Opinion
2:23-CV-00216-CRE
02-06-2024
MANDY SWARTZWELDER, Plaintiff, v. JUNIPER COMMUNITIES, LLC, Defendant,
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
This lawsuit was initiated by Plaintiff Mandy Swartzwelder (“Plaintiff”) against Juniper Village at South Hills (“Juniper”) for alleged failure to accommodate and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. Ann. § 951 et seq., disability discrimination under the ADA and the PHRA, and religious discrimination under Title VII and the PHRA.
Juniper represents that Plaintiff incorrectly identified it as “Juniper Communities, LLC, d/b/a Harbour Senior Living of South Hills.” (ECF No. 17) at 1.
Presently before the Court is Juniper's motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). (ECF No. 17). The motion is fully briefed and ripe for disposition. (ECF Nos. 18, 23, 24, 25). The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367.
For the reasons that follow, it is respectfully recommended that Juniper's motion be denied.
II. REPORT
a. Background
In March 2020, Senior Living Corporation hired Plaintiff as a housekeeper. Am. Compl. (ECF No. 15) ¶ 22. Senior Living Corporation was purchased by Juniper in March 2021, and Plaintiff alleges she was informed she would keep her position. Id. ¶ 24. Plaintiff alleges that Juniper absorbed Senior Living Corporation's employees as its own, and that Senior Living Corporation acted as Juniper's agent and enforced Juniper's policies. Id. ¶ 6. Plaintiff also maintains that Juniper “controlled Plaintiff's source of instrumentalities to perform work, dictated the location and timing of Plaintiffs work, maintained an open-ended relationship with Plaintiff, withheld taxes in its payments to Plaintiff, Plaintiffs business was part of the regular business of Juniper, and Plaintiff did not have the right to hire/choose assistant.” Id. ¶ 5.
Plaintiff appears to associate “Senior Living Corporation” synonymously with “SL South Hills, LLC.” See (ECF No. 15) ¶¶ 6, 24. For purposes of this recommendation, the Court considers “SL South Hills, LLC” and “Senior Living Corporation” as interchangeable entities.
In March 2021, Plaintiff asserts that “Gloria LNU, Director” (“Director Gloria”) informed employees, including Plaintiff, that they were required to receive a Covid-19 vaccination (“vaccination”) by July 12, 2021, or would be terminated. Id. ¶¶ 25, 26. As a result, Plaintiff informed Director Gloria, the Housekeeping Supervisor, and the Housekeeping Manager that she could not receive the vaccination because of her religious beliefs and disability. Id. ¶ 27. Plaintiff alleges that she asked Director Gloria for advice on what to do because she could not get the vaccination and needed to keep her job and claims that Director Gloria did not provide her with any information. Id. ¶ 28-29. Plaintiff claims Director Gloria told her there was no guarantee that Juniper would accommodate her. Id. ¶ 30.
Plaintiff is Pentecostal and suffers from Hashimoto's disease. Id. ¶¶ 19, 20. In May 2021, Plaintiff asserts she submitted a note to Director Gloria that was written by Plaintiff's religious pastor to excuse vaccination. Id. ¶¶ 31, 32. Plaintiff claims Director Gloria stated that Plaintiff needed to complete a vaccination exemption form; but when Plaintiff requested it, Director Gloria failed to provide it to her. Id. ¶¶ 33-35.
Plaintiff alleges that during a June 2021 staff meeting, Director Gloria stated that Juniper would not hire any “problem employees.” Id. ¶ 36. That same month, Plaintiff alleges Director Gloria told her that Plaintiff was combative in front of a resident and did not want Plaintiff working there. Id. ¶ 38.
On June 30, 2021, Plaintiff asserts she submitted another note to Director Gloria-this time, a note written by Plaintiff's endocrinologist to excuse vaccination. Id. ¶¶ 39, 40. Plaintiff claims Director Gloria again failed to provide a vaccination exemption form and did not engage in any related discussions. Id. ¶¶ 41-42.
On July 5, 2021, Plaintiff alleges she called Juniper's Human Resource Department to complain about Director Gloria's failure to provide a vaccination exemption form and reasonable accommodation as well Director Gloria's retaliation against her. Id. ¶ 43. According to Plaintiff, Juniper responded that Director Gloria provided inaccurate information, and that Plaintiff would be provided with a vaccination exemption form at her Juniper interview. Id. ¶¶ 44, 45.
On July 7, 2021, Plaintiff met with Director Gloria, the Housekeeping Supervisor, and Carl LNU-Human Resource Representative. Id. ¶ 46. During that meeting, Director Gloria terminated Plaintiff for “many absences.” Id. ¶ 47. According to Plaintiff, she did not violate Juniper's attendance policies. Id. ¶ 48.
Plaintiff ultimately filed the operative ten-count amended complaint against Juniper asserting religious discrimination under Title VII and the PHRA (Counts I and II); disability discrimination under the ADA and the PHRA (Counts III and IV); failure to accommodate under Title VII, the ADA, and the PHRA (Counts V, VI, and VII); and retaliation under Title VII, the ADA, and the PHRA. (Counts VIII, IX, and X).
The amended complaint asserts that Plaintiff exhausted her administrative remedies and timely filed this lawsuit after receiving the U.S. Equal Employment Opportunity Commission's “Right to Sue” letter. (ECF No. 15) ¶¶ 14, 16-17.
b. Standard of Review
The applicable inquiry under Fed.R.Civ.P. 12(b)(6) is well settled. Under Fed.R.Civ.P. 8, a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Fed.R.Civ.P. 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” “To survive a motion to dismiss, 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). This “ ‘does not impose a probability requirement at the pleading stage,' but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary elements.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Yet a court need not accept as true “unsupported conclusions and unwarranted inferences,” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000), or the plaintiff's “bald assertions” or “legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Although a complaint does not need detailed factual allegations to survive a Fed.R.Civ.P. 12(b)(6) motion, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555. Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.... 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 U.S. at 556) (internal citations omitted).
When considering a Fed.R.Civ.P. 12(b)(6) motion, the court's role is limited to determining whether a plaintiff has a right to offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court does not consider whether a plaintiff will ultimately prevail. Scheuer, 416 U.S. 232. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000), holding modified by Simon v. United States, 341 F.3d 193 (3d Cir. 2003).
If a court “consider[s] matters extraneous to the pleadings” on a motion for judgment on the pleadings, then the motion must be converted into one for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Even so, a court may consider (1) exhibits attached to the complaint, (2) matters of public record, and (3) all documents integral to or explicitly relied on in the complaint, even if they are not attached, without converting the motion into one for summary judgment. Mele v. Fed. Rsrv. Bank of New York, 359 F.3d 251, 256 (3d Cir. 2004), as amended (Mar. 8, 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
c. Discussion
i. An Employment Relationship Under Title VII, the ADA, and the PHRA
Juniper argues that dismissal of Plaintiff's claims is appropriate because Plaintiff has failed to sufficiently plead an employment relationship between it and Plaintiff. Juniper argues that Plaintiff does not allege that she was hired by Juniper and Plaintiff's contention that Juniper was her employer contradicts her allegations that Plaintiff did not undergo an interview with Juniper to keep her job and that she was fired before any interview occurred. (ECF No. 18) at 2. Plaintiff responds that she alleged sufficient facts to establish an employment relationship. (ECF No. 24) at 8-9.
In her brief in opposition to the motion to dismiss, Plaintiff attempts to include a new theory of liability for Juniper's failure to hire her. (ECF No. 24) at 11-12. Pleadings cannot be amended through briefing and this alternative theory will not be addressed herein. See Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”).
As a threshold matter, a plaintiff asserting claims under Title VII, the ADA, and the PHRA, must allege an employment relationship with the defendant. See 42 U.S.C. §§ 2000e, 2000e-2; 42 U.S.C. §§ 12111(a), 12112; 43 Pa. Stat. Ann. §§ 954, 955. To determine the existence of an employment relationship, courts apply the multifactor test set forth in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). See Covington v. Int'l Ass'n of Approved Basketball Offs., 710 F.3d 114, 119 (3d Cir. 2013) (applying the Darden factors to Title VII claims); Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440, 448-450 (2003) (applying the Darden factors to an ADA claim); Atkinson v. LaFayette Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006) (“Claims under the PHRA are interpreted coextensively with [its federal counterparts like Title VII and the ADA].”) (citing Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)).
Darden requires the court to conduct an inquiry into “the hiring party's right to control the manner and means by which the product is accomplished” by considering the following nonexhaustive factors:
the skill required [for the individual's work]; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.Nationwide Mut. Ins. Co., 503 U.S. at 323-324.
No single factor is determinative and while courts generally concentrate on “which entity paid the employee's salaries, hired and fired them, and had control over their daily employment activities[,] . . . all of the incidents of the relationship must be assessed and weighed[.]” Faush v. Tuesday Morning, Inc., 808 F.3d 208, 214 (3d Cir. 2015) (citations and internal quotation marks omitted). “As demonstrated by the factors themselves, the inquiry is a fact-intensive one and ill-suited to resolution on the pleadings.” Clemente v. Allstate Ins. Co., 647 F.Supp.3d 356, 375 (W.D. Pa. 2022) (citation omitted).
While Juniper argues that Plaintiff admits she was never interviewed for her position and was fired before an interview occurred, this alone does not determine whether an employment relationship exists at this procedural juncture, and Plaintiff has otherwise sufficiently alleged an employment relationship. According to Plaintiff, Juniper purchased Senior Living Corporation in March 2021 and absorbed Senior Living Corporation's employees - including her - as its own. Plaintiff continued working at Senior Living Corporation after Juniper acquired it until she was terminated in July 2021. Plaintiff further alleges that Juniper controlled what work she performed, the timing and location of her work, and withheld taxes from Plaintiff's payments. It is therefore plausible that discovery will reveal that Juniper and Plaintiff were in an employment relationship. Because these issues involve fact-intensive inquires, the question of what entity owned the business during Plaintiff's employment, whether any agency relationship existed between Juniper and Senior Living Corporation, and whether and when Juniper “absorbed” Senior Living Corporation's employees, will indeed be developed during fact discovery, and Juniper is free to raise any related arguments on summary judgment.
d. Conclusion
For the reasons above, it is respectfully recommended that Juniper's motion to dismiss (ECF No. 17) be denied.
Under 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, objections to this report and recommendation are due February 21, 2024. Unless otherwise ordered by the District Judge, a response to an objection is due fourteen days after the service of the objection. Failure to file timely objections waives any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983)). See Equal Emp. Opportunity Comm'n v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing the standard of appellate review when no timely and specific objections are filed as limited to review for plain error).
Honorable Marilyn J. Horan, United States District Judge