KNOX v. PPG INDUSTRIES, INC.
Filing
18
MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's 11 Motion to Dismiss for Failure to State a Claim as set forth more fully therein. Signed by Judge Terrence F. McVerry on 1/22/2016. (rjw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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) 2:15-cv-1434
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CAROL KNOX,
Plaintiff,
v.
PPG INDUSTRIES, INC.,
Defendant.
MEMORANDUM OPINION
This is an employment discrimination case, alleging age and gender discrimination under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.; Age
Discrimination and Employment Act, 29 U.S.C. §§ 621-634; and the Pennsylvania Human
Relations Act (“PHRA”), 43 P.S. §§ 951-63. Pending before the Court is DEFENDANT’S
MOTION TO DISMISS (ECF No. 11), along with a brief in support (ECF No. 12), filed by PPG
Industries, Inc. Plaintiff, Carol Knox, filed a BRIEF IN RESPONSE TO DEFENDANT’S
MOTION TO DISMISS (ECF No. 14), and PPG filed a reply brief (ECF No. 15). Accordingly,
the motion is ripe for disposition.
I.
Background
A.
Factual Background1
Plaintiff is a woman who is over forty years old. She began working for PPG in 1990,
was promoted to Senior Chemist in 1992, and received what she describes as a “promotion”
approximately every three years for the next 18 years, until her termination in 2013. During her
tenure at PPG, she never had a performance rating below average and was a distinguished
1.
The complaint contains numerous additional allegations related to Plaintiff’s termination and, more
specifically, the investigation (or alleged lack of investigation) surrounding it. Plaintiff also takes PPG to task for
failing to adhere to its “Resolve” program and its Ethics Pamphlet and describes several purported comparators, who
engaged in conduct that was allegedly similar to that which Plaintiff is alleged to have engaged but for which they
were not terminated. Since PPG has not sought to dismiss Plaintiff’s disparate-treatment claims insofar as they relate
to her termination, the Court will not describe these additional allegations at length.
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employee, having received numerous awards over the years.
In 2008, Plaintiff was assigned to the position of “Project Manager” in the Teslin
Research Group and designated to the level of “Senior Research Associate.” The Research
Group, which consisted of 70 to 80 people (of whom 20 percent were women), included four
other managers, each of whom reported to Peter Foller. Plaintiff was the only female manager.
In 2010, Truman Wilt replaced Foller as Director of Research for the Teslin Group, and
Plaintiff began reporting to Wilt. During their first meeting, Wilt allegedly asked Plaintiff her
age. When Plaintiff attempted to make a joke to diffuse the tension, Wilt persisted and kept
guessing at Plaintiff’s age. During that same meeting, Wilt said that he felt uncomfortable around
women, whom he thought “were better suited in business rather than R and D.” Compl. ¶ 17.
Wilt also allegedly told Plaintiff that she should consider transferring to a non-managerial
position within the company.
According to Plaintiff, this meeting was only a harbinger of things to come. Over the next
three years, Plaintiff claims that Wilt never complimented or praised her work, even though she
was leading one of PPG’s top six projects, and gave her less favorable assignments than her male
counterparts. He also often commented that women should work on the business side of PPG and
rather than the technical side. In addition, Wilt allegedly assigned Plaintiff “administrative
teams,” while assigning her male counterparts “technical teams.” Because PPG employees were
reviewed, in part, based on their technical achievements, this decision negatively impacted
Plaintiff’s career track.
On unspecified dates in 2011, 2012, and 2013, Plaintiff requested that Wilt give her what
she describes as a “promotion,” but Wilt refused. According to Plaintiff, PPG employees
typically must “perform a job at a new level for a year prior to getting promoted.” Id. ¶ 21.
2
Plaintiff alleges, however, that she “performed the job level for five (5) years and was not even
considered for a promotion,” even though she had historically received a promotion every three
to five years and had never before been rejected for one. Id. “Plaintiff’s qualifications for
promotion included the fact that she was doing the same job (e.g. R/D manager for business unit)
as her male counterpart employees that were a level above her.” Id. ¶ 22. Wilt allegedly informed
Plaintiff that she could not be promoted because her business unit did not earn enough money to
justify the costs of paying Plaintiff more than she had been making. Nevertheless, in 2011, Wilt
transferred a male employee named Brian Rearick, who was at the level above Plaintiff, into
Plaintiff’s working group, seemingly belying his earlier claim that the group could not support
someone getting paid at that level. After Rearick left the group in 2012, Wilt transferred another
male employee, Peter Drzal, into Plaintiff’s group and then pressured Plaintiff to promote him.
Wilt allegedly became irate whenever Plaintiff refused to do so.
Meanwhile, during the years he was Plaintiff’s supervisor, Wilt often encouraged her to
transfer to another division, saying this would be the only way she could get promoted and that it
would be good for her career. In June 2013, Plaintiff was offered a position in another group
within PPG, which Wilt “highly encouraged” her to take. Id. ¶ 22. Eventually, however, she
learned from Chuck Kahle, the Director of R&D (and Wilt’s boss) that the move would actually
be a “dead end” for her career. Also that month, Wilt advised Plaintiff to transfer out of the
group because the group was moving to Ohio, so Plaintiff would have to sell her newly built
home in Pennsylvania. Plaintiff later learned, however, that no such move was really planned.
Sometime in 2012, Plaintiff met with Allan Foss, the Human Resources Director for the
Teslin Group, and complained that Wilt had unfairly denied her requests for “promotions.” She
also complained about Wilt’s attempts to get her to transfer to another division. Foss explained to
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Plaintiff that, contrary to what Wilt had told her, “the size of business does not have anything to
do with limitation on level[.]” Id. ¶ 28. According to Plaintiff, Foss “even emphasized” how Wilt
brought Brian Rearick into the group at a higher level than Plaintiff. Id. Moreover, Foss
explained that if Plaintiff left her position with PPG, Wilt planned to transfer Peter Drzal to her
old position “at a higher level (including higher pay).” Id.
Aside from Wilt’s treatment of her, Plaintiff claims that Wilt “failed to hire and promote
women and actively sought to remove the existing female employees that he supervised.” Id. ¶
30. An example of this occurred in 2012, “when Plaintiff recommended that a female employee
(Qunhui Guo) be given an exceptional rating” and “Wilt rejected this recommendation and gave
an inexperienced white male, Justin Martin, an exceptional rating despite Mr. Martin having less
experience and time at PPG than Mrs. Guo.” Id. ¶ 31.
Similarly, Plaintiff alleges that Wilt “promoted young males over women and older men,
and males over older women” Id. ¶ 34. According to Plaintiff, Wilt also made comments that
reflected his bias against older workers. For example, in 2012, he repeatedly asked Plaintiff how
old an employee named JD was and when he planned to retire. Wilt asked Plaintiff the same
questions regarding an employee named Luke Parinello in 2012.
Plaintiff was terminated on or about July 29, 2013, after she was accused of sending an email containing photographs of two of her co-workers posing together as a couple to fellow coworkers. Plaintiff had previously been involved in an investigation of the two employees
depicted in the photos. She denies that she sent the photographs, and takes issue with the manner
in which PPG handled the investigation surrounding the incident.
B.
Administrative Proceedings
On December 9, 2013, Plaintiff cross-filed a charge of discrimination against PPG with
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the Pennsylvania Human Relations Commission (“PHRC”) and the Equal Employment
Opportunities Commission (“EEOC”). She alleged claims of sex discrimination, age
discrimination, and retaliation. As Plaintiff describes it in her Complaint, her EEOC charge
alleged “[t]hat the discrimination was based upon many factors, including Defendant’s failure to
promote Plaintiff; failure to maintain a non-hostile work environment; failure to properly
investigate claims made against her; improperly terminating her on July 29, 2013; failure to
follow internal procedures concerning ethics and conflict resolution; and failure to reinstated
[sic] Plaintiff on November 8, 2013.” Id. ¶ 80. PPG responded to the charge in a letter dated
April 7, 2014. On April 23, 2015, Plaintiff’s counsel sent a letter to the EEOC, explaining that
she had begun representing Plaintiff. The letter also served as a rebuttal to PPG’s position
statement. Attached to the letter was a document styled “Amendments to EEOC Charge,” in
which Plaintiff alleged, inter alia, that PPG engaged in pay discrimination against her because of
her gender and/or age. Specifically, the document alleged that from 2008 until 2013, Plaintiff
“was a manager and [her] level was Senior Research Associate.” Amendments to EEOC Charge,
ECF No. 11-2. “In this position,” Plaintiff “received a salary that was 20% below what other
similarly situated males and/or individuals under 40 years old were paid.” Id.
C.
Procedural History
After receiving a right-to-sue letter from the EEOC, Plaintiff initiated this action on
November 2, 2015. In Count I, Plaintiff alleges a Title VII sex discrimination claim. Plaintiff
claims in this Count (1) that she was terminated because of her gender and replaced by a male
employee, (2) that she was paid less than her “male counterparts,” and (3) that Defendant failed
to “promote” her, while other less qualified and less experienced male employees were
promoted. In Count II, Plaintiff alleges a Title VII disparate-impact claim, alleging that
5
“Defendant maintained policies, patterns, practices, or omissions that adversely impacted
females, including Plaintiff, and caused them to be paid less than their male counterparts.”
Compl. ¶ 96. According to the Complaint, “[t]he subject policies, patterns, practices or omissions
included failing to promote females and failing to give them performance review ratings that
were as high as similarly situated males.” Id. ¶ 97. Count III is a claim for disparate treatment
under the ADEA, which mirrors Count I. Count IV is a disparate-impact claim under the ADEA,
with Plaintiff alleging that the “subject policies, patterns, practices or omissions included failing
to promote individuals over the age of 40 . . . and failing to given them performance review
ratings that were as high as similarly situated people under the age of 40 . . . .” Id. ¶ 114. Count
V alleges a claim for age and sex discrimination under the PHRA.
II.
Legal Standard
A complaint may be dismissed under Rule 12(b)(6) for “failure to state a claim upon
which relief can be granted.” “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). “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. The
plausibility standard “does not impose a probability requirement.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007). However, a pleading must show “more than a sheer
possibility that a defendant acted unlawfully.” Iqbal, 556 U.S. at 678
To determine the legal sufficiency of a complaint after Twombly and Iqbal, the court
must follow a three-step approach. Santiago v. Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir.
2010). First, “the court must “tak[e] note of the elements a plaintiff must plead to state a claim.’”
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Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, the court “should
identify allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). Third, “‘where there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.’” Id. (quoting Iqbal, 556 U.S. at 679). These facts,
moreover, must be interpreted in the light most favorable to the plaintiff, and all reasonable
inferences must be drawn in the plaintiff’s favor. Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d
153, 154 n.1 (3d Cir. 2014) (citation omitted).
III.
Discussion
PPG moves to dismiss three aspects of Plaintiff’s complaint.2 First, Defendant argues that
Plaintiff’s Title VII and ADEA pay discrimination claims should be dismissed because they were
not raised before the EEOC in a timely fashion. Second, Defendant argues that Plaintiff’s socalled failure-to-promote claim should be dismissed because Plaintiff has not identified any
particular position for which she applied and was rejected. Third, Defendant argues that
Plaintiff’s disparate-impact claims under Title VII and the ADEA are legally insufficient because
the complaint fails to identify a specific policy or practice that adversely impacted her and
women and/or employees over. These issues will be addressed seriatim.
A.
Pay Discrimination
Before bringing suit under Title VII or the ADEA, a plaintiff must exhaust her
administrative remedies by filing a charge of discrimination with the EEOC within 300 days of
the challenged employment practice. Hildebrand v. Allegheny Cnty., 757 F.3d 99, 109 (3d Cir.
2014); Noel v. The Boeing Co., 622 F.3d 266, 270 (3d Cir. 2010). “After a plaintiff files a charge
2.
As already noted, supra n.1, PPG has not sought to dismiss Plaintiff’s Title VII or ADEA disparatetreatment claims insofar as they relate to her termination. Nor has PPG sought to dismiss Plaintiff’s PHRA claim.
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against an employer with the [EEOC] and subsequently receives a right-to-sue letter, her suit is
limited to claims that are within the scope of the initial administrative charge.” Shahin v.
Delaware, 563 F. App’x 196, 198 (3d Cir. 2014) (citing Antol v. Perry, 82 F.3d 1291, 1296 (3d
Cir. 1996)). All claims that were not administratively exhausted within the requisite time period
are “administratively barred.” Noel, 622 F.3d at 270. Under the EEOC’s regulations, however,
“[a] charge may be amended to cure technical defects or omissions, including failure to verify
the charge, or to clarify and amplify allegations made therein.” 29 C.F.R. § 1601.12(b). And,
importantly, “[s]uch amendments and amendments alleging additional acts which constitute
unlawful employment practices related to or growing out of the subject matter of the original
charge will relate back to the date the charge was first received.” Id.; see also 29 C.F.R. §
1626.8(c) (setting forth the same standard with respect to ADEA claims).
PPG argues that Plaintiff’s pay discrimination claims, which were undisputedly not raised
by name until Plaintiff submitted her “Amendments” to the EEOC charge in April 2015, do not
relate back to the filing of the initial charge and, therefore, are barred from being asserted here.
This is so, PPG argues, because the claims are “entirely new and distinct” and “bear no relation
whatsoever to the subject matter of [Plaintiff’s] original charge.” Defs.’ Br. 5-6. Plaintiff
counters that her amended charge merely “added facts to clarify the original charge,” and so the
allegations therein should relate back when the charge was filed.
The Court agrees with Plaintiff. As an initial matter, the Court finds that the April 2015
letter from Plaintiff’s counsel amounted to a valid amendment of Plaintiff’s charge.3 See Davis v.
Kraft Foods N. Am., No. CIV.A. 03-6060, 2006 WL 237512, at *5 (E.D. Pa. Jan. 31, 2006)
3.
PPG has not contested this point. See Def.’s Br. 5 n.2 (explaining that PPG has assumed, for purposes of
this motion, that the letter submitted to the EEOC by Plaintiff’s counsel “constitutes an amendment to her original
charge”).
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(explaining that “courts have liberally construed letters and related documents sent to the EEOC
as amending the original charges”); Littlejohn v. City of New York, 795 F.3d 297, 323 (2d Cir.
2015) (explaining that an unsworn letter to the EEOC can amend a charge and will relate-back so
long as it satisfies the requirements of 29 C.F.R. § 1601.12(b)).
The Court also finds that the requirements for relation-back have been satisfied. Plaintiff
alleged in her initial EEOC charge that “Wilt rejected [her] for all promotional opportunities
[she] was eligible for.” EEOC Charge, ECF No. 11-2. As Plaintiff explains in her brief, the
meaning of the phrase “promotional opportunities” is not entirely clear because PPG apparently
has a two-step promotion procedure. First, an employee is moved into a new position for one to
two years. Then, assuming that the employee’s performance has been satisfactory, the employee
is given a corresponding pay raise. According to the complaint, Plaintiff was moved into a
managerial role in 2008. However, she was never given the corresponding pay raise to which she
believed she was entitled, despite her requests in 2011, 2012, and 2013. It is apparent that the
decisions to deny her a raise are at the heart of her claim. Since the amended charge only sought
to clarify this – albeit in a manner that, itself, was not exactly clear – it relates back to the date
the initial charge was received by the EEOC.4 Cf. Mordel v. Ecko Housewares, No. 89 C 2965,
1989 WL 106600, at *3 (N.D. Ill. Sept. 7, 1989) (“The meaning of the words, pay raises and
promotions, are very closely related and can even be used interchangably [sic] in today’s
business world. As such, this allegation is not considered to be unrelated to what was stated in
the EEOC complaint and therefore will not be dismissed.”). Accordingly, the Court concludes
4.
In arguing that Plaintiff’s pay discrimination claim is barred, PPG cites cases that say, in a nutshell, that
“compensation-related claims and failure-to-promote claims are ‘distinct grievances that are not coextensive[.]’”
Def.’s Reply Br. 3 (quoting Noel, 622 F.3d at 271). That is true, as a general matter. But as the Court will explain,
Plaintiff is not really pursuing a true failure-to-promote claim. She is challenging the instances when she was
allegedly denied a pay raise and the effect those decisions had on her pay in relation to her male and/or younger
colleagues.
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that Plaintiff’s pay discrimination claims under Title VII and the ADEA are not administratively
barred, and Defendant’s motion will be denied insofar as it seeks to dismiss these claims.
B.
Failure to “Promote”
A classic failure-to-promote claim has four elements: a plaintiff must “show ‘(i) that
[she] belongs to a [protected category]; (ii) that [she] applied and was qualified for a job for
which the employer was seeking applicants; (iii) that, despite [her] qualifications, [she] was
rejected; and (iv) that, after [her] rejection, the position remained open and the employer
continued to seek applicants from persons of complainant’s qualifications.’” Noel, 622 F.3d at
274 (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)). PPG argues that Plaintiff
cannot establish the second and third elements – i.e., that she applied for an open position and
was rejected. Plaintiff doesn’t dispute that these elements aren’t met. Instead she requests leave
to amend the complaint to clarify the nature of her claim.
Given the explanation that Plaintiff has already provided in her brief, however, the Court
finds that further clarification is not necessary. It is already clear to the Court that,
notwithstanding Plaintiff’s use of the term “promotion” in her complaint and a variation thereof
in her EEOC charge, she is not advancing a true failure-to-promote claim. That is, she is not
claiming that she should have been given a new position. Rather, the gravamen of Plaintiff’s
claim is that, after she was given a new position in 2008, she was denied a corresponding pay
raise – which she was allegedly entitled to under PPG policy – because she is a woman and/or
because she is over the age of 40. See Pl.’s Br. 11 (“[Plaintiff] believes that after 1 year in the
management position, she should have been given a promotion. Instead, her supervisor, Mr. Wilt
refused to give her a change in pay and gave various reasons why.”). While Plaintiff may not
have adequately pled a true failure-to-promote claim (as she concedes), she has adequately pled a
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claim that she was not given a raise for discriminatory reasons, and the decision to deny her a
raise is an individually actionable “adverse employment action” under Title VII and the ADEA.
See, e.g., Lockridge v. The Univ. Of Maine Sys., 597 F.3d 464, 470 (1st Cir. 2010) (concluding
that denial of a pay raise could amount to discrimination “against an employee with respect to
her compensation on the basis of gender”); Gillis v. Georgia Dep’t of Corr., 400 F.3d 883, 887
(11th Cir. 2005) (explaining that the denial of a pay raise is an “adverse employment action”);
Wojciechowski v. Nat’l Oilwell Varco, L.P., 763 F. Supp. 2d 832, 858 (S.D. Tex. 2011)
(explaining that “[t]here is no question that Defendant’s alleged failure to give Plaintiff a raise
constitutes an adverse employment action”). Therefore, subject to the understanding that Plaintiff
is not actually pursuing a failure-to-promote claim but is really challenging the decisions to deny
her a pay raise (and the corresponding effect those decisions had on her level of remuneration
vis-à-vis that of her four male manager counterparts), Defendant’s motion to dismiss this aspect
of the complaint will be denied.5
5.
There still may be some timeliness issues lurking for Plaintiff with respect to her pay discrimination claims,
though they do not appear to be fatal. Since Plaintiff filed her EEOC charge on December 9, 2013, she can only
challenge discriminatory acts taking place on or after February 12, 2013 (300 days before she filed her EEOC
charge). Two of the times Plaintiff was allegedly denied a raise – on unspecified dates in 2011 and 2012 – were
outside the cut-off date. However, under the Lilly Ledbetter Fair Pay Act of 2009, which reinstated the “paycheck
accrual rule” that the Supreme Court had eliminated in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618
(2007),
an unlawful employment practice occurs, with respect to discrimination in compensation . . . when
a discriminatory compensation decision or other practice is adopted, when an individual becomes
subject to a discriminatory compensation decision or other practice, or when an individual is
affected by application of a discriminatory compensation decision or other practice, including each
time wages, benefits, or other compensation is paid, resulting in whole or in part from such a
decision or other practice.
42 U.S.C. § 2000e–5(e)(3)(A). The Third Circuit has held that the denial of a pay raise constitutes a “compensation
decision” under the Ledbetter Act. Mikula v. Allegheny Cnty., 583 F.3d 181, 186 (3d Cir. 2009) (citing Reese v. Ice
Cream Specialties, Inc., 347 F.3d 1007, 1013 (7th Cir. 2003)). Thus, insofar as Plaintiff’s claim is premised on
paychecks received after February 12, 2013, which reflect the “periodic implementation” of the previously made
discriminatory “compensation decision,” the claim is timely. See id. The claim, however, would appear to be
untimely as to paychecks received before that date.
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C.
Disparate Impact
“Title VII’s disparate-impact provision prohibits employment practices that have the
unintentional effect of discriminating based on race.” NAACP v. N. Hudson Reg’l Fire & Rescue,
665 F.3d 464, 476 (3d Cir. 2011) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987
(1988); Newark Branch, NAACP v. City of Bayonne, N.J., 134 F.3d 113, 121 (3d Cir. 1998)).
The ADEA also authorizes disparate-impact claims.6 Smith v. City of Jackson, 544 U.S. 228, 233
(2005). Under either statute, such claims have two components. Watson, 487 U.S. at 994. “The
plaintiff must begin by identifying the specific employment practice that is challenged.” Id. Then
“the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the
practice in question has caused the exclusion of applicants for jobs or promotions because of
their membership in a protected group.” Id.
With regard to the first requirement, the United States Supreme Court has made clear that
“it is not enough to simply allege that there is a disparate impact on workers, or point to a
generalized policy that leads to such an impact. Rather the employee is ‘responsible for isolating
and identifying the specific employment practices that are allegedly responsible for any observed
statistical disparities.’” Smith, 544 U.S. 228, 241 (2005) (quoting Wards Cove Packing Co. v.
Antonio, 490 U.S. 642, 656 (1989)). PPG argues that Plaintiff has failed to do that in this case.
Plaintiff counters that, to the contrary, “the complaint identifies Defendant’s apparently neutral
processes regarding investigation of employee misconduct, determination of employee discipline
for misconduct, determination for promotion and determination of pay,” each of which “fall
6.
Although both Title VII and the ADEA “authorize recovery on a disparate-impact theory, the scope of
disparate-impact liability under ADEA is narrower than under Title VII.” Smith, 544 U.S. at 240. That is so for two
reasons. First, under ADEA, conduct that would otherwise be prohibited is permitted “where the differentiation is
based on reasonable factors other than age.” Id. at 233. Second, the 1991 amendments that expanded the scope of of
Title VII “did not amend the ADEA . . . . Hence, Wards Cove’s pre-1991 interpretation of Title VII’s identical
[disparate-impact] language remains applicable to the ADEA.” Id. at 240. These distinctions are not material to this
case, though, so Plaintiff’s Title VII and ADEA disparate-impact claims will be analyzed together.
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more heavily on women than men.”7 Pl.’s Br. 15.
The Court is skeptical whether Plaintiff has been sufficiently precise in her attempt to
isolate the particular employment practice(s) responsible for the alleged disparity. Presumably,
each of the “processes” Plaintiff has identified has multiple components, but Plaintiff has made
no effort to identify which of those she is challenging. She has also not attempted to show that
the elements of these “processes” “are not capable of separation for analysis,” such that each of
them “may be analyzed as one employment practice.” 42 U.S.C. § 2000e-2(k)(1)(B)(i).
However, even casting these concerns aside, Plaintiff’s attempt to plead a disparateimpact claim fails because it suffers from an even bigger defect. As PPG argues, the complaint
contains a “complete lack of factual content directed at disparate-impact liability.” Adams v. City
of Indianapolis, 742 F.3d 720, 733 (7th Cir. 2014). To succeed on a disparate-impact claim, it is
not enough for a plaintiff to show that she was negatively affected by the challenged
employment practice. See Massarsky v. Gen. Motors Corp., 706 F.2d 111, 121 (3d Cir. 1983)
(citations omitted) (“An adverse effect on a single employee, or even a few employees, is not
sufficient to establish disparate impact”). Rather, there must be proof that “other similarly
situated employees” were “likewise affected.” Id. “[P]laintiffs are permitted to rely on a variety
of statistical methods and comparisons to support their claims,” and, at least at this early stage of
the lawsuit, “some basic allegations of this sort will suffice.” Adams, 742 F.3d at 733.
7.
It bears noting that in the counts of her complaint dedicated to disparate impact, Plaintiff says nothing
about the investigative and disciplinary procedures employed by PPG. She alleges only that the “subject policies,
patterns, practices or omissions included failing to promote females and failing to give them performance review
ratings that were as high as similarly situated males” and “failing to promote individuals over the age of 40 . . . and
failing to given them performance review ratings that were as high as similarly situated people under the age of 40.”
Compl. ¶¶ 97, 114 (emphasis added). Nevertheless, Plaintiff does make allegations with respect to the four
procedures discussed in her brief elsewhere in her complaint. Because her disparate-impact claim fails for other
reasons, the Court will give Plaintiff the benefit of the doubt and assume that she properly identified the challenged
employment practices in her complaint, as is required. See EEOC v. Peoplemark, Inc., 732 F.3d 584, 591 (6th Cir.
2013) (citations omitted) (“A party alleging a disparate-impact theory must allege a specific employment practice in
the complaint.”).
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Plaintiff’s complaint comes up woefully short in this respect. It does not allege any facts
tending to show that PPG’s process of investigating misconduct disparately impacted women
and/or workers over age 40. Nor does it allege facts to support the conclusion that PPG’s
disciplinary procedures fell more harshly on women and/or older workers or that the way in
which PPG determined promotions and pay had such an effect.
While Plaintiff does employ some disparate-impact buzzwords in her complaint – e.g.,
she claims that PPG’s policies “adversely impacted” women – these “are bare legal conclusions,
not facts[,]” id., and thus cannot carry Plaintiff’s claim over the plausibility threshold. Likewise,
Plaintiff’s assertion that only 20 percent of the 70 to 80 employees in the Research Group were
women is not enough to save her claim. For one thing, Plaintiff has not attempted to explain how
any of the challenged employment practices (again, assuming the “processes” she identified
qualify as such) have any connection to the number of women employed in the Research Group.
See Wards Cove, 490 U.S. 642, 657 (1989) (explaining that disparate-impact plaintiffs “have to
demonstrate that the disparity they complain of is the result of one or more of the employment
practices that they are attacking”). Indeed, she is not challenging PPG’s hiring practices; nor
could she since she was hired. See Embrico v. U.S. Steel Corp., 404 F. Supp. 2d 802, 828 (E.D.
Pa. 2005) (“As a threshold matter, however, a plaintiff must have suffered some type of adverse
employment action before he or she can bring a cognizable disparate impact claim.”).
Furthermore, even if she were making such a challenge, she has not alleged any facts about the
number of qualified potential applicants in the relevant labor market, so the 20 percent figure,
standing alone, is totally meaningless. See City of Bayonne, 134 F.3d at 121. In view of these
deficiencies, Plaintiff’s disparate-impact claims under Title VII and the ADEA will be dismissed.
At the conclusion of her brief, Plaintiff tacks on a one-sentence request for leave to
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amend her complaint, in the event that the Court dismisses her disparate-impact claims – which it
plans to do. See Pl.’s Br. 14. This “‘single sentence, lacking a statement for the grounds for
amendment and dangling at the end of her memorandum, [does] not rise to the level of a motion
for leave to amend.’” Ramsgate Court Townhome Ass’n v. W. Chester Borough, 313 F.3d 157,
161 (3d Cir. 2002) (quoting Calderon v. Kansas Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180,
1187 (10th Cir. 1999)). Without having been provided a proposed amended complaint or at least
a description of the proposed amendments, this Court has “nothing upon which to exercise its
discretion” to permit a curative amendment. See id. (citing Lake v. Arnold, 232 F.3d 360, 373 (3d
Cir. 2000)). Therefore, Plaintiff’s last-gasp request for leave to amend will be denied, and her
disparate-impact claims will be dismissed with prejudice. See Ruddy v. U.S. Postal Serv., 455 F.
App’x 279, 283 (3d Cir. 2011) (quoting Ramsgate, 313 F.3d at 161) (“hold[ing] [that] the
District Court did not abuse its discretion by denying [the plaintiff’s] request to file an amended
complaint, because . . . [the plaintiff’s] failure to file a motion for leave to amend or an amended
complaint meant the District Court ‘had nothing upon which to exercise its discretion’”).
IV.
Conclusion
For the reasons stated, PPG’s motion to dismiss will be GRANTED IN PART and
DENIED IN PART. Plaintiff will be permitted to pursue her pay discrimination claim and her
claim that she was unlawfully denied a pay raise because of her gender and/or age. However, her
disparate-impact claims under Title VII and the ADEA will be dismissed, without leave to
amend. An appropriate order follows.
McVerry, S.J.
15
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
) 2:15-cv-1434
)
)
)
)
CAROL KNOX,
Plaintiff,
v.
PPG INDUSTRIES, INC.,
Defendant.
ORDER
AND NOW, this 22nd day of January, 2016, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that
DEFENDANT’S MOTION TO DISMISS (ECF No. 11) is GRANTED IN PART, insofar as it
relates to Plaintiff’s disparate-impact claims under Title VII and the ADEA, and DENIED IN
PART, in all other respects. Plaintiff’s disparate-impact claims under Title VII and the ADEA
are hereby DISMISSED WITH PREJUDICE.
Defendant shall file an answer to the remaining counts on or before February 5, 2016.
The parties shall confer as necessary and file their Stipulation Selecting ADR Process and their
Rule 26(f) Report on or before February 19, 2016. The Initial Case Management Conference is
hereby SCHEDULED on March 3, 2016, at 8:30 a.m. in Courtroom 6C.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge
cc:
Brian D. Walters
Email: bdw@deltalawgrp.com
Theodore A. Schroeder
Email: tschroeder@littler.com
Allison R. Brown
Email: arbrown@littler.com
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