# Fritz v. Allied Services Foundation d/b/a Allied Services Integrated Health System

> District Court, M.D. Pennsylvania · February 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10414391

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 28, 2024
- **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/10414391

## How later opinions describe it (automated extraction)

- discussing 29 C.F.R. § 825.302(c)

## Opinion text

| IN THE UNITED STATES DISTRICT COURT
| FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
| JACKIE FRITZ, : No. 3:21cv1996
| Plaintiff
| : (Judge Munley)
v. :
| ALLIED SERVICES FOUNDATION _ :
| d/b/a ALLIED SERVICES
| INTEGRATED HEALTH SYSTEM :
| Defendant
SSISEILDEIDNIDI LDL □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
MEMORANDUM
| Before the court is Defendant Allied Services Foundation d/b/a Allied
| Services Integrated Health System's motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) in this employment discrimination matter. (Doc. 10).
| The motion is fully briefed and ripe for disposition."
Background
| Plaintiff Jackie Fritz brings this action against her former employer pursuan
to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101, et seq., and the

| Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2611. In the operative
amended complaint, plaintiff alleges that she worked for defendant for twenty-
| one (21) years as a personal care attendant at an assisted living facility. (Doc. 10
|
| ' The matter was transferred to the undersigned from the Honorable Robert D. Mariani on
| November 7, 2023.

24-25). She avers that defendant discriminated against her and harassed het
| based on being associated with her son, an individual with disabilities. (Id. {] 26)
According to the amended complaint, plaintiffs son experiences severe anxiety
and symptoms from attention deficit hyperactivity disorder such that he always
| requires supervision. (Id. J 30-32). Furthermore, plaintiff avers that defendant
prevented her from using approved FMLA leave and retaliated against her for
attempting to use that leave. (Id. {J 26).
| According to the amended complaint, plaintiff sought and received
| intermittent leave pursuant to the FMLA to care for her son beginning in October
| 2019. (id. 33). When plaintiff handed in paperwork, however, the individual
receiving those documents “made a face indicating their clear annoyance
regarding the fact that [plaintiff] had a son with disabilities and that she had
sought FMLA to care for him.” (id. 36). Moreover, plaintiff avers that defendant
| consistently rejected her attempts to use FMLA leave to care for her son, and
| she only used one day of leave from the time of approval until the end of her
employment. (Id. 41). According to plaintiff, her supervisor also insisted that
| plaintiff work past 7:00 PM despite explanations that her son could not be left
| unsupervised and did not have supervision after that time. (Id. ] 38). When the
supervisor informed plaintiff that she had to stay late, that supervisor “would
! smirk when telling her, indicating that [the supervisor] knew it would be a problen
|

| for [plaintiff], but [the supervisor] compelled her to work late anyway.” (Id. {] 39).
On two-to-three occasions, plaintiff alleges that she requested to use FMLA
leave, but defendant advised her that she could not use that leave. (Id. {J 42).
On July 11, 2020, plaintiff used FMLA leave for the first time. (Id. J] 43).
Her supervisor allegedly sent her a text message that same day stating, □□ know
this is the first time you used an FMLA for him[,]” meaning her son. (Id. J] 44).
| The supervisor further indicated that “since it had been just the one time, then it
| ‘was okay.’” (Id. 45). Plaintiff alleges that the supervisor purposely made her
feel guilty for taking FMLA leave and compelled her to make up the day by
| working on her day off. (Id. ] 47).
Additionally, plaintiff alleges that when she sought to exercise leave, her
supervisor would ask “at the last minute” to stay late or work on her days off. (Id.
50-51). Per plaintiff, her employer purposefully made these requests when
plaintiff could not work, “as she was only entitled to leave for her usual shift hours
| and could not obtain additional FMLA leave time so late.” (Id. J 52). Plaintiff

avers that defendant asked her at least three times per week to stay late,
substantially more than other employees. (Id. J] 53).
According to plaintiff, she complained to defendant's human resources
department (“HR”) about being restricted from exercising FMLA leave. (Id. JJ 54).
Plaintiff alleges that she met with an administrator, who told plaintiff that she

could go home, care for her son, and return to work, which plaintiff alleges did
not resolve the issues. (Id. J] 55-56). After this complaint to HR, defendant
continued to insist that plaintiff work during hours when her son would be without
supervision. (Id. J] 57).
Additionally, against this backdrop, plaintiff alleges that her supervisor
would yell at her over minor issues. (Id. J 60). Per plaintiff, she would receive
text messages at home asking why she did not do a task or why she did not do a
task a certain way. (id. 61). Plaintiff alleges that defendant constantly made
her feel like she performed her job poorly, and she alleges that she began each
day with “trepidation, fear and anxiety, knowing that [djefendant would torment
her in some way.” (Id. 62). Such acts culminated, per plaintiff, in her
constructive discharge on June 23, 2020 when she felt no other choice but to
resign. (Id. J 26, 65)
Based on the foregoing facts, plaintiffs amended complaint alleges
| unlawful discrimination, harassment, and retaliation under the ADA. Plaintiff also
alleges defendant interfered with her attempts to use approved leave under the
| FMLA and retaliated against her for requesting and taking leave. Defendant
responded with the instant motion to dismiss (Doc. 10), asserting that: 1)
plaintiffs ADA association claim fails as a matter of law; 2) plaintiff failed to allege
sufficient facts to support an FMLA interference claim; and 3) plaintiff cannot

| State a claim for retaliation under either of these statutes. Having been fully
| briefed, this matter is ripe for disposition.
Jurisdiction
Based on the alleged violations of federal law, this court has jurisdiction
| pursuant to 28 U.S.C. § 1331. (“The district courts shall have original jurisdiction
| of all civil actions arising under the Constitution, laws, or treaties of the United
| States.”). Additionally, the court has jurisdiction under 28 U.S.C. § 1343(a)(3),
which confers jurisdiction of any action commenced to redress the deprivation of

any right, privilege, or immunity secured by federal law providing for the equal
rights of citizens.
Legal Standard
Defendant filed the instant motion to dismiss pursuant to Federal Rule of
| Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted. The court tests the sufficiency of the complaint’s allegations when
| considering a Rule 12(b)(6) motion.
| “To survive a motion to dismiss, a complaint must contain sufficient factual
| matter, accepted as true, to ‘state a claim to relief that is plausible on its face[,]’ ”
| and a claim has facial plausibility when factual content is pled that allows the
court to draw the reasonable inference that the defendant is liable for the
| misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

| Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly at 555).
Analysis
| Defendant moves to dismiss plaintiff's association and retaliation claims
under the ADA as well as plaintiff's claims for interference and retaliation under
the FMLA. The court will address plaintiffs ADA claims first before moving on to
the FMLA claims.
1. Plaintiff's ADA Association Discrimination Claim
| The ADA provides that “[n]o covered entity shall discriminate against a
| qualified individual on the basis of disability in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). The term “discriminate against a qualified
individual on the basis of disability” includes “excluding or otherwise denying
| equal jobs or benefits to a qualified individual because of the known disability of
| an individual with whom the qualified individual is known to have a relationship o1
association.” 42 U.S.C. § 12112(b)(4). Claims based on this provision are
referred to as ADA association or ADA association discrimination claims. See
Erdman v. Nationwide Ins. Co., 582 F.3d 500, 504 (3d Cir. 2009); Barthalow v.

David H. Martin Excavating, Inc., No. 1:05-CV-2593, 2007 WL 2207897, at *3
(M.D. Pa. July 30, 2007)(Rambo, J).
| The ADA association provision, 42 U.S.C. § 12112(b)(4), however, “does
| not obligate employers to accommodate the schedule of an employee with a
disabled relative[,]’ like the reasonable accommodations provisions set forth at
42 U.S.C. § 12112(b)(5)(A)-(B). See Erdman, 582 F.3d at 510 (“Although refusa

| to ‘mak[e] reasonable accommodations’ may constitute illegal discrimination
| against a disabled employee, 42 U.S.C. § 12112(b)(5), the plain language of the
ADA indicates that the accommodation requirement does not extend to relatives
of the disabled.”)(emphasis in original)(further citations omitted).

| Furthermore, to establish a prima facie case of association discrimination, «
plaintiff must prove the following:

| (1) the plaintiff was “qualified” for the job at the time of the
| adverse employment action;
(2) the plaintiff was subjected to adverse employment
| action;
| (3) the plaintiff was known by her employer at the time to
| have a relative or associate with a disability; [and]
adverse employment action occurred under
| circumstances raising a reasonable inference that the
| disability of the relative or associate was a determining
factor in the employer's decision.

| Dodson v. Coatesville Hosp. Corp., 773 F. App'x 78, 83, n. 8 (3d Cir. 2019)(citing
| Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1085 (10th Cir. 1997)(further
|

| citation omitted); see also Erdman v. Nationwide Ins. Co., 621 F. Supp. 2d 230,
| 234 (M.D. Pa. 2007), affd in part, vacated in part, 582 F.3d 500 (3d Cir.
| 2009)(citations omitted).
In the instant motion, defendant argues that plaintiff fails to properly allege
an adverse employment action. Defendant also argues that plaintiff is precluded
from recovery as a matter of law because her claim is premised on defendant not
providing her with scheduling accommodations. The court discusses each of
these arguments in turn.

a. Adverse Employment Action
Defendant argues that plaintiff has not adequately alleged constructive
discharge and thus she experienced no adverse employment action. The court
| disagrees.
Constructive discharge equates to an employee’s reasonable decision to
resign because of unendurable working conditions and “is assimilated to formal
discharge for remedial purposes.” Pennsylvania State Police v. Suders, 542 U.S
129, 141 (2004). The inquiry into constructive discharge is objective: “whether
the conduct complained of would have the foreseeable result that working
conditions would be so unpleasant or difficult that a reasonable person in the
employee’s shoes would resign.” Clowes v. Allegheny Valley Hosp., 991 F.2d
7 1159, 1161 (3d Cir. 1993)(citations omitted and internal quotation marks
removed). Factors relevant to this issue are whether the employer: “(1)

| threatened the employee with discharge or urged or suggested that she resign or

| retire, (2) demoted her, (3) reduced her pay or benefits, (4) involuntarily
transferred her to a less desirable position, (5) altered her job responsibilities, or
(6) gave unsatisfactory job evaluations.” Colwell v. Rite Aid Corp., 602 F.3d 495,
| 503 (3d Cir. 2010)(citing Clowes, 991 F.2d at 1161)(internal quotation marks and
brackets removed). The absence of these factors is not necessarily dispositive.
| Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 168 (3d Cir. 2001). “[T]he law[,]”
| however, “does not permit an employee's subjective perceptions to govern a
claim of constructive discharge.” Clowes, 991 F.2d at 1162 (quoting Gray v. York
| Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir.1992)(further citation omitted).
| Defendant argues that plaintiff cannot meet the “unendurable working
conditions” threshold based on the facts pled. Furthermore, in arguing for
dismissal, defendant hones in on plaintiff's subjective feelings about her work

| conditions as alleged. Understanding that the factual record is not developed,
defendant’s argument is ultimately not persuasive. See Stremple v. Nicholson,
289 F. App'x 571, 574 (3d Cir. 2008)(citing Levendos v. Stern Entm't, Inc., 860
F.2d 1227, 1230 (3d Cir.1988)(“Constructive discharge is a heavily fact-driven
| determination.”).
First, an employee filing an employment discrimination lawsuit may only be
| able to aver facial expressions, body language, and their intuition to support

allegations before any substantive discovery occurs. (See Doc. 9 at If] 38-39).
Second, plaintiffs amended complaint pleads both her subjective perceptions of
| defendant’s conduct and facts supporting an objective evaluation of her

| circumstances under a reasonable person standard. For example, while plaintiff
alleges that her supervisor made her feel guilty for caring for her son, plaintiff
also avers that the supervisor yelled at her during the workday about “minor
issues[,]” and texted plaintiff during off-hours with messages critical of plaintiff's
| work. (Id. at 47, 60-61). This alleged blurring of work and life boundaries
caused plaintiff, per her allegations, to start each day with trepidation, fear, and
anxiety with the belief that defendant’s agents would torment her in some way.
(Id. at 7 62). Accordingly, plaintiff's constructive discharge allegations are
plausible on the facts alleged, and the motion to dismiss based on these grounds
will be denied.
b. Reasonable Inferences that the Association Was a Determining
| Factor
Defendant also argues that plaintiff's amended complaint fails to set forth
the fourth element of a prima facie ADA association claim, that is, the adverse

employment action occurred under circumstances raising a reasonable inference
that the disability of the relative was a determining factor in the employer's

| decision. Focusing on this element, the ADA statute “clearly refers to adverse
employment actions motivated by ‘the known disability of an individual’ with
| 10

| whom an employee associates, as opposed to actions occasioned by the
| association.” Erdman, 582 F.3d at 510. “Under the association provision, there

| is a material distinction between firing an employee because of a relative's
disability and firing an employee because of the need to take time off to care for
the relative.” Id. Consequently, a plaintiff must demonstrate that the relative’s
disability motivated the employer rather than the plaintiff's stated intention to miss
work. See id. (citations omitted). In light of this discussion in Erdman, Defendant
argues that plaintiff's claim fails as a matter of law because the amended
| complaint only asserts an association claim based on defendant's failure to
accommodate plaintiff's scheduling requests so she could care for her son. (Doc.
14 at 7).
Erdman, however, is not dispositive at this stage under the facts pled.2 As
| summarized, “[a]n employee would be protected by the association provision if
she were fired because her employer feared that she might miss work to care for

| a disabled relative even though she had not taken or requested time off.”
Erdman, 582 F.3d at 510-11 (citations omitted)(emphasis in original).

| Additionally, “a decision motivated by unfounded stereotypes or assumptions

2 Additionally, Erdman affirmed summary judgment where the record only revealed that an
| employer fired a plaintiff after she announced her intention to take FMLA leave to care for her
| child’s disability and not that her employer was motivated to terminate plaintiff based on her
| association with her disabled child. 582 F.3d at 511. That full record is not available here on a
! motion to dismiss.
| 11

| about the need to care for a disabled person may be fairly construed as ‘because

| of the ... disability’ itself[,]” subjecting an employer to liability. Id. at 511 (3d Cir.
| 2009)(citing 42 U.S.C. § 12112(b)(4), 29 C.F.R. § 1630.8, Appendix). Like
constructive discharge, association discrimination claims are context-driven and
“the standard is highly sensitive to the particular facts of a case.” Pollere v. USIG
| Pennsylvania, Inc., 136 F. Supp. 3d 680, 685 (E.D. Pa. 2015)(collecting cases).
In this matter, plaintiff pleads enough facts to state a plausible claim for
relief under the ADA association provision when the complaint is read as a
whole. For example, plaintiff's amended complaint avers that defendant
expressed displeasure, frustration, and annoyance with the fact that she had a
child with disabilities. (Doc. 9 at J] 35-36). Defendant also asked plaintiff, more
often than others and often last minute, to stay late or work overtime and work or
scheduled days off knowing of plaintiff's association with a child with disabilities.
(Id. at JJ] 38, 44-45, 51, 53). As noted above, plaintiff's supervisor would
allegedly make these requests with a smirk and in a manner that made plaintiff
feel guilty. (Id. at J] 38, 47). Plaintiff also alleges that her supervisor became
critical of her work and would text plaintiff during off-hours with these criticisms.
Per plaintiff, defendant wanted plaintiff to work more often than other employees
and made plaintiffs work-life intolerable because of plaintiff's association with he
| son. (Id. at Jf] 59-61). These allegations raise reasonable inferences that

12

| plaintiff's son’s disability was a determining factor in defendant’s acts. Thus,
defendant’s motion to dismiss plaintiffs ADA association discrimination claim will
be denied.
2. Plaintiff's ADA Retaliation Claim
Defendant also moves to dismiss plaintiffs claim for retaliation under the
ADA based on her association with her son. The ADA’s anti-retaliation provision

| provides, in relevant part, “[n]o person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by” the
JADA. 42 U.S.C. § 12203(a).
| To establish a prima facie case of retaliation, a plaintiff must prove: “(1)
protected employee activity; (2) adverse action by the employer either after or
contemporaneous with the employee's protected activity; and (3) a causal
| connection between the employee's protected activity and the employer's
adverse action.” Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir.
2002)(citation omitted).
| Regarding protected activity, it is unlawful for an employer to retaliate

| against an employee based upon the employee's opposition to anything that is
unlawful under the ADA. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183,
188 (3d Cir. 2003). Furthermore, “[t]he Third Circuit has established that
‘protesting what an employee believes in good faith to be a discriminatory
| 13

| practice is clearly protected conduct.’” Tyson v. Access Servs., 158 F. Supp. 3d
309, 315 (E.D. Pa. 2016)(quoting Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1085 (3d Cir. 1996)).
Although the ADA association provision does not obligate employers to
accommodate the schedule of an employee with a disabled relative, see Erdman
582 F.3d at 510, that same provision makes it unlawful for employers to exclude
| or otherwise deny equal benefits to a qualified individual because of her known
association or relationship with an individual with a disability, 42 U.S.C. §
12112(b)(4). Per the amended complaint, plaintiff explained to her employer that
she had a son with disabilities that required round-the-clock supervision. (Doc. 9
at J§ 34, 38). After receiving treatment she alleges was unfair or unequal
because her son has disabilities, plaintiff made a complaint to defendant’s HR
department. (Id. at J] 39, 50-56). Subsequently, she alleges that the unequal
treatment continued and that her supervisor contacted her about work issues by
text while plaintiff cared for her son at home. (Id. at ff] 57, 61). In review,
plaintiff's amended complaint sufficiently avers protected activity. The court also
concludes, as noted above, that plaintiff alleged sufficient facts to plausibly state
| her constructive discharge. Finally, plaintiff's averments provide enough factual
| basis for a causal connection between the protected activity and her constructive
| 14

| discharge. Thus, plaintiffs motion to dismiss plaintiff's ADA retaliation claim will
be denied.
3. Plaintiff's FMLA Interference Claim
Turning next to plaintiffs FMLA claims, defendant argues that she has not
alleged sufficient facts to support recovery under its provisions. The court will first
| address plaintiffs claim for FMLA interference before considering her retaliation
| claim.
The FMLA entitles employees to take reasonable leave for the care of a
child with a serious medical condition, specifically a “total of 12 workweeks of
leave during any 12-month period[.}” 29 U.S.C. §§ 2601(b)(2), 2612(a)(1)(C).
| Leave taken pursuant to Section 2612(a)(1)(C), “may be taken intermittently or

on a reduced leave schedule when medically necessary[,]” subject to other
provisions regarding alternative positions, duties of the employee, and
certification from a health care provider. 29 U.S.C. § 2612(b)(1). Further, the

| FMLA makes it unlawful “for any employer to interfere with, restrain, or deny the
| exercise of or the attempt to exercise, any right” provided by the statute. 29
U.S.C. § 2615. Interference with an employee's rights includes refusing to
authorize FLMA leave and discouraging employes from using such leave. See
| Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 142 (3d Cir.
2004)(citing 29 C.F.R. § 825.220(b)).

15

To make a claim of interference under the FMLA, a plaintiff must establish:
| (1) 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 v. Mondelez Glob., LLC, 847 F.3d 144, 155 (3d Cir. 2017) (citing Ross v.
! Gilhuly, 755 F.3d 185, 191 (3d Cir. 2014))(further citation omitted). Put more
succinctly, a plaintiff asserting an interference claim under the FMLA need only
| show that “[s]he was entitled to benefits under the FMLA and that [s]he was
denied them.” Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005).
| Additionally, “a plaintiff may have an actionable FMLA interference claim where
the employer takes any action that could chill desire to take FMLA leave, even
| when the employee takes the leave.” Kimes v. Univ. of Scranton, 126 F. Supp.
3d 477, 501 (M.D. Pa. 2015)(citing Grosso v. Fed. Exp. Corp., 467 F.Supp.2d
463 (E.D. Pa. 2006), Sherrod v. Phila. Gas Works, 57 Fed.Appx. 68, 73 n. 6
| (3d Cir. 2003)) (internal quotation marks omitted).
Defendant moves to dismiss plaintiff's interference claim arguing that
| plaintiff did not aver whether she gave proper notice before seeking to exercise
FMLA leave. Defendant’s assertions about proper notice fall short on a motion to
| 16

| dismiss, as defendant seeks to have this court rule on a defense before the
complaint is answered.
| “{I]n order to invoke FMLA protection, an employee must first notify her
employer of her need for leave.” Scott v. UPMC, 435 F.App'x 104, 107 (3d Cir.
2011). “Proper notice” requires a fact-intensive inquiry into the circumstances of
| the plaintiff's requests based upon the language used in regulations promulgated
| by the Department of Labor. See 29 C.F.R. § 825.302(a)(“Whether FMLA leave
is to be continuous or is to be taken intermittently or on a reduced schedule
basis, notice need only be given one time, but the employee shall advise the
employer as soon as practicable if dates of scheduled leave change or are
extended, or were initially unknown.”); 29 C.F.R. § 825.302(b)(“ In all cases,
however, the determination of when an employee could practicably provide
notice must take into account the individual facts and circumstances.”); see also
29 C.F.R. § 825.304(c),(d).
| Additionally, as for the form of notice, “[s]imple verbal notification is
sufficient” and an employee “need not use any magic words.” Sarnowski v. Air
Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007)(discussing 29 C.F.R. §
825.302(c)). “The critical question is how the information conveyed to the
employer is reasonably interpreted. An employee who does not cite to the FMLA

or provide the exact dates or duration of the leave requested nonetheless may

17

| have provided his employer with reasonably adequate information under the
circumstances to understand that the employee seeks leave under the FMLA.”
ld
Plaintiffs amended complaint sets forth that defendant permitted her to use
| only one day of FMLA leave between October 2019 and June 2020 as defendant
“consistently rejected [plaintiff's] other attempts to use FMLA leave to care for her
| son.” (Doc. 9 at []} 41, 43). Moreover, plaintiff alleges she requested leave on
two-to-three occasions but defendant told her that she could not do so. (id. at J
42). Plaintiff also specifically pleads receipt of a text message from her
supervisor about using FMLA leave on the only day she used leave to care for
her son, June 11, 2020. (Id. at J 44). Per plaintiff, that supervisor recognized
plaintiff's use of that one day of FMLA leave and advised plaintiff that she needed
to make up the time used for FMLA leave. These averments are sufficient to
state a claim for FMLA interference and any questions about proper or improper

| notice cannot be resolved without a factual record. Thus, defendant’s motion to
dismiss plaintiffs FMLA interference claim will be denied.
4. Plaintiff's FMLA Retaliation Claim
Finally, defendant moves to dismiss plaintiff's FMLA retaliation claim. FMLA
retaliation claims require proof of the employer's retaliatory intent and are

| 18

assessed through the familiar McDonnell Douglas® burden shifting framework.
| Capps, 847 F.3d at 151 (citations omitted). To prevail on an FMLA retaliation
claim, the plaintiff must prove that (1) she invoked her right to FMLA-qualifying
leave, (2) she suffered an adverse employment decision, and (3) the adverse
action was causally related to her invocation of rights. Id. at 151, n. 6 (citations
omitted); Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d
Cir. 2012)(citing Erdman, 582 F.3d at 508-09).
Defendant likewise challenges whether plaintiff sufficiently and plausibly
sets forth constructive discharge as an adverse employment decision in her
| amended complaint. For the reasons set forth above in section 1a and section 2
above, plaintiff's constructive discharge allegations are plausible. Thus,
defendant's motion to dismiss plaintiff's FMLA retaliation claim will be denied.
Conclusion
For the reasons set forth above, defendant’s motion to dismiss (Doc. 10)
will be denied. An appropriate order follows.

3 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
| 19

AIAG
| Date: | hail a
| | JUDGE/JULIA K. MUNLEY
| | United States ourt

| 20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414391. Public record. Not legal advice.