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McDonald v. Seiu Healthcare Pennsylvania

United States District Court, M.D. Pennsylvania

September 18, 2014

DEBORAH McDONALD, Plaintiff,
v.
SEIU HEALTHCARE PENNSYLVANIA, NEAL BISNO, KIM PATTERSON, SHARMIKA FARGEN, and MICHELE ALI, Defendants.

MEMORANDUM

CHRISTOPHER C. CONNER, District Judge.

Plaintiff Deborah McDonald filed the above-captioned action, alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. STAT. ANN. § 951 et seq., and breach of contract. McDonald seeks injunctive relief, compensatory and punitive damages, and costs and fees. Presently before the court is a motion (Doc. 20) to dismiss filed by defendants SEIU Healthcare Pennsylvania, Neal Bisno, Kim Patterson, Sharmika Fargen, and Michele Ali pursuant to Rules 12(b)(4), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, the court will grant the motion in part and deny the motion in part, extend the time to effect service, and grant plaintiff leave to file an amended complaint.

I. Factual Background and Procedural History[1]

From 2004 to 2011, Deborah McDonald ("McDonald") was an employee of SEIU Healthcare Pennsylvania ("SEIU HCPA"). (Doc. 1 ¶ 29). SEIU HCPA is a local branch of the Service Employees International Union ("SEIU") and consists of more than 20, 000 healthcare workers. (Id. ¶ 9). During the time period at issue, McDonald worked as a bookkeeper for SEIU HCPA and was a member of SEIU HCPA's office staff. (Id. ¶¶ 29, 141). McDonald's supervisors at SEIU HCPA included President Neal Bisno ("Bisno"), Secretary/Treasurer Kim Patterson ("Patterson"), Office Director Sharmika Fargen ("Fargen"), and Finance Director Michele Ali ("Ali") (collectively, the "individual defendants"). (Id. ¶¶ 14-17).

In 2010, McDonald began to have panic attacks and experienced such an attack at a demonstration that she attended on behalf of the union. (Id. ¶¶ 39-40, 62-63). After Patterson became the Secretary/Treasurer of SEIU HCPA, she informed the office staff, including McDonald, that attendance at union demonstrations and news conferences would be mandatory moving forward. (Id. ¶ 65). McDonald requested that Fargen excuse her from participating in additional demonstrations. (Id. ¶ 66). Fargen denied this request. (Id. ¶ 67). McDonald claims that she was forced to attend additional events and became physically ill while doing so. (Id. ¶¶ 68-69).

McDonald began a medical leave of absence on February 9, 2011. (Id. ¶ 71). On March 10, 2011, Bisno approved McDonald's initial medical leave. (Id. ¶ 79). Shortly after her leave commenced, McDonald's personal items were purportedly placed in a cupboard in her office, her mailbox was removed, her voice mail message was replaced, and she no longer received union mail. (Id. ¶¶ 127-132). An unnamed individual also allegedly informed McDonald that ADP had been handling her accounting responsibilities as of June 30, 2011 and that Ali had indicated that McDonald would not be returning to SEIU HCPA after her leave. (Id. ¶¶ 133-135).

McDonald requested and received extensions of her medical leave from April 8, 2011 to May 8, 2011, (id. ¶¶ 82-88); from May 9, 2011 to May 31, 2011, (id. ¶ 89); and from June 1, 2011 to August 31, 2011, (id. ¶¶ 91-94). In an email to Bisno on May 27, 2011, McDonald noted that her medical situation "has spiraled into more and is requiring a lot more than [she] was prepared for" and that she could not provide an end date for her leave. (Id. ¶ 92). On June 14, 2011, Bisno informed McDonald via letter that SEIU HCPA had designated McDonald's absence as an FMLA leave and that her FMLA leave "has been exhausted in accordance with applicable law." (Id. ¶¶ 93-94).

On August 2, 2011, McDonald's psychiatrist submitted a disability claim to SEIU HCPA in which he certified that he first treated McDonald on April 21, 2011; diagnosed McDonald with major depression, panic disorder, persistent anxiety, interpersonal difficulties, and an inability to work effectively; and stated that he could not determine when McDonald would be able to return to work. (Id. ¶¶ 104-110). On August 11, 2011, McDonald requested that Bisno extend her medical leave beyond August 31, 2011. (Id. ¶ 112). Bisno denied this request. (Id. ¶¶ 113-116). After McDonald failed to return to work on September 1, 2011, SEIU HCPA terminated her employment on the grounds of abandonment. (Id. ¶ 117). McDonald's physician cleared her to return to work on October 31, 2011 on a part-time basis. (Id. ¶ 122).

The union's policy on medical leaves of absence provides that a union employee shall be entitled to a leave of absence for the lesser of "up to twelve (12) months or the length of employment." (Id. ¶ 142). SEIU HCPA also implemented anti-discrimination and anti-harassment policies. (Id. ¶ 147). These policies prohibit discrimination or harassment on the bases of "race, color, religion, creed, sex, age, national origin, sexual orientation, physical or mental disability, any other basis prohibited by law, or protected activity under the anti-discrimination statutes." (Id. ¶ 149).

On June 27, 2012, McDonald dual-filed a charge of discrimination against SEIU HCPA and the individual defendants with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC") pursuant to 42 U.S.C. § 2000e-5(b) and (e).[2] (Doc. 1 ¶ 25). On July 10, 2013, the EEOC issued McDonald a Notice of Right To Sue, which she received on July 15, 2013. (Id. ¶ 27). On October 14, 2013, McDonald commenced the instant action by filing a complaint against SEIU, SEIU HCPA, Bisno, Patterson, Fargen, and Ali with the court. McDonald alleges that SEIU and SEIU HCPA discriminated against her on the basis of her disability in violation of the ADA, (id. ¶¶ 159-174), and on the basis of her age in violation of the ADEA, (id. ¶¶ 175-181); that SEIU and SEIU HCPA created a hostile work environment, (see id. ¶ 176); that all defendants retaliated against her for taking a medical leave in violation of the FMLA, (id. ¶¶ 182-184), and discriminated against her in violation of the PHRA, (id. ¶¶ 185-200); and that certain defendants breached SEIU and SEIU HCPA's policies pertaining to medical leave, anti-discrimination and anti-harassment, and union membership, (id. ¶¶ 201-204).[3]

On February 20, 2014, the court ordered McDonald to show cause why this case should not be dismissed for failure to serve the summons and complaint within 120 days after filing the complaint pursuant to Federal Rule of Civil Procedure 4(m). (Doc. 4). McDonald's counsel submitted a response to the show cause order in which counsel avers that due to a series of serious health issues throughout the 120-day period that required medical treatment, counsel was unable to effect timely service on the parties. (Doc. 5). Counsel further observes that she mailed waivers of service to all defendants on February 12, 2014-one day after the 120-day period for service expired-and that she notified the court of her health issues on February 14, 2014. (See id. ¶¶ 28-30). According to counsel, SEIU HCPA, Bisno, Patteron, Fargen, and Ali were each served at their place of business on February 25, 2014. (Id. ¶ 34).

On March 18, 2014, defendants SEIU HCPA, Bisno, Patteron, Fargen, and Ali filed the instant motion to dismiss the complaint for insufficient process, insufficient service of process, and failure to state a claim upon which relief may be granted. (Doc. 20).[4] Defendants also contend that McDonald's hostile work environment, FMLA, and PHRA claims are time-barred. The motion has been fully briefed and is ripe for disposition.

II. Legal Standard

The court has jurisdiction over the instant matter because the complaint presents a question of federal law. See 28 U.S.C. § 1331. The court also exercises supplemental jurisdiction over the state law claims for violation of the PHRA and breach of contract because they are related to and share a common nucleus of operative facts with the federal law claims, thus forming part of the same case or controversy. See id. § 1367; Lyon v. Whisman , 45 F.3d 758, 759-60 (3d Cir. 1995) (quoting United Mine Workers v. Gibbs , 383 U.S. 715, 725 (1966)).

A. Rules 12(b)(4) and 12(b)(5): Insufficient Process and Service of Process

Federal Rule of Civil Procedure 4 prescribes the process for issuing and serving a summons and complaint. FED. R. CIV. P. 4; 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.33[1] (3d ed. 2014) [hereinafter MOORE'S FEDERAL PRACTICE]. A motion to dismiss pursuant to Rule 12(b)(4) properly challenges only noncompliance with Rule 4(b) or other provisions pertaining to the content or issuance of the summons, while a Rule 12(b)(5) motion may be used to challenge the method of service or the lack of service. FED. R. CIV. P. 12(b)(4), (b)(5); 5B CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 1353 (3d ed. 2014). A defendant may move to dismiss the complaint or quash service pursuant to Rule 12(b)(4) or Rule 12(b)(5) when a plaintiff fails to comply with the requirements of Rule 4. 2 MOORE'S FEDERAL PRACTICE § 12.33[1]. In a challenge to the sufficiency of service, the burden of proof lies on the party asserting the validity of service. Grand Entm't Group, Ltd. v. Star Media Sales, Inc. , 988 F.2d 476, 488 (3d Cir. 1993) (citing 4A WRIGHT & MILLER § 1083); Mitchell v. Theriault , 516 F.Supp.2d 450, 452 (M.D. Pa. 2007). However, the movant must state its objections with specificity and must identify the manner in which the plaintiff failed to satisfy the requirements of service. 2 MOORE'S FEDERAL PRACTICE § 12.33[1].

B. Rule 12(b)(6): Failure to State a Claim

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co. , 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008)); accord Kanter v. Barella , 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher , 423 F.3d 347, 350 (3d Cir. 2005)). In addition to reviewing the facts contained in the complaint, the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); accord Pension Benefit Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir. 1993).

Federal notice and pleading rules require the complaint to provide "the defendant fair notice of what the... claim is and the grounds upon which it rests." Phillips , 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp. , 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step, "the court must tak[e] note of the elements a plaintiff must plead to state a claim.'" Id . (alteration in original) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a claim should be separated; well-pleaded facts must be accepted as true, while mere legal conclusions may be disregarded. Id .; see also Fowler v. UPMC Shadyside , 578 F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual allegations, it must determine whether they are sufficient to show a "plausible claim for relief." Iqbal , 556 U.S. at 679 (citing Twombly , 550 U.S. at 556); accord Twombly , 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). 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." Iqbal , 556 U.S. at 678. When the complaint fails to present a prima facie case of liability, courts should generally grant leave to amend before dismissing a complaint. See Grayson v. Mayview State Hosp. , 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver , 213 F.3d 113, 116-17 (3d Cir. 2000).

C. Statute of Limitations Defense

Federal Rule of Civil Procedure 8(c) deems a statute of limitations bar to be an affirmative defense that must be pleaded in an answer to the complaint. See FED. R. CIV. P. 8(c). Nevertheless, the court may dismiss a complaint as time-barred if "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Robinson v. Johnson , 313 F.3d 128, 135 (3d Cir. 2002) (quoting Hanna v. U.S. Veterans' Admin. Hosp. , 514 F.2d 1092, 1094 (3d Cir. 1975)); see also Oshiver , 38 F.3d at 1384 n.1 ("While the language of FED. R. CIV. P. 8(c) indicates that a statute of limitations defense cannot be used in the context of a Rule 12(b)(6) motion to dismiss, an exception is made where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading.").

III. Discussion

Defendants set forth six principal arguments in their motion to dismiss. First, defendants argue that McDonald's complaint should be dismissed for insufficient service. Second and third, respectively, defendants contend that McDonald does not adequately plead claims under the ADA or ADEA. In connection with this argument, defendants maintain that McDonald's hostile work environment allegations are insufficient to state a claim and are time-barred in any event. Fourth, defendants assert that McDonald's claims under the FMLA are time-barred and that the complaint fails to state a claim for retaliation. Fifth, defendants contend that McDonald cannot obtain relief under the PHRA on the grounds that her claim is time-barred and that her allegations fail to state a claim. Finally, defendants argue that McDonald cannot maintain breach of contract claims because the complaint does not sufficiently allege the existence of any contracts or any harm to McDonald. The court addresses each of these issues seriatim.

A. Sufficiency of Service

Defendants assert that the complaint should be dismissed for insufficient process and insufficient service of process. (Doc. 21 at 7-10). As an initial matter, the court observes that defendants do not challenge the form of the summons or the process by which it was issued. In connection with their Rule 12(b)(4) argument, defendants challenge only McDonald's failure to serve the complaint within the period prescribed by Federal Rule of Civil Procedure 4. This challenge is properly made pursuant to Rule 12(b)(5), and the court will construe it under that provision. See White v. SKF Aerospace, Inc. , 768 F.Supp. 498, 499 n.1 (E.D. Pa. 1991).

When a plaintiff fails to serve process as set forth in Rule 4, a court possesses discretion either to dismiss the complaint or to quash service and grant plaintiff additional time to serve the summons and complaint. See Umbenhauer v. Woog , 969 F.2d 25, 30 (3d Cir. 1992); see also FED. R. CIV. P. 4(m). When there remains a reasonable prospect that service may be obtained, however, dismissal of a complaint is inappropriate. Umbenhauer , 969 F.2d at 30. Under that circumstance, "the district court should, at most, quash service, leaving the plaintiff[] free to effect proper service." Id.

1. Extension of Time for Good Cause

McDonald does not dispute that she failed to serve the summons and complaint on the defendants by February 11, 2014, 120 days after she filed the complaint. See FED. R. CIV. P. 4(m). Rather, she avers that she has demonstrated good cause to extend the time for service in light of her counsel's serious health issues, as well as the illnesses of counsel's assistants and inclement weather. (Doc. 30 at 7-8). Defendants note that McDonald's counsel filed ...


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