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Brandon Harrell v. Kellogg Company

September 10, 2012


The opinion of the court was delivered by: Anita B. Brody, J.


Plaintiff Brandon Harrell ("Harrell") brings this 42 U.S.C. §1981 action against Defendants Kellogg Company, Keebler Company,*fn1 and Steven Chelston (collectively, "Kellogg") for racial discrimination (Count I), retaliation (Count II), and a hostile work environment (Count III), stemming from his work in Kellogg's warehouse. Harrell seeks back pay, front pay, as well as damages for pain and suffering and punitive damages. Kellogg moves to dismiss all counts.*fn2

Federal question jurisdiction is proper pursuant to 28 U.S.C. §1331. For the reasons set forth below, Kellogg's motion to dismiss will be denied.


Brandon Harrell is an African-American male and former Kellogg employee. On March 13, 2006, Kellogg hired Harrell as a warehouseman at its Philadelphia, Pennsylvania distribution center. Harrell worked for Kellogg for approximately five years. He performed general manual tasks that involved physical labor. Kellogg employed approximately fifty employees in the warehouse. Steven Chelston, a Caucasian male, supervised Harrell. Harrell was represented by the Food Driver Salesman, Dairy and Ice Cream Workers Union, Local No. 463 ("Union"). In 2007, the Union entered into a collective-bargaining agreement ("CBA") with Kellogg.

On February 17, 2010, Harrell injured his knee while lifting products at work.*fn4 The next day, a physician representing Kellogg examined the knee and imposed work-related restrictions. Harrell alleges that Kellogg did not honor those restrictions due to his race.*fn5 Instead, Kellogg assigned Harrell, an experienced African-American employee, the same pre-injury work duties. The assignments included walking and heavy lifting. Harrell repeatedly complained to management, including African-American supervisor Maurice Seally. Kellogg did not assign him to light-duty work until a physician drained fluid from his knee in April. On account of his race, Harrell was not assigned to the areas typically reserved for light-duty work. Instead, Kellogg placed him near a high-speed forklift operation and behind high-stacked pallets of product. These assignments were not only dangerous but also near the warehouse's trash area. Chelston told Harrell that he was not permitted to talk, read, work, or even answer emergency phone calls. Chelston then moved Harrell to the back of the warehouse where the other employees could not see the African-American warehouseman. He remained there for a week. Kellogg finally relocated Harrell to a location outside of Seally's office. But at Chelston's behest, Seally told Harrell to move his seat further from the office. The new dangerous location was near a metal guard rail and the warehouse's electrical boxes. Kellogg informed Harrell that he could be terminated if he did not remain in the unsafe location. Seally then told Harrell that Kellogg was not acting in the best interests of African-American employees.

In May 2010, Harrell filed a Title VII complaint of racial discrimination with the Equal Employment Opportunity Commission ("EEOC"). In June 2010, after learning of the EEOC complaint, Kellogg informed Harrell that it had no work for him and effectively terminated him. Meanwhile, Kellogg permitted a less senior Caucasian employee to perform light-duty sedentary work that Harrell could have performed.


Kellogg brings a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1)and 12(b)(6). Kellogg argues that the CBA's mandatory arbitration provision divests this Court of subject matter jurisdiction under 12(b)(1). The Third Circuit, however, has "support[ed] the traditional practice of treating a motion to compel arbitration as a motion to dismiss for failure to state a claim upon which relief can be granted." Palcko v. Airborne Express, Inc., 372 F.3d 588, 597 (3d Cir. 2004); see also Nationwide Ins. Co. of Columbus, Ohio v. Patterson, 953 F.2d 44, 45 n.1 (3d Cir. 1991) ("Dismissal of a declaratory judgment action because the dispute is covered by an arbitration provision is generally effected under Rule 12(b)(6) covering dismissals for failure to state a claim upon which relief can be granted . . . ."). Therefore, I will review Kellogg's motion to dismiss under Rule 12(b)(6).

Under Rule 12(b)(6), a court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). This "assumption of truth" is "inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).The complaint must allege facts sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Rather, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

"As a general matter, a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings. However, an exception to the general rule is that a document integral to or explicitly relied upon in the complaint may be considered . . . ." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis omitted) (citations omitted) (internal quotation marks omitted). Thus, a court may "consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994). Further, "a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document."*fn6 Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).


Harrell brings claims under 42 U.S.C. ยง 1981, alleging racial discrimination, retaliation, and a hostile work environment. Kellogg moves to dismiss the claims for three reasons: (1) Harrell's claims are directly governed by the CBA, which requires him to arbitrate all grievances; (2) Harrell's claims require interpretation of the CBA; therefore they must go to arbitration; and ...

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