The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER
Before the Court for consideration and disposition are Defendant's MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED, with brief in support (Document Nos. 5 & 6), and PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT (Document No. 8). The issues have been fully briefed, and the matter is ripe for disposition. For the reasons that follow, Defendant's Motion to Dismiss will be granted and Plaintiff's Complaint will be dismissed with prejudice.
This is the second of two federal employment discrimination actions concerning the termination of Plaintiff Laurie Gloeckl ("Plaintiff") by Defendant Giant Eagle, Inc. ("Defendant"). Beginning in 1990, Defendant employed Plaintiff in various positions, including the bakery department, the floral department and the human resources department. Complaint at ¶ 1. Plaintiff suffered a non work-related injury that culminated in her permanent absence from work beginning October 15, 1999. Report and Recommendation ("R & R"), Civil Action No. 03-550, Document No. 30 at 6. On August 16, 2001, when Plaintiff sought to return to work under a twenty-hour restriction, Defendant informed her that she could not return to work in any capacity. Id. at 9. Defendant declined to reconsider its earlier decision and subsequently did not respond to Plaintiff's written requests to return to work. Id. at 10-11, 13-14.
On August 15, 2002, Plaintiff filed a complaint of discrimination with the Equal Opportunity Employment Commission ("EEOC"), which was dismissed as untimely. Complaint at ¶ 15; R & R at 14. On April 1, 2003, Plaintiff filed a one-count Complaint in the U.S. District Court for the Western District of Pennsylvania. See Complaint atCivil Action No. 03-550 (the "First Complaint"). The action was assigned to this member of the Court, and was referred to Magistrate Judge Lisa Pupo Lenihan.
Plaintiff alleged in the First Complaint that Defendant failed to provide her with a reasonable accommodation when Defendant did not allow her to return to work on a part-time basis, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). First Complaint at ¶¶ 10-13. After discovery was complete, Defendant moved for summary judgment. Among other arguments, Defendant contended that Plaintiff's EEOC complaint was untimely. When Plaintiff alleged that she continued to be Defendant's employee (on a "leave of absence"),*fn1 Defendant averred that Plaintiff had been terminated nearly 8 months earlier, on April 28, 2004.*fn2 Judge Lenihan addressed the issue of Plaintiff's "official" termination in the context of determining whether Plaintiff had or had not returned to working for Defendant:
Defendant contends Plaintiff was separated from her employment on April 28, 2004. Plaintiff disputes this and submits that Plaintiff remains an employee on a leave of absence and in support thereof, cites generally to her personnel file.
The Court has reviewed [the documents referenced by Plaintiff] and has not found any support for Plaintiff's position contained therein.
R & R at 6 n. 7 (internal citations omitted). Thus, although Plaintiff had not worked since October of 1999, and was informed that she could not return to work on August 16, 2001, she was not "officially" separated from her employment until April 28, 2004.
The Court adopted Judge Lenihan's Report and Recommendation as its own opinion and granted summary judgment on the basis that Plaintiff's EEOC complaint was untimely. Memorandum Order, Civil Action No. 03-550, Document No. 33. Plaintiff appealed and on April 20, 2006, the Third Circuit affirmed the grant of summary judgment. In deciding whether Plaintiff's charge of discrimination was timely filed, the Third Circuit made the following determination:
We are convinced that the alleged discriminatory practice took place when the company denied Gloeckl's request to be transferred to a part-time position on August 16, 2001. As aptly stated by the District Court, "such an action was, in effect, equivalent to a termination of her employment. Therefore, [Gloeckl's] subsequent requests for reconsideration of [Giant Eagle's] decision not to allow her to return to work in any capacity had no effect on tolling the statute of limitations." App. vol. 1, at 28. In this context, Gloeckl failed to file a timely charge of discrimination.
Third Circuit Opinion at 4.
On February 16, 2005, prior to the disposition of her first case in this Court, Plaintiff filed a second charge of discrimination with the EEOC which alleged that she was unlawfully terminated on April 28, 2004. Complaint at ¶ 21. The EEOC dismissed her charge. Plaintiff then filed a second Complaint in this Court (the instant Complaint) which alleges that she was terminated on April 28, 2004 due to her disability, in violation of both the ADA and the Rehabilitation Act of 1973 (Count I). The instant Complaint also alleges that "the action taken by Giant Eagle in terminating Ms. Gloeckl's employment after being considered a current employee for a three-year span of time while on leave of absence for her disability was in direct retaliation for filing suit against her employer," in violation of the ADA and the Rehabilitation Act (Count II). Complaint at ¶¶ 37-38. Finally, Plaintiff alleges an unlawful failure to transfer, in violation of the ADA and the Rehabilitation Act (Count III). Specifically, Plaintiff alleges at Count III that despite "numerous requests for accommodations, defendant refused to grant plaintiff the accommodations necessary for transfer to vacant and funded part-time positions." Complaint at ¶ 42.
Defendant contends in its Motion to Dismiss that Plaintiff's claims are barred by claim preclusion, and that it is not subject to the Rehabilitation Act because it is not a recipient of ...