RODRIGUEZ v. ALLEGHENY COUNTY et al

Filing 14

MEMORANDUM OPINION AND ORDER granting in part and denying in part 9 Motion to Dismiss for Failure to State a Claim. The motion is denied as to Counts 1 and 2; and granted as to Counts 3-8, the claim for punitive damages, and the removal of Allegheny County Department of Emergency Services as a party, as explained therein. Defendant shall file an Answer as to Counts 1 and 2 by April 20, 2015. Signed by Judge Terrence F. McVerry on 4/2/15. (mh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KELLI RODRIGUEZ,
Plaintiff,
v

ALLEGHENY COUNTY and ALLEGHENY
COUNTY DEPARTMENT OF EMERGENCY
SERVICES,
Defendants.

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MEMORANDUM OPINION AND ORDER OF COURT
Now pending before the Court is DEFENDANT’S MOTION TO DISMISS SECOND
AMENDED COMPLAINT (ECF No. 9), filed by Defendants (“Allegheny County”) with brief
in support. Plaintiff Kelli Rodriguez (“Rodriguez”) filed a response and brief in opposition to
the motion (ECF Nos. 12, 13). The motion is ripe for disposition.

Factual and Procedural Background
Rodriguez was hired as a dispatcher at the Allegheny County 9-1-1 call center on
September 3, 2013. Her employment was terminated on December 18, 2013. Rodriguez asserts
claims of employment discrimination under Title VII and the Pennsylvania Human Relations Act
(“PHRA”) for a hostile work environment; gender and race discrimination; and retaliation.
Rodriguez filed her original Complaint in state court and Defendants timely removed the
case to this Court. Defendants filed a motion to dismiss the original complaint, with a brief in
support. Instead of responding to the motion, on January 10, 2015 Rodriguez filed an Amended
Complaint. Accordingly, the Court denied Defendants’ motion to dismiss the original Complaint
as moot. Defendants renewed their challenges to the legal merit of Rodriguez’s claims by filing
a motion to dismiss the Amended Complaint. The Court again issued an Order for Plaintiff to

respond to the motion. Again, instead of responding to the motion, on February 9, 2015
Rodriguez filed a Second Amended Complaint. Defendants then filed the instant motion to
dismiss the Second Amended Complaint. Rodriguez was ordered to respond to the instant
motion by March 16, 2015. She did so. However, as part of her response she seeks leave to file
yet another Complaint if Defendant’s motion is granted in full – which would be her fourth
Complaint in this case.
Pursuant to Fed. R. Civ. P. 15, a plaintiff is permitted to amend a complaint “as a matter
of course” just once. In this case, Plaintiff has already used her amendment “as a matter of
course.” By rule, a plaintiff is prohibited from evading a defendant’s arguments for dismissal by
submitting serial amended Complaints. Instead, she may amend her pleading more than once
“only with the opposing party’s consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).
The Court recognizes that it should freely allow Plaintiffs leave to amend when justice so
requires. However, Rodriguez has already had three “bites at the apple” in this case, as she has
repeatedly amended her complaint in response to Defendants’ prior motions to dismiss.
Rodriguez has failed to satisfy Rule 15(a)(2) and she has failed to articulate any reason why the
Court should countenance a fourth bite at the apple. Such repetitive amendments constitute
undue prejudice to Defendants and are not consistent with the just, speedy and inexpensive
determination of this action. See Fed. R. Civ. P. 1.
The Court denies leave to amend and the proposed Third Amended Complaint is hereby
stricken.1 The Second Amended Complaint shall constitute the operative pleading. No further
amendments will be permitted except upon good cause shown.

The Court notes that the proposed Third Amended Complaint asserts the exact same causes of
action as the Second Amended Complaint. Although the factual allegations are somewhat more
detailed, Plaintiff has failed to demonstrate that these facts were previously unavailable such that
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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
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).

Legal Analysis
Defendants contend that this case should be dismissed in its entirety. In her response,
Rodriguez concedes that “Allegheny County Department of Emergency Services” is not a proper
they could not have been included in the earlier pleadings. In any event, the additional facts
would not affect the Court’s legal analysis.
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Defendant and should be removed from the case. Rodriguez further concedes that she is not
entitled to recover punitive damages. However, Rodriguez maintains that each of her claims
against Allegheny County is valid.
As an initial matter, the same legal standards govern claims under Title VII and the
PHRA, such that they will be addressed together. As to the hostile work environment claims
(Counts 1 and 2), Allegheny County argues that the allegations do not amount to “severe and
pervasive” misconduct. As to her claims of discrimination (Counts 3-6), Allegheny County
contends that Rodriguez has failed to plead any facts to show that she was treated differently (or
terminated) because of her gender and/or her race. As to the retaliation claims (Counts 7 and 8),
Allegheny County argues that Rodriguez has failed to plead any causal connection between the
alleged protected activity and the adverse employment action. The Court turns to these issues
seriatim.

1. Hostile Work Environment Claims
A hostile work environment can be proven by the totality of the circumstances.
Rodriguez was employed at the 9-1-1 center for approximately three months. In the Second
Amended Complaint, Rodriguez pleads numerous incidents of unwelcome conduct that were at
least somewhat related to her gender and/or race. To wit: (1) Legin, her immediate training
supervisor, stated in her presence that she was “a spick … or maybe Mexican, who gives a fuck
it’s the same thing”; (2) Janssen, her supervisor, refused to allow her to wear a hat at work
because that was a “black thing”; (3) Legin told her not to cut her hair short because “long hair is
hot as fuck” and said that if he was not married, he would tell her how he truly felt about her; and
(4) Legin asked her if she “liked to fuck niggers.” In addition, Legin allegedly engaged in other

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hostile conduct which was less directly tied to Rodriguez’s gender or race, including: on
multiple occasions Legin screamed in her face and told her she was stupid while emergency
callers were on the line; Legin pointed out her mistakes to co-workers; Legin yelled at her such
that she would cry; and Legin stated “I want to punch you right in your fucking face.”
Rodriguez avers that Legin’s conduct made her extremely nervous and uncomfortable.
Rodriguez sent an email to Janssen in which she asked to be transferred away from
Legin. Janssen held a meeting, but did not transfer her. Eventually, a co-worker reported
Legin’s harassment to higher authorities and Rodriguez was assigned to a different training
supervisor, Andrea Carroll. Rodriguez pleads that Carroll was complimentary of her
performance, but that Janssen became harshly critical of her work after she was re-assigned.
The elements of a hostile work environment claim are: (1) the employee suffered
intentional discrimination because of her sex (or race), (2) the discrimination was pervasive and
regular, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would
detrimentally affect a reasonable person of the same sex or race in that position, and (5) the
existence of respondeat superior liability. See Weston v. Pennsylvania, 251 F.3d 420, 426 (3d
Cir. 2001). The Court concludes that the Second Amended Complaint sets forth a plausible
hostile work environment claim. Although the total number of alleged incidents may be limited,
all of the incidents occurred within a very compressed three-month time frame. Taking the
allegations as true, the harassment was sufficiently severe that a co-worker felt compelled to
report the conduct to higher-ups. Legin’s behavior resulted in Rodriguez being reassigned to a
different trainer. In sum, viewed in the light most favorable to Plaintiff, a factfinder could
conclude that the alleged harassment from her direct training supervisor detrimentally affected
her working conditions and created a hostile work environment.

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The motion to dismiss will be DENIED as to Counts 1 and 2.

2. Gender/Race Discrimination Claims
To establish a claim for discrimination on the basis of her gender and/or her race,
Rodriguez must plead a prima facie case that she is: (1) a member of a protected class(es); (2)
that she was qualified to perform her job; (3) that she suffered an adverse employment action;
and (4) that discrimination based on her gender and/or race can be inferred from the
circumstances. Sarullo v. United States Postal Service, 352 F.3d 789, 797 (3d Cir. 2003).
Allegheny County argues that Rodriguez has failed to plead any facts to support an
inference that she was terminated because of her gender and/or her race. In response, Rodriguez
essentially reiterates the facts which underlie her hostile work environment theory.
Disparate treatment claims are analytically distinct from hostile work environment claims
and address different types of harms. Hostile work environment claims target harassment. As
the Supreme Court explained in Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-67 (1986),
“hostile work environment claims provide a means of redress under Title VII for discrimination
that does not take the more traditional form of a tangible or economic loss but rather for
discrimination that contaminates the psychological aspects of the workplace to the degree that
the conditions of the workplace are altered.” Parker v. State of Del., Dep't of Pub. Safety, 11 F.
Supp. 2d 467, 475 (D. Del. 1998) (warning of the “dangers” of blurring the distinctions between
these theories).
The Court concludes that Rodriguez has failed to plead a cognizable disparate treatment
claim. Notably, the alleged primary harasser (Legin) was not involved in the decision to
terminate her employment. The Second Amended Complaint avers that Rodriguez was

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terminated on December 18, 2013 by Carol Janssen and Rebecca Frazier, the Chief of
Administration.2 Other than one off-hand comment by Janssen about Rodriguez wearing a hat,
there are no facts pled regarding any racial or gender bias by Janssen or Frazier. Nor are there
any facts regarding disparate treatment of a similarly-situated comparator.
Rodriguez states that she was never given a reason as to why she was terminated.
However, the Second Amended Complaint avers that she was terminated shortly after an incident
in which Janssen publicly criticized the way that Rodriguez handled a 9-1-1 call. See Second
Amended Complaint ¶¶ 28-29. There are simply no facts to support an inference that Janssen’s
criticisms or the decision to terminate her employment were related in any way to Rodriguez’s
gender and/or race.
The Second Amended Complaint (Plaintiff’s third attempt to plead plausible claims)
merely alleges conclusorily that she was terminated because of her gender and/or her race. Such
bald, unsupported legal conclusions are not entitled to any weight and will be disregarded. See
Fowler, 578 F.3d at 210.
In accordance with the foregoing, the motion to dismiss is GRANTED as to Counts 3-6.

3. Retaliation Claims
To state a cognizable retaliation claim, Rodriguez must plead that she: (1) participated in
a protected activity; (2) suffered an adverse employment action; and (3) that there was a causal
connection between the protected activity and adverse employment action. Moore v. City of
Philadelphia, 461 F.3d 331, 340 (3d Cir. 2006). Defendant contends that Rodriguez has failed to
plead any actionable causal connection. In response, Plaintiff contends that she has pled that she
was “treated worse” after she complained about Legin’s harassment.
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Both of the alleged decision-makers are female. Their race is not pled.

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The Court agrees with Defendant. As noted above, Plaintiff has made at least three
attempts to plead plausible claims in response to motions to dismiss. Nevertheless, she has failed
to plead any facts which would support a plausible retaliation claim.
The only protected activity alleged by Rodriguez was her undated request, in an email to
Janssen, to be transferred away from Legin due to his alleged harassment. Rodriguez’s email
request did not result in a transfer. Notably, the report that actually resulted in a transfer was
made (at an unspecified later time) by a co-worker. See Second Amended Complaint ¶ 25.
Rodriguez has failed to plead any facts from which the Court could infer that Janssen retaliated
against Rodriguez based on her original email. To the contrary, the Second Amended Complaint
states that Janssen began to criticize her work “after the transfer” (which resulted from the coworker’s report to higher-ups). See Second Amended Complaint ¶ 27. Moreover, Rodriguez
merely alleges conclusorily that she was treated worse, but provides no supporting facts. The
Second Amended Complaint reflects that Legin engaged in repeated alleged harassment early in
Rodriguez’s employment but that she suffered no such harassment after being transferred to her
new training supervisor, Andrea Carroll. See Second Amended Complaint ¶ 26. A bald,
unsupported legal conclusion that Rodriguez was “treated worse” after she asked for a transfer is
not entitled to any weight and will be disregarded. See Fowler, 578 F.3d at 210.
In accordance with the foregoing, the motion to dismiss will be GRANTED as to Counts
7 and 8.

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Conclusion
Defendant has filed numerous motions to dismiss this case in its entirety. Plaintiff has
made numerous attempts to amend her complaint in an effort to state cognizable claims. It is
now long past time to move beyond the pleading stage.
It is clear that the real gravamen of Plaintiff’s case is based on a hostile work
environment theory. For the reasons set forth above, the Court concludes that her hostile work
environment theory is viable. The sole remaining Defendant, Allegheny County, shall file an
Answer as to Counts 1 and 2 on or before April 20, 2015. In stark contrast, as explained above
Plaintiff has failed to plead plausible claims for gender or race discrimination or for retaliation,
despite numerous opportunities to do so. Accordingly, Counts 3-8 of the Second Amended
Complaint will be DISMISSED WITH PREJUDICE and without leave to amend.
An appropriate Order follows.

McVerry, J.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KELLI RODRIGUEZ,
Plaintiff,
v

ALLEGHENY COUNTY and ALLEGHENY
COUNTY DEPARTMENT OF EMERGENCY
SERVICES,
Defendants.

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ORDER OF COURT
AND NOW, this 2nd day of April 2015, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that DEFENDANT’S
MOTION TO DISMISS SECOND AMENDED COMPLAINT (ECF No. 9) is GRANTED IN
PART AND DENIED IN PART, as follows:
(1) the motion is DENIED as to Counts 1 and 2;
(2) the motion is GRANTED as to Counts 3-8, which are hereby DISMISSED WITH
PREJUDICE and without leave to amend;
(3) the motion is GRANTED in that Plaintiff concedes that she is not entitled to recover
punitive damages; and
(4) the motion is GRANTED in that “Allegheny County Department of Emergency
Services” is hereby removed as a party.

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The caption is amended as follows:
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KELLI RODRIGUEZ,
Plaintiff,
v

ALLEGHENY COUNTY,
Defendant.

The sole remaining Defendant, Allegheny County, shall file an Answer as to Counts 1
and 2 of the Second Amended Complaint on or before April 20, 2015.

BY THE COURT:
s/Terrence F. McVerry
United States District Judge

cc:

Joseph Pometto, Esquire
Email: [e-mail]
Michael L. Kraemer, Esquire
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Martell Harris
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Virginia Spencer Scott, Esquire
Email: [e-mail]

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