United States District Court, W.D. Pennsylvania
BETTY L. HIBBARD, Plaintiff,
PENN-TRAFFORD SCHOOL DISTRICT, Defendant.
JOY FLOWERS CONTI, Chief District Judge.
Pending before the court is a motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), (ECF No. 8), and brief in support, (ECF No. 9), filed by defendant Penn-Trafford School District ("defendant" or the "District"). This case concerns federal and Pennsylvania employment discrimination claims brought by plaintiff Betty L. Hibbard ("plaintiff"), a former school teacher within the District. Hibbard alleges defendant discriminated against her and compelled her resignation because of her age, disability, and gender, and in violation of her federal constitutional rights. Having been fully briefed, defendant's motion to dismiss is now ripe for disposition.
I. Procedural History
On May 3, 2013, plaintiff filed a four-count complaint against defendant alleging the District: (1) discriminated against her based upon her age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; (2) discriminated against her based upon her disability, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; (3) discriminated against her based upon her gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and (4) violated her civil rights under 42 U.S.C. § 1983, based upon violations of her Fourteenth Amendment rights. (ECF No. 2 at 8-12.) Plaintiff's complaint alleges violations of the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. § 955(a), consisting of age, disability, and sex discrimination claims, and claims of aiding and abetting age, disability, and sex discrimination. (Id.) On July 29, 2013, defendant filed the instant motion to dismiss plaintiff's complaint in its entirety for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 8.) On August 6, 2013, plaintiff filed a response in opposition to defendant's motion to dismiss. (ECF No. 12.) On August 13, 2013, plaintiff filed a motion to deny defendant's motion to dismiss. (ECF No. 13.) The court will consider plaintiff's motion as a supplement to her response in opposition to defendant's motion to dismiss. On September 19, 2013, plaintiff filed an additional response to defendant's motion to dismiss. (ECF No. 17.) The court will consider the additional response as a second supplement to plaintiff's response in opposition to defendant's motion to dismiss. Upon consideration of the submissions of the parties, the court will grant defendant's motion to dismiss plaintiff's complaint in its entirety for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6).
II. Allegations Set Forth in the Complaint
Plaintiff is a resident of Crabtree, Pennsylvania, a citizen of the United States, and a former teacher within the District. (ECF No. 2 at 1.) Defendant is the Penn-Trafford School District,  located in Harrison City, Pennsylvania. (Id.) Prior to October 2010, plaintiff took "sabbatical leave" from her employment within the District, during which time director of human resources for the District, Ramona Pope ("Pope"), "was her only designated contact." ( Id. at 3.) On or about July 21, 2010, plaintiff contacted Pope via telephone to send "official notice of her physician's clearance" and to apprise Pope about her intent to return to her teaching position within the District prior to the start of the 2010-2011 school year. (Id.) On or about August 2, 2012, the Penn-Trafford Board of School Directors (the "school board") "approved [plaintiff's] return to work" for the 2010-2011 academic year, but "added an addendum, " conditioning her return upon the approval of a District-approved physician. (Id.) Plaintiff learned about the school board's approval of her return one week later, but she "did not know of [the] addendum" at that time. (Id.)
Plaintiff telephoned Pope to "confirm" her return, but Pope was unavailable. (Id.) Plaintiff asked to speak with the District Superintendent, Dr. Deborah Kolonay ("Kolonay"), who confirmed the school board's approval of her return, but apprised plaintiff about the "addendum." (Id.) Kolonay indicated Pope would return plaintiff's telephone call the following Monday, but after the conversation, a "great delay began, " and, with one week remaining before the beginning of the academic year, plaintiff remained uninformed with respect to the status of her return to employment within the District. ( Id. at 4.) Plaintiff "learned [Pope] was expected [to be] back at the office momentarily." (Id.) Plaintiff "knew the person answering the phone trying to help her reach [Pope], " and she "did not want to miss [Pope] on the only day she was available." (Id.)
"A few days later, " plaintiff received a "certified letter, " dated August 24, 2010,  from the District's counsel, who directed her to "cease and desist from harassing [Pope]." (Id.) Plaintiff disputes defendant's harassment accusation on grounds that the "one-day [sic] of repeated calls was August 16, 2010" and that she was speaking "directly to a secretary who was advising her that she was expecting Ms. Pope to be in the office momentarily." (Id.) Plaintiff learned Pope "introduced [plaintiff's] long-term substitute on the first day to the staff." (Id.)
Plaintiff received two additional "certified letters"-one from the "new human resource[s] director, " and one from the "new principal"-requiring that she "go over a 2006 now satisfactory improvement plan one day before she returned." (Id.) Plaintiff's union representative, Shaun Rinier, advised plaintiff "not to sign" the plan after "declar[ing] the once again revised" performance improvement plan "undoable' under any circumstances." (Id.) Plaintiff "was not permitted to return" to work until after her students returned from a field trip but "before open house and the next board meeting, " during which time, plaintiff asserts, she "could have been [at the school] getting ready" for the academic year. (Id.)
On or about September 24, 2010, plaintiff returned to her position as a teacher within the District, but "the revised improvement plan now included directives [that] she was to do on top of an old severe elongated end of year 2006 Improvement Plan, satisfactory at the end of 2007 restored for her return." (Id.) The improvement plan included "unrelated directives regarding return to school, [and] things done on the in-service days she was denied, " which, she asserts, interfered with her attempts to complete the "many beginning of the year things yet to be done" in the six days preceding her return to teaching. (Id.) Swartz "moved [plaintiff] to another classroom, prior to her return and intact until then, and her resources and materials were scattered." (Id.) During this time, plaintiff alleges Swartz "created and instrumented many distractions, " including "interject[ing] sarcasm, disdain, and interruptions all through the week." ( Id. at 5.)
During "the first three days" of her return to teaching within the District, plaintiff's "long term substitute" was allowed to finish teaching a six-week science unit, after which plaintiff "began teaching" by "introduc[ing] social studies texts and lessons for the next six weeks during her last ever three teaching days." (Id.) Swartz informed plaintiff that she was to prepare an "open house presentation" for the students' parents in her classroom. (Id.) Swartz, however, "transferred her to the library" against the advice of her union representative. ( Id. at 6.)
At the end of the day on October 1, 2010, Swartz "unexpectedly appeared in the classroom, " where he "smilingly invited [plaintiff] to his office to go over the [since-completed] open house." (Id.) During the discussion, Swartz "reveal[ed] his desire, intent, and plan" to terminate plaintiff, after which she was unable to "advise [her] students, colleagues, and parents [because] communications already were severed... with a letter [Kolonay] advised the [D]istrict's [a]ttorney to send her." (Id.) According to plaintiff, the timing of the situation left her "no recourse except to resign" because Swartz stated plaintiff "would probably be asked to appear before a board of directors meeting early the next week." (Id.)
Plaintiff "asked for help" from her union representative, "but he felt there was no more he could do, " and she "wanted to spare him" and avoid involving "him [and] the staff [in] her personal humiliation" because "she thought [Swartz] would use that against them." ( Id. at 7.) Plaintiff's union representative "told her earlier" that "he had filed a grievance for her earlier in case she needed it, " but later the union informed her that "he did not file any grievance for her." (Id.)
Plaintiff travelled to the Hunker, Pennsylvania office of the Pennsylvania State Education Association ("PSEA"), where she sought assistance from Uniserv Representative, Alisa Murray, who referred plaintiff to PSEA attorney, Sarah Wines ("Wines"). (Id.) Wines "helped [plaintiff] write a letter to rescind the brief resignation she was asked to submit" during her October 1, 2010 meeting with Swartz, and Wines suggested she "might enlist" the Pennsylvania Human Relations Commission ("PHRC") and, "indirectly, " the United States Equal Employment Opportunity Commission ("EEOC") (Id.) PHRC Intake Specialist and Investigator, Qwendolyn Ormes, handled plaintiff's case and "assured [plaintiff] she would try to mediate a solution and resolution to the filed complaint satisfying both parties." (Id.) The PHRC, however, closed plaintiff's case after one hundred and eighty days "[d]ue to the delayed response of the [D]istrict to her [PHRC and EEOC] complaint." ( Id. at 8.) Plaintiff then filed the instant action. (Id.)
III. Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz , 1 F.3d 176, 183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a Rule 12(b)(6) motion to dismiss, the court accepts as true all well-plead factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins , 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). A "formulaic recitation of the elements of a cause of action will not do." Id . (citing Papasan v. Allain , 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level" and "sufficient to state a claim for relief that is plausible on its face." Id . "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." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Twombly , 550 U.S. at 556).
The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Id. (quoting Twombly , 550 U.S. at 556) (internal citations and quotations omitted).
Two working principles underlie Twombly. Iqbal , 556 U.S. at 678-79. First, with respect to mere conclusory statements, a court need not accept as true all the allegations contained in a complaint. Id . "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . at 678 (citing Twombly , 550 U.S. at 555.) Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Id . at 679. "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id . (citing Iqbal v. Hasty , 490 F.3d 143, 157-58 (2d Cir. 2007)). "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id . (quoting FED. R. CIV. P. 8(a)(2)).
A court considering a Rule 12(b)(6) motion to dismiss may begin by identifying allegations that are not entitled to the assumption of truth because they are mere conclusions. Id . "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity, then determine whether they plausibly gives rise to an entitlement to relief." Id.
While pro se plaintiffs are not held to as high a standard as litigants represented by counsel, a pro se plaintiff must still plead the essential elements of his or her claim and is not excused from conforming to the standard rules of civil procedure. McNeil v. United States , 508 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel...."); Haines v. Kerner , 404 U.S. 519, 520 (1972).
The court may grant a plaintiff leave to amend a complaint under Federal Rule of Civil Procedure 15, which provides: "The court should freely give leave [to amend] when justice so requires." FED. R. CIV. P. 15. Rule 15, however, "does not permit amendment when it would be futile. Futility "means that the complaint, as amended, would fail to state a claim upon which relief could be granted.'" Kenny v. United States, No. 10-4432 , 2012 WL 2945683, at *4 (3d Cir. July 19, 2012) (citing Burtch v. Millberg Factors, Inc. , 662 F.3d 212, 231 (3d Cir. 2011)). "The standard for deciding whether claims are futile for the purpose of granting leave to amend a complaint is the same as a motion to dismiss." Markert v. PNC Financial Servs. Group, Inc. , 828 F.Supp.2d 765, 771 (E.D. Pa. 2011). "[I]f the court determines that plaintiff has had multiple opportunities to state a claim but has failed to do so, leave to amend may be denied." See 6 CHARLES A. WRIGHT, ARTHUS R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1487 (2d ed. 2010).
A. ADEA and PHRA age discrimination claims
Plaintiff alleges defendants' conduct "constitutes unlawful age discrimination" pursuant to the ADEA and PHRA. (ECF No. 2 at 8.) The ADEA provides, in pertinent part:
It shall be unlawful for an employer... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.
29 U.S.C. § 623(a)(1). Employment discrimination claims filed pursuant the ADEA are analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), and expounded upon in Reeves v. Sanderson Plumbing Prods. , 530 U.S. 133 (2000). Smith v. City of Allentown , 589 F.3d 684, 689-92 (3d Cir. 2009). Pursuant to this framework, plaintiff bears the initial burden of establishing a prima facie case of age discrimination, which requires a showing that: (1) plaintiff was forty years of age or older at the time in question; (2) defendant took an adverse employment action against her; (3) plaintiff was otherwise qualified for her position; and (4) the adverse employment action occurred under circumstances which "raise an inference" of unlawful age discrimination. Id . (citing McDonnell Douglas , 411 U.S. at 802). The fourth element generally requires plaintiff to demonstrate that defendant ultimately replaced her with another employee who was "sufficiently younger to support an inference of discriminatory animus." Id.
Plaintiff enjoyed similar statutory protections against age discrimination pursuant to the PHRA, which declares it an "unlawful discriminatory practice"
[f]or any employer because of... [the] age ... of any individual... to bar or to discharge from employment such individual... or to otherwise discriminate against such individual... with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract, if the individual... is the best able and most competent to perform the services required.
43 PA. CONS. STAT. § 955(a) (emphasis added). Although the PHRA is a statute of independent force under Pennsylvania law, it has generally been construed as coextensive with its federal counterparts, which include the ADEA. Kelly v. Drexel Univ. , 94 F.3d 102, 105 (3d Cir. 1996) (citing Chmill v. City of Pittsburgh , 412 A.2d 860, 871 (Pa. 1980) (recognizing that "the [PHRA] should be construed in light of principles of fair employment law which have emerged relative to the federal [statutes]'")). For this reason, in the absence of contrary authority from Pennsylvania courts, the PHRA is construed in the same manner as its corresponding federal antidiscrimination provisions, unless the relevant statutory language indicates a different construction is warranted. Fogleman v. Mercy Hosp., Inc. , 283 F.3d 561, 567 (3d Cir. 2002).
Individuals may not be held liable under the ADEA. Hill v. Borough of Kutztown , 455 F.3d 225, 246 n.29 (3d Cir. 2006); Kachmar v. SunGard Data Sys., Inc. , 109 F.3d 173, 183-84 (3d Cir. 1997). The PHRA, however, declares it an "unlawful discriminatory practice" for "any person" to "aid, abet, incite, compel or coerce" the commission of an act proscribed thereunder. 43 PA. CONS. STAT. § 955(e). This provision is construed to impose individual liability on supervisors who aid and abet unlawful employment discrimination. Dici v. Pennsylvania , 91 F.3d 542, 552-53 (3d Cir. 1996).
Plaintiff fails to allege sufficient facts for this court to infer that it is plausible she can establish a prima facie case of age discrimination under the ADEA and PHRA. For this reason, plaintiff's ADEA and PHRA age discrimination claims must be dismissed for failure to state a claim upon which relief can be granted. Each requirement for a prima facie case of age discrimination will be addressed in turn.
1. Plaintiff was forty years of age or older at the time in question
With respect to the first requirement for a prima facie showing of age discrimination, the ADEA provides that its prohibitions are "limited to individuals who are at least 40 years of age." 29 U.S.C. § 631(a). Because plaintiff was sixty-four years of age at the time of her resignation from the District on October 15, 2010, she was entitled to statutory protection under the ADEA and PHRA during the period of time relevant to this case. (ECF No. 2 at 8); City of Allentown , 589 F.3d at 689-90.
2. Defendant took an adverse employment action against plaintiff
With respect to the second requirement for a prima facie showing of age discrimination, plaintiff must allege facts which raise a plausible inference that defendant took an "adverse employment action" against her. City of Allentown , 589 F.3d at 689-92. An adverse employment action, sufficient to support a prima facie case, must be "a significant change in employment status, such as hiring, firing, failing to promote, reassignment, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998). Such an action "in most cases inflicts direct economic harm and requires an official act taken by a supervisor within the company who has the power to make economic decisions affecting employees under his or her control." Id . at 762. The action must be objectively tangible and material, "as opposed to conduct that the employee generally finds objectionable." Nelson v. Upsala Coll. , 51 F.3d 383, 387-88 (3d Cir. 1995).
Plaintiff alleges defendant took an adverse employment action against her because: (a) defendant placed her on a performance improvement plan, or "PIP"; (b) defendant constructively discharged her; (c) defendant threatened her with termination; and (d) defendant refused to rescind her resignation. Each allegation will be addressed in turn.
a. Plaintiff's placement on a performance improvement plan
The action that had the "most potential" to constitute an adverse employment action in the instant case was plaintiff's placement on a PIP. Reynolds v. Dep't of Army , 439 F.Appx. 150, 153 (3d Cir. 2011). Plaintiff alleges that, upon her return to employment, defendant mandated that she adhere to a "revised improvement plan, " which plaintiff's union representative declared "undoable' under any circumstances." (ECF No. 2 at 4.) Plaintiff alleges that the PIP included "unrelated directives regarding return to school, [and] things done on the in-service days she was denied, " which, she asserts, interfered with her attempts to complete the "many beginning of the year things yet to be done." (Id.)
An employer's placement of an employee on a PIP, standing alone, does not constitute an adverse employment action, absent "accompanying changes to pay, benefits, or employment status." Reynolds , 439 F.Appx. at 153; Haynes v. Level 3 Commc'ns, L.L.C. , 456 F.3d 1215, 1224 (10th Cir. 2006); Givens v. Cingular Wireless , 396 F.3d 998, 998 (8th Cir. 2005); Taylor v. Small , 350 F.3d 1286, 1293 (D.C. Cir. 2003); Agnew v. BASF Corp. , 286 F.3d 307, 310 (6th Cir. 2002). In Reynolds, the employer placed the employee on a PIP that gave the employee ninety days to bring his performance to an "acceptable level" or "face possible reassignment, demotion, or termination." Reynolds , 439 F.Appx. at 151. After receiving notice of the PIP, the employee voluntarily retired and ...