Malusky v. Schuylkill County et al

Filing 29

MEMORANDUM (Order to follow as separate docket entry) re 15 MOTION to Dismiss for Failure to State a Claim filed by Maria Casey, 14 MOTION to Dismiss filed by Schuylkill County Signed by Honorable Malachy E Mannion on 8/28/2024. (gg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ANGELA MALUSKY,

:

Plaintiff

:
:

v.
SCHUYLKILL COUNTY and
MARIA CASEY,
Defendants

CIVIL ACTION NO. 3:24-CV-466

:

(JUDGE MANNION)

:
:

MEMORANDUM
Plaintiff Angela Malusky claims that her former employers, Defendant
Schuylkill County (the “County”) and Defendant Maria Casey (“Casey”),
violated her Fourteenth Amendment right to due process. She also claims
that Defendants discriminated and retaliated against her on the basis of
disability in violation of the Americans with Disabilities Act (the “ADA”).
Finally, she claims that Defendants failed to pay her wages in violation of the
Fair Labor Standards Act (the “FLSA”), Pennsylvania’s Wage Payment and
Collection Law (the “WPCL”), and the Pennsylvania Minimum Wage Act (the
“PMWA”). Defendants move to dismiss Plaintiff’s Amended Complaint (the
“Complaint”). (Doc. 14; Doc. 15).

I.

BACKGROUND
Because these are motions to dismiss, the court accepts the

Complaint’s factual allegations as true. Bruni v. City of Pittsburgh, 824 F.3d
353, 360 (3d Cir. 2016).
Plaintiff worked at the County’s Clerk of Court Office. (Doc. 13 ¶10).
As of 2022, she was in a Clerk III position, in which she earned $23.50 an
hour and typically worked 35 hours a week. (Id. ¶¶26, 215). When she
worked there, Plaintiff suffered from “mental impairments, including but not
limited to anxiety, depression, and high blood pressure.” (Id. ¶50).
In 2016, Defendant Casey started as Clerk of Courts, an elected
position. (Id. ¶24). Casey directly supervised Crista DiCasimirro, who directly
supervised Plaintiff. (Id. ¶32). Casey assigned “additional duties” to Plaintiff,
such as picking up dinners for Casey and delivering them to her home,
driving Casey around to deliver holiday meals to the needy, driving Casey to
and from work, packing gift baskets for Casey’s political supporters, and
driving Casey to political dinners. (Id. ¶57). Plaintiff did not volunteer for
these duties, but they were “commonplace” in the Clerk of Courts office
among many of the employees. (Id. ¶220–22). On average, Plaintiff
performed two to three additional duties a month, ranging in time from 15
minutes to 8 hours. (Id. ¶260). And some duties occurred outside standard
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work hours. (Id. ¶217). For instance, Plaintiff once had to drive Casey to
political dinners to help her collect signatures for her campaign for over six
hours after working her standard 35 hours that week. (Id. ¶218). But Plaintiff
was prohibited from entering the time spent performing these duties on her
time sheet. (Id. ¶225).
The additional duties “often intertwined” with Plaintiff’s Clerk III duties.
(Id. ¶262). For example, Plaintiff was once required to pick up Casey at her
home before work and drive her to a junkyard so that Casey could retrieve
items from her vehicle there. (Id. ¶263). She then had to leave work during
the day so that she could drive Casey home, and Casey required Plaintiff to
deliver her dinner after work. (Id. ¶¶265–65).
These additional duties caused Plaintiff’s impairments to intensify, so
she requested various medical leaves of absence. (Id. ¶59). In March 2022,
she informed Casey of her diagnosis of anxiety and depression, explained
that the additional duties contributed to the impairments, and requested that
her additional duties be eliminated. (Id. ¶¶60–61). But Casey ignored these
requests. (Id. ¶63). And “Defendants made it clear that the job description
written and distributed by Schuylkill County contained a clause allowing for
any other duties assigned.” (Id. ¶224).

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At a medical appointment in August 2021, her doctor called an
ambulance due to high blood pressure. (Id. ¶174). While waiting for the
ambulance, Plaintiff informed Defendants that she would not be returning to
work that day. (Id. ¶175). When she returned to work, Plaintiff “suffered
discriminatory comments from co-workers about her absence.” (Id. ¶176).
These comments were made in front of DiCasimirro. (Id. ¶177). Further,
“non-disabled employees similarly situated to Plaintiff who have requested
accommodations similar to those requested by Plaintiff,” such as intermittent
medical leaves, “were not terminated from employment.” (Id. ¶¶180, 187).
On July 16, 2022, Plaintiff tested positive for COVID-19. (Id. ¶64). The
CDC advised, and the County required, a five-day quarantine. (Id. ¶¶65–66).
So Plaintiff coordinated medical leave, (id. ¶67), which was approved by the
County’s human resource department. (Id. ¶68). But when Plaintiff returned
to work on July 22nd, (id. ¶71), Casey terminated Plaintiff and refused to
rehire her in another office. (Id. ¶¶71, 183).
Plaintiff’s termination notice, (Ex. B) (Doc. 13 at 59–60), which was
written by Casey, (Doc. 13 ¶114), listed several reasons for the discharge.
These included habitually showing up late, falsifying a time sheet, refusing
to work the service counter, leaving work without explanation, unexcused
absences, “abuse of the personal time policy,” mishandling court filings, and
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neglecting court filings and matters. (Id. at 59–60). These offenses ranged
from mid-2017 to mid-2022. (Id.). Plaintiff avers that many of these offenses
are false, misrepresentative, “pretextual,” or a result of the additional duties
assigned by Casey interrupting her Clerk III duties. (Id. ¶¶82-85).
As to the last point, for instance, in March 2022, Casey told Plaintiff to
take her home from work before the end of the work day. (Id. ¶86). Plaintiff
protested because she had not yet finished her Clerk III duties, but Casey
repeated the demand and told her not to worry about the Clerk III duties. (Id.
¶87–88). Plaintiff complied, (id. ¶89), but the following day, DiCasimirro
confronted her about the unexcused absence, (id. ¶90), and suspended
Plaintiff for three days though Plaintiff told her the reason she left. (Id. ¶91).
Additionally, when Plaintiff attempted to enter the time required to
perform the additional duties on her time sheet, DiCasimirro would remove
the time. (Id. ¶226). For instance, in June 2022, Plaintiff arrived to work 90
minutes late after performing one of her additional duties, (id. ¶274), and
when she reported these 90 minutes on her time sheet, (id. ¶275),
DiCasimirro accused her of falsifying her time. (Id. ¶276).
After giving notice of termination, Casey pressured Plaintiff to provide
a resignation letter in lieu of termination. (Doc. 13 ¶74), and Plaintiff did so
involuntarily, (Doc. 13 ¶75; Doc. 13 at 62 (Ex. C)). The letter cited her health
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as the reason for leaving employment. (Doc. 13 ¶76; Doc. 13 at 62). Plaintiff
also contacted County Human Resources to ask about filing a complaint of
discrimination and harassment based on her disability. (Id. ¶77). And since
the termination notice stated, “If you wish, you will be afforded a Loudermill
hearing,” (Doc. 13 at 60), Plaintiff informed the County that she wanted the
hearing, but Human Resources told her that she had surrendered her right
to a hearing. (Id. ¶117). Plaintiff was replaced by “an individual who is not
within Plaintiff’s protected class.” (Id. ¶186).

II.

LEGAL STANDARD
In response to a complaint, a party may move for dismissal for “failure

to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To survive dismissal, a complaint must make more than “conclusory or ‘barebones’ allegations,” and “‘threadbare recitals of the elements of the cause of
action, supported by mere conclusory statements, do not suffice.’” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). Instead, the complaint must “set out
‘sufficient factual matter’ to show that the claim is facially plausible.” Id.
(quoting Iqbal, 556 U.S. at 678).

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When considering the complaint, the court applies a “two-part
analysis.” Id. “First,” the court “must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.” Id. at 210–11.
“Second,” the court “must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a plausible claim to
relief.” Id. at 211. In determining the sufficiency of the facts alleged, the court
must “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. Cnty. of Allegheny, 515 F.3d 224,
233 (3d Cir. 2008).

III.

DISCUSSION
A. Count I: Fourteenth Amendment – Due Process of Law
Plaintiff claims that Defendants violated her Fourteenth Amendment

right to due process by terminating her without notice or the opportunity for
a hearing. (Doc. 24 at 13). The Fourteenth Amendment provides that a state
shall not “deprive any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV, § 1. “The first step in analyzing a due
process claim is to determine whether the ‘asserted individual interest … [is]
encompassed within the [F]ourteenth [A]mendment’s protection of life,
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liberty, or property.’” Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005)
(quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Plaintiff contends
that she had a property interest in her employment, and that Defendants
deprived her of this interest. (Doc. 24 at 14). Defendants argue that Plaintiff
did not have a property interest. (Doc. 16 at 11–13).
Plaintiff alleges that she “possessed a property interest in her Clerk III
position because she could only be terminated from her position for cause.”
(Doc. 13 ¶105). “[S]tate law determines whether … a property interest
exists.” Elmore, 399 F.3d at 282. Under Pennsylvania law, a “public
employee does not have any property interest in her employment within the
meaning of the Fourteenth Amendment because [she] serves solely at the
pleasure of her public employer, and can be dismissed for any legal reason
or for no reason at all.” Miller v. Clinton County, 544 F.3d 542, 552 (3d Cir.
2008). “[A] local government in Pennsylvania cannot provide its employees
with tenure status unless there exists express legislative authority to do so.”
Elmore, 399 F.3d at 282–83. So absent express legislative authority, public
employment is at-will and “[a]ny attempt by a municipality to alter an
employee’s status without enabling legislation … has no legal effect.” Id. at
282.

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Plaintiff does not allege that the County had express legislative
authority to provide her with a property interest. She argues that her property
right arose from a unilateral contract, (Doc. 20 at 15), since (1) her
termination “allege[d] specific acts as the causal basis for termination,” and
(2) “Casey held out to Plaintiff that she could only be terminated for cause
by stating, ‘If you wish, you will be afforded a Loudermill1 hearing.’” (Id.
¶¶106–107). She also attempts to resist Elmore by citing the Pennsylvania
Superior Court’s holding that “the communication to employees of certain
rights, policies and procedures may constitute an offer of an employment
contract with those terms.” Hicks v. Glob. Data Consultants, LLC, 288 A.3d
875, 883 (Pa. Super. Ct. 2022) (quoting Evans v. Cap. Blue Cross, 269 A.3d
569, 575 (Pa. Super. Ct. 2022). (Doc. 20 at 15).
But Hicks does not contradict Elmore, as Plaintiff suggests, for that
case involved a private employer, and did not involve a due process claim.
Id. at 878–79, 881. Absent legislative authority, Defendants could not have
given Plaintiff protected status. So Plaintiff’s allegation that she could only
be terminated for cause is unavailing.
The term “Loudermill hearing” refers to Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532 (1985), where the Court held that certain public
sector employees can have a property interest in their employment, and in
such cases, employees who receive a notice of termination are entitled to a
hearing to present their side of the events resulting in the termination.
1

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As Plaintiff does not allege facts demonstrating that her employment
was not at-will, she has not plead that she had a property interest in her
employment. So she has stated no Fourteenth Amendment due process
claim. Count I will therefore be dismissed.
B. Count II: Disability
Accommodate

Discrimination

–

Failure

to

Plaintiff next claims that the County violated the ADA by refusing her
request for accommodations. (Doc. 13 ¶¶122–140). Under the ADA, “no
covered entity shall discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, or privileges of
employment.” 42 U.S.C. § 12112(a). A “qualified individual with a disability”
is someone “who, with or without reasonable accommodation, can perform
the essential functions of the employment position that individual holds or
desires.” 42 U.S.C. § 12111(8).
Discrimination occurs when an employer does “not mak[e] reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual … unless [the employer] can demonstrate that the
accommodation would impose an undue hardship on the operation of the
business.” 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations
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include

“job

restructuring,

part-time

or

modified

work

schedules,

reassignment to a vacant position, acquisition or modification of equipment
or devices, … and other similar accommodations for individuals with
disabilities.” 42 U.S.C. § 12111(9).
“A plaintiff bringing an ADA failure-to-accommodate claim must
establish that: ‘(1) [s]he was disabled and [her] employer knew about it; (2)
[s]he requested an accommodation or assistance; (3) [her] employer did not
make a good faith effort to assist; and (4) [she] could have been reasonably
accommodated.” Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir.
2017) (quoting Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240,
246 (3d Cir. 2006)).
Plaintiff asserts that the County violated the ADA “by refusing to grant
and/or implement Plaintiff’s requests for reasonable accommodations in the
form of eliminating the Additional Duties” assigned by Casey, (Doc. 13 ¶133),
and by “refus[ing] to engage in the interactive process to explore reasonable
accommodations that would have permitted Plaintiff to perform the essential
functions of her job.” (Id. ¶134). The County contends that the additional
duties were essential conditions of her employment. (Doc. 19 at 16–19). It
also submits that the proposed accommodation—eliminating the additional
duties—was not reasonable. (Id. at 19–21). Finally, it asserts that it provided
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a reasonable accommodation—medical leave—in place of eliminating the
additional duties. (Id. at 21–22).
The court addresses the County’s arguments below.
a. The County’s argument that the additional duties were
essential functions of the Clerk III position
A “reasonable accommodation” may include “job restructuring.” 42
U.S.C. § 12111(9). “An employer may be required to restructure a job by
reallocating or redistributing nonessential, marginal job functions; however,
the employer is not required to reallocate essential functions.” 29 C.F.R. pt.
1630, app. 1630.2(o). In other words, “employers are not required to
accommodate an employee by removing an essential function or
restructuring a job as to avoid it, but, rather, they are to provide an
accommodation so as to enable the employee to perform such a function.
Skerski v. Time Warner Cable Co., 257 F.3d 273, 285 n.4 (3d Cir. 2001).
“The term essential functions means the fundamental job duties of the
employment position the individual with a disability holds or desires,” but not
“the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). “The
function may be essential because the reason the position exists is to
perform that function,” because “of the limited number of employees
available among whom the performance of that job function can be
distributed,” or because “[t]he function may be highly specialized so that the
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incumbent in the position is hired for his or her expertise or ability to perform
the particular function.” 29 C.F.R. § 1630.2(n)(2). Further, “[e]vidence of
whether a particular function is essential includes, but is not limited to”:
(i) [t]he employer’s judgment as to which functions are essential; (ii)
[w]ritten job descriptions prepared before advertising or interviewing
applicants for the jobs; (iii) [t]he amount of time spent on the job
performing the function; (iv) [t]he consequences of not requiring the
incumbent to perform the function; (v) [t]he terms of a collective
bargaining agreement; (vi) [t]he work experience of past incumbents
on the job; and/or (iv) [t]he current work experience of incumbents in
similar jobs.
29 C.F.R. § 1630(n)(2)(3). This list of “factors for consideration” is “nonexhaustive.” Skerski, 257 F.3d at 279.
The County argues that the additional duties were not essential
functions. It asserts that: “Based on Plaintiff’s allegations, there is no
difference between the ‘essential duties’ that she alleges she is able to
perform, and the ‘additional duties’ that Casey requested her to perform.”
(Doc. 19 at 18). The County points out Plaintiff’s allegations that many
employees in the Clerk office were also required to perform these duties,
such that a reasonable employee would believe that they were “the types of
services a clerk was employed to perform,” and that Plaintiff’s supervisors
indicated to her that the additional duties were part of her job description.
(Id.). Plaintiff argues that the additional duties were not essential, because
the County controlled the essential duties while Casey controlled the
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additional duties, and because the additional duties were often performed
outside work hours. (Doc. 24 at 18).
The court concludes that the additional duties, as alleged, were not
essential. Plaintiff was not compensated for performing the additional duties
like she was for the other functions. Indeed, she was disciplined for
performing them in place of other functions. This distinction suggests that the
additional duties were not essential, but were instead of a lower priority than
Plaintiff’s clerk duties. Further, several considerations listed in the
regulations—that performance of the additional duties could be distributed to
more than just a limited number of employees, and that the additional duties
did not require specialized expertise that Plaintiff was specifically hired to
provide—suggest that the additional duties were not essential functions.
Finally, the additional duties were not specified in the job description, but
were instead encompassed by a catch-all clause.
Plaintiff was not compensated for the extra hours she worked on
additional duties, (Doc. 24 ¶219), and she was prohibited from entering those
hours on her time sheet. (Id. ¶225). When she attempted to enter the time,
DiCasimirro would remove it. (Id. ¶226). If the additional duties were
“essential” to Plaintiff’s position, 29 C.F.R. § 1630.2(n)(1), she would have
been compensated for them just as she was for her other duties. Plaintiff
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also faced disciplinary action completing the additional duties in place of the
essential functions. For instance, in March 2022, Casey told Plaintiff to take
her home before the end of the work day. (Id. ¶86). Plaintiff protested
because she had not yet finished her Clerk III duties, but Casey repeated the
demand and told her not to worry. (Id. ¶87–88). Plaintiff complied, (id. ¶89),
but on the following day, DiCasimirro confronted her about the unexcused
absence, (Id. ¶90), and suspended Plaintiff for three days even after Plaintiff
told her the reason she left. (Id. ¶91). Presumably, if the additional duties
were “essential” to the job, 29 C.F.R. § 1630.2(n)(1), Plaintiff would not have
been disciplined for performing them when one of her supervisors instructed
her to do so.
Application of the regulations also suggests that the additional duties
were not essential. Plaintiff alleges that there was not a “limited number of
employees available among whom the performance of the [additional duties]
could be distributed,” 29 C.F.R. § 1630.2(n)(2), because “[m]any of the
employees in the clerk of courts office were required to perform Additional
Duties for Casey from time to time,” (Doc. 13 ¶220), and “[b]eing asked to
perform Additional Duties was commonplace in the Clerk of Courts office.”
(Id. ¶221). These allegations indicate that the additional duties could have
and already were distributed among several other employees. Plaintiff also
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alleges that the additional duties were not “highly specialized” such that
Plaintiff was “hired for her expertise or ability to perform” them, 29 C.F.R. §
1630.2(n)(2), which allegation is supported by the nature of the alleged
additional duties: they consisted of everyday tasks like driving Casey to and
from work and packing gift baskets. (Doc. 13 ¶57).
On the other hand, weight is afforded to “[t]he employer’s judgment as
to which functions are essential” as well as to “[w]ritten job descriptions
prepared before advertising or interviewing applicants for the jobs.” 29
C.F.R. § 1630.2(n)(3). As Plaintiff alleges, “Defendants made it clear that the
job description written and distributed by Schuylkill County contained a
clause allowing for any other duties assigned.” (Doc. 13 ¶224). And of
course, Defendant now submits that these duties were essential. (Doc. 19 at
18). With regard to the job description, though, Defendant does not contradict
Plaintiff’s allegation that the additional duties were asserted to be covered
by the “clause allowing for any other duties assigned.” (Doc. 19 at 18 (citing
Doc. 13 ¶224)). This catch-all phrase gives no indication that the specific
additional duties challenged here were essential, so this factor does not
weigh in the County’s favor.
On balance, these considerations weigh in favor of concluding that the
additional duties, as alleged, were not essential functions.
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b. The County’s comparison of Plaintiff’s requested
accommodation to the unreasonable accommodation
request in Gaul
The County also analogizes this case to Gaul v. Lucent Techs., Inc.,
where the Third Circuit found that a plaintiff’s request “to be transferred away
from individuals causing him prolonged and inordinate stress was
unreasonable as a matter of law under the ADA.” 134 F.3d 576, 579 (3d Cir.
1998). It reasoned that: (1) “compliance” with the accommodation
“depend[ed] entirely on Gaul’s stress level at any time”; (2) “the term
‘prolonged and inordinate stress’ [was] not only subject to constant change,
it [was] also subject to tremendous abuse” because “the only certainty for
[the employer] [was] its obligation to transfer Gaul to another department
whenever he [became] ‘stressed out’”; (3) the administrative burdens posed
“[required] far too much oversight and [were] simply not required under law”;
and (4) “Gaul [was] essentially asking this court to establish the conditions
of his employment.” Id. at 580–81.
These

considerations

do

not

apply

to

Plaintiff’s

requested

accommodation. Plaintiff simply requested to be relieved of additional duties.
This request does not, like that in Gaul, depend on her stress level or impose
a constantly changing standard. Plus, there is little indication that Plaintiff’s
requested accommodation would pose an undue administrative burden.
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Neither did Plaintiff’s request amount to asking to establish the conditions of
her employment. See id. at 581 (quoting Weiler v. Household Fin. Corp.,
1010 F.3d 519, 526 (7th Cir. 1996)). This type of accommodation would not
require “interfer[ing] with personnel decisions within an organizational
hierarchy,” as Gaul’s did. Id. (quoting Wernick v. Federal Reserve Bank of
N.Y., 91 F.3d 379, 384 (2d Cir. 1996)).
c. The County’s argument that it offered medical leave as an
alternative accommodation to eliminating the additional
duties
The County next observes that “an employee cannot make his
employer provide a specific accommodation if another reasonable
accommodation is instead provided.” Solomon v. Sch. Dist. of Phila., 882 F.
Supp. 2d 766, 779 (E.D. Pa. 2012) (citing Hankins v. The Gap, Inc., 84 F.3d
797, 800–01 (6th Cir. 1996)). In other words, the employer may “choose
between effective accommodations, and may choose the less expensive
accommodation or the accommodation that is easier for it to provide.”
Solomon, 882 F.Supp.2d at 779 (citing 29 C.F.R. pt. 1630, app. § 1630.9(a)).
“The employer must show … that the proposed accommodation was not
reasonable or would have caused it undue hardship, or that the employer
proposed a reasonable accommodation that the plaintiff rejected.” Id.

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Although the County posits that Plaintiff’s medical leave constitutes a
reasonable alternative accommodation, (Doc. 19 at 22), Plaintiff’s allegation
is that she requested duty-elimination in addition to the medical leave, not
that she rejected medical leave in favor of eliminating the additional duties.
(Doc. 13 ¶61), suggesting that medical leave alone was insufficient to allow
her to perform her essential duties. So the County’s argument regarding
medical leave is unavailing.
The court concludes that Plaintiff’s requested accommodation, as
alleged, was reasonable.
***
As a last effort to dismiss Plaintiff’s Count II, the County argues that
Count II should be dismissed as redundant. (Doc. 19 at 24). It contends that
Count II and Count III both arise out of the same allegations, and “a claim
that an employer failed to accommodate an employee’s disability is best
viewed not as an independent claim under the ADA, but as a theory that may
support a discrimination claim, with disparate treatment representing another
possible theory.” (Id. (citing Solomon, 882 F.Supp.2d at 776)).
Even assuming that redundancy were an appropriate basis for
dismissal under Rule 12(b)(6), cf. Crighton v. Schuylkill Cnty., 882 F. Supp
411, 415 (E.D. Pa. 1995) (“Motions to dismiss pursuant to Rule 12(b)(6) test
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the validity of the complaint. A claim that is redundant is not necessarily
invalid.”), the court is not convinced that Counts II and III are redundant.
Plaintiff alleges facts to support Count II that are separate than the facts she
alleges to support Count III. Count II is based on the allegation that
Defendant unlawfully refused to relieve Plaintiff of the additional duties, while
Count III is based on the allegation that Defendant terminated Plaintiff
because of her disability. Accordingly, Count II will not be dismissed on the
basis of redundancy, either.
In sum, the court concludes that the accommodation requested by
Plaintiff, as alleged, was reasonable. Plaintiff has also alleged that
Defendants did not make a good faith effort to assist her. (See Doc. 13
¶¶131–35). And Defendants do not dispute that Plaintiff has alleged that she
was disabled and that they knew about her disability. So she has stated a
failure-to-accommodate claim under the ADA, and Count II will not be
dismissed.
C.

Count III: Disability – Discrimination

To establish a prima facie case of disability discrimination under the
ADA, a plaintiff must show that: (1) “[s]he is a disabled person within the
meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential
functions of the job, with or without reasonable accommodations by the
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employer; (3) [s]he has suffered an otherwise adverse employment decision
as a result of discrimination.” Gaul, 134 F.3d at 580.
As to the third element, Plaintiff relies on conclusory allegations of
discrimination. (Doc. 24 at 20–21 (citing Doc. 13 ¶¶158, 160, 183, 280, 281)).
Although she has alleged that she suffered an adverse employment action—
her termination, (Doc. 13 ¶¶91–93)—Plaintiff has not made factual
allegations suggesting that this action was taken as a result of discrimination.
Her references to the County’s “discrimination” or description of her
termination as “on account of her Disability,” (id. ¶¶158, 160), do nothing to
make plausible an inference that the County actually acted on the basis of
disability. Neither does her allegation that the County “used [Plaintiff’s]
absences to justify” the adverse actions suggest that these actions were
taken as a result of Plaintiff’s disability.
Plaintiff also alleges that she was terminated because “Defendant
knew or suspected that the seriousness of [her disability] might require future
intermittent medical leaves of absence,” and so the County “terminated [her]
employment rather than accommodate future foreseeable requests for
accommodations with intermittent medical leaves.” (Doc. 13 ¶152). But these
are just speculations unsupported by factual allegations. Plaintiff’s other
allegations of discrimination are similarly conclusory. For instance, she
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alleges that Defendants’ bases for terminating her were “a pretext for
unlawful discrimination,” (id. ¶154), without offering supporting factual
allegations.
And although Plaintiff alleges that she faced “discriminatory
comments” from her co-workers, (id. ¶176), she does not allege that these
co-workers played a role in the decision to terminate her. She has not made
factual allegations plausibly suggesting that the County took any adverse
employment action “as a result of” discrimination. Gaul, 134 F.3d at 580. So
Plaintiff has failed to state a claim for disability discrimination in connection
with her termination, and Count III will be dismissed.
D. Count IV: ADA Retaliation
The County does not move to dismiss Count IV. (Doc. 14 ¶6). So Count
IV will not be dismissed.
E. Count V: Failure to Pay Wages – FLSA (Counts V and VI)
Plaintiff next claims that Defendants violated the FLSA by failing to pay
her minimum or overtime wages. (Doc. 13 ¶¶235, 238, 259).
First, the court agrees with Defendants that Plaintiff has stated no
FLSA minimum wage claim. (Doc. 16 at 16–17; Doc. 19 at 27). The Act
mandates that employees be paid a wage of $7.25 an hour. 29 U.S.C.
§206(a)(1). To state a claim under this provision, “a plaintiff must allege that
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his/her average hourly wage falls below the federal minimum wage.” Nardelli
v. Lamparski, No. 2-20-CV-1723, 2023 WL 3901299, at *3 (W.D. Pa. June
8, 2023). So “pure gap time claims”—claims for unpaid non-overtime hours
by employees whose average hourly rate exceeds the minimum wage—“are
not cognizable under the FLSA.” Davis v. Abington Memorial Hosp., 765 F.3d
236, 244 (3d Cir. 2014).
Plaintiff alleges that she was paid $23.50 an hour and “typically worked
35 hours a week.” (Doc. 13 ¶215). She does not allege that her average
wage for any week fell below $7.25, and her complaint’s allegations do not
make such an inference plausible. So she has failed to state a claim for
violation of the FLSA’s minimum wage provision. Plaintiff appears to
concede this much. (Doc. 24 at 24).
Second, Defendants contend that Plaintiff has not made sufficient
factual allegations to state an FLSA overtime claim. (Doc. 16 at 14–16; Doc.
19 at 27). Where an employee works a workweek longer than 40 hours, she
must be compensated “at a rate not less than one and one-half times the
regular rate at which [s]he is employed.” 29 U.S.C. §207(a).
“[T]o state a plausible FLSA overtime claim, a plaintiff must sufficiently
allege forty hours of work in a given workweek as well as some
uncompensated time in excess of the forty hours.” Davis, 765 F.3d at 241–
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42 (quoting Lundy v. Catholic Health System of Long Island Inc., 711 F.3d
106, 114 (2d Cir. 2013)). This pleading standard does not require that a
plaintiff “identify the exact dates and times that she worked overtime”; rather,
a “claim that she ‘typically’ worked forty hours per week, worked extra hours
during such a forty-hour week, and was not compensated for extra hours
beyond forty hours … she worked during one or more of those forty-hour
weeks, would suffice.” Id. at 243.
In support of her overtime claim, Plaintiff points to her allegation that
she “drove Casey to political dinners and help[ed] her collect signatures for
her campaign for over six hours after working 35 hours that week.” (Doc. 13
¶218; Doc. 20 at 17; Doc. 24 at 24). Defendants acknowledge that Plaintiff
has alleged one workweek in which she worked 41 hours and was not
compensated for the overtime hour. (Doc. 16 at 16; Doc. 19 at 25, 27). Under
Davis, that is enough. See 765 F.3d at 243.
Casey also raises a statute of limitations defense. (Doc. 16 at 16). An
FLSA overtime claim must be brought “within two years after the cause of
action accrued,” unless it arose out of a “willful violation,” in which case it
must be brought within three years. 29 U.S.C. §255(a). Because “Casey last
ran for Clerk of Courts in 2019,” she submits, and Plaintiff’s action was
commenced in 2024, an FLSA claim is outside the statute of limitations. (Doc
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16 at 16). Plaintiff does not respond to this argument in her brief in opposition
to Casey’s motion. (Doc. 20 at 17).
A statute of limitations defense may “be raised by a motion under Rule
12(b)(6), but only 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.”
LabMD Inc. v. Boback, 47 F.4th 164, 179 n.9 (3d Cir. 2022) (quoting
Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002)). “If the bar is not
apparent on the face of the complaint, then it may not afford the basis for a
dismissal of the complaint under Rule 12(b)(6).” Id. (quoting Robinson, 313
F.3d at 135).
The statute of limitations bar is not apparent on the face of Plaintiff’s
complaint, because the Complaint does not indicate when Plaintiff’s unpaid
overtime occurred or when Casey last campaigned for Clerk of Courts. So
Casey’s statute of limitations defense may not afford the basis for dismissal
of Plaintiff’s FLSA claim under Rule 12(b)(6). Count V will therefore not be
dismissed at this time.
Third, Plaintiff in County VI alternatively brings an FLSA minimum
wage claim against Casey individually. (Doc. 13 ¶¶241–68). This claim is
based on 29 U.S.C. §206(f), which requires the payment of minimum wages
to those who are “employed in domestic services in a household.” (Doc. 13
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¶246). “Domestic service employment means services of a household nature
performed by an employee in or about a private home (permanent or
temporary).” 29 C.F.R. §552.3; Madison v. Res. for Hum. Dev., Inc., 233 F.3d
175, 181 (3d Cir. 2000) (“We agree with the District Court’s reliance on 29
C.F.R. §552.3 to determine the meaning of ‘domestic service.’”).
In opposition to Casey’s motion to dismiss Count VI, Plaintiff relies on
her allegations that she acted as a “chauffeur” and performed other tasks “of
a household nature” for Casey, such as packing donation baskets in
connection with campaign events. (Doc. 20 at 18 (citing Doc. 13 ¶¶57, 249–
50, 263–65, 332)). Plaintiff asserts that chauffeur work is “specifically listed
in 29 U.S.C. §206(f),” (id.); it is not. But it is listed in a regulation defining
“domestic service employment.” 29 C.F.R. §552.3.
Again, section 206(f) applies to “domestic service in a household.” 29
U.S.C. §206(f). And the regulations limit “domestic service employment” to
those services “of a household nature” which are performed “in or about a
private home (permanent or temporary).” 29 C.F.R. §552.3.
Casey argues that Plaintiff “does not allege that she performed
services in or about Casey’s home or in a domestic service capacity.” (Doc.
16 at 19). There is no allegation that Plaintiff performed services in Casey’s
home. But there are allegations that she was required to “pick[] up dinners
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for Casey after work hours and deliver[] [them] to her home,” “pick[] Casey
up from her home to take her to work,” and “tak[e] Casey home from work.”
(Doc. 13 ¶57).
Among the illustrative examples of “domestic services employment,”
29 U.S.C. §552.3 includes “services performed by employees such as …
chauffeurs of automobiles for family use.” Casey urges the court to ignore
the “chauffeur” label used by Plaintiff, and instead recognize that the alleged
context of Plaintiff’s driving duties was “transportation to or from work, and
political or campaign-related activities.” (Doc. 16 at 18).
Plaintiff’s allegations do not match §552.3’s example. The alleged
“chauffeur” duties here—food delivery and transportation to and from work—
do not constitute services for “family use” or “services of a household nature.”
See 29 U.S.C. §552.3. These types of services are not particular to families
or households but are instead commonly performed by independent
contractors unconnected to, and outside of, individual households. Neither
is packing donation baskets work of a household nature.
The court concludes that Plaintiff has not alleged that she was
employed by Casey “in domestic service in a household.” 29 U.S.C.
§206(f)(1). Count VI, which is based on §206(f), (Doc 13 ¶246), will therefore
be dismissed.
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F. Count VII: Retaliation – FLSA
Plaintiff also brings a claim of retaliation under the FLSA. (Doc. 1
¶¶269–87). The FLSA makes it unlawful “to discharge or in any other manner
discriminate against an employee because such employee has filed any
complaint or instituted or caused to be instituted any proceeding under or
related to [Chapter 8 of Title 29].” 29 U.S.C. §215(a)(4). An oral complaint
may suffice for purposes of this provision, Kasten v. Saint Gobain
Performance Plastics Corp., 563 U.S. 1, 17 (2011), but any “complaint must
be sufficiently clear and detailed for a reasonable employer to understand it,
in light of both content and context, as an assertion of rights protected by the
statute and a call for their protection.” Id. at 14.
Defendants argue that Plaintiff has not alleged that she engaged in
protected activity under the FLSA. (Doc. 16 at 20–22; Doc. 19 at 29). Plaintiff
relies on her allegations that she “attempted to obtain payment for the
Additional Duties she performed by reporting this time on her Schuylkill time
sheet” and “[l]ater, … filed an oral complaint to Dicasimirro after DiCasimirro
accused Plaintiff of falsifying her timesheet.” (Doc. 13 ¶¶275–76). She
alleges that her oral complaint “constitutes protected activity under the
FLSA.” (Id. ¶279).

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Plaintiff’s allegation of an “oral complaint” alone cannot amount to a
protected activity, because it does not contain any indication that the
complaint was about an asserted violation of the FLSA. And read in context,
the thrust of this alleged complaint was that Plaintiff should have been paid
for the time spent performing the additional duties. But the FLSA only
guarantees a minimum wage and time-and-a-half for overtime hours. A
complaint that certain hours went unpaid does not itself constitute an FLSA
claim unless it is also asserted that the employee’s average wage fell below
the minimum wage or that she worked overtime hours without time-and-ahalf pay. See Davis, 765 F.3d at 244. So Plaintiff’s factual allegations
regarding her oral complaint do not make plausible an inference that such
complaint would reasonably have been understood as an FLSA complaint.
She has therefore not alleged that she engaged in protected activity.
Accordingly, Count VII will be dismissed.
G. Count VIII: Failure to Pay Wages – WPCL
Plaintiff next brings a claim under the Pennsylvania Wage Payment
and Collection Law, 43 Pa. Stat. §§260.1–260.45. (Doc. 13 ¶¶288–320). The
WPCL provides that “[e]very employer shall pay all wages, other than fringe
benefits and wage supplements, due to his employees on regular paydays
designated in advance by the employer.” 43 Pa. Stat. §260.3(a). “Employer,”
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as used in the WPCL, “[i]ncludes every person, firm, partnership,
association, corporation, receiver or other officer of a court of this
Commonwealth and any agent or officer of any of the above-mentioned
classes employing any person in this Commonwealth.” §260.2a.
Defendants argue that the WPCL does not apply to them: the County
because its definition of employer “does not include municipal corporations.”
(Doc. 19 at 30), and Casey because the definition “does not include elected
officials.” (Doc. 16 at 23).
As the parties point out, (Doc. 24 at 26–28; Doc. 19 at 30; Doc. 28 at
14–16), there is some division as to whether the WPCL’s definition of
“employer” includes municipal corporations. Compare Paparo v. Borough of
Yeadon, No. 22-841, 2024 WL 406753, at **11–12 (E.D. Pa. Feb. 2, 2024),
with Carstetter v. Adams Cnty. Transit Auth., No. 1:06-cv-1993, 2008 WL
2704596, at *14 (M.D. Pa. July 8, 2008); Porter ex rel. Philipsburg-Osceola
Educ. Ass’n v. Philipsburg-Osceola Sch. Dist., 633 A.2d 220, 223 (Pa.
Commw. Ct. 1993); and Huffman v. Borough of Millvale, 591 A.2d 1137,
1139 (Pa. Commw. Ct. 1991). But the County is not a municipal corporation.
Chester Cnty. v. Phila. Elec. Co., 218 A.2d 331, 425 (Pa. 1966) (“The County
is merely a political subdivision of the Commonwealth; not a municipal

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corporation.”). So the inclusion of “corporation[s]” in the definition of
“employer” does not cover the County.
Nor, for that matter, does the inclusion of “every person.” The word
“person” used in a Pennsylvania statute enacted after 1937 “includes … a
government entity (other than the Commonwealth),” “unless the context
clearly indicates otherwise.” 1 Pa. Cons. Stat. §1991. Here, the statute
includes “every person,” but it also specifically includes “officer[s] of a court
of this Commonwealth.” 43 Pa. Stat. §260.3a.

The statute’s specific

inclusion of a particular governmental entity makes clear that the General
Assembly did not intend to also include all other governmental entities within
the statute’s use of the word “person.” Cf. Morrow v. Cnty. of Montgomery,
Pa., No. 13-1032, 2014 WL 348625, at **2–3 (E.D. Pa. Jan. 31, 2014) (“While
no court has directly ruled on the applicability of the [Pennsylvania Minimum
Wage Act] to government entities, decisions on [the] analogous [WPCL]
make clear that where the legislature has omitted government entities from
coverage in the language of the statute, courts should not read the statute to
include these entities.” (first citing Phillipsburg-Osceola, 633 A.2d at 223, and
then citing Huffman, 591 A.2d at 1138–39)); see also Mimi Investors, LLC v.
Tufano, 297 A.3d 1272, 1286 n.21 (Pa. 2023) (“[U]nder the doctrine of
expression unius est exclusion alterius, the inclusion of a specific matter in
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a statute implies the exclusion of other matters.”). The court therefore
concludes that the WPCL does not cover the County, and so Plaintiff has
stated no WPCL claim against the County.
That leaves Plaintiff’s WPCL claim against Casey. Plaintiff has alleged
that Casey was the Clerk of Courts. (Doc. 13 ¶24). “The office of the clerk of
the courts shall have the power and duty to … [e]xercise the authority of the
clerk of the courts as an officer of the court.” 42 Pa. Cons. Stat. §2757(4).
And term “employer,” as used in the WPCL, includes “every … officer of a
court of this Commonwealth,” 43 Pa. Stat. §260.2a, so the WPCL applies to
Casey.
Still, “[t]he WPCL does not create a right to compensation; it provides
a statutory remedy when the employer breaches a contractual obligation to
pay earned wages.” Oxner v. Cliveden Nursing & Rehab. Ctr., 132 F. Supp.
3d 645, 649 (E.D. Pa. 2015) (citing De Asencio v. Tyson Foods, Inc., 342
F.3d 301, 309 (3d Cir. 2003)). “Where an employee does not work under a
written employment contract or collective bargaining agreement, the
employee will have to establish the formation of an implied oral contract to
recover under the WPCL.” Id. (citing De Asencio, 342 F.3d at 309–10).

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Casey argues that Plaintiff has not alleged the existence of a contract
between Casey and Plaintiff. (Doc. 16 at 23–25). Plaintiff asserts that she
has alleged the existence of an implied contract. (Doc. 20 at 20–21).
The court assesses Plaintiff’s assertion of an implied contract against
the following standard:
A contract, implied in fact, is an actual contract which arises
where the parties agree upon the obligations to be incurred, but
their intention, instead of being expressed in words, is inferred
from their acts in the light of the surrounding circumstances. An
implied contract is an agreement which legitimately can be
inferred from the intention of the parties as evidenced by the
circumstances and the ordinary course of dealing and the
common understanding of men.
Generally, there is an implication of a promise to pay for
valuable services rendered with the knowledge and approval of
the recipient, in the absence of a showing to the contrary. A
promise to pay the reasonable value of the service is implied
where one performs for another, with the other’s knowledge, a
useful service of a character that is usually charged for, and the
latter expresses no dissent or avails himself of the service. A
promise to pay for services can, however, only be implied when
they are rendered in such circumstances as authorized the party
performing to entertain a reasonable expectation of their
payment by the party benefited. The service or other benefit must
not be given as a gratuity or without expectation of payment, and
the person benefited must do something from which his promise
to pay may be fairly inferred. When a person requests another to
perform services, it is ordinarily inferred that he intends to pay for
them, unless the circumstances indicate otherwise. However,
where the circumstances evidence that one’s work effort has
been voluntarily given to another, an intention to pay therefor
cannot be inferred.

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Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 668–
69 (Pa. Super. Ct. 2014) (internal quotations and citations omitted).
The court concludes that Plaintiff has set out factual allegations from
which the existence of an implied contract between her and Casey can
reasonably be inferred. She has alleged that she was employed by the
County in the Clerk of Courts office, that Casey supervised DiCasimirro, who
supervised Plaintiff, and that Casey assigned Plaintiff duties such as driving
Casey to and from work and delivering meals. (Id. ¶¶ 25, 31–32, 57). These
are useful services of the character usually charged for. And the
circumstances alleged—assignment of tasks by a supervisor in an
employment context—do not indicate that these services were provided
voluntarily. Plus, since Casey is alleged to have assigned them, it can also
be inferred that she had knowledge of these services and availed herself of
them. Though Plaintiff would likely have expected the County to compensate
her, the nature of these services could also support an expectation that, if
the County did not compensate her for them, Casey would.
Plaintiff has further alleged that she was not permitted to enter the time
spent performing these services on her timesheet, (id. ¶¶225–26), which
allegation allows the inference that she was not paid for these services.
Based on these allegations, Plaintiff has stated a plausible claim against
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Casey that Casey, as her employer, failed to pay her wages due, in violation
of the WPCL. Count VIII will therefore be dismissed as against the County
but not dismissed as against Casey.
H. Count IX: Failure to Pay Wages: PMWA
Lastly, Plaintiff claims that Casey violated the Pennsylvania Minimum
Wage Act, 43 Pa. Stat. §§333.101–333.115, (Doc. 13 ¶¶321–36), “by failing
to properly pay Plaintiff for all hours worked.” (Id. ¶329).
The PMWA provides that “[e]very employer shall pay to each of his or
her employes for all hours worked” a specified minimum wage. 43 Pa. Stat.
§333.104. An “employer” under the Act “includes any individual, partnership,
association, corporation, business trust, or any person or group of persons
acting, directly or indirectly, in the interest of an employer in relation to any
employe.” §333.103(g).
Casey argues that she is not an employer because “[t]he definition of
an employer under the PMWA does not include an elected official or row
officer.” (Doc. 16 at 25). Plaintiff contends that her allegation is that “Casey,
as an individual, hired Plaintiff to work a second job.” (Doc. 20 at 23).
As discussed supra Section III.G, Plaintiff has made factual allegations
from which an implied employment contract between her and Casey can be
inferred. While the PMWA does not apply to political subdivisions, see
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McKinney v. Chester Cnty., No. 20-1756, 2021 WL 409975, at *5 (E.D. Pa.
Feb. 5, 2021); Morrow, 2014 WL 348625, at *3, Plaintiff argues that Casey
employed her as an individual. (Doc. 20 at 23). Because the services alleged,
such as driving Casey to or from her home or delivering meals, were of a
partly personal nature, and based on the allegation that Plaintiff was not
permitted by the County to record her time spent performing these services,
it could be inferred (alternatively) that Casey employed Plaintiff as an
individual, rather than as Clerk of Courts. And Plaintiff has alleged that she
was not paid at all for the services she performed for Casey. So she has
stated a plausible claim against Casey for violation of the PMWA. Count IX
will therefore not be dismissed.

IV.

CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss will be

granted in part and denied in part. Counts I, III, VI, and VII will be dismissed.
Count VIII will be dismissed as to the County. An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: August 28, 2024
23-245-01

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