MORROW v. SOUTH SIDE AREA SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DENISE L. MORROW, )

` )

Plaintiff, )

) Civil Action No. 2:22-1142

v. )

)

SOUTH SIDE AREA SCHOOL ) Judge Cathy Bissoon

DISTRICT, )

)

Defendant. )

MEMORANDUM AND ORDER

I. MEMORANDUM

For the reasons stated below, the Motion to Dismiss filed by Defendant South Side Area

School District (“Defendant”) (Doc. 14) will be GRANTED IN PART and DENIED IN PART.

A. Background

Plaintiff worked for Defendant, South Side Area School District, from in or around

August 1993, until in or around June 2021, most recently as a Middle School Emotional Support

Teacher. Compl. (Doc. 1) ¶ 9. On August 4, 2021, Plaintiff filed the instant six-count

Complaint seeking damages for discrimination, retaliation and harassment due to her own

disabilities, complaints she made to the school about students and/or employees with disabilities,

and/or her association with her union. See Doc. 1. Specifically, Plaintiff alleges that, from in or

around September 2019, through March 2021, Defendant subjected her to numerous

discriminatory, retaliatory and/or harassing employment actions leading to her forced retirement,

including, inter alia: changing Plaintiff’s job description frequently; providing her with

inconsistent/conflicting job tasks; denying her support from a paraprofessional; subjecting her to

a surprise observation by the principal, after which she was reprimanded for meeting with a

dangerous parent; threatening her with a Loudermill hearing based on a false complaint; filtering

her email; and denying her opportunities provided to other similarly-situated employees such as

the ability to use a cell phone during school hours to contact parents and the option to work from

home/bring her child to work when faced with a childcare issue. See Compl. ¶¶ 21-56.

On December 5, 2022, Defendant filed a Motion to Dismiss Plaintiff‘s Complaint under

Federal Rule of Civil Procedure 12(b)(6) (Doc. 14), arguing that her claims fail to meet the

notice pleading standards and, where applicable, that she lacks standing and/or failed to exhaust

her administrative remedies.

B. Motion to Dismiss

1. Count 1: Retaliation – Freedom of Association (First Amendment/42 U.S.C. § 1983)

Count 1 of the Complaint asserts that Defendant subjected Plaintiff to ongoing

harassment in retaliation for her association with her union in violation of her Constitutional

rights under the First Amendment. See Compl. ¶¶ 58-63. Defendant’s Motion to Dismiss this

count will be granted for failure to meet the notice pleading standards.

To succeed on a First Amendment retaliation claim under Section 1983, a plaintiff must

show: (1) engagement in constitutionally protected conduct; (2) that the defendant took

“retaliatory action sufficient to deter a person of ordinary firmness from exercising [her]

constitutional rights” and (3) a “causal link” between the protected conduct and the retaliatory

actions. Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (quoting Palardy v.

Twp. of Millburn, 906 F.3d 76, 80-81 (3d Cir. 2018)). Here, even assuming Plaintiff’s union

membership satisfies prong one of this test, and that Defendant’s alleged retaliatory actions

satisfy prong two, Plaintiff’s Complaint does not contain any allegations that, if believed, would

demonstrate a causal nexus between the two.1

The Complaint asserts only that Plaintiff was Defendant’s union president from 2008

until about 2015, and that, during her tenure as union president, she “had disagreements with

members of Defendant’s administration and board involving various union matters including, but

not limited to, matters relating to disabled employees and students and/or students and

employees with mental health issues.” Compl. ¶¶ 11-12. New superintendent, Alan Fritz, whom

Plaintiff alleges began to de-prioritize the district’s programs for disabled students, however, was

not hired until 2018, and she did not meet with him about her concerns until May 2019. Id. ¶¶

14-15. Moreover, the alleged retaliatory conduct about which she complains did not begin until

September 2019, and her forced retirement did not occur until June 2021. Id. ¶¶ 21, 56.

Although the Complaint avers generally that Plaintiff’s “advocacy for, support of, and

association with, the union” continued after her presidency ended in 2015, it is devoid of any

temporal or factual context in which to place that subsequent activity. See id. ¶¶ 11-12 (stating

only that her advocacy and disagreements continued “thereafter”). Indeed, of the Complaint’s 57

“Factual Allegations,” only three mention the union directly, id. ¶¶ 11-12, 54, and none allege

any facts whatsoever connecting her union membership to the alleged harassment. See Baloga,

1 Plaintiff’s suggestion in her response brief that the law does not require her to plead causation

is misplaced. See Pl. Br. (Doc. 21) at 8 (asserting that, “[w]hen deciding a motion to dismiss, a

court may only consider the protected activity element of the three-part test”). The caselaw on

which Plaintiff relies for this proposition holds only that, unlike protected activity, the second

and third prongs of the test are fact-intensive inquiries not appropriate for resolution as a matter

of law. The cases do not absolve litigants from pleading these elements properly at the outset.

See Sposto v. Borough of Dickson City, No. 3:05 CV 0980, 2005 WL 3307333, at *2 (M.D. Pa.

Dec. 6, 2005) (noting that the complaint alleged all three elements); Baldassare v. New Jersey,

250 F.3d 188, 195 (3d Cir. 2001) (reviewing factual sufficiency at the summary judgment stage).

927 F.3d at 727 (noting that the criteria supporting a causal link include “an unusually suggestive

temporal proximity between the protected activity and the allegedly retaliatory action” or “a

pattern of antagonism coupled with timing”).

In her Response Brief (Doc. 21), Plaintiff insists that she “has plainly set forth” that

Defendant took the alleged retaliatory actions through a pattern of antagonism from September

2019 to March 2021 because of her union association. Pl. Br. at 10. Presumably, Plaintiff is

referring to Paragraph 54 of her Complaint, which declares: “Plaintiff also believes, and

therefore avers, that she was subjected to the ongoing harassment, as more fully described

hereinbefore above, in retaliation for her association with the union.” Compl. ¶ 54; see also id. ¶

61. Such conclusory allegations, however, do not survive scrutiny under Iqbal and Twombly.

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“While a complaint attacked by

a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

(alteration in original) (internal citations omitted)); see also Ashcroft v. Iqbal, 556 U.S. 662, 681

(2009) (citing Twombly).

Plaintiff’s reliance on conclusory allegations and her failure to plead a causal nexus

sufficient to support a plausible First Amendment retaliation claim necessitate dismissal of Count

1 of her Complaint under Rule 12(b)(6).

2. Counts 2 and 5: Retaliation – Rehabilitation Act and the Americans with Disabilities

Act (“ADA”)

Counts 2 and 5 (misnumbered as Count 7) allege that Defendant retaliated against

Plaintiff for complaining to the administration about disability discrimination against various

students and staff members with disabilities and/or mental health issues in violation of the ADA

and Section 504 of the Rehabilitation Act. Compl. ¶¶ 64-71, 86-89. After careful review, the

Court disagrees with Defendant that Plaintiff’s Complaint fails to state a plausible retaliation

claim.

Defendant’s only substantive arguments in favor of dismissal are that the Complaint fails

to identify Plaintiff’s protected activity and/or fails to properly plead a causal link between the

protected activity and any adverse employment actions. Def. Br. at 10-11, 14. As to protected

activity, however, the Complaint specifically states that Plaintiff met with new Superintendent

Fritz in May 2019, to discuss changes the District made after his hire to in-house programs for

disabled students and students with mental health issues, and that, at that time, she reported her

concerns that these students were not receiving the proper federally-mandated support from

Defendant. Compl. ¶¶ 15-16. The Complaint further avers that, after that time, Plaintiff

continued to complain to Fritz, Principal Samuel Adams, board members and/or other members

of the administration about: disability discrimination against various students and staff members

with mental health issues; Defendant’s failure to provide federally-required services and support

to students with disabilities; and concerns that Defendant was not meeting the standards required

for disabled students under the Rehabilitation Act and IDEA. Id. ¶¶ 18-20. Viewing the

Complaint in the light most favorable to Plaintiff, these allegations, taken as true, sufficiently

assert protected activity under the federal notice pleadings standards. See, e.g., Houlihan v.

Sussex Tech. Sch. Dist., 461 F. Supp. 2d 252, 258 (D. Del. 2006); Knaub v. Tulli, 788 F. Supp.

2d 349, 358-59 (M.D. Pa. 2011).

Similarly, the Complaint sufficiently asserts a causal connection between the protected

activity and the alleged adverse employment actions. Unlike the earlier-discussed union

association claim, Plaintiff’s Complaint contextually and temporally connects her disability-

related complaints to the alleged adverse conduct she claims led to her forced retirement.

Compl. ¶¶ 15-16, 21-40, 42-47, 49-51, 56 (describing alleged retaliatory incidents that occurred

beginning in September 2019, after she first complained to Superintendent Fritz in May 2019,

and continuing until at least March 2021). Such allegations adequately set forth a causal nexus

sufficient to survive a motion to dismiss.

Defendant’s further argument that Plaintiff’s Rehabilitation Act claims must fail due to

her failure to exhaust her administrative remedies is without merit. It is undisputed that Plaintiff

filed an EEOC charge that included her ADA retaliation claims. See Def. Br. Ex. 1. (Doc. 15-1).

Although the charge does not mention the Rehabilitation Act by name, her Rehabilitation Act

and ADA retaliation claims clearly arise out of the same course of conduct. See Pl. Br. at 10-12.

As Plaintiff correctly notes, the scope of the original charge should be liberally construed in such

a circumstance to include the Rehabilitation Act claim. See Waiters v. Parsons, 729 F.2d 233,

237 (3d Cir. 1984) (“The relevant test in determining whether appellant was required to exhaust

her administrative remedies, therefore, is whether the acts alleged in the subsequent . . . suit are

fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.”);

see also 29 U.S.C. § 794(d) (Rehabilitation Act’s incorporation by reference of the ADA’s

substantive standards). Accordingly, assuming Plaintiff was required to exhaust administrative

remedies prior to filing a Rehabilitation Act claim, the Court finds that her EEOC charge fairly

encompassed the substance of that claim.

3. Count 3: Retaliation – Individuals with Disabilities Education Improvement Act of

2004 (“IDEA”)

Count Three of the Complaint, which alleges retaliation in violation of IDEA, must be

dismissed with prejudice because, as a teacher, Plaintiff lacks standing under IDEA to assert

such a claim. See Lawrence Tp. Bd of Educ. v. New Jersey, 417 F.3d 368, 371 (3d Cir. 2005)

(stating that “[the IDEA statutory] language strongly suggests that Congress intended to provide

a private right of action only to disabled children and their parents”); Jones v. Camden City Bd.

of Educ., 499 F. App’x 127, 129 (3d Cir. 2012) (substitute teacher lacked standing to litigate an

IDEA claim); Vanselous v. Bucks Cnty. Intermediate Unit No. 22, No. CIV.A. 13-4805, 2014

WL 2767060, at *8 (E.D. Pa. June 18, 2014) (teacher lacked standing to bring an IDEA

retaliation claim); Woods Servs., Inc. v. Hazleton Area Sch. Dist., Civil Action No. 3:15-CV-

02464, 2016 WL 6216122, at *5-*6 (M.D. Pa. 2022).

4. Count 4: Disability Discrimination - ADA

Count Four of the Complaint (misnumbered as Count 5) asserts that Defendant

intentionally discriminated against Plaintiff due to her own disability and/or perceived disability.

Compl. ¶¶ 80-85. Defendant’s Motion to Dismiss this Count will be granted because Plaintiff

has failed to plead a disability within the meaning of the ADA. See 42 U.S.C. § 12102(1)

(defining disability as: “(A) a physical or mental impairment that substantially limits one or

more major life activities of such individual; (B) a record of such an impairment; or (C) being

regarded as having such an impairment”).

Plaintiff’s Complaint asserts only that she “was diagnosed with ADHD and anxiety in or

about 2016.” Compl. ¶ 13. Even taking this allegation as true, a diagnosis standing alone is

insufficient to establish a disability under the ADA. See Pritchett v. Ellers, 324 F. App'x 157,

159 (3d Cir. 2009); see also, e.g., Mundy v. City of Pittsburgh, No. 2:22-CV-31, 2022 WL

17851629, at *7 (W.D. Pa. Dec. 22, 2022) (finding that the plaintiff’s complaint did not contain

adequate details about her anxiety condition to survive a motion to dismiss); D.M. by & through

Mr. J.M. & Mrs. J.M., et al. v. E. Allegheny Sch. Dist., No. 2:22-CV-00110-CCW, 2023 WL

2139887, at *3 (W.D. Pa. Feb. 21, 2023) (“A dismissal at the motion to dismiss stage is only

appropriate when the plaintiff's complaint lacks sufficient details regarding the severity of the

mental health condition.”). Plaintiff’s Complaint fails to allege that her alleged impairments

substantially limited any major life activities or that Defendant even knew of those impairments.

See Clouser v. Hanover Foods Corp., No. 1:21-CV-1148, 2022 WL 1309083, at *5 (M.D. Pa.

May 2, 2022) (granting motion to dismiss where complaint failed to allege that any of plaintiff’s

diagnoses substantially impaired him); Jones v. United Parcel Serv., 214 F.3d 402, 406 (3d Cir.

2000) (“It is, of course, an axiom of any ADA claim that the plaintiff be disabled and that the

employer be aware of the disability.”). For all of these reasons the Complaint fails to state an

ADA disability discrimination claim upon which relief can be granted and, therefore, Count 4

must be dismissed.

5. Count 6: Discrimination/Retaliation – Pennsylvania Human Relations Act (“PHRA”)

Count 6 of Plaintiff’s Complaint (misnumbered as Count 8) asserts disability

discrimination and/or retaliation in violation of the PHRA, 43 Pa. Stat. Ann. §§ 951 et seq.

Compl. ¶¶ 90-93. Defendant’s Motion to Dismiss this Count will be granted as to the disability

discrimination allegations and denied as to the retaliation claims, for the same reasons set forth

above. Defendant’s argument that the PHRA claim should be dismissed for failure to exhaust

administrative remedies is without merit, as the EEOC charge attached to Defendant’s Brief

plainly cross-references the Pennsylvania Human Relations Commission. See Def. Br. (Doc.

15), Ex. 1.

II. ORDER

For these reasons, the Motion to Dismiss filed by Defendant South Side Area School

District (Doc. 14) is GRANTED IN PART AND DENIED IN PART. The Motion is

GRANTED with respect to Counts 1 (First Amendment), 3 (IDEA) and 4 (misnumbered as

Count 5) (ADA Discrimination); and GRANTED IN PART as to Count 6 (misnumbered as

Count 8) (PHRA Discrimination). Count 3 is DISMISSED WITH PREJUDICE. Counts 1, 4

and the PHRA Discrimination claim in Count 6 are DISMISSED WITHOUT PREJUDICE

and with leave to amend. The Motion to Dismiss is DENIED in all other respects.

Consistent with the above, should Plaintiff choose to amend her Complaint, she may do

so by October 10, 2023. If an amendment is not timely filed, the claims dismissed without

prejudice herein, will be dismissed with prejudice.

IT IS SO ORDERED.

September 25, 2023 s/Cathy Bissoon

Cathy Bissoon

United States District Judge

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