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Drummer v. Trustees of University of Pennsylvania

United States District Court, E.D. Pennsylvania

December 13, 2017

LEE J. DRUMMER, Plaintiff,


          Rufe, J.

         Plaintiff, Lee J. Drummer, brought this suit against his former employer, Defendant Hospital of the University of Pennsylvania, alleging age, sex, race, and disability discrimination and retaliation, and violation of the Family and Medical Leave Act (“FMLA”). Defendant has moved to dismiss his Amended Complaint on the grounds that certain claims are time barred and all claims are insufficiently alleged. For the reasons discussed below, Defendant's motion will be granted in part and denied in part, and Plaintiff will be granted leave to file a second amended complaint.

         I. BACKGROUND

         The following facts alleged in the Amended Complaint are assumed to be true, unless otherwise stated, for purposes of the Motion to Dismiss.

         Plaintiff is a 56-year-old African-American man who was employed by Defendant in 2014 and 2015, when the alleged events at issue took place.[1] He alleges that he is disabled and has a family member who is also disabled. While the Amended Complaint does not clearly identify Plaintiff's position, it appears, based on his allegations concerning “other secretaries, ” that Plaintiff was working as a secretary.[2] Several years before the events giving rise to this case, Plaintiff had filed an Equal Employment Opportunity Commission discrimination complaint against Defendant after being terminated, and was subsequently reinstated.[3]

         In June of 2014, Plaintiff learned that two other secretaries, who were both African-American women, were paid approximately $1.40 more per hour than he was.[4] He further believes that “other non-African-American secretaries” were paid more than he was, including a particular “lighter skinned individual” named Michael.[5] When he learned of the alleged pay disparities, he spoke with his supervising nurse managers.[6] Around that time, he was placed on a performance improvement plan (“PIP”) that lasted from June 2014 until March 2015.[7]

         Plaintiff believed the PIP was a “general form of harassment, ” and he said so to Defendant's human resources department sometime in March 2015.[8] The human resources personnel responded by suggesting that Plaintiff take a leave of absence “due to personal issues he was having at home.”[9] After hearing the suggestion, Plaintiff sought help from Defendant's Employee Assistance Program as well as from his physician, who prescribed him an antidepressant.[10]

         At some point during this time, Plaintiff applied for a “leave of absence” but was denied.[11] He also submitted a formal request for FMLA leave, but it is unclear whether this formal request was granted or denied.[12] In addition, he sought a transfer to a different unit for “health reasons, ” but was told that he would need to speak with the nurse manager before a transfer request could be entertained.[13]

         Although Plaintiff states that his request for leave was denied, it appears he did take time off from work, as he alleges that he received a correspondence from Defendant in early June 2015, “indicating that if he did not respond by June 8, 2015, he would be terminated.”[14] Plaintiff responded to the letter, [15] and was “told to report back to work” on June 10, 2015.[16] On that day, he was informed that he was being terminated for “performance issues in March 2015.”[17] He believes that he was replaced by “one or more younger secretaries.”[18]

         On March 10, 2016, Defendant filed a Charge of Discrimination with the EEOC and with the Pennsylvania Human Relations Commission alleging discrimination based on age, race, sex, and disability, and unlawful retaliation.[19] He received a Dismissal and Notice of Rights letter on March 17, 2016 and timely filed this suit, pro se, on June 14, 2016.

         After counsel was appointed, Plaintiff filed the Amended Complaint (Doc. No. 26). Counts I, II, and IV of the Amended Complaint allege discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981 respectively. Count III asserts disability discrimination and retaliation in violation of the Americans with Disability Act (“ADA”). Count V alleges interference and retaliation in violation of the FMLA.

         Defendant now moves to dismiss all claims.


         Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's “plain statement” lacks enough substance to show that he is entitled to relief.[20] In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party.[21] Courts are not, however, bound to accept as true legal conclusions couched as factual allegations.[22] Something more than a mere possibility of a claim must be alleged; a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”[23] The complaint must set forth “direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.”[24] In deciding a motion to dismiss, courts may consider “only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.”[25] A motion to dismiss may be granted if “the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.”[26]


         A. Timeliness

         Defendant asserts that Plaintiff's claims pursuant to the ADEA, Title VII, and the ADA are untimely to the extent they rely on alleged adverse employment actions that took place more than 300 days before the EEOC charge was filed on March 10, 2016. Specifically, Defendant asserts that any claims based on unequal wages received by Plaintiff prior to May 2015 or his placement on a PIP between March 2014 and March 2015 are untimely.

         A plaintiff bringing a claim under the ADEA, Title VII, or the ADA must file a Charge of Discrimination with the EEOC within 300 days of an alleged unlawful employment practice in order to later challenge those practices in court.[27] Failure to exhaust administrative remedies is generally fatal to a claim. However, because the failure to timely file an EEOC complaint is an affirmative defense, Defendant bears the burden of pleading and proof.[28]

         There are three adverse employment actions alleged on the face of the Amended Complaint: 1) a wage disparity between Plaintiff and other employees, 2) Plaintiff's placement on a PIP, and 3) Plaintiff's termination.[29] While Plaintiff's race, sex, and disability claims rely on all three of these alleged actions, Plaintiff's age discrimination claim under the ADEA relies solely on his termination. Thus, at the outset, because there is no dispute that Plaintiff's termination in June 2015 was within the 300 day time frame, Plaintiff's ADEA claim (Count I) is timely.[30]

         The Court also declines to hold at this stage of the proceedings that Plaintiff's unequal pay claims under Title VII and the ADA are untimely. Pursuant to the Lilly Ledbetter Fair Pay Act of 2009, an unlawful employment practice with respect to discrimination in compensation “occurs . . . when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, ” and a plaintiff may recover back pay for up to two years preceding the filing of the charge.[31]Here, Plaintiff alleges that he learned of a pay disparity between him and his co-workers in June 2014 and that he remained employed by the Defendant through June 10, 2015. This is sufficient at this stage to support an inference that between May 15, 2015 (300 days before March 10, 2016) and Plaintiff's termination, he continued to be affected by the same compensation decisions that affected him in June 2014. While Defendant asserts that Plaintiff took leave in March 2015, and may not have received pay in the last months prior to his termination, that is a factual question more appropriately resolved at a later stage of the proceedings.[32]

         In contrast, to the extent Plaintiff asserts that his placement on the PIP is independently actionable under the ADA or Title VII, that claim is untimely because the PIP lasted only until March 2015. Contrary to Plaintiff's contention, the PIP does not fall within the “continuing violations” doctrine because he was “aware of, and had complained about, the alleged hostile treatment” prior to the statutory period, when he told Defendant's human resources department that his placement on PIP was a form of “harassment.”[33] Moreover, Plaintiff has not alleged sufficient facts to establish that Defendant's conduct had the requisite relatedness, frequency, or pervasiveness to constitute a practice or pattern of discrimination rather than “the occurrence of isolated or sporadic acts.”[34]

         Accordingly, the Court will dismiss Counts II and III as untimely with respect to any claim based on Plaintiff's placement on the PIP as an independent adverse employment action. This, however, does not preclude Plaintiff from relying on his allegations concerning his placement on the PIP for purposes of his § 1981 claim race discrimination claim or to support an inference of discriminatory intent with respect to his Title VII, ADEA, and ADA claims.

         B. Failure to State a Claim

         1. Age, Sex, and Race Discrimination

         Where, as here, a plaintiff has not alleged direct evidence of purposeful discrimination and relies on indirect evidence to allege age, sex, or race discrimination in violation of Title VII, the ADEA, or § 1981, the complaint must first allege facts that, if true, would establish the following elements: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position he held; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that could give rise to an inference of intentional discrimination.[35] To plausibly allege the fourth element, the complaint may either: (1) allege that “similarly situated employees who . . . were not members of the same protected class . . . were treated more favorably under similar circumstances” or (2) allege facts that “otherwise show[ ] a causal nexus between [the employee's] membership in a protected class and the adverse employment action.”[36]

         Defendant contends that Plaintiff has failed to allege facts that would give rise to an inference of intentional discrimination with respect to his pay, his placement on a PIP, or his termination.

         With respect to alleged discrimination in pay, which Plaintiff only asserts in support of his race and sex discrimination claims, he relies on his allegations that other secretaries, who were not African-American, were paid more than he was, and that two female secretaries were paid approximately $1.40 more per hour than he was. At this stage of the proceedings, these allegations that other employees outside of his protected class, who had the same job title in the same hospital, were paid more than Plaintiff are sufficient to support an inference of sex and race discrimination with respect to his compensation.

         However, Plaintiff has failed to allege sufficient facts to state a claim of age, sex, or race discrimination based on his placement on a PIP or his termination. Plaintiff asserts that his termination and placement on PIP were pretextual. But he does not allege any facts to support his general claim that he was placed on a PIP or terminated because of his age, sex, or race rather than problems with his performance. Specifically, Plaintiff does not allege facts that would suggest he met Defendant's performance standards or that the PIP was otherwise unwarranted.[37]Nor does he allege that other employees who were outside of his protected status, but performed similarly or engaged in similar conduct, were treated differently. Plaintiff's bare assertion that he was replaced by a younger secretary does not raise his claim above the level of mere speculation.[38] Accordingly, Defendant has not stated a claim for age, sex, or race discrimination with respect to his placement on a PIP or his termination, and Counts I, II, and IV will be dismissed without prejudice.

         2. Disability Discrimination and Retaliation

         To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show that he is (1) disabled within the meaning of the ADA, (2) can perform essential functions of his job with or without reasonable accommodation, and (3) suffered an adverse employment action as a result of discrimination based on his disability.[39] Defendant ...

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