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Howard Aubrey v. City of Bethlehem

February 22, 2011


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


Howard Aubrey brought this action against his former employer alleging a violation of the Americans with Disabilities Act and of the Pennsylvania Human Relations Act.*fn1 The defendant filed a motion to dismiss to which the plaintiff has responded. For the following reasons, I will grant the motion to dismiss in its entirety.


A. The Amended Complaint Howard Aubrey lives in the city of Bethlehem, Pennsylvania, and worked there as

a firefighter for twenty-seven years. The amended complaint alleges that in June 2006, Mr. Aubrey admitted himself to a dual-diagnosis facility for treatment of depression, suicidal ideation, and substance abuse, and returned to work on an undisclosed date.*fn2 See Am. Compl. ¶¶ 5-7. He was placed on an Employee Action Plan and diagnosed with "Post Traumatic Syndrome"*fn3 related to his job as a firefighter. Id. The amended complaint also alleges that, on an unspecified date, the defendant advised Mr. Aubrey to "stay away from work and continue his medical treatment for [post traumatic syndrome]." Id. ¶ 8.

In January 2007, the defendant posted a job advertisement for a fire inspector position. Id. ¶ 9. Mr. Aubrey applied for the position. Id. ¶¶ 10, 20. Although he had the most seniority and was fully-qualified, Mr. Aubrey was denied the position. The defendant allegedly did not provide a reason for not awarding the position to Mr. Aubrey. Id. ¶ 11.

Also on an undisclosed date, the defendant requested that Mr. Aubrey obtain "an independent medical evaluation from a different medical examiner." Id. ¶ 12. The independent medical examiner confirmed the diagnosis of "post-traumatic syndrome," and declared that Mr. Aubrey was unfit to return to his duties as a firefighter.*fn4 Id. ¶¶ 13-14.

The amended complaint further alleges that Mr. Aubrey had made several attempts to meet with the defendant to discuss his situation and his pension, but the defendant repeatedly refused to meet with him. Id. ¶¶ 15-17. He "went out of [sic] leave for his disability at the direction of his doctor." Again, no specific date was provided. Id. ¶ 18. While out on sick leave, Mr. Aubrey exhausted all of his vacation time and all other paid leave time. Id. ¶ 19.

Mr. Aubrey received a letter from the defendant "near the end of the expiration of his paid time off" that he was being considered for the fire inspector position. Id. ¶ 21. He continued to receive regular pay stubs from the defendant until approximately January 2009, which showed no income. Id. ¶¶ 22-23, 28. Mr. Aubrey remained an active member of his Union until the time of his retirement in February 2010. Id. ¶ 24. He alleges that he was never informed that his employment with the defendant was terminated. Id. ¶ 25.

B. Discovery Limited to the Issue of Timeliness

Because Mr. Aubrey believed that the defendant violated the ADA by not granting him the ability to work in any capacity, he filed a Charge of Discrimination with the Equal Employment Opportunity Commission on May 8, 2009.*fn5 Id. ¶¶ 29-31. After several months, Mr. Aubrey's attorney requested a "notice of right to sue" from the EEOC. Upon receipt of this notice, Mr. Aubrey filed a complaint in the Court of Common Pleas of Northampton County. The defendant removed the action here because of the federal question presented, and subsequently filed its first motion to dismiss. In response, Mr. Aubrey filed an amended complaint, which rendered the motion moot. See Document #6. The defendant then filed its second motion to dismiss, again arguing, inter alia, that Mr. Aubrey's claims are time-barred because Mr. Aubrey failed to file a Charge of Discrimination with the EEOC within the required 300 days of the date of the alleged employment discrimination, i.e., January 2007.*fn6 Following a conference with counsel, I set a period for limited discovery and requested the defendant to file a supplemental brief limited to the untimeliness issue following the completion of certain depositions. After the supplemental brief was filed, the plaintiff responded.

In deciding a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint, and matters of public record. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). A court may consider, however, an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on that document. Id. If a court considers matters outside the pleadings, our rules require that a motion to dismiss be converted to one for summary judgment. See FED.R.CIV.P. 12(d).*fn7 The rationale for the conversion is to afford the plaintiff an opportunity to respond. Pension Benefit Guar. Corp., 998 F.2d at 1196. When an amended complaint relies on a document, the plaintiff obviously is on notice of the contents of the document, and the need for a chance to refute that evidence is greatly diminished. Id. at 1196-1197.

Here, it is not necessary to convert this motion to dismiss to one for summary judgment. The amended complaint contains gaps in the information provided along with unclear assertions which rendered it difficult to discern. I asked the parties to conduct limited discovery and submit supplemental briefs on the issue of untimeliness. The parties complied and have provided a much needed clarification of the time frame in this action. The documents which the parties submitted are undisputedly authentic and provided a basis for the plaintiff's claims in the amended complaint. Other documents are matters of public record and, as such, are appropriate to consider in deciding a motion to dismiss. The cited portions of depositions were considered in an effort to clarify the allegations of timeliness in the amended complaint. Furthermore, the plaintiff had the opportunity to respond to all of the documents submitted and the depositions taken. I also note that neither party objected to any of the evidence being considered under a motion to dismiss.

1. Deposition of Mr. Aubrey

At his deposition, Mr. Aubrey identified a prior civil rights action he filed against his former employer in the Court of Common Pleas of Northampton County. That action, filed in May 2008, alleged two counts of illegal retaliation for engaging in protected activity, one count of constructive discharge due to a hostile work environment, and one count of breach of contract. He claimed that he had been mistreated by the defendant and demoted in 2005 which led to his addiction to drugs and alcohol; and that he had continued to suffer psychological and physiological impairments which required treatment. The complaint did not include a claim under the ADA, and there was no associated Charge of Discrimination filed with the EEOC. In February 2009, the Honorable William F. Moran sustained the preliminary objections of the defendant and dismissed the complaint with prejudice, finding that the claims were barred by the statute of limitations.

After Judge Moran dismissed the action, Mr. Aubrey filed a Charge of Discrimination with the EEOC claiming a violation of the ADA. That Charge indicated that Mr. Aubrey last worked for the defendant in June 2006, and that he had last received salary and benefits from the defendant in October 2007. The Charge ...

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