WIKER v. Lancaster General Health

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARK WIKER : CIVIL ACTION

:

:

v. : NO. 24-2592

:

LANCASTER GENERAL HEALTH, et al. :

MEMORANDUM

SCHMEHL, J. /s/ JLS DECEMBER 13, 2024

Plaintiff brought this action, claiming he was terminated from his

employment with Defendants as a registered nurse because of his disability (injuries

sustained in a motor vehicle accident), age (over 40 years old) and sex (male). Named

as Defendants are Lancaster General Health d/b/a Penn Medicine Lancaster General

Health (“LGH”) and the Trustees of the University of Pennsylvania d/b/a Penn Health

(“Penn”). Plaintiff claims that the Defendants’ alleged actions violated the Americans

with Disabilities Act (“ADA”) (Count I), Title VII of the Civil Rights Act-Sex Discrimination

(Count II), the Age Discrimination in Employment Act (“ADEA”) (Count III), and the

Pennsylvania Human Relations Act-Age, Sex and Disability Discrimination (“PHRA”)

(Count IV). Plaintiff has also asserted a count for retaliation under Title VII, the ADEA,

the ADA and the PHRA (Count V). Presently before the Court is Defendants’ Fed. R.

Civ. P. 12(b)(6) motion to dismiss Counts I-IV of the First Amended Complaint for failure

to state a claim. For the reasons that follow, the motion is granted.

To survive dismissal under Federal Rule of Civil Procedure 12(b)(6), the

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127

S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when the facts pled

“allow[ ] the court to draw the reasonable inference that [a] defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “[W]here the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’

” Id. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2)).

When the complaint includes well-pleaded factual allegations, the Court “should

assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.

2016) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). However, this “presumption of

truth attaches only to those allegations for which there is sufficient factual matter to

render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336,

347 (3d Cir. 2016) (internal quotation and citation omitted). “Conclusory assertions of

fact and legal conclusions are not entitled to the same presumption.” Id.

Plaintiff is a male adult individual over the age of 40. ECF 6-1 at 3. Plaintiff

was hired as a nurse by LGH in 2001 and started as a registered nurse in LGH’s intensive

care unit. Id. at ¶24. On September 13, 2021, Plaintiff allegedly sustained serious injuries

as the result of a motor vehicle collision outside the LGH Sleep Center. Id. at ¶27. As the

result of the motor vehicle accident, Plaintiff suffered physical and mental impairments

that substantially limited him in one or more of the major life activities, including caring for

himself, walking, seeing working, sitting, lifting and standing. Id. at ¶30. The injuries also

affected Plaintiff’s neurological and neuromuscular systems. Id. at ¶31. From September

of 2021 through March 2022, Plaintiff was “placed on light duty, and reassigned to thermal

screening of persons visiting LGH in response to the COVID-10 Public Health

Emergency.” Id. at ¶28.

On April 5, 2022, Plaintiff was contacted by Defendants’ Nurse Manager,

regarding the need for Plaintiff to complete “annual competencies.” Id. at ¶33. Plaintiff

advised that his injuries from the motor vehicle accident were preventing him from working

on a computer and the Nurse Manager and Assistant Nurse Manager suggested he

complete his competencies at home with the assistance of family members. Id. at ¶35.

On April 14, 2022, Plaintiff submitted his application to renew his nursing

license with the Pennsylvania Department of State (“DOS”). Id. at ¶36. Plaintiff alleges

that at that time, Defendants “had cut-off [his] network access, thereby interfering in his

ability to complete his license renewal.” Id. at ¶37. Plaintiff alleges that his network access

was restored on April 20, 2022 and that within five days, he had completed half of the

required competencies. Id. at ¶38. Plaintiff alleges that on April 25, 2022, Defendants’

Compliance Team again reminded Plaintiff that his registered nurse license was about to

expire even though Plaintiff “had already started the renewal process and was actively

working on competencies despite the ongoing consequences of his injuries from the

[motor vehicle accident].” Id. at ¶39.

On April 27, 2022, Plaintiff informed the Compliance Team that he was

working on his license renewal and “needed their assistance to complete the child abuse

portion of license renewal.” Id. at ¶40. The Compliance Team responded that they “do

not share information with the state,” and therefore could not help Plaintiff with that

process. Id.

On May 9, 2022, Plaintiff underwent eye surgery as the result of the injuries

he sustained in the motor vehicle accident. Id. at ¶41. Plaintiff alleges that on May 10,

2022, his access to the network was inexplicably blocked again. Id. at ¶42. He alleges

that between April 27, 2022 and June 15, 2022, he pressed his nursing managers about

the delays he was having in completing his license renewal. Id. Plaintiff alleges that in

early June, he was in regular contact with the DOS about the technical issues he was

having in completing his license renewal. Id. at ¶43. He also alleges that he was in regular

contact with his Nurse Manager who told Plaintiff that she would work with him and

provide the necessary time for him to complete the requirements of his license renewal.

Id. at ¶44.

On June 16, 2022, Defendants, via email, spontaneously imposed a

deadline of June 20, 2022 for Plaintiff to complete the license renewal process. Id. at ¶45.

In the same email, Defendants for the first time offered assistance by providing a link to

“approved providers below (link) that count towards continuing education credits for

professional licenses.” Id. at ¶46.

On June 21, 2022, Defendants terminated the Plaintiff’s employment

without providing a reason. Id. at ¶47. On July 21, 2022, with the assistance of Plaintiff’s

State Senator, the DOS renewed Plaintiff’s license retroactive to June 20, 2022. Id. at

¶48. Despite the reinstatement of Plaintiff’s license as of June 20, 2022, the Defendants

refused to reinstate him. Id. at ¶55.

Plaintiff alleges that the June 20, 2022 deadline was arbitrarily imposed by

Defendants because he was a qualified individual with a disability with whom the

Defendants did not wish to have an interactive process, he was a male, and he was over

40 years of age. Id. at ¶105.

Plaintiff alleges that because he repeatedly complained that his termination

was discriminatory, Defendants retaliated against him by opposing his application for

unemployment compensation benefits. Id. at ¶¶50,51. Plaintiff further alleges that

Defendants retaliated against him by claiming before the Unemployment Compensation

Board of Review Referee that Plaintiff was terminated for “willful misconduct” and by

presenting “manipulated documents” to the Referee. Id. at ¶¶52,53. Plaintiff further claims

the Defendants retaliated against him by refusing to hire him for two positions for which

he claims he was qualified, id. at ¶¶56-59, and that Defendants fabricated a third

application for employment which contained factual inaccuracies. Id. at ¶61,62. Plaintiff

alleges that instead of rehiring him, Defendants hired a less-qualified, younger, female

applicant who did not have a history of a disability. Id. at ¶¶ 59, 60, 118.

Under the Pennsylvania Professional Nursing Law and the Pennsylvania

State Board of Nursing’s regulations, all registered nurses must maintain an active

license. See 63 P.S. § 213(a) (precluding those without a license to practice professional

nursing in the Commonwealth from the practice of professional nursing); see also 49 Pa.

Code § 21.1 (defining “[r]egistered nurse” as a “[a] nurse licensed under this subchapter

to practice in this Commonwealth.”) (emphasis added).

In Pennsylvania, registered nursing licenses expire every two years, either

on April 30 or October 31. See 49 Pa. Code §21.29(a). “Notice of the renewal period of a

license will be sent to each active licensee prior to the expiration date of the licensee's

license.” See 49 Pa. Code § 21.29(b).

In addition, in order to maintain an active license, a registered nurse must

meet the requirement of continuing education as follows:

(a) Requirement of continuing education. A registered nurse

seeking licensure renewal shall complete 30 hours of

continuing education approved by the Board during the

biennial period immediately preceding the application for

renewal in accordance with section 12.1 of the act (63 P.S. §

222) and this subchapter. At least 2 of the 30 hours shall be

completed in approved continuing education in child abuse

recognition and reporting requirements in accordance with §

21.508(b) (relating to child abuse recognition and reporting--

mandatory training requirement). The Board will not renew a

license of a registered nurse who fails to verify compliance

with the continuing education requirement. A registered nurse

whose license is not renewed by the expiration of the biennial

period may not engage in the practice of professional nursing

until the continuing education requirements are satisfied and

the license has been renewed, reinstated or reactivated.

49 Pa. Code §21.131(a).

(g) Waiver. A registered nurse may request a waiver of the

continuing education requirement because of serious illness,

military service or other demonstrated hardship. The

registered nurse shall submit the request and any supporting

documentation to the Board in writing at least 90 days prior to

the registered nurse's license expiration date unless an

emergency or hardship occurs within the 90-day period. The

Board will grant, deny or grant in part the request for waiver.

49 Pa. Code §21.131(g).

A regulation for the Equal Employment Opportunity Commission (“EEOC”)

provides that a “qualified individual with a disability” is one “who satisfies the requisite

skills, experience, education and other job-related requirements of the employment

position such individual holds or desires, and who, with or without reasonable

accommodation, can perform the essential functions of such position.” 29 C.F.R. §

1630.2(m). Our Court of Appeals has previously adopted the EEOC's two-step inquiry as

the test for whether an individual is qualified within the meaning of the ADA. McNelis v.

Pa. Power & Light Co., 867 F.3d 411, 415 (3d Cir. 2017); Deane v. Pocono Med. Ctr.,

142 F.3d 138, 145 (3d Cir. 1998) (en banc). Under the first step, the Court must determine

whether the plaintiff “satisfies the prerequisites for the position such as possessing the

appropriate educational background, employment experience, skills, licenses, etc.” 29

C.F.R. pt. 1630, app. § 1630.2(m); Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir.

1998). Under the second step, the court must consider “whether or not the individual can

perform the essential functions of the position held or desired, with or without reasonable

accommodation.” Id.

Here, Plaintiff is not qualified under the first step. Plaintiff’s registered

nursing license expired on April 30, 2022. See 49 Pa. Code §21.29(a). While Plaintiff

began the renewal process on April 14, 2022 by submitting his application for renewal to

the DOS, he was unable to complete the continuing legal education requirement by

April 30, 2022. It appears Defendants worked with Plaintiff for nearly two months after

the April 30, 2022 deadline to get his requirements completed but finally imposed a new

deadline of June 21, 2022. Plaintiff alleges that his “light duty” work lasted until March of

2022. at ¶28. He does not allege in the First Amended Complaint what, if any, type of

work he was performing thereafter until the date of his termination.1

1 Furthermore, the Defendants could have exposed themselves to a claim of corporate negligence or

corporate liability had they allowed Plaintiff to perform the duties of a registered nurse with an expired

license.

By Plaintiff’s own account, he had not renewed his nursing license at the

time he was terminated on June 21, 2022. Nor are there any allegations in the First

Amended Complaint that Plaintiff ever requested 90 days prior to the expiration of his

license on April 30, 2022 a waiver from the State Board of his continuing legal education

requirement due to serious illness or other hardship such as the technical issues he

alleges the Defendants were causing him in renewing his license. The DOS is simply

not required, as Plaintiff suggests, to ensure that a registered nurse takes the proper

steps to renew his license. As a result, Plaintiff lacked the job-related requirement of

being licensed as a registered nurse as required by Pennsylvania law. Accordingly, at

the time he was terminated, Plaintiff was not a “qualified individual with a disability.”

Likewise, in order to maintain claims for gender-based or age-based

discriminatory discharge under Title VII or the ADEA, a plaintiff must allege facts

demonstrating that he was qualified for his position See Fowler v. AT&T, Inc., 19 F.4th

292, 303 (3d Cir. 2021) (ADEA); Coleman v. Pennsylvania State Police, 561 Fed. Appx.

138, 143-46 (3d Cir. 2014) (Title VII). As discussed, supra, Plaintiff has failed to

establish that he was qualified for his position at the time he was terminated on June 21,

2022.

Plaintiff argues that since the State Board later retroactively reinstated his

nursing license as of June 20, 2022, he was actually qualified as of the day of his

termination on June 21, 2022.

However, the determination of whether a plaintiff is qualified for the

position in question is made at the time when the challenged employment action

actually occurred. See 29 C.F.R. pt. 1630, Appendix at § 1630.2(m) (“The determination

of whether an individual with a disability is qualified is to be made at the time of the

employment decision.”); Gaul, 134 F.3d at 580 (“The determination of whether an

individual with a disability is qualified is made at the time of the employment decision.”)

(quoting 29 C.F.R. pt. 1630, Appendix at § 1630.2(m)); accord Barclay v. Amtrak, 435 F.

Supp.2d 438, 445 (E.D. Pa. 2006) (noting that the ADA only prohibits employers from

discriminating against disabled employees who, at the time of termination, could

perform the job

Again, it is undisputed that on the date he was terminated, June 21, 2022,

Plaintiff was not licensed to practice as a registered nurse in the Commonwealth of

Pennsylvania. It does not matter that on July 12, 2022, the DOS renewed Plaintiff’s

license retroactive to June 20, 2022. Since Plaintiff was not licensed at the time his

termination occurred on June 21, 2022, he simply was not a qualified individual with a

disability for purposes of the ADA and simply was not a qualified individual for purposes

of the ADEA, Title VII and the PHRA.

For the foregoing reasons, the Defendants’ motion to dismiss Counts I-IV

of the First Amended Complaint is granted. Count V, asserting claims for retaliation,

shall remain.