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Cronin v. Visiting Nurses Association of St. Luke's Hospital

September 30, 2009


The opinion of the court was delivered by: Stengel, J.


This is an employment discrimination action removed from the Court of Common Pleas of Northampton County alleging violations of the Americans with Disabilities Act*fn1 and the Pennsylvania Human Relations Act.*fn2 The defendant, Visiting Nurses Association of St. Luke's Hospital ("VNA"), has filed a motion to dismiss Ms. Cronin's Amended Complaint. I will grant the motion as to the portions of Ms. Cronin's Amended Complaint alleging retaliation and constructive discharge, and deny it as to the portion of her complaint alleging failure to accommodate.


Patricia Cronin was hired by the VNA as a Staff Based Hospice RN on September 8, 1997. Pl.'s Am. Compl. at ¶ 3. She was suspended on February 8, 2007 for allegedly calling in a prescription without a doctor's order on January 29, 2007. Id. ¶ 5-6. At a meeting on February 8, 2007, VNA administrators informed her that they "were not sure that [she was] safe to care for patients" and that an investigation of her conduct was forthcoming. Id. at ¶ 14. Ms. Cronin and a Human Resources representative of the VNA, Sharon Carney, had a meeting on February 12, 2007 to discuss the allegations against her. Id. at ¶ 16. The investigation was completed and Ms. Cronin had a meeting with her supervisors on February 23, 2007 regarding her conduct and the remedial measures the VNA would take in response to it. Id. at ¶ 20. At that meeting, although Ms. Cronin's supervisors explained that they had discovered that the doctor did in fact give permission for a call-in order, Ms. Cronin was given a Corrective Action report stating she was on third warning probation. Id. at ¶¶ 21-22.

That report, which is dated February 19, 2007, indicates that the "second situation" or "problem" with Ms. Cronin "involved RN's report related to current hospice patient, pain-management needs, and following standards of care." Def.'s Mot. To Dismiss, Ex. C. The action plan created in response to Ms. Cronin's behavior involved her re-assignment to an RN position at the "hospice house," and warnings that she needed to "demonstrate professional behavior and practice at all times and with all patients" and that "any incidents of unprofessional behavior or inability to achieve satisfactory performance [would] result in immediate termination." Id. Ms. Cronin was subsequently assigned to shifts she characterized as "various" and "unstable." Def.'s Mot. to Dismiss, Ex. B.

On February 26, 2007, Ms. Cronin submitted a letter from her physician, Dr. Jonathan H. Munves, to Ms. Carney informing her that Ms. Cronin suffered from "Multiple Sclerosis, obstructive Sleep Apnea, Depression, and a Seizure Disorder." Pl.'s Am. Compl. at ¶ 9; Def.'s Mot. To Dismiss, Ex. H. The letter stated that "[t]hese conditions can all be exacerbated by night shift work and reasonable accommodations should be made in light of this." Id.

Ms. Cronin's complaint does not provide the date on which she ceased working for the VNA. She merely avers she was "constructively discharged from her employment because she was removed from the position she had held for so many years and was told that she would have to take a lesser position with the Defendant." Pl.'s Am. Compl. at ¶ 33.

Ms. Cronin had an intake phone call with a representative from the Equal Employment Opportunity Commission ("EEOC") on July 16, 2007. Pl.'s Am. Compl. at ¶ 36. Her counsel requested a copy of the charge of discrimination on July 25, 2007 and August 27, 2007. Id. at Ex. A, B. The charge of discrimination was forwarded to her counsel on September 18, 2007. Id. at ¶ 38. Ms. Cronin executed it October 15, 2007 and sent to the EEOC that day. Id. at ¶ 39, Ex. C. Ms. Cronin requested a "Right to Sue" letter from the EEOC on March 19, 2008, and received her Notice of Right to Sue on March 24, 2008. Def.'s Mot. To Dismiss, Ex. E; Pl.'s Am. Compl. at ¶ 42.

Ms. Cronin claims that the VNA violated 42 U.S.C. Section 12101, the Americans with Disabilities Act ("ADA"), and 43 P.S. Section 951, the Pennsylvania Human Relations Act ("PHRA").


A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).


The VNA has filed a motion to dismiss claiming that Ms. Cronin has failed to exhaust her administrative remedies, and is therefore precluded from bringing a civil suit and that she has failed to state a prima facie case of discrimination, retaliation, and constructive discharge in violation of the ADA and PHRA.

A. Consideration of Extrinsic Documents

As a preliminary matter, this Court must determine which, if any, of the documents attached to the VNA's Motion to Dismiss may be considered by the Court without converting this motion to dismiss into one for summary judgment. Ms. Cronin claims in her response to the VNA's motion to dismiss that it has introduced matters outside the pleadings which may not be considered at this stage of litigation. Pl.'s Resp. to Def.'s Mot. to Dismiss, 3-6.

In deciding a motion to dismiss, courts generally consider only the allegations contained in the complaint, any exhibits attached to the complaint, and matters of public record. Pension Benefit Guaranty Corp. v. White, 998 F.2d 1192, 1196 (3d Cir.1993). However, a plaintiff's failure to attach to the complaint or cite documents that are integral to or relied on in the complaint does not preclude the court from relying on such documents in considering a motion to dismiss. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997)("a court may consider a document that is 'integral to or explicitly relied upon in the complaint' without converting the motion to dismiss into one for summary judgment").

Courts may consider a document that a defendant attaches as an exhibit to a motion to dismiss when its authenticity is undisputed and the plaintiff's claims are based on the document. Rogan v. Giant Eagle, Inc., 113 F. Supp. 2d 777, 780-81 (W.D.Pa. 2000) (citing Pension Benefit, 998 F.2d at 1196).

Because Ms. Cronin has failed to identify which of the VNA's exhibits she contends should be excluded and does not contest the authenticity of any document, an analysis of each document's relevance and admissibility at this stage is necessary. Keeping in mind the basic rule that a court may exclude documents "neither mentioned in the complaint nor relied upon in the plaintiff's claims," Rogan, 113 F.Supp.2d at 782, I will exclude from ...

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