# Martin v. Avant Publications, LLC

> District Court, M.D. Pennsylvania · May 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10414788

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 30, 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/10414788

## 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
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

10

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.

11

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.
12

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
13

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.

14

pates? ( a “ed es :
JUDGE JULIA K. MUNLEY
United States District rt

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414788. Public record. Not legal advice.