Briggs et al v. Macy's Inc. et alBRIEF IN SUPPORT re MOTION to Dismiss Plaintiffs' Complaint or, in the Alternative, Dismiss or Strike Portions of the ComplaintM.D. Pa.May 18, 2017UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ANDREA L. BRIGGS, et al., Plaintiffs, v. MACY’S, INC., et al., Defendants. : : : : : : : : : Case No. 3:16-CV-00902-MEM (Hon. Malachy E. Mannion) Filed via ECF BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT OR, IN THE ALTERNATIVE, DISMISS OR STRIKE PORTIONS OF THE COMPLAINT Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 1 of 139 TABLE OF CONTENTS PAGE i. Table of Citations .................................................................................................... ii I. INTRODUCTION .......................................................................................... 1 II. PROCEDURAL HISTORY ........................................................................... 2 III. STATEMENT OF FACTS ............................................................................. 2 IV. STATEMENT OF QUESTIONS INVOLVED ............................................. 3 V. ARGUMENT .................................................................................................. 4 A. LEGAL STANDARD .......................................................................... 4 B. MRS. BRIGGS FAILS TO STATE VALID TITLE VII AND PHRA CLAIMS ................................................................................... 5 1. Defendant Reese Is An Improper Party To Counts I Through III And Should Be Dismissed ..................................... 5 2. Mrs. Briggs Has Not Pled Sufficient Facts To Support Her Title VII And PHRA Claims .............................................. 6 a. Mrs. Briggs Has Failed To State A Claim In Count I ............................................................................. 6 b. Mrs. Briggs Fails To State Claims For Hostile Work Environment .......................................................... 8 c. The Retaliation Claims Must Be Dismissed .................. 11 C. MRS. BRIGGS FAILS TO STATE A CONSPIRACY CLAIM PURSUANT TO 42 U.S.C. § 1985(3) ............................................... 13 D. THERE IS NO VIABLE CAUSE OF ACTION FOR WRONGFUL TERMINATION ........................................................ 15 E. MR. BRIGGS CANNOT STATE A CLAIM FOR LOSS OF CONSORTIUM .................................................................................. 16 F. In the alternative, Plaintiffs’ claims for punitive damages must be dismissed or stricken ..................................................................... 17 VI. CONCLUSION ............................................................................................. 18 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 2 of 139 ii. TABLE OF CITATIONS Page(s) CASES Andrews v. Philadelphia, 895 F.2d 1469 (3d Cir. 1990) ........................................................................... 6, 8 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................. 4 Barthold v. Briarleaf Nursing & Convalescent Ctr. Nursing Home, No. 13-2462, 2014 U.S. Dist. LEXIS 87602 (E.D. Pa. June 27, 2014) ............. 12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ...................................................................................... 4 Burlingame v. Pretium Packaging, No. 1:05-CV-2469, 2006 U.S. Dist. LEXIS 54975 (M.D. Pa. Aug. 8, 2006) ................................................................................................................... 13 Clark County Sch. Dist. v. Breeden, 553 U.S. 268 (2001) .............................................................................................. 9 Clay v. Advanced Computer Applications, Inc., 559 A.2d 917 (Pa. 1989) ..................................................................................... 15 Danas v. Chapman Ford Sales, Inc., 120 F.Supp.2d 478 (E.D. Pa. Oct. 27, 2000) ...................................................... 16 Darr Constr. Co. v. Workmen’s Comp. Appeal Bd., 715 A.2d 1075 (Pa. 1998) ................................................................................... 16 Dunlap v. Boeing Helicopter Div., No. 03-CV-2111, 2005 U.S. Dist. LEXIS 2781 (E.D. Pa. Feb. 23, 2005) ......... 15 EEOC v. Victoria’s Secret Stores, Inc., No. 02-6715, 2003 U.S. Dist. LEXIS 1290 (E.D. Pa. Jan. 14, 2003) ................ 16 Elmarakaby v. Wyeth Pharms, Inc., No. 09-1784, 2015 U.S. Dist. LEXIS 41300 (E.D. Pa. March 30, 2015) .......... 12 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 3 of 139 iii. Emerson v. Thiel College, 296 F.3d 184 (3d Cir. 2002) ................................................................................. 5 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) ................................................................................. 5 Galvani v. Pennsylvania, No. 1:08-CV-0393, 2008 U.S. Dist. LEXIS 89150 (M.D. Pa. Nov. 4, 2008) ................................................................................................................... 13 Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297 (3d Cir. 2003) ............................................................................... 14 Goldberg v. Philadelphia, No. 91-7575, 1994 U.S. Dist. LEXIS 8969 (E.D. Pa. June 29, 1994) ............... 17 Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 443 U.S. 366 (1979) ............................................................................................ 13 Greer v. Mondelez Global, Inc., 590 Fed.Appx. 170 (3d Cir. 2014) ........................................................................ 9 Grigsby v. Kane, 250 F.Supp.2d 453 (M.D. Pa. 2003) ................................................................... 14 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ................................................................................................ 9 Hoy v. Angelone, 720 A.2d 745 (Pa. 1998) ..................................................................................... 17 Huston v. Procter & Gamble, 568 F.3d 100 (3d Cir. 2009) ................................................................................. 8 Kaniuka v. Good Shepherd Home, No. 05-CV-02917, 2006 U.S. Dist. LEXIS 57403 (E.D. Pa. Aug. 15, 2006) ............................................................................................................. 11, 12 McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283 (Pa. 2000) ..................................................................................... 15 Melencheck v. HCR Manor Care, No. 08-966, 2009 U.S. Dist. LEXIS 74207 (W.D. Pa. March 10, 2009) ........... 16 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 4 of 139 iv. Peacock v. UPMC Presbyterian, No. 15-547, 2016 U.S. Dist. LEXIS 30189 (W.D. Pa. March 9, 2016) ............... 9 Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) ................................................................................. 4 Quitmeyer v. SEPTA, 740 F.Supp. 363 (E.D. Pa. 1990) .................................................................. 16, 17 Rachuna v. Best Fitness Corp., No. 1:13-CV-365, 2014 U.S. Dist. LEXIS 61674 (W.D. Pa. May 5, 2014) ........ 7 Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) ............................................................................. 11 Sarullo v. U.S. Postal Serv., 352 F.3d 789 (3d Cir. 2003) ................................................................................. 7 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996) ................................................................ 6 Weston v. Pennsylvania, 251 F.3d 420 (3d Cir. 2001) ................................................................................. 5 Wilsbach v. Filene’s Basement, No. 96-2219, 1997 U.S. Dist. LEXIS 20984 (E.D. Pa. Dec. 31, 1997) ............. 17 STATUTES 42 U.S.C. § 1985(3) ................................................................................. 1, 12, 13, 15 42 U.S.C. § 1985(7) ................................................................................................... 1 Civil Rights Act of 1991, 42 U.S.C. §§ 2000e, et seq. .............................................. 5 PHRA ................................................................................................................passim PHRA § 955(e) ......................................................................................................... 10 OTHER AUTHORITIES Fed. R. Civ. P. 12(b)(6) .......................................................................................... 1, 4 Fed. R. Civ. P. 12(f) ........................................................................................... 1, 4, 5 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 5 of 139 v. Local Rule 7.1 .......................................................................................................... 19 Local Rule 7.8 ...................................................................................................... 1, 20 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 6 of 139 1. Defendants Macy’s, Inc. (improper party), Macy’s Retail Holdings, Inc., (hereinafter collectively referred to as “Macy’s”), and Jay Reese, by and through their undersigned counsel, pursuant to inter alia Fed. R. Civ. P. 12(b)(6), Fed. R. Civ. P. 12(f), Local Rule 7.8, hereby submit the following Brief in Support of Defendants’ Motion to Dismiss Plaintiffs’ Complaint or, in the alternative, dismiss or strike portions of the Complaint: I. INTRODUCTION On May 17, 2016, Plaintiff Andrea Briggs (“Mrs. Briggs”), a former employee of Macy’s Retail Holdings, Inc., filed a Complaint in which she purports to assert seven causes of action against Macy’s Retail Holdings, its parent company Macy’s, Inc., and Jay Reese, the Vice President/Store Manager of the Wyoming Valley Mall store at which she worked: (1) sexual harassment pursuant to Section 704(a) of Title VII, (2) hostile work environment pursuant to Title VII, (3) retaliation pursuant to Title VII, (4) hostile work environment and sex/gender harassment pursuant to Section 5(a) of the Pennsylvania Human Relations Act (“PHRA”), (5) retaliation pursuant to Section 5(d) of the PHRA, (6) conspiracy to interfere with her civil rights pursuant to 42 U.S.C. § 1985(3), and (7) wrongful termination. Additionally, her husband Robert Briggs (“Mr. Briggs”) has filed a single cause of action against all three defendants alleging loss of consortium. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 7 of 139 2. This Court should dismiss each count of Plaintiffs’ Complaint, or, in the alternative and to the extent any cause of action remains after consideration of Defendants’ motion to dismiss, dismiss or strike Plaintiffs’ punitive damage claims, for all of the reasons set forth below. Plaintiffs have failed to state a claim for any of their eight causes of action, failing in some cases to state a claim as a matter of law and in others failing to allege sufficient facts to support a plausible claim upon which relief can be granted. In short, Plaintiffs’ Complaint fails and should be dismissed with prejudice. II. PROCEDURAL HISTORY Plaintiffs filed their Complaint in this Court on or about May 17, 2016, and mailed a waiver of service form on or about that same day. Defendants initially filed a motion to compel arbitration of Mrs. Briggs’ employment-related claims on July 15, 2016, and the Court denied the motion without prejudice on February 14, 2017 to permit Mrs. Briggs to conduct discovery. Defendants have decided to defend the claims in this venue, and pursuant to the Court’s Orders dated 2/14/17 (Doc. 16) and 4/25/17 (Doc. 21), this motion to dismiss Plaintiffs’ Complaint has been timely filed. III. STATEMENT OF FACTS Plaintiff Andrea Briggs was terminated from her employment with Macy’s on or about July 29, 2014, for a policy violation. (Complaint, Doc. 1, ¶¶ 18, 34.) Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 8 of 139 3. Plaintiff claims that she was subject to what she characterizes as “inappropriate and sexually harassing comments and actions” from Defendant Reese, an individual employee of Macy’s Retail Holdings, Inc., which she has alleged to be invitations to have dinner, following her around the store in which they both work, staring at her, commenting on her appearance and attire, asking if her husband was out-of-town, and driving by her residence. (Complaint, Doc. 1, ¶¶ 5-6, 21.) Her Complaint alleges no specific actions or comments of a sexual nature and does not identify when any of the alleged comments or actions occurred or when or to whom she allegedly complained to at her employer. (Complaint, Doc. 1, ¶¶ 18- 37.) IV. STATEMENT OF QUESTIONS INVOLVED (1) Whether Plaintiffs’ Complaint must be dismissed where Plaintiffs have failed to state a claim upon which relief can be granted with respect to their purported federal and state statutory and common law causes of action? (2) Whether Plaintiffs’ claims for punitive damages must be dismissed or stricken where Plaintiffs improperly seek punitive damages for claims in which they are not available or lack sufficient factual allegations? Macy’s suggests that each of these questions must be answered in the affirmative. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 9 of 139 4. V. ARGUMENT A. LEGAL STANDARD A complaint must be dismissed when it “fails[s] to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). On a motion to dismiss pursuant to Rule 12(b)(6), courts must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). To survive a motion to dismiss, “a 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must “identify[] the pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. (citing Twombly, 550 U.S. at 556). This standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “[A]ll civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 10 of 139 5. accusation.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Federal Rule of Civil Procedure 12(f) further provides, “The court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). B. MRS. BRIGGS FAILS TO STATE VALID TITLE VII AND PHRA CLAIMS. Pennsylvania courts have construed the protections of Title VII and the PHRA interchangeably, and as such, the analysis of the statutes is identical. See Weston v. Pennsylvania, 251 F.3d 420, 425 n.3 (3d Cir. 2001). One exception, as explained more fully in subsection (1) below, is there are no circumstances under which an individual defendant can be liable under Title VII. That said, Mrs. Briggs has failed to state a claim for any of her purported causes of action alleged in Counts I through V. 1. Defendant Reese Is An Improper Party To Counts I Through III And Should Be Dismissed. Mrs. Briggs has named Defendant Reese as a defendant in Counts I through III, all of which purport to state claims for violations of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e, et seq. As Plaintiff alleges, Mr. Reese is an individual employee of Macy’s Retail Holdings, Inc. Complaint, Doc. 1, at ¶¶ 5-6. Individual employees are not liable under Title VII. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 11 of 139 6. (citing Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996)). As such, Mr. Reese cannot be liable under Title VII. Accordingly, Mrs. Briggs has failed to state a Title VII claim against Mr. Reese in Counts I through III. Mr. Reese should be dismissed from Counts I through III. 2. Mrs. Briggs Has Not Pled Sufficient Facts To Support Her Title VII And PHRA Claims. a. Mrs. Briggs Has Failed To State A Claim In Count I. It is difficult to deduce exactly what type of claim Mrs. Briggs attempts to bring in Count I. She has titled Count I as a claim for “sexual harassment.” To the extent she intended this label to reflect the claim stated therein, Count I actually constitutes the same cause of action set forth in Count II. A hostile work environment claim is merely a type of sexual harassment cause of action: A plaintiff who claims that she has been sexually harassed has a cause of action under Title VII if the sexual harassment was either a quid pro quo arrangement, or if the harassment was so pervasive that it had the effect of creating an intimidating, hostile, or offense work environment. Andrews v. Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). As such, the Court should dismiss Count I to the extent Mrs. Briggs merely seeks to state a claim that is duplicative to that alleged in Count II. Adding to the confusion, Mrs. Briggs includes a block quotation from Section 704(a) of Title VII, commonly recognized as the anti-retaliation provision in the statute. To the extent she intends to bring the claim pursuant to the anti- Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 12 of 139 7. retaliation principles set forth in Section 704(a), Count I is merely duplicative of Count III. In such case, dismissal remains appropriate. Based on the content of some of the allegations, it is possible that Mrs. Briggs is attempting to plead a claim for gender discrimination. Such a claim still fails because it is duplicative of her other Title VII claims. See Rachuna v. Best Fitness Corp., No. 1:13-CV-365, 2014 U.S. Dist. LEXIS 61674, at *12-13 (W.D. Pa. May 5, 2014). Furthermore, she has failed to state such a claim upon which relief can be granted. A claim for gender discrimination under Title VII requires a plaintiff to plead sufficient facts showing that (1) she is a member of a protected class; (2) she was qualified for the position she sought to retain; (3) she suffered an adverse employment action; and (4) under circumstances that raise an inference of discriminatory action, the employer continued to seek out individuals with qualifications similar to the plaintiff’s to fill the position. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). Mrs. Briggs has not properly alleged a separate cause of action for gender discrimination in Count I of the Complaint. The allegations in Count I appear to be nothing more than the threadbare recitals of some, but not all, of the elements of a gender discrimination claim. While her status as a woman would qualify her for a protected class based on her gender, there are no other allegations to support her claim. For instance, Count I fails to allege any facts supporting her conclusory Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 13 of 139 8. allegation that there was an inference of discriminatory animus based on her gender or that Macy’s continued to seek out individuals with qualifications similar to hers to fill the position. There are no other allegations that her employer treated her differently than others because of her gender. It is not enough to allege in a conclusory fashion that “Macy’s . . . treated similarly situated employees who did not complain about sexual harassment more favorably.” Complaint, Doc. 1, at ¶ 35. For the reasons stated above, Mrs. Briggs’ allegations in Count I fail to state a claim upon which relief can be granted. b. Mrs. Briggs Fails To State Claims For Hostile Work Environment. Mrs. Briggs’ Count II purports to state a claim for hostile work environment pursuant to Title VII, while her Count IV purports to allege the same claim pursuant to the PHRA. To state a claim for sexual harassment because of a hostile work environment, a plaintiff must plead material facts sufficient to support the following elements: (1) the employee suffered intentional discrimination because of her sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability. See Huston v. Procter & Gamble, 568 F.3d 100 (3d Cir. 2009); Andrews, 895 F.2d at 1482. Plaintiff’s allegations fail to give rise to an actionable hostile work environment claim. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 14 of 139 9. “The threshold for pervasiveness and regularity of discriminatory conduct is high.” Greer v. Mondelez Global, Inc., 590 Fed.Appx. 170, 173 (3d Cir. 2014). “To rise to the level of actionable harassment, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Peacock v. UPMC Presbyterian, No. 15-547, 2016 U.S. Dist. LEXIS 30189, at *3 (W.D. Pa. March 9, 2016) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The environment must be objectively hostile, not just hostile in the plaintiff’s view. Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). “Hence, a recurring point in our opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Clark County Sch. Dist. v. Breeden, 553 U.S. 268, 271 (2001). In Peacock, the district court dismissed a hostile work environment claim as neither sufficiently severe nor pervasive even where the plaintiff identified multiple specific events by dates and specific details while further indicating that these instances were representative of the overall environment. 2016 U.S. Dist. LEXIS 30189, at *2-3. By comparison, Mrs. Briggs’ allegations are vague, lack specificity, and fail to state a claim to relief that is plausible on its face. She alleges Mr. Reese “repeatedly” followed her around work, stared at her, made Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 15 of 139 10. comments about her physical appearance and attire, and asked if her husband was out of town, acts for which she fails to provide any factual details or even dates on which the work purportedly occurred. Complaint, Doc. 1, at ¶ 21(a) - (e). None of these alleged acts are sexual in nature, and they do not amount to the discriminatory intimidation, ridicule, and insult necessary to support an actionable claim for sexual harassment. Nor do claims that Mr. Reese drove by Mrs. Briggs’ house (Complaint, Doc. 1, at ¶ 21(e)) or took her photograph (Complaint, Doc. 1, at ¶ 23)) support an actionable claim. Moreover, the allegation that Mr. Reese “repeatedly subjected Mrs. Briggs to unwanted sexual comments and advances” is so vague and altogether lacking any factual content, such as the content of the alleged comments and the dates on which they allegedly occurred, as to lack plausibility. It is precisely the sort of conclusory allegation rejected by the courts in the wake of Twombly/Iqbal. Mrs. Briggs has not made sufficient allegations to plausibly demonstrate that the conduct was objectively hostile or abusive or had a detrimental effect on her work performance. In short, Mrs. Briggs’ Complaint is devoid of the material facts and concrete allegations necessary to state an actionable claim for hostile work environment under the Title VII and the PHRA. As such, this Court should dismiss Counts II and IV.1 1 The individual PHRA claim against Defendant Reese also must be dismissed Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 16 of 139 11. c. The Retaliation Claims Must Be Dismissed. Mrs. Briggs’ Count III purports to allege a claim for retaliation pursuant to Title VII, while her Count V purports to allege retaliation pursuant to the PHRA. Under both statutes, the elements of the claim are identical: (1) the employee engaged in a protected activity; (2) subsequent to participation in the protected activity, 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. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997). As a preliminary matter, the Complaint contains no factual content alleging that Defendant Reese retaliated against Mrs. Briggs or otherwise participated in the alleged adverse employment action in a manner that could be said to constitute aiding or abetting. See, e.g., Complaint, at ¶¶ 33-34. The absence of such factual details merits a dismissal of the claim against Mr. Reese. The Complaint also contains insufficient concrete factual allegations supporting the first or third elements of these claims. Mrs. Briggs’ vague allegations that she “registered complaints of sexual harassment with Macy’s” is insufficient to support her allegation that she engaged in a protected activity. It because there can be no violation of PHRA § 955(e) when there is no corresponding § 955(a) claim against an employer. See Kaniuka v. Good Shepherd Home, No. 05-CV-02917, 2006 U.S. Dist. LEXIS 57403, at *32 (E.D. Pa. Aug. 15, 2006). Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 17 of 139 12. omits any factual details alleging the nature of her complaint, the method of her complaint, the date of the complaint, and even to whom or how she complained. Courts in this Circuit have required plaintiffs to demonstrate that they have made particularized statements in opposition to discrete past events in order to establish that they have engaged in a protected activity. Barthold v. Briarleaf Nursing & Convalescent Ctr. Nursing Home, No. 13-2462, 2014 U.S. Dist. LEXIS 87602, at *17 (E.D. Pa. June 27, 2014). She also fails to plead any temporal proximity that is unusually suggestive to support her conclusory allegation of a causal connection between her alleged participation in a purportedly protected activity and her termination. See Elmarakaby v. Wyeth Pharms, Inc., No. 09-1784, 2015 U.S. Dist. LEXIS 41300, at *22-23 (E.D. Pa. March 30, 2015). Her failure to allege any timeframe supporting a causal connection beyond such retaliation occurring “subsequent” to her purported complaints is insufficient. See Complaint, at ¶ 33; cf. Barthold, 2014 U.S. Dist. LEXIS 87602, at *21. Without these basic factual allegations, Mrs. Briggs fails to allege a plausible claim of retaliation.2 Plaintiff’s allegations do not give rise to an actionable claim for retaliation, and therefore Counts III and V should be dismissed. 2 As stated in footnote 2, supra, there also can be no liability under the PHRA against an individual defendant where there is no primary violation of the statute. See Kaniuka v. Good Shepherd Home, No. 05-CV-02917, 2006 U.S. Dist. LEXIS 57403, at *32 (E.D. Pa. Aug. 15, 2006). Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 18 of 139 13. C. MRS. BRIGGS FAILS TO STATE A CONSPIRACY CLAIM PURSUANT TO 42 U.S.C. § 1985(3). Mrs. Briggs fails to state a claim pursuant to 42 U.S.C. § 1985(3) in Count VI of her Complaint. This claim must be dismissed because “deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3).” Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 443 U.S. 366, 378 (1979). This is to prevent complainants from completely bypassing the administrative process required to resolve a Title VII violation. Id. at 377. Where, as here, “Plaintiff asserts no federal cause of action other than Title VII, . . . she has no cause of action for an acceptable ‘particular act’ underlying her conspiracy claim.” Burlingame v. Pretium Packaging, No. 1:05-CV-2469, 2006 U.S. Dist. LEXIS 54975, at *16 (M.D. Pa. Aug. 8, 2006). Accordingly, the conspiracy count must be dismissed as a matter of law. Mrs. Briggs’ conspiracy count fails on additional grounds as well. To state a cause of action for conspiracy under 42 U.S.C. 1985(3), Mrs. Briggs must allege: (1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff’s person or property, or a deprivation of a right or privilege of a citizen of the United States. Galvani v. Pennsylvania, No. 1:08-CV-0393, 2008 U.S. Dist. LEXIS 89150, at *13 (M.D. Pa. Nov. 4, 2008). “Mere conclusory allegations of Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 19 of 139 14. deprivations of constitutional rights are insufficient to state a § 1985(3) claim.” Id. “Rather, only allegations which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and actions taken in furtherance of the conspiracy, will be deemed sufficient.” Grigsby v. Kane, 250 F.Supp.2d 453, 458 (M.D. Pa. 2003). Here, Mrs. Briggs has failed to adequately allege the existence of a conspiracy. Her claim simply contains a threadbare recital of the cause of action’s elements, supported by mere conclusory statements. It lacks factual allegations demonstrating the existence and scope of the conspiracy, including any specific facts suggesting a mutual understanding among the parties (two of which are corporations), the period of the conspiracy, the object of the conspiracy, or any other facts supporting the purported claim. Her conclusory allegations are not enough to support a § 1985 claim and constitute an additional basis on which to dismiss the claim. Further, the intracorporate conspiracy doctrine holds that “an entity cannot conspire with one who acts as its agent.” Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003). While an exception exists for when employees have acted for their sole personal benefit, Mrs. Briggs has made no allegations invoking such exception here. In fact, the Complaint contains the contradictory allegation that Mr. Reese acted “at all times material hereto . . . Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 20 of 139 15. within the scope of [his] authority, course of employment and under the direct control of Macy’s.” Complaint, Doc. 1, at ¶ 8. Though conclusory in nature, this allegation reinforces the applicability of the intracorporate doctrine to her purported conspiracy claim and supports its dismissal with prejudice. For all of the reasons cited above, the Court should dismiss the § 1985(3) conspiracy claim set forth in Count VI. D. THERE IS NO VIABLE CAUSE OF ACTION FOR WRONGFUL TERMINATION. Plaintiff purports to assert a claim for “wrongful termination” in Count VII. Count VII should be dismissed for its failure to state a claim as a matter of law. Pennsylvania generally does not recognize a common law cause of action for termination of an at-will employment relationship. McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa. 2000); see also Dunlap v. Boeing Helicopter Div., No. 03-CV-2111, 2005 U.S. Dist. LEXIS 2781, at *22-23 (E.D. Pa. Feb. 23, 2005). While there are very limited exceptions to this rule, none have been pled in the Complaint. It is not enough for Mrs. Briggs to baldly assert, with no legal or factual support, that her termination violated some unidentified public policy. In fact, under Pennsylvania law, the PHRA’s statutory remedy “precludes assertion of a common law tort action for wrongful discharge based upon discrimination.” Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 918 (Pa. 1989). Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 21 of 139 16. Plaintiff has not and cannot state a viable claim for wrongful termination under Pennsylvania law. As such, Count VII must be dismissed. E. MR. BRIGGS CANNOT STATE A CLAIM FOR LOSS OF CONSORTIUM. Apparently not wanting to miss out on the kitchen sink approach to pleading that has been utilized in the Complaint, Mrs. Brigg’s husband has filed a single claim for loss of consortium in Count VIII. A loss of consortium claim “is derivative, emerging from the impact of one spouse’s physical injuries upon the other spouse’s marital privileges and amenities.” Darr Constr. Co. v. Workmen’s Comp. Appeal Bd., 715 A.2d 1075, 1080 (Pa. 1998). The claim “derives only from the injured [spouse’s] right to recover in tort. Thus, where the allegedly injured spouse fails to plead a cognizable claim, [her] spouse’s claim for loss of consortium cannot survive.” Quitmeyer v. SEPTA, 740 F.Supp. 363, 370 (E.D. Pa. 1990). As stated above, Mrs. Briggs has failed to plead a cognizable claim, and as such, Mr. Briggs’ derivative claim necessarily fails. Additionally, however, there is no recovery for loss of consortium where the spouse seeks to recover under an employment discrimination statute such as Title VII or the PHRA. See Melencheck v. HCR Manor Care, No. 08-966, 2009 U.S. Dist. LEXIS 74207, at *6-7 (W.D. Pa. March 10, 2009); EEOC v. Victoria’s Secret Stores, Inc., No. 02- 6715, 2003 U.S. Dist. LEXIS 1290, at *7 (E.D. Pa. Jan. 14, 2003); Danas v. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 22 of 139 17. Chapman Ford Sales, Inc., 120 F.Supp.2d 478, 489 (E.D. Pa. Oct. 27, 2000); Wilsbach v. Filene’s Basement, No. 96-2219, 1997 U.S. Dist. LEXIS 20984, at *33-34 (E.D. Pa. Dec. 31, 1997); Goldberg v. Philadelphia, No. 91-7575, 1994 U.S. Dist. LEXIS 8969, at *48-49 (E.D. Pa. June 29, 1994). “Moreover, there is no authority to permit spousal recovery for loss of consortium based on violations of the other spouse’s civil rights.” Quitmeyer, 740 F.Supp. at 370. For these reasons, this Court should dismiss Count VIII alleging a claim for loss of consortium. F. IN THE ALTERNATIVE, PLAINTIFFS’ CLAIMS FOR PUNITIVE DAMAGES MUST BE DISMISSED OR STRICKEN. Plaintiffs ask for punitive damages in each of their eight claims. The Pennsylvania Supreme Court has held that punitive damages are not available under the PHRA. Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998). At a minimum, those allegations should be dismissed or stricken. With regard to the remainder of the Plaintiffs’ claims, Plaintiffs have failed to allege material facts that would support a claim for punitive damages. As such, and in the alternative should this Court decline to dismiss any one of the claims, this Court should dismiss or strike the Plaintiffs’ claim for punitive damages for any of the remaining claims. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 23 of 139 18. VI. CONCLUSION For the foregoing reasons, Defendants Macy’s, Inc., Macy’s Retail Holdings, Inc., and Jay Reese respectfully request that each claim in the Complaint be dismissed, with prejudice, or in the alternative, to dismiss or strike Plaintiffs’ claims for punitive damages, and for such other and further relief as this Court deems just and proper. Respectfully submitted, Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 24 of 139 19. s/Denise M. Maher Nina K. Markey (PA 201801) Denise M. Maher (PA306846) LITTLER MENDELSON, P.C. Three Parkway 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102.1321 (t) 267.402.3000 (f) 267.402.3131 nmarkey@littler.com dmaher@littler.com Chad D. Silker, Esq. (pro hac vice) Senior Counsel, Litigation Macy’s Law Department 11477 Olde Cabin Road, Suite 400 St. Louis, MO 63141 (314) 342-6379 (telephone) (314) 342-6366 (fax) Chad.silker@macys.com Attorneys for Defendants Macy’s, Inc., Macy’s Retail Holdings, Inc., and Jay Reese Dated: May 18, 2017 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 25 of 139 20. LOCAL RULE 7.1 CERTIFICATION Pursuant to Local Rule 7.1, I, Denise M. Maher, hereby certify that counsel for defendants has sought concurrence in this motion from each party to this action, and that such concurrence has been denied by Plaintiffs through their counsel. Dated: May 18, 2017 s/Denise M. Maher Denise M. Maher Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 26 of 139 21. CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing brief complies with the word-count limit set forth in Local Rule 7.8(b)(2) in that it contains 4,147 words, as determined by the word count feature of the word-processing system used to prepare the brief. Dated: May 18, 2017 s/Denise M. Maher Denise M. Maher Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 27 of 139 22. CERTIFICATE OF SERVICE I, Denise M. Maher, hereby certify that on this 18th day of May, 2017, the foregoing document was filed using the Middle District of Pennsylvania’s ECF system, through which this document is available for viewing and downloading, causing a notice of electronic filing to be served upon all counsel of record. Dated: May 18, 2017 s/Denise M. Maher Denise M. Maher Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 28 of 139 Positive As of: May 17, 2017 5:37 PM Z Rachuna v. Best Fitness Corp. United States District Court for the Western District of Pennsylvania May 5, 2014, Decided; May 5, 2014, Filed Civil Action No. 1:13-cv-365 Reporter 2014 U.S. Dist. LEXIS 61674 *; 122 Fair Empl. Prac. Cas. (BNA) 1630; 2014 WL 1784446 SALVATORE RACHUNA, Plaintiff, vs BEST FITNESS CORP., BEST FITNESS, and B.F. OF ERIE, INC., Defendants. Counsel: [*1] For SALVATORE RACHUNA, Plaintiff: Laura S. Steehler, LEAD ATTORNEY, Marsh Spaeder Bauer Spaeder & Schaaf, Erie, PA. For BEST FITNESS CORP., BEST FITNESS, Defendants: Douglas G. Smith, LEAD ATTORNEY, Cory E. Ridenour, Jackson Lewis P.C., Pittsburgh, PA. For B.F. OF ERIE, INC., Defendant: Douglas G. Smith, Jackson Lewis P.C., Pittsburgh, PA. Judges: ROBERT C. MITCHELL, United States Magistrate Judge. Opinion by: ROBERT C. MITCHELL Opinion MEMORANDUM AND ORDER Presently before the Court is a partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by the Defendants, Best Fitness Corp., Best Fitness and B.F. of Erie, Inc., seeking to dismiss Counts I and II of the Amended Complaint (the sex discrimination and hostile work environment claims). For the reasons that follow, the motion will be granted with respect to Count I and denied with respect to Count II. Plaintiff, Salvatore Rachuna, brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII) and the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (PHRA), alleging that Defendants, Best Fitness Corp., Best Fitness and/or B.F. of Erie, Inc.,1 discriminated against him on the basis [*2] of his sex (male) by tolerating sexual harassment, created or tolerated a hostile working environment and retaliated against him for complaining about discrimination when it terminated him from his position as a Fitness Specialist on September 9, 2012. Facts Defendants hired Plaintiff on April 18, 2008, as a personal trainer in its Tonawanda, New York location. (Am. Compl. ¶ 13.)2 On or about September 1, 2008, Plaintiff was promoted to Fitness Director and relocated to the Erie, Pennsylvania location. Plaintiff was again promoted to Personal Training Sales Director and Fitness Director and relocated back to the Tonawanda location. In December 2011, Plaintiff was asked to move back to Erie and serve as the Operations Manager and Personal Training Sales Director. He continued as Operations Manager of the Erie location until April 2012, when he was asked to return to the Fitness Specialist position. (Am. Compl. ¶¶ 14-17.) As a [*3] Fitness Specialist, Plaintiff was responsible for personal training sales and personal training. He alleges that he was asked to accept the Fitness Specialist position to boost sales, because sales in Erie were low and he was known for his exceptional sales building skills and creativity. (Am. Compl. ¶¶ 18-19.) In February 2012, Eric Taylor was hired as the Membership Manager at the Erie location. As 1 Defendants indicate that the company's actual name is B.F. of Erie, Inc. (ECF No. 15 at 1), although they have not changed the captions of their documents to reflect that Plaintiff added B.F. of Erie as a defendant when he filed the Amended Complaint. 2 ECF No. 12. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 29 of 139 Page 2 of 7 Membership Manger, Taylor oversaw Plaintiff's position in a supervisory role. Plaintiff alleges that, during day-to- day operations and at frequent meetings, Taylor would often make lewd, inappropriate and unwelcome sexual remarks directed to Plaintiff about various health club members and employees. (Am. Compl. ¶¶ 20-22.) Taylor spoke and acted in a sexually loose and promiscuous manner, often making sexually advancing comments about members and employees. Plaintiff alleges that Taylor had an expectation that, because he was male, he would fit the same "male" gender stereotype of being sexually loose, promiscuous and predatory. (Am. Compl. ¶¶ 23-24.) Specifically, Plaintiff cites the following examples of Taylor's behavior: a. While Plaintiff was standing at the front desk in the entrance [*4] way of the gym, during business hours, Mr. Taylor commented to Plaintiff, "See that guy right there? He has the biggest cock I have ever seen. His hog is fucking huge." Mr. Taylor then described in details that were repulsive to Plaintiff what his life would be like if his penis were that big and what he would do with it. b. At a work fundraising function, Mr. Taylor made a sexual advance on club member, Katie Hersch, slapping Ms. Hersch on the butt and asking her to go home with him that night. During this advance, Mr. Taylor told Ms. Hersch that "one time on his tongue and she would be begging for more." c. As Plaintiff and other employees started a managers' meeting, Mr. Taylor commented to the group that he had just seen the smallest penis in his life in the locker room. d. On another occasion, Mr. Taylor in front of Plaintiff asked another employee if she had a good birthday on the previous day and if her husband had "given it to her real good" for her birthday. e. Mr. Taylor made frequent, continuous comments to Plaintiff about what the sex between another employee, who was a close friend of Plaintiff's and her husband "must be like" and how Mr. Taylor would "love to get in on the [*5] action of those two." f. Mr. Taylor made a comment to Plaintiff about a 14-year-old member about how big his feet were and that he "must be really hung." g. One day, Mr. Taylor announced that one of the male managers at a Management Retreat had gone skinny dipping and he felt sorry for him because "he had a small penis." h. Mr. Taylor made frequent and continuous sexual comments about underage girls in front of Plaintiff and other management members. On one occasion, Mr. Taylor was talking about a young girl's "ass." Another staff member told Mr. Taylor that sexual jokes about underage girls are intolerable, as the staff member had a daughter the same age as the girl that Mr. Taylor was commenting on. The conversation turned into a heated argument in which Plaintiff was forced to intervene so as not to further disrupt the membership or workplace. (Am. Compl. ¶ 25.) Plaintiff alleges that his failure to respond favorably to Taylor in conformity with this "male" gender stereotype only increased Taylor's tendencies to make lewd, hostile and unwelcome actions and comments. He indicates that these comments and actions humiliated and embarrassed him in front of other employees and members, causing [*6] him to dread going to work and being unable to effectively conduct his day-to-day business. He also states that Taylor's comments and actions caused physical and verbal altercations and disruptions in the workplace, which caused extreme difficulty for him to effectively perform his job duties. (Am. Compl. ¶¶ 27-29.) Plaintiff states that he frequently reported these inappropriate, uncomfortable comments to his direct supervisor, Defendants' Corporate Vice President of Personal Training, Karli Taylor, who was Taylor's wife. In or around March 2012, Plaintiff attended a managers' meeting with Mrs. Taylor and advised her of his complaints regarding Taylor's inappropriate, sexual, hostile behavior. At this meeting, Mrs. Taylor responded by advising the managers that they needed to get along as a team and unite to "push back" against Taylor to keep him under control and managed. Plaintiff alleges that, despite the fact that he repeatedly reported the incidences to Mrs. Taylor, she took no formal action or response; instead, she advised Plaintiff on how to "handle" Taylor when problems arose. (Am. Compl. ¶¶ 30-34.) Finally, on or about July 30, 2012, after a brief conversation between Plaintiff [*7] and Taylor, Taylor made an inappropriate remark asking Plaintiff if he had "fucked anyone lately?" Plaintiff looked at Taylor shocked and embarrassed and said "no, why would you ask that?" Taylor furthered the harassing dialogue by stating "come on [Plaintiff], there are almost 6,000 2014 U.S. Dist. LEXIS 61674, *3 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 30 of 139 Page 3 of 7 members here, you gotta get it in!" Thereafter, Plaintiff left the room humiliated. (Am. Compl. ¶¶ 35-38.) Plaintiff alleges that, on or about August 2, 2012, he reported the incident to Defendants' Chief Executive Officer, David Dos Santos. Dos Santos replied "why would he ask you that [Plaintiff]? Did you fuck anyone he knows, I don't see why he would ask you that if he didn't think you did. I just don't see [Mr. Taylor] asking that if he didn't feel you did." Dos Santos took no further action after receiving the report. (Am. Compl. ¶¶ 39-41.) On August 16, 2012, Plaintiff sent an email to Human Resources Director, Linda Tsantoulis, reporting the incident that had transpired with Taylor and Dos Santos. Ms. Tsantoulis responded advising Plaintiff that she would take the charge seriously and commence an investigation. Several days later, Tsantoulis followed up with Plaintiff and said that she would continue [*8] to check in with him to make sure everything was "okay" and that he had no other issues in the future. (Am. Compl. ¶¶ 42-44.) On September 9, 2012, Plaintiff's employment with Defendants was terminated. Plaintiff avers that the inappropriate, lewd and unwelcome sexual comments from Defendants' management toward him constitute harassment based on his sex. Plaintiff further avers that his discharge from employment was taken in retaliation for his reporting of the unlawful, unwelcome comments. He alleges that Defendants caused and/or knowingly permitted the inappropriate, unwelcome, lewd comments of its corporate and management staff to continue directly toward and before him and that Defendants' corporate and management staff were aware of the repeated, unwelcome, lewd comments being directed at and before him. (Am. Compl. ¶¶ 45- 49.) Procedural History Plaintiff filed this action on December 19, 2013. On February 24, 2014, Defendants filed a partial motion to dismiss Counts I and II of the Complaint (ECF No. 5). In response, Plaintiff filed an Amended Complaint on March 17, 2014 (ECF No. 12). Federal question jurisdiction is based on the Title VII claims, 42 U.S.C. § 2000e-5(f); 28 U.S.C. § 1331; [*9] and the Court has supplemental (Plaintiff uses the outdated term "pendent") jurisdiction over the PHRA claims, 28 U.S.C. § 1367(a).3 Count I alleges that he was subjected to discrimination in the form of same-sex harassment and because Taylor believed he did not conform to the stereotype of a heterosexual male, in violation of Title VII. Count II alleges that he was subjected to a sexually hostile work environment in violation of Title VII and the PHRA. Count III alleges that he was retaliated against for complaining about harassment in the workplace, in violation of Title VII. Defendants filed a partial motion to dismiss Counts I and II of the Amended Complaint on April 2, 2014 (ECF No. 15). Plaintiff filed a brief in opposition on April 30, 2014 (ECF No. 19). Standard of Review The Supreme Court has issued two decisions that pertain to the [*10] standard of review for a motion to dismiss for failure to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). The Court held that a complaint must include factual allegations that "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice' but also the 'grounds' on which the claim rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;" "labels and conclusions;" and "'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (citations omitted). Mere "possibilities" of misconduct are insufficient. Id. at 679. The Court of Appeals recently summarized the inquiry as follows: To determine the sufficiency of a complaint, a court [*11] must take three steps. First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S. 662, 129 3 Plaintiff also cites 28 U.S.C. §§ 2201-02 (the Declaratory Judgment Act), 28 U.S.C. § 1343 (civil rights claims), 29 U.S.C. § 217 (FLSA claims), and 29 U.S.C. § 1132 (ERISA claims). (Am. Compl. ¶ 5.) In addition, he alleges an amount in controversy exceeding $75,000.00. (Am. Compl. ¶ 8). These citations and allegations are not relevant to this case. 2014 U.S. Dist. LEXIS 61674, *7 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 31 of 139 Page 4 of 7 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). 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. Third, "whe[n] 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. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Defendants argue that: 1) Count I (sexual discrimination) is duplicative of Count II (hostile work environment); 2) the allegations do not meet any of the three narrow scenarios for same-sex harassment under Title VII; and 3) the allegations do not support a finding that [*12] Plaintiff was subjected to "severe and pervasive" conduct. Plaintiff responds that: 1) he has alleged that he was subjected to same-sex harassment on the basis that he did not conform to Taylor's stereotype of a fellow male co-worker who would make sexually loose, promiscuous and predatory comments in the workplace; and 2) he has alleged that he was subjected to severe and pervasive harassment sufficient to create an objectively hostile work environment. Duplication of Claims Defendants argue that Count I (sexual discrimination) should be dismissed because it is unnecessarily duplicative of Count II (hostile work environment). They note that Count I alleges that Plaintiff "was subjected to sex discrimination as a result of the sexual harassment from Defendant's [sic] management and corporate staff." (Am. Compl. ¶ 52.) However, the Amended Complaint already contains a hostile work environment claim in Count II. Plaintiff has not responded to this argument. Because the Amended Complaint alleges discrimination in the form of a sexually hostile work environment, the claim in Count I is duplicative of the claim asserted in Count II.4 Therefore, the motion to dismiss Count I as duplicative will [*13] be granted. Same-Sex Harassment Title VII prohibits discrimination "because of sex." 42 U.S.C. § 2000e-2(a)(1). The PHRA contains a similar statement. 43 P.S. § 955(a). "It is clear, however, that Title VII does not prohibit discrimination based on sexual orientation." Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (citations omitted). In Bibby, the Court of Appeals discussed a Supreme Court case, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998), which "unanimously held that Title VII does provide a cause of action for same-sex sexual harassment." Id. at 262. Specifically, the court stated that: There are several situations in which same-sex harassment can be seen as discrimination because of sex. The first is where there is evidence that the harasser sexually desires the victim. [Oncale, 523 U.S.] at 80, 118 S. Ct. 998, 140 L. Ed. 2d 201. Thus, when a gay or lesbian supervisor treats [*14] a same-sex subordinate in a way that is sexually charged, it is reasonable to infer that the harasser acts as he or she does because of the victim's sex. Same-sex harassment might also be found where there is no sexual attraction but where the harasser displays hostility to the presence of a particular sex in the workplace. Id. (stating that same-sex sexual harassment could be found "if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace"). For example, a woman chief executive officer of an airline might believe that women should not be pilots and might treat women pilots with hostility amounting to harassment. Similarly, a male doctor might believe that men should not be employed as nurses, leading him to make harassing statements to a male nurse with whom he works. In each of these hypothetical situations, it would be easy to 4 It is possible, in appropriate circumstances, for a male employee to allege that his discharge constituted "reverse discrimination," see Medcalf v. Trustees of University of Pennsylvania, 71 F. App'x 924, 927 (3d Cir. 2003), but Plaintiff has not made such allegations here. 2014 U.S. Dist. LEXIS 61674, *11 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 32 of 139 Page 5 of 7 conclude that the harassment was caused by a general hostility to the presence of one sex in the workplace or in a particular work function, and, therefore, amounted to discrimination because of sex. Further, although [*15] it is less clear, a plaintiff may be able to prove that same-sex harassment was discrimination because of sex by presenting evidence that the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender. Id. at 262-63 (citations and footnote omitted). However, the court concluded that the plaintiff met none of these three scenarios because his allegations made clear that he was discriminated against because of his sexual orientation (he was gay and was called derogatory names and attacked on this basis) and thus his claims were dismissed. However, in Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009), the court held that an effeminate gay man submitted evidence from which it could be inferred that he was discriminated against either based on his sexual orientation-which is not actionable-or based on gender stereotyping- which is actionable-and the jury would have to hear the evidence and sort it out. In Bibby, the court held that "a plaintiff may be able to prove that same-sex harassment was discrimination because of sex by presenting evidence that the harasser's conduct was motivated by a belief that the victim did [*16] not conform to the stereotypes of his or her gender." 260 F.3d at 262-63. This statement clearly contemplates a fully-developed record and a motion for summary judgment or trial, not a motion to dismiss a complaint. Defendants have not cited a single case that granted a motion to dismiss under these circumstances. This is not surprising because, as the court noted in Bibby: "The question of how to prove that same-sex harassment is because of sex is not an easy one to answer." Id. at 262. Defendants argue that, although Plaintiff alleges that Taylor's actions were motivated by a belief that he did not conform to the stereotype of a heterosexual male, his allegations are insufficient because he has not alleged that he was being harassed for being effeminate. Rather, they argue that his claims are essentially that he was offended by Taylor discussing sex-related topics with him, such as asking him about his personal sex life and encouraging him to have sex more often. However, Defendants cite no authority in support of this argument, only cases in which courts permitted claims to proceed when male plaintiffs proffered evidence that they were harassed for being effeminate and/or for exhibiting [*17] characteristics of the opposite gender. This does not mean that these are the only circumstances that can support a claim of same-sex harassment based on gender stereotyping. The court in Bibby observed that the plaintiff "did not claim that he was harassed because he failed to comply with societal stereotypes of how men ought to appear or behave...." 260 F.3d at 264. See also Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 764 (6th Cir. 2006) (male private police officer who was subjected to taunts and insults from male co-workers and supervisor who thought he was a homosexual failed to state a claim for gender stereotyping because he failed to allege that he did not conform to traditional gender stereotypes in any observable way at work); but see id. at 768-70 (Lawson, J., dissenting) (observing that some of the incidents did convey that the harassers thought the plaintiff was not "masculine" enough, such as when they teased him for befriending a gay man who had filed a sexual misconduct complaint against a male doctor and when they taunted him, claiming he was "in a bad mood" and pushing a sanitary napkin in his face). Plaintiff in this case, however, is making those very claims. He [*18] has not alleged that he is homosexual or that Taylor perceived him to be. Rather, he has alleged that his refusal to conform to a gender stereotype by participating in Taylor's behavior led to further incidents of Taylor's behavior. Defendants further argue that Plaintiff's allegations are undermined by the fact that he also alleges that Taylor acted inappropriately and made similar comments to female employees. Thus, they contend that Taylor could not have been discriminating against Plaintiff "based on" his sex. Some courts have "not recognize[d] Title VII sexual harassment claims in the case of the 'equal opportunity' harasser." Holman v. Indiana, 211 F.3d 399, 403 (7th Cir. 2000) (married couple were both subjected to sexual propositions by the same male supervisor, and court concluded that he was therefore not discriminating between them). See also Hubbell v. World Kitchen, LLC, 688 F. Supp. 2d 401, 420 (W.D. Pa. 2010) (Conti, J.) (supervisor yelled at both men and women and thus did not discriminate between them); Connell v. Principi, 2007 U.S. Dist. LEXIS 81822, 2007 WL 3274185 (W.D. Pa. Nov. 5, 2007) (Cohill, J.), aff'd mem., 318 F. App'x 75 (3d Cir. 2009) (male employees could not maintain sexual harassment [*19] claim against female co-worker who yelled at and physically 2014 U.S. Dist. LEXIS 61674, *14 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 33 of 139 Page 6 of 7 threatened them, even when some incidents had a sexual component to them, because she treated female co-workers in the same way). However, Plaintiff has not alleged that Taylor was sexually propositioning both men and women or that he was treating both men and women badly. Rather, he has alleged that Taylor's comments and behavior were heterosexual in nature but that he expected men, such as Plaintiff, to join in the lewd, promiscuous and predatory talk.5 Plaintiff did not discuss his sex life, nor did he inappropriately touch or hit on employees or discuss club members in a sexual and vulgar manner. He did not agree or join in Taylor's discussion of an underage girl's body, and he intervened to break up an argument between Taylor and another employee who objected to Taylor's comment about a young girl's "ass." Plaintiff suggests that this act may have projected to Taylor that he was a more sensitive type of male (showing his "feminine side") and that such action only served to increase the severity and frequency of Taylor's actions. He has also alleged that, when he complained to the Chief Executive Officer, Dos Santos responded [*20] with more male stereotyping, asking if Plaintiff had had sex with someone Taylor knew instead of acknowledging the inappropriateness of Taylor's comments. When the record has been developed, the parties can pursue this issue further. However, it cannot be resolved in the context of a motion to dismiss. Therefore, this argument is rejected.6 Severe or Pervasive Harassment 5 Remarkably, Defendants note that Plaintiff's former co- worker, Jennifer Silber, has also filed a complaint at Civil Action No. 1:13-cv-350, in which she alleges that Taylor subjected her to sexual harassment. (ECF No. 16 at 6 n.2.) Far from demonstrating that Taylor was an "equal opportunity harasser," this information supports Plaintiff's claim that Taylor talked about sexual matters and expected men to join in his behavior. 6 The Court will not address Defendants' outrageous argument that, because Taylor allegedly told Plaintiff "you gotta get it in!" he was "attempting to encourage and support Plaintiff, not demean or tease him." (ECF No. 16 at 7.) The relevant inquiry is whether the victim indicated that the sexual remarks were unwelcome. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). Plaintiff has alleged that he indicated to Taylor [*21] that his comments were unwelcome. The United States Supreme Court has held that a plaintiff may establish a Title VII violation if he can show that discrimination based on sex created a hostile or abusive working environment. Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). The Court of Appeals has held that a plaintiff must demonstrate that: (1) []he suffered intentional discrimination because of [his sex]; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected [him]; (4) it would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability is present. Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006) (citations and footnotes omitted). Defendants incorporate their brief in support of the first partial motion to dismiss (ECF No. 16 at 4 n.1) to argue that Plaintiff cannot establish that the discrimination was severe or pervasive 7 because he referred to only two instances. However, Defendants have not accurately recited the allegations of the Complaint, which stated that, "during day-to-day operations and at frequent meetings, Mr. Taylor would often make lewd, [*22] inappropriate and unwelcome sexual remarks directed at Plaintiff and to Plaintiff about various health club members and employees." (Compl. ¶ 21.) More importantly, the Amended Complaint-which is the operative document in this case-lists a number of additional incidents. (Am. Compl. ¶ 25.) The cases that Defendant cites were decided on motions for summary judgment, not motions to dismiss. The Supreme Court has held that "the prima facie case under McDonnell Douglas ... is an evidentiary standard, not a pleading requirement." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002). The Supreme Court cited Swierkiewicz approvingly in Twombly, 550 U.S. at 555-56, and rejected the contention that it "ran counter" to Twombly's plausibility standard. In re Insurance Brokerage Antitrust Litig., 618 F.3d 300, 319 n.17 (3d Cir. 2010). Thus, Plaintiff does not have to meet the prima facie case standard of McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), [*23] in order to survive a motion to dismiss for failure to state a claim upon which relief may be granted. 7 Defendants' actual argument is that Plaintiff has not alleged harassment that was "severe and pervasive" but in Jensen, the court clarified that, pursuant to controlling Supreme Court precedent, the standard is severe or pervasive. Id. at 449 n.3. 2014 U.S. Dist. LEXIS 61674, *19 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 34 of 139 Page 7 of 7 For these reasons, the partial motion to dismiss submitted on behalf of the defendants (ECF No. 15) will be granted with respect to Count I and denied with respect to Count II. An appropriate order follows. ORDER AND NOW, this 5th day of May, 2014, IT IS HEREBY ORDERED that the partial motion to dismiss the Amended Complaint filed by Defendants (ECF No. 15) is granted with respect to Count I and denied with respect to Count II. IT IS FURTHER ORDERED that Defendants file an answer to the Amended Complaint by May 19, 2014. /s/ Robert C. Mitchell ROBERT C. MITCHELL United States Magistrate Judge End of Document 2014 U.S. Dist. LEXIS 61674, *23 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 35 of 139 Positive As of: May 17, 2017 5:38 PM Z Greer v. Mondelez Global, Inc. United States Court of Appeals for the Third Circuit January 9, 2014, Submitted Pursuant to Third Circuit LAR 34.1(a); October 22, 2014, Filed No. 12-3820 Reporter 590 Fed. Appx. 170 *; 2014 U.S. App. LEXIS 20529 **; 2014 WL 5351829 WILLIAM GREER; CARL RIVERS; MARILYN LENNOX; ROY MONTFORD; KEVIN ALDRIDGE; SUSAN BYRD; ELIZAH WARREN, JR., v. MONDELEZ GLOBAL, INC.*, Carl Rivers, Marilyn Lennox, Elizah Warren, Jr., Appellants Notice: NOT PRECEDENTIAL OPINION UNDER THIRD CIRCUIT INTERNAL OPERATING PROCEDURE RULE 5.7. SUCH OPINIONS ARE NOT REGARDED AS PRECEDENTS WHICH BIND THE COURT. PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS. Prior History: [**1] On Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil Action No. 2-09-cv-05936. (Honorable Legrome D. Davis). Case Summary Overview HOLDINGS: [1]-In this Title VII action, the employee's claims did not constitute a hostile work environment because her colleague's alleged statements, while unprofessional, were mere offensive utterances rather than severe, threatening, or humiliating conduct; [2]-No respondeat superior liability existed, as the employer's response addressed the employee's concerns and was reasonably calculated to prevent further harassment; [3]-The employee's retaliation claim failed because she did not provide evidence of any retaliatory acts that occurred following her complaint to her supervisors in February 2009. * (Amended Per Clerk's Order of 11/09/2012) Outcome Judgment affirmed. LexisNexis® Headnotes Civil Procedure > Appeals > Summary Judgment Review > Standards of Review Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Supporting Materials > General Overview Civil Procedure > ... > Summary Judgment > Opposing Materials > General Overview Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview HN1[ ] An appellate court exercises plenary review over an order granting a defendant's motion for summary judgment. A court may grant summary judgment where the moving party shows that there is no genuine issue of material fact and the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56(a). In opposing a motion for summary judgment, the nonmovant may not rely on his pleadings alone, but must produce evidence that demonstrates a genuine issue of fact for trial. Fed. R. Civ. P. 56(c), (e). If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmovant, there is no genuine issue for trial, and summary judgment must be granted in favor of the movant. Labor & Employment Law > ... > Evidence > Burdens of Proof > Burden Shifting Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 36 of 139 Page 2 of 7 Labor & Employment Law > Discrimination > Reconstruction Statutes HN2[ ] Discrimination claims under Title VII of the Civil Rights Act of 1964, as well as 42 U.S.C.S. § 1981, are governed by the McDonnell Douglas burden-shifting framework. Under this framework, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the plaintiff succeeds, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the action. If the defendant articulates such a reason, then the plaintiff has the opportunity to prove by a preponderance of the evidence that the reasons offered by the defendant were a pretext for discrimination. Labor & Employment Law > Discrimination > Reconstruction Statutes Labor & Employment Law > ... > Evidence > Burdens of Proof > Burden Shifting HN3[ ] Because the substantive elements of an employment discrimination claim brought under 42 U.S.C.S. § 1981 are identical to those brought under Title VII of the Civil Rights Act of 1964, § 1981 claims are also governed by the McDonnell Douglas burden- shifting framework. Labor & Employment Law > ... > Disparate Treatment > Evidence > Burdens of Proof HN4[ ] To prove a prima facie case of discrimination, a plaintiff must produce evidence that (1) she is a member of a protected class; (2) she was qualified for the position that she sought to attain or retain; (3) she suffered an adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of discrimination. Labor & Employment Law > ... > Employment Practices > Adverse Employment Actions > General Overview HN5[ ] An adverse employment action can generally be demonstrated by a hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Alternatively, a plaintiff may prove an adverse employment action by proving that he or she was subjected to a hostile work environment. Labor & Employment Law > ... > Racial Harassment > Burdens of Proof > General Overview Labor & Employment Law > ... > Sexual Harassment > Burdens of Proof > General Overview Labor & Employment Law > ... > Harassment > Sexual Harassment > Hostile Work Environment Labor & Employment Law > ... > Harassment > Racial Harassment > Hostile Work Environment HN6[ ] To demonstrate a hostile work environment, a plaintiff must show (1) she suffered intentional discrimination because of her sex or race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) respondeat superior liability exists. Labor & Employment Law > ... > Harassment > Racial Harassment > Hostile Work Environment Labor & Employment Law > ... > Burdens of Proof > Standards of Proof > Pervasive & Severe Standards Labor & Employment Law > ... > Harassment > Sexual Harassment > Hostile Work Environment Labor & Employment Law > ... > Burdens of Proof > Standards of Proof > Pervasive & Severe Standards HN7[ ] The threshold for pervasiveness and regularity of discriminatory conduct is high. A hostile work environment is actionable under Title VII of the Civil Rights Act of 1964 only if it is so severe and pervasive that it alters the conditions of the victim's employment and creates an abusive working environment. The environment must be objectively hostile, not just hostile in the plaintiff's view. Whether an environment is sufficiently hostile or abusive is determined by considering the totality of the circumstances, including the frequency of the conduct; its severity, and whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. 590 Fed. Appx. 170, *170; 2014 U.S. App. LEXIS 20529, **1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 37 of 139 Page 3 of 7 Labor & Employment Law > ... > Burdens of Proof > Standards of Proof > Pervasive & Severe Standards Labor & Employment Law > ... > Harassment > Sexual Harassment > Hostile Work Environment Labor & Employment Law > ... > Burdens of Proof > Standards of Proof > Pervasive & Severe Standards Labor & Employment Law > ... > Harassment > Racial Harassment > Hostile Work Environment HN8[ ] Discriminatory behavior must be sufficiently severe to establish a hostile work environment. Simple teasing, offhand comments, and isolated incidents do not amount to discriminatory changes in the terms and conditions of employment. Mere offensive utterances are insufficient to create a hostile environment, even if they engender offensive feelings in an employee. Labor & Employment Law > ... > Racial Harassment > Employer Liability > General Overview Labor & Employment Law > ... > Sexual Harassment > Employer Liability > General Overview HN9[ ] For respondeat superior liability to exist, a plaintiff must demonstrate that the employer failed to provide a reasonable avenue for complaint, or, if the employer was aware of the alleged harassment, that it failed to take appropriate action. An employer's investigation into a harassment complaint need not be perfect to satisfy this standard. Instead, whether an employer's response is adequate turns on whether the action was reasonably calculated to prevent further harassment. Labor & Employment Law > ... > Burdens of Proof > Standards of Proof > Pervasive & Severe Standards Labor & Employment Law > ... > Harassment > Sexual Harassment > Hostile Work Environment Labor & Employment Law > ... > Harassment > Racial Harassment > Hostile Work Environment Labor & Employment Law > ... > Burdens of Proof > Standards of Proof > Pervasive & Severe Standards HN10[ ] Discriminatory behavior may contribute to a hostile work environment if it produces a constructive alteration in the terms or conditions of employment in the form of severe or pervasive discrimination. Labor & Employment Law > Wrongful Termination > Constructive Discharge > Burdens of Proof HN11[ ] To make out a constructive discharge claim, a plaintiff must show greater severity or pervasiveness than the minimum required to prove a hostile working environment. Labor & Employment Law > Discrimination > Retaliation > General Overview Labor & Employment Law > ... > Statutory Application > Title VII of the Civil Rights Act of 1964 > General Overview HN12[ ] Under Title VII of the Civil Rights Act of 1964, it is unlawful for any employer to discriminate against any of his employees because the employee has opposed any practice made an unlawful employment practice by Title VII, or because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. Labor & Employment Law > ... > Statutory Application > Title VII of the Civil Rights Act of 1964 > General Overview Labor & Employment Law > ... > Retaliation > Elements > General Overview Labor & Employment Law > Discrimination > Retaliation > Burdens of Proof HN13[ ] To make out a prima facie case of retaliation, a plaintiff must show that: (1) the employee engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity; and (3) a causal link exists between the employee's protected activity and the employer's adverse action. The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 covers only those employer actions that are materially adverse to a reasonable employee or job applicant and would dissuade a reasonable worker from making or supporting a charge of discrimination. Civil Procedure > Appeals > Reviewability of Lower Court 590 Fed. Appx. 170, *170; 2014 U.S. App. LEXIS 20529, **1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 38 of 139 Page 4 of 7 Decisions > Preservation for Review HN14[ ] Appellate courts generally refuse to consider issues that the parties have not raised below. Civil Procedure > ... > Summary Judgment > Burdens of Proof > Movant Persuasion & Proof Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview HN15[ ] On a motion for summary judgment, the nonmovant must produce evidence that demonstrates a genuine issue of fact for trial. Fed. R. Civ. P. 56(c), (e). Counsel: For Marilyn Lennox, Elizah Warren, Jr., Carl Rivers, Plaintiffs - Appellants: Robert T. Vance Jr., Esq., Philadelphia, PA. For Kevin Aldridge, Susan Byrd, William Greer, Roy Montford, Plaintiffs: Robert T. Vance Jr., Esq., Philadelphia, PA. For Mondelez Global Llc, Defendant - Appellee: Michon L. Crawford, Esq., Yvonne B. Montgomery, Esq., Joe H. Tucker Jr., Esq., Tucker Law Group, Philadelphia, PA. Judges: Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges. Opinion by: SCIRICA Opinion [*171] OPINION OF THE COURT SCIRICA, Circuit Judge. Plaintiff Marilyn Lennox brought suit against Kraft Foods Global, Inc., asserting claims of employment discrimination and retaliation in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d and 2000e (hereinafter "Title VII"), together with a claim for a violation of the Pennsylvania Wage Payment and Collection Law, 43 Pa. Cons. Stat. § 260.1, for withholding wages from her. The District Court, in a thorough opinion, granted Kraft's motion for summary judgment on all counts, holding that Lennox's allegations did not constitute an actionable discrimination claim [**2] under Title VII. The court also dismissed her unpaid wages claim for lack of evidence. Lennox filed a timely notice of appeal and seeks relief on all counts. We will affirm.1 I. Plaintiff Marilyn Lennox worked as a Distribution Center Supervisor at Kraft's Philadelphia bakery from September 2008 until November 2009. Lennox, an African-American woman, alleges she was subjected to a series of racially and sexually discriminatory actions and retaliation by her coworkers during her time at Kraft. To support her claim of discrimination, she testified to comments and acts made by her colleagues over the course of five months that she contends constitute discrimination and retaliation.2 [*172] Lennox reports that these incidents began in November 2008, but articulates no race based incidents after January 2009 and no incidents of any kind after March 2009. She reports complaining to her supervisors about these incidents in February and March 2009. In October 2009, Kraft approached Lennox to revisit her individual development plan and to discuss an opportunity for promotion to front line production coach, a position two grade levels higher than the position she held at the time. Despite the opportunity for advancement described by Kraft, Lennox submitted [**4] a letter of resignation on October 26, 2009, and worked for two more weeks until her employment ended in November 2009. II. 1 The District Court had jurisdiction over this action pursuant to 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. 2 Most of these acts and comments came from co-workers Chu and Ozias: that she probably voted for Obama; that a hip- hop magazine must be hers; that she probably lived in a rough area; that she probably listened to rap and R&B; that the reason she did not have a boyfriend was because she was hardheaded; a question as to where she lived since she is a young woman; a question as to whether she was wearing her [**3] pajamas at work; a reference to her as being "prissy" and "Miss Princess"; a colleague pressuring her to swap vacation times; her trainer responding harshly when she asked how to perform some tasks; a colleague making a racially offensive joke in her presence (although not toward her); a colleague telling Lennox that a fellow employee did not like her; a colleague asking her to write up an employee for a violation that Lennox did not believe the employee had committed; a pornographic magazine being left out on a piece of machinery in the factory; and a sexually suggestive image being posted on the refrigerator in the break room. 590 Fed. Appx. 170, *170; 2014 U.S. App. LEXIS 20529, **1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 39 of 139 Page 5 of 7 Lennox argues on appeal that the District Court erred in granting summary judgment3 to Kraft because (1) there were genuine issues of material fact concerning whether she suffered an adverse employment action and thus demonstrated a prima facie case of discrimination; (2) she proved the elements of a retaliation claim under Title VII; and (3) there were genuine issues of material fact as to whether Kraft withheld wages from her. A. HN2[ ] Discrimination claims under Title VII, as well as § 1981,4 are governed by a burden-shifting framework outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under this framework, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Id. at 802. If the plaintiff succeeds, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the action. Id. If the defendant articulates such a reason, then the plaintiff has the opportunity to prove by a preponderance of the evidence that the reasons offered by the defendant were a pretext for discrimination. Id. HN4[ ] To prove a prima facie case of discrimination, a plaintiff must produce evidence that (1) she is a member of a protected class; (2) she was qualified for the position that she sought to attain or retain; (3) she 3 HN1[ ] We exercise plenary review over an order granting a defendant's motion for summary judgment. Miller v. Eichelay Eng'rs, 886 F.2d 30, 35 (3d Cir. 1989). A court may grant summary judgment where the moving party shows that "there is no genuine issue of material fact and the movant is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(a). In opposing a motion for summary judgment, the nonmovant may not rely on his pleadings alone, but must produce evidence that demonstrates a genuine issue of fact for trial. Fed. R. Civ. P. 56(c) & (e). If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmovant, there is no genuine issue for trial, and summary judgment must be granted in favor of the movant. [**5] Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). 4 HN3[ ] Because the substantive elements of an employment discrimination claim brought under § 1981 are identical to those brought under Title VII, § 1981 claims are also governed by the McDonnell Douglas burden-shifting framework. Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d Cir. 2010); see also Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009). [*173] suffered an adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-12 (3d Cir. 1999). Kraft [**6] does not contest the first or second element, but contends that Lennox did not suffer any adverse employment action and thus cannot establish a prima facie case of discrimination.5 HN5[ ] An adverse employment action can generally be demonstrated by a hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 749, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998). Alternatively, a plaintiff may prove an adverse employment action by proving that he or she was subjected to a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986); see also Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001) (holding that a hostile work environment is a basis for various discrimination claims, including § 1981 claims). Lennox contends she suffered an adverse employment action in the form of a hostile work environment. HN6[ ] To demonstrate a hostile work environment, a plaintiff must show (1) she suffered intentional discrimination because of her sex or race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; [**7] (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) respondeat superior liability exists. Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990). HN7[ ] The threshold for pervasiveness and regularity of discriminatory conduct is high. A hostile work environment is actionable under Title VII only if it is so severe and pervasive that it "alters the conditions of the victim's employment" and creates an "abusive working environment." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001). The environment must be objectively hostile, not just hostile in the plaintiff's view. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). Whether an environment is sufficiently hostile or abusive is determined by considering the 5 Because we find Lennox failed to demonstrate an adverse employment action, we need not address the fourth element, which deals with whether a discriminatory inference can be drawn from such an action. 590 Fed. Appx. 170, *172; 2014 U.S. App. LEXIS 20529, **3 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 40 of 139 Page 6 of 7 totality of the circumstances, including the "frequency of the conduct; its severity, and whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Breeden, 532 U.S. at 271 (quotation marks and internal citations omitted). Lennox's claim fails because the conduct she alleges does not rise to the level of severity necessary to prove a hostile work environment. HN8[ ] Discriminatory behavior must be sufficiently severe to establish a hostile work environment. Simple teasing, offhand comments, and isolated incidents [**8] do not amount to "discriminatory changes in the terms and conditions of employment." Id. (quoting Faragher v. Boca Raton, 524 U.S. 775, 786, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)). "Mere offensive utterances" are insufficient to create a hostile environment, even if they engender offensive feelings in an employee. Id.; see Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005). In Weston v. Pennsylvania, we found that a plaintiff's allegation that he was subjected to a series of offensive "comments, jokes and jibes" [*174] was insufficient to state a Title VII claim, absent a change in a "term, condition or privilege" in his employment. 251 F.3d 420, 427-28 (3d Cir. 2001), abrogated on other grounds as recognized by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). Lennox's claims do not constitute a hostile work environment because her colleague's alleged statements, while unprofessional, are "mere offensive utterances" rather than severe, threatening, or humiliating conduct. Breeden, 532 U.S. at 271. Lennox does not show how the alleged statements that suggest racial animus are objectively hostile acts that altered the "terms and conditions" of her employment. Id. at 270. She also fails to show how the comments support her claim that her workplace was "permeated with discriminatory intimidation, ridicule, and insult." Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 67). Taken together, these comments are not the type of severe and pervasive conduct necessary to constitute [**9] a hostile work environment. The alleged acts, although unprofessional, similarly do not constitute an "objective change in the conditions" of her employment. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 205 (3d Cir. 2001) (quoting Faragher, 524 U.S. at 787). Considering all of Lennox's allegations together, they do not give rise to a triable issue of fact concerning whether Lennox was subjected to a hostile work environment. Moreover, Lennox cannot establish respondeat superior liability by Kraft. HN9[ ] For respondeat superior liability to exist, a plaintiff must "demonstrate that the employer failed to provide a reasonable avenue for complaint, or, if the employer was aware of the alleged harassment, that it failed to take appropriate action." Weston, 251 F.3d at 427. An employer's investigation into a harassment complaint need not be perfect to satisfy this standard. Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997). Instead, whether an employer's response is adequate turns on "whether the action was reasonably calculated to prevent further harassment." Id. The only concrete instance in which Lennox reported a racial incident to Kraft occurred in a February 2009 email.6 In response to Lennox's email, Kraft met with the employees involved in the alleged incident and ordered them to stop making the comments. Lennox cannot point to any specific racial [**10] incident that she reported or articulate the occurrence of any concrete event after Kraft's meeting with the employees. Accordingly, no respondeat superior liability exists, as Kraft's response addressed Lennox's concerns and was "reasonably calculated to prevent further harassment." See id. Finally, Lennox fails to show that her colleagues' behavior created a hostile work environment by unreasonably interfering with her employment. HN10[ ] Discriminatory behavior may also contribute to a hostile work environment if it produces a "constructive alteration in the terms or conditions of employment" in the form of severe or pervasive discrimination. Burlington Indus., Inc., 524 U.S. at 752. Lennox fails to demonstrate any such constructive alteration. She stayed at Kraft for eight months following the final recorded incident of discriminatory behavior, until she voluntarily resigned.7 [*175] During this time, Lennox 6 Although Kraft supplied an independent Helpline on which to report complaints, Lennox never used the line to report any of her concerns. 7 Lennox also contends that she was constructively discharged from Kraft, and that this discharge constitutes an adverse [**11] employment action. HN11[ ] To make out a constructive discharge claim, a plaintiff must show greater severity or pervasiveness than the minimum required to prove a hostile working environment. Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 n. 4 (3d Cir. 2006) (quoting Landgraf v. USI Film Prods.., 968 F.2d 427, 430 (5th Cir. 1992), aff'd, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994)). Because Lennox failed to establish conduct sufficient to establish a hostile work environment, her constructive discharge claim fails. Further, Lennox continued to work at 590 Fed. Appx. 170, *173; 2014 U.S. App. LEXIS 20529, **7 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 41 of 139 Page 7 of 7 did not complain to her supervisors about any incidents of discriminatory conduct. Considering the totality of the circumstances, the conduct Lennox alleges does not rise to the level of severity, pervasiveness, and regularity required for a hostile work environment claim. Accordingly, we find the District Court correctly granted summary judgment on Lennox's claim of discrimination under 42 U.S.C. § 1981 and Title VII. B. Lennox's second claim is that the court erred in granting summary judgment to Kraft on her retaliation claim. HN12[ ] Under Title VII, it is unlawful "for any employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [**12] [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." Breeden, 532 U.S. at 269. HN13[ ] To make out a prima facie case of retaliation, "a plaintiff must show that: (1) the employee engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity; and (3) a causal link exists between the employee's protected activity and the employer's adverse action." Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 1999). The anti-retaliation provision of Title VII covers only those employer actions that are "materially adverse to a reasonable employee or job applicant" and would "dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). Lennox's retaliation claim fails because she does not provide evidence of any retaliatory acts that occurred following her complaint to her supervisors in February 2009. She alleges only that her supervisors failed to respond to her complaints and that her colleagues' behavior did not improve. On the evidence presented, this is not enough to support a claim of retaliation. Accordingly, we agree with the District Court that Lennox fails to [**13] demonstrate retaliation.8 Kraft for eight months past the last reported discriminatory incident, which undermines her argument that she had no choice but to resign in light of the discriminatory acts. C. Finally, Lennox challenges the court's grant of summary judgment on the unpaid wages claim. Lennox alleges Kraft failed to pay her for the last week that she worked, but she fails to provide any evidence that she was not paid. And Kraft has produced evidence that she was paid. [*176] HN15[ ] On a motion for summary judgment, the nonmovant must produce evidence that demonstrates a genuine issue of fact for trial. Fed. R. Civ. P. 56(c) & (e). Lennox has failed to meet her burden. Accordingly, we will affirm the District Court's grant of summary judgment in Kraft's favor. III. For the foregoing reasons, we will affirm the District Court's order granting summary judgment to Kraft. End of Document 8 Lennox argues on appeal that her supervisor retaliated in the form of an offer to transfer into another department. Because she does not raise this issue until the appellant's reply brief, neither Kraft nor the District Court had the opportunity to consider it. HN14[ ] "We generally refuse to consider issues that the parties have not raised below." Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d 240, 249 (3d Cir. 2013). Accordingly, we decline to address it. 590 Fed. Appx. 170, *175; 2014 U.S. App. LEXIS 20529, **11 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 42 of 139 Cited As of: May 17, 2017 5:36 PM Z Peacock v. UPMC Presbyterian United States District Court for the Western District of Pennsylvania March 9, 2016, Decided; March 9, 2016, Filed Civil Action No. 15-547 Reporter 2016 U.S. Dist. LEXIS 30189 *; 2016 WL 890574 LAURA PEACOCK, Plaintiff, v. UPMC PRESBYTERIAN1, Defendant. Counsel: [*1] For LAURA PEACOCK, Plaintiff: Christi M. Wallace, LEAD ATTORNEY, Kraemer, Manes and Associates, LLC, Pittsburgh, PA. For UPMC PRESBYTERIAN, Defendant: James F. Glunt, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Pittsburgh, PA; Jennifer G. Betts, Ogletree Deakins Nash Smoak & Stewart, Pittsburgh, PA. Judges: Cathy Bissoon, United States District Judge. Opinion by: Cathy Bissoon Opinion MEMORANDUM ORDER Defendant's Partial Motion to Dismiss (Doc. 10) will be GRANTED. On April 28, 2015, Plaintiff filed a two-count Complaint (Doc. 1) asserting her termination from UPMC Presbyterian Shadyside was in violation of Title VII of the Civil Rights Act of 1964 because of her sexual orientation, gender and religion. On June 30, 2015, Defendant filed a Motion for Partial Dismissal stating that sexual orientation was not covered under Title VII. Doc. 6. Then, on July 7, 2015, Plaintiff filed an Amended two-count Complaint, substituting her sexual orientation claim with a sexual harassment claim. Doc. 9. Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant filed the instant Partial Motion to Dismiss on July 10, 1 Defendant informs the Court the caption should read UPMC Presbyterian Shadyside. Doc. 10. Should Defendant wish for the caption to reflect this, a motion must be filed. 2015, arguing Plaintiff has failed to state a claim under for sexual harassment Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. Doc. 10. Plaintiff cites three [*2] specific events to form the basis for her sexual harassment claim. See generally Doc. 9 at ¶ 15. 1. In October of 2013, when making a request for time off, Plaintiff informed Ken Powers, her Team Lead, she wanted the time off to spend with her friend Ellen. Doc. 9 at ¶ 15(a)(i). Mr. Powers responded by asking, "Is Ellen your girlfriend?" Id. 2. On October 24, 2013, upon completion of her morning decontamination run, Mr. Powers asked Plaintiff what she had brought back with her from the morning run. Plaintiff informed Mr. Powers that she brought back, among other things, a pole. Id. at ¶ 15(a)(ii). Mr. Powers responded by asking, "Any attachments to that pole?" Plaintiff asked, "Like what?" Id. To which, Mr. Powers said "You're a lesbian of course you know what a snap-on is." Id. 3. The third incident occurred in Central Supply where a call came in for a scrotum sling. Id. at ¶ 15(a)(ii)2. The male employees thought the request was funny and called it a "ball sack," presumably in Plaintiff's presence. Id. Plaintiff concedes that she is relying on only these [*3] three incidents to establish her claim for sexual harassment. Doc. 13 at 2. While she indicates in briefing that these instances are representative of the overall environment and that she was subjected to this type of behavior on a daily basis, these are the only facts she pleads to support her claim. Compare id. with Doc. 9 at 2 Plaintiff's Amended Complaint contains two paragraphs 15(a)(ii). This second reference refers to what should be paragraph 15(a)(iii). Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 43 of 139 Page 2 of 2 ¶15. To state a prima facie claim of hostile work environment sexual harassment, a plaintiff must plead that: (i) she suffered intentional discrimination because of her sex; (ii) the discrimination was severe or pervasive; (iii) the discrimination detrimentally affected her; and (iv) the discrimination would negatively affect a reasonable person in Plaintiff's position. Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir.1990). To rise to the level of actionable harassment, "the workplace [must be] permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993) (internal quotations omitted); see also Hodson v. Alpine Manor, 512 F. Supp. 2d 373, 387 (W.D. Pa. 2007) (holding that a plaintiff must show that she was subjected to "repeated, if not persistent acts of harassment"). Accepting as true all allegations related to Plaintiff's sexual harassment [*4] claim, as inappropriate for the workplace as the conduct may be, the Court finds the facts contained in the Amended Complaint fail to establish a viable claim. Simply put, on this record, this behavior does not rise to an actionable level. These three incidents, even when taken together, are neither sufficiently severe nor pervasive to establish a hostile work environment claim. As Defendant has highlighted in its brief, courts have granted motions to dismiss hostile work environment harassment claims based on allegations significantly more severe and pervasive than those pled by Plaintiff here. Doc. 11 at 4. See, e.g., Davis v. City of Newark, 285 Fed. App'x 899, 901-903 (3d Cir. 2008) (granting motion to dismiss and holding that ten incidents of alleged inappropriate racially- motivated harassment over a ten-year period is not sufficiently severe or pervasive); Gonzalez v. Potter, No. 09-0534, 2010 U.S. Dist. LEXIS 53402, 2010 WL 2196287, at *5 (W.D. Pa. June 1, 2010) (granting motion to dismiss and holding that the issuance of two letters of reprimand over a four-month long period alleged because of the plaintiff's sex is not sufficiently severe or pervasive); Porta v. Dukes, No. CIV. A. 98- 2721, 1998 U.S. Dist. LEXIS 12325 1998 WL 470146, at **1-3 (E.D. Pa. Aug. 11, 1998) (granting motion to dismiss and holding that a male supervisor's alleged comments to the plaintiff that "[t]he last time I saw you, you were quiet, a virgin, and unmarried," "when the cat's away the [*5] mice will play," and "[you are] filling out nicely and have good child bearing hips" are not sufficiently severe or pervasive). Consistent with the foregoing, Defendant's Partial Motion to Dismiss Plaintiff's Title VII claim for sexual harassment (Doc. 10) is GRANTED. IT IS SO ORDERED. March 9, 2016 /s/ Cathy Bissoon Cathy Bissoon United States District Judge End of Document 2016 U.S. Dist. LEXIS 30189, *3 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 44 of 139 Caution As of: May 17, 2017 5:38 PM Z Kaniuka v. Good Shepherd Home United States District Court for the Eastern District of Pennsylvania August 15, 2006, Decided CIVIL ACTION NO. 05-CV-02917 Reporter 2006 U.S. Dist. LEXIS 57403 *; 18 Am. Disabilities Cas. (BNA) 703 ELVIA KANIUKA, Plaintiff, v. GOOD SHEPHERD HOME, et al., Defendants. Prior History: Kaniuka v. Good Shepherd Home, 2005 U.S. Dist. LEXIS 26963 (E.D. Pa., Nov. 3, 2005) Counsel: [*1] For ELVIA KANIUKA, Plaintiff: DAVID DERATZIAN, GEORGE S. KOUNOUPIS, HAHALIS & KOUNOUPIS, PC, BETHLEHEM, PA. For GOOD SHEPHERD HOME, Defendant: STEVEN E. HOFFMAN, DAVID R. KEENE, II, TALLMAN HUDDERS & SORRENTINO PC, ALLENTOWN, PA. For LARRY GREENE, Defendant: STEVEN E. HOFFMAN, TALLMAN HUDDERS & SORRENTINO PC, ALLENTOWN, PA. Judges: LAWRENCE F. STENGEL, J. Opinion by: LAWRENCE F. STENGEL Opinion MEMORANDUM AND ORDER Stengel, J. This employment discrimination action pits Elvia Kaniuka ("Plaintiff"), a certified nursing assistant, against her former employer Good Shepherd Home ("Good Shepherd" or the "home"). Plaintiff alleges that Good Shepherd and its employees "regarded" her as disabled and terminated her employment in violation of federal and state law. Good Shepherd and defendant Larry Greene (collectively "Defendants") have filed a Motion for Summary Judgment on each of Plaintiff's claims. For the reasons that follow, I will grant Defendants' motion with respect to all of Plaintiff's claims, except for her allegation of retaliation under the Family and Medical Leave Act of 1993. I. BACKGROUND Good Shepherd employed Plaintiff as a Certified Nursing Assistant [*2] ("CNA"). Plaintiff's responsibilities as a CNA included providing medical care and assistance to Good Shepherd's patients. Good Shepherd scheduled Plaintiff to work a double shift on January 8 and 9, 2004. Specifically, Plaintiff was scheduled to work continuously from 3:00 p.m. on January 8, 2004, to 7:00 a.m. on January 9, 2004. At approximately 11:45 p.m. on January 8, 2004, Plaintiff requested and received permission to drive her husband Seth Kaniuka, who also worked at Good Shepherd, to their nearby home. Plaintiff returned to work between 12:15 a.m. and 12:30 a.m. on January 9, 2004. Upon her return to work, Plaintiff's co-worker Kimberly Sherry noticed Plaintiff wearing sunglasses inside the home and observed that she "did not seem like herself." For example, when Sherry asked Plaintiff to assist her in a patient's room, Plaintiff did not respond and simply walked away. Defendants claim that Sherry discovered Plaintiff sleeping on duty at the "back desk" of the nurse's station at approximately 1:15 a.m. on January 9, 2004. Plaintiff contends that she did not sleep on duty, but had instead become ill and unresponsive. In any event, it is clear that another of Plaintiff's co-workers, [*3] Jayne Sigler, suggested that Plaintiff take a break from her duties, and Plaintiff fell asleep in the employee lounge and dining area. At approximately 2:15 a.m., Sigler attempted to wake Plaintiff in the employee lounge, but Plaintiff did not respond and did not completely regain consciousness. Instead, she appeared groggy and could not stand up on her own. Sigler then contacted Courtney Sneath, Good Shepherd's night shift supervisor, and informed her of Plaintiff's condition. When Sneath attempted to question Plaintiff, the only Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 45 of 139 Page 2 of 10 information she could elicit was that Plaintiff had taken several tablets of ibuprofen at some point during her shifts. Thereafter, Sneath instructed Plaintiff to sleep in one of the home's overflow rooms, and Good Shepherd's employees transported her by wheelchair to an overflow room. Sherry found a note written by Plaintiff in Spanish in Plaintiff's purse shortly after she was taken to the overflow room. Sherry gave the note to Sneath, who had it translated by a Good Shepherd employee to read, in part: "I will never forget those who I love the most in my life: my family, my sons, my husband . . . I don't want to blame anyone, but I feel so [unfortunate [*4] or disgraced] for everything that has occurred that I feel like dying. . . ." Defendants contend that this translation suggested to Good Shepherd's employees that Plaintiff may have been contemplating suicide. Plaintiff, by contrast, argues that the note was not intended as a suicide note and that Plaintiff did not contemplate or attempt to commit suicide. Sneath immediately called 911 upon receiving the note's translation, and an ambulance transported Plaintiff to the emergency room at Sacred Heart Hospital in Allentown, Pennsylvania. After the ambulance transporting Plaintiff to Sacred Heart left the home, Sherry found another note written in Spanish by Plaintiff. A Good Shepherd employee interpreted the second note to read, in part: "My life is over from the moment I lost my family. The love is finished. Finished!" Plaintiff disputes Defendants' translation of the second note, and provided a different version at her deposition: "My vida - - my life is over and the moment I've lost my family, love -- lost the love -- lost everything and start the pain." At approximately 7:00 a.m. on January 9, 2004, Seth Kaniuka contacted Sigler by telephone to discuss the events of the prior evening. [*5] Mr. Kaniuka informed Sigler that he believed some of his Klonopin(R) tm, a prescription anti-seizure medication, was missing from the home he shared with Plaintiff. Symptoms of a Klonopin(R) tm over-dosage include somnolence, confusion, coma, and diminished reflexes. A number of records regarding Plaintiff's condition and her statements related thereto were generated at and on the way to Sacred Heart Hospital. An Emergency Medical Services Patient Report provides: "[Plaintiff] stated that she is upset and did want to kill herself, she took a handful of Klonopin (more than 10 pills)." Medical records from the hospital provide that she was admitted on January 9, 2004, for a suicide attempt by intentional drug overdose. Plaintiff's Psychiatric Assessment and Master Treatment Plan also indicate that she attempted suicide, and the hospital's Emergency Department Report, dated January 9, 2004, identifies Plaintiff's chief complaint as: "Overdose. (She wants to die.)." Hospital interview notes taken at 5:00 a.m. on January 9, 2004, provide that: "Upon being interviewed, stated she had taken 10-16 pills (Klonopin) that belonged to her husband for his seizures and that it was a 'split decision. [*6] '" Finally, hospital interview notes dated January 12, 2004, indicate that "[Plaintiff] refers to her suicide attempt as a stupid act." Plaintiff admits that the reports and notes contain these statements, but denies that she ever made them. Larry Greene is Good Shepherd's Director of Employee Relations. In this capacity, Greene conducted an investigation of the events leading to Plaintiff's inability to work during her second shift on January 8 and 9, 2004. Greene interviewed a number of Good Shepherd employees as a part of this investigation, including Seth Kaniuka. Mr. Kaniuka informed Greene during an interview that he (Mr. Kaniuka) believed between 10-15 of his KlonopinA tm pills were missing, and that he believed Plaintiff had ingested them. Plaintiff has testified that she did not take any of Mr. Kaniuka's KlonopinA tm medication. Mr. Kaniuka also informed Greene during the investigation that he and Plaintiff were having marital problems. Tracy Gilson, who presently lives and has a child with Seth Kaniuka, informed Greene of a phone call that she received from Plaintiff after her discharge from Sacred Heart Hospital. Gilson testified that Plaintiff blamed her for ruining Plaintiff's [*7] marriage, and cited Gilson as one of the reasons for her attempted suicide. Plaintiff admits to calling Gilson at work on several occasions, but stated in an affidavit that Gilson refused to speak with her and denies that she ever discussed attempting suicide with Gilson. Upon completing his investigation, Greene concluded that Plaintiff had intentionally ingested prescription medication that had not been prescribed to her. As a result, she violated Good Shepherd's Drug and Alcohol Screening policy, 1 reported to work unfit for duty, and had therefore endangered the safety of the Good Shepherd patients for whom she was responsible. 1 Good Shepherd's Drug and Alcohol Screening policy expressly prohibits employees from reporting to work under the influence of prescription drugs used for other than prescribed purposes. 2006 U.S. Dist. LEXIS 57403, *3 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 46 of 139 Page 3 of 10 Greene recommended to Jolene Klotz, Plaintiff's immediate supervisor, that Plaintiff's employment be terminated. Klotz terminated Plaintiff's employment by issuing a memorandum dated January 21, 2004. Plaintiff provided Greene with a note from Dr. Farhad Sholevar, her treating physician, at some point before being terminated. The note indicated that Plaintiff would be medically released to return to work at the home on January 21, 2004. [*8] Plaintiff commenced this action on June 20, 2005. The Amended Complaint 2 alleges claims for (1) violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131 et seq. (the "ADA"); (2) retaliation under the ADA; (3) violation of the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. § 951 et seq. (the "PHRA"); (4) aiding and abetting in violation of the PHRA; (5) retaliation under the PHRA; (6) violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (the "FMLA"), and (7) intentional infliction of emotional distress ("IIED"). The Amended Complaint seeks injunctive and declaratory relief for Defendants' actions, as well as $ 100,000 in compensatory damages. After considering a Motion to Dismiss the Amended Complaint filed on September 19, 2005, I dismissed Plaintiff's IIED claim in a Memorandum and Order dated November 3, 2005. The [*9] Amended Complaint originally named Good Shepherd, Greene, Jayne Sigler, and Courtney Sneath as defendants in this case, but a joint stipulation between the parties on June 19, 2006 terminated Sigler and Sneath as defendants. Defendants filed this Motion for Summary Judgment on June 29, 2006. II. STANDARD FOR SUMMARY JUDGMENT Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" when a reasonable jury could return a verdict for the non- moving party based on the evidence in the record. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A factual dispute is "material" when it could affect the outcome of the case under the governing law. Id. 2 Plaintiff amended her initial Complaint on July 19, 2005. A party seeking summary judgment initially bears responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate [*10] the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial Celotex burden can be met simply by demonstrating "to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Under Rule 56 of the Federal Rules of Civil Procedure, the court must view the evidence in the record in the light most favorable [*11] to the non-moving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Id. at 252. If the non-moving party has produced more than a "mere scintilla of evidence" demonstrating a genuine issue of material fact, then the court may not credit the moving party's version of events against the opponent, even if the quantity of the moving party's evidence far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). III. DISCUSSION A. The ADA and PHRA Discrimination Claims 3 [*12] The ADA prohibits discrimination "against a qualified individual with a disability because of the 3 The PHRA is generally applied in conformance with the ADA, and "Pennsylvania courts . . . generally interpret the PHRA in accord with its federal counterparts." Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002) (quoting Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)). The following ADA discrimination analysis therefore applies equally to Plaintiff's PHRA discrimination claim. 2006 U.S. Dist. LEXIS 57403, *7 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 47 of 139 Page 4 of 10 disability of such individual in regard to . . . [the] terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). Courts analyzing ADA claims based on circumstantial evidence apply the burden-shifting framework first established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802- 4, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000); Olson v. Gen'l Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). 4 [*13] To avoid summary judgment on an ADA claim, a plaintiff must first establish a prima facie case of unlawful discrimination. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999). Should the plaintiff successfully demonstrate her prima facie case, the burden shifts to the defendant employer to show a legitimate, non-discriminatory reason for its employment action. See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). If the employer makes this showing, the burden then shifts backs to the plaintiff, who must "point to some evidence, direct or circumstantial, from which a fact finder could reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause" of the employment decision. Id. 1. Prima Facie Case of Unlawful Discrimination Defendants argue first that Plaintiff cannot establish her prima facie case of discrimination because she is not "disabled" within the meaning of the ADA. I agree with Defendants because (1) Plaintiff has failed to demonstrate that her impairment [*14] is "permanent or long term;" and (2) Defendants had no knowledge of 4 A plaintiff may also advance an ADA discrimination claim with direct evidence of discrimination by meeting the requirements of the "mixed-motive" analysis established in Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989). The direct evidence required by the mixed motive analysis "must be such that it demonstrates that the decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision." Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir. 1998) (citations and quotations omitted). A mixed- motive theory of discrimination has not been raised by either party, and there is no such direct evidence of discrimination in the record. Accordingly, I will analyze Plaintiff's ADA discrimination claim under the McDonnell Douglas burden- shifting framework. Plaintiff's impairment. To establish a prima facie case of unlawful discrimination under the ADA, a plaintiff must demonstrate that she (1) has a "disability" within the meaning of the statute; (2) is a "qualified individual with a disability;" and (3) has suffered an adverse employment action because of that disability. 5 Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998). I note that the Supreme Court has held that whether a person has a disability under the ADA is a highly individualized determination. See Sutton v. United Airlines, 527 U.S. 471, 483, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999). The issue of whether Plaintiff's condition is a disability as statutorily defined is therefore limited to the facts of this case. a. Disability [*15] The ADA defines a "disability" as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). The parties agree that Plaintiff is proceeding under the third, or "regarded as having . . . an impairment," definition of disability. The Code of Federal Regulations (the "CFR") defines an individual who is "regarded as having . . . an impairment" as a person who: (1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitude of others toward such impairment; or (3) Has none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment. 29 C.F.R. § 1630.2 (l). Thus, to meet her initial McDonnell Douglas burden, Plaintiff must demonstrate [*16] that (1) she has a physical or mental impairment; and (2) her impairment "substantially limits" one of her major life activities. 5 It is uncontested that termination is an adverse employment action. Thus, it is unnecessary to analyze whether Plaintiff meets the third element of her prima facie case. 2006 U.S. Dist. LEXIS 57403, *12 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 48 of 139 Page 5 of 10 i. Physical or Mental Impairment The CFR defines a "physical or mental impairment" as either: (1) Any 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), cardiovascular, reproductive, digestive, genito- urinary, hemic and lymphatic, skin, and endocrine; or (2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h). Here, Plaintiff appears to allege that Good Shepherd regarded her as having a physical or mental impairment because she had intentionally overdosed on prescription drugs. 6 The ADA protects individuals who are erroneously viewed as using illegal drugs, but who are not actually using illegal drugs. See 42 U.S.C. § 12114(b)(3) (an individual who is "erroneously regarded [*17] as engaging in [illegal drug] use, but is not engaging in such use," is not excluded from the definition of a "qualified individual with a disability"). 7 The record is replete with evidence that Good Shepherd terminated Plaintiff's employment, inter alia, based on its belief that she had illegally ingested prescription drugs and was therefore either physically or mentally unable to perform her duties. See, e.g., Investigation Notes of Elvia Kaniuka Incident at 10; Green Dep. at 92-93. A reasonable jury could certainly find that Good Shepherd treated Plaintiff as having a disorder within the meaning of 29 C.F.R. § 1630.2(h), and there is a genuine issue of material fact as to whether Plaintiff has a physical or mental impairment. [*18] ii. Substantially Limits a Major Life Activity 6 Plaintiff argued in her opposition to Defendants' Motion to Dismiss that she suffered from mental disabilities of anxiety and depression as well as from vertigo symptoms. She has apparently dropped these theories of impairment in her opposition to the instant Motion for Summary Judgment. 7 The "illegal use of drugs" includes the use of prescription drugs by an unauthorized individual. See 42 U.S.C. § 12111(6). Plaintiff contends that as a result of her condition on January 8 and 9, 2004, she was substantially limited in the major life activity of working. A "major life activity" is one which is "of central importance to daily life." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681, 151 L. Ed. 2d 615 (2002). See also 29 C.F.R. § 1630.2(i) ("Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working"). Working is specifically listed by the CFR as an example of a major life activity. Thus, the issue of whether Plaintiff is disabled turns on whether her impairment "substantially limits" her ability to work. The CFR states that the term "substantially limits" means: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under [*19] which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j). The CFR also identifies a number of factors that courts are to consider when determining whether an individual's impairment is substantially limiting, including: (1) the nature and severity of the impairment; (2) the impairment's duration or expected duration; and (3) the impairment's permanent or long- term impact. 29 C.F.R. § 1630.2(j)(2). Congress did not intend the ADA to protect minor impairments or medical difficulties. Rather, "Congress desired to shield from adverse employment actions those individuals whose medical troubles prevent[] them from engaging in significant daily activities." Marinelli v. City of Erie, 216 F.3d 354, 356, 366 (3d Cir. 2000). Intermittent, isolated, or episodic impairments do not constitute disabilities under the ADA. See Rinehimer, 292 F.3d at 380 ("[A] temporary or non-chronic impairment of short duration is not a disability covered by the ADA") (citing McDonald v. Pa. Dep't of Pub. Welfare, Polk Ctr., 62 F.3d 92, 96 (3d Cir. 1995)). [*20] The plaintiff bears the burden of demonstrating that her impairment's impact is "permanent or long term." Toyota Mfg., 534 U.S. at 198. In this case, Plaintiff has failed to offer any evidence demonstrating that a reasonable jury could find that her impairment is or was "permanent or long term." There is 2006 U.S. Dist. LEXIS 57403, *16 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 49 of 139 Page 6 of 10 simply nothing in the record suggesting that Plaintiff's condition on January 8 and 9, 2004 was anything other than temporary. She has not presented any evidence showing that a similar episode occurred prior to January 9, 2004. Nor has she shown any similar episodes occurring after that date, or any other evidence that would allow me to find that she was similarly impaired on other occasions. Plaintiff has not met her burden of demonstrating that her impairment is "permanent or long term," and her impairment therefore does not "substantially limit" her ability to work. As a result, there is no genuine issue of material fact as to whether Plaintiff is "disabled" under the ADA, and she has not established an essential element of her prima facie case of discrimination. Accordingly, I will grant Defendants' Motion for Summary Judgment as to Plaintiff's ADA and PHRA [*21] discrimination claims. b. Good Shepherd's Knowledge of the Disability Even if I were to find that the issue of whether Plaintiff is disabled is one for trial, she has still failed to establish her prima facie case because there is no evidence that Good Shepherd knew of Plaintiff's disability. The Third Circuit has held that an employer must know of an employee's disability to create a "regarded as" claim under the ADA. Rinehimer, 292 F.3d at 381; Phoenixville Sch. Dist., 184 F.3d at 313. In fact, an employer must regard "the employee to be suffering from an impairment within the meaning of the statute[], not just that the employer believed the employee to be somehow disabled." Rinehimer, 292 F.3d at 381 (emphasis added). In this case, Defendants have established that the record lacks any evidence demonstrating that Good Shepherd or its employees knew that Plaintiff's condition on January 8 and 9, 2004 was due to an impairment within the meaning of the ADA. Moreover, they have provided affirmative evidence that the persons responsible for Plaintiff's termination had no such knowledge. See Greene Aff. at P 25 (averring [*22] that Greene had no knowledge that Plaintiff suffered from any type of disability during her employment); Klotz Aff. at P 16 (same); Greene Dep. at 96 (same). Plaintiff has failed to set forth any specific facts showing that this is an issue for trial, and therefore I would grant Defendants' motion even if I had found that Plaintiff is disabled within the meaning of the ADA. 2. Legitimate, Non-Discriminatory Reason for Termination Defendants argue, and the record demonstrates, that Greene and Klotz's decision to terminate Plaintiff's employment was based on the fact that she reported to work unfit for duty and out of concern for the safety of Good Shepherd's patients. See Greene Aff. at P 23 (Plaintiff's employment terminated "for reporting to work unfit for duty and endangering the safety of the patients for whom she was responsible"); Klotz Aff. at P 12 (same); Investigation Notes of Elvia Kaniuka Incident at 10 (stating Plaintiff's inability to perform her job could adversely impact the safety of patients). Even if Plaintiff had established her prima facie case of discrimination, I would still grant Defendants' Motion for Summary Judgment because they have articulated [*23] a legitimate, non-discriminatory reason for terminating Plaintiff's employment. Safety of patients is, and must be, a primary concern for Good Shepherd's administrators. Good Shepherd has ample justification for insisting that CNAs be able to care for patients and to attend to any emergencies that may arise during their shifts. Accordingly, the burden shifts back to Plaintiff to show that Good Shepherd's proffered reason for her termination is pretextual. Plaintiff has not raised any evidence suggesting that a reasonable jury could either (1) disbelieve Defendants' articulated legitimate, nondiscriminatory reason for terminating her employment; or (2) believe that "an invidious discriminatory reason was more likely than not a motivating or determinative cause of Plaintiff's termination." Fuentes, 32 F.3d at 763. To the contrary, Plaintiff's Opposition to the Motion for Summary Judgment does not cite to the record at all on this issue. Instead, Plaintiff cites Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir. 1999), for the proposition that Defendants may not raise a legitimate, non- discriminatory reason for termination as a defense in a "regarded [*24] as" claim under the ADA. Plaintiff's reliance on Taylor for this purported rule of law is misplaced. The portion of Taylor cited by Plaintiff addresses (1) the existence of a "regarded as" claim when an employer deems an employee to be unable to perform a wide range of jobs, versus being unable to perform a particular job; and (2) the effects of an employer's mistaken evaluation of an employee as disabled under the ADA. Taylor, 177 F.3d at 188-92. The case does not address whether an employer's legitimate and non-discriminatory reason may be a defense in a "regarded as" claim. Rather, Taylor holds that a "regarded as" claim exists when an employer has erroneously regarded the plaintiff employee as being 2006 U.S. Dist. LEXIS 57403, *20 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 50 of 139 Page 7 of 10 unable to perform "a wide class of jobs, as opposed to one particular and limited job." Id. at 192. Here, Plaintiff has not cited to any evidence demonstrating that Good Shepherd deemed Plaintiff unable to perform a wide range of jobs at the home. The record at most suggests that Good Shepherd regarded Plaintiff as being unable to perform her particular job as a CNA due to safety concerns. See, e.g., Investigation Notes of Elvia [*25] Kaniuka Incident at 10 ("[Plaintiff] is in a highly sensitive caretaker role where her own ability to perform her job could impact the safety of patients"); Good Shepherd Job Description - Nursing Assistant at 1 (stating that CNAs have numerous responsibilities impacting patients' care and safety). Plaintiff has therefore failed to cast any doubt on Good Shepherd's proffered reason for terminating her employment, and Defendants have offered a legitimate, non- discriminatory reason for terminating Plaintiff's employment at Good Shepherd. 8 [*26] B. The ADA and PHRA Retaliation Claims 9 The ADA's anti-retaliation provision states in relevant part: "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). Courts in the Third Circuit analyze ADA retaliation claims using the McDonnell Douglas burden- shifting framework described supra in Section III.A. Shaner, 204 F.3d at 500. Moreover, a plaintiff's failure to establish a prima facie case of discrimination under the 8 Plaintiff makes much hay over the applicability of 42 U.S.C. § 12114(b)(3) and how a "violation" of that subsection creates a genuine issue of material fact for trial. Section 12114(b)(3), however, provides that an individual who is "erroneously regarded as engaging in [illegal drug] use, but is not engaging in such use" is not excluded from the definition of a "qualified individual with a disability." Accordingly, this subsection of the ADA applies only to whether a plaintiff is a "qualified individual with a disability;" i.e. whether the plaintiff has met the second element of her prima facie case. A "violation" of section 12114(b)(3), therefore, would satisfy only the second element of Plaintiff's prima facie case, and it is unnecessary to further address this argument in light of the analyses above. 9 The following analysis of Plaintiff's ADA retaliation claim applies with equal force to Plaintiff's PHRA retaliation claim. See Rinehimer, 292 F.3d at 382 (PHRA generally applied in conformance with the ADA). ADA does not preclude her from recovering [*27] on an ADA retaliation claim. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir. 2003) (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 498 (3d Cir. 1997)). 1. Prima Facie Case of ADA Retaliation To establish a prima facie case of retaliation under the ADA, a plaintiff must demonstrate the following elements: (1) that she engaged in an ADA-protected activity; (2) an adverse employment action by the defendant employer, either after or contemporaneous with the protected activity; and (3) a causal connection between the protected activity and the adverse employment action. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001). Only the first and third elements of Plaintiff's prima facie case are disputed in this case. Plaintiff asserts that the note from Dr. Sholevar constitutes a request for a working accommodations and is therefore a "protected activity" under the ADA. The note states in its entirety: "Elvia has been under my care since 1/9/04. She will be released to return to work as of 1/26/04." Plaintiff argues that this note is a request for medical leave and, under [*28] Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004), is therefore a request for working accommodations. Protected activities under the ADA generally include: (1) opposition to a practice made unlawful under the ADA; and (2) participation in an ADA investigation, proceeding, or hearing by making a charge, testifying, or otherwise assisting in the investigation. See 42 U.S.C. § 12203(a); Merit v. Southeastern Pa. Transp. Auth., 315 F. Supp. 2d 689, 704 (E.D. Pa. 2004). Informal charges or complaints of discrimination, as well as informal requests for accommodation, are sufficient to constitute protected activities for establishing a prima facie case of retaliation. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-2 (3d Cir. 1995). However, even informal charges, complaints, or requests for working accommodations must at least mention the type of discrimination claimed. See Barber, 68 F.3d at 701-2 (letter written to employer "too vague" to constitute "protected conduct" under the Age Discrimination in Employment Act of 1967 because it did not specifically complain [*29] about age discrimination). In Conoshenti, the Third Circuit noted that several federal courts have permitted a leave of absence to 2006 U.S. Dist. LEXIS 57403, *24 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 51 of 139 Page 8 of 10 constitute a reasonable accommodation under the ADA. Conoshenti, 364 F.3d at 150-51 (citing Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)). These courts reasoned that "applying such a reasonable accommodation at the present time would enable the employee to perform his essential job functions in the near future." Id. The Conoshenti decision did not, however, affect the holding of the Barber case, in which the Third Circuit found that a "vague" letter that did not specifically complain about age discrimination was not a protected activity under the Age Discrimination in Employment Act of 1967. Barber, 68 F.3d at 701-2. Similarly, the note from Dr. Sholevar in this case does not make any mention of discrimination or even suggest that Plaintiff suffered from a disability. It merely states that Plaintiff was under the care of a doctor and that she would be released to return to work approximately 10 days after the date of the letter. Moreover, the plaintiff bears the burden of identifying [*30] a reasonable accommodation in an ADA case. See Skerski v. Time Warner Cable Co., 257 F.3d 273, 284 (3d Cir. 2001). Plaintiff has not presented evidence here suggesting that a leave of absence would have enabled her to perform the essential duties of her job within a reasonable amount of time. See Conoshenti, 364 F.3d at 151 (citation omitted). 10 Under Barber, Dr. Sholevar's note does not constitute protected activity under the ADA, and a reasonable jury could not find that this note demonstrated Plaintiff's opposition to a practice made unlawful under the ADA or her participation in an ADA investigation. Therefore, Plaintiff has not met the first element of her prima facie case of retaliation, and summary judgment will be granted with respect to the ADA and PHRA retaliation claims. [*31] C. The PHRA Aiding and Abetting Claim Against Defendant Greene Section 955(a) is the employment discrimination provision of the PHRA, and it allows a plaintiff to recover only from employers and not from individual employees. Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996). Section 955(e) of the PHRA, by contrast, may be applied to individual defendants who aid and abet a section 955(a) violation by their employer. See 43 PA. CONS. STAT. § 955(e). Direct incidents of employment 10 In addition, Plaintiff specifically testified at her deposition that she did not request any accommodations from Good Shepherd. Elvia Kaniuka Dep. at 124 ("Q. Did you ask anyone from Good Shepherd for any type of accommodation? A. No."). discrimination by non-supervisory employees are not covered by PHRA section 955(e). See Dici, 91 F.3d at 552-53 (citation omitted). Supervisory employees, however, may be held liable under section 955(e) because they share the discriminatory purpose and intent of the employer necessary to sustain a claim of aiding and abetting. Davis v. Levy, Angstreich, Finney, Baldante, Rubenstein & Coren P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa. 1998) (citing Dici, 91 F.3d at 552- 53). I have already granted summary judgment on Plaintiff's claims of unlawful discrimination and retaliation in violation of the PHRA [*32] against Good Shepherd. Individual defendants cannot violate PHRA section 955(e) when there is no corresponding section 955(a) violation by an employer to aid and abet. It is therefore unnecessary to determine whether defendant Greene is a supervisory employee for purposes of the PHRA, or whether he is liable for aiding and abetting any allegedly discriminatory practices of his employer. Since there is no genuine issue of material fact, and because Defendants are entitled to judgment as a matter of law, I will grant summary judgment on the PHRA aiding and abetting claim. D. The FMLA Claims Congress enacted the FMLA to accomplish two purposes: "to balance the demands of the workplace with the needs of families," and "to entitle employees to take reasonable leave for medical reasons." 29 U.S.C. §§ 2601(b)(1)-(2). To accomplish these goals, courts have recognized that the FMLA creates two separate causes of action: (1) so-called "interference" or "entitlement" claims; and (2) "retaliation" or "discrimination" claims. Peter v. Lincoln Technical Inst., Inc., 255 F. Supp. 2d 417, 438 (E.D. Pa. 2002). Interference claims arise from violations [*33] of 29 U.S.C. § 2615(a)(1), which provides that it is unlawful for an employer "to interfere with, restrain, or deny the exercise of or the attempt to exercise" any right secured by the FMLA. 29 U.S.C. § 2615(a)(1). Discrimination claims, by contrast, arise from violations of 29 U.S.C. § 2615(a)(2), which prohibits an employer from "discharg[ing] or in any other manner discriminat[ing] against any individual for opposing any practice made unlawful by [section 2615]." 29 U.S.C. § 2615(a)(2). 1. The FMLA Interference Claim As an initial matter, Defendants argue that the Amended Complaint does not allege an interference claim under 2006 U.S. Dist. LEXIS 57403, *29 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 52 of 139 Page 9 of 10 the FMLA, and instead alleges only a retaliation claim. Not surprisingly, Plaintiff's opposition states that she has alleged that Good Shepherd violated both types of claims under the FMLA. After reviewing the Amended Complaint, I have found only three paragraphs that relate to Plaintiff's FMLA claims. Paragraph 37 provides that: "Greene stated that Plaintiff was being terminated for being out on leave." Am. Compl. P 37. Paragraph 38 provides that: "at [*34] all times material hereto, an employer has been prohibited by the [FMLA] from terminating an employee for taking medical leave." Am. Compl. P 38. Finally, paragraph 66 alleges that: "Defendant's [sic] actions as set forth above constitute a violation of the [FMLA]." Am. Compl. P 66. These allegations, even when read in the light most favorable to Plaintiff, speak in terms of retaliation rather than interference or both; they do not allege that Defendants interfered with Plaintiff's FMLA-protected leave. In Eddy v. V.I. Water and Power Auth., 256 F.3d 204, 209 (3d Cir. 2001), the Third Circuit held that a defendant did not waive an affirmative defense by raising it for the first time in its Motion for Summary Judgment. A cursory review of Eddy would seem to suggest that this rule established by the Third Circuit applies equally to new theories of liability that a plaintiff raises for the first time in opposition to a motion for summary judgment. A closer reading, however, indicates that this is not the case. The rule established in Eddy is inapplicable here because in this case it is Plaintiff, the party bearing the burden of proof at trial, who has failed [*35] to plead a claim. Moreover, allowing a new theory of liability at this stage of the litigation would prejudice the defense. Courts in this and other districts have held that they need not address claims that are raised for the first time in opposition to a motion for summary judgment. United States v. Union Corp., 277 F. Supp. 2d 478, 490 (E.D. Pa. 2003). See also Logiodice v. Trs. of Me. Cent. Inst., 170 F. Supp. 2d 16, 30-31 n.12 (D. Me. 2001), aff'd, 296 F.3d 22 (1st Cir. 2002) ("Plaintiffs are not entitled to raise a new theory of liability for the first time in opposition to a motion for summary judgment") (citing Mauro v. S. New Eng. Telcomms., Inc., 208 F.3d 384, 386 n.1 (2d Cir. 2000)). Accordingly, I will disregard Plaintiff's purported FMLA interference claim because it is not contained in the Amended Complaint. 2. The FMLA Discrimination/Retaliation Claim As with other claims of discrimination, discrimination claims under the FMLA are analyzed under the now familiar McDonnell Douglas framework described supra in Section III.A. To establish a prima facie claim of retaliation for requesting [*36] FMLA leave, a plaintiff must show that: (1) she took leave protected by the FMLA; (2) she suffered an adverse employment decision; and (3) the adverse decision was causally related to the protected leave. Conoshenti, 364 F.3d at 146. 11 In situations where the need for leave due to a medical condition is foreseeable, the FMLA generally requires that an employee provide her employer with advance notice. See 29 C.F.R. § 825.302. Where leave is unforeseeable, however, notice should be given "as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303. Moreover, an employer may require its employees to provide medical certification of a serious health condition issued by the employee's healthcare provider within 15 days of the employer's request. 29 C.F.R. § 825.311(a). [*37] In this case, it is undisputed that Plaintiff did not give advance notice for her hospitalization on January 9, 2004. However, a reasonable jury could find that: (1) Plaintiff's need for medical leave beginning on January 9, 2004 was unforeseeable; and (2) she provided notice to Good Shepherd as soon as was practicable under the circumstances. Plaintiff testified that she took two tablets of Meclizine, an over-the-counter drug for vertigo and nausea, after she drove her husband home around 11:45 p.m. on January 8, 2004. Elvia Kaniuka Dep. at 75. She also testified that she took three tablets of ibuprofen after she had returned to Good Shepherd around 1:00 a.m. on January 9, 2004. Id. at 76. Nothing else in the record suggests a reason for Plaintiff's condition on January 8 and 9, 2004, and a genuine issue of fact exists as to whether Plaintiff could have foreseen that she would need medical leave beginning on January 9, 2004. A reasonable jury could also find that the note from Dr. Sholevar, and dated January 15, 2004, constituted notice of Plaintiff's need for medical leave under the circumstances of this case. An employee's notice for FMLA-qualifying leave "need not expressly [*38] assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. . . ." 29 C.F.R. § 825.302(c). Additionally, an employee's "spokesperson" 11 Defendants contest only the first element of Plaintiff's prima facie case, arguing that she did not take FMLA-protected leave. 2006 U.S. Dist. LEXIS 57403, *33 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 53 of 139 Page 10 of 10 may provide the employer with notice if the employee is unable to do so personally. 29 C.F.R. § 825.303(b). Dr. Sholevar's note, which provides that Plaintiff was under his care and would be released to work approximately one week later, creates a genuine issue of material fact as to whether Plaintiff gave notice "as soon as practicable under the facts and circumstances" of this case. Accordingly, I find Plaintiff has established that she took FMLA-protected leave. Defendants have not challenged the other two elements, and Plaintiff has therefore established her prima facie case of FMLA discrimination. As noted above, Defendants' proffered reason for terminating Plaintiff is that she reported to work unfit for duty and out of concern for the safety of Good Shepherd's patients. Thus, the burden shifts back to Plaintiff to show that Good Shepherd's proffered reason for her termination is pretextual. In the absence of direct evidence of discrimination, the Third [*39] Circuit has held that "the proper inquiry is whether evidence of inconsistences and implausibilities in the employer's proffered reasons for discharge reasonably could support an inference that the employer did not act for non-discriminatory reasons, not whether the evidence necessarily leads to [the] conclusion that the employer did act for discriminatory reasons." Josey v. John R. Hollingsworth, Corp., 996 F.2d 632, 638 (3d Cir. 1993) (quotations and citations omitted) (emphasis in original). The Third Circuit has also found that factors such as the defendant's credibility, the timing of the adverse employment action, and the defendant's treatment of the plaintiff may all raise an inference of a pretextual reason for the employer's action. Id. at 638- 39. Here, Greene and Klotz decided to terminate Plaintiff's employment approximately one week after receiving Dr. Sholevar's note. Additionally, the date of termination matches the date that the note provides Plaintiff would be medically released to return to work. A reasonable jury reviewing these facts could find that the timing of Plaintiff's termination raises the inference of a pretextual [*40] termination. See id. at 639 (timing of a plaintiff's termination may raise inference of pretextual reason for termination). In other words, a reasonable jury could determine that Good Shepherd's decision to terminate Plaintiff's employment was in retaliation for taking medical leave, precluding summary judgment on this claim. While I note that it is unlikely that a jury would find in Plaintiff's favor on this claim, such an evaluation is not for me to determine on summary judgment. Accordingly, I must deny the Motion for Summary Judgment on the FMLA retaliation claim. IV. CONCLUSION For the reasons described above, I will grant Defendants' Motion for Summary Judgment with respect to all of Plaintiff's claims, except for her FMLA retaliation claim. An appropriate Order follows. ORDER AND NOW, this 15th day of August, 2006, upon consideration of Defendants' Motion for Summary Judgment (Docket No. 17) and Plaintiff's response thereto, it is hereby ORDERED that the motion is GRANTED in part and DENIED in part. The motion is GRANTEDwith respect to Plaintiff's claims of (1) discrimination in violation of the ADA (Count [*41] I); (2) retaliation in violation of the ADA (Count II); (3) discrimination in violation of the PHRA (Count III); (4) aiding and abetting in violation of the PHRA (Count IV); and (5) retaliation in violation of the PHRA (Count V). The motion is DENIEDwith respect to Plaintiff's claim of retaliation in violation of the FMLA (Count VI). BY THE COURT: /s/ Lawrence F. Stengel End of Document 2006 U.S. Dist. LEXIS 57403, *38 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 54 of 139 Positive As of: May 17, 2017 5:39 PM Z Barthold v. Briarleaf Nursing & Convalescent Ctr. Nursing Home United States District Court for the Eastern District of Pennsylvania June 27, 2014, Decided; June 27, 2014, Filed CIVIL ACTION NO. 13-2463 Reporter 2014 U.S. Dist. LEXIS 87602 *; 2014 WL 2921534 ANN BARTHOLD, Plaintiff, v. BRIARLEAF NURSING & CONVALESCENT CENTER NURSING HOME; BRIARLEAF NURSING & CONVALESCENT , INC.; and JOANNE NEWFIELD c/o BRIARLEAF NURSING & CONVALESCENT CENTER NURSING HOME, Defendants. Counsel: [*1] For ANN BARTHOLD, Plaintiff: ROBERT P. MAIZEL, LEAD ATTORNEY, MAIZEL LEGAL ASSOCIATES INC, PHILADELPHIA, PA. For BRIARLEAF NURSING AND CONVALESCENT, INC., JOANNE NEWFIELD, Defendants: JEFFREY I. PASEK, LEAD ATTORNEY, JESSICA A. HURST, COZEN O'CONNOR, PHILADELPHIA, PA. Judges: C. Darnell Jones, II, J. Opinion by: C. Darnell Jones, II Opinion MEMORANDUM Jones, II I. INTRODUCTION Pending before the court is a Motion to Dismiss filed by Defendants Briarleaf Nursing and Convalescent Center Nursing Home, Briarleaf Nursing and Convalescent, Inc. and Joan Newfield,1 seeking dismissal of Plaintiff's employment discrimination Complaint. For the reasons set forth below, Defendants' Motion shall be granted. 1 In their Motion to Dismiss, Defendants inform that their names as set forth in the caption of Plaintiff's Complaint are incorrect. In particular, Plaintiff mistakenly refers to Defendant Joan Newfield as "Joanne Newfield." a. Background This case arises out of events that occurred during Plaintiff's employment as a certified nursing aide at a nursing home operated by Briarleaf Nursing & Convalescent, Inc. ("Briarleaf"). Plaintiff, who is Haitian and immigrated to the United States in 1981, began her employment with Briarleaf on [*2] April 14, 2000 and was terminated on January 4, 2010. (Compl. ¶¶ 17, 30). At the time of her termination, Plaintiff was 62 years old. (Compl. ¶ 11). During Plaintiff's employment, she was subject to the authority of Defendant Joan Newfield ("Newfield"), who was employed by Briarleaf as the Director of Nursing. (Compl. ¶ 14). The crux of Plaintiff's Complaint is that she was "subjected to discipline in the form of written warnings, suspensions, and termination for conduct and/or infractions that did not occur or conduct and/or infractions for which other similarly- situated Caucasian and younger employees were not disciplined." (Compl. ¶ 23). Plaintiff alleges that this conduct amounted to "harassment and discrimination based upon her gender,2 age, national origin, and race, which included a hostile work environment and retaliation." (Compl. ¶ 22). Based on same, Plaintiff claims that Defendants are liable pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), 3(a) ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a), (d) ("ADEA"), and the Pennsylvania Human Relations Act, 43 P.S. 955(a), (c)- (e) ("PHRA"). II. STANDARD OF REVIEW 2 In the boilerplate language [*3] contained within Paragraph 22 of her Complaint, Plaintiff cites gender as a basis for Defendants' alleged discrimination against her. Inasmuch as gender is not mentioned elsewhere and the remainder of the Complaint contains absolutely no facts to support a gender discrimination claim, this Court will not be addressing same. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 55 of 139 Page 2 of 7 In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 [*4] (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678; accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) ("All civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (internal quotation omitted).3 3 This Court finds interesting a comment contained within Plaintiff's Opposition to the instant Motion. When discussing the standard of review applicable to the within matter, Plaintiff states that she "makes this request for denial of the Motion to Dismiss in light of the fact that Defendants have had sufficient time to investigate this claim; have had full notice of all the claims asserted in that Plaintiff properly filed a Charge of Discrimination with the EEOC and PHRC; and Defendants had the opportunity to engage in the investigative process of Plaintiff's allegations prior to the Complaint being filed. Here, Defendants seek a harsh remedy of dismissal on technicality only after lying in wait." (Pl.'s Mem. Opp'n Mot. Dismiss 5-6). If such was the case, there would never be any motions to dismiss regarding [*5] employment discrimination claims. The fact that a prior EEOC or PHRC investigation has been conducted does not relieve Plaintiff of his or her pleading obligations in federal court. Moreover, although Defendants do not raise this issue in their Motion to Dismiss, Plaintiff's Complaint leaves question as to whether or not she has in fact exhausted her administrative remedies. In Paragraph 3 of Plaintiff's Complaint, she states "Plaintiff has complied with all jurisdictional prerequisites including those set forth in 42 U.S.C. § 2000e-5(f) and was issued a Notice of Right to Sue by the Equal Employment Opportunity Commission on or about February 5, 2013." (Compl. ¶ 3). Plaintiff does not attach this Notice as an exhibit to her Complaint. "While there is no requirement that a right to sue letter be attached to a complaint, a discrimination suit is III. DISCUSSION A. Title VII and the ADEA i. Claims Against Joan Newfield in Her Individual Capacity Both Title VII and the ADEA create a cause of action against an employer for workplace discrimination, however neither statute extends that cause of action to the employer's employees in their individual capacity. See Hill v. Kutztown, 455 F.3d 225, 246 n.29 (3d Cir. 2006) (" . . . the ADEA does not provide for individual liability."); Youssef v. Dep't of Health & Senior Serv., 524 Fed. Appx. 788, 789 (3d Cir. 2013) (affirming district court's dismissal of Title VII and ADEA claims against human resources director named in her individual capacity). Defendant Newfield, as an employee of Briarleaf, has been accused of employment discrimination while discharging her responsibilities as a Briarleaf employee. Newfield, as a Briarleaf [*7] employee acting in her official capacity, may not be held liable in her individual capacity under the ADEA or Title VII. Accordingly, said claims against Newfield, in her individual capacity, shall be dismissed with prejudice. ii. Claims Against Briarleaf Plaintiff has alleged discrimination, hostile work environment and retaliation claims against Briarleaf but fails to support her allegations with "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,'" as is required by Iqbal and Twombly. For purposes of evaluating a motion to dismiss, a court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions couched as fact. Santiago v. Warminster, 629 F.3d 121, 129-30 limited to claims asserted in the EEOC charge, and therefore, Plaintiff must allege the basis for the charge. Plaintiff has failed to do so here. Consequently, the Court will dismiss the Complaint for failure to sufficiently plead exhaustion, but will grant Plaintiff leave to amend to identify the claims asserted in the EEOC charge, which may [*6] be done by attaching the right to sue letter." Butler v. BTC Foods, Inc., Civ. No. 12-492, 2012 U.S. Dist. LEXIS 151582, at *15-16 (E.D. Pa. Oct. 19, 2012). In the instant matter, this Court has no way of knowing exactly what issues were raised with the EEOC and can therefore not be certain that Plaintiff has exhausted her administrative remedies with regard to same. 2014 U.S. Dist. LEXIS 87602, *3 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 56 of 139 Page 3 of 7 (3d Cir. 2010); see also Iqbal, 129 S.Ct. at 1947. Although detailed allegations are not required, a minimal amount of factual content clearly is. See Twombly, 550 U.S. at 555 ("[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."). Plaintiff cannot meet her pleading burden "simply [*8] by asserting an event and then asserting that it was motivated by [discriminatory animus]." See Davis v. Newark, 285 F. App'x 899, 903 (3d Cir. 2008). Rather, she must plead factual details that give rise to that conclusion. Id. The legal conclusions that are pervasive throughout Plaintiff's Complaint shall be disregarded for purposes of assessing Defendants' Motion to Dismiss. See Twombly, 550 U.S. at 555. Similarly, all assertions that amount to no more than recitations of certain elements of Plaintiff's claims unaccompanied by any factual detail will not be considered. Id. ("[L]abels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."). (a) Discrimination Employers are prohibited from discriminating against an employee based on his or her race or national origin pursuant to Title VII. 42 U.S.C. § 2000e-2(a). Similarly, the ADEA prohibits an employer from discriminating against an employee based on their age. 29 U.S.C. 623(a). Title VII discrimination claims are analyzed under the familiar McDonnell Douglas 1 burden-shifting framework. Jones v. School Dist. of Philadelphia, 198 F.3d 403 (3d Cir. 1999). Under this standard, a plaintiff must [*9] first establish a prima facie case of discrimination by showing: (1) the employee is a member of a protected class; (2) the employee is qualified for the position; (3) the employee suffered an adverse employment action; and (4) the action was taken under circumstances that give rise to an inference of unlawful discrimination. Jones, 198 F.3d at 410-11. If a plaintiff is successful, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for the employment action. McDonnell Douglas, 411 U.S. at 802. Once a legitimate reason for the employment action is presented, the burden shifts back to the plaintiff to show that the employer's proffered reason was in fact pretext for 1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). discrimination. Id. at 804. This framework applies equally to age-based discrimination under the ADEA and race or national origin discrimination under Title VII. Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995). Plaintiff herein was born on November 2, 1947. (Compl. ¶ 12). Being over the age of forty, she is therefore a member of a protected class under the ADEA. See Simpson v. Kay Jewelers, 142 F.3d 639, 650 (3d Cir. 1998). [*10] Plaintiff has also pleaded that she is "an adult female of Haitian descent," who immigrated to the United States of America from Haiti in 1981, therefore she is a member of a protected class under Title VII for purposes of both race and national origin discrimination. (Compl. ¶¶ 11, 16); see also 42 U.S.C. § 2000e-2(a). Whether a plaintiff was qualified for the position from which he or she was terminated is judged by an objective standard. Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995). The "question of whether an employee possesses a subjective quality . . . is better left to consideration of whether the employer's nondiscriminatory reason for discharge is pretext." Id. An extended period of employment in a particular position gives rise to an inference that a plaintiff was objectively qualified for that position. See Chapman v. American Institute of Certified Public Accountants, 233 Fed. Appx. 141, 143 (3d Cir. 2007) (fact that plaintiff worked for nearly two years in the position from which he was terminated gave rise to inference that he was qualified for his position). Plaintiff was hired and subsequently employed by Defendants for nearly ten years before being terminated. [*11] (Compl. ¶¶ 17, 30). Applying the appropriate inference to the case at bar, this Court finds no indication at this stage of the proceedings that Plaintiff was not objectively qualified for the position. Next, Plaintiff must plead facts sufficient to infer that she suffered an adverse employment action. The Supreme Court has defined a tangible, adverse employment action as a "significant change in employment status, such as hiring, firing, failing to promote, reassignment, or a decision causing a significant change in benefits." Burlington N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53, 64, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006) (emphasis added); see also Griesbaum v. Aventis Pharms., 259 Fed. Appx. 459, 470 (3d Cir. 2007) (commenting "it is hard to understand how any employment action could be more adverse than a termination of employment."). Accordingly, Plaintiff's termination alone is sufficient to demonstrate that she 2014 U.S. Dist. LEXIS 87602, *6 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 57 of 139 Page 4 of 7 was subjected to an adverse employment action for purposes of evaluating the instant Motion. With regard to allegations that give rise to any inference of discrimination, Plaintiff's Complaint falls woefully short. A plaintiff can meet this burden by showing that "similarly situated persons who are not members [*12] of her protected class were treated more favorably than the plaintiff." See Wimbush v. UPMC Health System, 97 F. App'x 397, 398 (3d Cir. 2004). In Paragraph Twenty-Three of her Complaint, Plaintiff alleges she "was subjected to discipline in the form of . . . suspensions and termination for conduct and/or infractions . . . for which other similarly situated Caucasian and younger employees were not disciplined." (Compl. ¶ 23). Such boilerplate language simply does not suffice. Accordingly, Plaintiff's Complaint fails to adequately plead discrimination and her claim for same must be dismissed. (b) Hostile Work Environment In order to sustain a hostile work environment claim pursuant to Title VII, Plaintiff's Complaint must contain facts to plausibly show: "(1) that [she] suffered intentional discrimination because of race; (2) that the discrimination was severe or pervasive; (3) that the discrimination detrimentally affected [her]; (4) that the discrimination would have detrimentally affected a reasonable person of the same race in [her] position; and (5) that there is a basis for vicarious liability." Brooks v. CBS Radio, Inc., 342 F. App'x 771, 775 (3d Cir. 2009). "In employing this [*13] standard, a court must evaluate the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee's work performance." Exantus v. Harbor Bar & Brasserie Rest., 386 F. App'x 352, 354 (3d Cir. 2010). The same criteria are utilized when assessing a hostile work environment claim based on age. Slater v. Susquehanna County, 465 F. App'x 132, 138 (3d Cir. 2012). Although Plaintiff's hostile work environment claim cannot survive without adequately pleading the discrimination element, this Court will nevertheless assess the remaining factors. With specific regard to the second element of "severe or pervasive," a plaintiff must show that the work environment was "permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). The Supreme Court has made it clear that Title VII is "not a general civility code." Faragher v. Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). Further, Title VII "does not mandate a happy workplace." Jensen v. Potter, 435 F.3d 444, 451 (3d Cir. 2006), [*14] overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). A hostile work environment claim requires discrimination based on a protected characteristic that is "severe enough to affect the psychological stability of a minority employee." Andrews v. Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). The Supreme Court has formulated a framework for analyzing whether conduct is sufficiently severe and pervasive: "whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001). In the matter before this Court, Plaintiff's Complaint is devoid of any facts that could plausibly show the alleged discrimination was severe or pervasive. Paragraphs Twenty-Three and Thirty-Two of Plaintiff's Complaint relate to the conditions of her work environment. However, neither paragraph contains factual allegations to even remotely show that Plaintiff was [*15] subjected to a work environment that was "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment." Nat'l R.R., 536 U.S. at 116. Based solely upon an extremely generous reading of the allegations set forth in Plaintiff's Complaint, the most this Court can conclude is that the actions complained of were isolated incidents, rather than a pervasive course of conduct reaching the level of a hostile work environment. See Faragher v. Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (". . . isolated incidents (unless extremely serious) will not amount to a hostile work environment."). Plaintiff has not included any allegations to sufficiently indicate she was subjected to physically threatening or humiliating conduct, nor has she made any sufficient allegations to plausibly demonstrate that her work performance 2014 U.S. Dist. LEXIS 87602, *11 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 58 of 139 Page 5 of 7 suffered as a result of being disciplined by the Defendants. Clark Cnty. Sch. Dist., 532 U.S. at 270-71 (discussing existence of physical threats, humiliation, and detrimental effect on work performance as indicators of a hostile work environment). Because a hostile [*16] work environment claim requires discrimination based on a protected characteristic that is "severe enough to affect the psychological stability of a minority employee," a simple statement that Plaintiff was disciplined an undisclosed number of times for undisclosed infractions does not allege conduct that rises to the level of creating a hostile work environment. See Davis v. Newark, 285 F. App'x 899, 903 (3d Cir. 2008) (dismissing hostile work environment claim because the frequency and severity of the conduct was minimal and the plaintiff failed to allege that any of the events involved physical threats or humiliations, or unreasonably interfered with her work performance). Accordingly, Plaintiff's hostile work environment claim shall be dismissed. (c) Retaliation To prevail on a cause of action for retaliation under Title VII or the analogous provision of the ADEA, Plaintiff must demonstrate that (1) she engaged in an activity protected by Title VII or the ADEA; (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. Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006); [*17] Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995). With regard to the first element, an employee has engaged in conduct protected by the ADEA when he or she "has opposed any practice made unlawful by . . . section 623" of the ADEA. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995) (emphasis added); 29 U.S.C. § 623(d) (delineating prohibited conduct by employer with regard to age of employee). Similarly, "Title VII's anti-retaliation provisions protect individuals who . . . oppose employment practices made illegal by Title VII." Curay-Cramer v. Ursuline Acad., 450 F.3d 130, 134 (3d Cir. 2006) (emphasis added). The Third Circuit has required plaintiffs to demonstrate that they made particularized statements in opposition to discrete past events that they believed were prohibited by either Title VII or the ADEA, in order to establish that they engaged in opposition activity. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-702 (3d Cir. Pa. 1995) (finding a plaintiff's "letter to Human Resources complain[ing] about unfair treatment in general and express[ing] his dissatisfaction with the fact that someone else was awarded the position, but . . . not specifically [*18] complaining] about age discrimination" did "not constitute the requisite 'protected conduct' for a prima facie case of retaliation."). See also Curay-Cramer, 450 F.3d at 135 (holding that basic advocacy against a practice does not constitute protected activity for retaliation claim). Opposition to an illegal employment practice "must identify . . . the practice-if not specifically, at least by context." Curay-Cramer, 450 F.3d at 135. Plaintiff herein has alleged that she complained to Defendants that she was subjected to unfair treatment, but did not explicitly or implicitly complain that a protected characteristic was the basis for that unfair treatment. Plaintiffs only mention of a complaint she made in response to Defendants' alleged conduct is found in Paragraph Thirty-Two of her Complaint which states: Notwithstanding, Plaintiffs complaints and clear indication to Defendant that the aforesaid comments and conduct were unwelcome, unwanted, and upsetting; the harassing conduct continued throughout the course of her employment with Defendants. (Compl. ¶ 32). Nowhere in her Complaint does Plaintiff claim or imply that she complained to Defendants that their behavior was discriminatory. [*19] The Third Circuit has been clear that an employee has not engaged in protected opposition activity when he or she complains about unfair treatment, but stops short of referencing a protected characteristic as the basis for the unfair treatment. See, e.g., Curay-Cramer, 450 F.3d at 134-35; Barber, 68 F.3d at 701-02. Further, any retaliation a plaintiff suffers as a result of such a deficient complaint does not entitle a plaintiff to seek redress under Title VII or the ADEA for retaliation. Id. Therefore, Plaintiff has failed to plead that she engaged in conduct protected by the ADEA or Title VII. With regard to the second element necessary to prevail on a cause of action for retaliation under Title VII or the ADEA, Plaintiffs termination on January 4, 2010 by Defendants satisfies the adverse employment action requirement. See Abramson v. William Paterson College, 260 F.3d 265, 287 (3d. Cir. 2001) (holding that termination clearly constitutes an adverse employment action for purposes of a retaliation claim). 2014 U.S. Dist. LEXIS 87602, *15 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 59 of 139 Page 6 of 7 Lastly, Plaintiff's Complaint must adequately allege a causal connection between her participation in the protected activity and the adverse employment action. Moore, 461 F.3d at 340-41. [*20] The Third Circuit has "recognized two primary methods for an employee to establish a causal connection. First, "[w]here the temporal proximity between the protected activity and the adverse action is unusually suggestive, it is sufficient standing alone to create an inference of causality." LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007). Second, if the temporal proximity is not evidence, the court must determine "whether 'the proffered evidence, looked at as a whole, may suffice to raise the inference'" of a causal connection between the protected activity and the adverse employment action. Id. (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)). "While the passage of mere hours or days has been deemed unusually suggestive, courts have held that the passage of weeks, months, and years removes any suggestion of retaliatory motive." Shenk v. Pennsylvania, Civ. No. 11-1238, 2013 U.S. Dist. LEXIS 67495, at *21-22 (M.D. Pa. May 13, 2013) (comparing Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir. 2004) (two month gap insufficient) and Thomas v. Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (three week gap insufficient) [*21] with Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two day gap unusually suggestive) and Reinhart v. Mineral Techs., Inc., Civ. No. 05-4203, 2006 U.S. Dist. LEXIS 89279, at *35 (E.D. Pa. Nov. 27, 2006) (twenty-four hour turnaround unusually suggestive)). Merely engaging in a protected activity prior to suffering an adverse employment action does not give rise to a harm cognizable as retaliation under Title VII or the ADEA. See, e.g., Williams, 380 F.3d at 760. As discussed above, Plaintiff has not sufficiently alleged that she engaged in any protected activity. Nor does she allege any timeframe. In the absence of an unusually suggestive temporal relationship, courts look for other evidence of retaliatory animus. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000). "Among the kinds of evidence that a plaintiff can proffer [to show a causal connection] are intervening antagonism or retaliatory animus, inconsistencies in the employer's articulated reasons for terminating the employee, or any other evidence in the record sufficient to support the inference of retaliatory animus." LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232-33 (3d Cir. 2007). In [*22] the instant case, Plaintiff alleges that Defendants' harassing behavior continued throughout the course of her employment. (Compl. ¶ 32). However, as the Complaint makes clear, Defendants' post- complaint behavior was the same behavior upon which she based the actual complaint. (Id.) Plaintiff has not pleaded any factual allegations to show that Defendants behaved differently in any way toward her after she complained about how she was being treated. Rather, she seems to have taken the position that Defendants' behavior was the same throughout the course of her employment. (Id.) To show retaliatory animus, a plaintiff must allege that her employer exhibited new, antagonistic behavior in response to her complaint; not that their behavior remained consistent. See Randler v. Kountry Kraft Kitchens, Civ. No. 11-474, 2012 U.S. Dist. LEXIS 177926, at *37 (M.D. Pa. Dec. 7, 2012) [*23] (holding jokes and remarks that were not markedly different from the incidents the plaintiff experienced prior to her alleged complaint did not suffice to show a causal connection between her complaint and termination). Therefore, Plaintiff has not shown that Defendants' conduct was motivated by a retaliatory animus. Plaintiff has alleged absolutely no causal connection between her insufficiently-pled protected activity and her termination. See Twombly, 550 U.S. at 562. Accordingly, her retaliation claim shall be dismissed. B. Pennsylvania Human Relations Act The Third Circuit has routinely applied Title VII, the ADEA, and the PHRA identically because the anti- retaliation and hostile work environment provisions of the ADEA and Title VII are nearly identical, as are the anti-retaliation and hostile work environment provisions of the PHRA. See, e.g., Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002) (interpreting the PHRA identically to federal anti-discrimination laws). Because Plaintiff failed to state a claim for discrimination, retaliation or hostile work environment against the Briarleaf Defendants under Title VII or the ADEA, her claims brought under the PHRA similarly [*24] fail. Although individual employees may not be held liable under Title VII or the ADEA, the PHRA provides for individual liability of a supervisor who aids and abets an employer's prohibited conduct. Dici v. Pennsylvania, 91 F.3d 542, 552-53 (3d Cir. 1996). However, "[n]on- employers . . . cannot violate PHRA § 955(e) when there is no corresponding § 955(a) violation by an 2014 U.S. Dist. LEXIS 87602, *19 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 60 of 139 Page 7 of 7 employer to aid and abet." Eldeeb v. Allied Barton Sec. Serv., No. 07-669, 2008 U.S. Dist. LEXIS 67515, at *31 (E.D. Pa. Aug. 28, 2008). See also Kaniuka v. Good Shepherd Home, Civ. No. 05-2917, 2006 U.S. Dist. LEXIS 57403, at *32 (E.D. Pa. Aug. 15, 2006) (same). In Paragraph Twenty-Eight of her Complaint, Plaintiff states that "[a]t all times material hereto, Newfield aided and abetted the aforementioned harassment, hostile work environment, and discrimination to which Barthold was subjected." (Compl. ¶ 28) (emphasis added). This allegation amounts to no more than a conclusory statement and a recitation of an element of supervisory liability pursuant to section 955(e) of the PHRA which makes it illegal "[f]or any . . . employee . . . to aid . . . [or] abet . . . the doing of any act declared by this section to be an [*25] unlawful discriminatory practice." 43 P.S. § 955(e). Aside from this conclusory paragraph, Plaintiff has not pleaded any details regarding the role Newfield played in the alleged discriminatory conduct. Since Plaintiff failed to sufficiently plead a discrimination, retaliation or hostile work environment claim with respect to Briarleaf, there was nothing for Defendant Newfield to aid or abet and there can be no violation of the PHRA. Accordingly, all claims brought pursuant to the PHRA against all Defendants shall be dismissed. C. Amendment In her Response to Defendants' Motion, Plaintiff asks that in the event her Complaint is found to be deficient, she be granted leave to amend. "Generally, leave to amend a complaint should be given when counts in the complaint are dismissed for failure to state a claim." Watts v. Blake-Coleman, Civ. No. 2011-61, 2012 U.S. Dist. LEXIS 43454, at *21-22 (D.V.I. Mar. 29, 2012). "However, that allowance is not absolute . . . A plaintiff's 'failure to provide a draft amended complaint' is 'an adequate basis on which the court could deny [a] plaintiff's request' to amend [because] [w]ithout a proposed amended complaint, a court 'cannot evaluate the merits [*26] of a plaintiffs' request' and has 'nothing upon which to exercise its discretion.'" Id. See also Aileron Solutions v. Health Mkt. Sci., Inc., Civ. No. 11- 4244, 2013 U.S. Dist. LEXIS 137834, at *5 (E.D. Pa. Sept. 25, 2013) (recognizing that a plaintiff's failure to attach a proposed amended complaint is fatal to a request for leave to amend) (citing Fletcher-Harlee Corp. v. Pote Concrete Contrs., Inc., 482 F.3d 247. 252 (3d Cir. 2007) (noting that "to request leave to amend a complaint, the plaintiff must submit a draft amended complaint to the court so that it can determine whether amendment would be futile" and finding failure to do so "fatal to a request for leave to amend.") and Lake v. Arnold, 232 F.3d 360, 374 (3d Cir. 2000) (concluding that a plaintiff's "failure to provide a draft amended complaint would be an adequate basis on which the court could deny the plaintiff's request [for leave to amend].")). Despite the foregoing, this Court is fully cognizant of the fact that leave to amend must be freely granted when justice so requires. Fed.R.Civ.P. 15(a)(2). As such, Plaintiff shall be permitted an opportunity to amend her Complaint. IV. CONCLUSION For the reasons set forth hereinabove, [*27] Defendants' Motion to Dismiss shall be granted and Plaintiff shall be afforded leave to amend her Complaint. An appropriate Order follows. BY THE COURT: /s/ C. Darnell Jones, II C. Darnell Jones, II J. ORDER AND NOW, this 27th day of June, 2014, upon consideration of Defendants' Motion to Dismiss (Doc. No. 5), Plaintiff's Opposition thereto (Doc. No. 7), and Defendants' Reply (Doc. No. 10), it is hereby ORDERED that said Motion is GRANTED. All claims against Defendant Joan Newfield, in her individual capacity, are hereby DISMISSED with prejudice. It is further ORDERED that Plaintiff shall have twenty (20) days from the date of the Order within which to file an Amended Complaint. Failure to do so shall result in dismissal of all remaining claims with prejudice. BY THE COURT: /s/ C. Darnell Jones, II C. Darnell Jones, II J. End of Document 2014 U.S. Dist. LEXIS 87602, *24 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 61 of 139 Positive As of: May 17, 2017 5:39 PM Z Elmarakaby v. Wyeth Pharms., Inc. United States District Court for the Eastern District of Pennsylvania March 30, 2015, Decided; March 30, 2015, Filed CIVIL ACTION NO. 09-1784 Reporter 2015 U.S. Dist. LEXIS 41300 *; 2015 WL 1456686 SAYED ELMARAKABY v. WYETH PHARMACEUTICALS, INC., ET AL. Counsel: [*1] For SAYED ELMARAKBY, Plaintiff: GEORGE S. KOUNOUPIS, LEAD ATTORNEY, DAVID DERATZIAN, HAHALIS & KOUNOUPIS, PC, BETHLEHEM, PA. For DR. ROBERT RUFFOLO, JR, JOANN SCATINA, APPAVU CHANDRASEKARAN, Defendants: WILLIAM J. DELANY, LEAD ATTORNEY, MORGAN LEWIS AND BOCKIUS LLP, PHILADELPHIA, PA; ERICA FLORES, MORGAN LEWIS BOCKIUS LLP, PHILADELPHIA, PA. Judges: R. BARCLAY SURRICK, JUDGE. Opinion by: R. BARCLAY SURRICK Opinion MEMORANDUM SURRICK, J. Presently before the Court is Defendants Wyeth Pharmaceuticals, Inc., Robert Ruffolo, Jr., Appavu Chandrasekaran, and Joann Scatina's Motion to Dismiss Plaintiff's Second Amended Complaint. (Defs.' Second Mot., ECF No. 25.)1 For the following reasons, Defendants' Motion will be granted. I. BACKGROUND A. Procedural History 1 In his Second Amended Complaint, Plaintiff added Vikram Patel as a Defendant and terminated Theresa Hultin as a party. Patel is unrepresented and has not joined his co- Defendants' Motion to Dismiss. Plaintiff filed an Initial Complaint on April 27, 2009. (Compl., ECF No. 1.) On August 10, 2009, Plaintiff filed an Amended Complaint. (Am. Compl., ECF No. 2.) Both Complaints were filed pro se. Defendants filed a Motion to Dismiss the Amended Complaint on September 8, 2009. (Defs.' [*2] Mot., ECF 5.) Plaintiff filed a response opposing Defendants' Motion to Dismiss on February 22, 2010. (Pl.'s Ans., ECF 10.) Defendants filed a reply on March 2, 2010. (Def.'s Reply, ECF 11.) Counsel was appointed to represent Plaintiff. On September 23, 2011, subsequent to the appointment of counsel, an Order was entered granting Plaintiff's Motion for Leave to File a Second Amended Complaint. Defendants' Motion to Dismiss Plaintiff's Amended Complaint was dismissed as moot. (ECF No. 21.) With the benefit of counsel, Plaintiff filed a Second Amended Complaint. (Second Am. Compl., ECF No. 22.) In the Second Amended Complaint, Plaintiff asserts that Defendant Wyeth: fostered and perpetuated a hostile and offensive work environment based on national origin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII") (Count I)2; retaliated based on national origin under Title VII (Count II); violated parallel provisions of the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951 et seq., ("PHRA") dealing with discrimination and retaliation based on national origin (Count III); and that Ruffolo, Chadnrasekaran, Scatina, and Patel ("Individual Defendants") aided and abetted violations of the PHRA. 2 In [*3] his Answer to Defendants' Second Motion to Dismiss, Plaintiff clarifies that "[he] has asserted a claim for discriminatory termination based on his ethnicity/national origin, not a hostile work environment." (Pl.'s Second Ans. ¶ 13, ECF No. 31.) Accordingly, we will treat this claim as one of wrongful discharge and unlawful discrimination rather than that of a hostile work environment. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 62 of 139 Page 2 of 8 Defendants' Motion to Dismiss, filed on October 10, 2011, seeks to dismiss the entirety of Plaintiff's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On November 7, 2011, Plaintiff filed an Answer to Defendants' Motion to Dismiss. (Pl.'s Second Answer.) On November 30, 2011, Defendants filed a reply. (Defs.' Second Reply, ECF No. 32.) B. Factual History3 Plaintiff is an American citizen, born in Egypt. He resides in Pennsylvania. (Second Am. Compl. ¶ 5.) After obtaining his Bachelor of Science degree, with Honors, in Alexandria, Egypt, Plaintiff obtained [*4] a Ph.D. from the University of Mississippi's School of Pharmacy. (Id. at ¶ 6.) On or about March 4, 2002, Plaintiff began employment as a Senior Research Scientist with Wyeth Pharmaceuticals. (Id. at ¶ 15.) In his position, Plaintiff performed drug development research related to the U.S. Food and Drug Administration approval process for Wyeth's products across a wide variety of therapeutic areas, including neuroscience, cardiovascular diseases, inflammation, women's health, and oncology. (Id. at ¶ 16.) 1. March 2005 Complaints In March of 2005, Plaintiff registered his first complaint with Dr. Robert Ruffolo, President of Wyeth, regarding a number of harassing activities, which he perceived to be based on national origin. (Id. at ¶ 18.) These complaints included: Wyeth security subjecting Plaintiff to excessive scrutiny and observation; Vikram Patel, Plaintiff's supervisor, "shadowing" Plaintiff; Patel making harassing comments based on Plaintiff's national origin in company elevators; an intimidating confrontation with a security officer; a delayed promotion from Senior Research Scientist to Principal Research Scientist; delays in upgrading Plaintiff's computer equipment and telephone [*5] system; unwarranted reprimands; and denial of computer access to necessary documentation. (Id.) Plaintiff reported these complaints to Ruffolo. He believes, however, that Ruffolo did not engage in any meaningful remediation. (Id. at ¶ 19.) 3 In considering a motion to dismiss under Rule 12(b)(6), "we accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff." DelRio- Mocci v. Connolly Props., Inc., 672 F.3d 241, 245 (3d Cir. 2012) (quoting Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011)). As such, we rely on the operative facts as presented in Plaintiff's Second Amended Complaint. 2. Ensuing Harassment After March of 2005, Plaintiff encountered escalating harassment. (Id. at ¶ 21.) JoAnn Scatina, Vice President at Wyeth and Plaintiff's Department Head, refused to interact with Plaintiff and ejected him from a meeting regarding the March 2005 complaints. (Id.) Plaintiff was removed from work-related meetings, committees, sub- groups, and working groups by Theresa Hultin, Plaintiff's Group Director; he was required to undergo more frequent evaluations of his work than other Wyeth employees; he was only permitted to meet with his Manager, Appavu Chandrasekaran, by appointment; and he encountered repeated requests for his authorization to work in the United States. (Id.) Interestingly, despite the alleged harassment and institutional discrimination that was supposedly based on his national origin, Plaintiff received periodic merit increases in compensation, his annual reviews indicated that he solidly met or exceeded expectations [*6] for his position, and Wyeth promoted him from Senior Research Scientist to Principal Research Scientist in January of 2007. (Id. at ¶ 15 and Compl. at ¶ 4.) 3. 2007 Complaints On April 11, 2007,4 Plaintiff once again complained 4 Defendants argue that the operative date for Plaintiff's second round of complaints should be in February of 2007, which would place those complaints outside the limitations period for Title VII discrimination claims, as discussed infra at Section III.A.1. Defendants base this timing on Plaintiff's EEOC Charge ("[Plaintiff] again took [his] concerns and made a complaint to management about the hostile work environment about the treatment that [he] had been subjected in February, 2007.") (Def.'s [*7] Second Mot., Ex. A. ¶ 4); and First Amended Complaint, which was filed pro se (Plaintiff averred that "[e]arly in 2007, plaintiff again relayed his concern and complained to his manager, Mr. A. Chandrasekaran about the hostile work environment . . . ."). (Am. Compl. ¶ 9.) In his Second Amended Complaint, Plaintiff claimed that he elevated his complaints internally at Wyeth in April of 2007. (Second Am. Compl. ¶ 22.) In his Second Answer to Defendant's Motion to Dismiss, Plaintiff equivocates about the timing of his complaints ("Plaintiff made a second complaint about national origin based discrimination and harassment to Chandrasekaran in February and April 2007"; "after his last complaint of discriminatory treatment (February 2007)"; "on April 11, 2007, Plaintiff also made a complaint of discrimination"; "Furthermore, when Plaintiff complained to Chandrasekeran in February 2007 about the actions being taken against him . . . ."). (See Pl.'s Second Answer ¶¶ 4, 5, 13, 15.) 2015 U.S. Dist. LEXIS 41300, *3 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 63 of 139 Page 3 of 8 about workplace harassment based on his national origin, this time to Chandrasekeran. (Second Am. Compl. ¶ 22.) These complaints were of a similar nature to those in March of 2005. (Id.) In response to Plaintiff's complaints, Chandrasekaran replied: "People in this department believe that you fit a certain profile and they act on it adversely." (Id. at ¶ 23.) When challenged on this point, Chandrasekaran replied: "You cannot fight city hall; you will lose." (Id. at ¶ 25.) 4. Events Leading Up to Termination of Plaintiff's Employment In November 2006, Plaintiff discovered an error in his confidential Human Resources records, which listed a "disabled dependent." Plaintiff does not have any disabled dependents. (Id. at ¶ 29, 30.) After repeated efforts to investigate and correct the mistake, Plaintiff requested a meeting with senior officials in the Human Resources Department. (Id. at ¶¶ 31-33.) On May 2, 2007, Plaintiff was approached by a Human Resources Representative, Kevin Gravatt. (Id. at ¶ 35.) Plaintiff insisted on speaking with a more senior Human Resources employee. (Id.) On May 16, 2007, Chandrasekeran requested a meeting with Plaintiff. (Id. at ¶ 36.) Plaintiff went to Chandrasekeran's office but saw there was already an ongoing meeting. (Id. at ¶ 37.) Plaintiff returned to his office. (Id.) Upon doing so, Chandrasekeran and Gravatt came to Plaintiff's office accompanied by at least one Wyeth security official. (Id. at ¶ 38.) They advised [*9] Plaintiff that the purpose of their meeting was the Human Resources records issue. Plaintiff responded with frustration. (Id. at ¶¶ 39-40.) By Plaintiff's account, aside from the "intimidating and threatening show of force" by Wyeth employees, the meeting in Plaintiff's office was wholly uneventful. (Id. at ¶¶ 38, 41.) Two days later, on May 18, 2007, Chandrasekeran placed Plaintiff on indefinite disciplinary suspension without explanation. (Id. at ¶ 42.) On May 30, 2007, Chandrasekeran terminated Plaintiff's employment. Plaintiff alleges that the stated reason for the termination was Plaintiff's refusal to meet with Plaintiff's chronology of events in 2007 is unclear, but this dispute is of no moment. As Plaintiff concedes, and as we address infra at Section III.A.1, the only discrete event serving as the basis for Plaintiff's Title [*8] VII claims is the termination of his employment by Wyeth. (See Pl.'s Second Answer ¶ 13.) For the purposes of this decision, we rely on the date April 11, 2007, provided in Plaintiff's Second Amended Complaint. Chandrasekeran regarding Plaintiff's performance and behavior. (Id. at ¶ 43.)5 5. November 17, 2007 Letter and Charge On November 17, 2007, Plaintiff sent a letter with an enclosed Pennsylvania Human Relations Commission ("PHRC") Charge for joint filing [*10] with the U.S. Equal Employment Opportunity Commission ("EEOC"). Plaintiff alleged job discrimination and wrongful termination, asserting that Wyeth's termination of his employment was on the basis of national origin and religion. (See Pl.'s Second Answer Ex. A.) The letter was signed by the Plaintiff but the Charge was not verified. (Id.) The letter specifically requests "timely consideration of the filing since the adverse action (job termination) by the employer occurred on June 1, 2007." (Id.) Plaintiff never amended his filing with the PHRC, and the PHRC did not issue a ruling based on Plaintiff's filing. 6. January 7, 2008 Filing On January 7, 2008, Plaintiff filed a Charge against Wyeth with the EEOC for joint filing with the PHRC alleging national origin discrimination and retaliation. (See Def.'s Second Mot. Ex. A.) In his filing with the EEOC, Plaintiff did not name the Individual Defendants as parties. (Id.) Plaintiff did, however, identify Ruffolo, Chandrasekaran, Scatina, and Patel by name in the filing. On February 28, 2008, the PHRC notified Defendant Wyeth that it had waived the opportunity to investigate Plaintiff's charge pursuant to its Worksharing Agreement with the [*11] EEOC. (See Def.'s Mot. ¶ 2 & n.3.) On January 30, 2009, the EEOC issued a Notice of Right to Sue. This action followed. II. LEGAL STANDARD Under Federal Rule of Civil Procedure 8(a)(2), a pleading that states a claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Failure to state a claim upon which relief can be granted is basis for dismissal of the complaint. Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual 5 In their Motion To Dismiss the Second Amended Complaint, Defendants state that "Plaintiff was terminated for insubordination and disrespectful behavior after he flatly refused to meet with his supervisor, screamed at and slammed a door on a co-worker, and stormed out of the building. (Def.'s Second Mot. ECF No. 25-1 at 2). 2015 U.S. Dist. LEXIS 41300, *7 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 64 of 139 Page 4 of 8 matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). While a court must "'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief,'" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008), "a court need not accept as true 'legal conclusions' or '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . . .'" Wilson v. City of Phila., 415 F. App'x 434, 436 (3d Cir. 2011) (quoting Iqbal, 556 U.S. at 678). "A complaint may not [*12] be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." McTernan v. City of York, Pa., 564 F.3d 636, 646 (3d Cir. 2009). However, a plaintiff's claims "'must contain more than an unadorned, the-defendant- unlawfullyharmed-me accusation.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Although plaintiffs in a Title VII employment discrimination suit must eventually satisfy the burden- shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), Plaintiff is correct that, at this juncture, he need not establish a prima facie case of discrimination. See Fowler, 578 F.3d at 213 ("Even post-Twombly, it has been noted that a plaintiff is not required to establish the elements of a prima facie case but instead, need only put forth allegations that 'raise a reasonable expectation that discovery will reveal evidence of the necessary element.'"); Karipidis v. ACE Gaming LLC, No. 09-3321, 2010 U.S. Dist. LEXIS 56617, 2010 WL 2521209, at *7 (D.N.J. June 9, 2010) ("To prevent dismissal, a plaintiff must set out sufficient factual matter to show that the claim is facially plausible."). In determining whether dismissal is appropriate at this stage, courts complete a two-part analysis. Fowler, 578 F.3d at 210. First, the court separates the factual and legal elements of the claim and accepts all of the complaint's well-pleaded facts as true. Id. at 210-11. Next, the court determines whether the facts alleged in the [*13] complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211. III. DISCUSSION A. Title VII Termination and Retaliation Claims (Counts I and II) Plaintiff claims that Defendant "foster[ed] and perpetuat[ed] a hostile and offensive work environment, retaliating against [Plaintiff] because of hi[s] expressed opposition to offensive national origin related conduct in the work place . . . . [and] "retaliated against Plaintiff for exercising his rights under Title VII." (Second Am. Compl. ¶¶ 57, 60.) Defendants argue that Plaintiff's Title VII claims (Counts I and II) are time-barred, or, in the alternative, should be dismissed because Plaintiff has failed to allege a plausible claim of discrimination. 1. Timeliness Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to "discharge any individual . . . because of such individual's . . . national origin." 42 U.S.C. § 2000e-2(a)(1). Prior to bringing an action in federal court, a plaintiff must first exhaust his or her claim in available administrative avenues. See Noel v. The Boeing Co., 622 F.3d 266, 270 (3d Cir. 2010). One such avenue is filing a Charge with the EEOC within 300 days of the alleged unlawful employment action. See 42 U.S.C. § 2000e-5(e)(1); Baur v. Crum, 882 F. Supp. 2d 785, 798 (E.D. Pa. 2012) ("Before filing a Title VII complaint in federal court, a plaintiff [*14] must first file a complaint with the EEOC and must receive a Right to Sue letter from the EEOC."). As a general rule, events that occurred more than 300 days prior to the filing of an EEOC Charge are time-barred. See Mikula v. Allegheny Cnty. of Pa., 583 F.3d 181, 183 (3d Cir. 2009). Here, Plaintiff filed his charge with the EEOC on January 18, 2008. Accordingly, events occurring before March 13, 2007 would be time-barred. Each chronology of workplace discrimination is unique and the contours of the EEOC filing requirements and resulting time limitations often match up imperfectly with the alleged conduct. As such, "a plaintiff may pursue a Title VII claim for discriminatory conduct that began prior to the filing period if he can demonstrate that the act is part of an ongoing practice or pattern of discrimination of the defendant . . . ." Hightower v. Easton Area Sch. Dist., 818 F. Supp. 2d 860, 880 (E.D. Pa. 2011) (quoting West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)). To avail himself of this "continuing violations" theory, a plaintiff must establish two elements: (1) that at least one discriminatory act occurred within the 300 day filing period; and (2) that the harassment eclipses 2015 U.S. Dist. LEXIS 41300, *11 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 65 of 139 Page 5 of 8 isolated events of intentional discrimination and constitutes an ongoing pattern of discrimination. See Mock v. Northampton Cnty. Sheriff's Dept., No. 07-3607, 2008 U.S. Dist. LEXIS 59133, 2008 WL 2996714, at *5 (E.D. Pa. Aug. 5, 2008) (finding pervasive pattern of sexual discrimination to constitute a continuing violation); [*15] Parikh v. United Parcel Serv., Inc., No. 09-1652, 2011 U.S. Dist. LEXIS 125548, 2011 WL 5193104, at *3-4 (D.N.J. Oct. 31, 2011) (finding the continuing violation doctrine inapplicable to two discrete and questionably discriminatory acts that occurred over a two-year period). Defendant Wyeth terminated Plaintiff's employment on May 30, 2007. This is within the 300-day time frame. Defendants go to great lengths to establish the inapplicability of the continuing violations theory. Defendants argue that Plaintiff is attempting to bootstrap prior discrete time-barred events into his claims. We disagree. The prior discrete discriminatory acts alleged by Plaintiff color the events surrounding Defendant Wyeth's firing of Plaintiff and "may . . . be used as background evidence to support timely claims." McCann v. Astrue, 293 F. App'x 848, 850 & n.3 (3d Cir. 2008); see also Stewart v. Rutgers, The State Univ., 120 F.3d 426, 433 (3d Cir. 1997) ("While the district court was correct in finding that any discrimination claim based on [plaintiff's] 1992-93 tenure denial is time-barred, we reject the notion that events surrounding that denial are not relevant evidence which [plaintiff] could use at trial."); Nott v. Reading Hosp. And Medical Ctr., No. 11- 2265, 2012 U.S. Dist. LEXIS 34140, 2012 WL 848245, at *10 n.7 (E.D. Pa. Mar. 14, 2012) ("Accordingly, the Court will limit its review of this claim to [p]laintiff's termination; however we may look to the untimely acts as background evidence to support her alleged discriminatory termination."); Davis v. Gen. Accident Ins. Co. of Am., No. 98-4376, 2000 U.S. Dist. LEXIS 17356, 2000 WL 1780235, at *3 (E.D. Pa. Dec. 1, 2000) (denying defendant's motions in limine to exclude [*16] evidence of time-barred claims and evidence). Accordingly, Plaintiff's Title VII claims are timely insofar as the actionable unlawful employment action is the termination of Plaintiff's employment. 2. Merits of Discriminatory Termination Claim (Count I) As mentioned above, to establish a claim of discriminatory termination of his employment, Plaintiff must satisfy the burden-shifting framework set forth by McDonnell Douglas. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Mikell v. Marriott Intern, Inc., 789 F. Supp. 2d 607, 616 (E.D. Pa. 2011) ("The McDonnell Douglas burden-shifting framework also applies to claims of discriminatory termination"). In doing so, first, Plaintiff has the burden to establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 801- 802. Plaintiff establishes a prima facie case of discrimination through a showing of the following: (1) that he is a member of a protected class; (2) that he is qualified for his employment; (3) that his employment was terminated; (4) under circumstances that give rise to an inference of unlawful discrimination. Jones v. Sch. Dis. Of Philadelphia, 198 F.3d 403, 410-11 (3d Cir. 1999); Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 347 (3d Cir. 1999) ("[A] plaintiff claiming discriminatory firing need not prove, to make out a prima facie case, that she was replaced by someone outside the relevant class."). Once the plaintiff has successfully met his burden, the burden shifts to the defendant to establish [*17] a legitimate, non-discriminatory reason for the adverse employment action. Smith v. Borough of Wilkinsburg, 147 F.3d 272, 278 (3d Cir. 1994)). If the defendant offers legitimate non-discriminatory reasons, the burden shifts back to the plaintiff to establish that the defendant's proffered reasons for the adverse employment action are pretextual. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). "Notwithstanding this burden shifting framework, at all times, the ultimate burden of persuading the trier of fact that Defendant intentionally discriminated against plaintiff remains with plaintiff." Ade v. KidsPeace Corp., 698 F. Supp. 2d 501, 512 (E.D. Pa. 2010) (citing Sarullo v. U.S. Postal Serv., 352 F.3d 789, 799 n.10 (3d Cir. 2003)). Defendants claim that Plaintiff has not met his burden under McDonnell Douglas. We agree. As defined by the EEOC, national origin discrimination is "the denial of an equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1. Defendants concede that Plaintiff is a member of a protected class, that Plaintiff was qualified for his position, and that Defendant Wyeth's termination of Plaintiff's employment constitutes an "adverse employment action" under Title VII. Defendants contend, however, that Plaintiff's factual pleadings regarding the discriminatory [*18] nature of his firing are insufficient. 2015 U.S. Dist. LEXIS 41300, *14 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 66 of 139 Page 6 of 8 Plaintiff identifies a number of vague comments and non-specific experiences indicating that employees at Wyeth targeted him for harassment.6 Plaintiff contends that after years of extra scrutiny by security, issues with internal administration, and repeated requests for work authorization paperwork, he registered a second round of complaints to his supervisor in 2007. (Second Am. Compl. ¶¶ 18, 21, 22.) Upon doing so, Plaintiff was told: "People in this department believe that you fit a certain profile and they act on it adversely." (Id. at ¶ 23.) Plaintiff connects his termination in May of 2007 with the harassment he endured at Wyeth, and particularly with the comment by his supervisor. Plaintiff asserts that the harassment and the comment are directly related to his Egyptian heritage. This is pure speculation. The Second Amended Complaint contains no facts that directly or indirectly link the alleged harassment to Plaintiff's national origin. Plaintiff's speculative assertions are not sufficient to show that Plaintiff has a "plausible claim for relief." See Thomas v. Pocono Mountain Sch. Dist., No. 10-1946, 2011 U.S. Dist. LEXIS 65792, 2011 WL 2471532, at *6 (M.D. Pa. June 21, 2011) (finding plaintiff's claim of destructive discharge "mere speculation in the absence [*19] of facts from which a reasonable inference of discrimination can be drawn"); Waiters v. Hudson Cnty. Corr. Ctr., No. 07-421, 2010 U.S. Dist. LEXIS 44393, 2010 WL 1838468, at *4 (D.N.J. May 5, 2010) (noting that "Plaintiff bases her race and ancestry allegations on mere speculation about the motives behind her discipline and discharge," and that "[s]peculation is simply not evidence of discrimination"). Plaintiff has failed to connect the vague comment from a supervisor to his termination. He has not established that his claim of discriminatory firing is "facially plausible." Fowler, 578 F.3d at 210. In fact, Plaintiff's Second Amended Complaint alleges that the meeting that precipitated the termination of his employment was related to the ongoing dispute about the discrepancy in Human Resources records. (Second Am. Compl. ¶ 39.)7 6 Nearly all of Plaintiff's registered complaints are unmoored in time, fail to identify individuals involved, and do not deal with anything related to national origin discrimination. (See, e.g., "being shadowed," "being 'escorted,'" "being confronted," "delayed promotions," non-upgraded computer and telephone equipment, "being removed from meetings," "more frequent evaluation(s)," and "discrimination and retaliation [ ] by his supervisors"). (Second Am. Compl. ¶¶ 18, 21, 27.) 7 In his Answer to Defendant's Second Motion [*20] to Dismiss, Plaintiff frames the Human Resources issue as General allegations of discrimination based on national origin lacking specificity and lacking any reasonable nexus are insufficient. See Guirguis v. Movers Specialty Servs., Inc., 346 F. App'x 774, 776 (3d Cir. 2009) (upholding district court's dismissal of discriminatory termination suit based on plaintiff's failure to connect scant factual allegations to discrimination based on national origin); Karipidis, 2010 U.S. Dist. LEXIS 56617, 2010 WL 2521209, at *9-10 (granting defendant's motion to dismiss in employment discrimination suit, inter alia, based on failure of plaintiff to state a claim that he had suffered an adverse employment decision as a result of discrimination); Jones v. Express Jet Airlines, No. 11-926, 2011 U.S. Dist. LEXIS 121226, 2011 WL 5024435, at *3 (D.N.J. Oct. 17, 2011) (granting defendant's motion to dismiss employment discrimination suit, inter alia, based on plaintiff's failure to provide sufficient facts linking termination to racial discrimination); Gerald v. Locksley, 785 F. Supp. 2d 1074, 1118-19 (D.N.M. 2011) (granting defendant's motion to dismiss employment discrimination suit, inter alia, based on plaintiff's failure to provide background information that would highlight the alleged workplace discrimination); Bradley v. Aria Health, No. 10-5633, 2011 U.S. Dist. LEXIS 63386, 2011 WL 2411026, at *3 (E.D. Pa. June 15, 2011) (granting defendant's motion to dismiss in employment discrimination suit where plaintiff failed to support allegation of pretextual discrimination behind termination [*21] of employment). 3. Merits of Retaliation Claim (Count 2) Defendant also challenges the sufficiency of Plaintiff's pleadings on his retaliation claim. Under Title VII, "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Plaintiff advances a "pretext" retaliation claim. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003). To properly establish a prima facie case of retaliation, plaintiff must show the following: (1) he engaged in a protected activity; (2) the employer took an adverse action against him; and (3) there is a causal connection between his participation in the protected activity and the adverse employment action. See Moore v. City of Phila., 461 F.3d 331, 340- 41 (3d Cir. 2006) (citing Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). As with a claim based on discriminatory termination, at the dispositive motion "unrelated." (Pl.'s Second Answer ¶ 4.) 2015 U.S. Dist. LEXIS 41300, *18 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 67 of 139 Page 7 of 8 stage, retaliation claims are subject to the McDonnell- Douglas burden-shifting framework. See Williams v. Phila. Housing Auth. Police Dep't, 380 F.3d 751, 759 n.3 (3d Cir. 2004). At this stage, Plaintiff need only satisfy the Fowler standard that he has alleged sufficient facts to demonstrate a "plausible claim for relief." "[P]rotected activity" includes opposition to unlawful discrimination under Title VII. [*22] Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 322 (3d Cir. 2008) (citing Moore, 461 F.3d at 340). Plaintiff's belief that the activity is unlawful must be objectively reasonable. Id. While "[a] general complaint of unfair treatment is insufficient to establish protected activity under Title VII," Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006), grievances, formal or informal, relating to discriminatory conduct prohibited by Title VII will be protected. Here, Plaintiff complained to his supervisor about national origin discrimination. (Second Am. Compl. ¶ 22.) Plaintiff satisfies the first prong of the Title VII retaliation inquiry. As with the discriminatory termination charge, Plaintiff relies on the termination of his employment as the "adverse action" taken against him. (See Pl.'s Second Answer ¶ 13.) In evaluating the third prong, a causal connection between the protected activity and adverse employment action is established if the plaintiff pleads temporal proximity that is unusually suggestive. See Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (citing Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003)). Even assuming Plaintiff's final round of complaints were issued in April of 2007, which requires a liberal reading of Plaintiff's papers, we do not find the thirty-eight day period between complaints and Plaintiff being placed on indefinite disciplinary suspension to be unusually suggestive. See, e.g., [*23] Thomas, 351 F.3d at 114 (concluding that three-week delay between issuance of complaint and termination letter was not unduly suggestive); Garrett v. Atlanticare Health Sys., Inc., No. 07-5416, 2009 U.S. Dist. LEXIS 97547, 2009 WL 3446755, at *5 (D.N.J. Oct. 21, 2009) (finding thirty- seven day gap not unduly suggestive).8 Where the temporal proximity is not unduly suggestive, 8 In this case, thirty-eight days is the shortest possible gap between participation in protected activity and adverse employment action. Plaintiff first complained about workplace discrimination in March 2005, possibly in February 2007, and again in April. His employment was not terminated until May 30, 2007. (Second Am. Compl. ¶ 43.) a plaintiff may provide evidence of intervening acts to buttress an inference of causation. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (requiring the causation element to be analyzed through the record as a whole, and not limited to "timing and demonstrative proof, such as actual antagonistic conduct or animus."). Plaintiff concedes that the only intervening events between Plaintiff's second complaints and his being placed on administrative leave were communications, often initiated by Defendants, to resolve the Human Resources records issue highlighted by Plaintiff. (Second Am. Compl. ¶¶ 34-39.) Taking into consideration the complaints made by Plaintiff at Wyeth, Plaintiff's [*24] pleadings do not establish a plausible causal connection between his participation in protected activity and his firing. The most direct evidence to which Plaintiff points is Chandrasekeran's statement, at least one month before Plaintiff's firing, that "people in this department believe that you fit a certain profile and they act on it adversely." (Second Am. Compl. ¶ 23.) This stray remark is insufficient. Silver v. Am. Inst. of Certified Pub. Accountants, 212 F. App'x 82, 85 (3d Cir. 2006) ("We note that stray remarks by decisionmakers, unrelated to the decision-making process, are rarely given weight, particularly if they are made temporally remote from the date of the decision."); see also Carilli v. Mutual of Omaha Ins. Co., 67 F. App'x 133, 135 (3d Cir. 2003) (finding that plaintiff failed to link stray remarks by supervisor to decision-makers to establish a pretextual discriminatory termination). We are satisfied that Plaintiff has not stated a plausible claim for retaliation under Title VII. B. Pennsylvania Human Relations Act Claims (Counts III and IV) Section 955 of the PHRA makes it "an unlawful discriminatory act" for an employer to discharge from employment any individual on the basis of that individual's national origin. 43 P.S. § 955(a). Similarly, as an analogue to Title VII, it is an "unlawful discriminatory act" for an employer to "discriminate in any manner [*25] against any individual because such individual has opposed any practice forbidden by this act, or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under this act." Id. at § 955(d). 1. PHRA Claims Against Defendant Wyeth (Count III) "The proper analysis under Title VII and the Pennsylvania Human Relations Act is identical, as Pennsylvania courts have construed the protections of 2015 U.S. Dist. LEXIS 41300, *21 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 68 of 139 Page 8 of 8 the two acts interchangeably." Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 n.2 (3d Cir. 2009) (quoting Weston v. Pennsylvania, 251 F.3d 420, 426 n.3 (3d Cir. 2001) (overruled in part on other grounds by Burlington N. & Santa Fe. Ry. Co., v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006))). Accordingly, as with this Court's analysis on Plaintiff's Title VII claims, Plaintiff's PHRA claim against Defendant Wyeth must be dismissed. 2. PHRA Claims Against Individual Defendants (Count IV) Section 955(e) of the PHRA permits a plaintiff to recover from individual employees who aid and abet violations of Section 955 of the PHRA. 43 P.S. § 955(e); Dici v. Com. of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996). Individual defendants cannot, however, be liable for violations of Section 955(e) if there is no primary violation of the PHRA. See Kaniuka v. Good Shepherd Home, No. 05-2917, 2006 U.S. Dist. LEXIS 57403, 2006 WL 2380387, at *10 (E.D. Pa. Aug. 15, 2006); Burgess-Walls v. Brown, No. 11-275, 2011 U.S. Dist. LEXIS 94087, 2011 WL 3702458, at *6 (E.D. Pa. Aug. 22, 2011). Accordingly, Plaintiff's claim against the Individual Defendants must be dismissed. IV. CONCLUSION For the foregoing reasons, Defendants' Motion to Dismiss will granted, and Plaintiff's Second Amended Complaint will be dismissed. An appropriate Order follows. [*26] BY THE COURT: /s/ R. Barclay Surrick R. BARCLAY SURRICK, J. ORDER AND NOW, this 30th day of March, 2015, upon consideration of Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 25) and all documents submitted in support thereof and in opposition thereto, it is ORDERED that Defendant's Motion is GRANTED and Plaintiff's Complaint is DISMISSED. The Clerk of the Court is directed to mark this matter closed. IT IS SO ORDERED. BY THE COURT: /s/ R. Barclay Surrick R. BARCLAY SURRICK, J. End of Document 2015 U.S. Dist. LEXIS 41300, *25 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 69 of 139 Positive As of: May 17, 2017 5:40 PM Z Burlingame v. Pretium Packaging United States District Court for the Middle District of Pennsylvania August 8, 2006, Filed CIVIL ACTION NO. 1:05-CV-2469 Reporter 2006 U.S. Dist. LEXIS 54975 *; 2006 WL 2302375 JANE BURLINGAME, Plaintiff v. PRETIUM PACKAGING, et al., Defendants Case Summary Procedural Posture Plaintiff former employee filed suit against defendants, former employer and managers, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., unlawful termination in violation of the "public policy" of Pennsylvania, defamation, and conspiracy or failure to prevent a conspiracy to engage in the aforementioned acts, in violation of 42 U.S.C.S. §§ 1985(3), 1986. Defendants filed a motion to dismiss. Overview The employee alleged that defendants deprived her of employment opportunities because of her gender. The court held that there was no individual liability under Title VII. Next, the employee alleged that defendants created a hostile working environment in violation of Title VII. Specifically, the employee alleged that managers routinely prevented female employees from performing their work and attempted to systematically eliminate women from management positions. Although the employee complained about this behavior to her superiors, her complaints were ignored. The court found that the facts alleged by the employee, if proven, constituted a severe and pervasive environment of unwelcome sexual harassment. Regarding the employee's claim for Pennsylvania common law unlawful termination, the court found that because the Pennsylvania Human Relations Act provided a remedy for sexual harassment of employees, common law claims invoking "public policy" were not available. Next, the court found that the employee's defamation claim was time barred. Finally, the court found that without a cause of action for a "particular act" underlying the conspiracy, that conspiracy count must be dismissed. Outcome All counts against the individuals were dismissed. The employer's motion to dismiss was denied as to the hostile work environment claim and granted as to the claims for unlawful termination in violation of the "public policy" of Pennsylvania, defamation, and conspiracy or failure to prevent a conspiracy to engage in the aforementioned acts, in violation of 42 U.S.C.S. §§ 1985(3), 1986. LexisNexis® Headnotes Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN1[ ] A motion to dismiss tests the legal sufficiency of the complaint. When considering a motion to dismiss, the court accepts as true all factual allegations contained in the complaint and views them in the light most favorable to the plaintiff. The plaintiff is required to set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist. A court should grant a motion to dismiss only if it appears the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN2[ ] A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is properly granted when, taking all factual allegations and inferences as true, the moving party is Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 70 of 139 Page 2 of 8 entitled to judgment as a matter of law. The burden is on the moving party to show that no claim has been stated. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. However, a court need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Labor & Employment Law > ... > Title VII Discrimination > Scope & Definitions > General Overview HN3[ ] The United States Court of Appeals for the Third Circuit held that Congress did not intend to hold individual employees liable under Title VII. Labor & Employment Law > ... > Civil Actions > Exhaustion of Remedies > General Overview HN4[ ] Title VII actions take place only after Equal Employment Opportunity Commission exhaustion. Labor & Employment Law > Discrimination > Actionable Discrimination Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview HN5[ ] Courts treat the Pennsylvania Human Relations Act as coextensive with Title VII, its federal counterpart. Labor & Employment Law > ... > Burdens of Proof > Standards of Proof > Pervasive & Severe Standards Labor & Employment Law > ... > Harassment > Sexual Harassment > Hostile Work Environment HN6[ ] It is well-established that a Title VII discrimination claim can be predicated upon the existence of a hostile work environment. A successful environmental claim must allege sexual harassment so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment. Labor & Employment Law > ... > Burdens of Proof > Standards of Proof > Objective & Subjective Standards Labor & Employment Law > ... > Burdens of Proof > Standards of Proof > Pervasive & Severe Standards Labor & Employment Law > ... > Harassment > Sexual Harassment > Hostile Work Environment HN7[ ] Discrimination can alternatively be either "severe" or "pervasive" and still satisfy the requirements of a Title VII hostile work environment. However the sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. Simple teasing is not enough to create a hostile work environment. Rather, a court should evaluate the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. In conducting this evaluation, a court shall evaluate the overall scenario rather than reviewing each incident in isolation. Labor & Employment Law > ... > Sexual Harassment > Employer Liability > General Overview Labor & Employment Law > ... > Harassment > Sexual Harassment > Hostile Work Environment HN8[ ] A successful hostile work environment claim under Title VII must assert the existence of respondeat superior liability. The employer can be liable if it negligently or recklessly failed to take prompt and effective remedial action upon notice of harassment or the individual charged with creating the abusive atmosphere was indisputably within that class of an employer organization's officials who may be treated as the organization's proxy, such as the owner of the company or a supervisor in a sufficiently high position in the management hierarchy of the company for his actions to be imputed automatically to the employer. Labor & Employment Law > ... > Civil Actions > Exhaustion of Remedies > Right to Sue Letters Labor & Employment Law > Wrongful Termination > Public 2006 U.S. Dist. LEXIS 54975, *54975 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 71 of 139 Page 3 of 8 Policy HN9[ ] Exhaustion of administrative rights under the Pennsylvania Human Relations Act (PHRA) yields a right to sue under Pennsylvania state statute, specifically 43 Pa. Stat. Ann. § 962(c). The United States Court of Appeals for the Third Circuit found that: Because the Pennsylvania courts have frequently stated that the procedures legislatively mandated in the PHRA must be strictly followed, and because recognition of a common law action for the same claims would give the claimant an opportunity to circumvent the carefully drafted legislative procedures, where the public policy allegedly implicated by the employee discharge is derived entirely from a statute that also provides a legal remedy, Pennsylvania courts will not recognize a common law cause of action. Labor & Employment Law > ... > Harassment > Sexual Harassment > General Overview Labor & Employment Law > Wrongful Termination > Public Policy HN10[ ] Because the Pennsylvania Human Relations Act provides a remedy for sexual harassment of employees, common law claims invoking "public policy" are not available. Labor & Employment Law > ... > Civil Actions > Time Limitations > Estoppel, Tolling & Waiver HN11[ ] Federal district courts have consistently held that the pendency of a discrimination charge before the Pennsylvania Human Relations Commission or Equal Employment Opportunity Commission does not toll the statute of limitations for related Pennsylvania state tort claims. Labor & Employment Law > ... > Civil Actions > Time Limitations > Estoppel, Tolling & Waiver HN12[ ] The statutory period commences at the time the harm is suffered. In determining whether to toll the statute of limitations in a civil action, the Pennsylvania state courts have consistently adhered to the procedure of ascertaining when the harm was sustained, otherwise known as the "occurrence rule", and whether the discovery rule or doctrine of equitable estoppel is applicable. Given the reluctance of the Pennsylvania courts to stray from the occurrence rule, the discovery rule and the doctrine of equitable estoppel the Pennsylvania Supreme Court would not toll the statute of limitations for related state tort claims because of the pendency of a discrimination charge before the Pennsylvania Human Relations Commission or Equal Employment Opportunity Commission. Labor & Employment Law > Discrimination > Reconstruction Statutes HN13[ ] The United States Supreme Court found that Title VII violations are not actionable under 42 U.S.C.S. § 1985(3) because complainants should not be able to completely bypass the administrative process required to resolve a Title VII violation. Labor & Employment Law > Discrimination > Reconstruction Statutes HN14[ ] It is well established that 42 U.S.C.S. § 1985(3) does not itself create any substantive rights; rather, it serves only as a vehicle for vindicating federal rights and privileges which have been defined elsewhere. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > General Overview Labor & Employment Law > Discrimination > Reconstruction Statutes HN15[ ] A cause of action under 42 U.S.C.S. § 1986 applies when some of the defendants did not participate in a conspiracy but negligently refused to act to stop it. This claim is supplementary to a 42 U.S.C.S. § 1985(3) claim, in that it can only be pleaded once plaintiffs have sufficiently alleged a § 1985(3) violation. Counsel: [*1] For Jane Burlingame formerly known as Jane Mindler, Plaintiff: Franklin E. Kepner, Jr., Kepner, Kepner & Corba, P.C., Berwick, PA. For Pretium Packaging, Defendant: David C. Shipman, Elion, Wayne, Grieco, Carlucci, Shipman & Irwin, PC, Williamsport, PA. 2006 U.S. Dist. LEXIS 54975, *54975 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 72 of 139 Page 4 of 8 For Pretium Packaging, LLC, David Winslett, Defendants: Curtis C. Calloway, Lewis, Rice & Fingersh, L.C., St. Louis, MO; David C. Shipman, Elion, Wayne, Grieco, Carlucci, Shipman & Irwin, PC, Williamsport, PA. For Dale Behm, Andy Derby, Defendants: J. David Smith, McCormick Law Firm, Williamsport, PA. Judges: Yvette Kane, United States District Judge. Opinion by: Yvette Kane Opinion MEMORANDUM Before the Court are motions to dismiss from Defendants Pretium Packaging, LLC (Doc. No. 10), David Winslett (Doc. No. 11), and Dale Behm and Andy Derby (Doc. No. 23). The motions have been fully briefed and are ripe for disposition. For the reasons discussed below, the motions will be granted in part and denied in part. I. BACKGROUND 1 [*2] Plaintiff Jane Burlingame f/k/a/ Jane Mindler served as the Regional Director of Human Resources for Pretium Packaging, LLC from February 2001 until her termination on October 31, 2003. 2 During that time, Plaintiff contends that she suffered sexual harassment and discrimination that resulted in her termination. Plaintiff describes a working environment hostile to women in managerial positions. Defendants eliminated managerial positions held by women only to subsequently reinstate and fill the positions with men. (Doc. No. 1, PP 15, 32.) Despite her position as regional [*3] director of human relations, Plaintiff was 1 For purposes of evaluating the pending motions to dismiss, the Court accepts as true all well-pleaded allegations contained in the Complaint (Doc. No. 1). 2 Plaintiff names Pretium Packaging, LLC and Pretium Packaging as separate defendants in her Complaint. Pretium Packaging, LLC represents to the Court that Pretium Packaging does not exist as a separate legal entity. Plaintiff does not address this representation in her brief in opposition. Although counsel has entered an appearance on behalf of Pretium Packaging, if the entity exists, it did not participate in the instant motions to dismiss. neither invited to management meetings nor informed about certain terminations. (Id., P 15, 18-23.) One manager, Defendant Behm, refused to work with female employees, including Plaintiff, and avoided them in the hallways. (Id., P 24.) When Plaintiff learned that one management meeting was taking place, she entered the meeting, causing Defendant Behm to walk out upon her entry. (Id., P 19.) Although Plaintiff complained about the treatment to her superiors in the "Corporate Offices", she received no assistance. (Id., P 22.) Plaintiff also alleges that the individual defendants sexual harassed her. Male managers routinely discussed the attire and figures of the female employees, including Plaintiff. (Id., P 26. 3) Defendant Derby commented on Plaintiff's legs, her attire, and on another female co-worker's "perky breasts," while in the presence of Plaintiff. (Id., PP 25, 26. 4) After Plaintiff rebuffed Defendant Derby's 5 request for a date, he ignored Plaintiff "as retribution towards her rejection of him", negatively affecting Plaintiff's ability to perform her job. (Id., P 27.) Further, Defendant Winslett made [*4] the comment that Plaintiff needed to be "Dale [Behm]'s little cheerleader." (Id., P 23.) On October 31, 2003, Plaintiff's position was eliminated and she was terminated, allegedly because she was female. (Id., P 33.) Plaintiff pursued a remedy through the United States Equal Employment Opportunity Commission ("EEOC"), filing suit in this Court within 90 days of receiving a right-to-sue letter from them. (Id., P 1.) On November 28, 2005, Plaintiff filed the instant civil action. (Doc. No. 1.) In six counts, the Complaint alleges: deprivation of job opportunities in violation of 42 U.S.C. § 2000e et seq. [*5] ("Title VII") (Count I); hostile work environment in violation of Title VII (Count II); unlawful termination in violation of the "public policy" of Pennsylvania (Count III); defamation in violation of Pennsylvania state law (Count IV), and conspiracy or failure to prevent a conspiracy to engage in the aforementioned acts, in violation of 42 U.S.C. §§ 3 This citation refers to the first instance of P 26 in Plaintiff's Complaint. 4 Plaintiff's Complaint lists P 26 twice. This citation refers to the second instance. 5 While Defendant Derby is identified in Plaintiff's Complaint, Plaintiff's briefs opposing the various Defendants' motions to dismiss identify Defendant Behm as the one who asked Plaintiff on a date. (Doc. Nos. 24, 25, and 29 at 3.) 2006 U.S. Dist. LEXIS 54975, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 73 of 139 Page 5 of 8 1985(3) (Count V) and 1986 (Count VI). (Id.) Pretium Packaging, LLC moves to dismiss Counts II-VI (Doc. No. 10), and Defendants Winslett, Behm, and Derby ("individual Defendants") move to dismiss all counts of the Complaint. (Doc. Nos. 11, 23.) II. STANDARD OF REVIEW HN1[ ] A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When considering a motion to dismiss, the court accepts as true all factual allegations contained in the complaint and views them in the light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The plaintiff is required to "set forth sufficient information to outline the elements of his claim or to permit inferences to [*6] be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court should grant a motion to dismiss only if it appears the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985) (citations omitted). HN2[ ] A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). 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, 908 (3d Cir. 1997). [*7] "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Lake v. Arnold, 112 F.3d 682, 688 (3d Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). III. DISCUSSION A. Count I: Deprivation of Employment Opportunities in violation of Title VII In Count I, Plaintiff alleges that Defendants deprived her of employment opportunities because of her gender, in violation of Title VII. 6 Pretium Packaging, LLC does not move to dismiss this count. The individual Defendants move to dismiss, arguing that individuals may not be held liable under Title VII. Kachmar v. Sungard Data Systems, Inc., 109 F.3d 173, 184 (3d Cir. 1997); Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3d Cir. 1996). Plaintiff counters that "[while] it is true that Courts have held that there is no individual liability under Title VII some Courts have held otherwise," citing Doe v. William Shapiro, Esq., P.C., 852 F. Supp. 1246, 1252 (E.D. Pa. 1994) [*8] to support that proposition. However, two years after Doe, in an en banc decision, HN3[ ] the Third Circuit held "that Congress did not intend to hold individual employees liable under Title VII." Sheridan, 100 F.3d at 1078. Third Circuit precedent defeats Plaintiff's argument. Accordingly, the individual Defendants' motions to dismiss Count I will be granted. B. Count II: Hostile Work Environment in violation of Title VII [*9] 1. Individual Defendants Count II alleges that Defendants created a hostile working environment in violation of Title VII. Because Count II is also based on a Title VII claim, the individual Defendants may not be held liable. Sheridan, 100 F.3d at 1078. Accordingly, the individual Defendants' motions to dismiss Count II will be granted. 2. Pretium Packaging, LLC Pretium Packaging, LLC also moves to dismiss Count II, arguing that Plaintiff has not specifically alleged that she was subjected to unwelcome sexual harassment and therefore has not stated a proper Title VII claim of a "hostile work environment". (Doc. No. 15 at 2-3.) HN6[ ] It is well-established that a Title VII discrimination claim can be predicated upon the existence of a hostile work 6 HN4[ ] Title VII actions take place only after EEOC exhaustion. The Court notes that Plaintiff appended to her Complaint a right-to-sue letter from the Pennsylvania Human Relations Commission ("PHRC"). (Doc. No. 1, Plaintiff's Ex. A.) HN5[ ] Courts treat the PHRA as coextensive with Title VII, its federal counterpart. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996); see also McLaughlin v. Rose Tree Media Sch. Dist., 1 F. Supp. 2d 476, 481-82 (E.D. Pa. 1998) ("[C]ourts have held that the PHRA should be interpreted consistently with Title VII."). 2006 U.S. Dist. LEXIS 54975, *5 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 74 of 139 Page 6 of 8 environment. Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986)); Jensen v. Potter, 435 F.3d 444, 448 (3d Cir. 2006). A successful environmental claim must allege "sexual harassment so 'severe or pervasive' as to 'alter the conditions of [the victim's] employment and create an abusive working [*10] environment.'" Faragher, 524 U.S. at 786 (citing Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982). HN7[ ] The discrimination can alternatively be either "severe" or "pervasive" and still satisfy the requirements of a Title VII hostile work environment. Jensen, 435 F.3d at 449 n.3. However the "sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." Faragher, 524 U.S. at 787 (citing Harris v. Forklift Sys., 510 U.S. 17, 21-22, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)). "Simple teasing" is not enough to create a hostile work environment. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). Rather, a court should evaluate the "frequency of the discriminatory conduct[,] its severity[,] whether it is physically threatening or humiliating, or a mere offensive utterance[,] and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. In conducting this evaluation, a court shall evaluate the "overall scenario" rather [*11] than reviewing each incident in isolation. Jensen, 435 F.3d at 450 (quoting Andrews v. Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990)). Finally, HN8[ ] a successful hostile work environment claim under Title VII must assert "the existence of respondeat superior liability." Andrews v. City of Philadelphia, 895 F. 2d 1469, 1482 (3d Cir. 1990). The employer can be liable if it negligently or recklessly failed to take prompt and effective remedial action upon notice of harassment or "the individual charged with creating the abusive atmosphere . . . was indisputably within that class of an employer organization's officials who may be treated as the organization's proxy," such as the owner of the company or a supervisor in a "sufficiently high position 'in the management hierarchy of the company for his actions to be imputed automatically to the employer.'" Faragher, 524 U.S. at 789-90 (quoting Torres v. Pisano, 116 F.3d 625, 634 (2d Cir. 1997)); Knabe v. Boury Corp., 114 F.3d 407, 411 (3d Cir. 1997). Plaintiff describes a working environment very hostile to female employees. Plaintiff alleges [*12] that managers at Pretium Packaging, LLC routinely prevented female employees from performing their work and attempted to systematically eliminate women from management positions. Plaintiff alleges that Defendant Behm refused to work with or speak to female employees. Although Plaintiff complained about this behavior to her superiors, her complaints were ignored. Plaintiff further alleges that male employees regularly discussed the physical appearance of female employees in the workplace. Moreover, Plaintiff alleges that when she rejected Defendant Derby's request for a date, he began to ignore her, which negatively impacted her ability to perform her work. The facts alleged by Plaintiff, if proven, constitute a severe and pervasive environment of unwelcome sexual harassment. (Doc. No. 15 at 3.) Accordingly, Pretium Packaging, LLC's motion to dismiss Count II will be denied. C. Count III: Pennsylvania Common Law Unlawful Termination Count III of Plaintiff's Complaint alleges that her termination was in violation of the common law of Pennsylvania, stating that the termination "violates public policy of the Commonwealth." (Doc. No. 1, P 53.) Defendants move to dismiss on the grounds [*13] that the existence of a legislative remedy and procedure, specifically the Pennsylvania Human Relations Act ("PHRA"), renders a common law remedy for that violation unavailable. Plaintiff does not address this argument in her briefs in opposition to Defendants' motions to dismiss Count III. HN9[ ] Exhaustion of administrative rights under the PHRA yields a right to sue under Pennsylvania state statute, specifically 43 P.S. § 962(c). The Third Circuit found that: [B]ecause the Pennsylvania courts have frequently stated that the procedures legislatively mandated in the [PHRA] must be strictly followed, and because recognition of a common law action for the same claims would give the claimant an opportunity to circumvent the carefully drafted legislative procedures, we predicted that where the public policy allegedly implicated by the employee discharge is derived entirely from a statute that also provides a legal remedy, Pennsylvania courts will not recognize a common law cause of action. Murray v. Commercial Union Ins. Co., 782 F.2d 432, 436 (3d Cir. 1986). See also Zarazed v. Spar Mgmt. 2006 U.S. Dist. LEXIS 54975, *9 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 75 of 139 Page 7 of 8 Servs., 2006 U.S. Dist. LEXIS 3302 at *22 (E.D. Pa. Jan. 30, 2006) [*14] (indicating that the PHRA preempts common law claims where that Pennsylvania statute is applicable); McGovern v. Jack D's, Inc., 2004 U.S. Dist. LEXIS 4326 at *5 (E. D. Pa. Feb. 25, 2004) ("[W]here a statute provides a remedy for a certain type of injury, a common law action designed to redress the same injury is rendered superfluous"). HN10[ ] Because the PHRA provides a remedy for sexual harassment of employees, common law claims invoking "public policy" are not available. Accordingly, Count III of Plaintiff's Complaint will be dismissed. D. Count IV: Defamation In Count IV, Plaintiff argues that Defendants have defamed her, ruining her reputation and humiliating her. Defendants move to dismiss this count, arguing, inter alia, that Plaintiff's defamation claim is barred by a one- year statute of limitations. See 42 Pa. Const. Stat. § 5523(1); Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (Pa. Super. 1983). (Doc. Nos. 15, 14, 28.) Plaintiff concedes that the defamatory acts ceased as of her October 31, 2003 termination date and that she did not file her claim until November 28, 2005, more than [*15] one year later. (Doc. No. 24 at 10.) However, Plaintiff argues, without citation, that the statute of limitations for her defamation claim should be tolled to exclude the time the PHRC and EEOC investigated her claims. Although the Pennsylvania Supreme Court has not yet spoken on this issue,HN11[ ] federal district courts have consistently extended the logic of Johnson v. Railway Express Agency, 421 U.S. 454, 465-66, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975) to hold that the pendency of a discrimination charge before the PHRC or EEOC does not toll the statute of limitations for related Pennsylvania state tort claims. See Hartman v. Sterling, Inc., 2003 U.S. Dist. LEXIS 18140 at *47-48 (E.D. Pa. 2003); Bacone v. Phila. Hous. Auth., 2001 U.S. Dist. LEXIS 9081 at *12 (E.D. Pa. 2001); Vaughan v. Pathmark Stores, Inc., 1999 U.S. Dist. LEXIS 6698 (E.D. Pa. 1999); Mincin v. Shaw Packing Co., 989 F. Supp. 710 (W.D. Pa. 1997). The Court finds the above holdings convincing. 7 Plaintiff cites to no authority, and 7 The Mincin court noted that in Pennsylvania, the general rule it that HN12[ ] "the statutory period commences at the time the harm is suffered" and found that "[i]n determining whether to toll the statute of limitations in a civil action, the Pennsylvania state courts have consistently adhered to the procedure of ascertaining when the harm was sustained, otherwise known as the 'occurrence rule', and whether the the Court finds none, to support her argument that this Court should toll the one-year statute of limitations. Accordingly, because [*16] Plaintiff's claim is time barred, Defendants' motions to dismiss Count IV of Plaintiff's Complaint will be granted. [*17] E. Count V: 42 U.S.C. § 1985(3) Conspiracy In Count V, Plaintiff alleges a conspiracy among the defendants in violation of 42 U.S.C. § 1985(3). Defendants move to dismiss Count V, arguing, inter alia, that the deprivation of a right created by Title VII cannot be the basis of a cause of action under § 1985(3). HN13[ ] The United States Supreme Court found that Title VII violations are not actionable under § 1985(3) because complainants should not be able to "completely bypass the administrative process" required to resolve a Title VII violation. Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 375-76, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979). As such, Plaintiff's Title VII claim cannot "be asserted within the remedial framework of § 1985(3)." Id., at 377 (emphasis in original). Without a cause of action for a "particular act" underlying the conspiracy, that conspiracy count must be dismissed. Nix v. Temple University, 408 Pa. Super. 369, 596 A.2d 1132, 1137 (Pa. Super. 1991). Plaintiff asserts no federal cause of action other than Title VII, and therefore she has no cause of action for an acceptable "particular [*18] act" underlying her conspiracy claim. See Brown v. Philip Morris, Inc., 250 F.3d 789, 805 (3d Cir. 2001) HN14[ ] ("It is well established that § 1985(3) does not itself create any substantive rights; rather, it serves only as a vehicle for vindicating federal rights and privileges which have been defined elsewhere."). Accordingly, Defendants' motions to dismiss Count V of Plaintiff's Complaint will be granted. F. Count VI: 42 U.S.C. § 1986 Failure to Prevent a Conspiracy Count VI alleges a violation of 42 U.S.C. § 1986 in discovery rule or doctrine of equitable estoppel is applicable." Id. at 718 (citing Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108, 115 (Pa. 1993); Robbins & Seventko v. Geisenberger, 449 Pa. Super. 367, 674 A.2d 244, 246 (Pa. Super. 1996)). The Mincin court concluded that "[g]iven the reluctance of the Pennsylvania courts to stray from the occurrence rule, the discovery rule and the doctrine of equitable estoppel . . . the Pennsylvania Supreme Court would not toll the statute of limitations for related state tort claims because of the pendency of a discrimination charge before the PHRC/EEOC." Id. at 719. 2006 U.S. Dist. LEXIS 54975, *13 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 76 of 139 Page 8 of 8 connection with Count V. HN15[ ] A cause of action under 42 U.S.C. § 1986 applies when some of the defendants did not participate in a conspiracy but negligently refused to act to stop it. This claim is supplementary to a § 1985(3) claim, in that "it can only be pleaded once plaintiffs have sufficiently alleged a § 1985(3) violation." Santiago v. Philadelphia, 435 F.Supp. 136, 156 (E.D. Pa. 1977) (citing Hahn v. Sargent, 523 F.2d 461, 470 (1st Cir. 1975)). Because Plaintiff's § 1985(3) claim will be dismissed, her § 1986 claim cannot survive. Accordingly, [*19] Defendants' motions to dismiss Count VI will be granted. An appropriate Order shall follow. ORDER AND NOW, this 8th day of August, 2006, IT IS HEREBY ORDERED THAT Defendant Winslett's (Doc No. 11) and Defendants Behm and Derby's (Doc. No. 23) Motions to Dismiss are GRANTED. All counts against Defendants Winslett, Behm, and Derby are DISMISSED. IT IS FURTHER ORDERED THAT Defendant Pretium Packaging, LLC's Motion to Dismiss (Doc. No. 10) is DENIED as to Count II and GRANTED as to Counts III, IV, V, and VI of Plaintiff's Complaint. Counts III - VI against Defendant Pretium Packaging, LLC are DISMISSED. s/ Yvette Kane United States District Judge End of Document 2006 U.S. Dist. LEXIS 54975, *18 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 77 of 139 Positive As of: May 17, 2017 5:40 PM Z Galvani v. Pennsylvania United States District Court for the Middle District of Pennsylvania November 4, 2008, Decided; November 4, 2008, Filed CIVIL ACTION NO. 1:08-CV-0393 Reporter 2008 U.S. Dist. LEXIS 89150 *; 2008 WL 4821748 MICHELLE GALVANI, Plaintiff v. COMMONWEALTH OF PENNSYLVANIA, DISTRICT COURT ADMINISTRATION FOR YORK COUNTY, STEVEN M. CARR, GEORGE SWARTZ, CHARLES WILLIAMS, and NANCY WILLIAMS, Defendants Subsequent History: Affirmed by, Motion denied by Galvani v. Pennsylvania, 2009 U.S. App. LEXIS 10117 (3d Cir. Pa., May 11, 2009) Prior History: Galvani v. Commonwealth, 2008 U.S. Dist. LEXIS 17038 (M.D. Pa., Mar. 5, 2008) Case Summary Procedural Posture Plaintiff mother brought the instant civil rights action under 42 U.S.C.S. §§ 1983, 1985, 1986, against defendants, the Commonwealth of Pennsylvania, a district court administration (DCA), an attorney, a conciliator, and parents, and alleged violations of her due process and equal protection rights under the Fourteenth Amendment, violations of the Fourth Amendment, and violations of the Pennsylvania Constitution. Defendants moved to dismiss. Overview The dispute centered around a determination granting partial custody of the mother's children to her parents. A custody trial was scheduled, but the parties were directed to begin immediate mediation with a court- designated mediator. The mother claimed that after this conciliation conference, her children were "seized" from her. As to the Commonwealth and DCA, the Eleventh Amendment precluded private federal litigation against a state and its agencies. Furthermore, Pennsylvania had elected to retain its sovereign immunity. Consequently, the mother's claims against the Commonwealth were jurisdictionally barred. Because it was an integral administrative office within a county court, the DCA was a state agency within the unified judicial system. Hence, it was immune from suit under the Eleventh Amendment principles described above. Next, he court held that the conciliator was entitled to absolute immunity with respect to his court-appointed duties. The conciliator served as an "arm of the court," akin to the guardian ad litem or court-appointed social workers. Accordingly, the court finds the conciliator immune from the mother's individual capacity claims. Outcome All four motions to dismiss brought by the Commonwealth, the DCA, the attorney, and the conciliator, were granted and the mother's claims were dismissed. LexisNexis® Headnotes Civil Procedure > ... > Defenses, Demurrers & Objections > Motions to Dismiss > Failure to State Claim HN1[ ] Fed. R. Civ. P. 12(b)(6) provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. When ruling on a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff. Although the court is generally limited in its review to the facts in the complaint, it may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 78 of 139 Page 2 of 12 Civil Procedure > ... > Pleadings > Complaints > Requirements for Complaint HN2[ ] Federal notice and pleading rules require the complaint to give the defendant notice of what the claim is and the grounds upon which it rests. The plaintiff must present facts that, if true, demonstrate a plausible right to relief. Fed. R. Civ. P. 8(a). The complaint should include a short and plain statement of the claim showing that the pleader is entitled to relief. Plaintiffs must allege facts sufficient to raise a right to relief above the speculative level. Thus, courts should not dismiss a complaint for failure to state a claim if it contains enough factual matter (taken as true) to suggest a required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element. Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > General Overview Civil Rights Law > Protection of Rights > Procedural Matters > General Overview Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope HN3[ ] 42 U.S.C.S. §§ 1983, 1985(3), 1986 create no substantive rights, but instead provide a remedy for infringement of rights created by other federal laws. Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope HN4[ ] 42 U.S.C.S. § 1983 offers private citizens a means to redress violations of federal law committed by state officials. The statute provides, in part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the U.S. Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. To establish a claim under this section, the plaintiff must show a deprivation of a right secured by the Constitution and the laws of the United States by a person acting under color of state law. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Elements HN5[ ] 42 U.S.C.S. § 1985(3) and § 1986 are closely related. Section 1985(3) prohibits conspiracies to deprive any person or class of persons of the equal protection of the laws, or equal privileges and immunities under the laws. To establish a prima facie case under § 1985(3), a plaintiff must prove that: (1) defendants engage in a conspiracy, (2) the conspiracy's purpose is to deprive, either directly or indirectly, any person or class of persons of equal protection of the laws or equal privileges and immunities under the laws, (3) defendants commit an act in furtherance of the conspiracy, and (4) defendants' actions result in injury to the plaintiff's person or property or a deprivation of the plaintiff's rights or privileges as a United States citizen. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Elements HN6[ ] Mere conclusory allegations of deprivations of constitutional rights are insufficient to state a 42 U.S.C.S. § 1985(3) claim. Rather, the plaintiff must allege the existence of an agreement among defendants, as well as the duration of the conspiracy, its object, and the actions taken in furtherance of it. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Knowing Nonprevention HN7[ ] See 42 U.S.C.S. § 1986. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Knowing Nonprevention HN8[ ] A prerequisite to a cognizable 42 U.S.C.S. § 1986 claim is the existence of a conspiracy prohibited by 42 U.S.C.S. § 1985. Once a § 1985(3) conspiracy is established, 42 U.S.C.S. § 1986 liability will attach only if a plaintiff demonstrates that the defendant knew about the conspiracy and had the power to prevent it. 2008 U.S. Dist. LEXIS 89150, *89150 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 79 of 139 Page 3 of 12 Civil Procedure > ... > Federal & State Interrelationships > State Sovereign Immunity > Waiver of Immunity Civil Rights Law > Protection of Rights > Conspiracy Against Rights > General Overview Civil Rights Law > Protection of Rights > Immunity From Liability > State Consent & Waiver of Immunity Constitutional Law > State Sovereign Immunity > Abrogation of Immunity Constitutional Law > State Sovereign Immunity > Waiver > General Overview HN9[ ] The Eleventh Amendment precludes private federal litigation against a state and its agencies. This is a jurisdictional bar subject to only two exceptions: (1) Congress may specifically abrogate a state's sovereign immunity by exercising its enforcement power under the Fourteenth Amendment, or (2) a state may waive its sovereign immunity by consenting to suit. With respect to the first exception, it is well settled that Congress had no intention to abrogate the states' sovereign immunity by enacting 42 U.S.C.S. § 1983, nor has Congress expressly abrogated Pennsylvania's immunity from suit under 42 U.S.C.S. § 1985(3). Constitutional Law > State Sovereign Immunity > General Overview HN10[ ] See U.S. Const. amend. XI. Civil Rights Law > Protection of Rights > Immunity From Liability > State Consent & Waiver of Immunity HN11[ ] 42 Pa. Cons. Stat. § 8521(b) clearly states that nothing contained in § 8521(b) shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment of the Constitution of the United States. This statutory language is unambiguous; Pennsylvania has elected to retain its sovereign immunity. Civil Procedure > ... > Pleadings > Amendment of Pleadings > Leave of Court HN12[ ] A district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile. Governments > Courts > Creation & Organization HN13[ ] Under the Pennsylvania Constitution, all Pennsylvania courts are part of a unified judicial system governed pursuant to the general supervisory and administrative authority vested in the Pennsylvania Supreme Court. Pa. Const. art. V, §§ 1, 2, 10. As part of the unified judicial system, each of the Pennsylvania lower courts and its agencies are arms of the Commonwealth government and thus are state rather than local agencies. Governments > Courts > General Overview Governments > State & Territorial Governments > Claims By & Against HN14[ ] When an arm of the unified judicial system is sued, the Commonwealth is the real party in interest. Civil Rights Law > Protection of Rights > Immunity From Liability > Judicial & Quasi-Judicial Functions Governments > Courts > Judges > Judicial Immunity HN15[ ] Certain individuals fulfilling well-established roles within the judicial process are entitled to absolute immunity from 42 U.S.C.S. § 1983 civil suits. A judicial officer in the performance of his duties has absolute immunity from suit. Judges, testifying witnesses, and prosecutors all enjoy absolute judicial immunity. Civil Rights Law > Protection of Rights > Immunity From Liability > Judicial & Quasi-Judicial Functions Governments > Courts > Judges > Judicial Immunity HN16[ ] The U.S. Court of Appeals for the Third Circuit has recognized the inherent sensitivity of child custody proceedings and, relatedly, the special need to protect judicial officers attempting to facilitate these proceedings. Accordingly, judicial immunity has been extended to cover individuals acting as guardian ad litem, social workers involved in the initiation and prosecution of child custody proceedings, and court- 2008 U.S. Dist. LEXIS 89150, *89150 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 80 of 139 Page 4 of 12 appointed doctors and psychiatrists. In the context of child custody proceedings, each of these judicial actors is court-appointed, bearing the responsibility of gathering information from the parties involved and reporting that information to the court via professional recommendations. Civil Rights Law > Protection of Rights > Immunity From Liability > Judicial & Quasi-Judicial Functions Governments > Courts > Judges > Judicial Immunity HN17[ ] A conciliator is a court-appointed mediator, attempting to fashion a custody order amenable to all parties prior to a full custody hearing. In this fashion, the conciliator serves as an "arm of the court," akin to the guardian ad litem or court-appointed social workers. The conciliator is an integral part of the judicial system, and is tasked with gathering information from the parties in order to exercise an independent judgment, to fairly mediate the parties' claims, and to make recommendations to the presiding judge. Exposing the conciliator to liability would greatly hinder the appropriate exercise of the conciliator's duties and, in all likelihood, render the court-appointed mediation toothless. Governments > State & Territorial Governments > Claims By & Against HN18[ ] A suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the state itself. Civil Rights Law > ... > Elements > Color of State Law > General Overview HN19[ ] The threshold inquiry in a 42 U.S.C.S. § 1983 cause of action is whether the individual in question acts under color of state law. This state action requirement restricts liability to those instances in which the defendant may fairly be characterized as a state actor. Civil Rights Law > Protection of Rights > Conspiracy Against Rights > Private Conspirators HN20[ ] Allegations under 42 U.S.C.S. § 1985(3) need not necessarily arise from state action. Purely private conspiracies to deprive an individual of the equal protection of the laws are cognizable in federal court so long as a plaintiff pleads the elements necessary to establish unlawful conspiratorial conduct. Civil Procedure > ... > Subject Matter Jurisdiction > Supplemental Jurisdiction > Same Case & Controversy HN21[ ] The supplemental jurisdiction statute, 28 U.S.C.S. § 1367(a), provides that in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Civil Procedure > ... > Subject Matter Jurisdiction > Supplemental Jurisdiction > General Overview HN22[ ] A district court retains the discretion to resolve disputes when only state law claims remain. Civil Procedure > ... > Subject Matter Jurisdiction > Supplemental Jurisdiction > Pendent Claims HN23[ ] In the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims. Counsel: [*1] Michelle Galvani, Plaintiff, Pro se, Hanover, PA. For Commonwealth of Pennsylvania, Defendant: Gregory R. Neuhauser, Office of Attorney General, Harrisburg, PA. For District Court Administration for York County, Steven M. Carr, Defendants: Michael W. Flannelly, LEAD ATTORNEY, York County - Solicitor, York, PA. For Charles Williams, Nancy Williams, Defendants: 2008 U.S. Dist. LEXIS 89150, *89150 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 81 of 139 Page 5 of 12 Laurie Ann Richardson, LEAD ATTORNEY, York Family Law Practice LLC, York, PA. For George Swartz, Esq., Defendant: Judith K. Morris, Mooney & Associates, Hanover, PA. Judges: CHRISTOPHER C. CONNER, United States District Judge. Opinion by: CHRISTOPHER C. CONNER Opinion MEMORANDUM Pro se plaintiff Michelle Galvani ("Galvani") brings this civil rights action pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against the following defendants: (1) the Commonwealth of Pennsylvania, (2) the District Court Administration for York County, (3) Steven M. Carr, Esquire, both in his individual and official capacity, (4) George Swartz, Esquire, both in his individual and official capacity, and (5) Charles and Nancy Williams, plaintiff's parents. With the exception of Charles and Nancy Williams, Galvani seeks to hold each of the defendants liable for violating her Fourteenth Amendment [*2] rights to substantive and procedural due process and equal protection, for engaging in behavior that constituted a violation of her Fourth Amendment rights to be free from unreasonable searches and seizures, and for violations of her rights under the Pennsylvania Constitution to due process, equal protection, and the right to be free from unreasonable searches and seizures. Additionally, Galvani alleges that each of the defendants committed the state law torts of false imprisonment, intentional infliction of emotional distress, and invasion of privacy. Presently before the court are four motions to dismiss (Docs. 7, 9, 13, 21), each filed on behalf of a separate defendant. For the reasons that follow, all four motions to dismiss will be granted and Galvani's claims will be dismissed. I. Statement of Facts 1 1 In accordance with the standard of review for a motion to dismiss, the court will present the facts as alleged in the complaint and in the public records provided by defendants. See infra Part II. The statements contained herein reflect neither the findings of the trier of fact nor the opinion of the court as to the reasonableness of the parties' allegations. Michelle Galvani is [*3] the natural mother of two minor children, identified as A.W. and E.J. The dispute in this case centers around a determination granting partial custody of these children to Galvani's parents, defendants Charles and Nancy Williams ("the Williamses"). In October 2007, the Williamses initiated a custody hearing in the York County Court of Common Pleas, the purpose of which was to seek modification of a child custody order issued January 22, 1999. 2 (See Doc. 9, Exs. 1, 2.) Before the custody hearing, and pursuant to a court directive, defendant Steven M. Carr ("Carr") was appointed conciliator for a pretrial child custody conciliation conference, 3 which took place on January 8, 2008. (Id.) Defendant George Swartz ("Swartz") acted as Galvani's counsel during this conciliation conference. (Doc. 6 P 5; Doc. 9, Ex. 1; Doc. 13.) When Galvani and the Williamses were unable to resolve their differences at the conciliation conference, an interim custody order was entered pending the outcome of trial. 4 (See Doc. 9, Ex. 2.) The order granted temporary joint legal custody to all parties, allowing both Galvani and the Williamses to "share in making decisions of importance" for the children. (Id. at 5.) Physical custody was determined "on a week on/week off basis," meaning that the children alternated week-long stays between Galvani and the Williamses. (Id.) Pursuant to the order, a custody trial was scheduled for March 24, 2008, but the parties were directed to begin immediate mediation with a court- designated mediator. (Id. at 2.) Galvani claims that after this conciliation conference, her children were "seized" 2 The January 22, 1999 custody order stated that A.W. and E.J.'s "parents would share legal custody, that Mother [Galvani] would have primary physical custody, that Fathers would have rights of partial custody and Grandparents [the Williamses] would have rights of partial custody as set forth therein." (Doc. 9, Ex. 2.) 3 The conciliation conference is a pretrial attempt [*4] to mediate custody disputes. (See Doc. 9, Ex. 2.) 4 The interim custody order was signed by the Honorable Maria Musti Cook, a judge in the Family Division of the York County Court of Common Pleas. (Doc. 9, Ex. 2.) However, the order was "entered as a result of a pre-trial conciliation conference held on January 8, 2008, before Steven M. Carr, Conciliator." (Id.) Thus, it appears [*5] from the public record that Judge Cook issued the interim order based upon Carr's recommendation. 2008 U.S. Dist. LEXIS 89150, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 82 of 139 Page 6 of 12 from her. 5 (See Doc. 6 P 31.) Although the record is unclear, it appears that Galvani and the Williamses attended a pretrial conference on March 6, 2008 before the Honorable Maria Musti Cook in the Family Division of the York County Court of Common Pleas. [*6] (See Doc. 6 P 10; Doc. 9, Ex. 2.) According to Galvani, this hearing resulted in the grant of "an 'Order of Detention' authorizing a third party to care for the minor" children. 6 (Doc. 6 P 17.) The custody dispute was then scheduled for trial in May 2008. (See Doc. 9, Ex. 1.) Galvani filed the instant action on April 2, 2008. (See Doc. 6.) She alleges that defendants the Commonwealth of Pennsylvania ("the Commonwealth"), the District Court Administration for York County ("York DCA"), Carr, and Swartz infringed her rights by: (1) violating her Fourteenth Amendment rights to substantive and procedural due process, and equal protection; (2) violating her Fourth Amendment right to be free from unreasonable searches and [*7] seizures; (3) and violating her state constitutional rights to due process, equal protection, and the right to be free from unreasonable searches and seizures. (Id.) Additionally, Galvani asserts the state law tort claims of false imprisonment, intentional infliction of emotional distress, and invasion of privacy against each of the named defendants. (Id. at 7.) To rectify her alleged injuries, 5 Galvani alleges very few facts in her complaint, making it difficult for the court to reconstruct a timeline of the key events underlying her claims. For example, Galvani's complete description of the January 8, 2008 conciliation hearing is as follows: "Defendant Steven M. Carr acted under color of state law when he seized the minor plaintiffs on January 8, 2008." (Doc. 6 P 31.) This "seizure" comprises the entire basis of plaintiff's Fourth Amendment claim. Viewed in its most favorable light, Galvani's description is woefully incomplete. As a result, the court has supplemented Galvani's recitation of the facts with information contained in the pertinent public records describing the court proceedings at issue in this case. Such records are well within the breadth of information upon which a court may rely in its consideration of a motion to dismiss. See infra Part II. 6 Galvani never explains the precise nature of the alleged "Order of Detention," or against whom it was issued. Additionally, the court has examined the records of the court proceedings submitted by the parties and is unable to discern any additional information regarding this order. However, the docket in the case suggests that the pretrial conference did not alter the interim custody order of January 8, 2008, and merely continued the case for trial. (See Doc. 9, Ex. 1.) Galvani requests injunctive relief from the January 8, 2008 custody order, the invalidation of certain Commonwealth statutes, which authorized the interim custody order to be issued, and $ 3,000,000 in damages. On April 3, 2008, the Commonwealth moved to dismiss the complaint on Eleventh Amendment sovereign immunity grounds. (Doc. 7.) York DCA filed a motion to dismiss on April 15, 2008, also asserting Eleventh Amendment immunity. (Doc. 9.) In the same motion, Carr claimed protection from suit under principles of absolute judicial immunity. (Id.) On April 29, 2008, Swartz filed a motion to dismiss for failure to state a claim under Rule 12(b)(6), and urged the court to abstain from entertaining the matter, or to dismiss it on Rooker-Feldman grounds. (Doc. 13.) Finally, the Williamses filed a [*8] motion to dismiss on May 1, 2008, arguing that this court lacked jurisdiction to adjudicate the state law tort claims Galvani asserted against them. (Doc. 21.) Each of these motions to dismiss has been briefed and is ripe for disposition. II. Standard of Review HN1[ ] Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). HN2[ ] Federal [*9] notice and pleading rules require the complaint to "give the defendant notice of what the . . . claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 U.S. Dist. LEXIS 79627, 2007 WL 3146357, at *4 (M.D. Pa. Oct. 26, 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating 2008 U.S. Dist. LEXIS 89150, *5 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 83 of 139 Page 7 of 12 that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) [*10] (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). III. Discussion Plaintiff brings her constitutional claims pursuant to HN3[ ] §§ 1983, 1985(3), 7 and 1986 of Title 42 of the United States Code. These sections create no substantive rights, but instead provide a remedy for infringement of rights created by other federal laws. See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002) (discussing § 1983); Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 372, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979) (discussing § 1985); Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) (discussing § 1986); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 222 n.28, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) (Brennan, J., concurring in part and dissenting in part) (discussing derivative nature of § 1986); Robison v. Canterbury Vill., 7 Galvani's complaint does not specify which subsection of 42 U.S.C. § 1985 defendants allegedly [*11] violated, but the court assumes she brings her claims under § 1985(3). Subsection 1985(1) applies to conspiracies that interfere with the duties of an officer of the United States, while § 1985(2) prohibits conspiracies intending to obstruct justice and intimidate litigants or witnesses. None of the parties in this matter are federal officers and plaintiff does not allege that defendants obstructed justice or intimidated her or anyone else in their capacity as witness or litigant. Therefore, the court will treat the complaint as asserting a claim under § 1985(3), which provides a remedy for conspiracies to violate civil rights. Inc., 848 F.2d 424, 431 n.10 (3d Cir. 1988) (same). HN4[ ] Section 1983 offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the [*12] party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . Id. To establish a claim under this section, the plaintiff must show a deprivation of a "right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). HN5[ ] Section 1985(3) and § 1986 are closely related. Section 1985(3) prohibits conspiracies to deprive "any person or class of persons of the equal protection of the laws, or equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). To establish a prima facie case under § 1985(3), a plaintiff must prove that: (1) defendants engaged in a conspiracy, (2) the conspiracy's purpose was to deprive, either directly or indirectly, any person or class of persons of equal protection of the laws or equal privileges and immunities under the laws, (3) defendants committed an act in furtherance of the conspiracy, and (4) defendants' actions resulted in injury to the plaintiff's person or property or a deprivation of the plaintiff's rights or privileges as a United States [*13] citizen. Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006); see also Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971); Brown v. Philip Morris, Inc., 250 F.3d 789, 805 (3d Cir. 2001). "HN6[ ] Mere conclusory allegations of deprivations of constitutional rights are insufficient to state a § 1985(3) claim." D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir. 1992) (quoting Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972)). Rather, the plaintiff must allege the existence of an agreement among defendants, as well as the 2008 U.S. Dist. LEXIS 89150, *9 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 84 of 139 Page 8 of 12 duration of the conspiracy, its object, and the actions taken in furtherance of it. See Ramsey v. Dintino, Civ. A. No. 05-5492, 2007 U.S. Dist. LEXIS 23517, 2007 WL 979845, at *9 (D.N.J. Mar. 30, 2007) (dismissing § 1985(3) claim for failure to allege existence of an agreement among defendants); Grigsby v. Kane, 250 F. Supp. 2d 453, 458 (M.D. Pa. 2003) (holding that plaintiff must allege the period, object, and acts taken in furtherance of a conspiracy to prevail on a motion to dismiss); Loftus v. Se. Pa. Transp. Auth., 843 F. Supp. 981, 986 n.8 (E.D. Pa. 1994) (citing Black & Yates, Inc. v. Mahogany Ass'n, Inc., 129 F.2d 227, 231 (3d Cir. 1941) ("A general allegation [*14] of conspiracy without a statement of the facts is an allegation of legal conclusion and insufficient of itself to constitute a cause of action.")); Kalmanovitz v. G. Heileman Brewing Co., 595 F. Supp. 1385, 1401 (D. Del. 1984) (requiring particularized allegations of conspiracy), aff'd, 769 F.2d 152 (3d Cir. 1985). Lastly, § 1986 provides that: HN7[ ] Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in [§ 1985] of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented. . . . 42 U.S.C. § 1986. Thus,HN8[ ] a prerequisite to a cognizable § 1986 claim is the existence of a conspiracy prohibited by § 1985. See Robison, 848 F.2d at 431 n.10; Pearson v. Miller, 988 F. Supp. 848, 859 (M.D. Pa. 1997) ("No claim can be maintained under section 1986 unless a cause of action has been established under section 1985."). Once a § 1985(3) conspiracy is established, § 1986 [*15] liability will attach only if a plaintiff demonstrates that the defendant knew about the conspiracy and had the power to prevent it. See Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994); Conroy v. City of Phila., 421 F. Supp. 2d 879, 888 (E.D. Pa. 2006). In the action sub judice, Galvani alleges that each of the named defendants, with the exception of the Williamses, violated her Fourteenth Amendment rights to due process and equal protection, her Fourth Amendment right to be free from unreasonable searches and seizures, and her state constitutional rights to due process, equal protection, and her right to be free from unreasonable searches and seizures. Additionally, Galvani claims that each of the defendants, including the Williamses, committed the state law torts of false imprisonment, intentional infliction of emotional distress, and invasion of privacy. For clarity of discussion, the court will address the claims against each of the defendants separately. A. The Commonwealth & York DCA Defendants HN9[ ] The Eleventh Amendment precludes private federal litigation against a state and its agencies. 8 Hans v. Louisiana, 134 U.S. 1, 15-16, 10 S. Ct. 504, 33 L. Ed. 842 (1890); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000); [*16] Lombardo v. Pennsylvania, 540 F.3d 190, 194-95 (3d Cir. 2008). This is a jurisdictional bar subject to only two exceptions: (1) Congress may specifically abrogate a state's sovereign immunity by exercising its enforcement power under the Fourteenth Amendment, or (2) a state may waive its sovereign immunity by consenting to suit. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S. Ct. 2219, 144 L. Ed. 2d 605 (1999); Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002). With respect to the first exception, it is well settled that Congress had no intention to abrogate the states' sovereign immunity by enacting § 1983, Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), nor has Congress expressly abrogated Pennsylvania's immunity from suit under § 1985(3), see, e.g., Zelinski v. Pa. State Police, 282 F. Supp. 2d 251, 264 (M.D. Pa. 2003), rev'd in part on other grounds, 108 F. App'x 700 (3d Cir. 2004); Breslin v. Brainard, No. 01-CA-7269, 2002 U.S. Dist. LEXIS 21907, 2002 WL 31520480, at *3 (E.D. Pa. Oct. 30, 2002); Seeney v. Kavitski, 866 F. Supp. 206, 209 (E.D. Pa. 1994), aff'd sub nom. Seeney v. Cmty. Action Agency of Del. County, Inc., 107 F.3d 8 (3d Cir. 1997). Furthermore, Pennsylvania has unequivocally withheld its consent to such suits. HN11[ ] Section 8521 of Title 42 of the Pennsylvania Code clearly states, "Nothing 8 The Eleventh Amendment provides: HN10[ ] The [*17] Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. CONST. amend. XI. 2008 U.S. Dist. LEXIS 89150, *13 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 85 of 139 Page 9 of 12 contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment of the Constitution of the United States." 42 PA. CONS. STAT. § 8521(b). This statutory language is unambiguous; Pennsylvania elected to retain its sovereign immunity. See Lombardo, 540 F.3d at 196 n.3; Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Consequently, Galvani's claims against the Commonwealth are jurisdictionally barred and must be dismissed. Leave to amend this claim will be denied as futile. See Grayson, 293 F.3d at 108 (observing that HN12[ ] the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile). Galvani also asserts civil rights violations against [*18] the York DCA, which is an office within the York County Court of Common Pleas. (See Doc. 9 P 9; Doc. 10 at 1). More specifically, Galvani seeks to hold the York DCA liable for what she considers the adverse interim custody order that resulted from the conciliation on January 8, 2008. She argues that "the court proceedings [were] motivated by bad faith, and deliberate and selective application and/or omission of State law." (Doc. 6 P 3.) HN13[ ] Under the Pennsylvania Constitution, all Pennsylvania courts are part of a unified judicial system governed pursuant to the general supervisory and administrative authority vested in the Pennsylvania Supreme Court. See PA. CONST. art. V, §§ 1, 2, 10; see also Callahan v. City of Phila., 207 F.3d 668, 672 (3d Cir. 2000); Ludwig v. Berks County, Civ. A. No. 07- 2127, 2007 U.S. Dist. LEXIS 63214, 2007 WL 2463306, at *2 (E.D. Pa. Aug. 28, 2007). As part of the unified judicial system, each of the Pennsylvania lower courts and its agencies are arms of the "'Commonwealth government' and thus are state rather than local agencies." Callahan, 207 F.3d at 672. Because it is an integral administrative office within the York County Court of Common Pleas, the York DCA is a state agency within [*19] the unified judicial system. Hence, it is immune from suit under the Eleventh Amendment principles described above. See Benn v. First Judicial Dist., 426 F.3d 233, 240-41 (3d Cir. 2005) (holding that HN14[ ] when an arm of the unified judicial system is sued, the Commonwealth is the real party in interest). Galvani's claims against the York DCA will be dismissed and leave to amend will be denied. See Grayson, 293 F.3d at 108 (observing that the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile). B. Steven M. Carr HN15[ ] Certain individuals fulfilling well-established roles within the judicial process are entitled to absolute immunity from § 1983 civil suits. See Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) ("A judicial officer in the performance of his duties has absolute immunity from suit . . . ."); Hughes v. Long, 242 F.3d 121, 125 (3d Cir. 2001). Judges, testifying witnesses, and prosecutors all enjoy absolute judicial immunity. 9 See Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) (discussing judges); Briscoe v. LaHue, 460 U.S. 325, 339-41, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983) (discussing testifying witnesses); Imbler v. Pachtman, 424 U.S. 409, 430, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976) (discussing [*20] prosecutor's immunity for activities "intimately associated with the judicial process"). In the instant matter, Galvani alleges that Carr, who is a court- appointed conciliator in child custody disputes, violated her rights when he authorized the interim custody order granting partial custody to the Williamses. 10 (See Doc. 6.) Galvani's suit charges violations by Carr in both his individual and official capacity. (See Id. P 2.) HN16[ ] The Third Circuit has recognized the inherent sensitivity of child custody proceedings and, relatedly, the special need to protect judicial officers attempting to facilitate these proceedings. See Ernst v. Child & Youth Servs. of Chester County, 108 F.3d 486, 496-97 (3d Cir. 1997) (recognizing the heightened need for absolute immunity for official [*21] responsibilities in child custody proceedings, where aggrieved parents are "likely to be even more resentful of state interference"). Accordingly, judicial immunity has been extended to cover individuals acting as guardian ad litem, social workers involved in the initiation and prosecution of child custody proceedings, and court-appointed doctors and psychiatrists. See Hughes, 242 F.3d at 127-28 (discussing guardian ad litem and court-appointed doctor and psychiatrist immunity); Ernst, 108 F.3d at 495-97 (discussing social worker immunity). In the context of child custody proceedings, each of these 9 The precise scope of immunity for judges, testifying witnesses, and prosecutors is subject to role-specific exceptions that are not important here. 10 In addition to her ambiguous claim that Carr "seized" her children, Galvani complains that, after the January 8, 2008 conciliation, Carr made no recommendations for investigation or evaluation, and did not recommend an expedited custody hearing. (See Doc. 12 PP 82-83.) 2008 U.S. Dist. LEXIS 89150, *17 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 86 of 139 Page 10 of 12 judicial actors is court-appointed, bearing the responsibility of gathering information from the parties involved and reporting that information to the court via professional recommendations. See Hughes, 242 F.3d at 126-28; Ernst, 108 F.3d at 496-97; see also McArdle v. Tronetti, 961 F.2d 1083, 1085 (3d Cir. 1992) (discussing immunity for court-appointed psychiatrists when producing a diagnosis at the court's request); Gardner v. Parson, 874 F.2d 131, 146 (3d Cir. 1989) (explaining the rationale for guardian ad litem immunity). Absolute immunity for these individuals is necessary so that [*22] they can properly perform their responsibilities without fear of litigious reprisal. The court finds that Carr is entitled to absolute immunity with respect to his court-appointed duties. HN17[ ] A conciliator is a court-appointed mediator, attempting to fashion a custody order amenable to all parties prior to a full custody hearing. In this fashion, the conciliator serves as an "arm of the court," akin to the guardian ad litem or court-appointed social workers. 11 The conciliator is an integral part of the judicial system, see McArdle, 961 F.2d at 1085 (noting that the determinative question is whether the officers were "functioning as integral parts of the judicial system"), and is tasked with gathering information from the parties in order to exercise an independent judgment, to fairly mediate the parties' claims, and to make recommendations to the presiding judge. Exposing the conciliator to liability would greatly hinder the appropriate exercise of the conciliator's duties and, in all likelihood, render the court-appointed mediation toothless. 12 Accordingly, the court finds Carr immune from Galvani's individual capacity claims. 11 The conciliator's role is especially similar to the role [*23] of court-appointed child psychologists, granted absolute immunity in Hughes v. Long, 242 F.3d 121, 126-28 (3d Cir. 2001). Like the psychologist, the conciliator does not initiate the custody proceedings, and his or her role is limited to making recommendations to the court. In the instant matter, although Carr mediated the conciliation, it was York County Court of Common Pleas judge Maria Musti Cook who issued the interim custody order pursuant to his recommendations. 12 Although the Third Circuit has not directly opined on the issue of absolute immunity for child custody conciliators, the Ninth Circuit has recognized such immunity for family court counselors employed by the court. See Meyers v. Contra Costa County Dep't of Soc. Servs., 812 F.2d 1154, 1159 (9th Cir. 1987). Of course, Meyers is not binding upon this court, but its logic is persuasive. With respect to Galvani's official capacity claims against Carr, those allegations are barred by the Eleventh Amendment. As the Supreme Court has held, HN18[ ] "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit [*24] against the State itself." Will, 491 U.S. at 71 (internal citations omitted). For the reasons described above, civil suits against the Commonwealth are barred by principles of sovereign immunity. The court finds that Galvani's claims against Carr both in his official and individual capacity must be dismissed. Leave to amend will be denied as futile. See Grayson, 293 F.3d at 108 (observing that the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile). C. George Swartz Galvani claims that Swartz, in both his official and individual capacity, participated in the alleged federal and state constitutional violations by failing to cite relevant constitutional law, by failing to follow state regulations for child abuse and neglect, and by failing to protect Galvani's minor children. (See Doc. 24 PP 9-13.) At all times relevant to this cause of action, Swartz served as Galvani's personal attorney. It is undisputed that Swartz is privately employed and was privately retained by Galvani to represent her in the child custody dispute. (See Doc. 6 P 5; Doc. 14 at 1.) HN19[ ] The threshold inquiry in a § 1983 cause of action is whether the individual [*25] in question acted under "color of state law." See § 1983. This "state action" requirement restricts liability to those instances in which the defendant may fairly be characterized as a state actor. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982); see also Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). Although Galvani cursorily alleges that Swartz acted under color of state law, (see Doc. 6 P 5), this allegation misapplies the correct meaning of that phrase. As her privately retained attorney, Swartz was clearly not acting on behalf of the state. Rather, his role in this case was that of an advocate for Galvani's position. Whether Swartz's representation met Gavlani's expectations is simply not a question that the federal courts are entitled to decide under § 1983. Given this fact, Galvani's § 1983 must be dismissed. HN20[ ] Allegations under § 1985(3) need not necessarily arise from state action. See United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 2008 U.S. Dist. LEXIS 89150, *21 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 87 of 139 Page 11 of 12 832-34, 103 S. Ct. 3352, 77 L. Ed. 2d 1049 (1983); Griffin, 403 U.S. at 97-102. Purely private conspiracies to deprive an individual of the equal protection of the laws are cognizable in federal court so long as a plaintiff pleads the [*26] elements necessary to establish unlawful conspiratorial conduct. See Farber, 440 F.3d at 134 (describing the four necessary elements). In the instant matter, Galvani fails to satisfy this pleading requirement. Instead, her allegations catalogue Swartz's individual failings: failure to cite proper case law, failure to protect her minor children from "seizure," failure to follow state custody regulations, and failure to protect Galvani's personal liberties. 13 (See Doc. 24 PP 9-13.) To the extent Galvani complains about Swartz's individual actions, her claims are not cognizable under § 1985(3) and must be dismissed. 14 In addition to her federal claims, Galvani asks the court to assume supplemental jurisdiction with respect to those allegations arising from alleged violations of state constitutional law and state tort law. HN21[ ] The supplemental jurisdiction statute provides that in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. 28 U.S.C. § 1367(a). Given that the court has dismissed Galvani's federal constitutional claims, the federal character of her case against Swartz is nonexistent. Although the HN22[ ] district court retains the discretion to resolve disputes when only state law claims remain, see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988); Annulli v. Panikkar, 200 F.3d 189, 202 (3d Cir. 1999), 13 Galvani does assert that "Swartz, in concert with other defendants [sic] denied Plaintiff's due process of the LAW." (Doc. 24 P 11.) This blanket statement hardly provides the specificity required by the pleading standard set forth in Twombly, see Twombly, 544 U.S. 555, 127 S. Ct. at 1964-65 (requiring that a complaint contain enough factual matter to place the defendant on notice of the claim asserted), and in Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (requiring that a complaint contain enough factual detail to provide adequate notice of the [*27] underlying claim). 14 By virtue of her failure to state a cognizable § 1985(3) claim, Galvani's claims arising under § 1986 must also fail. See Robison, 848 F.2d at 431 n.10. the court finds that Swartz's alleged violations [*28] of state law are more properly determined in a state tribunal. 15 Thus, Galvani's state law claims will be dismissed without prejudice. In sum, the court finds that Galvani has failed to state a claim for relief against Swartz. Therefore, Galvani's claim will be dismissed and leave to amend will be denied as futile. See Grayson, 293 F.3d at 108 (observing that the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile). D. [*29] The Williamses Galvani claims that the Williamses "falsely abus[ed] the Family Court process," thereby causing Galvani "emotional injury" and "willfully interfering with the care of [A.W. and E.J.] without just cause." (Doc. 6 P 4.) Although the precise contours of these claims are left unclear by Galvani's complaint, it appears that the intended allegations are in the nature of state law torts, including invasion of privacy, false imprisonment, and intentional infliction of emotional distress. (See Id. PP 59-66, 75-79.) Galvani requests that the court assume supplemental jurisdiction over these state law claims, asserting that her alleged injuries are closely linked to the January 8, 2008 custody hearing at the center of this case. As stated above, the exercise of supplemental jurisdiction is discretionary. See Carnegie-Mellon Univ., 484 U.S. at 350. With respect to the Williamses, only state law claims are raised and, by virtue of the court's reasoning with respect to each of the other named defendants, all of Galvani's federal claims have been dismissed. Of course, a district court may retain jurisdiction over a cause of action when only state law claims remain. See Id.; Annulli, 200 F.3d at 202. [*30] However, HN23[ ] "in the usual case in which all 15 Specifically, given that Galvani's remaining state law claims will require the interpretation of the Pennsylvania Constitution, as well as the application of state tort law, principles of judicial economy weigh heavily in favor of litigating the matter in state court. Additionally, because this matter is in the early pleading stages and discovery has not yet progressed, it will not inconvenience the parties to pursue the state law claims in state court. See Osborn v. Haley, 549 U.S. 225, 127 S. Ct. 881, 896, 166 L. Ed. 2d 819 (2007) (holding that a district court should weigh considerations of judicial economy, convenience, and fairness to the litigants when all federal claims are dismissed and only state law claims remain). 2008 U.S. Dist. LEXIS 89150, *25 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 88 of 139 Page 12 of 12 federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine--judicial economy, convenience, fairness, and comity--will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ., 484 U.S. at 350 n.7. The court finds that given the dismissal of each of Galvani's federal claims, the balance of factors weighs in favor of dismissing the state law claims against the Williamses. 16 To the extent that Galvani wishes to pursue her cause of action against the Williamses, a state forum is much more appropriate. 17 As a result, the court will dismiss without prejudice Galvani's claims with respect to the Williamses. IV. Conclusion For the foregoing reasons, the court will grant defendants' motions to dismiss (Docs. 7, 9, 13, 21). An appropriate order will issue. 16 The court's reasoning on this point is in accord with that stated above. See supra note 15 and accompanying text. 17 Although the dismissal of Galvani's state law tort claims derives from the court's refusal to exercise supplemental jurisdiction, Younger abstention principles also favor disposition of this matter in state court. See Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). Younger abstention is appropriate when "(1) there are ongoing [*31] state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claim." Matusow v. Trans-County Title Agency, LLC, 545 F.3d 241, 2008 U.S. App. LEXIS 21584, 2008 WL 4590683, at *6 (3d Cir. 2008) (quoting Marran v. Marran, 376 F.3d 143, 154 (3d Cir. 2004)). The allegations Galvani lodges against the Williamses ostensibly sound in tort. However, her claims, which allege "injuries" arising from the interim custody order of January 8, 2008, are nothing more than a transparent attempt to circumvent the proceedings of the York County Court of Common Pleas Family Division. According to her allegations in the record, the "injuries" Galvani claims to have suffered are no different than the "injuries" any parent would suffer by virtue of an adverse custody decision. There are sound reasons guiding Pennsylvania's policy allowing interested parties to challenge parental custody and it is up to the Family Division to apply these policies in individual circumstances. Displeasure with the Family Division, without more, simply does not supply the aggrieved with a one-way ticket to federal court. [*32] To the extent that Galvani objects to the conclusions of the Family Division, the state appellate courts are capable of adjudicating those objections. /s/ Christopher C. Conner CHRISTOPHER C. CONNER United States District Judge Dated: November 4, 2008 ORDER AND NOW, this 4th day of November, 2008, upon consideration of the defendants' motions to dismiss (Docs. 7, 9, 13, 21) plaintiff's complaint (Doc. 6), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that: 1. The motion to dismiss (Doc. 7) is GRANTED. All claims against the Commonwealth of Pennsylvania are DISMISSED. 2. The motion to dismiss (Doc. 9) is GRANTED. All claims against the District Court Administration for York County and Steven M. Carr, Esquire, are DISMISSED. 3. The motion to dismiss (Doc. 13) is GRANTED. All claims against George Swartz, Esquire, are DISMISSED. 4. The motion to dismiss (Doc. 21) is GRANTED. All claims against Charles and Nancy Williams are DISMISSED. 5. The Clerk of the Court is directed to CLOSE this case. /s/ Christopher C. Conner CHRISTOPHER [*33] C. CONNER United States District Judge End of Document 2008 U.S. Dist. LEXIS 89150, *30 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 89 of 139 Positive As of: May 17, 2017 5:41 PM Z Dunlap v. Boeing Helicopter Div. United States District Court for the Eastern District of Pennsylvania February 23, 2005, Decided No. 03-CV-2111 Reporter 2005 U.S. Dist. LEXIS 2781 *; 95 Fair Empl. Prac. Cas. (BNA) 1410; 16 Am. Disabilities Cas. (BNA) 978 WILLIE H. DUNLAP, Plaintiff, v. BOEING HELICOPTER DIVISION, PRODUCT SUPPORT DEPARTMENT, Defendant. Disposition: Defendant's motion for summary judgment granted in part and denied in part. Case Summary Procedural Posture Plaintiff former employee sued defendant former employer for race discrimination, retaliation, sexual harassment, and disability discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.S. § 2000e et seq., the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.S. § 12101 et seq., the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., and common law. The employer moved for summary judgment. Overview The employee, an African-American man, who drafted technical manuals, used hearing aids. A coworker was fired after the employee complained about his racial slurs. A senior employee made jokes accusing the employee of being homosexual. The employee was fired after he returned from an approved leave. The court denied the motion in part. The Title VII and ADA claims were not time-barred. The employee's racial discrimination and retaliatory discharge claims survived summary judgment. The employee established prima facie cases of both claims, showing that he was not terminated for poor work performance, but due to racial discrimination and in retaliation for his complaints. However, the employee's disability discrimination claims failed because he was not disabled. The employee's sexual harassment claims failed because he did not exhaust his administrative remedies. The employee did not establish a prima facie hostile work environment claim. He could not show that the employer had actual or constructive notice of the hostile work environment. Further, the employer terminated the coworker who made the derogatory statements. The employee also failed to state a wrongful termination claim. Outcome The court granted summary judgment as to the employee's federal and state law hostile work environment, sex, and disability discrimination claims. The court also granted summary judgment as to the employee's common law wrongful termination claim. The court denied summary judgment as to the employee's federal and state law claims of retaliation and race discrimination. LexisNexis® Headnotes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts Civil Procedure > ... > Summary Judgment > Supporting Materials > General Overview HN1[ ] Summary judgment shall be awarded if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue as to any material fact exists if the evidence is such that a reasonable jury could return a verdict for the Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 90 of 139 Page 2 of 11 nonmoving party. Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts HN2[ ] A party seeking summary judgment bears the initial responsibility of identifying the basis for its motion, along with evidence clearly demonstrating the absence of a genuine issue of material fact. Once the moving party has satisfied this requirement, Fed. R. Civ. P. 56(e) requires the nonmoving party to supply sufficient evidence, not mere allegations, for a reasonable jury to find in the nonmovant's favor. This evidence must be viewed in the light most favorable to the nonmoving party. Civil Procedure > ... > Pleadings > Time Limitations > General Overview Business & Corporate Compliance > ... > Protection of Rights > Federally Assisted Programs > Civil Rights Act of 1964 Civil Rights Law > Protection of Rights > Procedural Matters > Statute of Limitations Governments > Legislation > Statute of Limitations > General Overview Governments > Legislation > Statute of Limitations > Time Limitations Labor & Employment Law > ... > US Equal Employment Opportunity Commission > Civil Actions > General Overview HN3[ ] Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., requires plaintiffs to file discrimination complaints within 90 days of receiving a right-to-sue letter from the Equal Employment Opportunity Commission. This 90-day statute of limitations period begins when the plaintiff or plaintiff's counsel receives the right-to-sue letter, whichever is earlier. Civil Procedure > ... > Pleadings > Time Limitations > General Overview Business & Corporate Compliance > ... > Protection of Rights > Federally Assisted Programs > Civil Rights Act of 1964 Governments > Legislation > Statute of Limitations > General Overview Governments > Legislation > Statute of Limitations > Time Limitations Labor & Employment Law > ... > US Equal Employment Opportunity Commission > Civil Actions > General Overview HN4[ ] The United States Court of Appeals for the Third Circuit makes clear that Fed. R. Civ. P. 6(e) is inapplicable and that the 90-day statute of limitations period begins to run upon actual receipt of a right to sue letter from the Equal Employment Opportunity Commission. Civil Procedure > ... > Pleadings > Time Limitations > General Overview HN5[ ] See Fed. R. Civ. P. 6(e). Business & Corporate Compliance > ... > Protection of Rights > Federally Assisted Programs > Civil Rights Act of 1964 Labor & Employment Law > ... > Racial Discrimination > Employment Practices > Discharges Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview HN6[ ] To establish a prima facie case of discriminatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., a plaintiff must establish: (1) that he is a member of a protected class; (2) that he was qualified for the position, (3) that he was discharged, and (4) that others not in the protected class were treated more favorably. Business & Corporate Compliance > ... > Protection of Rights > Federally Assisted Programs > Civil Rights Act of 1964 Labor & Employment Law > Discrimination > Actionable Discrimination 2005 U.S. Dist. LEXIS 2781, *2781 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 91 of 139 Page 3 of 11 Labor & Employment Law > ... > Employment Practices > Adverse Employment Actions > Discharges & Failures to Hire Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview HN7[ ] Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., discrimination analysis is identical. Administrative Law > Judicial Review > Reviewability > Exhaustion of Remedies Civil Rights Law > Regulators > Civil Rights Commissions > Complaints Labor & Employment Law > ... > Retaliation > Remedies > General Overview Labor & Employment Law > ... > Civil Actions > Exhaustion of Remedies > General Overview HN8[ ] Under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., discrimination claims must be filed with the Equal Employment Opportunity Commission or the Pennsylvania Human Relations Commission prior to being filed in court. Labor & Employment Law > Discrimination > Actionable Discrimination Labor & Employment Law > Discrimination > Retaliation > General Overview Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview HN9[ ] In order to make out a prima facie retaliatory discharge claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., plaintiff must demonstrate: (1) that he was engaged in a protected activity; (2) that he was discharged subsequent to or contemporaneously with such activity; and (3) that a casual link exists between the protected activity and the discharge. The casual connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action. Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Labor & Employment Law > Discrimination > Actionable Discrimination Labor & Employment Law > ... > Evidence > Burdens of Proof > Burden Shifting Labor & Employment Law > Wrongful Termination > Defenses > Employee Misconduct HN10[ ] To obtain summary judgment, an employer has to demonstrate that an employee could not raise an issue of fact as to whether the employer's proffered explanation of poor performance was pretextual. Business & Corporate Compliance > ... > Protection of Rights > Federally Assisted Programs > Civil Rights Act of 1964 Labor & Employment Law > Discrimination > Retaliation > General Overview Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview HN11[ ] To make out a retaliation claim, a plaintiff does not have to prove the merits of his discrimination case. Plaintiff only has to prove that he complained to management about what he believed constituted discriminatory practices. A good faith complaint of discrimination, regardless of the merits, is protected conduct under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Scope Labor & Employment Law > Discrimination > General Overview Labor & Employment Law > Discrimination > Disability Discrimination > General Overview Labor & Employment Law > ... > Disability Discrimination > Scope & Definitions > General Overview Business & Corporate Compliance > ... > Discrimination > Disability Discrimination > Federal & State Interrelationships Labor & Employment Law > ... > Evidence > Burdens of Proof > General Overview 2005 U.S. Dist. LEXIS 2781, *2781 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 92 of 139 Page 4 of 11 Labor & Employment Law > ... > Evidence > Burdens of Proof > Employee Burdens of Proof HN12[ ] To make out a prima facie disability discrimination claim under the Americans with Disabilities Act, 42 U.S.C.S. § 12101 et seq., and the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., a plaintiff must prove: (1) that he has a disability; (2) that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he suffered an adverse employment decision because of discrimination. Civil Rights Law > ... > Protection of Disabled Persons > Americans With Disabilities Act > Scope Labor & Employment Law > ... > Disabilities Under ADA > Mental & Physical Impairments > General Overview Labor & Employment Law > ... > Disabilities Under ADA > Mental & Physical Impairments > Major Life Activities Labor & Employment Law > ... > Disability Discrimination > Scope & Definitions > Qualified Individuals With Disabilities Business & Corporate Compliance > ... > Discrimination > Disability Discrimination > Federal & State Interrelationships HN13[ ] The Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12101 et seq., and the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., provide that a person is disabled if he has a physical or mental impairment that substantially limits one or more major life activities, a record of impairment, or is regarded as having an impairment. 42 U.S.C.S. § 12102(2); Pa. Stat. Ann. tit. 43, § 954(p). Not every physical impairment is a disability as contemplated by the law because not every impairment substantially limits a major life activity. The United States Supreme Court has held that under the ADA, corrective and mitigating measures for a person's impairment should be considered to determine if the person is substantially limited in a major life activity and thus disabled under the Act. Administrative Law > Judicial Review > Reviewability > Exhaustion of Remedies Civil Procedure > ... > Justiciability > Exhaustion of Remedies > General Overview Civil Procedure > ... > Justiciability > Exhaustion of Remedies > Administrative Remedies Civil Procedure > ... > Justiciability > Exhaustion of Remedies > Failure to Exhaust Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Rights Law > ... > Procedural Matters > Federal Versus State Law > Exhaustion Doctrine Labor & Employment Law > ... > Sexual Harassment > Defenses > General Overview Labor & Employment Law > ... > Civil Actions > Exhaustion of Remedies > General Overview HN14[ ] Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., provide that a plaintiff must exhaust his administrative remedies before bringing a civil action. Where a plaintiff fails to assert a claim for sexual harassment in his administrative charge, and there is no evidence of an agency investigation of a sexual harassment charge, he has failed to exhaust, and summary judgment is required. Labor & Employment Law > ... > Harassment > Racial Harassment > Hostile Work Environment Labor & Employment Law > Discrimination > Racial Discrimination > Scope & Definitions Business & Corporate Compliance > ... > Discrimination > Racial Discrimination > Federal & State Interrelationships Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview HN15[ ] In order to make out a prima facie hostile work environment claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., a plaintiff must demonstrate: (1) that he suffered intentional discrimination because of his race; (2) that the discrimination was pervasive or regular; (3) that the discrimination detrimentally affected him; (4) that the discrimination would detrimentally affect a reasonable person of the same race in the same position; and (5) the existence of respondeat superior liability. 2005 U.S. Dist. LEXIS 2781, *2781 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 93 of 139 Page 5 of 11 Business & Corporate Law > ... > Duties & Liabilities > Knowledge & Notice > General Overview Business & Corporate Law > ... > Duties & Liabilities > Negligent Acts of Agents > General Overview Labor & Employment Law > ... > Harassment > Racial Harassment > Defenses Labor & Employment Law > ... > Racial Harassment > Employer Liability > General Overview Labor & Employment Law > ... > Racial Harassment > Employer Liability > Harassment by Coworkers Labor & Employment Law > ... > Racial Harassment > Employer Liability > Harassment by Supervisors Labor & Employment Law > ... > Racial Harassment > Employment Practices > General Overview Labor & Employment Law > ... > Harassment > Racial Harassment > Hostile Work Environment Labor & Employment Law > Discrimination > Racial Discrimination > Scope & Definitions HN16[ ] The United States Court of Appeals for the Third Circuit has held that an employer is liable for an employee's behavior under a negligence theory of agency if a plaintiff proves that management-level employees had actual or constructive knowledge of the hostile work environment and failed to take remedial action. Business & Corporate Law > ... > Establishment > Elements > General Overview HN17[ ] Senior employees who direct junior employees but do not have the power to set work schedules, rate of pay or assignments, or take part in an employee's hiring or firing cannot impute liability. For the knowledge of a supervisor to be imputed to the company, that supervisor must be at a sufficiently high level in the hierarchy of the company. Business & Corporate Compliance > ... > Protection of Rights > Federally Assisted Programs > Civil Rights Act of 1964 Labor & Employment Law > ... > Harassment > Racial Harassment > Defenses Labor & Employment Law > ... > Racial Harassment > Employer Liability > General Overview Labor & Employment Law > ... > Racial Harassment > Employment Practices > General Overview Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview HN18[ ] When an employer's response stops harassment, there cannot be Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., liability. An employer, in order to avoid liability for the discriminatory conduct of an employee, does not have to necessarily discipline or terminate the offending employee as long as the employer takes corrective action reasonably likely to prevent the offending conduct from reoccurring." Governments > Legislation > Statutory Remedies & Rights Labor & Employment Law > Discrimination > General Overview Labor & Employment Law > Discrimination > Actionable Discrimination Labor & Employment Law > Employment Relationships > At Will Employment > General Overview Labor & Employment Law > ... > At Will Employment > Exceptions > General Overview Labor & Employment Law > Wrongful Termination > General Overview Labor & Employment Law > Wrongful Termination > Remedies > General Overview HN19[ ] Pennsylvania does not recognize a common law cause of action for termination of an at-will employment relationship. Under Pennsylvania law, the statutory remedy provided by the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., precludes assertion of a common law tort action for wrongful discharge based upon discrimination. Exceptions to this rule are available in very limited circumstances, such as discharging an employee for serving on a jury. Counsel: [*1] WILLIE H. DUNLAP, Plaintiff, Pro se, Lithonia, GA. For WILLIE H. DUNLAP, Plaintiff: OLUGBENGA O. ABIONA, PHILADELPHIA, PA. For BOEING HELICOPTER DIVISION, PRODUCT SUPPORT DEPARTMENT: M. FRANCES RYAN, DECHERT, PHILADELPHIA, PA. MELISSA BERGMAN SQUIRE, DECHERT PRICE & RHOADS, PHILADELPHIA, PA. Judges: CLIFFORD SCOTT GREEN. 2005 U.S. Dist. LEXIS 2781, *2781 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 94 of 139 Page 6 of 11 Opinion by: CLIFFORD SCOTT GREEN Opinion MEMORANDUM Green, S.J. February 23, 2005 Presently before the court is Defendant's Motion for Summary Judgment and the responses thereto. For the reasons set forth below, Defendant's Motion for Summary Judgment will be granted in part and denied in part. I. FACTUAL AND PROCEDURAL BACKGROUND Willie H. Dunlap ("Plaintiff" or "Dunlap"), an African- American man, brought this action against his former employer, Boeing Helicopter Division ("Defendant" or "Boeing"). Plaintiff is suing Defendant for federal claims of race discrimination, racial harassment, retaliation, and sexual harassment under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.S. § 2000e et seq.; and disability discrimination and failure to accommodate under the Americans with Disabilities Act of 1990 [*2] ("ADA"), 42 U.S.C. § 12101 et seq. He also brings state claims of retaliation and race, sex, and disability discrimination under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Con. Stat. § 951 et seq., and wrongful termination under Pennsylvania common law. Boeing hired Dunlap in the Fall of 2000 as it prepared to deliver helicopters to the Greek Army. Plaintiff began working there as a contract technical writer on September 29, 2000. Defendant retained Dunlap for its Technical Publications Department through Judge.com, a contract staffing firm. His duties included drafting technical manuals for the Greek Army project and other matters. Kimpton Hemsarth ("Hemsarth") was a manager at this department and the person responsible for hiring Plaintiff. When Dunlap was hired, Hemsarth told him that although he had been hired to work on the Greek Army project, he would be assigned to work on a U.S. Army project until the Greek Army project got underway. In late-November or early-December 2000, Plaintiff and the other technical writers reporting to Hemsarth began working on the Greek Army project. Hemsarth assigned Plaintiff to work on the instrumentation [*3] chapter of the maintenance and trouble shooting technical manuals. Plaintiff referred Ronald Crocker ("Crocker") for a job at Boeing. On November 13, 2000, Crocker began working in his department as a contract technical writer. Due to a space shortage, Plaintiff and Crocker shared a cubicle. Dunlap claims that throughout his time at Boeing, Crocker used racial slurs about blacks to him individually and in front of Mark Dutton ("Dutton"), a lead technical writer. On January 4, 2001, Hemsarth fired Crocker. Hemsarth stated that his reason for firing Crocker was because Dutton informed him that Crocker had made derogatory remarks about African-Americans and Jews. Plaintiff claims that Crocker was actually fired because he had insulted Dutton's family that day. Plaintiff further contends that he complained to Hemsarth that it was unfair for Crocker to be fired for making inappropriate statements about Dutton's family but not for continually making racial slurs to Plaintiff. Plaintiff alleges that Hemsarth became upset upon hearing Plaintiff's complaint. Plaintiff wears hearing aids in both ears. In the Fall of 2000, Plaintiff requested a telephone volume amplifier from Defendant because [*4] he was experiencing difficulty using the office telephone. Loraine Bridgeford ("Bridgeford"), an administrative assistant assigned to the Technical Publications Department ordered an amplification device. About a week later, Bridgeford presented the device to Plaintiff. Plaintiff, however, rejected it. Dunlap claims that he rejected the device because it was not hearing aid compatible. Defendant claims that Plaintiff stated that he no longer needed the amplifier. Plaintiff stated in his deposition that he could generally use the telephone effectively by simply asking the person with whom he was speaking to talk a little louder. Plaintiff also alleges that throughout his time at Boeing, Mark Dutton and Kimpton Hemsarth made jokes about Crocker and Plaintiff being a gay couple. Plaintiff is a heterosexual. In mid-January 2001, Plaintiff notified Hemsarth that he planned to take off January 20, 2001 through January 23, 2001. Hemsarth subsequently approved this leave based on Plaintiff's need. Plaintiff spent this time vacationing. When Plaintiff returned to work on January 24, 2001, Hemsarth fired him. Hemsarth claims that Plaintiff was fired for poor work performance and for lying [*5] about the reason for his leave. Plaintiff denies this and alleges that he was fired because of racial discrimination, retaliation, sexual harassment, and 2005 U.S. Dist. LEXIS 2781, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 95 of 139 Page 7 of 11 disability discrimination. On April 22, 2003, Plaintiff filed a complaint against Boeing for: 1) Title VII-race discrimination and racial harassment; 2) Title VII-sexual harassment; 3) Title VII- retaliation; 4) ADA-disability discrimination and failure to accommodate; 5) Wrongful termination of employment contract under Pennsylvania common law; and 6) PHRA retaliation and sex, race, and disability discrimination. II. LEGAL STANDARD HN1[ ] Summary judgment shall be awarded "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A genuine issue as to any material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). [*6] HN2[ ] A party seeking summary judgment bears the initial responsibility of identifying the basis for its motion, along with evidence clearly demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Once the moving party has satisfied this requirement, Rule 56(e) of the Federal Rules of Civil Procedure requires the nonmoving party to supply sufficient evidence, not mere allegations, for a reasonable jury to find in the nonmovant's favor. See Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). This evidence must be viewed in the light most favorable to the nonmoving party. See Anderson, 477 U.S. at 256. III DISCUSSION In the instant matter, Defendant moves for summary judgment, arguing that: 1) Plaintiff's Title VII and ADA claims are barred by statute of limitations; 2) Plaintiff cannot demonstrate that race was a motivating factor in his termination; 3) Plaintiff's retaliation claims fail because he did not exhaust his remedies; 4) Plaintiff cannot establish a prima facie [*7] case of retaliation; 5) Plaintiff is not disabled within the meaning of the ADA or the PHRA; 6) Plaintiff's sexual harassment claim is not cognizable under Title VII or the PHRA; 7) Plaintiff cannot establish a prima facie case of racial harassment; and 8) Plaintiff cannot establish a claim for wrongful termination. A. Plaintiff's Title VII and ADA Claims Are Not Barred By Statute of Limitations Defendant's contention that Plaintiff's Title VII and ADA claims are time-barred is incorrect. HN3[ ] Title VII of the Civil Rights Act of 1964 requires plaintiffs to file discrimination complaints within ninety days of receiving a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"). See Mosel v. Hills Dep't Store, Inc., 789 F.2d 251, 252 (3d Cir. 1986). This ninety-day statute of limitations period begins when the plaintiff or plaintiff's counsel receives the right-to-sue letter, whichever is earlier. See Seitzinger v. The Reading Hospital and Medical Center, 165 F.3d 236, 239-40 (3d Cir. 1999). Dunlap contends that he received his right-to-sue letter on January 2, 2003. Plaintiff stated this January 2, 2003 receipt date in his Complaint [*8] and his Declaration attached to his response brief. He also testified in his deposition that he kept a record of the day that he received his right-to-sue letter and that he used this day in his Complaint. The EEOC right-to-sue letter is dated December 23, 2002, ten days before Plaintiff claims to have received the letter. Plaintiff's counsel postulates that this ten-day delay could have been caused by the 2002 holiday season and the fact that December 25th, 28th, 29th 2002 and January 1, 2003 were non-mail days. Defendant argues to this Court that the date of receipt was not more than 3 days after mailing for the purpose of deciding this motion. Defendant cites Federal Rule of Civil Procedure 6(e) for this contention. 1 However, HN4[ ] the Third Circuit makes clear that Rule 6(e) is inapplicable and that the ninety-day statute of limitations period begins to run upon actual receipt. See Mosel, 789 F.2d at 253 (holding that Rule 6(e) was inapplicable to determining the actual receipt date of a EEOC right- to-sue letter). In the instant matter, Plaintiff has provided sufficient evidence to demonstrate that he received his right-to-sue [*9] letter on January 2, 2003. In any event, the date of receipt is a disputed fact and therefore 1 Fed. R. Civ. P. Rule 6(e) provides that HN5[ ] "whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days shall be added to the prescribed period." 2005 U.S. Dist. LEXIS 2781, *5 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 96 of 139 Page 8 of 11 cannot be a basis for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). B. Plaintiff's Racial Discrimination Claims Survive Summary Judgment Plaintiff has made out Title VII and PHRA racial discrimination claims. HN6[ ] To establish a prima facie case of discriminatory discharge under Title VII, a plaintiff must establish: (1) that he is a member of a protected class; (2) that he was qualified for the position, (3) that he was discharged, and (4) that others not in the protected [*10] class were treated more favorably. See Garcia v. Matthews, 66 Fed. Appx. 339, 2003 U.S. App. LEXIS 7967, at *9 (3d Cir. April 10, 2003); Williams v. Seven Seventeen HB Philadelphia Corp., 51 F. Supp. 2d 637, 641 (E.D.Pa. 1999); see also Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 317 (3d Cir. 2000) HN7[ ] (Title VII and PHRA discrimination analysis is identical). Plaintiff satisfies all four prongs. First, he is an African-American and therefore a member of a protected class under Title VII. Second, Plaintiff's twenty-five years of experience in the technical publication field is sufficient evidence that he is qualified. Third, it is undisputed that Plaintiff was fired. For the fourth prong, disparate treatment, Plaintiff contends that his non-African American co-workers were treated more favorably because: (1) he was forced to share a cubicle with Crocker and (2) Plaintiff had to suffer through Crocker's continual racial harassment. It is undisputed that Plaintiff had to share his cubicle and office equipment with Crocker. Defendant states that this sharing was necessary due to a shortage of office workspace. Plaintiff, however, [*11] has provided evidence through his affidavit that he was made to share his cubicle and office equipment even after other cubicles became free. Furthermore, although Hemsarth contends that Plaintiff was fired because his work performance was poor, Plaintiff has provided evidence from a co-worker that Plaintiff's work was well-regarded. Viewing the evidence in the light most favorable to the nonmoving party, Plaintiff has established that his work conditions were different. The inference as to whether this was due to racial discrimination should be determined by a factfinder. Accordingly, Plaintiff's racial discrimination claims survive summary judgment. C. Plaintiff Properly Exhausted His Administrative Remedies With Respect To His Retaliation Claims Defendant contends that Plaintiff's retaliation claims fail as a matter of law because he did not exhaust his administrative remedies with either the EEOC or the Pennsylvania Human Relations Commission ("PHRC") prior to filing suit. HN8[ ] Under Title VII and the PHRA, discrimination claims must be filed with the EEOC or the PHRC prior to being filed in court. See Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 469-71 (3d Cir. 2001). [*12] Although Plaintiff did not allege retaliation in his initial complaint to the PHRC, Plaintiff clearly alleges retaliation in his June 26, 2001 and June 28, 2001 letters to the PHRC. In his June 26, 2001 letter, Plaintiff specifically states "please amend my complaint to include and/or retaliation…." In his June 28 letter, Plaintiff describes Boeing's alleged retaliatory activities. Plaintiff therefore filed his retaliation claims with the PHRC prior to filing them with this Court. Accordingly, Plaintiff has provided sufficient evidence that he exhausted his remedies at the administrative level. To survive summary judgment, however, Plaintiff still has to produce some evidence of a prima facie claim of retaliation. D. Plaintiff's Retaliatory Discharge Claims Survive Summary Judgment HN9[ ] In order to make out a prima facie retaliatory discharge claim under Title VII and the PHRA, Plaintiff must demonstrate: (1) that he was engaged in a protected activity; (2) that he was discharged subsequent to or contemporaneously with such activity; and (3) that a causal link exists between the protected activity and the discharge. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). [*13] In his affidavit, Plaintiff stated that Hemsarth became upset after Plaintiff complained to him about not terminating Crocker for his past racial slurs. Hemsarth fired Dunlap shortly thereafter. This evidence satisfies the first two prongs of the retaliation standard. First, Plaintiff was engaged in protected activity, complaining about discriminatory practices. Second, Plaintiff was discharged subsequent to this protected activity. Third, there is evidence from which a factfinder could infer a causal link. Even though such evidence is disputed, this evidence precludes granting of summary judgment. "The causal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (citing Burrus v. United Telephone. Co., 683 F.2d 339, 343 (10th Cir. 1982)). In the instant matter, Plaintiff was fired within three weeks after an alleged complaint to Hemsarth. Accordingly, Plaintiff has satisfied all prongs of the retaliation standard and established a prima facie case of retaliatory discharge. 2005 U.S. Dist. LEXIS 2781, *9 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 97 of 139 Page 9 of 11 The [*14] burden now shifts to Defendant to give a nondiscriminatory reason for discharging Plaintiff. See Jalil, 873 F.2d at 708. Defendant has produced evidence in support of its position that Dunlap was terminated for poor performance. Consequently, Defendant has met its burden of giving a nondiscriminatory reason for discharging Plaintiff. However, HN10[ ] to obtain summary judgment, Defendant has to demonstrate that Dunlap could not raise an issue of fact as to whether Defendant's proffered explanation of poor performance was pretextual. See id. Plaintiff has introduced sufficient evidence to question Defendant's motivation for discharging him, specifically, his complaint of discriminatory practices followed by his termination shortly thereafter. Also, Plaintiff has offered evidence that his work was well-regarded. Therefore, summary judgment on Plaintiff's retaliation claims cannot be granted. HN11[ ] To make out a retaliation claim, Plaintiff does not have to prove the merits of his discrimination case. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996); see also Jalil, 873 F.2d at 709 (affirming summary judgment on discrimination [*15] claim but denying summary judgment on retaliation). Plaintiff only has to prove that he complained to management about what he believed constituted discriminatory practices. See Aman, 85 F.3d at 1085. A good faith complaint of discrimination, regardless of the merits, is protected conduct under Title VII. See id. Viewing the evidence in the light most favorable to Plaintiff, Dunlap demonstrated that he complained to Hemsarth about what he believed to be a discriminatory practice, that he was terminated shortly afterwards, and that a causal link exists. Accordingly, summary judgment cannot be granted on Plaintiff's retaliation claims. E. Plaintiff's Disability Discrimination Claims Fail As A Matter Of Law Plaintiff's disability discrimination claims under the ADA and the PHRA fail as a matter of law. HN12[ ] To make out a prima facie disability discrimination claim under these statutes, a plaintiff must prove: (1) that he has a disability; (2) that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) that he suffered an adverse employment decision because of discrimination. [*16] See Taylor v. Phoenixville School District, 184 F.3d 296, 306 (3d Cir. 1999). Plaintiff does not have a disability within the meaning of the ADA and the PHRA and therefore cannot satisfy the first prong of the disability discrimination standard. Accordingly, Plaintiff's ADA and PHRA disability discrimination claims must fail. HN13[ ] The ADA and the PHRA provide that a person is disabled if he has a physical or mental impairment that substantially limits one or more major life activities, a record of impairment, or is regarded as having an impairment. See 42 U.S.C. § 12102(2); see also 43 P.S. § 954(p). Not every physical impairment is a disability as contemplated by the law because not every impairment substantially limits a major life activity. See Penchishen v. Stroh Brewery Co., 932 F. Supp. 671, 674 (E.D. Pa. 1996) aff'd, 116 F.3d 469 (3d Cir. 1997) cert. denied, 522 U.S. 868, 118 S. Ct. 178, 139 L. Ed. 2d 119 (1997). The Supreme Court has held that under the ADA, corrective and mitigating measures for a person's impairment should be considered to determine if [*17] the person is "substantially limited in a major life activity and thus disabled under the Act." Sutton v. United Airlines, Inc., 527 U.S. 471, 482, 144 L. Ed. 2d 450, 119 S. Ct. 2139 (1999). Here, Plaintiff is not disabled as defined in the ADA and PHRA. First, Dunlap's hearing aids mitigate his impairment so that he is not substantially limited in a major life activity. In their PHRC affidavits, Drs. Heard and Ponkshe, Plaintiff's own doctors, confirm that Plaintiff's corrected hearing does not limit any major life activities. Moreover, although Plaintiff occasionally has problems hearing people on the telephone, he admits in deposition that this problem is corrected if the person speaks a little louder. Plaintiff has neither provided evidence that his hearing difficulty substantially limits a major life activity nor has he produced medical records that he is impaired. Furthermore, Plaintiff has not produce evidence demonstrating that Defendant regarded him as being hearing impaired. Plaintiff has not established any of the prongs of the disability test. Therefore, as a matter of law, summary judgment must be granted against Plaintiff on his ADA and PHRA discrimination claims. Additionally, [*18] Plaintiff's ADA and PHRA failure to accommodate claims must fail because proof of a disability is also required to survive summary judgment. See Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 771 (3d Cir. 2004). F. Plaintiff's Sexual Harassment Claims Fail As A Matter Of Law Plaintiff's sexual harassment claims must be dismissed because he did not exhaust his remedies with the 2005 U.S. Dist. LEXIS 2781, *13 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 98 of 139 Page 10 of 11 EEOC or the PHRC prior to bringing a claim for sexual harassment. HN14[ ] Title VII and the PHRA provide that a plaintiff must exhaust his administrative remedies before bringing a civil action. See Burgh v. Borough Council of Montrose, 251 F.3d 465, 469 (3d Cir. 2001); Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 921 (Pa. 1989) (holding that the intended forum for initially addressing PHRA claims is the PHRC). "The purpose of requiring exhaustion is to afford the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, avoiding unnecessary action in court." Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). Where a plaintiff fails to assert a claim for sexual [*19] harassment in his administrative charge, and there is no evidence of an agency investigation of a sexual harassment charge, he has failed to exhaust, and summary judgment is required. See Antol, 82 F.3d at 1295-1296. In the instant matter, Plaintiff has not provided evidence that he alleged sexual harassment at the agency level. He also has not shown that the EEOC or PHRC investigated the alleged sexual harassment. Therefore, Plaintiff's sexual harassment claims under Title VII and the PHRA will be dismissed for failure to exhaust administrative remedies. G. Plaintiff Has Not Made Out A Hostile Work Environment Claim HN15[ ] In order to make out a prima facie hostile work environment claim under Title VII and the PHRA, Plaintiff must demonstrate: (1) that he suffered intentional discrimination because of his race; (2) that the discrimination was pervasive or regular; (3) that the discrimination detrimentally affected him; (4) that the discrimination would detrimentally affect a reasonable person of the same race in the same position; and (5) the existence of respondeat superior liability. See Knabe v. The Boury Corp., 114 F.3d 407, 410 (3d Cir. 1997). [*20] Viewing the evidence in the light most favorable to the non-moving party, Plaintiff fails to make out a hostile work environment cause of action. Dunlap's racial harassment claims fail because he cannot satisfy the fifth prong of the hostile work environment standard -respondeat superior. In this case, Plaintiff alleges that his co-worker, Crocker, racially harassed him and his lead writer, Dutton, knew about it, thus imputing liability to Boeing. HN16[ ] The Third Circuit has held that "an employer is liable for an employee's behavior under a negligence theory of agency 'if a plaintiff proves that management-level employees had actual or constructive knowledge'" of the hostile work environment and failed to take remedial action. Id. at 411. Here, Plaintiff's racial harassment claims fail because Dutton is not a management-level employee who would impute liability to Boeing and because Defendant took the remedial action of firing the offender. Plaintiff's argument that Dutton was a management- level supervisor is incorrect. Plaintiff has not provided evidence that Dutton was anything more than a senior employee. HN17[ ] Senior employees who direct junior employees but do not have [*21] the power to set work schedules, rate of pay or assignments, or take part in an employee's hiring or firing cannot impute liability. See Jackson v. T & N Van Service, 86 F. Supp. 2d 497, 503 (E.D.Pa. 2000); see also VanZant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715-716 (2d Cir. 1997) ("for the knowledge of a supervisor to be imputed to the company, that supervisor must be at a sufficiently high level in the hierarchy of the company."). Furthermore, Hemsarth's January 4, 2001 firing of Crocker stopped the alleged harassment of Plaintiff and precluded Title VII hostile work environment liability. The case law is clear that HN18[ ] "when an employer's response stops harassment, there cannot be Title VII liability." Kunin v. Sears Roebuck, 175 F.3d 289, 294 (3d Cir. 1999). When Dutton informed Hemsarth of Crocker's derogatory statements, Hemsarth immediately took corrective measures. "An employer, in order to avoid liability for the discriminatory conduct of an employee, does not have to necessarily discipline or terminate the offending employee as long as the employer takes corrective action reasonably likely to prevent the offending conduct [*22] from reoccurring." Knabe, 114 F.3d at 414. In the instant matter, Defendant fired Crocker and prevented Plaintiff's continued harassment. Therefore, his racial harassment claims fail. Accepting that there is evidence of racial statements and that these took place between a fellow employee and Plaintiff's supervisor, there is no evidence of respondeat superior responsibility because upon knowledge of the racially derogatory remarks, the employer terminated the harasser and the hostile remarks ceased. Although the employer may have terminated Crocker for a different reason, nevertheless Defendant did terminate Crocker and the hostile statements stopped. H. Plaintiff's Pennsylvania Wrongful Termination Claim Cannot Survive Summary Judgment 2005 U.S. Dist. LEXIS 2781, *18 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 99 of 139 Page 11 of 11 Plaintiff's Pennsylvania law claim for wrongful termination must fail because he was an at-will employee. As a general rule, HN19[ ] Pennsylvania does not recognize a common law cause of action for termination of an at-will employment relationship. See McLaughlin v. Gastrointestinal Specialities, Inc., 561 Pa. 307, 313-14, 750 A.2d 283 (Pa. 2000). Under Pennsylvania law, the statutory remedy provided by the Pennsylvania [*23] Human Relations Act, 43 Pa. Con. Stat. § 951 et seq., "precludes assertion of a common law tort action for wrongful discharge based upon discrimination." Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917, 918 (Pa. 1989). Exceptions to this rule are available in very limited circumstances, such as discharging an employee for serving on a jury. See id. In the instant case, Plaintiff is already bringing retaliation and race discrimination claims against Defendant under the PHRA. Under the PHRA, he is therefore precluded from bringing a wrongful termination claim under common law. IV. CONCLUSION For these reasons, Defendant's Motion for Summary Judgment will be granted in part and denied in part. Summary judgment will be granted as to Plaintiff's Title VII and PHRA hostile work environment, sex and disability discrimination claims. Also, summary judgment will be granted as to Plaintiff's wrongful termination claim under Pennsylvania common law. Plaintiff's Title VII and PHRA claims for retaliation and race discrimination, however, stand and summary judgment as to these claims will be denied. BY THE COURT: S/ CLIFFORD SCOTT GREEN [*24] ORDER AND NOW, this 23rd day of February 2005, upon due consideration, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment will be granted in part and denied in part. Summary judgment will be DENIED on Plaintiff's Title VII and PHRA retaliation and race discrimination claims. Summary judgment will be GRANTED on Plaintiff's Title VII and PHRA hostile work environment, sex and disability discrimination claims. Additionally, summary judgment will be GRANTED on Plaintiff's Pennsylvania common law wrongful termination claim. BY THE COURT: S/ CLIFFORD SCOTT GREEN End of Document 2005 U.S. Dist. LEXIS 2781, *22 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 100 of 139 Cited As of: May 17, 2017 5:41 PM Z Melencheck v. HCR Manor Care United States District Court for the Western District of Pennsylvania March 10, 2009, Decided Civil Action No. 08-966 Reporter 2009 U.S. Dist. LEXIS 74207 * MILDRED R. MELENCHECK, Plaintiff, vs. HCR MANOR CARE, TAMMY WEISS and RAELENE SOCHOR, Defendants. Counsel: [*1] For MILDRED R. MELENCHECK, Plaintiff: Lois E. Glanby, LEAD ATTORNEY, McMurray, PA. For RANDALL MELENCHECK, MINOR CHILDREN MELENCHECK, Plaintiffs: Lois E. Glanby, McMurray, PA. For HCR MANOR CARE, TAMMY WEISS, RAELENE SOCHOR, Defendants: Shannon H. Paliotta, LEAD ATTORNEY, Robert W. Cameron, Littler Mendelson, Pittsburgh, PA; Rachel A. O'Driscoll, Port Authority of Allegheny County, Pittsburgh, PA. Judges: Donetta W. Ambrose, Chief United States District Judge. Opinion by: Donetta W. Ambrose Opinion OPINION AND ORDER Synopsis Plaintiff Mildred R. Melencheck was employed by Defendant HRG Manor Care ("HRG") as a certified nursing assistant. Defendants Tammy Weiss ("Weiss") and Raelene Sochor ("Sochor") were, respectively, Plaintiff's supervisor and team leader. Plaintiff has alleged that Defendants' actions created a sexually and racially hostile work environment, and that Defendants engaged in race discrimination and retaliation, in violation of Plaintiff's civil rights under 42 U.S.C. § 1981. (See Docket No. 1 (the "Complaint").) On October 10, 2008, Plaintiff filed an amended complaint [Docket No. 15] (the "Amended Complaint") adding her husband, Randall Melencheck, and their minor children as plaintiffs. In the Amended [*2] Complaint, Randall Melencheck asserts a claim for loss of consortium and he and his minor children assert a claim for emotional distress. Because Plaintiff failed to comply with both the Federal Rules of Civil Procedure and my case management order [Docket No. 14], and because the claims asserted by Randall Melenchek and his children are legally insufficient, I deny Plaintiff's motion to amend. I. Applicable Standards Federal Rule of Civil Procedure 15(a) provides that a party "may amend its pleading once as a matter of course: (A) before being served with a responsive pleading. . . ." Fed. R. Civ. P. 15(a)(A) (West 2008). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Id. at 15(a)(2). Although leave to amend generally should be freely given, factors that may justify the denial of an amendment include: substantial or undue prejudice to the non-moving party, bad faith or dilatory motive on the part of the movant, undue or unexplained delay, repeated failures to cure the deficiency by amendments previously allowed, or futility of the amendment. See, e.g., [*3] Lorenz v. CSX Corp.., 1 F.3d 1406, 1413-14 (3d Cir. 1993); Gollinger v. Dreyfus Realty Advisors, Inc., 1997 U.S. Dist. LEXIS 13589, 1997 WL 563394, at *2 (E.D. Pa. Sept. 2, 1997). An amendment is futile if the amended complaint would not withstand a motion to dismiss. Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.), cert. denied, 464 U.S. 937, 104 S. Ct. 348, 78 L. Ed. 2d 314 (1983). In assessing futility, the Court applies the same standard of legal sufficiency applied under Rule Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 101 of 139 Page 2 of 3 12(b)(6). In re Burlington Coat Factory, 114 F.3d 1410, 1434 (3d Cir. 1997). In deciding a motion to dismiss under Fed R. Civ. P. 12(b)(6), all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in a light most favorable to the plaintiff. Haspel v. State Farm Mut. Auto. Ins. Co., 241 Fed. Appx. 837, 2007 WL 2030272, at *1 (3d Cir. 2007). Accordingly, leave to amend should be denied on the basis of futility only if it appears beyond a reasonable doubt that the movant can prove no set of facts in support of her claims which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). II. Factual Allegations The details of Plaintiff's allegations are of only limited relevance for purposes of this motion. Succinctly [*4] stated, Plaintiff alleges in her Complaint, and in the identical Count I of the proposed Amended Complaint, that beginning in 2000 and continuing until March 2007, her supervisor, Weiss, and her team leader, Sochor, along with her co-workers, pressured and harassed Plaintiff into having a sexual relationship with a male co- worker. Plaintiff also alleges that, as an Asian woman, she was sexually harassed, verbally and physically, by her male coworkers, and subject to frequent lewd conversations with both male and female co-workers. Plaintiff claims that she did not receive an evaluation and raise because she had resisted the relationship with her male co-worker. Eventually, Plaintiff did engage in a sexual relationship with her male co-worker. As a result of this relationship, Plaintiff caught a sexually transmitted disease, her marital relationship with husband was damaged, she required psychological counseling, became suicidal, and was constructively discharged from her employment with HRC. Based upon these factual allegations, Plaintiff asserts a claim for violation of her civil rights pursuant to 42 U.S.C. § 1981. In Count II of the proposed Amended Complaint, Randall Melencheck [*5] asserts a claim for loss of consortium based on the "wrongful and negligent acts of the Defendants" in Count I of the Complaint. In Count III of the proposed Amended Complaint, Randall Melencheck asserts a claim for emotional distress, as a result of which he lost his job and his retirement and suffered an impairment to his earning capacity. In the same Count, Plaintiff's minor children allege that they suffered emotional distress in witnessing a six-hour standoff between their parents during which Plaintiff had a knife and was threatening to harm herself. III. The Amended Complaint Is Procedurally Improper The Complaint in this action was filed on July 9, 2008. Defendants served their answer on September 2, 2008. On September 8, 2008, I issued a case management order requiring that "[t]he parties shall move to amend the pleadings or add new parties by October 8, 2008." [Docket No. 14; emphasis added.] Federal Rule of Civil Procedure 15(a) similarly requires that a party seek leave of court (or the opposing party's consent) to amend a complaint after issue has been joined. Plaintiff admits that she filed her Amended Complaint on October 8, 2008, without moving this Court for permission [*6] or seeking Defendants' consent. (Pl. Br. [Docket No. 23], at 2.) She offers to file a motion to amend in response to Defendants' motion to oppose the Amended Complaint, if necessary. (Id.) I fail to see how counsel for Plaintiff could have misapprehended both my order and the Federal Rules of Civil Procedure. Nevertheless, because I agree with Defendants' opposition to the proposed Amended Complaint on the merits, I need not refuse the amendment on technical grounds. IV. Amendment Of The Complaint Would Be Futile A. Loss of Consortium Count II of the proposed Amended Complaint seeks damages for loss of consortium suffered by Plaintiff's husband. 1 "Under Pennsylvania law, a spouse's right to recover for loss of consortium derives only from the other spouse's right to recover in tort." Danas v. Chapman Ford Sales, Inc., 120 F. Supp.2d 478, 489 (E.D. Pa. 2000) (citing Murray v. Commercial Union Ins. Co., 782 F.2d 432, 438 (3d Cir. 1986)). Here, Plaintiff has only asserted a claim for violation of her civil rights. Absent a viable tort claim asserted by Plaintiff, her husband cannot bring a claim for loss of consortium. See Danas, 120 F. Supp.2d at 489 ("No authority suggests that civil rights [*7] violations can support loss of consortium claims."); Stauffer v. City of Easton, 1999 U.S. Dist. LEXIS 11407, 1999 WL 554602, at * 1 (E.D. Pa. July 20, 1999) ("A spouse's right to recover under a 1 The proposed Amended Complaint seeks damages for loss of consortium for the "Plaintiffs jointly as husband and wife." [*8] (Docket No. 15, at P 28(a).) However, in Plaintiff's brief, she clarifies that the loss of consortium claim belongs to her husband, Randall Melencheck. (Pl. Br., at 3.) 2009 U.S. Dist. LEXIS 74207, *3 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 102 of 139 Page 3 of 3 civil rights statute such as the PHRA, however, does not support a loss of consortium claim."); Quitmeyer v. Southeastern Pa. Transp. Auth., 740 F. Supp. 363, 370 (E.D. Pa. 1990)("Moreover, there is no authority to permit spousal recovery for loss of consortium based on violations of the other spouse's civil rights.") The single case cited by Plaintiff expressly agrees with this authority. See Pahle v. Colebrookdale Township, 227 F. Supp.2d 361, 381 (E.D. Pa. 2002) ("In this limited respect, we agree with other decisions by District Courts in our Circuit that have considered consortium claims in conjunction with § 1983 claims.") 2 Accordingly, I deny as futile Plaintiff's motion to amend to add her husband's claim for loss of consortium. B. Negligent Infliction of Emotional Distress In Count III of the proposed Amended Complaint, Plaintiff's husband and children allege that they suffered emotional distress as a result of Plaintiff's injuries. Specifically, after Randall Melenchek became "enraged" as a result of Plaintiff's injuries, as well as his own, he confronted Defendants and was arrested, resulting in the loss of his job and retirement. (Pl. Br. at 4-5.) Plaintiff's husband and children also suffered emotional distress after witnessing Plaintiff's suicide attempt. (Id. at.) Defendants argue that these allegations fail to state a claim for negligent infliction of emotional distress. Under Pennsylvania law, "it is not sufficient merely to see the effects of defendants' conduct on the injured party after [*9] the fact; the plaintiff in an action for negligent infliction of emotional distress 'must have observed the defendant traumatically inflicting the harm on the plaintiff's relative, with no buffer of time or space to soften the blow.'" Carpino v. United States, 2003 U.S. Dist. LEXIS 8036, 2003 WL 21058178, at *1 (E.D. Pa. May 13, 2003) (quoting Bloom v. Dubois Regional Med. Ctr., 409 Pa. Super. 83, 597 A.2d 671, 682 (Pa. Super. 1991)); see also, Halliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906, 909 (Pa. Super. 1986) ("We conclude that the court was correct in dismissing the complaint since appellants did not observe the alleged tortious conduct."). Here, Plaintiff's husband's and children's proposed claim arises merely from their witnessing the effect of Defendants' conduct on Plaintiff. They have not alleged that they actually witnessed the conduct that 2 Plaintiff argues that the allegations of her Complaint support a tort claim which she will assert in a Second Amended Complaint, with the Court's permission. As discovery has ended, I refuse to grant such permission on the record before me at this time. caused the injury to Plaintiff. Accordingly, since Count III of the proposed Amended Complaint fails to state a claim upon which relief can be granted, permitting amendment to add that claim would be futile. Conclusion Based on the foregoing, Plaintiff's motion to amend the Complaint to add a claim by her husband for loss of consortium (Count II) and a claim by her husband and children for negligent [*10] infliction of emotional distress (Count III) is DENIED. ORDER OF COURT Having carefully considered Defendants' opposition to the motion to amend [Docket Nos. 17, 18], and Plaintiff's response thereto [Docket Nos. 21, 23], it is hereby ORDERED that (1) Plaintiff's motion to amend the Complaint is DENIED; and (2) a settlement conference is scheduled for March 24, 2009 at 12:30 p.m. BY THE COURT: /s/ Donetta W. Ambrose Donetta W. Ambrose, Chief U.S. District Judge End of Document 2009 U.S. Dist. LEXIS 74207, *8 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 103 of 139 Cited As of: May 17, 2017 5:42 PM Z EEOC v. Victoria's Secret Stores, Inc. United States District Court for the Eastern District of Pennsylvania January 13, 2003, Decided ; January 14, 2003, Filed, Entered CIVIL ACTION NO. 02-6715 Reporter 2003 U.S. Dist. LEXIS 1290 *; 2003 WL 21282193 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. VICTORIA'S SECRET STORES, INC. Disposition: [*1] Motion to Intervene granted in part and denied in part. Case Summary Procedural Posture A husband and wife moved to intervene as party plaintiffs in case brought by plaintiff Equal Employment Opportunity Commission against defendant retailer pursuant to Title VII alleging racial and religious discrimination. The wife sought to intervene to assert discrimination under Title VII and the state constitution, and a claim for intentional infliction of emotional distress. The husband sought to assert a loss of consortium claim. Overview The Equal Employment Opportunity Commission charged that during her employment as a co-manager, the wife was subjected to a hostile work environment when co-workers and the store manager made racially offensive remarks to her and when the manager refused to adjust her work schedule to allow church attendance. The wife had a right to intervene in the Title VII claim because she had standing to pursue that claim. She could not assert a violation of the state constitution claim because the section cited was inapplicable to her claim of racial or religious discrimination. The Pennsylvania Human Relations provided her with the vehicle for a direct cause of action alleging racial and religious discrimination. The retailer's actions did not rise to the level necessary for the wife to assert a claim for negligent infliction of emotional distress. Since the wife could not state a tort claim, the husband could not intervene on his sole claim of loss of consortium. Outcome The motion to intervene in the federal action and to pursue a parallel state discrimination claim was granted as to the wife. The motion to intervene was otherwise denied. LexisNexis® Headnotes Civil Procedure > Parties > Intervention > General Overview Civil Procedure > Parties > Intervention > Intervention of Right Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview HN1[ ] A person has an unconditional right to intervene in the Title VII action initiated on her behalf. 42 U.S.C.S. § 2000e-5(f)(1). Civil Procedure > Parties > Intervention > General Overview Civil Procedure > Parties > Intervention > Motions to Intervene Civil Procedure > Parties > Intervention > Intervention of Right Trademark Law > ... > Federal Unfair Competition Law > Lanham Act > Standing HN2[ ] The right to intervene presupposes the presentation of a cognizable claim which the intervenor has standing to pursue. A motion to intervene will thus be denied where the proposed complaint-in-intervention fails on its face to state a cognizable claim. Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 104 of 139 Page 2 of 4 Constitutional Law > Equal Protection > Gender & Sex HN3[ ] See Pa. Const. art. I, § 28. Constitutional Law > Equal Protection > Gender & Sex HN4[ ] Pa. Const. art. I, § 28 does not address purely private conduct which has not been ratified or sanctioned by governmental entities or officials, but rather reaches sex discrimination under the law. Constitutional Law > Equal Protection > Gender & Sex HN5[ ] Pennsylvania provides a direct cause of action under the Pennsylvania Human Relations Act for gender, as well as racial and religious, discrimination. Torts > Intentional Torts > Intentional Infliction of Emotional Distress > General Overview Torts > Intentional Torts > Intentional Infliction of Emotional Distress > Elements HN6[ ] To maintain a claim for intentional infliction of emotional distress, a plaintiff must allege facts which show she has suffered severe emotional distress as a result of intentional or reckless conduct by a defendant which is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. A court must preliminarily determine whether the conduct alleged is so outrageous and extreme as to permit recovery. Torts > Intentional Torts > Intentional Infliction of Emotional Distress > General Overview HN7[ ] It is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress. Labor & Employment Law > ... > Racial Harassment > Employment Practices > Compensation Workers' Compensation & SSDI > Exclusivity Workers' Compensation & SSDI > Exclusivity > General Overview Workers' Compensation & SSDI > Exclusivity > Exceptions HN8[ ] The Pennsylvania Workmen's Compensation Act provides the exclusive remedy for work-related injuries. Pa. Stat. Ann. tit. 77, § 481(a). There is an exception to the general rule of exclusivity for intentional torts committed by third parties for purely personal reasons. The so-called personal animus or third-party attack exception applies in very limited circumstances. Harassment arising from general racist attitudes or other forms of bigotry does not trigger the exception. The offending conduct must be motivated by personal reasons as opposed to generalized contempt or hatred, and be sufficiently unrelated to the work situation so as not to arise out of the employment relationship. Family Law > Marital Duties & Rights > Causes of Action > Loss of Consortium Torts > ... > Types of Losses > Loss of Consortium > General Overview Torts > ... > Types of Losses > Loss of Consortium > Spouses HN9[ ] A claim for loss of consortium arises from the marital relationship and is based on the loss of a spouse's services and companionship resulting from an injury. It is limited to situations in which the other spouse may recover in tort. Family Law > Marital Duties & Rights > Causes of Action > Loss of Consortium Torts > ... > Types of Losses > Loss of Consortium > General Overview HN10[ ] A spouse's right to recover under an employment discrimination statute does not support a loss of consortium claim. Counsel: For EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff: CYNTHIA A. LOCKE, JACQUELINE H. MCNAIR, JUDITH A. O'BOYLE, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PHILADELPHIA, PA. For DERRICK ELLERSON, LAUREN ELLERSON, 2003 U.S. Dist. LEXIS 1290, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 105 of 139 Page 3 of 4 Intervenor Plaintiffs: GREGORY A. SMITH, MCELDREW & FULLAM PC, PHILADELPHIA, PA. For VICTORIA'S SECRET STORES, INC., Defendant: ANDREW C. SMITH, MICHAEL G. LONG, VORYS SATER SEYMOUR & PEASE LLP, COLUMBUS, OH. For VICTORIA'S SECRET STORES, INC., Defendant: CARL E. SINGLEY, HEATHER A. STEINMILLER, BLANK ROME COMISKY & MCCAULEY LLP, PHILADELPHIA, PA. Judges: JAY C. WALDMAN, J. Opinion by: JAY C. WALDMAN Opinion MEMORANDUM ORDER Presently before the court is the Motion of Lauren Ellerson and her husband, Derrick Ellerson, to Intervene as Party Plaintiffs Pursuant to Fed. R. Civ. P. 24(a) in this racial and religious discrimination case brought by the Equal Employment Opportunity Commission ("EEOC") against Ms. Ellerson's former employer. [*2] Ms. Ellerson is African-American and a practicing Baptist. The EEOC has charged that during her employment as a co-manager of a Victoria's Secret retail store, Ms. Ellerson was subjected to a hostile work environment when co-workers and the store manager made racially offensive remarks to her and when the manager refused to adjust her work schedule to allow church attendance. Ms. Ellerson seeks to intervene to assert claims of discrimination under Title VII and the Pennsylvania Human Relations Act ("PHRA"), for violation of Article I, § 28 of the Pennsylvania Constitution and for intentional infliction of emotional distress. Mr. Ellerson seeks to assert a claim for loss of consortium. HN1[ ] Lauren Ellerson has an unconditional right to intervene in the Title VII action initiated on her behalf. See 42 U.S.C. § 2000e-5(f)(1); EEOC v. Waffle House, Inc., 534 U.S. 279, 291, 151 L. Ed. 2d 755, 122 S. Ct. 754 (2002). See also EEOC v. Rekrem, Inc., 199 F.R.D. 526, 528 (S.D.N.Y. 2001); EEOC v. DPCE, Inc., 1990 U.S. Dist. LEXIS 5022, 1990 WL 54995 (E.D. Pa. April 25, 1990); EEOC v. West Co., 1986 WL 1239, *1 (E.D. Pa. Jan. 27, 1986). [*3] HN2[ ] The right to intervene presupposes the presentation of a cognizable claim which the intervenor would have standing to pursue. A motion to intervene will thus be denied where the proposed complaint-in- intervention fails on its face to state a cognizable claim. See Williams & Humbert Ltd. v. W. & H. Trade Marks, 268 U.S. App. D.C. 192, 840 F.2d 72, 75 (D.C. Cir. 1988); Solien v. Miscellaneous Drivers & Helpers Union, Loc. No. 610, 440 F.2d 124, 132 (8th Cir. 1971), cert. denied, 403 U.S. 905 (1971); Lucero v. City of Albuquerque, 140 F.R.D. 455, 457 (D.N.M. 1992); Donson Stores, Inc. v. American Bakeries Co., 58 F.R.D. 481, 485 (S.D.N.Y. 1973); 7C Charles Alan Wright et al., Federal Practice and Procedure § 1914 (2d ed. 1986). In the proposed complaint, movants fail to set forth a cognizable claim for discrimination in violation of Article I, § 28 of the Pennsylvania Constitution. This provision states that HN3[ ] "equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual." It is clearly inapplicable to a claim of racial [*4] or religious discrimination. 1 HN6[ ] To maintain a claim for intentional infliction of emotional distress, a plaintiff must allege facts which show she has suffered severe emotional distress as a result of intentional or reckless conduct by a defendant which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (Pa. 1998). See also Rowe v. Marder, 750 F. Supp. 718, 726 (W.D. Pa. 1990) (noting [*5] cause of action limited to "diabolical" conduct and acts of extreme "abomination"), aff'd, 935 F.2d 1282 (3d Cir. 1991). The court must preliminarily determine whether the conduct alleged is so outrageous and extreme as to permit recovery. See Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988) (noting HN7[ ] it is "extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for 1 HN4[ ] The provision also does not address purely private conduct which has not been ratified or sanctioned by governmental entities or officials, but rather "reaches sex discrimination under the law." Hartford Acc. & Indem. v. Insurance Comm'r, 505 Pa. 571, 482 A.2d 542, 549 (Pa. 1984). HN5[ ] Pennsylvania provides a direct cause of action under the PHRA for gender, as well as racial and religious, discrimination. 2003 U.S. Dist. LEXIS 1290, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 106 of 139 Page 4 of 4 recovery for the tort of intentional infliction of emotional distress"). The conduct alleged by movants does not satisfy this stringent test as it has been applied under Pennsylvania law. See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990) (sexual harassment insufficient); Clark v. Township of Falls, 890 F.2d 611, 623 (3d Cir. 1989) (setting aside verdict for plaintiff who was defamed and falsely referred for prosecution); Cox, 861 F.2d at 395 (ill- motivated callous termination of employment insufficient); Sicalides v. Pathmark Stores, Inc., 2000 U.S. Dist. LEXIS 8051, 2000 WL 760439, *11-12 (E.D. Pa. June 12, 2000) (offensive comments [*6] and harassment insufficient); Equal Employment Opportunity Comm'n v. Chestnut Hill Hosp., 874 F. Supp. 92, 96 (E.D. Pa. 1995) (racial discrimination insufficient); Motheral v. Burkhart, 400 Pa. Super. 408, 583 A.2d 1180, 1190 (Pa. Super. 1990) (falsely accusing plaintiff of child molestation insufficient). 2 [*7] HN9[ ] A claim for loss of consortium arises from the marital relationship and is based on the loss of a spouse's services and companionship resulting from an injury. See Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146, 1149 (Pa. 1997); Sprague v. Kaplan, 392 Pa. Super. 257, 572 A.2d 789 (Pa. Super. 1990). Loss of consortium is a derivative claim. See Patterson v. American Bosch Corp., 914 F.2d 384, 386 n.4 (3d Cir. 1990); Wakshul v. City of Philadelphia, 998 2 Defendant notes with some force that this claim would be barred in any event by HN8[ ] the Pennsylvania Workmen's Compensation Act which provides the exclusive remedy for work-related injuries. See 77 P.S. § 481(a). There is an exception to the general rule of exclusivity for intentional torts committed by third parties for "purely personal reasons." Kohler v. McCrory Stores, 532 Pa. 130, 615 A.2d 27, 31 (Pa. 1992). This so-called "personal animus" or "third-party attack" exception "applies in very limited circumstances." Fugarino v. Univ. Serv., 123 F. Supp. 2d 838, 843 (E.D. Pa. 2000). See also Durham Life Ins. Co. v. Evans, 166 F.3d 139, 160 & n.16 (3d Cir. 1999). Harassment arising from general racist attitudes or other forms of bigotry does not trigger the exception. See Fugarino, 123 F. Supp. 2d at 843. The offending conduct must be "motivated by personal reasons as opposed to generalized contempt or hatred, and [be] sufficiently unrelated to the work situation so as not to arise out of the employment relationship." Id. at 844. It appears from movants' allegations that the offensive comments and conduct in this case arose from the employment relationship, and would have been directed at any employee of movant's race or religious practice. See Durham Life, 166 F.3d at 160; Hicks v. Arthur, 843 F. Supp. 949, 958 (E.D. Pa. 1994). F. Supp. 585, 590 (E.D. Pa. 1998); Stipp v. Kim, 874 F. Supp. 663, 666 (E.D. Pa. 1995); Little v. Jarvis, 219 Pa. Super. 156, 280 A.2d 617, 620 (Pa. Super. 1971). It is limited to situations in which the other spouse may recover in tort. See Murray v. Commercial Union Ins. Co., 782 F.2d 432, 438 (3d Cir. 1986); Szydlowski v. City of Philadelphia, 134 F. Supp. 2d 636, 639 (E.D. Pa. 2001). HN10[ ] A spouse's right to recover under an employment discrimination statute does not support a loss of consortium claim. See Hettler v. Zany Brainy, Inc., 2000 U.S. Dist. LEXIS 14537, 2000 WL 1468550, *7 (E.D. Pa. Sept. 27, 2000); [*8] Danas v. Chapman Ford Sales, Inc., 120 F. Supp. 2d 478, 489 (E.D. Pa. 2000) (dismissing loss of consortium claim alleged to derive from spouse's ADEA and PHRA claims); Stauffer v. City of Easton, 1999 U.S. Dist. LEXIS 11407, *1 (E.D. Pa. July 20, 1999). See also Quitmeyer v. Southeastern Pa. Transp. Auth., 740 F. Supp. 363, 370 (E.D. Pa. 1990) (no spousal recovery for loss of consortium based on violations of other spouse's civil rights). ACCORDINGLY, this 13th day of January, 2003, upon consideration of the Motion of Lauren and Derrick Ellerson to Intervene (Doc. # 3) and defendant's response thereto, IT IS HEREBY ORDERED that said Motion is GRANTED as to Lauren Ellerson's request to intervene in the Title VII action and to pursue a parallel PHRA claim, and the Motion is otherwise DENIED. BY THE COURT: JAY C. WALDMAN, J. End of Document 2003 U.S. Dist. LEXIS 1290, *5 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 107 of 139 Caution As of: May 17, 2017 5:42 PM Z Wilsbach v. Filene's Basement United States District Court for the Eastern District of Pennsylvania December 30, 1997, Decided ; December 31, 1997, Filed and Entered CIVIL ACTION NO. 96-2219 Reporter 1997 U.S. Dist. LEXIS 20984 *; 1997 WL 805164 ROBERT W. WILSBACH and CORA WILSBACH, husband and wife, Plaintiffs, v. FILENE'S BASEMENT, INC., et al., Defendants. Disposition: [*1] Motion of defendants Filene's Basement, Inc., Gene Montgomery, and Frank Honey for summary judgment pursuant to Rule 56(c) of Federal Rules of Civil Procedure (Document No. 25) GRANTED IN PART AND DENIED IN PART. Case Summary Procedural Posture Plaintiffs, employee and his wife, sued defendants, employer et al., after he was terminated. The employee worked part-time as a loss prevention officer at the employer's stores. He also worked as a police officer. The employee brought claims for age discrimination, wrongful discharge, breach of employment contract, intentional infliction of emotional distress, and loss of consortium. The employer moved for summary judgment on all claims. Overview The employer alleged the employee was terminated because of excessive absenteeism and an unwillingness to improve job skills. The employer also stated that the employee was not replaced by a younger employee. The employee presented evidence that certain of the managerial staff made comments about him, such as "he was too old to chase shoplifters." The district court found that these statements were not made by individuals involved in the decision to terminate, and thus were not direct evidence of discrimination. However, these comments provided sufficient evidence for the employee to establish a pretext. Regarding the breach of contract claim, the district court found the employee presented no evidence to overcome the presumption that he was employed "at-will." Regarding the intentional infliction of emotional distress claim, the employer's conduct, such as reassigning the employee to a location knowing that it would have interfered with his work as a police officer, did not rise to the "outrageous" level required to sustain this claim. Without this tort claim, the wife's consortium claim also failed because, under Pennsylvania law, loss of consortium required an underlying tort. Outcome The district court granted the motion for summary judgment for all claims except for the age discrimination claim. LexisNexis® Headnotes Civil Procedure > ... > Discovery > Methods of Discovery > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Legal Entitlement Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts Civil Procedure > ... > Summary Judgment > Supporting Materials > General Overview HN1[ ] Fed. R. Civ. P. 56(c) provides that if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a moving party is entitled to a judgment as a matter of law, then a motion for summary judgment Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 108 of 139 Page 2 of 14 may be granted. Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Civil Procedure > ... > Summary Judgment > Burdens of Proof > Movant Persuasion & Proof Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes HN2[ ] In a motion for summary judgment, a moving party has the initial burden of illustrating for a court the absence of a genuine issue of material fact. Civil Procedure > Judgments > Summary Judgment > General Overview Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Civil Procedure > ... > Summary Judgment > Motions for Summary Judgment > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Appropriateness Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes HN3[ ] In a motion for summary judgment, once a moving party has made a proper motion for summary judgment, the burden switches to the nonmoving party. Under Fed. R. Civ. P. 56(e), when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > General Overview HN4[ ] In a motion for summary judgment, a court is to take all of the evidence of the nonmoving party as true and to draw all reasonable inferences in his favor in determining if there is a genuine issue of material fact. Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes HN5[ ] In a motion for summary judgment, in order to establish that an issue is genuine, a nonmoving party must proffer evidence such that a reasonable jury could return a verdict in his favor. Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview Labor & Employment Law > ... > Age Discrimination > Evidence > Direct Evidence HN6[ ] Under the Age Discrimination in Employment Act, 29 U.S.C.S. § 621 et seq., a plaintiff can sustain an age discrimination claim by either presenting direct or circumstantial evidence. Evidence > Burdens of Proof > Burdens of Production Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview Labor & Employment Law > ... > Age Discrimination > Evidence > Direct Evidence Labor & Employment Law > ... > Disability Discrimination > Evidence > General Overview HN7[ ] A direct evidence case of age discrimination exists when the evidence a plaintiff produces is so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production. Statements by non-decisionmakers, or statements by decisionmakers that are unrelated to the decisional process in terminating an employee, do not satisfy the plaintiffs burden. What is required is direct evidence that the decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision. Stray remarks made in the workplace by persons who are not involved in the pertinent decisionmaking process would not suffice, even if credited, to warrant a Price Waterhouse charge. 1997 U.S. Dist. LEXIS 20984, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 109 of 139 Page 3 of 14 Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview HN8[ ] In an age discrimination case, age related jokes, though temporally remote from the decision to fire a plaintiff, may nonetheless be considered as circumstantial evidence. Labor & Employment Law > Discrimination > General Overview Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview Labor & Employment Law > ... > Age Discrimination > Evidence > Burdens of Proof Labor & Employment Law > ... > Age Discrimination > Evidence > Circumstantial Evidence HN9[ ] Where there is no direct evidence of age discrimination, a plaintiff may still prevail by presenting circumstantial evidence under the burden shifting analysis of McDonnell Douglas. Under a McDonnell Douglas framework, a plaintiff must first present a prima facie case by establishing, by a preponderance of the evidence, that: (1) he is over 40 years old; (2) he is qualified for the position in question; (3) he suffered from an adverse employment decision; and (4) his replacement was sufficiently younger to permit an inference of age discrimination. Once the plaintiff satisfies his prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Should the defendant successfully carry its burden, the plaintiff then has the burden of proving, by a preponderance of the evidence, that the employer's stated reasons were not its true reasons but were a pretext for discrimination. Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Civil Procedure > ... > Summary Judgment > Opposing Materials > General Overview Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview HN10[ ] In an employment discrimination case, under the McDonnell Douglas burden-shifting scheme, a plaintiff may defeat a motion for summary judgment based on a defendant's proffered nondiscriminatory reason for an adverse employment decision by either showing evidence, directly or circumstantially, that (1) discredits the proffered reasons for termination, or (2) discrimination was more likely than not a motivating or determinative cause of the adverse action. The plaintiff cannot simply show that the decision was wrong or mistaken, because the factual dispute at issue is not whether the defendant made a correct decision in terminating plaintiff but whether unlawful discrimination motivated that decision. A plaintiff must be able to show evidence of inconsistencies or implausibilities that support an inference that defendant did not act for its stated reasons. Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview HN11[ ] In an age discrimination case, where a plaintiff's job is eliminated and he is not replaced, to establish a prima facie case, the employee need only show that he was laid off from a job for which he was qualified while other workers not in the protected class were retained. The burden of proof for a prima facie case is not onerous. Labor & Employment Law > ... > Evidence > Burdens of Proof > Burden Shifting HN12[ ] By establishing a prima facie case, a plaintiff eliminates the most common nondiscriminatory reasons for an adverse employment action and creates a presumption of discrimination. Once a prima facie case has been established, a defendant must articulate a legitimate, nondiscriminatory reason for the employer's action The burden upon defendant is minimal. Civil Procedure > ... > Summary Judgment > Burdens of Proof > General Overview Civil Procedure > ... > Summary Judgment > Opposing Materials > General Overview Labor & Employment Law > Discrimination > General Overview Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview HN13[ ] In an age discrimination case, to defeat a 1997 U.S. Dist. LEXIS 20984, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 110 of 139 Page 4 of 14 motion for summary judgment of a defendant, a plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. In evaluating the proffered reasons of the defendant for terminating the plaintiff, it is not the role of a court to determine whether the employer was wise, shrewd, prudent, or competent. Rather, the plaintiff must point the court to such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons. Labor & Employment Law > ... > Age Discrimination > Discriminatory Employment Practices > General Overview Labor & Employment Law > ... > Age Discrimination > Evidence > General Overview HN14[ ] In an age discrimination case, stray remarks by non-decisionmakers or by a decisionmaker unrelated to the decision process are insufficient to constitute direct evidence of age discrimination, but may provide some relevant evidence of discrimination. Labor & Employment Law > Employment Relationships > General Overview Labor & Employment Law > Employment Relationships > At Will Employment > General Overview Labor & Employment Law > Employment Relationships > At Will Employment > Duration of Employment Labor & Employment Law > Employment Relationships > Employment Contracts > Breaches HN15[ ] Under Pennsylvania law, it is an established general principle that in an employment relationship, an employer may discharge an employee with or without cause, at pleasure, unless retrained by some contract. The at-will employment doctrine applies absent clear evidence that the parties intended to contract for a definite period. Whether evidence is sufficient to overcome the at-will presumption is a question of interpretation normally left to the court. Labor & Employment Law > Employment Relationships > At Will Employment > General Overview Labor & Employment Law > Employment Relationships > At Will Employment > Duration of Employment HN16[ ] An employee may rebut the presumption of at-will employment with evidence that the parties intended to contract for a definite period, or that the employee gave consideration beyond those services for which she was hired. Torts > Intentional Torts > Intentional Infliction of Emotional Distress > General Overview HN17[ ] To present a successful claim for intentional infliction of emotional distress, the conduct complained of must be of an extreme or outrageous type, so extreme in degree as to go beyond all possible bounds of decency, and be regarded as atrocious, and utterly intolerable in a civilized society. Labor & Employment Law > Wrongful Termination > Remedies > General Overview Torts > Intentional Torts > Intentional Infliction of Emotional Distress > General Overview HN18[ ] It is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress. While loss of employment is unfortunate and unquestionably causes hardship, often severe, it is a common event and cannot provide a basis for a successful claim. Torts > ... > Types of Losses > Loss of Consortium > General Overview Torts > ... > Types of Losses > Loss of Consortium > Spouses Torts > Intentional Torts > Intentional Infliction of Emotional Distress > General Overview HN19[ ] Under Pennsylvania law, a wife's consortium 1997 U.S. Dist. LEXIS 20984, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 111 of 139 Page 5 of 14 claim derives only from the injured husband's right to recover in tort. Family Law > Marital Duties & Rights > Causes of Action > Loss of Consortium Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview Torts > ... > Types of Losses > Loss of Consortium > General Overview Torts > Intentional Torts > Intentional Infliction of Emotional Distress > General Overview HN20[ ] Title VII does not provide for loss of consortium damages. Family Law > Marital Duties & Rights > Causes of Action > Loss of Consortium Torts > ... > Types of Losses > Loss of Consortium > General Overview Torts > ... > Types of Losses > Loss of Consortium > Spouses HN21[ ] There is no authority to permit spousal recovery for loss of consortium on violations of other spouse's civil rights. Counsel: For ROBERT W. WILSBACH, CORA WILSBACH, PLAINTIFFS: MICHAEL A. SMERCONISH, BEASLEY, CASEY AND ERBSTEIN, PHILADELPHIA, PA USA. For FILENE'S BASEMENT, INC., GENE MONTGOMERY, FRANK HONEY, DEFENDANTS: STEPHEN J. SUNDHEIM, PEPPER, HAMILTON & SCHEETZ, PHILA, PA USA. For FILENE'S BASEMENT, INC., GENE MONTGOMERY, FRANK HONEY, DEFENDANTS: VINCENT J. PENTIMA, PHILA, PA USA. For FILENE'S BASEMENT, INC., GENE MONTGOMERY, DEFENDANTS: CHRISTOPHER J. LIEBIG, ANDREW L. MATZ, MARY L. MARSHALL, STONEMAN, CHANDLER AND MILLER, BOSTON, MA USA. For FRANK HONEY, DEFENDANT: ANDREW L. MATZ, STONEMAN, CHANDLER AND MILLER, BOSTON, MA USA. Judges: LOWELL A. REED, JR., J. Opinion by: LOWELL A. REED, JR. Opinion MEMORANDUM Pending before the Court is the motion of defendant Filene's Basement, Inc. ("Filene's Basement"), defendant Gene Montgomery, and defendant Frank Honey for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) (Document No. 25). Plaintiffs Robert Wilsbach [*2] and Cora Wilsbach, husband and wife, brought this suit against the above defendants plus defendant James Gould, who did not join the other defendants in submitting the pending motion for summary judgment 1 Because this suit is premised on an alleged violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., this Court has original jurisdiction pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367. For the following reasons, the motion will be denied as to the age discrimination claim and granted as to the state law claims of breach of contract, intentional infliction of emotional distress, and loss of consortium. I. BACKGROUND From 1986 to 1994, plaintiff Robert Wilsbach ("Wilsbach") was employed part-time as a Loss Prevention Officer by Filene's [*3] Basement located in Willow Grove, Pennsylvania. Loss Prevention Officers are essentially store detectives hired for the purpose of apprehending shoplifters. At the time of his hiring, Wilsbach was 43-years old and a full-time officer at the Abington Township Police Department ("Police Department"), a position he still held when he was terminated from Filene's Basement. From 1986 through 1992, Wilsbach received performance evaluations that were consistently above average. 2 He also received 1 On March 6, 1997, Wilsbach filed a petition for default judgment against defendant James J. Gould (Document No 23) I will resolve that motion in a separate Order 2 Specifically, he received the following ratings for the "overall performance" category: 1997 U.S. Dist. LEXIS 20984, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 112 of 139 Page 6 of 14 salary raises yearly Despite above average evaluations, the evaluations were not void of criticisms. (See Pl. Ex C - Performance Evaluation of 4/20/87 ("Bob needs to be more aggressive in contributing to Loss Prevention apprehensions."), Performance Evaluation of 7/31/87 (Wilsbach needs to "increase[] apprehensions" and "become more aggressive for apprehension" in addition to being more "available to work nights and more weekends."), Performance Evaluation of 8/28/92 ("Bob's apprehensions have increased from the year before. Bob now needs to work closely with the new [lead detective] to help increase his overall productivity.")). In November 1993, Wilsbach received his lowest performance [*4] evaluation with an overall rating of "Marginal." (Pl. Ex. L). The evaluation noted, in part, that Wilsbach's apprehension performance was "unsatisfactory," his attitude was "negative toward his department concerning issues such as scheduling, staffing and overall change in the department," he "lacks initiative in working towards improving his performance," his "working knowledge of shoplifters is minimal as [he] has expressed that he does not feel that he can be a productive detective when working alone," and he "spends too much time socializing . . . ." (Pl. Ex. L). Defendant James Gould ("Gould"), then Regional Manager for New Jersey and Pennsylvania, and Paul Go to table1 November 1986 Above Average April 1987 Above Average July 1987 Good/Satisfactory July 1988 Above Average August 1989 Outstanding July 1990 Above Average July 1991 Outstanding August 1992 Outstanding (Pl Ex C) Laponius ("Laponius"), then Loss Prevention Manager at Willow Grove, with the approval of Marianna Filosa ("Filosa"), the store's Personnel Manager, issued Wilsbach a "Final Written Warning" letter. The letter stated that "Mr. Wilsbach is performing at a marginal level and Mr. Wilsbach's productivity relative to hours per apprehension is well below company average." (Aff. of Filosa Gawel - Ex. A). The letter further noted that "termination could result" if there was no improvement. Wilsbach was required to participate in an [*5] action plan, which he did. In June or July 1994, defendant Frank Honey ("Honey") became the Regional Manager and Harry Uhl ("Uhl") become the Loss Prevention Manager at Willow Grove. In August of that year, Uhl, with the approval of Filosa, issued another "Final Written Warning" to Wilsbach and again placed him in another action plan. The letter stated that Wilsbach "needs to maintain his average hour per apprehension in line with the other detectives in the Willow Grove location . . . Should Bob's productivity not improve over the 45 day period, he will be released from employment . . . ." (Aff. of Uhl - Ex A) In the place designated for employee's comments on the evaluation, Wilsbach [*6] noted that he disagreed with the evaluation and the action plan. Honey consulted with Uhl, Barbara Kircher ("Kircher"), the Regional Personnel Manager, defendant Gene Montgomery ("Montgomery"), the Director of Loss Prevention Services, and Deborah Masules, the Vice President of Human Resources, regarding Wilsbach's productivity. Thereafter, Honey withdrew the "Final Written Warning" and placed Wilsbach in the company's "Regional Loss Prevention Pooling" program ("Pooling Program"), whereby detectives were sent to different stores that were shorthanded. The program also enabled detectives to gain experience in different store environments as well as improve their own apprehension rates. Wilsbach was assigned to work two of his four weekly shifts in the Center City, Philadelphia store. He called in sick each time he was scheduled to work at the Center City store. With the approval of Filosa, Uhl issued one oral and one written warning to Wilsbach in September and October 1994, due to his absenteeism, with the express directive that "if Bob continues to call out from work, he will be terminated from employment." (Aff. of Uhl - Exs B, C) After missing two more shifts, Uhl brought the [*7] situation to the attention of Filosa. Filosa and Kircher then decided to terminate Wilsbach because he was in violation of the company's absenteeism policy In October 1994, his employment with Filene's Basement 1997 U.S. Dist. LEXIS 20984, *3 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 113 of 139 Page 7 of 14 was terminated due to his excessive absenteeism Wilsbach maintains that his termination was motivated by unlawful age discrimination Wilsbach and his wife brought this action in March 1996 and amended their Complaint in May 1996 alleging four counts "Age Discrimination/Wrongful Discharge" against Filene's Basement, (Count I), breach of contract against Filene's Basement and Gene Montgomery (Count II), intentional infliction of emotional distress against all defendants (Count III), and loss of consortium against all defendants (Count IV). II. LEGAL STANDARD HN1[ ] Rule 56(c) of the Federal Rules of Civil Procedure provides that "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" then a motion for summary judgment may be granted. HN2[ ] The moving party has the initial burden of illustrating [*8] for the court the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-61, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). HN3[ ] Once the moving party has made a proper motion for summary judgment, the burden switches to the nonmoving party. Under Rule 56(e), when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. HN4[ ] The court is to take all of the evidence of the nonmoving party as true and to draw all reasonable inferences in his favor in determining if there is a genuine issue of material fact. See Adickes, 398 U.S. at 158-59. HN5[ ] In order to establish that an issue is genuine, the nonmoving party must proffer evidence such that a reasonable [*9] jury could return a verdict in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). III. DISCUSSION A. Age Discrimination HN6[ ] Under the ADEA, a plaintiff can sustain an age discrimination claim by either presenting direct or circumstantial evidence. In the instant case, Wilsbach contends that the age discrimination claim is grounded in both direct and circumstantial evidence. 1. Direct Evidence HN7[ ] A direct evidence case of age discrimination exists when "the evidence the plaintiff produces is so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production." Armbruster v. Unisys Corp. 32 F.3d 768, 778 (3d Cir. 1994). Statements by non-decisionmakers, or statements by decisionmakers that are unrelated to the decisional process in terminating an employee, do not satisfy the plaintiffs burden. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (O'Connor, J., concurring) "What is required is . . . direct evidence that the decisionmakers placed substantial negative reliance on [*10] an illegitimate criterion in reaching their decision." Id. Stray remarks made "'in the workplace by persons who are not involved in the pertinent decisionmaking process . . . would not suffice, even if credited, to warrant a Price Waterhouse charge'" Hook v. Ernst & Young, 28 F.3d 366, 374 (3d Cir. 1994) (quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir 1992)). Other comments which have been held unsatisfactory in "directness" and thus equivalent to stray remarks are those which are made at a time "temporally remote" from the time of the decision process. 28 F.3d at 375; see also Schiwall v. American Packaging Corp., 1997 U.S. Dist. LEXIS 784, No.CIV.A.95-7190, 1997 WL 36971, at *4-5 (E.D. Pa. Jan. 30, 1997) (finding comments made by supervisor months before termination of the plaintiff were insufficient to constitute direct evidence of age discrimination); Sosky v. International Mill Serv., Inc., 1996 U.S. Dist. LEXIS 791, No.CIV.A.94-2833, 1996 WL 32139, at *3-4 (E.D. Pa. Jan. 25, 1996) (Reed, J.) (same), aff'd, 103 F.3d 114 (3d Cir. 1996). To support his argument that he has adduced direct evidence of age discrimination, Wilsbach points to four comments made by managerial staff: [*11] (1) Kircher took personal notes on July 7, 1994 of a conversation she had with Honey, where she reported that Honey stated, "He's over 50 -- that's why Mr. Wilsbach doesn't have apprehensions -- he's too old to chase a suspect." (Pl Ex. J); 1997 U.S. Dist. LEXIS 20984, *7 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 114 of 139 Page 8 of 14 (2) In his affidavit, Laponius stated that Gould said "Wilsbach was too old for the job," and expressed concern over the company's image "if customers were to see Mr. Wilsbach running, chasing shoplifters, and possibly having a heart attack." (Aff. of Laponius - Pl. Ex. H); (3) Co-worker, James Konieczny, stated in his affidavit that either Montgomery or Laura Scirocco, an Area Loss Prevention Manager, told him at a Christmas dinner that "they believed Mr. Wilsbach to be too old for the job of store detective." (Aff. of Konieczny at 2 - Pl. Ex. G); and (4) Gould stated in his affidavit that he "recalled Ms. Kircher telling [him] that she believed Robert Wilsbach was 'too old' for his job and that she had concerns about his ability to chase shoplifters due to his age." (Aff. of Gould at P 7 - Pl. Ex. I). I find that these statements either were made by individuals not involved in the decisionmaking process to terminate Wilsbach [*12] or were temporally remote from the time the decision to terminate Wilsbach was made. As recited in the factual background earlier, Uhl, after warning Wilsbach that his absenteeism could result in termination, brought the situation to the attention of Filosa. Filosa and Kircher subsequently terminated Wilsbach for violating the company's absenteeism policy. Filene's Basement presents evidence that Kircher and Filosa did not consult with Honey or Montgomery before making the decision to terminate Wilsbach. Given that only Filosa and Kircher were involved in the immediate and direct decision to terminate Wilsbach, only the fourth comment, purportedly made by Kircher, is pertinent. As non- decisionmakers, the alleged comments of Honey, Gould, Montgomery and/or Scirocco constitute stray remarks and are not probative of overt age animus. 3 [*13] The comment made by Kircher was purportedly made at least six months before the decision to terminate Wilsbach. Gould was terminated from employment at Filene's Basement in April 1994, so any comment he heard from Kircher took place before April 1994. As such, Wilsbach has presented no evidence that the allegedly discriminatory comments made by 3 While there is no evidence that Honey, Gould, and Montgomery were directly involved in the immediate decision to terminate Wilsbach, there is evidence that Honey, after consulting Montgomery and others, decided to place Wilsbach in the Pooling Program which led to his termination. Therefore, I will consider their comments as circumstantial evidence of age discrimination See infra Part III.A.2. various managerial staff related to the decisional process of his termination. Therefore, I find that these comments do not constitute direct evidence and do not create a genuine issue of material fact as to whether age played any role in the decisionmaking process. Although these comments do not comprise direct evidence, I will consider them in the pretext phase of my analysis below. See Sarko v. Penn-Del Directory Co., 968 F. Supp. 1026, 1032 n.6 (E.D. Pa. 1997) (HN8[ ] age related jokes, though temporally remote from the decision to fire plaintiff, may nonetheless be considered as circumstantial evidence). 2. Circumstantial Evidence HN9[ ] Where there is no direct evidence of age discrimination, a plaintiff may still prevail by presenting circumstantial evidence under the burden shifting analysis of McDonnell Douglas. See McDonnell Douglas [*14] Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under a McDonnell Douglas framework, a plaintiff must first present a prima facie case by establishing, by a preponderance of the evidence, that (1) he is over 40 years old, (2) he is qualified for the position in question, (3) he suffered from an adverse employment decision, and (4) his replacement was sufficiently younger to permit an inference of age discrimination. See Lawrence v. National Westminster Bank N.J., 98 F.3d 61, 65-66 (3d Cir. 1996) (citing Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995)). Once the plaintiff satisfies his prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. See 98 F.3d 61 at 66 (citing Sempier, 45 F.3d at 728). Should the defendant successfully carry its burden, the plaintiff then has the burden of proving, by a preponderance of the evidence, that "'the employer's stated reasons were not its true reasons but were a pretext for discrimination.'" See id. (quoting Sempier, 45 F.3d at 728). HN10[ ] A plaintiff may defeat a motion for summary judgment based on the defendant's [*15] proffered nondiscriminatory reason by either showing evidence, directly or circumstantially, that (1) discredits the proffered reasons for termination, or (2) discrimination was more likely than not a motivating or determinative cause of the adverse action. Id. (citing Sempier, 45 F.3d at 731). The plaintiff cannot simply show that the decision was wrong or mistaken, because the factual dispute at issue is not whether the defendant made a correct decision in terminating plaintiff but whether unlawful discrimination motivated that decision. See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir 1994). A plaintiff must be able to show evidence 1997 U.S. Dist. LEXIS 20984, *11 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 115 of 139 Page 9 of 14 of inconsistencies or implausibilities that support an inference that defendant did not act for its stated reasons. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d. Cir. 1993). a. Prima Facie Case In its initial memorandum in support of its motion for summary judgment, Filene's Basement contends that Wilsbach is unable to establish a prima facie case "because he cannot establish that he performed his job satisfactorily nor can he show that similarly-situated employees under the age of 40 were treated any differently." [*16] (Def. Mem. at 20). Filene's Basement applies the incorrect standards for establishing a prima facie case. Nonetheless, I will presume Filene's Basement disputes the second element of the prima facie case -- qualification for the position --, and the fourth element -- replaced by a sufficiently younger employee. See Lawrence, 98 F.3d at 66. Wilsbach worked as a police officer with the Police Department. Also, he worked as a Loss Prevention Officer at Filene's Basement for approximately seven years, during which time he received, except for his last evaluation in 1993, positive overall performance ratings of "Above Average" on four occasions, "Outstanding" on three occasions, and "Good/Satisfactory" on one occasion (See Pl. Ex. C). His overall positive performance evaluations coupled with the fact that he was a police officer leads me to believe that a jury could conclude that he was qualified for the position. See Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995) (finding plaintiff qualified for the position of sales representative having worked in that capacity for the defendant for twenty-three years and having received overall evaluations during [*17] the last five years that translated into competent). Moreover, the Court of Appeals for the Third Circuit generally considers job performance issues at the pretext stage. See DiJoseph v. Metropolitan Life Ins. Co., 1995 U.S. Dist. LEXIS 2508, No CIV.A 94-3445, 1995 WL 89020, at *3 (E.D. Pa. Mar. 1, 1995) (citing Healy v. New York Life Ins. Co., 860 F.2d 1209, 1214 n. 1 (3d Cir.), cert. denied, 490 U.S. 1098, 104 L. Ed. 2d 1004, 109 S. Ct. 2449 (1989) and Billet v. CIGNA Corp., 940 F.2d 812, 826-27 (3d Cir.1991)). Filene's Basement contends that Wilsbach has not offered any evidence to support the prima facie requirement that he was replaced by a younger employee. Wilsbach has presented a list of Loss Prevention Officers who worked at his store or other Filene's Basement locations at the time of his termination. All of those employees were younger than Wilsbach. In fact, the next oldest on the list was 43- years old, eleven years younger than Wilsbach. And, at the store where Wilsbach worked, the next oldest employee was 30-years old, about twenty-five years younger than Wilsbach. (See Pl. Ex. R). It is unclear, however, which employee, if any, actually replaced Wilsbach. HN11[ ] Where a plaintiff's [*18] job is eliminated and he is not replaced, "the employee need only show that he was laid off from a job for which he was qualified while other workers not in the protected class were retained." Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir.1990). Given that the burden of proof for a prima facie case is "not onerous," Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), Healy, 860 F.2d at 1214 n.1, I find that Wilsbach has presented sufficient evidence to satisfy the fourth element of his prima facie case, whether it be that he was replaced by any of the employees named on that list or whether he was laid off while other workers not in the protect class were retained Therefore, I find that Wilsbach has satisfied his prima facie case. b. Legitimate, Nondiscriminatory Reasons HN12[ ] By establishing a prima facie case, a plaintiff eliminates the most common nondiscriminatory reasons for the adverse employment action and creates a presumption of discrimination. Burdine, 450 U.S. at 253-54. Once a prima facie case has been established, the defendant must articulate a legitimate, nondiscriminatory reason for [*19] the employer's action The burden upon defendant is minimal. See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Filene's Basement maintains that Wilsbach was terminated because of his excessive absenteeism, as revealed by the written and oral warnings. I conclude that defendant has adequately satisfied its relatively light burden of articulating a legitimate, nondiscriminatory reason for its employment decision. The burden now rebounds to Wilsbach to show that defendants' proffered reasons are pretextual. c. Analysis of Pretext HN13[ ] To defeat the motion for summary judgment of defendant, plaintiff must "'point to some evidence, direct or circumstantial, from which a factfinder could 1997 U.S. Dist. LEXIS 20984, *15 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 116 of 139 Page 10 of 14 reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action'" Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en banc) (quoting Fuentes, 32 F.3d at 764), cert. denied, 138 L. Ed. 2d 1031, 117 S. Ct. 2532 (1997). In evaluating the proffered reasons of defendant for terminating plaintiff, it is [*20] not the role of court to determine whether the employer was "wise, shrewd, prudent, or competent." Fuentes, 32 F.3d at 765. Rather, plaintiff must point the court to "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, . . . and hence infer that the employer did not act for the asserted non-discriminatory reasons." Id. (quotations and internal citations omitted). I find that there are genuine issues of material fact which preclude the entry of summary judgment. While Wilsbach presents no direct evidence of discrimination, and his circumstantial evidence is not overpowering, when the facts are viewed in the light most favorable to Wilsbach and all reasonable inferences are drawn in his favor, it is clear that summary judgment is inappropriate. The general issues of material facts fall into two categories: (1) the alleged agist comments by managerial staff at Filene's Basement; and (2) whether the decision to assign Wilsbach to work at the Center City store and to terminate Wilsbach on account of absenteeism [*21] was based on age discrimination. HN14[ ] Stray remarks by non-decisionmakers or by a decisionmaker unrelated to the decision process are insufficient to constitute direct evidence of age discrimination, may provide some relevant evidence of discrimination. See Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 333 (3d Cir. 1995) (discriminatory statements by non-decisionmakers properly used to build a circumstantial case of discrimination); Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995) (same). I find that the comments allegedly made by Honey, Gould, Kircher, and Montgomery or Scirocco discussed supra create a genuine issue of material fact that Wilsbach was the subject of age discrimination. There is evidence that these managers were involved with and/or consulted about the decision to place Wilsbach in the Pooling Program which led to his termination and had, at various points, discussed with one another Wilsbach's low apprehension rates. So, while these comments, all of which related to age on their face, may not meet the high threshold of direct evidence, they cannot be ignored. I find that a reasonable jury could conclude that these comments to be sufficient [*22] evidence of age discrimination. Wilsbach also submits the following affidavits in support of his contention that Filene's Basement tried to get him to resign. Gould said to me and to Mr Wilsbach that he believed Mr. Wilsbach was too old for the job. . . . Gould ordered me to harass Mr. Wilsbach in a number of ways over an extended period of time in order to force him to quit. (Pl. Ex. H - Aff of Laponius) The pressure on me to get rid of Mr. Wilsbach from both Scirocco and Montgomery continued up to the point that I left Filene's Basement to assume an employment offer with another company. I was instructed to schedule Mr. Wilsbach every Sunday in an attempt to get him to resign. (Pl. Ex. G - Aff. of Konieczny). These comments are similar to those made in other cases where summary judgment was denied. In Torre v. Casio, Inc., a fifty-two year old plaintiff sued his former employer under the ADEA after he was transferred to a new position and then terminated during a reduction in force. 42 F.3d 825, 828 (3d Cir. 1994). The Court of Appeals for the Third Circuit reversed the district court's grant of summary judgment in favor of the defendant, in part, [*23] because the plaintiff provided sufficient evidence upon which a reasonable jury could conclude that the plaintiff was being set up for termination when he was transferred to a job that did not exist. Id. at 835 Such evidence included comments by a vice-president to a supervisor that "he wanted to put [plaintiff] in a box" and to put [plaintiff] under a microscope, [to] wrap him so tight that he would have to screw up." Id. at 833; see also Sarko v. Penn-Del Directory Co., 968 F. Supp. 1026, 1033 (E.D. Pa. 1997) (summary judgment denied where supervisor, who had made age-related jokes in the past, told manager to "build a case against" plaintiff so that plaintiff could be fired). Wilsbach argues that, in an effort to get him to quit or provide a reason to fire him, Filene's Basement assigned him to work shifts at the Center City store under the Pooling Program, knowing that it would interfere with his employment at the Police Department. At the time of this scheduling, Wilsbach gave Honey a letter from Lieutenant James P. Leary at the Police Department which stated that the Police Department 1997 U.S. Dist. LEXIS 20984, *19 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 117 of 139 Page 11 of 14 would not permit Wilsbach to make court appearances in a case originating [*24] in a jurisdiction other than Abington Township on the Police Department's time. (Pl. Ex. B) In other words, Wilsbach would have to use his vacation time to appear in court in Center City from apprehensions arising in that location. (Pl. Ex. B - Aff. of Leary P 4). Even if Wilsbach intended to use his vacation time for these court appearances, he would still need permission from the Police Department to do so, which may not have been granted if he was needed to work a scheduled shift. (Pl. Ex. B - Aff. of Leary PP 3, 5). In addition, Wilsbach had made clear at the time of his hiring that he would not be required to travel to other stores. (Pl. Ex. A - Aff. of Wilsbach at P 6). In sum, I find that some of the managerial staff of Filene's Basement, who had allegedly made agist comments about Wilsbach or allegedly expressed a desire to "get rid of him," were involved in or consulted about or approved of, either directly or indirectly, the decision to assign him to the Pooling Program and the decision to ultimately terminate him. The alleged agist comments made by several managers and the assigning of Wilsbach to the Center City store in contravention to the conditions of his employment [*25] and the Police Department policy, plus the fact that Wilsbach had received regular raises and positive evaluations rather consistently, could lead a reasonable factfinder to "disbelieve the employer's articulated legitimate reasons" or "believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action" Therefore, I will not grant summary judgment on Count I. 4 B. Breach of Contract I find that Wilsbach's status as an "at-will" employee precludes a successful breach of contract claim. HN15[ ] "Under Pennsylvania law, it is an established general principle that in an employment relationship, an employer may discharge an employee with or without cause, at pleasure, unless retrained [*26] by some contract." Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1341 (3d Cir. 1990) (internal quotations and citation omitted), cert. denied, 499 U.S. 966, 113 L. Ed. 2d 660, 111 S. Ct. 1597 (1991). The at-will employment 4 Filene's Basement argues that sixteen detectives were placed in the Pooling Program for poor apprehension rates, thirteen of which were younger than Wilsbach. While such evidence may weaken Wilsbach's claim at trial, it does not warrant a summary judgment in its favor. doctrine applies absent "clear evidence that the parties intended to contract for a definite period." Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 660 (3d Cir. 1990) (internal quotations and citation omitted). "Whether evidence is sufficient to overcome the at-will presumption is a question of interpretation normally left to the court." Id. HN16[ ] An employee may rebut the presumption of at-will employment with evidence that the parties intended to contract for a definite period, see Greene v. Oliver Realty, Inc., 363 Pa. Super. 534, 526 A.2d 1192, 1196 (Pa. Super.), appeal denied, 536 A.2d 1331 (Pa. 1987), or that the employee gave consideration beyond those services for which she was hired, Gorwara v. AEL Indus., Inc., 784 F. Supp. 239, 243 (E. D. Pa 1992). Case law finding additional consideration sufficient to overcome the at-will presumption include: Bravman v. Bassett Furniture Indus., Inc., 552 F.2d 90, 93-94 (3d Cir ) (furniture [*27] manufacturer's representative gave up representing of all other furniture manufacturers in return for exclusive right to represent defendant, during employment plaintiff hired associate at his own expense and guaranteed the credit worthiness of his customers), cert. denied, 434 U.S. 823, 54 L. Ed. 2d 80, 98 S. Ct. 69 (1977), Lucacher v. Kerson, 158 Pa. Super. 437, 45 A.2d 245, 248 (Pa. Super.) (employee underwent substantial hardship in moving his family in order to take a new position), aff'd, 355 Pa. 79, 48 A.2d 857 (Pa 1946), Greene, 526 A.2d at 1201-02 (employee agreed to work for less than union pay scale in exchange for a contract of employment of life). Wilsbach has presented no sufficient evidence to overcome the at-will presumption At the time of his hiring for part-time store detective work in 1986 (age 45), he was promised full-time employment at Filene's Basement if he retired from the Police Department earlier than planned, at age 55 He was terminated from Filene's Basement at age 54 and is still employed at the Police Department. From the information submitted by Wilsbach, I can discern no circumstances which create a material issue of fact suggesting [*28] that an express or implied contract existed with Filene's Basement that would overcome the at-will presumption. First, I find that there is no evidence of an express contract with definite terms as to the length of employment, salary, or cause for termination. Second, the agreement created at the time of his hiring is not a current, enforceable contract and never actually went into effect. To date, Wilsbach has not retired from the Police Department. And, he was 1997 U.S. Dist. LEXIS 20984, *23 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 118 of 139 Page 12 of 14 terminated from Filene's Basement before he was 55 years of age. Thus, there exists no enforceable agreement for full-time employment. Wilsbach argues that Filene's Basement, by terminating Wilsbach, failed to fulfill a condition precedent to the contract, and cannot now take advantage of this action. The two cases relied on by Wilsbach in support of this proposition, however, are not helpful 5 as they involve contracts (not employment) that have already been formed and taken effect. Third, Wilsbach has not provided any consideration to overcome the at-will presumption. Wilsbach argues that his promise to retire from the Police Department seven years earlier than intended and thus forego benefits and salary as well as obtaining [*29] a lesser pension constitutes consideration. This argument fails because Wilsbach had never given up his work at the Police Department in order to work full-time at Filene's Basement, and thus has not provided any consideration in this regard. [*30] The intent of the parties to create nothing more than an at-will employment arrangement is further manifested by Wilsbach's deposition testimony where he acknowledges that he could have retired from the Police Department later than age 55 and he could have quit his employment at Filene's Basement at any time. (Aff. of Matz - Ex. A containing Dep. of Wilsbach at 162, 163). Accordingly, I will grant summary judgment in favor of Filene's Basement and Montgomery and against Wilsbach on the breach of contract claim in Count II. C. Intentional Infliction of Emotional Distress In his complaint, Wilsbach alleges a host of acts by defendants that, according to Wilsbach, constitute extreme and outrageous conduct. 6 The conduct 5 Wilsbach relies on Rainier v. Champion Container Co., 294 F.2d 96 (3d Cir 1961) (involving brokerage agreement for the sale of the capital stock of a corporation and holding in part that business broker was entitled to commission from corporation even though the board of directors of the prospective buyer failed to approve the purchase where the corporation's president wrongfully refused to permit verification of the balance sheet, which was the obstruction preventing approval) and Commonwealth Dep't of Transp. v. W.P. Dicerkson & Son, Inc., 42 Pa. Commw. 359, 400 A.2d 930, 933 (Pa Commw 1979) (where parties entered into written contract for the construction of highway and bridges, and contractor was unable to complete contract due to other party's rejection of cracked beams, contractor was compensated for additional work and expenses). Wilsbach alleges does not sustain a cause of action for intentional infliction of emotional distress. HN17[ ] To present a successful claim, "the conduct complained of must be of an extreme or outrageous type . . . . so extreme in degree as to go beyond all possible bounds of decency, and be regarded as atrocious, and utterly intolerable in a civilized society." Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988) (internal quotations and citations omitted), [*31] cert. denied, 498 U.S. 811, 112 L. Ed. 2d 23, 111 S. Ct. 47 (1990). HN18[ ] "It is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Id. "While loss of employment is unfortunate and unquestionably causes hardship, often severe, it is a common event and cannot provide a basis [for a successful claim]." Id. (internal quotations omitted). I find, as a matter of law that the allegations of Wilsbach are not so unique to pass the high threshold of "extreme and outrageous" conduct. [*32] In addition to the conduct not being able to be characterized as "extreme and outrageous," defendants alternatively assert that the exclusivity provision of the Pennsylvania Workers' Compensation Act ("WCA") bars a claim for intentional infliction of emotional distress. While there is case law to support this argument, 7 I 6 These acts include "(a) the falsification of employee evaluations; (b) frequently changing Mr. Wilsbach's schedule with less that [sic] 24 hours notice, (c) giving Mr Wilsbach a quota of apprehensions to meet, when no other employees of Filene's Basement were given quotas, (d) forcing Mr Wilsbach to work Sundays when he was originally promised that he would not have to work Sundays, (e) forcing Mr Wilsbach to work at the Center City location of Filene's Basement, despite the fact that it would conflict with Mr Wilsbach's position with the Abington Township Police Department and could jeopardize his position with the Police Department; (f) subjecting Mr Wilsbach to vehement criticisms and verbal abuse in front of other employees, (g) placing Mr. Wilsbach under surveillance; (h) keeping a file on Mr Wilsbach's conversations with other employees, (i) telling Mr. Wilsbach's supervisors to get rid of him, whatever it took, (j) refusing to accept a favorable evaluation, and ordering a manager to write an untruthful, unfavorable one, (k) placing Mr Wilsbach on Job Jeopardy despite a favorable evaluation; (1) cutting Mr. Wilsbach's schedule from thirty hours per week to fifteen hours per week, (m) terminating Mr. Wilsbach after six weeks of the probationary period, despite promising him a three month probationary period." (Amended Complaint P 72). 7 See Poyser v. Newman and Co., 514 Pa. 32, 522 A.2d 548, 1997 U.S. Dist. LEXIS 20984, *28 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 119 of 139 Page 13 of 14 need not reach this issue as I have concluded that the defendants' actions do not constitute extreme or outrageous conduct. [*33] I conclude there is no cause of action for intentional infliction of emotional distress in this lawsuit. Therefore, I will enter summary judgment in favor of all defendants on Count III. D. Loss of Consortium HN19[ ] Under Pennsylvania law, a wife's consortium claim derives only from the injured husband's right to recover in tort. See Little v. Jarvis, 219 Pa. Super. 156, 280 A.2d 617, 620 (1971). The only tort claim alleged by Wilsbach is for intentional infliction of emotional distress. Given that summary judgment will be entered in favor of defendants on that claim, it follows that Mrs. Wilsbach's consortium claim, which is derivative of the intentional infliction claim, must also fail. See Murray v. Commercial Union Ins. Co., 782 F.2d 432, 438 (3d Cir. 1986) (summarily dismissing consortium claim of plaintiff's spouse in absence of tort liability on part of defendants), Verde v. Philadelphia, 862 F. Supp. 1329, 1337 n.5 (E.D. Pa. 1994) (noting that "the loss of consortium . . . is deemed to be derivative only of the claim for intentional infliction of emotional distress . . . . Title VII . . . [does not] allow other than a personal right of action"); Goldberg v. [*34] Philadelphia, 1994 U.S. Dist. LEXIS 8969, CIV.NO.91-7575, 1994 WL 313030, at *13 (E.D. Pa. June 29, 1994) (HN20[ ] "Title VII does not provide for loss of consortium damages."). "Moreover, HN21[ ] there is no authority to permit spousal recovery for loss of consortium on violations of other spouse's civil rights." Quitmeyer v. SEPTA, 740 F. Supp. 363, 370 (E.D. Pa. 1990). I conclude that the loss of consortium claim in Count IV fails in its entirety against all defendants named in this lawsuit. Accordingly, I will enter summary judgment in favor of all defendants on Count IV. IV. CONCLUSION 551 (Pa 1987) (holding that exclusivity provision of WCA bars a common law cause of action against an employer for an intentional tort) Plaintiffs cite two cases, Schweitzer v. Rockwell International, 402 Pa. Super. 34, 586 A.2d 383, 389 (Pa Super 1990), appeal denied, 600 A.2d 954 (Pa 1991) and Dunn v. Warhol, 778 F. Supp. 242 (E.D. Pa. 1991), where employees subjected to sexual harassment fell within the exception to WCA's exclusivity provision and were thereby permitted to bring a claim for intentional infliction of emotional distress Those cases, however, are of doubtful applicability to the factual circumstances of the case at bar. For the foregoing reasons, I will enter summary judgment in favor of all defendants and against Robert W. Wilsbach and his wife, Cora, on Counts II, III, and IV. However, because there is a genuine issue of material fact in dispute as to whether Filene's Basement discriminated against Wilsbach based on his age, I will not grant summary judgment on Count I. An appropriate Order follows. ORDER AND NOW, on this 30th day of December, 1997, upon consideration of the motion of defendants Filene's Basement, Inc., Gene Montgomery, and Frank Honey for summary judgment pursuant to Rule 56(c) of the Federal Rules of [*35] Civil Procedure (Document No. 25), and the responses of all parties thereto, and having reviewed all submissions of the parties, including depositions, affidavits, and attached exhibits, and for the reasons outlined in the foregoing memorandum, it is hereby ORDERED that the motion is GRANTED IN PART AND DENIED IN PART in accordance with the following 1. SUMMARY JUDGMENT IS ENTERED on Count II (breach of contract), Count III (intentional infliction of emotional distress), and Count IV (loss of consortium) in favor of defendants Filene's Basement, Inc., Gene Montgomery, Frank Honey, and James Gould and against plaintiffs Robert W. Wilsbach and Cora Wilsbach 2. The motion is DENIED as to Count I (age discrimination) against Filene's Basement, Inc. IT IS FURTHER ORDERED that Robert W. Wilsbach and Filene's Basement, Inc. shall submit a joint report to the Court no later than January 20, 1998 as to the status of settlement. If these parties need the assistance of the Court in facilitating settlement negotiations, the report should so indicate. Otherwise, these parties should be prepared to have the case listed for trial. LOWELL A. REED, [*36] JR., J. 1997 U.S. Dist. LEXIS 20984, *32 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 120 of 139 Page 14 of 14 Table1 (Return to related document text) Table1 (Return to related document text) End of Document 1997 U.S. Dist. LEXIS 20984, *36 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 121 of 139 Caution As of: May 17, 2017 5:43 PM Z Goldberg v. City of Philadelphia United States District Court for the Eastern District of Pennsylvania June 29, 1994, Decided ; June 29, 1994, Filed, Entered CIVIL ACTION No. 91-7575 Reporter 1994 U.S. Dist. LEXIS 8969 *; 65 Empl. Prac. Dec. (CCH) P43,221 MARK J. GOLDBERG and RONNI GOLDBERG v. CITY OF PHILADELPHIA, and SERGEANT WALTER COUGHLIN and COMMISSIONER WILLIE WILLIAMS and CHIEF INSPECTOR WILLIAM BERGMAN and INSPECTOR JOSEPH O'CONNOR and LIEUTENANT JOSEPH WRIGHT and LIEUTENANT JAMES McCARTY and SERGEANT MICHAEL WEAVER and OFFICER WILLIAM GRAY, individuals acting in their official capacities Case Summary Procedural Posture Plaintiffs, a former employee and his wife, filed an action against defendants, a city, supervisory officers, and coworkers, alleging religious harassment resulting in demotion and constructive discharge and loss of consortium. Defendants filed a motion for summary judgment. Overview The employee claimed that he was subjected to various forms of harassment and discrimination based on the fact that he was Jewish; that the supervisory officers knew about but failed to address the discrimination; that the discrimination resulted in a demotion, constructive discharge, and physical and emotional distress; and that defendants unlawfully searched his trash. The wife sought consortium damages. The court held that summary judgment was appropriate for counts based on 42 U.S.C.S. § 1983 where alleged spoken threats were not actionable, the employee failed to provide evidence of religious harassment, he failed to demonstrate any basis upon which his alleged liberty interest was affected under the Due Process Clause, and there was insufficient evidence upon which to determine whether the employee retained a reasonable expectation of privacy in the contents of his trash. The court found that the employee provided sufficient evidence to make out a prima facie case against the city under Title VII, and that he rebutted the city's alleged non-discriminatory reasons for demotion. Defendants who were supervisors of the employee were proper parties with the city under such claim. Outcome The court denied the motion as to the city and supervisory officers of the employee with regard to the Title VII claim, and limited the claim to constructive discharge against the officers and constructive discharge and retaliatory demotion against the city. The court granted summary judgment as to all other claims and parties. LexisNexis® Headnotes Civil Procedure > ... > Summary Judgment > Burdens of Proof > Movant Persuasion & Proof Civil Procedure > ... > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Legal Entitlement Civil Procedure > ... > Summary Judgment > Entitlement as Matter of Law > Materiality of Facts HN1[ ] Under Fed. R. Civ. P. 56(c), summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A court is required, in resolving a motion Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 122 of 139 Page 2 of 18 for summary judgment pursuant to Rule 56, to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. In making this determination, the evidence of the nonmoving party is to be believed, and the district court must draw all reasonable inferences in the nonmovant's favor. Furthermore, while the movant bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact, Rule 56(c) requires the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Civil Rights Law > ... > Section 1983 Actions > Elements > General Overview Civil Rights Law > ... > Elements > Color of State Law > General Overview Civil Rights Law > ... > Section 1983 Actions > Elements > Protected Classes Civil Rights Law > ... > Section 1983 Actions > Elements > Protected Rights HN2[ ] To state a viable claim under 42 U.S.C.S. § 1983, an individual must allege facts that constitute a deprivation of a constitutional right, privilege or immunity under color of state law. Under § 1983, a Court's inquiry is two-fold. First, the Court must determine whether the allegations rise to the level of a constitutional violation. Many harms, though caused by a state actor, do not fall within the scope of § 1983, for § 1983 does not turn the Fourteenth Amendment into a font of tort law that supersedes the tort systems already available under individual state laws. Second, the Court must determine whether the Defendants in question were persons acting under color of state law. Civil Rights Law > ... > Elements > Color of State Law > Participation as State Action Civil Rights Law > ... > Elements > Color of State Law > State Agents Civil Rights Law > ... > Elements > Color of State Law > State-Authorized Actions HN3[ ] See 42 U.S.C.S. § 1983. Constitutional Law > ... > Fundamental Rights > Search & Seizure > Scope of Protection HN4[ ] The constitutional right to bodily security guarantees an individual's right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of the court. Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope HN5[ ] Fear from spoken words is not actual infringement of constitutional right and not actionable under 42 U.S.C.S. § 1983. Constitutional Law > Equal Protection > Nature & Scope of Protection HN6[ ] The Equal Protection Clause of the Fourteenth Amendment provides that the government will treat similarly situated persons similarly. Though not an absolute guarantee of equal treatment, it prohibits any difference that is deliberately based upon an unjustified standard such as race, religion or other arbitrary classification. Constitutional Law > Equal Protection > General Overview Constitutional Law > Equal Protection > Nature & Scope of Protection HN7[ ] Plaintiffs claiming a violation of their right to equal protection must prove the existence of "purposeful discrimination." To do so, a plaintiff must demonstrate that he received different treatment from that received by other individuals similarly situated. Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope Constitutional Law > Equal Protection > Nature & Scope of Protection HN8[ ] The mere fact that religious harassment 1994 U.S. Dist. LEXIS 8969, *8969 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 123 of 139 Page 3 of 18 alleged to be in violation of the Equal Protection Clause also may violate Title VII does not bar a 42 U.S.C.S. § 1983 claim based on equal protection. Civil Rights Law > ... > Elements > Color of State Law > State Agents Civil Rights Law > ... > Elements > Color of State Law > State-Authorized Actions Civil Rights Law > ... > Section 1983 Actions > Scope > Government Actions Civil Rights Law > ... > Scope > Law Enforcement Officials > General Overview HN9[ ] A plaintiff's failure to sue individuals in their individual capacities mandates additional analysis in an equal protection claim. To the extent that the complaint attempts to state 42 U.S.C.S. § 1983 claims against individual Defendants in their official capacities, the action operates as a claim against the government entity. Thus, the liability of the government entity is the determinative inquiry in a suit against individuals in their official capacities. Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope Constitutional Law > Equal Protection > Nature & Scope of Protection HN10[ ] Supervisory liability can be based on "actual knowledge and acquiescence" on the part of a supervisor in an equal protection claim. Constitutional Law > Substantive Due Process > Deprivation of Economic Interests Constitutional Law > Substantive Due Process > Scope HN11[ ] The Due Process Clause requires some kind of a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment. In order to have a property interest that is protected by procedural due process, a plaintiff must first establish that he had a legitimate claim of entitlement to his position. Property interests are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law, rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Constitutional Law > Substantive Due Process > Scope HN12[ ] A terminated employee's reputational liberty may be implicated if a public employer, in discharging the employee, publicly publishes some false statement of a stigmatizing nature concerning the basis for the employee's discharge. Constitutional Law > ... > Fundamental Rights > Search & Seizure > General Overview Constitutional Law > ... > Fundamental Rights > Search & Seizure > Scope of Protection Criminal Law & Procedure > Search & Seizure > General Overview HN13[ ] The Fourth Amendment, which protects individuals from illegal searches and seizures, applies to states through the Fourteenth Amendment. The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const., amend. IV. The protections of the Fourth Amendment apply in the civil as the criminal context. Under Fourth Amendment jurisprudence, a "search" occurs when an individual's expectation of privacy, which society would recognize as reasonable, is infringed. A "seizure" of property occurs where there is some meaningful interference with an individual's possessory interest in that property. Constitutional Law > ... > Fundamental Rights > Search & Seizure > General Overview Constitutional Law > ... > Fundamental Rights > Search & Seizure > Scope of Protection HN14[ ] What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. 1994 U.S. Dist. LEXIS 8969, *8969 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 124 of 139 Page 4 of 18 Constitutional Law > ... > Fundamental Rights > Search & Seizure > General Overview Constitutional Law > ... > Fundamental Rights > Search & Seizure > Scope of Protection HN15[ ] Courts routinely consider the proximity of the trash in question in a Fourth Amendment challenge to public areas such as the sidewalk or the street in order to determine whether the owners retained a reasonable expectation of privacy in the contents of the trash. Merely because trash is located within the curtilage of an owner's property does not guarantee that the owner has a reasonable expectation of privacy in the contents of the trash. Considerations such as accessibility of the trash to the public, and evidence indicating an intent to retain some control over or interest in the discarded trash are also routinely assessed. Civil Rights Law > Protection of Rights > Immunity From Liability > Respondeat Superior Distinguished Governments > Local Governments > Claims By & Against Governments > Local Governments > Employees & Officials Governments > State & Territorial Governments > Claims By & Against Governments > State & Territorial Governments > Employees & Officials HN16[ ] The doctrine of respondeat superior or vicarious liability will not attach under 42 U.S.C.S. § 1983 for the acts of employees of a local government. A municipality cannot be held liable solely because it employs a tortfeasor. Only where an official municipal policy or custom is itself the "moving force" behind the constitutional deprivation can a municipality be liable under § 1983. Civil Rights Law > Protection of Rights > Immunity From Liability > Respondeat Superior Distinguished Civil Rights Law > ... > Section 1983 Actions > Scope > Government Actions Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope HN17[ ] The policy or custom requirement intends to prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers. Government policy consists of "an official proclamation, policy or edict" issued by a "decisionmaker possessing final authority to establish policy with respect" to the subject matter in issue. Alternatively, a municipality may be held liable for its failure to take action to stop the harassment if there is a demonstration of "deliberate indifference" to the harassment. Additionally, the deliberate indifference must be shown to have caused the constitutional violation. Civil Rights Law > ... > Section 1983 Actions > Scope > Government Actions Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope HN18[ ] A course of conduct is also to be considered a custom when such practices of state officials are so permanent and well settled as to virtually constitute law. Civil Rights Law > Protection of Rights > Immunity From Liability > Respondeat Superior Distinguished Civil Rights Law > ... > Section 1983 Actions > Scope > Government Actions Civil Rights Law > Protection of Rights > Section 1983 Actions > Scope HN19[ ] In evaluating liability of a municipality, the Court must determine, based on state law, which official has final unreviewable discretion to make a decision or take an action. The question of who is a policymaker is one of state law. Civil Rights Law > ... > Procedural Matters > Federal Versus State Law > Exhaustion Doctrine Labor & Employment Law > ... > Title VII Discrimination > Scope & Definitions > General Overview HN20[ ] A court has jurisdiction over a Title VII claim only if it was first filed with the Equal Employment Opportunity Commission, and the agency thereafter issues a right to sue letter. Evidence > Burdens of Proof > Preponderance of Evidence 1994 U.S. Dist. LEXIS 8969, *8969 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 125 of 139 Page 5 of 18 Labor & Employment Law > Discrimination > General Overview Labor & Employment Law > ... > Evidence > Burdens of Proof > Burden Shifting Labor & Employment Law > ... > Disparate Treatment > Evidence > Burdens of Proof HN21[ ] Absent direct evidence of discrimination, a plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's demotion or discharge. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Labor & Employment Law > ... > Disparate Treatment > Evidence > Burdens of Proof Labor & Employment Law > ... > Religious Discrimination > Burdens of Proof > Employee Burdens Labor & Employment Law > ... > Religious Discrimination > Scope & Definitions > General Overview HN22[ ] 42 U.S.C.S. § 2000e-2 states that it is an unlawful employment practice for any employer to (1) discharge any individual, or otherwise to discriminate against any individual because of such individual's religion, or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's religion. To establish a prima facie case, an employee must show that he: (1) was a member of a protected class; (2) was qualified for the position; (3) was constructively discharged and/or a victim of a retaliatory demotion; and (4) others not in the protected class were treated more favorably. Labor & Employment Law > Discrimination > Retaliation > Burdens of Proof Labor & Employment Law > ... > Retaliation > Elements > General Overview HN23[ ] To state a retaliation claim under Title VII, a plaintiff must show that he had a reasonable belief that his employer was engaged in an unlawful employment practice and that the employer retaliated against him for protesting against that practice. Labor & Employment Law > Discrimination > Title VII Discrimination > General Overview Labor & Employment Law > ... > Title VII Discrimination > Scope & Definitions > General Overview HN24[ ] When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive so as to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated. Labor & Employment Law > ... > Religious Discrimination > Burdens of Proof > General Overview Labor & Employment Law > ... > Religious Discrimination > Burdens of Proof > Employee Burdens Labor & Employment Law > ... > Religious Discrimination > Scope & Definitions > General Overview HN25[ ] To demonstrate the existence of a hostile environment due to religious discrimination, an employee must establish the existence of the five following elements: (1) the employee suffered intentional discrimination because of his religion; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same religion in that position; and (5) the existence of respondeat superior liability. Labor & Employment Law > Discrimination > Actionable Discrimination HN26[ ] In determining whether an employer is liable for a hostile environment, a Court must look to agency principles for guidance in this area. According to these principles, liability exists where the defendant knew or should have known of the harassment and failed to take prompt remedial action. If a plaintiff proves that management-level employees had actual or constructive knowledge about the existence of the hostile environment and failed to take prompt and adequate remedial action, the employer will be liable. 1994 U.S. Dist. LEXIS 8969, *8969 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 126 of 139 Page 6 of 18 Civil Procedure > ... > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof Evidence > Inferences & Presumptions > Inferences Labor & Employment Law > Discrimination > Actionable Discrimination HN27[ ] At the summary judgment level in an employment discrimination case the plaintiff does not have to prove that the reason for a transfer or discharge is pretextual. The plaintiff may preclude summary judgment by producing evidence from which the trier of fact reasonably could draw an inference of discrimination. Business & Corporate Compliance > ... > Title VII Discrimination > Scope & Definitions > Employers HN28[ ] Only individuals with "supervisory authority" over an employee are properly subject to a Title VII claim. The term "employer" under Title VII is construed in a functional sense to encompass persons who are not employers in conventional terms, but who nevertheless control some aspect of an individual's compensation, terms, conditions or privileges of employment. Business & Corporate Compliance > ... > Discrimination > Harassment > National Origin Harassment Labor & Employment Law > Discrimination > National Origin Discrimination > Scope & Definitions HN29[ ] Under the civil component of Pennsylvania's ethnic intimidation statute, 42 Pa. Cons. Stat. § 8309, a person commits the offense of ethnic intimidation if, with malicious intention toward the religion of another individual, he commits any of a number of specific offenses, including harassment by communication or address. Business & Corporate Compliance > ... > Discrimination > Harassment > National Origin Harassment Labor & Employment Law > Discrimination > National Origin Discrimination > Scope & Definitions Labor & Employment Law > Discrimination > National Origin Discrimination > Remedies HN30[ ] See 18 Pa. Cons. Stat. § 8309. Labor & Employment Law > Discrimination > Harassment > General Overview HN31[ ] See 18 Pa. Cons. Stat. § 5504. Labor & Employment Law > Discrimination > General Overview HN32[ ] The Pennsylvania Human Relations Act (PHRA) provides an exclusive remedy for the resolution of discrimination complaints in Pennsylvania. 43 Pa. Cons. Stat. § 962. However, before an individual can invoke the protection and relief available under the PHRA, the individual must strictly follow the terms of the Act. Under the PHRA, a civil action may generally not be commenced until the claim is first presented to the Pennsylvania Human Rights Commission. Labor & Employment Law > ... > Title VII Discrimination > Remedies > General Overview HN33[ ] Title VII does not provide for loss of consortium damages. Counsel: [*1] FOR MARK J. GOLDBERG, RONNI GOLDBERG, PLAINTIFFS: FREDERICK C. TIMM, PHILADELPHIA, PA. FOR CITY OF PHILADELPHIA, WALTER COUGHLIN, DEFENDANTS: DONNA J. MOUZAYCK, CITY OF PHILA LAW DEPT - DIVISIONAL DEPUTY CITY SOLICITOR, PHILA, PA. DAVID J. DOMZALSKI, CITY OF PHILADELPHIA, PHILA, PA. FOR WILLIE WILLIAMS, WILLIAM BERGMAN, CHIEF INSPECTOR, JOSEPH O'CONNOR, INSPECTOR, JOSEPH WRIGHT, LIEUTENANT, JAMES MCCARTY, LIEUTENANT, MICHAEL WEAVER, SERGEANT, WILLIAM GRAY, OFFICER, DEFENDANTS: DAVID J. DOMZALSKI, CITY OF PHILADELPHIA, PHILA, PA. FOR SHOMRIM OF PHILADELPHIA, MOVANT: HOWARD LEBOFSKY, PHILADELPHIA, PA. Judges: KELLY 1994 U.S. Dist. LEXIS 8969, *8969 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 127 of 139 Page 7 of 18 Opinion by: JAMES McGIRR KELLY Opinion MEMORANDUM J. M. KELLY, J. Presently before the Court is Defendants' Motion for Summary Judgment. Mark Goldberg, a former member of the Philadelphia Police Department ("the Police Department"), has brought this action to redress alleged violations of his federal and state law rights resulting from religious harassment by other members of the Police Department. Essentially, Goldberg has filed an eleven-count complaint against the City of Philadelphia ("the City") and various individual defendants in their official capacities, alleging that he was harassed [*2] by supervisors and co-workers due to his Jewish religion. He alleges that the harassment resulted in his demotion, and eventually a constructive discharge from the Police Department. In addition, his wife, Ronni Goldberg, seeks damages for loss of consortium. Each of the nine defendants has apparently been sued under each of the eleven stated counts. FACTS Mark Goldberg was a Philadelphia police officer for approximately eleven (11) years. In 1985, he was transferred from the Thirty-Fifth Police District to a plainclothes unit, known as the Organized Crime/Intelligence Unit. 1 He claims that he was continually harassed on the job because of his Jewish religion. The following are allegations of Goldberg against various Defendants. On or about December 10, 1989, Defendant Sergeant Walter Coughlin choked Goldberg for [*3] several seconds around the neck. Goldberg claims that the "assault was motivated by ethnic prejudice against plaintiff as a Jew." Second Amended Compl., P 8. Coughlin also allegedly subjected Goldberg to the following conduct: a) Defendant Coughlin frequently said to Goldberg, "Your people killed our lord." 1 At the time of the transfer, this unit was named the Major Investigations Division. This unit conducted various types of criminal investigations, including surveillance of organized crime groups. b) For several years, Defendant Coughlin repeatedly referred to Goldberg as "the f---ing Jew" and "the bagel"; c) Defendant Coughlin and others having supervisory authority over Goldberg gave him a signed certificate vilifying him personally; 2 and d) After Goldberg donated clothing to the homeless, Coughlin allegedly stated, "You Jews are always worrying about taking care of the niggers -- you should donate them to the Saint Benedictine." Second Amended Compl., PP 11, 16. [*4] Goldberg first complained about religious harassment to Defendant Lieutenant Joseph Wright. Goldberg claims that this complaint resulted in his transfer to another part of the Organized Crime Unit, which investigated radical groups and separated Goldberg from Coughlin. After Defendant Sergeant Michael Weaver was transferred to this unit as a supervisor, Goldberg claims that the religious harassment continued. Goldberg alleges that Weaver left a note in a book related to cattle ranching which was placed on Goldberg's desk, stating: "GOLDBERG YOUR [sic] JEWISH YOU MAKE HOTDOGS AND SAUAGE [sic] OUT OF COWS NOT RANCH THEM." Second Amended Compl., P 15. He also claims that Weaver, in reference to a "chincy" cheese sandwich, would say, "This is kind of like a sandwich that your people would make." Dep. of Mark Goldberg at 112. In addition, Weaver also allegedly took part in the following conduct: i) interrupted Goldberg's telephone conversations without excusing himself; ii) pushed Goldberg's work materials across a desk without warning or excuse; iii) turned his back to Goldberg while addressing the squad of which Goldberg was a member; iv) told Goldberg without basis, "You can't [*5] be trusted."; and v) presented Goldberg with an unjustified negative memo. Second Amended Compl., P 11. Goldberg also claims that Wright frequently told him that 2 Goldberg claims that the "Asshole of the Month" award was given to him because of his Jewish religion. Defendants counter that the award was a joke, and was given because someone made an inappropriate gaffe or statement when performing a work assignment. There is also evidence supplied by Defendants that Goldberg hung this award above his desk. 1994 U.S. Dist. LEXIS 8969, *1 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 128 of 139 Page 8 of 18 a favorite childhood activity of his had been going to South Street to "f--- with the Jew merchants." Concerning Goldberg's legal options, Wright allegedly told him that he would be unable to spend any damages award if he was dead. Second Amended Compl., P 18. When Goldberg complained to Defendant Lieutenant James McCarty, he was told that he would have to take his problems up with the persons involved on his own. On or about June 19, 1991, Goldberg allegedly discussed the harassment with Captain Mel Blake of the Police Academy. Goldberg claims that Blake recommended legal action, to which Goldberg initially protested. His superiors allegedly heard about this conversation. On or about June 20, 1991, Defendant Inspector Joseph O'Connor, Goldberg's supervisor, allegedly confronted him and stated, "Go get your lawyer and sue." Second Amended Compl., P 13. O'Connor soon thereafter requested that Goldberg be transferred. On or about June 22, 1991, Goldberg was transferred from the "elite plainclothes work" he had performed [*6] for years to a uniform patrol job at the Twenty-Fourth Police District, an alleged demotion. 3 This transfer was ordered by Defendant Chief Inspector William Bergman and approved by Defendant Former Commissioner Willie Williams. Goldberg claims that the transfer was prompted because members of the Police Department believed he was going to sue the City for religious discrimination. Approximately four months after being transferred, Goldberg resigned from the Philadelphia Police Department on October [*7] 17, 1991 due to sickness that he claims resulted from the harassment. He claims that the alleged activities resulted in a constructive discharge. In the first half of 1992, after the filing of this suit, Defendants are alleged to have taken part in the following activity: (a) The Internal Affairs Bureau maintained a file regarding Goldberg without legitimate basis; followed Goldberg; invaded Goldberg's personal life 3 Though his compensation did not change after the transfer, Goldberg claims that the transfer was "a demotion in responsibility and status." Dep. of Mark Goldberg at 54. In addition, Defendant O'Connor has stated that only a serious failing results in transfer from plainclothes to uniform work. Pls.' Resp. to Defs.' Mot. for Summ. J., Ex. D. Goldberg had submitted an application for transfer to Narcotics in or about early June, 1991. Defendants claim that there was no suitable position for Goldberg in that department. by talking to family members, including Goldberg's son, of whom it was demanded that he keep the inquiry secret from his father; and extended to Goldberg's late wife an offer of information for use in domestic relations proceedings; (b) O'Connor sought to alienate Goldberg's son from his father by offering to illegally protect Goldberg's son from traffic violations; stated that he would, alternatively, rip Goldberg's face off or spit on him; schemed against Goldberg with Goldberg's former brother-in-law; and published directly and through his driver Defendant William Gray false and malicious allegations that Goldberg stole jewelry and money from his late wife; and (c) made one or more direct and indirect death threats, including one by telephone. Second Amended [*8] Compl., P 19. In addition, Philadelphia police officers allegedly went onto Goldberg's property and took trash for inspection without probable cause, a warrant or exigent circumstances. Second Amended Compl., P 20. An affidavit of Police Officer Joseph Libby supports many of Goldberg's claims of harassment. 4 [*9] In opposition, Defendants have filed a multitude of affidavits claiming that Goldberg's claims are erroneous, that Goldberg participated in religious and sexist humor, and citing various other reasons for his transfer. These 4 Libby has worked for the Philadelphia Police Department since 1973. In pertinent part, he stated: While assigned to the OCU, my office work was performed in the same squad room as Mark Goldberg. During my two years there, although I worked on the street most of the time, I witnessed Walter Coughlin berating Mark Goldberg in a completely non-humorous manner on approximately five or six occasions using phrases such as "Jew boy", "fucking Jew", "fucking kike", and "kike", as well as calling him "bagel." I witnessed Mark Goldberg accept this treatment without comment or reply. On at least two occasions, I heard Walter Coughlin tell Mark Goldberg, "Your people killed our Lord." I also heard Raymond Frey call Mark Goldberg "Jew boy" in a non-humorous tone and say to those assembled, "He's too stupid to fight back." This followed one of Walter Coughlin's outbursts. I did not witness Mark Goldberg make ethnic or sexual remarks to other employees or display any sexual art or toys. Pls.' Resp. to Defs.' Mot. for Summ. J., Ex. A. 1994 U.S. Dist. LEXIS 8969, *5 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 129 of 139 Page 9 of 18 alternative reasons include improper behavior at the workplace, and violations of departmental work rules. 5 Goldberg responds with a set of glowing evaluations from superiors at the Police Department. As a result of Defendants' alleged misconduct, Mark Goldberg claims to have suffered severe emotional injury and distress, with concomitant physical symptomatology. Ronni Goldberg claims to have suffered injuries due to impairment in her home and marital life, causing her stress and physical injuries. SUMMARY JUDGMENT STANDARD HN1[ ] Under Fed. R. Civ. P. 56(c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that [*10] there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This court is required, in resolving a motion for summary judgment pursuant to Rule 56, to determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In making this determination, the evidence of the nonmoving party is to be believed, and the district court must draw all reasonable inferences in the nonmovant's favor. See id. at 255. Furthermore, while the movant bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact, Rule 56(c) requires the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that [*11] party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). 5 In 1987 or 1988, Goldberg allegedly made ethnic slurs against Palestinian demonstrators during surveillance outside the Israeli Consulate in Philadelphia. In 1990, Goldberg spent hours out of his workday driving to Allentown, Pennsylvania to buy a gift for a sick colleague. In the same year, he did not have a full dress uniform to wear at a funeral. In another incident, Goldberg broke departmental rules by inviting a relative to a police stakeout. In addition, Goldberg has been admonished for specific license and parking violations. Defs.' Mot. for Summ. J., Ex. V. This Court has examined the various complaints, affidavits, and supporting memoranda of law that have been filed in this matter. Defendants' Motion for Summary Judgment is granted in part and denied in part. ANALYSIS Counts I-IV: Section 1983 Claims Counts I through IV have been brought pursuant to 42 U.S.C. § 1983. 6 HN2[ ] To state a viable claim under § 1983, an individual must allege facts that constitute a deprivation of a constitutional right, privilege or immunity under color of state law. Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1987); Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993). Under § 1983, this Court's inquiry is two-fold. First, the Court must determine [*12] whether Goldberg's allegations rise to the level of a constitutional violation. "Many harms, though caused by a state actor, do not fall within the scope of section 1983, for section 1983 does not turn the Fourteenth Amendment into a font of tort law that supersedes the tort systems already available under individual state laws." Gregory v. City of Rogers, Ark., 974 F.2d 1006, 1009 (8th Cir. 1992) (citing Estelle v. Gamble, 429 U.S. 97, 107, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)), cert. denied, 113 S. Ct. 1265 (1993); Paul v. Davis, 424 U.S. 693, 701, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976)). The individual constitutional claims are considered below. Second, this Court must determine whether the Defendants in question were persons acting under color of state law. The Defendants have not contested the "state action" requirement, as all individual defendants are Philadelphia police officers acting in their official capacities. [*13] Count I -- Deprivation of Physical Security Count I alleges a constitutional deprivation of physical 6 HN3[ ] 42 U.S.C. § 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . . 1994 U.S. Dist. LEXIS 8969, *9 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 130 of 139 Page 10 of 18 security. Although never explicitly stated by Goldberg, it appears that this count is based upon: (1) Defendant Coughlin allegedly assaulting Goldberg by "grabbing him by the neck, digging his fingers in, and physically restraining plaintiff for several seconds," and (2) "one or more direct and indirect death threats, including one by telephone." Second Amended Compl., PP VIII, XIX. HN4[ ] The constitutional right to bodily security guarantees an individual's "right to be free of state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of the court." Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980). Goldberg has conceded that his allegations are insufficient to support an assault claim under Pennsylvania state law. Pls.' Resp. to Defs.' Mot. for Summ. J. at 8. Consequently, because of Goldberg's concession that the alleged attack does not amount to an assault, this Court finds that the incident cannot be the basis for a violation of Goldberg's constitutional [*14] right to bodily security. As for the alleged threats, Plaintiff has not demonstrated how these rise to the level of a § 1983 violation. See Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989) (HN5[ ] fear from spoken words is not actual infringement of constitutional right and not actionable under § 1983). Goldberg has not pointed to any other specific act which would be sufficient to support this cause of action. Accordingly, summary judgment is appropriate as to Count I for all Defendants. Count II -- Deprivation of Equal Protection Goldberg next contends that Defendants treated him differently from his fellow officers because he is Jewish, and that the differential treatment led to physical, mental and pecuniary injuries. HN6[ ] The Equal Protection Clause of the Fourteenth Amendment provides that the government will treat similarly situated persons similarly. Though not an absolute guarantee of equal treatment, it prohibits any difference that is "deliberately based upon an unjustified standard such as race, religion or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962). [*15] HN7[ ] Plaintiffs claiming a violation of their right to equal protection must prove the existence of "purposeful discrimination." Batson v. Kentucky, 476 U.S. 79, 93, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). To do so, Goldberg must demonstrate that he "received different treatment from that received by other individuals similarly situated." Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)). 7 [*16] As evidence of the Defendants' purposeful discrimination, Goldberg cites to a number of alleged anti-Semitic activities as detailed above. He also cites to the inaction of various supervisors whom he claims were made aware of this allegedly discriminatory treatment, and did not take any remedial action. However, Goldberg has not demonstrated discrimination on the part of several of the Defendants. The sole mention of Gray in any pleading is that Defendant O'Connor "published directly and through his driver defendant William Gray false and malicious allegations that plaintiff stole jewelry and money from his late wife." Second Amended Compl., P 19. Goldberg has presented no evidence to this Court linking Gray with alleged religious discrimination. As for Defendants Williams and Bergman, Goldberg suggests that his transfer was ordered by Bergman and approved by Williams because they believed Goldberg was going to sue the Police Department for religious harassment. However, Goldberg's § 1983 claims against these parties do not survive summary judgment. In Paragraph XVII of the Second Amended Complaint, Goldberg states that his labor representative brought the alleged misconduct to the [*17] personal attention of Williams, who took no action. However, Goldberg provides no evidence supporting this statement in response to the motion for summary judgment. The written labor grievance merely stated that "P/O Mark Goldberg (PR #166636) was transferred from the Organized Crime Intelligence Unit to the 24th District for reasons of personal animus in violation of Article XX, Section L (A) of the collective bargaining agreement." Defs.' Mot. for Summ. J., Ex. Z. It does not mention Goldberg's claims of religious harassment. 8 In addition, while Bergman 7 HN8[ ] The mere fact that the religious harassment alleged to be in violation of the Equal Protection Clause also may violate Title VII does not bar a § 1983 claim based on equal protection. See Reynolds v. Borough of Avalon, 799 F. Supp. 442, 448-9 (D.N.J. 1992) (citing Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1079 (3d Cir. 1990) ("Title VII does not preempt section 1983 and . . . discrimination claims may be brought under either statute, or both.")). 8 In addition, Williams has stated that he did not recall the circumstances of the transfer of Mark Goldberg. Also, he did 1994 U.S. Dist. LEXIS 8969, *13 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 131 of 139 Page 11 of 18 allegedly ordered the transfer, absolutely no evidence is demonstrated linking his decision to the alleged harassment. 9 [*18] Though Defendants have filed many affidavits claiming that Goldberg's claims are untrue, and have supplied various other reasons for Goldberg's transfer, material issues of fact exist as to whether there was purposeful discrimination against Goldberg due to his Jewish religion. 10 [*19] However, even though material issues of fact in this regard have been established as to Defendants Coughlin, McCarty, O'Connor, Wright and Weaver, 11 HN9[ ] Goldberg's failure to sue these individuals in their individual capacities mandates additional analysis. To the extent that the complaint attempts to state § 1983 claims against individual Defendants in their official capacities, the action operates as a claim against the City of Philadelphia itself. See Will v. Michigan, 491 U.S. 58, 71 (1989). Thus, the liability of the City is the determinative inquiry in a suit against individuals in their official capacities. See Jacobs v. Paynter, 727 F. Supp. 1212, 1216 (N.D. Ill. 1989). The liability of the City, and consequently the remaining individual defendants' liability, is addressed in a separate section below. not remember ever approving a transfer because the officer in question had threatened to sue the City. Defs.' Mot. for Summ. J., Ex. SS. 9 Bergman has stated that, at the time he approved O'Connor's recommendation that Goldberg be transferred, he was not aware of Goldberg's allegations nor his intent to sue the City. Defs.' Mot. for Summ. J., Ex. Y. Goldberg has not provided this Court with evidence to contradict this claim. 10 The United States Supreme Court has assumed that employment discrimination claims under 42 U.S.C. § 1983 should be analyzed under the framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). See St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2746 n.1. (1993). A more formal analysis under this burden-shifting standard is set forth in the Title VII section below. 11 The specific evidence of affirmative conduct against each Defendant except McCarty is detailed above. The allegation against Defendant McCarty is that when Goldberg advised him of the alleged harassment, "he was told that he would have to take his problems up with the persons involved on his own." Second Amended Compl., P 11(e). HN10[ ] Supervisory liability can be based on "actual knowledge and acquiescence" on the part of a supervisor. Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (citation omitted). Count III -- Deprivation of Due Process Goldberg next avers that Defendants are liable under § 1983 for the "deprivation of plaintiffs' property rights without notice or a hearing and of their liberty interest under the stigmatizing circumstances of the constructive discharge." Pls.' Second Amended Compl., Count III. The Supreme Court has held that HN11[ ] the due process clause requires "'some kind of a hearing' prior to the discharge of an employee who has a constitutionally protected property interest in his employment." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985) [*20] (quoting Board of Regents v. Roth, 408 U.S. 564, 569-70, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972)). In order to have a property interest that is protected by procedural due process, Goldberg must first establish that he had a legitimate claim of entitlement to his position. Board of Regents, 408 U.S. at 577; Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984). Property interests are not created by the Constitution. "Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents, 408 U.S. at 577. Goldberg has not advised this Court under what law, rule, or contract provision he claims an entitlement to a specific position, or any position at all, in the Police Department. Nevertheless, this Court will take judicial notice that under the relevant civil [*21] service regulations, Goldberg had a property interest in his job as a police officer. 12 If Goldberg's resignation was so involuntary that it amounted to a constructive discharge, he would have been deprived of his right to due process. Because Goldberg has brought forth sufficient evidence demonstrating that certain Defendants made his working conditions so intolerable that a reasonable employee would have been forced to resign, a procedural due process claim will withstand summary judgment against those Defendants who allegedly harassed him if liability of the municipality is demonstrated. See Desper v. Montgomery County, 727 12 See Copeland v. City of Philadelphia, 840 F.2d 1139, 1144 (3d Cir. 1988), cert. denied, 490 U.S. 1004, 104 L. Ed. 2d 153, 109 S. Ct. 1636 (1989); Gniotek v. City of Philadelphia, 808 F.2d 241, 243 (3d Cir. 1986), cert. denied, 481 U.S. 1050, 95 L. Ed. 2d 839, 107 S. Ct. 2183 (1987). 1994 U.S. Dist. LEXIS 8969, *17 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 132 of 139 Page 12 of 18 F. Supp. 959, 964 (E.D. Pa. 1990). [*22] Goldberg also contends that his liberty interest to be free from stigma has been violated by his alleged constructive discharge. HN12[ ] A terminated employee's reputational liberty may be implicated if a public employer, in discharging the employee, publicly publishes some false statement of a stigmatizing nature concerning the basis for the employee's discharge. See Anderson v. City of Philadelphia, 845 F.2d 1216, 1222 (3d Cir. 1988). In this case, Goldberg's effort to implicate his liberty interest protected by the Due Process Clause fails because he has not demonstrated any basis upon which his liberty interest was affected. For example, he has not alleged that any of the Police Department's accusations of misconduct were made public at any time. Count IV -- Invasion of Privacy Goldberg also alleges a constitutional invasion of privacy under § 1983, based on the alleged search and seizure of his trash by unnamed members of the Philadelphia Police Department and harassment that he and his family have suffered. Second Amended Compl., Count IV. HN13[ ] The Fourth Amendment, which protects individuals from illegal searches and seizures, applies to states through [*23] the Fourteenth Amendment. Ker v. California, 374 U.S. 23, 30, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963). The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." U.S. Const., amend. IV. The protections of the Fourth Amendment apply in the civil as the criminal context. Soldal v. Cook County, Illinois, 121 L. Ed. 2d 450, 113 S. Ct. 538, 546 (1992). Under Fourth Amendment jurisprudence, a "search" occurs when an individual's expectation of privacy, which society would recognize as reasonable, is infringed. United States v. Jacobsen, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984). A "seizure" of property occurs where there "is some meaningful interference with an individual's possessory interest in that property." Id. In this case, Goldberg alleges both illegal search and seizure as a result of a search of his trash by unidentified Philadelphia police officers. Because there has been no identification [*24] of any items specifically seized by the unnamed police officers, however, there can be no meaningful interference with Goldberg's possessory interests in his property. Therefore, this Court must only examine whether an unreasonable search occurred when the Goldbergs' trash was allegedly disturbed. The primary purpose of the Fourth Amendment is to protect privacy, not property. O'Connor v. Ortega, 480 U.S. 709, 715, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987). Accordingly, the pertinent question here is whether Goldberg retained a subjective expectation of privacy in his trash that society would accept as objectively reasonable. Id. HN14[ ] "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351-52, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967) (citations omitted). HN15[ ] Courts routinely consider the proximity of the trash in question to public areas such [*25] as the sidewalk or the street in order to determine whether the owners retained a reasonable expectation of privacy in the contents of the trash. See California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988); United States v. Hedrick, 922 F.2d 396 (7th Cir.), cert. denied, 116 L. Ed. 2d 113, 112 S. Ct. 147 (1991). Merely because trash is located within the curtilage of Goldberg's property does not guarantee that Goldberg had a reasonable expectation of privacy in the contents of the trash. Hedrick, 922 F.2d at 400. Considerations such as accessibility of the trash to the public, and evidence indicating an intent to retain some control over or interest in the discarded trash are also routinely assessed. See, e.g., United States v. Terry, 702 F.2d 299, 309 (2d Cir.) (citation omitted), cert. denied, 461 U.S. 931 and 464 U.S. 992 (1983). Goldberg has provided this Court with insufficient evidence to determine [*26] whether he retained a reasonable expectation of privacy in the contents of his trash. 13 Therefore, the alleged search of the Goldbergs' trash does not result in the survival of a § 1983 cause of action. Additionally, Goldberg claims that harassment of his 13 The Second Amended Complaint alleges that "defendant's officers went onto plaintiff's property, well beyond the curbline, and took trash for inspection . . . ." Pls.' Second Amended Compl., P 20. To support this allegation against Defendants' Motion for Summary Judgment, Plaintiff's affidavit states, "I saw persons operating a vehicle bearing familiar tags used by the Police Department go through my trash at my home . . ." Pls.' Resp. to Defs.' Mot. for Summ. J., Ex. B at 3. 1994 U.S. Dist. LEXIS 8969, *21 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 133 of 139 Page 13 of 18 family rises to the level of a § 1983 violation. However, threats do not constitute a constitutional violation. See Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989) (fear from spoken words is not actual infringement of constitutional right and not actionable [*27] under § 1983). Consequently, summary judgment is appropriate as to Count IV for all Defendants. a. Municipal Liability under § 1983 Next, this Court must determine whether the City is potentially liable under the remaining § 1983 claims. This inquiry is also determinative of the individual defendants' liability in their official capacities. The City asserts that it is not a "person" under the terms of § 1983 because the City is liable only if Goldberg can establish that a governmental policy, practice or custom caused Goldberg's injury or loss. Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-701, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). It is well established that HN16[ ] the doctrine of respondeat superior or vicarious liability will not attach under § 1983 for the acts of employees of a local government. Monell, 436 U.S. at 694-95. The Supreme Court has emphasized that "a municipality cannot be held liable solely [*28] because it employs a tortfeasor." Monell, 436 U.S. at 691. Only where an official municipal policy or custom is itself the "moving force" behind the constitutional deprivation can a municipality be liable under § 1983. Polk County v. Dodson, 454 U.S. 312, 316, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981) (citing Monell, 436 U.S. at 694). HN17[ ] The policy or custom requirement of Monell intends to "prevent the imposition of municipal liability under circumstances where no wrong could be ascribed to municipal decisionmakers." City of Oklahoma City v. Tuttle, 471 U.S. 808, 821, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985). Government policy consists of "an official proclamation, policy or edict" issued by a "decisionmaker possessing final authority to establish policy with respect" to the subject matter in issue. Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). 14 Alternatively, a municipality may be 14 HN18[ ] A course of conduct is also to be considered a custom when "such practices of state officials [are] so permanent and well settled" as to virtually constitute law. Id. (citation omitted). held [*29] liable for its failure to take action to stop the harassment if there is a demonstration of "deliberate indifference" to the harassment. City of Canton v. Harris, 489 U.S. 378, 389-90, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989) (deliberate indifference can be shown where the "need for more and different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent to the need.") Additionally, the deliberate indifference must be shown to have caused the constitutional violation. Id. at 395. HN19[ ] In evaluating liability of a municipality under Monell, the Court must determine, based [*30] on state law, "which official has final unreviewable discretion to make a decision or take an action." Andrews, 895 F.2d at 1481. The question of who is a policymaker is one of state law. Id. Goldberg contends that municipal liability is warranted under § 1983 because of: 1) approval of Defendants' conduct by the relevant policymaking official, Defendant Williams, 2) the acts of multiple command-level officials, and the 3) continual, condoned misconduct of lower-level superiors. Pls.' Resp. to Defs.' Mot. for Summ. J. at 6. To buttress this contention, Goldberg points to Defendant Williams' approval of his transfer to a uniform patrol assignment from the plainclothes division. In addition, Goldberg claims that his labor representative brought this matter to the attention of Williams, and Williams took no action. First, this Court does not see how the mere approval of an officer's transfer can be considered evidence of a "policy or custom" of religious discrimination. Goldberg has not demonstrated to this Court that Williams had knowledge of any of the alleged reasons for the transfer before approving it. The only relevant evidence before the Court [*31] is that Williams knew of Goldberg's labor grievance before the transfer was made. The labor grievance did not mention the allegations of religious harassment. 15 I find that Goldberg has fallen far short of demonstrating either a municipal custom of harassment or "deliberate indifference" on the part of the City. 16 [*32] Williams did 15 The labor grievance stated that "P/O Mark Goldberg (PR #166636) was transferred from the Organized Crime Intelligence Unit to the 24th District for reasons of personal animus in violation of Article XX, Section L (A) of the collective bargaining agreement." Defs.' Mot. for Summ. J., Ex. Z. 16 In addition, it appears to this Court that the City responded in an appropriate manner with regards to its internal 1994 U.S. Dist. LEXIS 8969, *26 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 134 of 139 Page 14 of 18 not set or condone any city "policy" of harassment by approving the transfer. 17 As for the acts of other Defendants, Goldberg has not demonstrated how their decisions were "unreviewable." For example, he has not provided this Court with evidence that Williams delegated his authority to any of the other Defendants concerning this matter. Therefore, the actions of the other individual defendants did not set city policy for purposes of the Monell analysis. Also, there has been no suggestion in the record by Goldberg that anti-Semitic behavior was so rampant in the Police Department that one would infer that Williams knew why Goldberg was being transferred. Specifically, there is no mention of the manner in which other Jewish officers were treated, which may have alerted Williams of a hostile environment towards Jews in the Police Department. See Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990) [*33] (policy may be set if policymaker aware of similar unlawful conduct in past but failed to take precautions against future violations). Because liability on the part of the City has not been established, claims against the individual Defendants in their official capacities also do not survive summary judgment. Therefore, summary judgment is granted as to all Defendants for Counts II and III. Count V -- Title VII HN20[ ] A court has jurisdiction over a Title VII claim only if it was first filed with the Equal Employment Opportunity Commission ("EEOC"), and the agency thereafter issues a right to sue letter. See Ostapowicz v. Johnson, 541 F.2d 394, 398 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 50 L. Ed. 2d 753, 97 S. Ct. 741 (1977). On February 2, 1993, a right to sue letter was issued to Goldberg by the United States Department of Justice. Therefore, this Court has proper jurisdiction over this investigation. Plaintiff's contract grievance was listed for a discussion within thirty (30) days. At a grievance hearing on August 6, 1991, a new date was set and the matter was held pending review. In the interim, the Department's EEO Unit took the complaint and began to investigate Goldberg's allegations. Within ninety (90) days, the preliminary findings were received and Goldberg's attorney was notified that the investigation had not substantiated any of Goldberg's claims. 17 In fact, at the same time that Goldberg was transferred out of Organized Crime, Defendants O'Connor, Wright, Weaver, McCarty and Gray were also transferred. Several hundred other personnel also had their assignments changed on the same day as Goldberg. Defs.' Mot. for Summ. J., Ex. TT. claim. In this type of religious discrimination claim, as opposed to a "religious accommodation" claim, the issue is straightforward: whether Goldberg's constructive discharge and/or demotion were motivated [*34] by an animus directed against him because of his Jewish religion. Shapolia v. Los Alamos Nat. Laboratory, 992 F.2d 1033, 1037 (10th Cir. 1993). HN21[ ] Absent direct evidence of discrimination, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's [demotion or discharge]. . . . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)). In pertinent part, HN22[ ] 42 U.S.C. § 2000e-2 [*35] states that it is an unlawful employment practice for any employer to: (1) . . . discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's . . . religion . . ., or (2) to limit, segregate, or classify his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . religion. . . . To establish a prima facie case, Goldberg must show that he: (1) was a member of a protected class; (2) was qualified for the position; (3) was constructively discharged and/or a victim of a retaliatory demotion; and (4) others not in the protected class were treated more favorably. See Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1988) (citation omitted). 18 18 Goldberg alternatively claims that his demotion was retaliatory in nature. See 42 U.S.C. § 2000e-3(a). HN23[ ] 1994 U.S. Dist. LEXIS 8969, *32 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 135 of 139 Page 15 of 18 [*36] Defendants do not contest that Goldberg was a member of a protected class or that he was qualified for his position. In addition, Goldberg has presented sufficient evidence that he was constructively discharged and/or a victim of a retaliatory demotion. Lastly, he claims that there is sufficient evidence of religious discrimination resulting from a hostile work environment. See Harris v. Forklift Sys., Inc., 126 L. Ed. 2d 295, U.S. , , 114 S. Ct. 367, 370 (1993) ("HN24[ ] When the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' . . . that is 'sufficiently severe or pervasive [so as] to alter the conditions of the victim's employment and create an abusive working environment,' . . . Title VII is violated.") (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). HN25[ ] To demonstrate the existence of a hostile environment, Goldberg must establish the existence of the five following elements: (1) the employee suffered intentional discrimination because of his religion; (2) [*37] the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same religion in that position; and (5) the existence of respondeat superior liability. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). See also Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986) (hostile environment principles apply to scenarios of discrimination based on sex and religion). The repeated incidents detailed above are sufficient to establish a prima facie case against many of the Defendants. Goldberg has detailed many incidents of discrimination based on his religion, and a sufficient number such that the discrimination may be considered pervasive and regular. 19 Goldberg has provided To state a retaliation claim under Title VII, a plaintiff must show that he had a reasonable belief that his employer was engaged in an unlawful employment practice and that the employer retaliated against him for protesting against that practice. Drinkwater v. Union Carbide Corp., 904 F.2d 853, 865 (3d Cir. 1990) (citation omitted). 19 The Third Circuit has defined pervasive and regular as "when incidents of harassment occur either in concert or with sufficient evidence that the discrimination detrimentally affected him to the point where he was forced to resign. Additionally, given not only the frequency but the gravity of the alleged incidents, the alleged harassment would have detrimentally [*38] affected a reasonable Jewish person. As for the final factor, the Monell analysis does not apply to the City's potential liability as an "employer" under Title VII. Richardson v. Byrd, 709 F.2d 1016, 1022 (5th Cir.), cert. denied, Dallas County Comm'rs Court v. Richardson, 464 U.S. 1009, 78 L. Ed. 2d 710, 104 S. Ct. 527 (1983). HN26[ ] In determining whether an employer is liable for a hostile environment, this Court must "look to agency principles for guidance in this area." Vinson, 477 U.S. at 72. According to these principles, "liability exists where the defendant knew or should have known of the harassment and failed to take prompt remedial action." Andrews, 895 F.2d at 1486 [*39] (citation omitted). If a plaintiff proves that management-level employees had actual or constructive knowledge about the existence of the hostile environment and failed to take prompt and adequate remedial action, the employer will be liable. Id. In this case, Goldberg has provided sufficient evidence that O'Connor and McCarty had knowledge of the allegations, and did not take prompt remedial action. Thus, Goldberg has made out a prima facie case against the City. Because Goldberg is able to demonstrate a prima facie case, the burden shifts to the Defendants to produce evidence of a legitimate non-discriminatory reason for the demotion. Defendants claim that the transfer resulted from rules violations and misconduct. 20 However, Goldberg has brought forth eleven years worth of evaluations with no unsatisfactory ratings. See Pls.' Resp. to Defs.' Mot. for Summ. J., Ex. C. In addition, there is no evidence that Goldberg ever received a written disciplinary warning, 21 nor is there sufficient evidence presented by Defendants tying these incidents to the transfer. HN27[ ] "At the summary judgment level . . . the plaintiff does not have to prove that the reason is pretextual. The plaintiff [*40] may preclude summary judgment by producing evidence regularity." See Andrews, 895 F.2d at 1484 (citation omitted). 20 See supra note 5. 21 However, Defendants have submitted several memoranda addressed to Goldberg concerning violations of departmental policy, and claim that he was orally reprimanded on numerous occasions. 1994 U.S. Dist. LEXIS 8969, *35 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 136 of 139 Page 16 of 18 from which the trier of fact reasonably could draw an inference of discrimination." Sorlucco v. New York City Police Dep't, 888 F.2d 4, 7 (2d Cir. 1989) (citing Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898-99 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987)). See also Chauhan v. M. Alfieri Co., 897 F.2d 123, 127 (3d Cir. 1990). Therefore, Goldberg's Title VII cause of action survives the McDonnell Douglas three-part analysis. a. Proper Title VII Defendants A separate issue is which Defendants are properly subject to this cause of action. 22 As the "employer", it is clear under the foregoing analysis that the City [*41] of Philadelphia is a proper defendant. However, Goldberg has also brought a Title VII claim against each individual Defendant. HN28[ ] Only individuals with "supervisory authority" over Goldberg are properly subject to a Title VII claim. See Cook v. Applied Data Research, 1989 WL 85068, at *10-11 (D.N.J. [*42] July 20, 1989). As one court stated: "The term 'employer' under Title VII has been construed in a functional sense to encompass persons who are not employers in conventional terms, but who nevertheless control some aspect of an individual's compensation, terms, conditions or privileges of employment." Id. (quoting Spirt v. Teachers Ins. & Annuity Ass'n, 475 F. Supp. 1298, 1308 (S.D.N.Y. 1979), aff'd in relevant part, 691 F.2d 1054 (2d Cir. 1982), vacated on other grounds, 463 U.S. 1223 (1983)). Goldberg argues that simply because all Defendants except Gray held at least the rank of sergeant, and Goldberg was a "mere police officer", that all individual Defendants except Gray are supervisors. However, the fact that these Defendants held a higher rank than Goldberg does not automatically make them 22 Preliminarily, this Court notes that Goldberg's charge with the Equal Employment Opportunity Commission was only made against "City of Philadelphia Police Department". While there is no strict requirement that Title VII claims be limited to those parties named in the EEOC charge, various factors are considered in determining whether to allow Title VII claims against unnamed parties to proceed. See Dreisbach v. Cummins Diesel Engines, Inc., 848 F. Supp. 593, 595 (E.D. Pa. 1994) (citing Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir. 1977)). However, because neither party has addressed this issue, this Court is unable to find any claim improper under this theory. supervisors. See Duva v. Bridgeport Textron, 632 F. Supp. 880, 882 (E.D. Pa. 1985) (only individuals with supervisory status are potentially liable under Title VII). At the very least, the facts and circumstances surrounding the alleged Title VII violations generally [*43] must be fleshed out to determine whether the supervisor was in a position to exert influence over personnel decisions with regard to Goldberg. Cook, 1989 WL 85068, at *11. However, with regard to this specific issue, Defendants admit, "Defendants Coughlin, Wright, McCarty, Weaver and O'Connor all were supervisors at Organized Crime." Defs.' Memo. in Response to Ct. Order at 6. Therefore, these Defendants meet the threshold inquiry of having supervisory authority over the members of Goldberg's unit. For the reasons noted in the equal protection analysis, sufficient evidence of religious harassment leading to a constructive discharge has been submitted against Coughlin, McCarty, O'Connor, Wright, and Weaver. 23 In addition, for the reasons stated above concerning the knowledge and acquiescence of management, the City is a proper Title VII Defendant. Also, Goldberg has provided sufficient evidence that his demotion resulted from a belief that he had decided to sue the City for this theory to survive summary judgment against the City and O'Connor. 24 However, as stated above, Goldberg has not set forth sufficient evidence tying Bergman, Gray or Williams to the alleged harassment. [*44] Therefore, summary judgment is granted as to Defendants Bergman, Gray and Williams for Count V. b. Civil Rights Act of 1991 This Court must determine whether the Civil Rights Act of 1991 applies to this case in order to rule whether compensatory and punitive damages are potentially 23 McCarty is a proper defendant under the Title VII count because inaction of management may serve as a basis for liability under Title VII. Kinnally v. Bell of Pa., 748 F. Supp. 1136, 1142 (E.D. Pa. 1990). 24 O'Connor is the only individual defendant involved with the transfer whom Goldberg has sufficiently demonstrated had knowledge of the harassment allegations. O'Connor's harassment of Goldberg allegedly persisted even after Goldberg's employment with the Philadelphia Police Department ended. This harassment is also a potential Title VII violation. See Charlton v. Paramus Bd. of Educ., 1994 WL 233765, *6 (3d Cir. June 1, 1994). 1994 U.S. Dist. LEXIS 8969, *40 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 137 of 139 Page 17 of 18 available under the Title VII cause of action. Pub.L. No. 102-166, [*45] § 102, 105 Stat. 1072 (1991) (codified at 42 U.S.C.A., § 1981a (West Supp. 1992)). Goldberg argues that the 1991 Act should apply to this case because it was first filed in this Court subsequent to the effective date of the Civil Rights Act of 1991. However, the alleged conduct leading to Goldberg's demotion and constructive discharge occurred prior to November 21, 1991, the effective date of the Civil Rights Act of 1991. See Blanding v. Pennsylvania State Police, 811 F. Supp. 1084, 1090 (E.D. Pa. 1992) (date of conduct is appropriate inquiry), aff'd, 12 F.3d 1303 (3d Cir. 1993). In addition, administrative proceedings had been brought prior to the effective date of the act. The provisions of the Civil Rights Act of 1991 will not apply to this case. See generally Landgraf v. USI Film Products, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Therefore, Goldberg's Title VII claims will be considered under the standards set by the Civil Rights Act of 1964. Count VI -- Section 1981 Plaintiff concedes that summary judgment is proper with respect [*46] to this count. Therefore, this Court grants summary judgment as to all Defendants for Count VI. Count VII -- Assault Plaintiff also concedes that summary judgment is proper with respect to this count. This Court grants summary judgment as to all defendants for Count VII. 25 Count VIII -- Ethnic Intimidation HN29[ ] Under the civil component of Pennsylvania's ethnic intimidation statute, 42 Pa. Cons. Stat. § 8309, a person commits the offense of ethnic intimidation if, "with malicious intention toward the . . . religion . . . of another individual," he commits any of a number of specific offenses, including harassment by communication or address. 26 While Paragraph 19 of 25 In its May 27, 1993 Order, this Court dismissed Plaintiff's claim for assault against the City. 26 18 Pa. Cons. Stat. § 2710. HN30[ ] Section 8309 provides, in relevant part: "a person who incurs injury to his person or damage or loss to his property as a result of conduct described in 18 Pa.C.S. section 2710 (relating to ethnic intimidation) . . . shall have a right of action against the actor for injunction, damages or other appropriate civil or equitable relief." HN31[ ] Harassment by communication or address is the Second Amended Complaint alleges that a death threat was made to Goldberg over the telephone, Goldberg has neither alleged nor provided evidence that the perpetrator of the call was an individual named as a defendant in this lawsuit. Summary judgment [*47] is granted as to all Defendants for Count XIII. Count IX -- Pennsylvania Human Relations Act HN32[ ] The Pennsylvania Human Relations Act ("PHRA") provides an exclusive remedy for the resolution of discrimination [*48] complaints in Pennsylvania. 43 Pa. Cons. Stat. § 962. However, before an individual can invoke the protection and relief available under the PHRA, the individual must strictly follow the terms of the Act. Clay v. Advanced Computer Applications, 522 Pa. 86, 90, 559 A.2d 917, 919 (1989). Under the PHRA, a civil action may generally not be commenced until the claim is first presented to the Pennsylvania Human Rights Commission. James v. International Business Machines Corp., 737 F. Supp. 1420, 1426 (E.D. Pa. 1990). In this case, Goldberg admits that he has not satisfied the exhaustion requirements, and concedes this claim. Pls.' Memo. in Response to Court Order at 1. Summary judgment is granted as to all Defendants for Count IX. Count X -- Loss of Consortium Ronni Goldberg alleges a cause of action for loss of consortium as a result of the alleged religious harassment of her husband. HN33[ ] Title VII does not provide for loss of consortium damages. Hooten v. Pennsylvania College of Optometry, 601 F. Supp. 1151, 1155 n.2. (E.D. Pa. 1984). Accordingly, Ronni Goldberg's loss of consortium [*49] claim fails. Summary judgment is granted as to all Defendants for Count X. Count XI -- Punitive Damages committed if, with intent to harass another, one: (1) makes a telephone call without intent of legitimate communication or addresses to or about such other person any lewd, lascivious or indecent words or language or anonymously telephones another person repeatedly; or (2) makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language. 18 Pa. Cons. Stat. § 5504. 1994 U.S. Dist. LEXIS 8969, *44 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 138 of 139 Page 18 of 18 Plaintiffs have also alleged that all Defendants are liable to them for punitive damages "for their malicious, intentional, purposeful, knowing, reckless, outrageous, extreme, deliberate, and/or extreme misconduct." Pls.' Second Amended Compl., Count XI. Because the Civil Rights Act of 1991 does not apply to this case, punitive damages are not available under Title VII. See Protos v. Volkswagen of America, Inc., 797 F.2d 129, 137 (3d Cir.), cert. denied, 479 U.S. 972, 93 L. Ed. 2d 418, 107 S. Ct. 474 (1986). Summary judgment is consequently appropriate as to all Defendants for Count XI. CONCLUSION For the reasons stated above, Defendants' Motion for Summary Judgment is granted in part and denied in part. An appropriate Order follows. ORDER AND NOW, this 29th day of June, 1994, after consideration of Defendants' Motion for Summary Judgment, Plaintiffs' Response, Defendants' Reply, and supplemental memoranda, it is hereby ORDERED that: 1. Summary judgment is GRANTED [*50] to all Defendants for Counts I, II, III, IV, VI, VII, VIII, IX, X and XI. 2. Summary judgment is GRANTED to Defendants Willie Williams, William Bergman, and William Gray for Count V. 3. Summary judgment is DENIED to Defendants City of Philadelphia, Walter Coughlin, James McCarty, Joseph O'Connor, Michael Weaver and Joseph Wright for Count V. The Title VII claim is limited to a constructive discharge claim against Coughlin, McCarty, Weaver and Wright. The Title VII claim against the City and O'Connor may proceed under both theories of constructive discharge and retaliatory demotion. 4. Judgment is entered in favor of all Defendants and against Plaintiffs Mark Goldberg and Ronni Goldberg for Counts I, II, III, IV, VI, VII, VIII, IX, X and XI. 5. Judgment is entered in favor of Defendants Willie Williams, William Bergman and William Gray and against Plaintiffs Mark Goldberg and Ronni Goldberg for Count V. 6. Within twenty (20) days of this Order, each party shall submit Proposed Jury Instructions to this Court, limited to ten (15) instructions, except by leave of court. 7. Within twenty (20) days of this Order, each party shall submit Proposed Jury Interrogatories to this Court. BY THE [*51] COURT: JAMES McGIRR KELLY, J. End of Document 1994 U.S. Dist. LEXIS 8969, *49 Case 3:16-cv-00902-MEM Document 25 Filed 05/18/17 Page 139 of 139
