Gross v. HATBORO-HORSHAM SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STEWART J. GROSS : CIVIL ACTION

Plaintiff :

: NO. 23-0633

v. :

:

HATBORO-HORSHAM SCHOOL :

DISTRICT :

Defendant :

NITZA I. QUIÑONES ALEJANDRO, J. JULY 31, 2023

MEMORANDUM OPINION

INTRODUCTION

Plaintiff Stewart J. Gross (“Plaintiff”) filed this employment discrimination action against

his former employer, Defendant Hatboro-Horsham School District (“Defendant” or “Hatboro-

Horsham”), under the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12101

et seq.; the Age Discrimination in Employment Act of 1967 (the “ADEA”), 29 U.S.C. § 621 et

seq.; and the Pennsylvania Human Relations Act (the “PHRA”), 43 Pa. Cons. Stat. § 951 et seq.

[ECF 1]. Plaintiff’s claims of disparate treatment and hostile work environment are premised on

allegations that upon his return from a year-long medical leave, the principals, assistant principals,

and staff at Keith Valley Middle School within the Hatboro-Horsham School District treated him

differently than they treated the younger, nondisabled teachers, and created such intolerable

working conditions that caused him to retire.

Before this Court is Defendant’s motion to dismiss Plaintiff’s complaint in its entirety.

[ECF 5]. Plaintiff opposes the motion. [ECF 8]. For the reasons set forth, Defendant’s motion is

denied.

BACKGROUND

When ruling on a motion to dismiss, this Court must accept as true all factual allegations

in the complaint and construe the facts alleged in the light most favorable to the non-moving

party—here, Plaintiff. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009) (citing

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). The facts relevant1 to the underlying motion are as

follows:

Plaintiff, who is currently sixty-two years old, was employed as a teacher

for thirty-five years by Defendant. Prior to his 2023 retirement, Plaintiff worked at

Keith Valley Middle School (“KVMS”) as a seventh-grade English Language Arts

teacher. During all relevant time, Plaintiff was over the age of forty and suffered

various medical conditions, including a heart condition, high blood pressure, and

dysautonomia, a neurological condition.

For the 2014–15 school year, Plaintiff was on medical leave due to a

“serious health condition.” (Compl. Ex. A, ECF 1-1, at p. 1). When he returned to

work for the 2015–16 school year, Plaintiff was the subject of derisive comments

and conduct from teachers and administrators at KVMS, false accusations from

assistant principals at KVMS, an unsubstantiated disciplinary hearing, and various

instances of being singled out by school administrators, described more fully infra.

Plaintiff alleges that younger and nondisabled teachers were not subject to similar

treatment. This treatment persisted continuously until Plaintiff’s second medical

leave, which began in February 2022.

Disparaging Comments and Treatment

Plaintiff alleges that upon his return to work in 2015, KVMS Principal

Jonathan Kircher “sarcastically remarked [to Plaintiff], ‘Now I know all about your

health, just like my dad.’” (Compl. Ex. A, ECF 1-1, ¶ a). Principal Kircher told

Plaintiff that Kircher’s father was retired because of medical conditions similar to

Plaintiff’s and that Plaintiff’s condition was worse than that of Kircher’s father.

During that same school year, teacher Wendy King “repeatedly inquired” as to

when Plaintiff planned to retire from teaching. (Id. ¶ b).

In October of 2016, Assistant Principal John Ewerth asked how many years

he had left before retiring. When Plaintiff asked Assistant Principal Ewerth why he

wanted to know, Assistant Principal Ewerth told Plaintiff, “I’m thinking you’re

getting ready to retire.” (Id. ¶ c). In April of 2017, Assistant Principal Ewerth

1 Plaintiff’s allegations are derived from his Equal Employment Opportunity Commission (“EEOC”)

Complaint, which was attached as Exhibit A to Plaintiff’s Complaint and incorporated therein. [ECF 1-1].

shouted down the hallway, in front of Plaintiff and KVMS teacher Jim Iaia, that

everything Plaintiff did was “like a pussy.” (Id. ¶ e).

In March of 2018, a police cruiser followed Plaintiff around the school

parking lot. An unnamed building support staff employee told Plaintiff she

“overheard [Principal] Kircher and [Guidance Counselor Andy] Osborne talking

about ‘having some fun with Stewart Gross.’” (Id. ¶ h).

False Accusations

As to the false accusations, Plaintiff contends that Principal Kircher and

three assistant principals also levied false accusations against Plaintiff after his

return from his first medical leave. In February of 2018, Principal Kircher falsely

accused Plaintiff of sleeping in class and having drugs in his classroom. In

February of 2019, Principal Kircher falsely accused Plaintiff of using the N-word

in his classroom and threatened disciplinary action. Principal Kircher never

followed through with the threatened discipline.

In October 2017, Assistant Principal Ewerth accused Plaintiff of not being

prepared for “PSA test[ing]” based on a pile of books lying face-down in Plaintiff’s

classroom, which could “give kids ideas” during the testing. (Id. ¶ d). Plaintiff

alleges that other teachers had posters and books in view of students in their

classrooms, but Ewerth accused only Plaintiff of being unprepared.

In September 2020, Assistant Principal Kai-Morris Coleman falsely

accused Plaintiff of not instructing students properly during remote learning. In

February 2021, Plaintiff was given a mediocre rating in an employee evaluation by

another assistant principal based on a false accusation that students were not

participating during remote learning.

Differential Treatment

As for the differential treatment, Plaintiff alleges that his classroom was

“subjected to drug test[ing] more frequently than other teachers’ rooms [] in a

manner that [was] not ‘random.’” (Id. ¶ f). During Spring of 2018, Guidance

Counselor Osborne, a good friend of Principal Kircher, repeatedly disturbed

Plaintiff’s classroom by “oddly peek[ing]” into Plaintiff’s classroom at least a

dozen times during the semester. (Id. ¶ g). Other younger, nondisabled teachers

were not subjected to this treatment. At the time, none of Plaintiff’s students was

assigned to Osborne for guidance counseling purposes. In October of 2018,

Osborne disturbed Plaintiff’s classroom again. When Plaintiff confronted Osborne

about the behavior, Osborne walked away silently.

Plaintiff also alleges that he received “glowing classroom walk-through

observations,” coached two sports programs at KVMS, and supervised a student

project for which his students won an award. Notwithstanding his efforts,

commendations, and achievements, Plaintiff received only an “average proficient”

rating in his employee evaluation that did not mention of the glowing walk-through

observations. (Id. ¶ k). Upon review of his employee file, Plaintiff noticed that one

of the most glowing observations was not included in the file.

Plaintiff was also assigned an “inordinate amount” of students with

behavioral issues in the 2021–22 school year. (Id. ¶ h). The eight students who,

according to the sixth-grade teachers, had the most issues with academics, behavior,

and truancy were all assigned to Plaintiff’s classroom for the 2021–22 school year.

KVMS administrators did not subject younger, nondisabled teachers to similar

treatment.

Disciplinary Hearing

On December 7, 2021, Plaintiff had a “major behavioral incident” with one

of his students. (Id. ¶ o). Plaintiff wrote an email to Principal Kircher about the

student, indicating he did not want the student to return to his class until there was

a meeting between Plaintiff, the student, and Principal Kircher. Instead of the

meeting that Plaintiff had requested before bringing the student back into the

classroom, Principal Kircher and Assistant Principal Coleman met with Plaintiff

alone on December 8, 2021. During the meeting, Principal Kircher and Assistant

Principal Coleman accused Plaintiff of writing a negative email about the student

and stated that a disciplinary hearing against Plaintiff would soon follow “to go

over ‘every line of [Plaintiff’s] letter.’” (Id. ¶ p).

On December 14, 2021, Plaintiff met with Principal Kircher and Hatboro-

Horsham Education Association (“HHEA”) President Bryan Moore, as well as the

Hatboro-Horsham solicitor, the HHEA human resources director, and the

Pennsylvania State Education Association Mideastern Region Uniserve

representative. During that meeting, Principal Kircher questioned Plaintiff about

his “conduct,” but not about the student’s behavior or the issues that precipitated

the email. (Id. ¶ q). After the meeting, Plaintiff never received any follow-up

communication from Principal Kircher or anyone else who attended the meeting.

Second Medical Leave and Retirement

Plaintiff contracted COVID-19 and was out sick between January 4, 2022,

and January 14, 2022. On January 18, 2022, Plaintiff was “told for the first time”

by an unnamed person that he would be deposed regarding a lawsuit involving a

student and Hatboro-Horsham.2 (Id. ¶ s). Plaintiff was the only seventh-grade

teacher required to give a deposition.

On January 21, 2022, Plaintiff attempted to review the student guidance

files, including the file of the student involved in the lawsuit. When Guidance

2 Plaintiff does not allege that the lawsuit between the student and Defendant has any relation to the

instant case.

Counselor Osborne saw Plaintiff looking at the files, Osborne “yelled at” Plaintiff

and took the files back. (Id. ¶ t). Plaintiff then asked HHEA President Moore

whether he could review the files, and Moore told Plaintiff that he “had every right

to review the files.” (Id. ¶ a).

On February 3, 2022, Plaintiff returned home from work and took his blood

pressure, which registered as high. The following day, Plaintiff met with his

cardiologist, who administered an electrocardiogram (EKG) and echocardiogram,

which were abnormal. Plaintiff’s cardiologist removed Plaintiff from work

indefinitely. Plaintiff notified Defendant of his retirement about a year later, on

February 6, 2023.

LEGAL STANDARD

Federal Rule of Civil Procedure (“Rule”) 12(b)(6) governs motions to dismiss, providing

that a complaint must be dismissed when it fails to state a claim upon which relief may be granted.

Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the plaintiff must plead enough facts,

taken as true, to plausibly show the plaintiff is entitled to relief. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). The court “must accept all of the complaint’s well-pleaded facts as true, but

may disregard any legal conclusions.” Fed. R. Civ. P. 12(b); Fowler, 578 F.3d at 210–11. The

plaintiff must support legal conclusions with factual allegations, and the court should assume the

veracity of the factual allegations when considering whether they “plausibly give rise to an

entitlement to relief.” Iqbal, 556 U.S. at 679; see also Fowler, 578 F.3d at 210–11; Wilkerson v.

New Media Tech. Charter Sch., Inc., 522 F.3d 315, 322 (3d Cir. 2008). Plausible does not mean

possible or probable, but rather that the plaintiff has pleaded enough facts such that the court can

draw a reasonable inference that the defendant has violated the law. Id. at 678.

At the motion to dismiss stage, the court “may not consider matters extraneous to the

pleadings.” In re Burlington Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citing Angelastro v.

Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985)). However, the court may rely on

documents “integral to or explicitly relied upon in the complaint.” Id. (citing Shaw v. Digit. Equip.

Corp., 82 F.3d 1194, 1220 (3d Cir. 1996)). As noted, Plaintiff’s allegations are gleaned from his

EEOC Complaint, attached as Exhibit A to Plaintiff’s Complaint.3 Thus, the Court will consider

Plaintiff’s June 3, 2022 EEOC Charge of Discrimination in evaluating the motion to dismiss.

DISCUSSION

As noted, Plaintiff asserts several claims against Defendant for the treatment he endured at

KVMS in the years leading to his retirement, to wit: discrimination and hostile work environment

claims under the ADA; discrimination and hostile work environment claims under the ADEA; and

state-law discrimination and hostile work environment claims under the PHRA. Because the

ADEA, the ADA, and Title VII of the Civil Rights Act of 1964 are nearly identical and serve the

same purpose—preventing discrimination in the workplace—“the methods and manners of proof

under one statute should inform the standards under the other as well.” Walton v. Mental Health

Ass’n of Se. Pa., 168 F.3d 661, 666 (3d Cir. 1999) (quoting Newman v. GHS Osteopathic, Inc., 60

F.3d 153, 157 (3d Cir. 1995)) (noting that when there is no material difference in the question being

addressed, the court will treat Title VII and ADEA caselaw as interchangeable).4

Defendant moves to dismiss Plaintiff’s claims on the basis that (1) the claims are untimely

and (2) Plaintiff has failed to state a claim. This Court will address each of Defendant’s arguments

in turn.

3 On June 3, 2022, Plaintiff dual-filed his charge of discrimination with the EEOC and Pennsylvania

Human Relations Commission (“PHRC”). On January 31, 2023, the EEOC issued a dismissal of charges

and a right to sue notice.

4 Pennsylvania courts have interpreted the PHRA in accordance with its federal counterpart statutes,

including the ADA and ADEA. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (citing Gomez v.

Allegheny Health Servs., Inc., 71 F.3d 1079, 1083–84 (3d Cir. 1995)). Likewise, the United States Court

of Appeals for the Third Circuit (the “Third Circuit”) has expressly applied equal analysis between the

ADEA and PHRA. See Martinez v. UPMC Susquehanna, 986 F.3d 261, 265 (3d Cir. 2021); see also Fasold

v. Justice, 409 F.3d 178, 184 n.8 (3d Cir. 2005) (stating the PHRA should be applied identically to federal

anti-discrimination law unless the language of the statutes expressly differs)). As such, this Court will

analyze Plaintiff’s PHRA claims as coextensive with his ADA and ADEA claims.

Timeliness

Defendant argues that all of Plaintiff’s employment discrimination claims are untimely

because they were not commenced within the applicable statutory time limits. Plaintiff disagrees

and argues that his claims are timely because (1) his discrimination claim is premised on his

constructive discharge—a discrete act that occurred within the statutory period—and (2) his hostile

work environment claims are premised on the continuing violation theory.

Prior to filing a cause of action in federal court, a plaintiff seeking to bring an employment

discrimination claim in federal court under the ADA, ADEA, and PHRA must exhaust “all required

administrative remedies.” Mandel v. M&Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013)

(citing Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997)); see 42 U.S.C. § 2000e-5(e)(1);

29 U.S.C. § 626; 43 Pa. Cons. Stat. § 959(h); see also Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 393 (1982). Generally, a plaintiff must commence the administrative exhaustion process by

filing a charge of discrimination under the EEOC within 180 days of the alleged unlawful

employment practice. 42 U.S.C. § 2000e-5(e)(1). However, in a “deferral state,” like

Pennsylvania, the 180-day EEOC time limit is increased to 300 days when the aggrieved individual

first or simultaneously institutes proceedings with the governing state or local agency. Id. § 2000e-

5(e)(1). After a plaintiff files an EEOC complaint and receives a dismissal notice and right-to-sue

letter from the EEOC, the claim is considered exhausted, and the plaintiff may bring suit in federal

court. Mandel, 706 F.3d at 163 (citing Robinson, 107 F.3d at 1020–21). Here, Plaintiff is subject

to the 300-day requirement when filing his administrative charge of discrimination with the EEOC,

42 U.S.C. § 2000e-5(e)(1), and the 180-day requirement when filing with the PHRC, 43 Pa. Cons.

Stat. § 959(h).

A cause of action for employment discrimination accrues, and the statute of limitations

begins to run, when the plaintiff knows or has reason to know of the injury that is the basis for the

action. Burkhart v. Widener Univ. Inc., 70 F. App’x 52, 53 (3d Cir. 2003). “In a discrimination

case, the focus is on when the discriminatory act occurs, not when the consequences of that act

become painful.” Id. (citing Chardon v. Fernandez, 454 U.S. 6, 8 (1981)). When a claim is

premised on an adverse action, such as “termination, failure to promote, denial or transfer, or

refusal to hire,” the court may readily identify when the claim accrued on the face of the pleadings.

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).

“Each discrete discriminatory act starts a new clock for filing

charges alleging that act.” Morgan, 536 U.S. at 112. Discrete acts

such as “termination, failure to promote, denial of transfer, or refusal

to hire” are easily identifiable, and those discrete acts that fall

outside the time period are not actionable. Id. at 115. However,

such time barred acts can be used as “background evidence” to

support a timely claim. Id. at 112.

Emmell v. Phoenixville Hosp. Co., 303 F. Supp. 3d 314, 325 (E.D. Pa. 2018).

Claims of hostile work environment often are not discrete adverse employment actions.

See Mandel, 706 F.3d at 165. At times, an individual discriminatory act is not actionable on its

own, but in the aggregate such act may amount to a hostile work environment. See id. Therefore,

the court must look at the alleged facts to determine which, if any, amount to discrete adverse

employment actions. See id. at 166 (indicating that the court must distinguish between isolated

occurrences and patterns of discrimination); see also O’Connor v. City of Newark, 440 F.3d 125,

127 (3d Cir. 2006) (noting that the court must typify allegations by either discrete acts or those

allegations that, in the aggregate, amount to a hostile work environment).

I. Timeliness of the Constructive Discharge Claims

Both the ADA and ADEA require that a plaintiff allege an adverse employment action to

state a discrimination claim. Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998) (citing

Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996)). Here, Plaintiff alleges that he suffered an

adverse employment action when he was constructively discharged from his teaching position with

Defendant.5 In response to Defendant’s timeliness argument, Plaintiff argues that following the

series of unfortunate events during the 2021–22 school year, Plaintiff’s cardiologist indefinitely

removed him from his teaching position in February 2022. Plaintiff never returned to work and

eventually retired.

Plaintiff argues that based on the series of events in 2021, his constructive termination or

discharge occurred in February 2022 when he was forced to leave his employment on doctor’s

orders. Plaintiff filed his administrative charges with the EEOC and PHRC on June 3, 2022,

approximately four months (or 120 days) after his alleged constructive discharge. Because

Plaintiff filed his charges well within the 300-day limitations period for the EEOC and the 180-

day limitations period for the PHRC, this Court finds that Plaintiff’s employment discrimination

claims under the ADA and ADEA, premised on his constructive discharge, are timely. See 42

U.S.C. § 2000e-5(e)(1); 43 Pa. Cons. Stat. § 959(h).

II. Timeliness of the Hostile Work Environment Claims

As to Defendant’s timeliness challenge to Plaintiff’s hostile work environment claims,

Plaintiff argues that these claims are also timely under the continuing violation doctrine. This

doctrine is an “equitable exception” to the EEOC and PHRC’s timely filing requirement for cases

where the defendant’s conduct is part of a continuing practice of discrimination. Shenkan v. Potter,

5 Further analysis concerning whether Plaintiff has alleged sufficient facts to sustain the constructive

discharge claims will follow later in this memorandum.

71 F. App’x 893, 894–94 (3d Cir. 2003) (citing Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.

2001)). The Third Circuit summarized this exception and its requirements as follows:

Under the continuing violation doctrine, discriminatory acts that are

not individually actionable may be aggregated to make out a hostile

work environment claim; 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.” O’Connor, 440 F.3d at 127 (citing

Morgan, 536 U.S. at 105) (explaining court may consider “entire

scope of a hostile work environment claim . . . so long as any act

contributing to that hostile environment takes place within the

statutory time period”)). A hostile work environment claim “is

composed of a series of separate acts that collectively constitute one

‘unlawful employment practice’” and “cannot be said to occur on

any particular day.” Morgan, 536 U.S. at 115–17. To allege a

continuing violation, the plaintiff must show that all acts which

constitute the claim are part of the same unlawful employment

practice and that at least one act falls within the applicable

limitations period. See Morgan, 536 U.S. at 122; see also West v.

Phila. Elec. Co., 45 F.3d 744, 754–55 (3d Cir. 1995) (explaining

plaintiff must show that at least one act occurred within the filing

period and that the harassment is “more than the occurrence of

isolated or sporadic acts of intentional discrimination”).

Mandel, 706 F.3d at 165–66.

Here, in his complaint, Plaintiff has alleged at least an instance of discrimination occurring

within the applicable statute of limitations. Specifically, Plaintiff alleges that in January 2022, he

was singled out to be deposed in a lawsuit involving a student and Hatboro-Horsham. Plaintiff

was informed that he would be deposed on the day of the deposition (just four days after he

returned to work after contracting COVID-19), and then was berated by Osborne for reviewing

that student’s files when he “had every right to.” (Compl. Ex. A., ECF 1-1, ¶ t). This alleged

discriminatory act occurred within the time period for Plaintiff to file a timely claim.

In his complaint, Plaintiff also alleges several other discriminatory acts that occurred prior

to and outside the applicable limitations period involving similar conduct by many of the same

individuals. For example, Plaintiff alleges that he was subjected to numerous false accusations,

followed by the police around the school parking lot at the behest of Principal Kircher, and called

a “pussy” by Assistant Principal Ewerth. (Id. ¶ e). These actions suggest an ongoing pattern

creating a hostile environment. At this stage, this Court finds that these alleged facts are sufficient

to plausibly show entitlement to relief on both of Plaintiff’s hostile work environment claims based

on the continuing violation doctrine. See Mandel, 706 F.3d at 166.

Based on the foregoing analysis, this Court finds Plaintiff’s claims were timely filed.

Failure to State a Claim

Defendant also argues that Plaintiff has failed to state a claim under the ADA, the ADEA,

and the PHRA. Specifically, Defendant argues that Plaintiff has failed to plead facts to show (a)

an adverse employment action sufficient to sustain his discrimination claims or (b) severe or

pervasive discrimination to support his hostile work environment claims. Plaintiff disagrees.

To plead employment discrimination under the ADA or ADEA, the plaintiff must plead

facts in support of all of the prima facie elements of each claim. See Fowler, 578 F.3d at 212

(evaluating an employment discrimination claim on pleadings by discussion of facts supporting

each prima facie element of the claim). It is not enough to plead facts supporting some, but not

all, of the elements of a prima facie case of discrimination. See id. To survive a motion to dismiss,

the plaintiff is not required to establish the elements of a prima facie case, an evidentiary standard,

but rather must plead sufficient facts such that the allegations raise the expectation that discovery

will reveal evidence for each element. Id. at 213 (citing Graff v. Subbiah Cardiology Assocs., Ltd.,

2008 WL 2312671, at *4 (W.D. Pa. June 4, 2008)); Phillips v. Cnty. of Allegheny, 515 F.3d 224,

234 (3d Cir. 2008).6

6 In its motion to dismiss, Defendant relies on Mejias v. C&S Wholesale Grocers, Inc., which notes

that plaintiffs need only plead facts plausibly alleging some, but not all, of the prima facie elements of an

employment discrimination case. 2020 WL 3971021, at *3 (E.D. Pa. July 14, 2020). This is not, however,

I. ADA Claims

A. Discrimination

As noted, Plaintiff asserts that he was constructively discharged because of his disability

in violation of the ADA. Defendant moves to dismiss this claim, arguing that Plaintiff has not

alleged a “single, legitimate adverse action that was taken against” him due to his disability.

(Def.’s Br., ECF 5-1, at p. 12). Defendant also argues, in a single sentence relegated to a footnote,

that Plaintiff has failed to allege facts illustrating how Plaintiff’s disability interferes with his

ability to work. Finally, Defendant argues that Plaintiff has failed to plead facts showing that the

adverse action he suffered was as a result of his disability. Defendant’s arguments are, however,

misguided at this stage of the proceedings.

To assert a discrimination claim under the ADA, a plaintiff must allege facts sufficient to

plausibly show that: (1) the plaintiff is disabled under the ADA; (2) the plaintiff can perform the

essential functions of his job, with or without reasonable accommodations from his employer; and

(3) he has suffered an adverse employment decision (4) as a result of the discrimination. Gaul,

134 F.3d at 580 (citing Shiring, 90 F.3d at 831). In his complaint, Plaintiff avers that he is disabled

due to a heart condition, high blood pressure, and dysautonomia. Prior to his alleged constructive

discharge, Plaintiff had been a teacher for over thirty-five years. Plaintiff also avers that he was

forced to retire against his will.

the correct standard. The Mejias court cites Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), a case

overruled by Twombly and Iqbal. See Fowler, 578 F.3d at 211 (holding that courts should not rely on

Swierkiewicz insofar as courts have previously relied on the now-overturned “no set of facts” standard from

Conley v. Gibson, 355 U.S. 41 (1957), because Swierkiewicz allowed a plaintiff to plead an employment

discrimination case under the “no set of facts” standard). Plaintiff also relies on this lowered pleading

standard in his brief in opposition. (Pl.’s Resp. in Opp., ECF 8-1, at p. 3) (“Moreover, for the purpose of

stating a claim of discrimination, a [p]laintiff is not required to meet all the elements of a prime facie case,

since that is an evidentiary, and not a pleading standard . . . .”) (citing Connelly v. Lane Constr. Corp., 809

F.3d 780, 789 (3d Cir. 2016)).

An adverse employment action occurs when an employer “discharges, refuses to hire, or

makes a decision that is serious enough to alter the employee’s compensation, terms, conditions,

or privileges of employment.” Grossberg v. Hudson Cnty. Dep’t of Hum. Servs., 740 F. App’x 762,

764 (3d Cir. 2018) (citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997); 42

U.S.C. § 2000e-2(e)). Voluntary retirements are not adverse employment actions. Leheny v. City

of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999). An employee’s retirement is presumed to be

voluntary unless an employee alleges facts supporting the retirement’s involuntary nature. Id. A

retirement may be considered a constructive discharge—and, thus, an adverse employment

action—when the plaintiff alleges facts to support the notion that the “employer knowingly

permit[ted] conditions of discrimination in employment so intolerable that a reasonable person

subject to them would resign.” Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 316 n.4 (3d Cir.

2006) (citing Goss v. Exxon Office Sys. Co., 747 F.2d 885, 887 (3d Cir. 1984)). This objective test

requires that the alleged working conditions be “intolerable.” Gray v. York Newspapers, Inc., 957

F.2d 1070, 1079 (3d Cir. 1992) (citing Goss, 747 F.3d at 887–88) (“[T]he conduct complained of

would have the foreseeable result that working conditions would be so unpleasant or difficult that

a reasonable person in the employee’s shoes would resign.”) (internal quotations omitted)).

“Intolerable” does not mean that a reasonable person would view retirement as the best decision

in the plaintiff’s circumstances; rather, intolerable means a reasonable person would feel

“compelled to resign” if they were in the plaintiff’s position. Connors v. Chrysler Fin. Corp., 160

F.3d 971, 976 (3d Cir. 1998) (citation omitted).

Constructive discharge claims are highly fact-specific and, generally, are not appropriate

for judgment prior to discovery. See Hill v. Borough of Kutztown, 455 F.3d 225, 233 n.7 (3d Cir.

2006) (“It would have been inappropriate for the District Court to decide that fact-intensive

question [of constructive discharge] in the context of a 12(b)(6) motion.”). That is:

“Claims of constructive discharge are highly fact-specific and

depend upon the particular circumstances and evidence of each

case,” making this claim “unsuitable for judgment on the

pleadings.” Lebofsky v. City of Philadelphia, 2007 WL 1217874, at

*4 (E.D. Pa. Apr. 24, 2007); Levendos v. Stern Ent., Inc., 860 F.2d

1227, 1230 (3d Cir. 1988) (“Constructive discharge is a heavily fact-

driven determination.” (internal quotation marks omitted)). Because

of this, it is often “inappropriate for the district court to decide that

fact-intensive question in the context of a 12(b)(6) motion.” Hill,

455 F.3d at 233 n.7; Niehoff v. SPS Techs., Inc., No. 16-3301, 2016

WL 6648618, at *5 (E.D. Pa. Nov. 10, 2016) (“It is not appropriate

for the court to delve into such a ‘fact-intensive question’ of

constructive discharge on a motion to dismiss under Rule 12(b)(6)”).

Thompson-Lyons v. Cmty. Dental of Hamilton, P.C., 2022 WL 3354729, at *3 (D.N.J. Aug. 12,

2022) (alterations omitted).

Here, Defendant contends that Plaintiff has failed to allege facts to support an actionable

constructive discharge under Stucke v. City of Philadelphia, 2015 WL 2231849, at *5 (E.D. Pa.

May 12, 2015), aff’d, 685 F. App’x 150 (3d Cir. 2017). Defendant’s reliance on Stucke is

misplaced. The Stucke court, relying on the Third Circuit’s decision in Colwell v. Rite Aid,

enumerated a list of factors relevant to the determination of whether a plaintiff suffered a

constructive discharge. Id. (citing Colwell v. Rite Aid Corp., 602 F.3d 495, 503 (3d Cir. 2010)).

Both the Stucke and Colwell courts, however, considered and applied these factors when

adjudicating the defendants’ motions for summary judgment. Id. at *1; Colwell, 602 F.3d at 498.

The factors discussed and applied in Stucke derive from the Third Circuit’s approach to assessing

evidence at the summary judgment stage and are, therefore, not appropriate for determining

whether Plaintiff has stated a claim for constructive discharge at the pleading stage. Clearly, at the

motion to dismiss stage, “an evidentiary standard is not a proper measure of whether a complaint

fails to state a claim.” Fowler, 578 F.3d at 213 (citing Powell v. Ridge, 189 F.3d 387, 394 (3d Cir.

1999)). Thus, the chief inquiry is whether Plaintiff has alleged sufficient facts to plausibly allege

constructive discharge based on the circumstances leading up to his retirement. Any inquiry into

whether a reasonable person would have felt compelled to resign in Plaintiff’s position is

appropriately reserved for the factfinder, not this Court at the motion to dismiss stage. See Hill,

455 F.3d at 233 n.7. Based on the allegations in the complaint, this Court finds that Plaintiff has

plausibly alleged, at this stage, facts sufficient to show that he was subjected to an adverse

employment action.

Defendant also argues, in a single-sentence footnote, that Plaintiff has not alleged how his

medical condition “actually” interfere[d] with his ability to work. (Def.’s Br., ECF 5-1, at p. 12).

At best, Defendant misunderstands the elements required to plead an ADA claim. Plaintiff need

only allege that he can perform the essential functions of his job—i.e., teaching seventh-grade

students—with or without reasonable accommodations. Gaul, 134 F.3d at 580 (noting the

elements of a prima facie case of discrimination under the ADA). Whether a plaintiff’s disability

“actually interferes” with his ability to work is, at this stage of the proceedings, inconsequential to

a claim of discrimination under the ADA. See id.

Finally, Defendant argues that Plaintiff has not alleged facts sufficient to plausibly show

that he suffered an adverse employment action as a result of his disability. Again, Defendant is

mistaken. As alleged, the discriminatory behavior directed at Plaintiff by KVMS principals and

administrators began after Plaintiff’s return from his first medical leave and led up to and

precipitated Plaintiff’s forced second medical leave and subsequent involuntary retirement. These

facts must be accepted as true at this stage. Plaintiff also alleges that Principal Kircher told Plaintiff

that Kircher’s own father suffered from medical conditions similar to Plaintiff’s, that his father

was now retired, and that Plaintiff’s medical conditions were far worse. In addition, Plaintiff “was

facing unresolved disciplinary action when he went out on medical leave because of a medical

condition caused or aggravated by the discriminatory treatment he was subjected to, which

condition continued such that he was forced to retire.” (Pl.’s Resp. in Opp., ECF 8-1, at p. 7; see

also Compl. Ex. A., ECF 1-1, ¶¶ r, s, t, u). Further, just days after returning to work after

contracting COVID-19, Plaintiff was told for the first time that he would be deposed in a legal

matter regarding a Hatboro-Horsham student and was unable to review the student’s file, actions

which exacerbated Plaintiff’s medical conditions and ultimately led to his doctor removing him

from work. Likewise, Plaintiff alleges that nondisabled teachers did not face similar disciplinary

action or accusations. Based on Plaintiff’s allegations, this conduct was directed at him because

of his medical conditions, and intended to make his work life intolerable and stressful such that he

would be forced to resign. Under these circumstances, Plaintiff has pleaded sufficient facts to

plausibly show that he suffered an adverse employment action due to his disability.

For the foregoing reasons, Defendant’s motion to dismiss Plaintiff’s ADA and PHRA

disability discrimination claims is denied.

B. Hostile Work Environment

Plaintiff also asserts a claim for hostile work environment under the ADA based on his

alleged disability. Defendant argues Plaintiff has failed to allege facts sufficient to plausibly

support the conclusion that his alleged discrimination was severe or pervasive, and that Plaintiff

has failed to allege intentional discrimination because of his disability. Defendant’s argument is

unpersuasive.

To state a claim under the ADA for hostile work environment, Plaintiff must allege facts

sufficient to plausibly show that (1) he suffered intentional discrimination because of his disability,

(2) the discrimination was “sufficiently severe or pervasive to alter the conditions of [his]

employment and create an abusive work environment,” (3) he was detrimentally affected by the

discrimination, and (4) it would have detrimentally affected a reasonable person in h[is] position.

Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 132 (E.D. Pa. 2020); Mercer v. Se. Pa.

Transit Auth., 26 F. Supp. 3d 432, 443 (E.D. Pa. 2014); see also Walton, 168 F.3d at 667

(concluding that a cause of action for workplace harassment exists under the ADA).

Notably, to sustain a claim for hostile work environment, the discrimination must be either

severe or pervasive; the alleged discrimination need not be both severe and pervasive. Castleberry

v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017). Isolated instances may be severe enough to create

a hostile work environment, and a less-severe series of instances may be pervasive enough to create

a hostile work environment. Id. (citing Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006)). In

deciding whether a plaintiff has sufficiently pleaded severe or pervasive discrimination, “the court

must look [] at all the circumstances, including the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.” Triangle Doughnuts,

472 F. Supp. 3d at 132 (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001))

(internal quotations omitted).

As noted, Defendant argues that Plaintiff has failed to plausibly allege that the

discrimination he experienced was severe or pervasive. Defendant is, however, mistaken. In the

complaint, Plaintiff has alleged numerous instances that interfered with his work performance. For

example, he experienced threats of disciplinary action for unfounded accusations throughout his

time at KVMS. Plaintiff further alleges he was subjected to an unwarranted disciplinary hearing

without receiving any follow-up; was followed by a police cruiser at the behest of Principal Kircher

and experienced repeated, unwarranted classroom disruptions from Osborne; was falsely accused

of having drugs on school property; and was falsely accused of using a racial slur. See Hargrave

v. Cnty. of Atl., 262 F. Supp. 2d 393, 404–07 (D.N.J. 2003) (noting false accusations were sufficient

to support the EEOC finding discrimination for the complainant at the pre-litigation administrative

exhaustion stage). Taking all of these allegations as true, this Court finds that Plaintiff has

plausibly alleged facts sufficient to show that the discrimination he suffered was severe for

purposes of his hostile work environment claims under the ADA. Likewise, Plaintiff has plausibly

alleged facts sufficient to show that the discrimination was pervasive, as he alleges disparaging

treatment by his supervisors and colleagues over a period of several years that made evident to

Plaintiff that he was not a welcome member of KVMS.

Defendant also argues that Plaintiff has failed to allege facts to show that he was subjected

to intentional discrimination because of his disability. This Court disagrees. In the complaint,

Plaintiff alleges that he suffered multiple instances of discrimination over the course of his tenure

at KVMS due to his disability. As discussed supra, Plaintiff has alleged facts sufficient to show

discriminatory actions and conduct against and toward him that nondisabled teachers did not

experience. This conduct commenced when Plaintiff returned to work from his first medical leave

until the time of his final, involuntary medical leave. As pleaded, Plaintiff was falsely accused of

various employment infractions on multiple occasions, wrongfully subjected to a disciplinary

hearing, demeaned by Principal Kircher, and followed by the police in the parking lot at the behest

of someone at KVMS—all after Kircher became aware of and commented about Plaintiff’s

medical conditions. Cf. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996)

(noting that false accusations, coupled with racially charged comments, constituted evidence of a

hostile work environment at the summary judgment stage). Thus, Plaintiff has sufficiently alleged

facts to support his claim that he was subjected to intentional discrimination. As such, Defendant’s

motion to dismiss Plaintiff’s ADA and PHRA hostile work environment claims is denied.

II. ADEA Claims

A. Discrimination

Plaintiff also asserts a discrimination claim under the ADEA. Defendant moves to dismiss

this claim, arguing that Plaintiff has failed to allege facts sufficient to plausibly show that (1) he

suffered an adverse employment action and (2) he was “replaced by a sufficiently younger person.”

(Def.’s Br., ECF 5-1, at p. 17). However, Defendant is incorrect in both arguments.

To state a viable age discrimination claim under the ADEA, the plaintiff must allege facts

plausibly showing that: (1) he is at least forty years old; (2) he is qualified for the job; (3) he

suffered an adverse employment action; and (4) the adverse employment action was more likely

than not based on consideration of impermissible factors, in this instance age. Willis v. UPMC

Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (citing Pivirotto v. Innovative

Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)). Here, as with Plaintiff’s ADA claim, Plaintiff has

alleged facts sufficient to plausibly show that he was constructively discharged from his teaching

position. As such, contrary to Defendant’s repeated argument, Plaintiff has sufficiently alleged an

adverse employment action.

With respect to Defendant’s second argument, i.e., that Plaintiff failed to allege that he was

replaced by a younger person, Defendant misstates the elements necessary to plead an ADEA

claim. Contrary to Defendant’s argument, Plaintiff need not allege he was replaced by a

sufficiently younger person, but rather that the adverse employment action—i.e., the constructive

discharge—was more likely than not based on Defendant’s consideration of an impermissible

factor, such as age. See Willis, 808 F.3d at 644 (“Where the plaintiff is not directly replaced, the

fourth element is satisfied if the plaintiff can provide facts which ‘if otherwise unexplained, are

more likely than not based on the consideration of impermissible factors.’”) (quoting Pivirotto,

191 F.3d at 352).7

Plaintiff proffers numerous factual allegations to support the inference that his constructive

discharge was based on his age. In the complaint, Plaintiff alleges that “younger” teachers were

not subjected to the same treatment as Plaintiff by Principal Kircher, Assistant Principal Ewerth,

and Guidance Counselor Osborne. Plaintiff also offers two comparators, namely, women in their

“late fifties or sixties” who Plaintiff alleges were similarly forced to retire before they were ready

to do so. (Compl. Ex. A, ECF 1, ¶¶ 9–10); see Jenkins v. Polysciences, Inc., 2017 WL 1261689,

at *2 (E.D. Pa Mar. 29, 2017) (citing Greene v. V.I. Water & Power Auth., 557 F. App’x 189, 195

(3d Cir. 2014) (“In order to properly plead the fourth element [of an ADEA claim], the plaintiff

can [] introduce evidence of comparators (i.e., similarly situated employees who (a) were not

members of the same protected class and (b) were treated more favorably under similar

circumstances) . . . .”).

Notwithstanding, Defendant also argues that a supervisor questioning an employee about

the employee’s age and retirement does not constitute “evidence” of discrimination. (Def.’s Br.,

ECF 5-1, at p. 17) (citing Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 512 (3d Cir. 2004)). At

the motion to dismiss stage, however, Principal Kircher’s inquiry into Plaintiff’s retirement

supports an inference of discrimination. See Lamonde v. Bath Saver, Inc., 2022 WL 622739, at

*4–5 (E.D. Pa. Mar. 3, 2022) (noting that a “backdrop” of questioning about retirement at the

7 The fourth element of an ADEA claim may also be sufficiently pleaded by alleging facts to support

that the plaintiff was “ultimately replaced by a person sufficiently younger to permit an inference of age

discrimination.” Billet v. CIGNA Corp., 940 F.2d 812, 816 n.3 (3d Cir. 1991).

pleading stage supported an inference of discrimination sufficient to state a plausible hostile work

environment claim).

For the foregoing reasons, Defendant’s motion to dismiss with respect to Plaintiff’s ADEA

and PHRA age discrimination claims is denied.

B. Hostile Work Environment

Plaintiff also asserts a claim for hostile work environment under the ADEA. Defendant

argues that the mistreatment Plaintiff alleges is “neutral with respect to age” and indicative of a

“bad working relationship” rather than because of Plaintiff’s age. (Def.’s Br., ECF 5-1, at p. 18)

(citing Howell v. Millersville Univ. of Pa., 283 F. Supp. 3d 309, 332 (E.D. Pa. 2017)). Defendant

also argues, as it did with Plaintiff’s ADA hostile work environment claim, that Plaintiff has failed

to allege severe or pervasive discrimination. Plaintiff disagrees.

To state a claim under the ADEA for hostile work environment, Plaintiff must allege facts

sufficient to plausibly show that: (1) he suffered intentional discrimination because of his age; (2)

the discrimination was severe or pervasive; (3) the discrimination detrimentally affected him; (4)

the discrimination would detrimentally affect a reasonable person in like circumstances; and (5)

the existence of respondeat superior liability. Castleberry, 863 F.3d at 263; Barber v. CSX Distrib.

Servs., 68 F.3d 694, 698 (3d Cir. 1995) (establishing that ADEA claims follow the elements of Title

VII claims). Respondeat superior liability generally requires that harassment come from a

supervisor. See Huston v. Proctor & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir.

2009). However, employers may be liable for harassment from co-workers “if the employer failed

to provide a reasonable avenue for complaint or, alternatively, if the employer knew or should have

known of the harassment and failed to take prompt and appropriate remedial action.” Id. (citing

Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001); Kunin v. Sears Roebuck & Co., 175 F.3d

289, 293 (3d Cir. 1999)).

For similar reasons discussed with respect to Plaintiff’s ADA hostile work environment

claim, Plaintiff’s factual allegations satisfy the pleading requirements for an ADEA hostile work

environment claim, as Plaintiff plausibly alleges harassment in connection with his age. As noted,

in the complaint, Plaintiff alleges two women over the age of forty were similarly forced into

retirement as Plaintiff, and that he suffered continued mistreatment from Principal Kircher and

assistant principals at KVMS. For example, Plaintiff alleges Principal Kircher shouted down the

hallways during the school day to Plaintiff, calling him a “pussy.” (Compl. Ex. A., ECF 1-1, ¶ e).

Likewise, Principal Kircher, Assistant Principal Ewerth, and teacher Wendy King made comments

to Plaintiff about his retirement. Taking these and Plaintiff’s other allegations as true, as this Court

must, this Court finds Plaintiff has sufficiently pleaded facts sufficient to show severe or pervasive

discrimination in connection with his hostile work environment claim under the ADEA.

Furthermore, respondeat superior liability can be inferred in the instant case because Principal

Kircher and the various assistant principals who are alleged to have discriminated against Plaintiff

were his supervisors. There is no debate that Principal Kircher was Plaintiff’s supervisor.

Likewise, Plaintiff alleges that Guidance Counselor Osborne was a friend of Principal Kircher,

who ostensibly knew of the discriminatory conduct coming from Osborne.8 Taking all of these

allegations as true, Plaintiff has sufficiently alleged a hostile work environment claim under the

ADEA.

8 For example, Plaintiff alleges that after he was followed by the police, an unnamed KVMS staff

member overheard both Principal Kircher and Mr. Osborne talking about “having some fun with Stewart

Gross.” (Compl. Ex. A, ECF 1-1, ¶ h). This allegation suggests concert of action between the two, or at

the very least that Principal Kircher was aware of Osborne’s overall behavior.

Under the factual scenario pleaded, Defendant’s motion to dismiss with respect to

Plaintiff’s hostile work environment claims under the ADEA and PHRA is denied.

CONCLUSION

For the reasons set forth, Defendant’s motion to dismiss is denied in its entirety. An Order

consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, J.