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YOUNG v. BENSALEM TOWNSHIP

United States District Court, E.D. Pennsylvania


July 23, 2004.

GREGORY A. YOUNG and BRANDON J. RHONE
v.
BENSALEM TOWNSHIP, et al.

The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge

MEMORANDUM

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.

  I.

  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); Fed.R.Civ.P. 12(b).

  II.

  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 racist comment.

  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.

  III.

  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.

  IV.

  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 their claims.

  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 Rhone.

  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 complaint.

  V.

  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 omitted).

  "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.

  VI.

  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 prejudice.

20040723

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