Opinion
CIVIL 1:21-CV-1528
08-23-2022
GENEIA RICE et al., Plaintiffs, v. KBR, Defendant.
RAMBO, JUDGE.
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE.
I. Introduction
The instant motion presents an opportunity for this Court to consider who may be sued as an “employer” under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA). This case has been referred to us for consideration of a motion to dismiss filed by the defendant, KBR, as to the claims alleged by one of the pro se plaintiffs in this case, Walter Parker. The defendant asserts that Parker has failed to state a claim upon which relief can be granted because he has not set forth facts in his complaint which would establish that KBR was his employer within the meaning of Title VII and the PHRA.
After consideration, we find that the plaintiff has failed to sufficiently allege that KBR is a joint employer that would be liable to him under Title VII. Thus, we will recommend that the defendant's motion be granted, without prejudice to the plaintiff having another opportunity to sufficiently state his claim in an amended complaint.
II. Background
On September 3, 2021, husband and wife Walter Parker and Geneia Rice jointly filed this civil action seeking injunctive relief, lost wages, liquidated damages, front pay, compensatory damages, punitive damages, prejudgment interest, post-judgment interest, and costs, including attorney's fees and expert witness fees for alleged violations of their rights under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. (Doc. 1). The facts of their complaint relate to their time working for KBR in 2019 and 2020. Plaintiff Rice alleges she was subjected to sexual harassment and racial discrimination while employed by KBR. (Doc. 1-2, at 2). Plaintiff Parker, whose claims are the subject of the instant motion, avers that he was subjected to racial discrimination, harassment, and retaliation during his time at KBR. (Doc. 1-3, at 3).
Specifically, Parker alleges that he began working for KBR in April 2020 through an agency named Dav-Force. (Id. at 4). During his time at KBR he claims other employees and a team lead, Mr. Spahr, used racially inappropriate language when speaking to him, calling him “mixed breed,” “homie,” “homeboy,” and “boy.” (Id.) He also claims that he and other minority employees were told they could not use the bathroom. (Id.) Further, he claims that Mr. Spahr dishonestly reported to Dav-Force that he had been late and accused him of creating a hostile work environment, resulting in Parker being placed on leave without pay three times before being barred from the base and charged with harassment. (Id.) The harassment charges were dropped in June 2021 in exchange for Parker resigning from his position. (Id.)
Parker filed a complaint with the OFCCP and was issued a right to sue letter on June 17, 2021. (Doc. 1-3, at 1). He and Plaintiff Rice filed the instant suit on September 3, 2021 and the defendant filed the instant partial motion to dismiss on November 8, 2021. (Doc. 17). This motion has been fully briefed and is ripe for resolution. (Docs. 18, 22, 23). After consideration, and for the following reasons, we find that Plaintiff Parker has not sufficiently alleged the requisite employer relationship in his complaint against KBR which would entitle him to relief under Title VII and the PHRA. Accordingly, we will recommend that the instant motion to dismiss be granted, without prejudice to Plaintiff Walker submitting an amended complaint based upon this recommendation.
III. Discussion
A. Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for the 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, BU.S.B, 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 a 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; it 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:
[After 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.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
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, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. 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.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In considering a motion to dismiss, the court generally relies 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.3d 382, 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, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. The Motion to Dismiss Plaintiff's Complaint Should Be Granted as to Parker's Claims Against KBR.
This motion challenges the plaintiffs' complaint as to the allegations of Walter Parker based upon the absence of any allegations of a joint or individual employment relationship between Parker and KBR. The defendant argues that the complaint is devoid of any factual allegations that would suggest that Parker was employed by KBR, but instead asserts that Parker was employed by Dav-Force. (Doc. 18, at 3). In his response brief, Parker argues that he was an employee of Dav-Force, a staffing agency subcontracted with KBR at the NSA Mechanicsburg base, but that Dav-Force does not manage, supervise, appear, or delegate tasks on site. (Doc. 22, at 1). This employment status is a matter of cardinal importance in this case since under the Title VII and the PHRA, as the legal prerequisite to an employment discrimination claim against KBR in this setting is the existence of an employeremployee relationship. Mindful of this threshold requirement for an employment discrimination claim against KBR, we note that Parker's complaint does not allege that he was employed by KBR, but states that he “began working with KBR in April 2020 through an agency named Dav-Force.” (Doc. 1-3, at 4).
Title VII dictates, “[i]t shall be an unlawful employment practice for an employer to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C.A. § 2000e-2(a)(1). The PHRA similarly prohibits discrimination by and employer due to an individual's race. (See 43 P.S. § 955(a)). Title VII defines an “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person....” 42 U.S.C. § 2000e(b).
The law recognizes joint employer liability for acts of workplace discrimination. Thus, “[t]wo entities may be ‘co-employers' or ‘joint employers' of one employee for purposes of Title VII.” Faush v. Tuesday Morning, Inc., 808 F.3d 208, 215 (3d Cir. 2015) (citing Graves v. Lowery, 117 F.3d 723, 727 (3d Cir. 1997)). In assessing joint employment claims, however, courts apply what are commonly referred to as Darden factors, and we are instructed that:
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished.” Darden, 503 U.S. at 323, 112 S.Ct. 1344 (quoting Reid, 490 U.S. at 751, 109 S.Ct. 2166)
(internal quotations omitted). Darden provides a nonexhaustive list of relevant factors, including:
[T]he skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.Id. at 323-24 (quoting Reid, 490 U.S. at 751-52, 109 S.Ct. 2166).
Our Court has generally focused on “which entity paid [the employees'] salaries, hired and fired them, and had control over their daily employment activities.” Covington, 710 F.3d at 119 (alteration in original) (quoting Covington v. Int'l Ass'n of Approved Basketball Officials, No. 08-3639, 2010 WL 3404977, at *2 (D.N.J. Aug. 26, 2010)). However, “[s]ince the common-law test contains ‘no shorthand formula or magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'” Darden, 503 U.S. at 324, 112 S.Ct. 1344 (second alteration in original) (quoting N.L.R.B. v. United Ins. Co. of Am., 390 U.S. 254, 258, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968))Faush, 808 F.3d at 214.
Here, the facts alleged in this pro se complaint relating to the circumstances of Parker's employment are relatively sparce. The complaint alleges that Parker “began working with KBR in April 2020 through an agency named Dav-Force.” (Doc. 1-3, at 4). It also alleges that Parker's site manager, Mr. Spahr, reported his alleged tardiness to “my agency Dav-Force” on September 10, 2020, and that he was “placed on leave without pay for days while the agency investigated the allegations.” (Id.) In fact, each time Parker alleges he was placed on leave without pay it appears the complaint indicates that Dav-Force made the decision based on reports from Mr. Spahr. This seems to indicate that Dav-Force was in control of the hiring and firing of Parker. Beyond these statements, there is nothing in the complaint that explains the circumstances of Parker's employer-employee relationship with either KBR or Dav-Force. As the defendant points out, the complaint does not contain any specific allegations regarding who paid his salary, was in charge of his daily tasks, provided tools, had discretion over his work schedule, or any other facts that may weigh in favor of us finding an employment relationship between KBR and Parker. It is possible, as Parker argues in his reply brief, that Dav-Force does not “manage, supervise, appear, or delegate task on site” and that “these were the duties of KBR,” (Doc. 22, at 1), however, on a motion to dismiss, our inquiry is limited only to the facts alleged in the complaint as we need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal., 459 U.S. at 526. Further, it is well-settled that a plaintiff cannot amend a complaint through the filing of a brief, or through arguments set forth in a brief opposing a dispositive motion. Indeed, "[i]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss." Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)); cf. Frederico v. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007) ("[W]e do not consider after-the-fact allegations in determining the sufficiency of [a] complaint under Rules 9(b) and 12(b)(6)."). Therefore, we are left with only the facts alleged in the complaint, that Parker worked for KBR through the agency that employed him, Dav-Force. These facts are not sufficient for us to find KBR was his employer for purposes of his Title VII and PCRA claims.
Yet, while this merits analysis calls for dismissal of this action, we recommend that the plaintiff be given another, final, opportunity to further litigate this matter by endeavoring to promptly file an amended complaint. We recommend this course mindful of the fact that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend is not necessary in a case such as this where amendment would be futile or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Accordingly, it is recommended that the Court provide the plaintiff with an opportunity to correct these deficiencies in the pro se complaint, by dismissing this deficient complaint without prejudice to one final effort by the plaintiff to comply with the rules governing civil actions in federal court.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendant's partial motion to dismiss (Doc. 17) be GRANTED as to Plaintiff Parker's claims against KBR, without prejudice to the plaintiff filing an amended complaint in accordance with this recommendation.
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.