Malik v. Wyoming Valley Medical Center, P.C.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UZMA MALIK, : Civil No. 3:19-CV-01547

:

Plaintiff, :

:

v. :

:

WYOMING VALLEY MEDICAL :

CENTER, P.C., et. al, :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is Defendant Dr. Michael Greenberg’s motion to dismiss.

(Doc. 17.) Among other allegations not relevant to resolving this motion, Plaintiff

alleges that Defendant Greenberg committed violations of the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and the Equal Pay Act (“EPA”),

29 U.S.C. § 206(d), in addition to the state law tort of intentional infliction of

emotional distress. Defendant Greenberg seeks to dismiss each of Plaintiff’s

claims against him for failure to state a claim under Rule 12(b)(6). The court finds

that Plaintiff has sufficiently alleged a claim of FMLA retaliation, but has not pled

facts sufficient to state a claim of FMLA interference, EPA violation, or intentional

infliction of emotional distress. For the reasons that follow, the court grants in part

and denies in part Defendant Greenberg’s motion to dismiss.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Dr. Uzma Malik filed suit against Defendants Wyoming Valley

Medical Center, P.C., Geisinger Health System, Dr. Anand Mahadevan, and Dr.

Michael Greenberg, alleging violations of the Americans with Disabilities Act

("ADA"), 42 USC §§ 12101 et. seq., the FMLA, and the EPA, in addition to

various state law tort claims. (See Doc. 11.) Plaintiff only seeks relief from

Defendant Greenberg under three of these causes of action by alleging that all the

Defendants, including Defendant Greenberg, committed violations of the FMLA

and the EPA, in addition to the state law tort of intentional infliction of emotional

distress. (Id. at ¶¶ 22, 24, 25.) 1

The following factual background is gleaned from Plaintiff’s amended

complaint, and is assumed to be true for the purpose of ruling on the pending

motion to dismiss. Plaintiff is a board-certified physician who specializes in

radiation oncology and cancer treatment. (Id. at ¶ 16.) She suffers from a variety

of chronic conditions including diabetes, fibromyalgia, back and limb issues,

lumbar disc diseases, and cyst problems. (Id. at ¶ 20.) About 13 years ago, she

began working at Defendant Wyoming Valley Medical Center, which is owned

and operated by Defendant Geisinger Health System. (Id. at ¶¶ 12, 17.) Defendant

1 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

Mahadevan, the chairman of the radiation oncology department at Wyoming

Valley Medical Center, and Defendant Greenberg, another “high level manager”

there, oversaw and managed Plaintiff’s work. (Id. at ¶¶ 10–11, 19, 83.)

In January 2018, Plaintiff began discussing her intention to take FMLA

leave from the beginning of February through May of 2018. (Id. at ¶ 25.) A week

before she began her leave, Defendants announced that they were eliminating her

position as radiation oncology director and creating a new but “virtually identical”

director-level position for the department, the northeast regional radiation

oncology director, effective January 31, 2018. (Id. at ¶¶ 25–27.) The restructuring

reduced her to an “associate” in the department on the day before her leave was

scheduled to begin. (Id. at ¶¶ 25–26.) While Plaintiff was on leave, Defendant

Greenberg filled in for her. (Id. at ¶ 27.) At the end of her leave in May 2018, she

applied for the newly restructured director-level position, but she was “not given

meaningful consideration or hired for the job.” (Id. at ¶ 27-28.) When she

returned to work from FMLA leave, she was reinstated as an associate in the

radiation oncology department. (Id. at ¶ 30.) Effective July 2018, Defendant

Greenberg assumed the role of northeast regional radiation oncology director. (Id.

at ¶ 29.)

Upon returning to work, Plaintiff contends that Defendants subjected her to

a “very hostile work environment,” due to repeated discipline, admonishment,

scrutiny, ostracism, derogatory treatment, disparate treatment with respect to

company policies, negative references concerning the quality of her health, and

failures to provide her with medical accommodations. (Id. at ¶¶ 34–35.) In early

2019, Defendant Greenberg referred Plaintiff to Pennsylvania’s medical licensure

board for evaluation due to concerns that she was not fit to practice medicine in

connection with an alleged addiction to prescription pills. (Id. at ¶¶ 40–41, 48.)

Plaintiff was required to leave work for five weeks to undergo an investigation by

the State, which included submitting to extensive medical evaluations. (Id. at ¶

43.)

On May 17, 2019, Pennsylvania approved Plaintiff to resume practicing

medicine and confirmed that it would not proceed with any disciplinary action two

months later. (Id. at ¶ 50.) In early July, Defendants suspended Plaintiff for

leaving work two hours early when she was feeling sick. (Id. at ¶¶ 61–62.) Later

that month on July 23, 2019, Defendants converted Plaintiff’s suspension into

termination for allegedly making a false entry in a patient chart. (Id. at ¶ 69.)

Plaintiff commenced this action against Defendants on September 6, 2019.

(Doc. 1.) She subsequently filed an amended complaint adding another cause of

action against Defendants Wyoming Valley Medical Center and Geisinger Health

System. (Doc. 11.) On December 6, 2019, Defendant Greenberg filed a motion to

dismiss the claims against him. (Doc. 17.)2 On December 23, 2019, Plaintiff filed

a brief in opposition to Defendant Greenberg’s motion, and Defendant Greenberg

submitted a timely reply brief. (Docs. 19–20.) Defendant Greenberg’s motion to

dismiss has been fully briefed and is ripe for review.

JURISDICTION

Plaintiff alleges various violations of the FMLA and the EPA against Dr.

Greenberg. (See Doc. 11, at ¶¶ 22, 24.) Pursuant to 28 U.S.C. § 1331, this court

has jurisdiction over claims that arise under the laws of the United States. Plaintiff

also alleges a state law claim for intentional infliction of emotional distress, which

stems from the same controversy as the alleged violations of the FMLA and the

EPA. (Id. at 25.) Pursuant to 28 U.S.C. § 1367, this court has jurisdiction over the

state law claim because it is sufficiently related to the federal claims in the action

that it forms part of the same case or controversy.

STANDARD OF REVIEW

In order “[t]o 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)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

2 The remaining Defendants filed an answer, Doc. 14.

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

DISCUSSION

A. Plaintiff has sufficiently alleged that Defendant Greenberg exercised

supervisory authority over her under the FMLA and the EPA.

Plaintiff alleges that Defendant Greenberg can be held individually liable for

violations of the FMLA, for interference and retaliation, and the EPA amendment

to the Fair Labor Standards Act (“FLSA”), for gender-based pay disparities,

because he exercised supervisory authority over her. (See Doc. 11 at ¶¶ 22, 24.) In

response, Defendant Greenberg argues that Plaintiff’s claims under the FMLA and

the FLSA should be dismissed because Plaintiff has failed to plead facts that

establish that Defendant Greenberg exercised any control over her employment.

(See Doc. 18, at 8, 11.)

Upon review of this issue, the court concludes that Defendant Greenberg

exercised supervisory authority over Plaintiff for the purposes of finding individual

liability under the FMLA and the FLSA. The FMLA, 29 U.S.C. § 2611(4)(A)(ii),

and the FLSA, 29 U.S.C. § 203(d), provide that an “employer” includes “any

person who acts, directly or indirectly, in the interest of an employer to any of the

employees of such employer.” The Third Circuit has held that both the FMLA and

FLSA allow for the imposition of individual liability. See, e.g., Haybarger v.

Lawrence Cty. Adult Prob. & Parole, 667 F.3d 408, 414 (3d Cir. 2012) (stating

that the FMLA permits individual liability); Thompson v. Real Estate Mortg.

Network, 748 F.3d 142, 153–54 (3d Cir. 2014) (stating that the FLSA may impose

individual liability).

To that end, “an individual supervisor working for an employer may be

liable as an employer under the FMLA,” Haybarger, 667 F.3d at 415, and a

“company's owners, officers, or supervisory personnel may also constitute ‘joint

employers’ for purposes of liability under the FLSA.” Thompson, 748 F.3d at 153.

An individual may be held liable as an employer under the FMLA and the FLSA,

when he 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.” Haybarger, 667 F.3d at 417 (internal quotation omitted); Thompson, 748

F.3d at 153 (citing Haybarger, 667 F.3d at 417).

The Third Circuit uses the “economic reality” test to determine whether an

individual exercised “supervisory authority” over an employee. Haybarger, 667

F.3d at 417–18. In applying the “economic reality” test, courts should consider

whether the individual:

(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 (internal quotation and alteration omitted). This assessment “depends on

the totality of the circumstances rather than ‘technical concepts of the employment

relationship” and “no one of the four factors standing alone is dispositive.” Id.

(internal quotation and alteration omitted).

Here, Plaintiff has sufficiently alleged facts to demonstrate that Defendant

Greenberg exercised supervisory authority over her. First, Plaintiff alleges that “at

all times relevant to the allegations in this lawsuit,” Defendant Greenberg was a

“high-level manager” at Wyoming Valley Medical Center and Geisinger Health

System. (See Doc. 11, at 10.) Second, she alleges that Defendant Greenberg

personally managed and oversaw Plaintiff’s work. (Id. at ¶ 84.) Third, she avers

that Defendant Greenberg had the authority to discipline and counsel her, he

prepared “performance-related documentation” regarding her, and he referred her

to the Pennsylvania medical licensure board due to suspicions about her fitness to

practice medicine. (Id. at ¶¶ 40–41, 48, 83.) Fourth, she contends that Defendant

Greenberg took part in her removal from the radiation oncology director position,

her non-hire for the newly created director-level position in the department

resulting in her reduction to an associate, her suspension, and her termination. (Id.

at ¶ 25, 83.)

Viewing these facts in the light most favorable to Plaintiff, she has

sufficiently alleged that Defendant Greenberg exerted supervisory authority over

her. See Haybarger, 667 F.3d at 418 (finding that an individual exercised

sufficient control over the plaintiff’s employment because he “exercised substantial

authority over [the plaintiff’s] termination decision, even if he lacked final

authority to dismiss her” and “exercised significant control over the conditions of

[her] employment” because he monitored her performance and disciplined her

when dissatisfied with her work); Edelman v. Source Healthcare Analytics, LLC,

265 F. Supp. 3d 534, 540 (E.D. Pa. 2017) (holding that the plaintiff alleged

sufficient facts to establish that the defendant exercised supervisory authority over

her by pleading that he “had the power to fire her” and “supervised and controlled

her work schedule”); McDonald v. SEIU Healthcare Pennsylvania, No. 1:13-CV-

2555, 2014 WL 4672493, at *18 (M.D. Pa. Sept. 18, 2014) (holding that the

plaintiff alleged sufficient facts to establish that the defendants exercised

supervisory authority over her by “point[ing] to specific instances in which these

defendants exercised their supervisory role over her or her work schedule.”).

Having concluded that Plaintiff has sufficiently alleged that Defendant

Greenberg exercised supervisory authority over her, the court will assess the

substance of Plaintiff’s FMLA and FLSA claims to determine whether Plaintiff has

alleged sufficient facts to allow the claims to proceed.

B. Plaintiff has sufficiently alleged a prima facie case of FMLA

retaliation against Defendant Greenberg.

The FMLA protects individuals from discrimination based on the exercise of

their FMLA rights under its “retaliation” provisions. See 29 U.S.C. § 2615(a)(1)–

(2); 29 C.F.R. § 825.220(c) (“An employer is prohibited from discriminating

against employees ... who have used FMLA leave.”). To that end, employers

cannot “use the taking of FMLA leave as a negative factor in employment actions,

such as hiring, promotions or disciplinary actions.” 29 C.F.R. § 825.220(c).

Plaintiff alleges that Defendant Greenberg is liable for FMLA retaliation because

Defendant Greenberg took several adverse actions “against her due to her FMLA

protected activities.” (See Doc. 19, at 11.) In response, Defendant Greenberg

argues that Plaintiff’s FMLA retaliation claim fails because Plaintiff has not

alleged any facts to demonstrate “a causal connection between her use of FMLA

leave and any action by Defendant Greenberg.” (See Doc. 18, at 7.)3

3 Defendant Greenberg argues throughout his brief in support that the only action in Plaintiff’s

complaint “attributed to [Defendant Greenberg] is a referral to the state licensing board which

led to medical evaluations aimed at assessing [Plaintiff’s] fitness to practice medicine.” (See

Doc. 18, at 6, 7, 12–13.) This assertion is incorrect as Plaintiff includes Defendant Greenberg in

Courts have analyzed FMLA retaliation claims “through the lens of

employment discrimination law” because these claims require proof of the

employer’s retaliatory intent. Capps v. Mondelez Global, LLC, 847 F.3d 144, 151

(3d Cir. 2017). To establish a prima facie case of FMLA retaliation, a plaintiff

must demonstrate that:

(1) he invoked his right to FMLA-qualifying leave; (2) he suffered an

adverse employment decision; and (3) the adverse action was causally

related to his invocation of rights.

Id. at 152, n.6 (citing Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014)).

Regarding the first element, the plaintiff must demonstrate that she is

entitled to FMLA leave. 29 U.S.C. § 2612(a)(1). An individual is entitled to

FMLA leave if she is an “eligible employee” under the FMLA and suffers from a

serious medical condition. 29 U.S.C. § 2612(a)(1)(D). “Eligible employee” is

defined as an individual who has been employed for at least twelve months by the

employer from whom she is requesting leave, and has served at least 1,250 hours

with a covered employer during the previous twelve-month period. 29 U.S.C. §

2611(2)(A). An employer is subject to the FMLA when he engages in an industry

in or affecting commerce and “employs 50 or more employees for each working

her references to actions taken by the “Defendants.” (See Doc. 11, at ¶ 1.) Therefore, any action

in the complaint that is attributed to “Defendants” is attributed to Defendant Greenberg.

day during each of 20 or more calendar workweeks in the current or preceding

calendar year.” 29 U.S.C. § 2611(4)(a)(1).

Here, with respect to the first element, Plaintiff has sufficiently pled that she

used FMLA-qualifying leave. Plaintiff alleges that Defendant Greenberg is subject

to the FMLA because he was acting on behalf of an employer who “engaged in an

industry affecting interstate commerce which employs fifty (50) or more

employees for each working day during each of the twenty (20) or more calendar

work weeks in the current or preceding calendar year.” (See Doc. 11, at ¶ 81.)

Plaintiff further pleads that she is an “eligible employee” who qualified for leave

under the FMLA because she had been employed by Defendants for at least twelve

months, “had at least 1,250 hours of service during her last full year of

employment,” and received approval for twelve weeks of leave from February-

May 2018 due to her serious health conditions. 4 (Id. at ¶¶ 22–23, 78–80, 82.)

Regarding the second element, “adverse employment action” is defined as

any action that “alters the employee's compensation, terms, conditions, or

privileges of employment, deprives him or her of employment opportunities, or

adversely affects his or her status as an employee.” Budhun v. Reading Hosp. &

4 To the extent that Plaintiff also alleges that she sought to use FMLA leave on July 2, 2019, so

that she could leave two hours early from work for feeling ill (see Doc. 11, at ¶ 62), Plaintiff has

not pled facts sufficient to demonstrate that her two-hour departure constituted FMLA qualifying

leave under 29 U.S.C.A § 2612 (a)(1).

Med. Ctr., 765 F.3d 245, 257 (3d Cir. 2014) (internal quotation omitted). Some

examples of adverse employment actions recognized by the Supreme Court include

a “significant change in employment status, such as hiring, firing, failing to

promote, reassignment, or a decision causing a significant change in benefits.”

Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 749 (1998).

With respect to the second element, Plaintiff has sufficiently alleged that she

suffered an “adverse employment action,” though not with respect to each of the

claimed actions. Plaintiff claims that she experienced the following adverse

actions: (1) eliminating her director-level role and failing to hire her for the newly

restructured director-level position, resulting in her reduction to an associate in the

radiation oncology department; (2) referring her to Pennsylvania’s medical

licensure board, requiring her to miss five weeks of work; (3) subjecting her to

discipline and counseling; and (4) converting her suspension into a termination.

(See Doc. 11, at ¶¶ 25, 30, 83.) The first and fourth claimed actions rise to the

level of an adverse employment action. While it is clear that Plaintiff’s

termination constitutes an adverse employment action, Plaintiff’s removal from her

director-level position and her reduction to an associate also qualify. Plaintiff has

sufficiently alleged that this role alteration, from a director to an associate, was

essentially a demotion because the associate position was lesser-paying, non-

supervisory, less prestigious, and detrimental to her career and earning capacity

internally and externally. (Id. at ¶ 30.) See Budhun, 765 F.3d at 257 (stating that a

complete elimination of the plaintiff’s job responsibilities constituted an adverse

employment action because it “significantly altered [her] duties and status”); Caver

v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005) (stating that the plaintiff’s

“transfer” to a different job constituted an adverse employment action in that it

“significantly altered his duties and status,” “carried much less prestige” than his

former position, and “was essentially a demotion”).

However, the second and third claimed actions taken by Defendant

Greenberg do not rise to the level of an adverse employment action. See, 420 F.3d

at 256 (finding that “ordering [the plaintiff] to see a psychiatrist, without more, did

not adversely affect his status as an employee” and thus did not constitute an

adverse employment action); Sabbrese v. Lowe's Home Centers, Inc., 320 F. Supp.

2d 311, 320 (W.D. Pa. 2004) (finding that an employer’s “written reprimand” did

not constitute an adverse employment action because it did not adversely affect her

status as an employee).

Regarding the third element, 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 [the adverse employment action].”

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012).

Generally, a plaintiff must establish “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.” Budhun,

765 F.3d at 258 (internal quotation omitted). A “bright line rule as to what

constitutes unduly suggestive temporal proximity” does not exist. LeBoon v.

Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007). At the prima

facie stage, courts have found temporal proximity sufficient to suggest a causative

link when several days have elapsed between the protected activity and the adverse

action. See, e.g., Lichtenstein, 691 F.3d at 307 (finding seven days unduly

suggestive); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989) (finding two

days unduly suggestive).

With respect to the third element, Plaintiff has sufficiently alleged a

suggestive temporal proximity between her director-level role elimination and her

use of FMLA leave. However, Plaintiff has failed to allege any sort of causal

connection or temporal proximity between her termination in July of 2019 and her

use of FMLA leave in early 2018. (See Doc. 11.) See Johnson v. Philadelphia

Police Dep't, No. CV 14-1036, 2015 WL 12914147, at *3 (E.D. Pa. July 20,

2015), aff'd, 657 F. App'x 83 (3d Cir. 2016) (“The mere fact that [an]

adverse employment action occurs after a protected activity will ordinarily be

insufficient to satisfy the plaintiff's burden of demonstrating a causal link between

the two events.” (internal quotation and alteration omitted)). On the other hand,

Plaintiff pleads:

After Plaintiff had discussed her anticipated FMLA leave and medical

accommodation needs for many months, Defendants announced (on or

about January 25, 2018) that Plaintiff’s then position of Director,

Radiation Oncology, was being eliminated through a restructuring

effective January 31, 2018. This announcement was approximately a

week before Defendants knew Plaintiff’s February-May 2018 FMLA

leave was to commence.

(Id. at ¶ 25) (emphasis in original). Here, approximately one week elapsing

between the elimination of her director-level position and the start of her FMLA

leave, is in the range of what courts have found to be adequate temporal proximity

at this stage. Thus, Plaintiff has sufficiently alleged a suggestive temporal

proximity between an adverse employment action that she suffered and her use of

FMLA leave. Since Plaintiff has adequately pled each element of a prima facie

case of FMLA retaliation, the court will deny Defendant Greenberg’s motion to

dismiss Plaintiff’s FMLA retaliation claim.

C. Plaintiff has not sufficiently alleged a claim of FMLA interference

against Defendant Greenberg.

The FMLA also provides “a series of prescriptive substantive rights for

eligible employees, often referred to as the ‘entitlement’ or ‘interference’

provisions which set floors for employer conduct.” Jezek v. Medco Health Sols.,

Inc., No. CIV. 10-4410 DRD, 2012 WL 209372, at *5 (D.N.J. Jan. 24, 2012)

(citing Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.2005)). Plaintiff

alleges that Defendant Greenberg interfered with her rights under the FMLA by

subjecting her to a hostile work environment. (See Doc. 19, at 10.) In response,

Defendant Greenberg argues that Plaintiff’s FMLA interference claim fails because

she “does not allege that she was denied any benefit to which she was entitled

under the FMLA.” (See Doc. 18, at 7.)

To establish a prima facie case of FMLA interference, a plaintiff must

demonstrate that:

(1) he or she was an eligible employee under the FMLA; (2) the

defendant was an employer subject to the FMLA’s requirements; (3)

the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice

to the defendant of his or her intention to take FMLA leave; and (5) the

plaintiff was denied benefits to which he or she was entitled under the

FMLA.

Capps, 847 F.3d at 155 (quoting Ross, 755 F.3d at 191–92). Such FMLA benefits

or entitlements are: (1) “a total of twelve workweeks of leave during any twelve-

month period” if the employee has a “serious health condition that makes the

employee unable to perform the functions of the position of such employee,” 29

U.S.C. § 2612(a)(1)(D), and (2) reinstatement to the employee’s former position or

a position with equivalent pay, benefits, and working conditions, 29 U.S.C. §

2614(a)(1). A FMLA interference claim does not require an employee to prove

that his employer acted with discriminatory intent; instead “it is only about

whether the employer provided the employee with the entitlements guaranteed by

the FMLA.” Capps, 847 F.3d at 155. Unlike with a FMLA retaliation claim, an

employer cannot justify FMLA interference by proffering a legitimate business

purpose for such action. Atchison v. Sears, 666 F. Supp. 2d 477, 489 (E.D. Pa.

2009) (quoting Callison, 430 F.3d at 119–20).

Here, Plaintiff has adequately pled the first, second, and third elements. As

previously noted, Plaintiff was an “eligible employee” under the FMLA (see Doc.

11 at ¶¶ 78–80, 82), Defendant Greenberg exercised supervisory authority over her

on behalf of an employer subject to the FMLA (id. at ¶¶ 81, 83–84), and Plaintiff

was entitled to FMLA leave (id. at ¶¶ 22–23, 78-80, 82.) Plaintiff has sufficiently

alleged the fourth element, inasmuch as Plaintiff discussed with Defendants her

intention to take approved FMLA leave in January 2018. (Id. at ¶¶ 22, 24–25.)

She explains that “[i]n the approximate 6 months leading up to [her] February-May

2018 FMLA leave, Plaintiff discussed with Defendants’ management: (1) her

specific health conditions; (2) anticipated medical leave . . . and (3) her anticipated

treatment / therapy regimen.” (Id. at ¶ 24.)

Plaintiff, however, has not sufficiently pled the fifth element of FMLA

interference. Plaintiff states that Defendant Greenberg interfered with her rights

under the FMLA by scrutinizing her, disciplining her, causing her to be removed

from work for five weeks to undergo medical evaluations, excluding her from

meetings, and engaging in abusive treatment weekly. (See Doc. 19, at 10.) While

such behavior may have been inappropriate, these alleged actions fail to

demonstrate that Defendant Greenberg harassed Plaintiff in order to discourage her

from exercising her right to FMLA leave. See Fisher v. Schott, No. CIV.A. 13-

5549 ES, 2014 WL 6474216, at *2, 4 (D.N.J. Nov. 19, 2014) (holding that the

plaintiff had sufficiently pled a claim for FMLA interference by stating “that she

was directly threatened by [the defendant] with being fired, and was repeatedly

harassed and intimidated by [the defendant],” “discouraging, dissuading and

chilling [the plaintiff’s] exercise of her leave rights”); Olschefski v. Red Lion Area

Sch. Dist., No. 1:12-CV-871, 2012 WL 6003620, at *11 (M.D. Pa. Nov. 30, 2012)

(finding that a plaintiff had sufficiently alleged a FMLA interference claim by

stating that the defendant, among other things, “discouraged her from utilizing

FMLA leave by imposing discipline on her”); Reinhold v. Cty. of York, Pa., No.

1:11-CV-605, 2012 WL 4104793, at *12 (M.D. Pa. Aug. 31, 2012) (holding that

plaintiff had sufficiently alleged an FMLA interference claim by stating that the

defendants, among other things, failed to approve reasonable requests for medical

leave, discouraged her from using FMLA leave by disciplining her, and attempted

to coerce her to retire instead of letting her take leave). Moreover, Plaintiff has

failed to allege that Defendant Greenberg denied Plaintiff her right to

reinstatement. Since Plaintiff has failed to plead facts sufficient to establish the

fifth element of a FMLA interference claim, the court will dismiss Plaintiff’s

FMLA interference claim without prejudice.

D. Plaintiff has not sufficiently alleged that Defendant Greenberg

violated her rights under the EPA.

Plaintiff alleges that Defendant Greenberg is responsible in whole or part for

violating her rights under the FLSA’s EPA provision. (See Doc. 11, at 24.) In

response, Defendant Greenberg argues that Plaintiff’s EPA claim fails because she

does not allege facts plausibly showing that Defendant Greenberg was responsible

for any action that may constitute a violation of the EPA. (See Doc. 19, at 9.)

The EPA prohibits employers from compensating male and female

employees with unequal wages for equal work. 29 U.S.C. § 206(d)(1). To

establish a prima facie case of an EPA violation, the plaintiff must demonstrate

“that employees of the opposite sex were paid differently for performing equal

work—work of substantially equal skill, effort and responsibility, under similar

working conditions.” Gumbs v. Delaware Dep't of Labor, 745 F. App'x 457, 459

(3d Cir. 2018). In assessing whether two jobs are equal, courts must determine

“whether the jobs to be compared have a common core of tasks, i.e., whether a

significant portion of the two jobs is identical.” Id. at 459–60 (internal quotation

omitted).

Here, Plaintiff alleges that “[d]espite being of at least equal in qualification,

level of experience, and education,” she “was not paid in the same manner as

similarly situated male colleagues for several years leading up to her termination

from employment.” (See Doc. 11, at ¶¶ 86–87) (emphasis in original). She further

pleads that Defendant Greenberg “exhibited a discriminatory level of

compensation premised upon gender” because her “male colleagues . . . were paid

at higher levels of compensation.” (Id. at ¶ 87.)

Plaintiff has failed to allege that Defendant Greenberg violated the EPA

because her claims of gender-based pay disparities are conclusory and lack

sufficient factual support. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While

legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.”). First, Plaintiff has not alleged any facts about

the identity or number of her male colleagues in either of her positions at

Wyoming Valley Medical Center, i.e., radiation oncology director or associate in

the radiation oncology department, who were receiving different compensation.

See Jones v. Amerihealth Caritas, 95 F. Supp. 3d 807, 813 (E.D. Pa. 2015)

(holding that the plaintiff had pled sufficient facts to sustain a prima facie case

under the EPA by naming “three women that he claim[ed] were paid more than

him for doing similar work” and stating that “these three women were less

qualified for the position with the same or less level of seniority”). Second,

considering that Plaintiff held different positions at Wyoming Valley Medical

Center, it is unclear what tasks she performed for which Defendant Greenberg

compensated her male colleagues at higher levels. Thus, the court will dismiss

without prejudice Plaintiff’s EPA violation claim.

E. Plaintiff has not sufficiently alleged a claim of intentional infliction of

emotional distress against Defendant Greenberg.

Plaintiff alleges that Defendant Greenberg is liable for intentional infliction

of emotional distress. (See Doc. 11, at 25.) In response, Defendant Greenberg

argues that his referral of Plaintiff to Pennsylvania’s medical licensing board “is

insufficient as a matter of law to give rise to liability for intentional infliction of

emotional distress.” (See Doc. 18, at 12.) 5

Although the Pennsylvania Supreme Court has not recognized a cause of

action for intentional infliction of emotional distress, the Pennsylvania Superior

Court has recognized this cause of action. Reedy v. Evanson, 615 F.3d 197, 231

(3d Cir. 2010); see also Capresecco v. Jenkintown Borough, 261 F. Supp. 2d 319,

323 (E.D. Pa. 2003) (“Pennsylvania courts have ‘signaled their acceptance of this

evolving tort,’ and that it may be applied as part of Pennsylvania common law.”

(quoting Williams v. Guzzardi, 875 F.2d 46, 50 (3d Cir. 1989)). To prevail on an

intentional infliction of emotional distress claim, the plaintiff must “at the least,

demonstrate intentional outrageous or extreme conduct by the defendant, which

causes severe emotional distress to the plaintiff” and results in some “some type of

[] physical harm.” Reedy, 615 F.3d at 231; see also Corbett v. Morgenstern, 934 F.

5 As stated above, Defendant Greenberg is incorrect in arguing that the only action attributed to

him in Plaintiff’s complaint relates to his referral of Plaintiff to Pennsylvania’s medical licensure

board. Any action in the complaint that is attributed to “Defendants” is attributed to Defendant

Greenberg. (See Doc. 11, at ¶ 1.)

Supp. 680, 684–85 (E.D. Pa. 1996) (finding that symptoms of severe depression,

nightmares, stress, and anxiety, requiring psychological treatment, and ongoing

mental, physical, and emotional harm sufficiently state physical injury).

Pennsylvania courts have found liability on intentional infliction of emotional

distress claims only “where the conduct has been so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” Field v.

Phila. Elec. Co., 565 A.2d 1170, 1184 (Pa. Super. Ct. 1989). With respect to the

workplace, the Third Circuit has stated that it is “extremely rare to find conduct in

the employment context that will rise to the level of outrageousness necessary to

provide a basis for recovery for the tort of intentional infliction of emotional

distress.” Clark v. Twp. of Falls, 890 F.2d 611, 623 (3d Cir. 1989); see also

Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990) (noting that

generally, in the employment context, “sexual harassment alone does not rise to the

level of outrageousness necessary to make out a cause of action for intentional

infliction of emotional distress.”).

Here, Plaintiff alleges that Defendant Greenberg is liable for intentional

infliction of emotional distress for a variety of reasons. Plaintiff pleads that

Defendant Greenberg discriminated and retaliated against her by (1) eliminating

her position as radiation oncology director; (2) failing to hire her for the newly

restructured director-level position resulting in her reduction to an associate; (3)

suspending her; and (4) terminating her.6 (See Doc. 11, at ¶¶ 31, 40, 63.)

Additionally, Plaintiff contends that Defendant Greenberg failed to remedy the

hostile work environment that she experienced upon returning to work after her

FMLA leave. (Id. at ¶ 35.) According to Plaintiff, such hostility included, but was

not limited to, repeated admonishment, scrutiny, ostracism, derogatory behavior,

unfair treatment regarding the fair use of company policies, blanket denial of very

reasonable medical accommodations, and negative comments concerning her

health. (Id. at ¶¶ 33–34, 35.) Plaintiff further alleges that Defendant Greenberg’s

behavior was “intentional and/or reckless,” and “so outrageous it surpassed all

bounds of decency in civilized society.” (Id. at ¶ 93.) Defendant Greenberg’s

conduct has caused her to suffer “severe emotional distress” and “medical injuries

by wrongful referral to medical evaluations through significant side effects.” (Id.)

6 In the complaint, Plaintiff also provides Defendant Greenberg’s referral of her to

Pennsylvania’s medical licensure board as factual support for her intentional infliction of

emotional distress claim. (See Doc. 11, at ¶¶ 40-43.) The Superior Court of Pennsylvania has

held “that public policy compels affording the absolute privilege to individuals that report

misconduct to the Board of Medicine, regardless of their motives for doing so.” Greenberg v.

McGraw, 161 A.3d 976, 988 (2017). Thus, the absolute privilege extends “to statements made to

the Board of Medicine for the purpose of initiating judicial or quasi-judicial proceedings against

a licensee, even if such statements are allegedly false,” as an incentive for individuals to speak

freely when initiating such proceedings. (Id. at 988–89.) Because referrals to Pennsylvania’s

medical licensure board receive the absolute privilege, they cannot form the basis of intentional

infliction of emotional distress claims. (Id. at 989.) In Plaintiff’s brief in opposition, she

concedes that Defendant Greenberg’s referral cannot form the basis of her intentional inflection

of emotion distress claim. (See Doc. 19, at 13–14.) Therefore, the court has not considered the

referral as a potential basis for her intentional infliction of emotional distress claim.

Plaintiff has not sufficiently alleged an intentional infliction of emotional

distress claim against Defendant Greenberg. Plaintiff has catalogued a substantial

amount of behavior attributable to Defendant Greenberg that, if proven true, would

certainly be improper. However, none of the alleged actions, in isolation or

together, rise to the level of depravity that has traditionally formed the basis of

successful intentional infliction of emotional distress claims. See, e.g., Papieves v.

Lawrence, 263 A.2d 118, 119 (Pa. 1970) (finding conduct outrageous where the

defendant struck the plaintiff’s son with his car, killed him, and buried his body in

a field where he was discovered months later); Field, 565 A.2d at 1183–84

(finding conduct outrageous where the defendant purposefully vented highly

radioactive steam on the plaintiff and attempted to hide overexposure to radiation);

Banyas v. Lower Bucks Hospital, 437 A.2d 1236 (Pa. Super. Ct. 1981) (finding

conduct outrageous where the defendant framed the plaintiff for murder by

preparing false records).

The conduct that Plaintiff has alleged concerning workplace misconduct is

more similar to the behavior that Pennsylvania courts have considered not

sufficiently outrageous to constitute an intentional infliction of emotional distress

claim. See, e.g., Capresecco v. Jenkintown Borough, 261 F. Supp. 2d 319, 323

(E.D. Pa. 2003) (“[W]hile loss of employment is unfortunate and unquestionably

causes hardship, often severe, it is a common event and cannot provide a basis for

recovery for [intentional infliction of emotional distress].”); Cox v. Keystone

Carbon Co., 861 F.2d 390, 395–96 (3d Cir.1988) (finding conduct not outrageous

where employer dismissed the plaintiff with an improper motive, “endangering his

chances of collecting medical and disability benefits” and “jeopardizing his

chances to obtain alternate employment”); Duffy v. SEPTA, No. Civ. A. 94–4260,

1995 WL 299032, at *4–5 (E.D. Pa. May 12, 1995) (finding conduct not

outrageous where employer denied the plaintiff various assignments, removed her

from her work team, and failed to invite her to certain training-critique sessions);

Alexander v. Hargrove, No. Civ.93–5510, 1994 WL 313059, at *6–7 (E.D. Pa.

June 28, 1994) (finding conduct not outrageous where employer “coerced [the

plaintiff's] termination while knowing that this would attach a stigma of

wrongdoing to him that would make him unemployable and destroy his career,

family and health”).

Moreover, Plaintiff’s allegations of “physical harm” are conclusory.

Plaintiff states that she suffered “severe emotional distress” and “medical injuries

by wrongful referral to medical evaluations through significant side effects.” (See

Doc. 11, at ¶ 93.) Nowhere in the complaint, however, does Plaintiff provide

factual support for these assertions by stating how her already extensive list of

health issues worsened or new symptoms of a physical injury, harm, or illness

appeared as a result of Defendant Greenberg’s conduct. See James v. City of

Wilkes-Barre, No. 3:10-CV-1534, 2011 WL 3568900, at *8 (M.D. Pa. June 17,

2011) (stating that “it is not enough to merely allege severe distress” to sufficiently

plead physical injury in connection with an intentional infliction of emotional

distress claim). Accordingly, the court will dismiss without prejudice Plaintiff’s

intentional infliction of emotional distress claim.

F. Plaintiff will be granted leave to amend.

In her brief in opposition to the motion to dismiss, Plaintiff requests that she

be given leave to amend in so far as her complaint is found deficient in any respect.

(See Doc. 18, at 15). Third Circuit “precedent supports the notion that in civil

rights cases district courts must offer amendment - irrespective of whether it is

requested - when dismissing a case for failure to state a claim unless doing so

would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete

Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).

Here, the court will grant Plaintiff’s request because it is possible that she

could present a viable FMLA interference claim, EPA claim, and/or IIED claim

against Defendant Greenberg. To the extent that Plaintiff wishes to amend her

complaint with regard to any of these three causes of action, she will be given 14

days in which to do so.

CONCLUSION

For the foregoing reasons, the court will grant in part and deny in part

Defendant Greenberg’s motion to dismiss. Defendant Greenberg’s motion to

dismiss Plaintiff’s FMLA retaliation claim will be denied. Defendant Greenberg’s

motion to dismiss Plaintiff’s FMLA interference claim, EPA claim, and IIED claim

will be granted, these claims will be dismissed without prejudice, and Plaintiff will

be given leave to amend.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: June 22, 2020