DEETER v. TRINITY FOOD SERVICES GROUP, INC. et al
Filing
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OPINION and ORDER granting in part and denying in part 40 Motion to Dismiss for Failure to State a Claim for the reasons set forth more fully in the Opinion. Signed by Chief Magistrate Judge Maureen P. Kelly on 9/23/15. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TINA DEETER,
Plaintiff,
vs.
TRINITY SERVICES GROUP, INC.
a/so known as TRINITY FOOD
SERVICES; MILLER BROTHERS
STAFFING SOLUTIONS, LLC also
known as MILLER BROTHERS
STAFFING SOLUTIONS,
Defendants.
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Civil Action No. 14-215E
Chief Magistrate Judge Maureen P. Kelly
Re: ECF No. 40
OPINION AND ORDER
KELLY, Chief Magistrate Judge
Plaintiff Tina Deeter (“Plaintiff”) initiated this civil rights action pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), bringing a claim for
intentional sexual harassment discrimination against her employer, Trinity Services Group, Inc.
(“Trinity”), and a claim for retaliation against Miller Brothers Staffing Solutions (“Miller
Brothers”), which is the employment agency that placed her with Trinity.
Presently before the Court is a Motion to Dismiss Second Amended Complaint submitted
on behalf of Miller Brothers. ECF No. 40. For the reasons that follow, the Motion will be
granted in part and denied in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she was placed with Trinity at its Quality Living Center through
Miller Brothers in mid-May of 2013. ECF No. 39, ¶ 14. Plaintiff was assigned to work in the
kitchen at Trinity where she alleges that “Carl,” one of her supervisors, subjected her to
“unwelcome and bothersome abusive conduct directed at her because of her sex . . . that
constituted sexual harassment and created a hostile work environment.” Id. at ¶¶ 14, 15. See id.
at ¶¶ 16-25. Plaintiff contends that she reported the sexual harassment to “Billy,” a female
supervisor at Trinity, on June 12, 2013, and was subsequently contacted by Miller Brothers on
June 14, 2013. Id. at ¶¶ 26, 27. Plaintiff alleges that she met with three individuals at Miller
Brothers at which time she also informed them that she was being sexually harassed by Carl. Id.
at ¶¶ 28-30. According to Plaintiff, she was then told that she was no longer to report to Trinity
and that Miller Brothers would be in touch with her about future job placements. Id. at ¶¶ 31, 32.
Plaintiff contends that because she has not heard from anyone at Miller Brothers since June 14,
2013, she was “discharged by Miller Brothers.” Id. at ¶ 33.
Plaintiff filed a Complaint on August 15, 2014, ECF No. 1, which she amended on that
same date in order to correct the caption. ECF No. 2. In response to a previously filed Motion to
Dismiss filed by Miller Brothers, Plaintiff asked for, and was granted, another opportunity to
amend the Complaint. ECF Nos. 33, 38. On June 15, 2015, Plaintiff filed a Second Amended
Complaint, which remains the operative complaint, bringing a claim for intentional sexual
harassment discrimination pursuant to Title VII against Trinity (Count I), and a Title VII
retaliation claim against Miller Brothers (Count II). On June 6, 2015, Miller Brothers filed a
Motion to Dismiss Second Amended Complaint, to which Plaintiff filed a Brief in Opposition on
July 29, 2015. ECF Nos. 40, 44. As such, Miller Brothers’ Motion to Dismiss is ripe for review.
II.
STANDARD OF REVIEW
In assessing the sufficiency of the complaint pursuant to a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in
the complaint and all reasonable factual inferences must be viewed in the light most favorable to
the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not
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accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set
forth in the complaint. See California Pub. Employees’ Ret. Sys. v. The Chubb Corp., 394 F.3d
126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Id., citing Papasan v. Allain, 478 U.S. 265,
286 (1986). Indeed, the United States Supreme Court has held that a complaint is properly
dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege “enough facts to state a claim
to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the
court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See Phillips v. Cnty. of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation
of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts
suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation
that discovery will reveal evidence of the necessary element[s] of his claim”).
III.
DISCUSSION
As previously discussed, Plaintiff has brought a single claim against Miller Brothers
under the anti-retaliation provision of Title VII, which provides that:
It shall be an unlawful employment practice for an employer to discriminate
against any of his employees or applicants for employment, for an
employment agency, or joint labor-management committee controlling
apprenticeship or other training or retraining, including on-the-job training
programs, to discriminate against any individual, or for a labor organization
to discriminate against any member thereof or applicant for membership,
because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.
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42 U.S.C. § 2000e–3(a). To state a claim for retaliation under Title VII, a plaintiff “must
establish (1) that she engaged in ‘protected activity,’ (2) that she suffered a materially adverse
action, and (3) that there is a causal connection between the adverse action and the protected
activity.” Kendall v. Donahoe, 913 F. Supp. 2d 186, 191 (W.D. Pa. 2012), aff’d sub nom.
Kendall v. Postmaster Gen. of U.S., 543 F. App’x 141 (3d Cir. 2013), quoting Fogleman v.
Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002).
Miller Brothers argues that Plaintiff’s retaliation claim, set forth in Count II, should be
dismissed because Miller Brothers was not Plaintiff’s employer and because Plaintiff has failed
to allege facts to establish that Miller Brothers took an adverse employment action against her.
With respect to Miller Brothers, Plaintiff alleges in the Second Amended Complaint that
she “worked through Miller Brothers, an employment agency;” that on June 14, 2013, she was
contacted by Miller Brothers after she reported Carl’s sexual harassment to a supervisor at
Trinity; that she subsequently met with three individuals from Miller Brothers and informed
them that she was being sexually harassed by Carl; that Plaintiff was then told by Miller Brothers
that she was no longer to report to Trinity and that Miller Brothers would be in touch with her
about future job placements; and that Plaintiff was “discharged by Miller Brothers” as she has
not heard from Miller Brothers since June 14, 2013. ECF No. 39, ¶¶13, 27-29, 31-33. The Court
agrees that these facts are insufficient to show that Miller Brothers was Plaintiff’s employer and
thus cannot be held liable as such under Title VII.
As previously found by this Court, although Miller Brothers may be an employer in that
it is “engaged in an industry affecting commerce” and “has fifteen or more employees for each
working day in each of twenty or more calendar weeks in the current or preceding calendar
year,” 42 U.S.C. § 2000e(b), there is nothing in the Second Amended Complaint to suggest that
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Miller Brothers was Plaintiff’s employer or that she otherwise worked for Miller Brothers.
Although an employment agency can be considered a joint employer under certain
circumstances, those circumstances include the right to control the means and manner of
employment, including the decision to hire and/or fire; assignments and the work rules that
would apply to the employee; compensation, benefits and hours; the day to day supervision,
including imposing discipline; and maintaining employee records. See Abdallah v. Allegheny
Valley Sch., 2011 WL 344079, at *3 (E.D. Pa. Feb. 1, 2011), citing Butterbaugh v. Chertoff, 479
F. Supp. 2d 485, 491 (W.D. Pa. 2007). The Second Amended Complaint contains no facts which
would permit the inference that, once placed at Trinity, Miller Brothers maintained any control
over Plaintiff’s employment there. As such, Miller Brothers cannot be considered a joint
employer. See also Kellam v. Snelling Personnel Services, 866 F. Supp. 812, 815 (D. Del.
1994), aff’d, 65 F.3d 162 3d Cir. 1995) (finding that an employment agency plays no role in the
temporary worker’s job training, direction, supervision or evaluation).
Moreover, under Title VII, an employment agency is separately defined as “any person
regularly undertaking with or without compensation to procure employees for an employer or to
procure for employees opportunities to work for an employer and includes an agent of such a
person.” 42 U.S.C. § 2000e(c). According to Plaintiff’s allegations in the Second Amended
Complaint, Miller Brothers procured employment for Plaintiff with an employer (Trinity). See
ECF No. 2, ¶ 13 (“Plaintiff worked through Miller Brothers, an employment agency”) (emphasis
added). Thus, Miller Brothers falls squarely within the definition of an employment agency. See
also Williams v. Caruso, 966 F. Supp. 287, 296 (D. Del. 1997) (“[i]f the Court were to permit
Williams to sue Western as her “employer,” the prohibitions relating to employment agencies
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would be rendered superfluous”). Therefore, to the extent that Plaintiff seeks to hold Miller
Brothers liable as her employer, Plaintiff’s retaliation claim is properly dismissed.
The anti-retaliation provision of Title VII, however, also makes it unlawful for an
employment agency to retaliate against “any individual” because he or she opposed an unlawful
employment practice. 42 U.S.C. § 2000e-3(a). Plaintiff has alleged in the Second Amended
Complaint that, after she informed Miller Brothers that she was being sexually harassed by Carl
Amodie at Trinity, she was told by Miller Brothers not to report back to Trinity and that Miller
Brothers failed to get in touch with her about future job placements despite their counsel that
they would do so.
These actions appear to be sufficiently adverse to state a claim for retaliation against
Miller Brothers as an employment agency. Indeed, procuring opportunities for employees to
work for an employer is precisely the role of an employment agency, see 42 U.S.C. § 2000e(c),
and thus failing or refusing to refer an individual who has made complaints of sexual harassment
necessarily constitutes retaliatory conduct as contemplated by Title VII’s anti-retaliation
provision with respect to employment agencies.
Miller Brother’s argument that removing Plaintiff from employment at Trinity and failing
to refer her to other jobs do not constitute adverse employment actions is unpersuasive. With
one exception, all of the cases relied upon by Miller Brothers to support its position are cases in
which the plaintiffs had brought claims pursuant to the intentional discrimination provisions of
Title VII and not the anti-retaliation provision as Plaintiff has in this case. See E.E.O.C. v. Kelly
Services, Inc., 598 F.3d 1022 (8th Cir. 2010); Shah v. Adecco, 682 F. Supp. 2d 435 (D. Del.
2010); Watson v. Adecco Employment Services, Inc., 252 F. Supp. 2d 1347 (M.D. Fla. 2003).
More importantly, however, all of these cases were decided at the summary judgment phase of
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the litigation and not at the motion to dismiss stage. The Courts’ findings therefore were based
on the evidence -- or the lack thereof -- adduced by the plaintiffs during discovery having
necessarily stated a claim for retaliation in the first instance. See E.E.O.C. v. Kelly Services,
Inc., 598 F.3d at 1030 (finding that, on the facts before it, the Court need not decide the question
of whether an employment agency’s failure to refer a plaintiff for employment qualifies as an
adverse employment action as the EEOC failed to point to any evidence that there was a position
available to which the employee could have been referred); Shah v. Adecco, 682 F. Supp. 2d at
440 (finding not only that the defendant, a temporary staffing agency, was the plaintiff’s
employer, and remained so after the plaintiff was removed from a job assignment, but that the
evidence showed that the defendant’s premature termination of the plaintiff’s assignment was
done at the behest of the defendant’s client with whom the plaintiff was placed, and not the
defendant); Watson v. Adecco Employment Services, Inc., 252 F. Supp. 2d. at 1357 (declining to
find that the defendant employment agency took an adverse action against the plaintiffs where
the evidence showed that the defendant, which the Court found was not the plaintiffs’ employer,
simply conveyed to the plaintiffs the wishes of the its client that the plaintiffs were not to report
anymore). Consequently, none of these cases preclude a finding that Plaintiff in this case has
alleged sufficient facts in the Second Amended Complaint from which it could be inferred that
Miller Brothers took an adverse employment action against her.1
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Although the Court in Watson went on to state that “if Adecco knew its client . . . had discriminated against its
temporary employees, then it would not violate Title VII by removing, on its own accord, the employees from that
discriminatory assignment. In fact, such action would be an appropriate accommodation to correct the client's
allegedly discriminatory conduct[,]”it does not alter this Court’s findings here. Watson, 252 F.Supp.2d at 1357
(footnotes omitted). Not only does it bear repeating that the claim against the employment agency in Watson was
one of intentional discrimination and not a retaliation claim, but the Court’s statements in this regard are largely
dicta. Moreover, unlike the Court in Watson, this Court does not have the benefit of discovered evidence from
which it can be determined precisely what Miller Brothers knew or what motivated its actions. Whether or not
Plaintiff is able to provide the necessary evidence when the time comes remains to be seen. At this stage of the
litigation, however, Plaintiff’s allegations in the Second Amended Complaint are sufficient to state a claim for
retaliation under Title VII. See Swope v. City of Pittsburgh, ___ F. Supp. 3d ___, 2015 WL 500922, at *2 (W.D.
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The only case cited by Miller Brothers that was brought under Title VII’s anti-retaliation
provision and decided at the motion to dismiss stage of the proceedings is Mullis v. Mechanics &
Farmers Bank, 994 F. Supp. 680 (M.D.N.C. 1997) (“Mullis”). In Mullis, the plaintiff brought,
inter alia, a retaliation claim against a temporary services agency alleging, much like Plaintiff
has in this case, that she had been removed from her temporary assignment at a bank after she
complained of sexual harassment. Although the Court granted the defendant’s motion to
dismiss, finding that the plaintiff had failed to allege sufficient facts to suggest that the defendant
took an adverse employment action against the plaintiff, it did not find, as Miller Brothers
suggests, that removing an employee from an assignment could never rise to the level of an
adverse employment action. Moreover, the Court’s conclusion was based on its earlier finding
that the defendant, unlike Miller Brothers, was the plaintiff’s employer and that adverse
employment actions taken by employers “have ‘consistently focused on the question of whether
there has been discrimination in what could be characterized as ultimate employment decisions
such as hiring, granting leave, discharging, promoting and compensation.’” Id. at 686, quoting
Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). Because Mullis had not alleged that the
defendant “discharged her, refused to assign her to other positions, only offered her assignments
inferior to her position at Mechanics,” the Court found that she had failed to plead facts showing
that her employer had taken an adverse employment action against her. Id. at 686-87.
Here, however, Miller Brothers was not Plaintiff’s employer. Plaintiff’s failure to allege
that Miller Brothers took an adverse action that is normally attributable to employers, therefore,
is of no moment. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 63-64
Pa. Feb. 5, 2015), citing Oatway v. American International Group, Inc., 325 F.3d 184, 187 (3d Cir. 2003) (in
deciding a motion to dismiss, “[t]he question is not whether the plaintiff will prevail in the end but, rather, is
whether the plaintiff is entitled to offer evidence in support of his or her claims”).
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(2006) (finding that in order to meet the objective of Title VII’s anti-retaliation provision, which
seeks to prevent harm to individuals based on their conduct, discriminatory actions on the part of
an employer are not limited to actions that affect the terms and conditions of employment).
Rather, Plaintiff has alleged that Miller Brothers, as an employment agency -- which, by
definition, “procure[s] for employees opportunities to work for an employer” -- removed her
from employment after she complained of harassment and subsequently failed to contact her in
order to procure other employment. See 42 U.S.C. § 2000e(c). Thus, the Court finds not only
that Miller Brother’s reliance on Mullis is misplaced, but that Plaintiff has alleged sufficient
facts, at this early stage of the litigation, to state a claim for Title VII retaliation against Miller
Brothers as an employment agency.
IV.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss Second Amended Complaint, ECF No.
40, is properly granted in part and denied in part.
Accordingly, the following Order is entered:
ORDER
AND NOW, this 23rd day of September, 2015, upon consideration of the Motion to
Dismiss Second Amended Complaint submitted on behalf of Defendant Miller Brothers, and
Plaintiff’s Brief in Opposition to Miller Brother’s Motion to Dismiss Second Amended
Complaint, IT IS HEREBY ORDERED that Defendant Miller Brother’s Motion to Dismiss
Second Amended Complaint, ECF No. 40, is GRANTED in part and DENIED in part. The
Motion is granted insofar as Plaintiff seeks to hold Miller Brothers liable under Title VII’s
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retaliation provision as her employer and denied with respect to Plaintiff’s retaliation claim
brought against Miller Brothers as an employment agency.
BY THE COURT:
/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
cc:
All counsel of record by Notice of Electronic Filing
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