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Ford-Greene v. NHS, Inc.

United States District Court, E.D. Pennsylvania

May 20, 2015



RONALD L. BUCKWALTER, Senior District Judge.

Currently pending before the Court is the Motion by Defendants NHS Children's Services and NHS Philadelphia ("Defendant NHS"), Lori Paster, and Rachel Maid (collectively, "Defendants") to Dismiss Plaintiff Beverly Ford-Greene ("Plaintiff")'s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to Strike Paragraphs 20(d), 27-31, 34, and 45 of the Complaint. For the following reasons, the Motion to Dismiss is granted in part and denied in part and portions of Paragraphs 20(d) and 30 are stricken from the Complaint.


Plaintiff is an African-American adult female who resides in Philadelphia County, Pennsylvania. (Compl. ¶ 3.) At all relevant times, Plaintiff was an employee and former employee with Defendant NHS. (Id. ¶ 4.) Plaintiff was hired by Defendant NHS as a Behavior Specialist/Mobile Therapist on February 26, 2003 and was terminated on February 8, 2012. (Id. ¶18.)

Defendant NHS is an entity engaged in an industry or activity affecting commerce and has over 300 employees nationwide for each working day during each of twenty or more calendar work weeks in the current or preceding year. (Id. ¶ 5.) Defendant Lori Paster is a white female who at relevant times worked for Defendant NHS as a manager and decision maker in NHS's BHRS Program, which operated out of various offices in Philadelphia, Pennsylvania. (Id. ¶ 6.) Defendant Rachel Maid is a white female who at relevant times worked for Defendant NHS as a manager and decision maker including as Plaintiff's direct supervisor in the BHRS Program. (Id. ¶ 7.)

A. Plaintiff's Complaint Filed with the Pennsylvania Human Relations Commission

On February 10, 2012, Plaintiff filed a complaint against Defendant NHS with the Pennsylvania Human Relations Commission ("PHRC"). (Compl., Ex. A.) In Count One of that complaint, for discharge and retaliation/discrimination, Plaintiff alleged that she opposed an unlawful practice as follows:

On or about November 2011 I spoke to Kenya Barrett and informed that I was being discriminated against because of my race, African American, by Lori Paster, Assistant Director and Rachael Maid, Supervisor, both race white. Ms. Barrett told me that she would look into my allegations and get back to me. The persons who harmed me, Lori Paster and Rachael Maid, knew I filed a complaint because they were informed by Human Resources. On February 8, 2012, I was [d]ischarged.

(Id. ¶¶ 8-10.) Plaintiff also stated that she believed Defendant NHS's actions were retaliatory because "after [she] filed a complaint of discrimination against Lori Paster and Rachael Maid my work was scrutinized daily. I was accused of not attending meeting [sic] and not communicating with the entire team and these accusations were not true." (Id. ¶ 11.)

In Count Two of her complaint with PHRC, Plaintiff also alleged that she was discharged on the basis of racial discrimination, and stated the following:

[NHS's] reason for the action taken was that I did not attend a meeting and I was late submitting a treatment plan. White employees were treated more favorably they did not submit their 30 day review on time and were not disciplined nor discharged. When white employees attended another supervisors [sic] group meeting they were not written up. White employees were not required to write an incident report when they were not present when a student was injured. White employees were excused from a case while I was kept on cases for longer periods of time.

(Id. ¶¶ 18-19.)

Two years later, on February 11, 2014, Plaintiff's counsel submitted an Amended Complaint with PHRC, which was stamped as received on February 19, 2014. (Defs.' Mot. Dismiss, Ex. 1.) The Amended Complaint "amends and supplements" Plaintiff's February 10, 2012 PHRC Complaint ("the 2012 Complaint") by incorporating the factual allegations of the 2012 Complaint and by amending Paragraph 3 of the 2012 Complaint to include Lori Paster and Rachel Maid as respondents. (Id.) No additional factual allegations are included in the Amended Complaint. Plaintiff's counsel signed the Amended Complaint, but Plaintiff neither signed nor verified it. (See id.) The Philadelphia District Office of the United States Equal Employment Opportunity Commission ("EEOC") issued a Notice of Charge of Discrimination to Defendants on April 17, 2014. (Id.) According to the Amended Certificate of Service, both Paster and Maid were served with copies of the Amended Complaint by first class mail on April 17, 2014. (Defs.' Mem. Supp. Mot. Dismiss, Ex. 1, Certificate of Service.)

On June 20, 2014, PHRC sent Plaintiff a letter advising her that it had investigated her complaint and determined that it should be dismissed for lack of probable cause to credit her allegations of unlawful discrimination. (Compl., Ex. B, PHRC Letter June 20, 2014.) Plaintiff subsequently received a Dismissal and Notice of Rights letter from the EEOC adopting PHRC's findings and notifying Plaintiff of her right to sue. (Compl., Ex. C, EEOC Dismissal and Notice of Rights, Aug. 7, 2014.) Plaintiff filed a Complaint in United States District Court on October 15, 2014, the contents of which are described in the following sections.

B. Allegations of Racial Discrimination in Plaintiff's District Court Complaint

Plaintiff alleges that she suffered adverse employment actions on the basis of her race including the following:

a) NHS managers including Defendants Paster and Maid "yelled undermined and otherwise belittled plaintiff in a manner that was justified only as an expression of Maid and Paster's dislike of Plaintiff's race;"
b) NHS managers including Defendants Paster and Maid "gave [P]laintiff tasks that were impossible for [P]laintiff to complete with the precise objective of making [P]laintiff fail including increasing her work load and not that of her White and African comparators with unprecedented assignments that were yet another task that [D]efendants demanded [P]laintiff perform off the clock;"
c) NHS managers including Defendants Paster and Maid "simply refused to pay or to release to [P]laintiff the wages that [P]laintiff had earned;"
d) "NHS stated it terminating [sic] [P]laintiff's employment for unspecific and false reasons including failure to meet expectations, alleged failure to attend a group supervision and a shockingly false allegation that [P]laintiff signed in to attend a meeting. As is the pattern and practice of the NHS BHRS Program management including [D]efendant Paster, these are pretextual lies to justify the blatant racism that employees of color experience at that workplace;"[1]
e) Plaintiff's supervisors, including Defendants Paster and Maid, "refused to meet, instruct, counsel or otherwise interact with [P]laintiff and only [P]laintiff and ignored [P]laintiff's requests for instruction;"
f) "These same persons routinely changed expectations and directives for [P]laintiff that were ineffectively conveyed to [P]laintiff and which made it significantly more difficult for [P]laintiff, and only [P]laintiff, unlike her White and African comparators who were not treated thus, to discharge the duties of her job or to grow and develop in that position;"
g) Plaintiff's managers denied Plaintiff "the possibility of obtaining promotions, pay raises, fair payment for hours worked and generally to thrive in her job."

(Id. ¶¶ 20(a)-(g).) Plaintiff asserts that her supervisors' actions "derailed" her career and "stained her reputation in a way that was completely unwarranted as the underlying circumstances of the career derailment were all pretext for racial discrimination." (Id. ¶ 22.) Plaintiff alleges that Defendants Paster and Maid treated NHS employees who were white and African "with distinct preference" over African-American and Latino employees. (Id. at ¶¶ 27-28.) According to Plaintiff, it was only when Defendants Paster and Maid became her supervisors that she began to "experience detrimental actions because of her race." (Id. ¶ 30.) For most of her career with Defendant NHS, Plaintiff's supervisors were African-American and she did not experience hostility, discrimination, or retaliation while under their supervision. (Id. ¶ 31.)

C. Hostile Work Environment Allegations in Plaintiff's District Court Complaint

Plaintiff alleges that as soon as she came under the supervision of Defendants Paster and Maid, she was subjected to a racially hostile work environment "of an ongoing and continuing nature." (Id. ¶ 33.) Paster and Maid "routinely did not want or need to meet with her, to not properly or even adequately inform her in a supervisory setting what was it, if anything, in her professional behavior that was not up to par, all in a frequent, severe and pervasive manner" because of their "dislike of [P]laintiff's race." (Id. ¶ 34.) The "white management at NHS, Paster and Maid, disliked [P]laintiff's race and thus treated her differently and adversely by changing the terms and conditions of the BHRS program into a racist environment." (Id. ¶ 36.) Paster and Maid treated Plaintiff "as if she did not belong there" and "they also ruined her career at NHS as a result of this discriminatory conduct." (Id. ¶ 37.) Plaintiff alleges the following events contributed to the hostile work environment she experienced:

a. Maid, who is white, was Plaintiff's direct supervisor and "yelled at and publicly humiliated [P]laintiff on several occasions including threatening her with and in fact disciplining [P]laintiff for no reason."
b. Paster, who is white, "and a decision maker who supervised Maid and in turn [P]laintiff, yelled at and publicly humiliated [P]laintiff on several occasions including placing [P]laintiff in a false light."
c. During a meeting, Paster "yelled at [P]laintiff, belittled her, undermined her and threatened her with termination if [P]laintiff did not do exactly what Paster wanted about a patient/client/consumer of NHS's in [P]laintiff's care."

(Id. ¶ 40.)

D. Allegations of Retaliation in Plaintiff's District Court Complaint

Plaintiff asserts that she engaged in protected conduct under Title VII and the PHRA when "she clearly noticed NHS and the individual defendants that she opposed their racist and adverse treatment of her and that this treatment was discrimination." (Id. ¶ 41.) Plaintiff contacted NHS Human Resources orally and in writing and stated that "Maid and Paster were discriminating against [P]laintiff because [she] was black and Maid and Paster, who are white, were giving Plaintiff bad reviews, bad clients, withholding her payments and otherwise preventing her from enjoying her job and from advancing her career at NHS." (Id. ¶ 42.) After Plaintiff complained to NHS Human Resources, "there was an actual meeting between [P]laintiff, NHS Human Resources and Maid and Paster during which the situation actually escalated" and Maid and Paster "actually treated [P]laintiff in a worse manner than the horrid way they had already been using with her, as punishment and retaliation for [P]laintiff's opposition and protected conduct." (Id. ¶ 43.) After Plaintiff "opposed NHS's and the individual [D]efendants' racism, " Plaintiff asserts that she experienced the following adverse employment actions:

a. Plaintiff complained of race-based discrimination and hostility in the work environment to NHS, Inc., management as early as June 2011.
b. After her complaint, "the race-based discrimination and the hostility that [P]laintiff had endured at NHS, Inc., actually increased including adverse employment actions in the form of unwarranted discipline, uneven application of discipline, harassment and eventual termination on the same date of her last complaint to NHS, Inc.
c. There is no other reason to explain why this increase in the hostility took place.
d. This increase in the hostility "certainly would deter anyone from complaining about the race-based discrimination and hostility in the first place and the plaintiff would not have complained had she known this."

(Id. ¶ 44.)

After Plaintiff complained of her treatment, "NHS and the individual defendants then retaliated against [P]laintiff when they forced on [P]laintiff the adverse actions, including termination, which had no legitimate basis other than deterring the [P]laintiff and others from opposing the blatant racist practices that are normal at NHS, Inc[.] and which is described in the adverse employment averred [in the Complaint] which are incorporated as if stated here at lenght [sic]." (Id. ¶ 45.) According to Plaintiff, "[t]here is no reason for defendants to created [sic] and aided and abetted in the creation of all this adverse action against plaintiff other than her engagement in protected conduct on or about June 2010 which was a complaint of discrimination based on race...." (Id. ¶ 46.) Plaintiff asserts that she was fired on February 8, 2012, because of "her engagement in the original opposition of June through November, 2011 and the further opposition of January, 2011 when [P]laintiff met with [D]efendant Maid on several occasions and on each of those occasions orally informed Maid that the actions, treatment and assignments that Maid was giving [her] were racist and discriminatory against [her] as well as unprecedented in [P]laintiff's employment at NHS." (Id. ¶ 47.) NHS terminated Plaintiff for what it calls "failure to meet expectations." (Id. ¶ 48.)

E. Alleged Violations of Wage Laws in Plaintiff's District Court Complaint

Plaintiff, in her position as a Behavior Specialist, worked as an hourly full-time employee at NHS in excess of 40 hours per week. (Id. ¶ 51.) Plaintiff documented her work hours for payroll and internal compliance through a document called a "voucher." (Id. ¶ 52.) A voucher was used to document the hours of service that employees delivered to the specific client in accordance with the number of hours NHS authorized for each client. (Id.) All "on the clock" time for which employees were paid stemmed from these authorized vouchers. (Id. ¶ 53.) The signed vouchers were sent to the City of Philadelphia for payment to NHS for service delivered, and then to the NHS payment system which in turn issued a direct deposit check that would become an employee's paycheck. (Id. ¶ 54.) NHS "often times prevented [P]laintiff from receiving her paycheck after she had performed services that were or should have been documented in a voucher." (Id. ¶ 55.) NHS required Plaintiff to work, but not document the work on vouchers, "so that she was effectively working off the clock." (Id. ¶ 56.) NHS sometimes withheld either blank or already signed vouchers, or both, from Plaintiff and would "threaten [P]laintiff to not release these vouchers to her (or to payroll) unless [she] performed additional off-the-clock work for which she was also not paid." (Id. ¶ 57.) NHS did not discipline "voucher" employees for "for working off the clock' as they attended, for example trainings and supervisions that NHS required their attendance to but did not provide vouchers' or any other form of on the clock' payment." (Id. ¶ 58.) Plaintiff alleges the following examples of "off the clock" work:

a. Answering phone calls and e-mails
b. Traveling to remote locations to provide services
c. Formatting, drafting and otherwise writing notes, progress reports, treatment plans and other documents ...

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