NOLAN v. TALENTBURST, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VERONICA NOLAN, CIVIL ACTION

Plaintiff,

v.

TALENTBURST, INC., NO. 22-4556

THE VANGUARD GROUP, INC.,

RANDSTAD USA, and

INFOSYS LIMITED,

Defendants.

MEMORANDUM

HODGE, J. March 29, 2024

Presently before the Court are four Motions to Dismiss filed by Defendant Infosys Limited

(“Infosys”) (ECF No. 14), Defendant The Vanguard Group, Inc. (“Vanguard”) (ECF No. 15),

Defendant Randstad (“Randstad”) (ECF No. 24), and Defendant TalentBurst, Inc. (“TalentBurst”)

(ECF No. 27). Each Motion to Dismiss was fully briefed and is ripe for review. For the reasons set

forth below, the Court grants Defendants Infosys and Randstad’s motions to dismiss and denies

Defendants Vanguard and TalentBurst’s motions to dismiss.

I. BACKGROUND1

Plaintiff is an adult individual, residing in Akron, Pennsylvania. (ECF No. 1 at 2 ¶ 2.)

Defendant Infosys is an “information technology company that provides consulting, information

technology and outsourcing services” with a corporate headquarters located in Plano, Texas. (Id.

¶ 6.) Defendant Vanguard “is an investment management company” with a location in Malvern,

Pennsylvania. (Id. ¶ 4.) Defendant Randstad “is a staffing company” with a headquarters located

1 The Court adopts the pagination supplied by the CM/ECF docketing system.

in Atlanta, Georgia. (Id. ¶ 5.) Defendant TalentBurst “is a provider of workforce management

solutions” with a corporate headquarters in Natick, Massachusetts. (Id. ¶ 3.)

On October 19, 2020, Defendants hired Plaintiff to work as a Retirement Planning

Specialist (“RPS-1”) with an open-ended contract that was a remote work contract expected to end

on April 19, 2021—but with the potential to extend the contract. (Id. at 4 ¶ 23, 5 ¶¶ 31–33.) Plaintiff

alleges that TalentBurst was her direct employer. (Id. at 5 ¶ 27.) Specifically, Plaintiff avers that

the reporting structure between Defendants was that “Plaintiff reported to Defendant TalentBurst,

Defendant TalentBurst reported to Defendant Randstad, and Defendant Randstad report[ed] to

Defendant Vanguard. At no point was Defendant TalentBurst supposed to communicate directly

with Defendant Vanguard.” (Id. ¶ 28–29.) Regarding Infosys, Plaintiff alleges that “Defendant

Infosys contracted Randstad to procure employees for Defendant Vanguard.” (Id. at 4 ¶ 26.)

Plaintiff pleads that she has the following disabilities: “permanent nerve damage, muscle

spasms, migraines, and a severe delayed T-Cell reaction that manifests itself in spontaneous

allergies, such as the ingredients in vaccines, including the COVID-19 vaccine.” (Id. ¶ 34.)

Plaintiff’s disabilities affect her major life activities such as “performing manual tasks,

concentrating, sleeping, working[,] . . . functions of the immune system,” and driving. (Id. ¶¶ 35,

37.) Plaintiff avers that Defendant TalentBurst was aware of her disabilities as it had ADA

paperwork from Plaintiff’s physician, and Plaintiff kept Defendant TalentBurst aware of all

pertinent updates from her physicians. (Id. ¶ 36.)

Plaintiff’s disabilities forced her to take a medical leave of absence in February 2021 to

treat and manage her disabilities. (Id. at 6 ¶ 38.) Plaintiff returned from her medical leave of

absence in May 2021. (Id. ¶ 39.) “Throughout Plaintiff’s leave, she maintained contact with

Heather Hammond, Defendant TalentBurst’s Director of Human Resources, North America.” (Id.

¶ 40.) Plaintiff attempted to return to work full-time in May 2021 but had not yet fully recovered.

(Id. ¶ 41.) Plaintiff then requested to work part-time as a temporary reasonable accommodation

while she continued to recover. (Id. ¶ 42.) This accommodation was denied, which ultimately

required Plaintiff to return to a medical leave of absence. (Id. ¶ 43.)

In the summer of 2021, which was beyond Plaintiff’s anticipated end date of her contract,

Plaintiff alleges that Defendants asked Plaintiff, while she remained on medical leave, if she would

be willing to work in Defendant Vanguard’s Malvern, PA office. (Id. ¶ 44.) Plaintiff refused this

request as her contract was for remote work, and her disabilities prevented her from being able to

drive and commute. (Id. ¶ 45.)

Plaintiff was cleared to return to work on November 8, 2021. (Id. at 7 ¶ 48.) When she

attempted to log onto her work laptop, Plaintiff found herself locked out. (Id. ¶ 49.) Plaintiff

contacted Defendant TalentBurst about the issue, and Defendant TalentBurst told Plaintiff she

needed a new background check due to the length of her medical leave of absence. (Id. ¶ 50.) On

December 16, 2021, Defendant TalentBurst informed Plaintiff she would need to drive to Malvern,

PA to swap her laptop in order to regain full access to the system required to perform her work.

(Id. ¶ 51.) Plaintiff informed Ms. Hamond she could not do so as her disabilities prevented her

from being able to drive. (Id. ¶ 52.)

Allegedly, in light of this inability to drive and Defendant Infosys’s policies related to

mandatory vaccination for COVID-19, TalentBurst informed Plaintiff that her contract would be

terminated on December 31, 2021. (Id. ¶ 53.) Infosys required all employees to be vaccinated

against COVID-19 without exception, a policy which also applied to Plaintiff by terms of her

contract. (Id.) Plaintiff’s disabilities prevented her from being able to be vaccinated for COVID-

19; a fact that Plaintiff alleges Defendants were aware of either actually or constructively, due to

Plaintiff’s communications with TalentBurst. (Id. ¶ 54.)

Plaintiff’s contract officially terminated on January 11, 2022. (Id. at 8 ¶ 57.) After

terminating her fully remote contract in January 2022, Plaintiff avers that “TalentBurst informed

Plaintiff that Defendant Vanguard would offer her a new contract if she agreed to a hybrid work

schedule, where she would be tested for COVID-19 frequently instead of getting vaccinated.” (Id.

¶ 55.) Plaintiff could not accept this contract offer as she was unable to commit to driving for her

commute. (Id. ¶ 56.)

Plaintiff first filed a Charge of Discrimination (“Charge”) with the Equal Employment

Opportunity Commission on February 17, 2022, alleging retaliation and disability-based

discrimination. (See ECF No. 22-2 at 2–3.) Plaintiff filed an Amended Charge of Discrimination

(“Amended Charge”) on May 11, 2022, alleging the same discrimination in her initial Charge and

adding Infosys and Randstad as additional respondents. (See id. at 5–6.) Plaintiff’s Charge and

Amended Charge were both dual-filed with the Pennsylvania Human Relations Commission. (See

id. at 2, 5.) Plaintiff filed her Complaint on November 14, 2022, alleging retaliation and disability-

based discrimination in violation of the Americans with Disabilities Act of 1990 (“ADA”) and the

Pennsylvania Human Relations Act (“PHRA”). Each Defendant filed a Motion to Dismiss (see

ECF Nos. 14–15, 24, 27), which were fully briefed and are ripe for review.

II. LEGAL STANDARD

In assessing whether Plaintiff has alleged claims upon which relief may be granted, the

Court applies the familiar standard applicable to Rule 12(b)(6) motions. A plaintiff’s complaint

must provide merely a “short and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Id. at 679. The complaint must do more than merely allege the

plaintiff’s entitlement to relief; it must “show such an entitlement with its facts.” Fowler v. UPMC

Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This standard “‘does not impose a probability

requirement at the pleading stage.’” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)

(quoting Twombly, 550 U.S. at 556). Instead, “[t]he complaint need only allege enough facts to

‘raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.’”

Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021) (quoting Fowler, 578 F.3d at

213).

III. DISCUSSION

Defendants move to dismiss Plaintiff’s ADA and PHRA claims. Defendant Infosys argues

that Plaintiff failed to exhaust her administrative remedies and does not allege an employment

relationship with Infosys. (See ECF No. 14-1 at 5.) Defendant Vanguard argues that Plaintiff does

not allege an employment relationship with it either. (See ECF No. 15-1 at 4.) Defendant Randstad

argues that (1) Plaintiff failed to timely file her Complaint, (2) she failed to exhaust her

administrative remedies, and (3) she does not allege an employment relationship with Randstad.

(See ECF No. 24-1 at 2.) Defendant TalentBurst argues that Plaintiff has not sufficiently alleged

claims for (1) disability-based discrimination, (2) failure to accommodate, or (3) retaliation. (See

ECF No. 27-1 at 2.) The Court addresses each of Defendants’ contentions below.

A. Plaintiff’s Complaint was timely filed.

Defendant Randstad argues that Plaintiff’s Complaint should “be dismissed with prejudice

as time barred” because she failed to timely file her Complaint “within the 90-day time period, and

instead [] filed one day late on November 14, 2022.” (ECF No. 24-1 at 5–6.) An individual alleging

violation of the ADA in a civil action must bring the civil action within 90 days of the dismissal

of the charge of discrimination by the EEOC. See Ebbert v. Daimlerchrysler Corp., 319 F.3d 103,

108 (3d Cir. 2003). Under Federal Rule of Civil Procedure 6, when the time for filing is stated in

days or a longer unit of time and the last day is a Saturday, Sunday, or legal holiday, the period

will continue to run until the end of the next day that is not a Saturday, Sunday or legal holiday.

See Fed. R. Civ. P. 6(a)(1)(C). The Third Circuit applies Rule 6 to the 90-day time period for filing

following dismissal of a charge from the EEOC. See, e.g., Lewis v. Postmaster Gen. of United

States, No. 21-2958, 2022 WL 109007, at *1, 1 n.3 (3d Cir. Jan. 12, 2022) (finding that as the 90-

day timeline in this case ended on Sunday, December 6, 2020, that the plaintiff had until Monday,

December 7, 2020 to file the complaint). In this matter, Plaintiff received her right to sue on or

about August 15, 2022; ninety days after August 15, 2022 was November 13, 2022, which was a

Sunday. Thus, under Rule 6, Plaintiff had until Monday, November 14, 2022, to file her complaint,

which she did. Therefore, the Court finds that Plaintiff’s Complaint was timely filed.

B. Plaintiff exhausted her administrative remedies.

Defendants Infosys and Randstad argue that they should be dismissed from the instant

action because Plaintiff failed to exhaust her administrative remedies relative to them. (ECF No.

14-1 at 8–9; ECF No. 24-1 at 6–8.) Specifically, Defendant Infosys argues that Plaintiff’s “Charge

of Discrimination lists only TalentBurst and Vanguard. . . . Infosys is not a named employer and

the mere mention of a party is not sufficient for notice that it later will be added as a co-defendant

in the action.” (ECF No. 14-1 at 9 (citing Cella v. Villanova Univ., No. 01-cv-7181, 2003 WL

329147, at *9 (E.D. Pa. Feb. 12, 2003), aff’d, 113 F. App’x 454 (3d Cir. 2004)).) Defendant

Randstad argues the same. (See ECF No. 24-1 at 7–8 (“Here as in Cella, supra ‘there is no evidence

that any attorney, any human resources representative, or any individual with the authority [from

Defendant Randstad] to appropriately direct the investigation of such a complaint was aware of

the charge’ prior to the instant filing.”).) Defendant Randstad further emphasizes that the

Dismissal, Notice of Rights, and Notice of Amended Charge of Discrimination were only sent to

attorneys for Defendants Infosys and Vanguard. (See id. at 8.) Defendant Randstad also argues

that Plaintiff’s PHRA claims against it have not been with the Pennsylvania Human Relations

Commission for one year.2

Plaintiff counters that Defendant Infosys was identified as an additional respondent in

Plaintiff’s Amended Charge, and as such, it was sufficiently named and Plaintiff exhausted her

administrative remedies as to Infosys. (ECF No. 22-1 at 8–9; ECF No. 22-2.) Plaintiff fails to

address Randstad’s argument in her response in opposition, but the Court recognizes that Plaintiff

also identified Randstad as an additional respondent in her Amended Charge in the same manner

as she did with Infosys. (See ECF No. 22-2 at 5.)

The Court finds that Plaintiff exhausted her administrative remedies as to Defendants

Infosys and Randstad. The case cited by Defendants Infosys and Randstad is inapposite to the facts

here. In Cella v. Villanova Univ., the plaintiff argued that “his claim against Aramark naturally

[grew] out of his initial charge and that he should be permitted to add Aramark as a respondent”

2 However, at this point, time has cured the defect and the one-year deadline has long since

passed. Therefore, Defendant Randstad’s exhaustion argument on these grounds is moot. See

Joseph v. Pepperidge Farm Inc., No. CV 22-4049, 2024 WL 921416, at *8 (E.D. Pa. Mar. 4, 2024)

(citing cases).

because he referenced Ms. Mosley, an Aramark employee, multiple times in his original

administrative complaint. No. CIV.A. 01-7181, 2003 WL 329147, at *8 (E.D. Pa. Feb. 12, 2003),

aff’d, 113 F. App’x 454 (3d Cir. 2004). The Cella Court found that the plaintiff could not add

Aramark as a defendant because the references to Ms. Mosley were insufficient to put Aramark on

notice that it was a respondent in the original administrative charge. See id. at *9. In this matter,

Plaintiff complied with the instructions on the Charge of Discrimination form. In the section to

identify the employer, labor organization, employment agency, etc. that the plaintiff believes

discriminated against them, the form specifically states, “If more than two, list under

PARTICULARS below.” (ECF No. 22-2.) Plaintiff identified “additional Respondent Randstad”

and “additional Respondent InfoSys Limited” in the PARTICULARS section as instructed on the

form, providing the required information such as the number of employees, phone number, and

address. (Id. at 5.) The Court finds this compliance was sufficient for Plaintiff to have exhausted

her administrative remedies.

C. Plaintiff sufficiently alleged an employment relationship with Vanguard but

not with Infosys or Randstad.

The ADA applies only to covered entities, i.e., employers, employment agencies, and labor

organizations. 42 U.S.C. §§ 12112(a), 12111(2). The statute defines an “employee” as “an

individual employed by an employer.” Id. § 12111(4). Therefore, courts in the Third Circuit have

held that the ADA does not cover independent contractors. See, e.g., Itiowe v. NBCUniversal Inc.,

No. 13-cv-04155, 2013 WL 5435487, at *3 (D.N.J. Sept. 27, 2013) (holding Title I of the ADA

“does not allow an independent contractor to bring a claim”), aff’d sub nom. Itiowe v. NBC

Universal Inc., 556 F. App’x 126 (3d Cir. 2014). The PHRA similarly prohibits employers from

discriminating against employees and certain types of independent contractors because of certain

protected classes. 43 P.S. § 954-55 (2010). Thus, to sustain her claims under the ADA or PHRA,

Plaintiff must allege the existence of an employment relationship between her and Defendants—

either as a direct employer or as a joint employer. See Washington v. ABM Janitorial Servs., No.

11-cv-6462, 2013 WL 6047494, at *4 (E.D. Pa. Nov. 15, 2013).

Defendants Infosys, Vanguard, and Randstad argue that Plaintiff cannot establish that they

were her direct or joint employer, and as such, they should be dismissed from this litigation. (ECF

No. 14-1 at 10–12; ECF No. 15-1 at 7–10; ECF No. 24-1 at 11.) Plaintiff clearly alleges that

“Defendant TalentBurst was Plaintiff’s direct employer” and that her “contract” was with

TalentBurst. (ECF No. 1 at 5 ¶ 27.) Therefore, the Court will focus its analysis on whether Plaintiff

has sufficiently alleged that Defendants Infosys, Vanguard, and/or Randstad are joint employers

with Defendant TalentBurst.

Each party relies on Covington v. Int’l Ass’n of Approved Basketball Offs. to support their

position, so the Court will examine this case in depth. 710 F.3d 114 (3d Cir. 2013). In Covington,

the plaintiff, a female basketball referee excluded from refereeing boys’ high school varsity games,

named several parties as the defendants, alleging that the Hamilton Township School District

(“Hamilton”), the Colonial Valley Conference (“CVC”), and the New Jersey State Interscholastic

Athletic Association (“NJSIAA”) were “liable under Title VII as her employers;” “Board 193

[was] liable as an employment agency;” NJSIAA and the International Association of Approved

Basketball Officials (“IAABO”) were “vicariously liable as Board 193’s principals;” and CVC

was “vicariously liable as Hamilton’s principal.” Id. at 117. The district court held “that Covington

had not adequately alleged facts sufficient to establish an employer-employee or other relationship

necessary to hold defendants liable under Title VII,” and further declined supplemental jurisdiction

over the state law claims. Id. When analyzing whether Covington alleged an employment

relationship with the defendants under Title VII, the Third Circuit focused on “the level of control

the defendant[s] . . . exerted over the plaintiff: which entity paid [the employees’] salaries, hired

and fired them, and had control over their daily employment activities.” Id. at 119 (internal

citations omitted). The Third Circuit concluded that Covington had alleged sufficient facts to

survive a motion to dismiss regarding whether Hamilton and NJSIAA were “employers” because

both entities paid her, assigned the time and locations of basketball games, and assigned the

referees to the games. See id. at 119. In contrast, the Third Circuit affirmed the dismissal of the

complaint against the other defendants where the plaintiff failed to allege a similar employment

relationship. See id. at 119–20 (“CVC does not pay officials and does not contribute to their

training or evaluation.”). “In summary, Covington [] plausibly alleged an employment relationship

with Hamilton for regular season games, with NJSIAA for post-season games, and with Board 193

as an employment agency.” Id. However, regarding the plaintiff’s vicarious liability claims, the

Third Circuit held that the plaintiff did not allege sufficient facts to support that IAABO was a

principal of Board 193, CVC was a principal over Hamilton, nor that NJSIAA was vicariously

liable for Board 193’s actions. See id. at 120.

Overall, in the Third Circuit, independent entities will be considered joint employers where

“both employers exert significant control over the same employees with evidence demonstrating

that they share or co-determine those matters governing essential terms and conditions of

employment.” Abdallah v. Allegheny Valley Sch., No. 10-cv-5054, 2011 WL 344079, at *3 (E.D.

Pa. Feb. 1, 2011) (citing N.L.R.B. v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1124 (3d

Cir. 1982)). When determining whether an entity exercises significant control with another

employer, district courts in the Third Circuit have assessed the following factors: “(1) the entity’s

authority to hire and fire employees, promulgate work rules and assignments, and set conditions

of employment, including compensation, benefits, and hours; (2) its day-to-day supervision of

employees, including employee discipline; and (3) its control of employee records, including

payroll, insurance, taxes and the like.” Plaso v. IJKG, LLC, 553 F. App’x 199, 204–05 (3d Cir.

2014). “However, ‘[s]ince the common-law test contains no shorthand formula or magic phrase

that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed

and weighed with no one factor being decisive.’” Faush v. Tuesday Morning, Inc., 808 F.3d 208,

214 (3d Cir. 2015) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 324 (1992)).

The Court will now assess each defendant individually. Specific to Vanguard, Plaintiff

alleges in her Complaint that (1) “Vanguard contracted employees through Defendant Randstad,”

(ECF No. 1 at 4 ¶ 24); (2) “Vanguard [worked] with Defendant Infosys to make policies and

procedures that Plaintiff was subjected to,” (Id. ¶ 25; see also id. at 5 ¶ 30); (3) Plaintiff was asked

to “work in [] Vanguard’s office in Malvern, PA,” (Id. at 6 ¶ 44); and (4) Vanguard would have

offered Plaintiff a new contract if she agreed to a hybrid work schedule, where she would be tested

for COVID-19 frequently instead of getting vaccinated.” (Id. at 8 ¶ 55.) Plaintiff further alleges

that the computer she worked on belonged to Vanguard, and Vanguard could restrict or grant

access to the computer. Plaintiff worked as a Retirement Planning Specialist, and Vanguard is an

investment management company. (See id. at 2 ¶ 4, 4 ¶ 23.) As such, the Court accepts Plaintiff’s

argument that “[i]t can be inferred from the Complaint that Plaintiff did not have the right to choose

assignments to work on. . . . Defendant Vanguard controlled the manner and means by which the

product was accomplished.” (ECF No. 23-1 at 10.) Based on these allegations, it appears that

Vanguard had a role in the hiring and firing of Plaintiff because Vanguard had the ability to offer

Plaintiff a new contract. Further, it appears that Vanguard controlled the location of where Plaintiff

worked, whether that was fully remote, hybrid, and in which office. Also, the Court finds it

plausible that Vanguard controlled her daily employment activities like her work assignments.

Plaintiff does not include any allegations regarding whether Vanguard paid her salary, but no one

factor is decisive in the test applied by the courts. As such, the Court holds that Vanguard may

fairly be identified as Plaintiff’s employer, and the Court denies Vanguard’s motion to dismiss.

Specific to Infosys, Plaintiff alleges in her Complaint that (1) Infosys worked with

Defendant Vanguard “to make policies and procedures that Plaintiff was subjected to,” (ECF No.

1 at 4 ¶ 25); (2) “Infosys contracted with Randstad to procure employees for [] Vanguard,” (Id. ¶

26); and (3) it was Infosys’s policy that “requir[ed] all employees to be vaccinated against COVID-

19, with no exceptions.” (Id. at 7 ¶ 53.) In her response in opposition, Plaintiff further alleges that

“Infosys controlled the manner and means by which she performed the work by allowing and

restricting access to Defendant Vanguard’s network” and “access to the computer Plaintiff used

was restricted or granted by Defendant Infosys.” (ECF No. 22-1 at 12.) Accepting all allegations

as true, even the allegations that Plaintiff asserts in her response in opposition, the Court agrees

with Infosys that “Plaintiff’s allegations are woefully inadequate to suggest that Infosys was

exhibiting significant control over the essential terms and conditions of her employment. Because

Plaintiff does not allege that Infosys jointly employed her (which in good faith she could not do),

Plaintiff cannot sustain her alleged violations of the ADA and PHRA.” (ECF No. 14-1 at 12.)

Therefore, the Court grants Infosys’s motion to dismiss.

Specific to Randstad, Plaintiff alleges in her Complaint that (1) “Defendant Infosys

contracted Randstad to procure employees for Defendant Vanguard,” (ECF No. 1 at 4 ¶ 26); (2)

Defendant Randstad “contracted Defendant TalentBurst to hire employees,” (Id. at 5 ¶ 27); (3)

“Plaintiff reported to Defendant TalentBurst, Defendant TalentBurst reported to Defendant

Randstad, and Defendant Randstad reports to Defendant Vanguard,” (Id. ¶ 28); and (4) “Defendant

Vanguard sets the policies that Plaintiff adhered to, and Defendant Randstad and Defendant

TalentBurst were responsible for enforcing them.” (Id. ¶ 30.) In her response in opposition to

Randstad’s motion, Plaintiff emphasizes a potential agency relationship only. (See ECF No. 31-1

at 10–13.) As such, the Court agrees that “Randstad (1) is not alleged to have hired Plaintiff; (2)

is not alleged to have fired Plaintiff; (3) is not alleged to promulgate work rules and assignments;

and (4) is not alleged set conditions of employment, including compensation, benefits, and hours.”

(ECF No. 33 at 6.) Therefore, the Court grants Randstad’s motion to dismiss.

Plaintiff further argues Defendants share liability for alleged discrimination under an

agency relationship theory. Specifically, Plaintiff alleges that “[i]t may be inferred from the

Complaint that Defendants Infosys, Randstad, and TalentBurst all acted as agents for the entity

above to procure employees for Defendant Vanguard with authority given to them by Defendant

Vanguard to hire and fire employees.” (ECF No. 22-1 at 11; ECF No. 23-1 at 7, 9 (“In this case,

Defendant Vanguard served as the principal with Defendants Infosys, Randstad, and TalentBurst

serving as its agents.”); ECF No. 31-1 at 12.) The Court agrees with Defendants Infosys, Vanguard,

Randstad that Plaintiff has not sufficiently alleged a vicarious liability theory. In Covington, the

plaintiff specifically raised a vicarious liability theory as to multiple defendants in her amended

complaint. Covington v. International Association of Approved Basketball Officials Board 193 et

al, No. 3:08-cv-03639, ECF No. 103 (D.N.J. Sept. 25, 2010). The distinction between vicarious

liability through an agency relationship and liability as a joint employer is more than a semantic

difference. They are separate legal theories that Plaintiff must allege in her Complaint, and she has

not done so. As such, the Court finds that Plaintiff has not alleged that Infosys, Vanguard, and/or

Randstad are vicariously liable for Defendant TalentBurst’s actions.

At this time, the Court denies Plaintiff’s request for leave to file an amended complaint.

This matter involves complicated contractual relationships. The Third Circuit has long established

that fact discovery is needed to prove the existence of a joint-employer relationship. Graves v.

Lowery, 117 F.3d 723, 729 (3d Cir. 1997) (“[T]he precise contours of an employment relationship

can only be established by a careful factual inquiry.”). Currently, Plaintiff has failed to sufficiently

allege claims against Infosys and Randstad. As such, the Court will dismiss Infosys and Randstad

without prejudice. However, if discovery reveals information that Infosys and Randstad may be

liable as joint employers or vicariously liable through an agency relationship, then Plaintiff may

seek leave from the Court to file an amended complaint to re-assert Infosys and/or Randstad as

defendants.

D. Plaintiff has sufficiently alleged ADA and PHRA claims.

Defendant TalentBurst argues that Plaintiff’s ADA and PHRA claims3 fail on three

grounds: (1) there is no reasonable inference of disability-based discrimination because there are

insufficient facts alleged to show a plausible causal connection between Plaintiff’s alleged

disability and an adverse employment action, (2) there is no failure to accommodate claim because

TalentBurst engaged in an interactive process with Plaintiff, and (3) there is no inference of

retaliation because there are insufficient facts to suggest that TalentBurst subjected Plaintiff to any

adverse employment action as a result of an alleged disability. The Court addresses each of the

TalentBurst’s assertions below.

1. Disability Discrimination Claim

To plead a prima facie case of disability discrimination under the ADA, Plaintiff must show

that she is “(1) disabled within the meaning of the ADA, (2) can perform the essential functions

3 Courts construe the provisions contained under the PHRA consistent with its federal

counterparts. See Smith v. Comhar, Inc., No. 15-4913, 2017 U.S. Dist. LEXIS 33645, at *18 (E.D.

Pa. 2017); Kroptavich v. Pa. Power & Light Co., 795 A.2d 1048, 1054 (Pa. Super. Ct. 2002). See

also Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (analyzing the PHRA in conjunction

with its federal counterparts).

of [her] job with or without reasonable accommodation, and (3) suffered an adverse employment

action as a result of discrimination based on [her] disability.” Feliciano v. Coca-Cola Refreshments

USA, Inc., 281 F. Supp. 3d 585, 592 (E.D. Pa. 2017) (citing Shaner v. Synthes, 204 F.3d 494, 500

(3d Cir. 2000); Gaul v. Lucent Techs. Inc., 134 F.3d 576, 580 (3d Cir. 1998)). TalentBurst only

disputes whether Plaintiff has established the third element. This element requires a “causal nexus

between [the] disability” and the adverse employment action. See Drummer v. Trustees of

University of Pennsylvania, 286 F. Supp. 3d 674, 683 (E.D. Pa. 2017). “Even post-Twombly, it has

been noted that a plaintiff is not required to establish the elements of a prima facie case but instead,

need only put forth allegations that ‘raise a reasonable expectation that discovery will reveal

evidence of the necessary element.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.

2009) (quoting Graff v. Subbiah Cardiology Associates, Ltd., No. 08-207, 2008 WL 2312671, at

*4 (W.D. Pa. June 4, 2008)).

TalentBurst zeroes in on Plaintiff’s allegation that she “could not comply with Infosys’s

vaccination policy to vaccinate its employees against COVID-19.” (ECF No. 27-1 at 6 (citing ECF

No. 1 at 4, 7 ¶¶ 23, 53–54).) Defendant argues that because “Plaintiff was offered an alternative

accommodation to the vaccine requirement [this] belies the notion that Plaintiff’s disability was a

determinative factor in any decision to terminate.” (Id.) However, TalentBurst ignores that another

facet of Plaintiff’s alleged disability is that she “is unable to reliably operate a car due to the

medications that she takes to manage[] her disabilities.” (ECF No. 1 at 5 ¶ 37.) Plaintiff alleges

that the only accommodation that TalentBurst offered to her involved a hybrid work schedule and

frequent COVID-19 testing instead of vaccination, requiring a commute to Vanguard’s Malvern

office. When Plaintiff could not accept the offer because of her disability and inability to drive,

she avers that her contract with Defendants TalentBurst and Vanguard officially terminated. As

such, Plaintiff has sufficiently alleged a causal connection between her termination and her

disability.

2. Failure to Accommodate Claim

The elements of a discrimination claim and failure to accommodate claim are similar. “To

state a failure to accommodate claim under the ADA, a plaintiff must allege: ‘(1) [s]he is a disabled

person within the meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential

functions of the job, with or without reasonable accommodations by the employer; and (3) [s]he

has suffered an otherwise adverse employment decision as a result of discrimination . . . [which]

in this context include[s] refusing to make reasonable accommodations for a plaintiff’s

disabilities.’” Lucas v. City of Philadelphia, No. 11-4376, 2013 WL 2156007, at *25 (E.D. Pa.

May 17, 2013) (quoting Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 191 (3d Cir. 2009)).

TalentBurst only disputes whether Plaintiff has established the third element. This element “can

be satisfied by a showing either that the employer (1) refused to provide a proposed reasonable

accommodation, or (2) failed to engage in an interactive process after a request for accommodation

was made, though a reasonable accommodation was possible.” Id. at *26 (citing Solomon v. Sch.

Dist. Of Phila., 882 F. Supp. 2d 766, 779 (E.D. Pa. 2012)). In addition, to succeed on a failure to

accommodate claim, an “employee must ‘make clear that the employee wants assistance for his or

her disability.’” Bowman v. St. Luke’s Quakertown Hosp., No. 12-797, 2012 WL 6527402, at *4

(E.D. Pa. Dec. 13, 2012) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir.

1999)).

Plaintiff has sufficiently alleged a failure to accommodate claim. First, Plaintiff sufficiently

alleged that TalentBurst refused to provide a reasonable accommodation. Plaintiff claims that

TalentBurst only offered one accommodation, which would have required Plaintiff to work a

hybrid schedule; even though, Plaintiff alleges that TalentBurst was on notice that she could not

drive. TalentBurst erroneously argues that “there are no allegations to suggest that Plaintiff sought

an accommodation due [to] her alleged inability to drive.” (ECF No. 27-1 at 9.) However, Plaintiff

asserts that she sought to remain fully remote. Further, she alleges that she informed TalentBurst

that she could not get to Malvern, PA to pick up a new laptop because she could not drive, meaning

Plaintiff has alleged that TalentBurst reasonably knew that Plaintiff needed an accommodation for

traveling, yet it did not offer any. Second, Plaintiff alleges that TalentBurst did not engage in an

interactive process. Plaintiff contends that TalentBurst made one offer of a hybrid schedule and an

alternative to being vaccinated for COVID-19. This allegation demonstrates an interactive process

on Plaintiff’s inability to be vaccinated. However, as pled, there are arguably no facts put forth

that evidences TalentBurst engaging in an interactive process regarding Plaintiff’s need for an

accommodation to the hybrid work schedule. Instead of engaging in an interactive process,

Plaintiff alleges that TalentBurst terminated her contract and/or Vanguard did not offer a new

contract. Thus, the Court finds that Plaintiff has plausibly alleged a failure to accommodate claim.

3. Retaliation Claim

“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 . . . protected activity; and (3) a causal connection between the . . . protected activity and

the . . . adverse action.” Tielle v. Nutrition Grp., 810 F. App’x 160, 162 (3d Cir. 2020) (quoting

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)). At the prima facie stage, a plaintiff

need only raise the inference that the protected activity was the likely reason for the adverse action.

See Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 259 (3d Cir. 2017) (quoting Kachmar v.

SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)). In its motion, TalentBurst argues that

Plaintiff failed to sufficiently allege retaliation claims because “Plaintiff has neither alleged

sufficient facts to plausibly suggest that she engaged in protected activity related to a claimed

disability nor that there is a causal connection between the alleged protected activity and the

termination.” (ECF No. 27-1 at 10.)

The Third Circuit has held that “requesting an accommodation in good faith is a protected

activity.” Keiffer v. CPR Restoration & Cleaning Servs., LLC, 733 Fed. Appx. 632, 638 n.26 (3d

Cir. 2018) (citing Shellenberger v. Summit Bancorp, 318 F.3d 183, 191 (3d Cir. 2003)). As the

Court has elaborated on above, Plaintiff sufficiently alleges that she requested an accommodation

in good faith. In further support of its argument, TalentBurst contends that “Plaintiff fails to

plausibly establish an inference of retaliation because there are insufficient facts pled to suggest

that TalentBurst subjected Plaintiff to any adverse employment action as a result of an alleged

disability.” (ECF No. 27-1 at 10.) Again, the Court held above that Plaintiff sufficiently pled a

causal nexus between her termination and her disability.

TalentBurst argues that Plaintiff fails to “show a causal connection between her requested

accommodation and her termination.” (ECF No. 27-1 at 11.) The Third Circuit has articulated

three options to establish the requisite causal connection a plaintiff usually must prove either (1)

an unusually suggestive temporal proximity between the protected activity and the allegedly

retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. In

the absence of that proof, and as a third option, the plaintiff must show that from the evidence

gleaned from the record as a whole the trier of the fact should infer causation. Cooper v. Menges,

541 Fed. Appx. 228, 232 (3d Cir. 2013) (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d

259, 267 (3d Cir. 2007)).

Plaintiff has sufficiently alleged the requisite causal connection. Plaintiff avers that she was

offered a new contract in January 2022, involving a hybrid work schedule and frequent COVID-

19 testing instead of vaccination. Plaintiff has alleged that TalentBurst reasonably knew that

Plaintiff needed an accommodation for commuting to work, yet it did not offer any. Instead,

Plaintiff’s contract officially terminated on January 11, 2022. These allegations are sufficient to

demonstrate an unusually suggestive temporal proximity between the protected activity and the

allegedly retaliatory action. Therefore, the Court finds that Plaintiff has plausibly alleged a

retaliation claim.

IV. CONCLUSION

For the foregoing reasons, the Court grants Defendants Infosys and Randstad’s motions to

dismiss. Infosys and Randstad are dismissed from this action without prejudice. The Court denies

Defendants Vanguard and TalentBurst’s motions to dismiss. At this time, Plaintiff’s request for

leave to amend her Complaint is denied. An appropriate order follows.

BY THE COURT:

/s/ Hon. Kelley B. Hodge

HODGE, KELLEY B., J.