United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, District Judge.
Pending before the court is the defendant's amended motion to dismiss all counts of the plaintiff's complaint, (Doc. 10), on the grounds that plaintiff failed to plausibly plead sufficient factual matter to state claims upon which relief can be granted. Based upon the court's review of the relevant documents, the court will DENY the defendant's motion.
I. PROCEDURAL BACKGROUND
By way of relevant background, the plaintiff, Aneesha Bryant, filed the instant action, (Doc. 1), on June 2, 2014, under Title VII of the Civil Rights Act of 1964, as amended, namely, 42 U.S.C. § 2000e, et seq., the Civil Rights Act of 1870, namely, 42 U.S.C. § 1981, as well as state law, namely, the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 955. Plaintiff seeks declaratory relief under 28 U.S.C. § 2201 and § 2202. Plaintiff attached as exhibits (A & B) to her complaint a copy of her November 26, 2012 Charge of Discrimination she filed with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"), (Doc. 1, at 24-29, Ex. A), and a copy of her August 28, 2012 resignation letter to Lisa Cernera, the director of the surgery center for defendant, from her employment with defendant, (Doc. 1, at 29, Ex. B). The defendant is plaintiff's prior employer, Wilkes-Barre Hospital Company, LLC ("WBHC"), doing business as Wilkes-Barre General Hospital, located on North River Street, Wilkes-Barre, Pennsylvania.
It is alleged that this court has subject matter jurisdiction over plaintiff's federal claims based on 28 U.S.C. § 1331 and § 1343(a), and on 42 U.S.C. §2000e-2(a), and that the court can exercise jurisdiction over plaintiff's pendent state claims under 28 U.S.C. § 1367. Plaintiff states that venue is proper in this court under 28 U.S.C. § 1391 since the alleged unlawful employment practices occurred in the Middle District of Pennsylvania.
After defendant was served, it filed an original motion to dismiss the complaint on July 21, 2014, pursuant to Fed.R.Civ.P. 12(b)(6), and argued, in part, that plaintiff failed to exhaust her administrative remedies with respect to her race-based discrimination, harassment and retaliation claims under Title VII and the PHRA. Subsequently, defendant was advised by plaintiff that she received a Notice of Right to Sue from the EEOC dated July 15, 2014. Thus, defendant withdrew its original motion to dismiss. (Doc. 9). On July 22, 2014, defendant filed an amended motion to dismiss under Rule 12(b)(6), 12(f), and 12(e). (Doc. 10). On August 1, 2014, defendant filed its brief in support. (Doc. 11). Plaintiff filed her brief in opposition on August 18, 2014, with copies of unpublished decisions attached. (Doc. 13). On September 4, 2014, defendant filed its reply brief. (Doc. 16). As such, defendants' amended motion to dismiss is ripe for disposition.
On September 10, 2014, plaintiff filed a motion for the court to conduct oral argument on defendant's motion and defendant concurred in the request. (Doc. 17). The court indicated that it would take the request under advisement until it reviewed the briefs of the parties. (Doc. 18). After reviewing the briefs, the court does not find that oral argument is necessary and/or would be helpful in deciding defendant's motion. As such, the court will deny plaintiff's motion to conduct oral argument.
II. FACTUAL BACKGROUND
Plaintiff, an African-American, began her employment with defendant in April of 2008, as an operating room scheduling specialist. (Doc. 1, ¶'s 15-16). All of the other people employed by defendant at its same day surgery center where plaintiff worked were Caucasians. (Doc. 1, ¶ 20). During her employment, a Caucasian co-worker named Amy Stewart began to mock plaintiff about her pronunciations of certain words and began to pronounce certain words incorrectly around plaintiff on a regular basis through August of 2012, such as "birfday" as opposed to "birthday" and "aks" instead of "ask". (Doc. 1, ¶'s 22-25). Despite plaintiff's objections to the verbal mockery, Stewart did not stop. Plaintiff also avers that on "at least one occasion", she asked Stewart where she heard such pronunciations and Stewart responded from "the colored station" apparently referring to the Black Entertainment Television network. (Doc. 1, ¶'s 26-27). Further, on one occasion during the summer of 2012, Dr. Glen Weaver, a Caucasian physician employed by defendant, asked plaintiff "what do you eat, chicken and watermelon?" (Doc. 1, ¶ 28). Plaintiff informed Weaver that she was offended by his question and Weaver responded, "Come on, people tell Polack jokes all the time." (Doc. 1, ¶'s 29-30).
On August 16, 2012, Stewart again made the mocking comments, namely, "birfday" and "aks", at the front counter in the workplace in plaintiff's presence and plaintiff became visibly upset. Immediately thereafter, Weaver asked plaintiff "Why do you say tirfday' and aks'?" (Doc. 1, ¶'s 31-34). Plaintiff then went to Mike Padden, the director of defendant's same day surgery center, and complained about the verbal, racial harassment. Later that day, Stewart approached plaintiff and indicated that she was aware of plaintiff's complaint to Padden about her and she accused plaintiff of trying to get her fired. When plaintiff arrived at her next scheduled work day, she immediately observed that her co-workers were not speaking to her, and on one occasion, her co-workers failed to give her the schedule which was a required document to perform her job. (Doc. 1, ¶'s 36-40). Plaintiff states that the conduct of her co-workers caused her to become very uneasy and emotionally stressed. It affected her work performance and she found herself near tears. (Doc. 1, at 30, Ex. B, resignation letter of plaintiff).
On August 22, 2012, plaintiff went to Padden and complained that her co-workers were not speaking to her and refused to give her documents required to perform her job. Padden advised plaintiff that he spoke to Stewart about plaintiffs complaints and that he told Stewart that he did not know if she would lose her job. Padden also told plaintiff that "everyone seemed a little weird right now." (Doc. 1, ¶ 41 and Ex. B).
On August 24, 2012, plaintiff went to Lisa Cernera and complained to her about the verbal, racial harassment by her co-workers and about the refusal of her co-workers to speak to her and to cooperate with her so she could perform her job. Cernera advised plaintiff that she could not identify with plaintiff since she was not black and told plaintiff that her mother still referred to black people as "colored". (Doc. 1, ¶'s 42-43).
Plaintiff states that since defendant did not take any action to remedy the racial harassment and retaliation, she gave Cernera her resignation letter on August 28, 2012, stating that her last day at work would be September 7, 2012. (Doc. 1, ¶ 46-47 and Ex. B).
As indicated, plaintiff submitted a Charge of Discrimination with the EEOC and the PHRC signed on November 26, 2012, alleging discrimination, harassment, retaliation and constructive discharge due to race, color and national origin. (Doc. 1, at 24-29, Ex. A). Plaintiff received a Notice of Right to Sue from the EEOC dated July 15, 2014.
After plaintiff exhausted her administrative remedies, she filed the instant complaint. In Count I, plaintiff raises a claim of race discrimination in violation of Title VII. In Count II, plaintiff raises a claim of race discrimination under § 1981. In Count III, plaintiff raises a retaliation claim under Title VII, and in Count IV, she asserts a retaliation claim under § 1981. In Count V, plaintiff raises a claim of race discrimination under § 955(a) of the PHRA. In Count VI, plaintiff raises a claim of retaliation under § 955(d) of the PHRA. In Count VII, plaintiff raises a claim of racial harassment under Title VII, and in Count VIII (mislabeled as Count VII), plaintiff asserts a claim of racial harassment under § 1981. Finally, in Count IX, plaintiff raises a claim of racial harassment under § 955(a) of the PHRA.
As relief, plaintiff seeks a declaratory judgment that defendant engaged in discrimination in violation of state and federal law, a permanent injunction enjoining defendant from discriminating against its employees based on their race, back pay, front pay, compensatory and punitive damages, as well as costs and attorneys' fees.
III. STANDARD OF REVIEW
The defendant's motion to dismiss is brought in part pursuant to the provisions of Fed.R.Civ.P. 12(b)(6). Defendant argues that under Rule 12(b)(6), Counts I, II and V of plaintiffs complaint as well as Counts VII-IX, raising claims for racial harassment, should be dismissed for failure to state a cognizable claim. This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face, " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. 544, 127 S.Ct. at 1965. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Id. Furthermore, in order to satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief, " which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544, 127 S.Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. See Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court may not rely on other parts of the record in determining a motion to dismiss. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). However, "[d]ismissal without leave to amend is justified only on the grounds ...