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Keating v. Pittston City Housing Authority

United States District Court, M.D. Pennsylvania

March 21, 2018

MARC KEATING, Plaintiff,


          Robert D. Mariani United States District Judge.

         I. Introduction and Procedural History

         In this 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 Motion.

         II. Factual Allegations

         Plaintiffs Amended Complaint alleges the following facts which, for the purposes of resolving Defendant's Motion, the Court takes as true:

         Defendant 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).

         At some 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).

         In late 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).

         On 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 ¶¶ 49-50).

         III. Standard of Review

         A 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).

         'While 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.

         "Although 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. 679).

         IV. Analysis

         Through 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.

         A FMLA Claims

         Count V 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).

         Under 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).

         The Act 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.'").

         Plaintiff 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 ...

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