SULLIVAN v. EXACT SCIENCES CORPORATION

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SUZANNE SULLIVAN, ) CIVIL ACTION NO. 3:22-116

)

Plaintiff, )

) JUDGE KIM R. GIBSON

v. )

)

EXACT SCIENCES CORPORATION )

and KEVIN CONROY, )

)

Defendants. )

MEMORANDUM OPINION

I. Introduction

This action arises out of Plaintiff Suzanne Sullivan’s (“Ms. Sullivan”) attempt to obtain

an exemption from a COVID-19 vaccination requirement implemented by her employer,

Defendant Exact Sciences Corporation (“Exact Sciences”) and her termination after requesting

that exemption. (See ECF No. 22).

Currently pending before the Court is Defendant Kevin Conroy’s (“Mr. Conroy”)

“Motion for Judgment on the Pleadings as to Counts II and V of [Ms. Sullivan’s] Amended

Complaint[.]” (ECF No. 34). The Motion is fully briefed (ECF Nos. 35, 37, 40) and ripe for

disposition. For the following reasons, the Court DENIES Mr. Conroy’s Motion.

II. Jurisdiction and Venue

The Court has subject-matter jurisdiction over this case because: (1) Ms. Sullivan

advances claims under the Americans with Disabilities Act (the “ADA”) and the Family and

Medical Leave Act of 1993 (the “FMLA”) and (2) Ms. Sullivan’s Pennsylvania state law claims

form part of the same case or controversy as her federal law claims. (ECE No. 22); 28 U.S.C. §

1331; 28 U.S.C. § 1367.

Further, venue is proper because a substantial part of the events giving rise to Ms.

Sullivan’s claims occurred in this district. (ECF No. 22); 28 U.S.C. § 1391(b)(2).

Ill. Background

The Court begins by outlining the relevant factual allegations in Ms. Sullivan’s

Amended Complaint. In doing so, the Court takes those allegations as true, as it must in

decided a Motion for Partial Judgment on the Pleadings. Haney-Filippone v. Agora Cyber Charter

Sch., 538 F. Supp. 3d 490, 493 (E.D. Pa. 2021) (“A Rule 12(c) motion is analyzed under the same

standards that apply to a Rule 12(b)(6) motion, construing all allegations in the complaint as

true and drawing all reasonable inferences in the light most favorable to the nonmoving

party.”).

A. Factual Background

Ms. Sullivan worked for Exact Sciences as a professional medical representative

(“PMR”) from 2019 until October 4, 2021. (ECF No. 22 at TI 9, 47).

On July 30, 2021, Exact Sciences “announced that it would be requiring employees to

fully receive a COVID-19 vaccine by September 15, 2021.” (Id. at J 16). Mr. Conroy, who was the

CEO of Exact Sciences, was the “primary decisionmaker involved in creating the Exact Sciences’

COVID-19 vaccination policy.” (Id. at {{ 17-18). When Exact Sciences announced the COVID-19

vaccination requirement, Mr. Conroy stated that there would be a “’process for requesting

accommodations based on qualifying religious or medical reasons ...’” (Id. at J 17).

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On August 3, 2021, Ms. Sullivan inquired as to whether she would continue to be

employed by Exact Sciences if her doctor recommended that she not receive a COVID-19

vaccine. (Id. at J 19). In response, Exact Sciences informed Ms. Sullivan that the company would

engage in an “interactive process to evaluate the availability of a reasonable accommodation

for an employee who has a qualifying medical condition or status that is a contraindication for

vaccination[.]’” (id. at J 20). Ms. Sullivan made this and other inquiries because, as of August

2021, she had a medical history that included: (1) allergic reactions to the flu vaccine, (2)

leukopenia, (3) gastritis, (4) insomnia, (5) demyelinating disease and migraines, and (6) other

medical conditions. (Id. at [J 22-24).

On August 5, 2021, Ms. Sullivan sent an email to Exact Sciences and Mr. Conroy

pleading with them to “reconsider the mandate” and offering “to test weekly and even daily, if

necessary, and to pay for such testing.” (Id. at 25). Ms. Sullivan received a response indicating

that Exact Sciences would not reconsider its policy, but also stating that the Leaves and

Accommodations team would assist her if she sought an accommodation. (Id. at J 26). On

August 6, 2021, Exact Sciences provided Ms. Sullivan with a medical certification form, thereby

treating her previous communications as a request for a reasonable accommodation. (Id. at

27).

On August 11, 2021, Ms. Sullivan received a flu shot and suffered “an immediate

allergic, anaphylactoid or anaphylaxis reaction, which included hives, throat tightness,

shortness of breath, and disorientation.” (Id. at | 28). These reactions impaired Ms. Sullivan’s

ability to breath, concentrate, interact with others, and work. (Id. at J 31). After seeking medical

attention for her reaction to the flu shot, Ms. Sullivan obtained a letter from her medical doctor,

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Robert J. Schmidt, M.D. (“Dr. Schmidt”). (Id. at 28-33). In that letter, Dr. Schmidt stated that

Ms. Sullivan could have a potentially life-threatening reaction to the available COVID-19

vaccines, and that Ms. Sullivan should therefore be evaluated by an immunologist/allergist

prior to potentially receiving a COVID-19 vaccine. (Id. at {J 34-35). However, Ms. Sullivan was

not able to obtain an appointment with a specialist until December 6, 2021, and she advised

Exact Sciences of that fact. (Id. at [1 37-38).

On August 15, 2021, Mr. Conroy announced that the deadline to fully receive the

COVID-19 vaccinations was extended until October 1, 2021. (id. at 39). After making that

announcement, Mr. Conroy called Dillan Roth, (“Mr. Roth”), another PMR working for Exact

Sciences, who was also seeking an accommodation relative to the COVID-19 vaccine

requirement. (Id. at {[ 40). In the course of that conversation, Mr. Conroy told Mr. Roth that

“anyone who made the ‘selfish’ decision to not get vaccinated would need to find another job.”

(Id. at J 41). Specifically, Mr. Conroy made the following statement to Mr. Roth: ““And I know

you’re gonna [sic] go tell your little friends about this so tell them this: If they want to make this

decision that I think is a selfish one, then they will need to find another employer to work for.’”

(Id. at J 42). Mr. Conroy made these statements while Ms. Sullivan’s accommodation request

was pending. (Id. at J 45).

On September 27, 2021, Exact Sciences informed Ms. Sullivan that her accommodation

request was denied and her employment with the company would be terminated on October 4,

2021. (Id. at {[ 47). Exact Sciences offered Ms. Sullivan the following reasons for denying her

accommodation request:

□□

You recently requested that Exact Sciences provide an accommodation to allow

you to remain unvaccinated in your position, notwithstanding the Company’s

vaccination policy. Your request is being denied because: Allowing you to

remain unvaccinated in your role is not a reasonable accommodation because of

the safety risk you would pose to others (including but not limited to medically

vulnerable patients and professionals providing healthcare services) as well as

the associated negative reputational, relational, and access impacts on the

Company.

(Id. at J 48).

Exact Sciences denied the accommodation requests of other employees for the same

reasons that they offered Ms. Sullivan in denying her request. (Id. at 48-50). Exact Sciences

and Mr. Conroy “made the decision that exemptions would not be provided to PMRs such as

[Ms. Sullivan], and that the accommodation requests would be denied at once.” (Id. at J] 52).

Further, it was Mr. Conroy who “was the primary decisionmaker involved in deciding that no

PMR, including Ms. Sullivan and Mr. Roth, would be provided exemptions” to the vaccine

requirement, which “resulted in their employment being terminated.” (Id. at { 53).

After Ms. Sullivan received the email from Exact Sciences indicating that her

accommodation request had been denied, she responded by pointing out that the denial letter

was wrong—she had not requested to remain unvaccinated. (Id. at [J 54-55). Rather, she had

asked that the deadline to become vaccinated be extended for a “few months so that she could

see a specialist based upon her doctor’s advice.” (Id. at {] 55). On September 30, 2021, Exact

Sciences informed Ms. Sullivan that it was unable to provide her with an extension until

December. (Id. at J 59).

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Finally, at the time of her termination, Ms. Sullivan had been “fully performing her job

duties” and her “customers did not require sales representatives to be vaccinated|[.]” (Id. at

68).

B. Procedural History

Ms. Sullivan filed her Amended Complaint on February 21, 2023. (ECF No. 22). In that

document, she brings the following five claims: (1) a claim for Disability Discrimination under

the ADA and the Pennsylvania Human Rights Act (the “PHRA”) as against Exact Sciences

(“Count 1”); (2) a claim for Unlawful Retaliation under the ADA and the PHRA as against Exact

Sciences and Unlawful Retaliation under the PHRA as against Mr. Conroy (“Count II”); (3) a

claim for Violation of her rights under the FMLA as against Exact Sciences (“Count III”); (4) a

claim for Unlawful Retaliation and Discrimination under the FMLA as against Exact Sciences

(“Count IV”); and (5) a claim for Aiding and Abetting under the PHRA as against Mr. Conroy

(“Count V"). (Id. at 10-17).

On April 3, 2023, Mr. Conroy filed an Answer and Affirmative Defenses to Ms.

Sullivan’s Amended Complaint. (ECF No. 33). On April 10, 2023, Mr. Conroy moved for Partial

Judgment on the Pleadings and submitted a Brief in Support. (ECF Nos. 34, 35). Ms. Sullivan

filed a Response on April 28, 2023. (ECF No. 37). On May 11, 2023, Mr. Conroy submitted a

Reply. (ECF No. 40).

Finally, on March 1, 2024, Mr. Conroy and Exact Sciences filed a Motion for Summary

Judgment. (ECF No. 72). Ms. Sullivan’s Response to that Motion is currently due on or before

April 8, 2024. (ECF No. 77).

IV. Discussion

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A. Legal Standard: Rule 12(c)

Motions for judgment on the pleadings are governed by Rule 12(c) of the Federal Rules

of Civil Procedure. FED. R. Civ. P. 12(c). A “party may move for judgment on the pleadings

‘after the pleadings are closed—but early enough not to delay trial.’” Haney-Filippone v. Agora

Cyber Charter Sch., 538 F. Supp. 3d 490, 493 (E.D. Pa. 2021) (quoting FED. R. CIv. P. 12(c)). A

motion of this kind “is analyzed under the same standards that apply to a Rule 12(b)(6)

motion[,]” with a court “view[ing] the facts presented in the pleadings and the inferences to be

drawn therefrom in the light most favorable to the nonmoving party[.]” Wolfington v.

Reconstructive Orthopaedic Associates II PC, 935 F.3d 187, 195 (3d Cir. 2019) (internal quotation

marks and citations omitted). A court “may not grant the motion unless the movant clearly

establishes that no material issue of fact remains to be resolved and that he is entitled to

judgment as a matter of law.” Id. (internal quotation marks and citation omitted). Thus, “in

deciding a motion for judgment on the pleadings, a court may only consider the complaint,

exhibits attached to the complaint, matters of public record, as well as undisputedly authentic

documents if the complainant's claims are based upon those documents.” Id. (internal quotation

marks and citation omitted).

Because Rule 12(c) motions are analyzed under the same standards that apply to Rule

12(b)(6) motions, id., the Court shifts its attention to the legal principles governing Rule 12(b)(6)

motions.

A complaint may be dismissed under Rule 12(b)(6) for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). For a complaint to survive a Rule 12(b)(6)

motion to dismiss, it need only provide “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

Fed. R. Civ. P. 8(a)(2)).

Under the pleading regime established by Twombly and Iqbal, a court reviewing the

sufficiency of a complaint must take three steps.’ First, the court must “tak[e] note of the

elements [the] plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009).

Second, the court should identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id. at 679. See also Burtch v. Milberg Factors, Inc., 662

F.3d 212, 224 (3d Cir. 2011) (“[M]ere restatements of the elements of [a] claim . . . are not entitled

to the assumption of truth.”) (citation omitted).

Third, “[w]hen there are well-pleaded factual allegations, [the] court should assume

their veracity and then determine whether they plausibly give rise to an entitlement to relief.”

Iqbal, 556 U.S. at 679. “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.” Id. See also Connelly v. Lane Const. Corp., 809 F.3d. 780, 786 (3d Cir. 2016).

The plausibility determination is “a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

B. The Court Will Deny Mr. Conroy’s Request for Partial Judgment on the

Pleadings With Respect to Count IT

As the Court previously noted, at Count II of her Amended Complaint, Ms. Sullivan

brings a claim for Retaliation under the PHRA as against Mr. Conroy. See supra Section II-B.

1 Although Iqbal described the process as a “two-pronged approach,” Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009), the Supreme Court noted the elements of the pertinent claim before proceeding with that

approach. See id. at 675-79. Thus, the Third Circuit has described the process as a three-step approach.

See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016); Burtch v. Milberg Factors, Inc., 662 F.3d

212, 221 n.4 (3d Cir. 2011) (citing Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)).

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1. Legal Standard

Section 955(d) of the PHRA:

[D]eclares it to be an “unlawful discriminatory practice” for a covered employer

“to discriminate in any manner against any individual because such individual

has opposed any practice forbidden by [the PHRA], or because such individual

has made a charge, testified or assisted, in any manner, in any investigation,

proceeding or hearing” thereunder.

Toth v. California Univ. of Pa., 844 F. Supp. 2d 611, 642 (W.D. Pa. 2012) (quoting 43 PA. STAT. §

955(d)). Therefore, to make out a prima facie case of Retaliation under Section 955(d) of the

PHRA, a plaintiff must show that: “(1) [s]he engaged in activity protected by the statute; (2) the

employer took an adverse employment action against [her]; and (3) there was a causal

connection between the two.” Nelatury v. Pa. State Univ., 633 F. Supp. 3d 716, 735 (W.D. Pa.

2022) (quoting Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 192-93 (3d Cir. 2015)); see also Macknet

v. Univ. of Pa., 738 F. App’x 52, 56 (3d Cir. 2018) (“Because the ADA [and] PHRA contain nearly

identical anti-retaliation provisions that prohibit discrimination ... based on protected activity,

we have interpreted the anti-retaliation of [those statutes] as applying identically ... [and as]

being governed by the same set of precedents.”) (cleaned up).

2. The Parties’ Arguments

Mr. Conroy argues that judgment should be entered in his favor on Count II because Ms.

Sullivan “alleges no facts that [he] knew of her protected activity and thus, the [Amended

Complaint] contains no facts supporting causation.” (ECF No. 35 at 4) (citing Warfield v. SEPTA,

460 F. App’x 127, 132 (3d Cir. 2012) for the principle that an employer’s “knowledge of an

employee’s protected conduct is an essential element of establishing a causal connection

between an alleged protected activity and adverse employment action”) (cleaned up). Indeed,

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Mr. Conroy contends that Ms. Sullivan’s only allegations regarding her personal interactions

with him relate to her August 5, 2021, email. (Id. at 5). However, he states that Ms. Sullivan’s

“Amended Complaint is devoid of any factual allegations linking her August 5, 2021[,]

opposition to the vaccine mandate to an alleged disability.” (Id.). In like fashion, Mr. Conroy

asserts that Ms. Sullivan has not pleaded any facts to support her argument that “The] retaliated

against her for requesting an accommodation” because the “Amended Complaint is similarly

devoid of factual allegations that [he] had any knowledge of her accommodation request.” (Id.

at 6) (emphasis in original) (also arguing that Ms. Sullivan’s “allegations are wholly insufficient

to establish that Mr. Conroy took any action related to [her] employment.”) (emphasis in

original).

In her Response, Ms. Sullivan argues that she “alleged that [Mr.] Conroy made the

decision to deny her and all [PMR’s] accommodation requests].]” (ECF No. 37 at 12).

In his Reply, Mr. Conroy contends that none of Ms. Sullivan’s “allegations state that [he]

knew that [she] herself had requested any kind of accommodation.” (ECF No. 40 at 2).

3. Analysis

At the outset, the Court notes that the parties do not dispute the fact that Ms. Sullivan’s

request for an accommodation based. on her alleged disability constitutes protected activity

under the PHRA, thereby satisfying the first element of a Retaliation claim. (ECF Nos. 35, 37,

40); see Kocher v. Municipality of Kingston, 400 F. Supp. 3d 138, 153 (M.D. Pa. 2019) (“Under the

ADA [and PHRA], employers are prohibited from retaliating against their employees for

engaging in a protected activity such as requesting reasonable accommodation for their

disability.”).

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Second, the Court notes that the parties do not dispute the fact that termination

constitutes an adverse employment action for purposes of the PHRA, meaning that the adverse

action component of Ms. Sullivan's claim is likewise satisfied. (ECF Nos. 35, 37, 40); Briggs v.

Temple Univ., 339 F. Supp. 3d 466, 498 (E.D. Pa. 2018) (“For the reasons set forth above, [plaintiff]

clearly presented a legally sufficient evidentiary basis for a reasonable jury to find that she

suffered an adverse employment action by being terminated by [defendant].”).?

With those findings in place, the Court shifts its attention squarely to the causation

element of Ms. Sullivan’s claim—namely, Mr. Conroy’s argument that this element is not

satisfied because he was unaware that Ms. Sullivan had requested an accommodation based on

her alleged disability.

When the Court reads the Amended Complaint in the light most favorable to Ms.

Sullivan, the Court holds that she has pleaded sufficient facts to plausibly show that Mr. Conroy

knew that she had engaged in protected activity by requesting an accommodation to the

vaccine requirement based on her alleged disability. The Court so finds for the following two

interrelated reasons.

First, several allegations in the Amended Complaint indicate that Mr. Conroy played a

highly significant role in implementing Exact Sciences’ COVID-19 vaccine requirement, as well

2 In reaching this finding, the Court stresses that it was Mr. Conroy who: (1) was the primary

decisionmaker involved in creating Exact Sciences’ vaccine requirement, (2) announced that employees

would be required to be vaccinated by the deadline, (3) and denied Ms. Sullivan’s accommodation request,

leading to her termination. (ECF No. 22 at {J 16-18, 52-53). Therefore, reading the Amended Complaint

in a light most favorable to Ms. Sullivan, it may be said that Mr. Conroy not only denied her exemption

request, but also effectively decided to terminate her employment. As a corollary, because, as the Court

further explains in text below, Mr. Conroy knew of Ms. Sullivan’s accommodation request based on her

alleged disability, the Court finds that Ms. Sullivan has plausibly pleaded that Mr. Conroy retaliated

against her because of her protected activity.

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as the accommodation process, making it very likely that he was aware of the nature of Ms.

Sullivan’s request. Indeed, Ms. Sullivan avers: (1) that it was Mr. Conroy who was the primary

decisionmaker in creating Exact Sciences’ COVID-19 vaccination policy, (ECF No. 22 at {| 18), (2)

that it was Mr. Conroy who announced the company’s COVID-19 vaccine requirement, (id. at

{I 16-17), (3) that it was Mr. Conroy who announced the accommodation process, (id. at {[ 17),

(4) that Ms. Sullivan saw fit to email Mr. Conroy, in August 2021, with an email that Exact

Sciences ultimately construed as being part of an accommodation request, (id. at 25-27), (5)

that it was Mr. Conroy who moved the deadline for Exact Sciences employees to be fully

vaccinated back to October 1, 2021, (id. at { 39), (6) that it was Mr. Conroy who called Mr. Roth

and generally mentioned to him other employees of Exact Sciences who were contemplating

remaining unvaccinated, (id. at [J 40-42), and (7) that it was Mr. Conroy who was the “primary

decisionmaker involved in deciding that no PMR, including Ms. Sullivan ... would be provided

exemptions” to the vaccination policy. (Id. at J 53). When the Court reads these factual

averments (several of which are quite specific) together and draws all inferences in favor of Ms.

Sullivan, the Court finds it highly likely that Mr. Conroy, who was very much at the center of

Ms. Sullivan’s request for an accommodation, was aware that she had requested an

accommodation based on her alleged disability.

Second, the Court reiterates Ms. Sullivan’s allegations that “Exact Sciences and Mr.

Conroy made the decision that exemptions would not be provided to PMRs such as [Ms.

Sullivan], and that the accommodation requests would be denied at once[,]” and that Mr.

Conroy was the “primary decisionmaker involved in deciding that no PMR, including Ms.

Sullivan .. would be provided exemptions ... which resulted in their employment being

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terminated.” (Id. at □□ 52-53). Simply put, given Mr. Conroy’s role in the COVID-19 vaccination

requirement and accommodation process as a whole, as well as his role as CEO of Exact

Sciences, the Court deems it reasonable to infer that he read the accommodation requests of his

employees, including Ms. Sullivan, before deciding to deny them. See, e.g., Shellenberger v.

Summit Bancorp., Inc., 318 F.3d 183, 189 (3d Cir. 2003) (“[The Site Manager] was present in [the]

office when [plaintiff] was fired. As the Site Manager of the call center, her presence in [the]

office during a meeting ... called to fire [plaintiff] presents circumstantial evidence that [she]

was involved in the decision to terminate [plaintiff].”); Nelatury, 633 F. Supp. 3d 716 at 735

(analyzing a Retaliation claim and finding that “i]t can be inferred that [defendant] knew about

a[n EEOC] charge on which he was named as a respondent, and about an internal complaint

that led to a ruling he had violated university policy.”).

Therefore, the Court finds that Ms. Sullivan has plausibly pleaded that Mr. Conroy

knew that she had requested an accommodation from the vaccine requirement based on her

alleged disability.

Having resolved the issue of whether Mr. Conroy was personally aware of Ms.

Sullivan’s protected activity, the Court notes that Mr. Conroy does not further dispute the

causal connection between Ms. Sullivan’s request for an accommodation and her termination.

(ECF Nos. 35, 40). Further, although the Court need not and does not resolve the issue at this

time, it does note that, given Mr. Conroy’s phone conversation with Mr. Roth in the weeks

preceding Ms. Sullivan’s termination, in which Mr. Conroy allegedly said that Mr. Roth’s “little

friends” were making a “selfish” decision in refusing the vaccine, Ms. Sullivan may have

plausibly pleaded a causal connection between her accommodation request and her

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termination. Macknet, 738 F. App’x at 56 (“A plaintiff may establish a causal connection based

on an unusually suggestive temporal proximity between the protected activity and the

allegedly retaliatory action, a pattern of antagonism coupled with timing, or evidence gleaned

from the record as a whole.”) (cleaned up); Yeager v. UPMC Horizon, 698 F. Supp. 2d 523, 548

(W.D. Pa. 2010) (finding that the approximately one month between the protected activity and

the adverse employment action, coupled with additional evidence of “defendants’ antagonistic

behavior[,]” was sufficient to establish causation).

Accordingly, the Court holds that Ms. Sullivan has plausibly pleaded a Retaliation claim

against Mr. Conroy at Count II.

C. The Court Will Deny Mr. Conroy’s Request for Partial Judgment on the

Pleadings With Respect to Count V

As the Court previously noted, at Count V of her Amended Complaint, Ms. Sullivan

brings a claim for Aiding and Abetting under the PHRA as against Mr. Conroy. See supra

Section II.B.

1. Legal Standard

A plaintiff can sustain “PHRA claims against a defendant in their individual capacity

pursuant to Section 955(e) of the PHRA which forbids, ‘any person, employer, employment

agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any

act declared by this section to be an unlawful discriminatory practice.” Brzozowski v. Pa.

Turnpike Comm’n, 165 F. Supp. 3d 251, 262-63 (E.D. Pa. 2016) (quoting 43 PA. STAT. § 955(e)).

Thus, “an individual supervisory employee can be held liable under an aiding and

abetting/accomplice liability theory pursuant to § 955(e) for his own direct acts of discrimination

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or for his failure to take action to prevent further discrimination by an employee under

supervision.” Id. at 263 (internal quotation marks and citation omitted); Nelatury, 633 F. Supp.

3d at 734-35. However, courts have “emphasized that liability under § 955(e) only extends to

those who are in a supervisory role as only supervisors can share the discriminatory purpose and

intent of the employer that is required for aiding and abetting.” Brzozowski, 165 F. Supp. 3d at

263 (internal quotation marks and citation omitted) (emphasis in original).

In Vance v. Ball State Univ., 570 U.S. 421 (2013), the United States Supreme Court:

[H]eld “that an employee is a supervisor for purposes of vicarious liability under

Title VII if he or she is empowered by the employer to take tangible employment

actions against the victim.” “A tangible employment decision requires an official

act of the enterprise, a company act.” Specifically, a tangible employment action

must “effect a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.”

Coe v. Pa. State Univ., No. 4:14-CV-1818, 2016 WL 1162344, at *10 (M.D. Pa. Mar. 24, 2016)

(quoting Vance, 570 U.S. at 424-31). Given the parallels between Title VII and the PHRA, several

courts within this circuit have applied the Supreme Court’s holding in Vance when determining

whether an employee holds a supervisory role under the PHRA. Id. (collecting cases). This

Court likewise finds that it is appropriate to apply Vance in this case in determining whether

Mr. Conroy held a supervisory role relative to Ms. Sullivan. Id. at *10-11.

2. The Parties’ Arguments

Mr. Conroy first argues that Ms. Sullivan has failed “to state a claim against [him] for

aiding and abetting because [she] provides no description of supervisory acts by Mr. Conroy

that would bring him within the scope of coverage as outlined” by the Third Circuit. (ECF No.

35 at 7). Further, even assuming that Ms. Sullivan has adequately pleaded that Mr. Conroy was

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a supervisor, Mr. Conroy contends that the mere fact that he “made high-level policymaking

decisions regarding the COVID-19 vaccine policy is simply insufficient to state a claim that [he]

engaged in any discriminatory act or aided and abetted such acts against [Ms. Sullivan.]” (Id. at

8-9). In short, Mr. Conroy asserts:

[Ms. Sullivan] has not pleaded any facts to support a conclusion that [he] acted

on [her] accommodation request, made any decision specific to [her]

employment, or even knew about her accommodation request. In sum, [Ms.

Sullivan] has not pleaded any facts to support a claim that [Mr. Conroy] engaged

in discrimination against [her].

(Id. at 10).

In her Response, Ms. Sullivan argues that she has pleaded sufficient facts to show that

Mr. Conroy had supervisory authority over her. (ECF No. 37 at 11). Indeed, she avers that

United States District Judge Susan Paradise Baxter rejected this same argument on behalf of Mr.

Conroy in a case brought by Mr. Roth. (Id.).

In his Reply, Mr. Conroy again asserts that, if he was “unaware of [Ms. Sullivan’s]

accommodation request in the first place, he cannot have taken any retaliatory action related to

that request.” (ECF No. 40 at 3).

3. Analysis

Beginning with the issue of whether Mr. Conroy filled a supervisory role relative to Ms.

Sullivan, the Court reiterates that Ms. Sullivan emailed Mr. Conroy in August 2021 about the

vaccine requirement, and Exact Sciences deemed that email part of her accommodation request.

(ECF No. 22 at {[ 25-27). These facts indicate that Ms. Sullivan (and perhaps Exact Sciences)

viewed Mr. Conroy as having authority over her relative to the vaccine requirement, a

requirement that ultimately factored heavily into her termination. Further, Ms. Sullivan has

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alleged that “Mr. Conroy was the primary decisionmaker involved in deciding that no PMR,

including Ms. Sullivan ... would be provided exemptions to Exact Sciences’ COVID-19

vaccination policy, which resulted in their employment being terminated.” (Id. at I 53). The

Court finds that these allegations, coupled with those above, see supra Section IV.B, are sufficient

to plausibly state that Mr. Conroy filled a supervisory role relative to Ms. Sullivan. Vance, 570

U.S. at 431 (“We hold that an employer may be vicariously liable for an employee's unlawful

harassment only when the employer has empowered that employee to take tangible

employment actions against the victim, i.e., to effect a significant change in employment status,

such as ... firing ... or a decision causing a significant change in benefits.”) (internal quotation

marks and citation omitted); Dillan Roth v. Exact Sciences Corp. and Kevin Conroy, No. 1:22-

CV-263-SPB (W.D. Pa. Apr. 7, 2023) (ECF No. 28 at 2-3) (“[Plaragraph 55 of the proposed

amendment plainly alleges that [Mr.] Conroy was the primary decisionmaker involved in

deciding that [Mr. Roth] was not entitled to an exemption from [Exact Sciences’] vaccination

policy, which resulted in [Mr. Roth’s] termination. Thus, contrary to [Exact Sciences’] assertion,

[Mr.] Conroy’s ‘supervisory authority’ has been adequately alleged.”).

With that finding in place, the Court notes that a claim for aiding and abetting under the

PHRA requires the existence of a “primary violation of the PHRA[.]” Brzozowski, 165 F. Supp. 3d

at 263. However, with respect to Mr. Conroy’s Motion for Partial Judgment on the Pleadings, he

has not argued that Ms. Sullivan has failed to state a primary violation of the PHRA. (ECF Nos.

35, 40). Therefore, the Court assumes without deciding that Ms. Sullivan has stated such a

violation. Nelatury, 633 F. Supp. 3d at 735 (noting that defendants’ only attack on plaintiff's

Retaliation claim under the PHRA was that one defendant did not know about the protected

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activity and therefore only addressing that issue when ruling on the motion to dismiss the

plaintiff's retaliation claims).

Assuming without deciding that Ms. Sullivan can successfully advance a claim for

disability discrimination under the PHRA as against Exact Sciences, the Court finds that she has

sufficiently pleaded that Mr. Conroy aided and abetted that conduct. Indeed, as the Court

explained earlier, Ms. Sullivan has pleaded facts that plausibly lead to the conclusion that Mr.

Conroy knew that she had requested an accommodation from the vaccine requirement based on

her alleged disability. See supra Section IV.B.3. Therefore, insofar as Ms. Sullivan can advance a

disability discrimination claim against Exact Sciences, Mr. Conroy may plainly be said to have

aided and abetted that discrimination by taking a critical step in completing it—denying her

3 At Count V of her Amended Complaint, Ms. Sullivan alleges that Mr. Conroy “aided and abetted the

discrimination set forth throughout this [Amended] Complaint.” (ECF No. 22 at { 108). At Count I, Ms.

Sullivan avers that Exact Sciences discriminated against her under the ADA and the PHRA by failing to

provide her with an accommodation, among other things. (Id. at 78).

To establish a prima facie case of disability discrimination under the ADA and the PHRA, a plaintiff must

“show (1) that [s]he is disabled within the meaning of the ADA [or the PHRA], (2) that [s]he is otherwise

qualified for the job, with or without reasonable accommodations, and (3) that [s]he was subjected to an

adverse employment decision as a result of the discrimination.” Sulima v. Tobyhanna Army Depot, 602 F.3d

177, 185 (3d Cir. 2010); Gucker 0. U.S. Steel Corp., 212 F. Supp. 3d 549, 559 (W.D. Pa. 2016) (finding that,

even after amendments to the ADA, the “ADA and the PHRA remain coextensive” as to the second two

elements).

While the Court does not definitively resolve this issue at this stage, the Court simply notes that Ms.

_ Sullivan may have adequately pleaded a claim for disability discrimination under the PHRA. Indeed, she

may have pleaded sufficient facts to support the findings that she was disabled, otherwise qualified for

her job, and subjected to an adverse employment action as a result of the discrimination against her.

Doe(s) v. Pittsburgh Reg’l Transit, No. 2:22-CV-1736, 2023 WL 4867850, at *6-7 (W.D. Pa. July 31, 2023)

(finding that plaintiff's “anaphylaxis [was] a disability under the ADA”); (ECF No. 22 at { 68) (alleging

that, at the time of her termination, she had been fully performing her job duties). The Court stresses that

it is not definitively resolving this issue at this time. Nor is the Court definitively resolving related issues,

such as whether the ADA and PHRA’s definitions of “disability” remain coextensive. Gucker, 212 F.

Supp. 3d at 559.

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accommodation request, which resulted in the termination of her employment. See Bernhard v.

Brown & Brown of Lehigh Valley, Inc., 720 F. Supp. 2d 694, 705 (E.D. Pa. 2010).

Accordingly, the Court holds that Ms. Sullivan has plausibly stated a claim against Mr.

Conroy under the PHRA for Aiding and Abetting.

V. Conclusion

For the foregoing reasons, the Court denies Mr. Conroy’s Motion for Partial Judgment

on the Pleadings. (ECF No. 34). The Court will certainly entertain renewed versions of Mr.

Conroy’s arguments when it rules on the pending Motion for Summary Judgment, (ECF No.

72), which will of course be predicated on the presence or absence of record evidence.

An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SUZANNE SULLIVAN, ) CIVIL ACTION NO. 3:22-116

)

* Plaintiff, )

) JUDGE KIM R. GIBSON

v. )

)

EXACT SCIENCES CORPORATION )

and KEVIN CONROY, )

)

Defendants. )

ORDER

ey TA

AND NOW, this 4- day of March, 2024, upon consideration of Defendant Kevin

Conroy’s “Motion for Judgment on the Pleadings as to Counts II and V of Plaintiff's Amended

Complaint[,]” (ECF No. 34), and for the reasons set forth in the accompanying Memorandum

Opinion, IT IS HEREBY ORDERED that the Motion at ECF No. 34 is DENIED.

BY THE COURT:

yo me ; .

hon Ne RLY Xx MAL

KIM R. GIBSON

UNITED STATES DISTRICT JUDGE

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