Nicholas Malfitano Apr. 13, 2016, 9:00am


PHILADELPHIA -- A Newtown Square continuing care facility has won its motion for a partial dismissal of a plaintiff’s discrimination claims under both the Americans with Disabilities Act (ADA) and Pennsylvania Human Relations Act (PHRA).

On Thursday, Judge Cynthia M. Rufe granted White Horse Village Inc.'s motion to dismiss the aforementioned claims made by Marlene McIntosh, who has been employed by White Horse Village as a licensed practical nurse (LPN) since 2010.

McIntosh’s employment began on a per-diem basis in September of that year, and transitioned into a full-time role three months later, in December 2010. Though full-time LPNs at White Horse Village usually work on Sundays, McIntosh said she was granted a religious exemption to attend regular services on Sundays.

In May 2014, McIntosh requested and was approved for Family and Medical Leave Act (FMLA) leave so she could undergo surgery on her foot. She was on medical leave until Aug. 6, 2014, when she returned to work as a full-time employee.

When McIntosh returned, she began working under a new Director of Nursing, Noreen Beam, who allegedly told McIntosh that all nursing staff were now required to work every other weekend -- and her request for a religious accommodation was denied. McIntosh also alleged she was “treated rudely” and “suffered pre-textual discipline” under Beam. Specifically, because McIntosh was unwilling to work every other Sunday, she returned to per diem status in November 2014 and currently remains a per diem employee to this date.

After filing an Equal Employment Opportunity Commission (EEOC) complaint subsequent to these events and being given a right-to-sue letter by the agency in return, McIntosh filed a lawsuit against White Horse Village in September, alleging discrimination through “religious discrimination, religious-based retaliation, and failure to accommodate her religion; race discrimination and retaliation; violations of the FMLA; violations of the ADA; and violations of the PHRA.”

In response, White Horse Village moved to dismiss the ADA and PHRA violation counts on the basis that “those claims were not procedurally exhausted through the EEOC and PHRC processes as required by statute."

“Defendant argues that [McIntosh] did not raise the issue of disability-based discrimination in her EEOC charge. Therefore, defendant argues, plaintiff’s ADA claims and disability-based PHRA claims are outside the scope of the administrative charge, and plaintiff’s disability-based discrimination and retaliation claims must be dismissed,” Rufe wrote.

The judge said though McIntosh filled out the EEOC report form with notes for “race,” “religion,” “retaliation” and “other”-based discrimination, she did not specifically note “disability”-related discrimination, and “failed to mention any disability or disability-based discrimination or retaliation in her narrative description of the alleged discrimination against her."

“In the [EEOC] charge, plaintiff does not describe the reason for her medical leave of absence, nor does she describe any disability she suffers or is perceived as having, and she does not at any point indicate that she is asserting a violation of her rights under the ADA,” Rufe wrote. “Given the scant information provided in the charge, one cannot even infer… that plaintiff’s leave was connected to her own medical needs, much less that she had a disabling medical condition as defined by the ADA.

“Plaintiff simply does not allege any facts in the Charge from which the EEOC could infer that plaintiff was complaining of disability-based discrimination, Because the Court cannot find, on the basis of the charge and the facts alleged in the amended complaint, that these claims were raised and investigated during the administrative complaint process, they must be dismissed.”

Though White Horse Village won dismissal of the ADA and PHRA discrimination claims, they did not seek to dismiss McIntosh’s remaining discrimination claims.

The plaintiff is represented by Ari Risson Karpf and Zachary J. Zahner of Karpf Karpf & Cerutti in Bensalem.

The defendant is represented by of Andrew P. Dollman and Glenn R. Davis of Latsha Davis & McKenna in Mechanicsburg.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-05157

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com.

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