The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TIFFANY KADRI NOMA, : Civil No. 1:24-CV-00997
:
Plaintiff, :
:
v. :
:
CAPITAL BLUECROSS, et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Plaintiff, Tiffany Kadri Noma (“Noma”), brings this lawsuit for alleged
disability discrimination in violation of the Americans with Disabilities Act
(“ADA”) and the Pennsylvania Human Relations Act (“PHRA”). Presently before
the court are motions to dismiss filed by certain defendants. For the reasons that
follow, the court will deny the motions.
BACKGROUND
In October 2022, Defendant Peopleshare LLC (“Peopleshare”), a “temporary
and permanent staffing agency,” hired Noma to work as a customer service
representative at Defendant Capital BlueCross, a subsidiary of Blue Cross and
Blue Shield Association. (Doc. 23, ¶¶ 5, 7, 21, 35.) Noma interviewed with both
Peopleshare and Capital BlueCross for the position. (Id. ¶ 22.)
Peopleshare and Capital BlueCross were each involved in various aspects of
Noma’s employment. Capital BlueCross assigned Noma work, determined her job
responsibilities, was responsible for her day-to-day supervision, and reviewed her
performance. (Id. ¶¶ 25, 27–29.) Peopleshare, on the other hand, maintained
Noma’s employee records, including payroll and benefits. (Id. ¶ 24.) Both
companies issued employee handbooks and policies that governed the conditions
of Noma’s employment. (Id. ¶ 23.) They both oversaw “payroll practices . . .
such as scheduling, clocking in and out, and tracking overtime.” (Id. ¶ 31.) They
both assigned managers to supervise Noma during her placement at Capital
BlueCross. (Id. ¶ 34.) Noma’s supervisor from Peopleshare was Defendant Sonia
Diodato (“Diodato”). (Id. ¶ 10.) Her supervisor from Capital BlueCross was
Defendant Jennifer Bellomy (“Bellomy”). (Id. ¶ 9.) Finally, any requests for
medical leave had to be approved by both Peopleshare and Capital BlueCross. (Id.
¶ 33.)
In November 2022, Noma was diagnosed with a schwannoma—a type of
nervous system tumor—in her hand. (Id. ¶ 37.) This tumor allegedly resulted in
“substantial limitations” in Noma’s use of her hand. (Id. ¶¶ 38–39.) Noma
notified both Peopleshare and Capital BlueCross about her diagnosis and her need
for surgery to remove the tumor. (Id. ¶ 41.) In response, Diodato and Bellomy
allegedly told Noma to keep both employers advised as she learned more
information about her disability and the timing of her surgery. (Id. ¶ 42.) In
January and February 2023, Noma allegedly again had conversations with Diodato
and Bellomy about her need for hand surgery and, consequently, medical leave.
(Id. ¶ 43.) At this time, Diodato assured Noma that her request for leave would be
approved and explained that Noma would have to discuss the issue with Capital
BlueCross, who also had to approve the leave. (Id.)
In February 2023, Noma informed Bellomy that she required medical leave
for hand surgery during March 1–3, 2023. (Id. ¶ 44.) During this conversation,
Bellomy allegedly expressed concern about Noma’s ability to return to work after
the surgery. (Id. ¶ 45.) Bellomy’s concern allegedly stemmed from her previous
experience with a former disabled employee who required ongoing
accommodations and whom Capital BlueCross “had to fire.” (Id.) Noma also
allegedly discussed post-surgery accommodations with Diodato, who told Noma to
coordinate with Bellomy and assured Noma that Capital BlueCross would discuss
this issue with Peopleshare. (Id. ¶ 47.)
On March 3, 2023, Noma’s employment at Capital BlueCross was
terminated while she was out on medical leave. (Id. ¶ 49.) Noma allegedly
learned of her firing only when she was sent a shipping box for her to return her
Capital BlueCross equipment. (Id.) Noma alleges she had no advanced warning or
notice of her firing. (Id. ¶ 53.) When Noma initially sought a rationale for her
firing, both of her supervisors did not provide one and, instead, “blamed the other”
for Noma’s firing. (Id. ¶ 52.) Eventually, they allegedly stated that Noma was not
selected for full-time employment with Capital BlueCross for “refus[ing] to
participate in a training exercise.” (Id. ¶ 54.) This rationale was allegedly false, as
Noma had completed the referenced training. (Id.) Noma alleges that, had she not
been fired on March 3, she would have been able to return to work, with or without
accommodations, on March 6. (Id. ¶ 58.)
On August 29, 2023, Noma filed a Charge of Discrimination against Capital
BlueCross and Peopleshare with both the United States Equal Employment
Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations
Commission (“PHRC”). (Id. ¶ 14.) The EEOC issued Notices of Right to Sue
with respect to Capital BlueCross and Peopleshare on March 19, 2024, and April
15, 2024, respectively. (Id. ¶¶ 15–16.) The PHRC did not respond to Noma’s
charge within a year of her filing. (Id. ¶ 17.)
On June 17, 2024, Noma filed her complaint in the above-captioned lawsuit.
(Doc. 1.) On September 9, 2024, Noma filed an amended complaint. (Doc. 23.)
Noma’s complaint lodges three claims: (1) a claim under the ADA against
Peopleshare and Capital BlueCross; (2) a claim under the PHRA against all
Defendants; and (3) a claim under the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) against Peopleshare.1 (Id. ¶¶ 62–92.) In response,
1 Noma’s COBRA claim is premised on Peopleshare’s alleged failure to provide a “COBRA
continuation coverage election notice.” (Doc. 23, ¶ 88.) Accordingly, the court interprets this
Peopleshare and Diodato filed a joint motion to dismiss, and Bellomy filed her
own motion to dismiss. (Docs. 29 & 32.) A brief in support accompanied each
motion. (Docs. 30 & 33.) Movants argue that Noma’s ADA and PHRA claims
should be dismissed for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6).2 Noma filed briefs in opposition to each motion. (Docs. 35 &
36.) Only Peopleshare and Diodato filed a reply brief. (Doc. 37.) The motions are
now ripe for adjudication.
JURISDICTION
This lawsuit arises under the laws of the United States and those of
Pennsylvania. The court has subject matter jurisdiction over Noma’s federal
claims pursuant to 28 U.S.C. § 1331 and has supplemental jurisdiction over
Noma’s state claims pursuant to 28 U.S.C. § 1367(a). Venue is proper here
pursuant to 28 U.S.C. § 1391(b).
STANDARD OF REVIEW
In order “[t]o survive a motion to dismiss, a 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 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
count of Noma’s amended complaint to seek relief under the Consolidated Omnibus Budget
Reconciliation Act of 1985.
2 Movants do not seek dismissal of Noma’s COBRA claim.
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to
survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.
2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint
survives a motion to dismiss, a court identifies “the elements a plaintiff must plead
to state a claim for relief,” disregards the allegations “that are no more than
conclusions and thus not entitled to the assumption of truth,” and determines
whether the remaining factual allegations “plausibly give rise to an entitlement to
relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) abrogated on other
grounds as recognized in Mack v. Yost, 968 F.3d 311, 319 n. 7 (3rd Cir. 2020).
DISCUSSION
A. Joint-Employer Liability
A threshold issue presented in the motions is which entities can be held
liable for what acts. Noma insists that Peopleshare and Capital BlueCross should
be considered “joint employers,” such that they are held jointly liable for the
other’s alleged discrimination. (Doc. 35, p. 10.)3 Peopleshare counters that joint
employers can only be held jointly liable when one employer knew or should have
3 For ease of reference, the court uses the page numbers from the CM/ECF header.
known about the other’s alleged misconduct, a standard that Peopleshare believes
Noma’s amended complaint fails to satisfy. (Doc. 37, pp. 8–10.)
District courts in the Third Circuit “have recognized that joint employer
liability . . . exists under the ADA and the PHRA.” Pickney v. Modis, Inc., Civil
No. 22-1822, 2022 WL 17652698, at *4 (E.D. Pa. Dec. 13, 2022) (collecting
cases). This is to say that “[j]oint employers can be liable for acts of
discrimination even if one co-employer ‘did not directly engage’ in the conduct at
issue.” Moskowitz v. Neshaminy Sch. Dist., Civil No. 20-5016, 2022 WL 4225398,
at *6 (E.D. Pa. Sept. 13, 2022) (quoting Graves v. Lowery, 117 F.3d 723, 729 n.12
(3d Cir. 1997)). In general, entities are joint employers when “two or more
employers exert significant control over the same employees—where from the
evidence it can be shown that they share or co-determine those matters governing
essential terms and conditions of employment.” NLRB v. Browning-Ferris Indus.
of Pa., Inc., 691 F.2d 1117, 1124 (3d Cir. 1982); accord Graves, 117 F.3d at 727;
Cella v. Villanova Univ., Civil No. 01-7181, 2003 WL 329147, at *7 (E.D. Pa.
Feb. 12, 2003), aff’d, 113 F. App’x 454 (3d Cir. 2004).
The precise test for what constitutes a joint employer under the ADA is not
well settled. Carroll v. Sunrise Detox Cherry Hill, LLC, Civil No. 19-17287, 2020
WL 4218409, at *6 (D.N.J. July 22, 2020). Nevertheless, the Third Circuit
affirmed the Cella court’s decision, which utilized a three-factor test. Id. That test
looks to each entity’s: “1) authority to hire and fire employees, promulgate work
rules and assignments, and set conditions of employment, including compensation,
benefits, and hours; 2) day-to-day supervision of employees, including employee
discipline; and 3) control of employee records, including payroll, insurance, taxes
and the like.” Cella, 2003 WL 329147, at *7 (quoting Podsobinski v. Roizman,
Civil No. 97-4976, 1998 WL 67548, at *3 (E.D. Pa. Feb. 13, 1998)).
Determining joint-employer status requires a “fact-intensive analysis.”
Bracero v. Transource, Inc., No. 5:20-CV-02483-JMG, 2021 WL 1561911, at *3
(E.D. Pa. Apr. 21, 2021). For this reason, courts in the Third Circuit “have
allowed pleadings with a thin factual record [concerning the issue of joint-
employer status] to survive a motion to dismiss.” Id. (internal quotation marks
omitted) (quoting Wadley v. Kiddie Acad. Int’l, Inc., Civil No. 17-05745, 2018 WL
4732479, at *3 (E.D. Pa. Oct. 1, 2018)).
With these principles in mind, the court finds that Noma’s amended
complaint sufficiently makes out a plausible claim that Capital BlueCross and
Peopleshare were joint employers and can be liable for the other’s alleged
discrimination. The court considers this issue recognizing that, in general, “[t]he
relationship between a placement agency and the employer at which the worker is
placed is a classic example of joint employment.” Moskowitz, 2022 WL 4225398,
at *6.
Noma’s specific allegations bear this conclusion out. Noma alleges that she
interviewed with both Peopleshare and Capital BlueCross for her customer-service
position. (Doc. 23, ¶ 22.) Thus, both entities presumably had input on her hiring.
Noma further alleges that both Peopleshare and Capital BlueCross “imposed work
rules and set conditions of employment”; “maintained [her] employment records”;
oversaw “payroll practices . . . such as scheduling, clocking in and out, and
tracking overtime”; had to approve any requests for medical leave; and supervised
Noma through Diodato and Bellomy, respectively. (Doc. 23, ¶¶ 23, 30, 31, 33,
34.) These allegations suggest that both entities had control over her employment
conditions and employment records. While Noma’s allegations indicate that
Capital BlueCross was perhaps more involved in Noma’s day-to-day supervision,
performance evaluation, and work allocation, id. ¶¶ 27–29, she nevertheless had to
discuss with Peopleshare any changes to her work duties. (Id. ¶ 26.) Thus, it is
plausible that Peopleshare had influence over her work responsibilities. Finally,
Noma alleges that all Defendants had a role in her firing, which is plausibly
supported by Defendants’ inconsistent and allegedly false reasons for her firing.
(Id. ¶¶ 52, 54, 60–61.)
Peopleshare’s insistence that Noma must allege that it knew or should have
known of Capital BlueCross’s alleged discrimination is incorrect. Peopleshare
offers no controlling authority to suggest that joint liability only attaches when this
mens rea requirement is met. Instead, Peopleshare cites a Seventh Circuit case that
applied a burden-shifting test in the context of the National Labor Relations Act.
See Am.’s Best Quality Coatings Corp. (ABQC) v. NLRB, 44 F.3d 516, 523 (7th
Cir. 1995). Peopleshare also cites a Pennsylvania appellate decision applying the
Pennsylvania Labor Relations Act, which is interpreted in a similar manner to the
National Labor Relations Act. Borough of Pottstown v. Pa. Lab. Relations Bd.,
710 A.2d 641, 646–47 (Pa. Commw. Ct. 1998). These authorities deal, however,
with a specific context different than the one here. No authority this court has
reviewed concerning the ADA and disability discrimination suggests that joint
employers can escape liability by disclaiming that it knew or should have known
about a joint employer’s misconduct. In any event, as discussed below, Noma’s
amended complaint plausibly states a claim that Peopleshare itself engaged in
unlawful discrimination. Thus, even if Noma needs to allege that Peopleshare
knew or should have known about discriminatory practices, such standard is
satisfied here.
Noma’s allegations on this issue may or may not be corroborated as this case
proceeds. At this early stage, however, the court finds Noma’s allegations
sufficient to consider Peopleshare and Capital BlueCross joint employers.
Accordingly, for the purpose of resolving the pending motions, the court will
consider allegations against both Peopleshare and Capital BlueCross in
determining whether Noma has plausibly stated a claim against Peopleshare.
B. ADA & PHRA Claims Against Peopleshare
The court notes at the outset that “claims under the ADA and PHRA are
treated as coextensive.” Scott v. Blossburg Borough, No. 4:21-CV-01985, 2022
WL 16855580, at *5 (M.D. Pa. Nov. 10, 2022) (citing Kelly v. Drexel Univ., 94
F.3d 102, 105 (3d Cir. 1996)). Indeed, PHRA claims are generally adjudged
“under the same standards as . . . ADA claims.” Doe v. Pennsylvania, 582 F.
Supp. 3d 206, 215 (M.D. Pa. 2022). Accordingly, the court analyzes Noma’s ADA
and PHRA claims together.
These claims consist of one count for each statute. The amended complaint,
however, clearly seeks relief on the basis of three theories of liability: (1) disability
discrimination; (2) failure to provide reasonable accommodations; and (3)
retaliation for engaging in protected conduct. (Doc. 23, ¶ 73.) The court analyzes
each theory of liability in turn.
1. Discrimination Theory
The ADA and PHRA both proscribe discrimination against employees on
the basis of disability status, which includes firing an employee because of a
disability. 42 U.S.C. § 12112(a); 43 Pa. Stat. § 955(a). To state a claim for
disability discrimination, a plaintiff must allege: “(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; and (3) [s]he has suffered an otherwise adverse employment decision as
a result of discrimination.” Scott, 2022 WL 16855580, at *3 (quoting Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999)).
Peopleshare only contests whether Noma’s allegations plausibly allege the
third element. (See Doc. 30, pp. 13–14.) Peopleshare contends that Noma has not
alleged any facts to suggest that it discriminated against her on the basis of
disability. (Id. at 14.) The court disagrees. First, Noma alleges that
“Defendants”—i.e., both Peopleshare and Capital BlueCross—made the decision
to fire her. (Doc. 23, ¶ 53.) When asked why Noma was fired, Peopleshare and
Capital BlueCross allegedly refused to give a reason and instead blamed Noma’s
firing on each other. (Id. ¶ 52.) Thus, Noma plausibly alleges that Peopleshare
itself took an adverse employment action against Noma.4
Second, the alleged circumstances of Noma’s firing plausibly support the
claim that Peopleshare and Capital BlueCross fired Noma because of her disability.
Causation in cases like this can be shown by establishing “a temporal proximity
between ADA-protected activity and the adverse action” as well as by
4 Even if Capital BlueCross alone made the decision to fire Noma, Peopleshare could be liable as
a joint employer.
“[a]llegations of disparate treatment between disabled and able-bodied
employees.” Leon v. Bensalem Twp. Sch. Dist., Civil No. 23-01374, 2024 WL
3744352, at *5 (E.D. Pa. Aug. 9, 2024). As to temporal proximity, requesting and
taking a three-day medical leave is protected activity under the ADA. Cf. Hanlon
v. Precision Metal Servs., Inc., Civil No. 19-3859, 2024 WL 388107, at *19 (E.D.
Pa. Jan. 31, 2024) (finding that a three-month medical leave to recover from
surgery was protected activity under the ADA). Here, Noma alleges that
Defendants fired her while she was out on her brief medical leave and only one
month after she discussed post-leave accommodations with Diodato and Bellomy.
(See Doc. 23, ¶¶ 45–47, 49.) This close temporal proximity between Noma’s
protected activity and her firing gives rise to a plausible inference of
discrimination. Moreover, Noma alleges that Capital BlueCross offered full-time
employment to similarly situated able-bodied persons, thus treating her worse than
those colleagues. (Id. ¶¶ 55–56.) At this stage, Peopleshare cannot disclaim
liability for Capital BlueCross’s alleged disparate treatment since it was plausibly a
joint employer.
For these reasons, the court concludes that Noma has alleged enough to
plausibly state a claim that Peopleshare discriminated against her on the basis of
disability status. Thus, Noma’s disability-discrimination claim will survive.
2. Failure-to-Accommodate Theory
A failure-to-accommodate claim requires Noma to plead: “(1) [s]he was
disabled and [her] employer knew it; (2) [s]he requested an accommodation or
assistance; (3) [her] employer did not make a good faith effort to assist; and (4)
[s]he 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 Hops., 438 F.3d 240, 246 (3d Cir. 2006)). Peopleshare advances a singular
argument in favor of dismissing this claim. It argues that Noma’s amended
complaint contains no allegations that she asked Peopleshare for taking time off for
her surgery. (Doc. 30, p. 15.) This argument is unpersuasive.
Noma alleges that she notified both employers of her diagnosis and the need
for medical leave shortly after her diagnosis. (Doc. 23, ¶ 41.) Noma further
alleges that she again discussed her need for medical leave with both of her
supervisors in January and February 2023, shortly before her surgery. (Id. ¶ 43.)
Diodato even allegedly told Noma that Peopleshare would approve her request for
leave once Capital BlueCross approved the request. (Id.) These allegations are
sufficient to establish that Noma asked Peopleshare for medical leave. Even
assuming, counterfactually, that Noma did not allege that she asked Peopleshare
for medical leave, Peopleshare implicitly concedes that Noma asked Capital
BlueCross for medical leave. As noted above, Noma has sufficiently alleged that
Peopleshare and Capital BlueCross are joint employers such that they can be held
liable for the other’s alleged discrimination. See Moskowitz, 2022 WL 4225398, at
*6. Accordingly, Noma’s failure-to-accommodate claim will proceed.
3. Retaliation Theory
To state a retaliation claim, a plaintiff must sufficiently allege: “(1) she
invoked an ADA-protected right; (2) she suffered an adverse employment action;
and (3) the adverse action was causally related to her invocation of rights.” Leon,
2024 WL 3744352, at *6 (citing Drizos v. PNC Inv. LLC, No. 22-1736, 2023 WL
4986496, at *5 (3d Cir. Aug. 3, 2023)). As with the disability-discrimination
claim, Peopleshare contends only that Noma has failed to plead the causation
element of the retaliation claim. (See Doc. 30, pp. 16–18.) Generally, Peopleshare
argues that Noma has not sufficiently alleged that her firing was caused by her
invocation of rights. (See id.)
In analyzing causation in retaliation claims, like disability-discrimination
claims, courts look to temporal proximity between the protected activity and
adverse event. Plaintiffs can establish causation by showing that the “timing [of
the adverse action] is unusually suggestive.” Hanafy v. Hill Int’l, Inc., 669 F.
Supp. 3d 419, 438 (E.D. Pa. 2023) (quoting Abdul-Latif v. County of Lancaster,
990 F. Supp. 2d 517, 530 (E.D. Pa. 2014)); accord Lawman v. Herbert, Rowland &
Grubic, Inc., No. 1:18-CV-01999, 2020 WL 5369951, at *11 (M.D. Pa. Sept. 8,
2020) (quoting McLaughlin v. Fisher, 277 F. App’x 207, 218 (3d Cir. 2008))
(explaining that temporal proximity “ordinarily is insufficient to demonstrate a
causal link unless the timing is ‘unusually suggestive’ of retaliatory motive”). By
way of example, the Third Circuit has noted that “two days between a protected
activity and an adverse action is ’unusually suggestive’ of retaliatory motive.”
McLaughlin, 277 F. App’x at 219 (citing Krouse v. Am. Sterilizer Co., 126 F.3d
494, 503 (3d Cir. 2008)). Three months, on the other hand, is not unusually
suggestive according to the Third Circuit. Id. (citing LeBoon v. Lancaster Jewish
Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007)).
Peopleshare’s argument on this issue considers the period between when
Noma first notified Capital BlueCross of the specific days she needed to take off,
February 2023, and Noma’s firing, March 3, 2023. (Doc. 30, pp. 17–18.)
Peopleshare insists that this one-month period is not unusually suggestive of
retaliation. (Id.) Peopleshare entirely ignores Noma’s allegations that Peopleshare
and Capital BlueCross fired her while she was on medical leave. (See Doc. 23,
¶ 49.) Firing an employee while she is actively on medical leave is certainly
unusually suggestive of retaliation. Cf. Kohler v. TE Wire & Cable LLC, Civil No.
14-3200, 2016 WL 885045, at *12 (D.N.J. Mar. 8, 2016) (holding that “a
reasonable finder of fact may determine that Plaintiff’s termination while on
medical leave is ‘unusually suggestive’ of retaliation” in the context of an FMLA
claim). The unusually suggestive timing of Noma’s firing is sufficient, at this
stage, to satisfy the causation element of a retaliation claim. See LeBoon, 503 F.3d
at 232 (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001))
(explaining that unusually suggestive timing alone can “create an inference of
causality”).5
Peopleshare further argues that Noma’s retaliation claim is simply a
reiteration of her failure-to-accommodate claim and, thus, should be dismissed as
redundant. (Doc. 30, p. 18.) Peopleshare is correct that a retaliation claim under
the ADA—which arises from “action prohibited by the statute”—cannot be
premised on an employer’s failure to provide reasonable accommodations—which
concerns “alleged failure[] to fulfill the affirmative duties prescribed by the ADA.”
Vought v. Twin Tier Hosp., LLC, No. 1:18-CV-1113, 2019 WL 2501470, at *7
(M.D. Pa. June 17, 2019) (quoting Pagonakis v. Express LLC, 315 F. App’x 425,
431 (3d Cir. 2009)). Therefore, “[c]ourts routinely dismiss retaliation claims that
simply ‘repackage’ claims that an employer failed to offer accommodations.”
Barnard v. Lackawanna County, No. 3:17-CV-00066, 2017 WL 4233030, at *7
(M.D. Pa. Sept. 25, 2017).
5 Noma also alleges that the reasons she received for her firing were inconsistent. She alleges
that Defendants initially blamed each other for Noma’s firing, Doc. 23, ¶ 52, but then told her
that she was fired for refusing to participate in a training exercise that she allegedly completed.
(Id. ¶ 54.) An inconsistency like this can also support an inference of retaliatory animus so as to
defeat Peopleshare’s motion to dismiss. LeBoon, 503 F.3d at 232–33; Johnson v. Sage Dining
Servs., Inc., Civil No. 23-3929, 2024 WL 4700619, at *11 (E.D. Pa. Nov. 6, 2024).
This case is unlike the cases cited by Peopleshare. The retaliation claims in
those cases were solely based on the employer’s failure to provide
accommodations. See Gerber v. Dauphin Cty. Tech. Sch., No. 1:23-CV-2039,
2024 WL 1520965, at *7 (M.D. Pa. Apr. 8, 2024) (dismissing retaliation claim that
was solely based on employer’s failure to provide plaintiff the information she
requested on long-term disability insurance); Semcheski v. Cunningham Lindsey
U.S., Inc., No. 3:16cv1592, 2018 WL 3417219, at *6 (M.D. Pa. July 13, 2018)
(dismissing retaliation claim when employer allegedly placed employee on
months-long leave and eventually fired him because it was unable to continue
providing the accommodations it had been for two months); Barnard, 2017 WL
4233030, at *7 (dismissing retaliation claim that was premised solely on
employer’s refusal to allow employee to work on a part-time basis after an injury).
Instead, the court finds that this case is more like those in which plaintiffs
have been able to identify an “adverse employment decision[] beyond . . . [a]
denial of [an] accommodation request.” Vought, 2019 WL 2501470, at *7 (finding
retaliation claim was distinct from failure-to-accommodate claim when plaintiff
alleged that his employer “constructively discharged [him] and then refused to
consider him for rehire” after he requested medical leave for his inpatient
rehabilitation); accord Lawman, 2020 WL 5369951, at *10 (finding retaliation
claim and failure-to-accommodate claim were not redundant when plaintiff alleged
that the act of retaliation was her firing after requesting a leave of absence, rather
than the denial of a request for accommodations).
Noma alleges that Peopleshare and Capital BlueCross fired her “for
engaging in protected activity.” (Doc. 23, ¶ 73.) Reading the complaint in the
light most favorable to Plaintiff, this allegation can plausibly support the
conclusion that her retaliation claim is not based on a failure to provide reasonable
accommodations, but rather on Defendants firing her for requesting the
accommodation, i.e., medical leave. Given this, the court finds the holdings of
Vought and Lawman more applicable here than the cases cited by Peopleshare.
Therefore, the court will not dismiss Noma’s retaliation claim as being redundant
of her failure-to-accommodate claim.
C. Punitive Damages for ADA Claims
Peopleshare argues in the alternative that if Noma’s ADA claims survive,
then the court should dismiss her request for punitive damages under those claims.
(Doc. 30, pp. 19–20.) To begin, “[p]unitive damages are recoverable under the
ADA.” McFadden v. Biomedical Sys. Corp., Civil No. 13-4487, 2014 WL 80717,
at *5 (E.D. Pa. Jan. 9, 2014); see 42 U.S.C. § 1981a(a)(2).6 Punitive damages are
warranted when “the complaining party demonstrates that the respondent engaged
6 Peopleshare’s motion only concerns punitive damages for Noma’s ADA claims. As a general
matter, punitive damages are not available under the PHRA. Scott, 2022 WL 16855580, at *7
(citing Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998)).
in a discriminatory practice or discriminatory practices with malice or with
reckless indifference to the federally protected rights of an aggrieved individual.”
42 U.S.C. § 1981a(b)(1). Clearly, the applicability of punitive damages here
requires a fact-intensive inquiry as to each Defendant’s state of mind. See id.
Given Noma’s allegations, resolution of this issue on a motion to dismiss is
premature. See, e.g., Crandall v. Ballou, No. 3:22-CV-01843, 2023 WL 3136408,
at *3 (M.D. Pa. Apr. 27, 2023) (explaining that “because an individual’s state of
mind usually determines whether an award of punitive damages is warranted, it
would be premature to dismiss a punitive damage claim at the outset of litigation);
Scott, 2022 WL 16855580, at *8 (“Indeed, it would be premature to make the
factual determinations required for an award of punitive damages at the motion to
dismiss stage.”). The court will not dismiss Noma’s claims for punitive damages
on her ADA claims at this juncture.
D. PHRA Aiding-and-Abetting Claims
In addition to bringing PHRA claims against the corporate defendants,
Noma also seeks to hold Bellomy and Diodato individually liable under a theory of
aiding and abetting. (Doc. 23, ¶ 79.) Both Diodato and Bellomy move to dismiss
the aiding-and-abetting claims against them.
“The PHRA . . . permits aiding-and-abetting liability in certain
circumstances for supervisory employees.” Doe, 582 F. Supp. 3d at 215. Under
the PHRA’s aiding-and-abetting provision, 43 Pa. Stat. § 955(e), “[a] PHRA
plaintiff may advance . . . liability claims against [persons] who bear responsibility
for implementing an allegedly unlawful discriminatory practice.” Hollinghead v.
City of York, 912 F. Supp. 2d 209, 223 (M.D. Pa. 2012) (quoting D’Altilio v. Dover
Township, No. 1:06-CV-1931, 2009 WL 2948524, at *12 (M.D. Pa. Sept. 14,
2009)), aff’d, 592 F. App’x 110 (3d Cir. 2015). An aiding-and-abetting claim will
only succeed when the “plaintiff show[s] that a defendant participated in or
compelled discriminatory conduct.” Schepis v. Raylon Corp., No. 03-CV-05970,
2006 WL 2803050, at *3 (E.D. Pa. Sept. 26, 2006).
Diodato contends that Noma’s allegations of Diodato’s involvement in her
firing are conclusory. (Doc. 30, p. 21) Similarly, Bellomy argues that Noma has
alleged no facts to support her claim against Bellomy. (Doc. 33, pp. 6–7.) The
court finds that Noma has alleged enough for her claims against Diodato and
Bellomy to survive.
Noma allegedly told both Diodato and Bellomy about her diagnosis and
need for medical leave. (Doc. 23, ¶ 41.) She alleges Bellomy shared concerns
about Noma’s ability to return to work after her medical leave and intimated that
Capital BlueCross “had to fire” a former employee who had required ongoing
accommodations. (Id. ¶ 45.) When Noma questioned Diodato and Bellomy as to
why she got fired, each supervisor allegedly pointed the finger at the other. (Id.
¶ 52.) Then later, they allegedly told Noma that she was fired for refusing to
participate in a training exercise that she allegedly had completed. (Id. ¶ 54.)
Based on these facts, Noma reasonably alleges that Diodato and Bellomy were
“decision-maker[s] with regard to . . . the decision to terminate her employment.”
(Id. ¶¶ 60–61.)
According to Bellomy, the fact that she discussed medical leave and
accommodations with Noma raises the inference that she had nothing to do with
Noma’s firing. Maybe so, but Bellomy’s alleged doubts about the practicability of
Noma working at Capital BlueCross with ongoing accommodations just as easily
gives rise to the inference that Bellomy was instrumental in Noma’s firing.
Drawing all reasonable inferences in Noma’s favor, as the court must do at this
stage, Noma has sufficiently alleged that Diodato and Bellomy were personally
involved in discriminatory conduct. Therefore, Noma’s aiding-and-abetting claims
will proceed.
CONCLUSION
Noma has sufficiently alleged the claims in her complaint. Therefore, for
the reasons explained above, the court will deny both motions to dismiss.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: June 16, 2025