Thourot v. Monroe Career & Technical Institute et al

Filing 45

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 10/17/16. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SHARON M. THOUROT,

:
CIVIL ACTION NO. 3:14-1779
:

Plaintiff,
:
v.
:

(MANNION, D.J.)
(SAPORITO, M.J.)

MONROE CAREER & TECHNICAL
INSTITUTE, THOMAS J.
:
RUSHTON, and TANYA
CARMELLA-BEERS,
:
Defendants

:

MEMORANDUM
On September 12, 2014, the plaintiff, Sharon M. Thourot (“Thourot”),
filed a pro se complaint alleging that the defendants, Monroe Career &
Technical Institute (“MCTI”), Thomas J. Rushton (“Rushton”), and Tanya
Carmella-Beers (“Beers”) discriminated against her on the basis of her sex,
age, and religion and retaliated against her for making internal discrimination
complaints to her employer MCTI. Thourot was an instructional assistant at
MCTI, a public vocational school in Monroe County, Pennsylvania. Following
her initial complaint, the plaintiff was permitted to amend her complaint twice
in order to conform her pleading to the Federal Rules of Civil Procedure and
Local Rules. Currently at issue is the plaintiff’s second amended complaint
which alleges that the defendants discriminated and retaliated against her on
the basis of her sex alone, (Doc. 30). These claims were made pursuant to

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e et seq.
and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. §951 et
seq.
The defendants now seek to dismiss the plaintiff’s current complaint as
amended, (See Doc. 32). The defendants seek dismissal on several grounds.
They seek dismissal pursuant to Federal Rule of Civil Procedure 12(B)(6),
alleging that the plaintiff has failed to state a claim for discrimination or
retaliation and failed to state valid claims against the defendants Rushton and
Beers. They also seek dismissal based on the plaintiff’s failure to follow this
court’s October 13, 2015 Order, (Doc. 28), which provided her with
instructions on how to amend her complaint to conform to the pleading rules.1
Also before the court is the September 8, 2016 Report and
Recommendation of Judge Saporito, (Doc. 37). Judge Saporito recommends
that the defendants’ motion be denied to the extent that it seeks dismissal
based on the plaintiff’s failure to follow procedures set by court order and
denied to the extent that it seeks dismissal of claims against MCTI. Judge
Saporito also recommends that all claims against defendants Rushton and
1

The defendants also seek dismissal of the plaintiff’s request for
punitive relief and request that a statutory cap be placed on plaintiff’s
demands for money judgment. The defendants did not brief this issue. Thus,
Judge Saporito did not address it, nor will this court. As the court will dismiss
the claims against defendants Rushton and Beers, the issue is moot as it
relates to them. As it relates to MCTI, further discovery will ultimately clarify
any issues relating to damages.
2

Beers be dismissed. On September 19, 2016, the plaintiff filed objections to
Judge Saporito’s recommendation that the claims against Rushton and Beers
be dismissed, (Doc. 38). On October 3, 2016 the defendants filed a brief in
opposition to the plaintiff’s objections, (Doc. 41), and the matter is now ripe for
review. Based on the following discussion, Judge Saporito’s report will be
ADOPTED IN ITS ENTIRETY and the defendants’ motion is GRANTED IN
PART and DENIED IN PART.

I.

STANDARDS OF REVIEW
A. Objections to a Report and Recommendation
When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review those portions of the report
to which objections are made de novo. 28 U.S.C. §636(b)(1); Brown v. Astrue,
649 F.3d 193, 195 (3d Cir. 2011). The extent of review, however, is committed
to the sound discretion of the district judge, and the court may rely on the
recommendations of the magistrate judge to the extent it deems proper.
Rieder v. Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000) (citing United
States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good practice, "satisfy itself
that there is no clear error on the face of the record in order to accept the

3

recommendation." Fed. R. Civ. P. 72(b), advisory committee notes; see also
Univac Dental Co. v. Dentsply Intern., Inc., 702 F. Supp. 2d 465, 469 (M.D.
Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987))
(explaining that judges should give some review to every report and
recommendation). Nevertheless, whether timely objections are made or not,
the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
§636(b)(1); Local Rule 72.3.
B. Motion to Dismiss
The defendants’ motion to dismiss is brought, in part, pursuant to
Federal Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) 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. In reviewing such a motion, the court must
“accept all factual allegations as true, construe the [c]omplaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable
reading of the [c]omplaint, the plaintiff may be entitled to relief.” Fleisher v.
Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (internal quotation marks
and citation omitted). It is the moving party that bears the burden of showing
that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750
(3d Cir. 2005).

4

Dismissal on Rule 12(b)(6) grounds 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, 547 (2007). The facts alleged must
be sufficient to “raise a right to relief above the speculative level.” Id. at 555.
The plaintiff must be able to “provide the grounds of his entitlement to relief,”
which “requires more than labels and conclusions.” Phillips v. County of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and internal quotation
marks omitted) (quoting Twombly, 550 U.S. at 555). “[A] formulaic recitation
of the elements of a cause of action will not do.” Id.2
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). “Dismissal

2

The court may rely on the complaint, attached exhibits, and matters of
public record in making a determination. Sands v. McCormick, 502 F.3d 263,
268 (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., Inc., 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) (quoting 62 Fed. Proc., L.Ed. §62:508).
5

without leave to amend is justified only on the grounds of bad faith, undue
delay, prejudice, or futility.” Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

II.

DISCUSSION3
The court agrees with and adopts Judge Saporito’s conclusions,

although the court liberally construes the plaintiff’s amended complaint to
include claims under Title VII and the PHRA.4 The plaintiff has pled sufficient
facts alleging discrimination and retaliation to withstand a motion to dismiss.
Her amended complaint, though inartfully pleaded, attempts to substantially
comply with this court’s October 14, 2015 Order, making dismissal with
prejudice inappropriate on that ground. The court also agrees that the claims
against defendants Beers and Rushton must be dismissed for reasons
discussed further below.
A. The Plaintiff’s Second Amended Complaint
Although Judge Saporito briefly reviewed the plaintiff’s claims in his
report, the court will further clarify and construe the plaintiff’s pleading so as

3

The procedural history and factual background of this case are fully
provided in Judge Saporito’s report and will not be repeated herein. The
court’s construction of the plaintiff’s amended complaint is primarily to provide
clarity to the parties moving forward.
4

Judge Saporito found that all of the plaintiff’s claims arose under Title
VII. As discussed further herein, construing the plaintiff’s complaint liberally,
the court finds that the plaintiff’s claims also arise under the PHRA.
6

to provide guidance to the parties moving forward. All pleadings must be
construed so “as to do justice.” Fed. R. Civ. P. 8(e). Pro se pleadings, in
particular, must be “construed liberally.” Alston, 363 F.3d at 234. The policy
requiring courts to construe pro se pleadings liberally is “driven by the
understanding that [i]mplicit in the right of self-representation is an obligation
on the part of the court to make reasonable allowances to protect pro se
litigants from inadvertent forfeiture of important rights because of their lack of
legal training.” Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (quoting
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006))
(alteration in original).
Within her second amended complaint, the plaintiff states that her
claims arise under Title VII in a section entitled “Statement of the Claim,” (Doc.
30, at ¶9). However, it is undisputed that the plaintiff’s administrative
complaint was first made with the Pennsylvania Human Relations Commission
(“PHRC”) responsible for handling both Title VII and PHRA claims in
Pennsylvania, (See Doc. 30-1, at Ex. A). In addition, in several instances the
plaintiff references the PHRC, the PHRA, and “State Law” specifically as a
basis for her claims, (Id. at ¶¶10–11, 33, 43, 61). Though inartfully pleaded,

7

it is clear that the plaintiff intended her claims to arise under both the federal
and state anti-discrimination laws.5
Count I entitled “Removed from Duties; Sex Discrimination” alleges that
the plaintiff was discriminated against on the basis of her sex. This claim is
based on the defendants requirement that the plaintiff take an administrative
paid leave following her internal complaints of discrimination to her supervisor
at MCTI, defendant Beers, and the director of MCTI, defendant Rushton, (Id.
at 21–23, 28). It is also based on the defendants requirement that the plaintiff
sign a Performance Improvement Plan (“PIP”) while her male counterparts
were not so required, (Id. ¶¶31–32).6
5

In several instances the plaintiff also references the Pennsylvania Fair
Educational Opportunities Act (“PFEOA”), 24 Pa. Stat. §§5001–5010, by
stating that the defendants actions are made unlawful by “the PHRA or
PFEOA,” (See Doc. 30, at ¶¶33, 43). The court does not construe the
plaintiff’‘s amended complaint to include a PFEOA claim given the usage of
the word “or” in the plaintiff’s description of her claims. The court also notes
for the plaintiff that the PFEOA prohibits discrimination against students, not
employees, in order to ensure equal education opportunities. See 24 Pa. Stat.
§§5002, 5004.
In one instance, the plaintiff also makes reference to “Title IX . . .
(Pennsylvania Whistleblower Laws)” as a basis for her retaliation claims,
(Doc. 30, at ¶61). It is unclear if the plaintiff intends to reference Title IX of the
Education Amendments of 1972, 20 U.S.C. §§1681–1688 or Pennsylvania’s
Whistleblower Law, 43 Pa. Stat. §§1421–1428. Given the lack of clarity, even
under a liberal reading the court cannot construe the plaintiff’s amended
complaint to include claims under either of these laws.
6

Count I also makes reference to a hostile work environment, (Doc. 30,
at ¶25), but does not set out the basis for a hostile work environment claim
under Title VII. The court will not construe the plaintiff’s amended complaint
8

Count II entitled “Removed From Duties Retaliation-Discrimination” sets
forth a straightforward claim of retaliation based on the plaintiff’s internal
discrimination complaints, (Id. ¶33). The plaintiff alleges that the defendants
retaliated against her by forcing her to take a paid leave of absence following
her complaints and then requiring her to undergo a medical evaluation before
returning to work, (Id. ¶37–38, 42). The plaintiff’s male counterparts were not
so required, (Id. ¶42).7
Count III entitled “Discharge Retaliation – Discrimination” also alleges
retaliation. This count is based on the plaintiff’s termination after her internal
complaints of discrimination, (Doc. ¶48). The plaintiff alleges that her male
counterparts who she made complaints about were not terminated, (Id.). She
also alleges that she was terminated even though she submitted a
psychological evaluation allowing her to return to work after her paid leave
period, (Doc. ¶51–52). The plaintiff also supports Count III, and perhaps all of

to include such a claim given the title of the count (“Removed From Duties;
Sex Discrimination”) and the lack of detail provided regarding the work
environment at issue. In one instance the plaintiff herself states that she “sees
no reason to revisit to alleged attacks, assaults, word for word, (sic) as this
would be superflous,” (Doc. 30, at ¶68), leading the court to believe that the
plaintiff did not intend to revisit those allegations in her complaint.
7

The plaintiff cited to the Pennsylvania Code to support her retaliation
claim, further indicating that she intended her claims to arise under state law,
(Id. ¶37 (citing 16 Pa. Code §45.11)). The cited provision, however, is
inapplicable as it applies to discrimination in housing accommodations. See
16 Pa. Code §45.1.
9

her claims, by alleging that she was required to sign a PIP without being
provided with a union representative, (Id. ¶53).
In a section entitled “Restitution For Relief” the plaintiff makes a laundry
list of demands for relief. This list includes a public apology, restitution for lost
wages, lost tuition reimbursement, punitive damages, compensatory
damages, relief against sanctions, along with many other demands.8
B. The Plaintiff’s Discrimination and Retaliation Claims
There is no clear error in Judge Saporito’s conclusion that the plaintiff’s
discrimination and retaliation claims are sufficient to withstand the defendants’
motion to dismiss under Rule 12(b)(6) and his recommendations are adopted
in full. As more fully explained in Judge Saporito’s report, the prima facie case
for sex discrimination is governed by the framework provided in McDonnell
Douglas Corporation v. Green, 411 U.S. 792 (1973).9 This requires that the

8

In her relief section, the plaintiff also states that the “[d]efendants’ are
(sic) also being sued for charges including retaliation, negligence, removed
from duties and wrongful termination[,] and for preventing the plaintiff from
seeking union counsel for grievances,” (Doc. 31, at ¶58). The plaintiff’s
amended complaint is construed liberally to include claims under Title VII and
the PHRA alone. It will not be construed so liberally as to include claims
referenced once, located in the relief section, not separated in a count, and
lacking any further explanation or detail. This is especially true in light of this
court’s October 13, 2015 Order, (Doc. 27), explaining to the plaintiff that she
must set forth “each allegation” in a simple, concise, and direct manner.
9

The court does not distinguish between the plaintiff’s Title VII and
PHRA claims because “the same standards govern each.” McNeill v.
Greyhound Lines, Inc., 628 F. App’x 101, 103 n. 1 (3d Cir. 2015) (citing Jones
10

plaintiff show that: (1) she is a member of a protected class; (2) she was
qualified for the position in question; (3) she suffered an adverse employment
action; and (4) the adverse employment action gives rise to an inference of
discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410–11 (3d Cir.
1999). Similarly, the prima facie case for retaliation requires that the plaintiff
show that: (1) she engaged in protected activity; (2) the employer took an
adverse employment action following that activity; and (3) there is a causal
connection between the participation in the protected activity and the adverse
employment action. Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (2d
Cir. 2006).
In seeking to dismiss Counts I and II of the amended complaint, the
defendants primarily argue that requiring an employee to take paid leave is
not an adverse employment action sufficient to withstand a motion to dismiss.
An adverse employment action in the discrimination context is an action that
is “‘serious enough to alter the employee’s compensation, terms, conditions,
or privileges of employment.” Jones v. Southeastern Pa. Trans. Auth., 796
F.3d 323, 326 (3d Cir. 2015) (quoting Storey v. Burns Int’l Sec. Servs., 390
F.3d 760, 764 (3d Cir. 2004)). An adverse employment action in the retaliation
context is much broader and “extends beyond workplace-related or

v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999)); see also Jones v.
Southeastern Pa. Trans. Auth., 796 F.3d 323, 327 (3d Cir. 2015).
11

employment-related retaliatory acts and harm.” Burlington Northern and Santa
Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). The act must, however, be
“materially adverse” such that it might “dissuad[e] a reasonable worker from
making or supporting a charge of discrimination.” Id. at 68 (internal quotations
marks omitted); Moore, 461 F.3d at 341.
The defendants rely on the recent decision in Jones v. Southeastern
Pennsylvania Transportation Authority for the proposition that a suspension
with pay is not a qualifying adverse employment action under Title VII. In
Jones, the Third Circuit Court of Appeals did find that “[a] paid suspension
pending an investigation of [the] employee’s alleged wrongdoing” did not
qualify as an adverse employment action. 796 F.3d at 326. The court agreed
with findings in other circuits that a paid suspension, “without more,” could not
be an adverse employment action in the discrimination context. Id. at 325–26
(quoting Joseph v. Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)). The court explicitly
declined to decide whether the same would be true in the retaliation context.
Id. at 325.
Here, unlike Jones, the plaintiff alleges more than just a suspension
without pay. She also alleges that she was required to undergo a medical
evaluation, in addition to the suspension, while other male employees were
not. In addition, she alleges that she was required to sign a PIP without a
union representative while others were not. Lastly, unlike Jones, the plaintiff’s

12

suspension was not followed by alleged wrongdoing on her part, but possible
wrongdoing committed by others that prompted further investigation by MCTI.
Put simply, the facts of Jones do not align with the facts as provided in the
plaintiff’s complaint of discrimination. The Jones holding also does not apply
in the retaliation context. See id. at 325. Thus, as further provided in his
report, the court agrees with Judge Saporito that the plaintiff has alleged
sufficient facts to state a claim for retaliation and discrimination, including the
element of an adverse employment action. Therefore, MCTI’s motion as it
relates to the plaintiff’s discrimination and retaliation claims is denied.
C.

The Plaintiff’s Claims Against Rushton and Beers

Judge Saporito also recommends that the court grant the defendants’
motion as it relates to claims against defendants Beers and Rushton and
recommends that the claims against them be dismissed with prejudice. Judge
Saporito relied on the decision in Sheridan v. E.I. DuPont de Nemours and
Company, 100 F.3d 1061 (3d Cir. 1996) in reaching his conclusion. In
Sheridan, the Third Circuit held that individual employees cannot be held
liable under Title VII. 100 F.3d at 1077. The plaintiff objects to Judge
Saporito’s finding by explaining that she is suing Beers and Rushton in their
official, and not individual, capacity as Director and Supervisor of Pupil

13

Services at MCTI; thus, Sheridan is inapplicable.10 The plaintiff made a similar
argument in her reply brief to the defendants’ motion. After re-examining the
plaintiff’s argument, the court finds that it would not change Judge Saporito’s
ultimate conclusion. Defendants Beers and Rushton may not be sued in their
official capacity under Title VII or the PHRA and Judge Saporito’s
recommendation is adopted in full as it relates to the claims brought against
Rushton and Beers.
The Third Circuit has not ruled on the issue of whether or not individual
supervisors may be sued in their official capacity under Title VII, though
several district courts have addressed the issue directly. Sheridan is important
to the court’s analysis but not dispositive of the issue raised because it
prohibits individual capacity suits, not official capacity suits explicitly.
However, the court agrees with the large majority of courts in this circuit
holding that official capacity suits are not available under Title VII where the
employer is named as a defendant.
Title VII prohibits employers from engaging in discriminatory practices
based upon an individual’s sex. 42 U.S.C. §2000e-2(a). An “employer” is
defined as “a person engaged in an industry affecting commerce who has

10

Though it is not indicated in the plaintiff’s caption, the plaintiff’s second
amended complaint does describe Rushton and Beers as acting in their
official capacity, indicating that suit was intended to be brought against them
in their official capacity, (See Doc. 30, at ¶3).
14

fifteen or more employees . . . and any agent of such person.” Id. §2000e(b).
The “agent” provision of Title VII’s employer definition has been construed by
the Supreme Court in several instances. The Supreme Court has consistently
construed the provision as a direction from Congress that Title VII be
interpreted “based on agency principles” for purposes of determining liability
of the employer. Pennsylvania State Police v. Suders, 542 U.S. 129, 144
(2004) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998));
see also Equal Opportunity Employment Comm’n v. Grane Healthcare Co.,
2 F. Supp. 3d 667, 683 (W.D. Pa. 2014).
Despite the Supreme Court’s guidance, much has been made of
Congress’s inclusion of the phrase “and any such agent” when defining
employer. The progeny of the official/individual distinction in the Title VII
context can be traced back to pre-Sheridan cases allowing Title VII claims to
proceed against supervisors in their official capacity as “agents” of the
employer. See Verde v. City of Phila., 862 F. Supp. 1329, 1334–35 (E.D. Pa.
1994); Doe v. William Shapiro, Esquire, P.C., 852 F. Supp. 1246, 1252 (E.D.
Pa. 1994); Timmons v. Lutheran Children and Family Serv. of Eastern Pa.,
No. Civ. A. 93–4201, 1993 WL 533399, at *4–5 (E.D. Pa. Dec. 17, 1993). The
logic in these early cases reads the definition of employer in Title VII literally
to allow suits against supervisors in their official capacity as “agents” of the
employer being sued. In some instances, in reaching this conclusion the

15

courts relied on an interpretation of Title VII allowing suits against individual
supervisors, reasoning that was later overturned by Sheridan. See Doe, 852
F. Supp. at 1252 (“[C]ourts reason that individual defendants are covered by
the statute because they exercise authority conferred upon them by the
employer; thus suits . . . should be against them in their official capacities.”).
The reasoning provided in these cases is not persuasive post-Sheridan which
explicitly barred claims against supervisors in their individual capacity. Nor
does the reasoning align with the Supreme Court’s consistent direction to
construe the “agent” provision in the definition of employer as a way to
determine the liability of the employer.
Dicta provided by the Third Circuit in post-Sheridan cases has further
confused the individual/official distinction in Title VII cases. See Koslow v.
Commonwealth of Pa., 302 F.3d 161, 177 (3d Cir. 2002) (“And for the same
reasons that we have allowed Title VII claims to proceed against public
officials in their official capacities, an official sued in his official capacity is an
‘agent’ of the state employer under Title I of the ADA”) (citing In re
Montgomery County, 215 F.3d 367, 372–75 (3d Cir. 2000)); In re Montgomery
County, 215 F.3d at 372–73 (“Under Title VII, a public official may be held
liable in her official capacity only, making the doctrine of qualified immunity,
which protects against personal liability, inapplicable”). Neither of these cited

16

cases were Title VII cases; thus, they are not controlling.11 The statements
made in these cases are also not persuasive on the issue of official capacity
suits under Title VII in light of the holding in Sheridan.
In In re Montgomery, the Third Circuit was deciding whether or not the
district court appropriately ruled on a qualified immunity argument when it
mistakenly mischaracterized one of the plaintiff’s claim as a Title VII claim,
instead of a §1981 claim. 215 F.3d at 371–73. Other courts have agreed that
this dicta is unpersuasive in the Title VII context. Galm v. Gloucestor County
Coll., Civ. Action No. 06–3333 (NLH), 2007 WL 2442343, at *2 (D.N.J. Aug.
22, 2007) (“Since Montgomery County was not a Title VII case it did not, and
could not, address . . . whether a Title VII claim seeking damages may
proceed against an employee in his or her official capacity.”). The statement
made in In re Montgomery also cited to a case in the Fifth Circuit that
characterized an immediate supervisor as an “employer” under Title VII. Id.
at 373 (citing Harvey v. Blake, 913 F.2d 226, 227–28 (5th Cir. 1990)). This
logic would not apply today, post-Sheridan.
Koslow also did not deal directly with Title VII claims and, instead,
decided whether an employee could seek injunctive relief against a state
11

The court is not bound by prior dicta but “can, of course, accord dicta
as much weight as [it] deem[s] appropriate.” Galli v. New Jersey Meadowlands
Comm’n, 490 F.3d 265, 274 (3d Cir. 2007) (quoting New Castle County v.
Nat’l Union Fire Ins. Co. of Pittsburgh, 174 F.3d 338, 345 n. 7 (3d Cir. 1999));
see also In re Friedman’s Inc., 738 F.3d 547, 552 (3d Cir. 2013).
17

official under Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§12101 et seq. Koslow was an important ADA decision made after the
Supreme Court’s holding in Board of Trustees of the University of Alabama v.
Garrett, 531 U.S. 356 (2001). In Garrett, the Supreme Court held that
Congress did not have the power to abrogate state sovereign immunity in
implementing Title I of the ADA; thus, a plaintiff cannot sue a state under Title
I of the ADA to enforce its provisions. 531 U.S. at 374. In Koslow, the Third
Circuit made an analogy to Title VII to ultimately find that claims for purely
injunctive relief against state officials in the ADA context could proceed under
the legal fiction provided in Ex parte Young, 209 U.S. 123, 159–60 (1908).
302 F.3d at 177–79.
The fleeting reference to In re Montgomery as dicta in Koslow is not
enough to bind this court to the proposition stated therein and confuses the
issue of qualified immunity with the issue presented here. See also Galm,
2007 WL 2442343, at *5 (reaching the same conclusion). Title VII and Title I
of the ADA are dissimilar in that the Supreme Court has explicitly found that
Title VII coverage extends to the states. Fitzpatrick v. Bitzer, 427 U.S. 445,
453 n. 9 (1976). Thus, the legal fiction of Ex parte Young in unnecessary in
the Title VII context as employees may bring claims directly against state
employers, making suit against the supervisor duplicative.

18

Finding the dicta provided in In re Montgomery and Koslow to be noncontrolling, the court is persuaded by the line of reasoning provided by courts
in this circuit holding that suit against an employer and against the supervisor
in their official capacity is duplicative and redundant. Rich v. New Jersey, Civ.
Action No. 14–2075 (FLW) (DEA), 2015 WL 2226029, at *10 (D.N.J. May 12,
2015) (dismissing the plaintiffs’ complaint against individual supervisors in
their official capacities as “redundant”); Simon v. Shore Cab, LLC, Civ. Action
No. 13–6290, 2014 WL 2777103, at *5 (D.N.J. June 19, 2014) (relying on the
consistent reasoning provided by several opinions in the District of New
Jersey to dismiss an official capacity Title VII claim); Stallone v. Camden
County Technical Sch. Bd. of Educ., Civil No. 12–7356 (RBK/JS), 2013 WL
5178728, *5–7 (D.N.J. Sept. 13, 2013) (explicitly rejecting the finding in Verde
v. City of Philadelphia and finding an official capacity suit redundant in the
Title VII context); Young v. Bethlehem Area Vo-Tech Sch., Civ. Action No.
06–CV–2285, 2007 WL 674617, at *3 (E.D. Pa. Feb. 28, 2007) (describing
Title VII official capacity claims as “needlessly duplicative”); Foxworth v. Pa.
State Police, Civ. 03–6795, 2005 WL 840374, at *4 (E.D. Pa. Apr. 11, 2005)
(“Because the only proper employer in a Title VII case is the ‘employer,’
pursuing such claims against individuals in their official capacities would be
redundant.”), aff’d, 228 F. App’x 151 (3d Cir. 2007).

19

Official capacity suits are redundant and duplicative of the claims
against the employer. Such suits no longer comport with the clear direction
provided by the Third Circuit’s holding in Sheridan disallowing claims against
individual defendants. To allow an official capacity suit where the employer is
named as a defendant would, ultimately, be a way around the guidance in
Sheridan. This reasoning also aligns with the Supreme Court’s consistent
direction to construe the “agent” provision in the definition of employer as a
way to determine the liability of the employer using agency principles, not as
a way to hold individual supervisors liable. See Suders, 542 U.S. at 144.
There is also no reason to allow such a suit against a state entity given the
absence of sovereign immunity in the Title VII context. Thus, the issue of
sovereign immunity should not be confused with the issues presented here.
Consequently, the plaintiff’s objection that she is suing Rushton and Beers in
their official capacity is of no consequence to Judge Saporito’s ultimate
conclusion that those claims should be dismissed.
The court also sees no reason to make a different finding as it relates
to the plaintiff’s PHRA claim. The PHRA claim and Title VII are analogous and
are, typically, construed together. See Jones, 796 F.3d at 327. Just like in the
Title VII context, it would be redundant to allow suit under the PHRA against
supervisory employees in their official capacity in addition to the suit against

20

the employer directly.12 Thus, the court adopts the recommendation of Judge
Saporito in full and the claims against Rushton and Beers in their official
capacity are dismissed with prejudice.13
D.

The Plaintiff’s Compliance with Pleading Instructions

12

Claims against individuals can be maintained under the PHRA under
Section 955(e), but the plaintiff has not alleged any such claims. Section
955(e) of the PHRA provides that the following is unlawful:
For any person, employer, employment agency, labor
organization or employe, to aid, abet, incite, compel
or coerce the doing of any act declared by this section
to be an unlawful discriminatory practice, or to
obstruct or prevent any person from complying with
the provisions of this act or any order issued
thereunder, or to attempt, directly or indirectly, to
commit any act declared by this section to be an
unlawful discriminatory practice.
43 Pa. Stat. §955(e). Thus, an aiding and abetting claim against an individual
employee is viable under the PHRA. See Dici v. Commonwealth of Pa., 91
F.3d 542, 552 (3d Cir. 1996); Sampson v. Methacton Sch. Dist., 88 F. Supp.
422, 446 (E.D. Pa. 2015); Nolan v. Duffy, 542 F. Supp. 2d 429, 432 (E.D. Pa.
2008).
The plaintiff has indicated on several occasions that her suit is brought
against Rushton and Beers in their official and not individual capacity, (See
Doc. 30, at ¶3; Doc. 36, at 16; Doc. 38). This is the entire premise of the
plaintiff's objections. Thus, even under the most liberal reading of the plaintiff's
second amended complaint this court cannot construe the plaintiff's claims to
include valid Section 955 claims against Beers and Rushton individually.
13

Judge Saporito also determined that any amendment as it related to
claims against Rushton and Beers would be futile. The court agrees.
21

Judge Saporito also concluded that the plaintiff’s second amended
complaint fulfilled the requirements of the Federal Rules of Civil Procedure,
therein fulfilling the requirements of this court’s October 13, 2015 Order giving
detailed instructions to the plaintiff for amending her complaint. The court
agrees with Judge Saporito’s conclusion. The second amended complaint
remains inartfully drafted, but it is construed liberally to ensure that the plaintiff
does not inadvertently forfeit her rights. See Alston, 363 F.3d at 234; Higgs,
655 F.3d at 339. Further, the above construction of the plaintiff’s pleading
should provide guidance to the parties moving forward. Judge Saporito’s
recommendation is, therefore, fully adopted and the defendants’ motion as it
relates to this issue is denied.

III.

CONCLUSION
After reviewing the plaintiff’s second amended complaint, (Doc. 30), the

defendants motion to dismiss, (Doc. 32), the report and recommendation of
Judge Saporito, (Doc. 37), the plaintiff’s objections, (Doc. 38), and the
defendants brief in response, (Doc. 41), Judge Saporito’s report and
recommendation is ADOPTED IN ITS ENTIRETY. The defendants motion to
dismiss is GRANTED IN PART and DENIED IN PART. The court finds futility
in allowing the plaintiff to amend her claims against defendants Rushton and
Beers in their official capacity. Accordingly, all claims against defendants

22

Rushton and Beers are DISMISSED WITH PREJUDICE and the case is
remanded to Judge Saporito for further pre-trial proceedings. An appropriate
order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: October 17, 2016
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2014 MEMORANDA\14-1779-02.wpd

23