# NOLAN v. TALENTBURST, INC.

> District Court, E.D. Pennsylvania · March 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10407025

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10407025. Public record. Not legal advice.