Murphy v. Mclane Eastern, Inc. et al

BRIEF IN OPPOSITION re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant's Motion to Dismiss Count IV of the Complaint

M.D. Pa.September 1, 2016

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ANTONIO MURPHY : 124 Mortimer Street : Dunmore, PA 18512, : Plaintiff : CIVIL ACTION - LAW : v. : : No.3:16-CV-1055 MCLANE EASTERN, INC. : Post Office Box 6115 : JURY TRIAL DEMANDED Temple, TX 76503-6115, : : MCLANE/EASTERN, INC. : t/d/b/a McLane PA : 43 Valley View Business Park : Jessup, PA 18434 : : and : : MCLANE COMPANY, INC., : 4747 McLane Parkway : JUDGE JAMES M. MUNLEY Temple, TX 765034 : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COUNT IV OF PLAINTIFF’S COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 1 of 29 i TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................... i TABLE OF AUTHORITIES .................................................................................... ii I. INTRODUCTION ........................................................................................... 1 II. PRELIMINARY MATTERS .......................................................................... 1 A. DEFENDANT’S MOTION IS UNTIMELY FILED .................................. 1 B. DEFENDANT HAS FAILED TO COMPLY WITH THE LOCAL RULES ................................................................................................................ 2 III. COUNTERSTATEMENT OF FACTS ....................................................... 2 IV. COUNTERSTATEMENT OF THE ISSUES .............................................. 7 A. Whether Plaintiff has stated claim(s) upon which relief can be granted in Count IV for Interference and Retaliation in violation of the FMLA, and, thus Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) should be denied. ................................................................................................................. 7 V. LEGAL ARGUMENT AND ANALYSIS .................................................. 7 A. Plaintiff has stated claim(s) upon which relief can be granted in Count IV for Interference and Retaliation in violation of the FMLA, and, thus Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) should be denied. ................................................................................................................. 7 1. The Standard for a Motion to Dismiss .................................................... 7 2. Plaintiff has alleged sufficient claim(s) for an FMLA interference claim. ..............................................................................................................10 3. Plaintiff has alleged sufficient claim(s) for an FMLA retaliation claim. 13 4. Plaintiff’s allegations are not vague and/or speculative. ......................17 5. Assuming, arguendo, that the Court grants any portion of District’s Motion to Dismiss, Plaintiff should be permitted a curative amendment to his Complaint. ................................................................................................20 VI. CONCLUSION ..........................................................................................21 Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 2 of 29 ii TABLE OF AUTHORITIES Cases Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009) ......................................8, 9 Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 550 U.S. 544 (2007) ............. 8, 9, 19 Bertig v. Julia Ribaudo Healthcare Group, No. 15-2224, 2016 U.S. Dist. LEXIS 89938 (M.D. Pa. July 12, 2016) .................................................. 10, 11, 13, 14, 16 Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012) ........................................................... 8 Conley v. Gibson, 355 U.S. 41, 47 (1957) ...............................................................19 Cox v. UPS, No. 15-2013, 2016 U.S. Dist. LEXIS 109688 (M.D. Pa. Aug. 18, 2016)(citations omitted) .......................................................................................17 Duncan v. Chester County Hospital, No. 14-1305, 2016 U.S. Dist. LEXIS 40912 (E.D. Pa. Mar. 29, 2016) ............................................................................... 12, 13 Duran v. Cnty. of Clinton, No. 14-2047, 2015 U.S. Dist. LEXIS 128801 (M.D. Pa. Sept. 25, 2015) ............................................................................................... 14, 15 Edwards v. Borough of Dickson City, 994 F. Supp. 2d 616 (M.D. Pa. 2014) ............ ................................................................................................................. 7, 8, 9, 10 Erickson v. Pardus, 551 U.S. 89 (2007) ..................................................................... 8 Gould Elecs. v. United States, 220 F.3d 169 (3d Cir. 2000) ..................................... 7 Hines v. Twp. of Harrisburg, Pa., No. 07-0594, 2007 U.S. Dist. LEXIS 72822 (W.D. Pa. Sept. 30, 2007) .....................................................................................15 Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173 (3d Cir. 1997) ........................15 Krouse v. Am. Sterilizer Co., 126 F.3d 494 (3d Cir. 1997) ....................................14 Lichtenstein v. UPMC, 691 F. 3d 294 (3d Cir. 2012) .............................................14 Malleus v. George, 641 F.3d 560 (3d Cir. 2011) ....................................................... 9 Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 3 of 29 iii McDonald v. SEIU Healthcare Pennsylvania, No. 1:13-CV-2555, 2014 U.S. Dist. LEXIS 130670, 2014 WL 4672493 (M.D. Pa. Sept. 18, 2014) ...........................15 Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) ...........................8, 19 Ross v. Gilhuly, 755 F.3d 185 (3d Cir. 2014) .........................................................10 Semerenko v. Cendant Corp., 223 F.3d 165 (3d Cir. 2000) ...................................... 7 Statutes 29 U.S.C. §2615(a)(1) ..............................................................................................10 Rules Fed. R. Civ. P. 8 .......................................................................................................19 Fed. R. Civ. P. 8(a) ..................................................................................................... 8 Fed. R. Civ. P. 8(a)(2) ................................................................................................ 8 Federal Rule of Civil Procedure 12(b)(6) ..............................................................1, 7 Federal Rule of Civil Procedure 6(d) ......................................................................... 1 Middle District of Pennsylvania Local Rule 7.1........................................................ 2 Middle District of Pennsylvania LR 7.6 .................................................................... 1 Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 4 of 29 1 I. INTRODUCTION Plaintiff, Antonio Murphy submits this Brief in Opposition to Defendant’s Motion to Dismiss Count IV of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) Defendant’s Motion and supporting Brief were filed on August 15, 2016, and this Brief in Opposition is being filed within fourteen (14) days, plus the additional three (3) days, by M.D. Pa. LR 7.6 and Fed. R. Civ. P. 6(d). For the reasons stated herein, the Motion should be denied. II. PRELIMINARY MATTERS A. DEFENDANT’S MOTION IS UNTIMELY FILED Plaintiff filed his complaint on June 3, 2016, and served the Complaint and a Notice of Lawsuit and Request for Waiver of Service of Summons by United States Mail, Priority Delivery, on June 7, 2016. [True and correct copies of the correspondence, Notice and mail confirmation are attached hereto as Exhibit A]. On July 27, 2016, Plaintiff filed the returned executed Waiver of Summons, and properly indicated that the Waiver was sent on June 7, 2016, with Defendant’s Answer due by August 8, 2016 (Doc. No. 4). Defendant filed the instant motion on August 15, 2016. Defendant’s Motion is untimely, with no justification and no prior approval seeking an extension to file its Motion, and as such, it is respectfully submitted that the Motion should be dismissed as untimely. Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 5 of 29 2 B. DEFENDANT HAS FAILED TO COMPLY WITH THE LOCAL RULES Middle District of Pennsylvania Local Rule 7.1 states in pertinent part: A motion must be written, and shall contain a certification by counsel for the movant that he or she has sought concurrence in the motion from each party, and that it has been either given or denied. M.D. Pa. LR 7.1. Defendant filed this Motion without complying with the requirements of M.D. Pa. LR 7.1. Defendant did not seek Plaintiff’s concurrence or nonconcurrence prior to filing and did not file the required Certificate with the Motion. Given the untimeliness of the Motion, and Defendant’s failure to comply with the Local Rules, it is respectfully submitted that the Motion should be denied. III. COUNTERSTATEMENT OF FACTS The following facts are gleaned from Plaintiffs’ Complaint. Antonio Murphy is an African American man who also suffers from several serious medical conditions which affect his ability to perform major life activities. (¶¶20, 21, 22). Mr. Murphy was hired by Defendant at the McLane location in Jessup, Pennsylvania as a selector on or about November 5, 2012, to work on the “line,” picking products and putting them in totes. (¶¶23, 24). Mr. Murphy was a full time employee, working at least forty (40) hours per week, with frequent opportunities for overtime. (¶25). At the time he was hired, Mr. Murphy was the only African- American employee on the line at the Jessup location. (¶ 26). Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 6 of 29 3 During his employment with McLane, Mr. Murphy did not have any substantial discipline or performance issues. (¶27). He received a satisfactory performance appraisal in 2013, and received several pay raises during his employment. (¶28). In or about July 2014, Mr. Murphy passed out at work, requiring an ambulance to be called for him. (¶29). He was taken to the hospital, where he remained dizzy. (¶29). Due to this condition, Mr. Murphy was forced to use unscheduled time off, and he was absent two (2) days from work. (¶30). At McLane, the policy is that you receive a “duck” for unscheduled time off, and you are only permitted to have two (2) ducks. (¶31). If you use unscheduled time off, you may receive a write up. If you are late, you may receive a write up. (¶31). Following the incident, he was also diagnosed with severe vertigo. (¶32). Mr. Murphy has previously been diagnosed with and suffers from an inoperable brain tumor and a demyelinating disease, which impair several major life activities. (¶33). Demyelinating disease, which has symptoms similar to Multiple Sclerosis (MS), also may contribute to his dizziness. (¶34). McLane was aware of Mr. Murphy’s medical conditions. (¶35). Despite his medical limitations, Mr. Murphy was able to perform the duties and functions of his position. (¶37). Mr. Murphy had conveyed this information to McLane’s Human Resources and his supervisor, either Tom (last name unknown) or Matt (last name unknown), after the incident. (¶38). Tom and Matt are Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 7 of 29 4 Caucasian. (¶¶39, 40). Mr. Murphy also informed Human Resources Manager John Hart, who is also Caucasian, of his medical conditions. (¶¶41, 43). He also informed McLane that he is partially deaf and has difficulty hearing in his left ear. (¶42). Mr. Murphy also provided McLane with a list of his medications. (¶44). However, Mr. Murphy is fortunate that his demyelinating disease is controlled, and that he currently does not require medications to treat his condition. (¶45). At approximately the same time that Mr. Murphy was suffering from his medical issues, McLane hired another African-American employee. (¶46). After Mr. Murphy’s medical emergency, he requested leave pursuant to the Family and Medical Leave Act (FMLA), and was approved for appropriate FMLA leave. (¶¶47, 48). However, because he was concerned about losing his job, he did not use any leave except one day in August, and he would often work through being dizzy. (¶¶48, 49). Shortly after he had been taken from work in an ambulance, had disclosed his medical conditions and had applied for FMLA leave, Mr. Murphy was told by a co-worker that he should be careful because the co-worker had overheard the supervisors talking about him, saying they are looking to try to “get rid” of him. (¶51). Other disabled employees or employees seeking to use FMLA leave have been wrongfully terminated or discharged by Defendant. (¶92). On or about September 18, 2014, Mr. Murphy was working on the “line” and he was backed up. (¶52). Some other employees came to assist him. One was a Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 8 of 29 5 man named Chris (last name unknown) and another was a woman named Lisa Murphy. (¶53). Both Chris and Lisa Murphy are Caucasian, and both were permitted to assist Mr. Murphy when he was backed up. (¶¶54, 55, 56). Lisa Murphy had been employed by McLane for approximately one (1) year, and she and Mr. Murphy had a cordial, friendly working relationship. (¶57). They often joked with each other because their last names were the same, referring to each other as “Murph.” (¶58). After Ms. Murphy completed her tote, she stormed off, but Mr. Murphy was unaware of what triggered her reaction, and continued working, because he still had totes to fill. (¶59). While still working the line, Mr. Murphy was called into the office by the Mr. Hart, who told him that someone had complained about him, but he did not want to tell him who had complained. (¶60). Eventually, however, Mr. Hart claimed that Lisa Murphy had complained that Mr. Murphy had touched her, which he adamantly denied. (¶61). Mr. Hart did not identify any other complaints against Mr. Murphy, and he was sent home from work for the remainder of the day. (¶¶62, 63). Mr. Murphy was not permitted to return to work the following day, September 19 th , and he was told that he would be called on Monday, but by Monday afternoon, he had not been called. (¶¶64, 65). Mr. Murphy called McLane on Monday afternoon, and spoke to someone in Human Resources, who claimed that they did attempt to call him, but that his Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 9 of 29 6 voicemail was not set up on his phone. (¶66). Mr. Murphy did not receive any such telephone call. (¶67). On September 22 nd , Mr. Hart told Mr. Murphy that they were going to terminate his employment. (¶68). Mr. Murphy again denied touching Lisa Murphy, and he was not informed of any other complaint(s) against him when he was terminated. (¶¶69, 70). He was fired on September 22, 2014. (¶71). McLane has a policy regarding sexual harassment, as well as a policy regarding progressive discipline in their handbook. (¶72). As an employee, Mr. Murphy observed and heard other employees say raunchy things, but he did not observe them being disciplined for it. (¶73). Mr. Murphy had never participated in such behavior, nor had he engaged in any type of sexual harassment, and he adamantly denied that he touched Lisa Murphy or acted inappropriately in any way. (¶¶74, 75). At no time was any other complaint made against Mr. Murphy during his nearly two (2) years of employment with Defendant. (¶76). Mr. Murphy has alleged that Defendant’s proffered reason for his termination was merely a pretext to fire an African-American employee with serious medical conditions who had requested and utilized FMLA leave. (¶¶78-80). Defendant sought to “get rid of” him after his medical emergency at work, and his request for FMLA leave. (¶¶80, 91). Mr. Murphy was treated more harshly and unfavorably because he was African-American and because he was disabled and/or perceived as disabled. (¶¶85-89). Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 10 of 29 7 IV. COUNTERSTATEMENT OF THE ISSUES A. Whether Plaintiff has stated claim(s) upon which relief can be granted in Count IV for Interference and Retaliation in violation of the FMLA, and, thus Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) should be denied. Suggested response: In the affirmative. V. LEGAL ARGUMENT AND ANALYSIS A. Plaintiff has stated claim(s) upon which relief can be granted in Count IV for Interference and Retaliation in violation of the FMLA, and, thus Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) should be denied. 1. The Standard for a Motion to Dismiss Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6) . In considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of his claims. Edwards v. Borough of Dickson City, 994 F. Supp. 2d 616, 618 (M.D. Pa. 2014)(citing Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000)). The Court does not consider whether a plaintiff will ultimately prevail. See Id. The defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. Edwards, 994 F. Supp. 2d at 618 (citing Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000)). A pleading that states a claim for relief “must contain . . . a short and plain Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 11 of 29 8 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The statement required by Rule 8(a)(2) must give the defendant “fair notice of what the . . . claim is and the grounds upon which it rests. Edwards, 994 F. Supp. 2d at 618-19 (citing Erickson v. Pardus, 551 U.S. 89, 93 (2007)(per curiam)(quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 550 U.S. 544, 555 (2007). Detailed factual allegations are not required. Twombly, 550 U.S. at 555. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1950 (2009). As such, “[t]he touchstone of the pleading standard is [plausibility].” Edwards, 994 F. Supp. 2d at 618-19 (citing Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012)). A claim has “facial plausibility” when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citations omitted). As explained by the Third Circuit: The Supreme Court’s Twombly formulation of the pleading standard can be summed up thus: “stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest” the required element…This “does not impose a probability requirement at the pleading stage,” but instead “simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of” the necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(citations omitted). Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 12 of 29 9 The inquiry at the motion to dismiss stage is “normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.” Edwards, 994 F. Supp.2d at 619 (citing Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011)). This last step is “a context- specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570.) This means that Plaintiff must present sufficient factual allegations “to raise a reasonable expectation that discovery will reveal evidence of each necessary element.” Id. (citations omitted). The “plausibility standard” does not require a Plaintiff to prove his case at the motion to dismiss stage, but “[w]hen 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.” Edwards, 994 F. Supp. 2d at 619 (citing Iqbal, 556 U.S. at 679). In deciding a motion to dismiss, the Court should consider “the allegations in the complaint, exhibits attached to the complaint, and matters of public record.” Edwards, 994 F. Supp. 2d at 619 (citations omitted). The Court may also consider Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 13 of 29 10 “undisputedly authentic” documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. 2. Plaintiff has alleged sufficient claim(s) for an FMLA interference claim. The FMLA contains two separate provisions prohibiting employers from: “(1) interfering with an employee's exercise of her right to take reasonable leave for medical reasons, and (2) discriminating or retaliating against an employee who exercises this right.” Bertig v. Julia Ribaudo Healthcare Group, No. 15-2224, 2016 U.S. Dist. LEXIS 89938 at *5 (M.D. Pa. July 12, 2016)(citations omitted). Plaintiff has alleged sufficient facts to establish FMLA interference and retaliation claims. When an employee invokes rights granted under the FMLA, an employer may not “interfere with, restrain, or deny the exercise of or attempt to exercise” these rights.” 29 U.S.C. §2615(a)(1). To state an FMLA interference claim, plaintiff must establish: “(1) [he] was an eligible employee under the FMLA; (2) defendants were employers subject to the FMLA's requirements; (3) [he] was entitled to FMLA leave; (4) [he] provided notice to defendants of [his] intention to take FMLA leave; and (5) [he] was denied benefits to which [he] was entitled. Bertig, 2016 U.S. Dist. LEXIS 89938 at *5 (citing Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014)(citations omitted). An employee gives sufficient notice of FMLA leave when he “state[s] a qualifying reason for the needed leave.” Bertig, Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 14 of 29 11 2016 U.S. Dist. LEXIS 89938 at *8 (citation omitted). The FMLA does not require the employee to “expressly assert rights under the Act or even mention the FMLA.” Id. Here, Plaintiff has alleged that after he passed out at work in July 2014 requiring emergency transportation by an ambulance to a hospital, he was forced to use unscheduled time off, which resulted in “ducks” to his attendance record, which negatively impacted his job. Mr. Murphy alleged: 30. Due to this condition [passing out at work], Mr. Murphy was forced to use unscheduled time off, and he was absent two (2) days from work. 31. At McLane, the policy is that you receive a “duck” for unscheduled time off, and you are only permitted to have two (2) ducks. Complaint at ¶¶30-31. Even though Plaintiff requested FMLA leave following this incident, and even though it was clear that Plaintiff had given sufficient notice of the qualifying reasons for his needed leave, he received a “duck” and was not afforded FMLA leave for this absence. Plaintiff alleges in Paragraph 145 as follows: 145. For fear of losing his job, or suffering adverse employment action, Plaintiff did not take his lawfully approved and authorized FMLA leave in the less than two- month period before he was fired, because Plaintiff feared he would receive “ducks” for his attendance. Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 15 of 29 12 Complaint at ¶145. This is distinctive from Mr. Murphy’s additional claim for retaliation, wherein he alleges that he was terminated for a pretextual reason in retaliation for his exercise of his FMLA rights, in Defendant’s effort to “get rid of him.” Although obviously intertwined, Defendant’s action in the issuance of “ducks” for approved FMLA leave denied Plaintiff the benefits of FMLA leave, in that he would suffer a negative employment consequence in the form of a “duck” for approved FMLA leave. These actions are sufficient to establish that Defendant interfered with his “right to take reasonable leave for medical reasons.” This policy, as alleged in the Complaint, wherein an employee who has been approved for FMLA leave receives a “duck” for an unscheduled absence, denies Plaintiff FMLA benefits in that it does not afford him the benefits and protections to which he is entitled. Defendant asserts that “Plaintiff’s only allegations against Defendant relate to discipline and termination for a wholly unrelated matter,” but this is incorrect. As discussed, Plaintiff has alleged that the Defendant’s policy in issuing “ducks” for unscheduled time off, even with FMLA leave approval, interfered with his rights and protections under the FMLA. Defendant cites Duncan v. Chester County Hospital, No. 14-1305, 2016 U.S. Dist. LEXIS 40912 (E.D. Pa. Mar. 29, 2016), but Duncan is readily distinguishable because it is a decision rendered on a motion for summary judgment, with repeated and detailed references to the record developed Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 16 of 29 13 during discovery in the case. Duncan, 2016 U.S. Dist. LEXIS 40912 at *44. Defendant cites Duncan but fails to note that the Court granted summary judgment because “(2) Plaintiff has not stated an interference claim for Defendant’s failure to reinstate him…..because Defendant would have terminated his employment regardless of his FMLA leave request.” Id. The court in Duncan specifically explained, after a lengthy discussion on the merits of Plaintiff’s claims, that “the record evidence shows that Defendant would have fired Plaintiff even if he had not requested [FML leave]” and thus summary judgment was warranted. Id. at *43. Duncan is inapposite to a decision on a motion to dismiss. At this stage of the litigation, in evaluating a motion to dismiss, the burden on the plaintiff is not substantial, and the factual information as set forth sufficiently pleads a claim for interference in violation of the FMLA. Plaintiff has set forth facts sufficient to allege an interference claim, and it is respectfully submitted that Defendant’s Motion should be denied. 3. Plaintiff has alleged sufficient claim(s) for an FMLA retaliation claim. To state an FMLA retaliation claim, the plaintiff must assert that: (1) she engaged in a protected activity under the FMLA, (2) plaintiff experienced an adverse employment action following the protected activity, and (3) a causal link exists between the protected activity and the adverse employment action. Bertig, Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 17 of 29 14 2016 U.S. Dist. LEXIS 89938 at *9 (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)). FMLA retaliation claims require proof of an employer’s retaliatory intent, and, therefore, “courts have assessed these claims through the lens of employment discrimination law.” Lichtenstein v. UPMC, 691 F. 3d 294, 302 (3d Cir. 2012)(decision on defendant’s motion for summary judgment). Claims based upon circumstantial evidence are evaluated under the familiar McDonnell Douglas burden-shifting framework. Id. To properly plead causation, Mr. Murphy’s assertions must “create an inference that a causative link exists between her FMLA leave and her termination.” Bertig, 2016 U.S. Dist. LEXIS 89938 at **8-9 (citing Lichtenstein I, 691 F.3d at 307). “Temporal proximity” between the protected activity and adverse action suffices to create an inference if such temporal proximity is "unduly suggestive.” Id. If temporal proximity is not “unusually suggestive, the court looks at whether the claims, as a whole, may raise the inference.” Id. (citations omitted). The sufficiency of temporal proximity, however, need not be resolved at the motion to dismiss stage. The recent decision of Duran v. Cnty. of Clinton, No. 14- 2047, 2015 U.S. Dist. LEXIS 128801 at **10-12 (M.D. Pa. Sept. 25, 2015) is instructive. In Duran, the Court denied Defendant’s motion to dismiss, noting that Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 18 of 29 15 the argument based upon temporal proximity need not be resolved at the motion to dismiss stage, explaining: Duran alleges sufficient facts for his FMLA retaliation claim to survive defendants' motion to dismiss. Duran requested medical leave on October 5, 2012. His termination became effective one month later, on or about the day he had planned to return to work full-time. Further, Duran’s chronology of his termination process begins only “a few days after” his leave request. At this stage, these factual allegations are adequate to support the causation element of a retaliation claim. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177-79 (3d Cir. 1997)(finding that a four-month gap between the alleged protected activity and retaliatory action did not preclude retaliation claim at pleading stage); McDonald v. SEIU Healthcare Pennsylvania, No. 1:13-CV-2555, 2014 U.S. Dist. LEXIS 130670, 2014 WL 4672493, at *18 (M.D. Pa. Sept. 18, 2014)(Conner, C.J.)(stating in motion to dismiss context that "whether the precise timing of defendants' employment actions establishes causation need not be resolved at this stage in the proceedings"); Hines v. Twp. of [Harrison], No. 07-0594, [2007 U.S. Dist. LEXIS 72822]…(W.D. Pa. Sept. 30, 2007)(declining to "make a determination as to causation in the context of a motion to dismiss" FMLA retaliation claim). Defendants raise the concern that if Duran's allegations of unusually suggestive timing now suffice, then employers would be "precluded from terminating an employee at the conclusion of a contract period where the employee requests FMLA leave at that time." However, because Duran still faces the burden of establishing a causal relation between his FMLA leave and defendants' alleged retaliation at summary judgment, this concern is unwarranted. See Kachmar, 109 F.3d at 178 (emphasizing that legal outcomes respecting the causation element of retaliation claims may differ depending on the stage of the judicial proceeding). The court will thus deny defendants' motion to dismiss Duran's FMLA retaliation claim. Duran, 2015 U.S. Dist. LEXIS 128801at **10-12. In its brief, Defendant does not challenge the first two elements, but challenges the “causal connection” element. At this stage, the burden on the Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 19 of 29 16 plaintiff is not onerous. Mr. Murphy need only set forth sufficient allegations to demonstrate a plausible claim for relief. He has alleged, in specific detail, a causal link demonstrated by the pretextual reason for his termination. In pertinent part, the Complaint alleges: 78. Upon information and belief, the allegations of inappropriate touching were fabricated as a pretext to terminate Mr. Murphy’s employment following the disclosure of his substantial medical problems and his request for FMLA protection. 143. Shortly after Plaintiff sought and received approval for FMLA leave, Plaintiff was advised by a co-worker that he overheard supervisors discussing how to “get rid of” Plaintiff. 48. Mr. Murphy was approved for appropriate FMLA leave, but he did not use any leave except one day in August, and he would often work through being dizzy. Complaint at ¶¶ 78, 143, 48. Plaintiff has alleged that he sought and was approved for FMLA leave after a serious medical incident in July 2014. He also alleged that shortly thereafter, a co-worker overheard his managers and/or supervisors discussing how to “get rid of” him. He has alleged that he used one day of FMLA leave in August 2014, and in September 2014, he was fired for alleged sexual harassment, which he adamantly denies and alleges was pretextual. Similar to the Plaintiff in Bertig, Mr. Murphy properly pleaded a causal link between the protected activity and the adverse employment action, and has satisfied the Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 20 of 29 17 pleading requirement for causation in his FMLA retaliation claim. Accordingly, Defendant’s Motion should be denied. 4. Plaintiff’s allegations are not vague and/or speculative. Defendant argues that certain paragraphs contain allegations that are “incredibly vague” and to which the Court would have to draw “incredible inferences” to bring the claims above speculative level. This is simply untrue. The paragraphs cited by Defendant are not vague, nor are they speculative. Plaintiff’s twenty-eight page, 157-paragraph Complaint contains more than enough factual detail to allow this Honorable Court to draw the reasonable inference that Defendant is liable for the conduct alleged. The law in this Circuit is clear that “all well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, ‘any reasonable reading of the pleadings, the plaintiff may be entitled to relief.’” Cox v. UPS, No. 15-2013, 2016 U.S. Dist. LEXIS 109688 at **3-4 (M.D. Pa. Aug. 18, 2016)(citations omitted). Defendant argues that the “hearsay” in the Complaint renders the complaint so “vague” or “tenuous” that they require the Court to speculate, rather than arrive at a reasonable inference. Defendant’s argument is without merit, it misstates the plaintiff’s burden, and it should be completely disregarded. Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 21 of 29 18 The pleading requirement is not meant to be so restrictive that a plaintiff is denied the benefits of discovery and is required to plead every possible fact necessary to prove his case in his Complaint. Plaintiff has alleged that he was told by a co-worker that his managers and supervisors were discussing how to “get rid of” him shortly after he had a serious medical emergency at work, and shortly after he sought appropriate FMLA leave for his conditions. Plaintiff has alleged this factual information in his Complaint as a component of the basis of his claim(s). The allegation is more than sufficient, and it does not require this Honorable Court to speculate, nor is it so vague that the plain meaning and implication of the allegation is unknown. This argument is inappropriate at the motion to dismiss stage, and is more appropriately made in a motion for summary judgment, after both parties have had the benefit of extensive discovery. These are not “bald assertions” in that they are supported by the 157-paragraph, twenty-eight page complaint which chronicled and detailed the basis for each of Plaintiff’s claims against Defendant. Defendant demands additional factual information regarding the conversation with the co-worker, but such demand does not render the factual allegation vague or speculative. Plaintiff has sufficiently alleged that shortly after he had a medical emergency at work requiring an ambulance, a co-worker, whose name and title is unknown but will be readily available through the discovery Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 22 of 29 19 process, advised Mr. Murphy that his supervisors were discussing how to “get rid of” him. At the motion to dismiss stage, a plaintiff is not obligated to plead specific detailed facts such as how many supervisors were having the conversation. This misstates Plaintiff’s burden, which is likely why Defendant has failed to cite any case law to support its contention that such detailed information would be required to survive a motion to dismiss. Fed. R. Civ. P. 8 requires only a “short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” and that this standard does not require “detailed factual allegations.” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Accordingly, dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded” enough facts to state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “to raise a reasonable expectation that discovery will reveal evidence of” each necessary element. Phillips v. Gnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(quoting Twombly, 550 U.S. at 556). “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. Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 23 of 29 20 Plaintiff has alleged sufficient factual allegations to satisfy the applicable pleading requirement, and to raise a “reasonable expectation that discovery will reveal evidence of each necessary element” and as such, Defendant’s Motion should be denied. 5. Assuming, arguendo, that the Court grants any portion of District’s Motion to Dismiss, Plaintiff should be permitted a curative amendment to his Complaint. Assuming, arguendo, that this Honorable Court grants any portion of Defendant’s Motion to Dismiss, Plaintiff respectfully submits that he should be afforded the opportunity to amend his Complaint to cure any alleged defect(s). Although Plaintiff maintains that the Complaint has set forth sufficient claims for interference and retaliation FMLA violations, to the extent the Court requires additional factual information, Plaintiff respectfully should be afforded the opportunity to plead those additional facts. Should this Honorable Court grant any portion of Defendant’s Motion, Plaintiff respectfully requests the opportunity to amend the complaint to plead additional facts if the Court deems such is necessary. Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 24 of 29 21 VI. CONCLUSION Plaintiff has pleaded sufficient facts and information to support plausible claims for interference and retaliation in violation of the FMLA, and therefore, Defendant’s Motion to Dismiss is without merit. Plaintiff respectfully requests that this Honorable Court deny Defendant’s Motion to Dismiss Count IV and grant any other relief the Court deems necessary and appropriate. Respectfully Submitted: GRECO LAW ASSOCIATES, P. C. BY: /s/ Carl J. Greco Carl J. Greco, Esquire Attorney I.D. PA #27561 Jennifer Menichini, Esquire Attorney I.D. PA #200917 Attorneys for Plaintiff 327 N. Washington Avenue 4 th Fl., Professional Arts Bldg. Scranton, PA 18503 (570) 346-4434 (570) 346-4442 (facsimile) cjgreco@callGLA.com jmenichini@callGLA.com Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 25 of 29 22 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ANTONIO MURPHY : 124 Mortimer Street : Dunmore, PA 18512, : Plaintiff : CIVIL ACTION - LAW : v. : : No.3:16-CV-1055 MCLANE EASTERN, INC. : Post Office Box 6115 : JURY TRIAL DEMANDED Temple, TX 76503-6115, : : MCLANE/EASTERN, INC. : t/d/b/a McLane PA : 43 Valley View Business Park : Jessup, PA 18434 : : and : : MCLANE COMPANY, INC., : 4747 McLane Parkway : JUDGE JAMES M. MUNLEY Temple, TX 765034 : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: CERTIFICATE OF SERVICE I, Carl J. Greco, Esquire, hereby certify that on the 1 st day of September 2016, I served a true and correct copy of the foregoing PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS, via electronic delivery through the Electronic Case Filing system for the Middle District of Pennsylvania, which is available for immediate delivery, upon: John M. Nolan, Esq. Jackson Lewis PC 1601 Cherry Street, Suite 1350 Philadelphia, PA 19102-1317 Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 26 of 29 23 Respectfully Submitted: GRECO LAW ASSOCIATES, P. C. BY: /s/ Carl J. Greco Carl J. Greco, Esquire Attorney I.D. PA #27561 Jennifer Menichini, Esquire Attorney I.D. PA #200917 Attorneys for Plaintiff 327 N. Washington Avenue 4 th Fl., Professional Arts Bldg. Scranton, PA 18503 (570) 346-4434 (570) 346-4442 (facsimile) cjgreco@callGLA.com jmenichini@callGLA.com Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 27 of 29 24 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ANTONIO MURPHY : 124 Mortimer Street : Dunmore, PA 18512, : Plaintiff : CIVIL ACTION - LAW : v. : : No.3:16-CV-1055 MCLANE EASTERN, INC. : Post Office Box 6115 : JURY TRIAL DEMANDED Temple, TX 76503-6115, : : MCLANE/EASTERN, INC. : t/d/b/a McLane PA : 43 Valley View Business Park : Jessup, PA 18434 : : and : : MCLANE COMPANY, INC., : 4747 McLane Parkway : JUDGE JAMES M. MUNLEY Temple, TX 765034 : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: CERTIFICATION OF THE LENGTH OF PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COUNT IV PURSUANT TO LOCAL RULE 7.8(b)(2) In accordance with Middle District of Pennsylvania Local Rule 7.8(b)(2), I, Carl J. Greco, Esq., hereby certify that the body of Plaintiff’s Brief in Opposition to Defendant’s Motion to Dismiss, which is twenty-one (21) pages in length, and therefore exceeds the fifteen (15) page limitation for briefs set forth in Local Rule 7.8, contains 4,929 words. Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 28 of 29 25 I hereby certify that this word count was ascertained using the Word Count feature of the word-processing software used to prepare the brief, and that the total word count certified herein does not include the Cover, Table of Contents, Table of Authorities or Certificate of Service also contained within the Brief. Respectfully Submitted: GRECO LAW ASSOCIATES, P. C. BY: /s/ Carl J. Greco Carl J. Greco, Esquire Attorney I.D. PA #27561 Jennifer Menichini, Esquire Attorney I.D. PA #200917 Attorneys for Plaintiff 327 N. Washington Avenue 4 th Fl., Professional Arts Bldg. Scranton, PA 18503 (570) 346-4434 (570) 346-4442 (facsimile) cjgreco@callGLA.com jmenichini@callGLA.com Case 3:16-cv-01055-JMM Document 14 Filed 09/01/16 Page 29 of 29 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ANTONIO MURPHY : 124 Mortimer Street : Dunmore, PA 18512, : Plaintiff : CIVIL ACTION - LAW v. : : No.3:16-CV-1055 MCLANE EASTERN, INC. : Post Office Box 6115 : JURY TRIAL DEMANDED Temple, TX 76503-6115, : : MCLANE/EASTERN, INC. : t/d/b/a McLane PA : 43 Valley View Business Park : Jessup, PA 18434 : : and : : MCLANE COMPANY, INC., : 4747 McLane Parkway : JUDGE JAMES M. MUNLEY Temple, TX 765034 : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ORDER And now, this _________ day of _______________, 2016, upon consideration of Defendant’s Motion to Dismiss Count IV of Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6), Brief in Support thereof, and Plaintiff’s Brief in Opposition thereto, it is hereby ORDERED and DECREED that Defendant’s Motion to Dismiss is DENIED. Case 3:16-cv-01055-JMM Document 14-1 Filed 09/01/16 Page 1 of 2 BY THE COURT, ______________________________ J. JAMES M. MUNLEY UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Case 3:16-cv-01055-JMM Document 14-1 Filed 09/01/16 Page 2 of 2 1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ANTONIO MURPHY : 124 Mortimer Street : Dunmore, PA 18512, : Plaintiff : CIVIL ACTION - LAW : v. : : No.3:16-CV-1055 MCLANE EASTERN, INC. : Post Office Box 6115 : JURY TRIAL DEMANDED Temple, TX 76503-6115, : : MCLANE/EASTERN, INC. : t/d/b/a McLane PA : 43 Valley View Business Park : Jessup, PA 18434 : : and : : MCLANE COMPANY, INC., : 4747 McLane Parkway : JUDGE JAMES M. MUNLEY Temple, TX 765034 : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: TABLE OF EXHIBITS AND ATTACHMENTS EXHIBITS EXHIBIT A - Correspondence and Notice of Lawsuit and Request for Waiver of Service of Summons Case 3:16-cv-01055-JMM Document 14-2 Filed 09/01/16 Page 1 of 2 2 ATTACHMENTS ATTACHMENT 1 - Bertig v. Julia Ribaudo Healthcare Group, No. 15- 2224, 2016 U.S. Dist. LEXIS 89938 (M.D. Pa. July 12, 2016)(unpublished opinion) ATTACHMENT 2 - Duncan v. Chester County Hospital, No. 14-1305, 2016 U.S. Dist. LEXIS 40912 (E.D. Pa. Mar. 29, 2016)(unpublished opinion) ATTACHMENT 3 - Duran v. Cnty. of Clinton, No. 14-2047, 2015 U.S. Dist. LEXIS 128801 (M.D. Pa. Sept. 25, 2015)(unpublished opinion) ATTACHMENT 4 - McDonald v. SEIU Healthcare Pennsylvania, No. 1:13-CV-2555, 2014 U.S. Dist. LEXIS 130670, 2014 WL 4672493 (M.D. Pa. Sept. 18, 2014)(unpublished opinion) ATTACHMENT 5 - Hines v. Twp. of Harrison, No. 07-0594, 2007 U.S. Dist. LEXIS 72822 W.D. Pa. Sept. 30, 2007)(unpublished opinion) ATTACHMENT 6 - Cox v. UPS, No. 15-2013, 2016 U.S. Dist. LEXIS 109688 (M.D. Pa. Aug. 18, 2016)( Case 3:16-cv-01055-JMM Document 14-2 Filed 09/01/16 Page 2 of 2 1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ANTONIO MURPHY : 124 Mortimer Street : Dunmore, PA 18512, : Plaintiff : CIVIL ACTION - LAW : v. : : No.3:16-CV-1055 MCLANE EASTERN, INC. : Post Office Box 6115 : JURY TRIAL DEMANDED Temple, TX 76503-6115, : : MCLANE/EASTERN, INC. : t/d/b/a McLane PA : 43 Valley View Business Park : Jessup, PA 18434 : : and : : MCLANE COMPANY, INC., : 4747 McLane Parkway : JUDGE JAMES M. MUNLEY Temple, TX 765034 : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DECLARATION OF CARL J. GRECO, ESQ. I, Carl J. Greco, Esq., attorney for Plaintiff, Antonio Murphy, duly admitted to practice before this Court, makes the following declaration under penalty of perjury: 1. My name is Carl J. Greco, Esq. and I am the principal and sole owner of the Law Offices of Greco Law Associates, P.C., located at 327 N. Washington Avenue, 4 th Floor, Professional Arts Building, Scranton, Pennsylvania 18503. 2. I represent Plaintiff, Antonio Murphy, in the above-referenced matter. Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 1 of 18 2 3. I am fully competent to make this declaration and I have personal knowledge of the facts stated in this declaration. 4. To my knowledge, all of the facts stated in this declaration are true and correct and based upon my personal knowledge and belief. 5. I make this declaration in support of Plaintiff’s Brief in Opposition to Defendant’s Motion Dismiss Count IV of Plaintiff’s Complaint in the above- referenced matter. 6. The documents attached and referenced in Plaintiff’s Brief in Opposition as Exhibit A are true and correct copies of those documents. 7. This Declaration is made subject to the penalties of 28 U.S.C. §1746 relating to unsworn falsification to authorities and/or perjury. Respectfully Submitted: GRECO LAW ASSOCIATES, P. C. BY: /s/ Carl J. Greco Carl J. Greco, Esquire Attorney I.D. PA #27561 Jennifer Menichini, Esquire Attorney I.D. PA #200917 Attorneys for Plaintiff 327 N. Washington Avenue 4 th Fl., Professional Arts Bldg. Scranton, PA 18503 (570) 346-4434 (570) 346-4442 (facsimile) cjgreco@callGLA.com jmenichini@callGLA.com Dated: September 1, 2016 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 2 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 3 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 4 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 5 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 6 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 7 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 8 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 9 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 10 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 11 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 12 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 13 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 14 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 15 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 16 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 17 of 18 Case 3:16-cv-01055-JMM Document 14-3 Filed 09/01/16 Page 18 of 18 No Shepard’s Signal™ As of: September 1, 2016 11:35 AM EDT Bertig v. Julia Ribaudo Healthcare Grp., LLC United States District Court for the Middle District of Pennsylvania July 12, 2016, Decided; July 12, 2016, Filed No. 3:15cv2224 Reporter 2016 U.S. Dist. LEXIS 89938 MARY BETH BERTIG, Plaintiff v. JULIA RIBAUDO HEALTHCARE GROUP, LLC d/b/a JULIA RIBAUDO EXTENTED CARE CENTER and BRIGHTEN AT JULIA RIBAUDO; JULIA RIBAUDO SENIOR SERVICES, LLC d/b/a JULIA RIBAUDO EXTENTED CARE CENTER and BRIGHTEN AT JULIA RIBAUDO; and SABER HEALTHCARE GROUP, LLC, Defendants Core Terms accommodate, medical leave, termination, defendants', disabilities, adverse employment action, serious health condition, protected activity, motion to dismiss, allegations, Retaliation, cancer, pled, asthma, hostile, younger, wrongful termination claim, disability discrimination, retaliation claim, health condition, intermittent, replaced, asserts, qualify, notice, hostile work environment claim, qualifying disability, reasons, issues Counsel: [*1] For Mary Beth Bertig, Plaintiff: Ari R. Karpf, LEAD ATTORNEY, JEREMY M. CERUTTI, KARPF, KARPF & CERUTTI, P.C., BENSALEM, PA. For Julia Ribaudo Healthcare Group, LLC, d/b/a Julia Ribaudo Extended Care Center and Brighten at Julia Ribaudo, Saber Healthcare Group, LLC, Defendants: William J. McPartland, Marshall, Dennehey, Warner, Coleman & Goggin, Moosic, PA. Judges: James M. Munley, United States District Judge. Opinion by: James M. Munley Opinion MEMORANDUM In April 2014, defendants terminated Plaintiff Mary Beth Bertig from her employment as a nurses' aide. Plaintiff allegedly suffers from various health conditions, including cancer and asthma. She took intermittent medical leave to care for her conditions throughout the two-year period prior to her termination. Plaintiff sued alleging violations of the Family and Medical Leave Act, Americans with Disabilities Act, and Age Discrimination in Employment Act. Presently, defendants move the court to dismiss these claims. (Doc. 7). For the reasons elaborated below, the court will grant in part and deny in part the defendants' motion. Background The instant action arises from Plaintiff Mary Beth Bertig's employment with defendants Julia Ribaudo Healthcare Group, LLC; Julia [*2] Ribaudo Senior Services, LLC; and Saber Health Group, LLC (collectively "defendants"). Plaintiff worked for defendants for thirty-two years as a restorative/nurses' aide. Defendants terminated her from her position as a restorative/nurses' aide in April 2014. (Doc. 1, Complaint (hereinafter "Compl.") ¶ 15). At the time, plaintiff was fifty-six years of age. (Id. ¶ 13). Plaintiff suffered from various disabilities, including cancer and asthma, which limited her ability to work, breathe, and perform manual labor. (Id. ¶¶ 17-18). Plaintiff, however, performed her job duties satisfactorily, despite her disabilities, for thirty-two years. (Id. ¶¶ 14, 19). From 2012 through April 2014, plaintiff contends her health conditions made leave, and light duty work necessary to perform her duties. (Id. ¶¶ 20-21). To obtain leave, plaintiff notified defendants of her Case 3:16-cv-01055-JMM Document 14-4 Filed 09/01/16 Page 1 of 6 Page 2 of 6 Bertig v. Julia Ribaudo Healthcare Grp., LLC disabilities and need for medical leave. (Id. ¶¶ 23-24). Defendants, however, failed to administer her absences as Family and Medical Leave Act-qualifying leave. (Id. ¶ 24). In April 2014, defendants terminated plaintiff because of her requested accommodations, disabilities, and age according to the complaint. (Id. ¶¶ 24, 30). Plaintiff [*3] filed a three-count complaint on November 19, 2015: Count I, interference and retaliation under the Family and Medical Leave Act (hereinafter "FMLA"); Count II, disability discrimination and failure to accommodate pursuant to the Americans with Disabilities Act (hereinafter "ADA"); Count III, age discrimination in contravention of the Age Discrimination in Employment Act (hereinafter "ADEA"). 1 (Id.) Defendants filed a motion to dismiss under Rule 12(b)(6) 2 on February 22, 2016. (Doc. 8). The parties have briefed the issues, bringing the case to its current procedural posture. Jurisdiction As plaintiff brings suit pursuant to the FMLA, 29 U.S.C. §§ 2601 et seq.; ADA, 42 U.S.C. § 12112, et seq.; and ADEA, 29 U.S.C. § 621, et seq., we have federal question jurisdiction. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). Standard of Review Defendants filed their motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court tests the [*4] sufficiency of the complaint's allegations when considering a Rule 12(b)(6) motion. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, "'under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.'" Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe "'enough facts to raise a reasonable expectation that discovery will reveal 1 Plaintiff dually filed her ADEA and ADA claims with the Pennsylvania Human Relations Commission and intends to move to amend her complaint to add her Pennsylvania Human Relations Act claims when she exhausts all available administrative remedies there. 2 Fed. R. Civ. P. 12(b)(6). evidence of' [each] necessary element" of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35. In evaluating the sufficiency of a complaint the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Discussion Defendants seek to dismiss plaintiff's complaint in its entirety, arguing that its allegations fail to state valid claims under the FMLA, ADA, and ADEA. Plaintiff argues that she properly pled her claims. After careful consideration, the [*5] court will grant in part and deny in part defendants' motion. I. FMLA Claims of Interference and Retaliation Plaintiff brings both interference and retaliation claims pursuant to the FMLA. The FMLA contains two distinct provisions prohibiting employers from: (1) interfering with an employee's exercise of her right to take reasonable leave for medical reasons, and (2) discriminating or retaliating against an employee who exercises this right. 29 U.S.C. § 2615(a); see also Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012); Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005). The court will discuss the issues of interference and retaliation seriatim. A. Interference To state an FMLA interference claim, plaintiff must establish: (1) she was an eligible employee under the FMLA; (2) defendants were employers subject to the FMLA's requirements; (3) she was entitled to FMLA leave; (4) she provided notice to defendants of her intention to take FMLA leave; and (5) she was denied benefits to which she was entitled. Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014) (citations omitted). In the instant matter, defendants only contest the third Case 3:16-cv-01055-JMM Document 14-4 Filed 09/01/16 Page 2 of 6 Page 3 of 6 Bertig v. Julia Ribaudo Healthcare Grp., LLC and fourth elements, whether plaintiff: (1) qualified for FMLA leave, and (2) provided sufficient notice of her intention to take FMLA leave. The court will address these issues in turn. First, an eligible employee is entitled [*6] to FMLA leave if she has a "serious health condition . . . involv[ing] . . . continuing treatment by a health care provider." 29 U.S.C. § 2611(11). This includes "any period of incapacity or treatment for such incapacity due to a chronic serious health condition." 29 C.F.R. § 825.115(c). A chronic serious health condition: "(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, (2) Continues over an extended period of time, and (3) May cause episodic rather than a continual period of incapacity." Id. A serious health condition also includes "treatment for a serious, chronic health condition which, if left untreated, would likely result in an absence from work of more than three days." 29 C.F.R. § 825.113. Defendants argue plaintiff failed to state a "serious health condition" under the FMLA because she failed to plead incapacitation for more than three days and ongoing medical treatment. Plaintiff counters that the FMLA entitles her to leave because her health conditions, including cancer and asthma, qualify as serious health conditions under the FMLA. (Compl. ¶¶ 20-24). We agree with the plaintiff. The Department of Labor's regulations, as well as the Act's legislative history, expressly include "most cancers" [*7] and "severe respiratory conditions" among its examples of qualifying serious health conditions under the FMLA. S. Rep. No. 103-3, at *29 (1993); See 29 C.F.R. § 825.114, 825.115(e)-(f). Courts have also found that asthma qualifies as a serious health condition under the FMLA. See Gunter v. Cambridge-Lee Indus., LLC, F. Supp. 3d , No. 14-2925, 2016 U.S. Dist. LEXIS 62114, 2016 WL 2735683, at *6-8 (E.D. Pa. May 16, 2016) (finding that plaintiff's asthma was a "chronic health condition"). Thus, plaintiff's complaint states a "serious health condition" under the FMLA. 3 3 Defendants argue that plaintiff must plead incapacitation for three days to establish a "serious health condition" under the FMLA. However, defendants misunderstand the applicable law, which does not require that the plaintiff plead actual incapacitation. Plaintiff need only allege that she received treatment for a condition which would have resulted in more than three days' incapacitation, if left untreated. 29 C.F.R. § 825.115(e)(2). We next address whether plaintiff sufficiently pled that she provided notice of her intention to take FMLA leave. An employee gives sufficient notice when she "state[s] a qualifying reason for the needed leave." Hansler, 798 F.3d at 153. The employee need not "expressly assert rights under the Act or even mention the FMLA." Id. Defendants argue that plaintiff's complaint fails to specify the type and sufficiency of notice [*8] given to defendants prior to taking leave. (Doc. 8). Plaintiff's complaint, however, indicates that she continually notified defendants of her health conditions and need for related, intermittent medical leave. (Doc. 9; Compl. ¶¶ 23-24). At this juncture in the litigation, the court finds that plaintiff has pled that she provided defendants with adequate notice of her intention to take FMLA leave. Accordingly, the court will deny defendants' motion with respect to plaintiff's FMLA interference claim. B. Retaliation To state an FMLA retaliation claim, the plaintiff must assert that: (1) she engaged in a protected activity under the FMLA, (2) plaintiff experienced an adverse employment action following the protected activity, and (3) a causal link exists between the protected activity and the adverse employment action. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). Specifically, defendant's motion to dismiss only attacks the third element: the existence of a causal link between the protected activity and the adverse employment action. Here, the protected activity is plaintiff's FMLA leave, and the adverse employment action is her termination from employment. To properly plead causation, a plaintiff's assertions must "create an inference [*9] that a causative link exists between her FMLA leave and her termination." Lichtenstein, 691 F.3d at 307. "Temporal proximity" between the protected activity and adverse action suffices to create an inference if such temporal proximity is "unduly suggestive." Id. Where temporal proximity is not "unusually suggestive, the court looks at whether the claims, as a whole, may raise the inference." See id. (citing LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n., 503 F.3d 217, 232 (3d Cir. 2007)). Here, plaintiff has satisfied the pleading requirement for causation. Plaintiff avers she needed intermittent medical leave between 2012 and April 2014, when defendant terminated her. (Compl. ¶¶ 23, 28). The short period between plaintiff's leave and termination creates an inference of "unduly suggestive" temporal proximity between her medical leave and subsequent termination. Case 3:16-cv-01055-JMM Document 14-4 Filed 09/01/16 Page 3 of 6 Page 4 of 6 Bertig v. Julia Ribaudo Healthcare Grp., LLC Moreover, plaintiff alleges that defendants expressly terminated her because of her absences from work. (Id. ¶ 28). Plaintiff further alleges that she "did not exhibit disciplinary concerns" but nonetheless received pretextual discipline after returning from a leave of absence in October 2013. (Id. ¶ 27). As such, we find that plaintiff's complaint properly pleads a causal link between the protected activity and the adverse employment [*10] action. Thus, defendants' motion to dismiss plaintiff's FMLA retaliation claim fails. II. ADA Claims of Disability Discrimination, Retaliation, and Failure to Accommodate We next address plaintiff's Count II claims for disability discrimination, retaliation, and failure to accommodate under the ADA. Defendant moves to dismiss all these claims. We will address them in turn. A. Disability Discrimination To state a claim for disability discrimination under the ADA, plaintiff must establish that: (1) she has a disability under the ADA; (2) she was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) she suffered an adverse employment action as a result of discrimination. Gaul v. Lucent Techs., 134 F.3d 576, 580 (3d Cir. 1998). At issue are whether plaintiff sufficiently pled a qualifying disability under the ADA and an adverse employment action. The court will discuss each element in turn. 1. Qualifying Disability To qualify as disabled under the ADA, plaintiffs must establish that (1) they have a physical or mental impairment that substantially limits one or more of their major life activities, (2) there is a record of such impairment, or (3) they are regarded as having [*11] such an impairment. 42 U.S.C. § 12102(1). The federal regulations provide that major life activities include: "[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, [and] breathing...." 42 U.S.C.A. § 12102(2)(A). The Third Circuit has generally explained that, "'major life activities' are those basic activities that the average person in the general population can perform with little or no difficulty." Marinelli v. City of Erie, 216 F.3d 354, 361 (3d Cir. 2000) (quoting 29 C.F.R. App. § 1630.2(i)(1999)). In the instant matter, plaintiff claims her disabilities, cancer and asthma, constitute qualifying disabilities under the ADA. (Compl. ¶ 17). These disabilities allegedly limit her ability to work, breathe, and perform manual labor. (Id. ¶ 18). Despite these limitations, plaintiff nonetheless performed the duties of her job "well" for approximately thirty-two (32) years under defendants' employ. (Id. ¶¶ 19, 14). We find that plaintiff has properly pled the qualifying disabilities of cancer and asthma. Congress clearly intended the ADA to protect cancer patients from disability discrimination. See H. Rep. No. 101-485(III), at 29 (1990) (House of Representatives' legislative history describing 1990 ADA amendments). "Cancer is a 'paradigmatic example [*12] of such an impairment.'" Unangst v. Dual Temp. Co., Inc., No. 10-6811, 2012 U.S. Dist. LEXIS 36852, 2012 WL 931130, at *4 (E.D. Pa. Mar. 19, 2012) (quoting Adams v. Rice, 531 F.3d 936, 952, 382 U.S. App. D.C. 207 (D.C. Cir. 2008)); see also Jones v. UPS, 214 F.3d 402, 406-07 (3d Cir. 2000) (suggesting that plaintiff's undiagnosed cancer could have been regarded as a disability, though plaintiff pled a different cause). Regarding plaintiff's asthma, her condition limits her ability to breathe, a recognized major life activity. See 29 C.F.R. § 1630.2(i)(1)(i). Based on the foregoing reasons, the court finds that plaintiff pled sufficient facts to establish a qualifying disability under the ADA. 2. Adverse Employment Action/Causation Next, plaintiff must allege an adverse employment action. Plaintiff asserts defendants terminated her in April 2014, after she took intermittent medical leave from 2012 to April 2014. (Compl. ¶¶ 20, 28). Plaintiff also claims defendants treated her with hostility and animosity during her final year of employment, shortly prior to her termination. (Id. ¶ 25). Plaintiff cites pretextual discipline and selective enforcement of policies, actions not taken toward her nondisabled coworkers, as examples of such hostility in the workplace. (Id. ¶ 26). Because defendants' arguments on this issue mirror their arguments under the FMLA, the analysis above is equally applicable here. Ergo, we will find that plaintiff properly pled an adverse [*13] employment action, and thus a disability discrimination claim under the ADA. B. Retaliation The court next addresses plaintiff's ADA retaliation claim. To state an ADA retaliation claim, plaintiff must establish that: (1) she engaged in a protected activity, (2) she experienced an adverse employment action Case 3:16-cv-01055-JMM Document 14-4 Filed 09/01/16 Page 4 of 6 Page 5 of 6 Bertig v. Julia Ribaudo Healthcare Grp., LLC following the protected activity, and (3) there is a causal link between the protected activity and the adverse employment action. Krouse, 126 F.3d at 500. The critical issue in dispute is whether her requested accommodations, specifically her medical leave, are subject to protection under the ADA. The Third Circuit Court of Appeals has held that medical leave may constitute an appropriate accommodation under the ADA. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004); see also Buskirk v. Apollo Metals, 307 F.3d 160, 169-71 (3d Cir. 2002) (finding that an employer's provision of medical leave was a reasonable accommodation for an injured employee). Courts disapprove of medical leave as an appropriate accommodation only in situations where the leave is for an indefinite term. See Fogleman v. Greater Hazleton Health Alliance, 122 Fed. Appx. 581, 585-86 (3d Cir. 2004). Defendants dispute whether plaintiff's medical leave is an appropriate accommodation pursuant to the ADA. Plaintiff states that she requested "block and intermittent" leave from 2012 to April 2014. (Compl. ¶ 20). The court finds that the [*14] nature of plaintiff's leave, as alleged in the amended complaint, is not "indefinite." See Fogleman, 122 F. App'x at 585. As such, plaintiff's pleadings adequately state her claims for retaliation under the ADA. C. Failure to Accommodate Plaintiff also asserts a claim for failure to accommodate. To properly state a claim for failure to accommodate, plaintiff must allege that: (1) defendants knew about plaintiff's disability, (2) plaintiff requested accommodations or assistance for her disability, (3) defendants did not make a good faith effort to assist plaintiff in seeking accommodations, and (4) plaintiff could have been reasonably accommodated but for defendants' lack of good faith. Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 330-31 (3d Cir. 2003). Defendants contend that plaintiff's request for medical leave constitutes an inappropriate accommodation under the ADA in light of the defendants' line of business. Additionally, defendants argue that plaintiff fails to assert that defendants did not accommodate her. (Doc. 8). Plaintiff alleges she requested and took medical leave from 2012 to April 2014 to care for her various disabilities, including undergoing surgery. (Compl. ¶¶ 20-23). She argues that medical leave constitutes a reasonable accommodation, and defendants' decision [*15] to terminate her after taking medical leave presents a failure to accommodate her. (Doc. 9). For the reasons delineated above regarding plaintiff's retaliation claim, the court rejects defendants' argument that medical leave does not qualify as an appropriate accommodation under the ADA. Additionally, defendants may be liable for terminating a plaintiff for using, or attempting to use, an appropriate accommodation. See McFadden v. Biomed. Sys. Corp., No. 13-4487, 2014 U.S. Dist. LEXIS 2363, 2014 WL 80717 at *5 (E.D. Pa. Jan. 19, 2014) (finding that defendant failed to accommodate when defendant terminated plaintiff within a week of his request for medical leave to undergo surgery). Here, plaintiff avers defendants "abruptly" fired her in April 2014, after she took intermittent medical leave between 2012 and the time of her termination. (Compl. ¶¶ 20, 28). She alleges that defendants terminated her due to "absenteeism issues." (Id. ¶ 28). As such, we find that plaintiff sufficiently pled defendants' failure to accommodate her request for leave. 4 The court will thus deny defendants' motion to dismiss for failure to accommodate. III. ADEA claims of Age Discrimination through Wrongful Termination and Hostile Work Environment Next, we address plaintiff's age discrimination claims under the ADEA. Plaintiff asserts claims for wrongful termination and hostile work environment under the ADEA. The court will discuss these issues in turn. A. Wrongful Termination Plaintiff first asserts a wrongful termination claim under the ADEA. To state a claim for wrongful termination under the ADEA, the plaintiff must establish that: "(1) the plaintiff is forty (40) years old or older at the time of the allegedly discriminatory action; (2) the defendant took an adverse employment action against the plaintiff; (3) the plaintiff was qualified for the position in question; and (4) the plaintiff was replaced by another employee who was sufficiently younger so as to support an inference of discriminatory animus." Smith v. City of 4 Plaintiff also claims she requested light duty work, in addition to medical leave. (Id. ¶ 21). Her complaint is unclear as to whether she is alleging that defendants failed to [*16] accommodate this request. This issue may best be addressed at the summary judgment stage if plaintiff still seeks to assert light duty work as a failure to accommodate claim. Case 3:16-cv-01055-JMM Document 14-4 Filed 09/01/16 Page 5 of 6 Page 6 of 6 Bertig v. Julia Ribaudo Healthcare Grp., LLC Allentown, 589 F.3d 684, 689 (3d Cir. 2009). Defendant argues that plaintiff neglects to allege she was replaced by a sufficiently younger employee. (Doc. 8). Plaintiff counters that she need not prove [*17] a sufficiently younger employee replaced her. Rather, plaintiff suggests that facts alleging hostile treatment in the workplace towards her, but not her younger coworkers, suffice. After a careful review, the court agrees with the defendants. The Third Circuit Court of Appeals requires plaintiff to plead that she was replaced by an employee sufficiently younger to raise an inference of discriminatory animus. Smith, 589 F.3d at 689. Plaintiff's complaint simply contains no facts alleging that she was replaced, let alone replaced by a younger employee. Her complaint, therefore, fails to properly assert a wrongful termination claim under the ADEA. As such, we will grant defendants' motion to dismiss plaintiff's wrongful termination claim. B. Hostile Work Environment Next, plaintiff asserts a hostile work environment claim under the ADEA. Upon review of the relevant authorities, the Third Circuit has not formally recognized such a cause of action. See Slater v. Susquehanna Cty., 465 F. App'x 132, 138 (3d Cir. 2012) ("We assume, without deciding, that the ADEA makes available a hostile work environment claim for age- based discrimination[.]"); see also Lyles v. Phila. Gas Works, 151 F. App'x 169, 171 n.3 (3d Cir. 2005) ("We have not formally recognized a cause of action[.]"). Where the court assumed recognition for a hostile work environment [*18] cause of action, it reserved judgment for cases in which the age-based harassment was sufficiently "severe or pervasive enough to create an abusive working environment." Slater, 465 F. App'x at 138. Here, plaintiff alleges that defendants treated her rudely and condescendingly, selectively enforced policies against her, and issued pretextual discipline against her - unlike her younger co-workers. (Compl. ¶¶ 25-26). Defendants aver that plaintiff fails to state any factual allegations to illustrate pervasive and regular age-based discrimination against her. (Doc. 8). We find that plaintiff's allegations are sufficient at this stage to assert a hostile work environment claim based on age. The parties may wish to revisit this issue at the summary judgement stage after the facts are more fully developed. Presently, based on the foregoing analysis, the court will deny defendants' motion to dismiss plaintiff's hostile work environment claim. In conclusion, the court will grant in part and deny in part defendants' motion to dismiss plaintiff's Count III ADEA claim. We will dismiss plaintiff's wrongful termination claim but retain plaintiff's hostile work environment claim. Conclusion For the reasons set forth above, defendants' [*19] motion to dismiss will be granted with regard to plaintiff's Count III ADEA wrongful termination claim. All other aspects of the motion will be denied. An appropriate order follows. Date: July 12, 2016 /s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court ORDER AND NOW, to wit, this 12th day of July 2016, the defendants' motion to dismiss is GRANTED in part and DENIED in part. It is granted in that Count III's wrongful termination claim based upon the ADEA is hereby DISMISSED. It is denied in all other respects. BY THE COURT: /s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court End of Document Case 3:16-cv-01055-JMM Document 14-4 Filed 09/01/16 Page 6 of 6 No Shepard’s Signal™ As of: September 1, 2016 11:36 AM EDT Duncan v. Chester Cnty. Hosp. United States District Court for the Eastern District of Pennsylvania March 29, 2016, Decided; March 29, 2016, Filed CIVIL ACTION NO. 14-1305 Reporter 2016 U.S. Dist. LEXIS 40912; 2016 WL 1237795 PATRICK DUNCAN, Plaintiff, v. THE CHESTER COUNTY HOSPITAL, Defendant. Core Terms termination, summary judgment, retaliation, asserts, deposition, fired, reasons, retaliatory, rights, prima facie case, surgery, certification, antagonism, animus, temporal proximity, retaliation claim, allegations, employees, genuine issue of material fact, benefits, parties, cancelled, workplace, Disputed, notice, record evidence, reinstatement, contamination, discipline, Partial Counsel: [*1] For PATRICK DUNCAN, Plaintiff: EDWARD C. SWEENEY, LEAD ATTORNEY, WUSINICH & BROGAN, DOWNINGTOWN, PA. For THE CHESTER COUNTY HOSPITAL, Defendant: SIDNEY R. STEINBERG, LEAD ATTORNEY, BENJAMIN L. SHECHTMAN, CHARLENE A. BARKER, POST & SCHELL PC, PHILADELPHIA, PA. Judges: LAWRENCE F. STENGEL, J. Opinion by: LAWRENCE F. STENGEL Opinion MEMORANDUM STENGEL, J. Currently pending before the Court are the Motion for Partial or Full Summary Judgment 1 by Plaintiff Patrick 1 Plaintiff moved "for partial summary judgment on the Duncan ("Plaintiff") and the Motion for Summary Judgment by Defendant Chester County Hospital ("Defendant"). For the following reasons, Plaintiff's Motion for Partial or Full Summary Judgment is denied, and Defendant's Motion for Summary Judgment is granted. I. FACTUAL BACKGROUND 2 elements of his FMLA interference claim that he has to prove" and also moved "for partial summary judgment on analogous elements in his discrimination/retaliation claims." (Pl.'s Mem. Supp. Mot. Summ. J. 3.) In addition, Plaintiff asserts that he "should be granted full summary judgment on his interference claim." (Id. at 21.) 2 The recitation of facts in this Opinion is compiled from a review of the parties' statements of facts, responses in opposition [*2] to the parties' respective statements of facts, briefs, and the evidence submitted in conjunction with those briefs. To the extent the parties allege a fact that is unsupported by record evidence, the Court does not include it in the recitation of facts. Where the parties have specifically cited exhibits attached to their briefs and other submissions, the Court has reviewed and considered those cited materials. See Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record."). In general, where Plaintiff cites only his Second Affidavit in support of his denials of Defendant's statements of fact-and where (1) Defendant's statements of fact are otherwise supported by record evidence; (2) Plaintiff's Second Affidavit contradicts Plaintiff's prior deposition testimony without providing sufficient explanation for the discrepancy; and/or (3) the factual assertions in Plaintiff's Second Affidavit are actually Plaintiff's opinions or speculations-the Court does not include such assertions as part of the recitation of facts. See, e.g., Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002) ("In order to satisfy the standard for summary judgment 'the affiant must ordinarily set forth facts, rather than [*3] Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 1 of 18 Page 2 of 18 Duncan v. Chester Cnty. Hosp. opinions or conclusions. An affidavit that is 'essentially conclusory' and lacking in specific facts is inadequate to satisfy the movant [or non-movant]'s burden.'") (quoting Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985) (internal quotation omitted)). Defendant argues that Plaintiff's affidavits are "sham affidavits" which may be disregarded entirely by the Court. (See Def.'s Resp. Opp'n Pl.'s Mot. Summ. J. 16-19; Def.'s Reply 6-7.) The Court does not engage in a formal discussion of whether Plaintiff's affidavits rise to the level of a "sham affidavit" under the case law in this Circuit, because Plaintiff offers some explanation for certain of the contradictions between his deposition testimony and the statements in his affidavits. See, e.g., EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 268-69 (3d Cir. 2010) (discussing the Third Circuit's line of cases concerning sham affidavits); see also Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004) (noting the Third Circuit's prior holding that "a party may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.") (citing Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991)). Instead, the Court notes in the fact section and throughout this Opinion where there are contradictions between Plaintiff's deposition testimony [*4] and statements in his affidavits, as well as any explanation Plaintiff provided for the discrepancies. The Court has similarly approached Plaintiff's submission entitled "Disputed Genuine Issues of Material Fact," which consists of sixteen paragraphs, some of which include citation to record evidence but several of which do not. (See generally Pl.'s Disputed Genuine Issues of Material Fact ¶¶ 1-16.) That document also includes three additional numbered paragraphs presenting issues that Plaintiff characterizes as "not needing citation" but which Plaintiff believes require jury consideration. (See id. at 9, ¶¶ 1-3.) Generally, where the facts Plaintiff highlights in this document as "disputed genuine issues of material fact" are not facts, are not material, do not create a dispute of fact relevant to either of Plaintiff's claims, are not supported by record evidence, or are simply Plaintiff's opinion, they are not included in the Court's recitation of the facts. See Fed. R. Civ. P. 56(c)(1)(A) ("A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits [*5] or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials."); Fed. R. Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may consider the fact undisputed for purposes of the motion."); see also Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) ("Unsupported assertions, conclusory allegations, or mere suspicions are insufficient to overcome a motion for summary judgment.") (internal citation omitted); Jones v. United Parcel Plaintiff previously worked as an Interventional Radiology Technologist at Chester County Hospital. (Pl.'s Proposed Undisputed Statement of Facts ("PPUSF") ¶ 1.) Sue Lombardo ("Lombardo") is an Interventional Radiology Supervisor who was Plaintiff's direct supervisor. (Def.'s Statement of Undisputed Material Facts ("DSUMF") ¶4.) Colleen Scelsa ("Scelsa"), the Administrative Director of Radiology, supervises Lombardo and reports directly to Carl Adkins ("Adkins"), [*6] the Vice President of Ancillary Services, who oversees seven other departments in addition to the Interventional Radiology ("IR") Department. (Id. ¶¶ 5-6.) Thomas Quinn, M.D. ("Quinn"), was Defendant's Director of IR, but is not Defendant's employee-rather, Quinn is an employee of Community Radiology Associates within the University of Pennsylvania Health System. (Id. ¶ 7.) As such, Quinn does not have authority over Defendant's employees, nor did he formally evaluate them. 3 (Id.) Plaintiff asserts that, prior to "May/June 2012," he had not received any disciplinary write-ups or Action Forms. 4 Serv., 214 F.3d 402, 407 (3d Cir. 2000) ("At summary judgment, a plaintiff cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial.") (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). 3 Plaintiff "denies" Defendant's contention that Quinn did not have authority over Defendant's employees, because (1) Lombardo testified at her deposition that she did not know if doctors were technically Defendant's employees; (2) she did not know if Quinn could give non-medical orders; (3) Quinn evaluated Lombardo in writing; and (4) "[l]ike Lombardo, Plaintiff was never told the extent of Quinn's authority and everyone assumed he was the ultimate boss and in charge [and that] [d]octors in a Chester County Hospital are typically in charge." (Pl.'s Resp. Opp'n to DSUMF ¶ 7.) Plaintiff's subjective beliefs about doctors' roles within the Chester County Hospital system, however, are not facts. In addition, Lombardo's lack of [*7] specific knowledge, and Plaintiff's personal assumptions, about Quinn's authority over particular categories of employees do not create genuine issues of material fact with respect to Plaintiff's FMLA claims. 4 In fact, in 2003 Plaintiff was suspended without pay for accumulating multiple parking violations within a certain time period. (See Def.'s Resp. Opp'n to PPUSF ¶ 25; Ex. X, Parking Citations and related memoranda.) While the parking violations and related suspension are immaterial and temporally remote to the facts of this case, they do contradict Plaintiff's assertion that he had never received any written forms of discipline during his employment with Defendant. The Court notes that Plaintiff subsequently referred to the parking Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 2 of 18 Page 3 of 18 Duncan v. Chester Cnty. Hosp. (PPUSF ¶¶ 25, 27.) On May 18, 2012, Plaintiff and Quinn got into an argument because Plaintiff did not have things prepared for a procedure and Quinn believed that Plaintiff's unpreparedness led to "less than optimal patient care." (DSUMF ¶ 9.) Quinn and Plaintiff reported conflicting versions of events regarding the incident to Defendant's other employees. (DSUMF ¶¶ 10, 13; Pl.'s Resp. Opp'n to DSUMF ¶¶ 9-10.) Plaintiff received a written warning related to the incident, 5 and in response, Plaintiff submitted a statement describing his version of events to Defendant, which Scelsa later shared with Quinn. 6 (DSUMF ¶¶ 11-14.) Because Quinn believed Plaintiff's statement contained falsehoods, Quinn no longer trusted Plaintiff and their professional relationship devolved to one that Lombardo described as "tense," "unpleasant," and "toxic." 7 (Id. ¶¶ 15, 20, violations in his Response in Opposition to Defendant's Motion for Summary Judgment. (Pl.'s Resp. Opp'n Def.'s [*10] Mot. Summ. J. 4.) 5 Plaintiff asserts that Defendant "retaliated on Quinn's behalf" by disciplining him after the incident "because Quinn felt Plaintiff was not sufficiently obsequious and was angered that Plaintiff wrote up a version of events that differed from Quinn's and submitted it to HR." (Pl.'s Resp. Opp'n to DSUMF ¶ 11.) Plaintiff's personal opinion, however, is not a "fact." 6 Plaintiff claims that "Scelsa told Plaintiff that when [Quinn] read Plaintiff's statement, [he] told Scelsa he wanted to fire Plaintiff the same day," but cites only his own Second Affidavit in support of that assertion. (See Pl.'s Resp. Opp'n to DSUMF ¶ 13 (citing Pl.'s Resp. Opp'n Def.'s Mot. Summ. J., Ex. O, Second Affidavit of Patrick Duncan, Feb. 27, 2015 ("Second Plaintiff Aff.") ¶ 13).) 7 Plaintiff argues that there is a genuine issue of fact regarding Quinn's treatment of him, based on Quinn's opinion of his own conduct towards Plaintiff and how Quinn described it, in contrast with Plaintiff's perception of Quinn's behavior and Lombardo's description of Quinn's behavior. (See Pl.'s Disputed Genuine Issues of Material Fact ¶ 3.) Plaintiff asserts that "Lombardo blamed Quinn for the relationship problem [*11] with Plaintiff." (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 14 (citing Deposition of Susan Lombardo, Sept. 30, 2014 ("Lombardo Dep.") 84).) Lombardo testified that the workplace was "toxic" because Quinn avoided Plaintiff, which caused tension and low morale in the department. (See Lombardo Dep. 84:4-23.) Actual attribution of blame was not part of her testimony. While Plaintiff and Lombardo used different words to describe Quinn's behavior, Quinn testified that "there was a change in [his] relationship with [Plaintiff] after the events of May of 2012" whereby he avoided being alone with Plaintiff because he did not trust him and thus tried to limit his exposure to Plaintiff. (See Deposition of Thomas Quinn, M.D., Oct. 17, 2014 ("Quinn Dep.") 60:10-19.) Quinn 21.) Quinn would [*8] not work alone with Plaintiff and spoke very little to him unless it was patient-related, apparently in order to limit his exposure to any further claims against him from Plaintiff. (Id. ¶¶ 18-19, 21-22; Deposition of Thomas Quinn, M.D., Oct. 17, 2014 ("Quinn Dep.") 60:10-19.) Plaintiff testified at his deposition that, beginning in June 2012: • Plaintiff and Quinn had communication problems; • Plaintiff believed that Quinn avoided him at all costs; • Quinn would leave the central room of the IR area in order to avoid interacting with Plaintiff; • Quinn stopped entering the central IR room (where Plaintiff's desk was located) so that he would not have to see or speak with Plaintiff; • Plaintiff was required to present Quinn with handwritten notes related to patient care because Quinn would not speak with him; • Quinn completely avoided Plaintiff; and • Quinn made Plaintiff write out the day's schedule and deliver it to his office rather than deliver it to him verbally. (DSUMF ¶¶ 23-29 (citing Deposition of Patrick Duncan, Aug. 20, 2014 ("Plaintiff Dep.") 115:13-120:15, 126:19- 129:5).) At Plaintiff's deposition, when asked whether other people treated him differently because of Quinn's behavior [*9] towards him, Plaintiff testified that "[e]verybody was professional, but it was not until after I submitted my FMLA that things ramped up." 8 (Plaintiff also testified that he "tried to do it in a way that was professional," but that he "was told at one point that I could make more of an effort to be more cordial." (Id. at 60:20-22.) For purposes of Plaintiff's claims, the words that Quinn used at his deposition to describe his conduct towards Plaintiff do not create a material factual issue, because the issue is not the precise degree to which Quinn's behavior was hostile, or how [*12] Quinn would describe it. Rather, the pertinent issue regarding Quinn's behavior towards Plaintiff is whether the conduct itself is relevant to Plaintiff's FMLA retaliation claim, an issue discussed more fully below. 8 Plaintiff believes that towards the end of his employment "fellow employees shunned [him] because they knew he was being targeted." (Pl.'s Resp. Opp'n to DSUMF ¶ 39 (citing Plaintiff Dep. 120-122; Second Plaintiff Aff. ¶ 16).) Plaintiff also stated that he "felt" that "they were circling the wagons and getting people to dramatize things to fire me or get me to quit." Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 3 of 18 Page 4 of 18 Duncan v. Chester Cnty. Hosp. Dep. 122:12-19.) However, Plaintiff also testified at his deposition that, after he emailed his request for FMLA leave to Scelsa in February 2013, he and Quinn had the same level of communication as in the preceding months. 9 (DSUMF ¶ 39 (citing Plaintiff Dep. 139:12-19, 161:3-7).) Plaintiff also testified that he did not know whether Quinn knew that he had requested FMLA leave. (See Plaintiff Dep. 131:6-133:23.) On February 19, 2013, Plaintiff met with Scelsa to express frustration with Quinn's behavior and the work environment in the IR Department. (DSUMF ¶ 31.) During their meeting, Plaintiff said that he wanted to leave the IR Department because of his working relationship with Quinn, or to only work part time in the IR Department in order to minimize the amount of time he had to work with Quinn. (Id. ¶ 32 (citing Deposition of Colleen Scelsa, Sept. 30, 2014 ("Scelsa Dep.") 82:25- 83:13).) Plaintiff also told Scelsa that he was thinking about going back to school to get a CT/MR certification, and that if he continued his employment with Defendant, he wanted to work as a Radiology Tech Aide in another radiology department. (Id. ¶ 33 (citing Scelsa Dep. 82:25-83:13).) On February 20, 2013, Plaintiff spoke with Nancy Canfield, a Benefits Coordinator in Defendant's human resources department, regarding his need for future knee replacement surgery. (DSUMF ¶ 35.) On February 21, 2013, [*14] Plaintiff emailed Scelsa and Lombardo and stated that he intended to have knee replacement surgery at some point in the future. (Id. ¶ 36.) That same day, Plaintiff requested information and paperwork for possible FMLA leave relating to his knee, and was provided with a Leave of Absence Request and Agreement Form and a Certification of Health Care Provider for Employee's Serious Health Condition (Second Plaintiff Aff. ¶ 11.) As previously stated, Plaintiff's beliefs and opinions are not "facts." Plaintiff cites the same portion of his deposition testimony in support of his assertion that the treatment from Quinn got worse after he requested FMLA leave, but Plaintiff's testimony actually refers to the behavior of other people, not Quinn's behavior. (See Pl.'s Resp. Opp'n DSUMF ¶ 16; Plaintiff Dep. 122:12-19.) 9 Plaintiff now claims that "[a]fter my FMLA request, Dr. Quinn, who was 'cool' or 'very cool' became more obviously abrasive towards me" and that "[t]here had been no incident or event to explain Dr. Quinn's sudden [*13] change in behavior towards me other than my request for FMLA leave." (Second Plaintiff Aff. ¶ 8.) Plaintiff does not explain the difference between his deposition testimony and the assertions in his second affidavit. Form. 10 (Id. ¶ 38.) Plaintiff submitted the required paperwork, including a medical certification from his physician, Dr. Michael Maggitti, regarding his need for leave in order to have an operation for total knee replacement. (PPSUF ¶¶ 8, 10.) Dr. Maggitti returned the FMLA medical certification forms to Defendant on March 18, 2013. (DSUMF ¶ 60.) The operation was scheduled for April 16, 2013. (PPSUF ¶ 19.) Scelsa approved Plaintiff's request for FMLA leave on Defendant's behalf on March 19, 2013. 11 (PPSUF ¶¶ 13, 20; DSUMF ¶ 61.) On or about February 26, 2013, Plaintiff was given a final written warning "concerning alleged deficiencies in the IR department," which was withdrawn after Plaintiff complained to Defendant's human resources department because of the delay between February 14, 2013, the date of the underlying incident, and his receipt of the warning. (PPUSF ¶¶ 29-31; DSUMF ¶ 45.) Plaintiff received the warning because Quinn observed Plaintiff contaminate a sterile tray before a patient procedure, and Quinn subsequently reported it to Lombardo. (DSUMF ¶¶ 40-42.) Lombardo later reported 10 In the fact section of his Complaint, Plaintiff claimed that "Defendant failed to give Plaintiff his individual FMLA notices once it acquired knowledge that Plaintiff needed FMLA leave as required by 29 C.F.R. § 825.300(b) and other regulations, including an Eligibility Notice, a Rights and [*15] Responsibility Notice, and a Designation Notice." (Compl. ¶ 14; see also Pl.'s Mem. Supp. Mot. Summ. J. 3, 5.) In support of his argument, Plaintiff cites only his first affidavit: "Defendant Chester County Hospital clearly approved my leave even though it may not have given me all the necessary FMLA forms that should have delineated my rights and responsibilities under the FMLA or otherwise complied with the FMLA." (Id., Ex. A, First Plaintiff Affidavit, Feb. 5, 2015 ("First Plaintiff Aff.") ¶ 23 (emphasis added).) Specifically, Plaintiff claims that Defendant did not provide him with a "proper ineligibility notice, a rights and responsibility notice, and a designation notice." (First Plaintiff Aff. ¶ 20.) Plaintiff's self- serving affidavit and its assertion that he may not have received the forms do not create a material issue of fact sufficient to substantiate his claim that his FMLA entitlements were interfered with. As noted above, Defendant promptly approved Plaintiff's leave request upon receipt of the medical certification form signed by Plaintiff's treating physician. Plaintiff has not demonstrated how any failure to provide these documents interfered with his success in obtaining [*16] FMLA leave approval from Defendant. 11 Plaintiff's eligibility for FMLA benefits at the time of his leave request-based on his length of employment with Defendant, hours worked per week and during the preceding year, and the number of Defendant's employees-is not in dispute. Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 4 of 18 Page 5 of 18 Duncan v. Chester Cnty. Hosp. the incident to Scelsa upon Scelsa's return to work on February 19, 2013, and Scelsa presented Plaintiff with the warning on February 26, 2013. (Id. ¶¶ 43-44.) After the warning was withdrawn, Plaintiff instead received a Quality Action Form, which is a non-disciplinary form. 12 (Id. ¶¶ 48, 50.) Plaintiff testified at his deposition that, at the time he [*17] disputed the warning with human resources, he did not present his disagreement as being related to, or in retaliation for, his FMLA request. (Plaintiff Dep. 232:14-233:16.) As of the date of his deposition, however, Plaintiff believed the warning was in retaliation for requesting FMLA leave and that he was being harassed. (Id.) At some point in the second half of 2012, Adkins recommended that Scelsa work with Jackie Felicetti ("Felicetti"), the head of human resources, to arrange a discussion between Quinn and Plaintiff about their working relationship, with Felicetti as a facilitator. (PPUSF ¶ 32 (citing Pl.'s Mot. Summ. [*18] J., Ex. I, Deposition of Carl Adkins, Sept. 30, 2014 ("Adkins Dep.") 25:6-20).) A meeting was eventually scheduled for March 13, 2013, at 7:30 a.m. (PPUSF ¶ 34 (citing Pl.'s Mot. Summ. J., Ex. A, Affidavit of Patrick Duncan, Feb. 5, 2015 ("First Plaintiff Aff.") ¶ 31.) According to Plaintiff, when he reported for the meeting at 7:10 a.m., he was first told to sit outside, and at around 8:00 a.m., he was told to come back that afternoon. (First Plaintiff Aff. ¶¶ 32, 34.) Plaintiff stated that he saw Quinn in the meeting and that Quinn and the others met without him. (Id. ¶¶ 33-34.) When Plaintiff came back that afternoon, Felicetti told him that Quinn would not meet with him and that she would try to resolve the situation. (Id. ¶ 35.) During a regularly scheduled review of IR forms for the first quarter of 2013, Lombardo found that Plaintiff had failed to document a patient's allergies on a sedation form (known as a "time out form") and that Plaintiff had failed to sign a different time out form. 13 (DSUMF ¶ 62.) 12 Plaintiff "denies" that contaminating an item on the tray was worthy of either discipline or a Quality Action Form, asserts that it "would have been a minor breach of procedure," and claims that Quinn had ignored such breaches in the past. (Affidavit of Patrick Duncan, Feb. 27, 2015 ("Second Plaintiff Aff.") ¶¶ 5-6.) As stated previously, Plaintiff's unsupported opinions and assertions are not evidence. See Betts, 621 F.3d at 252 ("Unsupported assertions, conclusory allegations, or mere suspicions are insufficient to overcome a motion for summary judgment.") (internal citation omitted). 13 In Plaintiff's opinion, Lombardo had tired of the problems between Quinn and Plaintiff and she "treated [Plaintiff] differently after the FMLA leave request and tried to put him in On March 20, 2013, Plaintiff was issued a Quality Action Form as a result of those failures. (Id. ¶ 64.) 14 Another employee also received a Quality Action Form for failing to complete [*19] a time out form during the last quarter of 2012. (Id. ¶ 66.) On March 20, 2013, Scelsa met with Plaintiff regarding the Quality Action Form issued in relation to the time out forms, the Quality Action Form Plaintiff received after he contaminated a sterile tray on February 14, 2013, and conversations Plaintiff had with another of Defendant's employees regarding Plaintiff's view of the working environment in the IR Department. 15 (DSUMF ¶ 67.) Scelsa advised Plaintiff that, having received a Quality Action Form, any subsequent infractions of Defendant's rules could lead to Plaintiff facing steps in the disciplinary procedure. (Scelsa Dep. 76:25-77:15.) During that meeting, Plaintiff made several remarks that he wanted to work in a different department, that he was considering not returning to work the following week, catch-22 positions." (Pl.'s Resp. Opp'n DSUMF ¶ 64 (citing Plaintiff Dep. 253:8-20).) 14 In his Proposed Undisputed Statement of Facts, Plaintiff asserts that he "was given 2 or 3 Quality Action Forms (depending on whose views are believed) by Ms. Scelsa." (PPUSF ¶ 39 (citing First Plaintiff Aff. ¶ 36).) Plaintiff also asserts, as an undisputed fact, his belief that "the Action Forms were unwarranted and that Defendant was obviously picking on him." (Id. ¶ 40 (citing First Plaintiff Aff. ¶ 37).) Plaintiff testified at his deposition that, at the time he met with Scelsa about the Quality Action Forms, he did not mention a belief that his receipt of Quality Action Forms was connected to his request for FMLA leave. (Def.'s Resp. Opp'n to PPUSF ¶ 40 (citing Plaintiff Dep. 276:24-279:8).) Plaintiff also asserts that Scelsa had not given Quality Action Forms to other IR technologists prior to giving them to Plaintiff, even though another IR technologist received [*20] such forms from Scelsa around the same time. (Id. at ¶ 41 (citing Pl.'s Mot. Summ. J., Ex. H, Deposition of Colleen Scelsa, Sept. 30, 2014 ("Scelsa Dep.") 75:1-11).) 15 Plaintiff discussed the working environment in the IR Department with another employee, even though Felicetti had asked him to maintain confidentiality about the situation. (See DSUMF ¶¶ 55-59 (citing [*21] Plaintiff Dep. 287:5-9; Def.'s Ex. Q (Plaintiff Dep. Ex. 10, Pawlowski's Handwritten Notes regarding conversation with Plaintiff); Felicetti Dep. 112:23- 113:10, 114:9-10, 116:17-19).) Plaintiff denies making certain remarks or including specifics about Quinn during his conversation with the other employee, and asserts that Felicetti did not give him guidance when she told him not to talk about "it." (Second Plaintiff Aff. ¶¶ 9, 17.) Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 5 of 18 Page 6 of 18 Duncan v. Chester Cnty. Hosp. and that he might or might not see her the following week. 16 (DSUMF ¶¶ 68-74.) After his meeting with Scelsa, Plaintiff took some personal objects out of the workplace, but left others behind. (PPUSF ¶ 44 (citing First Plaintiff Aff. ¶ 39).) Lombardo saw Plaintiff remove his personal photos from the community board, take a phone cord that he always kept at work, and slam a filing cabinet shut after removing something. (DSUMF ¶¶ 75, 77.) Plaintiff asserts that he removed his personal photos "because of the way he was treated and no one [*22] deserved to see the pictures." (Pl.'s Resp. Opp'n to DSUMF ¶ 76.) Lombardo contacted Scelsa regarding what she had seen, and Scelsa in turn contacted Felicetti. (Id. ¶ 77.) Felicetti testified at her deposition that because Plaintiff had become increasingly upset in the previous days, had removed personal belongings from the workplace, and stated that he no longer wanted to be employed in the IR Department, she terminated Plaintiff's work passwords. (DSUMF ¶ 79.) Felicetti also testified that it is Defendant's normal procedure to cancel passwords if an individual leaves work when they are very upset, and that it is easy to reactivate someone's passwords. (Id. ¶ 80.) Later in the day on March 20, 2013, Felicetti called Plaintiff to ask him if he had resigned, and Plaintiff told her that he had not resigned. (PPUSF ¶ 45.) On March 22, 2013, which was an approved scheduled day off for Plaintiff, Defendant requested Plaintiff's attendance at a meeting at 3:00 p.m. (PPUSF ¶ 46; DSUMF ¶ 83.) Plaintiff attended the March 22, 2013 meeting, along with Felicetti and Adkins. (DSUMF ¶ 85.) During the meeting, Plaintiff stated that he had not resigned on March 20, 2013, but also stated that he no [*23] longer wanted to work in the IR Department. (DSUMF ¶ 86.) He also indicated that he wanted to either transfer or work part-time, and that he wanted to either pursue additional education or be considered for an entry-level tech aide position. (Id. at ¶¶ 86-87 (citing Plaintiff Dep. 316:6-15; Adkins Dep. 18:4-6, 30:17-20, 54:2-12; Felicetti Dep. 20:20-21:1; Def.'s Ex. U, Adkin Notes.) Plaintiff refused to answer Felicetti's questions regarding whether he had spoken with another of Defendant's employees about the work environment issues Plaintiff had been experiencing. 17 (DSUMF ¶¶ 88-90.) At the 16 Plaintiff disputes that this remark could be interpreted to mean that he was thinking of quitting or resigning, and claims that his remark that he might not be at work on Monday was connected to his "gut feeling he was being fired." (Pl.'s Resp. Opp'n to DSUMF ¶ 71 (citing Second Plaintiff Aff. ¶ 11).) 17 Plaintiff asserts that he "did not lie" but "was somewhat end of the meeting, Plaintiff said "goodbye, it's been a great run." (Id. ¶ 92 (citing Felicetti Dep. 166:18; Plaintiff Dep. 318:24-319:2).) At that point, Felicetti asked Plaintiff not to report to work until she contacted him. 18 (DSUMF ¶ 93 (citing Felicetti Dep. 166:20-21).) On March 26, 2013, Plaintiff was terminated from his employment with Defendant. (PPUSF ¶ 21.) Felicetti, Scelsa, and Adkins made the decision to terminate Plaintiff's employment based upon Plaintiff's behavior generally, his behavior following the March [*26] 20, 2013 meeting, his expressed desire not to remain in the evasive and careful because he was being targeted." (Pl.'s Resp. Opp'n to DSUMF ¶ 89 (citing Second Plaintiff Aff. ¶ 17).) 18 Plaintiff "does not know what went on privately among [Defendant's] managers regarding the process and timing of termination," but "believes that [*24] the circumstantial evidence suggests [Defendant] was going to fire [him] before March 22 . . . ." (Pl.'s Resp. Opp'n to DSUMF ¶ 94 (emphasis in original).) Plaintiff asserts, therefore, that there is a genuine issue of material fact as to when Defendant actually made the decision to fire him. (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 15.) Felicetti initially testified at her deposition that she first discussed the issue with Adkins on March 21, 2013, but later in her deposition, after speaking with counsel, she corrected her testimony to state that she had that discussion with Adkins on March 22, 2013. (Felicetti Dep. 156:6-164:20.) She also stated that she wanted to meet with Plaintiff prior to making a final determination regarding his continued employment. (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 15 (citing Felicetti Dep. 156:6-164:20).) As Plaintiff notes, Felicetti attributed the change to the fact that she was "a little bit tired," but Plaintiff omits the part of her testimony where she notes that she had by then been in the deposition for seven or eight hours. (See Felicetti Dep. 162:20-21.) Whether Felicetti spoke with Adkins or legal counsel on March 21 or March 22, and how far [*25] along Felicetti had come in reaching the ultimate decision to terminate Plaintiff's employment between March 20, 2013 when she spoke with Plaintiff on the phone and the conclusion of the meeting with Plaintiff on March 22, 2013, do not create genuine issues of material fact with respect to Plaintiff's claims. The fact issues relevant to Plaintiff's FMLA claims concern (1) Defendant's motivation for firing Plaintiff, i.e., whether Plaintiff would have been fired regardless of his FMLA leave request; and (2) Defendant's alleged retaliatory conduct and whether there is sufficient temporal proximity between any adverse employment actions and Plaintiff's FMLA leave request to support a causal connection between them. A difference of one day is not, under the circumstances of this case, outcome determinative. Thus, the discrepancy in Felicetti's deposition testimony is not a disputed issue of material fact for purposes of summary judgment. Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 6 of 18 Page 7 of 18 Duncan v. Chester Cnty. Hosp. IR Department, and the ongoing issues Plaintiff experienced with Quinn. (DSUMF ¶ 95 (citing Adkins Dep. 14:7-9, 40:23-41:5).) Quinn testified at his deposition that he was not consulted on Plaintiff being fired, and that he did not suggest that Plaintiff be let go, laid off, or terminated. (Quinn Dep. 67:19-68:5.) Felicetti told Plaintiff on March 26, 2013 that he would no longer be actively employed with Defendant, but that Defendant was prepared to help him and his family with benefits. (DSUMF ¶ 98 (citing Felicetti Dep. 181:23- 182:3).) Adkins testified at his deposition that Felicetti wanted Plaintiff to be able to have the knee surgery and wanted to ensure that Defendant's health insurance would cover it. (DSUMF ¶ 99 (citing Adkins Dep. 41:14- 21).) Since Plaintiff had already been approved for FMLA leave, Defendant provided Plaintiff with a letter dated March 26, 2013, explaining that (1) if Plaintiff had his knee surgery any time before April 30, 2013 (two weeks after the date of Plaintiff's scheduled surgery), he would be permitted to take a full 12-week FMLA leave, with benefits, regardless of whether he executed a Release [*27] of Claims ("Release") arising out of his employment with Defendant; and (2) if Plaintiff decided not to have the surgery, or if he postponed the surgery to a date after April 30, 2013, his unpaid leave and employment would terminate on April 30, 2013. (DSUMF ¶¶ 100-01; Ex. V, March 26, 2013 Letter and Release.) The letter also explained that if Plaintiff signed the Release, he would be paid at his regular rate from the date of his termination up until the date of his then- scheduled surgery date of April 16, 2013, but that if he did not sign the Release, he would not be paid for the time between his termination and the date of his surgery. (DSUMF ¶ 100 n.2; Ex. V.) Plaintiff testified at his deposition that he understood he did not have to sign the Release in order to use his approved FMLA leave. (Plaintiff Dep. 329:24-331:3.) Plaintiff did not sign the Release. (DSUMF ¶ 104.) At some point, but on a date that Plaintiff did not recall, he cancelled his scheduled knee surgery. (Plaintiff Dep. 79:11-15, 79:23-24.) According to Plaintiff's deposition testimony, he cancelled his knee surgery when he was at Dr. Maggitti's office for an appointment. (Id. 79:11-15, 79:23-24.) Plaintiff's medical [*28] records reflect that Plaintiff last visited Dr. Maggitti's office on February 27, 2013, and March 15, 2014-appointments which occurred prior to the date on which Defendant told Plaintiff his employment was terminated. (DSUMF ¶ 109-10; Ex. W, Dr. Maggitti's Medical Records for Plaintiff.) Plaintiff also testified at his deposition that he told either Dr. Maggitti or Dr. Maggitti's nurse that he was cancelling the surgery because he was no longer employed. (Plaintiff Dep. 79:11-83:17.) Plaintiff now admits that he is not sure "[h]ow and when" he cancelled his surgery, but he nonetheless asserts that it was not cancelled until after he was terminated. (Pl.'s Resp. Opp'n to DSUMF ¶ 106.) Plaintiff stated in his second affidavit that "I testified in my deposition that I thought I did it in person with Dr. Maggitti. His notes do not reflect such a meeting. That is still my recollection and I cannot explain why his notes would not reflect what I recall other than he did not recall it or, given the passage of time, I may not be recalling it right. However, I am certain that I cancelled it after my termination." (Second Plaintiff Aff. ¶ 1.) Plaintiff's medical records include a document entitled [*29] "Total Knee Replacement Pre-Op Documentation" which was signed by Dr. Maggitti on April 4, 2013, but which does not have a date in a box at the top for "Date of Surgery." (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J., Ex. P at Maggitti 033.) On April 12, 2013, Plaintiff visited Paoli Hospital for blood work and radiology views of his knee, which Plaintiff asserts was "a diagnostic study (x-ray) in pre-op for his scheduled surgery." (Pl.'s Resp. Opp'n to DSUMF ¶ 106 (citing Pl.'s Ex. P at Maggitti 061); Second Plaintiff Aff. ¶ 2.) Plaintiff's wife submitted an affidavit in 2015 in which she stated that Defendant's claim that Plaintiff cancelled his surgery before April 12, 2013 is "ridiculous," that she "think[s]" that Plaintiff cancelled his surgery by phone, that she "believe[s]" she spoke with an office administrator at Dr. Maggitti's office "about whether it would be possible, having cancelled the surgery, for [Plaintiff] to get it at some other time," and that she "believe[s] this conversation occurred after [Plaintiff] had the pre-op testing." (Affidavit of Janet Duncan, Feb. 27, 2015, ¶¶ 9-10.) Plaintiff filed a Complaint in this case on March 3, 2014. Plaintiff filed a Motion for Partial or Full Summary Judgment [*30] on February 9, 2015 and Defendant filed its own Motion for Summary Judgment on February 13, 2015. Defendant filed a Response in Opposition to Plaintiff's Motion for Partial or Full Summary Judgment on February 26, 2015, and Plaintiff filed a Response in Opposition to Defendant's Motion for Summary Judgment on March 4, 2015. Defendant filed a Reply on April 2, 2015. Plaintiff filed a Memorandum of Law Supplementing His Summary Judgment Positions on March 2, 2016, to which Defendant responded on March Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 7 of 18 Page 8 of 18 Duncan v. Chester Cnty. Hosp. 9, 2016. 19 The parties' Motions for Summary Judgment are now ripe for judicial consideration. 19 Plaintiff moved for leave to file supplemental briefing on the application of the Third Circuit Court of Appeals' decision in Hansler v. Lehigh Valley Hospital Network, 798 F.3d 149 (3d Cir. 2015) to his FMLA interference claim. The Court has reviewed and considered the arguments of both parties on this issue, but finds that Plaintiff's reliance on Hansler is misplaced in light of the nature of his claims. First, the holding in Hansler concerns the statutory requirement that an employer provide written notice with an opportunity to cure when an employee submits an insufficient medical certification in support of an FMLA leave request. There, the court stated that "in [*31] 'any circumstance where the employer does not have sufficient information about the reason for an employee's use of leave, the employer should inquire further of the employee . . . to ascertain whether leave is potentially FMLA-qualifying.'" Id. at 153 (quoting 29 C.F.R. § 825.301(a)). "In addition, an employer 'shall advise an employee whenever the employer finds a certification incomplete or insufficient, and shall state in writing what additional information is necessary to make the certification complete and sufficient.'" Id. (quoting 29 C.F.R. § 825.305(c)). "A certification is 'incomplete' if the 'employer receives a certification, but one or more of the applicable entries have not been completed.'" Id. (quoting 29 C.F.R. § 825.305(c)). The Third Circuit held "that when a certification submitted by an employee is 'vague, ambiguous, or non-responsive' (or 'incomplete,' for that matter) as to any of the categories of information required under 29 U.S.C. § 2613(b), the employer 'shall advise [the] employee . . . what additional information is necessary to make the certification complete and sufficient' and 'must provide the employee with seven calendar days . . . to cure any such deficiency.'" Id. at 155 (quoting 29 C.F.R. § 825.305(c)). Thus, a plaintiff may premise an FMLA interference claim on an employer's [*32] alleged regulatory violation through failure to provide written notice and an opportunity to cure an incomplete or insufficient certification. Id. at 156. Here, Plaintiff's FMLA leave request was approved, and the sufficiency of his medical certification is not at issue. Accordingly, Hansler's holding does not apply to the particular issues raised by Plaintiff's FMLA interference claim. Second, as discussed more thoroughly below, Plaintiff's FMLA interference claim primarily states a claim for FMLA retaliation, and is therefore being dismissed as a matter of law because it is duplicative of the retaliation claim. The Third Circuit's decision in Hansler does not speak to that particular legal issue, and therefore does not apply to the particular facts of Plaintiff's case. The potentially non-duplicative aspect of Plaintiff's FMLA interference claim is related to alleged interference with job restoration, an issue which was likewise not addressed by the Third Circuit's holding in Hansler. II. STANDARD OF REVIEW Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant [*33] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). For an issue to be "genuine," a reasonable fact- finder must be able to return a verdict in favor of the non-moving party. Id. On summary judgment, the moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). Although the moving party must establish an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's claims." Id. at 325. If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that [*34] party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Moreover, the mere existence of some evidence in support of the non-movant will not be adequate to support a denial of a motion for summary judgment; there must be enough evidence to enable a jury to reasonably find for the non-movant on that issue. Anderson, 477 U.S. at 249-50. III. DISCUSSION Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 8 of 18 Page 9 of 18 Duncan v. Chester Cnty. Hosp. After careful consideration, the Court first finds that Plaintiff is not entitled to summary judgment on his FMLA interference claim in Count One for two reasons. First, the bulk of the claim may be dismissed because it is duplicative of his FMLA retaliation claim in Count Two. Second, Defendant is entitled to summary judgment on the remaining portion of the interference claim because Plaintiff would have been terminated even if he had not requested FMLA leave. The Court next finds that Defendant is also entitled to summary judgment on Plaintiff's FMLA retaliation claim in Count Two because Plaintiff failed to establish a prima facie case of retaliation and no reasonable fact-finder would be able to return a verdict in Plaintiff's favor. The Court discusses each of Plaintiff's claims in turn. A. Count One: FMLA Interference Plaintiff asserts that he was [*35] entitled to FMLA benefits, but was denied them as a result of Defendant's interference with his FMLA rights. (Compl. ¶¶ 38, 40.) The FMLA provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a)(1). To assert an FMLA interference claim, "the employee need not show that he was treated differently than others." Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005). Rather, "[i]n order to assert a claim of deprivation of entitlements, the employee only needs to show that he was entitled to benefits under the FMLA and that he was denied them." Callison, 430 F.3d at 119 (citing 29 U.S.C. §§ 2612(a), 2614(a)). "Further, the employer cannot justify its actions by establishing a legitimate business purpose for its decision." Id. at 119-20. Ultimately, "[a]n interference action is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA." Id. at 120. "To make a claim of interference under the FMLA, a plaintiff must establish: (1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA's requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant [*36] of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA." Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014) (citations omitted). The Third Circuit Court of Appeals recently held that an FMLA plaintiff may not "go forward with an interference claim that is in form and substance . . . a claim for retaliation." Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 598 F. App'x 109, 114 (3d Cir. 2015) ("Lichtenstein II") (internal quotation marks omitted). While the court had previously held that "firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee," Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009) (emphasis added), it had also subsequently noted that "[i]t is not clear to us that Erdman necessarily guarantees that plaintiffs have an automatic right to claim interference where . . . the claim is so clearly redundant to the retaliation claim." Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 312 n.25 (3d Cir. 2012) ("Lichtenstein I"). The plaintiff in the Lichtenstein cases claimed that her employer interfered with her right to take FMLA leave "by using 'these absences and/or requests for FMLA leave as a negative factor in its decision to termination her employment.'" Lichtenstein II, 598 F. App'x at 114 (emphasis in original) (quoting Appellants' Br. 38.). The plaintiff did "not claim that any benefits [*37] were actually withheld, thereby making her claim distinctly not one for interference as [the Third Circuit] defined such claims in Ross." Id. (citing Ross, 755 F.3d at 192). Here, Plaintiff alleged that Defendant interfered with his FMLA rights (1) by disciplining and treating him differently, including by termination, "because of" his assertion and invocation of FMLA rights; (2) using his "articulation of a need for FMLA leave and his invocation of his FMLA rights [as] a negative factor in his adverse treatment, including his additional discipline . . . and his termination;" and (3) "by providing additional discipline to Plaintiff and terminating Plaintiff and not properly designating his leave" as FMLA. 20 (Compl. ¶¶ 39, 41, 44.) In other words, Plaintiff's claim for "interference" is based on allegations that Defendant took adverse employment actions against him "because of" his invocation of FMLA rights. 21 As in the Lichtenstein 20 Plaintiff's claim that Defendant did not properly designate his leave as FMLA leave is not supported by the record evidence. Defendant approved Plaintiff's FMLA leave request and referred to it as FMLA leave in the March 26, 2013 letter explaining that Defendant was willing to cover Plaintiff's health benefits during his already-approved period of FMLA leave, and that his employment would not officially terminate until at least April 30, 2013, even if he [*39] did not sign the Release. 21 Similarly, Plaintiff's motion for full summary judgment on his interference claim is based on "the time line of what occurred after he requested FMLA leave, the trivial reasons articulated Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 9 of 18 Page 10 of 18 Duncan v. Chester Cnty. Hosp. cases, therefore, Plaintiff's interference claim is actually a claim of retaliation. The conclusory allegations in the Complaint-that Plaintiff "was entitled to FMLA benefits and was denied them" and that "Defendant's conduct interfered" with Plaintiff's FMLA rights (Compl. ¶¶ 38, [*38] 40)-do not distinguish Plaintiff's interference claim from a retaliation claim because they are supported by specific allegations that constitute a retaliation claim. Similar to the facts in the Lichtenstein cases, where the plaintiff did not actually claim that any FMLA benefits were withheld, Defendant actually approved Plaintiff's FMLA leave request, and was prepared to continue his health benefits for the already- approved FMLA leave period even after he was terminated. In sum, based on the allegations in the Complaint, Plaintiff's FMLA interference claim is "clearly redundant" to his retaliation claim because his "interference" allegations concern, and are tied to, allegedly retaliatory conduct. See "Lichtenstein I," 691 F.3d at 312 n.25. There is one possible exception as to the redundancy of Plaintiff's interference claim, which concerns Plaintiff's allegations regarding his right to reinstatement following FMLA leave. "When an employee returns from FMLA leave, the employer must restore the employee to the same or equivalent position he held, with equivalent benefits and with conditions of employment comparable to those he had when he left." Ross, 755 F.3d at 191 (citing 29 U.S.C. § 2614(a)). As the Third Circuit has noted, "it would be patently absurd if an employer who wished to punish an employee for taking FMLA leave could avoid liability simply by firing the employee before [*40] the leave begins." Erdman, 582 F.3d at 508. "But the question is not whether an employer may escape liability altogether; the question is whether such action constitutes interference with the employee's FMLA rights, retaliation against the employee, or both." Id. Plainly, an employee who is fired after requesting FMLA leave but before the leave begins could potentially recover for retaliation, because the Third Circuit considers "taking" FMLA leave as both invoking those rights and actually commencing leave. See id. at 509 (stating that "this Court has never held that an employee fired after requesting FMLA leave but before for termination, the failure to follow the Progressive Disciplinary System, and the fact [that] Plaintiff's immediate supervisors (Quinn and Lombardo) testified he was not fired because of his performance." (Pl.'s Mem. Supp. Mot. Summ. J. at 22.) These arguments support Plaintiff's theory of the case concerning his FMLA retaliation claim, rather than an interference claim. the leave begins cannot recover for retaliation" and that "we interpret the requirement that an employee 'take' FMLA leave to connote invocation of FMLA rights, not actual commencement of leave."). As for interference, the Third Circuit has previously noted that "if an employee is discharged during or at the end of a protected leave for a reason unrelated to the leave, there is no right to reinstatement." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 141 (3d Cir. 2004) (citing 29 C.F.R. § 825.216(a) 22 ), holding modified by Erdman v. Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009). Stated differently, "the FMLA does not provide employees with a right against termination for a reason other than interference with rights under the FMLA." Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007) (citing [*41] 29 U.S.C. § 2614(a)(3)(B) 23 ). In this case, Plaintiff was terminated before his approved leave was scheduled to commence. As discussed above, Defendant offered to continue providing Plaintiff's health benefits during the previously- approved FMLA leave period, but it would no longer employ Plaintiff following the conclusion of the leave period. Thus, it is arguable that Plaintiff's right to reinstatement following his leave could be considered as having been withheld. At the same time, however, the right to reinstatement was "withheld" "because of" the allegedly retaliatory termination and [*42] other adverse employment actions, as Plaintiff himself repeatedly framed the issue in the Complaint. For example, Plaintiff alleged that (1) "Defendant perpetrated specific activity towards Plaintiff from February 18, 2013 onwards to interfere with his FMLA rights and to pre-emptively make an ongoing record of discipline against him and then terminate him to pre- emptively deprive him of FMLA rights, including his right to reinstatement at an equivalent position . . ."; (2) "terminating him as Defendant did on March 26, 2013 22 29 C.F.R. § 825.216(a) states that "[a]n employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment." 23 29 U.S.C.A. § 2614(a)(3)(B) provides that "[n]othing in this section shall be construed to entitle any restored employee to . . . any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave." Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 10 of 18 Page 11 of 18 Duncan v. Chester Cnty. Hosp. and offering a settlement agreement and release before the full provision of FMLA rights has been concluded is inherently coercive and interferes with his FMLA rights and retaliation for assertion of FMLA rights;" and (3) "Defendant's conduct interfered with Plaintiff's FMLA rights and retaliated against him for invoking them, including but not limited to his right to reinstatement." (Compl. ¶¶ 27, 29, 30.) These reinstatement-specific allegations are, in form and substance, allegations that Defendant retaliated against Plaintiff and that as a result, he lost his right to reinstatement following FMLA leave. Elsewhere in the Complaint, however, Plaintiff alleged that [*43] "[i]ntent is not necessary to establish interference under the FMLA" but that, "[a]lternatively, Defendant intended to deprive Plaintiff of rights under the FMLA, including the right to reinstatement." (Compl. ¶ 42-43.) Those paragraphs raise the issue of reinstatement without tying it to retaliation. But even assuming that Plaintiff pled the job restoration aspect of his FMLA interference claim in a manner that is not duplicative of his retaliation claim, a reasonable jury could not find that Plaintiff would not otherwise have been fired from his job. As discussed more fully below in connection with Plaintiff's retaliation claim, the record evidence shows that Defendant would have fired Plaintiff even if he had not requested, and received approval for, a period of FMLA leave for his knee surgery. 24 Thus, in light of the above discussion, Defendant is entitled to summary judgment on Plaintiff's [*44] FMLA interference claim because (1) with respect to the majority of his allegations in Count One, it is in form and substance an FMLA retaliation claim; and (2) Plaintiff has not stated an interference claim for Defendant's failure to reinstate him to his position following the leave period because Defendant would have terminated his employment regardless of his FMLA leave request. 25 24 As noted above, Plaintiff disputes Defendant's, and his own, earlier assertions that he cancelled the surgery before he was terminated. When Plaintiff actually cancelled his surgery is not a material issue of fact for his interference claim, however- the issue is whether he would have been fired regardless of his FMLA needs. 25 The Court has reviewed all of the parties' various arguments in support of their respective positions urging summary judgment in their favor on Count One. For example, the parties also disagree about whether, in light of Plaintiff's surgery being cancelled, any FMLA benefits were actually withheld. Having found that Plaintiff's FMLA interference claim is either Plaintiff's Motion for Partial or Full Summary Judgment on his FMLA interference claim must therefore be denied, and Defendant's Motion for Summary Judgment on Plaintiff's FMLA interference claim must be granted. B. Count Two: FMLA Retaliation Plaintiff [*45] asserts that, after he invoked his right to FMLA benefits, he suffered adverse employment actions or decisions that were causally related to his invocation and/or exercise of FMLA rights. (Compl. ¶¶ 48-50.) Specifically, Plaintiff alleges that he was "unlawfully terminated, retaliated, and otherwise discriminated against" because of his FMLA-protected conduct. (Id. ¶ 51.) The FMLA provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter and that "[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." 29 U.S.C. § 2615(a)(1)-(2). "Because FMLA retaliation claims require proof of the employer's retaliatory intent, courts have assessed these claims through the lens of employment discrimination law. Accordingly, claims based on circumstantial evidence have been assessed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), while claims based on direct evidence have been assessed under the mixed-motive framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 276-77, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (O'Connor, J., concurring)." Lichtenstein I, 691 F.3d at 302. In this case, the nature of Plaintiff's [*46] claim and supporting allegations requires application of the McDonnell Douglas burden- shifting framework. Under the McDonnell Douglas model, the plaintiff is first required to set forth sufficient evidence to establish a prima facie case by showing that: "(1) s/he is a member of a protected class; (2) s/he was qualified for the position s/he sought to attain or retain; (3) s/he suffered an adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of intentional discrimination." Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008) (citing duplicative of his FMLA retaliation claim, or fails because Plaintiff would have been fired in the absence of seeking FMLA leave, the Court does not discuss the parties' other arguments or their merits. Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 11 of 18 Page 12 of 18 Duncan v. Chester Cnty. Hosp. McDonnell Douglas, 411 U.S. at 802; Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066 n.5 (3d Cir. 1996) (en banc)). "[T]he elements of a prima facie case depend on the facts of the particular case." Jones v. Sch. Dist. of Phila., 198 F.3d 403, 411 (3d Cir. 1999). To establish a prima facie case of FMLA retaliation, Plaintiff must show that "(1) []he invoked [his] right to FMLA-qualifying leave, (2) []he suffered an adverse employment decision, and (3) the adverse action was causally related to [his] invocation of rights." Lichtenstein I, 691 F.3d at 302. 1. Prima Facie Case The record evidence shows that Plaintiff invoked his right to FMLA-qualifying leave by notifying Defendant of his need for knee surgery and by completing the related paperwork. In addition, the evidence reveals that Plaintiff suffered an adverse employment decision when his employment [*47] with Defendant was terminated. 26 Thus, the Court need only analyze the third element of a prima facie case of FMLA retaliation-whether the adverse action was causally related to Plaintiff's invocation of FMLA rights. "To demonstrate a prima facie case of causation, [a plaintiff] must point to evidence sufficient to create an inference that a causative link exists between [the] FMLA leave and [the] termination." Lichtenstein I, 691 F.3d at 307 (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-81 (3d Cir. 2000)). "When the 'temporal proximity' between the protected activity and adverse action is 'unduly suggestive,' this 'is sufficient standing alone to create an inference of causality and defeat summary judgment.'" Id. (quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007)). "Where the temporal [*48] proximity is not 'unusually suggestive,' [courts must] ask whether 'the proffered evidence, looked at as a whole, may suffice to raise the inference.'" LeBoon, 503 F.3d at 232 (quoting Farrell, 206 F.3d at 280 (internal citation and 26 Defendant argues that Plaintiff cannot demonstrate that he was engaged in FMLA-protected conduct because his reason for taking leave never occurred. (See Def.'s Mem. Supp. Mot. Summ. J. 12-13.) Even though Plaintiff's knee surgery ultimately never took place, Plaintiff requested FMLA leave and completed the necessary paperwork. Thus, Plaintiff invoked his right to FMLA leave. See Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009) (stating that "we interpret the requirement that an employee 'take' FMLA leave to connote invocation of FMLA rights, not actual commencement of leave."). quotation marks omitted)). "Among the kinds of evidence that a plaintiff can proffer are intervening antagonism or retaliatory animus, inconsistencies in the employer's articulated reasons for terminating the employee, or any other evidence in the record sufficient to support the inference of retaliatory animus." LeBoon, 503 F.3d at 232-33 (citing Farrell, 206 F.3d at 279-81); see also Reaves v. Pa. State Police, 597 F. App'x 92, 97 (3d Cir. Jan. 8, 2015) ("Such evidence may include a temporal proximity between the protected activity and the adverse action, antagonistic behavior on the part of the employer, inconsistencies in the employer's articulated reasons for taking the adverse action, or any other evidence that supports an inference of retaliatory animus.") (internal citations omitted). Importantly, the Third Circuit has noted that "each case must be considered with a careful eye to the specific facts and circumstances encountered." Farrell, 206 F.3d at 279 n.5 (citation omitted). a. Temporal Proximity As stated above, temporal proximity alone may be sufficient to establish a causal link and thus state a prima facie case of retaliation if it is [*49] unusually suggestive. See LeBoon, 503 F.3d 217, 232 ("[T]emporal proximity alone, when 'very close,' can in some instances establish a prima facie case of retaliation.") (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001)). It bears emphasizing, however, that "'it is causation, not temporal proximity [or evidence of antagonism], that is an element of plaintiff's prima facie case, and temporal proximity [or antagonism] merely provides an evidentiary basis from which an inference can be drawn.'" Tenney v. City of Allentown, No. Civ.A.03-3471, 2004 U.S. Dist. LEXIS 24183, 2004 WL 2755538, at *3 (E.D. Pa. Nov. 30, 2004) (quoting Farrell, 206 F.3d at 281). The Third Circuit has previously found that a temporal proximity of two months between protected activity and an adverse employment action was not unduly suggestive. See Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir. 2004); but see Sgro v. Bloomberg L.P., 331 F. App'x 932, 936, 939 (3d Cir. 2009) (finding timing suggestive where the plaintiff initiated a federal lawsuit approximately six weeks before being terminated for refusing to increase his workload where the court also found that a reasonable jury could find that the employer's explanation was pretextual); but see also Fasold v. Justice, 409 F.3d 178, 190 (3d Cir. 2005) (finding a temporal proximity of Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 12 of 18 Page 13 of 18 Duncan v. Chester Cnty. Hosp. "less than three months" could provide an evidentiary basis from which to draw an inference of retaliation) (citation omitted). Timing of a matter of days between protected activity and alleged retaliation, however, can support an inference of causation. See Williams, 380 F.3d at 760 (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) [*50] (finding that two days was suggestive and could support a prima facie case of causation); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003) (finding that ten days between a supervisor's comments that were suggestive of retaliation and an employee's termination, along with other evidence of retaliation, was sufficient to establish a prima facie case of causation)); see also Lichtenstein I, 691 F.3d at 307 (finding timing suggestive where termination occurred seven days after plaintiff invoked right to FMLA leave). Here, the temporal proximity between Plaintiff's request for FMLA leave and his termination is not so suggestive that, by itself, it raises an inference of causation. Plaintiff initially spoke to human resources about FMLA leave on February 20, 2013, and notified his supervisors of his intentions regarding FMLA leave on February 21, 2013. Plaintiff's FMLA leave request was subsequently approved on March 19, 2013, the day after Plaintiff's physician returned the medical certification forms. Following meetings with supervisors on March 20 and 22, 2013, Plaintiff was notified that his employment was being terminated on March 26, 2013. Thus, while Plaintiff was formally terminated one week after his FMLA leave was officially approved, the termination occurred more than one month after Plaintiff first gave Defendant notice of his need for, and intention to take, FMLA leave. Importantly, the delay in approval appears to be based on the date on which Defendant ultimately received the [*51] certification from Plaintiff's treating physician. Given the unique facts of this case, therefore, a temporal proximity of one week between leave approval and termination, or one month between notice of intent to take FMLA leave and termination, is not unduly suggestive. Since the temporal proximity between Plaintiff's FMLA leave request and his termination is not unduly suggestive, the Court will consider the record evidence as a whole. See LeBoon, 503 F.3d at 232 ("Where the temporal proximity is not 'unusually suggestive,' [courts must] ask whether 'the proffered evidence, looked at as a whole, may suffice to raise the inference.'") (quoting Farrell, 206 F.3d at 280 (internal citation and quotation marks omitted)). Specifically, the Court considers (1) whether there was any intervening antagonism on Defendant's part between the dates of Plaintiff's FMLA leave request and his termination, or any indications that Defendant acted with retaliatory animus; (2) any inconsistencies in Defendant's articulated reasons for terminating Plaintiff; and (3) any other evidence in the record sufficient to support an inference of retaliatory animus. See LeBoon, 503 F.3d at 232-33 (citing Farrell, 206 F.3d at 279-81). b. Intervening Antagonism and Retaliatory Animus As stated above, more than one [*52] month elapsed between Plaintiff's notice to Defendant that he intended to take FMLA leave and Defendant's notification to Plaintiff that it was terminating his employment. Nonetheless, "the 'mere passage of time is not legally conclusive proof against retaliation.'" Washco v. Fed. Express Corp., 402 F. Supp. 2d 547, 560 (E.D. Pa. 2005) (quoting Robinson v. SEPTA, 982 F.2d 892, 894 (3d Cir. 1993)). "Where a long period of time has passed between the protected activity and the adverse employment action, 'a plaintiff can establish a link between his or her protected behavior and subsequent discharge if the employer engaged in a pattern of antagonism in the intervening period.'" Id. (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997)). Measuring from the date of Plaintiff's initial FMLA discussion with Defendant's human resources department on February 20, 2013, there were six events that Plaintiff now considers part of Defendant's antagonism: (1) the February 26, 2013 written warning stemming from a contamination incident earlier that month; (2) the March 13, 2013 meeting where Quinn refused to meet with Plaintiff; (3) the issuance on March 20, 2013 of Quality Action Forms; (4) Scelsa's March 20, 2013 meeting with Plaintiff; (5) the termination of Plaintiff's work passwords and the subsequent phone call from Felicetti on March 20, 2013; and (6) the [*53] meeting between Plaintiff, Felicetti, and Adkins on March 22, 2013. Based on a careful review of the record evidence, these events neither raise any factual inference of a pattern of intervening antagonism stemming from Plaintiff's FMLA request, nor demonstrate retaliatory animus. The Court discusses each of the events identified by Plaintiff individually. First, the written warning-which was ultimately withdrawn-was based on a contamination incident that occurred on February 14, 2013, which was prior to the date Plaintiff notified Defendant of his intent to take Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 13 of 18 Page 14 of 18 Duncan v. Chester Cnty. Hosp. FMLA leave. 27 While Plaintiff did not receive the written warning until after making his FMLA request, the delay was due to one of his supervisors being out of the office. A reasonable jury, therefore, could not find that the written warning stemming from the contamination incident was part of a pattern of antagonism or that it demonstrated retaliatory animus. 28 Second, Plaintiff has not set forth any evidence to establish that Quinn's knowledge of Plaintiff's FMLA request was connected to his refusal to meet with Plaintiff on March 13, 2013. Plaintiff testified at his deposition that he did not know whether Quinn was 27 Plaintiff asserts that, because Quinn did not obtain a new sterile tray after Plaintiff contaminated it, there is a jury issue as to whether the discipline was retaliatory. (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 5.) Plaintiff cites only his Second Affidavit in support of [*54] his assertion that Quinn did not do anything about the contamination and continued with the procedure. In light of the fact that the warning was ultimately withdrawn after Plaintiff complained about the time delay between the contamination incident and his receipt of the written warning, tangential details about what happened during the procedure after Plaintiff contaminated the tray do not create genuine issues of material fact with respect to whether Plaintiff has established a prima facie case of retaliation based on this event. 28 Plaintiff claims that Quinn was involved in the decision to revoke the written warning, but the record evidence he cites in support of that claim does not support his theory of events. (See Pl.'s Disputed Genuine Issues of Material Fact ¶ 8 ("In the [March 13, 2013] meeting, management including Quinn decided to revoke the Final Written Warning but Quinn then refused to meet with Plaintiff.") (citing Felicetti Dep. 84:1- 92:21; Scelsa Dep., Scelsa Ex. 6 at 1).) Felicetti testified in her deposition that, during the March 13, 2013 meeting, "we may have solidified again that it was not going to be a write up, just merely performance quality forms," that they [*55] would "reiterate that it wasn't going to be a write up; it was going to be education," that she did not know whether Quinn knew prior to the meeting that the written warning would be changed to a quality action form, and that "physicians in [Quinn's] role, they are not there to say who gets written up or who doesn't . . . out of courtesy we might have made him aware. But whether he agreed or disagreed, that wouldn't have been our concern." (Felicetti Dep., 85:19-21, 87:20-22, 91:8-21, 92:11-16.) Scelsa's notes reflect that she and Felicetti met with Plaintiff on March 13 to discuss the outcome of the meeting with Quinn, and that she and Felicetti discussed with Plaintiff the decision to change the final written warning to a Quality Action Form. (Scelsa Dep., Ex. 6.) Plaintiff's interpretation of Felicetti's deposition testimony and Scelsa's notes is simply not accurate. even aware that he had requested FMLA leave. (Plaintiff Dep. [*56] 131:6-133:23.) Quinn testified that he knew Plaintiff had requested FMLA leave "sometime in early spring," but that he did not know the exact date. (Quinn Dep. 33:22-25.) Defendant set up the meeting to try to resolve the workplace tension between Quinn and Plaintiff, which tends to show that Defendant was working to try to improve Plaintiff's working conditions, not to retaliate against him. Quinn's refusal to meet with Plaintiff on March 13, 2013 was consistent with the way Quinn had behaved towards Plaintiff since at least June of 2012. Even if Quinn's distrust of and behavior towards Plaintiff on the date of that meeting could be attributed to Defendant, they cannot be reasonably inferred to be related to Plaintiff's FMLA request. Thus, a reasonable jury could not find that the March 13, 2013 meeting was part of a pattern of antagonism or was evidence of retaliatory animus. Third, the Quality Action Forms were issued based on events that occurred during the first quarter of 2013. The specific forms that were not completely filled out, and for which Plaintiff received Quality Action Forms, were from patient procedures on January 10, 2013, and February 7, 2013. 29 (DSUMF ¶ 62; Def.'s [*57] Ex. S, Plaintiff Dep., Ex. 5.) At least one other employee also received a Quality Action Form around the same time. The fact that Defendant issued forms to educate Plaintiff on his errors after a quarterly review 30 of its employees' paperwork does not establish that Defendant was engaging in a pattern of antagonism, nor does it show retaliatory animus. Plaintiff makes much of the fact that Scelsa was the one who presented him with the Quality Action Forms, rather than a lower-level employee. Plaintiff's opinion that the infractions were "small items that were being dramatized into major issues by the way they were presented to [him]," however, is not evidence sufficient to withstand a summary judgment motion. 29 Both of these errors occurred prior to Plaintiff requesting FMLA leave. 30 Plaintiff states that he "[does not] know how [Lombardo] claims her review was 'regularly scheduled'" and that to his knowledge, "she did not give QA Forms to anyone and did not give any to me before my FMLA leave." (Second Plaintiff Aff. ¶ 10.) Plaintiff's opinion of whether Lombardo regularly conducted reviews of procedure forms that employees complete is not a fact on which he can rely in opposing Defendant's Motion for Summary Judgment. Even if true, the fact that Plaintiff had not previously received a Quality Action Form from Lombardo is not evidence that these Quality Action Forms must, as Plaintiff claims, be in retaliation for his FMLA leave request. Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 14 of 18 Page 15 of 18 Duncan v. Chester Cnty. Hosp. (See Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 15 (citing Second Plaintiff Aff. ¶ 9).) 31 Again, the fact that Defendant generated written records and counseling forms as a result of Plaintiff's errors on the job-errors which Plaintiff does not deny making 32 -is merely evidence that Defendant documented its employees' mistakes, including those of Plaintiff, rather than ignore them. Plaintiff did not become immune from discipline or correction regarding his work performance by making an [*58] FMLA leave request. A reasonable jury could not find that Defendant was engaging in a pattern of antagonism or acting with retaliatory animus, simply because Defendant documented Plaintiff's mistakes in the time following his FMLA leave request. Fourth, based on the record evidence submitted by the parties, Scelsa's meeting with Plaintiff on March 20, 2013 was a back-and-forth discussion between Plaintiff and Scelsa regarding the Quality Action Forms and their significance, as well as other topics including Plaintiff's desire to work in a different department and communications Plaintiff had with an employee in another department about Plaintiff's working environment. Plaintiff characterizes the meeting as one which "was calculated to upset [him]" but cites only his own Second Affidavit in support of his assertion. 33 (See Second Plaintiff Aff. ¶ 11.) The record evidence, however, does not establish that it was some sort of punitive meeting intended to hassle Plaintiff. 31 Plaintiff cites Paragraph Nine of his Second Affidavit, but he appears to be referencing content that actually appears in Paragraphs Ten and Eleven of that document. 32 Plaintiff asserts that one of the omissions "could have [*59] been the fault of the nurse" because "[u]nder some circumstances, it was the responsibility of the person in the back who would do the ancillary service of signing the form because Plaintiff was supposed to be sterile at the time." (See Pl.'s Resp. in Opp'n to DSUMF ¶¶ 63-64.) 33 The Third Circuit has previously observed "that 'conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment.'" Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009) (citing Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002)). Rather, "the affiant must set forth [*60] specific facts that reveal a genuine issue of material fact." Id. (citing Blair, 283 F.3d at 608; Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985); Fed. R. Civ. P. 56(e)(2) ("When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial.")). Fifth, Plaintiff's work passwords were terminated based on his behavior following his meeting with Scelsa, including the removal of some of his personal items from the workplace as well as remarks that he made to other employees. According to Defendant, the termination of those passwords was part of an easily- reversible procedure utilized if employees leave the workplace when they are very upset. Plaintiff essentially argues that because his action in taking home personal items would not have been characterized as insubordination, Defendant should not have taken any action in response to that behavior. (See, e.g., Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 17-18.) But contrary to Plaintiff's view, an employer is not prohibited from taking precautionary measures, such as limiting network access if an employee leaves the workplace in an agitated state, simply because [*61] that employee has recently made a request for FMLA leave. A reasonable jury could not find that Defendant's reversible precautions in terminating Plaintiff's passwords under those circumstances was part of a pattern of antagonism or that it demonstrated retaliatory animus. Finally, the meeting on March 22, 2013 appears to have been called in response to a culmination of problems Plaintiff had been having in the workplace. Those problems include certain instances of Plaintiff's behavior during the previous year, including on March 20, 2013; Plaintiff's statements about his desire to work outside the IR department; and the ongoing tension between Quinn and Plaintiff. Plaintiff argues that, because "Defendant acknowledges that Plaintiff did nothing insubordinate" during the March 22 meeting but he "winds up being fired" anyway, the meeting was "remarkable" and "unprecedented" and therefore evidence of retaliation. (See Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 12.) The absence of insubordinate conduct during that meeting, however, would not negate Defendant's ability to decide to terminate Plaintiff's employment on the basis of numerous other concerns. In spite of Plaintiff's opinion regarding [*62] the "unprecedented" nature of the meeting, a reasonable jury could not find that the March 22, 2013 meeting was part of a pattern of ongoing antagonism or that it was evidence of retaliatory animus. Whether viewed individually or in totality, these events show that Plaintiff was counseled regarding errors in the workplace, that there were ongoing discussions and attempts to resolve the workplace issues Plaintiff continued to experience with Quinn, and that Plaintiff's behavior and attitude at work had become problematic. While Plaintiff repeatedly asserts that Defendant had not Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 15 of 18 Page 16 of 18 Duncan v. Chester Cnty. Hosp. had problems with Plaintiff's workplace performance in the past, part of Defendant's motivation for convening the various meetings appears to be connected to Plaintiff's personality and behavior. Plaintiff himself points out that his supervisor "concede[d] Plaintiff is more sensitive than many employees." (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 3 n.2 (citing Lombardo Dep. 38).) Specifically, when Plaintiff's counsel asked Lombardo about her observations regarding Plaintiff's ability to get upset about things, she said "[e]asily he gets upset." (Lombardo Dep., 38:15-17.) In addition, Defendant took several of the actions Plaintiff [*63] complains of in whole or in part because of events that predate Plaintiff's FMLA leave request-specifically, the contamination incident and subsequent related discussions, the incomplete timeout forms and the Quality Action Forms that resulted, and conversations and meetings regarding the problems between Plaintiff and Quinn. Plaintiff argues that allowing the firing of an employee who has been approved for FMLA leave for "subjective, non-disciplinary reasons" "will be a disaster for the law if employers think the reasons here for termination will not lead to poor consequences." 34 (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 27-28.) Plaintiff's argument, however, goes too far-Defendant did not become barred from firing an at-will employee due to workplace behavior and performance issues simply because that employee had been approved for FMLA leave. In sum, and in light of the foregoing discussion, a reasonable jury could not find that Defendant engaged in a pattern of antagonism or demonstrated retaliatory animus in its actions. The Court finds, therefore, that Plaintiff has not established a prima facie case of retaliation based on his assertions that the six events described above were antagonistic or demonstrate retaliatory animus stemming from his FMLA leave 34 Plaintiff also argues that, because Defendant did not "engage its own Progressive Disciplinary System," Defendant cannot show that it would have fired him in the absence of his FMLA request. (See, e.g., Pl.'s Mot. Summ. J. 3.) Defendant's progressive discipline policy, however, states that Defendant "reserves the right to terminate employees at [*64] any time for any reason." (See Def.'s Reply 8 (citing Def.'s Ex. 6, Chester County Hospital's Employee Performance Improvement Policy ¶ F).) Thus, the fact that Defendant did not employ progressive discipline prior to terminating Plaintiff for the stated reasons is not automatic proof that Defendant acted in a retaliatory manner, nor does it prevent Defendant from arguing that it would have fired Plaintiff even if he had not requested FMLA leave. request. c. Inconsistencies in the Reasons for Termination The Court next discusses whether there are any inconsistencies in Defendant's articulated reasons for terminating Plaintiff. "Evidence that the employer gave inconsistent reasons for terminating the employee may be relied upon to show a connection between the protected activity [*65] and the adverse employment action." Carter v. Potter, No. Civ.A.02-7326, 2004 U.S. Dist. LEXIS 25677, 2004 WL 2958428, at *9 (E.D. Pa. Dec. 21, 2004) (citing Farrell, 206 F.3d at 281). Plaintiff asserts that Defendant gave "subjective pretextual reasons" 35 for terminating his employment. (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 17.) Plaintiff considers the following "three areas of somewhat differing reasons for firing Plaintiff" as having been "dramatized" and as "pretexts for firing Plaintiff": (1) Plaintiff's activity over the last few days of his employment led to his termination, in part because he took home pictures and personal items and "allegedly" said he wasn't going to return; (2) Plaintiff "allegedly" said at one point that he did not want to be in his position in the IR department; and (3) Plaintiff's toxic relationship with Quinn. (Id. at 17-19.) In support of his assertions that Defendant's reasons for his termination [*66] were "pretextual," Plaintiff first argues that he was actually fired "because Quinn could not live with [Plaintiff's] FMLA request" and that "Defendant does not get to act on behalf of a FMLA retaliator to finish the job." (See Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 17-18.) Plaintiff's theory that Quinn was for some reason upset that Plaintiff was going to take FMLA leave, however, does not render Defendant's explanation for its decision to terminate Plaintiff "inconsistent." Whatever Quinn's feelings on Plaintiff's need for FMLA leave, such feelings would be independent of, and unrelated to, those aspects of Plaintiff's workplace conduct in the last weeks of Plaintiff's employment that Defendant found troubling. Plaintiff asserts, without citation to the record, that "Quinn could not get over his retaliatory approach to 35 Plaintiff repeatedly refers to Defendant's reasons as "pretext" or "pretextual" in his briefing, but it appears from Plaintiff's arguments that he intends this to mean that the reasons are inconsistent with each other and with Plaintiff's view of events. Accordingly, Plaintiff's arguments are addressed here with respect to the various types of evidence which can establish a prima facie case of retaliation. Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 16 of 18 Page 17 of 18 Duncan v. Chester Cnty. Hosp. Plaintiff, and [Defendant] implemented it." (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 12.) But there is simply not sufficient evidence in the record to enable a reasonable jury to reach such a conclusion. Second, Plaintiff asserts that he only requested a transfer to a different department, and did not want to completely end his employment with Defendant. (Pl.'s Resp. [*67] Opp'n Def.'s Mot. Summ. J. 18.) According to Plaintiff, because he was not fired after expressing his interest in a transfer to Scelsa on February, 19, 2013, there is a fact issue as to "pretext for retaliation." (Id. at 18-19.) Specifically, Plaintiff posits that "[i]t is puzzling why a request to management known at least a month before the termination is anything other than a pretext." (Id. at 18.) As discussed above, however, several events occurred subsequent to Plaintiff's meeting with Scelsa which led to Defendant's decision to terminate Plaintiff's employment. The fact that Plaintiff was fired only after Defendant possessed multiple reasons for terminating Plaintiff's employment, rather than being fired immediately in response to expressing interest in transferring, does not mean that the reasons Defendant gave for the termination are "inconsistent" or a "pretext." Finally, Plaintiff argues that the timing of his firing, which occurred after many months of the "toxic relationship" between himself and Quinn, demonstrates that Defendant is "being disingenuous by claiming that Plaintiff had a toxic work relationship with Quinn" because it was Quinn who had the problem, and because "[i]t was only when Plaintiff [*68] requested FMLA leave that Quinn took this situation to the next level and this suddenly became grounds for termination." (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 19.) This argument fails on two levels. First, Plaintiff's repeated assertions that Quinn's behavior escalated following Plaintiff's FMLA request is not supported by the deposition testimony submitted by the parties. Second, Defendant would not be prevented from considering the problems between Plaintiff and Quinn in deciding whether to fire Plaintiff on that basis, simply because Quinn was aware of Plaintiff's FMLA request. In sum, the reasons Defendant gave 36 for its decision to 36 Plaintiff asserts that Defendant presented "belated claimed reasons" for Plaintiff's termination in its briefing, and that defense counsel's arguments are "first time claims" and therefore evidence of [*69] pretext. (See Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 15-16.) Defense counsel's use of the word "insubordination" as a means to illustrate a legal terminate Plaintiff's employment were not inconsistent over time or with each other, but rather represent an accumulation of reasons that ultimately led to the decision to fire Plaintiff. Accordingly, Plaintiff has not established a prima facie case of retaliation related to his FMLA leave request on the basis of inconsistent reasons for his termination. d. Other Evidence Finally, the Court addresses whether Plaintiff can rely on Defendant's March 26, 2013 letter-which detailed Plaintiff's various options in light of his termination and Defendant's proposed release of claims-in order to establish a prima facie case of FMLA retaliation. Plaintiff asserts that Defendant "tried to get Plaintiff to surrender his FMLA rights in exchange for a small severance package," (Pl.'s Mem. Supp. Mot. Summ. J. 18), and that Defendant's action in firing "an FMLA-approved individual and attempt[ing] to get him to sign a release of all claims" is evidence that Defendant would not have been able to prove that Plaintiff would have lost his job had he not made a request for FMLA leave. (Id. at 22.) As a preliminary matter, Plaintiff's current argument contradicts his deposition testimony, in which he stated that he understood that he did not have [*70] to sign the Release in order to use his FMLA leave and continue to receive health benefits long enough to cover the surgery. (See Plaintiff Dep. 329:24-331:3.) Contrary to Plaintiff's current position, Defendant did not make Plaintiff's ability to have continued health benefits through the duration of the FMLA leave period contingent on Plaintiff signing the Release-rather, they were only contingent on him undergoing surgery prior to a certain date following his termination. The fact that Defendant was going to provide Plaintiff with health benefits and a period of FMLA leave in spite of the termination of his employment, rather than simply firing him-as it can do with any at-will employee-is not evidence of retaliation. On the basis of the above discussion, the Court finds that Plaintiff has not established a prima facie case of retaliation in violation of the FMLA on the basis of temporal proximity, intervening antagonism or retaliatory animus, inconsistent reasons for his termination, or the other evidence Plaintiff identified as proof of retaliation. As Plaintiff has not established a prima facie case of argument in a brief-filed nearly two years after Plaintiff was fired-does not negate or undermine the reasons offered by the specific employees who actually made the decision to fire Plaintiff. Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 17 of 18 Page 18 of 18 Duncan v. Chester Cnty. Hosp. retaliation, the Court need not address the remaining stages of the burden-shifting [*71] analysis. Accordingly, Defendant's Motion for Summary Judgment with respect to Count Two is granted. IV. CONCLUSION In light of the foregoing, the Court finds that Plaintiff has not established the existence of genuine issues of material fact with respect to Counts One or Two. Therefore, the Court must deny Plaintiff's Motion for Partial or Full Summary Judgment. By contrast, and as discussed above, the Court finds that Defendant has established its right to summary judgment as to both Count One and Count Two. An appropriate Order follows. ORDER AND NOW, this 29th day of March, 2016, upon consideration of (1) Plaintiff Patrick Duncan's Motion for Partial or Full Summary Judgment (Docket No. 31), Plaintiff's Proposed Undisputed Statement of Facts (Docket No. 32), Defendant Chester County Hospital's Response in Opposition to Plaintiff's Motion for Partial or Full Summary Judgment (Docket No. 36), and Defendant's Response to Plaintiff's Proposed Undisputed Statement of Facts (Docket No. 37); (2) Defendant's Motion for Summary Judgment (Docket No. 33), Defendant's Statement of Undisputed Material Facts (Docket No. 34), Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment [*72] (Docket No. 42), Plaintiff's Statement of Disputed Genuine Issues of Material Fact (Docket No. 43), Plaintiff's Response to Defendant's Statement of Undisputed Material Facts (Docket No. 44), and Defendant's Reply (Docket No. 47); and (3) Plaintiff's Memorandum of Law Supplementing His Summary Judgment Positions (Docket No. 53) and Defendant's Response (Docket No. 54), it is hereby ORDERED that Plaintiff's Motion for Partial or Full Summary Judgment is DENIED and Defendant's Motion for Summary Judgment is GRANTED. JUDGMENT IS ENTERED for Chester County Hospital against Patrick Duncan on the entirety of the Complaint. This case is CLOSED. It is so ORDERED. BY THE COURT: /s/ Lawrence F. Stengel LAWRENCE F. STENGEL, J. End of Document Case 3:16-cv-01055-JMM Document 14-5 Filed 09/01/16 Page 18 of 18 Cited As of: September 1, 2016 10:45 AM EDT Duran v. Cnty. of Clinton United States District Court for the Middle District of Pennsylvania September 25, 2015, Decided; September 25, 2015, Filed CIVIL ACTION NO. 4:14-CV-2047 Reporter 2015 U.S. Dist. LEXIS 128801; 2015 WL 5675580 THOMAS V. DURAN, Plaintiff v. COUNTY OF CLINTON, JEFFREY SNYDER, ROBERT SMELTZ, and JOEL LONG, Defendants Core Terms termination, rights, defendants', alleges, tortious interference, retaliation claim, at-will, motion to dismiss, employment contract, expiration, renewal, official capacity, procedural due process claim, cause of action, public policy, deprivation, municipal, third party, wrongful discharge, property interest, asserts, factual allegations, state law, custom, entity, breach of contract claim, public policy exception, continued employment, wrongful termination, individual capacity Counsel: [*1] For Thomas V. Duran, Plaintiff: Robert F. Englert, LEAD ATTORNEY, RFE LAW FIRM, LLC, Swarthmore, PA. For County of Clinton, Jeffrey Snyder, Clinton County Commissioner, Robert Smeltz, Clinton County Commissioner, Joel Long, Clinton County Commissioner, Defendants: Anthony T. Bowser, Thomas, Thomas & Hafer LLP, Harrisburg, PA. Judges: Christopher C. Conner, Chief United States District Judge. Opinion by: Christopher C. Conner Opinion MEMORANDUM Plaintiff Thomas V. Duran ("Duran") filed the above- captioned action alleging a retaliation claim under the Family and Medical Leave Act ("FMLA"), procedural due process claims under 42 U.S.C. § 1983, and state law claims for wrongful termination, breach of contract, and tortious interference with contract. Presently before the court is a motion (Doc. 5) to dismiss filed by defendants County of Clinton, Jeffrey Snyder, Robert Smeltz, and Joel Long. For the reasons that follow, the court will grant the motion in part and deny it in part. I. Factual Background & Procedural History 1 From 1993 to 1997, and from [*2] 2000 to 2012, Duran was employed by Clinton County, Pennsylvania ("the County") as Warden of the Clinton County Correctional Facility ("the Facility"). (Doc. 1 ¶¶ 6, 16). At all times relevant to the complaint, Jeffrey Snyder served as Prison Board Chairman and Vice-Chairman of the Clinton County Board of Commissioners. (Id. ¶ 9). Robert Smeltz was Chairman of the Clinton County Board of Commissioners and a member of the Clinton County Prison Board. (Id. ¶ 11). Joel Long was a member of both the Clinton County Board of Commissioners and the Clinton County Prison Board. (Id. ¶ 12). Duran avers that the County and the Board of Commissioners "were ultimately responsible for all hiring and firing decisions of any County employee." (Id. ¶ 7). On December 7, 2007, the County entered into an employment contract with Duran. (Doc. 1-2). The employment contract contained the following pertinent provisions: 1 In accordance with the standard of review for a Rule 12(b)(6) motion to dismiss, the court will "accept all well-pleaded facts in the complaint as true and view them in the light most favorable" to Duran. Carino v. Stefan, 376 F.3d 156, 159 (3d Cir. 2004). Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 1 of 12 Page 2 of 12 Duran v. Cnty. of Clinton The term of employment shall commence November 5, 2007, and shall continue for a period of five (5) years, except as otherwise provided in this agreement. . . . The County and The Prison Board may terminate this Agreement only upon a finding of dishonesty or gross malfeasance by the Employee. [*3] . . . No amendment, modification or extension of this Agreement shall be valid or binding upon the parties unless made in writing and signed by the parties. (Id. at 3-5). Duran contends that his employment contract was in force until November 4, 2012, and that it renewed on that day "for an additional five (5) year period." (Doc. 1 ¶¶ 44-45). Between 2003 and 2012, Duran underwent a number of medical procedures for which he was provided accommodations by the County. (Id. ¶¶ 31, 35-37). These accommodations included permitting Duran "to periodically work from home" and "to take leave as necessary to receive medical care and treatment." (Id. ¶ 31). Shortly after Snyder's term on the Board of Commissioners commenced in January of 2012, Snyder questioned Duran about the amount of hours he worked on-site at the Correctional Facility. (Id. ¶ 33). Snyder then demanded Duran's physical presence there for at least eight hours per day. (Id.) Duran replied that he "would do his best" and that he could fulfill his duties from his nearby home. (Id. ¶ 33). On October 5, 2012, Duran sent a memo to members of the Clinton County Prison Board requesting medical leave from October 29, 2012 through November 4, 2012. [*4] (Id. ¶ 39). "A few days" later, Duran was advised that he needed to attend a public prison board meeting on October 24, 2012. (Id. ¶ 40). Duran alleges that at the meeting, Snyder made or directed to be made a motion to suspend Duran's employment, effective on October 25, 2012, and to terminate Duran's employment on November 6, 2012. (Id. ¶ 42). Duran's termination was confirmed at the next scheduled Board of Commissioners meeting. (Id. ¶ 43). Duran's termination became effective on either November 5 or November 6. (Id. ¶¶ 26, 45). 2 2 Duran states in his complaint that his termination was Duran avers that between 2000 and 2012, he "only received exemplary reviews of his performance" as Warden. (Id. ¶ 24). Duran asserts that his medical status "had not been a concern" prior to Snyder's election to the Board of Commissioners. (Id. ¶ 34). The County did not make a finding of Duran's dishonesty or gross malfeasance prior to his termination. (Id. ¶ 48). In his complaint, Duran alleges that his termination resulted from "Mr. [*5] Snyder's and or [sic] the Commissioners' disdain for" his health-related accommodations and request for medical leave. (Id. ¶ 30). On October 23, 2014, Duran filed the complaint (Doc. 1) against the County and Snyder, Smeltz, and Long. Duran asserts against all defendants a retaliation claim under the FMLA, procedural due process claims under 42 U.S.C. § 1983, and a wrongful termination claim. (Id.) Duran also asserts a state law claim for tortious interference with contract against Snyder, Smeltz, and Long, as well as a claim for breach of contract against the County. (Id.) On December 22, 2014, defendants filed the instant motion (Doc. 5) to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). The motion is fully briefed and ripe for disposition. II. Jurisdiction and Legal Standard The court has jurisdiction over the instant matter because the complaint presents a question of federal law. See 28 U.S.C. § 1331. Duran alleges that defendants deprived him of his constitutional rights under color of state law. See 28 U.S.C. § 1343(a)(3). Duran also asserts a cause of action under federal statutory law. See 29 U.S.C. § 2617(a). The court exercises supplemental jurisdiction over the state law claims [*6] for wrongful termination, breach of contract, and tortious interference with contract. See 28 U.S.C. § 1367. These claims are related to and share a "common nucleus of operative facts" with the federal law claims, thus forming part of the same case or controversy. Lyon v. Whisman, 45 F.3d 758, 759-60 (3d Cir. 1995) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1996)). Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. Fed. R. Civ. effective on November 5, 2012. (Doc. 1 ¶¶ 45, 107, 124). Elsewhere in his complaint, he identifies November 6, 2012 as his effective date of termination. (Id. ¶¶ 26, 57). Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 2 of 12 Page 3 of 12 Duran v. Cnty. of Clinton P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine, whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). In addition to reviewing the facts contained in the complaint, the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Federal notice and pleading rules require the complaint to provide "the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). To test the sufficiency of the complaint, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, "the court must [*7] 'tak[e] note of the elements a plaintiff must plead to state a claim.'" Id. at 130 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). Next, the factual and legal elements of a claim should be separated; well- pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Id. at 131; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual allegations, it must determine whether they are sufficient to show a "plausible claim for relief." Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). A claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. When the complaint fails to present a prima facie case of liability, courts should generally grant leave to amend before dismissing a complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). III. Discussion Defendants contend that Duran's factual averments, even accepted as true, are insufficient to establish his entitlement to relief under the FMLA, Section 1983 and the Fourteenth Amendment, and state law governing tortious interference with contract, wrongful termination, and breach of contract disputes. The court will address these issues seriatim. A. [*8] FMLA Claim Defendants argue that Duran has not set forth sufficient factual allegations to sustain a retaliation claim under the FMLA. 3 (See Doc. 6 at 8-10). Specifically, defendants assert that Duran's complaint "fails to plead any facts giving rise to an inference of a causal link between his FMLA request and his separation of employment." (Id. at 10). Duran responds that he has adequately pleaded causation because his complaint shows the "unusually suggestive timing" of his suspension and termination in relation to his requested leave period. (Doc. 7-1 at 16-17). The FMLA was designed in part "to balance the demands of the workplace with the needs of families." 29 U.S.C. § 2601(b)(1). Under the FMLA, an eligible employee is entitled to "12 workweeks of leave during any 12-month period" for certain qualifying events. 29 U.S.C. § 2612(a)(1)(D). Retaliation claims derive from the FMLA's "proscriptive rights," which prohibit discrimination or retaliation against an employee for exercising the substantive rights created by the FMLA. See Rigel v. Wilks, No. 1:03-CV-971, 2006 U.S. Dist. LEXIS 93659, 2006 WL 3831384, at *10 (M.D. Pa. Dec. 28, 2006) (distinguishing between the FMLA's prescriptive or substantive and proscriptive rights). The Third Circuit Court of Appeals has observed that although retaliation claims alleging that an employee was unlawfully terminated for taking FMLA leave do not 3 Duran's complaint is unclear as to whether he asserts claims for interference with his FMLA rights, for retaliation for his exercise of those rights, or for both interference and retaliation. (See Doc. 1 ¶¶ 52-59); see also Cullison v. Dauphin Cty., PA, No. 1:10-CV-705, 2012 U.S. Dist. LEXIS 102576, 2012 WL 3026784, at *6 (M.D. Pa. July 24, 2012) (describing the distinction between FMLA interference and retaliation claims). Defendants address both theories of liability in their supporting brief. (Doc. 6 at 6-10). Duran acknowledges only a retaliation claim in his response, (see Doc. 7-1 at 15- 17), and thus has effectively waived an interference claim. See D'Angio v. Borough of Nescopeck, 34 F.Supp. 2d 256, 265 (M.D. Pa. 1999) (regarding abandonment of a position as tantamount [*9] to waiver). Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 3 of 12 Page 4 of 12 Duran v. Cnty. of Clinton fall within the "literal scope" of 29 U.S.C. § 2615(a)(2), such claims are nevertheless cognizable under 29 C.F.R. § 825.220(c). Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 n.9 (3d Cir. 2004); see also Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 n.10 (3d Cir. 2012) ("[W]e have predicated liability for retaliation based on an employee's exercise of FMLA rights on the regulation itself."). The relevant regulation provides that the FMLA "prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights." 29 C.F.R. § 825.220(c). To establish a retaliation claim, a plaintiff [*10] must demonstrate that "(1) she invoked her right to FMLA- qualifying leave, (2) she suffered an adverse employment decision, and (3) the adverse action was causally related to her invocation of rights." Lichtenstein, 691 F.3d at 301-02. A plaintiff may support the element of a causal link between the FMLA leave and an adverse employment action by showing "(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link." Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir. 2014) (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007)). When the temporal proximity is not unusually suggestive, a plaintiff may still show causation if "the proffered evidence, looked at as a whole, may suffice to raise the inference." LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.2000)). Duran alleges sufficient facts for his FMLA retaliation claim to survive defendants' motion to dismiss. Duran requested medical leave on October 5, 2012. (Doc. 1 ¶ 39). His termination became effective one month later, on or about the day he had planned to return to work full-time. (Id. ¶¶ 42, 45). Further, Duran's chronology of his termination process begins only "a few days after" his leave request. (Doc. 1 ¶ 40). At this stage, these factual allegations are adequate [*11] to support the causation element of a retaliation claim. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177-79 (3d Cir. 1997) (finding that a four-month gap between the alleged protected activity and retaliatory action did not preclude retaliation claim at pleading stage); McDonald v. SEIU Healthcare Pennsylvania, No. 1:13-CV-2555, 2014 U.S. Dist. LEXIS 130670, 2014 WL 4672493, at *18 (M.D. Pa. Sept. 18, 2014) (Conner, C.J.) (stating in motion to dismiss context that "whether the precise timing of defendants' employment actions establishes causation need not be resolved at this stage in the proceedings"); Hines v. Twp. of Harrisburg, Pa., No. 07- 0594, 2012 U.S. Dist. LEXIS 132870, 2007 WL 2907896, at *2 (W.D. Pa. Sept. 30, 2007) (declining to "make a determination as to causation in the context of a motion to dismiss" FMLA retaliation claim). Defendants raise the concern that if Duran's allegations of unusually suggestive timing now suffice, then employers would be "precluded from terminating an employee at the conclusion of a contract period where the employee requests FMLA leave at that time." (Doc. 8 at 6). However, because Duran still faces the burden of establishing a causal relation between his FMLA leave and defendants' alleged retaliation at summary judgment, this concern is unwarranted. See Kachmar, 109 F.3d at 178 (emphasizing that legal outcomes respecting the causation element of retaliation claims may differ depending on the stage of the judicial proceeding). The [*12] court will thus deny defendants' motion to dismiss Duran's FMLA retaliation claim. B. Section 1983 Claims Section 1983 of Title 42 of the United States Code provides a cause of action to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. Section 1983 is not a source of substantive rights, but merely a method for vindicating those rights otherwise protected by federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a claim under Section 1983, a plaintiff must show a deprivation of a "right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law." Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). Defendants do not dispute Duran's contention that defendants Snyder, Smeltz, and Long acted under color of state law. (See Doc. 1 ¶¶ 61, 64, 87). In the case sub judice, Duran alleges that defendants violated his constitutional rights by failing to provide adequate pre-termination and post-termination procedures, in violation of the Fourteenth Amendment. He asserts claims against Snyder, Smeltz, and Long in both their individual and official capacities, as well as claims against the County. The court will address these claims in turn. 1. Official Capacity Claims Against Snyder, Smeltz, Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 4 of 12 Page 5 of 12 Duran v. Cnty. of Clinton and Long Defendants properly seek dismissal of Duran's Section 1983 official capacity claims against Snyder, Smeltz, [*13] and Long on the basis that they are "merely duplicative of the claims against the County." (Doc. 6 at 21). 4 A suit against a government official in his or her official capacity is synonymous with a claim against the government entity itself. See Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)) (stating that suits against officers in their official capacity "generally represent only another way of pleading an action against an entity of which an officer is an agent"); Hill v. Borough of Kutztown, 455 F.3d 225, 233 n.9 (3d Cir. 2006) (recognizing that official-capacity claims "are, effectively, identical to" claims against a local governmental entity); Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988) (same). If a plaintiff asserts claims against both a government entity and the entity's agents in their official capacity, the court should dismiss the official-capacity suits. See Lopez v. Maczko, No. 07- 1382, 2007 U.S. Dist. LEXIS 63416, 2007 WL 2461709, at *7 (E.D. Pa. Aug. 16, 2007) (granting motion to dismiss official capacity suits as duplicative); Johnston v. Dauphin Borough, No. 1:05-CV-1518, 2006 U.S. Dist. LEXIS 32028, 2006 WL 1410766, at *4 (M.D. Pa. May 22, 2006) (Conner, J.) (granting motion to dismiss official-capacity claims because plaintiff asserted identical claims against municipality); Abdullah v. Fetrow, No. 1:05-CV-1135, 2006 U.S. Dist. LEXIS 27448, 2006 WL 1274994, at *4 (M.D. Pa. May 8, 2006) (Conner, J.) (same). Therefore, Duran's Section 1983 claims against the individual defendants Snyder, Smeltz, and Long in their official capacities duplicate his claims against the County and will be dismissed. [*14] 5 4 In his complaint, Duran states generally that each of the individual defendants Snyder, Smeltz, and Long "is being sued in both his official and individual capacities." (Doc. 1 ¶¶ 9, 11, 13). Contrary to this general averment, Duran's tortious interference claim may only proceed against the defendants in their individual capacities. (See infra Part III.C). The court also notes that Duran expressly references the individual defendants in both their "official and individual capacities" only within his Section 1983 claims. (See Doc. 1 ¶¶ 71, 88). Accordingly, the court construes Duran's complaint to assert official-capacity claims only with respect to his Section 1983 claims. 5 Duran offers no response to defendants' argument for dismissal of his claims against the individual defendants in Leave to amend will be denied as futile. See Grayson, 293 F.3d at 108. 2. Procedural Due Process Claims Against Clinton County Defendants contend that Duran's Section 1983 claims against the County should be dismissed because he "does not identify any municipal policy or custom that resulted in his alleged injury." (Doc. 6 at 12). Duran appears [*15] to reject the idea that he is burdened to identify any such policy. (See Doc. 7-1 at 18). The court agrees with the defendants on this issue. Municipalities and other local government entities may not be held liable under Section 1983 for conduct of their employees under a theory of respondeat superior or vicarious liability. Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997) (citing Monell v. Dep't of Socia l Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)); see also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991). However, municipalities may be held liable if the plaintiff can "identify a municipal 'policy' or 'custom' that caused the plaintiff's injury." Brown, 520 U.S. at 403; see also Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986); Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (stating that "[d]istrict courts must review claims of municipal liability independently of the section 1983 claims against" individual defendants) (internal quotation omitted). To establish liability under Monell, a plaintiff must identify the challenged policy or custom, attribute it to the municipality itself, and show a causal link between the execution of the policy or custom and the injury suffered. Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). A policy exists "when a 'decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting, in part, Pembaur, 475 U.S. at 481). A custom is formed when the "practices of state officials [are] so permanent and well settled as to virtually [*16] constitute law." Id. A plaintiff also may establish a custom by evidence of knowledge or acquiescence in a pattern of constitutional violations. Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d their official capacities. Hence, the court will also deem Duran's official-capacity claims to be abandoned. See supra note 3. Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 5 of 12 Page 6 of 12 Duran v. Cnty. of Clinton Cir. 1989). In his complaint, Duran alleges that Snyder, Smeltz, and Long had "final decision making authority regarding the termination of Plaintiff's employment, and the conduct by which he was deprived of his constitutional and civil rights." (Doc. 1 ¶ 62). Duran fails, however, to identify a municipal policy or custom and to allege a causal link between that policy and any injury he suffered. See Santiago v. Warminster Twp., 629 F.3d 121, 135 (3d Cir. 2010) (dismissing Monell claim when plaintiff failed to allege an official with policymaking authority who took action that "could fairly be said to be policy"); Briston v. Cty. of Allegheny, No. 2:08-CV-1380, 2011 U.S. Dist. LEXIS 13663, 2011 WL 635267, at *6 (W.D. Pa. Feb.11, 2011) (The "inability to advance facts sufficient to identify an existing policy . . . precludes the ability to establish Monell liability"). Duran therefore does not satisfactorily allege the elements of a Monell claim. Accordingly, the court will dismiss without prejudice Duran's Section 1983 claims against the County. 3. Procedural Due Process Claims Against Snyder, Smeltz, and Long The Due Process Clause of the Fourteenth Amendment prohibits states from depriving any person of "life, liberty, or property, without due process [*17] of law." U.S. CONST. amend. XIV, § 1. To prevail on a Section 1983 procedural due process claim, a plaintiff must demonstrate (1) that he or she was deprived of a protected liberty or property interest under the Fourteenth Amendment, and (2) that the procedures afforded him or her failed to comport with the requirements of due process. Hill, 455 F.3d at 233-34 (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). In the instant matter, Duran alleges both property and liberty deprivations, and defendants challenge the sufficiency of both claims. a. Property Interest Defendants argue that Duran does not satisfactorily allege a procedural due process claim because "he had no property interest in his job after November 5, 2012." (Doc. 6 at 14). In response, Duran states that he has pleaded "more than a unilateral expectation of continued employment sufficient to trigger" procedural due process protections. (Doc. 7-1 at 19). A property interest protected by the Fourteenth Amendment exists only if the plaintiff has "a legitimate claim of entitlement" to the interest. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Hill, 455 F.3d at 234; Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005). Legitimate entitlement to a job requires "more than a unilateral expectation of continued employment." Elmore, 399 F.3d at 282. Constitutionally protected property interests are created by other law, such as state law. Roth, 408 U.S. at 577 (holding that property interests derive from independent sources like [*18] state law); Hill, 455 F.3d at 234 (observing that the existence of a property interest is "a question answered by state law"). In the case at hand, Pennsylvania law governs whether Duran had a protected property interest in his employment. See Dee v. Borough of Dunmore, 549 F.3d 225, 229-30 (3d Cir. 2008); Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 316 n.9 (M.D. Pa. 2004) (Conner, J.). Under Pennsylvania law, protected property interests arise in three ways: First, through legislative action or authorization, see Aguilar v. Pa. Apple Mktg. Program, No. 1:05-CV-0804, 2006 U.S. Dist. LEXIS 96074, 2006 WL 167820, at *6 (M.D. Pa. Jan.19, 2006); Pivarnik v. Commonwealth, Dep't of Transp., 82 Pa. Commw. 42, 474 A.2d 732, 734 (Pa. Commw. Ct. 1984); Second, through a contract that grants the plaintiff protected status, such as employment tenure or welfare benefits, see Unger v. Nat'l Residents Matching Program, 928 F.2d 1392, 1399 (3d Cir. 1991) (stating that contracts granting protected status create property rights); Third, through an employment contract permitting dismissal only for cause, see Unger, 928 F.2d at 1399 (summarizing protection conferred on employment contracts terminable only for cause); see also Linan- Faye Constr. Co. v. Hous. Auth. of Camden, 49 F.3d 915, 932 (3d Cir. 1995) (extending procedural due process protection to employment contracts that require cause for termination); Aguilar, 2006 U.S. Dist. LEXIS 96074, 2006 WL 167820, at *6 (same). In the case sub judice, Duran bases his assertion of having more than a unilateral expectation of continued employment on his alleged status as a "contracted employee." (Doc. 1 ¶ 65). Yet, as explained more fully infra in the court's consideration of Duran's breach of contract claim, [*19] Duran's factual allegations do not raise the reasonable inference that he had a contractually-based expectation of continued employment after the expiration of his employment contract. 6 In the absence of a viable contract renewal 6 In short, Duran claims that his employment contract expired on November 4, 2012, and that it had renewed before the effective date of his [*20] termination on November 5, 2012. Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 6 of 12 Page 7 of 12 Duran v. Cnty. of Clinton argument or other theory, Duran's post-contract expiration status would have been at-will and therefore not protected by the Fourteenth Amendment. See Elmore, 399 F.3d at 282 ("The decisional law is clear that an at-will employee does not have a legitimate entitlement to continued employment."); Cooley v. Pa. Hous. Fin. Agency, 830 F.2d 469, 471 (3d Cir. 1987); Bell v. Lackawanna Cty., 892 F. Supp. 2d 647, 658 n.8 (M.D. Pa. 2012) (Conner, J.) ("[A]t-will employees . . . have no property interest in their positions and, thus, have no due process rights prior to termination."); Chinoy v. Pa. State Univ., No. 11-CV-1263, 2012 U.S. Dist. LEXIS 29398, 2012 WL 727965, at *4 (M.D. Pa. Mar. 6, 2012) (suggesting a presumption of at-will status when employment contract expires). Hence, before the court reaches the issue of what protections the employment contract afforded, Duran must allege facts supporting his conclusory assertion that he was a "contracted employee" even after his contract's expiration. The court therefore will dismiss without prejudice Duran's Section 1983 procedural due process claim alleging deprivation of property. b. Liberty Interest Defendants argue that Duran fails to state a claim for deprivation of a liberty interest because he "does not provide any allegations of false or misleading statements that were allegedly made about him in connection with his separation of employment." (Doc. 6 at 15). Duran maintains that he has sufficiently stated his claim because he avers that defendants "fabricated pre-textual reasons, explanations, and claims upon which to falsely premise" his employment termination. (Doc. 7-1 at 20). An individual may have a protected liberty interest in his or her reputation. See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971). However, "reputation alone is not an interest protected by the Due Process Clause." Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing Paul v. Davis, 424 U.S. 693, 711-12, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976)). To assert a due process claim for a liberty interest in reputation, a plaintiff must show "a stigma to his reputation plus deprivation of some additional right [*21] or interest." Hill, 455 F.3d at 236 (stating that, (Doc. 1 ¶¶ 44, 45). His apparent theory of implied renewal (as the employment contract contains no automatic renewal clause) is belied by defendants' opposition to his continued employment (Doc. 1 ¶¶ 42-43) and Duran's failure to allege that he continued his employment services after the contract's expiration. See infra Part III.E. in the public employment context, "the creation and dissemination of a false and defamatory impression is the 'stigma,' and the termination is the 'plus'"). To satisfy the "stigma" requirement, the stigmatizing statements must have been made publicly and must be false. Id.; see also Brown v. Montgomery Cty., 470 F. App'x 87, 91 (3d Cir. 2012) (non-precedential) (stating that, in order to establish the "stigma" prong, plaintiff must show "1) publication of 2) a substantially and materially false statement that 3) infringed upon [plaintiff's] 'reputation, honor, or integrity'" (citation omitted)). Duran fails to plead the "stigma" requirement of his "stigma-plus" claim. Duran avers in his complaint that defendants "have blackened Plaintiff's name and reputation," and that "the false and defamatory impressions and statements created and disseminated by the Defendants . . . were false, misleading, . . . and were made publicly and as part of the Plaintiff's permanent employment record." (Doc. 1 ¶¶ 88-89). Nevertheless, surviving a motion to dismiss requires factual allegations that "raise a right to relief above the speculative level and the complaining party must offer more than labels and conclusions or a formulaic [*22] recitation of elements of a cause of action." W. Run Student Hous. Assocs., LLC v. Huntington Nat'l Bank, 712 F.3d 165, 169 (3d Cir. 2013) (internal citations omitted). Duran attempts greater specificity in his opposition brief, (Doc. 7-1 at 20), but as noted by defendants, a complaint may not be amended through a brief opposing a dispositive motion. See Pennsylvania 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." (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984))). Duran must allege within his complaint those facts sufficient to meet his pleading burden. See Dunkel v. Mt. Carbon/N. Manheim Fire Co., 970 F. Supp. 2d 374, 383 (M.D. Pa. 2013) (plaintiff adequately pleaded stigma prong when he alleged specific statements made by defendants and also alleged that the statements were both false and public); Arneault v. O'Toole, 864 F. Supp. 2d 361, 396 (W.D. Pa. 2012) (same). 7 Accordingly, the court will 7 The closest that Duran comes to allegations of false statements is a footnote detailing an alleged assertion by Snyder connecting Duran's termination to missing prison equipment. (Doc. 1 ¶ 34 n.2). Duran does not link this alleged assertion, made one year after his termination, to the stigma- plus context or assert its defamatory nature. Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 7 of 12 Page 8 of 12 Duran v. Cnty. of Clinton dismiss without prejudice Duran's Section 1983 procedural due process claim alleging deprivation of a liberty interest. C. State Law Claim for Tortious Interference with Contract Defendants [*23] contend that Duran's tortious interference with contract claim against Snyder, Smeltz, and Long must be dismissed because they "are not a third party with regard to Duran's employment agreement." (Doc. 6 at 20). Duran responds that because he brings suit against Snyder, Smeltz, and Long in their individual capacities, he has alleged interference by third parties. (See Doc. 7-1 at 22). Accordingly, the court must determine whether the County commissioners, when sued in their individual capacities, constitute third parties with respect to a contract between the County and Duran. Pennsylvania has adopted the standard of the Restatement (Second) of Torts § 766 to determine the elements of a tortious interference claim. See Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175, 1183 (Pa. 1978); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 470- 71 (Pa. 1979). See also U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 925 (3d Cir. 1990). In order to state a prima facie claim of tortious interference, the complaint must allege "(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a [*24] result of the defendant's conduct." CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375, 384 (3d Cir. 2004); see also Crivelli v. Gen. Motors Corp., 215 F.3d 386, 394 (3d Cir. 2000); Pawlowski v. Smorto, 403 Pa. Super. 71, 588 A.2d 36, 39-40 (Pa. Super. Ct. 1991). The requirement that the contract at issue be between the complainant and a third party means that a plaintiff cannot assert a tortious interference claim against a party to the contract. See Kelly v. Bloom, No. 3:11-CV- 928, 2012 U.S. Dist. LEXIS 16376, 2012 WL 425257, at *6 (M.D. Pa. Feb. 9, 2012) ("Simply stated, a party cannot interfere with its own contract."); Mele v. TSE Systems, No. 09-174, 2010 U.S. Dist. LEXIS 79096, 2010 WL 3075741, at *4 (E.D. Pa. Aug. 5, 2010) ("A claim for intentional interference with contractual relations must involve three parties: the plaintiff, the alleged tortfeasor, and a third party."); Nix v. Temple Univ., 408 Pa. Super. 369, 596 A.2d 1132, 1137 (Pa. Super. Ct. 1991) ("Essential to the right of recovery on this theory is the existence of a contractual relationship between the plaintiff and a party other than the defendant."). In general, the employees of a corporate entity cannot be third party tortfeasors in relation to the plaintiff and the corporate contracting party. See Daniel Adams Assocs., Inc. v. Rimbach Pub., Inc., 360 Pa. Super. 72, 519 A.2d 997, 1000 (Pa. Super. Ct. 1987) ("A corporation is a creature of legal fiction which can 'act' only through its officers, directors and other agents. . . . Where a party contracts with a corporation through a corporate agent who acts within the scope of his authority and reveals his principal, the corporate principal alone is liable for breach of the contract."); Killian v. McCulloch, 850 F. Supp. 1239, 1251-52 (E.D. Pa. 1994) (stating that corporate officers and agents cannot [*25] be third parties when acting in their official capacities). This corporate agency principle has been recognized in broader contexts, including that of a municipality and its agents. See Whaumbush v. City of Phila., 747 F. Supp. 2d 505, 513 (E.D. Pa. 2010) (involving city of Philadelphia as a party to a contract); see also Kelly, 2012 U.S. Dist. LEXIS 16376, 2012 WL 425257, at *6 ("These corporate agency principals [sic] are equally applicable within a school district context."). An employee satisfies the requirement of third party status only when he or she acts outside the scope of employment. See Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 173 (3d Cir. 2001); Am. Trade Partners, L.P. v. A-1 Int'l Importing Enters, Ltd., 757 F. Supp. 545, 555 (E.D. Pa. 1991). A number of district court cases interpreting Pennsylvania law have suggested that an agent acts outside the scope of employment when the "sole motive in causing the corporation to breach the contract is actual malice toward the plaintiff, or if the officer's conduct is against the corporation's interest." Wagner v. Tuscarora Sch. Dist., No. 1:04-CV-1133, 2006 U.S. Dist. LEXIS 97582, 2006 WL 167731, at *12 (M.D. Pa. Jan. 20, 2006) (citing Killian, 850 F. Supp. at 1252); see also Kelly v. Bloom, 2012 U.S. Dist. LEXIS 16376, 2012 WL 425257 at *6; Corrections USA v. McNany, 892 F. Supp. 2d 626, 637 (M.D. Pa. 2012); Ruder v. Pequea Valley Sch. Dist., 790 F. Supp. 2d 377, 395 (E.D. Pa. 2011); Avins v. Moll, 610 Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 8 of 12 Page 9 of 12 Duran v. Cnty. of Clinton F. Supp. 308, 318 (E.D. Pa. 1984). 8 Such improper motive is not, however, regarded as dispositive. See Wagner, 2006 U.S. Dist. LEXIS 97582, 2006 WL 167731 at *12 ("[T]he mere fact that an employer was acting with allegedly improper motive does not remove their actions from the scope of their employment."). Duran alleges sufficient facts in support of his tortious interference claim to survive defendants' motion to dismiss. He avers that Snyder, Smeltz, and Long "acted with malicious and/or reckless disregard," "conspired and acted with the intention of causing the Plaintiff to be falsely and wrongfully terminated from his employment," and "had no purpose other than the wrongful interference in and termination of Plaintiff's contractual relationship with the County." (Doc. 1 ¶¶ 94, 96-97). Accepting these allegations as true, the court finds that Duran has raised a reasonable inference that defendants acted outside the scope of their employment. See Hall v. Easton Area Sch. Dist., No.10- 7603, 2012 U.S. Dist. LEXIS 20695, 2012 WL 526287, at *8 (E.D. Pa. Feb. 17, 2012) (finding allegations of personal, intentional, and retaliatory action [*27] sufficient in motion to dismiss context); Whaumbush, 747 F. Supp. 2d at 513 (finding allegations of intentional and malicious conduct sufficient at motion to dismiss stage); Rocking Horse Child Care Ctrs. of Am., Inc. v. Carneal, No. 94-7606, 1995 U.S. Dist. LEXIS 4744, 1995 WL 216947, at *5 (E.D. Pa. Apr. 11, 1995) (same). Accordingly, the court will deny defendants' motion to dismiss Duran's tortious interference claim. D. State Law Claim for Wrongful Termination 9 8 Defendants cite Kernaghan v. BCI Commc'ns, Inc., 802 F.Supp. 2d 590, 596 (E.D. Pa. 2011), to support their argument that Snyder, Smeltz, and Long cannot constitute third parties to the contractual [*26] relationship between Duran and the County because they had "control over" the relationship. (Doc. 8 at 13). This argument depends on application of the so-called "stranger rule," which, notably, Pennsylvania has not adopted and which the Kernaghan court explicitly declined to apply. (See Kernaghan, 802 F.Supp. 2d at 596-97) (stating that "the Court will not expand the [Pennsylvania test] to include language that a defendant be a 'stranger' to the agreement"). Defendants' cited case is therefore inapposite. 9 The court assumes that Duran pleads in the alternative with regard to his wrongful termination and breach of contract claims, because "[i]t is well-settled that the tort of wrongful discharge is available only where there is an employment-at- will relationship." H&R Block E. Tax Servs., Inc. v. Zarilla, Defendants assert that Duran's wrongful discharge claim should be dismissed because he "does not allege any facts to support a recognized public policy exception" to Pennsylvania's at-will employment doctrine. (Doc. 6 at 16). In response, Duran points to his allegation that his termination violated his "constitutionally protected rights and the laws and public policies of the Commonwealth of Pennsylvania." [*28] (Doc. 7-1 at 21). Duran claims that Pennsylvania public policies include his FMLA-based rights. (Id. at 21). Under Pennsylvania's employment at-will doctrine, employers may terminate employees "for any or no reason" unless a written contract exists between the parties. Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231, 1233 (Pa. 1998) (quoting Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174, 176 (Pa. 1974)); see also Hershberger v. Jersey Shore Steel Co., 394 Pa. Super. 363, 575 A.2d 944, 946 (Pa. Super. Ct. 1990) ("[A]n at- will employment environment is the norm . . . thus, an employee can be terminated for good reason, bad reason, or no reason at all.") (citing Henry v. Pittsburgh & Lake Erie R.R. Co., 139 Pa. 289, 21 A. 157, 27 Week. Notes Cas. 322, 48 Legal Int. 166, 38 Pitts. Leg. J. 287 (Pa.1891)). There is no common law cause of action for wrongful discharge of an at-will employee. Shick, 716 A.2d at 1233; see also Bell, 892 F. Supp. 2d at 690. However, the Pennsylvania Supreme Court has carved out a narrow exception to the employment at-will doctrine: an employee may bring a common law wrongful discharge action for termination of at-will employment if he or she can demonstrate that the discharge violates "clearly mandated public policy." Bell, 892 F. Supp. 2d at 690 (quoting Clay v. Advanced Comput. Applications, Inc., 522 Pa. 86, 559 A.2d 917, 918-19 (Pa. 1989)). The public policy exception to the employment at-will doctrine is applied to "significant and recognized public policies." Yetter v. Ward Trucking Corp., 401 Pa. Super. 467, 585 A.2d 1022, 1026 (Pa. Super Ct. 1991). "The right of a court to declare what is or is not in accord with public policy exists 'only when a given policy is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in [*29] regard to it.'" Weaver v. 2013 PA Super 80, 69 A.3d 246, 252 (Pa. Super. Ct. 2013) (citing Weaver v. Harpster, 601 Pa. 488, 975 A.2d 555, 557 n.3 (Pa. 2009); see also Gorwara v. AEL Indus., Inc., No. 89- 6401, 1990 U.S. Dist. LEXIS 4311, 1990 WL 44702, at *6 (E.D. Pa. Apr. 12, 1990) ("Pennsylvania law only recognizes a cause of action for wrongful discharge when the employment is at-will, the rationale being that employees who are not at-will can pursue their cases under breach of contract theories."). Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 9 of 12 Page 10 of 12 Duran v. Cnty. of Clinton Harpster, 601 Pa. 488, 975 A.2d 555, 563 (Pa. 2009). Public policy is determined by examining the Pennsylvania Constitution, Pennsylvania statutes, and Pennsylvania court decisions. Id. The focus is thus on Pennsylvania law, not federal constitutional or statutory law. See Frederick v. Barbush, No. 1:13-CV-661, 2014 U.S. Dist. LEXIS 27229, 2014 WL 840390, at *12 (M.D. Pa. Mar. 4, 2014) (Conner, C.J.) ("[B]oth federal and state courts in Pennsylvania are disinclined to apply the public policy exception broadly to find a cause of action based solely upon constitutional protections.") (citing Bell, 892 F. Supp. 2d at 691); see also Dewees v. Haste, 620 F. Supp. 2d 625, 639-40 (M.D. Pa. 2009); McLaughlin v. Gastrointestinal Specialists, Inc., 561 Pa. 307, 750 A.2d 283, 289 (Pa. 2000) (holding that a plaintiff must "do more than show a possible violation of a federal statute that implicates her own personal interest" by alleging that "some public policy of this Commonwealth is implicated"). The narrow exceptions to the employment at-will doctrine include: (1) termination for filing a workers' compensation claim, see Shick, 552 Pa. 590, 716 A.2d 1231, 1238; (2) termination for filing an unemployment compensation claim, see Highhouse v. Avery Transp., 443 Pa. Super. 120, 660 A.2d 1374, 1378 (Pa. Super. Ct. 1995); and (3) termination for refusal to submit to a polygraph test, see Kroen v. Bedway Sec. Agency, 430 Pa. Super. 83, 633 A.2d 628, 633 (Pa. Super. Ct. 1993). Duran's complaint fails to state a claim for wrongful discharge. First, his allegations lack the requisite specificity because he does not identify a public policy of Pennsylvania violated by the defendants. See McLaughlin, 750 A.2d at 288 (affirming dismissal [*30] when plaintiff failed to show "how her discharge undermines any particular public interest of this Commonwealth"). Duran's vague reference to "constitutionally protected rights" does not suffice. See Twombly, 550 U.S. at 555 ("While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."). His reliance on federal statutory law also cannot sustain a claim for wrongful termination. See McLaughlin, 750 A.2d at 290 (pronouncing that "a bald reference to a violation of a federal regulation, without any more articulation of how the public policy of the Commonwealth is implicated, is insufficient to overcome the strong presumption in favor of the at-will employment relation"). Second, the existence of statutory remedies counsels against a public policy exception. See Bruffett v. Warner Commc'ns Inc., 692 F.2d 910, 919 (3d Cir. 1982) (stating that "the only Pennsylvania cases applying the public policy exception have done so where no statutory remedies were available"); Frederick, 2014 U.S. Dist. LEXIS 27229, 2014 WL 840390 at *13 (finding no viable public policy exception where plaintiffs "already availed themselves of recognized causes [*31] of action under 42 U.S.C. § 1983 for the purported violation of their due process and equal protection rights"). Duran's public policy argument is premised primarily on defendants' alleged violation of the FMLA. (Doc. 7-1 at 21). Courts interpreting Pennsylvania law have consistently rejected a separate cause of action for wrongful discharge when a claim under the FMLA is asserted for the same conduct. See Atchinson v. Sears, No. 08-3257, 2009 U.S. Dist. LEXIS 72153, 2009 WL 2518440, at *4 (E.D. Pa. Aug. 17, 2009) (disallowing separate cause of action based upon "the theory that [plaintiff's] termination violates the policy set forth by the FMLA"); McKiernan v. Smith-Edwards-Dunlap Co., No. 95-1175, 1995 U.S. Dist. LEXIS 6822, 1995 WL 311393, at *5 (E.D. Pa. May 17, 1995) (stating that the FMLA itself, rather than a state common law cause of action for wrongful discharge, is "the proper remedy for any" FMLA violation); Blake v. UPMC Passavant Hosp., No. 06-193, 2008 U.S. Dist. LEXIS 27708, 2008 WL 936917, at *11 (W.D. Pa. Apr. 4, 2008) (holding that when remedies under the FMLA were available to plaintiff to redress his injury, a claim for wrongful discharge would not lie). The above discussion suggests the difficulty Duran would face in amending his complaint to state a viable claim for wrongful discharge. As difficulty is not equivalent to futility, the court will dismiss Duran's wrongful discharge claim without prejudice. E. State Law Claim for Breach of Contract Defendants argue that Duran cannot maintain his breach of contract claim because [*32] his employment contract did not automatically renew, and thus Duran's termination date coincided with his contract's expiration date on November 5, 2012. (See Doc. 6 at 18). In reply, Duran defends his calculation of his contract expiration date of November 4, 2012 and asserts a theory of implied contract renewal. (See Doc. 7-1 at 23-24). Under Pennsylvania law, to establish a claim for breach of contract, a complaining party must prove (1) the existence of a contract, including its essential terms; (2) Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 10 of 12 Page 11 of 12 Duran v. Cnty. of Clinton a breach of a duty imposed by that contract; and (3) resulting damages. Reed v. Chambersburg Area Sch. Dist., 951 F. Supp. 2d 706, 726 (M.D. Pa. 2013). A contract's existence may be shown on a theory of renewal presumption when the parties to an expired contract continue to act as they did pre-expiration of the contract. See Burge v. W. Pa. Higher Educ. Counsel, Inc., 570 A.2d 536, 538, 391 Pa. Super. 108 (Pa. Super. Ct. 1990) (citing Smith v. Shallcross, 165 Pa. Super. 472, 69 A.2d 156, 158-59 (Pa. Super. Ct. 1949); WILLISTON, CONTRACTS § 90; 35 AM.JUR., Master and Servant §§ 15, 19; 56 C.J.S. Master and Servant §§ 8- 10; 30 C.J.S. Employer-Employee § 29 (2002). Parties continue to act as they did pre-expiration when one party continues to provide services and the other party does not object. See Smith, 69 A.2d at 158; Janis v. Amp, 2004 PA Super 301, 856 A.2d 140, 147-48 (Pa. Super. Ct. 2004) (finding proper jury instruction that recognized renewal presumption if employee continued same services post-contract expiration and employer did not object). To the [*33] extent Duran suggests that the precise date of his employment contract's expiration is "a factual dispute" best resolved at a later stage, he is correct. (Doc. 7-1 at 24); see Breon v. Waypoint Ins. Grp., Inc., No.1:06-CV-2204, 2007 U.S. Dist. LEXIS 39661, 2007 WL 1575225, at *3 (M.D. Pa. May 31, 2007) (Conner, J.) (finding "fact-sensitive inquir[ies] more appropriately reserved for summary judgment"). This point does not save his breach of contract claim, however, because Duran does not allege facts in support of his renewal presumption theory. Duran does not claim to have continued his employment services after his employment contract's expiration. And Duran's own account of his suspension and termination strongly suggests defendants' objection to his continued provision of services. (See Doc. 1 ¶¶ 42-43). His case is therefore easily distinguishable from those in which a court has found the contract renewal presumption applicable. See, e.g., Kapustik v. Sch. Dist. of City of Arnold, 177 Pa. Super. 268, 111 A.2d 169, 172 (Pa. Super. Ct. 1955) (finding implied contract renewal when the employee continued her employment services "for successive annual periods with the express consent and approval of" her employer). The court will thus dismiss Duran's breach of contract claim without prejudice and permit Duran to amend his complaint in accordance with the foregoing. IV. Conclusion [*34] For all of the foregoing reasons, defendants' motion (Doc. 5) to dismiss will be granted in part and denied in part. An appropriate order will issue. /s/ CHRISTOPHER C. CONNER Christopher C. Conner, Chief Judge United States District Court Middle District of Pennsylvania Dated: September 25, 2015 ORDER AND NOW, this 25th day of September, 2015, upon consideration of defendants' motion (Doc. 5) to dismiss, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that: 1. Defendants' motion (Doc. 5) to dismiss is GRANTED in part as follows: a. Plaintiff's procedural due process claims against defendants Snyder, Smeltz, and Long in their official capacities are DISMISSED with prejudice. b. Plaintiff's procedural due process claims against defendants County of Clinton and Snyder, Smeltz, and Long in their individual capacities are DISMISSED without prejudice. c. Plaintiff's wrongful termination claim is DISMISSED without prejudice. d. Plaintiff's breach of contract claim is DISMISSED without prejudice. 2. Defendants' motion (Doc. 5) is DENIED with respect to plaintiff's FMLA and tortious interference with contract claims. 3. Plaintiff is granted leave to amend his pleading within [*35] twenty (20) days of the date of this order, consistent with paragraph 1 above. In the absence of a timely filed amended complaint, the case will proceed only on the FMLA and tortious interference with contract claims. /s/ CHRISTOPHER C. CONNER Christopher C. Conner, Chief Judge United States District Court Middle District of Pennsylvania Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 11 of 12 Page 12 of 12 Duran v. Cnty. of Clinton End of Document Case 3:16-cv-01055-JMM Document 14-6 Filed 09/01/16 Page 12 of 12 Caution As of: September 1, 2016 11:38 AM EDT McDonald v. SEIU Healthcare United States District Court for the Middle District of Pennsylvania September 18, 2014, Decided; September 18, 2014, Filed CIVIL ACTION NO. 1:13-CV-2555 Reporter 2014 U.S. Dist. LEXIS 130670 DEBORAH MCDONALD, Plaintiff v. SEIU HEALTHCARE PENNSYLVANIA, NEAL BISNO, KIM PATTERSON, SHARMIKA FARGEN, and MICHELE ALI, Defendants Core Terms termination, hostile work environment claim, alleges, disability, motion to dismiss, individual defendant, medical leave, return to work, defendants', rights, days, retaliation claim, retaliation, adverse employment action, good cause, employees, time-barred, policies, hostile work environment, reasonable accommodation, harassment, summons, attend, limitations period, similarly situated, nonprecedential, prima facie case, district court, alleged facts, discrete act Case Summary Overview HOLDINGS: [1]-An employer did not deny a reasonable accommodation for an employee's psychological disabilities by denying an extension of medical leave, since the employee's request for an indefinite leave was not reasonable and the employee did not allege that the leave was designed to permit the employee to return to work; [2]-The employee's conclusory allegation of less favorable treatment than younger employees was insufficient to show age discrimination; [3]-The employee's allegations that the employer treated the employee's position negatively during the employee's medical leave and terminated the employee shortly after taking the medical leave were sufficient to allege unlawful retaliation against the employee for exercising medical leave rights. Outcome Motions to dismiss granted in part and denied in part. LexisNexis® Headnotes Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Motions to Dismiss Civil Procedure > ... > Pleadings > Service of Process > General Overview Civil Procedure > ... > Service of Process > Service of Summons > General Overview HN1 Fed. R. Civ. P. 4 prescribes the process for issuing and serving a summons and complaint. Fed. R. Civ. P. 4. A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(4) properly challenges only noncompliance with Rule 4(b) or other provisions pertaining to the content or issuance of the summons, while a Rule 12(b)(5) motion may be used to challenge the method of service or the lack of service. Fed. R. Civ. P. 12(b)(4), (5). A defendant may move to dismiss the complaint or quash service pursuant to Rule 12(b)(4) or Rule 12(b)(5) when a plaintiff fails to comply with the requirements of Rule 4.2. In a challenge to the sufficiency of service, the burden of proof lies on the party asserting the validity of service. However, the movant must state its objections with specificity and must identify the manner in which the plaintiff failed to satisfy the requirements of service. Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN2 Fed. R. Civ. P. 12(b)(6) provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 1 of 22 Page 2 of 22 McDonald v. SEIU Healthcare determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. In addition to reviewing the facts contained in the complaint, the court may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case. Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN3 Federal notice and pleading rules require the complaint to provide the defendant fair notice of what the claim is and the grounds upon which it rests. To test the sufficiency of the complaint, the court must conduct a three-step inquiry. In the first step, the court must take note of the elements a plaintiff must plead to state a claim. Next, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Once the court isolates the well-pleaded factual allegations, it must determine whether they are sufficient to show a plausible claim for relief. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Civil Procedure > ... > Pleadings > Amendment of Pleadings > Leave of Court HN4 When a complaint fails to present a prima facie case of liability, courts should generally grant leave to amend before dismissing a complaint. Civil Procedure > ... > Affirmative Defenses > Statute of Limitations > General Overview Civil Procedure > ... > Responses > Defenses, Demurrers & Objections > Motions to Dismiss HN5 Fed. R. Civ. P. 8(c) deems a statute of limitations bar to be an affirmative defense that must be pleaded in an answer to the complaint. Fed. R. Civ. P. 8(c). Nevertheless, the court may dismiss a complaint as time-barred if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations. Civil Procedure > ... > Pleadings > Service of Process > General Overview Civil Procedure > ... > Service of Process > Time Limitations > Extension of Time HN6 When a plaintiff fails to serve process as set forth in Fed. R. Civ. P. 4, a court possesses discretion either to dismiss the complaint or to quash service and grant plaintiff additional time to serve the summons and complaint. When there remains a reasonable prospect that service may be obtained, however, dismissal of a complaint is inappropriate. Under that circumstance, the district court should, at most, quash service, leaving the plaintiff free to effect proper service. Civil Procedure > ... > Service of Process > Time Limitations > Untimely Service HN7 See Fed. R. Civ. P. 4(m). Civil Procedure > ... > Service of Process > Time Limitations > Extension of Time HN8 If a plaintiff demonstrates good cause for the failure to serve the defendant within 120 days, the court must extend the time for service for an appropriate period. Good cause within the meaning of Fed. R. Civ. P. 4(m) is tantamount to excusable neglect under Fed. R. Civ. P. 6(b)(1)(B), which requires a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules. Inadvertence by counsel and lack of diligent efforts at service are insufficient to establish good cause. When determining good cause, courts consider such factors as: (1) reasonableness of plaintiff's efforts to serve; (2) prejudice to the defendant by lack of timely service; and (3) whether plaintiff moved for an enlargement of time to serve. The primary focus of the good cause inquiry is on the plaintiff's reasons for not complying with the time limit in the first place. Civil Procedure > ... > Service of Process > Methods of Service > Service on Agents HN9 Fed. R. Civ. P. 4(e) governs the procedures for serving an individual within the United States. In part, the rule provides that an individual may be served by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e)(2)(C). Agency by appointment generally requires an actual appointment for the specific purpose of receiving process. Service on receptionists or secretaries at defendants' places of business generally is insufficient under Rule 4(e) unless the defendants expressly appointed those employees to receive process. A good faith reliance on the apparent authority of an individual to receive service may satisfy the requirements of Rule 4(e)(2)(C) under certain circumstances. However, any Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 2 of 22 Page 3 of 22 McDonald v. SEIU Healthcare apparent authority must stem from the actions of the defendant rather than from the purported agent. A plaintiff bears the burden of establishing an agency relationship between the defendant and the purported agent. Business & Corporate Compliance > ... > Discrimination > Disability Discrimination > ADA Enforcement Labor & Employment Law > ... > Disability Discrimination > Scope & Definitions > General Overview HN10 To establish a prima facie case of discrimination under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. § 12101 et seq., a plaintiff must demonstrate that: (1) she is a disabled person within the meaning of the ADA; (2) she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) she has suffered an otherwise adverse employment decision as a result of discrimination. Labor & Employment Law > ... > Disability Discrimination > Scope & Definitions > Qualified Individuals With Disabilities HN11 The Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. § 12101 et seq., defines a qualified individual as an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C.S. § 12111(8). Courts apply a two-part test to determine whether a plaintiff is a qualified individual under the ADA. First, the court must analyze whether the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc. Next, the court must assess whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation. A plaintiff bears the burden of identifying the existence of a reasonable accommodation. Labor & Employment Law > ... > Disability Discrimination > Reasonable Accommodations > General Overview HN12 A medical leave of absence may constitute a reasonable accommodation under the Americans with Disabilities Act of 1990, 42 U.S.C.S. § 12101 et seq. 29 C.F.R. § 1630 app. A plaintiff that seeks a reasonable medical leave is not necessarily required to be able to perform the essential functions of her position until the completion of her leave. Labor & Employment Law > ... > Disability Discrimination > Reasonable Accommodations > General Overview HN13 An open-ended or indefinite leave of absence is not a reasonable accommodation for a disability. Labor & Employment Law > ... > Age Discrimination > Scope & Definitions > General Overview Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview HN14 The Age Discrimination in Employment Act of 1967, 29 U.S.C.S. § 621 et seq., makes it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age. 29 U.S.C.S. § 623(a). To establish a prima facie case of age discrimination a plaintiff must demonstrate that: (1) she is forty years of age or older; (2) the defendant took an adverse employment action against her; (3) she was qualified for the position in question; and (4) she was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. The prima facie case is flexible and should not be rigidly applied. A plaintiff may satisfy the fourth prong of the prima facie case by establishing that she was treated less favorably than similarly situated younger employees, or by alleging facts sufficient to give rise to an inference of unlawful age discrimination. Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview HN15 A plaintiff who brings a disparate treatment claim under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.S. § 621 et seq., must prove that age was the "but-for" cause of the adverse employment action. However, a plaintiff need not establish that age discrimination is the sole cause for an adverse employment action to state a claim under the ADEA. The plaintiff must demonstrate that her age was a determinative factor in the adverse employment action. Labor & Employment Law > ... > Civil Actions > Exhaustion of Remedies > Filing of Charges Labor & Employment Law > ... > Civil Actions > Time Limitations > General Overview Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 3 of 22 Page 4 of 22 McDonald v. SEIU Healthcare HN16 A plaintiff must file a charge of discrimination no later than 300 days after the alleged unlawful employment practice occurred when she concurrently files the charge with the Equal Employment Opportunity Commission and a state agency. 42 U.S.C.S. § 2000e- 5(e)(1). Labor & Employment Law > ... > Civil Actions > Time Limitations > Continuing Violations Labor & Employment Law > ... > Civil Actions > Exhaustion of Remedies > Filing of Charges Labor & Employment Law > Discrimination > Actionable Discrimination HN17 Under the continuing violations doctrine, discriminatory practices that are not individually actionable may be aggregated to form a single hostile work environment claim. To the extent that a plaintiff can show that the acts underlying the hostile work environment claim are part of the same unlawful employment practice and at least one such act falls within the statutory period, her hostile work environment claim will not be time-barred. The U.S. Supreme Court draws a clear distinction between discrete acts, which are individually actionable, and acts that are not themselves actionable but may comprise a hostile work environment claim in the aggregate. Hostile work environment claims are different in kind from discrete acts because their very nature involves repeated conduct. Discrete acts must be raised within the statutory period or else lost, while other acts may occur outside the limitations period so long as they are linked in a pattern of actions which continues into the applicable limitations period. Discrete acts include termination, a failure to promote, a denial of transfer, and a refusal to hire. Labor & Employment Law > Leaves of Absence > Family & Medical Leaves > General Overview HN18 A plaintiff must generally commence a cause of action under the Family and Medical Leave Act of 1993, 29 U.S.C.S. § 2601 et seq., within two years after the date of the last event constituting the alleged violation for which the action is brought. 29 U.S.C.S. § 2617(c)(1). The only statutory exception to this rule is when the alleged violation was willful. 29 U.S.C.S. § 2617(c)(2). In a willful violation case, the plaintiff must commence an action within three years of the violation. Labor & Employment Law > ... > Family & Medical Leaves > Scope & Definitions > General Overview HN19 The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.S. § 2601 et seq., was designed in part to balance the demands of the workplace with the needs of families. 29 U.S.C.S. § 2601(b)(1). The FMLA contains both prescriptive and proscriptive rights. Prescriptive rights create substantive rights for employees, such as the ability to take up to twelve weeks of unpaid leave, and prohibit interference with those rights. Proscriptive rights, by contrast, make unlawful discrimination or retaliation against an employee for exercising the FMLA's prescriptive rights. Although retaliation claims alleging that an employee was unlawfully terminated for taking FMLA leave do not fall within the literal scope of 29 U.S.C.S. § 2615(a)(2), such claims are nevertheless cognizable under 29 C.F.R. § 825.220(c). The relevant regulation provides that the FMLA prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. § 825.220(c). Labor & Employment Law > Leaves of Absence > Family & Medical Leaves > Burdens of Proof Labor & Employment Law > ... > Family & Medical Leaves > Scope & Definitions > General Overview HN20 To state a retaliation claim, a plaintiff must demonstrate that: (1) she invoked her right to qualifying leave under the Family and Medical Leave Act of 1993, 29 U.S.C.S. § 2601 et seq.;(2) she suffered an adverse employment decision; and (3) the adverse action was causally related to her invocation of rights. Labor & Employment Law > ... > Family & Medical Leaves > Scope & Definitions > General Overview HN21 Interference claims concern an employee's prescriptive rights under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.S. § 2601 et seq., and an employee may not be able to state an interference claim when she is no longer entitled to FMLA benefits. Retaliation claims, on the other hand, concern an employer's reasons for terminating an employee and are not conditioned upon the existence of remaining FMLA entitlements. Business & Corporate Compliance > ... > Family & Medical Leaves > Scope & Definitions > Restoration of Benefits & Positions Labor & Employment Law > ... > Family & Medical Leaves > Scope & Definitions > General Overview HN22 A plaintiff may establish a causal link between her Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 4 of 22 Page 5 of 22 McDonald v. SEIU Healthcare leave under the Family and Medical Leave Act of 1993, 29 U.S.C.S. § 2601 et seq., and an adverse employment action by showing: (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action; or (2) a pattern of antagonism coupled with timing to establish a causal link. When the temporal proximity is not unusually suggestive, a plaintiff may still establish causation if the proffered evidence, looked at as a whole, may suffice to raise the inference. Business & Corporate Compliance > ... > Family & Medical Leaves > Scope & Definitions > Covered Employers Labor & Employment Law > ... > Family & Medical Leaves > Scope & Definitions > General Overview HN23 An individual may be held liable under the Family and Medical Leave Act of 1993, 29 U.S.C.S. § 2601 et seq., when he or she exercises supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation while acting in the employer's interest. Factors that determine the existence of supervisory authority over an employee include whether the individual had the power to hire or terminate the employee and whether the individual controlled the employee's work schedules or conditions of employment. Civil Rights Law > Regulators > Civil Rights Commissions > Complaints Labor & Employment Law > Discrimination > Actionable Discrimination HN24 The Pennsylvania Human Relations Act (PHRA), 43 Pa. Stat. Ann. § 951 et seq., makes it unlawful, inter alia, for employers to refuse to hire, terminate, or discriminate against employees on the basis of disability or age. 43 Pa. Cons. Stat. § 955(a). Disability or age discrimination claims under the PHRA are construed as coextensive with the respective scopes of the Americans with Disabilities Act of 1990, 42 U.S.C.S. § 12101 et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C.S. § 621 et seq. To bring a claim under the PHRA, a plaintiff must file a complaint with the Pennsylvania Human Relations Commission within 180 days of the allegedly discriminatory act. 43 Pa. Cons. Stat. § 959(h). Business & Corporate Compliance > ... > Breach > Breach of Contract Actions > Elements of Contract Claims HN25 To establish a claim for breach of contract under Pennsylvania law, a plaintiff must plead: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages. Labor & Employment Law > Employment Relationships > At Will Employment > Duration of Employment Labor & Employment Law > Employment Relationships > Employment Contracts > General Overview Labor & Employment Law > Wrongful Termination > Breach of Contract > Employer Handbooks HN26 There is a very strong presumption in Pennsylvania that employment relationships are at will. An employee manual or handbook does not create an enforceable contract between an employer and employee unless a reasonable person in the employee's position would interpret its provisions as illustrating the employer's intent to overcome the at-will rule and be legally bound by the representations contained in the book. Labor & Employment Law > Wrongful Termination > Breach of Contract > Employer Handbooks HN27 An employer's policy statement that it will comply with its legal obligations, without more, does not create a legally binding obligation. Labor & Employment Law > Employment Relationships > Employment Contracts > Breaches HN28 Under Pennsylvania law, an employee who is not a party to the company's employment contract cannot be liable for the company's breach of that contract unless the employee assumed a personal duty within that contract. Counsel: For Deborah McDonald, Plaintiff: Lisa Jo Fanelli-Greer [*1] , LEAD ATTORNEY, Grantham, PA. For SEIU Healthcare Pennsylvania, Neal Bisno, Individually, Kim Patterson, Individually, Sharmika Fargen, Individually, Michele Ali, Individually, Defendants: Linda M. Martin, Willig, Williams & Davidson, Philadelphia, PA. For Mediator, Mediator: Joseph Anthony Barrett, LEAD ATTORNEY, Office of Clerk of Court, Scranton, PA. Judges: Christopher C. Conner, Chief United States District Judge. Opinion by: Christopher C. Conner Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 5 of 22 Page 6 of 22 McDonald v. SEIU Healthcare Opinion MEMORANDUM Plaintiff Deborah McDonald filed the above-captioned action, alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 951 et seq., and breach of contract. McDonald seeks injunctive relief, compensatory and punitive damages, and costs and fees. Presently before the court is a motion (Doc. 20) to dismiss filed by defendants SEIU Healthcare Pennsylvania, Neal Bisno, Kim Patterson, Sharmika Fargen, and Michele Ali pursuant to Rules 12(b)(4), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the court will grant the [*2] motion in part and deny the motion in part, extend the time to effect service, and grant plaintiff leave to file an amended complaint. I. Factual Background and Procedural History 1 From 2004 to 2011, Deborah McDonald ("McDonald") was an employee of SEIU Healthcare Pennsylvania ("SEIU HCPA"). (Doc. 1 ¶ 29). SEIU HCPA is a local branch of the Service Employees International Union ("SEIU") and consists of more than 20,000 healthcare workers. (Id. ¶ 9). During the time period at issue, McDonald worked as a bookkeeper for SEIU HCPA and was a member of SEIU HCPA's office staff. (Id. ¶¶ 29, 141). McDonald's supervisors at SEIU HCPA included President Neal Bisno ("Bisno"), Secretary/Treasurer Kim Patterson ("Patterson"), Office Director Sharmika Fargen ("Fargen"), and Finance Director Michele Ali ("Ali") (collectively, the "individual defendants"). (Id. ¶¶ 14-17). In 2010, McDonald began to have panic attacks and experienced such an attack at a demonstration that she attended on behalf of the union. [*3] (Id. ¶¶ 39-40, 62- 63). After Patterson became the Secretary/Treasurer of SEIU HCPA, she informed the office staff, including 1 In accordance with the standard of review for a Rule 12(b)(6) motion to dismiss, the court will "accept all well-pleaded facts in the complaint as true, and view them in the light most favorable" to McDonald. Carino v. Stefan, 376 F.3d 156, 159 (3d Cir. 2004). McDonald, that attendance at union demonstrations and news conferences would be mandatory moving forward. (Id. ¶ 65). McDonald requested that Fargen excuse her from participating in additional demonstrations. (Id. ¶ 66). Fargen denied this request. (Id. ¶ 67). McDonald claims that she was forced to attend additional events and became physically ill while doing so. (Id. ¶¶ 68-69). McDonald began a medical leave of absence on February 9, 2011. (Id. ¶ 71). On March 10, 2011, Bisno approved McDonald's initial medical leave. (Id. ¶ 79). Shortly after her leave commenced, McDonald's personal items were purportedly placed in a cupboard in her office, her mailbox was removed, her voice mail message was replaced, and she no longer received union mail. (Id. ¶¶ 127-132). An unnamed individual also allegedly informed McDonald that ADP had been handling her accounting responsibilities as of June 30, 2011 and that Ali had indicated that McDonald would not be returning to SEIU HCPA after her leave. (Id. ¶¶ 133-135). McDonald requested and received extensions of her medical leave [*4] from April 8, 2011 to May 8, 2011, (id. ¶¶ 82-88); from May 9, 2011 to May 31, 2011, (id. ¶ 89); and from June 1, 2011 to August 31, 2011, (id. ¶¶ 91-94). In an email to Bisno on May 27, 2011, McDonald noted that her medical situation "has spiraled into more and is requiring a lot more than [she] was prepared for" and that she could not provide an end date for her leave. (Id. ¶ 92). On June 14, 2011, Bisno informed McDonald via letter that SEIU HCPA had designated McDonald's absence as an FMLA leave and that her FMLA leave "has been exhausted in accordance with applicable law." (Id. ¶¶ 93-94). On August 2, 2011, McDonald's psychiatrist submitted a disability claim to SEIU HCPA in which he certified that he first treated McDonald on April 21, 2011; diagnosed McDonald with major depression, panic disorder, persistent anxiety, interpersonal difficulties, and an inability to work effectively; and stated that he could not determine when McDonald would be able to return to work. (Id. ¶¶ 104-110). On August 11, 2011, McDonald requested that Bisno extend her medical leave beyond August 31, 2011. (Id. ¶ 112). Bisno denied this request. (Id. ¶¶ 113-116). After McDonald failed to return to work [*5] on September 1, 2011, SEIU HCPA terminated her employment on the grounds of abandonment. (Id. ¶ 117). McDonald's physician cleared her to return to work on October 31, 2011 on a parttime basis. (Id. ¶ 122). The union's policy on medical leaves of absence Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 6 of 22 Page 7 of 22 McDonald v. SEIU Healthcare provides that a union employee shall be entitled to a leave of absence for the lesser of "up to twelve (12) months or the length of employment." (Id. ¶ 142). SEIU HCPA also implemented anti-discrimination and anti- harassment policies. (Id. ¶ 147). These policies prohibit discrimination or harassment on the bases of "race, color, religion, creed, sex, age, national origin, sexual orientation, physical or mental disability, any other basis prohibited by law, or protected activity under the anti- discrimination statutes." (Id. ¶ 149). On June 27, 2012, McDonald dual-filed a charge of discrimination against SEIU HCPA and the individual defendants with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC") pursuant to 42 U.S.C. § 2000e-5(b) and (e). 2 (Doc. 1 ¶ 25). On July 10, 2013, the EEOC issued McDonald a Notice of Right To Sue, which she received on July 15, 2013. (Id. ¶ 27). On October 14, 2013, McDonald commenced [*6] the instant action by filing a complaint against SEIU, SEIU HCPA, Bisno, Patterson, Fargen, and Ali with the court. McDonald alleges that SEIU and SEIU HCPA discriminated against her on the basis of her disability in violation of the ADA, (id. ¶¶ 159-174), and on the basis of her age in violation of the ADEA, (id. ¶¶ 175-181); that SEIU and SEIU HCPA created a hostile work environment, (see id. ¶ 176); that all defendants retaliated against her for taking a medical leave in violation of the FMLA, (id. ¶¶ 182-184), and discriminated against her in violation of the PHRA, (id. ¶¶ 185-200); and that certain defendants breached SEIU and SEIU HCPA's policies pertaining to medical leave, anti-discrimination and antiharassment, and union membership, (id. ¶¶ 201-204). 3 On February 20, 2014, the court ordered McDonald to show cause why this case should not be dismissed for failure to serve the summons and complaint within 120 days after filing the complaint pursuant to Federal Rule of Civil Procedure 4(m). (Doc. 4). McDonald's counsel 2 42 U.S.C. § 2000e-5(e)(1) permits a plaintiff to file a timely charge of discrimination within 300 days of the alleged unlawful employment practice when she files her claim simultaneously with certain state or local agencies. 3 McDonald appears to bring a claim against all defendants for breach of the medical leave and anti-discrimination and anti- harassment policies, but against only Patterson for breach of the union membership policy. (Doc. 1 ¶¶ 201-204). [*7] The union membership policy provides that members of the office staff-including McDonald-were not required to belong to the union. (Id. ¶ 47). submitted a response to the show cause order in which counsel avers that due to a series of serious health issues throughout the 120-day period that required medical treatment, counsel was unable to effect timely service on the parties. (Doc. 5). Counsel further observes that she mailed waivers of service to all defendants on February 12, 2014-one day after the 120-day period for service expired-and that she notified the court of her health issues on February 14, 2014. (See id. ¶¶ 28-30). According to counsel, SEIU HCPA, Bisno, Patteron, Fargen, and Ali were each served at their place of business on February 25, 2014. (Id. ¶ 34). On March 18, 2014, defendants SEIU HCPA, Bisno, Patteron, Fargen, and Ali filed the instant motion to dismiss the complaint for insufficient process, insufficient service of process, and [*8] failure to state a claim upon which relief may be granted. (Doc. 20). 4 Defendants also contend that McDonald's hostile work environment, FMLA, and PHRA claims are time-barred. The motion has been fully briefed and is ripe for disposition. II. Legal Standard The court has jurisdiction over the instant matter because the complaint presents a question of federal law. See 28 U.S.C. § 1331. The court also exercises supplemental jurisdiction over the state law claims for violation of the PHRA and breach of contract because they are related to and share a common nucleus of operative facts with the federal law claims, thus forming part of the same case or controversy. See id. § 1367; Lyon v. Whisman, 45 F.3d 758, 759-60 (3d Cir. 1995) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966)). A. Rules 12(b)(4) and 12(b)(5): Insufficient Process and Service of Process HN1 Federal Rule of Civil Procedure 4 prescribes the process for issuing and serving a summons and complaint. Fed. R. Civ. P. 4; 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.33[1] (3d ed. 2014) [hereinafter MOORE'S FEDERAL PRACTICE [*9] ]. A motion to dismiss pursuant to Rule 12(b)(4) properly challenges 4 On May 12, 2014, former defendant SEIU also moved to dismiss the complaint. (Doc. 39). On July 22, 2014, SEIU filed a stipulation in which McDonald voluntarily dismissed with prejudice her claims against SEIU. (Doc. 50). The court therefore need not address SEIU's motion to dismiss. Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 7 of 22 Page 8 of 22 McDonald v. SEIU Healthcare only noncompliance with Rule 4(b) or other provisions pertaining to the content or issuance of the summons, while a Rule 12(b)(5) motion may be used to challenge the method of service or the lack of service. Fed. R. Civ. P. 12(b)(4), (b)(5); 5B CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 1353 (3d ed. 2014). A defendant may move to dismiss the complaint or quash service pursuant to Rule 12(b)(4) or Rule 12(b)(5) when a plaintiff fails to comply with the requirements of Rule 4. 2 Moore's Federal Practice § 12.33[1]. In a challenge to the sufficiency of service, the burden of proof lies on the party asserting the validity of service. Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993) (citing 4A WRIGHT & MILLER § 1083); Mitchell v. Theriault, 516 F. Supp. 2d 450, 452 (M.D. Pa. 2007). However, the movant must state its objections with specificity and must identify the manner in which the plaintiff failed to satisfy the requirements of service. 2 Moore's Federal Practice § 12.33[1]. B. Rule 12(b)(6): Failure to State a Claim HN2 Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); accord Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). In addition to reviewing the facts contained in the complaint, the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); accord Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). HN3 Federal notice and pleading rules require the complaint to provide "the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). To test the sufficiency of the complaint, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, "the court must 'tak[e] note of the elements [*10] a plaintiff must plead to state a claim.'" Id. (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). Next, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well- pleaded factual allegations, it must determine whether they are sufficient to show a "plausible claim for relief." Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); accord Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). A claim "has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. HN4 When the complaint fails to present a prima facie case of liability, courts should generally grant leave to amend before dismissing a complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). C. Statute of Limitations Defense HN5 Federal Rule of Civil Procedure 8(c) deems a statute of limitations bar to be an affirmative defense that must be pleaded in an answer to the complaint. See Fed. R. Civ. P. 8(c). Nevertheless, the court may dismiss a complaint as time-barred if "the time alleged in the statement of a claim shows that the cause of action has not [*11] been brought within the statute of limitations." Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)); see also Oshiver, 38 F.3d at 1384 n.1 ("While the language of Fed. R. Civ. P. 8(c) indicates that a statute of limitations defense cannot be used in the context of a Rule 12(b)(6) motion to dismiss, an exception is made where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading."). III. Discussion Defendants set forth six principal arguments in their motion to dismiss. First, defendants argue that McDonald's complaint should be dismissed for insufficient service. Second and third, respectively, Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 8 of 22 Page 9 of 22 McDonald v. SEIU Healthcare defendants contend that McDonald does not adequately plead claims under the ADA or ADEA. In connection with this argument, defendants maintain that McDonald's hostile work environment allegations are insufficient to state a claim and are time-barred in any event. Fourth, defendants assert that McDonald's claims under the FMLA are time-barred and that the complaint fails to state a claim for retaliation. Fifth, defendants contend that McDonald cannot obtain relief under the PHRA on the grounds that her claim is time-barred and that her allegations fail to state a claim. Finally, defendants argue [*12] that McDonald cannot maintain breach of contract claims because the complaint does not sufficiently allege the existence of any contracts or any harm to McDonald. The court addresses each of these issues seriatim. A. Sufficiency of Service Defendants assert that the complaint should be dismissed for insufficient process and insufficient service of process. (Doc. 21 at 7-10). As an initial matter, the court observes that defendants do not challenge the form of the summons or the process by which it was issued. In connection with their Rule 12(b)(4) argument, defendants challenge only McDonald's failure to serve the complaint within the period prescribed by Federal Rule of Civil Procedure 4. This challenge is properly made pursuant to Rule 12(b)(5), and the court will construe it under that provision. See White v. SKF Aerospace, Inc., 768 F. Supp. 498, 499 n.1 (E.D. Pa. 1991). HN6 When a plaintiff fails to serve process as set forth in Rule 4, a court possesses discretion either to dismiss the complaint or to quash service and grant plaintiff additional time to serve the summons and complaint. See Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992); see also Fed. R. Civ. P. 4(m). When there remains a reasonable prospect that service may be obtained, however, dismissal of a complaint is inappropriate. Umbenhauer, 969 F.2d at 30. Under that circumstance, "the district court should, at most, quash service, [*13] leaving the plaintiff[] free to effect proper service." Id. 1. Extension of Time for Good Cause McDonald does not dispute that she failed to serve the summons and complaint on the defendants by February 11, 2014, 120 days after she filed the complaint. See Fed. R. Civ. P. 4(m). Rather, she avers that she has demonstrated good cause to extend the time for service in light of her counsel's serious health issues, as well as the illnesses of counsel's assistants and inclement weather. (Doc. 30 at 7-8). Defendants note that McDonald's counsel filed at least two memoranda of law in other actions during the 120-day period for service in this case. (Doc. 41 at 3). 5 Federal Rule of Civil Procedure 4(m) provides that HN7 "[i]f a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that [*14] defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). HN8 If the plaintiff demonstrates "good cause" for the failure to serve the defendant within 120 days, however, "the court must extend the time for service for an appropriate period." Id. "Good cause" within the meaning of Rule 4(m) is tantamount to "excusable neglect" under Federal Rule of Civil Procedure 6(b)(1)(B), 6 which requires "a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules." MCI Telecomms. Corp., 71 F.3d at 1097 (quoting Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995) (Becker, J., concurring in part and dissenting in part)). Inadvertence by counsel and lack of diligent efforts at service are insufficient to establish good cause. Braxton v. United States, 817 F.2d 238, 241 (3d Cir. 1987). When determining good cause, courts have considered such factors as "(1) reasonableness of plaintiff's efforts to serve[,] (2) prejudice to the defendant by lack of timely service[,] and (3) whether plaintiff moved for an enlargement of time to serve." MCI Telecomms. Corp., 71 F.3d at 1097 (citation omitted). The "primary focus" of the good cause 5 The dockets associated with the two actions in which McDonald's counsel filed briefs in opposition to motions to dismiss are public records. The court takes judicial notice of these filings for the purposes of this memorandum. See Fed. R. Evid. 201(c); Cooper v. Pa. State Att'y Gen., No. 2:06CV1332, 2007 U.S. Dist. LEXIS 102495, 2007 WL 2492726, at *2 (W.D. Pa. Aug. 30, 2007) (reiterating that a federal court may take judicial notice of court records and dockets). 6 In MCI Telecommunications Corp. v. Teleconcepts, Inc, 71 F.3d 1086 (3d Cir. 1995), the rule is cited as FED. R. CIV. P. 6(b)(2). MCI Telecomms. Corp., 71 F.3d at 1097. The rule permitting a court to extend time for [*15] "excusable neglect" now appears under subsection (b)(1)(B). Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 9 of 22 Page 10 of 22 McDonald v. SEIU Healthcare inquiry "is on the plaintiff's reasons for not complying with the time limit in the first place." Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997) (quoting MCI Telecomms. Corp., 71 F.3d at 1097). The court finds good cause to excuse untimely service in the case sub judice. First, the efforts of McDonald's counsel to serve defendants were reasonable. Under certain circumstances, the illness of counsel may justify untimely service. See, e.g., Hollomon v. City of New York, No. 04-CV-2964 (NG)(JMA), 2006 U.S. Dist. LEXIS 52424, 2006 WL 2135800, at *3 (E.D.N.Y. July 31, 2006) (finding that counsel's mental illness constituted good cause to extend the time to serve); LeMaster v. City of Winnemucca, 113 F.R.D. 37, 37-39 (D. Nev. 1986) (finding good cause when counsel suffered from a "severe" illness beyond his control that required intermittent hospitalization). McDonald's counsel represents that her illnesses were sufficiently severe that they required occasional hospitalization and prevented her from working. (Doc. 30 at 7-9). The fact that counsel filed briefs in two other actions during the 120-day period for service does not take into account that counsel's availability to work on pending matters during this period was limited in light of her health issues. See LeMaster, 113 F.R.D. at 39. With respect to the other good cause factors, the court notes that defendants have not alleged prejudice as a result of untimely service. And while McDonald has not formally moved for an enlargement of the time to serve, she requested an extension of time in her response to [*16] the court's show cause order. (Doc. 5 ¶ 40). See also Metro. Life Ins. Co. v. Kalenvitch, No. 1:10-CV- 02108, 2011 U.S. Dist. LEXIS 78851, 2011 WL 2941297, at *2 (M.D. Pa. July 20, 2011) (finding good cause in light of plaintiff's reasonable efforts to serve defendant even though plaintiff did not move for an enlargement of time). Accordingly, the court deems timely McDonald's February 25, 2014 service upon SEIU HCPA and, for the reasons set forth infra, will grant McDonald an extension of thirty days in which to perfect service on the individual defendants. 7 7 Even if McDonald had not demonstrated good cause, the court would still grant her a discretionary extension of time to serve the complaint. Factors relevant to a discretionary extension include "actual notice of the legal action; prejudice to the defendant; the statute of limitations on the underlying causes of action; the conduct of the defendant; and whether the plaintiff is represented by counsel." Chiang v. U.S. Small Bus. Admin., 331 F. App'x 113, 116 (3d Cir. 2009) (nonprecedential). In the instant matter, statute of limitations 2. Service on the Individual Defendants Defendants also contend that, even if service were timely, McDonald failed to serve Bisno, Patterson, Fargen, and Ali in the manner prescribed by Federal Rule of Civil Procedure 4. (Doc. 21 at 9-10). 8 Specifically, defendants note that McDonald's process server gave copies of the summonses and complaints for the individual defendants to Yorel Singleton ("Singleton"), a receptionist at SEIU HCPA. (Id. at 10). According to the defendants, Singleton was not in fact authorized to receive service of process on behalf of the individual defendants. (Doc. 20 ¶ 11). McDonald submitted a declaration from her process server indicating that Singleton informed the process server that Fargen, her supervisor, was unavailable [*18] but that Singleton could take the complaints. (Doc. 31 ¶ 3). McDonald argues that Singleton gave the process server the impression that she was authorized to receive legal papers on behalf of the individual defendants. (Doc. 30 at 10). HN9 Federal Rule of Civil Procedure 4(e) governs the considerations counsel in favor of extending the time to serve. McDonald was required to bring suit on her ADA and ADEA claims within ninety days after notice from the EEOC of her right to sue. 42 U.S.C. § 2000e-5(f)(1). Were the court to dismiss this case and require McDonald to re-file her complaint, McDonald's ADA and [*17] ADEA claims would be time-barred. See Scally v. Daniluk, No. 96 Civ. 7548 (KMW), 1997 U.S. Dist. LEXIS 15983, 1997 WL 639036, at *3 (S.D.N.Y. Oct. 15, 1997). Moreover, McDonald mailed waivers of service to defendants on February 12, 2014, one day after the 120-day period ended, and attempted to serve defendants approximately two weeks after this period expired. (See Doc. 30 at 4). Cf. Witasick v. Estes, No. 11-3895-NLH, 2012 U.S. Dist. LEXIS 105806, 2012 WL 3075988, at *4-5 (D.N.J. July 30, 2012) (granting a discretionary extension of time when plaintiffs served defendants nineteen days after the 120-day deadline). Finally, as noted supra, defendants have not alleged prejudice from the untimely service. 8 Defendants' motion to dismiss contains a brief reference to insufficient service of process upon SEIU HCPA under Federal Rule of Civil Procedure 4(h) and related Pennsylvania Rules of Civil Procedure, which govern service on an association. (See Doc. 20 ¶ 15). Defendants failed to brief this issue in their memorandum of law in support of the motion. Accordingly, the court deems this argument waived. See DR Music, Inc. v. Aramini Strumenti Musicali S.R.L., No. 13-7028 FSH, 2014 U.S. Dist. LEXIS 15531, 2014 WL 523042, at *1 n.1 (D.N.J. Feb. 7, 2014) (citing Laborers' Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994)). Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 10 of 22 Page 11 of 22 McDonald v. SEIU Healthcare procedures for serving an individual within the United States. In relevant part, the Rule provides that an individual may be served by delivering a copy of the summons and complaint "to an agent authorized by appointment or by law to receive service of process." Fed. R. Civ. P. 4(e)(2)(C). Agency by appointment generally requires "an actual appointment for the specific purpose of receiving process." Farm Credit of Nw. Fla., ACA v. R & B Constr. of S. Ala., Inc., No. 08- 0439-WS-C, 2009 U.S. Dist. LEXIS 92839, 2009 WL 3245818, at *1 n.3 (S.D. Ala. Oct. 5, 2009) (quoting 4A WRIGHT & MILLER § 1097). Courts have held that service on receptionists or secretaries at defendants' places of business generally is insufficient under Rule 4(e) unless the defendants [*19] expressly appointed those employees to receive process. See id. (collecting cases). A good faith reliance on the apparent authority of an individual to receive service may satisfy the requirements of Rule 4(e)(2)(C) under certain circumstances. Laffey v. Plousis, No. 05-2796(JAG), 2008 U.S. Dist. LEXIS 7528, 2008 WL 305289, at *5 (D.N.J. Feb. 1, 2008), aff'd, 364 F. App'x 791 (3d Cir. 2010). However, any apparent authority must stem from the actions of the defendant rather than from the purported agent. Id.; Jumpp v. Jerkins, No. 08-6268 (RBK/KMW), 2010 U.S. Dist. LEXIS 17765, 2010 WL 715678, at *18 (D.N.J. Mar. 1, 2010). A plaintiff bears the burden of establishing an agency relationship between the defendant and the purported agent. Parikh v. Twp. of Edison, No. 08-3300(JAG), 2009 U.S. Dist. LEXIS 120817, 2009 WL 5206011, at *8 (D.N.J. Dec. 29, 2009). McDonald has not met her burden. She does not point to any representations by the individual defendants that would indicate the existence of an agency relationship between them and Singleton. Singleton's statement that she "could take the complaints" because Fargen was unavailable (Doc. 31 ¶ 3) is not sufficient to create apparent authority. See Laffey, 2008 U.S. Dist. LEXIS 7528, 2008 WL 305289, at *5. Moreover, McDonald's proofs of service for the individual defendants aver that Singleton is designated by law to accept service of process on behalf of SEIU HCPA (of which the individual defendants are officers), not on behalf of the individual defendants. (See Docs. 9-12). Cf. Gillen v. Kohn Law Firm S.C., No. 13-CV-373-WMC, 2013 U.S. Dist. LEXIS 176491, 2013 WL 6629034, at *1 (W.D. Wis. Dec. 17, 2013) (observing that proofs of service stated only that a receptionist was authorized to accept service [*20] on behalf of a defendant law firm, not on behalf of individual defendants who worked at that firm, and concluding that the fact that the individual defendants worked at the firm did not imply that the firm may accept service on their behalf). McDonald's service of process on the individual defendants was therefore improper under Rule 4(e)(2)(C). 9 The court will deny defendants' motion to dismiss the complaint for insufficient service of process but will quash service with respect to Bisno, Patterson, Fargen, and Ali. See Mitchell, 516 F. Supp. 2d at 457. The court will grant McDonald an additional thirty days from the date of this memorandum within which to serve these defendants in accordance with Rule 4. Failure to serve the summons and complaint properly may result in dismissal of the complaint against the individual defendants. See Fed. R. Civ. P. 4(m). B. Americans with Disabilities Act Defendants move to dismiss McDonald's ADA claim on the grounds that McDonald is not a "qualified individual" within the meaning of the Act, that her request for an extended [*21] leave of absence was not a reasonable accommodation, that McDonald was not similarly situated to other employees at SEIU HCPA, and that McDonald was not properly "regarded as" disabled. (Doc. 21 at 13-18). McDonald asserts that she has sufficiently pleaded a cause of action under the ADA but otherwise does not respond to defendants' arguments. (See Doc. 30 at 12-13). McDonald requests leave to amend her complaint to the extent that the court finds the allegations in her complaint insufficient to state a claim. (Id. at 13). HN10 To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate that "(1) [s]he is a disabled person within the meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) [s]he has suffered an otherwise adverse employment decision as a result of discrimination." Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998). Defendants concede, for the purposes of this motion, that McDonald has a disability 10 and do not dispute that McDonald suffered 9 McDonald does not contend that she properly effected service on the individual defendants under any other provisions of Federal Rule of Civil Procedure 4(e) or in accordance with the Pennsylvania Rules of Civil Procedure. 10 In light of this concession, the court need not address Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 11 of 22 Page 12 of 22 McDonald v. SEIU Healthcare an adverse employment action. (Doc. 21 at 13-18). Rather, they assert that McDonald fails to allege facts sufficient to satisfy the second element of her prima [*22] facie case. (Id. at 13-17). HN11 The ADA defines a "qualified individual" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Courts apply a two-part test to determine whether a plaintiff is a "qualified individual" under the ADA. First, the court must analyze whether "the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc." Gaul, 134 F.3d at 580 (quoting 29 C.F.R. § 1630 app.). 11 Next, the court must assess "whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation." Id. (quoting 29 C.F.R. § 1630 app.). A plaintiff bears the burden of identifying the existence of a reasonable accommodation. Fogleman v. Greater Hazleton Health Alliance, 122 F. App'x 581, 585-86 (3d Cir. 2004) (nonprecedential). McDonald alleges that defendants failed to accommodate her by denying her request [*23] for an extension of her medical leave beyond August 31, 2011. (See Doc. 1 ¶ 172(c)). HN12 A medical leave of absence may constitute a reasonable accommodation under the ADA. 29 C.F.R. § 1630 app. (noting that reasonable accommodations could include "providing additional unpaid leave for necessary treatment"). Contrary to defendants' position (Doc. 21 at 14), a plaintiff that seeks a reasonable medical leave is not necessarily required to be able to perform the essential functions of her position until the completion of her leave. See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004) ("[T]he federal courts that have permitted a leave of absence as a reasonable accommodation under the ADA have reasoned, explicitly or implicitly, that applying such a reasonable accommodation at the present time would enable the employee to perform his essential job functions in the near future."); Gibson v. Lafayette Manor, Inc., No. 05- 1082, 2007 U.S. Dist. LEXIS 99008, 2007 WL 951473, at *7 (W.D. Pa. Mar. 27, 2007) (concluding that plaintiff's whether McDonald has properly alleged discrimination under the "regarded as" definition of "disability." See 42 U.S.C. § 12102(1)(C). 11 The parties do not dispute whether McDonald possesses the requisite skill for the position. inability to return to work at the conclusion of her FMLA leave was "not dispositive of whether she is a 'qualified individual.'"). HN13 An open-ended or indefinite leave of absence, on the other hand, is not a reasonable accommodation. Fogleman, 122 F. App'x at 586 (citing cases); Reifer v. Colonial Intermediate Unit 20, 462 F. Supp. 2d 621, 636 (M.D. Pa. 2006) ("It is utterly unreasonable and not within the mandate of the ADA to expect an employer to accommodate an [*24] employee with an indefinite leave of absence."). In Luise v. Colonial Intermediate Unit 20, No. 13-CV-02626, 2014 U.S. Dist. LEXIS 38167, 2014 WL 1225969 (E.D. Pa. Mar. 21, 2014), the district court considered, on a motion to dismiss, whether plaintiff's request for an additional leave absence constituted a reasonable accommodation when the plaintiff was unable to work due to debilitating back pain. 2014 U.S. Dist. LEXIS 38167, [WL] at *8-10. Because the plaintiff requested leave for an additional, indefinite period of time and did not indicate that she was seeking such leave to pursue treatment that would enable her to return to work in the near future, the court dismissed the plaintiff's disability discrimination claim. 2014 U.S. Dist. LEXIS 38167, [WL] at *10. McDonald does not allege facts sufficient to support an inference that her final request for a medical leave was for anything but an indefinite period of time. On May 27, 2011, prior to her final request for an extension of her medical leave, McDonald indicated that she was unable to provide Bisno with an end date for her leave. (Doc. 1 ¶ 92; Doc. 21-1 Ex. H). On August 2, 2011, McDonald's psychiatrist similarly certified that he could not ascertain when McDonald would be able to return to work. (Doc. 1 ¶ 108). On August 11, 2011, in her final request for an extension of her medical leave, McDonald again sought an undefined extension. [*25] (Doc. 1 ¶ 112; Doc. 21-1 Ex. J). It was not until October 31, 2011 that McDonald's physician cleared her to return to work on a part-time basis. (Doc. 1 ¶ 122). Moreover, the complaint does not indicate that McDonald or her physicians informed SEIU HCPA why an additional extension of leave was necessary to accommodate her or that the additional leave was designed to permit her to return to work in the near future. The court concludes that McDonald does not adequately plead that she is a "qualified individual" within the meaning of the ADA. The court will dismiss McDonald's ADA claims without prejudice. In an amended complaint, McDonald may allege facts concerning, inter alia, the durations of her leaves of Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 12 of 22 Page 13 of 22 McDonald v. SEIU Healthcare absence, communications with her employer concerning the reasonableness of her requests for leave, or any failures on the part of SEIU HCPA to engage in a good faith "interactive process" with McDonald in an effort to determine appropriate accommodations for her. See Reifer, 462 F. Supp. 2d at 634. 12 C. Age Discrimination in Employment Act McDonald claims that she was discriminated against on the basis of her age in violation of the ADEA. Specifically, McDonald alleges that those outside her protected class were not subjected to unequal treatment and that she was treated less favorably than similarly situated employees. (Doc. 1 ¶¶ 176-180). Defendants move to dismiss McDonald's ADEA claim on the grounds that McDonald cannot demonstrate that she was treated differently than similarly situated employees and that she does not allege that her age was the "but- for" reason for her discharge. (Doc. 21 at 20-21). McDonald does not respond substantively to this aspect of the motion. HN14 The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a). To establish a prima facie case of age discrimination under the framework set [*27] forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), 13 a plaintiff must demonstrate that "(1) she is 12 The court is not persuaded by defendants' alternative argument that the purported absence of SEIU HCPA employees similarly situated to McDonald is fatal to McDonald's ADA claim. (See Doc. 21 at 17-18). As the court has [*26] explained, more favorable treatment of similarly situated employees tends to support a plaintiff's prima facie case but is not required to state a claim under the ADA. Shaffer v. Greater Hazleton Health Alliance, No. 3:12-CV- 02450, 2013 U.S. Dist. LEXIS 79169, 2013 WL 2443931, at *3 n.3 (M.D. Pa. June 5, 2013). 13 The Supreme Court "has not definitively decided whether the evidentiary framework of McDonnell Douglas . . . utilized in Title VII cases is appropriate in the ADEA context." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 n.2, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009). The Third Circuit has concluded, however, that McDonnell Douglas's burden-shifting framework is consistent with Gross in the context of ADEA cases and should continue to be applied. Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009). forty years of age or older; (2) the defendant took an adverse employment action against her; (3) she was qualified for the position in question; and (4) she was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus." Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). The prima facie case is flexible and should not be "rigidly" applied. Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999); Fitzpatrick v. Nat'l Mobile Television, 364 F. Supp. 2d 483, 490 (M.D. Pa. 2005). Courts have held, for example, that a plaintiff may satisfy the fourth prong of the prima facie case by establishing that she was treated less favorably than similarly situated younger employees, see Popko v. Penn State Milton S. Hershey Med. Ctr., No. 1:13-CV-01845, 2014 U.S. Dist. LEXIS 95486, 2014 WL 3508077, at *7 (M.D. Pa. July 14, 2014); Norman v. Kmart Corp., No. 3:07CV2222, 2011 U.S. Dist. LEXIS 95990, 2011 WL 3794886, at *6 (M.D. Pa. Aug. 26, 2011), aff'd, 485 F. App'x 591 (3d Cir. 2012), or by alleging facts sufficient to give rise to an inference of unlawful age discrimination, see Pivirotto, 191 F.3d at 357; Grabosky v. Tammac Corp., 127 F. Supp. 2d 610, 620-21 (M.D. Pa. 2000). McDonald does not allege that she was replaced by a younger employee. 14 She avers only that she received less favorable treatment than "similarly situated younger employees." (Doc. 1 ¶¶ 177-179). Without more, McDonald's ADEA claim cannot survive dismissal. Indeed, McDonald fails to allege any specific facts in support of her age discrimination claim. She does not indicate, for example, what duties the similarly situated employees performed, how they were treated differently in connection with leaves of absence, for what activities The court is mindful that the McDonnell Douglas framework provides an evidentiary standard rather than a pleading [*28] standard and that a plaintiff need not establish each element of a prima facie case to state a claim. Fowler, 578 F.3d at 213. The court uses these elements only as guideposts in determining whether McDonald has properly pleaded her claims in the instant action. See Klikus v. Cornell Iron Works, Inc., No. 3:13CV468, 2014 U.S. Dist. LEXIS 14832, 2014 WL 496471, at *3 (M.D. Pa. Feb. 6, 2014). 14 McDonald indicates, however, that her bookkeeping position may have been "outsourced" to ADP in June 2011. (Doc. 1 ¶ 133). To the extent that McDonald alleges a reduction in force, she must demonstrate that SEIU HCPA retained a sufficiently younger similarly situated employee to satisfy her prima facie case. Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 301 (3d Cir. 2004). Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 13 of 22 Page 14 of 22 McDonald v. SEIU Healthcare they could have been disciplined, what rights they successfully invoked under SEIU HCPA's policies, or any other circumstances that would give rise to an inference of unlawful age discrimination. Cf. McCall v. Butler Health Sys./Butler Mem'l Hosp., No. 13-130, 2013 U.S. Dist. LEXIS 170719, 2013 WL 6253417, at *9 (W.D. Pa. Dec. 4, 2013); Hobson v. St. Luke's Hosp. & Health Network, No. 08-CV-05652, 2009 U.S. Dist. LEXIS 89122, 2009 WL 3125513, at *4 (E.D. Pa. Sept. 28, 2009). Unlike Popko, in which the plaintiff alleged specific facts concerning the actions of a younger employee who was not disciplined for engaging in similar conduct, McDonald points to no such circumstances in support of her [*29] ADEA claim. See Popko, 2014 U.S. Dist. LEXIS 95486, 2014 WL 3508077, at *7. Her allegations that similarly situated younger employees were treated less favorably therefore constitute "legal conclusions that do not have a presumption of truth and can be disregarded." Klikus, 2014 U.S. Dist. LEXIS 14832, 2014 WL 496471, at *5 (citing Fowler, 578 F.3d at 210-11). For the foregoing reasons, the court will dismiss McDonald's ADEA claim without prejudice and will grant her leave to file an amended complaint alleging specific facts and circumstances in support of her claim for age discrimination. Defendants further argue that McDonald's ADEA claim should be dismissed because McDonald cannot demonstrate that her age was the "but-for" reason for her termination when she simultaneously states a claim for discrimination on the basis of disability. (Doc. 21 at 21). The court disagrees. In Gross, the Supreme Court held that HN15 a plaintiff who brings a disparate treatment claim under the ADEA must prove that age was the "but-for" cause [*30] of the adverse employment action. Gross, 557 U.S. at 180. As the Third Circuit explained post-Gross, however, a plaintiff need not establish that age discrimination is the "sole cause" for an adverse employment action to state a claim under the ADEA. Robinson v. City of Philadelphia, 491 F. App'x 295, 299 (3d Cir. 2012) (nonprecedential). McDonald must demonstrate that her age was a "determinative factor" in the adverse employment action. See Eldrup-Smith v. Sears Roebuck & Co., No. 1:12- CV-1862, 2014 U.S. Dist. LEXIS 46506, 2014 WL 1344598, at *6 (M.D. Pa. Apr. 4, 2014). The court is unable to conclude at this juncture that it was not. Finally, defendants move to strike or dismiss McDonald's request for punitive damages under the ADEA. (Doc. 21 at 22). The Third Circuit has concluded that damages for "pain and suffering" are improper in age discrimination cases but has not explicitly held that punitive damages are unavailable under the ADEA. See Rogers v. Exxon Research & Eng'g Co., 550 F.2d 834, 841 (3d Cir. 1977), overruled on other grounds by Smith v. Joseph Schlitz Brewing Co., 584 F.2d 1231 (3d Cir. 1978). Other courts of appeals and district courts within this circuit have reasoned that punitive damages are prohibited under the ADEA. Bellas v. WVHCS Retention Co., No. 3:11-CV-673, 2012 U.S. Dist. LEXIS 128133, 2012 WL 3961227, at *6 (M.D. Pa. Sept. 10, 2012) (collecting cases); Jordan v. Wilkes-Barre Gen. Hosp., No. 3:07CV390, 2008 U.S. Dist. LEXIS 64800, 2008 WL 3981460, at *6 (M.D. Pa. Aug. 22, 2008) (same). The court is persuaded by this weight of authority and will dismiss McDonald's request for punitive damages under the ADEA. See 5C WRIGHT & MILLER § 1380 (explaining that dismissal of the improper claim for damages is procedurally proper under these circumstances). 15 D. Hostile Work Environment The complaint contains several references to a hostile work environment at SEIU HCPA. (Doc. 1 ¶¶ 44, 153, 176). It is not apparent whether McDonald intends to allege hostile work environment claims under the ADEA alone or under both the ADA and ADEA, and her opposition brief offers no clarification. Liberally construing the complaint in McDonald's favor, the court will presume that McDonald wishes to state hostile work environment claims under both the ADA and ADEA. Defendants argue that any hostile work environment claims are untimely and insufficiently pleaded. (Doc. 21 at 19-20). 1. Timeliness of Claims To the extent that hostile work environment claims exist under the ADA and ADEA, 16 those claims are time- 15 The [*31] court notes that McDonald does not request liquidated damages in connection with her age discrimination claim, which remain available under the ADEA for willful violations. Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 373 (3d Cir. 2004). 16 The Third Circuit has assumed, without deciding, that causes of action for a hostile work environment are cognizable under the ADA and ADEA. See Slater v. Susquehanna Cnty., 465 F. App'x 132, 138 (3d Cir. 2012) (nonprecedential) (ADEA); Walton v. Mental Health Ass'n of Se. Pa., 168 F.3d 661, 666-67 & n.2 (3d Cir. 1999) (ADA). The court therefore assumes for the purposes of this memorandum that hostile work environment claims are available under both Acts. Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 14 of 22 Page 15 of 22 McDonald v. SEIU Healthcare barred here. HN16 A plaintiff must file a charge of discrimination no later than 300 days "after the alleged unlawful employment practice occurred" when she concurrently files the charge with the EEOC and a state agency. 42 U.S.C. § 2000e-5(e)(1). McDonald filed her charge with the EEOC and PHRC on June 27, 2012, [*32] exactly 300 days after her termination on September 1, 2011. (Doc. 1 ¶ 25). The only allegedly unlawful employment action that McDonald points to during this 300-day period is her discharge from SEIU HCPA. McDonald argues that her hostile work environment claims are timely under the "continuing violations doctrine." (Doc. 30 at 14-15). HN17 Under this doctrine, discriminatory practices that are not individually actionable may be aggregated to form a single hostile work environment claim. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013). To the extent that a plaintiff can show that the acts underlying the hostile work environment claim are part of the same unlawful employment practice and at least one such act falls within the statutory period, her hostile work environment claim will not be time-barred. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). As the Third Circuit explained, the Supreme Court drew a clear distinction between discrete acts, which are individually actionable, [*33] and acts that are not themselves actionable but may comprise a hostile work environment claim in the aggregate. O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (citing Morgan, 536 U.S. at 113). The Court concluded that hostile work environment claims are "different in kind" from discrete acts because "[t]heir very nature involves repeated conduct." Morgan, 536 U.S. at 115. Discrete acts must be raised within the statutory period or else lost, while other acts may occur outside the limitations period "so long as they are linked in a pattern of actions which continues into the applicable limitations period." O'Connor, 440 F.3d at 127. Discrete acts include termination, a failure to promote, a denial of transfer, and a refusal to hire. Morgan, 536 U.S. at 114. The majority of Pennsylvania district courts that have addressed the issue have found that a discrete act such as termination cannot be made part of a hostile work environment claim otherwise predicated on practices that occurred outside the limitations period. See, e.g., Santee v. Lehigh Valley Health Network, Inc., No. 13- 3774, 2013 U.S. Dist. LEXIS 179073, 2013 WL 6697865, at *6 (E.D. Pa. Dec. 19, 2013) ("Plaintiff's termination . . . is a discrete act and is not a component of a hostile work environment claim."); Riley v. St Mary Med. Ctr., No. 13-CV-7205, 2014 U.S. Dist. LEXIS 57065, 2014 WL 1632160, at *4 (E.D. Pa. Apr. 23, 2014) ("Plaintiff's . . . termination undoubtedly falls into the category of a 'discrete act' which, under the Third Circuit's reading of Morgan, may not be used in aggregate with other acts to constitute [*34] a hostile work environment claim." (footnote omitted)); see also Zankel v. Temple Univ., 245 F. App'x 196, 199 (3d Cir. 2007) (nonprecedential) ("[Plaintiff's] termination . . . is a discrete act, not a continuation of any earlier failures to accommodate that may have occurred [outside the limitations period]."). In Popko, the plaintiff similarly filed his charge with the EEOC exactly 300 days after his termination. The court held that plaintiff's hostile work environment claim was time-barred because the only allegedly unlawful act that occurred within the limitations period was plaintiff's termination, which could not be aggregated with other practices under the continuing violations doctrine. Popko, 2014 U.S. Dist. LEXIS 95486, 2014 WL 3508077, at *3. The court is persuaded by this authority. Because McDonald does not allege any unlawful employment practices within the limitations period other than the discrete act of her termination, the court will dismiss McDonald's hostile work environment claims without prejudice. McDonald is granted leave to file an amended complaint alleging any acts or practices between September 1, 2011 and June 27, 2012 that may give rise to an inference of a hostile work environment or support an application of the continuing violations doctrine. 2. Sufficiency of Claims [*35] The court further concludes that, even if her hostile work environment claims were not time-barred or otherwise facially deficient, 17 McDonald fails to allege sufficient facts to state hostile work environment claims. To prevail on a hostile work environment claim, as a general matter, a plaintiff must demonstrate that her workplace was "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Culler v. Sec'y of U.S. Veterans Affairs, 507 F. App'x 246, 249 (3d Cir. 2012) (nonprecedential) (quoting Morgan, 536 17 McDonald's hostile work environment claims also fail to the extent that she has not adequately alleged that she was a "qualified individual" within the meaning of the ADA or facts sufficient to give rise to an inference of unlawful discrimination under the ADEA, as the court explained supra. Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 15 of 22 Page 16 of 22 McDonald v. SEIU Healthcare U.S. at 116). 18 A court must examine the totality of the circumstances in assessing the hostility of the work environment, including the frequency of the discriminatory conduct, whether the conduct is physically threatening, whether the conduct unreasonably interferes with an employee's performance, and any psychological harm to the employee. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). A hostile work environment is only actionable, however, if the harassment or discrimination is "because of" a plaintiff's protected status. Culler, 507 F. App'x at 249 (quoting Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007)); see also Barclay v. Amtrak, 240 F. App'x 505, 508 (3d Cir. 2007) (nonprecedential) ("[T]he ADA does not protect an employee from every kind of harassment, only harassment that is based upon the employee's disability."). [*36] McDonald alleges, inter alia, that SEIU HCPA instituted a policy of mandatory attendance at union-related demonstrations and news conferences and that Fargen denied McDonald's request for an exemption from these events. (Doc. 1 ¶¶ 65-67). McDonald avers that she was "forced against her will" to attend these events for fear of losing her job and became "physically ill" at them. (Id. ¶¶ 68-69). On February 9, 2011-after attending these 18 Courts in this circuit have adopted slightly different requirements for hostile work environment claims under the ADA and ADEA. To state a hostile work environment claim under the ADA, a plaintiff must demonstrate that: (1) [she] is a qualified individual with a disability under the ADA; (2) she was subject to unwelcome harassment; (3) the harassment was based on her disability or a request for an accommodation; (4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive working environment; and (5) that [her employer] knew or should have known of the harassment and failed to take prompt effective remedial action. Walton, 168 F.3d at 667. A hostile work environment claim under the ADEA, on the other hand, requires: (1) intentional discrimination because of age which is (2) pervasive and regular, (3) has detrimental effects that (4) would be suffered by a reasonable [*37] person of the same age in the same position, and (5) [the existence of] respondeat superior liability . . . . Fries v. Metro. Mgmt. Corp., 293 F. Supp. 2d 498, 504 (E.D. Pa. 2003), aff'd sub nom. Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506 (3d Cir. 2004). events-McDonald fell "severely ill." (See id. ¶ 70). McDonald does not explain when SEIU HCPA implemented this mandatory attendance policy, how many demonstrations or conferences she was compelled to attend, or in what manner she became ill after attending these events. Viewing these facts in the light most favorable to McDonald, however, the court finds that McDonald plausibly alleges that the conditions at her workplace were sufficiently severe or pervasive so as to create a hostile work environment. See Culler, 507 F. App'x at 249. McDonald must also allege facts sufficient to support an inference that she was harassed or discriminated against because [*38] of a protected status, and in this respect the complaint fails to state hostile work environment claims. McDonald offers little more than conclusory assertions that defendants discriminated against her on the basis of her disability and age. (See Doc. 1 ¶¶ 168, 180). Cf. Thomas v. Pocono Mountain Sch. Dist., No. 3:10-CV-1946, 2011 U.S. Dist. LEXIS 65792, 2011 WL 2471532, at *8 (M.D. Pa. June 21, 2011). She does not, for example, point to comments by supervisors that would tend to show that McDonald was required to attend demonstrations on account of, or with a causal connection to, a protected status. The fact that an employer's conduct may have been harmful "does not indicate that it was based on [her] disability." Walton, 168 F.3d at 667. In Walton, the plaintiff's supervisor told the plaintiff-who, like McDonald, suffered from depression and agoraphobia-that she would be fired if she did not attend a consumer training program ceremony and that she was "manic-depressive," among other things. Id. at 664, 667 n.4. The Third Circuit concluded that while the plaintiff's relationship with her employer was poor, the plaintiff had not alleged facts that would permit a jury to find that she was harassed because of her disability. Id. at 667. 19 The court will dismiss McDonald's hostile work environment claims without prejudice on this additional basis. McDonald may allege [*39] facts concerning any connection between the allegedly hostile work environment and her disability or age in an amended complaint. E. Family and Medical Leave Act Defendants move to dismiss McDonald's retaliation claim under the FMLA. They argue that the claim is 19 The court also affirmed the district court's conclusion that the alleged harassment was not sufficiently severe or pervasive to constitute a hostile work environment. Walton, 168 F.3d at 667. Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 16 of 22 Page 17 of 22 McDonald v. SEIU Healthcare time-barred, that McDonald's allegations of retaliation are facially deficient, and that the claim fails as a matter of law with respect to certain individual defendants. (Doc. 21 at 22-26). The court agrees with defendants in part. 1. Timeliness of Claim HN18 A plaintiff must generally commence a cause of action under the FMLA within two years "after the date of the last event constituting the alleged violation for which the action is brought." 29 U.S.C. § 2617(c)(1). The only statutory exception to this rule is when the alleged violation was "willful." 29 U.S.C. § 2617(c)(2). In a willful violation case, plaintiff must commence an action within three years of the violation. Id. In the instant matter, McDonald filed her complaint on October 14, 2013, more than two years but less than three years after her termination, [*40] the last event for which McDonald seeks relief. McDonald's FMLA claim is therefore untimely unless she can avail herself of the three-year limitations period for "willful" violations. Neither the Supreme Court nor the Third Circuit have defined "willful" within the meaning of the FMLA's three- year limitations period. See Seifert v. Commonwealth of Pa. Human Relations Comm'n, 515 F. Supp. 2d 601, 611 (W.D. Pa. 2007), aff'd on other grounds, 301 F. App'x 194 (3d Cir. 2008). Within the context of the Fair Labor Standards Act, however, the Court has explained that an employer's actions are "willful" when "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S. Ct. 1677, 100 L. Ed. 2d 115 (1988). Mere negligence is not enough. Id. Other courts of appeals and district courts within this circuit have applied this standard to the FMLA's limitations period. See, e.g., Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 33 (1st Cir. 2003); Rigel v. Wilks, No. 1:03-CV-971, 2006 U.S. Dist. LEXIS 93659, 2006 WL 3831384, at *13 (M.D. Pa. Dec. 28, 2006). Contrary to McDonald's position (Doc. 30 at 14), the complaint does not adequately allege that defendants' violations of the FMLA were willful. The only references to willful behavior in the complaint concern McDonald's claims for unlawful discharge and failure to accommodate under the ADA and for breach of contract, both of which are distinct from her FMLA claim. (See Doc. 1 ¶¶ 172, 202). McDonald also fails to plead [*41] that defendants knew or recklessly disregarded that their conduct was violative of the FMLA. See McLaughlin, 486 U.S. at 133. Without such allegations, or facts sufficient to support a reasonable inference that defendants' conduct was willful with respect to any FMLA violation, McDonald's FMLA claim must be dismissed without prejudice as untimely. The court will permit McDonald to amend her complaint to allege that defendants willfully violated the FMLA. 2. Sufficiency of Claim in General HN19 The FMLA was designed in part "to balance the demands of the workplace with the needs of families." 29 U.S.C. § 2601(b)(1). As the court has explained, the FMLA contains both prescriptive and proscriptive rights. Rigel, 2006 U.S. Dist. LEXIS 93659, 2006 WL 3831384, at *10. Prescriptive rights create substantive rights for employees, such as the ability to take up to twelve weeks of unpaid leave, and prohibit "interference" with those rights. Id. (citing 29 U.S.C. § 2615(a)(1)). Proscriptive rights, by contrast, make unlawful discrimination or retaliation against an employee for exercising the FMLA's prescriptive rights. Id. (citing 29 U.S.C. § 2615(a)(2)). The Third Circuit has observed that although retaliation claims alleging that an employee was unlawfully terminated for taking FMLA leave do not fall within the "literal scope" of 29 U.S.C. § 2615(a)(2), such claims are [*42] nevertheless cognizable under 29 C.F.R. § 825.220(c). Conoshenti, 364 F.3d at 146 n.9; see also Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 n.10 (3d Cir. 2012) ("[W]e have predicated liability for retaliation based on an employee's exercise of FMLA rights on the regulation itself."). The relevant regulation provides that the FMLA "prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights." § 825.220(c). The distinction between prescriptive and proscriptive rights is significant in the instant case. Count III of the complaint is labeled "FMLA-Retaliation." (Doc. 1 at 39). Within this count, McDonald broadly alleges that defendants retaliated against her in violation of the FMLA by "treating her different, discriminating against her, failing to accommodate her, targeting her, and ultimately terminating her for alleged job abandonment." (Id. ¶ 184). McDonald does not succinctly allege in this count that the retaliation was in response to her taking FMLA leave, but elsewhere in the complaint refers to "retaliation for taking FMLA and medical leave." (See id. ¶ 190). Construing the complaint in her favor, the court finds that McDonald intends to bring a cause of action under the FMLA for retaliation predicated on her [*43] Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 17 of 22 Page 18 of 22 McDonald v. SEIU Healthcare exercise of FMLA rights. 20 HN20 To state a retaliation claim, a plaintiff must demonstrate that "(1) she invoked her right to FMLA- qualifying leave, (2) she suffered an adverse employment decision, and (3) the adverse action was causally related to her invocation of rights." Lichtenstein, 691 F.3d at 301-02. Defendants argue that McDonald did not suffer an adverse employment action because she was unable to return to work following her FMLA leave and that McDonald does not sufficiently allege that any adverse action was causally related to her leave. (Doc. 21 at 23-26). Defendants cite a nonprecedential Third Circuit opinion in support of the proposition that if an employee is unable to return to work after the expiration of her FMLA leave, her employer may lawfully terminate her. See Katekovich v. Team Rent A Car of Pittsburgh, Inc., 36 F. App'x 688, 690 (3d Cir. 2002) (nonprecedential). In Katekovich, the court held that an employer did not violate the FMLA when it terminated an employee three weeks after she was hospitalized for sleep-related disorders. Id. at 689-91. The employee had not proved that she would have been able to return to work after the completion of her twelve-week FMLA leave. Id. at 690-91. Katekovich does not carry the weight that defendants [*44] ascribe to it. First, the opinion does not indicate whether the court considered an interference or retaliation claim under the FMLA. HN21 Interference claims concern an employee's prescriptive rights under the FMLA, and an employee may not be able to state an interference claim when she is no longer entitled to FMLA benefits. See Thurston v. Cherry Hill Triplex, 941 F. Supp. 2d 520, 525-30 (D.N.J. 2008). Retaliation claims, on the other hand, concern an employer's reasons for terminating an employee and are not conditioned upon the existence of remaining FMLA entitlements. See id. at 525-32 (explaining the distinction between interference claims and retaliation claims and concluding that "an employee is not precluded as a matter of law from bringing a retaliation claim simply because he or she exceeded the twelve- week FMLA entitlement."); see also Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998) (observing that the motivations of the employer are relevant when retaliation claims are at issue). To the extent that Katekovich concerns only prescriptive rights, 20 McDonald does not appear to bring an interference claim under the FMLA. it does not support the proposition that an employer may retaliate against an employee for taking FMLA leave, even if she is unable to return to work following her leave. Second, defendants' interpretation of this authority-carried to its logical conclusion-would imply that [*45] an employer violates the FLMA when, in retaliation for exercising her FMLA rights, it terminates an employee who returns to work the day after her twelve-week leave, but does not violate the FMLA when, in retaliation for exercising those same rights, it terminates an employee who is unable to return until the following day. The court cannot countenance this conclusion. Finally, Katekovich is not binding on the court. 21 The Third Circuit recently cast serious doubt on the validity of defendants' argument. In Budhun v. Reading Hospital & Medical Center, No. 11-4625, 765 F.3d 245, 2014 U.S. App. LEXIS 16541, 2014 WL 4211116 (3d Cir. Aug. 27, 2014) (precedential), Reading Hospital approved FMLA leave for Budhun through September 2010 and non-FMLA leave [*46] through November 2010. 2014 U.S. App. LEXIS 16541, [WL] at *3. When Budhun was unable to return to work after her FMLA leave expired, Reading offered Budhun's position to another employee. Id. Reading argued that Budhun did not experience an adverse employment action because it considered her to have resigned voluntarily in 21 The court acknowledges that some district courts in this circuit have concluded that a plaintiff does not suffer an adverse employment action under the FMLA when she is unable to return to work after her FMLA leave. See, e.g., Freeman v. Phila. Hous. Auth., No. 12-1422, 2013 U.S. Dist. LEXIS 100774, 2013 WL 3761274, at *22 (E.D. Pa. July 18, 2013); Gibson, 2007 U.S. Dist. LEXIS 99008, 2007 WL 951473, at *19; Dogmanits v. Capital Blue Cross, 413 F. Supp. 2d 452, 463 (E.D. Pa. 2005). Others have reasoned that a plaintiff's ability to state a retaliation claim does not depend on her ability to return to work, many noting that the contrary decisions conflate prescriptive and proscriptive rights under the FMLA. See, e.g., Donald v. Se. Pa. Transp. Auth. (SEPTA), No. 13-0440, 2014 U.S. Dist. LEXIS 103670, 2014 WL 3746520, at *5-6 (E.D. Pa. July 29, 2014); Fleck v. WILMAC Corp., No. 10-05562, 2011 U.S. Dist. LEXIS 54039, 2011 WL 1899198, at *9-10 (E.D. Pa. May 19, 2011); Castellani v. Bucks Cnty. Municipality, No. 07-1198, 2008 U.S. Dist. LEXIS 66036, 2008 WL 3984064, at *6 (E.D. Pa. Aug. 27, 2008), aff'd, 351 F. App'x 774 (3d Cir. 2009); Chapman v. UPMC Health Sys., 516 F. Supp. 2d 506, 524 & n.4 (W.D. Pa. 2007); Keim v. Nat'l R.R. Passenger Corp., No. 05-CV-4338, 2007 U.S. Dist. LEXIS 54200, 2007 WL 2155656, at *6-7 & n.6 (E.D. Pa. July 26, 2007). For the reasons identified in this memorandum, this court finds the latter authority persuasive. Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 18 of 22 Page 19 of 22 McDonald v. SEIU Healthcare November 2010 when she failed to return to work after her non-FMLA leave. 2014 U.S. App. LEXIS 16541, [WL] at *10. The district court granted summary judgment to Reading on Budhun's FMLA retaliation claim in part because Budhun was unable to return to work following her FMLA leave. 2014 U.S. App. LEXIS 16541, [WL] at *4. The Third Circuit vacated this aspect of the decision. It held that Budhun could have suffered an adverse employment action when Reading replaced Budhun after her FMLA leave expired, notwithstanding the fact that Budhun was unable to return to work at that time. 2014 U.S. App. LEXIS 16541, [WL] at *10. Indeed, Reading required Budhun to return her keys and remove her personal items, prohibited her from entering the workplace, and did not offer her another position at the hospital. Id. Implying that formal termination after the expiration of FMLA leave would constitute an adverse employment action, the court concluded that these lesser actions similarly altered Budhun's "privileges of employment." [*47] See id. SEIU HCPA terminated McDonald outright after the conclusion of her FMLA leave. 22 Applying the ratio decidendi of Budhun, McDonald sufficiently alleges an adverse employment action with respect to her retaliation claim under the FMLA. The court will deny defendants' motion to dismiss to the extent that defendants argue that McDonald's inability to return to work after her FMLA leave, standing alone, renders her termination nonadverse for the purposes of her retaliation claim. Defendants further contend that McDonald does not sufficiently allege that her termination was related to her exercise of FMLA rights. HN22 A plaintiff may establish a causal link between her FMLA leave and an adverse employment action by showing "(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a [*48] pattern of antagonism coupled with timing to establish a causal link." Budhun, 2014 U.S. App. LEXIS 16541, 2014 WL 4211116, at *11 (quoting Lauren W. ex rel. 22 McDonald also alleges that, during her FMLA leave, her personal items were placed in a cupboard, her mailbox was removed, and her telephone message was changed. (Doc. 1 ¶¶ 127-132). The court need not consider whether these actions constitute adverse employment actions at this stage in the proceedings because McDonald's termination is sufficient. See Budhun, 2014 U.S. App. LEXIS 16541, 2014 WL 4211116, at *10. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). When the temporal proximity is not unusually suggestive, a plaintiff may still establish causation if "the proffered evidence, looked at as a whole, may suffice to raise the inference." LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)). McDonald avers that she was terminated several months after taking a leave of absence under the FMLA and alleges specific facts regarding defendants' negative treatment of her position at SEIU HCPA during her FMLA leave. These allegations are sufficient; whether the precise timing of defendants' employment actions establishes causation need not be resolved at this stage in the proceedings. See Hines v. Twp. of Harrison, Pa., No. 07-0594, 2007 U.S. Dist. LEXIS 72822, 2007 WL 2907896, at *2 (W.D. Pa. Sept. 30, 2007). Accordingly, the court will deny defendants' motion to dismiss McDonald's retaliation claim to the extent that they contend McDonald cannot satisfy the FMLA's causation requirement. 3. Sufficiency of Claim as to Patterson, Fargen, and Ali Finally, defendants assert that McDonald's retaliation claim should be dismissed with respect to Patterson, Fargen, and Ali because McDonald does not allege that they were responsible for any retaliation. (Doc. 21 at 26). The court agrees. 23 HN23 An individual may be held liable under [*49] the FMLA "when he or she exercises supervisory authority over the complaining employee and was responsible in whole or part for the alleged violation while acting in the employer's interest." Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 408, 417 (3d Cir. 2012) (citation omitted) (internal quotation marks omitted). Factors that determine the existence of supervisory authority over an employee include whether the individual had the power to hire or terminate the employee and whether the individual controlled the employee's work schedules or conditions of employment. Id. at 418. McDonald alleges that Patterson, Fargen, and Ali each possessed supervisory authority over her and her conditions of employment. (Doc. 1 ¶¶ 15-17). McDonald also points to specific instances in which these defendants exercised their supervisory role over 23 The court notes that McDonald does not respond to this portion of the motion. Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 19 of 22 Page 20 of 22 McDonald v. SEIU Healthcare McDonald or her work schedule. (See id. ¶¶ 65 (Patterson), 66-67 (Fargen), 134-135 (Ali)). McDonald does not, however, allege facts sufficient to support an inference that Patterson, Fargen, or Ali were responsible for retaliating against her in connection with her FMLA leave. See Haybarger, 667 F.3d at 417. With the exception of certain administrative activities by Fargen and two comments [*50] by Ali concerning McDonald's position at SEIU IU HCPA, 24 McDonald does not plead any specific actions on the part of Patterson, Fargen, or Ali between the commencement of her FMLA leave and her termination. The court cannot conclude that amendment would be futile and hence will dismiss McDonald's retaliation claim against Patterson, Fargen, and Ali without prejudice. F. Pennsylvania Human Relations Act HN24 The PHRA makes it unlawful, inter alia, for employers to refuse to hire, terminate, or discriminate against employees on the basis of disability or age. 43 PA. CONS. STAT. § 955(a). Disability or age discrimination claims under the PHRA are construed as coextensive with the respective scopes of the ADA and ADEA. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). To bring a claim under the PHRA, a plaintiff must file a complaint with the PHRC within 180 days of the allegedly discriminatory act. 43 PA. CONS. STAT. § 959(h). Defendants contend that McDonald's PHRA claim is time-barred because she did not file her complaint with the PHRC until 300 days after her termination from SEIU HCPA. (Doc. 21 at 27). McDonald does not contest this fact or point to any reasons [*51] why the court should excuse the untimely nature of this claim. Accordingly, the court will dismiss McDonald's PHRA claim with prejudice. Leave to amend will be denied as futile. See Grayson, 293 F.3d at 108. 25 24 McDonald does not allege that Ali was in any way responsible for her termination or other adverse employment actions. 25 In the interest of completeness, the court also dismisses McDonald's PHRA claim on the grounds that she fails to state a claim under the ADA or ADEA. See Amiot v. Kemper Ins. Co., 122 F. App'x 577, 580 (3d Cir. 2004) (nonprecedential) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999)) (reasoning that because the plaintiff failed to state a claim under the ADA or ADEA, the plaintiff's PHRA claim similarly fails). G. Breach of Contract McDonald alleges that defendants breached three separate policies: (1) SEIU HCPA's medical leave policy, (2) SEIU HCPA's anti-discrimination and antiharassment policies, and (3) SEIU HCPA's union membership policy. (Doc. 1 ¶¶ 202-204). Defendants move to dismiss McDonald's breach of contract claims on the grounds that these policies are not contracts and that, with respect to the alleged breach of the union membership policy, McDonald has not pleaded damages. (Doc. 21 at 28-29). McDonald does not respond to these arguments. HN25 To establish a claim for breach of contract under Pennsylvania law, a plaintiff must plead "(1) the existence of a contract, including its essential terms; [*52] (2) a breach of a duty imposed by the contract; and (3) resultant damages." CoreStates Bank, Nat'l Ass'n v. Cutillo, 1999 PA Super 14, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999). HN26 There is a "very strong presumption" in Pennsylvania that employment relationships are at will. Violanti v. Emery Worldwide A- CF Co., 847 F. Supp. 1251, 1258 (M.D. Pa. 1994) (citing Scott v. Extracorporeal, Inc., 376 Pa. Super. 90, 545 A.2d 334, 336 (Pa. Super. Ct. 1988)). An employee manual or handbook does not create an enforceable contract between an employer and employee unless "a reasonable person in the employee's position would interpret its provisions as illustrating the employer's intent to overcome the at-will rule and be legally bound by the representations contained in the book." Engle v. Milton Hershey Sch., No. 1:06 CV 010093, 2007 U.S. Dist. LEXIS 3975, 2007 WL 1365916, at *8 (M.D. Pa. Jan. 19, 2007) (quoting Hartman v. Sterling, Inc., No. 01-CV-2630, 2003 U.S. Dist. LEXIS 18140, 2003 WL 22358548, at *13 (E.D. Pa. Sept. 10, 2003)). With respect to SEIU HCPA's medical leave policy, McDonald does not plead that the policy constituted an express or implied contract, that SEIU HCPA intended to be legally bound by this policy, or that McDonald was anything other than an at-will employee. Hence, this claim cannot survive dismissal. McDonald's claim for breach of the anti-discrimination and anti-harassment policies fares no better. As with her first breach of contract theory, McDonald does not allege that this policy represented a contract with SEIU HCPA. HN27 An employer's policy statement that it will comply with its legal obligations, without more, does not create a legally binding obligation. Monaco, 359 F.3d at 308; see also Tourtellotte v. Eli Lilly & Co., No. 09-0774, 2013 U.S. Dist. LEXIS 54397, 2013 WL 1628607, at *4 Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 20 of 22 Page 21 of 22 McDonald v. SEIU Healthcare (E.D. Pa. Apr. 16, 2013) (holding [*53] that "generalized anti-discrimination language" in an employer's policy manual did not create any new obligations). 26 McDonald's claim that Patterson breached SEIU HCPA's union membership policy also fails as a matter of law. The only factual allegation remotely pertinent to this claim is that Patterson sent McDonald an email after McDonald's bereavement leave in January 2011 in which Patterson indicated that she was displeased that McDonald had not joined the union. (Doc. 1 ¶¶ 45-46). McDonald does not allege that the union membership policy constituted a contract. Even if she had, this meager allegation does not plausibly support an inference that Patterson breached any such contract or that McDonald suffered any damages as a result of that breach. The court will also dismiss all breach of contract claims against the individual defendants. HN28 Under Pennsylvania [*54] law, an employee who is not a party to the company's employment contract cannot be liable for the company's breach of that contract unless the employee assumed a personal duty within that contract. White v. Ciber, Inc., No. 1:07-CV-1483, 2007 U.S. Dist. LEXIS 84292, 2007 WL 3491272, at *6 (M.D. Pa. Nov. 14, 2007) (citations omitted); see also Hrosik v. Latrobe Steel Co., No. 94-1361, 1995 U.S. Dist. LEXIS 21866, 1995 WL 456212, at *6 (W.D. Pa. Apr. 25, 1995) ("Persons who have not entered into an employment contract cannot possibly be liable for a breach thereof."). In the instant matter, McDonald does not allege that any of the individual defendants were parties to the policies at issue or otherwise assumed any personal obligations under those policies. The court notes that McDonald does not attach the policies at issue to her complaint and thus is unable to determine conclusively whether amendment would be futile. In this circumstance, the court will dismiss McDonald's breach of contract claims without prejudice and permit McDonald to amend her complaint. IV. Conclusion 26 A breach of contract claim based on an employer's anti- discrimination policy may be cognizable when that policy prohibits discrimination on the basis of a status not protected by existing law. Monaco, 359 F.3d at 309 n.16. In the instant matter, McDonald alleges discrimination on the basis of her disability and age, which the ADA, ADEA, and PHRA expressly proscribe. For all of the foregoing reasons and subject to the accompanying order, the court will grant in part and deny in part defendants' motions to dismiss (Doc. 20), extend the time to effect service upon the individual defendants, and grant McDonald leave to file an amended complaint. An appropriate order follows. /s/ CHRISTOPHER C. CONNER Christopher [*55] C. Conner, Chief Judge United States District Court Middle District of Pennsylvania Dated: September 18, 2014 ORDER AND NOW, this 18th day of September, 2014, upon consideration of the motion (Doc. 20) to dismiss pursuant to Rule 12(b)(4), Rule 12(b)(5), and Rule 12(b)(6) of the Federal Rules of Civil Procedure filed by SEIU Healthcare Pennsylvania, Neal Bisno, Kim Patterson, Sharmika Fargen, and Michele Ali seeking dismissal of plaintiff Deborah McDonald's complaint (Doc. 1) in its entirety, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that defendants' motion (Doc. 20) is GRANTED in part and DENIED in part, as follows: 1. Defendants' motion to dismiss is DENIED to the extent that it relies on Rules 12(b)(4) and 12(b)(5). 2. Defendants' motion to dismiss is GRANTED to the extent that it relies on Rule 12(b)(6), as follows: a. Plaintiff's claims under the Americans with Disabilities Act ("ADA") in Count I of the complaint are DISMISSED without prejudice. b. Plaintiff's claims under the Age Discrimination in Employment Act ("ADEA") in Count II of the complaint are DISMISSED without prejudice. c. Plaintiff's claim for punitive damages under the ADEA in Count II of the complaint is DISMISSED with prejudice. d. To the extent that plaintiff alleges hostile work environment [*56] claims under the ADA or ADEA, they are DISMISSED without prejudice. Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 21 of 22 Page 22 of 22 McDonald v. SEIU Healthcare e. Plaintiff's claim under the Family and Medical Leave Act in Count III of the complaint is DISMISSED without prejudice. f. Plaintiff's claim under the Pennsylvania Human Relations Act in Count IV of the complaint is DISMISSED with prejudice. g. Plaintiff's claims for breach of contract in Count V of the complaint are DISMISSED without prejudice. 3. Plaintiff is granted leave to file an amended complaint to amend those claims dismissed without prejudice within thirty (30) days of the date of this order. If plaintiff fails to file an amended pleading within that time, the complaint will be dismissed with prejudice and the Clerk of Court will be directed to close this case. 4. Service of the summons and complaint upon SEIU Healthcare Pennsylvania on February 25, 2014 is deemed timely. 5. Service of the summons and complaint upon Neal Bisno, Kim Patterson, Sharmika Fargen, and Michele Ali is QUASHED. Within thirty (30) days of the date of this order, Plaintiff shall effectuate service of the summons and amended complaint in a manner consistent with Rule 4 of the Federal Rules of Civil Procedure. Failure to effect service may result in dismissal of the claims against these [*57] defendants. See Fed. R. Civ. P. 4(m). 6. Notwithstanding ¶¶ 1 through 5 above, all action required by this order and accompanying memorandum shall be stayed pending the conclusion of mediation proceedings and shall thereafter run from the date on which the mediation proceedings conclude. /s/ CHRISTOPHER C. CONNER Christopher C. Conner, Chief Judge United States District Court Middle District of Pennsylvania End of Document Case 3:16-cv-01055-JMM Document 14-7 Filed 09/01/16 Page 22 of 22 Cited As of: September 1, 2016 11:41 AM EDT Hines v. Twp. of Harrison United States District Court for the Western District of Pennsylvania September 28, 2007, Decided; September 30, 2007, Filed Civil Action No. 07-0594 Reporter 2007 U.S. Dist. LEXIS 72822; 19 Am. Disabilities Cas. (BNA) 1537; 12 Wage & Hour Cas. 2d (BNA) 1885 ROBERT J. HINES, Plaintiff, v. THE TOWNSHIP OF HARRISON, PENNSYLVANIA, Defendant. Core Terms motion to dismiss, alleges, retaliation, punitive damages, disability, rights Case Summary Procedural Posture Plaintiff employee sued defendant employer and brought claims under the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and the Pennsylvania Human Relations Act (PHRA). The employee alleged that his FMLA rights were interfered with, that he was discriminated against due to his disability, and that he suffered retaliation under both the FMLA and the ADA. The employer moved to dismiss. Overview The employee claimed that the employer discouraged, interfered with, or "chilled" the exercise of his FMLA rights. In particular, the employee alleged that he was not given proper notice of his rights under the FMLA, and that he was required to execute burdensome medical authorizations beyond those required by the FMLA. The court held that these were both viable theories of recovery under the FMLA, if supported by appropriate facts. However, it was improper to dismiss the FMLA claim without the benefit of a factual record. Therefore, the employee's FMLA interference claim survived dismissal. The employee's FMLA retaliation claim also survived dismissal. As to the employee's ADA claims, the employer argued that the ADA claim was fatally flawed because the employee could not establish that he was a "qualified individual." According to the employer, an employee who did not go to work cannot, by definition, perform the essential functions of the job. Although the employee was absent from work for many months, there was some dispute as to when he was able to return, and why his return date was extended. Thus, the employee's ADA discrimination claim survived dismissal. Outcome The court dismissed the employee's claim for punitive damages, but denied the remainder of the employer's motion to dismiss. LexisNexis® Headnotes Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN1 For the purposes of a motion to dismiss for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6), a court must accept as true all well-pleaded factual allegations in the complaint and construe the complaint in the light most favorable to the plaintiff in order to determine whether under any reasonable reading of the pleadings, the plaintiff may be entitled to relief. The proper inquiry is whether relief could be granted under any set of facts that could be proved consistent with the allegations. Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN2 A court cannot make a determination as to causation in the context of a motion to dismiss. Labor & Employment Law > ... > Disability Discrimination > Evidence > General Overview Labor & Employment Law > ... > Evidence > Burdens of Case 3:16-cv-01055-JMM Document 14-8 Filed 09/01/16 Page 1 of 4 Page 2 of 4 Hines v. Twp. of Harrison Proof > Employee Burdens of Proof HN3 To state a prima facia case of disability discrimination under the Americans with Disabilities Act, a plaintiff must show that: (1) he has a disability; (2) he is qualified to perform the essential functions of the job, with, or without, reasonable accommodation; and (3) he has suffered an adverse employment action. Labor & Employment Law > ... > Disability Discrimination > Scope & Definitions > Qualified Individuals With Disabilities HN4 Regular attendance often is an essential function of a job. However, there are situations in which extended leave is allowed under the Americans with Disabilities Act (ADA), such as where the leave will enable an employee to perform the essential functions of the job in the near future. There are several factors to consider in deciding whether the leave is of the qualifying kind under the ADA, or not. Counsel: [*1] For ROBERT J. HINES, Plaintiff: Charles A. Lamberton, LEAD ATTORNEY, Lamberton Law Firm, Pittsburgh, PA; Christian Bagin, LEAD ATTORNEY, Wienand & Bagin, Pittsburgh, PA. For THE TOWNSHIP OF HARRISON PENNSYLVANIA, Defendant: James G. Seaman, LEAD ATTORNEY, Eckert, Seamans, Cherin & Mellott, Pittsburgh, PA; Karin Romano Galbraith, Thomas P. McGinnis, Thomas, Thomas & Hafer, Pittsburgh, PA. Judges: Gary L. Lancaster, District Judge. Opinion by: Gary L. Lancaster Opinion MEMORANDUM and ORDER Gary L. Lancaster, District Judge. This is an action in employment discrimination. Plaintiff has brought claims under the Americans with Disabilities Act, the Family Medical Leave Act, and the Pennsylvania Human Relations Act. Plaintiff alleges that his FMLA rights were interfered with, that he was discriminated against due to his disability, and that he suffered retaliation under both the FMLA and the ADA. 1 1 Plaintiff's pendant PHRA claim is construed consistently with Plaintiff seeks injunctive relief against future unlawful practices and monetary relief, including punitive damages. 2 Defendant has filed a motion to dismiss arguing that plaintiff has failed to state a claim under either the FMLA, or the ADA [doc. no. 9]. Because the objections raised by defendant require consideration of factual matters not yet in evidence, we deny the motion to dismiss. I. BACKGROUND Plaintiff worked for Harrison Township for approximately 25 years, most recently as their Director of Public Works. In November of 2004 plaintiff's doctors diagnosed him with depression and anxiety, and advised him to stop working. Plaintiff followed his doctors' advice, and stopped reporting to work on November 17, 2004. Plaintiff was cleared to return to work sometime in June of 2005, although there is a factual dispute as to the exact date on which his doctors released him. During his medical leave, plaintiff alleges that defendant failed to provide him with the required notice of his rights under the FMLA, repeatedly threatened him with termination for taking time off, required unnecessary [*3] medical documentation and authorizations, refused to refrain from contacting him at home regarding work matters, and revoked his sick pay. According to plaintiff these actions caused him financial harm and exacerbated his medical condition, making him unable to return to work more promptly. II. STANDARD OF REVIEW HN1 For the purposes of a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), this court must accept as true all well- pleaded factual allegations in the complaint and construe the complaint in the light most favorable to the plaintiff in order to determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988). The proper inquiry is "whether relief could be granted…'under any set of facts federal law. Salley v. Circuit City Stores, Inc., 160 F.3d 977, 979 n.1 (3d Cir. 1998); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). 2 Defendant [*2] has moved to dismiss plaintiff's claim for punitive damages, arguing that municipalities are not subject to such damages. Plaintiff has not responded to this point. We will dismiss the claim for punitive damages. Case 3:16-cv-01055-JMM Document 14-8 Filed 09/01/16 Page 2 of 4 Page 3 of 4 Hines v. Twp. of Harrison that could be proved consistent with the allegations'". Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 71 (3d Cir. 1994). III. DISCUSSION Based on this legal standard, the facts pled in the complaint, and the relevant case law, we cannot say at this point in the proceedings that there is no possibility that plaintiff will be entitled to [*4] any relief against defendant. A. FMLA Plaintiff has asserted an interference claim and a retaliation claim under the FMLA. Plaintiff does not claim that he was denied leave under the FMLA. It is undisputed that he was on leave for a significant period of time, more than that allowed under the FMLA. Instead, plaintiff claims that defendant discouraged, interfered with, or "chilled" the exercise of his FMLA rights. In particular, plaintiff alleges that he was not given proper notice of his rights under the FMLA, and that he was required to execute burdensome medical authorizations beyond those required by the FMLA. According to plaintiff, he was prejudiced by these actions because he lost the ability to structure his leave in the most advantageous way possible, and disclosed personal information that he had no duty to reveal to his employer. These are both viable theories of recovery under the FMLA, if supported by appropriate facts. Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006); Callison v. City of Philadelphia, 430 F.3d 117, 119-120 (3d Cir. 2005); Conoshenti v. Public Service Electric & Gas Comp., 364 F.3d 135, 142-44 (3d Cir. 2004); Gibson v. Lafayette Manor, Inc., 2007 U.S. Dist. LEXIS 22291, 2007 WL 951473, *17-18 (W.D. Pa. Mar. 27, 2007). [*5] Whether plaintiff will be able to develop the facts necessary to support such an interference claim is uncertain. However, it would be improper to dismiss the FMLA claim without the benefit of a factual record. Therefore, plaintiff's FMLA interference claim survives a motion to dismiss. Plaintiff has also brought a retaliation claim under the FMLA. He claims that he suffered several adverse employment actions because he used his FMLA benefits, including losing his sick pay benefits, and being terminated. Provided plaintiff can causally connect these employment actions to his taking of FMLA leave, he could establish a prima facia case. Conoshenti, 364 F.3d at 146-48. However, HN2 we cannot make a determination as to causation in the context of a motion to dismiss. See e.g., Ashton v. American Telephone and Telegraph Comp., 225 Fed.Appx. 61, 67-68 (3d Cir. 2007) (causation decided on motion for summary judgment). Once a factual record is developed, we can properly evaluate the issue of causation. Therefore, the FMLA retaliation claim also survives a motion to dismiss. B. ADA Plaintiff has also asserted claims under the ADA. Plaintiff alleges that he was discriminated against because of his [*6] disability, and was retaliated against for asserting his rights under the ADA. HN3 To state a prima facia case of disability discrimination under the ADA, a plaintiff must show that: (1) he has a disability; (2) he is qualified to perform the essential functions of the job, with, or without, reasonable accommodation; and (3) he has suffered an adverse employment action. Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998). Defendant argues that plaintiff's discrimination claim is fatally flawed because plaintiff cannot establish that he is a "qualified individual." According to defendant, an employee who does not go to work cannot, by definition, perform the essential functions of the job. Defendant is right, to some extent. HN4 Regular attendance often is an essential function of a job. Smith v. Davis, 248 F.3d 249, 251 (3d Cir. 2001). However, there are situations in which extended leave is allowed under the ADA, such as where the leave will enable an employee to perform the essential functions of the job in the near future. Conoshenti, 364 F.3d at 151. There are several factors to consider in deciding whether the leave was of the qualifying kind under the ADA, or not. See [*7] e.g., Fogleman v. Greater Hazleton Health Alliance, 122 Fed. Appx. 581 (3d Cir. 2004). Although plaintiff was absent from work for many months, there is some dispute as to when he was able to return, and why his return date was extended. We cannot assess these factors, and resolve such factual disputes, in the context of a motion to dismiss. Thus, plaintiff's ADA discrimination claim survives a motion to dismiss. Defendant further objects to plaintiff's ADA discrimination claim, and his ADA retaliation claim, on the ground that they are time-barred. Plaintiff filed two charges with the EEOC. The EEOC issued a right to sue notice regarding the first charge on September 20, 2006. Plaintiff filed this case on May 4, 2007. Therefore, according to defendant, any allegations raised in the first charge are time-barred. Plaintiff alleges that Case 3:16-cv-01055-JMM Document 14-8 Filed 09/01/16 Page 3 of 4 Page 4 of 4 Hines v. Twp. of Harrison because he filed this case within 90 days of receiving his second right to sue letter, his claims are not time- barred. The extent to which plaintiff's claims are time- barred, some of which likely are, is dependant on the facts of the case. We cannot make such a determination on a motion to dismiss. IV. CONCLUSION For the foregoing reasons, we will dismiss [*8] plaintiff's claim for punitive damages, but deny the remainder of defendant's motion to dismiss. An appropriate order follows. ORDER AND NOW, this 28th day of September, 2007, IT IS HEREBY ORDERED that defendant's motion to dismiss [doc. no. 9] is GRANTED, in part, and DENIED, in part. Defendant's motion to dismiss the prayer for punitive damages is GRANTED. The remainder of defendant's motion to dismiss is DENIED, without prejudice to defendant's right to raise these issues in a motion for summary judgment on a fully developed record. BY THE COURT Gary L. Lancaster, J. End of Document Case 3:16-cv-01055-JMM Document 14-8 Filed 09/01/16 Page 4 of 4 No Shepard’s Signal™ As of: September 1, 2016 11:42 AM EDT Cox v. UPS United States District Court for the Middle District of Pennsylvania August 18, 2016, Decided; August 18, 2016, Filed No. 3:15cv2013 Reporter 2016 U.S. Dist. LEXIS 109688 PAUL COX, Plaintiff v. UNITED PARCEL SERVICE, INC., LOCAL UNION 401, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Defendants, Core Terms resignation, motion to dismiss, grievance, termination Counsel: [*1] For Paul Cox, Plaintiff: Jack M. Bernard, LEAD ATTORNEY, Jack M. Bernard, Attorney At Law, Philadelphia, PA. For United Parcel Service, Inc., Defendant: Gary M. Tocci, Joel S Barras, Sarah T Hansel, Valerie Eifert Brown, Reed Smith LLP, Philadelphia, PA. For Local Union 401, International Brotherhood of Teamsters, Defendant: Lars Henry Anderson, Hourigan, Kluger & Quinn, PC, Kingston, PA. Judges: JAMES M. MUNLEY, United States District Judge. Opinion by: JAMES M. MUNLEY Opinion MEMORANDUM Plaintiff Paul Cox (hereinafter "plaintiff") claims the defendants unlawfully terminated his employment in contravention of his union's Collective Bargaining Agreement (hereinafter "CBA") and Section 301 of the Labor Management Relations Act (hereinafter "LMRA"). Before the court for disposition is Defendant Local Union 401, International Brotherhood of Teamsters's (hereinafter "Union") motion to dismiss Count II- violation of the LMRA. For the reasons that follow, the court will deny the Union's motion. Background The instant employment action arises from plaintiff's employment with Defendant United Parcel Service, Inc. (hereinafter "UPS"). 1 Plaintiff worked as full-time night mechanic from approximately May 4, 2014, until June 18, 2015, when plaintiff [*2] resigned. (Doc. 1, Compl. (hereinafter "Compl.") ¶ 5). As a mechanic, plaintiff maintained and inspected UPS's equipment, including vehicles owned and rented by UPS. 2 (Id. ¶ 6). During plaintiff's employment, UPS placed inspection stickers on vehicles that were not roadworthy. (Id. ¶ 8). Plaintiff objected and insisted on compliance with safety standards and regulations. (Id. ¶¶ 9-10, 16, 28, 32). On June 18, 2015, shortly after plaintiff began his 6:00 p.m. shift, plaintiff's immediate supervisor requested plaintiff come to his office. (Id. ¶ 11). The supervisor asked if plaintiff wanted union representation at the meeting and plaintiff declined, signing a waiver of right to representation. 3 (Id. ¶¶ 11, 19). During this meeting, plaintiff's supervisor directed plaintiff to sign a resignation form or the supervisor would call [*3] the Pennsylvania State Police. (Id. ¶ 12). The supervisor also directed plaintiff to write "personal" as the reasons 1 As a Union employee, the Collective Bargaining Agreement, National Master United Parcel Service Agreement and Central Pennsylvania Supplemental Agreement governed the terms of plaintiff's employment. (Compl. ¶ 17). 2 Defendant obtained permission from the Pennsylvania Department of Transportation to inspect its own vehicles and issue inspection stickers. (Compl. ¶ 7). 3 Plaintiff alleges that his supervisor knew that no stewards were available at the time of the meeting, which occurred after 6:00 p.m. (Id. ¶ 11). Case 3:16-cv-01055-JMM Document 14-9 Filed 09/01/16 Page 1 of 3 Page 2 of 3 Cox v. UPS for his resignation. (Id.) Plaintiff signed the resignation form. (Id.) In response to his forced resignation, plaintiff filed a two- count complaint on October 16, 2015. Count I asserts a breach of contract claim pertaining to the CBA against UPS. Count II states a cause of action under the LMRA against the Union. The Union filed the instant motion pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 7, 2016, seeking Count II's dismissal. (Doc. 18). The parties have briefed the issues, bringing the case to the present procedural posture. Jurisdiction As plaintiff brings suit pursuant to Section 301 of the LMRA, we have federal question jurisdiction. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). Standard of Review The Union filed its motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of the complaint's allegations when considering a Rule 12(b)(6) motion. All well-pleaded [*4] allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, "'under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.'" Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' [each] necessary element" of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35. In evaluating the sufficiency of a complaint the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Discussion The Union moves to dismiss Count II, violation of the section 301 of the LMRA, arguing that plaintiff's allegations fail to state a claim upon which relief can be granted. Section 301 of the LMRA authorizes "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . or between any such labor [*5] organizations . . . ." 29 U.S.C. § 185(a). Here, plaintiff asserts a hybrid claim under section 301 again both UPS and the union. A "hybrid" section 301 action "is one in which a union member sues his or her employer for breaching its contractual obligations under the collective bargaining agreement and the union for breaching its duty of fair representation." Beidleman v. Stroh Brewery Co., 182 F. 3d 225, 236 (citing DelCostello v. Int'l Bhd. Of Teamsters, 462 U.S. 151, 164-65, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983)). To properly plead a claim against the union for breach of the duty of fair representation, the plaintiff must sufficiently aver that the union's conduct toward that member was "'arbitrary, discriminatory, or in bad faith.'" Masy v. N.J. Transit Rail Operations, Inc., 790 F.2d 322, 328 (3d Cir. 1986) (quoting Vaca v. Sipes, 386 U.S. 171, 190, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967)). In the instant matter, plaintiff claims the union's failure to pursue a grievance after his coerced resignation was arbitrary and in violation of the union's duty of fair representation. With respect to an alleged grievance against an employer, "'a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion.'" Riley v. Letter Carriers Local No. 380, 668 F.2d 224, 228 (3d Cir. 1981) (quoting Vaca, 386 U.S. at 191, 87 S. Ct. 903). Moreover, "[a] union's conduct can be classified as arbitrary only when it is irrational, when it is without a rational basis or explanation." Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 46, 119 S. Ct. 292, 142 L. Ed. 2d 242 (1998) (citing Air Line Pilots v. O'Neill, 499 U.S. 65, 78-81, 111 S. Ct. 1127, 113 L. Ed. 2d 51 (1991)). The plaintiff must demonstrate more than "mere ineptitude [*6] or negligence" on the part of the union, and "the fact that trained counsel would have avoided the error or pursued a different strategy is not enough." Riley, 668 F.2d at 228 (quotation marks and citations omitted). Furthermore, a union's foremost duty to advocate on behalf of its members is tempered by "an obligation . . . to act fairly under the collective bargaining Case 3:16-cv-01055-JMM Document 14-9 Filed 09/01/16 Page 2 of 3 Page 3 of 3 Cox v. UPS agreement and not to assert or press grievances which it believes in good faith do not warrant such action." Bazarte v. United Transp. Union, 429 F.2d 868, 872 (3d Cir. 1970). In the instant matter, plaintiff resigned from UPS on June 18, 2015. (Compl. ¶ 11). Plaintiff claims UPS forced him to resign because he insisted on strict compliance with safety regulations, which antagonized his supervisors and management. (Id. ¶¶ 9, 12, 16). Furthermore, UPS held his termination meeting at a time when UPS knew no union stewards were present to attend the meeting with plaintiff. (Id. ¶¶ 11-12). Moreover, the union "rubber stamped" UPS's decision to terminate plaintiff's employment. (Id. ¶ 33). Specifically, the union, acquiescing with the wishes of UPS management, failed to pursue a grievance against UPS. (Id. ¶ 31). Rather, the union merely facilitated an unproductive meeting with a senior UPS employee. (Id.) In [*7] short, the union failed to take aggressive action to prevent plaintiff's termination in contravention of section 301 of the LMRA. At this stage in the litigation, the court will allow this claim against the union to proceed. Discovery will produce a record that, when viewed in its entirety, may demonstrate whether the union used the tools at its disposal to conduct a good-faith investigation into plaintiff's termination thereby supporting the union's decision not to file a grievance or whether the union's investigation was perfunctory or a sham. Thus, the court will deny the union's motion to dismiss this claim. Conclusion For the above-stated reasons, the court will deny the union's motion to dismiss plaintiff's LMRA claim. An appropriate order follows. Date: 08/18/2016 /s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court ORDER AND NOW, to wit, this 18th day of August 2016, Defendant Local Union 401, International Brotherhood of Teamsters's motion to dismiss Count II of plaintiff's complaint (Doc. 18) is DENIED. This defendant is further ORDERED to answer plaintiff's complaint within fourteen (14) days. BY THE COURT /s/ James M. Munley JUDGE JAMES M. MUNLEY United States District Court End of Document Case 3:16-cv-01055-JMM Document 14-9 Filed 09/01/16 Page 3 of 3