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Spencer v. Comcast Corp.

United States District Court, E.D. Pennsylvania

February 17, 2017

WILBERT SPENCER, JR., on behalf of himself, individually, and all others similarly situated
v.
COMCAST CORPORATION, ET AL.

          MEMORANDUM

          R. BARCLAY SURRICK, J.

         Presently before the Court is Defendants' Motion to Dismiss Count VI of Plaintiff's Amended Complaint for failure to exhaust administrative remedies. (ECF No. 12.) For the following reasons, Defendants' Motion will be granted.

         I. BACKGROUND

         Plaintiff's Amended Complaint alleges that Plaintiff is an African-American male who worked as a telecommunications operator for Defendants' Customer Service Center. (Am. Compl. ¶ 2, ECF No. 9.) Plaintiff alleges that he was subjected to racial discrimination during the course of his employment, which ultimately led to his termination. (Id. ¶¶ 32, 43, 57.)

         A. Factual Background

         Plaintiff, Wilbert Spencer, Jr., worked for Defendants as a telecommunications operator from June 2004 until March 2015.[1] (Id. ¶¶ 2, 35.) Around the months of February and March 2015, Plaintiff received his 2015 Annual Review. (Id. ¶ 31.) Plaintiff's review stated that he needed improvement in the following areas: communication, motivation, interpersonal affect, and organizing his thoughts. (Id.) Plaintiff alleges that he also received a poor review for “cultural diversity” and for “discriminating on the basis of race.” (Id.) On March 13 and 17, 2015, Plaintiff filed an internal complaint of racial discrimination in the workplace. (Id. ¶ 32.) On March 19, managers Aileen Thompson, Dori DiDonato, and Kerry Leonard scheduled a meeting with Plaintiff to discuss his complaints of racial discrimination. (Id. ¶ 34.) Eleven days later, on March 30, Plaintiff was discharged. (Id. ¶ 35.) Defendants' stated reason for discharging Plaintiff was that he hung up the phone on a customer. (Id. ¶ 36.)

         Following Plaintiff's discharge, the senior manager of Defendants' Human Relations Department “closed out” Plaintiff from seeking further employment with Defendants. (Id. ¶ 37.) On June 10, 2015, Defendants' employees altered Plaintiff's March 17 complaint of racial discrimination. (Id. ¶ 39.) Defendants' employees altered Plaintiff's complaint by deleting the words “Discrimination” and “Retaliation, ” and substituting the words “Unfair Treatment (Not Discrimination).” (Id.) That same day, the employees entered the Ethics Point database-the system whereby Plaintiff filed his internal racial discrimination complaint-and added the sentence: “If you feel somehow punished for making this complaint, please report it immediately by making a new Comcast Listens report or emailing Report_Retaliation@comcast.com.” (Id. ¶ 40.)

         Plaintiff alleges that every employee within Defendants' upper management is Caucasian. (Id. ¶ 21.) Plaintiff also alleges that all of the managers, directors, compliance analysts, and legal team members working within Defendants' Human Relations Department are Caucasian. (Id. ¶ 23.) Plaintiff maintains that he has witnessed other Caucasian employees deliberately hang up on customers on a regular basis. (Id. ¶ 36.) Specifically, Plaintiff alleges that he has seen his supervisor, a Caucasian female, hang up on a customer. (Id.)

         B. Procedural History

         On February 1, 2016, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). (Mot. to Dismiss Ex. A., ECF No. 12.) The Charge alleges that Plaintiff was discriminated against based on his race and skin color in violation of Title VII of the Civil Rights Act. (Id.) The Charge also states that the discrimination took place on April 8, 2015-the date that Plaintiff alleges that he was discharged. (Id.) On February 12, 2016, the EEOC issued a “Notice of Charge of Discrimination” and a “Dismissal and Notice of Rights.” (Id.)

         On May 4, 2016, Plaintiff filed a Complaint with the Court of Common Pleas in Philadelphia. (ECF No. 1.) On May 25, 2016, Defendants filed a Notice of Removal to this Court. (Id.) On June 1, 2016, Defendants filed a Motion to Strike the Complaint for failure to state a short and plain statement of the claims, pursuant to Federal Rule of Civil Procedure 8. (ECF No. 7.) On June 15, 2016, Plaintiff filed an Amended Complaint (ECF No. 9), and a Response in Opposition to the Motion to Strike. (ECF No. 10.) On July 7, 2016, we dismissed as moot Defendants' Motion to Strike. (ECF No. 14.)

         Plaintiff's Amended Complaint asserts the following five claims of racial discrimination in violation of 42 U.S.C. § 1981: retaliation based on race (Count I); individual disparate treatment (Count II); systemic disparate treatment (Count III); failure-to-promote-individual disparate treatment (Count IV); and hostile work environment (Count V). Plaintiff's Amended Complaint also alleges that Defendants engaged in actions that had a systemic disparate impact upon African Americans, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) (Count VI). On July 5, 2016, Defendants filed the instant Motion to Dismiss. (Mot. to Dismiss.) Defendants seek to dismiss only Plaintiff's systemic disparate impact claim (Count VI). On July 19, 2016, Plaintiff filed a Response in Opposition to Defendants' Motion, and also requested that this Court consider his response as a Cross-Motion to Certify as a Class Action. (Pl.'s Resp., ECF No. 15.) On August 5, 2016, Defendants filed a Reply Brief in Support of their Motion. (Defs.' Reply, ECF No. 16.) That same day, Defendants filed a Brief in Opposition to Plaintiff's Cross-Motion to Certify as a Class Action. (Defs.' Br. Opp., ECF No. 17.)[2]

         II. LEGAL STANDARD

         Under Federal Rule of Civil Procedure 8(a)(2), “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.” Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is ...


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