United States District Court, E.D. Pennsylvania
July 23, 2004.
GREGORY A. YOUNG and BRANDON J. RHONE
BENSALEM TOWNSHIP, et al.
The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge
Before the court is the motion of defendants to dismiss
plaintiffs' complaint for failure to state a claim for relief.
Defendants also contend that the action is time barred.
Plaintiffs Gregory A. Young ("Young"), an African American
detective for the Township of Bensalem (the "Township"), and
Brandon J. Rhone ("Rhone"), an African American former dispatcher
for the Township, have brought an action against the Township, as
well as three public safety officers employed by the Township:
John Robinson ("Robinson"), Captain of the Bensalem Police;
Steven Moran ("Moran"), Director of Public Safety; and Frederick
Harran ("Harran"), Assistant Director of Public Safety.
Plaintiffs claim racial discrimination and retaliation, in
violation of Title VII of the Civil Rights Act of 1964 and 1991,
42 U.S.C. § 2000e-2, et seq., and the Pennsylvania Human
Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 951, et
seq. They also assert civil rights claims under
42 U.S.C. § 1981, 1983, 1985, and 1986. These claims include alleged
violations of their equal protection and First Amendment rights under the
United States Constitution.
Defendants move to dismiss all counts of the complaint on the
grounds that plaintiffs have failed to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. In considering
a motion to dismiss for failure to state a claim, we accept as
true all well-pleaded facts in the complaint and draw any
reasonable inferences in plaintiffs' favor. See Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). We should
grant the motion only if "it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations" contained in the complaint. Id. In ruling
on a motion to dismiss, we need not decide whether plaintiffs
will ultimately be able to prove their claims. The Supreme Court
has held that to survive a motion to dismiss, a plaintiff
alleging employment discrimination is not required to plead facts
necessary to establish a prima facie case of discrimination, but
rather simply a "short and plain statement of the claim showing
that the pleader is entitled to relief." Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 512 (2002) (citing Fed.R.Civ.P. 8(a)(2)).
Defendants have also attached "materials outside the pleadings"
to their motion. However, because there has not been an
opportunity for discovery, we will not consider the attached
materials in our disposition of this motion. See In re Burlington Coat Factory, 114 F.3d 1410, 1426 (3d Cir. 1997);
First, we turn to defendants' motion to dismiss plaintiff
Young's Title VII and PHRA claims, and both plaintiffs' § 1981
claims (Counts I, IV, and VI) for failure to state a claim. Our
Court of Appeals has found that PHRA race discrimination claims
are considered under the same standards that apply to Title VII
claims. Knabe v. Boury Corp., 114 F.3d 407, 410 n. 5 (3d Cir.
1997) (citations omitted). To establish a prima facie case,
plaintiffs must prove that: (1) defendants are members of a
protected class; (2) they were qualified for their respective
positions; (3) defendants discriminated against them in a manner
that adversely affected a condition of their employment; and (4)
the alleged discrimination gave rise to an inference of
discrimination. Jones v. Sch. Dist. of Philadelphia,
198 F.3d 403, 410-11 (3d Cir. 1999) (citations omitted). The requirements
under § 1981 are similar, but a plaintiff must also prove
purposeful racial discrimination on the part of defendants.
See Jackson v. Paparo, 2002 WL 32341800, at *3 (E.D. Pa. Oct.
28, 2002) (citations omitted) (emphasis added). Here, we need not
determine whether plaintiffs have established a prima facie case.
See Swierkiewicz, 534 U.S. at 511. Instead, we must decide
whether they have set forth sufficient evidence to allow a fact
finder to conclude that plaintiffs were treated less favorably
than others on account of their race, a trait that is protected under Title VII, the PHRA, and § 1981. See e.g.,
Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999).
In his complaint, Young alleges that he has been discriminated
against on account of his race and that the Township has
retaliated against him for filing an EEOC charge. See Compl. at
¶¶ 93-96. Young was hired as a police officer in October, 1989,
and was promoted to detective on April 9, 2001. He claims that
since the beginning of his tenure with defendant Township,
Robinson has continuously referred to African Americans using
racist terms. Young did not report all of the alleged racist
comments, most of which were not made in his presence. However,
on at least two occasions before March 20, 2001, Young notified
Frank Friel ("Friel"), the then Director of Public Safety, of
Robinson's racist comments. Young requested that Friel ask
Robinson to stop doing so. Young contends that Robinson's racist
comments continued, which prompted Young to complain to Friel a
second time. In April, 1997, Friel retired and was replaced by
defendant Moran, and defendant Harran was promoted from patrolman
to Assistant Director of Public Safety. On March 20, 2001, Young
claims that he heard Robinson use the word "nigger" in the
presence of Harran. Young then met with Harran and demanded some
action be taken. Young saw Harran visit Robinson's office but
does not know whether Robinson was disciplined for the alleged
On or about June 17, 2001, Young faxed a complaint to Mayor
Joseph D. Girolamo (the "Mayor") requesting a meeting about Robinson's racist behavior. Plaintiff then met with the Mayor on
August 7, 2001. The Mayor ordered that Robinson and Harran
apologize to Young. He also required the police department staff
to attend training on harassment. On August 13, 2001, five months
after the incident, Robinson apologized in writing to Young. From
August, 2001, through November, 2002, Young claims he heard
through others at the department that Robinson continued to make
racist comments, approximately once every other week.
Plaintiff Rhone alleges that defendant Robinson opposed Rhone's
hiring because he is African American. Compl. at ¶ 71. Rhone
claims he filled out an application for a police dispatcher
position several times beginning in May, 2002 and was repeatedly
told by Robinson that his application was lost. When he was hired
in October, 2002, Robinson came to Lieutenant Perry Ferrara,
Jr.'s ("Ferrara") office and told Ferrara "I hope you're happy
your boy [Rhone] got hired." Two months later, the officer who
trained Rhone told Robinson that Rhone had completed training and
was ready to be a dispatcher on his own. In response, Robinson
allegedly stated that he did not know why Rhone was hired in the
first place. When Rhone went to Moran to complain about
Robinson's comment, Moran told him that "Robinson has been that
way for forty years. You're going to have to deal with him."
Compl. at ¶ 77. Rhone claims that he was constructively
discharged as a result of "unwarranted, excessive, unequal
discipline and the openly racial hostility." Compl. at ¶ 110. Taking the allegations in the complaint as true for present
purposes, we find that plaintiffs have sufficiently pleaded
claims under Title VII, the PHRA, and § 1981, and we will deny
defendants' motion to dismiss Counts I, IV, and VI of plaintiffs'
complaint on 12(b)(6) grounds. See Swierkiewicz, 534 U.S. at
514 (citations omitted).
Defendants have also moved to dismiss plaintiff Young's claims
under Title VII and the PHRA (Counts I and VI) on the grounds
that they are time barred. Defendants contend that Young failed
to exhaust his administrative remedies because he did not file
his discrimination charge with the Equal Employment Opportunity
Commission ("EEOC") and the Pennsylvania Human Relations
Commission ("PHRC"). See Robinson v. Dalton, 107 F.3d 1018,
1020 (3d Cir. 1997). Under 42 U.S.C. § 2000e-5(e), "such charge
shall be filed by or on behalf of the person aggrieved within
three hundred days after the alleged unlawful employment practice
occurred" in a state such as Pennsylvania with an agency
analogous to the EEOC. See Woodson v. Scott Paper Co.,
109 F.3d 913, 926 n. 12 (3d Cir. 1997), cert. denied 522 U.S. 914
(1997); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1414-15
(3d Cir. 1991); Zysk v. FFE Minerals USA, Inc., 225 F. Supp.2d 482,
493-94 (E.D. Pa. 2001). Otherwise, the plaintiff must file
with the EEOC within one hundred eighty days.
42 U.S.C. § 2000e-5(e). In addition, the PHRA requires that a plaintiff file
a charge of discrimination with the PHRC within one hundred
eighty days of the alleged discrimination. 43 Pa. Cons. Stat.
Ann. § 959(h). Plaintiffs' complaint states that Young, along with Rhone,
filed discrimination complaints with the EEOC on June 25, 2002.
Compl. at ¶ 79. Defendants, in their motion to dismiss, have
attached Young's EEOC charge of discrimination dated August 5,
2003, and also filed with the PHRC. In disposing of this motion
to dismiss, we need not sort out the filing date of the EEOC
complaint(s), but will accept as true the allegations in
plaintiffs' complaint. See Hishon, 467 U.S. at 73.
Defendants contend that Young's EEOC and PHRC complaint was not
filed within the required deadline because March 20, 2001, the
date on which Robinson used the "n" word in Young's presence, is
the last date on which Young could conceivably allege a violation
of Title VII or the PHRA. Defendants maintain that Young cannot
rely on comments Robinson made to others to support his claims.
See e.g., Ngeunjuntr v. Met. Life Ins. Co., 146 F.3d 464,
467 (7th Cir. 1998).
In response, Young claims that the incident on March 20, 2001,
is a part of a continuing pattern of discrimination which began
in 1989, when he was hired by defendant Township, and continued
through November, 2002, which falls within the required 300 days
(under the EEOC guidelines) or 180 days (under the PHRC
regulations) of June 25, 2002, the date on which plaintiffs claim
to have filed their EEOC complaint. See Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 118 (2002). It does not appear
"beyond a doubt that the plaintiff can prove no set of facts in
support of his claim" that defendants' alleged discriminatory behavior was part of an
ongoing practice or pattern. Conley v. Gibson, 355 U.S. at
45-46 (1957). From the facts alleged in the complaint, Young may
be able to establish a continuing violation. Thus, we will deny
without prejudice defendants' motion to dismiss Young's Title VII
and PHRA claims on the ground that they are time barred.
Next, defendants move to dismiss Count II of plaintiffs'
complaint on the grounds that plaintiffs have failed to state a
viable hostile work environment/equal protection claim under
42 U.S.C. § 1983. To establish a § 1983 equal protection claim,
plaintiffs must show that they were subjected to "purposeful
discrimination" because of their race in violation of the equal
protection clause of the United States Constitution. Bradley v.
Pittsburgh Bd. of Educ., 913 F.2d 1064, 1079 (3d Cir. 1990). To
prevail on this claim, plaintiffs must prove that defendants
personally "participated in violating [their] rights, . . . that
[they] directed others to violate them, or that [they] . . . had
knowledge of and acquiesced in [their] subordinates' violations."
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir.
1997) (citations omitted); see also Andrews v. City of
Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). As noted
above, we need not decide whether plaintiffs' claims are
meritorious. We need only determine whether plaintiffs have set
forth facts from which a jury could find that they are entitled
to relief under § 1983. See Iadimarco, 190 F.3d at 161. Here, plaintiffs claim that they are members of a protected
class. Compl. at ¶ 98. They assert that they were subjected to
unequal discipline on account of their race. Compl. at ¶¶ 100,
109. In addition, the complaint cites instances where superior
officers allegedly "had knowledge of and acquiesced" in racist
activity or where defendants purportedly directed others to treat
African Americans disparately on account of their race.
While plaintiffs may not ultimately prevail, they have
sufficiently set forth claims that "provide adequate notice to
the defense." See Weston v. Commonwealth of Pennsylvania,
251 F.3d 420, 428 (3d Cir. 2001). This is all that is required to
survive a motion to dismiss. Id. (citations omitted).
Accordingly, we will deny defendants' motion to dismiss Count II
of plaintiffs' complaint.
Plaintiffs have also brought a First Amendment retaliation
claim under § 1983 against defendants Moran, Harran and Robinson
(Count III). Defendants contend that the First Amendment
retaliation claim should be dismissed as to both plaintiffs
because they have failed to state a claim. A public employee has
a First Amendment right to speak on matters of public concern
without fear of retaliation by his or her employer. Brennan v.
Norton, 350 F.3d 399, 412 (3d Cir. 2003). The Third Circuit has
set forth a three-step test for analyzing a public employee's
First Amendment retaliation claim for engaging in protected
speech. See Baldassare v. State of New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001). First, a plaintiff must show
that he engaged in protected activity. Id. at 195. For present
purposes, speech that addresses a matter of public concern is
protected First Amendment activity. See id. The plaintiff
must then demonstrate that the speech in question is not
outweighed by the state's countervailing interest as an employer
in promoting the efficiency of the public services it provides
through its employees. Id. (citations omitted). Finally, the
plaintiff must show that his speech was the motivating factor
behind an employer's adverse action. Id. (citations omitted).
Again, we are merely identifying whether plaintiffs in the
instant case have set forth a First Amendment retaliation claim
upon which relief could be granted. See Swierkiewicz, 534
U.S. at 511. We need not determine whether plaintiffs have proven
Here, Rhone contends that he spoke out about matters of public
concern and filed complaints about the discriminatory practices
of Robinson and the Public Safety Administration and that he has
suffered retaliation as a result. See Compl. at ¶¶ 112, 114.
Specifically, Rhone claims that he complained to Moran about
Robinson's alleged racial animus. An employee's grievance about
discrimination by a public employer is a matter of public
concern. See Rode v. Dellarciprete, 845 F.2d 1195, 1201-02
(3d Cir. 1988). Rhone alleges that defendants retaliated against
him by subjecting him to discipline for bringing a firearm into
the police department and wearing an improper uniform. Compl. at
¶¶ 106, 109. He further contends that he was constructively discharged in March, 2004, as a result of
"unwarranted, excessive, unequal discipline and the openly racial
hostility." Compl. at ¶ 110.
Defendants maintain that Rhone did not state a First Amendment
retaliation claim because the comments of Robinson in allegedly
expressing his disapproval of Rhone's being hired as a dispatcher
have no racial overtones. We disagree. The Third Circuit has
found that such comments must be placed in the context in which
they were offered. See Baldassare, 250 F.3d at 195. Under
the facts alleged, Rhone's complaints to Moran may constitute
protected First Amendment activity as he conceivably was trying
"to bring to light actual or potential wrongdoing or breach of
public trust on the part of government officials." Id.
(citations omitted). Therefore, we will deny defendants' motion
to dismiss the First Amendment retaliation claim as it relates to
With respect to Young, defendants maintain that he has failed
to state a First Amendment retaliation claim because he has not
alleged that defendants took any tangible employment action
against him for complaining about Robinson's alleged comments.
See Keenan v. City of Philadelphia, 983 F.2d 459, 466 (3d
Cir. 1992). In response, plaintiffs claim that after complaining
to the Mayor about Robinson's alleged comments, Young heard that
Robinson and others continued to make racial epithets in the
workplace. Plaintiffs assert that the continuation of the alleged
racist behavior constitutes retaliation for Young speaking out. Considering the allegations in the light most
favorable to Young, we find that he has sufficiently pleaded a
First Amendment retaliation claim. Therefore, we will deny
defendants' motion to dismiss this claim as it relates to Young.
Defendants have also moved to dismiss Young's First Amendment
retaliation claim on the ground that his claim is time barred. A
§ 1983 First Amendment claim is subject to a two-year statute of
limitations. See Sutton v. West Chester Area Sch. Dist., 2004
WL 999144, *16 (E.D. Pa. May 4, 2004). Young alleges that he has
suffered retaliation as a result of the complaints that he made
about defendant Robinson to Friel before Friel retired in April,
1997, and to the Mayor on June 17, 2001. His federal court
complaint was filed on March 25, 2004, more than two years after
his complaint to the Mayor. However, Young contends that the
continuing violation doctrine applies because defendants'
discriminatory conduct was "more than the occurrence of isolated
or sporadic acts." West v. Philadelphia Elec. Co., 45 F.3d 744,
755 (3d Cir. 1995) (citations omitted); see also Harley v.
City of Philadelphia, 2003 WL 22597606, at *4 (E.D. Pa. Nov. 4,
2003). Young maintains that after making his own complaint about
Robinson in March, 2001, he continued to hear about Robinson's
racist comments through November, 2002. When he heard about
Rhone's complaint, Young contends that he filed an EEOC charge of
discrimination in June, 2002. As noted above, an employee's
grievance about a public employer's racial discrimination,
particularly through the filing of an EEOC complaint, qualifies as First Amendment protected activity. See
Rode, 845 F.2d at 1201-02. Because it does not appear "beyond a
doubt that the plaintiff can prove no set of facts in support of
his claim" that defendants' alleged discriminatory behavior was
part of an ongoing practice or pattern, we will not dismiss
Young's First Amendment retaliation claim on the ground that it
is time-barred. Conley, 355 U.S. at 45-46. Thus, we will deny
without prejudice defendants' motion to dismiss Count III of the
Finally, defendants have moved to dismiss Count V of
plaintiffs' complaint, contending that plaintiffs have failed to
state viable §§ 1985 and 1986 claims. Section 1985 provides
relief where a plaintiff can show a defendant engaged in: (1) a
conspiracy; (2) motivated by a racial or class based
discriminatory animus designed to deprive, directly or
indirectly, any person or class of persons of the equal
protections of the laws; (3) an act in furtherance of the
conspiracy; and (4) an injury to person or property or the
deprivation of any right or privilege of a citizen of the United
States. Williams v. Brotherhood Mission's Bd. of Trustees, 2004
WL 503490, at *3 (E.D. Pa. Feb. 10, 2004) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102-103 (1971)). To survive a motion
to dismiss, a plaintiff must do more than set forth conclusory
allegations of conspiracy. See Aultman v. Padgett, 2003 WL
22358445, at *5 (E.D. Pa. Sept. 10, 2003) (citations omitted). Instead, "a complaint must allege specific facts suggesting there
was a mutual understanding among the conspirators to take actions
directed toward an unconstitutional end." Id. (citations
"Section 1986 constitutes an additional safeguard against the
wrongs prohibited by section 1985." Dixon v. Boscov's, Inc.,
2002 WL 1740583, at *3 (E.D. Pa. July 17, 2002) (citations
omitted). "It provides a cause of action for recovery against
anyone who with knowledge of a section 1985 conspiracy and the
power to prevent its violation, neglects or refuses to do so."
Id. To state a claim under § 1986, plaintiffs must show the
existence of a § 1985 conspiracy. Id.
In the instant case, plaintiffs allege that members of
defendant Township's Public Safety Administration, specifically
Moran, Harran, and Robinson, have "promoted, permitted and/or
acquiesced in a pattern and practice of racial discrimination."
Compl. at ¶ 81. For example, plaintiffs contend that the Township
has a system in place to ensure anonymity and equal opportunity
in applying for police officer positions so that an application
is evaluated without reference to a person's identity, race, and
sex. However, Moran and Harran ordered the recording of the sex
and race of applicants. In addition, plaintiffs claim that the
Public Safety Office for the Township directed a tow truck
company contractor to return overcharges to individuals.
Robinson, in the presence of Moran, allegedly said that persons
on the overcharge list that looked like "niggers" and "dot heads" need not be paid back. Thus, the tow truck
operator was purportedly required to pay back only individuals
with "non-minority" names.
We find that plaintiffs have sufficiently pleaded a set of
facts consistent with their § 1985 and § 1986 claims which could
provide relief. See Lloyd v. City of Bethlehem, 2002 WL
31341093, at *3 (E.D. Pa. Oct. 16, 2002). In their allegations
concerning the tow truck contractor, plaintiffs contend that
defendants had an agreement motivated by a discriminatory animus
to deprive a class of persons of the equal protections of the
laws and that a class of persons was, in fact, injured by
defendants' discriminatory actions. See Williams, 2004 WL
503490, at *5 (citations omitted). At this early stage in the
lawsuit, we need not determine whether plaintiffs will ultimately
prevail on their claims. See Swierkiewicz, 534 U.S. at 511.
Plaintiffs have given defendants fair notice of what their claims
are and the grounds upon which they rest. Id. at 514 (citations
omitted). Accordingly, we will deny defendants' motion to dismiss
Count V of the complaint.
For all the foregoing reasons, we will deny defendants' motion
to dismiss plaintiffs' complaint without prejudice. ORDER
AND NOW, this day of July, 2004, for the reasons set forth in
the accompanying Memorandum, it is hereby ORDERED that the motion
of defendants to dismiss plaintiffs' complaint is DENIED without
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