Drummer v. Hospital of The University of Pennsylvania

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and For Insufficient Service of Process

E.D. Pa.November 23, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LEE J. DRUMMER JR. Plaintiff, v. HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA, Defendant. : : : : : : : : Case No. 2:16-cv-02982-CMR (Honorable Cynthia M. Rufe) DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(B)(5) AND 12(B)(6) Defendant, The Trustees of the University of Pennsylvania (incorrectly identified in the caption as “Hospital of the University of Pennsylvania”) (“Penn”), by and through counsel, respectfully moves this Court for an Order dismissing pro se Plaintiff Lee J. Drummer Jr.’s Complaint for insufficient service of process and for failure to state a claim upon which relief can be granted. In support of this Motion, Penn avers as follows: 1. On June 14, 2016, pro se Plaintiff Lee J. Drummer Jr. (“Plaintiff”) filed a Complaint alleging that he was discriminated, harassed, and retaliated against by Penn in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Americans with Disabilities Act of 1990 (“ADA”). (Doc. No. 1). 2. On June 17, 2016, this Court granted Plaintiff leave to proceed in forma pauperis, and ordered the United States Marshal for the Eastern District of Pennsylvania to serve the Summons and Complaint upon Penn. (Doc. No. 2). 3. On July 12, 2016, this Court referred Plaintiff’s case to the Eastern District of Pennsylvania’s Plaintiff Employment Panel for the possible appointment of counsel, and placed this matter in suspense. (Doc. No. 5). Case 2:16-cv-02982-CMR Document 8 Filed 11/23/16 Page 1 of 3 4. On November 7, 2016, Penn received Plaintiff’s Complaint and Summons via the United States Postal Service. (See Decl. of Helen Logan, attached to the accompanying Memorandum of Law at Exhibit B). 5. Plaintiff failed to serve the Summons and Complaint in accordance with Rule 4 of the Federal Rules of Civil Procedure. Accordingly, his Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process. 6. Additionally, the vast majority of the allegations set forth in the Complaint took place more than 300 days prior to the date that Plaintiff filed his Charge with the EEOC- March 10, 2016-and thus are time-barred. (Compl. at pp. 4, 14-18). 7. The only facts alleged to have occurred within the statute of limitations fail to state a claim upon which relief can be granted under any of the above-mentioned statutes. Thus, Plaintiff’s Complaint should also be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). WHEREFORE, Penn respectfully requests that the instant Motion to Dismiss be granted and that Plaintiff’s Complaint be dismissed with prejudice, together with such other relief which this Court deems just and appropriate. Penn relies upon the Memorandum of Law in Support filed alongside this Motion and incorporated by reference herein. A proposed Order granting the requested relief accompanies this Motion. Case 2:16-cv-02982-CMR Document 8 Filed 11/23/16 Page 2 of 3 Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. DATED: November 23, 2016 By: /s/ Donald D. Gamburg Donald D. Gamburg, Esq. (PA #76855) Jessica M. Bocchinfuso, Esq. (PA #314371) 1735 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 995-2800 (Telephone) (215) 995-2801 (Facsimile) donald.gamburg@ogletreedeakins.com jessica.bocchinfuso@ogletreedeakins.com Attorneys for Defendant, The Trustees of the University of Pennsylvania Case 2:16-cv-02982-CMR Document 8 Filed 11/23/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LEE J. DRUMMER JR. Plaintiff, v. HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA, Defendant. : : : : : : : : Case No. 2:16-cv-02982-CMR (Honorable Cynthia M. Rufe) DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(B)(5) AND 12(B)(6) Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 1 of 15 ii TABLE OF CONTENTS I. INTRODUCTION....................................................................................................................1 II. FACTUAL AND PROCEDURAL BACKGROUND...........................................................1 III.ARGUMENT............................................................................................................................4 A. Plaintiff’s Complaint Should Be Dismissed for Insufficient Service of Process...........4 B. Plaintiff’s Complaint Should Be Dismissed for Failure to State a Claim Upon Which Relief Can Be Granted ..........................................................................................5 1. Any Facts Alleged to Have Occurred Prior to May 15, 2015 Are Time- Barred ...........................................................................................................................6 2. Plaintiff Fails to State a Prima Facie Case of Discrimination .................................7 3. Plaintiff Fails to State a Prima Facie Case of Retaliation ........................................9 IV. CONCLUSION ......................................................................................................................10 Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 2 of 15 iii TABLE OF AUTHORITIES Page(s) Cases Abramson v. William Patterson College of New Jersey, 260 F.3d 265 (3d Cir. 2001).......................................................................................................9 Ashcroft v. Iqbal, 556 U.S. 662 (2009)...........................................................................................................5, 6, 9 Barber v. CSX Distribution Servs., 68 F.3d 694 (3d Cir. 1995).......................................................................................................10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)...................................................................................................................5 Churchill v. Star Enterprises, 183 F.3d 184 (3d Cir. 1999).......................................................................................................6 Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001).................................................................................................................10 Dyer v. Wal-Mart Stores, Inc., 318 F. App’x 843 (11th Cir. 2009) .............................................................................................4 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009).......................................................................................................6 Fusco v. Bucks Cnty. of Pa., 2009 WL 4911938 (E.D. Pa. Dec. 18, 2009).............................................................................7 Golod v. Bank of America Corp., 403 F. App’x 699 (3d Cir. 2010) ...........................................................................................8, 9 Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100 (3d Cir. 2009).......................................................................................................9 Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259 (3d Cir. 2007).....................................................................................................10 Larsen v. Mayo Med. Cir., 218 F.3d 863 (8th Cir. 2000) ......................................................................................................4 Moore v. City of Philadelphia, 461 F.3d 331 (3d Cir. 2006).......................................................................................................9 Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 3 of 15 iv National R.R. Corp. v. Morgan, 536 U.S. 101 (2002)...............................................................................................................6, 7 O’Connor v. City of Newark, 440 F.3d 125 (3d Cir. 2006)...................................................................................................6, 7 Reed v. Weeks Marine, Inc., 166 F. Supp. 2d 1052 (E.D. Pa. 2001) .......................................................................................4 Resh v. Brosnac, 2012 WL 1114583 (E.D. Pa. Mar. 30, 2012).............................................................................4 Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010).......................................................................................................6 Sarullo v. U.S. Postal Serv., 352 F.3d 789 (3d Cir. 2003).......................................................................................................8 Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995).........................................................................................................8 Warfield v. SEPTA, 460 F. App’x 127 (3d Cir. 2012) ...............................................................................................8 Watson v. Eastman Kodak Co., 235 F.3d 851 (3d Cir. 2000).......................................................................................................6 Williams v. Phila. Housing Auth. Police Dept., 380 F.3d 751 (3d Cir. 2004) ................................................................................................8, 10 Statutes Age Discrimination in Employment Act of 1967 ....................................................................1, 6, 8 Americans with Disabilities Act of 1990.................................................................................1, 6, 8 Title VII of the Civil Rights Act of 1964............................................................................... passim Other Authorities Federal Rule of Civil Procedure 4(h)...........................................................................................4, 5 Federal Rule of Civil Procedure 12(b)(5) ........................................................................................4 Federal Rule of Civil Procedure 12(b)(6) ........................................................................................5 Pennsylvania Rule of Civil Procedure 424 ......................................................................................5 Rule 4(e)(1) ..................................................................................................................................4, 5 Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 4 of 15 1 I. INTRODUCTION Pro se Plaintiff Lee J. Drummer Jr. (“Plaintiff”) has brought claims against his former employer, The Trustees of the University of Pennsylvania (incorrectly identified in the Complaint as “Hospital of the University of Pennsylvania”) (“Penn”), for race, color, and gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), age discrimination under the Age Discrimination in Employment Act of 1967 (“ADEA”), and disability discrimination under the Americans with Disabilities Act of 1990 (“ADA”). He also alleges harassment and retaliation, although it is not clear from the Complaint which statute he intends to invoke for these claims. Plaintiff improperly served the Summons and Complaint upon Penn, using standard mail as opposed to personal service as required by the Federal Rules of Civil Procedure. Additionally, most of Penn’s actions alleged in the Complaint are time-barred, and the allegations that are not time-barred fail to raise an inference of discrimination, harassment, or retaliation of any kind. Instead, the Complaint demonstrates that Plaintiff received discipline and that his employment was ultimately terminated due to his own disorganization and poor work performance. For all of these reasons, Plaintiff’s Complaint should be dismissed in its entirety with prejudice. II. FACTUAL AND PROCEDURAL BACKGROUND1 In 2008, Plaintiff alleges that Penn hired him as a secretary and placed him in the Founders 12 hospital unit. According to Plaintiff, Founders 12 received the most admissions, discharges, and additional duties of any unit. Another male of unknown race, color, age, or disabled status was allegedly placed in a unit with fewer patients, which Plaintiff asserts 1 The Complaint is difficult to follow at times, but Penn has attempted to concisely summarize the relevant factual allegations herein. Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 5 of 15 2 somehow constitutes an act of retaliation, although he provides no further explanation. Plaintiff claims to have been bullied and humiliated by his fellow secretaries “since [he] can remember,” although the only example he provides of this “bullying” and “humiliation” is being called “Leroy.” (Compl. at p. 14). In the “last year of his employment,” which appears to refer to 2014 through early March 2015, Plaintiff alleges that his supervisor, Nicole Nolte (“Ms. Nolte”), issued him written warnings “probably over 10 times,” and placed him on a Performance Improvement Plan (“PIP”), although he does not allege that any of this discipline or the PIP was unwarranted. As a result of these disciplinary actions and a low evaluation score, Plaintiff claims to have received lower wages than some of his co-workers. He also states that he was instructed to report mistakes by other secretaries, and when he did so, he was ridiculed and “fussed out” the following day. Further, he alleges that he worked optional shifts on Thanksgiving and Christmas in 2014. Finally, according to Plaintiff, during this time period he suffered from depression, although no one at Penn “knew anything out of the ordinary” about his mental health until March 2015. (Id. at pp. 14-17). On the evening of March 16, 2015, Plaintiff admits that he lost a note that a doctor had asked him to place in a patient’s file. The following day, when a co-worker questioned him about the note, he “feverishly” attempted to locate it, dumping out and digging through the contents of recycling bins. While Plaintiff was in the midst of attempting to organize the contents of the recycling bins on the floor of a closet, Ms. Nolte allegedly called Plaintiff into her office. Although he does not recall any specifics about the conversation that followed, he allegedly “let [Ms. Nolte] know that [he] felt [he] was being harassed and discriminated against, and [he] was in a depressed state because of it and would be seeking medical assistance and a Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 6 of 15 3 stress [leave of absence].” However, when Ms. Nolte called her supervisor, Betty Ann Boczar (“Ms. Boczar”), into the meeting, Plaintiff explained that his depression stemmed from his separation from his wife and children. Ms. Boczar allegedly suggested that Plaintiff take a week off to clear his head and consider taking a leave of absence. Plaintiff decided to take a leave of absence beginning March 18, 2015.2 (Id. at pp. 17-18). Plaintiff states that during his leave he decided that he would not return to Founders 12. On June 5, 2015, he allegedly received a letter from Penn stating that if he did not respond by June 8, 2015, his employment would be terminated. When he called on June 8, 2015, Plaintiff claims he was instructed to report to Founders 12 on June 10, 2015. When he reported to Ms. Nolte’s office on June 10, 2015, he was informed that his employment would be terminated. According to Plaintiff, the “events that lead [sic] to . . . the termination were due to a Doctor’s/Patient history physical that was missing.” (Id.). Plaintiff filed a Charge of Discrimination with the EEOC on March 10, 2016, wherein he acknowledged that he was terminated for poor performance, that others outside of his protected classes did not receive preferential treatment, and that he never complained about being treated differently because of his membership in a protected class. (See Charge of Discrimination, attached hereto at Exhibit A). On March 17, 2016, the EEOC dismissed Plaintiff’s Charge and issued him a Notice of Right to Sue. (Compl. at p. 19). Plaintiff filed his Complaint on June 14, 2016. On June 17, 2016, this Court granted Plaintiff in forma pauperis status, and ordered service of the Complaint and Summons by the United States Marshal for the Eastern District of Pennsylvania. (Doc. No. 2). On July 12, 2016, 2 At one point, the Complaint states that Plaintiff’s request for a leave of absence was denied. (See Compl. at p. 18). However, the Complaint makes clear that Plaintiff worked his last shift on March 17, 2015, and he did not return to work until June 10, 2015. Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 7 of 15 4 this Court referred Plaintiff’s case to the Eastern District of Pennsylvania’s Plaintiff Employment Panel for the possible appointment of counsel and placed this case in suspense. (Doc. No. 5). On November 7, 2016, Penn received Plaintiff’s Complaint and Summons in the mail via the United States Postal Service. (See Decl. of Helen Logan, attached hereto as Exhibit B, at ¶ 4). For the reasons that follow, Plaintiff’s Complaint should be dismissed with prejudice because (i) Plaintiff failed to properly serve the Summons and Complaint, and (ii) the Complaint fails to state a claim upon which relief can be granted. III. ARGUMENT A. Plaintiff’s Complaint Should Be Dismissed for Insufficient Service of Process Plaintiff failed to comply with Rule 4 of the Federal Rules of Civil Procedure in serving the Summons and Complaint upon Penn, warranting dismissal under Federal Rule of Civil Procedure 12(b)(5). See Reed v. Weeks Marine, Inc., 166 F. Supp. 2d 1052, 1054 (E.D. Pa. 2001) (district courts empowered to dismiss civil actions for insufficiency of service of process). “In resolving a motion under Rule 12(b)(5), the party making the service has the burden of demonstrating its validity when an objection to service is made.” Id. Federal Rule of Civil Procedure 4(h) provides, in pertinent part, that service upon a corporation in a judicial district of the United States must be made either: “(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process. . . .” Fed. R. Civ. P. 4(h). “For service to be proper under Rule 4(h)(1)(B), the summons and complaint must be delivered personally, rather than by mail.” Resh v. Brosnac, 2012 WL 1114583, at *2 (E.D. Pa. Mar. 30, 2012) (citing Dyer v. Wal-Mart Stores, Inc., 318 F. App’x 843, 844 (11th Cir. 2009); Larsen v. Mayo Med. Ctr., 218 F.3d 863, 868 (8th Cir. 2000)). Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 8 of 15 5 Rule 4(e)(1) provides that service upon an individual within a judicial district of the United States may be made by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). Pennsylvania Rule of Civil Procedure 424, in turn, provides that [s]ervice of original process upon a corporation or similar entity shall be made by handing a copy to any of the following persons provided the person served is not a plaintiff in the action: (1) an executive officer, partner or trustee of the corporation or similar entity, or (2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or (3) an agent authorized by the corporation or similar entity in writing to receive service of process for it. Pa. R. Civ. P. 424 (emphasis added). Plaintiff served the Summons and Complaint upon Penn by mail through the United States Postal Service. (See Exhibit B at ¶¶ 4-5). As Penn is a corporation within the Commonwealth of Pennsylvania, all valid means of service required personal delivery of the Summons and Complaint upon an appropriate agent of Penn. (Id. at ¶ 3); Fed. R. Civ. P. 4(h). Because Plaintiff failed to properly serve the Summons and Complaint, dismissal of the Complaint is appropriate. B. Plaintiff’s Complaint Should Be Dismissed for Failure to State a Claim Upon Which Relief Can Be Granted In addition to the reasons set forth above regarding improper service, Plaintiff’s Complaint should also be dismissed for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). A plaintiff must plead more than “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, “a plaintiff must Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 9 of 15 6 show that the allegations of his or her complaint are plausible” and a “complaint has to ‘show’ such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 556 U.S. at 677-80). The Third Circuit has explained that to determine the sufficiency of a complaint: [f]irst, the court must tak[e] note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of the truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). Because the vast majority of Plaintiff’s allegations are time-barred and the remaining timely allegations fail to plausibly state a claim for discrimination or retaliation, Plaintiff’s Complaint should be dismissed. 1. Any Facts Alleged to Have Occurred Prior to May 15, 2015 Are Time- Barred3 In Pennsylvania, a plaintiff bringing a claim under Title VII, the ADEA, or the ADA must file a Charge with the EEOC within 300 days of an alleged unlawful employment practice in order to later challenge those practices in court. Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000) (Title VII and ADEA claims must be raised before an administrative agency within 300 days); Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir. 1999) (“a party who brings an employment discrimination claim under Title I of the ADA must follow the administrative procedures set forth in Title VII”). Discrete discriminatory or retaliatory acts, such as termination, failure to promote, wrongful discipline, or denial of transfer, that have not been raised in a Charge within 300 days of their occurrence are time-barred. National R.R. Corp. v. Morgan, 536 U.S. 101, 113-14 (2002); O’Connor v. City of Newark, 440 F.3d 125, 127 (3d 3 In addition to being time-barred, Plaintiff’s pre-May 15, 2015 allegations also fail to raise an inference of discrimination for the reasons set forth at Section III.B.2, infra. Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 10 of 15 7 Cir. 2006). This is so even when the discrete acts “are related to acts alleged in timely filed charges.” Morgan, 536 U.S. at 113. Plaintiff filed his Charge with the EEOC on March 10, 2016. (See Exhibit A). Thus, any discrete discriminatory actions alleged to have occurred more than 300 days before the filing of the Charge-or before May 15, 2015-are untimely and not actionable. Plaintiff attempts to base his claims on a number of alleged acts dating all the way back to his hire in 2008. Prior to mid-March 2015, he claims to have been subjected to a number of discrete acts including being placed in an unfavorable unit, being called Leroy, being “fussed out” for reporting other secretary’s mistakes, working optional shifts on Thanksgiving and Christmas, receiving several written warnings, and being placed on a PIP. Even considering the allegations that undoubtedly do not constitute discriminatory acts, such as, without limitation, Plaintiff choosing to work an optional holiday shift or being called “Leroy,” all of the acts described by Plaintiff constitute discrete acts causing the statute of limitations to begin immediately. See O’Connor, 440 F.3d at 126-27, n.1 (non-exhaustive list of discrete acts includes unfavorable transfers, wrongful discipline); Fusco v. Bucks Cnty. of Pa., 2009 WL 4911938, at *8 (E.D. Pa. Dec. 18, 2009) (“failure to promote, wrongful discipline, compensation decisions, and undesirable assignments are discrete events”). As all of these alleged discrete actions took place more than 300 days before Plaintiff filed his EEOC Charge, they are time- barred and no longer actionable. 2. Plaintiff Fails to State a Prima Facie Case of Discrimination Plaintiff alleges that the following acts occurred on or after May 15, 2015: (1) after nearly three months of a leave of absence, he received a letter stating that he must respond by June 8, 2015; and (2) his employment was terminated on June 10, 2015 due to poor performance after he misplaced a doctor’s note that belonged in a patient’s chart. (Compl. at p. 18). Neither of these Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 11 of 15 8 actions have any discernable relationship to Plaintiff’s membership in any protected class, and thus do not raise an inference of discrimination, as required to state a prima facie case for discrimination. In order to make out a prima facie case of discrimination under Title VII, the ADEA, or the ADA, the plaintiff must allege facts plausibly demonstrating that: (1) he belongs to a protected class; (2) he was qualified for his position; (3) an adverse employment action was taken against him; and (4) the circumstances give rise to an inference of discrimination. Warfield v. SEPTA, 460 F. App’x 127, 129-30 (3d Cir. 2012) (Title VII); Williams v. Phila. Housing Auth. Police Dept., 380 F.3d 751, 761 (3d Cir. 2004) (ADA); Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995) (ADEA). “The ‘central focus’ of the prima facie case is always whether the employer is treating some people less favorably than others because of their” membership in a protected class. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003) (citations and quotation marks omitted). An inference of discrimination may be raised through comparator evidence, evidence of similar discrimination of other employees, or direct evidence of discrimination from statements or actions by supervisors suggesting discriminatory animus. Golod v. Bank of America Corp., 403 F. App’x 699, 702 n.2 (3d Cir. 2010). Plaintiff admits to having an extensive disciplinary history and that he lost a doctor’s note that he was directed to place in a patient’s file on his last day working for Penn. He also admits that his poor performance was the reason for his termination. (Compl. at pp. 17-18; Exhibit A). The Complaint does not even generally plead that anyone of a different gender, race, or color, or anyone younger, or any non-disabled person with a similar history was given more favorable treatment, or that anyone outside of any protected class replaced him. Nor does the Complaint allege any statements, comments, or actions indicating discriminatory animus with respect to any Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 12 of 15 9 of Plaintiff’s protected classes. Plaintiff’s general allegations that he felt harassed and discriminated against constitute “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” that are insufficient to state a claim. Iqbal, 556 U.S. at 678. Consequently, Plaintiff has failed to raise an inference of discrimination as required to state a claim, and his discrimination claims should be dismissed accordingly. See Golod, 403 F. App’x at 702-03 (dismissal for failure to state a claim appropriate where plaintiff failed to plausibly allege any causal connection between her national origin and her employer’s decision to terminate her employment).4 3. Plaintiff Fails to State a Prima Facie Case of Retaliation In order to state a prima facie case of retaliation, a plaintiff must plead facts supporting a reasonable inference that: (1) he engaged in protected activity; (2) his employer took an adverse employment action against him; and (3) “there was a causal connection between h[is] participation in the protected activity and the adverse employment action.” Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006). Protected activity is defined as participation in certain administrative or court proceedings or opposition to discrimination made unlawful by Title VII or a related statute. Id. at 341. Here, the Complaint contains one sole allegation that even remotely resembles protected activity-Plaintiff’s complaint to Ms. Nolte and Ms. Boczar on March 17, 2015 that he felt he was being harassed and discriminated against. However, Plaintiff’s Charge makes clear that he did not raise any protected class when he made a complaint of “harassment” and 4 To the extent Plaintiff attempts to state a claim for a hostile work environment, that claim also fails for failure to raise an inference of discrimination. The first element of a hostile work environment claim is that an employee suffered intentional discrimination because of his or her membership in a protected class. See Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009); Abramson v. William Patterson College of New Jersey, 260 F.3d 265, 278-79 (3d Cir. 2001) (hostile work environment claim requires plaintiff to show that the conduct is based on his membership in a protected class). Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 13 of 15 10 “discrimination,” and the Complaint does not allege otherwise. (See generally Exhibit A; Compl.). Having failed to make any reference to any protected class in complaining to Ms. Nolte and Ms. Boczar, Plaintiff did not engage in protected conduct. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (protected activity standard requires a reasonable belief that the complained-of conduct violated Title VII); Barber v. CSX Distribution Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (general complaint about unfair treatment insufficient to establish protected activity). Therefore, his retaliation claim should be dismissed. Additionally, even if Plaintiff had plausibly alleged that he engaged in protected activity, he failed to assert any facts establishing a causal connection between a protected activity and his termination. In order to establish a causal connection, the Complaint must either show “(1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Plaintiff’s alleged complaint about unfair treatment occurred nearly three months prior to his termination, which is not unduly suggestive of retaliatory animus. Williams v. Philadelphia Housing Auth. Police Dept., 380 F.3d 751, 760 (3d Cir. 2004) (two months between protected activity and termination insufficient to establish causal link). Furthermore, the Complaint does not contain any allegations indicative of retaliatory animus. In fact, the Complaint and Plaintiff’s Charge clearly state that Penn terminated Plaintiff’s employment for entirely proper reasons-his poor work performance, and ultimately his misplacement of a patient’s medical note. Therefore, Plaintiff has failed to state a claim for retaliation, and that claim should also be dismissed accordingly. IV. CONCLUSION Plaintiff failed to properly serve the Summons and Complaint upon Penn, as required by the Federal Rules of Civil Procedure. Additionally, the vast majority of the allegations in the Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 14 of 15 11 Complaint are time-barred, and any timely allegations fail to state a claim for discrimination, harassment, or retaliation. For all of the foregoing reasons, Penn respectfully requests that the Court dismiss Plaintiff’s Complaint with prejudice. Respectfully submitted, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. /s/ Donald D. Gamburg__________ Donald D. Gamburg, Esq. (PA #76855) Jessica M. Bocchinfuso, Esq. (PA #314371) 1735 Market Street, Suite 3000 Philadelphia, PA 19103 Tel: (215) 995-2800 Fax: (215) 995-2801 donald.gamburg@ogletreedeakins.com jessica.bocchinfuso@ogletreedeakins.com November 23, 2016 Attorneys for Defendant, The Trustees of the University of Pennsylvania Case 2:16-cv-02982-CMR Document 8-1 Filed 11/23/16 Page 15 of 15 EXHIBIT A Case 2:16-cv-02982-CMR Document 8-2 Filed 11/23/16 Page 1 of 3 EEOGFomS(1l»8) Bill?? CHARGE OF DISCRIMINATION This form is affscted by the Privacy Act of 1974. See enclosed Privacy Act Statement and other Infoimatton before completing this torn. Charge Presented To: FEPA x EEOC Agency(ies) Charge No(s) 530-2016-01873 Pennsylvania Human Relations Commjssion and EEOC Siate or local Asensy, if any Name {isdlcate Mr., Ms., MR.) Mr. Lee J. Drummer Home Phone (Incl. Area Code) (216)223-1240 Date of Birth 07-30-1961 Street Address City, State and ZIP Code 2741 N. Croskey Street, Philadelphia, PA 19132 Named Is the Empioyer, labor Organization, Employment Agency, Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others, {if more than two, Its! under PARTICULARS balow.) Name UNIVERSITY OF PENNSYLVANIA HEALTH SYS Ha, &npl»yB»», M»mb»n 500 or More Phone No. (lacltide Area Code) Street Address 3400 Spruce St, Philadelphia, PA 19132 City, State and ZIP Goda Name No. Employees, Mnmbers Phone No. ffnc/ucte Area CotfeJ Street Address City, State and ZIP Code DISCRIMINATION BASED ON (Chwk appmptiste boxfts).) X I RACE | | COLOR SEX REUQION NATIONAL ORIQfN X I RETALIATION AGE x DISABitirf GENETIC INFORMATION OTHER {Specify) OATE(S) DISCRIMINATION TOOK PLACE Earliest Latest 06-23-2008 06«10«2015 CONTINUING ACTION THE PARTICUtARS ARE (If addittefSal paper te fleeded, affacft extm sheetfs)): I am an Afri^n-American, male that is disabled and that also has a disabled family member. In June of 2014, I leam^udyWaters (African-American, Female) and Lucy Sander (Afncan-American, Female) was making appro?i8Jateg$l ,40 more an hour. I Spoke with Marge Bowing (former Nurse Manager), Tiffany LNU (forme^ssi&iit Nurse Manager), and Nicole Nolte (Nurse Manager) when I teamed of the disparity until my dis^arg&.on 06/10/2015. Also, in 2014,1 was placed on a Performance Improvement Plan for poor perfontiflncethat lasted from June 2014-March 2.015. I alleged to Human Resources in March of 2015 that this PIS^as^&rassment by Nicole and Jenna Christiona Assistant Nurse Manager however, I did not alleged any pr{%cte<£;lass. It was suggested that I take a leave of absence because of personal issues I was having at home. On 05710/20151 was terminated for performance, Regarding the pay disparity, I informed the Respondent that they were under a settlement agreement from 2008 thatstatedthat my pay would raise to match the comparators and that I wgyld be free from haTassmeat, I want this charge filed with both the EEOC and the State or iocai Agency, If any. I will advise the agsncies if I change my address or phsne number and I wl!( cooperate fylfywfth them in the processing of my charge In accordance with their procedures. I declare under penalty of perjury that the above is true and correct. Mar 10,2016 AA- Date Cherglisg Petty Slynaltife NOTARY - When necessary for State anrf Local Agency RBquirBments I swear or affirm that I have read th® above charge and that It Is true to the best of my knowledge, information and belief, SIGNATURE OF COMPLAINANT $USSCR!BED AND SWORN TO BEFORE ME THIS DATE {month, day, yea?) Case 2:16-cv-02982-CMR Document 8-2 Filed 11/23/16 Page 2 of 3 ff^-r EEOO Form S (11/08) CHARGE OF DlSCRiMiNATEON This form te affected by the Privacy Act of 1 974. See enclosed Privacy Act Statement and other information before completing this form. Charge Presented To: FEPA EEOC Agency(ies) Charge No(s): 530-2016-01873 Pennsylvania Human Relations Commission and EEOC State or local Agency, tfsny No response was given to my requests. I was told that the reason for my termination was performance related. I believe that I have been discriminated and retaliated against in violation of Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967 and The Americans with Disabilities Act of 1990, as amended because of my race, my age, my disability and the disability of a family member. I believe that I was harassed by being placed on a performance improvement plan and by getting a low evaluation in Feb. of20I5.1 also believe that I was offered discriminatory terms and conditions despite my entire floor being subjected to pilot programs including non-disabled, African-American females, that caused an increase in our work . I allege that I experience a pay disparity because of my sex that. should have been corrected in 2008 however, was not. I also believe that I was retaliated against by being discharged after I had complained of "harassment" and "discrimination" despite not raising any protected class. Finally, I allege that I have been discharged due to my disability, the high medical costs of my disabled family member, my race, my age, my sex and in retaliation for engaging in a protected activity. i want this charge filed with both the EEOC and the State or local Agency, if any, I will advise the agencies If ! change my address or phone number and I will cooperate lully with them In the processing of my charge in accordance with thefr procedures. {declare under penaity of perjury that the above is true and correct. Mar 10,2016 Otite Charging Party Stgnatv/e NOTARY - When necessafy for Stale and Loca/ Agency RetjUlrBments t swear or affirm that I have read the above charge and that it Is true to the best of my knowledge, information and belief. StGNATURE OF COMPLAINANT SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (month, (Say, yeafj Case 2:16-cv-02982-CMR Document 8-2 Filed 11/23/16 Page 3 of 3 EXHIBIT B Case 2:16-cv-02982-CMR Document 8-3 Filed 11/23/16 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LEE J. DRUMMER JR. V. Plaintiff, HOSPITAL OF THE UMVERSITY OF PENNSYLVANIA, Defendant. Case No. 2:16-cv-02982-CMR (Honorable Cynthia M. Rufe) DECLARATION OF HELEN LOGAN S I, Helen Logan, declare the following to be tme and correct to the best of my knowledge, information, and belief: J 1. I am over 18 years of age and fully competent to make this Declaration, the contents of which are based upon my personal knowledge. 2. I am currently employed by The Tmstees of the University of Pennsylvania ("Penn") as Senior Administrator of Legal Services in the Office of the General Counsel. 3. Penn is a non-profit corporation with its registered business address at 3451 Walnut Street, Room 329, Philadelphia, PA 19104. Penn's Office of the General Counsel is located at 2929 Walnut Street, 4th Floor, Philadelphia, PA 19104. 4. On November 7, 2016, Penn received a Summons and the Complaint authored by Plaintiff Lee J. Drummer Jr. through regular mail, delivered by the United States Postal Service. 5. The Summons and Complaint in this matter have not been delivered to Pemi via personal service. Case 2:16-cv-02982-CMR Document 8-3 Filed 11/23/16 Page 2 of 3 I declare under penalty of perjury, pursuant to 28 U.S.C, § 1746, that the foregoing is frue and correct. Date: November 22,2016 Case 2:16-cv-02982-CMR Document 8-3 Filed 11/23/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LEE J. DRUMMER JR. Plaintiff, v. HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA, Defendant. : : : : : : : : Case No. 2:16-cv-02982-CMR (Honorable Cynthia M. Rufe) ORDER AND NOW, this _____ day of _________, 201__, upon consideration of Defendant’s Motion to Dismiss Plaintiff’s Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6), and any response thereto, it is hereby ORDERED that Defendant’s Motion to Dismiss is GRANTED and that Plaintiff’s Complaint is DISMISSED WITH PREJUDICE in its entirety. BY THE COURT: __________________________ Cynthia M. Rufe, J. Case 2:16-cv-02982-CMR Document 8-4 Filed 11/23/16 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LEE J. DRUMMER JR. Plaintiff, v. HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA, Defendant. : : : : : : : : Case No. 2:16-cv-02982-CMR (Honorable Cynthia M. Rufe) CERTIFICATE OF SERVICE I hereby certify that, on this 23rd day of November, 2016, a true and correct copy of the foregoing Defendant’s Motion to Dismiss Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(5) and 12(b)(6) was electronically filed with the Court and was served via Federal Express upon the following: Lee J. Drummer Jr. 2741 N. Croskey Street Philadelphia, PA 19132 /s/ Donald D. Gamburg Donald D. Gamburg Attorney for Defendant Case 2:16-cv-02982-CMR Document 8-5 Filed 11/23/16 Page 1 of 1