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Sherman Wilkins v. Bozzuto & Associates


February 28, 2013


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


Plaintiff has brought suit against his former employer alleging interference with his contract of employment in violation of 42 U.S.C. § 1981. Defendant Bozzuto & Associates, Inc. *fn1 has moved to dismiss the complaint.


This is the second suit Plaintiff has brought concerning the termination of his employment. On May 8, 2009, Plaintiff filed an action in the Court of Common Pleas of Philadelphia County, pleading one count of wrongful termination and one count of racial discrimination. Defendant removed the case to this Court, and Plaintiff filed an amended complaint alleging claims pursuant to Title VII of the Civil Rights Act of 1964 *fn2 and 42 U.S.C. § 1981. Defendant filed a motion to dismiss. The Court granted the motion and dismissed the amended complaint without prejudice on December 10, 2009. *fn3 Plaintiff filed the current case on June 13, 2012, alleging only a claim pursuant to § 1981. *fn4

Plaintiff, an African-American man, alleges the following facts, which are assumed to be true for purposes of the motion to dismiss. Plaintiff worked for Defendant from July 2007 until June 13, 2008, as a Maintenance Technician at the Riverview Landing apartment complex. On April 3, 2008, Bob Antucci, a Caucasian man, replaced Plaintiff's supervisor, Michael Berryman, an African-American man. Plaintiff alleges that while Mr. Antucci was his supervisor, he did not receive any complaints from residents regarding his work. On June 13, 2008, Plaintiff was terminated, and was replaced by a Caucasian man. Upon his termination, Property Manager Tracy Ungareeta told Plaintiff it "just was not working out." Plaintiff also alleges that he was told he was fired for missing a meeting, even though 1) he was not required to attend the meeting, 2) he in fact did attend, and 3) he advised Defendant's representatives that he had attended. Plaintiff alleges that his dismissal was a pretext for discrimination and that Defendant had planned to terminate his employment before the meeting even occurred.


Dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" does not possess enough substance to show that plaintiff is entitled to relief. *fn5 In determining whether a motion to dismiss is appropriate the court must consider those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party. *fn6 Courts are not bound to accept as true legal conclusions couched as factual allegations. *fn7 Something more than a mere possibility of a claim must be alleged; the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." *fn8 The complaint must set forth direct or inferential allegations with regard to all the material elements necessary to sustain recovery under some viable legal theory. *fn9 The court has no duty to "conjure up unpleaded facts that might turn a frivolous claim . . . into a substantial one." *fn10


Section 1981 provides equal rights for all to "make and enforce contracts" and to enjoy "the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." *fn11 In the employment context, § 1981 claims are analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green. *fn12 In order to state a prima facie case, Plaintiff must allege that "(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." *fn13 The Court of Appeals has held that "the bar for establishing a prima facie case of employment discrimination is low." *fn14 In the context of a motion to dismiss, the question is not whether Plaintiff will be able to prove the elements, but only whether he has "put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." *fn15 There is no dispute that Plaintiff has alleged the first three elements of the prima facie case; the question is whether Plaintiff has raised an inference that discrimination was the reason for his termination.

In dismissing the earlier action, the Court held that Plaintiff had not stated a claim and had simply stated "in conclusory fashion, that his firing was related to his race, based upon the race of his supervisor, his lack of knowledge of complaints filed regarding his work within the relevant time period, and the unverified race of the employee who was subsequently hired to replace him." *fn16 Plaintiff has added two additional allegations that were not in the earlier action: that he was terminated for the spurious reason of missing a meeting, which Defendant was told he had attended, and that he was replaced by a Caucasian man named "Mike" (in the earlier action, Plaintiff had alleged only his belief that he was replaced by someone who was not African-American). The Court concludes that these additional allegations are sufficient to give rise to a "reasonable inference that [Defendant] intended to discriminate against [Plaintiff] on the basis of race." *fn17 Although Plaintiff has not alleged that the new supervisor had any race-based antagonism toward Plaintiff, Plaintiff alleges that the reason given for his termination was false, and that he was replaced by a Caucasian individual, which is enough to permit the case to proceed to discovery. *fn18


Because the Court cannot conclude as a matter of law that Plaintiff will be unable to establish his claim, the motion to dismiss will be denied. An order will be entered.

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