# Still v. Hydro Extruders, LLC

> District Court, M.D. Pennsylvania · May 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10408685

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10408685

## How later opinions describe it (automated extraction)

- noting that a district court may sua sponte dismiss an ADA claim for failure to exhaust so long as the claim is dismissed without prejudice
- affirming the district court’s sua sponte dismissal of the plaintiff’s ADA claim for failure to exhaust administrative remedies
- holding that “for an interference claim to be viable, the plaintiff must show that FMLA benefits were actually withheld”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL STILL, : CIVIL NO. 3:19-CV-2089
:
Plaintiff, :
:
v. : (Magistrate Judge Carlson)
:
HYDRO EXTRUDERS, LLC and :
TRACEY MCMILLAN-BOOKER, :
:
Defendants. :

MEMORANDUM OPINION

I. INTRODUCTION
Before the Court is a motion to dismiss filed by the defendants, Hydro
Extruders, LLC (“Hydro”) and Tracey McMillian-Booker. (Doc. 10). The plaintiff,
Michael Still, brought the instant suit against the defendants claiming he was
wrongfully terminated and retaliated against for taking leave under the Family
Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”).
Still alleges that he requested to take FMLA leave to obtain treatment for substance
abuse issues, and that he was terminated while he was out on FMLA leave.
The motion is fully briefed and ripe for disposition. After a review of the
pleadings, we will grant in part and deny in part the defendants’ motion to dismiss.
We will grant the motion as to the ADA claims and as to the FMLA claim brought
against McMillan-Booker, but we will deny the motion as to the FMLA claim
against Hydro, as we find that when this pro se complaint is liberally construed, there
are enough facts pleaded in the complaint to move forward with this claim.

II. BACKGROUND
The factual background to this memorandum opinion is taken from the
allegations set forth in the plaintiff’s pro se complaint, which we are enjoined to

accept as true for purposes of considering the pending motion to dismiss.
Michael Still was hired by SAPA Extruders, North America, now known as
Hydro Extruders, LLC (“Hydro”), as a die-shop laborer on April 5, 2010. (Doc. 1,
at 2). Still avers he was an exemplary employee during his nine-year tenure during

which he received several recognition awards and no disciplinary action. (Id.)
According to Still, despite his efforts as an exemplary employee, he was subjected
to repeated harassment and racial epithets from his colleagues, and his numerous

complaints to management went largely ignored. (Id.) Still alleges the continued
harassment and lack of help from his supervisors caused him “extreme anxiety and
anger,” which he claims lead to his drug use as a means to cope with his negative
work environment. (Id.)

On or about February 20, 2019, Still self-reported his drug use to Tracey
McMillan-Booker, a human resources representative at Hydro, and at that time, she
put Still in contact with the organization’s insurance and short-term disability

provider. (Id.) Still’s short-term disability and FMLA leave were ultimately
approved for February 25, 2019 through April 2, 2019, and he took his allotted leave.
(Id., Exs. A & B).

Not long after Still’s initial phone call with the insurance provider, he began
experiencing withdrawal symptoms and checked himself into the detoxification
program at the Wilkes-Barre Veteran’s Affairs (“VA”) hospital. (Id.) According to

Still, his employment troubles began the following day, February 26, 2019, after he
confided in his healthcare providers that he had a violent dream—seven years
prior—about harming two of his colleagues at Hydro. (Id., at 3). Still avers that after
his counseling session, and upon request from a social worker, he refused to sign an

authorization and disclosure form because he feared his confidential medical
information would be shared with his employer. (Id.) Still remained in outpatient
treatment until March 4, 2019. (Id.)

Still asserts that between March 6 and March 20, 2019, he received numerous
telephone calls from McMillan-Booker inquiring into the specifics and status of his
leave. (Id., at 3-4). Specifically, on March 8, 2019, McMillan-Booker allegedly
called Still looking for an explanation about a February 27, 2019 phone call she

received from the VA about a particular conversation Still had with social workers
during his in-patient treatment. (Id., at 4). Still became upset with her inquiries and
claims that he ultimately told McMillan-Booker he would call an attorney if she

continued to contact him while he was out on his FMLA leave. (Id.) Finally, on
March 28, 2019, Still contacted McMillan-Booker after his final treatment and
informed her that he had been released to return to work, and she informed him that

he was to report to Hydro to resume his normal job duties on April 3, 2019. (Id.)
On or about April 1, 2019, two days before he was to return to work, Still was
contacted via telephone conference by a human resources manager from another

Hydro facility, the union steward of the International Union of Operating Engineers
542 and 835, and McMillan-Booker, and was informed that he was being suspended
from his job pending an internal investigation related to “information received,”
which Still believes related to the February 27, 2019 call from the VA regarding

Still’s violent dream. (Id.) On or about April 10, 2019, Still received another call
from the same parties, during which he was informed that he was being terminated
due to Hydro’s concerns for the safety of its employees upon learning about Still’s

dream in which he apparently dreamed of harming his colleagues. (Id.)
Still filed his pro se complaint in the district court on December 9, 2019. He
alleges that he was wrongfully terminated and retaliated against under the ADA and
for taking leave under the FMLA. The defendants filed their motion to dismiss on

February 10, 2020 (Doc. 10), and the motion has been fully briefed. (Docs. 17, 18,
20). For the reasons set forth below, the motion will be granted in part and denied in
part.
III. STANDARD OF REVIEW
The defendants have moved to dismiss the claims against them pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure, “failure to state a claim upon
which relief can be granted.” With respect to this benchmark standard for legal
sufficiency of a complaint, the United States Court of Appeals for the Third Circuit

has aptly noted the evolving standards governing pleading practice in federal court,
stating that:
Standards of pleading have been in the forefront of jurisprudence in
recent years. Beginning with the Supreme Court’s opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our
opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.
2008)]and culminating recently with the Supreme Court’s decision in
Ashcroft v. Iqbal –U.S.–, 129 S. Ct. 1937 (2009) pleading standards
have seemingly shifted from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to plead more than
the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief
may be granted, the Court must accept as true all allegations in the complaint and all
reasonable inferences that can be drawn therefrom are to be construed in the light
most favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel, Inc.,
20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s
bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court
need not “assume that a ... plaintiff can prove facts that the ... plaintiff has not
alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a
plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of
actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right
to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon
which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,
556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.” Id. at 679.
According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather,

in conducting a review of the adequacy of complaint, the Supreme Court has advised
trial courts that they must:
[B]egin by identifying pleadings that because they are no more than
conclusions are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.

Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain
more than mere legal labels and conclusions. Rather, a complaint must recite factual
allegations sufficient to raise the plaintiff’s claimed right to relief beyond the level
of mere speculation. As the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to
state a claim, district courts should conduct a two-part analysis. First,
the factual and legal elements of a claim should be separated. The
District Court must accept all of the complaint's well-pleaded facts as
true, but may disregard any legal conclusions. Second, a District Court
must then determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a ‘plausible claim for relief.’ In
other words, a complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to ‘show’ such an entitlement
with its facts.

Fowler, 578 F.3d at 210-11.
Two years after Fowler, the Third Circuit further observed:
The Supreme Court in Twombly set forth the “plausibility” standard for
overcoming a motion to dismiss and refined this approach in Iqbal. The
plausibility standard requires the complaint to allege “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard
when the factual pleadings “allow[ ] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal,
129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. (1955)).
This standard requires showing “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A complaint which pleads facts
“merely consistent with” a defendant's liability, [ ] “stops short of the
line between possibility and plausibility of ‘entitlement of relief.’”
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In practice, consideration of the legal sufficiency of a complaint entails a
three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead
to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should
identify allegations that, “because they are no more than conclusions,
are not entitled to the assumption of truth.” Id. at 1950. Finally, “where
there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an
entitlement for relief.” Id.

Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
In addition to these pleading rules, a civil complaint must comply with the
requirements of Rule 8(a) of the Federal Rules of Civil Procedure, which defines
what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and
plain statement of the grounds for the court’s jurisdiction, unless the
court already has jurisdiction and the claim needs no new jurisdictional
support; (2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and (3) a demand for the relief sought,
which may include relief in the alternative or different types of relief.

Fed. R. Civ. P. 8(a).

Thus, a well-pleaded complaint must contain more than mere legal labels and
conclusions. Rather, a plaintiff’s complaint must recite factual allegations which are
sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere
speculation, set forth in a “short and plain” statement of a cause of action.
It is against these legal benchmarks that we assess the defendants’ motion to
dismiss.

IV. DISCUSSION

As we have explained, the plaintiff brings claims against the defendants
pursuant to the ADA and the FMLA, alleging that he was wrongfully terminated
from his employment. The defendants challenge these claims, arguing that Still has
failed to state a claim upon which relief can be granted. Specifically, the defendants
contend that McMillan-Booker is not an “employer” under the FMLA and thus
cannot be individually liable to Still on this claim. Moreover, the defendants argue

that Still has failed to allege facts to support his ADA and FMLA claims against
Hydro.
With respect to the plaintiff’s claim under the ADA, we find that Still has not

shown that this claim has been administratively exhausted, and thus we will dismiss
this claim without prejudice to Still making such a showing. Moreover, we agree
with the defendants that the FMLA claim against McMillan-Booker should be
dismissed. However, we will deny the defendants’ motion with respect to the FMLA

claim against Hydro, as we find Still has pleaded enough facts, albeit hotly disputed
facts, to support an inference that he was terminated for using his FMLA leave.
A. Still Has Failed to Show that He Exhausted His ADA Claims.
At the outset, we note that before an employee may proceed with an

employment discrimination suit under the ADA, the employee must exhaust his
administrative remedies by filing a complaint of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). See 42 U.S.C. § 2000e–5(e)(1);

42 U.S.C. § 12117(a) (adopting Title VII enforcement scheme and remedies for
ADA). As the Court of Appeals has stated, “[t]he purpose of requiring exhaustion is
to afford the EEOC the opportunity to settle disputes through conference,
conciliation, and persuasion, avoiding unnecessary action in court.” Williams v. East

Orange Community Charter School, 396 F. App’x 895, 897 (3d Cir. 2010) (quoting
Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996) (internal quotations omitted)).
Here, there is no indication, either from the complaint or the parties’ briefs,

indicating that Still ever filed a claim of discrimination with the EEOC. Accordingly,
we will dismiss Still’s claims brought under the ADA without prejudice to Still
amending his complaint to show that his ADA claims have been administratively
exhausted.1

1 See Fernandez v. Rose Trucking, 429 F. App’x 145 (3d Cir. 2011) (affirming the
district court’s sua sponte dismissal of the plaintiff’s ADA claim for failure to
exhaust administrative remedies); Phillips v. Sheraton Hill Society, 163 F. App’x
93 (3d Cir. 2005) (noting that a district court may sua sponte dismiss an ADA
claim for failure to exhaust so long as the claim is dismissed without prejudice).
B. Still’s FMLA Claim against McMillan-Booker Will Be Dismissed.
Still brings an FMLA claim against McMillan-Booker in her individual

capacity. However, an individual may be liable under the FMLA only if that
individual can be considered an “employer” within the meaning of the Act.
Accordingly, because we find that Still has not pleaded sufficient facts to support

this claim against McMillan-Booker in her individual capacity, we will dismiss this
claim without prejudice.
The FMLA defines an employer as “any person engaged in commerce or in
any industry or activity affecting commerce who employs 50 or more employees for

each working day during each of 20 or more calendar workweeks in the current or
preceding calendar year,” including “any person who acts, directly or indirectly, in
the interest of an employer to any of the employees of such employer.” 29 U.S.C. §

2611(4)(A)(i)-(ii)(I). “Section 2611(4)(A)(ii)(I)’s inclusion of ‘any person who acts,
directly or indirectly, in the interest of an employer’ plainly contemplates that
liability for FMLA violations may be imposed upon an individual person who would
not otherwise be regarded as the plaintiff’s ‘employer.’” Haybarger v. Lawrence Cty.

Adult Prob. & Parole, 667 F.3d 408, 413 (3d Cir. 2012). In determining whether an
individual constitutes an employer within the meaning of the statute, the Third
Circuit held that “an individual is subject to FMLA liability when he or she exercises

‘supervisory authority over the complaining employee and was responsible in whole
or part for the alleged violation’ while acting in the employer’s interest.” Id. at 417
(quoting Riordan v. Kempiners, 831 F.2d 690, 694 (7th Cir. 1987)).

When analyzing a supervisor’s control over an employee under the FMLA,
courts use an “economic reality” multifactorial, totality-of-the-circumstances test.
Id. The relevant factors of this test include whether the supervisor “(1) had the power

to hire and fire the employee[], (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records.” Id. at 418. The Haybarger Court
applied these factors and concluded that the supervisor in that case, while lacking

the actual authority to fire an employee, “exercised significant control over the
conditions of Haybarger’s employment prior to her termination.” Id. at 419. In
making this determination, the Court relied on several factors that gave significant

weight to the supervisor’s “employer” status, including his recommendation to the
district court administrator and president judge to terminate Haybarger’s
employment; his termination letter to Haybarger indicating it was in the “best
interest” of the organization’s operations; his involvement and preparation in

Haybarger’s performance reviews; and his disciplinary action of Haybarger when he
was dissatisfied with her performance with no previous approval from his
supervisors. Id. at 418-19. The Court held that the totality of the circumstances

suggested that the supervisor qualified as Haybarger’s employer. Id. at 419.
On this score, after a review of the complaint, we find that Still has not pleaded
any facts that would indicate McMillan-Booker was acting as his employer as

defined by the FMLA. The complaint omits any facts indicating whether McMillan-
Booker had the power to hire or fire employees, controlled his work schedule,
determined his rate and method of payment, or maintained employment records.

Moreover, Still avers that a different human resources director from a different
Hydro location participated in the calls during which the decision was made to
suspend and terminate his employment. There is no indication that McMillan-
Booker had the authority to terminate Still’s employment, or even that she had

played a significant role in the decision to terminate his employment. The complaint
merely avers that McMillan-Booker was a human resources representative with
whom Still worked to obtain his FMLA leave. Without more, McMillan-Booker’s

title as a human resources representative is simply not enough to overcome the
factors set forth in Haybarger, and it does not show that she was acting as an
employer under § 2611(4)(A)(ii)(I). Accordingly, the defendant’s motion to dismiss
Still’s FMLA claim against McMillan-Booker in her individual capacity is granted

but with leave to amend the complaint to set forth factual allegations supporting this
claim.
C. Still Has Stated an FMLA Retaliation Claim Against Hydro.
Finally, while we have found that Still has failed to plead sufficient facts to

state an FMLA claim against McMillan-Booker individually, we find that the
complaint sufficiently states a claim against Hydro for FMLA retaliation. We reach
this conclusion while noting that the facts relied upon by Still are hotly disputed by

Hydro, which views the background of this dispute in starkly different terms.
However, at this juncture, where our consideration is cabined by, and confined to,
the well-pleaded facts in the complaint, we will deny the defendants’ motion with
respect to this claim.

At the outset, we are reminded that “a document filed pro se is to be liberally
construed, ... and a pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007).2 Still brings a broad FMLA claim against the

defendants without indicating whether his claims arise under a retaliation or
interference provision as allowed by the FMLA. However, to the extent Still is
alleging an interference claim, this claim fails as a matter of law because his

requested FMLA leave was granted and he took his allotted time. See Ross v.

2 The defendants’ motion to dismiss the complaint pursuant to Rule 10(b) for
failure to adhere to pleading format requirements is also denied. Although Still's
complaint omits numbered paragraphs, it clearly discloses the nature of Still’s
grievances and his theory of the case, and it is clear that the defendants are on
notice of the claims against them.
Gilhuly, 755 F.3d 185, 192 (3d Cir. 2014) (holding that “for an interference claim to
be viable, the plaintiff must show that FMLA benefits were actually withheld”).

To state a claim for retaliation under the FMLA, an employee must allege that
after taking FMLA-qualifying leave, he was subjected to an adverse employment
action, including termination or other retaliatory action, because he took time away

from work for FMLA-qualifying reasons. See, e.g., Freeman v. Phila. Hous. Auth.,
No. 12-1422, 2013 WL 3761274, at *22 (E.D. Pa. July 18, 2013) (describing
retaliation claims as those “where an employee requested or took FMLA leave,
remained at or returned to work, and then was subject to some type of adverse

employment action such as termination or demotion.”).
To prevail on his FMLA retaliation claim, it is the plaintiff’s burden to
establish a prima facie case by showing that (1) he invoked a right to FMLA-

qualifying leave, (2) subsequently suffered an adverse employment decision, and (3)
demonstrate that the adverse action was causally related to his invocation of his
FMLA rights. Ross, 755 F.3d at 193 (citing Lichtenstein v. Univ. of Pittsburgh Med.
Ctr., 691 F.3d 294, 302 (3d Cir. 2012)). If the plaintiff establishes a prima facie case,

the burden of production shifts to the employer to show a legitimate, non-retaliatory
reason for the allegedly adverse employment decision. Lichtenstein, 691 F.3d at 302.
If the employer satisfies this “minimal burden,” id., the plaintiff has the burden of

establishing evidence sufficient to cast doubt on the employer's legitimate, non-
retaliatory reason. Id. As we have noted, the essence of a retaliation claim is that the
defendant has taken some adverse action against an employee because of her use of

FMLA. Kintz v. SMNRC, L.P., No. 4:16-CV-02313, 2018 WL 5279320, at *5
(M.D. Pa. Oct. 24, 2018).
Here, it is undisputed that Still meets the first two elements of a prima facie

case of retaliation. On this score, Still took his approved FMLA leave from February
25, 2019 through April 2, 2019, and he suffered an adverse action when was
suspended while he was out on leave on April 1, and when he was subsequently
terminated from his employment with Hydro on April 10. In addition, we find that

Still has pleaded enough at this stage to show that his suspension and termination
were causally related to his invocation of FMLA leave. In the context of a motion
for summary judgment, the Third Circuit has spoken to the nature of the

circumstantial evidence needed to create a genuine issue of fact regarding causation:
To demonstrate a prima facie case of causation, [a plaintiff] must point
to evidence sufficient to create an inference that a causative link exists
between her FMLA leave and her termination. See Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 279–81 (3d Cir.2000). When the
“temporal proximity” between the protected activity and adverse action
is “unduly suggestive,” this “is sufficient standing alone to create an
inference of causality and defeat summary judgment.” LeBoon v.
Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir.2007).
“Where the temporal proximity is not ‘unusually suggestive,’ we ask
whether ‘the proffered evidence, looked at as a whole, may suffice to
raise the inference.’” Id. (quoting Farrell, 206 F.3d at 280).

Lichtenstein, 691 F.3d at 307.
Put another way:
To demonstrate a causal connection, a plaintiff generally must show
“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.” Lauren W.
ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
Employers “cannot use the taking of FMLA leave as a negative factor
in employment actions.” 29 C.F.R. § 825.220(c).

Budhun, 765 F.3d at 258.
Here, because the plaintiff’s burden is less onerous at the motion to dismiss
stage, we find that he has sufficiently pleaded facts to raise an inference that his
termination was casually connected to the invocation of his FMLA rights. See
Spurlock v. NYNEX, 949 F.Supp. 1022, 1032 (W.D.N.Y. 1996) (“plaintiff’s burden
to survive a summary judgment motion at the prima facie stage of a retaliation case
is de minimis, [and] it is difficult to see how the plaintiff’s burden at the motion to
dismiss stage can be more onerous”). In this case, Still claims that he was suspended
while he was out on FMLA leave and a mere two days before he was supposed to
return to work, and that he was subsequently terminated after being told he was not
permitted to return to work. Accordingly, we find the temporal proximity to be

sufficiently suggestive to support an inference of causation in this case.
The burden then shifts to Hydro to proffer a legitimate, non-retaliatory reason
for Still’s adverse action. On this score, Hydro contends that Still was terminated

based on information communicated to Hydro by Still’s healthcare workers that Still
carried a risk of “commit[ting] violence against his co-workers,” and that he “was a
physical threat to other employees,” based on Still’s apparent admission to his

counselor that he had a dream in which he harmed two coworkers. (Doc. 17). While
this information may well fully satisfy Hydro’s burden of proof and persuasion, in
our view, it requires us to foray beyond the pleadings to a consideration of the

undisputed facts, a task better suited for a summary judgment motion. In any event,
Still also forays beyond the pleadings making a factually-based claim that Hydro’s
reason for terminating him was a pretext for retaliation.
On this score, Still alleges that while he was out on FMLA leave, and while

he was receiving treatment, McMillan-Booker contacted him numerous times
inquiring into the specifics and status of his leave. (Doc. 1, at 3-4). He avers that
during his leave, McMillan-Booker asked him to “write her a letter requesting time

off,” and that she further inquired how much time off he was taking. (Id., at 3).
Additionally, he alleges that McMillan-Booker inquired about his substance abuse
and “became irate when [he] refused to answer her.” (Id.) Still claims that McMillan-
Booker again telephoned him questioning him about a specific conversation he had

while at the VA, why he needed so much time off of work, and that he “could return
to work without being fully detoxed.” (Id., at 4). Hydro has not had an opportunity
to address these factual matters alleged by Still to support his claim that Hydro’s

stated reason for his employment termination was pretextual. Therefore, resolution
of Still’s FMLA retaliation claim against Hydro takes us beyond the pleadings to an
assessment of the evidence, a task which must await another day, and another motion

in the nature of a motion for summary judgment. Accordingly the defendants’
motion to dismiss this claim on the pleadings alone will be denied without prejudice
to the filing of a properly documented motion for summary judgment.

V. CONCLUSION

Accordingly, for the foregoing reasons, the defendants’ motion to dismiss the
plaintiffs’ complaint (Doc. 10) will be GRANTED IN PART AND DENIED IN
PART. The defendants’ motion will be DENIED with respect to the FMLA
retaliation claim against Hydro. The motion will GRANTED with respect to the
plaintiff’s ADA claims and the FMLA claim against McMillan-Booker, and these
claims will be dismissed without prejudice to the plaintiff filing an amended
complaint to address the pleading deficiencies we have identified.3
An appropriate order follows.

S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

Submitted this 4th day of May 2020.

3 We recognize that pro se plaintiffs often should be afforded an opportunity to
amend a complaint before the complaint is dismissed in its entirety, see Fletcher-
Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007),
unless it is clear that granting further leave to amend would be futile, or result in
undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408685. Public record. Not legal advice.