United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge.
Introduction and Procedural History
employment discrimination action, Plaintiff, Marc Keating,
asserts claims against his former employer and now Defendant,
Pittston City Housing Authority, arising under the Americans
with Disabilities Act ("ADA"), 42 U.S.C. §
12101, et seq., the Family Medical Leave Act
("FMLA"), 29 U.S.C. § 2601, et seq.,
and the Pennsylvania Human Relations Act, 43 P.S. § 951,
et seq. Presently before the Court is
Defendant's partial Motion to Dismiss. (Doc. 17). For the
reasons that follow, the Court will grant Defendant's
Amended Complaint alleges the following facts which, for the
purposes of resolving Defendant's Motion, the Court takes
is a business entity that does business in Pennsylvania.
(Doc. 15 at ¶ 9). Defendant hired Plaintiff in a
temporary, full-time capacity from May of 2014 to September
of 2014. (Id. at ¶ 23). On January 17, 2015,
Defendant re-hired Plaintiff as a full-time employee through
the Social Security Disability Trial Work and
Self-Sufficiency Program. (id. at ¶¶
25-26). At the time, Plaintiff suffered from several
disabilities, such as impingement of his peroneal nerve, drop
foot, kidney failure, and anxiety. (Id. at ¶
19). Some or all of these disabilities were discussed with
his supervisors at the time of his hire. (Id. at
¶¶ 27-28). Plaintiffs disabilities required him to
periodically take off time from work for treatments and
evaluations. (Id. at ¶29).
time during his employment, one of Plaintiffs supervisors
began to harass Plaintiff about his disabilities and his need
to take time off of work. (Id. at ¶¶ 31).
Plaintiff reported the harassing behavior to another one of
his supervisors, but no action was taken. (Id. at
¶¶ 32-33). In response to his complaints, Plaintiff
began to be assigned tasks that were impossible for Plaintiff
to complete. (Id. at ¶¶ 34-35). Plaintiff
then escalated his complaints of harassment and
discrimination to a lead supervisor and eventually to
Director William Lizack. (Id. at ¶ 36, 41).
Director Lizack took no action on Plaintiffs complaints.
(id. at ¶ 42).
August or early September, Plaintiff informed a lead
supervisor that he needed to take three days off from work
for a medical evaluation related to one of his disabilities.
(Id. at ¶¶ 37-39). Plaintiff also provided
Director Lizack with a doctor's note which excused the
three day absence. (Id. ¶ at .43). On September
8, 2015, Plaintiff was questioned by Director Lizack about
his need to take time off from work. (Id. at ¶
44). Plaintiff offered medical documentation, but Director
Lizack refused to take it. (Id. at ¶ 45).
September 23, 2015, Defendant terminated Plaintiff's
employment. (Id. at ¶ 48). Although Plaintiffs
job performance was good and he had never been subject to a
write-up for any performance issues, Defendant identified job
performance as the reason for the termination. (Id.
at ¶ 49). Defendant later asserted that Plaintiff was
laid off due to lack of work. (Id. at ¶¶
Standard of Review
complaint must be dismissed under Federal Rule of Civil
Procedure 12(b)(6) if it does not allege "enough facts
to state a claim to relief that is plausible on its
face." Bell ML Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d. 868 (2009).
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiffs
obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555
(internal citations, alterations, and quotations marks
omitted). A court "take[s] as true all the factual
allegations in the Complaint and the reasonable inferences
that can be drawn from those facts, but...disregard[s] legal
conclusions and threadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements." Ethypharm S.A. France v. Abbott
Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal
citation, alteration, and quotation marks omitted). Thus,
"the presumption of truth attaches only to those
allegations for which there is sufficient 'factual
matter' to render them 'plausible on [their]
face.'" Schuchardt v. President of the
U.S., 839 F.3d 336, 347 (3d Cir. 2016) (alteration in
original) (quoting Iqbal, 556 U.S. at 679).
"Conclusory assertions of fact and legal conclusions are
not entitled to the same presumption." Id.
the plausibility standard 'does not impose a probability
requirement, ' it does require a pleading to show
'more than a sheer possibility that a defendant has acted
unlawfully."' Connelly v. Lane Constr.
Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
citation omitted) (first quoting Twombly, 550 U.S.
at 556; then quoting Iqbal, 556 U.S. at 678).
"The plausibility determination is 'a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.'"
Id. at 786-87 (quoting Iqbal, 556 U.S.
the present Motion, Defendant seeks to (1) dismiss
Plaintiff's two claims brought under the FMLA and (2)
dismiss Plaintiffs demand for a jury trial and claim for
compensatory damages with respect to his ADA retaliation
claims. The Court will address these issues in turn.
of Plaintiff's Amended Complaint alleges that Defendant
interfered with Plaintiffs rights under the FMLA by (1)
failing to provide him with various mandated notices, (2)
preventing him from taking FMLA protected leave, and (3)
terminating his employment when he did take FMLA protected
leave. (Doc. 15 at ¶¶ 81-94). Count VI of
Plaintiffs Amended Complaint alleges that Defendant
unlawfully retaliated against Plaintiff by terminating his
employment when he requested and then took FMLA protected
leave. (Id. at ¶¶ 96-100). Defendant
argues that these claims fail because Defendant does not
employ enough employees to be subject to the provisions of
the FMLA. (Doc. 18 at 5-9).
the FMLA, "an eligible employee [is] entitled to a total
of 12 workweeks of leave during any 12-month period...
Because of a serious health condition that makes the employee
unable to perform the functions of the position of such
employee." 29 U.S.C. § 2612(a)(1)(D). This leave
"may be taken intermittently or on a reduced leave
schedule when medically necessary." 29 U.S.C.
§2612(b)(1). In addition to creating rights, the FMLA
creates a cause of action for an employee when an employer
interferes with the employee's exercise of his or her
FMLA rights or "retaliates against an employee for
exercising [his or] her FMLA rights." Lupyan v.
Corinthian Colls. Inc., 761 F.3d 314, 318 (3d Cir.
2014); 29 U.S.C. § 2615(a). However, "[t]he FMLA
does not provide a private right of action for any employee,
but rather only for eligible employees." Sinacole v.
iGate Capital, 287 Fed.Appx. 993, 996 (3d Cir. 2008).
defines "eligible employee" as "an employee
who has been employed-(i) for at least 12 months by the
employer with respect to whom leave is requested ... and (ii)
for at least 1, 250 hours of service with such employer
during the previous 12-month period." 29 U.S.C. §
2611(2)(A). The Act further specifies that "[t]he term
'eligible employee' does not include... any employee
of an employer who is employed at a worksite at which such
employer employs less than 50 employees if the total number
of employees employed by that employer within 75 miles of
that worksite is less than 50." 29 U.S.C. § 261
l(2)(B)(ii). Consequently, in order to state a claim under
the FMLA, an employee must plead, among other things, that
"'he or she was an eligible employee under the
FMLA"' and that "'the defendant was an
employer subject to the FMLA's requirements.'"
Ross v. Gilhuly, 755 F.3d 185, 191 (3d Cir. 2014)
(quoting Johnson v. Cmty. Coll. Of Allegheny Cty.,
566 F.Supp.2d 405, 446 (W.D. Pa. 2008)); see also
Reddinger v. Hosp. Cent Servs., Inc., 4 F.Supp.2d 405,
411 (E.D. Pa. 1998) fll]n order to state a claim under the
FMLA, a complaint must at least contain allegations which
establish that, within the meaning of the FMLA, the defendant
employer is an 'employer' and the plaintiff employee
is an 'eligible employee.'").
has not pleaded that Defendant itself has fifty or more
employees. Instead, Plaintiff has pleaded that
"Defendant and the City of Pittston were joint employers
under the FMLA" and "Defendant is engaged in an
industry affecting commerce and employed fifty (50) or more
employees in ...