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Kellen Mcclendon v. Charles J. Dougherty

February 15, 2011

KELLEN MCCLENDON,
PLAINTIFF,
v.
CHARLES J. DOUGHERTY, AN INDIVIDUAL; RALPH L. PEARSON, AN INDIVIDUAL; AND DUQUESNE UNIVERSTIY, A PENNSYLVANIA CORPORATION,
DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. Introduction

Presently before the Court is a Motion to Dismiss Certain Claims under Rule 12(b)(6) filed by Defendants Charles J. Dougherty, Ralph L. Pearson, and Duquesne University (hereinafter "Defendants"). (Docket No. [6]). Plaintiff Kellen McClendon ("Plaintiff") filed this case claiming that he has been and continues to be the subject of racial discrimination in the form of the denial of consideration for a decanal position at Duquesne as the result of racial bias, exposure to a hostile work environment, retaliation for filing a complaint with the Pennsylvania Human Relations Commission ("PHRC"), and interference with his contractual rights under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Pennsylvania Human Relations Act ("PHRA") and the Reconstruction Civil Rights Act, 42 U.S.C. §1981 ("§1981"). Defendants seek dismissal of Plaintiff‟s claims for Defendants‟ failure to consider his application for the position of Duquesne University School of Law ("Law School") dean during the 2004-2005 decanal search on the basis of race, any claim based on the Law School decanal search that took place in 2009-2010, claims of hostile work environment and claims for failure to investigate. Defendants assert that Plaintiff has not pled sufficient facts to render his claims of retaliation plausible as required by the Supreme Court‟s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal,--- U.S. ---, 129 S.Ct. 1937, 1949 (2009). Id. For the reasons discussed herein, Defendants‟ Motion (Docket No [19]) is GRANTED.

II. Relevant Factual Background

Because this matter comes to this court on a Rule 12(b)(6) Motion to Dismiss, the factual allegations set forth in Plaintiff‟s Amended Complaint are accepted as true. Hemi Group, LLC. v. City of N.Y., --- U.S. ---, 130 S. Ct. 983, 986-87 (2010)(citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993)). The pertinent facts are as follows.

Plaintiff is an individual of African American descent who has been employed pursuant to a written contract by Defendant Duquesne University ("Duquesne") since 1989 and is currently a tenured associate professor of law at the Law School. (Docket No. 1, ¶¶ 2, 6-7). In the fall of 2004, Duquesne impaneled a decanal search committee to fill the vacant position of dean of the Law School. (Docket No. 1, ¶ 9). On October 29, 2004, Plaintiff submitted an application to the decanal search committee, which was chaired by Defendant Ralph L. Pearson ("Pearson") so that Plaintiff could be considered for the position of Dean. (Docket No. 1, ¶ 10). Plaintiff was notified by Pearson that his application would not be given sufficient consideration to warrant an initial interview on November 11, 2004. (Docket No. 1, ¶ 11). The vote of the decanal search committee to not consider Plaintiff was four to three with Pearson voting with the majority. (Docket No. 1, ¶ 12). The next day, November 12, 2004, Pearson informed another member of the search committee that he voted against giving Plaintiff an interview because he did not want to advance a "token" to the interview stage of the search. (Docket No. 1, ¶ 13). After Plaintiff was informed about Pearson‟s "token" remark, Plaintiff confronted Pearson and asked if Pearson had, in fact, made the remark. Pearson denied making it. (Docket No. 1, ¶¶ 14-15). Subsequently, Pearson admitted that he had referred to Plaintiff as a "token" during the decanal search in 2004 on March 20, 2009. Defendant Charles J. Dougherty (Dougherty), President of Duquesne, was present at the meeting and accused Plaintiff of making baseless accusations of racism stating that it is not a racist remark for a white man to refer to an African American man as a "token." (Docket No. 1, ¶ 18).

In December of 2008, the deanship of the law school became vacant again. At that time, Professor Vanessa Browne-Barbour ("Browne-Barbour")*fn1 , a woman of African American descent, was a tenured professor of law and associate dean of the law school. (Docket No. 1, ¶¶ 20-21). Dougherty was responsible for the appointment of an interim dean. The practice and policy of Duquesne was to appoint associate deans as interim deans when a vacancy in a dean position occurred. (Docket No. 1, ¶¶ 22-23). Regardless of the policy and practice, Dougherty appointed Professor Kenneth Gormley ("Gormley"), a Caucasian male member of the law school faculty to the interim dean position, despite the fact Gormley had no previous decanal or administrative experience of any kind. (Docket No. 1, ¶¶ 24-25). Dougherty did not consider or even interview Browne-Barbour for the interim decanal position. (Docket No. 1, ¶ 26).

Dougherty appointed Pearson to chair this committee to fill the vacant Law School dean position despite knowing that Pearson had made racially charged remarks about Plaintiff during the 2004-2005 decanal search which demonstrated Pearson‟s racial bias. (Docket No. 1, ¶¶ 27-28). Because Dougherty had appointed Gormley as interim dean and had not even considered Browne-Barbour, and because Dougherty appointed Pearson to lead the decanal search committee, Plaintiff concluded that to apply for the permanent law school deanship would be futile. Plaintiff, therefore, did not apply for the position. (Docket No. 1, ¶¶ 29-30).

During the described time period, Duquesne had created and utilized affirmative action policies and procedures to internally investigate all complaints arising from actions of university employees implicating racial bias and related racially discriminatory conduct. (Docket No. 1, ¶ 35). Dougherty and Pearson were responsible for the implementation of these policies and procedures. (Docket No. 1, ¶ 36). One of the policies obligated the Affirmative Action officer to terminate any ongoing investigations whenever the complaining employee filed any complaint with an outside agency. (Docket No. 1, ¶ 37). On July 22, 2009 Plaintiff filed a complaint regarding the matters set forth above with Duquesne‟s Affirmative Action officer, and an investigation into the complained of matters was undertaken. (Docket No. 1, ¶¶ 38-39). Plaintiff filed a complaint with the Pennsylvania Human Relations Commission ("PHRC") regarding these same matters on September 2, 2009. As a result, Plaintiff was notified that Duquesne‟s internal investigation into his complaint had been terminated pursuant to the previously identified policy. (Docket No. 1, ¶¶ 40-41).

Plaintiff argues that all of these actions on the part of the Defendants constitute violations of his rights to be free from racial discrimination under Title VII, the PHRA and §1981.

III. Relevant Procedural History

In his complaint with the Pennsylvania Human Relations Commission ("PHRC") Plaintiff complains he was subjected to unlawful race discrimination. (Docket No. 1, ¶ 40 and Docket No. 5, Ex. A). Thirteen months later, Plaintiff filed a complaint with this court alleging that he has been and continues to be the subject of racial discrimination in the form of the denial of consideration for a decanal position at Duquesne as the result of racial bias, exposure to a hostile work environment, retaliation for filing a complaint with the PHRC, and interference with his contractual rights under Title VII, the PHRA and §1981. Defendants filed an Answer raising a number of defenses on November 9, 2010 (Docket No. 4). At or about the same time, the instant motion to dismiss was filed (Docket No. 5) along with a supporting brief. (Docket No. 6).

Defendants seek dismissal of Plaintiff‟s claims based on Defendant‟s failure to consider his application for the position of Law School dean during the 2004-2005 decanal search arguing that that the claim is time barred as having been filed more than one hundred eighty days after the alleged unlawful employment practice occurred. Defendants also seek the dismissal of any claim based on the Law School decanal search that took place in 2009-2010 because Plaintiff did not apply for that position. Defendants further seek the dismissal of claims of hostile work environment asserting that the facts as alleged do not constitute pervasive and regular harassment. Lastly, Defendants seek the dismissal of claims for failure to investigate arguing that no such duty exists under Title VII and the PHRA. To this end, Defendant asserts that Plaintiff has not pled sufficient facts to render his claims plausible as required by the Supreme Court‟s decisions in Twombly and Iqbal, supra. Plaintiff has responded by filing a brief in opposition on November 29, 2010 (Docket No. 15). In turn, Defendant filed its reply brief on December 13, 2010. (Docket No. 16). Thereafter the parties proceeded to mediation which was not fruitful. (Docket No. 17). As briefing has concluded, the motion is ripe for disposition and the Court now addresses it.

IV. Legal Standard

As correctly noted by Plaintiff, Defendants‟ pleading is properly addressed as a Motion for Judgment on the Pleadings as it was filed after an answer to the complaint was filed by the defendants. See Turbe v. Government of the Virgin Isles, 938 F.2d 427, 428 (3d. Cir. 1991); Leamer v, Fauver, 288 F.3d 532, 535 (3d Cir. 2002); Wright v. Evans, 2009 WL 799946 (D.N.J. March 24, 2009). Under Third Circuit precedent, however, when deciding a motion for judgment on the pleadings under Rule 12(c) which raises the defense that Plaintiff has failed to state a claim upon which relief can be based, the Court should "apply the same standards as under Rule 12(b)(6)." Turbe, at 428. Accordingly, this Court will thus address the merits of the Defendants‟ motions as though they had been submitted as motions under Rule 12(b)(6).

On a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, the Court must " "accept all factual allegations as true, construe the complaint in the light most favorable to Plaintiff, and determine whether, under any reasonable reading of the complaint, Plaintiff may be entitled to relief.‟ " Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002)).

To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face.‟" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 544); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); and FED. R. CIV. P. 8(a)(2) (providing that a valid complaint requires only "a short and plain statement of the claim" showing entitlement to relief). The Supreme Court in Iqbal clarified that the decision in Twombly "expounded the pleading standard for "all civil actions.‟" Iqbal, 129 S.Ct. at 1953; Fowler, 578 F.3d at 210-11. The Court further explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Iqbal, 129 S.Ct. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555); see also Fowler, 578 F.3d at 210; and Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).

The determination of whether a complainant has sufficiently pled a claim "is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S. at 556); see also Fowler, 578 F.3d at 210-11 (holding that in light of Iqbal, a district court should first separate the factual and legal elements of a claim and then, accepting the "well-pleaded facts as true," "determine whether the facts" pled are sufficient to show a "plausible claim for relief."). Ultimately, to survive a motion to dismiss, a plaintiff must plead "factual content that ...


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