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Burnett v. Union Railroad Co.

United States District Court, W.D. Pennsylvania

June 26, 2017


          OPINION AND ORDER Re: ECF No. 9


         Plaintiff Michael J. Burnett (“Plaintiff”) initiated this action against Defendant Union Railroad Company (“Defendant”), alleging that Defendant subjected him to a hostile work environment because of his gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”).

         Presently before the Court is a Motion to Dismiss filed on behalf of Defendant. ECF No. 9. For the reasons that follow, the Motion to Dismiss will be denied.


         According to the Complaint, Plaintiff began working for Defendant in April of 2008. ECF No. 1 ¶12. Beginning in October of 2015, apparently because of a rumor that Plaintiff was gay, Plaintiff's co-workers and supervisors, the majority of which are male, began to harass Plaintiff with homophobic slurs such as “fag” and “butthole Burnett, ” “hot butt hole Burnett, ” “hot anus, ” and “hot butt fagot, ” and by asking Plaintiff whether he “was taking it up the ass” or whether he had “[taken] it up the ass lately.” Id. ¶¶ 15-20. In addition, Plaintiff's locker and at least thirty railcars were vandalized with derogatory graffiti of a similar nature. Id. ¶¶ 18, 21, 24-26.

         On January 6, 2016. after receiving telephone calls from friends and co-workers informing Plaintiff that they had seen trains with the graffiti on them, and concerned that his daughter might see them, Plaintiff reported the graffiti and harassment to his supervisor, Daniel Griffin, who told Plaintiff that he would have the graffiti removed. Id. ¶¶ 28-31. In addition, a division manager, Kevin Salmon, told Plaintiff that he would take care of the graffiti and the harassment. Although Mr. Salmon apparently spoke with Plaintiff's co-workers and told them that whoever was harassing Plaintiff would be suspended, as of January 24, 2016, the derogatory graffiti had still not been removed from the railcars and Plaintiff began to remove it himself. Id. ¶¶ 32-37. Moreover, Plaintiff continued to be harassed by both his co-workers and supervisors, which included finding a mocking form on his locker entitled, “UNION RAILROAD COMPANY HURT FEELINGS REPORT, ” which read:

We, the Union Railroad Company, take hurt feelings very seriously. If you don't have someone who can give you a hug and make things all better, please let us know, and will promptly dispatch a “hugger” to you as soon as possible, In the event we are unable to provide a “hugger”, we will notify the fire department and request that they send fire personnel to your location. If you are in need of supplemental support, upon written request, we will make every reasonable accommodation to provide you with a “blankey”, a “binkey”, and a “ba-ba” if you so desire.

Id. ¶¶ 38-41.

         On February 17, 2016, Plaintiff also told Dana Cornibe, Manager of Transportation Operations, about the harassment and graffiti. Two days later, on February 19, 2016, Plaintiff was informed that he was removed from service “pending an investigation.” Id. ¶¶ 42-43. It was not until a week later, on February 26, 2016, that Plaintiff was told he had been removed from service for a minor work rule violation, i.e., that the caboose of Plaintiff's train had been stopped past a clearance point. Id. ¶¶ 44-45. Plaintiff was offered a Last Chance Agreement, whereby he would admit to violating a work rule and waive his rights to the grievance process under the collective bargaining agreement in the event of a subsequent rule violation. Id. ¶ 46. Believing that employees who sign Last Chance Agreements are always terminated shortly thereafter and that he did not violate a rule, Plaintiff declined to sign the Last Chance Agreement and opted for a hearing and investigation into the matter. Id. ¶¶ 47-48.

         A hearing was held on March 10, 2016, before Mr. Cornibe and on March 18, 2016, Plaintiff was informed that it had been determined that he violated the rule and was immediately fired. Id. ¶¶ 49-50. Defendant, which issues demerits based on rule violations, allegedly terminated Plaintiff's employment because he had received more than 100 demerits. Plaintiff, however, contends that several co-workers who had more than 100 demerits and were not terminated. Plaintiff also contends that prior to complaining to his supervisors about the sexual harassment he had received 75 demerits for six infractions but received 60 demerits for the one minor infraction after he complained about the hostile work environment. Id. ¶¶ 55-57.

         After filing a timely Charge of Discrimination with the Equal Employment Opportunity Commission and receiving a right to sue letter, Plaintiff filed the instant two-count Complaint on January 20, 2017, bringing claims under Title VII for hostile work environment (Count I) and retaliation (Count II). ECF No. 1. On March 24, 2017, Defendant filed a Motion to Dismiss, ECF No. 9, to which Plaintiff filed a Brief in Opposition on April 13, 2017. ECF No. 13. Defendant filed a Reply Brief in support of its Motion on April 26, 2017. ECF No. 14. As such, the Motion is ripe for review.


         In assessing the sufficiency of the complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id., citing Papasan v. Allain, 478 U.S. 265, 286 (1986). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face, ” id. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).

         III. ...

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