstanding, Plaintiff requests leave to amend the complaint in the event this Court grants
Defendant’s motion to dismiss. This Court will address each of Plaintiff’s claims in turn.
Title VII and § 1981 Denial of Transfer Claims
Under Title VII and § 1981, it is unlawful for an employer to discriminate against any
individual with respect to employment and/or employment-related matters because of that
individual’s race and/or color.5 Title VII makes it also unlawful for an employer to discriminate
against any individual because of his or her national origin. Here, Defendant contends that
5
Unlike Title VII, § 1981 only provides a remedy for racial and/or color discrimination, not
national origin discrimination. See Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) (holding
that § 1981 does not provide a remedy to plaintiffs discriminated against “solely on the place or nation of
[their] origin.”); Broom v. Saints John Neumann & Maria Goretti Catholic High Sch., 722 F. Supp. 2d
626, 631 (E.D. Pa. 2010) (citing Saint Francis Coll.); see also Manuel v. City of Philadelphia, 2010 WL
3566767, at *5 (E.D. Pa. Sept. 14, 2010) (Ҥ 1981 only allows claims arising from discrimination based
on race or color.”) (citation and internal quotation marks omitted).
5
Plaintiff’s Title VII and § 1981 denial of transfer claims fail because Plaintiff has not alleged
sufficient facts for this Court to reasonably infer that Defendant’s denial of Plaintiff’s requests to
transfer to the first shift was based on his race, color, and/or national origin.6 This Court agrees.
To assert a viable claim for employment discrimination under Title VII and § 1981, the
plaintiff must allege facts sufficient to show that: (1) he is a member of a protected class; (2) he
is qualified for the position or satisfactorily performed the duties required by his position; (3) he
suffered an adverse employment action; and (4) either similarly-situated non-members of the
protected class were treated more favorably, or the circumstances of the adverse employment
action give rise to an inference of unlawful discrimination. Groeber v. Friedman & Schuman,
P.C., 555 F. App’x 133, 135 (3d Cir. 2014) (Title VII); Wallace v. Federated Dep’t Stores, Inc.,
214 F. App’x 142, 144-45 (3d Cir. 2007) (§ 1981). “While similarly situated does not mean
identically situated, the plaintiff must nevertheless be similar in all relevant respects.” Opsatnik
v. Norfolk S. Corp., 335 F. App’x 220, 222-23 (3d Cir. 2009) (citation and internal quotation
marks omitted). Allegations to consider when comparing a defendant’s treatment of a plaintiff
with its treatment of a similarly-situated non-member of the plaintiff’s protected class include,
but are not limited to, “that the two employees dealt with the same supervisor, were subject to
the same standards, and had engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or the employer’s treatment of
them.” Id. at 223 (citation and internal quotation marks omitted). In addition to direct comparator
allegations, an inference of discrimination can also be supported by allegations “of similar racial
In his complaint, Plaintiff alleges that his “national origin is Filipino.” (Compl. at ¶21). While
Plaintiff does not assert any specific facts concerning his race or color, for purposes of this Memorandum
Opinion, in addressing Plaintiff’s Title VII and § 1981 claims, this Court will liberally construe this
allegation as also an assertion of Plaintiff’s race and color, as well as his national origin. See Schouten v.
CSX Transp., Inc., 58 F. Supp. 2d 614, 618 n.6 (E.D. Pa. 1999) (noting that “insofar as a claim for
discrimination based upon ancestry or ethnic characteristics is actionable under § 1981, it is only because
such a claim is understood to be a claim for race discrimination.”).
6
6
discrimination of other employees, or [allegations] of discrimination from statements or actions
by [the plaintiff’s] supervisors suggesting racial animus.” Golod v. Bank of Am. Corp., 403 F.
App’x 699, 702 n.2 (3d Cir. 2010); see also Hobson v. St. Luke’s Hosp. & Health Network, 735
F. Supp. 2d 206, 214 (E.D. Pa. 2010).
As to the denial of transfer claims, Plaintiff asserts that: (1) on December 15, 2014,
Plaintiff met with Windel and requested a transfer for health reasons to a first-shift opening of an
unspecified position, but on January 12, 2015, this first-shift opening was awarded to a
Caucasian employee from the maintenance department, (Compl. at ¶¶30-45); (2) on May 20,
2015, Plaintiff sent an email to Sherman and Windel formally requesting transfer to the May 4,
2015 first-shift Operating Engineer vacancy, and on June 23, 2015, Plaintiff discussed the health
reasons for his interest in this vacancy with Potts, (id. at ¶¶48, 50-53); and that (3) Plaintiff
continually informed Defendant of his interest in transferring to a first-shift work schedule, and
Defendant assured Plaintiff that he could request a transfer if there was a first-shift opening. (Id.
at ¶¶27-28).
Of these factual allegations, possibly one of them conceivably relates to his claims of
race, color, and/or national origin discrimination: the January 12, 2015 hiring of a Caucasian
maintenance employee to fill a first-shift opening for an unspecified position Plaintiff had
requested. (Id. at ¶¶44-45). However, Plaintiff fails to allege whether the vacancy was for an
Operating Engineer position or some other position for which he was qualified. Thus, as to this
contention, Plaintiff does not satisfy the second prong for a discrimination claim because it is
impossible to determine whether Plaintiff was qualified for the unspecified position. Further,
based on the meager factual allegations pled regarding the requirements of the vacant position, it
is impossible to ascertain whether the individual selected was similarly situated to Plaintiff but
7
treated differently by Defendant. In light of the lack of information, the complaint does not
satisfy the fourth discrimination prong. Consequently, Plaintiff’s Title VII and § 1981 denial of
transfer claims premised on the December 2014 vacancy are deficient and, therefore, are
dismissed.7
As to Plaintiff’s denial of transfer claims premised on his request to transfer to the May 4,
2015 first-shift Operating Engineer vacancy, Plaintiff’s complaint again does not satisfy the
fourth discrimination prong for a denial of transfer claim. The complaint is devoid of any factual
allegations showing that either similarly-situated non-members of Plaintiff’s protected class were
treated more favorably than Plaintiff, or that the circumstances of the adverse employment action
give rise to an inference of unlawful discrimination. The complaint is also devoid of any factual
allegations relating to race, color, and/or national origin regarding the May 4, 2015 first-shift
Operating Engineer vacancy claims. Further, the complaint does not allege if this vacancy was
7
In addition to failing on the merits, this Title VII denial of transfer claim is also time-barred
because it is based on allegations of events that occurred more than 300 days before Plaintiff’s filing of
his charge of discrimination with the EEOC. In a deferral state, such as Pennsylvania, Title VII requires a
complainant to file a charge of discrimination with the EEOC “within three hundred days after the alleged
unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). This time limit is construed as a
statute of limitations, and any claims based on discrete acts occurring prior to that date are time-barred.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Although recognizing that the acts on
which this Title VII claim is based occurred more than 300 days prior to filing his charge, Plaintiff argues
that this claim survives the time-bar under the continuing violations theory. Plaintiff is incorrect. The
Supreme Court indicated that the continuing violations theory does not apply to claims based on discrete
acts, “such as termination, failure to promote, denial of transfer, or refusal to hire,” because “[e]ach
incident of discrimination and each retaliatory adverse employment decision constitutes a separate
actionable unlawful employment practice.” Id. at 114 (internal quotation marks omitted). The continuing
violations theory permits the inclusion of otherwise time-barred factual allegations in valid hostile work
environment claims because “[t]he unlawful employment practice [] cannot be said to occur on any
particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a
single act of harassment may not be actionable on its own.” Id. at 115 (internal quotation marks omitted).
This Court takes judicial notice that the date 300 days prior to Plaintiff’s filing of his charge of
discrimination with the EEOC on August 18, 2016, is October 23, 2015. Thus, all Title VII denial of
transfer claims premised on acts that occurred prior to October 23, 2015, are time-barred. Plaintiff’s
complaint alleges that on January 12, 2015, Defendant chose a Caucasian employee from the maintenance
department to fill the December 2014 first-shift opening that Plaintiff had previously requested. (Compl.
at ¶¶44-45). This denial of transfer claim effectively accrued on January 12, 2015, the date the first-shift
opening Plaintiff requested was filled by someone other than the Plaintiff and, therefore, is dismissed as
time-barred.
8
ever filled. Thus, Plaintiff’s Title VII and § 1981 denial of transfer claims premised on the May
4, 2015 vacancy are deficient and, therefore, are dismissed.
Likewise, Plaintiff’s Title VII and § 1981 denial of transfer claims premised on the
allegation that he “continually informed Defendant that he wanted to make the transfer to a
standard work schedule” lack sufficient specificity to survive a motion to dismiss. (Id. at ¶27).
Plaintiff’s contention is a mere “naked assertion[] devoid of further factual enhancement.” Iqbal,
556 U.S. at 678 (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 557).
Plaintiff’s complaint does not provide the dates, other than the dates specifically addressed
above, on which he made these continual requests, whether the requests were made to fill an
existing first-shift vacancy, or who Defendant chose to fill the specific openings Plaintiff
allegedly continually requested. See e.g., Vuong v. Mgmt. of J.C. Penney’s Co., 169 F. App’x
675, 677 (3d Cir. 2006) (affirming grant of summary judgment of Title VII denial of transfer
claims where the plaintiff failed to present evidence showing that the positions the employee
requested existed or had openings at the times she applied). Plaintiff’s Title VII and § 1981
denial of transfer claims premised on his vague assertion of continually requesting transfer to the
first shift are deficient and, therefore, are dismissed. In sum, all of Plaintiff’s Title VII and §
1981 denial of transfer claims are dismissed.
Title VII and § 1981 Wrongful Termination Claims
Defendant also argues that Plaintiff has failed to plead facts sufficient to show that
Defendant terminated Plaintiff because of his race, color, and/or national origin. This Court
agrees. For a Title VII or § 1981 wrongful termination claim to survive a motion to dismiss, the
plaintiff must assert “sufficient factual matter that permits the reasonable inference that [he] was
terminated or retaliated against because of [his] race [] and/or national origin.” Golod, 403 F.
9
App’x at 702. Plaintiff’s complaint contains no factual allegations connecting Plaintiff’s
termination to his race, color, and/or national origin. While Plaintiff asserts that he is part of a
protected class because he is Filipino, (Compl. at ¶21), the complaint is devoid of any allegations
that similarly-situated non-members of his protected class were treated more favorably or any
other facts that could support an inference of discrimination regarding his termination. In fact,
Plaintiff describes his termination as “an act of even more grotesque disability discrimination . . .
.” (Id. at ¶54) (emphasis added). Plaintiff simply does not assert any facts that would permit this
Court to infer or conclude that he was terminated on account of his race, color, and/or national
origin. Plaintiff’s Title VII and § 1981 wrongful termination claims are deficient and, therefore,
are dismissed. See Jenkins v. Polysciences, Inc., 2017 WL 1361689, at *3 (E.D. Pa. Mar. 29,
2017) (dismissing the plaintiff’s Title VII claim for failure to plead any facts that would have
raised a reasonable inference that the defendant terminated the plaintiff because of the plaintiff’s
race).
Title VII and § 1981 Hostile Work Environment Claims
Defendant argues that Plaintiff’s complaint does not allege facts sufficient to show that a
hostile work environment was created or caused by Defendant’s actions relating to Plaintiff’s
race, color, and/or national origin. This Court agrees.
To assert a viable hostile work environment claim under Title VII and § 1981, a plaintiff
must allege facts sufficient to show that: (1) the plaintiff suffered intentional discrimination
because of his race, color, and/or national origin; (2) the discrimination was severe or pervasive;
(3) the discrimination detrimentally affected him; (4) the discrimination would have
detrimentally affected a reasonable person in similar circumstances; and (5) a basis for
respondeat superior liability existed. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d
10
Cir. 2013) (Title VII); Castleberry v. STI Grp., 863 F.3d 259, 2017 WL 2990160, at *2 (3d Cir.
July 14, 2017) (§ 1981) (citations and internal quotation marks omitted). The severe or pervasive
requirement presents alternative possibilities. That is, “some harassment may be severe enough
to contaminate an environment even if not pervasive; other, less objectionable, conduct will
contaminate the workplace only if it is pervasive. . . . [A]n isolated incident of discrimination (if
severe) can suffice to state a claim for harassment.” Castleberry, 2017 WL 2990160, at *3
(citation and internal quotation marks omitted). When determining whether a plaintiff’s
complaint satisfies the second element of a Title VII or § 1981 hostile work environment claim,
courts consider the entirety of the circumstances, including “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris
v. Forklift Sys., 510 U.S. 17, 23 (1993); see also Mandalapu v. Temple Univ. Hosp., 2016 WL
5404466, at *7 (E.D. Pa. Sept. 27, 2016) (dismissing employee’s § 1981 hostile work
environment claim for failure to plead factual allegations that suggested the workplace
environment “interfered with Plaintiff’s work performance” and was “permeated with
discriminatory intimidation, ridicule, and insult or was otherwise abusive.”) (citation and internal
quotation marks omitted).
Upon review of the complaint, Plaintiff states two factual allegations relating to race,
color, and/or national origin, to wit: that (1) Plaintiff is Filipino, (Compl. at ¶21); and (2) on
January 12, 2015, Defendant hired a Caucasian maintenance employee to fill a first-shift opening
that Plaintiff had previously requested. (Id. at ¶¶44-45). These two factual allegations, separate
or combined, are insufficient to plausibly allege severe or pervasive discrimination based on
11
race, color, and/or national origin. Without more, Plaintiff’s hostile work environment claims are
deficient and, therefore, are dismissed.
ADA Discrimination Claims Based on a Failure to Accommodate
Defendant argues that Plaintiff’s ADA discrimination claims are time-barred and
deficient because Plaintiff did not allege sufficient facts to support an inference that Defendant
denied Plaintiff’s requests to transfer to the first shift because of his disability or perceived
disability.
To assert a viable claim for employment discrimination under the ADA, a plaintiff must
allege facts sufficient to show that the plaintiff: (1) is a disabled person within the meaning of the
ADA;8 (2) is otherwise qualified to perform the essential functions of the job, with or without
reasonable accommodations by the defendant; and (3) suffered an adverse employment decision
because of disability discrimination. See Williams v. Philadelphia Hous. Auth. Police Dep’t, 380
F.3d 751, 761 (3d Cir. 2004) (citations and internal quotation marks omitted). “Adverse
employment decisions in this context include refusing to make reasonable accommodations for a
plaintiff’s disabilities.” Id. Here, Plaintiff premises the third prong of his ADA discrimination
claims on Defendant’s failure to consider his diabetes and provide him with reasonable
accommodations. In order to satisfy the third prong of an ADA discrimination claim based on a
failure to accommodate, the plaintiff must plead the following four elements: (1) the defendant
knew about the plaintiff’s disability; (2) the plaintiff requested accommodations or assistance for
his disability; (3) the defendant did not make a good faith effort to assist the plaintiff in seeking
The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits
one or more major life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment . . . .” 42 U.S.C. § 12102(1)(A)-(C). Plaintiff alleges that he has
diabetes and claims that he is disabled as a result. (Compl. at ¶¶20, 66-67). Defendant has not challenged
Plaintiff’s allegations that his diabetes is a disability within the meaning of the ADA. Therefore, for
purposes of this Memorandum Opinion, this Court will assume that Plaintiff is disabled within the
meaning of the ADA.
8
12
accommodations; and (4) the plaintiff could have been reasonably accommodated but for the
defendant’s lack of good faith. Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010)
(citation and internal quotation marks omitted). Reasonable accommodation is defined in the
relevant regulation, inter alia, as:
[m]odifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired
is customarily performed, that enable an individual with a
disability who is qualified to perform the essential functions of that
position.
29 C.F.R. § 1630.2(o)(1)(ii). Further, shift changes are changes in the workplace condition that
are entirely under the employer’s control and “the ADA contemplates that employers may need
to make reasonable shift changes in order to accommodate a disabled employee’s disabilityrelated difficulties . . . .” Colwell, 602 F.3d at 506. Additionally, “[t]he ADA [has] identified the
reassignment of a disabled employee to a vacant position as a ‘reasonable accommodation’ of an
employee’s disability. Under the ADA’s Title I, an employer’s failure to transfer a disabled
employee to a vacant position constitutes discrimination.” Fowler, 578 F.3d at 208 (citing 42
U.S.C. § 12111(9)); see also 29 C.F.R. § 1630.2(o)(2)(ii) (“Reasonable accommodation may
include but is not limited to . . . [j]ob restructuring; part-time or modified work schedules;
reassignment to a vacant position . . . .”).
Regarding Plaintiff’s failure to accommodate claim premised on Defendant’s failure to
grant his request to transfer him to the December 2014 first-shift opening, Plaintiff’s complaint
does not satisfy the second element of an ADA discrimination claim, i.e. qualification, since it
fails to provide any information about the position or whether Plaintiff was qualified. Thus,
13
Plaintiff’s failure to accommodate claim based on Defendant’s failure to grant his requested
transfer to the December 2014 first-shift opening is deficient and, therefore, is dismissed.9
In contrast, Plaintiff’s failure to accommodate claim premised on the requested transfer to
the May 4, 2015 first-shift Operating Engineer vacancy is supported by factual allegations
sufficient to satisfy each of the pleading requisites for an ADA discrimination claim. First,
Plaintiff alleged that he is a disabled person within the meaning of the ADA. (Compl. at ¶¶20,
66-67). Second, Plaintiff’s allegations support the reasonable inference that, as an Operating
Engineer, he was qualified for the May 4, 2015 first-shift Operating Engineer vacancy. Third,
Plaintiff has plausibly alleged that he suffered an adverse employment decision based on a
failure to accommodate by asserting, to wit: (1) that Defendant knew about Plaintiff’s diabetes
because Plaintiff informed Defendant of his health condition in December 2014 and June 2015,
(id. at ¶¶30-43, 50-53); (2) that Plaintiff requested a transfer to the May 4, 2015 first-shift
vacancy as an ADA accommodation, (id. at ¶¶50-53); (3) that although the complaint does not
provide whether this vacancy was filled, Defendant clearly did not accommodate Plaintiff; and
(4) that because Plaintiff alleges that a first-shift vacancy occurred in December 2014 and
another in May 2015, a reasonable fact-finder can infer that Defendant could have reasonably
9
Additionally, this claim is time-barred because it is premised on factual allegations occurring
before October 23, 2015. See Zankel v. Temple Univ., 245 F. App’x 196, 198 (3d Cir. 2007) (Under 42
U.S.C. § 12117(a), “[t]he same powers, remedies, and procedures used to enforce Title VII of the Civil
Rights Act of 1964 (‘Title VII’) apply to ADA employment discrimination claims.”); supra at note 7.
(discussing time-barred claims).
Plaintiff again contends that this claim survives under the continuing violations theory. Plaintiff is
again mistaken. “A reasonable accommodation request is a one-time occurrence rather than a continuing
practice, and therefore, does not fit under the continuing violations theory.” Mercer v. SEPTA, 608 F.
App’x 60, 63 (3d Cir. 2015) (referring to Aubrey v. City of Bethlehem, 466 F. App’x. 88, 92 (3d Cir.
2012)); see also Muhammad v. Court of Common Pleas of Allegheny Cty., Pa., 483 F. App’x 759, 762 (3d
Cir. 2012) (affirming the District Court’s reasoning that the continuing violations theory did not apply to
ADA accommodation claims because each failure to accommodate was an independent act).
14
accommodated Plaintiff by transferring him to a first-shift vacancy.10 See, e.g., Colwell, 602
F.3d at 504; 29 C.F.R. § 1630.2(o)(2)(ii) (“Reasonable accommodation may include but is not
limited to . . . [j]ob restructuring; part-time or modified work schedules; reassignment to a vacant
position . . . .”). Therefore, Defendant’s motion to dismiss the ADA discrimination claim
premised on Defendant’s failure to accommodate Plaintiff when he requested transfer to the May
4, 2015 first-shift Operating Engineer vacancy is denied.
Lastly, Plaintiff’s ADA discrimination claim premised on his continual requests to
transfer to a first-shift position does not satisfy the second element of an ADA failure to
accommodate claim. Plaintiff has not pled that when he “continually informed Defendant that he
wanted to make the transfer to a standard work schedule” he was, in fact, requesting an ADA
accommodation for his disability. (Compl. at ¶27). Thus, this aspect of Plaintiff’s ADA
discrimination claim is deficient and, therefore, this claim is dismissed.
ADA Wrongful Termination Claim
Defendant argues that Plaintiff’s ADA wrongful termination claim fails because Plaintiff
did not allege facts sufficient to show that Defendant terminated Plaintiff’s employment because
of his disability or perceived disability rather than because he was found sleeping at work. This
Court disagrees.
10
In its motion, Defendant argued that this claim is barred by the statute of limitations. However, a
motion to dismiss can only be granted based on a statute of limitations, if the statute’s applicability is
apparent on the face of the complaint. Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002); see also
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994); Bethel v. Jendoco
Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (“If the bar is not apparent on the face of the
complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6).”). The
complaint does not allege when or if this position was ever filled by someone else, or closed for another
reason. Therefore, Plaintiff’s termination date will be used for statute of limitations purposes on this claim
at this stage of litigation. See Fowler, 578 F.3d at 209 (holding that an employee’s termination date was
the starting date for statute of limitations purposes for her unlawful disability discrimination claim based
on failure to accommodate by transferring to a vacant position when she was terminated prior to learning
whether the vacant position was filled). As a result, it is not “apparent on the face of the complaint” that
this claim is barred by the statute of limitations and, therefore, Defendant’s motion to dismiss Plaintiff’s
claim on this ground is denied.
15
“To state a cognizable disability discrimination claim, [the plaintiff] must allege that
[his] termination . . . was a pretext or otherwise an instance of discrimination on the basis of
disability.” Zankel, 245 F. App’x at 199. Plaintiff’s allegations that pertain to this claim are that:
(1) “Defendant unlawfully disciplined Plaintiff for falling asleep on or about May 26, 2016 at
work despite being aware of his disability and its intersection with his sleeping problems,”
(Compl. at ¶55); and (2) “[i]n an act of even more grotesque disability discrimination, on or
about June 17, 2016, Defendant unlawfully terminated Plaintiff.” (Id. at ¶54). At this stage in the
litigation, accepting these factual allegations as true and construing them in the light most
favorable to Plaintiff, Plaintiff appears to have alleged sufficient facts suggesting unlawful
disability discrimination surrounding his termination. See Phillips, 515 F.3d at 233 (citing
Pinker, 292 F.3d at 374 n.7). Therefore, Defendant’s motion to dismiss Plaintiff’s ADA
wrongful termination claim is denied.
ADA Hostile Work Environment Claim
Defendant argues that Plaintiff’s ADA hostile work environment claim fails because
Plaintiff’s complaint only alleges discrete acts, and does not assert facts sufficient to show that
Defendant discriminated against Plaintiff because of his disability or perceived disability. In
response, Plaintiff argues that repeated refusals to accommodate are not discrete acts, but rather,
constitute a continuing violation that culminated in his termination. Plaintiff requests that this
Court permit discovery to determine the severity or pervasiveness of the alleged discrimination.
Plaintiff’s argument, however, is misguided.
To assert a viable hostile work environment claim under the ADA, the plaintiff must
allege facts sufficient to show that: (1) the plaintiff is a qualified individual with a disability
under the ADA; (2) the plaintiff was subjected to unwelcome harassment; (3) the plaintiff was
16
harassed because of his disability or a request for an accommodation; (4) the harassment of the
plaintiff was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment
and to create an abusive working environment; and (5) the defendant knew or should have
known of the harassment and failed to take prompt effective remedial action. Walton v. Mental
Health Ass’n. of Se. Pennsylvania, 168 F.3d 661, 667 (3d Cir. 1999).
The complaint does not satisfy the pleading requirement for any of the elements, save the
first one. The only allegations related to Defendant’s treatment of Plaintiff on account of his
disability or perceived disability are that he was discriminated against by not being
accommodated, and that he was terminated. These allegations do not set forth a claim for hostile
work environment, and nothing in Plaintiff’s allegations even suggests that Plaintiff was subject
to an abusive working environment on account of his disability or his requests for
accommodation. As Plaintiff has failed to allege any facts supporting his ADA hostile work
environment claim, this claim is dismissed.
PHRA Claims
In Count IV of the complaint, Plaintiff avers that Defendant unlawfully discriminated
against Plaintiff in violation of his rights under the PHRA. (Compl. at ¶¶71-73). Defendant
moves to dismiss these claims for failure to exhaust administrative remedies. As noted, in his
response, Plaintiff acknowledged his failure to exhaust administrative remedies and requested
permission to withdraw his PHRA claims, without prejudice, to file them again after August 18,
2017. Defendant does not state any objection to this request in its reply brief. [ECF 15].
Accordingly, this Court will permit Plaintiff to withdraw his PHRA claims without prejudice.11
11
In his opposition to the motion to dismiss, Plaintiff requests leave to amend the complaint. At this
juncture, this Court declines to rule on Plaintiff’s request for leave to amend the complaint and directs
Plaintiff to Rule 15.
17
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is granted, in part, and denied,
in part, as follows:
I.
II.
III.
Plaintiff’s claims pursuant to Title VII of the Civil Rights Act of 1964 are dismissed.
Plaintiff’s claims pursuant to 42 U.S.C. § 1981 are dismissed.
Plaintiff’s claims pursuant to the Americans with Disabilities Act of 1990, as amended by
the ADA Amendments Act of 2008, are dismissed, except for Plaintiff’s disability
discrimination claim premised on Defendant’s failure to accommodate Plaintiff when he
requested transfer to the May 4, 2015 first-shift Operating Engineer vacancy and
Plaintiff’s wrongful termination claim.
IV.
Plaintiff’s claims pursuant to the Pennsylvania Human Relations Act are withdrawn by
agreement.
An Order consistent with this Memorandum Opinion follows.
NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?