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Semenko v. Wendy's Int'l, Inc.

Semenko v. Wendy's Int'l, Inc.

United States District Court for the Western District of Pennsylvania

April 12, 2013, Decided; April 12, 2013, Filed

2: 12-cv-0836

Opinion

MEMORANDUM OPINION AND ORDER OF COURT

Before the Court for disposition is the MOTION TO STRIKE, with brief in support, filed by Defendant, Wendy's International, Inc. ("Wendy's") (ECF Nos. 5 and 6), the RESPONSE in opposition filed by Plaintiff, Patricia Semenko, individually, and on behalf of others similarly situated, ("Semenko") (ECF No. 9), and the REPLY filed by Wendy's (ECF No. 10). The matter has been thoroughly briefed and is ripe for disposition. For the reasons that follow, the Motion to Strike will be granted.

Factual Background

Semenko initiated this lawsuit on June 19, 2012, by the filing of a three-count Complaint in Class Action in which she raised both individual and class claims under the Americans with Disability Act, as amended ("ADA"), 42 U.S.C. §§ 1201, et seq., and the Pennsylvania Human Relations Act, as amended ("PHRA"),  [*2] 43 Pa. Stat. Ann. §§ 951, et seq. and seeks "declaratory, injunctive, and compensatory relief from defendants (sic), Wendy's International, Inc., for denial of employment, failure to accommodate on the basis of actual, and regarded as or record of disability." Complaint, at ¶ 1.

Semenko alleges that she worked for Wendy's for approximately thirty (30) years, first in hourly and later in managerial positions. Semenko suffers from degenerative arthritis and in January 2007 took a disability leave to treat her cervical radiculopathy and lower back pain, which leave was approved for long-term disability benefits sponsored by her employer. According to the Complaint, on or about November 14, 2007, Semenko was released by her treating physician to return to work full-time, with restrictions. She requested to return to work with accommodations, but Wendy's denied her request. Her employment with Wendy's was terminated on January 11, 2008. Id. at ¶¶ 7 - 14.

The Complaint states that Semenko's "action is brought and may be properly maintained as a class action pursuant to F.R.C.P. 23." Id. at ¶ 27. Distilled to its essence, Wendy's argument is that Semenko's class allegations:

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2013 U.S. Dist. LEXIS 52582 *; 27 Am. Disabilities Cas. (BNA) 1378; 2013 WL 1568407

PATRICIA SEMENKO, individually, and on behalf of others similarly situated, Plaintiff, v. WENDY'S INTERNATIONAL, INC., Defendant.

CORE TERMS

class member, accommodation, disability, allegations, class certification, class action, discovery, commonality, individualized, motion to strike, proposed class, argues, certification, prerequisites, adjudicating, individual claim, classwide, employees, damages, named plaintiff, predominance, adequacy, benefits, defenses, certify, parties, unlawful discrimination, representative party, district court, return to work