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Suero v. Motorworld Automotive Group Inc.

United States District Court, M.D. Pennsylvania

January 31, 2017

DEIVIS SUERO, Plaintiff,


          A. Richard Caputo United States District Judge.

         Presently 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.

         I. Background

         The well-pleaded facts as set forth in Plaintiff's Complaint (Doc. 1) are as follows:

         Plaintiff 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.)

         On or 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.)

         On or 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.)

         On or 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.)

         On or 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.)

         In 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.)

         On or 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.)

         On or 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.)

         On or 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.)

         On 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. ¶ 69.)

         On or 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. ¶ 71.)

         On or 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. ¶ 77.)

         On or 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.)

         Plaintiff 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.

         II. Legal Standard

         Federal 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).

         A 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).

         The 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 ...

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