MORRISON v. ACCESS SERVICES, INC.

Filing 13

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 10/15/14. 10/15/14 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRISTINE MORRISON,
Plaintiff
vs.
ACCESS SERVICES, INC.,
Defendant

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CIVIL ACTION

NO. 14-4685

MEMORANDUM
STENGEL, J.

October 15, 2014

This is an employment discrimination action brought by Christine Morrison
against Access Services, Inc., her former employer. She alleges discrimination based on
age and religion, and retaliation based on her complaints of age discrimination and on
using leave under the Family Medical Leave Act. The defendant has filed a motion to
dismiss the claims of discrimination based on age and religion in Counts I and II
respectively. For the reasons that follow, I will grant the motion in its entirety.
I. BACKGROUND1
The bare bones complaint alleges that Ms. Morrison was hired by the defendant in
October 2010 as a program specialist. See Compl. ¶ 7. When the complaint was filed,
Ms. Morrison was forty-three years old. Id. at ¶ 9. During her employment, Ms.
Morrison allegedly had “an excellent work performance and success record.” Id. at ¶ 8.
On December 4, 2012, Ms. Morrison went out on an FMLA leave. Id. at ¶ 30. While
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The facts are gleaned from the complaint and the extrinsic documents upon which it is based.
See GSC Partners, CDO Fund v. Washington, 368 F.3d 228, 236 (3d Cir. 2004). For the
purposes of this motion, they are presented in the light most favorable to the plaintiff, as the nonmoving party, and are accepted as true with all reasonable inferences drawn in her favor.

still on leave, she filed a Charge of Discrimination based on age with the Equal
Employment Opportunity Commission, and served it upon the defendant on December
15, 2012. Id. at ¶ 31. Ms. Morrison returned to work on January 7, 2013.2 Id. at 32. On
January 13, 2013, the defendant allegedly terminated Ms. Morrison “based upon her
complaints about age discrimination in employment decision.” Id. at ¶ 10. The
complaint alleges that the termination was in retaliation for filing the Charge of
Discrimination. Id. at ¶ 33. The defendant replaced Ms. Morrison “with an employee
who would not protect older employees from age discrimination as Plaintiff previously
did.” Id. at ¶ 12. The complaint characterizes the defendant’s conduct as “unreasonable,
irrational, arbitrary, capricious, and based upon no other reason other than the plaintiff’s
protecting employees from age discrimination and objecting to her supervisors about age
discrimination.” Id. at ¶ 13.
The complaint also alleges that Ms. Morrison “was disciplined for not complying
with starting monthly staff meetings with a prescribed prayer.” See Compl. ¶ 20. Ms.
Morrison contends that the defendant terminated her “due to her independent religious
beliefs, and for not believing in the “true God.’” Id. at ¶ 21. She alleges that the
“defendant intentionally, knowingly, and purposefully violated Title VII by invidiously
discriminating against qualified Plaintiff based upon her religion, or more particularly, to
follow the religious beliefs of management, resulting in her termination.” Id. at ¶ 22.

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The actual date Ms. Morrison returned to work is unclear. Paragraph 32 of the complaint
indicates that she returned to work on January 7, 2013. Paragraph 38 of the complaint, however,
indicates that she returned to work on January 11, 2013.

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II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim upon which relief can be granted examines the sufficiency of
the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Following the Supreme
Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), pleadings standards in federal actions have
shifted from simple notice pleading to a more heightened form of pleading, requiring a
plaintiff to plead more than the possibility of relief to survive a motion to dismiss under
Fed. R. Civ. P.12(b)(6). Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir.
2009); see also Phillips v. County of Allegheny, 515 F. 3d 224, 230 (3d Cir. 2008).
Therefore, when presented with a motion to dismiss for failure to state a claim,
district courts should conduct a two-part analysis. First, the factual and legal elements of
a claim should be separated. The court must accept all of the complaint’s well-pleaded
facts as true but may disregard legal conclusions. Iqbal, 556 U.S. at 679. Second, a
district court must determine whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “plausible claim for relief.” Id. In other words, a complaint
must do more than allege the plaintiff’s entitlement to relief. A complaint has to “show”
such an entitlement with its facts. Id.; see also Phillips, 515 F.3d at 234-235. “Where the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679.
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
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and plain statement of the claim showing that the pleader is entitled to relief.” As the
Court held in Twombly, the pleading standard Rule 8 announces does not require
“detailed factual allegations,” but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 555). A pleading that offers “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557.
III. DISCUSSION
A. Count I – Age Discrimination under the ADEA
Under the ADEA, “[i]t shall be unlawful for an employer . . . to discharge any
individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a). The Supreme Court of the United States held that
“the ordinary meaning of the ADEA’s requirement that an employer took adverse action
‘because of’ age is that age was the ‘reason’ that the employer decided to act.” Gross v.
FBL Financial Servs., 557 U.S. 167 (2009). In Smith v. City of Allentown, 589 F.3d
684, 691 (3d Cir. 2009), the Court of Appeals for the Third Circuit held that the
McDonnell Douglas3 burden-shifting framework is still applicable notwithstanding the
Supreme Court’s decision in Gross. It noted that “[w]hile we recognize that Gross

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McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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expressed significant doubt about any burden-shifting under the ADEA, we conclude that
the but-for causation standard required by Gross does not conflict with our continued
application of the McDonnell Douglas paradigm in age discrimination cases.” Id. at 691.
Therefore, it is appropriate to apply the McDonnell Douglas framework in analyzing Ms.
Morrison’s age discrimination claim.
Under McDonnell Douglas, a plaintiff must first make out a prima facie case of
age discrimination. “After establishing a prima facie case, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its adverse employment
action.” Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir.2004).
“If the employer does so, the burden of production returns to the plaintiff to demonstrate
that the employer’s proffered rationale was a pretext for age discrimination.” Starceski v.
Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n. 4 (3d Cir. 1995).
Here, in arguing for the dismissal of Count I, the defendant contends that Ms.
Morrison’s claim under the ADEA must fail because she has not established a prima
facie case of age discrimination. To establish such a prima facie case under the ADEA, a
plaintiff must satisfy four elements: (1) she is at least forty years of age; (2) she is
qualified for the position in question; (3) she suffered an adverse employment action; and
(4) she was replaced by a sufficiently younger employee to permit a reasonable inference
of age discrimination. See Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.
1995).
I agree with the defendant that Ms. Morrison cannot establish a prima facie case of
age discrimination based on the facts alleged in the complaint. While Ms. Morrison is
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over forty years of age, and for purposes of this motion, we can assume that she was
qualified for her job with the defendant, she does not identify any discriminatory conduct
to which she was allegedly subjected because of her age. Furthermore, she does not
reveal the age of her replacement to satisfy the requirement that she be replaced by a
sufficiently younger employee to permit a reasonable inference of age discrimination.
Instead, the complaint indicates that Ms. Morrison was terminated based upon her
“advocating a non-discriminatory policy for older workers,” and her replacement was “an
employee who would not protect older employees from age discrimination as [she]
previously did.” There is no allegation that Ms. Morrison suffered an adverse
employment action because of her age. In fact, there is no allegation in the complaint
which could plausibly give rise to an inference that Ms. Morrison was discriminated
against because of her age. Even in her response to the motion to dismiss, Ms. Morrison
concedes that she had complained about age discrimination against “other employees,”
and she was fired for “her protesting of anti-age discrimination.”
Ms. Morrison insists that the alleged facts support a cause of action for retaliatory
termination by noting that she was fired for complaining about other employees’ rights to
be free of age discrimination. I agree. Complaining of age discrimination satisfies the
first element of a prima facie case of retaliation, i.e., engaging in protected activity. See
29 U.S.C. § 623(d); see also Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005).
Nevertheless, Count I is not a cause of action for retaliatory termination, but for
discriminatory termination based on age. In Count IV, Ms. Morrison brings a retaliation

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claim under the ADEA, which is not being challenged in the defendant’s motion to
dismiss.
Because Ms. Morrison has not alleged facts sufficient to establish that she was
subjected to discrimination based on her own age and that younger employees were
treated more favorably than she, I will grant the motion to dismiss Count I.
B. Count II – Discrimination Based on Religion under Title VII
Under Title VII of the Civil Rights Act of 1964,
it shall be an unlawful employment practice for an
employer to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex or national origin...
See 42 U.S.C. §2000e-2(a)(1) (emphasis added). Title VII also prohibits employers from
retaliating against employees for complaining of discrimination based on race, color,
religion, sex, or national origin. See 42 U.S.C. § 2000e-3(a). To establish a claim for
religion-based employment discrimination, the Third Circuit has recognized two theories
on which employees may rely: “disparate treatment” or “failure to accommodate.”
Abramson v. William Paterson College of N.J., 260 F.3d 265, 281 (3d Cir. 2001).
Because it is far from clear under which theory Ms. Morrison brings this claim, I
will address both. Under the “disparate treatment” theory, “the prima facie case and
evidentiary burdens of an employee . . . mirror those of an employee alleging race or sex
discrimination.” Id. For a prima facie case, a plaintiff must establish that: (1) she is a
member of a protected class; (2) she suffered an adverse action; and (3) non-members of
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the protected class were treated more favorably. Abramson v. William Paterson College
of New Jersey, 260 F.3d 265, 281 (3d Cir. 2001). In addition, demonstrating a prima
facie case of religious discrimination requires evidence that the employer had knowledge
of the plaintiff’s religion. Since an “employee’s religion . . . is often unknown to the
employer,” the Third Circuit has required “that employees [have] informed their
employers of their religious beliefs prior to the alleged discriminatory action” in order to
make out a prima facie case for discharge on account of religion. Geraci v. MoodyTottrup, Intern., Inc., 82 F.3d 578, 581 (3d Cir. 1996).
Here, I am constrained again to find that Ms. Morrison has not established a prima
facie case of employment discrimination based on religion under this theory. First, Ms.
Morrison does not allege that she is a member of a protected class. Instead, she mentions
that she was terminated “due to her independent religious beliefs, and for not believing in
the “true God.” One could glean from that statement that perhaps Ms. Morrison is,
among other choices, an atheist which would certainly qualify as a protected class for
Title VII purposes. It is the plaintiff’s job at this stage of the proceedings, however, to
show that she is a member of a protected class rather than relying on the ability of the
complaint’s reader to infer the establishment of a prima facie case based on the plaintiff’s
“naked assertions.” See Twombly, 550 U.S. at 557. Further, there is no mention of
whether Ms. Morrison had informed her employer of her “independent religious beliefs,”
prior to her termination. It can be inferred from the complaint that the employer was
aware of her beliefs because it took issue with Ms. Morrison’s refusal to begin staff

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meetings with a prescribed prayer. Nevertheless, satisfaction of the first element for the
prima facie case is far from certain.
Second, I must disagree with the defendant who argues that Ms. Morrison has also
not satisfied the second element because she has not alleged a sufficient adverse
employment action other than the vague assertion “Plaintiff was disciplined for not
complying.” See Compl. ¶ 20. While I agree that that allegation is, at best, imprecise,
Ms. Morrison does allege in the next paragraph of the complaint that the defendant
terminated her for her beliefs. Id. at ¶ 21. Thus, Ms. Morrison has satisfied the second
prong of the prima facie case.
Finally, it is unequivocal that Ms. Morrison has not satisfied the third prong of the
prima facie case. Not only does Ms. Morrison fail to establish that non-members of her
protected class were treated more favorably, she has failed to mention any other
employee with whom she could be compared. Accordingly, Ms. Morrison has not
established a prima facie case that she was discriminated against based on religion under
this theory.
Next, if Ms. Morrison had intended to pursue this claim based on the second
theory, the claim would still fail. Title VII requires employers to make reasonable
accommodations for their employees’ religious beliefs and practices, unless doing so
would result in “undue hardship” to the employer. See 42 U.S.C. 2000e(j). To plead
successfully a claim of religion-based employment discrimination under the theory that
an employer failed to accommodate a plaintiff’s religious beliefs, that plaintiff must show
that: (1) she holds a sincere religious belief that conflicted with a job requirement; (2) she
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informed her employer of the conflict; and (3) she was disciplined for failing to comply
with the conflicting requirement. Shelton v. Univ. of Med. & Dentistry of N.J., et al.,
223 F.3d 220, 224 (3d Cir. 2000). The following four paragraphs of the complaint are
germane to Ms. Morrison’s claim of religion-based employment discrimination:
19.
Defendant is not a secular entity and is not
supposed to be affiliated with a particular religious entity.
20.
At all times herein relevant, Plaintiff was
disciplined for not complying with starting monthly staff
meetings with a prescribed prayer.
21.
Despite Plaintiff’s diligent work ethics,
Defendant terminated Plaintiff due to her independent
religious beliefs, and for not believing in the “true God.”
22.
Defendant intentionally, knowingly, and
purposefully violated Title VII by invidiously
discriminating against qualified Plaintiff based upon her
religion, or more particularly, to follow the religious
beliefs of management, resulting in her termination.
Upon reading these allegations, one might gather that opening staff meetings with a
prayer is a job requirement at the defendant employer, and that Ms. Morrison had a
conflict with that requirement. Ms. Morrison vaguely mentions in Paragraph 20 that she
was somehow disciplined for not complying with that requirement. These allegations are
insufficient because the complaint leaves several essential questions unanswered. What
is her sincerely held religious belief? What type of discipline did she receive for her noncompliance? Did she inform her employer of the conflict? Did she give her employer an
opportunity to make a reasonable accommodation for her religious belief? While I am
aware that Rule 8(a)(2) of the Federal Rules of Civil Procedure requires only “a short and
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plain statement of the claim showing that the pleader is entitled to relief,” it is still
necessary to plead a claim sufficiently in order to “give the defendant fair notice of what
the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. As these
four paragraphs in the complaint are written, it cannot be said that the defendant has been
made aware of the exact claim against it and given a fair opportunity to prepare its
defense. Accordingly, I find that the plaintiff has failed to establish a prima facie case for
employment discrimination based on religion under either theory available in this circuit.
I will grant the defendant’s motion to dismiss Count II.
C. Punitive Damages
The defendant finally argues that Ms. Morrison’s claim for punitive damages must
be stricken because she has alleged no facts to support such an award. Punitive damages
against a private employer are available under Title VII “if the complaining party
demonstrates that the respondent engaged in a discriminatory practice or discriminatory
practices with malice or reckless indifference to the federally protected rights of an
aggrieved individual.” 42 U.S.C. § 1981a(b)(1). In Kolstad v. American Dental Ass’n,
the Supreme Court of the United States recognized that, through Section 1981a(b)(1),
Congress established a “higher standard that a plaintiff must satisfy to qualify for a
punitive award.” 527 U.S. 526, 534 (1999). This higher standard requires that “an
employer must at least discriminate in the face of a perceived risk that its actions will
violate federal law to be liable in punitive damages.” Id. at 536. “The terms ‘malice’ or
‘reckless indifference’ pertain to the employer’s knowledge that it may be acting in

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violation of federal law, not its awareness that it is engaging in discrimination.” Id. at
535.
From the facts alleged in this complaint, no reasonable inference may be drawn
that the defendant acted with malice or reckless indifference to the plaintiff’s federally
protected rights. Accordingly, I will grant the defendant’s motion to dismiss any claim
for punitive damages under Title VII.
An appropriate Order follows.

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