Pollere v. USIG Pa., Inc.

• Citation: 136 F.Supp.3d 680
• Decision Date: 18 December 2015
• Docket Number: CIVIL ACTION No. 15-2421
• Parties: Vincent Pollere, Plaintiff, v. USIG Pennsylvania, Inc., and US Installation Group, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

136 F.Supp.3d 680

Vincent Pollere, Plaintiff,

v. USIG Pennsylvania, Inc.,andUS Installation Group, Inc., Defendants.

CIVIL ACTION No. 15-2421

United States District Court, E.D. Pennsylvania.

Signed December 18, 2015

Walter J. Timby, III, Gibson & Perkins PC, Media, PA, for Plaintiff.

James Shrimp, High Swartz Roberts & Seidel, Norristown, PA, for Defendant.

MEMORANDUM

McHUGH

, J.

This case concerns employment discrimination allegations that an employer discriminated against an employee based on both the employee's own disability and the disability of the employee's spouse. The Defendants seek to dismiss only the claim of "association discrimination," and for the reasons that follow, the motion will be denied.

I. Factual Background

In ruling on a motion to dismiss, the Court will presume the truth of the factual allegations in the Amended Complaint. Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

. Plaintiff, Vincent Pollere was hired by Defendant, USIG, a carpet company, as a project coordinator in 2008. Pollere began working at USIG's Hatboro office just outside of Philadelphia. In that role, Pollere was responsible for interfacing with subcontractors and supervising job sites. Pollere was transferred to USIG's office in Melbourne, Florida, where he served as general manager from September 2011 to February 2012. Pollere then returned to USIG's Hatboro office.

In the fall of 2012, Pollere's wife, Mary Ellen, began suffering from spinal meningitis

. Mary Ellen's symptoms included dizziness, light headedness, lethargy, and headaches—all of which impaired her ability to walk, eat, sleep, and care for herself. As a result of her condition, Mary Ellen was hospitalized from January 25, 2013 until February 2, 2013. Pollere took time off from work pursuant to the Family and Medical Leave Act ("FMLA") from January 7, 2013 to March 31, 2013 in order to care for his ailing wife. Pollere returned to work on April 1, 2013. Mary Ellen continued to suffer from spinal meningitis until September 2014.

Pollere—unrelated to his wife's condition—suffered from plaque psoriasis

. When dormant, Pollere's psoriasis was exhibited by symptoms of red, flaky, scaly, or cracked skin. These symptoms caused frequent itching and required oral medication. USIG was aware of Pollere's plaque psoriasis.

After Pollere returned to work from FMLA leave on April 1, 2013, his plaque psoriasis

worsened as he suffered a "flare up." Pollere's symptoms included a large rash, flaking skin, and an inability to maintain his normal body temperature, which required him to wear a winter coat at all times. These symptoms were visible to other employees, including Kevin Gamble, Pollere's direct supervisor. Between April 22 and April 24, 2013, Pollere was hospitalized and diagnosed with unstable angina, coronary artery disease with drug-eluting stent placement in his right coronary, and psoriasis.

Pollere returned to work on April 29, 2013. On April 30, Pollere received an "Employee Performance Notice." That notice stated that Pollere had used up all of his medical leave and that he left work early every day during the week of April 15, 2013. In his Amended Complaint, Pollere posits that he was scheduled to work from 6:30 a.m. to 5:00 p.m. The Employee Performance Notice indicated that Pollere left work, respectively, at 5:03 p.m., 5:00 p.m., 5:01 p.m., 5:00 p.m., and 5:00 p.m. If Pollere is correct, he was cited inaccurately.

Between April 24 and June 15, 2013, Pollere was only able to work sparingly. During that period, Pollere was readmitted to the hospital because of his psoriasis

. Despite his frequent absences from work, Pollere and his wife kept USIG informed about his condition. According to his Amended Complaint, USIG never voiced any objection to Pollere's absences between May 30 and June 8, 2013. On Saturday June 8, 2013, Pollere received a letter from John Ayers, USIG's head of human resources, informing him that he needed to provide them with a doctor's note explaining his absences by June 10, 2013. That letter stated that Pollere's job would be considered abandoned if he did not provide USIG with the doctor's note by June 10. Pollere called Ayers on June 10 but he was absent from work. On June 11, Pollere reached Ayers and informed him that he would obtain a doctor's note and provide it to Ayers on June 13. Ayers voiced no objection. Pollere obtained the note from Dr. Abby Van Voorhees on June 13 and provided it to USIG. Dr. Van Voorhees indicated that Pollere was under her care and that he would be able to return to work on June 17, 2013.

On June 15, 2013, Pollere received a letter from USIG stating that his frequent absences were being treated as a resignation and his employment status was being changed to "inactive." Pollere filed the instant lawsuit on or about May 1, 2015. In his Amended Complaint, Pollere asserted two claims: (1) discrimination based on his disability under the Americans with Disabilities Act ("ADA") and (2) discrimination on the basis of association with a disabled individual under the ADA because of his wife's spinal meningitis

. USIG has filed a Partial Motion to Dismiss Pollere's discrimination on the basis of association claim. For the reasons sets forth below, USIG's Motion will be denied.

II. Legal Standard

Rule 12(b)(6) of the Federal Rules of Civil Procedure

permits the dismissal of a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The United States Supreme Court's recent decisions in Bell Atl. Corp. v. Twombly, and Ashcroft v. Iqbal, altered the manner in which courts analyze a Rule 12(b)(6) motion to dismiss. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Iqbal , 556 U.S. 662, 129 S.Ct. 1937 (2009). The Third Circuit observed that "pleading standards have seemingly shifted … to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir.2009).

After Twombly

, it is no longer sufficient for a plaintiff to merely allege the elements of a cause of action. Phillips v. County of Allegheny , 515 F.3d 224, 233 (3d Cir.2008). Rather, a complaint must set forth facts suggestive of the proscribed conduct sufficient to raise a reasonable expectation that discovery will reveal evidence of the necessary elements of a cause of action. Id. at 233–34. Conclusory allegations, without more, will not "unlock the doors of discovery" for the plaintiff and are not considered when the court is determining whether the factual allegations of the complaint are enough to state a plausible claim. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937

.

In Iqbal

, the Supreme Court set forth the following two-pronged approach for federal courts to apply in determining whether a complaint should be dismissed: (1) the court should not assume legal conclusions as true, and (2) after identifying the complaint's ‘well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.‘ Id. at 664, 129 S.Ct. 1937.

III. Analysis

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against "a qualified individual on the basis of a disability." 42 U.S.C. § 12112(a)

. The Act defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation , can perform the essential functions" of the job. 42 U.S.C. § 12111(8) (emphasis added). The protections of the ADA, however, are not limited to disabled employees. "Discrimination" includes adverse employment actions against qualified individuals because of their association with a disabled individual. 42 U.S.C. § 12112(b)(4). Specifically, the act provides that employers are prohibited from:

excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.

Id.

Thus, the ADA prohibits employers from taking adverse employment actions against employees because of their own condition, as well as employees deemed protected "because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." See Reddinger v. Hospital Central Services, Inc. , 4 F.Supp.2d 405, 408 (E.D.Pa.1998)

(citing Tyndall v. National Education Centers, Inc., of California , 31 F.3d 209, 214 (4th Cir.1994) ); 29 C.F.R. § 1630.8. Some courts have referred to this as "association" discrimination. Dollinger v. State Ins. Fund , 44 F.Supp.2d 467 (N.D.N.Y.1999).

The duty owed in the case of a non-employee with a disability is limited, as highlighted by the ADA's interpretive guidelines, which state: "an employer need not provide the applicant or employee without a disability with a reasonable accommodation because that duty only applies to qualified applicants or employees with disabilities." 29 C.F.R. § Pt. 1630, App. In particular, an employer is not required to provide an employee with a modified work schedule as an accommodation to enable the employee to care for a spouse with a disability. Id; see also, Reddinger , 4 F.Supp.2d at 408

(explaining that the discrimination by association provision does not require an employer to restructure an employee's work schedule to enable the employee to care for a relative with a disability because that provision does not require the employer to provide a reasonable accommodation).

As construed by the Court of Appeals, the discrimination by association provision draws "a material distinction between firing an employee because of a relative's disability and firing an employee because of the need to take time off to care for the relative." Erdman v. Nationwide Ins. Co. , 582 F.3d 500, 510 (3d Cir.2009)

(indicating that the...