MARX v. ARENDOSH HEATING & COOLING, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SCOTT MARX, )

)

Plaintiff, )

v. ) Civil No. 2:20-cv-00338

)

ARENDOSH HEATING & COOLING, )

INC., )

)

Defendant. )

Opinion

In this civil rights employment discrimination action, Plaintiff Scott Marx sues Defendant

Arendosh Heating & Cooling, Inc. (Arendosh) alleging he was unlawfully terminated from his

job in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and

the Pennsylvania Human Relations Act (PHRA) 43 P. S. § 951, et seq. Presently before the

Court is Arendosh’s Motion to Dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil

Procedure Rule 12(b)(6). ECF No. 8. For the reasons that follow, the Motion to Dismiss will be

granted in part and denied in part.

I. Factual Background

Scott Marx was hired as a salesman by Arendosh Heating & Cooling, Inc. on May 28,

2018. Compl. ¶ 13, ECF No. 1. On September 16, 2018, Mr. Marx suffered a seizure and stroke

and was transported to the hospital. Id. ¶ 15. Upon discharge from the hospital, Mr. Marx was

informed he was not permitted to drive, pending a follow-up appointment. Id. ¶ 16. When Mr.

Marx returned to work on Wednesday, September 19, 2018, he notified the owner of Arendosh,

Joseph Arendosh, of his medical condition and his inability to drive until he is medically cleared.

Id. ¶¶ 17-18. Mr. Marx provided Mr. Arendosh with copies of his September 16, 2018 medical

records documenting his seizure and stroke. Id. ¶ 19. He also informed Mr. Arendosh that his

follow-up medical appointment would occur within one week. Id. ¶ 20. Mr. Arendosh then

directed an employee to drive Mr. Marx to and from job sites to give appraisals before he sent

Mr. Marx home. Id. ¶ 21. On Friday, September 21, 2018, Arendosh terminated Mr. Marx by

letter, signed by Mr. Arendosh. Id. ¶ 22; Letter from J. Arendosh to S. Marx, Sept. 21, 2018, Ex.

A to the Complaint, ECF No. 4. Mr. Arendosh stated:

Unfortunately, d[ue] to your recent health problem we are forced to terminate

you[r] employment. The hospital and doctor forms you submitted clearly state no

driving. The requirement of your present sales position employment requires you

to drive daily. If for some reason your license situation changes please let us

know as soon as possible.

Id.

Approximately one week after his termination, Mr. Marx’s neurologist cleared him to

resume driving. Compl. ¶ 24. The neurologist sent documentation to the Pennsylvania

Department of Motor Vehicles (DMV) to reinstate Mr. Marx’s driving privileges. Id. ¶ 25. On

October 29, 2018, the DMV restored Mr. Marx’s driving privileges. Id. ¶ 26. Mr. Marx orally

informed Mr. Arendosh of his reinstated driving privileges on October 31, 2018. Id. ¶ 27.

During their conversation, Mr. Arendosh told Mr. Marx that the company would “bring [him]

back” once confirmation of his medical release and reinstated driving privileges were provided

to Arendosh. Id. ¶ 28. On November 14, 2018, Mr. Marx provided Mr. Arendosh with updated

medical documentation as well as documentation from the Pennsylvania DMV documentation

confirming that Mr. Marx’s driving privileges were reinstated. Id. ¶ 29. Arendosh chose not to

rehire Mr. Marx. Id. ¶ 30. Mr. Arendosh explained that his decision not to rehire Mr. Marx was

because the “Doctor’s notes aren’t very clear.” Id. ¶ 31. Mr. Marx questioned Mr. Arendosh’s

reasoning regarding his decision not to rehire him, to which Mr. Arendosh replied, “That’s what

I decided.” Id. ¶¶ 32-33.

In his Complaint, Mr. Marx alleges that Arendosh unlawfully terminated him in violation

of the ADA (Count 1) and the PHRA (Count 2) based on his disability or because Arendosh

regarded him as disabled. Mr. Marx also alleges that Arendosh unlawfully failed to

accommodate him, failed to rehire him, and, with respect to the ADA only, retaliated against him

because he requested a reasonable accommodation.

II. Standard of Review

When reviewing a motion to dismiss, pursuant to Federal Rule of Civil Procedure

12(b)(6), the court must “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.” Eid v. Thompson, 740 F.3d 118, 122 (3d Cir.

2014) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). “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)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556); see also Thompson v. Real Estate Mortg. Network, 748 F.3d 142,

147 (3d Cir. 2014). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. A pleading party need not

establish the elements of a prima facie case at this stage; the party must only “put forth

allegations that ‘raise a reasonable expectation that discovery will reveal evidence of the

necessary element[s].’” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.2009) (quoting

Graff v. Subbiah Cardiology Associates, Ltd., 2008 WL 2312671 (W.D. Pa. June 4, 2008)); see

also Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d Cir.2016) (“Although a reviewing

court now affirmatively disregards a pleading’s legal conclusions, it must still . . . assume all

remaining factual allegations to be true, construe those truths in the light most favorable to the

plaintiff, and then draw all reasonable inferences from them.”) (citing Foglia v. Renal Ventures

Mgmt., LLC, 754 F.3d 153, 154 n. 1 (3d Cir.2014)).

Plaintiff’s allegations must be accepted as true and construed in the light most favorable

to plaintiff when determining if the complaint should be dismissed. Trzaska v. L'Oreal USA,

Inc., 865 F.3d 155, 162 (3d Cir. 2017), as amended (Aug. 22, 2017). Nonetheless, a court need

not credit bald assertions, unwarranted inferences, or legal conclusions cast in the form of factual

averments. Morse v. Lower Merion School District, 132 F.3d 902, 906, n. 8 (3d Cir.1997). The

primary question in deciding a motion to dismiss is not whether the Plaintiff will ultimately

prevail, but rather whether he or she is entitled to offer evidence to establish the facts alleged in

the complaint. Maio v. Aetna, 221 F.3d 472, 482 (3d Cir.2000). The purpose of a motion to

dismiss is to “streamline [] litigation by dispensing with needless discovery and factfinding.”

Neitzke v. Williams, 490 U.S. 319, 326–327, (1989).

Finally, if the court decides to grant a motion to dismiss for failure to state a claim upon

which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the court must next decide

whether leave to amend the complaint must be granted. “[I]f a complaint is vulnerable to

12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment

would be inequitable or futile.” Phillips, 515 F.3d at 236 (citing Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002)).

Ill. Discussion

The ADA prohibits covered entities from “discriminat[ing] 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). To state a claim for relief under the ADA, a

plaintiff must allege facts demonstrating “(1) [s/]he is a disabled person within the meaning of

the ADA; (2) [s/Jhe 1s otherwise qualified to perform the essential functions of the job, with or

without reasonable accommodations by the employer; and (3) [s/]he has suffered an otherwise

adverse employment decision as a result of discrimination.” Eshleman v. Patrick Indus., 961

F.3d 242, 245 (3d Cir. 2020) (internal quotations omitted) (quoting Taylor v. Phoenixville Sch.

Dist., 184 F.3d 296, 306 (3d Cir. 1999)). The ADA considers a person disabled if they: “(A)

[have] a physical or mental impairment that substantially limits one or more mayor life activities

of such individual; (B) [have] a record of such an impairment; or (C) [is] regarded as having

such an impairment.” 42 U.S.C. § 12102(1). “[T]o be an individual with a disability, an

individual is only required to satisfy one prong.” 29 C.F.R. app. § 1630.2(g)(2).

Arendosh moves to dismiss Mr. Marx’s Complaint for failure to state a prima facie case

of disability discrimination. First, Arendosh argues that Mr. Marx’s allegations are insufficient

to support that he is actually disabled because he fails to sufficiently allege a substantial

limitation on a major life activity. Next, Arendosh argues that Mr. Marx’s alleged impairment

does not qualify as a disability under the ADA because it was temporary, non-chronic, and of

short duration. Arendosh then argues that Mr. Marx’s allegations are insufficient to state a claim

1 “Because the PHRA is basically the same as the ADA in relevant respects, the same analysis applies to a PHRA

claim as to an ADA claim.” Rinehimer v. Cemcolift, 292 F.3d 375, 382 (3d Cir. 2002) (internal quotations and

citations omitted). Therefore, the Court considers Mr. Marx’s PHRA and ADA claims together.

that Arendosh regarded him as disabled within the meaning of the ADA. Finally, Arendosh

moves to dismiss Mr. Marx’s failure to accommodate and retaliation claims for failure to state a

claim.

A. Substantial Limitation on Major Life Activity

Arendosh argues that Mr. Marx has failed to sufficiently allege that his stroke and seizure

substantially limited his major life activities. Under the “actual disability” prong of the ADA, 42

U.S.C. § 12102(1)(A), a plaintiff must allege an impairment that substantially limits a major life

activity. Bragdon v. Abbott, 524 U.S. 624, 631 (1998). “An impairment that is episodic or in

remission is a disability if it would substantially limit a major life activity when active.” 42

U.S.C. § 12102(4)(D). “The ADA was amended by the ADA Amendments Act of 2008

(“ADAAA”), which took effect on January 1, 2009. Rubano v. Farrell Area Sch. Dist., 991 F.

Supp. 2d 678, 690 (W.D. Pa. 2014). “In enacting the ADAAA, Congress has made clear that the

‘question of whether an individual’s impairment is a disability under the ADA should not

demand extensive analysis[.]’” Id. (quoting ADAAA § 2(b)(5), Pub.L. 110–325, S. 3406, 122

Stat. 3553, 3554 (2008)).

“The term ‘substantially limits’ shall be interpreted consistently with the findings and

purposes of the ADA Amendments Act of 2008,” 42 U.S.C. §12102(4)(B), and “shall be

construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms

of the ADA. 29 C.F.R. § 1630.2(j)(1)(i). It “is not meant to be a demanding standard.” Id. The

substantial limitation of an individual’s ability to perform a major life activity is judged in

comparison “to most people in the general population.” Id. § 1630.2(j)(1)(ii). “Major life

activities include, but are not limited to, caring for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,

reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).

Major life activities also include “the operation of a major bodily function,” including

“neurological, brain, respiratory, [and] circulatory … functions.” Id. § 12102(2)(B). Further,

“[t]he operation of a major bodily function includes the operation of an individual organ within a

body system.” Id. § 1630.2(i)(1)(ii).

Mr. Marx alleges that his impairment, a stroke and seizure, limited his ability to sleep and

concentrate, and limited him in performing general activities. Each of these activities is

specifically identified within the relevant statutes and regulations as a major life activity under

the ADA. Mr. Marx’s allegations regarding this element of a prima facie case are not viewed in

isolation. He alleges that he suffered an impairment that, by definition, affects neurological

functioning. Viewed in a light most favorable to Mr. Marx, his allegations support the inference

that his impairment affected his neurological functioning, which negatively impacted his sleep

and his ability to concentrate. Mr. Marx has provided “enough facts to raise a reasonable

expectation that discovery will reveal evidence” of specifically how his impairment affected the

major life activities he identified. Phillips, 515 F.3d at 234. Arendosh has sufficient

information to specifically inquire of Mr. Marx as to how his impairment limits his sleep (e.g,

unable to get to sleep, waking in the middle of the night, etc.), his concentration (e.g, reading,

watching television, engaging in conversation, etc.), and his general activities. See Fowler, 578

F.3d at 213 (plaintiff is not required to establish the elements of a prima facie case at the motion

to dismiss stage). Considering the relevant legal standard on a motion to dismiss under Rule

12(b)(6), Iqbal, 556 U.S. 662, Twombly, 550 U.S. 544, and Connelly, 809 F.3d 780, the Court

finds that Mr. Marx has set forth sufficient factual allegations, taken as true, to support that his

impairment substantially limits a major life activity.

Mr. Marx’s allegations, however, are insufficient to show that Mr. Marx is pleading

“driving” as a major life activity by itself, or as it relates to working. First, Mr. Marx has not

alleged a substantial limitation to his ability to work at all. In addition, “driving” by itself, does

not qualify as a major life activity. See Robinson v. Lockheed Martin Corp., 212 F. App’x 121,

124 (3d Cir. 2007) (“driving is not a major life activity”) (citing Chenoweth v. Hillsborough

County, 250 F.3d 1328, 1329-30 (11th Cir.2001) and Colwell v. Suffolk County Police Dep’t,

158 F.3d 635, 643 (2d Cir.1998)). Accordingly, Arendosh’s Motion to Dismiss Mr. Marx’s

disability claim for failure to allege a substantial limitation on a major life activity will be denied

as to sleeping, concentrating, and general activities, and granted as to driving and working.

Mr. Marx will be permitted leave to amend, should he choose to do so, to provide

sufficient allegations that he was substantially limited in the major life activity of working.

Federal Regulations, however, caution against claiming the major life activity of “working.” 29

C.F.R. app. § 1630.2(j)(5-6) (“In most instances, an individual with a disability will be able to

establish coverage by showing substantial limitation of a major life activity other than working;

impairments that substantially limit a person's ability to work usually substantially limit one or

more other major life activities.”).

B. Duration of the Disability under the ADA

Arendosh next argues that, even if Mr. Marx sufficiently alleges a substantial limitation

on a major life activity, his claimed impairments are non-qualifying under the ADA because they

are temporary, non-chronic impairments of short duration. Initially, under the ADA,

impairments of short duration are not automatically foreclosed as disabilities. “[F]ollowing

? This is not to say a plaintiff cannot allege “working” as a major life activity. The regulations discuss the process

for demonstrating a substantial limitation to the major life activity of “working.” 29 C.F.R. app. § 1630.2(j).

enactment of the ADAAA, ‘[t]he effects of an impairment lasting or expected to last fewer than

six months can be substantially limiting.’” Miller v. Coca-Cola Refreshments USA, Inc., No.

2:16CV93, 2018 WL 1456502, at *11 (W.D. Pa. Mar. 23, 2018) (quoting 29 C.F.R. §

1630.2(j)(1)(ix) (emphasis added)). In addition, “[a]n impairment that is episodic or in remission

is a disability if it would substantially limit a major life activity when active.” 29 C.F.R. §

1630.2(j)(1)(vii).

As stated above, Mr. Marx’s allegations support the inference that his impairment

affected his neurological functioning, which negatively impacted his sleep, his ability to

concentrate, and to engage in general activities. As the Miller Court explained, “‘[t]he duration

of an impairment is one factor that is relevant in determining whether the impairment

substantially limits a major life activity.” Miller, 2018 WL 1456502, at *11 (quoting 29 C.F.R.

Pt. 1630, App.)). “‘Impairments that last only for a short period of time are typically not

covered, although they may be covered if sufficiently severe.’” Id. “The determination of

whether an impairment substantially limits a major life activity requires an individualized

assessment.” 29 C.F.R. § 1630.2(j)(1)(iv). Such an individualized assessment is best undertaken

after the parties have had a full opportunity to undergo discovery. Discovery will provide

Arendosh the opportunity to inquire of Mr. Marx about the severity of his limitations with

respect to the duration of the impairment. Phillips, 515 F.3d at 234. At this stage of the

proceedings, it is premature to conclude, as a matter of law, that Mr. Marx’s impairment is too

short in duration to qualify as a disability under the ADA. Arendosh’s Motion to Dismiss, to the

extent that it argues that Mr. Marx’s disability was too short in duration to qualify as a disability,

will be denied.

C. “Regarded As” Claim

To be “regarded as” having a disability under the ADA, a plaintiff must allege facts to

show he “has been subjected to an action prohibited under this chapter because of an actual or

perceived physical or mental impairment whether or not the impairment limits or is perceived to

limit a major life activity.” 42 U.S.C. § 12102(3)(A). “This provision is designed to restore

Congress’s intent to allow individuals to establish coverage under the ‘regarded as’ prong by

showing that they were treated adversely because of an impairment, without having to establish

the covered entity’s beliefs concerning the severity of the impairment..” 29 C.F.R. app. §

1630.2(l). An employee is “regarded as” disabled when an employer “‘misinterpret[s]

information about an employee’s limitations to conclude that the employee is incapable of

performing’ his or her job requirements.” Eshleman, 961 F.3d at 245. Even if an employer

asserts, or ultimately establishes, a defense to having taken a prohibited action against an

employee because of the employee’s perceived disability, the employer has still “regarded” the

employee as having a disability. 29 C.F.R. § 1630.2(l)(2). Coverage under the “regarded as”

prong of the definition of disability should not be difficult to establish. 29 C.F.R. app. §

1630.2(l).

Arendosh argues that Mr. Marx cannot state a “regarded as” claim because his alleged

impairment, stroke and seizure, is transitory and minor. “[W]here a plaintiff is merely regarded

as disabled rather than suffering from an actual disability, the perceived impairment must not be

transitory and minor. Kiniropoulos v. Northampton Cty. Child Welfare Serv., 917 F. Supp. 2d

377, 386 (E.D. Pa. 2013) (citing 42 U.S.C. § 12102(3)(B). “The ‘transitory and minor’ argument

is a defense to an ADA claim.” Odysseos v. Rine Motors, Inc., No. 3:16CV2462, 2017 WL

914252, at *2 n. 1 (M.D. Pa. Mar. 8, 2017) (quoting 29 C.F.R. § 1630.15(f)). Arendosh has the

burden to “establish that the perceived impairment is objectively both transitory and minor.”

Eshleman, 961 F.3d at 247 (emphasis in original). Arendosh “may not defeat ‘regarded as’

coverage … simply by demonstrating that it subjectively believed the impairment was transitory

and minor.” 29 C.F.R. § 1630.15(f). The ADA defines “transitory” as “an impairment with an

actual or expected duration of 6 months or less.” 42 U.S.C. § 12102(3)(b). “Minor” is not

defined by the statue, however, courts considering whether an impairment is “minor” should

consider “such factors as the symptoms and severity of the impairment, the type of treatment

required, the risk involved, and whether any kind of surgical intervention is anticipated or

necessary—as well as the nature and scope of any post-operative care.” Eshleman, 961 F.3d at

247.

In Odysseos v. Rine Motors, on a motion to dismiss, the defendant raised a similar

argument that plaintiff’s impairment was transitory and minor. Odysseos, 2017 WL 914252, at

*2. In Odysseos, the defendant argued that plaintiff's heart impairment was objectively

transitory and minor. Odysseos, WL 914252, at *2. As to the “transitory” prong, the defendant

argued that the impairment lasted only three months. Id. As to the “minor” prong, the defendant

argued “that plaintiff advised the defendant’s owner, Rinehart, that he had completely recovered

from his hospitalization, that he never missed work for health reasons, and that he only missed

eight (8) days of work due to his post-biopsy infection.” Id. The Court disagreed, explaining the

relevant law as follows:

federal regulation interpreting the “transitory and minor” impairment defense

indicates that an employer that terminates an employee with an objectively

“transitory and minor” impairment, mistakenly believing it to be symptomatic of a

potentially disabling impairment, has nevertheless regarded the employee as

disabled. 29 C.F.R. § 1630, App. Stated differently, an employer that takes a

prohibited employment action against an employee based on a perceived

impairment that is not “transitory and minor” has regarded the employee as

disabled. Id.

Odysseos, 2017 WL 914252, at *2. In Odysseos, the plaintiff alleged that defendant regarded

him as having a disabling heart impairment. After plaintiff returned to work, defendant

repeatedly questioned him about his current health and about his potential future health. Id. In

response, the plaintiff assured defendant that his health was good. Id. Nonetheless, defendant

interviewed candidates for plaintiff's position, continually asked plaintiff about his plans for

retirement, and eventually terminated him. Id. The Odysseos Court concluded that, even if

plaintiff’s impairment was transitory and minor, “[t]aking plaintiff’s well-pled allegations as

true, the defendant’s owner, Rinehart, may have believed plaintiff’s diagnostic heart monitoring

to be symptomatic of an impairment disabling enough to terminate plaintiff's employment.” Id.

at *3. Thus, the Court concluded that at “this juncture, prior to the development of a full factual

record, plaintiff has sufficiently pled that the defendant “regarded” him as disabled.” Id.

Here, Arendosh similarly argues that Mr. Marx’s stroke and seizure is transitory and

minor because medical care lasted only three days, his driving privileges were restored in less

than two months, and Mr. Marx advised Mr. Arendosh that he had been medically cleared to

return to work with no restrictions. As with the plaintiff in Odysseos, Mr. Marx’s allegations,

viewed in a light most favorable to him, support the inference that Mr. Arendosh regard Mr.

Marx as disabled. Mr. Marx informed Arendosh of his seizure, stroke, and hospitalization.

Arendosh appointed Mr. Marx a driver because of his driving restriction. In Mr. Arendosh’s

termination letter, he acknowledged Mr. Marx’s “recent health problem” as well as a potential

indefiniteness to Mr. Marx’s impairment (“If for some reason your license situation changes”).

When refusing to rehire Mr. Marx, Arendosh referred to medical documentation it viewed as not

“very clear.” Taken together, Mr. Marx alleges that Arendosh was not only aware of Mr. Marx’s

alleged impairment, but that Arendosh actually regarded Mr. Marx as disabled. It is a fair

inference to presume that Arendosh did not want to continue to provide a driver for Mr. Marx,

and therefore terminated him. This conclusion is further supported by Arendosh’s termination

letter, which suggests that Arendosh’s perception that Mr. Marx was disabled was in fact the

cause of Mr. Marx’s termination. Furthermore, Arendosh’s explanation why it chose not to

rehire Mr. Marx based on “unclear” medical documentation, suggests that Arendosh was, at a

minimum, concerned that Mr. Marx’s impairments and limitations were not transitory.

Likewise, it is a fair inference that Arendosh left open the possibility that Mr. Marx would be

rehired, but only if Mr. Arendosh no longer had to provide an accommodation for Mr. Marx.

Finally, when Mr. Marx attempted to regain his position, Arendosh may have determined that

because the medical documentation was unclear, it may have had to provide Mr. Marx with some

accommodation, and Arendosh did not want to. As in Odysseos, Arendosh’s “prohibited

employment action against an employee based on a perceived impairment that is not ‘transitory

and minor’” is sufficient to show that the employer has regarded the employee as disabled.

Odysseos, 2017 WL 914252, at *2 (citing 29 C.F.R. § 1630, App.). Therefore, the Court

concludes that at this early stage of the proceedings, “prior to the development of a full factual

record, [Mr. Marx] has sufficiently pled that the defendant “regarded” him as disabled.” Id.

In addition, Mr. Marx’s claim survives independently because at this stage of the

proceedings it is premature to conclude that his impairment is minor. As stated by the Eshleman,

“the issue of whether an impairment is ‘minor’ is a separate and distinct inquiry from whether it

is ‘transitory.’” Eshleman, 961 F.3d at 247. The “‘transitory and minor’ exception was intended

to weed out only ‘claims at the lowest end of the spectrum of severity,’ such as ‘common

ailments like the cold or flu,’ and that the exception ‘should be construed narrowly.’” Eshleman,

961 F.3d at 248 (citing H.R. Rep. No 110-730 pt. 2, at 5 (2008)). Evaluating Mr. Marx’s

allegations in accordance with the standard applicable at this stage of the proceedings, it is

premature to conclude that Mr. Marx’s impairment is objectively minor. The record on this issue

needs to be developed through discovery. Bearing in mind that “[c]overage under the ‘regarded

as’ prong of the definition of disability should not be difficult to establish,” 29 C.F.R. app. §

1630.2(1), at this stage, Mr. Marx has sufficiently pleaded he was “regarded as” disabled by

Arendosh. Arendosh’s Motion to Dismiss Mr. Marx’s “regarded as” claim will be denied.

D. Failure to Accommodate and Retaliation Claims

To support a claim for failure-to-accommodate under the ADA,° a plaintiff must

establish four elements: “‘(1) he was disabled and his employer knew it; (2) he requested an

accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4)

he could have been reasonably accommodated.’” Capps v. Mondelez Global, LLC., 847 F.3d

144, 157 (3d Cir. 2017) (quoting Armstrong v. Burdette Tomlin Mem’! Hosp., 438 F.3d 240, 246

(3d Cir. 2006). Once the employee has requested an accommodation, “the employer must make

a reasonable effort to determine the appropriate accommodation” which is “best determined

through a flexible, interactive process that involves both the employer and the individual with a

disability.” 29 C.F.R. pt. 1630, app. § 1630.9 at 419. To support a retaliation claim a plaintiff must

allege three elements: (1) he engaged in protected activity; (2) his employer took a ‘materially adverse’

action against him; and (3) there was a causal connection between the protected activity and the

employer’s action. Garner v. Sch. Dist. of Phila., 63 F. Supp. 3d 483, 500 (E.D. Pa. 2014).

3 Mr. Marx did not state a claim for failure to accommodate under the PHRA in Count 2.

14

Mr. Marx’s allegations do not, as currently alleged, support an accommodation claim or

retaliation claim because his allegations do not support the inference that he engaged in the

protected activity of requesting an accommodation. Mr. Marx does not allege that he requested

an accommodation upon first returning to work. He alleges only that he told Mr. Arendosh about

his driving restriction. In response, Mr. Arendosh provided Mr. Marx with a driver, but Mr.

Marx does not allege that he requested a driver. There are no allegations as to what either party

did on the day after Mr. Marx was provided with a driver, up to the time he was fired on

September 21, 2018. He also does not allege that he requested an accommodation when he

reapplied for his position. In fact, the reasonable inference from the allegations is that Mr. Marx

did not think he needed an accommodation. When Mr. Marx reapplied for his job, he offered

documentary evidence to show that he was permitted to drive, implying that he was not in need

of an accommodation. Therefore, because the allegations do not support that Mr. Marx

requested an accommodation, Arendosh’s Motion to Dismiss Mr. Marx’s failure to

accommodate claim and retaliation claim will be granted.* Said claims will be dismissed with

prejudice.

Mr. Marx will be permitted leave to amend his failure to accommodate claim, should he

choose to do so, to provide sufficient allegations that he requested an accommodation. Mr. Marx

is also permitted leave to amend his retaliation claim, should he choose to do so, to provide

sufficient allegations that engaged in the protected activity of requesting an accommodation.

* Arendosh’s Motion to Dismiss the failure to accommodate claim because Mr. Marx is not actually disabled is

moot, because the Court has found that, for purposes of the Motion to Dismiss, Mr. Marx has sufficiently alleged

that he is a disabled person under the ADA.

15

IV. Conclusion

For the reasons stated above, Arendosh’s Motion to Dismiss will be granted in part, and

denied in part. An appropriate Order will be entered.

IT IS SO ORDERED.

Dated: December 18, 2020 HMeprhyr. yHora—

Marilyn J. Hor.

United States District Court Judge

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