MEMORANDUM OF LAW RE DEFENDANTS’ MOTIONS TO DISMISS THE SECOND AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM
MICHAEL M. BAYLSON, U.S.D.J.
Plaintiff is a black, female carpenter who was discharged from her employment with the Philadelphia Housing Authority (“PHA”) on March 24, 2011. Plaintiff now brings an employment discrimination action against her former employer, PHA, and the United Brotherhood of Carpenters (the “Union”), her union. Plaintiff’s second amended complaint alleges five counts. Plaintiff has brought
(1) race and gender discrimination claims under Title VII, 42 U.S.C. § 2000e et seq.;
(2) retaliation claims under Title VII, 42 U.S.C. § 2000e-3(a); and
(3) race and gender discrimination claims under the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. § 951 et seq., against her employer, PHA, and the Union, as well as Edward Coryell, the Union’s Sr. Executive Secretary, and Mark Durkalec, the Union’s Business Agent, in their official and individual capacities. Plaintiff has also asserted
(4) a breach of contract claim against PHA for paying her less than what her Union’s contract with PHA required; and
(5) a claim for breach of the duty of fair representation against the Union under 29 U.S.C. § 141 et seq.
Plaintiff’s second amended complaint does not identify which factual allegations pertain to which counts and each count incorporates all preceding paragraphs—including the paragraphs of previous counts. Additionally, Plaintiff only generally asserts Title VII and state law violations based on gender and race discrimination. Giving Plaintiff’s complaint the benefit of liberal construction, it asserts civil rights violations based on theories of retaliation, disparate treatment, and hostile work environment—the disparate treatment and hostile work environment theories are not expressly enunciated but are fairy implied from the allegations in the complaint.
PHA’s Motion to Dismiss (ECF 20) contests Plaintiff’s hostile work environment and disparate treatment claims, as well as her breach of contract claim. Plaintiff does not contest Plaintiff’s retaliation claim, and her claim for violation of duty of fair representation is directed at the Union only.
The Union’s Motion to Dismiss (ECF 25) contests Plaintiff’s hostile work environment, disparate treatment, and retaliation claims, as well as her violation of duty of fair representation claim. Plaintiff’s breach of contract claim is not directed at the Union.
PHA hired Plaintiff in 2008 based on a referral from the Union. She alleges in her complaint that from 2008 to 2011 she experienced a variety of hardships. Plaintiff alleges that
(1) she was sexually assaulted on the job by a fellow employee in August 2009 (ECF 28 ¶ 26);
(2) she was subject to sexist comments by her co-workers (ECF 28 ¶¶ 26, 32);
(3) she was assigned to projects with less safe and less sanitary work conditions than white, male workers (ECF 28 ¶¶ 26, 40-42);
(4) she was provided with inferior tools for her projects than those given to white, male workers (ECF 28 ¶ 26, 43-47);
(5) though she repeatedly complained of this treatment from 2009 through March 2011 to both PHA and the Union, they did nothing (ECF 28 ¶ 25, 29, 34-39, 50);
(6) PHA and the Union gave her unsafe and unsanitary work assignments, inadequate tools, failed to act on her complaints of harassment, and placed her on assignments with co-workers about whom she had complained of past harassment in retaliation for her ...