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Leif Henry v. City of Allentown

January 7, 2013

LEIF HENRY,
PLAINTIFF,
v.
CITY OF ALLENTOWN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Officer Leif Henry filed this employment discrimination action against the City of Allentown and Chief of Police Roger MacLean (collectively, Defendants). Henry alleges violations of 42 U.S.C. § 1981, the Rehabilitation Act (RA), 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. He also asserts a procedural due process claim pursuant to 42 U.S.C. § 1983. Defendants moved to dismiss Counts I, II, and IV in their entirety and Count III as to Defendant MacLean. For the following reasons, I will grant the motion.

I. BACKGROUND

Henry, a Hispanic officer in the Allentown City Police Department's K-9 unit, was "reassigned to a lesser position after the death of his dog," purportedly because he mishandled the donation of a replacement canine. Am. Compl. ¶ 4. He was "replaced by an officer who did not have the same credentials." Id. ¶ 13.

Henry also suffers from "severe migraine headaches," which prompted his physician to request that Henry "not be required to work night shift." Id. ¶ 5. Defendants refused the request. Id. ¶ 6. Additionally, Defendant MacLean sent text messages to a friend in which MacLean "ridiculed Plaintiff's accommodation requests and indicated that he harbored an animus against ADA qualifying officers." Id. ¶ 9.

Henry alleges that "white officers are being treated preferentially." Id. ¶ 7. He claims he was "made to do menial and demeaning tasks . . . due to Hispanic origin," such as retrieving his supervisor's lost pen. Id. ¶ 8. He also claims he was "[o]n many occasions . . . called upon to 'translate' for the Department[] in its dealings with Hispanic members of the community." Id. ¶ 12.

II. STANDARD OF REVIEW*fn1

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "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.' A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "[C]onclusory or 'bare-bones' allegations will no[t] . . . survive a motion to dismiss." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

III. DISCUSSION

A. Section 1981 (Count I)

Absent direct evidence, courts analyze disparate treatment claims under § 1981 pursuant to the McDonnell Douglas burden-shifting scheme. Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999). Accordingly, the burden of production first rests with Henry to establish a prima facie case of discrimination. To do so in the reassignment context, Henry must show (1) he is a member of a protected class, (2) he satisfactorily performed the duties required by his position, (3) he suffered an adverse employment action, and (4) either similarly-situated non-members of the protected class were treated more favorably or the adverse job action occurred under circumstances that give rise to an inference of discrimination. Langley v. Merck & Co., Inc., 186 F. App'x 258, 259 (3d Cir. 2006). Defendants contest only the fourth prong. I agree that Henry's § 1981 claim falls short.

Henry's allegation that "Caucasian employees with similar work records were not subjected to reassignment under similar circumstances," Am. Compl. ¶ 14, simply lacks underlying factual matter sufficient to state a plausible claim. See, e.g., Wise v. Estes, CIV.A. 10-481 (JLL), 2010 WL 2757273, at *4 (D.N.J. July 6, 2010) (finding plaintiff's "broad conclusory statements that he [was] more harshly reprimanded than non-minorities" insufficient to state plausible § 1981 claim). That Henry was asked to retrieve his supervisor's lost pen and translate conversations with Hispanic community members is not revealing of discriminatory animus, see, e.g., Vazquez v. Navistar Int'l Transp., 2:09-CV-434 JD, 2012 WL 1095223, at *6 (N.D. Ind. Mar. 30, 2012) ("Asking [a] bilingual person . . . to translate a conversation is not evidence of discriminatory intent."), and in any event, these allegations are wholly unconnected to Henry's reassignment and thus are not "circumstances that raise an inference of discriminatory action," Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). That leaves Henry's claim that he was "replaced by an officer who did not have the same credentials as [he] possessed." Am. Compl. ¶ 13. He does not allege the replacement officer was non-Hispanic. While Henry need not show he was replaced by someone outside his class in order to make out a prima facie case, Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 355 (3d Cir. 1999), he ultimately "must establish some causal nexus between his membership in a protected class and the decision to [reassign] him," Sarullo, 352 F.3d at 798. Because Henry has not done this, his § 1981 claim fails.

Count I is therefore dismissed, without prejudice. Consistent with this memorandum and its accompanying order, Henry may file a second amended complaint stating plausible § 1981 discrimination claims against Defendants City of Allentown and MacLean.*fn2 Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008) (holding that district court must grant leave to amend factually deficient ...


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