JOHNS v. ASMC AMBULANCE SERVICE MANAGEMENT CORPORATION

Filing 13

MEMORANDUM OPINION AND ORDER granting 9 Defendant's Motion to Dismiss. In accordance with this Memorandum Opinion and Order, this case is DISMISSED WITH PREJUDICE. Accordingly, the Clerk of Courts shall docket this case CLOSED. Signed by Judge Terrence F. McVerry on 3/29/2016. (rjw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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) 2:16-cv-36
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BILLIE JO JOHNS,
Plaintiff,
v.
ASMC, AMBULANCE SERVICE
MANAGEMENT CORPORATION,
Defendant.

MEMORANDUM OPINION
Pending before the Court is DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S
AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) filed by Defendant,
Ambulance Service Management Corporation (“ASMC”). (ECF No. 9). The motion has been
fully briefed and is ripe for disposition. (ECF Nos. 10, 11).
I.

Background
Plaintiff initiated this action in the Court of Common Pleas of Indiana County,

Pennsylvania, on December 3, 2015. Defendant timely removed it to this Court on January 8,
2016, and then filed a motion to dismiss, which the Court granted on February 8, 2016, while
also granting Plaintiff leave to file an Amended Complaint. Plaintiff has done so.
In her Amended Complaint, Plaintiff alleges that she was employed by Defendant as an
emergency medical technician from September 7, 2013, until March 31, 2014. Am. Compl. ¶ 3.
On October 2, 2013, she alleges, she obtained a temporary protection from abuse (“PFA”) order
from the Court of Common Pleas of Indiana County. Id. ¶ 4. “The Defendant in the [PFA] action
was a male, who was also employed by the Defendant[.]” Id. ¶ 5. Thereafter, Plaintiff informed
Defendant that she had obtained a PFA order “against a male fellow employee.” Id. ¶ 6.
According to Plaintiff, “Defendant has an unwritten policy of treating female employees who file
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[PFA] complaints differently from male employees[.]” Id. ¶ 7. Specifically, Plaintiff claims,
Defendant does “nothing to male employees who file for protection from abuse, but female
employees are pressured to either drops the charges, or to quit[.]” Id. ¶ 8. Plaintiff alleges that
Defendant “implemented its unwritten policy by acting in the following manner to the Plaintiff,
because she was a female, and not to similarly situated males:” Plaintiff was told it was wrong
for her to file for the PFA order “against an employee, something male employees who file are
not told, and that the Plaintiff should have allowed the Defendant ‘to handle the matter’[;]”
Defendant made “Plaintiff’s job impossible for her to perform, by constantly criticizing her job
performance for things that previously had not been criticized, and for which males similarly
situated were not being criticized[;]” Defendant “[c]onstantly watch[ed] her while working and
complain[ed] to her about inconsequential matters, matters for which males were not similarly
treated, and which prior to filing the [PFA] complaint, she had not received any complaints[;]”
and “Defendant initially promised that the Plaintiff would not be working with the person against
whom she had received a [PFA] order, then immediately violated that promise by making her
work with the person[.]” Id. ¶ 9(A)-(D). As a result of these alleged actions, Plaintiff alleges that
she “felt compelled to quit her job with the Defendant and believes that she was constructively
discharged[.]” Id. ¶ 10.
II.

Discussion
“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 [C]ourt to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. The plausibility standard “does not

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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 engage in a three-step inquiry, to which it now turns.
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016).
At the first step of this inquiry, the Court must take note of the elements that Plaintiff
“must plead to state her claims.” Id. The Court previously found it unclear just what type of
claim Plaintiff was pursuing, but she has since attempted to clarify things. According to Plaintiff,
[t]he basis for [her] Title VII claim is that the Defendant treats women who file
[PFA] actions in state court differently than men, and the treatment given to
women is designed to force them to drop their state court action against a fellow
male employee, or force the female employee to quit. Men who file are not
adversely treated by the Defendant.
Pl.’s Mem. in Opp. at 1. In light of this explanation, the Court will analyze Plaintiff’s claim as a
Title VII disparate-treatment claim.1
Title VII makes it an “unlawful employment practice for an employer . . . to discriminate
against any individual . . . , because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1). “A Title VII plaintiff may make a claim for discrimination
‘under either the pretext theory set forth in McDonnell Douglas Corp. v. Green or the mixedmotive theory set forth in Price Waterhouse v. Hopkins, under which a plaintiff may show that
an employment decision was made based on both legitimate and illegitimate reasons.’” Connelly,
809 F.3d at 787 (quoting Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008)). At this stage of
1.
The Court analyzed Plaintiff’s first Complaint as though she might have been attempting to plead a Title
VII retaliation claim, as well. Although the allegations in the Complaint were insufficient to do so, particularly with
regard to the protected-activity requirement, the Court effectively provided Plaintiff with a roadmap for how she
would need to amend her Complaint in order to state a claim. Plaintiff, however, has not made any effort to follow
the Court’s roadmap. In particular, she has not pled any additional facts about the circumstances under which she
obtained the PFA order, such that it might be possible to conclude that she engaged in protected activity under Title
VII when she obtained it. Indeed, unlike the first Complaint, the Amended Complaint makes no reference
whatsoever to retaliation. Thus, the Court must presume that Plaintiff does not intend to pursue a retaliation claim.

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the lawsuit, however, a plaintiff is not required to decide “whether she is proceeding under a
mixed-motive or pretext theory, nor is she required to establish a prima facie case, much less to
engage in the sort of burden-shifting rebuttal that McDonnell Douglas requires at a later stage in
the proceedings.” Id. at 791. “Thus, for purposes of noting the elements [Plaintiff] must plead to
state a disparate treatment claim, [the Court] takes it as given that she may advance either a
mixed-motive or a pretext theory.” Id. That is to say, if the case proceeds to trial, Plaintiff “could
ultimately prevail on her disparate treatment claim by proving that her status as a woman was
either a ‘motivating’ or ‘determinative’ factor in [the] adverse employment action against her.”
Id. But for the purposes of surviving a motion to dismiss, “it is enough for [Plaintiff] to allege
sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims”
– i.e., that she was discriminated against because of her gender. Id.
Since Plaintiff resigned from her job, the Court must also take note of what she will
eventually have to prove to establish that her resignation amounted to a constructive discharge.
Our Court of Appeals employs “an objective test to determine whether an employee can recover
on a claim of constructive discharge”: the plaintiff must prove “that the employer permitted
conditions so unpleasant or difficult that a reasonable person would have felt compelled to
resign.” Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167 (3d Cir. 2001). Several factors are
relevant in making this determination, including whether the plaintiff (1) was threatened with
discharge; (2) was encouraged to resign; (3) was demoted or suffered a reduction in pay or
benefits; (4) was involuntarily transferred to a less desirable position; (5) was given altered job
responsibilities; and (6) began receiving unsatisfactory job evaluations. Clowes v. Allegheny
Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993).
Now, the Court must “identify those allegations that, being merely conclusory, are not

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entitled to the presumption of truth.” Connelly, 809 F.3d at 789. “[T]he clearest indication that an
allegation is conclusory and unworthy of weight . . . is that it embodies a legal point.” Id. Of
course, “‘some allegations, while not stating ultimate legal conclusions, are nevertheless so
threadbare or speculative that they fail to cross the line between the conclusory and the factual,’”
and so are also not entitled to any weight in the analysis. Id. (quoting Peñalbert–Rosa v.
Fortuño–Burset, 631 F.3d 592, 595 (1st Cir. 2011)). On the other hand, “allegations of historical
fact . . . are assumed to be true even if ‘unrealistic or nonsensical,’ ‘chimerical,’ or
‘extravagantly fanciful.’” Id.
Although Plaintiff claims that Defendant has an “unwritten policy of treating female
employees who file protection from abuse complaints differently from male employees,” Am.
Compl. ¶ 7, and that “[i]t is the policy of the Defendant to do nothing to male employees who
file for protection from abuse, but female employees are pressured to either drops the charges, or
to quit[,]” id. ¶ 8, she has not pled any facts to support these assertions. In other words, Plaintiff
has not pled anything about any incidents when a male employee obtained a PFA order and
received treatment different from that which Plaintiff allegedly received. Instead, she only
alleges facts regarding her own isolated experience with Defendant. Thus, Plaintiff’s allegations
regarding Defendant’s alleged “unwritten policy” are conclusory and must be disregarded. The
same goes for Plaintiff’s allegation that “[i]n violation of Title VII of the Civil Rights Act, as
amended, Defendant implemented its policy in the following manner to the Plaintiff, because she
was a female, and not to similarly situated males.” Id. ¶ 9. The following allegations are also
conclusory and not entitled to the presumption of truth: Defendant made “Plaintiff’s job
impossible for her to perform” and criticized her for things “for which males similarly situated
were not being criticized,” id. ¶ 9(B); Defendant did not raise complaints about “inconsequential

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matters” with male employees, Id. ¶ 9(C); Defendant acted “with the specific intent of forcing
the Plaintiff to quit her job[,]” id. ¶ 9(D); “[b]ecause of the actions taken above against the
Plaintiff because she was a female who had filed a protection from abuse order against a fellow
employee, actions not taken against male employees who filed for protection from abuse, and
actions not taken prior to filing the protection from abuse action, the Plaintiff felt compelled to
quit her job[,]” id. ¶ 10; and Defendant’s actions “caused the Plaintiff distress, embarrassment,
and emotional harm[,]” id. ¶ 11.
Finally, the Court must assess whether Plaintiff’s non-conclusory allegations are enough
to state a claim under Title VII. As it did with regard to Plaintiff’s first Complaint, the Court will
assume that Plaintiff has adequately pled that her resignation amounted to a constructive
discharge. However, when the aforementioned conclusory allegations are cast aside, the
remaining allegations do not give rise to a reasonable expectation that discovery will reveal
evidence that any of the alleged actions prior to Plaintiff’s resignation were taken because she is
a woman. As already noted, Plaintiff has offered nothing in the way of facts to support her claim
that male employees who obtain PFA orders are treated more favorably than female employees
who do so. Nor has she pled any facts to support her claim that similarly situated men were not
criticized for things for which she was criticized; she has not even attempted to identify one
similarly situated male employee to attempt to buttress her claim.2 See Finn v. Porter’s
Pharmacy, No. CIV.A. 15-661, 2015 WL 5098657, at *3 (W.D. Pa. Aug. 31, 2015) (concluding
that the plaintiff failed to state a claim because she did not allege “what other employees were
2.
The Court recognizes that Plaintiff “was not required to plead comparator evidence to support an inference
of discrimination.” Golod v. Bank of Am. Corp., 403 F. App’x 699, 703 n.2 (3d Cir. 2010). As the Court of Appeals
has explained, “[s]uch an inference could be supported in a number of ways, including, but not limited to,
comparator evidence, evidence of similar [sex] discrimination of other employees, or direct evidence of
discrimination from statements or actions by her supervisors suggesting [gender-based] animus.” Id. The Court
focuses on the lack of comparators only because Plaintiff has clearly attempted to bring her claim within this
framework by suggesting that unidentified male employees who obtained PFA orders were not treated in the same
manner that she was allegedly treated.

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treated more favorably . . ., when or by whom”). In addition, it is still not possible to infer from
the facts alleged that Defendant treated the male employee against whom Plaintiff obtained the
PFA order more favorably than it treated Plaintiff. Cf. Artz v. Cont’l Cas. Co., 720 F. Supp. 2d
706, 714 (E.D. Pa. 2010) (holding that the plaintiff stated a discrimination claim where she
alleged that a male co-worker who assaulted her was allowed to return to the workplace while
she was told that she “could stay, quit, or move to a different floor” and her co-worker was not
given the same ultimatum). Even assuming that the actions were taken because Plaintiff sought
and obtained the PFA order, this simply does not, without more, amount to sex discrimination
under Title VII. Therefore, Defendant’s motion to dismiss will be granted.
III.

Conclusion
Plaintiff has been given two opportunities to plead a claim for which relief can be

granted. She has failed both times. Accordingly, for the reasons hereinabove stated,
DEFENDANT’S

MOTION

TO

DISMISS

PLAINTIFF’S

AMENDED

COMPLAINT

PURSUANT TO FED.R.CIV.P. 12(b)(6) (ECF No. 9) will be GRANTED, and this case will be
DISMISSED WITH PREJUDICE. An appropriate order follows.
McVerry, S.J.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BILLIE JO JOHNS,
Plaintiff,
v.
ASMC AMBULANCE SERVICE
MANAGEMENT CORPORATION,
Defendant.

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) 2:16-cv-36
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ORDER OF COURT
AND NOW, this 29th day of March, 2016, in accordance with the foregoing
Memorandum Opinion, it is ORDERED, ADJUDGED, and DECREED that DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT PURSUANT TO
FED.R.CIV.P. 12(b)(6) (ECF No. 9) is hereby GRANTED, and this case is DISMISSED
WITH PREJUDICE. Accordingly, the Clerk of Courts shall docket this case CLOSED.

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

Michael N. Vaporis, Esquire
Email: [e-mail]
Terri Imbarlina Patak, Esquire
Email: [e-mail]