Morales v. Reading Truck Body, Llc

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.November 15, 2016

DM2\7307712.1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ISAAC MORALES, Plaintiff, v. READING TRUCK BODY, LLC, Defendant. CIVIL ACTION NO. 16-CV-05782-EGS DEFENDANT READING TRUCK BODY LLC’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Defendant Reading Truck Body, LLC hereby moves under Fed. R. Civ. P. 12(b)(6) to dismiss the Amended Complaint of Plaintiff Isaac Morales. The reasons for the Motion are set forth in the attached Memorandum of Law, which is incorporated herein. Respectfully submitted, DUANE MORRIS LLP By: /s/ Christopher D. Durham Christopher D. Durham Atty. I.D. No. 200687 Kathryn R. Brown Atty. I.D. No. 313834 Duane Morris LLP 30 S. 17th St. Philadelphia, PA 19103 Tel. 215.979.1000 Fax: 215.979.1020 Attorneys for Defendant Reading Truck Body, LLC Case 5:16-cv-05782-EGS Document 5 Filed 11/15/16 Page 1 of 1 DM2\7253965.6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ISAAC MORALES, Plaintiff, v. READING TRUCK BODY, LLC, Defendant. CIVIL ACTION NO. 16-CV-05782-EGS DEFENDANT READING TRUCK BODY LLC’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT DUANE MORRIS LLP Christopher D. Durham (Pa. I.D. No. 200687) Kathryn R. Brown (Pa. I.D. No. 313834) 30 S. 17th Street Philadelphia, PA 19103 Tel. 215.979.1000 Fax: 215.979.1020 Attorneys for Defendant Reading Truck Body, LLC Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 1 of 31 i DM2\7253965.6 TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. RELEVANT FACTUAL BACKGROUND ........................................................................2 III. PROCEDURAL HISTORY .................................................................................................4 IV. STANDARD OF REVIEW .................................................................................................4 V. ARGUMENT .......................................................................................................................5 A. Count I of the Amended Complaint Should Be Dismissed Because Plaintiff Fails to State a Claim of Race Discrimination as a Matter of Law. ......... 5 1. Plaintiff Pleads No Facts to Show That RTB Was His Employer or Committed An Adverse Action Against Him. ............................................ 6 2. Plaintiff Fails to Plead Facts Sufficient to Show That He Suffered an Adverse Action Under Circumstances Supporting An Inference of Discrimination............................................................................................. 8 B. Count II of the Amended Complaint Should Be Dismissed Because Plaintiff Cannot State a Claim of Hostile Work Environment as a Matter of Law. .................................................................................................................. 13 1. Plaintiff Fails to Plead Facts Sufficient to Show That He Was Harassed Because of His Hispanic Race. ................................................................. 14 2. Plaintiff Fails to Plead Facts Establishing that the Alleged Harassment Was Severe or Pervasive. .......................................................................... 15 3. Plaintiff Fails to Plead Facts Establishing That He Was Detrimentally Affected by the Alleged Harassment. ....................................................... 18 C. Count III of the Amended Complaint Should Be Dismissed Because Plaintiff Cannot State a Claim of Retaliation as a Matter of Law. ....................... 19 1. Plaintiff Pleads No Facts to Show That RTB Was His Employer Or Committed An Adverse Action Against Him. .......................................... 20 2. Plaintiff Fails to Plead Facts Sufficient to Show Any Causal Relationship Between His Protected Conduct and the Adverse Action. ....................... 21 D. Even if Plaintiff’s Claims are Not Dismissed, any Demand for Punitive Damages Under the PHRA Should Be Stricken Because Punitive Damages Are Not Recoverable Under the PHRA. ............................................... 23 Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 2 of 31 ii DM2\7253965.6 VI. CONCLUSION ..................................................................................................................24 Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 3 of 31 iii DM2\7253965.6 TABLE OF AUTHORITIES Federal Cases Allen v. Nutrisystem, Inc., No. 13-cv-2505, 546 F. App’x 98 (3d Cir. 2013)................................20 Andras v. Borough of Laceyville, No. 14-cv-2094, 2015 U.S. Dist. LEXIS 96290 (M.D. Pa. July 23, 2015) ..........................................................................................................10 Andreoli v. Gates, 482 F.3d 641 (3d Cir. 2007) ............................................................................14 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................2, 4 Badger v. Stryden, Inc., No. 09-cv-3619, 2016 U.S. Dist. LEXIS 69012 (E.D. Pa. May 26, 2016) ........................................................................................................................ 6-7 Barthold v. Briarleaf Nursing & Convalescent Ctr. Nursing Home, No. 13-cv- 2463, 2014 U.S. Dist. LEXIS 87602 (E.D. Pa. June 27, 2014) ...............................................19 Bartlett v. Kutztown Univ., No. 13-cv-4331, 2015 U.S. Dist. LEXIS 21665 (E.D. Pa. Feb. 23, 2015) ....................................................................................................................10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ........................................................... Passim Bellamy v. Waterfront Square Condos., No. 12-cv-6618, 2013 U.S. Dist. LEXIS 21926 (E.D. Pa. Feb. 19, 2013)................................................................................................19 Blakney v. City of Phila., No. 13-cv-3062, 559 F. App’x 183 (3d Cir. 2014) ...............................20 Braddock v. SEPTA, No. 13-cv-06171, 2014 U.S. Dist. LEXIS 165235 (E.D. Pa. Nov. 25, 2014) .........................................................................................................................19 Brown v. J. Kaz, Inc., 581 F.3d 175 (3d Cir. 2009) .........................................................................5 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ..................................................20 Cardenas v. Massey, 269 F.3d 251 (3d Cir. 2001) ..........................................................................6 Carvalho-Grevious v. Delaware State Univ., No. 13-cv-1386, 2015 U.S. Dist. LEXIS 132381 (D. Del. Sept. 30, 2015) ............................................................................ 22-23 Castleberry v. STI Grp., No. 15-cv-00153, 2016 U.S. Dist. LEXIS 80831 (M.D. Pa. June 22, 2016) .............................................................................................................. 16-17 Cauler v. Lehigh Valley Hosp., Inc., No. 15-cv-01082, 2015 U.S. Dist. LEXIS 63462 (E.D. Pa. May 14, 2015) .........................................................................................21, 23 Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005)..................................................................14 Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 4 of 31 iv DM2\7253965.6 Culler v. Sec’y of United States Veterans Affairs, No. 12-cv-1574, 507 F. App’x 246 (3d Cir. 2012) ........................................................................................................ 14-15, 18 De La Pena v. Metro. Life Ins. Co., 953 F. Supp. 2d 393 (E.D.N.Y. 2013), aff’d, 552 F. App’x 93 (2d Cir. Jan. 29, 2014). ........................................................................... 17-18 Doe v. Sizewize Rentals, LLC, No. 09-cv-3409, 2010 U.S. Dist. LEXIS 124623 (D.N.J. Nov. 22, 2010) ....................................................................................................... 13-15 Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173 (3d Cir. 2000) .................................4 Equal Employment Opportunity Comm’n v. Shell Oil Co., 466 U.S. 54 (1984) .............................7 Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ...................................................... 15, 17-18 Foster v. Wells Fargo Bank, No. 12-cv-6503, 2013 U.S. Dist. LEXIS 150707 (E.D. Pa. Oct. 18, 2013) ...........................................................................................................12 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) ............................................5, 13, 15, 23 Golod v. Bank of Am., No. 09-cv-2907, 403 F. App’x 699 (3d Cir. Dec. 13, 2010) .......................9 Greer v. Mondelez Global, Inc., No. 12-cv-3820, 590 F. App’x 170 (3d Cir. 2014) ......................6 Groeber v. Friedman and Schuman, P.C., No. 13-cv-2497, 555 F. App’x. 133 (3d Cir. 2014) .................................................................................................................................12 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ............................................................................15 Hasan v. Threshold Rehab., No. 13-cv-00387, 2014 U.S. Dist. LEXIS 40423 (E.D. Pa. Mar. 24, 2014) ..........................................................................................................16 Hassell v. Johnson & Johnson, No. 13-cv-4109, 2014 U.S. Dist. LEXIS 60503 (D.N.J. May 1, 2014) .........................................................................................................13, 23 Henry v. City of Allentown, No. 12-cv-1380, 2013 U.S. Dist. LEXIS 2399 (E.D. Pa. Jan. 7, 2013) .......................................................................................................................10 Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100 (3d Cir. 2009) ..........................13 Jensen v. Potter, 435 F.3d 444 (3d Cir. 2006) ...............................................................................15 Kelly v. Drexel Univ., 94 F.3d 102 (3d Cir. 1996) ...........................................................................5 Lauren W. v. DeFlaminis, 480 F.3d 259 (3d Cir. 2007) ................................................................22 Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 5 of 31 v DM2\7253965.6 LeBlanc v. The Hill Sch., No. 14-cv-1674, 2015 U.S. Dist. LEXIS 2981 (E.D. Pa. Jan. 12, 2015) .....................................................................................................................16, 20 Liles v. Revetaw, Inc., No. 2003-cv-88, 2009 U.S. Dist. LEXIS 17631 (D.V.I. Mar. 6, 2009).................................................................................................................... 7-8, 21 Little v. Chambersburg Hosp., No. 11-cv-01804, 2012 U.S. Dist. LEXIS 42589 (M.D. Pa. Mar. 28, 2012) .........................................................................................................16 McClendon v. Dougherty, No. 10-cv-1339, 2011 U.S. Dist. LEXIS 15381 (W.D. Pa. Feb. 15, 2011) ....................................................................................................................16 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .............................................................5 Moore v. City of Phila., 461 F.3d 331 (3d Cir. 2006) ....................................................................20 Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d 378 (3d Cir. 1999) ............................................20 Pettway v. City of Phila., No. 11-cv-78, 2011 U.S. Dist. LEXIS 80869 (E.D. Pa. July 22, 2011)...........................................................................................................................16 Phifer v. Sevenson Envtl. Servs., Inc., No. 11-cv-169, 2012 U.S. Dist. LEXIS 34375 (D. Del. Mar. 14, 2012)......................................................................................... 7-8, 21 Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d Cir. 1999) .......................................................8 Rodriguez v. Allegheny Cty., No. 14-cv-1690, 2015 U.S. Dist. LEXIS 43812 (W.D. Pa. Apr. 2, 2015) .....................................................................................................11, 23 Sample v. Keystone Mercy Health Plan, No. 12-cv-3188, 2012 U.S. Dist. LEXIS 158725 (E.D. Pa. Nov. 5, 2012) ...............................................................................................23 Santos v. Iron Mountain Film & Sound, No. 12-cv-04214, 2014 U.S. Dist. LEXIS 22359 (D.N.J. Feb. 20, 2014), aff’d, 2014 U.S. App. LEXIS 22433 (3d Cir., Nov. 25, 2014) .........................................................................................................................13 Sherrod v. Phila. Gas Works, No. 02-cv-2153, 57 F. App’x 68 (3d Cir. 2003) ............................14 Snyder v. Bazargani, Nos. 06-cv-2396, 05-cv-4051, No. 05-cv-3817, 241 F. App’x 20 (3d Cir. 2007)...........................................................................................................23 Spence v. LaHood, No. 11-cv-3972, 2013 U.S. Dist. LEXIS 11409 (D.N.J. Jan. 29, 2013) ..................................................................................................................................18 Storey v. Burns Int’l Sec. Servs., 390 F.3d 760 (3d Cir. 2004) ....................................................6, 8 Truong v. Dart Container Corp., No. 09-cv-3348, 2010 U.S. Dist. LEXIS 114286 (E.D. Pa. Oct. 26, 2010) ...........................................................................................................13 Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 6 of 31 vi DM2\7253965.6 Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) ............................................... 22-23 Wilkins v. Bozzuto & Assocs., Inc., No. 09-cv-2581, 2009 U.S. Dist. LEXIS 115776 (E.D. Pa. Dec. 10, 2009) ................................................................................... 5, 12-13 Winkler v. Progressive Bus. Publ’ns, No. 16-cv-938, 2016 U.S. Dist. LEXIS 102305 (E.D. Pa. Aug. 4, 2016) ...............................................................................................18 State Cases Hoy v. Angelone, 720 A.2d 745 (Pa. 1998) ...................................................................................23 Federal Statutes 42 U.S.C. § 1981 .................................................................................................................... Passim 42 U.S.C. § 2000e(b) .......................................................................................................................6 42 U.S.C. § 2000e(f) ........................................................................................................................6 State Statutes 43 P.S. §§ 951 et seq. .......................................................................................................................1 Rules Fed. R. Civ. P. 8(a) ..........................................................................................................................4 Fed. R. Civ. P. 12(b)(6).......................................................................................................... Passim Fed. R. Civ. P. 12(f) .......................................................................................................................23 Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 7 of 31 DM2\7253965.6 I. INTRODUCTION Plaintiff Isaac Morales (“Plaintiff”) is a former employee of AtWork Personnel Services (“AtWork”), a staffing agency that Defendant Reading Truck Body (“RTB” or “Defendant”) contracted with to provide certain staffing services to RTB. Plaintiff was assigned by AtWork to work at RTB’s Reading, Pennsylvania work location. Following AtWork’s termination of Plaintiff’s employment, Plaintiff filed a four-count Complaint in Pennsylvania state court alleging claims under the Pennsylvania Human Relations Act, 43 P.S. §§ 951 et seq. (“PHRA”) against AtWork and RTB challenging the basis of his termination. Plaintiff subsequently filed an Amended Complaint against only RTB, alleging three claims under Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“Section 1981”) and the PHRA for race discrimination, racially hostile work environment, and retaliation. Plaintiff’s claims all suffer from incurable legal defects. Plaintiff’s race discrimination claim (Count I) is predicated on the entirely conclusory allegation that his Hispanic race motivated the alleged termination of his assignment to provide services to RTB. Yet, Plaintiff avers no facts that give rise to any inference of unlawful discrimination by RTB, which never employed him, let alone any inference of discrimination based on his Hispanic race. In Count II of the Amended Complaint, Plaintiff alleges that he was subjected to a racially hostile work environment, yet he does not plead facts that support a finding that he was subjected to severe or pervasive harassment, or facts that plausibly would suggest he was detrimentally affected by the alleged harassment. Finally, Plaintiff’s claim that he was subjected to unlawful retaliation (Count III) also fails because he does not plead facts to support his unwarranted conclusions that RTB (as opposed to AtWork) took adverse action against him or that there was a causal connection between his protected activity and any such adverse action. Accordingly, Plaintiff’s conclusory pleading fails the test of facial plausibility required to survive a motion to dismiss. Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 8 of 31 2 DM2\7253965.6 See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Therefore, RTB moves to dismiss Plaintiff’s entire Amended Complaint, with prejudice, for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). II. RELEVANT FACTUAL BACKGROUND1 Plaintiff is an Hispanic male who resides in Berks County, Pennsylvania and was a citizen of Pennsylvania at all times relevant to his claims. Am. Compl. at ¶ 5. RTB is “a business with a registered office address at 201 Hancock Boulevard, Reading, PA 19611.” Id. ¶ 6. Plaintiff applied for employment at AtWork, which assigned him to provide services as a General Laborer and Welder at RTB on or about June 5, 2014. Id. ¶ 7. On August 29, 2014, Plaintiff offered a solution to an issue regarding scratches on trucks to Jardel Yohn (“Mr. Yohn”), Line Lead, a problem for which Plaintiff was blamed. Id. ¶ 8. Plaintiff’s supervisor, Earl Weidman2 (“Mr. Weidman”), instructed Plaintiff to “mind [his] own business and get back to work.” Id. Mr. Weidman followed Plaintiff and grabbed his shoulder. Id. ¶ 9. Mr. Weidman asked Plaintiff if he was getting an attitude with him, which Plaintiff denied. Id. Mr. Weidman said, “Listen you black mother fucker, don’t you ever turn your back on me and mind your God damn business, this isn’t the hood where you can jump back and forth.” Id. 1 For purposes of this Memorandum of Law, RTB accepts as true the allegations in the Amended Complaint, but no admission of fact is intended or should be inferred from RTB’s recitation of any allegation in the Amended Complaint for purposes of testing the legal sufficiency of Plaintiff’s claims. 2 Plaintiff incorrectly spells Mr. Weidman’s name in the Amended Complaint as “Wiedman.” Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 9 of 31 3 DM2\7253965.6 Plaintiff complained to Mr. Williams, who had Plaintiff give a statement about the incident and told Plaintiff that he would “take care of it.”3 Id. ¶ 10. Plaintiff also complained of race discrimination to Human Resources (“HR”) Manager, Darlene Conway4 (“Ms. Conway”), who assured Plaintiff that RTB would conduct an investigation. Id. On or about the evening of August 29, 2014, “Kacie” from AtWork left a message for Plaintiff on his mother’s phone stating that Plaintiff was not to return to work after the holiday weekend. Id. ¶ 11. Kacie provided no reason for her instruction. Id. On Tuesday, September 2, 2014, Plaintiff asked RTB’s HR Department why he had been terminated. Id. ¶ 12. Plaintiff was told to contact AtWork. Id. Plaintiff contacted AtWork and was instructed to leave RTB’s premises, pending an investigation. Id. ¶ 13. AtWork subsequently told Plaintiff that it “didn’t want to refer him to anywhere else and didn’t want him working at [AtWork] any longer.” Id. ¶ 14. On the same day, a “Mr. Andreas”5 called Plaintiff and said that he did not believe that Mr. Weidman did anything to Plaintiff. Id. ¶ 15. Mr. Andreas said that Plaintiff tried to fight Mr. Weidman. Id. Mr. Andreas also said, “you are just a temp anyway,” and “we no longer want an employer-employee relationship with you.” Id. When Plaintiff reapplied to AtWork “[a]bout two weeks later,” AtWork said it “couldn’t believe he had the audacity to come in here and place another application.” Id. ¶ 16. 3 The Amended Complaint does not allege a first name, title, or employer for Mr. Williams. See Am. Compl. ¶ 10. 4 The Amended Complaint does not allege an employer for Ms. Conway. See Am. Compl. ¶ 10. 5 The Amended Complaint does not allege a first name, title, or employer for Mr. Andreas. See Am. Compl. ¶ 15. Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 10 of 31 4 DM2\7253965.6 III. PROCEDURAL HISTORY On June 13, 2016, Plaintiff filed a Complaint in the Court of Common Pleas of Berks County under docket number 16-13605, asserting three claims against RTB and one claim against AtWork for alleged violations of the PHRA. On October 17, 2016, Plaintiff filed an Amended Complaint in the Court of Common Pleas of Berks County (“Amended Complaint”). The Amended Complaint asserts claims only against RTB, for race discrimination, racially hostile work environment and retaliation in violation of Section 1981 and the PHRA. See Am. Compl. at ¶ 1. Plaintiff alleges that he is an Hispanic male. Id. at ¶ 18. RTB filed a timely Notice of Removal of the Amended Complaint on November 8, 2016. See ECF No. 1. IV. STANDARD OF REVIEW Federal Rule of Civil Procedure 8(a) provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A motion to dismiss under Rule 12(b)(6) must be granted if a complaint fails to allege “enough facts to state a claim to relief that is plausible on its face.” Fed R. Civ. P. 12(b)(6); see Twombly, 550 U.S. at 570 (interpreting Rule 8(a) to require that the facts in a complaint plausibly suggest that the pleader is entitled to relief). Facial plausibility requires allegations showing “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Facial plausibility also requires more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. at 663 (citing Twombly, 550 U.S. at 555). While a court must accept all of the well-pleaded facts of a complaint as true when reviewing a Rule 12(b)(6) motion to dismiss, the court “need not accept as true ‘unsupported conclusions and unwarranted inferences.’” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 11 of 31 5 DM2\7253965.6 F.3d 173, 184 (3d Cir. 2000) (internal citation omitted); see also Twombly, 550 U.S. at 555 (a “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); Wilkins v. Bozzuto & Assocs., Inc., No. 09-cv-2581, 2009 U.S. Dist. LEXIS 115776, at *4 (E.D. Pa. Dec. 10, 2009). To survive a motion to dismiss, a plaintiff’s complaint must “nudge[] [his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. V. ARGUMENT For the reasons set forth below, each of Plaintiff’s claims is fatally flawed because he fails to allege sufficient facts to nudge his claims across the critical boundary between conceivability and plausibility. See id. A. Count I of the Amended Complaint Should Be Dismissed Because Plaintiff Fails to State a Claim of Race Discrimination as a Matter of Law. To state a prima facie claim of race discrimination under Section 1981 and the PHRA, Plaintiff must plead that: (1) he is a member of a protected class, (2) he is qualified for the position he held, (3) he suffered an adverse employment action, and (4) similarly-situated non- members of the protected class were treated more favorably or the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) (stating standard for prima facie claim of discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).6 6 The same standard applies in assessing the legal sufficiency of Plaintiff’s claims of race discrimination under Section 1981 and the PHRA. See Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009) (Section 1981 claims are analyzed in the same way as Title VII claims); Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (claims under the PHRA are interpreted coextensively with Title VII claims). Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 12 of 31 6 DM2\7253965.6 Plaintiff’s claims of race discrimination under Section 1981 and the PHRA should be dismissed because his threadbare, conclusory allegations of race discrimination do not plead facts sufficient to establish a prima facie claim of race discrimination. 1. Plaintiff Pleads No Facts to Show That RTB Was His Employer or Committed An Adverse Action Against Him. First, Plaintiff’s claims fail because he alleges no facts plausibly to suggest that RTB was his employer or committed any adverse employment action against him, as he must do to satisfy the third element of his prima facie case. An adverse employment action is “an action by an employer that is ‘serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.’”7 Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)) (emphasis added). Generally, a “hiring, firing, failure to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” qualifies an adverse employment action. Greer v. Mondelez Global, Inc., No. 12-cv-3820, 590 F. App’x 170, 173 (3d Cir. 2014) (internal citation omitted). It is axiomatic that in order to state a claim for violation of federal or state anti- discrimination laws, a plaintiff must allege that the defendant was his or her employer. In the context of Section 1981 claims, the court in Badger v. Stryden, Inc., No. 09-cv-3619, 2016 U.S. Dist. LEXIS 69012, at *9-13 (E.D. Pa. May 26, 2016) dismissed under Rule 12(b)(6) the 7 Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . .” 42 U.S.C. § 2000e(b). An “employee” includes “an individual employed by an employer.” Id. § 2000e(f). Section 1981 does not have any definition of “employer” or employee.” See 42 U.S.C. § 1981. The PHRA defines “employer” to include “any person employing four or more persons within the Commonwealth.” See 43 P.S. § 954(b). The PHRA defines “person” to include “individuals, associations, organizations, [and] corporations[.]” 43 P.S. § 954(a). Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 13 of 31 7 DM2\7253965.6 plaintiffs’ Section 1981 claim of race discrimination for failure to allege that the defendant employed the plaintiffs. The plaintiffs alleged that the individuals responsible for the alleged discriminatory actions were employed by a third party and alleged in conclusory fashion that the defendant and the third party jointly employed those individuals. Id. at *9, 13. The court explained that plaintiffs’ “naked assertion that [the defendant] acted as Plaintiffs’ employer or joint employer without any factual enhancement is plainly insufficient” and court not survive a motion to dismiss. Id. at *13.8 Although Plaintiff alleges that he “was terminated without warning or reason” (Am. Compl. ¶ 22.), conspicuously absent from his Amended Complaint is any allegation that RTB terminated his employment. Instead, Plaintiff pleads that AtWork decided, independent of RTB, to terminate his employment. He alleges that a “Kacie from AtWork” instructed him not to return to “work.” Id. ¶ 11. Plaintiff also alleges that when he asked RTB “why he had been terminated,” RTB told him to contact AtWork and that an unnamed employee of AtWork then told him that AtWork did not want him “working at AtWork Personnel any longer.” Id. ¶¶ 12, 14. When Plaintiff reapplied at AtWork weeks later, another unnamed employee of AtWork told him that they could not believe he had the audacity to reapply. Id. ¶ 16. Nowhere does Plaintiff allege that RTB instructed AtWork to terminate his employment or his placement at RTB. Plaintiff also fails to allege facts sufficient to establish that RTB was his employer. Indeed, Plaintiff alleges only that RTB “is a statutory employer” (id. ¶¶ 20, 29.), 8 The court’s holding in Badger is consistent with Title VII case law in the Third Circuit. See, e.g., Phifer v. Sevenson Envtl. Servs., Inc., No. 11-cv-169, 2012 U.S. Dist. LEXIS 34375, at *13 (D. Del. Mar. 14, 2012) (plaintiff’s failure to present facts sufficient to allege that defendant was his employer resulted in dismissal of Title VII claim under Rule 12(b)(6)); Liles v. Revetaw, Inc., No. 2003-cv-88, 2009 U.S. Dist. LEXIS 17631, at *7 (D.V.I. Mar. 6, 2009) (plaintiff’s failure to allege any facts to support the inference that she ever had an employment relationship with defendant did not state a claim for relief under Title VII) (citing Equal Employment Opportunity Comm’n v. Shell Oil Co., 466 U.S. 54, 77 (1984) (“Title VII only addresses acts by the ‘employer.’”)). Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 14 of 31 8 DM2\7253965.6 and does not allege, in even conclusory fashion, an employment relationship between Plaintiff and RTB. Plaintiff’s contention that “Mr. Andreas” said “we no longer want an employer- employee relationship with you” is hardly sufficient to establish that RTB was his employer, as Plaintiff does not even identify Mr. Andreas, much less allege that he is associated with RTB or the nature of any such alleged association. Id. ¶ 15. Even assuming that “Mr. Andreas” made the statement attributed to him and that Mr. Andreas was an RTB employee, such a statement is insufficient to establish that RTB employed Plaintiff. Plaintiff’s failure to allege any adverse action by RTB or that RTB was his employer sinks his race discrimination claim. See Storey, 390 F.3d at 764; Phifer, 2012 U.S. Dist. LEXIS 34375, at *13; Liles, 2009 U.S. Dist. LEXIS 17631, at *7. 2. Plaintiff Fails to Plead Facts Sufficient to Show That He Suffered an Adverse Action Under Circumstances Supporting An Inference of Discrimination. To establish the fourth element of his prima facie case,9 Plaintiff must offer “evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion.” See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999). In the Amended Complaint, Plaintiff alleges, in conclusory fashion, that he suffered unlawful discrimination because: (1) he was subjected to battery, racially derogatory remarks and differential treatment, and (2) he was terminated almost immediately after reporting discrimination against his supervisor. See Am. Compl. ¶ 23. These allegations are insufficient 9 Another way to meet the fourth element of a prima facie claim of race discrimination is to allege that a similarly situated employee was treated differently. Plaintiff does not even attempt to do so. Plaintiff does not reference any differential treatment of similarly-situated employees. See Am. Compl. Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 15 of 31 9 DM2\7253965.6 to establish that AtWork’s termination of his employment was based on race discrimination by RTB. a. Plaintiff Pleads Insufficient Facts to Show that He Was Subjected to Battery, Racially Derogatory Remarks, or Differential Treatment to Support an Inference of Discrimination Against Plaintiff Based on His Race. Plaintiff hardly avers sufficient facts to show that he was “subjected to battery,” where his sole allegation of physical contact is that Mr. Weidman “grabbed his shoulder.” Id. ¶ 9. Likewise, Plaintiff fails to plead sufficient facts to suggest that he was the victim of “racially derogatory remarks” where the single race-related remark he alleges in his Amended Complaint was directed at “black” individuals (id.), whereas Plaintiff is Hispanic. Id. ¶ 5. Plaintiff contends that Mr. Weidman said, “Listen you black mother fucker, don’t you ever turn your back on me and mind your God damn business, this isn’t the hood where you can jump back and forth.” Id. ¶ 9 (emphasis added). Without more, the allegation that an employee of RTB grabbed Plaintiff’s shoulder and made one verbal reference to a race that is different than Plaintiff’s Hispanic race is insufficient as a matter of law to establish that AtWork’s termination of Plaintiff’s employment occurred under circumstances giving rise to an inference of unlawful discrimination by RTB against Plaintiff based on his Hispanic race. b. Plaintiff Makes No Allegation That His Position Was Filled By Someone Outside of His Protected Class. Also notably absent from Plaintiff’s Amended Complaint is any allegation that his position was filled by a person outside of his protected class. See Am. Compl. Claims of discrimination are dismissed routinely when the plaintiff fails to allege facts to show that a non-member of the plaintiff’s protected class replaced the plaintiff or otherwise received an opportunity that was allegedly denied to the plaintiff. See, e.g., Golod v. Bank of Am., No. 09-cv-2907, 403 F. App’x 699, 702 (3d Cir. Dec. 13, 2010) (affirming district court’s Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 16 of 31 10 DM2\7253965.6 dismissal under Rule 12(b)(6) of plaintiff’s claims of sex, race and national origin discrimination under Title VII and Section 1981, where plaintiff proffered no facts as to the sexes, races or national origins of those who received promotions over plaintiff). For example, in Henry v. City of Allentown, No. 12-cv-1380, 2013 U.S. Dist. LEXIS 2399, at *5 (E.D. Pa. Jan. 7, 2013), the court granted the defendant’s motion to dismiss the plaintiff’s claim of race discrimination under Section 1981, where the plaintiff, an Hispanic male, alleged that he was “replaced by an officer who did not have the same credentials as [he] possessed,” but failed to allege that the replacement officer was non-Hispanic. The court explained that, although the plaintiff is not required to show that he was replaced by a non- Hispanic officer to state a prima facie claim, the absence of this allegation, plus the absence of any other facts to establish a causal connection between his Hispanic race and the adverse employment action, is fatal to the claim. Id. Similarly, in Bartlett v. Kutztown Univ., No. 13-cv-4331, 2015 U.S. Dist. LEXIS 21665, at *28 (E.D. Pa. Feb. 23, 2015), the court dismissed, under Rule 12(b)(6), the plaintiff’s claims of gender discrimination alleging violations of Title VII and the PHRA because the plaintiff failed to allege the genders of her replacements. See also Andras v. Borough of Laceyville, No. 14-cv-2094, 2015 U.S. Dist. LEXIS 96290, at *13 (M.D. Pa. July 23, 2015) (dismissing, under Rule 12(b)(6), a claim of discrimination under the Age Discrimination in Employment Act (ADEA) because plaintiff failed to allege the age of his replacement and thus alleged no facts to show that he was replaced by someone sufficiently younger to permit an inference of age discrimination). Plaintiff’s failure even to allege that he was replaced, let alone that he was replaced by a non-Hispanic individual, provides no plausible basis to infer discrimination by RTB. Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 17 of 31 11 DM2\7253965.6 c. Plaintiff Pleads Insufficient Facts to Show that the Timing of His Alleged Termination Suggests Discrimination by RTB. Plaintiff also fails to allege sufficient facts to show that his “immediate[]” termination “after reporting suspected discrimination against his supervisor” supports an inference of unlawful discrimination by RTB. Id. ¶ 23. Plaintiff proffers no facts plausibly to suggest that Mr. Weidman, who made the alleged racial remark, or Mr. Yohn, to whom Plaintiff allegedly was speaking when the incident occurred, was involved in AtWork’s termination of his placement at RTB. Id. ¶¶ 10-16. Plaintiff also alleges no facts to suggest that AtWork knew about his alleged complaint about the August 29, 2014 incident at the time of his termination, except for his bare allegation that he was “instructed to leave the premises of Reading Truck Body, pending an investigation.” Id. ¶ 13. Among other things, Plaintiff does not even allege that Mr. Williams or Ms. Conway, to whom he allegedly complained, had any communications with AtWork. See id. ¶¶ 10-16. As to Mr. Andreas, who Plaintiff alleges said that he “did not believe that Mr. Weidman did anything to him,” Plaintiff does not allege that Mr. Andreas had any connection to AtWork or its decision to terminate his placement at RTB. Id. ¶ 15. If anything, Plaintiff’s allegations regarding Mr. Andreas suggest that Plaintiff’s placement at RTB ended due to Plaintiff’s alleged attempt to “fight Mr. Weidman.” Id.; see Rodriguez v. Allegheny Cty., No. 14-cv-1690, 2015 U.S. Dist. LEXIS 43812, at *10-11 (W.D. Pa. Apr. 2, 2015) (dismissing under Rule 12(b)(6) claims of discrimination alleging violations of Title VII and the PHRA, where plaintiff averred that she was terminated shortly after being criticized for her handling of an assignment, but alleged no facts to support an inference that gender or race discrimination motivated her termination). None of these sparse facts alleged by Plaintiff are sufficient to raise an inference of race discrimination. Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 18 of 31 12 DM2\7253965.6 d. Plaintiff’s Subjective Belief That He Was the Victim of Racial Animus is Insufficient to State a Plausible Claim of Discrimination. The Amended Complaint reflects nothing more than Plaintiff’s subjective and baseless belief that racial animus motivated AtWork to terminate his placement at RTB. Claims that rest on mere subjective beliefs of an unlawful discriminatory motive cannot survive a motion to dismiss. See, e.g., Groeber v. Friedman and Schuman, P.C., No. 13-cv-2497, 555 F. App’x. 133, 135 (3d Cir. 2014) (affirming Rule 12(b)(6) dismissal plaintiff’s claims of race discrimination and retaliation in violation of Title VII because plaintiff’s “subjective belief that race played a role in these employment decisions . . . is not sufficient to establish an inference of discrimination”); Foster v. Wells Fargo Bank, No. 12-cv-6503, 2013 U.S. Dist. LEXIS 150707, at *8 (E.D. Pa. Oct. 18, 2013) (dismissing under Rule 12(b)(6) the plaintiff’s claim of race discrimination alleging violations of Title VII and the PHRA because “plaintiff’s subjective belief that race played a role in an employment decision is insufficient to establish an inference of discrimination”). Wilkins v. Bozzuto & Assocs., Inc., No. 09-cv-2581, 2009 U.S. Dist. LEXIS 115776 (E.D. Pa. Dec. 10, 2009) illustrates the fatal deficiencies of Plaintiff’s claims. In Wilkins, the plaintiff alleged claims of race discrimination under Title VII, Section 1981, and the PHRA, based on his white supervisor’s decision to terminate his employment and hire someone outside of his protected class. The court held that the plaintiff’s conclusory allegations that his firing was related to his race, “based upon the race of his supervisor, his lack of knowledge of complaints filed regarding his work . . . and the unverified race of [his replacement]” failed to set Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 19 of 31 13 DM2\7253965.6 forth plausible allegations of racial animus as a matter of law. Id. at *7-10.10 Accordingly, the court granted the defendant’s Rule 12(b)(6) motion to dismiss the plaintiff’s complaint. As in Wilkins, based on the glaring absence of facts in the Amended Complaint to show that unlawful discrimination by RTB is plausible, Plaintiff’s claims of race discrimination should be dismissed. See Twombly, 550 U.S. at 570; Fowler, 578 F.3d at 210-11. B. Count II of the Amended Complaint Should Be Dismissed Because Plaintiff Cannot State a Claim of Hostile Work Environment as a Matter of Law. Plaintiff’s racially hostile work environment claims under Section 1981 and the PHRA also fail as a matter of law. To state a prima facie claim of a racially hostile work environment under Section 1981 and the PHRA, Plaintiff must allege that: (1) he suffered intentional discrimination because of his Hispanic race; (2) the harassment was severe or pervasive and regular; (3) the harassment detrimentally affected him; (4) the harassment would detrimentally affect a reasonable person of the same Hispanic race; and (5) the existence of respondeat superior liability.11 He fails to do so here. 10 See also Hassell v. Johnson & Johnson, No. 13-cv-4109, 2014 U.S. Dist. LEXIS 60503, at *13-14 (D.N.J. May 1, 2014) (dismissing under Rule 12(b)(6) plaintiff’s Section 1981 claim of discrimination, where plaintiff failed to plead the race of or other facts relating to the individuals who were promoted over him); Santos v. Iron Mountain Film & Sound, No. 12-cv-04214, 2014 U.S. Dist. LEXIS 22359, at *12-13 (D.N.J. Feb. 20, 2014) (dismissing under Rule 12(b)(6) plaintiff’s Title VII discrimination claims based on national origin or ethnicity for failure to allege that others outside of his protected class filled his position or were treated more favorably, because without such facts “the Court cannot draw the reasonable inference that plaintiff was discriminated against due to his protected status”), aff’d, 2014 U.S. App. LEXIS 22433 (3d Cir., Nov. 25, 2014); Doe v. Sizewize Rentals, LLC, No. 09-cv-3409, 2010 U.S. Dist. LEXIS 124623, at *17-18 (D.N.J. Nov. 22, 2010) (dismissing Section 1981 claims under Rule 12(b)(6), where “Plaintiffs’ allegations concerning their respective terminations are made solely through conclusory statements and speculation of discrimination”); Truong v. Dart Container Corp., No. 09-cv- 3348, 2010 U.S. Dist. LEXIS 114286, at *9-11 (E.D. Pa. Oct. 26, 2010) (dismissing under Rule 12(b)(6) claims of discrimination under Title VII, Section 1981, and the PHRA based on plaintiffs’ failure to plead any facts suggesting that their terminations had anything to do with their races or national origins). 11 The same standard applies in assessing hostile work environment claims under Title VII, Section 1981, and the PHRA. See Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104, 105 n. 2 (3d Cir. Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 20 of 31 14 DM2\7253965.6 1. Plaintiff Fails to Plead Facts Sufficient to Show That He Was Harassed Because of His Hispanic Race. Plaintiff’s factual averments in support of a hostile work environment claim must make it plausible that he was subjected to severe or pervasive hostility “because of” his protected status. Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007). As noted above, however, Plaintiff’s only factual allegation of racial bias is that Mr. Weidman said, “Listen you black mother fucker . . .” See Am. Compl. ¶¶ 9, 23 (emphasis added). Plaintiff, an Hispanic male, fails to allege any facts plausibly to connect this single alleged racially-charged statement to AtWork’s termination of his placement at RTB. See id. ¶¶ 11-16. In Culler v. Sec’y of United States Veterans Affairs, No. 12-cv-1574, 507 F. App’x 246, 249-50 (3d Cir. 2012), the court affirmed the dismissal under Twombly of the plaintiff’s hostile work environment claim alleging violation of the ADEA, where the plaintiff alleged no facts to support an inference that his supervisor ridiculed him based on his age. The plaintiff alleged only that his supervisor engaged in “unlawful age-related discussions,” where plaintiff did not specify the content of the discussions or link them to other events. Id. In Doe, the court dismissed under Rule 12(b)(6) the plaintiffs’ claims of hostile work environment in violation of Section 1981, where the plaintiffs alleged that the defendant made threats and gave a “harsh speech” with multiple expletives, but failed to allege that the defendant directed such conduct at them, and made only conclusory allegations that the alleged conduct targeted racial minorities. 2010 U.S. Dist. LEXIS 124623, at *4, 18-21 (citing Caver v. City of Trenton, 420 F.3d 243, 263 (3d Cir. 2005) (holding that a plaintiff cannot establish a hostile 2009) (construing the PHRA and Title VII interchangeably in evaluating the legal sufficiency of a hostile work environment claim); Sherrod v. Phila. Gas Works, No. 02-cv-2153, 57 F. App’x 68, 75 (3d Cir. 2003) (the hostile work environment “analysis is the same whether under Title VII, Section 1981 or the PHRA.”). Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 21 of 31 15 DM2\7253965.6 work environment claim “solely by pointing to comments that were directed at other individuals”)). Here, Plaintiff’s allegation of a single comment that was not even related to his protected class similarly is insufficient to support a hostile work environment claim as a matter of law. See Culler, 507 F. App’x at 249-50; Doe, 2010 U.S. Dist. LEXIS 124623, at *19-2; see also Fowler, 578 F.3d at 210-11. 2. Plaintiff Fails to Plead Facts Establishing that the Alleged Harassment Was Severe or Pervasive. As to the second element of his hostile work environment claim, to survive a motion to dismiss, Plaintiff must aver sufficient facts to “show that [his] workplace was ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.’” Culler, 507 F. App’x at 249 (internal citation omitted). Plaintiff has failed to do so here. To determine whether harassment is sufficiently severe or pervasive, courts consider “‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Jensen v. Potter, 435 F.3d 444, 451 (3d Cir. 2006) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). “Occasional insults, teasing, or episodic instances of ridicule are not enough; they do not ‘permeate’ the workplace and change the very nature of the plaintiff’s employment.” Id. at 451 (internal citations omitted). a. Plaintiff Has Not Allege Any Facts to Show “Pervasive” Harassment. To be “pervasive,” the incidents “‘must be more than episodic; they must be sufficiently continuous and concerted.’” Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 (1998) (internal quotation omitted); see Culler, 507 F. App’x at 249 (affirming dismissal of hostile work Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 22 of 31 16 DM2\7253965.6 environment claim, where the alleged incidents of workplace conflict were not pervasive). A single incident of alleged harassment based on the plaintiff’s protected class is not sufficient to establish “pervasive” harassment, unless it is extremely serious. In a case directly on point, Castleberry v. STI Grp., No. 15-cv-00153, 2016 U.S. Dist. LEXIS 80831 (M.D. Pa. June 22, 2016), the plaintiffs, who are African American, brought a hostile work environment claim under Section 1981 against the staffing agency that employed them and the company at which the staffing agency placed them to work. The court dismissed their claims under Rule 12(b)(6) based on their failure to aver sufficient facts showing “pervasive” harassment. Id. at *14-16. The plaintiffs alleged that as they were removing a fence, the Head of Safety of the company where they were placed told them that they “nigger- rigged” the fence. Id. at *8. The court explained that “the single use of a racial epithet cannot by itself give rise to a plausible harassment claim under Section 1981.” Id. at *16. Moreover, even taking that racial epithet in combination with the plaintiffs’ allegation that “don’t be black on the right of way” was written on a sign-in sheet, the court held that the plaintiffs did not allege enough facts to establish a pervasive harassing work environment. Id.12 12 See also LeBlanc v. The Hill Sch., No. 14-cv-1674, 2015 U.S. Dist. LEXIS 2981, at *56-57 (E.D. Pa. Jan. 12, 2015) (single, isolated incident that plaintiff was told she was “in the way” of younger teachers insufficient to establish plausible claim of hostile work environment); Hasan v. Threshold Rehab., No. 13-cv-00387, 2014 U.S. Dist. LEXIS 40423, at *20-21 (E.D. Pa. Mar. 24, 2014) (dismissing plaintiff’s claim of hostile work environment for failure to state a claim because it focused on a single event of disparate treatment stemming from defendant’s refusal to allow plaintiff to take leave for religious reasons); cf., Little v. Chambersburg Hosp., No. 11-cv-01804, 2012 U.S. Dist. LEXIS 42589, at *11 (M.D. Pa. Mar. 28, 2012) (plaintiff failed to allege sufficient facts to show “pervasive” or “severe” harassment in violation of Title VII to survive a motion to dismiss, where plaintiff alleged only four incidents over a four-month or five-month period); McClendon v. Dougherty, No. 10-cv-1339, 2011 U.S. Dist. LEXIS 15381, at *24-25 (W.D. Pa. Feb. 15, 2011) (dismissing under Rule 12(b)(6) claims of race- based hostile work environment in violation of Section 1981, Title VII, and the PHRA, where the three alleged discriminatory events, including being called a “token,” were not “pervasive” or “severe” harassment); Pettway v. City of Phila., No. 11-cv-78, 2011 U.S. Dist. LEXIS 80869, at *9-10 (E.D. Pa. July 22, 2011) (Mag. J.) (allegations of three isolated incidents in one year did not show “pervasive” harassment sufficient to survive a motion to dismiss the plaintiff’s hostile work environment claim). Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 23 of 31 17 DM2\7253965.6 Plaintiff’s claims of hostile work environment are not “pervasive” because they rest on a single incident of alleged harassment. See Faragher, 524 U.S. at 787 n.1 (to be “pervasive,” the incidents “‘they must be sufficiently continuous and concerted.’”) (internal citation omitted). The sum total of Plaintiff’s allegations in support of his hostile work environment claims are that Mr. Weidman, in an isolated interaction, called him a “black mother fucker,” told him, “this isn’t the hood where you can jump back and forth,” “grabbed his shoulder,” and told him to “mind his God damn business.” See Am. Compl. ¶ 30. As in Castleberry, Plaintiff alleges a single racially charged comment in support of his hostile work environment claims. Id. Unlike in Castleberry, the single racial comment that Plaintiff alleges (“black mother fucker”) is not even directed at Plaintiff’s Hispanic race and the content of the comment is far less egregious than the “nigger- rigged” comment that the African American plaintiffs alleged in Castleberry. 2016 U.S. Dist. LEXIS 80831, at *8, 16. Without more, Plaintiff’s allegations cannot survive a motion to dismiss. See id. b. Plaintiff Has Not Alleged Any Facts to Show “Severe” Harassment. Because Plaintiff fails to allege any facts to show “pervasive” harassment, Plaintiff must allege facts sufficient to show he suffered “severe” harassment to withstand a motion to dismiss. Absent factual allegations of “severe” harassment, Plaintiff’s hostile work environment claim does not state a plausible basis for relief. Notwithstanding Plaintiff’s hyperbolic characterization of allegedly being “grabbed” on the shoulder as “battery,” such conduct, even if true, does not rise to the level of unlawful harassment under Section 1981 or the PHRA as a matter of law. See, e.g., De La Pena v. Metro. Life Ins. Co., 953 F. Supp. 2d 393, 417 (E.D.N.Y. 2013) (dismissing at the pleading stage plaintiff’s hostile work environment claim under Section 1981 and Title VII where plaintiff’s Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 24 of 31 18 DM2\7253965.6 allegation of a single incident of physical contact involving being touched on the shoulder and pushed into a desk, where plaintiff did not allege that such contact caused injury or required medical attention, was not “severe”), aff’d, 552 F. App’x 93 (2d Cir. Jan. 29, 2014). Even assuming that Mr. Weidman called Plaintiff, who is Hispanic, a “black mother fucker,” and made other comments unrelated to race, such conduct does not qualify as “severe” for purposes of a hostile work environment claim.13 See Faragher, 524 U.S. at 788 (cautioning that “isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment” for purposes of a hostile work environment claim). Plaintiff fails even to allege that the single incident of physical contact (“grabbed his shoulder”) caused him any injury or required any medical attention. See De La Pena, 953 F. Supp. 2d at 417. Thus, Plaintiff’s allegation of isolated conduct by Mr. Weidman fails plausibly to allege severe hostility based on his Hispanic race. See Culler, 507 F. App’x at 249; Spence v. LaHood, No. 11-cv-3972, 2013 U.S. Dist. LEXIS 11409, at *12-14 (D.N.J. Jan. 29, 2013). 3. Plaintiff Fails to Plead Facts Establishing That He Was Detrimentally Affected by the Alleged Harassment. Plaintiff also fails to allege any facts to show that he was detrimentally affected by the alleged harassment, a required element of his prima facie case.14 Plaintiff only alleges in 13 Of course, in some circumstances, a single incident may be sufficiently “severe” for the plaintiff’s claim of hostile work environment to survive a motion to dismiss. See Winkler v. Progressive Bus. Publ’ns, No. 16-cv-938, 2016 U.S. Dist. LEXIS 102305, at *10 (E.D. Pa. Aug. 4, 2016) (plaintiff’s allegations of a sexually hostile work environment survived a motion to dismiss, where plaintiff alleged that her male co-worker placed his hand inside her bra while telling her she should have to dance for the dollar bills he placed in her bra, because “this is the type of physically threatening and humiliating conduct that, even though it occurs only once, pleads a plausible hostile work environment claim”). Unlike the plaintiff in Winkler, Plaintiff pleads no facts relating to the single incident with Mr. Weidman that rise to the level of severity necessary to state a plausible claim of a racially hostile work environment based. 14 Plaintiff’s claims also are fatally flawed for failure to allege facts to support the conclusion that RTB’s alleged conduct would affect a reasonable person of the same (Hispanic) race. See Am. Compl. ¶ 32. Plaintiff alleges only that “a reasonable person” would suffer similar detriment. Id. Thus, his hostile Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 25 of 31 19 DM2\7253965.6 conclusory fashion that he “was detrimentally affected by Defendant’s comments and actions.” Am. Compl. ¶ 32. This allegation is nothing more than a recitation of a requisite element of his claim. Plaintiff’s formulaic recitation of this third element of his hostile work environment claim does not state a plausible claim for relief. See Twombly, 550 U.S. at 555 (a “plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”); Barthold v. Briarleaf Nursing & Convalescent Ctr. Nursing Home, No. 13-cv-2463, 2014 U.S. Dist. LEXIS 87602, at *15 (E.D. Pa. June 27, 2014) (plaintiff did not state a claim of hostile work environment where she failed to allege any facts to show that her work performance suffered as a result of being disciplined by the defendants); Bellamy v. Waterfront Square Condos., No. 12-cv-6618, 2013 U.S. Dist. LEXIS 21926, at *16 (E.D. Pa. Feb. 19, 2013) (dismissing, under Rule 12(b)(6), claim of hostile work environment because plaintiff failed to allege, among other elements of the claim, any specific facts about how defendant’s alleged conduct unreasonably interfered with plaintiff’s work performance). C. Count III of the Amended Complaint Should Be Dismissed Because Plaintiff Cannot State a Claim of Retaliation as a Matter of Law. Plaintiff’s claims of retaliation against RTB also fail, because Plaintiff does not allege facts sufficient to raise a plausible inference that RTB took any action against him because he engaged in any protected activity. To state a prima facie claim of retaliation under Section 1981 and the PHRA, Plaintiff must allege that: (1) he engaged in conduct that was protected under the relevant statutory work environment claims fail to provide a plausible basis for relief. See Braddock v. SEPTA, No. 13-cv- 06171, 2014 U.S. Dist. LEXIS 165235, at *12 (E.D. Pa. Nov. 25, 2014) (dismissing under Rule 12(b)(6) hostile work environment claim based on failure to allege, among other things, how the alleged discrimination “would affect a reasonable person of the same race in a like position”). Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 26 of 31 20 DM2\7253965.6 provision; (2) RTB took a materially adverse action against him; and (3) there was a causal relationship between his protected conduct and the materially adverse action. See Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (stating elements of prima facie claim under Title VII).15 1. Plaintiff Pleads No Facts to Show That RTB Was His Employer Or Committed An Adverse Action Against Him. As a threshold matter, Plaintiff’s retaliation claims fail because he has not alleged that RTB committed any adverse employment action. To establish the “adverse action” element of a retaliation claim, a plaintiff must show that “a reasonable employee would have found the challenged action to be materially adverse,” which means that it might have “‘dissuaded a reasonable worker from making or supporting a charge of discrimination’” or complaining to the EEOC, the courts, or his or her employer. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal citation omitted). For the reasons described above regarding the pleading deficiencies of Plaintiff’s claims of race discrimination, Plaintiff has alleged no facts to show that RTB committed any adverse action against him.16 See supra Section V.A.1. Plaintiff only has alleged facts plausibly to suggest that AtWork took an adverse action against him. See Am. Compl. ¶¶ 11-14, 16. 15 The same standard applies in analyzing Plaintiff’s retaliation claims under Section 1981 and the PHRA. See Blakney v. City of Phila., No. 13-cv-3062, 559 F. App’x 183, 185 (3d Cir. 2014) (“Because the analysis for adjudicating a retaliation claim under the PHRA is identical to a Title VII inquiry, we need not address [plaintiff's] PHRA claim separately”); Allen v. Nutrisystem, Inc., No. 13-cv-2505, 546 F. App’x 98, 100 (3d Cir. 2013) (analyzing Section 1981 and Title VII retaliation claims under the same standard); Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d 378, 385 (3d Cir. 1999) (same). 16 To the extent Plaintiff alleges that RTB failed to investigate his complaint, such alleged inaction is not enough to meet the “adverse action” element of a retaliation claim. See LeBlanc, 2015 U.S. Dist. LEXIS 2981, at *43 (“[A]n employer’s failure to investigate a complaint of discrimination cannot be considered an adverse employment action taken in retaliation for the filing of the same discrimination complaint.”) (internal citations omitted). Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 27 of 31 21 DM2\7253965.6 Where a plaintiff fails to allege that he or she was an employee of the defendant, or that the defendant had authority to terminate the plaintiff’s employment, the plaintiff’s claim of retaliation against the defendant cannot survive a motion to dismiss. For example, in Cauler v. Lehigh Valley Hosp., Inc., No. 15-cv-01082, 2015 U.S. Dist. LEXIS 63462, at *15-19 (E.D. Pa. May 14, 2015), the plaintiff alleged that she was employed by a staffing agency, which placed her at a company that “encouraged” and “demanded” the staffing agency to terminate her employment. The court reasoned that plaintiff’s allegations made clear that only the staffing agency, which “assigned her,” dictated the terms of her employment. Id. at *16. The court concluded that the company to which the staffing agency assigned plaintiff could not be plaintiff’s “employer” for purposes of her retaliation claim. Id. at *17. The court dismissed the plaintiff’s claim of retaliation under Rule 12(b)(6). Here, Plaintiff’s allegations regarding RTB’s conduct are far weaker than the plaintiff’s allegations regarding the company in Cauler. By way of example only, Plaintiff makes no allegation that RTB had any involvement in AtWork’s decision to terminate his employment, much less that RTB encouraged or demanded AtWork to do so. See Cauler, 2015 U.S. Dist. LEXIS 63462, at *15-16. Plaintiff also makes no allegation that RTB ever employed him. See also Phifer, 2012 U.S. Dist. LEXIS 34375, at *13 (no plausible claim under Title VII exists where plaintiff fails to plead that defendant employed plaintiff); Liles, 2009 U.S. Dist. LEXIS 17631, at *7 (same). Accordingly, Plaintiff has not pled facts sufficient to establish that RTB subjected him to an adverse action. 2. Plaintiff Fails to Plead Facts Sufficient to Show Any Causal Relationship Between His Protected Conduct and the Adverse Action. Conspicuously absent from Plaintiff’s Amended Complaint are allegations sufficient to establish a causal link between his alleged protected activity (his complaints to Mr. Williams and Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 28 of 31 22 DM2\7253965.6 Ms. Conway) and the alleged adverse employment action he suffered (AtWork’s termination of his placement at RTB). See Am. Compl. ¶¶ 35-38. To state a causal link between materially adverse employment action and Plaintiff’s alleged protected activity, Plaintiff must allege “either (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action, or (2) a pattern of antagonism with timing . . . .” Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). In Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013), the Supreme Court held that a “but-for” standard of causation applies to Title VII retaliation claims. In other words, to prevail on a claim of retaliation under Title VII, a plaintiff must show that “the desire to retaliate was the but-for cause of the challenged employment action.” Id. at 2528. At least one district court in the Third Circuit has applied the but-for standard of causation in Nassar to a retaliation claim under Section 1981. See Carvalho-Grevious v. Delaware State Univ., No. 13- cv-1386, 2015 U.S. Dist. LEXIS 132381, at *11-17 (D. Del. Sept. 30, 2015) (dismissing, upon a motion for summary judgment, plaintiff’s retaliation claims alleging violations of Title VII and Section 1981 for failure to establish a prima facie case of retaliation, explaining that the same burden-shifting framework applies to both claims and concluding that plaintiff failed to meet the but-for causation standard under Nassar). Here, Plaintiff’s entire basis for causation in support of his retaliation claims is his allegation that, “Immediately after making complaints, [Plaintiff] was terminated.” See Am. Compl. ¶ 38. Plaintiff’s bare assertion, without any facts regarding who made the decision to terminate his placement at RTB, any connection between his complaints and that decision, or any facts to suggest that RTB harbored racial animus against Plaintiff, does not satisfy the but-for standard of causation and does not establish a plausible basis for relief. See id.; Nassar, 133 S. Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 29 of 31 23 DM2\7253965.6 Ct. 2533; Carvalho-Grevious, 2015 U.S. Dist. LEXIS 132381, at *16-17; Cauler, 2015 U.S. Dist. LEXIS 63462, at *17-18 (retaliation claim fails where plaintiff offered only conclusory allegations to connect her firing by her staffing agency employer with the alleged complaint she made to a supervisor at the company where her employer assigned her).17 Plaintiff’s allegations of retaliation based on his complaints to Mr. Williams and Ms. Conway consist of precisely the legal conclusions and labels that Twombly made clear are insufficient to allow a cause of action to proceed. D. Even if Plaintiff’s Claims are Not Dismissed, any Demand for Punitive Damages Under the PHRA Should Be Stricken Because Punitive Damages Are Not Recoverable Under the PHRA. Fed. R. Civ. P. 12(f) permits the Court to strike from a pleading any “redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f); see Sample v. Keystone Mercy Health Plan, No. 12-cv-3188, 2012 U.S. Dist. LEXIS 158725, at *13 (E.D. Pa. Nov. 5, 2012) (striking under Rule 12(f) plaintiff’s demand for punitive damages under the PHRA). The Amended Complaint does not make clear whether Plaintiff seeks punitive damages under the PHRA. See Am. Compl. Request for Relief, § d. To the extent Plaintiff demands punitive damages under the PHRA, any such demand is impertinent and must be stricken because punitive damages are not recoverable under the PHRA. See Snyder v. Bazargani, Nos. 06-cv-2396, 05-cv-4051, No. 05-cv-3817, 241 F. App’x 20, 23 n. 1 (3d Cir. 2007) (“We are mindful of the fact that punitive damages are not available under the PHRA.”) (citing Hoy v. Angelone, 720 A.2d 745 (Pa. 1998)). 17 See also Rodriguez , 2015 U.S. Dist. LEXIS 43812, at *12 (“A bald, unsupported legal conclusion that [plaintiff] was ‘treated worse’ after she asked for a transfer is not entitled to any weight and will be disregarded.”) (citing Fowler, 578 F. 3d at 210); Hassell, 2014 U.S. Dist. LEXIS 60503, at *17-18 (dismissing under Rule 12(b)(6) plaintiff’s retaliation claim in violation of Section 1981 for failure to plead facts plausibly to allege that decrease in her merit increase, bonus, and long-term incentive compensation had any connection to her complaint of discrimination). Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 30 of 31 24 DM2\7253965.6 VI. CONCLUSION For the foregoing reasons, RTB respectfully requests that this Court dismiss Plaintiff’s Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted. Respectfully Submitted, DUANE MORRIS LLP By: /s/ Christopher D. Durham Christopher D. Durham Atty. I.D. No. 200687 Kathryn R. Brown Atty. I.D. No. 313834 Duane Morris LLP 30 S. 17th St. Philadelphia, PA 19103 Tel. 215.979.1000 Fax: 215.979.1020 Attorneys for Defendant Reading Truck Body, LLC Dated: November 15, 2016 Case 5:16-cv-05782-EGS Document 5-1 Filed 11/15/16 Page 31 of 31 DM2\7307716.1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ISAAC MORALES, Plaintiff, v. READING TRUCK BODY, LLC, Defendant. CIVIL ACTION NO. 16-CV-05782-EGS ORDER AND NOW, this _____ day of ______________, 201_, upon consideration of Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint and the Memorandum of Law in support thereof, and any opposition thereto, it is hereby ORDERED that Defendant’s Motion is GRANTED and that Plaintiff’s Amended Complaint is dismissed with prejudice. BY THE COURT: EDWARD G. SMITH United States District Judge Case 5:16-cv-05782-EGS Document 5-2 Filed 11/15/16 Page 1 of 1 DM2\7307719.1 CERTIFICATE OF SERVICE I, Kathryn R. Brown, hereby certify that a true and correct copy of the Motion to Dismiss Plaintiff’s Amended Complaint, Memorandum of Law in support thereof and Proposed Order were served on all counsel of record via the Court’s CM/ECF system and first class mail to the following: Martell Harris, Esq. KRAEMER, MANES & ASSOCIATES LLC US Steel Tower 600 Grant St, Suite 660 Pittsburgh, PA 15219 By: /s/ Kathryn R. Brown Kathryn R. Brown Dated: November 15, 2016 Case 5:16-cv-05782-EGS Document 5-3 Filed 11/15/16 Page 1 of 1