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July 23, 2004.


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); Fed.R.Civ.P. 12(b).


  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, ...

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