D'AMICO v. MOGEL, SPEIDEL , BOBB & KERSHNER et al

Filing 12

MEMORANDUM. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 10/11/16. 10/11/16 ENTERED AND COPIES E-MAILED.(er, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
___________________________________________
MARGARET D’AMICO,
Plaintiff,

:
:
:
v.
:
:
MOGEL, SPEIDEL, BOBB & KERSHNER,
:
FREDERICK R. MOGEL, STEPHEN H. PRICE, :
SEAN J. O’BRIEN, and MARK E. ZIMMER,
:
Defendants.
:
___________________________________________

No. 5:16-cv-2811

MEMORANDUM
Defendants’ Motion to Dismiss Amended Complaint, ECF No. 10 – Granted in Part
Joseph F. Leeson, Jr.
United States District Judge
I.

October 11, 2016

INTRODUCTION
On June 8, 2016, Plaintiff Margaret D’Amico initiated the above-captioned action against

her former employers. Defendants filed a Motion to Dismiss, but on August 25, 2016, Plaintiff
filed an Amended Complaint, ECF No. 8. Plaintiff alleges that she was harmed by disabilitybased discrimination and retaliatory practices in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §12101 et seq., and the Pennsylvania Human Relations Act, 43 Pa.C.S.A. §
951 et seq. Am. Compl., ECF No. 8.
Specifically, Plaintiff alleges that she worked as the Office Manager since 1989, but on
April 22, 2015, hours after she made a formal complaint of disability discrimination she was
terminated. Id. ¶ 7. The Amended Complaint avers, “[a]t all relevant times Plaintiff was a
qualified individual with a disability, able to perform all her essential job functions with or
without reasonable accommodation.” Id. ¶ 23. Plaintiff alleges that she was “suffering from an
ADA-covered disability which was first diagnosed in November 2013.” Id. ¶ 24. She alleges
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that her “condition significantly impaired [her] in one or more major life activities, including but
not limited to thinking, concentrating, seeing and working.” Id. ¶ 25. Plaintiff alleges that she
was “required to undergo surgery and follow-up medical treatment of the condition,” that she
“made known to Defendants her need for leave as an ADA accommodation as well as other
accommodations related to medical leave,” and that “between November 2013 and May of 2014,
[she] was required to take medical leave and have medical treatments.” Id. ¶¶ 26-27.
Plaintiff alleges that Defendants Price and Zimmer would question her need for medical
treatment and medical leave, and that, “[o]n one occasion, the extent, frequency and intensity of
the questioning by Zimmer was so severe” that her treatment was delayed “until her emotional
state could stabilize enough for her to tolerate the treatment.” Id. ¶¶ 30-31. She alleges that
“[a]s a direct result of the underlying condition, the treatment regime, the effects of the medical
regime, and the actions of Defendants Price and Zimmer, [she] also developed a mental health
condition which required medical treatment approximately one day per week during 2015.” Id. ¶
33. Plaintiff alleges that the mental health condition was made known to Defendants and “is
itself a disability under the ADA in that it significantly restricted her in the major life activities
of thinking and concentrating.” Id. ¶ 34. Plaintiff alleges that beginning in January 2015,
Defendants pressured her to go out on disability, “ostracized” her, took her duties away, and
downgraded her position to “staff.” Id. ¶¶ 41-46. The Amended Complaint states that on April
22, 2015, after being asked again by Defendant O’Brien about going out on disability, Plaintiff
sent a letter to Defendants putting them on notice of her claims and that less than four hours
later, she was terminated without any stated reason. Id. ¶¶ 48-55.
Count I of the Amended Complaint, against Defendant Mogel, Speidel, Bobb & Kershner
(“MSBK”), asserts a violation of the ADA for hostile work environment, failure to

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accommodate, and discrimination. Id. ¶¶ 70-75. Plaintiff alleges that she “was disabled,
regarded as and/or perceived as disabled by MSBK” and “was able to perform all of the essential
functions of her position with or without accommodation.” Id. at ¶ 72. In Count II, Plaintiff
alleges retaliation under the ADA against MSBK. Id. ¶¶ 76-78. Plaintiff asserts a claim under
the PHRA against MSBK in Count III. Id. ¶¶ 79-81. Finally, Plaintiff alleges in Count IV that
the individual Defendants are liable for aiding and abetting under the PHRA. Id. ¶¶ 82-85. The
Amended Complaint also includes a Statement of Facts Justifying the Imposition of Punitive
Damages Under the ADA. Id. ¶¶ 86-92.
Defendants have moved to dismiss the Amended Complaint with prejudice for failure to
state a claim. ECF No. 10. They argue, first, that Plaintiff’s failure to identify her alleged
disability warrants dismissal of the ADA claims. Defs.’ Supp. Mot. Dismiss 5-8, ECF No. 10-1.
Defendants assert that their alleged knowledge of the purported disability does not permit
Plaintiff to evade the requisite pleading standards. Id. at 7. Next, Defendants argue that Plaintiff
has failed to plead facts supporting a nexus between her protected status and the alleged adverse
actions taken against her, which is required to state a claim for discrimination, retaliation, and
hostile work environment. Id. at 8-11.
In response, Plaintiff submits that there is no requirement to identify her disability by
name; rather, she must plead only that her impairment significantly limited one or more major
life activities. Pl.’s Resp. Mot. Dismiss, ECF No. 4-10, ECF No. 11. She argues that the
Amended Complaint satisfies this requirement, and notes that the ADA amendments in 2008
made it clear that the definition of a disability is to be construed broadly. Id. Second, Plaintiff
asserts that she has adequately alleged a causal nexus between her disability and the adverse
action. Id. at 10-15. She points to the alleged continuing pattern of harassment directly flowing

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from her medical condition, and to the temporal proximity of her termination as unduly
suggestive of retaliation. Id.
For the reasons set forth herein, the Motion is granted in part and denied in part.
II.

STANDARD OF REVIEW – MOTION TO DISMISS
In rendering a decision on a motion to dismiss, the Court must “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted).
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court recognized that “a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In Ashcroft v. Iqbal,
556 U.S. 662 (2009), the Court subsequently laid out a two-part approach to reviewing a motion
to dismiss under Rule 12(b)(6). First, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Id. at 678. Thus,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to survive the motion; “instead, ‘a complaint must allege facts
suggestive of [the proscribed] conduct.’” Id.; Phillips, 515 F.3d at 233 (quoting Twombly, 550
U.S. at 563 n.8). Second, the court must determine whether the complaint “states a plausible
claim for relief, . . . [which is] a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. at 678. Only if “the ‘[f]actual allegations . . .
raise a right to relief above the speculative level’” has the plaintiff stated a plausible claim.

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Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 555). The defendant bears the burden of
demonstrating that a plaintiff has failed to state a claim upon which relief can be granted.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).
III.

ANALYSIS

A.
Although Plaintiff is not required to identify her impairment, the Amended
Complaint is insufficient because it does not include sufficient facts from which the Court
can determine whether the impairment qualifies as a “disability” under the ADA.
The ADA defines “disability” as either (1) “a physical or mental impairment that
substantially limits one or more major life activities of such individual;” (2) “a record of such an
impairment;” or (3) “being regarded as having such an impairment.” 42 U.S.C. § 12102(1). The
PHRA contains a substantially similar definition of “handicap or disability.” See 43 P.S. §
954(p.1); Salley v. Circuit City Stores, 160 F.3d 977, 979 (3d Cir. 1998). “[M]ajor life activities
include, but are 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).
Plaintiff alleges that her “condition significantly impaired [her] in one or more major life
activities, including but not limited to thinking, concentrating, seeing and working.” She also
alleges that she was “regarded as and/or perceived as disabled by MSBK.” Plaintiff does not,
however, claim that she has a “record of” impairment. 1
“The determination of whether an individual is substantially limited in a major life
activity must be made ‘on a case-by-case basis.’” Matthews v. Pa. Dep’t of Corr., 613 F. App’x
163, 167 (3d Cir. 2015) (quoting Albertson’s Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999)).
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Eshelman v. Agere Sys., 554 F.3d 426, 436-37 (3d Cir. 2009) (explaining that Congress
included a “record of” claim to protect individuals who once suffered from a disability, but
recovered, from being discriminated against based on their prior condition).
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“What matters is not the name or diagnosis of the impairment but ‘the effect of the impairment
on the life of the individual.’” Id.
Accordingly, while Plaintiff is not required to include the precise name or diagnosis of
her impairment to meet the first definition of a “disability,” she must allege sufficient facts from
which the Court can determine whether her impairment qualifies as a “disability” under the ADA
and PHRA. Compare McCann v. Catholic Health Initiative, No. 98-CV-1919, 1998 U.S. Dist.
LEXIS 14011, at *4-5 (E.D. Pa. Sept. 8, 1998) (dismissing the complaint without prejudice
because the plaintiff failed to provide the court with even “some inkling as to his predicament”
and made only a few “conclusory and nebulous generalizations”), with Balliet v. Scott’s Auto
Serv., No. 11-cv-05394, 2013 U.S. Dist. LEXIS 45321, at *14-15 (E.D. Pa. Mar. 29, 2013)
(finding that although the plaintiff did not name her impairment, the complaint alleged sufficient
facts - that her diagnosed medical conditions affected her musculoskeletal system, nervous
system, and internal organs, and also restricted her ability to cook for herself, to use her right
arm, to move about, to dress, to concentrate, to sit, to stand, to do household chores, yard work,
and the work of a bookkeeper - from which it could be determined that she was disabled for
purposes of the ADA). Plaintiff has failed to satisfy this requirement. The Amended Complaint
is so devoid of facts that this Court is unable to determine whether Plaintiff originally suffered
from a mental or physical impairment. Her failure to identify the impairment, see Albertson’s,
Inc., 527 U.S. at 566 (finding that “some impairments may invariably cause a substantial
limitation of a major life activity”), coupled with the lack of factual allegations describing how
the impairment affected her activities of daily living, see Popko v. Penn State Milton S. Hershey
Med. Ctr., No. 1:13-cv-01845, 2015 U.S. Dist. LEXIS 109939, at *10 (M.D. Pa. Aug. 19, 2015)
(“Crucially, Plaintiff also fails to adequately allege facts in support of his assertion that he is

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accordingly substantially limited in performing the major life activities of ‘eating and sleeping . .
. interacting with others, thinking, concentrating, and judgment’”), subject the Amended
Complaint to dismissal. See Riley v. St. Mary Med. Ctr., 2014 U.S. Dist. LEXIS 57065, at *21
(E.D. Pa. Apr. 23, 2014) (dismissing the ADA and PHRA claims because the plaintiff “provided
no facts illuminating to what extent or how her activities are ‘limited’”).
The Amended Complaint also fails to allege sufficient facts to satisfy the second
definition of disability. “An individual meets the requirement of ‘being regarded as having such
an impairment’ if the individual establishes that he or she has been subjected to an action
prohibited under this Act because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §
12102(3)(A). To prevail, the “plaintiff would have to show that his employer misinterpreted
information about his limitations to conclude that he was unable to perform a ‘wide range or
class of jobs.’” Keyes v. Catholic Charities of the Archdiocese of Phila., 415 F. App’x 405, 410
(3d Cir. 2011); Amoroso v. Bucks County Court of Common Pleas, No. 13-0689, 2014 U.S. Dist.
LEXIS 41469, at *24-25 (E.D. Pa. Mar. 28, 2014) (“Simply alleging that an employer knew
about a disability is not sufficient to demonstrate that the employer regarded the employee as
disabled.”). The “plaintiff must show that the employer believed that a major life activity was
substantially limited by the plaintiff’s impairment.” Popko v. Penn State Milton S. Hershey Med.
Ctr., No. 1:13-cv-01845, 2014 U.S. Dist. LEXIS 95486, at *16 (M.D. Pa. July 14, 2014).
The Amended Complaint contains no information as to what Plaintiff’s limitations are or
how her impairment affected her major life activities, nor does it include factual allegations
regarding what information Defendants misinterpreted to conclude that she was unable to
perform her job. Therefore, she has failed to state a “regarded as” claim. See Szarawara v.

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County of Montgomery, No. 12-5714, 2013 U.S. Dist. LEXIS 90386, at *21-22 (E.D. Pa. June
27, 2013) (concluding that nothing in the complaint “even hint[ed] at the nature of the limitation
from which Defendant allegedly believed him to suffer,” and dismissing the “patently
insufficient pleading”).
Defendants’ Motion to Dismiss, based on Plaintiff’s alleged failure to identify her
disability, is granted; however, the dismissal is without prejudice. See Alston v. Parker, 363 F.3d
229, 235 (3d Cir. 2004) (holding that “even when a plaintiff does not seek leave to amend, if a
complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a curative
amendment, unless an amendment would be inequitable or futile”). Although Plaintiff
previously filed an Amended Complaint, this Court does not believe that allowing another
amendment would be futile or inequitable. Plaintiff is advised, however, that if she fails to cure
the deficiencies outlined herein, further leave to amend will not be granted.
B.
The unusually suggestive temporal proximity between Plaintiff’s notification
to Defendants of her claims and their decision to terminate her employment establishes a
causal nexus for the discrimination, retaliation, and hostile work environment claims.
To state a claim under the ADA for hostile work environment, discrimination, and
retaliation, a plaintiff must show a causal connection between the protected activity or disability
and the adverse action. See, e.g., Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007);
Jensen v. Potter, 435 F.3d 444, 449-50 (3d Cir. 2006); Swinkowski v. McClane Co., No. 3:15CV-00624, 2016 U.S. Dist. LEXIS 124172, at *24-29 (M.D. Pa. Sept. 12, 2016). A causal link
may be shown by evidence of a pattern of antagonizing behavior. See Robinson v. Southeastern
Pa. Transp. Auth., 982 F.2d 892, 895-96 (3d Cir. 1993) (determining that a pattern of antagonism
existed because the employer subjected the plaintiff to a “constant barrage of written and verbal
warnings . . ., inaccurate point totalings, and disciplinary action, all of which occurred soon after
plaintiff’s initial complaints and continued until his discharge”). An unusually suggestive
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temporal proximity may also establish causation. See Clark County Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001). “The cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case uniformly hold that the temporal proximity must be
‘very close.’” Id.; see also Donald v. SEPTA, No. 13-0440, 2014 U.S. Dist. LEXIS 103670, at
*22-24 (E.D. Pa. July 29, 2014) (finding that the plaintiff had established that the adverse
employment action was causally related to the invocation of rights where he was terminated one
day after returning from FMLA leave).
Plaintiff alleges that between January and April 2015, Defendants began pressuring her to
go out on disability, “ostracized” her, took her duties away, and downgraded her position.
Additionally, she alleges that on April 22, 2015, less than four hours after being advised of her
ADA claim, Defendants decided to terminate her employment. These allegations of a pattern of
antagonizing behavior and, most importantly, of close temporal proximity are sufficient to show
a causal connection. Defendants’ Motion to Dismiss based on this argument is therefore denied.
IV.

CONCLUSION
Despite Defendants’ arguments to the contrary, Plaintiff is not required to identify her

impairment. Nevertheless, she must allege sufficient facts from which the Court can determine
whether she meets the definition of disabled under the ADA and PHRA. The Amended
Complaint fails to satisfy this requirement because it contains virtually no facts regarding the
nature of the impairment, how and to what extent Plaintiff’s activities of daily living were
affected, or what limitation Defendants’ allegedly regarded her as having. However, based on
the allegations of temporal proximity, the Amended Complaint does sufficiently allege a causal
nexus to support Plaintiff’s claims for discrimination, retaliation, and hostile work environment.

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The Motion to Dismiss is therefore granted in part and denied in part. Plaintiff will be given one
final opportunity to amend her complaint to cure the deficiencies outlined herein.
A separate Order will be issued.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.__________
JOSEPH F. LEESON, JR.
United States District Judge

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