United States District Court, E.D. Pennsylvania
MEMORANDUM OPINION INTRODUCTION
I. QUIÑONES ALEJANDRO, J.
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.
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.
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
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.). 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
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.”
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
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
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).
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