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REDDINGER v. HOSPITAL CENT. SERVS.

May 5, 1998

SUSAN REDDINGER
v.
HOSPITAL CENTRAL SERVICES, INC.



The opinion of the court was delivered by: JOYNER

MEMORANDUM AND ORDER

 JOYNER, J.

 May 5, 1998

 Defendant, Hospital Central Services, Inc. has filed a motion to dismiss plaintiff's amended complaint alleging claims under the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. and the Family Medical Leave Act, 29 U.S.C. § 2601, et. seq. For the reasons detailed below, the motion shall be granted with leave to replead.

 Statement of Facts

 According to the averments in the amended complaint, plaintiff Susan Reddinger began employment for Hospital Central Services in September, 1987 as a utility worker in the laundry room. Plaintiff's son, Kevin, born on October 4, 1984, suffers from cerebral palsy. Until January 4, 1996, plaintiff's mother cared for Kevin while plaintiff and her husband were working and when he was not in school, i.e., from 5:30 a.m. until school hours began and again from 2:00 to 4:00 p.m. On that date, however, plaintiff's mother broke her arm and, as a result, was temporarily unable to care for plaintiff's child.

 Plaintiff asked Defendant for a temporary modification in her work schedule and/or that she be permitted to take her already earned vacation time to care for her son until her mother completed her convalescence. When defendant denied these requests, plaintiff decided to take unpaid leave under the Family and Medical Leave Act ("FMLA"). Defendant then set off one week of the unpaid leave against plaintiff's earned vacation time and subsequently terminated her upon her return to work on February 26, 1996, purportedly for attempting to seek protection under the Americans with Disabilities Act ("ADA") and in retaliation for attempting to exercise her rights under the FMLA. Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") claiming that her termination violated the ADA and the FMLA. A claim for retaliation was not present in the Charge of Discrimination. A right to sue letter was issued by the EEOC in July, 1997 and Plaintiff filed this action in the United States District Court for the Eastern District of Pennsylvania. Defendant now moves to dismiss.

 STANDARD OF REVIEW

 Upon consideration of a motion to dismiss under Rule 12(b)(6) *fn1" of the Federal Rules of Civil Procedure, the district court shall take all allegations included in the complaint as true and construe them in the light most favorable to the plaintiff. H.J. Inc. v. Northwest Bell Tel. Co., 492 U.S. 229, 249-50, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990). The complaint shall be dismissed only if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Northwest Bell, 492 U.S. at 249-50 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984)).

 DISCUSSION

 A. ADA Discrimination Claim.

 Defendant first contends that it is entitled to a Rule 12(b)(6) dismissal because plaintiff does not establish a prima facie case under the ADA, particularly with regard to the ADA's "association provision."

 Specifically, 42 U.S.C. § 12112 provides, in pertinent part:

 
(a) General rule
 
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
 
(b) Construction
 
As used in subsection (a) of this section, the term ...

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