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Warsavage v. 1 & 1 Internet, Inc.

United States District Court, E.D. Pennsylvania

May 24, 2018

DAMIEN WARSAVAGE
v.
1 & 1 INTERNET, INC.

          MEMORANDUM

          Bartle, J.

         Plaintiff Damien Warsavage has sued his former employer, Defendant 1 & 1 Internet, Inc. (“1 & 1”) for wrongful termination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. He also alleges identical state law claims under the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Const. Stat. §§ 951, et seq. Before the court is the motion of 1 & 1 to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.

         I

         When considering a motion to dismiss for failure to state a claim, the court must accept as true all factual allegations in the complaint and draw all inferences in the light most favorable to the plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). We must then determine whether the pleading at issue “contain[s] sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         On a motion to dismiss under Rule 12(b)(6), the court may consider “allegations contained in the complaint, exhibits attached to the complaint, and matters of public record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citing 5A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).

         II

         For present purposes we accept as true the allegations set forth in the complaint. Warsavage, a gay, Asisan-American male, began working for 1 & 1 in April 2006 as a “Billing CSR.” Beginning in February 2014, he held the position of Third Level Agent and Support Specialist. In this role he was responsible for handling checks, mail, PayPal charges, and related tasks. Melissa Brown, one of Warsavage's direct managers, was an individual who assigned work to him.

         On November 23, 2016, plaintiff filed a charge of employment discrimination with the Equal Employment Opportunity Commission (“EEOC”), charge number 1513.[1] The charge is not attached and contents are not described in the complaint. The EEOC “Intake Questionnaire”[2] related to this charge, which is attached as an exhibit, states: “Based on confidential information shared with me, I have every reason to believe that this company engages in underhanded hiring practices that center heavily around non-transparency, favoritism, and retaliation.” In addition, Warsavage wrote on the questionnaire: “I asked to meet with company leadership 3 times and only got to speak to an HR agent and HR director. Neither one was up front and honest about our hiring practices. And the company director has openly ignored me.” Warsavage checked the following boxes on the questionnaire describing the basis for his claim of discrimination: race, sex, national origin, retaliation, and color.

         In December 2016 and January 2017, shortly after he filed his first charge of discrimination with the EEOC, his workload increased. In addition, Warsavage was present on an occasion in early January 2017 when Brown, one of his managers, mocked Asian Americans. Specifically, a coworker offered Brown Japanese candy and explained that “it was like a creamsicle, ” to which Brown responded, “‘[a]hhh [s]oooo, ' in a very stereotypical faux-Asian voice.”

         On January 19, 2017, Warsavage learned from Brown that he was being demoted. Brown did not give Warsavage a reason for the demotion. Thereafter he was locked out of accessing the computer system and assigned tasks that were normally assigned to a First Level Agent, two levels below his previous position.

         The day after Brown told him he was being demoted, Warsavage took the day off from work. He emailed two of his coworkers and explained to them what had happened. In response, his coworkers informed him that other coworkers in the office believed that the demotion was in retaliation “for something” and that Brown had asked the two coworkers if they knew whether Warsavage had quit yet and if she should deactivate his keycard.

         On January 27, 2017 plaintiff filed a second charge of discrimination with the EEOC, charge number 794, which is appended to the complaint. The following boxes are checked on the charge as identifying circumstances of alleged discrimination: race, color, sex, national origin, and retaliation. Additionally, the charge notes “hiring” as an issue. Also attached to the complaint is a letter from the EEOC stating that it had received a request from plaintiff's counsel concerning the January 27, 2017 charge, but that “[a]fter a diligent effort, the Commission is unable to locate the records.” On January 31, 2017, Warsavage sent a letter to 1 & 1 notifying it of his intent to resign on February 24, 2017. Defendant responded demanding that he leave “almost immediately.” The complaint does not allege the date when he stopped working at 1 & 1.

         Warsavage received a right-to-sue notice on June 12, 2017 for his first EEOC charge. On August 15, 2017 he received a right-to-sue notice for his second EEOC charge. On November 9, 2017, Warsavage filed the instant action against 1 & 1 with claims denominated for ...


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