The opinion of the court was delivered by: McLaughlin, J.
This case arises out of a series of grievances that the plaintiff had with his former employer. The operative complaint ("Am. Compl."), filed on January 13, 2012, brings claims for employment discrimination under federal and Pennsylvania law, related to a series of interactions in 2008 in which the plaintiff alleges he was denied an opportunity to transfer because of his disability. The employer has moved to dismiss and the Court will grant the defendant's motion.
Stodulski filed this action on June 15, 2010 against
Medline Industries, Inc. ("Medline") alleging employment discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951 et seq. The plaintiff simultaneously requested appointment of counsel by the Court. The plaintiff amended his complaint on July 2, 2010 to assert claims against Michael Sjoerdsma, Medline's President of Sales, and Frank Castro, Medline's Vice President for Pennsylvania and Southern New Jersey. Castro moved to dismiss the first amended complaint on August 9, 2010. The next day, this matter was stayed pending a potential referral of the plaintiff's case to the District's employment litigation panel.
After attempts to obtain counsel for the plaintiff were unsuccessful, the case was removed from suspense on October 1, 2010. On December 10, 2010, the case was returned to suspense during a related Department of Labor investigation. The plaintiff informed the Court on July 22, 2011 that the investigation had concluded, and the case was taken out of suspense on August 8, 2011. Medline and Sjoerdsma then separately moved to dismiss the amended complaint. The Court found that all allegations of malfeasance occurring before January 23, 2008 were barred by the applicable statute of limitations, and granted all three motions to dismiss with prejudice except with respect to the plaintiff's claims dating to March 2008, in which the plaintiff requested a transfer. The plaintiff was permitted to file another amended complaint setting forth the factual basis for any claims against Medline that were not time-barred. Stodulski v. Medline Indus., Inc., No. 10-2870, 2011 WL 5942127 (E.D. Pa. Nov. 28, 2011).
The plainitff then filed the operative complaint on January 13, 2012. The second amended complaint again argues that Medline failed to facilitate the plaintiff's transfer and repeatedly states that the defendant failed to provide the plaintiff with a reasonable accommodation in the form of a transfer. The defendant moved to dismiss this pleading on February 7, 2012, which the plaintiff opposed on March 9.
II. Allegations of the Plaintiff*fn1
The plaintiff began working in the sales department of
Medline in 2003 and disclosed that he was an individual diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and treated with the prescription drug Adderall. Upon being trained, the plaintiff worked in the sales department for Medline in its Pennsylvania and Southern New Jersey territory. After a series of negative interactions with his supervisor, Frank Castro, the plaintiff met with Castro's supervisor, Michael Sjoerdsma, to discuss his concerns and warn Sjoerdsma that he was planning on filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Stodulski agreed that Medline could have an opportunity to deal with the matter internally, and Sjoerdsma told him in January 2008 that he would be permitted "to seek other opportunities within Medline." Stodulski v. Medline Indus., Inc., No. 10-2870, 2011 WL 5942127 at *1-*2 (E.D. Pa. Nov. 28, 2011); Am. Compl. 2-3.
On March 20, 2008, the plaintiff discussed a sales opportunity with Medline's senior vice president for the west coast, David Struve, and the plaintiff "was encouraged to follow up with" him to obtain more details. Throughout the spring and summer of 2008 it was explained to the plaintiff that the sales territory of southern California would result in a 50% reduction in his earnings. The plaintiff argues that in offering such a transfer, the defendant "failed to provide a reasonable accommodation in the form of a transfer," as a result "rendering the denial or receipt of the transfer as an adverse employment action." Am. Compl. 3.*fn2 The plaintiff ultimately filed a charge of discrimination with the EEOC on November 18, 2008.
To state a prima facie case for discrimination under the ADA,*fn3 a plaintiff must allege that he has a disability, is a qualified individual, and suffered an adverse employment action because of that disability. Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006). The defendant assumes for the sake of argument that the first two criteria are met. It argues that the plaintiff has not adequately pled the third element because the decision not to transfer was the plaintiff's own, and because the plaintiff has not pled facts that, if proven, would demonstrate that the plaintiff had requested the transfer because of his disability. The Court addresses each of these arguments in turn.
The plaintiff has not shown that he suffered an adverse employment action on account of the transfer that he discussed, but never effected, with the defendant. In its Memorandum and Order of November 28, 2011, the Court noted that the plaintiff had failed to identify any adverse action taken against him in March 2008. 2011 WL 5942127, at *4 ("[T]he plaintiff alleges no actions taken by Medline, Sjoerdsma, or Castro that were adverse."). The operative complaint adds details as to the discussions the plaintiff had with Medline's representative for the southern California sales territory, but relies on the same theory to argue that he suffered an adverse employment action. The allegations of the plaintiff merely show that he requested permission to seek out other opportunities within the firm--which was given--and when the details of the transfer position he had sought were not amenable to him, the plaintiff elected not to pursue it. See Pl.'s Opp. 1 (noting that his "choice was to take the transfer and 50% reduction of income or remain in the current territory"). As the Court concluded in its earlier opinion, these circumstances do not constitute an adverse employment action. 2011 WL 5942127, at *4 (citing Schofield v. Metropolitan Life Ins. Co., 252 F. App'x 500, ...