Drummer v. Trs. of the Univ. of Pa.
Drummer v. Trs. of the Univ. of Pa.
Opinion of the Court
Plaintiff, Lee J. Drummer, brought this suit against his former employer, Defendant Hospital of the University of Pennsylvania, alleging age, sex, race, and disability discrimination and retaliation, and violation of the Family and Medical Leave Act ("FMLA"). Defendant has moved to dismiss his Amended Complaint on the grounds that certain claims are time barred and all claims are insufficiently alleged. For the reasons discussed below, Defendant's motion will be granted in part and denied in part, and Plaintiff will be granted leave to file a second amended complaint.
I. BACKGROUND
The following facts alleged in the Amended Complaint are assumed to be true, unless otherwise stated, for purposes of the Motion to Dismiss.
Plaintiff is a 56-year-old African-American man who was employed by Defendant in 2014 and 2015, when the alleged events at issue took place.
In June of 2014, Plaintiff learned that two other secretaries, who were both African-American women, were paid approximately $1.40 more per hour than he was.
Plaintiff believed the PIP was a "general form of harassment," and he said so to Defendant's human resources department sometime in March 2015.
At some point during this time, Plaintiff applied for a "leave of absence" but was denied.
Although Plaintiff states that his request for leave was denied, it appears he did take time off from work, as he alleges that he received a correspondence from Defendant in early June 2015, "indicating that if he did not respond by June 8, 2015, he would be terminated."
On March 10, 2016, Defendant filed a Charge of Discrimination with the EEOC and with the Pennsylvania Human Relations Commission alleging discrimination *679based on age, race, sex, and disability, and unlawful retaliation.
After counsel was appointed, Plaintiff filed the Amended Complaint (Doc. No. 26). Counts I, II, and IV of the Amended Complaint allege discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964, and
Defendant now moves to dismiss all claims.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" lacks enough substance to show that he is entitled to relief.
III. DISCUSSION
A. Timeliness
Defendant asserts that Plaintiff's claims pursuant to the ADEA, Title VII, and the ADA are untimely to the extent they rely on alleged adverse employment actions that took place more than 300 days before the EEOC charge was filed on March 10, 2016. Specifically, Defendant asserts that any claims based on unequal wages received by Plaintiff prior to May 2015 or his placement on a PIP between March 2014 and March 2015 are untimely.
A plaintiff bringing a claim under the ADEA, Title VII, or the ADA must file a Charge of Discrimination with the *680EEOC within 300 days of an alleged unlawful employment practice in order to later challenge those practices in court.
There are three adverse employment actions alleged on the face of the Amended Complaint: 1) a wage disparity between Plaintiff and other employees, 2) Plaintiff's placement on a PIP, and 3) Plaintiff's termination.
The Court also declines to hold at this stage of the proceedings that Plaintiff's unequal pay claims under Title VII and the ADA are untimely. Pursuant to the Lilly Ledbetter Fair Pay Act of 2009, an unlawful employment practice with respect to discrimination in compensation "occurs...when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid," and a plaintiff may recover back pay for up to two years preceding the filing of the charge.
In contrast, to the extent Plaintiff asserts that his placement on the PIP is *681independently actionable under the ADA or Title VII, that claim is untimely because the PIP lasted only until March 2015. Contrary to Plaintiff's contention, the PIP does not fall within the "continuing violations" doctrine because he was "aware of, and had complained about, the alleged hostile treatment" prior to the statutory period, when he told Defendant's human resources department that his placement on PIP was a form of "harassment."
Accordingly, the Court will dismiss Counts II and III as untimely with respect to any claim based on Plaintiff's placement on the PIP as an independent adverse employment action. This, however, does not preclude Plaintiff from relying on his allegations concerning his placement on the PIP for purposes of his § 1981 claim race discrimination claim or to support an inference of discriminatory intent with respect to his Title VII, ADEA, and ADA claims.
B. Failure to State a Claim
1. Age, Sex, and Race Discrimination
Where, as here, a plaintiff has not alleged direct evidence of purposeful discrimination and relies on indirect evidence to allege age, sex, or race discrimination in violation of Title VII, the ADEA, or § 1981, the complaint must first allege facts that, if true, would establish the following elements: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position he held; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that could give rise to an inference of intentional discrimination.
Defendant contends that Plaintiff has failed to allege facts that would give rise to an inference of intentional discrimination with respect to his pay, his placement on a PIP, or his termination.
With respect to alleged discrimination in pay, which Plaintiff only asserts in support of his race and sex discrimination claims, he relies on his allegations that other secretaries, who were not African-American, were paid more than he was, and that two female secretaries were paid approximately $1.40 more per hour than he was. At this stage of the proceedings, these allegations that other employees outside of his *682protected class, who had the same job title in the same hospital, were paid more than Plaintiff are sufficient to support an inference of sex and race discrimination with respect to his compensation.
However, Plaintiff has failed to allege sufficient facts to state a claim of age, sex, or race discrimination based on his placement on a PIP or his termination. Plaintiff asserts that his termination and placement on PIP were pretextual. But he does not allege any facts to support his general claim that he was placed on a PIP or terminated because of his age, sex, or race rather than problems with his performance. Specifically, Plaintiff does not allege facts that would suggest he met Defendant's performance standards or that the PIP was otherwise unwarranted.
2. Disability Discrimination and Retaliation
To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show that he is (1) disabled within the meaning of the ADA, (2) can perform essential functions of his job with or without reasonable accommodation, and (3) suffered an adverse employment action as a result of discrimination based on his disability.
*683With respect to Plaintiff's ability to perform the functions of his job, Plaintiff has not clearly alleged the requirements of his position, the nature of his disability, or that he was otherwise qualified for his position despite his disability. Contrary to Plaintiff's contention,
Moreover, Plaintiff has not alleged sufficient facts to suggest a causal nexus between his disability and his termination. The only facts alleged by Plaintiff to support an inference of discrimination in his termination are 1) that Defendant's human resources department suggested that Plaintiff take a leave of absence because of "personal issues", and 2) that Defendant was aware of his disability by virtue of his interactions with the human resources department and the Employee Assistance program. But mere awareness of a disability does not create an inference of discrimination;
Similarly, Plaintiff's allegations do not state a claim for disability retaliation. To make out a retaliation claim, the employee must allege: (1) he engaged in protected employee activity; (2) he suffered an adverse employment action; and (3) the adverse action was causally related to the protected activity.
*684Plaintiff has not alleged that either his EEOC charge or his complaint to human resources concerned a disability, and accordingly, he has not adequately pleaded that these activities were protected under the ADA.
With respect to his request for assistance from the EAP and his applications for leave, which may arguably constitute protected activities at this stage of the proceedings, Defendant has failed to plead facts that suggest a causal link between these activities and his subsequent termination. In assessing whether a complaint has adequately pleaded causation, courts have typically looked to evidence of temporal proximity between the protected activity or a pattern of antagonism by the employer in response the protected activity.
Accordingly, Plaintiff's ADA claims will be dismissed without prejudice.
3. FMLA Violations
The FMLA requires employers to provide unpaid leave to employees because of a serious health condition that makes the employee unable to perform the functions of his position, or to care for a close family member with a serious health condition, and to reinstate the employee to his former position, or an equivalent one, upon return from leave.
Here, Defendant contends that Plaintiff was not "denied" FMLA benefits because notwithstanding his allegation that his request for FMLA leave was denied, the Amended Complaint as a whole indicates that he took leave at some point after March 2015 and did not "return to work" until June 10, 2015. However, even if Plaintiff was granted FMLA leave, Defendant's failure to reinstate Plaintiff to the same or an equivalent position once he returned from leave can constitute the basis for an FMLA interference claim when all other elements are satisfied. Here, because Defendant has not challenged any other elements of Plaintiff's claim, Defendant's Motion to Dismiss is denied with respect to Plaintiff's FMLA interference claim.
Similarly, Plaintiff's allegation that he was terminated immediately after returning from leave (which Defendant contends has been pleaded as FMLA leave) is sufficient at this stage to state a claim for FMLA retaliation.
*685C. Amendment
In civil rights cases, "district courts must offer amendment-irrespective of whether it was requested-when dismissing a case for failure to state a claim unless doing so would be inequitable or futile."
An order follows.
Am. Compl. ¶¶ 20-21.
Bell Atl. Corp. v. Twombly ,
ALA, Inc. v. CCAIR, Inc. ,
Twombly ,
Pension Ben. Guar. Corp. v. White Consol. Indus., Inc. ,
Bethel v. Jendoco Constr. Corp. ,
Spence v. Straw ,
See, e.g., Lucas v. City of Philadelphia , No. 11-4376,
An adverse employment action under Title VII, the ADA, and the ADEA, is "an action by an employer that is 'serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.' " LeBlanc v. Hill Sch. , No. 14-1674,
Am. Compl. ¶ 51.
42 U.S.C.A. § 2000e-5 (West) ; see also, e.g. , Schengrund v. Pennsylvania State Univ. ,
Bethel v. Jendoco Const. Corp. ,
Fusco v. Bucks Cnty. of Pa., 08-cv-2082,
Cowell v. Palmer Twp. ,
McDonnell Douglas Corp. v. Green ,
Greene v. Virgin Islands Water & Power Authority ,
The Court notes that Plaintiff's original complaint, which attached what appears to be an excerpt from his EEOC intake form, contains additional allegations that may be relevant to his discrimination claims. However, because the Amended Complaint did not include these allegations or attach the same materials, the Court declines to consider the additional facts for purposes of this motion to dismiss.
Cauler v. Lehigh Valley Hosp., Inc. ,
Shaner v. Synthes,
Defendant has not challenged the sufficiency of Plaintiff's allegations regarding his disability; however, should Plaintiff decide to amend his complaint, he should include additional allegations to support his assertion that he has or is perceived to have "a physical impairment that substantially limits one or more major life activity," as defined under the ADA. See, e.g., Heard v. St. Luke's Hosp. , No. 08-5494,
Pl.'s Resp. to Mot. to Dismiss at 9 n.4.
Glover v. C & Z Constr. Servs., LLC , No. 1:17-CV-647,
However, a transfer to another unit, as Plaintiff alleges he requested, is not necessarily a "reasonable accommodation." See, e.g. Gaul v. Lucent Tech., Inc. ,
Kelly v. Drexel Univ. ,
To the contrary, employers have an affirmative obligation to discuss potential accommodations with an employee when put on notice that the employee may need accommodations. See, e.g., Garner v. Sch. Dist. Of Phila. ,
Even in his own briefing, Plaintiff states that he was terminated "[d]espite his medical issues," not because of them. Pl.'s Resp. to Mot. to Dismiss at 9.
Conoshenti v. Pub. Serv. Elec. & Gas Co. ,
Pl.'s Resp. to Mot. to Dismiss at 10.
The Amended Complaint does not assert an age, race, or gender retaliation claim under the ADEA or Title VII.
Abramson v. William Paterson Coll. of N.J. ,
C.f. Donald v. Se. Pa. Trans. Auth. , No. 13-440,
Ross v. Gilhuly ,
See, e.g. , Popko v. Penn State Milton S. Hershey Med. Ctr. , No. 1:13-CV-01845,
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,
Reference
- Full Case Name
- Lee J. DRUMMER v. TRUSTEES OF the UNIVERSITY OF PENNSYLVANIA t/d/b/a Hospital of the University of Pennsylvania
- Cited By
- 24 cases
- Status
- Published