Opinion
2:20-CV-01478-CRE
07-08-2021
JANET SNYDER, Plaintiff, v. CONCORDIA PRIVATE CARE, Defendant,
REPORT AND RECOMMENDATION
Cynthia Reed Eddy, Chief United States Magistrate Judge.
I. RECOMMENDATION
This civil action was initiated by Plaintiff Janet Snyder for alleged violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”), the Family and Medical Leave Act, 29 U.S.C. § 2615(a) (“FMLA”) and corresponding state anti-discrimination and retaliation laws against Defendant Concordia Private Care (“Concordia”) after she was suffered a knee injury.
Before the Court is a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) by Concordia (ECF No. 6). The motion is fully briefed and ripe for disposition. (ECF Nos. 10, 12 and 14). The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367. For the following reasons, it is respectfully recommended that Concordia's motion to dismiss be denied in its entirety.
II. REPORT
a. Background
Plaintiff was hired as a CPA/Private Care Specialist for Concordia in August 2017. Her job duties included assisting residents with several tasks, including showering, doing laundry and general companionship. Plaintiff alleges that throughout her employment she was considered an excellent employee and did not receive any disciplinary warnings or actions.
On February 10, 2019, while not working and at home, Plaintiff tripped over her dog and fell causing her to injure her knee. Plaintiff returned to work despite her injury, but after a week, she could no longer put any weight on her knee and was unable to walk. Because of this, she left work early on February 17, 2019. Plaintiff told her supervisor Kristen Laboba that she was unable to walk or drive and informed her that the soonest Plaintiff could schedule a doctor's appointment was February 26, 2019. Ms. Laboba approved Plaintiff's request to take leave until she could see a doctor and assured Plaintiff her job was secure.
The next day, on February 18, 2019, Concordia sent Plaintiff a letter stating that she was eligible to take leave through the FMLA and requested further information from Plaintiff's doctor regarding FMLA paperwork by March 7, 2019. On March 5, 2019, Plaintiff saw her doctor and provided the doctor's office with the FMLA paperwork and afterwards informed Ms. Laboba that her doctor's office would send her the paperwork in seven to ten days.
Plaintiff underwent an MRI on March 8, 2019 and learned that she had a torn meniscus and a cracked knee and needed surgery. Plaintiff informed Ms. Laboba of the results of this appointment.
On March 14, 2019, Plaintiff received a letter stating that her FMLA application had been denied because Concordia never received her paperwork. Plaintiff contacted Ms. Laboba to inform her about the denial and Ms. Laboba told her not to worry and requested that she submit the paperwork directly to Concordia. Later that day, Concordia's human resources representative Julie Grasha contacted Plaintiff and informed her that Concordia denied her FMLA due to a lack of information and specificity in the paperwork. As a result, Ms. Grasha informed Plaintiff that her employment was terminated. Plaintiff alleges that Concordia never informed Plaintiff that it received her FMLA paperwork and never requested more information from Plaintiff regarding her paperwork.
Plaintiff filed this action on September 30, 2020 alleging the following causes of action: (1) FMLA retaliation (Count I); (2) FMLA interference (Count II); (3) disability discrimination in violation of the ADA (Count III); (4) failure to accommodate in violation of the ADA (Count IV); and (5) discrimination and retaliation in violation of the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”) (Count V).
b. Standard of Review
The applicable inquiry under Federal Rule of Civil Procedure 12(b)(6) is well settled. Under Federal Rule of Civil Procedure 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “‘does not impose a probability requirement at the pleading stage,' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Yet the court need not accept as true “unsupported conclusions and unwarranted inferences, ” Doug Grant, Inc. v. Great Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Although a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555. Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 556) (internal citations omitted).
When considering a Rule 12(b)(6) motion, the court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
As a general rule, if a court “consider[s] matters extraneous to the pleadings” on a motion for judgment on the pleadings, the motion must be converted into one for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). However, a court may consider (1) exhibits attached to the complaint, (2) matters of public record, and (3) all documents integral to or explicitly relied on in the complaint, even if they are not attached thereto, without converting the motion into one for summary judgment. Mele v. Fed. Rsrv. Bank of New York, 359 F.3d 251, 256 (3d Cir. 2004) n. 5 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
c. Discussion
Concordia moves to dismiss all claims levied against it. Each will be addressed in turn.
i. Plaintiff's right for leave under the FMLA related to her claims for FMLA Retaliation (Counts I and V) and FMLA Interference (Count II)
Concordia argues that Plaintiff has failed to establish a prima facie case for FMLA retaliation and interference because she did not have a right for leave under the FMLA. (ECF No. 10 at 10).
Plaintiff asserts a PHRA retaliation claim alleging that Concordia “retaliated against her on the basis of her temporary disability and resulting need to take time off for her injury to heal when it terminated her without cause.” Compl. (ECF No. 3) at ¶ 45. While Concordia moves to dismiss the PHRA retaliation claim by referencing it in the section heading of its brief, it does not supply any separate legal analysis of the viability of a PHRA retaliation claim based on a request for FMLA leave or her temporary disability. Because Concordia did not raise any argument about this specific claim, no substantive recommendation will be made as to this point and it is respectfully recommended that Concordia's motion, to the extent it sought to raise this issue and seeks dismissal of Count V, should be summary denied for failing to provide substantive argument on the issue. See e.g., United States v. DeMichael, 461 F.3d 414, 417 (3d Cir. 2006) (“a passing reference to an issue will not suffice to bring that issue before this court.”)
While the elements of a prima facie case of FMLA retaliation and interference differ, they share a common element: the employee must have been entitled to FMLA leave. Concordia argues that Plaintiff admits she failed to provide timely medical documentation requested by Concordia after requesting FMLA leave and therefore as a matter of law she was not entitled to FMLA leave and she has failed to show a prima facie case of FMLA interference and retaliation. See Def.'s Br. (ECF No. 10) at 9-11. In support of its argument, Concordia cites two cases for the proposition that if an employee does not submit medical certification that has been requested by her employer or fails to submit completed paperwork, her leave is not FMLA leave. Def.'s Br. (ECF No. 10) at 12 (citing Sconfienza v. Verizon Pennsylvania Inc., 307 Fed.Appx. 619 (3d Cir. 2008) and Watson v. Drexel Univ., No. CV 19-1027, 2020 WL 5763587, at *8 (E.D. Pa. Sept. 28, 2020)). Both cases were decided in the context of summary judgment motions and not at the motion to dismiss stage. Because of the differing standards applicable to a motion for summary judgment and a motion to dismiss, these cases are not persuasive here.
The elements of a prima face case of FMLA retaliation are the “(1) invocation of a right to FMLA leave, (2) an adverse employment action, and (3) a causal link between the two.” Dreibelbis v. Cty. of Berks, 438 F.Supp.3d 304, 320 (E.D. Pa. 2020) (citations omitted). The elements of a prima facie case of FMLA interference are (1) plaintiff is an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA's requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which she was entitled under the FMLA. Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014), or more simply put that the plaintiff was entitled to FMLA benefits and denied them. Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005).
Plaintiff responds that under FMLA regulations, she was entitled to a cure period and did not receive it because the day that Plaintiff's FMLA leave was denied, she was terminated. Pl's Resp. (ECF 12) at 4-5 (citing 29 C.F.R. § 825.305(d)).
At the outset, a plaintiff alleging an employment discrimination-based claim “need not establish a prima facie case in order to survive a motion to dismiss. A prima facie case is an evidentiary standard, not a pleading requirement, and hence is not a proper measure of whether a complaint fails to state a claim.” Connelly v. Lane Const. Corp., 809 F.3d 780, 788-89 (3d Cir. 2016) (internal quotation marks and citation omitted). Whether a prima facie case has been made “is an evidentiary inquiry - it defines the quantum of proof plaintiff must present to create a rebuttable presumption of discrimination.” Fowler, 578 F.3d at 213 (citations omitted). Thus, at the motion to dismiss stage, it is enough for a plaintiff “to allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.” Connelly, 809 F.3d at 788.
Under the Department of Labor's FMLA regulations, an employer may require an employee seeking FMLA leave to submit a certification issued by a health care provider to support the need for FMLA leave. 29 C.F.R. § 825.305(a). If the employee submits an incomplete or insufficient certification, the employer must inform the employee in writing what additional information is necessary to make the certification complete and sufficient and must provide the employee with at least seven days to cure the certification. 29 C.F.R. § 825.305(c). However, when the employee does not timely return a certification to the employer, it is not considered “incomplete or insufficient, ” but rather constitutes a failure to provide the certification. Id. Under these circumstances, the employer may deny FMLA leave for the employee's failure to timely submit a required certification form. See e.g., Sconfienza, 307 Fed.Appx. 619. In other words, an employee who fails to timely submit a certification is not entitled to the cure period provided in 29 C.F.R. § 825.305(c); Keller v. Lackawanna Cty., No. CV 15-2511, 2019 WL 1429629, at *9 (M.D. Pa. Mar. 30, 2019).
Here, Plaintiff alleges that on February 18, 2019, Concordia requested via letter that she provide a medical certification supporting her FMLA leave request by March 7, 2019. Compl. (ECF No. 3) ¶ 16. Plaintiff admits that she failed to submit the medical certification by this date, thus it would appear that she would not be entitled to the cure period set forth in the regulations. However, it is unclear from the complaint whether Plaintiff was provided with additional time to supply the certification, and whether the certification was actually received by Concordia because she also alleges that her FMLA leave was denied “due to a lack of information and specificity in the paperwork[, ]” which can reasonably be inferred to mean that Concordia received at least some form of certification from her physician. Compl. (ECF No. 3) at ¶ 20. While this may prove dispositive of Plaintiff's claims upon a full record, at this stage, the court cannot determine that as a matter of law that her failure to submit a timely medical certification requires dismissal of her claims. Under 29 C.F.R. § 825.305(b), an employee must provide the requested certification to the employer within 15 calendar days after the employer's request “unless it is not practicable under the particular circumstances to do so despite the employee's diligent good faith efforts . . .” 29 C.F.R. § 825.305(b). In this case, Plaintiff alleges that she visited her doctor on March 5, 2019 and provided the office with her FMLA paperwork, two days before the medical certification was due, and informed Concordia after the appointment that her doctor's office would send the FMLA certification in the next seven to ten days. Compl. (ECF No. 3) at ¶ 17. Plaintiff also alleges that she underwent an MRI on March 8, 2019 and informed Concordia of the results of her scan diagnosing her with a torn meniscus and cracked knee and the need for her to undergo surgery. Id. at ¶ 18. Taking these allegations as true, these facts could support a finding that Plaintiff engaged in diligent good faith efforts to timely submit her medical certification, but under her particular circumstances it was not feasible for her to timely submit the requested certification. Additionally, under 29 C.F.R. § 825.305(d), an employer must advise the employee at the time of the FMLA leave request the consequences of the employee's failure to provide adequate certification. It is not yet known whether Plaintiff was informed that the failure to timely provide a medical certification could lead to her immediate termination. See e.g., Payne v. Woods Servs., Inc., No. CV 20-4651, 2021 WL 603725, at *4 (E.D. Pa. Feb. 16, 2021). As a result, dismissal of Plaintiff's FMLA interference and retaliation claims without the benefit of a completed record would be premature and it is respectfully recommended that Concordia's motion to dismiss as it relates to Counts I and II of Plaintiff's complaint be denied.
ii. Plaintiff's FMLA retaliation claim (Count I)
Next, Concordia argues that Plaintiff has failed to establish a prima facie case as to her FMLA retaliation claim because she has failed to put forth facts suggesting a causal link between her protected activity and the termination of her employment. Concordia argues that the day after Plaintiff informed it of her knee injury, it sent her a letter stating that she was eligible to take leave through the FMLA and these facts do not suggest a pattern of antagonism. Def's Br. (ECF No. 10) at 14. Concordia also argues that even if Plaintiff established a prima facie case, Concordia has a legitimate non-retaliatory reason for Plaintiff's termination and cannot show pretext.
Plaintiff responds that she has alleged that the reason for her termination stems from her application for FMLA leave and thus she has established the requisite causal connection.
To show a prima facie case of causation for her FMLA retaliation claim, Plaintiff must point to facts suggestive to support an inference that a causal link exists between her FMLA leave and her termination. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012). To establish a causal connection, Plaintiff must establish “either (1) an usually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism, coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Once a prima facie case is met, the McDonnell Douglas burden-shifting framework applies. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Lichtenstein, 691 F.3d at 302 (applying McDonnell- Douglas framework to FMLA retaliation claim). Under the McDonnell-Douglas framework, the burden shifts to the employer to advance a “legitimate non-retaliatory reason for its adverse employment action[, ]” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997), and if the employer does so, the burden shifts back to the employee to “prove by a preponderance of the evidence that the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination.” Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000) (citation and internal quotation marks omitted).
While Plaintiff's response to the motion to dismiss is threadbare on this issue, Plaintiff's complaint alleges that she expressed her interest for FMLA leave on February 17, 2019, on March 14, 2019 her FMLA leave was denied and she was terminated that same day. The Court of Appeals for the Third Circuit has noted that a temporal proximity between the protected activity and alleged retaliatory action greater than ten days requires supplementary evidence of a retaliatory motive. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000); Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (three weeks between protected activity and adverse employment action is not unusually suggestive); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007) (three months is not usually suggestive). While Plaintiff would have the court find that her immediate termination after the denial of her leave constitutes proximate cause, the proper calculation of time occurs after she engaged in protected activity on February 17, 2019 when she showed interest in leave. She was terminated about 25 days later which does not alone constitute temporal proximity between her protected activity and the adverse employment action. Thus, the court must determine whether the allegations considered together infer antagonism to state a claim for FMLA retaliation. LeBoon, 503 F.3d at 233. “Among the kinds of evidence that a plaintiff can proffer are intervening antagonism or retaliatory animus, inconsistencies in the employer's articulated reasons for terminating the employee, or any other evidence in the record sufficient to support the inference of retaliatory animus.” Id. at 232-33.
After a careful review of Plaintiff's complaint, she has satisfied her burden for causation at this initial stage of litigation. Plaintiff alleges that she was in constant contact with Concordia informing it of her need for FMLA leave, her scheduled medical appointments, diagnosis, and the need for surgery. Plaintiff also alleges that she informed Concordia on March 5, 2019 that the FMLA paperwork would take seven to ten business days to arrive, and when Plaintiff received the denial of her FMLA leave, her supervisor told her not to worry and to submit the certification directly to Concordia. Even so, she was terminated the same day her leave was denied. These allegations support an inference that discovery will reveal retaliatory animus establishing a prima facie case and could support a finding of pretext at this stage in the litigation. As a result, it is respectfully recommended that Concordia's motion to dismiss Plaintiff's FMLA retaliation claim in this respect be denied.
iii. Plaintiff's ADA and PHRA Discrimination Claim (Counts III and V)
Next, Concordia argues that Plaintiff has failed to allege that she was disabled, she did not have a record of impairment and was not regarded as disabled under the ADA and PHRA.
“The analytical framework used to evaluate a disability discrimination claim under the PHRA is effectively indistinguishable from that under the ADA, thus allowing courts to dispose of both ADA and PHRA claims on the same grounds.” Bialko v. Quaker Oats Co., 434 Fed.Appx. 139, 142 (3d Cir. 2011) (citing Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002)).
“A plaintiff presents a prima facie case of discrimination under the ADA by demonstrating: (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.” Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998). Under the ADA, a person is disabled if she has a physical or metal impairment that substantially limits one or more major life activities, has a record of or is regarded has having such an impairment. Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 762 (3d Cir. 2004) (citing 42 U.S.C. § 12102(1)). The “substantially limit” standard should not be construed as “demanding, ” 154 Cong. Rec. S8840-01, and major life activities include the ability to, for example, walk, stand and sit for long periods of time. 29 C.F.R. § 1630.2(i).
Plaintiff adequately alleges that her knee injury and subsequent need for surgery substantially limited her major life activities because she alleges she was unable to walk or to put any weight on her knee. The extent Plaintiff's impairment substantially limits her ability to perform major life activities requires a fact-intensive analysis not appropriate at the motion to dismiss stage. See Fowler, 578 F.3d at 213 (at the motion to dismiss stage, district courts should focus on threshold inquiry of whether plaintiff has pleaded he is disabled). Given the ADA's liberal standards, and Plaintiff identifying her knee injury as a disability and that it limited her ability to walk and stand, she has alleged adequate facts supporting a discrimination claim under the ADA at this procedural juncture. See McFadden v. Biomedical Sys. Corp., No. CIV.A. 134487, 2014 WL 80717, at *2-3 (E.D. Pa. Jan. 9, 2014) (plaintiff's claim that his back condition causes him pain and “limit[s] his ability to walk, stand and sit for long periods of time sufficient for Rule 12(b)(6) standards); Fleck v. WILMAC Corp., No. CIV.A. 10-05562, 2011 WL 1899198, at *5 (E.D. Pa. May 19, 2011) (plaintiff's allegation that she could not stand for more than an hour or walk more than a half mile sufficient for Rule 12(b)(6) standards). Plaintiff has thus stated a claim for discrimination under the ADA and PHRA and it is respectfully recommended that Concordia's motion to dismiss be denied in this respect.
iv. Plaintiff's Failure to Accommodate ADA Claim (Count IV)
Next, Concordia argues that Plaintiff has not stated a failure to accommodate claim under the ADA because she failed to allege that Concordia knew of her disability, that she requested an accommodation, and that Concordia failed to make a good faith effort to accommodate her.
ADA discrimination includes “a failure to make reasonable accommodations for an otherwise qualified employee's known physical limitations.” Williams, 380 F.3d at 761. To state a failure-to-accommodate claim in violation of the ADA, Plaintiff must allege: “(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 . . . [which] in this context include[s] refusing to make reasonable accommodations for a plaintiff' disabilities.” Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 191 (3d Cir. 2009).
Despite Concordia's argument to the contrary, Plaintiff has adequately stated a failure to accommodate claim. She alleges that she informed Concordia of her injury and subsequent need for surgery, requested time off because of her injury and to undergo surgery, was denied medical leave and her employment was terminated. See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004) (a leave of absence is a reasonable accommodation under the ADA); McFadden, 2014 WL 80717, at *5 (request for medical leave to undergo surgery was reasonable accommodation under Rule 12(b)(6) standards); Bernhard v. Brown & Brown of Lehigh Valley, Inc., 720 F.Supp.2d 694, 701 (E.D. Pa. 2010) (medical leave can be a reasonable accommodation under the ADA). Plaintiff has adequately alleged that she requested a reasonable accommodation and that Concordia denied her request and did not act in good faith when it terminated her the same day it denied her request for leave. Thus, at this procedural juncture, Plaintiff has stated a claim for failure to accommodate under the ADA and it is respectfully recommended that Concordia's motion to dismiss be denied in this respect.
v. Punitive and Liquidated Damages
Lastly, Concordia argues that Plaintiff has not adequately alleged facts supporting punitive and liquidated damages because she does not allege “facts that Concordia violated the ADA or FMLA, let alone violated it maliciously, recklessly or in bad faith, and thus Plaintiff is unable to recover punitive and/or liquidated damages even in the unlikely event liability were assessed against Concordia.” Def's Br. (ECF No. 10) at 23. Plaintiff alleges that Concordia was aware of her knee injury, that she kept them apprised of her doctor's appointments, her diagnoses and the need for surgery and despite its awareness and assurances that Plaintiff should not worry about her time off, it denied her request for medical leave and instead terminated her employment. These allegations could lead to evidence supporting a finding that Concordia acted maliciously or with reckless indifference and it is therefore respectfully recommended that Concordia's motion to dismiss on this issue be denied.
Concordia does not move to dismiss Plaintiff's request for punitive and compensatory damages as unrecoverable under the applicable case law and therefore no recommendation on this point will be made. See McFadden, 2014 WL 80717, at *5-6 (punitive and compensatory damages are unavailable remedies when a plaintiff lodges an ADA retaliation claim) (collecting cases); Gagliardo v. Connaught Lab'ys, Inc., 311 F.3d 565, 570, n.3 (3d Cir.2002) (punitive damages are unavailable under PHRA).
d. Conclusion
For these reasons, it is respectfully recommended that Concordia's motion to dismiss be denied in its entirety. Under 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until July 22, 2021 to file objections to this report and recommendation. Unless Ordered otherwise by the District Judge, responses to objections are due fourteen days after objections are filed. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).