Failure to Exhaust Administrative Remedies
The Eastern District of Pennsylvania recently dismissed Plaintiff’s claim for disability discrimination and claim for retaliation because she failed to exhaust her administrative remedies. McIntosh v. White Horse Vill., Inc., 176 F. Supp. 3d 480 (E.D. Pa. 2016).
Plaintiff alleged religious discrimination, racial discrimination, disability discrimination, and retaliation in her Amended Complaint. In McIntosh, Plaintiff worked as a Licensed Practical Nurse (“LPN”) at a retirement home. Full time LPNs are supposed to work on Sundays. She requested an accommodation to be excused from working on Sundays because she wanted to participate in religious services on those days. She was provided this accommodation. Later, she requested and received an FMLA leave for her surgery. Upon returning from her leave, she requested an accommodation to be excused from working on Sundays. The new Director of Nursing denied this request. Plaintiff alleges that she had to step down from her full time position as an LPN to per diem to be able to attend services on Sundays. In Plaintiff’s Amended Complaint that she filed with the Equal Employment Opportunity Commission (EEOC), she alleged religious discrimination and retaliation, race discrimination and retaliation, violations of the FMLA, violations of the ADA, and violations of the PHRA. Defendant moved to dismiss Plaintiff’s counts under the ADA and PHRA, on the basis that those claims were not procedurally exhausted.
The Court dismissed the claims for disability discrimination and retaliation because the Plaintiff failed to exhaust administrative remedies. The Court reasoned that Plaintiff failed to claim disability discrimination in her Charge to the EEOC. Further, she did not have anything in her Charge to the EEOC that would lead the Court to infer that she was alleging a disability discrimination.