Farr v. Modular Steel Systems et al
ORDER granting 7 Motion to Dismiss. All claims in Plaintiff's Complaint are Dismissed without prejudice and with leave to refile within 21 days of the date of this Order. (See Order for further details.) Signed by Honorable Matthew W. Brann on 4/12/2017. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MODULAR STEEL SYSTEMS
and JIM NOVICK,
April 12, 2017
On February 13, 2017, Plaintiff filed her Complaint. ECF No. 1.
Plaintiff states that she was hired by Defendant Modular Steel
Systems in March 2014 and was purportedly fired before having spent
two years at the company’s plant in Bloomsburg, Columbia County,
Pennsylvania. Id. at ¶¶ 21, 23. In precisely what capacity Plaintiff was
hired is unclear from the Complaint.
Plaintiff alleges that Defendant Jim Novick, Modular Steel’s Vice
President, created a hostile work environment by making sexually-
charged comments and attempting to stare at her breasts and buttocks.
Id. at ¶¶ 25–30.
After Plaintiff complained to a plant manager, she alleges that Mr.
Novick “began to retaliate against [her].” Id. at ¶ 36.
By way of example, Plaintiff writes that Mr. Novick had referred to
her as a “cunt” and a “bitch.” Id. at ¶ 38.
Plaintiff then writes that in February 2016, Mr. Novick “yelled at
[her] and told her she was terminated with no explanation.” Id. at ¶ 52.
Plaintiff also avers that she was “subjected to wage discrimination on
the basis of her gender” because all male employees in the office
received raises, while her pay stayed the same. Id. at ¶¶ 47–48.
Defendants filed a Motion to Dismiss on March 7, 2017, noting that
Plaintiff’s Complaint was written “in the most bare bones of terms.”
ECF No. 7 at 1. I agree.
After Twombly and Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678. “Although the
plausibility standard does not impose a probability requirement, it
does require a pleading to show more than a sheer possibility that a
defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809
F.3d 780, 786 (3d Cir. 2016) (Jordan, J.) (internal quotations and
Plaintiff here has not “allege[d] sufficient facts to raise a reasonable
expectation that discovery will uncover proof of her claims.”
Connelly, 809 F.3d at 789. To the contrary, the averments in
Plaintiff’s Complaint are shadowy at best and pale in comparison to
the facts pled in Connelly. Specifically, nothing in the Complaint
suggests that sex “played either a motivating or determinative factor”
in the contested termination or pay decisions. Id. at 791.
Moreover, “[f]or sexual harassment to be actionable, it must be
sufficiently severe or pervasive “to alter the conditions of [the
victim’s] employment and create an abusive working environment.”
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). “Conduct
that is not severe or pervasive enough to create an objectively hostile
or abusive work environment—an environment that a reasonable
person would find hostile or abusive—is beyond Title VII’s purview.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A “mere
utterance of an . . . epithet which engenders offensive feelings in an
employee would not affect the conditions of employment to
sufficiently significant degree to violate Title VII.” Meritor, 477 U.S.
Plaintiff offers no facts that plausibly suggest she was the victim of
sex discrimination so severe or pervasive as to alter the conditions of
her employment as that standard is applied. See, e.g., Bumbarger v.
New Enter. Stone & Lime Co., 170 F. Supp. 3d 801, 830 (W.D. Pa.
2016) (Gibson, J.) (“[U]se of the word ‘b—h’ on a few occasions and
‘c—t’ on a few occasions, over the time period of 2009 until 2013, is
insufficient to establish that his harassment of Plaintiff was
‘sufficiently severe or pervasive.’”).
Plaintiff further offers no facts that plausibly suggest either sex
discrimination or unlawful retaliation was the cause of her
termination. “Title VII retaliation claims must be proved according to
traditional principles of but-for causation, not the lessened causation
test stated in § 2000e–2(m). This requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged
wrongful action or actions of the employer.” Univ. of Texas Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). See also Connelly, 809
F.3d at 789 (holding that “retaliation claim may survive
[defendant’s] motion to dismiss if she pleads sufficient factual
allegations to raise a reasonable expectation that discovery will reveal
evidence of the following elements: (1) she engaged in conduct
protected by Title VII; (2) the employer took adverse action against
her; and (3) a causal link exists between her protected conduct and
the employer’s adverse action”).
Plaintiff also offers no facts that plausibly suggest she was paid
different wages than members of the opposite sex, solely on the basis
of sex, “for equal work on jobs which required equal skill, effort, and
responsibility, and all of which are performed under similar working
conditions.” Summy–Long v. Pennsylvania State Univ., — F.Supp.3d
— , 2016 WL 7448710, at *31 (M.D. Pa. Dec. 27, 2016) (Brann, J.).
AND NOW, THEREFORE, IT IS HEREBY ORDERED that:
Defendants’ failure to comply with Local Rule 7.5, which requires the
submission of a supporting brief, is EXCUSED, as compliance would
have been futile in this instance. See Prof’l Mgmt. Assocs., Inc.
Employees’ Profit Sharing Plan v. KPMG LLP, 335 F.3d 800, 804
(8th Cir. 2003) (compliance with local rule excused where it “would
be futile anyway”).
Defendants’ Motion to Dismiss, ECF No. 7, is GRANTED.
All claims in Plaintiff’s Complaint are DISMISSED WITHOUT
PREJUDICE and with leave to refile within 21 days of the date of
If Plaintiff cannot allege sufficient facts to state a plausible claim for
relief under prevailing law, counsel for Plaintiff should not refile an
amended complaint this action. See Keister v. PPL Corp., 318 F.R.D.
247, 262 (M.D. Pa. 2015) (Brann, J.) (imposing reasonable attorney’s
fees under Federal Rule of Civil Procedure 11, where “the allegations
in Plaintiff’s Second Amended Complaint were unsupported at the
time that [counsel for Plaintiff] wrote them, and were unlikely to ever
gain factual support during the course of discovery, because they
simply were inaccurate”), aff’d, — Fed. Appx. — , 2017 WL 383366
(3d Cir. 2017) (Fisher, J.).
The Clerk of Court is directed to docket this Order as a “written
opinion,” pursuant to the E-Government Act of 2002.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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