Varone v. Great Wolf Lodge of the Poconos, LLC

Filing 21

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 4/8/2016. (emksec, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
________________________________
DANA VARONE,
Plaintiff,
v.
GREAT WOLF LODGE OF THE
POCONOS, LLC; GREAT WOLF
RESORTS, INC.; GREAT LAKES
SERVICES, LLC; GREAT WOLF
LODGE; GREAT WOLF RESORTS;
GREAT WOLF RESORTS, INC.,
Defendants.
________________________________

:
:
:
:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 3:15-CV-304
(Judge Kosik)

MEMORANDUM
Before the court is Defendant’s Motion to Dismiss (Doc. 16) Count I and Count
III of Plaintiff’s First Amended Complaint (Doc. 6), as well as Plaintiff’s request for
punitive damages and equitable relief. For the reasons which follow, the Defendant’s
Motion to Dismiss will be denied.

BACKGROUND
Plaintiff, Dana Varone, filed a Complaint in the instant action on February 11,
2015. An Amended Complaint (Doc. 6) was filed on May 6, 2015. The Amended
Complaint contains three Counts: Count I for discrimination and failure to
accommodate during pregnancy under the Americans with Disabilities Act (ADA);
Count II for violations of the Pregnancy Discrimination Act (PDA); and Count III for
violations of the Pennsylvania Human Relations Act (PHRA)1.
On July 7, 2015, Defendant filed a Motion to Dismiss (Doc. 16) and a Brief in
Support thereof (Doc. 17). A Brief in Opposition (Doc. 19) was filed on July 8, 2015.
A Reply Brief (Doc. 20) was filed on July 22, 2015.
1

A Motion to Dismiss was filed on June 4, 2015. Following the filing of a Stipulation amending the
named Defendants, a new Motion was filed.

STANDARD OF REVIEW
In considering a motion to dismiss under Rule 12(b)(6), the court must accept
all allegations in the complaint as true, and view all factual disputes in favor of the
plaintiff. Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002). A motion
under Rule 12(b)(6) allows the defendant to raise the defense that the plaintiff fails to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Rule 8 of
the Federal Rules of Civil Procedure provides that a pleading must set forth a claim
for relief, which contains a short and plain statement of the claim, showing that the
pleader is entitled to relief. The complaint must provide the defendant with fair notice
of the claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The issue in
a motion to dismiss is whether the plaintiff should be entitled to offer evidence to
support the claim, not whether the plaintiff will ultimately prevail. See Phillips v. Cnty.
of Allegheny, 515 F. 3d 224, 232 (3d Cir. 2008) (the Rule 8 pleading standard “simply
calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence of the necessary element.”); Nami v. Fauver, 82 F. 3d 63, 65 (3d Cir. 1996).
The onus is on the plaintiff to provide a well-drafted complaint that alleges
factual support for its claims. “While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, 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.” Twombly,
550 U.S. at 555 (alteration in original and internal citations omitted). The court need
not accept unsupported inferences, Cal. Pub. Employees Ret. Sys. v. The Chubb
Corp., 394 F.3d 126, 143 (3d Cir. 2004), nor legal conclusions cast as factual
allegations, Twombly, 550 U.S. at 556. Legal conclusions without factual support are
not entitled to the assumption of truth. See Ashcroft v. Iqbal, 556 U.S. 662, 677-679
(2009) (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not” satisfy the requirements of Rule 8).
-2-

Once the court winnows the conclusory allegations from those allegations
supported by fact, which it accepts as true, the court must engage in a common
sense review of the claim to determine whether it is plausible. This is a contextspecific task, for which the court should be guided by its judicial experience. The
court must dismiss the complaint if it fails to allege enough facts “to state a claim to
relief that is plausible on its face.” Iqbal, 556 U.S. at 677 (quoting Twombly, 550 U.S.
at 570). A “claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 677.

DISCUSSION
In her Amended Complaint, Plaintiff alleges that on or about October 10,
2005, she was hired by Defendant as an Aveda Advisor and a massage therapist.
Plaintiff worked her full schedule of appointments as required by Defendant from the
time of her hire until on or about November 13, 2012. On or about November 13,
2012, Plaintiff presented Defendant with a letter from Plaintiff’s physician indicating
that she would be unable to work for an indeterminate period of time due to the fact
that she was pregnant and there were complications with the pregnancy. As a result
of the letter from her physician, Plaintiff was approved for leave by Defendant under
the Family and Medical Leave Act, through February 4, 2013. Plaintiff asserts that
on or about December 13, 2012, Plaintiff returned to work as the result of an updated
letter from her physician indicating that the complications had been resolved and
authorizing her to return to work without restriction. On or about February 1, 2013,
Plaintiff presented Defendant with a letter from her physician indicating that Plaintiff’s
pregnancy would at that time require that she be permitted short rest periods
between massages of approximately ten (10) minutes each.

-3-

Plaintiff alleges that her employment as a massage therapist required her to
stand for long periods of time and caused pain and cramping in her legs, along with
cramping and pains throughout her stomach and chest. Defendant permitted Plaintiff
to take some, but not all, of the required rest periods from the time of her request
until on or about April 3, 2013. Plaintiff asserts that Defendant’s refusal to permit all
of the required rest periods caused Plaintiff to suffer from stress and anxiety, fearing
for the health of her baby. Plaintiff’s physician prescribed medication for her anxiety,
but fear that medication could affect her baby caused Plaintiff to suffer even greater
fear and anxiety.
Plaintiff alleges that on or about April 3, 2013, Defendant removed Plaintiff
entirely from their schedule of massages, indicating that they could no longer
accommodate the rest periods required by her pregnancy. On or about April 16,
2013, Plaintiff provided Defendant with an updated letter from her physician stating
the pregnancy required the continuation of the rest periods between massages. On
or about April 17, 2013, Defendant indicated that it would no longer accommodate
Plaintiff’s condition and formally terminated Plaintiff. Plaintiff gave birth to a son on
June 7, 2013. Plaintiff alleges that Defendant routinely accommodates other
employees’ medical conditions that require similar accommodation to that requested
by Plaintiff, and that Defendant treated Plaintiff’s pregnancy differently than it treated
other employees who were temporarily disabled as a result of medical conditions.
Plaintiff alleges that Defendant discriminated against her based on her pregnancy in
violation of her rights under the ADA, the PDA and the PHRA.
The first argument raised by Defendant in the Motion to Dismiss is that Counts
I and III of the Amended Complaint should be dismissed because Plaintiff has failed
to state facts sufficient to sustain a cause of action under the ADA. Specifically,
Defendant argues that a temporary or non-permanent impairment is not a disability
that substantially limits a major life activity, that Plaintiff does not provide facts to
-4-

support her conclusions, and that Plaintiff has failed to set forth sufficient allegations
to establish that any complications arising out of her pregnancy rise to the level of a
disability under the ADA.
In opposition to Defendant’s argument, Plaintiff argues that Defendant fails to
take into account the 2008 changes to the ADA, specifically, the ADAAA and the
United States Supreme Court decision in Young v. United Parcel Services, Inc.,
_U.S._, 135 S.Ct. 1338 (2015).
While we agree with Defendant that Young supra. dealt predominately with
the Pregnancy Discrimination Act, the Court did state in dicta that:
We note that statutory changes made after the time of Young’s pregnancy may
limit the future significance of our interpretation of the [Pregnancy Discrimination]
Act. In 2008, Congress expanded the definition of “disability” under the ADA to
make clear that “physical or mental impairment[s] that substantially limi[t]“ an
individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA
Amendments Act of 2008 [ADAAA], 122 Stat. 3555, codified at 42 U.S.C. §§
12102(1)-(2). As interpreted by the EEOC, the new statutory definition requires
employers to accommodate employees whose temporary lifting restrictions
originate off the job. See 29 CFR pt. 1630, App., §1630.2(j)(1)(ix). We express
no view on these statutory and regulatory changes. Young, _U.S._, _, 135 S.Ct.
at 1348.
Moreover, the ADA Amendments of 2008 (ADAAA) broadened the definition
of disability to include broad coverage of individuals to the maximum extent permitted
by the ADA’s terms. The EEOC’s revised regulations state that a pregnancy related
impairment that substantially limits a major life activity is a disability. 29 C.F.R. Pt.
1630, App. §1630.2(h) (effective May 24, 2011). Additionally, guidelines set out by
the EEOC following the passage of the ADAAA state that although pregnancy is not
an impairment within the meaning of the ADA and is never a disability on its own,
some pregnant workers may have impairments related to their pregnancies that
qualify as disabilities under the ADA, as amended. See, Bray v. Town of Wake
Forest, 2015 WL 1534515 (E.D.N.C., April 6, 2015).
Finally, we have reviewed the cases cited by Defendant and note that in Kelly

-5-

v. Horizon Med. Corp., 2014 WL 1293859 (M.D. Pa, March 31, 2014), the matter was
decided on a Motion for Summary Judgment, discussed the temporary nature of
pregnancy, and raised issues of infertility. In Oliver v. Scranton Materials, Inc., 2015
WL 1003981 (M.D. Pa., March 5, 2015), which was decided on a Motion to Dismiss,
the Complaint makes vague references to pregnancy-related complications, and
while the court granted the Motion to Dismiss, it allowed the Plaintiff an opportunity to
amend.
In the First Amended Complaint, Plaintiff alleges that her job as a massage
therapist required her to stand for long periods of time and caused pain and
cramping in her legs, along with cramping and pain throughout her stomach and
chest, that she suffered anxiety and stress, and that she was limited in her ability to
perform major life activities, including her ability to lift, stop, walk, turn, think,
concentrate, bend, care for herself, sit and stand for long periods of time and relate
to others. In light of the Amendments to the ADA, and the EEOC Guidelines, and in
accepting the Plaintiff’s allegations as true, and viewing them in the light most
favorable to Plaintiff, we find that Plaintiff has sufficiently set forth a claim under the
ADA2. Accordingly, we will deny Defendant’s Motion to Dismiss Counts I and III.
Defendant also argues that Plaintiff has failed to state sufficient facts to
sustain a request for punitive damages and for equitable relief. We will deny the
Defendant’s Motion as to punitive damages and equitable relief at this time. In
accepting the allegations in Plaintiff’s Amended Complaint as true, and viewing them
in the light most favorable to Plaintiff, we believe Plaintiff is entitled to proceed on
these claims at this stage of the proceedings.

2

As Defendant points out, the ADA and PHRA are generally interpreted in the same way. Thus,
our findings as to the ADA apply to the PHRA as well.

-6-