SALLY A. SANTEE
LEHIGH VALLEY HEALTH NETWORK, INC. et al.
REPORT AND RECOMMENDATION
THOMAS J. RUETER, Magistrate Judge.
Presently before the court is the motion to dismiss plaintiff's First Amended Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 9) (the "Motion") filed by defendants Lehigh Valley Health Network, Inc., Suzanne Goodell, Jaime Brogan, Zelda Greene, Susan Lawrence, Terry Capuano, Jeri Lemanek and Kathleen Mudri (collectively, "Defendants"), plaintiff's response thereto (Doc. 14), and Defendants' reply (Doc. 16). For the reasons explained below, the court recommends that the motion be granted in part and denied in part.
Plaintiff, Sally A. Santee, is a former employee of defendant Lehigh Valley Health Network ("LVHN"). In her First Amended Complaint (Doc. 8) (the "Complaint"), plaintiff alleges, inter alia, that Defendants discriminated against her in violation of her rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), as amended by the ADA Amendments Act of 2008 ("ADAAA") and the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"). Plaintiff avers that she is disabled within the meaning of the ADA and that her disabilities are severe depression and chronic fatigue, which substantially limit the major life activities of concentrating and the ability to process information quickly during intermittent flare-ups of her condition. (Compl. ¶ 7.) In her response to the Motion and at oral argument held on November 13, 2013, plaintiff's counsel represented that plaintiff had withdrawn certain of the counts presented in the Complaint. The only remaining counts are: (1) Count II, disability discrimination under the ADA; (2) Count III, retaliation under the ADA; (3) Count III, hostile work environment under the ADA; and (4) Count V,  retaliation under the FMLA. Thus, the court will address the motion to dismiss only as it pertains to Counts II, III and V of plaintiff's Complaint.
On October 30, 2006, plaintiff became employed by LVHN as a medical transcriptionist, working for Lehigh Valley Heart Specialists. (Compl. ¶ 17.) Plaintiff claims that on or about September 21, 2009, she applied for intermittent FMLA leave with LVHN's Employee Health Department. Id . ¶ 20. According to plaintiff, she was advised that the Employee Health Department required more information. Id . ¶¶ 15, 21. On or about November 16, 2009, plaintiff was transferred to the HIM Medical Records Transcription Department of LVHN, reporting to defendant Suzanne Goodell, who was the Director, Ambulatory/OP Medical Records and Transcription. Id . ¶¶ 10, 27. Plaintiff claims that she followed up regarding her FMLA request in January 2010, but was informed that the paperwork was outdated. Id . ¶¶ 31-35. Plaintiff filed another FMLA application on February 18, 2010, which was denied on March 13, 2010. Id . ¶ 36-38. On April 2, 2010, plaintiff filed another FMLA application, which was approved on April 19, 2010. Id . ¶ 39.
Plaintiff alleges that shortly after she began working under Ms. Goodell's supervision, Ms. Goodell discovered that plaintiff had applied for intermittent FMLA leave. Id . ¶ 40. After learning this, Ms. Goodell allegedly "began treating her less favorably than her similarly situated, non-disabled co-workers by subjecting her to different standards for her work, changing the expectations of her position, personally attacking her character, and writing her up for absences." Id . ¶ 41. See id. ¶¶ 42-46 (alleged harassing statements by Ms. Goodell to plaintiff). In February and March 2010, Ms. Goodell issued written warnings to plaintiff regarding several unexcused absences. See id. ¶¶ 47-59.
On April 30, 2010 and May 4, 2010, plaintiff complained to Jaime Brogan, an employee in LVHN's Human Resources Department "about Ms. Goodell's treatment of her." Id . ¶¶ 11, 63. According to the Complaint, plaintiff informed Ms. Brogan that "Ms. Goodell was treating [plaintiff] differently since she first requested FMLA and stated that she was in fear of Ms. Goodell's escalating behavior, " but Ms. Brogan "did not do anything to help resolve the situation." Id . ¶¶ 63-64. Plaintiff avers that on April 30, 2010, plaintiff "hand-delivered written complaints to Mses. Brogan and Goodell about how Ms. Goodell was treating her due to her FMLA requests and her disabilities." Id . ¶ 68. On May 28, 2010, plaintiff claims that she sent an email to Ms. Goodell with blind copies to defendants Zelda Greene, LVHN Administrator/Health Information Management, Susan Lawrence, LVHN Vice President of Care Continuum, Terry Capuano, LVHN's Chief Operating Officer, and Ms. Brogan "which rebutted write-ups that Ms. Goodell had issued to [plaintiff] as well as Ms. Goodell's final and last and final [sic] warning. [Plaintiff's] email complained that Ms. Goodell had been treating her this way since she first requested FMLA." Id . ¶¶ 12-14, 65. Plaintiff claims that "Mses. Brogan, Greene, Lawrence, and Capuano did not do anything to help resolve the situation." Id . ¶ 66. LVHN terminated plaintiff's employment on June 30, 2010. Id . ¶ 68.
On April 18, 2011, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging harassment and discrimination based on her race, color, religion, and disability, and retaliation for engaging in protected conduct. On June 28, 2013, plaintiff filed the present action. (Doc. 1.)
When considering a motion to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus , 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555-56 (2007)). To survive dismissal, "a 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, 678 (2009) (quoting Twombly , 550 U.S. at 570). This requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555. The Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief." This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."
Fowler v. UPMC Shadyside , 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations and quotations omitted).
A. ADA Claims
For plaintiff's ADA claims to be timely, the alleged unlawful employment practice would have needed to occur and to have been communicated to plaintiff within 300 days prior to the filing of her Charge of Discrimination with the EEOC. Aubrey v. City of Bethlehem, Fire Dept., 466 F.App'x 88, 92 (3d Cir. 2012) (citing 42 U.S.C. § 2000e-5(e)(1); Callowhill v. Allen-Sherman-Hoff Co. , 832 F.2d 269, 271 (3d Cir. 1987) ("In a state such as Pennsylvania which has an agency performing functions similar to those of the EEOC, the time for filing is extended to 300 days....")). Plaintiff filed her charge with the EEOC on April 18, 2011. (Resp. at 1.) The parties correctly agree that the relevant statute of limitations period for plaintiff's ADA claims runs back 300 days from April 18, 2011 to June 22, 2010. In other words, any ADA claim based on a discrete act that occurred before June 22, 2010 is time-barred.
1. Count II - ADA Disability Discrimination
To present a prima facie case of disability discrimination under the ADA, a plaintiff must establish that she (1) has a "disability, " (2) is a "qualified individual, " and (3) has suffered an adverse employment action because of that disability. Turner v. Hershey Chocolate U.S. , 440 F.3d 604, 611 (3d Cir. 2006) (citing Buskirk v. Apollo Metals , 307 F.3d 160, 166 (3d Cir. 2002); Gaul v. Lucent Techs. Inc. , 134 F.3d 576, 580 (3d Cir. 1998)). Under the ADA, the term "disability" means: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1). Major life activities "include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." 42 U.S.C. § 12102(2)(A)(1).
At the motion to dismiss stage, however, this court must determine whether plaintiff pleaded she is an individual with a disability, not whether plaintiff has established a prima facie case of disability discrimination. Fowler v. UPMC Shadyside , 578 F.3d 203, 213 (3d Cir. 2009) ("Even post-Twombly, it has been noted that a plaintiff is not required to establish the elements of a prima facie case but instead, need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.'"). Rather, the court must accept as true all of the factual allegations contained in the complaint and draw reasonable inferences in favor of the plaintiff. Iqbal , 556 U.S. at 678. To survive the motion to dismiss, the Complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." See id.
Defendants contend that plaintiff has not plausibly alleged a disability under the ADA. See Mot. 12-16. This court disagrees. In her Complaint, plaintiff alleges that she is disabled within the meaning of the ADA because she suffers from an impairment that substantially limits one or more major life activities, has a record of such an impairment, and/or is regarded as having such an impairment. (Compl. ¶ 6.) Plaintiff further represents that her "disabilities are severe depression and chronic fatigue, which substantially limit major life activities, including concentrating and the ability to process information quickly during intermittent flare-ups of her conditions." Id . ¶ 7. Depression and other mental disorders may qualify as impairments under the ADA. Bennett v. Unisys Corp. , 2000 WL 33126583, at *4 (E.D. Pa. Dec. 11, 2000); Shannon v. City of Philadelphia , 1999 WL 1065210, at *2 (E.D. Pa. Nov. 23, 1999); Sarko v. Penn-Del Directory Co. , 968 F.Supp. 1026, 1035 (E.D. Pa. 1997). Chronic fatigue syndrome also may be a disability under the ADA. See Valle-Arce v. Puerto Rico Ports Auth. , 651 F.3d 190, 197-202 (1st Cir. 2011) (finding employee who suffered from chronic fatigue syndrome met prima facie case for failure to accommodate under ADA and met prima facie case for retaliation under ADA). Concentrating is listed as a major life activity in the ADA. See 42 U.S.C. § 12102(2)(A)(1). Thus, plaintiff has adequately alleged that she has a disability.
Defendants also argue that plaintiff has not plausibly alleged that any possible adverse employment action, including her termination, "had anything to do with her alleged depression and/or chronic fatigue." (Mot. at 15-16.) The court finds, however, that plaintiff has alleged sufficient facts to plausibly support the conclusion that she was terminated because of her disability. Plaintiff alleges that she suffered from a disability, that she was treated less favorably than similarly situated employees after her supervisor learned that she had applied for FMLA leave because of her disabilities, that she complained about her supervisor's treatment of her, and that her employment was terminated by ...