Pierce-Schmader v. Mount Airy Casino and Resort

Filing 14

MEMORANDUM and ORDER granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim ; pltf's allegation of constructive discharge is DISMISSD; Motion GRANTED re pltf seeking reinstatement, front pay, back pay, benefits or other monetary or equitable employment-related damages; and DENYING the dismissal of pltf's punitive damages claim. Signed by Honorable James M. Munley on 9/11/13 (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHELLE PIERCE-SCHMADER,
Plaintiff

:
No. 3:13cv1141
:
:
(Judge Munley)
v.
:
:
MOUNT AIRY CASINO
:
AND RESORT,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM

Before the court for disposition is the Defendant Mount Airy Casino
and Resort’s (hereinafter “defendant”) motion to dismiss Plaintiff Michelle
Pierce-Schmader’s amended complaint in this employment discrimination
case. The matter has been fully briefed and is ripe for disposition.
Background
Plaintiff worked for defendant in Mount Pocono, Pennsylvania, as a
cocktail server commencing in September 2007. (Doc. 8, Am. Compl.
(hereinafter “Am. Compl.”) ¶ 4). Defendant promoted plaintiff to the
position of beverage shift manager in June 2008. (Id. ¶ 5). Plaintiff had
perfect attendance at her job, and defendant never reprimanded her during
her tenure. (Id. ¶ 6).
On December 25, 2008, plaintiff suffered a work-related injury to her
knee. (Id. ¶ 7). She had knee surgery in January 2009. (Id.) Plaintiff was
off from work for a period of time because of the surgery, and Plaintiff’s
doctor established various restrictions or accommodations on plaintiff’s
return to work. For example, she was limited to lifting no more than forty

(40) pounds; she was to be allowed to sit/stand as needed; to use ice as
needed and to park close to the building. (Id. ¶ 8). Defendant made none
of these accommodations except allowing plaintiff to park close to the
building. (Id. ¶ 9).1 In fact, defendant refused to review the doctor’s
requested work restrictions and gave her a heavier work load. (Id. ¶¶ 10,
12). In October 2009, plaintiff suffered another work-related injury, that is,
she slipped and fell over a company waxing machine that was left
unattended. (Id. ¶ 15).
In January 2010, plaintiff’s immediate supervisor, Nelson Tavares,
began treating her differently from other employees. (Id. ¶ 16). Plaintiff
reported in April 2010 that she felt that she was treated differently based
upon her race. (Id. ¶ 17). Plaintiff’s national origin is American Indian
(Meherrin Tribe) and Cape Verdean. (Id. ¶ 3). Tavares made personal
attacks on plaintiff, including calling her a derogatory name and insinuating
that she was a “drooling idiot.” (Id. ¶ 20). Tavares made racial slurs and
comments around the workplace. (Id. ¶ 21). Additionally, other beverage
shift managers made negative comments about plaintiff and her physical
limitations, for example, her inability to change kegs. (Id. ¶ 19).
Plaintiff underwent another surgery on her knee in May 2010 due to
defendant assigning her excessive and unwarranted work and not honoring
1

Plaintiff’s amended complaint later asserts that the only
accommodation provided to plaintiff was the opportunity to ice her knee.
(Am. Compl. ¶ 70).
2

her work restrictions. (Id. ¶ 22). She was also treated for a bulging disk in
her neck and back. (Id. ¶ 23). Plaintiff’s doctor removed her temporarily
from work. (Id. ¶ 25). She was off from work from May 2, 2010 and
medically released to return to work in January or February 2011. (Id. ¶¶
26-27).2 Plaintiff, however, had difficulty reaching defendant about
returning to work. (Id. ¶ 27). Defendant did not answer the many
telephone calls she made. Finally, plaintiff went in person to defendant to
ask for her job back. (Id. ¶¶ 27-28).
Defendant allowed plaintiff to return to work in April 2011. (Id. ¶ 29).
Defendant did not provide her with the job she previously had as a food
and beverage manager, but instead offered her a position in the laundry
room located in the basement, where plaintiff folded linens and polished
silverware. (Id. ¶¶ 29-30). After several weeks of working in the
basement, plaintiff began to experience much more pain in her knee and
shoulder. (Id. ¶ 31). After contacting defendant’s human resources
department, plaintiff was transferred to an office position where she
assisted other employees working in the Buyers and Financial Department.
(Id. ¶ 33). Plaintiff’s doctor removed her from work in June 2011 due to
excessive swelling and pain that plaintiff had due to working in the

2

Plaintiff’s amended complaint asserts that she was medically
released to return to work in February 2011 in paragraph 26 and then in
paragraph 27 indicates that she was released to return to work in January
2011. (Am. Compl. ¶¶ 26-27).
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basement. (Id. ¶ 35).
At some point previous to July 2011, plaintiff had filed a workers’
compensation case regarding her work-related injuries. She settled the
case on July 29, 2011. (Id. ¶ 36). As part of her workers’ compensation
agreement, plaintiff voluntarily resigned her position with defendant. (Id. ¶
37). Even though plaintiff voluntarily submitted her resignation, she
believes that defendant’s actions prior to July 2011 were done in an
attempt to obtain her resignation. (Id. ¶ 41). She asserts that not allowing
her to return to work as a food and beverage manager and instead
providing her with a position folding linens and polishing silverware was a
constructive discharge. (Id. ¶ 43).
Based upon these facts, plaintiff filed the instant four-count
employment discrimination lawsuit. Count I of the amended complaint
alleges racial discrimination, nationality discrimination and disability
discrimination in violation of the Pennsylvania Human Relations Act, 43 PA.
STAT. ANN. § 951, et seq. (Id. ¶¶ 53-59). Count II alleges a violation of the
Americans with Disability Act (hereinafter “ADA”), 42 U.S.C. § 12101, et
seq. (Id. ¶¶ 60-64). Count III is brought pursuant to 42 U.S.C. § 1981 and
alleges unlawful discrimination in the making and enforcement of contracts.
(Id. ¶¶ 64-75). Count IV asserts a violation of Title VII of the Federal Civil
Rights Act of 1991, 42 U.S.C. § 2000(e). (Id. ¶¶ 76-79).
Plaintiff originally filed her complaint in the Monroe County Court of

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Common Pleas. The defendant filed a notice of removal, bringing the case
to this court on April 29, 2013. (Doc. 1, Not. of Rem.). Defendant then
filed a motion to dismiss the complaint. (Doc. 6). In response to the
motion to dismiss, plaintiff filed an amended complaint. (Doc. 8).
Defendant then filed a motion to dismiss the amended complaint for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6) as well as a
motion to strike. (Doc. 10). The parties have briefed their respective
positions, bringing the case to its present posture.
Jurisdiction
Plaintiff’s amended complaint sets forth several causes of action
based upon federal anti-discrimination statutes. Thus, we have
jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). We have supplemental jurisdiction over
the plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
Legal standard
Defendant filed its motion to dismiss the amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). When deciding a
Rule 12(b)(6) motion, all well-pleaded allegations of the complaint must be
viewed as true and in the light most favorable to the non-movant to
determine whether, “under any reasonable reading of the pleadings, the
plaintiff may be entitled to relief.” Colburn v. Upper Darby Twp., 838 F.2d

5

663, 665-66 (3d Cir. 1988) (internal quotation marks and citation omitted).
The plaintiff must describe “‘enough facts to raise a reasonable expectation
that discovery will reveal evidence of’ [each] necessary element” of the
claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007)). The court does not have to accept legal conclusions or
unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of
Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006). The “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570). Such “facial plausibility” exists
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556).
Discussion
Defendant’s motion to dismiss raises the following three (3) issues:
1) Did plaintiff sufficiently plead constructive discharge to permit any claim
upon which relief may be granted under Title VII, ADA, section 1981 and/or
the PHRA? 2) In the absence of a constructive discharge should the court
dismiss or strike plaintiff’s demand for reinstatement, front pay, backpay,
benefits or other monetary or equitable employment-related relief? and 3)
Should the court dismiss or strike plaintiff’s demand for punitive damages?

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We will address these issues in seriatim.
I. All of plaintiff’s causes of action
First, defendant argues that an element of all plaintiff’s causes of
action is “constructive discharge” or that the discriminatory conditions were
so intolerable that a reasonable person would be compelled to resign.
Plaintiff’s amended complaint, however, contends that she voluntarily
resigned her position as part of a workers’ compensation stipulation. Thus,
she cannot establish a constructive discharge, and all of the causes of
action should be dismissed. After a careful review, we disagree with the
defendant.
Defendant’s initial premise is flawed. Not all of plaintiff’s causes of
action depend on a “constructive discharge.” Rather, each of her claims
require an “adverse employment action.” See Jones v. Sch. Dist. of
Phila., 198 F.3d 403, 412 (3d Cir. 1999) (indicating that an adverse
employment action is needed to assert a claim under the PHRA, Title VII
and the ADA); Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009)
(explaining that the substantive elements of a section 1981 claim are the
same as a claim under Title VII.). A constructive discharge is an adverse
employment action, but it is not the only type of adverse employment
action alleged by the plaintiff. We will discuss the issues of “adverse
employment action” and “constructive discharge” in turn.
A. Adverse Employment Action

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An adverse employment action is “an action by an employer that is
‘serious and tangible enough to alter an employee's compensation, terms,
conditions, or privileges of employment.”’ Storey v. Burns Int'l Sec. Servs.,
390 F.3d 760, 764 (3d Cir. 2004) (quoting Cardenas v. Massey, 269 F.3d
251, 263 (3d Cir.2001)). The Third Circuit Court of Appeals has noted that
“[o]bviously, something less than a discharge could be an adverse
employment action.” Jones, 198 F.3d at 411. For example, the court has
held that transfers and demotions may demonstrate adverse employment
actions. Id. at 411-12.
Plaintiff has alleged adverse employment actions. With regard to her
race claim, she asserts that her immediate supervisor began harassing her
in January 2010 and plaintiff believed that she was being treated differently
because of her race. (Am. Compl. ¶¶ 16-17). Additionally, with respect to
her disability claim, plaintiff alleges that defendant would not even look at
the restrictions her doctor gave her and, in fact, gave her a heavier work
load after her surgery than she had before. (Id. ¶ 10). As a result, plaintiff
needed a second surgery. (Id. ¶ 22). When she was released by the
doctor to return to work, the defendant would not return her telephone
calls. (Id. ¶ 27). Then when the defendant finally did offer to take her
back, it did not offer to her the position that she formerly held, but gave her
a job in the basement folding linens and polishing silverware. (Id. ¶ 30).
Although the complaint does not explicitly so state, it can be inferred that

8

this basement job was less desirable than her job as a Food and Beverage
Manager. These actions can be seen as serious enough to alter the terms
and conditions of her employment.3 As such they can be seen as adverse
employment actions and plaintiff need not allege a constructive discharge.
Thus, defendant’s argument that plaintiff did not properly allege a
constructive discharge is not adequate grounds to dismiss the case.
B. Constructive Discharge
Defendant is correct in noting, however, that plaintiff’s complaint is
based in part on a “constructive discharge.” We agree with the defendant
that plaintiff cannot establish a constructive discharge, and plaintiff’s claim
of a constructive discharge will be dismissed.
A constructive discharge exists when “the employer makes working

3

Some of the specific allegations of adverse employment actions are
as follows:
Count I, PHRA-Defendant discriminated against plaintiff based on the
color of her skin, her American Indian and Cape Verdean descent, and her
disabilities in that she was harassed and not accommodated for her
disability. (Am. Compl. ¶¶ 56, 58).
Count II, ADA-defendant failed to follow plaintiff’s doctor’s requested
work limitations. (Id. ¶ 62).
Count III, Section 1981-“[P]laintiff’s supervisor intentionally
sentenced the Plaintiff to a heavier workload and failed to acknowledge her
work restrictions in place by her doctor.” (Id. ¶ 69). “Plaintiff believes, and
therefore avers, she was discriminated against based on her race and her
disability, since her only accommodation made after her injury was to take
only a five (5) minutes break to ice her knee, even though other employees
were allowed a full twenty (20) minute break to smoke a cigarette. (Id. ¶
70).
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conditions so intolerable that the employee is forced to resign.” Pa. Labor
Relations Bd. v. Sand's Rest. Corp., 240 A.2d 801, 803–04 (Pa. 1968). The
standard for intolerability is one of reasonableness—whether a reasonable
person in the employee's position would feel compelled to resign. Helpin v.
Trs. of the Univ. of Pa., 969 A.2d 601, 614 (Pa. Super. Ct. 2009) (citing
Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir. 1998)).
“Constructive discharge occurs when an employer knowingly permit[s]
conditions of discrimination in employment so intolerable that a reasonable
person subject to them would resign.” Spencer v. Wal-Mart Stores, 469
F.3d 311, 317 n.4 (3d Cir. 2006) (internal citation and quotation marks
omitted). In the instant case, however, a constructive discharge did not
occur. Plaintiff alleges that she resigned from her position
With regard to “constructive discharge,” plaintiff avers, “Defendant’s
actions in April of 2011, making [plaintiff] work in the basement, folding
linens and polishing silverware in the laundry room instead of allowing her
to return to her position as Food and Beverage Manager, constituted a
constructive discharge.” (Am. Compl. ¶ 43). Plaintiff did not resign at this
point, so it cannot be alleged that providing her a job in the laundry room
was a constructive discharge. In fact, the complaint alleges that after two
(2) or (3) weeks, plaintiff’s knee and shoulder pain increased due to the
laundry room position. (Id. ¶ 31). She contacted the defendant’s Human
Resources Department, which told her that they would try to transfer her to

10

another department. (Id. ¶ 32). Plaintiff then was transferred to a position
“where she had her own cubicle and spent a lot of time assisting other
employees and working in the Buyers and Financial Department.” (Id. ¶
33). Thus, plaintiff was transferred to what was apparently a more
suitable position. There was no separation from work at this point, hence,
it is not appropriate to claim that the basement work assignment was a
constructive discharge.
Moreover, plaintiff did not resign from her position until July 29, 2011
as part of the settlement of her workers’ compensation claim. (Id. ¶ 36).
Plaintiff’s complaint indicates that she “voluntarily resigned her position.”
(Id. ¶ 37). She admits that she resigned her position as a result of the
settlement of her workers’ compensation case. Thus, plaintiff cannot
establish a constructive discharge.
Even had she resigned separate from the workers’ compensation
settlement, a constructive discharge claim could not be established. She
told the defendant of the problem she had in the basement position. The
human resources department indicated that it would try to have her
transferred, and she was indeed transferred to an office job. Plaintiff
makes no allegation in the complaint that this new job had conditions of
discrimination so intolerable that a reasonable person subject to them
would resign. Accordingly, plaintiff could not have established a
constructive discharge claim. Spencer, 469 F.3d at 317 n.4.

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Defendant’s argument that plaintiff cannot establish a constructive
discharge is convincing. The portion of the amended complaint pertaining
to constructive discharge will be dismissed. The court, however, will allow
plaintiff’s PHRA, Title VII, ADA and section 1981 claims based on adverse
employment actions other than a constructive discharge to proceed.
Plaintiff has alleged sufficient adverse employment actions to make
dismissing these claims at this point inappropriate.
II. Damages
Plaintiff’s complaint seeks the following relief: a) that the defendant
be permanently enjoined from discriminating or retaliating against her in
violation of the ADA; b) the defendant rehire her, with full salary, seniority,
benefits and profit-sharing; c) pay, benefits, training, promotions, and
seniority that she would have received had she not been retaliated against;
d) damages for loss of opportunity and pain and suffering; e)
compensatory damages; f) interest on the amount of unpaid wages; g)
costs and reasonable attorney’s fees; h) punitive damages on the section
1981 claim; and I) any other relief, equitable or legal. (Am. Compl., Ad
Damnum Clauses).
Defendant argues that plaintiff is not entitled to recover some of
these damages. First, it argues that because she was not discharged,
monetary damages, such as back pay and front pay, are inappropriate.
Second, it argues that the workers’ compensation settlement agreement

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that she entered into precludes recovery. We will address these issues in
turn.
A. Discharge/Damages
First, defendant argues that because plaintiff cannot establish a
constructive discharge claim, she cannot recover reinstatement, front pay,
back pay, benefits or any other monetary or equitable employment-related
relief. In support of this position, defendant cites to the Third Circuit case
of Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311 (3d Cir. 2006).
In Spencer, the plaintiff, a former employee of Wal-Mart Stores, Inc.,
sued the store for violation of the ADA/hostile work environment. Id. at
313. The issue before the Third Circuit was whether the plaintiff was
entitled to an award of back pay even though she had not alleged a
constructive discharge. The court held “that a successful hostile work
environment claim alone, without a successful constructive discharge
claim, is insufficient to support a back pay award.” Id. at 317. “Put simply,
if a hostile work environment does not rise to the level where one is forced
to abandon the job, loss of pay is not an issue.” Id. The court noted that
several other circuit courts “have held similarly that a plaintiff alleging
employment discrimination must show either actual or constructive
discharge in order to receive an award of back pay.” Id. at n.6.
Thus, defendant’s argument that plaintiff is not entitled to back pay
because she cannot establish constructive discharge has merit. But, the

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Spencer case only discussed the back pay issue, not front pay, benefits
and other monetary or equitable employment-related relief. The court’s
reasoning, however, applies equally to those other damages. Loss of pay,
both back and front, and loss of benefits are not an issue if the plaintiff was
not forced to leave her job. See, e.g., Hare v. Potter, 220 Fed. App’x 120,
135 n.9 (3d Cir. 2007) (explaining in an unpublished opinion, that a plaintiff
who cannot establish constructive discharge “probably will not be able to
seek back pay or front pay.”)
Accordingly, we will grant defendant’s motion to dismiss the following
elements of damage from the case: reinstatement, front pay, back pay,
benefits or other monetary or equitable employment-related damages.
Plaintiff may still be entitled to “compensatory” damages. Compensatory
damages include: “‘future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.’” Landgraf v. USI Film Prods., 511 U.S. 244, 253 (1994)
(quoting 42 U.S.C. § 1981a (b)(3)). Thus, plaintiff’s claims will remain, but
the relief that she can recover under those claims will be limited. We will
address below whether she may seek punitive damages.
B. Worker’s Compensation settlement agreement
Defendant also alleges that as part of plaintiff’s workers’
compensation settlement, she entered into an agreement that precludes
reinstatement to her job, front pay, back pay, benefits or other monetary or

14

equitable employment-related damages. With regard to this issue,
defendant does not argue that plaintiff has waived her causes of action, but
rather, that she has waived her right to these damages under her causes
of action.
We need not address this issue as we have previously found, that
plaintiff cannot receive these damages because she cannot establish a
constructive discharge. We note, without detailed analysis, however, that
defendant’s argument appears to have merit. In her resignation letter,
plaintiff agrees not to apply for or seek reinstatement or employment with
the defendant. (Doc. 7-4, Def. Attach. 2 at 10). The letter also indicates
that plaintiff consulted with an attorney prior to resigning and that the
attorney explained the legal effect of her signing the resignation form. (Id.)
Plaintiff has entered into an agreement with the defendant to not seek
reinstatement or other certain damages. Regardless, she asks for such
relief in the instant complaint. Such a request appears to be in violation of
the agreement.
III. Punitive damages
As noted above, plaintiff’s complaint also seeks punitive damages.
Defendant argues that the punitive damages claim should be dismissed
because it is unsupported by the complaint’s allegations. We disagree.
The law provides that punitive damages may be granted in an
employment discrimination case where the employer acted with malice or

15

with reckless indifference to a federally protected right. Le v. Univ. of Pa.,
321 F.3d 403, 410 n.4 (3d Cir. 2003).
We find plaintiff’s complaint is sufficient to withstand defendant’s
motion to dismiss the punitive damages claim. As set forth above, plaintiff
alleges that the defendant took adverse employment actions against her
such as, inter alia, assigning her a heavier workload after she was injured
and failing to read the restrictions her doctor placed on her. The complaint
alleges that the defendant’s conduct was intentionally malicious, wanton
and wilful. (Am. Compl. ¶¶ 75, 79). Plaintiff has alleged facts that support
a discrimination claim and that the defendant performed its allegedly
discriminatory acts with the requisite state of mind to impose punitive
damages. It is, thus, inappropriate to dismiss the punitive damages claim
at this point.
Conclusion
For the reasons set forth above, we will grant the defendant’s motion
to dismiss in part and deny it in part. Plaintiff’s allegation of a constructive
discharge will be dismissed. Plaintiff request for reinstatement, front pay,
back pay, benefits or other monetary or equitable employment-related
damages will be dismissed. The motion to dismiss the punitive damages
claim will be denied. As such, Counts I through IV based on adverse
employment actions other than constructive discharge remain pending.
Plaintiff, however, may only recover compensatory and/or punitive
damages for these claims. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHELLE PIERCE-SCHMADER,
Plaintiff

:
No. 3:13cv1141
:
:
(Judge Munley)
v.
:
:
MOUNT AIRY CASINO
:
AND RESORT,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 11th day of September 2013, the defendant’s
motion to dismiss plaintiff’s amended complaint (Doc. 10) is hereby
GRANTED in part and DENIED in part as follows:
The motion to dismiss plaintiff’s Amended Complaint on the basis
that plaintiff has failed to allege a constructive discharge is DENIED.
Plaintiff’s allegation of a constructive discharge is DISMISSED;
The motion is GRANTED with respect to the following relief that
plaintiff seeks: reinstatement, front pay, back pay, benefits or other
monetary or equitable employment-related damages. These types of
damages are dismissed form the case;
The motion to dismiss plaintiff’s punitive damages claim is DENIED.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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