United States District Court, E.D. Pennsylvania
JAMES J. KURYLO,
PARKHOUSE NURSING AND REHAB. CTR., LP
N. O'NEILL, JR., J.
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.
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.
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.
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.
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.
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.
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.
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. Dkt. No. 8.
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.
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.
ADA and PHRA Discrimination Claims
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 ADA and the PHRA. I agree and will grant the
motion to dismiss.
Americans With Disabilities Act forbids employers from
“discriminat[ing] against a qualified individual with a
disability because of the disability of such individual in
regard to job application procedures, the hiring,
advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a).
To state a claim for employment discrimination under the ADA,
plaintiff must demonstrate that he or she is a
“qualified individual with a disability” within
the meaning of the Act, and that he or she has suffered an
adverse employment decision as a result of the
discrimination. Tice v. Ctr. Area Transp. Auth., 247
F.3d 506, 511-12 (3d Cir. 2001). A “qualified
individual with a disability” is “an individual
with a ...