WAINBERG v. DIETZ & WATSON, INC.

Filing 14

MEMORANDUM AND ORDER THAT DEFENDANT DIETZ & WATSON, INC.'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT IS DENIED; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 11/28/17. 11/28/17 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ADAM WAINBERG,
Plaintiff,

CIVIL ACTION

v.
DIETZ & WATSON, INC.
Defendant.

NO. 17-2457

DuBois, J.

November 28, 2017
MEMORANDUM

I.

INTRODUCTION

In this suit arising under the American with Disabilities Act (―ADA‖), 42 U.S.C. § 12101
et seq., the Pennsylvania Human Relations Act (―PHRA‖), 43 Pa. Con. Stat. §§ 951–63, and
Pennsylvania common law, plaintiff asserts claims against his former employer, Dietz &
Watson, Inc., for disability discrimination under the ADA and PHRA, retaliatory termination for
requesting accommodation under the ADA and PHRA, and wrongful discharge under
Pennsylvania common law for filing a state worker‘s compensation claim. Before the Court is
defendant‘s Motion to Dismiss Plaintiff‘s First Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Because the First Amended Complaint alleges sufficient factual matter
to state a claim for relief that is plausible on its face, defendant‘s Motion is denied.
II.

BACKGROUND

The facts set forth below are drawn from plaintiff‘s First Amended Complaint. The
Court construes that complaint in the light most favorable to the plaintiff, as it must in a motion
to dismiss. The facts set forth in the First Amended Complaint may be summarized as follows:

Plaintiff was employed by defendant as a welder and maintenance employee from around
June 16, 2014, until his termination on or around June 4, 2015. Am. Compl. ¶¶ 10–11. During
this time, plaintiff maintained a satisfactory job performance rating. Id. ¶ 11.
On June 2, 2015, plaintiff sustained an injury while repairing a meat cart. Id. ¶ 12. That
same day, plaintiff informed defendant he was suffering from severe abdominal pain and was
having difficulty bending and standing. Id. ¶ 12. That day, defendant‘s company physician
examined plaintiff and ―completed paperwork necessary to file a Worker‘s Compensation
claim.‖ Id. ¶¶ 12–13. In the paperwork, the company physician described plaintiff‘s impairment
as ―Hernia, pending diagnosis.‖ Id. ¶¶ 13. As an accommodation for plaintiff‘s impairment, the
company physician placed plaintiff on light duty work. Id. ¶¶ 12, 14.
Two days later, on or around June 4, 2015, defendant ―unjustifiably‖ issued plaintiff a
written reprimand for ―working unsafely‖ while repairing the meat cart and terminated plaintiff
before he was able to obtain a formal diagnosis of his impairment. Id. ¶ 16. Plaintiff contends
that defendant does not maintain written procedures for repairing meat carts and that plaintiff‘s
actions were consistent with the practices of other employees. Id. ¶ 17. According to plaintiff,
no other employees were reprimanded or terminated for repairing meat carts in the same manner.
Id.
Plaintiff filed his first Complaint on May 31, 2017. Defendant filed a Motion to Dismiss
the Complaint for Failure to State a Claim on July 26, 2017, after which plaintiff filed his First
Amended Complaint, mooting defendant‘s Motion to Dismiss. The First Amended Complaint
sets forth five claims: disability discrimination under the ADA, retaliation for requesting a
reasonable accommodation under the ADA, disability discrimination under the PHRA,
retaliation for requesting a reasonable accommodation under the PHRA, and wrongful discharge

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under Pennsylvania common law for filing a worker‘s compensation claim. Defendant filed a
Motion to Dismiss Plaintiff‘s First Amended Complaint on August 16, 2017. Plaintiff filed a
response on August 30, 2017. Defendant‘s Motion is now ripe for decision.
III.

LEGAL STANDARD

―The purpose of a 12(b)(6) motion to dismiss is to test the legal sufficiency of the
complaint,‖ not the merits. Nelson v. Temple Univ., 920 F. Supp. 633, 634 n.2 (E.D. Pa. 1996).
To survive a motion to dismiss, plaintiff must allege ―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 (2009).
―A claim has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.‖ Id. at 663. In
assessing the plausibility of the plaintiff‘s claims, a district court first identifies those allegations
that constitute nothing more than ―legal conclusions‖ or ―naked assertions.‖ Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 555, 557 (2007). Such allegations are ―not entitled to the assumption of
truth.‖ Iqbal, 556 U.S. at 679. The court then assesses ―the ‗nub‘ of the plaintiff[‘s]
complaint—the well-pleaded, nonconclusory factual allegation[s]‖—to determine whether it
states a plausible claim for relief. Id.
IV.

DISCUSSION

In the First Amended Complaint, plaintiff asserts claims under the ADA and PHRA for
disability discrimination and retaliation for requesting an accommodation and a claim under
Pennsylvania common law for retaliation for filing a worker‘s compensation claim. In its
Motion, defendant first argues that plaintiff‘s disability discrimination claims under the ADA
and PHRA must be dismissed because his claimed impairment does not qualify as a disability. It
is defendant‘s position that a hernia does not qualify as a disability because it is temporary and

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does not substantially limit a major life activity. Defendant also argues that plaintiff has not
alleged facts showing that similarly situated individuals were treated differently. Finally,
defendant claims that plaintiff‘s retaliation and wrongful discharge claims under the ADA,
PHRA, and Pennsylvania common law must be dismissed because he has not alleged facts
showing a causal nexus between either a protected activity or the filing of his worker‘s
compensation claim and his termination.
A.

Disability Discrimination
1. Disability Under the ADA

Defendant first argues that ―because a hernia is temporary, can be corrected by surgery,
and does not substantially limit a major life activity, a hernia is anyway not a disability under the
ADA.‖ Doc. No. 12-1 at 9. To state a prima facie case of discrimination under the ADA, ―a
plaintiff must show (1) that he is disabled within the meaning of the ADA, (2) that he is
otherwise qualified for the job, with or without reasonable accommodations, and (3) that he was
subjected to an adverse employment decision as a result of discrimination.‖1 Sulima v.
Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010). A plaintiff is ―disabled within the
meaning of the ADA‖ if he satisfies the requirements of one of three statutory prongs: (1) he has
―a physical or mental impairment that substantially limits one or more major life activities of
such individual;‖ (2) he has ―a record of such an impairment;‖ or (3) he has been ―regarded as
having such an impairment.‖ 42 U.S.C. § 12102(1).

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Defendant states that plaintiff must also show that ―a person not within the protected class was
treated more favorably.‖ Doc. No. 12 at 7 (citing Matczak v. Frankford Candy and Chocolate
Co., 136 F.3d 933, 936 (3d Cir. 1997)). Not only has the Third Circuit expressly rejected this as
a required element in a discrimination case, it did so in the opinion cited by defendant. Matczak,
136 F.3d at 939 (―By holding that favorable treatment outside the protected class is an
‗alternative‘ element to a prima facie case, we made clear that this element can be present but by
no means must be present.‖).
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The Court first addresses defendant‘s argument that a temporary impairment may not
constitute a disability. The Court rejects this argument with respect to the ―actual disability‖ and
―record of‖ prongs of the ADA. Defendant‘s argument is not based on current law. Butler v.
BTC Foods, Inc., No. 12-0492, 2014 U.S. Dist. LEXIS 11286, at *8 (E.D. Pa. Jan. 30, 2014). In
2008, Congress passed the ADA Amendments Act (―ADAAA‖) to ―expressly reject[] the
standard that had been embraced by courts stating that . . . the ADA need[ed] to be interpreted
strictly to create a demanding standard for qualifying as disabled.‖ Id. Following passage of the
ADAAA, the ―effects of an impairment lasting or expected to last fewer than six months can be
substantially limiting,‖ and such a ―transitory and minor‖ impairment may still qualify under the
―actual disability‖ or ―record of‖ prongs of the ADA. 29 C.F.R. 1630.2(j)(1)(ix); Bob-Maunuel
v. Chipotle Mexican Grill, Inc., 10 F. Supp. 3d 854, 881 (N.D. Ill. 2014). Consequently, the
temporary nature of a hernia is no bar to plaintiff being disabled under ―actual disability‖ or
―record of‖ prongs of the ADA.
Defendant cites a number of cases to support its contention that temporary impairments
may not qualify as a disability under the ADA. Each of these cases, however, relies on the more
rigorous standard of the ADA prior to its amendment in 2008. Bryant v. Madigan, 84 F.3d 246,
249 (7th Cir. 1996); Jones v. United Parcel Service, 214 F.3d 402, 407 (3d Cir. 2000); Sulima v.
Tobyhanna Army Depot, 602 F.3d 177, 185 n.2 (3d Cir. 2010) (―The ADA was amended in
2008 . . . . The parties here have not argued that these amendments have retroactive effect. The
citations in this opinion are to the statute and regulations as they existed during the events in
question.‖). This more demanding standard has been rejected by Congress and no longer applies
to the ―actual disability‖ and ―record of‖ prongs of the ADA. Butler, 2014 U.S. Dist. LEXIS
11286 at *8.

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Unlike the ―actual disability‖ or ―record of‖ prongs of the ADA, however, a ―transitory
and minor [impairment] . . . with an actual or expected duration of 6 months or less‖ does not
qualify under the ADA‘s ―regarded as‖ prong. 42 U.S.C. § 12102(3)(B); Lackey v. Heart of
Lancaster Reg’l Med. Ctr., No. 16-3986, 2017 U.S. App. LEXIS 13596, at *17 (3d Cir. July 27,
2017). Plaintiff, however, has pled sufficient facts to give rise to a reasonable inference that his
impairment was not transitory and minor. In Butler v. BTC Foods, Inc., the court ruled that a
hernia whose complications lasted seven months constituted a disability under the ADA. 2014
U.S. Dist. LEXIS 11286 at *8. Similarly, in Berkowitz v. Oppenheimer Precision Prods., No.
13-4917, 2014 U.S. Dist. LEXIS 152533, at *9 (E.D. Pa. Oct. 28, 2014), plaintiff‘s hernia
continued to substantially limit major life activities for five years.
Although the First Amended Complaint in this case is silent as to the projected length of
plaintiff‘s claimed disability, he has pled sufficient facts to infer that his impairment may
plausibly persist for six months or more. Defendant may be able to show after discovery that
plaintiff‘s impairment did not last beyond six months, but drawing all reasonable inferences in
favor of plaintiff, as it must, the Court rejects defendant‘s argument on this issue.
Next, the Court turns to defendant‘s argument that plaintiff‘s impairment did not
substantially limit a major life activity. Whether an impairment ―substantially limits‖ a major
life activity under the ―actual disability‖ or ―record of‖ prong is ―not meant to be a demanding
standard.‖ 29 C.F.R. § 1630.2(j)(1)(i), (iii); Butler v. BTC Foods, Inc., 2014 U.S. Dist. LEXIS
11286, at *8; Eastman v. Research Pharm., Inc., No. 12-2170, 2013 U.S. Dist. LEXIS 107935, at
*31 (E.D. Pa. July 31, 2013). An impairment ―need not prevent . . . or significantly or severely
restrict‖ a major life activity as long as the impaired individual is substantially limited ―as
compared to most people in the general population.‖ 29 C.F.R. § 1630.2(j)(1)(ii). The statute

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provides a non-exhaustive list of major life activities, including, but not limited to ―caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working.‖ 42 U.S.C. § 12102(2)(A). Ultimately, ―whether an individual is substantially limited
in a major life activity is a question of fact.‖ Williams v. Phila. Hous. Auth. Police Dep’t, 380
F.3d 751, 759 (3d Cir. 2004).
In the First Amended Complaint, plaintiff has adequately pled that his hernia
substantially impaired his ability to stand, walk, and lift, all of which constitute major life
activities under the ADA. More specifically, he alleges that he suffered from ―severe abdominal
pain and difficulty with bending and lifting.‖ Am. Compl. ¶ 12. Plaintiff further alleges that
defendant‘s own physician ―limited [plaintiff] to light duty work until further notice.‖ Am.
Compl. ¶ 14. These allegations support a reasonable inference that plaintiff‘s impairment
―substantially limited‖ a major life activity.
Other courts have similarly found that a hernia may substantially limit a major life
activity. In Butler v. BTC Foods, Inc., defendant moved for summary judgment, arguing
plaintiff‘s impairment did not ―substantially limit[]‖ a major life activity. 2014 U.S. Dist. LEXIS
11286 at *8. In response, the Butler plaintiff provided evidence, comprised primarily of his own
testimony, that due to his hernia and subsequent hernia surgery, ―he suffered pain and had
difficulty with both ‗bending‘ and ‗lifting‘‖ and ―that seven months after his surgery he
continued to experience some sharp pains when walking or when he bent down for certain
periods of time.‖ Id. at *9. In rejecting defendant‘s motion for summary judgment, the Butler
court conceded that it was ruling on a ―fairly limited body of evidence.‖ Id. Nonetheless,
―pursuant to the stated intent of the ADAAA and the statute‘s command to construe ‗disability‘

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broadly,‖ the court ruled that plaintiff had established a material question sufficient to survive
summary judgment. Id. (internal quotations omitted).
Similarly, the court in Berkowitz v. Oppenheimer Precision Prods, ruled that plaintiff had
provided sufficient evidence that his hernia ―substantially limit[ed]‖ a major life activity. U.S.
Dist. LEXIS 152533, at *9. In that case, plaintiff‘s evidence included doctors‘ reports stating
that he continued to suffer complications from a hernia sustained five years earlier. Id. Plaintiff
also testified that he still had difficulty lifting, sitting, and standing. Id. at *10. Because the
post-amendment ADA requires a ―less searching analysis of whether a plaintiff is substantially
limited,‖ the Berkowitz court held that doctors‘ reports and plaintiff‘s testimony were sufficient
to establish ―a material question as to whether the major life activities of lifting, sitting, and
standing are substantially limited.‖ Id. at *9, 11.
Although the Motion before this Court is one for dismissal—and thus decided under a
different standard than summary judgment—Butler and Berkowitz are instructive. The standard
for ―substantially limits‖ under the post-amendment ADA is not meant to be demanding. As the
courts in Butler and Berkowitz recognized above, a hernia may well substantially limit major life
activities of sitting, standing, and lifting. Under the standard for a motion to dismiss, a plaintiff
need only allege ―sufficient factual matter, accepted as true, to state a claim for relief that is
plausible on its face.‖ Iqbal, 556 U.S. at 678. In this case, plaintiff has adequately alleged
sufficient facts showing his impairment substantially limited a major life activity to qualify as
disabled under the ―actual disability‖ and ―record of‖ prongs of the ADA.
Defendant also argues that ―Plaintiff has presented no evidence—none—that Defendant
regarded Plaintiff as disabled.‖ Doc No. 12-1 at 9. The Court rejects this argument. Following
passage of the ADAAA, a plaintiff satisfies the requirements for the ―regarded as‖ prong of the

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ADA if he establishes he was discriminated against ―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). Consequently, to show defendant regarded him as disabled,
a plaintiff is not required to show the defendant believed the impairment to be substantially
limiting, but only that the defendant ―knew of the purported disability.‖ Rubano v. Farrell Area
Sch. Dist., 991 F. Supp. 2d 678, 693 (W.D. Pa. 2014); accord Mengel v. Reading Eagle Co., No.
11-cv-6151, 2013 U.S. Dist. LEXIS 45300, at *14 (E.D. Pa. Mar. 29, 2013).
Plaintiff in this case has pled facts sufficient to give rise to an inference that defendant
knew of the purported disability and regarded plaintiff as disabled. In particular, defendant‘s
own company physician examined plaintiff, concluded he suffered a hernia, ―pending diagnosis,‖
and placed plaintiff on light work duty as a result. The physician then assisted plaintiff in filing
his worker‘s compensation claim. These allegations are sufficient to reasonably infer that
defendant knew of the purported disability and regarded plaintiff as disabled.
Finally, defendant argues that plaintiff‘s ―self-serving‖ allegations, without a supporting
medical diagnosis, are ―insufficient to find that he is a qualified individual with a disability under
the ADA.‖ Doc. No. 12-1 at 8. Defendant is importing the requirements of a motion for
summary judgment into a motion to dismiss. ―As a general proposition, conclusory, self-serving
affidavits are insufficient to withstand a motion for summary judgment.‖ Gonzalez v. Sec’y of
Dep’t of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012) (citation omitted) (internal quotation
omitted); see also Jones v. United Parcel Service, 214 F.3d 402, 407 (3d Cir. 2000) (―At
summary judgment, a plaintiff cannot rely on unsupported allegations, but must go beyond
pleadings.‖). In a motion to dismiss, however, ―a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts alleged is improbable and that a recovery is

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very remote and unlikely.‖ Twombly, 550 U.S. at 556 (internal quotations omitted). Defendant
has pointed to no case law to support its claim that plaintiff must provide evidence of medical
diagnosis to survive a motion to dismiss. At this stage, plaintiff need only supply factual
allegations supporting a plausible claim to relief, and plaintiff in this case has met that burden.
2. Disability Under the PHRA
Plaintiff also asserts a claim for disability discrimination under the PHRA. Defendant
argues, as above, that a temporary, correctable impairment does not constitute a disability under
the PHRA. The parties agree that the PHRA is interpreted consistently with the ADA. Prior to
passage of the ADAAA in 2008, this was true—both state and federal courts interpreted the
ADA and PHRA consistently, applying the federal standard for liability to claims under the
PHRA, ―except where there is something specifically different in [the statutory] language
requiring that it be treated differently.‖ Fogleman v. Mercy Hosp., 283 F.3d 561, 567 (3d Cir.
2002); Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996). In 2008, however, Congress
amended the ADA to ―relax the standard of disability,‖ substantially altering the related statutory
provisions. Rubano, 991 F. Supp. 2d at 689 n.7; accord Deserne v. Madlyn & Leonard
Abramson Ctr. for Jewish Life, Inc., No. 10-cv-03694, 2012 U.S. Dist. LEXIS 68852, at *9 n.3
(E.D. Pa. May 17, 2012). The Pennsylvania legislature has not passed parallel legislation.
Rubano, 991 F. Supp. 2d at 689 n.7; accord Deserne, 2012 U.S. Dist. LEXIS 68852, at *9 n.3.
Consequently—and despite the parties‘ agreement otherwise—it is necessary to refer to
interpretations of the pre-amendment ADA in construing the definition of ―disability‖ under the
PHRA. Rubano, 991 F. Supp. 2d at 689 n.7. As noted above, the pre-amendment ADA
excluded impairments lasting or expected to last less than six months as constituting a
―disability.‖ Sulima, 602 F.3d at 185.

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Nonetheless, as detailed above, plaintiff in this case has pled sufficient facts to give rise
to a reasonable inference that his impairment lasted longer than six months. This is sufficient for
plaintiff‘s claims for disability discrimination under the PHRA to survive a motion to dismiss.
3. Treatment of Similarly Situated Individuals
Defendant further argues that plaintiff has failed to show that similarly situated
individuals were treated differently and consequently has failed to show that defendant‘s
proffered reasons for terminating him were pretextual.2 Defendant‘s argument fails for three
reasons.
First, a showing that the defendant treated similarly situated individuals differently has
been ―explicitly rejected‖ by the Third Circuit as a necessary element in a discrimination suit.
Sarullo v. United States Postal Serv., 352 F.3d 789, 797 n.7 (3d Cir. 2003). The Third Circuit
has ―made clear that this element can be present but by no means must be present.‖ Matczak v.
Frankford Candy & Chocolate Co., 136 F.3d 933, 940 (3d Cir. 1997). Instead, the Third Circuit
requires plaintiffs to more generally ―raise an inference of unlawful discrimination.‖ Sarullo,
352 F.3d at 797 n.7. Consequently, this Court rejects the argument that the First Amended
Complaint must be dismissed for failure to plead that defendant treated similarly situated
individuals differently.
Second, although treatment of similarly situated individuals may be relevant to show the
defendant‘s proffered reasons for terminating plaintiff were pretextual, the need to show pretext
is not applicable at this stage in the proceedings. Bartlett v. Kutztown Univ., No. 13-4331, 2015

2

Defendant also contends among his arguments regarding pretext that ―[b]y his own admission,
Plaintiff failed to meet Defendant‘s legitimate expectations for continued employment.‖
Defendant‘s argument is based off a misreading of the First Amended Complaint. Plaintiff
alleges he received satisfactory performance ratings and defendant ―unjustifiably‖ reprimanded
him. Am. Compl. ¶¶ 11, 16. The Court thus rejects defendant‘s argument on this point.
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U.S. Dist. LEXIS 21665, at *25 n.11 (E.D. Pa. Feb. 23, 2015). The need to show pretext arises
in the burden-shifting framework established by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). In that framework, a plaintiff in an employment
discrimination suit must ―prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext for discrimination.‖ Shaner
v. Synthes (USA), 204 F.3d 494, 500 (3d Cir. 2000) (quoting Jones v. Sch. Dist., 198 F.3d 403,
410 (3d Cir. 1999)). A plaintiff may show pretext by offering evidence that ―the employer
treated other, similarly situated persons not of his protected class more favorably.‖ Ansell v.
Green Acres Contracting Co., 347 F.3d 515, 521 (3d Cir. 2003); accord Fuentes v. Perskie, 32
F.3d 759, 765 (3d Cir. 1994).
The McDonnell Douglas framework, however, is not applicable in a motion to dismiss.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (―This Court has never indicated that the
requirements for establishing a prima facie case under McDonnell Douglas also apply to the
pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.‖) This is
because the McDonnell Douglas framework focuses on ―the quantum of proof [a] plaintiff must
present‖ to prove a claim of employment discrimination. Connelly v. Lane Constr. Corp., 809
F.3d 780, 789 (3d Cir. 2016) (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.
2009)). A motion to dismiss under Rule 12(b)(6), however, focuses not on what a plaintiff ―can
prove‖ but on what he has ―pleaded.‖ Fowler, 578 F.3d at 213. ―Even post-Twombly, it has
been noted that a plaintiff is not required to establish the elements of a prima facie case‖ to
survive a motion to dismiss. Fowler, 578 F.3d at 213. The McDonnell Douglas framework is
consequently not applicable to a motion to dismiss, and requiring the plaintiff to show pretext

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before the completion of fact discovery would ―put the cart before the horse.‖ Connelly, 809
F.3d at 789; accord Bartlett, 2015 U.S. Dist. LEXIS 21665, at *25 n.11.
A third reason compels the Court to reject defendant‘s argument on this issue: plaintiff
has adequately pled that defendant treated similarly situated individuals differently. Although
―favorable treatment outside the protected class is not an element of a prima facie case‖ of
discrimination, a plaintiff may argue that similarly situated individuals outside the protected
class were treated differently to ―raise[] an inference of discriminatory animus.‖ Sarullo v.
United States Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003). In the First Amended Complaint,
plaintiff pleads that his ―actions in repairing said meat cart were consistent with the common
practice for similar repairs . . . [and] similarly-situated non-disabled individuals were not
likewise reprimanded and/or terminated for conducting meat cart repairs in said manner.‖ Am.
Compl. ¶ 17. Plaintiff‘s allegation that he was following a common, unwritten practice for
repairing meat carts is sufficient to establish a plausible inference that he was treated differently
than similarly situated individuals.
B.

Retaliation
1. Causal Connection Between Request for Accommodation and
Termination under the ADA and PHRA

Defendant argues that plaintiff cannot maintain a cause of action for retaliation under the
ADA or PHRA because he cannot show (1) that he engaged in a protected activity or (2) that
there was a causal nexus between his termination and the protected activity. To establish a claim
of retaliation under the ADA or PHRA, a plaintiff must show ―(1) protected employee activity;
(2) adverse action by the employer either after or contemporaneous with the employee‘s
protected activity; and (3) a causal connection between the employee‘s protected activity and the

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employer‘s adverse action.‖ Shaner, 204 F.3d at 500; Rubano, 991 F. Supp. 2d at 704 (holding
that retaliation claims under the ADA and PHRA are analyzed under the same standard).
Defendant‘s arguments are misplaced. First, plaintiff has adequately pled he participated
in a protected activity. ―Requesting an accommodation on account of a disability amounts to a
protected activity,‖ without having to institute formal administrative or judicial proceedings.
Jackson v. J. Lewis Crozer Library, 445 F. App‘x 533, 536 (3d Cir. 2011) (citing Sulima v.
Tobyhanna Army Depot, 602 F.3d 177, 188 (3d Cir. 2010)). ―[I]t would seem anomalous . . . to
think Congress intended no retaliation protection for employees who request a reasonable
accommodation unless they also file a formal charge.‖ Shellenberger v. Summit Bancorp., 318
F.3d 183, 191 (3d Cir. 2003) (quoting Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st
Cir. 1997)). In this case, plaintiff has pled that he requested an accommodation for his
impairment and was placed on light duty work as a result. Am. Compl. ¶¶ 14, 16. These
allegations are sufficient to raise a reasonable inference that plaintiff requested an
accommodation and engaged in a protected activity.
Second, plaintiff has adequately pled a causal connection between the protected activity
and his termination. ―[I]n the ADA retaliation context . . . temporal proximity between the
protected activity and the termination [can be itself] sufficient to establish a causal link.‖
Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004). In particular,
plaintiff alleges that defendant fired him two days after he was injured and ―requested a
reasonable accommodation.‖ Am. Compl. ¶ 16. The temporal proximity of the request for
accommodation and plaintiff‘s termination is sufficient to give rise to an inference of a causal
connection between the two.

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The Third Circuit has affirmed the inference of a causal connection on similar facts. In
Jalil v. Avdel Corp., 873 F.2d 701, 709 (3d Cir. 1989), the Third Circuit reversed the grant of a
defendant‘s motion for summary judgment on a claim with identical temporal proximity. In that
case, plaintiff‘s employer fired him two days after it learned that he had filed a grievance with
the Equal Employment Opportunity Commission (―EEOC‖). Id. at 703. The employer in that
case argued that it fired plaintiff for ―gross insubordination‖ following a dispute over plaintiff‘s
use of a radio headset while working. Id. The Third Circuit held that the two days between the
employer‘s receipt of the EEOC complaint and plaintiff‘s termination ―justif[ied] an inference of
retaliatory motive.‖ Id. at 708 (citing Burrus v. United Tele. Co., 683 F.2d 339, 343 (10th Cir.)).
The Jalil court further stated that the timing of the discharge coupled with ―the absence of a
written rule against radio headsets and the presence of a dispute whether there was an unwritten
rule‖ sufficed to create an issue of material fact to survive a motion for summary judgment. Id.
at 709; see also Farrell v. Planters Lifesavers Co., 206 F.3d 271, 285–86 (3d Cir. 2000) (holding
that time of three or four weeks between plaintiff‘s rejection of sexual advances by another
member of management and her termination was ―suggestive‖ of a ―causal link‖).
Plaintiff in this case has alleged facts similar to those presented in Jalil. The passage of
only two days in this case gives rise to a reasonable inference that there was a causal connection
between the protected action and the termination. Further, plaintiff in this case has also alleged
that there was no written policy regarding cleaning of the meat carts and that he was following a
common practice among other employees. These allegations are sufficient to establish an
inference of a causal connection between plaintiff‘s request for accommodation and his
termination.

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2. Causal Connection Between Worker’s Compensation Claim and
Termination Under Pennsylvania Common Law
As with the retaliation claims under the ADA and PHRA, defendant argues plaintiff has
not sufficiently alleged a causal nexus between the filing of his worker‘s compensation claim and
his termination to sustain a claim for wrongful termination under Pennsylvania common law. In
Pennsylvania, ―[a]n employee may bring a cause of action for a termination of [his employment]
only in the most limited circumstances, where the termination implicates a clear mandate of
public policy.‖ Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 2009). In order for the goals of the
Pennsylvania Workers‘ Compensation Act ―to be realized and for public policy to be effectuated,
the employee must be able to exercise his right in an unfettered fashion without being subject to
reprisal. If employers are permitted to penalize employees for filing workmen‘s compensation
claims, a most important public policy will be undermined.‖ Shick v. Shirey, 716 A.2d 1231,
1237 (Pa. 1998) (quoting Frampton v. Central Indiana Gas Company, 297 N.E.2d 425, 427
(1973)). Although Pennsylvania courts hearing wrongful discharge claims have ―deliberately
eschewed a general test like that used in‖ federal retaliation claims in favor of an ―analy[sis] on a
case-by-case basis,‖ a plaintiff must still show causation between the filing of a worker‘s
compensation claim and his termination. Owens v. Lehigh Valley Hosp., 103 A.3d 859, 869 (Pa.
Commw. Ct. 2014). Plaintiff in this case has done so.
As discussed above, the timing between the protected activity—the filing of the worker‘s
compensation claim—and plaintiff‘s termination gives rise to a plausible inference of a causal
connection between the two. Williams, 380 F.3d at 760; Farrell, 206 F.3d at 280–81. Defendant
further argues, however, that plaintiff cannot sustain his claim of retaliation for filing a worker‘s
compensation claim because plaintiff admits in the First Amended Complaint that defendant‘s
company physician ―assisted‖ with plaintiff‘s worker‘s compensation claim. Defendant has
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pointed to no case law ruling that an employer‘s assistance in filing a worker‘s compensation
claim precludes a court from finding that the employer later retaliated against the employee for
filing that claim. Such a rule would allow employers to contravene policies protected by
Pennsylvania common law. Based on the allegations of the First Amended Complaint, it is
reasonable to infer that although defendant‘s company physician assisted plaintiff in filing his
worker‘s compensation claim, those responsible for plaintiff‘s termination nonetheless
terminated him for filing that claim. Plaintiff need only allege facts to establish such a
reasonable inference, and he has done so in this case.
V.

CONCLUSION

For the above reasons, defendant‘s Motion to Dismiss Plaintiff‘s First Amended
Complaint is denied. An appropriate order follows.

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