MEMORANDUM AND/OR OPINION OF 6/3/21. SIGNED BY JUDGE: JOSEPH F. LEESON JR ON 6/3/21. 6/3/21 ENTERED AND COPIES E-MAILED. (DT)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
KEVIN K. RICE,
FRONT BOOTH SECURITY
AGENT AT UPS, et al.,
Joseph F. Leeson, Jr.
United States District Judge
June 3, 2021
Plaintiff Kevin K. Rice has filed a pro se civil action asserting claims of employment
discrimination against the following named Defendants: (1) Front Booth Security Agent at UPS;
(2) Security Supervisor for UPS; and (3) Human Resources Department for UPS. 1 (ECF No. 5 at
2.) 2 Rice seeks leave to proceed in forma pauperis. For the following reasons, Rice will be
granted leave to proceed in forma pauperis, and his Amended Complaint 3 will be dismissed
Rice listed “UPS 15 E. Oregon Ave. Philadelphia, PA 19148” in the caption of his Amended
Complaint (ECF No. 5 at 1), but did not specifically list UPS as one of the named defendants on
page two of the form complaint where a pro se litigant is instructed to “[l]ist all defendants.” (Id.
at 2.) It is, therefore, unclear to the Court as to whether Rice intended to name UPS as a
defendant in this matter, but construing the pleading liberally, the Court will deem UPS to be a
named Defendant in place of “Human Resources Department for UPS.” The Clerk of Court will
be directed to substitute “UPS 15 E. Oregon Ave. Philadelphia, PA 19148” as a Defendant in
place of “Human Resources Department for UPS.”
The Court uses the pagination assigned to the Complaint by the CM/ECF docketing system.
An amended complaint, once submitted to the Court, serves as the governing pleading in the
case because an amended complaint supersedes the prior pleading. See Shahid v. Borough of
Darby, 666 F. App’x 221, 223 n.2 (3d Cir. 2016) (per curiam) (“Shahid’s amended complaint,
however, superseded his initial complaint.” (citing W. Run Student Hous. Assocs. LLC v.
Huntingdon Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013)); see also Garrett v. Wexford Health,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Rice will, however, be
given an opportunity to file a second amended complaint.
Rice avers that the events giving rise to his claims occurred on Friday, December 18,
2020, at the front security booth and parking lot of 15 E. Oregon Avenue, Philadelphia,
Pennsylvania. (ECF No. 5 at 3.) Rice avers that he went to the “UPS location” to receive his
employee check at 8:00 a.m. and was met with a “sever[e] attitude” from a security guard. (Id. at
3.) Rice felt “intimidated by the hostile talk” and requested to speak with a supervisor. (Id.)
The security guard responded that she met that criteria, and Rice pulled out his identification and
displayed a voided check from the previous work week and “explained [his] work situation and
location.” (Id.) According to Rice, he asked every other employee that passed by for “help” and
security advised each employee, “don’t get HR for him.” (Id.) Rice asserts that one “[S]panish
staff member put his body on [his] making physical contact in a[n] aggressive manner.” (Id.)
Rice “ran to [his] car in fear and called the Philadelphia Police.” The police officer arrived and
after Rice explained his story, the police officer “had to write [him] a police report” just to get
his check from UPS. (Id.) Rice avers that his manager texted him a few hours later and told him
that he was laid off. (Id.)
938 F.3d 69, 82 (3d Cir. 2019) (“In general, an amended pleading supersedes the original
pleading and renders the original pleading a nullity. Thus, the most recently filed amended
complaint becomes the operative pleading.”) (internal citations omitted).
Rice asserts that the basis for federal court jurisdiction is both federal question and
diversity. 4 (Id. at 2.) With respect to federal question jurisdiction, Rice asserts that the
following rights are at issue:
wrongful termination, discrimination, racism, revenge and retribution, malicious
behavior, abuse of authority, mental anguish, impeding development, hostile
environment, threatening bodily harm and injury, harassment, pain and suffering,
hardship, [and] breach of contract.
Rice asserts that he has suffered mental anguish and paranoia and although he is in the
process of seeking a therapist to aid him, arranging to see a psychiatrist “isn’t a[n] easy task.”
(Id. at 4.) Rice seeks an apology from the individuals involved as well as monetary damages in
the amount of $20,000. (Id.) Rice also seeks his regular compensation of $21.00 per hour from
December 18, 2020, until the end of the seasonal position for which he was hired, which ended
sometime between December 25, 2020, and January 1, 2021. (Id.)
STANDARD OF REVIEW
The Court will grant Rice leave to proceed in forma pauperis because it appears that he is
incapable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Amended Complaint if it fails
to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed
To the extent Rice sought to raise state claims, he has not pled an independent basis for
jurisdiction because the parties are not diverse. (ECF No. 5 at 3.) 28 U.S.C. § 1332(a) requires
“‘complete diversity between all plaintiffs and all defendants,’ even though only minimal
diversity is constitutionally required. This means that, unless there is some other basis for
jurisdiction, ‘no plaintiff [may] be a citizen of the same state as any defendant.’” Lincoln Ben.
Life Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015) (quoting Lincoln Prop. Co. v. Roche,
546 U.S. 81, 89 (2005) and Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir.
2010) (internal footnotes omitted)). As the Court will dismiss Rice’s federal law claims, the
Court will not exercise supplemental jurisdiction over any state law claims, which will be
dismissed without prejudice.
by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the
Court to determine whether the complaint contains “sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). Conclusory allegations do not suffice. Id.
“[T]he plausibility paradigm announced in [Bell Atl. Corp. v.] Twombly[, 550 U.S. 544
(2007),] applies with equal force to analyzing the adequacy of claims of employment
discrimination.” Fowler v. UMPC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quotations
omitted). To state an employment discrimination claim, as with any other claim, a plaintiff must
“put forth allegations that raise a reasonable expectation that discovery will reveal evidence of
the necessary element.” Id. at 213 (quotations omitted). As Rice is proceeding pro se, the Court
construes his allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
A. Claims Against UPS
Title VII of the Civil Rights Act prohibits employment discrimination based on race,
color, religion, sex, national origin, age, and disability. See generally E.E.O.C. v. Allstate Ins.
Co., 778 F.3d 444, 448-49 (3d Cir. 2015); see also 42 U.S.C. § 2000e, et seq.; 29 U.S.C. § 621;
42 U.S.C. § 12112). To state a claim under the federal laws prohibiting employment
discrimination, a plaintiff must allege sufficient facts to raise a reasonable expectation that his
membership in a protected class was “either a motivating or determinative factor in [his
employer’s] adverse employment action against [him].” 5 Connelly v. Lane Constr. Corp., 809
In general, to establish a prima facie case of employment discrimination, a plaintiff must show
that: (1) he is a member of a protected class; (2) he was qualified for the position in question; (3)
he suffered an adverse employment action, and; (4) the adverse action occurred under
F.3d 780, 789 (3d Cir. 2016) (internal quotations omitted). Title VII protects only against
harassment based on discrimination against a protected class; it is not “a general civility code for
the American workplace.” See Mufti v. Aarsand & Co., 667 F. Supp. 2d 535, 544 (W.D. Pa.
2009) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80-81 (1998)). “[T]he
ordinary tribulations of the workplace, such as the sporadic use of abusive language, genderrelated jokes, and occasional teasing” do not support a hostile work environment claim. Mufti,
667 F. Supp. 2d at 545 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
To the extent that Rice intended to bring Title VII claims against his employer UPS, even
under a liberal reading, Rice’s Amended Complaint fails to allege a plausible claim under the
federal statutes prohibiting employment discrimination. Rice has not alleged any facts
supporting his conclusory allegations that UPS discriminated against him. In fact, Rice has not
identified his membership in a protected class, nor has he explained how he was discriminated
against by UPS because of those characteristics. In other words, although Rice has described an
incident that allegedly occurred at the security booth of his place of employment, he does not
link that treatment or any adverse action to his membership in a protected class. Because the
Amended Complaint does not contain anything more than conclusory allegations of
discrimination, Rice has failed to state claims pursuant to Title VII at this time. See Khalik v.
United Airlines, 671 F.3d 1188, 1193 (3d Cir. 2012) (“Plaintiff’s general assertions of
discrimination and retaliation, without any details whatsoever of events leading up to her
circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); see also Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d
Cir. 2003). Although a plaintiff need not establish a prima facie case to survive dismissal for
failure to state a claim, he still must “put forth allegations that raise a reasonable expectation that
discovery will reveal evidence of the necessary element.” Fowler v. UPMC Shadyside, 578 F.3d
203, 213 (3d Cir. 2009) (quotations omitted).
termination, are insufficient to survive a motion to dismiss.”). However, the Court will give Rice
leave to file a second amended complaint in the event he can plead additional facts to state a
plausible claim for relief against UPS. See Grayson, 293 F.3d at 114.
Additionally, Rice should take note that a plaintiff pursuing an employment
discrimination claim in federal court must first exhaust administrative remedies before filing a
lawsuit in federal court. See generally Slingland v. Donahoe, 542 F. App’x 189, 191 (3d Cir.
2013) (“‘It is a basic tenet of administrative law that a plaintiff must exhaust all required
administrative remedies before bringing a claim for judicial relief.’”) (quoting Robinson v.
Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997)); Robinson, 107 F.3d at 1020-21 (explaining
exhaustion requirements for federal employees claiming employment discrimination). Rice does
not allege that he filed a charge with the EEOC, or that he received a Notice of Right to Sue
Letter. Neither did he attach a copy of such a letter to his Amended Complaint. It is not clear
that Rice has exhausted administrative remedies as to any of his employment claims and, in any
event, the claims fail because they are not adequately pled.
B. Claims Against Other Named Defendants
To the extent that Rice seeks to bring Title VII claims against any Defendant other than
his employer UPS, those claims must be dismissed with prejudice. Title VII makes it unlawful
for an “employer” to discriminate. 42 U.S.C. § 2000e-2(a)(1). Rice, however, seeks to assert
claims under Title VII against individuals who are not his employer, namely, a Front Booth
Security Agent at UPS and a Security Supervisor for UPS. An “employer” is defined as a
“person engaged in an industry affecting commerce who has fifteen or more employees . . . and
any agent of such a person.” 42 U.S.C. § 2000e(b). The United States Court of Appeals for the
Third Circuit has declined to extend liability under Title VII to individuals, such as those persons
or entities just named, holding the term “employer” as used in Title VII does not encompass
individual employees. Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir.
1996). Accordingly, the Title VII claims against Front Booth Security Agent at UPS and
Security Supervisor for UPS are dismissed with prejudice.
For the foregoing reasons, the Court will grant Rice leave to proceed in forma pauperis
and dismiss his Amended Complaint in part with prejudice and in part without prejudice. The
Court will allow Rice to file a second amended complaint in the event he can state a plausible
claim against an appropriate defendant. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114
(3d Cir. 2002). An Order follows.
BY THE COURT:
/s/ Joseph F. Leeson, Jr.__________________
JOSEPH F. LEESON, JR.
United States District Judge
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