LOWENSTEIN v. CATHOLIC HEALTH EAST et al
Filing
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MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 10/26/2011. 10/27/2011 ENTERED AND COPIES E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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SARAH LOWENSTEIN,
Plaintiff,
v.
CATHOLIC HEALTH EAST, ST. MARY
MEDICAL CENTER and CLAIRE
SHANKS,
Defendants.
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CIVIL ACTION
NO. 11-4689
DuBOIS, J.
October 26, 2011
MEMORANDUM
I. INTRODUCTION
In this employment discrimination action, plaintiff Sarah Lowenstein alleges that
defendants unlawfully denied her medical leave and discriminated against her based on her
medical condition. Presently before the Court is defendants’ Motion to Dismiss. For the reasons
that follow, the Court grants the motion in part and denies it in part.
II. BACKGROUND1
Defendant St. Mary Medical Center (“SMMC”) is a Pennsylvania corporation. (Compl.
¶ 3.) Catholic Health East (“CHE”), also a defendant, is SMMC’s parent company. See
Regional Health Corporations, Catholic Health East, http://www.che.org/regional/ (listing
SMMC as a Regional Health Corporation and explaining that each Regional Health Corporation
1
As required on a motion to dismiss, the Court takes all plausible factual allegations
contained in plaintiff’s complaint to be true.
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“has CHE as its sole member”).
SMMC hired plaintiff Sarah Lowenstein (“Lowenstein”) as a “staff or pool [p]harmacist”
in April 2009. (Compl. ¶ 19.) Shortly thereafter, plaintiff informed defendant Claire Shanks
(“Shanks”), a benefits manager in SMMC’s human resources department, that she had “an
autoimmune disorder with associated morbidities” that would sometimes require her to miss
work. (Id. ¶ 24.) Plaintiff requested a “reasonable accommodation for absences related to her
medical conditions.” (Id. ¶ 25.) Shanks told plaintiff she would “take care of it” as long as
plaintiff notified her when she needed to miss work and provided a doctor’s note when she
returned. (Id. ¶¶ 25-26.) In August 2009, plaintiff submitted a Family and Medical Leave Act
(“FMLA”) application, which SMMC provided to her, but it was denied because she had not
worked at SMMC long enough. (Id. ¶¶ 28-29.)
Plaintiff alleges that, despite Shanks’s promise to “take care of” the issue, Shanks either
rebuffed or ignored her each time she sought approval for illness-related absences. (Id. ¶¶ 2738.) Once, Shanks simply did not return plaintiff’s phone calls about the matter. (Id. ¶ 35.) On
other occasions, she told plaintiff she was too busy to discuss it. (Id. ¶¶ 36-37.) Between August
and December 2009, plaintiff received numerous warnings for her absences, despite providing
doctor’s notes explaining that the absences were related to her medical condition. (Id. ¶¶ 30-31,
33-38.) Plaintiff’s supervisor, Suzette Cuncelli (“Cuncelli”), allegedly told plaintiff in late 2009
that “hospitalization [was] not an excuse for missing a day of work.” (Id. ¶ 39.)
On March 15, 2010, Cuncelli terminated plaintiff because of her absences. (Id. ¶ 41.)
Cuncelli retracted the termination, however, when plaintiff told her the absences were because of
her medical condition. (Id.) Plaintiff provided Shanks with another doctor’s note explaining
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why she had been missing work, but Shanks told her the letter did not conform to SMMC’s
requirements. (Id. ¶ 43.) Plaintiff produced notes from four more doctors, but Shanks said they
were all unacceptable. (Id. ¶ 44.)
Plaintiff missed work on April 16, 2010, because of emergency surgery and provided a
doctor’s note. (Id. ¶ 45.) On about April 21, 2010, SMMC and Shanks gave plaintiff
information on how to reapply for FMLA benefits, stating the application was “necessary in
order to approve special accommodation for any absence prior to April 27, 2010.” (Id. ¶¶ 46-47.)
Plaintiff submitted the application. (Id. ¶ 48.) Nonetheless, on May 5, 2010, before plaintiff
received a response, Cuncelli and another SMMC employee notified her that she had been
terminated “for violating SMMC’s absenteeism policy.” (Id. ¶ 49.)
III. LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a
pleading, a defense of “failure to state a claim upon which relief can be granted” may be raised
by motion to dismiss. To survive a motion to dismiss under Rule 12(b)(6), a civil plaintiff must
allege facts that “‘raise a right to relief above the speculative level.’” Victaulic Co. v. Tieman,
499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949
(2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff’s
allegations must show that defendant’s liability is more than “a sheer possibility.” Id. “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of
the line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550
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U.S. at 557).
In Twombly, the Supreme Court used a “two-pronged approach,” which it later
formalized in Iqbal. Iqbal, 129 S. Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 21011 (3d Cir. 2009). Under this approach, a district court first identifies those factual allegations
that constitute nothing more than “legal conclusions” or “naked assertions.” Twombly, 550 U.S.
at 555, 557. Such allegations are “not entitled to the assumption of truth” and must be
disregarded. Iqbal, 129 S. Ct. at 1950. The court then assess “the ‘nub’ of the plaintiff[’s]
complaint—the well-pleaded, nonconclusory factual allegation[s] . . . to determine” whether it
states a plausible claim for relief. Id.
IV. DISCUSSION
Plaintiff’s Complaint asserts that she is entitled to relief under the FMLA, the Americans
with Disabilities Act (“ADA”), and the Pennsylvania Human Relations Act (“PHRA”). With
respect to the FMLA, plaintiff alleges that defendants CHE, SMMC, and Shanks unlawfully
denied her FMLA benefits and interfered with the exercise of her FMLA rights. With respect to
the ADA and PHRA, plaintiff alleges that because of her medical condition, defendants subjected
her to a hostile work environment, harassed her, retaliated against her, and wrongfully terminated
her.
In her response to defendants’ Motion to Dismiss, plaintiff voluntarily withdrew four of
her claims. First, plaintiff has withdrawn her claim for compensatory damages under the FMLA.
(Pl.’s Br. Opp’n 5.) Second, plaintiff has conceded that “she does not have a viable hostile work
environment claim under the FMLA.” (Id.) Third, plaintiff has withdrawn her claims against
defendant Shanks under the ADA. (Id.) Fourth, plaintiff has withdrawn her claim for
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compensatory damages under the ADA’s anti-retaliation provision. (Id.)
Defendants’ Motion to Dismiss is granted as to those claims withdrawn by plaintiff: (1)
the compensatory damages claim under the FMLA, (2) the hostile work environment claim under
the FMLA, (3) the claims against defendant Shanks under the ADA, and (4) the claim for
compensatory damages under the ADA’s anti-retaliation provision. Defendants’ Motion to
Dismiss is also granted as to plaintiff’s claims against CHE. As to all other claims, the Court
denies defendants’ motion.
A.
Claims Against CHE
Defendants argue that plaintiff has failed to state a valid claim against CHE, SMMC’s
parent company. It is well settled that “a parent corporation, like any stockholder, is not
normally liable for the wrongful acts . . . of a subsidiary even if or simply because the parent
wholly owns the subsidiary.” Jean Anderson Hierarchy of Agents v. Allstate Life Ins. Co., 2 F.
Supp. 2d 688, 691 (E.D. Pa. 1998); see also Pearson v. Component Tech. Corp., 247 F.3d 471,
484 (3d Cir. 2001). “[P]arental liability for a subsidiary’s acts is appropriate either when a
subsidiary is not a separate and independent corporation, but rather the alter ego of the parent
company, or if the subsidiary is an agent for the parent in a specific transaction.” Berk v. J.P.
Morgan Chase Bank, N.A., No. 11-2715, 2011 WL 4467746, at *7 (E.D. Pa. Sept. 26, 2011)
(citing Phoenix Can. Oil Co. v. Texaco, Inc., 842 F.2d 1466, 1476-77 (3d Cir. 1988)).
In this case, plaintiff has alleged merely that (1) CHE is a Pennsylvania corporation,
(Compl. ¶ 3), and (2) SMMC is a “Regional Health Corporation of CHE,” (id. ¶ 5). These
allegations, even if true, are insufficient to hold CHE liable for SMMC’s actions. The Court thus
grants defendants’ Motion to Dismiss with respect to all of plaintiff’s claims against CHE.
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B.
Claims Under the FMLA Against SMMC and Shanks
As stated above, plaintiff withdrew her claims for compensatory damages and hostile
work environment under the FMLA in her response to the motion to dismiss. The Court
accordingly grants defendants’ Motion to Dismiss as to those claims. Defendants’ motion does
not address any of plaintiff’s other allegations under the FMLA.
C.
Claims Under the ADA Against SMMC and Claims Under the PHRA Against
SMMC and Shanks
Plaintiff alleges that defendants subjected her “to a hostile work environment,
harassment, retaliation, and termination because of her medical condition” in violation of the
ADA and the PHRA. (Compl. ¶¶ 99, 118.) Plaintiff withdrew her claims against Shanks under
the ADA and her claim for compensatory damages under the ADA’s anti-retaliation provision.
The Court accordingly grants defendants’ Motion to Dismiss as to those claims.
Defendants make four arguments in support of their contention that additional parts of
plaintiff’s ADA and PHRA claims should be dismissed. The Court finds none of those
arguments persuasive.
1.
Administrative Exhaustion: Hostile Work Environment and Retaliation
Claims Under the ADA and PHRA Against SMMC and Shanks
“Once a charge of some sort 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
394, 398-99 (3d Cir. 1976)). EEOC charges are given a “fairly liberal construction,” and “the
failure to check a particular box on an EEOC charge . . . is not necessarily indicative of a failure
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to exhaust the mandatory administrative remedies.” Schouten v. CSX Transp., Inc., 58 F. Supp.
2d 614, 616 (E.D. Pa. 1999). “[T]he purpose of the filing requirement is to enable the EEOC to
investigate and, if cause is found, to attempt to use informal means to reach a settlement of the
dispute.” Anjelino v. N.Y. Times Co., 200 F.3d 73, 94 (3d Cir. 1999) (citing Hicks, 572 F.2d at
963).
In this case, defendants assert that plaintiff failed to exhaust her administrative remedies
with respect to her hostile work environment and retaliation claims because she did not mention
them in her EEOC filing and failed to check the pertinent boxes on the EEOC form. (Defs.’ Mot.
Dismiss 10-11.) Defendants cite Barzanty v. Verizon PA, Inc., 361 F. App’x 411, 413-14 (3d
Cir. 2010), to support their contention. (Defs.’ Mot. Dismiss 11.) In Barzanty, the Third Circuit
granted summary judgment against a plaintiff’s hostile work environment claim, holding that the
claim was “not within the scope” of the plaintiff’s EEOC charge. 361 F. App’x at 413-14. The
plaintiff in that case “provided no facts that suggest[ed] a hostile work environment, and she did
not check the box indicating that her charge was a ‘continuing action.’” Id. at 414. Moreover,
her discrimination claim and her hostile work environment claim involved “separate
occurrences”; the facts underlying the claims were unrelated. Id.
Defendants are correct that the present case resembles Barzanty in some aspects.
Plaintiff’s Complaint alleges in conclusory language that she “complied with all jurisdictional
prerequisites and was issued a Notice of Right to Sue by the Equal Employment Opportunity
Commission on April 27, 2011.” (Compl. ¶ 18.) However, her EEOC charge states that the
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discrimination at issue occurred only on May 10, 2010, the day she was terminated.2 (Defs.’
Mot. Dismiss Ex. B, at 2.) As in Barzanty, plaintiff did not check the box indicating that hers
was a “continuing action,” and the summary of the particulars of her case is mostly devoted to
her termination. (Id.)
There are, however, important differences between this case and Barzanty. Unlike
Barzanty, the EEOC charge in this case refers to “time and attendance issues” and having been
denied a reasonable accommodation. (Id.) These statements should have provided notice to the
EEOC that the termination arose from ongoing issues. Moreover, plaintiff’s claims in this case
arose from a series of related events that allegedly ended in her termination.
The purpose of the exhaustion requirement is satisfied as long as “the EEOC had
cognizance of the full scope of the situation during its settlement efforts.” Anjelino, 200 F.3d at
94. The Court concludes that plaintiff’s administrative filing provided the EEOC with sufficient
notice of her hostile work environment and retaliation claims under the ADA and PHRA against
SMMC and Shanks.
The Court thus denies this part of defendants’ Motion to Dismiss.
2.
Administrative Exhaustion: Claims Under the ADA and PHRA Against
Defendant Shanks
Defendants raise a second exhaustion argument. They contend that plaintiff failed to
exhaust her administrative remedies with respect to defendant Shanks because the EEOC charge
2
The Court may consider the EEOC charge at the motion-to-dismiss stage because it is
“an undisputedly authentic document” on which “plaintiff’s claims are based.” Pension Benefit
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); see also
Mulholland v. Classic Mgmt., No. 09-2525, 2010 WL 2470834, at *4 & n.6 (E.D. Pa. June 14,
2010) (examining an EEOC charge in an analogous setting). Both parties attached the EEOC
charge to their motion papers.
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does not mention her. (Defs.’ Mot. Dismiss 9-10.) This argument is also unavailing.
Under the ADA and PHRA, a plaintiff generally may only bring a civil suit against
defendants she named in her EEOC charge. Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d
Cir. 1977). An exception exists, however, “when the unnamed party received notice and when
there is a shared commonality of interest with the named party.” Schafer v. Bd. of Pub. Educ. of
Sch. Dist. of Pittsburgh, 903 F.2d 243, 252 (3d Cir. 1990). In Glus, the Third Circuit identified
four factors relevant to the inquiry:
1) whether the role of the unnamed party could through reasonable
effort by the complainant be ascertained at the time of the filing of
the EEOC complaint; 2) whether, under the circumstances, the
interests of a named [party] are so similar [to] the unnamed party’s
that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party
in the EEOC proceedings; 3) whether its absence from the EEOC
proceedings resulted in actual prejudice to the interests of the
unnamed party; [and] 4) whether the unnamed party has in some
way represented to the complainant that its relationship with the
complainant is to be through the named party.
Glus, 562 F.2d at 888.
Plaintiff’s EEOC charge does not mention Shanks by name. Nonetheless, the Schafer and
Glus factors favor allowing plaintiff’s claims against her to proceed. Both Schafer factors favor
plaintiff on the present state of the record. Since SMMC can be held liable for its employees’
discriminatory conduct, SMMC and Shanks shared a common interest in defending against
plaintiff’s allegations. See Duffy v. Se. Pa. Transp. Co., No. 94-4260, 1995 WL 299032, at *2
(E.D. Pa. May 12, 1995) (“Because SEPTA is liable for the discriminatory acts of its employees,
one could reasonably expect SEPTA to represent the individuals’ interests regarding voluntary
conciliation and compliance efforts.”). There is a factual question as to whether Shanks received
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notice of the EEOC investigation, although she may have, since she had an important role in the
events at issue.
Likewise, most of the Glus factors favor plaintiff. The second and third Glus factors,
similarity of interests and actual prejudice, are satisfied on the present state of the record. As
stated above, SSMC and Shanks had similar interests in defending against plaintiff’s claims.
There is no allegation (or evidence) that plaintiff’s failure to include Shanks’s name on the
EEOC charge prejudiced Shanks’s interests. There is currently no allegation (or evidence) as to
the fourth Glus factor. The only Glus factor that does not favor plaintiff is the first: plaintiff’s
knowledge of the role of the unnamed party. When plaintiff filed her EEOC charge, she knew
that Shanks had an important role in the events at issue. However, since most of the Schafer and
Glus factors favor plaintiff, the Court concludes that plaintiff exhausted her administrative
remedies with respect to defendant Shanks.
The Court thus denies this part of defendants’ Motion to Dismiss.
3.
Failure to State a Claim: Hostile Work Environment Claims Under the
ADA and PHRA Against SMMC and Shanks
Defendants also contend that plaintiff failed to state a hostile work environment claim
under the ADA and PHRA. (Defs.’ Mot. Dismiss 11-13.) To state a prima facie hostile work
environment claim under the ADA or PHRA,3 a plaintiff must allege that: (1) she is a qualified
individual with a disability under the ADA, (2) she was subject to unwelcome harassment, (3) the
harassment was based on her disability or request for an accommodation, (4) the harassment was
sufficiently severe or pervasive to alter the conditions of her employment and create an abusive
3
The ADA and PHRA are “interpreted coextensively.” Castellani v. Bucks Cnty.
Municipality, 351 F. App’x 774, 777 (3d Cir. 2009).
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working environment, and (5) the employer knew or should have known of the harassment and
failed to take prompt, effective remedial action. Walton v. Mental Health Ass’n of Se. Pa., 168
F.3d 661, 667 (3d Cir. 1999).
Defendants contest only the fourth Walton element. In evaluating the fourth element, the
district court must “consider all the circumstances, including ‘the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.’” Id.
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Defendants contend that although
plaintiff used the conclusory phrase “hostile work environment” in her Complaint, she failed to
allege that she suffered “sufficiently severe or pervasive” harassment to state a prima facie claim.
(Defs.’ Mot. Dismiss 12.)
The Court disagrees. Plaintiff avers that she made earnest efforts to comply with
SMMC’s requirements but was nonetheless disciplined repeatedly and eventually terminated.
She received warnings for at least six absences in a nine-month period, even though Shanks and
others at SMMC knew about her medical condition. (Compl. ¶¶ 31, 33, 38.) She provided five
doctors’ notes in March 2010 alone, but Shanks rejected them all as “unacceptable.” (Id. ¶ 4344.) This repeated discipline and continued refusal to cooperate is sufficient to state a claim.
The Court thus denies this part of defendants’ Motion to Dismiss.
4.
Argument: Failure to Consider FMLA Application Does Not Violate the
ADA
Defendants also contend that their alleged failure to consider plaintiff’s application for
FMLA leave did not violate the ADA. (Defs.’ Mot. Dismiss 14-15.) In making this argument,
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defendants rely on Trevino v. United Parcel Service, No. 08-0889, 2009 WL 3423039 (N.D. Tex.
Oct. 23, 2009), a case in which a plaintiff brought a failure-to-accommodate claim against her
employer under the ADA. The plaintiff’s claim in that case was based entirely on her allegation
that the employer had repeatedly “denied or delayed” approving her requests for FMLA leave.
Id. at *12. The court held that an ADA failure-to-accommodate claim could not redress wrongful
denial of FMLA leave; FMLA leave is “a right enforceable under a separate statutory provision.”
Id. Since the plaintiff in Trevino failed to present any other evidence that the defendant had
“denied any accommodation request or . . . refused to engage in good faith negotiations related to
accommodation of her disabilities,” the court granted the defendant’s motion for summary
judgment as to the failure-to-accommodate claim under the ADA. Id. at *13.
The Court rejects this argument as inapplicable to this case. First, plaintiff’s response
clarifies that the reasonable accommodation she sought was “extra sick days,” not FMLA leave.
(Pl.’s Br. Opp’n 11.) Moreover, defendants’ alleged mishandling of plaintiff’s FMLA requests is
one of many examples of discriminatory conduct that support plaintiff’s ADA claim. Indeed,
plaintiff devotes twenty-three paragraphs of her Complaint to her ADA claim, and only two of
those paragraphs allude to the FMLA leave denials. (Compl. ¶¶ 101, 116.) Finally, plaintiff does
not contend that denial of FMLA leave is a per se violation of the ADA. The Court thus denies
this part of defendants’ Motion to Dismiss.
V. CONCLUSION
For the foregoing reasons, the Court grants defendants’ Motion to Dismiss as to
plaintiff’s claims against CHE and the claims plaintiff withdrew in her response to the Motion to
Dismiss. Plaintiff withdrew the following by response: (1) her compensatory damages claim
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under the FMLA, (2) her hostile work environment claim under the FMLA, (3) her claims
against defendant Shanks under the ADA, and (4) her claim for compensatory damages under the
ADA’s anti-retaliation provision.
The Court denies defendants’ Motion to Dismiss in all other respects. That leaves the
following for adjudication: (1) claims against SMMC and Shanks for denial of FMLA benefits
and interference with the exercise of FMLA rights, with the parties agreeing that compensatory
damages are not available; (2) claims against SMMC under the ADA for harassment, hostile
work environment, retaliation, and wrongful termination, with the parties agreeing that
compensatory damages are not available as to the retaliation claim; and (3) claims against
SMMC and Shanks under the PHRA for harassment, hostile work environment, retaliation, and
wrongful termination.
The denial of defendants’ Motion to Dismiss is without prejudice to their right to raise
their arguments on motion for summary judgment or at trial. An appropriate Order follows.
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