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Lindsay Fleck v. Wilmac Corporation

May 19, 2011

LINDSAY FLECK,
PLAINTIFF,
v.
WILMAC CORPORATION,
WILMAC MEDICAL INSURANCE PLAN, ATTLEBORO ASSOCIATES, LTD., ATTLEBORO NURSING &
REHABILITATION CENTER, AND SUSAN MITCHELL, DEFENDANTS.



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

MEMORANDUM

Presently before the Court is the Motion of Defendants WILMAC Corporation, WILMAC Medical Insurance Plan, Attleboro Associates, Ltd., Attleboro Nursing & Rehabilitation Center, and Susan Mitchell to Dismiss the Amended Complaint of Plaintiff Lindsay Fleck pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motion is granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

This action centers upon Plaintiff Lindsay Fleck's allegations of discrimination by her former employer, Defendant Attleboro Nursing and Rehabilitation Center ("Attleboro"), on the basis of Plaintiff's disability and exercise of rights related thereto. Plaintiff Fleck, of Newtown, Pennsylvania, was hired by Attleboro as a per diem physical therapist in August of 2007. (Am. Compl. ¶ 15.) She became a full-time employee in December of 2007.(Id.)

According to the facts set forth in the Amended Complaint, Plaintiff suffered an ankle injury in March of 2006 that has resulted in chronic medical problems. (Id. ¶ 16.) This ongoing ankle condition prevents Plaintiff from standing for more than an hour or walking for more than a half mile. (Id. ¶ 19.) Plaintiff had surgery on her ankle prior to her employment with Attleboro, but the surgery failed to resolve the injury. (Id. ¶ 18.) This chronic injury affected Plaintiff during her entire tenure at Attleboro, to the point that she used a cam boot to enable her to stand for the time required by her position. (Id. ¶¶ 20-21.) According to Plaintiff, her supervisor was aware of her disability because the cam boot was plainly visible. (Id. ¶ 22.)

On or about August 7, 2008, Plaintiff notified Attleboro that she would need further surgery on her ankle and requested paperwork for short-term disability and leave pursuant to the Family Medical Leave Act ("FMLA"). (Id. ¶ 22.) Soon after, on or about August 18, 2008, Plaintiff's supervisor issued her a written disciplinary notice signed by Defendant Susan Mitchell, Director of Attleboro Human Resources. (Id. ¶ 29.) Plaintiff received the notice upon returning to work from vacation on August 27. (Id. ¶ 33.) The notice stemmed from an August 15th incident during which Plaintiff placed a speed restrictor on a patient's wheelchair. (Id. ¶ 29.) Plaintiff alleges that she did so appropriately, as the patient had posed a safety threat to other patients by rolling backwards in her chair. (Id. ¶ 29.) She maintains that her actions were properly documented in a twenty-four hour report and interdisciplinary progress notes, and were reported at a morning meeting. (Id. ¶ 30.) The notice stated that Plaintiff had refused to reevaluate the device, although Plaintiff avers that she had actually "requested help to come up with an alternative intervention to maintain safety." (Id. ¶ 31.) Plaintiff further alleges that heremployer, in issuing the notice, did not follow the progressive steps of discipline required by the WILMAC employee handbook, such as investigation by a supervisor and counseling of the employee before such notice is issued. (Id. ¶ 34.) According to Plaintiff, prior to the incidents in question, she had a positive performance record. (Id. ¶ 28.) In light of these events, Plaintiff asserts that Attleboro Nursing, via Defendant Mitchell, disciplined Plaintiff in retaliation for her request to take FMLA leave and with the intent of interfering with her taking such leave. (Id. ¶35.)

Additionally, Plaintiff avers that she had still not received the requested FMLA forms by October 2008, such that she had to re-request them. (Id. ¶ 36.) She submitted her completed FMLA and short-term disability paperwork to Defendant Mitchell on or about October 31, 2008. (Id. ¶ 37.) On or about November 19, 2008, Plaintiff learned that Defendant Mitchell had not submitted her disability claim. (Id. ¶ 38.) As a result, she would receive no income following her surgery, which was scheduled for the following day. (Id. ¶ 38.) When Attleboro finally submitted Plaintiff's claim, the company purportedly provided incorrect salary information, which decreased the amount of her benefits. (Id. ¶ 38.) Plaintiff commenced her FMLA leave on or around November 20, 2008. (Id. ¶ 39.)

On or about February 5, 2009, Plaintiff advised her supervisor that she was able to return to work at a schedule of four hours per day. (Id. ¶ 40.) She submitted a note from her doctor stating that she could increase her hours over a period of six weeks. (Id.) On February 6, 2009, Plaintiff's supervisor and Defendant Mitchell called Plaintiff to inform her that her employment was terminated because she was unable to work eight hours per day. (Id. ¶ 42.) Plaintiff alleges that they instructed her not to return to work on February 12, 2009 when her FMLA leave ended.

(Id.) According to Plaintiff, her doctor then wrote an alternative order stating that Plaintiff could work an eight-hour day if she had a break every hour. (Id. ¶ 43.) She alleges that Defendant Attleboro refused to discuss this alternative work schedule or Plaintiff's proposal of extended unpaid leave, nor did Defendant make any effort to determine whether a different accommodation would allow Plaintiff to return to work. (Id. ¶¶ 44-47.) Consequently, Plaintiff did not return to work at the end of her FMLA leave on February 12. (Id. ¶51.)

Plaintiff emailed her supervisor and Defendant Mitchell on February 7, 2009 requesting written confirmation and explanation of her termination. (Id. ¶ 49.) When she received no response, she sent a letter requesting the same on February 10. (Id. ¶ 50.) On February 12, Plaintiff received a letter from Defendant Mitchell stating that she had exhausted her twelve weeks of leave under the federal Family and Medical Leave Act and was being voluntarily terminated "based on the failure to return from a leave of absence." (Id. ¶ 52.)

Post-termination, Attleboro Nursing paid Plaintiff for accrued vacation time. (Id. ¶ 53.) According to Plaintiff, however, the entity improperly deducted amounts for her health benefits and flexible spending account at rates higher than during her employment, despite the fact that she was no longer covered under those plans. (Id.) Plaintiff further alleges that, despite her termination on February 6, 2009, Defendant WILMAC Medical Insurance Plan did not send Plaintiff timely notice of her right to extend her health benefits pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). (Id. ¶ 54.) According to Plaintiff, she did not receive such notice until nine months later, on November 23, 2009. (Id.) Similarly, Defendant WILMAC failed to notify Plaintiff of the reduction in COBRA premiums resulting from the passage of the American Recovery and Reinvestment Act of 2009 ("ARRA") until November 23, 2009. (Id. ¶¶ 56-57.)

Plaintiff avers that Attleboro, via Defendant Mitchell, terminated her employment because of her purported disability and in retaliation for her exercise of her FMLA rights. (Id. ¶58.) As a result, Plaintiff now alleges damages "including but not limited to lost income, lost benefits, emotional distress, and loss of enjoyment of life." (Id. ¶ 60.) Plaintiff commenced this action on October 21, 2010. On December 10, 2010, she filed an Amended Complaint, asserting violations of: (1) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., by Defendants Attleboro, WILMAC, and Attleboro Associates Ltd. ("Attleboro Associates") for disability discrimination (Count I) and failure to accommodate (Count III); (2) the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq., against Defendants Attleboro, WILMAC, and Attleboro Associates for disability discrimination (Count II) and failure to accommodate (Count IV); (3) the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., by all Defendants (Count V); (4) the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., by all Defendants (Count VI); and (5) COBRA, 29 U.S.C. §§ 1161-1169, and the ARRA, Pub. L. No. 111-5 123 Stat. 115 (2009), by all Defendants (CountVII).

On December 30, 2010, Defendants moved to dismiss Plaintiff's ADA, PHRA, and FMLA claims (Counts I-V) for insufficient pleading, the ERISA and COBRA claims (Counts VI and VII) for failure to specify damages, all claims for emotional distress and punitive damages, and all individual claims against Defendant Mitchell. Plaintiff filed a Response in Opposition on January 20, 2011, and a Supplemental Memorandum in Opposition on March 30, 2011. Defendants filed a Reply on April 11, 2011. The Court now considers Defendants' Motion.

II. STANDARD OF REVIEW

Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6); see alsoHedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). Federal Rule of Civil Procedure 8 does not call for detailed factual allegations; rather, it requires a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8; Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Further, the court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

The Supreme Court has made clear, however, that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Instead, the plaintiff must offer "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. To do so, the plaintiff must show "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556-57); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (adopting Iqbal's standards).

III. DISCUSSION

A. Whether Plaintiff has Stated a Valid Claim Under the ADA and PHRA

The ADA prohibits employment discrimination against "a qualified individual on the basis of disability" with regard to "the hiring, advancement, or discharge of employees . . . and other terms, conditions, and privileges of employment" on the basis of such disability. 42 U.S.C. § 12112(a).*fn1 The term "discriminate" includes the failure to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability," unless the employer demonstrates that such accommodations would impose an "undue hardship" on the operation of their business. 42 U.S.C. § 12112(b)(5)(A).

To establish a prima facie case of discrimination under the ADA, the plaintiff must allege that: 1) she is "disabled" within the meaning of the ADA; 2) she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and 3) she has suffered an adverse employment decision as a result of discrimination. Gaul v. Lucent Techs., 134 F.3d 576, 580 (3d Cir. 1998) (citing Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)). Plaintiff alleges that Defendants violated the ADA and PHRA by refusing to provide or even discuss potential accommodations for Plaintiff's ankle condition upon her return from FMLA leave (Counts III and IV), and by terminating her on account of her alleged disability (Counts I and II). In response, Defendants contend that Plaintiff was neither disabled nor a "qualified individual" under the ADA, as she was unable to perform the essential functions of her position after her November 2008 surgery. (Defs.' Mot. Dismiss 7.) The Court considers these arguments in turn.

1. Whether Plaintiff was Disabled

The ADA provides that an individual has a disability if she has: (1) "a physical or mental impairment that substantially limits one or more major life activities of such individual;" (2) "a record of such an impairment;" or (3) is "regarded as having such an impairment." 42 U.S.C. ยง 12102(1). Plaintiff argues that her chronic ankle injury qualifies as a disability under the ADA because it substantially limits her ability to walk and stand. Defendants counter that Plaintiff's impairment does not constitute a disability because ...


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