Dixon v. Amerihealth Administrators

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.June 12, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARIA GARCIA DIXON, Plaintiff v. AMERIHEALTH ADMINISTRATORS, Defendant. : : : Civil Action No. 2:17-cv-01520-JD : : Electronically Filed : : : : DEFENDANT AMERIHEALTH ADMINISTRATORS INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant AmeriHealth Administrators, Inc. (“AHA”), by its undersigned counsel, moves this Court to dismiss all counts of Plaintiff Maria Garcia Dixon’s (“Plaintiff”) Complaint. In support of this Motion and in accordance with Local Rule 7.1(c), the Court is respectfully referred to the accompanying memorandum of law. AHA avers as follows: 1. Plaintiff filed a three-count Complaint on March 31, 2017. 2. Count One of Plaintiff’s Complaint purports to assert a claim of discrimination on the basis of race and color under 42 U.S.C. § 1981. (Compl. ¶¶ 23-26.) 3. Count One fails to state a plausible claim for relief because the factual allegations in support thereof fail to plausibly allege “circumstances that give rise to an inference of unlawful discrimination,” Jones v. Sch. Dist. of Philadelphia, 19 F. Supp. 2d 414, 418 (E.D. Pa. 1998) (citing Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066 (3d Cir. 1996)), or harassment that is “severe or pervasive.” Griffin v. Harrisburg Prop. Servs., 421 Fed. Appx. 204, 207 (3d Cir. 2011) (quoting Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled in part on other grounds, 548 U.S. 53 (2006)). Case 2:17-cv-01520-JD Document 5 Filed 06/12/17 Page 1 of 4 2 4. Count Two of Plaintiff’s Complaint purports to assert a claim of retaliation under 42 U.S.C. § 1981. (Compl. ¶¶ 27-30.) 5. Count Two fails to state a viable claim for relief because it fails to plausibly allege that Plaintiff was subject to an adverse employment action because of her participation in protected activity. See Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010) (citing Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006)). 6. Count Three of Plaintiff’s Complaint purports to assert various unspecified and amorphous “state law claims.” (Compl. ¶¶ 31-33.) 7. Count Three fails to state a plausible claim for relief because it fails to allege facts sufficient to allege a claim under the Pennsylvania Human Relations Act (“PHRA”), 43. P.S. §§ 951, et seq.. 8. Count Three fails to state a plausible claim for relief under the PHRA because it fails to plead that Plaintiff has exhausted her administrative remedies. See 43 P.S. § 959(a). 9. Count Three fails to state a plausible claim for relief on a theory of a violation of Defendant’s handbook, policy, or work rule because the PHRA preempts such claims. See Clay v. Advanced Comput. Applications, Inc., 559 A.2d 917, 920-21 (Pa. 1989); see also Bonham v. Dresser Indus., Inc., 569 F.2d 187, 195 (3d Cir. 1979). 10. Count Three’s remaining allegations and purported theories of relief are so vague and conclusory that they fail to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P. 8(a)(2). Case 2:17-cv-01520-JD Document 5 Filed 06/12/17 Page 2 of 4 3 WHEREFORE, pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant AmeriHealth Administrators, Inc. respectfully requests that Dixon’s Complaint be dismissed. Dated: June 12, 2017 Respectfully submitted, /s/ Steven K. Ludwig - Steven K. Ludwig, Esquire Brian J. McGinnis, Esquire Fox Rothschild LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103-3222 (215) 299-2164/2042 (215) 299-2150 (facsimile) sludwig@foxrothschild.com bmcginnis@foxrothschild.com Counsel for Defendant AmeriHealth Administrators, Inc. Case 2:17-cv-01520-JD Document 5 Filed 06/12/17 Page 3 of 4 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing of Defendant’s motion to dismiss, memorandum of law in support and proposed order were served this day upon the following counsel of record via the Court’s electronic transmission facilities: William J. Fox, Esquire 1626 Pine Street Philadelphia, PA 19103 (215) 546-2477 bill@wjfoxpc.comcastbiz.net Attorney for Plaintiff Dated: June 12, 2017 /s/ Steven K. Ludwig Steven K. Ludwig, Esquire Case 2:17-cv-01520-JD Document 5 Filed 06/12/17 Page 4 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARIA GARCIA DIXON, Plaintiff v. AMERIHEALTH ADMINISTRATORS, Defendant. : : : Civil Action No. 2:17-cv-01520-JD : : : : : : ORDER AND NOW, this _____ day of ________________________, 2017, upon consideration of Defendant AmeriHealth Administrators, Inc.’s Motion to Dismiss Plaintiff’s Complaint, and Plaintiff’s response thereto, said Motion is GRANTED and Plaintiff’s Complaint is DISMISSED. BY THE COURT: _____________________________ DuBOIS, JAN E., J. Case 2:17-cv-01520-JD Document 5-1 Filed 06/12/17 Page 1 of 1 ACTIVE\49423711.v2-6/12/17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARIA GARCIA DIXON, Plaintiff v. AMERIHEALTH ADMINISTRATORS, Defendant. : : : Civil Action No. 2:17-cv-01520-JD : : Electronically Filed : : : : MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT AMERIHEALTH ADMINISTRATORS, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT I. PRELIMINARY STATEMENT This case is about an employee’s false accusations of workplace discrimination, which seek to excuse her sustained, documented, and objectively subpar job performance. AmeriHealth Administrators, Inc. (incorrectly named in the Complaint as “Amerihealth Administrators”) (“AHA” or “AmeriHealth”) employed Maria Garcia Dixon (“Dixon” or “Plaintiff”) in its Claims-Payment Processing Department. AmeriHealth held Dixon accountable to meet objective performance standards. Having consistently failed to meet the required performance objectives, Dixon’s employment was terminated. Despite her performance deficiencies, Dixon now asserts AmeriHealth subjected her to unlawful discrimination, retaliation and harassment. Plaintiff’s allegations, which AmeriHealth emphatically denies, are false. At this initial stage, however, this Court must accept the allegations in Dixon’s Complaint as true. Because Plaintiff’s Complaint fails to state any plausible claims, AmeriHealth respectfully requests that this Court dismiss her Complaint. Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 1 of 16 2 ACTIVE\49423711.v2-6/12/17 II. ALLEGED FACTS AND PROCEDURAL BACKGROUND AmeriHealth hired Plaintiff in or about April 2008 as a Claims Service Representative. (Compl. ¶ 4.) Plaintiff is African-American. (Compl. ¶ 1.) In or about November 2010, Plaintiff’s supervisor was Vicky Meager (“Meager”), a Caucasian woman. (Compl. ¶ 6.) It is Plaintiff’s view that Meager subjected Plaintiff and Plaintiff’s African-American co-workers to “unfair scrutiny and harassment.” (Compl. ¶ 7.) Plaintiff perceived Ms. Meager as showing “favoritism and deference” to Caucasian workers, allegedly providing training and assistance to Caucasian employees that was not provided to African-American employees. (Compl. ¶ 8-9.) Plaintiff alleges that Meager subjected her to unspecified discipline in July and September of 2013, which Plaintiff alleges was “unfair and unwarranted.” (Compl. ¶ 11.) Plaintiff maintains that she complained about Meager’s allegedly unfair and discriminatory actions to Susan Weed, AHA’s Human Resources Director, in September 2013. (Compl. ¶ 12.) While Meager then was “placed on corrective action,” Plaintiff believes Meager “continued to discriminate against” Plaintiff. (Compl. ¶ 13-14.) Plaintiff maintains that AHA did not satisfactorily address Plaintiff’s complaint. (Compl. ¶ 10.) In or about February 2014, Plaintiff filed “a charge of discrimination alleging race discrimination in the workplace.” (Compl. ¶ 15.) On or about June 15, 2014, AHA terminated Plaintiff’s employment, due to Plaintiff’s poor performance. (Compl. ¶ 17.) On March 31, 2017 - nearly three years after her termination from AHA - Dixon filed a three-count complaint. See ECF No. 1. Count I alleges discrimination on the basis of race and color under 42 U.S.C. § 1981. (Compl. ¶¶ 23-26.) Count II alleges retaliation under 42 U.S.C. § 1981. (Compl. ¶¶ 27-30.) Count III purports to allege an unspecified and amorphous number of “state law claims.” (Compl. ¶¶ 31-33.) Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 2 of 16 3 ACTIVE\49423711.v2-6/12/17 III. LEGAL ARGUMENT A. Standard of Review In order to survive a motion to dismiss under Rule 12(b)(6), a civil complaint “must allege facts that ‘raise a right to relief above the speculative level.’” Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Thus, the complaint must allege “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 Twombly, 550 U.S. at 570). Complaints that fail to allege “more than a sheer possibility that a defendant has acted unlawfully” must be dismissed. Id. Similarly, a complaint that alleges only facts that are “‘merely consistent with’ a defendant's liability . . . ‘stops short of the line between possibility and plausibility’ of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). Determining plausibility is a “context-specific task” requiring the court to use “judicial experience and common sense.” Iqbal, 556 U.S. at 679. First, the court must “‘tak[e] note of the elements plaintiff must plead to state a claim.’” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (citing Iqbal, 556, U.S. at 675). Second, the court must identify allegations that represent mere “legal conclusions” or “naked assertions.” Twombly, 550 U.S. at 555, 557. Any such allegations are “not entitled to the assumption of truth” and must be disregarded by the district court. Iqbal, 556 U.S. at 679. Third, the court should accept well-pleaded factual allegations as true and “determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 675. That is, the court assesses “the ‘nub’ of the plaintiff['s] complaint-the well-pleaded, non-conclusory factual allegation[s] . . . to determine” whether the Complaint Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 3 of 16 4 ACTIVE\49423711.v2-6/12/17 sufficiently states a plausible claim. Id. Complaints, such as Plaintiff’s, that fail to do so must be dismissed. B. Plaintiff Fails to State a Claim under 42 U.S.C. § 1981 Because Her Allegations Fail to Plausibly Suggest Discrimination or Harassment.________ Plaintiff fails to state a plausible claim of race and/or color discrimination under 42 U.S.C. § 1981 because her Complaint’s allegations - even if true - fail to create “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). Plaintiff’s claims of disparate treatment under 42 U.S.C. § 1981 are governed generally by the McDonnell Douglas burden-shifting framework. Stewart v. Rutgers, The State Univ. of N.J., 120 F.3d 426, 431-32 (3d Cir. 1997) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 791 (1973)). This framework requires Plaintiff to show: “(1) that [s]he is a member of a protected class, and (2) is qualified for the position but (3) was . . . fired from that position (4) under circumstances that give rise to an inference of unlawful discrimination.” Jones v. Sch. Dist. of Philadelphia, 19 F. Supp. 2d 414, 418 (E.D. Pa. 1998) (citing Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066 (3d Cir. 1996)). Plaintiff’s claims of harassment under 42 U.S.C. § 1981 require her to show, inter alia, that she was subject to harassment because of her race that was either “severe or pervasive” or that harassment resulted in adverse employment action. Griffin v. Harrisburg Prop. Servs., 421 Fed. Appx. 204, 207 (3d Cir. 2011) (quoting Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled in part on other grounds, 548 U.S. 53 (2006)); Hunt v. City of Markham, Ill., 219 F.3d 649, 653-54 (7th Cir. 2000). Even accepting all its allegations as true, Plaintiff’s Complaint simply does not allege sufficient facts to “give rise to a plausible inference that” she is “entitle[d] . . . to relief.” Iqbal, 556 U.S. at 682. The non-conclusory allegations Plaintiff asserts can be succinctly summarized Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 4 of 16 5 ACTIVE\49423711.v2-6/12/17 as follows: her supervisor showed undefined “favoritism and deference” to Caucasian employees by providing them with unspecified “training . . . assistance . . . [and] guidance” allegedly not provided to herself (Compl. ¶¶ 8-9); she received unspecified “unfair and unwarranted discipline,” (Compl. ¶ 11); and she was subject to unspecified “corrective action” at an unspecified time, (Compl. ¶ 13.) Apart from conclusory or formulaic allegations that this Court must disregard - Iqbal, 556 U.S. at 678 - Plaintiff pleads no facts plausibly linking the latter two allegations to her race or color. As to the nebulous allegations regarding favoritism in training, assistance, and/or guidance, Plaintiff fails to provide even the most minimal factual details to describe such favoritism-such as, for example, which employees were subject to this disparity; on or about which dates such activity occurred; what types of work tasks were involved in the supposed favoritism; how this favoritism affected Plaintiff in her work tasks, if at all; or how this alleged favoritism resulted in adverse employment action(s). While AHA recognizes Plaintiff is not required to definitively prove her case at the pleading stage, her Complaint’s non-conclusory factual allegations fail to describe “circumstances that give rise to an inference of unlawful discrimination,” Jones, 19 F. Supp. 2d at 418, or harassment that is “severe or pervasive.” Griffin, 421 Fed. Appx. at 207 (3d Cir. 2011). Such “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a plausible claim under 42 U.S.C. § 1981 for disparate treatment or harassment. Iqbal, 556 U.S. at 678. Nor can Plaintiff succeed in her attempt to shoehorn “pattern or practice” allegations to manufacture plausibility in her individual disparate treatment claims. The Supreme Court outlined the guidelines of a pattern or practice disparate treatment claim in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). As a general matter, the Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 5 of 16 6 ACTIVE\49423711.v2-6/12/17 Teamsters pattern or practice framework is a two-stage framework. Teamsters, 431 U.S. at 360. First, the plaintiff must demonstrate that “unlawful discrimination has been a regular procedure or policy followed by an employer.” Id. Next, the employer must rebut this showing - akin to the McDonnell Douglas burden-shifting framework, 411 U.S. 791. Id. In short, the Teamsters framework allows proof of a pattern or practice of discrimination against a certain protected subset of employees to substitute for individual plaintiffs’ respective individual prima facie cases. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 875-77 (1984) (citing Teamsters, 431 U.S. at 336). As such, significant appellate authority exists for the proposition that pattern or practice allegations under the Teamsters framework are limited to the class action context. See, e.g., Davis v. Coca-Cola Bottling Consol., 516 F.3d 955, 967-69 (11th Cir. 2008) (holding pattern and practice allegations only available in class action context), abrogated on other grounds as stated in LaCroix v. Western Dist. of Kentucky, 627 Fed. Appx. 816, 818 (11th Cir. 2015) ; Bacon v. Honda of Am. Mfg., 370 F.3d 565, 575 (6th Cir. 2004) (“pattern-or-practice method of proving discrimination is not available to individual plaintiffs”); Brown v. Coach Stores, Inc., 163 F.3d 706, 711 (2d Cir. 1998); but see Obrey v. Johnson 400 F.3d 691, 694-95 (9th Cir. 2005). Although the Third Circuit has not explicitly decided this issue, a recent decision strongly suggests the Third Circuit accepts this position. See Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 178-79 (3d Cir. 2009) (vacating class certification of an Americans with Disabilities Act pattern or practice claim and remanding for failure to meet Rule 23 requirements). In this case, Plaintiff has made a number of pattern or practice allegations. (Compl. ¶¶ 7- 9, 19, 22.) However, her Complaint includes no class allegations and otherwise fails to meet the Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 6 of 16 7 ACTIVE\49423711.v2-6/12/17 requirements of Rule 23. See generally Fed. R. Civ. P. 23. In light of the weight of appellate authority on this issue, Plaintiff’s factual allegations asserting a pattern or practice of discrimination cannot - as a matter of law - state a plausible claim for her individual discrimination claims. Because such allegations do not implicate “‘the elements plaintiff must plead to state a claim’” of individual discrimination, this Court should disregard them in determining plausibility of her individual claims. Connelly, 809 F.3d at 787 (citing Iqbal, 556, U.S. at 675). Stripped of pattern or practice allegations, and as described more fully above, Plaintiff’s Complaint simply falls short of the required plausibility threshold. For these reasons, Plaintiff’s allegations of race and/or color discrimination under 42 U.S.C. § 1981 fail to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. As such, AHA respectfully requests this Court dismiss Count I. C. Plaintiff Fails to State a Retaliation Claim under 42 U.S.C. § 1981 Because Her Complaint Fails to Plausibly Allege Protected Activity or Causation.____ Count II, which fails to allege sufficient facts regarding Plaintiff’s alleged protected activity or the nexus of that activity to adverse employment actions, fails to state a plausible claim for retaliation under 42 U.S.C. § 1981. Retaliation claims under 42 U.S.C. § 1981 require a plaintiff to show that: “(1) [plaintiff] engaged in protected activity, (2) [plaintiff’s] employer took an adverse employment action against [her], and (3) there was a causal connection between [plaintiff’s] participation in the protected activity and the adverse employment action.” Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010) (citing Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006)). Plaintiffs alleging retaliation under Section 1981 must also ultimately show “‘that there ha[s] been an underlying section 1981 violation.’” Id. (citing CBOCS West, Inc., 553 U.S. at 442). A key inquiry to Plaintiff’s retaliation claim is whether “the alleged Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 7 of 16 8 ACTIVE\49423711.v2-6/12/17 retaliation ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Estate of Oliva, 604 F.3d at 798 (quoting Moore, 461 F.3d at 341). Even accepting all the allegations of the Complaint as true, Plaintiff has only made two non-conclusory factual allegations that could conceivably qualify as protected activity for the purposes of her retaliation claim. First, Plaintiff alleges that “[i]n September of 2013, [she] complained to [AHA’s] Human Resources Director” about her supervisor, Ms. Meager’s supposed “unfair and discriminatory treatment of her.” (Compl. ¶ 12.) Second, Plaintiff alleges that “[i]n February of 2014, [she] filed a charge of discrimination alleging race discrimination in the workplace,” although Plaintiff fails to plead, inter alia, which agency or agencies with whom she filed the charge, as well as any facts regarding the outcome of same. (Compl. ¶ 15.) Thus, as currently pled, Plaintiff’s ability to plausibly allege retaliation is limited to one or both of these incidents. Plaintiff’s alleged internal complaint in September of 2013 does not support a plausible claim of retaliation under 42 U.S.C. § 1981 because she fails to plausibly allege a causal connection to alleged adverse employment action(s) and fails to allege that the discriminatory treatment was on account of race or color. The majority of Plaintiff’s factual allegations asserting a retaliation theory, (see, e.g., Compl. ¶¶ 21, 27-29,) constitute formulaic, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, [and] do not suffice” to state a plausible claim. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). While Plaintiff pleads that she was subject to “unfair and unwarranted discipline” also in September 2013, it appears - although unclear - from the Complaint’s current structure that this discipline preceded her complaint; she also fails to allege that the discriminatory treatment was on account of race or color (Compl. ¶¶ 11-12.) Moreover, as to unspecified “corrective action” Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 8 of 16 9 ACTIVE\49423711.v2-6/12/17 she received at an unspecified date or dates, Plaintiff has not pled facts indicating that the unspecified “corrective action” was because of any alleged protected activity. (Compl. ¶ 13.) Thus, the only other non-conclusory allegation Plaintiff makes regarding adverse employment action is her June 2014 termination-which occurred a full nine months after her September 2013 internal complaint. (Compl. ¶¶ 12, 17.) However, as it concerns the causation requirement, the Third Circuit has disfavored retaliation claims on such attenuated temporal grounds in a variety of contexts. See, e.g., Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (“[i]n certain narrow circumstances, an ‘unusually suggestive’ proximity in time between the protected activity and the adverse action may be sufficient, on its own, to establish the requisite causal connection”) (internal citation and quotation omitted); Thomas-Taylor v. City of Pittsburgh, 605 Fed. Appx. 95, 99 (3d Cir. 2015) (“‘Although there is no bright line rule as to what constitutes unduly suggestive temporal proximity, a gap of three months between the protected activity and the adverse action, without more, cannot create an inference of causation . . . ’”) (citing LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007)). Absent temporal proximity suggesting causation, the Third Circuit has noted that causation can be inferred from a sustained pattern of discriminatory activity “or other types of circumstantial evidence, such as inconsistent reasons given by the employer for terminating the employee or the employer's treatment of other employees, that give rise to an inference of causation . . . ” Marra, 497 F.3d at 302) (citing Farrell v. Planters Lifesavers Co., 206 F.3d, 271, 280-81 (3d Cir. 2000)). And while Plaintiff need not make a heightened factual showing at this stage that might be required for her to survive a motion for summary judgment, she must still allege “sufficient factual matter . . . that allows the court to draw the reasonable inference that the defendant is liable” for the Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 9 of 16 10 ACTIVE\49423711.v2-6/12/17 claims alleged. Iqbal, 556 U.S. at 678. In this case, apart from a termination nine months after her alleged internal complaint, Plaintiff has pled no non-conclusory facts regarding adverse employment actions she suffered in connection with alleged protected activity. Thus, even when viewed in the light most favorable to Plaintiff, her Complaint “pleads facts that are ‘merely consistent with’ a defendant’s liability [but that] ‘sto[p] short of the line between possibility and plausibility.’” Id. (citing Twombly, 550 U.S. at 557) Nor can Plaintiff’s allegation of filing a charge of discrimination alleging race discrimination in February, 2014 support a plausible claim for retaliation. Plaintiff has not pled where she filed a charge, what it alleged or whether any notice of the charge was provided to AHA (Compl. ¶ 15).1 AHA first received notice of this charge after July 2, 2014 - the date the notice of the charge was sent to AHA by the U.S. Equal Employment Opportunity Commission (“EEOC”) (Ex. A). Plaintiff has not pled any facts that AHA had knowledge of her charge of discrimination prior to terminating her employment. Plaintiff cannot plausibly state she suffered adverse employment action directly as a result of alleged protected activity without AHA having knowledge of same. See Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010) (requiring causal connection between a Section 1981 Plaintiff’s protected activity and the adverse employment action) (internal citation omitted). Put another way, Plaintiff cannot 1 Although outside the scope of the complaint, in July, 2014, AHA did receive a notice that a charge was filed with the Equal Employment Opportunity Commission dated July 2, 2014. Notably, AHA was first served with this charge nearly three weeks after Plaintiff’s alleged retaliatory termination on June 15, 2014. (Ex. A at 1; Compl. ¶¶ 15, 21, 28-30.) The notice is attached hereto as Exhibit “A.” Without an allegation that AHA knew that a charge was filed, it would be impossible for AHA to engage in any retaliation for this purportedly protected activity. Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 10 of 16 11 ACTIVE\49423711.v2-6/12/17 plausibly allege her termination was retaliatory when AHA had no notice of protected activity prior to her termination. For these reasons, AHA respectfully requests this Court dismiss Count II of Plaintiff’s Complaint. D. Plaintiff’s Unspecified and Amorphous “State Law Claims” Fail to State Any Plausible Claim for Relief. Count III purports to allege a potpourri of “state law claims.” Compl. ¶ 31-33. It is difficult to discern how Count III even remotely qualifies as a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Specifically, Count III alleges: The conduct of Defendants [sic] as alleged in the foregoing claims for relief constitutes discrimination, harassment, and retaliatory discharge in violation of AmeriHealth Administrators’ handbook. Defendant has at all times material to the foregoing claims acted willfully and with malice toward Plaintiff, Defendant knew, or reasonably should have known, that the aforementioned conduct was a violation of its handbook, policies and work rules and the laws of Pennsylvania and the United States. Defendant took no action to cease its wrongful conduct, and, in fact, committed further acts designed to cover the patent discrimination against Plaintiff because of her race and color in violation of the Pennsylvania Human Relations Act. Compl. ¶¶ 32-33. Although Count III lists a dizzying number of theories of relief in kitchen- sink fashion, it fails to plead sufficient facts to state a plausible claim for relief. 1. Plaintiff Fails to State a Plausible PHRA Claim. _ Count III of Plaintiff’s Complaint fails to state a plausible claim under the Pennsylvania Human Relations Act (“PHRA”), 43. P.S. §§ 951, et seq., for two reasons. First, Plaintiff has failed to allege that she exhausted her administrative remedies-an express requirement of the PHRA. Second, Plaintiff has failed to allege facts plausibly stating a PHRA claim. Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 11 of 16 12 ACTIVE\49423711.v2-6/12/17 First, Plaintiff has failed to adequately plead exhaustion of administrative remedies. The procedures outlined by the PHRA provide the exclusive state law remedy for workplace discrimination. See 43 P.S. § 962(b); see also Clay v. Advanced Comput. Applications, Inc., 559 A.2d 917, 920-21 (Pa. 1989). Under the PHRA, a person “claiming to be aggrieved by an alleged unlawful discriminatory practice” must file an administrative complaint with the Pennsylvania Human Relations Commission (“PHRC”). 43 P.S. § 959(a). A complaint must be filed within 180 days after the alleged discriminatory act. 43 P.S. § 959(h). If the PHRC dismisses the complaint or if one year elapses since the filing of the complaint without further PHRC action, the PHRC “must so notify the complainant.” 43 P.S. § 962(c)(1). Upon receiving such notice, the complainant may bring a private civil suit. Id. With respect to the mandatory PHRA administrative charge process, Plaintiff alleges only that she “filed a charge of discrimination alleging race discrimination in the workplace” in February 2014. Compl. ¶ 15. Plaintiff’s Complaint does not include factual allegations regarding the contents of this charge; nor does she even allege with which, if any, agency the charge was filed. Plaintiff fails to plead that she exhausted her administrative remedies-a mandatory prerequisite to a plausible PHRA claim. Second, as to the remainder of the Complaint, the sum total of Plaintiff’s non-conclusory purported allegations under the PHRA include: (1) that her supervisor “showed favoritism and deference” to Caucasian employees by providing them “with training and assistance,” as well as unspecified “guidance” that African-American employees supposedly did not receive, (Compl. ¶¶ 8-9); (2) that she was subject to unspecified “unfair and unwarranted discipline,” (Compl. ¶ 11); and (3) that she was subject to unspecified “corrective action” at an unspecified time, (Compl. ¶ 13.) The latter two of these allegations fail to include non-conclusory factual support Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 12 of 16 13 ACTIVE\49423711.v2-6/12/17 linking these alleged actions by AHA to her race. See Jones v. Sch. Dist of Philadelphia, 19 F. Supp. 2d at 418 (noting that PHRA plaintiffs must ultimately show adverse employment action “under circumstances that give rise to an inference of unlawful discrimination . . . ”) (citing Sheridan, 100 F.3d 1061 at 1066). As to the allegation regarding supposed lack of training, assistance, and guidance provided to her, this allegation, without more, is “‘merely consistent with’ a defendant's liability . . . [but] ‘stops short of the line between possibility and plausibility’ of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). Simply put, these allegations fail to “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 675. 2. Plaintiff Fails to State a Plausible Claim for Alleged Handbook, Policy and/or Work Rule Violations.__________________________________ Count III’s allegations that AHA committed “discrimination, harassment, and retaliatory discharge in violation of AmeriHealth Administrators’ handbook,” see Compl. ¶ 32, or that AHA’s actions “violat[ed] its handbook, policies and work rules,” see Compl. ¶ 33, also fail to state plausible claims for two reasons. First, Plaintiff’s Complaint utterly fails to plead any facts that could plausibly support these theories of relief. For example, Plaintiff’s Complaint, while purporting to assert entitlement to relief on the basis of a handbook violation, fails to plead any facts regarding, inter alia: (1) the existence of an AHA employee handbook, if any; (2) when she received same and from whom she received it, if at all; (3) whether she signed an acknowledgement of same; (4) a description of any specific policy or policies therein she contends have been violated; or (5) any facts that plausibly suggesting her entitlement to relief on the basis of a handbook violation. Plaintiff’s Complaint is similarly devoid of any factual allegations regarding “policies and work rules” that Plaintiff contends entitle her to relief. Compl. ¶ 32. In this vein, Plaintiff’s allegations of handbook, policy, and/or work rule violations constitute precisely the sort of Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 13 of 16 14 ACTIVE\49423711.v2-6/12/17 “threadbare recitals” and “mere conclusory statements” for which Iqbal and Twombly demand dismissal. Iqbal, 556 U.S. at 678 (citing Twombly 550 U.S. at 555). Second, although stylized as separate theories of relief, Plaintiff’s common law claims of handbook, policy, and/or work rule violations are preempted by the PHRA. The PHRA clearly states “as to acts declared unlawful by section five of this act the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the complainant concerned.” 43 P.S. § 962(b). The Pennsylvania Supreme Court has held this provision to preempt common law discrimination claims that fail to follow the PHRA’s prescribed administrative charge process: Thus, the statutory scheme would be frustrated if aggrieved employees were permitted to circumvent the PHRC by simply filing claims in court. This would result in the very sort of burdensome, inefficient, time consuming, and expensive litigation that the PHRC was designed to avert, and would substantially undermine the proper role of the PHRC. Certainly, by requiring initial utilization of administrative remedies, aggrieved parties are not deprived of their ultimate resort to the courts . . . [T]here is no basis for belief that there was intended to be broad and unrestricted access to civil actions, outside of the PHRA, alleging discriminatory termination of at-will employment. The intended forum for addressing grievances of the sort presented in this case is the PHRC. Clay v. Advanced Comput. Applications, Inc., 559 A.2d 917, 920-21 (Pa. 1989); see also Bonham v. Dresser Indus., Inc., 569 F.2d 187, 195 (3d Cir. 1979) (“[T]ermination based on age would violate . . . the [PHRA] and would trigger the remedies provided by that act. We conclude that the Pennsylvania courts would not hold that termination . . . gives rise to an independent common law cause of action in addition to those statutory remedies.”). Plaintiff’s allegations of handbook, policy, and/or work rule violations are exactly the sort of common law claims that the PHRA, as interpreted by the Pennsylvania Supreme Court, Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 14 of 16 15 ACTIVE\49423711.v2-6/12/17 preempts. Indeed, Plaintiff explicitly characterizes these allegations as “constitut[ing] discrimination, harassment, and retaliatory discharge.” Compl. ¶ 32. Because the PHRA provides the exclusive remedy for such allegations, Plaintiff cannot state a plausible claim for handbook, policy, and/or work rule violation. See 43 P.S. § 962(b); Clay, 559 A.2d at 920-21. As such, AHA respectfully requests Count III be dismissed with prejudice. 3. Plaintiff’s Amorphous Allegations Asserting “Violation[s] of . . . the Laws of Pennsylvania and the United States Fail to State a Plausible Claim.______________________________________________________ Count III’s contends that AHA’s “conduct was a violation of . . . the laws of Pennsylvania and the United States.”2 Compl. ¶ 33. These nebulous allegations decline to mention whether the asserted violations generally implicate statutory, regulatory, or common law at the state and/or federal level. Nor do they cite any specific statute, regulation, or case law to establish what specific aspects of state and/or federal law AHA allegedly violated. Plaintiff’s allegations are therefore so vague and conclusory that they fail to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal citation and quotation omitted). Because these allegations represent precisely the sort of “‘naked assertion[s]’ devoid of ‘further factual enhancement’” rejected by Iqbal and Twombly, AHA respectfully requests this Court grant its motion to dismiss. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557). 2 To the extent these allegations can be read as alleging claims under the PHRA or Pennsylvania common law, Plaintiff has failed to state plausible claims, and AHA respectfully refers the Court to its arguments regarding same set forth more fully above. See sections III-D-1 and III-D-2, supra. Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 15 of 16 16 ACTIVE\49423711.v2-6/12/17 IV. CONCLUSION For the foregoing reasons, Plaintiff fails to plausibly state a claim entitling her to relief. Accordingly, and pursuant to Rule 12(b)(6), AHA requests that the Court dismiss Plaintiff’s complaint. Dated: June 12, 2017 Respectfully submitted, /s/ Steven K. Ludwig - Steven K. Ludwig, Esquire Brian J. McGinnis, Esquire Fox Rothschild LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103-3222 (215) 299-2164/2042 (215) 299-2150 (facsimile) sludwig@foxrothschild.com bmcginnis@foxrothschild.com Counsel for Defendant, AmeriHealth Administrators, Inc. Case 2:17-cv-01520-JD Document 5-2 Filed 06/12/17 Page 16 of 16 EXHIBIT A Case 2:17-cv-01520-JD Document 5-3 Filed 06/12/17 Page 1 of 2 Case 2:17-cv-01520-JD Document 5-3 Filed 06/12/17 Page 2 of 2