Malusky v. Schuylkill County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ANGELA MALUSKY, :

Plaintiff :

CIVIL ACTION NO. 3:24-CV-466

:

v.

: (JUDGE MANNION)

SCHUYLKILL COUNTY and

MARIA CASEY, :

Defendants :

MEMORANDUM

Plaintiff Angela Malusky claims that her former employers, Defendant

Schuylkill County (the “County”) and Defendant Maria Casey (“Casey”),

violated her Fourteenth Amendment right to due process. She also claims

that Defendants discriminated and retaliated against her on the basis of

disability in violation of the Americans with Disabilities Act (the “ADA”).

Finally, she claims that Defendants failed to pay her wages in violation of the

Fair Labor Standards Act (the “FLSA”), Pennsylvania’s Wage Payment and

Collection Law (the “WPCL”), and the Pennsylvania Minimum Wage Act (the

“PMWA”). Defendants move to dismiss Plaintiff’s Amended Complaint (the

“Complaint”). (Doc. 14; Doc. 15).

I. BACKGROUND

Because these are motions to dismiss, the court accepts the

Complaint’s factual allegations as true. Bruni v. City of Pittsburgh, 824 F.3d

353, 360 (3d Cir. 2016).

Plaintiff worked at the County’s Clerk of Court Office. (Doc. 13 ¶10).

As of 2022, she was in a Clerk III position, in which she earned $23.50 an

hour and typically worked 35 hours a week. (Id. ¶¶26, 215). When she

worked there, Plaintiff suffered from “mental impairments, including but not

limited to anxiety, depression, and high blood pressure.” (Id. ¶50).

In 2016, Defendant Casey started as Clerk of Courts, an elected

position. (Id. ¶24). Casey directly supervised Crista DiCasimirro, who directly

supervised Plaintiff. (Id. ¶32). Casey assigned “additional duties” to Plaintiff,

such as picking up dinners for Casey and delivering them to her home,

driving Casey around to deliver holiday meals to the needy, driving Casey to

and from work, packing gift baskets for Casey’s political supporters, and

driving Casey to political dinners. (Id. ¶57). Plaintiff did not volunteer for

these duties, but they were “commonplace” in the Clerk of Courts office

among many of the employees. (Id. ¶220–22). On average, Plaintiff

performed two to three additional duties a month, ranging in time from 15

minutes to 8 hours. (Id. ¶260). And some duties occurred outside standard

work hours. (Id. ¶217). For instance, Plaintiff once had to drive Casey to

political dinners to help her collect signatures for her campaign for over six

hours after working her standard 35 hours that week. (Id. ¶218). But Plaintiff

was prohibited from entering the time spent performing these duties on her

time sheet. (Id. ¶225).

The additional duties “often intertwined” with Plaintiff’s Clerk III duties.

(Id. ¶262). For example, Plaintiff was once required to pick up Casey at her

home before work and drive her to a junkyard so that Casey could retrieve

items from her vehicle there. (Id. ¶263). She then had to leave work during

the day so that she could drive Casey home, and Casey required Plaintiff to

deliver her dinner after work. (Id. ¶¶265–65).

These additional duties caused Plaintiff’s impairments to intensify, so

she requested various medical leaves of absence. (Id. ¶59). In March 2022,

she informed Casey of her diagnosis of anxiety and depression, explained

that the additional duties contributed to the impairments, and requested that

her additional duties be eliminated. (Id. ¶¶60–61). But Casey ignored these

requests. (Id. ¶63). And “Defendants made it clear that the job description

written and distributed by Schuylkill County contained a clause allowing for

any other duties assigned.” (Id. ¶224).

At a medical appointment in August 2021, her doctor called an

ambulance due to high blood pressure. (Id. ¶174). While waiting for the

ambulance, Plaintiff informed Defendants that she would not be returning to

work that day. (Id. ¶175). When she returned to work, Plaintiff “suffered

discriminatory comments from co-workers about her absence.” (Id. ¶176).

These comments were made in front of DiCasimirro. (Id. ¶177). Further,

“non-disabled employees similarly situated to Plaintiff who have requested

accommodations similar to those requested by Plaintiff,” such as intermittent

medical leaves, “were not terminated from employment.” (Id. ¶¶180, 187).

On July 16, 2022, Plaintiff tested positive for COVID-19. (Id. ¶64). The

CDC advised, and the County required, a five-day quarantine. (Id. ¶¶65–66).

So Plaintiff coordinated medical leave, (id. ¶67), which was approved by the

County’s human resource department. (Id. ¶68). But when Plaintiff returned

to work on July 22nd, (id. ¶71), Casey terminated Plaintiff and refused to

rehire her in another office. (Id. ¶¶71, 183).

Plaintiff’s termination notice, (Ex. B) (Doc. 13 at 59–60), which was

written by Casey, (Doc. 13 ¶114), listed several reasons for the discharge.

These included habitually showing up late, falsifying a time sheet, refusing

to work the service counter, leaving work without explanation, unexcused

absences, “abuse of the personal time policy,” mishandling court filings, and

neglecting court filings and matters. (Id. at 59–60). These offenses ranged

from mid-2017 to mid-2022. (Id.). Plaintiff avers that many of these offenses

are false, misrepresentative, “pretextual,” or a result of the additional duties

assigned by Casey interrupting her Clerk III duties. (Id. ¶¶82-85).

As to the last point, for instance, in March 2022, Casey told Plaintiff to

take her home from work before the end of the work day. (Id. ¶86). Plaintiff

protested because she had not yet finished her Clerk III duties, but Casey

repeated the demand and told her not to worry about the Clerk III duties. (Id.

¶87–88). Plaintiff complied, (id. ¶89), but the following day, DiCasimirro

confronted her about the unexcused absence, (id. ¶90), and suspended

Plaintiff for three days though Plaintiff told her the reason she left. (Id. ¶91).

Additionally, when Plaintiff attempted to enter the time required to

perform the additional duties on her time sheet, DiCasimirro would remove

the time. (Id. ¶226). For instance, in June 2022, Plaintiff arrived to work 90

minutes late after performing one of her additional duties, (id. ¶274), and

when she reported these 90 minutes on her time sheet, (id. ¶275),

DiCasimirro accused her of falsifying her time. (Id. ¶276).

After giving notice of termination, Casey pressured Plaintiff to provide

a resignation letter in lieu of termination. (Doc. 13 ¶74), and Plaintiff did so

involuntarily, (Doc. 13 ¶75; Doc. 13 at 62 (Ex. C)). The letter cited her health

as the reason for leaving employment. (Doc. 13 ¶76; Doc. 13 at 62). Plaintiff

also contacted County Human Resources to ask about filing a complaint of

discrimination and harassment based on her disability. (Id. ¶77). And since

the termination notice stated, “If you wish, you will be afforded a Loudermill

hearing,” (Doc. 13 at 60), Plaintiff informed the County that she wanted the

hearing, but Human Resources told her that she had surrendered her right

to a hearing. (Id. ¶117). Plaintiff was replaced by “an individual who is not

within Plaintiff’s protected class.” (Id. ¶186).

II. LEGAL STANDARD

In response to a complaint, a party may move for dismissal for “failure

to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

To survive dismissal, a complaint must make more than “conclusory or ‘bare-

bones’ allegations,” and “‘threadbare recitals of the elements of the cause of

action, supported by mere conclusory statements, do not suffice.’” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)). Instead, the complaint must “set out

‘sufficient factual matter’ to show that the claim is facially plausible.” Id.

(quoting Iqbal, 556 U.S. at 678).

When considering the complaint, the court applies a “two-part

analysis.” Id. “First,” the court “must accept all of the complaint’s well-pleaded

facts as true, but may disregard any legal conclusions.” Id. at 210–11.

“Second,” the court “must then determine whether the facts alleged in the

complaint are sufficient to show that the plaintiff has a plausible claim to

relief.” Id. at 211. In determining the sufficiency of the facts alleged, the court

must “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.” Phillips v. Cnty. of Allegheny, 515 F.3d 224,

233 (3d Cir. 2008).

III. DISCUSSION

A. Count I: Fourteenth Amendment – Due Process of Law

Plaintiff claims that Defendants violated her Fourteenth Amendment

right to due process by terminating her without notice or the opportunity for

a hearing. (Doc. 24 at 13). The Fourteenth Amendment provides that a state

shall not “deprive any person of life, liberty, or property, without due process

of law.” U.S. Const. amend. XIV, § 1. “The first step in analyzing a due

process claim is to determine whether the ‘asserted individual interest … [is]

encompassed within the [F]ourteenth [A]mendment’s protection of life,

liberty, or property.’” Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005)

(quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Plaintiff contends

that she had a property interest in her employment, and that Defendants

deprived her of this interest. (Doc. 24 at 14). Defendants argue that Plaintiff

did not have a property interest. (Doc. 16 at 11–13).

Plaintiff alleges that she “possessed a property interest in her Clerk III

position because she could only be terminated from her position for cause.”

(Doc. 13 ¶105). “[S]tate law determines whether … a property interest

exists.” Elmore, 399 F.3d at 282. Under Pennsylvania law, a “public

employee does not have any property interest in her employment within the

meaning of the Fourteenth Amendment because [she] serves solely at the

pleasure of her public employer, and can be dismissed for any legal reason

or for no reason at all.” Miller v. Clinton County, 544 F.3d 542, 552 (3d Cir.

2008). “[A] local government in Pennsylvania cannot provide its employees

with tenure status unless there exists express legislative authority to do so.”

Elmore, 399 F.3d at 282–83. So absent express legislative authority, public

employment is at-will and “[a]ny attempt by a municipality to alter an

employee’s status without enabling legislation … has no legal effect.” Id. at

282.

Plaintiff does not allege that the County had express legislative

authority to provide her with a property interest. She argues that her property

right arose from a unilateral contract, (Doc. 20 at 15), since (1) her

termination “allege[d] specific acts as the causal basis for termination,” and

(2) “Casey held out to Plaintiff that she could only be terminated for cause

by stating, ‘If you wish, you will be afforded a Loudermill1 hearing.’” (Id.

¶¶106–107). She also attempts to resist Elmore by citing the Pennsylvania

Superior Court’s holding that “the communication to employees of certain

rights, policies and procedures may constitute an offer of an employment

contract with those terms.” Hicks v. Glob. Data Consultants, LLC, 288 A.3d

875, 883 (Pa. Super. Ct. 2022) (quoting Evans v. Cap. Blue Cross, 269 A.3d

569, 575 (Pa. Super. Ct. 2022). (Doc. 20 at 15).

But Hicks does not contradict Elmore, as Plaintiff suggests, for that

case involved a private employer, and did not involve a due process claim.

Id. at 878–79, 881. Absent legislative authority, Defendants could not have

given Plaintiff protected status. So Plaintiff’s allegation that she could only

be terminated for cause is unavailing.

1 The term “Loudermill hearing” refers to Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532 (1985), where the Court held that certain public

sector employees can have a property interest in their employment, and in

such cases, employees who receive a notice of termination are entitled to a

hearing to present their side of the events resulting in the termination.

As Plaintiff does not allege facts demonstrating that her employment

was not at-will, she has not plead that she had a property interest in her

employment. So she has stated no Fourteenth Amendment due process

claim. Count I will therefore be dismissed.

B. Count II: Disability Discrimination – Failure to

Accommodate

Plaintiff next claims that the County violated the ADA by refusing her

request for accommodations. (Doc. 13 ¶¶122–140). Under the ADA, “no

covered entity shall discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, or privileges of

employment.” 42 U.S.C. § 12112(a). A “qualified individual with a disability”

is someone “who, with or without reasonable accommodation, can perform

the essential functions of the employment position that individual holds or

desires.” 42 U.S.C. § 12111(8).

Discrimination occurs when an employer does “not mak[e] reasonable

accommodations to the known physical or mental limitations of an otherwise

qualified individual … unless [the employer] can demonstrate that the

accommodation would impose an undue hardship on the operation of the

business.” 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations

include “job restructuring, part-time or modified work schedules,

reassignment to a vacant position, acquisition or modification of equipment

or devices, … and other similar accommodations for individuals with

disabilities.” 42 U.S.C. § 12111(9).

“A plaintiff bringing an ADA failure-to-accommodate claim must

establish that: ‘(1) [s]he was disabled and [her] employer knew about it; (2)

[s]he requested an accommodation or assistance; (3) [her] employer did not

make a good faith effort to assist; and (4) [she] could have been reasonably

accommodated.” Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir.

2017) (quoting Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240,

246 (3d Cir. 2006)).

Plaintiff asserts that the County violated the ADA “by refusing to grant

and/or implement Plaintiff’s requests for reasonable accommodations in the

form of eliminating the Additional Duties” assigned by Casey, (Doc. 13 ¶133),

and by “refus[ing] to engage in the interactive process to explore reasonable

accommodations that would have permitted Plaintiff to perform the essential

functions of her job.” (Id. ¶134). The County contends that the additional

duties were essential conditions of her employment. (Doc. 19 at 16–19). It

also submits that the proposed accommodation—eliminating the additional

duties—was not reasonable. (Id. at 19–21). Finally, it asserts that it provided

a reasonable accommodation—medical leave—in place of eliminating the

additional duties. (Id. at 21–22).

The court addresses the County’s arguments below.

a. The County’s argument that the additional duties were

essential functions of the Clerk III position

A “reasonable accommodation” may include “job restructuring.” 42

U.S.C. § 12111(9). “An employer may be required to restructure a job by

reallocating or redistributing nonessential, marginal job functions; however,

the employer is not required to reallocate essential functions.” 29 C.F.R. pt.

1630, app. 1630.2(o). In other words, “employers are not required to

accommodate an employee by removing an essential function or

restructuring a job as to avoid it, but, rather, they are to provide an

accommodation so as to enable the employee to perform such a function.

Skerski v. Time Warner Cable Co., 257 F.3d 273, 285 n.4 (3d Cir. 2001).

“The term essential functions means the fundamental job duties of the

employment position the individual with a disability holds or desires,” but not

“the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). “The

function may be essential because the reason the position exists is to

perform that function,” because “of the limited number of employees

available among whom the performance of that job function can be

distributed,” or because “[t]he function may be highly specialized so that the

incumbent in the position is hired for his or her expertise or ability to perform

the particular function.” 29 C.F.R. § 1630.2(n)(2). Further, “[e]vidence of

whether a particular function is essential includes, but is not limited to”:

(i) [t]he employer’s judgment as to which functions are essential; (ii)

[w]ritten job descriptions prepared before advertising or interviewing

applicants for the jobs; (iii) [t]he amount of time spent on the job

performing the function; (iv) [t]he consequences of not requiring the

incumbent to perform the function; (v) [t]he terms of a collective

bargaining agreement; (vi) [t]he work experience of past incumbents

on the job; and/or (iv) [t]he current work experience of incumbents in

similar jobs.

29 C.F.R. § 1630(n)(2)(3). This list of “factors for consideration” is “non-

exhaustive.” Skerski, 257 F.3d at 279.

The County argues that the additional duties were not essential

functions. It asserts that: “Based on Plaintiff’s allegations, there is no

difference between the ‘essential duties’ that she alleges she is able to

perform, and the ‘additional duties’ that Casey requested her to perform.”

(Doc. 19 at 18). The County points out Plaintiff’s allegations that many

employees in the Clerk office were also required to perform these duties,

such that a reasonable employee would believe that they were “the types of

services a clerk was employed to perform,” and that Plaintiff’s supervisors

indicated to her that the additional duties were part of her job description.

(Id.). Plaintiff argues that the additional duties were not essential, because

the County controlled the essential duties while Casey controlled the

additional duties, and because the additional duties were often performed

outside work hours. (Doc. 24 at 18).

The court concludes that the additional duties, as alleged, were not

essential. Plaintiff was not compensated for performing the additional duties

like she was for the other functions. Indeed, she was disciplined for

performing them in place of other functions. This distinction suggests that the

additional duties were not essential, but were instead of a lower priority than

Plaintiff’s clerk duties. Further, several considerations listed in the

regulations—that performance of the additional duties could be distributed to

more than just a limited number of employees, and that the additional duties

did not require specialized expertise that Plaintiff was specifically hired to

provide—suggest that the additional duties were not essential functions.

Finally, the additional duties were not specified in the job description, but

were instead encompassed by a catch-all clause.

Plaintiff was not compensated for the extra hours she worked on

additional duties, (Doc. 24 ¶219), and she was prohibited from entering those

hours on her time sheet. (Id. ¶225). When she attempted to enter the time,

DiCasimirro would remove it. (Id. ¶226). If the additional duties were

“essential” to Plaintiff’s position, 29 C.F.R. § 1630.2(n)(1), she would have

been compensated for them just as she was for her other duties. Plaintiff

also faced disciplinary action completing the additional duties in place of the

essential functions. For instance, in March 2022, Casey told Plaintiff to take

her home before the end of the work day. (Id. ¶86). Plaintiff protested

because she had not yet finished her Clerk III duties, but Casey repeated the

demand and told her not to worry. (Id. ¶87–88). Plaintiff complied, (id. ¶89),

but on the following day, DiCasimirro confronted her about the unexcused

absence, (Id. ¶90), and suspended Plaintiff for three days even after Plaintiff

told her the reason she left. (Id. ¶91). Presumably, if the additional duties

were “essential” to the job, 29 C.F.R. § 1630.2(n)(1), Plaintiff would not have

been disciplined for performing them when one of her supervisors instructed

her to do so.

Application of the regulations also suggests that the additional duties

were not essential. Plaintiff alleges that there was not a “limited number of

employees available among whom the performance of the [additional duties]

could be distributed,” 29 C.F.R. § 1630.2(n)(2), because “[m]any of the

employees in the clerk of courts office were required to perform Additional

Duties for Casey from time to time,” (Doc. 13 ¶220), and “[b]eing asked to

perform Additional Duties was commonplace in the Clerk of Courts office.”

(Id. ¶221). These allegations indicate that the additional duties could have

and already were distributed among several other employees. Plaintiff also

alleges that the additional duties were not “highly specialized” such that

Plaintiff was “hired for her expertise or ability to perform” them, 29 C.F.R. §

1630.2(n)(2), which allegation is supported by the nature of the alleged

additional duties: they consisted of everyday tasks like driving Casey to and

from work and packing gift baskets. (Doc. 13 ¶57).

On the other hand, weight is afforded to “[t]he employer’s judgment as

to which functions are essential” as well as to “[w]ritten job descriptions

prepared before advertising or interviewing applicants for the jobs.” 29

C.F.R. § 1630.2(n)(3). As Plaintiff alleges, “Defendants made it clear that the

job description written and distributed by Schuylkill County contained a

clause allowing for any other duties assigned.” (Doc. 13 ¶224). And of

course, Defendant now submits that these duties were essential. (Doc. 19 at

18). With regard to the job description, though, Defendant does not contradict

Plaintiff’s allegation that the additional duties were asserted to be covered

by the “clause allowing for any other duties assigned.” (Doc. 19 at 18 (citing

Doc. 13 ¶224)). This catch-all phrase gives no indication that the specific

additional duties challenged here were essential, so this factor does not

weigh in the County’s favor.

On balance, these considerations weigh in favor of concluding that the

additional duties, as alleged, were not essential functions.

b. The County’s comparison of Plaintiff’s requested

accommodation to the unreasonable accommodation

request in Gaul

The County also analogizes this case to Gaul v. Lucent Techs., Inc.,

where the Third Circuit found that a plaintiff’s request “to be transferred away

from individuals causing him prolonged and inordinate stress was

unreasonable as a matter of law under the ADA.” 134 F.3d 576, 579 (3d Cir.

1998). It reasoned that: (1) “compliance” with the accommodation

“depend[ed] entirely on Gaul’s stress level at any time”; (2) “the term

‘prolonged and inordinate stress’ [was] not only subject to constant change,

it [was] also subject to tremendous abuse” because “the only certainty for

[the employer] [was] its obligation to transfer Gaul to another department

whenever he [became] ‘stressed out’”; (3) the administrative burdens posed

“[required] far too much oversight and [were] simply not required under law”;

and (4) “Gaul [was] essentially asking this court to establish the conditions

of his employment.” Id. at 580–81.

These considerations do not apply to Plaintiff’s requested

accommodation. Plaintiff simply requested to be relieved of additional duties.

This request does not, like that in Gaul, depend on her stress level or impose

a constantly changing standard. Plus, there is little indication that Plaintiff’s

requested accommodation would pose an undue administrative burden.

Neither did Plaintiff’s request amount to asking to establish the conditions of

her employment. See id. at 581 (quoting Weiler v. Household Fin. Corp.,

1010 F.3d 519, 526 (7th Cir. 1996)). This type of accommodation would not

require “interfer[ing] with personnel decisions within an organizational

hierarchy,” as Gaul’s did. Id. (quoting Wernick v. Federal Reserve Bank of

N.Y., 91 F.3d 379, 384 (2d Cir. 1996)).

c. The County’s argument that it offered medical leave as an

alternative accommodation to eliminating the additional

duties

The County next observes that “an employee cannot make his

employer provide a specific accommodation if another reasonable

accommodation is instead provided.” Solomon v. Sch. Dist. of Phila., 882 F.

Supp. 2d 766, 779 (E.D. Pa. 2012) (citing Hankins v. The Gap, Inc., 84 F.3d

797, 800–01 (6th Cir. 1996)). In other words, the employer may “choose

between effective accommodations, and may choose the less expensive

accommodation or the accommodation that is easier for it to provide.”

Solomon, 882 F.Supp.2d at 779 (citing 29 C.F.R. pt. 1630, app. § 1630.9(a)).

“The employer must show … that the proposed accommodation was not

reasonable or would have caused it undue hardship, or that the employer

proposed a reasonable accommodation that the plaintiff rejected.” Id.

Although the County posits that Plaintiff’s medical leave constitutes a

reasonable alternative accommodation, (Doc. 19 at 22), Plaintiff’s allegation

is that she requested duty-elimination in addition to the medical leave, not

that she rejected medical leave in favor of eliminating the additional duties.

(Doc. 13 ¶61), suggesting that medical leave alone was insufficient to allow

her to perform her essential duties. So the County’s argument regarding

medical leave is unavailing.

The court concludes that Plaintiff’s requested accommodation, as

alleged, was reasonable.

***

As a last effort to dismiss Plaintiff’s Count II, the County argues that

Count II should be dismissed as redundant. (Doc. 19 at 24). It contends that

Count II and Count III both arise out of the same allegations, and “a claim

that an employer failed to accommodate an employee’s disability is best

viewed not as an independent claim under the ADA, but as a theory that may

support a discrimination claim, with disparate treatment representing another

possible theory.” (Id. (citing Solomon, 882 F.Supp.2d at 776)).

Even assuming that redundancy were an appropriate basis for

dismissal under Rule 12(b)(6), cf. Crighton v. Schuylkill Cnty., 882 F. Supp

411, 415 (E.D. Pa. 1995) (“Motions to dismiss pursuant to Rule 12(b)(6) test

the validity of the complaint. A claim that is redundant is not necessarily

invalid.”), the court is not convinced that Counts II and III are redundant.

Plaintiff alleges facts to support Count II that are separate than the facts she

alleges to support Count III. Count II is based on the allegation that

Defendant unlawfully refused to relieve Plaintiff of the additional duties, while

Count III is based on the allegation that Defendant terminated Plaintiff

because of her disability. Accordingly, Count II will not be dismissed on the

basis of redundancy, either.

In sum, the court concludes that the accommodation requested by

Plaintiff, as alleged, was reasonable. Plaintiff has also alleged that

Defendants did not make a good faith effort to assist her. (See Doc. 13

¶¶131–35). And Defendants do not dispute that Plaintiff has alleged that she

was disabled and that they knew about her disability. So she has stated a

failure-to-accommodate claim under the ADA, and Count II will not be

dismissed.

C. Count III: Disability – Discrimination

To establish a prima facie case of disability discrimination under the

ADA, a plaintiff must show that: (1) “[s]he is a disabled person within the

meaning of the ADA; (2) [s]he is otherwise qualified to perform the essential

functions of the job, with or without reasonable accommodations by the

employer; (3) [s]he has suffered an otherwise adverse employment decision

as a result of discrimination.” Gaul, 134 F.3d at 580.

As to the third element, Plaintiff relies on conclusory allegations of

discrimination. (Doc. 24 at 20–21 (citing Doc. 13 ¶¶158, 160, 183, 280, 281)).

Although she has alleged that she suffered an adverse employment action—

her termination, (Doc. 13 ¶¶91–93)—Plaintiff has not made factual

allegations suggesting that this action was taken as a result of discrimination.

Her references to the County’s “discrimination” or description of her

termination as “on account of her Disability,” (id. ¶¶158, 160), do nothing to

make plausible an inference that the County actually acted on the basis of

disability. Neither does her allegation that the County “used [Plaintiff’s]

absences to justify” the adverse actions suggest that these actions were

taken as a result of Plaintiff’s disability.

Plaintiff also alleges that she was terminated because “Defendant

knew or suspected that the seriousness of [her disability] might require future

intermittent medical leaves of absence,” and so the County “terminated [her]

employment rather than accommodate future foreseeable requests for

accommodations with intermittent medical leaves.” (Doc. 13 ¶152). But these

are just speculations unsupported by factual allegations. Plaintiff’s other

allegations of discrimination are similarly conclusory. For instance, she

alleges that Defendants’ bases for terminating her were “a pretext for

unlawful discrimination,” (id. ¶154), without offering supporting factual

allegations.

And although Plaintiff alleges that she faced “discriminatory

comments” from her co-workers, (id. ¶176), she does not allege that these

co-workers played a role in the decision to terminate her. She has not made

factual allegations plausibly suggesting that the County took any adverse

employment action “as a result of” discrimination. Gaul, 134 F.3d at 580. So

Plaintiff has failed to state a claim for disability discrimination in connection

with her termination, and Count III will be dismissed.

D. Count IV: ADA Retaliation

The County does not move to dismiss Count IV. (Doc. 14 ¶6). So Count

IV will not be dismissed.

E. Count V: Failure to Pay Wages – FLSA (Counts V and VI)

Plaintiff next claims that Defendants violated the FLSA by failing to pay

her minimum or overtime wages. (Doc. 13 ¶¶235, 238, 259).

First, the court agrees with Defendants that Plaintiff has stated no

FLSA minimum wage claim. (Doc. 16 at 16–17; Doc. 19 at 27). The Act

mandates that employees be paid a wage of $7.25 an hour. 29 U.S.C.

§206(a)(1). To state a claim under this provision, “a plaintiff must allege that

his/her average hourly wage falls below the federal minimum wage.” Nardelli

v. Lamparski, No. 2-20-CV-1723, 2023 WL 3901299, at *3 (W.D. Pa. June

8, 2023). So “pure gap time claims”—claims for unpaid non-overtime hours

by employees whose average hourly rate exceeds the minimum wage—“are

not cognizable under the FLSA.” Davis v. Abington Memorial Hosp., 765 F.3d

236, 244 (3d Cir. 2014).

Plaintiff alleges that she was paid $23.50 an hour and “typically worked

35 hours a week.” (Doc. 13 ¶215). She does not allege that her average

wage for any week fell below $7.25, and her complaint’s allegations do not

make such an inference plausible. So she has failed to state a claim for

violation of the FLSA’s minimum wage provision. Plaintiff appears to

concede this much. (Doc. 24 at 24).

Second, Defendants contend that Plaintiff has not made sufficient

factual allegations to state an FLSA overtime claim. (Doc. 16 at 14–16; Doc.

19 at 27). Where an employee works a workweek longer than 40 hours, she

must be compensated “at a rate not less than one and one-half times the

regular rate at which [s]he is employed.” 29 U.S.C. §207(a).

“[T]o state a plausible FLSA overtime claim, a plaintiff must sufficiently

allege forty hours of work in a given workweek as well as some

uncompensated time in excess of the forty hours.” Davis, 765 F.3d at 241–

42 (quoting Lundy v. Catholic Health System of Long Island Inc., 711 F.3d

106, 114 (2d Cir. 2013)). This pleading standard does not require that a

plaintiff “identify the exact dates and times that she worked overtime”; rather,

a “claim that she ‘typically’ worked forty hours per week, worked extra hours

during such a forty-hour week, and was not compensated for extra hours

beyond forty hours … she worked during one or more of those forty-hour

weeks, would suffice.” Id. at 243.

In support of her overtime claim, Plaintiff points to her allegation that

she “drove Casey to political dinners and help[ed] her collect signatures for

her campaign for over six hours after working 35 hours that week.” (Doc. 13

¶218; Doc. 20 at 17; Doc. 24 at 24). Defendants acknowledge that Plaintiff

has alleged one workweek in which she worked 41 hours and was not

compensated for the overtime hour. (Doc. 16 at 16; Doc. 19 at 25, 27). Under

Davis, that is enough. See 765 F.3d at 243.

Casey also raises a statute of limitations defense. (Doc. 16 at 16). An

FLSA overtime claim must be brought “within two years after the cause of

action accrued,” unless it arose out of a “willful violation,” in which case it

must be brought within three years. 29 U.S.C. §255(a). Because “Casey last

ran for Clerk of Courts in 2019,” she submits, and Plaintiff’s action was

commenced in 2024, an FLSA claim is outside the statute of limitations. (Doc

16 at 16). Plaintiff does not respond to this argument in her brief in opposition

to Casey’s motion. (Doc. 20 at 17).

A statute of limitations defense may “be raised by a motion under Rule

12(b)(6), but only if the time alleged in the statement of a claim shows that

the cause of action has not been brought within the statute of limitations.”

LabMD Inc. v. Boback, 47 F.4th 164, 179 n.9 (3d Cir. 2022) (quoting

Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002)). “If the bar is not

apparent on the face of the complaint, then it may not afford the basis for a

dismissal of the complaint under Rule 12(b)(6).” Id. (quoting Robinson, 313

F.3d at 135).

The statute of limitations bar is not apparent on the face of Plaintiff’s

complaint, because the Complaint does not indicate when Plaintiff’s unpaid

overtime occurred or when Casey last campaigned for Clerk of Courts. So

Casey’s statute of limitations defense may not afford the basis for dismissal

of Plaintiff’s FLSA claim under Rule 12(b)(6). Count V will therefore not be

dismissed at this time.

Third, Plaintiff in County VI alternatively brings an FLSA minimum

wage claim against Casey individually. (Doc. 13 ¶¶241–68). This claim is

based on 29 U.S.C. §206(f), which requires the payment of minimum wages

to those who are “employed in domestic services in a household.” (Doc. 13

¶246). “Domestic service employment means services of a household nature

performed by an employee in or about a private home (permanent or

temporary).” 29 C.F.R. §552.3; Madison v. Res. for Hum. Dev., Inc., 233 F.3d

175, 181 (3d Cir. 2000) (“We agree with the District Court’s reliance on 29

C.F.R. §552.3 to determine the meaning of ‘domestic service.’”).

In opposition to Casey’s motion to dismiss Count VI, Plaintiff relies on

her allegations that she acted as a “chauffeur” and performed other tasks “of

a household nature” for Casey, such as packing donation baskets in

connection with campaign events. (Doc. 20 at 18 (citing Doc. 13 ¶¶57, 249–

50, 263–65, 332)). Plaintiff asserts that chauffeur work is “specifically listed

in 29 U.S.C. §206(f),” (id.); it is not. But it is listed in a regulation defining

“domestic service employment.” 29 C.F.R. §552.3.

Again, section 206(f) applies to “domestic service in a household.” 29

U.S.C. §206(f). And the regulations limit “domestic service employment” to

those services “of a household nature” which are performed “in or about a

private home (permanent or temporary).” 29 C.F.R. §552.3.

Casey argues that Plaintiff “does not allege that she performed

services in or about Casey’s home or in a domestic service capacity.” (Doc.

16 at 19). There is no allegation that Plaintiff performed services in Casey’s

home. But there are allegations that she was required to “pick[] up dinners

for Casey after work hours and deliver[] [them] to her home,” “pick[] Casey

up from her home to take her to work,” and “tak[e] Casey home from work.”

(Doc. 13 ¶57).

Among the illustrative examples of “domestic services employment,”

29 U.S.C. §552.3 includes “services performed by employees such as …

chauffeurs of automobiles for family use.” Casey urges the court to ignore

the “chauffeur” label used by Plaintiff, and instead recognize that the alleged

context of Plaintiff’s driving duties was “transportation to or from work, and

political or campaign-related activities.” (Doc. 16 at 18).

Plaintiff’s allegations do not match §552.3’s example. The alleged

“chauffeur” duties here—food delivery and transportation to and from work—

do not constitute services for “family use” or “services of a household nature.”

See 29 U.S.C. §552.3. These types of services are not particular to families

or households but are instead commonly performed by independent

contractors unconnected to, and outside of, individual households. Neither

is packing donation baskets work of a household nature.

The court concludes that Plaintiff has not alleged that she was

employed by Casey “in domestic service in a household.” 29 U.S.C.

§206(f)(1). Count VI, which is based on §206(f), (Doc 13 ¶246), will therefore

be dismissed.

F. Count VII: Retaliation – FLSA

Plaintiff also brings a claim of retaliation under the FLSA. (Doc. 1

¶¶269–87). The FLSA makes it unlawful “to discharge or in any other manner

discriminate against an employee because such employee has filed any

complaint or instituted or caused to be instituted any proceeding under or

related to [Chapter 8 of Title 29].” 29 U.S.C. §215(a)(4). An oral complaint

may suffice for purposes of this provision, Kasten v. Saint Gobain

Performance Plastics Corp., 563 U.S. 1, 17 (2011), but any “complaint must

be sufficiently clear and detailed for a reasonable employer to understand it,

in light of both content and context, as an assertion of rights protected by the

statute and a call for their protection.” Id. at 14.

Defendants argue that Plaintiff has not alleged that she engaged in

protected activity under the FLSA. (Doc. 16 at 20–22; Doc. 19 at 29). Plaintiff

relies on her allegations that she “attempted to obtain payment for the

Additional Duties she performed by reporting this time on her Schuylkill time

sheet” and “[l]ater, … filed an oral complaint to Dicasimirro after DiCasimirro

accused Plaintiff of falsifying her timesheet.” (Doc. 13 ¶¶275–76). She

alleges that her oral complaint “constitutes protected activity under the

FLSA.” (Id. ¶279).

Plaintiff’s allegation of an “oral complaint” alone cannot amount to a

protected activity, because it does not contain any indication that the

complaint was about an asserted violation of the FLSA. And read in context,

the thrust of this alleged complaint was that Plaintiff should have been paid

for the time spent performing the additional duties. But the FLSA only

guarantees a minimum wage and time-and-a-half for overtime hours. A

complaint that certain hours went unpaid does not itself constitute an FLSA

claim unless it is also asserted that the employee’s average wage fell below

the minimum wage or that she worked overtime hours without time-and-a-

half pay. See Davis, 765 F.3d at 244. So Plaintiff’s factual allegations

regarding her oral complaint do not make plausible an inference that such

complaint would reasonably have been understood as an FLSA complaint.

She has therefore not alleged that she engaged in protected activity.

Accordingly, Count VII will be dismissed.

G. Count VIII: Failure to Pay Wages – WPCL

Plaintiff next brings a claim under the Pennsylvania Wage Payment

and Collection Law, 43 Pa. Stat. §§260.1–260.45. (Doc. 13 ¶¶288–320). The

WPCL provides that “[e]very employer shall pay all wages, other than fringe

benefits and wage supplements, due to his employees on regular paydays

designated in advance by the employer.” 43 Pa. Stat. §260.3(a). “Employer,”

as used in the WPCL, “[i]ncludes every person, firm, partnership,

association, corporation, receiver or other officer of a court of this

Commonwealth and any agent or officer of any of the above-mentioned

classes employing any person in this Commonwealth.” §260.2a.

Defendants argue that the WPCL does not apply to them: the County

because its definition of employer “does not include municipal corporations.”

(Doc. 19 at 30), and Casey because the definition “does not include elected

officials.” (Doc. 16 at 23).

As the parties point out, (Doc. 24 at 26–28; Doc. 19 at 30; Doc. 28 at

14–16), there is some division as to whether the WPCL’s definition of

“employer” includes municipal corporations. Compare Paparo v. Borough of

Yeadon, No. 22-841, 2024 WL 406753, at **11–12 (E.D. Pa. Feb. 2, 2024),

with Carstetter v. Adams Cnty. Transit Auth., No. 1:06-cv-1993, 2008 WL

2704596, at *14 (M.D. Pa. July 8, 2008); Porter ex rel. Philipsburg-Osceola

Educ. Ass’n v. Philipsburg-Osceola Sch. Dist., 633 A.2d 220, 223 (Pa.

Commw. Ct. 1993); and Huffman v. Borough of Millvale, 591 A.2d 1137,

1139 (Pa. Commw. Ct. 1991). But the County is not a municipal corporation.

Chester Cnty. v. Phila. Elec. Co., 218 A.2d 331, 425 (Pa. 1966) (“The County

is merely a political subdivision of the Commonwealth; not a municipal

corporation.”). So the inclusion of “corporation[s]” in the definition of

“employer” does not cover the County.

Nor, for that matter, does the inclusion of “every person.” The word

“person” used in a Pennsylvania statute enacted after 1937 “includes … a

government entity (other than the Commonwealth),” “unless the context

clearly indicates otherwise.” 1 Pa. Cons. Stat. §1991. Here, the statute

includes “every person,” but it also specifically includes “officer[s] of a court

of this Commonwealth.” 43 Pa. Stat. §260.3a. The statute’s specific

inclusion of a particular governmental entity makes clear that the General

Assembly did not intend to also include all other governmental entities within

the statute’s use of the word “person.” Cf. Morrow v. Cnty. of Montgomery,

Pa., No. 13-1032, 2014 WL 348625, at **2–3 (E.D. Pa. Jan. 31, 2014) (“While

no court has directly ruled on the applicability of the [Pennsylvania Minimum

Wage Act] to government entities, decisions on [the] analogous [WPCL]

make clear that where the legislature has omitted government entities from

coverage in the language of the statute, courts should not read the statute to

include these entities.” (first citing Phillipsburg-Osceola, 633 A.2d at 223, and

then citing Huffman, 591 A.2d at 1138–39)); see also Mimi Investors, LLC v.

Tufano, 297 A.3d 1272, 1286 n.21 (Pa. 2023) (“[U]nder the doctrine of

expression unius est exclusion alterius, the inclusion of a specific matter in

a statute implies the exclusion of other matters.”). The court therefore

concludes that the WPCL does not cover the County, and so Plaintiff has

stated no WPCL claim against the County.

That leaves Plaintiff’s WPCL claim against Casey. Plaintiff has alleged

that Casey was the Clerk of Courts. (Doc. 13 ¶24). “The office of the clerk of

the courts shall have the power and duty to … [e]xercise the authority of the

clerk of the courts as an officer of the court.” 42 Pa. Cons. Stat. §2757(4).

And term “employer,” as used in the WPCL, includes “every … officer of a

court of this Commonwealth,” 43 Pa. Stat. §260.2a, so the WPCL applies to

Casey.

Still, “[t]he WPCL does not create a right to compensation; it provides

a statutory remedy when the employer breaches a contractual obligation to

pay earned wages.” Oxner v. Cliveden Nursing & Rehab. Ctr., 132 F. Supp.

3d 645, 649 (E.D. Pa. 2015) (citing De Asencio v. Tyson Foods, Inc., 342

F.3d 301, 309 (3d Cir. 2003)). “Where an employee does not work under a

written employment contract or collective bargaining agreement, the

employee will have to establish the formation of an implied oral contract to

recover under the WPCL.” Id. (citing De Asencio, 342 F.3d at 309–10).

Casey argues that Plaintiff has not alleged the existence of a contract

between Casey and Plaintiff. (Doc. 16 at 23–25). Plaintiff asserts that she

has alleged the existence of an implied contract. (Doc. 20 at 20–21).

The court assesses Plaintiff’s assertion of an implied contract against

the following standard:

A contract, implied in fact, is an actual contract which arises

where the parties agree upon the obligations to be incurred, but

their intention, instead of being expressed in words, is inferred

from their acts in the light of the surrounding circumstances. An

implied contract is an agreement which legitimately can be

inferred from the intention of the parties as evidenced by the

circumstances and the ordinary course of dealing and the

common understanding of men.

Generally, there is an implication of a promise to pay for

valuable services rendered with the knowledge and approval of

the recipient, in the absence of a showing to the contrary. A

promise to pay the reasonable value of the service is implied

where one performs for another, with the other’s knowledge, a

useful service of a character that is usually charged for, and the

latter expresses no dissent or avails himself of the service. A

promise to pay for services can, however, only be implied when

they are rendered in such circumstances as authorized the party

performing to entertain a reasonable expectation of their

payment by the party benefited. The service or other benefit must

not be given as a gratuity or without expectation of payment, and

the person benefited must do something from which his promise

to pay may be fairly inferred. When a person requests another to

perform services, it is ordinarily inferred that he intends to pay for

them, unless the circumstances indicate otherwise. However,

where the circumstances evidence that one’s work effort has

been voluntarily given to another, an intention to pay therefor

cannot be inferred.

Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 668–

69 (Pa. Super. Ct. 2014) (internal quotations and citations omitted).

The court concludes that Plaintiff has set out factual allegations from

which the existence of an implied contract between her and Casey can

reasonably be inferred. She has alleged that she was employed by the

County in the Clerk of Courts office, that Casey supervised DiCasimirro, who

supervised Plaintiff, and that Casey assigned Plaintiff duties such as driving

Casey to and from work and delivering meals. (Id. ¶¶ 25, 31–32, 57). These

are useful services of the character usually charged for. And the

circumstances alleged—assignment of tasks by a supervisor in an

employment context—do not indicate that these services were provided

voluntarily. Plus, since Casey is alleged to have assigned them, it can also

be inferred that she had knowledge of these services and availed herself of

them. Though Plaintiff would likely have expected the County to compensate

her, the nature of these services could also support an expectation that, if

the County did not compensate her for them, Casey would.

Plaintiff has further alleged that she was not permitted to enter the time

spent performing these services on her timesheet, (id. ¶¶225–26), which

allegation allows the inference that she was not paid for these services.

Based on these allegations, Plaintiff has stated a plausible claim against

Casey that Casey, as her employer, failed to pay her wages due, in violation

of the WPCL. Count VIII will therefore be dismissed as against the County

but not dismissed as against Casey.

H. Count IX: Failure to Pay Wages: PMWA

Lastly, Plaintiff claims that Casey violated the Pennsylvania Minimum

Wage Act, 43 Pa. Stat. §§333.101–333.115, (Doc. 13 ¶¶321–36), “by failing

to properly pay Plaintiff for all hours worked.” (Id. ¶329).

The PMWA provides that “[e]very employer shall pay to each of his or

her employes for all hours worked” a specified minimum wage. 43 Pa. Stat.

§333.104. An “employer” under the Act “includes any individual, partnership,

association, corporation, business trust, or any person or group of persons

acting, directly or indirectly, in the interest of an employer in relation to any

employe.” §333.103(g).

Casey argues that she is not an employer because “[t]he definition of

an employer under the PMWA does not include an elected official or row

officer.” (Doc. 16 at 25). Plaintiff contends that her allegation is that “Casey,

as an individual, hired Plaintiff to work a second job.” (Doc. 20 at 23).

As discussed supra Section III.G, Plaintiff has made factual allegations

from which an implied employment contract between her and Casey can be

inferred. While the PMWA does not apply to political subdivisions, see

McKinney v. Chester Cnty., No. 20-1756, 2021 WL 409975, at *5 (E.D. Pa.

Feb. 5, 2021); Morrow, 2014 WL 348625, at *3, Plaintiff argues that Casey

employed her as an individual. (Doc. 20 at 23). Because the services alleged,

such as driving Casey to or from her home or delivering meals, were of a

partly personal nature, and based on the allegation that Plaintiff was not

permitted by the County to record her time spent performing these services,

it could be inferred (alternatively) that Casey employed Plaintiff as an

individual, rather than as Clerk of Courts. And Plaintiff has alleged that she

was not paid at all for the services she performed for Casey. So she has

stated a plausible claim against Casey for violation of the PMWA. Count IX

will therefore not be dismissed.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss will be

granted in part and denied in part. Counts I, III, VI, and VII will be dismissed.

Count VIII will be dismissed as to the County. An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: August 28, 2024

23-245-01