JONES v. SEPTA et al

Filing 12

MEMORANDUM AND/OR OPINION RE: DEFENDANTS MOTION TO DISMISS (DOC. NO.9). SIGNED BY HONORABLE WILLIAM H. YOHN, JR ON 5/9/2013. 5/10/2013 ENTERED AND COPIES E-MAILED.(kk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHELLE PRECIA JONES,
Plaintiff,
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY et al.
Defendants.

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CIVIL ACTION
NO. 12-6582

MEMORANDUM
YOHN, J.

May 9, 2013

Plaintiff, Michelle Precia Jones, brings this employment discrimination action against
defendants, the Southeastern Pennsylvania Transportation Authority (“SEPTA”) and Alfred
Outlaw, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”); the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 951 et seq.
(“PHRA”); 42 U.S.C. § 1983; and the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.
(“FMLA”). She also asserts a claim of common law wrongful termination. Before me is
defendants’ motion to dismiss counts two, three, four, and six of Jones’s amended complaint for
failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set
forth below, I will grant defendants’ motion in part and deny it in part.
I.

Factual and Procedural Background
The relevant facts are as follows. Jones, a female, began her employment with SEPTA in

May 1988 as a secretary in SEPTA’s planning and construction department. (Am. Compl. ¶ 9.)
After a brief hiatus in 2000, she returned to work at SEPTA in 2001 as an administrative

assistant in its revenue operations department. (Id. ¶ 10.) Outlaw, as director of revenue
operations, was her supervisor. (Id.) Jones alleges that Outlaw subjected her to continual
harassment beginning in 2001 and lasting until August 2010. (Id. ¶ 11.) She claims that he would
constantly ask her about her deceased husband, despite “knowing it was still an emotional subject
for Plaintiff.” (Id. ¶ 13.) He made “numerous unwelcome sexual comments” to her and “asked
Plaintiff to do for him what Plaintiff felt were sexual in nature [sic].” (Id. ¶ 23.) In July 2010,
while Jones was looking at vacation pictures at her desk, Outlaw stopped to look. He made a
comment “about Plaintiff’s breast [sic],” stating that he was unaware that Jones was so “well
endowed.” (Id. ¶ 24.) Between 2001 and August 2010, whenever Jones would walk out of
Outlaw’s office, he would say “hmm, hmm, hmm...”; plaintiff asserts that this was a reference to
her buttocks. (Id. ¶ 25.) Jones alleges that she “opposed Outlaw’s sexual comments” by
informing him that such comments were inappropriate and that he should stop. (Id. ¶¶ 24-25.)
Jones states that Outlaw would stand in front of her desk and look down her blouse,
“starring [sic] at her breast [sic] and making faces.” (Id. ¶ 26.) During a staff meeting in the
summer of 2010, Outlaw stated that he wanted the females to wear skirts to work in order to
show off their legs. (Id. ¶ 28.) In July 2010, “Outlaw asked Plaintiff to come into his office, told
her that he saw on the Jefferson’s show [sic], a scene where Florence was walking on George’s
back, and asked Plaintiff to . . . walk on his back.” (Id. ¶ 29.)
Outlaw regularly assigned Jones work related to his personal business; this gradually
became the majority of work he assigned to her. (Id. ¶¶ 31-32.) In the fall of 2009, Outlaw asked
Jones to cut and paste another employee’s signature on a performance evaluation because that
employee was not available to sign it. Jones refused to do so. (Id. ¶ 33.)
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Plaintiff alleges that she was not the only female targeted for harassment. Of the five
other employees reporting to Outlaw, one was female—Victoria Watts Trontman—and four were
male. Plaintiff asserts that Outlaw “consistently treated his male direct reports more favorable
than the female [sic].” (Id. ¶¶ 14-15.) Outlaw would give the males “comp time” in
contravention of SEPTA’s compensation policy. (Id. ¶¶ 16-20.) On one occasion in August 2007,
Outlaw allegedly harassed Trontman about pumping breast milk in a private room; in April 2006,
he called Trontman at home and asked if she was breast feeding. (Id. ¶ 27.)
In August 2010, Jones took FMLA leave due to a sciatic nerve injury. She returned to
work on November 17, 2010. (Id. ¶ 35.) On December 1, 2010, Outlaw called Jones into his
office and accused her of forging his signature on time sheets. Jones denied the charge, but
Outlaw suspended her from work that same day. (Id. ¶ 37.) On December 2, Jones called
SEPTA’s EEO/AA Department to complain about the sexual harassment she had faced. She also
asserted that the suspension was retaliation for her refusing to do work for Outlaw’s personal
business and for her opposing his sexual comments. (Id. ¶ 38.) She submitted her discrimination
and retaliation complaint on December 7, 2010; she has not since heard from SEPTA about the
status of her complaint. (Id. ¶ 40-43.) SEPTA discharged her on February 22, 2011. (Id. ¶ 44.)
Jones initiated this lawsuit on November 23, 2012, and filed an amended complaint on
April 1, 2013. Defendants move to dismiss counts two, three, four and six of the amended
complaint under Rule 12(b)(6). These counts comprise Jones’s “Title Violations [sic]” claim
against SEPTA (presumably, her Title VII retaliation claim); her PHRA discrimination and
retaliation claims against SEPTA and Outlaw; and her common law wrongful termination claim

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against SEPTA.1
II.

Discussion
A.

Legal Standard

In deciding a motion to dismiss under Rule 12(b)(6), courts 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.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
marks and citation omitted). But “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must
contain sufficient factual matter to be plausible on its face. Id. “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 alleged”; a sheer possibility that a defendant acted
unlawfully is not sufficient. Id.
Thus, the Third Circuit has developed a three-step approach. “First, the court must take
note of the elements a plaintiff must plead to state a claim. Second, the court should identify
allegations that, because they are no more than conclusions, are not entitled to the assumption of
truth. Finally, where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for relief.”
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal quotation marks and

1

The extensive quotes from the amended complaint show that plaintiff’s counsel might
benefit from having his submissions proofread more thoroughly.
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citations omitted).
B.

Application

Defendants argue that (1) the retaliation claims under Title VII and the PHRA (Counts 2
and 4) must be dismissed because Jones has not adequately alleged a causal connection between
her engaging in protected activity and the adverse employment action (her suspension and
discharge); (2) the PHRA discrimination claim (Count 3) are time-barred; (3) Jones has not
alleged sufficient facts to support Outlaw’s individual aider-and-abettor liability under the PHRA
(Counts 3 and 4); and (4) Jones cannot pursue a common law wrongful termination claim
because she is not an at will employee (Count 6). I address these arguments in turn.2
1.

Title VII and PHRA Retaliation Claims

To state a claim of retaliation under Title VII or the PHRA, a plaintiff must allege that
she engaged in activity protected by the relevant statute; the employer took an adverse
employment action against her; and there was a causal connection between her participation in
the protected activity and the adverse employment action. See Wadhwa v. Sec’y, Dep’t of
Veterans Affairs, No. 12-2723, 2012 WL 5974233, at *2 (3d Cir. Nov. 30, 2012) (Title VII);
Slagle v. Cnty. of Clarion, 435 F.3d 262, 265 n. 5 (3d Cir. 2006) (PHRA). Defendants argue that,

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I decline to consider the “Notice of Charges/Reasons for Imminent Discharge” that
defendants have attached to their motion to dismiss. (Mot. to Dismiss Ex. B.) I do not believe
that it was integral to the complaint such that I can consider its contents without converting the
instant motion to one for summary judgment. See In re Rockefeller Ctr. Props., Inc. Sec. Litig.,
184 F.3d 280, 287 (3d Cir. 1999). Defendants have not asked for summary judgment as an
alternative to dismissal. While the letter is powerful evidence that Jones was fired for forging
time sheets and stealing from SEPTA, and not for reasons prohibited by Title VII and the PHRA,
the letter does not change my analysis of whether Jones has at least adequately pleaded her
discrimination and retaliation claims. Plaintiff herself, however, may want to question whether
she desires to pursue litigation that will inevitably bring these allegations into public view.
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as a matter of law, the adverse action must occur after plaintiff’s participation in the protected
activity. They cite a number of cases in support, but all the cited cases involved summary
judgment. See Warfield v. Se. Penn. Transp. Auth., 460 F. App’x 127, 131-32 (3d Cir. 2012);
Jordan v. Se. Penn. Transp. Auth., No. 10-3470, 2012 WL 4815414, at *14 (E.D. Pa. Oct. 10,
2012); Mihalko v. Potter, No. 00-2076, 2003 WL 23319594, at *14 (W.D. Pa. Dec. 12, 2003),
report and recommendation adopted, Jan. 6, 2004; Rand v. Mannesmann Rexroth Corp., No.,
2002 WL 550396, at *8 (E.D. Pa. Apr. 15, 2002); Osuala v. Cmty. Coll. of Phila., No. 00-98,
2000 WL 1146623, at *9 (E.D. Pa. Aug. 15, 2000). Nevertheless, defendants’ argument makes
sense as a logical matter: if the adverse action truly and fully precedes the protected activity, a
plaintiff’s claim that the protected conduct caused the adverse action loses all “facial
plausibility.”
But defendants’ argument does not apply to the allegations in this case. Defendants
overlook that Jones has alleged that she engaged in protected activity prior to her December 1,
2010 suspension and her eventual discharge. Jones states that she repeatedly told Outlaw that his
behavior was inappropriate in the time period between 2001 and August 2010. (Am. Compl.
¶¶ 24-25.) Protected activity encompasses “informal protests of discriminatory employment
practices, including making complaints to management, writing critical letters to customers,
protesting against discrimination by industry or society in general, and expressing support of
co-workers who have filed formal charges.” Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d
Cir. 1995) (quoting Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)).
Plaintiff points to a recent case from the Fourth Circuit indicating that even complaints to the
discriminating supervisor (here, Outlaw) can constitute protected activity. See Harris v. Home
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Sales Co., 499 F. App’x 285, 293 (4th Cir. 2012) (where plaintiff “claim[ed] that he protested . . .
[supervisor’s] racist remark when speaking with [supervisor] on the phone” he had “shown that
he engaged in protected activity”).
Because Jones has alleged that she engaged in protected activity before the alleged
adverse action, defendants’ argument for dismissal fails.
2.

Timeliness of PHRA Discrimination Claim

Litigants are required to exhaust their PHRA claims before the Pennsylvania Human
Relations Commission (“PHRC”) before coming to court. See Kelly v. United States Steel Corp.,
No. 11-193, 2011 WL 3607458, at *2 (W.D. Pa. Aug. 16, 2011) (citing Clay v. Advanced
Computer Applications, Inc., 559 A.2d 917, 920 (Pa. 1988)). One must file a charge of
discrimination with the PHRC within 180 days of the alleged discriminatory act. Id. (citing 43
Pa. Stat. Ann. § 962(h)). Jones filed her charge with the PHRC on March 22, 2011. (Defs.’ Mot.
Dismiss Ex. C.) Therefore, she must point to some discriminatory act that occurred less than 180
days prior—that is, some act that occurred after September 23, 2010.
Defendants argue that because the amended complaint only alleges instances of
discrimination between 2001 and August 2010, the PHRA discrimination claim (count three)
must be dismissed. Jones counters that she has alleged discriminatory acts within the applicable
time period. She points to Outlaw’s “false accusations” on December 1, 2010, and her
suspension that same day, as examples of gender discrimination. (Pl.’s Mem. Law Opp’n Mot.
Dismiss 16.) She adds her February 22, 2011 termination as another instance. (Id. 17.) Jones
explains that, in taking these actions, SEPTA and Outlaw were treating her more harshly than
they treated male employees. (See id. 16; Am. Compl. ¶ 55.)
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I note that there is no bar to using the same alleged acts to support a discrimination and
retaliation claim, as Jones does here. Cf. Finizie v. Peake, 548 F. Supp. 2d 171, 179-80 (E.D. Pa.
2008) (“With regard to the job posting in 2002 . . . [i]t is clear that [plaintiff] can make out a
prima facie case of both retaliation and gender discrimination.”). Construing the complaint in the
light most favorable to plaintiff, I find that she has alleged discriminatory acts within the relevant
time frame. Therefore, defendants’ motion to dismiss count three will be denied.3
3.

Individual Liability under the PHRA

Defendants concede that the PHRA allows for individual liability where “a supervisory
employee aided and abetted unlawful discriminatory practices of the employer.” (Br. Supp. Mtn.
Dismiss 9 (citing 43 Pa. Cons. Stat. § 955(e)). They argue, however, that the amended complaint
is devoid of facts to support Jones’s assertion of individual liability: while the complaint alleges
that Outlaw sexually harassed plaintiff, it does not “detail any actions . . . to aid or abet any
alleged unlawful discriminatory practices of SEPTA.” (See id. (emphases added).)
The argument that a supervisor does not aid or abet an employer’s discrimination through
his own discriminatory acts has been squarely rejected. Glickstein v. Neshaminy School District,
No. 96–6236, 1997 WL 660636, *11–13 (E.D. Pa. Oct. 22, 1997), held that supervisors can be
held liable under section 955(e) for their own direct acts of discrimination. “[U]nder agency
principles, a supervisory employee who engages in discriminatory conduct while acting in the
scope of his employment shares the intent and purpose of the employer and may be held liable

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Defendants have not addressed whether Jones is precluded from relying on any
purported violations that occurred before September 22, 2010, as part of her discrimination
claim; thus, I only address their argument that the entire PHRA discrimination claim must be
dismissed.
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for aiding and abetting the employer in its unlawful conduct.” Id. at 12.
Defendants’ reliance on Cohen v. Temple Physicians, Inc., 11 F. Supp. 2d 733 (E.D. Pa.
1998), is misplaced. It appears that the plaintiff in Cohen failed to allege that the individual
supervisors actually committed any “direct acts of discrimination.” See id. at 737. Here, Outlaw
(according to the amended complaint) has sexually harassed plaintiff. Per Glickstein, Outlaw may
be held individually liable under the PHRA.
4.

Common Law Wrongful Termination

In Geary v. United States Steel Corp., 319 A.2d 174 (Pa. 1974), the Pennsylvania
Supreme Court implied that “an employee at will can maintain a wrongful discharge action
where a clear mandate of public policy has been violated by the termination.” Phillips v. Babcock
& Wilcox, 503 A.2d 36, 37 (Pa. Super. Ct. 1986). But case law makes clear that this publicpolicy-based wrongful termination claim extends only to at-will employees. See Ross v. Montour
R. Co., 516 A.2d 29, 32 (Pa. Super. Ct. 1986) (“[T]he tort of wrongful discharge is available only
when the employment relationship is at-will.” (quoting Phillips, 503 A.2d at 38)); Engstrom v.
John Nuveen & Co., Inc., 668 F.Supp. 953, 959 (E.D. Pa. 1987) (“Pennsylvania recognizes a
cause of action for wrongful discharge only when the employment is at-will because terminated
employees who are not at-will employees may pursue their claims under breach of contract
theories.”). In Marchionni v. Southeastern Pennsylvania Transportation Authority, the court
pointed out that SEPTA employees are “just cause” employees under SEPTA’s enabling statute;
therefore, they cannot sue for the tort of wrongful discharge.4 Marchionni v. Se. Penn. Transp.
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Plaintiff argues that “SEPTA relies on decisions where the Court dismissed common
law wrongful actions [sic] by SEPTA’s union employees that are subject to a Collective
Bargaining Agreement that expressly states that such common law claims can only be asserted
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Auth., No. 98-6491, 2000 WL 124564, at *2-3 (E.D. Pa. Feb. 2, 2000) (citing 74 Pa. Cons. Stat.
§ 1724(a)(3)). Thus, count six of the amended complaint will be dismissed.
IV.

Conclusion
For the reasons set forth above, I will grant defendants’ motion with respect to the

wrongful termination claim. Because I find that amendment would be futile—Jones, by law, is a
“just cause” employee—I will dismiss the claim with prejudice. See Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 245 (3d Cir. 2008) (“[I]f a complaint is subject to a Rule 12(b)(6)
dismissal, a district court must permit a curative amendment unless such an amendment would be
inequitable or futile.”) The balance of defendants’ motion is denied. An appropriate order
follows.

through a binding arbitration between SEPTA and the Union.” (Pl.’s Mem. Law Opp’n Mot.
Dismiss 19.) The court’s decision in Marchionni did not turn on the existence of a collective
bargaining agreement. In fact, the opinion never once mentions such an agreement. Thus, when
plaintiff’s counsel asserts that “SEPTA has not cited any authority that holds that Plaintiff cannot
assert a civil action under common law wrongful termination claim [sic] that she was terminated
by SEPTA without just cause,” (Id.), he is simply mistaken.
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