Opinion
Civil No. 4:18-CV-0060
10-30-2018
ANTOINETTE A. BAYLETS-HOLSINGER, Plaintiff v. THE PENNSYLVANIA STATE UNIVERSITY, Defendant
(Judge Brann)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
We are now called upon to evaluate for a second time the sufficiency of a pro se complaint filed by the plaintiff in this employment discrimination case. Antoinette A. Baylets-Holsinger initiated this civil action against her former employer, The Pennsylvania State University, by filing a complaint on January 9, 2018. (Doc. 1.) In that initial complaint, she alleged that Penn State subjected her to unlawful gender-based discrimination, retaliated against her and harassed her either because she was a whistle blower or because she had a disability, and perhaps interfered with her right to avail herself of her rights under the Family Medical Leave Act. It did not appear from this initial pleading that Penn State fired the plaintiff after a lengthy tenure at the university; rather, the plaintiff seemed to allege that the conditions of her employment became unbearable for a number of reasons, and eventually compelled her to resign involuntarily. Baylets-Holsinger then sought damages to compensate her for the defendant's alleged mistreatment of her. While this much was apparent from Baylets-Holsinger's initial complaint, just what Penn State or its agents were alleged to have done was uncertain from the plaintiff's allegations, which were laid out over 18 pages of single-spaced, unnumbered paragraphs; seemed to assume a degree of knowledge by the Court regarding a number of relevant facts; and frequently consisted of little more than legal labels or sweeping charges of "discrimination," "retaliation," or some other kind of mistreatment that was referred to simply as "the situation," (Doc. 1, p. 2), without ever providing relevant and specific factual allegations explaining the gist of her complaints. Baylets-Holsinger's initial complaint also failed to comport with basic pleading requirements prescribed by the Federal Rules of Civil Procedure and instead presented as an unwieldy and somewhat inscrutable collection of grievances and legal conclusions unsupported by an intelligible, straightforward factual narrative.
On March 19, 2018, Penn State filed a motion to dismiss the complaint pursuant to Rules 8, 10, and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 14.) Upon consideration of this motion we recommended that the motion be granted, but that the plaintiff be permitted to file an amended complaint that addressed the pleading defects which we identified and discussed. (Doc. 16.) The district court adopted this Report and Recommendation, (Doc. 19), and on June 20, 2018, the plaintiff filed an amended complaint in this action. (Doc. 20.)
This amended complaint improved upon Baylets-Holsinger's original complaint, but only marginally. The amended complaint seems to recite an array of federal civil rights violations under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq. ("Title VII"), the Americans With Disabilities Act, 42 U.S.C. §§ 12201 et seq., and the Family Medical Leave Act, 29 U.S.C. §§ 2601 et seq. The amended complaint is divided into four sections. The first section of the amended complaint, captioned "Discrimination and Harassment", alleges that the plaintiff was denied promotion opportunities given to male peers and was given a greater workload than her male peers. (Doc. 20, p. 2.) Baylets-Holsinger then alleges that she observed continued sexual harassment of several women by a male co-worker, activity which she reported to Human Resources staff in August and September of 2015. (Id.)
The amended complaint then contains a second section, captioned "Retaliation for complaint of Discrimination & Harassment." (Id., pp. 3-5.) In this second section of her amended complaint, Baylets-Holsinger states that approximately six weeks after she reported alleged sexual harassment to Human Resources staff, she was subjected to an adverse employment action when she was placed on an Performance Improvement Plan ("PIP") by her supervisor. (Id.) Baylets-Holsinger also asserts that she was subjected to heightened scrutiny of her time and attendance at work, even though other male co-workers were permitted to work on much less rigorous attendance schedules. (Id.) Baylets-Holsinger attributes this heightened scrutiny and adverse employment action to her reports of sexual harassment in the workplace. (Id.)
Baylets-Holsinger's amended complaint then contains a third section entitled "Retaliation for 'Whistleblowing.'" (Id., pp.5-6.) In this section of her amended complaint, the plaintiff alleges that despite her fear of further retaliatory discipline in May of 2016 she reported what she perceived as a $1,000,000 "unnecessary overspend." (Id.) According to Baylets-Holsinger two weeks later, in June of 2016, she was subjected to further retaliation in the form of formal disciplinary action brought against her by Penn State, disciplinary action which she characterizes as retaliatory and unjustified. (Id.) While Baylets-Holsinger's amended complaint contains this factual recital, notably missing from this component of her amended complaint is any allegation regarding the legal basis for this whistleblowing retaliation claim. (Id.)
Finally, Baylets-Holsinger alleges what appears to be a fourth cause of action, captioned "Medical Causation, FMLA and ADA." (Id., pp.7-9.) In this section of her amended complaint the plaintiff alleges that by the Fall of 2016, she was diagnosed with stress, anxiety and PTSD. According to the amended complaint, Baylets-Holsinger sought and received FMLA leave during this period. In fact, the amended complaint appears to allege that she was allowed to utilize annual, medical, and donated leave at this time, as well as leave without pay. (Id.) Thus, while the caption of this section of the complaint refers to FMLA leave, the body of the amended complaint seems to allege that the plaintiff was permitted to fully utilize her leave without interference.
Instead, the gravamen of this section of this amended complaint seems to relate to an alleged violation of the Americans with Disabilities Act (ADA). Specifically Baylets-Holsinger alleges that her employer refused to engage in an interactive process to provide her with a reasonable accommodation for her disabilities. (Id.) While she alleges this ADA failure-to-accommodate claim, Baylets-Holsinger's amended complaint seems to allege that her employer actually offered her three options in that she could either: return to her current work; transfer to a lesser position; or receive severance with two months' pay. (Id.) Baylets-Holsinger rejected these options, and instead sought a specific accommodation of placement in a position with a different supervisor, someone that she did not regard as a harasser. (Id.) When Penn State declined this option, which would have enabled Baylets-Holsinger to select her supervisor, the plaintiff alleges that: "Due to potential PTSD 'triggers' associated with returning to the hostile environment and harasser(s)/supervisor, Plaintiff involuntarily resigned as of January 6, 2017." (Id., p.8.) After setting forth these factual averments, Baylets-Holsinger's amended complaint concludes with a series of legal citations which appear to confirm that she is endeavoring to bring sexual harassment, discrimination, and retaliation claims under Title VII, as well as ADA failure-to accommodate claim. (Id., pp. 9-12.)
Presented with this amended complaint, the defendant has, once again, moved to dismiss the complaint, alleging that this latest pleading still fails to state a claim upon which relief may be granted. (Doc. 21.) This motion is fully briefed by the parties, (Docs. 22, 24, and 25), and is, thus, ripe for resolution. For the reasons set forth below, it is recommended that this motion to dismiss be granted in part, and denied in part as follows: The motion to dismiss should be granted with respect to Baylets-Holsinger's FMLA and ADA claims, but denied with respect to the plaintiff's Title VII discrimination and retaliation claims, as well as her whistleblower retaliation claim. However, given the opaque manner in which these claims are presented, the plaintiff should be directed to provide a more definite statement of these claims in a second amended complaint which should comply with the specific directions of this court.
II. Discussion
A. Rule 12(b)(6) - The Legal Standard
Penn States has moved to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that the plaintiff has continued to fail to allege facts that state a claim upon which relief may be granted. With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)]and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal -U.S.-, 129 S. Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 556 U.S. at 675. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 679. Finally, 'where there are well- pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.' Id." Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment.") However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
It is against these legal guideposts that we now evaluate the adequacy of the allegations set forth in Baylets-Holsinger's amended complaint.
B. The Amended Complaint Fails to State a Claim Under the FMLA
At the outset, in her amended complaint Baylets-Holsinger alleges what appears to be an FMLA cause of action, captioned as "Medical Causation, FMLA and ADA." (Doc. 20, pp.7-9.) In this section, the plaintiff alleges that by the Fall of 2016, she was diagnosed with stress, anxiety and PTSD. According to Baylets-Holsinger she sought, and received, FMLA leave during this period. In fact, the amended complaint appears to allege that she was allowed to utilize annual, medical, and donated leave at this time, as well as leave without pay. (Id.) Thus, while the caption of this section of the amended complaint refers to FMLA leave, the body of the amended complaint seems to allege that the plaintiff was permitted to fully utilize her leave without interference.
In our view these averments fail to state a viable claim under the Family Medical Leave Act, 29 U.S.C. §§ 2601 et seq. The FMLA proscribes two forms of misconduct: interference with the exercise of family and medical leave rights, and retaliation against workers for the exercise of these rights. To make a claim for interference under the FMLA, a plaintiff must establish:
(1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA's requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice
to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA.Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014) (quoting Johnson v. Cmty. Coll. of Allegheny Cnty., 566 F. Supp. 2d 405, 446 (W.D. Pa. 2008)). A plaintiff must thus show not only that she was entitled to FMLA leave, but that the employer denied her those benefits. Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006). The employee does not need to show that she was treated differently from other employees, and the employer cannot justify the denial of FMLA benefits by establishing a legitimate business purpose for its decision. Id. at 399. Moreover, "[b]ecause the FMLA [interference claim] is not about discrimination, a McDonnell Douglas burden-shifting analysis is not required." Id. The Third Circuit Court of Appeals has emphasized that interference claims are not coterminous with claims of FMLA retaliation, and indeed has explained that "[a]n interference claim is not about discrimination[;] it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA." Ross, 755 F.3d at 192 (quoting Callison v. City of Phila., 430 F.3d 117, 120 (3d Cir. 2005)) (alteration in Ross). In plain terms, "for an interference claim to be viable, the plaintiff must show that FMLA benefits were actually withheld." Ross, 755 F.3d at 192.
In addition, the FMLA expressly prohibits employers from discriminating or retaliating against employees who have opposed any practice made unlawful under the FMLA, 29 U.S.C. § 2615(a)(2), and implementing regulations make clear that an employer "is prohibited from discriminating against employees or prospective employees who have used FMLA leave. For example . . . employers cannot use the taking of FMLA leave as a negative factor in employment actions such as hiring, promotions or disciplinary actions . . . ." 29 C.F.R. § 825.220(c). In the typical FMLA retaliation claim, an employee alleges that after taking FMLA-qualifying leave, she was subjected to adverse employment action, including termination or other retaliatory action, because she took time away from work for FMLA-qualifying reasons. See, e.g., Freeman v. Phila. Hous. Auth., No. 12-1422, 2013 U.S. Dist. LEXIS 100774, at *31 (E.D. Pa. July 18, 2018) (describing retaliation claims as those "where an employee requested or took FMLA leave, remained at or returned to work, and then was subject to some type of adverse employment action such as termination or demotion."). To prevail on her FMLA retaliation claim, the plaintiff has the burden of establishing a prima facie case by showing that she invoked a right to FMLA-qualifying leave, subsequently suffered an adverse employment decision, and demonstrate that the adverse action was causally related to her invocation of her FMLA rights. Ross, 755 F.3d at 193 (citing Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)). If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to show a legitimate, non-retaliatory reason for the allegedly adverse employment decision. Lichtenstein, 691 F.3d at 302. If the employer satisfies this "minimal burden," id., the plaintiff has the burden of establishing evidence sufficient to cast doubt on the employer's legitimate, non-retaliatory reason. Id.
In the instant case, the well-pleaded facts set forth in Baylets-Holsinger's amended complaint simply do not describe any interference with her use of FMLA leave. Quite the contrary, it appears from the amended complaint the plaintiff was permitted to use annual, medical, donated leave, and was granted leave without pay status as she dealt with the medical complications arising from her stress and PTSD. In the absence of some well-pleaded facts describing actual interference with her FMLA leave, any FMLA interference claim fails. Likewise, we do not read the amended complaint as asserting an FMLA retaliation claim or providing well-pleaded facts from which it can be inferred that Penn State retaliated against her for exercising her FMLA rights. This is a notable omission since elsewhere in the amended complaint Baylets-Holsinger shows that she is capable of asserting a retaliation claim, as she does with respect to her Title VII allegations. Accordingly, in the absence of any well-pleaded factual averments describing either FMLA interference or FMLA retaliation, any FMLA claims advanced by Baylets-Holsinger should be dismissed.
C. The Amended Complaint also Fails to State an ADA Failure-to-Accommodate Claim.
As we construe her amended complaint, Baylets-Holsinger is also alleging a failure-to-accommodate claim under the Americans with Disabilities Act, 42 U.S.C. §§ 12201 et seq. The purpose of the ADA is to "prevent employment discrimination of qualified individuals on account of their disability." Koller v. Riley Riper Hollin & Colagreco, 850 F. Supp. 2d 502, 512 (E.D. Pa. 2012) (citing 42 U.S.C. § 12112(a)). The Act requires employers to make "reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability, unless the employer demonstrates that such accommodations would impose an undue hardship in the operation of their business." Id. (quoting Fleck v. WILMAC, Corp., No. 10-5562, 2011 U.S. Dist. LEXIS 54039, at *10 (E.D. Pa. May 19, 2011)). "To assert a claim based upon a failure to accommodate under the ADA, a plaintiff must show that (1) she is a disabled person within the meaning of the ADA; (2) she is otherwise qualified to perform the essential functions of her job, with or without a reasonable accommodation; and (3) she has suffered an otherwise adverse employment decision as a result of discrimination, which 'in this context include refusing to make reasonable accommodations for a plaintiff's disabilities.' Williams v. Philadelphia Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004). The term ' " reasonable accommodation" further "includes the employer's reasonable efforts to assist the employee and to communicate with the employee in good faith ...." ' Id. at 761 (quoting Mengine v. Runyon, 114 F.3d 415, 416 (3d Cir. 1997) )." Ashelman v. Geisinger Health Sys. Found., No. 3:16-CV-1837, 2018 WL 3827155, at *14 (M.D. Pa. July 18, 2018).
Thus, the gist of an ADA accommodation claim is the failure of an employer to make a reasonable accommodation to an employee's disability. It is upon this essential element of her ADA claim that Baylets-Holsinger's amended complaint founders. In short, according to the amended complaint, it appears that the ADA accommodation that Baylets-Holsinger alleges that she sought was to compel her employer to provide her with a different job and a different supervisor. Given the accommodation sought by Baylets-Holsinger, as described in her amended complaint, this pleading fails to state a claim upon which relief may be granted because the accommodation that she demanded has been deemed unreasonable as a matter of law. As we have recently noted on this score:
In Gaul v. Lucent Technologies, Inc., the Third Circuit Court of Appeals considered this very issue and held that transferring an employee to a different, less stressful position was not a reasonable accommodation to address the employee's depression and related anxiety disorders. In so ruling, the Court provided the following instructive analysis:
[First] [t]he only certainty for AT&T would be its obligation to transfer Gaul to another department whenever he becomes "stressed out" by a coworker or supervisor. It is difficult to imagine a more amorphous "standard" to impose on an employer.
Second, Gaul's proposed accommodation would also impose extraordinary administrative burdens on AT&T. In order to reduce Gaul's exposure to coworkers who cause him prolonged and inordinate stress, AT&T supervisors would have to consider, among other things, Gaul's stress level whenever assigning projects to workers or teams, changing work locations, or planning social events. Such considerations would require far too much oversight and are simply not required under law. Third, by asking to be transferred away from individuals who cause him prolonged and inordinate stress, Gaul is essentially asking this court to establish the conditions of his employment, most notably, with whom he will work. However, "[n]othing in the law leads us to conclude that in enacting the disability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy. Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.
In sum, Gaul does not meet his burden ... because his proposed accommodation was unreasonable as a matter of law. Therefore, Gaul is not a "qualified individual" under the ADA, and AT&T's alleged failure to investigate into reasonable accommodation is unimportant.
Gaul, 134 F.3d 576, 581 (3d Cir. 1998). This analysis in Gaul has been applied by numerous courts, including those in the Middle District of Pennsylvania, which have found that "a request to return to work under a different supervisor is ... unreasonable." Dart v. County of Lebanon, Civ. No. 13-CV-02930, 2014 WL 4792135, at *10 (M.D. Pa. Sept. 23, 2014); see also Coulson v. The Goodyear Tire & Rubber Co., 31 F. App'x 851, 858 (6th Cir. 2002); Weiler v. Household Fin.
Corp., 101 F.3d 519, 526 (7th Cir. 1996); Larson v. Virginia Dep't of Transp., Civ. No. 5:10-cv-0136, 2011 WL 1296510, at *2 (W.D. Va. Apr. 5, 2011) (compiling cases arriving at the same conclusion). Moreover, claims that the plaintiff's supervisor "was the alleged genesis of Plaintiff's disability does not distinguish this case from Gaul." Dart, 2014 WL 4792135, at 10; Larson, 2011 WL 1296510, at *2 (citing Coulson, 101 F.3d at 524-25) (observing that the plaintiff had asserted that her disabilities were caused by her supervisor).Ashelman v. Geisinger Health Sys. Found., No. 3:16-CV-1837, 2018 WL 3827155, at *14 (M.D. Pa. July 18, 2018). Given this settled case law, which holds that a demand to be transferred is not a reasonable ADA accommodation request, Baylets-Holsinger's amended complaint, which only alleges that she sought such a transfer, fails to state a claim under the ADA upon which relief may be granted.
D. Baylets-Holsinger's Title VII and Whistleblower Retaliation Claims May Not be Dismissed on the Pleadings , But the Plaintiff Should be Required to Submit a More Definite Statement of these Claims
Finally, the plaintiff has claimed that Penn State discriminated against her on the basis of sex or gender, or otherwise retaliated against her for engaging in activity protected under Title VII by complaining about workplace sexual harassment. Recognizing our obligation to liberally construe pro se pleadings like those submitted here, we believe that Baylets-Holsinger has adequately stated her Title VII claims, but given her opaque style of pleading, we further recommend that she be required to provide a more definite statement of these claims.
Title VII forbids employers "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII discrimination claims are governed by a burden-shifting framework. See Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 325-26 (3d Cir. 2015). In brief, that framework requires that the plaintiff demonstrate that (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) under circumstances that give rise to an inference of unlawful sex-based discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). The last element also requires that the plaintiff demonstrate a causal connection between her protected status and the allegedly adverse action. Id. at 798. The key focus of the prima facie test is "always whether the employer is treating 'some people less favorably than others because of their race, color, religion, sex, or national origin.'" Id. (citation omitted). The elements of the prima facie case "must not be applied woodenly, but must rather be tailored flexibly to fit the circumstances of each type of illegal discrimination." Geraci v. Moody-Tottrup Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996).
The plaintiff 's amended complaint alleges in a fairly summary manner that she was subjected to disparate treatment in terms of promotion work assignments based upon her gender. Baylets-Holsinger also states that she witnessed sexual harassment of female co-workers, and seems to allege a gender-based "hostile work environment," which can also support a claim under Title VII when supported by sufficient factual allegations. "'[A] plaintiff may establish that an employer has violated Title VII by proving that discrimination based on sex created a hostile or abusive work environment.'" Jones, 796 F.3d at 328 (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)). In order to do so, a plaintiff must demonstrate that the sexual harassment in the workplace was "sufficiently severe or pervasive." Id. (quoting Vinson, 477 U.S. at 67). An employer may defend itself against such a claim, to the extent it is not based upon a tangible adverse action such as termination, by showing that the employer "exercised reasonable care to take advantage of the employer's safeguards and otherwise to prevent harm that could have been avoided." Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998).
Finally, Title VII contains a retaliation provision which Baylets-Holsinger also appears to invoke in her amended complaint. With respect to a Title VII retaliation claim, a plaintiff must show that "(1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action." Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). "With respect to 'protected activity,' the anti-retaliation provision of Title VII protects those who participate in certain Title VII proceedings (the 'participation clause') and those who oppose discrimination made unlawful by Title VII (the 'opposition clause')." Moore, 461 F.3d at 341 (citing Slagle v. County of Clarion, 435 F.3d 262, 266 (3d Cir. 2006)). Regardless of the distinction between the two theories of retaliation, "the employee must hold an objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title VII." Id. (citing Clark County v. Breeden, 532 U.S. 268, 271 (2001) (per curiam)).
A plaintiff alleging Title VII retaliation must show that a reasonable employee would have found the allegedly retaliatory action "materially adverse" in that the conduct "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Moore, 461 F.3d at 341. A plaintiff must also show a causal connection between the plaintiff's opposition to, or participation in proceedings against, unlawful discrimination and an action that might have discouraged a reasonable employee from making or supporting a charge of discrimination. "Many may suffer . . . harassment at work, but if the reason for that harassment is one that is not proscribed by Title VII, it follows that Title VII provides no relief." Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006). This third element "identif[ies] what harassment, if any, a reasonable jury could link to retaliatory animus." Id. at 449-50. "The ultimate question in any retaliation case is an intent to retaliate vel non." Id. at 449 n.2. If the employee establishes a prima facie case of retaliation, the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its conduct, and if the employer does so "the plaintiff must be able to convince the factfinder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action." Moore, 461 F.3d at 342 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997).
Turning to the amended complaint, in its current form this pleading alleges in a fairly summary fashion that the plaintiff was denied promotion opportunities given to male peers and was given a greater workload than her male peers. (Doc. 20, p. 2.) Baylets-Holsinger then alleges that she observed continued sexual harassment of several women by a male co-worker, activity which she reported to Human Resources staff in August and September of 2015. (Id.) The amended complaint also contains a section, captioned "Retaliation for complaint of Discrimination & Harassment." (Id., pp. 3-5.) In this section of her amended complaint, Baylets-Holsinger alleges that approximately six weeks after she reported alleged sexual harassment to Human Resources staff, she was subjected to an adverse employment action when she was placed on an Performance Improvement Plan ("PIP") by her supervisor. (Id.) Baylets-Holsinger also asserts that she was subjected to heightened scrutiny of her time and attendance at work, even though other male co-workers were permitted to work on much less rigorous attendance schedules. (Id.) Baylets-Holsinger attributes this heightened scrutiny and adverse employment action to her reports of sexual harassment in the workplace. (Id.)
As to Baylets-Holsinger's Title VII claims, while we see this as an extremely close case, we believe that these allegations, although spare, may state claims upon which relief may be granted. We reach this position guided, in part, by the proposition that in cases involving allegations of employment discrimination or retaliation, such as this one, the intent and credibility of parties is typically crucial and cannot be determined as a matter of law on the pleadings alone. See Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 325 n.9 (3d Cir. 2003); see also Doe v C.A.R.S. Prot. Plus, 527 F.3d 358, 369 (3d Cir. 2008) (observing that "summary judgment is to be used sparingly in employment discrimination cases"). This principal applies with particular force to retaliation claims where we have been recently cautioned that such claims often can only be determined as a matter of law at summary judgment, and my not be disposed of through a motion to dismiss where we must accept the facts as pleaded by the plaintiff. See Conard v. Pennsylvania State Police, 902 F.3d 178, 183-4 (3d Cir. 2018).
Similar considerations apply to Baylets-Holsinger's whistleblower retaliation claim. In her amended complaint the plaintiff alleges that despite her fear of further retaliatory discipline, in May of 2016 she reported what she perceived as a $1,000,000 "unnecessary overspend." According to Baylets-Holsinger, two weeks later in June of 2016, she was subjected to further retaliation in the form of formal disciplinary action brought against her by Penn State, disciplinary action which she characterizes as retaliatory and unjustified. While Baylets-Holsinger's amended complaint contains this suggestive factual recital which could support some sort of retaliation claim, notably missing from this component of her amended complaint is any allegation regarding the legal basis for this whistleblowing retaliation claim. In the absence of some further clarification it is unclear whether Baylets-Holsinger is bringing a First Amendment retaliation claim, a claim under Pennsylvania's Whistleblower statute, or both. See generally Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 982 (3d Cir. 2014). Further clarity is needed here.
Thus, while we find that Baylets-Holsinger may have stated Title VII claims in this amended complaint, the plaintiff's obscure style of pleading these claims, and any whistleblower claim, presents significant obstacles to an informed understanding of the plaintiff's pleadings. In such instances the court may, sua sponte, order the plaintiff to file a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure in order to clarify the plaintiff's claims. See, e.g., Kyeame v. Buchheit, No. 1:07-CV-1239, 2011 WL 3651369, at *1 (M.D. Pa. Aug. 18, 2011); MFS, Inc. v. Twp. of South Annville, No. 1:05-CV-1371, 2006 WL 3254535, at *7 (M.D.Pa. Nov.9, 2006); see also Moore's Federal Practice, § 12.36 (Matthew Bender 3d ed.) ("Because of its potential usefulness ... courts will occasionally order a more definite statement sua sponte, which they have the freedom to do"); Fikes v. City of Daphne, 79 F.3d 1079, 1082-83 (11th Cir.1996) (finding that a more definite statement can tighten a complaint and clarify which of several possible claims are being asserted). Here, we find that this particular complaint aptly:
highlight[s] the particular usefulness of the Rule 12(e) motion for a more definite statement. Under Rule 12(e), [the court may order] a more definite statement "[i]f a pleading ... is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed.R.Civ.P. 12(e). . . . . When a complaint fashioned under a notice pleading standard does not disclose the facts underlying a plaintiff's claim for relief, the defendant cannot reasonably be expected to frame a proper, fact-specific . . . defense. . . . . The Rule 12(e) motion for a more definite statement is perhaps the best procedural tool available to the defendant to obtain the factual basis underlying a plaintiff's claim for relief.Thomas v. Independence Tp., 463 F.3d 285, 301 (3d Cir. 2006)
Given the legal and factual ambiguity of the plaintiff's surviving claims, we believe that the plaintiff should be required to provide a more definite statement of these claims, before the court is tasked with further assessing the legal merits of these alleged claims. Therefore, it is recommended that the plaintiff also be directed pursuant to Rule 12(e) to submit a more definite statement of these claims. However, in this regard, Baylets-Holsinger should also be specifically instructed that the plaintiff's second amended complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), set forth in averments that are "concise, and direct." Fed. R. Civ. P. 8(e)(1). This amended complaint must be a new pleading which stands by itself as an adequate complaint without reference to any other pleading already filed. Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992). The complaint should set forth plaintiffs' claims in short, concise and plain statements, and in sequentially numbered paragraphs. It should name proper defendants, specify the offending actions taken by a particular defendant, be signed, and indicate the nature of the relief sought. Further, the claims set forth in the complaint should arise out of the same transaction, occurrence, or series of transactions or occurrences, and they should contain a question of law or fact common to all defendants.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendant's motion to dismiss the complaint be GRANTED in part and DENIED in part as follows: The motion to dismiss should be GRANTED with respect to the plaintiff's ADA and FMLA claims, but denied with respect to her Title VII and whistleblower retaliation claims.
IT IS FURTHER RECOMMENDED that, as to these Title VII and whistleblower retaliation claims, that the plaintiff be ordered to file a second amended complaint which recites factual allegations which: (1) are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation; (2) contains "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), set forth in averments that are "concise, and direct." Fed. R. Civ. P. 8(e)(1); (3) states her claims in short, concise and plain statements, and in sequentially numbered paragraphs; and (4) names proper defendants, specifying the offending actions taken by a particular defendant, and indicating the nature of the relief sought by the plaintiff.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 30th day of October, 2018.
/s/ Martin C .Carlson
Martin C. Carlson
United States Magistrate Judge