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August 14, 2000


The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.


Plaintiff Tara Voorhees ("Voorhees")*fn1 brought this action against defendant Time Warner Cable National Division ("Time Warner"), alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the Pennsylvania Human Relations Act, 43 Pa.S.A. §§ 951, et seq.*fn2 This action is related to another action also before this Court, Voorhees v. Time Warner Cable Nat'l Div., Civil Action No. 98-1460 ("Voorhees I").*fn3 Plaintiff has filed a motion to consolidate the two actions (Document No. 21), and defendant has filed a motion to dismiss this action, or in the alternative, for summary judgment (Document No. 8). For the following reasons, plaintiff's motion to consolidate will be granted and the defendant's motion to dismiss will be denied.

The factual background of this case is set forth in this Court's ruling on defendant's motion for summary judgment in Voorhees I, and therefore I will not recount the facts in detail here. See Voorhees v. Time Warner Cable Nat'l Div., No. 98-1460, 1999 WL 673062 **1-2, 1999 U.S. Dist. LEXIS 13227, at *1-5 (E.D.Pa. Aug. 26, 1999). Suffice it to say that during her employment as a customer service manager with Time Warner, plaintiff took two leaves of absence within a five-month period for medical reasons.*fn4 After her return from the first leave of absence, which lasted three months, plaintiff's job responsibilities were altered. Soon after plaintiff did not return to work at the end of her second authorized leave of absence, which lasted approximately four weeks, plaintiff was terminated.

Plaintiff alleges that the alteration of her job responsibilities and her termination violated the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA). Defendant argues that because the claims in this action and those in Voorhees I are dependent on the same set of facts, plaintiff should have brought her ADA claim in Voorhees I, and her failure to do so commands dismissal of this action case. Defendant also contends that plaintiff's complaint fails to state a claim under the ADA.


While defendant calls its filing a motion to dismiss or, in the alternative, for summary judgment, I will address it only as a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The language of defendant's brief is overwhelmingly that of a motion to dismiss, and plaintiff has responded to the motion as if it were solely a motion to dismiss. Moreover, neither party has provided the Court with evidence from which the Court might determine the presence or absence of a genuine issue of material fact, as it must on a motion for summary judgment. Should either party deem it necessary to file a motion for summary judgment on the ADA/PHRA claims under Rule 56(c) of the Federal Rules of Civil Procedure in the wake of today's ruling, the Court will entertain it.

The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the allegations contained in the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). "In a Rule 12(b)(6) motion, the court evaluates the merits of the claims by accepting all allegations in the complaint as true, viewing them in the light most favorable to the plaintiffs, and determining whether they state a claim as a matter of law." See Gould Elecs., Inc v. United States, 220 F.3d 169, 178 (3d Cir. 2000) (citing In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1420 (3d Cir. 1997)). It is the defendant's burden to show that no claim has been stated. See Kehr Packages v. Fidelcor, 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991). A complaint will be dismissed only if the plaintiff could not prove any set of facts that would entitle him to relief. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

A. Claim Preclusion and the Motion to Consolidate

The parties present overlapping arguments on the motion to consolidate and the motion for summary judgment. Defendant Time Warner argues that plaintiff's failure to bring her ADA claim along with her FMLA claim in Voorhees I is fatal to the instant action. Relying heavily on the decision of the Court of Appeals for the Third Circuit in Churchill v. Star Enterprises, 183 F.3d 184 (3d Cir. 1999), Time Warner urges the Court to conclude that plaintiff's ADA claim is precluded.

Churchill is distinguishable from the instant case on a number of grounds. First, Churchill involved a plaintiff's attempt to bring an ADA claim after a trial and verdict against her in a FMLA action that arose out of identical facts. Clearly, the case for claim preclusion is far more compelling in the wake of a trial, verdict, and judgment in a prior case; the potential for prejudice is far greater when a defendant is required to go to trial twice over the same set of facts. In Churchill, the court of appeals was primarily concerned with the fact that a trial had already taken place prior to the initiation of the new suit based on the same facts, and therefore held that the new ADA suit was precluded because plaintiff "could have brought an action on that (ADA) claim about three months before Churchill I went to trial." Churchill, 183 F.3d at 191. Such is not the case here. There has been no trial; only a ruling on a motion for summary judgment. Thus, the status of the two actions at issue here differs greatly from Churchill, and does not warrant the extreme remedy of dismissal of this action.*fn5

The primary reason defendant's reliance on Churchill is misplaced is that plaintiff Voorhees is following the explicit recommendation of the court of appeals Churchill. The court of appeals observed that the plaintiff "should have moved to consolidate her two cases. . . . Churchill `sat on her rights' when she could have attempted to join the ADA claim to the FMLA claim in consolidated litigation." Churchill, 183 F.3d at 191. This plaintiff has moved to consolidate the two cases and thus taken the very step that would have rescued the plaintiff's claim from dismissal in Churchill, according to the court of appeals.

Moreover, plaintiff did not "sit on her rights" with respect to her ADA claim. To the contrary, she filed this ADA claim early to preserve her rights under the ADA. Counsel for plaintiff has represented to the Court that this action was filed as a precautionary measure, because plaintiff was required to file suit within 90 days of receiving her right-to-sue notice from the Equal Employment Opportunity Commission, and a motion to amend the complaint in Voorhees I might not have been effective in preserving her ADA claim from the running of the 90-day limitations period.*fn6 I see no reason to doubt the representation of plaintiff's attorneys or to conclude that they were lackidaisical with respect to their pursuit of this claim; to the contrary, their efforts to preserve plaintiff's ADA claim appear to have been cautious, prudent, and reasonable.

Finally, the arguments of Time Warner in favor of claim preclusion seem inconsistent with a communication the Court received from counsel for Time Warner. While defendants have argued that plaintiff's ADA and PHRA claims should be dismissed because they were brought separately from Voorhees I, counsel stated in a letter to the Court that he did not oppose the consolidation of this action with Voorhees I. (Letter from William J. Delany, Counsel to Defendant, Jan. 27, 2000).*fn7 Co ...

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