Dougherty v. City of Philadelphia et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.October 11, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOSEPH P. DOUGHERTY, : : Plaintiff, : : v. : Civil Action No. 16-4579 : CITY OF PHILADELPHIA, et al., : : Defendants. : ORDER AND NOW, this __________ day of ____________________, 2016, upon consideration of Defendants’ Partial Motion to Dismiss and any response thereto, it is hereby ORDERED and DECREED that Defendants’ motion is GRANTED and Counts II, III, IV, and VI of Plaintiff’s complaint are DISMISSED. BY THE COURT: ____________________________ C. DARNELL JONES, J. Case 2:16-cv-04579-CDJ Document 5 Filed 10/11/16 Page 1 of 9 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOSEPH P. DOUGHERTY, : : Plaintiff, : : v. : Civil Action No. 16-4579 : CITY OF PHILADELPHIA, et al., : : Defendants. : DEFENDANTS’ PARTIAL MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendants file this Partial Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. Pro. 12(b)(6), seeking to dismiss a Counts II, III, IV, and VI of Plaintiff’s Complaint. Defendants respectfully request that this Court dismiss the above-listed Counts on the grounds more fully described in the supporting memorandum of law, attached hereto. Respectfully Submitted, CITY OF PHILADELPHIA LAW DEPARTMENT Date: October 11, 2016 BY: s/ Frank E. Wehr II Frank E. Wehr II Assistant City Solicitor Pa. Attorney ID No. 318464 City of Philadelphia Law Dept. 1515 Arch St., 16th Fl. Philadelphia, PA 19102 (215) 683-5183 Case 2:16-cv-04579-CDJ Document 5 Filed 10/11/16 Page 2 of 9 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOSEPH P. DOUGHERTY, : : Plaintiff, : : v. : Civil Action No. 16-4579 : CITY OF PHILADELPHIA, et al., : : Defendants. : DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendants City of Philadelphia and Dell Meriwether (hereinafter, “Defendants”), through undersigned counsel, move to dismiss the following claims in Plaintiff’s Complaint for the following reasons: First, Plaintiff’s disparate impact claims (Counts II, IV, and VI) should be dismissed because Plaintiff has not alleged a facially neutral policy and therefore cannot establish a prima facie case for disparate impact discrimination. Second, Plaintiff’s claims under 42 U.S.C. §1981 (Counts III and IV) should be dismissed because Plaintiff cannot sue state actors for discrimination under 42 U.S.C. §1981. Third, should this Court decide not to dismiss Counts III and VI for reasons argued in Sections II.1. and II.2. of this Motion, this Court should dismiss Count IV because 42 U.S.C. §1981 does not afford Plaintiff’s the right to make a disparate impact” claim. I. STANDARD OF REVIEW 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). In deciding a motion to dismiss, a court must determine whether the Case 2:16-cv-04579-CDJ Document 5 Filed 10/11/16 Page 3 of 9 4 complaint “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Further, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. II. ARGUMENT 1. Plaintiff’s Disparate Impact Claims Fail Because Plaintiff Has Not Alleged the Existence of a Facially Neutral Policy. Plaintiff has brought disparate impact theory of liability claims under Title VII, 42 U.S.C. §1981, and the PHRA. These claims fail because Plaintiff has not alleged that the City of Philadelphia had a facially neutral policy that caused the alleged disparate impact. Disparate impact claims “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). See also, McNeil v. Greyhound Lines, Inc., 982 F. Supp. 2d 447, 450 (E.D. Pa. 2013). “Thus, as a threshold matter, a plaintiff making a disparate impact claim must establish that the challenged employment practice or policy does not distinguish on its face between different groups.” McNeil, 982 F. Supp. 2d at 450. Case 2:16-cv-04579-CDJ Document 5 Filed 10/11/16 Page 4 of 9 5 Plaintiff alleges that the City of Philadelphia gave preferred work assignments to two alleged comparators instead of Plaintiff based on their respective races, and that these work assignments afforded the comparators greater promotional opportunity. Pl.’s Compl. ¶¶ 10-35. The policy at issue is, according to Plaintiff, explicitly race-based, not facially neutral. While the Defendants deny Plaintiff’s allegations that the alleged comparators were afforded work assignments and Plaintiff was denied such assignments because of race, Plaintiff’s claim clearly sounds under a disparate treatment, rather than disparate impact, theory of liability. As such, Plaintiff’s Counts II, IV, and VI, which represent Plaintiff’s disparate impact theory claims, should be dismissed. 2. Plaintiff’s 42 U.S.C. §1981 Claims Fail Because Defendants are State Actors Plaintiff has brought claims under 42 U.S.C. § 1981 against the City of Philadelphia and Dell Meriwether, an employee of the City of Philadelphia. Pl.’s Compl. ¶¶ 68-101. These claims should be dismissed in because § 1981 claims cannot be brought against state actors. State actors may not be held liable under 42 U.S.C. § 1981; rather, 42 U.S.C. § 1983 provides the exclusive federal damages remedy for the violation of rights guaranteed by § 1981 when the alleged violation is by a state actor. McGovern v. City of Philadelphia, 554 F.3d 114, 120–21 (3d Cir. 2009); see also, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989); Allen v. Sweeney, No. CIV.A. 11-5602, 2012 WL 5897584, at *6 (E.D. Pa. Nov. 20, 2012) (dismissing multiple individually named defendants because they were state employees, and thus state actors who cannot be sued under § 1981). Here, Plaintiff has attempted to bring suit under § 1981 against a municipality – the City of Philadelphia – and Dell Meriwether, who was, according to Plaintiff, acting under color of state law as an employee of the City of Philadelphia. Both defendants, therefore, are state actors. Case 2:16-cv-04579-CDJ Document 5 Filed 10/11/16 Page 5 of 9 6 Because state actors cannot be sued for discrimination under § 1981, Plaintiff does not have a cause of action under § 1981 against either named Defendant, and both of Plaintiff’s claims under 42 U.S.C. §1981 must be dismissed. 3. Plaintiff’s Disparate Impact Claim Under 42 U.S.C. §1981 Should be Dismissed Because 42 U.S.C. §1981 Does Not Afford Plaintiff the Right to Make Such A Claim Plaintiff’s disparate impact claim under 42 U.S.C. §1981 should be dismissed because 42 U.S.C. §1981 only prohibits intentional discrimination, not discrimination that flows from facially neutral policies. 42 U.S.C. § 1981 prohibits only intentional discrimination. Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 562 (3d Cir. 2002). In contrast, disparate impact claims “involve employment practices that are facially neutral in their treatment of different groups but fall more harshly on one group more than another and cannot be justified by business necessity.” Pollard v. Wawa Food Mkt., 366 F. Supp. 2d 247, 252 (E.D. Pa. 2005) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). “Proof of discriminatory motive … is not required under a disparate-impact theory.” Id. As such, disparate impact claims are not actionable under section 1981. Pollard, 366 F. Supp. 2d at 252. In Pollard, as in the present matter, the Plaintiff alleged discrimination under 42 U.S.C. § 1981 using a disparate impact theory of liability. Pollard, 366 F. Supp. 2d at 252-53. The District Court granted summary judgment for the Defendant on Plaintiff’s 42 U.S.C. § 1981 disparate impact discrimination claim because § 1981 does not protect individuals against non- intentional discrimination, as the Plaintiff claimed in its disparate impact claim. Id. Plaintiff has alleged discrimination under 42 U.S.C. §1981 under both the disparate treatment (Count III) and disparate impact (Count IV). As is discussed above in Section I of this Case 2:16-cv-04579-CDJ Document 5 Filed 10/11/16 Page 6 of 9 7 motion, while Defendants deny the claims of discrimination alleged by Plaintiff, the alleged facts of this case are that of disparate treatment claim, not that of a disparate impact claim. Here, Plaintiff has only asserted facts supporting intentional and direct discrimination, and has articulated those claims in her “Disparate Treatment” claim under § 1981. The Courts in this circuit have clearly established that Plaintiffs cannot allege a disparate impact claim under § 1981, and as such, Plaintiff’s disparate impact § 1981 claim here should be dismissed. III. CONCLUSION In conclusion, all of Plaintiff’s disparate impact claims (Counts II, IV, and VI) should be dismissed because Plaintiff has not alleged a facially neutral policy and therefore cannot establish a prima facie case for disparate impact discrimination. Additionally, Plaintiff’s claims under 42 U.S.C. §1981 (Counts III and IV) should be dismissed because Plaintiff cannot sue state actors for discrimination under 42 U.S.C. §1981. Finally, should this Court decide not to dismiss Counts III and VI for reasons argued in Sections I and II of this Motion, this Court should dismiss Count IV because 42 U.S.C. §1981 does not afford Plaintiff’s the right to make a “Disparate Impact” claim. [Signature on Next Page] Case 2:16-cv-04579-CDJ Document 5 Filed 10/11/16 Page 7 of 9 8 Respectfully Submitted, CITY OF PHILADELPHIA LAW DEPARTMENT Date: October 11, 2016 BY: s/ Frank E. Wehr II Frank E. Wehr II Assistant City Solicitor Pa. Attorney ID No. 318464 City of Philadelphia Law Dept. 1515 Arch St., 16th Fl. Philadelphia, PA 19102 (215) 683-5183 Case 2:16-cv-04579-CDJ Document 5 Filed 10/11/16 Page 8 of 9 9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JOSEPH P. DOUGHERTY, : : Plaintiff, : : v. : Civil Action No. 16-4579 : CITY OF PHILADELPHIA, et al., : : Defendants. : CERTIFICATE OF SERVICE I, Frank E. Wehr II, hereby certify that on this date I caused the foregoing Defendants City of Philadelphia’s Partial Motion to Dismiss Plaintiff’s Complaint to be filed electronically, where it is available for viewing and downloading. Respectfully Submitted, CITY OF PHILADELPHIA LAW DEPARTMENT Date: October 11, 2016 BY: s/ Frank E. Wehr II Frank E. Wehr II Assistant City Solicitor Case 2:16-cv-04579-CDJ Document 5 Filed 10/11/16 Page 9 of 9