BLASSINGAME v. SOVEREIGN SECURITY, LLC
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 8/7/17. 8/7/17 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SOVEREIGN SECURITY, LLC
August 7, 2017
In the amended complaint presently before me, plaintiff Yvette Blassingame alleges that
her employer, Sovereign Security, LLC, subjected her to sexual discrimination, a sexually hostile
work environment, retaliation, disability discrimination and negligent and intentional infliction
of emotional distress. Defendant now moves to dismiss the entire complaint under Federal Rule
of Civil Procedure 12(b)(6). For the following reasons, I will grant the motion as to the claims of
sexual discrimination, hostile work environment and intentional/negligent infliction of emotional
distress, but deny it as to the remainder of the claims.
According to the facts set forth in the amended complaint, plaintiff began working for
defendant on August 14, 2011, as a certified armed guard. Am. Compl., Dkt. No. 9, ¶ 13. She
worked forty hours per week, as well as regular additional overtime of approximately ten hours
per week. Id. ¶ 16. Because defendant was contracted by the Philadelphia Housing Authority
(PHA) to provide security services at PHA locations, plaintiff was stationed at various PHA sites
throughout Philadelphia. Id. ¶¶ 17–18.
Beginning in September 2014, plaintiff was stationed at PHA’s Information Systems
Management (ISM) Building to provide security services. Id. ¶ 19. She was one of the very few
women who regularly worked at the ISM Building and was defendant’s only employee during
her shifts. Id. ¶ 22. During her time at the ISM Building, Plaintiff reported to Mr. Richard
Brown, a PHA employee and site supervisor. Id. ¶ 20. Mr. Brown was responsible for
overseeing her day-to-day duties while she was stationed at the ISM Building. Id. ¶ 21.
In December 2015, a male PHA employee named Shannon (whose last name is
unknown), used the women’s bathroom at the ISM Building on at least six occasions while
plaintiff was occupying it. Id. ¶ 23. On several of these occasions, plaintiff came in contact with
Shannon while inside the bathroom and called out from inside the bathroom to let Shannon
known she was there so that he would leave. Id. ¶¶ 24–25. He disregarded these alerts. Id. ¶ 25.
Both the women’s and the men’s bathrooms in the ISM building are clearly and visibly labeled
as such on the exterior. Id. ¶ 26.
Sometime in early December 2015, plaintiff complained about Shannon’s use of the
women’s bathroom to both Mr. Christopher Moore, plaintiff’s direct supervisor and defendant’s
employee, and Mr. Brett Treat, an employee and manager of defendant. Id. ¶ 27. Neither Mr.
Moore nor Mr. Treat indicated to plaintiff that any corrective action would be taken and, in fact,
took no corrective action as a result of her complaint. Id. ¶¶ 28–29. Plaintiff also complained to
Mr. Brown about Shannon’s use of the women’s bathroom while plaintiff was occupying it. Id.
On December 22, 2016, Mr. Brown witnessed Shannon exit the women’s bathroom as
plaintiff was entering it. Id. ¶ 31. That same day, Mr. Brown asked plaintiff if she wanted to file
a formal complaint against Shannon. Id. ¶ 32. Plaintiff declined, but “asked Mr. Brown in good
faith to verbally counsel Shannon for creating a sexually hostile environment.” Id.
On December 31, 2015, Mr. Treat notified plaintiff that he was immediately removing
her from the ISM Building and assigning her to another site. Id. ¶ 33. When plaintiff questioned
the reason for her removal, Mr. Treat stated that Officer Kyle (last name unknown), a PHA
employee and liason between PHA and defendant, instructed Mr. Treat that plaintiff was to be
fired or, at a minimum, removed from the ISM Building due to an alleged complaint. Id. ¶ 34.
Although plaintiff asked defendant and Mr. Brown for additional information regarding the
complaint, Mr. Brown provided no such information. Id. ¶ 35. To plaintiff’s knowledge, no
investigation was made into this alleged complaint and plaintiff was not asked any questions
about it by defendant or PHA. Id. ¶ 36. When plaintiff asked Brown about the complaint, he
responded that he was not aware of it—even though it would have been customary for him to
have been made aware of it—and not to worry about it. Id. ¶¶ 37–38. Throughout her
employment with defendant, plaintiff had never received a complaint and, in fact, was often
recommended and personally requested by clients for additional shifts or special events. Id. ¶ 39.
Defendant replaced plaintiff with a male employee at the ISM Building and, on January
5, 2016, placed plaintiff at the Richard Allen site, also a PHA location, with a less favorable
work schedule. Id. ¶¶ 40–41. The Richard Allen site was undergoing construction at that time
and, therefore, had excess dirt and dust, which aggravated plaintiff’s asthma condition. Id. ¶¶ 12,
42. Defendant was aware of plaintiff’s disability before her employment began, as plaintiff had
listed her asthma diagnosis and medications on her employment application. Id. ¶¶ 43–44.
On January 5, 2016, plaintiff told Mr. Treat that she was having severe asthma
complications due to the conditions at the Richard Allen site and asked him to send a relief
person so that she could go to the emergency room. Id. ¶ 45. Even though Mr. Treat stated that
he would send a relief person, plaintiff took it upon herself to contact a co-worker to relieve her
at the Richard Allen site. Id. ¶¶ 46–47. Plaintiff then immediately went to the emergency room
at Lankenau Hospital in Wynnewood, Pennsylvania. Id. ¶ 48. Upon discharge, plaintiff
contacted Mr. Treat and gave him a summary of her diagnosis and hospital discharge
instructions, which included not being around excessive dirt and dust that could aggravate her
medical condition. Id. ¶ 50. Because of the construction at the Richard Allen site, she was
unable return to that site after the emergency room visit. Id. ¶ 51.
On January 6, 2016, defendant removed plaintiff from full-time work and placed her on
unpaid leave, claiming that there was “nothing available.” Id. ¶ 52. Beginning on January 7,
2016, defendant offered plaintiff on-call assignments at various locations from time to time while
plaintiff remained on unpaid leave. Id. ¶ 53. These on-call assignments were neither regular nor
full time, which resulted in a significant reduction in plaintiff’s hours. Id. ¶ 54. Plaintiff remains
on an unpaid leave of absence. Id. ¶ 55.
On January 14, 2016, plaintiff filed a timely written charge of discrimination against
defendant with the Equal Employment Opportunity Commission (EEOC), which was also dual
filed with the Pennsylvania Human Relations Commission (PHRC). On or about January 11,
2017, the EEOC issued plaintiff a Notice of Right to Sue. Id. ¶ 10.
On March 27, 2017, plaintiff initiated the current litigation and, on June 20, 2017, she
filed her first amended complaint. The amended complaint sets forth nine causes of action as
follows: (1) sex discrimination in violation of Title VII; (2) harassment and hostile and abusive
working environment in violation of Title VII; (3) retaliation in violation of Title VII; (4)
disability discrimination in violation of the Americans With Disabilities Act (ADA); (5) sex
discrimination in violation of the Pennsylvania Human Relations Act (PHRA); (6) harassment
and hostile and abusive working environment in violation of the PHRA; (7) retaliation in
violation of the PHRA; (8) disability discrimination in violation of the PHRA; and (9) intentional
infliction of emotional distress.
On July 6, 2017, Defendant filed the current motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), Dkt. No. 11, and plaintiff responded on July 20, 2017, Dkt. No. 12.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of
demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). The United
States Supreme Court has recognized that “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quotations omitted). “[T]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice” and “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” 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. A complaint does not show an entitlement to relief when the well-pleaded facts do
not permit the court to infer more than the mere possibility of misconduct. Id.
The Court of Appeals has detailed a three-step process to determine whether a complaint
meets the pleadings standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2014). First, the court
outlines the elements a plaintiff must plead to state a claim for relief. Id. at 365. Next, the court
must “peel away those allegations that are no more than conclusions and thus not entitled to the
assumption of truth.” Id. Finally, the court “look[s] for well-pled factual allegations, assume[s]
their veracity, and then ‘determine[s] whether they plausibly give rise to an entitlement to
relief.’” Id., quoting Iqbal, 556 U.S. at 679. The last step is “‘a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.’” Id., quoting
Iqbal, 556 U.S. at 679.
Failure to Exhaust
Defendant first argues that plaintiff has failed to exhaust her administrative remedies with
respect to her sexually hostile work environment claims set forth in Counts II and VI of the
Amended Complaint. Specifically, defendant contends that, in her charge of discrimination filed
with the EEOC and the PHRC, plaintiff checked off “retaliation” and “disability” as bases for
alleged discrimination, without ever identifying “sex” as an additional basis of discrimination.
Accordingly, defendant asserts that any sex-based discrimination claims must be dismissed. I
A Title VII plaintiff is required to exhaust all administrative remedies before bringing a
claim for judicial relief. 42 U.S.C. § 2000e–5(e); Antol v. Perry, 82 F.3d 1291, 1295 (3d
Cir.1996); DeLa Cruz v. Piccari Press, 521 F. Supp. 2d 424, 431 (E.D. Pa. 2007). To do so, the
plaintiff must “fil[e] a timely discrimination charge with the EEOC.” DeLa Cruz, 521 F. Supp.
2d at 431, citing Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984). The purpose of this
requirement is “(1) to ensure ‘that an employer is made aware of the complaint lodged against
him and is given the opportunity to take remedial action,’ and (2) to give ‘the EEOC the
Plaintiff does not contest either the dismissal of her sexual discrimination claims in
Counts I and V or the dismissal of her tortious infliction of emotional distress claim in Count IX.
Accordingly, I will grant the motion to dismiss these claims without discussion of defendant’s
opportunity to fulfill its statutory duties of eliminating unlawful practices through the
administrative process.’” O’Donnell v. Michael’s Family Rest., Inc., No. 07–5386, 2008 WL
2655565, at *2 (E.D. Pa. July 1, 2008), quoting Jackson v. J. Legis Crozer Library, No. 07–481,
2007 WL 2407102, at *5 (E.D. Pa. Aug. 22, 2007), citing Bihler v. Slinger Co., 710 F.2d 96, 99
(3d Cir.1983). 2 In Title VII actions, failure to exhaust administrative remedies is an affirmative
defense on which the defendant bears the burden of proof. Williams v. Runyon, 130 F.3d 568,
573 (3d Cir. 1997).
The administrative exhaustion requirement “is tempered by a fairly liberal construction
given to EEOC charges.” Schouten v. CSX Transp., Inc., 58 F. Supp. 2d 614, 616 (E.D. Pa.
1999). Generally, a Title VII plaintiff cannot bring claims in a civil lawsuit that were not first
included in an EEOC charge and exhausted at the administrative level. Burgh v. Borough
Counsel of Montrose, 251 F.3d 465, 469–70 (3d Cir. 2000). It is well-established that merely
checking off the box on the charge form is insufficient to exhaust it as a claim. McCutchen v.
Sunoco, Inc., No. Civ.A.01–2788, 2002 WL 1896586, at *3 (E.D. Pa. Aug. 16, 2002), aff’d 80 F.
App’x 287 (3d Cir. 2003). Rather, a plaintiff that checks off a box for a particular type of
discrimination on a Charge form, but then leaves the form bereft of any allusion to allegations of
such discrimination cannot be deemed to have exhausted that claim. Id.
“Although the PHRA does not contain an analogous [exhaustion of administrative
remedies] requirement, courts have held that the PHRA should be interpreted consistently with
Title VII.” McLaughlin v. Rose Tree Media Sch. Dist., 52 F. Supp. 2d 484, 492 (E.D. Pa. 1999)
(citations omitted). “To bring suit under the PHRA, a plaintiff must first have filed an
administrative complaint with the PHRC within 180 days of the alleged act of discrimination.”
Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997), citing 43 Pa. Cons. Stat. §§
On the other hand, the mere failure to check a specific box on the EEOC charge form is
not a fatal error. Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190, 196 & n.2 (E.D. Pa. 1994).
Rather, “[t]he most important consideration in determining whether the plaintiff’s judicial
complaint is reasonably related to his EEOC charge is the factual statement.” Id. at 197. Thus,
“if the allegations made in the complaint filed in this Court could be ‘reasonably expected to
grow out of’ those contained . . . in the EEOC charge, the pleading of the plaintiff will withstand
a motion to dismiss, as the administrative remedies available to plaintiff will have been
exhausted.” Schouten, 58 F. Supp. 2d at 616, quoting Page v. ECC Mgmt. Servs., No. 97–2654,
1997 WL 762789, at *3 (E.D. Pa. Dec. 8, 1997) (further quotations omitted). Stated differently,
where a plaintiff attempts to assert a claim at the district court level that was not raised in the
administrative charge, the claim is considered exhausted if it is “fairly within the scope of the
prior EEOC complaint, or the investigation arising therefrom.” Antol, 82 F.3d at 1295, quoting
Waiters, 729 F.2d at 237. A reasonable EEOC investigation should include claims not
specifically mentioned in the EEOC charge “where there was a close nexus between the facts
supporting the claims raised in the charge and those in the complaint.” Pourkay v. City of
Philadelphia, No. Civ.A.06–5539, 2009 WL 1795814, at *5 (E.D. Pa. June 23, 2009), citing
Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984). “In such a case,
the Court may reasonably expect an awareness on the part of the defendant that such allegations
are likely.” Schouten, 58 F. Supp. 2d at 616–17.
Plaintiff concedes that only “retaliation” and “disability” were specifically checked off on
her charge of discrimination filed with the EEOC and PHRC. Nonetheless, she asserts that the
particulars of her charge should have put the EEOC and PHRC on notice that sexual harassment
was involved. Specifically, in support of her charge, she alleged as follows:
On August 14, 2011 I was hired by Respondent as an Armed
Guard. Throughout my employment I was placed at multiple
buildings managed by the Philadelphia Housing Authority (PHA)
to perform security. From September 2014 through November
2015 I was stationed at PHA’s Information Systems Management
(ISM) building. I never had any performance issues nor was ever
disciplined. In early December 2015, a PHA employee, Mr.
Shannon LNU [last name unknown] used the women’s bathroom
while I was occupying it. I complained to his supervisor, Mr.
Richard Brown. About a week later, Mr. Shannon LNU was
caught using the woman’s restroom again. Mr. Brown asked if I’d
like to file a formal complaint. I declined and asked Mr. Brown to
verbally counsel Mr. Shannon LNU for creating a sexually hostile
environment. On December 31, 2015 Sgt. Kyle LNU of the PHA
instructed my supervisor Mr. Brad Treat that I was to be removed
from the ISM building due to an alleged employee complaint. On
January 5, 2016 Respondent placed me at another PHA site
(Richard Allen site). Due to the site undergoing construction,
creating an abundance of dirt and dust, my disability was
aggravated forcing me to visit the emergency room. Following my
hospital visit, I have yet to return to work.
Mr. Brad Treat, supervisor, removed me from my post at the ISM
building at the request of Sgt. Kyle LNU and removed me from my
post at the Richard Allen site and informed me that there [were] no
other vacant posts for reassignment.
I believe, in violation of Title VII of the Civil Rights Act of 1964,
as amended, I was reassigned to a less desirable assignment and
had my hours reduced in retaliation for opposing unlawful
harassment. Upon being transferred, I further allege being denied
a reasonable accommodation for my disability, in violation of the
Americans with Disabilities Act of 1990, as amended. Mr. Treat
failed to engage in the interactive process and placed me on an
unpaid leave of absence.
Compl., Ex. A.
Reading these allegations liberally, I find that plaintiff has not exhausted her claim of
hostile work environment. A plaintiff alleging a hostile work environment claim “must establish
that: (1) [s]he suffered intentional discrimination because of [her] [gender]; (2) the
discrimination was pervasive and regular; (3) it detrimentally affected [her]; (4) it would have
detrimentally affected a reasonable person of the same protected class in [her] position; and (5)
there is a basis for vicarious liability.” Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.
2005), quoting Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001)). “For a hostile work
environment claim to succeed, the conduct complained of must be adverse, severe, pervasive or
regular and of the kind that would have detrimentally affected a reasonable person in like
circumstances.” Harley v. U.S. Sec’y of Treasury, 444 F. App’x 594, 595 (3d Cir. 2011), citing
Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009). The Court
of Appeals found a hostile work environment claim to be within the scope of an initial EEOC
charge where the charge “alleged the plaintiff was subjected to an ‘abusive atmosphere,’ a phrase
which is interchangeable with ‘hostile work environment.’” See Barzanty v. Verizon PA, Inc.,
361 F. App’x 411, 414 (3d Cir. 2010); see also Raffaele v. Potter, No. 09–3622, 2012 WL
33035, at *5 (E.D. Pa. Jan. 6, 2012) (“[A] claim for hostile work environment is based on the
‘pervasiveness’ of the employer’s discriminatory conduct and is fundamentally different from a
claim for disparate treatment, which focuses on discrete events.”).
In this case, plaintiff’s administrative charge does not alert the agency to any severe,
pervasive or regular behavior that detrimentally affected her. Rather, she described a total of two
incidents in which “Mr. Shannon,” a PHA employee and not an employee of defendant, used the
women’s bathroom while plaintiff was occupying it. Plaintiff alleges no other sexually harassing
conduct that accompanied these events. After the first instance, plaintiff reported it to Mr.
Shannon’s supervisor, who was also not one of defendant’s employees. A week later, Mr.
Shannon was caught using the women’s bathroom again and Mr. Brown immediately acted upon
the matter, asking if plaintiff wanted to file a formal complaint. Plaintiff expressly declined to
file any such complaint, but simply asked that Mr. Shannon be counseled. Although plaintiff
used the buzzwords “sexually hostile environment,” it was solely in the context of requesting
that Mr. Shannon be made aware that his use of the women’s bathroom created such a situation.
At no point does plaintiff allege that defendant either perpetuated or permitted any ongoing
sexually hostile environment. Quite to the contrary, plaintiff’s allegations suggest that defendant
was not made aware of the situation, and that PHA, who managed the site, promptly addressed
the offensive behavior. Nothing in the charge indicates that the behavior became pervasive.
While plaintiff’s amended complaint now suggests that Mr. Shannon’s behavior was, in fact,
repeated and that defendant was notified but failed to act, no such facts were before any
administrative agency. This absence of allegations from which the agency could infer a hostile
work environment, together with plaintiff’s failure to check the box for either “sex” or
“continuing” action, compels the conclusion that plaintiff’s administrative complaint does not
“fairly encompass” a hostile work environment claim.
In light of the foregoing, I find that plaintiff has not exhausted her hostile work
environment claims (Counts II and VI). As exhaustion is a prerequisite to bringing such claims
in this court, I will grant defendant’s motion to dismiss on this ground.
Counts III and VII of the amended complaint allege claims of retaliation. Section 704(a)
of Title VII provides in pertinent part:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . 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). To establish discriminatory retaliation under Title VII, a plaintiff must
demonstrate that: (1) she engaged in activity protected by Title VII; (2) the employer took an
adverse employment action against her; and (3) there was a causal connection between her
participation in the protected activity and the adverse employment action. 3 Nelson v. Upsala
College, 51 F.3d 383, 386 (3d Cir. 1995).
Defendant now asserts that plaintiff’s retaliation claim fails for two reasons. First, it
claims that plaintiff has not alleged any protected activity. Second, it argues that plaintiff cannot
establish a causal connection between her complaints and her termination. Considering each
argument separately, I will decline to grant defendant’s motion to dismiss.
Under Title VII, it is unlawful for an employer to discriminate against an employee who
either “ . . . has opposed any practice made an unlawful employment practice by this
subchapter, or  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). Whether
the employee opposes, or participates in a proceeding against, the employer’s activity, the
employee must hold an objectively reasonable belief, in good faith, that the activity he or she
opposes is unlawful under Title VII. Moore v. City of Phila., 461 F.3d 331, 341 (3d Cir. 2006),
as amended (Sept. 13, 2006).
Under the Rule 12(b)(6) standard of review, I find that plaintiff has plausibly pled that
she engaged in protected activity. Plaintiff alleges that she was one of the very few women who
worked in her section of the ISM building. Am. Compl. ¶ 22. Beginning in December 2015, a
male employee of PHA, Shannon, used the women’s bathroom at the ISM Building site on at
least six occasions while plaintiff was occupying it. Id. ¶ 23. Plaintiff complained to her
The analysis required for adjudicating Plaintiff’s Title VII and PHRA claims is identical.
See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n. 3 (3d Cir. 2000).
Accordingly, I address the Title VII and PHRA claims jointly.
supervisors, Mr. Moore and Mr. Treat, and one of PHA’s employees, Mr. Brown. Id. ¶¶ 27, 30.
Although plaintiff declined to file a formal complaint, she asked Mr. Brown to verbally counsel
Shannon for creating a “sexually hostile environment,” thus demonstrating plaintiff’s good faith
belief that the activity she was opposing was unlawful.
In its reply brief, defendant contends that although plaintiff may have had a “good faith”
belief about the nature of Shannon’s conduct, it was not objectively reasonable as is also required
for a retaliation claim. Defendant asserts that plaintiff fails to allege that Shannon made a single
comments toward her, touched her or even did anything other than wholly ignore her, making
her current claims of harassment unounded. In support, defendant cites to a case from the
Western District of Pennsylvania in which the court found that “no reasonable person could
conclude that a few isolated incidents involving a man’s use of the women’s bathroom, without
more—particularly when one did not witness the conduct—constituted unlawful harassment or
discrimination.” Reynolds v. Port Auth. of Allegheny Cnty., No. 08-268, 2009 WL 1837917, at
*7 (W.D. Pa. June 26, 2009).
Reynolds, however, is distinguishable from the present case in several respects. In
Reynolds, the court considered the retaliation claim on a motion for summary judgment after
discovery. Id. at *1.
Moreover, the plaintiff had never seen her supervisor use the women’s
restroom, but only heard from another employee that the supervisor had urinated in the ladies’
room “on a number of occasions”—conduct that the plaintiff believed was racially
discriminatory. Id. at *6. On a single occasion, plaintiff blocked her supervisor from entering
the ladies’ room by commenting that she did not want him to enter, and later claimed that this
statement constituted protected speech. Id. at *7. The court remarked that, aside from the fact
that the plaintiff did not witness the conduct, it was not “objectively reasonable to believe that a
supervisor’s very occasional entrance into an otherwise empty ladies’ room was proscribed by
Title VII.” Id.
By contrast, the motion currently before me is not a motion for summary judgment, but
rather a motion to dismiss under Rule 12(b)(6) for which I must take all well-pled allegations in
the amended complaint as true. That amended complaint explicitly alleges Shannon used the
women’s bathroom on at least six occasions in less than a month and, unlike in Reynolds,
plaintiff came into contact with him on several occasions. Am. Compl. ¶¶ 23–25. Further,
plaintiff called out to Shannon from inside the bathroom to get him to leave, requests which he
ignored. Id. ¶¶ 24–25. Finally, plaintiff did not simply address her complaint to the offending
employee, as the plaintiff did in Reynolds, but actually spoke to both her supervisor and
Shannon’s supervisor, explaining that she felt Shannon’s actions created a sexually hostile
environment. Id. ¶¶ 27–29, 31–32. At this juncture of the case, I find that such allegations are
sufficient to plead that plaintiff engaged in protected activity for the purposes of her retaliation
To establish the requisite causal connection a plaintiff usually must prove either (1) an
unusually suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). The temporal
proximity of a retaliatory act to a plaintiff’s exercise of his or her First Amendment rights is
probative, but not dispositive, of the causation element. Estate of Smith v. Marasco, 318 F.3d
497, 512 (3d Cir. 2003); see also Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir.
1997) (stating that “temporal proximity merely provides an evidentiary basis from which an
inference can be drawn”). For temporal proximity alone to establish causation, the “timing of
the alleged retaliatory action must be ‘unusually suggestive’ of retaliatory motive before a causal
link will be inferred.” Marasco, 318 F.3d at 512, quoting Krouse v. Am. Sterilizer Co., 126 F.3d
494, 503 (3d Cir. 1997)). The Court of Appeals has suggested that a temporal proximity of two
days is sufficient to establish causation, see Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279
& n.5 (3d Cir. 2000), whereas a temporal proximity of ten days is sufficient to establish
causation only when accompanied by other evidence of . . . wrongdoing, Shellenberger v.
Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003).” Conklin v. Warrington Tsp., No. 06–
2245, 2009 WL 1227950, at *3 (M.D. Pa. April 30, 2009). “This suggests that the temporal
proximity must be measured in days, rather than in weeks or months, to suggest causation
without corroborative evidence.” Id.
In the Amended Complaint, plaintiff alleges that she complained to both her employer,
through Mr. Treat and Mr. Moore, and to Mr. Brown about Shannon’s behavior sometime in
“early December 2015.” Am. Compl. ¶¶ 27, 30. On December 22, 2015, after Shannon was
caught using the women’s bathroom, plaintiff made a request that Shannon be verbally counseled
for creating a sexually hostile environment. Id. ¶ 32. Only nine days later—and without any
obvious intervening incident besides a mysterious “complaint” against plaintiff—Mr. Treat
notified plaintiff that he was immediately removing her from the ISM building and reassigning
her. Id. ¶¶ 33–34. Although defendant argues that plaintiff includes no allegations of animus by
Mr. Treat, such allegations are unnecessary given the suggestive temporal proximity between her
complaint and the retaliatory action. 4 Moreover, defendant’s argument that “Plaintiff offers no
In its reply brief, defendant argues that I must focus on the timing between plaintiff’s
complaint to Mr. Treat in “early” December 2015 and Officer Kyle’s request to have plaintiff
transferred, rather than on plaintiff’s complaint to Mr. Brown and Officer Kyle’s request for
evidence to support that [Mr.] Treat would fabricate the complaint against her or that he had any
retaliatory animus against her for complaining about Shannon,” Def.’s Mem. Supp. Mot. to
Dismiss, ECF No. 11-1, 16, is misplaced as plaintiff has no burden to either produce evidence in
response to a motion to dismiss or discredit any possible innocent motivations for Mr. Treat’s
actions. Taking the alleged facts and all reasonable inferences therefrom in the light most
favorable to plaintiff, I find that plaintiff has plausibly pled causation between her complaint
about Shannon and her subsequent transfer.
Finally, defendant moves to dismiss plaintiff’s claims of disability discrimination in
Counts IV and VIII of the amended complaint. As I find that plaintiff adequately pleads
disability discrimination, I decline to dismiss these causes of action.
The ADA 5 was enacted in 1990 to “prevent otherwise qualified individuals from being
discriminated against in employment based on a disability.” Gaul v. Lucent Techs. Inc., 134
plaintiff’s transfer. Based on the allegations of the amended complaint, however, plaintiff’s first
expression of her belief that Shannon’s actions created a sexually hostile work environment was
her complaint to Mr. Brown on December 22, 2015, which is temporally proximate to the
December 31, 2015 request by Officer Kyle. Although such allegations will be insufficient to
establish causation at the summary judgment stage of litigation, they suffice for purposes of the
In the past, courts in this Circuit analyzed ADA and PHRA claims simultaneously,
because the “PHRA [wa]s basically the same as the ADA in relevant respects, and ‘Pennsylvania
courts . . . generally interpret the PHRA in accord with its federal counterparts.’” Rinehimer v.
Cemcolift, Inc., 292 F.3d 375, 382 (3d Cir. 2002), quoting Kelly v. Drexel Univ., 94 F.3d 102,
105 (3d Cir. 1996). The ADA amendments (ADAAA), however, relaxed the ADA’s standard
for disability effective January 1, 2009, but the Pennsylvania legislature has failed to enact a
similar amendment to the disability standard under the PHRA. Szarawara v. Cnty. of
Montgomery, 12–5714, 2013 WL 3230691, at *2 (E.D. Pa. June 27, 2013) (holding that the
PHRA has not been amended like the ADAAA to relax the standard for disability, and therefore,
it was necessary to analyze plaintiff's ADA and PHRA claims separately); Deserne v. Madlyn &
Leonard Abramson Ctr. for Jewish Life, Inc., No. 10–03694, 2012 WL 1758187, *3 n.3 (E.D.
F.3d 576, 579 (3d Cir. 1998), citing 29 C.F.R. pt. 1630, app. at 347–48 (1997). Under the ADA,
employers are prohibited from “discriminat[ing] against a qualified individual with a disability
because of the disability of such individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A prima facie case is
established by showing three elements. First, the plaintiff must allege that he is disabled within
the meaning of the ADA. Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611 (3d Cir. 2006).
Second, the employee must establish that she is a qualified individual within the meaning of the
ADA. Turner, 440 F.3d at 611. A qualified individual is “an individual with a disability who,
with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Finally, the
plaintiff must establish that he has suffered an “adverse employment decision as a result of
discrimination.” Turner, 440 F.3d at 611. An “adverse employment decision” under the ADA
“encompasses not only adverse actions motivated by prejudice and fear of disabilities, but also
includes failing to make reasonable accommodations for a plaintiff’s disabilities.” Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).
Defendant does not dispute that plaintiff suffered from a disability. It claims, however,
that plaintiff has failed (1) to make a showing that she suffered an adverse employment action
Pa. May 17, 2012) (“To date, Pennsylvania has not made parallel amendments to the PHRA or
the regulations implementing the PHRA.”). Nevertheless, while the disability standards are
different, the remaining elements of an ADA and PHRA claim are essentially the same and can
be analyzed together. Rubano v. Farrell Area Sch. Dist., 991 F. Supp. 2d 678, 689 n.7 (W.D. Pa.
Defendant, in this case, does not challenge plaintiff’s status as disabled, but rather
focuses on the other elements of the ADA and PHRA claims. Because those elements are
identical for both statutes, I analyze them together.
causally related to her disability; and (2) to allege facts that defendant unlawfully failed to
provide a reasonable accommodation. I hold that plaintiff’s claim survives a motion to dismiss.
Adverse Employment Action
Defendant first disputes plaintiff’s claim that she suffered an adverse employment action
related to her disability. Specifically, it contends that (a) plaintiff fails to allege facts that anyone
employed by defendant was aware of her asthma and (b) it was upon her request that she was
removed from the Richard Allen site and no one gave her a hard time about it.
The amended complaint, however, belies this contention, alleging that “[d]efendant was
aware of [p]laintiff’s disability before [p]laintiff’s employment with [d]efendant began in August
2011” as defendant required her to list medications and purpose, and plaintiff stated “that she
was taking medication for asthma on her employment application.” Am. Compl. ¶¶ 43–44.
Further, when she left her position at the Richard Allen site, she contacted Mr. Treat and told
him she was having severe complications from her asthma due to the conditions there. Id. ¶ 45.
Following discharge from the hospital, plaintiff contacted Mr. Treat and explained that her
medical instructions included not being around excessive dirt and dust. Id. ¶¶ 48–49. While
plaintiff voluntarily chose to leave her position at the Richard Allen site, defendant placed her on
an unpaid leave instead of moving her to a new full-time position at a different site. Id. ¶¶ 52–
53. These allegations permit a plausible inference that plaintiff suffered a reduction in hours that
was causally connected to her disability.
Failure to Accommodate or Engage in the Interactive Process
Defendant’s second argument challenges plaintiff’s claim that defendant failed to provide
her with a reasonable accommodation to allow her to perform her job. Specifically, defendant
contends that plaintiff fails to allege that she requested a reasonable accommodation or made any
representation that she needed an accommodation. I disagree and find that the amended
complaint allows the inference that plaintiff sufficiently communicated her need for reasonable
To show that an employer violated its duty to engage in the interactive process under the
ADA, an employee must show:
1) the employer knew about the employee’s disability; 2) the
employee requested accommodations or assistance for his or her
disability; 3) the employer did not make a good faith effort to assist
the employee in seeking accommodations; and 4) the employee
could have been reasonable accommodated but for the employer’s
lack of good faith.
Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 330–31 (3d Cir. 2003). “‘Once a qualified
individual with a disability has requested provision of a reasonable accommodation, the
employer must make a reasonable effort to determine the appropriate accommodation.’” Jones
v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000), quoting 29 C.F.R. Pt. 1630, App. §
1630.9, at 361. “Under the ADA, an employer discriminates against an employee by not making
‘reasonable accommodations to the known physical or mental limitations of the [employee]
unless the [employer] can demonstrate that the accommodation would impose an undue hardship
on the operation of the business of the [employer].’” Colwell v. Rite Aid, 602 F.3d 495, 504–05
(3d Cir. 2010), quoting Williams v. Phila. Hous. Auth. Police Dept., 380 F.3d 751, 761 (3d Cir.
2004) (internal quotations and citations omitted).
Notably, “[t]he law does not require any formal mechanism or ‘magic words’ to notify an
employer that an employee needs an accommodation.” Conneen, 334 F.3d at 332. The law only
requires that “[t]he employer . . . have enough information to know of ‘both the disability and
desire for an accommodation,’ or circumstances must at least be sufficient to cause a reasonable
employer to make appropriate inquiries about the possible need for an accommodation.” Id.,
quoting Taylor, 184 F.3d at 313. “Once proper notice has been provided, ‘both parties have a
duty to assist in the search for an appropriate reasonable accommodation and to act in good
faith.’” Colwell v. Rite Aid Corp., 602 F.3d 495, 507 (3d Cir. 2010), quoting Conneen, 334 F.3d
at 330 (further quotations omitted).
Notwithstanding defendant’s contrary argument, I find that the amended complaint
plausibly pleads a request for a reasonable accommodation. As noted above, plaintiff alleges
that defendant was well aware of plaintiff’s disability from the date she was hired. On the date
she left her job to go to the emergency room, she contacted her employer to indicate that she was
having severe complications from her disability due to the conditions at the Richard Allen site.
Am. Compl. ¶ 45. Following her discharge from the hospital, plaintiff told her employer that her
discharge instructions included not being around excessive dirt and dust which would aggravate
her medical condition. Id. ¶¶ 49–50. Plaintiff further avers that throughout her employment
with defendant, she had been stationed at various sites throughout Philadelphia. Id. ¶ 17. Such
allegations allow for the reasonable inferences that (a) by providing defendant with notice of
both her disability and her hospital discharge instructions, plaintiff was requesting a reasonable
accommodation of transfer to full-time work at a different work site, as she had previously; and
(b) because defendant had employees stationed at multiple work sites in Philadelphia, its refusal
to provide plaintiff with full-time work at another site constituted a failure to engage in the
interactive process. While discovery may ultimately fail to uncover sufficient evidence to
support this theory, 6 the well-pled allegations of the amended complaint require that this claim
survive Rule 12(b)(6) scrutiny.
In its reply brief, defendant attaches various documents showing that, in March 2016,
defendant actually placed plaintiff in a position at PHA Admissions, which was a position
defendant believed would not affect plaintiff’s asthma. Def.’s Reply Brief, ECF No. 13, at p. 14.
In light of the foregoing, I will grant defendant’s motion to dismiss Counts I, II, V, VI
and IX with prejudice. To the extent, however, that defendant seeks dismissal of plaintiff’s
allegations of retaliation or disability discrimination, as set forth in Counts III, IV, VII, and VIII,
I find that the amended complaint plausibly pleads these causes of action and I will deny the
motion to dismiss on those grounds.
An appropriate Order follows.
The first day that plaintiff was assigned to this new role, she claimed to have gotten her chair
caught in the floor tiles and fallen, injuring herself. Id. Plaintiff has not been able to work since
and has a worker’s compensation claim pending. Id. This evidence, according to defendant,
establishes that it accommodated plaintiff’s initial request and found her another work location,
where plaintiff would presumably still be working had she not fallen.
While defendant’s argument may ultimately be successfully in a properly-filed motion
for summary judgment after the exchange of discovery, it is not a proper basis for Rule 12(b)(6)
dismissal. As a primary matter, defendant relies on documents outside the pleadings and has not
established that I may take judicial notice of these documents for purposes of this motion.
Moreover, nothing in defendant’s reply brief or supporting documents establishes that plaintiff’s
new position was a full-time position as she had previously held. Therefore, I do not find that
this argument provides grounds for dismissal of plaintiff’s disability discrimination claims.
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