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Kamel v. Pasteur

United States District Court, Middle District of Pennsylvania

March 4, 2015

MEDHAT KAMEL, Plaintiff,



Presently before the Court is Defendant Sanofi Pasteur's partial Motion to Dismiss (Doc. 20) Plaintiff Medhat Kamel's Amended Complaint (Doc. 19) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff alleges the following claims under Title VII of the Civil Rights Act of 1964: national origin discrimination (Count I), national origin discrimination-hostile work environment (Count II), religious discrimination (Count III), religious discrimination-hostile work environment (Count IV) and retaliation (Count V). He also alleges discrimination on the basis of national origin (Count VI) and religion (Count VII), as well as retaliation (Count VIII), in violation of the Pennsylvania Human Relations Act. Defendant moves to dismiss Counts I, II and VI (all national origin-related claims) and strike paragraphs 35-53 and 72-79 of Plaintiff's amended complaint because Plaintiff failed to exhaust administrative remedies and to timely assert some of these claims. Because Plaintiff's national origin discrimination claims could reasonably have been expected to grow out of the administrative investigation of his religious discrimination claims, and because events that took place outside of the statute of limitations were part of a continuous violation, Defendant's Motion to Dismiss (Doc. 20) will be denied. Because motions to strike are generally disfavored and Defendant has not sufficiently shown the potential for prejudice or confusion, the motion to strike will be denied.

I. Background

A. Factual Background

1. Discrimination and Hostile Work Environment

This action arises out of events that occurred while Plaintiff Medhat Kamel was employed by Defendant Sanofi Pasteur. The relevant facts, as stated in the Amended Complaint (Doc. 19), are as follows:

Plaintiff Kamel is a practicing Muslim. (Id., ¶ 2.) His national origin is Egyptian. (Id., ¶ 3.) Defendant is a company that employed Plaintiff in Swiftwater, Pennsylvania. (Id., ¶¶ 4-5.) Defendant is governed by Title VII of the Civil Rights Act, as it engages in an industry affecting interstate commerce and maintained the requisite number of employees. (Id., ¶ 6.) In or around May 2009, Defendant hired Plaintiff as a temporary contractor at its Swiftwater facility. (Id., ¶ 33.) On or about April 3, 2010, Defendant hired Plaintiff as a Third- Shift Filling and Packing Technician II. (Id., ¶ 34.) Plaintiff alleges that Defendant's agents, servants, and employees, acting within their job responsibilities, engaged in the pattern and practice of discriminatory and retaliatory treatment against Plaintiff. (Id., ¶¶ 7-8.)

In 2011, Plaintiff's coworker Regis Flaherty drew a camel with Plaintiff's name on it in the break room. (Id., ¶ 35.) The picture was visible to anyone who entered the room. (Id., ¶¶ 35-6.) Plaintiff complained about the drawing to Dan Kimmel, Deputy Director of Human Resources, but Mr. Flaherty was not disciplined. (Id., ¶¶ 37-8.) Mr. Flaherty also drew pictures of the Egyptian flag next to the Israeli flag. (Id., ¶ 39.) Mr. Flaherty taunted Plaintiff, and asked him if the images bothered him. (Id., ¶ 40.) Plaintiff again complained to Dan Kimmel, and Mr. Flaherty was not disciplined. (Id., ¶¶ 40-41.)

Plaintiff alleges that in or around Fall 2012, his coworker Alex Zabosky asked Plaintiff if he studied chemistry, physics and math so that he could "blow up" the United States one day. (Id., ¶ 43.) Plaintiff reported Mr. Zabosky to his shift manager, Pam Johnson. (Id., ¶ 44.) Plaintiff believes that Defendant did not investigate his complaint, and did not discipline Mr. Zabrosky for his remarks. (Id., ¶¶ 45-46.) Defendant asserts that this did not occur in or around Fall 2012, because Ms. Johnson ended her employment at the company in 2010, and attached her Termination Data form to a Declaration submitted with their Motion to Dismiss. (Doc. 23, Ex. H.)

Around the end of 2012 and the beginning of 2013, Plaintiff's coworker Mr. Zabosky told him that only stupid people do not believe in or accept Jesus as God. (Id., ¶ 48.) Mr. Zabosky knew that Plaintiff was a practicing Muslim. (Id., ¶ 49.) Plaintiff reported this incident to his supervisor, Ms. Johnson, but Mr. Zabosky was not disciplined. (Id., ¶¶ 50-51.) Rather, the company transferred Mr. Zabosky to First Shift from Third Shift, which was considered a reward. (Id., ¶¶ 52-53.)

Throughout the end of 2012 and the beginning of 2013, Plaintiff's coworkers referred to him as a "terrorist" and told him that he should return to Egypt. (Id., ¶ 47.)

After Plaintiff began working at Sanofi Pasteur, he informed his coworkers and his managers, Paul Mamzic and Nicole Bevacqua, that he did not eat pork for religious reasons. (Id., ¶¶ 54-55.) At various times throughout 2012, Mr. Mamzic told Plaintiff he would put pork on all food ordered by Sanofi Pasteur for its employees. (Id., ¶ 56.) One time, Ms. Bevacqua brought food with pork on it to an office meeting, and told Plaintiff to eat it. (Id., ¶ 57.) Plaintiff's coworkers repeatedly told him he was "crazy" for not eating pork, and that he did not know what he was missing. (Id., ¶¶ 59-60.)

In June or July of 2012, Plaintiff requested to take off the first day of Ramadan for religious observance. (Id., ¶ 61.) From 2009 through 2011, Defendant had allowed this, however, in 2012, Ms. Bevacqua refused to change the schedule. (Id., ¶¶ 62-64.)

In or around mid-January 2013, Plaintiff's coworker Julie Bershore told other employees that Plaintiff's home country, Egypt, and his religion, Muslim, allowed him to practice polygamy. (Id., ¶ 65.) When Plaintiff attempted to correct her by telling her that Muslims and Egyptians do not practice polygamy, Ms. Bershore laughed and continued to repeat this to Plaintiff's coworkers. (Id., ¶¶ 66-67.)

In or around February 2013, another coworker referred to Plaintiff's religious beliefs and practices as "crazy". (Id., ¶ 70.) In April 2013, after a terrorist attack in Boston, two of Plaintiff's American coworkers, Edward Little and Thomas Nye, posted pictures and articles on their Facebook pages that were offensive to Plaintiff. (Id., ¶ 72.) On April 19, each posted: "The Boston Bombers were not: Right Wingers, Tea Partiers, Republicans, NRA ‘Gun Nuts, ' Militia Men. They were Muslims! All Muslims are not terrorists. But most terrorists are Muslims." (Id., ¶ 73.) On or around April 19, 2013, Mr. Nye wrote a series of posts on Facebook that Plaintiff considered offensive and threatening, including:

All future visitors will be thoroughly checked and limited to 90 days unless given a special permit!!!! No one from a terrorist nation will be allowed in. If you don't like it there, change it yourself and don't hide here. Asylum would never be available to anyone. We don't need any more cab drivers or 7-11 cashiers. No foreign ‘students' over the age of 21. The older ones are the bombers. . . . (Id., ¶ 74.)

Plaintiff reported these comments to Defendant's Human Resources personnel, who told Plaintiff they could not do anything as they had no control over employees' social media posts. (Id., ¶¶ 75, 78-79.) Plaintiff left two (2) voicemails about his coworkers' Facebook posts with Jeanette Fontanes-Quiles, who worked in Employee Relations, Human Resources at Sanofi Pasteur. (Id., ¶ 76.) Ms. Fontanes-Quiles did not return Plaintiff's calls. (Id., ¶ 77.)

2. Retaliation

On or about January 18, 2013, Plaintiff filed a written Complaint of Discrimination alleging religious discrimination against Defendant with the Pennsylvania Human Relations Commission ("PHRC"). (Id., ¶ 68; Ex. A .) This was assigned a case number, and also ...

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