Allen v. Lackawanna Cnty. Bd. of Comm'rs, 3:18-CV-209

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
Writing for the CourtJUDGE MARIANI
Docket Number3:18-CV-209
Decision Date23 September 2019

JO ANN ALLEN, Plaintiff,



September 23, 2019

(Magistrate Judge Mehalchick)



Presently before the Court is a Report and Recommendation ("R&R") (Doc. 46) by Magistrate Judge Karoline Mehalchick in which she recommends that Defendants' Motion to Dismiss (Doc. 36) be granted in part and denied in part (Doc. 46 at 42). The operative complaint was filed on January 31, 2019, and is titled "Magistrate Judge Ordered, Amended Complaint." (Doc. 35.) In a Memorandum Opinion issued on March 14, 2019, the Court stated that "[t]he record in this case is muddled" (Doc. 42 at 2), an assessment in large part based on the pro se Plaintiff's numerous unorthodox filings (id. at 2-6). In the process of clarifying the record, the Court accepted the January 31, 2019, filing (Doc. 35) as Plaintiff's "Second Amended Complaint." (Doc. 42 at 8.)

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In the R&R under consideration, Magistrate Judge Mehalchick recommends that Defendants' motion be granted as to the following claims:

a. Plaintiff's Disability Discrimination Claim brought under the ADA;

b. Plaintiff's private causes of action brought under 42 U.S.C. 1983; 42 U.S.C. 1981(a); 42 U.S.C. 12101-12213 and 12203; 43 PS 951-963; 29 U.S.C. 2601, et seq.; 29 U.S.C. 623(d); 28 C.F.R. 28, 35, 130-140; 43 28 C.F.R. 42.510-42.512; 29 CFR Labor 1630-1630.9; and Title 42, Pa Tort Claims Act, 8545;

c. Plaintiff's Retaliation Claim brought under the FMLA;

d. Plaintiff's Fourteenth Amendment Due Process Claim in connection with her March 11, 2015 suspension, her July 18, 2016 functional demotion and July 22, 2018 written warning; and

e. Plaintiff's state law claims for fraud and, to the extent such a claim may be liberally construed, intentional infliction of emotional distress.

(Doc. 46 at 4243.) She recommends that the motion be denied as to the following claims:

a. Plaintiff's Retaliation Claim under the ADA;

b. Plaintiff's Hostile Work Environment Claim under the ADA;

c. Plaintiff's Failure to Accommodate Claim under the ADA; and

d. Plaintiff's Fourteenth Amendment Due Process Claims brought against Lackawanna County in connection with her October 19, 2016, and November 1, 2016 Pre-Termination Notices.

(Doc. 46 at 43.) The Magistrate Judge also recommends that further leave to amend be denied and the matter be remanded to her for further proceedings. (Id.)

Plaintiff filed objections to the R&R on September 4, 2019. (Doc. 47.) Defendants did not file objections to the R&R and the time for doing so has passed. Nor did Defendants

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file a response to Plaintiff's objections and the last day for doing so has also passed. Therefore, this matter is ripe for disposition

A District Court may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition" of certain matters pending before the Court. 28 U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's Report and Recommendation, the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. at § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3); M.D. Pa. Local Rule 72.3; Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). "If a party does not object timely to a magistrate judge's report and recommendation, the party may lose its right to de novo review by the district court." EEOC v. City of Long Branch, 866 F.3d 93, 99-100 (3d Cir. 2017). However, "because a district court must take some action for a report and recommendation to become a final order and because the authority and the responsibility to make an informed, final determination remains with the judge, even absent objections to the report and recommendation, a district court should afford some level of review to dispositive legal issues raised by the report." Id. at 100 (internal citations and quotation marks omitted).

Having conducted the required de novo review, the Court agrees with the R&R's conclusion that Defendants' Motion to Dismiss (Doc. 36) should be granted in part and

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denied in part. However, because the Court does not reach the same conclusions on the dismissal of certain claims, the Court will adopt the R&R as modified.


Plaintiff objects to the R&R's recommendation regarding the following claims: 1) ADA discrimination claim; 2) Fourteenth Amendment Due Process claim based on functional demotion; 3) FMLA retaliation and discrimination claims; 4) state law fraud and intentional infliction of emotional distress claims; 5) claims brought under "29 CFR Labor 1630-1630.9"; and 6) official immunity defense under "Title 42, Pa Tort Claims Act, 8545." (Doc. 47 at 13.) Plaintiff also objects to the recommendation that further leave to amend not be granted. (Doc. 47 at 13.) In addition to objecting to the recommended disposition of specific claims, Plaintiff points to errors contained in the Magistrate Judge's statement of the background and procedural history of the case. (Doc. 47 at 2-4.) The Court will address each of Plaintiff's specific objections to the recommended disposition of claims contained in her Second Amended Complaint (Doc. 35) and will consider alleged factual and procedural errors as they may be relevant to the analysis of the claim at issue.

A. ADA Discrimination Claim

Magistrate Judge Mehalchick summarized Plaintiff's ADA discrimination claim as follows:

Allen generally alleges that Lackawanna County's reasons for terminating her were "illogical, irrational, incredible, unjust, and factually . . . pretext for prohibited employment discrimination and retaliation . . ." (Doc. 35, at 10). She then cites to the respective reasons Lackawanna County provided for

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terminating her, claiming as follows: that any willful misconduct related to her access of the employer's network, in violation of their policies, is "absurd"; that her insubordination for not following the employer's network access policy was discriminatory, because Browning only sent the policy to her and thus did not "uniformly appl[y] [the directive] to all employees"; that the falsification of documentation charge is based on Lackawanna County's misinterpretation of a certain journal entry; and that her criminal misuse of county property "is not plausible as a criminal misdemeanor, let alone as [] employee misuse." (Doc. 35, at 10-11).

(Doc. 46 at 21-22.) Magistrate Judge Mehalchick then concluded that "[e]ven when taken as true, however, Allen's conclusory allegations fail to state a plausible ADA discrimination claim. Simply stated, Allen does not sufficiently plead that her termination was motivated by the Lackawanna County's discriminatory animus towards her alleged disability." (Id. at 22.)

In her objection to this finding, Plaintiff states that the alleged disability arises from her "unjustified, less-favorable treatment by LC, et al., due to her mental and physical disabilities." (Doc. 47 at 6.) She cites several examples of what she considers less favorable treatment based on her disabilities, including the following: removal of job responsibilities on July 28, 2016; replacement following her functional demotion with a younger, less experienced, non-disabled individual; segregation and isolation in her work station change; and "illicit" suspension, functional demotion, and immediate termination. (Doc. 47 at 6.)

Although Plaintiff's cited examples are not found in Count Six of her Second Amended Complaint, many related averments are contained elsewhere in the document. Her allegations of decreased job duties and replacement by a younger, less experienced,

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non-disabled person are found in her allegations related to Count Three titled "FMLA, Disparate Treatment and Retaliation." (Doc. 35 at 5, Count Three ¶ d.) Allegations of improper demotion, suspension, and termination are also found in the Second Amended Complaint. (See Doc. 35 at 3-10.)

With their motion to dismiss, Defendants did not construe Count Six of Plaintiff's Second Amended Complaint to state a claim for disability discrimination. (Doc. 39 at 21.) Rather, they considered Count Six as a Fourteenth Amendment Due Process claim and analyzed it as such. (Id. at 21-22.)

The Magistrate Judge properly construed the cause of action in Count Six to claim disability discrimination under the ADA. (Doc. 46 at 21.) However, the Magistrate Judge considered only the allegations made under the "Employer Discrimination and Deception" heading of Count Six rather than reading the Second Amended Complaint as a whole and liberally construing allegations made therein.

As the Court of Appeals for the Third Circuit has advised "review of the sufficiency of [a plaintiff's] pro se complaint, 'however inartfully pleaded,' is less stringent than that of pleadings prepared by lawyers." Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972). Further, the pro se filing is to be read as a whole and interpreted in the light most favorable to the plaintiff. Harrison v. Local 54 of Am. Federation of State, County and Municipal Emp., AFL-CIO, 518 F.2d 1276, 1283 (3d Cir. 1975) (citing Haines, 404 U.S. 519).

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Reading the Second Amended Complaint as a whole and reading it most favorably to Plaintiff who is proceeding pro se, the Court concludes that the allegations contained therein raise a plausible claim for discrimination under the ADA. Importantly, Defendants do not specifically argue otherwise in their consideration of Count Six in their brief supporting their motion. (See Doc. 39 at 21-22.) Further, Defendants identify a disability discrimination claim in connection with failure to accommodate (id...

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