Martin v. Avant Publications, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DOROTHY K. MARTIN, : No. 3:22cv276

Plaintiff :

: (Judge Munley)

V. :

AVANT PUBLICATIONS, LLC d/b/a

TIMES LEADER d/b/a TIMES LEADER:

MEDIA GROUP, :

Defendant :

MEMORANDUM

Before the court is Defendant Avant Publications, LLC d/b/a Times Leader

d/b/a Times Leader Media Group’s motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). This matter is ripe for disposition."

Background

This is an employment discrimination action by plaintiff against her former

employer, the publisher of The Times Leader newspaper.’ Plaintiff, born in 1955,

worked for defendant as an editor. (Doc. 1, Compl., Jf] 15-17). Plaintiff alleges

she suffers from arthritis, particularly in her legs, which affects her ability to walk

1 The Honorable Robert D. Mariani transferred this case to the undersigned on November 7,

2023.

2 These background facts are derived from plaintiff's complaint. At this stage of the

proceedings, we must accept all factual allegations in the complaint as true. Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The court makes no determination, however, as

to the ultimate veracity of these assertions.

and stand. (Id. 9 19). Per plaintiff, defendant was aware of her diagnosis and

physiological impairments. (Id. J] 20).

In this case, defendant permitted plaintiff to work from home beginning in

2017. (Id. § 25). On Friday, February 7, 2020, however, plaintiff alleges that

defendant directed her to begin working from defendant's Wilkes-Barre,

Pennsylvania office effective February 10, 2020. (Id. J] 26).

The next day, Saturday, February 8, 2020, plaintiff requested that she be

permitted to continue working from home and defendant informed plaintiff that

she would need a doctor’s note. (Id. J 29-30). Plaintiff requested the doctor's

note on Monday, February 10, 2020, and she provided it to defendant on the

afternoon of February 14, 2020 as soon as she received it. (Id. J] 31, 37).

Plaintiff did not report to the office February 10, 2020; she worked from home.

(Id. 9 32). As a result, defendant issued her a written reprimand. (Id. J 36).

Additionally, plaintiff alleges defendant denied a vacation-time submission on

February 12, 2020, in retaliation for her request to perform her duties from home.

(Id. Tf] 33-35).

On February 20, 2020, plaintiff emailed defendants’ director of human

resources requesting paperwork to file for leave under the Family and Medical

Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq. (Id. 9 38). She alleges

that she was terminated four days later, on February 24, 2020, on the same day

she reiterated to defendant’s news editor that she was requesting FMLA leave.

(Id. 9] 44, 46). Prior to her termination, plaintiff was the oldest editor on the staff

of The Times Leader. (Id. 50). She alleges that, upon her termination, her

duties were reassigned to younger, less qualified editors. (Id. {] 52).

Based on these allegations, plaintiff filed a complaint on February 23, 2022

asserting eleven (11) causes of action:

e Count! — wrongful termination in violation of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq;

e Count Il - wrongful termination in violation of the Pennsylvania

Human Relations Act (“PHRA”), 43 PA. STAT § 955(a);

e Count Ill — retaliation based on requests for reasonable

accommodation in violation of the ADA;

e Count IV — retaliation based on requests for reasonable

accommodation in violation of the PHRA;

e Count V — failure to accommodate in violation of the ADA;

e Count VI — failure to accommodate in violation of the PHRA;

e Count Vil — wrongful termination in violation of the FMLA;

e Count VIll — wrongful denial of leave in violation of the FMLA:

e Count IX — interference with and obstruction of plaintiffs FMLA

rights;

e Count X — age discrimination and wrongful termination in

violation of the Age Discrimination in Employment Act,

(“ADEA”), 29 U.S.C. § 621, et seg.

e Count XI — age discrimination and wrongful termination in

violation of the PHRA.

(Id. ff 74-114).

Defendant responded to the complaint by filing the instant motion to

dismiss all of plaintiff's claims. (Doc. 7). Having been fully briefed, this matter is

ripe for a decision.

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 plaintiff's 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

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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, □□□

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 filed pursuant to Rule 12(b)(6), 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 (citations

omitted).

Analysis

Defendant argues that plaintiff fails to state a claim on each of her causes

of action. The court will address defendant’s arguments relative to plaintiff's

disability discrimination claims first before turning to the arguments related to her

FMLA and age discrimination claims.

1. Plaintiff's Disability Discrimination Claims

Counts I-VI of plaintiff's complaint allege violations of the ADA and PHRA

for wrongful termination, retaliation, and failure to accommodate plaintiff's

disabilities.* To establish a prima facie case under the ADA, a plaintiff must

establish that she (1) has a ‘disability,’ (2) is a ‘qualified individual,’ and (3) has

suffered an adverse employment action because of that disability. See McNelis v

Pennsylvania Power & Light Co., 867 F.3d 411, 414 (3d Cir. 2017); 42 U.S.C.A.

§ 12112 (“No covered entity shall discriminate against a qualified individual on

the basis of disability in regard to. . .discharge of employees. . .and other terms,

conditions, and privileges of employment.”).

In challenging plaintiff's wrongful termination claims (Counts I-II),

defendant targets the first and third elements and argues that plaintiff's complaint

fails to allege facts showing defendant's notice of plaintiff's disability and a causa

connection between the alleged disability and the termination. The court

disagrees. Plaintiff alleges that she worked for defendant for thirteen (13) years

prior to her firing and that defendant permitted her to work from home for the

“The PHRA and the ADA are ‘basically the same in relevant respects and Pennsylvania

courts generally interpret the PHRA in accord with its federal counterparts.” Buskirk v. Apollo

Metals, 307 F.3d 160, 166, n. 1 (3d Cir. 2002)(quoting Rinehimer v. Cemcolift, Inc., 292 F.3d

375, 382 (3d Cir. 2002) (internal quotation marks, ellipses and further citation omitted).

Accordingly, this decision will only reference the ADA.

previous three (3) years. (Doc. 1, Compl., Jf] 16, 25). Per plaintiff, defendant was

aware of her diagnosis and physiological impairments, i.e., her arthritis in her

legs and her limitations with walking and standing. (Id. Jf] 18-21). During the

period where plaintiff's remote work status was in question, defendant sought

and plaintiff proffered a note from her doctor regarding the need to work from

home. (Id., J] 20-22, 29-31, 37). Nonetheless, plaintiff alleges that defendant

terminated her within two (2) weeks of providing the doctor’s note after additional

events relative to plaintiff's request for FMLA leave. (Id. [ff] 38, 44, 46).

Defendant’s motion to dismiss Counts I-Il regarding wrongful termination based

on disability will thus be denied.

Defendant also moves to dismiss plaintiff's ADA and PHRA retaliation

claims in Counts Ill-lV. To state a retaliation claim under the ADA, a plaintiff

must adequately plead that: (1) she engaged in protected activity; (2) defendant

took adverse action against the plaintiff either after or contemporaneous with her

protected activity; and (3) a causal connection exists between the plaintiff's

protected activity and that adverse action. See Daniels v. Sch. Dist. of Phila., 776

F.3d 181, 193 (3d Cir. 2015): see also 42 U.S.C. § 12203(a) (providing that “No

person shall discriminate against any individual because ... such individual made

a charge ... under [the ADA]” and making it unlawful for an employer to retaliate

against an employee because the employee requested an accommodation).

Defendant argues that the complaint does not identify or make any

averments that plaintiff engaged in protected activity. Defendant concedes,

however, that a request for a reasonable accommodation of disability constitutes

protected activity. See Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 188 (3d

Cir. 2010)(“Prohibited discrimination under the ADA includes retaliation against

an employee for requesting an accommodation.”)(citation omitted). Moreover, “a

request for FMLA leave may qualify, under certain circumstances, as a request

for a reasonable accommodation under the ADA.” Capps v. Mondelez Glob..,

LLC, 847 F.3d 144, 156-57 (3d Cir. 2017)(citing 29 C.F.R. § 825.702(c)(2)).

In her complaint, plaintiff has sufficiently alleged that she requested a

reasonable accommodation for her arthritis and ambulatory issues (continued

remote work after a return-to-office mandate) and then defendant took adverse

action within days of the request, i.e., the company then issued her a written

reprimand for not working in the office without a doctor’s note, denied her timely

and proper request for vacation time, refused to grant FMLA leave, and then

terminated her. (Doc. 1, Compl. Jf 29, 33, 35, 36, 38, 44-46). Accordingly,

defendant’s motion to dismiss plaintiffs ADA/PHRA retaliation claims in Counts

III-IV will be denied.

Defendant fares no better in its arguments to dismiss Counts V-VI, the

plaintiffs ADA/PHRA failure-to-accommodate claims, based on a lack of notice o

her disability. A plaintiff bringing an ADA failure-to-accommodate claim must

aver: (1) she was disabled; (2) her employer knew it; (3) she requested an

accommodation or assistance; (4) her employer did not make a good faith effort

to assist; and (5) she could have been reasonably accommodated. See Capps,

847 F.3d at 157 (citations omitted). Having determined that plaintiff sufficiently

alleged defendant’s knowledge of her disability in the discussion of plaintiff's

prima facie disability discrimination claims above, defendant's motion to dismiss

the failure-to-accommodate claims in Counts V-VI will likewise be denied.

2. Plaintiff's FMLA Claims

Plaintiff also asserts three separate causes of action based on the

defendant’s alleged violations of FMLA: Count VII — termination; Count VIII -

denial of leave; and Count IX — interference and obstruction. The court

construes these three counts as making two distinct, recognized FMLA claims for

interference and retaliation. See Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691

F.3d 294, 301 (3d Cir. 2012)(“When employees invoke rights granted under the

FMLA, employers may not “interfere with, restrain, or deny the exercise of or

attempt to exercise” these rights. 29 U.S.C. § 2615(a)(1). Nor may employers

“discharge or in any other manner discriminate against any individual for

opposing any practice made unlawful.” 29 U.S.C. § 2615(a)(2). The former

provision is generally, if imperfectly, referred to as “interference” whereas the

latter is often referred to as “retaliation.”); see aiso Eraman v. Nationwide Ins.

Co., 582 F.3d 500, 509 (3d Cir. 2009) (“firing an employee for a valid request for

FMLA leave may constitute interference with the employee's FMLA rights as well

as retaliation against the employee.”).

Defendant argues that the plaintiffs FMLA claims fail because there is no

allegation that plaintiff filed the paperwork for FMLA leave. (Id. at 24—25). This

contention is really a challenge to plaintiffs prima facie FMLA interference case

which requires, among other things, that “the plaintiff gave notice to the

defendant of his or her intention to take FMLA leave.” Capps, 847 at 155 (citing

Ross v. Gilhuly, 755 F.3d 185, 191 (3d Cir. 2014))(further citation omitted). And

a plaintiff is not required to plead that she presented a completed application; all

she must plead is that she gave notice of her intention to take FMLA leave. See

Scott v. UPMC, 435 F.App'x 104, 107 (3d Cir. 2011)(“[I]Jn order to invoke FMLA

protection, an employee must first notify her employer of her need for leave.”).

Moreover, “proper notice” requires a fact-intensive inquiry into the

circumstances of a plaintiff's requests based upon the language used in

regulations promulgated by the Department of Labor. See 29 C.F.R. §

825.302(a)(“An employee must provide the employer at least 30 days advance

notice before FMLA leave is to begin. . . If 30 days notice is not practicable, such

as because of a lack of knowledge of approximately when leave will be required

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to begin, a change in circumstances, or a medical emergency, notice must be

given as soon as practicable.”): 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.”).

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

have provided his employer with reasonably adequate information under the

circumstances to understand that the employee seeks leave under the FMLA.”

Id.

The complaint indicates that plaintiff gave notice to defendant's human

resources department on February 20, 2020 and reiterated her desire to take

FMLA leave to defendant’s news editor on February 24, 2020. (Doc. 1, Compl.

41, 44). Since proper notice is a question that requires discovery to appropriately

consider, defendant’s arguments about plaintiff not submitting FMLA paperwork

fall short at the motion to dismiss stage.

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Defendant also argues that, as alleged, plaintiff was given a written

reprimand for failing to appear to work in-person on February 10, 2020 prior to

the request for FMLA paperwork on February 20, 2020. (Doc. 9, Df. Br. in Supp.

at 24: Doc. 1, Compl. 7] 32, 26, 38). According to defendant, no FMLA violation

could occur because defendant already decided to take adverse action, i.e. the

written reprimand. But the reprimand is not the only adverse action alleged. The

complaint alleges plaintiff was terminated four days from the time she first sought

to take FMLA leave, and defendant denied her that leave in the interim.

Accordingly, plaintiffs FMLA interference and retaliation claims in Counts VII-IX

survive defendant’s motion to dismiss.

3. Plaintiff's Age Discrimination Claims

Finally, defendant moves to dismiss Counts X-Xl, plaintiffs ADEA and

PHRA claims.* “The ADEA prohibits employers from ‘discharg[ing] any individua

or otherwise discriminat[ing] against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual's age.’ ” Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638,

643-44 (3d Cir. 2015)(quoting 29 U.S.C. § 623(a)(1)). ADEA claims “differ only

4 As with plaintiffs ADA/PHRA claims, the analysis for plaintiffs ADEA and PHRA claims is

identical. See Fasold v. Justice, 409 F.3d 178, 184 n. 8 (3d Cir. 2005) (quoting Fogleman v.

Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002)); Connors v. Chrysler Fin. Corp., 160 F.3d

971, 972 (3d Cir. 1998) (“There is no need to differentiate between ... ADEA and PHRA claims

because ... the same analysis is used for both.”). This decision addresses only plaintiff's

ADEA claims.

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slightly” from ADA claims in terms of the elements needed to show a prima facie

case of discrimination; age replaces disability as the protected trait. See Fowler

v. AT&T, Inc., 19 F.4th 292, 299 (3d Cir. 2021). To make a prima facie ADEA

discrimination claim, a plaintiff must show that she was: (1) over the age of 40;

(2) subject to an adverse employment action; (3) qualified for her position; and

(4) the adverse employment action was because of her age. See id. (citing Willis,

808 F.3d at 644). In her complaint, plaintiff pleads facts to support each of these

elements. (See Doc. 1, Compl. J 15 (born in 1955), □ 46 (terminated), J] 17, 51

(qualified as an editor), and ff 50, 52 (oldest editor on staff; job duties

transferred upon termination to the remaining younger editors)).

Defendant argues, however, that plaintiff's age discrimination claims must

be dismissed because she did not allege information regarding the relative age o

the younger editors. This requires application of a standard higher than the Third

Circuit Court of Appeals permits on a motion to dismiss. See Martinez v. UPMC

Susquehanna, 986 F.3d 261, 265-67 (3d Cir. 2021). In Martinez, the Third

Circuit determined that allegations by a 70-year-old orthopedic surgeon that he

was replaced by two “significantly younger” surgeons were sufficient to make out

a prima facie case of age discrimination. Id. Moreover:

In an age-discrimination suit, the legal conclusion that the

plaintiff needs to win is that the employer took the adverse

action because of the plaintiffs age. The replacements’

exact ages are not ultimate issues or even legally

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mandated elements. Indeed, no minimum age gap is

needed to find that the replacement is “sufficiently

younger.” Barber v. CSX Distrib. Servs., 68 F.3d 694, 699

(3d Cir. 1995). . .

Even circumstantial-evidence cases do not always require

an age gap or a direct replacement. The plaintiff can

instead allege actions by an employer that, “if otherwise

unexplained, are more likely than not based on the

consideration of impermissible factors.” Willis, 808 F.3d at

644 (quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d

344, 352 (3d Cir. 1999)).

Id. at 266-67.

A fair reading of plaintiff's complaint permits the inference that plaintiff, the

oldest editor on staff, was replaced by sufficiently “younger” editors who

absorbed her duties when she was terminated just shy of her 65th birthday. She

need not plead her replacements’ exact age, see id. at 264, or be certain about

her observations of a person’s estimated age, see id. at 267. Accordingly,

defendant’s motion to dismiss plaintiff's age discrimination claims in Counts □□□□

will be denied.

Conclusion

For the reasons set forth above, defendant’s motion to dismiss is denied.

An appropriate order follows.

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pates? ( a “ed es :

JUDGE JULIA K. MUNLEY

United States District rt

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