BUSCH v. OSWAYO VALLEY SCHOOL DISTRICT
Filing
19
MEMORANDUM OPINION re 10 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by OSWAYO VALLEY SCHOOL DISTRICT. Order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 9/26/16. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JENETTE BUSCH,
Plaintiff,
v.
OSWAYO VALLEY SCHOOL
DISTRICT,
Defendant.
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Civil Action No. 1:15-cv-239
Magistrate Judge Susan Paradise Baxter
MEMORANDUM OPINION1
M.J. Susan Paradise Baxter
Presently pending before this Court is Defendant’s motion to dismiss Plaintiff’s amended
complaint. For the reasons set forth below, the motion to dismiss will be granted in part and
denied in part.
I.
Relevant Background and Procedural History
On August 13, 2007, Defendant hired Plaintiff to teach Business and Computer classes
and to serve as the faculty advisor for the Future Business Leaders of America (FBLA). ECF
No. 9 ¶¶ 16-17. In December 2007, Plaintiff received an official diagnosis of major fecal
incontinence.2 Id. ¶ 11. Plaintiff’s condition substantially impairs her bowel functions and
causes her to require immediate access to a bathroom. Id. ¶ 12.
Plaintiff promptly informed Defendant of her condition and requested accommodations.
Id. ¶ 18. Initially, Defendant permitted Plaintiff to take antidiarrheal medication and to
1
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a United
States Magistrate Judge conduct proceedings in this case, including the entry of a final judgment.
2
The parties do not contest that a diagnosis of major fecal incontinence qualifies as a disability under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
1
occasionally sit down for twenty minutes when she felt that she was going to lose control of her
bowels. Id. ¶ 19. While these measures did not cure her condition, they allowed her to maintain
better bowel control and perform her job. Id. ¶ 20.
In August 2012, Defendant hired Dr. Frank McClard to serve as the district’s
superintendent and acting principal. Id. ¶ 21. Plaintiff met with McClard at the end of the 20122013 school year to discuss her disability. Id. ¶ 22. In order to accommodate her bowel
condition, Plaintiff requested that McClard relocate her classroom to a location closer to a
bathroom. Id. ¶ 23. McClard ignored her request and, rather than offer alternative
accommodations, immediately disciplined Plaintiff for sitting down to control her bowels. Id. ¶¶
24-25.
In September 2013, McClard sent an email to Plaintiff requesting that she meet him in his
office for disciplinary purposes. Id. ¶ 28. McClard informed Plaintiff that Defendant required
her to walk around and stand up every moment during the school day, aside from her preparation
period. Id. ¶ 31. McClard warned her that she would be disciplined more harshly if she
continued to sit down to control her bowels. Id. ¶ 32. McClard also furnished her with a fourpage letter of formal discipline and ordered her to provide a written response to the letter by the
following day. Id. ¶¶ 35, 38. Plaintiff avers that these punishments were unique to her in that
other teachers were not punished for sitting down during the workday or required to respond in
writing to disciplinary actions. Id. ¶¶ 34, 39.
Towards the end of October 2013, McClard ordered Plaintiff to attend another
disciplinary meeting at which he reiterated that she was not permitted to sit down to control her
bowel condition and disciplined her for doing so. Id. ¶¶ 41-43. Plaintiff was again ordered to
provide a written response to the disciplinary letter she received from McClard. Id. ¶ 44.
2
A third disciplinary meeting took place under similar circumstances in November 2013.
Id. ¶ 45. At that meeting, McClard handed Plaintiff a memo in which he requested that Plaintiff
provide him with a written response as to why he should not fire her. Id. ¶¶ 46-47. Plaintiff
contends that the stress and anxiety caused by these repeated disciplinary meetings actively
worsened her bowel condition. Id. ¶ 48. McClard also threatened to terminate Plaintiff unless
she resigned her position as FBLA advisor, stopped complaining about his treatment of her,
stopped requesting accommodations, and “shut up” about her allegations of retaliatory and unfair
treatment. Id. ¶¶ 50-51.
On March 21, 2014, Plaintiff provided McClard with a note from her doctor requesting
an accommodation for her condition. Id. ¶ 53. McClard promised that he would raise her
request for accommodations with the school board but failed to do so. Id. ¶ 54. Instead,
McClard continued to threaten her with verbal and written discipline for her requests for
accommodation. Id. ¶ 55.
Around the same time, Plaintiff began to hear other staff members at the school district
openly discussing and joking about her condition. Id. ¶¶ 58-59. Plaintiff avers that McClard
must have informed the other staff members about her condition because he was one of the few
people within the district that was aware of her bowel troubles. Id. ¶ 57.
On April 15, 2014, McClard notified Plaintiff that he had decided not to present the
school board with her request for accommodations. Id. ¶ 62. McClard also confirmed that
Plaintiff would not be permitted to sit during the workday and that no other accommodations
would be provided. Id. ¶¶63-65. In response, Plaintiff “felt compelled to retire due to the stress
and anxiety caused by McClard’s actions that actively made her condition worse and
3
[Defendant’s] refusal to provide her with an accommodation.” Id. ¶ 66. Plaintiff tendered her
retirement notice on June 19, 2014. Id. ¶ 67.
On June 27, 2014, Plaintiff filed a detailed Intake Questionnaire with the Equal
Employment Opportunity Commission (“EEOC”) alleging discrimination and retaliation based
on her disability. Id. ¶ 7; ECF No. 14-1. Plaintiff emphasized two specific instances of
discrimination: McClard’s refusal to raise her accommodation request with the school board on
April 15, 2014, and her discovery that members of the staff were talking and joking about her
medical condition. ECF No. 14-1 at 2. Plaintiff also noted that she had first requested
accommodations from Defendant beginning on May 31, 2013, but had been threatened with
termination and other discipline in response. Id. at 3. Plaintiff checked a box (“Box 2”) at the
end of the form to indicate that she wanted to file a charge of discrimination and authorize the
EEOC to open an investigation. Id. at 4.
Plaintiff followed up by filing a Charge of Discrimination with the EEOC on September
4, 2014, again alleging discrimination and retaliation based on her disability. ECF No. 9 ¶¶ 6, 8;
ECF No. 14-2. In response to a box on the form asking about the timeframe of the alleged
discrmination, Plaintiff stated that the earliest incident of discrimination took place on April 15,
2014, when McClard refused to consider her request for relocation of her classroom. ECF No.
14-2 at 1. Plaintiff stated that she had experienced further discrimination on May 1, 2014, when
she heard co-workers discussing her medical condition, and on June 19, 2014, when she felt
compelled to resign her employment. Id. In addition to those three discrete incidents, Plaintiff
generally described her previous attempts to seek accommodation:
I believe I have been discriminated against because of my medical
condition . . . in that, after [McClard] promised to do everything in his
power to help me relocate my classroom (reasonable accommodation)
when I made several requests, both verbally and written [but he] refused
4
to bring the issue to the Board. Shortly after my initial request, Dr.
McClard attempted selective enforcement towards me of incidental
issues that went on for months aggravating my medical condition. He
threatened to have me fired if I did not resign my position as advisor to a
student organization and stop talking to people (referring to legal
counsel) with regards to my being discriminated against. When I
requested the reasonable accommodations in writing I said that I might
file for a disability if it could not be provided. Moreover, Dr. McClard
was one of the only staff members aware of my medical condition,
which became public information and induced other medical ailments.
As a result, I felt compelled to resign my employment because I could no
longer tolerate the work environment which not only exacerbated my
disability but also induced other medical ailments.
Id. at 2.
Plaintiff received a Right to Sue letter from the EEOC on September 22, 2015. ECF No.
9 ¶ 10. She commenced the instant action on September 30, 2015 (ECF No. 1) and filed a fourcount amended complaint on December 11, 2015. ECF No. 9. Her amended complaint asserts
claims of disability discrimination (Count I), failure to accommodate (Count II), hostile work
environment (Count III), and retaliation (Count IV). Id.
On December 28, 2015, Defendant filed the instant motion to dismiss, arguing that
portions of Plaintiff’s claims are untimely and/or unexhausted. ECF No. 10. Defendant also
contends that Plaintiff has failed to state a claim with respect to her allegations of discrimination,
hostile work environment, and retaliation.3 Id. Plaintiff filed a brief in opposition to
Defendant’s motion on January 22, 2016. ECF No. 14. This matter is now ripe for disposition.
II.
Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the
3
Defendant does not challenge the sufficiency of Plaintiff’s pleading with respect to her failure to accommodate
claim.
5
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A
complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege “enough facts to state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41
(1957)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)(specifically applying Twombly
analysis beyond the context of the Sherman Act).
A Court need not accept inferences drawn by a plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. V. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations.
Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also
McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009)(“The tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”). A plaintiff’s factual allegations “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 556, citing 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme
Court does “not require heightened fact pleading of specifics, [the Court does require] enough
facts to state a claim to relief that is plausible on its face.” Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’
rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469,
at *1 (D.Del.) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). “This
‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for
6
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.” Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 n.3.
The Third Circuit has expounded on the Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal, we must
take the following three steps:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to
state a claim.’ Second, the court should identify allegations that, ‘because
they are no more than conclusions, are not entitled to the assumption of
truth.’ Finally, ‘where there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief.’
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
“The purpose of a motion to dismiss is to test the sufficiency of a complaint, not to
resolve disputed facts or decide the merits of the case.” Tacinda Corp. v. DaimlerChrysler AG,
197 F. Supp.2d 42, 53 (D.Del 2002) citing Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
Indeed, the Supreme Court has held that complaint is properly dismissed under Rule 12(b) where
it does not allege “enough facts to state a claim to relief that is plausible on its facts,” Twombly,
550 U.S. at 570, or where the factual content does not allow the court “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The
question is not whether the plaintiff will prevail in the end but, rather, whether the plaintiff is
entitled to offer evidence in support of his or her claims. Swope v. City of Pittsburgh, 90
F.Supp.3d 400, 405 (W.D. Pa. 2015) citing Oatway v. American International Group, Inc., 325
F.3d 184, 187 (3d Cir. 2003).
III.
Defendant’s Motion to Dismiss
7
Defendant’s motion seeks partial dismissal of the amended complaint on several grounds.
First, Defendant argues that all allegations relating to incidents that occurred prior to November
8, 2013, are untimely. Defendant also contends that Plaintiff has failed to exhaust her
administrative remedies with respect to any incidents occurring prior to April 15, 2014. Finally,
Defendant contends that Plaintiff cannot maintain her claims for disability discrimination and
retaliation because she did not suffer an adverse employment action; cannot establish that she
was subjected to a hostile work environment; and cannot demonstrate that she was constructively
discharged. These issues will be addressed seriatim.
A. Timeliness
A plaintiff asserting a disability claim pursuant to the ADA “has 300 days from the
alleged unlawful employment practice to file a charge of employment discrimination with the
EEOC.” Patterson v. AFSCME # 2456, 320 F. App’x 143, 145 (3d Cir. 2009) (citing 42 U.S.C.
§ 2000e-5(e)(1); 42 U.S.C. § 12117(a)). Incidents occurring outside of this 300-day timeframe
are considered untimely and cannot support a recovery under the ADA. National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 109 (2002) (“A claim is time barred if it is not filed within [the
300-day] time limit[]”); Oden v. SEPTA, 137 F.Supp.3d 778, 786 (E.D. Pa. 2015) (noting that a
claim falling outside of the 300-day time frame “is considered time-barred” and cannot support
recovery under the ADA).
In the instant case, Plaintiff filed her Charge of Discrimination with the EEOC on
September 4, 2014. Looking back 300 days, Defendant requests dismissal of any incidents that
occurred prior to November 8, 2013. This would primarily affect the three alleged instances in
which Plaintiff was disciplined in writing by McClard for sitting during the workday and for
requesting accommodations. See ECF No. 9 ¶¶ 28-52.
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Plaintiff responds that her EEOC Intake Questionnaire, filed on June 27, 2014,
constitutes a “charge of employment discrimination” for purposes of tolling the 300-day
limitations period. If Plaintiff is correct, the operative look-back date becomes August 31, 2013,
and almost all of the incidents alleged in the Amended Complaint would fall safely within the
limitations period.4
The United States Supreme Court has instructed that the EEOC’s Intake Questionnaire
can be considered a “charge” for exhaustion and timeliness purposes if it meets two
requirements. Federal Express Corp. v. Holowecki, 552 U.S. 389, 401-02 (2008). First, it must
contain all of the factual information required by the pertinent EEOC regulations, including the
name of the charged party and an allegation of discrimination. Id. Next, it must be “reasonably
construed as a request for the agency to take remedial action to protect the employee’s rights or
otherwise settle a dispute between the employer and the employee.” Id. The latter requirement
is satisfied where an employee requests remedial action from the EEOC by checking “Box 2” on
the standard Intake Questionnaire. Hildebrand v. Allegheny County, 757 F.3d 99, 113 (3d Cir.
2014).
Under the “permissive” guidelines established by the Supreme Court in Holowecki,
Plaintiff’s intake paperwork clearly satisfies the requisite elements of a charge.5 Her
4
The lone exception would appear to be Plaintiff’s allegation that she first sought accommodations “at the end of
the 2012-2013 school year” and was disciplined in response. ECF No. 9 ¶¶ 22-25. Based on a typical school
schedule, the 2012-2013 school year would almost certainly have concluded prior to August 31, 2013.
5
Although Defendant objects to Plaintiff’s failure to attach the Intake Questionnaire to her amended complaint, the
Third Circuit has instructed that this type of omission is not fatal:
Hildebrand concedes that the Intake Questionnaire was not attached to his amended
complaint. He did, however, submit the questionnaire as an exhibit to his response to
Allegheny County’s motion to dismiss. While a court is limited to considering the
pleadings in deciding a Rule 12(b)(6) motion, we are satisfied that the Intake
Questionnaire was properly before the District Court. There was no dispute as to its
authenticity, and it directly corroborated Hildebrand's claim that he had satisfied the
conditions precedent to filing suit under the ADEA. See Mayer v. Belichick, 605 F.3d
223, 230 (3d Cir.2010) (“In deciding a Rule 12(b)(6) motion, a court must consider
9
Questionnaire details several specific and detailed allegations of discrimination, including
McClard’s refusal to accommodate her condition by allowing her to sit or moving her classroom,
McClard’s threats of termination for talking to counsel and attempting to alleviate her bowel
condition, and the fact that co-workers were openly talking about her condition. ECF No. 14-1
at 1-3. The form identifies “Oswayo Valley School District” as the organization responsible for
the alleged discrimination. Id. at 1. Finally, Plaintiff checked off the critical “Box 2” on the
form to indicate a request for action from the EEOC. See, e.g., Hildebrand, 757 F.3d at 113
(“[A]n employee who completes the Intake Questionnaire and checks Box 2 unquestionably files
a charge of discrimination.”); see also 29 C.F.R. § 1601.12(b) (stating that a submission to the
EEOC will be sufficient to constitute a charge if it is “sufficiently precise to identify the parties,
and to describe generally the action or practices complained of”). As each of the Holowecki
requirements is plainly satisfied, Plaintiff may seek relief for any alleged violations occurring as
far back as August 31, 2013.
B. Administrative Exhaustion
Defendant next contends that Plaintiff failed to exhaust her administrative remedies as to
any claims arising prior to April 15, 2014. Plaintiff maintains that each of her claims is fairly
encompassed within the scope of her administrative filings.
It is axiomatic that a plaintiff must exhaust her administrative remedies before filing an
ADA claim in federal court. Williams v. E. Orange Cmty. Charter Sch., 396 F. App’x 895, 897
(3d Cir. 2010) (“Before filing a complaint, a plaintiff alleging discrimination under the ADA
only the complaint, exhibits attached to the complaint, matters of public record, as well
as undisputedly authentic documents if the complainant's claims are based upon these
documents.”).
Hildebrand, 757 F.3d at 112 n. 2.
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must exhaust her administrative remedies by filing a charge with the EEOC.”). The parameters
of the ensuing federal court action are defined by “the scope of the EEOC investigation which
can reasonably be expected to grow out of the charge of discrimination.” Hicks v. ABT
Associates, Inc., 572 F.2d 960, 966 (3d Cir. 1978); see also Barzanty v. Verizon PA, Inc., 361 F.
App’x 411, 413 (3d Cir. 2010) (limiting suit in district court “to claims that are within the scope
of the initial administrative charge.”). Thus, a claim that has not been specifically presented in
an administrative charge must be evaluated to determine “whether the acts alleged in the
subsequent [federal] suit are fairly within the scope of the prior EEOC complaint, or the
investigation arising therefrom.” Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (quoting
Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984)).
On her EEOC Charge, Plaintiff filled out a box indicating that the “earliest” date of
discrimination was April 15, 2014, the date on which McClard denied her written request for
accommodations. Defendant suggests that Plaintiff should be prohibited from asserting any
earlier instances of discrimination because such incidents would not be within the temporal
scope of her administrative filing. However, as noted by the Third Circuit, the exhaustion
requirement is not so intractable as to “preclude a plaintiff from asserting a claim for the mere
failure to check a box on an EEOC Charge Form.” Barzanty, 361 F. App’x at 414; see also
Boyle v. City of Phila., 2016 WL 1021131, at *3 (E.D. Pa. Mar. 14, 2016) (“The failure to check
a particular box on the charge form does not necessary mean a plaintiff has failed to meet [her]
administrative burden.”). To the contrary, “[t]he most important consideration in determining
whether the plaintiff’s judicial complaint is reasonably related to his EEOC charge is the factual
statement [contained in the charge].” Ford-Greene v. NHS, Inc., 106 F.Supp.3d 590, 607 (E.D.
Pa. 2015) (quoting Doe v. Kohn, Nast & Graf, P.C., 866 F.Supp. 190, 197 (E.D. Pa. 1994)).
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In the instant case, each of the incidents described in the amended complaint is set forth
in the narrative portion of Plaintiff’s EEOC Charge. For example, Plaintiff stated that, shortly
after her initial request for reasonable accommodation, “Dr. McClard attempted selective
enforcement towards me of incidental issues that went on for months aggravating my medical
condition.” ECF No. 14-2 at 2. She also averred that her initial verbal request for
accommodation was met with threats of termination and orders to stop speaking with counsel
and to resign her position as FBLA advisor. Id. Although she did not provide the dates for those
incidents on the charge form, the allegations are presented in sufficient detail that the EEOC’s
investigation would necessarily have encompassed each of those events. See Antol, 82 F.3d at
1295 (holding that a claim is considered exhausted if it is “fairly within” the scope of the
administrative complaint of the investigation arising therefrom); Howard v. Phil. Housing
Authority, 2013 WL 5761299, at *3 (E.D. Pa. Oct. 24, 2013) (noting that, although plaintiff only
checked the box for “retaliation” on her charge form, the accompanying narrative statement
detailed instances of race and gender discrimination as well, allowing the court “to reasonably
conclude that the scope of the EEOC investigation would have covered race and gender
discrimination”). To exclude those incidents from this action based on nothing more than
Plaintiff’s response in a single box would elevate form over function in the precise manner
proscribed by this Circuit’s long-standing EEOC jurisprudence. Barzanty, 361 F. App’x at 414;
see also Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976) (explaining that
the preliminary requirements of filing a charge with the EEOC are to be interpreted in “a
nontechnical fashion”); Styer v. Frito-Lay, Inc., 2016 WL 406715, at *5 (M.D. Pa. Jan. 11, 2016)
(noting that the exhaustion requirement is not to be construed “in a rigid and mechanical
12
fashion”); Schouten v. CSX Transp., Inc., 58 F.Supp.2d 614, 616 (E.D. Pa. 1999) (noting that
courts have given “a fairly liberal construction . . . to EEOC charges”).
Having determined that Plaintiff’s claims are neither time-barred nor unexhausted, the
Court will next consider whether Plaintiff has stated a viable claim for relief for each.
C. Disability-Based Discrimination (Count I)
To establish a claim for discrimination under the ADA, the plaintiff must establish that:
“(1) [she] is a disabled person within the meaning of the ADA; (2) [she] is otherwise qualified to
perform the essential functions of the job, with or without reasonable accommodations by the
employer; and (3) [she] has suffered an otherwise adverse employment decision as a result of
discrimination.” Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998). An adverse
employment action “is one that is ‘serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of employment.’” Cunningham v. Nordisk, 615
F. App’x 97, 100 (3d Cir. 2015) (quoting Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d
Cir. 2004)).
Defendant exclusively challenges Plaintiff’s discrimination claim on the third prong,
arguing that Plaintiff has failed to plead the existence of a “serious and tangible” adverse
employment decision. Id. Defendant characterizes the majority of Plaintiff’s allegations as mere
complaints of negative performance evaluations and threats of termination, correctly noting that
such incidents are typically insufficient to constitute adverse actions within the meaning of the
ADA. See, e,g., Hibbard v. Penn-Trafford Sch. Dist., 2014 WL 640253 (W.D. Pa. Feb. 19,
2014) (holding that placement on a performance improvement plan accompanied by threats of
termination were not sufficient to effectuate “a significant change in employment status”)
13
(quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). However, Defendant’s
argument overlooks or ignores many of the most serious allegations in the amended complaint.
For example, Plaintiff avers that Defendant not only refused to grant reasonable accommodations
for her physical condition, but declined to even engage in any sort of interactive process with
respect to accommodating her disability. The Third Circuit has explicitly held that “refusing to
make reasonable accommodations for a plaintiff’s disabilities” is an adverse employment
decision. Williams v. Phila. Housing Auth. Police Dept., 380 F.3d 751, 761 (3d Cir. 2004). As
explained by the Court:
The ADA specifically provides that an employer “discriminates” against
a qualified individual with a disability when the employer does “‘not
mak[e] reasonable accommodations to the known physical or mental
limitations of the individual unless the [employer] can demonstrate that
the accommodation would impose an undue hardship on the operation of
the business of the [employer].’” Taylor, 184 F.3d at 306 (quoting 42
U.S.C. § 12112(b)(5)(A)) (alterations in original). “Reasonable
accommodation” further “includes the employer’s reasonable efforts to
assist the employee and to communicate with the employee in good
faith,” Mengine v. Runyon, 114 F.3d 415, 416 (3d Cir.1997), under what
has been termed a duty to engage in the “interactive process.”
Id. at 761-62. See also Evans v. Cernics, Inc., 2016 WL 4382751, at*9 (W.D. Pa. Aug. 16,
2016) (in the context of an ADA claim, the “adverse employment decision is the refusal to make
reasonable accommodations for a plaintiff’s disability.”) (internal quotations omitted); Pallatto v.
Westmorland Cnty. Children’s Bureau, 2014 WL 836123, at *10 (W.D. Pa. Mar. 4, 2014) (“The
refusal to make reasonable accommodations for a plaintiff’s disabilities constitutes an adverse
employment decision.”).
As noted above, Plaintiff’s allegations in this regard are detailed and specific. She
alleges that she approached McClard on several occasions to request accommodations and was
routinely ignored or disciplined for her requests. ECF No. 9 ¶¶ 28-52. When Plaintiff produced
14
a doctor’s note to support her request, McClard again threatened her with discipline and refused
to initiate the interactive process by presenting her request to the school board. Id. ¶¶54-55, 6265. These allegations satisfy the pleading requirements for an adverse employment action in the
ADA context. Williams, 380 F.3d at 761, 771.
Plaintiff has also averred that she was constructively discharged from her position. It is
well-settled that constructive discharge can constitute an adverse employment decision. Penn.
St. Police v. Suders, 542 U.S. 129, 143 (2004). Determining whether an employee was
constructively discharged requires a court to consider “whether a reasonable jury could find that
the employer permitted conditions so unpleasant or difficult that a reasonable person would have
felt compelled to resign.” Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001).
In the context of disability discrimination, several courts have noted that a failure to
accommodate or to engage in the interactive process may support an inference of constructive
discharge. See, e.g., Rabuffo v. VCA Smoketown Animal Hosp., 2016 WL 3165606, at *6 (E.D.
Pa. Jun. 6, 2016) (allegation that defendant refused to accommodate plaintiff’s disability after a
surgery despite “repeated requests” was sufficient to state a claim for constructive discharge);
McIntyre v. Archuleta, 2015 WL 4566730, at *13 (W.D. Pa. Jul. 29, 2015) (holding that the
defendant’s refusal “to consider accommodating McIntyre, or to engage in the interactive
process with her in order to determine whether a reasonable accommodation was possible,”
along with evidence of disciplinary retaliation, created a genuine issue of fact as to constructive
discharge); Pagonakis v. Express LLC, 315 F. App’x 425, 430 n. 4 (3d Cir. 2009) (“To the extent
Pagonakis asserts that Express’ failure to accommodate . . . resulted in her constructive
discharge, she may present that theory to a jury.”). As explained by the Court of Appeals for the
Sixth Circuit:
15
Assuming that Smith was denied a reasonable accommodation that
forced her to work well in excess of her medical restrictions, a jury
reasonably could infer that the USPS (through Mullin) knew that Smith's
working conditions would become intolerable to a reasonable person
suffering from her particular disability. As noted, Mullin rescinded
and/or refused to honor Smith's hours-of-work accommodation that had
been in place since 1997, denied Smith the reasonable accommodation of
delegating her non-essential accounting duties, and forced her to work
long stretches of over-forty-hour weeks with few or no days off,
resulting in the foreseeable consequence that Smith's health would
markedly deteriorate. Thus, a reasonable jury could conclude that the
USPS knowingly and deliberately “turned its back” on Smith and,
therefore, the USPS could foresee that Smith would be compelled to quit
her job in order to preserve her health.
Smith v. Henderson, 376 F.3d 529, 537-38 (6th Cir. 2004).
In the instant case, Defendant’s alleged refusal to accommodate Plaintiff’s disability is
compounded by the allegation that McClard actively discouraged her from requesting
accommodations by disciplining her and threatening her with termination. As in each of the
cases cited above, these allegations are sufficient – at least at this early stage in the proceedings –
to suggest that Plaintiff suffered an adverse employment action in the form of a constructive
discharge. Accordingly, Defendant’s motion to dismiss Plaintiff’s discrimination claim will be
denied.
D. Retaliation (Count IV)
A plaintiff asserting a retaliation claim pursuant to the ADA must allege that: (1) she
engaged in a protected activity; (2) the employer took an adverse action against the employee;
and (3) there was a causal connection between the protected activity and the adverse action.
Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). To establish an adverse
employment action, the plaintiff “must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might have dissuaded a
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reasonable worker from making or supporting a charge of discrimination.” Daniels v. School
Dist. of Phila., 776 F.3d 181, 195-96 (3d Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006)). Defendant again challenges only whether Plaintiff sustained
an adverse employment action.
As noted above, Plaintiff has alleged facts suggesting that she was constructively
discharged after she requested reasonable accommodations for her disability. The same
allegations are sufficient to satisfy the adverse action requirement of her retaliation claim. See,
e.g., Clegg v. Falcon Plastics, Inc., 174 F. App’x 18, 27 (3d Cir. 2006) (“A constructive
discharge can count as an adverse employment action for retaliation purposes.”); Hannis-Miskar
v. North Schuylkill Sch. Dist., 2016 WL 3965209, at *5 (M.D. Pa. Jul. 22, 2016) (allegation of
constructive discharge satisfied adverse employment action requirement for both discrimination
and retaliation claims). Defendant’s motion to dismiss Plaintiff’s retaliation claim fails for the
same reasons discussed above.
E. Hostile Work Environment (Count III)
Finally, Defendant challenges whether Plaintiff can establish a hostile working
environment. A successful claim for a hostile work environment under the ADA requires proof
that: (1) the plaintiff is a qualified individual with a disability; (2) the plaintiff was subjected to
unwelcome harassment; (3) the harassment was based on her disability or request for an
accommodation; (4) the harassment was sufficiently severe and pervasive to alter the conditions
of her employment and create an abusive working environment; and (5) the employer knew or
should have known of the harassment and failed to take prompt and effective remedial action.
Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999). In considering
17
whether a work environment is sufficiently hostile or abusive to support a claim, courts have
held that “the conduct must be extreme [enough] to amount to a change in the terms and
conditions of employment.” Carver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005). This
determination is made after considering the totality of the circumstances including “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Id. at 263. Simply put, “offhanded comments and isolated
incidents” are insufficient to sustain a hostile work environment claim. Id.
Plaintiff largely supports her hostile work environment claim by relying on the fact that
Defendant refused to accommodate her disability and forced her to remain standing throughout
her workday despite knowing that it would exacerbate her bowel condition. However, “the mere
denial of a requested accommodation, with nothing more, will not rise to the level of a hostile
work environment.” Floyd v. Lee, 85 F.Supp.3d 482, 517 n. 54 (D.D.C. 2015). Nor may a
plaintiff simply “cobbl[e] together a number of distinct, disparate acts” – the same acts that make
up a separately actionable claim for failure to accommodate or disparate treatment – and label it
“a hostile work environment.” Helvy v. Allegheny Cnty, 2015 WL 672262, at * (W.D. Pa. Feb.
17, 2015) (quoting Brantley v. Kempthorne, 2008 WL 2073913, at *8 (D.D.C. May 13, 2008));
see also Mercer v. SEPTA, 608 F. App’x 60, 63 (3d Cir. 2015) (emphasizing that “[a] reasonable
accommodation request is a one-time occurrence” or “discrete event”). Rather, the prolonged
denial of a reasonable accommodation can underlie a hostile work environment claim only when
“all the circumstances” would support such a claim. Floyd, 85 F.Supp.3d at 517 (quoting Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)); see also Parker v. State of Del.,
Dept. of Public Safety, 11 F.Supp.2d 467, 475 (D. Del. 1998) (rejecting plaintiff’s attempt to
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claim a hostile work environment based largely on individually actionable instances of
discrimination).
In the instant case, Plaintiff alleges that McClard denied her request for reasonable
accommodation on two distinct occasions: at the end of the 2012-2013 school year,6 and on April
15, 2014, when McClard declined to present Plaintiff’s request to the school board. ECF No. 9
¶¶ 22, 53. She further alleges that McClard disciplined her and threatened her with termination
on three occasions for sitting down during the workday. Id. ¶¶ 28, 41, 45, 46, 49-51. Finally,
she asserts that coworkers “openly discussed” and “joked about” her condition, although she
does not provide any specific details to support these conclusory allegations. Id. ¶¶ 58-59.
These are precisely the type of “offhand comments” and “isolated incidents” that courts have
routinely held to be insufficiently hostile to support a claim under Title VII or the ADA. See,
e.g., Koch v. White, 134 F.Supp.3d 158, 168 (D.D.C. 2015) (allegation that the defendant denied
plaintiff reasonable accommodations “for years”, coupled with angry comments from his
supervisor, fell “well short of alleging a hostile work environment”); Lescoe v. Pa. Dept. of
Corrections-SCI Frackville, 464 F. App’x 50, 54 (3d Cir. 2012) (holding that frequent “jokes and
comments about [plaintiff’s] weight, the size of his belly, and not being able to see his groin
area” did not “reach a level of sufficient severity or pervasiveness to alter the conditions of
Lescoe’s employment”); Stough v. Conductive Techs., Inc., 2014 WL 3421069, at *5 (M.D. Pa.
Jul. 11, 2014) (granting summary judgment and finding alleged conduct not sufficiently “severe
or pervasive” where plaintiff with Parkinson’s disease alleged that his employer sent him a
booklet on Parkinson’s disease and a supervisor told him that “his new position was ‘not so bad’
considering that he had Parkinson’s disease”); McCutchen v. Sunoco, Inc., 2002 WL 1896586, at
*12–13 (E.D. Pa. Aug. 16, 2002) (granting summary judgment in favor of employer on hostile
6
As noted above, this incident is time-barred and cannot be considered by the Court.
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work environment claim where employee with partial blindness alleged coworkers called him
“useless” and made comments including “for a guy that can’t see you know how to look in a
book,” and plaintiff “didn't have to see, he merely needed to feel around”).7 In the absence of
any such severe and pervasive conduct, Plaintiff’s hostile work environment claim must be
dismissed.
IV.
Conclusion
For the reasons set forth above, Defendant’s motion to dismiss [ECF No. 10] will be
granted in part and denied in part. Defendant’s motion will be granted as to Plaintiff’s hostile
work environment claim (Count III) and denied in all other respects.
An appropriate Order follows.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
7
Plaintiff’s citation to Owens v. Allegheny Valley Sch., 869 F.Supp.2d 653 (W.D. Pa. 2012), is unavailing. In
Owens, the plaintiff was consistently forced to perform menial and degrading tasks due to his race. Id. at 662.
Plaintiff suggests that being forced to stand up all day despite her bowel condition is cut from the same cloth. We
disagree. Unlike the plaintiff in Owens, Plaintiff was not forced to do anything that was inherently demeaning or
degrading; rather, she was instructed to perform her regular tasks in the ordinary manner, but without the benefit of
the accommodations that she requested. While this conduct may be actionable as a failure to accommodate, it does
not elevate her work conditions to the level of degradation suffered by the plaintiff in Owens.
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