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Bhatti v. Republican Caucus of Pennsylvania House of Representatives

United States District Court, M.D. Pennsylvania

October 1, 2019

KALIM A. BHATTI, Plaintiff,


          Sylvia H. Rambo Judge

         Presently 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.

         I. Background

         The 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.)

         Plaintiff 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.)

         In 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, 43, 62-63.)

         Plaintiff 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.)

         II. Legal Standard

         Defendant 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.

         A 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. 12(b)(6).

         III. Discussion

         Defendants 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;[1] (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.

         A. 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.)[2]

         Prior 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 ...

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