United States District Court, E.D. Pennsylvania
JOEL H. SLOMSKY, District Judge.
Clare Duckworth ("Plaintiff") brings this suit against Lieutenant Stephen Biello ("Lt. Biello"), Captain John Darby ("Capt. Darby") and the City of Philadelphia ("Defendants") for alleged violations of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act ("ADA") and the Pennsylvania Human Relations Act ("PHRA"). In Count I of her Complaint, Plaintiff alleges that Defendants discriminated against her based on sex, created a hostile work environment, and retaliated against her in violation of Title VII. In Count II of her Complaint, Plaintiff asserts a failure to accommodate claim against Defendants under the ADA. In Count III of her Complaint, Plaintiff alleges that Defendants discriminated against her based on sex, created a hostile work environment, retaliated against her, and denied her a reasonable accommodation in violation of the PHRA.
Defendants filed a Partial Motion to Dismiss, seeking dismissal of Count I in its entirety. They also seek to dismiss the disparate treatment,  hostile work environment, and retaliation claims in Count III. However, they do not seek to dismiss Count II of the Complaint, and they do not seek to dismiss the failure to accommodate claim found in Count III. A hearing on the Motion was held on April 7, 2014. The Motion is now ripe for disposition.
The following facts are taken from the Amended Complaint and must be accepted as true for purposes of the Motion to Dismiss. Plaintiff has been a Philadelphia Police Officer since August 1989. (Doc. No. 1 at ¶ 11.) On December 22, 2002, she was assigned to the Child Abuse division of the Special Victims Unit. (Id.) Plaintiff's shifts alternated weekly, from 8 a.m. to 4 p.m. and 2 p.m. to 10 p.m., with weekends off. (Id.) Plaintiff has been diagnosed with Crohn's Disease and Fibromyalgia. (Id. at ¶¶ 12-13.) Plaintiff's supervisors, Lt. Biello and Capt. Darby, knew that Plaintiff suffered from both afflictions. (Id. at ¶¶ 14, 16-17.)
In November 2011, Plaintiff began having fibromyalgia flare-ups. (Id. at ¶ 18.) The fibromyalgia caused pain throughout Plaintiff's body and severely reduced her mobility. (Id.) Her symptoms were worse in the morning, and her mobility would improve throughout the course of the day. (Id.) Due to these fibromyalgia flare-ups, Plaintiff took two days off in November 2011 and twelve days off in December 2011. (Id. at ¶ 19.)
On January 17, 2012, Plaintiff was out sick due to fibromyalgia pain, and Lt. Biello called her because she had missed a meeting. (Id. at ¶ 20.) Lt. Biello informed Plaintiff that Capt. Darby wanted to transfer her because of the sick time she was using. (Id.) On January 24, 2012, Plaintiff had a meeting with Lt. Biello and explained that she was using sick time because of her fibromyalgia. (Id. at ¶ 21.) Then, on January 30, 2012, Plaintiff sent a text message to Lt. Biello, asking if she could work an extra week on the 2 p.m. to 10 p.m. shift because she was experiencing excruciating pain in the mornings due to her fibromyalgia. (Id. at ¶ 22.) Lt. Biello responded via text message: "we are not doing that." (Id.)
From 2012 to the present, Plaintiff has continued to suffer from fibromyalgia flare-ups. (Id. at ¶ 23.) Despite being in constant pain, Plaintiff continued coming to work. (Id.) According to Plaintiff, she performed her employment duties satisfactorily during this time. (Id.) On April 16, 2012, Plaintiff met with Capt. Darby and Lt. Biello to ask them if she could work the 2 p.m. to 10 p.m. shift on a temporary basis while she recovered from the fibromyalgia flare-ups. (Id. at ¶ 24.) Plaintiff's request was denied. (Id.) Capt. Darby told Plaintiff that she should take leave under the Family and Medical Leave Act ("FMLA") to recover, but he would not change her schedule to the 2 p.m. to 10 p.m. shift. (Id.) Plaintiff was not satisfied with the proposed solution because she wanted to continue working full time but with an accommodation. (Id.)
On April 19, 2012, Plaintiff had another meeting with Capt. Darby where she again asked to work a later shift. (Id. at ¶ 25.) Capt. Darby denied Plaintiff's request a second time and told her that her only option was to take FMLA leave. (Id.) Plaintiff reported to work the next day, and Capt. Darby was furious that she had come in because he had already arranged for another officer to replace her. (Id. at ¶ 26.) He was under the impression that Plaintiff would be out on FMLA leave. (Id.) At that time, Capt. Darby gave Plaintiff verbal notice that she was delinquent for unwritten reports. (Id.)
From April 2012 until October 2012, Plaintiff used approximately 250 hours of sick and vacation time when her fibromyalgia pain was extreme. (Id. at ¶ 29.) Based on her treatment by her supervisors, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on May 27, 2012. (Id. at ¶ 30.) Plaintiff filed a second complaint with the EEOC on August 7, 2012. (Id.)
In October 2012, at the recommendation of her doctor, Plaintiff took sick leave on a continued basis for approximately seven weeks. (Id. at ¶ 31.) According to Plaintiff, until this time, she was able to perform the essential functions of a police officer in the Special Victims Unit. (Id.) On November 23, 2012, Capt. Darby had a meeting with Lt. Biello and Lt. Smith. He informed the two lieutenants that he reassigned Plaintiff to line-squad (7×3/8×4 and alternating every two weeks of night work 3×11/4×12, and rotating days off). (Id. at ¶ 32.) The three supervisors also discussed Plaintiff's EEOC charges and the different treatment towards her and other officers. (Id.) According to Plaintiff, Capt. Darby decided to switch Plaintiff back to Child Abuse so that it would not "look like retaliation." (Id.)
On November 28, 2012, Plaintiff returned from sick leave to full duty status. (Id. at ¶ 33.) Upon her return to work, Plaintiff was moved to another floor in Child Abuse and was not assigned any new cases for six weeks. (Id.) From January 2014 to the present, Plaintiff has continued to work in Child Abuse on alternating 8 a.m. to 4 p.m. and 2 p.m. to 10 p.m. work shifts. (Id. at ¶ 34.) ...