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Mary Ellen Condron v. Pennsylvania State Police

January 30, 2012


The opinion of the court was delivered by: Judge Munley


Before the court are Defendants Captain Robert Evanchick, Corporal Maleski, Linda Bonney, Lieutenant Whittaker, Joseph Foley, Amber Wilson, Michael Marrone, Darby Hand and the Pennsylvania State Police's motions to dismiss plaintiff's Amended Complaint.*fn1 (Docs. 12, 13). The parties have briefed the issues and these motions are ripe for disposition.

For the following reasons, defendants' motions will be granted in part and denied in part.


Plaintiff Mary Ellen Condron (hereinafter "plaintiff") filed an Amended Complaint against Defendants Captain Robert Evanchick, Maxine Johnson, Corporal Maleski, Linda Bonney, Lieutenant Whittaker, Joseph Foley, Amber Wilson, Michael Marrone, Darby Hand and the Pennsylvania State Police (collectively "defendants") on March 8, 2011. (See Doc. 10, Am. Compl.). Plaintiff alleges various claims under the Americans with Disabilities Act and 42 U.S.C. § 1983. These claims arise out of an employment dispute and encompass events spanning from 2006 to 2009.

During the time period in question, plaintiff worked for Defendant the Pennsylvania State Police (hereinafter the "PSP") as a police communications officer (hereinafter "PCO"). (Id. ¶¶ 7, 12). Plaintiff has diabetes. (Id. ¶ 13). Plaintiff received positive performance reviews with no disciplinary record during the first few years of her employment. (Id. ¶¶ 14-15). Plaintiff went on parental leave from August 9, 2005 to February 9, 2006. (Id. ¶¶ 15-16).

Plaintiff sought additional parental leave some time after February 24, 2006, and, although the PSP initially denied her request, she was ultimately granted three months of additional leave from March 20, 2006 to June 19, 2006. (Id. ¶¶ 17-20). After March 20, 2006, plaintiff alleges that Sergeant Richard Krewitz requested that petitioner submit a list of her medications. (Id. ¶ 21). Plaintiff suspects that Defendant Amber Wilson (hereinafter "Wilson"), who worked as a PCO at the PSP, and Defendant Joseph Foley (hereinafter "Foley"), who worked as a PCO at the PSP and served as the steward for petitioner's union, somehow encouraged Krewitz's request. (Id. ¶¶ 10, 22).

On May 12, 2006, while plaintiff was on her extended parental leave, Defendant Corporal Maleski (hereinafter "Maleski") informed her that she must sign a release prior to returning to work. (Id. ¶ 23). Plaintiff alleges that Maleski hurried her, denying her the necessary time to review the document. (Id. ¶ 24). Plaintiff later learned that the release was for her medical records. (Id. ¶ 25). Plaintiff believes that Maleski deliberately misrepresented the nature of the release. (Id. ¶ 26). Additionally, prior to her return, Defendant Captain Robert Evanchick (hereinafter "Evanchick") ordered that plaintiff receive medical clearance to work alone at her desk. (Id. ¶ 27).

Plaintiff's medical records were subsequently given to Defendants Michael Marrone (hereinafter "Marrone") and Darby Hand (hereinafter "Hand"), who are both physicians and medical directors for the PSP. (Id. ¶¶ 11, 28). Marrone and Hand opined that plaintiff should only work if accompanied by another PCO or some other PSP personnel during her shift. (Id. ¶ 28). Plaintiff contends this opinion was made at the behest of Evanchick, Maleski and "others." (Id.)

Upon return to work on June 20, 2006, plaintiff was placed on the accommodated schedule suggested by Hand and Marrone. (Id. ¶¶ 29-30). Defendants allegedly implemented this accommodated schedule because plaintiff's personal physician had not provided clearance for her to work alone. (Id. ¶ 31). Although plaintiff eventually obtained a release from her physician, plaintiff remained on the accommodated work schedule and was not returned to the "normal" scheduling status enjoyed by other PSP employees. (Id. ¶¶ 32-33).

Plaintiff learned from a union representative that other PCOs, plaintiff suspects to be Wilson and Foley, filed grievances against her on the basis that she received preferential treatment. (Id. ¶ 35). In late June or early July 2006, plaintiff alleges that Wilson and Foley posted demeaning cartoons portraying plaintiff as a "crybaby." (Id. ¶ 36). Plaintiff filed a formal report with Sergeant Richard Krewitz alleging harassment based on her diabetes. (Id. ¶¶ 37-38). An internal investigation concluded that the cartoons were harassing, but, despite plaintiff's suspicions, there could be no way of knowing who created them.*fn2

On June 29, 2006, plaintiff filed a grievance as to why she was placed on an accommodated schedule. (Id. ¶ 34). Under the accommodated schedule, plaintiff could not work overtime and was ineligible for shift differential pay. (Id. ¶ 42). A hearing was scheduled on September 13, 2006 for plaintiff's grievance as well as the grievances filed by other PCOs against plaintiff, but the hearing was never held. (Id. ¶ 44). Plaintiff received a letter dated September 26, 2006 from Evanchick stating that her scheduling accommodation could not be continued and that her position would be eliminated effective October 6, 2006. (Id. ¶ 46). The September 26, 2006 letter gave plaintiff until October 3, 2006 to decide whether to take a lower paying clerical position, a PCO job far away from her home, retire, resign, or attempt to go out on disability. (Id. ¶ 47). Plaintiff met with union officials to discuss contesting the elimination of her position. (Id. ¶¶ 48-49). Plaintiff did not make a decision as requested in Evanchick's letter, and after a series of successive extensions in time to make a decision, plaintiff was placed on an extended period of unpaid leave. (Id. ¶¶ 50-55). Through these extensions and subsequent placement on unpaid leave status, plaintiff argues that defendants somehow "manipulated work rules" in a scheme to force her out of her job.*fn3

(Id. ¶ 55).

Plaintiff filed two grievances after being placed on unpaid leave status, the first on October 23, 2006 and the second on November 27, 2006. (Id. ¶¶ 53, 56). A hearing was held on January 23, 2007.*fn4 (Id. ¶ 57). In April 2007, plaintiff was placed on an indefinite leave of absence until the grievance situation was resolved. (Id. ¶ 58). In June 2007, plaintiff alleges that her "eliminated" position was filled by someone else. (Id. ¶ 59).

On October 25, 2007, plaintiff and the PSP agreed that plaintiff could return to work with back pay and full benefits if she was cleared by an independent medical doctor who specializes in diabetes. (Id. ¶¶ 61-62). After some initial difficulty in agreeing on a doctor, plaintiff went to Dr. Robert Gabbay of the Hershey Medical Center, who cleared her to work as a PCO on October 1, 2008. (Id. ¶¶ 68-69).

Dr. Gabbay offered to review other medical files sent to him because plaintiff's file was incomplete. (Id. ¶ 70). Plaintiff alleges that Defendants Evanchick, Linda Bonney (hereinafter "Bonney") and Maxine Johnson used this offer as a pretext to threaten termination if plaintiff did not send her complete medical file to Dr. Gabbay. (Id. at 71). Nevertheless, plaintiff complied and was reinstated without restrictions on January 5, 2009. (Id. ¶¶ 72-73).

Plaintiff alleges that, despite her reinstatement, some issues presented in the grievances were left unresolved, and that "her co-workers, including Wilson and Foley, continued to create an overtly and covertly hostile atmosphere, and plaintiff continued to be scrutinized excessively and held to a different standard than similarly-situated employees who had not engaged in protected activities." (Id. ¶ 74).

Plaintiff underwent surgery in June 2009 and did not return to work until September 2009. (Id. ¶ 77). Defendant Lieutenant Whittaker (hereinafter "Whittaker") commenced disciplinary actions against plaintiff for leave abuse. (Id. ¶ 78). Plaintiff maintains that she did not abuse her leave because her back leave from her two year absence was not restored. (Id.) Plaintiff pleads that Whittaker also threatened her with a criminal investigation and demanded that she change her hours or quit her job as an emergency call center employee with Lackawanna County. (Id. ¶¶ 80-81). Whittaker also commenced disciplinary action against plaintiff for tardiness, allegedly at the behest of Wilson. (Id. ¶ 79). Furthermore, plaintiff alleges that Foley participated in precipitating Whittaker's demand that plaintiff change her hours at the Lackawanna County call center by "feeding the information to Whittaker for him to use against her." (Id. ¶ 82).

Plaintiff was notified that a pre-disciplinary conference regarding her use of leave, tardiness and alleged conflict of interest was scheduled for December 8, 2009. (Id. ¶ 83). Prior to this conference plaintiff resigned. (Id. ¶ 84). Plaintiff alleges that, as her supervisors, Maleski and Evanchick were aware of and acquiesced in all matters relating to plaintiff's past employment disputes with the PSP. (Id. ¶ 85).

Plaintiff filed a Complaint on December 8, 2010, (Doc. 1), and an Amended Complaint on March 8, 2011, (Doc. 10). In her Amended Complaint, plaintiff alleges claims under the Americans with Disabilities Act as well as the Civil Rights Act, 42 U.S.C. § 1983. Defendants Foley, Wilson, Bonney and Whittaker filed a motion to dismiss plaintiff's Amended Complaint. (Doc. 12). Similarly, Defendants the PSP, Evanchick, Maleski, Marrone and Hand filed a separate motion to dismiss plaintiff's Amended Complaint. (Doc. 13). The issues were briefed and this matter is ripe for disposition.


Plaintiff asserts claims under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and 42 U.S.C. § 1983. The court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides that "[t]he district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

Legal Standard

Defendant brings this motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6).*fn5 When a 12(b)(6) motion is filed, the sufficiency of the allegations in the complaint are tested. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, "'under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.'" Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' [each] necessary element" of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 500 U.S. 544, 556 (2007)). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35. In evaluating the sufficiency of a complaint the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

The federal rules require only that plaintiff provide "'a short and plain statement of the claim showing that the pleader is entitled to relief,'" a standard which "does not require 'detailed factual allegations,'" but a plaintiff must make "'a showing, rather than a blanket assertion, of entitlement to relief' that rises 'above the speculative level.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (quoting Twombly, 550 U.S. at 555-56). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). Such "facial plausibility" exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "[T]he factual detail in a complaint [cannot be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232 (citation omitted).

The Supreme Court has counseled that a court examining a motion to dismiss should, "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. Ct. at 1950. Next the court should make a context-specific inquiry into the "factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief." Id. at 1951.


Nine defendants seek dismissal from the case.*fn6 Defendants attack plaintiff's Amended Complaint on the grounds that it fails to state a claim for which relief can be granted. Defendants more specifically contend that the claims in Counts I and II contain obvious defects as they are either time barred by the statute of limitations or insufficient under the pleading standards of the Federal Rules of Civil Procedure. The court will examine each count identified in the Amended Complaint to determine whether plaintiff sufficiently states a claim for which relief can be granted.

A. Claims Under the Americans With Disabilities Act

In Count I of the Amended Complaint, plaintiff alleges violations of the Americans with Disabilities Act (hereinafter "ADA") generally against all defendants. (Doc. 10, Am. Compl. ¶¶ 86-91). In support of this claim, plaintiff lists several instances in which defendants allegedly discriminated against her because of her medical condition. Although plaintiff is vague with respect to the specific legal theory on which her ADA claims rest, the enumerated facts essentially amount to claims of hostile work environment, disparate impact and retaliation under Title I of the ADA. See 42 U.S.C. §§ 12111-12117.

Title I of the ADA imposes liability on covered entities for discriminating against a qualified individual with disabilities. See 42 U.S.C. § 12112(a). A "covered entity" is defined for the purposes of Title I of the ADA as "an employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. § 12111(2). It is well established that Title I of the ADA does not impose liability on individual employees as individuals are not included in the definition of covered entity. O'Donnell ...

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