LAPORTE v. UNITY FAMILY SERVICES, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DIANA LAPORTE, )

)

Plaintiff, )

) 2:22-cv-01226

v. )

)

UNITY FAMILY SERVICES ) Chief Judge Mark R. Hornak

INCORPORATED, et al., )

)

Defendants. )

OPINION

Mark R. Hornak, Chief United States District Judge

Diana LaPorte (“Ms. LaPorte”) filed this suit under the Americans with Disabilities Act,

42 U.S.C. § 12111 et seq. (“ADA”), alleging that her former employer, Unity Family Services

(“Unity”) and her former supervisor, Megan Aleandri (“Ms. Aleandri”) unlawfully discriminated

against her due to her disabilities. Ms. LaPorte specifically brought claims of denial of valuable

consideration related to an employment agreement (Count I) and constructive discharge (Count II)

against Unity and a claim of detrimental reliance against Ms. Aleandri (Count V).1 (Pl’s First Am.

Compl., ECF No. 8.) Ms. LaPorte had also brought a claim for breach of contract (Count III) and

a request for equitable relief in the form of specific performance (Count IV) but chose to withdraw

these claims. (Pl’s Br. in Opp’n, ECF No. 20, at 2.) Counts I and II specifically reference the ADA,

the other remaining Counts arise under state law.

Pending before the Court is a Motion filed by Defendants to dismiss Count V for lack of

ripeness and standing and to dismiss all Counts (I-V) for a failure to state a claim upon which relief

1 The Court has federal question jurisdiction over Ms. LaPorte’s claims against Unity arising under the ADA. 28

U.S.C. § 1331. The Court has supplemental jurisdiction over Ms. LaPorte’s non-federal question claims against Ms.

Aleandri because the claims are “so related to the claims in the action within such original jurisdiction that they form

part of the same case or controversy.” 28 U.S.C. § 1367.

can be granted. (Defs.’ Mot. to Dismiss, ECF No. 17.) The Court has considered the parties’

moving, opposition, and reply papers, and for the reasons that follow, the Court GRANTS

Defendants’ Motion to Dismiss Counts III and IV with prejudice, as they were voluntarily

abandoned; GRANTS Defendants’ Motion to Dismiss Count II without prejudice; GRANTS

Defendants’ Motion to Dismiss Count V without prejudice; and DENIES Defendants’ Motion to

Dismiss Count I.

I. BACKGROUND

A. Factual Summary2

In November 2019, Ms. LaPorte began working at Unity as a Family Based Therapist3 in

Armstrong County, PA. (Pl’s First Am. Compl., ECF No. 8, ¶ 8.) During her employment with

Unity, Ms. LaPorte was supervised by Ms. Aleandri (Clinical Director), Daniel Holland

(Supervisor), Regina Shoup (Supervisor), and Rachel Manfredo (Supervisor in Training). (Id. ¶

9.)

When Ms. LaPorte was hired at Unity, she was seeking licensure to be a Professional

Counselor. (Id. ¶ 10.) One of the requirements for this license is to complete 3,000 hours of

Supervised Clinical Experience in no less than 2 years and no more than 6 years after obtaining a

master’s degree in counseling. (Id.) Before accepting the position with Unity, Ms. LaPorte told her

interviewer (Mr. Holland) about this goal and expressed that she wanted to work for Unity “so she

could obtain the clinical hours in pursuit of her licensure.” (Id. ¶ 12.) In response, Mr. Holland told

Ms. LaPorte that someone within Unity would be willing to supervise her clinical hours if she were

2 This statement of facts is based on the allegations set forth in Plaintiff’s First Amended Complaint (ECF. No. 8),

which the Court must generally accept as true for purposes of ruling on the pending Motion to Dismiss. Blanyar v.

Genova Prods., Inc., 861 F.3d 426, 431 (3d Cir. 2017).

3 Defendants state that Ms. LaPorte’s correct title at the time she was hired was Family Based Mental Health

Clinician. (ECF No. 18, at 1 n.2.)

to accept employment with Unity. (Id. ¶ 13.) Ms. LaPorte then accepted the position with Unity.

(Id. ¶ 15.) A couple of weeks into her employment, Ms. LaPorte asked Ms. Aleandri to supervise

Ms. LaPorte’s clinical hours and Ms. Aleandri agreed. (Id. ¶ 16.) Between her hire in November

2019 and early June 2021, Ms. LaPorte accumulated about 2,553 clinical hours under Ms.

Aleandri’s supervision. (Id. ¶¶ 17, 31.) Ms. Aleandri’s supervision of Ms. LaPorte’s clinical hours

ended in early June 2021. (Id. ¶ 31.)

In February 2021, Ms. LaPorte was diagnosed with OCD, generalized anxiety disorder,

and major depressive disorder.4 (Id. ¶ 7.) On or about August 9, 2021—after Ms. Aleandri’s

supervision of Ms. LaPorte’s clinical hours had already ended (see id. ¶ 31)—Ms. LaPorte told

Ms. Aleandri that Ms. Aleandri was triggering Ms. LaPorte’s OCD by impinging upon her personal

boundaries and that, as a result, Ms. LaPorte was struggling with obsessive thoughts. (Id. ¶ 18–

19.) Ms. Aleandri thought Ms. Laporte was having “obsessive thoughts” about her (Ms. Aleandri)

and responded that this made her concerned. (Id. ¶ 21.) About a week later in August 2021, Ms.

Aleandri told Ms. LaPorte that she would no longer supervise any future clinical hours because

she was concerned that Ms. LaPorte would later accuse her of disability discrimination if she did

not sign off on her clinical hours. (Id. ¶¶ 22–23). Ms. Aleandri also stated that she would provide

Ms. LaPorte with a log sheet of the total hours supervised up to that point. (Id. ¶ 22.)

Between August 25, 2021, and some time in December 2021, Ms. LaPorte was voluntarily

admitted to a psychiatric hospital several times due to her mental health conditions. (Id. ¶ 27.) As

4 Ms. LaPorte avers that these mental health disorders constitute disabilities pursuant to the Americans with

Disabilities Act because “they can be permanent and/or chronic mental health conditions which affect at least one

major life activity including, but not limited to, the periodic inability to concentrate due to intruding, unwanted, and

seemingly unshakeable thoughts.” (ECF No. 8, ¶ 7.) Taking the factual allegations about these disorders as true, the

Court agrees at this juncture that these disorders could constitute as disabilities under the ADA. See Wilson v.

Lenington Home for the Aged, 159 F. Supp. 2d 186, 198–99 (W.D. Pa. 2001) (explaining that depression can constitute

as a disability under the ADA if it creates mental impairment that substantially limits an individual’s major life

activity).

a result of these hospitalizations, Ms. LaPorte was away from work for several weeks. (Id.) After

Ms. LaPorte’s first hospitalization ended in September 2021 her duties at work were modified. (Id.

¶ 28.) For example, Ms. LaPorte was only permitted to participate in team sessions with clients

rather than one-on-one sessions. (Id.)

On December 14, 2021, Ms. Aleandri told Ms. LaPorte that she would not sign off on the

2,553 experiential hours that Ms. LaPorte had obtained under her supervision. (Id. ¶¶ 32–33.) Ms.

Aleandri stated that she was retracting her promise to supervise Ms. LaPorte due to alleged

complaints from clients of purported unprofessional behavior by Ms. LaPorte. (Id. ¶ 34.) On

December 15, 2021, Ms. LaPorte resigned from her employment with Unity, stating that she did

so in order to find a new job where she could earn the clinical hours necessary for her licensure.

(Id. ¶ 39.)

B. Procedural Background

On August 25, 2022, Ms. LaPorte filed this suit under the ADA alleging that Unity and

Ms. Aleandri discriminated against her due to her disabilities. (ECF No. 1.) Ms. LaPorte filed her

First Amended Complaint on September 8, 2022. (ECF No. 8.) Unity and Ms. Aleandri filed a

Motion to Dismiss the First Amended Complaint (ECF No. 17) and an accompanying Brief (ECF

No. 18) on November 17, 2022. Plaintiff filed a Brief in Opposition (ECF No. 20) on December

2, 2022, and a Supplement (ECF No. 21) on December 5, 2022. Defendants filed a Reply Brief on

December 9, 2022 (ECF No. 22). The Motion to Dismiss (ECF No. 17) is ripe for disposition.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6) a court may dismiss a complaint for

“failure to state a claim upon which relief can be granted.” “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements,” are not enough to survive a Rule

12(b)(6) motion. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). Rather, a plaintiff's factual allegations must “raise a right to relief above

the speculative level” and state a plausible claim for relief. Twombly, 550 U.S. at 555.

In reading the complaint, the court should “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.” Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F. 3d

224, 233 (3d Cir. 2008)). “[C]ourts have an obligation in matters before them to view the complaint

as a whole and to base rulings not upon the presence of mere words but, rather, upon the presence

of a factual situation which is or is not justiciable.” Doug Grant, Inc. v. Greate Bay Casino Corp.,

232 F.3d 173, 184 (3d Cir. 2000) (quoting City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,

263 (3d Cir. 1998)).

The Third Circuit further guides lower courts to utilize a three-part framework in analyzing

a 12(b)(6) motion. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). First, the court shall

“identify[] the elements of the claim.” Id. Second, the court shall “review[] the complaint to strike

conclusory allegations.” Id. Third, the court shall “look[] at the well-pleaded components of the

complaint and evaluat[e] whether all of the elements identified in part one of the inquiry are

sufficiently alleged.” Id. If the facts alleged in the complaint “show” that the plaintiff is entitled to

relief, the court should deny the motion to dismiss. See Fowler, 578 F.3d at 210–11.

In ruling on a motion to dismiss, the only documents a court may consider are “the

complaint, attached exhibits, matters of public record, and undisputedly authentic documents not

attached to the complaint if the complainant's claims are based on those documents.” Panthera

Rail Car LLC v. Kasgro Rail Corp., 985 F. Supp. 2d 677, 683 (W.D. Pa. 2013) (citing Mayer v.

Belichick, 605 F.3d 223, 230 (3d Cir. 2010)). Finally, a court evaluating a motion to dismiss must

“draw on its judicial experience and common sense.” United States ex rel. Bookwalter v. UPMC,

946 F.3d 162, 177 (3d Cir. 2019) (quoting Iqbal, 556 U.S. at 679).

III. DISCUSSION

Defendants move to Dismiss all five Counts of the First Amended Complaint. (ECF No.

17, ¶ 5.) In response, Ms. LaPorte voluntarily abandoned Counts III and IV of the First Amended

Complaint. (ECF No. 20, at 2.) Accordingly, the Court DISMISSES Counts III and IV with

prejudice. The Court now considers the Defendants’ Motion as to the remaining Counts.

A. Count I: Denial of Valuable Consideration Related to Employment Agreement

Claim as Asserted Against Unity

Ms. LaPorte asserts under Count I that Unity violated the ADA by “intentionally

discriminating against plaintiff by revoking its promise to sign off on clinical hours she completed

during her employment because of her disability and/or perceived disability and/or her request for

an accommodation for her disability.” (ECF No. 8, ¶ 52.) Defendants move to dismiss this Count

for failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6).

(ECF No. 17, ¶ 6.) More specifically, Defendants assert that Ms. LaPorte did not plead sufficient

facts to satisfy the third element of a prima facie case of disability discrimination. (ECF No. 18, at

16.)

To establish a prima facie case of discrimination, plaintiff must show that she: (1) is a

disabled person within the meaning of the ADA; (2) is qualified to perform the essential functions

of her job, with or without reasonable accommodations; and (3) has suffered an otherwise adverse

employment decision as a result of discrimination. Williams v. Phila. Hous. Auth. Police Dep’t,

380 F.3d 751, 761 (3d Cir. 2004), superseded by statute on other grounds as stated in Robinson v.

First State Cmty. Action Agency, 920 F.3d 182, 187–89 & n.30 (3d Cir. 2019); Hatch v. Franklin

Cty., 755 Fed. Appx. 194, 198 (3d Cir. 2019). At this stage in litigation, “a plaintiff is not required

to establish the elements of a prima facie case but instead, need only put forth allegations that

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

element[s].’” Fowler, 578 F.3d at 213 (quoting Graff v. Subbiah Cardiology Associates, Ltd., No.

08–207, 2008 WL 2312671 (W.D. Pa. June 4, 2008)); Phillips, 515 F.3d at 234. Thus, the Court

must determine whether Ms. LaPorte’s factual allegations raise a reasonable expectation that

discovery will reveal evidence of the elements necessary to establish a prima facie case disability

discrimination.

For purposes of the Motion to Dismiss, Defendants do not contest that the first two prongs

are sufficiently alleged. (ECF No. 18, at 16.) Defendants argue, however, that Ms. LaPorte has not

sufficiently alleged the basis for the third prong required for prima facie case of discrimination

under the ADA: that she suffered adverse employment action within the scope of her employment

with Unity. (Id.)

Defendants aver that “revoking [the] promise to sign off on clinical hours she completed

during her employment” (ECF No. 8, ¶ 52) is not an adverse employment action because “Unity

had no authority to affect the supervisor/supervisee relationship for licensure, nor did such action

affect Plaintiff’s employment with Unity.” (ECF No. 18, at 16.) Defendants point to the fact that

49 Pa. Code § 49.3(1)-(2), setting the qualifications for supervisors, requires that the supervisor be

an individual holding a license as a professional counselor and since “[a]n entity is not a licensee

and cannot be a supervisor” (id. at 17), Defendants assert that “Ms. Aleandri is expressly prohibited

from delegating supervisory responsibilities to Unity.” (Id.)

Defendants further assert that “Plaintiff’s clinical experience with Ms. Aleandri was

undertaken outside the scope of her employment with Unity as a Family Based Therapist.” (Id.)

Defendants note that Ms. Aleandri was Ms. LaPorte’s supervisor only with respect to Plaintiff’s

clinical experience to obtain licensure and assert that “Unity lacked any legal authority to direct

Ms. Aleandri to undertake any action with respect to the supervisory relationship.” (Id.) Thus, “any

decisions or actions taken by Ms. Aleandri that affected Plaintiff’s clinical experience, were not

adverse actions affecting her employment with Unity.” (Id. at 18 (emphasis added).) Defendants

support this argument by noting that Ms. LaPorte’s employment with Unity continued for six

months after Ms. Aleandri’s supervision ended. (Id.)

In response, Ms. LaPorte asserts that she did sufficiently allege facts that set forth a

plausible case of disability discrimination. (ECF No. 20, at 9.) The adverse employment action

Ms. LaPorte claims she suffered was her ability to earn clinical hours during her employment with

Unity. (Id. at 10.) Ms. LaPorte highlights Third Circuit precedent stating that adverse employment

actions include “decision[s] causing a significant change in benefits.” (Id. (citing Suders v. Easton,

325 F. 3d 432, 434 (3d Cir. 2003), vacated on other grounds by Pennsylvania State Police v.

Suders, 542 U.S. 129 (2004); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998);

Faragher v. City of Boca Raton, 524 U.S. 775, 790 (1998)).) Ms. LaPorte further argues that the

ADA “is a federal anti-discrimination law which, like Title VII, invokes vicarious liability upon

an employer for the wrongdoing of its supervisory employees.” (Id. at 11–12 (citing Vance v. Ball

State Univ., 570 U.S. 421, 451 (2013) (Ginsburg, J., dissenting)).) Thus, Ms. LaPorte asserts that

she fulfilled the pleading requirements because the factual allegations are that Ms. Aleandri, acting

as her supervisor, discriminated against her and caused a significant change in her employment

benefits by denying her supervision of her clinical hours. (Id. at 12.)

In their Reply Brief, Defendants assert that Unity is not vicariously liable for actions

incident to the supervisory relationship between Ms. Aleandri and Ms. LaPorte. (ECF No. 22, at

6.) Defendants again point to the Licensed Professional Counselor licensure statute, which

Defendants argue serves the purposes of “(1) establishing Ms. Aleandri (the supervisor) as a

gatekeeper, exercising professional judgment to ensure only those individuals who are properly

trained and equipped are licensed to provide unsupervised counseling services to the public, and

(2) insulating the supervisor from influence of third parties seeking to control the relationship.”

(Id. at 6–7 (citing 49 Pa. Code §§ 49.1-49.80).) Moreover, Defendants assert that “[a]n employer

will be vicariously liable for the conduct of an employee only if the conduct was committed while

acting within the scope of her employment”—meaning that Ms. Aleandri’s alleged actions must

have been made in her employment capacity as Unity’s Clinical Director. (Id. at 8 (citing

Burlington Indus., 524 U.S. at 756).) Defendants argue that it is not alleged that the supervising

relationship between Ms. Aleandri and Ms. LaPorte was within the scope of Ms. Aleandri’s

employment and, without vicarious liability, Ms. LaPorte cannot claim that she suffered an adverse

employment action by Unity for the actions of Ms. Aleandri. (Id.)

The Court concludes that, at this point in litigation, Ms. LaPorte has met the pleading

standard and the Motion to Dismiss Count I should be DENIED. Specifically, the Court concludes

that the questions relating to adverse employment action and vicarious liability—including

whether the opportunity to earn supervised clinical hours constituted an employment benefit

(especially in light of the alleged commitments made by Holland when Ms. LaPorte was first hired)

and whether Ms. Aleandri’s supervision of Ms. LaPorte’s clinical hours was within the scope of

Ms. Aleandri’s employment—depend on certain factual findings that are not yet in the record. As

stated, the only documents a court may consider at this stage are “the complaint, attached exhibits,

matters of public record, and undisputedly authentic documents not attached to the complaint if

the complainant's claims are based on those documents.” Panthera Rail Car, 985 F. Supp. 2d at

683. Reviewing these documents and taking all allegations in the Complaint as true and in the light

most favorable to the Plaintiff, the Court concludes that Ms. LaPorte has alleged sufficient facts—

including that being able to earn supervised clinical hours if and while she worked at Unity, which

was promised to her at the time of hire by Unity (ECF No. 8, ¶¶ 12–13) constitutes an employment

benefit—to state a claim under Count I, and certainly create a “reasonable expectation that

discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213–14. And in any

event, Ms. LaPorte pleads that the opportunity to earn the necessary credits was a benefit of her

employment by Unity, promised to her by Unity, and that that benefit, so defined, was removed

from her while she was employed by Unity.

Ms. LaPorte has also specifically alleged that she has qualifying disabilities, that she is

qualified for her job, and that she experienced adverse employment action (losing the employment

benefit of earning supervised clinical hours while a Unity Employee) due to illegal disability

discrimination by her supervisor, Ms. Aleandri, who was employed by Unity. The dispute about

whether the loss of this benefit constitutes an adverse employment action attributable to Unity

through vicarious liability is also one wrapped up in additional facts that need to be developed on

the record in discovery. For that reason, the Court DENIES the Motion to Dismiss Count I.

B. Count II: Constructive Discharge Claim as Asserted Against Unity

Ms. LaPorte asserts under this Count that Unity violated the ADA “by intentionally

discriminating against [her] by constructively discharging [her] by creating a hostile work

environment.” (ECF No. 8, ¶ 58.) Ms. LaPorte asserts that Unity created the hostile work

environment “by refusing an important benefit promised to her (i.e. the ability to earn supervised

clinical hours towards her licensure as a Professional Counselor), because she suffered from a

disability and/or perceived disability and/or because she sought an accommodation for her

disability.” (Id. ¶ 59.) Defendants move to dismiss this Count for failure to state a claim upon

which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 17, ¶ 6.) Specifically,

Defendants assert that Ms. LaPorte has failed to sufficiently allege that she was constructively

discharged by Unity (ECF No. 18, at 18.)

To establish a constructive discharge arising from disability discrimination in employment,

plaintiff must show that the employer “knowingly permitted” the alleged conditions of

discrimination in employment and that such conditions were “so intolerable that a reasonable

person subject to them would resign.” Gross v. Exxon Office Sys. Co., 747 F. 2d 885, 888 (3d Cir.

1984). The Third Circuit “has identified various factors that support a claim of constructive

discharge, including being ‘threatened with discharge,’ being ‘urge[d] ... [to] resign or retire,’

being demoted, suffering a reduction in pay or benefits, being ‘involuntarily transferred to a less

desirable position,’ having job responsibilities ‘altered,’ and being ‘given unsatisfactory job

evaluations.’” Lewis v. Univ. of Pennsylvania, 779 Fed. Appx. 920, 922 (3d Cir. 2019) (quoting

Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993)). As noted by the

Defendants, the Third Circuit has also “expressly noted that ‘a reasonable employee will usually

explore . . . alternative avenues thoroughly before coming to the conclusion that resignation is the

only option.” (ECF No. 18, at 19 (citing Clegg v. Falcon Plastics, Inc., 174 F. App’x 18, 27 (3d

Cir. 2006)).)

Defendants assert that none of the factors identified by the Third Circuit, referred to as the

Clowes factors, are alleged by Ms. LaPorte to support a claim of constructive discharge: for

example, Ms. LaPorte does not allege that she was threatened with discharge, was urged to resign,

was demoted, suffered a reduction in pay, was transferred to a less desirable position, etc. (Id. at

20.) Of the allegations Ms. LaPorte does raise—that Ms. Aleandri ended her supervision of Ms.

LaPorte due to Ms. LaPorte’s disability—Defendants assert that they do not rise to the level of

“severe and pervasive harassment” necessary to establish a hostile work environment claim. (Id.

at 22.) In response, Ms. LaPorte asserts that “the retraction of the benefit of earning clinical hours

created a hostile work environment given that her stated goal when hired was to earn clinical hours

toward her licensure.” (ECF No. 20, at 13.) Ms. LaPorte also asserts that “[n]o person on her

predicament would have stayed employed by Unity”—which she says amounts to a constructive

discharge. (Id.)

In their Reply Brief, Defendants highlight that Ms. LaPorte “failed to explore any

alternative avenues to obtain the remaining 447 clinical hours after the alleged revocation of a

promise to sign off on the 2,553 hours.” (ECF No. 22, at 9.) Specifically, Defendants point to the

fact that in the time after early June, 2021, when Ms. Aleandri ended her supervision, and before

Ms. LaPorte resigned on December 15, 2021, Ms. LaPorte did not make any effort to find another

supervisor at Unity and “made no inquiry to Unity about the effect of [Ms. Aleandri’s] decision

on her ‘ability to obtain clinical hours.’” (Id.) Instead of exploring these alternative avenues, she

continued to work for Unity between early June, 2021 (when Ms. Aleandri’s supervision ended)

and December 15, 2021 (when Ms. LaPorte “simply resigned”). (Id. at 9.)

Upon consideration of these arguments and taking all factual allegations in the First

Amended Complaint as true, the Court concludes that Ms. LaPorte has failed to state a claim of a

hostile work environment, let alone meeting the heightened bar required for stating a claim of

constructive discharge. See Wilson v. Blockbuster, Inc., 571 F.Supp.2d 641, 649 (E.D. Pa. 2008)

(citing Spencer v. Wal–Mart Stores, Inc., 469 F.3d 311, 317 n.4 (3d Cir.2006)) (“To prove

constructive discharge, the plaintiff must demonstrate a greater severity or pervasiveness of

harassment than the minimum required to prove a hostile working environment.”). When a plaintiff

alleges a “compound hostile work environment constructive discharge” claim, the plaintiff must

“make an additional showing beyond that required for a simple hostile environment claim.” Boandl

v. Geithner, 752 F. Supp. 2d 540, 573 (E.D. Pa. 2010) (citing Clowes, 991 F.2d at 1161). Ms.

LaPorte asserts a compound claim—that she was constructively discharged due to a hostile work

environment—thus, her allegations need to first give rise to the reasonable expectation that the

elements of a hostile work environment can be established through discovery. See Fowler, 578

F.3d at 213–14.

A hostile work environment claim is actionable only if it is so severe or pervasive that it

“alters the conditions of [the victim’s] employment” and creates an “abusive working

environment.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (quotation marks and

internal citations omitted). A court must consider the “totality of the circumstances,” including

“the frequency of the discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an

employee’s work performance.” Thomas v. Bronco Oilfield Servs., 503 F. Supp. 3d 276, 298 (W.D.

Pa. 2020) (internal quotation marks omitted) (quoting Miller v. Thomas Jefferson Univ. Hosp., 565

F. App’x 88, 93 (3d Cir. 2014)). The environment must be objectively hostile, not only hostile in

the plaintiff’s view. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993); Breeden, 532 U.S. at

270–71. Finally, “[s]evere or pervasive” is disjunctive, meaning that a sufficiently extreme but

nonetheless isolated incident can create a hostile work environment. Castleberry v. STI Grp., 863

F.3d 259, 265 (3d Cir. 2017). The Third Circuit further guides that “the advent of more

sophisticated and subtle forms of discrimination requires [the court to] analyze the aggregate effect

of all evidence and reasonable inferences therefrom, including those concerning incidents of

facially neutral mistreatment, in evaluating a hostile work environment.” Cardenas v. Massey, 269

F.3d 251, 261 (3d Cir. 2001).

Here, Ms. LaPorte's allegations supporting her alleged hostile work environment claim are

the same allegations she relies on for the other claims in this case, including the intentional

discrimination claim brough pursuant to the ADA (Count I). In this regard, it logically follows that

Ms. LaPorte’s hostile work environment/constructive discharge claim is, if actionable, nonetheless

subsumed in her other claims of discrimination. Specifically, Ms. LaPorte alleged that (1) Ms.

Aleandri told Ms. LaPorte that she would no longer supervise her clinical hours because she was

concerned that Ms. LaPorte would later accuse her of disability discrimination if she did not sign

off on her clinical hours (ECF No. 8, ¶ 22–23); (2) After Ms. LaPorte’s first hospitalization ended

in September 2021, she was only permitted to participate in team sessions with clients rather than

one-on-one sessions (id. ¶ 28); and (3) On December 14, 2021, Ms. Aleandri told Ms. LaPorte that

she would not sign off on the 2,553 hours that Ms. LaPorte had already obtained under her

supervision due to alleged complaints from clients of purported unprofessional behavior (id. ¶ 32–

34). Ms. LaPorte asserts that she resigned from employment the next day. (Id. ¶ 39.)

Even if proven true, the Court concludes that these allegations—standing alone or in

aggregate—cannot plausibly establish a hostile work environment claim. Specifically, the

discriminatory conduct alleged is not frequent in the sense that this incident only happened once

with one supervisor, and, further, the discriminatory conduct does not involve physical threats,

humiliating or offensive language, and does not interfere with Ms. LaPorte’s work performance in

that she could continue doing her job. Cf. Abramson v. William Paterson College of N.J., 260 F.3d

265, 279–80 (3d Cir. 2001) (finding that pervasive and severe conduct, including unprecedented

monitoring of the plaintiff's conferences and absences; charging the plaintiff a sick day for taking

off on a Jewish holiday; criticizing the plaintiff for lack of availability during the Sabbath; and

scheduling meetings during Jewish holidays, was so harmful that it interfered with the plaintiff’s

employment conditions). Further, Ms. LaPorte does not allege that she was subjected to targeted

discriminatory conduct such as offensive comments or name calling. Cf. Prettyman v. LTF Club

Operations Co., No. 18-00122, 2018 WL 5980512, *6 (E.D. Va. Nov. 13, 2018) (Describing how

the plaintiff's co-workers directly called the plaintiff a “Jewish American Princess” and subjected

her to several other derogatory comments about “Jewish Money”); Bronco Oilfield Services, 503

F. Supp. 3d at 288–96 (Describing how the plaintiff's co-workers repeatedly directed the n-word

at the plaintiff, in some instances when the plaintiff was alone with the co-worker who used the

racial slur).

Having failed to meet the lower (but nonetheless significant) burden of establishing a

hostile work environment, the Court concludes that Ms. LaPorte has also failed to sufficiently

create a plausibility that she was constructively discharged due to the hostile work environment.

Specifically, Ms. LaPorte has not raised any allegations that could establish that Unity “knowingly

permit[ted] conditions of discrimination in employment so intolerable that a reasonable person

subject to them would resign.” See Spencer, 469 F.3d at 317 n. 4. Thus, the Court concludes that

Ms. LaPorte has not reached the higher bar required to establish a claim of constructive discharge

under this construct.

While Ms. LaPorte appears to seek to allege a compound hostile work environment

constructive discharge claim here and for the reasons noted falls short of the mark, the Third

Circuit has recognized that “[a] plaintiff can prove constructive discharge independent of hostile

work environment based on actions of a supervisor.” Boandl, 752 F. Supp. 2d at 573 (citing

Stremple v. Nicholson, 289 Fed. Appx. 571, 573—74 (3d Cir. 2008) (affirming a decision to reject

a hostile work environment claim but concluding that a constructive discharge claim was stated

where the plaintiff was “forced out of his position”)). Here, Ms. LaPorte’s allegations based on

Ms. Aleandri’s actions alone (that is outside of a viable “hostile environment” setting) would need

to show that the decision not to sign off on her previously earned hours “so degraded [Ms.

LaPorte’s] professional life that a trier of fact could conclude that [she] was constructively

discharged.” Boandl, 752 F. Supp. 2d at 574. As currently alleged, the actions by Ms. Aleandri do

not support a claim of constructive discharge based on Ms. Aleandri’s actions alone. Specifically,

the refusal to sign off on the earned clinical hours does not appear to meet any of the Clowes factors

identified by the Third Circuit: Ms. LaPorte’s supervisors did not demote her, reduce her pay, urge

her to resign, threaten her with termination, transfer her to a different position, or give her

unsatisfactory job evaluations. See Clowes, 991 F.2d at 1161.

Beyond the fact that Ms. Aleandri’s actions as pled do not meet the Clowes factors, the

Court also notes that Ms. LaPorte does not allege any effort on her part to explore alternative

avenues before resigning, particularly since she pleads that she resigned only one day after she

says that she was informed that Ms. Aleandri would not sign off on the hours already “earned” via

supervision. Nor does she plausibly allege that it would have been pointless for her to have

explored alternatives to resignation with Unity before her doing so. This is particularly relevant

since presumably, by her resigning without taking any efforts within Unity to secure an alternative

“sign off” on the previously supervised hours, or to enlist Unity management in resurrecting the

sign off by Ms. Aleandri, she cemented “losing” those hours by leaving Unity.

Since Third Circuit law places significance on this point, the lack of any allegations that

Ms. LaPorte did explore alternative avenues before resigning makes it far less plausible that she

will be able to make out a valid claim of constructive discharge. See Clowes, 991 F.2d at 1161

(“As other courts of appeals have noted, a reasonable employee will usually explore such

alternative avenues thoroughly before coming to the conclusion that resignation is the only

option.”). That said, while it appears that Ms. LaPorte would have a high bar to surmount to

plausibly allege the requisite elements for a constructive discharge claim in the overall

circumstances that she has already pled, the Court cannot conclusively say that it would be futile

for her to do so. In that light, and for the reasons stated above, the Court GRANTS the Defendants’

Motion to Dismiss Count II, but DISMISSES Court II without prejudice and with leave to amend.

C. Count V: Detrimental Reliance Claim as Asserted Against Ms. Aleandri

Ms. LaPorte asserts under this Count that Ms. Aleandri “unjustly revoked her promise to

supervise plaintiff’s hours and support submission of those hours to the Board of licensure” and

that Ms. LaPorte had detrimentally relied on this promise when she “remained employed by

defendant Unity for over two years with the expectation that she would have an opportunity [to]

earn significant supervised clinical hours towards the 3,000 supervised clinical hours she was

required to complete.” (ECF No. 8, ¶¶ 77–79.) Defendants move to dismiss this Count for lack of

subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and, alternatively, for failure to

state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). (ECF No. 17,

¶ 6.)

a) Subject Matter Jurisdiction

First, Defendants assert that Count V of the First Amended Complaint lacks both ripeness

and standing. (ECF No. 17, ¶ 11.) Federal Rule of Civil Procedure 12(b)(1) provides that a party

may bring a motion to dismiss for lack of subject matter jurisdiction. A motion to dismiss for want

of standing is also properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional

matter. See St. Thomas–St. John Hotel & Tourism Ass'n v. Gov't of the U.S. Virgin Islands, 218

F.3d 232, 240 (3d Cir. 2000) (“The issue of standing is jurisdictional.”); Kauffman v. Dreyfus

Fund, Inc., 434 F.2d 727, 733 (3d Cir. 1970) (“[W]e must not confuse requirements necessary to

state a cause of action ... with the prerequisites of standing.”). In considering Defendants’ Motion

in these regards, , the Court must accept as true all material allegations set forth in the complaint,

and must construe those facts in favor of the nonmoving party. See Warth v. Seldin, 422 U.S. 490,

501 (1975); Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir.2003).

1. Legal Standard for Standing and Ripeness

On a motion to dismiss for lack of standing, the plaintiff “‘bears the burden of establishing’

the elements of standing, and ‘each element must be supported in the same way as any other matter

on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence

required at the successive stages of the litigation.’” FOCUS v. Allegheny County Court of Common

Pleas, 75 F.3d 834, 838 (3d Cir.1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

(1992)). However, “general factual allegations of injury resulting from the defendant's conduct

may suffice.” Lujan, 504 U.S. at 561. Standing requires three elements: (1) “the plaintiff must have

suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and

particularized, and (b) ‘actual or imminent, not ‘conjectural’ or ‘hypothetical’”; (2) there must be

“a causal connection between the injury and the conduct complained of”; and (3) it must be

‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable

decision.’” Lujan, 504 U.S. 555, 560–61 (1992) (internal citations omitted).

As for ripeness, the Supreme Court articulated a two-step test for determining whether a

claim is ripe—meaning that it is “of sufficient immediacy and reality” to justify judicial resolution,

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)— (1) “the fitness of

the issues for judicial decision,” and (2) “the hardship to the parties of withholding court

consideration.” See Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967).

2. Discussion

Defendants argue that Count V is not ripe for adjudication because “Plaintiff has yet to

perform conditions precedent” to the agreement, and, thus, no injury has occurred yet. (ECF No.

18, at 6.) More specifically, Defendants submit that “[i]n order to obtain a licensure, (which Ms.

LaPorte seeks) the supervisee (Ms. LaPorte) must submit an application to the State Board of

Social Workers, Marriage and Family Therapists and Professional Counselors (“Board”), which

shall include supervisor’s verification of the supervisee’s completion of 3,000 clinical hours.” (Id.

at 6–7.) Defendants aver that “Ms. Aleandri’s responsibility to verify Plaintiff’s clinical hours

cannot arise until Plaintiff has completed the 3,000 hours of clinical experience and prepared an

application for licensure to the Board.” (Id. at 7.) Until that time, Defendants submit, Ms. LaPorte’s

claim against Ms. Aleandri is unripe. For the same reason, Defendants also argue that Plaintiff

does not have standing to bring this claim because Plaintiff “has yet to suffer an injury” and has

not shown that “an injury is imminent.” (Id.)

In response, Ms. LaPorte argues that due to Defendants’ actions, she will be forced to

“repeat 2,553 clinical hours which took her 1.5 years to complete at Unity” in order to be at the

same point in seeking her licensure as she was before Defendants’ actions. (ECF No. 20, at 15.)

Thus, Ms. LaPorte argues that the delay in advancing her career goals and the consequential affect

on her future plans constitutes an injury in fact for standing purposes and makes her claim ripe.

(Id.)

In their Reply Brief, Defendants again argue that Ms. LaPorte has not alleged a concrete

or particularized injury that is actual or imminent. (ECF No. 22, at 5.) Specifically, Defendants

argue that Plaintiff has “only” alleged as her injury that she needs to now plan to complete 3,000

hours of supervised experience instead of 447 hours, which Defendants assert is not a redressable

injury. (Id.) Defendants aver that any intervention by this Court “relies on entirely speculative

circumstances because if [Ms. LaPorte] fails to complete any of the remaining hours prior to her

statutory deadline, any harm realized by the Plaintiff is of her own accord and not caused by Ms.

Aleandri, rendering moot any decision by this Court.” (Id.)

The Court agrees with Ms. LaPorte on this point and concludes that the Court has subject

matter jurisdiction over this claim. Based on the First Amended Complaint, Mr. Holland expressly

agreed that Ms. LaPorte’s could earn 3,000 supervised clinical hours while employed at Unity and

that a Unity employee would supervise and sign off on those hours. (ECF No. 8, ¶ 13.) As a result

of this agreement, Ms. LaPorte worked at Unity for over a year and a half and in that time earned

2,553 clinical hours. (Id. ¶¶ 17, 31) If Ms. LaPorte had not accepted employment with Unity, she

could have sought out another job that allowed her to earn those hours. Thus, the allegation that

Ms. Aleandri refused to sign off on the 2,553 does result in a concrete and tangible harm to Ms.

LaPorte—namely, the loss of 2,553 clinical experiential hours. (Id. ¶¶ 32–33.)

Thus, the Court concludes that Ms. LaPorte has sufficiently established that she suffered

an injury in fact (the loss of 2,553 clinical hours earned pursuant to an agreement made at the time

of hire) that is concrete, particularized, and not hypothetical in that Ms. Aleandri did refuse to sign

off on the hours and, as a result of this action, Ms. LaPorte necessarily will need to repeat the 2,553

hours in order to get back to the place she was in before this alleged conduct. See Lujan, 504 U.S.

at 560–61. Ms. LaPorte has also sufficiently alleged a causal connection between this injury and

the disability discrimination she alleges motivated Ms. Aleandri’s refusal to sign off on her hours,

and Ms. LaPorte has established that this injury can be redressed by a favorable decision by the

Court by putting her back in the position she would have been if Ms. Aleandri did not refuse to

sign off on these earned hours, or otherwise compensating her for the injury caused by what she

effectively alleges was the loss of a year and a half of her life. See id. Finally, the Court also

concludes that for these same reasons, the impact to Ms. LaPorte is current and the claim is not

unripe. Thus, the Court concludes Ms. LaPorte has standing and that the claim is ripe and thus

DENIES Defendants’ Motion to Dismiss due to lack of subject matter jurisdiction.

b) Failure to State a Claim

Defendants argue that if Count V is not dismissed for lack of subject matter jurisdiction, it

must be dismissed for failure to state a claim. (ECF No. 17, ¶ 6.) Specifically, Defendants argue

that “Plaintiff cannot establish detrimental reliance as to Ms. Aleandri, where the alleged promise

to supervise was made by Unity, not Ms. Aleandri, and where Unity has no authority to direct the

supervisory relationship.” (ECF No. 18, at 12.) The parties agree that the elements of a detrimental

reliance claim (also known as promissory estoppel) are (1) a promise to a promisee, (2) which the

promisor should reasonably expect will induce action by the promise, (3) which does induce

action, and (4) which should be enforced to prevent injustice to the promise. (ECF No. 18, at 11

(citing Fedun v. Mike’s Café, Inc., 204 A.2d 776, 782 (Pa. Super. 1964)); ECF No. 20, at 15 (citing

Burton Imaging Grp. v. Toys “R” Us, Inc., 502 F. Supp. 2d 434, 438 (E.D. Pa. 2007)).)

Here, Ms. LaPorte alleges that (1) Ms. Aleandri made a promise to “supervise [Ms.

LaPorte’s] clinical hours in furtherance of her licensure to be a Professional Counselor” (ECF No.

8, ¶ 76); (2) that Ms. Aleandri “expected that her promise would induce action on the part of [Ms.

LaPorte] including but not limited to working for defendant Unity and staying employed with

defendant Unity . . .” (id., ¶ 77); (3) that this promise did induce Ms. LaPorte to “remain[]

employed by defendant Unity for over two years . . .” (id, ¶ 78); (4) that Ms. Aleandri “unjustly

revoked her promise” and this “injustice can only be avoided by enforcing [the] promise.” (id, ¶¶

79–81.) Defendants assert that even when taken as true, these allegations are not sufficient to

establish a claim of detrimental reliance because “it was Unity, not Ms. Aleandri, that allegedly

made a promise as to clinical supervision.” (ECF No. 18, at 12.)

More specifically, Defendants highlight that Ms. LaPorte alleges that Unity made the

promise that “‘she would be able to have someone at [D]efendant Unity’s facility supervise and

verify’ her clinical experience for the purpose of obtaining licensure.” (Id. (quoting ECF No. 8, ¶

65) (emphasis in original).) Defendants first assert that this statement does not constitute a promise

related to employment, but rather “merely suggests that Plaintiff’s pursuit of licensure would not

conflict with her employment obligations to Unity.” (Id.) Defendants then assert that even if this

this (rather strained) interpretation of the relevant statement did constitute a bargained-for-

exchange, “such agreement creates no legal obligation for Ms. Aleandri to perform in accordance

with the agreement because Ms. Aleandri was not acting as an agent of Unity, nor was she a party

to the contract.” (Id. at 13.) Defendants aver that the agreement between Unity and Ms. LaPorte

“cannot inure a duty upon Ms. Aleandri” and that Ms. Aleandri had “the authority to severe the

supervisory relationship if a conflict of interest ar[ose].” (Id.) Finally, Defendants assert that Ms.

LaPorte “failed to allege that by accepting employment with Unity, based on the promise of clinical

supervision, she abandoned other comparable employment opportunities.” (Id. at 13–14 (citing

Weavertown Transp. Leasing, Inc. v. Moran, 834 A.2d 1169, 1175 (Pa. Super. 2003)).)

Defendants also assert that this Count should be dismissed because the Court “cannot direct

specific performance where it would require Ms. Aleandri to violate her statutory and ethical

duties.” (Id. at 8.) Specifically, Defendants point to the tenets of the American Counseling

Association (ACA), which imputes an ethical duty to Ms. Aleandri to be “‘accurate, honest, and

objective’ in reporting professional activities.” (Id. at 9 (citing ACA Code § C.6.b).) Defendants

aver that ordering Ms. Aleandri to reinstate a promise to sign off on Ms. LaPorte’s hours and

continue to supervise her in future clinical hours, would undermine a supervisor’s statutory

authority to terminate the supervisory relationship. (Id. (citing 49 Pa. Code § 49.14(6)).)

Defendants finally assert that Count V should be dismissed because Ms. LaPorte “cannot

establish a right to specific performance for relief because [she] has yet to satisfy conditions

precedent to Ms. Aleandri’s certification of the clinical hours.” (Id. at 14 (“It is well established

that the party desiring to enforce performance must regard her ‘part of the contract as a condition

precedent,’ and must ‘perform or offer performance’ in order to proceed to enforce the contract

through specific performance.” (quoting Cohn v. Weiss, 51 A.2d 740, 744 (Pa. 1947))).) Similar

to the ripeness argument, Defendants assert that “Plaintiff seeks specific performance to occur at

an unspecified and indefinite time in the future, ‘when Plaintiff submits proof of her clinical hours

to the Board for licensure.’” (Id.)

In her Response Brief, Ms. LaPorte only addresses the detrimental reliance claim in

response to the Motion to Dismiss for lack of subject matter jurisdiction and does not directly

address Defendants’ arguments regarding the Motion to Dismiss Count V for failure to state a

claim. (See ECF No. 20.)

Having considered the allegations in the First Amended Complaint and all the arguments

asserted by Defendants, the Court reaches the following conclusions. First, the Court concludes

that the question of whether this Count would be requiring Ms. Aleandri to violate her ethical duty

depends on the determination of factual issues regarding Ms. Aleandri’s authority as a supervisor

and her basis for refusing to sign off on the hours performed and to supervise future hours. These

factual disputes would need to be developed and resolved through discovery. Next, the Court

concludes that for the reasons previously articulated, Ms. Aleandri’s refusal to sign off on clinical

hours that have already been completed makes it such that Ms. LaPorte will necessarily need to

repeat 2,553 hours to obtain her licensure. There are factual allegations sufficient to support the

conclusion that the agreement between Ms. Aleandri and Ms. LaPorte was that Ms. LaPorte would

complete clinical hours and Ms. Aleandri would supervise and sign off on completed hours. (ECF

No. 8, ¶¶ 16–17.) That said, the fact that Ms. LaPorte completed some clinical hours means that

she has fulfilled the condition precedent to the agreement at least to that extent. Again, any factual

issue regarding Ms. Aleandri’s authority and basis to refuse signing off on completed clinical hours

would need to be developed in discovery. Thus, the Court concludes that these arguments do not

warrant a dismissal for failure to state a claim.

The Court does agree with Defendants that based on the allegations in the First Amended

Complaint, Ms. Aleandri was not the one who made the promise connecting supervision of clinical

hours to employment with Unity. As alleged, before accepting the position with Unity, Ms.

LaPorte informed Mr. Holland, her interviewer, that she wanted to work for Unity “so she could

obtain the clinical hours in pursuit of her licensure.” (ECF No. 8, ¶ 12.) In response, Mr. Holland

told Ms. LaPorte that “someone” within Unity would be willing to supervise her clinical hours if

she were to accept employment with Unity. (Id. ¶ 13.) Relying on this statement, Ms. LaPorte

accepted employment with Unity. (Id. ¶ 15.) Based on these allegations, it has not been shown that

Ms. Aleandri was in any way personally involved in—or even aware of—this agreement and, thus,

Ms. LaPorte’s reliance on this promise cannot be attributed to Ms. Aleandri.

Moreover, as alleged, Ms. LaPorte did not ask Ms. Aleandri to supervise her clinical hours

until a couple of weeks into her employment. (Id. ¶ 16.) Ms. LaPorte alleges that Ms. Aleandri

“agreed to do so as represented by Mr. Holland” but does not specifically allege that Ms. Aleandri

in anyway tied her willingness to Ms. LaPorte’s employment with Unity. (Id.) Thus, there are not

sufficient factual allegations to support the claim that Ms. Aleandri “expected that her promise

would induce action on the part of [Ms. LaPorte] including but not limited to working for defendant

Unity and staying employed with defendant Unity . . .” (ECF No. 8, ¶ 77) nor the claim that Ms.

Aleandri’s promise did induce Ms. LaPorte to “remain[] employed by defendant Unity for over

two years (id., ¶ 78). But, the Court cannot conclusively say that these shortcomings could not be

cured/cleared up by further amendment. Thus, the Court DISMISSES this Count without

prejudice.

IV. LEAVE TO AMEND

The Court dismisses Count II and Count V without prejudice because, under Third Circuit

precedent, “district courts must offer amendment [in civil rights cases]—irrespective of whether it

is requested—when dismissing a case for failure to state a claim unless doing so would be

inequitable or futile.” Mulllin v. Balicki, 875 F.3d 140, 151 (3d Cir. 2017) (quoting Fletcher-

Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007)). Although

Defendants argue that “[f]urther amendment by Plaintiff would be futile as there are no facts that

could give rise to any claim” the Court concludes that the circumstances are not such that

amendment of these Counts would necessarily be futile—such as when the complaint would

facially be time-barred, see Jackson v. Washington Auto Mall, No. 20-cv-00367, 2020 WL

1974764, at *1 & n.1 (W.D. Pa. Apr. 24, 2020)—or that allowing amendment would be

inequitable. Thus, the Court concludes that Count II and Count V are dismissed without prejudice

and Plaintiff is GRANTED leave to amend if she so desires, and believes that she can plausibly

do so under prevailing law. But, in light of the facts that Ms. LaPorte has already amended once,

and did not seek leave to amend in the face of the Motion to Dismiss, the Court also concludes that

this opportunity will be the last opportunity for such amendatory activity, absent a change in

prevailing law or the discovery of facts not now known or knowable.

V. CONCLUSION

For the reasons set out above, the Court DENIES Defendants’ Motion to Dismiss Count I;

GRANTS Defendants’ Motion to Dismiss Counts II and V of the First Amended Complaint; and

GRANTS Defendants’ Motion to Dismiss Counts III and IV, as they have been voluntarily

abandoned. Counts III and IV are dismissed with prejudice. Counts II and V are dismissed without

prejudice and Plaintiff may file an Amended Complaint as to these Counts within twenty-one (21)

days of the date of this Order, if she so desires and can plausibly do so under prevailing law. If

such is not so filed, the dismissals of Count II and Count V shall then be converted to dismissals

with prejudice without further notice or Order.

s/ Mark R. Hornak

Mark R. Hornak

Chief United States District Judge

Dated: June 21, 2023