VAZQUEZ v. CARR AND DUFF, INC. et al

Filing 20

MEMORANDUM AND ORDER THAT DEFENDANT THURMOND PACE MOTION TO DISMISS IS GRANTED IN ITS ENTIRETY. DEFENDANT CARR AND DUFF, INC.'S MOTION TO DISMISS IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/28/17. 9/28/17 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MIGUEL A. VAZQUEZ,
Plaintiff,
v.
CARR AND DUFF, INC., et al.
Defendants.

Jones, II

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CIVIL ACTION
NO. 16-1727

J.

September 22, 2017

MEMORANDUM
Plaintiff Miguel Vasquez alleges that he was sexually harassed by Defendant Thurmond
Pace while employed as a ground hand for Defendant Carr and Duff, Inc. Plaintiff alleges that
Defendant Pace’s conduct created a hostile work environment and that Defendant Carr and Duff
unlawfully retaliated against Plaintiff once Plaintiff reported Defendant Pace’s inappropriate
behavior. As a result of thereof, Plaintiff filed the present action alleging violations of Title VII
of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act (“PHRA”), and the
Philadelphia Fair Practices Ordinance (“PFPO”). The defendants each filed Motions to Dismiss
Plaintiff’s Complaint, which the Court considers herein. For the reasons that follow, Defendant
Carr and Duff’s Motion is granted in part and denied in part and Defendant Pace’s Motion is
granted in its entirety. Plaintiff is granted leave to amend the Complaint within fourteen days of
the filing of this Memorandum and the corresponding Order.

FACTUAL BACKGROUND
The following facts are presented in the light most favorable to Plaintiff. Defendant Carr
and Duff, Inc. is a Pennsylvania based electrical construction company. (ECF No. 1, ¶ 9). In
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April of 2014, Plaintiff began working for Defendant Carr and Duff as a ground hand. (ECF No.
1, ¶ 15). At that time, Defendant Pace worked for Defendant Carr and Duff as a foreman. (ECF
No. 1, ¶ 11).
Beginning in June of 2014, Plaintiff alleges that Defendant Pace subjected him to sex
discrimination and sexual harassment on an ongoing and continuous basis. (ECF No. 1, ¶¶ 16,
18). On an almost daily basis from June of 2014 through September of 2014, Defendant Pace
exposed his genitals to Plaintiff, showed Plaintiff pornographic images, discussed sexual exploits
in explicit detail in Plaintiff’s presence, and subjected Plaintiff to unwelcomed physical contact.
(ECF No. 1, ¶ 17-18). Plaintiff repeatedly asked Defendant Pace to stop, but Defendant Pace
would “laugh at Plaintiff’s noticeable humiliation and discomfort,” and would tell Plaintiff that
Defendant Pace’s actions were “just a joke.” (ECF No. 1, ¶ 20-21).
On at least one occasion, Defendant Pace snuck up behind Plaintiff, held his bare genitals
in his hand, and screamed to get Plaintiff’s attention. (ECF No. 1, ¶ 19). Defendant Pace then
laughed and exclaimed, “Look how big it is” and that Hispanic men “do not have a big one like I
do.” (ECF No. 1, ¶ 19). On another occasion, Defendant Pace grabbed Plaintiff, threw stones
down Plaintiff’s pants, and made disparaging comments about Plaintiff’s body – specifically that
Plaintiff was not “packing” like Defendant Pace. (ECF No. 1, ¶ 30). Throughout the several
month period of alleged harassment, Defendant Pace subjected Plaintiff to numerous unwanted
sexual advances. (ECF No. 1, ¶ 24, 26).
While Defendant Pace was on vacation, Plaintiff reported Defendant Pace’s inappropriate
conduct and comments to his interim supervisor. (ECF No. 1, ¶¶ 31-32). Plaintiff then discussed
Defendant Pace’s obscene behavior with Defendant Carr and Duff’s Director of Risk
Management and Project Manager, who assured Plaintiff that they would handle the matter

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confidentially. (ECF No. 1, ¶¶ 33-35). Following the meeting, Defendant Carr and Duff moved
Plaintiff to a new site and a new foreman. (ECF No. 1, ¶ 36). Despite the move, Plaintiff was
forced to still regularly see and interact with Defendant Pace. (ECF No. 1, ¶ 39). Defendant Carr
and Duff never conducted further investigation into Defendant Pace’s actions or comments.
(ECF No. 1, ¶ 37).
On October 23, 2014, Plaintiff filed an Equal Employment Opportunity Commission
(“EEOC”) Charge of Discrimination against Defendants. (ECF No. 1, ¶ 41). At some point
thereafter, Defendant Carr and Duff’s EEO Officer informed Plaintiff that she had been
contacted by the EEOC and asked Plaintiff why she had not been informed of the filing earlier.
(ECF No. 1, ¶ 42). The EEO Officer also asked if Plaintiff had obtained an attorney. (ECF No. 1,
¶ 42). About two days thereafter, Defendant Carr and Duff ran a credit check on Plaintiff as a
“new employee.” (ECF No. 1, ¶ 44). On November 24, 2014, Plaintiff amended his original
EEOC Charge to include an allegation of unlawful retaliation. (ECF No. 1, ¶ 45). Plaintiff was
terminated roughly two months later. (ECF No. 1, ¶¶ 46).

PROCEDURAL HISTORY
Plaintiff reportedly filed his first EEOC Charge of Discrimination against Defendants in
October of 2014, (ECF No. 1, ¶ 41), though the documentation provided to this Court relates
only to the amended EEOC Charge filed on November 24, 2014 and a subsequent EEOC Charge
filed in September of 2015. (ECF No. 15-2, Ex. B, Ex. C). In the November 2014 amended
Charge, Plaintiff asserts that Defendant Pace’s conduct and the running of his credit report were
acts of sex discrimination and retaliation, respectively, made unlawful by Title VII. (ECF No.
15-2, Ex. B). The November 2014 Charge was cross-filed with the Pennsylvania Human
Relations Commission (“PHRC”). (ECF No. 15-2, Ex. B).
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On September 3, 2015, Plaintiff filed an additional EEOC Charge of Discrimination,
alleging that his termination was unlawful retaliation in violation of Title VII. (ECF No. 15-2,
Ex. C). This Charge was also cross-filed with the PHRC. (ECF No. 15-2, Ex. C).
Based on the facts as described above, Plaintiff filed the instant action against Defendants
alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Pennsylvania
Human Relations Act ("PHRA"), and the Philadelphia Fair Practices Ordinance ("PFPO"). (ECF
No. 1, ¶¶ 57, 60, 64, 67, 70, 74, 77, 80). Defendants timely filed their respective Motions to
Dismiss Plaintiff’s Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted and Federal Rule of Civil Procedure 12(b)(1) for
failure to exhaust administrative remedies. Presently before the Court are Defendants’ Motions
and Plaintiff’s responses thereto.

STANDARD OF REVIEW
I.

Rule 12(b)(1)
“Although it is a basic tenet of administrative law that a plaintiff should timely exhaust

all administrative remedies before seeking judicial relief, the purpose of this rule is practical,
rather than a matter affecting substantive justice…Failure to exhaust is in the nature of statutes of
limitation and does not affect the District Court’s subject matter jurisdiction.” Anjelino v. New
York Times Co., 200 F.3d 73, 87 (3d Cir. 1999) (internal quotations omitted). It is therefore
more appropriate to assess Defendants’ exhaustion arguments in favor of dismissal under Federal
Rule of Civil Procedure 12(b)(6). See id. (“Thus, the District Court should have considered the
exhaustion and timeliness defenses presented in this case under Rule 12(b)(6), rather than under
Rule 12(b)(1).”).

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II.

Rule 12(b)(6)
In deciding a motion to dismiss pursuant to 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 omitted). After the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. at 678
(citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, “asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. at 678; accord Fowler v.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“[A]ll civil complaints must contain more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.”) (internal quotation marks
omitted).

DISCUSSION
Plaintiff’s claims for unlawful discrimination and retaliation arise under Title VII, the
PHRA, and the PFPO. Plaintiff also brings claims against Defendants for aiding and abetting
unlawful employment practices in violation of the PHRA and the PFPO. For Defendants’
respective violations, Plaintiff seeks an unspecified amount in punitive damages. Defendants
challenge the sufficiency of the pleadings to establish each of Plaintiff’s claims and in some
instances, advance several arguments in favor of dismissal of a single claim. In the interest of

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clarity, this Court considers each of Plaintiff’s claims in turn, organized according to the statute
or ordinance under which the claims arise.
I.

Title VII Claims
A. Sexual Discrimination
In Count I of the Complaint, Plaintiff alleges that Defendant Carr and Duff discriminated

against Plaintiff on the basis of sex, in violation of Title VII. (ECF No. 1, ¶ 56-57). 1 Under Title
VII, a claim for sex discrimination can be presented in one of two ways: quid pro quo or hostile
work environment. To state a claim for sex discrimination by way of hostile work environment,
the plaintiff must demonstrate: (1) the plaintiff suffered intentional discrimination because of his
or her sex, (2) the discrimination was severe and pervasive, (3) the discrimination detrimentally
affected the plaintiff, (4) the discrimination would detrimentally effect a reasonable person of the
same sex in that position, and (5) the existence of respondeat superior liability. Andrews v.
Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). Importantly, in Castleberry v. STI Group, the
Third Circuit confirmed that the “severe and pervasive” element of the hostile work environment
standard requires only a showing that the discrimination experienced was severe or pervasive.
863 F.3d 259, 264 (3d Cir. 2017).
Defendant Carr and Duff seek dismissal of Count I on the grounds that the pleadings are
insufficient to establish intentional discrimination on the basis of sex, the severity or
pervasiveness of the misconduct alleged, or the propriety of respondeat superior liability in this
case. (ECF No. 15-2, p. 7-12). This Court finds that while the facts as alleged sufficiently
establish the first and second elements of the hostile work environment standard, Count I of the
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The Complaint does not clearly establish against whom Plaintiff brings each of his claims. The caption for Count I
and Count II include “Not Against Individual Defendants,” but in the bodies of all eight claims, Plaintiff makes
repeated reference to the unlawful conduct of “Defendants” generally. Given the differences in the Plaintiff’s
captions, the Court operates under the assumption that Plaintiff brings Counts I and II only against the defendantemployer and brings Counts III through VIII against both the defendant-employer and the defendant employee.

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Complaint is dismissed for failure to establish the existence of respondeat superior liability.
Defendant Carr and Duff’s Motion is granted as it relates to Count I.
i. Supervisor as Harasser
The Supreme Court “has held that an employer is directly liable for an employee’s
unlawful harassment if the employer was negligent with respect to the offensive behavior.”
Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013) (citing Faragher v. City of Boca Raton,
524 U.S. 775, 789 (1998)). The means by which a court determines the existence of respondeat
superior liability in a hostile work environment case is dependent on the status of the alleged
harasser. Id. at 2439. Where the alleged harasser was the plaintiff’s supervisor, respondeat
superior liability is established in one of two ways. If the supervisor-harasser takes tangible
employment action against the plaintiff, the defendant-employer is strictly liable for the
supervisor’s discriminatory conduct. Id. But where no tangible employment action is taken, an
employer can escape liability by establishing that the employer “exercised reasonable care to
prevent and correct” the alleged harassment and that the plaintiff “unreasonably failed to take
advantage of the preventative or corrective opportunities the employer provided.” Id.
Plaintiff fails to plead sufficient facts to establish Defendant Pace was Plaintiff’s
supervisor. “[A]n employee is a “supervisor” for the purposes of vicarious liability under Title
VII if he or she is empowered by the employer to take tangible employment actions against the
victim.” Id. at 2454. Historically, the Court has defined “tangible employment action” as being
that which “constitutes a significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Id. at 2456 (citing Burlington Indus. v. Ellerth, 524 U.S. 742, 761
(1998)). Besides identifying Defendant Pace as Defendant Carr and Duff’s foreman, and baldly

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asserting that Defendant Pace “held supervisory authority over Plaintiff,” Plaintiff provides no
facts from which this Court could reasonably infer that Defendant Pace was Plaintiff’s supervisor
at the time the alleged harassment occurred. The Court notes that the title of “foreman” is
commonly associated with managerial responsibilities and power. But without any facts relating
to the extent of Defendant Pace’s authority as a Carr and Duff foreman, specifically, this Court
cannot determine whether Defendant Pace was a supervisor only in title or whether he wielded
the power to cause Plaintiff “direct economic harm.” Vance, 133 S.Ct. at 2448. The Court
therefore employs the standard for evaluating an employer’s response to harassing behavior by a
coworker to assess the sufficiency of the pleadings to establish respondeat superior liability.
ii. Coworker as Harasser
Where the harassing employee was not the plaintiff’s supervisor, the plaintiff can
establish employer liability by demonstrating that the defendant-employer “had actual or
constructive knowledge about the existence of a sexually hostile environment and failed to take
prompt and adequate remedial action.” Andrews, 895 F.2d at 1486. The pleadings establish that
Plaintiff reported Defendant Pace’s conduct to members of Defendant Carr and Duff’s executive
staff and Defendant Carr and Duff thereafter had Plaintiff reassigned to a new foreman and
worksite. Nothing in the Complaint suggests that Plaintiff experienced any further harassment
after the reassignment, which is fatal to Plaintiff’s claim. Generally, “when an employer’s
response stops the harassment, there can be no employer liability under Title VII.” Weston v.
Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001) (affirming the decision of the district court that
plaintiff failed to establish employer liability because the plaintiff “[did] not allege that the
offensive conduct continued after the [employer] reprimand.”). Despite Plaintiff’s arguments to
the contrary, it would appear from the pleadings that Defendant Carr and Duff’s response

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effectively ended Defendant Pace’s harassing behavior, and “[b]y definition, there is no
negligence if the [sexual harassment grievance] procedure is effective.” Bouton v. BMW of N.
America, Inc., 29 F.3d 103 at 110 (3d Cir. 1994).
Absent a showing of respondeat superior liability, Plaintiff cannot prevail on his hostile
work environment claim. The pleadings fail to establish Defendant Pace as Plaintiff’s supervisor,
and fail to identify any continued harassment following Plaintiff’s notice to Defendant Carr and
Duff of Defendant Pace’s conduct. As such, this Court can find no basis upon which to hold
Defendant Carr and Duff vicariously liable for the harassment Plaintiff allegedly experienced.
Defendant Carr and Duff’s Motion is granted as it relates to Count I of the Complaint.
B. Retaliation
In Count II of the Complaint, Plaintiff alleges that Defendant Carr and Duff unlawfully
retaliated against Plaintiff in violation of Title VII. (ECF No. 1, ¶ 58-60). To state a Title VII
claim for retaliation, the plaintiff must demonstrate (1) the plaintiff engaged in protected activity,
(2) the employer took an adverse employment action against the plaintiff, and (3) there was a
causal connection between the plaintiff’s participation in the protected activity and the adverse
employment action. Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995).
As described above, Plaintiff filed two Charges of Discrimination with the EEOC, each
of which alleged different acts of discrimination by Defendant Carr and Duff. The first Charge of
Discrimination initially alleged that Defendant Carr and Duff discriminated against Plaintiff on
the basis of sex. (ECF No. 1, ¶ 41). The Charge was subsequently amended to add the allegation
that Defendant Carr and Duff retaliated against Plaintiff by “pull[ing] [Plaintiff’s] credit report.”
(ECF No. 15-2, Ex. B). In September of 2015, Plaintiff filed a second Charge of Discrimination

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with the EEOC, alleging that Defendant Carr and Duff terminated Plaintiff in retaliation for
Plaintiff’s earlier EEOC filings. (ECF No. 15-2, Ex. C).
As a preliminary matter, to the extent that Plaintiff’s retaliation claim is based on
Defendant Carr and Duff’s credit check as a discrete adverse employment action, Plaintiff’s
claim is dismissed as a matter of law. To constitute an adverse employment action, the action
“must be serious and tangible enough to alter an employee’s compensation, terms, conditions, or
privileges of employment.” Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 842 (3d Cir. 2016)
(internal quotations omitted) (emphasis added). It is not enough that Plaintiff found the credit
check objectionable, Title VII simply was not created to provide relief for adverse actions
unrelated to an employment relationship. Thus, the Court now assesses the sufficiency of the
pleadings to establish Plaintiff’s retaliation claim, with Plaintiff’s termination as the adverse
employment action at issue.
i. Causal Nexus
For the purposes of the instant Motion, Defendant Carr and Duff concedes the sufficiency
of the pleadings to establish the first two prongs of the prima facie standard. (ECF No. 15-2, p.
14). Instead, Defendants seek dismissal of Count II on the grounds that Plaintiff cannot
demonstrate a causal nexus between his participation in protected activity and Plaintiff’s
subsequent termination. (ECF No. 15-2, p. 14). For the reasons that follow, this Court finds that
the pleadings sufficiently establish a Title VII claim for unlawful retaliation. As it relates to
Count II of the Complaint, Defendant Carr and Duff’s Motion is denied.
For the purpose of a Title VII retaliation claim, “protected activity” encompasses both
formal charges of discrimination as well as complaints to supervisors. See Swanson v. Nw.
Human Servs., 276 F. App’x 195, 196 (3d Cir. 2008) (finding that Plaintiff “clearly engaged in

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protected activity when he complained to his supervisor and when he filed his EEOC
complaint.”). Plaintiff engaged in three protected acts prior to his termination on January 16,
2015: Plaintiff met with Defendant Carr and Duff’s Director of Risk Management and Project
Manager on September 18, 2014 to report Defendant Pace’s conduct; Plaintiff filed an EEOC
Charge of Discrimination on October 23, 2014 accusing Defendant Carr and Duff of sexual
harassment; and Plaintiff amended his first EEOC Charge on November 24, 2014 to add an
accusation of unlawful retaliation by Defendant Carr and Duff. (ECF No. 1, ¶¶ 34-35, 41, 45-46).
Defendant Carr and Duff terminated Plaintiff fifty-three days after Plaintiff filed the amended
Charge.
It is under “narrow circumstances” that the proximity in time between the protected
activity and the adverse employment action is sufficient, on its own, to establish the requisite
causal connection. Gladysiewski v. Allegheny Energy, 398 F. App'x 721, 724 (3d Cir. 2010).
“Where temporal proximity is not so close as to be unduly suggestive, the appropriate test is
timing plus other evidence.” Watson v. Rozum, 834 F.3d 417, 424 (3d Cir. 2016) (internal
quotations omitted). This “other evidence” could be any circumstantial evidence that bolsters the
suggestion of retaliatory animus, including ongoing antagonism, or evidence that an employer
gave inconsistent reasons for termination. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280281 (3d Cir. 2000).
At this early stage, the Court is satisfied that Plaintiff pleads sufficient facts to infer a
causal connection between Plaintiff’s protected activity and subsequent termination. Upon notice
of Plaintiff’s first EEOC Charge, Defendant Carr and Duff’s EEO Officer contacted Plaintiff and
specifically inquired about Plaintiff’s EEOC filing. (ECF No. 1, ¶ 42). The EEO Officer asked
Plaintiff why he had not informed Defendant Carr and Duff about his intention to file the

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Charge, and inquired about Plaintiff’s plans to obtain counsel. (ECF No. 1, ¶ 42). This inquiry
seems misplaced under the circumstances, and considered in conjunction with the two months
between Plaintiff’s second EEOC Charge and Plaintiff’s termination, it is sufficient to create an
inference of retaliation.
Defendant Carr and Duff erroneously assert that Plaintiff must allege that his
participation in protected activity is the “but for” cause of the adverse employment action. Third
Circuit precedent is clear that “[a]t the prima face stage the plaintiff must produce evidence
sufficient to raise the inference that her protected activity was the likely reason for the adverse
employment action.” Carvalho-Grevious v. Del State Univ., 851 F.3d 249, 259 (3d Cir. 2017)
(internal quotations omitted). The Court is satisfied that Plaintiff has met his burden, here.
Defendant Carr and Duff’s Motion is denied as it relates to Plaintiff’s Title VII claim for
unlawful retaliation.
II.

PHRA Claims
A. Sex Discrimination
In Count III of the Complaint, Plaintiff alleges that Defendants discriminated against

Plaintiff on the basis of sex, in violation of the PHRA. (ECF No. 1, ¶ 61-64). At the outset,
Plaintiff’s claim against Defendant Pace is dismissed. By its express terms, the PHRA’s
intentional discrimination provision is intended to redress the discriminatory employment
practices of employers, not individual employees. 43 Pa. Cons. Stat. § 955(a); See also, Dici v.
Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996). As the PHRA does not allow for individual
liability for this claim, Defendant Pace’s Motion is granted as it relates to Count III of the
Complaint.

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Defendant Carr and Duff’s Motion is also granted as it relates to Count III. The PHRA
tracks Title VII claims of the same nature. Dici, 91 F.3d at 552. Just as the pleadings fail to
establish a Title VII claim for sex discrimination against Defendant Carr and Duff, the facts as
alleged are insufficient to sustain the instant PHRA claim against Defendant Carr and Duff.
B. Retaliation
In Count IV of the Complaint, Plaintiff alleges that Defendants engaged in acts of
retaliation against Plaintiff, in violation of the PHRA. (ECF No. 1, ¶ 65-67). Both defendants
seek dismissal of this claim on substantive and procedural grounds. For the reasons that follow,
this Court finds that Plaintiff’s only substantively cognizable PHRA claim for retaliation is
procedurally barred. Defendants Motions are granted as they relate to Count IV of the
Complaint.
Before a plaintiff can bring suit for alleged violations of the PHRA, he must first file a
complaint with the Pennsylvania Human Relations Commission (“PHRC”) within 180 days of
the alleged act of discrimination. 43 Pa. Cons. Stat. §§ 959(a), 962; Woodson v. Scott Paper Co.,
109 F.3d 913, 925 (3d Cir. 1997). The EEOC and PHRC have a work sharing agreement by
which the two agencies each designate the other as its agent for the purpose of receiving and
drafting charges, even those that are not jurisdictional with the agency initially in receipt of the
charges. Seybert v. Int’l Grp., Inc., No. 07-3333, 2009 U.S. Dist. LEXIS 21543 *1, *40 (E.D.
Pa. March 17, 2009). Under this work sharing agreement, “filing a charge of discrimination with
the EEOC within the 180 [day] mandatory filing period, together with a request that the EEOC
dual-file it with PHRC, is sufficient to preserve claims under the PHRA.” Id. *49-*50 (E.D. Pa.
March 17, 2009). Once the complaint is filed with the PHRC, the PHRC has “exclusive
jurisdiction over the [PHRA] claim for a period of one year in order to investigate and, if

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possible, conciliate the matter.” Burgh v. Borough Council of Montrose, 251 F.3d 465, 471 (3d
Cir. 2001). The plaintiff can bring his PHRA claim in federal court once the one-year period has
elapsed, even in the absence of a right to sue letter. Id.
Under the PHRA, both employers and individual employees can be held liable for
retaliation. 43 Pa. Cons. Stat. § 955(d). The only acts of retaliation that Plaintiff pleads against
either defendant are that which Plaintiff included in his two EEOC Charges of Discrimination.
Plaintiff’s second EEOC Charge of Discrimination – which alleges Defendant Carr and Duff
terminated Plaintiff in retaliation for Plaintiff’s opposition to workplace harassment – was dual
filed with the PHRC outside the PHRA’s 180-day window. (ECF No. 15-2, Ex. C). Defendant
Carr and Duff terminated Plaintiff’s employment on January 16, 2015, and Plaintiff did not file
his second Charge of Discrimination with the EEOC until 230 days later, on September 3, 2015.
Pennsylvania courts strictly interpret the PHRA filing requirement and “have repeatedly held that
persons with claims that are cognizable under the Human Relations Act must avail themselves of
the administrative process of the Commission or be barred from the judicial remedies”
authorized by the Act. Woodson, 109 F.3d at 925. Thus, this Court must dismiss the PHRA
claim for retaliation that is based upon Plaintiff’s termination in January of 2015.
Without the claim contained in the second Charge of Discrimination, Plaintiff’s only
remaining retaliation claim against Defendants is that which was dual filed with the EEOC and
PHRC in the November 2014 amended Charge. In that Charge, Plaintiff alleged that Defendant
Carr and Duff’s credit check was actionable retaliation, done in response to Plaintiff’s
complaints about Defendant Pace’s behavior. Plaintiff does not allege Defendant Pace’s
involvement in the credit check but ultimately, as explained above, the credit check cannot serve
as the basis of a Title VII retaliation against either defendant. Because the PHRA tracks Title VII

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claims of the same kind, Plaintiff’s claim for retaliation based on Defendant Carr and Duff’s
credit check is similarly untenable under the PHRA. Defendants Motions are therefore granted as
they relate to Count IV.
C. Aiding and Abetting
In Count V of the Complaint, Plaintiff alleges that Defendants each aided and abetted the
unlawful employment practices of a third party, in violation of the PHRA. (ECF No. 1, ¶ 68-70).
Construing the Complaint liberally, this Court proceeds under the assumption that Plaintiff
alleges Defendant Carr and Duff aided and abetted Defendant Pace’s unlawful employment
practices, and that Defendant Pace aided and abetted Defendant Carr and Duff’s unlawful
employment practices. Defendants seek dismissal of Count V on both procedural and substantive
grounds. This Court finds that the Complaint is bereft of any facts from which this Court could
reasonably infer either that Defendant Carr and Duff aided and abetted Defendant Pace’s
unlawful conduct, or that Defendant Pace aided and abetted Defendant Carr and Duff’s unlawful
conduct. Defendants Motions to dismiss Count V are therefore granted.
Section 955(e) of the PHRA makes it unlawful for “any person, employer, employment
agency, labor organization, or employee to aid, abet, incite, compel, or coerce the doing” of any
practice declared unlawful by the Act. 43 Pa. Cons. Stat. § 955(e). For reasons stated in the
foregoing sections, Plaintiff fails to establish that Defendant Pace has committed any act made
unlawful by the PHRA. It necessarily follows that Defendant Carr and Duff cannot be held liable
under the PHRA for aiding and abetting, as there is no misconduct to aid or abet. And as this
Court has also dismissed each of Plaintiff’s PHRA claims against Defendant Carr and Duff, it
would similarly appear that there is no misconduct Defendant Pace could be charged with aiding
and abetting in violation of the PHRA. Even if Defendant Pace could be held liable for aiding

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and abetting the procedurally barred PHRA claim against Defendant Carr and Duff for
retaliation, Plaintiff fails to present any facts upon which this Court could infer that Defendant
Pace – a nonsupervisory employee – had the authority to aid, abet, compel, or incite Defendant
Carr and Duff’s decision to terminate Plaintiff. Count V simply does not allege facts that could
support an aiding and abetting claim against either defendant. Defendants Motions are granted as
they relate to Count V.
III.

PFPO Claims
A. Sex Discrimination
In Count VI of the Complaint, Plaintiff alleges that Defendants discriminated against

Plaintiff on the basis of sex in violation of the PFPO. As with Plaintiff’s PHRA claim, Plaintiff’s
sex discrimination claim against Defendant Pace is dismissed. By its express terms, the PFPO
limits liability for sex discrimination to employers. Phila., Pa. Code § 9-1103(1)(a). Plaintiff
cannot sustain a claim against Defendant Pace where the Act does not allow for individual
liability.
As it relates to Defendant Carr and Duff, Plaintiff’s PFPO claim for sex discrimination is
also dismissed. Like the PHRA, the PFPO tracks Title VII claims of the same nature. Joseph v.
Cont’l Airlines, 126 F. Supp. 2d 373, 376 n.3 (E.D. Pa. 2000). Just as the pleadings fail to
establish a Title VII claim for sex discrimination against Defendant Carr and Duff, the alleged
facts cannot sustain the instant claim. Both of Defendants’ Motions are granted as they relate to
Count VI of the Complaint.
B. Retaliation
In Count VII of the Complaint, Plaintiff alleges that Defendants engaged in various acts
of unlawful retaliation against Plaintiff, in violation of the PFPO. (ECF No. 1, ¶ 75-77).

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Defendants seek dismissal of this claim on both substantive and procedural grounds. For the
reasons that follow, this Court finds that Defendant Pace’s Motion is granted as it relates to
Count VII and Defendant Carr and Duff’s Motion is denied as it relates to Count VII.
The Pennsylvania Supreme Court has not addressed whether the PFPO requires an
exhaustion of administrative remedies prior to initiating a lawsuit on a PFPO claim. Richards v.
Foulke Assocs., 151 F. Supp. 2d 610, 613 (E.D. Pa. 2001). But courts within this circuit have
held that the PFPO does so require. Ives v. NHS Human Servs. No. 15-5317, 2016 U.S. Dist.
LEXIS 98500 *1, *7 (E.D. Pa. July 27, 2016) (citing Richards, 151 F. Supp. 2d at 616). In this
circuit, a plaintiff can satisfy the administrative filing requirements under the PFPO by filing his
or her claim with the PHRC. Id. Unlike the PHRA, the PFPO gives complainants 300 days
following the commission of an alleged unlawful practice to file an administrative complaint.
Phila., Pa. Code § 9-1112. As such, both allegations of retaliation contained in Plaintiff’s dual
filed Charges are administratively exhausted and preserved for this Court’s review.
i. Retaliation Claim Against Defendant Pace
The PFPO makes it unlawful for “any person to harass, threaten, harm, or otherwise
penalize, retaliate or discriminate in any manner against any person” because he or she asserted
his or rights under the Ordinance. Phila., Pa. Code § 9-1103(1)(g). Like the PHRA, the language
of the PFPO extends liability for retaliation to individual employees. Count VII’s caption
suggests that Plaintiff intends to bring this claim against both Defendants, but Plaintiff fails to
plead any facts upon which this Court could reasonably infer that Defendant Pace “harass[ed],
threaten[ed], harm[ed], damag[ed], or otherwise penalize[ed]” Plaintiff after Plaintiff complained
of Defendant Pace’s harassing conduct. The allegedly retaliatory conduct identified in the
Complaint and Charges of Discrimination is that which can only be attributed to Defendant Carr

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and Duff. Plaintiff does not allege that Defendant Pace had a hand in the allegedly retaliatory
credit check or the decision to terminate Plaintiff. Plaintiff’s only allegation of retaliation by
Defendant Pace was a “threatening glare,” which hardly meets the threshold pleading
requirements for retaliation. Because Plaintiff fails to plead any facts upon which this Court
could find that Defendant Pace engaged in any act of unlawful retaliation against Plaintiff,
Plaintiff’s PFPO claim against Defendant Pace is dismissed.
ii. Retaliation Claim Against Defendant Carr and Duff
As discussed above, Plaintiff dual filed two Charges of Discrimination with the EEOC
and PHRC, each which contained a separate allegation of unlawful retaliation by Defendant Carr
and Duff. To the extent that the instant claim is based upon the allegedly retaliatory credit check,
the claim is dismissed. Like the PHRA, the PFPO tracks Title VII claims of the same kind, and a
credit check is not an actionable retaliatory act under Title VII.
To the extent that the instant claim is based upon Plaintiff’s termination in January of
2015, Defendant Carr and Duff’s Motion is denied. For all of the reasons detailed in the Title VII
section above, this Court finds that the pleaded facts are sufficient to sustain a PFPO claim for
retaliation, where Plaintiff’s termination is the adverse employment action at issue.
For the foregoing reasons, Defendant Pace’s Motion is granted as it relates to Count VII,
and Defendant Carr and Duff’s Motion is denied as it relates to Count VII – only insofar as
Plaintiff’s termination is the basis of the claim.
3. Aiding and Abetting
In Count VIII of the Complaint, Plaintiff alleges that Defendants aided and abetted the
unlawful employment practices of a third party, in violation of the PFPO. (ECF No. 1, ¶ 78-80).
For all of the reasons this Court denied Plaintiff’s PHRA claim for aiding and abetting, this claim

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is also denied. Plaintiff fails to establish any unlawful conduct by Defendant Pace that Defendant
Carr and Duff can be said to have aided or abetted, and Plaintiff fails to plead sufficient facts to
establish that Defendant Pace aided or abetted any of the unlawful conduct Plaintiff successfully
pleads Defendant Carr and Duff committed. Defendants Motions are granted as they relate to
Count VIII.
IV.

Punitive Damages
Plaintiff’s prayer for relief includes a request for punitive damages, available only under

Title VII and the PFPO. (ECF No. 1, p.15). Defendant Carr and Duff argue that it is apparent on
the face of the pleadings that Plaintiff is not so entitled. (ECF No. 15-2, p. 19-20). At this early
stage, this Court is unwilling to state that as a matter of law, Plaintiff could not demonstrate the
propriety of punitive damages in this case. Plaintiff’s prayer for relief will remain as pled.

CONCLUSION
For all of the foregoing reasons, Defendant Pace’s Motion to Dismiss the Complaint is
granted in its entirety and Defendant Carr and Duff’s Motion to Dismiss the Complaint is
granted in part and denied in part. Defendant Carr and Duff’s Motion is granted as it relates to
Counts I, III, IV, V, VI, and VIII. Defendant Carr and Duff’s Motion is denied as it relates to
Counts II and VII. Plaintiff’s prayer for relief will remain as pled.
Plaintiff is granted leave to amend within fourteen (14) days of the filing of this
Memorandum and the corresponding Order that follows.

BY THE COURT:

/s/ C. Darnell Jones, II
C. Darnell Jones, II
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J.