United States District Court, E.D. Pennsylvania
JEFFERY L. SCHMEHL, District Judge.
Plaintiff filed this suit containing three counts related to alleged workplace discrimination. Defendant has moved to dismiss, arguing primarily that once Plaintiff's allegations are limited to those occurring within the prescribed time window, the claims are unsustainable. The time limit does not destroy Plaintiff's claims as simply and completely as Defendant contends, and though Plaintiff's complaint lacks detail and specificity in several respects, the Court will grant the motion to dismiss only in part and without prejudice.
Factual and Procedural Background
Plaintiff Jean Elizabeth Jones initially filed suit along with two other plaintiffs asserting discrimination claims against their employer, Defendant Aria Health. Aria operates a facility formerly known as Frankford Hospital and employed Plaintiff as a housekeeper for nineteen years. On January 4, 2013, Judge Kelly determined that the three plaintiffs' claims were not sufficiently related and ordered Plaintiff Jones and one of the others to refile separate complaints within thirty days. The separate suits would be deemed filed on the date of the original joint complaint, May 25, 2012. Plaintiff did file a separate complaint, but did not do so until February 28, 2013, more than three weeks beyond the time allotted by Judge Kelly's order.
Plaintiff alleges that, apparently in August 2009,  she got into a shoving match with another employee, Barbara Priadka, because of a dispute over their positions in line to check out of work at the end of the day. Plaintiff maintains she was at most equally at fault for the physical altercation; nevertheless, she was terminated and Priadka was not. Plaintiff is black and Priadka is white. Plaintiff further alleges that the investigation of the incident was flawed because other white employees sided with Priadka. In addition to the direct comparison with Priadka, Plaintiff lists four other whites who were either not fired or fired and then rehired, despite behavior including sleeping on the job because of drug use, sexual harassment, and theft of narcotics.
Plaintiff also alleges that she repeatedly complained to superiors of racial discrimination at the hospital, though the only complaint for which she provides a date is a complaint in mid-March 2009 to the Director of Human Resources, regarding "the degrading and discriminatory manner in which she was treated by the Manager of Housekeeping who needlessly and unjustifiably yelled at and berated her to the point she felt she was going to have a nervous breakdown." Plaintiff's complaint does not list the actual instances of discrimination (other than the story surrounding her termination and the comparators who were not fired); it merely states that she complained of such discrimination.
Plaintiff's complaint consists of three counts: discriminatory discharge, racially hostile work environment, and retaliation. After the case was reassigned from Judge Yohn to the undersigned, Defendant moved to dismiss all counts on August 22, 2013.
As an initial matter, the Court declines to dismiss on the basis of Plaintiff's failure to file her individual complaint within the time frame set by Judge Kelly's order severing the cases. Dismissal is a "drastic" sanction analyzed in the light of the following factors: (1) the party's responsibility; (2) prejudice; (3) any history of dilatoriness; (4) willfulness or bad faith; (5) the effectiveness of alternative sanctions; and (6) the merit of the claim. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984). Here, though Plaintiff herself seems to have had trouble getting money together, the surprise need for the funds is in a sense the result of her counsel's ultimately mistaken decision to file the three cases together. The extra few weeks could hardly have caused any substantive prejudice. The Court is not convinced there is an egregious history of delay in this matter, though the late filing becomes an additional data point for any future considerations of delay, and that reminder in itself suffices as an alternative sanction under the circumstances. There is no indication of bad faith, and lack of merit is no reason to dismiss-as discussed below, upon consideration of the substance of the motion, the Court will permit two of the three counts to stand and the other to be amended.
The Court can also dispense with Defendant's request that pattern and practice allegations be stricken from the complaint. Although these allegations (along with a variety of mistaken phrasing in the complaint) are clearly holdovers from the joint three-plaintiff complaint that was not thoroughly revised for Plaintiff's separate suit, the pattern and practice aspects are not the basis of any count of the complaint, so there is no need to address them on the motion to dismiss.
Count I: Discriminatory Discharge
Plaintiff asserts a claim for discriminatory discharge under both Title VII and §1981. As will be discussed at greater length in the next section, Plaintiff's discharge is a discrete (allegedly discriminatory) act that occurred less than three hundred days before Plaintiff filed her EEOC charge. Count I, therefore, does not have time period problems. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (distinguishing between discrete discriminatory acts and hostile environment claims, and further noting that for a discrete act within the time period, the statute does not "bar an employee from using... prior acts as background evidence in support of a timely claim").
A prima facie case of discriminatory discharge requires a plaintiff to show: "(1) she is a member of a protected class; (2) she satisfactorily performed the duties required by her position; (3) she 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.Appx. 258, 259 (3d Cir. 2006). Here, Plaintiff is black, she was terminated, and she alleges she had an excellent history as an employee of Defendant for nineteen years.
In considering the fourth element, "comparator employees must be similarly situated in all relevant respects, " the determination of which "takes into account factors such as the employees' job responsibilities, the supervisors and decision-makers, and the nature of the misconduct engaged in." Wilcher v. Postmaster Gen., 441 F.Appx. 879, 882 (3d Cir. 2011), cert. denied, 132 S.Ct. 1645 (U.S. 2012). Comparators who committed offenses that were different but of "comparable seriousness" may satisfy the plaintiff's burden. Opsatnik v. Norfolk S. Corp., 335 F.Appx. 220, 223 (3d Cir. 2009) (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006)). Here, although Plaintiff has not alleged every relevant detail about the comparators she lists, the Court finds the allegations sufficient at this stage. Ms. Priadka, the other employee in the shoving match, may well satisfy the standard even taken alone. As alleged, her conduct was virtually identical (if not worse, for Plaintiff alleges Priadka instigated the conflict), and judging by their shared end-of-shift check-out procedures, the two had similar employment situations. Taking Plaintiff's allegations about the unbalanced nature of the investigation at face value adds further potentially discriminatory flavor to Plaintiff's discharge and the difference in consequences between Plaintiff and Priadka. The ...