Naugle v. Susquehanna University et al

BRIEF IN SUPPORT re MOTION to Dismiss Plaintiff's Complaint

M.D. Pa.June 6, 2017

250493.1 06/06/2017 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA STEVEN NAUGLE, : Plaintiff, : v. : No. 4:17-cv-00237 : Honorable Matthew W. Brann SUSQUEHANNA UNIVERSITY, : JAY LEMMONS, KATHERINE : FURLONG, JENNIFER BUCHER, : and CINDY WHITMOYER : Defendants. : BRIEF IN SUPPORT OF MOTION TO DISMISS COMPLAINT I. INTRODUCTION All Defendants submit this Brief in support of their Motion to Dismiss Plaintiff’s Complaint for failure to allege exhaustion of administrative remedies before the Equal Employment Opportunity Commission (“EEOC”) or the Pennsylvania Human Relations Commission (“PHRC”). All counts, which are subject to the exhaustion requirement, therefore fail to state a claim upon which relief can be granted under Rule 12(b)(6). In addition, Count I (gender discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”)) and Count II (age discrimination under the Age Discrimination in Employment Act (“ADEA”)) should be dismissed against all individual Defendants because there is no individual liability under Title VII or the ADEA. Finally, Counts II and IV (gender and age discrimination claims pled under the Pennsylvania Human Relations Act (“PHRA”)) should be dismissed Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 1 of 10 2 250493.1 06/06/2017 against the individual Defendants-Mr. Lemmons, Ms. Furlong, Ms. Bucher, and Ms. Whitmoyer (collectively, the “individual Defendants”)-because the Complaint fails to claim that any of the individual Defendants “aided or abetted” any allegedly discriminatory conduct. II. STATEMENT OF FACTS Plaintiff Steven Naugle worked for Susquehanna University (“Susquehanna”) as a interlibrary loan assistant. (Compl. ¶ 8.) Plaintiff reported to and was supervised by Cindy Whitmoyer, a public service librarian at Susquehanna. (Compl. ¶¶ 9, 6.) Mr. Naugle, a 64-year-old male, alleges that he was qualified to perform the duties of his job. (Compl. ¶¶ 10, 11, 12.) Mr. Naugle’s employment was terminated on May 26, 2016. (Compl. ¶ 13.) Mr. Naugle claims that he was replaced by Kasia Janesch, a female in her twenties, and that Ms. Janesch was less qualified than Mr. Naugle to serve as an interlibrary loan assistant. (Compl. ¶¶ 14, 15, 19.) He alleges that he was terminated because of his age and gender. Included as Defendants in this case are the following individuals: Jay Lemmons, Susquehanna’s President, Compl. ¶ 3, Katherine Furlong, who (oddly) is also alleged to be Susquehanna’s President,1 Compl. ¶ 4, Jennifer Bucher, Susquehanna’s Director of Human Resources, Compl. ¶ 5, and Ms. Whitmoyer, 1 Ms. Furlong is actually the Director of the Library. Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 2 of 10 3 250493.1 06/06/2017 Compl. ¶ 6. There are no allegations about any actions taken by President Lemmons, Ms. Furlong, or Ms. Bucher. The only allegation related to Ms. Whitmoyer is that she supervised Mr. Naugle. (Compl. ¶ 9.) III. PROCEDURAL HISTORY Plaintiff filed his Complaint on February 8, 2017. (Doc. 1.) Defendants accepted service via Waiver of Service on May 5, 2017. (Doc. 4.) Defendants’ Response to the Complaint is due on July 6, 2017. IV. STATEMENT OF QUESTIONS INVOLVED A. Whether all claims should be dismissed for failure to allege exhaustion of administrative remedies? Suggested Answer: Yes, as all claims require exhausting administrative remedies, and there are no allegations of exhaustion, they should all be dismissed. B. Whether Count I for gender discrimination under Title VII should be dismissed against all individual Defendants? Suggested Answer: Yes, the gender discrimination claim under Title VII should be dismissed against the individual Defendants because there is no individual liability under Title VII. C. Whether Count II for age discrimination under the ADEA should be dismissed against all individual Defendants? Suggested Answer: Yes, the age discrimination claim under the ADEA should be dismissed against the individual Defendants because there is no individual liability under the ADEA. D. Whether Counts III and IV, gender and age discrimination claims under the PHRA, should be dismissed against the individual Defendants? Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 3 of 10 4 250493.1 06/06/2017 Suggested Answer: Yes, the PHRA claims should be dismissed against the individual Defendants because the Complaint fails to allege that the individual Defendants “aided or abetted” any allegedly discriminatory conduct. V. ARGUMENT Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may move to dismiss a claim for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 4 of 10 5 250493.1 06/06/2017 A. All Counts Should be Dismissed for Failure to Exhaust Administrative Remedies. A plaintiff bringing an employment discrimination suit under Title VII, the PHRA, or the ADEA must first exhaust administrative remedies prior to filing an action in federal court. See Bryant v. Wilkes-Barre Hosp., Co., LLC, 146 F. Supp. 3d 628, 633 n.1 (M.D. Pa. 2015) (Title VII and the PHRA); Rzucidlo v. McHough, 979 F. Supp. 2d 526, 531 (M.D. Pa. 2013) (ADEA). When a plaintiff fails to allege exhaustion of administrative remedies, the Complaint should be dismissed. See Ford v. Pennsylvania, No. 1:06-2410, 2008 WL 112030, at *3 (M.D. Pa. Jan. 9, 2008) (attached hereto as Exhibit A) (“Here, the Complaint does not allege that Plaintiff filed a discrimination claim with the PHRC or the EEOC prior to filing the instant lawsuit. Accordingly, to the extent that Plaintiff intended to assert a claim pursuant to Title VII or the PHRA, we dismiss that claim because Plaintiff has failed to allege that he exhausted his administrative remedies prior to filing suit.”). Because Plaintiff has not alleged exhaustion of remedies before the PHRC or EEOC, the Complaint should be dismissed. B. The Title VII Claim in Count I Should be Dismissed Against the Individual Defendants. Count I of the Complaint is a claim for gender discrimination, and is pled under Title VII against all Defendants. Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 5 of 10 6 250493.1 06/06/2017 There is no individual liability under Title VII. See Brown v. TD Bank N.A., No. 15-5475, 2016 WL 1298973, at *9 (E.D. Pa. April 4, 2016) (finding no individual liability under Title VII) (attached hereto as Exhibit B); see also Rodas v. Assurance Quality Grp., Inc., 13-cv-77, 2014 WL 12479989, at *16 (N.D. Ga. Nov. 7, 2014) (same) (attached hereto as Exhibit C). Further, there is no individual liability for supervisors, Brown, 2016 WL 1290973, at *9, or a President or CEO, Rodas, 2014 WL 12479989, at *16, under Title VII. The Title VII claim set forth in Count I of the Complaint against the individual Defendants should be dismissed with prejudice, as there is no individual liability under Title VII. C. The ADEA Claim in Count II Should be Dismissed Against the Individual Defendants. Count II of the Complaint is a claim for age discrimination, and is pled under the ADEA against all Defendants. There is no individual liability under the ADEA, even for business owners, shareholders, and corporate officers. See Lozosky v. Keystone Bus. Prods., Inc., No. 3:13-0512, 2015 WL 4727073, at *8 (M.D. Pa. Aug. 10, 2015) (finding no individual liability under the ADEA) (attached hereto as Exhibit D). The ADEA claim set forth in Count II of the Complaint against the individual Defendants should be dismissed with prejudice, as there is no individual liability under the ADEA. Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 6 of 10 7 250493.1 06/06/2017 D. The PHRA Claims Should be Dismissed Against the Individual Defendants. Counts III and IV are PHRA claims alleging gender and age discrimination. Plaintiff alleges, in conclusory fashion, that he was discharged because of his gender, Compl. ¶ 24, and because of his age, Compl. ¶ 27. Under Section 955(e) of the PHRA, 43 P.S. § 955(e), supervisory employees may be held “individually liable for ‘aiding and abetting’ their employer’s discriminatory practices.” Rodrigues v. Motorworld Auto. Grp., Inc., No. 3:16-1674, 2017 WL 1036477, at *5 (M.D. Pa. March 17, 2017) (attached hereto as Exhibit E). Section 955(e) of the PHRA provides the “sole basis of individual liability under the PHRA.” Id. (internal citations omitted). Thus, “an individual supervisory employee can be held liable under an aiding and abetting/accomplice liability theory pursuant to § 955(e) for his own direct acts of discrimination or for his failure to take action to prevent further discrimination by an employee under supervision.” Brzozowski v. Pennsylvania Tpk. Comm’n, 165 F. Supp. 3d 251, 263 (E.D. Pa. 2016) (internal citations omitted). Courts have emphasized that liability under Section 955(e) only extends to those who are in a supervisory role as “only supervisors can share the discriminatory purpose and intent of the employer that is required for aiding and abetting.” Id. The Complaint contains no allegation regarding any action or inaction by President Lemmons, Ms. Furlong, or Ms. Bucher. In fact, the Complaint does Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 7 of 10 8 250493.1 06/06/2017 make clear that President Lemmons, Ms. Furlong, and Ms. Bucher were not Mr. Naugle’s supervisors. See Compl. at ¶ 9. The PHRA claims against President Lemmons, Ms. Furlong, and Ms. Bucher must be dismissed. The PHRA claim against Ms. Whitmoyer is likewise deficient. Although the Complaint contains a single allegation with regard to Ms. Whitmoyer- that Mr. Naugle reported to and was supervised by her-that allegation falls short of the requirement of Section 955(e) that Plaintiff must make some allegation of aiding and abetting. There are simply no facts in the Complaint from which Ms. Whitmoyer could be liable for aiding and abetting discriminatory conduct toward Mr. Naugle. The PHRA claims against the individual Defendants should be dismissed. Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 8 of 10 9 250493.1 06/06/2017 VI. CONCLUSION All claims should be dismissed for failure to exhaust administrative remedies. Further, Counts I and II should be dismissed against the individual Defendants because there is no individual liability under Title VII or the ADEA. Finally, the PHRA claims should be dismissed against the individual Defendants because the Complaint contains no facts to support those claims. Respectfully submitted, DATE: June 6, 2017 /s/ Emily H. Edmunds Emily H. Edmunds, Esquire PA Bar No. 205919 SAUL EWING LLP 2 North 2nd Street, 7th floor Harrisburg, PA 17101 (717) 257-7576 Attorney for Defendants Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 9 of 10 250493.1 06/06/2017 CERTIFICATE OF SERVICE I, Emily H. Edmunds, certify that on this date I filed via the ECF system a true and correct copy of the foregoing Motion to Dismiss Plaintiff’s Complaint which constitutes valid service on the following registered user: Timothy A. Bowers 20 North Front Street P.O. Box 88 Sunbury, PA 17801 Counsel for Plaintiff Dated: June 6, 2017 /s/ Emily H. Edmunds Emily H. Edmunds Case 4:17-cv-00237-MWB Document 7 Filed 06/06/17 Page 10 of 10 Ford v. Pennsylvania, Not Reported in F.Supp.2d (2008) 2008 WL 112030 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2008 WL 112030 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Robert FORD, Plaintiff v. Commonwealth of PENNSYLVANIA, et al., Defendant. Civil No. 1:CV-06-2410. | Jan. 9, 2008. Attorneys and Law Firms James J. West, James J. West, LLC, Harrisburg, PA, for Plaintiff. Sarah C. Yerger, Office of Attorney General, Harrisburg, PA, for Defendant. MEMORANDUM and ORDER SYLVIA H. RAMBO, District Judge. *1 Before the court is Defendants' motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. For the reasons that follow, the motion will be granted. However, because Plaintiff initially filed the complaint pro se, but has since retained counsel, the court will grant plaintiff twenty days to file an amended complaint in accordance with the following memorandum and order. I. Background Plaintiff, a Caucasian male and an honorably discharged military veteran, applied for at least twenty-five civil service positions as an Equal Employment Opportunity Specialist at a number of Commonwealth agencies between 2001 and 2004, but was rejected for every position. (Doc. 1 at 2.) Plaintiff had the highest score on the civil service examination for every position for which he applied. (Id.) Additionally, Plaintiff was awarded a veteran's preference for his military service, and he claims that under Pennsylvania law, this should have resulted in his automatic selection for any position for which he was one of the top three applicants. (Id.) Nevertheless, after interviewing for each of these positions, Plaintiff was rejected and the positions either went unfilled or other candidates were selected. (Id.) On December 18, 2006, Plaintiff filed the instant pro se complaint (Doc. 1), alleging that several state agencies and individuals 1 refused to hire him in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2000e-17, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, and the Pennsylvania Military Affairs Act (“MAA”). Plaintiff seeks reinstatement, back pay, attorneys fees, and one million dollars in damages to be donated to a scholarship fund for children of veterans killed in Iraq and Afghanistan. (Doc. 1 at 3.) On April 13, 2007, Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. 9.) A brief in support of that motion was filed on April 23, 2007. (Doc. 10.) On June 7, 2007, pro bono counsel entered an appearance on behalf of Plaintiff. On June 30, 2007 Plaintiff filed a brief in opposition to the motion to dismiss (Doc. 16). In opposing the motion to dismiss, Plaintiff argued that because the complaint was filed pro se, it should be construed liberally as raising claims pursuant to 42 U.S.C. § 1981 and § 1983. However, a motion to file an amended complaint raising those claims has not been filed. Defendants' reply brief was filed on August 10, 2007 (Doc 17). Accordingly, the matter is ripe for disposition. II. Legal Standard: Motion to Dismiss Among other requirements, a sound complaint must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a) (2). This statement must “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). A complaint need not contain detailed factual allegations, but a plaintiff must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action” to show entitlement to relief as prescribed by Rule 8(a)(2). Id. at 1965; accord, e.g., Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.2005). A defendant may attack a complaint by a motion under Rule Case 4:17-cv-00237-MWB Document 7-1 Filed 06/06/17 Page 1 of 3 Ford v. Pennsylvania, Not Reported in F.Supp.2d (2008) 2008 WL 112030 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 12(b)(6) for failure to state a claim upon which relief can be granted. *2 In deciding a motion to dismiss under Rule 12(b) (6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir.2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.2007). The court is not, however, “compelled to accept unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.2007) (quotations and citations omitted). If the facts alleged are sufficient to “raise a right to relief above the speculative level” such that the plaintiff's claim is “plausible on its face,” a complaint will survive a motion to dismiss. Bell Atlantic Corp., 127 S.Ct. at 1965, 1974; Victaulic Co. v. Tieman, 499 F.3d 227, 234-35 (3d Cir.2007). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as for what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003); Youse v. Carlucci, 867 F.Supp. 317, 318 (E.D.Pa.1994). Such a complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), quoted in Erickson, 127 S.Ct. at 2200. “To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993) (citations omitted). The court may consider “undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s].” Id. Additionally, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir.2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.2002) (“Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.”) (internal quotation omitted). However, the court may not rely on other parts of the record in making its decision. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994). Finally, in the Third Circuit, a court must grant leave to amend before dismissing a complaint that is merely deficient. See, e.g., Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir.2001); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.2000). “Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v. Parker, 363 F.3d 229, 236 (3d Cir.2004). III. Discussion *3 Defendants argue that Plaintiff's claims should be dismissed for the following reasons: (1) Plaintiff failed to plead exhaustion of his administrative remedies with the EEOC as required by Title VII; (2) individual defendants may not be sued under Title VII and the ADEA; (3) the Eleventh Amendment bars the ADEA and MAA claims against Commonwealth agencies; and (4) Plaintiff's claims are barred by state sovereign immunity. 2 In his opposition brief, Plaintiff concedes that individual defendants may not be liable under Title VII and the ADEA. 3 Accordingly, those claims will be dismissed. However, Plaintiff argues that the Title VII claims against the Commonwealth and agencies should not be barred by his failure to plead exhaustion. Additionally, in response to Defendants' arguments regarding sovereign immunity and suits against individual defendants, Plaintiff asserts that because the complaint was initially filed pro se, it should be construed liberally as raising claims under 42 U.S.C. §§ 1981 and 1983. These arguments will be addressed in turn. A. Title VII-Exhaustion Prior to bringing a Title VII claim in federal court, a plaintiff must exhaust administrative remedies by filing a charge with the Equal Employment Opportunity Commission (“EEOC”). Burgh v. Borough Council of Montrose, 251 F.3d 465, 470 (3d Cir.2001). Once the EEOC has investigated the claim and determined that it will take no action, it must issue a “right-to-sue” letter, indicating that the claim has been exhausted. Id. The Third Case 4:17-cv-00237-MWB Document 7-1 Filed 06/06/17 Page 2 of 3 Ford v. Pennsylvania, Not Reported in F.Supp.2d (2008) 2008 WL 112030 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Circuit has held that “[a] complaint does not state a claim upon which relief may be granted unless it asserts the satisfaction of the precondition to suit specified by Title VII: prior submission of the claim to the EEOC (or a state conciliation agency) for conciliation or resolution.” Hornsby v. U.S. Postal Serv., 787 F.2d 87 (3d Cir.1986); Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir.1997). Here, Plaintiff does not allege exhaustion in his complaint. While it is true that failure to exhaust is an affirmative defense, see Robinson, 107 F.3d at 1021, Plaintiff may not prevail on his Title VII claims if he has not first exhausted his administrative remedies by filing a complaint with the EEOC and receiving a rightto-sue letter. Because Plaintiff has not alleged exhaustion in his complaint, he has failed to state a claim upon which relief can be granted and his Title VII claim will be dismissed without prejudice pursuant to Fed.R.Civ.P. 12(b)(6), with leave to file an amended complaint. B. 42 U.S.C. § 1981 and 1983 Plaintiff also asserts that because the complaint was initially filed pro se, it should be construed liberally as raising claims under 42 U.S.C. §§ 1981 and 1983. However, since obtaining counsel, Plaintiff has not sought leave to amend the complaint to make those claims. Defendants argue that because Plaintiff has now retained counsel, the complaint should no longer be construed liberally to include claims not specifically asserted in the pro se complaint. In light of the fact that Plaintiff has now retained counsel, the court declines to construe Plaintiff's pro se complaint as raising claims pursuant to 42 U.S.C. §§ 1981 and 1983, but will grant Plaintiff leave to file an amended complaint raising those claims. IV. Conclusion *4 In accordance with the foregoing discussion, IT IS HEREBY ORDERED THAT: 1) Plaintiff's Title VII and ADEA claims against individual defendants are DISMISSED WITH PREJUDICE; 2) Plaintiff's remaining Title VII claims are DISMISSED WITHOUT PREJUDICE; and 2) Plaintiff is granted 20 days LEAVE TO FILE AN AMENDED COMPLAINT. All Citations Not Reported in F.Supp.2d, 2008 WL 112030 Footnotes 1 Defendants include the Commonwealth of Pennsylvania, Governor Edward G. Rendell, the State Civil Service Commission (“SCSC”), Executive Director Jeffrey Wallace, the Department of Transportation (“PennDOT”), Secretary Allen Biehier, the Department of Public Welfare (“DPW”), Secretary Estelle Richman, the Department of General Services (“DGS”), Secretary James Creedon, the Department of Corrections (“DOC”), Secretary Jeffrey Beard, the Department of Labor and Industry (“L & I”) and Secretary Stephen Schmerin. 2 Defendants also argue that the court should decline to exercise supplemental jurisdiction on state law claims under the Military Affairs Act. Because Plaintiff is granted leave to amend the complaint, the court will not address the issue of supplemental jurisdiction at this time. 3 Plaintiff also concedes that the Commonwealth and its agencies are generally immune from suit for damages under the Eleventh Amendment for his ADEA and MAA claims. However, this concession does not require the dismissal of these claims because Plaintiff also seeks prospective injunctive relief which is not barred by the Eleventh Amendment. See Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Edelman v. Jordan, 415 U.S. 651, 663-64, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 4:17-cv-00237-MWB Document 7-1 Filed 06/06/17 Page 3 of 3 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 1298973 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania. Howard Brown v. TD Bank, N.A., Agnus Lin, Robert Mindick, Ronald Matthew, and Eve Badecki. CIVIL ACTION NO. 15-5474 | Signed 04/04/2016 MEMORANDUM Stewart Dalzell, J. I. Introduction *1 We consider here the defendants' partial motion to dismiss. Plaintiff Howard Brown brings twelve claims against defendants TD Bank, N.A. (“TD Bank”) and several of its employees, alleging various violations of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act (“PHRA”). Brown alleges that TD Bank and the individual defendants -- Agnus Lin, Robert Mindick, Ronald Matthew, and Eve Badecki -- discriminated against him based on his race and then retaliated after he complained. TD Bank and the individual defendants move to dismiss Counts VII, VIII, and XII. The individual defendants also move to dismiss Counts I, III, V, VII, X, XI, and XII. Brown opposes the defendants' motion. For the reasons explained below, we will grant the defendants' motion to dismiss Counts VII, VIII and XII in their entirety, and Count I with respect to the individual defendants. II. Standard of Review A defendant moving to dismiss under Fed. R. Civ. P. 12(b) (6) bears the burden of proving that the plaintiff has failed to state a claim for relief. See Fed. R. Civ. P. 12(b)(6); see also, e.g., Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). To survive a Rule 12(b)(6) motion, the complaint must contain sufficient factual matter, accepted as true, to state a facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. As the Supreme Court stresses, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action…do not suffice.” Id. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. In the wake of Twombly and Iqbal, our Court of Appeals laid out a two-part test to apply when considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6): First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations and quotations omitted). In deciding a motion to dismiss, we may consider “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record,” and any “undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Benefits Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). *2 We recite the facts as they appear in the first amended complaint. III. Factual Background Defendant TD Bank hired plaintiff Howard Brown in April of 2011 as an assistant vice-president in its asset- based lending and syndications department. First Am. Compl. ¶ 18. In June of 2013, after positive performance Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 1 of 10 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 reviews in 2011 and 2012, Brown was promoted to vice- president, credit portfolio manager of the middle market lending department. Id. at ¶¶ 19-20. During the first few months after his promotion, Brown was supervised by defendant Robert Mindick and also by Damien Ghee, who is not a party in this case. Id. at ¶ 21. Brown alleges that Mindick began to subject him to “discriminatory harassment” shortly after his promotion. Id. at ¶ 22. Brown is black and Mindick is white. Id. at ¶¶ 16, 21. Brown alleges that Mindick treated him “in a rude and condescending manner, selectively enforced policies against him, failed to invite him to important meetings for accounts that he was working on, and issued him his first negative performance evaluation,” and that Mindick did not treat Brown's non-black co-workers this way. Id. at ¶ 23. In December of 2013, Brown expressed his concerns about the alleged discrimination and harassment to Mindick and questioned why he was being treated differently than his non-black co-workers. Id. at ¶ 24. Mindick responded that he was afraid Brown “would punch him in the face,” even though Mindick had no reason to believe that Brown was violent or aggressive, thereby implying to Brown that he was aggressive or violent because of his race. Id. at ¶ 25. In January of 2014, Damien Ghee moved to a new position at TD Bank and defendant Agnus Lin began co-supervising Brown. Id. at ¶ 26. Brown confided in Lin that he believed Mindick was exhibiting prejudice toward him. Id. at ¶ 27. Lin confirmed that Mindick treated him more harshly than his non-black co-workers, and that Mindick appeared to be “watching” him. Id. While being supervised by Lin and Mindick, Brown claims he continued to be subjected to increased hostility and harassment from management, including both Lin and Mindick. Id. at ¶ 28. Brown alleges that Lin placed him on an unwarranted performance improvement plan (“PIP” or “plan”) only one month after she began supervising him and that the plan included inaccurate and false accusations. Id. at ¶ 29. He also alleges that, one week before Lin placed him on the PIP, he complained to defendant Eve Badecki that his supervisors were discriminating against him and treating him unfairly. Id. at p.7 n.4. He alleges that management treated him less favorably than his non-black co-workers by failing to provide him with the proper support, refusing to pay for his professional memberships, refusing to provide him with more lucrative accounts, selectively forcing him to account for his hours, failing to provide him with additional time to complete projects (when needed on a rare occasion), refusing to respond to his e-mails, making false accusations against him to destroy his credibility and put his job in jeopardy, [and] changing his assignments and/or adding tasks to his assignments without giving him proper time to complete said assignments. *3 Id. at ¶ 29. On March 11, 2014, Brown's attorney emailed a draft of Brown's original charge of discrimination to TD Bank's management, including the individual defendants and Vincent Vita in the email. Id. at ¶ 31. The email stated that if he did not hear from TD Bank or its counsel on or before March 24, 2014, Brown would file his draft charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”). Id. at ¶ 31. Brown's original charge named defendants Lin, Mindick, and Badecki. Id. at ¶ 32. Badecki never investigated Brown's complaints as memorialized in his counsel's email. Id. at ¶ 57. About one day later, on March 12, Brown received a new PIP, which he claims also contained false and inaccurate information. Id. at ¶ 34. He received the new plan during a meeting with defendant Ronald Matthew. Id. at ¶ 35. During the meeting, Matthew was very hostile, belittling and ridiculing him. Id. About two weeks later, on or about March 27, 2014, Brown met with Matthew and Lin. Id. at ¶ 36. During this meeting, Matthew asked Brown, “How do you feel we are discriminating against you?” and Brown felt intimidated and uncomfortable since he thought the meeting was about the PIP, and he had not been told they would be discussing his discrimination claims. Id. at ¶ 37. Matthew asked Lin if Brown had kept up with his credit reports, and Lin responded that “unfortunately” there were no credit reports due. Id. at ¶ 38. Brown Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 2 of 10 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 believes that since they were disappointed that they could not reprimand him based on his credit reports, Lin and Matthew instead criticized him for not having completed certain projects one week ahead of schedule. Id. at ¶ 39. Matthew told Lin to assign more work to Brown and to revise the PIP. Id. On or about April 7, 2014, Brown emailed Badecki to complain about Matthew and Lin's conduct during the March 12 meeting and to rebut his revised PIP from March 27. Id. at ¶ 40. In his email, Brown told Badecki that he did not think it was appropriate to discuss his prior discrimination complaints during a meeting about his work performance. Id. at ¶ 41. Badecki replied that she would look into the matter, but she never followed up with him. Id. at ¶ 42. On or about April 10, 2014, Brown had another PIP meeting with Matthew and Lin. Id. at ¶ 43. Lin gave Brown a new plan and complained that he had made typographical errors in one of his draft reports. Id. Brown acknowledged that his draft did include some errors “but indicated that everyone make[s] mistakes and politely pointed out a few typographical errors that Defendant Lin had made in the PIP that she had just given him.” Id. at ¶ 43. The meeting ended cordially and Brown worked the remainder of the day. Id. at ¶ 44. Lin then complained to Badecki that Brown had discriminated against her based on her national origin because he had pointed out spelling and grammatical errors in the PIP that she gave him. Id. at ¶ 45. According to Brown, Lin is “Asian-American.” Id. at ¶ 26. Brown avers that Lin only made her complaint about the alleged discrimination after she had received a draft of his EEOC charge naming her as one of the employees discriminating against him and after she had discussed his complaints with Badecki. Id. at ¶ 46. *4 On or about April 15, 2014, Badecki called Brown into a meeting and told him it was about an investigation regarding his PIP. Id. at ¶ 47. During that meeting, Brown was asked if he had made any derogatory or discriminatory remarks about Lin during the April 10 meeting. Id. at ¶ 48. Brown denied that he had. Id. Badecki then told him that he was being suspended because of the investigation into what occurred at the April 10 meeting with Lin and Matthew. Id. at ¶ 50. Badecki had already drafted a suspension letter for Brown before she asked him to attend the April 15 meeting. Id. at ¶ 51. After informing Brown of his suspension, Badecki permitted him to proceed to his desk without an escort. Id. at ¶ 52. But “before Plaintiff could barely even get to his desk, Defendant Badecki approached Plaintiff, closed his laptop and indicated that he needed to leave.” Id. Brown gave Badecki his Blackberry and began clearing items from his desk, including some personal papers that he placed in his bag. Id. at ¶ 53. Badecki accused Brown of trying to take loan documents. Id. at ¶ 54. Brown tried to tell Badecki that he had taken only his personal papers, but Badecki insisted that he give her his bag. Id. at ¶ 55. He politely refused, since it was his personal property. Id. Badecki sent a suspension notice to Brown's attorney soon thereafter, stating that Brown was being suspended for failing to cooperate with the investigation, attempting to dispose of confidential documents, and placing a large number of other documents that appeared to be TD Bank property into his bag before leaving the building. Id. at ¶ 56. On or about April 23, 2014, Brown's attorney emailed defendants indicating that Brown would cooperate with the investigation, but that he believed the April 15 accusations were in retaliation for Brown's prior complaints of discrimination and retaliation. Id. at ¶ 58. On or about April 29, 2014, Brown filed a charge of discrimination with the EEOC. Id. at ¶ 59. Brown's attorney also emailed a copy of the charge to defendants' attorney. Id. at ¶ 60. Several hours later, defendants' attorney emailed Brown's attorney “and threatened to file a lawsuit against” Brown if he did not return all of TD Bank's documents, data, property, materials, documents, records, or information by the close of business the next day. Id. at ¶ 61. On or about May 1, 2014, TD Bank fired Brown. Id. at ¶ 62. TD Bank's termination letter stated that it was firing him “based upon the results of [its] investigation into the incidents of April 10, 2014 and April 15, 2014.” Id. at ¶ 63 (quoting from the termination letter). The termination letter characterized these incidents as Brown making discriminatory remarks to Lin, violating TD Bank policy by refusing to cooperate in its investigation of those remarks, attempting to improperly dispose of confidential Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 3 of 10 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 documents, and removing TD Bank documents and other property from the workplace after being suspended. Id. According to Brown, “Defendants attempted to have [him] sign an affidavit requesting that [he] agree to demands that would, among other things, prevent him from ever disseminating documents or information relating to his work (with no exception for providing information to the EEOC) and prevent him from ever contacting” TD Bank's clients or customers, which he believes “would bar him from possibly obtaining information relevant to his EEOC charge.” Id. at ¶ 64. Brown agreed to sign an affidavit if the parties could agree on terms addressing those concerns. Id. at ¶ 65. No such terms were agreed to, and TD Bank sued Brown for conversion in the Court of Common Pleas of Philadelphia County on August 22, 2014. Id. at ¶ 66. *5 In the action filed in the Court of Common Pleas, TD Bank alleged that Brown's employment with it gave him access to confidential and sensitive information such as loan applications, tax returns, account statements, credit reports, customer appraisal documentation, legal and court documents, title reports, and propriety information relating to TD Bank's business operations and strategy. Defs.' Partial Mot. to Dismiss (“Partial MTD”) Ex. C at 5-6. TD Bank claimed, with respect to Brown's conduct when clearing out his desk, that he “improperly disposed of some confidential customer documents, and began placing into a bag a large number of documents, many of which appeared to contain confidential and proprietary information.” Id. at 6. TD Bank further alleged that Brown refused Badecki's request to return the documents in his bag “and fled the workplace,” and that he “wrongfully retained” a TD Bank credit card and an RSA token (which provides the holder with remote access to TD Bank's electronic systems). Id. TD Bank also claimed that it had evidence that Brown retained documents based upon emails from his counsel that purported to return certain documents and emails Brown sent from his TD Bank email account to his personal email account containing TD Bank's documents. Id. at 7-8. Because Brown would not sign TD Bank's requested certification that he had returned all of TD Bank's confidential or propriety documents and had not improperly disseminated such material, TD Bank sued him for conversion. Id. at 8-9. Brown properly exhausted his administrative remedies with respect to his Title VII claims by timely filing charges with the EEOC and filing this lawsuit within ninety days of receiving a right-to-sue letter. First Am. Compl. ¶ 5. He exhausted his administrative remedies with respect to his PHRA claims by timely filing charges with the PHRC and waiting at least one year to file this lawsuit. Id. at ¶ 6. IV. Discussion The first amended complaint raises twelve claims under Section 1981, Title VII, and the PHRA. All defendants move to dismiss Counts VII, VIII, and XII. See Partial MTD at 7. The individual defendants move to dismiss Counts I, III, V, VII, X, XI, and XII. See id. at 16, 20. In Counts VII, VIII, and XII, Brown alleges that the defendants violated Section 1981, Title VII, and the PHRA by threatening to file and then filing a retaliatory civil action against him. First Am. Compl. ¶¶ 102-06, 107-10, 120-22. In Count I, Brown alleges that all defendants violated Section 1981 by creating a hostile work environment, discriminating against him based on his race, and retaliating against him. Id. at ¶¶ 67-73. In Counts III, V, X, and XI, Brown alleges that all defendants violated both Section 1981 and the PHRA by wrongfully suspending and terminating him. Id. at ¶¶ 80-85, 91-96, 114-16, 117-19. Brown opposes the motion or, in the alternative, requests leave to amend his complaint to cure any deficiencies. Pl.'s Resp. in Opp. at 29-30. We consider the parties' arguments here. A. Counts VII, VIII, and XII: The Civil Action in State Court Brown alleges in Counts VII, VIII, and XII that the defendants violated Section 1981, 1 Title VII, and the PHRA by threatening to sue Brown, and then actually filing a lawsuit against him. All defendants move to dismiss these three counts, arguing that: (1) the communication that Brown characterized as a “threat” of litigation was not a threat and, even if it were, such a threat does not constitute an adverse employment action; (2) the Noerr-Pennington doctrine bars Brown's retaliation claims; and (3) there was no existing or proposed contractual relationship between Brown and TD Bank when TD Bank filed its lawsuit. 2 Partial Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 4 of 10 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 MTD at 7, 9, 11. Brown responds that: (1) the threat of litigation and eventual lawsuit by TD Bank are adverse employment actions because they would have dissuaded a reasonable worker from making or supporting a charge of discrimination; (2) the Noerr-Pennington doctrine does not apply to Title VII and Section 1981 claims; and (3) Section 1981 broadly encompasses at-will employment contracts, so a lawsuit filed after termination remains actionable. Pl.'s Resp. in Opp. at 13, 16, 18. 1. Whether The Threat Of Litigation And Filing Of A Lawsuit Are Adverse Employment Actions *6 A prima facie case for retaliation under Section 1981 requires allegations that (1) the plaintiff engaged in protected activity, (2) the employer took an adverse employment action against the plaintiff, and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010) (citing Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006)). The same standard applies to retaliation cases under Title VII and the PHRA. See id. at 798 n.15 (citing Humphries v. CBOCS West, Inc., 474 F.3d 387, 403-04 (7th Cir. 2007), aff'd, 553 U.S. 442 (2008) (explaining that the same prima facie requirements apply to discrimination claims brought under Title VII and Section 1981); Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002) (explaining that the PHRA and Title VII's anti-retaliation provisions are substantially similar and that the PHRA is interpreted identically to federal anti-discrimination laws unless there is something specifically different in its language requiring that it be treated differently)). To determine whether a plaintiff has suffered an adverse employment action, we must inquire whether the challenged conduct was materially adverse, meaning that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The concern is whether an employer is deterring victims of discrimination from complaining to the EEOC, courts, or employers, and “normally petty slights, minor annoyances, and simple lack of good manners” do not create such deterrence. Id. The standard is objective, and so we focus on how the “reasonable employee” would react and not a plaintiff's subjective feelings. Id. at 68-69. The significance of an alleged retaliatory act depends upon the circumstances of the case, and so we must view the act in context. Id. at 69. This Court has previously found that an employer's threat to accuse an employee of a criminal offense “could certainly be construed as 'materially adverse.”' Walsh v. Irvin Stern's Costumes, 2006 WL 2380379, *2- *3 (E.D. Pa. Aug. 15, 2006) (Baylson, J.) (unreported) (reasoning in light of Burlington Northern that “common sense suggests that one good way to discourage an employee” from bringing discrimination charges would be to threaten to bring criminal charges against her unless the employee withdrew her discrimination claims). See also Rattigan v. Holder, 604 F. Supp. 2d 33, 53 (D.D.C. 2009) (discussing cases to support the conclusion that whether an action is materially adverse is determined by whether it holds a deterrent prospect of harm, not by whether the harm comes to pass or whether any ill effects are felt in the present). Similarly, other courts have found that the filing of a counterclaim by an employer might well ground a retaliation claim, since an employee might choose to withdraw her charges of discrimination rather than face counterclaims “which directly attack the integrity of the plaintiff as well as her professional standing as an attorney.” Nesselrotte v. Allegheny Energy, Inc., 2007 WL 3147038, *12 n.25 (W.D. Pa. Oct. 25, 2007) (Fischer, J.) (unreported). See also Parry v. New Dominion Construction, Inc., 2015 WL 540155, *7 (W.D. Pa. Feb. 10, 2015) (Schwab, J.) (unreported) (explaining that the filing of a counterclaim subjecting an employee to potential monetary damages could dissuade a reasonable worker from pursuing a charge of discrimination). While Nesselrotte and Parry were both in the procedural posture of a motion for leave to amend the complaint, the reasoning applies with equal force in the procedural posture of a motion to dismiss, since we accept the complaint's well-pled factual allegations as true. *7 Considering the reasoning in Walsh, Rattigan, Nesselrotte, and Parry, we are persuaded that threating to file a civil action and actually filing a civil action may be adverse employment actions in light of Burlington Northern' s broader perspective on what is materially adverse and based upon a common sense approach to what might deter a reasonable employee. Threatening to file and then filing a lawsuit are beyond the petty slights, minor annoyances, and simple lack of good manners that are insufficient to deter the reasonable worker. Litigation Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 5 of 10 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 is expensive, time-consuming, and emotionally draining. So too is the mere threat of litigation, since the steps an individual must take when threatened with a lawsuit are often the same steps an individual must take when actually sued: locating and obtaining counsel, evaluating options for settlement or litigation, and spending time and treasure to resolve the prospective or filed claim. A reasonable worker, faced with the prospect or reality of a civil action, might well decide to abandon his charges of discrimination rather than move forward. We therefore find, in this procedural posture of a motion to dismiss, that the first amended complaint alleges sufficient factual matter, accepted as true, to make a prima facie showing under Section 1981, Title VII, and the PHRA that TD Bank took an adverse employment action against Brown when it threatened to file, and then filed, a civil action against him in the Court of Common Pleas of Philadelphia County. 2. Whether The Noerr-Pennington Doctrine Bars Plaintiff's Retaliation Claim The Noerr-Pennington doctrine protects parties who petition government entities -- such as legislatures, administrative agencies, and the courts --from claims arising in response to that petitioning. See Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 122 (3d Cir. 1999) (citing Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961) and United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965)). The Noerr-Pennington doctrine thus protects those who petition for relief through the courts. California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). Although this doctrine arose in the antitrust arena, it has been extended by analogy to petitioning in other contexts. We, Inc. v. City of Philadelphia, 174 F.3d 322, 326-27 (3d Cir. 1999). The doctrine does not, however, protect “sham” petitioning -- meaning petitions or lawsuits that are “nothing more than an attempt to interfere directly with the business relationships of a competitor.” Cheminor Drugs, Ltd., 168 F.3d at 122; Professional Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56 (1993) ( “PRE”). We have previously held that lawsuits are a form of protected petitioning under Noerr-Pennington, and that if the facts relevant to determining Noerr-Pennington's applicability are undisputed and contained within the record, we may decide the issue on a motion to dismiss. See Trustees of the Univ. of Pa. v. St. Jude Children's Research Hosp., 940 F. Supp. 2d 233, 241-43 (E.D. Pa. 2013). Litigation is a “sham” within the meaning of Noerr-Pennington if it is objectively baseless, meaning that no reasonable litigant could realistically expect success on the merits. PRE, 508 U.S. at 60. If a reasonable litigant could conclude that its suit is reasonably calculated to elicit a favorable outcome, then the suit is protected by Noerr-Pennington. Id. If, however, the challenged litigation is objectively meritless, then the court may consider the litigant's subjective motivation. Id. A plaintiff must first disprove the challenged lawsuit's objective legal viability before we may consider the subjective components of the sham litigation. Id. at 61. We first inquire whether TD Bank's lawsuit against plaintiff was objectively baseless. See Partial MTD Ex. C. 3 *8 In TD Bank's suit against Brown, it alleged that Brown “improperly disposed of some confidential customer documents, and began placing into a bag a large number of documents, many of which appeared to contain confidential and proprietary information.” Partial MTD Ex. C at 6. TD Bank further alleged that Brown refused Badecki's request to return the documents he put in his bag, fled the workplace, and wrongfully retained both a TD Bank credit card and a RSA token. Id. TD Bank also alleged that it had email evidence of Brown's retention of TD Bank's documents. Id. at 7-8. By Brown's own account, he did not comply with Badecki's request to return the papers he put in his bag and never signed an affidavit or certification that he had not improperly retained or disseminated TD Bank's confidential or propriety documents or information, as TD Bank requested he do. 4 In light of these facts, a reasonable litigant in TD Bank's position could expect success on the merits and that litigation predicated on such facts could lead to a favorable outcome, namely, either the return of the documents or assurances that there were no documents left to return. Noerr-Pennington's protections do not extend to sham litigation, but a reasonable litigant in TD Bank's position would have had an objective basis for filing the lawsuit in question. Since TD Bank's civil Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 6 of 10 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 action is not objectively meritless, we do not inquire about TD Bank's subjective motivations in filing the action. See, e.g., PRE, 508 U.S. at 60 (“Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation.”); see also Trustees of the Univ. of Pa. v. St. Jude Children's Research Hosp., 940 F. Supp. 2d at 243 (explaining that the question of intent would only be relevant if the court were to find that the action itself was a sham). Since we find that TD Bank's civil action filed against Brown in the Court of Common Pleas was not a sham, it is entitled to protection under the Noerr-Pennington doctrine. We will therefore dismiss Counts VII, VIII, and XII of the first amended complaint with prejudice. We omit further discussion of these claims and the parties' arguments with respect thereto. B. Counts I, III, and V: Personal Liability Under Section 1981 In Counts I, III, and V Brown alleges that the defendants created a hostile work environment and wrongfully suspended and wrongfully terminated him, all in violation of Section 1981. The individual defendants move to dismiss all three counts, arguing that they fail to set forth allegations sufficient to demonstrate that they were personally involved in any discriminatory conduct against Brown or that they either intentionally caused TD Bank to infringe upon Brown's Section 1981 rights or authorized, directed, or participated in any infringing conduct. Partial MTD at 16-17. Brown responds that his factual allegations raise the plausible inference that there is an affirmative link causally connecting the individual defendants with the alleged discriminatory actions. Pl.'s Resp. in Opp. at 24. *9 Although claims against individual supervisors are not permissible under Title VII, individual liability is possible under Section 1981 if the defendants intentionally cause an infringement of the rights protected by Section 1981, regardless of whether the employer-entity may be held liable. Cardenas v. Massey, 269 F.3d 251, 268 (3d Cir. 2001); Weldon v. Kraft, Inc., 896 F.2d 793, 796 (3d Cir. 1990); Al-Khazraji v. Saint Francis Coll., 784 F.2d 505, 518 (3d Cir. 1986), aff'd, 481 U.S. 604 (1987). Individuals may be held personally liable if they intentionally caused the employer-entity to infringe upon a plaintiff's Section 1981 rights or if they authorize, direct, or participate in the alleged discriminatory conduct. Al-Khazraji, 784 F.2d at 518. Because the individual defendants' alleged actions are pertinent herein, we briefly review the first amended complaint's specific allegations as to each defendant. Brown alleges that Lin placed him on an unwarranted PIP after supervising him for only one month; was generally hostile toward him; attended the March 17, 2014 meeting with Matthew where he was asked how they were discriminating against him; and expressed her disappointment at that meeting that Brown could not be reprimanded based on credit reports that were not yet due. First Am. Compl. ¶¶ 28-30, 36-39. Brown avers that Mindick was rude and condescending toward him; treated him differently than his non-black coworkers; selectively enforced policies against him; implied that he was scared of Brown punching him based on Brown's race; was hostile toward and harassed him; placed him on an unwarranted PIP; undermined him at work by failing to provide him with proper support, lucrative accounts, adequate time to complete his assignments, and timely responses to emails, and so forth. Id. at ¶¶ 22-29. Brown claims that Matthew belittled and ridiculed him in a meeting about his new PIP; asked him in a follow-up meeting why he felt he was being discriminated against; criticized him for not completing assignments ahead of schedule; and ordered Lin to give him more work and revise his PIP. Id. at ¶¶ 35-39. Brown alleges that Badecki did not follow up on his April 7, 2014 email expressing concerns about Lin and Matthew's conduct; informed him that he was being suspended because of the investigation into his conduct at the April 10, 2014 meeting; drafted his suspension letter before meeting with him on April 15, 2014; accused him of trying to take TD Bank loan documents and insisted that he give her his bag; and did not investigate his March 11, 2014 discrimination complaint. Id. at ¶¶ 40, 50-57. 1. Count I: Hostile Work Environment, Racial Discrimination, Retaliation Brown alleges that all of the individual defendants, as part of TD Bank's management, subjected him to ongoing and pervasive harassment and hostility, treated him in a demeaning manner, gave him pretextual discipline, and personally participated in discriminatory and retaliatory harassment against him in the last ten months of his employment. First Am. Compl. ¶¶ 68-72. Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 7 of 10 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 We use the same analysis to assess the substantive merits of a hostile work environment claim under Section 1981 as we would in the Title VII context. See, e.g., Verdin v. Weeks Marine Inc., 124 F. App'x 92, 96 (3d Cir. 2005) (non-precedential) (noting that the statute of limitations was the only distinction between Section 1981 and Title VII with respect to a hostile work environment claim). To establish a hostile work environment, a plaintiff must show that (1) he suffered intentional race discrimination, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected him, (4) the discrimination would detrimentally affect a reasonable person of the same race in that position, and (5) there is respondeat superior liability. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (discussing these factors in the sex discrimination context); Woodard v. PHB Die Casting, 255 F. App'x 608, 609 (3d Cir. 2007) (non-precedential). The discriminatory conduct must be so extreme as to amount to a change in the terms or conditions of employment, and offhanded comments or isolated incidents, unless extremely serious, are insufficient to sustain a hostile work environment claim. Caver v. City of Trenton, 420 F.3d 243, 262-63 (3d Cir. 2005). We must look at the totality of the circumstances, including the frequency of the alleged conduct, its severity, whether it was physically threatening or humiliating, and whether it unreasonably interfered with the plaintiff's work performance. Id. *10 Brown has not pled sufficient factual matter, accepted as true, to demonstrate that any of the individual defendants intentionally infringed on his Section 1981 rights by causing TD Bank to infringe on his rights or by authorizing, directing, or participating in a hostile work environment. With respect to Lin, Brown only generally alleges that she participated in undermining conduct and mentions only two discrete instances of allegedly harassing conduct: placing him on a PIP and noting with disappointment that his credit reports were not yet due. As to Matthew, Brown alleges only that he belittled and ridiculed him in one meeting and asked him about his allegations of discrimination in another. Regarding Badecki, Brown only alleges that she did not investigate his claims of discrimination, informed him of his suspension, and accused him of taking loan documents. These allegations against Lin, Matthew, and Badecki do not plead the type of severe, extreme, or pervasive conduct that would suggest they are personally liable under Section 1981 for creating a hostile work environment. With respect to Mindick, the allegations are more detailed and indicate a longer duration of alleged undermining conduct, but those allegations also do not raise the inference that Mindick intentionally violated Brown's Section 1981 rights or caused TD Bank to do so. Mindick's individual conduct was not so extreme, severe, or pervasive as to ground individual liability against him for creating a hostile work environment. We will therefore dismiss Count I with respect to the individual defendants Lin, Matthew, Mindick, and Badecki, but without prejudice to refiling a second amended complaint. 2. Counts III and V: Wrongful Suspension And Termination Brown alleges that one month after notifying the defendants of his intent to file an EEOC charge, and one week after complaining to Badecki that Matthew and Lin were treating him with hostility, he was suspended for pretextual reasons. First Am. Compl. ¶ 82. Brown also alleges that the individual defendants “all personally participated in the retaliatory and discriminatory decision to” suspend him because of his race and complaints about race discrimination and retaliation. Id. at ¶ 84. Brown further alleges that his subsequent termination was pretextual and retaliatory and that the individual defendants “all personally participated in the retaliatory and discriminatory decision” to terminate him. Id. at ¶¶ 93, 95. Brown's first amended complaint contains sufficient factual matter, accepted as true, to support a reasonable inference that the individual defendants intentionally caused the alleged violation of Brown's rights under Section 1981 by participating in or otherwise directing his suspension and eventual termination. The individual defendants' alleged acts, taken in light of their supervisory authority, render plausible Brown's allegations that they caused TD Bank to wrongfully suspend or terminate him, especially given the temporal proximity between the alleged discrimination and retaliation and adverse employment actions. We will therefore deny the individual defendants' motion to dismiss Counts III and V. Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 8 of 10 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 9 C. Counts X and XI: Individual Liability Under Section 955(e) Of The PHRA Brown alleges in Counts X and XI that the defendants violated the PHRA by wrongfully suspending and terminating him. The individual defendants move to dismiss these counts, arguing that the first amended complaint fails to set forth allegations sufficient to demonstrate that they are individually liable under Section 955(e) of the PHRA for aiding, abetting, inciting, compelling, or coercing unlawful discriminatory practices. Partial MTD at 20. Brown responds that his factual allegations raise the plausible inference that the individual defendants are supervisory employees who engaged in discriminatory or retaliatory conduct against him. Pl.'s Resp. in Opp. at 29. Section 955(e) of the PHRA forbids “any person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice…” 43 Pa. Cons. Stat. § 955(e). Based on the theory that only supervisory employees can share the discriminatory purpose and intent of the employer, such supervisors can be held personally liable under an aiding and abetting theory for their own direct acts of discrimination or their failure to take action to prevent further discrimination. Holocheck v. Luzerne Cty. Head Start, Inc., 385 F. Supp. 2d 491, 496-97 (M.D. Pa. 2005); see also Dici v. Commonwealth of Pa., 91 F.3d 542, 552 (3d Cir. 1996) (explaining that individual employees can be held liable under the PHRA but not Title VII); Davis v. Levy, Angstreich, Finney, Baldante, Rubenstein & Coren P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa. 1998) (finding that plaintiff had adequately pled a Section 955(e) claim by averring that defendants were supervisors with whom she spoke about the firm's disability policies and who later terminated her). *11 In the procedural posture of a motion to dismiss, Brown's allegations regarding the individual defendants' supervisory roles, alleged discriminatory or retaliatory acts, and his eventual suspension and termination, suffice to raise the reasonable inference that the individual defendants Lin, Mindick, Mathew, and Badecki could be found plausibly liable under Section 955(e). We will therefore deny their motion to dismiss Counts X and XI. V. Conclusion Although we find that threatening to file, and then filing, a civil action may constitute an adverse employment action in light of Burlington Northern's definition of materially adverse and based upon a common sense approach to what might deter a reasonable employee, the Noerr-Pennington doctrine protects the defendants with respect to the civil action because we find the lawsuit was not objectively baseless in light of Brown's actions during and after his suspension and termination. We will therefore grant the defendants' motion to dismiss Counts VII, VIII, and XII of the first amended complaint with prejudice. We will grant the individual defendants' motion to dismiss Count I because the first amended complaint does not contain sufficient factual matter, accepted as true, to demonstrate the kind of severe and pervasive discriminatory conduct that would create a hostile work environment, but we dismiss Count I without prejudice to refiling a second amended complaint. We will deny the individual defendants' motion to dismiss Counts III, V, X, and XI because Brown's factual averments regarding the individual defendants' supervisory positions and their alleged discriminatory and retaliatory acts, combined with his eventual suspension and termination, permit the reasonable inference that they may have either caused, participated in, aided, or abetted TD Bank's decision to suspend and then terminate him. An appropriate Order follows. All Citations Slip Copy, 2016 WL 1298973 Footnotes 1 “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts…as is enjoyed by white citizens…” 42 U.S.C. § 1981(a). The term “make and enforce contracts” includes the “making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). The rights protected by Section 1981 “are protected against impairment by nongovernmental discrimination and impairment under color of State law.” 42 U.S.C. § 1981(c). Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 9 of 10 Brown v. TD Bank, N.A., Slip Copy (2016) 2016 WL 1298973 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 10 2 Initially, defendants also argued that Brown (4) had failed to exhaust his administrative remedies with respect to his claim that the civil action was retaliatory. Partial MTD at 13. But defendants withdrew this argument in their reply. See Defs.' Reply Br. at 7 n.2 (withdrawing the argument). 3 We may consider the civil action because Brown's claims are based on it, the defendants attached it as an exhibit to their partial motion to dismiss, and no party disputes its authenticity. Pension Benefits Guar. Corp., 998 F.2d at 1196. 4 Brown alleges that as he was clearing off his desk after Badecki informed him of his suspension, she accused him of trying to take loan documents. First Am. Compl. ¶¶ 52-54. Although Brown told Badecki that the papers he had placed in his bag were personal papers, she insisted that he give her his bag, but he refused. Id. at ¶ 55. After TD Bank fired Brown for, among other reasons, removing TD Bank documents from the workplace after his suspension, it asked him to sign an affidavit or certification preventing him from disseminating documents or information related to his work at TD Bank or contacting TD Bank's clients and customers. Id. at ¶¶ 63-64. Because TD Bank would not agree to Brown's amendments providing exceptions for his ongoing EEOC proceedings, Brown refused to sign. Id. at ¶¶ 65-66. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 4:17-cv-00237-MWB Document 7-2 Filed 06/06/17 Page 10 of 10 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 12479989 Only the Westlaw citation is currently available. United States District Court, N.D. Georgia, Newnan Division. Kelly Rodas, Plaintiff, v. Assurance Quality Group, Inc., et al., Defendants. CIVIL ACTION FILE NO. 3:13-cv-00077-TCB-RGV | Signed 11/07/2014 Attorneys and Law Firms Sadiqa Banks, The Banks Law Group, PC, Atlanta, GA, for Plaintiff. MAGISTRATE JUDGE'S NON-FINAL REPORT, RECOMMENDATION, AND ORDER RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE *1 On April 30, 2013, plaintiffs Samantha Lopez (“Lopez”) and Kelley Rodas (“Rodas”), collectively referred to as “plaintiffs,” initially filed this action against defendants Assurance Quality Group, Inc. (“Assurance”), Brent Schwartz (“Schwartz”), Stephen Whetstone (“Whetstone”), Express Employment Services, L.P. (“Express”), and Mobis Georgia, LLC (“Mobis”), alleging violations of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., the Pregnancy Discrimination Act of 1978 (“PDA”), 42 U.S.C. § 2000e(k), 1 and 42 U.S.C. § 1981 (“§ 1981”). [Doc. 1]. 2 Lopez, Express, and Mobis are no longer parties to this action. See [Doc. 75 (joint stipulation of dismissal with prejudice as to defendant Mobis); Doc. 77 (joint stipulation of dismissal without prejudice as to defendant Express); Docket Entries dated 01/14/2014, and 02/27/2014]. 3 Assurance, Schwartz, and Whetstone, collectively referred to hereinafter as “defendants,” now move for summary judgment, [Doc. 78], as to Rodas' claims against them. Rodas has filed a response in opposition to defendants' motion for summary judgment, [Docs. 82 & 87], to which defendants have replied, [Doc. 88]. 4 For the reasons stated herein, it is RECOMMENDED that defendants' motion for summary judgment, [Doc. 78], be GRANTED IN PART and DENIED IN PART. I. FACTUAL BACKGROUND A. Preliminary Matters *2 The facts, for summary judgment purposes only, are derived from defendants' statement of undisputed material facts, [Doc. 78-2], and Rodas' response to defendants' statement of undisputed material facts, [Doc. 83-1], as well as the other evidence of record. As required by Local Rule 56.1B, defendants have submitted a statement of undisputed material facts. [Doc. 78-2]. Although Rodas has filed a response to defendants' statement of facts, [Doc. 83-1], she has not filed a “statement of additional facts which [she] contends are material and present a genuine issue for trial” and which “meet the requirements set out in [Local Rule] 56.1 B. (1),” as required by Local Rule 56.1 B(2)b. See LR 56.1B(2)b, NDGa. Instead, Rodas sets forth various factual allegations in the section of her responsive brief entitled “Plaintiff's Statement of Material Facts[.]” [Doc. 87 at 1-7]. Because Rodas' statement of facts was not filed separately and does not otherwise conform to the Local Rules, see LR 56.1B(1), (2)b (requiring respondent to file a “separate statement of material facts” that includes a “separate, concise, numbered statement of the material facts to which the [respondent] contends there is no genuine issue to be tried”), the Court “is not permitted to consider such fact [s] in resolving [the] pending motion for summary judgment,” Robinson v. Fulton Cnty., Ga., Civil Action No. 1:05-CV-2250-RWS, 2008 WL 78711, at *6 (N.D. Ga. Jan. 4, 2008), adopted at *2; see also Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (noting that compliance with Local Rule 56.1 is the “only permissible way ... to establish a genuine issue of material fact” in response to the movant's assertion of undisputed facts); LR 56.1B(1), NDGa. (“The court will not consider any fact ... set out only in the brief and not in the [respondent's] statement of [ ] facts”). “Nor is the Court obligated to ‘scour the record’ to determine whether triable issues exist.” Maloch v. Pollard, Civil Action No. 2:09-CV- 00094-RWS-SSC, 2012 WL 780380, at *5 (N.D. Ga. Mar. 7, 2012) (quoting Tomasini v. Mt. Sinai Med. Ctr. of Fla., 315 F. Supp. 2d 1252, 1260 n.11 (S.D. Fla. 2004)). Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 1 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 The Court thus accepts as undisputed those facts which Rodas admits, see [Doc. 83-1 ¶¶ 1-5, 11-12, 14-17, 34, 37, 40, 49, 52, 63, 67, 69-70, 73-77, 79-81, 84-85], or has failed to properly dispute or deny, see, e.g., [id. ¶¶ 25, 50]. Rodas also objects to a number of defendants' statements on grounds that they are misleading, see [Doc. 83-1 ¶¶ 18-23, 27-31, 42, 44, 47, 68, 71-72, 82], not material, see [id. ¶¶ 7-10, 13, 35-36, 38-39, 45-46, 78], “illogical,” see [id. ¶ 26], and not relevant, see [id. ¶ 28]. Most of these objections are without merit, see, e.g., [id. ¶¶ 9-10 (objecting that defendants' statements about the number of Assurance employees is “not material to any issues in this case,” even though Rodas asserts claims under the FMLA, for which the number of employees is a dispositive, threshold issue in determining eligibility), ¶¶ 18, 20-21, 23, 28-31 (objecting to numerous statements as “misleading,” but without actually disputing their factual accuracy) ], and the Court excludes from consideration only those statements or portions of statements that are not supported by a citation to evidence in the record, as well as those facts which are not material to the issues presented in the pending motion, or which were stated as an issue or legal conclusion, see LR 56.1B(1)-(2), NDGa. Finally, the Court construes all facts in the light most favorable to Rodas, as is required when ruling on a motion for summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam). B. Statement of Facts Assurance provides quality control on a contractual basis for clients, including automotive parts suppliers, who use the services of Assurance to inspect their parts before they are shipped to production lines for installation. [Doc. 78-3 (Whetstone Aff.) at 3 ¶ 3]. One of Assurance's clients was Rehau Automotive Parts, LLC (“Rehau”). [Id. at 3 ¶ 4]. Rehau manufactured parts for Kia Motors (“Kia”), [Doc. 79 (Rodas Dep.) at 22; Doc. 83-3 (Rodas Aff.) at 4 ¶ 5], and then supplied those parts to Mobis of Alabama, LLC, [Doc. 78-3 at 3 ¶ 4; Doc. 83-7 (Lopez Dep.) at 111]. Rehau hired Assurance to inspect Rehau's Kia parts at Mobis' Georgia plant, 5 [Doc. 78-16 (Kim Decl.) at 3 ¶¶ 3-4; Doc. 79 at 110-11], after which the parts would be sent to Kia's assembly line in West Point, Georgia, [Doc. 78-3 at 3 ¶ 4; Doc. 79 at 109-10]. 6 Assurance had employees of its own and also hired contractors on a temporary basis. [Docs. 78-5 through 78-14 (Assurance Employment Records); Doc. 79 at 19-20; Doc. 83-7 at 38-39]. Some of these contractors were assigned to work at Assurance by Express, a staffing agency that contracted with Assurance to provide it with temporary workers for particular short- term projects. [Doc. 78-4 (Schwartz Aff.) at 3 ¶ 3; Doc. 83-7 at 39]. *3 Rodas registered with Express in December, 2010, and the following month she accepted a temporary position with Assurance as an inspector at the Mobis site in Georgia. [Doc. 78-4 at 4 ¶ 6; Doc. 79 at 17-20, 151]. Rodas' supervisors during this time were Schwartz, who was the co-owner and vice president of Assurance, and Curt Young (“Young”), an engineer employed by Rehau. [Doc. 78-3 at 5 ¶ 10; Doc. 79 at 27, 89; Doc. 79-9 (Young Statement); Doc. 83-7 at 151-52]. As an inspector, Rodas was charged with checking automotive parts for defects and also completing inventory reports and daily reports. [Doc. 79 at 21-22, 25-26, 30-33; Doc. 83-7 at 152-53]. The daily reports indicated the number of good parts and defective parts among those inspected each day, as well as a brief description of the problems with the defective parts. [Doc. 79 at 31]. Inspectors e-mailed their daily reports to Rehau, Mobis, Schwartz, and Whetstone, Assurance's president and co-owner. [Doc. 78-3 at 3 ¶ 2; Doc. 79 at 32]. The purpose of the reports was ultimately to prevent defective parts from reaching the Kia assembly line and to ensure that those defective parts which could not be repaired at Mobis would be replaced by Rehau. [Doc. 78-16 at 3 ¶ 5, 4 ¶ 6]. Sometime around March, 2011, Rodas accepted a position of employment with Assurance as an on-site manager at Mobis. [Doc. 78-4 at 4 ¶ 6; Doc. 79 at 30, 33-34]. In addition to her ongoing duties of inspecting parts and completing daily inventory reports, [Doc. 78-3 at 4 ¶ 8; Doc. 78-4 at 4 ¶ 6; Doc. 78-15 (Mack Aff.) at 2 ¶ 3; Doc. 79 at 43], Rodas' duties as manager included overseeing “the [Assurance] inspection process and supervis[ing] [Assurance] workers who[ ] ... inspect[ed] automotive parts manufactured by ... Rehau,” [Doc. 78-4 at 4 ¶ 6]; see also [Doc. 83-7 at 79]. Rodas was also responsible for training Assurance's workers and ensuring that they completed proper reports and inspections across three shifts, [Doc. 78-3 at 4 ¶ 8; Doc. 78-15 at 2 ¶ 3; Doc. 78-16 at 3 ¶ 5; Doc. 79 at 35-37], and for addressing problems encountered during inspection as needed, [Doc. 79 at 37-38 (Rodas would “go in and help out” if there was a “major problem” with the parts reported by Assurance's workers) ]. Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 2 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Rodas learned that she was pregnant around December, 2011, [Doc. 79 at 43, 152], and both Schwartz and Whetstone were aware of Rodas' pregnancy by March, 2012, [Doc. 78-3 at 5 ¶ 12; Doc. 78-4 at 6 ¶ 10; Doc. 79 at 43-44, 51]. When Rodas first told Schwartz that she was pregnant, [Doc. 78-4 at 6 ¶ 10], Schwartz said, “ ‘Congratulations,’ and he sounded happy and fine with it,” [Doc. 79 at 46]. Schwartz gave no indication that Rodas' pregnancy would have an effect on her job. [Id.]. When Whetstone learned of Rodas' pregnancy shortly after Schwartz, he approached Rodas and asked her “how things were doing with the pregnancy,” and Rodas said, “ ‘Fine.’ ” [Id. at 47; Doc. 78-3 at 5 ¶ 12]. Lopez, a temporary contractor who was under Rodas' supervision and who was assigned to Assurance by Express in January of 2012, [Doc. 79 at 49-52; Doc. 83-7 at 26, 40, 44, 52-53, 113], was also visibly pregnant at this time, [Doc. 79 at 154-55 (Lopez was around her second trimester and her pregnancy was “noticeable”); Doc. 83-7 at 47-48, 121]; see also [Doc. 78-15 at 3 ¶ 8 (“It was well known that [ ] Lopez was pregnant when she was hired.”); Doc. 79 at 50-51 (Lopez was “obviously pregnant” when she began working at Mobis in January, 2012) ]. K.D. Kim (“Kim”), a quality control manager employed by Mobis, [Doc. 78-16 at 3 ¶ 3; Doc. 79 at 28, 48; Doc. 83-7 at 117], was also aware of both Lopez and Rodas' pregnancies by March, 2012, [Doc. 78-15 at 3 ¶ 8; Doc. 79 at 50-53, 154-55; Doc. 83-7 at 47-48, 121]. Kim was primarily responsible for ensuring that the automotive parts at Mobis passed inspection and were ready for assembly at Kia. [Doc. 78-16 at 3 ¶ 3]. Kim also “worked personally with [ ] Rodas on a daily basis,” [id.], and “supervise[d] [Rodas'] work performance,” [Doc. 79 at 51-52]. Around May or June of 2012, Kim offered both Rodas and Lopez a position of employment with Mobis' quality department. [Id. at 54, 120, 136]. 7 However, by June, 2012, Kim also began asking Rodas and Lopez why they were still working and when they would take maternity leave, see [id. at 53 (Kim “kept asking [Rodas] and [Lopez]” when they were “going out ... to take care of the baby[.]”); Doc. 83-7 at 60, 119-20, (After telling Rodas and Lopez what a “good job” they were doing, Kim said “after y'all have the babies, y'all should come and work here.”) ], and advising them that they “should be at home” and should “not be working there in [their] condition,” [Doc. 83-7 at 57-58]. Rodas never complained to Whetstone that Assurance failed to accommodate her pregnancy, and Rodas' pregnancy did not appear to affect her ability to do her job. [Doc. 78-3 at 6 ¶ 12]. *4 On June 18, 2012, Whetstone called Rodas on the telephone at her office at Mobis and informed her he was ending Lopez's assignment with Assurance. [Doc. 79 at 165-67; Doc. 83-3 at 7 ¶ 12]. 8 Whetstone told Rodas that Lopez had to be “let [ ] go because [Kim] did not want [any] more pregnant people there,” since “it was a liability inside of Mobis[.]” [Doc. 79 at 48-49, 165, 167; Doc. 83-7 at 75-76, 170-71]; see also [Doc. 83-3 at 7 ¶ 12]. Rodas asked Whetstone if Lopez could work for the remainder of the day, but Whetstone said, “ ‘No.... [T]ell her to go now. They don't want her here.’ ” [Doc. 79 at 165; Doc. 83-7 at 76, 170-71]. Whetstone then instructed Rodas to “call Express and tell them that there was no more work and that [Lopez] was eligible for rehire.” [Doc. 83-3 at 7 ¶ 12]. He also told Rodas during this conversation that “a couple of months later they're going to have to make [Rodas] go on maternity leave,” [Doc. 79 at 50], and that she would be replaced by another employee during her absence, [id. at 48-50, 71, 166; Doc. 83-3 at 7 ¶¶ 12-13; Doc. 83-7 at 77]. Rodas asked if she could continue to work “in the office or on the floor,” 9 and Whetstone replied, “ ‘No, you'll be fine. We'll take care of you.’ ” [Doc. 79 at 166]; see also [Doc. 83-7 at 77]. Lopez, who had been sitting nearby Rodas when Whetstone called, overheard the entire conversation between Whetstone and Rodas. [Doc. 79 at 166-69, 182, 201; Doc. 83-7 at 135-36]. 10 After Rodas hung up the phone, [Doc. 83-7 at 77, 168], Lopez told Rodas, “ ‘I know they fired me because I'm pregnant, and that's a lawsuit,’ ” [Doc. 79 at 170]; see also [Doc. 83-7 at 80-81]. Rodas neither agreed nor disagreed with Lopez's statement, but “just looked at [her],” [Doc. 83-7 at 80-81], and said, “ ‘Your job is ended. You can't work the rest of the day,’ ” [Doc. 79 at 169]. At that point, Rodas walked Lopez to an exit where Lopez left the building. [Id. at 176-78]. As Lopez was leaving, she told Young that her assignment had just ended because she was pregnant, and mentioned something about a “lawsuit.” [Doc. 83-7 at 81, 171]; see also [Doc. 79 at 177-78 (Lopez told Young, “ ‘For firing a pregnant person, that is a lawsuit on the company,’ and she [ ] walked out the door.”) ]. Rodas spoke with Whetstone on the phone again about half an hour later, and she told him what Lopez had said to her and to Young, to which Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 3 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Whetstone replied, “Just make sure that she leaves.... We don't need any lawsuit on us.” [Doc. 79 at 179]. 11 Rodas also testified that sometime in June, 2012, Kim approached her at Mobis and told her that he did not “ ‘like [her] performance anymore.’ ” [Id. at 62-63]; see also [id. at 52-53, 142-43]. Rodas responded by asking, “ ‘Is it because I'm pregnant? Because you haven't had a problem since then all year.’ ” [Id. at 143]; see also [id. at 52-53, 63-64]. According to Rodas, Kim “got mad” and “screamed” at Rodas, saying, “ ‘Just get out of here before I get security.’ ” [Id. at 52, 63-64, 143]. Rodas then called Whetstone to relate what Kim had said to her, and Whetstone replied that he would “find out what was going on.” [Id. at 202]; see also [id. at 143]. Rodas attested that this encounter with Kim was the only time Kim had ever criticized her work performance. [Id. at 92-95]. 12 *5 Later that same day, Whetstone called Rodas and told her that he was moving Assurance's workers from Mobis to work at another warehouse that was located across the street. [Id. at 52, 64-65, 204-05]. The warehouse was under construction and had no air conditioning or running water or restrooms. [Id. at 64-66]. Rodas testified that she did not know why she and the other Assurance workers at Mobis, none of whom were pregnant, were moved to the warehouse to continue their inspections. [Id. at 66, 87-88]. No one told Rodas that she was being transferred to the warehouse because she was pregnant, [id. at 120], and while Rodas testified to her belief that the relocation was an act of discrimination against all of the Assurance workers who were placed there, [id. at 87-88], she did not communicate that belief to Whetstone, [Id. at 206]. 13 In July, 2012, Whetstone e-mailed Rodas with instructions on how to implement certain “long term countermeasures” to address the “problem” of “[d]ropped containment,” or “[p]arts missed for rework” at inspection. [Doc. 79-6]. Several specific countermeasures were identified in the e-mail, and Whetstone also advised Rodas to “[m]ake sure we are doing all these things on all shifts,” and specifically to “make sure we are containing all parts from getting through[.]” [Id.]. It was further noted that “[m]anagement [would] be auditing workers on all open jobs,” and that Rodas would be responsible for “re-training all [Assurance] employees at [Mobis.]” [Id.]. Rodas explained at her deposition that Whetstone sent her this e-mail to ensure that the new corrective procedures would be followed “going forward[.]” [Doc. 79 at 76-77]. From the end of 2011 until Rodas went on maternity leave in July, 2012, Assurance received numerous complaints related to Rodas' work performance. First, around November, 2011, Mobis began complaining to Assurance “that their parts were not being inspected properly.” [Doc. 78-4 at 5 ¶ 7]. Schwartz avers that when he brought these complaints to Rodas' attention, Rodas “became upset” and said “she had been having personal issues,” adding that “none of the other [Assurance] workers respected or listened to her,” and that the “issues Mobis complained of were caused by other workers.” [Id.]. After Schwartz discussed the situation with Whetstone, the two of them decided that, since Rodas was an Assurance employee and manager, they would “support [Rodas]” and “replace the [temporary] workers under her supervision at Mobis.” [Id. at 5 ¶ 8]. A few days later, Schwartz was informed by Express that the temporary workers who had been removed had complained that Rodas “had anger issues and would yell at them without cause or explanation.” [Id.]. Schwartz “took note” of these additional complaints and “spent the next few weeks helping [ ] Rodas train her new team.” [Id.]. Schwartz left the management of the Mobis site to Rodas once he was “satisfied the new team was properly trained,” but just “[a] few months later,” Assurance again began receiving complaints, this time from both Mobis and Rehau, that Assurance employees were not properly performing their jobs. [Id. at 5 ¶ 8, 6 ¶ 9]. Rodas subsequently “admitted to [Schwartz] that she had been threatening to fire [Assurance] workers without cause,” and Schwartz “instructed her that as a manager, this was causing loss of morale,” and that Rodas needed to “maintain an even temper in carrying out her duties.” [Id. at 6 ¶ 9]. On April 19, 2012, a temporary Assurance inspector by the name of Annabelle Sturkie (“Sturkie”), 14 sent an e-mail to Schwartz and Whetstone, entitled “Issues with [Rodas],” in which Sturkie complained about Rodas' perceived lack of knowledge and professionalism in the workplace: *6 This morning we were having issues with [certain] parts we ask for [Rodas] to come check the parts we Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 4 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 thought were bad and she refused. We also told her that the template we had to measure the parts was not accurate and ask if we could get a ruler or something that would give us a more accurate measurement to be sure of the defect and she said she doesn't get paid back for buying stuff for [Assurance] and she wasn't going to buy anything we just had to deal with what we got ... I got a message to call [Rodas] then and when she answered she cursed me saying that everybody ... was “pist” and it was all because I was “f@#$ing” stupid if I had listened to her to start with none of this would have happened.... I do not feel like she was doing her job appropriately and the entire issue would have been avoided if she had simply cooperated with us. This has been an ongoing issue with her since I began working with [Assurance] and her attitude and ill mannered behavior has been progressively getting worse. [Rodas] has very little knowledge of the standards for the parts we inspect and any time an issue comes that she doesn't know how to resolve she gets defensive and irritated rather than handling it professionally. [Doc. 79-2]. The following month, Kim and Young specifically complained to Schwartz “about [Rodas'] job performance,” saying that Rodas' “inventory and daily reports contained multiple errors,” and that Rodas “was allowing defective parts onto the Kia assembly line,” which resulted in “stoppages to the line,” for which Kia charged Mobis at a rate of approximately $700.00 per minute. 15 [Doc. 78-4 at 6 ¶ 11, 7 ¶ 12]; see also [Doc. 78-3 at 6 ¶ 3; Doc. 78-16 at 4 ¶¶ 7-8 (Kim noticed that Rodas was submitting inaccurate reports “on a daily basis,” as a result of which a “high number of faulty parts were reaching the assembly line,” forcing Kia to shut down the line “frequently” and to issue “charge-backs” to Mobis in the amount of $700.00 per minute); Doc. 79 at 61-62 (Rodas testifying that “down time,” or a temporary shut- down of the line, occurred when bad parts reached Kia's assembly line), 121-22 (Rodas confirming that, during the time she worked for Assurance, there were “probably” some “charge-backs” from Kia to Mobis for defective parts reaching Kia's line) ]. Consequently, Kim brought in a third-party inspector by the name of P-Land to oversee the inspection process, and it appears that Rehau had to pay for P-Land's services. See [Doc. 78-3 at 7 ¶ 15; Doc. 78-4 at 7 ¶ 13; Doc. 79-9]. 16 *7 Based on this information, both Whetstone and Schwartz “concluded that [Assurance's] business relationship with [Rehau] was being placed in jeopardy as a result of [ ] Rodas' defective reports and her overall inability to manage the Mobis site.” [Doc. 78-3 at 7 ¶ 16]; see also [Doc. 78-4 at 7 ¶ 14]. Because Rodas had been employed by Assurance for nearly a year and a half at that point, Schwartz and Whetstone tried to “work with [Rodas] to rectify the situation for several weeks,” although they ultimately decided that Rodas would have to be removed from the Mobis worksite due to her “inadequate job performance,” [Doc. 78-3 at 7 ¶ 17], “and the fact that Mobis and Rehau no longer trusted her ability to carry out her duties,” [Doc. 78-4 at 7 ¶ 15]; see also [Doc. 78-3 at 8 ¶ 20 (Whetstone affirming that, in deciding to remove Rodas from Mobis, he still “desired to retain [her] as an employee because of the time and expense [Assurance] had invested in training her”) ]. In June, 2012, Young also “started receiving complaints from Mobis about [ ] Rodas.” [Doc. 79-9]. In particular, Mobis' management complained to Young that “Rodas' performance had declined” and that she “had become somewhat confrontational.” [Id.]. Mobis further related that it “questioned [Rodas'] integrity to perform her duties,” and that it had “lost confidence in [ ] Rodas due to the fact that [Mobis] believed [Rodas] was trying to hide documentation from [it],” explaining that Rodas was “not reporting accurate numbers for defective products that Mobis had previously paid for but [was] unable to use or track.” [Id.]. In the beginning of July, Young was also “asked by Mobis to implement an action plan, along with [Assurance] ... and monitored by P-Land, to improve the level of on-site service from [Assurance], starting with the evaluation and improvement of their leaders and crew.” [Id.]. Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 5 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 Additionally, Sharon Mack (“Mack”), an Assurance employee whom Rodas supervised and whose job included inspecting automotive parts from Rehau, 17 attests that Rodas “often did not come in for work, did not properly file her daily reports and inventories, and had difficulty getting along with other employees as well as with the Mobis employees who were on-site or close-by.” [Doc. 78-15 at 2 ¶ 4]. Rodas testified that she was never made aware of any complaints about her work performance at any time during her employment with Assurance. See [Doc. 79 at 54, 56-57, 85, 91-92]; see also [Doc. 83-3 at 3 ¶ 3, 5 ¶ 8 (alleging that “no [one] ever told [her] that [she] was not doing [her] job,” and denying ever having “any issues with [her] performance”) ]. Whetstone removed Rodas from the Mobis site on July 19, 2012. See [Doc. 79 at 68-69]; see also [Doc. 78-3 at 7 ¶ 18; Doc. 78-4 at 8 ¶ 16]. Whetstone attests that he “informed [ ] Rodas [he] was removing her from the Mobis site because of her inadequate job performance.... [and] because of the problems she had caused at Mobis.” [Doc. 78-3 at 7 ¶ 18]. Whetstone further states that, since he was already aware that Rodas was due to give birth in “a matter of weeks,” and since Rodas “had already informed [Assurance] she would need to take leave,” he also instructed Rodas to go on maternity leave at that point and to contact Assurance after she gave birth, to be reassigned to another job site. 18 [Id. at 8 ¶ 19]; see also [Doc. 78-4 at 6 ¶ 10 (Schwartz confirming that, sometime after Rodas informed him of her pregnancy, “she did state to [him] ... that she would need to take time off in order to give birth”); Doc. 78-15 at 2 ¶ 6 (Mack stating that, “[w]hen [ ] Rodas left work in July, she told [Mack] that she was taking maternity leave early,” and that “[Assurance's] owners wanted to place her, when she returned to work, in a different location because of the bad relationship that she had with the Mobis employees”) ]. He cautioned Rodas, however, that Assurance would no longer “tolerate any mistakes or underperformance at her next assignment.” [Doc. 78-3 at 8 ¶ 19]. *8 Rodas denies that Whetstone put her on leave because he was removing her from Mobis due to performance problems, instead testifying that Whetstone simply told her that she “needed to go on maternity leave” because “[i]t [was] just getting too far,” and that she should “[j]ust go on out and [Assurance would] take care of [her].” [Doc. 79 at 68-69]. Rodas also testified that she never asked to go on maternity leave, [id. at 68, 72], but intended to “stay and work as long as she could.... [u]ntil the day [she] gave birth,” [id. at 71]; see also [id. at 67-68 (testifying that she had “a doctor's note that [she] could do light duty,” and that she told Assurance that she “could stay in the office,” but that Assurance would not let her, and instead “ma[de] [her] go on maternity leave”); 72, 99-100 (stating that she had “no intention” of taking FMLA leave) ]. 19 In any event, Rodas stopped reporting for work on July 19, 2012. [Id. at 69]. 20 Once Rodas had been removed from the Mobis site, Assurance “dedicated the next several weeks to reestablishing the integrity of its inspection process and was successful in doing so.” [Doc. 78-3 at 8 ¶ 21]; see also [Doc. 78-4 at 8 ¶ 17 (Schwartz “personally dedicated the next several weeks to reestablishing the integrity of [Assurance's] inspection process,” and “[w]ith Rodas absent from the Mobis site, [he] was able to do so.”); Doc. 78-16 at 6 ¶ 14 (“[D]ue to the fact that [ ] Rodas had been removed from the Mobis work site, [Assurance] was able to effectively inspect the Rehau parts and provide accurate daily reports and inventory reports.”) ]. After Rodas gave birth on August 15, 2012, [Doc. 79 at 69], she called Whetstone and told him that she was “going to ... the doctor in a couple of weeks [to] find out when [she] could go back [to work],” to which Whetstone replied, “Okay, just let me know,” [id. at 98]. According to Rodas, she later called Whetstone back “numerous times ... and left voice mails,” [id. at 207], but Whetstone “never answered” the phone, [id. at 98]. When Rodas eventually managed to reach Whetstone by phone, Whetstone told her that her employment with Assurance had been terminated. [Id. at 207 (“[Rodas], we terminated you.”) ]; see also [Doc. 83-3 at 8 ¶ 15]. Rodas responded, “ ‘You were supposed to hold my job when I went out. You put me on maternity leave. That's a lawsuit.’ ” [Doc. 79 at 207-08]. Whetstone then allegedly hung up the phone and the two did not speak again. [Id. at 207; Doc. 83-3 at 8 ¶ 15]. Whetstone and Schwartz both attest that they “arranged an in-person meeting with [ ] Rodas to discuss her next job assignment” sometime around September, 2012, and that Rodas failed to show or to respond to their attempts to contact her via text message and telephone, [Doc. 78-3 at 8 ¶ 22; Doc. 78-4 at 8 ¶ 18], but Rodas testified that she was not aware of any such meeting, [Doc. 79 at 98]. 21 Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 6 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 II. SUMMARY JUDGMENT STANDARD *9 In deciding a motion for summary judgment, the Court views all evidence in the light most favorable to and draws all reasonable inferences in the favor of the non-moving party. Gray v. City of Jacksonville, Fla., 492 Fed.Appx. 1, 3 (11th Cir. 2012) (per curiam) (unpublished) (citations omitted). “Summary judgment shall be granted if the movant shows that there is ‘no genuine issue as to any material fact’, such that the movant is entitled to judgment as a matter of law.” Jerome v. Barcelo Crestline, Inc., 507 Fed.Appx. 861, 863 (11th Cir. 2013) (per curiam) (unpublished) (quoting Fed. R. Civ. P. 56(a)); see also Holmes v. Ga. ex rel. Strickland, 503 Fed.Appx. 870, 872-73 (11th Cir. 2013) (per curiam) (unpublished) (citations omitted); Young v. FedEx Express, 432 Fed.Appx. 915, 916 (11th Cir. 2011) (per curiam) (unpublished) (citation omitted). The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material facts, upon which the non-moving party must then submit specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Premier Assocs., Inc. v. EXL Polymers, Inc., No. 1:08-cv-3490-WSD, 2010 WL 2838497, at *8 (N.D. Ga. July 19, 2010), aff'd in part 507 Fed.Appx. 831 (11th Cir. 2013) (unpublished) (citations omitted). “[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation[s] or denials of [her] pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Jackson v. B & L Disposal, Inc., 425 Fed.Appx. 819, 820 (11th Cir. 2011) (per curiam) (unpublished) (alteration in original) (citation and internal marks omitted); see also Shuler v. Ingram & Assocs., 441 Fed.Appx. 712, 715 (11th Cir. 2011) (per curiam) (unpublished) (citation and internal marks omitted); Bryant v. U.S. Steel Corp., 428 Fed.Appx. 895, 897 (11th Cir. 2011) (per curiam) (unpublished) (citation omitted). “Speculation or conjecture cannot create a genuine issue of material fact.” Shuler, 441 Fed.Appx. at 715 (citation omitted); see also Howard v. Or. Television, Inc., 276 Fed.Appx. 940, 941 (11th Cir. 2008) (per curiam) (unpublished) (citation omitted); Goodman v. Ga. Sw., 147 Fed.Appx. 888, 891 (11th Cir. 2005) (per curiam) (unpublished) (citation and internal marks omitted) (“All reasonable inferences arising from the undisputed facts should be made in favor of the nonmovant, but an inference based on speculation and conjecture is not reasonable.”). “Moreover, the non-moving party cannot create a genuine issue through evidence that is ‘merely colorable’ or ‘not significantly probative.’ ” Morales v. Ga. Dep't of Human Res., 446 Fed.Appx. 179, 181 (11th Cir. 2011) (per curiam) (unpublished) (citation omitted). In addition, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment,” Anyanwu v. Brumos Motor Cars, Inc., 496 Fed.Appx. 943, 945-46 (11th Cir. 2012) (per curiam) (unpublished) (citation and internal marks omitted), and “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, summary judgment for the moving party is proper,” Premier Assocs., Inc., 2010 WL 2838497, at *9 (alteration in original) (citation and internal marks omitted). III. DISCUSSION Rodas asserts claims of interference and retaliation under the FMLA, see [Doc. 1 at 13-18], as well as claims of retaliation and employment discrimination based on pregnancy in violation of Title VII, see [id. at 19-21]. The Court will consider each of Rodas' claims and the parties' arguments in turn. 22 A. FMLA Claims *10 Defendants argue that they are entitled to summary judgment on Rodas' FMLA claims because Assurance was not a covered employer under the FMLA at any time relevant to this action. See [Doc. 78-1 at 10-11]. Rodas contends that the doctrine of federal equitable estoppel bars defendants from asserting that Assurance was not a covered employer under the FMLA because defendants misrepresented to Rodas that she was eligible for FMLA leave. See [Doc. 87 at 8-19; Doc. 90-2 at 7-10]. Defendants counter that the Eleventh Circuit has never adopted the doctrine of equitable estoppel in the context of the FMLA, and that even if the Court were to apply the doctrine here, Rodas' FMLA claims would still fail because she has not satisfied the elements of equitable estoppel. See [Doc. 88 at 3-8]. “The FMLA requires some employers to provide an ‘eligible employee’ up to twelve weeks of unpaid, job- Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 7 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 protected leave for, among other events, ‘a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ ” Green v. RJ Behar & Co., No. 09-62044-CIV, 2010 WL 1796570, at *3 (S.D. Fla. May 4, 2010) (quoting 29 U.S.C. § 2612(a)(1)(D)); see also Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724 (2003). “Following a period of FMLA leave, an employee has the right to be restored to h[er] original position or ‘to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.’ ” Downs v. Mr. Burch Formal Wear, Inc., No. 2:13-cv-365-JHH, 2014 WL 4264849, at *6 (N.D. Ala. Aug. 27, 2014) (quoting 29 U.S.C. § 2614(a)(1)). To protect these rights, “the FMLA creates two types of claims: interference claims, in which an employee asserts that h[er] employer denied or otherwise interfered with h[er] substantive rights under the Act, and retaliation claims, in which an employee asserts that h[er] employer discriminated against h[er] because [s]he engaged in activity protected by the Act.” Moore v. Sears Roebuck & Co., No. 3:06cv255-RV/MD, 2007 WL 1950405, at *4 (N.D. Fla. July 2, 2007) (citing Strickland v. Water Works & Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001)). “To state an FMLA interference claim, ‘an employee need only demonstrate by a preponderance of the evidence that [s]he was entitled to the benefit denied.’ ” Id. (citation omitted). To state a retaliation claim, “ ‘an employee must demonstrate that h[er] employer intentionally discriminated against h[er] in the form of an adverse employment action for having exercised an FMLA right.’ ” Id. (citation omitted). 23 However, “the issue of FMLA eligibility is a threshold question in FMLA suits,” id. (internal marks omitted) (citing Morgan v. Neiman-Marcus Grp., Inc./Neiman-Marcus Direct, No. Civ.A. 305CV0079G, 2005 WL 3500314, at *4 (N.D. Tex. Dec. 20, 2005)), since “only eligible employees may bring suit under the FMLA,” Hegre v. Alberto-Culver USA, Inc., 485 F. Supp. 2d 1367, 1376 n.6 (S.D. Ga. 2007) (citing Morrison, 336 F. Supp. 2d at 1196), and “[n]ot all employees are eligible to take [FMLA] leave,” Moore, 2007 WL 1950405, at *4 (citation omitted). For instance, “[a]n ‘eligible employee’ does not include ‘any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.’ ” Green, 2010 WL 1796570, at *3 (quoting 29 U.S.C. § 2611(2)(B)(ii)). Rather, to be eligible, an employee must work for a “covered employer” within the meaning of the FMLA, which defines “employer as “ ‘any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.’ ” Id. (quoting 29 U.S.C. § 2611(4)(A)(I)). Thus, “[i]n order to recover under the FMLA, [Rodas] must demonstrate that her employer hired at least 50 employees at, or within a 75-mile radius of, [Rodas'] worksite.” Green, 2010 WL 1796570, at *3 (internal marks omitted) (quoting Paleologos v. Rehab Consultants, Inc., 990 F. Supp. 1460, 1468 (N.D. Ga. 1998)). *11 The evidence in this case conclusively demonstrates that defendants were not a “covered employer” under the FMLA because they did not employ at least 50 employees within a 75 mile radius of Rodas' worksite for each of 20 calendar workweeks in 2012, which was the year that Rodas went on leave, or the preceding year of 2011. See [Doc. 78-4 at 4 ¶ 5; Docs. 78-5 through 78-14]. For calendar year 2012, “[Assurance] employed 37 full or part- time workers who worked at [Assurance] for at least 20 weeks,” and in 2011, “[Assurance] employed for at least 20 weeks 18 permanent workers and engaged [8] temporary workers.” [Doc. 78-4 at 4 ¶ 5 (citations omitted) ]. Rodas objects to these facts on the basis that they are “not material to any issue in this case,” [Doc. 83-1 ¶¶ 9-10], but the number of Assurance's employees in 2011 and 2012 is obviously material to determining the “threshold question” of FMLA eligibility, see Moore, 2007 WL 1950405, at *4 (citation omitted). Only eligible employees may bring suit under the FMLA, and employees who do not work for a covered employer are not eligible. See 29 U.S.C. § 2611(2)(B)(ii), (4)(A)(I). Consequently, Rodas' failure to establish that she was an eligible employee working for a covered employer is fatal to each of her claims under the FMLA. See Miller v. M.D. Sci. Labs, LLC, No. 10-60956-CIV, 2010 WL 4968185, at *3 (S.D. Fla. Nov. 24, 2010) (dismissing FMLA claims where plaintiff failed to establish that defendants employed 50 employees and therefore “qualif[ied] as ‘covered employers[ ]’); Green, 2010 WL 1796570, at *3 (granting defendant's motion for summary judgment on plaintiff's FMLA claim where plaintiff failed to show that defendant was a covered employer subject to the FMLA). Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 8 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 9 Rodas' interference claim fails because, being ineligible for FMLA benefits, she was not entitled to whatever FMLA benefits she was allegedly denied. See Moore, 2007 WL 1950405, at *5 (citations omitted) (citing O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353- 54 (11th Cir. 2000)) (“An interference claim presupposes that the complaining employee was ‘entitled to the benefit denied.’ ”); see also Walker v. Elmore Cnty. Bd. of Educ., 223 F. Supp. 2d 1255, 1253 (M.D. Ala. 2002), aff'd 379 F.3d 1249 (11th Cir. 2004) (alteration and emphasis in original) (citing 29 U.S.C. §§ 2612, 2615(a)(1)) (“The FMLA makes it unlawful for an employer to interfere with the attempt ‘to exercise[ ] any right provided under this subchapter,’ and the right to leave is provided only to eligible employees.”). Indeed, an “ineligible employee may not bring an interference claim because the FMLA ‘does not provide a private right of action for any employee, only for [an] ‘eligible employee[ ],’ ” Hegre, 485 F. Supp. 2d at 1376 n.6 (quoting Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 724 (2d Cir. 2001)); see also Moore, 2007 WL 1950405, at *5 (collecting cases) (“It is well-settled within and outside the Eleventh Circuit that an interference claim cannot be sustained if the employee was not eligible for leave under the FMLA in the first place.”), which Rodas was not. Since Rodas has failed to establish that she was entitled to any benefits under the FMLA, her FMLA interference claim fails as a matter of law. See Moore, 2007 WL 1950405, at *5 (FMLA interference claim “easily disposed of” where plaintiff failed to establish that she was eligible for FMLA leave); Morrison, 336 F. Supp. 2d at 1196 (explaining that only eligible employees may file interference claim under the FMLA); Morehardt v. Spirit Airlines, Inc., 174 F. Supp. 2d 1272, 1278 (M.D. Fla. 2001) (FMLA interference claim “disposed of easily” on summary judgment because it was undisputed that “[p]laintiff [was] an ineligible employee under the FMLA”). 24 *12 Rodas' FMLA retaliation claim also fails because, as an ineligible employee, she never exercised or attempted to exercise any rights under the FMLA, and therefore never engaged in protected activity. “[I]n order to state a prima facie claim for retaliation under the FMLA the plaintiff must establish that the conduct [s]he has engaged in-which is the precipitating cause for the retaliation or termination of employment-be a protected activity, which means that the leave [s]he has taken ... must be leave that [s]he is eligible for and is entitled to take under the Act.” Morehardt, 174 F. Supp. 2d at 1281; see also Walker, 379 F.3d at 1253 (“[T]he statute does not protect an attempt to exercise a right that is not provided by FMLA, i.e., the right to leave before one becomes eligible therefor.”); Coleman v. Prudential Relocation, 975 F. Supp. 234, 245 (W.D.N.Y. 1997) (noting that, “by the terms of the statute, only an ‘eligible employee’ can engage in protected activity”). But where, as here, “the employee takes leave ... that [s]he is not eligible for ..., the employee cannot be deemed to have engaged in protected activity and, therefore, termination by the employer in such a circumstance cannot be grounds to support a retaliation claim under the FMLA.” Morehardt, 174 F. Supp. 2d at 1281. Accordingly, Rodas “cannot assert an FMLA retaliation claim [because] she was not eligible for FMLA leave at the time she [went on leave.]” Moore, 2007 WL 1950405, at *6 (internal marks omitted) (quoting Burnett v. Sw. Bell Tel., L.P., 471 F. Supp. 2d 1121, 1134 n.21 (D. Kan. 2007)); see also Walker, 379 F.3d at 1252-53 (affirming summary judgment on FMLA retaliation claim where evidence showed that plaintiff “was not an eligible employee”); Moore, 2007 WL 1950405, at *6 (internal marks omitted) (quoting Carpenter v. Permanente, No. 1:04 cv 1689, 2006 WL 2794787, at * 17 (N.D. Ohio Sept. 27, 2006)) (“[S]ubstantial case law support[s] [ ] the general argument that an employee who is ‘ineligible’ for FMLA leave does not engage in statutorily protected activity and, therefore, does not have a basis for asserting an FMLA retaliation claim[.]”). 25 In her revised brief in opposition to defendants' motion for summary judgment, Rodas does not dispute that Assurance was not a covered employer under the FMLA, 26 but instead argues that the doctrine of equitable estoppel should be applied to preclude defendants from raising this fact in their defense. See [Doc. 87 at 11-19]; see also [Doc. 90-2 at 7-10]. The Eleventh Circuit, however, has never adopted the doctrine of equitable estoppel in the FMLA context. Gonzales v. Pasco Cnty. Bd. of Cnty. Comm'rs, No. 8:11-cv-1397- T-30TGW, 2013 WL 179948, at *6 n.3 (M.D. Fla. Jan. 17, 2013) (citation omitted). See also Dawkins v. Fulton Cnty. Gov't, 733 F.3d 1084, 1089-91 (11th Cir. 2013) (per curiam) (quoting O'Melveny & Myers v. FDIC, 512 U.S. 79, 87 (1994)) (declining to decide whether federal equitable estoppel applies to the FMLA and noting that “[t]he times when [the court] should create new federal common law are ‘few and restricted’ ”); Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1266 (11th Cir. 2008) (per curiam) (footnote omitted) (citing Busby Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 9 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 10 v. JRHBW Realty, Inc., 513 F.3d 1314, 1326 (11th Cir. 2008)) (declining to adopt estoppel doctrine in the FMLA context); Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 797 n.4 (11th Cir. 2000) (citation omitted) (affirming summary judgment against plaintiff's FMLA claims and “declin[ing] to speculate about what the result might be” under a theory of equitable estoppel). And “absent guidance from the Eleventh Circuit, courts within this circuit have declined to apply equitable estoppel in FMLA cases [.]” Moore, 2007 WL 1950405, at *9 (footnote omitted) (citing Caputo-Conyers v. Berkshire Realty Holdings, LP, No. 6:05CV341ORL31KRS, 2005 WL 1862697, at *5-6 n. 15-16 (M.D. Fla. Aug. 2, 2005)). 27 *13 Moreover, even if the doctrine of equitable estoppel does apply to the FMLA, Rodas' FMLA claims fail nonetheless because she has not met the elements of equitable estoppel. To invoke the doctrine of equitable estoppel in the Eleventh Circuit, “a party must prove that: ‘(1) the party to be estopped misrepresented material facts; (2) the party to be estopped was aware of the true facts; (3) the party to be estopped intended that the misrepresentation be acted on or had reason to believe the party asserting the estoppel would rely on it; (4) the party asserting the estoppel did not know, nor should it have known, the true facts; and (5) the party asserting the estoppel reasonably and detrimentally relied on the misrepresentation.’ ” Martin, 543 F.3d at 1266 n.2 (quoting Busby, 513 F.3d at 1326). In this case, Rodas has failed to present any evidence that defendants were “aware of the true facts,” namely, that Rodas was not eligible to take FMLA leave because she did not work for a covered employer under the FMLA. Instead, Rodas appears to argue that defendants should be charged with constructive knowledge of the “true facts” because they had access to Assurance's employment records and were therefore in the “best position” to determine questions of FMLA eligibility. See [Doc. 87 at 14 & n.9 (arguing that defendants “knew or had reason to know whether [Assurance] was a covered employer” because they “maintained employment policies and records as to each employee”) ]. Yet Rodas has not cited any authority in this circuit suggesting even that equitable estoppel applies in the context of the FMLA, much less that, if it does apply, it may also be proved by a theory of constructive knowledge. In the Eleventh Circuit, equitable estoppel requires that defendants “be aware” of the true facts, not that they “should” be aware-or that such awareness be automatically imputed to them by virtue of their status as an employer-and there is not the slightest hint of evidence in this case that defendants were “aware” of the fact that Rodas was not an eligible employee under the FMLA at the time she went on maternity leave. 28 See Martin, 543 F.3d at 1266 n.3 (FMLA plaintiff “could not invoke” equitable estoppel where he failed to meet requirement that defendant was “aware of the true facts,” notwithstanding plaintiff's unsupported “conten[tion] that [defendant] should be charged with constructive knowledge of all facts relevant to whether his leave qualified under the FMLA”). Thus, even if defendants misrepresented to Rodas that she was eligible for FMLA leave, Rodas cannot recover under a theory of equitable estoppel because she has not presented any evidence that defendants were aware that their representation was false. See id. at 1266 (footnote omitted) (citing Busby, 513 F.3d at 1326) (where FMLA plaintiff failed to show that the “party to be estopped misrepresented material facts despite being aware of the true facts,” plaintiff's invocation of estoppel doctrine held unavailing “as a matter of law”). Rodas has also failed to establish the essential element of detrimental reliance because, by her own account, Rodas never requested to take FMLA leave, but was instead placed on leave involuntarily by her employer. Equitable estoppel “clearly presupposes that the person invoking the doctrine had a choice of actions to take and, of h[er] own volition, changed position based on the conduct of, or representations made by, the other party.” Moore, 2007 WL 1950405, at *9 n.8 (internal marks omitted) (quoting Plumley v. S. Container, Inc., 303 F.3d 364, 374 (1st Cir. 2002)). Since Rodas did not choose to go on leave of her own volition, and indeed had “no intention” of doing so, see [Doc. 79 at 71-72, 99-100], she has failed to demonstrate that she relied on any misrepresentations defendants may have made concerning her eligibility to take such leave, see Dawkins, 733 F.3d at 1090 (plaintiff failed to establish equitable estoppel in support of FMLA claim where “evidence in the record suggest[ed] [he] did not rely on any misrepresentation”); Brungart, 231 F.3d at 797 n.4 (citation omitted) (affirming summary judgment on plaintiff's FMLA claims where plaintiff failed to establish detrimental reliance); Hegre, 2007 WL 1481896, at *1 n. 1 (citations omitted) (finding “[p]laintiff's estoppel Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 10 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 11 argument [ ] meritless” where the evidence did not show detrimental reliance). See also Skinner v. Legal Advocacy Ctr. of Cent. Fla., Inc., No. 6:11-cv-1760-Orl-37KRS, 2013 WL 5720142, at *5-7 (M.D. Fla. Oct. 21, 2013) (citations omitted) (noting that the Eleventh Circuit has not adopted estoppel doctrine in the FMLA context, but finding that, “even if [estoppel] were available,” it was “not properly invoked” where FMLA plaintiff failed to prove detrimental reliance on alleged misrepresentation). Thus, even if the doctrine of equitable estoppel were applicable in the context of the FMLA, it is not properly invoked on the facts of this case. *14 In sum, because Assurance did not employ the requisite number of employees during the relevant time, it was not a covered employer, and Rodas was not an eligible employee, within the meaning of the FMLA. Accordingly, it is RECOMMENDED that defendants' motion for summary judgment, [Doc. 78], be GRANTED as to Rodas' FMLA claims, see Exemar v. Urban League of Greater Miami, Inc., No. 08-20463-CIV, 2008 WL 2645675, at *3 (S.D. Fla. June 26, 2008) (noting that whether an employer is a “covered employer ... is case- dispositive”); Hegre, 485 F. Supp. 2d at 1376 (footnote and citation omitted) (“Because Plaintiff was not an eligible employee, her FMLA claims fail as a matter of law, irrespective of her characterization of her claims as alleging ‘interference’ or ‘retaliation[,]’ ” [t]herefore, [d]efendants are entitled to summary judgment on this ground alone.”); Martin, 2007 WL 496777, at *9 (citation omitted) (“Before determining whether there has been a substantive violation, the Court must first determine whether Plaintiff is an eligible employee pursuant to the [FMLA]. If Plaintiff is not an eligible employee then [her] claims fail and [s]he does not have protection pursuant to the FMLA.”). 29 B. Title VII Claims Rodas asserts claims of pregnancy discrimination and retaliation under Title VII, arguing that defendants placed her on leave and terminated her employment with Assurance “because of her pregnancy,” [Doc. 1 at 20; Doc. 87 at 31-37], and in retaliation for her alleged opposition to the ending of Lopez's assignment on the basis of pregnancy, [Doc. 87 at 37-39]. 30 In their motion for summary judgment, defendants first argue that Rodas' Title VII claims fail as to individual defendants Schwartz and Whetstone because individuals cannot be subjected to liability under Title VII. [Doc. 78-1 at 16]. Defendants further argue that they are entitled to summary judgment on Rodas' Title VII claims because Rodas has failed to establish a prima facie case of pregnancy discrimination or retaliation, and that, even if Rodas has made a prima facie case, she has not presented sufficient evidence to permit a reasonable jury to conclude that defendants' legitimate, non-discriminatory and non-retaliatory reasons for taking any alleged adverse actions against her were pretext for unlawful discrimination and retaliation. [Id. at 17-23]. *15 “Title VII prohibits an employer from discriminating ‘against any individual with respect to [her] compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin.’ ” Obester v. Lucas Assocs., Inc., Civil Action File No. 1:08-CV-03491-MHS-AJB, 2010 WL 8292401, at *24 (N.D. Ga. Aug. 2, 2010), adopted by 2010 WL 8304884, at *4 (N.D. Ga. Sept. 7, 2010) (quoting 42 U.S.C. § 2000e-2(a)). “In 1978, Congress amended Title VII by enacting the [PDA], which specifically provided that the prohibition against sex discrimination includes discrimination based on pregnancy, childbirth, or related conditions.” Id. (citing 42 U.S.C. § 2000e(k)); see also Armindo v. Padlocker, Inc., 209 F.3d 1319, 1320 (11th Cir. 2000) (per curiam). “Further, the PDA provides that ‘women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.’ ” Armindo, 209 F.3d at 1320 (alteration in original) (citation omitted); see also Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312 (11th Cir. 1999). “Although it prohibits discrimination against pregnant employees, the ‘PDA does not require that employers give preferential treatment to pregnant employees.’ ” Obester, 2010 WL 8292401, at *25 (quoting Spivey, 196 F.3d at 1312). 31 Title VII also prohibits an employer from retaliating against an employee “because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a); see also Smithers v. Wynne, 319 Fed.Appx. 755, 756 (11th Cir. 2008) (per curiam) (unpublished) (citation omitted). The participation clause of the statute “protects proceedings and activities which occur in conjunction with or after the filing of a formal charge Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 11 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 12 with the EEOC[.]” EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (footnote and citation omitted); see also Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989) (instigation of statutory proceedings is prerequisite to protection under participation clause). The statute's opposition clause protects activity which occurs prior to the filing of a formal charge with the EEOC, such as filing an internal complaint of discrimination with the employer or informally complaining of discrimination to one's supervisors. Copeland v. CVS Pharmacy, Inc., No. CIVA 1:03CV3854 JOF, 2006 WL 2699045, at *51 (N.D. Ga. Sept. 15, 2006) (citations omitted). Rodas may support her claims of discrimination and retaliation by offering either direct or circumstantial evidence. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004); Obester, 2010 WL 8292401, at *25. “Direct evidence is ‘evidence that, if believed, proves the existence of a fact without inference or presumption.’ ” Wilson, 376 F.3d at 1086 (alterations omitted) (quoting Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997)). “Where direct evidence is present, summary judgment is not appropriate.” Bryant v. Jones, 696 F. Supp. 2d 1313, 1324 (N.D. Ga. 2010) (citations omitted). In the absence of direct evidence, the Court evaluates a claim of discrimination and retaliation in violation of Title VII by using the burden shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (per curiam); see also Slater v. Energy Servs. Grp. Int'l Inc., 441 Fed.Appx. 637, 640 (11th Cir. 2011) (per curiam) (unpublished). Under this framework, Rodas must first present a prima facie case of discrimination or retaliation, and if successful, the burden shifts to defendants to articulate legitimate, non- discriminatory and non-retaliatiatory reasons for their actions. Wilson, 376 F.3d at 1087; see also Jeudy v. Attorney Gen., Dep't of Justice, 482 Fed.Appx. 517, 520-21 (11th Cir. 2012) (per curiam) (unpublished). Upon discharge of defendants' burden, any presumption of discrimination or retaliation is rebutted, and the burden of production shifts to Rodas to offer evidence that defendants' proffered reason or reasons are a pretext for illegal discrimination or retaliation. Wilson, 376 F.3d at 1087; see also Jeudy, 482 Fed.Appx. at 521; Combs v. Plantation Patterns, 106 F.3d 1519, 1538-39, 1543 (11th Cir. 1997). 1. Individual Liability Under Title VII *16 As a preliminary matter, summary judgment is due to be granted with respect to Rodas' Title VII claims against defendants Schwartz and Whetstone because “individual defendants ‘cannot be held liable under ... Title VII’ ” as a matter of law. See Denson v. City of Coll. Park, Civil Action File No. 1:07-CV-1624-TWT, 2009 WL 302192, at *6 (N.D. Ga. Feb. 5, 2009), adopted at *1 (quoting Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995)). See also Guzman v. Comprehensive Technical Grp., Inc., Civil Action File No. 1:13-CV- 2925-TWT, 2014 WL 4925677, at *4 (N.D. Ga. Sept. 30, 2014), adopted at *1 (citations omitted) (quoting Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (per curiam)) (“Suits against individuals under Title VII are not proper because the ‘relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.’ ”); Hills v. Savannah River Utils. Co., No. CV412-120, 2014 WL 4267486, at *4 (S.D. Ga. Aug. 27, 2014), adopted at *1 (citation omitted) (“Employment discrimination suits are [not] permitted against a plaintiff's ... supervisor in his individual capacity.”); Perkins v. Kushla Water Dist., Civil Action No. 13-00286-KD-B, 2014 WL 1922789, at * (S.D. Ala. May 14, 2014) (citation omitted) (citing Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006) (per curiam)) (“[B]oard members are not subject to liability under Title VII.”); Williams v. Ala. Dep't of Corr., No. 4:12-CV-4043-KOB, 2014 WL 636977, at *7 (N.D. Ala. Feb. 18, 2014) (citing Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996)) (“No individual liability exists under ... Title VII[.]”); King v. Auto, Truck, Indus. Parts & Supply, Inc., 21 F. Supp. 2d 1370, 1383 (N.D. Fla. Mar. 28, 1998) (no individual liability under Title VII for the “president and sole shareholder” of defendant employer); Brewer v. Petrol. Suppliers, Inc., 946 F. Supp. 926, 930- 31 (N.D. Ala. 1996) (chief executive officer of defendant corporation could not be sued in individual capacity under Title VII). Accordingly, it is RECOMMENDED that defendants' motion for summary judgment be GRANTED as to Rodas' Title VII claims against defendants Schwartz and Whetstone. 2. Pregnancy Discrimination Claim Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 12 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 13 Assurance argues that Rodas' pregnancy discrimination claim fails because she has not established a prima facie case and because she has failed to rebut its legitimate, non-discriminatory reasons for any adverse employment actions taken against her. [Doc. 78 at 18-22]. Rodas responds that she has established pregnancy discrimination by both direct and circumstantial evidence, and that she has also presented sufficient evidence to create a genuine issue of material fact as to whether the reasons proffered for taking the adverse actions against her are pretext for unlawful discrimination. [Doc. 87 at 31-37]. Because the Court finds that different types of evidence support Rodas' discrimination claim with respect to her placement on leave and her alleged termination, the Court considers each of these alleged adverse employment actions separately. 32 a. Placement on Leave *17 Rodas contends that Whetstone's comments to her during the telephone conversation of June 18, 2012 -that Lopez's assignment with Assurance was being ended because Lopez was pregnant, and that Rodas herself would soon have to take maternity leave- are direct evidence of pregnancy discrimination with respect to Rodas' involuntary placement on maternity leave. See [Doc. 87 at 31-21]. Assurance argues that while Whetstone's statement “may be direct evidence of discrimination toward Lopez, it is not evidence of discrimination toward [Rodas],” since Whetstone “was merely acknowledging the realities of pregnancy in referencing maternity leave[.]” [Doc. 88 at 12]. The Eleventh Circuit has defined direct evidence as “ ‘evidence which reflects a discriminatory ... attitude correlating to the discrimination ... complained of by the employee.’ ” Wilson, 376 F.3d at 1086 (citation and internal marks omitted). “ ‘[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate’ satisfy this definition.” Mathis v. Wachovia Bank, 255 Fed.Appx. 425, 429 (11th Cir. 2007) (per curiam) (unpublished) (citation omitted). To constitute direct evidence, a statement must “directly relate in time and subject to the adverse employment action at issue,” Jones v. BE&K Eng'g Co., 146 Fed.Appx. 356, 358 (11th Cir. 2005) (per curiam) (unpublished) (citations omitted), such that “ ‘a reasonable trier of fact could find, more probably than not, a causal link between an adverse employment action and a protected personal characteristic,’ ” Holland v. Gee, 719 F. Supp. 2d 1361, 1366 (M.D. Fla. 2010) (quoting Wright v. Southland Corp., 187 F.3d 1287, 1293 (11th Cir. 1999)). Accordingly, “[a] plaintiff can demonstrate direct evidence of pregnancy discrimination if she has a statement by an employer that it took pregnancy into account in making the relevant employment decision.” Obester, 2010 WL 8292401, at *38 (citation omitted). 33 “If the Court finds that the alleged statement merely ‘suggests, but does not prove, a discriminatory motive, then it is circumstantial evidence.’ ” Burrell, 125 F.3d at 1393; see also Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (citations omitted) (“Evidence that only suggests discrimination, or that is subject to more than one interpretation, does not constitute direct evidence.”). However, “ ‘[w]here the non-movant presents direct evidence that, if believed by the jury, would be sufficient to win at trial, summary judgment is not appropriate even where the movant presents conflicting evidence.’ ” Merritt, 120 F.3d at 1189 (quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)). Whetstone's June 18, 2012, statement to Rodas that Lopez's assignment at Mobis must be ended because of her pregnancy, and that Rodas, who also was pregnant and worked at the Mobis worksite, would soon be required to go out on maternity leave, constitutes direct evidence that Whetstone's decision to place Rodas on leave was motivated by a consideration of her pregnancy. Specifically, Whetstone told Rodas that Lopez had to be let go because Kim believed it was a liability to have pregnant women working at Mobis, and that, “after [Lopez went] out ... [Assurance was] going to get somebody else ... to replace [Rodas] and make [Rodas] go on ... maternity leave.” [Doc. 79 at 166]. It is undisputed that Whetstone was a decision maker for Assurance, that he knew Rodas was pregnant, and that he did in fact “remove[ ] Rodas from the Mobis site.... [and] instruct[ ] her to go on maternity leave,” [Doc. 78-3 at 8 ¶ 19], several weeks after he ended Lopez's assignment. Whetstone's comments thus “directly relate in time and subject to the adverse employment action at issue,” Jones, 146 Fed.Appx. at 358 (citations omitted), and they clearly “demonstrate the existence of a discriminatory ... attitude correlating to the discrimination ... complained of by [Rodas],” Obester, 2010 WL 8292401, at *60 (citation and internal marks omitted); see also Merritt, 120 F.3d at 1189 Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 13 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 14 (alteration in original) (quoting Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990), impliedly overruled on other grounds by St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)) (collecting cases) (“In a long line of cases, this Court has found direct evidence where ‘actions or statements of an employer reflect[ ] a discriminatory ... attitude correlating to the discrimination ... complained of by the employee.’ ”). 34 *18 Indeed, it is “immediately obvious” from the face of Whetstone's remarks-“Mobis d[oes] not want any more pregnant people”; “[we]'re going to have to make [you] go on maternity leave,” [Doc. 79 at 49]-that the fact of Rodas' pregnancy and her placement on leave are “linked ... in such a way as to communicate cause and effect,” see Merritt, 120 F.3d at 1190. The statement in this case is thus the equivalent of “You must go on leave -you are pregnant.” See id. (first alteration in original) (finding employer's statement that “[plaintiff's] deposition was the most damning ..., and [plaintiff] no longer ha[s] a place here,” to be “the equivalent of ‘Fire [plaintiff] -he gave the most damning deposition testimony’ ”); see also Crawford v. Dolgen Corp. Inc., 790 F. Supp. 2d 1361, 1367 (S.D. Ala. 2011) (second alteration in original) (citation and internal marks omitted) (plaintiff presented direct evidence of pregnancy discrimination where she was terminated after her employer told her “she didn't think it was going to work that [plaintiff] was pregnant[,] ... and that she was going to have to get rid of [plaintiff]”); Anderson, 678 F. Supp. 2d at 1306 (alterations in original) (citation omitted) (“A statement by an assistant store manager ‘we won't be hiring you ... because of the conditions of your pregnancy ... [y]ou're welcome back after you've had the baby’ constitutes direct evidence of discrimination.”). No inference is necessary to understand that Whetstone took Rodas' pregnancy into account when deciding to place her on leave. Assurance asserts that Whetstone was “merely acknowledging the realities of pregnancy in referencing [Rodas' placement on] maternity leave,” [Doc. 88 at 12], but “the evidence [Rodas] presents is the kind of evidence that, ‘if believed by the jury, would be sufficient to win at trial,’ such that ‘summary judgment is not appropriate even [though] the movant presents conflicting evidence,” Rumbley v. Austal USA, Civil Action No. 1:09-499-KD-B, 2010 WL 4683989, at *11 (S.D. Ala. Nov. 12, 2010) (alteration in original) (citation omitted) (quoting Merritt, 120 F.3d at 1189). Because Rodas has presented direct evidence that her placement on leave was “prompted by her pregnancy, [ ] the ultimate issue of discrimination is proved,” see Ferrell v. Masland Carpets, Inc., 97 F. Supp. 2d 1114, 1122 (S.D. Ala. 2000) (citation and internal marks omitted), and summary judgment is therefore inappropriate on Rodas' claim of pregnancy discrimination with respect to her placement on maternity leave. 35 b. Termination *19 Unlike her placement on leave, Rodas' alleged termination was not mentioned by Whetstone during the telephone conversation of June 18, 2012. See [Doc. 79 at 48-52, 71, 138, 165-76]. Furthermore, Rodas contends that she was not terminated until sometime in August, 2012, about a month after she had been placed on leave in July, 2012. See [Doc. 87 at 33; Doc. 83-1 at 21]; see also [Doc. 78-3 at 7; Doc. 78-4 at 8, Doc. 79 at 68-69]. As such, the remarks made by Whetstone in the discussion of June 18 are not so immediately related to Rodas' alleged termination as to constitute direct evidence that Rodas was terminated because of her pregnancy. In the absence of direct evidence, the Court applies the familiar McDonnell Douglas burden-shifting framework, under which Rodas bears the initial burden of presenting sufficient circumstantial evidence to state a prima facie case of pregnancy discrimination. See Burke- Fowler, 447 F.3d at 1323 (citation omitted); see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Walden v. Verizon Bus. Network Servs., Inc., No. 1:06-cv-2394-WSD-WEJ, 2008 WL 269619, at *16 (N.D. Ga. Jan. 29, 2008), adopted at *5. “Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam) (citations omitted); see also Burdine, 450 U.S. at 253-54. Rodas may establish a prima facie case of pregnancy discrimination by demonstrating that (1) she is a member of a protected group (i.e., she was pregnant and her employer knew that she was pregnant); (2) she was qualified for the position she held; (3) she suffered an adverse effect on her employment; and (4) she suffered from a differential application of work or disciplinary rules. Williams v. Crown Liquors of Broward, Inc., 851 F. Supp. 2d 1332, 1338 (S.D. Fla. 2012) (quoting Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005 (7th Cir. 2001) (citation omitted)); see also Grace, 470 Fed.Appx. at Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 14 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 15 814. Assurance contends that Rodas has not made out a prima facie case because (1) she did not “perform[ ] her duties satisfactorily”; (2) she was not discharged, but only “temporarily suspended”; and (3) she was not subjected to a differential application of work rules. See [Doc. 78-1 at 18]. Rodas responds that she was qualified for her position as supervising inspector; that she was subject to “two separate and distinct adverse employment actions,” namely, her placement on leave and her alleged termination; and that she has otherwise presented sufficient circumstantial evidence to establish a prima facie case of pregnancy discrimination. See [Doc. 87 at 32-33]. Rodas' termination claim does not neatly fit within the McDonnell Douglas burden-shifting framework, but based on a consideration of the record as a whole, and drawing all reasonable inferences in favor of Rodas, the Court finds that there is a triable issue of fact as to whether Rodas was terminated as a result of her pregnancy. It is uncontested that Rodas was pregnant and that defendants knew she was pregnant at the time she was placed on leave, but that she had delivered her baby by the time of her alleged termination. See [Doc. 78-1 at 18]. 36 A reasonable jury could also find that Rodas was qualified for her job, since, despite the complaints made to Assurance about Rodas' work performance, Whetstone avers that he nevertheless decided to retain Rodas as an employee. See [Doc. 78-3 at 8]. Moreover, the record contains no disciplinary records or poor performance evaluations of Rodas at any time throughout her employment with Assurance, and while Assurance now maintains that Rodas was actually “suspended” for poor performance when she was placed on leave, the letters given to Rodas by Assurance in connection with her leave make no mention of a suspension, instead indicating only that Rodas was out “due to lack of work” and because she was on FMLA leave. See [Docs. 83-8 & 83-10]. Rodas concedes that she cannot point to any similarly situated comparators to show a differential application of work rules. See [Doc. 87 at 34 (footnoted omitted) (“Rodas was the only supervisor; therefore there are no other individuals to whom she can be compared.”) ]. However, Rodas is not obligated to prove a prima facie case under one rigid test, but must only present some admissible evidence from which a finder of fact could conclude that she was discriminated against because of her pregnancy. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983); Chapter 7 Tr. v Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012) (second alteration in original) (citations and internal marks omitted) (noting that “[t]he McDonnell Douglas framework is not ... the only way to use circumstantial evidence to survive a motion for summary judgment, and a plaintiff's failure to produce a comparator does not necessarily doom [her] case.”); Wilson, 376 F.3d at 1087 (citation omitted) (“The methods of presenting a prima facie case are not fixed; they are flexible and depend to a large degree upon the employment situation.”); Rioux v. City of Atlanta, 520 F.3d 1269, 1275 (11th Cir. 2008) (“More than one formulation of the elements of a prima facie case exist.”). Indeed, the Eleventh Circuit “has previously stated that ‘[i]f a plaintiff fails to show the existence of a similarly situated employee, summary judgment is appropriate where no other evidence of discrimination is present.’ ” Rioux, 520 F.3d at 1277 (alteration in original) (emphasis omitted). *20 Thus, while Rodas' case may not fit neatly into the classic McDonnell Douglas formula, the Court finds that there is nonetheless sufficient circumstantial evidence from which a reasonable jury-believing Rodas' testimony that Assurance terminated her while she was out on maternity leave-could conclude that Rodas' alleged termination was motivated by a consideration of her pregnancy. Specifically, a jury could find that even though Rodas' condition of pregnancy had no impact on her ability to perform her job, see [Doc. 78-3 at 5-6; Doc. 78-4 at 6], Rodas was placed on leave because she was pregnant, see [Doc. 79 at 48-50, 165-67; Doc. 83-7 at 75-77, 170-71], and Assurance had previously ended the assignment of Lopez for no other reason than that Lopez was pregnant and Kim did not want pregnant workers at Mobis, see [Doc. 79 at 48-49, 165, 167; Doc. 83-3 at 7 ¶ 12; Doc. 83-7 at 75-76, 170-71]. A jury could also reasonably conclude that, while Rodas was told she could return to work when her leave was over, see [Doc. 79 at 166; Doc. 83-3 at 8 ¶ 13 (Whetstone “told [Rodas] ... to come back to work after [she] gave birth.”); Doc. 83-7 at 77 (Whetstone told Rodas “that her job was going to be there when she came back off of having her baby from leave.”) ], Assurance nevertheless terminated Rodas while she was out on leave, see [Doc. 79 at 207; Doc. 83-3 at 8-9 ¶ 15], despite having previously determined that, although Rodas' work performance was deficient, the deficiencies in her performance were not sufficient grounds to terminate her employment, but warranted, at most, that Rodas be temporarily removed from the Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 15 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 16 Mobis worksite, [Doc. 78-3 at 7-8 ¶¶ 17-19; Doc. 78-4 at 7-8 ¶¶ 15-17]. There is also evidence that Rodas was replaced by Mack, a non-pregnant employee outside of Rodas' protected class. See [Doc. 79 at 48-50, 83, 166; Doc. 83-3 at 7 ¶ 14; Doc. 83-7 at 77]. Accordingly, viewing the record as a whole and in the light most favorable to Rodas, the Court concludes that Rodas has established a prima facie case, and for the reasons that follow, the conflicting evidence in this case raises a genuine issue of material fact as to whether Assurance terminated Rodas' employment because of her pregnancy. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (footnote and citations omitted) (“A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a ‘convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.’ ”); see also Fodere v. Lorenzo, 441 Fed.Appx. 666 (11th Cir. 2011) (per curiam) (unpublished). Since Rodas has established a prima facie case of pregnancy discrimination, the inference of discrimination arises, and the burden shifts to Assurance to articulate a legitimate, non-discriminatory reason for its actions. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001); Berman v. Orkin Exterminating Co., 160 F.3d 697, 702 (11th Cir. 1992) (footnote omitted); see also Entrekin v. City of Panama City Fla., 376 Fed.Appx. 987, 997 (11th Cir. 2010) (per curiam) (unpublished); Batts v. Silver Line Bldg. Prods. Corp., Civil Action File No. 1:08-CV-3355-WSD-ECS, 2010 WL 966860, at *9 (N.D. Ga. Feb. 22, 2010), adopted by 2010 WL 966861, at *2 (N.D. Ga. Mar. 12, 2010) (citations omitted). The burden, one of production and not of persuasion, is “exceedingly light.” Smith v. Horner, 839 F.2d 1530, 1537 (11th Cir. 1988) (citations and internal marks omitted). “It is not necessary that the court believe the evidence [proffered by defendant],” as “the court's analysis can involve no credibility assessment.” Matthews v. City of Dothan, No. 1:04-CV-640-WKW, 2006 WL 3742237, at *5 (M.D. Ala. Dec. 18, 2006) (citation and internal marks omitted). Rather, “[s]o long as [defendant] articulates ‘a clear and reasonably specific’ [non-discriminatory] basis for its actions, it has discharged its burden of production.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 770 (11th Cir. 2005) (per curiam) (citation omitted). Assurance has not specifically offered any reasons, legitimate or otherwise, for the termination of Rodas' employment since it argues, instead, that Rodas was never terminated. [Doc. 78-1 at 18-20]. Although Assurance asserts that the decision to place Rodas on leave was really a “suspension” that was based on Rodas' poor work performance, [id.], the Court has already determined that direct evidence supports Rodas' claim of pregnancy discrimination with respect to her placement on leave, and the proffered legitimate reasons for that adverse action are therefore ineffectual as a matter of law, see Merritt, 120 F.3d at 1191 (“Because we hold that [plaintiff] has presented sufficient direct evidence to survive summary judgment, we do not address ... whether he has presented evidence of pretext.”); Bryant, 696 F. Supp. 2d at 1324 (footnote and citations omitted) (“Where direct evidence is present, summary judgment is not appropriate.”). And while Rodas' inadequate job performance would certainly be a legitimate, non-discriminatory reason for her termination, Assurance has only offered that reason to explain Rodas' placement on leave, not for her alleged termination, and the Court may not craft an argument for Assurance that it simply has not made. See [Doc. 78-1 at 19-22 (arguing that “Rodas cannot present any evidence that [Assurance's] reason for suspending her was a pretext for pregnancy discrimination”) ]; Fils v. City of Aventura, 647 F.3d 1272, 1284 (11th Cir. 2011) (citations omitted) (“Our adversarial system requires it; district courts cannot concoct ... arguments neither made nor advanced by the parties.”). *21 In any event, Assurance could not plausibly offer Rodas' poor work performance as the reason for her alleged termination, because, by defendants' own account, the deficiencies in Rodas' work performance were not sufficient to warrant her termination, but only her suspension, in view of the investment Assurance had made in training Rodas as an employee. See [Doc. 78-2 at 11 ¶ 59 (citation omitted) (“Although Rodas' poor performance caused significant issues, [d]efendants wanted to retain Rodas as an employee because of the amount of time and expense [Assurance] had invested in training her.”) ]. In other words, because Assurance has explained not only that its decision to place Rodas on leave was based on a consideration of the deficiencies of her performance, but also that its consideration of those same deficiencies formed the basis of its corresponding decision not to terminate her, it follows that the legitimate reason proffered for placing Rodas on leave may not simultaneously be used as the reason for allegedly terminating her employment. Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 16 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 17 Of course, Assurance contends that Rodas' termination never occurred, but that is a disputed factual question for a jury to decide. A reasonable jury could thus believe that, notwithstanding Assurance's own admission that Rodas' poor performance did not, on balance, warrant her termination, Assurance nonetheless terminated Rodas' employment after it placed her on leave because of her pregnancy. Based on these facts, and in the absence of any alternative non-discriminatory explanation offered by Assurance for Rodas' termination, a jury could conclude by a preponderance of the evidence that Assurance terminated Rodas while she was out on leave for the same reason that it placed her on that leave in the first place-her pregnancy. Accordingly, Assurance has failed to rebut the presumption of discrimination arising from Rodas' prima facie case of unlawful termination, and a genuine issue for trial remains as to whether Rodas was, in fact, terminated because of her pregnancy. 37 Therefore, it is RECOMMENDED that Assurance's motion for summary judgment be DENIED as to Rodas' claim of pregnancy discrimination under Title VII. 3. Retaliation Claim Assurance argues that Rodas has failed to present a prima facie case of retaliation because she has not established that she engaged in any statutorily protected activity or that there is a causal connection between any alleged protected activity and any materially adverse actions taken against her. See [Doc. 78-1 at 22-23]. 38 To establish a prima facie case of retaliation under Title VII, Rodas must demonstrate that (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse action; and (3) there is a causal connection between the protected activity and the adverse action. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 57; Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006); Brochu v. City of Riviera Beach, 304 F.3d 1144, 1155 (11th Cir. 2002); Sullivan v. Nat'l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999); Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994). An employee's internal complaint to her employer about unlawful employment practices is examined as protected activity under the opposition clause of Title VII's anti-retaliation provision. See, e.g., Total Sys. Servs., Inc., 221 F.3d at 1174 & n3. 39 *22 Rodas argues that she engaged in protected activity by “oppos[ing] the discriminatory treatment against [ ] Lopez on June 18, 2012.” [Doc. 87 at 37-38 (emphasis and footnote omitted) ]. The sole support for Rodas' argument is found in her affidavit, in which she states that, when Whetstone told Rodas to “let [Lopez] go,” Rodas responded that Whetstone “couldn't do that because it would be a lawsuit.” [Doc. 83-3 at 7 ¶ 12]; see also [Doc. 87 at 38]. Assurance argues that this statement in Rodas' affidavit, which she filed after her deposition, is inconsistent with the prior testimony she gave at her deposition, and is therefore a “sham” statement, which “should not be considered to create genuine issues of material fact.” [Doc. 88 at 2 (citation and internal marks omitted) ]; see also [id. at 14-15]. In her surreply, Rodas denies any inconsistency and contends that the statement in her affidavit merely clarifies and expands upon her deposition testimony. [Doc. 90-2 at 3-6]; see also [Doc. 90-3]. “An affidavit may be considered a ‘sham’ affidavit ‘when a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact ... [and that party attempts] thereafter [to] create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.’ ” White v. Crystal Mover Servs., Inc., Civil Action No. 1:13- CV-1452-WSD-JSA, 2014 WL 4662371, at *10 (N.D. Ga. June 24, 2014), adopted as modified by 2014 WL 4662379, at *10 (N.D. Ga. Sept. 18, 2014) (alterations in original) (citation omitted) (quoting Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986)). The Eleventh Circuit has cautioned that the sham affidavit rule “should be used sparingly, and the affidavit and deposition must contain inherent inconsistencies before the affidavit can be disregarded.” Wolk v. Seminole Cnty., 276 Fed.Appx. 898, 900 (11th Cir. 2008) (per curiam) (unpublished). “A court presented with such an inconsistency in a party's testimony may disregard the later ‘sham affidavit’ in favor of the earlier deposition testimony. Id. (citations omitted) (citing Van T. Junkins & Assoc. v. U.S. Indus., Inc., 736 F.2d 656, 658 (11th Cir. 1984)). At her deposition, Rodas made no mention of objecting to Whetstone's directive to end Lopez's assignment during the relevant June 18, 2012, telephone conversation with Whetstone, although she was questioned at length about the details of that conversation. See [Doc. 79 at 48-52, 71, 138, 165-76]. 40 Rodas did testify that, when she got off Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 17 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 18 the phone with Whetstone, Lopez mentioned something about a “ ‘lawsuit’ ” because she believed her assignment had been ended as a result of her pregnancy. [Id. at 169]. Yet when counsel asked Rodas what she-Rodas- did “to put [her] employer on notice of this allegation,” see [id. at 175 (emphasis added) (“I'm asking you what you did. As a supervisor of Assurance, what did you do to put your employer on notice of this allegation? What did you do?”) ], Rodas answered only that, about thirty minutes after Lopez made the remark, Rodas told Whetstone “what [Lopez] had said,” [id. at 175-79]. More importantly, after providing detailed testimony about her telephone conversation with Whetstone and the particular statements she made therein, Rodas was asked if there was “anything else that [she] and [Whetstone] discussed,” and Rodas answered, “No.” [Id. at 166-67]. Rodas thus clearly testified, in response to an unambiguous question, that the statements she recounted from her conversation with Whetstone were the only statements made in that conversation, and that her testimony as to what she said in that conversation was complete. Because those statements did not include the statement of opposition now alleged by Rodas in her affidavit, Rodas' deposition testimony flatly contradicts the allegation in her affidavit. 41 *23 Indeed, Rodas “specifically said no when asked if there was anything else to say about the conversation,” and “[i]t was only after [d]efendant[s] filed [their] motion [for summary judgment] that [Rodas] suddenly remembered complaining about the very actions necessary to establish a prima facie case of retaliation.” Williams v. Cleaver-Brooks, Inc., Civil Action No. 7:11-CV-144 (HL), 2012 WL 6151141, at *13 (M.D. Ga. Dec. 11, 2012), aff'd 529 Fed.Appx. 979 (11th Cir. 2013) (per curiam) (unpublished). It thus appears that Rodas “is trying to save h[er] retaliation claim by stating in h[er] affidavit that [s]he complained about [pregnancy] discrimination[: t]his sort of manipulation is the reason behind the sham affidavit rule, and the Court finds that it is applicable in this case.” Id. Since Rodas' affidavit offers no explanation for the inherent inconsistency between her deposition testimony and the statement in the affidavit, the Court disregards the alleged statement of opposition in Rodas' affidavit as a sham statement that is insufficient to create a genuine dispute of material fact as to whether Rodas engaged in protected activity. See Bryant, 428 Fed.Appx. at 897 (affirming district court's application of sham affidavit rule where plaintiff's “affidavit, filed after her deposition had been taken and discovery had closed, supplied a specific fact that [plaintiff] denied knowledge of when questioned on deposition,” and “the affidavit presented no valid reason for [plaintiff's] subsequent recollection”); Mazzola v. Brown & Brown, Inc., No. 8:13-cv-1127-T-24-TBM, 2014 WL 2441871, at *5-6 (M.D. Fla. May 30, 2014) (plaintiff's declaration was sham affidavit where his prior deposition testimony was inconsistent and plaintiff failed to explain the discrepancy); Bentley Motors Ltd. Corp. v. McEntegart, 976 F. Supp. 2d 1297, (M.D. Fla. 2013) (citation omitted) (“[A]lthough a court should not reject an affidavit merely because it is at odds with statements made in an earlier deposition, the court need not give credence to an affidavit that contradicts previous testimony without any valid explanation or clarification.”). Accordingly, Rodas has failed to establish that she engaged in protected activity by opposing a practice made unlawful under Title VII. 42 She has thus failed to state a prima facie case of retaliation, and it is RECOMMENDED that Assurance's motion for summary judgment be GRANTED as to Rodas' Title VII retaliation claim. See Bolton v. Baldwin Cnty. Pub. Sch., No. CA 13-0548-C, 2014 WL 4685557, at *7 (S.D. Ala. Sept. 22, 2014) (alteration and citations omitted) (plaintiff failed to present a prima facie case of retaliation where she “did not oppose an unlawful employment practice engaged in by [defendants] at the time [she was placed on leave] ... or ... terminated, nor had she made a charge under Title VII's retaliation provision at that time”). IV. CONCLUSION For the foregoing reasons, Rodas' motion for leave to file a surreply, [Doc. 90], is GRANTED, and it is RECOMMENDED that defendants' motion for summary judgment, [Doc. 78], be GRANTED IN PART and DENIED IN PART. Specifically, it is RECOMMENDED that the motion for summary judgment, [id.], be GRANTED as to all of Rodas' claims against defendants Schwartz and Whetstone, and as to Rodas' Title VII retaliation claim, as well as her claims under the FMLA and 42 U.S.C. §§ 1981 and 1983 with respect to Assurance, but DENIED as to her Title VII claim of pregnancy discrimination against Assurance. IT IS SO ORDERED and RECOMMENDED, this 7th day of November, 2014. Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 18 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 19 All Citations Slip Copy, 2014 WL 12479989 Footnotes 1 In 1978, “Congress amended Title VII to include the [PDA].” EEOC v. Houston Funding II, Ltd., 717 F.3d 425, 427 (5th Cir. 2013) (citing 42 U.S.C. § 2000e(k)). See also AT&T Corp. v. Hulteen, 556 U.S. 701, 705 (2009). The Court's references to Title VII in this Non-Final Report, Recommendation, and Order are therefore inclusive of the PDA. 2 The listed document and page numbers in citations to the record in this Non-Final Report, Recommendation, and Order refer to the document and page numbers shown on the Adobe file reader linked to the Court's electronic filing database, CM/ECF, except that citations to deposition transcripts are cited according to the transcript page number. 3 Express Services, Inc. (“ESI”) was also added as a party defendant on November 8, 2013, see [Doc. 50; Docket Entry dated 11/08/2013], but all claims against ESI were dismissed without prejudice on February 27, 2014, see [Doc. 77 (joint stipulation of dismissal without prejudice as to ESI); Docket Entry dated 02/27/2014]. 4 Rodas has also filed a motion for leave to file a surreply to defendants' reply brief. [Doc. 90]. “Neither the Federal Rules nor the Court's Local Rules allow sur-reply briefs as a matter of right, and the Court normally does not permit sur-replies.” USMoney Source, Inc. v. Am. Int'l Specialty Lines Ins. Co., No. 1:07-cv-0682-WSD, 2008 WL 160709, at *2 n.5 (N.D. Ga. Jan. 15, 2008), rev'd on other grounds, 288 Fed.Appx. 558 (11th Cir. 2008) (per curiam) (unpublished) (citation omitted); see also Leatherwood v. Anna's Linens Co., 384 Fed.Appx. 853, 857 (11th Cir. 2010) (per curiam) (unpublished) (citation omitted). “Although the Court may in its discretion permit the filing of a surreply, this discretion should be exercised in favor of allowing a surreply only where a valid reason for such additional briefing exists, such as where the movant raises new arguments in its reply brief.” Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1997 (N.D. Ga. 2005) (citations omitted); see also St. James Entm't LLC v. Dash Crofts, Civil Action No. 1:09-CV-1975-RWS, 2010 WL 2802616, at *1 (N.D. Ga. July 13, 2010) (“Certainly, the Court is disinclined to consider arguments raised in a surreply which could have been raised in an earlier filing.”). Because defendants do not oppose Rodas' motion, see LR 7.1B, NDGa., and for good cause shown, the Court will consider Rodas' surreply in ruling on the pending motions. Accordingly, Rodas' motion for leave to file a surreply, [Doc. 90], is GRANTED, and the Clerk is DIRECTED to enter Rodas' surreply, [Doc. 90-2 & Doc. 90-3], on the docket. 5 Rehau's parts were also inspected by Assurance at Glovis America, Inc. (“Glovis”), which was located in Alabama. [Doc. 78-3 at 4 ¶ 6; Doc. 79 at 36]. 6 Although Assurance provided quality control at Mobis' Georgia plant, Mobis was not a client of Assurance, nor did it have any contractual relationship with Assurance. [Doc. 78-3 at 4 ¶ 5]. 7 In May of 2012, Assurance sent Rodas to Detroit to receive training about a new automotive part, with the expectation that Rodas would then train the other Assurance workers according to what she had learned. See [Doc. 79 at 78-81]; see also [Doc. 79-7 (travel confirmation with hotel reservation in Detroit from May 13, 2012, to May 14, 2012, along with e-mail from Whetstone stating that Assurance would “pay for [Rodas'] training”) ]. 8 Assurance's employment records confirm that Lopez no longer worked with Assurance as of the work week beginning June 24, 2012. See [Docs. 78-6 through 78-8]. 9 Rodas testified that her job involved working in her office at Mobis “at the end of the day, just enough time to send the reports,” but that most of the day she was “on the floor” going “back and forth” between Mobis, Glovis, and Kia. [Doc. 79 at 122-23]. 10 Rodas did not testify that she opposed Whetstone when he instructed her to end Lopez's assignment, see [Doc. 79 at 48-52, 71, 138, 165-76], and Lopez expressly denied that Rodas voiced any sort of objections to Whetstone's directive, see [Doc. 83-7 at 79-80 (testifying that Rodas did not tell Whetstone that she thought the decision to end Lopez's assignment on the basis of pregnancy was wrong or in violation of the law or Assurance policy, and that Rodas made no effort to “protect” Lopez, but instead simply “d[id] what she was told”) ]. But in her affidavit, filed several months after her deposition, Rodas states that she objected to Whetstone's instructions to end Lopez's assignment by telling Whetstone that “he couldn't do that because it would be a lawsuit.” See [Doc. 83-3 at 7 ¶ 12]. The Court will consider this alleged statement of opposition in it is discussion of Rodas' Title VII retaliation claim. 11 Lopez gave birth one week after her assignment with Assurance had ended, [Doc. 83-7 at 83], and she was subsequently reassigned to a different temporary job a few weeks after she told Express that she was available for work in July, 2012, [id. at 84-85]. Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 19 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 20 12 In her complaint, Rodas alleged that Kim “consistently scrutinized [her] work performance” after learning that she and Lopez were pregnant. [Doc. 1 at 8]. At her deposition, however, Rodas testified that Kim only criticized her work performance on one occasion, [Doc. 79 at 92-93 (testifying that Kim's criticism in June, 2012, was “just a one-time thing”); 94-95 (“[Kim] criticized me one time[.]”) ], and she admittedly had “no explanation” for the allegation in her complaint that Kim “consistently scrutinized” her performance, [id. at 93-95]. 13 Rodas did, however, tell Whetstone that she had asked Kim if the reason he had criticized her performance earlier that day was because she was pregnant, to which Whetstone responded that was not the reason for Kim's criticism. [Doc. 79 at 205-06]. 14 Sturkie was under Rodas' supervision during her temporary assignment at Assurance. See [Doc. 79 at 55]. 15 Rodas testifed that Kim, Schwartz, Whetstone, and Young, along with “numerous [other] people at Rehau,” reviewed her inventory reports. [Doc. 79 at 90]. 16 There is evidence that P-Land was hired as a third-party inspector for several different reasons. According to Rodas, P- Land was hired because Rehau “kept having bad parts” and because a certain worker under Rodas' supervision had, on a single occasion, “let some [bad] parts slide through[.]” [Doc. 79 at 95-96, 119]. The record also includes e-mails from Kim, suggesting that P-Land was hired to address “quality and logistics issue[s] with Rehau.” [Doc. 83-15]; see also [Doc. 83-3 at 6 ¶ 10 (Rodas alleging that Kim told her that P-Land was brought in “because of Rehau's defective ... parts”); Docs. 83-15 & 83-16 (Kim's e-mails to Rehau from May and July, 2012, where Kim states that “Rehau is one of the worst supplier[s] [ ] here,” and advises Rehau that, “if [Kim] find[s] defective part[s] ..., [he] will use 3 rd party inspection” at Rehau's expense) ]. However, Young avers that P-Land was hired “[t]o monitor and review [ ] Rodas' work,” [Doc. 79-9], and Schwartz and Whetstone likewise attest that P-Land was hired “as a result” of the stoppages in the Kia Line that were caused by Rodas' erroneous reports, see [Doc. 78-3 at 6 ¶ 14, 7 ¶¶ 15-16; Doc. 78-4 at 7 ¶¶ 12-13]. Taken together, the various reasons given for the hiring of P-Land are not inconsistent, but show that P-land was brought in to address several non-exclusive concerns, one of which was the perceived deficiency in Rodas' performance, and in particular the accuracy of her reports. See [Doc. 78-3 at 6 ¶ 14, 7 ¶¶ 15-16; Doc. 78-4 at 7 ¶¶ 12-13; Doc. 78-16 at 4 ¶ 9; Doc. 79-9]. 17 Mack began working as a full-time employee of Assurance sometime near the “end of 2011,” [Doc. 79 at 84], and Rodas alleges that she trained Mack to take her place when Rodas went out on leave, [id. at 83; Doc. 83-3 at 6 ¶ 9]. 18 The record also includes a letter, signed by Whetstone, stating that “Rodas will be on FMLA leave starting 07/20/12.” [Doc. 83-8]. Another letter from Whetstone indicates that Rodas would be “out of work from 7/20/12 to the first week of September due to lack of work,” [Doc. 83-10], and Rodas testified that Schwartz and Whetstone wrote this letter for Rodas to use in filing for unemployment, [Doc. 79 at 99]. See also [Doc. 83-3 at 7 ¶ 13 (“alleging that, after Rodas went out on leave, Assurance “sent [her] a letter stating that [her] FMLA leave was starting July 19, 2012,” and a “separate letter” for her unemployment application”) ]. 19 Rodas' testimony on this point contradicts the allegations in her EEOC charge that she had “plann[ed] to take [leave under the] FMLA,” but that Assurance “terminated [her] before [she] was able to take FMLA.” [Doc. 79-5]. Asked to explain this discrepancy between her EEOC charge and her deposition testimony, Rodas stated that the charge was completed by a worker at the EEOC, and that, although Rodas signed her name to the charge, she “misread” the charge and “skimmed through it” and “did[ not] read all of it.” [Doc. 79 at 72-73; Doc. 83-3 at 9 ¶ 16]. Additionally, Rodas' EEOC charge alleges that “Schwartz gave [Rodas] a written document regarding [her] FMLA rights,” indicating that she “was entitled to FMLA,” [Doc. 79-5], but Rodas testified, at her deposition, that Assurance “never [gave her] an FMLA document” and that she “never signed any FMLA papers,” [Doc. 79 at 73]. Rodas also admits that she never received any training from Assurance regarding the FMLA, and that she did not know the requirements or qualifications for an employee to take FMLA leave. [Id. at 199-200]. 20 Rodas testified that she was replaced by Mack, who was not pregnant at the time, after Rodas went out on leave. See [Doc. 79 at 83]. 21 Although Rodas states that Whetstone told her she was terminated sometime after she had gone out on leave and given birth in August, 2012, see [Doc. 79 at 69, 98, 207], she also testified that she believed her termination occurred when Assurance first removed her from Mobis and instructed her take leave in July, 2012, see [id. at 70-71, 74, 153]. However, Rodas is listed as an Assurance employee on Assurance employment records throughout the month of July, 2012, see [Doc. 78-7 at 2-5], and up through the end of August, 2012, see [Doc. 78-7 at 14-15; Doc. 78-8 at 2], and Rodas admits that Assurance said she was “still employed” after she was placed on leave, see [Doc. 79 at 189-90 (After placing her on leave, Assurance was “saying ... [Rodas] was still employed.”) ]. Rodas also asserts, in her response in opposition to defendants' statement of undisputed material facts, that “she was on FMLA leave when she gave birth and when she was terminated by [Assurance.]” [Doc. 83-1 at 21 (citation omitted) ]; see also [Doc. 87 at 33 (arguing, Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 20 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 21 in her responsive brief, that she was terminated “approximately one month after” she went out on leave) ]. Accordingly, while Rodas may personally regard her removal from Mobis on July 19, 2012, as tantamount to a “termination” of her employment with Assurance, there is no evidence in the record that Rodas' employment was in fact terminated on that date or at anytime before she gave birth in August of 2012, if it was terminated at all. See Thomas v. NCL (Bahamas) Ltd., No. 13-24682-CIV, 2014 WL 3919914, at *4 (S.D. Fla. Aug. 11, 2014) (“Plaintiff's unsubstantiated testimony, based on nothing more than speculative belief, ... is simply insufficient to create an issue of fact for trial.”); Schambeau Props., LP v. Waffle House, Inc., Civil Action 11-0029-WS-B, 2011 WL 6934817, at *6 n.16 (S.D. Ala. Dec. 30, 2011) (citing Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007)) (“[S]peculative, unfounded opinion testimony is not properly considered on summary judgment.”); Farmer v. Dothan City Sch., 1:04-CV-751-MEF, 2006 WL 354323, at *2 n.4 (M.D. Ala. Feb. 15, 2006) (internal marks omitted) (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993)) (noting that “legal conclusions are insufficient to meet the plaintiff's burden of showing that a genuine dispute on a material fact exists”). 22 Rodas also asserts claims of gender-based discrimination and retaliation under § 1981. See [Doc. 1 at 1-2, 5, 21-22]. Section 1981 applies only to discrimination based on race, however, and Rodas does not allege any claim of racial discrimination. See generally [Doc. 1]; see also Hamilton v. Boys & Girls Club of Metro. Atlanta, Inc., No. 1:12-CV-3609- TWT, 2014 WL 4100750, at *7 (N.D. Ga. Aug. 18, 2014), adopted at *1 (citations and internal marks omitted) (citing Ferrill v. Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999)) (“[42 U.S.C. §] 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts[.]”); Williams v. Kimbrough, Civil Action No. 1:12-cv-1570-JEC, 2013 WL 591984, at *2 (N.D. Ga. Feb. 14, 2013) (citations omitted) (noting that “§ 1981 by its terms applies only to racial discrimination,” and “does not protect against gender discrimination, ... or retaliation resulting from complaints [there]of”). Likewise, to the extent Rodas seeks to bring a claim under 42 U.S.C. § 1983, see [Doc. 1 at 2 (alleging violation of “24 [sic] U.S.C. § 1983”) ], any such claim fails because Rodas has not shown the requisite state action, see Gary v. Sysco, No. 5:13cv412/RS-CJK, 2014 WL 1410505, at *2 (N.D. Fla. Apr. 11, 2014) (citations and internal marks omitted) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)) (“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”); see also Sampson v. Rowland, No. CV408-233, 2009 WL 1393444, at *1 (S.D. Ga. May 8, 2009) (dismissing § 1983 claim where plaintiff failed to “allege [ ] that an agent of the government deprived him of his civil rights”). Accordingly, to the extent Rodas asserts claims under 42 U.S.C. §§ 1981 and 1983, it is hereby RECOMMENDED that defendants' motion for summary judgment, [Doc. 78], be GRANTED with respect to those claims. 23 In addition to prohibiting retaliation based on an employee's exercise (or attempted exercise) of her rights under the FMLA, see 29 U.S.C. § 2615(a)(1), the FMLA also prohibits an employer from “ ‘retaliating against an employee for opposing practices made unlawful under the FMLA.’ ” Morrison v. Amway Corp., 336 F. Supp. 2d 1193, 1196 (M.D. Fla. 2003), aff'd 383 F.3d 1253 (11th Cir. 2004); see also Rossi v. Fulton Cnty., Ga., Civil Action File No. 1:10-CV-4254-RWS-AJB, 2013 WL 1213243, at *11 (N.D. Ga. Feb. 13, 2013) (citation omitted) (quoting Smith v. BellSouth Telecomms., Inc., 273 F.3d 1303, 1305-06 (11th Cir. 2001)). Here, Rodas' FMLA retaliation claim is based solely on her purported exercise or attempted exercise of a right protected by the FMLA, and not on any opposition to practices made unlawful under the FMLA. See [Doc. 1 at 16-18 (alleging “retaliation ... for attempting to exercise her federal right”) ]. 24 To the extent Rodas' FMLA interference claim is based on a theory of involuntary leave, see [Doc. 87 at 17 (citation and internal marks omitted) (describing her FMLA interference claim as “an involuntary-leave claim”), 18 (asserting that her interference claim “rests on the fact that [defendants] placed her on involuntary FMLA leave”) ], the Eleventh Circuit has not addressed whether such a theory is actionable under the FMLA, see Grace v. Adtran, Inc., 470 Fed.Appx. 812, 816 (11th Cir. 2012) (per curiam) (unpublished). Indeed, “nothing in the FMLA entitles an employee to determine the start date of her FMLA leave” and, “in the case of a pregnant woman[, ]circumstances may require that FMLA leave begin before the actual date of birth of a child[.]” Id. (alteration omitted) (quoting 29 C.F.R. § 825.120(a)(4)); see also Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d Cir. 2006) (citing 29 U.S.C. § 2611 et seq.) (“The FMLA says nothing about an employer's ability to ‘force’ an employee to take [ ] leave, and [ ] forced leave, by itself, does not violate any right provided by the FMLA,” nor “does [the FMLA] create a right to be free from suspension with or without pay[.]”); Willis v. Coca Cola Enters, Inc., 445 F.3d 413, 417 (5th Cir. 2006) (footnote and citation omitted) (“[I]t is not contrary to the FMLA for an employee to be placed on ‘involuntary FMLA leave.’ ”); Moss v. Formosa Plastics Corp., 99 F. Supp. 2d 737, 741 (M.D. La. 2000) (footnote omitted) (“Nothing in the [FMLA] prevents the employer from requiring an employee to take [ ] leave, if the statutory conditions are otherwise met.”). In any event, even if involuntary leave is actionable under the FMLA, Rodas has failed to establish that she is entitled to relief under that theory because, after being placed on leave in July, 2012, she did not subsequently request additional leave which had been rendered unavailable by the premature Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 21 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 22 use of involuntary leave. See Grace, 470 Fed.Appx. at 816 (declining to “address[ ] whether an involuntary leave theory is actionable under the FMLA,” where, “even under such a theory-[plaintiff] [ ] failed to demonstrate that her claim would be ripe for review,” since she “failed to request additional FMLA leave after [defendant] allegedly forced her to take her FMLA leave prematurely”). 25 Nor has Rodas cited any authority suggesting that an employer's alleged imposition of “involuntary FMLA leave,” [Doc. 87 at 14], upon an employee constitutes an “exercise” or “attempt to exercise” such leave on the part of the employee, see 29 U.S.C. § 2615(a)(1) (making it “unlawful for an[ ] employer to interfere with ... the exercise of or the attempt to exercise, any right provided under this subchapter”), or explained how her alleged termination could have been causally connected to her use of the very leave which defendants' themselves “forced” her to take, see [Doc. 87 at 18]; see also Green, 2010 WL 1796570, at *2 (alteration in original) (citation omitted) (quoting Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir. 2000)) (“In order to establish a prima facie case under the FMLA, [a plaintiff] must show that ‘(1) she availed herself of a protected right; (2) she suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision.’ ”). 26 Indeed, the theory of recovery pursued by Rodas presupposes that she was not in fact eligible under the FMLA. See [Doc. 87 at 13] (arguing that her FMLA claims may proceed on theory of equitable estoppel because defendants “misrepresented.... that [they] were a covered employer ... [and that] Rodas was an eligible employee under [the FMLA]”). 27 See also Gonzales, 2013 WL 179948, at *6 n.3 (citation omitted) (suggesting in dicta that plaintiff “possibly could survive a motion for summary judgment based on a FMLA interference claim due to equitable estoppel,” but noting that “the Eleventh Circuit has not adopted the estoppel doctrine in the FMLA context”); Hills v. Wal-Mart Stores, Inc., No. 08- 23197-CIV, 2010 WL 1839268, at *9 (S.D. Fla. May 6, 2010) (alteration in original) (footnote and citations omitted) (granting summary judgment on plaintiff's FMLA claims where plaintiff argued that “[a]n employer may be estopped from denying leave to an ineligible employee after mistakenly notifying the employee he or she was eligible,” yet “fail[ed] to point to any Eleventh Circuit precedent whatsoever in support of this legal contention”); Green, 2010 WL 1796570, at *4 (citations omitted) (citing Brungart, 231 F.3d at 797 n. 4) (“Noteworthy is the fact that the Eleventh Circuit has not applied the estoppel doctrine to the FMLA.”); Peery v. CSB Behavioral Health Sys., No. CV106-172, 2008 WL 4425364, at *13 (S.D. Ga. Sept. 30, 2008) (“Based on [ ] persuasive authority [in the Eleventh Circuit], this Court sees no reason to apply the doctrine [of equitable estoppel to plaintiff's FMLA claims].”); Hegre v. Alberto-Culver USA, Inc., No. CV 105-031, 2007 WL 1481896, at *1 n.1 (S.D. Ga. May 15, 2007) (citations omitted) (finding “it [ ] doubtful that the doctrine of equitable estoppel may be applied in FMLA cases”); Martin v. Brevard Cnty. Pub. Schs., No. 6:05-cv-971-Orl-22KRS, 2007 WL 496777, at *10 (M.D. Fla. Feb. 13, 2007), vacated on other grounds, 543 F.3d 1261 (11th Cir. 2008) (per curiam) (citation omitted) (“Until the Eleventh Circuit mandates differently, this Court finds no reason to apply the estoppel doctrine to the FMLA.”); Pennant v. Convergys Corp., 368 F. Supp. 2d 1307, 1313 (S.D. Fla. 2005) (“There is no support from the Eleventh Circuit for applying the [estoppel] doctrine in FMLA cases.... Absent a directive from the Eleventh Circuit, this Court declines to apply the doctrine.”). 28 Notably, the standard for equitable estoppel in this circuit specifically requires that the party asserting the estoppel neither knew “nor should [ ] have known” the true facts, but similar language is conspicuously lacking with respect to the party to be estopped, which must simply have been “aware of the true facts[.]” Martin, 543 F.3d at 1266 n.2 (emphasis added) (citation and internal marks omitted). 29 The parties also dispute whether Schwartz and Whetstone may be held individually liable under the FMLA. See [Doc. 78-1 at 15-16; Doc. 87 at 28-31]; see also Downs, 2014 WL 4264849, at *6 n.7 (citation and internal marks omitted) (quoting Wascura v. Carver, 169 F.3d 683, 685 (11th Cir. 1999)) (noting that “individuals such as corporate officers ‘acting in the interest of an employer’ are individually liable for any violations of the FMLA”). Because summary judgment is due to be granted on Rodas' FMLA claims for the reasons discussed above, the Court does not reach the issue of whether Schwartz and Whetstone may be sued in their individual capacities under the FMLA. 30 While Rodas asserts separate claims of gender discrimination and pregnancy discrimination under Title VII, see [Doc. 1 at 19-21], defendants rightly point out that these claims are duplicative as they are both premised on Rodas' allegations that she was treated differently because of her pregnancy, see [Doc. 78-1 at 16-17]; see also Abernathy v. Sci Applications Int'l Corp., No. 1:11-cv-03805-AKK, 2013 WL 6904089, at *10 (N.D. Ala. Dec. 31, 2013) (citations omitted) (“Rather than introducing new substantive provisions protecting the rights of pregnant women, the PDA brought discrimination on the basis of pregnancy within the existing statutory framework prohibiting sex-based discrimination.”). Because Rodas does not assert a gender discrimination claim that is distinct from her pregnancy discrimination claim, see [Doc. 1 at 19-24], the Court construes Rodas' Title VII claims of pregnancy discrimination and gender discrimination as a single claim of pregnancy discrimination under Title VII, see Claude-Morency v. Univ. of Miami, No. 12-21967-CIV, 2013 WL 5333140, at Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 22 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 23 *1 n.1 (S.D. Fla. Sept. 23, 2013) (considering plaintiffs' claims of pregnancy discrimination and gender and discrimination under Title VII under the single theory of pregnancy discrimination, where, based on the record before the Court, the two claims were “indistinct”). Alternatively, Rodas' duplicative claim of gender discrimination is subject to being dismissed as moot. See Anderson v. Dunbar Armored, Inc., 678 F. Supp. 2d 1280, 1316 n.24 (N.D. Ga. 2009), adopted at 1289 (dismissing Title VII plaintiff's duplicative claim as moot while granting defendants' motion for summary judgment). 31 The analysis required for a pregnancy discrimination claim is the same type of analysis used in other Title VII sex discrimination suits, Holland v. Gee, 677 F.3d 1047, 1054-55 (11th Cir. 2012) (citing Armindo, 209 F.3d at 1320); see also Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312-13 (11th Cir. 1994); Maddox v. Grandview Care Ctr., Inc., 780 F.2d 987, 989 (11th Cir. 1986), and the ultimate question is whether defendants discriminated against Rodas because of her pregnancy, see Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012). 32 Rodas has testified that she was terminated by Assurance, see [Doc. 79 at 207; Doc. 83-3 at 8-9], and the termination of a plaintiff's employment is certainly an actionable adverse employment action, see Blue v. Dunn Constr. Co., 453 Fed.Appx. 881, 884 (11th Cir. 2011) (per curiam) (unpublished) (citation omitted). Additionally, Rodas asserts that her placement on leave “resulted in significant monetary loss,” in that her “[p]re-leave ... income of approximately $1,200.00 [ ] every two weeks ... was reduced to a little over $300 ... weekly ... due to her collecting unemployment benefits.” [Doc. 87 at 15-16]. As there is no evidence that Rodas was paid by Assurance while she was on leave, see [Doc. 79 at 99 (Whetstone told Rodas to file for unemployment so that Rodas “could get paid” for the time she was out on leave); Doc. 83-3 at 7-8 (Rodas alleging that, “[w]hen [Assurance] put [her] on FMLA leave, they told [her] to apply for unemployment”); Doc. 83-10 (letter given to Rodas by Assurance for use in filing for unemployment) ]; see also [Doc. 78-7 at 5, 14-15 (Assurance employment records showing no hours for Rodas as of the calendar week beginning July 22, 2012) ], the Court likewise finds that Rodas' placement on unpaid leave is an adverse employment action for purposes of her Title VII claim of pregnancy discrimination. See Morales v. Ga. Dep't of Human Res., Civil Action No. 7:08-CV-156 (HL), 2010 WL 4639279, at *13 (M.D. Ga. Nov. 8, 2010), aff'd 446 Fed.Appx. 179 (11th Cir. 2011) (per curiam) (unpublished) (footnote omitted) (adverse employment action found where employer placed plaintiff on FMLA leave that “was in effect ... leave without pay”); Wingfield v. S. Univ. of Fla., Inc., No. 8:09-cv-01090-T-24-TBM, 2010 WL 2465189, at *13 (M.D. Fla. June 15, 2010) (alteration omitted) (finding plaintiff's unpaid sick leave to be an adverse employment action that “altered [her] compensation, as well as the terms, conditions and privileges of her employment”); Knight v. Computer Scis. Raytheon (CSR), No. 6:00-cv-1563-Orl-28-DAB, 2002 WL 32818520, at *14 (M.D. Fla. Oct. 25, 2002) (“[B]eing placed on unpaid suspension and unpaid medical leave can be considered adverse employment actions.”). 33 See also Johnson v. Nicholson, No. 05-13259, 2005 WL 3199278, at *3 (11th Cir. Nov. 30, 2005) (per curiam) (unpublished) (citation omitted) (“[T]o be direct evidence, the remark must indicate that the employment decision in question was motivated by an impermissible factor.”); Spellen v. Univ. of Ala. at Birmingham, No. 2:08-cv-01331-HGD, 2012 WL 1745544, at * (N.D. Ala. Mar. 16, 2012), adopted by 2012 WL 1745540, at *1 (N.D. Ala. May 16, 2012) (citation omitted) (noting that “direct evidence,” for purposes of summary judgment in employment discrimination cases, “has come to mean statements: (a) made by an employer's decision-makers that reflect a bias against the plaintiff's protected class, and (b) which are closely connected to the adverse employment action at issue either logically (having a cause and effect relationship) or temporally (having been made shortly before or after the employment action, or both)”). 34 That the discriminatory purpose of removing pregnant workers from Mobis may have originated with Kim is immaterial. “An employer may no more engage in overt [pregnancy] discrimination in order to accommodate the requests of a third party ... than to perpetuate its own discriminatory animus[,] [n]or may an employer absolve itself from liability for its own act of [ ] discrimination by shifting the blame to an outside party who instigated the practice that the employer implemented.” Locascio v. BBDO Atlanta, Inc., Civil Action File No. 1:14-cv-00207-TWT-RGV, at [Doc. 11 at 2 (citations omitted) ] (N.D. Ga. Aug. 1, 2014), adopted at [Doc. 20] (N.D. Ga. Oct. 20, 2014). See also Smith v. CH2M Hill, Inc., 521 Fed.Appx. 773, 775 (11th Cir. 2013) (per curiam) (unpublished) (Title VII discrimination claim held plausible where plaintiff alleged that third party, motivated by discriminatory animus, “demanded” that defendant-employers terminate plaintiff's employment, and that employers “complied and terminated [plaintiff] with full knowledge of the discriminatory motive”); Brooks v. D.C. 9 Painters Union, No. 10 Civ. 7800(JPO), 2013 WL 3328044, at *4 n.2 (S.D.N.Y. July 2, 2013) (noting that discriminatory conduct by someone other than employer may be attributable to the employer if the employer “actively facilitated such discrimination or in some other manner participated in it”). 35 Even if Whetstone's comments did not amount to direct evidence of pregnancy discrimination, the comments constitute circumstantial evidence sufficient to support a prima facie case of pregnancy discrimination with respect to Rodas' placement on leave. See Johnson v. Gwinnett Cnty. Sch. Dist., Civil Action No. 1:11-CV-00471-TWT-RGV, 2012 WL 5987584, at *9 n.37 (N.D. Ga. Oct. 17, 2012), adopted by 2012 WL 5987581, at *1 (N.D. Ga. Nov. 28, 2012) (citing Steger Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 23 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 24 v. Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003)) (“[D]iscriminatory comments by decision makers, even if they do not qualify as direct evidence of discrimination, may be circumstantial evidence of discrimination [.]”); Collins v. Supreme Beverage Co., Civil Action No. 11-AR-0058-S, 2012 WL 4953155, at *5-7 (N.D. Ala. Oct. 12, 2012) (holding that, “even if the court is wrong in finding direct evidence of animus,” plaintiff nonetheless presented sufficient circumstantial evidence to support a prima facie case of employment discrimination); Jackson v. City of Centreville, No. 7:09-cv-02115-JEO, 2012 WL 4482393, at *25 (N.D. Ala. Aug. 16, 2012) (alterations in original), adopted by 899 F. Supp. 2d 1209, 1229-30 (N.D. Ala. Sept. 24, 2012) (quoting Rojas v. Florida, 285 F.3d 1339, 1342-43 (11th Cir. 2002) (per curiam)) (“ ‘Remarks [that are] isolated and unrelated to the challenged employment decision [ ] are not direct evidence of discrimination ..., [but] such comments can contribute to a circumstantial case for pretext.’ ”). Rodas has also presented sufficient circumstantial evidence-including Whetstone's comments during the June 18, 2012, telephone conversation, defendants' disparate explanations for placing Rodas on leave in the letters signed by Whetstone in July of 2012, see [Docs. 83-8 & 83-10], and the lack of any negative performance evaluations or prior disciplinary actions taken against Rodas-to create a genuine issue of fact as to whether Assurance's proffered legitimate, non-discriminatory reasons for placing Rodas on maternity leave are pretext for unlawful pregnancy discrimination. See Taylor v. Cardiovascular Specialists, P.C., Civil Action File No. 1:11-cv-04521-TCB, at [Doc. 62 at 84] (N.D. Ga. Dec. 11, 2013), adopted by 4 F. Supp. 3d 1374, 1383 (N.D. Ga. 2014) (quoting Cichewicz v. UNOVA Indus. Auto. Sys., Inc., 92 Fed.Appx. 215, 220-21 (6th Cir. 2004) (unpublished)) (“ ‘As a number of courts have explained, evidence of pretext may consist of a defendant's changing explanations.’ ”); Haynes v. Twin Cedars Youth & Family Servs., Inc., No. 5:10-CV-321 (CAR), 2012 WL 895699, at *11 (M.D. Ga. Mar. 15, 2012) (citation omitted) (“Indeed, the absence of disciplinary documentation may indicate pretext.”); Halford v. Westpoint Home, Inc., Civil Action No. 2:09cv689-MHT, 2010 WL 3169356, at *7 (M.D. Ala. Aug. 11, 2010) (quoting Wilson, 376 F.3d at 1092) (“ ‘[E]vidence of pretext may include ... the same evidence offered initially to establish the prima facie case.’ ”). 36 The fact that Rodas was no longer pregnant at the time of her alleged termination is of no moment under the facts of this case. See Piraino v. Int'l Orientation Res., Inc., 84 F.3d 270, 274 (7th Cir. 1996) (rejecting argument that the fact that plaintiff was no longer pregnant at the time of the adverse action precluded her pregnancy discrimination claim where there was evidence that the plaintiff's “earlier pregnancy” played a role in the employer's decision to take the later adverse action). 37 Even if the Court found that Assurance stated a legitimate, non-discriminatory reason for Rodas' termination based on her work performance, the circumstantial evidence of pregnancy discrimination arising from Whetstone's comments during the June 18, 2012, telephone conversation, coupled with the absence of any disciplinary records or poor performance evaluations of Rodas along with the differing reasons stated in the letters Assurance provided to Rodas at the time it placed her on leave in July, 2012, and the conflicting evidence as to whether she was even terminated are sufficient to present a genuine issue of material fact regarding pretext and thus preclude granting summary judgment for Assurance. See Blackledge v. Ala. Dep't of Mental Health & Mental Retardation, Civil Action No. 2:06cv321-ID, 2007 WL 3124452, at *24 (M.D. Ala. Oct. 25, 2007) (citation omitted) (citing Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 935 (11th Cir. 1995)) (“Shifting or inconsistent explanations by the decisionmaker also can constitute evidence of pretext.”); Harper v. ULTA Salon Cosmetics & Fragrance, Inc., Civil Action File No. 1:05-CV-1285-TWT, 2007 WL 528088, at *16 (N.D. Ga. Feb. 13, 2007) (citing Wascura v. City of S. Miami, 257 F.3d 1238, 1245 (11th Cir. 2001)) (“A plaintiff may establish pretext by showing that there were a lack of ... disciplinary reports in an employee's personnel file.”); Stough v. Inns, Civil Action No. 3:05CV421-SRW, 2006 WL 2009087, at *5 (M.D. Ala. July 17, 2006) (alteration and citation omitted) (citing Damon v. Fleming Supermkts of Fla., Inc., 196 F.3d 1354, 1362 (11th Cir. 1999)) (“Comments or remarks that suggest discriminatory animus can be sufficient circumstantial evidence to establish pretext.”). 38 Assurance also argues that Rodas did not suffer a materially adverse action because she “was never terminated and her suspension was merely temporary.” See [Doc. 78-1 at 23]. However, because Rodas has presented evidence that she was, in fact, told that she had been terminated, and because the threat of suspension or involuntary leave could easily “dissuade a reasonable worker from making or supporting a charge of discrimination,” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006), Assurance's argument is without merit, and the Court finds that Rodas' placement on leave and her alleged termination constitute materially adverse actions for purposes of her prima face case of retaliation. 39 Rodas does not, and cannot, assert a viable retaliation claim under the participation clause since she did not file her EEOC charge until September 11, 2012, after her alleged termination-the last materially adverse action of which she complains-had already occurred. See [Doc. 79-5 at 2]; see also Cobb v. TSE Telecomms. Serv., Inc., 172 Fed.Appx. 293, 294 (11th Cir. 2006) (per curiam) (unpublished). 40 Lopez expressly denied that Rodas voiced any sort of objections to Whetstone's directive, see [Doc. 83-7 at 79-80 (testifying that Rodas did not tell Whetstone that she thought the decision to end Lopez's assignment on the basis of Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 24 of 25 Rodas v. Assurance Quality Group, Inc., Slip Copy (2014) 2014 WL 12479989 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 25 pregnancy was wrong or in violation of the law or Assurance policy, and that Rodas made no effort to “protect” Lopez, but instead simply “d[id] what she was told”) ]. 41 Furthermore, when Rodas was asked whether she had “ever” informed Whetstone that she thought Assurance was engaged in discriminatory employment practices, she responded only that she had done so when speaking on the phone with Whetstone in August of 2012, well after the telephone conversation of June 18, 2012. See [Doc. 79 at 206-09]. 42 Rodas also testified that, upon being told by Whetstone that she was terminated sometime after she gave birth in August, 2012, she responded by referencing a “ ‘lawsuit’ ” and complaining that Whetstone was “supposed to hold [her] job when [she] was out.... on [ ] leave.” [Doc. 79 at 207-08]; see also [id. at 69]. Even if these remarks by Rodas are protected opposition, however, Rodas has failed to establish the requisite causal connection, because the remarks were made only after she was allegedly terminated. See Combee v. Circle K Stores, Inc., No. 8:11-cv-108-T-33MAP, 2012 WL 171086, at *4 (M.D. Fla. Jan. 20, 2012) (“There is no causal nexus between the protected activity and the termination because Plaintiff made the call to the hotline and filed his Charge after he was terminated.”); see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533-34 (2013) (To show a causal connection, a Title VII retaliation plaintiff “must establish that ... her protected activity was a but-for cause of the alleged adverse action by the employer,” such that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.”). End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 4:17-cv-00237-MWB Document 7-3 Filed 06/06/17 Page 25 of 25 Lozosky v. Keystone Business Products, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 4727073 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 4727073 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Patricia LOZOSKY, Plaintiff v. KEYSTONE BUSINESS PRODUCTS, INC., Defendant. Civil Action No. 3:13-0512. | Signed Aug. 10, 2015. Attorneys and Law Firms C. David Pedri, Luzerne Countny Solicitor's Office, Wilkes-Barre, PA, Jonathan A. Lang, Slocum & Lang, P.C., Scranton, PA, Susan M. Sernak-Martinelli, Usutynoski & Marusak, LLC, Hazleton, PA, for Plaintiff. Michael J. Piosa, Law Office of Michael J. Piosa, Allentown, PA, Robert Eric Hall, Law Offices of R. Eric Hall, PC, Macungie, PA, for Defendant. MEMORANDUM MALACHY E. MANNION, District Judge. *1 Pending before the court is plaintiff's motion for leave to file a first amended complaint. (Doc. 48 ). In her initial complaint, plaintiff brought claims for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., and sex discrimination and sexual harassment under 42 U .S.C. § 2000e, Title VII of the Civil Rights Act, Counts I-IV, respectively. (Doc. 1 ). Defendants moved for dismissal of the Title VII claim for sexual harassment (Count IV) for failure to state a claim and on October 23, 2013, this claim was dismissed without prejudice to the plaintiff filing an amended complaint. Plaintiff did not timely filed an amended complaint regarding her Title VII sexual harassment claim. Several extensions of discovery have been granted and the close of discovery is now October 1, 2015. Based on the evidence adduced during discovery, plaintiff moves to amend her complaint seeking to add two new defendants, to plead causes of action of piercing the corporate veil and fraudulent conveyance, and to more specifically plead her Title VII sex discrimination claim. The plaintiff's motion to amend her complaint will be GRANTED, IN PART, and DENIED, IN PART. I. BACKGROUND In her original February 22, 2013 complaint, plaintiff Patricia Lozosky alleges that she was employed as a salesperson by defendant Keystone Business Products, Inc. (“Keystone”), making sales in Luzerne County and other areas of Northeast Pennsylvania and working at least some of the time from her home. Keystone's main place of business is in Bethlehem, Pennsylvania. (Doc. 1, at ¶¶ 2,7). She worked for Keystone from October 1992 until December 29, 2011, when she was ordered by her supervisor to attend a meeting with the owner of the company, Louis Morda, at his home. (Id. at ¶¶ 7, 9). Plaintiff alleges that at the meeting, Morda accused her of suffering from alcoholism, and ordered her to attend an alcohol rehabilitation program or face having her employment status changed to that of a “commission only” salesperson without benefits, health insurance, and out-of-pocket expense reimbursement. (Id. at ¶¶ 11-12). Plaintiff alleges that her denial of having an alcohol problem and refusal to attend a rehab program resulted in her being immediately demoted to “commission only,” and then subsequently fired on January 6, 2012. (Id. at ¶¶ 17, 19). Plaintiff additionally alleges that she was fifty-one at the time, and that she was terminated by the company because it intended to replace her with a younger, less senior worker. (Id. at ¶¶ 36-37). She additionally alleges that she was terminated and replaced with a less qualified male employee. (Id. at ¶ 52). During her tenure at Keystone, she avers that she was often the only female salesperson employed, and was subjected to conversations among other employees, including Morda, laced with sexual profanity. (Id. at ¶¶ 6465). Plaintiff also alleges that Morda often greeted her with unwanted hugs and kisses on the lips or cheeks, to which she felt forced to submit because Morda was her boss. (Id. at ¶¶ 61, 63). Plaintiff finally alleges that on December 29, 2011, when she attended her private meeting with Morda, he told her that they were alone, greeted her with a hug and kiss, and sat directly next to her. (Id. at ¶¶ 68, 71). *2 Plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission, Case 4:17-cv-00237-MWB Document 7-4 Filed 06/06/17 Page 1 of 8 Lozosky v. Keystone Business Products, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 4727073 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 and received a notice of a right to sue dated November 30, 2012. (Id. at ¶ ¶ 6, 34, 46, 67). Plaintiff now moves to amend her complaint to add Louis Morda and his wife Mary Louise Morda as defendants, to add new state law claims of piercing the corporate veil and fraudulent conveyance under the Pennsylvania Uniform Fraudulent Conveyance Act (“PUFTA”), 12 Pa.C.S.A. § 5101, et seq., and to plead her federal sex discrimination claim with more specificity. Plaintiff filed her brief in support of her motion with exhibits, (Doc. 52 ), and defendant has filed its brief in opposition with exhibits, (Doc. 54 ). Plaintiff did not file a reply brief. The court has jurisdiction over plaintiff's federal claims under 28 U.S.C. § 1331, and it can exercise supplemental jurisdiction over her proposed state law claims under 28 U.S.C. § 1367. II. MOTION TO AMEND STANDARD The plaintiff's motion to amend is brought pursuant to the provisions of Fed.R.Civ.P. 15. The filing of an amended complaint is governed by Fed.R.Civ.P. 15(a): (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. Fed.R.Civ.P. 15(a). This court's Local Rules require that a proposed amended pleading must accompany a motion. See Local Rule 15.1(a). The “amended pleading must be retyped or reprinted so that it will be complete in itself”. Id. Plaintiff attached a proposed amended complaint to her instant motion. (Doc. 48-2). The United States Court of Appeals for the Third Circuit has adopted a liberal approach to the amendment of pleadings in order to ensure that “a particular claim will be decided on the merits rather than on technicalities.” Dole v. Arco Chem. Co., 921 F.2d 484, 486-87 (3d Cir.1990). Amendment, however, is not automatic. See Dover Steel Co., Inc. v. Hartford Accident and Indent., 151 F.R.D. 570, 574 (E.D.Pa.1993). Leave to amend should be granted absent a showing of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also Oran v. Stafford, 226 F.3d 275, 291 (3d Cir.2000). Futility of amendment occurs when the complaint, as amended, does not state a claim upon which relief can be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (“In assessing ‘futility,’ the district court applies the same standard of legal sufficiency as applies under Rule 12(b)(6).”). If the proposed amendment “is frivolous or advances a claim or defense that is legally insufficient on its face, the court may deny leave to amend.” Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J.1990). III. DISCUSSION A. Piercing the Corporate Veil *3 Plaintiff seeks to add Louis Morda, President, owner and sole shareholder of Keystone, and Mary Louise Morda, Vice President/Secretary of Keystone, as defendants in their individual capacity. Keystone is a closely-held, Subchapter S corporation, family business. The new proposed Count IV of plaintiff's amended complaint is a claim styled “Piercing the Corporate Veil.” 1 Plaintiff alleges that Mr. Morda is the alter ego of Keystone. Plaintiff also seeks to add Mrs. Morda in her proposed Count IV despite the fact that Mrs. Morda is not an owner of Keystone. Plaintiff states that the new claim against both Mr. Morda and Mrs. Morda arose out of the conduct, transaction or occurrence set forth in the original pleading, i.e., involving the processing and handling of her employment with Keystone, including her demotion and alleged termination. Plaintiff also states that Mr. Morda and Mrs. Morda, as officers of Keystone have been involved in this litigation since the beginning and have had notice of this action, and that they were the primary actors in her demotion and termination. Plaintiff further alleges that the Mordas acted outside their capacities as officers of the corporation and, should be named as defendants Case 4:17-cv-00237-MWB Document 7-4 Filed 06/06/17 Page 2 of 8 Lozosky v. Keystone Business Products, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 4727073 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 individually. Specifically, plaintiff alleges that Mr. Morda had a private meeting with her at his residence and that Mrs. Morda wrote a letter to the “Valued Customers” of Keystone advising them that plaintiff was replaced by two male employees allegedly under 40. Additionally, plaintiff alleges the Mordas disseminated her private, confidential information to their daughter, Maria Bear, without her knowledge or consent, in violation of company policies set forth in the Employee Handbook and her right to privacy. The “ ‘classical’ piercing of the corporate veil is an equitable remedy whereby a court disregards ‘the existence of the corporation to make the corporation's individual principals and their personal assets liable for the debts of the corporation.’ “ In re Blatstein, 192 F.3d 88, 100 (3d Cir.1999) (citation omitted). The Court in Van Doren v. Coe Press Equip. Corp., 592 F.Supp.2d 776, 796 (E.D.Pa.2008), stated: Piercing the corporate veil “was a doctrine originally designed by the courts to protect innocent parties by treating the corporation and its shareholders, [ ], as identical for purposes of suit.” Kiehl v. Action Mfg. Co., 517 Pa. 183, 535 A.2d 571, 574 (1987). Under Pennsylvania law, “[t]here is a strong presumption against piercing the corporate veil ... [and][a]ny court must start from the general rule that the corporate entity should be recognized and upheld, unless specific, unusual circumstances call for an exception.” Limax Indus. v. Aultman, 543 Pa. 38, 669 A.2d 893, 895 (1995) (citations omitted). The factors that Pennsylvania courts consider in deciding whether to pierce the corporate veil include “undercapitalization, failure to adhere to corporate formalities, substantial intermingling of corporate and personal affairs and use of the corporate form to perpetrate a fraud .” Id. at 895. *4 Thus, as Keystone states, “piercing of the corporate veil [a/k/a the alter ego theory] postulates that the owner of a corporation and the corporation itself are, for all intents and purposes, one in the same and that, therefore, the owner personally shares in the liabilities of the corporation.” (Doc. 54, at 4). However, the alter ego theory does not apply to a non-owner officer of a corporation. See Eastern Minerals & Chemicals Co. v. Mahan, 225 F.3d 330, 333 n. 7 (3d Cir.2000) (“The alter ego theory comes into play in piercing the corporate veil when one seeks to hold liable an individual owner who controls the corporation.”) (citations omitted); Advanced Tel. Sys., Inc. v. Com-Net Prof'l Mobile Radio, LLC, 846 A.2d 1264, 1278 (Pa.Super.Ct.2004) (The alter ego theory of piercing the corporate veil “is applicable when ‘the individual or corporate owner controls the corporation to be pierced and the controlling owner is to be held liable.’ ”) (quoting Good v. Holstein, 787 A.2d 426, 430 (Pa.Super.Ct.2001). As such, plaintiff's motion to add Mrs. Morda as a defendant in Count IV will be denied since the proposed amendment as against her would be futile because piercing of the corporate veil theory does not apply to a non-owner of Keystone. Mr. Morda is the President, sole shareholder and owner of Keystone, and Keystone has no board of directors and held no board meetings. The proposed amendment to add a piercing the corporate veil count as against Mr. Morda under an alter ego theory of liability will be granted. Plaintiff bears a difficult burden to persuade the court to pierce the corporate veil of Keystone. Pearson v. Component Tech. Corp., 247 F.3d 471, 485 (3d Cir.2001). “Pennsylvania courts presume the legitimacy of the corporate form and will not pierce the veil unless exceptional circumstances warrant such an exceptional remedy.” Accurso v. Infra-Red Servs., Inc., 23 F.Supp.3d 494, 509 (E.D.Pa.2014) (citation omitted). “The Third Circuit alter ego test [ ] requires that the court look to the following factors: gross undercapitalization, failure to observe corporate formalities, nonpayment of dividends, insolvency of debtor corporation, siphoning of funds from the debtor corporation by the dominant stockholder, nonfunctioning of officers and directors, absence of corporate records, and whether the corporation is merely a facade for the operations of the dominant stockholder.” Pearson, 247 F.3d at 484-485. “Under the ‘alter ego’ veil piercing subtheory-which is ‘applicable when’ ‘the individual or corporate owner controls the corporation to be pierced and the controlling owner is to be held liable,’ [ ] the party that seeks to pierce the corporate veil must show that the ‘lack of [corporate] formalities led to some misuse of the corporate form[.]’ “ Accurso, 23 F.Supp.3d 509- 510 (internal and external citations omitted). To pierce the corporate veil of Keystone, plaintiff must show that Keystone's “affairs and personnel were manipulated to such an extent that it became nothing more than a sham used to disguise the alter ego's [Mr. Morda's] use of its assets for his own benefit in fraud of its creditors.” Id. at 510 (quoting Kaplan v. First Options of Chi., Inc., 19 F.3d 1503, 1521 (3d Cir.1994). “In short, the evidence Case 4:17-cv-00237-MWB Document 7-4 Filed 06/06/17 Page 3 of 8 Lozosky v. Keystone Business Products, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 4727073 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 must show that the corporation's owners abused the legal separation of a corporation from its owners and used the corporation for illegitimate purposes.” Id. (quoting Kaplan, 19 F.3d at 1521). *5 “Although veil-piercing is not a separate cause of action, but rather a basis for a cause of action against particular individuals, [ ], a court ‘must examine ... whether the facts pleaded ... state a cause of action on a theory of piercing the corporate veil.’ “ Id. (citation omitted); see also Blatstein, 192 F.3d at 100 (Alter- ego liability is an “equitable remedy whereby a court disregards the existence of the corporation to make the corporation's individual principals and their personal assets liable for the debts of the corporation.”). Thus, in order for plaintiff's veil-piercing claim against Mr. Morda to proceed, she must have “pled the quantum of facts necessary to give rise to the reasonable inference that the alter ego test could be satisfied.” Id. (citation omitted). Mr. Morda bought the assets of 3M for about $500,000.00, which was financed by the owners of 3M, and incorporated Keystone in December of 1982. Plaintiff contends that Mr. Morda was in complete dominion and control over Keystone, kept the corporate kit at his residence, and failed to adhere to corporate formalities. Plaintiff also states that there was a substantial intermingling of corporate and personal affairs inasmuch as Mr. Morda made many unilateral decisions, including, interviewing all of the prospective employees, directing how to handle all personnel matters, hiring and firing all employees, setting employees' territories, and setting all salaries. Plaintiff further alleges that both Mordas commingled their personal accounts with Keystone's and paid some of their personal expenses from the accounts of Keystone. Thus, plaintiff maintains that Keystone was merely a facade for the operations of Mr. Morda. Keystone argues that in small, closely-held or family corporation such as Keystone, the lack of corporate formalities “are considered of little consequence.” Zubik v. Zubik, 384 F.2d 267, 271 n. 4 (3d Cir.1967), aff'd, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Keystone maintains that the facts of this case “are strikingly similar to those in Zubik. Louis Morda is 72 years old and he owned and operated Keystone for over thirty-two (32) years. Mr. Morda has always operated the business under a closely-help corporate structure, which at no time was conceived or maintained so as to perpetrate fraud on either Plaintiff or the community at large.” (Doc. 54, at 8). Keystone,(Doc. 54, at 8), concludes: As acknowledged by Plaintiff, Louis Morda formed the corporate entity known as “Keystone Business Products, Inc.” in 1982, long before Plaintiff was even employed at Keystone. Keystone was not formed “as a sham to disguise the alter ego's use of its assets for his own benefit in fraud of its creditors.” Blatstein, 192 F.3d [88] at 100 [ (3d Cir.1999) ]. Moreover, Plaintiff is not yet a creditor of Keystone, [ ]. Hence, [ ], the proposed amendment would prove premature and futile and, therefore, leave should not be granted. *6 Plaintiff has alleged enough facts in her proposed amended complaint to state a cognizable theory of veil piercing necessary to permit this claim to proceed against Mr. Morda. Plaintiff has met the stringent burden to pierce the corporate veil since she has alleged that Mr. Morda abused the legal separation between himself and Keystone and used Keystone and its assets for improper purposes. See Clientron Corp. v. Devon IT, Inc., 2015 WL 70921 E.D.Pa. Jan. 05, 2015). Moreover, there are exceptional circumstances to warrant piercing Keystone's corporate veil and holding Mr. Morda personally liable for Keystone's obligations since he sold all the assets of Keystone to a third party, Stratix, on December 12, 2014, and Keystone was denied insurance coverage regarding plaintiff's discrimination claims. As such, plaintiff's motion to add Mr. Morda as a defendant in this case will be granted and plaintiff's new Count IV in her proposed amended complaint will be permitted as against Mr. Morda. See Clientron Corp. v. Devon IT, Inc., supra. B. FRAUDULENT CONVEYANCE Plaintiff seeks to amend her complaint and add a new Count V in her proposed amended complaint to plead the cause of action of fraudulent conveyance under PUFTA. Plaintiff alleges that Mr. Morda and Mrs. Morda failed to disclose to her the sale of all Keystone's assets after she filed this action and then absconded to Florida. Specifically, in Count V of her proposed amended complaint, plaintiff alleges: Case 4:17-cv-00237-MWB Document 7-4 Filed 06/06/17 Page 4 of 8 Lozosky v. Keystone Business Products, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 4727073 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 135. Upon information and belief, sometime after Defendants' discriminatory acts against Plaintiff, Defendants, Louis Morda and Mary Louise Morda, submitted Plaintiff's employment discrimination claims to their insurance carrier, Allied Insurance Company, who denied coverage for Defendants' failure to timely submit the claim to their carrier. 136. Upon information and belief, Defendants, Louis Morda, in his President and/or Secretary, on behalf of Defendant, Keystone, began negotiations with Stratix sometime shortly after the within lawsuit was filed and Defendant's, Keystone, insurance claim for coverage in this matter was denied. 137. On or about December 12, 2014, Defendants, Louis Morda, in his capacity as President, and sole shareholder, and Mary Louise Morda, in her capacity as Vice-President and/or Secretary, on behalf of Defendant, Keystone, sold all the assets of Defendant, Keystone, to a third party, Stratix. 138. Defendants, Louis Morda and Mary Louise Morda, concealed the transfer and sale of the assets of Defendant, Keystone. 139. The aforesaid concealment was for the sole purpose of hindering Plaintiff in this action. 140. Plaintiff discovered the sale of the assets of Defendant, Keystone, through her current employer, Jay's Business Solutions, who was her former District Sales Manager while employed at Defendant, Keystone. 141. The transfer was for all of the assets of Defendant, Keystone. 142. The sole purpose of the transfer of the assets of Defendant, Keystone, by Defendants, Louis Morda and Mary Louise Morda, was to prevent Plaintiff from collecting on her claim in the event of a successful judgment, and, therefore, making Defendants, Louis Morda and Mary Louise Morda, “judgment proof”. *7 (Doc. 48-2, at 35-37). In her brief, plaintiff states that “[t]he timing of the filing of Plaintiff's Complaint and the sale [of Keystone], the negotiations of which took place earlier, along with the other factors, such as, failing to disclose the transfer, absconding to Florida, and selling all of the assets of the corporation, supports the conclusion that Defendant, Keystone, acted with fraudulent intent under § 5104(a) (1),....” (Doc. 52, at 21). Plaintiff seeks to assert a claim against Mr. Morda and Mrs. Morda under PUFTA based on actual fraud which provides that a transfer or obligation incurred by a debtor is fraudulent as to present and future creditors “if the debtor made the transfer or incurred the obligation: ... with actual intent to hinder, delay or defraud any creditor of the debtor.” 12 Pa.C.S.A. § 5104(a) (1). “The existence of fraudulent intent may be inferred from all facts and circumstances surrounding the conveyance.” Tiab Commc'ns Corp. v. Keymarket of Nepa, Inc., 263 F.Supp.2d 925, 934 (M.D.Pa.2003). Since plaintiff, in her proposed Count V, (Doc. 48-2, ¶ 133), has listed the factors in § 5104(b) which are considered to determine if the debtor actually intended to defraud a creditor, they are not repeated. Plaintiff alleges sufficient facts, at this stage of the litigation, to support her claim that Mr. Morda sold all of the assets of Keystone to Stratix for about $1.3 million with the intent of hindering her in this case and to prevent her from collecting any judgment she may obtain. As such, the proposed amended complaint states an actual fraud claim upon which relief can be granted under PUFTA only as against Mr. Morda the sole owner of Keystone. See Golf Cart Services, Inc. v. Kabro Associates, LLC, 2013 WL 3524673, *4-*6 (M.D.Pa. July 11, 2013). Keystone maintains that plaintiff may never be a creditor of Keystone if she does not prevail on the merits of her discrimination claims and that her proposed new claims of piercing the corporate veil and fraudulent conveyance are premature until she actually obtains a judgment against Keystone. Keystone states that allowing plaintiff's proposed amendments with respect to her claims of piercing the corporate veil and fraudulent conveyance will confuse the issues for the jury, and will create undue prejudice and hardship for it. Keystone contends that plaintiff will not be prejudiced if she is made to wait on these two state law claims until she obtains a judgment on her federal claims since there is a four-year statute of limitations from the date of judgment on a claim of piercing the corporate veil and a two-year statute of limitations from the date of judgment on a claim of fraudulent conveyance. Case 4:17-cv-00237-MWB Document 7-4 Filed 06/06/17 Page 5 of 8 Lozosky v. Keystone Business Products, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 4727073 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 While Keystone is correct as to the statute of limitations, see Madonna v. Francisco, 2014 WL 981568, *3-*4 (E.D.Pa. March 13, 2014), plaintiff will be prejudiced since she will have to re-initiate discovery and expend additional money and time to try and establish her claims of piercing the corporate veil and fraudulent conveyance if she succeeds on her employment discrimination claims. The court in the Clientron case permitted its plaintiff to file an amended pleading to add an owner of defendant corporation as a party-defendant under an alter-ego theory of liability despite the fact that plaintiff did not yet have a judgment against the corporation. Also, Keystone is not prejudiced by the addition of the two new claims since discovery was extended in this case. Additionally, if plaintiff does not succeed on her underlying federal claims, her state law claims of piercing the corporate veil and fraudulent conveyance will be of no moment further limiting any prejudice to Keystone. *8 Thus, plaintiff's new Count IV and Count V in her proposed amended complaint will be permitted as against Mr. Morda. C. DISCRIMINATION CLAIMS In Counts I-III of her proposed amended complaint, plaintiff re-asserts her discrimination claims under Title I of the ADA, the ADEA and Title VII, respectively, with some revisions. Insofar as plaintiff seeks to add Mr. Morda and Mrs. Morda as defendants with respect to her employment discrimination claims seeking damages under Title I of the ADA, the ADEA and Title VII such attempt is futile since individuals are not liable under these statutes. See Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077 (3d Cir.1996) (Title VII does not impose liability on individuals); Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 184 (3d Cir.1997) (Congress did not intend to hold individuals liable under Title VII); Slater v. Susquehanna County, 613 F.Supp.2d 653, 662 (M.D.Pa.2009); Koslow v. Commw. of Pa., 302 F.3d 161, 178 (3d Cir.2002) (“there appears to be no individual liability for damages under Title I of the ADA”); Hill v. Borough of Kutztown, 455 F.3d 225, 246 n. 29 (3d Cir.2003) (“the ADEA does not provide for individual liability.”); Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995) (stating that “the ADA, ADEA, and Title VII all serve the same purpose-to prohibit discrimination in employment against members of certain classes[, and] ... the methods and manner of proof under one statute should inform the standards under the others as well.”); E.E.O.C. v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1280 (7th Cir.1995) (“Courts routinely apply arguments regarding individual liability to all three statutes [Title VII, ADA, ADEA] interchangeably.”). Also, even though Mr. Morda was the sole shareholder and owner of Keystone, he cannot be held liable in his individual capacity under Title VII and the ADA. See EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1279-82 (7th Cir.1995) (court held that individual owner and sole shareholder of corporation not liable as an individual under the ADA); Clarke v. Whitney, 907 F.Supp. 893 (E.D.Pa.1995) (court held that a principal shareholder and officer not individually liable under the ADA). Therefore, plaintiff's proposed amended discrimination claims under the ADA, the ADEA and Title VII cannot proceed as against Mr. Morda and Mrs. Morda in their individual capacity. The court notes that even though Mr. Morda cannot be held liable in his individual capacity under the ADA, the ADEA and Title VII, if plaintiff prevails on her discrimination claims, Mr. Morda will necessarily “absorb the pinch” from Keystone's liability since plaintiff will be allowed to proceed on her “piercing the corporate veil” claim and she will be permitted to try and demonstrate that Mr. Morda is actually the “alter ego” of Keystone. See e.g., AIC Security, 55 F.3d at 1282 n. 11. Thus, if Mr. Morda did discriminate against plaintiff as she alleges, he will not escape unscathed. *9 Keystone only opposes plaintiff's proposed amendments to her sex discrimination claim under Title VII, i.e., Count III. Thus, plaintiff's amended employment discrimination claims seeking damages under Title I of the ADA and the ADEA, Counts I and II, will be allowed as against Keystone. With respect to the Title VII claim, Keystone argues that plaintiff's original claims of discrimination “emanate from two allegedly adverse employment decisions that occurred on December 29, 2011 and January 6, 2012, [and][o]n these respective dates, plaintiff alleges her compensation scheme was first adversely altered and that she was then wrongfully terminated.” (Doc. 54, at 12). Keystone states Case 4:17-cv-00237-MWB Document 7-4 Filed 06/06/17 Page 6 of 8 Lozosky v. Keystone Business Products, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 4727073 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 that plaintiff seeks to add new theories and claims of sexual discrimination “focusing on disparate workplace treatment dating as far back as 2009.” Further, Keystone contends that “plaintiff's expanded theories of sexual discrimination,[ ], encompass approximately forty-two (42) paragraphs of new allegations, many of which have nothing whatsoever to do with the adverse decisions alleged in the initial complaint.” (Id.). At the outset, Keystone argues that it opposes plaintiff's amended Title VII claim concerning alleged disparate workplace treatment dating back to 2009, 2010 and 2011, based on extreme delay since plaintiff failed to explain why she did not include these allegations in her original complaint, filed two and one half years ago, which “focused exclusively on adverse employment decisions allegedly made in December of 2011 and January of 2012.” (Doc. 54, at 13). “The question of undue delay, as well as the question of bad faith, requires that [the court] focus on the plaintiff['s] motives for not amending [her] complaint to assert this claim earlier.” Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir.1984). Plaintiff states that she waited for the completion of the depositions of Keystone's representatives which was May 20, 2015, to file her instant motion “to determine the discriminatory actions of proposed additional defendants, Louis Morda and Mary Louise Morda, to be certain of the[ ] need to name them as individual defendants.” (Doc. 52, at 8). Plaintiff also states that Keystone's prior counsel caused a significant delay in completing the depositions and that her motion was timely filed about one month after Mr. Morda's deposition. In her proposed amended Title VII sex discrimination claim, plaintiff alleges, in part, that her monthly expense checks of $350.00 were stopped in 2009 and that she did not receive these checks from 2009 through 2011, despite Mr. Morda's testimony that she was to receive expense checks during her employment with Keystone. Plaintiff alleges that Mr. Morda and Mrs. Morda arbitrarily and willfully withheld her monthly expense checks, and that her similarly situated male counterparts at Keystone were given expense checks for all three years. Plaintiff was aware of her alleged disparate workplace treatment claims regarding her expense checks dating back to 2009 when she filed her original complaint and she has not adequately explained why she did not include these allegations in her original pleading. Plaintiff did not require the depositions of Keystone's representatives to learn of her claims concerning her expense checks and she had previous opportunities to amend her complaint to add these claims. Thus, the two and one half year delay regarding these claims is prejudicial to Keystone and would place an unfair burden on it to now be subjected to discovery on claims known to plaintiff when she commenced this action. As such, ¶ 's 73-80, (Doc. 48-2), of plaintiff's proposed amended Title VII sex discrimination claim shall not be allowed. However, plaintiff's remaining allegations in her proposed amended Title VII sex discrimination claim, including her alleged demotion on December 29, 2011, and her alleged reduced salary and commissions, shall be permitted as against Keystone since they are part of the same occurrences set forth in her original complaint and now provide greater specificity after discovery. IV. CONCLUSION *10 Accordingly, plaintiff's motion for leave to amend her complaint, (Doc. 48 ), will be GRANTED, IN PART, and DENIED, IN PART. Plaintiff's motion insofar as it seeks to add Louis Morda as a defendant in this case will be granted, in part, and plaintiff's new Count IV and Count V in her proposed amended complaint, piercing the corporate veil and fraudulent conveyance, will be permitted as against Louis Morda. Plaintiff's motion to the extent it seeks to add Mary Louise Morda as a defendant in this case will be denied. Plaintiff's proposed amended discrimination claims under the ADA, the ADEA and Title VII, Counts I-III, will not be allowed to proceed as against Mr. Morda and Mrs. Morda in their individual capacity. Plaintiff's amended employment discrimination claims seeking damages under Title I of the ADA and the ADEA, Counts I and II, will be allowed as against defendant Keystone. Paragraphs 73- 80, (Doc. 48-2), of plaintiff's proposed amended Title VII sex discrimination claim, Count III, regarding her expense checks from 2009-2011 will not be allowed. Plaintiff's remaining allegations in her proposed amended Title VII sex discrimination claim shall be permitted as against defendant Keystone. An appropriate order shall issue. ORDER In light of the memorandum issued this same day, IT IS HEREBY ORDERED THAT: Case 4:17-cv-00237-MWB Document 7-4 Filed 06/06/17 Page 7 of 8 Lozosky v. Keystone Business Products, Inc., Not Reported in F.Supp.3d (2015) 2015 WL 4727073 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 (1) Plaintiff's motion for leave to file first amended complaint, (Doc. 48 ), is GRANTED, IN PART, and DENIED, IN PART; (2) Plaintiff's motion insofar as it seeks to add Louis Morda as a defendant in this case is GRANTED, IN PART, and plaintiff's Count IV and Count V in her proposed amended complaint, piercing the corporate veil and fraudulent conveyance, are PERMITTED as against Louis Morda; (3) Plaintiff's motion to the extent it seeks to add Mary Louise Morda as a defendant in this case is DENIED; (4) Plaintiff's proposed amended discrimination claims under the ADA, the ADEA and Title VII, Counts I- III, are NOT PERMITTED as against Louis Morda and Mary Louise Morda in their individual capacity; (5) Plaintiff's amended employment discrimination claims under Title I of the ADA and the ADEA, Counts I and II, are PERMITTED as against defendant Keystone; (6) Paragraphs 73-80, (Doc. 48-2), of plaintiff's proposed amended Title VII sex discrimination claim, Count III, regarding her expense checks from 2009-2011 are NOT PERMITTED; (7) Plaintiff's remaining allegations in her proposed amended Title VII sex discrimination claim are PERMITTED as against defendant Keystone; and (8) Plaintiff is directed to file her first amended complaint, as specified in this Order, by August 24, 2015. All Citations Not Reported in F.Supp.3d, 2015 WL 4727073 Footnotes 1 Counts VI and VII of plaintiff's proposed amended complaint should be Counts IV and V. As such, the correct numbers are used herein. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 4:17-cv-00237-MWB Document 7-4 Filed 06/06/17 Page 8 of 8 Rodrigues v. Motorworld Automotive Group, Inc., Slip Copy (2017) 2017 WL 1036477 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2017 WL 1036477 Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Mark RODRIGUES, Plaintiff, v. MOTORWORLD AUTOMOTIVE GROUP, INC., t/b/d/a Motorworld et al., Defendants. CIVIL ACTION NO. 3:16-CV-1674 | Signed 03/17/2017 Attorneys and Law Firms Timothy M. Kolman, Timothy M. Kolman and Associates, W. Charles Sipio, Wayne A. Ely, Kolman Ely, P.C., Penndel, PA, for Plaintiff. William E. Dengler, Hendrzak & Lloyd, Center Valley, PA, Mark Joseph Kozlowski, Marshall Dennehey Warner Coleman & Goggin, Scranton, PA, William J. McPartland, Marshall, Dennehey, Warner, Coleman & Goggin, Moosic, PA, for Defendants. MEMORANDUM A. Richard Caputo, United States District Judge *1 Presently before the Court is a Motion to Dismiss filed by Defendant William “Bill” Smith (Doc. 19). For the reasons that follow, Defendant Smith's Motion will be granted in part and denied in part. I. Background The facts as set forth in Plaintiff's Complaint (Doc. 1) are as follows: Plaintiff Mark Rodrigues is a Pennsylvania resident who was formerly employed by Defendant Motorworld. (Compl. ¶¶ 1-2.) Plaintiff, who is “Italian, Portuguese, Latino, and Caucasian,” began working as a sales associate for Defendant Motorworld in April 2014. (Id. ¶¶ 18-19.) As soon as Plaintiff began working at Motorworld, Defendant Josh Cannon, a co-worker, asked Plaintiff: “What are you[,] Mexican?” (Id. ¶ 20.) Plaintiff corrected Cannon by informing him that he was Portuguese and that his last name ended with an “S,” not with a “Z.” (Id. ¶ 21.) Thereafter, Plaintiff was referred to as “Portuguese Penis,” “Portuguese Prince,” and his national origin was treated as a joke. (Id. ¶¶ 22-23.) When Plaintiff complained to some colleagues that he was being treated differently and being singled out, Cannon said: “[T]hat's because you are Mexican.” (Id. ¶ 25.) Defendant Joe Zakowski, another co-worker, made fun of Plaintiff's Portuguese heritage in front of colleagues and customers on a consistent basis. (Id. ¶ 24.) At times, customers referred to Plaintiff as “the Portuguese guy.” (Id. ¶ 56.) Around July 2014, Plaintiff complained to Defendant Bill Smith, a manager at Motorworld, and informed Smith about the offensive comments directed toward him. (Id. ¶¶ 26-27.) In response, Smith laughed and said that the person making the comments was “only joking around with you.” (Id. ¶ 28.) Smith did nothing to stop the comments from being made and laughed at such comments when he would hear them. (Id. ¶¶ 29, 31-32.) Offensive comments about Plaintiff were made on a regular basis. (Id. ¶ 33.) Plaintiff eventually spoke with Cheryl Orvick, the HR manager, at the beginning of May 2015. (Id. ¶ 35.) By this time, Plaintiff had a new manager, Defendant Stuart Lebowitz. (Id. ¶ 36.) After Plaintiff complained to HR, Orvick went to complain to Defendant Bob King, the president of Motorworld. (Id. ¶¶ 38-39.) A meeting took place between Plaintiff, Lebowitz, Orvick, and King. (Id. ¶ 40.) Prior to this meeting, Lebowitz singled out Plaintiff and told him that he could not wear his black casual dress shoes despite the fact that other people wore sneakers. (Id. ¶¶ 42-43.) Management at Motorworld cut the profit so that Plaintiff would sell more cars at less profit to himself, but Lebowitz would get his bonus because of the increase in car sales. (Id. ¶ 45.) Plaintiff was the only employee who had his profit reduced by Lebowitz. (Id. ¶ 46.) Additionally, when Plaintiff was late to work on one occasion, Lebowitz singled him out for his tardiness, despite the fact that other employees had come in late without reprimand. Case 4:17-cv-00237-MWB Document 7-5 Filed 06/06/17 Page 1 of 7 Rodrigues v. Motorworld Automotive Group, Inc., Slip Copy (2017) 2017 WL 1036477 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 (Id. ¶¶ 50-52.) Lebowitz also singled out Plaintiff during the weekly Saturday sales meeting by making statements about the way he dressed and his need to work harder. (Id. ¶¶ 53-54.) *2 Plaintiff resigned on Memorial Day 2015. (Id. ¶ 57.) Plaintiff timely filed a written charge of discrimination with the Philadelphia office of the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”). (Id. ¶ 13.) The EEOC mailed Plaintiff a Right to Sue Letter on or about May 16, 2016. (Id. ¶ 14.) II. Legal Standard Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b) (6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of her claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). A pleading that states a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a) (2). The statement required by Rule 8(a)(2) must “ ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory statements will not do; “a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint must “show” this entitlement by alleging sufficient facts. Id. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). As such, “[t]he touchstone of the pleading standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). The inquiry at the motion to dismiss stage is “normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “ ‘to raise a reasonable expectation that discovery will reveal evidence of’ ” each necessary element. Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. In deciding a motion to dismiss, the Court should consider the complaint, exhibits attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly authentic” documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Pension Benefit Guar. Corp., 998 F.2d at 1196. The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's “ ‘bald assertions' ” or “ ‘legal conclusions,’ ” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). III. Discussion *3 Plaintiff filed the instant lawsuit on August 12, 2016. (Doc. 1.) The Complaint names seven Defendants, including moving Defendant Smith. Count I raises a Case 4:17-cv-00237-MWB Document 7-5 Filed 06/06/17 Page 2 of 7 Rodrigues v. Motorworld Automotive Group, Inc., Slip Copy (2017) 2017 WL 1036477 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 claim of unlawful discrimination on the basis of race, color, and national origin, and a claim for retaliation, against Defendant Motorworld, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. Count II alleges claims of race discrimination and retaliation against all Defendants, in violation of 42 U.S.C. § 1981. Count III raises claims of discrimination and retaliation against all Defendants under the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951 et seq. On September 30, 2016, Smith filed a Motion to Dismiss (Doc. 19), seeking to dismiss Counts II and III of Plaintiff's Complaint and strike the request for punitive damages. Plaintiff filed his Brief in Opposition (Doc. 29) on November 11, 2016, and Smith filed his Reply Brief (Doc. 30) on November 25, 2016. The Motion is ripe for disposition. 1 A. Defendant Smith's Motion to Dismiss Count II Will Be Denied Smith seeks to dismiss Count II of Plaintiff's Complaint alleging race discrimination and retaliation in violation of 42 U.S.C. § 1981 on the grounds that: (1) Plaintiff failed to plead the existence of a contract; (2) Plaintiff's employment relationship with Defendant Motorworld is insufficient to hold Smith liable under § 1981; and (3) Plaintiff fails to plead facts demonstrating Smith intended to discriminate against Plaintiff on the basis of race. (Br. in Supp. 5-8, Doc. 26.) For the following reasons, Smith's Motion to Dismiss Count II will be denied. Section 1981 2 prohibits race discrimination in the making and enforcing of contracts. Rivers v. Roadway Exp., Inc., 511 U.S. 298, 302 (1994). In order to state a claim under § 1981, a plaintiff must plead sufficient facts in support of the following elements: (1) plaintiff is a member of a racial minority; (2) defendant intended to discriminate on the basis of race; and (3) defendant's discrimination concerned one or more of the activities enumerated in the statute, which includes the right to make and enforce contracts. 3 Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001). Unlike claims brought under Title VII, private individuals can be held liable for violating § 1981, see Cardenas v. Massey, 269 F.3d 251, 268 (3d Cir. 2001), so long as there is “some affirmative link to causally connect the actor with the discriminatory action.” Jean-Louis v. Am. Airlines, No. 08-CV-3898, 2010 WL 3023943, at *4 (E.D.N.Y. July 30, 2010) (citation omitted). However, “the substantive elements of a claim under section 1981 are generally identical to the elements of an employment discrimination claim under Title VII.” Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009). A right to relief under § 1981 can be shown by (1) purposeful racial discrimination; (2) a hostile work environment based on racial harassment; or (3) retaliation. Ellis v. Budget Maint., Inc., 25 F. Supp. 3d 749, 753 (E.D. Pa. 2014). At bottom, claims brought under § 1981 require proof of purposeful or intentional racial discrimination. Collins v. Christie, No. 06-4702, 2008 WL 2736418, at *10 (E.D. Pa. July 11, 2008) (citing Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982)). But in order to survive a motion to dismiss, a plaintiff need not establish a full prima facie case; “[i]t suffices for her to plead facts that, construed in her favor, state a claim of discrimination that is plausible on its face.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 791 (3d Cir. 2016) (quotation omitted). *4 Smith first contends that Plaintiff has failed to prove the existence of a contract triggering liability on the part of Smith under § 1981. However, Plaintiff's allegation that Smith's discrimination interfered with his at-will employment satisfies the requirement that a defendant's racial discrimination concern an activity enumerated in the statute. A “party can be liable under § 1981 if that party intentionally interferes, on the basis of race, with another's right to make and enforce contracts, regardless of whether the employer or anyone else may also be liable.” Collins, 2008 WL 2736418, at *10. The statute defines “make and enforce contracts” to include the “making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42. U.S.C. § 1981(b). The district court in McClease v. R.R. Donnelly & Sons Co. undertook a detailed analysis of whether the term “contract” encompassed at-will employment under the statute. 226 F. Supp. 2d 695 (E.D. Pa. 2002). Noting first that “[e]very appellate court that has examined the legislative history of [42 U.S.C. § 1981, as amended in 1991] has concluded that Congress intended the term ‘contract’ to encompass at-will employment,” the court determined that the legislative history clearly evidenced an intent for the term “contract” to include at- will employment. McClease, 226 F. Supp. 2d at 701-02; see Jean-Louis, 2010 WL 3023943, at *3 (noting that at-will employees “have contractual rights that may be enforced through § 1981”). The Court agrees with its sister courts Case 4:17-cv-00237-MWB Document 7-5 Filed 06/06/17 Page 3 of 7 Rodrigues v. Motorworld Automotive Group, Inc., Slip Copy (2017) 2017 WL 1036477 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 that the term “contract” as used in the statute includes at-will employment. Plaintiff's allegations thus satisfy the enumerated activity requirement. Smith next argues that Plaintiff has failed to plead facts that demonstrate he intended to discriminate against Plaintiff on the basis of race. (Br. in Supp. 7-8.) The Third Circuit has held that individual employees may be liable under § 1981 if they “are personally involved in the discrimination ... and if they intentionally caused [an infringement of plaintiff's] section 1981 rights, or if they authorized, directed, or participated in the alleged discriminatory conduct.” Al-Khazraji v. Saint Francis Coll., 784 F.2d 505, 518 (3d Cir. 1986). Individual liability may lie “regardless of whether the corporation may also be liable.” Id. Accordingly, employees may be held individually liable if they were “personally involved” in the discriminatory conduct at issue, and either “intentionally caused” the infringement of the plaintiff's § 1981 rights or “authorized, directed, or participated in the alleged discriminatory conduct.” Id.; see Brown v. TD Bank, N.A., No. 15-5474, 2016 WL 1298973, at *9 (E.D. Pa. Apr. 4, 2016). A supervisor may be found to have been personally involved with the discriminatory conduct if he was “grossly negligen[t] in the supervision of [his] subordinates who committed the wrongful acts” or “deliberate[ly] indifferen[t] to the rights of [plaintiff] by failing to act on information indicating that unconstitutional acts were occurring.” Aboudekika v. Del. River & Bay Auth., No. 10-5830, 2011 WL 5080216, at *2 (D.N.J. Oct. 25, 2011) (citation omitted); see Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004) (“Personal involvement, within the meaning of this concept, includes not only direct participation in the alleged violation but also gross negligence in the supervision of subordinates who committed the wrongful acts and failure to take action upon receiving information that constitutional violations are occurring.”). The allegations in the Complaint, accepted as true and construed in a light most favorable to Plaintiff, indicate Smith possessed the requisite intent to discriminate and was personally involved in the alleged discriminatory conduct. The Complaint states that Plaintiff complained to Smith, a manager at Motorworld, in July 2014 about the offensive comments that co-workers were directing at Plaintiff on an almost daily basis, which specifically included referring to Plaintiff as “Portuguese Penis” and “Portuguese Prince” and calling him a “Mexican” in an intentionally offensive manner. (Compl. ¶¶ 22-26, 33.) In response, Smith laughed and told Plaintiff those comments were only jokes. (Id. ¶ 28.) Despite being a supervisor, Smith did nothing to stop the comments from continuing, and also would laugh at such comments when he heard them being made. (Id. ¶¶ 29, 31-32.) Plaintiff alleges that the persistence of racially offensive comments and discriminatory treatment ultimately resulted in his constructive discharge on Memorial Day 2015. (Id. ¶¶ 57, 64.) A manager's deliberate indifference to, or participation in, a subordinate's acts of racially-motivated conduct can satisfy the element of intent necessary to give rise to individual liability under § 1981. See Cardenas v. Massey, 269 F.3d 251, 269 (3d Cir. 2001). And the Complaint sufficiently alleges Smith's personal involvement in the discriminatory conduct. See Francis v. Atlas Machining & Welding, Inc., No. 11-6487, 2013 WL 592297, at *4 (E.D. Pa. Feb. 15, 2013) (finding defendants could be held individually liable under § 1981 for failing to respond to reported instances of verbal harassment); Garner v. N.E.W. Indus., Inc., No. 13-C-0569, 2013 WL 6806186, at *2 (E.D. Wis. Dec. 19, 2013) (citing Francis, 2013 WL 592297, at *4 (“[T]he plaintiff alleges that he complained to [a supervisor] about the harassment and that [the supervisor] did not take action to prevent the hostile work environment from persisting. This is sufficient to allege personal involvement under section 1981.”)). *5 Accordingly, the Court will deny Smith's Motion with respect to Count II. B. Defendant Smith's Motion to Dismiss Count III Will Be Granted Smith argues that Plaintiff's claim under the Pennsylvania Human Relations Act (“PHRA”) in Count III must be dismissed as time-barred and for failing to sufficiently allege that Smith contributed to the discriminatory conduct. (Br. in Supp. 8-11.) In support of his timeliness argument, Smith points out that Plaintiff has failed to state specifically when he filed his charge of discrimination with the EEOC. (Br. in Supp. 9; see Compl. ¶ 13 (alleging that Plaintiff “filed [a] timely written charge of discrimination,” but not stating when this occurred).) As such, Smith contends that Plaintiff has failed to show that the “complaints” of discrimination which concern Smith occurred within 180 days of the date on which the charge of discrimination was filed. Case 4:17-cv-00237-MWB Document 7-5 Filed 06/06/17 Page 4 of 7 Rodrigues v. Motorworld Automotive Group, Inc., Slip Copy (2017) 2017 WL 1036477 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 In response, Plaintiff's counsel admits that he currently does not have a time-stamped copy of his charge, but asserts that it “appears to have been filed in or around July 2015.” (Br. in Opp'n 9 n.4, Doc. 29.) Additionally, Plaintiff argues that, “if” the charge was indeed filed in July 2015, it is timely as it relates to Plaintiff's claim of a constructive discharge. Plaintiff further contends that the continuing violations doctrine should apply to his hostile work environment claim, and therefore his PHRA claim against Smith in his individual capacity should not be dismissed as time barred. For the reasons that follow, the Court will grant Smith's Motion and dismiss without prejudice Count III as to Smith. Under the PHRA, supervisory employees may be held individually liable for “aiding and abetting” their employer's discriminatory practices. 43 P.S. § 955(e) 4 ; see Davis v. Levy, Angstreich, Finney, Baldante, Rubenstein & Coren P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa. 1998). Section 955(e) provides the “sole basis of individual liability in the PHRA.” Santai v. Fred Beans Ford, Inc., No. 10-2367, 2011 WL 3606836, at *3 (E.D. Pa. Aug. 16, 2011). Before a plaintiff-employee can file suit under the PHRA, he must first exhaust his claim by presenting it in an administrative charge to the PHRC. Weems v. Kehe Food Distribs., Inc., 804 F. Supp. 2d 339, 341 (E.D. Pa. 2011) (citing Antol v. Perry, 82 F.3d 1291, 1295- 96 (3d Cir. 1996)). A complainant must file a complaint with the PHRC within 180 days of the alleged act of discrimination. 43 P.S. § 959(h); Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997). If a complainant fails to timely file a charge with the PHRC, he is precluded from the judicial remedies provided for under the PHRA. Woodson, 109 F.3d at 925; Vincent v. Fuller Co., 616 A.2d 969, 974 (Pa. 1992). Pennsylvania courts “strictly interpret” this timely-filing requirement. Woodson, 109 F.3d at 925. *6 Under the continuing violations doctrine, “discriminatory acts that are not individually actionable may be aggregated to make out a hostile work environment claim.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013). “[A]n act that falls outside the applicable limitations period may be deemed timely if a plaintiff shows that: (1) it is part of an ‘ongoing practice or pattern of discrimination’ by the defendant; and (2) the ‘last act evidencing the continuing practice falls within the limitations period.’ ” Oliver v. Clinical Practices of Univ. of Pa., 921 F. Supp. 2d 434, 443 (E.D. Pa. 2013) (citation omitted). Thus, in order to avail himself of the doctrine, a plaintiff must first demonstrate “that the last act of the continuing practice-not just any discriminatory practice-occurred within the limitations period.” Id. at 444 n.11 (citing Rush v. Speciality Gases, Inc., 113 F.3d 476, 481 (3d Cir. 1997)) (emphasis in original); see Coe v. Pa. State Univ., No. 4:14-cv-01818, 2016 WL 1162344, at *9 (M.D. Pa. Mar. 24, 2016). Next, a plaintiff must show that the acts outside of the limitations period are part of an ongoing pattern or practice of discrimination, rather than discrete discriminatory acts. Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001). As to Smith's timeliness argument, at the pleading stage the Court is satisfied that Plaintiff has met his burden. See Kern v. Schuylkill Intermediate Unit 29, No. 3:CV-08-1601, 2010 WL 235107, at *4 (M.D. Pa. Jan. 15, 2010) (“Details pertaining to the exhaustion effort are more properly the subject of discovery.”). However, even assuming that Plaintiff's charge of discrimination was filed in or around July 2015, Plaintiff's PHRA claim against Smith is time barred because there is no plausible allegation that Smith engaged in any discriminatory behavior in the year 2015. 5 Moreover, Plaintiff's PHRA claim against Smith in his personal capacity is not subject to the continuing violations doctrine. If Plaintiff filed his charge in July 2015, as he now claims, discriminatory conduct occurring before January 2015 “falls beyond the reach of the limitations period unless otherwise covered by the ‘continuing violation’ theory.” Coe, 2016 WL 1162344, at *9. With respect to Plaintiff's PHRA claim against Smith individually, Plaintiff has failed to plausibly allege any conduct on the part of Smith that occurred after July 2014. Thus, any claim against Smith individually under the PHRA is time barred unless it is subject to the continuing violations doctrine, which it is not. Even assuming Smith's alleged “aiding and abetting” constituted an ongoing practice or pattern of discrimination, the Complaint does not allege a single action or failure on the part of Smith that took place within the PHRA limitations period. See Oliver, 921 F. Supp. 2d at 444 n.11 (“[T]he last act of the continuing practice-not just any discriminatory practice-[must have] occurred within the limitations period.”); see also Coe, 2016 WL 1162344, at *9 (continuing violations doctrine does not apply when no act of discrimination by the defendant is alleged to have occurred within the PHRA's 180-day limitations period). When read in a Case 4:17-cv-00237-MWB Document 7-5 Filed 06/06/17 Page 5 of 7 Rodrigues v. Motorworld Automotive Group, Inc., Slip Copy (2017) 2017 WL 1036477 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 light most favorable to Plaintiff, the Complaint claims that Smith failed to respond to Plaintiff's complaints about receiving racially offensive comments and tacitly approved of his subordinates' racially discriminatory conduct in 2014, outside of the PHRA limitations period. (Compl. ¶¶ 26-33.) Although the Complaint also asserts vaguely that Smith “refused to talk to” Plaintiff at an unspecified time(s) (Compl. ¶ 49), it is not clear when this conduct occurred or whether it was part of a continuing practice of discrimination on the part of Smith. *7 Because Plaintiff has not alleged that at least one instance of Smith's aiding and abetting Motorworld's discriminatory practices took place within the PHRA limitations period, Plaintiff may not avail himself of the continuing violations doctrine with respect to his PHRA claim against Smith in his individual capacity. Accordingly, the Court will grant Defendant Smith's Motion and dismiss without prejudice Count III of Plaintiff's Complaint as to Smith. C. Defendant Smith's Motion to Strike Plaintiff's Request for Punitive Damages Will Be Denied Lastly, Smith argues that Plaintiff's request for punitive damages should be stricken as to the claims against Smith. First, Smith notes correctly that punitive damages are not available under the PHRA. See Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998). Accordingly, to the extent Plaintiff seeks punitive damages from Smith, or any other Defendant, for violations of the PHRA, such a request is stricken. Second, Smith contends that Plaintiff's request for punitive damages for Smith's alleged violation of 42 U.S.C. § 1981 should be stricken because the allegations do not establish that Smith acted with “extreme and outrageous behavior.” (Br. in Supp. 11, Doc. 26.) Plaintiff argues that the request for punitive damages from Smith should not be stricken at this early stage. (Br. in Opp'n 10, Doc. 29.) The Court declines to strike Plaintiff's request for punitive damages from Smith at this juncture. 6 A plaintiff may seek punitive damages from individual defendants for claims arising under 42 U.S.C. § 1981. See Sec. & Data Techs., Inc. v. Sch. Dist. of Phila., 145 F. Supp. 3d 454, 469 (E.D. Pa. 2015) (citing Bennis v. Gable, 823 F.2d 723, 734 (3d Cir. 1987)); Sharif v. MIQ Logistics, Inc., No. 3-cv-13-2983, 2014 WL 1653191, at *3 (M.D. Pa. Apr. 23, 2014). “The standard for punitive damages in a federal civil rights action ... does not require ‘outrageousness': a jury may ‘assess punitive damages in [a civil rights action] when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.’ ” Alexander v. Riga, 208 F.3d 419, 430-31 (3d Cir. 2000) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)); Sharif, 2014 WL 1653191, at *3 (“A plaintiff may be entitled to punitive damage[s] ... when his or her employer engages in discriminatory practices with ‘malice or reckless indifference to the federally protected rights of an aggrieved individual.’ ”) (citation omitted). In order to be subject to punitive damages for engaging in a discriminatory practice, a defendant must have “knowledge that he or she may be acting in violation of federal law,” not merely “an awareness that he or she is engaging in discrimination.” Johnson v. Fed. Exp. Corp., 996 F. Supp. 2d 302, 321 (M.D. Pa. 2014) (citing Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 534 (1999)). *8 Plaintiff plausibly alleges that he told Smith that he was being subjected to racially offensive comments by his co-workers, yet Smith, as a manager, did not attempt to take any remedial measures. Plaintiff further alleges that Smith did not care that Plaintiff was being subjected to discriminatory treatment and laughed when Smith's subordinates made racially offensive comments about Plaintiff. And Plaintiff asserts that this conduct was “deliberate” and “malicious.” (Compl. ¶ e.) In light of Plaintiff's allegations, the Court declines to strike Plaintiff's request for punitive damages at this stage of the proceedings. See Sharif, 2014 WL 1653191, at *4. Smith may renew his objection to Plaintiff's request for punitive damages after the parties have engaged in discovery. D. Leave to Amend The Third Circuit has instructed that if a complaint is vulnerable to a 12(b)(6) dismissal, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)). Here, because Plaintiff might be able to allege facts sufficient to state a claim under 43 P.S. § 955(e) against Smith, the Court will grant leave to amend that claim. Case 4:17-cv-00237-MWB Document 7-5 Filed 06/06/17 Page 6 of 7 Rodrigues v. Motorworld Automotive Group, Inc., Slip Copy (2017) 2017 WL 1036477 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 IV. Conclusion For the above stated reasons, Defendant Smith's Motion to Dismiss (Doc. 19) will be granted in part and denied in part. An appropriate order follows. All Citations Slip Copy, 2017 WL 1036477 Footnotes 1 The Court recently conducted a substantially similar analysis with respect to a Motion to Dismiss filed by Defendant Smith in an analogous case. See Suero v. Motorworld Auto. Grp., No. 3:16-cv-00686, 2017 WL 413005 (M.D. Pa. Jan. 31, 2017). Because many of Smith's legal arguments are similar or identical to those raised and addressed in the Court's earlier opinion, the Court's analysis borrows from that opinion where appropriate. 2 42 U.S.C. § 1981 states in relevant part: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens....” 3 Smith concedes that Plaintiff alleges sufficiently that he is a member of a racial minority. (Br. in Supp. 7, Doc. 26.) 4 Section 955(e) forbids: [A]ny person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice, or to obstruct or prevent any person from complying with the provisions of this act or any order issued thereunder, or to attempt, directly or indirectly, to commit any act declared by this section to be an unlawful discriminatory practice. 5 This is true even if, arguendo, Plaintiff filed his charge of discrimination the day he resigned from Motorworld in May 2015. 6 In support of his request for punitive damages, Plaintiff argues that the request is especially appropriate in light of a recent lawsuit involving Smith, in which another former employee of Motorworld alleged that, inter alia, Smith failed to take corrective measures after the employee complained about racial discrimination in the workplace. See Charnitski v. Motorworld Grp., No. 10-cv-02024-MEM (M.D. Pa. Aug. 15, 2013). In deciding a motion to dismiss, courts may take judicial notice of facts that are “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Se. Pa. Transp. Auth. v. Orrstown Fin. Servs., Inc., No. 1:12-cv-00993, 2016 WL 7117455, at *5 (M.D. Pa. Dec. 7, 2016) (quoting Fed. R. Evid. 201(b)). However, generally courts may not take judicial notice of findings of fact from another case. See Walker v. Woodford, 454 F. Supp. 2d 1007, 1022 (S.D. Cal. 2006); IKB Int'l S.A. v. Bank of Am., No. 12-cv-4036, 2014 WL 1377801, at *7 (S.D.N.Y. Mar. 31, 2014). Therefore, the Court will not take notice of the arguments or factual assertions contained in the Exhibit attached to Plaintiff's Brief in Opposition (Doc. 29), and will strike all references to the findings of fact in the Charnitski case from Plaintiff's Brief. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. 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