United States District Court, Eastern District of Pennsylvania
JOEL H. SLOMSKY, J.
I . INTRODUCTION
From 2004 to 2011, Plaintiff Stacy Amoroso (“Plaintiff”) was an employee of the Bucks County Court of Common Pleas (“BCCP”) in Bucks County, Pennsylvania. While employed there, her supervisors were Frank Filipovits (“Defendant Filipovits”) and Laura LoBianco (“Defendant LoBianco”). From April 2010 to the fall of 2010, Plaintiff took an approved leave of absence from her job under the Family Medical Leave Act (“FMLA”). She returned to work in the fall of 2010 and was terminated in May 2011.
On February 7, 2013, Plaintiff instituted this action against Defendants BCCP, the County of Bucks (“Bucks County”), and individual Defendants Filipovits and LoBianco. (Doc. No. 1.) On August 1, 2013, Plaintiff filed a Second Amended Complaint (“SAC”). (Doc. No. 40.) In her SAC, Plaintiff alleges eight claims in six counts. She alleges two separate claims in both Counts I and II. In Count I, Plaintiff alleges interference and retaliation under the FMLA against individual Defendants Filipovits and LoBianco, and in Count II she alleges interference and retaliation under the FMLA against Defendants BCCP and Bucks County. In Count III, she alleges a violation of her rights under the Rehabilitation Act against Defendants BCCP and Bucks County; in Count IV, she alleges a violation of her equal protection rights against Defendants Filipovits and LoBianco; in Count V, she alleges a violation of her rights under the Pennsylvania Human Relations Act (“PHRA”) against Defendants Filipovits and LoBianco; and finally, in Count VI, she alleges intentional infliction of emotional distress by Defendants Filipovits and LoBianco.
Defendants BCCP and Bucks County filed separate Motions to Dismiss. (Doc. Nos. 44, 49.) Individual Defendants Filipovits and LoBianco filed a joint Motion to Dismiss. (Doc. No. 48.) These Motions are presently before the Court. For reasons that follow, the Motions to Dismiss will be granted in part and denied in part.
II . BACKGROUND
The following facts are alleged in the SAC. (Doc. No. 40.) In March 2004, Plaintiff was hired by the Bucks County Court of Common Pleas (“BCCP”). (Doc. No. 40 at ¶¶ 17-18.) Plaintiff suffers from Attention Deficit Hyperactivity Disorder (“ADHD”), and advised her employers of this disorder in 2010. (Id. at ¶¶ 15-16.)
Between March 2004 and November 2005, Plaintiff worked as a clerk for BCCP. (Id. at ¶ 18.) In November 2005, she was promoted to Domestic Hearing Officer in the Domestic Relations Division. (Id.) She worked as a Domestic Hearing Officer from November 2005 to May 20, 2011. (Id. at ¶¶ 18-19.) Defendant Filipovits also worked as a Domestic Hearing Officer during this time. (Id. at ¶ 20.) Defendant Laura LoBianco served as Director of the Bucks County Domestic Relations Division. (Id. at ¶ 9.)
In late 2007, Defendant Filipovits smacked Plaintiff on her buttocks. (Id.) Thereafter, Plaintiff was called into Defendant LoBianco’s office and told that she was “gossiping and disrupting the office.” (Id. at ¶ 29.) Defendant LoBianco forced Plaintiff to write a letter regarding the incident. (Id. at ¶ 27.) Defendant LoBianco was not satisfied with the letter, so she forced Plaintiff to write an additional letter stating that the incident had been resolved. (Id. at ¶ 31.) As a result of the incident, Defendant Filipovits did not receive a promotion. (Id. at ¶ 32.) Plaintiff alleges that Defendant Filipovits held a grudge against her for the sexual misconduct, and Defendant LoBianco held a grudge against her for the failed promotion of Defendant Filipovits. (Id. at ¶¶ 35-36.)
Around January 2010, Plaintiff was approved for intermittent FMLA leave as a result of a “serious medical condition.” (Id. at ¶ 37.) In April 2010, Plaintiff took full-time FMLA leave. (Id. at ¶ 38.) An employee of Defendant Bucks County’s Human Resources Department told Plaintiff that “they were trying to build a paper trail, ” and that she should “take a break.” (Id. at ¶ 39.) Before starting her FMLA leave, Plaintiff was told that she had to re-train for her job. (Id. at ¶ 40.) She was then subjected to grammar training and other re-training in positions she had previously held as a clerk. (Id. at ¶ 41.)
On September 16, 2010, Plaintiff returned to work from FMLA leave. (Id. at ¶ 42.) Prior to her return, Plaintiff requested a reasonable accommodation for her “depression and anxiety” by being reassigned to a different supervisor. (Id. at ¶ 42.) This request was denied. (Id.) When she returned to work, Plaintiff was scrutinized regularly and unnecessarily, and subjected to “unwarranted criticism and discipline.” (Id. at ¶ 43.) She was not given the opportunity to settle back into her position, and Defendants piled work on her almost immediately. (Id. at ¶ 47.)
Before her actual return and continuing through her termination, Defendants engaged in a pattern of antagonism against Plaintiff. (Id. at ¶ 49.) First, Defendants created an Action Plan to “create a bogus paper trail to justify terminating Plaintiff.” (Id. at ¶ 60.) Plaintiff’s supervisor told other employees that someone should be present at any meeting with Plaintiff. (Id. at ¶ 61.) Plaintiff states that other hearing officers with Action Plans were not treated this way. (Id. at ¶ 63.) Employees were also told to document any mistakes that Plaintiff made. (Id. at ¶ 66.) Plaintiff had to complete a training packet for new officers as part of her Action Plan, while other officers were not required to do so. (Id. at ¶ 69.) Employees then reviewed Plaintiff’s answers in the training packet with a “fine-toothed comb.” (Id. at ¶ 70.) In December 2010, Defendant LoBianco told other employees not to speak to Plaintiff. (Id. at ¶ 74.)
In November 2010, Plaintiff was assigned a new caseload “in an effort to set her up for ‘bogus’ performance evaluations that would justify her termination.” (Id. at ¶ 73.) From 2010 to 2011, Plaintiff received “bogus evaluations” drafted by Defendants LoBianco and Filipovits, as well as other employees. (Id. at ¶¶ 76-77.) These evaluations culminated in Plaintiff’s termination in May 2011. (Id. at ¶ 78.) When Plaintiff was terminated, Defendant LoBianco stated “something to the effect that Plaintiff was ‘an embarrassment to the county.’” (Id. at ¶ 79.)
On February 7, 2013, Plaintiff commenced this action against Defendants BCCP and Bucks County, and against individual Defendants Filipovits and LoBianco. (Doc. No. 1.) Defendants BCCP and Bucks County have filed separate Motions to Dismiss the SAC. (Doc. No. 44, 49.) Individual Defendants Filipovits and LoBianco have filed a joint Motion to Dismiss the SAC. (Doc. No. 48.) On July 2, 2013, a hearing on the Motions was held. The Motions to Dismiss are now ripe for a decision by this Court.
III . STANDARD OF REVIEW
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 663; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, n.14 (3d Cir. 2013) (citing Sheridan v. NGK Metals Corp., 609 F.3d 239, n.27 (3d Cir. 2010)). “A claim has facial plausibility 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. Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”
Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679). “This means that our inquiry 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).
A complaint must do more than allege a plaintiff’s entitlement to relief, it must “show” such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). “[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 ‘shown’ — ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679. The “plausibility” determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
As noted above, Plaintiff is pursuing eight claims in six counts against Defendants BCCP and Bucks County, and against individual Defendants Filipovits and LoBianco. Defendants seek their dismissal. For reasons that follow, the Court agrees that certain claims should be dismissed. Plaintiff’s claims for interference under the FMLA and violation of the Rehabilitation Act against each of the four Defendants will be dismissed, along with her claims for violation of her equal protection rights and intentional infliction of emotional distress by individual Defendants Filipovits and LoBianco. Plaintiff’s claims for FMLA retaliation against each of the four Defendants will proceed. Her claim for retaliation under the PHRA against individual Defendants Filipovits and LoBianco will also proceed.
A. Plaintif’s Claims Against BBCP
In the Complaint, Plaintiff alleges the following claims against BCCP: (1) interference under the FMLA (Count II); (2) retaliation under the FMLA (Count II); and (2) violation of her rights under the Rehabilitation Act (Count III). BCCP seeks dismissal of the claims for interference under the FMLA and violation of the Rehabilitation Act. BCCP does not address Plaintiff’s claim for retaliation under the FMLA, and therefore that claim will not be dismissed. For reasons that follow, Plaintiff’s claims for FMLA interference and violation of the Rehabilitation Act will be dismissed.
1. Plaintiff’s Claim Against BCCP for FMLA Interference Will Be Dismissed
In Count II of the SAC, Plaintiff alleges that BCCP interfered with her right to take FMLA leave. Under the FMLA, an employee may take twelve weeks of unpaid leave “[b]ecause of a serious health condition that makes the employee unable to perform the functions of [his or her] position.” 29 U.S.C. § 2612(a)(1)(D). This is known as the “self-care” provision of the FMLA. It is unlawful for “any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise” the right to take unpaid leave. Id. at § 2615(a)(1). A claim for interference with the right to take FMLA leave is often referred to as an “FMLA interference” claim.
The FMLA allows suits to be brought against defendant employers that are subject to the FMLA requirements. “Employer” is defined in the FMLA to include “any person acting, directly or indirectly, in the interest of a covered employer, and a public agency.” 29 C.F.R. § 825.104(a). The parties do not contest that BCCP is a public entity that employed Plaintiff during all relevant times. Therefore, BCCP qualifies as Plaintiff’s employer for purposes of the FMLA.
As an initial matter, Plaintiff does not allege sufficient facts to show interference with her rights under the FMLA. BCCP, however, does not raise this as a defense in its Motion to Dismiss. Rather, BCCP asserts that the FMLA interference claim should be dismissed because BCCP is immune from liability as a state entity under the Eleventh Amendment. Plaintiff’s failure to allege sufficient facts to establish a claim for FMLA interference will be discussed in detail infra in this Opinion.
With respect to sovereign immunity, the parties agree that BCCP is a state entity. (Doc. Nos. 40 at ¶ 3; 44 at 12-13.) Plaintiff, contends, however, that the Civil Rights Remedies Equalization Act, 42 U.S.C. § 2000d-7, applies to BCCP and abrogates its immunity. Plaintiff alleges that the Civil Rights Remedies Equalization Act applies because BCCP receives federal funding. As a result, Plaintiff argues that BCCP should be liable for interference under the FMLA.
As a state entity, BCCP is generally immune from being sued for damages in federal courts. Lombardo v. Pennsylvania, Dep’t of Pub. Welfare, 540 F.3d 190, 194-95 (3d Cir. 2008). “The Third Circuit has expressly held that Pennsylvania’s courts are entitled to Eleventh Amendment immunity . . . .” Walthour v. Herron, No. 11-1690, 2011 WL 1325981, *3 (E.D. Pa. Apr. 7, 2011) (citing Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 239-40 (3d Cir. 2005); Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981)). However, two exceptions exist to sovereign immunity, and the parties contest the application of the second exception to this case. The first exception occurs when Congress explicitly abrogates a state’s immunity by statute. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). The second exception occurs when a state waives its sovereign immunity by consenting to suit. Id. The test for whether a state has waived sovereign immunity is stringent. Sossamon v. Texas, 131 S.Ct. 1651, 1658 (2011). Waiver will not be implied, and a court must “indulge every reasonable presumption against waiver.” College Sav. Bank, 527 U.S. at 682.
Here, Plaintiff contends that the second exception to sovereign immunity applies. Specifically, Plaintiff argues that BCCP has waived sovereign immunity by consenting to suit pursuant to the Civil Rights Remedies Equalization Act, 42 U.S.C. 2000d-7. The Civil Rights Remedies Equalization Act provides:
A state shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
42 U.S.C. § 2000d-7 (emphasis added). According to Plaintiff, the phrase “or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance, ” applies to the self-care provision of the FMLA because it is a federal statute that prohibits discrimination. Moreover, Plaintiff argues that because BCCP receives federal funding, this triggers the application of this catchall provision. Thus, according to Plaintiff, the catchall phrase of the Civil Rights Remedies Equalization Act results in BCCP’s waiver of sovereign immunity for purposes of liability under the FMLA.
This argument is unavailing. In Coleman v. Court of Appeals of Maryland, the Supreme Court held that “the self-care provision [of the FMLA] is not a valid abrogation of states’ immunity from suit.” 132 S.Ct. 1327, 1334 (2012) (plurality opinion). Specifically, the Court held that suits against states for violations of the FMLA’s self-care provision, 29 U.S.C. § 2612(a)(1)(D), are barred by state immunity under the Eleventh Amendment. Id. at 1332. In reaching this decision, the Court agreed with each Court of Appeals that had previously addressed the question. Id. (collecting cases). See also Banks v. Court of Common Pleas FJD, 342 F. App’x 818, 821 (3d Cir. 2009) (“[P]rivate suits for damages may not be brought against states for alleged violations of the FMLA, which arise under the Act’s self-care provision.”); Howard v. Pennsylvania Dep’t of Pub. Welfare, No. 11-1938, 2013 WL 102662 (E.D. Pa. Jan. 9, 2013) (granting summary judgment in favor of state employer on FMLA claim because suit for an alleged violation of self-care provision was barred); Folk v. Pennsylvania Dep’t of Educ., No. 10-7377, 2012 WL 2282849 (E.D. Pa. June 14, 2012) (same).
Plaintiff contends that Coleman does not control because the Court did not address the specific issue of whether sovereign immunity is waived under the catchall phrase of the Civil Rights ...