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Black v. North Hills School Dist.

September 17, 2007


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge


This is an employment discrimination action alleging violations of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq., stemming from Plaintiff's employment as an art teacher and alleged constructive termination therefrom. For the following reasons, Defendant's Motion to Dismiss Pursuant to Rule 12(b) to be Treated as a Motion for Summary Judgment Pursuant to Rule 56 Based on Evidence Outside the Pleadings [DE 36] is granted in part and denied in part.


As evident by the title of its motion and numerous exhibits attached thereto, Defendant requests that the Court convert its motion to dismiss to a motion for summary judgment pursuant to Rule 12(b). The Plaintiff responds arguing that Defendant's motion is "inherently a 12(b)(6) motion" in that the Plaintiff has not yet conducted discovery or developed the record. Thus, as a threshold issue, the Court must first determine whether to treat Defendant's motion as a motion to dismiss or a motion for summary judgment.

The last sentence of Rule 12(b) provides that "[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). "Whether or not to treat the motion as a motion for summary judgment by considering the outside materials attached thereto is a matter of discretion for the court." Brennan v. National Telephone Directory Corp., 850 F.Supp. 331, 335 (E.D. Pa. 1994) (citations omitted); Pryor v. National Collegiate Athletic Ass'n., 288 F.3d 548, 559 (3d Cir. 2002) (citing Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir.1992) ("Generally speaking, a trial court has discretion to address evidence outside the complaint when ruling on a motion to dismiss")). However, courts have held that exercise of the court's discretion is not warranted where there has been little or no discovery conducted by the parties. Id. (citing Brug v. The Enstar Group, Inc., 755 F.Supp. 1247, 1251 (D. Del. 1991); Ospina v. Dept. of Corrections, 749 F.Supp. 572, 574 (D.Del. 1990); Kelley ex rel. Michigan NRC v. Arco Indus., 721 F.Supp. 873, 877 (W.D. Mich. 1989)). "Considering the motion as a motion for summary judgment would be improper in those situations because the parties may not be able to present enough material to support or oppose a motion for summary judgment since no factual record has yet been developed." Id. (citing Ospina, 745 F.Supp. at 574 (citing Melo v. Hafer, 912 F.2d 628, 634 (3rd Cir. 1990), aff'd, 502 U.S. 21 (1991))).

While the Court notes the relative age of this case,*fn1 as provided in Plaintiff's response, it appears that the parties have not yet conducted discovery in any substantive manner at this stage of the litigation. Moreover, the Defendant did not reply to or dispute Plaintiff's representation as to the progress (or, more appropriate here, lack thereof) of discovery. As a result, the Plaintiff has "not be[en] able to present enough material to ... oppose a motion for summary judgment ... ." Id. For example, in support of its argument that the Plaintiff is not a "qualified individual" under the Rehabilitation Act, the Defendant relies on evidence in the form of medical records and notes from Plaintiff's treating physician; however, the Plaintiff's treating physician has not yet been deposed. Thus, the Plaintiff is not able to present evidence to oppose a motion for summary judgment because "no factual record has yet been developed." Furthermore, it is significant to note that only the Defendant has submitted and relied upon materials outside the pleadings. See Ramirez v. U.S., 998 F.Supp. 425, 430-431 (D. N.J. 1998) (declining to convert a motion to dismiss to a motion for summary judgment "because plaintiff, consistent with his position that this should be treated as only a Rule 12(b)(6) motion, has not submitted any affidavits or declarations in opposition. The Court can only assume that plaintiff chose not to submit any supplemental materials because he was under the impression that this motion would be treated as a motion to dismiss"); Nubenco Enterprises, Inc. v. Inversiones Barberena, S.A., 963 F.Supp. 353, 361 (D. N.J. 1997) (providing that "[b]ecause the Defendants and [Plaintiff] have filed submissions beyond the pleadings, and have themselves construed and treated this motion as a motion for summary judgment, no party will suffer from treatment of this motion as a motion for summary judgment") (footnote omitted)). Accordingly, the Court declines to convert the motion to dismiss into a motion for summary judgment and it will not consider the additional materials submitted by the Defendant at this time.*fn2

However, when considering a Rule 12(b)(6) motion, "a court may consider an undisputably authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Steinhardt Group, Inc. v. Citicorp., 126 F.3d 144, 145 (3d Cir.1997) (quoting Pension Guar. Corp. v. White Consol. Indus, Inc., 998 F.2d 1192, 1196 (3d Cir.1993)). For example, a court may consider administrative documents, such as a plaintiff's EEOC charge, without converting the motion to dismiss to a motion for summary judgment. See Grant v. Allegheny Ludlum Corp., No. 2:07-cv-00513, 2007 WL 2492736, at *3 (W.D. Pa. Aug. 30, 2007); Turlip v. N. Pocono School Dist., No. 05CV1182, 2006 WL 547924, at *4 n. 7 (M.D. Pa. March 6, 2006) (citing Pension Benefit, 998 F.2d at 1196) (holding that a court can consider documents that are part of the EEOC administrative record without converting motion to dismiss into motion for summary judgment)). Accordingly, the Court will consider Plaintiff's EEOC charge of discrimination.

The applicable inquiry under Rule 12(b)(6) is well-settled. In reviewing a motion to dismiss under Rule 12(b)(6), the Court accepts all well-pleaded allegations as true and views them in the light most favorable to the non-moving party, i.e., the Plaintiff. Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir.1997); Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). "The issue is not whether a [plaintiff] will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1420 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, (1974)). Claims should be dismissed under Rule 12(b)(6) "only if it is certain that no relief can be granted under any set of facts which could be proved." Klein v. Gen. Nutrition Cos., 186 F.3d 338, 342 (3d Cir.1999) (internal citation omitted); Evancho, 423 F.3d at 351 (quoting D.P. Enter., 725 F.2d at 944) (providing that a motion to dismiss pursuant to Rule 12(b)(6) should be granted only "if it appears to a certainty that no relief could be granted under any set of facts which could be proved"). Under this standard, a complaint, or here a counterclaim, will be deemed to have alleged sufficient facts if it adequately puts the plaintiff on notice of the essential elements of defendant's claims.

Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). However, a court will not accept bald assertions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir.2002); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n. 8 (3d Cir.1997).

Under the liberal notice pleading standard of Federal Rule of Civil Procedure 8(a), a complaint requires only a short and plain statement showing a right to relief rather than a "detailed recitation of proof that in the end establish[es] such a right." Pryor v. NCAA, 288 F.3d 548, 564 (3d Cir. 2002). Overall, "courts have an view the complaint as a whole and to base rulings not upon the presence of mere words, but rather, upon the presence of a factual situation which is or is not justiciable. We do draw on the allegations of the complaint, but in a realistic, rather than a slavish, manner." Doug Grant, Inc. v. Great Bay Casino Corp., 232 F.3d 173, 184 (3d Cir. 2000) (quoting City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998)). Finally, the defendant bears the burden to demonstrate that the complaint fails to state a claim. Gould Electronics, Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000).


Because the Court treats the instant motion as a motion to dismiss, see supra, the Court "accept all plaintiff['s] well-pled material allegations as true and draw all reasonable inferences therefrom in favor of plaintiff[]." McCliment v. Easton Area School Dist., Civil Action No. 07-0472, 2007 WL 2319768, at *1 (E.D. Pa. Aug. 10, 2007) (citing Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997)).

The Plaintiff retired from her position as an art teacher at North Hills School District Junior High School, effective January 24, 2005. Docket No. 35, at ¶8. Plaintiff alleges that she suffered (and presumably, continues to suffer) from severe back and joint problems, having been diagnosed with spondylolisthesis as well as degenerative joint and disc disease. Docket No. 35, at ¶12. The Plaintiff informed Defendant of her disability. Docket No. 35, at ¶14, for which she has been treated by a physician, Docket No. 35, at ¶16. Sometime thereafter, presumably before the start of the 2004-2005 school year, the Plaintiff requested a medical sabbatical leave of absence for the second semester of the 2004-2005 school year, which she begun in August 04 2004. Docket No. 35, at ¶31-33

On or about June 24, 2006, "once her allowed medical leave time expired[,] Plaintiff was finally forced to retire", Docket No. 35, at ΒΆ41, because the Defendant refused to provide the Plaintiff with any reasonable ...

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