Allen v. Lackawanna County Board of Commissioners

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JO ANN ALLEN, :

Plaintiff,

V. 3:18-CV-209

(JUDGE MARIANI)

LACKAWANNA COUNTY BOARD OF : (Magistrate Judge Mehalchick)

COMMISSIONERS, et al., :

Defendants.

MEMORANDUM OPINION

|. INTRODUCTION AND PROCEDURAL HISTORY

Presently before the Court is a Report and Recommendation (“R&R”) (Doc. 46) by

Magistrate Judge Karoline Mehalchick in which she recommends that Defendants’ Motion to

Dismiss (Doc. 36) be granted in part and denied in part (Doc. 46 at 42). The operative

complaint was filed on January 31, 2019, and is titled “Magistrate Judge Ordered, Amended

Complaint.” (Doc. 35.) In a Memorandum Opinion issued on March 14, 2019, the Court

stated that “[t]he record in this case is muddled” (Doc. 42 at 2), an assessment in large part

based on the pro se Plaintiffs numerous unorthodox filings (id. at 2-6). In the process of

clarifying the record, the Court accepted the January 31, 2019, filing (Doc. 35) as Plaintiff's

“Second Amended Complaint.” (Doc. 42 at 8.)

In the R&R under consideration, Magistrate Judge Mehalchick recommends that

Defendants’ motion be granted as to the following claims:

a. Plaintiff's Disability Discrimination Claim brought under the ADA;

b. Plaintiff's private causes of action brought under 42 U.S.C. 1983; 42 U.S.C.

1981(a); 42 U.S.C. 12101-12213 and 12203; 43 PS 951-963; 29 U.S.C. 2601,

et seq.; 29 U.S.C. 623(d); 28 C.F.R. 28, 35, 130-140; 43 28 C.F.R. 42.510-

42.512: 29 CFR Labor 1630-1630.9; and Title 42, Pa Tort Claims Act, 8545;

c. Plaintiff's Retaliation Claim brought under the FMLA;

d. Plaintiff's Fourteenth Amendment Due Process Claim in connection with her

March 11, 2015 suspension, her July 18, 2016 functional demotion and July

22, 2018 written warning; and

e. Plaintiff's state law claims for fraud and, to the extent such a claim may be

liberally construed, intentional infliction of emotional distress.

(Doc. 46 at 42-43.) She recommends that the motion be denied as to the following claims:

a. Plaintiff's Retaliation Claim under the ADA;

b. Plaintiff's Hostile Work Environment Claim under the ADA;

c. Plaintiff's Failure to Accommodate Claim under the ADA; and

d. Plaintiffs Fourteenth Amendment Due Process Claims brought against

Lackawanna County in connection with her October 19, 2016, and November 1,

2016 Pre-Termination Notices.

(Doc. 46 at 43.) The Magistrate Judge also recommends that further leave to amend be

denied and the matter be remanded to her for further proceedings. (/d.)

Plaintiff filed objections to the R&R on September 4, 2019. (Doc. 47.) Defendants

did not file objections to the R&R and the time for doing so has passed. Nor did Defendants

file a response to Plaintiff's objections and the last day for doing so has also passed.

Therefore, this matter is ripe for disposition

A District Court may “designate a magistrate judge to conduct hearings, including

evidentiary hearings, and to submit to a judge of the court proposed findings of fact and

recommendations for the disposition” of certain matters pending before the Court. 28

U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate

Judge's Report and Recommendation, the District Court “shall make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” Id. at § 636(b)(1)(C); see also Fed. R. Civ.

P. 72(b)(3); M.D. Pa. Local Rule 72.3; Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 201 1).

“If a party does not object timely to a magistrate judge's report and recommendation, the

party may lose its right to de novo review by the district court.” EEOC v. City of Long

Branch, 866 F.3d 93, 99-100 (3d Cir. 2017). However, “because a district court must take

some action for a report and recommendation to become a final order and because the

authority and the responsibility to make an informed, final determination remains with the

judge, even absent objections to the report and recommendation, a district court should

afford some level of review to dispositive legal issues raised by the report.” /d. at 100

(internal citations and quotation marks omitted).

Having conducted the required de novo review, the Court agrees with the R&R's

conclusion that Defendants’ Motion to Dismiss (Doc. 36) should be granted in part and

denied in part. However, because the Court does not reach the same conclusions on the

dismissal of certain claims, the Court will adopt the R&R as modified.

Il. ANALYSIS

Plaintiff objects to the R&R’s recommendation regarding the following claims: 1) ADA

discrimination claim; 2) Fourteenth Amendment Due Process claim based on functional

demotion; 3) FMLA retaliation and discrimination claims; 4) state law fraud and intentional

infliction of emotional distress claims; 5) claims brought under “29 CFR Labor 1630-1630.9",

and 6) official immunity defense under ‘Title 42, Pa Tort Claims Act, 8545.” (Doc. 47 at 13.)

Plaintiff also objects to the recommendation that further leave to amend not be granted.

(Doc. 47 at 13.) In addition to objecting to the recommended disposition of specific claims,

Plaintiff points to errors contained in the Magistrate Judge’s statement of the background

and procedural history of the case. (Doc. 47 at 2-4.) The Court will address each of

Plaintiffs specific objections to the recommended disposition of claims contained in her

Second Amended Complaint (Doc. 35) and wil consider alleged factual and procedural

errors as they may be relevant to the analysis of the claim at issue.

A. ADA Discrimination Claim

Magistrate Judge Mehalchick summarized Plaintiffs ADA discrimination claim as

follows:

Allen generally alleges that Lackawanna County’s reasons for terminating her

were “illogical, irrational, incredible, unjust, and factually . . . pretext for

prohibited employment discrimination and retaliation . . .” (Doc. 35, at 10). She

then cites to the respective reasons Lackawanna County provided for

terminating her, claiming as follows: that any willful misconduct related to her

access of the employer's network, in violation of their policies, is “absurd”; that

her insubordination for not following the employer’s network access policy was

discriminatory, because Browning only sent the policy to her and thus did not

“uniformly appl[y] [the directive] to all employees”; that the falsification of

documentation charge is based on Lackawanna County's misinterpretation of

a certain journal entry; and that her criminal misuse of county property “is not

plausible as a criminal misdemeanor, let alone as [] employee misuse.” (Doc.

35, at 10-11).

(Doc. 46 at 21-22.) Magistrate Judge Mehalchick then concluded that “[e]ven when taken

as true, however, Allen’s conclusory allegations fail to state a plausible ADA discrimination

claim. Simply stated, Allen does not sufficiently plead that her termination was motivated by

the Lackawanna County's discriminatory animus towards her alleged disability.” (Id. at 22.)

In her objection to this finding, Plaintiff states that the alleged disability arises from

her “unjustified, less-favorable treatment by LC, et al., due to her mental and physical

disabilities.” (Doc. 47 at 6.) She cites several examples of what she considers less

favorable treatment based on her disabilities, including the following: removal of job

responsibilities on July 28, 2016; replacement following her functional demotion with a

younger, less experienced, non-disabled individual; segregation and isolation in her work

station change; and “illicit” suspension, functional demotion, and immediate termination.

(Doc. 47 at 6.)

Although Plaintiff's cited examples are not found in Count Six of her Second

Amended Complaint, many related averments are contained elsewhere in the document.

Her allegations of decreased job duties and replacement by a younger, less experienced,

non-disabled person are found in her allegations related to Count Three titled “FMLA,

Disparate Treatment and Retaliation.” (Doc. 35 at 5, Count Three {| d.) Allegations of

improper demotion, suspension, and termination are also found in the Second Amended

Complaint. (See Doc. 35 at 3-10.)

With their motion to dismiss, Defendants did not construe Count Six of Plaintiff's

Second Amended Complaint to state a claim for disability discrimination. (Doc. 39 at 21.)

Rather, they considered Count Six as a Fourteenth Amendment Due Process claim and

analyzed it as such. (/d. at 21-22.)

The Magistrate Judge properly construed the cause of action in Count Six to claim

disability discrimination under the ADA. (Doc. 46 at 21.) However, the Magistrate Judge

considered only the allegations made under the “Employer Discrimination and Deception”

heading of Count Six rather than reading the Second Amended Complaint as a whole and

liberally construing allegations made therein.

As the Court of Appeals for the Third Circuit has advised “review of the sufficiency of

[a plaintiff's] pro se complaint, ‘however inartfully pleaded,’ is less stringent than that of

pleadings prepared by lawyers.” Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981)

(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972). Further, the pro se filing is to be read

as a whole and interpreted in the light most favorable to the plaintiff. Harrison v. Local 54 of

Am. Federation of State, County and Municipal Emp., AFL-CIO, 518 F.2d 1276, 1283 (3d

Cir. 1975) (citing Haines, 404 U.S. 519).

Reading the Second Amended Complaint as a whole and reading it most favorably

to Plaintiff who is proceeding pro se, the Court concludes that the allegations contained

therein raise a plausible claim for discrimination under the ADA. Importantly, Defendants do

not specifically argue otherwise in their consideration of Count Six in their brief supporting

their motion. (See Doc. 39 at 21-22.) Further, Defendants identify a disability

discrimination claim in connection with failure to accommodate (id. at 9) and assert that the

failure to accommodate claim fails for the same reason as the ADA retaliatory discharge

claim fails (id, at 21). Insofar as the Magistrate Judge found that Defendants’ motion should

be denied as to the retaliatory discharge and accommodation claims (Doc. 46 at 15, 20, 43),

Defendants’ basis for denying an ADA disability discrimination claim is undermined.

Therefore, Defendants have not provided an adequate rationale for dismissing Plaintiffs

claim for discrimination under the ADA and this claim should go forward.

B. FMLA Retaliation Claim

The Magistrate Judge found that Plaintiff did not sufficiently allege a tangible,

adverse employment action which is required to show FMLA retaliation as claimed in Count

Three of the Second Amended Complaint. (Doc. 46 at 25-26.) The R&R states that

“Defendants argue that Allen’s retaliation claim fails because a functional demotion does not

constitute an adverse employment action under the FMLA.” (Doc. 46 at 24 (citing Doc. 39

at 17).) The Magistrate Judge agrees with this assessment:

Allen asserts that she engaged in the protected activity of taking FMLA medical

leave, from which she returned on May 5, 2015. (Doc. 35, at 5). Browning then

functionally demoted her from her “Civil Service responsibilities,” despite

allowing another employee to retain her same position upon similarly returning

from medical leave. (Doc. 35, at 5). However, beyond Allen’s vague allegation

that Browning “adversely removed all of her state job responsibilities,” she does

not discuss what specific duties were eliminated, or whether an elimination of

these responsibilities seriously affected the terms, conditions, or privileges of

her employment. Thus, Allen does not sufficiently allege a tangible, adverse

employment action that resulted from her alleged functional demotion. See

Langley, 186 F. App’x at 260; cf. Jakomas v. City of Pitt., 342 F. Supp. 3d 632,

645 (W.D. Pa. 2018) (finding employee suffered adverse employment action

when employer assigned her menial tasks that were outside of her job

description, such as organizing and cleaning offices, and lost many “residual

supervisory responsibilities and authorities’).

(Doc. 46 at 25-26.) Based on this analysis, the Magistrate Judge recommends that

Defendants’ motion to dismiss Plaintiffs FMLA retaliation claim be granted. (/d. at 26.)

Plaintiff objects to the Magistrate Judge’s recommendation, asserting that she

suffered an adverse employment action with the removal of here state civil service, ACM2

job duties and responsibilities. (Doc. 47 at 8.)

While the Magistrate Judge notes that Plaintiff did “not discuss what specific duties

were eliminated, or whether an elimination of these responsibilities seriously affected the

terms, conditions, or privileges of her employment” (Doc. 46 at 25), Defendants

acknowledged in their supporting brief that Plaintiff alleged in her Second Amended

Complaint that “she was ‘forced out of her work-station’ and that her consumer case load

was reassigned,” (Doc. 39 at 16 (citing Doc. 35 “at Count Ill, generally’).) In addressing the

adverse action requirement of the retaliation claim, Defendants recognized that Plaintiff

alleged in her Second Amended Complaint that “she was denied the return to ‘ACM2

function.” (Doc. 39 at 17 (citing Doc. 35 at 6 {h).) Defendants then cite caselaw on the

issue of what constitutes an adverse action:

A plaintiff claiming retaliation must show that a reasonable employee would

have found the alleged retaliatory action so materially adverse that it might

deter a reasonable worker from exercising a protected right under the FMLA.

See Moore v. City of Phila., 461 F.3d 331, 341 (3d Cir. 2006). A purely lateral

transfer that does not involve a demotion in form or substance, cannot rise to

the level of a materially adverse employment action. See Glenn v. Horgan

Bros., 2005 WL 1503428, *6 (E.D. Pa. June 24, 2005). A transfer involving no

reduction in pay and no more than a minor change in working conditions does

not qualify as materially adverse. /d.; see also Hair v. Fayette Cty. of

Pennsylvania, 265 F. Supp. 3d 544, 568 (W.D. Pa. 2017)(holding that a lateral

transfer is not a materially adverse employment action.)

(Doc. 39 at 17.) Defendants follow with the statement that “Plaintiffs complaint does not

allege that she suffered any reduction in pay or that her position was changed from that of

AMC2 [sic] staff member.” (/d. (citing Doc. 35 at Count Ill, generally).). On this basis they

conclude that “[ajny alleged change to Plaintiffs employment was not materially adverse, as

such, Plaintiff has failed to state a claim for retaliation under the FMLA.” (/d. at 17-18 (citing

Hair, 265 F. Supp. 3d at 568).)

The Court finds Defendants’ conclusory assertions problematic and inadequate.

First, the juxtaposition of Defendants’ recognition that Plaintiff pled she was not “return[ed]

to ACM2 function” with the statement that Plaintiff “does not allege that . . . her position was

changed from that of AMC2 [sic] staff member’ shows that Defendants recognized that

Plaintiff alleged a change in job duties but, because she did not allege she did not have the

same title or reduced pay, she failed to state a retaliation claim. With this conclusion,

Defendants did not review or assess the changes in job duties identified by Plaintiff.

Second, the authority cited by Defendants does not support the proposition that a

plaintiff who retains the same title and pay cannot satisfy the adverse action requirement of

a retaliation claim. Rather, the relevant authority indicates that the requirement could be

satisfied where a change in the employment relationship did not result in a loss of pay or

different job title but the employee experienced “more than a minor change in working

conditions,” Glenn, 2005 WL 1503428, *6, i.e, a “demotion in... substance,” id. Notably,

Hair, upon which Defendants relied (Doc. 39 at 18), cited O'Neal v. Brownlee, 2004 WL

2827052, at *6 (E.D. Pa. Dec. 9, 2004), where the court acknowledged that “a purely lateral

transfer, which does not involve a change in pay or a demotion in any other form, does not

constitute an adverse action,” but “in certain circumstances a transfer or reassignment may

be a materially adverse action.” 265 F. Supp. 3d at 568. Similarly, authority cited in the

R&R also stands for the proposition that a change in job duties including a loss of

supervisory responsibilities and authority may constitute an adverse employment action.

(Doc. 46 at 26 (citing Jakomas, 342 F. Supp. 3d at 645).) Of further note is the fact that

Jakomas, Hair, and O'Neal, were all decided at the summary judgment stage where details

regarding the allegedly adverse actions had been developed in the record, 342 F. Supp. 3d

at 639; 265 F. Supp. 3d at 550; 2004 WL 2827052, at *1, and such development has not

occurred here.

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Viewed within the proper legal framework and placing the burden on Defendants at

this stage of the proceedings to show that Plaintiff has not stated a plausible claim for relief,

see, e.g., Gould Electronics v. United States, 220 F.3d 169, 178 (3d Cir. 2000), the Court

concludes Defendants have not satisfied their burden because they have not established

that the changes Plaintiff experienced in her job duties were “no more than minor’ or a

demotion of some form or substance. While Plaintiff may ultimately fail to satisfy this

element of her claim, that is not the question before the Court at the motion to dismiss

stage. Skinner v. Switzer, 562 U.S. 521, 529-30 (2011). At this stage the Court decides

only that a decision that Plaintiff cannot satisfy the adverse action element of her retaliation

claim as a matter of law would be premature. Therefore, Defendants’ motion to dismiss

Plaintiffs FMLA retaliation claim will be denied.

C. Fraud Claim

The Magistrate Judge determined that Plaintiff's allegations of fraud did not contain

the specificity required by Federal Rule of Civil Procedure 9(b) with respect to the intent

prong of the claim. (Doc. 46 at 39.) The R&R contains the following analysis:

Allen alleges the January 2, 2015, email was a false representation of “an

existing AAA policy on the ‘Accessing’ of SAMS” only from a AAA computer.

(Doc. 35, at 4). However, Allen does not state a fraud claim against Browning

and Carmody because Allen does not allege Browning and Carmody acted with

an intent to defraud anyone. Under the Scienter heading of her complaint, Allen

merely alleges Browning and Carmody knew it to be false and did not take any

affirmative steps to correct its falsity. (Doc. 35, at 4). See Malibu Media, LLC v.

Doe, 238 F. Supp. 3d 638, 646 (M.D. Pa. 2017) (granting motion to dismiss

fraud claim where only “cursory assertion” supported claim that defendants

acted with requisite intent). As such, Allen’s allegations of fraud do not contain

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the specificity required by Fed. R. Civ. P. 9(b) with respect to the intent prong

of her fraud claim. See Foster, 372 F. Supp. 2d at 800 (quoting Feeney, 849

A.2d at 597).

(Doc. 46 at 39.)

Plaintiff objects to the Magistrate Judge’s determination but she does so in a general

and vague manner without specifically addressing the deficit identified in the R&R, i.e.,

Plaintiff did not allege that Browning (the director of the Lackawanna County Area Agency

on Aging, where she had been employed) or Carmody (Lackawanna County’s attorney)

acted with an intent to defraud anyone (Doc. 46 at 39). (Doc. 47 at 11.) Plaintiff then

states that she has answered “Who, What, When, Where, Why, and How.” (/d.)

Turning now to the question of whether Plaintiffs Second Amended Complaint states

that Browning or Carmody acted with an intent to defraud anyone, the Court will first look to

the application of Rule 9(b)’s specificity requirement to Plaintiff's pro se Second Amended

Complaint.

Other Courts have found that “Rule 9(b)'s particularity standard may be read more

broadly for pro se complainants, but it still requires of them a degree of specificity.” U.S. ex

rel. Eisenstein v. City of New York, Civ. A. No. 03-CV-413, 2006 WL 846378, at * (Mar. 31,

2006). In Foster, this Court noted that the pro se plaintiff had relied on Killian v.

McCulloch, 850 F.Supp. 1239, 1254 (E.D.Pa.1994), for the position that “as long as there is

some precision and some measure of substantiation in the pleading the rule is satisfied.”

372 F. Supp. 2d at 800 (internal quotation omitted). Foster did not dispute the proposition

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but concluded that there was “no precision or substantiation” in the operative complaint in

that the plaintiff had alleged only that the defendants were “guilty of tampering, redacting,

altering documentation dates, time, and content.” /d. (internal quotation omitted).

Killian discussed Rule 9(b)'s specificity requirement as follows:

the Third Circuit has noted that “in applying Rule 9(b), ‘focusing exclusively on

its “particularity language” is too narrow an approach and fails to take

account of the general simplicity and flexibility contemplated by the

rules.” /d. (citations omitted). The rule's purpose is to give notice to the

defendant of the precise misconduct with which she is charged, and to protect

her from any spurious charges of fraudulent or immoral behavior. In Re

Meridian Securities Litigation, 772 F. Supp. 223, 229 (E.D.Pa.1991). As long

as there is some precision and some measure of substantiation in the

pleadings, the rule will be satisfied. /d.

850 F. Supp. at 1253-54. The Third Circuit has noted that Rule 9(b)’s requirement that a

fraud claim be pled with particularity is meant “[t]o place the defendant on notice of the

‘precise misconduct with which [it is] charged,” Frederico v. Home Depot, 507 F.3d 188,

200 (3d Cir.2007) (alteration in original) (quoting Lum v. Bank of America, 361 F.3d 217,

223-24 (3d Cir. 2004)). To do so, a plaintiff “must plead or allege the date, time and place

of the alleged fraud or otherwise inject precision or some measure of substantiation into a

fraud allegation,” id. at 200 (citing Lum, 361 F.3d at 224), and “must allege who made a

misrepresentation to whom and the general content of the misrepresentation,” Lum, 361

F.3d at 224.

While Plaintiff's Second Amended Complaint is far from a model of clarity, Plaintiff

states under Count Two for “Fraud upon the Court” that Browning and Carmody “submitted”

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the allegedly false email statement that they knew was false. (Doc. 35 at 4 fc.) In that

paragraph she does not say to whom they submitted it. However, in the following

paragraphs, Plaintiff states that that the email was relied upon by the Unemployment

Compensation Judge at the Unemployment Compensation Hearing for the Lackawanna

County Appeal to show “just cause to fire Plaintiff for willful misconduct due to breach of this

... email policy” (id. J d.), and the loss of unemployment compensation eligibility was the

“result of LC, AAA Director [Browning] and Attorney [Carmody] Fraud, in post-employment

reprisal against Allen” (id. {| e).

A fair reading of these assertions indicates that Plaintiff is alleging that Brown and

Carmody submitted the email they knew to be false to the unemployment compensation

judge at the hearing for the County's appeal of the award of benefits to Plaintiff. This

reading of the allegations contained in the fraud claim supports a finding, contrary to that of

the Magistrate Judge, that Plaintiff alleges Browning and Carmody acted with an intent to

defraud someone, i.e., the Unemployment Compensation Hearing Judge. The Court

therefore finds that Plaintiff's fraud claim, though inartfully pled, places Defendants on notice

of the “precise misconduct with which [they are] charged,” Frederico, 507 F.3d at 200

(internal quotation omitted).!

4 Though Plaintiff cannot satisfy the pleading standard through objection, she provides additional

relevant information with her Objections. (Doc. 47.) Plaintiff clarifies that she did not allege that Karen

Shimelfenig falsely testified at the Unemployment Compensation Hearing as the Magistrate Judge

indicated in the background section of the R&R. (Doc. 47 at 4 (citing Doc. 46 at 5).) Plaintiff further notes

that the “email of an unreal, LC policy on ‘accessing’ was submitted to the UC Referee by Defendants’

lawyer, Matthew J. Carmody, in a fraudulent representation of the actual, LC computer-usage policy.”

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D. Intentional Infliction of Emotional Distress

The Magistrate Judge concluded that Plaintiff cannot state a claim for Intentional

Infliction of Emotional Distress (IIED) as a matter of law, finding that “[e]ven when liberally

construed and taken as true, as a matter of law, none of Defendants’ conduct rises to a

level of extremity or outrage as would afford Allen relief.” (Doc. 46 at 41 (citing Moyer v.

Lebanon Cty., No. 3:16-CV-01424, 2017 WL 6989168, at “4 (M.D. Pa. Dec. 28, 2017)

(report and recommendation adopted 2018 WL 372444 (M.D. Pa. Jan. 18, 2018)).)

With her objections, Plaintiff confirms that she intended to raise an IIED claim and

lists the actions which she asserts to be “conspicuously disgraceful, offensive conduct.”

(Doc. 47 at 12.)

Under Count Four for “ADA, Disability Harassment in Hostile Ambience” in her

Second Amended Complaint, Plaintiff alleges that “with the misconduct knowledge of

(Employer], et al., [she] has endured pervasive and grievous, psychological duress/harm to

the point of necessitated, professional mental-health counseling for suicidal ideation from

November 19th 2016, to 2018. (Tort Intentional Infliction of Severe, Emotional Distress)”

(Doc. 35 at 9 fn). In the same count, Plaintiff states that she “suffers from unexpected,

distress-triggered, Anxiety attacks, and severe, pervasive Osteoarthritis pain in knees and

feet” (Doc. 35 at 6 fc) and identifies several allegedly offensive actions (id. at 7-8).

(Doc. 47 at 4.) As noted previously, Defendants did not respond to Plaintiff's objections so, although the

Court does not rely on the assertion quoted above, Defendant has provided no basis upon which to

discount it.

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Elsewhere in the Second Amended Complaint, Plaintiff alleges that her Anxiety Disorder

with Major Depression “causes physical incapacitate [sic], and necessitates FMLA

intermittent leave, when distress-triggered” and her ADA protection is based on Anxiety

Disorder with Major Depression and osteoarthritis in her knees and feet. (Doc. 35 at 5, 6.)

Plaintiffs Second Amended Complaint is replete with allegations of wrongful conduct

on the part of her employer. On the basis of such claims the Magistrate Judge concluded

that Plaintiff's claims for Retaliation under the ADA, Hostile Work Environment under the

ADA, Failure to Accommodate under the ADA, and Fourteenth Amendment Due Process

Claims brought against Lackawanna County in connection with her October 19, 2016, and

November 1, 2016, Pre-Termination Notices should go forward. The Court has concluded

Plaintiffs Disability Discrimination Claim under the ADA, her Retaliation Claim brought

under the FMLA, and her Fraud claim also go forward. See supra pp. 4-14.

Given that Plaintiffs allegations of wrongdoing contained in the claims which go

forward have been found to contain plausible claims for relief, the arguable cumulative

effect of that alleged wrongdoing on Plaintiff, who “has a duress-induced, episodic Anxiety

Disorder with Major Depression, medical condition, that causes physical incapacitate [sic],

and necessitates FMLA intermittent leave, when distress-triggered” (Doc. 35 at 5), must be

considered when determining whether she has stated a plausible IIED claim. Neither the

Magistrate Judge nor Defendants appear to have considered the claim from this

perspective, i.e., their analysis of the claim does not show that they read the complaint as a

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whole in concluding Plaintiff could not state an IIED claim as a matter of law.? (Doc. 39 □□

19 n.4; Doc. 46 at 39-41.) Recognizing Plaintiffs inartful pleading and the difficulty in

establishing a claim for IIED in the employment context (Doc. 46 at 40 (listing cases)), the

factual allegations contained in claims which survive the pending motion coupled with

allegations related to Plaintiff's anxiety disorder and depression may present the rare case

where such a claim succeeds. Thus, the Court concludes it would be premature at this

stage of the proceedings to find that Plaintiff has not stated a plausible IIED claim

D. Other Matters

Plaintiff does not provide meaningful objections to the Magistrate Judge's

recommendations that Defendants’ motion should be granted as to many of her Fourteenth

Amendment Due Process claims. (See Doc. 47 at 9-10 (citing R&R at 27-35).) Therefore,

the Court will adopt the Magistrate Judge’s recommendations as to these claims.

E. Leave to Amend

The Court concurs with the R&R’s assessment that leave to amend is not warranted

in light of Plaintiff's previous opportunities to amend and the state of the current record.

(See Doc. 46 at 41-42.) This determination is bolstered by the fact that the Court has

found that, in addition to the four claims the Magistrate Judge recommends should not be

2 It was not until Plaintiff filed objections to the R&R that she more specifically elaborated the basis

for her emotional infliction of emotional distress claim. (Doc. 47 at 12.) Defendants did not file a response

to Plaintiff's objections and, therefore, have not factually discredited assertions made in Plaintiffs filing

regarding this claim.

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dismissed, the Court has sustained Plaintiffs objections on the four claims addressed with

specificity in her Objections to Magistrate District Judge’s Report & Recommendation” (Doc.

47), her claims for Disability Discrimination Claim under the ADA, Retaliation Claim brought

under the FMLA, Fraud, and Intentional Infliction of Emotional Distress.

V. CONCLUSION

For the foregoing reasons the Court will adopt the R&R (Doc. 46) in part and the

Court will deny Defendants’ Motion to Dismiss (Doc. 36) in part and grant it in part. The

Court will DENY the motion as to the following claims: Retaliation under the ADA; Hostile

Work Environment under the ADA; Failure to Accommodate under the ADA; Disability

Discrimination under the ADA; Retaliation under the FMLA; Fraud; Intentional Infliction of

Emotional Distress; and Fourteenth Amendment Due Process against Lackawanna County

in connection with her October 19, 2016, and November 1, 2016, Pre-Termination Notices.

The Court will GRANT Defendants’ Motion to Dismiss in all other respects. An appropriate

Order will be filed simultaneously with this Memorandum Qpinion.

</

Robert D.

United States District Judge

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