HELVY v. ALLEGHENY COUNTY et al

Filing 12

MEMORANDUM OPINION AND ORDER granting in part and denying in part 8 Defendant's Motion to Dismiss. The motion is DENIED insofar as it seeks to dismiss any claims based on Plaintiffs October 24, 2014, suspension; GRANTED insofar as the March 23 , 2014, reprimand is not individually actionable; and GRANTED insofar as it seeks to dismiss Plaintiffs request for punitive damages. It is FURTHER ORDERED that the Allegheny County Department of Emergency Services is DISMISSED as a Defendant since i t is not a separate legal entitity. Defendant shall file an answer to Plaintiffs amended complaint on or before March 3, 2015. The parties shall confer as necessary and shall file with the Court the Stipulation Selecting ADR Process and the Rule 26(f) Report on or before March 10, 2015. The Initial Case Management Conference is hereby SCHEDULED on March 17, 2015, at 8:30 a.m. in Courtroom 6C. Signed by Judge Terrence F. McVerry on 2/17/2015. (rjw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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RUBY HELVY,
Plaintiff,
v.
ALLEGHENY COUNTY and
ALLEGHENY COUNTY DEPARTMENT
OF EMERGENCY SERVICES,
Defendants.

MEMORANDUM OPINION
Pending before the Court is DEFENDANTS’ MOTION TO DISMISS (ECF No. 8) filed
by Allegheny County and Allegheny County Department of Emergency Services 1 (“Defendant”),
along with a BRIEF IN SUPPORT (ECF No. 11). Ruby Helvy (“Plaintiff”) has filed a BRIEF IN
OPPOSITION TO DEFENDANTS’ MOTION (ECF No. 12). Accordingly, the motion is ripe for
disposition. For the following reasons, the Court will grant the motion in part, and deny it in part.
I.

Background
Plaintiff, an African-American woman, was employed by Defendant as a 9-1-1 dispatcher

from 2005 until 2014, taking 9-1-1 calls and relaying them to emergency workers in the field. On
December 5, 2012, Plaintiff’s supervisors, Rebecca Frazier and Stephanie Ware, suspended
Plaintiff for one day without pay, allegedly because she was not at her desk during a call. Late
the next month, on January 26, 2013, Plaintiff was suspended for three days without pay,
1.
The Allegheny County Department of Emergency Services is a subunit of the County, not
an independent legal entity. Thus, the Department is not subject to suit in its own right, and the
County, itself, is the proper Defendant in this action. See Neil v. Allegheny Cnty., No. CIV.A. 120348, 2012 WL 3779182, at *1 (W.D. Pa. Aug. 31, 2012) (citations omitted). (“In a section 1983
action, police departments and other departments of a municipality are not separate legal entities
from the municipality and cannot, therefore, be sued separately.”). The Department will,
therefore, be dismissed from this action.
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allegedly because she asked officers to repeat themselves too many times during calls.
On February 15, 2013, Plaintiff submitted an intake questionnaire to the Equal
Employment Opportunity Commission (“EEOC”), alleging that she was suspended because of
her race.2 Two days later, Plaintiff was suspended for two days without pay for her “general
attitude, neglect of duty and politeness.” The next month, Plaintiff was suspended from March
11-17, 2013, without pay, for displaying insufficient effort and inattention to detail. On May 16,
2013, Plaintiff filed a formal EEOC charge, which referenced all of the allegedly discriminatory
conduct occurring from December 2012 to May 2013.
Plaintiff was again suspended in November 2013. Around that same time, Defendant
suspended a white, female co-worker; however, unlike Plaintiff, the white, female co-worker was
suspended for a shorter period of time than Plaintiff and was given “split time.” On December 5,
2013, Plaintiff filed a supplement to her EEOC charge, reflecting the new instance of alleged
discrimination.
On March 23, 2014, Ware reprimanded Plaintiff for cancelling a call, allegedly while
others who engaged in similar conduct were not so reprimanded. On April 3, 2014, Plaintiff
again supplemented her EEOC charge to include this allegedly discriminatory act.
Plaintiff was issued a right-to-sue letter on September 8, 2014. On October 24, 2014, she
2.
In her complaint, Plaintiff alleges that she “filed her initial, formal charge with the
[EEOC]” on February 15, 2013, and she refers to Exhibit 1 as the “formal charge.” Am. Compl.
P. 20. Exhibit 1 is not, however, an EEOC charge form; it is an intake questionnaire. These are
distinct forms that “serve different purposes.” Barzanty v. Verizon PA, Inc., 361 F. App'x 411,
415 (3d Cir. 2010). “An Intake Questionnaire facilitates ‘pre-charge filing counseling’ and
allows the Commission to determine whether it has jurisdiction to pursue a charge.” Id. (quoting
Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008)). It “is not shared with the employer
during the pendency of the EEOC investigation.” Id. In contrast, a formal charge delineates the
scope of the EEOC’s investigation and notifies the defendant of the charges filed against it. Id.
(citations omitted). It appears as though Plaintiff’s formal charge was not filed until May 16,
2013. See Ex. 2. Thus, this charge, as supplemented in December 2013 and April 2014, defined
the scope of the EEOC investigation and, in turn, the scope of this lawsuit.
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was suspended without pay indefinitely, pending a termination hearing, allegedly as a result of a
neglect of duty.
Plaintiff filed suit in the Allegheny County Court of Common Pleas on November 19,
2014. Defendant then timely removed the action to this Court. On December 22, 2014,
Defendant filed a motion to dismiss. Plaintiff responded by filing an amended complaint,
alleging claims for disparate treatment, hostile work environment, and retaliation, under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Pennsylvania
Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”). This motion then followed.
II.

Legal Standard
A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of a complaint.

The Court must accept as true all well-pleaded facts and allegations and must draw all reasonable
inferences therefrom in favor of the plaintiff. However, as the Supreme Court made clear in Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007), the “factual allegations must be enough to
raise a right to relief above the speculative level.” Id. The Supreme Court has subsequently
broadened the scope of this requirement, stating that only a complaint that states a plausible
claim for relief survives a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
A district court must conduct a two-part analysis when presented with a motion to
dismiss for failure to state a claim. First, the Court must separate the factual and legal elements
of the claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although the Court
“must accept all of the complaint’s well-pleaded facts as true, [it] may disregard any legal
conclusions.” Id. at 210-211. Second, the Court “must then determine whether the facts alleged
in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’ In other
words, a complaint must do more than allege the plaintiff’s entitlement to relief. A complaint has

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to ‘show’ such an entitlement with its facts.”

Id. at 211 (citing Iqbal, 556 U.S. at 679).

Determining “plausibility” is “‘a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679).
III.

Discussion
Defendant seeks to dismiss three aspects of Plaintiff’s amended complaint. First,

Defendant argues that all claims arising out of Plaintiff’s October 24, 2014, suspension pending
termination should be dismissed because Plaintiff failed to exhaust her administrative remedies
with respect to that action. Second, Defendant argues that Plaintiff’s reprimand on March 23,
2014, does not rise to the level of an “adverse employment action” and consequently all claims
related to that incident should be dismissed. Third, Defendant argues that Plaintiff cannot recover
punitive damages under either Title VII or the PHRA. These issues will be addressed seriatim.
A.

October 24, 2014, Suspension

Defendant first contends that Plaintiff failed to exhaust her administrative remedies as to
her October 24, 2014, suspension pending termination. Plaintiff counters that she was not
required to file another charge with the EEOC for this claim because it was within the scope of
her prior complaints.
A plaintiff must exhaust her administrative remedies before filing a Title VII suit in
federal court. Spence v. Straw, 54 F.3d 196, 200 (3d Cir. 1995). The exhaustion requirement may
not be applicable, however, where a plaintiff has already filed an EEOC charge and the
subsequent acts “are fairly within the scope of the prior EEOC complaint, or the investigation
arising therefrom.” Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984). Accordingly, the
Court must “examine carefully the prior pending EEOC complaint[s] and the unexhausted claim
. . . before determining that [another EEOC] complaint need not have been filed.” Robinson v.

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Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997).
Plaintiff filed her formal charge of discrimination on May 16, 2013. In the charge form,
she specifically referenced the December 2012 and January, February, and March 2013
suspensions and claimed that Defendant’s actions amounted to racial discrimination and
retaliation and also created a hostile work environment. On December 4, 2013, Plaintiff
supplemented her EEOC charge to include the November 2013 suspension, again alleging
discrimination and retaliation. On April 3, 2014, Plaintiff filed an additional supplement, which
described the March 2014 reprimand and, as with the other incidents, alleged that it was
discriminatory and retaliatory.
The Court concludes that Plaintiff’s claim related to her October 24, 2014, suspension is
fairly encompassed within the scope of her prior EEOC charges. Plaintiff alleges that her
suspension and eventual termination “was the product of th[e] same [discriminatory and]
retaliatory intent” that animated Defendant’s earlier actions. See Waiters, 729 F.3d at 238. This
incident was, in essence, a continuation of the prior discrimination and retaliation. Thus, Plaintiff
was not required to file an additional charge with the EEOC as to this incident.
2.

March 23, 2014, Reprimand

Defendant next argues that any claims related to Ware’s reprimand of Plaintiff in March
2014 should be dismissed because Ware’s conduct did not amount to an adverse employment
action. In order for a reprimand to be individually actionable under Title VII, it must have
affected the terms and conditions of the plaintiff’s employment. See Weston v. Pennsylvania, 251
F.3d 420, 430–31 (3d Cir.2001), overruled in part on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, (2006). As the Court of Appeals has explained, “[f]ormal
reprimands that result in a notation in an employee’s personnel file could be sufficiently

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concrete” to amount to an adverse employment action, “but harsh words that lack real
consequences are not.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1298 (3d Cir. 1997),
overruled in part on other grounds by Burlington, 548 U.S. at 53).
The amended complaint contains just one paragraph regarding this incident. Namely,
Plaintiff alleges, “Ware reprimanded [her] for cancelling a call.” Am. Compl. ¶ 33. She says
nothing, however, about whether this reprimand had an effect on her employment status or the
terms and conditions of her employment. She does not even describe what form the reprimand
took. Thus, the Court agrees with Defendant that this incident is not individually actionable, and
Defendant’s motion is granted to the extent Plaintiff seeks to base her disparate treatment claim
on this incident.
Although Plaintiff seems to concede that this incident is not individually actionable, she
suggests that it can still be considered as part of her hostile work environment claim.3 It is true,
as Plaintiff argues, that hostile work environment claims can be “based on the cumulative effect
of individual acts,” which, on their own, may not be actionable under Title VII. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (citing Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993)). The trouble with Plaintiff’s argument, however, is that she cannot
simply “cobbl[e] together a number of distinct, disparate acts” – the same acts that make up her
disparate treatment claim – and label it “a hostile work environment.” Brantley v. Kempthorne,

3.
In her brief, Plaintiff spends almost an entire page discussing the continuing violation
doctrine, but the Court fails to see how that doctrine is implicated in this case. The continuing
violation doctrine allows a plaintiff to base a hostile work environment claim, in part, on nondiscrete acts of discrimination that fall outside the of the limitations period so long “‘as they are
linked in a pattern of actions which continues into the applicable limitations period.’” Mandel v.
M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (quoting O’Connor v. City of
Newark, 440 F.3d 125, 127 (3d Cir. 2006)). But in this case, all of the allegedly discriminatory
acts occurred well within the limitations period, so Plaintiff has no need to attempt to revive
otherwise stale allegations by alleging that they were part of a continuing violation.
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No. CIV.A. 06-1137ESH, 2008 WL 2073913, at *8 (D.D.C. May 13, 2008). So, “[f]or example,
if an employee is discriminatorily denied ten promotions over a period of time, that pattern of
conduct may give rise to ten separate disparate treatment claims under Title VII, but it would not
create a hostile work environment claim . . . .” Id. Something more is required to adequately state
a hostile work environment claim: allegations of a pervasive pattern of behavior that makes
going to work virtually unbearable. Otherwise, “the distinctions between both the elements that
underpin” disparate treatment claims and hostile work environment claims “and the kinds of
harm each cause of action was designed to address” would be significantly blurred. Parker v.
State Dep’t of Pub. Safety, 11 F. Supp. 2d 467, 475 (D. Del. 1998).
Plaintiff ignores this principle. As she acknowledges in her brief in response to
Defendant’s motion, her hostile work environment claim, though separately pled, is premised on
the very same factual allegations underlying her disparate treatment claims. See Pl.’s Br. at 7,
ECF No. 11 (referring to the four suspensions and arguing that “these acts formed the basis of a
hostile environment complaint”). She has not alleged any additional facts. Thus, the Court is
quite skeptical of whether Plaintiff has pleaded enough to proceed to discovery. Fortunately for
Plaintiff, Defendant has not moved to dismiss her hostile work environment claim on this, or any
other, basis, so the Court is constrained to allow this claim to survive – at least at this stage. But
a word of caution is in order: summary judgment will be granted in favor of Defendant on this
claim unless Plaintiff can come forward with evidence of “severe or pervasive conduct” that
altered the terms and conditions of her employment. Mandel, 706 F.3d at 167. She will not be
“permitted to ‘bootstrap’ her alleged discrete acts of discrimination and retaliation into a broader
hostile work environment claim.” Brantley, 2008 WL 2073913, at *8.

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C.

Punitive Damages

Finally, Defendant moves to dismiss Plaintiff’s claim for punitive damages. The Court
agrees that dismissal is warranted. It is clear that “[p]unitive damages are not available under
Title VII” where, as here, “the defendant is a ‘government,’ a ‘government agency,’ or a
‘political subdivision.” Phillips v. Donahoe, No. CIV.A. 12-410, 2013 WL 5963121, at *23 n.37
(W.D. Pa. Nov. 7, 2013) (quoting 42 U.S.C. § 1981a(b)(1)). Likewise, as Defendant correctly
observes, punitive damages are also not available under the PHRA. See Hoy v. Angelone, 554 Pa.
134, 720 A.2d 745, 749 (Pa. 1998)). Accordingly, no matter what Plaintiff uncovers in
discovery, she will not, as a matter of law, be able to recover punitive damages, and this aspect
of Defendant’s motion is granted.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion to dismiss will be granted in part, and

denied in part. An appropriate order follows.
McVerry, S.J.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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) 2:14-cv-01686-TFM
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RUBY HELVY,
Plaintiff,
v.
ALLEGHENY COUNTY and
ALLEGHENY COUNTY DEPARTMENT
OF EMERGENCY SERVICES,
Defendants.
ORDER

AND NOW, this 17th day of February, 2015, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that
DEFENDANTS’ MOTION TO DISMISS (ECF No. 8) is GRANTED IN PART, and DENIED
IN PART. The motion is DENIED insofar as it seeks to dismiss any claims based on Plaintiff’s
October 24, 2014, suspension; GRANTED insofar as the March 23, 2014, reprimand is not
individually actionable; and GRANTED insofar as it seeks to dismiss Plaintiff’s request for
punitive damages.
It is FURTHER ORDERED that the Allegheny County Department of Emergency
Services is DISMISSED as a Defendant, and the caption of this action is amended is hereby
AMENDED as follows:

RUBY HELVY,
Plaintiff,
v.
ALLEGHENY COUNTY,
Defendant.

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Defendant shall file an answer to Plaintiff’s amended complaint on or before March 3,
2015. The parties shall confer as necessary and shall file with the Court the Stipulation Selecting
ADR Process and the Rule 26(f) Report on or before March 10, 2015. The Initial Case
Management Conference is hereby SCHEDULED on March 17, 2015, at 8:30 a.m. in
Courtroom 6C.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge

cc:

Joseph Pometto, Esq.
Email: [e-mail]
Virginia Spencer Scott, Esq.
Email: [e-mail]
(via CM/ECF)