Opinion
CIVIL NO. 3-17-cv-1419
11-15-2018
EUGENE O'MALLEY, Plaintiff, v. DOWD MARKETING, INC., Defendants
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. INTRODUCTION
The plaintiff in this action is Eugene O'Malley, who has brought claims against his former employer, Dowd Marketing, Inc. ("Dowd"), alleging that he was terminated from his employment in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 951 et seq. In his third amended complaint (Doc. 25), O'Malley alleges that Dowd gave him a poor performance evaluation and impaired his opportunity to receive future wage increases, promotions and other benefits of employment because he took FMLA leave to care for his ailing father. O'Malley also alleges that Dowd terminated his employment because he took FMLA leave for his own serious medical condition and otherwise retaliated and discriminated against him because of his disabilities.
The plaintiff originally brought this suit against Sundance Vacations, Inc. The parties have stipulated that the plaintiff's former employer was actually Dowd Marketing, Inc., not Sundance, and that Dowd should be substituted as the proper defendant. (Doc. 40.) Accordingly, although the plaintiff's third amended complaint names Sundance throughout, in accordance with the parties' stipulation and the Court's order substituting Dowd as the correct defendant, we will refer only to Dowd Marketing, Inc. in this report and in our discussion have modified the plaintiff's allegations to reflect that they are against Dowd.
Dowd now moves to dismiss this third amended complaint for failure to state a claim upon which relief can be granted. With the scope of our review confined to the well-pleaded facts set forth in this complaint for the following reasons, we recommend that Dowd's motion be granted as to O'Malley's claims for FMLA interference claims but denied with respect to his claims for FMLA retaliation, ADA discrimination, and related state-law claims brought pursuant to the PHRA.
II. FACTUAL BACKGROUND
A. O'Malley's Use of FMLA Leave to Care for His Father
In his third amended complaint, O'Malley alleges that from the spring of 2015 to the fall of 2015 his father suffered from cirrhosis and liver disease, which caused him to be hospitalized and receive hospice care near the end of his life. (Doc. 25, 3d Am. Compl. ¶ 11-12). During this time O'Malley used FMLA leave to care for his father. (Id. at ¶ 13). O'Malley alleges that even though he informed Dowd of his intent to take leave and Dowd approved his leave as vacation time, Dowd never provided O'Malley with the requisite notice of his rights under the FMLA. (Id. at ¶ 14-17). O'Malley believes that his leave was FMLA-protected, but Dowd did not consider it to be protected. (Id. at ¶ 16, 18). O'Malley further alleges that he had not exhausted his FMLA leave at that time. (Id. at ¶ 20). Notably, O'Malley does not allege that he was ever denied any leave that he requested to care for his father. Instead, O'Malley contends that in December 2015 he received a performance evaluation where Dowd deducted points specifically because of his use of FMLA leave to care for his father. (Id. at ¶ 21-22). O'Malley believes that this deduction caused him to be passed over by his employer for "wage increases, promotions and/or other benefits." (Id. at ¶ 23). Based on these facts, O'Malley claims interference and retaliation under the FMLA based on his use of qualifying leave to care for a parent. (Id. at ¶ 58-65).
B. O'Malley's FMLA Leave for His Own Health Condition
O'Malley also alleges that he was under the supervision of a physician to treat his own chronic health conditions that include herniated discs and nerve damage in his back. (Doc. 25, 3d Am. Compl. ¶ 24-25). According to the Complaint, these are "long-term conditions for which treatment has had limited effectiveness." (Id. at ¶ 26). O'Malley claims that these conditions cause severe back pain, difficulty walking, and shooting pains in his legs. (Id. at ¶ 29). He contends that Dowd was aware of these conditions throughout his employment. (Id. at ¶ 28).
O'Malley took intermittent FMLA leave to receive treatment for his medical conditions. (Id. at ¶ 30). He contends that he informed Dowd of his intent to take FMLA leave, but Dowd did not provide him with any notice of his rights, and he believes that Dowd did not consider the leave to be FMLA-protected. (Id. at ¶ 32-35). Once again, it is noteworthy that O'Malley's third amended complaint does not allege that he was ever denied leave that he sought for these medical conditions. However, this complaint does allege that Dowd terminated O'Malley's employment on May 11, 2017. (Id. at ¶ 39). O'Malley states that the reason Dowd gave for terminating him was his absences from work. (Id. at ¶ 40). O'Malley thus contends that Dowd terminated him because of his use of FMLA-protected leave. (Id. at ¶ 38).
C. O'Malley's Disabilities
O'Malley alleges that his herniated discs and nerve damage in his back constitute disabilities under the ADA and PHRA. (Doc. 25, 3d Am. Compl. ¶ 41). He contends that these disabilities "significantly impair his ability to, inter alia, work, sit, stand, and walk." (Id. at ¶ 44). Dowd provided O'Malley with accommodations where O'Malley could change his work hours or work from home if he could not report to the office because of his disability. (Id. at ¶ 46-47). Dowd allowed for these accommodations from sometime in 2013 until October 2016. (Id. at ¶ 48).
O'Malley alleges that in late 2016 Dowd removed the accommodations. (Id. at ¶ 49-51). Instead, Dowd required O'Malley to call off from work when he normally would have received an accommodation. (Id. at ¶ 51). O'Malley contends that Dowd refused to reinstate the accommodations or work with O'Malley to identify new accommodations, including not allowing O'Malley to work Saturdays to make up missed time. (Id. at ¶ 52-55). O'Malley alleges that his termination on May 11, 2017, was because of his disability-related absences. (Id. at 56-57). Based upon these averments, O'Malley alleges violations of the ADA and PHRA for failure to accommodate, unlawful retaliation, and unlawful discrimination. (Id. at 76-104).
III. DISCUSSION
A. Rule 12(b)(6) - The Legal Standard.
Dowd has moved to dismiss the third amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that the plaintiff has continued to fail to allege facts that state a claim upon which relief may be granted. With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) continuing with our opinion in Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008) and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 74 L. Ed. 2d 723 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
Thus, the benchmark standard for assessing the legal sufficiency of a complaint is one of plausibility. As the court of appeals has observed:
"The Supreme Court in Twombly set forth the 'plausibility' standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege 'enough facts to state a claim to relief that is plausible on its face.' Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings 'allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.' Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing 'more than a sheer possibility that a defendant has acted unlawfully.' Id. A complaint which pleads facts ' merely consistent with' a defendant's liability, [ ] 'stops short of the line between possibility and plausibility of "entitlement of relief. ' "Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied , 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S. 2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 556 U.S. at 675. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 679. 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.' Id." Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. NCAA, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, LTD. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment.") However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
It is against these legal guideposts that we now evaluate the adequacy of the allegations set forth in O'Malley's third amended complaint.
B. O'Malley's FMLA Interference Claims Fail.
O'Malley has brought two interference claims under the FMLA. Count I alleges that Dowd interfered with O'Malley's efforts to take leave in order to care for his ailing father. Count III relates to interference with leave O'Malley took to treat his own serious health conditions. Both of O'Malley's interference claims are based on Dowd's alleged failure to notify O'Malley of his remaining leave as required by the FMLA. Neither of these claims alleges that O'Malley was ever denied any leave that he sought.
To make a valid claim for interference under the FMLA, O'Malley must establish the following elements, that: (1) he was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA's requirements; (3) he was entitled to FMLA leave; (4) he gave notice to the defendant of his intention to take FMLA leave; and (5) the he was denied benefits to which he was entitled under the FMLA. Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014). Accordingly, to state an interference claim O'Malley must allege facts to show that he was entitled to FMLA leave and that Dowd denied him those benefits. Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006). O'Malley need not show that he was treated differently from other employees, and Dowd cannot justify its actions by establishing a legitimate business purpose for the decision. Id. Moreover, "[b]ecause the FMLA [interference claim] is not about discrimination, a McDonnell Douglas burden-shifting analysis is not required." Id.
The FMLA requires employers to provide individual notice to an employee who takes FMLA leave. Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314, 318 (3d Cir. 2014) (citing 29 C.F.R. § 825.208; Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 142 (3d Cir. 2004)). If an employer fails to provide notice to its employees about their FMLA rights, that failure may give rise to an interference claim. Id. However, to properly plead an interference claim based on an employer's failure to give adequate notice, a plaintiff must show that he was prejudiced by the failure to notify him of his rights. Id. at 318-19 (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 82 (2002)). Prejudice exists when a plaintiff is "able to establish that this failure to advise rendered him unable to exercise that right in a meaningful way, thereby causing injury." Conoshenti, 364 F.3d at 143. Thus, a plaintiff must plead that he would have taken leave differently if he had been given proper notice. Ragsdale, 535 U.S. at 90 ("Ragsdale has not shown that she could have taken less leave or intermittent leave if she had received the required notice.").
In the instant case, O'Malley has failed to plead that he suffered any prejudice because of Dowd's alleged failure to notify him of his FMLA rights for the leave he took for his father's health condition and the leave he used to treat his own health condition. In both instances O'Malley admits that he was granted and took FMLA-qualifying leave. (Doc. 25, 3d Am. Compl. ¶¶ 13-16, 30-32); see also FOP v. City of Camden, 842 F.3d 231, 246 (3d Cir. 2016) (finding no prejudice when an individual took the requisite time off). Nothing in the Complaint indicates that O'Malley would have taken less leave had Dowd notified him of his FMLA rights, and he has not otherwise pled facts to show that he was prejudiced in any way by Dowd's failure to provide notice. In particular, O'Malley has not alleged well-pleaded facts which "establish that this failure to advise rendered him unable to exercise that right in a meaningful way, thereby causing injury." Conoshenti, 364 F.3d at 143.Thus, O'Malley's third amended complaint fails to state an interference claim under the FMLA for Counts I and III for failure to show prejudice and Counts I and III should be dismissed.
C. O'Malley Has Stated an FMLA Retaliation Claim Based Upon the Leave He Took to Care for His Father.
Count II of this third amended complaint is an FMLA retaliation claim that arises out of the leave that O'Malley took to care for his father's health condition. O'Malley claims that he was retaliated against on a performance evaluation where Dowd made note of the FMLA leave and deducted points from O'Malley's employment record as a result.
The FMLA expressly prohibits employers from discriminating or retaliating against employees who have opposed any practice made unlawful under the FMLA, 29 U.S.C. § 2615(a)(2), and implementing regulations make clear that an employer "is prohibited from discriminating against employees or prospective employees who have used FMLA leave. For example . . . employers cannot use the taking of FMLA leave as a negative factor in employment actions such as hiring, promotions or disciplinary actions . . . ." 29 C.F.R. § 825.220(c).
In the typical FMLA retaliation claim, an employee alleges that after taking FMLA-qualifying leave, he was subjected to adverse employment action, including termination or other retaliatory action, because he took time away from work for FMLA-qualifying reasons. See, e.g., Freeman v. Phila. Hous. Auth., No. 12-1422, 2013 U.S. Dist. LEXIS 100774, at *31 (E.D. Pa. July 18, 2018) (describing retaliation claims as those "where an employee requested or took FMLA leave, remained at or returned to work, and then was subject to some type of adverse employment action such as termination or demotion."). In the present case, O'Malley is alleging "adverse employment action" in the form of a negative performance evaluation, which O'Malley alleges resulted in him not receiving wage increases, promotions, and other benefits. (Doc. 25, 3d Am. Compl. ¶¶ 22-23.)
To establish a prima facie case for retaliation under the FMLA, a plaintiff must show that (1) he invoked his right to FMLA-qualifying leave, (2) he suffered an adverse employment decision, and (3) the adverse action was causally related to his invocation of rights. Ross, 755 F.3d at 193 (quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)). Dowd contends that O'Malley has not pled enough facts to establish a prima facie case because a negative performance evaluation alone is not an adverse employment action. Generally, for an action to be considered materially adverse, the action must have "dissuaded a reasonable worker" from using his FMLA rights. Burlington Northern & Santa Fe Ry. V. White, 548 U.S. 53, 68 (2006) (internal quotation omitted). The FMLA does not "set forth a general civility code for the American workplace," and "normally petty slights, minor annoyances, and simple lack of good manners" does not rise to the type of action that would be materially adverse. Id.
It should be noted that Burlington Northern deals with a Title VII discrimination matter. However, the adverse employment action requirement is analogous between Title VII and the FMLA. See e.g. Weigold v. ABC Appliance Co., 105 Fed. Appx. 702, 707-09 (6th Cir. 2004) (dismissing a Title VII claim because a formal reprimand was not materially adverse employment action and dismissing an FMLA claim for the same reason). --------
Likewise, negative performance evaluations, standing alone, typically do not rise to the level of materially adverse employment action. See, e.g., Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001) (holding that written reprimands do not, on their own, constitute actionable retaliation because they do not necessarily represent an adverse impact on the terms and conditions of employment); Hasenwinkel v. Mosaic, 809 F.3d 427, 434 (8th Cir. 2015) ("The alleged mistreatment by Mosaic supervisors included holding her to a higher standard than other nurses, subjecting her to a negative performance evaluation, scrutinizing her work more closely, and declining to invite her to lunch. None of these slights rises to the level of a materially adverse employment action."); Chaib v. Indiana, 744 F.3d 974, 984 (7th Cir. 2014) ("This Court has never held, and in fact has explicitly rejected, that poor performance reviews alone can be the basis for a finding of an adverse employment action by an employer."); cf. Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 322 (6th Cir. 2007) ("[A] negative performance evaluation does not constitute an adverse employment action, unless the evaluation has an adverse impact on an employee's wages or salary."). However, a negative employment evaluation that impairs or results in the loss of employment benefits may in some cases be sufficient to qualify as unlawful retaliation. See Clark v. Phila. Hous. Auth., 701 F. App'x 113 (3d Cir. 2017) (noting that a plaintiff alleging FMLA retaliation "must allege facts from which it could be inferred that the unfavorable performance review adversely affected the terms of conditions of her employment."); Weston, 251 F.3d at 431 (noting that although "reprimands that do not 'effect a material change in the terms or conditions of . . . employment" they may become sufficiently adverse where they are tied to a loss of employment benefits, pay, or promotion); Shenk v. Pennsylvania, No. 1:11-CV-1238, 2013 U.S. Dist. LEXIS 67495 (M.D. Pa. May 13, 2013) ("Although negative performance evaluations in and of themselves are generally not considered to be adverse employment actions, they can constitute an adverse employment action when accompanied by threatening statements or other tangible job consequences.") (citing Boandl v. Geithner, 752 F. Supp. 2d 540, 565 (E.D. Pa. Nov. 2, 2010)).
O'Malley alleges that after he took appropriate FMLA leave to care for his ailing father, he received a negative performance evaluation specifically because he had taken the leave, and he alleged that the negative review resulted in him losing points at work that caused him to forfeit wage increases, promotions and other benefits of employment. Contrary to the defendant's suggestion that O'Malley has predicated his retaliation claim exclusively on a negative employment review, the third amended complaint clearly alleges that O'Malley suffered additional negative consequences that flowed directly from the negative review, which he alleges was expressly based on his absences from work. At the pleading stage of this litigation, we find that these allegations are sufficient to state a claim for FMLA retaliation, and thus will recommend that the defendant's motion be denied with respect to this claim.
D. O'Malley States a Valid FMLA Retaliation Claim Relating to the Leave He Used to Treat His Serious Own Medical Condition.
O'Malley also alleges an FMLA retaliation claim in Count IV based on the defendant's termination of his employment because he asserted his FMLA rights for his own serious health condition. Dowd moves to dismiss Count IV for two reasons: first, Dowd claims that O'Malley did not suffer from a serious health condition, and second, that there were not enough facts plead to show that the termination was causally related to O'Malley's FMLA leave. We are not persuaded by either argument.
With respect to Dowd's first argument, an FMLA plaintiff has the burden of demonstrating that he has a serious health condition. See 29 U.S.C. § 2612(a)(1)(D). Dowd claims that O'Malley has failed to demonstrate that his condition involved either inpatient care or continuing treatment by a healthcare provider as required by the FMLA. See 29 C.F.R. §§ 825.114, 825.115. O'Malley alleges that he "suffers from chronic serious health conditions including herniated discs and nerve damage in his back" (Doc. 25, 3d Am. Compl. ¶ 24); that he "sought and received continuing treatment to manage his pain, and was, at all times relevant hereto, under the supervision of a physician" (id. at ¶ 25); that his "serious health conditions were and remain permanent or long-term conditions for which treatment has had limited effectiveness" (id. at ¶ 26); that his "serious health conditions cause inter alia, severe back pain, difficulty walking and shooting pains in his legs" (id. at ¶ 29); and that his "disabilities significantly impair his ability to, inter alia, work, sit, stand, and walk" (id. at ¶45). The facts in the Complaint sufficiently allege that O'Malley had a serious health condition for which he was receiving treatment.
Dowd's second argument is that O'Malley has not pled sufficient facts to show that the May 2017 termination decision was causally related to his FMLA leave for his own serious health condition. Dowd relies on two assertions in making this argument: first, that O'Malley alleges only conclusory statements regarding the retaliation, and second, that O'Malley failed to allege any temporal proximity between his use of FMLA leave and his termination.
As an initial matter, O'Malley did not simply plead conclusory allegations. He also explicitly pled that "Dowd's stated reason for terminating Mr. O'Malley's employment was his disability-related absences from work" (Doc. 25, 3d Am. Compl. ¶ 57) and that "[i]n late 2016, Dowd withdrew all accommodations and required Mr. O'Malley to call off from work if he was unable to report to the office due to his disabilities." (Id. at ¶ 52). Taking these facts as true, they permit a plausible inference that O'Malley was terminated because of his exercise of his FMLA rights.
Moreover, O'Malley is not absolutely required to plead temporal proximity to establish causation. See Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir. 2014). While Dowd is correct in the fact that O'Malley must plead a causal connection between the use of FMLA leave and his termination, he can do so in one of two ways. Id. O'Malley can "show either (1) an unusually 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." Id. (internal quotation omitted) (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). O'Malley has pled sufficient facts to show a pattern of antagonism coupled with timing. There is no general bright-line rule "limiting the length of time that may pass" between the FMLA leave and the retaliatory action, and courts are cautioned at the pleading stage of litigation to refrain from trying to impose such bright line rules on litigants. Conard v. Pa. State Police, 902 F.3d 178, 184 (3d Cir. 2018) (using the Budhun rule in the context of First Amendment retaliation).
O'Malley alleges that he "did not exhaust the FMLA leave available to him" (Doc. 25, 3d Am. Compl. ¶ 36), that Dowd had already "punished Mr. O'Malley for using FMLA-protected leave to care for his father" (Doc. 25, 3d Am. Compl. ¶ 37), and that "Dowd disciplined and ultimately terminated Mr. O'Malley's employment because of the FMLA-protected leave that Mr. O'Malley took for his own serious health conditions." (Doc. 25, 3d Am. Compl. ¶ 38). Taking these allegations as true and drawing reasonable inferences regarding causation in O'Malley's favor, O'Malley has pled that Dowd has shown a pattern of antagonism towards his use of FMLA leave by punishing him for taking leave to care for his father and later terminating him for using leave to care for himself. See Conard, 902 F.3d at 184. At this point in the litigation, we find that these allegations are sufficient to support O'Malley's FMLA retaliation claim based upon the leave he took to care for his own serious health conditions.
E. O'Malley Has Stated a Claim for ADA Discrimination Based Upon Dowd's Alleged Failure to Accommodate , Retaliation, and Termination of His Employment .
O'Malley asserts three claims against Dowd for violations of the ADA. He alleges that Dowd failed to accommodate his disabilities (Count V), unlawfully retaliated against him (Count VII), and discriminated against him (Count IX). Dowd moves to dismiss all three counts.
1. Count V - Failure to Accommodate
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To establish a prima facie case for failure to accommodate under the ADA, O'Malley must show that (1) he was disabled under the meaning of the statute, (2) he was a qualified individual, (3) Dowd knew that O'Malley needed a reasonable accommodation, and (4) that Dowd failed to provide a reasonable accommodation. Moore v. CVS RX Servs., 660 Fed. Appx. 149, 152-53 (3d Cir. 2016) (citing Williams v. Phila Hous. Auth. Police Dep't, 380 F.3d 751, 768 (3d Cir. 2004)). Dowd contends that Count V should be dismissed because O'Malley has not alleged sufficient facts to show both that he is disabled under the meaning of the statute and that Dowd failed to provide a reasonable accommodation.
O'Malley alleges that he has a disability because his herniated discs and nerve damage substantially affect his major life activities. Specifically, he alleges that he has "severe back pain, difficulty walking and shooting pains in his legs" (Doc. 25, 3d Am. Compl. ¶ 43) and that "significantly impair[s] his ability to, inter alia, work, sit, stand, and walk." (Doc. 25, 3d Am. Compl. ¶ 44). The ADA Amendments Act of 2008 (ADAAA) lists major life activities as "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, learning, reading, concentrating, thinking, communicating, interacting with others, and working." 29 C.F.R. § 1630.2(i)(i). O'Malley alleges sufficient facts to make plausible that he is substantially limited in working, sitting, standing, and walking, all of which are major life activities specifically identified by the ADAAA. Thus, O'Malley has pled sufficient facts to plausibly allege that he has a disability under the ADA.
The reasonable accommodation that O'Malley requested was the opportunity to work from home when his pain was severe. (Doc. 25, 3d Am. Compl. ¶ 47). O'Malley alleges Dowd accommodated that request from 2013 until October 2016 (Id. at ¶ 48) but that in late 2016 Dowd revoked the accommodation. (Id. at 49). O'Malley claims that the revocation and subsequent failure to identify and implement another accommodation constituted a failure to accommodate. Dowd claims that the company is not required to participate in an "interactive process" that would require it to discuss potential accommodations with O'Malley, relying on Whelan v. Teledyne Metalworking Prods., 226 F. App'x. 141, 147 (3d Cir. 2007), which states that a "failure to participate in the interactive process is not a ground for liability unless the employee has proven failure to accommodate." Id. (emphasis added).
The defendant's reliance on Whelan at this stage of the litigation is misplaced, where O'Malley has alleged that he was given an accommodation that Dowd subsequently removed the accommodation, and then Dowd refused to work with O'Malley to identify and implement another accommodation. O'Malley has alleged sufficient facts to state a claim for failure to accommodate based in part on Dowd's alleged refusal to engage with him in an interactive process regarding workplace accommodations after it had withdrawn an accommodation provided to O'Malley.
Dowd also notes that an employee is not "entitled to any particular accommodation." (Doc. 35, Def. Reply Br. pg. 13). While this is true, O'Malley has alleged that Dowd did not provide any accommodation after the revocation of the initial accommodation. Dowd seems to argue that allowing O'Malley to call off work was an accommodation; however, O'Malley has also pled that he was terminated specifically because of his absences. (Doc. 25, 3d Am. Compl. ¶ 57). The parties' sharply different interpretation of these alleged events defines a factual question which warrants discovery. However, taking all well-pleaded facts in O'Malley's favor, we agree with the plaintiff has plausibly alleged that Dowd failed to accommodate O'Malley or interact with him meaningfully to find a reasonable accommodation that would address his needs. Thus, Dowd's motion should be denied as to Count V.
2. Count VII - Unlawful Retaliation
The ADA proscribes retaliation against employees who seek to avail themselves of the statute's protections, providing that "no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge . . . under [the ADA]." 42 U.S.C. § 12203(a). To establish a prima facie case of retaliation under the ADA, a plaintiff must show "(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action." Williams, 380 F.3d at 759 (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002)). Dowd contends that O'Malley has not pled sufficient facts to show a causal connection between the request for accommodation and his termination.
The argument and analysis here mirrors that of O'Malley's FMLA claim for his own serious medical condition. Dowd again attempts to rely solely on what it perceives as a lack of temporal proximity to allege a lack of causal connection between the request for an accommodation and O'Malley's termination. However, as we have discussed, a "pattern of antagonism" can also show causal connection. Michalesko v. Freeland Borough, 18 F. Supp. 3d 609, 622 (M.D. Pa. 2014) (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000). This pattern can be shown when an "employer gives "inconsistent reasons for termination, engages in a series of seemingly benign actions that essentially paved the way for an employee's termination, or attempts to provoke the employee by continually disciplining him for minor matters . . ." Id.
O'Malley alleges that after Dowd withdrew his requested accommodations the firm "required Mr. O'Malley to call off from work if he was unable to report to the office due to his disabilities." (Doc. 25, 3d Am. Compl. ¶ 51). However, O'Malley also alleges that "Dowd's stated reason for terminating Mr. O'Malley's employment was his disability-related absences from work." (Id. at ¶ 57). Taking these facts as true, they could support an inference that Dowd required O'Malley to call off work when he was in pain an accommodation , and then cited the use of this accommodation as grounds for his termination. This is enough to plead a causal connection, and Dowd's motion to dismiss Count VII should be denied.
3. Count IX - Unlawful Discrimination
In order to establish a prima facie case for ADA discrimination, a plaintiff must show that he is a disabled person within the meaning of the ADA; he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and that he has suffered an otherwise adverse employment decision as a result of discrimination." Williams, 380 F.3d at 761. Dowd contends that O'Malley has not pled sufficient facts to allege that he was terminated because of his disability and that O'Malley has only pled legal conclusions with no factual support.
As discussed above with O'Malley's FMLA leave for his own serious medical condition, O'Malley has pled facts that allege a causal relationship between his disability and his termination. O'Malley has averred that Dowd refused to "reinstate the accommodations they had previously granted, or otherwise work with him to accommodate his disabilities" (Doc. 25, 3d Am. Compl. ¶ 52); that Dowd "refused to allow Mr. O'Malley to work Saturdays, and offered no further discussion" (Doc. 25, 3d Am. Compl. ¶ 55); that "[o]n or about May 11, 2017, Dowd terminated Mr. O'Malley's employment" (Doc. 25, 3d Am. Compl. ¶ 56); and that "Dowd's stated reason for terminating Mr. O'Malley's employment was his disability-related absences from work." (Doc. 25, 3d Am. Compl. ¶ 57). With our review limited to the allegations set forth in the third amended complaint, we find that these allegations are sufficient to plausibly allege that O'Malley was terminated because of his disability. Thus, Dowd's motion to dismiss Count IX for failure to state a claim should be denied.
F. O'Malley's PHRA Claims Should Be Deemed Constructively Exhausted.
Finally, O'Malley alleges three different violations of the PHRA which substantially overlap with his claims under the ADA. He alleges a failure to accommodate (Count VI), unlawful retaliation (Count VIII), and unlawful discrimination (Count X). Dowd moves for dismissal on all three counts because O'Malley has not exhausted his administrative remedies relating to these claims, and because they are now time-barred.
The PHRA requires that plaintiffs administratively exhaust their claims before filing suit in court. See Burgh v. Borough Council of Montrose, 251 F.3d 465, 471 (3d Cir. 2001). In order to file suit under the PHRA, a plaintiff must first bring the claim to the Pennsylvania Human Relations Commission (PHRC), "which has exclusive jurisdiction over the claim for a period of one year in order to investigate and, if possible, conciliate the matter." Id. If the PHRC does not resolve the dispute within one year, the plaintiff may bring a lawsuit regardless of whether they have been notified by the PHRC. Id. Notice of the right to sue is not required. Id.
The defendant's exhaustion claim appears to arise out of a series of administrative missteps in this case, missteps which may have led O'Malley to file this complaint at a time when the PHRC still retained exclusive jurisdiction over the claims. While this may have occurred, it is now evident that the PHRC's jurisdiction has lapsed since the one year period of PHRC exclusive jurisdiction has now passed.
Specifically, O'Malley filed his Charge of Discrimination with the EEOC on November 7, 2017, and he requested a dual filing with the PHRC, but O'Malley believes that the EEOC may not have filed the administrative claim with the PHRC. (Doc. 32, at 8 and Ex. A., Charge of Discrimination). He received a right-to-sue letter from the EEOC on November 27, 2017. (Doc. 32, Ex. B.) He then first asserted his PHRA claims in his third amended complaint, which was filed on December 21, 2017. Thus, O'Malley brought this suit six weeks after he dual filed an administrative claim with the EEOC and PHRC, but within the one year period of exclusive PHRC jurisdiction, albeit a jurisdictional period during which it is not apparent that the PHRC ever took any action.
On these facts, O'Malley asserts that his PHRC claims should be deemed to be constructively exhausted, which would allow the Court to consider his administrative remedies exhausted if the one-year exclusive jurisdiction ends before trial. See Wardlaw v. City of Phila., Civil No. 09-3981, 2011 U.S. Dist. LEXIS 29655, at *13-14 (E.D. Pa. Mar. 21, 2011); Troendle v. Yellow Freight, Inc., Civ. A. No. 97-CV-2430, 1999 U.S. Dist. LEXIS 1346 (E.D. Pa. Feb. 1, 1999); Violanti v. Emery Worldwide, 847 F. Supp. 1251, 1258 (M.D. Pa. 1994).
As it happens, the PHRC's exclusive jurisdiction ran on November 7, 2018, prior to the issuance of this report. Thus, O'Malley asks that his administrative remedies be considered exhausted as of that date. We agree that under the circumstances, this is the most equitable way to proceed, where we can perceive no prejudice to the defendant in doing so, particularly considering that the PHRC's jurisdiction has by this time expired in any event. On this score, it has been observed that:
Courts in this Circuit have adopted a flexible approach to PHRA exhaustion by permitting plaintiffs to maintain PHRA claims if the one-year deadline expires during court proceedings. Rather than dismiss[ing] a plaintiff's claim on a curable, technical defect, these courts allow [the PHRA] claim to be decided on the merits.2011 U.S. Dist. LEXIS 29655, at *13-14; see also Violanti v. Emery Worldwide, 847 F. Supp. 1251, 1258 (M.D. Pa. 1994) (declining to dismiss a PHRA claim filed before the PHRC's one-year exclusive jurisdiction period had ended, noting that "[a]lthough his federal complaint was premature, that defect is not fatal to his claim and is correctable by the passage of time.").
So it is here. O'Malley may have erred by filing his PHRA claims before the PHRC relinquished jurisdiction, but it appears that the PHRC's jurisdictional period has been surpassed during this litigation. Because there is substantial overlap between the factual and legal issues relevant to O'Malley's federal and state claims, and because we cannot perceive any substantial prejudice to the defendant by allowing the PHRA claims to proceed to discovery and further litigation in this Court, it will be recommended that the Court find these state-law claims to be constructively exhausted and permit them to proceed.
IV. RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the Defendant's Motion to Dismiss be GRANTED in part and DENIED in part as follows: the motion to dismiss should be GRANTED as to the FMLA interference claims alleged in Counts I and III but in all other respects, the motion should be DENIED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall
witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this15th day of November, 2018.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge