Opinion
Civil Action 3:22-CV-00882
06-09-2023
LYNN MCALLISTER Plaintiff, v. REVOLUTIONARY HOME HEALTH, INC., et al., Defendants.
MANNION, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, CHIEF UNITED STATES MAGISTRATE JUDGE
Before the Court is a motion to dismiss filed by Defendant Revolutionary Home Health, Inc. on October 27, 2022. (Doc. 10). Plaintiff Lynn McAllister (“McAllister”) initiated this action by filing a complaint against Defendants Revolutionary Home Health, Inc. and Revolutionary Home Health Svc. LLC (“Revolutionary”) on June 6, 2022, alleging employment discrimination pursuant to the Americans with Disabilities Act (“ADA”), the Pennsylvania Human Relations Act (“PHRA”), and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). (Doc. 1). On October 12, 2022, McAllister filed the operative amended complaint. (Doc. 8). For the following reasons, it is respectfully recommended that the motion to dismiss be denied in part and granted in part.
I. Background and Procedural History
In March of 2020, McAllister was employed by Revolutionary Home Health for about one year as a scheduling coordinator. (Doc. 8, ¶ 13). McAllister alleges that Revolutionary permitted its employees, including Ms. McAllister, to work from home, and that Revolutionary “was required by law to close its physical office.” (Doc. 8, ¶¶ 21-22). At all relevant times, McAllister had two minor daughters, both with asthma and other nondisclosed disabilities. (Doc. 8, ¶¶ 15-16). McAllister alleges that asthma impairs her daughter's ability to breathe, work, attend school and resist respiratory disease. (Doc. 8, ¶ 17). McAllister likewise alleges that she also has asthma, and it impairs her ability to “breathe, work, and resist respiratory disease.” (Doc. 8, ¶¶ 18-19). On March 21, 2020, McAllister claims she requested she be permitted to continue to work from home due to “her disability, pursuant to her physician's advice, and because her daughters' schools were closed.” (Doc. 8, ¶ 26). McAllister claims she requested permission to work from home because of her asthma, her daughter's asthma, and her daughters' “increased susceptibility to COVID-19.” (Doc. 8, ¶ 30).
On May 21, 2020, McAllister allegedly submitted a written request from her physician stating, “McAllister required the reasonable accommodation of working from home for an additional (6) six weeks due to her and her children's disabilities.” (Doc. 8, ¶ 32). McAllister alleges that on May 29, 2020, Revolutionary instructed McAllister that she was expected to return to in-person work on or before June 4, 2020, or her employment would be terminated. (Doc. 8, ¶ 33). She claims Revolutionary did not explain its refusal to grant McAllister's accommodation request, did not engage in discussion of the accommodation request, or otherwise engage in the interactive process regarding her request. (Doc. 8, ¶ 34). McAllister avers that she worked remotely without issue from approximately March 21, 2020, until June 5, 2020. (Doc. 8, ¶ 35). McAllister claims she repeatedly requested Revolutionary provide her with leave under the EFMLEA, but it refused to provide leave under the EFMLEA or provide any related application paperwork or notices to her. (Doc. 8, ¶¶ 37-38). Finally, McAllister alleges she was “unable and unwilling” to return to in-person work on June 4, 2020. (Doc. 8, ¶ 39).
On June 5, 2020, Revolutionary terminated McAllister's employment. (Doc. 8, ¶ 40). On November 27, 2020, McAllister filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), dually filed with the Pennsylvania Human Relations Commission (“PHRC”), asserting that Revolutionary violated her rights under the ADA and PHRA. (Doc. 8, ¶ 4). EEOC issued a “Right to Sue” notice on May 9, 2022. (Doc. 8, ¶ 5).
On June 6, 2022, McAllister initiated this lawsuit by filing a complaint against Revolutionary, alleging failure to accommodate and unlawful retaliation in violation of the ADA and PHRA. (Doc. 1). On September 16, 2022, Revolutionary filed a motion to dismiss for failure to state a claim. (Doc. 4). On October 12, 2022, McCallister filed the amended complaint. (Doc. 8). In the amended complaint, McAllister asserts the following claims: Failure to Accommodate under the ADA (Count One); Failure to Accommodate under the PHRA (Count Two); ADA Retaliation (Count Three); PHRA Retaliation (Count Four); and EFMLEA Claims (Count Five). (Doc. 8, at 7-10). As relief, McAllister requests declaratory judgment that Revolutionary's action, policies, practices, and procedures complained of have violated her rights, and an award of compensatory and punitive damages to be determined at trial. (Doc. 8, at 10-11).
On October 27, 2022, Revolutionary filed a renewed motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 10). The motion to dismiss has been fully briefed and is now ripe for disposition. (Doc. 10; Doc. 11; Doc. 12).
II. Standard of Law
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Thus, courts “need not credit a complaint's ‘bald assertions' or ‘legal conclusions....'” Morse v. LowerMerion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). The court also need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. Cal. St. Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to a plausible claim for relief. “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.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). The plausibility determination is context-specific and does not impose a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
III. Discussion
Revolutionary seeks to dismiss McAllister's amended complaint under Rule 12(b)(6) - for failure to state a claim - of the Federal Rules of Civil Procedure. (Doc. 10). Specifically, Revolutionary argues that McAllister's claims related to her and her children's asthma under the ADA and PHRA fail to state a claim upon which relief may be granted and McAllister has not stated any facts from which it can be plausibly concluded that Revolutionary violated the EFMLEA. (Doc. 11, at 3-8). Revolutionary submits that McAllister should not be granted leave to amend because “[McAllister] has [a]mended her complaint once, but has failed to state a cause of action, as the facts do not support causes of action under the ADA, PHRA or the EFMLEA.” (Doc. 11, at 9). In opposition, McAllister contends the motion to dismiss should be denied in its entirety because the amended complaint meets the pleadings standard under Rule 12(b)(6). (Doc. 12, at 2). Alternatively, in the event the Court finds her complaint is insufficient, McAllister requests leave to amend the complaint again. (Doc. 12, at 2).
As Revolutionary points out, it is unclear whether McAllister is trying to establish claims based upon her children's alleged asthma. (Doc. 11, at 5). While counts one and Two of the amended complaint do not specifically mention an accommodation request related to her children's alleged disability, the facts of McAllister's amended complaint do allege both her daughters have asthma and that their asthma limits their ability to “breathe, work, attend school, and resist respiratory disease.” (Doc. 8, ¶¶ 16-17). As noted infra, the ADA prohibits “discriminat[ion] against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added). Likewise, a disability is defined under the ADA as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(1) (emphasis added). Revolutionary correctly states that “[n]o provision of the ADA provides that an accommodation request can be based upon the disability of a family member.” (Doc. 11, at 5). Accordingly, to the extent that McAllister sets forth claims related to her children's disabilities under the ADA and PHRA, it is respectfully recommended that Revolutionary's motion to dismiss be GRANTED and that such claims be DISMISSED WITH PREJUDICE as they are not cognizable under the law.
A. Failure-to-Accommodate Claims under the ADA and PHRA
In Counts One and Two of the amended complaint, McAllister asserts claims for “Failure to Accommodate” under the ADA and PHRA. (Doc. 8, at 7-9). Mccallister alleges that, by terminating her employment, Revolutionary discriminated against her based on her disability, asthma, in violation of the ADA and PHRA. (Doc. 8, at 7-9). Revolutionary argues that McAllister's claim for disability based on her asthma fails because her accommodation request was not for her disability, but rather for COVID-19, which is not actionable under the ADA. (Doc. 11, at 4-5). Revolutionary claims the only health-related notice of record is a doctor's note dated May 21, 2020, that was forwarded to Revolutionary on May 26, 2020. (Doc. 11, at 4; Doc. 11-1, at 2). Revolutionary contends “[i]t is clear from this note that [McAllister]'s request to work from home was based upon the COVID-19 pandemic and an alleged at-risk status based upon Asthma.” (Doc. 11, at 4). Thus, Revolutionary submits McAllister's health concern -- that the COVID-19 pandemic makes her own and her daughters' asthma a threat to her health -- is not actionable under the ADA. (Doc. 11, at 5).
As a general matter, the undersigned need not differentiate between McAllister's disability discrimination claims because they are “closely related;” resolution of the ADA claims effectively resolves the PHRA claims. See Niven-Himes v. Pa. Hosp. of Univ. of Pa. Health Sys., 2021 WL 5298982, at *2 n.1 (E.D. Pa. Nov. 15, 2021) (comparing disability discrimination claims under the ADA and PHRA, collecting cases); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002) (comparing anti-retaliation claims under the ADA and PHRA). Therefore, Counts One, Two, Three, and Four will be addressed together as one claim herein.
Under the ADA, an employer may not “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADA's prohibition against discrimination includes “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilitates, privileges, advantages, or accommodations to individuals with disabilities.” 42 U.S.C. § 12182(b)(2)(A)(ii). Once a qualified individual with a disability has requested an accommodation, the employer has a good faith duty to engage in the “interactive process” with the employee to determine whether the employee has a disability and whether a reasonable accommodation exists. Williams v. Phil. Hous. Auth. Police Dep't, 380 F.3d 751, 772 (3d Cir. 2004). To support a claim for a failure to accommodate under the ADA, a plaintiff must establish: “(1) he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have been reasonably accommodated.” Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir. 2017); see Moore v. CVS Rx Servs., Inc., 142 F.Supp.3d 321, 335 (M.D. Pa. 2015).
In order to establish a Failure-to-Accommodate claim, McAllister must first demonstrate that she is disabled and her employer knew it. A “disability” with respect to an individual is defined in the ADA as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). In order to be “regarded as having such an impairment,” the plaintiff must have been subjected to an adverse employment action because of an actual or perceived physical or mental impairment, regardless of whether the impairment or perceived impairment actually limits any of the plaintiff's major life activities. See 42 U.S.C. § 12102(1)(3)(A). The term “major life activities” includes, inter alia, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). The implementing regulations of the ADA Amendments Act (“ADAAA”) of 2008 make clear that:
The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA. Consistent with the Amendment Act's purpose of reinstating a broad scope of protection under the ADA, the definition of “disability” in this part shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.29 CFR § 1630.1(c)(4).
“An individual is substantially limited in performing a major life activity if that individual is unable to pursue that major life activity in a comparable manner ‘to most people in the general population.'” Arrington v. Nat'l R.R. Passenger Corp., 721 Fed.Appx. 151, 154 (3d Cir. 2018) (quoting 29 C.F.R. § 1630.2(j)(1)(ii)); see also 29 C.F.R. § 1630.2(j)(1)(iii) (“The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment ‘substantially limits' a major life activity should not demand extensive analysis.”). “The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.” 29 CFR § 1630.2(j)(1)(iv).
McAllister's asthma condition could be considered a physical impairment that impacts her respiratory system. The alleged major life activity that is impaired by her asthma condition is her ability to breathe. Other cases that have considered whether asthma constitutes a disability under the ADA have found that such a plaintiff could qualify as a disabled individual where the condition severely impairs “an individual's respiratory capacity as compared to an average person in the general population.” Adams v. Pennsylvania, No. 1:06-CV-2154, 2009 WL 2707601, at *5 (M.D. Pa. Aug. 25, 2009); see also Davis v. Davis Auto, Inc., No. 10-CV-03105, 2011 WL 5902220, at *6 (E.D. Pa. Nov. 22, 2011). “While there is no bright line rule for when the plaintiff's ability to breathe is more severely impaired than the average person, ADA protections are not usually triggered unless the ailments are so debilitating that they limit the ability to hold a conversation or move about freely even when the plaintiff takes available, mitigating medications.” Adams, 2009 WL 2707601, at *5 (citing Gallagher v. Sunrise Assisted Living of Haverford, 268 F.Supp.2d 436, 441 (E.D. Pa. 2003)). Third Circuit courts have allowed plaintiffs to surmount summary judgment where they have been able to demonstrate that they suffer from a long-term breathing disorder that requires “continued vigilance to prevent debilitating attacks.” Adams, 2009 WL 2707601, at *6. In contrast, “[i]ntermittent breathing problems or those that are well-controlled with medication generally do not constitute an impairment under the ADA.” Adams, 2009 WL 2707601, at *6.
Here, McAllister pleads that she has asthma, which substantially impairs her ability to breathe, work, and resist respiratory disease. (Doc. 8, ¶¶ 18-19). McAllister claims that on May 21, 2020, she provided Revolutionary with a written request from her physician stating that McAllister required the reasonable accommodation of working from home for an additional six weeks due to her and her children's disability. (Doc. 8, ¶ 32). However, McAllister does not attach the physician's note or any other documentation to establish or detail the severity of her asthma condition, any medications she may take to control the condition, or any symptoms that she experiences during a flare-up. Indeed, McAllister's complaint seems to suggest that the mere existence of her asthma diagnosis is sufficient to meet the ADA's definition of disability. Nevertheless, given the interpretive guidance in the ADAAA, the undersigned finds that, though the pleadings lack specificity, McAllister has sufficiently pleaded that her asthma condition qualifies her as a disabled person to satisfy the first element of her prima facie case. While not explicitly stated in McAllister's amended complaint, it can be reasonably inferred that asthma impacts the major life activity of breathing, especially during an asthma attack. See Bertig v. Julia Ribaudo Healthcare Grp., LLC, No. 3:15CV2224, 2016 WL 3683439, at *4 (M.D. Pa. July 12, 2016) (“Regarding plaintiff's asthma, her condition limits her ability to breathe, a recognized major life activity.”); see also (Doc. 8, ¶ 19) (noting that “[a]sthma substantial impairs Ms. McAllister's ability to, inter alia, breathe, work, and resist respiratory disease.”). Therefore, McAllister's asthma is considered a disability under the ADA. In addition, McAllister alleges, and Revolutionary does not appear to deny, that Revolutionary was aware at all relevant times of her asthma. (Doc. 8, ¶ 20). Therefore, the first element of a failure-to-accommodate claim is plausible for purposes of the instant motion to dismiss.
Next, the undersigned turns its analysis to whether McAllister requested a reasonable accommodation of her disability. The ADA states that “reasonable accommodation” includes “making existing facilities used by employees readily accessible to and usable by individuals with disabilities” and “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(A)-(B).
Again, McAllister claims that she provided Revolutionary with a written request from her physician stating that McAllister required the reasonable accommodation of working from home for an additional six weeks due to her and her children's disability. (Doc. 8, ¶ 32). McAllister pleads that she “requested the reasonable accommodation of continuing to work remotely due to her disability, asthma,” and that she “supported her request with a written letter from her physician.” (Doc. 8, ¶¶ 43-44). For purposes of the present motion to dismiss, McAllister sufficiently pleads that she requested an accommodation to meet the second element of the Capps test.
Third, McAllister must plead that Revolutionary did not make a good-faith effort to assist her asthma condition. McAllister alleges that, after submitting an accommodation request to work from home, Revolutionary instructed McAllister that she was expected to return to in-person work on or before June 4, 2020, or her employment would be terminated. (Doc. 8, ¶ 33). McAllister claims “Revolutionary ignored and refused the accommodation request and demanded that Ms. McAllister return to work at the office, amid unsafe work conditions, or be fired.” (Doc. 8, ¶ 46). In addition, she contends “Revolutionary offered no alternative accommodation, no discussion, and no involvement in any interactive process.” (Doc. 8, ¶ 47). At this stage, McAllister's allegations sufficiently satisfy the pleading standard for the third element of the Capps test for her asthma condition.
Finally, McAllister's amended complaint must demonstrate that she could have been easily accommodated. McAllister contends Revolutionary denied her reasonable accommodation request and “did not explain its refusal to grant Ms. McAllister's accommodation request, nor did Revolutionary engage in any discussion or interactive process regarding Ms. McAllister's request.” (Doc. 8, ¶ 34). McAllister alleges that she “worked remotely, successfully and without issue, from approximately March 21, 2020 until June 5, 2020, the date that her employment was terminated.” (Doc. 8, ¶ 35). Therefore, for the purposes of the motion to dismiss, McAllister sufficiently pleads the fourth element of the Capps test for her asthma condition.
Accordingly, it is recommended that Revolutionary's motion to dismiss be denied with regard to McAllister's ADA and PHRA Failure-to-Accommodate claims. See Emerson v. Stern & Eisenberg, P.C., No. CV 21-3096, 2022 WL 10208548, at *7 (E.D. Pa. Oct. 17, 2022) (denying motion to dismiss ADA and PHRA claims where plaintiff pled disability due to hypertension, she requested reasonable accommodation to work from home, and she was terminated four days later); Mundy v. City of Pittsburgh, No. 2: 22-CV-31, 2022 WL 17851629, at *9 (W.D. Pa. Dec. 22, 2022) (denying motion to dismiss where plaintiff alleged disability due to asthma, she requested accommodation from employer, she was terminated after employer failed to make a good effort to assist her asthma conditions and she could have been easily accommodated).
B. Retaliation Claims under the ADA and PHRA
In Counts Three and Four of the amended complaint, McAllister sets forth unlawful retaliation claims pursuant to the ADA and PHRA. (Doc. 8, at 8-9). McAllister claims that after she made a reasonable accommodation request for her disability, asthma, “Revolutionary retaliated against Ms. McAllister by, inter alia, demanding that Ms. McAllister return to working in the office immediately after receiving a physicians letter requesting that she be permitted to work from home for an additional six (6) months, and by terminating her employment.” (Doc. 8, ¶¶ 53, 55).
At the onset, the Third Circuit refers to retaliation claims under both the ADA and PHRA in the singular because “analysis of an ADA claim applies equally to a PHRA claim.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999) (citing Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)); see Connelly v. Lane Constr. Corp., 809 F.3d 780, 791 n.9 (3d Cir. 2016). “To establish a prima facie case of retaliation under the ADA, a plaintiff must show: (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action.” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (citations omitted). “[U]nlike a general ADA discrimination claim, an ADA retaliation claim does not require that the plaintiff demonstrate a disability within the meaning of the ADA, but only that the plaintiff has a reasonable, good faith belief that [he] was entitled to request the reasonable accommodation [he] requested.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 188 (3d Cir. 2010) (internal citation omitted). “Prohibited discrimination under the ADA includes retaliation against an employee for requesting an accommodation.” Sulima, 602 F.3d at 188. ADA retaliation claims are analyzed under the Title VII retaliation claim framework. Krouse, 126 F.3d at 500. A plaintiff claiming retaliation must show that a reasonable employee would have found the alleged retaliatory actions “materially adverse” in that they “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) (quoting Burlington N. & Santa Fe Rail. Co. v. White, 548 U.S. 53, 54 (2006)).
Here, McAllister has sufficiently pleaded facts suggesting that she engaged in protected activity when she requested an extension of leave to work from home. There is no indication that the request was made in bad faith. McAllister claims that Revolutionary's May 29, 2020, statement denying her request and directing her to return to work or be terminated, and her June 5, 2020, termination were adverse employment actions that occurred as a result of her engaging in protected activities of requesting accommodation for her disability, asthma. (Doc. 8, ¶¶ 33-40). Termination from work can constitute adverse employment consequences for the purposes of an ADA and PHRA retaliation claim. See Sulima, 602 F.3d at 188 (“Prohibited discrimination under the ADA includes retaliation against an employee for requesting an accommodation.”); Mundy, 2022 WL 17851629, at *10 (“Being suspended from work, signing a Last Chance Agreement, and eventual termination from work can constitute adverse employment consequences for the purposes of an ADA Retaliation claim.”); see also Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (noting that “an unusually suggestive temporal proximity between the request for accommodation and allegedly retaliatory action” can establish requisite causal connection). Revolutionary argues that McAllister was not terminated for requesting additional medical leave, but such a factual determination is not proper at this stage. For now, McAllister has sufficiently pleaded a claim for retaliation.
Accordingly, it is recommended that Revolutionary's motion to dismiss McAllister's retaliation claims be denied.
C. EFMLEA Claims
In Count Five of the amended complaint, McAllister brings an interference claim under the EFMLEA. (Doc. 8, at 9-10). McAllister alleges that she is not a “health care provider” and was eligible for EFMLEA benefits, but Revolutionary interfered with her rights under the EFMLEA when it denied her request for leave to work from home due to her child care obligations. (Doc. 8, ¶¶ 61, 63). In addition, McAllister contends Revolutionary retaliated against her for requesting EFMLEA leave by terminating her employment, and Revolutionary's violation of the EFMLEA was willful and intentional. (Doc. 8, ¶¶ 65-67).
Congress passed the Families First Coronavirus Response Act (“FFCRA”) in March 2020, as the COVID-19 pandemic began to take hold in the United States. Pub. L. No. 116127, 134 Stat. 178 (Mar. 18, 2020). “Broadly speaking . . . the FFCRA obligates employers to offer sick leave and emergency family leave to employees who are unable to work because of the pandemic.” New York v. U.S. Dep't of Labor, 477 F.Supp.3d 1, 5 (S.D.N.Y. 2020). “The purpose of the FFCRA is to provide relief to American workers and to promote public health.” Jones v. E. Airlines, LLC, Civil Action No. 20-1927, 2021 WL 2456650, at *4 (E.D. Pa. June 16, 2021) (quotation marks omitted); see also Gracia v. Law Officers of Alexander E. Borell, P.A., 535 F.Supp.3d 1268, 1270-71 (M.D. Fla. Apr. 19, 2021) (explaining that the “broad purpose” of one portion of the FFCRA is to “obviate the pressure on employees ‘to choose between their paycheck and their health' ” (quoting 166 Cong. Rec. H.1675-09, H1689 (daily ed. Mar. 13, 2020) (statement of Rep. Scott))).
Relevant here is Division C, the Emergency Family and Medical Leave Expansion Act. The EFMLEA expanded entitlement to leave under the Family Medical Leave Act (“FMLA”), entitling “an eligible employee . . . to a total of 12 workweeks of leave during any 12-month period . . . because of a qualifying need related to a public health emergency in accordance with section 2620 of this title.” 29 U.S.C. § 2612(a)(1)(F). While the first ten days for which an employee takes emergency family leave may be unpaid, after ten days, employees are entitled to job-protected paid emergency family leave at two-thirds of their regular wages, up to a statutory cap, for the remaining ten weeks of the FMLA period. See FFCRA § 3102(b) (adding FMLA §§ 110(b)(1)(A)-110(b)(2)). “The FFCRA provides that employers will receive a tax credit ‘equal to 100 percent of the qualified family leave wages paid by such employer.'” Jones, 2021 WL 2456650, at *4 (citing FFCRA § 7003(a)).
1. Interference Claim
“An FMLA interference claim arises under 29 U.S.C. § 2615(a)(1), which makes it ‘unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under' the FMLA.” Capps v. Mondelez Glob., LLC, 147 F.Supp.3d 327, 334 (E.D. Pa. 2015) (quoting 29 U.S.C. § 2615(a)(1)). To prove a claim of FMLA interference, McAllister must show that: (1) she “was an eligible employee under the FMLA,” (2) Revolutionary was “an employer subject to the FMLA's requirements,” (3) she “was entitled to FMLA leave,” (4) she “gave notice to the defendant of his or her intention to take FMLA leave,” and (5) she was “denied benefits to which . . . she was entitled under the FMLA.” Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014). “An interference action is not about discrimination[;] it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.” Capps, 147 F.Supp.3d at 334 (quoting Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005)).
i. Eligibility
Section 2620 of the EFMLEA broadens the definition of “eligible employee,” to include any “employee who has been employed for at least 30 calendar days by the employer,” and it defines “qualifying need related to a public health emergency” to mean “the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.” 29 U.S.C. § 2620(a)(2)(A). However, there is an exception for “employees who are health care providers or emergency responders ....” 85 Fed.Reg. 19326-01. The FFCRA specifies that “health care provider” has the same definition as in the FMLA. FFCRA § 5110(4) (citing 29 U.S.C. § 2611). The FMLA defines “health care provider” as: “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.” 29 U.S.C. § 2611.
The FFCRA also includes a provision that allows the Secretary of Labor to issue regulations “to exclude certain health care providers and emergency responders from the definition of employee under section 5110(1) including by allowing the employer of such health care providers and emergency responders to opt out.” FFCRA § 5111. Pursuant to this portion of the law, the Department of Labor issued a Final Rule in April 2020 which defines “health care provider” for the purposes of the FFCRA as follows:
anyone employed at any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.85 Fed.Reg. 19,326, 19,351 (§ 826.25) (Apr. 6, 2020) (“April Rule”).
On August 3, 2020, Judge Oetken of the Southern District of New York struck down this definition in a challenge brought by the State of New York under the Administrative Procedure Act, finding that it was not consistent with the FFCRA. See New York, 477 F.Supp.3d at 15. Thereafter, the Department of Labor revised the definition of health care provider, and the new Rule took effect on September 16, 2020. See 29 C.F.R. § 826.30 (“September Rule”).
The parties dispute which definition of “health care provider” in the FFCRA is the appropriate definition to apply here. Revolutionary argues that the definition in the April Rule applies because it was in effect at the time McAllister was fired. (Doc. 11, at 8). Revolutionary argues that McAllister falls within this definition and is therefore exempt from the EFMLEA. (Doc. 11, at 8). In opposition, McAllister argues that the Court must apply the definition in the FFCRA because the April Rule has been invalidated. (Doc. 12, at 7).
The undersigned agrees that the definition of “health care provider” in the FFCRA is the appropriate definition to apply here. In striking down the April Rule, Judge Oetken provided a detailed analysis of why the definition of the April Rule was “unambiguously foreclose[d]” by the text of the FFCRA. New York, 477 F.Supp.3d at 13. In doing so, the court explained that the definition in the April Rule “hinges entirely on the identity of the employer” and “includes employees whose roles bear no nexus whatsoever to the provision of healthcare services, except the identity of their employers, and who are not even arguably necessary or relevant to the healthcare system's vitality.” New York, 477 F.Supp.3d at 14-15. The Department of Labor conceded that even “an English professor, librarian, or cafeteria manager at a university with a medical school would all be ‘health care providers' under the Rule.” New York, 477 F.Supp.3d at 14.
That the April Rule was in place at the time of McAllister's firing is irrelevant when the April Rule itself was not lawfully promulgated. See Payne v. Woods Servs., Inc., 520 F.Supp.3d 670, 677 (E.D. Pa. 2021). Furthermore, because the September Rule was not yet in effect at the time of McAllister's firing, and it does not have a retroactive application, the definition in the FFCRA itself is the one that the Court should apply. As noted above, the FFCRA definition includes: “(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or (B) any other person determined by the Secretary to be capable of providing health care services.” 29 U.S.C. § 2611. “Any other person capable of providing health care services” includes only specific professions such as podiatrists, dentists, and nurse practitioners. 29 C.F.R. § 825.125. As a “Scheduling Coordinator,” McAllister does not meet this definition. Therefore, she is not a “health care provider” and is not exempt from the provisions of the FFCRA.
ii. Notice
A reasonable juror viewing all the evidence in the light most favorable to Hartzell could find that he gave adequate notice of his need for EFMLEA leave. See Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 303 (3d Cir. 2012) (explaining that the “critical test” for notice is “not whether the employee gave every necessary detail to determine if the FMLA applies, but ‘how the information conveyed to the employer is reasonably interpreted,'” and “[h]ow the employee's notice is reasonably interpreted is generally a question of fact, not law” (quoting Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007)); see also Lichtenstein, 691 F.3d at 307 (“A trier of fact considering” the question of notice is “entitled to consider the totality of the circumstances ....” (question marks omitted)); Sarnowski, 510 F.3d at 402 (“In providing notice, the employee need not use any magic words. The critical question is how the information conveyed to the employer is reasonably interpreted. An employee who does not cite to the FMLA or provide the exact dates or duration of the leave requested nonetheless may have provided his employer with reasonably adequate information under the circumstances to understand that the employee seeks leave under the FMLA.”).
McAllister claims she requested that she be permitted to continue to work from home due to her disability, asthma, pursuant to her physician's advice, and because her daughters' schools were closed due to COVID-19. (Doc. 8, ¶ 26). That is sufficient. See Payne v. Wood Servs., Inc., 520 F.Supp.3d 670, 675 (E.D. Pa. 2021) (“When ‘giving notice of the need for FMLA leave,' the employee must ‘state a qualifying reason for the needed leave'” such that the employer can “‘determine whether the leave qualifies under the Act.'” (quoting 29 C.F.R. § 825.301)); see also Lichtenstein, 691 F.3d at 303 (“As we have previously noted, this is not a formalistic or stringent standard.”); cf. Sarnowski, 510 F.3d at 403 (“Indeed, where courts have found notice to be deficient, it has been because the employee failed to convey the reason for needing leave.”). Although Revolutionary correctly points out that McAllister does not provide details as to when she requested permission to work from home or where her children attended school, the undersigned finds that at this stage in the litigation, the complaint sufficiently pleads that McAllister gave notice.
iii. Denial of Benefits
“In order to assert a claim of interference, an employee must show that he was entitled to benefits under the FMLA and that his employer illegitimately prevented him from obtaining those benefits.” Capps, 147 F.Supp.3d at 335 (quoting Sarnowski, 510 F.3d at 401)); see Wright v. Shore Memorial Hosp., Civil No. 11-5583 (JBS/AMD), 2013 WL 6080072, at *7 (D.N.J. Nov. 19, 2013) (explaining that “Courts in this Circuit have held that if [the] employers' actions would ‘chill' or ‘inhibit' the employees from exercising FMLA rights, a claim for interference may arise” and noting that a “jury could reasonably find that Defendant misinformed [the plaintiff] that she had no FMLA eligibility after February 2011 . . . and that such misinformation was interference with her FMLA rights”); Rashid v. Sovereign Bancorp, Inc., Civil Action No. 07-1056, 2008 WL 2485450, at *6 (E.D. Pa. June 19, 2008) (“Interfering with the exercise of an employee's rights would include, for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” (quotation marks omitted)).
Moving to dismiss Count Five, Revolutionary argues that McAllister “was not eligible for EFMLEA leave at any time from April 2, 2020, to June 4, 2020, as she was teleworking.” (Doc. 11, at 7-8). In the complaint, McAllister pleads that she made “repeated requests that Revolutionary provide the benefits and protections required under the EFMLEA,” however, Revolutionary refused to continue to permit her to telework. (Doc. 8, ¶¶ 37-38). At this stage, the undersigned finds that McAllister has sufficiently pled that Revolutionary denied her benefits to which she was entitled. See Erdman v. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009) (holding that “firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee”); cf. Simone v. Harborview Rehabilition & Care Ctr. at Doylestown, LLC, No. CV 203551, 2021 WL 2291341, at *5 (E.D. Pa. June 4, 2021) (denying summary judgment in FFCRA interference case because “there is a question of material fact regarding whether [the employee] was fired or quit” during a call with his supervisor where the employee testified that he told his supervisor he could not “keep working without proper PPE” and the supervisor testified that he interpreted the conversation as the employee resigning).
In sum, disputes of fact preclude the dismissal of McAllister's EFMLEA interference claim at this stage. Therefore, it is recommended that Revolutionary's motion to dismiss the EFMLEA claim be denied.
2. Retaliation Claim
Next, the undersigned addresses McAllister's claim for retaliation. “An FMLA retaliation claim arises under 29 U.S.C. § 2615(a)(2), which makes it ‘unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful' by the FMLA.” Capps, 147 F.Supp.3d at 334 (quoting 29 U.S.C. § 2615(a)(2)). An FMLA retaliation claim, unlike an interference claim, “requires proof of [the defendant's] retaliatory intent, and is therefore analyzed through the lens of employment discrimination law.” Capps, 147 F.Supp.3d at 336. “Accordingly, a claim based on circumstantial evidence ... is assessed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green ....” Capps, 147 F.Supp.3d at 336. At the first step of that framework, McAllister must put forth a prima facie case of FMLA retaliation by showing “that ‘(1) [s]he invoked h[er] right to FMLA-qualifying leave, (2) [s]he suffered an adverse employment decision, and (3) the adverse action was causally related to h[er] invocation of rights.'” Ross, 755 F.3d at 193 (quoting Lichtenstein, 691 F.3d at 302) (alterations adopted).
Beginning with the first element, the undersigned finds McAllister invoked her right to FMLA-qualifying leave for all the reasons mentioned in connection with her interference claim-she asked for leave to care for her children who were home because their schools were closed for the pandemic. See Grosso v. UPMC, 857 F.Supp.2d 517, 542 (W.D. Pa. 2012) (“The Court of Appeals for the Third Circuit does not require that an employee actually take FMLA leave; an ‘invocation of FMLA rights' is sufficient. In order to invoke FMLA rights, the employee must give the employer adequate notice of his or her need for FMLA leave.” (citations omitted)). As for the second element, the undersigned has already found that McAllister has adequately pled adverse employment action by asserting that Revolutionary terminated her employment as a result of her request to continue teleworking. See Erdman, 582 F.3d at 509 (holding that “firing an employee for a valid request for FMLA leave may constitute interference with the employee's FMLA rights as well as retaliation against the employee”). Finally, the undersigned has also concluded that McAllister's complaint sufficiently alleges at this stage that the termination of her employment was causally related to her request to telework. Therefore, because McAllister has stated a prima facie claim of retaliation and Revolutionary has not put forth a legitimate, non-discriminatory reason for terminating her, dismissing the EFMLEA retaliation claim would be inappropriate.
IV. Recommendation
For the foregoing reasons, it is respectfully recommended that Revolutionary's motion to dismiss be DENIED IN PART and GRANTED IN PART. (Doc. 10). To the extent that McAllister sets forth claims related to her children's disabilities pursuant to the ADA and PHRA, such claims should be DISMISSED WITH PREJUDICE as they are not cognizable under the law. McAllister's remaining claims under the ADA, PHRA, and EFMLEA should not be dismissed at this stage.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 9, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.