Sanabria v. Pennsylvania Human Relations Commission

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and for lack of jurisdiction

E.D. Pa.January 3, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LUIS SANABRIA : : Plaintiff, : v. : CIVIL ACTION NO. 16-cv-6088 PENNSYLVANIA HUMAN RELATIONS : COMMISSION : Defendant. ORDER AND NOW, this day of , 2017, upon consideration of the motion of the defendant Pennsylvania Human Relations Commission to dismiss plaintiff’s complaint, it is hereby ORDERED that the motion is GRANTED. The complaint is hereby DISMISSED. Plaintiff may amend his Title VII claim within 30 days. BY THE COURT: Michael Baylson, S.J. Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LUIS SANABRIA : : Plaintiff, : v. : CIVIL ACTION NO. 16-cv-6088 PENNSYLVANIA HUMAN RELATIONS : COMMISSION : Defendant. MOTION TO DISMISS THE COMPLAINT Defendant Pennsylvania Human Relations Commission (PHRC) moves to dismiss Count II of plaintiff’s complaint for lack of jurisdiction, pursuant to Fed.R.Civ.P. 12(b) (1), and moves to dismiss both Counts I and II of the complaint without prejudice, pursuant to Fed.R.Civ.P. 12(b)(6). The PHRC incorporates by reference the attached memorandum of law. Wherefore, this Court should grant the relief as set forth in the proposed order. Respectfully submitted, BRUCE R. BEEMER Attorney General /s/ Sue Ann Unger Sue Ann Unger Office of Attorney General Senior Deputy Attorney General 21 S. 12th Street, 3rd Floor Attorney I.D. No. 39009 Philadelphia, PA 19107 Kenneth Joel 215-560-2127; fx: 717-772-4526 Chief Deputy Attorney General Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 2 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LUIS SANABRIA : Plaintiff, : ; v. : : CIVIL ACTION NO. 16-cv-6088 PENNSYLVANIA HUMAN RELATIONS : COMMISSION : Defendant. : MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT I. PROCEDURAL HISTORY Plaintiff Sanabria, a retired investigator employed by the defendant Pennsylvania Human Relations Commission (PHRC), asserts two causes of action against his former employer. His Count I alleges that the PHRC violated the opposition clause of Title VII, 42 U.S.C. § 2000e-3. His Count II asserts that the PHRC violated the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 955(d). Plaintiff’s exhibit B to his complaint shows that he dual filed his EEOC charge on June 23, 2016, and that the EEOC issued its notice of right to sue on August 19, 2016. He concludes that he exhausted his administrative remedies. Complaint ¶ 32. II. FACTS ALLEGED Plaintiff, a Hispanic, claims that while employed as an investigator at the PHRC, he vocally opposed PHRC practices since 2011 that he believes were forbidden by anti- discrimination laws. Id. ¶¶ 12-19. For example, he opposed a PHRC recent layoff as discriminatory and a PHRC decision to provide forms in English only, in addition to opposing other PHRC practices. Id. He claims that the PHRC retaliated by falsifying his performance review which he speculates caused him to lose a better-paid job opportunity in 2016 with a Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 3 of 11 3 different employer--the Welfare Department. ¶¶ 20-27. He also speculates that the same challenged performance review was to line him up for termination. ¶ 28. He does not aver that he was terminated. He states that he was targeted, harassed, and retaliated against, and that disparate discriminatory conduct was hostile and pervasive. ¶¶ 19, 39, 41. Plaintiff avers that he submitted an EEOC charge and received a right to sue notice. ¶ 32. The PHRC exhibits plaintiff’s charge of discrimination, dated June 27, 2016. Exh. D1, see Complaint ¶ 32. Plaintiff exhibits the right to sue notice, dated August 19, 2016. Pl. Exh. A. III. ARGUMENT A. Applicable Standard A Rule 12(b) (1) motion is the proper way to raise the issue of Eleventh Amendment immunity. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d Cir.1996). Eleventh Amendment issues should be disposed of at the motion-to-dismiss stage. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249 (3d Cir. 2010). Courts consider 12(b)(1) challenges before Rule 12(b)(6) challenges, because a dismissal for lack of subject matter jurisdiction moots other defenses and objections. Tolan v. U.S., 176 F.R.D. 507, 509 (E.D. Pa. 1998) (citing cases). To survive a 12(b)(6) motion, a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 662 F.3d. at 221. Where “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (quoting Fed.R.Civ.P. 8(a)(2)); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558-559 (2007). A complaint that does not “show” entitlement to relief must be dismissed. Id. The claim must thus have “facial plausibility.” Argueta v. U.S. Immigration and Customs Enf., 643 F.3d 60, 72-73 (3d Cir. 2011). Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 4 of 11 4 “This ‘plausibility’ standard does not require probability, but it does demand more than a sheer possibility that the defendant acted unlawfully. Therefore, a complaint pleading facts that are merely consistent with liability is insufficient.” Id. “Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint takes three steps.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (footnote omitted): First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675 …. Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679 …. See also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011)[ cert. den’d, 132 S.Ct. 1861 (2012)] (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679 …. In employment discrimination cases, “at least for purposes of pleading sufficiency, a complaint need not establish a prima facie case in order to survive a motion to dismiss.” Connelly v. Lane Const. Corp., 809 F.3d 780, 788 (3d Cir. 2016), quoted in Doe v. Elwyn & Elwyn, Inc., No. 16-CV-2894, 2016 WL 6247055, at *4 (E.D. Pa. Oct. 25, 2016). To survive a motion to dismiss, a plaintiff must thus plead “sufficient factual allegations to raise a reasonable expectation that discovery will reveal evidence of” each of the elements of the claims. Ibid. B. The Eleventh Amendment Bars the PHRA Claim in this Court. An assertion of Eleventh Amendment immunity is a challenge to a district court's subject matter jurisdiction. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693, n 2 (3d Cir. 1996) (“[T]he Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.”) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). Whether or not there is waiver of a state’s Eleventh Amendment Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 5 of 11 5 immunity “is a question of federal law.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 623 (2002). The party asserting Eleventh Amendment immunity bears the burden of proving its applicability. Christy v. Pennsylvania Turnpike Comm., 54 F.3d 1140, 1144 (3d Cir. 1994); see also Carter v. City of Phila., 181 F.3d 339, 347 (3d Cir. 1999). The Eleventh Amendment bars the PHRA claim in federal court. See 42 Pa. Cons. Stat. § 8521(b). Before a State can be sued in federal court, the state must waive its immunity under the Eleventh Amendment. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1995). As explained below, Pennsylvania has retained its immunity. In Pennhurst, 465 U.S. at 105-06, the Supreme Court explicitly held that, because of the Eleventh Amendment, federal courts do not have jurisdiction to order state agencies or officials to comply with state law. Accord Allegheny County Sanitary Auth. v. USEPA, 732 F.2d 1167 (3d Cir. 1984). Neither pendent (supplemental) jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment. Pennhurst 465 U.S. at 121. The principle of sovereign immunity expressed in the Eleventh Amendment is a constitutional limit on federal judicial power. Pennhurst, 465 U.S. at 98. “There are two ways that a state may lose its Eleventh Amendment immunity: Congress can explicitly abrogate it in a particular statute, or a state can waive it with regard to a particular statute.” Fitzpatrick v. Commonwealth of Pa. Dep't of Transp., 40 F.Supp.2d 631, 634 (E.D.Pa. 1999); Koslow v. Commonwealth of Pa., 302 F.3d 161, 168 (3d Cir. 2002). Congress did not explicitly abrogate States’ immunity. When Congress legislates within the permissible scope of Section 5 of the Fourteenth Amendment, it may abrogate the states' Eleventh Amendment immunity by "making its intention [to abrogate] unmistakably clear in the language of the statute" authorizing the federal suit. Seminole Tribe, 517 U.S. at Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 6 of 11 6 55-56; Dellmuth, 491 U.S. at 227-28; Atascadero, 473 U.S. 234, 242. The above does not apply to the PHRA. The other way States lose immunity is by consenting to suit in federal court. “The Eleventh Amendment's bar extends to suits against departments or agencies of the state having no existence apart from the state.” Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir.1981) (citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). States’ sovereign immunity can be waived or consented to by the states’ unequivocal expression of consent to be sued in federal court. Pennhurst, 465 U.S. at 99; Florida Dept of Health v. Florida Nurs’g Home Assn., 450 U.S. 147 (1981) (general waivers of sovereign immunity are insufficient); see Atascadero, 473 U.S. at 241; Laskaris, 661 F.2d 23. While a State may consent to a suit against it in federal court and thereby waive its immunity, Pennsylvania has specifically withheld consent. 42 Pa.C.S. § 8521(b). Pennsylvania has not consented to suit against it in federal court with regard to claims under the PHRA. Haybarger v. Lawrence Cty. Adult Prob. and Parole, 551 F.3d 193 (3d Cir. 2008); Boone v. Pa. Office of Vocational Rehab., 373 F.Supp.2d 484, 495-96 (M.D. Pa.2005) (holding that state agencies maintain sovereign immunity from PHRA suits in federal court); Fitzpatrick v. Pa. Dept. of Transp., 40 F.Supp.2d 631, 635 (E.D.Pa. 1999) (citing 42 Pa.C.S. § 8521(b)); see Mansfield State Coll. v. Kovich, 407 A.2d 1387, 1388 (Pa. Commw. 1979); see Blake v. Papadakos, 953 F.2d 69, 73 n. 5 (3d Cir. 1992) ("federal courts have no jurisdiction to review state officials' compliance with state law."). While Pennsylvania has waived its immunity to PHRA claims in its own courts, it has not waived its immunity to suit in federal court. Moore v. Pa. Dept. of Military and Veterans Affairs, 216 F. Supp. 2d 446, 454 (E.D.Pa. 2002); see also, Mansfield State, 407 A.2d at 1388. Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 7 of 11 7 The defendant PHRC is a state agency. Foster v. Pennsylvania Human Relations Comm'n., 157 F. App'x 488, 490 (3d Cir. 2005). Therefore the Eleventh Amendment bars the PHRA acclaim against the PHRC in federal court. Foster (citing Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 131 F.3d 353, 356 (3d Cir.1997)). C. Plaintiff’s PHRA Claim is Premature. The EEOC’s notice of right to sue does not mean that plaintiff has a right to sue under the PHRA. Plaintiff dual filed his charge only on June 23, 2016. Exhibit D1. The PHRC retains exclusive jurisdiction over the PHRA claim for a period of one year “to conduct an investigation of the charges and, if possible, conciliate the matter.” Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 920 (Pa.1988); Kelly v. U.S. Steel Corp., No. 2:11-CV-00193, 2011 WL 3607458, at *2 (W.D. Pa. Aug. 16, 2011); see 43 P.S. § 962. Accordingly, Sanabria’s legal conclusion of exhaustion is incorrect. His PHRA claim must be dismissed for failure to exhaust in addition to lack of jurisdiction. D. The Title VII Claim Fails. . To state a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that: (1) he engaged in activity protected by Title VII; (2) the employer took an adverse action against him; and (3) there was a causal connection between his participation in the protected activity and the adverse action. Blakney v. City of Phila., 559 Fed.Appx. 183, 185 (3d Cir.2014) (citing inter alia Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir.2006)). The Title VII claim fails because, once the generic conclusions of harassment, targeting, discriminating, retaliating are excluded, the complaint does not raise a reasonable expectation that discovery will reveal evidence that the PHRC took an adverse employment action against Sanabria. Allegations that are “merely conclusory, are not entitled to the presumption of truth.” Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 8 of 11 8 Connelly, 809 F.3d at 789. “[T]he clearest indication that an allegation is conclusory and unworthy of weight...is that it embodies a legal point.” Id. Yet, “'some allegations, while not stating ultimate legal conclusions, are nevertheless so threadbare or speculative that they fail to cross the line between the conclusory and the factual,”' and so are also not entitled to any weight in the analysis. Id. (quoting Peñalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595 (1st Cir. 2011)). Accordingly, allegations which “paraphrase in one way or another the pertinent statutory language or elements of the claims in question” should be excluded; the reference to harassment is a legal conclusion which should also be excluded. 809 F.3d at 790. Once conclusions are separated from facts, we are left with a single factual allegation to be accepted as true-the PHRC issued a falsified performance evaluation. That is the only alleged adverse action.1 As explained next, that action is not adverse. A false presumably negative performance evaluation does not does not constitute an adverse employment action. “It is well-established that “[a] negative evaluation, by itself, is not an adverse employment action.” Paradisis v. Englewood Hosp. & Med. Ctr., No. CV 13-5936, 2016 WL 4697337, at *11 (D.N.J. Sept. 6, 2016), appeal pending (3d Cir. filed Sep. 16, 2016) (citations omitted. “[T]he Third Circuit held that a performance evaluation of [an employee] which rated him “satisfactory” but noted that there were occasions in which [he] failed to “follow directives” was not materially adverse and, therefore, did not support [the employee’s] retaliation claim. Ponton v. AFSCME, 395 F. App'x 867, 874 (3d Cir. 2010). More recently the Third Circuit held in Walker v. Centocor Ortho Biotech, Inc., 558 Fed. App'x 216, 220 (3d Cir. 2014), that a “negative evaluation by itself, is not an adverse employment action.” See, Hallman v. PPL Corp., No. 11CV02834, 2014 WL 349714, at *11 (E.D. Pa. Jan. 31, 2014); see e.g. 1 Exhibit D1 (¶¶ g-k of Sanabria’s EEOC charge) shows his claim that a false evaluation was issued after September 30, 2015, that he complained about it on January 20, 2016, and that it was removed from the PHRC computer system and replaced with another evaluation on February 11, 2016. Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 9 of 11 9 Rosati v. Colello, 94 F. Supp. 3d 704, 718 (E.D. Pa. 2015), appeal dismissed (3d Cir. Dec. 10, 2015). Here, Sanabria sets forth rank speculation -certainly not plausible-that the PHRC released his “false” evaluation and thus caused him not to receive a position that he applied for at the Welfare Department. In Tucker v. Merck & Co., 131 Fed.Appx. 852, 857 (3d Cir. 2005), the Third Circuit held that the plaintiff was not subject to an adverse employment action where his negative performance evaluations had no impact on his compensation or terms of employment. Solomon v. Caritas, No.15-CV-4050, 2016 WL 4493193, at *5 (E.D. Pa. Aug. 26, 2016). The non-receipt of a transfer to a different employer cannot reasonably constitute an impact on Sanabria’s terms and conditions of employment at the PHRC. Thus, even if the PHRC had somehow released his “false” evaluation to the Welfare Department, Sanabria alleges no tangible effect on his employment status at the PHRC. Therefore Sanabria’s Title VII retaliation count should be dismissed without prejudice to allow him to attempt to amend his complaint and meet the standards required to state a claim. IV. CONCLUSION This Court should dismiss the complaint as set forth in the attached proposed order. Respectfully submitted, BRUCE R. BEEMER Attorney General /s/ Sue Ann Unger Sue Ann Unger Office of Attorney General Senior Deputy Attorney General 21 S. 12th Street, 3rd Floor Attorney I.D. No. 39009 Philadelphia, PA 19107 Kenneth Joel 215-560-2127; fx: 717-772-4526 Chief Deputy Attorney General Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 10 of 11 CERTIFICATE OF SERVICE I, Sue Ann Unger, hereby certify that the defendants’ attached document has been filed electronically on January 3, 2017, and is available for viewing and downloading from the Court’s Electronic Case Filing System. Plaintiff’s counsel is on the Court’s electronic email notice list. Plaintiff has thus been served. /s/ Sue Ann Unger Sue Ann Unger Office of Attorney General Senior Deputy Attorney General 21 S. 12th Street, 3rd Floor Attorney I.D. No. 39009 Philadelphia, PA 19107 215-560-2127; fx: 717-772-4526 Case 2:16-cv-06088-MMB Document 3 Filed 01/03/17 Page 11 of 11 Case 2:16-cv-06088-MMB Document 3-1 Filed 01/03/17 Page 1 of 2 Case 2:16-cv-06088-MMB Document 3-1 Filed 01/03/17 Page 2 of 2