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Thomas Freeman v. Philadelphia Housing Authority

August 8, 2012


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


Currently pending before the Court are (1) the Motion to Dismiss of Defendant Fred Pasour, and (2) the Motion to Dismiss of Defendants Philadelphia Housing Authority and Stacey Thomas. For the following reasons, the Motions are granted in part and denied in part.


According to the facts set forth in the Complaint, Plaintiff Thomas Freeman began working at the Philadelphia Housing Authority ("PHA") in 1992, and was continuously employed during that period of time as an Asset Manager I. (Compl. ¶ 17.) During his tenure at PHA, Plaintiff suffered from diabetes and, in 2006, began experiencing problems with his diabetic foot. (Id. ¶¶ 19--20.) Defendants were purportedly aware of Plaintiff's diabetic condition since at least 2006. (Id. ¶ 20.)

On May 8, 2009, Plaintiff left work early with a swollen foot and was admitted to Temple University Hospital that same day. (Id. ¶ 21.) The physicians there diagnosed him with a diabetic foot injury and instructed him to stay off the foot for one week. (Id. ¶ 22.) Subsequently, on May 15, 2009, Defendant Stacey Thomas, PHA's Labor Relations Coordinator, received a Disability Statement from Dr. Leslie Robinson at Temple University Hospital certifying that Plaintiff was diagnosed with "Diabetic Foot Injury." (Id. ¶ 23.) Dr. Robinson cleared Plaintiff to return to work without restrictions on May 18, 2009, and Plaintiff in fact returned to work on that date. (Id.)

On June 5, 2009, while visiting PHA rental units, performing inspections, and collecting rent at a PHA development, Plaintiff began to experience extreme foot pain. (Id. ¶ 24.) He informed a manager that he was not feeling well and requested to leave work a half hour early. (Id.) The following day, Plaintiff went to the emergency room at Temple University Hospital, where he lost consciousness. (Id. ¶ 25.) When he woke up, his sugar level was very high and his left foot was swollen. (Id.) Temple physicians explained to him that it was necessary to amputate some of his toes. (Id. ¶ 26.) On June 7, 2009, Plaintiff underwent surgery and had several toes on his left foot amputated. (Id. ¶ 27.) Defendant Thomas was informed about Plaintiff's condition the following day, at which time Thomas sent Plaintiff a letter acknowledging his request for a leave of absence and informing him of his rights and obligations under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. (Id. ¶¶ 28--29.) Defendants also advised Plaintiff that he was required to submit a medical certification form in order to qualify for FMLA leave. (Id. ¶ 29.)

After the initial surgery, the Temple physicians discovered that Plaintiff had gangrene and required further surgeries for more amputations. (Id. ¶ 30.) Two more surgeries were subsequently performed, on June 9, 2009 and June 11, 2009 respectively, resulting in the amputation of all five toes on his left foot. (Id. ¶ 31.) On June 12, 2009, Plaintiff submitted his Request for Leave of Absence form and the "Certification of Health Care Provider" form to Defendant Thomas, signed by his physician and certifying that Plaintiff suffered a serious medical condition and was unable to do any work for three to four months. (Id. ¶ 32.) Plaintiff was fully discharged from Temple University Hospital during the last week of June 2009, and was fitted with a boot that enabled him to walk with the aid of crutches or a cane. (Id. ¶¶ 33--34.)

Almost immediately upon discharge from Temple University Hospital, Plaintiff was admitted to Hopkins Rehabilitation for approximately twenty days in order to rehabilitate his left leg and foot. (Id. ¶ 35.) On July 14, 2009, he was discharged from Hopkins Rehabilitation. (Id. ¶ 36.) Upon leaving Hopkins, Plaintiff contacted and spoke with Defendant Thomas about his condition, and informed Thomas that he was willing and able to return to work at the PHA. (Id. ¶ 38.) Thomas advised Plaintiff that his job would remain available to him for up to one year and that Plaintiff could continue to use any sick and vacation time he had accumulated while on leave. (Id. ¶ 39.) Upon the recommendation of his physician, Plaintiff then requested a desk job as an accommodation for a couple of weeks so that his wound would fully heal. (Id.) Plaintiff believed that this requested accommodation would not have imposed an undue hardship on Defendant PHA since he could effectively complete his duties as Asset Manager I while sitting at a desk. (Id. ¶ 40.) Nonetheless, Thomas informed Plaintiff that she would "get back to him" regarding the accommodation. (Id. ¶ 41.)

In or around October or November 2009, Plaintiff was fitted with a new boot that enabled him to walk without the aid of crutches or a cane. (Id. ¶ 37.) During the same time period, and after several conversations, Thomas informed Plaintiff that he would have to speak with Defendant Fred Pasour-PHA's Acting General Counsel-about being cleared to return to work. (Id. ¶¶ 11, 42.) In January 2010, after several unsuccessful attempts, Plaintiff finally got through to Mr. Pasour, who asked Plaintiff if he could walk. (Id. ¶ 43.) Plaintiff responded that he could walk and that his physician had cleared him to return to work. (Id.) Pasour, however, informed Plaintiff that he could not return to work until PHA's physician cleared him, and instructed Plaintiff to schedule an appointment with Defendant Thomas to be seen by PHA's physician. (Id. ¶ 44.)

From January to February 2010, Plaintiff made several requests to Defendant Thomas to schedule an appointment, and also attempted to call Defendant Pasour, all to no avail. (Id. ¶ 45.) On February 17, 2010, Plaintiff received a letter from Defendant Pasour that his "Family Medical Leave of Absence" had "expired." (Id. ¶ 46.) According to Plaintiff, he was never informed by PHA that he was on FMLA leave and, in fact, was unaware of his FMLA status until receipt of this letter. (Id.) Indeed, he was repeatedly informed by Defendants, since June 2009, that he could return to work when cleared. (Id.) Nonetheless, the letter went on to advise Plaintiff that he was being terminated from employment, effective February 19, 2010. (Id. ¶ 47.) Ultimately, following his termination, Plaintiff underwent amputation of his left leg slightly below the knee. (Id. ¶ 19.)

On May 3, 2011, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") for disability discrimination and retaliation. (Id. ¶ 48.) The Complaint was jointly filed with the Pennsylvania Human Relations Commission ("PHRC"). (Id.) On March 26, 2012, the EEOC issued a Right to Sue letter. (Id. ¶ 49.)

Plaintiff initiated the current litigation on March 21, 2012, setting forth seven causes of action as follows: (1) violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 1201, et seq. against Defendant PHA (Count I); (2) retaliation under the ADA against Defendant PHA (Count II); (3) failure to accommodate under the ADA against Defendant PHA (Count III); (4) violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., against Defendant PHA (Count IV); (5) interference under the FMLA against Defendants Thomas and Pasour (Count V); (6) violation of the Pennsylvania Human Relations Act ("PHRA"), 42 Pa.C.S. § 951, et seq., against Defendant PHA (Count VI); and (7) aiding and abetting discrimination and retaliation under the PHRA against Defendants Thomas and Pasour (Count VII). (Compl. ¶¶ 50--87.) Along with compensatory damages for emotional distress, loss of earnings, loss of future earning power, back pay, front pay, interest, and liquidated damages, Plaintiff also seeks punitive damages due to the alleged "outrageous, malicious, wanton, willful, reckless and intentional[]" conduct by Defendants. (Id. ¶¶ 88--91.)

On June 6, 2012, Defendant Fred Pasour moved to dismiss Counts V and VII of Plaintiff's Complaint and Defendants PHA and Stacey Thomas moved to dismiss the entirety of the Complaint. Plaintiff responded to both Motions on June 19, 2012, and Defendant Pasour filed a Reply Brief on June 29, 2012. The Motions are now ripe for judicial review.


Pursuant to Federal Rule of Civil Procedure 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 also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. It emphasized that it would not require a "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In the subsequent case of Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court enunciated two fundamental principles applicable to a court's review of a motion to dismiss for failure to state a claim. First, it noted that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Thus, although "[Federal] Rule [of Civil Procedure] 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678--79. Second, the Supreme Court emphasized that "only a complaint that states a plausible claim for relief survives a motion ...

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