Saleski-Shingara v. VNA Health Systems et al

Filing 15

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 11/5/14. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MELISSA SALESKI-SHINGARA,
Plaintiff,
v.
VNA HEALTH SYSTEMS and
YVONNE TIMCO,
Defendants.

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4:14-CV-00085
(Judge Brann)

MEMORANDUM
November 5, 2014
Defendants, VNA Health Systems1 and Yvonne Timco, jointly filed a
Motion to Dismiss Plaintiff Melissa Saleski-Shingara’s Complaint for lack of
subject matter jurisdiction and failure to state a claim upon which relief can be
granted pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. Plaintiff’s eight-count Complaint, filed January 17, 2014, alleges
violations of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq (hereinafter “Title VII”), the Pregnancy Discrimination Act, 42
U.S.C. § 2000e, et seq, the Pennsylvania Human Relations Act, 43 P.S. § 953, et
seq (hereinafter the “PHRA”), the Americans with Disabilities Act, 42 U.S.C.

1

§

Defendants claim that Plaintiff incorrectly named her former employer in her Complaint
as “VNA Health Systems” when the true name of her employer is VNA Health System.
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12101, et seq (hereinafter the “ADA”), and the Family and Medical Leave Act, 29
U.S.C. § 2601, et seq (hereinafter “FMLA”).
In her Complaint, Plaintiff asserts claims of sexual discrimination (Count I),
hostile work environment based on sex (Count II), pregnancy discrimination
(Count III), discrimination due to having small children (Count IV), pregnancy and
disability discrimination pursuant to the PHRA (Count V), wrongful discharge
(Count VI), disability discrimination pursuant to the ADA (Count VII), and
violations of the FMLA (Count VIII). All of these Counts are asserted against
VNA Health Systems; only Counts III, IV, V, VII and VIII are asserted against
Defendant Timco.
For the reasons discussed, Defendants’ Motion to Dismiss is granted in part
and denied in part. Counts VI and VII are dismissed with prejudice in their
entirety. Counts III and IV are dismissed with prejudice as against Defendant
Timco. Moreover, Counts V and VIII are dismissed without prejudice as against
both Defendants. Finally, Counts I, II, and IV are dismissed without prejudice as
against VNA. Plaintiff has leave to amend all Counts dismissed without prejudice
in accordance with this Court’s decision.
I. BACKGROUND
On January 17, 2014, Plaintiff Melissa Saleski-Shingara initiated the above2

captioned civil action by filing a Complaint with this Court alleging various claims
of discrimination based on her gender, pregnancy, disability and parental status, as
well as claims for wrongful discharge and violations of the FMLA. (ECF No. 1).
Plaintiff, a female, was hired by Defendant VNA Health Systems
(hereinafter, “VNA”) as a registered nurse in January 2006. Her direct supervisor
at all times was Defendant Yvonne Timco. While employed by VNA, Plaintiff had
children in 2011 and 2012, and as of the date of this Complaint she had a total of
five children. Plaintiff also suffers from multiple sclerosis.
On numerous occasions throughout Plaintiff’s employment with VNA,
Defendant Timco allegedly made comments to Plaintiff regarding Plaintiff’s
pregnancies including, “when are you getting fixed?”, “when are you getting your
tubes tied?” and “when is your husband getting his balls snipped?” After the birth
of her fourth child, Plaintiff returned to work and told Defendant Timco that she
was pregnant once again. It is unclear in what year this occurred. In response
Defendant Timco stated, “I am going to stop hiring woman of child bearing age.”
Thereafter, Defendant Timco began to take adverse actions against Plaintiff,
including refusing to extend holidays such as the day after Thanksgiving and
Christmas Day, even though Plaintiff had seniority and had previously taken off
those days; other employees with less seniority were given those days off from
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work. Moreover, Defendant Timco, allegedly with the knowledge of VNA’s CEO,
Joseph Scopelliti, M.D., began a pattern of harassment against Plaintiff. She
verbally reprimanded Plaintiff about submitting certain documents in an untimely
manner and chastised Plaintiff about her whereabouts when she was using the
restroom. Additionally, Defendant Timco began to question Plaintiff about her
whereabouts when she went to a doctor’s appointment for her pregnancy and told
Plaintiff that she was to advise Defendant Timco of her whereabouts at all times
when she was not with a patient even though no other nurses were questioned
about their whereabouts on similar tasks.
Plaintiff took maternity leave on March 7, 2012. On March 26, 2012,
Plaintiff contacted VNA’s payroll clerk and inquired about her remaining sick and
vacation time. Plaintiff stated that she had been employed with VNA for six years,
and after five years she was supposed to have three weeks of vacation. However,
the payroll clerk informed her that there had been no changes in her vacation time
and she only had forty hours of remaining vacation time.
In the beginning of May 2012, Plaintiff received a letter informing her that
she would be considered as having abandoned her job if Plaintiff did not contact
her employer, since no one had been able to get into contact with her. She
responded ten minutes after receiving the letter and explained that she was never
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told to contact anyone while she was on maternity leave. Several days later, on
May 9, 2012, Plaintiff was advised that the FMLA policy at VNA had been revised
shortly after she had begun her maternity leave and that she therefore had no more
FMLA leave or maternity leave available to her after May 30, 2012. VNA
informed her that she must return to work on that date or her job would be
terminated. Plaintiff had not received any notice of the change in the FMLA
policy. Shortly thereafter, Plaintiff received a letter from an employee of VNA
which stated that they had accepted her verbal resignation due to medical reasons.
Plaintiff immediately informed her employer that she had not resigned.
Unfortunately, Plaintiff was not able to return to work until June 15, 2014
because of pregnancy complications due to her multiple sclerosis. Nevertheless,
Plaintiff was terminated by VNA on May 31, 2012 when she did not return to work
and along with it Plaintiff’s health insurance, which is critical to treat Plaintiff’s
multiple sclerosis. Plaintiff was therefore unable to obtain medicine for her
treatment and as a result she became dizzy, seriously ill, and lost her vision.
Moreover, Plaintiff was unable to work until October 21, 2013 because VNA told
her if she attempted to find a job the company would initiate legal action against
her for violating two non-compete agreements which she had signed when she first
obtained employment at VNA.
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As stated previously, Plaintiff asserts in her Complaint eight claims against
Defendants including sexual discrimination (Count I), hostile work environment
based on sex (Count II), pregnancy discrimination (Count III), discrimination
based on having small children (Count VI), pregnancy and disability
discrimination pursuant to the PHRA (Count V), wrongful discharge (Count VI),
disability discrimination pursuant to the ADA (Count VII), and violations of the
FMLA (Count VIII).
On March 24, 2014, Defendants jointly filed a Motion to Dismiss Plaintiff’s
Complaint for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) and failure to state a claim upon which relief can be granted
under Federal Rule of Civil Procedure 12(b)(6). (ECF No.5). Defendants first
argue that Plaintiff has failed to exhaust her administrative remedies as to her
allegations of sexual discrimination, hostile work environment based on sex, small
children discrimination and disability discrimination in Counts I, II, IV, V and VII.
They next argue that Plaintiff cannot state a claim for pregnancy discrimination
under Count III because she was not pregnant at the time that the adverse
employment action was taken. Additionally, Defendants argue that a claim for
discrimination based on having small children under Count IV cannot survive
because neither Title VII nor the PHRA protect parents of small children. Further,
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they argue that a common law claim for wrongful discharge under Count VI is
unavailable to Plaintiff because the PHRA provides a statutory remedy that
precludes any action for wrongful discharge based on discrimination. Finally,
Defendants argue that Plaintiff’s FMLA claim in Count VIII must fail as a matter
of law because Plaintiff did not and cannot plead that she was entitled to benefits
under the FMLA.
As relates solely to the claims against Yvonne Timco, Defendants assert that
Counts III, IV and VII must be dismissed because individuals may not be held
liable under Title VII or the ADA. Moreover, they argue that Plaintiff has failed to
exhaust her administrative remedies under the PHRA for the claims of pregnancy
and disability discrimination asserted in Count V. This matter is now ripe for
disposition.
II. DISCUSSION
A. Motion to Dismiss Standard
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court must view all allegations stated in the complaint as true
and construe all inferences in the light most favorable to plaintiff. Hishon v. King
& Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
Cir. 1993). However, “the tenet that a court must accept as true all of the [factual]
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allegations contained in the complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). In ruling
on such a motion, the court primarily considers the allegations of the pleading, but
is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d
at 183. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. At the
motion to dismiss stage, the court considers whether plaintiff is entitled to offer
evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d
472, 482 (3d Cir. 2000).
A complaint should only be dismissed if, accepting as true all of the
allegations in the amended complaint, plaintiff has not pled enough facts to state a
claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 561 (2007). “Determining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-664.
“In considering a Rule 12(b)(6) motion, we must be mindful that federal
courts require notice pleading, as opposed to the heightened standard of fact
pleading.” Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa.
May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "requires only a
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‘short and plain statement of the claim showing that the pleader is entitled to relief,'
in order to 'give the defendant fair notice of what the…claim is and the grounds on
which it rests,'" Bell Atlantic Corp. v. Twombly, 550 U.S. at 554 (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). However, even under this lower notice pleading
standard, a plaintiff must do more than recite the elements of a cause of action, and
then make a blanket assertion of an entitlement to relief. See Hellmann, 2008 WL
1969311 at *3. Instead, a plaintiff must make a factual showing of his entitlement
to relief by alleging sufficient facts that, when taken as true, suggest the required
elements of a particular legal theory. See Twombly, 550 U.S. at 561. “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - - but it has not “shown” - - “that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)).

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation
by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490
U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where
there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the
non-moving party can prove no set of facts in support of its allegations, then a
claim must be dismissed “without regard to whether it is based on an outlandish
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legal theory or on a close but ultimately unavailing one.” Id. at 327.
B. Failure to Exhaust Administrative Remedies
Defendants first argue that Counts I, II, IV, V and VII of Plaintiff’s
Complaint must be dismissed because Plaintiff failed to exhaust her administrative
remedies under both Title VII and the PHRA, as against both VNA and Defendant
Timco. Defendants contend that even though Plaintiff filed a complaint with the
EEOC, she failed to discuss sex discrimination, hostile work environment based on
sex, small children discrimination, and disability discrimination in her EEOC
charge; as such, she has not exhausted her administrative remedies for those
claims. Rather, they argue, Plaintiff only mentioned pregnancy discrimination in
her EEOC complaint and therefore that is the only claim she may now assert in
court.
A plaintiff seeking relief under Title VII must first exhaust his or her
administrative remedies. 42 U.S.C. § 2000e-16; see McKart v. United States, 395
U.S. 185, 193 (1969); see also Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir.
2010) (“[T]he purposes of the exhaustion requirement are to promote
administrative efficiency, respect executive autonomy by allowing an agency the
opportunity to correct its own errors, provide courts with the benefit of an agency’s
expertise, and serve judicial economy by having the administrative agency compile
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the factual record.”) (citations omitted). This requires that a plaintiff in
Pennsylvania, which has a state agency with authority to investigate claims of
employment discrimination, file charges with the EEOC within 300 days after the
alleged unlawful practice occurred. 42 U.S.C. § 2000e-5; see Watson v. Eastman
Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000).
This obligation is a condition precedent to filing suit under Title VII and
must be pled in the plaintiff’s complaint. See Hornsby v. United States Postal
Service, 787 F.2d 87, 90 (3d Cir. 1986) (“A complaint does not state a claim upon
which relief may be granted unless it asserts the satisfaction of the precondition to
suit specified by Title VII: prior submission of the claim to the EEOC . . . for
conciliation or resolution.”). The pleading of a condition precedent to the initiation
of a lawsuit is governed by Federal Rule of Civil Procedure 9(c), which states in
pertinent part, “In pleading conditions precedent, it suffices to allege generally that
all conditions precedent have occurred or been performed.” Fed. R. Civ. P. 9(c).
Similarly, in order to proceed with a claim under the PHRA, the complainant
must first file a complaint with the PHRC within 180 days after the alleged
discriminatory act occurred. 43 Pa.S. §§ 959(a), 962; see Woodson v. Scott Paper
Co., 109 F.3d 913, 924 (3d Cir. 1997); Lantz v. Hosp. of Univ. of Pa., No. 96-2671,
1996 WL 442795, at *3 (E.D.Pa. July 30, 1996). In order to proceed with his or
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her claim in court, a plaintiff must plead exhaustion of these requirements;
“[f]ailure to exhaust remedies under the PHRA would preclude [the] court from
exercising jurisdiction over a claim for violation of the PHRA.” Lantz, 1996 WL
442795, at *3.
“[T]he parameters of the civil action in the district court are defined by the
scope of the EEOC investigation which can reasonably be expected to grow out of
the charge of discrimination.” Atkinson v. LaFayette College, 460 F.3d 447, 453
(3d Cir. 2006) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99
(3d Cir. 1976)). This means that a subsequent civil action may only encompass
forms of discrimination similar to or related to those filed in the EEOC charge. See
Kresefky v. Panazonic Communs. & Sys. Co., 169 F.R.D. 54, 61 (D.N.J. 1996).
Courts generally take a “fact-specific” approach to this inquiry, which requires
careful scrutiny into “the prior pending EEOC complaint and the unexhausted
claim on a case-by-case basis before determining that a second complaint need not
have been filed.” Robinson, 107 F.3d at 1024. More specifically, courts must
consider whether there is a “close nexus between the facts supporting each claim or
whether additional charges in the judicial complaint may fairly be considered
explanations of the original charge or growing out of it.” Janis v. La-Z-Boy
Furniture Galleries, No. 05-2410, 2006 WL 724157, at *5 (E.D.Pa. Mar. 17,
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2006).
Plaintiff asserts similar facts in her EEOC complaint as in her Complaint.
She discusses the comments made by Defendant Timco after Plaintiff reported her
impending pregnancy and the various discriminatory actions subsequently taken
against her. She checked off the box marked “sex” on the EEOC form. Plaintiff
further alleges that she told her EEOC representative that she was discriminated
against based on her multiple sclerosis, but there is no indication within the EEOC
complaint that she was alleging such a claim.
Viewing the facts in the light most favorable to the Plaintiff, dismissal for
the claims of sexual discrimination, discrimination due to small children, and
hostile work environment based on sex is inappropriate at this juncture, and these
claims will survive a motion to dismiss. It is plausible that these claims could fall
within the scope of permissibility given the facts that she alleged in her complaint
to the EEOC, or at least reasonably expected to grow out of her administrative
complaint. The Court would greatly benefit from the development of an
exhaustive record following discovery and a more complete exposition by the
parties of the issues involved.
However, even interpreting Plaintiff’s EEOC charge liberally, the ADA
claim in Count VII must be dismissed because her EEOC complaint does not even
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vaguely allude to her multiple sclerosis or any discrimination which was predicated
on that disability. There is absolutely nothing in the complaint which would put
VNA or Defendant Timco on notice that she was going to be asserting a claim for
disability discrimination. The fact that she may have discussed such discrimination
with her EEOC representative is irrelevant to the determination at hand. See
Barzanty v. Verizon PA, Inc., 361 Fed.Appx. 411, 415 (3d Cir. 2010) (“The EEOC
Charge Form and the Intake Questionnaire serve different purposes. . . . Moreover,
the Intake Questionnaire is not shared with the employer during the pendency of
the EEOC investigation. . . . A plaintiff cannot be allowed to transfer the
allegations mentioned in the questionnaire to the charge itself. Not only would this
be circumventing the role of the Commission, but it would be prejudicial to the
employer.”). Therefore, Count VII of Plaintiff’s Complaint must be dismissed
with prejudice, and that dismissal consequently applies to both Defendants.
As an additional matter, Plaintiff did not assert that she filed a charge with
the EEOC in her Complaint; rather, the first time that she mentions following the
steps prescribed by Title VII is in her Brief in Opposition to Defendants’ Motion to
Dismiss. (ECF No. 12). Facts contained in a memorandum opposing the motion to
dismiss are not to be taken into account by the Court, because such memoranda do
not constitute pleadings under Rule 7(a). James Wm. Moore et al., Moore’s
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Federal Practice, § 12.34[b]; see also Pennsylvania ex rel. Zimmerman v. Pepsico,
Inc., 836 F.2d 173, 181 (3d Cir. 1981) (“legal theories set forth in Pennsylvania’s
brief are helpful only to the extent that they find support in the allegations set forth
in the complaint.”). As a mandatory condition precedent, Plaintiff’s Complaint
therefore fails to meet the jurisdictional requirements necessary to file a claim in
this Court and Counts I, II, and IV are dismissed without prejudice with leave to
amend to assert exhaustion of administrative remedies under Title VII.
Furthermore, Plaintiff has asserted in Count V of her Complaint that the
Defendants violated the PHRA when they discriminated against her because of her
pregnancy and because of her multiple sclerosis. However, Plaintiff has failed
entirely to plead an exhaustion of administrative remedies under the PHRA.
Defendants have, however, attached what appears to be a complaint filed with the
PHRC to their Motion to Dismiss. Plaintiff is again, however, required to plead
exhaustion of administrative remedies under the PHRA as a mandatory
precondition to any judicial claim. As such, Count V of Plaintiff’s Complaint fails
to meet the jurisdictional requirements necessary to file a claim in this Court. For
that reason, Count V of Plaintiff’s Complaint is dismissed without prejudice with
leave to amend to assert exhaustion of administrative remedies under the PHRA.
Accordingly, Count VII is dismissed with prejudice. However, Counts I, II,
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IV, and V are dismissed without prejudice with leave to amend to allege in the
Complaint exhaustion of administrative remedies.
C. Pregnancy Discrimination
Defendants next allege that Count III of the Plaintiff’s Complaint relating to
pregnancy discrimination should be dismissed for failure to state a claim because
Plaintiff was not pregnant at the time her employment ended. In response, Plaintiff
argues that the pregnancy discrimination began while Plaintiff was still at work and
before the child was born, and that, moreover, the reason why Plaintiff was off
from work at the time of her termination was because of complications due to her
pregnancy because of her multiple sclerosis.
The Pregnancy Discrimination Act makes it an “unlawful employment
practice for an employer to discriminate against any of his employees because he
has opposed any practice made an unlawful practice by this subchapter.” 42 U.S.C.
§ 2000e-3(a). It further expounds that “the terms ‘because of sex’ or ‘on the basis
of sex’ include but are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions; and women affected by pregnancy,
childbirth, or related medical conditions, shall be treated the same for all
employment-related purposes . . . as other persons not so affected but similar in
their ability or inability to work.” 42 U.S.C. § 2000e(k); see Doe v. C.A.R.S.
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Protection Plus, Inc., 527 F.3d 358, 363 (3d Cir. 2008).
In their brief, Defendants cite to Solomen v. Redwood Advisory Co., 183
F.Supp.2d 748 (E.D.Pa. 2002) for the proposition that Plaintiff must be pregnant at
the time the adverse employment action is taken in order to have a valid claim
under the Pregnancy Discrimination Act. A closer reading of Solomen actually
states that the employee must have been pregnant at or near the time of
termination. In fact, Solomen itself cites to multiple cases where discrimination was
found in situations nearly identical to the one at bar. See Marzano v. Computer
Science Corp. Inc., 91 F.3d 487 (3d Cir. 1996) (plaintiff fired during maternity
leave); see also Jacobson v. Regent Assisted Living, No. CV-98-564-ST, 1999 WL
373790 (D.O 1999) (harassment began during maternity leave and plaintiff was
terminated two and a half months after returning to work full-time). Further, even
if the Plaintiff was not pregnant at or near the time of termination, she simply has
“some additional burden in making out a prima facie case,” which means she
“must present some evidence that she was still affected by pregnancy, childbirth or
related medical conditions at the time she was terminated.” Solomen, 183
F.Supp.2d at 754.
In this case, Plaintiff had her child on March 30, 2012, and she was
terminated from her position with VNA on May 31, 2012, two months later. By
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the very text of the statute, Plaintiff need not be pregnant at the exact time that the
adverse employment action is taken and, under Solomen, termination need only
occur near the time of pregnancy. The appropriate inquiry is whether the adverse
action was taken because of or on the basis of pregnancy, childbirth, or other
related medical conditions. Plaintiff avers that Defendants terminated her solely as
a result of her pregnancy, which was complicated by her multiple sclerosis. As
such, Plaintiff has adequately alleged at this stage in the proceeding that her
termination was directly caused by her pregnancy and subsequent medical
complications to her pregnancy.
Moreover, even if two months is considered too far removed from Plaintiff’s
pregnancy under Solomen, she need only allege some additional evidence that she
was still affected by the pregnancy or related medical conditions. Plaintiff has
satisfied this requirement as well. She stated that she was terminated while still on
leave after having taken time off for her pregnancy which was later complicated by
multiple sclerosis. Complications to pregnancy would constitute being “still
affected by” pregnancy. As such, Plaintiff has adequately pled a claim under
Count III for pregnancy discrimination.
D. Discrimination Due to Having Small Children
Defendant next alleges that Count IV of Plaintiff’s Complaint, which asserts
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a claim of discrimination due to having small children, should be dismissed
because such a claim is not provided for under Title VII or the PHRA. Nor,
Defendants argue, has Plaintiff alleged sufficient factual evidence to state a claim
for sex-plus discrimination.
Defendant is correct in pointing out that such a claim of discrimination due
to having small children is quite novel, and Plaintiff cites to no legal statute to
support her claim. To this Court’s knowledge, parental status is not a protected
characteristic in and of itself under either Title VII or the PHRA. See Necesselrotte
v. Allegheny Energy, Inc., No. 06–01390, 2009 WL 703395 at *11 (W.D.Pa.
March 16, 2009) (citing Coleman v. B-G Maint. Mgmt., 108 F.3d 1199, 1203 (10th
Cir. 1997)); see also Deans v. Kennedy House, Inc., 998 F.Supp.2d 393, 412 n.16
(E.D.Pa. 2014). Plaintiff concedes as much in her Brief in Opposition of
Defendants’ Motion to Dismiss.
However, in her brief Plaintiff appears to argue a form of sex-plus
discrimination, whereby she states that she “pled Count IV because the Defendants
were discriminating against her based on her sex” and “[t]he Defendants constantly
complained to the Plaintiff about being pregnant with other children.” Sex-plus
discrimination cases were first identified by the Supreme Court in Phillips v.
Martin Marietta Corp., 400 U.S. 542, 544 (1971), where the Court held that Title
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VII does not permit an employer to have “one hiring policy for women and another
for men - each having pre-school-age children.” Fundamentally, however, sexplus discrimination is merely a form of gender discrimination. See Tingley-Kelley
v. Trustees of Univ. of Pa., 677 F.Supp.2d 764, 775 (E.D.Pa. 2010). As such, the
analysis of a sex-plus discrimination claim resembles that of a gender
discrimination claim. Id.
To establish a prima facie case based on familial responsibilities, Plaintiff
must demonstrate that: (1) she was a woman with young children; (2) she is
qualified for the position; (3) she suffered an adverse employment action; and (4)
the circumstances of her termination give rise to an inference of discrimination
such as might occur when the position is filled by a person not of the protected
class. See Nesselrotte, 2009 WL 703395 at *9; see also Weightman v. Bank of N.Y.
Mellon Corp., 772 F.Supp.2d 693, 703 (W.D.Pa. 2011) (citing Jones v. School
Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999)).
To the extent that Plaintiff is making a sex-plus claim for gender
discrimination under Title VII, she fails to adequately plead such a claim. Though
she pleads the first three elements along with her sex discrimination claim, she has
not pled that the circumstances of her termination give rise to an inference of
discrimination based on her sex plus her parental status. However, the Court has
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no indication that Plaintiff would be unable to plausibly plead a sex-plus gender
discrimination claim; therefore, Count IV will be dismissed without prejudice with
leave to amend to allege that the circumstances surrounding her termination create
an inference of discrimination, such as where a person not of the protected class
was treated differently than she was.
E. Wrongful Discharge
In Count VI of her Complaint Plaintiff asserts a common law wrongful
discharge claim based upon gender discrimination. However, a claim for wrongful
discharge can only be maintained where there is no available statutory remedy.
See Freeman v. McKeller, 795 F.Supp. 733, 745 (E.D.Pa. 1992). The PHRA
provides a statutory remedy through which a plaintiff can seek redress for
discharge based on discriminatory reasons; as such, a common law wrongful
discharge claim is precluded under the PHRA. See Brown v. St. Luke’s Hosp., 816
F.Supp 342, 344 (E.D.Pa. 1993) (“plaintiff cannot maintain a common law cause
of action for wrongful discharge based upon her termination for allegedly racial
reasons, but must instead pursue the PHRA’s specific statutory remedy.”).
Notably, the Plaintiff agrees that the PHRA provides a statutory remedy that
precludes an action for wrongful discharge based on discrimination and concedes
that Count VI should be dismissed. Because Plaintiff cannot maintain an action for
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wrongful discharge in the face of the PHRA’s statutory remedies, Count VI is
dismissed with prejudice.
F. FMLA Violations
Defendant next contends that Plaintiff’s claim in Count VIII must fail
because she cannot plead any facts in support of her “bald assertion” that
Defendants violated Plaintiff’s rights under the FMLA. They argue that Plaintiff
cannot state a claim under this count because she has not and cannot demonstrate
that she was entitled to any FMLA benefits. Plaintiff responds that she has stated
that she was entitled to twelve weeks of FMLA leave and that Defendants violated
her rights under the FMLA when they changed the policy after she had left on
leave to preclude her from exercising those rights without notifying her of their
change in policy.
The FMLA was enacted, in part, “to balance the demands of the workplace
with the needs of families,” and “to entitle employees to take reasonable leave for
medical reasons.” 29 U.S.C. § 2601(b)(1), (2). A covered employer faces liability
under the FMLA if it interferes with a right that the act guarantees, or if it retaliates
against an employee for invoking the act’s protections. 29 U.S.C. § 2615(a)(1); see
also Budhun v. Reading Hosp. & Medical Center, 765 F.3d 245, 251 (3d Cir.
2014). Specifically, the FMLA provides that “[i]t shall be unlawful for any
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employer to interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). In
order to assert an FMLA interference claim, an employee needs to show that: (1)
she was entitled to benefits under the FMLA and (2) that she was denied them. See
Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005); see also Budhun, 765
F.3d at 252.
It seems reasonably apparent to the Court that Plaintiff in this case is
alleging an interference claim, as she contends that “Defendants by their actions
violated the Plaintiff’s rights under the Family Medical Leave Act.” Consequently,
in order to plausibly plead a claim under the FMLA, she must plead that she was
entitled to benefits and that she was denied them by her employer. Plaintiff clearly
pleads the latter element, that she was denied benefits by her employer; however,
the parties contest whether she has adequately pled the former, that she was
entitled to benefits under the FMLA.
It is the Court’s view that Plaintiff has not adequately pled that she was
entitled to FMLA benefits. She merely states that she attempted to take time off
under the FMLA, and she alludes to a possible entitlement to benefits by stating
that she was unable to return to work because of her pregnancy and her illness.
This alone, however, is insufficient to plead a claim for interference of rights under
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the FMLA; it is too tenuous for this Court to infer an entitlement to benefits from
the sparse facts before it. In her Brief in Opposition to Defendants’ Motion to
Dismiss, Plaintiff states that she was entitled to twelve weeks of leave under the
FMLA; however, as noted above, facts contained in a memorandum opposing the
motion to dismiss are not to be taken into account by the Court, because such
memoranda do not constitute pleadings under Rule 7(a). See James Wm. Moore et
al., Moore’s Federal Practice, § 12.34[b]; see also Pennsylvania ex rel.
Zimmerman, 836 F.2d at 181. Therefore, Count VIII will be dismissed without
prejudice with leave to amend to allege that Plaintiff was entitled to benefits under
the FMLA.

G. Individual Liability of Defendant Timco
1.

Liability of Individuals Under Title VII

Defendants argue that the Title VII claims in Counts III and IV should be
dismissed as against Defendant Timco because individuals may not be held liable
under Title VII. Plaintiff concedes this argument and agrees that the Title VII
claims against Defendant Timco should be dismissed.
Title VII refers specifically to the unlawful practices of employers. 42

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U.S.C. § 2000e-2(a). The statute further defines “employer” as a “person engaged
in an industry affecting commerce who has fifteen or more employees . . . and any
agent of such a person.” 42 U.S.C. § 2000e(b). It is fairly well-settled that this
definition of “employer” under Title VII excludes individuals. See Sheridan v. E.I.
DuPont de Nemours and Co., 100 F.3d 1061, 1077 (3d Cir. 1996). As such,
Defendant Timco cannot be held liable as an individual under Title VII and Counts
III and IV must be dismissed with prejudice as against Defendant Timco.
2.

Liability of Individuals Under the ADA

Defendant further argues that Count VII must be dismissed as against
Defendant Timco because the ADA, like Title VII, does not provide for individual
liability. Plaintiff disagrees, asserting the contrary.
This point is moot given that the ADA claims in Plaintiff’s Complaint have
been dismissed as against both Defendants for failure to exhaust her administrative
remedies. See infra Part II.B. Therefore, the Court does not need to decide at this
juncture whether individuals can be held liable under the ADA.
3.

Exhaustion of Administrative Remedies

Finally, the Defendants argue that Plaintiff’s PHRA claim in Count V must
be dismissed as against Defendant Timco because she was not named as a

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respondent in the administrative charge Plaintiff filed with the PHRC. Plaintiff
does not respond to this argument in her opposing brief.
Federal courts have uniformly held that the PHRA should be interpreted
consistently with Title VII. See Glickstein v. Neshaminy School Dist., No. 96-6236,
1997 WL 660636, at *10 (E.D.Pa. Oct. 22, 1997). The Third Circuit has found that
Title VII must be construed liberally to prevent its jurisdictional requirements from
thwarting the statute’s substantive policies. See Glus v. G.C. Murphy Co., 562 F.2d
880, 887-88 (3d Cir. 1977). Consequently, as courts relax Title VII’s jurisdictional
requirements, they necessarily relax those of the PHRA, especially where a
plaintiff has named subsequent defendants in the body of an administrative charge.
See Kinally v. Bell of Pennsylvania, 748 F.Supp. 1136, 1140 (E.D.Pa. 1990).
Specifically, the court in Glickstein held that the plaintiff only named the school
district as a respondent in her PHRC complaint. Nevertheless, they declined to
dismiss her complaint because she had cited conduct by the additional defendants
in the body of her PHRC complaint. See Glickstein, 1997 WL 660636, at *11.
The present case is similar to Glickstein in that the current Plaintiff named
only VNA and its executive director in her PHRC complaint. However, in the
body of her complaint she cites an abundance of conduct on the part of Defendant
Timco which, she alleges, constituted, in part, the discrimination against her. As
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such, the Court will not dismiss Count V of Plaintiff’s Complaint against
Defendant Timco, provided that Plaintiff amends her Complaint to allege
exhaustion of administrative remedies under the PHRC as discussed earlier in this
memorandum. See infra Part II.B.
III. CONCLUSION
Defendants’ Motion to Dismiss is granted in part and denied in part. Counts
VI and VII are dismissed with prejudice in their entirety. Counts III and IV are
dismissed with prejudice as against Defendant Timco. Moreover, Counts V and
VIII are dismissed without prejudice as against both Defendants. Finally, Counts I,
II, and IV are dismissed without prejudice as against VNA. Plaintiff has leave to
amend all Counts dismissed without prejudice in accordance with this Court’s
decision.
BY THE COURT:

/s Matthew W. Brann
Matthew W. Brann
United States District Judge

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