Barnard v. Lackawanna County

Filing 14

MEMORANDUM (Order to follow as separate docket entry) re 9 MOTION TO DISMISS. Signed by Honorable A. Richard Caputo on 9/25/17. (dw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHELLE BARNARD,
Plaintiff,
v.

CIVIL ACTION NO. 3:17-CV-00066
(JUDGE CAPUTO)

LACKAWANNA COUNTY,
Defendant.
MEMORANDUM
Presently before this Court is a Motion to Dismiss filed by Defendant Lackawanna
County (“Defendant”). (Doc. 9). Because Plaintiff Michelle Barnard (“Plaintiff”) has not
properly pled that she is a “qualified individual” as defined by the Americans with Disabilities
Act (“ADA”) and her retaliation claim is predicated on Defendant’s failure to accommodate
her disability, Defendant’s Motion to Dismiss will be granted.
I. Background1
The well-pleaded facts, as set forth in Plaintiff’s Complaint (Doc. 1), and
supplemented by select exhibits provided by the parties, are as follows:

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The Complaint along with four exhibits were used to establish the facts
analyzed for this motion. The four exhibits are: (1) the County Collective
Bargaining Agreement with Prison Employees (Doc. 11, Ex. B); (2) the
“Injury Report” provided by Plaintiff to Defendant (Doc. 11, Ex. A; Doc. 12,
Ex. A); (3) Defendant’s denial of Plaintiff’s requested accommodation
(Doc. 12, Ex. B), and (4) the transcript of testimony provided to the
Unemployment Compensation Board of Review (Doc. 12, Ex. C).
Explained in more detail below, this Court is generally limited to review the
facts provided in the complaint when reviewing a motion pursuant to
FED.R.CIV.P. 12(b)(6). But, it may also consider matters of public record,
orders, exhibits attached to the complaint, and undisputedly authentic
documents essential to the complaint. See, e.g., Mayer v. Belichick, 605
F.3d 223, 230 (3d. Cir. 2010). The exhibits of this nature, and those
included here, are available for consideration without converting a Motion
to Dismiss to a Motion for Summary Judgement. See Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002).

Defendant is a municipal entity: Lackawanna County. Plaintiff, Michelle Barnard, has
worked for the Defendant for over 15 years. During the relevant time, Plaintiff was employed
by Defendant as a Prison Counselor at the Lackawanna County Prison.
On or about September 24, 2014 Plaintiff alleges that she suffered a work-related
injury. Specifically, she suffered from a herniated disc. Months later, on or about April 13,
2015, Plaintiff provided Defendant with an “Injury Status Report” authored by Dr. Dean
Mozeleski, M.D.. This report detailed the physical restrictions that Plaintiff would have as
a result of her earlier, work-related injury. While Dr. Mozeleski’s report indicated Plaintiff
could only work on a part-time basis, Plaintiff immediately wanted to return to work. Upon
her request to resume work with accommodation for her injury, however, Plaintiff’s
supervisor, Christina Oprishko, informed Plaintiff that she could not work until she had no
physical restrictions.2 Plaintiff was prohibited from working at the Prison.
Employment at the Lackawanna County Prison is governed by a Collective
Bargaining Agreement (“CBA”). Plaintiff is a member of the bargaining unit covered by the
agreement. In relevant part the agreement states:
The County agrees to continue its established policy against all forms of
illegal discrimination with regard to race, creed, color, national origin, sex,
physical/metal handicap, [and/or] political affiliation . . . .”
(Doc. 11, Ex. B at 11). The agreement also established some essential terms of
employment. For example, the agreement states that:
The normal work week for regular full time employees shall consist of five (5)
days with (2) consecutive days off within any seven (7) day period. A work day
for a regular full time employee is to consist of eight (8) consecutive hours
including one half hour meal period. . . . A normal work week is to consist of
forty (40) hours. . . . There will be no split shifts.

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“I [Oprishko] informed [Plaintiff] that Lackawanna County Prison does not
offer modified or part time work. I [Oprishko] informed her that she is to
remain off of work until cleared to [return to work] without restriction.”
(Doc. 12, Ex. B).
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(Doc. 11, Ex. B at 16-17). Notably, due to her injury, Plaintiff was unable to work a
traditional, eight-hour work day. (Doc. 12, Ex. C at 12, 15). Rather, she requested to work
on a part-time basis. (Id.)
In light of the above stated facts, Plaintiff filed the instant action asserting that
Defendant’s refusal to allow her to resume work constitutes a violation of the ADA.
Specifically, Plaintiff claims that the Defendant violated the ADA by (1) discriminating
against her due to her disability, (2) failing to reasonably accommodate her disability, and
(3) retaliating against her for requesting an accommodation. Defendant has moved to
dismiss all three claims in the single-count Complaint.
Defendant’s motion has been fully briefed and is now ripe for disposition.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See FED.
R. CIV. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited
to determining if a plaintiff is entitled to offer evidence in support of their claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of
establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a).
The statement required by Rule 8(a)(2) must give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93, 127
S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam ) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed f actual
allegations are not required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. However, mere
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conclusory statements will not do; “a complaint must do more than allege the plaintiff's
entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Instead, a complaint must “show” this entitlement by alleging sufficient facts. Id. “While
legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed.
2d 868 (2009). As such, “[t]he touchstone of the pleading standard is plausability.”
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is
plausible on its face,” Twombly, 550 U.S. at 570, 127 S. Ct. 1955, m eaning enough
factual allegations “‘to raise a reasonable expectation that discovery will reveal evidence
of’” each necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. “W hen there
are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.
Ct. 1937.
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint. In addition to the allegations found in the complaint, the court may examine

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“exhibits attached to the complaint, matters of public record,” and “legal arguments
presented in memorandums or briefs and arguments of counsel.” Mayer, 605 F.3d at
230; Pryor, 288 F.3d at 560. Additionally, the Court may consider “undisputedly
authentic” documents when the plaintiff's claims are based on the documents and the
defendant has attached copies of the documents to the motion to dismiss. Am. Corp.
Soc. v. Valley Forge Ins. Co., 424 Fed. App’x. 86 (3d Cir. 2011) (citing Pension Benefit
Gaur. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)). A Court m ay
also consider a “document integral or explicitly relied upon in the complaint.” In Re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (Alito, J.). At
bottom, documents may be examined by this Court when ruling on a motion to dismiss
when Plaintiff had proper notice of the existence of the documents.3 Id. The Court need
not assume the plaintiff can prove facts that were not alleged in the complaint, see City
of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a
complaint's “‘bald assertions’” or “‘legal conclusions.’” Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1429–30 (3d Cir. 1997)).

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Here, the complaint and four additional documents have been examined
by this Court. Three documents were expressly referred to in the
complaint: (1) the “restrictions note” or “Injury Report” (Doc. 1, ¶ 11), (2)
the denial of accommodation (Doc. 1, ¶ 11), and (3) the unemployment
hearing testimony (Doc. 1, ¶ 13). The final document, the CBA, while not
expressly incorporated into the Complaint is able to be reviewed by this
Court because the Complaint necessarily relies on its terms and it is a
public record of which Plaintiff had appropriate notice. See Angstadt v.
Mid-West Sch. Dist., 377 F.3d 338, 342 (3d Cir. 2004) (noting that when a
complaint challenges the reasonableness of a regulation, the complaint
necessarily relied on those regulations and the district court could
consider them on motion to dismiss even though they were not expressly
incorporated into the complaint); Children’s Seashore House v. Waldman,
197 F.3d 654 n.7 (3d Cir. 1999) (acknowledging that district courts may
review the contents of public records on a motion to dismiss).
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III. Discussion
Defendant moves to dismiss all three of the claims raised by Plaintiff in Count I of
the Complaint: (1) Discrimination based on a disability in violation of the ADA; (2) Failure
to reasonably accommodate a disability in violation of the ADA; and (3) Retaliation
following protected employee activity in violation of the ADA.
A. Plaintiff’s ADA Claims - Discrimination and Failure to Accommodate
Under the Americans with Disabilities Act (ADA), it is clear that covered employers
are prohibited from discriminating “against a qualified individual on the basis of disability in
regard to” most employment decisions. 42 U.S.C. § 12112(a). It is similarly clear that
employers are tasked to provide disabled employees reasonable accommodations. See 42
U.S.C. 12112(b)(5); see also U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 395-96 (2002).
In order to plead a prima facie case of discrimination or failure to accommodate under the
ADA, a plaintiff must allege facts showing that: “(1) he is a disabled person within 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 suffered
an otherwise adverse employment decision as a result of discrimination.” Taylor v.
Phoenixville School Dist., 184F.3d 296, 306 (3d Cir. 1999) (citing Gaul v. Lucent
Technologies, 134 F.3d 576 580 (3d Cir. 1998); see Hohider v. United Parcel Serv., Inc.,
574 F.3d 169, 186-87 (3d Cir. 2009) (internal quotation omitted). Here, it appears
undisputed that Plaintiff has sufficiently pled a disability and an adverse employment
consequence, thus satisfying the first and third prongs of the required showing. Therefore,
at the core of this motion is the definition of “qualified individual.”
The ADA defines a qualified individual as one “who, with or without reasonable
accommodations, can perform the essential functions of the employment position that such
individual holds or desires.” See 42 U.S.C. § 12111(8). As such, the designation of

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“qualified individual” is dependant on the allegedly aggrieved employee being able to
perform the essential functions of the job in question. An essential function is a function
“fundamental” to the position. 29 C.F.R. § 1630.2(n)(1). To determine whether or not a
function is fundamental, courts look to numerous factors, including, but not limited to:
(I) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for
the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
Kurek v. North Allegheny School Dist., 223 Fed. App’x 154, 157 (3d Cir. 2007) (citing 29
C.F.R. § 1630.2(n)(1)). At bottom, the question is whether an employee is able to show that
“he/she satisfies the requisite skill, experience, education, and other job-related
requirements of the employment position that such individual holds or desires.” Conneen
v. MBNA America Bank, N.A., 334 F.3d 318 (3d Cir. 2003).
Here, Plaintiff contends that she has sufficiently pled that she is a “qualified
individual.” Without direct reference, Plaintiff suggests that since “there were positions
available that [Defendant] could have provided to Plaintiff within her restrictions,” she must
be considered a “qualified individual” because she could perform the essential functions of
a job if provided an accommodation; namely a part-time work schedule.
Defendant disagrees noting that there were no other positions available that Plaintiff
could perform the essential function of with her restrictions. To illustrate that Plaintiff was

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factually incorrect in her pleading, Defendant first points to the CBA4 to establish the
essential functions of a prison employee’s job. As noted above, courts look to the terms of
a CBA to help determine whether a particular duty is an essential function of a given job.
Kurek, 233 Fed. App’x. at 157. In this case, the CBA is clear. It states that “a normal work
week is to consist of forty (40) hours for all bargaining unit employees including
Counselors.” (Doc. 11, Ex. B at 16). Further, the agreement notes that “[a] work day for a
regular full time employee is to consist of eight (8) consecutive hours” (id.) and that “[t]here
will be no split shifts” allowed. (Id. at 17). Citing this language from the CBA, Defendant
contends that since Plaintiff alleges that she was unable to work the hours as defined by
the CBA, she was unable to perform the “essential functions” of the job, and therefore her
reliance on the existence of part-time work at the prison to establish she is a “qualified
individual” is misplaced. This Court agrees.
Defendant persuasively cites to Clarke-Kurek v. North Allegheny School District to
suggest that terms contained within the CBA related to the number of hours to be worked
by employees establishes an essential function of a job. In Kurek, the District Court–later
affirmed by the Third Circuit–found that a teacher was not a “qualified individual” under the
ADA when she could not work a full 7-3/4-hour day as prescribed by a controlling CBA.
Clarke-Kurek v. North Allegheny School Dist., No. 04-0208, 2006 WL 1073158, * 6 (W.D.
Pa. Mar. 27, 2006), aff’d 233 Fed. App’x. 154 (3d Cir. 2007). In reaching its conclusion the
Kurek Court noted that “Plaintiff cannot seriously dispute that . . . working a 7-3/4-hour
workday is an essential function of the job of a teacher,” when it has been established in a

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Again, this document was necessarily relied upon by Plaintiff in her
Complaint, and was attached to Defendant’s Motion to Dismiss. Further,
the document is a public record. Thus, the document may be reviewed by
this court. See In Re Burlington Coat Factory Sec. Litig., 114 F.3d at
1426; Mayer, 605 F.3d at 230; Am. Corp. Soc., 424 Fed. App’x. at 86.
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formal writing provided to the Plaintiff.
This Court agrees that the express terms of a CBA establish the “essential functions”
of a particular job or set of jobs. Here, like in Kurek, a controlling CBA agreement exists,
and is necessarily relied upon by Plaintiff to assert that part-time positions were available
at the Prison. However, the agreement supports the contrary. The CBA expressly states the
hours employees are to maintain in order to work in Defendant’s prison. Thus, if the Plaintiff
was unable to work “a normal work week” consisting of five days of “eight consecutive
hours” totaling forty (40) hours with or without a reasonable accommodation, then Plaintiff
is not a qualified individual.
Plaintiff alleges no fact in her fourteen-paragraph Complaint to suggest that she
could work under these conditions. In fact, Plaintiff avers the opposite. The “Injury Report”
provided by Plaintiff and relied upon in the Complaint expressly states that Plaintiff is limited
to “part-time” work. Plaintiff even stated she could not perform on a “full-time basis” during
her testimony before the Unemployment Compensation Board of Review.5 Additionally, the
documents offered by Plaintiff to suggest her accommodation was denied states that
Plaintiff was seeking “modified or part-time work.” Again, no fact was pled that suggests that
Plaintiff would be able to perform the “essential functions” of her job as defined by the CBA.
As such, Plaintiff has not properly pled that she is a “qualified individual” under the ADA.
Further, it is well settled that “employers are not required to accommodate an
employee by removing an essential function” of the employee’s position. Skerski v. Time
Warner Cable Co., 257 F.3d 273, 285 n.4 (3d Cir. 2001); see Irving v. Chester Water
Authority, 439 Fed. App’x 125, 127 (3d Cir. 2011); Kessler v. AT&T, No. 13-CV-00207, 2015
WL 5598866, *6 (M.D. Pa. Sept. 22, 2015). As was discussed above, it was an essential

5

Plaintiff misrepresented the testimony provided in this hearing in her
complaint. (Doc. 1, ¶ 13).
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function of Plaintiff’s job to work an eight-hour shift five days each week. Moreover, as
specifically provided by the CBA: “there will be no split shifts allowed.” Thus, Plaintiff’s
request for an accommodation that would serve to reduce the amount of time she would
have to work each day is equivalent to requesting an accommodation to remove an
essential function of the job. This is impermissible.
Plaintiff’s claims for discrimination and failure to accommodate will be dismissed
because Plaintiff has failed to plead the prima facie case required under the ADA.
B. Plaintiff’s Retaliation Claim
In relevant part the ADA provides, regarding retaliation, that “no person shall
discriminate against any individual because such individual has opposed any act or practice
made unlawful by this Act or because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this Act.” 42
U.S.C. §12203(a). Thus, in order to properly plead a prima facie case of retaliation under
the ADA a Plaintiff must state: (1) a protected employee activity; (2) adverse action by the
employer either after or contemporaneous with the employee’s protected activity; and (3)
a causal connection between the employee’s protected activity and the employer’s adverse
action. See Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (citations
omitted).
To support her claim of retaliation, Plaintiff has pled the following: “Plaintiff was
retaliated against after requesting accommodations since Defendant continued to refuse
to allow Plaintiff back to work in a light duty capacity.” Additionally, Plaintiff has provided an
exhibit–referenced by Defendant–that shows on April 13, 2015 Plaintiff was informed that
she could not work at the prison until cleared to return to work without restriction.
Defendant believes this pleading is insufficient and the claim should be dismissed
for two reasons. First, Defendant contends that Plaintiff suffered the alleged adverse

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employment decision prior to requesting the accommodation. As pled, this is incorrect.
Plaintiff pled that she submitted a “return to work with restrictions note”–her basis for the
request of an accommodation–on or about April 13, 2015. Plaintiff also pled that the
adverse action suffered, being prevented from working with restriction, occurred on the
same day. Thus, Plaintiff has pled that she suffered an adverse impact contemporaneously
with, not prior to, the request for an accommodation. As such, Defendant’s first argument
fails to provide dismissal.
Second, Defendant contends that Plaintiff’s retaliation claim fails as a matter of law
because a retaliation claim may not be based solely on a theory of failure to accommodate.
The Third Circuit has noted that a “failure to accommodate theory . . . cannot be
characterized as a retaliation claim under the ADA. The claim is a direct discrimination claim
based on alleged failures to fulfill the affirmative duties prescribed by the ADA, not a claim
based on alleged actions prohibited by the ADA.” Solomon v. Sch. Dist. of Phila., 882 F.
Supp. 2d 766, 783 (E.D. Pa. 2012) (citing Pagonakis v. Express LLC, 315 Fed. App’x. 425,
431 (3d Cir. 2009)). District Courts routinely dismiss retaliation claims that simply
“repackage” claims that an employer failed to offer accommodations. See, e.g., Garner v.
Sch. Dist. of Phila., 63 F. Supp. 3d 483, 500 (E.D. Pa. 2014) (dismissing a retaliation claim
where Plaintiff’s claim was “nothing more than a repackaged statement of his underlying
claims that [his employer] failed to reasonably accommodate his disability.”); Solomon, 882
F. Supp. 2d at 783; Williams v. Phila. Hous. Auth., 230 F. Supp. 2d 631, 639 n.10 (E.D. Pa.
2002) (“Plaintiff's claim, to the extent that it is based upon the defendant's denial of his
request for a reasonable accommodation, is stated as a retaliation claim in form, but is, in
substance, a claim of failure to accommodate.”). Here, Plaintiff makes no averment to
provide any basis for the retalition claim other than that she was denied an accommodation
and was thereforein unable to return to work. Thus, she has not stated a claim separate

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and apart from the discrimination and failure to accommodate claims that this Court has
already addressed. Because a retaliation claim is not properly predicated on a theory of
failure to accommodate, Plaintiff’s claim alleging just that will be dismissed.
IV. Conclusion
Because Plaintiff has not properly pleaded that she is a qualified individual under the
ADA, and a retaliation claim can not be predicated on a failure to accommodate, Plaintiff’s
claims will be dismissed without prejudice. 6
An appropriate order follows.

September 25, 2017
Date

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/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

The Third Circuit has instructed that if a complaint is vulnerable to a
12(b)(6) dismissal, the district court must permit a curative amendment,
unless an amendment would be inequitable or futile. See Phillips v. Cty. of
Allegheny, 515 F.3d 224, 236 (3d Cir. 2008); Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Because Plaintif f could replead
the Complaint to provide alternative grounds to establish that she was a
“qualified individual” and/or retaliated against, this Court will grant Plaintiff
leave to amend.
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