Douglas v. Nesbit et al
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 6/9/17. (rw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MAJOR WESLEY E. NESBIT, et al.,
Before the Court is Plaintiff Mark Douglas’ opposed motion for leave to file a second
amended complaint, submitted together with a proposed amended pleading. (Doc. No. 17.) For
the reasons provided herein, the Court will deny Plaintiff’s motion for leave to file a second
amended complaint and will close the case.
Plaintiff Mark Douglas commenced this action on September 6, 2016 through the filing
of a complaint against Defendants Major General Wesley E. Nesbit, Brigadier General Anthony
J. Carrelli, and Deborah Nesbella, asserting claims of race and age discrimination in the context
of his previous employment with the Pennsylvania Department of Military and Veterans Affairs
as a unit clerk at the Hollidaysburg Veterans Home.1 (Doc. No. 1.) On December 21, 2016,
Plaintiff filed an amended two-count, six-page complaint.2 (Doc. No. 6.)
As noted by Defendants, this constituted Plaintiff’s third attempt at litigating an action based on
the underlying facts of this case. See Mark Douglas v. Dep’t of Military & Veterans Affairs, et
al., Doc. No. 1:14-cv-00297 (M.D. Pa. 2014); Mark Douglas v. Dep’t of Military & Veterans
Affairs, et al., Doc. No. 1:15-cv-01740 (M.D. Pa. 2015).
Plaintiff amended the caption of his complaint to name Deborah Nesbella as a Defendant in her
In that amended complaint, Plaintiff alleged that on or about September 4, 2012,
approximately six months into his employment as a unit clerk, “Defendant’s agents met with
Plaintiff in a pre-disciplinary conference,” where he was provided with a number of employee
evaluations, rating his work as “unsatisfactory.” (Id.) Plaintiff asserted that, following this “predisciplinary conference,” he was notified that he would be terminated from employment
effective September 10, 2012 due to his “poor performance.” (Id. at ¶ 8.) Plaintiff appeared to
contest in his amended complaint that Defendants had failed to comply with certain disciplinary
procedures prior to his termination. 3 (Id. at ¶ 9.) He further averred that “[o]ut of the five unit
clerks in Plaintiff’s department,” Plaintiff was the only African American unit clerk employed at
the Hollidaysburg Veterans home over the age of 50. Through his amended complaint, Plaintiff
brought claims of race discrimination and age discrimination “in the form of wrongful discharge
in violation of 42 U.S.C. § 1981 governing employment actions brought against state actors and
42 U.S.C. § 1981 governing employment actions through 42 U.S.C. § 1983.” (Id. at ¶¶ 20, 28.)
Defendants Carrelli and Nesbella filed a motion to dismiss Plaintiff’s amended complaint
on December 22, 2016 (Doc. No. 8), which the Court granted in a Memorandum and Order
entered on March 16, 2017 (Doc. Nos. 15, 16). In its March 16, 2017 Memorandum and Order,
the Court: (1) sua sponte dismissed Defendant Nesbit for failure to serve process within 90 days
of filing the complaint as required by Rule 4(m) of the Federal Rules of Civil Procedure; (2)
Specifically, Plaintiff alleged as follows:
Prior to the pre-disciplinary conference, Plaintiff was not given notice of any
performance evaluations despite the fact that he was given a report that was
purportedly his 90 day evaluation. The purported 90-day evaluation was not
given to Plaintiff [n]or was he aware of the reports existence prior to a later
grievance hearing held in January 2013.
(Id. at ¶ 9.)
granted Defendants’ motion to dismiss the claims brought against Defendant Carrelli in his
official capacity with prejudice on sovereign immunity grounds; (3) granted Defendants’ motion
to dismiss Plaintiff’s claim of unlawful race discrimination under 42 U.S.C. § 1981 against
Defendant Nesbella for failure to adequately plead facts demonstrating her personal involvement
in the alleged acts of misconduct and for failure to allege facts from which a discriminatory
animus on the part of Defendant Nesbella might be inferred; and (4) granted Defendants’ motion
to dismiss Plaintiff’s claim of unlawful age discrimination under § 1981 as non-cognizable. Id.
In granting Defendants’ motion to dismiss, the Court, noting Plaintiff’s request to further amend
his operative pleading in his oppositional brief to Defendants’ motion to dismiss, afforded
Plaintiff a final opportunity to file a properly supported motion for leave to amend together with
a proposed second amended complaint limited to asserting Plaintiff’s age and race discrimination
claims as against Defendant Nesbella, in accordance with Local Rule 15.1(a).
Pursuant to the Court’s directive, on April 17, 2017, Plaintiff filed the instant motion for
leave to file a second amended complaint, appending to his motion a proposed amended pleading
to facilitate the Court’s review of his claims. (Doc. No. 17.) On May 4, 2017, Defendant
Nesbella filed a brief in opposition to Plaintiff’s motion for leave to file a second amended
complaint. (Doc. No. 18.) No reply brief has been filed. See L.R. 7.7 (“A brief in reply to
matters argued in a brief in opposition may be filed by the moving party within fourteen (14)
days after service of the brief in opposition.”). Accordingly, this matter is now ripe for
Federal Rule of Civil Procedure 15(a) embodies a liberal approach to amendment of
pleadings, instructing that a “court should freely give leave [to amend a pleading] when justice
so requires.” Fed. R. Civ. P. 15(a)(2); see Foman v. Davis, 371 U.S. 178, 182 (1962) (“[T]his
mandate is to be heeded.”). Indeed, “[l]eave to amend must generally be granted unless
equitable considerations render it otherwise unjust.” Arthur v. Maersk, Inc., 434 F.3d 196, 204
(3d Cir. 2006). Among the grounds that may justify a court’s denial of leave to amend are
“undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc.” Forman, 371 U.S. at 182. A
pleading will be deemed futile if, as amended, it fails to state a claim upon which relief may be
granted. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997);
Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (“Amendment of
the complaint is futile if the amendment will not cure the deficiency in the original complaint or
if the amended complaint cannot withstand a renewed motion to dismiss.”). In assessing
“futility,” a court applies the standard of legal sufficiency set forth under Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). The legal standards governing pleading practice
in federal court have shifted to a “more heightened form of pleading, requiring a plaintiff to
plead more than the possibility of relief to survive a motion to dismiss.” See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To avoid dismissal, all civil complaints must set
out “sufficient factual matter” to show that the claim is facially plausible. Id. The plausibility
standard requires more than a mere possibility that the defendant is liable for the alleged
misconduct. Indeed, “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Fed. R. Civ. P.
8(a)(2)). Factual allegations must be enough to raise a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The United States Court of Appeals for the Third Circuit has identified the following
steps a district court must take when evaluating the sufficiency of a complaint’s allegations as
tested against a Rule 12(b)(6) motion: (1) identify the elements a plaintiff must plead to state a
claim; (2) discard any conclusory allegations contained in the complaint “not entitled” to the
assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained
in the complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted).
In evaluating whether a complaint fails to state a claim upon which relief may be
granted, the court must accept as true all factual allegations in the complaint, and construe all
reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff. See In re
Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). A court “need not credit a
complaint’s ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to dismiss,” Morse
v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997), and must disregard any
“formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555.
Additionally, a court may not assume that a plaintiff can prove facts that the plaintiff has not
alleged. Associated Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519,
526 (1983). In deciding a Rule 12(b)(6) motion, the court may consider, in addition to the facts
alleged on the face of the complaint, any exhibits attached to the complaint, “any matters
incorporated by reference or integral to the claim, items subject to judicial notice, [and] matters
of public record.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citation
and quotation marks omitted).
By his motion, Plaintiff moves for leave to add Kelly Smith,4 Assistant Director of
Nursing for Hollidaysburg Veterans Home, as a named defendant in this action, and to
supplement his race and age discrimination claims with additional factual allegations. (Doc. No.
17.) Accompanying his motion is a proposed two-count second amended complaint, totaling
seven pages in length. (Doc. No. 17-1.) Defendant Deborah Nesbella, in opposition to
Plaintiff’s motion for leave to file a second amended complaint, argues that Plaintiff has failed to
cure the pleading deficiencies previously identified by the Court in its March 16, 2017
Memorandum and Order as to his race and age discrimination claims. (Doc. No. 18.) Thus,
Defendant Nesbella urges the Court to deny Plaintiff leave to further amend his pleading on the
grounds that permitting him to do so would be futile. (Id. at 5.) The Court addresses the
propriety of Plaintiff’s proposed amendments in turn.5
While Plaintiff refers to this individual as “Kelly Smith” throughout his motion for leave to
amend and his proposed amended pleading, the caption of the proposed second amended
complaint identifies this individual as “Kelly Smitt.” (See Doc. No. 17-1 at 1.)
As mentioned above, Plaintiff requests leave to amend his operative pleading to name Kelly
Smith as an additional Defendant. Plaintiff represents that Kelly Smith will not be unfairly
prejudiced by having to defend in this action should this Court permit Plaintiff to add her as a
named party-Defendant, as she received timely notice of the pendency of this action and “will
likely be represented by the Office of the Attorney General of Pennsylvania, as were all previous
defendants.” (Doc. No. 17 at 1-2.) Although Plaintiff does not refer to the relevant federal rule
applicable to the instant request in his motion papers, it is clear that Plaintiff is propounding an
argument under Federal Rule of Civil Procedure 15(c). Federal Rule of Civil Procedure 15(c)
controls whether a litigant may add a party-defendant after the applicable statute of limitations
has run on the claim. Fed. R. Civ. P. 15(c). While it appears to this Court that Plaintiff has
failed to satisfy the prerequisites of the relation-back doctrine under Federal Rule 15(c) as is
required to add Kelly Smith as a named defendant, it declines to address this matter, as the Court
finds that Plaintiff has failed to state claims of race and discrimination against Kelly Smith.
COUNT I- RACE DISCRIMINATION
Count I of Plaintiff’s proposed second amended complaint asserts a claim of unlawful
race discrimination “in the form of wrongful discharge in violation of 42 U.S.C. § 1981
governing employment actions brought against state actors and 42 U.S.C. § 1981 governing
employment actions through 42 U.S.C. § 1983.” (Doc. No. 17-1 ¶ 27.) To state a prima facie
case of race discrimination under Section 1981, a plaintiff must plead sufficient factual
allegations to raise a reasonable expectation that discovery will reveal evidence as to each of the
following elements: “(1) plaintiff is a member of a racial minority; (2) defendant intended to
discriminate on the basis of race; and (3) defendant’s discrimination concerned one or more of
the activities enumerated in the statute, which includes the right to make and enforce contracts.”
Suero v. Motorworld Auto. Grp., Inc., No. 3:16-CV-00686, 2017 WL 413005, at *6 (M.D. Pa.
Jan. 31, 2017) (citing Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001)).
Accepting as true the averments in the proposed second amended complaint, and viewing
all reasonable inferences drawn therefrom in the light most favorable to Plaintiff, the Court finds
that Plaintiff has failed to state a plausible claim of intentional race discrimination under Section
1981. Specifically, sprinkled throughout the proposed second amended complaint are the
following allegations germane to Plaintiff’s Section 1981 race discrimination claim:
On or about March 12, 2012 Plaintiff was hired by Defendant or [a]
person she was responsible for as a[ ] Unit Clerk . . . .
On or about September 4, 2012 Defendant[ ] Deborah Nesbella[ ] and/or
her agents met with Plaintiff in a pre-disciplinary conference in which
Plaintiff was given employee evaluations in which his work was
characterized as unsatisfactory.
After the pre-disciplinary conference, Plaintiff was notified that his
employment would be terminated effective September 10, 2012 for “poor
Out of the five unit clerks in Plaintiff’s department Plaintiff was the only
black unit clerk employed at the Hollidaysburg Veterans Home.
Plaintiff’s protected class is race (black)[.]
The reason Defendant’s agent’s cited for terminating Plaintiff, “poor
performance[,]” was a pretext for discrimination.
In support of its reason for terminating Plaintiff, the Hol[l]idaysburg
Veterans Home[ ] supplied several statements by employees complaining
of Plaintiff. The statements were all dated after the pre-disciplinary
conference and were prepared by nursing aides and others not in
Plaintiff’s chain of command.
Plaintiff believes and therefore avers that Defendant’s actions were due to
Plaintiff’s protected class of his race of African American.
(Doc. No. 17-1 at 2-5.)
Noticeably absent from the proposed second amended complaint are plausible allegations
of the circumstances surrounding Plaintiff’s employment and subsequent discharge that would
permit the Court to draw a reasonable inference that racial animus motivated the adverse
employment action of which Plaintiff now complains. Gen. Bldg. Contractors Ass'n, Inc. v.
Pennsylvania, 458 U.S. 375, 390 (1982) (noting that Section 1981 does not proscribe “practices
that [are] neutral on their face, and even neutral in terms of intent”); Gross v. R.T. Reynolds,
Inc., 487 F. App'x 711, 716 (3d Cir. 2012) (“While the [a]mended [c]omplaint alleges an
abundance of wrongdoing by [defendant] and its employees, it fails to allege any facts
supporting the conclusion that those acts were motivated by discrimination on the basis of race.
Instead, it alleges a series of unfortunate events and then states, in conclusory fashion, that the
reason for those events is that [defendant] harbored discriminatory animus towards [plaintiff].”).
Indeed, despite having previously been advised of this pleading deficiency in the Court’s
March 16, 2017 Memorandum and Order, Plaintiff continues to advance a claim of race
discrimination premised on nothing more than mere speculation that the adverse employment
decision was motivated by racial animus. Flagg v. Control Data, 806 F. Supp. 1218, 1223
(E.D.Pa.1992), aff’d, 998 F.2d 1002 (3d Cir. 1993) (“Conclusory allegations of generalized
racial bias do not establish discriminatory intent.”). Plaintiff’s bald assertion of discrimination—
“unsupported by any meaningful comments, actions, or examples of similarly-situated persons
outside of Plaintiff’s protected class being treated differently”—is simply insufficient to
withstand a motion to dismiss. Fouche v. St. Charles Hosp., 64 F. Supp. 3d 452, 457 (E.D.N.Y.
2014); see Wilkins v. Bozzuto & Assocs., Inc., No. CIV. 09-2581, 2009 WL 4756381, at *2
(E.D. Pa. Dec. 10, 2009) (denying plaintiff leave to amend his race discrimination claim on the
grounds that “[p]laintiff does not record one incident in which employees of other races were
treated differently, or an occasion in which his new supervisor expressed or displayed racial
bias”). Accordingly, because the proposed second amended complaint retains the same pleading
defects recognized by the Court in its review of Count I of Plaintiffs amended complaint, the
Court will deny Plaintiff’s motion for leave to amend as it relates to his claim of race
discrimination under Section 1981, as it finds that any attempted additional amendment of this
claim would be futile.
COUNT II- AGE DISCRIMINATION
Count II of Plaintiff’s proposed second amended complaint sets forth a claim of unlawful
age discrimination “in the form of wrongful discharge in violation of 42 U.S.C. § 1981
governing employment actions brought against state actors and 42 U.S.C. § 1981 governing
employment actions through 42 U.S.C. § 1983.” (Doc. No. 17-1 ¶ 5.)
Curiously, the allegations forming the basis of Plaintiff’s proposed claim of age
discrimination are identical to the averments contained in Count II of the currently operative
amended complaint. As this Court explained in its March 16, 2017 Memorandum and Order
dismissing Count II of Plaintiff’s amended complaint, Sections1981 and1983—the statutes upon
which Plaintiff relies to assert his age-based discrimination claim—do not support a cause of
action for discrimination on the basis of age. The exclusive federal remedy for claims of age
discrimination in employment is the Age Discrimination in Employment Act (“ADEA”).
Hildebrand v. Allegheny Cty., 757 F.3d 99, 108 (3d Cir. 2014) (“[W]e join with the majority of
Courts of Appeals in concluding that Congress intended the ADEA to be the exclusive remedy
for claims of age discrimination in employment.”). Notwithstanding the Court’s reasoned
dismissal of Count II of Plaintiff’s amended complaint, Plaintiff did not avail himself of the
opportunity to amend Count II, opting instead to stand on his non-cognizable claim of age
discrimination in his proposed second amended complaint. Accordingly, the Court will deny
Plaintiff’s motion for leave to amend as it relates to Count II of Plaintiff’s proposed second
amended complaint for failure to state a cognizable age discrimination claim under the ADEA.
In light of the foregoing, and noting that this proposed second amended complaint
reflects Plaintiff’s fifth unsuccessful attempt at pursuing claims of race and age discrimination
arising out of the same set of operative facts, the Court finds that the exercise of its discretion in
this context calls for the denial of Plaintiff’s motion for leave to file a second amended
complaint, as Plaintiff has failed to state a claim upon which relief can be granted. (Doc. No.
17.) An Order consistent with this Memorandum follows.
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