Shaffer v. Greater Hazleton Health Alliance
Filing
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MEMORANDUM AND OPINION - For the foregoing reasons, the Court will deny Defendants' motion to dismiss. (Doc. 6). Aseparate Order follows.Signed by Honorable Robert D. Mariani on 6/5/13. (jfg)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KENNETH ROBERT SHAFFER,
Plaintiff
v.
3:12·CV·02450
(JUDGE MARIANI)
GREATER HAZLETON HEALTH
ALLIANCE, trading as, HAZLETON
GENERAL HOSPITAL
Defendant
MEMORANDUM OPINION
I. Introduction
Plaintiff Kenneth Robert Shaffer filed a four-count Complaint against Defendant
Greater Hazleton Health Alliance, trading as Hazleton General Hospital, for violations of the
Americans with Disabilities Act ("ADA")' 42 U.S.C. § 12101, et seq., the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and the Pennsylvania Human
Relations Act ("PHRA"), 43 PA. CONS. STAT. § 951, et seq. (Doc. 1). Before the Court is
Defendant's Motion to Dismiss (Doc. 6) for failure to state a claim upon which relief may be
granted. For the reasons set forth below, the Court will deny Defendant's motion.
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This Court has jurisdiction over this action pursuant to, inter alia, 28 U.S.C. §§ 1331
and 1367. Venue is proper in the Middle District of Pennsylvania under 28 U.S.C. §
1391(b).
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II. Factual Allegations
Plaintiff, who is eighty-one years old, began working for Defendant as a Security
Officer. 1 (Compl., Doc. 1, at mT 7, 10). On March 19, 2009, Plaintiff sustained an aortic
aneurysm which necessitated open heart surgery. (Id. at 1f 14). Before returning to work,
one of Defendant's doctors, Dr. John Amenter, physically examined Plaintiff and "requested"
him to attain a release from his family physician and cardiologist. (Id. at 1f 15). Plaintiffs
"family physician and cardiologist" cleared him to work without any restrictions. (/d. at 1f 16).
On June 15, 2009, Plaintiff returned to his position as Security Officer. (/d. at 1f 17).
On October 3,2009, Plaintiff became ill, displaying flu-like symptoms, and was
subsequently hospitalized for two days in Defendant's hospital. (Id. at 1f 18). After
recuperating, Defendant notified Plaintiff that he would need to consult Dr. Amenter before
returning to work. (Id. at 1Ml19-20). Dr. Amenter required Plaintiff to again attain
clearances from his family physician and cardiologist. (Id. at 1f 21). Despite the fact that
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Plaintiffs doctors "confirmed that Plaintiff could return to work at full capacity without any
limitations," Defendant "did not permit [Plaintiff] back to work until November 22,2009, at
which time Plaintiff was demoted from his former Security Officer, job [sic] where he had
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worked 22.5 hours per week, to a per diem Courier position, working only as needed." (/d.
at 1f1f 22-23). Following his second hospital stay, Plaintiffs "work hours as a Security Officer
were assigned to substantially younger employees who had not taken leaves of absence
Defendant employed Plaintiff for various intervals between December 1993 and 2003. (Compl., Doc. 1,
10). In 2005, Defendant rehired Plaintiff as a Security Officer. (ld)
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from work for serious medical conditions, none of whom [Defendant] regarded as disabled."
(ld. at ~ 31).
Because his weekly work hours as a Courier (between 5.5 hours and 16.5 hours per
week) were less than what they had been as a Security Officer (22.5 hours), Plaintiff wrote a
letter to his supervisor requesting to be reinstated as a Security Officer. (ld. at ml25-26).
Two days later, Defendant advised Plaintiff that his letter was accepted as his "resignation."
(Id. at ~ 27). Plaintiff alleges that (1) Defendant "unilaterally decided to characterize the
letter as a 'resignation,'" (2) "[t]he letter was not a 'resignation,'" and (3) Defendant's actions
constituted constructive discharge and "had discriminatory motives ... based upon
[Plaintiff]'s age and perceived disability." (ld. at ml28-30, 33).
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission ("EEOC") and cross-med with the Pennsylvania Human Relations Commission
("PHRCn). (Id. at ~ 4). He received his right-to-sue letters from the EEOC on October 3,
2012 and from the PHRC on February 23,2012. (ld. at ml5-6).
III. Standard of Review
A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege
"enough facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must
aver "factual content that allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937,1949,173 L. Ed. 2d 868 (2009).
"Though acomplaint 'does not need detailed factual allegations, ... aformulaic
recitation of the elements of acause of action will not do.'" DelRio-Mocci v. Connolly Prop.
Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,
"[ijactual allegations must be enough to raise a right to relief above the speculative leveL"
Covington V. Int'I Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)
(internal citations and quotation marks omitted). Acourt "take[s] as true all the factual
allegations in the Complaint and the reasonable inferences that can be drawn from those
facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements. Ethypharm S.A. France v.
Abbott Laboratories, 707 F.3d 223,231, n.14 (3d Cir. 2013) (internal citations and quotation
marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take note of the
elements a plaintiff must plead to state a claim. Second, the court should
identify allegations that, because they are no more than conclusions, are not
entitled to the assumption of truth. Finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013)
"[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not show[n] - that the
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pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks
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omitted). This "plausibility" determination will be a "context-specific task that requires the
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reviewing court to draw on its judicial experience and common sense." Id.
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Where "a complaint is subject to a Rule 12(b)(6) dismissal, a district court must
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permit a curative amendment unless such an amendment would be inequitable or futile."
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Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010)
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cert. denied, -
U.S. -,131 S.Ct. 1798, 179 L. Ed. 2d 655 (2011) (internal citations
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and quotation marks omitted).
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IV. Analysis
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A. Disability Discrimination 2
Under the ADA, an employer may not "discriminate against a qualified individual on
the basis of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms, conditions,
and privileges of employment." 42 U.S.C. § 12112(a). To state a claim for disability
discrimination under the ADA, a plaintiff must allege that "(1) he is a disabled person within
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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
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suffered an otherwise adverse employment decision as a result of discrimination ...."
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2 Because "analysis of an ADA claim applies equally to a PHRA claim," the Court will, therefore, consider
both claims simultaneously and will refer to the two separate counts of discrimination as the "disability
discrimination claims." Reifer v. Colonial Intermediate Unit 20,462 F. Supp. 2d 621, 630 nA (M.D. Pa.2006)
(quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296,306 (3d Cir. 1999).
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Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186 (3d Cir. 2009) (quotation marks
omitted). The ADA defines "disability" as: (A) "a physical or mental impairment that
substantially limits one or more of the major life activities of such [an] individual"; (8) "a
record of such an impairment"; or (C) "being regarded as having such an impairment." 42
U.S.C. § 12102(1).
Here, Plaintiff does not allege that he was disabled but that Defendant regarded him
as being disabled. (Comp!., Doc. 1, at 1f 38). An employee is "regarded as" being disabled
if the employee:
(1) Has a physical or mental impairment that does not substantially limit major
life activities but is treated by the [employer1 as constituting such
limitation;
(2) Has a physical or mental impairment that substantially limits major life
activities only as a result of the attitudes of others toward such
impairment; or
(3) Has [no such impairment] but is treated by a[n] [employer] as having a
substantially limiting impairment.
Tay/orv. Pathmark Stores, Inc., 177 F.3d 180, 187 (3d Cir. 1999) (citing 29 C.F.R. §
1630.2(1 ).
Moreover, "to be covered under the 'regarded as' prong of the ADA the employer
must regard the employee to be suffering from an irnpairment within the meaning of the
statutes, not just that the employer believed the employee to be somehow disabled."
Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir. 2002) (internal quotation marks and
brackets omitted). As a result, this analysis focuses not on the employee and his actual
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abilities and impairments, "but rather on the reactions and perceptions of the persons
interacting or working with him." Kelly v. Drexel Univ., 94 F.3d 102, 108-09 (3d Cir. 1996).
For the purposes of its Motion to Dismiss, Defendant does not contest that 'Plaintiff
has sufficiently pleaded that he was disabled, otherwise quali'fled, and suffered adverse
employment actions when he was demoted and then ultimately determined to have
resigned. , .
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(Def.'s Reply Mem., Doc. 12, at 2 n.1, 4). Instead, Defendant disputes only
whether Plaintiff pleaded enough facts to satisfy the third element (id. at 4), i.e., whether
Plaintiffs adverse employment was "a result of' his alleged disability. See Hohider, 574
F.3d at 186.3
Although Plaintiff does not directly rebut Defendant's argument regarding the third
element, Plaintiff asserts:
Plaintiff had a long history of being employed by Defendant as a Security
Guard, Plaintiff became ill, sustained an aortic aneurysm and required open
heart surgery. Plaintiffs physiCians released him to return to work without
any restrictions and despite receiving clearances from his physicians to return
to work at full capacity without any limitations, Defendant did not permit
Plaintiff to return to work as a Security Officer. These facts establish
misperceptions by Defendant; that Defendant believed Plaintiff had a physical
impairment that prohibited him from working as a Security Officer and a
3 To this end, Defendant further asserts that "Plaintiff has ... to show how he and other non-disabled
employees were similarly situated but treated differently" because of his protected class. (Def.' s Reply Mem., Doc.
12, at 4). In support of this argument, Defendant cites Sarullo v. u.s. Postal Serv., 352 F.3d 789, 798 (3d Cir.
2003). (Def. 's Reply Mem., Doc. 12, at 4). However, the Third Circuit observed in Sarullo that it had "explicitly
rejected [such] a requirement." Sarullo, 352 F.3d at 797 n.7 (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344,
352 (3d Cir. 1999». Instead, employees are only required to muster enough "'evidence adequate to create an
inference that an employment decision was based on an illegal discriminatory criterion. ", Pivirotto, 191 F.3d at 355
(quoting O'Connor v. Consolo Coin Caterers Corp., 517 U.S. 308,312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996».
Under the ADA, "favorable treatment outside the protected class is an 'alternative' element to a primajacie case ...
[which] can be present but by no means must be present." Matczakv. Frankford Candy & Chocolate Co., 136 F.3d
933,939 (3d Cir. 1997).
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mistaken belief that the irnpairment substantially limited Plaintiff from
functioning as a Security Officer.
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(PI.'s Mem. in Opp., Doc. 10-1, at 13-14; Compl., Doc. 1, at 1111 10-14,22-23).
Plaintiff further avers that just over six months after his return to work following open
heart surgery, Plaintiff was demoted from security officer to Courier. (Comp!., Doc. 1, at 11
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23). Less than two months later, Plaintiff alleges, he was constructively discharged. (Id. at
1111 17, 28-30). Although, on its own, lithe mere fact that an employer is aware of an
employee's impairment is insufficient to demonstrate either that the employer regarded the
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employee as disabled or that that perception caused the adverse employment action," there
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is no dispute that Defendant was aware of Plaintiffs medical maladies. Kelly, 94 F.3d at
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109. One of Defendant's doctors examined Plaintiff prior to his return to work follOwing both
his heart surgery and his flu-like virus. (Id. at 1J1J 15, 20; Def.'s Mem. in Supp., Doc. 7, at 1
n.1, 2).
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While Plaintiff does not raise this argument in his opposition memorandum, several
courts have found that the "temporal proximity" between an employee's disclosure of an
impairment and an adverse employment action may be sufficient to support an inference
that the employer regarded the employee as disabled and that that perception caused the
adverse employment action. See Warshaw v. Concentra Health Servs., 719 F. Supp. 2d
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484,496 (E.D. Pa. 2010) ("As a general matter, a fact-finder could reasonably conclude that
adverse actions suffered by an employee shortly after an employer learns of the disability
are, in fact, based on the employer's belief that the employee is limited in a major life
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activity."); Kiniropoulos v. Northampton Cnty. Child Welfare Serv., Civil Action No. 11-6593,
2013 WL 140109, at *5 (E.D. Pa. Jan. 11,2013) (finding temporal proximity, between an
employee's disclosure to his supervisor that he sustained signi'ficant injury to his leg and an
adverse employment action approximately five months later, was sufficient to support
inference that the employer's action was "because of' a perceived disability); Weaver v.
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CntyofMcKean, C.A. No. 11-254,2012 WL 1564661, at *4 (W.O. Pa. Apr. 9, 2012) (finding
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Civ. A. 99-748, 2000 WL 1858719, at *5 (E.D. Pa. Dec. 19,2000) (finding a temporal
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proximity that raised an inference of discriminatory motive); Stewart v. Bally Total Fitness,
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a prima facie case of "regard as" discrimination based on the immediacy of an employee's
placement on "administrative leave" and eventual termination after her employer discovered
"her psychological conditions and medication regimen"); Bullock v. Balis & Co., Inc., No.
No. Civ. A. 99-3555, 2000 WL 1006936, at *5 (E.D. Pa. July 20, 2000) (same).
Here, the temporal proximity between Defendant's discovery of Plaintiffs medical
issues and Defendant's decision to demote and allegedly constructively discharge Plaintiff
raises an inference that these "employment decision[s] [were] based on an illegal
discriminatory criterion" based on. See O'Connor, 517 U.S. at 312; Warshaw, 719 F. Supp.
2d at 496. As a result, Plaintiff has adequately stated a claim of disability discrimination
under the ADA. Therefore, the Court must deny Defendant's motion to dismiss Plaintiffs
disability claims.
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V. Age Discrimination4
Under the ADEA, an employer may not "discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). "To
state a claim for age discrimination under the ADEA, a plaintiff must allege that (1) he is
over forty, (2) he is qualified for the position in question, (3) he suffered from an adverse
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employment decision, and (4) his replacement was sufficiently younger to permit a
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reasonable inference of age discrimination." Thomas v. Lehighton Emergency Med. Assoc.,
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P.C., 3:12-CV-0655, 2012 WL 3536985, at *3 (M.D. Pa. Aug. 15,2012) (quoting Hill v.
Borough of Kutztown, 455 F.3d 225, 248 (3d Cir. 2006).
Here, Defendant contests the fourth element, asserting that Plaintiff fails to
"sufficiently establish an inference of age discrimination ...." (Def.'s Reply Sr., Doc. 12, at
6-7). According to Defendant, the Complaint alleges that Plaintiff is currently eighty-one
years old but fails to specify the ages of the employees who replaced Plaintiff as Security
Officer. (Compl., Doc. 1, at1f1l7, 31). Nevertheless, the Court will not dismiss Plaintiffs
age discrimination claims on this basis. Given that Plaintiff was eighty-one years old at the
time he filed the Complaint, whoever replaced him would likely be substantially younger
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than him. See also Thomas v. Lehighton Emergency Med. Assoc., P.C., 3:12-CV-0655,
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4 Because it is "proper to address ADEA and PHRA age discrimination claims collectively," the Court
will consider both claims coterminously and will refer to the two separate counts of discrimination under the ADEA
and the PHRA as the "age discrimination claims." Thomas v. Pocono Mountain Sch. Diat., 3:10-CV-1946, 2012
WL 3542413, at *3 n.l (M.D. Pa. Aug. 14,2012) (quoting Colwell v. Rite Aid Corp., 602 F.3d 495, 499 n. 3 (3d Cir.
2010).
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2012 WL 3536985, at *3 (M.D. Pa. Aug. 15, 2012). Requiring Plaintiff to re-plead his age
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discrimination claims would elevate form over substance. Therefore, while this allegation is
barely sufficient to survive a motion to dismiss, the issue may be properly revisited after
discovery. See Sadowski v. Nanticoke, No. 3:10-CV-242, 2013 WL 1176254, at *5-6 (M.D.
Pa. Mar. 20, 2013).
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VI. Conclusion
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For the foregoing reasons, the Court will deny Defendants' motion to dismiss. (Doc.
6). Aseparate Order follows.
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obert D. Mariani
United States District Judge
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