Kaminski v. H H Greg, Inc.

BRIEF IN SUPPORT re MOTION to Dismiss

M.D. Pa.October 31, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA : JOSEPH M. KAMINSKI, : Civil Action No. : 16-CV-1691 Plaintiff, : v. : : Document Filed Electronically HHGREGG, INC., : : Defendant. : : MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/Maria Greco Danaher Maria Greco Danaher. (PA #47036) One PPG Place, Suite 1900 Pittsburgh, PA 15222 Telephone: (412) 394-3390 Facsimile: (412) 232-1799 maria.danaher@ogletreedeakins.com Attorneys for Defendant, hhgregg, Inc. Dated: October 31, 2016 Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 1 of 23 i TABLE OF CONTENTS I. STATEMENT OF FACTUAL ALLEGATIONS ................................................1 A. Failure to Promote to Manager, but Appointment as “BCR” .........................1 B. Failure to Accommodate Wrist Injury.............................................................3 C. Retaliation........................................................................................................4 D. Suspension and Resignation ............................................................................5 II. PROCEDURAL HISTORY .................................................................................6 III.QUESTIONS FOR REVIEW...............................................................................7 A. Motion to Dismiss............................................................................................8 IV.LEGAL ARGUMENT..........................................................................................9 A. Plaintiff’s Title VII, ADEA, ADA, and PHRA Claims Should Be Dismissed under Rule 12(b)(6) Due to Plaintiff’s Failure to Timely Exhaust His Administrative Remedies. ...........................................................9 B. Even if Plaintiff’s Complaint Procedurally Survives, Plaintiff’s Claims Should Be Dismissed under Rule 12(b)(6) for Failure to State a Claim under Iqbal and Twombly.................................................................12 VII. CONCLUSION ................................................................................................16 Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 2 of 23 ii TABLE OF AUTHORITIES Page(s) Cases Abramson v. William Paterson College of New Jersey, 260 F.3d 265 (3d Cir. 2001) ...............................................................................15 Anjelino v. New York Times Co., 200 F.3d 73 (3d Cir. 1999) .................................................................................11 Ashcroft v. Iqbal, 566 U.S. 662 (2009)....................................................................................8, 9, 12 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)....................................................8, 9, 12, 13 Bright v. Westmoreland Cnty., 380 F.3d 729 (3d Cir. 2004) .................................................................................1 Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465 (3d Cir. 2001) .....................................................................9, 10, 11 Churchill v. Star Enterprises, 183 F.3d 184 (3d Cir. 1999) (ADA) ...............................................................9, 10 Creasy v. Novelty, Inc., No. CIV.A. 404CV2296, 2005 WL 1652441 (M.D. Pa. July 6, 2005) ...................................................................................................................14 Estelle v. Gamble, 429 U.S. 97, 106 (1976)........................................................................................9 Fowler v. UPMC Shadyside, 568 F.3d 203 (3d Cir. 2009) .................................................................................8 Haines v. Kerner, 404 U.S. 519, 520-21(1972) .................................................................................9 Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266 (3d Cir. 2012) ...............................................................................13 Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 3 of 23 iii Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977)....................................................................................10 Postie v. Frederick, No. 3:14-cv-00317, 2015 WL 7428616 (M.D. Pa. Nov. 23, 2015) .....................9 Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997) ...................................................................11 Ruehl v. Viacom, Inc., 500 F.3d 375 (3d Cir. 2007) .................................................................................9 Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010) .................................................................................9 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002).......................................14 Watson v. Eastman Kodak Co., 235 F.3d 851 (3d Cir. 2000) .........................................................................10, 11 Williams v. Phila. Housing Auth. Police Dept., 380 F.3d 751 (3d Cir. 2004) ...............................................................................12 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1996) ...............................................................................10 Statutes Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ..........................................................................................................1, 7, 9, 10 Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. .............passim Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq...............passim Pennsylvania Human Relations Act, 43 Pa. C.S. § 951, et seq. .......................passim Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 4 of 23 1 Defendant hhgregg, Inc. respectfully submits this memorandum of law in support of its motion to dismiss pro se Plaintiff Joseph M. Kaminski’s (“Plaintiff”) Complaint under Fed. R. Civ. P. 12(b)(6). Plaintiff’s claims fail because they were not raised with the EEOC within 300 days of the alleged discriminatory conduct asserted in Plaintiff’s Complaint, and thus, are time barred. Plaintiff has also failed to exhaust his administrative remedies with respect to the claims raised in his Complaint, as required to sustain a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq., the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. C.S. § 951, et seq. Consequently, as set forth in more detail below, Defendant respectfully requests that the Court dismiss Plaintiff’s Complaint in its entirety. I. STATEMENT OF FACTUAL ALLEGATIONS1 A. Failure to Promote to Manager, but Appointment as “BCR” 1 For the purposes of this Motion to Dismiss only, Defendant must accept as true the factual allegations in Plaintiff’s Complaint. See Bright v. Westmoreland Cnty., 380 F.3d 729, 735 (3d Cir. 2004) (in deciding a motion to dismiss, the court must construe the facts alleged in the Complaint in the light most favorable to the non-movant). Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 5 of 23 2 Plaintiff alleges that on August 27, 2010, he discovered that an individual under age 40 was promoted to the position of Manager in Training (“MIT”). See Plaintiff’s Complaint, Dkt. No. 1 at p. 7 of 9. Plaintiff further alleges that he was better qualified than the selected individual. Id. Plaintiff also alleges that when he questioned the store manager about the position, he was told the other candidate was more “relocatable,” since he is younger and not married. Plaintiff claims that he informed the store manager that he felt the action was discriminatory and asked to speak with the regional manager. Id. On September 24, 2010, Plaintiff alleges that he was appointed to Business Commercial Representative (“BCR”) for his store without his knowledge. See Plaintiff’s Complaint, Dkt. No. 1 at p. 7 of 9. Plaintiff states that no interviews were conducted to fill the position and it came as a surprise to his sales manager. Id. Plaintiff believes the appointment was designed to appease his complaints about being discriminated against for the MIT position. Id. Plaintiff then alleges that on September 29, 2010, he attended a company training in Oxford Valley. See Plaintiff’s Complaint, Dkt. No. 1 at p. 7 of 9. Plaintiff states that during the trip to Oxford Valley he told his manager that he believed he was being discriminated against and that he was uncomfortable with his appointment to the BCR position. Id. Plaintiff further alleges that he attempted Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 6 of 23 3 to speak to his Regional Manager (“RM”) at the training, but that the RM “physically” avoided him. Id. B. Failure to Accommodate Wrist Injury On or about October 4, 2010, Plaintiff alleges a new General Manager started at his store. See Plaintiff’s Complaint, Dkt. No. 1 at p. 8 of 9. On October 9, 2010, Plaintiff was informed of a BCR training to be held in Oxford Valley on October 19, 2010. Id. Plaintiff alleges that he told his sales manager he would need a ride because he could not drive that distance due to a wrist injury. Id. Plaintiff alleges that the new GM would not make “accommodations” for transportation to the BCR training. Id. On October 14 and 15, 2010, Plaintiff claims he contacted the Human Resources representative who was handling his workers’ compensation claim to tell her that no “accommodations” were being made to get him to the required training. See Plaintiff’s Complaint, Dkt. No. 1 at p. 8 of 9. Plaintiff claims he was told that training would be held that he could attend when his injury healed. Id. Plaintiff claims that on October 20, 2010 he found he had been removed from the BCR position when he saw he was not listed as the BCR on sales reports or the company directory. See Plaintiff’s Complaint, Dkt. No. 1 at p. 8 of 9. Plaintiff contacted Human Resources to complain that this was unfair and in retaliation for his request for “accommodation” to attend the BCR training. Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 7 of 23 4 Plaintiff then alleges that on October 21, 2010 he was recorded as late by the GM although he had requested a later start time from his sales manager due to a migraine. See Plaintiff’s Complaint, Dkt. No. 1 at p. 8 of 9. Plaintiff claims that the “late” did not follow rules set forth in the employee handbook and that he complained to the sales and operations managers. Id. On October 27, 2010, Plaintiff claims he attended a conference call with the GM, his sales manager, and Human Resources. He claims that Human Resources told him that they did not know about his appointment to the BCR position and that if they had it would have been “squashed” due to his workers’ compensation status and wrist injury. Id. Plaintiff further claims that he was told that because he did not hold the BCR position no accommodations were needed to be made for him to attend the training. Id. According to Plaintiff, Human Resources considered the matter closed even though he stated he did not consider it closed and claimed it was further retaliation. Id. C. Retaliation Plaintiff also alleges that on November 4, 2010, he met with the RM to complain about discrimination and retaliation. See Plaintiff’s Complaint, Dkt. No. 1 at p. 8 of 9. Plaintiff describes the meeting as fruitless because the RM stated he did not think there was any wrong doing and was “clueless” as to the incidents Plaintiff raised. Id. Plaintiff then alleges that in November and December 2010 Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 8 of 23 5 numerous invoices were modified to reduce/eliminate the commissions due to him. Id. On December 17, 2010, Plaintiff claims he was told by the GM that he needed to go to the break room while waiting for his ride. Plaintiff alleges that this was never a rule and no one else was told to do this at any time. See Plaintiff’s Complaint, Dkt. No. 1 at p. 9 of 9. On December 20, 2010, Plaintiff asserts that he reported a sale that had been “hijacked” by the store in Dickson City. Id. Plaintiff alleges that he was going to lose his commission because the GM at Dickson City transferred the deposit he took for a sale and re-commissioned it to an employee in his store. Id. Plaintiff claims he brought this to the attention of his sales manager, who thought it was suspicious and wrong. Id. Plaintiff states that he discussed the “hijacked” sale with his sales manager and operations manager on December 21, 2010. See Plaintiff’s Complaint, Dkt. No. 1 at p. 9 of 9. Plaintiff alleges that both agreed that it was unusual and unfair and contacted the GM. Id. Plaintiff asserts that the GM told them the matter would be taken care of the next day, but no action was taken. Id. Plaintiff claims he decided to complain about the actions of the Dickson City GM. Id. D. Suspension and Resignation Plaintiff alleges that he came into work early on December 23, 2010 to complain to his GM. See Plaintiff’s Complaint, Dkt. No. 1 at p. 9 of 9. Plaintiff Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 9 of 23 6 states that the GM asked to move to his office to discuss, but Plaintiff refused saying he would not go without witnesses. Id. Plaintiff alleges that the GM refused to allow him witnesses. Id. Plaintiff then alleges that he told the GM that he believed the Dickson City GM’s actions, as well as his own GM’s, were that of a “common thief” and that he would be contacting Human Resources. Id. Plaintiff further alleges that as he was taking off his coat and clocking in, the GM told him that he was suspended. Id. Plaintiff claims that he was not given a reason for the suspension and proceeded to call the Human Resources hotline. Id. Plaintiff states that he got voice mail and left a message because he was unable to get a live person. Id. Plaintiff alleges that the GM told him to leave. He left the building and contacted his sales manager. Id. Plaintiff states that on January 4, 2011, he mailed his resignation to the store to be effective January 5, 2011. II. PROCEDURAL HISTORY Plaintiff alleges in his Complaint that “it is [his] best recollection” that he filed a charge with the Equal Employment Opportunity Commission (“EEOC”) on April 4, 2011. However, the Charge of Discrimination (the “Charge”), which forms the basis of Plaintiff’s Complaint in the instant matter, demonstrates otherwise. Plaintiff signed and dated three times. Each time he dated the document with “April 30, 2012.” Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 10 of 23 7 In light of this factual and procedural history, Plaintiff’s lawsuit should be dismissed under Fed. R. Civ. P. 12(b)(6) because Plaintiff’s claims are time-barred. Further, as will be explored in greater detail below, Plaintiff has failed to allege sufficient facts to state a claim for discrimination or harassment based on his disability, or any class protected by Title VII. Thus, even if this Court were not to grant Defendant’s motion on procedural grounds, dismissal of Plaintiff’s Title VII and ADA claims should be dismissed for failure to state a claim under Rule 12(b)(6). III. QUESTIONS FOR REVIEW 1) Has Plaintiff failed to timely exhaust his administrative remedies, such that dismissal of his Title VII, ADA, ADEA, and PHRA claims, or alternatively, a grant of summary judgment in favor of hhgregg, is appropriate? Suggested Answer: Yes 2) Has Plaintiff failed to allege that he is disabled, such that dismissal of his disability discrimination claims is appropriate? Suggested Answer: Yes. 3) Has Plaintiff failed to state a claim under Title VII, warranting dismissal of these claims? Suggested Answer: Yes. Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 11 of 23 8 LEGAL STANDARD A. Motion to Dismiss A complaint must be dismissed when it fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Ordinarily, the claimant must plead “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corporation v. Twombly, the Supreme Court of the United States held that, to survive a motion to dismiss, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. 544, 545 (2007). Thus, a plaintiff is required to plead more than “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). Instead, “a plaintiff must show that the allegations of his or her complaint are plausible” and a “complaint has to ‘show’ such an entitlement with its facts.” Fowler v. UPMC Shadyside, 568 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 566 U.S. at 677-80). “But where the well- pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but has not ‘show[n]’-‘that the pleader is entitled to relief.’” Iqbal, 566 U.S. at 679 (emphasis added).2 2 While Defendant acknowledges that the court must liberally construe a pro se Complaint, dismissal is still appropriate where it is clear that the plaintiff can Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 12 of 23 9 The Third Circuit has explained that to determine the sufficiency of a complaint under the standard set forth in Iqbal and Twombly, a district court must do the following: First, the court must tak[e] note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of the truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). IV. LEGAL ARGUMENT A. Plaintiff’s Title VII, ADEA, ADA, and PHRA Claims Should Be Dismissed under Rule 12(b)(6) Due to Plaintiff’s Failure to Timely Exhaust His Administrative Remedies. Before a plaintiff may bring a claim in court under Title VII, the ADEA, the ADA, or the PHRA, he must first exhaust his administrative remedies by filing a timely Charge of Discrimination with the appropriate administrative agency. Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 469-70 (3d Cir. 2001) (Title VII and PHRA); Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir. 1999) (ADA); Ruehl v. Viacom, Inc., 500 F.3d 375, 382 (3d Cir. 2007) (ADEA). prove no set of facts that would entitle him to relief. Postie v. Frederick, No. 3:14-cv-00317, 2015 WL 7428616, at *2 (M.D. Pa. Nov. 23, 2015) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 13 of 23 10 In Pennsylvania, a Charge under Title VII, the ADEA or the ADA must be filed with the EEOC within 300 days of the alleged unlawful employment practice. Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000) (Title VII and ADEA); Churchill, 183 F.3d at 190 (“a party who brings an employment discrimination claim under Title I of the ADA must follow the administrative procedures set forth in Title VII”). Similarly, a plaintiff must raise claims under the PHRA in an administrative complaint filed with the Pennsylvania Human Relations Commission (“PHRC”) within 180 days of the alleged act of discrimination. See Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1996) (“If a plaintiff fails to file a timely complaint with the PHRC, then he or she is precluded from judicial remedies under the PHRA”); 43 P.S. § 959(h). Upon receipt of a Charge, the EEOC is required to investigate the complainant’s allegations, “and the complainant must allow a minimum of 180 days for the EEOC investigation to proceed.” Burgh, 251 F.3d at 470 (citing Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977); 42 U.S.C. § 2000e- 5(f)(1)). After 180 days have passed, a plaintiff is permitted to request a right to sue letter. Id. Upon receipt of a right to sue letter, a plaintiff must file a complaint in the appropriate district court within 90 days. Id. Filing a Charge with the EEOC is an “essential part[ ] of the statutory plan, designed to correct discrimination through administrative conciliation and Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 14 of 23 11 persuasion if possible, rather than by formal court action.” Anjelino v. New York Times Co., 200 F.3d 73, 93 (3d Cir. 1999) (citation omitted). The requirement is “meant to ‘provide courts with the benefit of an agency’s expertise, and serve judicial economy by having the administrative agency compile the factual record.’” Id. at 87 (quoting Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997)). Accordingly, a district court may only consider matters under Title VII that have been properly raised before the EEOC. Id. at 93. Failure to exhaust administrative remedies in a timely manner is an affirmative defense in the nature of statute of limitations, and is an appropriate ground for dismissal under Rule 12(b)(6). Anjelino, 200 F.3d at 87-88. 1. Plaintiff’s Filing with the EEOC Was Untimely Plaintiff failed to file a Charge with the EEOC within 300 days of the alleged discriminatory actions, and thus, Plaintiff’s Title VII, ADEA, and ADA claims are time-barred. See Watson, 235 F.3d at 854 (Charge must be filed with the EEOC within 300 days of the alleged unlawful employment practice). Further, the PHRA requires that complaints be filed with the Pennsylvania Human Relations Commission (“PHRC”) within 180 days of the unlawful employment practice. See Burgh, 251 F.3d at 475 (citing 43 Pa. C.S. § 959(h)) (the PHRA requires that claims first be brought to the PHRC within 180 days of the discriminatory action). Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 15 of 23 12 Plaintiff resigned from employment with Defendant on January 5, 2011, and all alleged statements and harassment by anyone at Defendant are alleged to have occurred on or prior to that date. Plaintiff’s Charge was signed and dated on April 30, 2012-481 days after Plaintiff’s resignation date. Accordingly, Plaintiff’s filing was untimely and, thus Plaintiff’s Title VII, ADEA, ADA, and PHRA claims must be dismissed. B. Even if Plaintiff’s Complaint Procedurally Survives, Plaintiff’s Claims Should Be Dismissed under Rule 12(b)(6) for Failure to State a Claim under Iqbal and Twombly. 1. Plaintiff Fails to State a Claim for Disability Discrimination under the ADA, as He Does Not Allege That He Is Disabled. Even assuming Plaintiff had complied with all administrative prerequisites, his Complaint fails to state a claim under the ADA. To establish a prima facie case of disability discrimination under the ADA, a plaintiff must allege: “(1) that he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.” Williams v. Phila. Housing Auth. Police Dept., 380 F.3d 751, 761 (3d Cir. 2004). Plaintiff’s Complaint is devoid of sufficient factual allegations “to raise a right to relief above the speculative level” for his claims of disability discrimination and therefore, such Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 16 of 23 13 claims should be dismissed. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007). Plaintiff has not alleged any facts which support his contention that he is “disabled.” A disability is “a physical or mental impairment that substantially limits a major life activity, a record of such an impairment, or being regarded as having such an impairment.” 42 U.S.C. § 12102(1). While the ADAAA was clearly intended to broaden the types of impairments covered as “disabilities,” it is still the case that “not every impairment will constitute a disability.” 29 C.F.R. § 1630.2(j)(ii). Indeed, a temporary non-chronic impairment of short duration is not a disability covered under the ADA. See Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012). At most, Plaintiff alleges that he had some unspecified type of wrist injury during his employment with Defendant. It is not clear from Plaintiff’s Complaint, but it appears that Plaintiff alleges this was a work-related injury for which he sought workers compensation benefits. Further, it appears from Plaintiff’s Complaint that this injury was temporary and that he had a discussion with Defendant’s Human Resources representative indicating that injury would heal. Moreover, Plaintiff has not pleaded any facts to show that his “wrist injury” substantially limits a major life activity. Plaintiff alleges only that he was unable to drive long distances while recovering from his injury. An impairment that does not Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 17 of 23 14 substantially limit a major life activity is not a disability, and therefore is not covered by the ADA. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). Courts may consider several factors in determining whether an individual is substantially limited in a major life activity: “(i) [t]he nature and severity of the impairment; (ii)[t]he duration or expected duration of the impairment; and (iii)[t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2)(i)-(iii). Here, Plaintiff has not pleaded any facts to show the nature and severity of his impairment, the duration of the impairment, or the impact of or resulting from the impairment. Therefore, Plaintiff has not pleaded sufficient facts to show that he has a disability within the meaning of the ADA. See Creasy v. Novelty, Inc., No. CIV.A. 404CV2296, 2005 WL 1652441, at *2 (M.D. Pa. July 6, 2005) (dismissing plaintiff’s ADA claim where plaintiff failed to plead a major life activity that was substantially limited by his impairment). Accordingly, Plaintiff’s ADA claim must be dismissed for failure to state a claim. 2. Plaintiff Fails to State a Claim under Title VII. Similarly, Plaintiff has failed to state a claim under Title VII. Title VII makes it unlawful for an employer to discriminate against any individual because of his or her race, color, national origin, religion, or sex. 42 U.S.C. § 2000e- Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 18 of 23 15 2(a)(1). In order to set forth a prima facie disparate treatment claim under Title VII, Plaintiff must allege that (1) he is a member of a protected class, (2) he was qualified for his position and suffered an adverse employment action, and (3) nonmembers of the protected class were treated more favorably. See Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 281-2 (3d Cir. 2001). Here, Plaintiff has failed to allege that he is a member of any class protected under Title VII. Instead, he has merely checked the box for Title VII under “Basis for Jurisdiction.” See Complaint, Dkt. No. 1 at p. 3 of 9. However, under “Statement of Claim,” Plaintiff alleges only that he has been discriminated against on the basis of age and disability. See Complaint, Dkt. No. 1 at p. 4 of 9. Absent any allegations that Plaintiff has suffered discrimination on the basis of race, color, gender/sex, religion or national origin, his claim under Title VII cannot stand. Accordingly, Plaintiff’s Title VII claim must also be dismissed for failure to state a claim. Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 19 of 23 16 VII. CONCLUSION For all of the foregoing reasons, Defendant hhgregg, Inc. respectfully requests that the Court grant its Motion and dismiss Plaintiff’s Complaint in its entirety with prejudice. Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/Maria Greco Danaher Maria Greco Danaher. (PA #47036) One PPG Place, Suite 1900 Pittsburgh, PA 15222 Telephone: (412) 394-3390 Facsimile: (412) 232-1799 maria.danaher@ogletreedeakins.com Attorneys for Defendant, hhgregg, Inc. Dated: October 31, 2016 Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 20 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA : JOSEPH M. KAMINSKI, : Civil Action No. : 16-CV-1691 Plaintiff, : v. : : HHGREGG, INC., : : Defendant. : : CERTIFICATE OF COMPLIANCE I hereby certify, as required by Local Rule 7.8, that the word count does not exceed 5,000 words. Rather, the word count is 3,742 words per the word count features used in the undersigned’s word processing system. Dated: October 31, 2016 /s/ Maria Danaher Attorney for Defendant 26705853.1 Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 21 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA : JOSEPH M. KAMINSKI, : Civil Action No. : 16-CV-1691 Plaintiff, : v. : : HHGREGG, INC., : : Defendant. : : CERTIFICATE OF CONCURRENCE I, Maria Greco Danaher, hereby certify that, on October 31, 2016, our firm attempted to seek pro se Plaintiff’s concurrence by e-mail regarding the filing of the instant Motion to Dismiss Plaintiff’s Complaint. As of the time of this filing, Plaintiff has not concurred to the filing of the instant Motion. Dated: October 31, 2016 /s/ Maria Greco Danaher Attorney for Defendant 26705798.1 Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 22 of 23 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the within Memorandum of Law in Support of Defendant's Motion to Dismiss Plaintiff’s Complaint was served this 31st day of October, 2016, using First Class U.S. Mail and email to pro se Plaintiff Joseph M. Kaminski at the following address: Joseph M. Kaminski 10 Tory Court Nanticoke, PA 18634 Joeemail53@gmail.com /s/ Maria Greco Danaher Counsel for Defendant Case 3:16-cv-01691-MEM-KM Document 8 Filed 10/31/16 Page 23 of 23 Postie v. Frederick, Not Reported in F.Supp.3d (2015) 2015 WL 7428616 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 7428616 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Frederick A. Postie, Plaintiff, v. Sergeant Duane Frederick, et al., Defendants. CIVIL ACTION NO. 3:14-CV-00317 | Signed 11/23/2015 Attorneys and Law Firms Frederick A. Postie, Mercer, PA, pro se. Eric M. Brown, Siana, Bellwoar & McAndrew LLP, Chester Springs, PA, for Defendant. MEMORANDUM KAROLINE MEHALCHICK, United States Magistrate Judge *1 This is a pro se action for damages filed by Plaintiff Frederick Postie, an inmate currently incarcerated at the State Correctional Institution-Muncy (“SCI-Muncy”) in Lycoming County, Pennsylvania. 1 An amended complaint was filed in this matter on June 8, 2015, asserting claims under state law and pursuant to 42 U.S.C. § 1983 against the three remaining Defendants: the municipality of Rush Township, located in Schuylkill County, Pennsylvania, and Rush Township police officers Duane Frederick and Adam Sinton. (Doc. 32). On June 30, 2015, the Defendants filed a motion to dismiss the amended complaint. (Doc. 35). For the reasons stated below, the motion is granted and the Court will dismiss Postie's amended complaint without prejudice. 1 All Defendants named in Postie's initial complaint filed a joint motion to dismiss on June 20, 2014. (Doc. 15). The undersigned United States Magistrate Judge recommended that the motion to dismiss be granted. (Doc. 22). On March 17, 2015, the District Court granted the motion to dismiss in part and denied it in part, dismissing two Defendants from the case and several causes of action with prejudice, but allowing other claims to proceed and directing Postie to file an amended complaint. (Doc. 29). I. MOTION TO DISMISS STANDARD Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has 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 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (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, 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). 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 action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court of the United States 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 Case 3:16-cv-01691-MEM-KM Document 8-1 Filed 10/31/16 Page 1 of 9 Postie v. Frederick, Not Reported in F.Supp.3d (2015) 2015 WL 7428616 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 assumption of truth.” Iqbal, 556 U.S. at 679. In deciding a Rule 12(b)(6) motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). *2 A document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520- 21 (1972). The Third Circuit has instructed that, a district court must permit a curative amendment if a complaint is vulnerable to dismissal for failure to state a claim, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). II. DISCUSSION Postie brought this action pursuant to 42 U.S.C. § 1983. Section 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, a plaintiff must establish that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). A. FIFTH AND FOURTEENTH AMENDMENT CLAIMS In his amended complaint, Postie alleges that his rights were violated under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. (Doc. 32, at 7). However, the District Court dismissed Postie's Fifth and Fourteenth Amendment claims with prejudice in ruling on Defendants' first motion to dismiss. (Doc. 29, at 2). Postie therefore is barred from reasserting these two causes of action under the “law of the case” doctrine. See Arizona v. California, 460 U.S. 605, 618 (1983) (“[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.”). Postie himself concedes as much in his brief in opposition to Defendants' motion to dismiss the amended complaint, noting that the remaining allegations in his amended complaint are “more properly analyzed in the context of a Fourth Amendment claim....” (Doc. 39, at 4). Accordingly, the Court construes the amended complaint as asserting § 1983 claims solely under the Fourth Amendment. B. FOURTH AMENDMENT CLAIMS Defendants next contend that Postie has failed to plead sufficient facts to state a valid Fourth Amendment claim. (Doc. 36, at 13). An amended complaint must be a pleading that stands by itself without reference to the original complaint. Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992). Although detailed factual allegations are not necessary, a “plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions.” Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Here, Postie does not plead specific facts with regard to any of the three remaining Defendants as is needed to push his civil rights claims over “the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557. 1. False Arrest Claim Against Sergeant Frederick *3 Postie alleges that Frederick fraudulently procured an arrest warrant by providing false information that was essential to the finding of probable cause. (Doc. 32, at 4). “[A] plaintiff may succeed in a § 1983 action for false arrest made pursuant to a warrant if the plaintiff shows, by a Case 3:16-cv-01691-MEM-KM Document 8-1 Filed 10/31/16 Page 2 of 9 Postie v. Frederick, Not Reported in F.Supp.3d (2015) 2015 WL 7428616 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 preponderance of the evidence: (1) that the police officer 'knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant;' and (2) that 'such statements or omissions are material, or necessary, to the finding of probable cause.”' Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000) (quoting Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)). Here, however, Postie only provides conclusory assertions that Frederick made false statements, and that those statements were material to the finding of probable cause. Nowhere on the face of the amended complaint does Postie identify the specific statements that are alleged to be false, or explain why those statements were material to the finding of probable cause. In the brief in support of their motion to dismiss, Defendants contend that the case at bar is analogous to the case of Basile v. Township of Smith, in which Chief Magistrate Judge Lenihan of the United States District Court for the Western District of Pennsylvania granted a motion to dismiss where plaintiffs only offered conclusory allegations in support of their false arrest claim without any specific supporting facts. 752 F. Supp. 2d 643, 657 (W.D. Pa. 2010). This Court agrees that Basile is persuasive in setting out the pleading standard for a claim of false arrest pursuant to a warrant. After disregarding the conclusory statements found in Postie's amended complaint, as is dictated by Iqbal, the remaining allegations contain insufficient facts to state a plausible claim for relief. In his brief in opposition to the motion to dismiss, Postie provides further detail regarding the specific statements in the affidavit of probable cause that Frederick allegedly knew to be false. However, the after-the-fact allegations contained in Postie's brief in opposition cannot serve to bolster the otherwise-insufficient allegations in the amended complaint itself. See Frederico v. Home Depot, 507 F.3d 188, 201-02 (3d Cir. 2007) (“[W]e do not consider after-the-fact allegations in determining the sufficiency of [a] complaint under Rule...12(b)(6).”); Commw. of Pa. Ex. Rel Zimmerman v. PepsiCo., Inc., 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.”). Because the amended complaint is unable to stand by itself with regard to the false arrest claim against Frederick, this claim will be dismissed without prejudice. See Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992). 2. False Imprisonment and Malicious Prosecution Claims Postie also alleges Fourth Amendment claims for false imprisonment and malicious prosecution against Sergeant Frederick and Officer Sinton. “To state a claim for false imprisonment, a plaintiff must establish: (1) that she was detained; and (2) that the detention was unlawful.” James v. City of Wilkes-Barre, 700 F.3d 675, 682-83 (3d Cir. 2012). A malicious prosecution claim requires a showing “that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously...; and (5) the plaintiff suffered deprivation of liberty....” Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). “An officer may...be considered to have initiated a criminal proceeding if he or she knowingly provided false information to the prosecutor or otherwise interfered with the prosecutor's informed discretion.” Gatter v. Zappile, 67 F. Supp. 2d 515, 521 (E.D. Pa. 1999) aff'd, 225 F.3d 648 (3d Cir. 2000). Claims for both false imprisonment and malicious prosecution require the plaintiff to allege a lack of probable cause. See generally Gatter, 67 F. Supp. 2d at 519-21. As stated above in reference to the false arrest claim, however, Postie does not sufficiently allege that probable cause was lacking because Postie fails to specify what information was falsified in the affidavit of probable cause. For this reason, the false imprisonment and malicious prosecution claims must also be dismissed. Defendants also allege that the claims against Officer Sinton must fail because Postie does not show that Sinton was personally involved in the alleged wrongdoing. (Doc. 36, at 18). “A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing.... Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Moreover, “[a]llegations of...actual knowledge and acquiescence...must be made with appropriate particularity.” Rode, 845 F.2d at 1207. Here, because Postie alleges that Frederick procured the warrant and falsified the affidavit of probable cause, he must show that Sinton was personally involved through actual knowledge and acquiescence to the wrongdoing. Postie makes this showing in his amended complaint, alleging that Sinton Case 3:16-cv-01691-MEM-KM Document 8-1 Filed 10/31/16 Page 3 of 9 Postie v. Frederick, Not Reported in F.Supp.3d (2015) 2015 WL 7428616 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 “worked in concert with Defendant Officer Frederick...by having full knowledge that the Affidavit contained false information....” (Doc. 32, at 4). If Postie is able to establish his claim that Frederick provided false information in the affidavit that was essential to the finding of probable cause, then Postie's allegation that Sinton knew the information in the warrant was false would be sufficient evidence of personal involvement to sustain a claim that Sinton effectuated the arrest without probable cause. See Berg v. Cnty. of Allegheny, 219 F.3d 261, 273 (3d Cir. 2000) (“[A]n apparently valid warrant does not render an officer immune from suit if his reliance on it is unreasonable in light of the relevant circumstances.”). 3. Municipal Liability Claim Against Rush Township *4 Postie also asserts a federal civil rights claim under 42 U.S.C. § 1983 against Rush Township, alleging that this municipal Defendant is vicariously liable because the two Defendant police officers allegedly took unlawful actions pursuant to Rush Township policy or custom. (Doc. 32, at 5). In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court of the United States established that municipalities and other local governmental units are included among those “persons” subject to liability under § 1983. Monell, 436 U.S. at 690. Thus, to state a § 1983 claim against a municipality, a plaintiff must allege a constitutional injury that was caused when the municipality took action pursuant to a custom or policy. Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992); see also Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984) (“A plaintiff must identify the challenged policy, attribute it to the [municipality] itself, and show a causal link between execution of the policy and the injury suffered.”). Regardless of any policy or practice a municipality may have adopted, however, liability under Monell requires an underlying constitutional violation. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). As a preliminary matter, Postie's claims against Rush Township under Monell must fail because he has yet to establish an underlying constitutional violation that could be imputed to the municipality. See Heller, 475 U.S. at 799 (“[I]f the [municipal employees] inflicted no constitutional injury on [the plaintiff], it is inconceivable that [the municipality] could be liable....”). Even if Postie had stated sufficient facts to put forth a plausible Fourth Amendment claim against the two Defendant officers, however, his claim for municipal liability still falls short. Postie alleges that Rush Township had a custom of laxity when it came to training and disciplining its officers with regard to civil rights violations. (Doc. 32, at 6). The United States Court of Appeals for the Third Circuit has stated that “a municipality's failure to train police officers only gives rise to a constitutional violation when that failure amounts to deliberate indifference to the rights of persons with whom the police come into contact.” Montgomery v. De Simone, 159 F.3d 120, 126-27 (3d Cir. 1998). Moreover, the failure to train or discipline may only serve as a basis for municipal liability “if the plaintiff can show both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message of approval to the offending subordinate.” Montgomery, 159 F.3d at 127. Here, Postie raises a “pattern of violations” theory and -as the only evidence in support of his allegations of municipal liability-attaches four lawsuits in which the municipality was sued for various alleged Fourth Amendment violations committed by Sergeant Frederick and other Rush Township police officers. 2 (Doc. 32, at 12-53). However, none of the four cases cited by Postie involve alleged misrepresentations in an affidavit of probable cause or otherwise accuse Rush Township police officers of obtaining illegal warrants. Postie fails to explain how these four lawsuits are “similar” to his own case for the purpose of imputing a pattern of violations. See Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011) (holding that four previous instances where defendant district attorney's office had convictions overturned for failing to disclose potentially exculpatory evidence to the opposing party did not constitute a pattern of similar violations sufficient to put the office on notice that its training was inadequate where those four cases did not involve the specific types of evidence that plaintiff alleged the office failed to turn over in his case). 2 The four cases are: Hadesty v. Rush Twp. Police Dep't, No. 3:14-cv-02319 (M.D. Pa.); Hughes v. Hess, No. 3:13-cv-02292 (M.D. Pa.); Gerhard v. Fredericks, No. 3:08-cv-00206 (M.D. Pa.); and Ziegler v. Fredericks, No. 3:07-cv-02156 (M.D. Pa.). *5 Furthermore, Postie points to no specific inadequacies in the Rush Township police training Case 3:16-cv-01691-MEM-KM Document 8-1 Filed 10/31/16 Page 4 of 9 Postie v. Frederick, Not Reported in F.Supp.3d (2015) 2015 WL 7428616 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 program. He does not even allege that any of the four lawsuits he attached resulted in adverse judgments against Rush Township police officers. The Court is left to speculate as to what action or inaction on the part of the municipality could be viewed as endorsing Frederick's alleged actions in the case at bar. See Montgomery, 159 F.3d at 127. The mere existence of these four lawsuits- unaccompanied by any further evidence-does not suffice to show that Rush Township had notice that police officers were inadequately trained with respect to the type of violation (i.e., a fraudulent affidavit of probable cause) that is at issue here. See Connick, 131 S. Ct. at 1360. Because Postie fails to adequately identify a specific Rush Township custom, and fails to establish a causal link between that custom and the harm he suffered in the case at bar, his claim for municipal liability must be dismissed. 3 See McTernan v. City of York, PA, 564 F.3d 636, 659 (3d Cir. 2009); see also Palmer v. Marion Cnty., 327 F.3d 588, 596 (7th Cir. 2003) (“[A]lleged personal knowledge of two incidents of misconduct by correctional officers in a period of one year certainly fails to meet the test of a widespread unconstitutional practice...that is so well settled that it constitutes a custom or usage with the force of law.”). 3 In his brief in opposition, Postie also baldly asserts for the first time that Frederick alone could incur municipal liability on Rush Township because he had policymaking authority as the highest ranking police officer in the Township. (Doc. 39, at 7). However, as stated above, after-the-fact allegations first raised in a brief cannot serve to excuse an otherwise-deficient complaint. Frederico, 507 F.3d at 201-02. Accordingly, this Court will disregard Postie's allegation that Frederick had policymaking authority. C. STATE LAW CLAIMS Postie also asserts a variety of state law claims against Officers Frederick and Sinton, including: false arrest, false imprisonment, assault and battery, malicious prosecution, and abuse of process. (Doc. 32, at 8). Where a district court has dismissed all claims over which it had original jurisdiction, the Court may decline to exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3). Whether a court exercises supplemental jurisdiction is within its own discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). The court's decision should be based on “the values of judicial economy, convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Ordinarily, when all federal law claims have been dismissed and only state law claims remain, the balance of these factors indicates that these remaining claims properly belong in state court. Cohill, 484 U.S. at 350. Finding nothing in the record to distinguish this case from the ordinary one, the balance of factors in this case “point[s] toward declining to exercise jurisdiction over the remaining state law claims.” See Cohill, 484 U.S. at 350 n. 7. Therefore, Postie's state law claims will be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3). III. LEAVE TO AMEND The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). “A district court has 'substantial leeway in deciding whether to grant leave to amend.”' In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564 F. App'x 672, 673 (3d Cir. 2014) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). Denial of leave to amend is appropriate “[w]hen a party fails to take advantage of previous opportunities to amend, without adequate explanation....” Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006). Here, however, there is an adequate explanation for Postie's inability to cure the deficiencies in his original complaint, as the previous motion to dismiss was not decided on the basis of the sufficiency of Postie's factual pleadings and allegations. Accordingly, Postie will be given one final opportunity to file an amended complaint that is “complete in all respects” and “stands by itself...without reference to the complaint already filed.” Young, 809 F. Supp. at 1198. In regard to the § 1983 claims against the Frederick and Sinton, Postie must state the specific false statements or omissions that Frederick provided in his affidavit of probable cause, and provide evidence as to why those misstatements or omissions were material to the ultimate determination of probable cause. In regard to the municipal liability claim against Rush Township, Postie must provide further evidence in an effort to identify a specific municipal custom or policy, and then show a possible causal link where the municipality's actions or inaction could be seen as communicating approval of the constitutional deprivations of which Postie complains. Case 3:16-cv-01691-MEM-KM Document 8-1 Filed 10/31/16 Page 5 of 9 Postie v. Frederick, Not Reported in F.Supp.3d (2015) 2015 WL 7428616 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 6 IV. CONCLUSION *6 Based on the foregoing, Defendants' motion to dismiss (Doc. 35) will be granted and Postie's amended complaint (Doc. 32) will be dismissed without prejudice pursuant to Fed. R. Civ. P. 12(b)(6). However, Postie will be granted leave to amend his complaint within thirty (30) days following the dismissal of his complaint. An appropriate Order follows. All Citations Not Reported in F.Supp.3d, 2015 WL 7428616 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 3:16-cv-01691-MEM-KM Document 8-1 Filed 10/31/16 Page 6 of 9 Creasy v. Novelty, Inc., Not Reported in F.Supp.2d (2005) 2005 WL 1652441 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2005 WL 1652441 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Robert CREASY, Plaintiff v. NOVELTY, INC., Defendant No. Civ.A. 404CV2296. | July 6, 2005. Attorneys and Law Firms Gregory A. Stapp, Mathers, Dincher & Stapp, P.C., Williamsport, PA, for Plaintiff. Benjamin E. Landon, McNerney, Page, Vanderlin & Hall, Williamsport, PA, William P. Carlucci, Fisher Rice Barlett Elion & Wayne, Williamsport, PA, for Defendants. ORDER MCCLURE, J. BACKGROUND: *1 On October 18, 2004, plaintiff Robert Creasy commenced this action in the Middle District of Pennsylvania. The complaint alleges that Creasy's employment was wrongfully terminated by defendant Novelty, Inc. (“Novelty”), in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”), the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), and the Pennsylvania Human Relations Act, 43 Pa.C.S.A. §§ 951-63. Plaintiff alleges that he was discharged from his job because of his age, fifty-five, and because of a physical impairment, sleep apnea. On January 4, 2005, defendant filed its first motion to dismiss. In that motion the defendant asserted that plaintiff had failed to adequately state a claim for relief under the ADA (Count I), because Creasy had only averred that he suffered from sleep apnea and that he had not averred that Creasy had requested or engaged in any efforts to acquire accommodations for his disability from his employer. Likewise, the motion averred that Creasy's complaint was legally deficient to recover a claim under the Pennsylvania Human Relations Act. (Def.'s Mot. Dismiss, Rec. Doc. No. 6.) On April 25, 2005, after a failed attempt at mediation, we granted plaintiff's first motion to amend/correct his complaint in order to address the legal deficiencies Novelty had asserted. That order mooted Novelty's first motion to dismiss. In our April 25, 2005 order we noted that pursuant to Federal Rule of Civil Procedure 15(a) plaintiff was not required to seek leave of court in order to amend the complaint, as defendant's motion to dismiss was not a responsive pleading. On May 9, 2005, Creasy filed his amended complaint. Shortly thereafter, Novelty filed a second motion to dismiss. That motion is now fully briefed and ripe for our review. Novelty's renewed motion to dismiss again asserts that Creasy has deficiently pled facts to assert a claim under the ADA (Count I of Plaintiff's Amended Complaint) as well as the corresponding state claim for violation of the Pennsylvania Human Relations Act based on disability (Count V of Plaintiff's Amended Complaint). For the following reasons we will provide plaintiff's counsel one more opportunity to appropriately plead a claim for relief under the ADA. DISCUSSION: Plaintiff has not moved the court to amend his complaint for a second time. In light of the liberal rules for pleading, however, and our concern that matters be addressed on their merits, we will sua sponte allow plaintiff's counsel one more opportunity to appropriately plead a claim under the ADA. The ADA seeks to protect individuals with disabilities from discrimination by employers. See 42 U.S.C. § 12101(b). Creasy bears the initial burden of establishing a prima facie case of disability discrimination under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 & n. 5 (3d Cir.2003); Bearley v. Friendly Ice Cream Corp., 322 F.Supp.2d 563, 574 (M.D.Pa.2004). To establish a prima facie case under the ADA, Creasy must demonstrate that he: (1) Case 3:16-cv-01691-MEM-KM Document 8-1 Filed 10/31/16 Page 7 of 9 Creasy v. Novelty, Inc., Not Reported in F.Supp.2d (2005) 2005 WL 1652441 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 is disabled within the meaning of the ADA; (2) was qualified to perform the essential functions of his job, with or without accommodation; and (3) suffered an adverse employment decision because of discrimination. See Williams v. Phila. Housing Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir.2004) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999)). At this early pleading stage, Creasy need only make allegations that when taken in light most favorable to him would support a prima facie case. See Amiot v. Kemper Ins. Co., 122 Fed. Appx. 577, 580 (3d. Cir.2004). *2 The ADA defines “disability” as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2); see 29 C.F.R. § 1630.2(g). Importantly, simply having an impairment that does not substantially limit a major life activity is not a disability, and therefore is not covered by the ADA. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). A “substantially limiting” impairment is an impairment that renders an employee “unable to perform a major life activity that the average person in the general population can perform,” or that significantly restricts the employee as to “the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j); see Toyota, 534 U.S. at 195-96. Pertinent factors for the court to consider include: “the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.” 29 C.F.R. §§ 1630.2(j)(2) (i)-(iii); see Toyota, 534 U.S. at 196. Defendant contends, and we agree, that Creasy's amended complaint still does not sufficiently state a claim for relief under the ADA. As to the first element for a claim under the ADA, Creasy avers in his amended complaint that “[t]he Plaintiff has been diagnosed with sleep apnea by Dr. Ralph L. Apuzzio, D.D.S., M.S.D., which constitutes a physical impairment.” (Rec. Doc. No. 20, at 2, ¶ 14 .) Next he pleads that “[t]he condition of sleep apnea substantially limits one or more major life activities in that it can be life threatening and may include high blood pressure and other cardiovascular complications.... At the time of his discharge, Plaintiff had a claim with the Defendant for medical treatment of his sleep apnea, but it was denied.” (Rec. Doc. No. 20, at 2, ¶¶ 15-16.) As defendant notes, we find that Creasy's allegations, as stated in his amended complaint, are legally insufficient to survive a motion to dismiss. Likewise, Plaintiff has not averred that he was qualified to perform the essential functions of his job with or without reasonable accommodation, i.e., the second element of his prima facie case. Plaintiff, however, has sufficiently averred the third and final element of an ADA claim. (See Rec. Doc. No. 20, at 3, ¶¶ 18, 23, 25.) Plaintiff has not stated in his amended complaint what major life activity is substantially limited by his physical impairment, i.e., his sleep apnea. See Toyota, 534 U.S. at 195 (“Merely having an impairment does not make one disabled for purposes of the ADA.”) Plaintiff's brief in opposition states that “use of a CPAP machine in order to sleep clearly makes Creasy's condition a disability, as sleeping is a major life activity. Creasy has now alleged that his condition of sleep apnea is a major life activity.” (Pl.'s Br. Opp'n Mot. Dismiss, Rec. Doc. No. 23, at 6 (internal quotation marks omitted) (citing Rec. Doc. No. 20, at 2, ¶¶ 15-16).) Similarly, Creasy states in the same brief that he “was able to return to work following his three week absence and work without difficulty at his position until his discharge on December 2, 2002.” (Rec. Doc. No. 23, at 3.) Creasy should make such allegations in his complaint and not in his brief in opposition to the motion to dismiss. See Fed.R.Civ.P. 8(a), (e); Jordan v. Fox. Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994) (stating that a court looks to the facts alleged in the complaint to determine whether to dismiss a claim under Rule 12(b)(6)). *3 Liberally construing these statements, and taking note of Creasy's use of a CPAP machine, the court believes that plaintiff should be given one more opportunity to aver all of the necessary elements to an ADA claim in a second amended complaint. Federal Rule of Civil Procedure 15(a) provides that leave to amend should be given when “justice so requires” and is liberally interpreted by the courts. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.1984) (per curiam); see also Fed.R.Civ.P. 8(f) (“All pleadings shall be so construed as to do substantial justice.”); Jordan, 20 F.3d Case 3:16-cv-01691-MEM-KM Document 8-1 Filed 10/31/16 Page 8 of 9 Creasy v. Novelty, Inc., Not Reported in F.Supp.2d (2005) 2005 WL 1652441 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 at 1261 (“[A] case should not be dismissed for failure to state a claim unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations.”). For the reasons set forth above, and because it is still so early in the litigation, we will allow plaintiff another opportunity to make legally sufficient allegations in a second amended complaint so as to support a claim under the ADA. As defendant has already filed two motions to dismiss in this litigation, and we would like to see the matter resolved expeditiously, plaintiff shall have until July 18, 2005 to file his second amended complaint. NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. Defendant's second motion to dismiss is denied. (Rec.Doc. No. 21.) 2. Plaintiff shall have until July 18, 2005 to file a second amended complaint. 3. If plaintiff fails to comply timely with paragraph 2 of this order, the ADA claim (Count I) and the corresponding state law claim averring discrimination on the basis of disability (Count V) will be dismissed. All Citations Not Reported in F.Supp.2d, 2005 WL 1652441 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 3:16-cv-01691-MEM-KM Document 8-1 Filed 10/31/16 Page 9 of 9