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Clark v. Philadelphia Housing Authority

United States District Court, E.D. Pennsylvania

April 21, 2015

ROBIN CLARK, Plaintiff,


CYNTHIA M. RUFE, District Judge.

Robin Clark has sued her employer, the Philadelphia Housing Authority ("PHA"), for the second time, alleging that PHA has breached an agreement the parties entered into in resolving an earlier lawsuit.[1] Plaintiff also alleges that PHA has interfered with and retaliated against her assertion of rights under the federal Family Medical Leave Act ("FMLA").[2] Defendant has moved to dismiss the Amended Complaint.


The facts, as drawn from the Amended Complaint, are presumed to be true for purposes of the motion to dismiss. Plaintiff was hired by PHA in 1997 and fired in 2002, before being reinstated by an employment arbitration decision in 2004. The 2002 termination, which Plaintiff asserted to be in violation of her rights under the FMLA, precipitated the filing of the earlier case. That case settled in 2005 with a written Settlement Agreement. Plaintiff alleges that she discovered in 2014 that "PHA had not complied with the Settlement Agreement's provision related to corrections to her personnel file. Those provisions were intended to prevent future negative employment action against Ms. Clark because of disciplinary action in her personnel file for alleged attendance reasons that had violated the FMLA."[3]

Plaintiff also argues that the PHA has been engaged in retaliation against her since she returned to work. The specific allegations are as follows. Plaintiff has worked "out of class, " doing work that should merit a higher title or more pay, since late 2004 or early 2005. In 2007, Plaintiff was demoted from Clerk II to Clerk I in the wake of layoffs at PHA, but continued to perform the same essential job functions for lower pay. Since 2007, other employees have been promoted to Clerk II, but Plaintiff has remained at Clerk I. In 2009, Plaintiff filed a grievance with her union regarding her pay and title, but PHA has failed to address the grievance on the merits, and in 2014 claimed not to have a record of it. In 2013, a new manager met with and promoted other employees, but not Plaintiff. In early 2014, PHA changed the requirements for the position of Hearing Coordinator to require a college degree; Plaintiff alleges this was done so that she would not qualify for the job, even though she had been performing its essential functions for years. All of this, Plaintiff alleges, was because she had exercised her rights under the FMLA in 2002.[4]

Plaintiff further alleges that in April 2014, she was required to use a week of accumulated sick leave, because although she "informed her supervisor of her need to take the leave because of [a] serious medical condition... PHA did not offer Ms. Clark FMLA leave."[5] As a result, Plaintiff returned to work sooner than her doctor recommended, and two days after returning to work Plaintiff received her first performance evaluation in six years, which stated "Ms. Clark can improve on her attendance record to enhance her career potential even further."[6]


A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."[7] Additionally, it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."[8] The plaintiff must state facts sufficient to "give the defendant fair notice of what the... claim is and the grounds upon which it rests.'"[9]

A plaintiff is not required to plead facts sufficient to overcome affirmative defenses, such as failure to comply with the statute of limitations, in order to survive a motion to dismiss.[10] Unless "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations, "[11] a "motion to dismiss should be denied and the issue should be decided at a later stage of the litigation."[12] Thus, dismissal pursuant to Rule 12(b)(6) on statute of limitations grounds requires the plaintiff to "effectively plead[] herself out of court by alleging facts that are sufficient to establish the defense.'"[13]


A. FMLA Claims

1. Statute of Limitations

To assert a timely FMLA claim, a plaintiff generally must file suit "not later than [two] years after the date of the last event constituting the alleged violation for which the action is brought."[14] The statute of limitations period is extended to three years if the violation was willful.[15] The Court will assume, solely for purposes of the motion to dismiss, that the three-year period applies. Defendant argues that all allegations in the Amended Complaint asserting a violation of the FMLA based on events occurring before 2011, are time-barred. Plaintiff contends that everything is timely under the "continuing violation" doctrine. Under this doctrine, "discriminatory acts that are not individually actionable may be aggregated...; such acts can occur at any time so long as they are linked in a pattern of actions which continues into the applicable limitations period."[16] The doctrine arose in the context of discrimination claims, and "the weight of authority leans decidedly against" applying the continuing violation doctrine to FMLA claims.[17] The Court agrees with the weight of authority, as claims under the FMLA are more likely to be discrete events, akin to a request for reasonable accommodation under the Americans with Disabilities Act, which the Court of Appeals has held "does not fit under the continuing violations theory."[18]

Even if the continuing violation doctrine did apply, it cannot help Plaintiff because the actions that fall outside the statute of limitations; i.e., the assignment to work "out of class, " in 2004 or 2005, the demotion in 2007, and the failure to respond to the grievance filed in 2009, were discrete acts that do not fit within the continuing violation doctrine.[19] Plaintiff cannot save untimely claims by attempting to recast them as a continuing failure by PHA to right the wrongs done her in years past. All actions that occurred before September 22, 2011 (three years before Plaintiff filed suit) are time-barred. The Court ...

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