United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
before the Court is a Motion to Dismiss filed by Defendant
William “Bill” Smith (Doc. 19). For the reasons
that follow, Defendant Smith's Motion will be granted in
part and denied in part.
facts as set forth in Plaintiff's Complaint (Doc. 1) are
Mark Rodrigues is a Pennsylvania resident who was formerly
employed by Defendant Motorworld. (Compl. ¶¶ 1-2.)
Plaintiff, who is “Italian, Portuguese, Latino, and
Caucasian, ” began working as a sales associate for
Defendant Motorworld in April 2014. (Id.
as Plaintiff began working at Motorworld, Defendant Josh
Cannon, a co-worker, asked Plaintiff: “What are you[, ]
Mexican?” (Id. ¶ 20.) Plaintiff corrected
Cannon by informing him that he was Portuguese and that his
last name ended with an “S, ” not with a
“Z.” (Id. ¶ 21.) Thereafter,
Plaintiff was referred to as “Portuguese Penis, ”
“Portuguese Prince, ” and his national origin was
treated as a joke. (Id. ¶¶ 22-23.) When
Plaintiff complained to some colleagues that he was being
treated differently and being singled out, Cannon said:
“[T]hat's because you are Mexican.”
(Id. ¶ 25.)
Joe Zakowski, another co-worker, made fun of Plaintiff's
Portuguese heritage in front of colleagues and customers on a
consistent basis. (Id. ¶ 24.) At times,
customers referred to Plaintiff as “the Portuguese
guy.” (Id. ¶ 56.)
July 2014, Plaintiff complained to Defendant Bill Smith, a
manager at Motorworld, and informed Smith about the offensive
comments directed toward him. (Id. ¶¶
26-27.) In response, Smith laughed and said that the person
making the comments was “only joking around with
you.” (Id. ¶ 28.) Smith did nothing to
stop the comments from being made and laughed at such
comments when he would hear them. (Id. ¶¶
29, 31-32.) Offensive comments about Plaintiff were made on a
regular basis. (Id. ¶ 33.)
eventually spoke with Cheryl Orvick, the HR manager, at the
beginning of May 2015. (Id. ¶ 35.) By this
time, Plaintiff had a new manager, Defendant Stuart Lebowitz.
(Id. ¶ 36.) After Plaintiff complained to HR,
Orvick went to complain to Defendant Bob King, the president
of Motorworld. (Id. ¶¶ 38-39.) A meeting
took place between Plaintiff, Lebowitz, Orvick, and King.
(Id. ¶ 40.) Prior to this meeting, Lebowitz
singled out Plaintiff and told him that he could not wear his
black casual dress shoes despite the fact that other people
wore sneakers. (Id. ¶¶ 42-43.)
at Motorworld cut the profit so that Plaintiff would sell
more cars at less profit to himself, but Lebowitz would get
his bonus because of the increase in car sales. (Id.
¶ 45.) Plaintiff was the only employee who had his
profit reduced by Lebowitz. (Id. ¶ 46.)
Additionally, when Plaintiff was late to work on one
occasion, Lebowitz singled him out for his tardiness, despite
the fact that other employees had come in late without
reprimand. (Id. ¶¶ 50-52.) Lebowitz also
singled out Plaintiff during the weekly Saturday sales
meeting by making statements about the way he dressed and his
need to work harder. (Id. ¶¶ 53-54.)
resigned on Memorial Day 2015. (Id. ¶ 57.)
Plaintiff timely filed a written charge of discrimination
with the Philadelphia office of the Equal Employment
Opportunity Commission (“EEOC”) and the
Pennsylvania Human Relations Commission (“PHRC”).
(Id. ¶ 13.) The EEOC mailed Plaintiff a Right
to Sue Letter on or about May 16, 2016. (Id. ¶
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 inquiry are
sufficiently alleged.” Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
is appropriate only if, accepting as true all the facts
alleged in the complaint, a plaintiff has not pleaded
“enough facts to state a claim to relief that is
plausible on its face, ” Twombly, 550 U.S. at
570, meaning enough factual allegations “‘to
raise a reasonable expectation that discovery will reveal
evidence of'” each necessary element. Phillips
v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678. ...