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Clark v. PNC Financial Services Group

October 13, 2010

LISA MARIE CLARK, PLAINTIFF,
v.
PNC FINANCIAL SERVICES GROUP, DEFENDANT.



The opinion of the court was delivered by: Judge Mcverry

MEMORANDUM OPINION AND ORDER

Presently pending before the Court for disposition is the MOTION TO DISMISS COMPLAINT PURSUANT TO FED. R. CIV. P. 8(a) AND 12(b)(6), with brief in support, filed by Defendant PNC Financial Services Group, Inc. (Doc. Nos. 6 and 7, respectively). Plaintiff filed a brief letter to the Court opposing Defendant‟s motion to dismiss. (Doc. No. 10). The motion is ripe for disposition. For the following reasons, Defendant‟s motion to dismiss will be granted in part and denied in part.

Factual Background

Plaintiff, Lisa Marie Clark, initiated this case by the filing of a Complaint alleging race discrimination against Defendant, PNC Financial Services Group, Inc. ("PNC").*fn1 (Doc. No. 2). Plaintiff additionally avers that Defendant discharged her in July of 2009 in retaliation for her filing a prior charge of disability discrimination against PNC with the U.S. Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Rights Commission ("PHRC") in September of 2002. (Compl. at ¶ 14; Doc. No. 7). Further, Plaintiff alleges that she was retaliated against for objecting to the conditions at PNC‟s employee dining area, Café 36. (Compl. at ¶ 18).

The following facts are taken from the Complaint. Plaintiff began her employment with Defendant on June 24, 2001 as a Financial Services Consultant. Approximately one year later in July of 2002, Plaintiff requested to be transferred to PNC‟s Channel Services Department, a transfer that would change her duties to processing paperwork and conducting research, as compared to her then-current position that involved regularly speaking with customers. Plaintiff cited her tempo-mandibular joint disorder (TMJ) as the basis of her request. PNC denied her transfer request. In response to which, Plaintiff filed a disability discrimination complaint with the PHRC and EEOC alleging that PNC violated Section 5(a) of the Pennsylvania Human Relations Act 43 P.S. 951-963 ("PHRA") on or about September 4, 2002. Thereafter, PNC transferred Plaintiff to the Channel Services Department, provided Plaintiff with a wage increase, and compensated her for losses she had incurred. Plaintiff subsequently withdrew her complaint.

Beginning sometime in 2008, Plaintiff avers that she began "noticing a petrifying pattern" of conference calls and requests directed to Plaintiff from Jan Law, an employee in Defendant‟s human resources department. According to the Complaint, Jan Law harassed Plaintiff "by constantly calling" Plaintiff into her office or "by repeated conference calls." On numerous occasions, Plaintiff was informed by Jan Law that she would be terminated if she was untruthful or dishonest. Also, since November 2007, Plaintiff has not received her annual raises of 2.34 percent.

The Complaint also describes circumstances involving a 2009 investigation into the unauthorized use of a postage machine by employees of the Channel Services Department. Apparently, Lynn Coppolla, a fellow employee in the department, attempted to mail a personal package using the UPS machine. The package was returned to PNC as undeliverable, which precipitated the investigation into the use of company resources for personal reasons. As part of that investigation, Plaintiff was questioned by Jan Law on June 29, 2009, and was asked whether she had used the postage machine to mail any personal items in the past. In response, Plaintiff admitted that she had used the UPS machine to mail a package to her brother in Houston, Texas, but Plaintiff also noted that many other employees had also used the UPS machine for such personal use. According to Plaintiff, she initially offered to reimburse Defendant the $30 it cost to send her package, but changed her mind when Jan Law told Plaintiff to make the payment out directly to Law. Thereafter, Plaintiff was suspended with pay from the Channel Services Department. On July 15, 2009, Plaintiff‟s employment with Defendant was terminated and Plaintiff was informed that the termination was based on her use of company property for personal use. Plaintiff, who is black, contends that "other white employees" who had also used the company UPS machine for personal use were not suspended or discharged. More particularly, Plaintiff alleges that PNC allowed Lynn Coppolla to continue working for approximately 2 1/2 additional weeks before she was discharged by PNC. Plaintiff asserts that Lynn Coppolla had "time to clean up her desk, take home any personal items and destroy any damaging evidence that might convict her." In addition, Plaintiff alleges other white employee, Sue Broman, Mike Weber, Joe Frizzi, and Mike Cendric, also used the machine and were never discharged. After Plaintiff was discharged, PNC developed a new employee code of conduct policy with regard to the use of PNC property.

Plaintiff also alleges that she was retaliated against for objecting to conditions at Café 36, the employee dining area. Café 36, a restaurant available to PNC employees and to the public, is owned by Defendant. Park Hurst Dining supplies Café 36 with food, products, and employees. On June 4, 2009, Plaintiff filed a complaint with Park Hurst, asserting that Café 36 has "unhealthy, unsanitary [and] unethical practices." According to Plaintiff, she was fired approximately five (5) weeks after she filed that complaint.

Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of a complaint filed by the plaintiff. The United States Supreme Court has held that "[a] plaintiff‟s obligation to provide the "grounds‟ of his "entitle[ment] to relief‟ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) (alterations in original)).

The Court must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made clear in Twombly, the "factual allegations must be enough to raise a right to relief above the speculative level." Id. The Supreme Court has subsequently broadened the scope of this requirement, stating that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937, 1950 (2009) (citing Twombly, 550 U.S. at 556) (emphasis added).

Thus, after Iqbal, a district court must conduct a two-part analysis when presented with a motion to dismiss for failure to state a claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the Court must separate the factual and legal elements of the claim. Id. Although the Court "must accept all of the complaint‟s well-pleaded facts as true, [it] may disregard any legal conclusions." Id. at 210-211. Second, the Court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief.‟ In other words, a complaint must do more than allege the plaintiff‟s entitlement to relief. A complaint has to "show‟ such an entitlement with its facts." Id. at 211 (citing Iqbal, 129 S.Ct. at 1950).

As a result, "pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than a possibility of relief to survive a motion to dismiss." Fowler, 578 F.3d at 210. That is, "all civil complaints must now set out "sufficient factual matter‟ to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‟" Id. at 210 (quoting Iqbal, 129 S.Ct. at 1948).

However, nothing in Twombly or Iqbal changed the other pleading standards for a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and the requirements of Fed. R. Civ. P. 8 must still be met. See Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal citations omitted). Fed. R. Civ. P. 8 requires a showing, rather than a blanket assertion, of entitlement to relief, and "contemplates the statement of circumstances, occurrences, and events in support of the claim presented and does not authorize a pleader‟s bare averment that he wants relief and is entitled to it." Twombly, 550 U.S. at 555 n.3 (internal citations and quotations omitted). Fed. R. Civ. P. 8(a)(2) holds that a pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court‟s jurisdiction, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Additionally, the Supreme Court did not abolish the Fed. R. Civ. P. 12(b)(6) requirement that "the facts must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 553).

When a complaint is pro se, the allegations should be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). This less stringent standard however, does not excuse the Plaintiff of the baseline requirements for pleading, as articulated above. Even if a complaint alleging a civil rights violation is pro se, dismissal for failure to state a claim is appropriate when it appears "beyond doubt that the plaintiff can prove no set ...


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