Bryant v. Wilkes-Barre Hospital Company, LLC

Filing 23

MEMORANDUM (Order to follow as separate docket entry) re 17 10 .Signed by Honorable Malachy E Mannion on 2/10/15. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ANEESHA BRYANT,

:

Plaintiff

:

v.

:

CIVIL ACTION NO. 3:14-CV-1062
(JUDGE MANNION)
WILKES-BARRE HOSPITAL,
COMPANY, LLC,

:
:

Defendant
:
MEMORANDUM
Pending before the court is the defendant’s amended motion to dismiss
all counts of the plaintiff’s complaint, (Doc. 10), on the grounds that plaintiff
failed to plausibly plead sufficient factual matter to state claims upon which
relief can be granted. Based upon the court’s review of the relevant
documents, the court will DENY the defendant’s motion.
I.

PROCEDURAL BACKGROUND
By way of relevant background, the plaintiff, Aneesha Bryant, filed the

instant action, (Doc. 1), on June 2, 2014, under Title VII of the Civil Rights
Act of 1964, as amended, namely, 42 U.S.C. §2000e, et seq., the Civil Rights
Act of 1870, namely, 42 U.S.C. §1981, as well as state law, namely, the
Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §955. Plaintiff seeks
declaratory relief under 28 U.S.C. §2201 and §2202. Plaintiff attached as
exhibits (A & B) to her complaint a copy of her November 26, 2012 Charge of
Discrimination she filed with the Equal Employment Opportunity Commission

1

(“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”),
(Doc. 1, at 24-29, Ex. A), and a copy of her August 28, 2012 resignation letter
to Lisa Cernera, the director of the surgery center for defendant, from her
employment with defendant, (Doc. 1, at 29, Ex. B). The defendant is plaintiff’s
prior employer, Wilkes-Barre Hospital Company, LLC (“WBHC”), doing
business as Wilkes-Barre General Hospital, located on North River Street,
Wilkes-Barre, Pennsylvania.
It is alleged that this court has subject matter jurisdiction over plaintiff’s
federal claims based on 28 U.S.C. §1331 and §1343(a), and on 42 U.S.C.
§2000e-2(a), and that the court can exercise jurisdiction over plaintiff’s
pendent state claims under 28 U.S.C. §1367. Plaintiff states that venue is
proper in this court under 28 U.S.C. §1391 since the alleged unlawful
employment practices occurred in the Middle District of Pennsylvania.
After defendant was served, it filed an original motion to dismiss the
complaint on July 21, 2014, pursuant to Fed.R.Civ.P. 12(b)(6), and argued,
in part, that plaintiff failed to exhaust her administrative remedies with respect
to her race-based discrimination, harassment and retaliation claims under
Title VII and the PHRA. Subsequently, defendant was advised by plaintiff that
she received a Notice of Right to Sue from the EEOC dated July 15, 2014.
Thus, defendant withdrew its original motion to dismiss. (Doc. 9). On July 22,
2014, defendant filed an amended motion to dismiss under Rule 12(b)(6),
12(f), and 12(e). (Doc. 10). On August 1, 2014, defendant filed its brief in
support. (Doc. 11). Plaintiff filed her brief in opposition on August 18, 2014,
with copies of unpublished decisions attached. (Doc. 13). On September 4,
2014, defendant filed its reply brief. (Doc. 16). As such, defendants' amended
motion to dismiss is ripe for disposition.

2

On September 10, 2014, plaintiff filed a motion for the court to conduct
oral argument on defendant’s motion and defendant concurred in the request.
(Doc. 17). The court indicated that it would take the request under advisement
until it reviewed the briefs of the parties. (Doc. 18). After reviewing the briefs,
the court does not find that oral argument is necessary and/or would be
helpful in deciding defendant’s motion. As such, the court will deny plaintiff’s
motion to conduct oral argument.
II.

FACTUAL BACKGROUND1
Plaintiff, an African-American, began her employment with defendant in

April of 2008, as an operating room scheduling specialist. (Doc. 1, ¶’s 15-16).
All of the other people employed by defendant at its same day surgery center
where plaintiff worked were Caucasians. (Doc. 1, ¶ 20). During her
employment, a Caucasian co-worker named Amy Stewart began to mock
plaintiff about her pronunciations of certain words and began to pronounce
certain words incorrectly around plaintiff on a regular basis through August of
2012, such as “birfday” as opposed to “birthday” and “aks” instead of “ask”.
(Doc. 1, ¶’s 22-25). Despite plaintiff’s objections to the verbal mockery,
Stewart did not stop. Plaintiff also avers that on “at least one occasion”, she
asked Stewart where she heard such pronunciations and Stewart responded
from “the colored station” apparently referring to the Black Entertainment
Television network. (Doc. 1, ¶’s 26-27). Further, on one occasion during the
summer of 2012, Dr. Glen Weaver, a Caucasian physician employed by
1

The facts alleged in plaintiff’s complaint must be accepted as true in
considering defendant’s motion to dismiss. See Dieffenbach v. Dept. of
Revenue, 490 Fed.Appx. 433, 435 (3d Cir. 2012); Evancho v. Evans, 423
F.3d 347, 350 (3d Cir. 2005).
3

defendant, asked plaintiff “what do you eat, chicken and watermelon?” (Doc.
1, ¶ 28). Plaintiff informed Weaver that she was offended by his question and
Weaver responded, “Come on, people tell Polack jokes all the time.” (Doc. 1,
¶’s 29-30).
On August 16, 2012, Stewart again made the mocking comments,
namely, “birfday” and “aks”, at the front counter in the workplace in plaintiff’s
presence and plaintiff became visibly upset. Immediately thereafter, Weaver
asked plaintiff “Why do you say ‘birfday’ and ‘aks’?” (Doc. 1, ¶’s 31-34).
Plaintiff then went to Mike Padden, the director of defendant’s same day
surgery center, and complained about the verbal, racial harassment. Later
that day, Stewart approached plaintiff and indicated that she was aware of
plaintiff’s complaint to Padden about her and she accused plaintiff of trying to
get her fired. When plaintiff arrived at her next scheduled work day, she
immediately observed that her co-workers were not speaking to her, and on
one occasion, her co-workers failed to give her the schedule which was a
required document to perform her job. (Doc. 1, ¶’s 36-40). Plaintiff states that
the conduct of her co-workers caused her to become very uneasy and
emotionally stressed. It affected her work performance and she found herself
near tears. (Doc. 1, at 30, Ex. B, resignation letter of plaintiff).
On August 22, 2012, plaintiff went to Padden and complained that her
co-workers were not speaking to her and refused to give her documents
required to perform her job. Padden advised plaintiff that he spoke to Stewart
about plaintiff‘s complaints and that he told Stewart that he did not know if she
would lose her job. Padden also told plaintiff that “everyone seemed a little
weird right now.” (Doc. 1, ¶ 41 and Ex. B).
On August 24, 2012, plaintiff went to Lisa Cernera and complained to

4

her about the verbal, racial harassment by her co-workers and about the
refusal of her co-workers to speak to her and to cooperate with her so she
could perform her job. Cernera advised plaintiff that she could not identify with
plaintiff since she was not black and told plaintiff that her mother still referred
to black people as “colored”. (Doc. 1, ¶’s 42-43).
Plaintiff states that since defendant did not take any action to remedy
the racial harassment and retaliation, she gave Cernera her resignation letter
on August 28, 2012, stating that her last day at work would be September 7,
2012. (Doc. 1, ¶ 46-47 and Ex. B).
As indicated, plaintiff submitted a Charge of Discrimination with the
EEOC and the PHRC signed on November 26, 2012, alleging discrimination,
harassment, retaliation and constructive discharge due to race, color and
national origin. (Doc. 1, at 24-29, Ex. A). Plaintiff received a Notice of Right
to Sue from the EEOC dated July 15, 2014.2
After plaintiff exhausted her administrative remedies, she filed the
instant complaint. In Count I, plaintiff raises a claim of race discrimination in
violation of Title VII. In Count II, plaintiff raises a claim of race discrimination
under §1981. In Count III, plaintiff raises a retaliation claim under Title VII, and
in Count IV, she asserts a retaliation claim under §1981. In Count V, plaintiff
raises a claim of race discrimination under §955(a) of the PHRA. In Count VI,
plaintiff raises a claim of retaliation under §955(d) of the PHRA. In Count VII,
plaintiff raises a claim of racial harassment under Title VII, and in Count VIII
2

Plaintiff must exhaust her administrative remedies before she can file
a Title VII action and an action under the PHRA in federal court. See McIntyre
v. City of Wilmington, 360 Fed. Appx. 355, 356 (3d Cir. 2010)(citation
omitted); Kern v. Schuylkill Inter. Unit 29, 2010 WL 235107, *3 (M.D. Pa.).
5

(mislabeled as Count VII), plaintiff asserts a claim of racial harassment under
§1981.Finally, in Count IX, plaintiff raises a claim of racial harassment under
§955(a) of the PHRA.
As relief, plaintiff seeks a declaratory judgment that defendant engaged
in discrimination in violation of state and federal law, a permanent injunction
enjoining defendant from discriminating against its employees based on their
race, back pay, front pay, compensatory and punitive damages, as well as
costs and attorneys’ fees.
III.

STANDARD OF REVIEW
The defendant’s motion to dismiss is brought in part pursuant to the

provisions of Fed.R.Civ.P. 12(b)(6). Defendant argues that under Rule
12(b)(6), Counts I, II and V of plaintiff‘s complaint as well as Counts VII-IX,
raising claims for racial harassment, should be dismissed for failure to state
a cognizable claim. This rule provides for the dismissal of a complaint, in
whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of”

6

necessary elements of the plaintiff’s cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). However, “[d]ismissal without leave to
amend is justified only on the grounds of bad faith, undue delay, prejudice, or

7

futility.” Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).
Defendant filed, in the alternative, a motion for a more definite
statement, in accordance with Rule 8(a) and Rule 12(e) of the Federal Rules
of Civil Procedure. Defendant contends that it is unclear what specific causes
of action are plead in Counts I, II and V of plaintiff‘s complaint. The court can
direct plaintiff under Rule 12(e) to file an amended complaint if she failed to
state her claims in her initial complaint with enough specificity in accordance
with Rule and the requirements set out by the United States Supreme Court
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Rule 12(e) provides
that the court can require plaintiff to file a more definite statement if a pleading
is so vague or ambiguous that the moving party cannot reasonably prepare
a response. In Thomas v. Independence Tp., 463 F.3d 285, 301 (3d
Cir.2006), the United States Court of Appeals for the Third Circuit stated:
Under Rule 12(e), a defendant may move for a more
definite statement “[i]f a pleading ... is so vague or
ambiguous that a party cannot reasonably be required to
frame a responsive pleading.” Fed.R.Civ.P. 12(e). The Rule
12(e) “motion shall point out the defects complained of and
the details desired.” Id. When a complaint fashioned under
a notice pleading standard does not disclose the facts
underlying a plaintiff's claim for relief, the defendant cannot
reasonably be expected to frame a proper, fact-specific ...
defense.... The Rule 12(e) motion for a more definite
statement is perhaps the best procedural tool available to
obtain the factual basis underlying a plaintiff's claim for
relief.
Defendant also argues that under Rule 12(f), Counts I, II and V of
plaintiff‘s complaint should be stricken as redundant and immaterial. In Tennis
v. Ford Motor Co., 730 F.Supp.2d 437, 443 (W.D.Pa. 2010), the court
explained as follows regarding a Rule 12(f) motion:
Under Fed.R.Civ.P. 12(f) “[t]he court may strike from a
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pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Rule 12(f)
“permits the court, on its own motion, or on the timely
motion of a party, to order stricken from any pleading any
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Adams v. Cnty. of Erie,
Pa., 2009 WL 4016636 at *1 (W.D.Pa. Nov. 19, 2009)
quoting Fed.R.Civ.P. 12(f)). “The purpose of a motion to
strike is to clean up the pleadings, streamline litigation, and
avoid unnecessary forays into immaterial matters.” Natale
v. Winthrop Resources Corp., 2008 WL 2758238 at *14
(E.D.Pa. July 9, 2008) (quoting McInerney v. Moyer Lumber
& Hardware, Inc., 244 F.Supp.2d 393, 402 (E.D.Pa.2002)).
Although courts possess “considerable discretion in
disposing of a motion to strike under Rule 12(f),' such
motions are not favored and usually will be denied unless
the allegations have no possible relation to the controversy
and may cause prejudice to one of the parties, or if the
allegations confuse the issues in the case.' ” Thornton v. UL
Enterprises, LLC, 2010 WL 1005021 at *2 (W.D.Pa. March
16, 2010) (internal citations omitted). “Striking some or all
of a pleading is therefore considered a drastic remedy to be
resorted to only when required for the purposes of justice.”
Thornton, 2010 WL 1005021 at *2 ( quoting DeLa Cruz v.
Piccari Press, 521 F.Supp.2d 424, 428 (E.D.Pa.2007)
(quotations omitted)).
IV.

DISCUSSION
This court has jurisdiction with respect to plaintiff’s Title VII claims

pursuant to 28 U.S.C. §1331. See Page v. Trustees of Univ. of Pennsylvania,
222 Fed. Appx. 144, 145 n. 1 (3d Cir. 2007); Burlington v. News Corp., 759
F.Supp. 2d 580 (E.D. Pa. 2010). This Court may exercise pendent jurisdiction
over plaintiff’s state law PHRA claims pursuant to 28 U.S.C. §1367. See
Slater v. Susquehanna Co., 613 F. Supp. 2d 653, 657 (M.D. Pa. 2009).
As mentioned, in Counts I, II and V, plaintiff raises claims of race
discrimination under Title VII, §1981 and under §955(a) of the PHRA,
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respectively. In Counts III, IV and VI, plaintiff raises retaliation claims under
Title VII, §1981 and under §955(d) of the PHRA, respectively. Further, in
Counts VII, VIII (mislabeled as Count VII) and IX plaintiff raises claims of
racial harassment under Title VII, §1981 and under §955(a) of the PHRA,
respectively.3
In Howard v. Blalock Elec. Service, Inc., 742 F.Supp.2d 681, 689-90
(W.D.Pa. 2010), the court explained:
Title VII's anti-discrimination provision provides that it is an
“unlawful employment practice” for an employer “to
discriminate against any individual with respect to his [or
her] compensation, terms, conditions, or privileges of
employment, because of such individual's race, color,
religion, sex, or national origin ....” 42 U.S.C.
§§2000e–2(a)(1). In Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 63–69, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986),
the United States Supreme Court recognized that an
employer discriminates against an employee because of his
or her sex when it engages in sex-based harassment that

3

The court notes that the analysis of plaintiff‘s Title VII claims applies
equally to plaintiff’s PHRA and §1981 claims. See Rozic v.Trinity Industries,
Inc., 47 Fed. Appx. 151, 152 (3d Cir. 2002); Davis v. Tammac Corp. 127 F.
Supp. 2d 625, 629 n. 6 (M.D. Pa. 2000) (“Claims brought under the PHRA are
analyzed under the same standards as their federal counterparts.”) (Citations
omitted); Thimons v. PNC Bank, N.A., 254 Fed. Appx. 896, 897 n. 1 (3d Cir.
2007). “A claim under §1981 generally requires the same elements of proof
as an employment discrimination claim under Title VII, but ‘is limited to issues
of racial discrimination in the making and enforcing of contracts.’” Deans v.
Kennedy House, Inc., 998 F.Supp.2d 393, 414 (E.D.P.a 2014) (citations
omitted); Booker v. National R.R. Passenger Corp., 880 F.Supp.2d 575, 580
(E.D.Pa. 2012) (“[T]he substantive elements of a claim under section 1981
are generally identical to the elements of an employment discrimination claim
under Title VII.”) (quoting Brown v. J. Kaz, Inc., 581 F.3d 175, 182 (3d
Cir.2009)).
10

is sufficiently “severe or pervasive” to alter the “terms,
conditions, or privileges” of his or her employment. The
holding in Meritor Savings Bank applies with equal force to
harassment based on an individual's race, color, religion or
national origin. Abramson v. William Paterson College of
New Jersey, 260 F.3d 265, 276, n. 5 (3d Cir.2001).
Harassment which does not alter the “terms, conditions, or
privileges” of one's employment, however reprehensible it
may be, does not run afoul of Title VII. Meritor Savings
Bank, 477 U.S. at 67, 106 S.Ct. 2399. An isolated incident
amounts to a change in the “terms, conditions, or privileges”
of one's employment only if it is “extremely serious.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118
S.Ct. 2275, 141 L.Ed.2d 662 (1998). Title VII's
anti-discrimination provision prohibits only those forms of
discriminatory harassment that are severe or pervasive
enough to create a hostile or abusive working environment.
Fn3 Pennsylvania State Police v. Suders, 542 U.S. 129,
146–147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).
FN3. Race-based “hostile work environment” claims are
cognizable under §1981, since harassment that is severe
enough to alter the “terms, conditions, or privileges” of one's
employment within the meaning of Title VII is also severe
enough to affect the “benefits, privileges, terms, and
conditions of the contractual relationship” between the
employee and his or her employer within the meaning of
§1981. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,
373, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004).
“The scope of protection provided by Title VII includes protection against
a hostile work environment that is abusive to an employee on the basis of his
or her race.” Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d 535, 544 (W.D.Pa.
2009) (citing Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.2001)).
1. Counts VII-IX: Claims of Racial Harassment under Title VII,
§1981 and the PHRA
Initially, defendant argues that Counts VII, VIII (mislabeled as Count VII)
11

and IX of plaintiff’s complaint raising claims of racial harassment under Title
VII, §1981 and the PHRA should be dismissed for failure to state viable
claims. In order for an employee to establish a claim of racial harassment,
the court in Taylor v. JFC Staffing Assoc., 690 F.Supp.2d 357, 367-68
(M.D.Pa. 2009), stated that the plaintiff must show the following five elements:
(1) [plaintiff] suffered intentional harassment based on race;
(2) the harassment was severe or pervasive; [fn 4]; (3) the
harassment detrimentally affected [plaintiff]; (4) the
harassment would have detrimentally affected a reasonable
person in like circumstances; and (5) there is a basis for
employer liability [for the harassment under a theory of
respondeat superior liability].
Fn4. The Third Circuit has often stated that discriminatory
harassment must be “severe and pervasive.” See e.g.,
Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.2001);
West v. Phila. Elec. Co., 45 F.3d 744, 753 (3d Cir.1995);
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d
Cir.1990). But the Supreme Court's standard is “severe or
pervasive.” Pa. State Police v. Suders, 542 U.S. 129, 133,
124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). As the Third
Circuit recognized in Jensen v. Potter, 435 F.3d 444, 449
(3d Cir. 2006), overruled in part on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), “the difference is
meaningful, and the Supreme Court's word controls.” Id. at
n. 3. By using the disjunctive “or” the Supreme Court clearly
meant that “severe” and “pervasive” are alternative
possibilities. In other words, some conduct, although
isolated and sporadic, may be severe enough to
contaminate the workplace; whereas, other, less
objectionable, conduct must be pervasive in order to
contaminate the workplace such that it meets the threshold
under the second prong of a hostile work environment
claim.
(Citation omitted). The same standards apply to hostile work environment
claims under Title VII and the PHRA based on race discrimination with the
12

word “discrimination” substituted for the word “harassment” in elements 1-4.
See Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d 535, 544 (W.D.Pa. 2009)
(citations omitted).
“Employer liability for a racially hostile work environment caused by an
employee is not automatic.” Id. at 368 (citation omitted). The agency theory
upon which plaintiff in the present case relies to hold defendant WBHC liable
for a racially hostile work environment is “where an employer was negligent
in its failure to discipline or fire, or failure to take remedial action upon notice
of harassment. Knabe [v. Boury, 114 F.3d 407], 411 [3d Cir. 1997] (citing
Bouton, 29 F.3d at 106).” Id. As such, defendant WBHC can be held liable for
the conduct of its employees, such as Stewart and Weaver, if it “was
negligent in failing to take the appropriate remedial action upon notice of the
harassment.” Id. Plaintiff has alleged facts to show that defendant WBHC
knew or should have known of the racial harassment by Stewart and Weaver
and failed to take prompt remedial action. Thus, liability can be imputed to
defendant WBHC for the co-workers harassment in this case. Mufti v.
Aarsand & Co., Inc., 667 F.Supp.2d at 545-46.
Further, the conduct “must be extreme to amount to a change in the
terms and conditions of employment.” Faragher City of Boca Raton, 524 U.S.
775, 787-88 (1998). As defendant correctly points out, “simple teasing,
offhand comments and isolated comments (unless extremely serious) will not
amount to discriminatory changes in the conditions of employment.” (Doc. 11,
at 11) (citing Faragher City of Boca Raton, 524 U.S. at 788). “The test looks
to the totality of the circumstances, including the frequency of the
discriminatory conduct, its severity, whether it is physically threatening or
humiliating or a mere offensive utterance, and whether it interferes with an

13

employee's work performance.” Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d
at 545. (Citations omitted).
Based on plaintiff’s complaint and the allegations detailed above,
viewed as true, the court finds insufficient remedial action was taken by
plaintiff’s supervisors Padden (twice) and Cernera (once) after plaintiff put
them on notice of the racial harassment. The court agrees with plaintiff that,
at this stage of the case, she has alleged enough facts regarding the conduct
of Stewart and Weaver to establish elements 1 and 3 stated above. Plaintiff
has sufficiently shown that the conduct of Stewart and Weaver was motivated
by animus based upon her race. Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d
at 545 (“[T]he intent to discriminate can be inferred from the entire context
and the conduct of the actors involved.”). Plaintiff has also adequately
demonstrated that the harassment detrimentally affected her.
The court also disagrees with defendant that plaintiff has failed to
sufficiently allege facts to establish elements 2, 4 or 5 based on the above
detailed allegations of plaintiff’s pleading. While the court recognizes that
sporadic use of abusive language, an occasional offhanded comment and
occasional teasing in the work place are insufficient to state a claim under
Title VII, Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d at 545 (citation omitted),
plaintiff has alleged repetitive conduct by defendant’s employees which went
beyond simple teasing or occasional use of abusive language and she alleges
that the conduct sufficiently affected the conditions of her employment. The
court agrees with plaintiff that she “has alleged a continuous pattern of
mocking based on her racial characteristics” and that the “distinctly racial”
comments were directed at plaintiff in the workplace. (Doc. 13, at 18-19). As
the court in Taylor noted, “some conduct, although isolated and sporadic, may

14

be severe enough to contaminate the workplace.” 690 F.Supp.2d at 367-68
n. 4.
The court also finds that plaintiff’s complaint alleges remarks that were
sufficiently severe or pervasive for purposes of defendant’s motion to dismiss.
Despite the fact that some of the alleged conduct was not pervasive, it was
sufficiently severe at this stage of the case. As plaintiff recognizes,
defendant’s arguments (as well as most of the cases cited to by defendant)
regarding her racial harassment claims are more appropriately raised by a
summary judgment motion after discovery is complete. The court agrees with
plaintiff that “the question of whether the allegations contained in a complaint
are ultimately sufficient to prove that the discrimination was ‘severe or
pervasive’ is question properly reserved for summary judgment and trial.”
(Doc. 13, at 16). See Booker v. National R.R. Passenger Corp., 880
F.Supp.2d 575, 582 (E.D.Pa. 2012) (“Courts in this Circuit have thus ‘shown
a reluctance to dismiss a complaint at the 12(b)(6) stage when the primary
challenge to the hostile work environment claim is whether or not the conduct
in question is severe and/or pervasive,’ Grasty v. World Flavors, Inc., No.
11–1778, 2011 WL 3515864, at *9 n. 2 (E.D.Pa. Aug. 11, 2011), and the
Court will not do so in this case.”).
At this stage of the case, based on all of the circumstances, the court
finds that the racially discriminatory remarks and incidents which are alleged
in plaintiff’s complaint sufficiently rise to the level of a hostile work
environment, i.e., “one in which ‘the workplace is permeated with
discriminatory intimidation, ridicule and insult.’” Mufti v. Aarsand & Co., Inc.,
667 F.Supp.2d at 546 (citations omitted). Additionally, the court finds that
plaintiff’s complaint, considered with her resignation letter, (Doc. 1, Ex. B),

15

sufficiently allege facts to show that the conduct “unreasonably [interfered]
with her work performance”, Faragher City of Boca Raton, 524 U.S. at 787-88,
and that the harassing conduct “would have detrimentally affected a
reasonable person in like circumstances”. Taylor, 690 F.Supp.2d at 367-68.
A summary judgment motion is more appropriate for the defendant to argue
that plaintiff's alleged treatment was not sufficient to detrimentally affect a
reasonable person in her position.
Defendant also argues that plaintiff has failed to prove constructive
discharge and that this provides further support for the dismissal of her racial
harassment claims. Despite the fact that plaintiff resigned her position with
defendant WBHC, she alleges that her resignation constitutes a constructive
discharge. “An employer may be liable for constructive discharge under Title
VII.” Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d at 553 (citing Pennsylvania
State Police v. Suders, 542 U.S. 129, 143, 124 S.Ct. 2342, 159 L.Ed.2d 204
(2004)”.
“In Suders, the Supreme Court stated that a hostile-environment
constructive discharge claim ‘entails something more’ than a hostile work
environment claim, as it also requires the claimant to show ‘working
conditions so intolerable that a reasonable person would have felt compelled
to resign.’” Id. (citing Suders, 542 U.S. at 147, 124 S.Ct. 2342). Plaintiff
correctly points out that the Suders case was decided at the summary
judgment stage and that reliance on Suders in the present case at its present
posture is premature. (Doc. 13, at 25). As discussed above, the court finds
that Plaintiff has sufficiently alleged facts based on her complaint along with
her resignation letter to state an actionable hostile work environment claim,
and that plaintiff has met the more stringent requirements regarding her

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constructive discharge claim based on racial harassment. (Doc. 1 & Ex. B).
Thus, the court will deny defendant’s motion to dismiss plaintiff’s racial
harassment claims in Counts VII-IX, as well as plaintiff’s claims of
constructive discharge.
2. Counts III, IV & VI: Claims of Retaliation under Title VII,
§1981 and the PHRA
In order to properly plead a retaliation claim in violation of Title VII, a
plaintiff must prove a prima facie case by providing facts showing that: (1) she
was engaged in a protected activity; (2) she has suffered an adverse
employment action based on exercise of the protected activity; and (3) there
is a causal link between the protected activity and the adverse employment
action. Hussein v. UPMC Mercy Hospital, 466 Fed. Appx. 108, 111-12 (3d Cir.
2012) (citing Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir.
2006)); Farrell v. Planters Lifesavers Company, 206 F.3d 271, 279 (3d Cir.
2000). Further, plaintiff must show a causal connection between her
participation in a protected activity and the adverse employment action.
Thomas v. Pocono Mtn. Sch. Dist., 2011 WL 2471532, *8 (M.D.Pa. June 21,
2011). “Causation ‘may be demonstrated by evidence of circumstances that
justify an inference of retaliatory motive, such as protected conduct closely
followed by adverse action.’” Id. (citation omitted).
In Mufti, 667 F.Supp.2d at 552, the court stated:
A plaintiff must participate in a protected activity to establish
a retaliation claim. See Barber v. CSX Distribution Services,
68 F.3d 694, 700–701 (3d Cir.1995) (finding a general letter
of complaint that did not mention discrimination was not a
protected activity). Protected activity includes formal
charges of discrimination “as well [as] informal protests of
discriminatory employment practices, including making
complaints to management, writing critical letters to
customers, protesting against discrimination by industry or
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society in general, and expressing support of co-workers
who have filed formal charges.” See e.g., Sumner v. U.S.
Postal Service, 899 F.2d 203, 209 (2d Cir.1990).
However, to constitute “protected activity,” the employee
must also have a “good faith, reasonable belief that a
violation existed.” Aman v. Cort Furniture Rental Corp., 85
F.3d 1074, 1085 (3d Cir.1996).
To satisfy the third, “material adversity,” element of a retaliation claim,
plaintiff must prove that the action “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Hare v. Potter,
220 Fed.Appx. 120, 128 (3d Cir.2007) (citing Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2415 (2006)).
Further, “Title VII’s anti-retaliation provisions [42 U.S.C. §2000e-3]
protect employees who oppose employment practices made illegal by Title
VII.” Brangman v. Astrazeneca, LP, 952 F.Supp.2d 710, 721 (E.D.Pa. 2013)
(citation omitted). “The Plaintiff must therefore be opposing employment
practices made illegal by Title VII.” Id. (citation omitted). Also, “case law has
established that opposition to an illegal employment practice must identify the
employer and the practice – if not specifically, at least by context.” CurayCramer v. Ursuline Academy of Wilmington, Delaware, Inc., 450 F.3d 130,
135 (3d Cir. 2006). Moreover, “[a] general complaint of unfair treatment is
insufficient to establish protected activity under Tile VII.” Curay-Cramer v.
Ursuline Academy of Wilmington, Delaware, Inc., 450 F.3d at 135(citations
omitted). “[T]o succeed on a Title VII retaliation claim, an employee must have
an ‘objectively reasonable’ belief that the activity he opposes constitutes
unlawful discrimination under Title VII.” Ferra v. Potter, 324 Fed.Appx. 189,
192 (3d Cir. 2009)(citation omitted). Thus, in order for plaintiff’s complaints
about her treatment by Stewart and Weaver to constitute protected activity

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under Title VII, a reasonable person must believe that the conduct
complained of violated Title VII. Id. (citation omitted); Barber v. CSX
Distribution Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (complaints about
unfair treatment in general and expressions of dissatisfaction in the workplace
“do[] not constitute the requisite ‘protected conduct’ for a prima facie case of
retaliation.”).
In Hussein, 466 Fed. Appx. at 112., the Third Circuit stated the following
about the PHRA in relation to Title VII:
The PHRA, which we generally interpret consistently with
Title VII, likewise forbids employers from retaliating against
employees for asserting their rights under the PHRA. See
Fogleman v. Mercy Hosp., 283 F.3d 561, 567 (3d Cir.
2002)(“The language of the PHRA is . . . substantially
similar to [Title VII and other federal] anti-retaliation
provisions, and we have held that the PHRA is to be []
interpreted as identical to federal anti-discrimination laws
except where there is something specifically different . . . .”)
(citing Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir.
1996)).
Therefore, the court analyzes plaintiff’s Title VII retaliation claim and her
PHRA retaliation claim under the aforementioned Title VII retaliation prima
facie requirements.
In examining the above detailed facts alleged in plaintiff’s complaint in
relation to the pleading requirements of Rule 8(a), the court finds that plaintiff
has pled her retaliation claims with enough factual sufficiency and has
properly pled the elements necessary to successfully state a prima facie
retaliation claim under both Title VII and the PHRA. Plaintiff alleges that on
three occasions she made complaints to her supervisors about racial
discrimination and harassment by defendant’s employees and, that as a result
of her complaints, the conditions of her workplace were made intolerable by
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her co-workers, including their refusal to speak to her, their shunning and
ignoring of her, and their refusal to provide her (a scheduling specialist) with
the necessary and essential documents (i.e., the surgery schedule) to perform
her job. Thus, as plaintiff argues, she has not only alleged that she was
ignored and shunned at work after her complaint about racial discrimination
and harassment to supervisors, but she has also alleged that defendant’s
employees deliberately interfered with her work to the extent that she could
not perform her job. The court also finds that an objectively reasonable person
could believe that the remarks made by Stewart and Weaver and the
incidents complained about constitute unlawful discrimination.
Therefore, the court will deny defendant’s motion to dismiss plaintiff’s
retaliation claims in Counts III, IV and VI.
3. Counts I, II & V: Claims of Race Discrimination under Title VII,
§1981 and the PHRA
Defendant argues that Counts I, II and V of plaintiff’s complaint raising
claims of race discrimination under Title VII, §1981 and the PHRA should be
dismissed under Rule 12(b)(6), stricken under Rule 12(f), or alternatively, be
subject to more specific pleading under Rule 12(e).
In Page v. Trustees of Univ. of Pennsylvania, 222 Fed. Appx. 144, 145
(3d Cir. 2007), the Third Circuit stated:
To establish a prima facie case of Title VII [sex or race]
discrimination, [Plaintiff] must show (1) that she belongs to
a protected class, (2) that she suffered an adverse
employment action (3) under circumstances leading to an
inference of unlawful discrimination. See Jones v. Sch. Dist.
of Philadelphia, 198 F.3d 403, 410 (3d Cir.1999).
See also Burlington v. News Corp., 759 F.Supp. 2d 580, 592 (E.D. Pa. 2010)
(citations omitted). Section 2000e-2(m) of Title VII (42 U.S.C.) provides, in
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pertinent part, that “an unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex, or national
origin was a motivating factor for any employment practice, even though other
factors also motivated the practice.” Title VII “prohibits employers from
discriminating against individuals on the basis of their race, color, religion,
sex, or national origin.” Burton v. Teleflex, Inc., 707 F.3d 417, 426 n. 7 (3d Cir.
2013) (citing 42 U.S.C. §20002-2(a)(2)).
Thus, Title VII “by its terms outlaws treating employees of one race
differently from another race.” Burlington, 759 F.Supp.2d at 596. The Court
in Burlington v. News Corp., 759 F.Supp. 2d at 592-593, also stated:
Although showing that similarly situated coworkers were
treated more favorably than the plaintiff is one method of
satisfying the final element of a prima facie case of
discrimination, it is not the only one. The Third Circuit has
explained that although some circuits have required
plaintiffs to make such a showing in discrimination cases,
“that is not the current law in this or the majority of the
circuits.” Sarullo, 352 F.3d at 798 n. 7 (citations omitted).
Indeed, the Third Circuit has counseled in Sarullo and
elsewhere that the prima facie case is intended to be a
flexible standard. See id. at 797–98 (“[T]he prima facie test
remains flexible and must be tailored to fit the specific
context in which it is applied.” (citing Geraci v.
Moody–Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir.1996)));
see also Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.2007)
(the prima facie test must be “tailored to fit the specific
context in which it is applied” (quoting Sarullo, 352 F.3d at
797–98) (internal quotation marks omitted)); Weldon v.
Kraft, Inc., 896 F.2d 793, 798 (3d Cir.1990) (“The
framework set forth in McDonnell Douglas, which begins
with proof of a prima facie case, was ‘never intended to be
rigid, mechanized, or ritualistic.’ ” (quoting Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57
L.Ed.2d 957 (1978))). The Third Circuit has stated that to
establish a prima facie case, it is sufficient for a plaintiff to
adduce evidence that “establishes a causal nexus between
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the harm suffered and the plaintiff's membership in a
protected class, from which a juror could infer, in light of
common experience, that the defendant acted with
discriminatory intent.” Anderson v. Wachovia Mortg. Corp.,
621 F.3d 261, 275 (3d Cir.2010) (discussing prima facie
case in §1981 context); Sarullo, 352 F.3d at 798 (plaintiff
“must establish some causal nexus between his
membership in a protected class” and the adverse
employment decision to establish a prima facie case of
discrimination in Title VII case).
Also, “the burden to establish a prima facie case is not an onerous one.”
Young v. St. James Management, LLC, 749 F.Supp. 2d 281, 288 (E.D. Pa.
2010). The elements are dependent on the facts of the specific case. Id.
(citation omitted).
Defendant argues that plaintiff “has wholly failed to allege any facts that
support the second and third prongs of the test.” (Doc. 11, at 23). The court
does not agree. As thoroughly discussed above, the court finds that plaintiff
has alleged enough facts to show that she was subjected to adverse
employment actions and that they were under circumstances leading to an
inference of unlawful race discrimination. The court has also found that
plaintiff has stated sufficient facts to support her constructive discharge claim.
Thus, the court will not repeat its discussion, and it will deny defendant’s
motion to dismiss plaintiff’s race discrimination claims.
The court also finds that plaintiff’s race discrimination claims are not
redundant and immaterial under Rule 12(f) and that plaintiff has adequately
plead these claims in her complaint. Additionally, the court will deny
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defendant’s alternative request to direct plaintiff to provide a more definite
statement under Rule 12(e) as to the distinct causes of action raised in
Counts I, II and V.

V.

CONCLUSION
Accordingly, the court will DENY defendant’s amended motion to

dismiss plaintiff’s complaint. (Doc. 10). The court will DENY plaintiff’s motion
to conduct oral argument. (Doc. 17). An appropriate order will follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATED: FEBRUARY 10, 2015
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