ROBERTS v. HEALTH PARTNERS PLANS, INC.

Filing 9

MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION TO DISMISS IS GRANTED AND THIS ACTION IS DISMISSED WITHOUT PREJUDICE. PLAINTIFF MAY FILE AN AMENDED COMPLAINT BY 8/15/17; ETC.. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 8/3/17. 8/3/17 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SYREETA ROBERTS
Plaintiff
v.
HEALTH PARTNERS PLANS, INC.
Defendant

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CIVIL ACTION
NO. 17-0297

NITZA I. QUIÑONES ALEJANDRO, J.

AUGUST 3, 2017

MEMORANDUM OPINION
INTRODUCTION
Plaintiff Syreeta Roberts (“Plaintiff”), an African-American woman who was employed
by Health Partners Plans, Inc. (“Defendant”), filed an employment discrimination action against
Defendant pursuant to 42 U.S.C. § 1981 (“§1981”), asserting claims for discrimination,
retaliation, and hostile work environment, each on the basis of race, as well as a state law breach
of contract claim. [ECF 1]. Before this Court is Defendant’s motion to dismiss, filed pursuant to
Federal Rule of Civil Procedure (“Rule”) 12(b)(6), seeking the dismissal of all claims against it
for failure to state a claim on which relief can be granted. [ECF 7]. Plaintiff has opposed the
motion. [ECF 8]. The issues presented have been fully briefed by the parties and, therefore, the
motion is ripe for disposition.
For the reasons stated herein, Defendant’s motion to dismiss is granted.
BACKGROUND
When ruling on a motion to dismiss, this Court must accept as true all the factual
allegations in Plaintiff’s complaint, and construe the complaint in the light most favorable to the
Plaintiff. Fowler v. UMPC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v.

Iqbal, 556 U.S. 662, 677 (2009)). The relevant allegations in Plaintiff’s complaint are
summarized as follows:
Plaintiff, an African-American woman, worked as an at-will employee for
Defendant as a Claims Examiner from March 31 to November 7 or 9, 2014.
(Compl. ¶¶12-14, 23, 28). Plaintiff had several health issues and was told that she
needed surgery, which would require her to miss six to eight weeks of work. (Id.
at ¶¶15-17). Plaintiff was not eligible for benefits under the Family and Medical
Leave Act. (Id. at ¶24). Defendant’s human resources department informed
Plaintiff that she needed to provide “medical proof” of her need for surgery. (Id.
at ¶16). Plaintiff submitted a physician’s note confirming her need for surgery,
which was scheduled for November 10, 2014. (Id. at ¶17). Defendant denied her
request for leave. (Id. at ¶18). Plaintiff contends that she had no choice but to have
the surgery on November 10, 2014, and that she was fired on either November 7
or 9, 2014. (Id. at ¶¶10, 19, 23).
Plaintiff alleges that her “termination, harassment, hostile work
environment, and discrimination” were based on both (1) her need for leave for
surgery and recovery time and (2) her race. (Id. at ¶36). She alleges that “[o]ther
non African American (sic) workers were not subject to the same discrimination.”
(Id. at ¶26). Plaintiff also alleges that she had a contractual right to an unpaid
leave of absence pursuant to provisions in Defendant’s Employee Handbook, an
excerpt of which she attached to her complaint. The excerpt provides: “Unpaid
Leave of Absence: At the discretion of department management and Human
Resources, you may be granted a personal leave of absence without pay for up to
90 days. All requests must be submitted in writing and approved in advance by
your supervisor . . . .” (Id. at ¶20; Compl. Ex. A at 2).
LEGAL STANDARD
When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court
“must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions.” Fowler, 578 F.3d at 210-11 (citing Iqbal, 556 U.S. at 677). The court must
determine whether the plaintiff has pled facts sufficient to show a plausible entitlement to relief.
Fowler, 578 F.3d at 211. If the pled facts only allow the court to infer the mere possibility of
misconduct, then the complaint has only alleged, and not shown, that the plaintiff is entitled to
relief. Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)) (emphasis added). Thus, the plaintiff
“must allege facts sufficient to ‘nudge [his or her] claims across the line from conceivable to

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plausible.’” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
After construing the complaint in the light most favorable to the plaintiff, if the court finds that
the plaintiff could not be entitled to relief, it can dismiss the claim. Fowler, 578 F.3d at 210.
DISCUSSION
In its motion to dismiss, Defendant argues that Plaintiff has failed to state any viable
§1981 claims because she did not allege facts sufficient to establish racial discrimination,
retaliation, or harassment. Defendant also contends that Plaintiff failed to state a viable breach of
contract claim because she was an at-will employee, and because the source of Plaintiff’s
purported contractual rights (an employee handbook) does not establish contractual rights, as a
matter of law. These arguments will be acknowledged seriatim.1
Employment discrimination claims under §1981 require a plaintiff to first allege facts
sufficient to establish the prima facie elements of a claim. Castleberry v. STI Grp., __ F.3d __,
2017 WL 2990160, at *2 (3d Cir. July 14, 2017). This Court applies this threshold standard to
each of Plaintiff’s claims below.

Defendant also argued that dismissal is warranted on the grounds that Plaintiff’s allegations
suggest an additional, non-discriminatory motivation for Defendant’s actions. The decision of this Court,
on which Defendant relies for this argument, does not provide such a basis for dismissal. In Dixon v.
Women’s Christian Alliance Foster Care Agency, this Court held that the discrimination against a
plaintiff must be on the basis of their own race, as opposed to the race of another individual to whom the
plaintiff had pledged support; it did not establish any rule pertaining to pleadings of alternative, nondiscriminatory reasons for an employer’s adverse actions. Dixon, 2014 WL 5393541, at *11 (E.D. Pa.
Sept. 16, 2014).
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Section 1981 Discrimination Claims
Defendant moves to dismiss Plaintiff’s §1981 discrimination claims on the grounds that
Plaintiff failed to allege facts sufficient to show that Defendant discriminated against her on the
basis of her race. Specifically, Defendant argues that Plaintiff failed to allege facts to establish
that other similarly situated individuals outside of Plaintiff’s protected class were treated
differently, in order to give rise to an inference of discrimination.
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed
by white citizens.” 42 U.S.C. § 1981. As such, §1981 prohibits racial discrimination in the
formation and enforcement of contracts, including employment contracts. CBOCS West, Inc. v.
Humphries, 553 U.S. 442, 454-55 (2008); St. Francis College v. Al-Khazraji, 481 U.S. 604, 609
(1987). To assert a viable §1981 claim, a plaintiff must allege facts sufficient to establish that:
(1) the plaintiff is a racial minority, (2) the defendant intended to discriminate against the
plaintiff on the basis of race, and (3) the discrimination concerned an activity enumerated in
§1981. Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 797 (3d Cir. 2010). Section
1981 “can only be violated by intentional discrimination,” thus, a plaintiff must allege a specific
factual basis to create an inference of a defendant’s intent to discriminate. Ocasio v. Lehigh
Valley Family Health Ctr., 92 F. App’x 876, 880 (3d Cir. 2004) (citing General Bldg.
Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 391 (1982)); Frederick v. Southeastern
Pennsylvania Transp. Auth., 892 F. Supp. 122, 125 (E.D. Pa. 1995). Further, the “intentional”
requirement cannot be satisfied with “vague and conclusory allegations” in the complaint.
Frederick, 892 F. Supp. at 125.

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Here, a careful review of her complaint reveals that Plaintiff has failed to allege any facts
to establish a plausible §1981 claim of intentional racial discrimination. A liberal reading of the
complaint suggests that Plaintiff purported to allege two unlawful discriminatory employment
actions: (1) wrongful termination and (2) disparate treatment in the form of the denial of an
employment benefit. Plaintiff avers in two conclusory paragraphs that her “termination,
harassment, hostile work environment, and discrimination” were based on her race. (Compl.
¶¶25, 36). However, she does not allege any facts to support either this assertion or an inference
that could lead to this conclusion. At most, she has alleged that she is a racial minority, that
Defendant denied her request for unpaid leave, that Defendant terminated her, and that she
believes both of those actions were taken because of her race. These “vague and conclusory
allegations,” however, are insufficient to show that Defendant intentionally discriminated against
Plaintiff on the basis of her race. Frederick, 892 F. Supp. at 125; see also Howard v. Blalock
Elec. Serv., Inc., 742 F. Supp. 2d 681, 702 (W.D. Pa. 2010) (“An inference of race-based
discrimination cannot arise simply from an employee’s subjective belief that his or her race
somehow influenced the challenged employment action.”).
Defendant further argues that Plaintiff did not sufficiently plead the existence of other
similarly situated individuals outside of Plaintiff’s protected class as a means of establishing the
intentional discrimination element. This Court agrees and finds that the facts pled are insufficient
to establish such a claim.2 Plaintiff’s sole allegation that employees of other races simply “were

To the extent that Defendant intended to argue that Plaintiff’s failure to plead facts sufficient to
utilize the “similarly situated” avenue is, by itself, fatal to Plaintiff’s claim, such an argument is incorrect.
This Court recognizes that there are alternative avenues by which a plaintiff can satisfy the intentional
discrimination element. Plaintiff is not required to use the “similarly situated individuals” avenue, so long
as she alleged facts that “in some other way” established circumstances that could give rise to an
inference of intentional discrimination. Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 274 (3d Cir.
2010). Notwithstanding, Plaintiff did not plead any facts to establish this alternative avenue.
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not subject to the same discrimination,” (id. at ¶26), is a legal conclusion disguised as a factual
allegation and is, therefore, insufficient to support an inference of intentional discrimination by
way of similarly situated individuals. See Gross v. R.T. Reynolds, Inc., 487 F. App’x 711, 716-17
(3d Cir. 2012) (holding that conclusory allegations of racial favoritism and preferential treatment
of non-minority employees are insufficient to support an inference of intentional discrimination
by way of similarly situated individuals, in the absence of additional allegations as to how the
defendant specifically treated the non-minority employees differently than the plaintiff).
Plaintiff’s complaint is devoid of any allegations, for example, that there were other employees
outside of Plaintiff’s protected class (1) who were granted unpaid leave under similar
circumstances, or (2) whose requests for unpaid leave were denied but the denial was not
followed by termination. In the absence of any similar allegations, Plaintiff has not alleged facts
sufficient to give rise to an inference of intentional discrimination based on Defendant’s
treatment of similarly situated individuals. This deficiency, coupled with the absence of any
other facts that could suggest an inference of intentional discrimination, necessitates this Court’s
conclusion that Plaintiff failed to plead facts sufficient to show that Defendant intended to
discriminate against Plaintiff on the basis of race. As such, Plaintiff’s §1981 discrimination
claims against Defendant are dismissed.
Section 1981 Retaliation Claim
Defendant argues that Plaintiff did not plead any facts to support a §1981 retaliation
claim. Notably, in her response to the motion to dismiss, Plaintiff does not address this argument.
Notwithstanding, §1981 encompasses claims of an employer’s retaliation against an employee
who has complained about a violation of §1981 rights. CBOCS West, Inc., 553 U.S. at 445. To
assert a §1981 retaliation claim, a plaintiff must allege facts sufficient to show that: (1) the

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plaintiff engaged in a “protected activity,” (2) the defendant took an adverse employment action
against the plaintiff, and (3) a causal connection existed between the plaintiff’s protected activity
and the adverse action. Castleberry, 2017 WL 2990160, at *5. For §1981 retaliation claims, a
protected activity is the act of complaining about “direct racial discrimination” that would itself
amount to a §1981 violation, or otherwise acting in an attempt to protect or secure §1981 rights.
CBOCS West, Inc., 553 U.S. at 452; McClain v. Avis Rent a Car Sys. Inc., 648 F. App’x 218, 224
(3d Cir. 2016). Thus, “a plaintiff must demonstrate that there had been an underlying [§]1981
violation” about which the plaintiff complained. Castleberry, 2017 WL 2990160, at *5; Estate of
Oliva, 604 F.3d at 798. In so complaining, the plaintiff must have had a good faith, reasonable
belief that a violation existed. Castleberry, 2017 WL 2990160, at *5. Further, for an individual’s
complaint about an underlying §1981 violation to constitute a “protected activity,” the person
must have complained about racial discrimination, as opposed to mere unfair treatment.
McClain, 648 F. App’x at 224.
Here, although not entirely clear, Plaintiff appears to contend that she was terminated in
retaliation for requesting unpaid leave, and that the denial of her unpaid leave request was based
on racial discrimination. Seemingly, the denial of Plaintiff’s leave request is the requisite “direct
racial discrimination.” Absent from the complaint, however, is any allegation that Plaintiff
complained about this direct discrimination. Thus, there is no complaint, i.e. no “protected
activity,” to which the alleged retaliation was taken in response. The complaint is devoid of any
allegation, for example, that Plaintiff confronted or complained to her employer for denying her
request because of her race, or that she made any other complaints of racial discrimination.
Consequently, as Plaintiff pled no protected activity, she also did not, and could not, plead a
causal connection between a protected activity and the adverse action, i.e. her termination. In

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light of these deficiencies, this Court finds that Plaintiff failed to plead facts sufficient to
establish a §1981 retaliation claim and, therefore, that claim is dismissed.
Section 1981 Hostile Work Environment Claim
As to Plaintiff’s §1981 hostile work environment claim, Defendant argues that Plaintiff
did not allege any facts to support such a claim. Plaintiff again fails to address this argument.
Notwithstanding, to assert a viable §1981 hostile work environment claim, a plaintiff must allege
facts sufficient to show that: (1) the defendant intentionally discriminated against the plaintiff
because of race, (2) the discrimination was severe or pervasive, (3) the discrimination had a
detrimental effect on the plaintiff, (4) the discrimination would have a detrimental effect on a
reasonable person in the plaintiff’s same position and of the plaintiff’s same race, and (5) the
existence of respondeat superior liability. Castleberry, 2017 WL 2990160, at *2. Isolated
incidents of harassment, unless extremely serious, do not constitute a hostile work environment.
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Castleberry, 2017 WL 2990160, at
*3. For a single, isolated incident to be “extremely serious,” “a plaintiff must plead the incident
to ‘be [so] extreme [as] to amount to a change in the terms and conditions of employment.’”
Castleberry, 2017 WL 2990160, at *3 (citing to Faragher, 524 U.S. at 788).
Here, Plaintiff’s hostile work environment claim fails as a matter of law because Plaintiff
failed to plead any facts to establish a hostile work environment. Nowhere in the complaint did
Plaintiff allege anything beyond a bald assertion that a hostile work environment existed, or a
mere recitation of the elements of a hostile work environment cause of action. Indeed, the only
five paragraphs in the complaint which could even remotely be construed as pertaining to a
hostile work environment are the following:


“At all times material hereto, Plaintiff was subjected to severe and
pervasive harassment as enumerated infra.” (Compl. ¶6).

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

“At all times material hereto, management aided and abetted the
aforementioned retaliation, hostile work environment[,] and discrimination
to which Plaintiff was subjected.” (Id. at ¶31).



“The aforementioned conduct of Defendant[] was materially adverse and
would dissuade a reasonable worker from exercising and/or attempting to
exercise their rights and benefits under the law.” (Id. at ¶32).



“As a direct and proximate result of Defendant’s aforesaid acts and
omissions, the hostile work environment which was created thereby . . . .”
(Id. at ¶34).



“The conduct of Defendant[] . . . violated [§1981] as Plaintiff’s
termination, harassment, hostile work environment, and discrimination
[were] based upon her need for leave to have required surgery and
recovery time, based upon her race, and was a direct interference with her
contract . . . .” (Id. at ¶36).

This Court is not required to accept such conclusory statements. See Twombly, 550 U.S. at 555;
see also Thompkins v. Mercy Philadelphia Hosp., 2010 WL 3719099, at *3 (E.D. Pa. Sept. 20,
2010) (holding that a plaintiff’s complaint which simply asserted that she was subject to
“regular, pervasive, and persistent harassment” and a “hostile work environment,” and did not
assert that a defendant’s actions interfered with the plaintiff’s ability to perform her job, was
insufficient to sustain a hostile work environment claim).
Plaintiff did not aver that any occurrences created a hostile work environment, nor does
she allege any type of pervasive treatment. The only two occurrences of discrimination that
Plaintiff even mentions in the entire complaint are her termination and the denial of a claimed
benefit. Even if Plaintiff had asserted that either of these occurrences constituted an isolated,
severe incident, such assertions would be without merit. Termination is a discrete act, and is not

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a component of a hostile work environment claim.3 Santee v. Lehigh Valley Health Network,
Inc., 2013 WL 6697865, at *6-7 (E.D. Pa. Dec. 19, 2013). Termination itself is not harassing
conduct, and while it can be an instance of disparate treatment, it does not create a hostile work
environment because it eliminates the existence of a work environment all together.4 While
termination can speak to the detrimental effect element of a hostile work environment claim, it is
not proof of the severe or pervasive harassment element itself. Bartosh, 259 S.W.3d at 324 n. 14.
Further, an isolated incident must have been so severe that it altered the conditions of
employment. Castleberry, 2017 WL 2990160, at *3 (citing to Faragher, 524 U.S. at 788). Since
termination ends the employment, a work environment ceases to exist and no conditions remain
which could be altered. Knowles v. Trans Union LLC, 2005 WL 20376, at *8 n. 8 (N.D. Ill. Jan.
4, 2005). For these reasons, Plaintiff’s termination alone is inadequate to establish the severe or
pervasive discrimination element.
The denial of an alleged benefit, like termination, is also an isolated instance and would
need to meet the “extremely serious” severity threshold in order to be actionable. For an isolated
incident to be “extremely serious,” “a plaintiff must plead the incident to ‘be [so] extreme [as] to
amount to a change in the terms and conditions of employment.’” Castleberry, 2017 WL
2990160, at *3 (citing to Faragher, 524 U.S. at 788). Since Plaintiff pled no such allegation, the
Rather, “[termination] in itself constitutes a separate actionable unlawful employment practice.”
Mandel v. M&Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113-14 (2002)).
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See Jones v. Glaxosmithkline, LLC, 755 F. Supp. 2d 138, 153 n. 12 (D.D.C. 2010) (“Harassment
and termination are different events: for instance, one occurs during employment and the other ends
employment.”); Wallin v. THC-Chicago, Inc., 2004 WL 2535283, at *7 (N.D. Ill. Sept. 23, 2004)
(holding that termination is not an act creating a hostile work environment, but rather an example of
disparate treatment between an employee and employer, and, therefore, not part of a hostile work
environment claim); Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 324 (Tex. App. 2008)
(holding that termination does not qualify as a predicate act supporting hostile work environment claims
because termination itself is not harassing conduct).
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denial of an alleged benefit, in this case, is inadequate to establish the severe or pervasive
discrimination element.
In light of the sparsity of any factual allegations pertaining to a hostile work environment
claim, and the aforementioned specific deficiencies, this Court concludes that Plaintiff failed to
allege facts sufficient to establish a §1981 hostile work environment claim. Therefore, the claim
is dismissed.
Leave to Amend
In her response to the motion to dismiss, Plaintiff requested leave to file an amended
complaint, should this Court find that her original complaint failed to state a claim. Although
Plaintiff did not follow the “settled rule” of this Circuit for requesting leave to amend by
submitting a draft amended complaint, Fletcher-Harlee Corp. v. Pote Concrete Contractors,
Inc., 482 F.3d 247, 252-53 (3d Cir. 2007), this Court finds that allowing Plaintiff the opportunity
to amend would not be inequitable or futile.5 Therefore, Plaintiff’s request is granted and
Plaintiff has leave to file an amended complaint to address the noted deficiencies.
State Law Breach of Contract Claim
Defendant also argued that Plaintiff did not plead facts sufficient to assert a state law
breach of contract claim. At this time, this Court declines to exercise supplemental jurisdiction
over this claim in accordance with 28 U.S.C § 1367(c),6 as it has dismissed all of the federal
claims on which the breach of contract claim would rely for jurisdiction. In the event that
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When a complaint is subject to 12(b)(6) dismissal, district courts should generally permit
opportunity to amend unless an amendment would be inequitable, or otherwise unjust by way of futility,
bad faith, or undue delay. Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006).
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Section 1367(c) gives district courts the discretion to decline to exercise supplemental jurisdiction
over state law claims after the court has dismissed all of the federal constitutional claims over which it
had original jurisdiction. See Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009).

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Plaintiff files an amended complaint that asserts viable federal claims, this Court will consider
whether to exercise supplemental jurisdiction over any state law claims raised in that amended
complaint.
CONCLUSION
For the reasons stated herein, Defendant’s motion to dismiss is granted, and Plaintiff’s
federal claims against Defendant are dismissed. Should Plaintiff choose to file an amended
complaint, she has fourteen days from the date of the docketing of this Memorandum Opinion
and accompanying Order in which to do so. An Order consistent with this Memorandum Opinion
follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.

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