United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
NOW, this 9th day of May, 2018, upon consideration
of Defendant's Motion to Dismiss (ECF No. 9),
Plaintiff's Response (ECF No. 13), and Defendant's
Reply (ECF No. 14), it is ORDERED that
Defendant's Motion (ECF No. 9) is GRANTED IN
PART. The Motion is DENIED with
respect to Counts I, II, IV, VI and
GRANTED with respect to Counts III
and V, which are dismissed without prejudice.
Plaintiff may file a Second Amended Complaint on or before
May 23, 2018 in accordance with this Order. It is further
ORDERED that Defendant's Motion to Stay
Discovery (ECF No. 10) is DENIED as
Mallory Ross is an African-American woman who worked in the
security services industry for over six years and served as a
Corrections Officer for over two years. (Compl. ¶ 13.)
She began working as an Area Supervisor for Defendant G4S
Secure Solutions on January 4, 2016. (Id.
¶¶ 6, 11.) G4S provides contract security services
to different facilities throughout the country. (Id.
¶ 7.) In February 2016, Ross's supervisor John
Cormerer began making “discriminatory, sexist and
racist remarks” towards her. (Id. ¶ 16.)
Cormerer decided which employees would be assigned to certain
customer locations and when making those decisions, he would
“openly question the race and gender of the
employees” and would refuse to place non-white and/or
female individuals at certain locations in favor of their
white and/or male counterparts. (Id. ¶ 17.)
Ross was not permitted to perform the same job duties as her
“non-black and male counterparts.” (Id.
applied for an Operations Manager position in February 2017
and was interviewed by Cormerer, but a white male, Joel
Thorton, received the job. (Id. ¶¶ 20,
21.) Thorton was “less experienced, less senior and
less efficient” than Ross. (Id. ¶ 21.) In
May 2017, Cormerer said that he would no longer place female
workers at the location that Ross supervised. (Id.
¶ 22.) Ross complained to Thorton about the
discrimination she was experiencing and G4S did not
investigate her complaints. (Id. ¶¶ 24,
25.) After Ross complained, G4S management criticized her
performance “in a manner disparately to her non-black
and/or male coworkers.” (Id. ¶ 26.) Ross
was fired on May 15, 2017 “in close proximity to her
complaints about discrimination.” (Id. ¶
Counts I, II, and III of her Complaint, Ross alleges claims
under Title VII for race discrimination, gender
discrimination, and retaliation. In Counts IV and V Ross
brings claims under 42 U.S.C. § 1981 for race
discrimination and retaliation. In Count VI Ross asserts a
claim for a violation of the Pennsylvania Wage Payment and
Collection Law, 43 P.S. § 260.3.
moves to dismiss Ross's Title VII claims and argues that
the Court does not have subject matter jurisdiction because
Ross “failed to attached her EEOC Charge of
Discrimination” to her Amended Complaint. (Mot., at 2.)
At the pleading stage, Ross is not required to attach the
EEOC charge or her right to sue letter-she only needs to
“sufficiently allege exhaustion.” Boyer v.
City of Philadelphia, No. 13-6495, 2015 WL 9260007, at
*3 (E.D. Pa. Dec. 17, 2015); Ackah v. Pennsylvania
Dep't of Corr., No. 08-0376, 2008 WL 11366478, at *6
(M.D. Pa. Nov. 14, 2008); Carlton v. City of
Philadelphia, No. 03-1620, 2004 WL 633279, at *2 (E.D.
Pa. March 30, 2004). Ross alleges that she exhausted her
administrative remedies by filing a charge of discrimination
with the EEOC on June 2, 2017 pertaining to race, color,
gender discrimination and retaliation, she received a right
to sue letter on August 4, 2017, and filed a Complaint within
90 days of receiving the letter on October 13, 2017. (Compl.
¶¶ 34, 40, 46.)
argues next that Ross is “precluded from
pursuing” a claim pursuant to 42 U.S.C. § 1981 for
race discrimination because the allegations supporting the
claim are identical to those supporting her claim for race
discrimination under Title VII. (Mot., at 4.) Title VII and
Section 1981 remedies are distinct and not mutually
exclusive. Johnson v. Railway Express Agency, Inc.,
421 U.S. 454 (1975); Gordon v. National R.R. Passenger
Corp., 564 F.Supp. 199, 205 (E.D. Pa. 1983). To prove
liability under Section 1981, Ross must show a racially
discriminatory purpose for the Defendant's actions.
Gordon, 564 F.Supp. at 205. Ross has done so as she
alleges that Cormerer would make racist remarks toward her
and openly question the race of employees who were proposed
for certain work placements. (Compl. ¶¶ 16, 17.)
further contends that Ross fails to state claims under Title
VII for race and gender discrimination because she does not
allege that she was qualified for her position and that
similarly situated comparators exist. (Mot., at 5.) G4S is a
company that provides contract security services. Prior to
being offered and accepting her position at ¶ 4S, Ross
worked in the security services industry for over six years.
Further, there is nothing “to indicate that [her] job
performance was unsatisfactory.” Tanay v. Encore
Healthcare, LLC, 810 F.Supp.2d 734, 745 (E.D. Pa. 2011).
Therefore, “it is reasonable to infer that [Ross] was
qualified for [her] position, based upon [her]
credentials” and her one and a half year tenure at G4S.
G4S argues that Ross did not sufficiently allege that
similarly situated individuals who were not members of her
protected class were treated more favorably. (Mot., at 5, 6.)
In its Reply brief, G4S construes Ross's allegations in a
way that suggest the “comparators” were in fact
subordinates and therefore not similarly situated to Ross.
(Reply, at 5.) G4S's argument at this stage is without
merit. Throughout her Complaint, Ross asserts that her
non-black and male “counterparts” were treated
differently. (Compl. ¶¶ 17, 19.)
G4S contends that Ross fails to adequately plead Title VII
and Section 1981 retaliation claims because she fails to
allege that she engaged in protected activity or that there
was a causal connection between the protected activity and
her termination. (Mot., at 6, 7.) Ross alleges that she
“directly objected to Cormerer's discriminatory
comment” and she “complained to Joel Thorton,
” the Operations Manager, “expressing her
concerns of discrimination” and that this alleged
discrimination precluded her from being promoted. (Compl.
¶ 24.) She further alleges that G4S did not investigate
her complaints. (Id. ¶ 25.) Ross's verbal
complaints to a manager about the alleged discrimination are
protected activities. See Burton v. Pennsylvania Bd. of
Prob. & Parole, No. 02-2573, 2002 WL 1332808, at *5
(E.D. Pa. June 13, 2002); see also Abramson v. William
Paterson Coll. of New Jersey, 260 F.3d 265, 288 (3d Cir.
2001) (explaining that written or oral and formal or informal
complaints may be viewed as protected activity). In an
attempt to allege that her complaints to management caused
her termination, Ross asserts that management
“displayed hostility and animosity” towards her
by “nitpicking and criticizing her work
performance” after she complained ...