WARDLAW v. CITY OF PHILADELPHIA HUMAN SERVICE DIRECTOR et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 8/31/2016. 9/1/2016 ENTERED AND COPIES MAILED TO PRO SE.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SEP 0 1 2016
LUCY V. CHIN. Interim Clerk
THE CITY OF PHILADELPHIA HUMAN
SERVICE DIRECTOR, et al.
Plaintiff Emily Wardlaw brings this civil action pursuant to Title VII, 42 U.S.C. §§ 2000e
to 2000e-l 7, and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat.§§ 951-963,
claiming that she was discriminated against in employment based on her race, color, and gender
and retaliated against for voicing her complaints. She seeks leave to proceed informa pauperis.
The Court will grant plaintiff leave to proceed in forma pauperis and dismiss her complaint
Plaintiff was previously employed by the City of Philadelphia Streets Department. She
claims that she was subjected to discrimination and harassment in the course of her employment
because she is African-American and female. She also appears to be alleging that she was
retaliated against for complaining about the discrimination and/or harassment.
As the basis for her claims, plaintiff relies on a charge of discrimination she filed with the
Philadelphia Commission on Human Relations (PCHR) on May 24, 2016, and a charge of
discrimination she filed with the Equal Employment Opportunity Commission (EEOC) on May
23, 2016. Those charges reflect that plaintiffs claims are generally based on the following: (1) a
claim that she was harassed in May and June of2015 after complaining to Human Resources
manager Kenny Wilson about "sexism and sexual harassment" from her supervisor, Jim Tabor;
(2) a note was placed in her file reflecting that she abused sick leave, which was not removed
after she supported her absences with medical documentation; (3) a workers compensation claim
that she filed was denied, which she believes is due to retaliation; (4) between May 2015 and
August 2015, she was treated differently than male workers with respect to how she was told to
sign in; and (5) she was told to reapply for a civil service test despite having passed the test for a
Highway Construction Inspector and overheard a comment indicating that job should go to
"those men who had 2 years experience in the yard."
Plaintiff used the Court's form complaint for a plaintiff claiming employment
discrimination to bring her claims. She did not name her former employer as a defendant.
Instead, she named as defendants various individuals employed by the City of Philadelphia's
Streets Department, including her former supervisor. By checking certain locations on the form
complaint, plaintiff indicated that the allegedly discriminatory conduct occurred on April 24,
2016, that she filed a charge with the PCHR on that date, and that she received a notice of right
to sue letter from the EEOC on April 25, 2016. However, as noted above, the charges on which
her claims-. reflect that they were filed in May of 2016.
STANDARD OF REVIEW
Plaintiffs motion to proceed in forma pauper is is granted because it appears that she is
incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) requires the Court to dismiss the complaint if it fails to state a claim. To
survive dismissal for failure to state a claim, the complaint must contain "sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quotations omitted). "[M]ere conclusory statements do not suffice."
Id. The Court may also consider exhibits attached to the complaint. Buck v. Hampton Twp. Sch.
Dist., 452 F.3d 256, 260 (3d Cir. 2006). Additionally, the Court may dismiss claims based on an
affirmative defense if the affirmative defense is obvious from the complaint. See Ball v.
Famiglio, 726 F.3d 448, 459 (3d Cir. 2013). As plaintiff is proceeding prose, the Court
construes her allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
Title VII does not provide for individual liability. See Sheridan v. E.1 DuPont de
Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996). Accordingly, plaintiff cannot state a Title
VII claim against the named defendants. Plaintiff was previously informed that Title VII does
not provide for individual liability in connection with prior employment discrimination lawsuits
that she filed concerning her employment with the City of Philadelphia Streets Department. See
Wardlaw v. City ofPhi/a. Street's Dep't, 378 F. App'x 222, 225 (3d Cir. 2010) (per curiam)
("Wardlaw's claims were not actionable against the individual defendants.").
Furthermore, "[t]o bring a claim under Title VII [or the PHRA], a plaintiff must file a
charge of discrimination with the EEOC and procure a notice of the right to sue." Mandel v. M
& Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013); Burgh v. Borough Council of Borough
of Montrose, 251F.3d465, 470-71 (3d Cir. 2001). Although the complaint alleges that plaintiff
received a right to sue letter on April 25, 2016, plaintiffs claims are instead entirely predicated
on charges of discrimination that were filed in May of2016. Accordingly, it appears that
plaintiff has not yet exhausted her claims administratively and procured a notice of right to sue
letter. See Wardlaw, 378 F. App'x at 226 ("Wardlaw's complaint also did not state a claim
against the City under Title VII because she did not allege that she had satisfied a precondition to
her suit-the prior submission of her claim to the EEOC."). The Court will therefore dismiss
this action without prejudice to plaintiff refiling her claims against an appropriate defendant after
she exhausts her administrative remedies.
For the foregoing reasons, the Court will dismiss plaintiffs complaint without prejudice.
An appropriate order follows, which shall be docketed separately.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?