NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

 .

: 

ISABEL LEONE, : Civil Action No. 11-3957 (ES) 

: 

Plaintiff, : OPINION

: 

v. : 

: 

NORTH JERSEY ORTHOPAEDIC : 

SPECIALISTS, P.A., et al., : 

: 

Defendants. : 

 : 

SALAS, DISTRICT JUDGE

Pending before this Court is North Jersey Orthopaedic Specialists, P.A.’s (“Defendant” or 

“NJOS”) motion to dismiss Isabel Leone’s (“Plaintiff”) Complaint pursuant to Fed. R. Civ. P. 

12(b)(6). (D.E. 7). The Court has jurisdiction under 28 U.S.C. § 1331. The Court has 

considered the parties’ submissions in support of and in opposition to the instant motion, and 

decides the matter without oral argument pursuant to Fed. R. Civ. P. 78(b). For the reasons set 

forth below, the Court grants Defendant’s motion as to the First, Second, and Fourth Counts in 

Plaintiff’s Complaint, but the Court denies Defendant’s motion as to Plaintiff’s Third Count and 

as to damages. 

I. Background 

Plaintiff alleges that in October 2003, she began working as an employee at NJOS. 

(Compl. ¶¶ 2, 12). From that time until a few months before her April 4, 2009 termination, 

Plaintiff was afforded an accommodation—leaving early to see her doctor to undergo blood 

treatment—for her medical condition, Protein S. Deficiency, a genetic blood clotting disorder. 

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(Id. ¶¶ 9, 12-13). Despite her diagnosis, Plaintiff alleges that “at all times relevant Plaintiff was, 

and is, fully capable of performing all aspects of her job . . . . [and] throughout her employment, 

Plaintiff’s performance consistently met Defendant’s reasonable expectations.” (Id. ¶¶ 9-11). 

Plaintiff alleges that, despite being an excellent employee, certain members of NJOS 

treated her unfairly because she had to travel to her doctor’s office often for treatment. 

(Id. ¶ 14). As an example, Plaintiff avers that in May 2008, she was not chosen to partake in 

MRI training. (Id. ¶ 15). When Plaintiff confronted Dr. Lee, an owner of NJOS and a member 

of its upper management, (id. ¶ 29), Dr. Lee stated, “[b]ecause you have to go to the doctor every 

Thursday, we don’t need a disruption in the MRI scheduled [sic],” and “[y]ou’re too old for 

this . . . . We don’t know if you’ll be around long enough to live out the $3000 it costs to train 

you.” (Id. ¶¶ 16-17). 

Plaintiff then requested a transfer. Initially, an agreement was made that Plaintiff would 

be transferred to the Closter office to work three half days—one being Thursday—so that she 

could see her oncologist/hematologist. (Id. ¶ 18). However, about three months before her 

termination, Plaintiff was told that she would have to work in the Englewood office on 

Thursdays, preventing her from attending her appointments. (See id. ¶ 19). When Plaintiff 

reminded Dr. Lee that she had to see her doctor on Thursday, Plaintiff alleges that Dr. Lee stated, 

“‘that’s your problem’ and that [Plaintiff] had to ‘figure it out.’” (Id. ¶ 20). Plaintiff also alleges 

that Dr. Lee said, “[g]o to Englewood on Thursdays or quit, I don’t care.” (Id. ¶ 21). 

Subsequently, Plaintiff complained to Dr. Brief,1 who “initially stated that if NJOS was 

given advance notice, it wouldn’t be a problem for Ms. Leone to leave for her scheduled medical 

appointments.” (Id. ¶ 22). Then, Plaintiff was advised by Dr. Archer that Dr. Lee said, “[i]f she 

 

1

 Drs. Brief and Archer are not mentioned elsewhere in the Complaint; therefore, the Court is unable to determine 

how Drs. Brief and Archer relate to Dr. Lee or Plaintiff. 

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can’t comply with our requirement that she work at Englewood, fire her, I don’t care about any 

agreement made a year ago.” (Id. ¶ 23). Three days later, on April 4, 2009, Plaintiff was told by 

Jennifer Holowach, Director of Human Resources for NJOS, that she was being let go because 

the company “can no longer accommodate your needs, and we suggest you find another job that 

could offer more flexibility because of your condition.” (Id. ¶ 24). Plaintiff alleges that she was 

replaced in her position by another individual, (id. ¶ 25), who was “significantly younger than 

she.” (Id. ¶ 45). 

On October 30, 2009, Plaintiff filed a written charge of age discrimination with the Equal 

Employment Opportunity Commission (“EEOC”). (Id. ¶ 7). The EEOC found reasonable cause 

to believe that Defendant violated the ADA. (Id. ¶ 8). However, because the EEOC was unable 

to effectuate a settlement, it issued a Notice of Right to Sue on April 27, 2011. (Id.). On July 

11, 2011, Plaintiff filed the instant Complaint, including a First Count under the Americans with 

Disabilities Act of 1990 (“ADA”) for disability discrimination and/or record of disability 

discrimination, (id. ¶¶ 27-31); a Second Count under the ADA for retaliation/termination 

(id. ¶¶ 32-39); a Third Count under the Age Discrimination in Employment Act of 1967 

(“ADEA”) because Plaintiff is over the age of 40 and because she alleges that, following her 

termination from NJOS, she was replaced by another employee significantly younger than she, 

(id. ¶¶ 40-45); and a Fourth Count under Title II of the Genetic Information Nondiscrimination 

Act of 2008 (“GINA”) because Plaintiff alleges that “Defendants used Plaintiff’s genetic 

information to make unfavorable, or discriminatory, decisions as part of Plaintiff’s employment” 

based on Plaintiff’s Protein S. Deficiency. (Id. ¶¶ 46-49). On September 6, 2011, Defendant 

moved to dismiss Plaintiff’s Complaint on the grounds discussed below. 

 

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II. Legal Standard 

A. Motion to Dismiss for Failure to State a Claim: Rule 12(b)(6) 

On a motion to dismiss pursuant to Rule 12(b)(6), “courts are required to accept all wellpleaded allegations in the complaint as true and draw all reasonable inferences in favor of the 

non-moving party.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); Burrell v. 

DFS Servs., LLC, 753 F. Supp. 2d 438, 440 n.1 (D.N.J. Dec. 6, 2010) (holding that contradictory

factual assertions on the part of defendants must be ignored). Courts must “determine whether,

under any reasonable reading of the complaint, the Plaintiff may be entitled to relief.” Pinker v. 

Roche Holding Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002). “Factual allegations must be enough 

to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 555 (2007), and the 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) 

(citation omitted). Determining whether the allegations in a complaint are “plausible” is “a 

context-specific task that requires the reviewing court to draw on its judicial experience and 

common sense.” Id. at 679. 

IV. Discussion 

A. Exhaustion 

Defendant first argues that because Plaintiff failed to bring an EEOC charge within 180 

days of the alleged discriminatory acts, Plaintiff failed to exhaust her administrative remedies 

and therefore Plaintiff’s ADA, ADEA, and GINA claims should be dismissed. (Def. Moving Br. 

at 6 (citing 42 U.S.C. §§ 2000e, 2000e-5(e)(1), 12117(a) (180 days to file an EEOC charge in the 

ADA context); 29 U.S.C. § 626(d)(1)(A) (ADEA claims); 29 C.F.R. § 1635.10 (GINA claims))). 

In opposition, Plaintiff argues that the 180-day timeframe does not apply; instead, the charge was 

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subject to a 300-day window because Plaintiff submitted a “Dual Charge Filing Form,” which 

extends the clock for charges filed with the concomitant state entity, here, the New Jersey 

Department of Civil Rights. (Pl. Opp. Br. at 5-7 (citing 29 U.S.C. § 626(d)(2); 42 U.S.C. § 

2000e-5)). In support of her position, Plaintiff attaches—to her opposition brief, not to the 

Complaint—a purported copy of the Dual Charge Filing Form. (Pl. Opp. Br. Ex. B, Charging 

Party Determination as to Charge Processing by NJDCR dated Dec. 16, 2009 and Addendum to 

Charge of Discrimination dated Dec. 16, 2009). 

To decide a 12(b)(6) motion, a court considers the allegations in the complaint, 

documents attached to the complaint, documents “integral to and/or . . . explicitly relied upon by 

the . . . complaint,” and matters of public record. Winer Family Trust v. Queen, 503 F.3d 319, 

328 (3d Cir. 2007). If a court considers additional, extrinsic materials, the Court must convert 

the motion to one for summary judgment. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 

12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, 

the motion must be treated as one for summary judgment under Rule 56.”). 

 At this time, the Court will not convert Defendant’s motion to one for summary 

judgment, because the parties have not briefed this motion with the benefit of complete 

discovery, and therefore the Court will not consider the Dual Charge Filing Form, which Plaintiff 

appends to her opposition brief, and thus falls outside of the pleadings. Additionally, this 

Opinion affords Plaintiff the opportunity to amend her Complaint. Therefore, the Court need 

not, at this time, reach the issue of which time-frame applies to Plaintiff’s EEOC charge, because 

the Court does not yet know which Counts Plaintiff will choose to pursue following this Opinion, 

how Plaintiff will plead those Counts, and whether Plaintiff will determine that the Dual Charge 

Filing Form is, in fact, integral enough to attach to the Complaint. 

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B. Elemental Analysis 

1. ADA: First and Second Counts 

In her First and Second Counts, Plaintiff alleges that NJOS violated the ADA by 

discriminating against Plaintiff on the basis of her alleged disability and her record of an alleged 

disability. (Compl. ¶¶ 27-39). Defendant argues that Plaintiff has failed to plausibly plead facts 

establishing a “disability” or the requisite “record” to sustain ADA claims under Rule 12(b)(6). 

(Def. Moving Br. at 7-8). In opposition, Plaintiff argues that she has adequately pleaded the 

requisite elements by alleging that she suffered from Protein S. Deficiency, that her employer 

was aware of this disability and provided Plaintiff accommodation, but that Defendant later 

withdrew the accommodation and terminated her based on her disability. (Pl. Opp. Br. at 7-8). 

To establish a claim under the ADA, Plaintiff, as a threshold matter, must plausibly plead 

that she has a “disability.” Marinelli v. City of Erie, Pa., 216 F.3d 354, 359 (3d Cir. 2000). 

Under 42 U.S.C. § 12102(1), a disability is: “(A) a physical or mental impairment that 

substantially limits one or more major life activities of such individual; (B) a record of such an 

impairment; or (C) being regarded as having such an impairment.” Accordingly, for 12(b)(6) 

purposes, Plaintiff must plead the following three elements: (1) that Plaintiff suffers from a 

“physical or mental impairment”; (2) that the impairment limits an activity that constitutes a 

“major life activity” under the ADA; and (3) the limitation is “substantial.” 42 

U.S.C. § 12102(1)(A). 

As to element (1), Plaintiff alleges that her “physical impairment” is Protein S. 

Deficiency, a genetic blood clotting disorder. (Compl. ¶¶ 9-10). A physical impairment is: 

[A]ny physiological disorder or condition, cosmetic disfigurement, or anatomical 

loss affecting one or more of the following body systems: neurological; 

musculoskeletal; special sense organs; respiratory, including speech organs; 

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cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; 

skin; and endocrine . . . . 

Bragdon v. Abbott, 524 U.S. 624, 632 (1998) (quoting 45 C.F.R. § 84.3(j)(2)(i)). In Bragdon, 

the Supreme Court also stated that in issuing the regulations, the Department of Health, 

Education, and Welfare “decided against including a list of disorders constituting physical or 

mental impairments, out of concern that any specific enumeration might not be comprehensive.” 

Id. at 633 (quoting 42 Fed. Reg. 22685 (1977), reprinted in 45 C.F.R. pt. 84, App. A, p. 334 

(1997)). Based upon the reasoning in Bragdon, this Court concludes that Protein S. Deficiency 

qualifies under the broad definition of disability for purposes of 12(b)(6). However, the more 

important question is whether Plaintiff sufficiently alleges that Protein S. Deficiency 

substantially limits a major life activity. The Court finds that Plaintiff has failed in this respect. 

As to elements (2) and (3), the Court is unable to determine, based on Plaintiff’s 

allegations, what major life activity her Protein S. Deficiency substantially affects. At first, 

Plaintiff appears to allege that working an uninterrupted work-week is the major life activity at 

issue. (See Compl. ¶ 18 (“Starting in May 2009, an agreement was made that Ms. Leone would 

be transferred to the Closter office to work three half days, one being Thursday, so that she was 

able to see her oncologist/hematologist on Thursday.”), ¶ 24 (“Three days later, on April 4, 2009 

Ms. Leone was told . . . that [she] was being let go because the company ‘can no longer 

accommodate your needs, and we suggest you find another job that could offer more flexibility 

because of your condition.’”)). In contradictory fashion, Plaintiff then alleges that “[d]espite her 

disability, at all times relevant Plaintiff was, and is, fully capable of performing all aspects of her 

job at [NJOS].” (Compl. ¶ 10). If Plaintiff’s alleged “major life activity” is working, then her 

allegation—that she is and was “fully capable of performing all aspects of her job”—directly 

contradicts the theory that Plaintiff’s Protein S. Deficiency “substantially affected” her ability to 

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engage in the major life activity at issue. Other than Plaintiff’s allegations that she required 

accommodations to attend doctor’s appointments—i.e., that Plaintiff’s Protein S. Deficiency 

affected her ability to work—the Court cannot find any allegations in the Complaint that could 

reasonably be viewed as supporting her physical impairment’s effect on a major life activity. 

Accordingly, Plaintiff’s First and Second Counts under the ADA fail under 12(b)(6) because she 

insufficiently alleges a “disability” under the statute.2

2. ADEA: Third Count 

Other than Defendant’s argument that Plaintiff’s ADEA claim is barred for failure to 

exhaust administrative remedies within the allotted time (addressed above), and Defendant’s 

arguments related to damages under the ADEA (discussed below), Defendant does not make 

arguments on the elements of Plaintiff’s ADEA claim. (See Def. Moving Br. at 10). 

Accordingly, the Court will not address the elements of that claim, and the Third Count survives 

Defendant’s motion to dismiss. 

3. GINA: Fourth Count 

In her Fourth Count, Plaintiff alleges that NJOS violated GINA by discriminating against 

her on the basis of her genetic blood disorder when NJOS denied Plaintiff time off and job 

assignments and then fired her. (Compl. ¶¶ 46-49). Defendant argues that Plaintiff’s GINA 

claim fails because “[s]he has not alleged any facts showing that [NJOS] obtained any 

information about her ‘genetic tests’ and that [NJOS] somehow discriminated against her upon 

learning the results of any such tests.” (Def. Moving Br. at 9). Additionally, Defendant argues, 

“she has not pleaded any facts that could plausibly show employment discrimination based on 

 

2

 Plaintiff’s “record discrimination” claims under the ADA fail for the same reason. A record claim requires 

Plaintiff to plausibly plead that Plaintiff “had a ‘history of, or [had] been misclassified as having, an impairment that 

substantially limited a major life activity.” Eshelman v. Agere Sys., Inc., 554 F.3d 426, 437 (3d Cir. 2009) (quoting 

Sorensen v. Univ. of Utah Hosp., 194 F.3d 1084, 1087 (10th Cir. 1999) (citing 29 C.F.R. § 1630.2(k))). Because a 

record claim requires the same threshold showing of “disability,” the Court also dismisses Plaintiff’s record claims. 

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her ‘genetic information.’” (Def. Reply Br. at 5 (quoting 42 U.S.C. § 2000ff-1(a)(1)). 

Conversely, Plaintiff argues that she has “alleged harassment because of genetic information 

relating to her Protein S. Deficiency.” (Pl. Opp. Br. at 16). Moreover, “Defendant’s refusal to 

continue with an accommodated work schedule constitutes a hostile or offensive work 

environment, [and] the demeaning comments by her employers . . . as well as the failure to 

provide training and her termination, clearly are violations of GINA.” (Id. at 17 (citing Compl. 

¶¶ 16, 20, 21, 23, 24)). 

Under GINA’s provision against “[d]iscrimination based on genetic information,” 42 

U.S.C. § 2000ff-1(a), “[i]t shall be an unlawful employment practice for an employer—” 

(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to 

discriminate against any employee with respect to the compensation, terms, 

conditions, or privileges of employment of the employee, because of genetic 

information with respect to the employee; or 

(2) to limit, segregate, or classify the employees of the employer in any way that 

would deprive or tend to deprive any employee of employment opportunities or 

otherwise adversely affect the status of the employee as an employee, because of 

genetic information with respect to the employee. 

Section 2000ff(4)(A) defines “genetic information” as “information about—(i) such individual’s 

genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the 

manifestation of a disease or disorder in family members of such individual.” The Court 

therefore reviews the Complaint to determine whether Plaintiff has pleaded and plausibly 

supported, at least, (1) that she was an employee; (2) who was discharged or deprived of 

employment opportunities; (3) because of information from Plaintiff’s genetic tests. 

 Although Plaintiff has pleaded the requisite legal conclusions supporting the statutory 

requirements above, the Court finds that Plaintiff has failed to plausibly support these legal 

conclusions. Plaintiff alleges that she was “[d]iscriminated against by Defendants, i.e., denied 

time off, lost job assignments, and terminated because of her genetic blood disorder,” 

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(Compl. ¶ 47); that “Defendants used Plaintiff’s genetic information to make unfavorable, or 

discriminatory, decisions as part of Plaintiff’s employment,” (id. ¶ 48); and “Defendants’ [sic] 

violated GINA which prohibits workplace discrimination, when Defendants terminated Plaintiff 

due to her genetic blood clotting disorder; Protein S. Deficiency.” (Id. ¶ 49). 

 Plaintiff provides plausible support for elements (1) and (2), but fails to plausibly support 

element (3), that she was discriminated against “because of” information from Plaintiff’s genetic 

tests. Plaintiff provides plausible support for element (1)—that she was an employee—

throughout her Complaint. (See, e.g., Compl. ¶ 1). She also provides plausible support for 

element (2)—that she was discharged or deprived of employment opportunities. (See id. ¶ 15 

(“[I]n May 2008, when the company chose employees to partake in MRI training, Ms. Leone 

was not chosen.”), ¶ 24 (stating that Ms. Leone was terminated on April 4, 2009)). 

Plaintiff’s support for element (3) is insufficient. Plaintiff alleges that Dr. Lee told her 

that the reason she was passed over for MRI training was that “you have to go to the doctor 

every Thursday, [and] we don’t need a disruption in the MRI scheduled [sic].” (Id. ¶ 16). 

Although this allegation demonstrates that Plaintiff was passed over because she needed to 

attend doctor’s appointments, the allegation fails to plausibly support the theory that Dr. Lee 

based his decision on the results of genetic tests. The link between Dr. Lee’s decision and 

Plaintiff’s Protein S. Deficiency is even less clear in light of Plaintiff’s allegation that she was 

“[s]urprised by this statement [by Dr. Lee in Paragraph 16 of the Complaint], and when Ms. 

Leone followed up on Dr. Lee’s statement, his response became even more damaging: ‘You’re 

too old for this’ and ‘We don’t know if you’ll be around long enough to live out the $3000 it 

costs to train you.’” (Id. ¶ 17 (emphasis added)). As such, Dr. Lee’s statement appears to 

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provide an age-based—as opposed to a genetic-based—rationale for the decision not to select 

Plaintiff for MRI training. 

Similarly, Plaintiff alleges that Human Resources Director Jennifer Holowach provided 

Plaintiff with the following rationale for Plaintiff’s termination: “[T]he company ‘can no longer 

accommodate your needs, and we suggest you find another job that could offer more flexibility 

because of your condition.’” (Id. ¶ 24). In the next Paragraph, Plaintiff alleges that she “was 

replaced in her position by another individual.” (Id. ¶ 25). Plaintiff later adds, “[a]fter her illegal 

termination, Plaintiff was replaced by another employee significantly younger than she.” 

(Id. ¶ 45). Plaintiff again blurs the age-based and gene-based theories of liability. To be sure, it 

is possible to allege that one’s termination was based on age and the results of genetic tests of 

which the employer was aware, but it is critical at the pleading stage for Plaintiff to provide 

plausible factual support for each alleged theory of liability. Here, Plaintiff’s Complaint lacks 

clarity on which facts support which claims, and Plaintiff offers potentially conflicting rationales 

for being passed over for MRI training and for being terminated. See Burrell v. DFS Servs., 

LLC, 753 F. Supp. 2d 438, 440 n.1 (D.N.J. 2010) (“In keeping with the Court’s duty to assume 

the veracity the allegations contained in the Complaint when deciding the pending Motion to 

Dismiss, Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997), any contradictory 

factual assertions on the part of Defendants have not been credited.”). Accordingly, the Court 

seeks greater clarity from Plaintiff, and dismisses Plaintiff’s GINA claim without prejudice, with 

leave to amend. 

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C. Damages 

1. Second Count: ADA Retaliation 

Defendant argues that even if Plaintiff adequately pleaded her ADA retaliation claim, 

Plaintiff still would not be entitled to compensatory or punitive damages, because a plaintiff 

suing for retaliation under 42 U.S.C. § 12203 can only obtain equitable relief and back pay. 

(Def. Moving Br. at 9-10 (citing Kramer v. Banc of Am. Sec., LLC, 355 F.3d 961, 965 (7th Cir. 

2004) (“[T]he 1991 Civil Rights Act does not expand the remedies available to a party bringing 

an ADA retaliation claim against an employer and therefore compensatory and punitive damages 

are not available.”))). In opposition, Plaintiff argues that the Third Circuit is silent on the issue 

of whether compensatory and punitive damages are available for ADA retaliation claims, and 

therefore the Court should apply the standard used in the ADA discrimination context generally: 

that compensatory and punitive damages are appropriate where the employer has engaged in 

intentional discrimination and has done so with malice or reckless indifference to the federally 

protected rights of the plaintiff. (Pl. Opp. Br. at 19-20 (citing Kolstad v. Am. Dental Ass’n, 527 

U.S. 526, 534-35 (1999))). 

Because it is unclear at this point in the litigation whether Plaintiff can adequately plead a 

“disability” under the ADA, or whether Plaintiff can adequately plead that the related 

discrimination rose to the level of malice or recklessness, the Court need not, nor will it, decide 

whether particular damages attach to a plausibly pleaded claim under the ADA. Therefore, the 

Court denies Defendant’s request, at this stage, to dismiss Plaintiff’s claims for compensatory 

and punitive damages for retaliation under the ADA.3

 

3

 The Court does note, however, that the weight of authority from district courts within the Third Circuit have 

followed the Seventh Circuit’s holding in Kramer that compensatory and punitive damages are not available for 

ADA retaliation claims. See, e.g., Kozempel v. Grand View Hosp., No. 10-6839, 2011 WL 1196851, at *3 (E.D. Pa. 

Mar. 30, 2011) (“While federal courts are divided on the question, a significant number of cases at both the appellate 

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2. Third Count: ADEA 

In her Complaint, Plaintiff requests damages for pain and suffering as well as punitive 

damages under the ADEA. In her opposition brief, Plaintiff concedes that these damages are 

unavailable, and instead asks to amend to add a claim for “liquidated damages” under 29 U.S.C. 

§ 262(b). (Pl. Opp. Br. at 21). Liquidated damages are available where Plaintiff adequately 

alleges that violation of the ADEA was “willful.” 29 U.S.C. 626(b) (“[L]iquidated damages 

shall be payable only in cases of willful violations of this chapter.”). Because the Court grants 

Plaintiff leave to amend the claims dismissed in this Opinion, the Court will also grant Plaintiff 

leave to amend her claims for damages in conformance with the relevant statutes and case law. 

See Phillips, 515 F.3d at 228 (“[I]n the event a complaint fails to state a claim, unless 

amendment would be futile, the District Court must give a plaintiff the opportunity to amend her 

complaint.”). The Court therefore denies this portion of Defendant’s motion as moot. 

V. Conclusion 

Based on the above, the Court GRANTS in part and DENIES in part Defendant’s motion. 

The Court grants Defendant’s motion as to the First, Second, and Fourth Counts in Plaintiff’s 

Complaint, but the Court denies Defendant’s motion as to Plaintiff’s Third Count and as to 

Plaintiff’s claims for damages. The Court dismisses the First, Second, and Fourth Counts 

without prejudice and grants Plaintiff leave to amend the Complaint—consistent with this 

Opinion—within thirty days. 

s/Esther Salas x 

Esther Salas, U.S.D.J.

 

and trial court level have held that the anti-retaliation provisions of the ADA do not authorize the award of 

compensatory and punitive damages, including the cases in the Eastern and Western District of Pennsylvania.”); 

Baker v. PPL Corp., No. 09-0428, 2010 WL 419417, at *6-7 (M.D. Pa. Jan. 29, 2010); Sabbrese v. Lowe’s Home 

Ctrs., Inc., 320 F. Supp. 2d 311, 331-32 (W.D. Pa. 2004). 

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