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Vanessa Cruz-Smith v. Michael Sinclair


August 18, 2011


The opinion of the court was delivered by: Juan R. Sanchez, J.


Plaintiff Vanessa Cruz-Smith, a police officer for the Borough of Nazareth (the Borough), brings employment discrimination claims against the Borough, former Chief of Police Michael Sinclair, current Chief of Police Thomas Trachta, and Borough Police Detective Frederick Lahovski pursuant to 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. Defendants ask this Court to dismiss Cruz-Smith's Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons set forth below, the motion will be granted in part and denied in part.


Cruz-Smith began working for the Borough as a police officer in April 2006. She believes she was both the first female and the first Puerto Rican police officer employed by the Borough. At some point during Cruz-Smith's employment, Sinclair told Cruz-Smith females had "no place in his department." Compl. ¶ 13. On another occasion, Sinclair advised Cruz-Smith not to "'advertise' her national origin/ethnicity because 'wetbacks' were not common in the area serviced by the Department." Id.

On August 27, 2008, Cruz-Smith and Lahovski were involved in an on-duty altercation with a criminal suspect who was later charged with aggravated assault against a police officer. Cruz-Smith was injured during the incident and was thereafter placed on off-duty status as a result of her injuries. Although Defendants knew the extent of Cruz-Smith's injuries, while she was off duty, Defendants attempted to restrict her continued access to worker's compensation and Heart and Lung Act benefits by challenging her medical documentation and her asserted inability to perform her normal duties. Defendants also petitioned to terminate Cruz-Smith's benefits, and attempted to discipline her for failing to bring her complete medical records to an independent medical examination Defendants had ordered.*fn2 Cruz-Smith alleges these actions were part of a campaign by Sinclair to remove her from her position "through the manipulation of work rules and standards, and their disparate application to [her]." Compl. ¶ 15.

On April 16, 2009, while Cruz-Smith was still off duty, a preliminary hearing was held in the criminal case which arose out of the August 27, 2008, incident. Lahovski knowingly made insufficient attempts to notify Cruz-Smith of the hearing, allegedly at Sinclair's behest. Because Cruz-Smith did not receive notice of the hearing, she did not attend it. At the hearing, the aggravated assault charges were withdrawn.

Soon after the hearing, Cruz-Smith contacted the police association's attorney, who sent correspondence regarding the problem of Cruz-Smith not receiving adequate notice of scheduled hearings.*fn3 Defendants nevertheless initiated disciplinary proceedings against Cruz-Smith relating to the April 16, 2009, hearing, and the Borough terminated her employment effective June 1, 2009.

Cruz-Smith filed a grievance regarding her termination and was ultimately reinstated to her position by arbitration award of September 28, 2009. Following Cruz-Smith's reinstatement, Trachta, who had replaced Sinclair as Chief of Police, "initiated inquiries and further proceedings to obstruct and delay [Cruz-Smith's] continued receipt of worker's compensation and [H]eart and

[L]ung [A]ct benefits," which benefits have since been discontinued. Compl. ¶ 27.

Cruz-Smith alleges she was subjected to discriminatory treatment based on her gender and national origin and to a hostile work environment, in violation of the Fourteenth Amendment's Equal Protection Clause, Title VII, and the PHRA. She also alleges she was subjected to retaliation for speaking out on matters of public concern and petitioning the government for redress of her grievances, in violation of the First Amendment. Cruz-Smith brings her constitutional claims against all Defendants pursuant to 42 U.S.C. § 1983*fn4 and asserts Title VII and PHRA claims against only the Borough.


To survive a motion to dismiss pursuant to Rule 12(b)(6), "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 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating such a motion, a district court first should separate the legal and factual elements of the plaintiff's claims. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11. 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.'" Id. at 211 (quoting Iqbal, 129 S. Ct. at 1950).

Defendants first argue Cruz-Smith's claims for gender and national origin discrimination should be dismissed because Cruz-Smith has not alleged facts that plausibly suggest she was subjected to an adverse employment action because of her gender or national origin, as required to state a discriminatory treatment claim under the Equal Protection Clause, Title VII, or the PHRA.*fn5

See, e.g., Zimmer v. Sec'y of Dep't of Homeland Sec., 297 F. App'x 88, 89 (3d Cir. 2008) (upholding the dismissal of a plaintiff's race discrimination claim where the complaint "d[id] not contain factual matter that would plausibly suggest that he was terminated on the basis of race"). Specifically, Defendants argue Sinclair's alleged statements are "insufficient to give rise to a causal connection between [Cruz-Smith's] gender [or national origin] and any alleged adverse job action." Defs.' Mem. in Supp. of Mot. to Dismiss 8, 11. Defendants also argue the Complaint fails to allege any facts demonstrating a causal connection between Cruz-Smith's gender or national origin and any action taken by Trachta or Lahovski.

In support of their argument regarding Sinclair's statements, Defendants rely on Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509 (3d Cir. 1993), and Pivirotto v. Innovative Systems, Inc., 191 F.3d 344 (3d Cir. 1999), in which the Third Circuit held stray sexist comments by individuals not involved in a challenged adverse employment decision were insufficient, standing alone, to support a finding of gender discrimination.*fn6 Both Ezold and Pivirotto, however, were decided on review of a judgment following a trial, and the Third Circuit thus considered whether the comments at issue were sufficient to support a finding that discrimination was more likely than not a determinative cause of the adverse employment action. This case, in contrast, is before the Court on a motion to dismiss, and the question, therefore, is whether Cruz-Smith has "put forth allegations that 'raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Fowler, 578 F.3d at 213 (citation omitted).

Taking the factual allegations of the Complaint as true, at some point during Cruz-Smith's employment, Sinclair, the Chief of Police, told Cruz-Smith, who was both the first female and the first Puerto Rican police officer employed by the Borough, that "females have no place in his department" and referred to her as a "wetback." Compl. ¶ 13. When Cruz-Smith was on off-duty status due to her job-related injuries, Sinclair made efforts to ensure Cruz-Smith did not receive notice of a preliminary hearing she was supposed to attend and then initiated disciplinary proceedings against her relating to the preliminary hearing, which proceedings led to her termination. These allegations are sufficient at the motion to dismiss stage to render plausible Cruz-Smith's claim that Sinclair's actions toward Cruz-Smith were based on her gender and/or national origin.*fn7

The same is not true of Trachta and Lahovski, neither of whom is alleged to have made any of the derogatory remarks about Cruz-Smith. To bring a successful § 1983 claim for denial of equal protection against an individual government defendant, a plaintiff must prove the existence of purposeful discrimination by the defendant. Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990). The plaintiff must show "some affirmative conduct by the [defendant] that played a role in the discrimination," and the discrimination must be based on the plaintiff's membership in a protected class. Id. The Complaint alleges both Trachta and Lahovski participated in efforts to terminate Cruz-Smith's receipt of worker's compensation and Heart and Lung Act benefits. The Complaint also alleges Lahovski participated in efforts to set Cruz-Smith up for improper disciplinary action by making "knowingly insufficient attempts" to notify her of a preliminary hearing she was supposed to attend and then giving misleading information about those attempts, all at Sinclair's behest.*fn8 Compl. ¶ 23. Neither Defendant, however, is alleged to have taken any action against Cruz-Smith because of her gender or national origin, or even to have known of Sinclair's discriminatory purpose. Accordingly, Cruz-Smith's discrimination claim will be dismissed as to Trachta and Lahovski.

Defendants next argue Cruz-Smith's hostile work environment claims should be dismissed because the Complaint fails to allege discriminatory conduct that is sufficiently "severe or pervasive" to be actionable.*fn9 To establish the existence of an actionable hostile work environment, a plaintiff must prove (1) she suffered intentional discrimination because of a protected characteristic; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable person of the same protected class in her position; and (5) a basis for respondeat superior liability. See Davis v. City of Newark, 285 F. App'x 899, 902 (3d Cir. 2008). To determine whether alleged harassment rises to the level of an actionable hostile work environment, a court must consider the totality of the circumstances, including "'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). In evaluating the totality of the circumstances, a court must consider incidents of facially neutral mistreatment which may be motivated by discriminatory animus as well as overtly discriminatory actions. See Cardenas v. Massey, 269 F.3d 251, 261-62 (3d Cir. 2001) ("[T]he advent of more sophisticated and subtle forms of discrimination requires that [a court] analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment, in evaluating a hostile work environment claim.").

Defendants argue Cruz-Smith's hostile work environment claims must fail because the only overtly discriminatory conduct alleged is Sinclair's two comments, one about Cruz-Smith's gender and the other about her national origin. While these allegations, standing alone, plainly do not rise to the level of severe or pervasive harassment, Cruz-Smith has also alleged a gender- and national origin-motivated campaign by Sinclair to have her terminated. Cruz-Smith alleges that as part of this campaign, Sinclair directed Lahovski not to inform her of a preliminary hearing which she was required to attend and then to give misleading information about his efforts to contact her while Defendants initiated disciplinary proceedings against her, which resulted in her termination on grounds that were ultimately reversed. Cruz-Smith further alleges Defendants made efforts to terminate her worker's compensation and Heart and Lung Act benefits. Taken together, these allegations are sufficient at the pleading stage to state a claim for a hostile work environment based on gender and national origin against Sinclair and the Borough, but not against Trachta and Lahovski who are not alleged to have acted based on Cruz-Smith's gender or national origin. See Carver v. City of Trenton, 420 F.3d 243, 263-64 (3d Cir. 2005) (suggesting that racist comments directed to persons other than the plaintiff, coupled with evidence that defendants wrote intentionally false memos and recommended the plaintiff for psychiatric treatment based on his race, might be sufficient to establish a hostile work environment).*fn10

Dismissal is also warranted as to Cruz-Smith's First Amendment retaliation claim because Cruz-Smith has failed to allege she engaged in speech or petitioning activity regarding a matter of public concern. See Borough of Duryea v. Guarnieri, 131 S. Ct. 2488, 2491-93, 2500 (2011) (holding a public employee who sues a government employer under either the Speech Clause or the Petition Clause of the First Amendment must show she "spoke as a citizen on a matter of public concern"). Cruz-Smith argues her filing of "claims for workers compensation benefits and [H]eart and [L]ung [A]ct benefits . . . are clearly the types of petitioning activities that are protected by the First Amendment." Pl.'s Opp'n to Mot. to Dismiss 11. Although the Third Circuit has characterized worker's compensation claims as "examples of formal petitions" protected under the Petitions Clause, Foraker v. Chaffinch, 501 F.3d 231, 236 (3d Cir. 2007), such claims do not implicate a matter of public concern insofar as they seek only "an award of individualized benefits for a specific job-related injury." Hoeft v. Dommisee, 352 F. App'x 77, 81 (7th Cir. 2009) (holding a conspiracy aimed at getting a plaintiff fired after he announced his intention to apply for worker's compensation would not violate the First Amendment because the plaintiff's desire for such benefits implicated only a personal interest).*fn11 Because Cruz-Smith does not allege her claims for worker's compensation and Heart and Lung Act benefits sought anything other than an award of individual benefits, the filing of such claims cannot form the basis of a First Amendment retaliation claim. See Roberts v. Ferman, No. 09-4895, 2011 WL 2937398, at *14 (E.D. Pa. July 20, 2011) (holding a plaintiff's filing a claim for Heart and Lung Act benefits and worker's compensation benefits, through which the plaintiff sought to collect benefits due to him, did not address matters of public concern).*fn12

Defendants also argue Cruz-Smith's § 1983 claims against the Borough should be dismissed because Cruz-Smith has not alleged a basis for municipal liability. A plaintiff seeking to impose liability on a municipality under § 1983 must "identify a municipal 'policy' or 'custom' that caused the plaintiff's injury." Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997). The plaintiff must not only identify conduct properly attributable to the municipality, but must "show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights."*fn13 Id. at 404. Cruz-Smith argues the Complaint adequately alleges a § 1983 equal protection claim against the Borough because it alleges the Borough itself terminated Cruz-Smith's employment knowing of Sinclair's "racist and sexist propensities." Pl.'s Opp'n to Mot. to Dismiss 13-14; Compl. ¶ 14. The mere allegation that the Borough and its elected officials knew of such "racist and sexist propensities," however, is insufficient to render plausible Cruz-Smith's claim that the Borough's decision to terminate her following disciplinary proceedings at which Lahovski allegedly provided misleading information was based on Cruz-Smith's gender or national origin. See Walsifer v. Borough v. Belmar, 262 F. App'x 421, 425 (3d Cir. 2008) (holding a Borough could be liable under § 1983 for the Borough Council's conduct in acting on a police chief's allegedly discriminatory recommendation "only if the Council's decision was improperly motivated"). Cruz-Smith's § 1983 claim against the Borough will therefore be dismissed.

Finally, Defendants argue Cruz-Smith's demand for punitive damages should be stricken. Insofar as Cruz-Smith seeks such damages under the PHRA, the demand will be stricken because the PHRA does not permit such damages. Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 570 n.3 (3d Cir. 2002). The request is otherwise denied without prejudice to reassertion on summary judgment.

For the reasons set forth above, the Court will grant Defendants' motion to dismiss Cruz- Smith's § 1983 equal protection claims against Trachta, Lahovski, and the Borough, and her § 1983 First Amendment retaliation claim against all Defendants. The Court will also strike Cruz-Smith's request for punitive damages under the PHRA. The balance of Defendants' motion will be denied. In civil rights cases, "if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a curative amendment, unless an amendment would be inequitable or futile." Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Because the Court cannot conclude amendment would be futile, Cruz-Smith will be permitted to file an amended complaint within 30 days of the date of this Memorandum.

An appropriate order follows.


Juan R. Sanchez, J.

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