Sinclair Fowler v. City of Philadelphia Records Dept. et al

First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.June 12, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA YARNELL SINCLAIR FOWLER, : : Plaintiff, : : v. : Civil Action No. 16-6700 : CITY OF PHILADELPHIA et. al., : : Defendants. : ORDER AND NOW, this _____ day of ___________, 2017, upon consideration of Defendant City of Philadelphia’s Motion to Dismiss, and any response thereto, it is hereby ORDERED that the Motion is GRANTED. Plaintiff’s Complaint is dismissed with prejudice. BY THE COURT: _________________________ WENDY BEETLESTONE, J. Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 1 of 10 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA YARNELL SINCLAIR FOWLER, : : Plaintiff, : : v. : Civil Action No. 16-6700 : CITY OF PHILADELPHIA et. al., : : Defendants. : DEFENDANT CITY OF PHILADELPHIA’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant City of Philadelphia files this Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. Pro. 12(b)(6), seeking that the claims against it be dismissed. Defendant respectfully requests that this Court dismiss the claims brought against Defendant on the grounds more fully described in the supporting memorandum of law, attached hereto. Respectfully Submitted, SOZI PEDRO TULANTE City Solicitor Date: June 12, 2017 BY: /s/ Joseph E. Randall Joseph E. Randall Assistant City Solicitor Pa. Attorney ID No. 316070 City of Philadelphia Law Dept. 1515 Arch St., 16th Fl. Philadelphia, PA 19102 (215) 683-5080 joseph.randall@phila.gov Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 2 of 10 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA YARNELL SINCLAIR FOWLER, : : Plaintiff, : : v. : Civil Action No. 16-6700 : CITY OF PHILADELPHIA et. al., : : Defendants. : DEFENDANT CITY OF PHILADELPHIA’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant City of Philadelphia submits this Memorandum of Law in Support of its Motion for to Dismiss for Failure to State a Claim under Fed. R. Civ. P. 12(b)(6). Plaintiff’s Complaint alleges claims of race discrimination, sex discrimination, and hostile work environment under Title VII, 42 U.S.C. §§ 2000e-1 et seq. Plaintiff’s claims fail because: (1) regarding Plaintiff’s claims of race and sex discrimination, Plaintiff fails to plead facts to show he suffered discrimination or that his rejection during probation could give rise to an inference of intentional discrimination, and (2) regarding Plaintiff’s claim of hostile work environment, Plaintiff fails to exhaust his administrative remedies. I. FACTUAL SUMMARY1 Plaintiff Yarnell Fowler is a male who was a probationary employee with the City of Philadelphia Department of Records (“Department”). Plaintiff’s probationary employment 1 For the purposes of this Motion to Dismiss, Defendant accepts the facts as pled by Plaintiff as true. Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 3 of 10 3 began on April 25, 2016. Compl. at 10.2 Plaintiff’s probation period ended on October 24, 2016. See “Exhibit A” of Compl. at 12. Plaintiff was rejected during probation on October 21, 2016. Compl. at 9. Plaintiff alleges that he never received a performance evaluation report during his time at the Department. Id. However, Plaintiff was given two memoranda from the Department regarding his performance. See “Exhibit D” and “Exhibit D(2)” of Compl. at 19 and 20. In a memorandum dated May 19, 2016, Plaintiff’s supervisor, Linda Townsel (“Townsel”), a black female, indicates that Plaintiff improperly worked overtime alone despite Plaintiff being told that he is not permitted to work overtime alone due to his status as a non-permanent employee. See “Exhibit D” of Compl. at 19. Less than a month later, Townsel issued a second memorandum dated June 17, 2016, which outlines thirteen incidents where Plaintiff reported late to work. See “Exhibit D2” of Plaintiff’s Compl. at 20. Plaintiff further avers that the majority of his latenesses were due to operational issues with Septa regional trains. Id. at 9. However, Plaintiff fails to specify the dates in which his latenesses were due to Septa. Plaintiff also fails to plead facts to show whether Septa’s operational issues were even in effect on all of the dates he reported to work late. Moreover, Plaintiff avers that he was denied a union representative at a meeting and that Townsel denied him a key to the office. Id. at 9-10. Finally, Plaintiff alleges that he was not permitted to work overtime while a female temporary employee, Ayeesha B., was approved to work overtime. Id. at 10. Plaintiff’s focus on Ayeesha B. is misplaced. He fails to plead facts to show that Ayeesha B. was not permitted to work overtime or that she ever worked overtime alone. Plaintiff was initially permitted to work 2 Plaintiff’s Complaint fails to conform to Fed. R. Civ. P. 10(b). The Complaint does not contain numbered paragraphs, and each paragraph is not limited to a single set of circumstances. When citing to Plaintiff’s Complaint, Defendant will refer to the official pagination marked by the Court’s electronic filing system at the top of each page. Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 4 of 10 4 overtime but was instructed that he could not work overtime alone. Plaintiff’s disregard for this instruction—by working overtime alone on two occasions—was the reason for him being denied future overtime opportunities until his probationary period ended. See “Exhibit D” of Plaintiff’s Compl. at 19. On November 7, 2016, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), which was dual-filed with the Pennsylvania Human Relations Commission (“PHRC”). Compl. at 22. On November 15, 2016, he was issued a Notice of Right to Sue from the EEOC. Id. at 25. II. STANDARD OF REVIEW A Rule 12(b)(6) motion to dismiss tests the sufficiency of the allegations contained in the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When considering such a motion, the court “accept[s] as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them. Dismissal under Rule 12(b)(6) . . . is limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved.” Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). This liberal pleading standard, however, does not excuse a plaintiff from adequately stating claims and supporting those claims with facts consistent with those allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Nor must a court credit “a complaint’s ‘bald assertions.’” Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citing In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Although a court must consider the pleadings as true when evaluating a motion to dismiss, a court need not consider a plaintiff’s bare legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937, Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 5 of 10 5 1949 (2009) (holding that all civil complaints must contain “more than an unadorned, the- defendant-unlawfully-harmed-me accusation”). As the U.S. Court of Appeals for the Third Circuit has recognized, this plausibility standard requires the district court to conduct a two-part analysis of complaints. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). First, courts should separate “the factual and legal elements of a claim, so that while the district court must ‘accept all of the complaint's well-pleaded facts as true,’ it may “disregard any legal conclusions.’” Id. Second, courts must then determine “whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Id. (citing Iqbal, 129 S. Ct. at 1950). III. ARGUMENT A. PLAINTIFF’S TITLE VII RACE AND SEX DISCRIMINATION CLAIMS FAIL BECAUSE HE HAS FAILED TO ALLEGE EVIDENCE OF DIRECT DISCRIMINATION OR THAT HIS REJECTION DURING PROBATION COULD GIVE RISE TO AN INFERENCE OF INTENTIONAL DISCRIMINATION Plaintiff’s Title VII race and sex discrimination claims must be dismissed, with prejudice, because he has failed to allege evidence of direct discrimination or that his rejection during probation could give rise to an inference of intentional discrimination. “To establish a prima facie case of discrimination, a plaintiff must show that she (1) belongs to a protected class, (2) was qualified for the position, (3) was subject to an adverse employment action despite being qualified, and (4) her employer acted under circumstances raising an inference of discriminatory action.” Rosati v. Colello, 94 F. Supp. 3d 704, 713 (E.D. Pa. 2015), appeal dismissed (Dec. 10, 2015) (citing Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003). An adverse employment action is one that is serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment. Cardenas v. Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 6 of 10 6 Massey, 269 F.3d 251, 263 (3d Cir.2001). A plaintiff may meet his burden through direct or circumstantial evidence. Rosati, 94 F. Supp. 3d at 713. Plaintiff fails to prove his claims either through direct or circumstantial evidence. At best, Plaintiff cites his perception that certain actions were discriminatory. See Compl. at 10 (“Ms. Townsel was by far the most biased and vindictive supervisor that I have ever worked for”). Plaintiff alleges that he was denied a union representative at a meeting, was not given a key to the office, and was not permitted to work overtime. Id. at 9-10. However, Plaintiff fails to plead any facts or present any direct evidence to show that Plaintiff’s race or sex played a role in these actions. In fact, Plaintiff’s exhibits reveal that his own misconduct served as the basis for him being denied overtime. See “Exhibit A” and “Exhibit D” at 12 and 19 (Plaintiff worked overtime alone on May 12, 2016 and May 13, 2016 even though he was told that he could not do so due to his probationary status). Though Plaintiff claims that a female temporary employee, Ayeesha B., worked overtime, he fails to specify whether Ayeesha B. worked overtime alone or under supervision. In addition, Plaintiff does not allege that Townsel, a black female, or any other City supervisor, made any comments or statements concerning either his race or sex that would constitute direct evidence of discriminatory intent. Plaintiff’s perceptions, alone and ungrounded in reality, cannot constitute direct evidence of discrimination. Plaintiff has failed to plead facts sufficient to establish a causal connection between any of these actions and the fact that Plaintiff is a black male. Here, the adverse employment action claimed by Plaintiff is his rejection from probation. Plaintiff’s own exhibit provides the reasons for his rejection during probation: he worked overtime alone after being told he was not permitted to do so, he was excessively tardy, and he failed to follow instructions. See “Exhibit Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 7 of 10 7 A” of Compl. at 12. Plaintiff’s race and sex therefore played no role in the Department’s decision to reject him during probation. Plaintiff has not alleged any facts to show that intentional discrimination can be inferred from the adverse employment action. As such, Plaintiff has not shown the required causal connection between actions of those in the Department and his protected status sufficient to raise an inference of discrimination. Thus, his Title VII claims for race and sex discrimination should be dismissed. B. PLAINTIFF’S TITLE VII HOSTILE WORK ENVIRONMENT CLAIM FAILS BECAUSE PLAINTIFF HAS FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES Plaintiff’s Title VII hostile work environment claim must be dismissed, with prejudice, because he fails to allege a hostile work environment in his agency filing. To bring a suit under Title VII or the PHRA, a plaintiff must first file a charge with the EEOC and the PHRC. See Barzanty v. Verizon PA, Inc., 361 Fed. Appx. 411, 413 (3d Cir. 2010) (Title VII requires exhaustion of administrative remedies prior to suit). “The ensuing suit is limited to claims that are within the scope of the initial administrative charge.” Barzanty, 361 Fed. Appx. at 413-414. Plaintiff has failed to exhaust his administrative remedies prior to bringing the present suit as his agency filing does not include any specific allegations of hostile work environment. Therefore, his claims of hostile work environment should be dismissed. In Plaintiff’s EEOC Charge, which was dual-filed with the PHRC, he alleges violations of Title VII on the basis of race and gender only. See Compl. at 22. Plaintiff does not plead any facts in the aforementioned dual-filed EEOC and PHRC Charge to support a claim of hostile work environment, and he does not allege hostile work environment anywhere in the Charge. Plaintiff has failed to administratively exhaust his hostile work environment claim as it is not Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 8 of 10 8 fairly within the scope of his agency filings. Thus, his hostile work environment claim should be dismissed with prejudice. VI. CONCLUSION Defendant City of Philadelphia respectfully requests that this Honorable Court grant this Motion and dismiss Plaintiff’s Complaint with prejudice. Plaintiff’s claims fail because: (1) regarding Plaintiff’s claims of race and sex discrimination, Plaintiff fails to plead facts to show he suffered discrimination or that his rejection during probation could give rise to an inference of intentional discrimination, and (2) regarding Plaintiff’s claim of hostile work environment, Plaintiff fails to exhaust his administrative remedies. Respectfully Submitted, SOZI PEDRO TULANTE City Solicitor Date: June 12, 2017 BY: /s/ Joseph E. Randall Joseph E. Randall Assistant City Solicitor Pa. Attorney ID No. 316070 City of Philadelphia Law Dept. 1515 Arch St., 16th Fl. Philadelphia, PA 19102 (215) 683-5080 joseph.randall@phila.gov Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 9 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA YARNELL SINCLAIR FOWLER, : : Plaintiff, : : v. : Civil Action No. 16-6700 : CITY OF PHILADELPHIA et. al., : : Defendants. : CERTIFICATE OF SERVICE I hereby certify that on the date below, the foregoing Motion to Dismiss and Memorandum of Law has been filed electronically and is available for viewing and downloading. I certify that I sent the foregoing Motion to Dismiss and Memorandum of Law on the date noted below to the following persons via U.S. Mail and e-mail: Yarnell Fowler 1158 East Vernon Road Philadelphia, PA 19150 Yarnellf@hotmail.com Respectfully Submitted, SOZI PEDRO TULANTE City Solicitor Date: June 12, 2017 BY: /s/ Joseph E. Randall Joseph E. Randall Assistant City Solicitor Case 2:16-cv-06700-WB Document 10 Filed 06/12/17 Page 10 of 10