KHARTCHENKO v. THE AMERICAN ONCOLOGIC HOSPITAL, INC.

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

INNA KHARTCHENKO,

Plaintiff,

Civil No. 23-23043 (ESK/EAP)

v.

THE AMERICAN ONCOLOGIC

HOSPITAL, INC., et al.,

Defendants.

MEMORANDUM OPINION

This matter comes before the Court on Plaintiff Inna Khartchenko’s Motion for Leave to File

a Second Amended Complaint, ECF No. 43 (“Pl.’s Mot.”). Defendants, the American Oncologic

Hospital, Inc. (“AOH”), the Institute for Cancer Research (named as Fox Chase Cancer Center)

(“FCCC”), and Temple University Health System, Inc. (“TUHS”) (collectively, the “Corporate

Defendants”), together with individual Defendants Sangeeta Bardhan Cook, John Lasky, Amber

Medlin, and Jerome Maddox (all Defendants collectively, “Defendants”) have opposed the Motion,

ECF No. 47 (“Defs.’ Opp.”). Plaintiff filed a reply brief in support of her Motion, ECF No. 48

(“Pl.’s Reply”). The Court has reviewed the parties’ submissions and decides this matter without

oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1. For the

following reasons, the motion is GRANTED IN PART and DENIED IN PART.

FACTUAL BACKGROUND1

A. The Parties

Established in 1904, Defendant AOH was one of the nation’s first cancer hospitals. ECF

No. 1-3 (First Am. Compl. (“FAC”)) ¶¶ 14. In 1974, AOH joined with the Institute for Cancer

Research and formed FCCC. Id. ¶ 15. In 2012, FCCC became part of TUHS. Id. ¶ 16. Since then,

the Corporate Defendants have operated as joint entities to service patients throughout the Greater

Philadelphia region and South Jersey. Id. ¶¶ 17-18.

Plaintiff Inna Khartchenko is an immigrant of Russian and Ukrainian origin. Id. ¶ 22. She

began her employment with the Corporate Defendants in 2007 as the Associate Director of Business

Development, and in 2015, she was promoted to the Director of Technology Transfer. Id. ¶¶ 19-20.

In 2018, the Corporate Defendants expanded Plaintiff’s responsibilities to include the New Ventures

programs. Id. ¶ 21. According to the FAC, Plaintiff’s employment was without issue until she (1)

complained of discriminatory comments made by her direct supervisor, Defendant Sangeeta

Bardhan Cook, the Chief Innovation Officer for FCCC and Senior Vice President of

Commercialization Strategy and Business Development for TUHS; (2) reported Cook for retaliating

against her by attempting to deny her a necessary medical accommodation; and (3) objected to

Defendants’ business dealings with a Russian company. Id. ¶¶ 7, 30.

B. Defendant Cook’s Alleged Pattern of Discriminatory Conduct and Retaliation

Defendant Cook began her employment with the Corporate Defendants in August 2022. Id.

¶ 36. On October 27, 2022, Cook sent a Microsoft Teams message to Plaintiff about Robert Uzzo,

1 The following facts are taken from the First Amended Complaint. Because Federal Rule

of Civil Procedure 12(b)(6) governs the assessment of a proposed amended complaint’s futility, all

allegations in the First Amended Complaint and Proposed Second Amended Complaint must be

accepted as true. See Cox v. Money Source, Inc., No. 23-20880, 2025 WL 1621984, at *2 (D.N.J.

June 9, 2025).

Corporate Defendants’ President and Chief Executive Officer, and Jonathan Chernoff, Cancer

Center Director, remarking that Uzzo and Chernoff were “two white guys” who only cared about

samples from underrepresented patient populations because the National Cancer Institute “forced

them” to care. Id. ¶¶ 39-40.

According to the First Amended Complaint, over the next several months, Cook made

additional comments that Plaintiff found offensive, many of which were of an antisemitic nature.

Id. ¶¶ 44-47. For example, during a December 2022 one-on-one meeting, Cook mentioned

Corporate Defendants’ Professor Edna Cukierman, and allegedly asked Plaintiff, “Do you know

which PI is the biggest manipulator? It is Eti [Cukierman]. She can play people in such a way that

they would not even notice. When I was listening to her at some meetings, I thought that my ex

Jewish boyfriends would behave in exactly the same way.” Id. ¶ 45. Plaintiff objected to Cook’s

comments, explaining that many of her friends are Jewish and that she grew up with Jewish students

and teachers. Id. ¶ 49. Plaintiff further alleges that Cook’s alleged antisemitism “especially

offended” her because her grandmother’s parents and young siblings lost their lives in the Holocaust.

Id. ¶ 50. Beyond the antisemitic comments, Plaintiff claims that Cook also regularly made harassing

comments about many of Plaintiff’s colleagues, some of which Plaintiff believed showed that Cook

had a pattern of discriminating against persons with disabilities. Id. ¶¶ 51-56.

In November 2022, Plaintiff went to the emergency room for abdominal pain. Id. ¶ 58.

Plaintiff subsequently reported to Cook that she was scheduled for surgery on January 9, 2023. Id.

¶ 59. Although Cook suggested that Plaintiff could take Family and Medical Leave Act (“FMLA”)

leave, Plaintiff opted to continue her previous remote work arrangement2 and work throughout her

recovery, with sick time taken only as needed. Id. ¶¶ 60-70.

2 According to the FAC, since 2013, Plaintiff had been working a remote hybrid schedule,

which was converted to a fully remote schedule at the start of the COVID-19 pandemic. Id. ¶ 61.

Between January 12, 2023, and January 27, 2023, Plaintiff worked remotely while using

approximately two sick days per week. Id. ¶ 71. During this time, Plaintiff claims to have

recognized a change in Cook’s behavior toward her. Id. ¶ 72. According to Plaintiff, Cook began

to heavily scrutinize Plaintiff’s work. Id. ¶¶ 73-74. On January 23, 2023, Plaintiff reported Cook’s

alleged pattern of discriminatory behavior—focusing on Cook’s alleged antisemitic comments and

increased scrutiny of Plaintiff’s work after her surgery—to Cancer Center Director Jonathan

Chernoff. Id. ¶¶ 75-77. Just days later, on January 28, 2023, Cook informed Plaintiff that she had

to retroactively use FMLA leave for her sick days after her surgery and that she could not work until

she presented a physician’s clearance note. Id. ¶ 78.

On January 30, 2023, Cook allegedly began to target Plaintiff’s remote work arrangement

and presented Plaintiff with an accommodation form for her physician to sign in order to remain

working from home. Id. ¶¶ 80-81. On February 2, 2023, prior to a meeting with Defendant Amber

Medlin, Senior Human Resources Business Partner, about her accommodation request, Plaintiff sent

a lengthy complaint via email about Cook and her alleged discriminatory remarks and retaliatory

behavior. Id. ¶¶ 9, 85. That email detailed Plaintiff’s various complaints of Cook’s retaliation,

including alleged discriminatory remarks, criticism of senior administration and investigators, and

efforts to remove Plaintiff’s ability to work from home. Id. ¶ 85. Based on that email, Plaintiff

alleges that the “Corporate Defendants purported to investigate [her] complaints and interviewed

[her] on February 15, 2023, via Zoom from her home office in New Jersey.” Id. ¶ 86. Although the

Corporate Defendants approved Plaintiff’s accommodation request through May 13, 2023, Plaintiff

believed that Cook was “beginning the process to revoke Plaintiff’s remote work arrangement.” Id.

¶ 87. During the investigation period, Plaintiff alleges that she suffered stress that contributed to

complications from her surgery. Id. ¶¶ 88-89. In the wake of the investigation, Cook allegedly

criticized Plaintiff publicly, micromanaged her, made her look incompetent, and excluded her from

important meetings. Id. ¶ 90.

On April 14, 2023, despite knowing about Plaintiff’s remote work accommodation due to

her disability, Cook allegedly informed Plaintiff that she had to be on site three days per week

beginning on May 1, 2023, because of her “director-level” position. Id. ¶ 92. Cook also instructed

Plaintiff to write a return-to-office plan for her team, even though the Corporate Defendants

eliminated her team’s office space in March 2022. Id. ¶ 93. Plaintiff objected to Cook’s plans to

revoke her remote work arrangement for multiple reasons, but Cook allegedly refused to consider

Plaintiff’s objections. Id. ¶¶ 94-95.

C. Plaintiff’s Whistleblower Complaints Regarding the Corporate Defendants’

Business Affiliations

Meanwhile, on March 28, 2023, Plaintiff participated in a Zoom meeting with Cook and

Tatiana Venkova, the Corporate Defendants’ Licensing Associate. Id. ¶ 99. Cook informed Plaintiff

that, because Plaintiff spoke Russian, she needed her help negotiating with a Russian company

(“Russian Company”) that held the rights to a promising anti-cancer drug. Id. ¶¶ 100-01. Plaintiff

claims that she was immediately apprehensive about working on this project due to her Ukrainian

heritage and the ongoing conflict between Russia and the Ukraine, and she worried that the

Corporate Defendants’ affiliations with the Russian Company could pose serious ethical and legal

problems for the Corporate Defendants.3 Id. ¶¶ 104-06.

According to the First Amended Complaint, Plaintiff conducted approximately thirty

minutes of research of publicly-available information and discovered that the Russian Company was

owned by the Russian Venture Company—part of the Russian Direct Investment Fund—that had

3 According to Plaintiff, “the revenues generated by the Russian Direct Investment Fund,

and thus the Russian Company, would directly support Russia’s invasion of Ukraine.” Id. ¶ 115.

direct ties to the Russian government and that the United States had sanctioned for violations of

international law. Id. ¶¶ 107-09. Based on this research, Plaintiff believed that the Corporate

Defendants’ plans to acquire the intellectual property covering the drug carried a substantial risk of

adverse consequences. Id. ¶ 110-11.

Plaintiff raised her concerns with Cook, stating that proceeding with the deal would directly

violate President Biden’s Executive Orders imposing Russia-related sanctions. Id. ¶¶ 112-13.

Plaintiff also objected to the business dealing as highly unethical. Id. ¶ 114.

On April 11, 2023, Defendant Jerome Maddox, Corporate Defendants’ General Counsel,

emailed Plaintiff and Cook regarding the deal. Id. ¶ 116. Plaintiff immediately responded that she

had concerns that she would like to share with Maddox. Id. ¶ 118. During an April 14, 2023 Teams

call with Cook and Maddox, Plaintiff reiterated her belief that it was unethical for the Corporate

Defendants to negotiate a deal with a company likely financed by a sanctioned Russian entity. Id.

¶ 121. The next day, Plaintiff followed up by writing to Maddox, suggesting that he have law

enforcement agencies check into the Russian Company. Id. ¶ 122. In response, Maddox called

Plaintiff on April 18, 2023, and told her that the Corporate Defendants would “be okay with the PR”

if the deal went forward. Id. ¶ 123.

Meanwhile, on April 17, 2023, Plaintiff complained to Cook, stressing that Cook was

planning to give the Russian Company project to Plaintiff “without disclosing all the information

and informing [her] of the concerns associated with it.” Id. ¶ 126. Plaintiff emphasized that had

she not done due diligence and shared her concerns, Cook “could have gotten [Plaintiff] involved

in this project without [her] knowing all the problematic background information surrounding it,”

which “could have created serious problems for [her] in the future, personally and professionally.”

Id.

D. Alleged Retaliation

Plaintiff claims that one day after Plaintiff’s email to Cook about the Russian Company deal,

and only a few days after Plaintiff complained about Cook’s revocation of her remote work

accommodation, the Corporate Defendants’ investigation into Plaintiff’s complaints from February

ended. Id. ¶ 127. Plaintiff inquired into the results of the investigation; on April 18, 2023, Defendant

John Lasky, Corporate Defendants’ Executive Vice President and Chief Human Resources Officer,

informed Plaintiff via email that her allegations were unfounded and “that the February investigation

did not uncover anything unlawful in Cook’s conduct.” Id. ¶ 128. In response to Plaintiff’s follow-

up questions, Lasky reiterated that no unlawful conduct occurred. Id. ¶ 130.

According to the First Amended Complaint, Cook and Medlin then scheduled a Teams

meeting for the following day with Plaintiff, during which they issued Plaintiff a final written

warning and placed her on a performance improvement plan (“PIP”). Id. ¶¶ 131-32. The final

written warning described Plaintiff’s reports as “assuming malicious intent in others.” Id. ¶ 134.

Plaintiff alleges that when she asked Cook how she could receive a final warning if she never

received any prior warnings during her fifteen years of service to the Corporate Defendants, Cook

ignored her. Id. ¶ 135. Plaintiff asserts that during her work tenure with the Corporate Defendants,

she consistently received stellar performance reviews. Id. ¶¶ 138–45.

On April 20, 2023, Plaintiff’s counsel sent the Corporate Defendants notice of intent to file

this lawsuit, and her counsel filed the complaint the following day. Id. ¶¶ 148-49. Over the next

two months, Plaintiff was required to meet with Cook on a weekly basis as part of her PIP, and

Plaintiff complained to Defendants Cook, Maddox, and Medlin that she believed these measures

were retaliatory. Id. ¶¶ 150-51. Although Plaintiff worked long hours over the next two months to

avoid termination, Cook allegedly took every opportunity to make Plaintiff’s job more difficult. Id.

¶¶ 152-54.

On June 21, 2023, Plaintiff had her final weekly check-in meeting with Cook. Id. ¶ 156.

According to Plaintiff, when she logged on from home, she found Cook and Medlin waiting for her.

Id. ¶ 157. At that time, Cook terminated Plaintiff’s fifteen-year employment with the Corporate

Defendants based on alleged performance issues. Id. ¶¶ 158-59.

PROCEDURAL HISTORY

Plaintiff initiated suit in the New Jersey Superior Court in April 2023. ECF No. 1-1

(Compl.). Her First Amended Complaint, filed November 7, 2023, set forth five causes of action:

(1) disparate treatment and discrimination due to disability under the New Jersey Law Against

Discrimination (“NJLAD”), (Count One), ECF No. 1-2, FAC ¶¶ 167-83; (2) failure to accommodate

and failure to engage in the interactive process under the NJLAD (Count Two), id. ¶¶ 184-86; (3)

discrimination, hostile work environment, and disparate treatment due to religion, national origin,

and/or ethnicity under the NJLAD (Count Three), id. ¶¶ 187-98; (4) retaliation/improper reprisal

under the NJLAD (Count Four), id. ¶¶ 199-202; and (5) retaliation in violation of New Jersey

Conscientious Employee Protection Act (“CEPA”) (Count Five), id. ¶¶ 203-11. Defendants

subsequently removed this matter to this Court and moved to dismiss. ECF Nos. 1, 5.

On November 20, 2024, the Court granted Defendants’ motion finding that Plaintiff’s claims

under NJLAD and CEPA were “only applicable to situations in which the state of employment is

New Jersey or where the plaintiff has significant employment responsibilities in New Jersey.” ECF

No. 30 (Op. & Order) at 3, ¶ 8 (cleaned up). The Opinion noted that “[b]eyond defendants having

authorized plaintiff to work from her home in New Jersey for her own convenience, plaintiff fails

to establish that defendants conducted any business in New Jersey or targeted New Jersey in any

purposeful way.” Id. at 4, ¶ 9. Because Plaintiff had failed to allege that she had any job

responsibilities outside Defendants’ Pennsylvania offices, the Court determined that Plaintiff had

presented no basis to assert New Jersey law. Id. Accordingly, the Court dismissed the First

Amended Complaint without prejudice and granted Plaintiff leave to amend to “cur[e] the

deficiencies addressed” in the Court’s opinion and order. Id. at 5, ¶ 2.

On December 17, 2024, Plaintiff filed a proposed Second Amended Complaint, ECF. No. 31

(Second Am. Compl.), that went beyond the Court’s order to cure the FAC’s deficiencies. Plaintiff

asserted additional federal and Pennsylvania state law claims and re-asserted the previously-

dismissed New Jersey state law claims. Defendants sought leave to file a motion to dismiss. ECF

No. 35 (Jan. 30, 2025 Ltr.). The Court held a pre-motion conference, after which the Court directed

Plaintiff to file a motion for leave to amend. ECF No. 41 (Order). On March 28, 2025, Plaintiff

filed the current Motion for Leave to File a Second Amended Complaint. ECF No. 43 (“Pl.’s Mot.”).

Defendants have opposed the Motion, ECF No. 47 (“Defs.’ Opp.”), and Plaintiff have filed a reply

brief, ECF No. 48 (“Pl.’s Reply”). This Motion is now ripe for disposition.

STANDARD OF REVIEW

Rule 15(a) governs amendments to pleadings before trial. A party may amend its pleading

once as a matter of course within either twenty-one days after serving it; or if the pleading is one to

which a responsive pleading is required, the earlier of twenty-one days after service of a responsive

pleading or twenty-one days after a motion under Rule 12(b), (e), or (f). Fed. R. Civ. P. 15(a)(1). If

those deadlines have expired, a party may amend its pleading only with the opposing party’s written

consent or the court’s leave. Fed. R. Civ. 15(a)(2). “The court should freely give leave when justice

so requires.” Id.

The Third Circuit has adopted a liberal approach to the amendment of pleadings. Spartan

Concrete Prods., LLC v. Argos USVI, Corp., 929 F.3d 107, 115 (3d Cir. 2019); see also Donovan v.

W. R. Berkley Corp., 566 F. Supp. 3d 224, 229 (D.N.J. 2021) (“Generally, there is a presumption in

allowing the moving party to amend its pleadings.”). However, the Court may deny a motion for

leave to amend in one of four instances: (1) the amendment would be futile; (2) the moving party

has demonstrated undue delay, bad faith, or dilatory motives; (3) the amendment would prejudice

the non-moving party; or (4) the moving party was put on notice of deficiencies in its pleading but

chose not to resolve them. U.S. ex rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837, 849

(3d Cir. 2014) (quotations omitted). Ultimately, the decision of whether to grant leave to amend lies

within the sound discretion of the court. Arab Afr. Int’l Bank v. Epstein, 10 F.3d 168, 174 (3d Cir.

1993).

DISCUSSION

Plaintiff makes three sets of changes in the proposed Second Amended Complaint

(“Proposed SAC”). First, Plaintiff adds allegations in an effort to establish that New Jersey law

applies here based on her employment responsibilities and work from her home office in New Jersey.

See Pl.’s Mot. 17. Plaintiff alleges that the Corporate Defendants have longstanding contacts with

New Jersey because they partner with New Jersey-based hospitals to provide services to New Jersey

patients. See generally Proposed SAC ¶¶ 27-31. Moreover, Plaintiff claims that throughout

Plaintiff’s employment, “she conducted business in New Jersey on behalf of [the] Corporate

Defendants working in New Jersey on numerous projects with New Jersey-based entities[.]” Id. ¶

41; see also id. ¶¶ 42-45.

Second, Plaintiff seeks to add claims under the Americans with Disabilities Act (“ADA”),

42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e

et seq., the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. §§ 951-63, and the

Pennsylvania Whistleblower Law (“PWL”), 43 Pa. Stat. §§ 1421-28. Proposed SAC at 3 & ¶¶ 235-

48. Plaintiff alleges that on March 27, 2024, she filed three charges of discrimination against the

Corporate Defendants with the Equal Employment Opportunity Commission (“EEOC”) and cross-

filed with the Pennsylvania Human Relations Commission. Id. ¶ 19. On November 21, 2024, the

EEOC issued Plaintiff a Notice of Right to Sue for her charges of discrimination. Id. ¶ 20.

Finally, Plaintiff asserts that she “has recently learned of additional allegations supporting

her claims of discrimination and retaliation.” Pl.’s Mot. 20. Specifically, on February 13, 2025,

Plaintiff’s counsel allegedly “received a detailed ‘anonymous’ tip—which upon information and

belief came from an employee within or connected to the Defendants—that specifically addresses

Defendant Cook’s discriminatory and retaliatory conduct.” Id. As such, Plaintiff seeks to add

factual allegations against Defendant Cook. Proposed SAC ¶¶ 178-83.

Defendants oppose these amendments on several grounds. Primarily, Defendants argue that

Plaintiff’s new factual allegations do not cure the deficiencies in her dismissed CEPA or NJLAD

claims. Defs.’ Opp. at 4, 28-29. Moreover, they assert that Plaintiff should be barred from amending

and adding claims under Title VII, the ADA, and the PHRA because: (1) she failed to exhaust

administrative remedies as to these claims, id. at 4, 6-11; and (2) her national origin, ethnicity, and

religious discrimination claims are futile, id. at 4, 11-21. Finally, Defendants argue that Plaintiff’s

new PWL claim is untimely and futile. Id. at 4-5, 21-28.

The Court addresses each of Defendants’ arguments in turn.

A. New Factual Allegations in Support of Dismissed CEPA and NJLAD Claims

Plaintiff’s First Amended Complaint originally pled claims under the NJLAD and CEPA.

The Court dismissed those claims because New Jersey was not Plaintiff’s state of employment with

Defendants and thus, those statutes were inapplicable. ECF No. 30 (Op. & Order) at 3-4, ¶¶ 8-9.

Specifically, the Court noted that, regardless of where a plaintiff resides, CEPA and NJLAD apply

only when New Jersey is an employee’s state of employment or when the plaintiff has significant

employment responsibilities in New Jersey. Id. at 3, ¶ 8. The Court found that Plaintiff was

primarily a Pennsylvania employee. Id. at 4, ¶ 9. In so doing, however, the Court granted Plaintiff

leave to file a second amended complaint curing these deficiencies. Id. at 5, ¶ 2.

Plaintiff now seeks to add various allegations to establish that New Jersey constitutes her

place of employment, thereby allowing her to proceed with her CEPA and NJLAD claims. Pl.’s

Mot. 17-19. In analyzing the propriety of these new allegations, the Court notes that “New Jersey

law does not regulate conduct outside the state.” D’Agostino v. Johnson & Johnson, Inc., 133 N.J.

516, 539 (1993). “New Jersey courts have consistently applied the law of the state of employment

to claims of workplace discrimination and, therefore, only apply the NJLAD if the claimant was

employed in New Jersey.” McGovern v. Sw. Airlines, 12-3579, 2013 WL 135128, at *1 (D.N.J. Jan.

8, 2013) (citing cases); see also Norris v. Harte-Hanks, Inc., 122 F. App’x 566, 569 (3d Cir. 2004)

(applying state of employment test to CEPA claim). “The rationale . . . is to protect employers from

the potential unfairness of having to comply with several different legal regimes merely because

they may have employees that reside in different states.” McGovern, 2013 WL 135128, at *2

(citation omitted). Thus, looking to the state of employment “‘ensures that the law in the jurisdiction

with the strongest interest in the outcome of the litigation controls.’” McGovern, 2013 WL 135128,

at *2 (quoting Weinberg v. Interep Corp., No. 05-5458, 2006 WL 1096908, at *7 (D.N.J. Apr. 26,

2006)).

The key inquiry focuses on the situs of the individual’s employment. Lee v. United Airlines,

Inc., No. 18-14772, 2021 WL 2679891, at *4 (D.N.J. June 29, 2021). “New Jersey is an individual’s

place of employment if New Jersey has ‘a significant contact or significant aggregation of contacts,

creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.’”

Shah v. Am. Airlines, No. 17-6298, 2022 WL 3098087, at *6 (D.N.J. Aug. 4, 2022) (quoting Satz v.

Taipina, No. 01-5921, 2003 WL 22207205, at *15 (D.N.J. Apr. 15, 2023) (further citations omitted)).

“In that respect, ‘[m]ere, occasional contact with New Jersey as part of a plaintiff’s employment is

insufficient to turn those visits into plaintiff being based in New Jersey for employment purposes.’”

Id. (quoting Lee, 2021 WL 2679891, at *4). “In other words, ‘it is where Plaintiff worked, rather

than where Defendant was located or where Plaintiff occasionally traveled to for business, that is

significant.’” Id. (quoting Mirabella v. Oasis Foods Co., No. 12-6218, 2014 WL 7272955, at *4

(D.N.J. Dec. 16, 2014)). An exception to this rule includes where an employee of an out-of-state

employer has “non-trivial employment responsibilities in New Jersey.” McGovern, 2013 WL

135128, at *2. “Essentially, [however], there are no cases applying the NJLAD to out-of-state

employers unless the Plaintiff has significant employment responsibilities in New Jersey.” Id.

Here, the Court previously found that Plaintiff had not established that her place of

employment was New Jersey, reasoning as follows:

Beyond defendants having authorized plaintiff to work from her home

in New Jersey for her own convenience, plaintiff fails to establish that

defendants conducted any business in New Jersey or targeted New

Jersey in any purposeful way. . . . Plaintiff was exclusively hired to

work in Pennsylvania, and her promotion was offered and accepted

through the same office. . . . While plaintiff may have worked

remotely for a significant portion of her approximately 15-year

employment with the Corporate Defendants, defendants attempted in

April 2023 to have plaintiff return to working on-site in Pennsylvania.

. . . Plaintiff fails to indicate that she had any responsibilities outside

of the Corporate Defendants’ Pennsylvania offices. . . . Therefore,

plaintiff presents no basis to assert New Jersey law and a choice of

law assessment is unnecessary.

ECF No. 30 (Op. & Order) ¶ 9.

Plaintiff now seeks to add the following allegations designed to establish the applicability of

New Jersey law:

27. Approximately 20% of Corporate Defendants’ patients are

New Jersey residents, and, as of March 2024, Defendant FCCC has

opened a location in Voorhees, New Jersey, where they are equipped

to treat a wide range of patients [footnote omitted].

28. Corporate Defendants permanently expanded their operations

into New Jersey to “reinforce Fox Chase’s commitment to providing

top-tier cancer care to the South Jersey Community.” [footnote

omitted].

29. Indeed, Corporate Defendants have longstanding contacts

with New Jersey as they partner with New Jersey based hospitals to

provide services to their New Jersey patients. [footnote omitted].

30. Upon information and belief, Corporate Defendants receive

Medicaid funding through federal and state governments. Indeed,

approximately 45% of Corporate Defendants’ patients are covered by

Medicaid, and 87% of Corporate Defendants’ discharges are

Medicaid and Medicare patients. [footnote omitted].

31. Furthermore, upon information and belief, Corporate

Defendants received substantial additional funding from the

Commonwealth of Pennsylvania and from the federal government

[footnote omitted].

. . . .

40. Plaintiff was expected to conduct her regular duties and

maintain her productivity from her home in New Jersey, while also

paying New Jersey income taxes.

41. In fact, throughout Plaintiff’s employment, she conducted

business in New Jersey on behalf of Corporate Defendants working

in New Jersey on numerous projects with New Jersey-based entities,

including but not limited to Princeton University, Rutgers University,

I-Corps Northeast, BioNJ, New Jersey Technology Council, Bristol

Myers Squibb, Daiichi Sankyo, and other biotech companies and life

science organizations. [footnote omitted].

42. In addition, Plaintiff worked extensively with Genesis Drug

Discovery & Development, a New Jersey-based biotechnology

company.

43. Genesis Drug Discovery & Development purchased a

controlling interest in NexusPharma, a startup company in which Fox

Chase Cancer Center held equity. [footnote omitted].

44. During and following the acquisition of NexusPharma by

Genesis Discovery & Development, Plaintiff spent as much as 50%

of her time performing due diligence and negotiating various

agreements on behalf of Corporate Defendants related to that New

Jersey company.

45. Throughout her employment, Plaintiff was encouraged to

attend events and meetings in New Jersey with companies that

Corporate Defendants contracted and were affiliated with in order to

effectuate her job responsibilities.

Proposed SAC ¶¶ 28-31, 40-45.

Such allegations—while perhaps relevant to this Court’s undisputed personal jurisdiction

over the Corporate Defendants—do not cure the deficiencies identified by the Court. Proposed SAC

¶¶ 3-4. Despite Defendants’ efforts to expand business connections into New Jersey, at all relevant

times, they remained based in Pennsylvania. The Pennsylvania office hired Plaintiff, and the

Proposed SAC contains no allegations that her pay stubs or tax returns issued from anywhere but

that office. Although Plaintiff worked at home for significant portions of her career, nothing in the

Proposed SAC suggests that this arrangement was for the Corporate Defendants’ benefit. Id. ¶¶ 39-

45, 84-85. Indeed, as noted previously, Defendants actually sought to have Plaintiff return full-time

to the office in Pennsylvania. Id. ¶¶ 98-101, 111-13. The relevant communications occurred with

the Corporate Defendants’ employees who were based in Pennsylvania. See generally Proposed

SAC. And the mere fact that Plaintiff often worked with New Jersey companies does not equate to

a legal showing that she was based in New Jersey for employment purposes.4

4 Plaintiff argues that this determination is premature at this early stage, citing cases for the

proposition that such a finding is better made after a period of discovery. Her cited cases, however,

are inapposite because they involve a choice of law analysis under New Jersey’s choice of law rules

to determine which state’s law governed the plaintiff’s claims. See Law v. Virtus Partners Holdings,

LLC, No. 22-2329, 2023 WL 2245039, at *4 (D.N.J. Feb. 27, 2023) (noting that “additional

discovery is needed to appropriately determine which state’s law should apply to [p]laintiff’s

claims”); Krys v. Aaron, 106. F. Supp. 3d 472, 481 (D.N.J. 2015) (finding that choice of law analysis

was better done at a later stage of the case); Weske v. Samsung Elecs. Am., Inc., No. 10-4811, 2012

WL 833003, at *2 (D.N.J. Mar. 12, 2012) (finding that a proper choice of law analysis was premature

at the motion to dismiss stage); see also Pallies v. Lenape Valley Found., No. 25-735, 2025 WL

968316, at *1 (E.D. Pa. Mar. 31, 2025) (finding that because the complaint was “rather vague as to

where all the relevant underlying events took place,” the court could not make a determination as to

whether the New Jersey law applied to the workplace discrimination case before it). Here, by

contrast, the question is whether Plaintiff may bring certain claims under New Jersey law based on

her place of employment. Given the detailed allegations in the Proposed SAC, the Court has

sufficient information before it to make this determination.

In light of the foregoing, any new allegations regarding the Corporate Defendants’ New

Jersey connections fail to cure the deficiencies undergirding the Court’s previous dismissal of

Plaintiff’s NJLAD and CEPA claims. Because such claims would be futile, the Court denies Plaintiff

leave to amend.

B. Failure to Exhaust Administrative Remedies for Title VII, ADA, and PHRA

Claims

Defendants next argue that leave to amend the complaint to add claims under Title VII, the

ADA, and the PHRA should be denied as futile because Plaintiff failed to exhaust administrative

remedies. Defs.’ Opp. at 6-11.

A Title VII plaintiff must exhaust all administrative remedies before bringing a claim for

judicial relief. 42 U.S.C. § 2000e-5(e)(1); Antol v. Perry, 82 F.3d 1291, 1295 (3d. Cir. 1996). This

standard requires the Plaintiff to “‘fil[e] a timely discrimination charge with the EEOC.’”

Cummings v. Princeton Univ., No. 15-8587, 2016 WL 6434561, at *3 (D.N.J. Oct. 31, 2016)

(quoting Barzanty v. Verizon Pa., Inc., 361 F. App’x 411, 413-14 (3d Cir. 2010)).5 “Only after the

EEOC action is filed, an investigation is completed, and a right to sue letter is issued can a plaintiff

be considered to have exhausted her administrative remedies.” Tzeng v. Care One at Madison Ave.,

LLC, No. 23-3011, 2024 WL 3812070, at *2 (D.N.J. Aug. 14, 2024) (citing Burgh v. Borough

Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001)). The purpose of this requirement

is “(1) to ensure ‘that an employer is made aware of the complaint lodged against him and is given

5 Title I of the ADA incorporates the administrative procedures of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-5. See 42 U.S.C. § 12117; Churchill v. Star Enters., 183

F.3d 184, 190 (3d Cir. 1999). Thus, a plaintiff alleging a Title I violation must first exhaust

administrative remedies before filing an action in court. See 42 U.S.C. §§ 2000e-5(e), (f)(1); see

also Khalil v. Rohm & Hasas Co., No. 05-3396, 2005 WL 3111791, at *2 (E.D. Pa. Nov. 18, 2005).

Similarly, as a precondition to suit under the PHRA, a plaintiff must exhaust their claims by

presenting them to the Pennsylvania Human Relations Commission (“PHRC”). See Antol, 82 F.3d

at 1295-96; Nerosa v. Storecast Merch. Corp., No. 02-440, 2002 WL 1998181, at *3 (E.D. Pa. Aug.

28, 2002).

the opportunity to take remedial action,’ and (2) to give ‘the EEOC the opportunity to fulfill its

statutory duties of eliminating unlawful practices through the administrative process.’” O’Donnell

v. Michaels’ Family Rest., Inc., No. 07-5386, 2008 WL 2655565, at *2 (E.D. Pa. July 1, 2008)

(quoting Jackson v. J. Legis Crozer Library, No. 07-481, 2007 WL 2407102, at *5 (E.D. Pa. Aug.

2, 2007)). As a general rule, the exhaustion requirement is “strictly construed and the failure to

pursue the appropriate administrative remedies will bar judicial review.” Elberson v. Pennsylvania,

396 F. App’x 819, 821-22 (3d. Cir. 2010).

An EEOC charge form “serves to define the scope of the Commission’s investigation and to

notify the defendant of the charges against it.” Barzanty, 361 F. App’x at 415 (citing 42 U.S.C. §

2000e-5(b)). Once a charge is filed with the EEOC, “the scope of a resulting private civil action in

the district court is ‘defined by the scope of the EEOC investigation which can reasonably be

expected to grow out of the charge of discrimination.’” Hicks v. ABT Assocs., Inc., 572 F.2d 960,

966 (3d Cir. 1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 398-99 (3d Cir. 1976)).

The Third Circuit has emphasized that “the failure of the EEOC to give notice of a charge to

the employer involved or its failure to attempt reconciliation, both of which are required by section

706(b) of Title VII, 42 U.S.C. § 2000e-5(b), does not bar a civil suit by the charging party.” Hicks,

572 F.2d at 964 (citations omitted). This holding is “based on the concept that, once the Commission

has been given its chance to reconcile the parties informally, the individual’s right to bring a civil

action becomes an indispensable part of the enforcement scheme of Title VII. This right should not

be defeated by the EEOC’s failure to comply with its statutory obligations.” Id. (citations omitted).

Thus, “[w]hile it is a well-established tenet of administrative law that a Title VII or ADA plaintiff

must exhaust his administrative remedies before seeking judicial relief, it is equally well-established

that such a plaintiff is also ‘not charged with the [EEOC’s] failure to perform its statutory duties.’”

Evans v. Maax-KSD Corp., No. 06-2804, 2006 WL 3488708, at *3 (E.D. Pa. Nov. 30, 2006) (quoting

McClease v. R.R. Donnelley & Sons Co., 226 F. Supp. 2d 695, 704 (E.D. Pa. 2002)). “Because the

statutory scheme places the responsibility on the EEOC, not a plaintiff, to issue a notice of a charge

to an employer, the EEOC’s failure to do so does not bar Plaintiff from seeking judicial relief.” Id.

Here, Defendants present a two-fold exhaustion defense. They allege that Plaintiff failed to

exhaust her administrative remedies as to her Title VII and ADA claims because Defendants never

received notice of the filing from the EEOC. Defs.’ Opp. at 6-8. Second, they assert that because

Plaintiff failed to properly dual file her EEOC charge with the PHRC, her PHRA claims are not

administratively exhausted. Id. at 8-10.

1. Title VII and ADA Claims

With respect to the Title VII and ADA claims, Defendants acknowledge Plaintiff’s assertion

that she filed a Charge of Discrimination with the EEOC on March 27, 2024, naming as respondents

the American Oncologic Hospital, Inc., the Institute for Cancer Research, and Temple University

Health System, Inc. Pl.’s Mot. at 26-27; ECF No. 43-5 (EEOC Charge). Defendants contend,

however, that they never received notice of either the filing or the case closure. Defs.’ Opp. at 7.

They argue that the Dismissals and Notices of Rights to Sue, which Plaintiff attaches as Exhibit B

to her December 17, 2024 Second Amended Complaint, see ECF No. 32-1, all show an “incident

location” of 10 Arnold Drive, West Windsor, NJ 08550, which is Plaintiff’s home address. Defs.’

Opp at 7. Thus, even though Plaintiff had been litigating against Defendants for approximately

eighteen months by the time she filed an EEOC charge, Defendants contend that Plaintiff: (a) caused

the charge to be filed with a Newark, New Jersey EEOC Area Office that had “no responsibility for

investigating claims against Pennsylvania employers or under the Pennsylvania Human Relations

Act,” and (b) failed to email a copy of the EEOC Charge to Defendants or their counsel. Id. at 7-8.

While Defendants may not have been given proper notice of the EEOC charge, the fault does

not lie with Plaintiff. Plaintiff’s March 26, 2024 EEOC Charge of Discrimination specifically lists

as respondents AOH, with a main business address of 3509 North Broad Street, Room 936,

Philadelphia, Pennsylvania 19140; FCCC, with a main business address of 333 Cot[t]man Avenue,

Philadelphia, Pennsylvania, 1911; and TUHS, with a main business address of 3509 North Broad

Street, 9th Floor, Philadelphia, Pennsylvania 19[1]40.” ECF No. 43-5 (EEOC Charge of

Discrimination). The accompanying “E-File for Attorneys Information” reveals that Plaintiff

identified each respondent at the above addresses but listed her “Worksite Address” as 10 Arnold

Drive, West Windsor, New Jersey 08550. See ECF No. 48-1 (E-File for TUHS); ECF No. 48-2 (E-

File for The Fox Chase Cancer Center); ECF No. 48-3 (E-File for The American Oncologic

Hospital). Thereafter, the EEOC’s Dismissals of Charge and Notices of Your Right to Sue dated

November 21, 2024, indicated that the EEOC inexplicably sent these documents both to Plaintiff’s

counsel and to the “Incident Location” at 10 Arnold Drive, West Windsor, New Jersey 08550, as

opposed to Defendants’ listed addresses. See ECF No. 32-1 (Dismissals of Charge and Notices of

Your Right to Sue).

Given that the Plaintiff complied with her responsibilities, and that the lack of notice is

attributable to the EEOC, Plaintiff should not now be barred from her statutory right to a civil

action.6 Accordingly, the Court finds that Plaintiff’s claims are not futile on this basis.

6 Defendants cite to Tzeng v. Care One at Madison Ave., LLC, No. 23-3011, 2024 WL

3812070, at *2 (D.N.J. Aug. 14, 2024), for the proposition that claims should be dismissed where

the plaintiff failed to exercise a reasonable effort to identify respondents to effectuate exhaustion of

administrative remedies. Defs.’ Opp. at 8. That case is distinguishable. There, the plaintiff

admittedly failed to specifically name two of three corporate defendants in her EEOC action. Tzeng,

2024 WL 3812070, at *2. Instead, the plaintiff named one corporate defendant and then sought to

name the other two related entities in her civil action. Id. at *3. The court used the four-factor test

set forth in Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977), to determine whether an

unnamed party in an EEOC complaint may be sued in a civil action. Id. at *4. The Third Circuit

found that, in that situation, no exception to the administrative exhaustion requirement was

warranted. Id. Here, the case presents a drastically different situation. Plaintiff explicitly named

all three defendants in her EEOC charge and provided their corporate addresses. The failure of the

Corporate Defendants to receive notice of the charge came at the hands of the EEOC itself, not

Plaintiff.

2. PHRA Claims

Defendants also contend that Plaintiff failed to exhaust her PHRA claims because her EEOC

Charge does not show that she properly initiated a complaint with the PHRC or requested that her

EEOC Charge be dual filed with the PHRC. Defs.’ Opp. at 9. Defendants reason that Plaintiff’s

EEOC Charge “fails to reveal any request that the EEOC transmit the Charge to the PHRC.” Id.

They further contend that Plaintiff’s assertion that she requested her EEOC Charge to be dual filed

with the PHRC—set forth in her brief and Proposed SAC—has no support in the pleadings and

“appears to be premised on nothing more than the fact that she asserted PHRA claims in her EEOC

Charge.” Id. at 10.

Plaintiff responds that her EEOC Charge “identifies each of her claims under the PHRA in

the count section, which undeniably evinces ‘an intent to file a PHRC charge in the documents filed

with the EEOC.’” Pl.’s Reply at 4 (quoting Koch v. Early Impressions Learning Ctr., LLC, No. 24-

549, 2024 U.S. Dist. LEXIS 192312, at *10 (M.D. Pa. Oct. 23, 2024)). Moreover, according to

Plaintiff, her EEOC Charge clearly indicated that she sought to recover all damages and remedies

available to her under federal and Pennsylvania law. Id. at 5.

The Court agrees with Defendants. “To bring suit under the PHRA, an administrative

complaint must first be filed with the PHRC within 180 days of the alleged act of discrimination.”

Mandel v. M&Q Packaging Corp., 706 F.3d 157, 164 (3d Cir. 2013) (citing 43 Pa. Stat. § 959(h)).

“If a plaintiff fails to file a timely complaint with the PHRC, then he or she is precluded from judicial

remedies under the PHRA.” Yeager v. UPMC Horizon, 698 F. Supp. 2d 523, 535 (W.D. Pa. 2010)

(citing Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997)).

The PHRC and the EEOC have entered into a work-share agreement whereby each agency

waives the right to initially review claims that are first filed with the other agency. See Colbert v.

Mercy Behav. Health, 845 F. Supp. 2d 633, 638 & n.3 (W.D. Pa. 2012). A claimant, however, may

not rely on the work-share agreement to satisfy all of the PHRA requirements to be entitled to the

relief available under the PHRA. See Woodson, 109 F.3d at 927 (holding that “filing with the EEOC

does not function as a filing for PHRA purposes”). Thus, a claimant must show that the PHRC

actually received the complaint. Id.; Lantz v. Hosp. of Univ. of Pa., No. 96-2671, 1996 WL 442795,

at *3 (E.D. Pa. July 30, 1996) (citations omitted). A claimant “will generally satisfy the requirements

of both agencies where he or she files a charge of discrimination with one agency and instructs that

agency to dual file with the other.” Todora v. Neshannock Twp. Sch. Dist., No. 16-647, 2016 WL

6433163, at *3 (W.D. Pa. Oct. 31, 2016) (emphasis in original) (citing Evans v. Gordon Food Servs.,

No. 14-1242, 2015 WL 4566817, at *3 (M.D. Pa. July 29, 2015)); see also Rhoades v. Young

Women’s Christian Ass’n of Greater Pittsburgh, No. 09-1548, 2010 WL 4668469, *5 (W.D. Pa. Nov.

9, 2010) (“Courts in this Circuit interpreting the worksharing arrangement have held that where a

plaintiff timely files a complaint with one agency, either the EEOC or the PHRC, coupled with a

request for dual filing, then the complaint is deemed filed with both agencies as of that date.”);

Yeager v. UPMC Horizon, 698 F. Supp. 2d 523, 536-39 (W.D. Pa. 2010) (finding PHRA charge of

discrimination was untimely where no election to dual file was indicated within the 180-day

statutory period); Seybert v. Int’l Grp. Inc., No. 07-3333, 2009 WL 722291, at *17 (E.D. Pa. Mar.

18, 2009) (observing that a claimant must show a request to dual file with the PHRC within the 180-

day mandatory filing period). “Indeed, courts within this Circuit have emphasized that claimants

must clearly designate their intent to have a charge of discrimination dual-filed with both the PHRC

and EEOC in order to preserve their state and federal claims.” Evans, 2015 WL 4566817, at *6

(citing cases).

Here, Plaintiff filed an EEOC Charge of Discrimination in the form of a Complaint. ECF

No. 44-1 (EEOC Charge). That Complaint states that Plaintiff brought the Charge “not only to

recover all the damages and remedies available under the Americans with Disabilities Act[,] . . . the

Civil Rights Act of 1964[,] . . . the Pennsylvania Human Relations Act[,] . . . and the Pennsylvania

Whistleblower Law[,] . . . but also to fully expose Respondents’ unlawful and retaliatory conduct.”

Id. at 2-3. Throughout the Charge, Plaintiff references claims under the PHRA and her intent to

seek appropriate remedies under the PHRA, but at no point does she request that the Charge be dual

filed with the PHRC. See generally id. Plaintiff also fails to provide any signed election to dual file

or cover letter requesting that the EEOC dual file her charge with the PHRC. Merely including

PHRA claims within the EEOC charge of discrimination does not rise to the level of “clearly

designat[ing her] intent to have a charge of discrimination dual-filed with both the PHRC and

EEOC.”7 Evans, 2015 WL 4566817, at *6. Because Plaintiff’s PHRA claims have not been

exhausted, any attempt to include them in an amended complaint would be futile. Accordingly,

leave to amend to add Plaintiff’s claims under the PHRA is denied.

C. Whether Plaintiff’s National Origin, Ethnicity, and Religious Discrimination

Claims Are Futile

Defendants next challenge Plaintiff’s proposed new claims of national origin, ethnicity, and

religious discrimination on grounds of futility. Defs.’ Opp. at 11-21. “‘Futility’ means that the

complaint, as amended, would fail to state a claim upon which relief could be granted.” Holst v.

Oxman, 290 F. App’x 508, 510 (3d Cir. 2008). The futility analysis on a motion to amend is

essentially the same as on a motion under Federal Rule of Civil Procedure 12(b)(6). Id. Thus, the

trial court may deny leave to amend where the amendment would not withstand a motion to dismiss.

Massarsky v. Gen. Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983). Given the liberal standard for

7 Plaintiff’s cited cases are inapposite. For example, in Fosburg v. Lehigh Univ., No. 98-

864, 1999 WL 124458, (E.D. Pa. March 4. 1999), the court found that the plaintiff had exhausted

his PHRA claims because he made a “timely request that his charge be filed with the PHRC.” Id.

at *8. Similarly, in Brennan v. Nat’l Tel. Directory Corp., 881 F. Supp. 986 (E.D. Pa. 1995), the

plaintiff filed her claim with the EEOC, expressly indicated that the matter was to be filed with the

PHRC, and EEOC personnel assured her that the claim would be cross-filed. Id. at 998.

the amendment of pleadings, however, “courts place a heavy burden on opponents who wish to

declare a proposed amendment futile.” Aruanno v. New Jersey, No. 06-296, 2009 WL 114556, at

*2 (D.N.J. Jan. 15, 2009). “If a proposed amendment is not clearly futile, then denial of leave to

amend is improper.” 6 Wright & Miller’s Federal Practice & Procedure § 1487 (2d ed.1990)

(emphasis added).

Here, Plaintiff seeks to assert new claims of national origin/ethnicity and religious

discrimination.8 To establish a claim of discrimination, a plaintiff must show that an employer had

a discriminatory animus against an employee, and that the animus resulted in a challenged action,

such as dismissal, failure to promote, or failure to hire. Lewis v. Univ. of Pittsburgh, 725 F.2d 910,

914 (3d Cir. 1983). Absent direct evidence of discrimination, a plaintiff must rely on the burden-

shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

Under this framework, a plaintiff must plead a prima facie case of discrimination, which requires

the plaintiff to set forth factual allegations that she (1) is a member of a protected class; (2) was

qualified for the position; (3) suffered an adverse employment action; and (4) the circumstances of

the adverse employment action give rise to an inference of discrimination. Jones v. Sch. Dist. of

Phila., 198 F.3d 403, 410-11 (3d Cir. 1999).

Here, Defendants contend that Plaintiff’s proposed ethnic/national origin discrimination and

religious discrimination claims fail to plead a prima facie case on three grounds. First, they argue

that Title VII does not permit discrimination/retaliation claims based on ethnicity. Defs.’ Opp. at

11-13. Second, they assert that Plaintiff has failed to plead that she is a member of any specific

national origin or religious group. Id. at 13-17. Finally, they aver that Plaintiff fails to plead facts

8 Defendants do not challenge Plaintiff’s proposed new claims under the ADA on grounds

of futility. As such, the Court grants Plaintiff leave to amend her complaint to assert these claims.

showing that any Defendant discriminated against her based on either national origin or religion.

Id. at 17-21. The Court addresses each argument individually.

1. Whether Title VII Covers Ethnicity9

Defendants posit that the Court should deny Plaintiff’s request to amend to add Title VII

claims based on ethnicity discrimination—as set forth in Counts Seven and Nine of the Proposed

SAC—because ethnicity is not a protected class under these statutes. Id. at 11. Instead, Defendants

argue that Title VII only protects against discrimination based on an individual’s “race, color,

religion, sex, or national origin[.]” Id. at 12 (quoting 42 U.S.C. § 2000e-2(a)). Defendants further

assert that because ethnicity is not a protected class, Plaintiff’s claims of ethnicity discrimination

would fail to state a claim and thus, leave to amend should be denied as futile. Id.

“Membership in a protected class is a fundamental aspect of a Title VII claim and in the

absence of any pleadings regarding what protected class Plaintiff is a member [of], the claim fails

on this basis.” McClaren v. N.J. State Dep’t of Educ., No. 14-3213, 2015 WL 337481, at *5 (D.N.J.

Jan. 26, 2015). The term “national origin” as used in Title VII, however, has been used

interchangeably with ethnicity. See Santos v. Iron Mountain Film & Sound, No. 12-4214, 2014 WL

673063, at *3 (D.N.J. Feb. 20, 2014) (using term “national origin” interchangeably with

“ethnicity”). Accordingly, ethnicity is a protected class under Title VII. See Sarullo v. U.S. Postal

Serv., 352 F.3d 789, 798 (3d Cir. 2003).

Given that Title VII covers national origin/ethnicity, and in light of Plaintiff’s allegations

that she was discriminated/retaliated against due to her Russian/Ukrainian ethnicity, the Court finds

no merit to Defendants’ first argument.

9 Plaintiff also seeks leave to bring PHRA claims on the basis of ethnicity, which Defendants

oppose on futility grounds. Because the Court has denied leave to amend to add any PHRA claims

for failure to exhaust, the Court need not address this argument.

2. Whether Plaintiff Pleads that She Is a Member of a Protected Class

Defendants next argue that Plaintiff’s claims of national origin and religious discrimination

fail to state a claim under Federal Rule of Civil Procedure 12(b)(6) because she does not plead that

she was a member of a protected class. Defs.’ Opp. 13-17. In turn, they contend that Plaintiff’s

efforts to add these claims via the Proposed SAC are futile. Id. at 17.

As to Plaintiff’s claims of national origin/ethnicity discrimination, Defendants’ argument is

misplaced. Defendants rely heavily on Henderson v. Philadelphia Housing Authority, No. 23-1236,

2024 WL 1254830 (3d Cir. Mar. 25, 2024), where the Third Circuit affirmed the district court’s

dismissal of a discrimination complaint in which the plaintiff simply alleged that she was a member

of a “protected class” without identifying that class. Id. at *2. Unlike in Henderson, however,

Plaintiff here specifically identifies her national origin/ethnicity. The proposed SAC alleges that

Plaintiff “is an immigrant of Russian and Ukrainian origin[.]” Proposed SAC ¶ 32. Plaintiff further

pleads that her “father was born in Ukraine, and as an immigrant of Russian/Ukrainian origin herself,

the Russian invasion of Ukraine has taken a great emotional toll on Plaintiff.” Id. ¶ 123. The

Proposed SAC alleges that Defendants discriminated and retaliated against her “based on religion,

national origin, and/or ethnicity.”10 Id. ¶ 211.

With respect to Plaintiff’s claim of religious discrimination, however, the Proposed SAC

fares quite differently. As noted above, membership in a protected class constitutes an element of

10 Defendants contend that such allegations are insufficient, arguing that “[w]hile [Plaintiff]

claims to be a ‘Russian/Ukrainian immigrant,’ she cannot claim to be from both nations . . . . As

[Plaintiff] well knows, Russia and Ukraine are two different nations with different languages and

cultures and their governments have been engaged in armed conflict over their respective

interpretations and the implications of these issues since approximately 2014.” Defs.’ Opp. at 14-

15.

That argument lacks merit. Plaintiff alleges that she is of both Russian and Ukrainian

descent and that the Corporate Defendants discriminated against her because of that heritage.

Whether the two countries have cultural and/or political differences is irrelevant for purposes of this

case.

a prima facie case of Title VII discrimination. McDonnell Douglas, 411 U.S. at 802. For religious

discrimination claims in particular, employees must have informed their employers of their religious

beliefs prior to the alleged discriminatory action because, unlike other bases of discrimination claims

like race or gender, an employee’s religion is often unknown to the employer. See Wilkerson v. New

Media Tech. Charter Sch., 522 F.3d 315, 319 (3d Cir. 2008); Morrison v. Access Servs., Inc., No.

14-4685, 2014 WL 5286604, at *4 (E.D. Pa. Oct. 15, 2024) (quoting Geraci v. Moody-Tottrup, Int’l,

Inc., 82 F.3d 578, 581 (3d Cir. 1996)).

Here, Plaintiff fails to plead that she is a member of the Jewish faith. Indeed, the sole

references to Plaintiff’s religious background consist of the following:

• “Plaintiff objected to Defendant Cook’s [antisemitic] comments by

explaining that many of her friends are Jewish and that she grew up

surrounded by Jewish students and teachers when she was a student at a

specialized Physics and Math high school #30 in St. Peter[s]burg,

Russia.” Proposed SAC ¶ 67.

• “Plaintiff was especially offended by Defendant Cook’s antisemitism as

Plaintiff’s grandmother’s parents and young siblings sadly lost their lives

in the Holocaust.” Id. ¶ 68.

• “[O]n February 2, 2023, Plaintiff sent Defendant Medlin the following

complaint prior to a meeting with Defendant Medlin to discuss her

accommodation request: . . . [describing various complaints regarding

Defendant Sangeeta Bardhan Cook] Sangeeta also commented on another

occasion that Israelis are the worst to negotiate with. Sangeeta does not

know that my grandmother was Jewish and that all her family including

little brothers and sisters, was killed (burned alive) by Nazis during the

WWII. My grandmother was the only one who survived because she was

a nurse at the front. I responded to Sangeeta that all my friends are Jewish

and that I grew up surrounded by Jewish students and teachers when I

was a student at a specialized physics and math high school in St.

Petersburg, Russia.” Id. ¶ 103.

Nothing in these allegations suggests that Plaintiff herself identified as Jewish. Even in her moving

papers, Plaintiff argues only that she has “Jewish familial ties”—not that she herself is Jewish. Pl.’s

Mot. at 34.

Based on these allegations, the Proposed SAC fails to state a claim for religious

discrimination under Title VII. Although Plaintiff suggests that her grandmother was Jewish, at no

point does she claim to be a member of the Jewish faith. Proposed SAC ¶ 68. Moreover, as noted

above, Plaintiff admits that Defendant Cook, who was responsible for the alleged antisemitic

comments, did not know of Plaintiff’s Jewish heritage. Id. ¶ 103. Plaintiff’s mere allegation that

all of her friends are Jewish or that she has Jewish familial ties does not establish the crucial element

that she herself is a member of that group.11 Because Plaintiff has failed in all three iterations of

her complaint to plead that she is a member of a protected religious group, the Court finds that

Plaintiff’s efforts to add a religious discrimination claim would be futile.

3. Whether Plaintiff Has Pled Facts Showing National Origin Discrimination

Defendants’ final challenge to Plaintiff’s proposed national origin discrimination claims

asserts that Plaintiff fails to plead facts showing that she suffered an adverse employment action

under circumstances giving rise to an inference of unlawful discrimination.12 Defs.’ Opp. at 17.

To adequately plead an inference of discrimination, a plaintiff must allege facts upon which

a “court can infer that if the employer’s actions remain unexplained, it is more likely than not that

such actions were based on impermissible reasons.” EEOC v. Metal Serv. Co., 892 F.2d 341, 348

(3d Cir. 1990). One way that a plaintiff can create such an inference is by asserting that she was

11 Plaintiff’s case citations are inapposite. See Pl.’s Reply at 7. Plaintiff cites a series of

cases for the proposition that “Plaintiff need not be the subject of the hostile or offensive comments

for the conduct to be actionable.” Id. (citing Vinson v. Taylor, 753 F.2d 141, 146 (D.C. Cir. 1985);

Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987); Hall v. Gus Constr., 842 F.2d

1010, 1015 (8th Cir. 1988); Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 610-11 (1993); Cutler v.

Dorn, 196 N.J. 419, 433 (2008)). While the offensive comments in these cases were not made

directly to the plaintiff, the plaintiff—unlike Plaintiff here—was a member of the protected group

about which the comments were made.

12 Defendant also challenges whether Plaintiff has pled facts showing religious

discrimination. Defs.’ Opp. at 17. Having already found that Plaintiff’s religious discrimination

claim is futile for failure to allege membership in a protected class, the Court need not address this

argument.

treated less favorably than similarly-situated employees outside of the protected class. Jones, 198

F.3d at 413. While “similarly-situated” does not necessarily mean identically situated, the plaintiff

must nevertheless be similar in “all relevant respects.” Opsatnik v. Norfolk S. Corp., 335 F. App’x

220, 222-23 (3d Cir. 2009) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)); see

Wilcher v. Postmaster Gen., 441 F. App’x 879, 882 (3d Cir. 2011) (adopting standard used in other

circuits, finding that “to be considered similarly situated, comparator employees must be similarly

situated in all relevant respects.”). Alternatively, a plaintiff may “rely on circumstantial evidence

that otherwise shows a causal nexus between his membership in a protected class and the adverse

employment action.” Greene v. V.I. Water & Power Auth., 557 F. App’x 189, 195 (3d Cir. 2014).

The Court finds that Plaintiff’s Proposed SAC is devoid of allegations connecting Plaintiff’s

Russian/Ukrainian heritage to any adverse employment action. Plaintiff asserts that, on March 28,

2023, Defendant Cook informed Plaintiff that she needed Plaintiff’s Russian language skills to

negotiate with a Russian Company that held the rights to a promising anti-cancer drug. Proposed

SAC ¶¶ 118-19. Plaintiff agreed to help even though she was apprehensive because the Russian

invasion of Ukraine had taken an emotional toll on her. Id. ¶¶ 120, 122-23. “Plaintiff [also] worried

that Corporate Defendants’ affiliations with a Russian company, at the present time could pose

serious problems for Corporate Defendants both legally and ethically.” Id. ¶ 124. After performing

her own research, Plaintiff determined that the Russian Company had direct ties to the Russian

government, which was allegedly subject to sanctions by the United States. Id. ¶¶ 125-28.

Plaintiff raised her legal concerns with Defendant Cook about acquiring intellectual property

rights from the Russian Company as well as her ethical concerns given the current geopolitical state

created by the situation in Ukraine. Id. ¶¶ 130-33. Having not received a satisfactory response from

Cook, Plaintiff elevated her concerns to Defendant Maddox, who, according to Plaintiff, likewise

dismissed her concerns. Id. ¶¶ 134-41. Plaintiff claims that she “understandably feared that her

involvement with this project could pose a serious risk to her career, especially due to her

Russian/Ukrainian origin.” Id. ¶ 142. Accordingly, Plaintiff sent another email to Cook claiming

that Cook had knowingly involved her in the Russian Company project “without [Plaintiff] knowing

all the problematic background information surrounding it, and this could have created serious

problems for [her] in the future, personally and professionally.” Id. ¶ 143 (emphasis omitted). One

day after Plaintiff sent this email to Cook, Defendants placed Plaintiff on a performance

improvement plan and gave her a final, written warning, noting that her reports of unlawful conduct

“assum[ed] malicious intent in others.” Id. ¶¶ 144-51. Ultimately, Plaintiff was terminated,

effective June 21, 2023. Id. ¶ 176. Subsequent to her termination, Plaintiff received an

“anonymous” tip that Defendant Cook had “exhibited hostility towards a coworker of

Russian/Ukrainian descent at her previous job,” and that Cook had referred to Plaintiff as the “Crazy

Russian Lady” in writing. Id. ¶ 180(d).

These allegations, however, do not permit an inference that Plaintiff’s termination was

causally connected to her Russian/Ukrainian heritage. While Cook’s singular remark about Plaintiff

being a “Crazy Russian Lady” could conceivably “constitute evidence of the atmosphere in which

[an] employment decision was carried out,” such a stray remark standing alone is insufficient to

establish discriminatory intent. See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 521 (3d Cir.

1997); see also Rivera v. PRA Health Scis., No. 22-2251, 2023 WL 7021183, at *11 (E.D. Pa. Oct.

24, 2023) (finding that a single stray comment by a supervisor about a plaintiff’s national origin,

otherwise untethered to the adverse employment decision, was insufficient to establish a causal

connection); Leeson v. Dejoy, No. 20-828, 2020 WL 7264067, at *2 (W.D. Pa. Dec. 10, 2020)

(granting motion to dismiss where apart from identifying his religious affiliation, plaintiff failed to

identify any specific facts creating a plausible link between that religious affiliation and his removal

from employment); Gulati v. Chao, No. 17-6271, 2019 WL 4597567, at *8 (D.N.J. Sept. 23, 2019)

(finding that “minimal alleged comments regarding Plaintiff’s race and national origin” are “stray

remarks that are insufficient to give rise to an inference of discrimination”); Elmarakaby v. Wyeth

Pharms., Inc., No. 09-1784, 2015 WL 1456686, at *7 (E.D. Pa. Mar. 30, 2015) (finding that “vague

comment from a supervisor” about plaintiff’s national origin did not establish a “facially plausible”

claim of discrimination). This is particularly true where Plaintiff alleges no temporal proximity

between the remark and the adverse employment action.

Given that the addition of a national origin discrimination claim would clearly be futile—

i.e., it would not withstand motion to dismiss under Rule 12(b)(6)—the Court denies leave to

amend.13

D. Pennsylvania Whistleblower Law (“PWL”) Claims

Plaintiff also seeks to add a claim under the Pennsylvania Whistleblower Law, 43 Pa. Stat.

§§ 1421-1428. The PWL states in relevant part:

No employer may discharge, threaten or otherwise discriminate or

retaliate against an employee regarding the employee’s

compensation, terms, conditions, location or privileges of

employment because the employee or a person acting on behalf of the

employee makes a good faith report or is about to report, verbally or

in writing, to the employer or appropriate authority an instance of

wrongdoing or waste by a public body or an instance of waste by any

other employer as defined in this act.

43 Pa. Stat. § 1423(a). A “good faith report” is defined as one “made without malice or

consideration of personal benefit and which the person making the report has reasonable cause to

believe is true.” Id. § 1422.

13 It remains unclear from the Proposed SAC whether Plaintiff is also attempting to plead

a hostile work environment claim. Defendant provides an analysis of why such a claim would be

futile. Defs.’ Opp. at 20-21. Plaintiff, however, does not address the addition of such a claim in her

initial motion to amend or her reply brief, arguing only that she is seeking leave to add discrimination

claims. See Pl.’s Mot. at 33-35. Accordingly, the Court presumes that no such claim is present.

To establish a prima facie case under the PWL, a plaintiff must prove “‘by a preponderance

of the evidence, that, prior to the alleged acts of retaliation, [s]he had made a good faith report of

wrongdoing to appropriate authorities.’” Kimes v. Univ. of Scranton, 126 F. Supp. 3d 477, 504

(M.D. Pa. 2015) (quoting O’Rourke v. Commonwealth, 778 A.2d 1194, 1200 (Pa. 2001) (internal

quotations omitted)). The plaintiff must also present evidence of a causal connection between her

report of wrongdoing and the alleged acts of retaliation. Golaschevsky v. Dep’t of Env’t Prot., 720

A.2d 757, 759-60 (Pa. 1998). If the plaintiff sets forth a prima facie case of retaliation, “the burden

shifts to the defendant employer to show its actions were lawful.” Johnson v. Res. for Hum. Dev.,

Inc., 789 F. Supp. 2d 595, 601 (E.D. Pa. 2011) (citing O’Rourke, 778 A.2d at 1200). If the employer

can then demonstrate, by a preponderance of the evidence, that the action taken “‘occurred for

separate and legitimate reasons, which are not merely pretextual,’” the employer will not be held

liable. Id. (quoting 43 Pa. Stat. § 1424(c)).

Defendants contend that Plaintiff’s addition of a PWL claim would be futile because the

claim is untimely, does not relate back to Plaintiff’s prior pleadings, and otherwise fails to state a

plausible basis for relief. Defs.’ Opp. at 21.

1. Relation Back

Defendants first argue that Plaintiff’s whistleblower claim is futile because it barred by the

applicable statute of limitations. Id. Specifically, Defendants note that the alleged retaliation—i.e.,

Plaintiff’s termination from Defendants’ employ—occurred on June 21, 2023. Id. at 21-22. Under

the PWL’s 180-day statute of limitations, Plaintiff was required to file her complaint by December

21, 2023. See 43 Pa. Stat. § 1424(a). Defendants posit that although Plaintiff initiated an action in

New Jersey Superior Court in July 2023, she did not include a PWL claim in her original Complaint

and never sought to add such a claim until approximately two years after the statute of limitations

expired. Defs.’ Opp. at 22.

Plaintiff responds that her PWL claim “undisputedly relates back to her first Complaint filed

on July 11, 2023, in which she details the factual allegations that gave rise to her claim under

CEPA.” Pl.’s Mot. at 37. She contends that, under the liberal relation back rule of Federal Rule of

Civil Procedure 15(c)(1)(B), Defendants were given fair notice that they would be liable under the

PWL “as they were aware Plaintiff had brought forth similar claims under New Jersey law in her

Complaint.” Id. at 38.

The Court finds merit to Plaintiff’s relation back defense. “Where the statute of limitations

has expired, a plaintiff may only add a new claim or name a new party if the plaintiff demonstrates

that the new claim or party relates back to the filing date of the original complaint.” Ferencz v.

Medlock, 905 F. Supp. 2d 656, 665 (W.D. Pa. 2012).

An amendment to a pleading relates back to the date of the original

pleading when:

(A) the law that provides the applicable statute of limitations allows

relation back;

(B) the amendment asserts a claim or defense that arose out of the

conduct, transaction, or occurrence set out--or attempted to be set

out--in the original pleading; or

(C) the amendment changes the party or the naming of the party

against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied

and if, within the period provided by Rule 4(m) for serving the

summons and complaint, the party to be brought in by

amendment:

(i) received such notice of the action that it will not be

prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have

been brought against it, but for a mistake concerning

the proper party’s identity.

Fed. R. Civ. P. 15(c)(1); see also Garvin v. City of Phila., 354 F.3d 215, 222 (3d Cir. 2003).

“Notice is the ‘linchpin’ of Rule 15(c).” Armstrong v. Gretsky, No. 20-160, 2023 WL

2903977, at *10 (E.D. Pa. Apr. 11, 2023) (quoting Colbert v. City of Phila., 931 F. Supp. 389, 392

(E.D. Pa. 1996)), aff’d, No. 23-1765, 2024 WL 1045230 (3d Cir. Mar. 11, 2024). Subsection

(c)(1)(B) requires “the existence of a common ‘core of operative facts’ uniting the original and

newly asserted claims.” Mayle v. Felix, 545 U.S. 644, 659 (2005). A common core of operative

facts exists if “the opposing party has had fair notice of the general fact situation and legal theory

upon which the amending party proceeds.” Bensel v. Allied Pilots Ass’n, 387 F.3d 298, 310 (3d Cir.

2004). Thus, new claims will relate back if they “restate the original claim with greater particularity

or amplify the factual circumstances surrounding the pertinent conduct, transaction or occurrence in

the preceding pleading.” Id. If, however, a new claim “asserts a new ground for relief supported

by facts that differ in both time and type from those the original pleading set forth,” the claim will

not relate back. Mayle, 545 U.S. at 650. Stated differently, “only where the opposing party is given

fair notice of the general fact situation and the legal theory upon which the amending party proceeds

will relation back be allowed[;] . . . amendments that significantly alter the nature of a proceeding

by injecting new and unanticipated claims are treated far more cautiously.” Glover v. FDIC, 698

F.3d 139, 146 (3d Cir. 2012) (cleaned up).

Here, the Court finds that the original and First Amended Complaint gave Defendants fair

notice of Plaintiff’s PWL claims. The original Complaint, filed on July 11, 2023, specifically

alleged that Plaintiff “[blew] the whistle on Corporate Defendants’ unethical and unlawful business

affiliations with Russian companies financed by a sanctioned Russian fund.” ECF No. 1-1 (Compl.)

at 19 (cleaned up). The Complaint went on to detail how Plaintiff discovered that the Russian

Company, with whom the Corporate Defendants intended to do business, had been sanctioned by

the United States for violations of international law and for being owned or controlled by the Russian

government, in direct contravention of Executive Order 14024. Id. ¶ 96. Plaintiff raised her

concerns with Defendants on several occasions. Id. ¶¶ 98-108. One day later, Defendants issued

Plaintiff a final written warning and placed her on a performance improvement plan. Id. ¶ 112. On

April 20, 2023, Plaintiff sent Defendants notice of her intent to file this lawsuit. Id. ¶ 120. The

Complaint asserted that two months later, following increased work expectations on Plaintiff,

Defendants terminated her employment “in retaliation for her blowing the whistle on Corporate

Defendants’ unlawful, unethical business dealings with a Russian company sponsored by a

sanctioned fund with direct ties to the Russian government.” Id. ¶¶ 124, 130, 132. Count Four of

the original Complaint then pled a claim under CEPA.14 Id. ¶¶ 173-81.

The Proposed SAC repeats all of these allegations and then brings a new claim for violation

of the PWL. Proposed SAC ¶¶ 115-76, 266-70. Both the CEPA claim raised in the original

Complaint and the PWL claim in the Proposed SAC rest on the same common core of operative

facts but differ only on the specific statute relied upon for relief. Defendants cannot argue that they

did not have notice of either the underlying facts or Plaintiff’s assertion of a whistleblower

retaliation claim, whether under CEPA or the PWL. Under the liberal standard of Rule 15(c), the

Court finds that this claim relates back.15

14 Plaintiff’s CEPA claim is misnumbered as a second Count Four. The Court has followed

the numbering in the Complaint to avoid ambiguity.

15 Defendants contend that the relation back argument fails “because the factual allegations

set forth in her Complaint and FAC focused on a Presidential Executive Order she claimed to have

been violated, which cannot form the basis for protected activity under the PWL.” Defs.’ Opp. at

23. Defendants then go into an analysis of how violation of an Executive Order does not constitute

either “wrongdoing” or “waste” as defined in the PWL. Id. at 23-24. That argument, however, goes

to futility—not relation back. Moreover, even assuming that Defendants are correct that “the PWL

protects a distinct and significantly more focused scope of conduct relative to CEPA,” Defs.’ Opp.

24, Defendants fail to explain how Plaintiff’s challenge to a broader swath of conduct in the original

Complaint failed to put them on notice of the purportedly narrower conduct set forth in the Proposed

SAC.

2. Whether the PWL Claim Is Futile

Alternatively, Defendants contend that Plaintiff’s PWL claim is futile. Defs.’ Opp. 25-28.

As noted above, the PWL makes it unlawful for an “employer to ‘discharge, threaten or otherwise

discriminate or retaliate against an employee . . . because the employee . . . makes a good faith report

. . . to the employer or appropriate authority [of] an instance of wrongdoing or waste by a public

body.” 43 Pa. Stat. § 1423(a). The PWL defines “employer,” in relevant part, as “[a] corporation

for profit . . . which receives money from a public body to perform work or provide services.” Id.

§ 1422. The definition of “public body” includes “[a]ny other body which is created by

Commonwealth or political subdivision authority or which is funded in any amount by or through

Commonwealth or political subdivision authority or a member or employee of that body.” Id. The

Act then defines “waste” as “[a]n employer’s conduct or omissions which result in substantial abuse,

misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or

political subdivision sources.” Id. “Wrongdoing” is defined as “[a] violation which is not of a

merely technical or minimal nature of a Federal or State statute or regulation, of a political

subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest

of the public or the employer.” Id.

Against this statutory backdrop, Defendants make three futility arguments. First, Defendants

assert that Plaintiff’s claim that she reported concerns regarding Defendants’ potential violation of

Executive Order 14024 cannot sustain an allegation of protected activity under the PWL “because

an Executive order is not a Federal or State statute or regulation, or a code of conduct or ethics[,]”

as defined in the PWL. Defs.’ Opp. at 25-26. They reason that—albeit in a completely different

context—the Third Circuit has held that an Executive Order is not a “law of the United States.” Id.

(citing Loc. 1498, Am. Fed’n of Gov’t Emps. v. Am. Fed’n of Gov’t Emps., AFL/CIO, 522 F.2d 486,

491 (3d Cir. 1975) (holding that an Executive Order was not a law of the United States for purposes

of creating federal question jurisdiction under 28 U.S.C. § 1331)).

That argument is misplaced. Defendants, who bear the burden of proving futility, have cited

no authority for the proposition that an employee’s reports of a potential violation of an Executive

Order do not fall within the ambit of protected conduct under the PWL. Indeed, the Third Circuit

has found “no doubt” that “executive orders and regulations have the force of law.” Farmer v.

Phila. Elec. Co., 329 F.2d 3, 8 (3d Cir. 1964). “Courts in this district have easily concluded the

same.” Consol. Rail Corp. v. Aspen Specialty Ins. Co., No. 17-12281, 2019 WL 2425118, at *7

(D.N.J. June 10, 2019) (citing cases). Accordingly, the Court declines to find this proposed claim

futile on this ground.

Defendants’ second argument, however, has significantly more merit. Defendants assert that

Plaintiff’s factual allegations do not allege a report of wrongdoing under the PWL because they

relate to future, hypothetical conduct and not prior alleged wrongdoing. Defs.’ Opp. at 26. The

Court agrees.

The Pennsylvania Superior Court has held that “to prove a violation of the Whistleblower

Law, [a plaintiff] must demonstrate she made a report of some action by her employer or its agent,

which, if proven, would constitute a violation of a law or regulation. Moreover, the report must be

of an actual violation, not a potential or contemplated violation.” Greco v. Myers Coach Lines, Inc.,

199 A.3d 426, 434 (Pa. Super. Ct. 2018); see also Anderson v. Bd. of Sch. Dirs. of the Millcreek

Twp. Sch. Dist., 574 F. App’x 169, 173-74 (3d Cir. 2014) (holding that a plaintiff’s statement that

another employer might engage in certain illegal conduct in the future does not constitute

whistleblowing activity under the PWL); Olson v. Lehigh Univ., 297 A.2d 732 (Pa. Super. Ct. 2023)

(requiring an actual violation as opposed to a potential or contemplated allegation). “This test is

objective: it is not sufficient that a plaintiff subjectively believes or believed that a public entity

engaged in wrongdoing.” Sweda v. Upper Bucks Cnty. Tech. Sch., No. 22-1787, 2023 WL 5351980,

at *10 (E.D. Pa. Aug. 18. 2023); see also Peck v. Bolognone, 24-2182, 2025 WL 1262957, at *2 (3d

Cir. May 1, 2025) (affirming dismissal of a PWL claim “[b]ecause these violations were ‘potential

or contemplated’ as opposed to ‘actual,’” and thus, plaintiff’s report was not protected).

The allegations of the Proposed SAC allege only a potential or contemplated violation of

law. Plaintiff claims that she conducted approximately thirty minutes of research of publicly-

available information to discover that the Russian Company was sponsored by a United States

sanctioned Russian entity with direct ties to the Russian government. Id. ¶¶ 124-28. Based on this

research, Plaintiff believed there was a substantial risk with the Corporate Defendants’ plans to

acquire the intellectual property covering the drug. Id. ¶ 129. Plaintiff raised her concerns with

Cook and remarked that proceeding with the deal would be in direct violation of President Biden’s

Executive Orders involving Russia-related sanctions. Id. ¶¶ 130-32. During an April 14, 2023

Teams call with Cook and Maddox, Plaintiff reiterated her belief that it was unethical for the

Corporate Defendants to negotiate and enter into a deal with a company likely financed by a

sanctioned Russian entity. Id. ¶ 138 (emphasis added). Maddox called Plaintiff on April 18, 2023,

and told her that the Corporate Defendants would “be okay with the PR” if the deal went forward.

Id. ¶ 140.

Regardless of the validity of Plaintiff’s concerns, these allegations allow no inference of

either an actual or imminent violation of any law. By all accounts, Defendants had not even begun

negotiation with the Russian Company but rather were merely considering entering into a deal to

acquire certain intellectual property. Many of Plaintiff’s voiced concerns objected to the ethicality

of the deal as opposed to its illegality. Ultimately, Plaintiff’s subjective belief that Defendants were

potentially going to engage in wrongdoing is an insufficient basis on which to premise a PWL claim.

Finally, even if Plaintiff’s allegations could be broadly construed as complaints of

“wrongdoing,” Defendants correctly note that she has failed to plead causation. Defs.’ Opp. 26-28.

A prima facie case requires more than evidence of the mere fact of a report followed by a

termination. Lutz v. Springettsbury Twp., 667 A.2d 251, 254 (Pa. Commw. 1995). Rather, “[i]n

order to sustain a Whistleblower Law claim, a plaintiff must plead facts or surrounding

circumstances that support an inference that the report of waste [and/or wrongdoing] led to her

dismissal.” Bennett v. Republic Servs., Inc., 179 F. Supp. 3d 451, 456 (E.D. Pa. 2016). “An

employee who has been terminated based on a filed report and wants to base his or her complaint

on their employer’s violation under the Whistleblower Law must specify how their employer is

guilty of waste and/or wrongdoing.” Gray v. Hafer, 651 A.2d 221, 225 (Pa. Commw. 1994), aff’d,

669 A.2d 33d (Pa. 1995). Furthermore, the employee “must also show by concrete facts or

surrounding circumstances that the report led to [her] dismissal, such as that there was specific

direction or information [she] received not to file the report or there would be adverse consequences

because the report was filed.” Id.; see also Baker v. Benton Area Sch. Dist., 418 F. Supp. 3d 17, 57

(M.D. Pa. 2019) (citing Gray, 651 A.2d at 224).

Temporal proximity between the whistle-blowing activity and the adverse employment

action is one circumstance that may support an inference of a causal connection. E.g., McAndrew

v. Bucks Cnty. Bd. of Comm’rs, 982 F. Supp. 2d 491, 505 (E.D. Pa. 2013). If “temporal proximity”

is not “unusually suggestive,” courts must examine whether “the proffered evidence, looked at as a

whole, may suffice to raise the inference of causation.” Kerrigan v. Otsuka Am. Pharm., Inc., 706

F. App’x 769, 772 (3d Cir. 2017) (citation and internal quotation marks omitted). Courts measure

temporal proximity from the first date on which the plaintiff engaged in protected activity. Blakney

v. City of Phila., 559 F. App’x 183, 186 (3d Cir. 2014). Lapses in time of more than a month between

the protected activity and the adverse employment action are not deemed “unusually suggestive.”

See Thomas v. Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (finding three weeks not unusually

suggestive).

Here, Plaintiff fails to show that she filed any report identifying any specific wrongdoing,

only that she raised her concerns with Cook and Maddox about the potential Executive Order

violation resulting from the deal. Proposed SAC ¶¶ 124-39. These conversations occurred between

April 14, 2023, and April 17, 2023. Id. ¶¶ 138-40. Plaintiff also sent an extensive email to

Defendant Cook about Cook’s attempts to involve Plaintiff in an allegedly unlawful and unethical

Russian transaction. Id. ¶ 143. One day later, Defendants issued Plaintiff a final written warning

and placed her on a performance improvement plan because of Plaintiff “assuming malicious intent

in others.” Id. ¶¶ 149-51. After two months on the PIP, Defendants terminated her. Id. ¶¶ 169-76.

Plaintiff cites no “concrete facts” occurring in the interim that suggest she received any specific

direction not to file a report regarding the Russian deal or that there would be adverse consequences.

Given that Plaintiff alleges nothing more than “the mere fact of a report followed by a termination,”

Johnson v. Res. for Hum. Dev., 789 F. Supp. 2d 595, 602 (E.D. Pa. 2011), she has failed to set forth

a prima facie case.

In short, the Court finds that Plaintiff’s proposed PWL claim would be futile because it fails

to state a plausible claim for relief. The Proposed SAC is devoid of allegations that Plaintiff reported

any actual wrongdoing by Defendants. And even assuming that such a report existed, Plaintiff has

failed to allege a causal connection between her complaints and her termination. Accordingly, leave

to amend to assert a PWL claim is denied.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Leave to File an Amended Complaint is

granted in part and denied in part as follows:

1. Plaintiff’s request for leave to add factual allegations to establish her entitlement to the

protections of NJLAD and CEPA is DENIED;

2. Leave to add claims under the ADA is GRANTED;

3. Leave to add claims for national origin/ethnic or religious discrimination under Title VII

and the PHRA is DENIED;

4. Leave to add a claim under the PWL is DENIED; and

5. To the extent Plaintiff seeks leave to add allegations supporting her remaining claims of

discrimination and retaliation—found in the Proposed SAC at paragraphs 178-183—

leave is GRANTED.

An appropriate Order follows.

s/Elizabeth A. Pascal

ELIZABETH A. PASCAL

United States Magistrate Judge

cc: Edward S. Kiel, U.S.D.J.