WORTHINGTON v. CAESARS ENTERPRISE SERVICES, LLC

Filing 16

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 8/11/17. 8/11/17 ENTERED AND COPIES E-MAILED.(mbh, )

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

v.

CIVIL ACTION

CHESTER DOWNS AND MARINA, LLC,
OWNER/LICENSEE OF HARRAH’S
PHILADELPHIA d/b/a HARRAH’S
PHILADELPHIA CASINO AND
RACETRACK

NO. 17-1360

MEMORANDUM RE: DEFENDANT’S MOTION TO DISMISS
Baylson, J.
I.

August 11, 2017

Introduction
Plaintiff Donald Worthington (“Plaintiff”) brings this action against Defendant Chester

Downs and Marina LLC, Owner and Licensee of Harrah’s Philadelphia Casino and Racetrack
(“Defendant”), alleging six claims:
1. (Count I) Disability Discrimination pursuant to the Americans with Disabilities Act,
42 U.S.C. § 12101, et seq., (“ADA”);
2. (Count II) Retaliation pursuant to the ADA;
3. (Count III) Disability Discrimination pursuant to the Pennsylvania Human Relations
Act, 43 P.S. § 951, et seq., (“PHRA”);
4. (Count IV) Retaliation pursuant to the PHRA;
5. (Count V) Retaliation & Interference pursuant to the Family Medical Leave Act, 29
U.S.C. § 2611, et seq., (“FMLA”); and
6. (Count VI) Wrongful Discharge pursuant to Pennsylvania common law
(ECF 8, First Amended Complaint, “FAC”).

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On June 21, 2017, Defendant moved to dismiss the FAC in its entirety; namely, Counts
III and IV for lack of subject matter jurisdiction 1, pursuant to Federal Rule of Civil Procedure
(“FRCP”) 12(b)(1), and Counts I, II, V, and VI for failure to state a claim, pursuant to FRCP
12(b)(6). (ECF 10, Defendant’s Motion to Dismiss, “Def.’s Mot.”). On July 5, 2017, Plaintiff
filed his Opposition, (ECF 11, Plaintiff’s Opposition to Defendant’s Motion to Dismiss, “Pl.’s
Opp’n”), to which Defendant filed a Reply that same day (ECF 12, “Def.’s Reply”). 2
For the reasons explained below, Defendant’s motion will be GRANTED as to Counts I
and III, without prejudice, and with leave to amend, and DENIED as to Counts II, IV, V, and VI.
II.

Factual Background
Plaintiff was employed by Defendant as a “Dealer” from approximately April 28, 2011 to

July 6, 2016, and maintained a satisfactory job performance throughout his employment. (FAC ¶
12). Plaintiff alleges that after he reported another Dealer, Alan Glassman, to Defendant for a
violation of their “Toke Committee bylaws,” Glassman began harassing and verbally abusing
him. (Id.). On June 12, 2016, approximately six months after the harassment began, Plaintiff
reported to Carolyn Rinaldo, a manager, that Glassman signed Defendant’s “early-out list”
several minutes before he was permitted to do so. (Id. ¶ 15). In retaliation, Plaintiff alleges that

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We reject at the outset the contention that the Court does not have subject matter
jurisdiction over the PHRA claims (Count III and IV) because Plaintiff exhausted his EEOC and
PHRA administrative remedies before filing his original complaint. (FAC ¶ 6); see Mandel v. M
& Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013) (“To exhaust, a plaintiff must file a
charge of discrimination with the EEOC and receive a right-to-sue notice from the EEOC.”).
The EEOC Right-to-Sue notice was filed on December 27, 2016, and Plaintiff filed his original
complaint in this Court on March 27, 2017. (FAC at 1). Therefore, Plaintiff did not overlap any
PHRA jurisdiction with that of federal subject matter jurisdiction, and this Court can consider his
PHRA claims.
2
On July 14, 2017, the Court granted Plaintiff’s motion for leave to file a Surreply (see
ECF 13, 14), which the Court has considered in deciding the instant motion.
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“Glassman pushed [him],” and that several employees, including Shanice Flournoy and Kristine
Ferioli, witnessed the altercation. (Id.)
As a result of the incident with Glassman, Plaintiff alleges that he experienced shoulder
pain and numbness in his hand so, with the permission of Bill Totten, Plaintiff’s Shift Manager,
he visited the hospital emergency room. (Id. ¶ 16). Upon arrival, Plaintiff told the hospital that
his injury was “work related” and the emergency room physician completed a Workers’
Compensation Injury Report. (Id. ¶ 17). Plaintiff was then diagnosed with “Brachial Plexus
Injury and Shoulder Strain,” which, Plaintiff alleges, cause “limited range of motion, numbness
in the arms, and hand, and diminished hand strength,” and “substantially impair” Plaintiff’s
major life activities. (Id. ¶¶ 17-18). Plaintiff alleges that, upon discharge, he was “referred to a
physical therapist and orthopedist for further evaluation.” (Id.).
On June 14, 2016 Plaintiff completed an incident report with Tim Kreischer, a Labor
Relations Manager, Hennarie Trivuiano, an Assistant Shift Manager, and Veronica Durham, a
Risk Manager. (Id. ¶ 19). Plaintiff alleges he disclosed his diagnosis to those individuals, and
that thereafter, Defendant perceived him as disabled. (Id.). Plaintiff also alleges that during this
meeting, he expressed to Kriescher, Trivuiano, and Durham his intent to file a claim for workers’
compensation benefits, but that Kriescher stated in response that Plaintiff’s injury was not work
related, such that he was ineligible for worker’s compensation benefits. (Id. ¶ 20).
On June 15, 2016 Plaintiff requested a six-month medical leave of absence, pursuant to
the FMLA, which was approved and became effective immediately. (Id. ¶ 22).
On July 6, 2016—three weeks after his FMLA leave commenced—Defendant terminated
Plaintiff’s employment, citing the June 12, 2016 incident with Glassman as the reason. (Id. ¶
23). Plaintiff alleges, by contrast, that the reason for his termination was his “actual and/or

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perceived disabilities and/or record of impairment,” in retaliation for his request for FMLA
medical leave, and for his expression of intent to file a claim for worker’s compensation benefits.
(Id. ¶ 24).
III.

Legal Standard
In considering a motion to dismiss under Rule 12(b)(6), “we accept all factual allegations

as true [and] construe the complaint in the light most favorable to the plaintiff.” Warren Gen.
Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal quotation marks and citations
omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The Court in Iqbal explained that, although a court must accept as true all of the factual
allegations contained in a complaint, that requirement does not apply to legal conclusions;
therefore, pleadings must include factual allegations to support the legal claims asserted. Id. at
678, 684. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” (Id. at 678) (citing Twombly, 550 U.S. at 555); see also
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (“We caution that without
some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she
provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim rests.”) (citing Twombly,
550 U.S. at 556 n.3). Accordingly, to survive a motion to dismiss, a plaintiff must plead “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
A complaint may be dismissed under Rule 12(b)(6) for failure to exhaust administrative
remedies if the plaintiff does not submit a complaint to the EEOC or relevant state agency and

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obtain a right-to-sue letter, because both actions are prerequisites to filing suit under Title VII.
Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997). In considering a motion to dismiss on
these grounds, a court may consider the EEOC administrative record without converting the
motion into one for summary judgment. Concha v. Perfecseal, Inc., No. CIV.A. 13-5709, 2014
WL 4634965, at *1 (E.D. Pa. Sept. 15, 2014).
IV.

Discussion
A. Count I: ADA Disability Discrimination
Defendant first argues that Plaintiff has failed to state a claim for ADA disability

discrimination. (Def.’s Mot. at 5). To state a claim for discrimination under the ADA, a plaintiff
must show: “(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise
qualified to perform the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) he has suffered an otherwise adverse employment
decision as a result of discrimination.” Gaul v. Lucent Technologies, 134 F.3d 576, 580 (3d Cir.
1998) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996); see also Ostrowski v. Con-Way
Freight, Inc., 543 Fed. App’x 128, 130 (3d Cir. 2013). 3 A “disability” is defined by the ADA as:
“(A) a physical or mental impairment that substantially limits one or more of the major life
activities of [an] individual; (B) a record of such impairment; or (C) being regarded as having

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The Court will consider Count III (PHRA discrimination) with Count I because the test
for disability discrimination is the same under the ADA and PHRA. See Bialko v. Quaker Oats
Co., 434 Fed. App’x 139, 142 (3d Cir. 2011) (“The analytical framework used to evaluate a
disability discrimination claim under the PHRA is effectively indistinguishable from that under
the ADA, thus allowing courts to dispose of both ADA and PHRA claims on the same
grounds.”); see also Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012) (holding
that the ADA and the PHRA are “to be interpreted consistently,” and that both “have the same
standard for determination of liability”).

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such an impairment.” 42 U.S.C. § 12102(2); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296,
305–06 (3d Cir. 1999).
Defendant argues that Plaintiff has failed to satisfy the first prong of the ADA
discrimination test –that he is a “disabled person”– within the meaning of the ADA. (Def.’s
Mot. at 5). Defendant argues that Plaintiff’s allegations merely list symptoms that Brachial
Plexus Injury and Shoulder Strain generally cause, rather than allege facts to establish that his
alleged diagnosis actually limited him or constituted a substantial limitation in his major life
activities. (Id.).
Plaintiff contends, by contrast, that he sufficiently alleged that he is a “disabled person”
because he alleged that Brachial Plexus Injury and Shoulder Strain impede two major life
activities: lifting and grasping things. (Pl.’s Opp’n at 9; FAC ¶ 18). Plaintiff argues that “it is
abundantly clear Plaintiff experienced the same [symptoms], as he pled he was diagnosed with
the very conditions that cause said symptoms.” (Pl.’s Opp’n at 11).
The Court finds that Plaintiff’s allegations, though general, are sufficient at this stage to
satisfy the “disabled person” prong of his ADA claim. Courts in this District frequently find
these kinds of “bare-boned” allegations sufficient to state a claim under the ADA. See, e.g.,
Hudson v. Catch, Inc., No. CV 16-2032, 2016 WL 8716462, at *5 (E.D. Pa. Oct. 7, 2016)
(finding the plaintiff’s allegations that he suffered from “a form of PTSD” and that he had
“trouble sleeping, [and] starting smoking cigarettes[,]” albeit “bare-boned,” sufficient to satisfy
the “disabled person” prong); Alifano v. Merck & Co., 175 F. Supp. 2d 792, 797 (E.D. Pa. 2001)
(concluding that Plaintiff had sufficiently satisfied the “disabled person” element of her ADA
claim by simply stating her physical impairment, fibromyalgia and chronic fatigue, and listing a
few of her symptoms, including body aches and pains, headaches, and lightheadedness); cf

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Hughes v. City of Bethlehem, 294 Fed. App’x 701, 705 (3d Cir. 2008) (dismissing Plaintiff’s
ADA claims for failure to demonstrate she was a disabled person after presenting no evidence of
any limitation her Type II Diabetes caused on her daily life.).
To state a claim under the ADA, Plaintiff must also adequately allege facts to support the
third prong, that “he has suffered an otherwise adverse employment decision as a result of
discrimination.” Gaul, 134 F.3d at 580. Adverse employment actions include “[n]ot only
adverse actions motivated by prejudice and fear of disabilities, but also include failing to make
reasonable accommodations for a plaintiff’s disabilities.” Taylor, 184 F.3d at 306. As the Third
Circuit has recently held, and both parties recognized, a request for FMLA medical leave “may
qualify, under certain circumstances, as a request for a reasonable accommodation under the
ADA[.]” Capps v. Mondelez Global LLC, 847 F. 3d 144 (3d Cir. 2017); (Def.’s Mot. 11; Pl.’s
Opp’n at 10).
Defendant argues that Plaintiff failed to adequately allege the third element of his ADA
claim because he failed to allege any facts—such as Defendant’s “thoughts on or reactions to his
[Plaintiff’s] alleged ‘disability’”—to establish that the adverse employment action, Plaintiff’s
termination, was a result of his disability. (Def.’s Mot. at 9).
Plaintiff argues that he adequately alleged that his termination severed his six-month
FMLA medical leave prematurely, and constituted a failure to accommodate his disability.
Specifically, Plaintiff contends, “Defendant’s claim that it accommodated Plaintiff’s request for
a reasonable accommodation by providing [Plaintiff] less than one sixth of the leave requested
and terminating his employment for utilizing said leave is simply insufficient.” (Pl.’s Opp’n at
11).

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Preliminarily, the Court agrees, as the parties acknowledge, that Plaintiff’s termination
while on FMLA leave may constitute a failure to reasonably accommodate a disability which, in
turn, can constitute an “adverse employment action,” within the meaning of the ADA. Capps,
847 F. 3d at 155. However, the Court finds that Plaintiff has still failed to establish the third
element of his ADA discrimination claim because he does not allege any facts to show that the
alleged “adverse employment action”—his termination—was “a result of discrimination” rather
than due to Plaintiff’s altercation with Glassman.
While the ADA prevents an employer from discharging an employee based on his or her
disability, “[a]n employer is not liable . . . for terminating an employee during . . . his FMLA
leave when the reason for termination is not related to the employee’s use of FMLA.” Spring v.
Sealed Air Corp., 483 Fed. App’x 765, 768–69 (3d Cir. 2012). This is true “even if that
misconduct is related to his disability.” Reinhart v. Mineral Techs. Inc., No. CIV.A. 05-4203,
2006 WL 4050695, at *9 (E.D. Pa. Nov. 27, 2006). Here, Plaintiff has failed to allege that his
termination was “a result of his disability.” Here, the FAC is insufficient because Plaintiff, at
most, alleges that his termination was somehow “related to” his disability—in that his altercation
with Glassman caused his alleged disability— rather than because of his disability.
Accordingly, Defendant’s motion to dismiss Count I will be granted, without prejudice
and with leave to amend.
B. Count II: ADA Retaliation
Defendant also moves to dismiss Count II of Plaintiff’s Complaint, which alleges that
Defendant retaliated against Plaintiff for exercising his rights under the ADA. (Def.’s Mot. at 12;
FAC ¶ 28).

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To state a claim for retaliation under the ADA, “the plaintiff must show: (1) he engaged
in an ADA protected activity, (2) he suffered an adverse employment action by the defendant
employer (before or after the protected activity), and (3) there is a causal connection between the
protected activity and the adverse employment action.” Kaniuka v. Good Shepherd Home, 05CV-02917, 2006 WL 2380387 at *5; see Henderson v. Edens Corp., No. 09-cv-1308, 2015 WL
4977189 at *9 (E.D. Pa. Aug. 20, 2015) (Baylson, J.).
To establish the third element of an ADA retaliation claim, a plaintiff must prove, “either
(1) an unusually suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.”
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
Defendant argues that Plaintiff’s retaliation claims fails two-fold: (1) because his
allegation that he engaged in a “protected activity” by requesting FMLA leave is “vague and
conclusory” (Def.’s Mot. at 12-13); and (2) because he fails to allege facts that would establish a
causal connection between any alleged protected activity and the “adverse action,”, i.e. his
termination. (Id.). Specifically, Defendant avers that the “temporal proximity” between
Plaintiff’s FMLA request and his termination is insufficient because the three-week gap is not
“unduly suggestive” of retaliation. (Def.’s Mot. at 13). Additionally, Defendant argues, Plaintiff
does not allege any other facts that would show a causal connection, such as any negative
comments from decision makers, a culture against FMLA leave, or a pattern of antagonism
against FMLA leave requests or to Plaintiff personally. (Id.).
Plaintiff contends, by contrast, that all elements of his ADA retaliation claim are satisfied.
First, the “protected activity” he engaged in was his request for a reasonable accommodation, a
six-month medical leave of absence pursuant to the FMLA. (Pl.’s Opp’n at 11). As for the

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causal connection, Plaintiff argues that courts in this Circuit have yet to set a bright-line rule as
to how close in time the alleged protected activity and adverse action must be to be “unduly
suggestive” of retaliation, (id. at 12), and that three weeks is sufficiently proximate to state his
claim. (Id. at 13).
Initially, it is clear that Plaintiff satisfied the first element of his ADA retaliation claim by
alleging that he requested a six-month FMLA medical leave request. (FAC ¶ 22); see Jackson v.
J. Lewis Crozer Library, 445 Fed. App’x 533, 536–37 (3d Cir. 2011) (“An employee’s request
for reasonable accommodation is an ADA protected activity.”); see also Keiffer v. CPR
Restoration & Cleaning 200 F. Supp. 3d 520, 536 (E.D. Pa. Aug. 3, 2016) (finding “a good faith
request for reasonable accommodation is a protected activity.”).
As to the third element, notwithstanding Defendant’s contention to the contrary, the Court
will not conclude, as a matter of law, that the three weeks between Plaintiff’s commencement of
his FMLA leave time and termination was insufficiently proximate such that it could not be
“unduly suggestive” of retaliation. (Pl.’s Opp’n at 12; FAC ¶ 22-23). As Defendant concedes,
the Third Circuit does not have a bright line rule as to what length of time is “unduly
suggestive.” (Def.’s Mot. at 13); see LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d
217, 233 (3d Cir. 2007) (“[t]here is no bright line rule as to what constitutes unduly suggestive
temporal proximity.”); see Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d
Cir. 2012) (collecting cases finding unduly suggestive temporal proximity ranging from two days
to three weeks); cf. Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (finding
temporal proximity not unduly suggestive where three weeks elapsed between protected activity
and adverse employment action); Kier v. F. Lackland & Sons, LLC, No. CIV.A. 14–897, 2014
WL 7192403, at *17 (E.D. Pa. Dec. 17, 2014) (“Absent some intervening antagonism, Plaintiff

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cannot rest solely on a temporal proximity of more than one week.”). Moreover, the Third
Circuit has cautioned that, “the amount of time between the protected activity and the alleged
retaliation is a circumstance to be considered by a fact-finder in determining if the plaintiff has
established the required causation.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189
(3d Cir. 2003).
Accordingly, the Court finds that Plaintiff has sufficiently plead the causal connection
element of his ADA retaliation claim, and Defendant’s motion to dismiss Count II of the FAC
will be denied.
C. COUNT V: FMLA Retaliation
Defendant also moves to dismiss for failure to state a claim for FMLA retaliation. To
state a claim under the FMLA, a plaintiff must show, “that (1) he [or she] took an FMLA leave,
(2) he [or she] suffered an adverse employment decision, and (3) the adverse decision was
causally related to his [or her] leave.” Calero v. Cardone Indus., Inc., No. CIV.A. 11-3192, 2012
WL 2547356, at *6 (E.D. Pa. June 29, 2012) (Baylson, J.) (citing Conoshenti v. Pub. Serv. Elec.
& Gas Co., 364 F.3d 135, 146 (3d Cir. 2004) holding modified by Erdman v. Nationwide Ins.
Co., 582 F.3d 500 (3d Cir. 2009)). Defendant argues Plaintiff failed to allege facts that show he
was an “eligible employee” pursuant to the FMLA, (Def.’s Mot. at 15), and failed to allege a
causal connection existed between his request for FMLA leave and his termination. (Id.).
First, it is beyond dispute that Plaintiff was an “eligible employee” under the FMLA
because he was granted FMLA leave. (FAC ¶ 20); see also Calero, 2012 WL 2547356, at *6
(“An “eligible employee” under the FMLA is entitled to leave, if he or she has a serious health
condition that makes [him or her] unable to perform the functions of [his or her] position.”).

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As for retaliation, the analysis for FMLA retaliation is identical to that for ADA
retaliation, see supra, IV.B, and applies with equal force here.
Accordingly, Plaintiff has adequately alleged an FMLA retaliation claim. 4
D. COUNT VI: Wrongful Discharge
Finally, Defendant moves to dismiss Plaintiff’s wrongful discharge claim. While
Pennsylvania usually does not recognize a cause of action for the wrongful discharge of an atwill employee, it recognizes two exceptions: (1) where the discharge violates clear mandates of
public policy, or (2) where the discharge is intended specifically to cause harm. Foley v.
Presbyterian Ministers’ Fund, 749 F. Supp. 109, 111 (E.D. Pa. Sept. 17, 1990) (citing Geary v.
U. S. Steel Corp., 456 Pa. 171, 177, 319 A.2d 174, 177 (1974)). As Plaintiff notes, courts in this
District have found that—notwithstanding the fact that the public policy exception is a narrow
one—the public policy exception can extend to protect employees who have been terminated
after expressing an intent to file workers’ compensation claims, in addition to those employees
who actually have filed workers’ compensation claims. See Smith v. R.R. Donnelley & Sons
Co., 10-cv-1417, 2011 WL 4346340, at *4-6 (E.D. Pa. Sept. 16, 2011) (discussing Pennsylvania
Supreme Court precedent, and finding that the public policy exception does extend to instances
where “injured employees who have expressed their intent to pursue workers compensation
claims” and noting that “this conclusion aligns with the public policy and is in keeping with the
narrow interpretation of this exception to the at-will employment doctrine.”).

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The Court finds that Plaintiff has also adequately stated a claim for retaliation under the
PHRA (Count IV) because the analyses are identical. See Sherrod v. Philadelphia Gas Works,
209 F. Supp. 2d 443, 451 (E.D. Pa. Mar. 29, 2002), aff’d, 57 Fed. App’x 68 (3d Cir. 2003)
(holding that retaliation claims under the FMLA and PHRA are analyzed under the same
framework).
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Defendant argues, however, that Plaintiff’s wrongful discharge claim fails because
Plaintiff did not actually file a worker’s compensation claim, so his termination did not follow
“protected activity” and therefore could not violate public policy. (Def.’s Mot. at 17).
Plaintiff contends that his allegations are sufficient to state a claim for wrongful
discharge based on a public policy exception, under Pennsylvania law, because when he arrived
at the emergency room, he notified hospital personnel that his injury was work related and they
subsequently completed a Worker’s Compensation Injury Report. (FAC ¶ 17; Pl.’s Opp’n at 14).
Additionally, Plaintiff alleged that after he left the hospital, he also informed Kriescher,
Trivuiano, and Durham that (1) he had notified hospital personnel that his injury was work
related, and (2) he intended to file a claim for worker’s compensation benefits. (FAC ¶ 20; Pl.’s
Opp’n at 15).
Based on the facts alleged in the FAC regarding Plaintiff’s intent to file a worker’s
compensation claim, and the reasoning in Smith, 2011 WL 4346340, at *6, the Court is
adequately persuaded, at this time, that Plaintiff has alleged enough to state a claim for wrongful
discharge under Pennsylvania law, based on the public policy exception to general at-will
employment laws.
V.

Conclusion
For the foregoing reasons, Defendant’s motion will be GRANTED as to Counts I and III,

and DENIED as to Counts II, IV, V, and VI. An appropriate Order follows.

O:\Jessica.2016\17-cv-1360, Worthington v. Chester Downs\Memo Re Motion to Dismiss.docx

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