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Kurylo v. Parkhouse Nursing and Rehab Ctr, LP

United States District Court, E.D. Pennsylvania

April 3, 2017



          O'NEILL, J.

         In the present case, plaintiff James J. Kurylo claims age discrimination, disability discrimination and retaliation by his former employer, defendant Parkhouse Nursing and Rehabilitation Center, LP. Defendant now seeks dismissal of plaintiff's claims of disability discrimination and retaliation. For the following reasons, the motion for partial dismissal will be granted in part and denied in part.


         According to the facts set forth in the complaint, plaintiff James J. Kurylo is a septuagenarian who, during the time relevant to this action, was employed by defendant Parkhouse Nursing and Rehabilitation, L.P. Compl. ¶¶ 1-2. Plaintiff began his employment on August 25, 2014, as a part-time driver earning fifteen dollars an hour. Id. ¶ 7. Within a few months, defendant made plaintiff a full-time employee. Id. ¶ 8.

         After one month of work, plaintiff's co-workers-Carl Talley and Naomi Hersch-began picking on plaintiff in the drivers' break room due to his age, calling him “pathetic old man, ” “old man” and other similar names. Id. ¶¶ 10-11. Plaintiff was more than ten years older than the next closest worker or supervisor. Id. ¶ 12. Plaintiff's direct supervisor, Mike Hoch, witnessed these comments and laughed in approval. Id. ¶¶ 9, 13. In an effort to keep his job, plaintiff tried to deal with the harassment, rather than going to Human Resources. Id. ¶ 14.

         From March 12, 2015 to March 23, 2015, a “stomach problem” caused plaintiff to miss work. Id. ¶¶ 15, 17. Plaintiff had sufficient sick and vacation time to cover his missed time from work, and he kept defendant informed of his missed days to avoid any no-call/no-show problems. Id. ¶ 18. Under defendant's policy, “if an employee is absent for 3 or more consecutive days, a physician's statement must be presented to return to work.” Id. ¶ 19. In compliance with this policy, plaintiff obtained a physician statement from his treating doctor, Dr. Talamo of Talamo Family Practice Group, P.C., that explained that plaintiff was disabled from work from March 12, 2015 through March 23, 2015, but capable of returning on March 24, 2015. Id. ¶¶ 16, 20. When plaintiff attempted to give the note to his supervisor Hoch, however, Hoch replied that he did not want a doctor's note and the matter was “out of his hands.” Id. ¶ 21.

         Plaintiff then attempted to give the physician statement to Jennifer Reimer in defendant's Human Resources department. Id. ¶ 22. Defendant still refused to place plaintiff back on the schedule and, instead, Reimer demanded that plaintiff complete Family Medical Leave (FMLA) paperwork. Id. ¶¶ 23-24. Because plaintiff had not worked for defendant for twelve months and had not worked 1250 hours between his hire date in August and leave in March, he explained that he neither wanted nor was eligible for FMLA leave. Id. ¶¶ 25-26. Nonetheless, Reimer replied that she wanted paperwork to decide whether plaintiff was being terminated. Id. ¶ 26.

         Dr. Talamo declined to complete the FMLA paperwork. Id. ¶ 27. Therefore, plaintiff returned it to defendant, who sent fax requests to Dr. Talamo's office, to no avail. Id. ¶¶ 28-29. On April 13, 2015, defendant sent plaintiff a letter that the FMLA paperwork had not been completed pursuant to its written policy of a fifteen-day completion period, and if it was not completed by April 27, 2015, plaintiff would be terminated for job abandonment. Id. ¶ 30.

         Plaintiff did not hear again from defendant and was never placed back on the schedule. Id. ¶ 31. Plaintiff was subsequently terminated from defendant's employment and significantly younger employees either replaced him or collectively undertook his job responsibilities. Id. ¶¶ 32-33.

         Following administrative exhaustion of his charges of discrimination with the Equal Employment Opportunity Commission (EEOC) and Pennsylvania Human Relations Commission (PHRC), id. ¶ 6, plaintiff commenced the current litigation on January 3, 2017. His complaint sets forth multiple claims as follows: (1) age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq.; (2) age discrimination under the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 953, et seq.; (3) disability discrimination and retaliation under the Americans With Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101, et seq.; and (4) disability discrimination and retaliation under the PHRA. On February 13, 2017, defendant filed a motion to dismiss Counts III and IV of the complaint. Dkt. No. 5. Plaintiff responded on February 24, 2017.[1] Dkt. No. 8.


         Under Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). The United States Supreme Court has recognized that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations omitted). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” and “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct. Id.

         The Court of Appeals has detailed a three-step process to determine whether a complaint meets the pleadings standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2014). First, the court outlines the elements a plaintiff must plead to state a claim for relief. Id. at 365. Next, the court must “peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth.” Id. Finally, the court “look[s] for well-pled factual allegations, assume[s] their veracity, and then ‘determine[s] whether they plausibly give rise to an entitlement to relief.'” Id., quoting Iqbal, 556 U.S. at 679. The last step is “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Id., quoting Iqbal, 556 U.S. at 679.


         I. ADA and PHRA Discrimination Claims

         Defendant first seeks dismissal of plaintiff's claims of disability discrimination on the ground that plaintiff has failed to plead facts showing that he is a disabled person within the meaning of the ...

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