Diep v. Southwark Metal Manufacturing Company, CIVIL ACTION NO. 00-6136 (E.D. Pa. 3/19/2001)

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CATHERINE P. DIEP, Plaintiff, v. SOUTHWARK METAL MANUFACTURING COMPANY, JOHN LEINHAUSER; RICHARD WINDLE, FREDERICK D. TWEED, and MARTIN SIEDMAN, Defendants.

CIVIL ACTION NO. 00-6136.

United States District Court, E.D. Pennsylvania.

March 19, 2001.

MEMORANDUM

LOWELL A. REED, JR., Senior Judge.

Plaintiff claims damages for unlawful employment discrimination. Now before this Court is the partial motion of defendants Southwark Metal Manufacturing Company, John Leinhauser, Richard Windle, Frederick D. Tweed, and Martin Seidman¹ to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Document No. 7). Upon consideration of the motion, plaintiff's response, defendants' reply, the pleadings, and the record, the motion will be granted in part and denied in part.

Background

According to the allegations of the complaint, plaintiff was discharged on March 18, 1999, from her job as a billing clerk in the accounting department of defendant Southwark Metal Manufacturing Company ("Southwark"). Plaintiff alleges that she was fired because she was diagnosed with breast cancer.

Plaintiff filed a complaint with the Philadelphia Commission on Human Relations,² which was cross-filed with the Equal Employment Opportunity Commission ("EEOC"), pursuant to a work-sharing agreement between the two organizations. Plaintiff received a right-to-sue letter from the EEOC, and brought the instant action, alleging violations of Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the Pennsylvania Human Relations Act, 43 Pa. C.S. §§ 951, et. seq. ("PHRA"), as well as state common law claims.

Analysis

1. Standard of Review

Defendants have moved to dismiss a number of plaintiff's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that "the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted." The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the allegations contained in the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). "In a Rule 12(b)(6) motion, the court evaluates the merits of the claims by accepting all allegations in the complaint as true, viewing them in the light most favorable to the plaintiffs, and determining whether they state a claim as a matter of law." See Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997)); see also Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843 (1969).

Because the Federal Rules of Civil Procedure require only notice pleading, the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8 (a), and it is the defendant's burden to show that no claim has been stated. See Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839 (1991). A complaint will be dismissed only if, considering the allegations thereof, the plaintiff cannot prove any set of facts that would entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229 (1984) (holding that a motion to dismiss should be granted if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations"); Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957)).

Plaintiff concedes defendants' motion to dismiss as to Count II for negligent retention, Count III for negligent supervision, and Count IV for intentional infliction of emotional distress, and therefore those claims will be dismissed. I will thus focus my analysis on the remaining claims.

2. Count I — Americans with Disabilities Act

Defendants contend that the ADA does not apply to individuals, and that Count I therefore should be dismissed insofar as it alleges that the individual defendants violated the ADA. While the Court of Appeals for the Third Circuit has not addressed this precise question, it has held that individuals cannot be sued under Title VII, Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996), cert. denied, 521 U.S. 1129, 117 S.Ct. 2532 (1997), which defines eligible defendants identically to,³ and is interpreted consistently with, the ADA. See Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995) ("[T]he ADA, ADEA, and Title VII all serve the same purpose — to prohibit discrimination in employment against members of certain classes. Therefore, it follows that the methods and manner of proof under one statute should inform the standards under the others as well.").

The consensus view among district courts in this circuit is that individual liability cannot be imposed under the ADA. See Douris v. Brobst, No. 99-3357, 2000 U.S. Dist. LEXIS 1579, at *6 (E.D.Pa. Feb. 14, 2000); Schumacher v. Souderton Area Sch. Dist., No. 99-1515, 2000 U.S. Dist. LEXIS 563, at *9-11 (E.D.Pa. Jan. 21, 2000); Metzgar v. Lehigh Valley Hous. Auth., No. 98-3304, 1999 U.S. Dist. LEXIS 11908, at *9-10 (E.D.Pa. July 27, 1999); Fullman v. Philadelphia Int'l Airport, 49 F. Supp.2d 434, 441 (E.D.Pa. 1999); Brann v. Bergey's, Inc., No. 97-6921, 1998 U.S. Dist. LEXIS 4879, at *4 (E.D.Pa. Mar. 30, 1998); Saylor v. Ridge, 989 F. Supp. 680, 688-89 (E.D.Pa. 1998). Plaintiff cites to the contrary only one case from this circuit, and, given the number of district courts in this circuit that have lined up on the other side of the issue, that case is a rather lonely one. See Doe v. William Shapiro, Esquire, P.C., 852 F. Supp. 1246, 1252 (E.D.Pa. 1994).⁴

In light of the persuasive and rather overwhelming precedent holding that individuals cannot be liable under the ADA, I conclude that the individual defendants in this case cannot be subjected to suit under the ADA.

3. Count V — Title VII

Count V of plaintiff's complaint is perplexing. It is entitled "Violation of Title VII of the Civil Rights Act of 1964 by Defendant Southmark." The count alleges, in pertinent part, "Plaintiff's treatment by defendant and its managerial employees constitutes discrimination based on a perceived disability." (Complaint, at ¶ 69) (emphasis added). Title VII, of course, creates a cause of action for discrimination based on an individual's "race, color, religion, sex, or national origin." Disability is not among the enumerated bases for a Title VII suit, and therefore a claim for disability discrimination brought under Title VII cannot survive. The proper avenue for a disability discrimination suit is, of course, the Americans with Disabilities Act, which explicitly provides a legal remedy for discrimination on the basis of disability. See 42 U.S.C. § 12112 (a).⁵ Plaintiff has brought just such a claim in Count I of her complaint.

Undeterred, plaintiff persists in arguing that one can sue under Title VII for disability-based discrimination, suggesting that the issue is "one of first impression." I suppose that may be so, but only because no other plaintiff's attorney has been misguided enough to raise the issue before, and thus no federal court has had to rule on this frivolous assertion. And it gets worse; the single case plaintiff points to in support of her quixotic effort to establish a disability claim under Title VII contains the following observation: "Title VII does not provide a right against discrimination on the basis of disability." Houck v. City of Prairie Village, 912 F. Supp. 1428, 1434 (D.Kan. 1996).

I would be less concerned if this was all attributable to a typographical error or some oversight. But plaintiff's counsel have consciously defended a simple, legally indefensible proposition in the face of clear statutory language and precedent.⁶ I find this conduct troubling. This kind of litigious bluster taxes the scarce judicial resources of the nation's courts and undermines the public confidence in lawyers and the judicial system. Rule 11's signature requirement was designed to deter counsel from making these kinds of arguments; one cannot argue with a straight face that plaintiff's "legal contention[]" is "warranted by existing law or by a nonfrivolous argument." Fed.R.Civ.P. 11(b)(2). Plaintiff's counsel should consider themselves warned.

At any rate, it is clear that Count V cannot survive and must be dismissed.

4. Count VI — PHRA

Defendants contend that plaintiff's PHRA claim under Count VI is problematic in two respects. First, defendants argue that the PHRA claims against individual defendants should be dismissed because plaintiff failed to exhaust her administrative remedies. Second, defendants argue that plaintiff's PHRA claim must be dismissed because she availed herself of the protections of the Philadelphia Commission on Human Relations.

I note at the outset that individuals cannot be held liable under the PHRA's employment discrimination provision, 43 Pa. C.S. § 955(a). That provision is interpreted consistently with Title VII and the ADA which, as discussed above, do not allow for individual liability. See Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996). Thus, plaintiff cannot proceed on a claim of discrimination against the individual defendants under § 955(a).

However, individual defendants may be sued under a different provision of the PHRA that forbids "any person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice. . . ." 43 Pa. C.S. § 955(e); see Dici, 91 F.3d at 552. Defendants counter that plaintiff failed exhaust her administrative remedies on this claim, as required under in such ...