United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
ROBERT C. MITCHELL, Magistrate Judge.
Presently before the Court is a partial motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by the Defendant, seeking to dismiss Counts II, III and IV of Plaintiff's Second Amended Complaint on the ground that he did not exhaust his administrative remedies with respect to these claims. For the reasons that follow, the motion will be denied.
Plaintiff, Louis Gilliam, brings this action pursuant to 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), alleging that Defendant, Verizon Pennsylvania, Inc. (Verizon), discriminated against him on the basis of his race (African American) and in retaliation for complaining about racial discrimination when it suspended him and later terminated him from his position as a Systems Technician on April 20, 2012 (allegedly on the basis of a criminal investigation concerning him) and when it failed to reinstate him once the criminal complaint against him was dismissed on December 11, 2013.
Plaintiff worked at Verizon from on or about May 18, 1998 until he was terminated on April 20, 2012. (Second Am. Compl. ¶ 9.) At the time of his discharge, he held the position of Systems Technician. (Second Am. Compl. ¶ 10.) He received outstanding performance reviews during the thirteen years and eleven months as an employee and was never issued a disciplinary action. (Second Am. Compl. ¶ 11.)
On March 16, 2012, United States Drug Enforcement Agency (DEA) agents entered a Verizon store searching for Plaintiff for allegedly conspiring to distribute cocaine. In order to protect Verizon's reputation, Plaintiff did not return the company vehicle to the store, but instead contacted his supervisor to inform him of his whereabouts and returned the vehicle to a Verizon garage closest to his last job site of the day. DEA agents, with the assistance of Verizon security, searched both the returned vehicle and Plaintiff's personal vehicle but found no incriminating evidence in either vehicle. (Second Am. Compl. ¶¶ 12-15.) The DEA named Plaintiff in a criminal complaint on March 19, 2012 for allegedly conspiring with others to possess with the intent to distribute five kilograms or more of cocaine. (Second Am. Compl. ¶ 16.)
Verizon conducted an investigation into the allegations against Plaintiff and he cooperated with the investigation at all times. (Second Am. Compl. ¶ 19.) On April 20, 2012, Verizon notified Plaintiff of his termination, citing three reasons for the discharge: 1) improper/unauthorized utilization of the company's motor vehicle; 2) involvement in the sale or transfer of illegal drugs; and 3) failure to cooperate with the company's investigation. (Second Am. Compl. ¶ 20.) See Pl.'s Sur-reply Br. (ECF No. 55) Ex. A.
Plaintiff alleges that he was racially profiled treated in a discriminatory fashion by Verizon's Senior Investigator, John Yock, during the investigation and that Yock's behavior when conducting interviews of African-American technicians and employees of Verizon was well-known. (Second Am. Compl. ¶¶ 21-24.) Plaintiff and his union representative complained about Yock's behavior, but no action was taken. Brennan Yarnot, Verizon's Senior Investigator, told Plaintiff that Verizon was only concerned about the allegations concerning distribution of drugs, yet Verizon then cited reasons for termination as "improper/unauthorized utilization of the Company's motor vehicle" and "failure to cooperate with the Company's investigation." (Second Am. Compl. ¶¶ 25-30.)
Verizon's labor relations counsel advised Verizon Security that Plaintiff's failure to return the vehicle at the end of his tour on March 16, 2012 was not a termination type offense and acknowledged that he had legitimate reasons for not returning it. (Second Am. Compl. ¶¶ 31-34.)
On March 11, 2013, Plaintiff filed a charge of discrimination with the EEOC. Defendant notes that he checked the box for "race" as the basis, but not retaliation. (Am. Compl. ¶ 2(e) & Ex. E.)
Plaintiff notes that the United States Attorney filed a motion to dismiss the criminal complaint, which was granted by this Court on December 11, 2013. (Second Am. Compl. ¶ 35.) His employment was not reinstated following the dismissal of the criminal complaint. (Second Am. Compl. ¶ 36.)
Plaintiff's union filed a grievance protesting his discharge, which was moved to arbitration. The arbitration hearing was held on August 7, 2014. On November 14, 2014, the arbitration panel ruled that Verizon did not have proper cause to terminate Plaintiff. His employment was reinstated and he began working for Verizon again on December 1, 2014, approximately one year after the criminal charges were dismissed. (Second Am. Compl. ¶¶ 40-43.) See ECF No. 55 Ex. B.
In the original Complaint, which was filed on October 23, 2013, Plaintiff alleged three claims of employment discrimination: Count I alleged a claim of racial discrimination relating to his termination in violation of Title VII, Count II alleged a claim of retaliation for having opposed racial comments and behavior by Mr. Yock in violation of Title VII and Count III alleged claims of discrimination under the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (PHRA). On December 23, 2013, Defendant filed a motion to dismiss (ECF No. 8). In response, on January 10, 2014, Plaintiff filed an Amended Complaint (ECF No. 14), which eliminated the PHRA claims in Count III and addressed the technical failure which led to the Complaint ...