AUTERI v. VIA AFFILIATES

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH S. AUTERI, M.D. :

: CIVIL ACTION

v. :

: NO. 22-3384

:

VIA AFFILIATES, d/b/a :

DOYLESTOWN HEALTH PHYSICANS. :

MEMORANDUM

SURRICK, J. OCTOBER 30, 2023

Presently before the Court is Defendant’s Motion to Dismiss Counts II and III of the

Complaint for Failure to State a Claim. (ECF No. 6). For the following reasons, Defendant’s

Motion is granted in part without prejudice and denied in part.

I. BACKGROUND

Plaintiff, Dr. Joseph Auteri, is a cardiac surgeon who was employed by Defendant

Doylestown Health from May 2007 to November 2021. (Compl., ECF No. 1, ¶¶ 10-11, 43, 130-

31; Medical Exemption Request, Compl., Ex. 3 at 67 (ECF pagination)). He contracted COVID-

19 in May 2021, and followed Defendant’s isolation requirements, including not being present

on site for fourteen days, before returning to work. (Id., ¶ 23; Medical Exemption Request at

67.)

On August 6, 2021, Defendant announced that it required all of its Doylestown Health

employees to receive the COVID-19 vaccine by October 11, 2021. (Compl., ¶¶ 38-39; Oct. 11,

2021 Letter from B. Foley to J. Auteri, Compl., Ex. 4 at 70.) Employees seeking a medical or

religious exemption from the vaccine mandate were required to request an exemption by

September 10, 2021. (Compl., ¶ 39.)

Plaintiff studied the emerging literature on potential dangers of the vaccine, including for

individuals with SARS-CoV-2 antigens in their system. (Id., ¶¶ 26-27, 45, 51-53.) Before and

after Defendant imposed a vaccine mandate, Plaintiff expressed concerns to Defendant’s Medical

Executive Committee, of which Plaintiff was a member, and representatives of Defendant about

the vaccine and its effect on individuals who had recovered from COVID-19. (Id., ¶¶ 26-34, 45,

48.) Plaintiff claims that after he expressed concerns, Defendant’s Chief Medical Officer and

other employees harassed and tried to intimidate him, among other negative behaviors. (Id., ¶¶

35-37, 46-47, 54-56, 61.)

Plaintiff did not submit a request for an exemption from the vaccine mandate by the

September 10 deadline. (Id., ¶ 40.) Plaintiff submitted two written requests, which were both

dated October 6, 2021, seeking medical and religious exemptions. (Id., ¶ 58; Religious and

Medical Exemption Requests, Compl., Ex. 3, at 65-68.) In his medical exemption request,

Plaintiff wrote that he “had a positive antigen test in May, and recently [was] tested for both

antibody as well as T-cell immunity.” (Medical Exemption Request at 67.) “Based on these

results my physician describes me as having ‘robust immunity,’” Plaintiff wrote. (Id.) He added

that he believes that “the natural God-given immunity one gets from having been infected

previously with Covid confers as good and in some cases better protection from a future covid

infection than any vaccination could.” (Id. at 68.) He concluded that “I am therefore requesting

this medical exemption since I believe [that] I am better protected than many others currently

working at the hospital.” (Id.)

In his religious exemption request, Plaintiff wrote that he is “being led by the Holy Spirit

to respectfully decline the Covid vaccine. I believe my body belongs to God. … I believe that

for me to ingest this vaccine is a violation of the Holy Spirit’s leading, and therefore would be

sin.” (Religious Exemption Request at 66.) Complying with the vaccine mandate would require

Plaintiff to “disobey God’s Word,” and he therefore wrote that he is “unable to submit” to the

mandate. (Id.)

On the deadline for all employees to be vaccinated, Plaintiff was suspended for thirty

days because he had not provided proof of vaccination. (Id., ¶¶ 39, 73; Oct. 11, 2021 Letter at

70.) Plaintiff was informed on October 11, 2021, that if he did not provide proof of vaccination

by November 10, 2021, the Medical Staff will accept that he has voluntarily resigned his

privileges at Doylestown Hospital. (Id.) His written exemption requests were denied on October

13, 2021. (Id., ¶ 78.)

Plaintiff also alleged that the Chief Medical Officer engaged in further harassing

behavior, including threatening Plaintiff that he would be fired if he was not inoculated. (Id., ¶¶

62-69.)

Plaintiff submitted a second exemption request through his counsel on October 22, 2021,

proposing that he test weekly for COVID-19 and submit a daily health screening as a reasonable

accommodation. (Id., ¶¶ 84-85, 87; Second Exemption Request, Compl., Ex. 6 at 76-81.)

Plaintiff alleges that he included a letter from his treating physician stating that the physician did

not recommend that Plaintiff be vaccinated against coronavirus. (Id., ¶ 86.) The letter was not

attached to the Complaint. Defendant, through its counsel, denied Plaintiff’s second exemption

request on November 9, 2021. (Id., ¶ 102.) With respect to Plaintiff’s medical exemption

request, Defendant claimed that Plaintiff’s physician did not provide sufficient information about

Plaintiff’s underlying medical condition to demonstrate that Plaintiff is entitled to an exemption

from the vaccination requirement. (Id., ¶ 103; Nov. 9, 2021 Letter from C. Durham to K.

Russell, Compl., Ex. 7 at 84.)

On November 11, 2021, two days after denying Plaintiff’s second exemption request,

Doylestown Hospital terminated Plaintiff’s medical privileges. (Id., ¶ 128.) Maintaining

medical privileges at Doylestown Hospital was a condition of his employment. (Id., ¶¶ 15-16,

130.) Defendant terminated Plaintiff a week later, on November 18, 2021. (Id., ¶¶ 130-31;

Nov. 18, 2021 Letter from J. Reiss to J. Austin, Compl., Ex. 9 at 95-96.)

Plaintiff filed this action on August 24, 2022, alleging: (Count I) a violation of Title VII

based on Plaintiff’s religious affiliation for religious discrimination and retaliation; (Count II) a

violation of the Americans with Disabilities Act (“ADA”) for disability discrimination and

retaliation; and (Count III) breach of contract. (Id., ¶¶ 167-209.) On October 24, 2022,

Defendant moved to dismiss Counts II and III of the Complaint for failure to state a claim.

(Mot., ECF No. 6.)

II. LEGAL STANDARD

“[A] plaintiff must allege ‘enough facts to state a claim to relief that is plausible on its

face’” in order to survive a motion to dismiss pursuant to Rule 12(b)(6). New Jersey Carpenters

& the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir.

2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A complaint has facial

plausibility when there is enough factual content ‘that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)). When considering the sufficiency of a complaint on a 12(b)(6)

motion, a court “must accept all factual allegations in the complaint as true and draw all

reasonable inferences in favor of the plaintiff.” Id. (citing Phillips v. Cnty. of Allegheny, 515

F.3d 224, 231 (3d Cir. 2008)). The court should also consider the exhibits attached to the

complaint and matters of public record. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

A complaint that merely alleges entitlement to relief, without alleging facts that show

such an entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d

Cir. 2009). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations.” Id. at

679. A complaint must contain “‘enough facts to raise a reasonable expectation that discovery

will reveal evidence of’ the necessary element.” Phillips, 515 F.3d at 234 (quoting Twombly,

550 U.S. at 556).

In determining whether dismissal of the complaint is appropriate, courts use a two-part

analysis. Fowler, 578 F.3d at 210. First, courts separate the factual and legal elements of the

claim and accept all of the complaint’s well-pleaded facts as true. Id. at 210-11. Next, courts

determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a

“‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679).

III. DISCUSSION

A. Count II: ADA Discrimination

Defendant argues that Plaintiff’s ADA discrimination claim should be dismissed because

Plaintiff has not pled that he has a qualifying disability under the ADA. (Mot. at 6-7, 9-10.) In

opposition, Plaintiff argues that his pleading regarding his disability satisfies the ADA

Amendments Act regulations, and that if Defendant did not believe that Plaintiff was disabled, it

was still obligated to engage in the interactive process. (Opp’n, ECF No. 9 at 7-10.)

Defendant’s Motion to Dismiss Count II of the Complaint is granted because Plaintiff has not

adequately alleged that he has a qualifying disability within the meaning of the ADA.

To state a claim under the ADA, “a plaintiff must show (1) that he is disabled within the

meaning of the ADA, (2) that he is otherwise qualified for the job, with or without reasonable

accommodations, and (3) that he was subjected to an adverse employment decision as a result of

discrimination.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010). The

ADA defines a disability as (1) “a physical or mental impairment that substantially limits one or

more major life activities of such individual;” (2) “a record of such an impairment”; or (3) when

an individual is “regarded as having such an impairment[.]” 42 U.S.C. § 12102(1).

“Major life activities” include but are not limited to “caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting,

bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,

interacting with others, and working.” Id. § 12102(2)(A). “[A] major life activity also includes

the operation of a major bodily function, including but not limited to, functions of the immune

system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,

circulatory, endocrine, and reproductive functions.” Id. § 12102(2)(B).

The ADA does not define the phrase “substantially limits.” Under 29 C.F.R. §

1630.2(j)(1)(ii), “[a]n impairment is a disability … if it substantially limits the ability of an

individual to perform a major life activity as compared to most people in the general

population.” (emphasis added.) “An impairment need not prevent, or significantly or severely

restrict, the individual from performing a major life activity in order to be considered

substantially limiting.” Id. Factors to analyze when determining whether an impairment is

substantial include the nature and severity of the impairment, the duration or expected duration

of the impairment, and its long-term impact. Olson v. General Elec. Astrospace, 101 F.3d 947,

952 (3d Cir. 1996).

The Equal Employment Opportunity Commission has released guidance regarding when

COVID-19 can constitute a disability under the ADA and notes that “[COVID-19] may be a

disability, but it is not always a disability.” Whitebread v. Luzerne Cnty., No. 22-133, 2023 WL

349939, at *4 (M.D. Pa. Jan. 20, 2023). “Whether [COVID-19] is an actual disability under the

ADA requires a ‘case-by-case determination.’” Id. Someone who is asymptomatic or has mild

symptoms will not have a qualifying disability under the ADA, but someone whose medical

condition substantially limits one or more major life activities will qualify. Id.

As a result, to survive a motion to dismiss a plaintiff must allege facts to show that the

“nature, severity, and duration” of COVID-19 symptoms “rose to the level where it substantially

limited one or more major life activities.” See Brown v. Clemens, No. 22-1067, 2023 WL

6216717, at *4 (M.D. Pa. Sept. 25, 2023); see also Payne v. Woods Serv., 520 F. Supp. 3d 670,

679 (E.D. Pa. 2021) (granting a motion to dismiss when a plaintiff did not allege “any facts

regarding his symptoms or impairments as a result of his COVID-19 diagnosis, and has not

alleged what ‘major life activity’ or activities he was unable to perform as a result”); Whitebread,

2023 WL 349939, at *4 (granting a motion to dismiss when “[t]he complaint is devoid of …

factual allegations to enable us to determine whether [plaintiff] had, in fact, tested positive for

the virus, the nature of her symptoms before the test, whether her stepson in fact tested positive

for COVID-19 or the nature and length of his symptoms.”).

The Complaint alleges that Plaintiff is a qualified individual with a disability “as the

functioning of his immune system has been impaired by [Plaintiff’s] infection with COVID-19.”

(Compl., ¶ 185.) The functioning of the immune system is a major life activity. See 42 U.S.C. §

12102(2)(B). However, Plaintiff has not alleged how his immune system has been substantially

limited since testing positive for COVID-19 more than five months before he was terminated. In

fact, Plaintiff alleged that he is “otherwise qualified to perform the essential function of his job

as a cardiac surgeon subject to his need for a reasonable accommodation” from Defendant’s

vaccine mandate. (Compl., ¶ 186.) In seeking a medical exemption, Plaintiff wrote in October

2021 that he had “robust immunity” and “believe[s that he is] better protected than many others

currently working at the hospital” because of the strength of his immunity. (Request for a

Medical Exemption at 67.) When Plaintiff tested positive for COVID-19 in May 2021, he

returned to work after fourteen days, and he does not allege that he experienced any subsequent

symptoms or impairments that substantially limited a major life activity. (Compl., ¶ 23; Request

for a Medical Exemption at 67.) Accordingly, Plaintiff has not alleged facts to show that he was

substantially limited by any physiological changes he may have experienced after contracting

COVID-19 to qualify as disabled under the ADA.

Plaintiff also alleged that he was concerned that the coronavirus vaccine could harm the

immune systems of those who had recovered from a prior infection. (Id., ¶¶ 27, 32, 45.) He

expressed concern to his employer about the potential “effect of the vaccine on [his] medical

condition (i.e. his altered immune system after contracting COVID-19).” (Id., ¶ 48; see also id.,

¶ 83 (stating that Plaintiff was “concern[ed] about the alteration of his immune system by his

prior COVID-19 infection and effects of the COVID-19 vaccine on those with that altered

immune system.”)) Here too, Plaintiff does not allege that he experienced symptoms or was

impaired “as compared to most people in the general population” to qualify as disabled under the

ADA. See 29 C.F.R. § 1630.2(j)(1)(ii). Accordingly, Defendant’s Motion to Dismiss Count II is

granted without prejudice.

B. Count II: ADA Retaliation

Defendant argues that Plaintiff’s ADA retaliation claim should be dismissed because

Plaintiff has not pled that he requested an accommodation in good faith. (Mot. at 10-12.)

In opposition, Plaintiff argues that Plaintiff had a good faith basis to believe that he was disabled

under the ADA and requested an accommodation because he believed that the vaccine could

injure his “impaired immune system.” (Opp’n at 10-11.) Defendant’s Motion to Dismiss Count

II of the Complaint is denied because construing the allegations in Plaintiff’s favor, he

sufficiently pleads that he had a reasonable, good faith belief that he was entitled to request a

reasonable accommodation to survive a motion to dismiss.

The ADA provides that “[n]o person shall discriminate against any individual because

such individual has opposed any act or practice made unlawful by [the ADA] or because such

individual made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203(a). “To establish a prima facie

case of retaliation under the ADA, a plaintiff must show: (1) protected employee activity; (2)

adverse action by the employer either after or contemporaneous with the employee’s protected

activity; and (3) a causal connection between the employee’s protected activity and the

employer’s adverse action.” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).

Requesting a reasonable accommodation is protected activity under the ADA. Sulima,

602 F.3d at 188. “[A]n ADA retaliation claim does not require that the plaintiff demonstrate a

disability within the meaning of the ADA, but only that the plaintiff has a ‘reasonable, good faith

belief that [he] was entitled to request the reasonable accommodation [he] requested.” Id. at 188

(quoting Williams v. Phil. Hous. Auth. Police Dept., 380 F.3d 751, 759 n.2, abrogated on other

grounds, see Robinson v. First State Comm. Action Agency, 920 F.3d 182, 188 n.30 (3d Cir.

2019)). In other words, “the protection from retaliation afforded under the ADA does not extend

to an employee whose request is motivated by something other than a good faith belief that

[they] need[] an accommodation.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191

(3d Cir. 2003). Congress did not intend to extend ADA coverage to “employees whose

motivation for requesting an accommodation is something other than a good faith belief that an

accommodation … is necessary or appropriate.” Shellenberger, 318 F.3d at 191. Courts look to

whether there is evidence that the individual requesting an accommodation “was motivated by

anything other than good faith” when evaluating whether a plaintiff requested an accommodation

reasonably and in good faith. Id.; Suarez v. Penn. Hosp. of Univ. Penn. Health Sys., No. 18-

1596, 2018 WL 6249711, at *10 (E.D. Pa. Nov. 29, 2018) (“There is nothing in the record to

indicate that her request for reinstatement under the ADA was unreasonable or in bad faith, so

the request could be construed as a protected activity even though she was not entitled to that

accommodation.”). Courts should be cautious and ensure that determining whether a plaintiff

“lacked a reasonable, good faith belief” that they are entitled to request an accommodation does

not “require a credibility determination.” See Schirnhofer v. Premier Comp Solutions, LLC, 303

F. Supp. 3d 353, 375 (W.D. Pa. 2018).

Some courts have held on summary judgment that a plaintiff did not have a reasonable,

good faith belief that they were entitled to request a reasonable accommodation when they

sought relief from a temporary condition. See Sulima, 602 F.3d at 188-89; Isley v. Aker

Philadelphia Shipyard, Inc., 191 F. Supp. 3d 466, 471 (E.D. Pa. 2016) (granting summary

judgment on ADA retaliation claim when “there is no evidence that Plaintiff believed his []

injury was anything other than a temporary condition”). Sulima involved an employee who

requested an accommodation related to side effects from a medication. 602 F.3d at 188. The

individual knew that his medical issues were caused by his medicine and that he could change

his medicine, as he had done before. Id. Affirming the district court’s grant of summary

judgment on the plaintiff’s ADA retaliation claim, the court found that “[t]here is no evidence

indicating that [plaintiff] believed his condition to be anything but temporary” and that, as a

result, when the plaintiff “requested the accommodation, he did not have a good faith belief that

he was disabled within the meaning of the ADA.” Id.

Here, accepting all factual allegations in the complaint as true and drawing all reasonable

inferences in favor of the plaintiff, Plaintiff alleged that he was concerned about negative side

effects from receiving the coronavirus vaccine and, in particular, that it might harm his immune

system. (Compl., ¶¶ 27, 45, 48-49, 51-53.) He alleged in his first Medical Exemption Request

that he believed that he had a “robust immunity” and believed that he was protected by his “God-

given immunity.” (Medical Exemption Request at 67-68.) Unlike Sulima and Isley, there is no

evidence that Plaintiff believed that any negative consequences from the vaccine would be short-

term or temporary. Without making credibility determinations and at this early juncture, we

cannot determine that Plaintiff made his request for an accommodation unreasonably or in bad

faith to dismiss the claim. Accordingly, Defendant’s Motion to Dismiss Count II of the

Complaint is denied.

C. Count III: Breach of Contract

Defendant argues that Plaintiff’s breach of contract claim (Count III) should be dismissed

because it is preempted by Plaintiff’s ADA and Title VII claims. (Mot. at 18-20.) Plaintiff

argues that his breach of contract claim is not preempted by his discrimination claims because he

sufficiently alleged that Defendant breached the parties’ employment agreement and the duty of

good faith and fair dealing. (Opp’n at 12-14.) We conclude that Plaintiff has not pled facts to

support his breach of contract claim that are independent of his Title VII and ADA claims.

Therefore, Count III of the Complaint is dismissed without prejudice.

State and federal discrimination laws preempt breach of contract claims “that arise solely

from alleged discriminatory conduct.” Weirich v. Horst Realty Corp., LLC, No. 07-871, 2007

WL 2071904, at *2 (E.D. Pa. July 13, 2007); see also Waggaman v. Villanova Univ., No. 04-

4447, 2008 WIL 4091015, at *21, n.29 (E.D. Pa. Sept. 4, 2008). When a plaintiff’s breach of

contract claim is “based entirely on the alleged acts of discrimination” that support the

discrimination claim and “no separate set of facts to support a breach of contract claim …

outside of the acts of discrimination” are pled, the contract claim must be dismissed. Styles v.

Philadelphia Elec. Co., No. 93-4593, 1994 WL 245469, at *3 (E.D. Pa. June 6, 1994); Weirich,

2007 WL 2071904, at *2.

However, when separate facts are pled to support a breach of contract claim independent

of a discrimination claim, the contract claim may survive a motion to dismiss. See Styles, 1994

WL 245469, at *3; Waggaman v. Villanova Univ., No. 04-cv-4447, ECF No. 24 at 4-5 (E.D. Pa.

filed Sept. 28, 2005); see also Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp. 1310, 1316-23,

1325 (E.D. Pa. 1994) (allowing a claim for breach of the implied covenant of good faith and fair

dealing to survive summary judgment when different facts supported the breach of contract and

discrimination claims). In other words, “[f]or a breach of contract claim, the breach complained

of must be something other than the discrimination complained of.” Keck v. Commercial Union

Ins. Co., 758 F. Supp. 1034, 1039 (M.D. Pa. 1991).

Pennsylvania law defines “good faith” as “honesty in fact and the observance of

reasonable commercial standards of fair dealing.” 13 Pa. Stat. and Cons. Stat. Ann. § 1201.

Pennsylvania courts have adopted the Restatement (Second) of Contracts formulation of the

general duty of good faith and fair dealing. See Somers v. Somers, 613 A.2d 1211, 1213 (Pa.

Super. Ct. 1992). A breach of an express or implied covenant of good faith in an employment

contract is brought as a breach of contract, rather than as an independent action for a breach of

the duty of good faith and fair dealing. Engstrom v. John Nuveen and Co., Inc., 668 F. Supp.

953, 958 (E.D. Pa. 1987). “The obligation to act in good faith in the performance of contractual

duties varies somewhat with the context,” but Pennsylvania courts have recognized “certain

strains of bad faith which include: evasion of the spirit of the bargain, lack of diligence and

slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and

interference with or failure to cooperate in the other party’s performance.” Somers, 613 A.2d at

1214.

Here, Plaintiff has alleged facts that may support his claim that Defendant breached its

duty of good faith and fair dealing, including that Defendant’s Chief Medical Officer harassed

and tried to intimidate Plaintiff to comply with the hospital system’s vaccine mandate. See

Compl., ¶¶ 35-37, 46-47, 54-56, 61-69. However, Plaintiff has also stated that this conduct

exemplifies and is evidence of Defendant’s discriminatory conduct. See, e.g., id., ¶ 70 (“Dr.

Levy’s conduct is a quintessential example of the threats, harassment, discrimination, and

retaliation which Title VII, the ADA, and the PHRA are meant to prevent and eliminate”); ¶ 132

(“Doylestown Health’s termination of Dr. Auteri’s employment is the culmination and direct

result of Doylestown Health’s concerted pattern of harassment, discrimination, and retaliation

against Dr. Auteri …”); ¶ 133 (“Doylestown Health’s subsequent conduct and policies after Dr.

Auteri’s termination [is] evidence that Doylestown Health’s invocation of patient safety” and

“undue burden” of testing as the basis for the Exemption Denial and Second Exemption Denial

was pretext for Doylestown Health’s discrimination, harassment, and retaliation against Dr.

Auteri on the basis of Dr. Auteri’s medical condition and religious beliefs.”). Accordingly,

Plaintiff has not pled facts to support his breach of contract claim that are distinct from the facts

alleged in support of his discrimination claims. As a result, Defendant’s Motion to Dismiss

Count III is granted without prejudice.

IV. CONCLUSION

For the following reasons, Defendant’s Motion to Dismiss Counts II (ADA

discrimination) and III of the Complaint is granted without prejudice. Defendant’s Motion to

Dismiss Count II (ADA retaliation) is denied. Plaintiff has requested leave to amend the

Complaint if Counts II and/or III are dismissed. We have no basis on which to conclude that an

amendment would be futile or inequitable. Accordingly, Plaintiff’s request to amend the

Complaint within twenty-one days of this Order is granted.

BY THE COURT:

/s/ R. Barclay Surrick

R. BARCLAY SURRICK, J.