Howze v. City of Pittsburgh

BRIEF in Opposition re Motion to Dismiss for Failure to State a Claim

W.D. Pa.June 9, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ANASTACIA HOWZE, Plaintiff, v. CITY OF PITTSBURGH et al., Defendants. Case No. 2:16-cv-1298-CRE BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS BRIEF AND NOW, comes the Plaintiff, Anastacia Howze, by and through her attorneys Kraemer, Manes & Associates, LLC and Martell Harris, Esquire, and files this Brief in Opposition, arguing as follows: PROCEDURAL HISTORY On April 20, 2017, Plaintiff filed an Amended Complaint in the above-captioned case. On May 18, 2017, Defendants filed a timely Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). This Brief in Opposition follows. ARGUMENT A. Plaintiff’s Discrimination Claims are not Based upon Warnings and Threats Plaintiff alleges two materially adverse actions in relation to her claims in this lawsuit. First, Plaintiff alleges that she was subject to a hostile work environment based on harassment immediately following her numerous reports of previously suspected discrimination, and when policies were disparately applied against her. (Plaintiff’s Complaint, ECF No. 1, ¶¶ 18-19; 25-30; 35-36; 38-44; 49; and, 57). Second, Plaintiff alleges that her job duties and work locations were materially altered immediately Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 1 of 10 following her numerous reports of previously suspected discrimination, inclusding her eventual termination. (ECF No. 1, ¶¶ 25-27; 29-31; 35; 37; 39; 41; 51; and, 59). Moreover, Defendants’ reliance on Weston v. Pennsylvania, 251 F.3d 420 (3d. Cir. 2001) is misguided as the case, in part, has been overruled, in part, by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). In Burlington, the Supreme Court clarified some of the points in what a plaintiff must allege. The requirement is that a plaintiff must show that a reasonable employee would have found the action materially adverse. Rochon v. Gonzales, 438 F.3d 1211, 1219 (2006). Burlington illustrated that the court “phrase[d] the standard in general terms because the significance of any given …will often depend upon the particular circumstances. Context matters.” Burlington, 548 U.S. at 69. The Court in Burlington went on to explain that a legal standard in general terms is preferable over prohibiting specific acts, because an act that would be considered immaterial in some situations would be material in other situations. Id., citing Washington v. Illinois Department of Revenue, 420 F.3d 6658, 661 (2015). The relevant inquiry is whether the plaintiff has suffered an adverse employment action under circumstances which raise an inference of unlawful discrimination. Waldron v. SL Industries, Inc., 56 F.3d 491, 494 (3d Cir. 1995). Plaintiff’s burden at this step is “minimal’ and is viewed as a means of presenting a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. Id. A Western District of Pennsylvania Court has noted that “The scope of Title VII's anti-retaliatory provision is broader than its anti-discrimination provision. It protects an employee from ‘retaliation that produces an injury or harm.’” Nolan v. Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 2 of 10 Swartz Campbell, LLC, 2:05-CV-1508, 2008 WL 598291, at *18 (W.D. Pa. Feb. 29, 2008) (quoting Burlington, 126 S.Ct at 2414). Plaintiff was given numerous warnings and threats, each of which caused any additional discipline she may receive to be more severe. Eventually, Plaintiff was terminated. This contrast factually from the cases Defendant uses to substantiate that a disciplinary warning is not materially adverse; Kasper v. Cty. Of Bucks, 514 Fed. Appx. 210 (3d. Cri. 2013) and Weston v. Pennsylvania, 251 F.3d 420 (3d. Cir. 2001). In Kasper, Kasper made a complaint to a supervisor about discriminatory practices from a co-worker. 514 Fed. Appx. at 212. The co-worker was then forced to apologize for the harassment. 514 Fed. Appx. at 212. Approximately a year later, Kasper was given a warning due to not complying with FMLA procedures. Kasper subsequently resigned alleging that these warnings were discriminatory and in retaliation of her previous complaint. 514 Fed. Appx. at 213. The Third Circuit Court of Appeals ultimately ruled that the Kasper’s claims were vague assertions and affirmed the District Court’s determination that this particular disciplinary warning was merely a “minor annoyance.” 514 Fed. Appx. at 217. In comparison to the case at hand, Plaintiff filed charges with the EEOC, Plaintiff alleged with specificity to the nature of the retaliatory actions, Plaintiff was given numerous warnings and threats, and Plaintiff was terminated in fulfilment of these retaliatory threats. The court in Kasper does not elaborate that all warnings are not materially adverse. Moreover, the court in Kasper specifically relied on the fact that Kasper resigned in its analysis that the warnings were not materially adverse. Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 3 of 10 Similarly, in Weston, Weston alleged that the two written reprimands he received from his employer were in retaliation to a harassment complaint he had made to a supervisor. 251 F.3d at 431. However, the court found that these reprimands did effect a material change in the terms or conditions of the Weston’s employment. Weston did not get demoted, his schedule did not change, he was not reassigned to a different position, he was not denied any pay raises or promotions, his hours or work were not altered, and he was not terminated. 251 F.3d at 431. Once again, this fact pattern differs from the one in the instant case, as Plaintiff was in fact terminated as part of the retaliatory warnings she received. Therefore, the reprimands did effect a material change in Plaintiff’s terms and conditions of employment. Regardless, the Supreme Court has already stated that facts and context determine whether an action was materially adverse. Burlington, 548 U.S. at 69. Defendants argue that the disciplinary actions and warnings are not materially adverse without fully considering the context of the particular circumstances of this case. Therefore, Defendant’s first argument in support of its Motion to Dismiss should be rejected. B. Plaintiff has Exhausted her Administrative Remedies The receipt of a right to sue letter is not the measurement of exhaustion as relates to administrative remedies. The PHRA does not required the complainant to receive a right to sue letter. 43 P.S. § 955; see also, Barra v. Rose Tree Media School Dist., 858 A.2d 206, 211 (Pa.Cmwlth. 2004). After the expiration of one year, a complainant may bring suit, regardless of whether or not she has received a letter from the PHRC. 43 P.S. § 962. Lukus v. Westinghouse Elec. Corp., 419 A.2d 431 (Pa.Super.Ct.1980)(holding that a Plaintiff need not wait for the physical receipt of the right to sue from the PHRC, and to Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 4 of 10 require otherwise would “impose a useless procedural formality on aggrieved individuals, with the awkward consequence of requiring an aggrieved individual file two court actions whenever the PHRC violated its duty under Section 962(c) to give the required notice: one action in mandamus, to force to the PHRC to give notice; the second action against the alleged discriminator, after the notice is obtained.”) This is a “procedural technicality that would serve no substantive purpose” Id. This analysis is crystallized in Snyder v. Pennsylvania Ass’n of School Retirees where the Superior Court ruled “We believe that the time lapse question is crucial to a disposition of the allegations appearing in the appellant’s original and amended PHRC complaints.” 586 A.2d 1235 (Pa.Super.Ct.1989). The Court cites Lukus with approval that “where a complainant has not had his/her grievance resolved by the PHRC within one year of filing of the same, then the PHRA authorized the grievant to pursue another avenue of recourse; more particularly, the judicial system and this is so even though no “notice” of discontinuance/dismissal is forwarded to the complainant by the PHRC.” Id. at 1240. The court goes on to “string-cite” eleven Pennsylvania cases that agree with that interpretation, and conclude that “to hold otherwise would not be consistent with our interpretation of the law on the subject, and, in passing, we would note that it is not uncommon for the cases before the PHRC to be protracted” Id. (surveying PHRC investigations lasting up to eight years). As Plaintiff has exhausted her administrative remedies, by timely filing a Charge of Discrimination, and waiting one year before filing the instant lawsuit, Defendant’s second argument in support of its Motion to Dismiss should be rejected. Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 5 of 10 C. Plaintiff’s Claims from the April 7, 2017 Charge Should Not be Dismissed Any failure of a complainant to exhaust her administrative remedies does not affect the Court’s subject matter jurisdiction. Hornsby v. United States Postal Service, 787 F.2d 87, 89 (3d Cir.1986) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392–98, 102 S.Ct. 1127, 1131–35, 71 L.Ed.2d 234 (1982)). Furthermore, the requirement that a complainant should exhaust all administrative remedies is “practical, rather than a matter affecting the substantive justice.” Anjelino v. New York Times Co., 200 F.3d 73, 87–88 (3d Cir. 1999). The rule is meant to “provide courts with the benefit of an agency’s expertise.” Anjelino v. New York Times Co., 200 F.3d 73, 87–88 (3d Cir. 1999) (citing Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir.1997)). In situations in which discriminatory actions continue after the filing of an EEOC complaint, the victim is not required to file additional EEOC complaints and restart the 180 day waiting period. Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984); “Requiring a new EEOC filing for each and every discriminatory act would not serve the purposes of the statutory scheme where the later discriminatory acts fell squarely within the scope of the earlier EEOC complaint or investigation.” Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). Once a charge has been filed with the EEOC, “the parameters of the civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the Commission.” Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398–99 (3d Cir. 1976). The purpose of the jurisdictional prerequisites are to allow the EEOC to give notice to the employer and to make an investigation to determine whether there is Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 6 of 10 reasonable cause to believe that the charge is true. Branum v. United Parcel Serv., Inc., 232 F.R.D. 505, 509 (W.D. Pa. 2005). In the Plaintiff’s first EEOC charge, filed on September 29, 2014, Plaintiff addresses that she was not promoted due to her race and sex. In the Plaintiff’s second EEOC charge, filed on April 9, 2015, Plaintiff states that she received discriminatory written warnings in retaliation to her original EEOC charge. In plaintiff’s third EEOC charge, filed on August 31, 2015, Plaintiff explains that she was demoted on the basis of her race, disability, and in relation for filing the previous EEOC charges of discrimination. Therefore, Plaintiff’s fourth EEOC charge, in regards to Plaintiff being terminated discriminatorily and in retaliation for filing previous EEOC charges, would be well within the scope of the Defendant’s discriminatory and retaliatory practices outlined in the Plaintiff’s previous EEOC charges. This Court will have the benefit of the EEOC’s and the PHRC’s investigations from four administrative charges. Even though the fourth charge in question is still underway, the investigation could be completed before the commencement of trial. Moreover, the investigation of any of the prior three charges could yield findings of discrimination alleged in Plaintiff’s fourth charge. Therefore, Defendant’s third argument in support of its Motion to Dismiss should be rejected. D. Plaintiff’s Charges Adequately Encompasses Hostile Work Environment A reasonable investigation into Plaintiff’s administrative complaints would have revealed the various allegations as contained in the Complaint. At the Motion to Dismiss stage, Defendant’s argument should be denied, as it requires the Court to evaluate facts and evidence outside of those alleged in the Complaint. These arguments are more appropriate for summary judgment, wherein the Court can compare the evidence Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 7 of 10 uncovered in discovery, and the reasonability for that evidence to have been encompassed in a reasonable administrative agency investigation, based on the charges. Carr v. NJ., 2010 WL 2539782 (D.N.J. 2010). In Carr, the Court quoted the Third Circuit stating that a plaintiff can “pursue claims formally alleged in the Charge, as long as the Charge contained sufficient information pointing to the claim’s existence, such that the EEOC should have been alerted.” Id. Furthermore, the parameters of a district court case are defined by the scope of the EEOC investigation, “which can reasonably be expected to grow out of the charge of discrimination.” Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976). A district court is not confined to the actual charge. To fulfil the requirement, the charge must illustrate scope of the circumstances, which would allow a court to find the charge fully encompassed the allegations not specifically listed in the charge. Moreover, the Third Circuit has held that a hostile work environment claim encompasses all individual discriminatory acts, “Under the continuing violation doctrine, discriminatory acts that are not individually actionable may be aggregated to make out a hostile work environment claim; such acts ‘can occur at any time so long as they are linked in a pattern of actions which continues into the applicable limitations period.’” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (quoting O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)). Plaintiff alleged claims regarding her disability in two of her charges. Specifically, that Defendants failed to accommodate her disability, she was harassed by her boss, she was assigned new duties because of her race and disability, as well as several retaliation incidents. A reasonable investigation would lead to a finding that the Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 8 of 10 above claims constituted a hostile work environment based on her disability. Therefore, Defendant’s fourth argument in support of its Motion to Dismiss should be rejected. E. Plaintiff’s Charge Adequately Encompasses Sex and/or Gender Discrimination Claim For the same reasons as stated in above in ¶D, a reasonable investigation into Plaintiff’s administrative complaints would have revealed the various allegations as contained in the Complaint. Additionally, once a charge has been filed, the scope of the federal complaint is “not limited to the four corners of the administrative charge.” Bailey v. Storlazzi, 1999 PA Super 97, ¶ 19, 729 A.2d 1206, 1215 (1999) (citing Doe v. Kohn Nast & Graf, 866 F.Supp. 190, 195 (E.D.Pa.1994)). The parameters of the federal complaint are defined by the scope of the agency’s investigation, “which can reasonably be expected to grow out of the charge of discrimination” Hicks v. ABT Associates, Inc., 572 F.2d 960, 965 (3d Cir.1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977)). Plaintiff’s claims in PHRC No. 2013-07419 adequately alleges a sex and/or gender discrimination claim. The Charge states that Plaintiff was not promoted based on her protected class as a female employee. A reasonable investigation would yield pay disparities between male and female employees, including the Plaintiff, due to promotions or lack thereof. Therefore, Defendant’s fifth argument in support of its Motion to Dismiss should be rejected. F. Plaintiff’s Federal Discrimination and Retaliation Claims Based on ¶¶ 6 – 10 are not Untimely Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 9 of 10 Plaintiff clarifies that the factual allegations asserted in ¶¶ 6 – 10 of the Amended Complaint involve state law claims. Plaintiff clarifies that Plaintiff is only advancing state law violations in regards to ¶¶ 6 – 10. CONCLUSION Defendant’s Partial Motion to Dismiss should be denied without prejudice, and enter the attached proposed order. Respectfully submitted, KRAEMER, MANES & ASSOCIATES, LLC /s/Martell Harris Martell Harris, Esquire Pa. Id. No. 319504 Attorneys for Anastacia Howze U.S. Steel Tower 600 Grant Street, Suite 4875 Pittsburgh, PA 15219 412.626.5585 (p) 412.637.0231 (f) mh@lawkm.com Case 2:16-cv-01298-CRE Document 30 Filed 06/09/17 Page 10 of 10