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Clemena v. Philadelphia College of Osteopathic Medicine

United States District Court, E.D. Pennsylvania

August 11, 2017

GERONIMO CLEMENA Plaintiff
v.
PHILADELPHIA COLLEGE OF OSTEOPATHIC MEDICINE Defendant

          MEMORANDUM OPINION INTRODUCTION

          NITZA I. QUIÑONES ALEJANDRO, U.S.D.C.J.

         Geronimo Clemena (“Plaintiff) filed an employment discrimination complaint against his former employer, Philadelphia College of Osteopathic Medicine (“Defendant”), and asserts allegations of unlawful discrimination and hostile work environment based on, inter alia, violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); 42 U.S.C. § 1981 (“§ 1981”); the Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008, 42 U.S.C. § 12101 et seq. (“ADA”), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”). [ECF 1]. Before this Court is Defendant's motion to dismiss the complaint filed pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), for failure to state a claim upon which relief can be granted. [ECF 9]. Plaintiff has opposed the motion. [ECF 12]. The issues presented have been fully briefed and, therefore, this matter is ripe for disposition.

         For the reasons set forth herein, Defendant's motion to dismiss is granted, in part, and denied, in part.

         BACKGROUND

         When ruling on a motion to dismiss, this Court must accept as true all the factual allegations in the plaintiffs complaint, and construe the complaint in the light most favorable to the non-movant. Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). The factual allegations contained in Plaintiffs complaint are summarized as follows:

Plaintiff alleges that he is a diabetic and that his national origin is Filipino. (Compl. at ¶¶20-21). On June 25, 2014, Defendant offered Plaintiff a position as an Operating Engineer on a “‘swing shift' or irregular workdays” schedule. (Id. at ¶¶22-23). Plaintiff informed Defendant that he preferred a “1st shift work schedule . . . [working] Monday- Friday; 8:00 am - 4:00 pm with Saturdays and Sundays off, ” yet accepted Defendant's swing shift offer. (Id. at ¶¶24-26). Plaintiff alleges that he continuously informed Defendant of his shift preference, and Defendant assured Plaintiff that he could request a transfer to a first-shift work schedule if there was a first-shift job opening. (Id. at ¶¶27-28).
Plaintiff contends that in December 2014, an opening for an unspecified first-shift position became available. (Id. at ¶30). On December 15, 2014, Plaintiff requested a transfer to the first-shift position from his Chief Facilities Director, Francis H. Windel (“Windel”). (Id.). During the same conversation, Plaintiff informed Windel that he had diabetes and that his physician had advised that, as a diabetic, Plaintiff should regularly get adequate sleep to obtain daily normal glucose levels and endocrine function. (Id. at ¶¶31-34). Plaintiff explained to Windel that the swing shift prevented him from obtaining adequate sleep and, consequently, a normal glucose level. (Id. at ¶¶35-38). Windel stated he would defer the transfer decision to Plaintiffs manager, Chris Gearhart. (Id. at ¶42). On January 12, 2015, Defendant hired a Caucasian employee from the maintenance department to fill the first-shift opening. (Id. at ¶¶44-45).
On May 4, 2015, a first-shift Operating Engineer position vacancy was posted. (Id. at ¶47). On May 20, 2015, Plaintiff sent an email to the Human Resources Assistant Director, Alexis Sherman (“Sherman”) and Windel, formally requesting a transfer to this first-shift Operating Engineer vacancy. (Id. at ¶48). That same day, Windel replied by email that the “position would be offered based on seniority within the staff.” (Id. at ¶49). On June 23, 2015, Plaintiff showed the Chief Human Resources Officer, Eddie Potts (“Potts”), a letter from his doctor that indicated the “vital importance of his nocturnal sleep need, ” and requested that Potts provide Plaintiff with an ADA accommodation by transferring him to the posted first-shift Operating Engineer opening. (Id. at ¶¶50-53). Plaintiff does not allege when he was not selected for this position, or when and by whom it was filled.
On May 26, 2016, Plaintiff was found sleeping on the job. (Id. at ¶55). On June 17, 2016, Defendant terminated Plaintiff s employment. (Id. at ¶54). Plaintiff alleges that his termination was an instance of “disability discrimination.” (Id.)
On August 18, 2016, Plaintiff filed with the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission a written charge of discrimination against Defendant. (Id. at ¶15(a)). On November 2, 2016, the EEOC mailed to Plaintiff a Notice of Right to Sue. (Id. at ¶15(b)). On January 31, 2017, Plaintiff filed his complaint in this matter. [ECF

         LEGAL STANDARD

         When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court “must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court must “determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief” Id. at 211 (quoting Iqbal, 556 U.S. at 679). The complaint must do more than merely allege the plaintiffs entitlement to relief; it must “show such an entitlement with its facts.” Id. (citation and internal quotation marks omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'- ‘that the pleader is entitled to relief” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Bell Atl Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege facts sufficient to “‘nudge [his or her] claims across the line from conceivable to plausible.'” Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 570).

         DISCUSSION

         Plaintiffs complaint contains four counts. Specifically, at Counts I and II, Plaintiff avers that Defendant unlawfully discriminated against him because of his race, color, and/or national origin or, in the alternative, that Defendant's conduct toward Plaintiff constituted a hostile work environment, in violation of Title VII[1] and § 1981.[2] (Compl. at ¶¶56-59, 60-64). Consistent with these averments, this Court has liberally construed these counts as asserting Title VII and § 1981 claims of denial of transfer, wrongful termination, and hostile work environment.[3] At Count III, Plaintiff avers that Defendant unlawfully discriminated against him because of a disability and/or a perceived disability or, in the alternative, that Defendant's conduct toward Plaintiff constituted a hostile work environment, in violation of the ADA.[4] (Id. at ¶¶65-70). Again, consistent with these averments, this Court has liberally construed this count as asserting ADA claims of discrimination based on a failure to accommodate, wrongful termination, and hostile work environment. Lastly, at Count IV, Plaintiff avers that Defendant unlawfully discriminated against Plaintiff in violation of his rights under the PHRA. (Id. at ¶¶71-73).

         Defendant moves to dismiss Plaintiffs claims of unlawful employment discrimination on the grounds that: (1) Plaintiff failed to allege sufficient facts to support the alleged claims; (2) some of Plaintiff s Title VII and ADA claims are time-barred because they accrued more than 300 days prior to Plaintiffs filing of his charge with the EEOC; and (3) Plaintiffs PHRA claims should be dismissed for failure to exhaust administrative remedies. In his response, Plaintiff agrees to withdraw the PHRA claims, without prejudice, but disputes Defendant's remaining arguments as to the insufficiency of facts alleged to support his claims and maintains that the Title VII and ADA claims are not time-barred pursuant to the continuing violations theory. Notwithstanding, Plaintiff requests leave to amend the complaint in the event this Court grants Defendant's motion to dismiss. This Court will address each of Plaintiff s claims in turn.

         Title VII and § 1981 Denial of Transfer Claims

         Under Title VII and § 1981, it is unlawful for an employer to discriminate against any individual with respect to employment and/or employment-related matters because of that individual's race and/or color.[5] Title VII makes it also unlawful for an employer to discriminate against any individual because of his or her national origin. Here, Defendant contends that Plaintiffs Title VII and § 1981 denial of transfer claims fail because Plaintiff has not alleged sufficient facts for this Court to reasonably infer that Defendant's denial of Plaintiff s requests to transfer to the first shift was based on his race, color, and/or national origin.[6] This Court agrees.

         To assert a viable claim for employment discrimination under Title VII and § 1981, the plaintiff must allege facts sufficient to show that: (1) he is a member of a protected class; (2) he is qualified for the position or satisfactorily performed the duties required by his position; (3) he suffered an adverse employment action; and (4) either similarly-situated non-members of the protected class were treated more favorably, or the circumstances of the adverse employment action give rise to an inference of unlawful discrimination. Groeber v. Friedman & Schuman, P.C., 555 F. App'x 133, 135 (3d Cir. 2014) (Title VII); Wallace v. Federated Dep't Stores, Inc., 214 F. App'x 142, 144-45 (3d Cir. 2007) (§ 1981). “While similarly situated does not mean identically situated, the plaintiff must nevertheless be similar in all relevant respects.” Opsatnik v. Norfolk S. Corp., 335 F. App'x 220, 222-23 (3d Cir. 2009) (citation and internal quotation marks omitted). Allegations to consider when comparing a defendant's treatment of a plaintiff with its treatment of a similarly-situated non-member of the plaintiffs protected class include, but are not limited to, “that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them.” Id. at 223 (citation and internal quotation marks omitted). In addition to direct comparator allegations, an inference of discrimination can also be supported by allegations “of similar racial discrimination of other employees, or [allegations] of discrimination from statements or actions by [the plaintiff's] supervisors suggesting racial animus.” Golod v. Bank of Am. Corp., 403 F. App'x 699, 702 n.2 (3d Cir. 2010); see also Hobson v. St. Luke's Hosp. & Health Network, 735 F.Supp.2d 206, 214 (E.D. Pa. 2010).

         As to the denial of transfer claims, Plaintiff asserts that: (1) on December 15, 2014, Plaintiff met with Windel and requested a transfer for health reasons to a first-shift opening of an unspecified position, but on January 12, 2015, this first-shift opening was awarded to a Caucasian employee from the maintenance department, (Compl. at ¶¶30-45); (2) on May 20, 2015, Plaintiff sent an email to Sherman and Windel formally requesting transfer to the May 4, 2015 first-shift Operating Engineer vacancy, and on June 23, 2015, Plaintiff discussed the health reasons for his interest in this vacancy with Potts, (id. at ¶¶48, 50-53); and that (3) Plaintiff continually informed Defendant of his interest in transferring to a first-shift work schedule, and Defendant assured Plaintiff that he could request a transfer if there was a first-shift opening. (Id. at ¶¶27-28).

         Of these factual allegations, possibly one of them conceivably relates to his claims of race, color, and/or national origin discrimination: the January 12, 2015 hiring of a Caucasian maintenance employee to fill a first-shift opening for an unspecified position Plaintiff had requested. (Id. at ΒΆΒΆ44-45). However, Plaintiff fails to allege whether the vacancy was for an Operating Engineer position or some other position for which he was qualified. Thus, as to this contention, Plaintiff does not satisfy the second prong for a discrimination claim because it is impossible to determine whether Plaintiff was qualified for the unspecified position. Further, based on the meager factual allegations pled regarding the requirements of the vacant position, it is impossible to ascertain whether the individual selected was similarly situated to Plaintiff but treated differently by Defendant. In light of the lack ...


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