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Carena T. Kelly v. Horizon Medical Corporation and Steven Jaditz

January 6, 2012


The opinion of the court was delivered by: Judge Caputo


Defendants Horizon Medical Corporation and Dr. Jaditz move to dismiss plaintiff Kelly's complaint. Ms. Kelly alleges defendants dramatically altered her working conditions after discovering she was pregnant. Dr. Jaditz and Horizon argue that Ms. Kelly's factual allegations fail to state claims under Title VII, the Family Medical Leave Act ("FMLA"), the Americans with Disability Act ("ADA"), or the Pennsylvania Human Relations Act ("PHRA"). The Court disagrees with defendants and will deny the motion.


Ms. Kelly alleges the following.

Ms. Kelly currently resides in Lackawanna County, Pennsylvania. Horizon Medical Corporation maintains a practice management business in Scranton, Pennsylvania. It also maintains a medical practice in Clarks Summit, PA. Dr. Steven Jaditz is a doctor of osteopathic medicine operating as a health care provider and practitioner under the control and management of Horizon. Horizon and Dr. Jaditz provide joint employment and are integrated employers.

Ms. Kelly was hired as a physicians assistant by Horizon and Dr. Jaditz in March 2008. For virtually her entire employment, Ms. Kelly was classified as an exempt professional employee under the FLSA. Her performance was evaluated in July 2008 and April 2009. She was rated as a "fully satisfactory employee" in her July 2008 performance and given a $2,000 performance bonus after her April 2009 evaluation. Dr. Jaditz was the evaluator on both occasions. Ms. Kelly did not abuse time off and, until June 2,2009, had a spotless disciplinary record.

Ms. Kelly had been trying to conceive for some time and had been receiving fertility treatments in Philadelphia, Pennsylvania beginning in November 2008. In early May 2009, she found out she was pregnant. On May 12, 2009, she told Mary Beth Jaditz, the office manager and wife of Dr. Jaditz, that she would no longer be going to Philadelphia and had been transferred back for local treatment. From that day on, Ms. Kelly's standing with her employers dropped precipitously.

The first major incident occurred on May 25, 2009. Ms. Kelly had been off that day to be with her sister while her sister gave birth. That evening, Ms. Kelly called Mrs. Jaditz and told her she needed the following day off because she had been up all day and night. Although Mrs. Jaditz had previously okayed the time off, she now balked at the request. She told Ms. Kelly it was inappropriate to take another day after the holiday weekend and that Dr. Jaditz was extremely upset about the request. She then told Ms. Kelly that Ms. Kelly was required to attend a meeting with Horizon's human resources manager, Diane Arnoni, the next day.

The meeting the next day was attended by Dr. Jaditz, Mrs. Jaditz, Ms. Arnoni, and Ms. Kelly. At the meeting, Ms. Kelly was attacked about various aspects of her job which had never previously been brought up. Dr. Jaditz also told her it was unacceptable that she requested the day off at the last minute and that she had already used up all her sick and personal time. Ms. Kelly told Dr. Jaditz that she had had to take time off previously for surgery, but he told her all the days were the same. Dr. Jaditz then told Ms. Kelly that a new nurse practitioner had been hired to start in July and that she would be taking over Ms. Kelly's hospital rounds responsibilities. Regarding this decision, he stated, "You are at a period of time in your life where you have certain health issues and a need for doctor's appointments." He also told her she was not reliable and that they needed someone "dependable." Ms. Arnoni then accused Ms. Kelly of abandoning her work at the end of the day and not finishing her assignments. She was then told she would no longer be working five days a week but rather four ten hour shifts. She was also told she would have to start filling out a time card each day and would now be paid as an hourly employee. When Ms. Kelly tried to approach Dr. Jaditz about the meeting the next day, the normally cordial doctor was cold and disengaged. When asked if her job was in jeopardy, Dr. Jaditz responded, "I'm not telling you there's the door, you're not fired...yet."

On June 1, 2009, Ms. Kelly told Mrs. Jaditz she was pregnant. She also applied to Ms. Arnoni for leave under the FMLA on her doctor's advice. Ms. Kelly had been told that, due to her prior medical conditions, she was considered a high risk pregnancy and may need to miss work intermittently. The next day, Ms. Arnoni denied her FMLA request. She told Ms. Kelly the request was premature and that she did not need FMLA since she could make her medical appointments for before or after work. Ms. Arnoni then went on to ask intrusive personal questions, including Ms. Kelly's plans for after the baby's birth. During that same discussion, Ms. Arnoni told Ms. Kelly that Dr. and Mrs. Jaditz had suspected Ms. Kelly was pregnant because she was acting "hormonal." That same day, Dr. Jaditz gave Ms. Kelly a document on Horizon letterhead that outlined a number of unilateral changes to her work agreement: she was now an hourly employee; she lost a week of vacation time; she would have to give two weeks notice for doctor's appointments; and she would have to physically attend seminars for CME credits. Ms. Kelly tried to discuss these changes with Dr. Jaditz but he flatly stated, "This is how it's going to be."

Ms. Kelly was very upset by these events. On June 4, 2009, she called out sick with symptoms of nausea and diarrhea. She then received harassing voicemails from Mrs. Jaditz and Ms. Arnoni wanting to know where she was. Ms. Arnoni also called Ms. Kelly's husband, asking him if she was really sick. After seeing her doctor, Ms. Kelly's attorney sent Horizon and Dr. Jaditz a notice of involuntary separation on June 5, 2009.

After exhausting all administrative prerequisites, Ms. Kelly filed this suit on August 14, 2011. In her amended complaint, she alleges violations of Title VII (count I), the FMLA (count II), the ADA (count III), and the PHRA (count IV). Horizon and Dr. Jaditz have filed a motion to dismiss. The motion has been briefed and is ripe for review.


Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). Detailed factual allegations are not required. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, mere conclusory statements will not do; "a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211. Instead, a complaint must "show" this entitlement by alleging sufficient facts. Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

As such, the inquiry at the motion to dismiss stage is "normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S. Ct. at 1949. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).


I. Title VII claim

Horizon and Dr. Jaditz argue that the Title VII claim should be dismissed because Ms. Kelly has failed to plead facts establishing that either of them are "employers" under the Act. They also argue she has not alleged enough facts to adequately plead either a hostile work environment nor a gender discrimination claim.

A. "Employer" under Title VII

42 U.S.C.A. § 2000e defines an "employer" as a:

[P]erson engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of Title 5), or (2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.

Company and its affiliates are considered "single employer" under Title VII when (1) company has split itself into entities with less than fifteen employees intending to evade Title VII's reach, or (2) parent company has directed subsidiary's discriminatory act of which employee is complaining, or (3) court would substantively consolidate entities in bankruptcy context. Nesbit v. Gears Unlimited, Inc., 347 F.3d 72 (3d Cir. 2003). To determine whether the "consolidation" theory applies, the Third Circuit has directed courts to adopt a "open-ended, equitable inquiry . . . to determine when substantively to consolidate two entities." Id. at 86-7. Relevant operational factors include (1) the degree of unity between the entities with respect to ownership, management (both directors and officers), and business functions ( e.g., hiring and personnel matters), (2) whether they present themselves as a single company such that third parties dealt with them as one unit, (3) whether a parent company covers the salaries, expenses, or losses of its subsidiary, and (4) whether one entity does business exclusively with the other. Id. at 87.

Here, Ms. Kelly has alleged enough facts to establish that Horizon and Dr. Jaditz are a single employer under either the "direction" or "consolidation" theories.

Under the theory that Horizon directed the discriminatory acts, she alleges that Dr. Jaditz works under the control and management of Horizon. Additionally, many of the alleged discriminatory acts were either committed directly by Ms. Arnoni or at least with her apparent approval. She is the one who denied Ms. Kelly's FMLA request. She was present at the meeting on June 26, 2009 where the complaints about Ms. Kelly were raised and the unilateral changes to the terms of her employment were first broached. Also, these changes to the work agreement were in a document on Horizon letterhead. Since Ms. Arnoni was Horizon's HR manager, it is reasonable to assume she played some role in effecting these changes either drafted the changes or signed off on them.

These same facts substantiate viewing Horizon and Dr. Jaditz as a single employer under the "consolidation" theory as well. Again, Ms. Arnoni was involved in the May 26, 2009 meeting and the revised work agreement was a Horizon document. These facts show a significant degree of unity ...

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