Worthington v. Caesars Enterprise Services, Llc

MOTION to Dismiss for Lack of Jurisdiction Counts III & IV of the First Amended Complaint, MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Counts I, II, V, & VI of the First Amended Complaint

E.D. Pa.June 21, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DONALD WORTHINGTON, Plaintiff, v. CHESTER DOWNS AND MARINA LLC OWNER AND LICENSEE OF HARRAH’S PHILADELPHIA d/b/a/ HARRAH’S PHILADELPHIA CASINO AND RACETRACK, Defendant. : : : : : : : : : : Civil Action No. 2:17-cv-01360-MMB DEFENDANT’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendant Chester Downs and Marina LLC, Owner and Licensee of Harrah’s Philadelphia d/b/a Harrah’s Philadelphia Casino and Racetrack, moves to dismiss the First Amended Complaint filed by Plaintiff Donald Worthington, ECF No. 9, because (a) the Court does not have subject matter jurisdiction over Counts III and IV (and, in the alternative, because Counts III and IV fail to state a claim upon which relief can be granted) and (b) Plaintiff has failed to state a claim upon which relief can be granted in Counts I, II, V, and VI of the First Amended Complaint. For these reasons and as set forth in Defendant’s Memorandum of Law (herein incorporated by reference), Plaintiff’s First Amended Complaint should be dismissed in its entirety. Respectfully submitted, COZEN O’CONNOR Dated: June 21, 2017 _____________________________ By: Debra S. Friedman (PA 65511) Jason A. Cabrera (PA 315804) 1650 Market Street, Suite 2800 Philadelphia, PA 19103 Attorneys for Defendant Chester Downs and Marina LLC Owner and Licensee of Harrah’s Philadelphia d/b/a Harrah's Philadelphia Casino and Racetrack Case 2:17-cv-01360-MMB Document 10 Filed 06/21/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DONALD WORTHINGTON, Plaintiff, v. CHESTER DOWNS AND MARINA LLC OWNER AND LICENSEE OF HARRAH’S PHILADELPHIA d/b/a/ HARRAH’S PHILADELPHIA CASINO AND RACETRACK, Defendant. : : : : : : : : : : Civil Action No. 2:17-cv-01360-MMB MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT Defendant Chester Downs and Marina LLC, Owner and Licensee of Harrah’s Philadelphia d/b/a Harrah’s Philadelphia Casino and Racetrack (“Defendant” or “Harrah’s”) moves to dismiss the First Amended Complaint filed by Plaintiff Donald Worthington (“Plaintiff” or “Worthington”) because (a) the Court does not have subject matter jurisdiction over Counts III and IV (and, in the alternative, because Counts III and IV fail to state a claim upon which relief can be granted) and (b) the First Amended Complaint fails to state a claim upon which relief can be granted for Counts I, II, V, and VI. Accordingly, the First Amended Complaint should be dismissed in its entirety. I. INTRODUCTION In this case, Plaintiff alleges that he had a fight with a then-co employee at Harrah’s, got injured during that altercation, and then was fired by Harrah’s for that altercation. Despite the fact that a clear, lawful, non-discriminatory reason for his termination is alleged in the First Amended Complaint itself, Worthington nevertheless asserts six (6) causes of action against Harrah’s for the decision to fire him. Notwithstanding clear and incontrovertible law that holds this Court was without jurisdiction over two counts of Plaintiff’s original Complaint, Plaintiff re- Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 1 of 19 2 asserts those same two claims in two counts of his First Amended Complaint, and the other four counts still fail to state a claim upon which relief can be granted. Therefore, the First Amended Complaint should be dismissed in its entirety. Counts III and IV purport to state causes of action under the Pennsylvania Human Relations Act (“PHRA”), but this Court does not have jurisdiction over these claims. The PHRA vests exclusive jurisdiction in the Pennsylvania Human Relations Commission (“PHRC”) for one year after a complaint is filed. Plaintiff filed his complaint with the EEOC on December 8, 2016, and then filed his Complaint in this Court on March 27, 2017—just three (3) months into the 12- month exclusive window for consideration by the PHRC. The First Amended Complaint does not (and cannot) even attempt to contradict these facts, so instead the First Amended Complaint simply adds legal conclusions that are not relevant to this motion and do not change these clear jurisdictional facts. This Court lacks subject matter jurisdiction over Counts III and IV. Counts I and II purport to allege violations of the Americans with Disabilities Act (“ADA”), but those claims must be dismissed because Plaintiff fails to allege sufficient facts that even plausibly show he can meet the various elements required under the statutes for his claims. Count V purports to state a claim for retaliation under the Family and Medical Leave Act (“FMLA”), but this claim similarly fails. Plaintiff has failed to adequately allege that he was eligible for FMLA leave, that his leave request was FMLA-protected, or that there is any causal connection between his termination and his exercise of rights under the FMLA. Without those allegations, Plaintiff does not state a valid FMLA claim in this Court. Count VI purports to state a common law claim for wrongful discharge, but that claim fails. The First Amended Complaint still fails to offer any allegations that Plaintiff engaged in protected activity by filing a claim for worker’s compensation benefits or, even if he did, that his Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 2 of 19 3 discharge was causally connected to the pursuit or receipt of worker’s compensation benefits. For any and all of these reasons, the Court should dismiss Plaintiff’s complaint in its entirety. II. STANDARDS OF REVIEW A. Lack Of Subject Matter Jurisdiction Under Federal Rule of Civil Procedure 12(b)(1), a complaint may be dismissed in whole or in part if the court lacks subject matter jurisdiction over the claims alleged. See Fed. R. Civ. P. 12(b)(1). “A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the trial court’s subject matter jurisdiction.” Gould Elecs., Inc. v United States, 220 F.3d 169, 176 (3d Cir 2000) (citations omitted). A facial attack assumes the allegations in the pleading are true; a factual attack permits the court to “consider evidence outside the pleadings” and to weigh that evidence to determine if it has jurisdiction. Id. The plaintiff bears the burden of persuasion to convince the court that it has jurisdiction. Id. at 178 (citations omitted) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). B. Failure To State A Claim Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed if it fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). An assertion that a complaint fails to state a claim upon which relief can be granted requires a court to examine whether the plaintiff stated enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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. Plaintiff’s obligation to provide the grounds for his entitlement to relief Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 3 of 19 4 “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Conclusory allegations are “not entitled to be assumed true.” Iqbal, 556 U.S. at 681 (citing Twombly, 550 U.S. at 554-55). A complaint will not suffice if it offers “‘naked assertions’ devoid of ‘further factual enhancements.’” Id. at 678 (quoting Twombly, 550 U.S. at 557). The Third Circuit uses a three-step process to evaluate motions to dismiss. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Based on the Iqbal and Twombly cases, a court should: (1) identify the elements of the claim, (2) review the complaint to strike conclusory allegations, and then (3) look at the well-pleaded components of the complaint and evaluate whether all of the elements identified in part one of the inquiry are sufficiently alleged.” Id. III. ARGUMENT A. Federal District Courts Lack Subject Matter Jurisdiction Over PHRA Claims If Plaintiff Files The Operative Complaint Before The Expiration Of The One-Year Mandatory Investigatory Period The PHRA prohibits a complainant from filing a court action that relates to the alleged discrimination until one (1) year has passed from the date the charge was filed with the PHRC. 43 Pa. Stat. Ann. § 962(c). The purpose of this requirement is to permit the PHRC to investigate the complaint and to attempt a reconciliation. Rosetsky v. Nat’l Bd. of Med. Exam’rs. of the U.S. of Am., Inc., 350 F. App’x 698, 703 (3d Cir. 2009) (citation omitted). PHRC jurisdiction during the one-year period after the filing of a complaint is “exclusive.” Burgh v. Borough Council of Montrose, 251 F.3d 465, 471 (3d Cir. 2001) (citing Clay v. Advanced Computer Applications, Inc., 522 Pa. 86 (1989)). If a plaintiff files an action in court alleging a violation of the PHRA prior to the expiration of the mandatory one-year period, then that plaintiff “failed to comply with 43 P.S. § 962(c)” and the district court does “not have Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 4 of 19 5 subject matter jurisdiction over the PHRA claim.” Rosetsky, 350 F. App’x at 703; see also, e.g., Mikulski v. Bucks Cnty. Cmty. Coll., 2011 WL 1584081 at *6 (E.D. Pa. Apr. 27, 2011) (Baylson, J.) (“Because the evidence demonstrates that Plaintiff filed her Complaint in federal court before the mandatory one-year waiting period expired, Plaintiff's claims under the PHRA will be dismissed for lack of subject matter jurisdiction.”). The well-pleaded allegations in Plaintiff’s First Amended Complaint confirm that this Court lacks jurisdiction over the PHRA claims. Other than a conclusory, unsupported allegation that Plaintiff “has satisfied all jurisdictional prerequisites” for this suit, First Amended Complaint, ECF No. 9 (“FAC”) at ¶ 5, Plaintiff’s First Amended Complaint adds one new allegation to make clear that Plaintiff first filed his charge of discrimination with the U.S. Equal Employment Opportunity Commission on December 8, 2016. First Amended Complaint (“FAC”) at ¶ 6. Assuming arguendo that Plaintiff’s administrative complaint was actually and properly cross-filed with the PHRC on the same date he filed it with the EEOC, then—by operation of law—the PHRC has exclusive jurisdiction over any PHRA claims until December 9, 2017. See, e.g., 43 Pa. Stat. Ann. § 962(c); Rosetsky, 350 F. App’x at 703. The docket reveals that Plaintiff filed the instant action in this Court on March 27, 2017, Complaint, ECF No. 1, at 1, and filed an amended complaint on June 7, 2017. Counts III and IV of the operative complaint purport to state causes of action under the PHRA. FAC at ¶¶ 33-40. As Plaintiff filed this action before the expiration of the mandatory one-year investigation period, Plaintiff failed to comply with PHRA administrative requirements and this Court lacks subject matter jurisdiction over Counts III and IV. Plaintiff attempts to avoid these statutory realities by alleging that “the PHRC accepted the EEOC’s findings” when the EEOC dismissed his charge, FAC at ¶ 6, but this is a mere legal conclusion and, in any event, it is wholly unsupported and Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 5 of 19 6 contrary to existing law. The PHRC has a statutory and regulatory process for it to dismiss complaints, see 43 P.S. § 959(c); 16 Pa. Code § 42.61(c) (requiring both parties to be notified in writing of a dismissal of a complaint), and Plaintiff does not allege that process was completed. (Nor can he.) Therefore, his administrative complaint is still pending before the PHRC and this Court lacks subject matter jurisdiction over Counts III and IV. Those claims must be dismissed. B. Plaintiff’s First Amended Complaint Fails To Allege Sufficient Facts To Plausibly State A Claim Upon Which Relief Can Be Granted In Any Count. 1. Plaintiff fails to allege sufficient facts to state a plausible ADA violation. Plaintiff’s First Amended Complaint fails to provide sufficient facts to state a plausible claim for relief under the ADA, 42 U.S.C. § 12101 et seq., under either a discrimination theory (discharge or failure to accommodate) or a retaliation theory. An ADA discrimination claim requires a plaintiff to plead sufficiently that: (1) he is disabled within the meaning of the ADA, (2) that he is otherwise qualified for the job, with or without reasonable accommodation; and (3) that he was subjected to an adverse employment action as a result of his disability. Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010) (citation omitted) (applying pre-ADAAA law). Although Plaintiff’s termination from employment was an adverse action, Plaintiff has failed to plead sufficiently that he is disabled within the meaning of the ADA or that Harrah’s failed to accommodate him. Nor has Plaintiff alleged enough facts to state a claim for ADA retaliation, which requires a request for an accommodation and a causal link between the request and the adverse action. Therefore, Count I (alleging ADA discrimination) and Count II (alleging ADA retaliation) should be dismissed. a) Plaintiff has not properly pleaded that he is actually disabled. Plaintiff has not pleaded factual allegations to plausibly suggest he is disabled as defined by the ADA. Without those facts, he cannot state a claim for ADA discrimination. Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 6 of 19 7 Under the ADA, a disability is defined as either (1) a physical or mental impairment that substantially limits a major life activity, (2) a record of such an impairment, or (3) being regarded as having such an impairment. 42 U.S.C. §12102(1). To satisfy the first or second prongs of the disability definition, a plaintiff must plead sufficient facts that plausibly identify an impairment and enough facts to plausibly suggest that the impairment causes a substantial limitation in a major life activity. See, e.g., Williams v. Temple Univ. Hosp., 400 F. App’x 650, 652-53 (3d Cir. 2010) (finding plaintiff failed to identify an impairment, allege a limitation, or otherwise indicate how she might be substantially limited in a major life activity). In Williams, the court found that the plaintiff failed to allege sufficient facts to give rise to a plausible claim for relief because she did not plausibly identify an impairment, failed to allege a limitation, and failed to otherwise indicate how she might be substantially limited in any major life activity. 400 F. App’x at 652-53. In Popko v. Pa. St. Milton S. Hershey Med. Ctr., 2015 WL 4950672 (M.D. Pa. Aug. 19, 2015), the court found the plaintiff alleged only a general anxiety condition and that he failed to “adequately allege facts in support of his assertion that he is accordingly substantially limited in performing the major life activities of ‘eating and sleeping ... interacting with others, thinking, concentrating, and judgment.’” Id. at *3. In contrast to those cases, the plaintiff in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), pleaded enough facts to show an impairment, alleged that the impairment was a disability under the applicable statute, alleged a limitation (i.e. that she was limited to sedentary work), and the alleged limitation plausibly suggested a substantial limitation in a major life activity. 578 F.3d at 213. Here, Plaintiff has only one well-pleaded factual allegation related to his alleged disability: that he was diagnosed with brachial plexus injury and shoulder strain. Complaint at ¶ 17. What follows that well-pleaded allegation is a conclusory allegation that such a diagnosis Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 7 of 19 8 “constitutes disabilities within the meaning” of the ADA and PHRA “in that they substantially impair one or more of Plaintiff Worthington’s major life activities, including but not limited to, lifting and grasping, as said conditions cause limited range of motion, numbness in the arms and hands, and diminished hand strength.” Id. But Plaintiff’s conclusory allegation is not entitled to the presumption of truth, and he has not alleged any well-pleaded facts that show (or could plausibly show) that the alleged diagnosis actually limited him or constituted a “substantial limitation” in a “major life activity.” Plaintiff’s mere invocation of ADA “labels and conclusions” and his “formulaic recitation” of the definition of disability simply will not do. See Twombly, 550 U.S. at 555. And his recital of what “said conditions” may “cause” notably omits any allegation that Plaintiff himself actually experienced any “limited range of motion, numbness…and diminished hand strength.” Although the test to plead a disability is not onerous, Plaintiff’s pleading fails this minimal test. He fails to include any well-pleaded factual allegations regarding his alleged impairment or any limitations actually caused by the impairment, and therefore fails to properly plead that he has an actual disability under the ADA. b) Plaintiff has not properly pleaded a record of a disability. To sufficiently plead that Plaintiff has a record of a disability, Worthington must plead facts which plausibly show he has a history of the impairment or he was misclassified as having suffered the impairment, and that the employer relied upon the record of impairment in making its employment decision. See 29 C.F.R. § 1630.2(k)(1); Eshelman v. Agere Sys., Inc., 554 F.3d 426, 437 (3d Cir. 2009) (citations omitted). Worthington has not made any allegations to plausibly support the conclusions that (1) he has a record of a disability within the meaning of the law and (2) that Harrah’s relied upon said record in making its employment decision. Consequently, he has not properly pleaded that he has a record of disability. Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 8 of 19 9 c) Plaintiff has not properly pleaded that he is regarded as disabled. To sufficiently plead the third prong of the definition of disability (“regarded as”), a plaintiff must allege that the employer believed he was substantially limited in at least one major life activity, even if he was in fact not so limited. See Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012) (plaintiff must allege “that the employer believed that a wholly unimpaired plaintiff had an impairment that substantially limited at least one major life activity or that the employer believed an employee’s actual impairment to limit major life activities when it in fact did not.”); see also O’Donnell v. Colonial Intermediate Unit 20, 2013 WL 1234813 at *7 (E.D. Pa. Mar. 27, 2013) (Jones, II, J.) (“even under the ‘regarded as disabled’ rubric, a plaintiff is still required to plead the existence of a substantial limitation on a major life activity, either because the employer mistakenly believed he had a non-existent impairment that caused one, or…the employer believed an actual impairment caused one, when it in fact did not.”). Plaintiff’s factual allegations do not plausibly suggest he was “regarded as” disabled under the statute. Plaintiff fails to include any factual allegations in support of his legal conclusions that he was subjected to discrimination “on this basis of his actual and/or perceived disabilities and/or record of impairment.” FAC at ¶ 24. Nor does he include any well-pleaded factual allegations regarding Harrah’s thoughts on or reaction to his alleged “disability.” Furthermore, mere knowledge of an impairment is insufficient as a matter of law to suggest that an employer regarded an employee as disabled. Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996) (mere fact an employer “is aware of an employee’s impairment is insufficient” to show that the employer regarded the employee as disabled or that its perception caused an adverse employment action). Under any of the three definitions of disability, the First Amended Complaint wholly fails to allege (or plausibly suggest) that Plaintiff was “disabled” within the meaning of the ADA. Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 9 of 19 10 d) Plaintiff has not properly pleaded a failure to accommodate. Plaintiff has failed to adequately plead a failure-to-accommodate claim and, to the extent he asserts that his ADA discrimination claim rests on a failure to accommodate, see FAC at ¶ 24, that portion of the First Amended Complaint must be dismissed.1 To state a claim under the ADA for failure to accommodate, a plaintiff must plausibly allege sufficient facts to show that “(1) he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have been reasonably accommodated.” Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 246 (3d Cir. 2006) (applying New Jersey law that is interpreted in accord with the ADA). Here, Plaintiff has not pleaded any allegations to plausibly show any of the required elements for a failure-to-accommodate claim. First, the FAC does not allege that he requested an accommodation or assistance. None of the common accommodation requests (such as temporary assignment to a different position or reduced hours or assistance with performing certain duties) are alleged. The only possible basis in the FAC on which to infer that a request for a reasonable accommodation was made is where Plaintiff alleges that he “requested a six (6) month medical leave of absence pursuant to the FMLA as a reasonable accommodation for his disabilities.” FAC at ¶ 22.2 But here, too, the FAC is insufficient. 1 Plaintiff includes both a failure to accommodate claim and a claim based on termination, but a person is not entitled to a reasonable accommodation if he is only “regarded as” being disabled. 42 U.S.C. § 12201(h). 2 Although Defendant quotes the First Amended Complaint as the operative text for this motion, Defendant notes that the initial complaint Worthington filed in this Court alleges only that he sought a “brief” medical leave of absence. See ECF No. 1 at ¶ 20. Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 10 of 19 11 The FAC fails to allege the exact request made, to whom it was made, and whether the person to whom the FMLA leave request was made (someone in Harrah’s HR department, FAC at ¶ 22) was aware of the underlying incident or Plaintiff’s existing medical diagnosis (whom he alleges he told only to three individuals, FAC at ¶ 19). In addition, a mere request for FMLA is not axiomatically a request for a reasonable accommodation under the ADA. See Capps v. Mondelez Global LLC, 847 F.3d 144 (3d Cir. 2017) (holding that a request for FMLA leave “may qualify, under certain circumstances, as a request for a reasonable accommodation under the ADA”) (emphasis added). The FAC has no well-pleaded factual allegations to suggest that Plaintiff’s mere request for FMLA leave was a request for a reasonable accommodation in the circumstances of this case.3 Setting aside the question of whether a mere request for FMLA leave can constitute a request for a reasonable accommodation under the ADA, the very next sentence of the First Amended Complaint’s allegation on this point is that “Defendant deemed Plaintiff Worthington eligible for FMLA leave and approved said request.” FAC at ¶ 22. Plaintiff therefore admits that his “request” for a reasonable accommodation was granted. The operative complaint does not and cannot plausibly allege facts to show that Harrah’s failed to make a “good faith effort to assist” when it also alleges that Harrah’s granted the only “accommodation” Plaintiff requested. 3 Prior to the Capps decision, several judges of this Court have held that a request for leave under the FMLA cannot serve as a request for a reasonable accommodation under the ADA. Rutt v. City of Philadelphia, 2014 WL 5390428 (E.D. Pa. Oct. 22, 2014) (Stengel, J.) (“Contrary to Ms. Rutt’s contentions, FMLA leave is not a reasonable accommodation. Furthermore, a request for FMLA leave is not alternatively a request for a reasonable accommodation.”); Capps v. Mondelez Global LLC, 147 F. Supp. 3d 327 (E.D. Pa. 2015) (Pappert, J.) (“Capps cannot proceed on an ADA accommodation claim under a theory that he requested an accommodation through his FMLA leave.”), aff’d, 847 F.3d 144 (3d Cir. 2017). In Capps, the Third Circuit did not expand on what it meant when it qualified its statement that an FMLA leave request “may qualify” under “certain circumstances,” as a request for a reasonable accommodation, leaving the question still open for the district courts. Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 11 of 19 12 The FAC fails to allege or plausibly suggest that Plaintiff was disabled within the meaning of the ADA or that Harrah’s failed to accommodate him; Count I should be dismissed. e) Plaintiff has not properly pleaded an ADA retaliation claim. Plaintiff has not pleaded factual allegations to plausibly suggest he was retaliated against under the ADA and, therefore, Count II must be dismissed. To state a claim under the ADA for retaliation, a plaintiff must plead sufficient facts that plausibly show: (1) that he engaged in protected employee activity; (2) that he was subjected to adverse action by the employer after or contemporaneous with the protected activity; and (3) a causal connection between the protected activity and the adverse action. Henderson v. Edens Corp., 2015 WL 4977189 at *9 (E.D. Pa. Aug. 20, 2015) (Baylson, J.) (citing Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000)). Here, Plaintiff has not pleaded any allegations to plausibly show any of the required elements for an ADA retaliation claim. Plaintiff’s First Amended Complaint is deficient here in two places. As discussed above, Plaintiff has not alleged that he engaged in protected employee activity because he has not adequately alleged that he requested a reasonable accommodation. Without a well-pleaded factual allegation of protected activity, there can be no retaliation claim. Even if the Court were to consider Plaintiff’s request for FMLA leave as a request for a reasonable accommodation under the ADA (and, thus, protected activity), he has failed to allege any facts that show (or could even plausibly suggest) that there was a causal connection between any protected activity and the adverse action. Plaintiff alleges only that (1) Harrah’s reason for termination was the June 12, 2016 fight between himself and another employee and (2) that Plaintiff “believes and avers” that the reason for his termination was actually based on “his actual and/or perceived disabilities and/or record of impairment… and/or in retaliation for Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 12 of 19 13 requesting a reasonable accommodation for his disabilities.” FAC at ¶ 23, 24. The latter allegation is vague and conclusory—the sort of allegation that is disregarded when evaluating a motion to dismiss. Reviewing only the well-pleaded facts alleged in the FAC fail to reveal or suggest any causal connection between his termination and any alleged protected activity. Any attempt by Plaintiff to rely on temporal proximity to suggest a causal connection should fail. Temporal proximity between protected activity and an adverse action can be sufficient to suggest a causal link but only if it is “unduly suggestive.” E.g., Henderson v. Edens Corp., 2015 WL 4977189 at *9 (E.D. Pa. Aug. 20, 2015) (citations omitted). Although there is no precise cutoff in case law for what is or is not unduly suggestive, see id., the First Amended Complaint here fails to show or plausibly allege timing that is “unduly suggestive.” Nearly a full month passed between the incident and Plaintiff’s request for FMLA leave and his termination. In addition, there are no other allegations that suggest the request for FMLA leave had any connection to the termination decision (e.g., negative comments from decisionmakers, a culture against FMLA leave requests, a pattern of antagonism to FMLA leave requests or to Plaintiff personally). Given the lack of any allegations that plausibly show a causal connection between any alleged protected activity and the termination decision, Count II must be dismissed. 2. Counts III and IV fail to state claims on which relief can be granted. Although this Court lacks subject matter jurisdiction over the PHRA claims in Counts III and IV, see supra, those counts also fail to state claims upon which relief can be granted under Rule 12(b)(6) for the same reasons that the ADA counts fail, and Defendant argues in the alternative to dismiss Counts III and IV on that basis as well if the Court finds it has jurisdiction. Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 13 of 19 14 3. Count V fails to plausibly state a claim for FMLA retaliation. Plaintiff’s First Amended Complaint fails to provide a sufficient factual basis to state a plausible claim for interference or retaliation under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq. Generally, the FMLA provides eligible employees with the right to take up to 12 work- weeks of leave during a 12-month period for “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612 (a)(1)(C). To be an “eligible employee” under the FMLA, an employee must have at least 1,250 hours of service with his employer during the previous 12-month period. 29 U.S.C. § 2611(2)(A). To have a “serious health condition” is to have an injury or impairment that requires “inpatient care is a hospital, hospice, or residential medical care facility; or continuing treatment by a health care provider.” 29 U.S.C. § 2611(11); see also 29 C.F.R. § 825.115 (further defining continuing treatment to provide, inter alia, in-person visits to a health care provider for “treatment two or more times” or a “regimen of continuing treatment”). To properly plead a FMLA retaliation claim, a plaintiff must provide sufficient factual allegations to plausibly show that he was, inter alia, an eligible employee as defined by the FMLA at the time the employee exercised his/her FMLA rights or attempted to exercise his/her FMLA rights, that he invoked his right to FMLA-qualifying leave, suffered an adverse employment decision, and the adverse action was causally related to his invocation of rights. See Ross v. Gilhuly, 755 F.3d 185, 191-93 (3d Cir. 2014) (quotation marks and citation omitted); Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012) (requiring plaintiff to “invoke [] her right” to FMLA leave as first element of FMLA retaliation). To properly plead an FMLA interference claim, a plaintiff must provide sufficient factual Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 14 of 19 15 allegations to plausibly show that he was, inter alia, an eligible employee as defined by the FMLA at the time the employee exercised his/her FMLA rights or attempted to exercise his/her FMLA rights; that he was entitled to take FMLA leave; and that the employer denied him benefits to which he was entitled under the FMLA. See Ross, 755 F.3d at 191-92; Lichtenstein, 691 F.3d at 312. Plaintiff’s First Amended Complaint here fails on multiple respects. First, he does not allege sufficient facts to show (or even plausibly suggest) that his request was an “FMLA- qualifying” leave—that is, that he has a serious health condition that makes the employee unable to perform the functions of the position of such employee. The only well-pleaded factual allegation in support of this claim would be that the “emergency room physician referred Plaintiff Worthington to a physical therapist and orthopedist for further evaluation.” FAC at ¶ 18. But this is insufficient; continuing treatment requires actual “treatment,” not a mere evaluation, and there is no allegation that Worthington actually got such treatment or that he got it within the timelines required by the law. Simply stating that further evaluation was recommended does not qualify a person as having a “serious health condition” as defined by the FMLA. Both Worthington’s interference and retaliation claims fail on this ground alone. Even if one were to assume the first two elements were properly alleged, the First Amended Complaint does not allege any facts to show or plausibly suggest that the termination was causally related to his invocation of rights under the FMLA. Once again, Plaintiff alleges only that (1) Harrah’s reason for termination was the June 12, 2016 fight between himself and another employee and (2) that Plaintiff “believes and avers” that the reason for his termination was actually based on “his actual and/or perceived disabilities and/or record of impairment… and/or in retaliation for requesting a reasonable accommodation for his disabilities and/or Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 15 of 19 16 exercising his rights pursuant to the FMLA….” FAC at ¶ 24. That allegation is vague and conclusory and precisely the sort of allegation that is disregarded when evaluating a motion to dismiss. A search of the First Amended Complaint’s allegations on this question reveal nothing other than that Harrah’s approval of an FMLA leave request. FAC at ¶ 22. For example, there are no allegations that Harrah’s attempted to discourage the invocation of FMLA leave or even that supervisors were frustrated at Plaintiff’s taking of FMLA leave. See generally id. Based on the lack of well-pleaded allegations showing that Plaintiff’s leave request was for a “serious health condition” required to qualify as FMLA-leave, the First Amended Complaint fails to state a claim for an FMLA violation (either interference or retaliation). In addition, the complete lack of any allegations suggesting a causal connection between the request and approval for FMLA leave and the termination decision leave the operative complaint without a claim for FMLA retaliation. Accordingly, Count V should be dismissed. 4. Count VI fails to plausibly state a claim for wrongful discharge. Plaintiff’s First Amended Complaint fails to provide a sufficient factual basis to state a plausible claim for relief for wrongful discharge under Pennsylvania common law. A plaintiff may have a viable claim of wrongful discharge under Pennsylvania common law if the plaintiff can establish that he/she was terminated in retaliation for pursuing or receiving worker’s compensation benefits. Shick v. Shirely, 552 Pa. 590 (1998). The First Amended Complaint in this case falls short. The Third Circuit has analogized the elements of a wrongful discharge cause of action under Pennsylvania common law “to a retaliatory discharge claim under Title VII.” Dunsmuir v. May Dep’t Stores Co., 120 F. App’x 927, 929 (3d Cir. 2005). To establish a claim for wrongful discharge under that test, a plaintiff must plead sufficient factual allegations to plausibly show Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 16 of 19 17 that: (1) he engaged in protected activity; (2) he suffered an adverse employment action at or after the time of the protected activity; and (3) there is a causal connection between his protected activity and the adverse action. Id. In evaluating a claim for wrongful discharge based on retaliation for pursuing worker’s compensation benefits under Pennsylvania law, the Third Circuit (applying Title VII principles) noted that a plaintiff can show causation by timing (in certain narrow circumstances); by a pattern of animus between the protected activity and the adverse action; or by circumstantial evidence concerning the employer’s motivation. Theriault v. Dollar Gen., 336 F. App’x 172, 175 (3d Cir. 2009). In Waiters v. Aviles, 418 F. App’x 68 (3d Cir. 2011), the Third Circuit upheld the district court’s grant of a motion to dismiss a Title VII retaliation claim because the plaintiff “failed to allege any facts or circumstances--beyond her bare assertions--that the defendants’ conduct was motivated by discriminatory animus.” Id. at 71. Here, Plaintiff’s First Amended Complaint is again deficient in multiple respects. First, he does not allege that he filed a claim for worker’s compensation benefits—either with the state or with his employer. The most that the First Amended Complaint alleges is that he allegedly “informed [three Harrah’s employees: a labor relations manager, an assistant shift manager, and a risk manager] that he had notified hospital personnel that his injury was work related and expressed his intent to file a claim for worker’s compensation benefits.” FAC at ¶ 20. Notably absent from this allegation is any suggestion or inference that Plaintiff actually did file for any benefits—that is, that he engaged in protected activity. Second, assuming arguendo that the vague “expression of intent to file a claim” for worker’s compensation benefits was protected activity, Plaintiff failed to include any factual allegations that could plausibly suggest a causal connection between that protected activity and any adverse action. Here, Plaintiff “fails to allege any facts or circumstances” beyond the bare Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 17 of 19 18 assertion in paragraph 24 of the operative complaint that “Plaintiff Worthington believes and avers that Defendant’s articulated reason for his termination s pretextual and he was actually terminated based on… expressing his intent to file a claim for worker’s compensation benefits.” There are no allegations that suggest a pattern of animus between when the “expression of intent” was made and the termination; nor was there any allegations regarding the employer’s motivation. Even the timing aspect—where nearly a month passed between the “expression of intent” date and the termination—does not unduly suggest that Plaintiff was terminated because he expressed an intent to file a worker’s compensation claim. In short, the First Amended Complaint fails to allege any facts to support a reasonable inference that there was a nexus between the termination and Plaintiff’s vaguely alleged “expression of intent to file a claim” for worker’s compensation benefits. Absent any alleged facts that show or plausibly suggest that Plaintiff actually did file a claim or engage in protected activity or that show or plausibly suggest an inference of retaliation on the vague basis of his “expression of intent to file a claim” for worker compensation benefits, Plaintiff’s wrongful discharge claim is insufficiently pled and Count VI should be dismissed. IV. CONCLUSION For all the reasons set forth herein, the Court should dismiss Counts III and IV of the First Amended Complaint for lack of subject matter jurisdiction, or in the alternative for failure to state a claim, and should dismiss Counts I, II, V, and VI of the First Amended Complaint for failure to state a claim upon which relief can be granted. Respectfully submitted, COZEN O’CONNOR Dated: June 21, 2017 _____________________________ By: Debra S. Friedman (PA 65511) Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 18 of 19 19 Jason A. Cabrera (PA 315804) 1650 Market Street, Suite 2800 Philadelphia, PA 19103 P: 215-665-3719 Attorneys for Defendant Chester Downs and Marina LLC d/b/a Harrah's Philadelphia Casino and Racetrack Case 2:17-cv-01360-MMB Document 10-1 Filed 06/21/17 Page 19 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DONALD WORTHINGTON, Plaintiff, v. CHESTER DOWNS AND MARINA LLC OWNER AND LICENSEE OF HARRAH’S PHILADELPHIA d/b/a/ HARRAH’S PHILADELPHIA CASINO AND RACETRACK, Defendant. : : : : : : : : : : Civil Action No. 2:17-cv-01360-MMB ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Upon consideration of Defendant’s Motion to Dismiss the First Amended Complaint, ECF No. ____, and any opposition and reply thereto, and for good cause appearing, it is hereby ORDERED that the Motion is GRANTED. Counts III and IV of the First Amended Complaint are DISMISSED for lack of subject matter jurisdiction. Counts I, II, V, and VI of the First Amended Complaint are DISMISSED for failure to state a claim upon which relief can be granted. Dated: ______________ ______________________________ Michael M. Baylson United States Senior District Judge Case 2:17-cv-01360-MMB Document 10-2 Filed 06/21/17 Page 1 of 1 CERTIFICATE OF SERVICE I, Debra S. Friedman, hereby certify that on this 21st day of June, 2017, I caused to be served a copy of the following: (1) Defendant’s Motion to Dismiss the First Amended Complaint; (2) Memorandum of Law In Support of Defendant’s Motion to Dismiss the First Amended Complaint, and (3) a proposed order on Defendant’s Motion to Dismiss the First Amended Complaint, through the Court’s electronic filing system on: Sidney Gold Jamie L. Ford Sidney L. Gold & Assocs, P.C. 1835 Market Street, Suite 515 Philadelphia, PA 19103 Attorneys for Plaintiff Donald Worthington ___________________________ DEBRA S. FRIEDMAN Case 2:17-cv-01360-MMB Document 10-3 Filed 06/21/17 Page 1 of 1