United States District Court, W.D. Pennsylvania, Pittsburgh.
OPINION AND ORDER
MARILYN J. HORAN UNITED STATES DISTRICT JUGDE.
Matthew Powdrill ("Powdrill") brings the within
action for damages related to a Title VII retaliation claim
against Defendant, Smoke BBQ Taqueria ("Smoke
BBQ"). Pending before the Court is Smoke BBQ's
Motion to Dismiss for Failure to State a Claim. (ECF No. 5).
Upon review of the Complaint (ECF Nos. 1, 1-2), Smoke
BBQ's Motion to Dismiss and Brief in Support (ECF No. 6),
Powdrill's Brief in Opposition (ECF No. 11), Smoke
BBQ's Reply Brief (ECF No. 15), and for the following
reasons, Smoke BBQ's Motion to Dismiss is granted.
Matthew Powdrill ("Powdrill") is a citizen of
Pennsylvania and an African American male. (ECF No. 1 at
¶ 3; ECF No. 1-2 at ¶ 4). In 2015, Defendant Smoke
BBQ Taqueria, a restaurant in Pittsburgh, Pennsylvania
("Smoke BBQ") employed Powdrill as a prep cook.
(ECF No. 1-2 at ¶¶ 2-3, 5). In June 2017, Powdrill
filed a Charge of Discrimination with the Equal Opportunity
Employment Commission ("EEOC") based upon race
discrimination, and the EEOC issued a Notice of Right to Sue
on or about July 13, 2017. (ECF No. 1 at ¶¶ 9, 11).
thereafter, Smoke BBQ's owner, Jeff Petruso
("Petruso"), and Powdrill's supervisor, Kate,
met with Powdrill to discuss the EEOC Charge. Id. at
¶ 12. At the meeting, when Powdrill attempted to discuss
his EEOC Charge, Petruso became angry and stressed to
Powdrill that he and his employees were not racist.
Id. at ¶¶ 13-14. Petruso then sent
Powdrill home for the day. Id. at ¶ 15.
October 21, 2017, Powdrill was giving advice to a new cook at
Smoke BBQ on how to work more efficiently, when his
coworkers, Mike and Rusty, yelled at him to "just shut
the fuck up and do what you need to do[.]" Id.
at ¶¶ 16-18. Powdrill alleges that he responded to
Mike by telling him "you don't need to get into my
face to speak with me." Id. at ¶ 19. Four
days later, Petruso and Kate approached Powdrill with a write
up for threatening Mike. Id. at ¶¶ 20- 21.
Powdrill refused to sign the write up, believing it was in
retaliation to the EEOC Charge he had filed in June 2017.
Id. at ¶ 23. Powdrill then asked his
supervisor, Kate, whether she would investigate the
allegations made against him. Id. at ¶ 25. Kate
allegedly responded by telling Powdrill "no I don't
care about that. I'm tired of your shit. Sign this or
we're done here." Id. at ¶ 26. After
Powdrill again refused to sign the write up, he was
terminated from Smoke BBQ, less than one week after his
ninety-day window to file suit lapsed per the EEOC's
Notice of Right to Sue. Id. at ¶¶ 27-28.
The Employee Warning Notice, which Powdrill refers to as a
"write-up," states in part as follows:
By signing this form, you confirm that you understand the
information in this warning. You also confirm that you and
your manager have discussed the warning and a plan for
improvement. Signing this form does not necessarily indicate
that you agree with this warning.
(ECF No. 6-1).
Standard of Review
reviewing a Rule 12(b)(6) motion to dismiss, the court must
"accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief."
Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014)
(quoting Phillips v. County of Allegheny,
515 F.3d 224, 233 (3d Cir. 2008). "To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544? 570 (2007)). "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
the plausibility standard "does not impose a probability
requirement," Bell Atlantic Co. v. Twombly, 550
U.S. 544, 556 (2007), it does require a pleading to show
"more than a sheer possibility that a defendant has
acted unlawfully," Iqbal, 556 U.S. at 678. A complaint
that pleads facts "merely consistent with a
defendant's liability . . . stops short of the line
between possibility and plausibility of entitlement to
relief." Id. (citation and internal quotation
marks omitted). The plausibility determination is "a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Id. at 679.
Third Circuit has held that district courts should perform a
two-part analysis when presented with a Rule 12(b)(6) motion
to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009). First, the court should consider only
factual allegations, not legal conclusions. Id. at
210-11. Second, accepting all factual allegations as true,
the court "must then determine whether the facts alleged
in the complaint are sufficient to show that the plaintiff
has a 'plausible claim for relief.5" Id.
(quoting Iqbal, 556 U.S. at 679). To survive a motion to
dismiss, a pleading party need only "put forth
allegations that raise a reasonable expectation that
discovery will reveal evidence of the necessary
elements." Id. at 213.
BBQ contends that Mr. Powdrill fails to sufficiently plead a
retaliation claim because he voluntarily abandoned his job
rather than acknowledge receipt of a written warning, which
cannot give rise to a constructive ...