Hess v. Township of Saint Thomas

| IN THE UNITED STATES DISTRICT COURT

| FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

| DALE A. HESS, : No. 1:23¢v544

| Plaintiff :

: (Judge Munley)

| V. :

| TOWNSHIP OF SAINT THOMAS; :

| SAINT THOMAS TOWNSHIP :

| MUNICIPAL AUTHORITY; TRAVIS :

| AMSLEY; LAURA MEYERS; LARRY =:

| TRUETT; ANDREW HOLLENSHEAD; :

|RYAN WALLS; BOBBY BARD; and _:

| CORY STINE, :

Defendants :

| □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ ELLE

| MEMORANDUM

| Before the court is a motion to dismiss filed by Defendants Saint Thomas

| Township Municipal Authority, Travis Amsley, Laura Meyers, Larry Truett,

| Andrew Hollenshead, Ryan Walls, Bobby Bard, and Cory Stine.’ (Doc. 22). This

| matter is fully briefed and ripe for disposition.”

| Background

Plaintiff Dale A. Hess filed this action pursuant to the Americans with

| Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), the Rehabilitation Act, 29

po

Defendants Amsley, Meyers, Hollenshead, Walls, Bard, and Stine are hereinafter referred to

| as the individual defendants.

| 2 The Honorable Jennifer P. Wilson transferred this matter to the undersigned on November 7,

| 2023.

| U.S.C. § 790, et seq. (“RA”), the Family and Medical Leave Act of 1993, 29

U.S.C. § 2601, et seg. (“FMLA”), and the Pennsylvania Human Relations Act, 43

| Pa. STAT. § 951, et seq. (“PHRA”). Pursuant to the amended complaint, Plaintiff

| alleges that he is a former employee of the Saint Thomas Township Municipal

Authority (“Authority”), and the Township of Saint Thomas (“Township”).° (Doc.

20 99 4, 27-29, 31, 33-34, 37-38, 41, 45, 46-47). The Authority and Township

employed plaintiff as a plant operator/supervisor from April 2006 until March 29,

12021. (Id. J] 29). The above-named individual defendants are alleged to be

members of the Authority board of directors.* (Id. J] 4-17).

Plaintiff suffers from several medical conditions limiting his activities of dail;

living, including diabetes and chronic sinus infections. (Id. f] 24). As a result of

these conditions, plaintiff experiences exhaustion, shortness of breath, sweating,

and blurred vision. (Id. ] 25). When plaintiff experiences these symptoms, he

must avoid operating heavy equipment or motor vehicles until his blood sugar

levels stabilize and these symptoms limit his mobility. (Id. J 26). Plaintiff advised

the Authority and Township of his need for accommodations when he was hired.

| (Id. J 31).

| 3 These brief background facts are derived from plaintiffs amended complaint. At this stage of

| the proceedings, the court must accept all factual allegations in the complaint as true. Phillips

| v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The court makes no determination,

| however, as to the ultimate veracity of these assertions.

| In 2019, the Authority and Township began to target plaintiff with “frivolous

and unjustified discipline.” (Id. 33). Plaintiff received a disciplinary letter for

excessive time off on June 28, 2019. (Id. J 34). On November 11, 2019, plaintiff

received a disciplinary letter for consuming alcohol while on-call. (Id. {| 33).

Plaintiff contends the Township and Authority had no good faith basis to believe

he consumed alcohol. (Id.)

Plaintiff was placed on a performance review in 2020. (Id. {| 40). After the

performance review period, plaintiff received a letter placing him on

administrative leave without pay from March 11, 2021 through March 26, 20271.

(Id. 43). The letter advised plaintiff that there would be a meeting to discuss his

employment on March 26, 2021 at 4:30 PM, but the letter did not specify a

location. (Id.) Plaintiff asked through counsel for clarification of the meeting

agenda and the location of the meeting, but the Authority and Township did not

respond to the requests. (Id. 7] 44-45). When plaintiff did not report to the

| unknown location, the Authority and Township terminated his employment on

| March 29, 2021. (Id. J] 46).

Plaintiff also alleges that he timely filed a charge of disability discrimination

| with the Pennsylvania Human Relations Commission (“PHRC’”). (Id. J] 20-21).

Plaintiff alleges that the charge referred to retaliation he received at the hands of

| the Authority and Township after seeking accommodation and the aiding and

|

| abetting of such discrimination by the individual defendants as board members □□

| the Authority. (Id. J 20).

Plaintiff filed an amended complaint on July 17, 2023. (Doc. 20). The

amended complaint asserts the following claims against the Authority and

Township: Count | - PHRA disability discrimination; Count Il - RA disability

discrimination; Count Ill — ADA discrimination; Count IV — FMLA interference;

and Count V — FMLA retaliation. Additionally, in Count VI, plaintiff asserts a

PHRA claim against the individual defendants for aiding and abetting the

disability discrimination by the Authority.

| 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. The court has supplemental jurisdiction over plaintiffs state law

claims pursuant to 28 U.S.C. § 1367(a). (“In any civil action of which the district

| courts have original jurisdiction, the district courts shall have supplemental

jurisdiction over all other claims that are so related to claims in the action within

| such original jurisdiction that they form part of the same case or controversy

| under Article Ill of the United States Constitution.”).

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.

| Ashoroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bel! Atl. Corp. v. Twombly, 55C

U.S. 544, 570 (2007)). 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. Id. (citing Twombly, 550 U.S. at 570). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

On a motion to dismiss for failure to state a claim, district courts accept all

factual allegations as true, construe the complaint in the light most favorable to

the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief. See Phillips, 515 F.3d at 233 (3d

| (citations omitted).

| Analysis

| The Authority moves to dismiss plaintiffs ADA discrimination claim in Coun

Ill and his FMLA retaliation claim in Count IV of the amended complaint. The

individual defendants move to dismiss plaintiffs PHRA claim against them

| premised on aiding and abetting the alleged disability discrimination. The court

will address each of these claims in turn.

| 1. Count Ill — ADA discrimination claim

The Authority first argues that it cannot be subject to an employment

| discrimination claim under Title | of the ADA, 42 U.S.C. § 12112(a), because it is

not a covered “employer,” that is, it employs fewer than fifteen (15) employees.

(Doc. 23 at 5 (citing 42 U.S.C. § 12111(5))). Plaintiff counters that, regardless of

the number of employees, the Authority is subject to employment discrimination

claims because it is a “public entity” under Title Il of the ADA.°

! The United States Supreme Court and the Third Circuit Court of Appeals

| have not directly addressed whether Title II of the ADA authorizes a claim for

employment discrimination claim as Title | does. The vast majority of the other

circuit courts conclude that a plaintiff may not bring an employment discriminatior

5 Title Il of the ADA provides that “no qualified individual with a disability shall, by reason of

| such disability, be excluded from participation in or be denied the benefits of the services,

| programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

U.S.C. § 12132.

claim under Title Il. ° See Taylor v. City of Shreveport, 798 F.3d 276, 282 (5th Cir

2015); Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 421 (4th Cir. 2015);

Brumfield v. City of Chi., 735 F.3d 619, 626 (7th Cir. 2013); Mary Jo C. v. N.Y.

State & Local Ret. Sys., 707 F.3d 144, 171 (2d Cir. 2013); Elwell v. Okla. ex rel.

Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1316 (10th Cir. 2012);

Zimmerman v. Or. Dep't of Justice, 170 F.3d 1169, 1184 (9th Cir. 1999); but see

Bledsoe v. Palm Beach Cty Soil & Water Conserv. Dist., 133 F.3d 816, 820 (11th

Cir. 1998)(holding Title II applies to employment discrimination claims).’

Decisions within the appellate jurisdiction of the Third Circuit largely follow the

majority view. Cook v. City of Phila., 94 F.Supp.3d 640, 648 (E.D. Pa. 2015)

(collecting cases).

At this posture, however, no document in the record establishes the

number of employees at the Authority other than an affidavit from the board

chairman, which the court may not consider on a motion to dismiss. See Schmidt

v. Skolas, 770 F.3d 241, 250 (3d Cir. 2014)(citing Cent. Contracting Co. v. Md.

6 The United States Supreme Court expressly declined to address this circuit spilt in Bd. of

Trustees of Univ. of Ala. v. Garrett, finding the parties failed to appropriately brief the issue.

531 U.S. 356, 360, n.1 (2001). The issue has evaded appellate review by the Third Circuit.

See Koslow v. Commonwealth of Pa., 302 F.3d 161, 166, n. 3 (3d Cir. 2002); Lavia v. Pa., 224

F.3d 190, 194, n. 2 (3d Cir. 2000).

7 In his brief in opposition, plaintiff relies on Haberle v. Troxell, 885 F.3d 170 (3d Cir. 2018) for

the proposition that Title !l applies to employment discrimination cases. (Doc. 26 at 6).

Haberle did not involve an employment discrimination claim.

|Cas. Co., 367 F.2d 341, 343 (3d Cir.1966). Accordingly, to the extent that Title |

of the ADA would permit plaintiff's employment discrimination claim as alleged in

| the complaint, the Authority's motion to dismiss must be denied to be revisited

later in the litigation.

2. Count IV — FMLA interference claim

Next, the Authority moves to dismiss plaintiff's FMLA interference claim.

The Authority argues that this claim fails because, as pled by plaintiff, his FMLA

requests were granted on two occasions. (Doc. 23 at p. 6). Plaintiff responds

that the Authority delayed its re-approval of FMLA eligibility, as averred in the

amended complaint, by misplacing the signature page on the application form

and by requiring a doctor's signature. (See Doc. 26 at 8; Doc. 20, Am. Compl. □□□

| 37-38). After careful review, the court concludes that plaintiff's amended

complaint fails to state a claim for FMLA interference.

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(a)(1). 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)).

To make a claim of interference under the FMLA, a plaintiff must establish:

| (1) he 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 “he was entitled to benefits under the FMLA and that he was denied

| them.” Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005).

| Plaintiff alleges he was approved for intermittent FMLA leave between

| November 2019 and November 2020, he had to reapply after that time, and the

Authority delayed formal approval “for well over a month.” (See Doc. 20 at Jj 35-

| 38). The amended complaint, however, does not set forth any facts that, during

this period of alleged delay, plaintiff gave notice to the Authority of taking leave o1

| that the Authority otherwise denied such benefits. As a result, Count IV will be

| dismissed as asserted against the Authority. The court, however, cannot rule out

| whether amendment would be futile. Plaintiff may thus file a second amended

| complaint within ten (10) days of this decision to the extent that he possesses

| additional facts to cure this defect. If plaintiff fails to amend, the dismissal of

| Count IV will convert into a dismissal with prejudice.

|

3. Count VI — PHRA aiding and abetting discrimination claim

Finally, the individual defendants move to dismiss plaintiff's aiding and

abetting discrimination claim filed pursuant to the PHRA. See 43 PA. STAT. §

| 955(e)(“It shall be an unlawful discriminatory practice. . .[flor any person. . .to aid,

abet, incite, compel, coerce the doing of any act declared by this section to be an

unlawful discriminatory practice.”).

Attaching plaintiffs PHRC complaint to the motion to dismiss, the individual

defendants argue that plaintiff failed to exhaust his administrative remedies by

not naming them as respondents and not including any individual reference to

| them in his allegations of discrimination. (See Doc. 23-1).

“The Pennsylvania Supreme Court has explicitly held that a discharged

employee cannot file a PHRA claim in the judicial system without first exhausting

administrative remedies.” Tlush v. Mfrs. Res. Ctr., 315 F. Supp. 2d 650, 656

|(E.D. Pa. 2002)(citing Clay v. Advanced Comput. Apps, Inc., 559 A.2d 917, 920

(Pa. 1989)). Under the PHRA, an administrative complaint requires that an

aggrieved person state “the name and address of the. . .person. . .alleged to

have committed the unlawful discriminatory practice[.]” 43 PA. STAT. § 959(a).

“Generally, if a plaintiff does not name a defendant in [their] administrative

10

| charge, [they are] precluded from later bringing an action against that defendant

in court.” Hills v. Borough of Colwyn, 978 F. Supp. 2d 469, 479 (E.D. Pa.

| 2013)(citing Schafer v. Board of Public Educ., 903 F.2d 243, 251 (3d

Cir.1990)(referring to this as the “named respondent rule”). “The purpose behind

this rule is to alert the implicated parties and to encourage an informal

conciliation process in lieu of trial.”. Kunwar v. Simco, 135 F.Supp.2d 649, 653

(E.D. Pa. 2001)(citation omitted); see also McLaughlin v. Rose Tree Media

school Dist., 1 F.Supp.2d 476, 482 (E.D. Pa. 1998)(“The purpose of requiring a

defendant to be named in the [administrative claim] is to give that defendant

notice of the allegations against it such that the party has an opportunity to

| resolve the situation without resort to further litigation.”).

| The Third Circuit Court of Appeals recognizes an exception to the named

| respondent rule. Despite not naming a defendant in an administrative complaint,

a plaintiff may be deemed to have exhausted administrative remedies and

proceed with a lawsuit “when the unnamed party received notice and there is a

| shared commonality of interest with the named party.” Schafer v. Bd. of Pub.

! Educ. of the Sch. Dist. of Pittsburgh, Pa., 903 F.2d 243, 252 (3d Cir. 1990)(citing

Glus v. G.C. Murphy Co., 629 F.2d 248, 251 (3d Cir.1980), vacated on other

11

| grounds, 451 U.S. 935 (1981)).8 When a plaintiff fails to name individual

defendants in the body of an administrative complaint, however, these

| defendants have not been placed on notice that they could be sued in their

| individual capacities, even if they are aware of the administrative complaint's

| existence. See Hills, 978 F.Supp.2d at 480. Accordingly, there are decisions in

| this district finding that plaintiffs have exhausted administrative remedies with

| respect to individual defendants if the body of the PHRC complaint named the

defendants and described the particular acts of discrimination sufficient to place

those defendants on notice. Johnson v. PSI Pizza, Inc., 3:11-cv-1698, 2012 WL

| 4450897 at * 5 (M.D. Pa. 2012)(Mannion, J.); Cardamone v. Murray

Management, Inc., 3:05-cv-679, 2005 WL 3478320 at *3 (M.D. Pa.

| 2005)(Caputo, J.). On the other hand, where an individual defendant is not

| named during PHRC proceedings, judges have dismissed the PHRA claims in

| the ensuing litigation. See Coe v. Pennsylvania State University, 4:14-cv-1818,

| 2016 WL 1162344 (M.D. Pa. 2016)(Brann, J.). As persuasively reasoned by

| ® Glus articulated a four-factor test for district courts to consider: 1) whether the role of the

| unnamed party could through reasonable effort by the complainant be ascertained at the time

| of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a

| named (party) are so similar as the unnamed party's that for the purpose of obtaining voluntary

| conciliation and compliance it would be unnecessary to include the unnamed party in the

| EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual

| prejudice to the interests of the unnamed party; and 4) whether the unnamed party has in

| some way represented to the complainant that its relationship with the complainant is to be

| through the named party. 629 F.2d at 251; see also Glus v. G. C. Murphy Co., 562 F.2d 880,

888 (3d Cir. 1977).

| 12

| Judge Brann in Coe, the “narrow” exception to the named respondent rule is “not

| a panacea to remedy incomplete or haphazard pleading[]’ before an

| administrative body. Id. at *8.

Here, plaintiff failed to name the individual defendants as respondents in

his PHRC complaint and did not mention them in his allegations there. As a

matter of law, the individual defendants were deprived of notice that plaintiff

would pursue claims against them in their individual capacities in this case.

Accordingly, Count VI of the amended complaint against the individual

defendants will be dismissed.

Conclusion

| For the reasons set forth above, the motion to dismiss filed by the Authority

and the individual defendants is granted in part and denied in part. The motion tc

dismiss Count III of the amended complaint is denied. The motion to dismiss

Count IV is granted; however, plaintiff may file a second amended complaint

| within ten (10) days of this decision or else Count IV will be dismissed with

| prejudice as to the Authority. Finally, the motion to dismiss Count VI is granted

and the individual defendants will be dismissed from this action. An appropriate

order follows.

| 13

on 3 [20 LIfe

| [ JUDGE JULIA K. MUNLE

United States

.

!

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