United States District Court, E.D. Pennsylvania
WILBERT SPENCER, JR., on behalf of himself, individually, and all others similarly situated
COMCAST CORPORATION, ET AL.
BARCLAY SURRICK, J.
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.
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.)
Wilbert Spencer, Jr., worked for Defendants as a
telecommunications operator from June 2004 until March
2015. (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.)
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
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.
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
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.)
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.
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 ...