JASIM v. PORT AUTHORITY OF ALLEGHENY COUNTY

Filing 17

ORDER granting, in part, and denying, in part, 14 Defendant's Motion to Dismiss Plaintiff's First Amended Complaint (details more fully stated in said Order); that Defendant's Answer to Plaintiff's Amended Complaint is due 3/15/18. Signed by Judge Nora Barry Fischer on 3/1/18. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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SHATHA JASIM,
Plaintiff,
vs.
PORT AUTHORITY OF ALLEGHENY
COUNTY,
Defendant.

Civil Action No. 17-1317
Judge Nora Barry Fischer

ORDER OF COURT
AND NOW, this 1st day of March, 2018, upon consideration of Defendant Port Authority
of Allegheny County’s Motion to Dismiss for Failure to State a Claim (Docket No. [14]), and Brief
in Support, (Docket No. [15]), Plaintiff Shatha Jasim’s Response and Brief in Opposition, (Docket
Nos. [16]), and after reviewing the allegations in the Amended Complaint, (Docket No. [12]), in
light of the governing pleading standard, see, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d
Cir. 2016),
IT IS HEREBY ORDERED that the Port Authority’s Motion to Dismiss [14] is
GRANTED, IN PART and DENIED, IN PART, as follows:
1. The Port Authority’s Motion is DENIED, without prejudice, to the extent it seeks
dismissal of Count One for Discrimination under Title VII, Count Two for Disability
Discrimination under ADA, Count Three for Violation of the Rehabilitation Act, Count
Six for Discrimination under PHRA,1 and Count Seven for Violation of FMLA. In this
Court’s opinion, the amended complaint alleges facts that, when taken as true and

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Jasim misnumbered the counts in her Amended Complaint, resulting in there being two Count

Sixes.

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construed in a light most favorable to Jasim, are sufficient to raise a reasonable
expectation that discovery will uncover proof as to each of these claims. See, e.g.,
Connelly, 809 F.3d at 789.
2. The Port Authority’s Motion is GRANTED to the extent it seeks dismissal of Count
Four for violation of 42 U.S.C. § 1983. Regardless of whether the continuing violation
theory applies to toll the limitations period (see Docket Nos. 15 at 15-16; 16 at 10-11),
the Amended Complaint does not plead the existence of a custom or policy which
caused Jasim’s alleged constitutional deprivation (i.e., violation of her rights to equal
protection under the Fourteenth Amendment) as is required for her to maintain a § 1983
claim against the Port Authority. See Monell v. Dep’t of Social Servs., 436 U.S. 658,
690, 694 (1978); McTernan v. City of York, Pa., 564 F.3d 636, 658 (3d Cir. 2009) (the
plaintiff must “identify a custom or policy, and specify what that custom or policy
was”). Contrary to her conclusory allegation that she “has no adequate remedy at law
to redress these violations of her constitutional rights” (Docket No. 12 at ¶ 82), it is
clear that her § 1983 claim is a "pure" employment discrimination claim, which is not
cognizable under the circumstances. See Williams v. Pa. Human Relations Comm’n,
870 F.3d 294, 299-300 (3d Cir. 2017) (“Allowing pure Title VII and ADA claims under
§ 1983 would thwart Congress's carefully crafted administrative scheme... Title VII
and ADA statutory rights cannot be vindicated through § 1983.”). Since this pleading
deficiency cannot be cured by amendment, the Court denies Jasim leave to amend her
§ 1983 claim. See Shane v. Fauver, 213 F.3d 113, 115-16 (3d Cir. 2000).

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3. The Port Authority’s Motion is GRANTED to the extent it seeks dismissal of Count
Six for Discrimination under Title VI.2 The Amended Complaint pleads no facts that
the primary purpose the Port Authority receives federal funding is for employment.
Rather, it merely alleges that the Port Authority operates at a loss each year and that it
could not maintain its employment levels without the federal funding. (Docket No. 12
at ¶ 88). Because this is insufficient to raise a reasonable expectation that discovery
will uncover evidence of a logical nexus between the federal funds received by the Port
Authority and the alleged employment discrimination, the Amended Complaint fails to
state a claim under Title VI as a matter of law. See Johnson v. Cmty. Coll. of Allegheny
County, 566 F.Supp.2d 405, 457-59 (W.D. Pa. 2008) (Conti, J.) (no Title VI violation
where the primary purpose of the federal funding was education, not employment);
Waris v. HCR Manor Care, 2009 WL 330990, *19 (E.D. Pa. 2009) (no Title VI
violation “[b]ecause Medicare and Medicaid funds do not have the primary purpose of
employing home health care”).
4. The Port Authority’s Motion is DENIED, without prejudice, to the extent that it seeks
dismissal of any claims for “unfair work conditions” as being barred for failure to
comply with the exhaustion procedures in the CBA. Failure to exhaust administrative
remedies under a CBA is an affirmative defense. Wright v. Univ. Maritime Svc. Corp.
525 U.S. 70, 75 (1998). Here, this affirmative defense is not a basis for dismissal at
the pleading stage because it is not apparent on the face of the Amended Complaint and
the Port Authority relies on matters outside the pleadings in making this argument.
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

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See note 1.

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5. The Port Authority’s Motion is DENIED, without prejudice, to the extent it seeks to
bar Jasim from recovering for “physical injuries” relating to anxiety attacks. The
Amended Complaint alleges that Jasim has “suffered repeated anxiety attacks that have
required hospitalization” due to the alleged discrimination. (Docket No. 12 at ¶¶ 4546). The Port Authority assumes, without any analysis, that these allegations are
indistinguishable from physical workplace injuries which are exclusively covered by
Pennsylvania Workers’ Compensation Act. (Docket No. 15 at 18). Yet, this argument
entirely ignores that if Jasim is successful on her claims at trial, she will be entitled to
compensatory damages, which includes compensation for emotional pain, suffering,
inconvenience, enjoyment of life, and other nonpecuniary losses. See, e.g., Landgraf
v. USI Film Prod., 511 U.S. 244, 253 (1994); Gucker v. U.S. Steel Corp., 212 F.Supp.3d
549, 561 (W.D. Pa. 2016) (Fischer, J.) (“The PHRA does not have a statutory cap for
compensatory damages.”).
6. The Port Authority’s Motion is DENIED, without prejudice, to the extent it seeks
dismissal of Jasim’s “claim” under 42 U.S.C. § 1988. As the Amended Complaint
clearly does not assert a claim under § 1988, this argument is meritless. In the same
vein, the Court rejects the Port Authority’s request for attorney’s fees under § 1988
against Jasim because it improperly requests this relief in its brief, Fed.R.Civ.P. 7(b),
and it is not a “prevailing party,” as the case remains ongoing. 42 U.S.C. § 1988.
IT IS FURTHER ORDERED that the Port Authority shall file its Answer to Jasim’s
Amended Complaint by March 15, 2018.
/s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record.
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