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Guerriero v. Lock Haven University of Pennsylvania

United States District Court, M.D. Pennsylvania

December 11, 2017



          Matthew W. Brann, United States District Judge.

         I. BACKGROUND

         When the Civil Rights Act of 1964 was passed, then President Lyndon B. Johnson said at its signing: “This Civil Rights Act is a challenge to all of us to go to work in our communities and our States, in our homes and in our hearts, to eliminate the last vestiges of injustice in our beloved country.” The purpose of “Title VII is [] to help ensure equality in the workplace by removing barriers that have yielded systematic inequality in that setting.”[1]

         Curiously, this is the third statutory retaliation action Joseph Patrick Guerriero has filed against his employer[2] in his less than one score tenure with Lock Haven University. Defendants have filed a motion to dismiss Guerriero's amended complaint, which, although this action has strayed far from the intent of the statue, nevertheless survives.


         A. Motion to dismiss standard of Review

         When considering a motion to dismiss for failure to state a claim upon which relief may be granted, [3] a court assumes the truth of all factual allegations in a plaintiff's complaint and draws all inferences in favor of that party;[4] the court does not, however, assume the truth of any of the complaint's legal conclusions.[5] If a complaint's factual allegations, so treated, state a claim that is plausible - i.e., if they allow the court to infer the defendant's liability - the motion is denied; if they fail to do so, the motion is granted.[6]

         Here, Defendants argue that Plaintiff did not establish a prima facie case; he is not required to do so, however, on a Rule 12(b)(6) motion. The United States Court of Appeals for the Third Circuit clarified this point last year, stating “a complaint need not establish a prima facie case in order to survive a motion to dismiss.”[7] What is more, a “retaliation claim may survive [a] motion to dismiss if [Plaintiff] pleads sufficient factual allegations to raise a reasonable expectation that discovery will reveal evidence of the following elements: (1) [Plaintiff] engaged in conduct protected by Title VII; (2) the employer took adverse action against [Plaintiff]; and (3) a causal link exists between her protected conduct and the employer's adverse action.”[8] Moreover, “Twombly and Iqbal distinguish between legal conclusions, which are discounted in the analysis, and allegations of historical fact, which are assumed to be true even if “unrealistic or nonsensical, ” “chimerical, ” or “extravagantly fanciful.”[9]

         B. Retaliation under Title VII and PHRA

         Justice Stephen Breyer speaking for the Supreme Court of the United States in the seminal case of Burlington N. & Santa Fe Ry. Co. v. White, explained, “the antiretaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.”[10] “The antiretaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.”[11]

         Section 704(a) sets forth Title VII's antiretaliation provision in the following terms:

“It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”[12]

         “The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”[13] Justice Breyer continued, “in our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination..”[14] “We speak of material adversity because we believe it is important to separate significant from trivial harms.”[15] “Title VII, we have said, does not set forth “a general civility code for the American workplace.”“[16] “An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”[17] “The antiretaliation provision seeks to prevent employer interference with “unfettered access” to Title VII's remedial mechanisms.”[18] “It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC, ” the courts, and their employers.”[19] “And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence.”[20]

         Justice Breyer concluded, noting:

We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective….
We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale, supra, at 81-82, 118 S.Ct. 998. A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children. Cf., e.g., Washington, supra, at 662. A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination. See 2 EEOC 1998 Manual § 8, p. 8-14. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an “act that would be immaterial in some situations is material in others.” Washington, supra, at 661.[21]

         The elements of retaliation are the same for both Plaintiff's Title VII and PHRA claims.[22] As set forth above, the elements are “(1) plaintiff engaged in conduct protected by Title VII; (2) the employer took adverse action against plaintiff; and (3) a causal link exists between plaintiff's protected conduct and the employer's adverse action.”[23]

         For purposes of the instant motion, Defendants concede that Plaintiff has stated a claim satisfying the first two elements. Defendants argue that Plaintiff has not stated a claim for the third element, the causal link.

         A plaintiff may establish the requisite causal connection between a protected activity and an adverse employment action through either “(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.”[24] Alternatively, in the absence of such evidence, the plaintiff can satisfy this element if “from the ‘evidence gleaned from the record as a whole, ' a trier of fact can infer causation.”[25]

         C. Much of Guerriero's allegations were not administratively exhausted

         Before turning to whether or not Guerriero has stated a claim for retaliation, I note first that many of his allegations were not brought before the EEOC and, therefore, not administratively exhausted. “Before filing suit under Title VII and the PHRA, [Plaintiff's must] timely exhaust each statute's administrative remedies.”[26] “Under Title VII, a claimant must file an EEOC charge reporting unlawful employment practices within 300 days of the challenged conduct;”[27] the same time limit applies under the PHRA because Plaintiff here cross-filed with the two agencies. “Promotion decisions are subject to these time limitations and accrue when the claimant was denied the promotion, not when the claimant discovers the allegedly unlawful basis for the decision.”[28]

         Here, Guerriero filed his Notice of Charge of Discrimination to the EEOC/PHRC on March 16, 2015. The ...

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