Heverling et al v. McNeil Consumer Pharmaceuticals, Co./Fort Washington, PA et al

Filing 30

MEMORANDUM (Order to follow as separate docket entry) re: 12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by McNeil Consumer Pharmaceuticals, Co./Fort Washington, PA, McNeil Consumer Pharmaceuticals, Co./ Lancaster, PA. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 2/23/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBBIE HEVERLING, et al.,
Plaintiffs
v.
MCNEIL CONSUMER
PHARMACEUTICALS, CO./FORT
WASHINGTON, PA., et al.,
Defendants

:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO. 1:16-CV-600
(Chief Judge Conner)

MEMORANDUM
Plaintiffs Robbie Heverling (“Heverling”) and Nathan Hess (“Hess”)
commenced this action against defendant McNeil Consumer Pharmaceuticals, Co.
(“McNeil”).1 Plaintiffs allege that McNeil fostered a hostile work environment and
retaliated against them in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2000e-17, and the Pennsylvania Human Relations Act (“PHRA”).
43 PA. STAT. & CONS. STAT. ANN. §§ 951-963. Plaintiffs also advance a state common
law claim for wrongful termination. (Doc. 1). McNeil moves to dismiss plaintiffs‟
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 12). The
court will grant the motion.
I.

Factual Background & Procedural History
McNeil is a corporation which manufactures pharmaceutical drugs. (Doc. 1

¶¶ 3, 5). McNeil employed plaintiffs as processing associates at McNeil‟s plant in
1

McNeil asserts that plaintiffs erroneously designated McNeil‟s identity as
“McNeil Consumer Pharmaceuticals” in their complaint. (See Doc. 1; Doc. 16 at 1).
To the extent McNeil is correct, plaintiffs shall endeavor to identify the proper
corporate entity in any amended pleading to be filed.

Lancaster, Pennsylvania. (Id. ¶¶ 12-13). During the entire course of plaintiffs‟
employment, the Food and Drug Administration (“FDA”) subjected McNeil to a
consent decree which required McNeil to adhere to certain quality control and
manufacturing standards. (Id. ¶ 14). Between January 2015 and May 2015,
plaintiffs observed that management at the Lancaster plant consistently violated
the consent decree and did not satisfy the FDA‟s Good Manufacturing Practices.
(Id. ¶¶ 17-22). Plaintiffs specifically note that the plant‟s management allowed them
to use contaminated tools and equipment in violation of FDA requirements. (Id. ¶
17). Plaintiffs also aver that McNeil‟s management engaged in improper record
keeping and that their shift supervisor failed to properly inspect plaintiffs‟
workplace for cleanliness and quality control. (Id. ¶¶ 18-22).
Plaintiffs brought these issues to their shift supervisor. (Id. ¶¶ 23-24).
Plaintiffs also approached two other shift supervisors about these problems. (Id. ¶¶
25-30). None of the supervisors alleviated plaintiffs‟ concerns. (Id.) In May 2015,
one of the machines at the plant malfunctioned, causing a batch of contaminated
product to leave the facility. (Id. ¶ 31). Plaintiffs reported this incident to their
supervisors. (Id. ¶ 32).
Plaintiffs allege that McNeil initiated a Title VII investigation “nearly
immediately after the aforementioned complaints were made.” (Id. ¶ 33). McNeil
interviewed most of the male employees in plaintiffs‟ shift during the investigation.
(Id. ¶ 34). Investigators asked plaintiffs and others whether they ridiculed another
male employee using sexually-charged language. (Id. ¶ 35). During his interview,
Hess indicated that he never teased male employees in his shift. (Id. ¶ 36).
2

Heverling told an investigator that he did tease other male employees in his shift,
but that other male employees engaged in similar behavior and he never singled out
the specific employee in question. (Id. ¶ 37). Both Hess and Heverling stated that
other male employees in their shift subjected them to homophobic slurs. (Id. ¶ 39).
Plaintiffs allege that “[a]s a result of . . . their participation in the Title VII
investigation,” McNeil terminated them from employment on June 25, 2015. (Id. ¶
40). Both plaintiffs received termination letters indicating that the reason for their
terminations, inter alia, was inappropriate behavior towards other employees. (Id.
at 16, 18). Plaintiffs contend that McNeil had “two primary motivations” for
terminating their employment. (Id. ¶ 41). Plaintiffs cite “their reporting of sexual
and homophobic slurs during the Title VII investigation[]” as well as their repeated
complaints about McNeil‟s failure to adhere to the FDA‟s regulations and required
practices. (Id.)
Plaintiffs filed charges with the United States Equal Employment
Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations
Commission on October 18, 2015. (Docs. 16-1, 16-2). The EEOC sent plaintiffs rightto-sue letters on January 12, 2016. (Doc. 1 at 14-15). Plaintiffs filed the instant
complaint (Doc. 1) on April 11, 2016. Therein, they allege a hostile work
environment claim, Title VII and PHRA retaliation claims, and a state law wrongful
termination claim. (Id. ¶¶ 44-75). McNeil filed the instant motion (Doc. 12) to
dismiss on June 13, 2016. The motion is fully briefed and ripe for disposition.

3

II.

Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cty.
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). In addition to reviewing the facts
contained in the complaint, the court may also consider “matters of public record,
orders, exhibits attached to the complaint and items appearing in the record of the
case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir.
1994); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To test the sufficiency of the complaint, the court must conduct a three-step
inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In
the first step, “the court must „tak[e] note of the elements a plaintiff must plead to
state a claim.‟” Id. at 130 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next,
the factual and legal elements of a claim should be separated; well-pleaded facts
must be accepted as true, while mere legal conclusions may be disregarded. Id. at
131; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once
4

the court isolates the well-pleaded factual allegations, it must determine whether
they are sufficient to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679
(citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555. 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.”
Iqbal, 556 U.S. at 678.
Courts should grant leave to amend before dismissing a curable pleading in
civil rights actions. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,
482 F.3d 247, 251 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002). Courts need not grant leave to amend sua sponte in dismissing noncivil rights claims pursuant to Rule 12(b)(6), Fletcher-Harlee Corp., 482 F.3d at 251,
but leave is broadly encouraged “when justice so requires.” FED. R. CIV. P. 15(a)(2).
III.

Discussion
McNeil asseverates that plaintiffs‟ allegations, even accepted as true, fail to

establish an entitlement to relief under Title VII, the PHRA, and Pennsylvania
common law. The court will consider McNeil‟s arguments seriatim.
A.

Hostile Work Environment

McNeil submits that plaintiffs‟ hostile work environment claim is barred for
failure to exhaust administrative remedies. To initiate a hostile work environment
claim under Title VII, a plaintiff must first file a charge of discrimination with the
EEOC. 42 U.S.C. § 2000e-5(b), (e)(1). A complainant must file a charge within 180
days after an allegedly unlawful employment practice occurs. Id. § 2000e-5(e)(1).
This deadline extends to 300 days if a complainant files charges in a state, such as
5

Pennsylvania, with a parallel agency which may grant relief to complainants who
suffer discriminatory employment practices. Id.; Mandel v. M & Q Packaging
Corp., 706 F.3d 157, 165 (3d Cir. 2013). The EEOC must then investigate the
charges. Burgh v. Borough Council, 251 F.3d 465, 469-70 (3d Cir. 2001) (citations
omitted). If the EEOC fails to resolve the matter within 180 days, the EEOC notifies
the complainant with a right-to-sue letter. Id. at 470 (citing Waiters v. Parsons, 729
F.2d 233, 237 (3d Cir. 1984)). Receipt of a right-to-sue letter is a prerequisite to filing
a private Title VII action. Id. (citations omitted). A complainant must file a private
action within 90 days of receiving a right-to-sue letter. Id. (citing 42 U.S.C. § 2000e5(f)(1)).
The breadth of the complainant‟s private action is “defined by the scope of
the EEOC investigation which can reasonably be expected to grow out of the charge
of discrimination.” Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966 (3d Cir. 1978)
(quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)). In
determining whether a claim is contemplated in an EEOC charge, courts liberally
interpret the administrative filing. Anjelino v. N.Y. Times Co., 200 F.3d 73, 94 (3d
Cir. 1999) (quoting Hicks, 572 F.2d at 965). Courts should construe EEOC charges
as meeting exhaustion requirements if they contain terms that are interchangeable
with those commonly used in hostile work environment charges, such as “„abusive,‟
„hostile,‟ „environment,‟ and „atmosphere.‟” Id. at 94-95 (citations omitted).
McNeil contends that plaintiffs failed to exhaust administrative remedies
because their EEOC charges do not contemplate hostile work environment claims.
(Doc. 16 at 8-9). Both Heverling and Hess timely submitted charges to the EEOC
6

and Pennsylvania Human Relations Commission, and both received right-to-sue
letters prior to filing suit in district court. (Doc. 1 at 14-15; Doc. 16-1 at 2; Doc. 16-2
at 2). Heverling and Hess alleged only retaliation in their administrative charges—
neither checked the box on the EEOC form indicating they intended to advance
sex discrimination charges such as the hostile work environment claims asserted
herein. (Doc. 16-1 at 2; Doc. 16-2 at 2). Nor do plaintiffs‟ EEOC filings describe a
hostile work environment or sex discrimination in the space the form provided for
elaboration. (Doc. 16-1 at 2; Doc. 16-2 at 2).
Plaintiffs assert that their EEOC charges reflect an intent to pursue hostile
work environment claims because they referred to a “harassment investigation” in
their agency filings. (See Doc. 16-1 at 2; Doc. 16-2 at 2; Doc. 21-1 at 8-11). The
EEOC charges, even when liberally construed, exclude any claim by plaintiffs of a
hostile work environment. Per contra, the charges assert that McNeil initiated a
duplicitous harassment investigation as pretext to terminate plaintiffs. (Doc. 16-1
at 2; Doc. 16-2 at 2). Plaintiffs‟ agency filings are devoid of any reference which
could be reasonably interpreted as asserting personal hostile work environment
claims. The court cannot construe the language of the charges to evince any claim
beyond retaliatory termination. The court will grant McNeil‟s motion to dismiss
plaintiffs‟ hostile work environment claims.

7

B.

Title VII and PHRA Retaliation

McNeil‟s motion next tests the sufficiency of plaintiffs‟ retaliation claims.2
Title VII protects employees who have “opposed any practice made an unlawful
employment practice” or “made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing” under the statute. 42 U.S.C.
§ 2000e-3(a). To establish a prima facie claim of retaliation, plaintiffs must show
that: (1) they engaged in protected activity; (2) their employer took an adverse
employment action against them; and (3) there was a causal nexus between their
participation in protected activity and the adverse employment action. See Moore
v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll.,
51 F.3d 383, 386 (3d Cir. 1995)). McNeil‟s Rule 12 arguments concern only the first
and third elements. (See Doc. 16 at 10-14).
McNeil adjures that plaintiffs have not alleged that they engaged in activity
protected by Title VII. (See id. at 10-13). Specifically, McNeil remonstrates that its
“internal” investigation is not protected activity within the ambit of Title VII. (Id.)
Courts are generally in accord that participation in an internal investigation is not
statutorily protected activity. Washco v. Fed. Express Corp., 402 F. Supp. 2d 547,
554-55 (E.D. Pa. 2005) (collecting cases). But plaintiffs‟ complaint unambiguously
characterizes the activity in question as a “Title VII investigation.” (Doc. 1 ¶¶ 33-43,
2

Courts construe the language of the PHRA identically to federal antidiscrimination laws “except where there is something especially different” in the
language of the PHRA. See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d
Cir. 2002) (citation omitted). The parties have not identified any material difference
between the relevant statutes sub judice. (See Doc. 16 at 10 n.8). Accordingly, the
disquisition that follows applies to plaintiffs‟ retaliation claims under both statutes.
8

59-64). Accepting plaintiffs‟ allegations as true, the complaint adequately avers that
plaintiffs participated in “protected activity.”3
McNeil also contends that plaintiffs cannot satisfy Title VII‟s causation
standard. To establish causation for a retaliation claim, plaintiffs must show that
their participation in protected activity was a “but-for” cause of their adverse
employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. __, 133 S. Ct.
2517, 2533 (2013). This exacting standard requires plaintiffs to demonstrate that the
adverse action “would not have occurred” absent the alleged wrongful retaliation.
Id. Accordingly, when a plaintiff sets forth two (or more) grounds for an adverse
employment action, only one of which is statutorily protected, the plaintiff cannot
satisfy Title VII‟s causation requirement. See, e.g., Burton v. Pa. State Police, 990
F. Supp. 2d 478, 510-11 (M.D. Pa. 2014).
Plaintiffs expressly identify “two primary reasons” for their terminations:
(1) participation in the Title VII investigation and (2) reporting noncompliance with
the FDA consent decree. (Doc. 1 ¶ 41 (emphasis added)). Plaintiffs‟ allegata are
thus logically incompatible with but-for causation. Having themselves alleged an
alternative basis for the adverse employment action, plaintiffs cannot show that
their protected activity was the but-for cause of their terminations. See Nassar, 133
S. Ct. at 2533; see also Burton, 990 F. Supp. 2d at 510-110. The court will dismiss
plaintiffs‟ retaliation claim.

3

The alternative reason that plaintiffs proffer for their termination—that
McNeil retaliated against them for reporting violations of the FDA‟s consent
decree—falls outside the purview of Title VII. See 42 U.S.C. § 2000e-2(a).
9

C.

Wrongful Termination

McNeil asserts that the court must dismiss plaintiffs‟ wrongful termination
claim because the complaint does not establish a violation of Pennsylvania public
policy. (See Doc. 16 at 14-16). Under Pennsylvania law, employers may terminate
employees “for any or no reason” unless the employee is subject to an employment
agreement. Shick v. Shirey, 716 A.2d 1231, 1233 (Pa. 1998) (quoting Geary v. U.S.
Steel Corp., 319 A.2d 174, 176 (Pa. 1974)). The Pennsylvania Supreme Court,
however, has carved an exception to the at-will employment doctrine: employees
may bring wrongful termination claims when their termination “would violate a
„clear mandate of public policy.‟” McLaughlin v. Gastrointestinal Specialists, Inc.,
750 A.2d 283, 313 (Pa. 2000) (quoting Geary, 319 A.2d at 180). The exception applies
only when the Pennsylvania legislature formulates a public policy or “a given policy
is so obviously for or against public health, safety, morals, or welfare that there is a
virtual unanimity of opinion in regard to it.” Weaver v. Harpster, 975 A.2d 555, 563
(Pa. 2009) (quoting Mamlin v. Genoe, 17 A.2d 407, 409 (Pa. 1941)).
Plaintiffs aver that McNeil terminated their employment in “retaliation for
complaining about their supervisor‟s failure to adhere to FDA regulations and Good
Manufacturing Practices.” (Doc. 21-1 at 14). The Pennsylvania Supreme Court
has made clear that “a bald reference to a violation of a federal regulation” will not
bring a claim within the scope of the state‟s public policy exception. McLaughlin,
750 A.2d at 320. Rather, a plaintiff must demonstrate specifically that the “public
policy of the Commonwealth is implicated.” Id. (emphasis added). Plaintiffs make

10

no such showing. The court will accordingly grant McNeil‟s motion and dismiss
plaintiffs‟ wrongful termination claim.
D.

Leave to Amend

The flaws identified in plaintiffs‟ retaliation and wrongful termination claims
are principally factual. The court harbors some doubt concerning plaintiffs‟ ability
to resurrect these claims; nonetheless, we can envision certain facts which might
resolve the present defects therein. Accordingly, the court will grant plaintiffs leave
to amend their retaliation and wrongful termination claims to endeavor to cure the
deficiencies identified in this memorandum. See Fletcher-Harlee Corp., 482 F.3d at
251; Grayson, 293 F.3d at 108.
Plaintiffs‟ hostile work environment claims, however, must be dismissed
without leave to amend. McNeil terminated plaintiffs on June 25, 2015. (Doc. 1
¶ 40). The 300-day deadline for filing charges with the EEOC expired on April 20,
2016, foreclosing the filing of new charges at this juncture. See 42 U.S.C. § 2000e5(e)(1). Amendment would thus be futile. The court will dismiss plaintiffs‟ hostile
work environment claims with prejudice.
IV.

Conclusion
For the foregoing reasons, the court will grant McNeil‟s motion (Doc. 12) to

dismiss plaintiffs‟ complaint. An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

February 23, 2017