Opinion
Civil Action 23-1184
04-02-2024
TAMMY SIKO, Plaintiff, v. ASTRAZENECA PHARMACEUTICALS LP, Defendant.
REPORT AND RECOMMENDATION
RE: ECF NO. 20
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Pending before the Court is a Partial Motion to Dismiss the Amended Complaint (the “Motion to Dismiss”) filed by Defendant AstraZeneca Pharmaceuticals LP (“AstraZeneca”), ECF No. 20, asking the Court to dismiss with prejudice Plaintiff Tammy Siko's (“Siko”) claims under the Americans with Disabilities Act and the Age Discrimination in Employment Act.
For the reasons that follow, it is respectfully recommended that the Motion to Dismiss be granted with leave to permit Siko to file an amended complaint to correct the identified pleading deficiencies as to the two claims addressed herein.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
In the Amended Complaint, Siko alleges that AstraZeneca violated Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2 et seq.) (“Title VII”), the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (“ADA”), and the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.) (“ADEA”). ECF No. 19.
Siko is a Christian over the age of 40. ECF No. 19 ¶¶ 7, 18. She worked for AstraZeneca as a field-based Executive Cardiovascular Hospital Sales Specialist from February 2020 until her termination on April 29, 2022. Id. ¶ 7. While employed by AstraZeneca, Siko received positive work performance reviews. Id. ¶ 8. In August 2021, AstraZeneca announced a requirement that all employees disclose their COVID-19 vaccination status. Id. ¶ 11. At some point, Siko informed AstraZeneca that she had not received the COVID-19 vaccine. See id. ¶ 49.
On August 19, 2021, Siko attended an all-day work meeting, where she was the only employee who was not vaccinated. Pursuant to AstraZeneca's policy, Siko was required to wear a face mask at the meeting. Id. ¶¶ 12, 49. One of the other employees in attendance tested positive for COVID-19 that same night. Id. ¶ 49. The following morning, AstraZeneca informed Siko that she must quarantine for ten days. Id. ¶ 50. Because the other employees in attendance had chosen to be vaccinated, none of them were required to quarantine. Id., On November 30, 2021, Arrastene (EJ) Henry II, AstraZenca's Head of Inclusion & Diversity, gave a PowerPoint presentation to sales managers and other personnel that included a slide indicating that AstraZeneca should be hiring employees close to the age of 29-years-old. Id., ¶¶ 14, 57. Siko did not attend this meeting and relies only on “information and belief' to support this assertion. Id.
In January 2022, AstraZeneca implemented a COVID-19 vaccine mandate for all U.S. employees. Id., ¶ 15. AstraZeneca stated that it would provide medical or religious exemptions for this policy for its employees. Id., ¶ 16. AstraZeneca gave individuals around a month to submit an accommodation request. Id. ¶ 17. If an employee chose to remain unvaccinated, and was thus not compliant with AstraZeneca's vaccination requirements, AstraZeneca terminated their employment. Id. ¶¶ 16-17. On February 25, 2022, Siko requested an exemption from the vaccination requirement on religious grounds. Id. ¶ 18. After additional communications with Siko regarding her request for an exemption, AstraZeneca determined that Siko was not qualified for an accommodation and granted her extra time to be vaccinated. Id. ¶¶ 19-22. When Siko chose to remain unvaccinated, AstraZeneca terminated her employment on April 29, 2022. Id. ¶ 30.
Without a factual basis supporting her allegation, Siko alleges that a statistically significant portion of the unvaccinated employees who were denied religious or other exemptions under AstraZeneca's vaccine policy were field-based sales employees over the age of 40. Id. ¶ 58. She then asserts that the policy was implemented, in part, to remove employees over the age of 40 and replace them with a younger workforce. Id. ¶ 59.
Siko exhausted her administrative remedies with the United States Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 33. After the EEOC issued Siko a right-to-sue letter, Siko filed a timely Complaint in this Court, and later the Amended Complaint. ECF Nos. 1,19. She asserts three counts against AstraZeneca: (I) violation of Title VII for discrimination on the basis of religious beliefs; (II) violation of the ADA for discrimination in regarding or otherwise perceiving Siko as a person who suffers from a disability; and (III) a violation of the ADEA for carrying out a discriminatory and pretextual policy designed, in part, to eliminate employees of AstraZeneca that were over the age of 40. ECF No. 19.
On September 25, 2023, AstraZeneca filed the pending Motion to Dismiss Siko's ADA and ADEA claims. ECF No. 20. Siko filed a Memorandum of Law in Opposition. ECF No. 26. AstraZeneca filed a Reply Memorandum of Law. ECF No. 27.
The Motion to Dismiss is ripe for consideration.
B. STANDARD OF REVIEW
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' 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. Bell Atl, Corp, v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” Id. 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, labels, conclusions, and “a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]” of his claim) (internal quotations omitted).
A court reviewing a motion to dismiss should take three steps in evaluating the sufficiency of the complaint:
First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937. See also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016).
C. DISCUSSION
AstraZeneca moves to dismiss the ADA and ADEA claims on various grounds. Each ground will be addressed separately.
1. Violation of the Americans with Disabilities Act (Count II)
At Count II, Siko alleges that AstraZeneca “engaged in discriminatory practices under the ADA by subjecting Ms. Siko to adverse treatment and termination for improperly regarding her as having a disability based on her unvaccinated status, in violation of the ADA.” ECF No. 19 ¶ 53.
In the pending Motion to Dismiss, AstraZeneca argues that Siko has failed to state a claim under the ADA. ECF No. 20-1 at 4. Specifically, AstraZeneca argues that Siko is not disabled under the ADA, because being unvaccinated does not meet the ADA's physical or mental “impairment” requirement. Id. at 5. AstraZeneca also independently argues that its vaccination policy required all employees to be vaccinated or to receive an approved exemption through an accommodation process; thus, AstraZeneca did not regard employees such as Siko as disabled. Id. at 8. Siko responds that her vaccination status is a physiological condition, and AstraZeneca regarded her as having a “deficient immune system . . . and that her immunocompromised status required her to limit her life and work activities . . . ECF No. 26 at 8-9. Siko alleges this condition fulfills the “regarded as” requirement of the ADA. Id.
“To state a claim under the ADA, a plaintiff must demonstrate: (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 employer; and (3) [s/]he has suffered an otherwise adverse employment decision as a result of discrimination.” Eshleman v. Patrick Indus., Inc., 961 F.3d 242, 245 (3d Cir. 2020) (internal citations omitted). Relevant to Siko's claim, an individual may be “disabled” under the first prong if she is “regarded as” having a disability. Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 187 (3d Cir. 1999) (citing 29 C.F.R. § 1630.2). This occurs when an individual:
(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has [no such impairment] but is treated by a covered entity as having a substantially limiting impairment.Id. An “impairment” includes “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine[.]” 29 C.F.R. § 1630.2(h)(1).
Here, Siko's claim that her vaccination status is a “physiological condition,” such that the AstraZeneca “regarded her as” having a disability is unavailing. Vaccination status is not a physical or mental impairment - it is a personal choice. Many courts across the country have held the same. See, e.g., Doe(s) v. Pittsburgh Reg'l Transit, No. 2:22-cv-01736, 2023 WL 4867850, at *7 (W.D. Pa. July 31, 2023) (“Being unvaccinated-in itself-is not a ‘physiological disorder or condition, cosmetic disfiguration, or [an] anatomical loss' and nothing in the Amended Complaint indicates that [defendant] regarded it as such. 29 C.F.R. § 1630.2(h)(1). Plaintiffs have not sufficiently established that [defendant] regarded being unvaccinated as an ‘impairment.'”); Friend v. AstraZeneca Pharms. LP, No. 22-03308, 2023 WL 3390820, at *4 (D. Md. May 11, 2023) (“[V]accination status stems from a personal choice, not from a physical or mental impairment.”); Johnson v. Mount Sinai Hosp. Grp., Inc., No. 22-cv-2936, 2023 WL 2163774, at *6 (E.D.N.Y. Feb. 22, 2023), motion for relief from judgment denied, No. 22-cv-2936, 2023 WL 3159233 (E.D.N.Y. Apr. 28, 2023) (“The decision to vaccinate or not to vaccinate is a personal choice, while a disability under the ADA is not something a person chooses.”); Speaks v. Health Sys. Mgmt., Inc., No. 5:22-cv-00077, 2022 WL 3448649, at *5 (W.D. N.C. Aug. 17, 2022) (“Refusing to get a vaccine required by an employer is not itself an ‘impairment' of any sort. Rather, it reflects a personal choice by [plaintiff] that, while hers to make in this context, cannot be considered an impairment under the ADA.”) (emphasis in original); Chancey v. BASF Corp., No. 3:22-cv-34, 2022 WL 18438375, at *3 (S.D. Tex. Dec. 29, 2022), aff d sub nom. Chancey v. BASF, No. 23-40032, 2023 WL 6598065 (5th Cir. Oct. 10, 2023) (“[Plaintiff] has alleged [defendant] regarded him ‘as having a disability of an impaired immune system and impaired respiratory system, and began responding to the plaintiff as if he had a contagious disease.' A number of district courts within this circuit have held that similar allegations are insufficient to state a claim under the ADA. So, too, have courts outside of this circuit.”). In the instant case, Siko's decision to remain unvaccinated does not meet the “regarded as” threshold of having an impairment within the meaning of the ADA.
Siko tries to analogize AstraZeneca's actions to that of the defendant in Jakomas v. City of Pittsburgh, 342 F.Supp.3d 632, 646 (W.D. Pa. 2018), but this, too, fails. In Jakomas, the plaintiff alleged her employer regarded her as being disabled after she underwent a surgical procedure. Id. at 639-40. The district court relied on “inferences” from the defendant's actions to support the allegation that the defendant perceived plaintiff as disabled. Id. at 648. Siko argues that, like the defendant in Jakomas, AstraZeneca “took actions that support the inference that it actually perceived Ms. Siko as being disabled.” ECF No. 26 at 8. However, in Jakomas, the plaintiff was regarded as having a condition that the ADA covered. Id. at 650. Siko does not. As discussed above, the choice to remain unvaccinated is neither a physical nor mental impairment within the meaning of the ADA. Even when viewed in the light most favorable to Siko, as we must at this initial stage of this case, her allegations do not make out a claim under the ADA. Therefore, it is recommended that the Motion to Dismiss be granted as to the ADA claim.
2. Violation of the Age Discrimination in Employment Act (Count III)
AstraZeneca also moves to dismiss Siko's ADEA claim, wherein she alleges that AstraZeneca “engaged in discriminatory practices by terminating Ms. Siko pursuant to the Policy, which was implemented, in part, to remove employees over the age of 40 and replace them with a younger workforce.” ECF No. 19 ¶ 59.
AstraZeneca argues that Siko has failed to state a prima facie ADEA claim, because her conclusory assertions in the Amended Complaint do not support an inference of unlawful discrimination. ECF No. 20-1 at 9-10. Siko responds that the facts alleged are sufficient to support such inference, including that a “statistically significant portion of the unvaccinated employees who were denied . . . exemptions . . . [were] over the age of 40” and that the close temporal proximity of when AstraZeneca gave the presentation regarding hiring younger employees and the “effectuation of a Policy that had a disparate impact on . . . employees over the age of 40 . . . because AstraZeneca appears to have denied religious exemptions to a disproportionate number of such employees.” ECS No. 26 at 13.
To state aprima facie case of age discrimination, the plaintiff must demonstrate: “(1) the plaintiff is at least forty years old; (2) the plaintiff suffered an adverse employment decision; (3) the plaintiff was qualified for the position in question; and (4) the adverse action occurred under circumstances that create an inference that plaintiff's age was a motivating factor.” Dodson v. Coatesville Hosp. Corp., 773 Fed.Appx. 78, 80 (3d Cir. 2019). The fourth prong requires plaintiff establish that her age was a “but-for” cause of her adverse action. Id.
While a prima facia case is sufficient to defeat a motion to dismiss, it is not necessary. “The complaint need only allege enough facts to ‘raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.'” Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021) (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009)). When relying on circumstantial evidence, the “plaintiff can . . . allege actions by an employer that, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Id.
In accordance with Connelly, 809 F.3d at 787, this Court must identify any conclusory allegations and bare statements that are not entitled to a presumption of truth. AstraZeneca contends that Siko's allegations based “upon information and belief' are merely conclusory statements and are not enough to allege the facts necessary to make out a prima facie ADEA claim. ECF No. 20-1 at 14.
Upon review, Siko's Amended Complaint, as it relates to her ADEA claim, contains both improper legal conclusions and appropriate factual allegations. ECF No. 19. Siko pled specific, factual allegations in Paragraphs 14 and 57 of her Amended Complaint, in which she claims AstraZeneca announced an intention to focus its hiring policies on recruiting and obtaining younger talent, particularly with respect to AstraZeneca's field-based sales positions. Id. However, Siko's allegation that AstraZeneca's vaccination policy was an effort to realize this initiative by forcing older personnel out of its employ is a legal conclusion. See Mirinaviciene v. Keuka Coll., No. 23-CV-6233, 2023 WL 8281897, at *4 (W.D.N.Y. Nov. 30, 2023) (holding that the plaintiff's allegations that “upon information and belief that the vaccination policy was used to ‘eliminate tenure track positions' and discriminate due to ‘age and seniority'” were conclusory statements and were not entitled to the presumption of truth). Siko's allegation that a “statistically significant portion of those unvaccinated employees who were denied religious or other exemptions under the Policy were field-based sales employees over the age of 40, like Ms. Siko” is also to improper and conclusory speculation, as Siko has pled no additional facts to support it. See ECF No. 19; Stouffer v. Union R.R. Co., LLC, 85 F.4th 139, 146 (3d Cir. 2023) (“Stouffer's complaint lacks the necessary factual allegations as to statistical disparities. Paragraph 121 of the complaint alleges that there was a ‘statistically significant' impact. This allegation is conclusory and properly discounted. Nowhere in the complaint does Stouffer support that statement with factual allegations.”). Finally, Siko's statements in Paragraphs 59 and 60 are also legal conclusions, as they allege in plain language that AstraZeneca violate the ADEA. ECF No. 19.
With Siko's conclusory statements disregarded, she does not “raise a reasonable expectation that discovery will reveal evidence of [each] necessary element” of her ADEA claim. Martinez, 986 F.3d at 266 (3d Cir. 2021). Siko's termination does not meet the standard that it was “more likely than not” related to her age. Id. Instead, as pled, Siko violated AstraZeneca's vaccination policy and was terminated for that violation. A renewed focus on hiring youthful employees does not lead to the inference that Siko was terminated for her age, given the other alleged facts.
Siko argues in her Memorandum of Law in Opposition that the “unusually suggestive temporal proximity” of the salient events provides a sufficient causal relationship to infer age discrimination. ECF No. 26 at 13. This argument is unavailing. AstraZeneca's alleged presentation indicating it should be hiring younger employees occurred on November 30, 2021. Id. ¶ 14. AstraZeneca announced its COVID-19 vaccine mandate on January 31, 2022. Id. ¶ 15. This is not “unusually suggestive temporal proximity.” See LeBoon v. Lancaster Jewish Cmty. Ctr. Assin, 503 F.3d 217, 233 (3d Cir. 2007) (“Although there is no bright line rule as to what constitutes unduly suggestive temporal proximity, a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation . . . Additionally, one-off remarks by an individual not involved with the decision to terminate Siko does not support Siko's age discrimination claims. See Ezold v. Wolf, Block, Schorr & Solis- . Cohen, 983 F.2d 509, 545 (3d Cir. 1992) (“Stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision.”). Therefore, it is recommended that the Motion to Dismiss be granted as to the ADEA claim.
D. CONCLUSION
For all these reasons, it is respectfully recommended that AstraZeneca's Partial Motion to Dismiss, ECF No. 20, be granted and Siko's ADA and ADEA claims should be dismissed without prejudice.
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, Siko may be in possession of additional facts to support her allegations. Therefore, it is recommended that Siko be afforded a final opportunity to file a Second Amended Complaint to correct the substantial pleading deficiencies identified in this Report only as to claims dismissed without prejudice. The Court should further instruct Siko that a Second Amended Complaint must be filed within thirty days, must fully allege every claim she wishes to pursue against all parties, and must be a pleading that stands by itself without reference to the original or amended complaint. Young v. Minnick, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992).
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
cc: The Honorable W. Scott Hardy, United States District Judge
All counsel of record by Notice of Electronic Filing