Rufe, District Judge.
Plaintiff sued his former employer, alleging employment discrimination and retaliation based on race and disability, as well as violations of the Family and Medical Leave Act ("FMLA"). Defendant moves to dismiss the Complaint for failure to state a claim. For the reasons discussed below, Defendant's motion will be granted with respect to Plaintiff's claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 1981, and the Pennsylvania Human Rights Act ("PHRA"), but denied with respect to Plaintiff's retaliation claim under the FMLA.
The Complaint alleges the following facts, which are assumed to be true for purposes of the Motion to Dismiss, unless otherwise stated. On July 15, 2013, Plaintiff began his employment with Defendant as a production welder. On April 8, 2015, Plaintiff filed an internal complaint of discrimination, harassment, and retaliation with Defendant's human resources department against his supervisors Daniel Gil, Eduardo (last name unknown), and Joseph Donohoe. Plaintiff alleges that instead of investigating his complaints of harassment and discrimination, his supervisor referred to Plaintiff as a trouble maker and threatened to terminate him.
On August 3, 2015, Plaintiff missed work due to back pain, which forced him to go to the emergency room. Shortly thereafter, Plaintiff notified Defendant's human resource representative of his medical condition and attached a doctor's note providing the diagnosis and reason for his absence. On September 15, 2015, Plaintiff was evaluated at the Einstein Medical Center where he was diagnosed with thoracic spine pain, thoracic disease, and lumbar disc disease with radiculopathy. On September 25, 2015, Plaintiff provided a note to Defendant, which specified accommodations Plaintiff needed in order to return to work. Plaintiff requested to be placed on light duty to limit the progression and severity of his medical condition, but no light duty work was available.
On September 28, 2015, Plaintiff requested short-term disability leave, effective through October 7, 2015, because Plaintiff's physician wanted him to take ten days to recuperate and continue treatment. On October 8, 2015, the day Plaintiff returned to work, he obtained a Certificate of Disability from his treating physician. Defendant informed Plaintiff that no light duty work was available for Plaintiff. Plaintiff, however, claimed that other individuals, such as his co-worker Mario, had previously been placed on light duty for long periods of time due to medical constraints. Because there was no light duty work available for him, and Defendant determined his condition was not work-related, Defendant informed Plaintiff that he was not permitted to return to work until
Defendant's human resources representative informed Plaintiff that he could either use paid time off, medical leave, or short-term disability leave, but that he could only use Family Medical Leave if he accepted an additional point on his attendance record. Because Plaintiff discovered that he already had two attendance points on his record, he elected to take short-term disability leave. On November 10, 2015, Plaintiff requested permission to return to work. Plaintiff informed Defendant of his doctor's recommendation that Plaintiff work the first shift, rather than his normal third shift, since this switch would better accommodate his health in light of his ongoing medical issues.
In December 2015, Plaintiff was informed that additional points were added to his attendance record. On December 31, 2015, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging discrimination under Title VII and the ADA. Plaintiff claimed that Defendant had added the attendance points to his record in retaliation for his request for a reasonable accommodation and request for medical leave. Plaintiff also claimed that Defendant added another attendance point to his record when he used paid time off in January 2016 to be treated by his orthopedic specialist and to go to the emergency room due to his ongoing medical condition.
In February 2016, Defendant denied Plaintiff's request for extended leave to visit his family in Vietnam, even though other similarly situated co-workers were granted leave to travel. In March 2016, Defendant denied Plaintiff's request for paid time off to attend medical appointments with his daughter in preparation for her surgery. Plaintiff's request for paid time off was only approved after he contacted a labor union representative, who then contacted Defendant's Chief Operating Officer. Additionally, Defendant approved Plaintiff's request for FMLA leave to attend to his daughter after her surgery from March 3, 2016 through April 22, 2016. Although Plaintiff worked a full shift the week prior to his approved FMLA leave, Defendant failed to pay him for that week. After Plaintiff filed a grievance with the Department of Labor on April 28, 2016, Defendant paid him for the week of work prior to his FMLA leave.
In June, Plaintiff again was experiencing pain due to his medical condition. Plaintiff then left a message on Defendant's employee call-out line, indicating that he was unable to work due to his medical condition and requested leave under the Family Medical Leave Act. On July 1, 2016, Defendant conditionally approved Plaintiff's request for leave under the FMLA, provided that Plaintiff produce an FMLA Medical Certification within fifteen days of the request. Plaintiff mailed the Defendant the requested documentation, but on August 1, 2016, Defendant sent Plaintiff a termination letter, stating that his medical certification documentation had never been received, that Plaintiff was terminated based on his "unacceptable attendance record," and that his leave was unauthorized and unexcused. On November 22, 2016, Plaintiff filed an EEOC charge of discrimination, retaliation and wrongful termination under the ADA. On July 21, 2017, Plaintiff received right-to-sue notices for both his December 31, 2015, and November 22, 2016, EEOC charges of discrimination.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" lacks enough
Plaintiff's allegations are not sufficient to state a claim under the ADA. To state a prima facie claim of disability discrimination under the ADA, Plaintiff must allege that: (1) he is disabled within the meaning of the ADA; (2) he can perform essential functions of his job with or without reasonable accommodation; and (3) he suffered an adverse employment action as a result of discrimination based on his disability.
Plaintiff has not adequately pleaded that he was disabled within the meaning of the ADA at the time he requested, and was denied, a light duty assignment to reasonably accommodate his medical condition. The ADA defines a qualifying disability as "a physical or mental impairment that substantially limits one or more [of the employee's] major life activities."
Plaintiff also has failed to plead his disability retaliation claim. To state a prima facie claim of disability retaliation under the ADA, Plaintiff must allege that: (1) he engaged in protected employee activity; (2) he suffered an adverse employment action; and (3) the adverse action was causally related to the protected activity.
Plaintiff sufficiently alleged the first element, that he requested an accommodation in accordance with a medical note from his treating physician, and the second element, that he was terminated from his employment on August 1, 2016.
Plaintiff has adequately pled a prima facie claim for FMLA retaliation.
In Count IV of his Complaint, Plaintiff alleges that he was discriminated against because he is a Vietnamese-American.
Here, Plaintiff has failed to provide any facts supporting his allegations that he was discriminated against because of his race, that Defendant treated any similarly situated individuals more favorably than Plaintiff, or that Defendant's decision to terminate him was based on his race. Plaintiff alleges only that his request for time off to
Plaintiff also alleges that he was unlawfully retaliated against under § 1981 for his opposition to Defendant's unlawful employment practices.
In Count V of his Complaint, Plaintiff alleges that he faced discrimination due to his race, color, and national origin in violation of PHRA § 955(a).
In Count VI of his Complaint, Plaintiff alleges that he was discharged in retaliation for opposing unlawful employment practices of Defendant, in violation of PHRA § 955(d).
In Count VII of his Complaint, Plaintiff alleges that Defendant aided, abetted, incited, compelled, or coerced discriminatory conduct in violation of PHRA § 955(e).
For the foregoing reasons, Defendant's motion will be granted with respect to Plaintiff's claims under the ADA, § 1981, and the PHRA, but denied with respect to Plaintiff's retaliation claim under the FMLA. However, as it is possible that Plaintiff could state claims under the ADA, § 1981, and the PHRA, he will be granted leave to file an amended complaint.
An appropriate order will be entered.
43 Pa. Cons. Stat. § 955 (a).
