THOMPSON v. ALLEGHENY COUNTY ET AL

Filing 15

MEMORANDUM OPINION granting 8 Motion to Dismiss for Failure to State a Claim. Plaintiff has failed to provide the Court with sufficient factual allegations to state a claim on which relief may be granted. Defendants' Motion to Dismiss is granted without prejudice. Signed by Judge Maurice B. Cohill on 4/6/2015. (cag) Modified on 4/6/2015. (cag)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAPREE THOMPSON,
Plaintiff,

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)
)
)
)

v.

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Civ. No. 1:14-cv-1684

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ALLEGHENY COUNTY, and
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ALLEGHENY COUNTY DEPARTMENT OF, )
EMERGENCY SERVICES,
)

Judge Maurice B. Cohill

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Defendants.

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OPINION

Pending before the Court is Allegheny County's and Allegheny County Department of
Emergency Services' (hereinafter "Defendants") Motion to Dismiss the Amended Complaint
[ECF No.8] pursuant to Rule 12(b)(6) ofthe Federal Rules of Civil Procedure. In its Motion to
Dismiss, the Defendants claim that Plaintiffs Amended Complaint [ECF No.7] should be
dismissed because the claims in the Complaint are time-barred, Plaintiff failed to state a claim on
which relief can be granted, and Plaintiffs claims for punitive damages are barred.
Plaintiff, Dapree Thompson (hereinafter "Plaintiff'), is an adult African-American who
began working for the Allegheny County Department of Emergency Services("ACDES") in
2003 and continues to be employed by ACDES [ECF No.7

at~

8, 9]. Plaintiff works as a

dispatcher who receives 9-1-1 calls and then relays them to emergency services in the field [ECF
No.7

at~

8, 9]. Plaintiff, in her Amended Complaint, alleged various discriminatory treatments

which she endured and continues to endure in her workplace. Plaintiff avers the Motion to
Dismiss should be denied because her claims are not time-barred. She states the employer's

illegal behaviors are continuous and ongoing. Furthermore, Plaintiff asserts that the claims for
Discrimination, Hostile Work Environment, and Retaliation are plausible, legitimate claims.
For the reasons set forth below, Defendants' Motion to Dismiss will be granted.

I. Standard of Review.
In ruling on a Rule 12(b)( 6) Motion for Failure to State a Claim upon which Relief can be
Granted, a court must "'accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief."' Phillips v. County of Allegheny, 515 F .3d
224,233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.
2002)); (see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563, n.8 (2007)). A valid
complaint requires only "a short and plain statement of the claim showing that the pleader is
entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8 "demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S.662, 678 (2009)
(citing Twombly, 550 U.S. at 555).
"To 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." Id. at 678 (citing Twombly, 550 U.S. at 556). "Factual allegations
[of a complaint] must be enough to raise a right to relief above the speculative level." Twombly,
550 U.S. at 555. "This [standard] 'does not impose a probability requirement at the pleading
stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery
will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550

U.S. at 556). Thus, "a plaintiffs obligation to provide the 'grounds' of his 'entitle[ment] to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted).
The Supreme Court in Iqbal explained that although a court must accept as true all of the
factual allegations contained in a complaint, that requirement does not apply to legal conclusions;
therefore, pleadings must include factual allegations to support the legal claims asserted. See
556 U.S. at 678. "Threadbare recitals ofthe elements of a cause of action, supported by mere
conclusory statements do not suffice." Id. (citing Twombly, 550 U.S. at 555); see also Phillips,
515 F.3d at 232 ("We caution that without some factual allegation in the complaint, a claimant
cannot satisfY the requirement that he or she provide not only 'fair notice,' but also the 'grounds'
on which the claim rests.") (citing Twombly, 550 U.S. at 555 n. 3 (2007)). Accordingly, to
survive a motion to dismiss, a plaintiff must plead "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.
Finally, if the court decides to grant a motion to dismiss for failure to state a claim upon
which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the court must next decide
whether leave to amend the complaint must be granted. As explained in Phillips, "We have
instructed that if a complaint is vulnerable to 12(b)( 6) dismissal, a district court must permit a
curative amendment, unless an amendment would be inequitable or futile." 515 F.3d 236 (citing
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002)).
II. Relevant Facts.

Plaintiff provided the following facts in her Amended Complaint [ECF No.7]: In 2011

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Plaintiff was promoted to the position oflead trainer [ECF No. 7 at~ 10]. However, despite
requesting to have trainees, Plaintiff has never been given a single trainee while the other NonAfrican-American trainers have been given several trainees [ECF No. 7 at~ 11 ].
In November of2011, while Plaintiff was on the phone with an emergency unit that was
in the field, someone from that unit called her a "nigger." Plaintiff complained to ACDES about
being called a "nigger." Although management said they would investigate the matter, to date no
investigation was ever conducted and no culprit identified [ECF No.7

at~

13].

From 2011 onward, Plaintiff is frequently made to work mandatory overtime, while NonAfrican-American workers would often be granted exemptions from working mandatory
overtime [ECF No.7

at~

14].

In November 2012 Plaintiff argued with a white female co-worker. Plaintiff and the coworker walked away from the argument peacefully. Plaintiff was suspended from work for 5
days due to the incident but the white co-worker was not suspended [ECF No.7

at~

15].

In October of 2013 a manager reprimanded Plaintiff for speaking too fast while taking
calls. Plaintiff worked in the same position for 10 years and was never before told that she spoke
too fast [ECF No.7

at~

16].

From 2009 to present, Plaintiff and other African-American co-workers were specifically
assigned to receive calls from the inner city because ACDES believes African-American workers
are better able to communicate with African-American callers from the inner city. ACDES said
Plaintiff can speak "ghetto" like the inner-city callers [ECF No. 7 at~ 17 -19].
On January 25, 2014 Plaintiff filed a formal charge with the Equal Employment
Opportunity Commission ("EEOC") and on September 8, 2014 Plaintiff was issued a right to sue

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letter by the Department of Justice ("DOJ") [ECF No.7

at~~

20, 21]. On January 20, 2015

Plaintiff filed the 6-count Amended Complaint [ECF No. 7]. In her Amended Complaint she
alleges Count I- Racial Discrimination in violation of the Pennsylvania Human Relations Act
("PHRA"), 43 P.S. § 955; Count II Racial Discrimination in violation of Title VII ofthe Civil
Rights Act of 1964; Count III- Hostile Work Environment based on racial discrimination under
PHRA; Count IV - Hostile Work Environment based on racial discrimination under Title VII of
the Civil Rights Act of 1964; Count V- Retaliation in violation ofPHRA; and Count VIRetaliation in violation of Title VII of the Civil Rights Act of 1964. Plaintiff requests the Court
to enter judgment in her favor for loss of income, back wages, front wages, emotional damages,
Plaintiffs legal fees, additional punitive damages, and pre-judgment interest, and court costs
[ECF No. 7 at 7-8].
In their Motion to Dismiss, Defendants assert that Plaintiffs claims are time barred
because there is a statutory deadline of 180-days in the case of PHRA, and 300-days in the case
of Title VII from the time of incident to the time of filing a charge with the EEOC. Based on the
January 25, 2014 filing date with EEOC, Plaintiffs Title VII claims needed to have occurred
after March 31, 2013 and the PHRA claims needed to have occurred after July 29, 2013.
Defendants state the Plaintiff only provided three specific instances of discrimination which were
the racial slur by responders (November 2011 ), the suspension for the argument with a co-worker
(November 2012), and the reprimand for speaking too fast (October 2013) [ECF No.9 at 2]. All
three instances occurred before the timeframe for filing and, therefore, are time-barred. In
addition, Defendants state no retaliatory conduct occurred in the time frame and Plaintiffhas not
provided any specific time-frame for the other alleged discriminatory conduct [ECF No. 9 at 4-

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5].
Defendant also asserts that Plaintiff's claims regarding Reprimand and Unfavorable Work
Assignment do not rise to the level of adverse employment action [ECF No. 9 at 5] and therefore,
fail to state a claim on which relief can be granted. Lastly, Defendants state that punitive
damages are only awarded in the case of malice which is not present in this case [ECF No.9 at
7].
Plaintiff, in her Response in Opposition to Defendant's Motion to Dismiss [ECF No. 11],
concedes that the Motion to Dismiss should be granted as to punitive damages, and the exclusion
of Plaintiff's suspension and reprimand. However, she claims all other claims stand as they are
continuous and ongoing and therefore are not time-barred. Defendants assert that Plaintiff's
claim of a "continuous violation" cannot apply to claims of Discrimination and Retaliation.
Defendants provide that only a claim of Hostile Work Environment can be asserted as a
"continuous violation" and it may toll the time-period for filing an administrative claim [ECF
No. 9 at 6]. However, Defendants state that Plaintiff's claim still cannot stand because she has
failed to aver that any one action regarding the assignment of training, mandatory overtime, or
receiving calls from the inner-city of Pittsburgh took place within the statutory filing periods
[ECF No. 9 at 7]. In our Opinion we will only address the continuous and ongoing factual claims
which remain; those claims are the assignment of trainees, mandatory overtime, assignment of
calls from the inner-city of Pittsburgh, and the lack of investigation into the racial slur.

III. Legal Analysis.
Under Title VII, "it shall be an unlawful employment practice for an employer to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual

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with respect to his 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)(l);
Mandel v. M &

Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013). A party seeking relief

from discrimination under the PHRA is required by 43 P.S. § 951 et. seq. to exhaust her
administrative remedies by filing a timely charge with EEOC. See Churchill v. Star Enterprises,
183 F .3d 184, 190 (3d. Cir. 1999). In a "deferral" state, such as Pennsylvania, plaintiffs are
given 300 days to file a Title VII charge with the EEOC from the date of incident. This is an
expanded time period from the typical 180-day time frame due to the fact that the Plaintiff is
required to exhaust her administrative remedies.

(e) Time for filing charges; time for service of notice of charge on respondent; filing
of charge by Commission with State or local agency; seniority system
(1) A charge under this section shall be filed within one hundred and eighty days after
the alleged unlawful employment practice occurred and notice of the charge
(including the date, place and circumstances of the alleged unlawful employment
practice) shall be served upon the person against whom such charge is made within
ten days thereafter, except that in a case of an unlawful employment practice with
respect to which the person aggrieved has initially instituted proceedings with a State
or local agency with authority to grant or seek relief from such practice or to institute
criminal proceedings with respect thereto upon receiving notice thereof, such charge
shall be filed by or on behalf ofthe person aggrieved within three hundred days after
the alleged unlawful employment practice ocCUlTed, or within thirty days after
receiving notice that the State or local agency has tenninated the proceedings under
the State or local law, whichever is earlier, and a copy of such charge shall be filed by
the Commission with the State or local agency. 42 U.S.C. § 2000e-5(e)(l)
The extension of time in a deferral state only applies to the Title VII claim and not the PHRA
claim, which still requires the 180-day time frame. In a deferral state such as Pennsylvania,
plaintiffs must submit their discrimination charge to the EEOC within 300 days of the allegedly
discriminatory employment action. See Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d

7

Cir. 2000). "The extended limitations period applies only to the federal discrimination claims,
however." Burgess-Walls v. Brown, No. CIV.A. 11-275,2011 WL 3702458, at *4 (E.D. Pa.
Aug. 22, 2011 ). "[O]nce the plaintiffs cause of action has accrued, that is, once the plaintiff has
discovered the injury, the statutory limitations period begins to run and the plaintiff is afforded
the full limitations period, starting from the point of claim accrual, in which to file his or her
claim of discrimination." Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452

(7th

Cir. 1991 );

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir. 1994).

In the case at hand, Plaintiffhas asserted claims of Discrimination, Retaliation, and
Hostile Work Environment based on her treatment regarding the assignment of trainees,
mandatory overtime, assignment of calls from the inner-city of Pittsburgh, and the lack of
investigation into a racial slur. Claims of discrimination and retaliation are discrete acts that
cannot stand if they do not occur within the statutory time-frame prescribed. "[D]iscrete
discriminatory acts are not actionable if time barred, even when they are related to acts alleged in
timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). A
discrete act in itself constitutes a separate actionable unlawful employment practice. See id. at
114. Discrete acts include, for example, "termination, failure to promote, denial oftransfer, or
refusal to hire." Id.

There are some instances where equitable tolling may apply. Equitable tolling functions
to stop the statute of limitations from running where the claim's accrual date has already passed.
See Cada, 920 F.2d at 450. However, there are few exceptions under this rule. Under the
principals of equitable tolling, a claim filed beyond the 180-day time limit may be permitted

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where the defendant actively misleads the plaintiff regarding the cause of action; where
extraordinary circumstances prevent the plaintiff from asserting his rights; and where a plaintiff
has asserted his rights in a timely fashion, but in the wrong forum. See Oshiver v. Levin,
Fishbein, Sedran & Berman 38 F.3d 1380, 1387 (3rd Cir.1994). The exceptions to allow tolling
do not apply in Plaintiffs case. Furthermore, Plaintiff has not provided any specific dates for the
acts alleged within the prescribed statutory time period from which to calculate the timeliness of
her filing. Therefore, we are in agreement with Defendants that Plaintiffs claims of
Discrimination and Retaliation cannot stand absent an allegation of Discrimination or Retaliation
within the prescribed time. We will dismiss these claims without prejudice.

On the other hand, the claim of Hostile Work Environment, by virtue of its definition, is
different from a Discrimination or Retaliation claim in that to assert the claim of Hostile Work
Environment the alleged acts must be ongoing as opposed to a discrete incident. Title VII
prohibits sexual harassment that is "sufficiently severe or pervasive to alter the conditions of [the
plaintiffs] employment and create an abusive working environment." Meritor Sav. Bank, FSB v.
Vinson 477 U.S. 57, 67 (1986). "To succeed on a hostile work environment claim, the plaintiff
must establish that 1) the employee suffered intentional discrimination because ofhis/her [race],
2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the
plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like
circumstances, and 5) the existence of respondeat superior liability." Mandel v. M & Q
Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). Furthermore, to determine whether an
environment is hostile, a court must consider the totality of the circumstances, including 'the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
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humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance.'" See Harris v. Forklift Sys., Inc .. 510 U.S. 17, 23 (1993).

That having been said, under the continuing violation doctrine, discriminatory acts that
are not individually actionable may be aggregated to make out a hostile work environment claim;
such acts 'can occur at any time so long as they are linked in a pattern of actions which continues
into the applicable limitations period. See O'Connor v. City ofNewark, 440 F.3d 125, 127 (3d
Cir.2006) (citing National Railroad Passenger Corp. v. Morgan 536 U.S. 101, 105 (explaining
court may consider "entire scope of a hostile work environment claim ... so long as any act
contributing to that hostile environment takes place within the statutory time period")). A hostile
work environment claim is composed of a series of separate acts that collectively constitute one
unlawful employment practice and cannot be said to occur on any particular day. See Morgan,
536 U.S. at 115-17. To allege a continuing violation, the plaintiff must show that all acts which
constitute the claim are part of the same unlawful employment practice and that at least one act
falls within the applicable limitations period. See Morgan, 536 U.S. at 122.

Analysis

To reiterate what was stated above, on a Rule 12(b)(6) motion for failure to state a claim
upon which relief can be granted a court must "accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of
Allegheny, 515 F.3d 224,233 (3d Cir. 2008). A court must accept as true all ofthe factual
allegations contained in a complaint, however, that requirement does not apply to legal
10

conclusions; therefore, pleadings must include factual allegations to support the legal claims
asserted. Based on the law and arguments provided by the Parties, we find that Plaintiff has
failed to state a claim upon which relief can be granted. The Defendants' Motion to Dismiss will
be granted without prejudice.
The crux of the argument in this case is whether Plaintiffs claims may withstand
Defendant's Motion to Dismiss based on whether the alleged occurrences of Discrimination,
Retaliation, and Hostile Work Environment took place within a prescribed statutory timeframe.
Plaintiff asserts that the ongoing discriminatory treatment of her in the workplace allows her
claims to stand. Defendants state that the law does not provide for the tolling of time on the
Discrimination and Retaliation claims and that Plaintiff has not provided a date for the Hostile
Work Environment claim from which to begin the tolling, therefore, none of her claims can
stand.
We find that the claims of Discrimination and Retaliation require a discrete date of
occurrence that was alleged to occur during the statutory time-frame allowable before filing with
the EEOC. In this case, Plaintiff would need to allege an illegal occurrence after March 31, 2013
for a Title VII claim and after July 29, 2013 for a PHRA claim. To date Plaintiff has not
provided a discrete date for any alleged occurrence. With regard to the Hostile Work
Environment, while we recognize the violations claimed by Plaintiff are alleged to be ongoing,
we remain steadfast in our requirement that Plaintiff must assert in her Complaint that at least
part of the violation must have occurred in the statutory time-frame. In other words, Plaintiff
must assert that during the statutory time-frame she requested to be assigned a trainee and was
denied while non-African-American employees at her level were assigned trainees; and/or that
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she was forced to work mandatory overtime while other non-African-American employees were
not; and/or that she was assigned calls from the inner-city of Pittsburgh while other non-AfricanAmerican employees were not; and/or that she continued to press for an investigation into the
racial slur and was denied. In addition, to withstand a Motion to Dismiss or a Motion for
Summary Judgment challenge, Plaintiff must provide factual support for her claim of Hostile
Work Environment that her alleged treatment by her employer caused her to suffer intentional
discrimination because of her race; the discrimination was severe or pervasive; the discrimination
detrimentally affected her; the discrimination would detrimentally affect a reasonable person in
like circumstances; and the existence of respondeat superior liability. Plaintiff has not satisfied
these requirements in her Amended Complaint. We will, therefore, grant the motion to dismiss
for all Counts in the Amended Complaint.

IV. Conclusion.
Plaintiff has not provided the Court with facts that under the laws allow this Court to
consider the allegations under the law. Because Plaintiff has failed to provide sufficient factual
allegations to state a claim on which relief may be granted, Defendant's Motion to Dismiss will
be granted, without prejudice.
An appropriate Order follows.

1«tM£~~

April ~' 2015

t.aY.J.V·

Maurice B. Cohill, Jr.
Senior District Court Judge

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