United States District Court, M.D. Pennsylvania
KALIM A. BHATTI, Plaintiff,
REPUBLICAN CAUCUS OF THE PENNSYLVANIA HOUSE OF REPRESENTATIVES, et al., Defendants.
H. Rambo Judge
before the court is Defendants' - the Republican Caucus
of the Pennsylvania House of Representatives (“the
Caucus”), Jennifer L. Jones (“Jones”), John
Dille (“Dille”), and Stephen Miskin
(“Miskin”), each in their individual and official
capacities (collectively, “individual
Defendants”) - motion to dismiss Plaintiff Kalim A.
Bhatti's complaint for lack of subject matter
jurisdiction and failure to state a claim upon which relief
may be granted under Federal Rules of Civil Procedure
12(b)(1) and (6). (Doc. 5.) For the reasons that follow, the
court will grant Defendants' motion to dismiss.
following facts are gleaned from Plaintiff's complaint
and are taken as true for purposes of disposing of
Defendants' motion to dismiss. Plaintiff immigrated from
Kenya to the United States as a child, growing up in
Harrisburg, Pennsylvania, and adheres to the Islamic faith.
(Doc. 1, ¶¶ 12, 21.) He was employed by the Caucus
as a “Communications Specialist 1 - Photographer”
from April 1998 through April 30, 2018. (Id.
¶¶ 14, 33.) Throughout his employment,
Plaintiff's immediate supervisor was Jones, the Photo
Manager in the Multi-Media Department. (Id. ¶
15.) Jones was supervised by Dille, the Video Department
Supervisor, and Dille reported to Miskin, the Caucus
Communications Supervisor. (Id. ¶ 16.) The
House Majority Leader supervised Miskin. (Id.)
alleges numerous instances of discriminatory or otherwise
offensive behavior in his complaint. Plaintiff states that
Jones and others accused him of being a terrorist on
September 11, 2001 because of his race, color, religion, and
national origin. (Id. ¶ 19.) Since 2008, Miskin
and the Caucus have expressed a preference for the Christian
faith. (Id. ¶ 26.) In approximately 2013,
Plaintiff was periodically and deliberately interrupted
during his daily prayer time. (Id. ¶ 21.) He
was denied a pay raise in 2013 after he began observing his
prayer regimen. (Id. ¶ 22.) In 2014, he
received a positive review and was promised a salary
increase, but never received that increase. (Id.
¶ 23.) He was also mistreated by Miskin following a
discussion about then-Pennsylvania Governor Tom Corbett.
(Id. ¶ 24.)
2016, Plaintiff received disciplinary counseling because of
several instances in which Plaintiff missed, was late to, or
left before the end of an assigned event. (Id.
¶ 27.) Plaintiff attempted to submit a response to the
disciplinary action but was not permitted to do so.
(Id.) In February 2018, following repeated requests
for a salary increase, Plaintiff received a negative
performance evaluation. (Id. ¶ 30.) A second
negative employee performance evaluation was signed by Dille
on April 16, 2018, which Plaintiff refused to sign.
(Id. ¶ 31.) On April 30, 2018, Plaintiff was
summoned to the Caucus's Human Resources Department at
which point his employment was terminated. (Id.
¶¶ 33-34.) Plaintiff alleges Defendants committed
post-employment retaliation including opposing his request
for unemployment compensation, and that he has been unable to
secure suitable employment. (Id. ¶¶ 37,
subsequently filed a charge with the Equal Employment
Opportunity Commission (“EEOC”) on August 9,
2018, and received a right to sue letter dated August 13,
2018. (Id. ¶¶ 44-45.) On November 9, 2018,
Plaintiff initiated this action via an eight-count complaint.
(Doc. 1.) Therein, Plaintiff sets forth the following claims:
discrimination on the basis of his race, color, religion,
age, and national origin in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000
(“Title VII”) (Count I); post-employment
retaliation in violation of Title VII (Count II); retaliation
for exercising his rights to free speech and religion in
violation of 42 U.S.C. § 1983 (“Section
1983”) (Count III); discrimination in violation of 42
U.S.C. § 1981 (“Section 1981”) (Count IV);
civil conspiracy (Count V); firing contrary to public policy
(Count VI); false light (Count VII); and negligent
supervision (Count VIII). Thereafter, Defendants filed a
motion to dismiss which has been fully briefed and is ripe
for disposition. (Docs. 5, 8, 9.)
seeks dismissal of Plaintiff's complaint under Rule
12(b)(1) for lack of subject matter jurisdiction and 12(b)(6)
for failure to state a claim upon which relief can be
granted. Under Rule 12(b)(1), the court must dismiss any
action over which it “lack[s] subject-matter
jurisdiction.” Fed.R.Civ.P. 12(b)(1). “Challenges
to subject matter jurisdiction under Rule 12(b)(1) may be
‘facial' or ‘factual.'” Lee v.
Reynolds, No. 13-cv-2604, 2014 WL 2195403, *1 (M.D. Pa.
May 27, 2014) (quoting Turicentro v. Am. Airlines,
303 F.3d 293, 300 n.4 (3d Cir. 2002)). “Where subject
matter jurisdiction ‘in fact' is challenged, the
trial court's very power to hear the case is at issue,
and the court is therefore ‘free to weigh the evidence
and satisfy itself as to the power to hear the case, ”
id. (quoting Mortensen v. First Fed. Sav. &
Loan Assoc., 549 F.2d 884, 891 (3d Cir. 1977)), and need
not accord a plaintiff's allegations with any presumption
of truth, Turicentro, 303 F.3d at 300 n.4.
motion to dismiss pursuant to Rule 12(b)(6), on the other
hand, tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a), which requires that a
complaint set forth “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). For a complaint to survive dismissal it
“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 (2009) (citing Bell Atl. v. Twombly, 550
U.S. 544, 570 (2007)). Thus, 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.” United States v.
Pennsylvania, 110 F.Supp.3d 544, 548 (M.D. Pa. 2015)
(quoting Fleisher v. Standard Ins. Co., 679 F.3d
116, 120 (3d Cir. 2012)); see also Fed. R. Civ. P.
raise the following arguments in support of dismissal of
Plaintiff's complaint: (1) discrimination based upon
alleged acts that occurred prior to October 13, 2017 are
time-barred; (2) Plaintiff failed to exhaust his
administrative remedies with respect to his post-employment
retaliation claims; (3) Plaintiff does not plead a cognizable
First Amendment retaliation claim; (4) Plaintiff cannot
maintain a Section 1981 claim against Defendants; and (5)
Plaintiff's Pennsylvania tort claims are barred by
sovereign immunity or, alternatively, improperly pled. The
court will address each argument in turn.
Exhaustion of administrative remedies
Defendants argue that Plaintiff failed to exhaust his
administrative remedies because his post-employment
retaliation claims are not within the scope of the August 9,
2018 EEOC charge. (Doc. 8, pp. 13-15 of 34.) Plaintiff rebuts
this by purportedly quoting from Stezzi v. Citizens Bank
of Pennsylvania, No. 10-4333, 2013 WL 1234178 (E.D. Pa.
Mar. 27, 2013.)
to filing a complaint, a plaintiff alleging discrimination
must exhaust his or her administrative remedies by filing a
charge with the EEOC. Williams v. E. Orange Cmty. Charter
Sch., 396 Fed.Appx. 895, 897 (3d Cir. 2010) (citations
omitted). The lawsuit is “limited to claims that are
within the scope of the initial administrative charge.”
Id. (citing Antol v. Perry, 82 F.3d 1291,
1296 (3d Cir. 1996)). EEOC charges are provided a
“fairly liberal construction, ” and “the
failure to check a particular box on an EEOC charge . . . is
not necessarily indicative of a failure to exhaust the
mandatory administrative remedies.” Lowenstein v.
Catholic Health E., 820 F.Supp.2d 639, 644 (E.D. Pa.
2011) (quoting Schouten v. CSXTransp.,
Inc., 58 F.Supp.2d 614, 616 (E.D. Pa. 1999)).
“[T]he purpose of the filing requirement is to enable
the EEOC to ...