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dismissing hostile work environment claim because the complaint did not include enough information about the alleged hostilities
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Civil No. 4:18-CV-1384
12-19-2018
VICTOR E. NORTHERN, Plaintiff v. SUSQUEHANNA UNIVERSITY, Defendant
(Judge Brann)
( ) REPORT AND RECOMMENDATION
I. INTRODUCTION
The plaintiff in this action, Victor Northern, is a former employee of Susquehanna University, where he worked in the areas of development and fundraising. Northern, who is African American, has alleged that co-workers and supervisors in his office created a hostile work environment and discriminated against him on the basis of his race and physical disabilities, eventually causing him to leave his job involuntarily in 2017. He sought relief from the Equal Employment Opportunity Commission, which issued him a right-to-sue letter, and then he initiated this action pro se by filing a complaint asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. (Title VII), and the Americans With Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). Northern has named as defendants Susquehanna University, its Director of Human Resources, Jennifer Bucher, the Assistant Vice President for Gift Planning, Kimberly Andretta, and an Administrate Assistant, Michelle Sears.
The defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Northern's spare, somewhat disconnected, and conclusory allegations are insufficient to state a federal claim under prevailing pleading standards. Northern has opposed the motion, relying in substantial measure on additional factual averments set forth in his brief, (Doc. 17), which were not mentioned in anywhere near the same level of detail in the complaint itself. Upon consideration, we agree with the defendants that the complaint, as filed, is insufficient to state a claim for relief under Title VII, the ADA, or the PHRA. Accordingly, it will be recommended that the complaint be dismissed, but that Northern be granted leave to file an amended complaint that more fully incorporates the factual allegations that he has made in his brief, and to address other pleading deficiencies that are identified in this report.
II. BACKGROUND
The background to this report is taken from the factual allegations made in the complaint, which are accepted as true for purposes of considering the defendants' pending motion.
By any measure, Mr. Northern's complaint is extremely spare in terms of the facts alleged, consisting of a single paragraph that is very short on detail. Indeed, the complaint's brevity makes it difficult to form a complete picture of just what exactly it is that the plaintiff asserts the defendants are alleged to have done, when they are alleged to have done these acts, and what exactly it was that led Mr. Northern to feel unsafe in his job and compelled to leave it. Nevertheless, following review of the limited factual allegations, we glean that the plaintiff is claiming that Michelle Sears, an administrative assistant, "creat[ed] a hostile environment" in the development office after the plaintiff submitted a complaint to defendant Kimberly Andretta, the Assistant Vice President for Gift Giving, alleging some unspecified instance of "potential racial discrimination." (Compl., at 7.) The complaint contains no information as to how Ms. Sears created such an environment, what the circumstances were that the plaintiff considered to be "hostile,", or really any other information to support this naked charge regarding Ms. Sears's allegedly hostile conduct.
The plaintiff then alleges that Ms. Andretta "perpetuated the hostile environment" and further discriminated against the plaintiff by refusing to make accommodations for him if he sought treatment for a vision-related disability and a ruptured disc. (Id.) He alleges that Ms. Andretta told him that she would "take steps" to ensure that he would not succeed at reaching his goals once he returned to work. (Id.)
Next, the plaintiff alleges that some unidentified individual or individuals within the Human Resources department would not permit him to speak to an Acting Vice President of the University regarding his complaints, apparently because this individual would "not be there in six months." (Id.) At the same time, the plaintiff seems to be saying that someone within the Human Resources department told him to ignore any threats he was receiving from Ms. Andretta, and instead to "listen to their direction." (Id.) Nevertheless, this vague statement of reassurance apparently did not alleviate the plaintiff's concerns about the workplace, which he felt was "unsafe" and "led [him] to quitting [his] position due to the hostile work environment." (Id.)
The plaintiff, who is proceeding pro se, utilized a form document in preparing his complaint, and review of that document reveals some additional information. It appears that the plaintiff is making a claim for both retaliation and discrimination under Title VII and the ADA, arguing that he was discriminated against on the basis of his race (which is not identified in the complaint itself) and disability (which he describes as being "low vision"), and that he was retaliated against after presenting some complaints to the Human Resources Department at the University. (Compl.) The plaintiff does not describe what kinds of retaliation he allegedly endured, and he does not provide any additional description of what caused his work environment to be "hostile." (Id.)
Elsewhere in the complaint, the plaintiff notes that he experienced instances of discrimination on April 20, 2016, the week of May 1, 2016, and September 18, 2017. (Id.) He alleges that he filed a charged of discrimination with the EEOC on October 3, 2017, and that the EEOC issued him a right-to-sue letter on April 23, 2018. (Id.)
On the basis of these cursory allegations, the plaintiff seeks substantial monetary and other relief. The defendants maintain that these allegations are simply too limited and conclusory to state a claim for relief under either the ADA or Title VII. Additionally, the defendants note that at least some of the plaintiff's claims appear to be time-barred, and the claims brought against the individual defendants fail because neither Title VII nor Title I of the ADA allows for individual liability. This motion is fully briefed and is, therefore, ripe for resolution.
These briefs include a filing by the plaintiff, (Doc. 17), which contains a further factual narrative. Regrettably, these allegations were not included in his complaint and were instead set down in a brief or other supplemental document that does not qualify as a pleading under the rules. We cannot consider these averments when assessing the sufficiency of Northern's complaint since it is axiomatic that a complaint may not be amended or supplemented by allegations made in a supplemental brief. Pennsylvania ex rel. Zimmerman v. Pepsico, 836 F.2d 173, 181 (3d Cir. 1988) ("It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.") (citation omitted).
III. STANDARD OF REVIEW
The defendants have moved to dismiss the plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the complaint fails "to state a claim upon which relief can 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 (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 -U.S.-, 129 S. Ct. 1937 (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 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (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 (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.
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).
The test for 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 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. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 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).
IV. DISCUSSION
A. Plaintiff's Title VII and ADA Claims Against the Individual Defendants Should Be Dismissed.
As an initial matter, the defendants argue that the plaintiff's claims against defendants Sears, Andretta, and Bucher should be dismissed because neither Title VII nor Title I of the ADA allow for claims against individual defendants.
The plaintiff has also brought claims under the Pennsylvania Human Relations Act, which is roughly the state-law analogue to Title VII and the ADA. As such, courts have noted that in general, the legal analysis applicable to a claim under the PHRA is co-extensive with that applicable under the ADA and Title VII. See Weston v. Pennsylvania, 251 F.3d 420, 426 n.3 (3d Cir. 2001) ("The proper analysis under Title VII and the Pennsylvania Human Relations Act is identical, as Pennsylvania courts have construed the protections of the two acts interchangeably.") (citations omitted); Taylor v. Phoenxville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) ("[A]nalysis of an ADA claim applies equally to a PHRA claim."); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) ("Pennsylvania courts . . . generally interpret the PHRA in accord with its federal counterparts. . . .") There are some exceptions to this general rule, as we note elsewhere in this report. However, except where specially noted, we have considered the plaintiff's discrimination and retaliation claims under Title VII, the ADA, and the PHRA under the same analytical paradigm to avoid unnecessary redundancy.
The Third Circuit Court of Appeals held in Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc) that individuals are not liable for Title VII violations. Id. at 1077-78. Since deciding Sheridan the Third Circuit has since reiterated that "claims against individual supervisors are not permitted under Title VII." See Cardenas v. Massey, 269 F.3d 251, 268 (3d Cir. 2001); see also Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) ("[I]ndividual employees are not liable under Title VII."). The law in this area is clear, and has been for some time, and the plaintiff's Title VII claims against the individual defendants should be dismissed.
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual on the basis of disability. . . ." 42 U.S.C. §12112(a). Title I of the ADA defines a "covered entity" as "an employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. §§ 12111(2). The majority of courts within the Third Circuit have interpreted this language in concluding that the ADA does not provide for individual liability. See Koslow v. Comm. of Pa., 302 F.3d 161, 178 (3d Cir. 2002) ("[T]here appears to be no individual liability for damages under Title I of the ADA . . . ."); Michalesko v. Freeland Borough, 18 F. Supp. 3d 609, 626 (M.D. Pa. 2014) ("Any claim against the individual defendants is further barred because the ADA does not impose individual liability."), aff'd sub nom. Michalesko v. Borough, 658 F. App'x 105 (3d Cir. 2016); McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393, 398 (E.D. Pa. 2002) ("[A] growing number of district courts in this Circuit have concluded that there is no individual liability under the ADA, and this appears to be the consensus view.") In consideration of this substantial authority, it will be recommended that that the plaintiff's claims against each of the individual defendants for alleged violations of Title VII and the ADA be dismissed.
Although the PHRA is generally considered in lockstep with its federal statutory counterparts, individual liability is an area where there may be some exceptions to this rule. The PHRA makes it unlawful "[f]or any person, employer, employment agency, labor organization or employe[e], to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice . . . ." 43 Pa. Cons. Stat. Ann. § 955(e) (emphasis added). The PHRA defines "person" as "one or more individuals, partnerships, associations, organizations, corporations, legal representatives, trustees in bankruptcy or receivers." 43 Pa. Cons. Stat. Ann. § 954(a). The three individuals named as defendants therefore are not necessarily immune from any liability under the PHRA simply because they are sued as individuals. That said, we note that despite this broad language, incidents of harassment or discrimination perpetrated by non-supervisory co-employees typically are not covered by section 955(e) of the PHRA. See Dici v. Comm. of Pa., 91 F.d 542, 552-53 (3d Cir. 1996). Supervisory employees, in contrast, may be liable under §955(e) "on the theory that only supervisors can share the discriminatory purpose and intent of the employer that is required for aiding and abetting." Holocheck v. Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 497 (M.D. Pa. 2005); see also Bacone v. Phila. Hous. Auth., No. 01-CV-419, 2001 WL 748177, at *2 (E.D. Pa. June 27, 2001); Davis v. Levy, Angstreich, Finney, Baldante, Rubenstein & Coren P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa. 1998) ("[a]n individual supervisory employee can be held liable under an aiding and abetting/accomplice liability theory . . . for [her] own direct act of discrimination or for [her] failure to take action to prevent further discrimination by an employee under supervision."). Although we recognize that there may be cases where claims of individual liability under the PHRA may be allowed to go forward in spite of the fact that these same claims would fail under federal law, in this case there is no need to consider whether the plaintiff's discrimination and retaliation claims against the individual defendants may go forward under state law because the plaintiff's discrimination and retaliation claims are insufficiently pleaded.
B. Plaintiff's Claims for Discrimination and Retaliation Under Title VII Should Be Dismissed.
The plaintiff alleges in conclusory fashion, and with very little in the way of supporting facts, that he suffered discrimination on the basis of race and that he was met with retaliation when he complained about discriminatory treatment. In this case, the plaintiff has alleged he was discriminated against on the basis of race under a "hostile work environment" theory, that he was met with retaliation when the conditions worsened after he tried to obtain relief from supervising employees, and that he was constructively discharged when he felt he could no longer work under the conditions in the office.
Title VII provides that an employer may not "discharge . . . or . . . discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment because of such individual's . . . race[.]" 42 U.S.C. § 2000e-2(a)(1). A plaintiff may base a claim of discrimination on allegations which show that the work environment was "hostile," and where a plaintiff can show that a workplace is "so permeated with discriminatory intimidation, ridicule, and insult that it is sufficiently severe or pervasive to alter the conditions of [a] victim's employment and create an abusive working environment, Title VII is violated." Oncale v. Sundowner Offshore Srvs., Inc., 523 U.S. 75, 78 (1998).
In order to make a prima facie claim of race-based discrimination on the basis of a hostile work environment, a plaintiff must show that (1) he suffered intentional harassment based on his race; (2) the harassment was severe or pervasive; (3) the harassment detrimentally affected him; (4) the harassment would have detrimentally affected a reasonable person in similar circumstances; and (5) a basis for employer liability. 42 U.S.C. § 2000e-2(a); Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009); Lawrence v. F.C. Kerbeck & Sons, 134 F. App'x 570, 571 (3d Cir. 2005) (citing Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996); Taylor v. JFC Staffing Assocs., 690 F. Supp. 357 (M.D. Pa. 2009). The last factor requires that the plaintiff point to facts showing that the employer was aware of the discrimination and yet failed to take prompt and appropriate corrective action. Syed, 906 F. Supp. 2d at 358.
Workplace misconduct is not measured in isolation, and accordingly the court's hostile work environment analysis " 'must concentrate not on individual incidents, but on the overall scenario' because it is often difficult to determine the motivation behind allegedly discriminatory actions." Syed v. YWCA of Hanover, 906 F. Supp. 2d 345, 355 (M.D. Pa. 2012) (quoting Beaubrun v. Inter Cultural Family, 2007 WL 172385, *4, 2007 U.S. Dist. LEXIS 4075, *14-15 (E.D. Pa. Jan. 17, 2007)). To evaluate a plaintiff's allegations or proof, a court must evaluate the frequency of the alleged conduct, its severity, whether it was physically threatening or humiliating, and whether it unreasonably interfered with the employee's work performance. Lawrence, 134 F. App'x at 571-72; see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
Title VII is not violated by "[m]ere utterance of an . . . epithet which engenders offensive feelings in an employee" or by mere "discourtesy or rudeness," unless it is so severe or pervasive as to cause an objective change in the terms or conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citations omitted). These considerations also inform an assessment of whether the conduct was "objectively" offensive, since "[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment . . . is beyond Title VII's purview." Harris, 510 U.S. at 21.
Review of the complaint reveals that the plaintiff has failed to allege facts touching on a number of these necessary factors. For example, although he later avers in his briefs that he is African American, the plaintiff never alleges in the complaint itself that he is a member of a protected class. More significantly, the plaintiff has not pled any facts at all to demonstrate how the work environment within his office or at the University in general was "hostile," including no allegations at all describing hostilities that he claims he experienced at work, and no facts regarding the nature, frequency, or severity of the alleged misconduct, or any other factors that could permit the court to assess whether the facts as alleged are sufficiently severe to support a claim for hostile work environment. Finally, the plaintiff has not alleged any facts that could show a basis for imposing respondeat superior liability on the University.
The plaintiff's claim of Title VII retaliation fails along the same lines. To make out a prima facie case of retaliation under Title VII, a plaintiff must show (1) that he engaged in protected activity; (2) that he suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action. Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017). Ultimately, a plaintiff bringing a Title VII retaliation claim must be able to show that his participation in protected activity was the but-for cause of any alleged adverse employment action that he suffered. Univ. of Texas v. Sw. Med. Center v. Nassar, 570 U.S. 338 (2013) ("Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer."); see also Grevious, 851 F.3d at 257 (noting that a plaintiff alleging Title VII retaliation "has a higher causal burden than a plaintiff asserting a claim of direct status-based discrimination under Title VII.").
The complaint simply does not contain sufficient factual allegations to support a claim for Title VII retaliation. The plaintiff asserts that an administrative assistant created a "hostile work environment" in the office after he complained about an unexplained incident of racial discrimination, but what the administrative assistant actually did to create such an environment - or what happened to make the environment "hostile" as a legal matter - is never explained.
The plaintiff also makes a vague allegation that he was somehow not able to air his complaints to an Acting Vice President, but he does not explain how he was prevented from doing so, or who may have prevented him, or how this constituted retaliation for his earlier complaint regarding racial discrimination. And although the plaintiff seems to argue that he was constructively discharged, he acknowledges that he resigned his position with the University, and he has not alleged facts that could even permit the inference that the conduct of the defendants was sufficient to amount to retaliation that altered the terms or conditions of his employment, or effectively compelled his resignation.
Although we recognize that it is not especially difficult for a plaintiff to allege the elements of a prima facie retaliation claim, in this case the plaintiff's allegations are simply too vague and too conclusory to support the charge and require further detail to allow the defendants to respond and for the Court to assess whether the plaintiff has stated enough factual matter to make a cognizable claim.
C. Plaintiff's ADA Claims Should Be Dismissed.
In keeping with the abbreviated and somewhat confusing nature of the plaintiff's allegations throughout the complaint, Northern also purports to be bringing a claim or claims against the University for violations of the ADA. It is not clear exactly what the plaintiff is claiming the University did to violate the ADA, although it appears that he is claiming he was either discriminated against because of a vision-related disability or a ruptured disc in his back, and perhaps that he was retaliated against after he suggested he may need to undergo medical procedures to address these issues. Although the plaintiff has done more than the defendants suggest in terms of identifying medical conditions that would qualify as disabilities under the ADA as that statute has been amended, we agree that the plaintiff needs to do more to explain the basis of his claim or claims under the ADA by alleging facts regarding his disabilities, and the ways in which the University allegedly discriminated against him or retaliated against him in violation of the statute. As the complaint stands now, the plaintiff's claims are simply too vaguely described in order to permit the defendants to meaningfully defend against them.
The purpose of the ADA is to "prevent employment discrimination of qualified individuals on account of their disability." Koller v. Riley Riper Hollin & Colagreco, 850 F. Supp. 2d 502, 512 (E.D. Pa. 2012) (citing 42 U.S.C. § 12112(a)). The Act requires employers to make "reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability, unless the employer demonstrates that such accommodations would impose an undue hardship in the operation of their business." Id. (quoting Fleck v. WILMAC, Corp., No. 10-5562, 2011 U.S. Dist. LEXIS 54039, at *10 (E.D. Pa. May 19, 2011)).
The ADA was substantially amended by the ADA Amendments Act of 2008 ("ADAAA"), Pub. L. No. 110-325, 122 Stat. 3553 (as codified in provisions of 42 U.S.C. §§ 12101 et seq.), which became effective as of January 1, 2009, and therefore the amendments to the ADA are applicable to this case. In passing the amendments to the legislation, "Congress has made clear that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis. Indeed, Congress has instructed that in construing the definition of 'disability' under the ADA, it shall be construed in favor of broad coverage of individuals under the ADA, to the maximum extent permitted by the terms of the [ADA]." Rubano v. Farrell Area Sch. Dist., 991 F. Supp. 2d 678, 690 (W.D. Pa. 2014) (internal citations and quotations omitted). Congress's purpose in amending the ADA was to "reinstat[e] a broad scope of protection" under the ADA. Pub. L. No. 110-325, 122 Stat. 3553 § 2(b). Under this statutory mandate, the Equal Employment Opportunity Commission ("EEOC") revised its implementing regulations to define disability "broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA." 29 C.F.R. § 1630.1(c)(4). Review of the definitions provided by the Act and its implementing regulations make clear the expansive reach of the statute's protections.
Under the ADAAA, to qualify as disabled, a plaintiff must prove one of the following: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such impairment. 42 U.S.C. § 12102(1).
The ADA defines "disability", in pertinent part, as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). "Major life activities" include functions such as "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working." 29 C.F.R. § 1630.2(i)(1)(i). In determining examples of major life activities, the regulations provide that the term "major" shall not be interpreted to create a "demanding standard" for disability. Id. § 1630.2(i)(2) (emphasis added).
With respect to major life activities, the regulations provide that the term "substantially limits" shall be defined broadly in favor of expansive coverage, to "the maximum extent permitted by the terms of the ADA" and also is "not meant to be a demanding standard." 29 C.F.R. § 1630.2(j)(1)(i). An impairment is considered a disability "if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." Id. § 1630.2(j)(1)(ii). However, an impairment "need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting," Id., although "not every impairment will constitute a disability[.]" Id. The thrust of the ADAAA and its implementing regulations thus call for broad coverage and consideration of an individual's own particular circumstances in determining whether that individual is suffers from a disability within the meaning of the Act.
An impairment that is episodic or even on that is in remission may still qualify as a disability so long as it "substantially limit[s] a major life activity when it is active." 42 U.S.C. § 12102(4)D); accord Britting v. Sec'y, Dep't of Veterans Affairs, 409 F. App'x 566, 568 (3d Cir. 2011); Pallatto v. Westmoreland County Children's Bureau, 2014 U.S. Dist. LEXIS 27008, at *29 (W.D. Pa. 2014). Likewise, a disability may continue even after a person has surgery or other mitigating treatment, provided the person continues to be substantially limited in a major life activity. See, e.g., Mengel v. Reading Eagle Co., 2013 WL 1285477, at *3-4 (E.D. Pa. Mar. 29, 2013) (plaintiff continued to suffer from problems with balance after undergoing surgery on a brain tumor); see also Lloyd v. Housing Auth. Of the City of Montgomery, 857 F. Supp. 2d 1252, 1263 (M.D. Ala. 2012) ("At bottom, the expanded definitions of 'disability' and 'major life activities' mean that treatable yet chronic conditions like hypertension and asthma render an affected person just as disabled as a wheelchair-bound paraplegic - if only for the purposes of disability law.").
The amendments to the ADA thus broadened substantially the definition of disability, and whereas prior to the amendments Third Circuit case law held that "permanent or long term impact, or the expected permanent or long term impact of or resulting from impairment" were relevant considerations, Emory v. AstraZeneca Pharmaceuticals, 401 F.3d 174, 179-80 (3d Cir. 2005), the updated EEOC regulations have been changed and now provide that the "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting." 29 C.F.R. § 1630.2(j)(1)(ix). Likewise, "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." Id. § 1630.2(j)(1)(vii); see also Eastman v. Research Pharms., Inc., 2013 U.S. Dist. LEXIS 107935, at *26-27, 2013 WL 3949236 (E.D. Pa. Aug. 1, 2013) (temporal duration of the plaintiff's back pain did not preclude a finding that plaintiff's back impairment "substantially limits" major life activities). Furthermore, labels alone are not dispositive, as "'[t]he determination of whether an individual has a disability is not necessarily based on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of the individual." Id.
In order to make out a prima facie claim for workplace discrimination under the ADA, a plaintiff must demonstrate that he is (1) disabled within the meaning of the ADA, (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer, and (3) has suffered an adverse employment decision as a result of the discrimination. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010); see also Stadtmiller v. UPMC Health Plan, Inc., 491 F. App'x 334, 336 (3d Cir. 2012); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998).
If the plaintiff makes a prima facie showing under this three-part standard, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. Id. If a legitimate, nondiscriminatory reason is given, then the plaintiff must present evidence to demonstrate that the defendant's reasons were pretext for its unlawful action. Id. The plaintiff may meet this burden by identifying evidence that allows a factfinder either to disbelieve the employer's articulated legitimate justification, or to conclude that an invidious discriminatory reason was more likely than not a "but for" cause of the employment action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
The ADA also prohibits employers from retaliating against employees who oppose an act or practice made unlawful by the ADA or because the employee has made a charge under the ADA. 42 U.S.C. § 12203(a); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003) ("it is unlawful for an employer to retaliate against an employee based upon the employee's opposition to anything that is unlawful under the ADA."). Although requesting a reasonable accommodation does not appear to "fit[ ] within the literal language of the statute," Soileua v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997), the Third Circuit has held that making a good-faith request for accommodation is protected activity for purposes of the ADA's anti-retaliation provision. Shellenberger, 318 F.3d at 191.
To make out a prima facie case of illegal 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 relationship between the protected activity and the adverse action. Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 759 (3d Cir. 2004); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002). The same McDonnell Douglas burden-shifting framework described above with respect to ADA discrimination claims also applies to ADA retaliation claims. In all cases involving alleged retaliation, a plaintiff must prove that retaliatory animus played a role in the employer's decision-making process and that it had a determinative effect on the outcome of the process. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997). That burden always remains with the plaintiff. Id.
Turning to the plaintiff's allegations, in his complaint Northern filled in spaces on a printed form to indicate that he experienced instances of discrimination relating to his low vision and back conditions on April 20, 2016, May 1, 2016, and September 18, 2017. It is not clear what may have occurred on any of those dates because the plaintiff has not provided any allegations to explain it. He maintains that the University failed to accommodate his disabilities, retaliated against him when he sought accommodation or suggested that he might need to have medical procedures done, and permitted a hostile work environment to exist within the office that may or may not have been related to his alleged disabilities. (Compl., at 4.) However, his allegations in this regard are little more than a collection of conclusions; the plaintiff has not provided factual allegations to explain the nature of what actually occurred.
The plaintiff also claims that he waited until October 3, 2017, to file a claim with the EEOC. To the extent the plaintiff is alleging that the defendants violated Title VII or the ADA or the PHRC on April 20, 2016, or May 1, 2016, his claims may very well be barred as untimely. Both Title VII and the ADA require that a charge of discrimination be filed with the EEOC within 300 days of the alleged discrimination, or within 180 days if the charge is not dually filed with the PHRC. 42 U.S.C. § 2000e-5(e); 42 U.S.C. § 12117. The PHRA requires that charges of discrimination be filed within 180 days of the discrimination alleged. 43 P.S. § 959(h). Although we find that the plaintiff's allegations, as pled, are insufficient to state a claim on their merits, we put him on notice that his claims may also be subject to attack at least in part on statute-of-limitations grounds. However, we believe that any decision regarding the application of the statute of limitations governing his discrimination and retaliation claims should await the filing of an amended complaint and subsequent dispositive motions, when the timeliness issue may be better assessed.
The most the plaintiff alleges is that Defendant Andretta "perpetuated the hostile environment" when she told him that she "would not make accommodations that are made for others with injury or with a disability if I took the time to have surgery to improve my vision and have surgery for a rupture [sic] disc. She told me that she would take steps to ensure that I would not succeed at reaching my goals once I returned to work." (Compl., at 7.) Although the plaintiff hints at facts that may ultimately be enough to make out a claim under the ADA, as it is currently cast, the complaint is both too limited, too vague, and too conclusory to state a claim for either discrimination or retaliation.
The plaintiff offers only limited factual allegations as to what his disability may be; he has not alleged that he actually sought accommodation for his disability; and he did not allege that the University did anything in response to a request that he may or may not have made. Instead, he alleges that one of his co-workers made some vaguely threatening remarks to hurt his career if he pursued accommodation. More is needed to articulate a claim for discrimination or retaliation, and the plaintiff should provide additional detail and narrative explanation in an amended complaint.
The plaintiff also suggests that he was harassed at work, possibly on account of his vision-related disability or a ruptured disc. In order to state an ADA claim for discrimination on a hostile work environment theory in this context, the plaintiff needs to allege facts showing that "(1) he is a qualified individual with a disability; (2) he was subject to unwelcome harassment because of his disability or request for an accommodation; (3) the harassment was sufficiently severe or pervasive to alter the conditions of his employment; and (4) his employer knew or should have known of the harassment and failed to take prompt effective remedial action." McGlone v. Philadelphia Gas Works, 733 F. App'x 606, 611-12 (3d Cir. 2018) (citing Walton v. Mental Health Ass'n of Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999)). In this case, the plaintiff has not alleged enough facts to show that he faced severe or pervasive harassment because of his disability or a request for accommodation, and he has not alleged facts to show that the University knew or should have known about Ms. Andretta's alleged harassment of him. The plaintiff simply needs to allege more facts to articulate this claim.
V. RECOMMENDATION
For the foregoing reasons, it is recommended that the defendants' motion to dismiss the complaint (Doc. 14) be GRANTED, and that the plaintiff be given leave to file an amended complaint within 30 days to address the pleading defects that we have identified.
"[I]f a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile." Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). Courts are encouraged to grant leave to amend within a specified period of time, and to expressly advise plaintiffs that failure to amend within that set period of time may result in dismissal of the complaint with prejudice. It is recommended that the Court follow that course here and give the plaintiff 30 days to amend.
We recognize that the plaintiff filed a document that sets forth in more robust, detailed and narrative form a number of factual allegations that more fully explain the basis for his claims. (Doc. 17.) But these allegations were not included in his complaint and were instead set down in a brief or other supplemental document that does not qualify as a pleading under the rules. It is a basic rule of federal civil procedure that a complaint may not be amended or supplemented by allegations made in a supplemental brief. Pennsylvania ex rel. Zimmerman v. Pepsico, 836 F.2d 173, 181 (3d Cir. 1988) ("It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.") (citation omitted). By requiring that the plaintiff file an amended complaint to address all of his claims, and by giving him the opportunity to include additional factual detail and explanation similar to that made in his briefs, the Court and the defendants will be in a better position to evaluate whether or not the plaintiff has sufficient facts to state claims under Title VII, the ADA, and the PHRA.
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 this 19th day of December, 2018.
S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge