REID et al v. TEMPLE UNIVERSITY HOSPITAL EPISCOPAL CAMPUS et al

Filing 24

MEMORANDUM AND ORDER THAT ALL COUNTS ARE DISMISSED AS TO DEFENDANT TEMPLE UNIVERSITY. COUNT II "RETALIATION UNDER THE FALSE CLAIMS AND DODD-FRANK ACTS" ON BEHALF OF PLAINTIFF REID IS DISMISSED; ETC.. SIGNED BY HONORABLE HARVEY BARTLE, III ON 11/6/17. 11/7/17 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CORONE REID, et al.
v.
TEMPLE UNIVERSITY HOSPITAL
EPISCOPAL CAMPUS, et al.

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CIVIL ACTION

NO. 17-2197

MEMORANDUM
Bartle, J.

November 6, 2017
Plaintiffs Corone Reid and Donny Odey commenced this

action against defendants Temple University Hospital Episcopal
Campus (“Episcopal”), Temple University Health System, Inc.
(“TUHS”), Temple University (“TU”), and six individuals employed
by Episcopal:

(1) Chief Medical Officer William Dubin;

(2) Unit Director Pedro Miazzo; (3) Director of Nursing Barbara
Gennello; (4) Nurse Manager Eric Dutko; (5) Assistant Hospital
Director of Human Resources Clara Galati; and (6) Nurse Manager
Yasser Al-Khatib.

Specifically, plaintiffs have asserted the

following causes of action:
•

Count I: Discrimination under 42 U.S.C. § 1981 on
behalf of Reid against defendants Episcopal, TUHS,
TU, Dubin, Miazzo, Gennello, Dutko, and Galati.

•

Count II: Retaliation under the False Claims Act,
31 U.S.C. § 3730(h) on behalf of Reid against
defendants Episcopal, TUHS, TU, Dubin, Miazzo,
Gennello, Dutko, and Galati.

•

Count III: Common law breach of fiduciary duty
claim on behalf of Reid against defendants

Episcopal, TUHS, TU, Dubin, Miazzo, Gennello, Dutko,
and Galati.
•

Count IV: Discrimination under 42 U.S.C. § 1981 on
behalf of Odey against defendants Episcopal, TUHS,
TU, and Al-Khatib.

Plaintiffs seek back and front pay, compensatory and punitive
damages, attorneys’ fees and costs, and any other appropriate
form of relief.
Before the court is the partial motion of defendants
to dismiss the amended complaint under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
I.
When deciding a Rule 12(b)(6) motion, the court must
accept as true all factual allegations in the complaint and draw
all inferences in the light most favorable to the plaintiff.
See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64
(3d Cir. 2008).

We must then determine whether the pleading at

issue “contain[s] 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) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim must do

more than raise a “mere possibility of misconduct.”

Fowler v.

UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal,
556 U.S. at 679).

Under this standard, “[t]hreadbare recitals

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of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678.

On a motion to dismiss for failure to state a claim, the court
may consider “allegations contained in the complaint, exhibits
attached to the complaint, and matters of public record.”
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993) (citing 5A Charles Allen
Wright & Arthur R. Miller, Federal Practice and Procedure § 1357
(2d ed. 1990)).
II.
The following facts from plaintiffs’ amended complaint
and its attached exhibits are taken as true for present
purposes.

Plaintiff Reid is a black woman of Jamaican national

origin who was employed as a registered nurse at Episcopal from
2007 through November 2015.

During her tenure at Episcopal,

Reid received positive performance reviews and had no prior
history of discipline.

Reid states that she was a strenuous

advocate for patient rights as well as the rights of fellow
staff.

Consequently, she regularly made both formal and

informal complaints regarding what she perceived to be negligent
or substandard patient care and working conditions at Episcopal.
According to Reid, her relationship with upper management
steadily declined over time due to the continuous stream of
notices she sent regarding Episcopal’s failure to comply with
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its own policies and to maintain adequate conditions for
patients and staff.
In particular, Reid became increasingly concerned with
Episcopal’s failure to implement properly its Treatment Plan and
Review Policy (“TPARP”), which governed the process and
substance related to patient treatment plans.

According to

Reid, defendants Dubin and Miazzo breached the TPARP by failing
to participate in TPARP meetings and by delegating the
performance of their duties under the TPARP to other staff.
Reid also alleges that it was a common practice to backfill the
forms required under the TPARP by filling in patient information
at the time of release, which in many cases occurred days or
even months after the form should have been completed.

As a

result, patients received services that were not medically
necessary or appropriate, including improper medication.

The

failure to implement the TPARP increased the duration of patient
stays and the frequency of patient readmissions, which in turn
allegedly led to increased revenue for Episcopal.
The amended complaint together with its attached
exhibits details the events leading up to Reid’s termination.
While working a night shift on November 4, 2015, Reid became
aware of a patient who she believed needed medication to stop
itching.

Benadryl had already been ordered for this patient for

another purpose, but administration of the drug for a new
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purpose required a physician’s approval.

At Reid’s request,

another nurse who was working with Reid telephoned the resident
psychiatrist on call to request permission to administer
Benadryl for the patient’s itching.
the resident stated:

According to that nurse,

“OK, and I will be up there later.”

After

the nurse conveyed this information, Reid administered the
Benadryl to the patient.
The resident’s version of this telephone call differs.
The resident states she was informed on the call that Benadryl
had already been administered for the patient’s itching and was
asked to put in an order for the medication.

The resident

replied that she would have to come to the unit to examine the
patient.

After doing so, the resident determined that

administration of Benadryl for the itching was not warranted and
refused to enter an order for the medication.

The resident

claims that Reid then became irate, raised her voice, and
attempted to intimidate her.
The resident reported this incident to defendant
Dutko.

On November 9, 2015, Dutko called Reid into his office

and informed her that she was being terminated immediately.
Dutko provided Reid with a written statement that identified the
grounds for Reid’s termination under Episcopal’s Corrective
Act/Discipline Policy as violation of Work Rule 1, which
prohibits physical or verbal abuse of other staff or other
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significant unprofessional conduct, and Work Rule 7, which
relates to gross neglect of duties.

Both violations are grounds

for immediate discharge under the policy.

Reid’s union

submitted a grievance challenging her discharge.

On January 26,

2016, defendant Galati issued a letter denying the grievance.
In doing so, Galati cited only Reid’s allegedly gross neglect of
duties, in violation of Work Rule 7.
Reid then proceeded to arbitration.

After a hearing,

the arbitrator concluded that Reid was discharged without just
cause in violation of her collective bargaining agreement.
Specifically, the arbitrator found that Reid violated
Episcopal’s Medication Order Policy and Verbal Order/Telephone
Policy when she administered the Benadryl to the patient.

Those

policies state that “[v]erbal orders are only permissible when a
patient requires unanticipated care that should not be delayed
until a written order can be obtained.”

They also provide that

verbal orders may only be given by a resident or fellow to a
nurse and that all verbal telephone orders will be documented
and read back to the practitioner for confirmation.

The

arbitrator reasoned that Reid should not have sought a verbal
order to administer the Benadryl because it was not an emergency
situation, and that Reid should not have relied on another nurse
to speak with the resident.

The arbitrator declined to address

the issue of whether Reid had been verbally abusive or
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unprofessional with the resident since the hospital had failed
to cite that reason in its January 26, 2016 letter denying
Reid’s grievance.
Although the arbitrator found Reid violated Episcopal
policy, he concluded that her termination was not supported by
just cause.

The arbitrator cited several mitigating factors,

including Reid’s sincere belief that her actions were in the
best interests of the patient, her excellent performance record
leading up the night at issue, and the fact that the other nurse
involved had received no discipline.

In addition, the

arbitrator found that Reid was denied due process when Episcopal
terminated her without first providing to her an opportunity to
respond to the charges.

As a result of these findings, the

arbitrator ordered Reid reinstated without back pay.

Reid

declined to return to the position.
Plaintiff Odey is a black man of Nigerian national
origin who was employed as a crisis response technician at
Episcopal from 2001 through May 2015.

Odey’s duties included

processing patient admissions, performing triage work, and
making rounds to check on patients.

According to the complaint,

Odey’s work environment changed dramatically when defendant
Al-Khatib, who is of Lebanese ethnicity, became his manager in
2012.

Sometime in August or September 2014, Odey became

involved in a dispute with another nurse.
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That nurse called

Odey a “knucklehead, bastard, asshole, African, motherfucker,”
and informed Odey that he was going to make sure Odey was fired
and would “send his black ass back to Africa.”
the incident to his supervisor, Al-Khatib.
responded:

Odey reported

Al-Khatib allegedly

“If you don’t want to work here any more, there are

many doors and you can walk out.

You can walk out any of these

doors, or I am going to do everything within my power to get rid
of you so you can go back to Africa.”
A few months later, Odey had a dispute with a fellow
crisis response technician about the procedure for handling an
involuntary patient admission.

The technician reported the

incident to Al-Khatib, who informed Odey that he would be
terminated if he became involved in any other controversy.
On May 28, 2015, Odey was assigned to conduct rounds
at 6:00 p.m. and 6:30 p.m.
round.

Odey failed to conduct his 6:00 p.m.

At 6:15, Odey reviewed the round sheet and saw that

another technician had initialed next to the 6:00 round.
According to Odey, it was common for technicians to cover for
each other on round duty if the responsible technician was
involved in other work, so Odey took no further action as to the
6:00 p.m. round.

Odey then signed his initials next to the

6:30 p.m. round without actually conducting any round check.
Another technician failed to conduct the 7:00 p.m. round check.
During the 7:30 p.m. round check, it was discovered that a
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patient was missing and had left the premises at 5:40 p.m. by
slipping out a door behind a hospital secretary.
this incident, Odey was immediately terminated.

As a result of
The two other

technicians involved, who were African-American, were not
disciplined.

The secretary who failed to notice the patient

leaving the building and who is Caucasian also was not
disciplined.
III.
As an initial matter, defendant TU asserts that all
claims against it should be dismissed because plaintiffs have
not alleged any factual content that would allow the court to
draw the reasonable inference that TU is in any way involved in
the conduct at issue in this matter.

Plaintiffs have not

opposed the motion to dismiss TU.
Accordingly, the motion to dismiss TU from this action
will be granted.
IV.
Defendants Episcopal, TUHS, Dubin, Miazzo, Gennello,
Dutko, and Galati assert that Reid’s claim in Count II of the
amended complaint for retaliation under the False Claims Act,
31 U.S.C. § 3730(h), should be dismissed.

Section 3730(h)(1)

states:
Any employee, contractor, or agent shall be
entitled to all relief necessary to make
that employee, contractor, or agent whole,
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if that employee, contractor, or agent is
discharged, demoted, suspended, threatened,
harassed, or in any other manner
discriminated against in the terms and
conditions of employment because of lawful
acts done by the employee, contractor, agent
or associated others in furtherance of an
action under this section or other efforts
to stop 1 or more violations of this
subchapter.
This “whistleblower” provision protects employees who assist the
government in prosecuting and investigating False Claims Act
violations.

Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d

176, 185-86 (3d Cir. 2001).

A plaintiff asserting a cause of

action under § 3730(h) must plead that:

(1) she engaged in

protected conduct, i.e. lawful acts to investigate, prepare, or
otherwise pursue a qui tam action or lawful acts to stop
violations of the False Claims Act; and (2) that she was
discriminated against because of her protected conduct.
Id. at 186.

To establish that she was discriminated against

because of her protected conduct, a plaintiff must allege that:
(1) the employer had knowledge of the protected conduct; and (2)
the employer’s retaliation was motivated, at least in part, by
the employee’s engagement in the protected conduct.

Id.

This knowledge prong requires that the employee put
the employer on notice of the “distinct possibility” of False
Claims Act litigation.

Hutchins, 253 F.3d at 188.

Notice to an

employer of the “distinct possibility” of litigation is

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essential because without knowledge that an employee is
contemplating a False Claims Act suit, there would be no basis
to conclude that the employer acted out of a desire to
retaliate.

Id.

Mere complaints about job dissatisfaction or

regulatory violations generally are not sufficient to put the
employer on notice.

Id. (citing U.S. ex rel. Yesudian v. Howard

Univ., 153 F.3d 731, 743 (D.C. Cir. 1998)).

Instead, the notice

must be sufficient for the employer reasonably to fear that the
employee is contemplating filing a False Claims Act action or
reporting the employer to the government for fraud.

Id. (citing

Mann v. Olsten Certified Healthcare Corp., 49 F. Supp. 2d 1307,
1314 (M.D. Ala. 1999)).
The allegations set forth by Reid are similar to those
made by the plaintiff in United States ex rel. Ramseyer v.
Century Healthcare Corp., 90 F.3d 1514, 1523 (10th Cir. 1996), a
case previously cited with approval by our Court of Appeals.
See Hutchins, 253 F.3d at 191-92.

In Ramseyer, the Court of

Appeals for the Tenth Circuit found that the plaintiff, who was
a clinical director of a mental health facility whose
responsibilities included monitoring compliance with Medicaid
regulations, did not allege sufficiently that she was terminated
in retaliation for engagement in protected activity under
§ 3730(h).

90 F.3d at 1523.

The court reasoned that the

plaintiff’s reports to supervisors that the facility was not
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complying with various Medicaid regulations, without more, did
not put defendants on notice of a potential qui tam suit.

Id.

The court stated:
[P]laintiff never suggested to defendants
that she intended to utilize such
noncompliance in furtherance of an FCA
action. Plaintiff gave no suggestion that
she was going to report such noncompliance
to government officials, nor did she provide
any indication that she was contemplating
her own qui tam action. Rather, the
monitoring and reporting activities
described in plaintiff’s complaint were
exactly those activities plaintiff was
required to undertake in fulfillment of her
job duties, and plaintiff took no steps to
put defendants on notice that she was acting
“in furtherance of” an FCA action—e.g., that
she was furthering or intending to further
an FCA action rather than merely warning the
defendants of the consequences of their
conduct.
Id. (internal citations omitted).
Even assuming that Reid engaged in protected activity,
we conclude that she has not sufficiently alleged that she put
Episcopal on notice of the “distinct possibility” that she was
either contemplating the filing of a False Claims Act litigation
or the reporting of Episcopal to the government.
253 F.3d at 188.

See Hutchins,

In the amended complaint, Reid states that she

made both formal and informal complaints about deficiencies in
patient care and working conditions at Episcopal.

The vast

majority of her complaints appear to have centered on the
hospital’s failure to implement and maintain proper patient
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treatment plans under the TPARP, an internal policy for which
she was partly responsible for complying.

These complaints were

not principally framed as concerns of illegal conduct or
government fraud, and thus could not have caused Episcopal to
fear reasonably that Reid was contemplating the filing of False
Claims Act litigation or reporting to the government. 1
Accordingly, her claim in Count II for retaliation
under the False Claims Act will be dismissed. 2
V.
Defendants Episcopal, TUHS, Dubin, Miazzo, Gennello,
Dutko, and Galati next challenge Reid’s claim in Count III of
the amended complaint for breach of fiduciary duty.

According

to Reid, she and these defendants were engaged in a “joint
venture” to perform their respective duties under the TPARP.

1. Reid’s reliance on a recently-decided qui tam action, United
States ex rel. Lokosky v. Acclarent, Inc., No. 11-11217, 2017
U.S. Dist. LEXIS 152998 (D. Mass. Sept. 20, 2017), does not
change the court’s conclusion. There, the court held that
internal reporting can be sufficient to support a retaliation
action under § 3730(h) “so long as that internal reporting is
tied to false claims for reimbursement.” Id. at *15. Here, as
discussed above, Reid’s complaints regarding Episcopal’s failure
to follow internal policies or comply with certain regulations
were not reasonably tied to fraudulent conduct or false claims
and thus were insufficient under § 3730(h).
2. Since Reid did not seek leave to amend her pleadings in
light of the deficiency identified by defendants, and nothing
presented in the briefs suggests that corrective amendment would
be fruitful, we will dismiss this claim with prejudice.
See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002).
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Reid asserts that these defendants breached fiduciary duties
owed to her because they failed to implement the TRARP and
provided substandard service to patients, and because they
knowingly terminated her for whistleblowing activities.
To state a claim for breach of fiduciary duty, a
plaintiff must first allege that a fiduciary relationship
existed between the parties.

Health Robotics, LLC v. Bennett,

No. 09-CV-0627, 2009 WL 5033966, at *2 (E.D. Pa. Dec. 22, 2009)
(citing Basile v. H & R Block, Inc., 761 A.2d 1115, 1119–22 (Pa.
2000)). Reid’s allegation that she was owed a fiduciary duty as
a result of the parties’ participation in a joint venture fails.
Under Pennsylvania law, a joint venture requires:

(1)

contribution to the joint venture by each member; (2) a sharing
of profits; (3) right of mutual control over the venture; and
(4) a single business transaction rather than a continuing
course of business.

Id. (citing Snellbaker v. Herrmann, 462

A.2d 713, 718 (Pa. Super. Ct. 1983)).

Reid did not share

profits with these defendants and did not exercise a mutual
right of control over the TRARP.

Moreover, her allegations do

not relate to a single transaction but rather her continuing
course of employment with Episcopal.

Thus, she has not

adequately pleaded the elements of a joint venture.
Here, Reid was engaged in a typical employer-employee
relationship.

An employer generally does not owe fiduciary
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duties to its employees.

See Seifert

v. Prudential Ins. Co. of

Am., No. 13-7637, 2014 WL 2766546, at *8 (E.D. Pa. June 18,
2014).

Reid has not alleged the existence of any other

circumstances that would give rise to a fiduciary relationship.
Accordingly, Count III of the amended complaint
alleging breach of fiduciary duty will be dismissed.
VI.
Defendants Episcopal, TUHS, Dubin, Miazzo, Gennello,
and Galati also move to dismiss Reid’s claim of discrimination
under 42 U.S.C. § 1981 alleged in Count I of the amended
complaint.

To establish a prima facie case of discrimination

under § 1981, a plaintiff must allege:

(1) that she is a member

of a racial or ethnic minority; (2) that she suffered an adverse
employment action; (3) that she was qualified for her position;
and (4) that the adverse action occurred under circumstances
giving rise to an inference of discrimination.

Jones v. Sch.

Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999); Sayed-Aly v.
Tommy Gun, Inc., 170 F. Supp. 3d 771, 777 (E.D. Pa. 2016).
According to these defendants, Reid has failed to allege
sufficiently the fourth element, namely that her termination
occurred under circumstances giving rise to an inference of
discrimination.
To establish an inference of discrimination, a
plaintiff may rely on, among other things, allegations that the
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employer treated more favorably similarly situated persons not
within the protected class.

Simpson v. Kay Jewelers, Div. of

Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998).

To be

considered similarly situated, comparator employees need not be
identically situated, but must be similarly situated in all
relevant respects.

Wilcher v. Postmaster Gen., 441 F. App’x

879, 882 (3d Cir. 2011).

Factors relevant to the analysis

include the employees’ job responsibilities, the supervisors and
decision-makers involved, and the nature of the misconduct
alleged.

Id.

Whether comparators are similarly situated is

generally a question of fact for the jury.

Abdul-Latif v. Cty.

of Lancaster, 990 F. Supp. 2d 517, 526 (E.D. Pa. 2014).
Here, Reid has alleged various incidents involving
residents and other nurses as comparator evidence giving rise to
an inference of discrimination.

We agree with the moving

defendants that residents have different job responsibilities
and supervisors than registered nurses, and therefore are not
similarly situated to Reid.

However, in the amended complaint

Reid also has alleged several incidents in which Caucasian
nurses administered incorrect or inappropriate medications to
patients and received no discipline.

Although the amended

complaint does not specify the supervisors or decision-makers
involved in these incidents, we may reasonably infer that as
nurses at Episcopal these individuals would have reported to
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Gennello, the Director of Nursing, and Dutko, the Nurse Manager,
as Reid did.

We find these allegations are sufficiently similar

in relevant aspects to serve as comparator evidence at this
stage of the proceedings.
In support of her § 1981 claim, Reid has also pointed
to the treatment of the other nurse with whom Reid worked on the
evening of her termination.

Although that nurse did not

actually administer the Benadryl to the patient, she was
involved in the process which led to the patient being given
medication without a doctor’s order.

Her conduct arguably

violated Episcopal’s policy regarding verbal orders, which
provides that verbal orders are permissible only in urgent
situations and that such orders must be documented and read back
to the practitioner for confirmation.
received no discipline.

That nurse is Asian and

To serve as comparator evidence the

nurse’s conduct need not be identical to that of Reid.
See Wilcher, 441 F. App’x at 882.

Accordingly, we conclude that

Reid’s allegations are sufficient to proceed with her claim
under § 1981. 3

3. These defendants also assert that this nurse cannot serve as
comparator evidence because she did not engage in unprofessional
conduct by confronting the resident as Reid did. As discussed
above, after Reid filed a grievance defendants upheld Reid’s
termination under the “gross neglect of duties” violation only.
Defendants may not now rely on the abandoned unprofessional
conduct charge to establish that the other nurse was not
similarly situated.
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Defendants Dutko, Gennello, Galati, Miazzo, and Dubin
assert that the § 1981 claim should be dismissed as to them
because Reid has failed to allege sufficiently that they were
personally responsible for any intentional racial
discrimination.

Dutko is the Nurse Manager who allegedly

conducted the investigation of the events that led to Reid’s
termination and who presented Reid with notice of her
termination.

Gennello is the Director of Nursing at Episcopal

and allegedly was also involved personally in the decision to
terminate Reid.

These individuals were the supervisors and

decision-makers for at least some of the other nurses whom Reid
has identified as receiving more favorable treatment.

These

allegations are sufficient to state a claim under § 1981 against
Dutko and Gennello.
However, we agree with the arguments of Galati,
Miazzo, and Dubin.

As stated above, Galati is the Assistant

Hospital Director of Human Resources.

The only allegation

pertaining to Galati is that she issued the denial of Reid’s
grievance.

In issuing the denial, Galati merely conveyed the

hospital’s determination.

There is no allegation that Galati

participated in the initial decision to terminate Reid or
otherwise had any interactions with Reid.

Although Dubin and

Miazzo are named in the heading of Count I, there are no
allegations in the body of that count or elsewhere in the
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amended complaint related to their alleged liability for racial
discrimination against Reid.
Accordingly, the motion to dismiss Reid’s § 1981 claim
will be granted as to Galati, Dubin, and Miazzo but denied as to
Dutko and Gennello. 4
VII.
Finally, defendants Episcopal, TUHS, and Al-Khatib
assert that Odey’s claim under 42 U.S.C. § 1981 in Count IV of
the amended complaint should be dismissed to the extent it
includes allegations of national origin discrimination or
racially discriminatory termination.

These defendants do not

seek to dismiss Odey’s § 1981 claim to the extent it relates to
harassment or hostile work environment given the allegations in
the amended complaint of discriminatory statements made by
Odey’s coworker and supervisor.
Section 1981 prohibits intentional racial
discrimination, which includes discrimination against
“identifiable classes of persons who are subjected to
intentional discrimination solely because of their ancestry or
ethnic characteristics.”

Saint Francis Coll. v. Al-Khazraji,

4. Galati, Dubin, and Miazzo are also named as defendants in
Reid’s claims for retaliation under the False Claims Act and for
breach of fiduciary duty. Because we have dismissed these
claims in their entirety, dismissal of the § 1981 claim as to
these defendants will result in their dismissal from this action
in its entirety.
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481 U.S. 604, 613 (1987).

It does not prohibit discrimination

solely on the basis of national origin.

Id.; see also Bennun v.

Rutgers State Univ., 941 F.2d 154, 172 (3d Cir. 1991).

Thus, in

Al-Khazraji the Supreme Court held that if the plaintiff could
“prove that he was subjected to intentional discrimination based
on the fact that he was born an Arab, rather than solely on the
place or nation of his origin, or his religion, he will have
made out a case under § 1981.”

481 U.S. at 613.

Here, Odey has

alleged repeatedly in the amended complaint that he was
discriminated against “because of his race, color, ethnicity and
national origin.”

Such claims of national origin discrimination

are improper under § 1981.
We now turn to Odey’s claim of discriminatory
termination based on race, color, and/or ethnicity.

As

discussed above, Odey must allege under § 1981 that his
termination occurred under circumstances giving rise to an
inference of discrimination.

See Jones, 198 F.3d at 410-11.

Such an inference can be raised in a number of ways, including
by “comparator evidence, evidence of similar racial
discrimination of other employees, or direct evidence of
discrimination from statements or actions by her supervisors
suggesting racial animus.”

Golod v. Bank of Am. Corp.,

403 F. App’x 699, 702 n.2 (3d Cir. 2010).

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Here, Odey has alleged evidence of direct racial
discrimination in the form of statements made by his supervisor
Al-Khatib, an individual of Lebanese ethnicity.

In these

remarks Al-Khatib threatened to fire Odey and said he would
“send his black ass back to Africa.”

At this stage of the

proceedings, these remarks are sufficient to raise an inference
of discrimination as to Odey’s termination.

Accordingly, we

need not reach the arguments of these defendants regarding
Odey’s allegations of comparator evidence in the form of other
employees who were involved in the events leading up to Odey’s
termination but who received no discipline.
Accordingly, the motion to dismiss Odey’s § 1981 claim
in Count IV will be granted to the extent it seeks dismissal of
the claim of national origin discrimination but denied to the
extent it challenges Odey’s claim for discriminatory termination
on the basis of race, color, and/or ethnicity.

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