LAI v. RADNOR TOWNSHIP POLICE DEPT. et al

Filing 27

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 7/11/16. 7/12/16 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF, E-MAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NICK A. LAI,
Plaintiff,

CIVIL ACTION
NO. 15-2451

v.
RADNOR TOWNSHIP POLICE DEPT., et
al.,
Defendants.
OPINION
Slomsky, J.
I.

July 11, 2016

INTRODUCTION
Plaintiff Nick A. Lai, proceeding pro se, brings this suit against Defendants Radnor

Township Police Department, Superintendent of Police William Colarulo, Lieutenant Andrew
Block, Sergeant Mark Stiansen, Officer Steven Bannar, Officer Patrick Lacey, and Sergeant
Joseph Maguire (collectively, “Defendants”) for alleged violations of Title VII of the Civil
Rights Act of 1964 (“Title VII”) and the National Labor Relations Act of 1935 (“NLRA”). 1
In Count I of the Third Amended Complaint (“TAC”), Plaintiff alleges that Defendants
discriminated against him based on his race and national origin in violation of Title VII. In
Count II, Plaintiff alleges that Defendants created a hostile work environment also in violation of
Title VII. In Count III, Plaintiff asserts unfair labor practices in violation of the NLRA. Finally,
in Count IV, Plaintiff alleges that Defendants retaliated against him based on his race and

1

Title VII is codified at 42 U.S.C. § 2000e, et seq., and the NLRA is codified at 29 U.S.C. § 158,
et seq.

national origin in violation of Title VII. (Doc. No. 22.) Defendants have filed a Motion to
Dismiss the TAC in its entirety. (Doc. No. 24.) The Motion is now ripe for disposition. 2
II.

BACKGROUND 3
In May 2013, the Radnor Township Police Department (“Radnor PD”) hired Plaintiff, a

man of Asian descent, as a Probationary Police Officer. (Doc. No. 22 ¶¶ 16-17.) Plaintiff had
previously worked for the Philadelphia Police Department for approximately eighteen years. (Id.
¶ 30.) During Plaintiff’s tenure at the Philadelphia Police Department, he received only positive
evaluations and was not the subject of any disciplinary action. (Id. ¶ 35.) After Radnor PD hired
Plaintiff, he was assigned to train with Officer Bannar and Sergeant Stiansen. (Id. ¶ 17.)
Shortly after Plaintiff was hired, he witnessed Sergeant Stiansen and other Radnor Police
Officers engaging in what Plaintiff refers to as “racial profiling.” (Id. ¶ 18.) Subsequently, while
on patrol with Officer Bannar, Plaintiff reported the racial profiling to Officer Bannar. (Id.)
Officer Bannar ignored Plaintiff’s concern. (Id. ¶ 20.) One week later, Plaintiff and Officer
Bannar were dispatched to assist a person with a locked vehicle. (Id. at ¶ 22.) Both Plaintiff and
Officer Bannar noticed several pill bottles inside the person’s car with no prescription labels.
(Id.) The pills were confiscated, but no property receipt was prepared, and the driver of the
vehicle, who was Caucasian, was released without arrest. (Id. ¶¶ 22-23.) Plaintiff expressed
concern about the improper handling of narcotics, but Officer Bannar ignored his concern. (Id. ¶
23.) According to Plaintiff, his concerns were ignored by Officer Bannar on four occasions.
(Id.)
2

In reaching a decision, the Court has considered the TAC (Doc. No. 22), the Motion to Dismiss
the TAC (Doc. No. 24), and Plaintiff’s Response in Opposition (Doc. No. 26).

3

When analyzing the sufficiency of pro se Complaints, courts in this Circuit must liberally
construe the pleadings. Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002). The following
facts are taken from the TAC and are accepted as true for purposes of the Motion to Dismiss.
2

During his employment, Radnor Police Officers also subjected Plaintiff to negative
treatment. During two separate and unrelated conversations in the computer room at Radnor PD,
Officer Bannar and Sergeant Stiansen both said to Plaintiff, “If you don’t like it here you can go
back where you came from.” (Id. ¶ 27.) Another time, Officer Lacey “outwardly and publicly
belittle[d] and embarrass[ed]” Plaintiff after Plaintiff asked whether there was a “community
relations officer” at the Radnor PD. (Id. ¶ 29.)
Plaintiff alleges that on various occasions, he was derided “for his speech, made fun of
for the jobs women in his culture engage in,” and was the subject of jokes regarding his culture.
(Id. ¶ 41.) Plaintiff alleged that during a twelve-hour training session with Officer Bannar,
Bannar “made remarks about Chinatown massage parlors after he received a personal call from
[an] unknown female.” (Id. at 17.) According to Plaintiff, Officer Bannar made a comment
about the caller working in a massage parlor and said, “I want to go [to] Chinatown massage
parlors to get a happy ending.” (Id.) Plaintiff considered this a racist comment. (Id.) Plaintiff
states that his coworkers generally would “talk, laugh, and constantly point in his direction.” (Id.
¶ 41.)
Plaintiff further alleges that he informed both Officer Bannar (his superior officer), and
Sergeant Stiansen of various “incidents and inappropriate acts of but not limited to racial
profiling.” (Id. ¶ 32.) Instead of addressing his concerns, Plaintiff alleges that Defendants made
it impossible for him to complete his work, causing him to become “broken to the point of being
forced to resign.” (Id.) Specifically, Sergeant Maguire began to ignore Plaintiff during roll call,
which precluded Plaintiff from accessing an overtime sheet that was being passed from officer to
officer. (Id. ¶ 33.) Additionally, Plaintiff was instructed to drive a “patrol sector” 4 for twelve

4

In the TAC, Plaintiff does not explain or define “patrol sector.”
3

hours without a break. (Id.) Plaintiff’s fellow officers did not assist him. (Id.) Plaintiff alleges
that he began to receive negative performance reports, which included false statements about
him. (Id.) As a result, he suffered serious mental stress. (Id. ¶ 34.) Ultimately, he was forced to
resign from the Radnor PD. (Id. ¶ 38.)
On May 4, 2015, Plaintiff initiated this action pro se after exhausting his administrative
remedies under Title VII. (Doc. No. 1.) He filed an Amended Complaint on May 26, 2015.
(Doc. No. 2.) On June 17, 2015, Defendants filed a Motion to Dismiss the Amended Complaint
(Doc. No. 12). The Court held a hearing on Defendants’ Motion to Dismiss on September 16,
2015. Prior to the hearing, Plaintiff filed a Motion for Leave to File an Amended Complaint
(Doc. No. 15), and he presented the Second Amended Complaint at the hearing. Following the
hearing, the Court granted Plaintiff’s Motion (Doc. No. 15), ordered that the Second Amended
Complaint be filed of record, and granted Plaintiff leave to file a Third Amended Complaint.
(Doc. No. 19.) Upon the filing of the TAC on October 7, 2015 (Doc. No. 22), the Court denied
Defendants’ pending Motion to Dismiss without prejudice as moot. (Doc. No. 23.) On October
27, 2015, Defendants filed a Motion to Dismiss the TAC. (Doc. No. 24.) Plaintiff filed a
Response in Opposition on December 22, 2015. (Doc. No. 26.)
III.

STANDARD OF REVIEW
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set

forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that “threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements do not suffice” to
defeat a Rule 12(b)(6) motion to dismiss. Id. at 663; see also Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007). “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.” Ethypharm S.A.
France v. Abbott Labs., 707 F.3d 223, n.14 (3d Cir. 2013) (citing Sheridan v. NGK Metals Corp.,
4

609 F.3d 239, n.27 (3d Cir. 2010)). “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.” Id. Applying the principles of Iqbal and Twombly, the Third
Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part
analysis that a district court in this Circuit must conduct in evaluating whether allegations in a
complaint survive a 12(b)(6) motion to dismiss:
First, the court must “tak[e] 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.”
Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679). “This means that our inquiry is normally broken
into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike
conclusory allegations, and then (3) looking at the well-pleaded components of the complaint
and evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
When determining a motion to dismiss, the court must “accept all factual allegations in
the complaint as true and view them in the light most favorable to the plaintiff.” Buck v.
Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Where, as here, the complaint is
filed pro se, the “complaint, ‘however inartfully pleaded’ must be held to ‘less stringent
standards than formal pleadings drafted by lawyers.’” Fatone v. Latini, 780 F.3d 184, 193 (3d
Cir. 2015) (quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). It should be dismissed only
if it appears “beyond doubt that the plaintiff can prove no set of facts in support of [his] claim
that would entitle [him] to relief.” Olaniyi v. Alexa Cab Co., 239 Fed. Appx. 698, 699 (3d Cir.
2007) (citing McDowell v. Del. State Police, 88 F.3d 188, 189 (3d Cir. 1996)).
5

IV.

ANALYSIS
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants seek to dismiss the

TAC in its entirety. (Doc. No. 24.) The Court will address each of Plaintiff’s claims in turn.
A. Plaintiff Has Plausibly Alleged a Claim of Racial Discrimination
In Count I of the TAC, Plaintiff alleges that Defendants discriminated against him in
violation of Title VII. Title VII makes it unlawful for an employer to “discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, . . . or national origin.” 42 U.S.C. § 2000e-2(a)(1)
(2012). In the absence of direct evidence of discrimination, 5 a plaintiff alleging intentional
discrimination may establish a prima facie case of discrimination under the McDonnell Douglas
framework. Rodriguez v. Nat’l R.R. Passenger Corp., 532 F. App’x 152, 152 (3d Cir. 2013)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To make out a prima
facie case, Plaintiff must show that he: “(1) is a member of a protected class; (2) was qualified
for the position; (3) suffered an adverse employment action; and (4) the adverse employment
action was made under circumstances that give rise to an inference of unlawful discrimination.”
Id. Defendants do not contest that Plaintiff is a member of a protected class. Accordingly, this
discussion will focus on the second, third, and fourth elements of the prima facie case analysis.
With regard to the second element—whether Plaintiff was qualified for the position—
Defendants argue that the Complaint “is silent with respect to any reference to Plaintiff’s actual
5

A plaintiff seeking to use direct evidence to show discrimination “faces a high hurdle,” and
“[d]erogatory comments or stray remarks in the workplace that are unrelated to employment
decisions, even when uttered by decision makers, do not constitute direct evidence of
discrimination.” Tingley-Kelley v. Tr. of Univ. of Pa., 677 F. Supp. 2d 764, 776 (E.D. Pa.
2010) (quotation omitted); see also Villanueva v. Christiana Care Health Servs., Inc., No. CIV.
A. 04-258-JJF, 2007 WL 188111, at *4 (D. Del. Jan. 23, 2007) (“While Ms. Collins’ remarks
may have been insensitive and rude, the Court cannot conclude that they are direct evidence of
discrimination.”). Based on the facts in the TAC, the Court cannot conclude that Plaintiff has
shown direct evidence of discrimination.
6

skills and abilities or, conversely, the skills and abilities required of someone serving as a
Probationary Police Officer.” (Doc. No. 24 at 7.) Plaintiff alleges, however, that he had worked
for the Philadelphia Police Department for over eighteen years with positive evaluations and no
disciplinary actions against him. (Doc. No. 22 ¶ 35.) The inference arises that Plaintiff was hired
by the Radnor PD based on his positive employment history. (Id. ¶ 38). Using an objective
standard, being hired and having the necessary education and experience compel the conclusion
that Plaintiff was qualified for the position. Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d
Cir. 1995). Accordingly, Plaintiff has satisfied the second element of a discrimination claim.
As to the third element—whether Plaintiff suffered an adverse employment action—
Plaintiff alleges that he was “forced to resign under constructive discharge.”

(Id. ¶ 32.)

Defendants argue that Plaintiff “relies exclusively on [the] legal conclusion that he was
‘constructively discharged’” and therefore does not satisfy this element. (Doc. No. 24 at 8.)
Under Title VII, “a plaintiff who voluntarily resigned may maintain a case of constructive
discharge when the employer's allegedly discriminatory conduct creates an atmosphere that is the
constructive equivalent of a discharge.” Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d
1061, 1075 (3d Cir. 1996) (citations omitted). This is an objective test applied “to determine
whether ‘the employer knowingly permitted conditions of discrimination in employment so
intolerable that a reasonable person subject to them would resign.’” Id. (quoting Aman v. Cort
Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir. 1996)).
At the motion to dismiss stage, a court must determine whether the facts as pleaded could
cause a reasonable jury to find that Plaintiff’s continued employment would be intolerable. See
Wiest v. Lynch, 15 F. Supp. 3d 543, 561 (E.D. Pa. 2014) (stating “it is too early, at the motion to
dismiss stage,” to hold that plaintiff cannot establish constructive discharge based on his

7

subjective “physiological responses” and sudden poor evaluations). Courts look to various
factors in making this determination, including whether: “(1) [Plaintiff] was threatened with
discharge; (2) [he] was encouraged to resign; (3) [he] was demoted or suffered a reduction in pay
or benefits; (4) [he] was involuntarily transferred to a less desirable position; (5) [his] job
responsibilities were altered; and (6) [he] began receiving unsatisfactory job evaluations.”
Seeney v. Elwyn, Inc., 409 F. App'x 570, 573 (3d Cir. 2011); see also Embrico v. U.S. Steel
Corp., 404 F. Supp. 2d 802, 822 (E.D. Pa. 2005) (stating, “Courts have found that a poor
performance rating coupled with evidence that the employer has used it to the plaintiff's
detriment may be considered an adverse employment action.” (quotation omitted)).
Plaintiff has alleged that on two occasions, Officer Bannar and Sergeant Stiansen said to
him, “If you don’t like it here you can go back where you came from.” (Doc. No. 22 ¶ 27.)
Additionally, Plaintiff alleges that on various occasions he was “publicly belittle[d],” derided for
the way he spoke, and made fun of for the work in which women in his culture engaged. (Id. ¶¶
29, 41.) Plaintiff states that he informed both Officer Bannar and Sergeant Stiansen of various
“incidents and inappropriate acts of but not limited to racial profiling,” and nothing was done.
(Id. ¶ 32.) Plaintiff has alleged that he was instructed to drive a “patrol sector” without a break
and without help for twelve hours. (Id. ¶ 33.) He was also ignored during roll call, which
prevented him access to an overtime sheet. (Id.)

Moreover, during this time, he began to

receive poor performance reviews even though he had previously only received positive reviews.
(Id. ¶¶ 33, 35.)

Accepting Plaintiff’s allegations as true, Plaintiff’s resignation may be

considered a forced resignation under constructive discharge and therefore an adverse
employment action at this stage.

8

Defendants next argue that Plaintiff has not alleged that the adverse employment action
(here, a constructive discharge) occurred because of his membership in a protected class. Under
the fourth element of the prima facie case—whether the adverse employment action was made
under circumstances giving rise to an inference of unlawful discrimination—the relevant inquiry
is whether discriminatory animus motivated the employer to take the adverse employment
action. Rodriguez, 532 F. App’x at 153 (citing Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.
1994)). “The inquiry into the [fourth] element, proof of a causal link, generally focuses on
timing and proof of ongoing antagonism.” Burton v. Pa. Bd. of Prob. & Parole, No. CIV. A.022573, 2002 WL 1332808, at *6 (E.D. Pa. June 13, 2002) (citing Woodson v. Scott Paper Co.,
109 F.3d 913, 920-21 (3d Cir. 1997)).
Here, Plaintiff has alleged that Defendants’ conduct caused him to be “broken to the point
of being forced to resign under constructive discharge due to Defendants making it impossible
for Plaintiff to complete his task at hand as an officer.” (Id. ¶ 32.) Plaintiff claims that he told
both Officer Bannar and Sergeant Stiansen about various “incidents and inappropriate acts of but
not limited to racial profiling.” (Id. ¶ 32.) Furthermore, Plaintiff alleges that Officer Bannar,
Plaintiff’s superior officer, made various discriminatory comments toward him. Though Plaintiff
does not specify the temporal relation between Defendants’ conduct and his resignation, the
Court infers that they were close in time based on Plaintiff’s allegation that he became “broken
to the point of being forced to resign.” (Doc. No. 22 ¶ 32); see Burton, 2002 WL 1332808, at *6
(declining to dismiss discrimination claims even though “the complaint is not a model of clarity
and fails to establish a coherent time-line of alleged misconduct”).
Given the above analysis, Plaintiff has alleged facts that show that the discrimination
created conditions so intolerable that a reasonable person would resign. Because Plaintiff has

9

made out a prima facie case, the Court will not dismiss Plaintiff’s Title VII discrimination claim
at this stage.
B. Plaintiff Has Plausibly Alleged a Claim of Hostile Work Environment
Defendants next argue that Plaintiff has not adequately pled a claim for hostile work
environment. Defendants argue that Plaintiff has failed to show that he suffered “intentional
discrimination because of membership in a protected class,” and, “as the remaining prima facie
elements of a hostile work environment claim hinge on [the first element,] those elements cannot
be satisfied.” (Doc. No. 24 at 8.) The Court disagrees.
To successfully assert a hostile work environment claim under Title VII, Plaintiff must
demonstrate that: “(1) he suffered intentional discrimination because of his [race]; (2) the
discrimination was pervasive and regular; (3) it detrimentally affected him; (4) it would have
detrimentally affected a reasonable person of the same protected class in his position; and (5)
there is a basis for vicarious liability.” Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.
2015) (alterations in original) (quoting Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001)).
First, Plaintiff has plausibly alleged the first element of the prima facie case, that he
suffered intentional discrimination because of his membership in a protected class. (Doc. No. 24
at 8.)

Title VII “applies to both ‘facially neutral mistreatment’” and “overt [ethnic]

discrimination” that together create a hostile work environment. Cardenas, 269 F.3d at 261
(alteration in original) (quotation omitted).

For example, the court in Cardenas held that,

considering facially discriminatory comments regarding the plaintiff’s ethnicity, management
decisions complained of by plaintiff, though facially neutral, provided evidence “from which a
jury might find ethnic animus underlying other ostensibly nondiscriminatory incidents.” Id. at
262.

10

The Third Circuit has “never required a plaintiff to demonstrate direct proof that [his]
harasser's intent was to create a discriminatory environment.” Abramson v. William Paterson
Coll. of N.J., 260 F.3d 265, 278 (3d Cir. 2001). Instead, “with respect to certain conduct, the
intent to discriminate can be inferred.” Id. Additionally, “because discrimination is ‘often
simply masked in more subtle forms,’ it is often difficult to discern discriminatory animus.” Id.
(quoting Aman, 85 F.3d at 1074).
Defendants argue that Plaintiff’s Complaint “makes only passing reference[s]” to
Plaintiff’s “membership in a protected class and, instead, focuses the allegations of mistreatment
on reaction[s] to his complaints about supposed racial profiling.” (Doc. No. 24 at 8.) However,
the Court must construe the facts in the light most favorable to Plaintiff. In the TAC, Plaintiff
alleges that he was the recipient of many discriminatory comments. Plaintiff alleges that on two
separate occasions, Officer Bannar and Sergeant Stiansen said to Plaintiff, “If you don’t like it
here you can go back where you came from.” (Doc. No. 22 at ¶ 27.) He also alleges that Officer
Lacey “outwardly and publicly belittle[d] and embarrass[ed]” him. (Id. ¶ 29.) Plaintiff alleges
that he was ridiculed “for his speech, made fun of for the jobs women in his culture engage in,”
and was the subject of jokes regarding his culture. (Id. at 41.) Plaintiff alleges that Officer
Bannar made remarks to Plaintiff about wanting to go to a Chinatown massage parlor to “get a
happy ending.” (Id.) Additionally, Sergeant Maguire ignored Plaintiff during roll call, thereby
precluding Plaintiff’s access to an overtime sheet that was passed from officer to officer during
roll call. (Id. ¶ 33.) Finally, Plaintiff’s fellow officers failed to assist him while on patrol, and
Plaintiff began to receive poor performance reports, which he alleges contained false
information. (Id.)

11

Based on the aforementioned remarks, Plaintiff has sufficiently alleged “overt [ethnic]
discrimination.” Cardenas, 269 F.3d at 261. With respect to the alleged conduct, “the intent to
discriminate can be inferred.” Abramson, 260 F.3d at 278. The facially neutral conduct, taken
together with the discriminatory comments, provides evidence “from which a jury might find
ethnic animus underlying other ostensibly nondiscriminatory incidents.” Cardenas, 269 F.3d at
262. Accordingly, Plaintiff has fulfilled the first element of the prima facie case for hostile work
environment.
Second, Plaintiff has alleged facts sufficient to prove that the discrimination was
pervasive and regular, and altered the conditions of his employment. To satsify the second
element, it is well settled that “a plaintiff must show that his workplace was ‘permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working environment.’” Brooks v.
CBS Radio, Inc., 342 F. App’x 771, 776 (3d Cir. 2009) (quoting Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116 (2002)). The environment must be objectively hostile. Greer v.
Mondelez Global Inc., 590 F. App’x 170, 173 (3d Cir. 2014).
Further, in the Third Circuit, analysis of hostile work environment claims “must
concentrate not on individual incidents, but on the overall scenario.” Abramson, 260 F.3d at 276
(quotation omitted). As a result, to determine whether harassment was severe or pervasive, the
Court must look at all of the circumstances and consider “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.” Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (internal quotation marks omitted).

12

Here, taking into account the circumstances, the discriminatory conduct Plaintiff alleges
created an objectively hostile work environment.

Plaintiff was the recipient of frequent

discriminatory comments from Radnor Police Officers. 6 Plaintiff alleges that these comments
interfered with his work. Beyond the discriminatory comments, Plaintiff alleges that he was
ignored during roll call, which precluded him from receiving an overtime sheet that was passed
from officer to officer. (Doc. No. 22 ¶ 33.) He also alleges that his fellow officers failed to assist
him while on patrol, and he began to receive negative performance reports. (Id.) As a result,
Plaintiff suffered mental stress. (Id. ¶ 34.) Accordingly, Plaintiff has sufficiently pled that “the
alleged statements that suggest racial animus are objectively hostile acts that altered the ‘terms
and conditions’ of [his] employment.” Greer, 590 F. App’x at 174 (quoting Breeden, 532 U.S. at
270). Thus, Plaintiff has sufficiently pled that the discrimination was pervasive and regular.
Third, Plaintiff has sufficiently alleged that the discrimination detrimentally affected him.
This element of the prima facie case is a subjective standard, requiring a showing that “the
alleged conduct injured this particular plaintiff giving [him] a claim for judicial relief.” Andrews
v. City of Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990). In the TAC, Plaintiff states that he
suffered mental stress and was “broken to the point of being forced to resign.” (Doc. No. 22 ¶
32.) Thus, Plaintiff has sufficiently pled the third element of the prima facie case.
Fourth, Plaintiff also has plausibly alleged that a reasonable person who is in the same
protected class in his position would be detrimentally affected by the discrimination. The fourth
element is an objective standard and “it is here that the finder of fact must actually determine
6

As noted, Plaintiff alleges that he was repeatedly told, “If you don’t like it here you can go back
where you came from.” (Doc. No. 22 at ¶ 27.) He also claims that he was ridiculed for his
speech, was “made fun of for the jobs women in his culture engage in,” and was the subject of
jokes regarding his culture. (Id. ¶ 41.) Plaintiff further alleges that Officer Bannar made
remarks to Plaintiff about wanting to go to a Chinatown massage parlor to “get a happy
ending.” (Id.)
13

whether the work environment is [racially] hostile.” Andrews, 895 F.2d at 1483; see also Bryant
v. Wilkes-Barre Hosp., Co., 146 F. Supp. 3d 628 (M.D. Pa. 2015) ( “Plaintiff also has produced
sufficient evidence to show that the repeated comments and continual mocking by her coworkers made her more than simply upset [] and that this conduct would have detrimentally
affected a reasonable person in like circumstances.”). Plaintiff has plausibly alleged that the
racial remarks and negative comments would detrimentally affect a reasonable person in his
protected class.
Finally, Plaintiff has sufficiently pled that Radnor PD is vicariously liable for racially
discriminatory acts. Under the fifth element, Plaintiff must allege a basis for respondeat superior
liability. Andrews, 895 F.2d at 1482. Under the doctrine of respondeat superior, an employer
may be liable for racially discriminatory acts by an employee who creates a hostile work
environment. Faragher, 524 U.S. 775, 780 (1998). An employer will be liable for creation of a
hostile work environment where the alleged harasser is a supervisor. The United States Supreme
Court has stated that an employee is a “supervisor” when “the employer has empowered that
employee to take tangible employment actions against the victim . . .” Vance v. Ball State Univ.,
133 S. Ct. 2434, 2443 (2013) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 744
(1998)).

A “tangible employment action” includes “discharge, demotion, or undesired

reassignment.” Ellerth, 534 U.S. at 765.
Construing Plaintiff’s Complaint liberally, it appears that Sergeant Stiansen, Lieutenant
Block, and Sergeant Maguire are all supervisors of Plaintiff. Plaintiff specifically alleged that
Sergeant Maguire began to ignore Plaintiff during roll call, preventing access to an overtime
sheet. (Doc. No. 22 ¶ 33.) Plaintiff also alleges that he began to receive negative performance
reports, which contained false information. (Id.) Additionally, Plaintiff alleges that Officer

14

Bannar, who is alleged to have subjected Plaintiff to many instances of racial discrimination, was
assigned to train Plaintiff for twelve hours. (Doc. No. 22.) Further, Defendants have not alleged
that any employees of the Radnor PD named in Plaintiff’s Complaint were not Plaintiff’s
supervisors. Because Plaintiff has fulfilled all of the elements of the prima facie case, his hostile
work environment claim will not be dismissed at this juncture.
C. Plaintiff Has Not Plausibly Alleged a Retaliation Claim
Next, Plaintiff alleges that Defendants retaliated against him based on his race and
national origin. After Plaintiff informed his superior officer about racial profiling by other
officers, Plaintiff was “talked down to,” “yelled at,” and given negative performance reviews.
(Doc. No. 22 ¶ 33.) Defendants argue that Plaintiff’s retaliation claim fails because the alleged
retaliation was in response to Plaintiff’s opposition to racial profiling of the public, which is not
an activity protected by Title VII. The Court agrees and will dismiss Plaintiff’s retaliation claim.
Title VII makes it unlawful for an employer “to discriminate against any individual . . .
because he has opposed any practice made an unlawful employment practice by this subchapter
or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Thus, it is
unlawful for an employer to take an adverse employment action against an employee who either
opposes a discriminatory employment practice or files a complaint with the EEOC.

To

successfully allege a claim of retaliation, Plaintiff must demonstrate that: (1) he engaged in
protected activity, which means that he either opposed an employment practice or filed an EEOC
charge; (2) he was subjected to contemporaneous or subsequent adverse action; and (3) there was
a causal link between Plaintiff’s protected activity and the adverse action. Moore v. City of
Phila., 461 F.3d 331, 341 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d

15

Cir. 1995)).

Defendants challenge the “protected activity” and “causal link” elements of

Plaintiff’s prima facie retaliation case, and the Court will address only these elements. (Doc. No.
24 at 10.)
First, Defendants allege that Plaintiff has failed to sufficiently plead the first element of a
retaliation claim because he did not engage in a protected activity. Indeed, “protected employee
activity includes ‘participat[ing] in certain Title VII proceedings’ and ‘oppos[ing] discrimination
made unlawful by Title VII.’” Tinio v. St. Joseph’s Reg’l Med. Ctr., No. 15-2096, 2016 WL
1169121 at *2 (3d Cir. Mar. 25, 2016) (quoting Moore, 461 F.3d at 341). “For an activity to be
protected, the employee must hold an objectively reasonable and good faith belief that the
activity they oppose is unlawful under Title VII.” Spangler v. City of Phila., 523 F. App’x 142,
146 (3d Cir. 2013) (quoting Moore, 461 F.3d at 341).
In Wimmer v. Suffolk County Police Department, the Second Circuit addressed a
question of retaliation concerning a probationary police officer. 176 F.3d 125, 128 (2d Cir.
1999). There, the plaintiff alleged that he was given poor performance reviews and eventually
terminated after he reported police officers making racial slurs at black citizens and questioned
one officer’s traffic stops of Hispanic drivers without cause. Id. at 134. The court explained
that, because the plaintiff’s opposition “was not directed at an unlawful employment practice of
his employer,” the plaintiff’s claim of retaliation was not cognizable under Title VII. Id. at 135
(emphasis in original).
Here, Plaintiff alleges that he informed Officer Bannar and Sergeant Stiansen of various
incidents of racial profiling, but instead of addressing his concerns, Defendants made it

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impossible for Plaintiff to work. 7 (Doc. No. 24 ¶ 32.) However, none of Plaintiff’s opposition
activity implicated an employment practice made illegal by Title VII because Plaintiff opposed
the racial profiling of citizens of Radnor, and not of employees of the Radnor PD. See Rossell v.
Cty. Bank, 270 F. App’x 217, 217 (3d Cir. 2008) (finding that a bank’s treatment of black
customers did not constitute a protected activity because treatment of customers is not covered
by Title VII); Slaughter v. Cty. of Alleghany, No. 2:11–cv–00880, 2014 WL 3778318 at *5
(W.D. Pa. July 30, 2014) (following Wimmer and stating that “complaints about racially
discriminatory actions by co-workers against non-employees are not ‘protected activity’
under Title VII”).
With regard to third element of Plaintiff’s retaliation claim, Defendants allege that he
does not state a plausible claim because he has not established that there was a causal link
between the protected activity and the adverse action. Defendants maintain that the alleged
retaliation and poor performance reviews were not in response to any protected activity. (Doc.
No. 24 at 10.)
Here, Plaintiff has not established that he engaged in a protected activity because, as
previously stated, complaints regarding the treatment of non-employees are not protected by
Title VII. As such, Plaintiff has not demonstrated that a causal connection existed between his
engagement in a protected activity and Defendants’ adverse action. For these reasons, Plaintiff’s
retaliation claim will be dismissed.

7

Specifically, Plaintiff alleges that shortly after he began working, he witnessed Sergeant
Stiansen and other Radnor Police Officers engaging in racial profiling, and he reported this to
Officer Bannar. (Id. ¶ 18.) Plaintiff also alleges that he expressed his concern to Officer
Bannar that no property receipt was prepared for a Caucasian individual who was found in
possession of unmarked narcotic bottles. (Id. ¶¶ 22-23.)
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D. Plaintiff Has Not Plausibly Alleged an Unfair Labor Practices Claim
Finally, Defendants argue that Plaintiff’s National Labor Relations Act of 1935
(“NLRA”) claim fails because he has failed to set forth any basis for his claim and because the
NLRA does not apply to public employers and employees. (Doc. No. 24 at 11.)
The NLRA “does not cover public employers or their employees.” Plouffe v. Gambone,
Civ. A. No. 11-6390, 2012 WL 2343381 at *6 (E.D. Pa. June 20, 2012) (citing 29 U.S.C. §
152(2)); Jackson v. Temple Univ., 721 F.2d 931, 933-34 (3d Cir. 1983). In the TAC, Plaintiff
states both that Radnor PD is a local government agency, and that he was employed as a Radnor
Police Officer. (Doc. No. 22 ¶¶ 2, 17.) As such, Plaintiff is not an employee covered by the
NLRA, and for this reason, the claim fails.
V.

CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. No. 24) will be granted

in part and denied in part. Plaintiff’s retaliation and unfair labor practices claims will be
dismissed and his discrimination and hostile work environment claims will not be dismissed.
An appropriate Order follows.

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