United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge.
before the Court is a Motion for Partial Dismissal filed by
Defendant Christopher Kovalchick (Doc. 25), a Motion to
Dismiss filed by Defendant William Smith (Doc. 33), and a
Motion for Partial Judgment on the Pleadings filed by
Defendants Motorworld Automotive Group, Inc. t/d/b/a
Motorworld (“Motorworld”), Jeff Evans, Allan
Crawford, Michael Muchnik, and Scott Ashley (collectively,
the “Motorworld Defendants”) (Doc. 38). For the
reasons that follow, Defendant Kovalchick's Motion will
be granted, Defendant Smith's Motion will be granted in
part and denied in part, and the Motorworld Defendants'
Motion will be granted in part and denied in part.
well-pleaded facts as set forth in Plaintiff's Complaint
(Doc. 1) are as follows:
Deivis Suero is a Pennsylvania resident who was formerly
employed by Defendant Motorworld. (Compl. ¶¶ 2,
18.) Plaintiff, who is “Hispanic/Latino, ” began
working for Motorworld on or about July 28, 2014.
(Id. ¶¶ 17-18.) On or about August 1,
2014, Plaintiff had just sold two cars when Defendants Jeff
Evans, Allan Crawford, and Michael Muchnik, all of whom were
Plaintiff's co-workers and are Caucasian, told Plaintiff
to not sell any more cars or there would be consequences.
(Id. ¶¶ 4, 21.) Later that day, Plaintiff
went to Defendant William “Bill” Smith, a
manager, and told him what had happened. (Id. ¶
23.) Defendant Smith did not take any action in response to
Plaintiff's complaint. (Id.)
about August 5, 2014, Plaintiff sold a vehicle to a customer
named Wilma Barrata. (Id. ¶ 24.) While speaking
with Ms. Barrata, Defendant Crawford came over to Plaintiff
and said “That's the last car you will ever
sell.” (Id. ¶ 25.) Plaintiff was then
called into the manager's office and accused of stealing
customers from other employees. (Id. ¶ 26.)
about August 15, 2014, Plaintiff again complained to
Defendant Smith about how he was being treated by some of his
co-workers. (Id. ¶ 28.) Plaintiff noted to
Smith that such treatment included being given
racially-charged nicknames, such as “Ferguson, ”
which referred to the case involving the death of an
African-American teenager named Michael Brown in Ferguson,
Missouri. (Id. ¶¶ 29-30.) Plaintiff also
noted that employees unplugged his computer, left trash on
and in his desk, and rearranged his chairs right before a
client came in. (Id. ¶ 31.) Plaintiff further
noted that his car tires had been slashed twice.
(Id. ¶ 32.) In response, Defendant Smith said
the employees involved “were just joking” and did
nothing to remedy the issues raised in Plaintiff's
complaints. (Id. ¶ 33.)
around August 20, 2014, Defendant Christopher Kovalchick
started working at Motorworld. (Id. ¶ 34.)
Kovalchick told Plaintiff to go back to his own country and
work in a factory, muted Plaintiff's phone so he did not
know potential buyers were calling him, and attempted to
steal potential buyers away from Plaintiff. (Id.
¶¶35-37.) In response, on August 23, 2014,
Plaintiff again spoke with Defendant Smith and told him what
was going on. (Id. ¶ 38.) Plaintiff expressed
his concerns regarding the work environment at Motorworld,
but no corrective action was taken. (Id. ¶ 39.)
around September 9, 2014, an employee looked into
Plaintiff's car and saw a pistol in plain sight.
(Id. ¶¶ 41-42.) Plaintiff had a carry
permit for the pistol, but forgot to put the gun away in his
glove box. (Id. ¶ 41.) The employee who saw the
pistol reported it to management. (Id. ¶ 42.)
Plaintiff was called into Defendant Scott Ashley's office
and written up for the incident. (Id. ¶ 43.)
Ashley, a manager, had a drawer full of rifle bullets, but
was never reprimanded for this conduct. (Id.
¶¶ 45, 78.)
October 2014, Plaintiff tried to buy a truck and thought he
could get a discount if he bought a vehicle from Motorworld.
(Id. ¶ 46.) Plaintiff and his wife had to
submit to a credit check in order to purchase the truck.
(Id. ¶ 47.) When the Caucasian employees found
out Plaintiff's credit score, which was poor, they told
everyone in the office and made fun of Plaintiff and his
wife. (Id. ¶ 48.)
about February 6, 2015, Plaintiff called Motorworld around
10:20 A.M. to inform management he would be running late
because his car battery had died. (Id. ¶ 50.)
Plaintiff arrived at work around 12:15 P.M. (Id.
¶ 51.) Around 3:00 P.M., Defendant Kovalchick approached
Plaintiff and said: “What, did your car get repo'd
too? Were you not able to make the payments? Did you know 97%
of cars that are repo'd belong to black and Latino people
because they don't pay for anything including food
stamps?” (Id. ¶ 52.) After Plaintiff told
Kovalchick to leave him alone, Kovalchick responded
“Get the fuck out of America and go back to your
country and you'll never see my face again.”
(Id. ¶¶ 53-54.) Later that day, Plaintiff
went to Defendant Ashley's office to tell him that
Kovalchick was insulting him. (Id. ¶ 55.)
Ashley told Plaintiff to not worry about Kovalchick and then
left the room. (Id. ¶ 56.) No remedial action
was taken in response to Plaintiff's complaint.
(Id. ¶ 57.)
around February 7, 2015, Plaintiff went to Defendant
Kovalchick's office to ask him a question for a client
named Juan Valdez. (Id. ¶ 58.) Plaintiff asked
Kovalchick if he could borrow a pen so he could write down
Kovalchick's answer, to which Kovalchick replied:
“Don't steal my pen, you immigrant. Is it true you
buy your papers illegally? You're just another illegal
immigrant. Take your family and go back to your
country.” (Id. ¶ 59.) Plaintiff left
Kovalchick's office, but had to return soon thereafter to
ask a follow up question for Mr. Valdez, at which time
Kovalchick stated: “Did this fucking guy a.k.a. Juan
Valdez buy his papers from the same place as you? All
immigrants are fucking ignorant! You're in the wrong job.
I'll tell you, you would look good carrying water buckets
on a farm. That would be the perfect job for an
immigrant.” (Id. ¶ 61.)
about February 9, 2015, Plaintiff was talking to Dustin
Locovacy about the truck he intended to buy. (Id.
¶ 62.) Defendant Kovalchick overheard the conversation
and said he was going to go “talk to the boss”
because Plaintiff “should not get the truck”
because he would just fill it up with immigrants.
(Id. ¶¶ 63-64.)
February 21, 2015, Plaintiff went to Defendant
Kovalchick's office to ask about an application that a
client had submitted online. (Id. ¶ 65.) On his
way, Plaintiff passed by Brianna Collanery, the office
secretary, and said hello. (Id. ¶ 66.)
Kovalchick came out of his office and said: “Make sure
he has his chain on. You know how animals are.”
(Id. ¶ 67.) Later that day, some employees were
watching the film “Planet of the Apes” in the
conference room. (Id. ¶ 68.) Kovalchick
remarked to Plaintiff: “Look at your family on TV, that
is never going to happen, you monkey.” (Id.
about February 27, 2015, Plaintiff went to Defendant
Kovalchick's office to ask him about a customer's
application. (Id. ¶ 70.) Kovalchick told
Plaintiff “[t]hat customer is garbage” and
“to get [the customer] the fuck out of here and to get
the fuck out of my office right away because every time you
walk in my office it gets dark.” (Id. ¶
about February 28, 2015, Defendant Kovalchick passed by
Plaintiff's office and said: “You haven't come
by my office today, what are you doing, selling drugs?”
(Id. ¶ 72.) Plaintiff told Kovalchick to leave
him alone, to which Kovalchick responded: “This is
America and you don't follow the rules, boy.”
(Id. ¶¶ 73-74.) Later that day, Plaintiff
went to Kovalchick's office to ask him a question
regarding a client's application, at which time
Kovalchick asked Plaintiff: “Do you know where I can
get crystal meth?” (Id. ¶ 75.) Plaintiff
responded “No, ” as he did not use or sell drugs.
(Id. ¶ 76.) Kovalchick told Plaintiff to
“stop talking shit and call your family, someone must
know where to get drugs from.” (Id. ¶
about March 7, 2015, Plaintiff again went to see Defendant
Ashley to complain about Defendant Kovalchick's conduct
towards him. (Id. ¶ 78.) On or about March 10,
2015, Kovalchick told the managers to fire Plaintiff.
(Id. ¶ 80.) On or about March 15, 2015,
Plaintiff texted Defendant Smith: “I don't feel
safe anymore and I'm coming to collect my things, ”
and thereafter resigned from Motorworld. (Id.
¶¶ 81-82.) Plaintiff asserts that he was subject to
a constructive discharge. (Id. ¶ 82.)
filed a charge of discrimination with the Philadelphia office
of the Equal Employment Opportunity Commission
(“EEOC”) and the Pennsylvania Human Relations
Commission (“PHRC”) on July 15, 2015.
(Id. ¶ 13; Pl.'s Br. in Opp'n Ex. A,
Doc. 30.) A right to sue letter was issued by the EEOC on
January 26, 2016.
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, for failure to state a
claim upon which relief can be granted. See Fed. R.
Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion,
the Court's role is limited to determining if a plaintiff
is entitled to offer evidence in support of her claims.
See Semerenko v. Cendant Corp., 223 F.3d 165, 173
(3d Cir. 2000). The Court does not consider whether a
plaintiff will ultimately prevail. Id. A defendant
bears the burden of establishing that a plaintiff's
complaint fails to state a claim. See Gould Elecs. v.
United States, 220 F.3d 169, 178 (3d Cir. 2000).
pleading that states a claim for relief must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
The statement required by Rule 8(a)(2) must
“‘give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Detailed factual allegations are not
required. Twombly, 550 U.S. at 555. However, mere
conclusory statements will not do; “a complaint must do
more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009). Instead, a complaint must
“show” this entitlement by alleging sufficient
facts. Id. While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664
(2009). As such, “[t]he touchstone of the pleading
standard is plausibility.” Bistrian v. Levi,
696 F.3d 352, 365 (3d Cir. 2012).
inquiry at the motion to dismiss stage is “normally
broken into three parts: (1) identifying the elements of the
claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded
components of the complaint and evaluating whether all of the
elements identified in part one of the ...