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Angelini v. U.S. Facilities, Inc.

United States District Court, E.D. Pennsylvania

June 27, 2018

DUILIO ANGELINI Plaintiff
v.
U.S. FACILITIES, INC. Defendant

          MEMORANDUM OPINION INTRODUCTION

          NITZA I. QUIÑONES ALEJANDRO, J.

         Duilio Angelini (“Plaintiff”) filed an amended employment discrimination complaint against his former employer, U.S. Facilities, Inc. (“Defendant”), in which he asserts claims of unlawful discrimination and hostile work environment based on violations of 42 U.S.C. §1981 (“§1981”); Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (“Title VII”); the Age Discrimination in Employment Act of 1967, 29 U.S.C. §623 et seq. (the “ADEA”); the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. (the “PHRA”); and the Philadelphia Fair Practices Ordinance, §9-1100 et seq. (the “Philadelphia Ordinance”). [ECF 4]. Plaintiff has also asserted state law claims for wrongful discharge under the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. §1421, and Pennsylvania common law.

         Before this Court is Defendant's motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted filed pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). [ECF 6]. Plaintiff has opposed the motion. [ECF 11]. The issues presented have been fully briefed and, therefore, this matter is ripe for disposition. For the reasons set forth herein, Defendant's motion to dismiss is granted, in part, and denied, in part.

         BACKGROUND

         When ruling on a motion to dismiss, a court must accept as true all the factual allegations in the operative complaint, and construe the complaint in the light most favorable to the non-movant. Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). Here, Plaintiff's amended complaint contains seven counts wherein Plaintiff avers that Defendant; to wit: unlawfully discriminated against him because of his race and/or that Defendant's conduct toward Plaintiff constituted a hostile work environment in violation of §1981 and Title VII, (Counts I and II, Am. Compl. at ¶¶38-53); unlawfully discriminated against him based on his age and/or that Defendant's conduct toward Plaintiff constituted a hostile work environment, in violation of the ADEA, (Count III, id. at ¶¶54-65); unlawfully discriminated against Plaintiff based on his age, race, religion, and ethnicity/ancestry in violation of his rights under the PHRA and the Philadelphia Ordinance, (Counts IV and V, id. at ¶¶66-75); unlawfully terminating Plaintiff's employment in retaliation for having made reports of wrongdoing in violation of the Pennsylvania Whistleblower Statute and Pennsylvania common law. (Counts VI and VII, id. at ¶¶115-26). Briefly, the relevant facts in Plaintiff's amended complaint are as follows:

Plaintiff is a Caucasian male of Italian American descent and a devout Catholic. (Am. Comp. ¶2). At the time of his firing in February 2017, Plaintiff was “over the age of forty.” (Id.).[1] Defendant is alleged to be a minority business enterprise which holds a contract to manage certain properties owned by the City of Philadelphia (the “City”). (Id. at ¶76). In particular, Defendant provided management services for three buildings owned by the City; to wit: the Criminal Justice Facility (the “CJC”); the Municipal Services Building (the “MSB”); and the One Parkway Building (the “OPB”) (collectively, the “Triplex”). (Id.). At all times relevant to Plaintiff's claims, Plaintiff reported directly to Chief Operating Officer (“COO”) Jim Dorris, who in turn reported to James Dobrowolski, Defendant's President and CEO. (Id. at ¶18).
Facts Relevant to Plaintiff's Discrimination Claims
On December 17, 2002, during a phone call in which Plaintiff was offered a job with Defendant, Defendant's then-COO, Wendall Ashley, asked him “if he got along with minorities” and if he “got along with black people.” (Id. at ¶12). Plaintiff responded that he got along with all people. (Id.). Shortly after this phone call, on December 19, 2002, Plaintiff began working for Defendant as a Support Supervisor. (Id. at ¶13). Plaintiff proceeded through the ranks with Defendant and became the Building Manager at the CJC, on January 15, 2007. (Id.). According to Plaintiff, he was transferred to the CJC because the performance of the previous building manager (an African American) was substandard and there was a need to repair relationships with City officials. (Id.).
Sometime at the end of December 2002, Plaintiff had an initial in-person meeting at the MSB. (Id. at ¶14). During the meeting, Mr. David Rivers (an African American), a vice president for one of Defendant's subcontractors, turned to one of Defendant's Building Managers, Mr. Herman Woods (an African American), pointed to Plaintiff and Mr. Griff Reigard (both Caucasians), and made the comment: “I think we're going to have problems with those two at the end of the table.” (Id.).
On February 5, 2016, Plaintiff was formally notified of his promotion from Building Manager at the CJC (a position he had held since 2007) to Project Manager of the Triplex. (Id. at ¶15). The promotion became effective on February 29, 2016. (Id.).
During his employment, Plaintiff had to interact with Ms. Carmen Diaz Rosario, a Puerto Rican female, and Manager of the MSB. (Id. at ¶19). Without any specificity as to timing or substance, Plaintiff alleges that he “had to endure Ms. Rosario's negative comments regarding Italians, whether directed at himself (sic) or directed at a Philadelphia public official.” (Id.). Plaintiff interacted with Mr. Ed Siegler, Assistant Project Manager, who also made fun of Plaintiff's Italian heritage. (Id. at ¶22).
Plaintiff also interacted with Mr. Zachary Jones, an African American, Maintenance Manager. (Id. at ¶20). Without any specificity, Plaintiff alleges that Mr. Jones repeatedly directed derogatory comments about Italians to Plaintiff, asserting that “all Italians are related and alike, even smelling alike.” (Id.). Mr. Jones also allegedly “constantly used the offensive and derogatory term ‘Mamaluke' to refer to Plaintiff specifically and Italians in general.” (Id.). Mr. Jones “denigrate[d] Plaintiff's religion with a host of negative and disparaging statements, including his statement that ‘All Catholics drink Jesus' juice.'” (Id.). Mr. Jones made fun of and criticized Plaintiff's maintenance of personal religious objects in his office space. (Id.). Plaintiff also alleges that Mr. Jones' conduct was “consistent with the Anti-Catholic tone set by Mr. Karl Letterman, Project Manager of the Triplex.” (Id.).
During the course of his employment, Plaintiff also interacted with Ms. Susan Laramore, an African American Human Resources Manager. (Id. at ¶24). According to Plaintiff, Ms. Laramore “exhibited racial hostility towards Plaintiff, repeatedly attempting to undermine Plaintiff in his work.” (Id.). Sometime in 2012, Plaintiff alleges that he was verbally abused and physically intimidated during an evaluation attended by Project Manager, Kevin McKinney, and Assistant Project Manager Christian Holland (both African Americans). (Id. at ¶26). The incident was reported to Ms. Laramore and Vice President Karl Letterman, but no action was taken. (Id.).
On January 9, 2017, Plaintiff was called to a meeting with CEO Dobrowolski and Mr. Dorris, where Plaintiff was told that there had been complaints against him about his leadership and management style. (Id. at ¶¶29, 31). Plaintiff was offered the choice of either remaining as Triplex Project Manager to be shadowed by Mr. Dorris, or to be demoted to Building Manager for the CJC. (Id. at ¶31). At or about the same time, CEO Dobrowolski asked Plaintiff how old he was and how much longer he wanted to work. (Id. at ¶32).
On January 31, 2017, Plaintiff attended another meeting with CEO Dobrowolski and Mr. Dorris and was asked whether he would accept a demotion, with the option of remaining as Project Manager no longer being offered. (Id. at ¶33). Plaintiff protested that he was being handled in a fashion fundamentally different than others. (Id.). He subsequently took approved vacation to tend to the health of his wife. (Id. at ¶34). On February 3, 2017, while on this approved vacation, Plaintiff was fired, (id.), and was replaced by someone younger in age. (Id. at ¶37).
Facts Relevant to Plaintiff's Whistleblower/Wrongful Discharge Claims
Plaintiff commenced his employment with Defendant on December 19, 2002. (Id. at ¶86). In late December 2013 and January 2014, when he was Building Manager for the CJC, Plaintiff reported life safety issues with respect to the lack of elevator preventive maintenance. (Id. at ¶91). A memo was sent to Project Manager, Mr. Kevin Smith, with copies to Assistant Project Managers, Mr. Edward Siegler and Ms. Carmen Diaz-Rosario, and Maintenance Manager, Mr. Zachary Jones. (Id.). The memo reflected that necessary work had not been completed. (Id.). Plaintiff told Mr. Smith and Mr. Siegler that this was a life safety issue and that those working at the Triplex were concerned about the fact that the elevators were not maintained and were repeatedly out of order. (Id.).
In October 2013, Defendant awarded its elevator maintenance contract to Schindler Elevator Corporation (“Schindler”). (Id. at ¶100). Defendant's John Lontz was the contract manager and his brother, Mr. Robert Lontz, worked for Schindler as the Elevator Superintendent. (Id.). Shortly after the contract was awarded, Plaintiff brought this alleged conflict of interest to the attention of Project Manager, Mr. Kevin Smith. (Id.). Mr. Smith agreed with Plaintiff that this was a conflict, but advised Plaintiff to keep his mouth shut or be fired. (Id.).
Plaintiff contends that Schindler's services were substandard, late, and overly expensive. (Id.). On May 29, 2014, Plaintiff advised senior management in writing that Schindler mechanics were not updating elevator log books as required by the City. (Id. at ¶93). On October 8, 2014, Plaintiff advised senior management in writing that “I personally don't believe that Schindler spends enough time at CJC on PM (preventative maintenance) of elevators/escalators, just from the fact that every time we do have an issue, they're at OPB or MSB.” (Id. at ¶94). On January 5, 2015, Plaintiff complained to senior management in an email about the lack of elevator preventative maintenance by Schindler. (Id. at ¶95). Plaintiff's email included his criticism of Schindler's inefficiency:
“Schindler has taken a 6 to 8 hour job, and has turned it into a one week project.” (Id. at ¶96). This email was copied to City Department of Public Property employee, Jerry Merrigan. (Id. at ¶95). Defendant's John Lontz responded “Let's be mindful of our emails. Jerry doesn't need to see all this.” (Id.). Plaintiff alleges that his repeated protests mounted to the point that Mr. Siegler told elevator subcontractors to withhold information from Plaintiff “because we can't let Lou know what's going on.” (Id. at ¶98).
Plaintiff allegedly complained repeatedly to Mr. Smith and Mr. Siegler that Schindler had stopped completing mandatory preventative maintenance. (Id. at ¶101). Elevator issues with Schindler continued for the remainder of 2015 and into April 2016. (Id. at ¶102).
The contract with Schindler was terminated in July 2016. (Id.). On August 4, 2016, an elevator accident at the CJC resulted in serious injuries to a Sheriff's deputy. (Id.). On the weekend of the CJC elevator accident, Plaintiff offered to relieve Mr. Siegler at the accident site, but was refused. (Id. at ¶104). Plaintiff alleges that Mr. Dorris and HR Manager Anita Pirrone deliberately kept Plaintiff out of the information loop with respect to the accident. (Id.).
Shortly after the elevator accident, Plaintiff heard CEO Dobrowolski brag to Mr. Dorris that Defendant would be making a lot of money as a result of the accident. (Id. at ¶105). Plaintiff then saw CEO Dobrowolski and Mr. Dorris high-fiving each other. (Id.).
In a meeting on September 23, 2016, CEO Dobrowolski warned attendees to be careful regarding the Lontz brothers' relationship; to make it appear that there was no conflict of interest between the brothers and to state that a firewall was in place. (Id. at ¶103). Attendees were told to be careful about what was told to the City Department of Public Property Commissioner. (Id.). In September 2016, Mr. Siegler admitted that he and Mr. Jones routinely reset elevator control panels. (Id. at ¶107). Plaintiff admonished them never to do this as they were not licensed, certified, or trained elevator mechanics. (Id.). Between September 2016 and January 2017, Mr. Dorris held up funding to complete necessary weight load testing to the Triplex elevator systems because of purported money issues at Defendant. (Id. at ¶106).
On February 3, 2017, Plaintiff's employment with Defendant was terminated. (Id. at ¶112).

         LEGAL STANDARD

         When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court “must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The court must “determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.'” Id. at 211 (quoting Iqbal, 556 U.S. at 679). The complaint must do more than merely allege the plaintiff's entitlement to relief; it must “show such an entitlement with its facts.” Id. (citation and internal quotation marks omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'- ‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Threadbare recitals of the elements of a cause of action, ...


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