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Smith v. Harrison House

United States District Court, E.D. Pennsylvania

January 13, 2020

DEON SMITH, Plaintiff,



         Plaintiff Deon Smith alleges that her former employer, Harrison Senior Living of Christiana, discriminated against her on the basis of sex, national origin, and disability, and retaliated against her for reporting such discrimination, in violation of state and federal law. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981; 42 U.S.C. § 12101; 43 Pa. Stat. § 951. Defendant moves to dismiss Count I (Title VII Retaliation), Count II (Pennsylvania Human Relations Act (PHRA) Discrimination), Count III (PHRA Retaliation), and Count V (Americans with Disabilities Act (ADA) Retaliation).[1]

         I.FACTS [2]

         Plaintiff, an African American woman born in Jamaica, was hired to work for Defendant as a certified nursing assistant in December 2015. Plaintiff walks with a noticeable limp. She began experiencing harassment from her coworkers at the start of 2017. Coworkers made disparaging remarks about her race, national origin, and disability. For example, a coworker told her, “you really need to take the boat and go back to Jamaica where you belong.” Coworkers would describe Plaintiff, within her earshot, as “hopping around like a bunny” and imitate her limp. She was once told that her and her hair are “just too black.” And after Plaintiff reported the incidents, her coworkers froze her out, ignoring her at work and pushing her out of the line to clock in each morning. Despite reporting the concerns to multiple persons within the organization, including the staffing coordinator, the assistant director of nursing, and the shift supervisor, nothing was done about the harassment. Plaintiff quit her job in October 2018, feeling unable to tolerate the harassment any longer.

         Plaintiff filed a discrimination charge with the EEOC, checking off the boxes on the form indicating race, disability, and national origin discrimination. She cited some of the instances described above. On September 11, 2018, she received a letter denying her claim and giving her the right to sue in court if she chose. Plaintiff attempted to appeal the decision but was notified via letter from the EEOC in November that no formal appeals process exists within the Commission. If she wished to challenge the decision, the letter reminded her, she had to file in court within 90 days of the denial. Plaintiff did not file a lawsuit at that time. Instead, she later filed a second EEOC charge. In her second charge, she checked the boxes for race and disability discrimination, as well as retaliation. Plaintiff alleged in the charge, but not her complaint,[3] that following her report of discrimination to human resources in August 2018, she suffered retaliation in the form of her employer engaging in extensive, threatening surveillance on her. Plaintiff's claim was denied on December 20, 2018. Plaintiff then filed this suit.


         A motion to dismiss is decided in two steps. First, factual and legal claims must be separated. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). All well-pleaded facts are accepted as true, and any bare legal conclusions are disregarded. Id. the next determination is whether the “facts alleged in the complaint” are sufficient to show a “plausible claim for relief.” Id. (internal quotation omitted).

         III. ANALYSIS

         A. Plaintiff's retaliation claims

         Defendant first argues that all of Plaintiff's retaliation claims (Counts I, III, and V) must be dismissed on the grounds that either they are barred because the suit was filed more than 90 days after the first EEOC charge or they were not properly exhausted. Once a plaintiff receives final agency action from the EEOC, she must file her suit within 90 days or else the right to sue expires. 42 U.S.C. § 2000e-5(f)(1). This deadline is interpreted strictly; a claim filed “even one day beyond this ninety day window is untimely.” Figueroa v. Buccaneer Hotel, Inc., 188 F.3d 172, 176 (3d Cir. 1999).

         Plaintiff's first right-to-sue letter was issued in September 2018. She did not file this suit until March 2019, well beyond the 90 day window. While the 90 day window can be subject to equitable tolling, Plaintiff makes no cogent argument in her complaint.[4] See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). Any federal[5] claims arising from the allegations in the first charge are thus time barred and cannot serve as the basis for the present suit. See also Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986) (per curiam) (holding that a plaintiff who filed a second EEOC charge on the same facts as her first denied one could not revive the expired claim through the later charge).

         Plaintiff's second EEOC charge, however, raised a new claim for relief. She alleges that, after reporting race and disability discrimination to Defendant's human resources office on August 21, 2018, she suffered severe retaliation that ultimately forced her to leave her job. Plaintiff specifically alleges that Defendant began an aggressive surveillance campaign against her, including following her during her commute to and from work and calling the state troopers to pull her over. The EEOC denied her claim on December 20, 2018. Plaintiff timely filed this suit based off the second charge within the 90 day period. See Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 71-72 (1st Cir. 2001) (holding that plaintiff had properly exhausted administrative remedies regarding her retaliation claim by filing a second EEOC charge based on events that occurred after the filing of plaintiff's first EEOC charge).

         But that does not end the inquiry. Plaintiff's current retaliation claim must fall fairly within the scope of her second EEOC charge, retaliation for her August 21, 2018 report. See Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). Plaintiff's complaint alleges that Defendant retaliated against her for reporting discrimination by turning her workplace into a hostile work environment. All alleged instances of a retaliatory hostile work environment she cites in the complaint occurred before August 21, 2018. In fact, the complaint does not even list the August 21, 2018 report-the latest incident described occurred on or about August 4, 2018. All incidents described in the complaint fall within the scope of the first EEOC charge. While the earlier incidents certainly may provide context for her later report, those incidents are not within the scope of the second EEOC charge, and the second EEOC charge is the only live basis for this case. The facts alleged in the complaint therefore fail to state a plausible ground for relief on her claim that she was retaliated against under Title VII, the PHRA, and the ADA for a report made on August 21, 2018. Fowler, 578 F.3d at 210-11. With no retaliation claim within the scope of the second EEOC charge or facts to support it alleged in the complaint, the motion to dismiss will be granted for Counts I, III, and V.

         B. ...

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