Koch v. Early Impressions Learning Center, LLC

Filing 20

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Christopher C. Conner on 10/23/2024. (mw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KAYLA KOCH,
Plaintiff
v.
EARLY IMPRESSIONS
LEARNING CENTER, LLC,
Defendant

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CIVIL ACTION NO. 1:24-CV-549
(Judge Conner)

MEMORANDUM
Plaintiff Kayla Koch advances disability discrimination claims under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the
Pennsylvania Human Relations Act (“PHRA”), 43 PA. CONS. STAT. ANN. § 951, et
seq., against a prospective employer, defendant Early Impressions Learning Center,
LLC. Early Impressions moves to dismiss Koch’s complaint for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We will deny the
motion.
I.

Factual Background & Procedural History
Koch is a resident of Mechanicsburg, Pennsylvania who suffers from post-

traumatic stress disorder (“PTSD”). (See Doc. 1 ¶¶ 2, 15). She attends weekly
trauma therapy sessions for her medical condition, which makes focusing difficult.
(See id. ¶¶ 15-16). On November 23, 2022, Koch applied for the position of toddler
teacher at Early Impressions. (See id. ¶ 17). The position schedule was Monday
through Friday, 7:30 a.m. to 4:30 p.m., with a one-hour lunch break. (See id. ¶¶ 2426). Koch avers that her friend, Veronica, an Early Impressions associate, told her

the position included one day off per week. (See id. ¶ 18). The owner of Early
Impressions, Tiffany Ballew, offered Koch the job on December 6, 2022, with a
tentative start date of January 3, 2023. (See id. ¶¶ 23, 26). Koch allegedly accepted
the position the same day via Indeed.com message. (See id. ¶ 27).
Koch told Ballew at the time she accepted the offer that Veronica had
mentioned a guaranteed day off; she then asked whether she could have off every
Tuesday to attend trauma therapy appointments. (See id. ¶¶ 28-29). Ballew
responded the next day that she could not offer a four-day schedule and instead
offered Koch a three-day-a-week position as a so-called “floater.” (See id. ¶¶ 32-34).
Koch told Ballew that she could not accept a floater position; she counteroffered to
work Monday through Friday so long as she could take off from 7:30 a.m. until noon
one day per week to attend therapy. (See id. ¶¶ 36-37). Ballew stated she could not
accommodate full-time schedules, and instructed Koch to message her if
circumstances changed and she would like to be put back on the list of potential
candidates. (See id. ¶¶ 38-39). Koch then made two subsequent requests for time
off from 9:30 a.m. until 11:45 a.m. or from 9:50 a.m. until 11:15 a.m. each Tuesday.
(See id. ¶¶ 42-43, 45-47). On December 13, Ballew explained that she could not offer
the requested accommodations and that she considered Koch’s application void.

2

(See Doc. 5 ¶¶ 48-49; see also Doc. 7-3 at 6). 1 Koch responded that she had moved
her trauma therapy appointments to coincide with her lunchbreak; she also told
Ballew it was illegal to rescind her job offer after she accepted simply because she
requested an accommodation. (See Doc. 1 ¶¶ 50-51). On December 14, Ballew
directed Koch to Early Impressions’ attorney and stated that she would report any
further communications to the police as harassment. (See id. ¶¶ 52-53).
Koch dually filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations
Commission (“PHRC”) on June 9, 2023. (See id. ¶ 5). The EEOC provided Koch
notice of her right to sue via correspondence dated January 2, 2024. (See id. ¶ 6).
This lawsuit followed. Koch alleges discrimination and retaliation under both the
ADA (Count I) and the PHRA (Count II). (See id. ¶¶ 55-74). Early Impressions now
moves to dismiss Koch’s complaint for failure to state a claim pursuant to
Rule 12(b)(6). The motion is fully briefed and ripe for resolution.
II.

Legal Standards
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.

1

Early Impressions attached the parties’ Indeed.com message exchange to its
opening brief as an exhibit. (See Doc. 7-3). We cite to that exhibit only to clarify the
timing of this allegation in Koch’s complaint, which states that this message took
place “[o]n or about” December 14. (See Doc. 1 ¶ 48). We may consider these
exchanges because the complaint fundamentally relies on them and because Koch
does not challenge their authenticity. See Mayer v. Belichick, 605 F.3d 223, 230 (3d
Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993)).
3

See FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under
Rule 12(b)(6), 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.”
Phillips v. County 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)). In addition to
reviewing the facts contained in the complaint, the court may also consider
“exhibits attached to the complaint, matters of public record, [and] undisputedly
authentic documents if the complainant’s claims are based upon these documents.”
Mayer, 605 F.3d at 230 (citing Pension Benefit Guar. Corp., 998 F.2d at 1196).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts
a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31
(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a
plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a
claim must be separated; well-pleaded facts are accepted as true, while mere legal
conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside,
578 F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual
allegations, it must determine whether they are sufficient to show a “plausible claim
for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly,
4

550 U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that
allow[] the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.
Federal Rule of Civil Procedure 8(c) classifies a statute of limitations claim as
an affirmative defense that must be pled in an answer to the complaint. See FED. R.
CIV. P. 8(c). Nevertheless, the court may dismiss a complaint as time-barred under
Rule 12(b)(6) if “the time alleged in the statement of a claim shows that the cause of
action has not been brought within the statute of limitations.” Robinson
v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002); see Oshiver v. Levin, Fishbein, Sedran
& Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994). This deficiency must be apparent
on the face of the pleading. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)
(citation omitted). Our court of appeals has explained that the meaning of “the face
of the complaint,” as it relates to asserting affirmative defenses in a motion to
dismiss, is coextensive with the general Rule 12(b)(6) limitations. Id.; see also
Hoffman v. Nordic Nats., Inc., 837 F.3d 272, 280 & n.52 (3d Cir. 2016) (citations
omitted) (discussing raising affirmative defense of preclusion in a Rule 12(b)(6)
motion). Thus, materials properly considered include not only the complaint but
also matters of public record, exhibits attached to the complaint, and undisputed
materials embraced by the complaint but provided by the defendant. See Schmidt,
770 F.3d at 249; Hoffman, 837 F.3d at 280 & n.52.
III.

Discussion
Early Impressions advances two arguments in support of its motion. First, it

avers that it is not an “employer” under the ADA because it does not employ
5

enough people to come under the Act’s auspices. (See Doc. 7 at 5-12). Second, it
contends Koch has not timely exhausted her administrative remedies as to her
PHRA claims. (See id. at 14-20). 2 We address each argument seriatim.
A.

ADA Numerosity

The ADA prohibits employers from “discriminat[ing] . . . 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). The Act defines
“employer” in relevant part as “a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each of 20 or
more calendar weeks in the current or preceding calendar year.” See id.
§ 12111(5)(A). 3 This numerosity requirement is not jurisdictional; it is a substantive
element of a plaintiff’s prima facie case. Spalla v. Elec. Mfg. Servs. Grp., Inc.,
No. 1:16-CV-821, 2017 WL 569178, at *4 & n.3 (M.D. Pa. Feb. 13, 2017) (Conner, C.J.)
(citing Arbaugh v. Y&H Corp., 546 U.S. 500, 514-15 (2006); Nesbit v. Gears
Unlimited, Inc., 347 F.3d 72, 77, 83 (3d Cir. 2003); Showers v. Endoscopy Ctr. of
Cent. Pa., LLC, 58 F. Supp. 3d 446, 454 (M.D. Pa. 2014) (Conner, C.J.)). The

2

Early Impressions also requests that, if we deny its motion, we cabin
discovery to the limited issue of numerosity under the ADA. (See Doc. 11 at n.1). It
argues this proposed approach increases judicial efficiency because Koch’s ADA
claim is the only one within our original jurisdiction. (See id.) Koch did not
respond to this argument. (See generally Doc. 15).
3

The PHRA defines an “employer” in relevant part as a person who employs
four or more employees within Pennsylvania. 43 PA. CONST. STAT. ANN. § 954(b).
Early Impressions does not contest its status as an employer for PHRA purposes.
(See generally Doc. 7).
6

“current” year is the calendar year in which the alleged discriminatory acts
occurred; the “preceding” year is the calendar year immediately before the current
year. EEOC v. Hesco Parts Corp., 57 F. App’x 518, 522 (3d Cir. 2003) (citations
omitted) (nonprecedential).
Early Impressions cites to its payroll records for 2021 and 2022 and a
declaration from its owner, Ballew, to argue the complaint fails to state a plausible
claim. (See Docs. 7-1, 7-2; see also Doc. 7 at 6-12). It then urges us in the alternative
to convert its motion to one for summary judgment on numerosity grounds. (See
Doc. 7 at 12-14). It would be premature to dismiss Koch’s complaint based upon the
documents Early Impressions attached to its motion. As courts within our circuit
have recognized, a plaintiff need only allege that a defendant had 15 employees
working each day of at least 20 weeks in the current or preceding year to survive a
motion to dismiss. See, e.g., Gonzalez v. Busy Place Early Learning Ctr., No. 146379, 2015 WL 5679887, at *3 (D.N.J. Sept. 25, 2015) (collecting cases). And Koch’s
complaint states Early Impressions “had fifteen (15) or more employees for each
working day in each of twenty (20) or more calendar weeks in the [relevant years].”
(See Doc. 1 ¶ 56). This allegation, although tied to the statutory language, is factual,
not legal. Gonzalez, 2015 WL 5679887, at *3. It is sufficient to “raise a reasonable
expectation that discovery will reveal evidence of each necessary element.” See

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Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021) (quoting Fowler,
578 F.3d at 213). 4
We also decline to convert Early Impressions’ motion to one for summary
judgment. Rule 12(d) directs courts to convert a Rule 12(b)(6) motion to one under
Rule 56 if it considers matters outside the pleadings. See FED. R. CIV. P. 12(d). But
the court must provide the parties a “‘reasonable opportunity’ to present all
material relevant to a summary judgment motion” and unambiguous notice of the
court’s intention to convert the motion before doing so. In re Rockefeller Ctr.
Props., Inc. Sec. Litig., 184 F.3d 280, 287-88 (3d Cir. 1999). Our court of appeals has
held that a motion framed in the alternative is sufficient notice, Hilfirty v. Shipman,
91 F.3d 573, 578-79 (3d Cir. 1996), overruled on other grounds in Merkle v. Upper
Dublin Sch. Dist., 211 F.3d 782, 791 (3d Cir. 2000), but courts regularly decline to
convert “when little or no discovery has occurred,” see Kurdyla v. Pinkerton Sec.,
197 F.R.D. 128, 131 (D.N.J. 2000) (citing Brennan v. Nat’l Tel. Directory Corp., 850 F.
Supp. 331, 335-36 (E.D. Pa. 1994) (collecting cases)). No discovery has occurred in
this case, (see Doc. 9 at 17), so conversion is unwarranted.

4

The cases Early Impressions cites for the proposition that we may dismiss
based on lack of numerosity, (see Doc. 7 at 8-9), are distinguishable. In each of
those cases, the plaintiff offered evidence to show the numerosity requirement was
not met. That is not the situation here, where Koch has not introduced any
uncertainty regarding the numerosity-related allegations in the complaint.
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B.

PHRA Exhaustion

Next, Early Impressions argues Koch failed to timely exhaust her
administrative remedies under the PHRA. 5 (See Doc. 7 at 14-20). A plaintiff must
first timely exhaust her administrative remedies before seeking judicial
intervention on a PHRA claim. Mandel v. M&Q Packaging Corp., 706 F.3d 157, 16465 (3d Cir. 2013); see also PA. CONS. STAT. ANN. § 959(h). A claimant does so by filing
a charge of discrimination with the PHRC within 180 days of the alleged
discriminatory act. Mandel, 706 F.3d at 164-65; see also PA. CONS. STAT. ANN.
§ 959(h). Here, the timeliness determination is driven by two considerations: when
Koch filed with the PHRC, and whether actionable conduct plausibly occurred in
the 180 days before the filing.
As to the first question, Early Impressions posits Koch did not file the charge
until June 20, 2023, when the EEOC transmitted a dual filing notification to the
PHRC. (See Doc. 11 at 4-6; see also Doc. 11-1 at 33). 6 When a charge has been filed
with the PHRC is a matter of state law. Woodson v. Scott Paper Co., 109 F.3d 913,
925 (3d Cir. 1997). Under Pennsylvania law, a “dual filing”—that is, a charge of
discrimination filed with the EEOC that has been forwarded to the PHRC pursuant
to their worksharing agreement—satisfies the exhaustion requirement. Lantz

5

It is undisputed that Koch timely exhausted the administrative remedies on
her ADA claims.
6

When deciding a motion pursuant to Rule 12(b)(6), the court may consider
undisputed materials embraced by the complaint but provided by the defendant.
See Schmidt, 770 F.3d at 249; Hoffman, 837 F.3d at 280 & n.52. The EEOC charge is
integral to Koch’s complaint in this matter, and she has not disputed the
authenticity of the copy provided by Early Impressions. (See generally Doc. 15).
9

v. Hosp. of the Univ. of Pa., No. 96-2671, 1996 WL 442795, at *3 (E.D. Pa. July 30,
1996) (citations omitted). A plaintiff, however, cannot rely on the existence of the
worksharing agreement alone. Woodson, 109 F.3d at 927. Rather, a claimant must
evince “an intent to file a PHRC charge” in documents filed with the EEOC. Seeger
v. C&S Wholesale Grocers, Inc., No. 1:13-CV-48, 2013 WL 3208590, at *4 (M.D. Pa.
June 24, 2013) (Conner, J.).
Our court of appeals has determined that completing an EEOC information
questionnaire is insufficient when the questionnaire contained no language
indicating an intent to dual file. Mandel, 706 F.3d at 165. And while the Third
Circuit and Pennsylvania courts are formally silent on the issue, lower courts within
our circuit have held that an EEOC charge of discrimination that instructs the
EEOC to dual file is filed with the PHRC on the same date it was filed with the
EEOC. See Zielinski v. Whitehall Manor, Inc., 899 F. Supp. 2d 344, 352-53 (E.D. Pa.
2012) (collecting cases); see also Pifer v. Myzak Hydraulics, Inc., Nos. 2:13-CV-452,
2:13-CV-559, 2015 WL 300489, at *3 (W.D. Pa. Jan. 22, 2015) (citation omitted);
Seeger, 2013 WL 3208590, at *3-4. This standard relaxes the general rule that a
charge is deemed filed with the PHRC on the date the agency receives it. See
Vincent v. Fuller Co., 616 A.2d 969, 971 (Pa. 1992). To hold otherwise would render
the dual filing system meaningless by assigning plaintiffs the risk of administrative
delay in the transmission of a charge from one agency to another. Zielinski, 899 F.
Supp. 2d at 353 (citing Seybert v. Int’l Grp., Inc., No. 07-3333, 2009 WL 722291,
at *17 (E.D. Pa. Mar. 17, 2009)).

10

Koch has plainly demonstrated an intent to dual file. The charge of
discrimination Koch filed with the EEOC on June 9, 2023, unambiguously states, “I
want this charge filed with both the EEOC and the State or local Agency, if any.”
(See Doc. 11-1 at 19). In addition, the form identifies the PHRC as the relevant
agency. (See id.) We find that Koch filed the charge of discrimination with the
PHRC on June 9, 2023. Accordingly, her claims are only timely exhausted to the
extent they arise out of actionable conduct on or after December 11, 2022—the
180th day preceding her filing.
The limitations period on actionable conduct begins to run when an
employer denies an employees’ request for reasonable accommodation. Mercer
v. SEPTA, 608 F. App’x 60, 63 (3d Cir. 2015) (nonprecedential); see also Leonard
v. SEPTA, No. 20-2033, 2021 WL 229397, at *5 (E.D. Pa. Jan. 22, 2021). The
continuing violation doctrine does not apply; rather, each denial of a reasonable
accommodation request constitutes a discrete, legally cognizable discriminatory act.
Mercer, 608 F. App’x at 63-64 (citing Aubrey v. City of Bethlehem, Fire Dep’t, 466 F.
App’x 88, 93 (3d Cir. 2012) (nonprecedential)). While denials of reasonable
accommodation requests are actionable, refusals to reconsider prior denials or
inaction in response to an employee’s “general complaints” are not. See id.
It is difficult to parse a new request for reasonable accommodation from a
plea to revisit a previous denial because a “request for reasonable accommodation
requires a great deal of communication between the employee and employer.”
Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1285 (7th Cir. 1996).
Determining reasonable accommodations is an “‘interactive process.’” Taylor
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v. Phoenixville Sch. Dist., 184 F.3d 296, 311 (3d Cir. 1999) (quoting 29 C.F.R.
§ 1630.2(o)(3)), abrogated by statute on other grounds as recognized in Rocco
v. Gordon Food Serv., 998 F. Supp. 2d 422, 426 n.1 (W.D. Pa. 2014). And our court of
appeals has stated that “both parties have a duty to assist in the search for
appropriate reasonable accommodation and to act in good faith.” See id. at 312
(internal quotation marks omitted) (quoting Mengine v. Runyon, 114 F.3d 415, 420
(3d Cir. 1997)). We must accordingly “look for signs of failure to participate in good
faith or failure by one of the parties to help the other party determine what specific
accommodations are necessary” to distinguish denials from continued negotiation.
See Bultemeyer, 100 F.3d at 1285 (quoting Beck v. Univ. of Wis. Bd. of Regents,
75 F.3d 1130, 1135 (7th Cir. 1996)). In this frame, subsequent employee proposals
submitted while the employer is acting in good faith are not new requests because
they are part of the “interactive process” contemplated by EEOC regulations. See
29 C.F.R. § 1630.2(o)(3). A request for reasonable accommodation remains live until
an employer manifests unequivocal intent to reject any proposed accommodation or
stops negotiating in good faith. An employee may then make a new request by
communicating a less restrictive alternative not previously discussed.
Koch’s complaint contains plausible allegations of actionable conduct on or
after December 11, 2022, within 180 days of her filing date. Recall that Ballew
offered Koch the floater position on December 7, which Koch rejected before
proposing an alternative accommodation. (See Doc. 1 ¶¶ 32-37). Viewed in the light
most favorable to Koch, she did not terminate good faith negotiations by rejecting
the floater position because she proposed a less-restrictive alternative
12

accommodation. (See id.) Then, on December 8, Ballew stated she could not
accommodate full-time schedules and that she would return Koch to the pool of
potential candidates if Koch’s circumstances or demands changed. (See id. ¶¶ 3839). This message implies Early Impressions would continue to consider alternative
accommodations in good faith. In fact, Koch responded with a less restrictive
proposed accommodation the same day. (See id. ¶¶ 40-47). On December 13,
Ballew responded that Early Impressions “consider[ed Koch’s] application void”
without addressing her proposed alternatives. (See Doc. 7-3 at 6). Koch then
offered to attend her therapy appointments during her lunch break. (See id.; see
also Doc. 1 ¶ 51). At this procedural juncture, it is plausible—if not likely—that Ms.
Ballew’s December 13th message was the first time Early Impressions manifested a
clear intent to stop negotiating in good faith, which started the PHRA exhaustion
clock. 7 We will deny Early Impressions’ motion to dismiss Koch’s PHRA claims on
timeliness grounds.
7

The cases Early Impressions cites to the contrary are unconvincing. We
begin with Gloeckl v. Giant Eagle, Inc., 176 F. App’x 324 (3d Cir. 2006), a
nonprecedential opinion in which the Third Circuit affirmed entry of summary
judgment on an ADA claim in favor of an employer. There, the panel determined
the unlawful employment action occurred when the defendant refused a request to
allow the plaintiff to return to work on a part-time basis. Gloeckl, 176 F. App’x at
326. The panel determined Gloeckl’s claim that Golden Eagle refused to consider
her for a part-time position after it had already denied the same relief did not
restart the statute of limitations for exhaustion purposes. See id. Unlike the
plaintiff in Gloeckl, who requested the same relief denied previously, Koch’s
messages each contained a less restrictive alternative accommodation. (See Doc. 1
¶¶ 29-51). Koch was still negotiating without an unequivocal indication from Early
Impressions that it would reject any proposed accommodation.
In addition, the company’s proffered Supreme Court decisions—Delaware
State College v. Ricks, 449 U.S. 250 (1980), and International Union of Electric,
Radio & Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers, Inc., 429 U.S.
13

IV.

Conclusion
We will deny Early Impressions’ motion (Doc. 5) to dismiss Koch’s complaint.

Early Impressions may request to limit discovery to the issue of numerosity under
the ADA, see supra n.2, by formal motion. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated:

October 23, 2024

229 (1976)—are distinguishable. Both cases evaluated claims under Title VII, a
statute that, unlike the ADA, does not require defendants to participate in an
“interactive process” to assess accommodation requests. In any event, the issues in
Robbins & Myers were (1) whether the pendency of a collective-bargainingcontract’s grievance mechanism tolled the statute of limitations, and (2) the
applicability of the 1972 amendments to Title VII. 429 U.S. at 233-34. Neither is
implicated here. In Ricks, the Court addressed a claim that Delaware State College
wrongfully denied Ricks tenure on account of his national origin. 449 U.S. at 254.
The EEOC argued the statute of limitations did not begin to run until the
university’s grievance process had concluded. See id. at 260-61. The Supreme
Court disagreed and explained that “entertaining a grievance complaining of the
tenure decision does not suggest that the earlier decision was in any respect
tentative.” See id. at 261. However, the grievance process in Ricks was not
required by Title VII, whereas the ADA imposes an obligation on employers to
negotiate in good faith. Moreover, Koch has alleged facts to plausibly show Early
Impressions would revisit its decision if she provided alternative availability or if
her circumstances changed. (See Doc. 1 ¶¶ 39-51). That is unlike the denial letter in
Ricks, which referred to a grievance process in which the university would
reevaluate its initial decision only through consideration of the state of affairs at the
time of the initial tenure decision. Finally, we note that the ad hoc message-board
communications at issue here involve several factual and interpretive disputes,
whereas the university grievance process at issue in Ricks was more susceptible to
characterization as a matter of law. Without the benefit of factual discovery, we
cannot determine with legal certainty the moment Early Impressions decided to
reject any claim for accommodation. At present, however, we find Koch has
adequately pleaded timely administrative exhaustion under the PHRA.