Drummer v. Trs. of the Univ. of Pa.

286 F. Supp. 3d 674
District Court, E.D. Pennsylvania·Decided December 11, 2017·No. CIVIL ACTION NO. 16–2982·Published·Cited by 24 cases

Opinion

Rufe, J.

Plaintiff, Lee J. Drummer, brought this suit against his former employer, Defendant Hospital of the University of Pennsylvania, alleging age, sex, race, and disability discrimination and retaliation, and violation of the Family and Medical Leave Act ("FMLA"). Defendant has moved to dismiss his Amended Complaint on the grounds that certain claims are time barred and all claims are insufficiently alleged. For the reasons discussed below, Defendant's motion will be granted in part and denied in part, and Plaintiff will be granted leave to file a second amended complaint.

I. BACKGROUND

The following facts alleged in the Amended Complaint are assumed to be true, unless otherwise stated, for purposes of the Motion to Dismiss.

Plaintiff is a 56-year-old African-American man who was employed by Defendant in 2014 and 2015, when the alleged events at issue took place.1 He alleges that he is *678disabled and has a family member who is also disabled. While the Amended Complaint does not clearly identify Plaintiff's position, it appears, based on his allegations concerning "other secretaries," that Plaintiff was working as a secretary.2 Several years before the events giving rise to this case, Plaintiff had filed an Equal Employment Opportunity Commission discrimination complaint against Defendant after being terminated, and was subsequently reinstated.3

In June of 2014, Plaintiff learned that two other secretaries, who were both African-American women, were paid approximately $1.40 more per hour than he was.4 He further believes that "other non-African-American secretaries" were paid more than he was, including a particular "lighter skinned individual" named Michael.5 When he learned of the alleged pay disparities, he spoke with his supervising nurse managers.6 Around that time, he was placed on a performance improvement plan ("PIP") that lasted from June 2014 until March 2015.7

Plaintiff believed the PIP was a "general form of harassment," and he said so to Defendant's human resources department sometime in March 2015.8 The human resources personnel responded by suggesting that Plaintiff take a leave of absence "due to personal issues he was having at home."9 After hearing the suggestion, Plaintiff sought help from Defendant's Employee Assistance Program as well as from his physician, who prescribed him an antidepressant.10

At some point during this time, Plaintiff applied for a "leave of absence" but was denied.11 He also submitted a formal request for FMLA leave, but it is unclear whether this formal request was granted or denied.12 In addition, he sought a transfer to a different unit for "health reasons," but was told that he would need to speak with the nurse manager before a transfer request could be entertained.13

Although Plaintiff states that his request for leave was denied, it appears he did take time off from work, as he alleges that he received a correspondence from Defendant in early June 2015, "indicating that if he did not respond by June 8, 2015, he would be terminated."14 Plaintiff responded to the letter,15 and was "told to report back to work" on June 10, 2015.16 On that day, he was informed that he was being terminated for "performance issues in March 2015."17 He believes that he was replaced by "one or more younger secretaries."18

On March 10, 2016, Defendant filed a Charge of Discrimination with the EEOC and with the Pennsylvania Human Relations Commission alleging discrimination *679based on age, race, sex, and disability, and unlawful retaliation.19 He received a Dismissal and Notice of Rights letter on March 17, 2016 and timely filed this suit, pro se , on June 14, 2016.

After counsel was appointed, Plaintiff filed the Amended Complaint (Doc. No. 26). Counts I, II, and IV of the Amended Complaint allege discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981 respectively. Count III asserts disability discrimination and retaliation in violation of the Americans with Disability Act ("ADA"). Count V alleges interference and retaliation in violation of the FMLA.

Defendant now moves to dismiss all claims.

II. LEGAL STANDARD

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 substance to show that he is entitled to relief.20 In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party.21 Courts are not, however, bound to accept as true legal conclusions couched as factual allegations.22 Something more than a mere possibility of a claim must be alleged; a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face."23 The complaint must set forth "direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory."24 In deciding a motion to dismiss, courts may consider "only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim."25 A motion to dismiss may be granted if "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations."26

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Drummer v. Trs. of the Univ. of Pa., 286 F. Supp. 3d 674 (E.D. Pa. 2017).

286 F. Supp. 3d 674 (Drummer v. Trs. of the Univ. of Pa.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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