United States District Court, M.D. Pennsylvania
A. RICHARD CAPUTO, District Judge.
Presently before the Court is the Motion to Dismiss the Second Amended Complaint (Doc. 27) filed by Defendants Gary Potter ("Potter") and Dominick Fanelli ("Fanelli") (collectively, "Moving Defendants"). Plaintiff Joseph Jankowski ("Jankowski") commenced this action against his former employer, Fanelli Brothers Trucking Company ("Fanelli Brothers"), and three Fanelli Brothers employees, Potter, Fanelli, and Earl McCardle ("McCardle) (collectively, "Individual Defendants"), for violations of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 951 et seq., and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Jankowski also asserts claims against Fanelli Brothers under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. In their motion, Moving Defendants seek dismissal of the PHRA claims for failure to accommodate and unlawful retaliation on the basis that Jankowski failed to exhaust his administrative remedies. Because the facts as alleged in the Second Amended Complaint satisfy the exception to the exhaustion requirement established by the Third Circuit in Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1987) and Schafer v. Board of Public Education, 903 F.2d 243, 251 (3d Cir. 1990), the motion to dismiss will be denied.
A. Factual Background
The facts as set forth in the Second Amended Complaint are as follows: Plaintiff Jankowsi was employed by Fanelli Brothers as a truck driver from December 10, 2010 until May 21, 2012. ( Second Am. Compl., ¶ 24.) Defendant McCardle was the President of Fanelli Brothers. ( Id. at ¶ 4.) Fanelli was employed by Fanelli Brothers, and he served as Jankowski's supervisor. ( Id. at ¶ 5.) Potter was employed by Fanelli Brothers as Safety and Recruiting Director. ( Id. at ¶ 6.)
During his employment with Fanelli Brothers as a truck driver, Jankowski's job duties included assignments that required overnight runs. ( Id. at ¶ 25.) As a result, Jankowski would sleep overnight in his assigned truck. ( Id. at ¶ 28.) The truck was owned by Fanelli Brothers but assigned exclusively for Jankowski's use. ( Id. at ¶ 26.)
On or about May 1, 2012, Jankowski was diagnosed with sleep apnea, which caused him to suffer difficulty sleeping, breathing, remaining awake, working, and concentrating. ( Id. at ¶¶ 29-30.) Jankowski was prescribed a Continuous Positive Airway Pressure ("CPAP") machine to be used during sleep to treat his condition. ( Id. at ¶ 31.)
The CPAP machine required electrical power to operate. ( Id. at ¶ 33.) However, the truck assigned to Jankowski did not have working electrical power. ( Id. at ¶ 34.) The truck could have been fitted with an auxiliary power unit to produce electrical power for the CPAP machine for approximately $150.00. ( Id. at ¶¶ 35, 43.)
On or about May 2, 2012, Jankowski informed Defendants Fanelli Brothers and Potter that he suffered from sleep apnea and that he had been prescribed a CPAP machine. ( Id. at ¶ 36.) That same day, he informed Defendants that he would need an auxiliary power unit in his assigned truck to power the CPAP machine. ( Id. at ¶ 37.) Once the CPAP machine was delivered to Jankowski, he again informed Defendants that he needed an auxiliary power unit in his truck. ( Id. at ¶ 39.)
Defendants refused to provide the auxiliary power unit. ( Id. at ¶ 40.) Instead, Defendant Fanelli informed Jankowski that he was responsible for purchasing his own auxiliary power unit. ( Id. at ¶ 41.)
In or about March 2012, Jankowski informed Defendants that he was scheduled for hernia surgery in May 2012. ( Id. at ¶ 49.) He also informed Defendants that he would need time off after the surgery. ( Id. )
On or about May 21, 2012, approximately one week before his scheduled hernia surgery, Fanelli terminated Jankowski's employment over the telephone. ( Id. at ¶¶ 45, 51.)
Thereafter, on July 17, 2012, Jankowski, through counsel, sent two letters to Fanelli Brothers; a representation letter, ( Am. Compl., Ex. A), and a preservation letter, ( Am. Compl., Ex. B). The representation letter was sent "FOR SETTLEMENT PURPOSES." ( Am. Compl., Ex. A.) That letter represents that Jankowski's termination was in violation of the PHRA. ( Id. ) The representation letter also states:
Mr. Jankowski is not a litigious individual. He wants simply to be treated in accordance with the law. Accordingly, Mr. Jankowski will release Fanelli Brothers, Dominick Fanelli, Gary Potter, and any other employees and/or agents of Fanelli Brothers from liability if (1) he is reinstated to his former position with the same rate of pay, benefits, accrued vacation, and sick time, and other conditions of employment he had prior to his termination; (2) he is provided a truck with auxiliary power; and (3) he is paid in full for the financial losses suffered as a result of his termination.
If Fanelli Brothers is interested in resolving this matter amicably, through reinstatement of Mr. Jankowski or otherwise, please have your representative contact me within the next fifteen days.
( Id. ) The preservation letter informed Fanelli Brothers of potential litigation and advised that "Fanelli Brothers, its officers, agents, employees and assigns" had a duty to ...