# Gross v. HATBORO-HORSHAM SCHOOL DISTRICT

> District Court, E.D. Pennsylvania · July 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10405793

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** July 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10405793

## How later opinions describe it (automated extraction)

- noting that false accusations, coupled with racially charged comments, constituted evidence of a hostile work environment at the summary judgment stage
- stating the PHRA should be applied identically to federal anti-discrimination law unless the language of the statutes expressly differs
- concluding that a cause of action for workplace harassment exists under the ADA
- noting false accusations were sufficient to support the EEOC finding discrimination for the complainant at the pre-litigation administrative exhaustion stage

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10405793. Public record. Not legal advice.