United States District Court, E.D. Pennsylvania
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.
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)).
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)).
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.
November 23, 2016, plaintiff filed a charge of employment
discrimination with the Equal Employment Opportunity
Commission (“EEOC”), charge number
1513. The charge is not attached and contents
are not described in the complaint. The EEOC “Intake
Questionnaire” 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
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
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
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.
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.
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 ...