HETZEL v. MAYBUS et al

Filing 24

MEMORANDUM AND ORDER granting in part and denying in part 20 Motion to Dismiss; For count 1, the sex discrimination claim may proceed under Title VII but not under the Rehabilitation Act; For count II, the hostile work environment claim may proce ed under Title VII but not under the Rehabilitation Act; For count III, the disability discrimination claim may proceed under the Rehabilitation Act, but not under Title VII; Dismissing any retaliation claim with prejudice. Signed by Judge Peter G. Sheridan on 8/2/2016. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JILL HETZEL,

Civil Action No.: 15-cv-7271 (PGS)(TJB)

Plaint fJ
V.

RAY MABUS, SECRETARY,
DEPARTMENT OF THE NAVY,

MEMORANDUM
AND
ORDER

Defendant.

SHERIDAN, District Judge.

Facts and Procedural History:

Plaintiff Jill Hetzel (“Hetzel” or “Plaintiff’) brings a discrimination action against
Defendant Ray Mabus, Secretary, Department of the Navy (“Defendant”). This is apartial
motion to dismiss the Third Amended Complaint (“TAC”). On April 14, 2016 the Court
dismissed the Second Amended Complaint (“SAC”) without prejudice. (ECF No. 15). The Court
noted that the opposition brief for the second motion to dismiss contained more detailed factual
allegations than the SAC, and commingled facts with non-pled facts. Plaintiff filed her TAC on
April 27, 2016 (ECF No. 16), and Defendant filed its motion to dismiss on May 25, 2016 (ECF
No. 20).

1

The TAC brings three counts. It is noteworthy that Plaintiff incorporates some facts in her
opposition brief that are not included in her TAC. Since this is the third opportunity, the Court will
only rely on the facts mentioned in the TAC.
Count one alleges sex discrimination in violation of the Rehabilitation Act of 1973, 29
U.S.C.

§

791 et seq., and Title VII, 42 U.S.C.

§ 2000e-16 and § 2000e-5.

Count two alleges

hostile work environment on account of sex in violation of the same statutes. Count three alleges
disability discrimination in violation of the same statutes. Defendant seeks dismissal of counts
one and two, and partial dismissal of count three.
The TAC states that Plaintiff was employed as a Child Youth Program Assistant. (TAC,

¶

22). Her pregnancy was confirmed on or about April 11, 2011. She developed complications with her
pregnancy, and placed on light duty in April 2011. (TAC,

¶ 2). In regard to the light duty, Plaintiffs

supervisor, Michele Caveat, then said, “come on Jill, are you serious?” (TAC,

¶ 6). Caveat, also

purportedly began making comments regarding the number of times Plaintiff used the restroom
during her pregnancy, and said “not to get pregnancy crazy.” (TAC,

¶ 24).

The TAC alleges that Plaintiff was sent to a pre-toddler room when the infant room closed
down, and that Hetzel was told she could not return to the infant room when it was reopened. (TAC,

¶ 25). According to the TAC, Plaintiff was informed that her employer was not putting any more
pregnant women in the infant room, which appeared to be a new policy. (TAC, ¶26). Plaintiff alleges
that Defendants began a pattern of retaliation against her after she raised concerns about not being
able to go to the infant room. (TAC,

¶ 27). The TAC also claims that Plaintiffs co-workers and

supervisors falsely stated that she was engaging in inappropriate workplace behavior. (TAC,

¶ 28).

The TAC further alleges that an incident occurred after Plaintiffs pregnancy, where a child
was injured in her room, and Plaintiff was criticized for this by her co-workers and supervisors, even

2

though another co-worker had assisted. (TAC,

¶ 29). Hetzel was then terminated, and Plaintiff claims

that this was because she was a woman, pregnant and had a disability. (TAC,

¶ 30).

On or about January 16, 2012, Hetzel filed an Equal Opportunity complaint. (See
Declaration of Deputy EEO Officer Mary Baicher (“Baicher Deci.”), ECF No. 20-3,

¶ 3).

She

indicated that she was alleging discrimination on the basis of disability, and wrote “pregnancy”
next to the box. (Balcher Decl,

¶ 4; TAC., ¶ 5).

On April 13, 2012, the EEO office at Naval

Submarine Base New London issued a notice to Plaintiff that it was accepting for investigation
the claim that she was “discriminated against based on Physical Disability (Pregnancy) when
terminated on 15 September 2011

,“

gave plaintiff an opportunity to correct any misidentified

claims within 7 days, and informed her that the complaint was limited to the claims discussed
with the EEO Specialist. (Balcher Decl, Ex. B.). On November 7, 2012, an Investigations and
Resolutions Division (“IRD”) investigator took a statement from PlaintifL (Balcher Decl., ¶ 6).
On December 8, 2015, the Navy issued a Final Agency Decision finding no evidence of
discrimination based upon her physical disability due to her pregnancy, and that Plaintiff had
failed to establish the threshold requirement that she was a “person with a disability” because she
did not provide evidence that she had a “physical or mental impairment which substantially
limits one or more of her major life activities...” (Balcher Decl,

¶

11, Ex. H). Plaintiff brought

this lawsuit on October 1, 2015. (ECF No. 1).

Legal Standard:
Motion to Dismiss
On a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6),
the Court is required to accept as true all allegations in the Complaint and all reasonable
inferences that can be drawn therefrom, and to view them in the light most favorable to the
3

non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d
Cir. 1994). “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 (2009) (quoting Bell Ati. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007)). While a court will accept well-pleaded allegations as true for the
purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted
inferences, or sweeping legal conclusions cast in the form of factual allegations. Iqbal, 556 U.S.
at 678-79; see also Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997).
The question is whether the claimant can prove any set of facts consistent with his or her
allegations that will entitle him or her to relief, not whether that person will ultimately prevail.
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000), cert. denied, Forbes v.
Semerenko. 531 U.S. 1149, 121 S.Ct. 1091 (2001).
Analysis:

As a preliminary matter, Plaintiff is not opposing Defendant’s motion to dismiss the
portions of Count I and II asserting a cause of action for sex discrimination or hostile work
environment under the Rehabilitation Act, acknowledging that the Rehabilitation Act provides
the exclusive remedy for employment discrimination based on disability. Plaintiff is also not
opposing Defendant’s motion to dismiss Count III, to the extent it alleges a claim for disability
discrimination under Title VII. These claims are all dismissed. Finally, Defendant does not
object to Plaintiff bringing a cause of action for disability discrimination pursuant to the
Rehabilitation Act. This claim may proceed in Count III.
I.

Failure to Exhaust

4

Defendant’s first argument is that Plaintiff failed to timely exhaust her claims for sex
discrimination, hostile work environment, and retaliation. “Failure to timely exhaust
administrative remedies is an appropriate basis for granting a Rule 12(b)(6) motion to dismiss.”
Smith v. Palhnan, 420 Fed. Appx. 208, 212 (3d Cir. 2011). The employee must first contact an
EEO counselor within 45 days of the alleged discriminatory act, and then file a formal
administrative complaint within 15 days of receiving a notice of right to sue letter, and then
either appeal the agency’s final decision to the EEOC or file a civil action in federal district court
within 90 days of receiving the decision. See 29 C.F.R.

§

1614.105-1614.109, 1614.491,

1614.407(a), Green v. Postmaster Gen., 437 Fed. Appx. 174, 177 (3d Cir. 2011).
Here, Plaintiff first contacted the EEO counselor on October 3, 2011, had a final
interview with the counselor on December 29, 2011, and filed a formal EEO complaint on
January 16, 2012. (See Belcher Decl., Ex. A). Plaintiff only marked one box on the EEO
complaint form (“DISABILITY”), and next to it she wrote, “Physical, Pregnancy,” even though
there were boxes to check for “SEX” discrimination and “REPRISAL.” (Id. On November 7,
2012, Plaintiff provided a declaration stating that her “claim is based on having a disabling
impairment.” (Balcher Decl., Ex. D at 3). When describing her impairment she said, “I was
pregnant.” (Id). The Pregnancy Discrimination Act of 1978 amended Title VII to prohibit sex
discrimination on the basis of pregnancy. See 42 U.S.C.

§

2000e(k) (“the terms ‘because of sex’

or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions.”).
If discrimination is not alleged by an employee in an EEO complaint, then the employer
does not have to investigate it, unless such discrimination can “reasonably be expected to grow
out of the charge” of the original claim. Ostapowicz v. Johson Bronze Co., 541 F.2d 394, 398-

5

399 (3d Cir. 1976); see also Mellon v. United States Social Sec. Admin., 2011 WL 3652513, at
*4..6 (E.D. Pa. Aug. 18, 2011) (dismissing race and gender discrimination claim for failure to
exhaust where plaintiff only checked “Retaliation/Reprisal” box on her EEO Compliant).
Defendant asserts that Plaintiffs sex discrimination, hostile work environment on account of her
sex. and retaliation claims could not be reasonably expected to grow out of her disability
discrimination claim. See Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997) (“the purposes
of the exhaustion requirement are to promote administrative efficiency, ‘respect executive
autonomy by allowing an agency the opportunity to correct its own errors,’ provide courts with
the benefit of an agency’s expertise, and serve judicial economy by having an administrative
agency compile the factual record.”).
In response, Plaintiff says that she clearly indicated on her EEO complaint that her
discrimination was based on “Pregnancy.” In the TAC, Plaintiff added that she was pro se when
filing the EEOC complaint. Defendant, however, disputes this assertion in that Plaintiff retained
counsel during the pendency of her EEOC matter in April 2014. (Balcher Decl.,

¶ 8, Ex. F).

Plaintiff and her attorney had until October 6, 2015, the date she received her Final Agency
decision, to amend her complaint. See 29 CFR

16 14.106(d) (“a complainant may amend a

§

complaint at any time prior to the conclusion of the investigation to include issues or claims like
or related to those raised in the complaint.”)
Nevertheless, the Court agrees with Plaintiff that it is clear from her complaint that she
intended to bring claims on sex discrimination, even if she checked the wrong box. When asked
about her disability, Plaintiff said that she was pregnant. Defendant was on ample notice that her
sex discrimination claims could reasonably be expected to grow out of her disability
discrimination claim. The main purpose of filing an EEOC complaint is to notify the agency of

6

the program so that they can investigate. See Anjelino v. New York Times, 200 F.3d 73, 94 (3d
Cir. 1999). Also, “In determining the content of the original complaint for purposes of applying
this regulation, we keep in mind that charges are most often drafted by one who is not well
versed in the art of legal description. Accordingly, the scope of the original charge should be
liberally construed.” Hicks v. ABTAssoc,, Inc., 572 F.2d 960, 965 (3d Cir. 1978).
The Court will not dismiss the sex discrimination and hostile work environment on
account of sex claims on failure to exhaust grounds.
II.

Failure to State a Claim

Alternatively, Defendant asserts that Plaintiffs hostile work environment claim fails to
state a claim. “In order to state a claim under Title VII for discrimination resulting from a hostile
work environment, an employee must show that ‘(1) the employee suffered intentional
discrimination because of [her] sex, (2) the discrimination was pervasive and regular, (3) the
discrimination detrimentally affected the [employee], (4) the discrimination would detrimentally
affect a reasonable person of the same sex in that position, and (5) the existence of respondeat
superior liability.” Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007) (internal quotations
omitted). “Not every sexual comment, action or joke creates a hostile work environment.”
Brown-Baunthach v. B&BAuto, Inc., 437 Fed. Appx. 129, 133 (3d Cir. 2011). Instead, the
actions must be “sufficiently severe or pervasive ‘to alter the conditions of [the plaintiffs]
employment and create an abusive working environment.’ Mandel v. M&Q Packaging Corp.,
“

706 F.3d 157, 167 (3d Cir. 2013) (quoting Mentor Say. Bank, FSB v. Vinson, 477 U.S. 57,67
(1986)). Courts apply the totality of the circumstances test, which involves analyzing “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or

7

humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Mandel, 706 F.3d at 168.
Plaintiff states that her co-workers and supervisors “began stating that she was engaging
in inappropriate workplace behavior,” (TAC

¶ 28), that she was criticized for using the bathroom

too often, that she was blamed when a child was injured, and after her pregnancy was confirmed,
her supervisor told her “not to get pregnancy crazy.” (SAC ¶ 24). The behavior toward Plaintiff
appears to have changed once Hetzel announced her pregnancy and the associated complications,
to the point where it could have unreasonably interfered with her work performance. At the
motion to dismiss stage, Plaintiff makes out a plausible claim for hostile work environment.
III.

Retaliation
Finally, Plaintiff does not specifically plead “retaliation” as a count in the TAC, but

makes reference to it in the TAC. To state a claim for retaliation, a plaintiff must establish that:
“(1) the plaintiff engaged in protected activity; (2) the employer took a materially adverse action
against the plaintiff; and (3) there exists a causal connection between the adverse action and the
protected activity.” Lanza v. Postmaster Gen. of US., 570 F. App’x 236, 240 (3d Cir. 2014)
(citing LeBoon v. Lancaster Jewish Crnty. Ctr. Ass’n, 503 F.3d 217, 23 1—32 (3d Cir. 2007)). A
plaintiff asserting a retaliation claim must allege that she made a complaint “implicat[ing] an
employment practice made illegal by Title VII.” Id. at 203; see also Spangler v. City of
Philadelphia, 523 F. App’x 142, 146 (3d Cir. 2013).
Defendant notes that the only instance Plaintiff identifies as a protected activity was
“raising concerns about not being able to go to the infant room.” (TAC,

¶ 27).

Therefore, there

are no allegations that Plaintiff engaged in a protected activity, or can show a causal connection
between the protected activity and adverse action. Plaintiff has not responded to this in her

8

opposition. The Court finds that is not clear what her protected activity was, nor is it clear that
there is a causal connection between that activity and the adverse action. Any retaliation claim is
dismissed.

ORDER
This matter having come before the Court on a Partial Motion to Dismiss the Third
Amended Complaint by Defendant [ECF No. 20]; and the Court having considered the
submissions of the parties, having heard oral argument on July 18, 2016, for the reasons set forth
on the record, for the reasons stated herein, and for good cause shown,
It is, on this

day of August, 2016, hereby

ORDERED that the Motion to Dismiss [ECF No. 20] is GRANTED IN PART and
DENIED IN PART as follows:
For count 1, the sex discrimination claim may proceed under Title VII but not under the
Rehabilitation Act,
For count II, the hostile work environment claim may proceed under Title VII but not
under the Rehabilitation Act,
For count III, the disability discrimination claim may proceed under the Rehabilitation
Act, but not under Title VII.
Any retaliation claim is dismissed with prejudice.

PETER G. SHERIDAN, U.S.D.J.

9