REPORT AND RECOMMENDATION

ECF No. 8

LISA PUPO LENIHAN, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the Motion to Dismiss (ECF No. 8) filed by Defendant Schneider National Carriers, Inc. ("Defendant") be DENIED given that Plaintiff has sufficiently alleged that he was disciplined when he was forced to choose between two adverse employment actions.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Hossam Mohammed ("Plaintiff") filed the operative Complaint against Defendant in the Court of Common Pleas of Allegheny County, Pennsylvania, and Defendant removed the case to this Court. (Notice of Removal, ECF No. 1.) According to the Complaint, Defendant employs Plaintiff as a truck driver, and Defendant requires all of its drivers to undergo a paid-for physical as a term and condition of employment. (Compl., ECF No. 1-2 ¶¶ 6, 8.) The physical includes a hernia check, which typically requires the patient to undress from the waist down. (Id. ¶ 9.) However, undressing from the waist down for a hernia check violates Plaintiff's sincerely held religious beliefs, so Plaintiff requested an accommodation in which he would undergo a check for hernias via a different procedure. (Id. ¶¶ 9-11.) In the past, Plaintiff has been cleared for hernias based on a physician conducting the exam over his clothes, but on or around December 29, 2016, Defendant refused to allow any accommodations for the physical and informed Plaintiff that failure to comply with the physical would result in a voluntary resignation. (Id. ¶¶ 12-14.) Defendant refused to pay for a second physical, requiring Plaintiff to pay for the physical himself to maintain his employment. (Id. ¶ 14.)

Count I of Plaintiff's Complaint alleges that Defendant failed to reasonably accommodate his religious preferences, violating Title VII, 42 U.S.C. § 2000e-2(a)(1). (Id. ¶¶ 15-19.) Count II alleges a parallel violation under the Pennsylvania Human Relations Act, 43 Pa. Conns. Stat. Ann. § 995(a) et seq. (Id. ¶¶ 20-22.) Defendant filed its Motion to Dismiss (ECF No. 8) with a Memorandum in Support of the Motion to Dismiss (ECF No. 9). Plaintiff filed a Brief in Opposition (ECF No. 15), and Defendant replied (ECF No. 17).

III. LEGAL STANDARD

A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016). But detailed pleading is not generally required. Id. The Rules demand only "a short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).

Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, the court must "tak[e] note of the elements [the] plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) ("Mere restatements of the elements of a claim are not entitled to the assumption of truth.") (citation omitted). Finally, "[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; see also Connelly, 809 F.3d at 786. Ultimately, the plausibility determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

IV. ANALYSIS

Defendant moves to dismiss both counts (i.e. the entire case) on the basis that Plaintiff fails to allege—and could not allege—that Defendant actually disciplined him or that he suffered any type of adverse employment action, and, therefore, he fails to state a prima facie case for failure to accommodate. The question presented here boils down to whether an employer plausibly fails to accommodate one's religious beliefs when it forces the employee to choose between discharge and suffering a financial loss in order to avoid violating his sincerely held religious belief.

Title VII and PHRA1 require an employer to "make reasonable accommodations for its employees' religious beliefs and practices unless doing so would create an `undue hardship' for the employer." Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 319 (3d Cir. 2008) (quoting Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 224 (3d Cir. 2000)). "To establish a prima facie case of a failure to accommodate claim, the employee must show: (1) she has a sincere religious belief that conflicts with a job requirement; (2) she told the employer about the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement." Id.

In its Motion to Dismiss, Defendant only challenges the third prong of Plaintiff's prima facie case, arguing that threats of discharge are insufficient to satisfy the last prong. (ECF No. 9, at 3.) Plaintiff counters that a threat of termination satisfies the third prong and that forcing an employee to choose between losing his job and paying out-of-pocket to have an accommodating physical certainly meets the third prong. (ECF No. 15, at 5.)

Turning to the third prong of the prima facie case, courts within this circuit equate "discipline" with an "adverse employment action." See Brown v. Vanguard Grp., Inc., No. 16-946, 2017 U.S. Dist. LEXIS 12853, at *35 n.11 (E.D. Pa. Jan. 30, 2017); Martin v. Enter. Rent-A-Car, No. 00-CV-6029, 2003 U.S. Dist. LEXIS 1191, at *26 (E.D. Pa. Jan. 15, 2003). "An adverse employment action is `an action by an employer that is serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment.'" Brown, 2017 U.S. Dist. LEXIS 12853, at *35 n.11 (quoting Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)).

Our Court of Appeals has yet to address the issue presented here,2 so both parties rely upon a plethora of cases, some from district courts within this circuit and some from other courts of appeals and district courts. In support of his argument that a threat of discharge alone qualifies as "discipline," Plaintiff directs this Court to EEOC v. Townley Engineering & Manufacturing Co., 859 F.2d 610 (9th Cir. 1988), and Rodriguez v. City of Chicago, No. 95 C 5371, 1996 WL 22964, at *3 (N.D. Ill. Jan. 12, 1996). In Townley Engineering, the Court of Appeals for the Ninth Circuit stated in a footnote:

Townley Eng'g & Mfg. Co., 859 F.2d at 614 n.5 (internal citation omitted). The Rodriguez court agreed with this holding, adding that "[i]t is nonsensical to suggest that an employee who, when forced by his employer to choose between his job and his faith, elects to avoid potential financial and/or professional damage by acceding to his employer's religiously objectionable demands has not been the victim of religious discrimination. . . ." Rodriguez, 1996 WL 22964, at *3 (citing Townley Eng'g & Mfg., 859 F.2d 610). However, Rodriguez was criticized in Vawter v. Alcoa, Inc., as incongruent with more recent Seventh Circuit law because the threat of discipline was not accompanied by any "negative alteration in the terms of his employment." No. 407-CV-19 JVB, 2008 WL 5220833, at *4-5 (N.D. Ind. Dec. 10, 2008). Townley Engineering remains good law, but Plaintiff does not cite to any cases from this circuit that support his position or lend support to the Townley Engineering holding.

Defendant relies heavily on cases from the Second Circuit. In Bowles v. New York City Transit Authority, the summary judgment record showed that "the only employment action whatsoever that Bowles claims to have suffered in connection with [the defendant's] alleged failure to accommodate him is [his station supervisor's] comment that he should seek a job in the private sector if he wanted weekends off, which he construes as a threat of termination." 285 F. App'x 812, 814 (2d Cir. 2008). The Court of Appeals for the Second Circuit agreed with the district court's conclusion that such a stand-alone comment, without evidence that it "ripened" into any further action, was "insufficient to establish the third prong of Bowles's prima facie case." Id. Defendant also relies on Brooks v. City of Utica, which held that "unrealized threats do not constitute adverse employment actions." 275 F.Supp.3d 370, 378 (N.D.N.Y. 2017) (addressed a disparate treatment claim at summary judgment) (emphasis added). But other New York district court opinions not cited by Defendant have more precisely addressed threats in the context of failure to accommodate and concluded that "the threat of an adverse action is sufficient to meet this element of the prima facie case, provided that the plaintiff can prove that the employer is in fact intransigent and that the threatened action is causally related to the conflict between the employer's policy and the plaintiff's religion." Khan v. FRB, No. 02-cv-8893, 2005 U.S. Dist. LEXIS 1543, at *18 (S.D.N.Y. Feb. 2, 2005).

Defendant points to four cases within this circuit to support its position. Raskind v. Resources for Human Development provides little guidance as the summary judgment record showed that the defendant allowed the plaintiff to take all of the time off that he requested for religious purposes, so the plaintiff failed to establish a prima facie case for failure to accommodate. No. 16-cv-0629, 2017 U.S. Dist. LEXIS 182261, at *26 (E.D. Pa. Nov. 3, 2017). The same is true of Dart v. County of Lebanon. No. 13-cv-02930, 2014 U.S. Dist. LEXIS 132981, at *27 (M.D. Pa. Sep. 23, 2014) ("Plaintiff does not allege that she told her employer that she was seeking further changes to her schedule due to a religious conflict."). Walsh v. Irvin Stern's Costumes, on the other hand, supports Defendant's argument that an unfulfilled threat will not suffice. No. 05-cv-2515, 2006 U.S. Dist. LEXIS 2120, at *16-17 (E.D. Pa. Jan. 19, 2006) ("[T]he very nature of an unfulfilled threat means [the plaintiff] cannot prove that the [d]efendants' conduct impacted her current or future employment opportunities. . . .") This leaves the Court with the issue presented here: whether forcing Plaintiff to pay out-of-pocket for an otherwise free physical to avoid the threat of termination materializing constitutes a sufficient adverse employment action to meet the third prong. Ironically, Defendant's last Pennsylvania district court case answers this question in Plaintiff's favor.

Defendant cites to Leitch v. MVM, Inc. for its holding that ADEA claims based on "mere threats of termination will be dismissed for failure to state a claim" because threats alone do not result in a significant change in employment status."3 No. 03-cv-4344, 2004 U.S. Dist. LEXIS 14307, at *19-20 (E.D. Pa. July 21, 2004). The Leitch Court also held that "[a]ssuming . . . [plaintiffs] were required to pay for their own medical examinations in contravention of their employment contracts, this would certainly `inflict[] direct economic harm' in a way that would meet the standard of an adverse employment action." Id. (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). The court ultimately concluded that the defendant's motion to dismiss the ADEA claims would be denied with respect to those plaintiffs that claimed they were improperly required to pay for their own medical exams.

The Court agrees with Defendant that the majority of the case law, especially in this circuit, concludes that unrealized threats will not satisfy the third prong of the prima facie case for failure to accommodate, but the case law also recognizes situations in which threats are no longer unripe, unrealized, or stand-alone. See Leich, 2004 U.S. Dist. LEXIS 14307; Khan, 2005 U.S. Dist. LEXIS 1543; Bowles, 285 F. App'x 812. In some cases, threats directly affect an employee's "compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). That is the case here.

Plaintiff's allegations that Defendant threatened to discharge Plaintiff if he did not pay for a physical that would otherwise be free forces Plaintiff to choose between adverse employment actions. Leitch, 2004 U.S. Dist. LEXIS 14307, at *19-20 (requiring employees to pay for their own medical examinations in contravention of their employment contracts meets the standard for adverse employment action). The Court concludes that forcing an employee to choose between two adverse employment actions is itself an adverse employment action because, based on the facts here, Defendant has materially altered the terms, conditions, and privileges of Plaintiff's employment. As the Complaint alleges, Defendant has made continued employment contingent upon Plaintiff paying for a necessary physical that is free for other employees who do not request religious accommodations. To allow such an ultimatum to relieve the employer of liability for failing to accommodate as a matter of law is inconsistent with the plain language and purpose of Title VII. Fallon v. Mercy Catholic Med. Ctr., 877 F.3d 487, 490 (3d Cir. 2017) ("Title VII makes it an unlawful employment practice for an employer `to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion. . . .'" (emphasis added) (quoting 42 U.S.C. § 2000e-2(a)(1))). Accordingly, the Court recommends that Plaintiff plausibly states a claim for failure to accommodate and the Motion to Dismiss be denied.4 Defendant may reassert its arguments at summary judgment.

V. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss (ECF No. 8) filed by Defendant be DENIED.

In accordance with the Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule of Court 72.D.2, the parties are allowed fourteen (14) days from the date of service to file objections to this report and recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.