Robinson v. Hertrich Family of Automobile Dealerships, Inc.
1:24-cv-00653
D. Del.Jan 8, 2026Check TreatmentDocket
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Pastor Jarvis Robinson,
Plaintiff,
V. Civil Action No. 24-653-CFC
Hertrich Family of Automobile
Dealerships, Inc.; Hertrich of New
Castle, Inc.; Joshua Figueroa-Sierra;
Albert Guckes, Jr.,
Defendants.
Patrick C. Gallagher, JACOBS & CRUMPLAR, P.A., New Castle, Delaware;
Ashley A. Bosche and Robin R. Cockey, COCKEY, BRENNAN & MALONEY,
PC, Salisbury, Maryland
Counsel for Robinson
Michele D. Allen and Ashley C. Azato, ALLEN & ASSOCIATES, Wilmington,
Delaware □
Counsel for Defendants
MEMORANDUM OPINION
January 8, 2026
Wilmington, Delaware
rwcars
HIEF JUDGE
Pastor Jarvis Robinson has sued Hertrich Family of Automobile Dealerships,
Inc. (Hertrich Family), its subsidiary Hertrich of New Castle, Inc. (Hertrich), and
Hertrich employees Joshua Figueroa-Sierra and Albert Guckes, Jr. D.I. 31. The
operative Amended Complaint (Complaint) has four counts. Count I alleges that
Hertrich Family and Hertrich engaged in racial discrimination and harassment in
violation of the Delaware Discrimination in Employment Act (DDEA). D.I. 31
36-40. Count II alleges that Hertrich Family and Hertrich unlawfully retaliated
against Robinson in violation of the DDEA. D.I. 31 §§ 41-44. Count III alleges
that all four Defendants engaged in racial discrimination in the making and
enforcement of Robinson’s employment contract in violation of 42 U.S.C. § 1981.
31 99 45-50. Count IV alleges that all four Defendants unlawfully retaliated
against Robinson in violation of § 1981. D.I. 31 9§ 51-53.
Pending before me is Defendants’ motion pursuant to Federal Rule of Civil '
Procedure 12(b)(6) to dismiss the Complaint. D.I. 32.!
' Defendants had originally also sought dismissal pursuant to Rule 12(b)(5) for
insufficient service. D.I. 33 at 4-5. But as they acknowledged in their reply brief,
D.I. 40 at 1, service was effectuated and thus the motion is moot insofar as it is
based on Rule 12(b)(5). I will therefore deny the motion as moot insofar as it is
brought pursuant to Rule 12(b)(5).
I.
The following factual allegations from the Complaint are assumed to be true
and viewed in the light most favorable to Robinson for purposes of the pending
motion. See Umland v. PLANCO Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008).
In December 2022, Robinson, who is black, began working as a senior
maintenance crew member for Hertrich. D.I. 31 410. The events giving rise to
this case began several months later, in February 2023, when Robinson approached
Hertrich’s General Manager Michael McErlean and Regional Vice President
Robert Darr. D.I. 31 § 14. Robinson alleges that when Darr greeted him,
McErlean remarked about Robinson, “Don’t mind him, he’s just maintenance.”
DI. 31 4 14.
About a week later, on March 2, 2023, Robinson approached McErlean
again, this time to let him know he was taking a service truck for refueling. D.I. 31
4 15. According to Robinson, McErlean shouted at Robinson in front of customers
and other employees, telling Robinson, “when I call you, you answer your
motherfucking phone!” D.I. 31 4 15. Robinson reported this incident to his
supervisor, Defendant Joshua Figueroa-Sierra, who told him the incident would be
investigated. D.I. 31 4 16. Figueroa-Sierra subsequently held a meeting that both
Robinson and McErlean attended. D.I. 31 917. McErlean “was made to
apologize” for the incident at the meeting. D.J. 31 417. Also, during the meeting,
Robinson expressed “his belief that, because he is Black, he would have been fired
if [his and McErlean’s] roles had been reversed.” D.I. 31 § 17.
About a month after this incident, on April 3, 2023, Robinson hired a
contractor to service one of Hertrich’s flagpoles. D.I. 31 § 18. According to
Robinson, while the contractor was working, another Hertrich General Manager,
Craig Munholland, “scream[ed] and curs[ed] [at Robinson] and demanded [that] he
tell the contractor to move his vehicle.” D.I. 31 418. After the contractor left,
Robinson reported the incident to Figueroa-Sierra and “expressed additional
concerns that Mr. Munholland and Mr. McErlean were trying to micromanage him
and undermine his job performance in retaliation for the complaint he raised
against Mr. McErlean.” D.I. 31 9 19.
Fast forward to April 26, 2023. Robinson alleges that at this time
Figueroa-Sierra accused him of purchasing safety cones without permission, even
though McErlean had told Robinson the cones were necessary for a project.
D.I. 31 9 20, 21. Figueroa-Sierra instructed Robinson to return the cones and told
him that he was no longer allowed to make purchases without first obtaining
express permission from a supervisor. D.I. 31 421.
That same day, Robinson filed an internal grievance against McErlean and
Munholland and cited the incidents from March 2nd, April 3rd, and earlier that
day. D.I. 31 § 23. Robinson stated on the complaint forms that he “believed he
was being micromanaged and undermined by the two men on the basis of his race
and in retaliation for his previous complaints regarding their treatment of him to
Mr. Figueroa[-Sierra].” D.I. 31923. The next day, April 27, 2023, Hertrich’s
Assistant Director of Human Resources, April Tucker, interviewed Robinson about
his complaints. D.I. 31 § 25. She informed Robinson at the conclusion of the
interview that she would be meeting with other human resources officials to
evaluate his complaints. D.I. 31 § 25. Tucker followed up with Robinson on
May 1, 2023, and informed him that McErlean and Munholland had been
disciplined. D.I. 31 § 26.
A little more than two months later, on July 3, 2023, Figueroa-Sierra
contacted Robinson and accused him of improperly installing a floor-mounted
electrical cover plate. D.I. 31 927. Robinson maintains that he was not involved
in the installation of the cover plate and that it would have been improper for him
to install the plate because he is not a licensed electrician. D.I. 31 § 27.
Two days later, on July 5, 2023, Robinson attended a meeting with
Figueroa-Sierra, Darr, and Defendant Albert Guckes, Jr., Hertrich’s Director of
Facilities and Information Technology. D.I. 31 9, 28. During the meeting,
Figueroa-Sierra attempted to place Robinson on an Employee Improvement Plan
(EIP) for his “substandard work” related to the July 3rd cover plate incident.
31 4 28. Robinson refused to sign the EIP, denied his involvement with the
installation of the cover plate, and expressed his belief that Figueroa-Sierra was
trying to humiliate him and “set him up.” D.I. 31 § 28.
A few weeks later, on July 24, 2023, Hertrich Human Resources Director
Ann French requested that Robinson attend a meeting with her, Figueroa-Sierra,
and Guckes. D.I. 31 431. Robinson asked if his attorney could attend the
meeting, “citing his previous dissatisfaction with Hertrich’s responses to his
complaints and his fears that he was being wrongfully targeted.” D.I. 31 431.
French denied Robinson’s request and explained that the meeting was “internal.”
D.I. 31 § 31. In response, Robinson refused to attend the meeting. D.I. 31 4 32.
He also communicated his belief that he was being targeted for his internal
grievance and being punished “more harshly because of his race.” D.I. 31 § 32.
Soon after, Guckes terminated Robinson based on his refusal to comply with the
July Sth EIP, his failure to attend EIP meetings, and his substandard work
performance. D.I. 31 § 33.
Il.
“Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting
all well-pleaded allegations in the complaint as true and viewing them in the light
most favorable to the plaintiff, a court finds that plaintiff's claims lack facial
plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84(3d Cir. 2011). Detailed factual allegations are not required, but the complaint must include more than mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly,550 U.S. 544, 555
(2007) (citation omitted). A plaintiff must detail “enough facts to raise a reasonable expectation that discovery will reveal evidence of” each necessary element of the claims alleged in the complaint. Phillips v. County of Allegheny,515 F.3d 224, 234
(3d Cir. 2008) (quoting Twombly,550 U.S. at 556
).
A.
First, I address Defendants’ arguments to dismiss Count I. Count I alleges
that Hertrich Family and Hertrich (i) engaged in racial discrimination/harassment
and (ii) created a hostile work environment in violation of the DDEA. D.I. 31
3640.
I,
Robinson alleges in Count I that he was subjected to racial harassment and
discrimination in violation of the DDEA because “Messrs. McErlean, Munholland,
and Figueroa[-Sierra] engaged in a persistent severely hostile course of conduct
when they verbally assaulted and belittled [him] in front of employees and
customers, micromanaged his job duties, and falsely accused him of poor work
performance and insubordination.” D.I. 31 937. Both sides agree that to prevail
on this claim, Robinson would have to show: (1) he is a member of a protected
class; (2) he was qualified for the position he sought to attain or retain; (3) he
suffered an adverse employment action; and (4) the action occurred under
circumstances that could give rise to an inference of intentional discrimination.
D.I. 33 at 6; D.I. 37 at 17. The two sides dispute whether Robinson has plausibly
alleged the fourth element—.e., that the adverse employment action occurred
under circumstances that could give rise to an inference of intentional
discrimination. See, e.g., D.I. 37 at 17.
In determining whether Robinson has plausibly alleged circumstances that
give rise to an inference of discrimination, I look to Title VII cases, as Delaware
courts have said those cases are instructive in evaluating DDEA claims because the
statutes’ language is substantially similar. See, e.g., Wagenhoffjer v. Visionquest
Ltd, 2016 WL 3947952, at *3 (Del. Super. Ct. July 14, 2016). A plaintiff can support an inference of discrimination in Title VII cases “in a number of ways, including, but not limited to, comparator evidence, evidence of similar racial discrimination of other employees, or direct evidence of discrimination from statements or actions by her supervisors suggesting racial animus.” Golod v. Bank of Am. Corp.,403 F. App’x 699
, 702 n.2 (3d Cir. 2010).
Robinson says that “racial animus may be inferred when actions of white
employees go unpunished while similar actions of black employees are punished”
and that such an inference is reasonable here because Figueroa-Sierra, “who is
Hispanic, punished . . . Robinson, who is black, for improperly installing a cover
plate,” even though “Robinson had nothing to do with the installation of the cover
plate while Figueroa[-Sierra] was responsible for overseeing its installation.”
D.I. 37 at 18-19. As best I can tell, Robinson is arguing that Figueroa-Sierra is a
nonblack comparator employee who was treated more favorably.
“An inference of discrimination may arise” based on comparator evidence—
that is, if “similarly situated employees of a different race received more lenient
treatment than that afforded plaintiff.” See Ewell v. NBA Props., Inc., 94 F. Supp.
3d 612, 624(D.N.J. 2015). Comparator employees must be similar in “all relevant respects” to the plaintiff. Opsatnik v. Norfolk S. Corp.,335 F. App’x 220
, 222-23 (3d Cir. 2009) (citation omitted). Relevant factors in making this determination “include, but are not limited to, whether the comparators ‘1) had the same job description, 2) were subject to the same standards, 3) were subject to the same supervisor, and 4) had comparable experience, education, and other qualifications.’” Taylor-Bray v. Del. Dep’t of Servs. for Child., Youth & Their Fams.,627 F. App’x 79, 83
(3d Cir. 2015) (citation omitted).
If Robinson is indeed trying to make a comparator argument about
Figueroa-Sierra, he fails because Figueroa-Sierra is not similarly situated in all
relevant aspects. Figueroa-Sierra is Robinson’s supervisor, D.I. 31 § 16, and thus,
the two do not have the same job description. Robinson has not alleged that the
two were subject to the same standards. See generally D.I. 31. Nor has he alleged
the two had the same supervisor or that they have comparable experience,
education, and other qualifications. See generally D.I. 31. Robinson has not
pointed to anything else that would suggest Figueroa-Sierra is similarly situated to
him. Robinson’s allegations related to Figueroa-Sierra, therefore, are not
comparator evidence that would give rise to an inference of discrimination.
Robinson next says that “it is reasonable to infer that an employee is being
subjected to unlawful discrimination when the[] [employee] [is] one of the only
members of a protected class and [is] singled out for surveillance and scrutiny by
[the employee’s] supervisor with no apparent relationship to the[] [employee’s] job
performance.” D.I. 37 at 18. Robinson says that such an inference is reasonable
here because he “was only one of two black employees at Hertrich,” “had just been
awarded a performance-based raise,” and “[m]ere weeks later, and once his white
supervisors began berating and demeaning him, [he] was told he needed a
supervisor’s permission to perform basic job duties,” such as to purchase cones.
D.I. 37 at 18. In making this argument, Robinson attempts to draw parallels
between this case and two Title VII cases in which the court said it was reasonable
to conclude that the plaintiff was discriminated against because of a protected
characteristic: Strothers v. City of Laurel, Md., 895 F.3d 317(4th Cir. 2018) and Ocheltree v. Scollon Productions, Inc.,335 F.3d 325
(4th Cir. 2003). D.I. 37 at 18.
Robinson says that “[l]ike the plaintiffs in Strothers and Ocheltree, it was entirely
reasonable for [him] to infer he was being singled out because of his race.” D.I. 37
at 18. Robinson’s appeals to Strothers and Ocheltree, however, are unavailing.
Start with Strothers. There, the court held that the plaintiff had “ample
reason to believe that she was being mistreated ‘because of’ her race” by her
supervisor. 895 F.3d at 329. The court reached that conclusion based on several
“considerations.” Jd. at 330. Specifically, the plaintiff's supervisor explicitly
stated she “wanted to hire someone of a different race.” /d. at 329. And according
to former employees, her supervisor did not like black people and, in the past, had
subjected black employees to differential treatment. /d. at 330. Against this
backdrop, the plaintiff “was also aware that she was the only black subordinate
employee and that she was the only one whom [her supervisor] chose to surveil
and scrutinize.” Jd. “Moreover, [the plaintiff] being selected for such scrutiny
apparently had nothing to do with her job performance, as [her supervisor] herself
acknowledged that [the plaintiff] did everything as instructed.” Jd.
Unlike the plaintiff in Strothers, Robinson has not alleged here facts from
which race-based discrimination could plausibly be inferred. Robinson does allege
that he received a performance-based raise before the events at issue, D.I. 31 4 10,
and that he was one of two black employees at Hertrich, D.I. 31 § 11. But these
allegations are not enough to justify an inference of discrimination, and there are
no circumstances alleged to have occurred before Robinson’s alleged mistreatment
10
that raise an inference of race-based discrimination. There is no allegation, for
instance, that Hertrich managers or employees do not like black people or that
Hertrich engaged in historical differential treatment of black employees. See
generally D.I. 31. There is also an absence of contemporaneous “considerations”
like those in Strothers. Robinson does not allege, for example, that the other black
employee at Hertrich was subjected to mistreatment or discrimination. See
generally D.I. 31. Nor is there any alleged statement injecting race into the
equation like the supervisor’s statement in Strothers that she wanted to hire
someone of a different race. See generally D.I. 31.
In Ocheltree, the court held that a reasonable jury could find that the
plaintiff was harassed in her workplace because of her sex. 335 F.3d at 332-33.
The court reached this conclusion in part because no male employee was subjected
to the “same embarrassment” as the plaintiff, the company’s only female
employee. Jd. at 332. The court also relied on the fact that much of the at-issue
conduct was “particularly offensive to women and was intended to provoke [the
plaintiff's] reaction as a woman.” Jd. Here, by contrast, Robinson does not allege
that the conduct he complains of was ever directed at any other black person, and
the conduct itself is offensive generally, not particularly offensive to black persons.
See generally D.I. 31. Telling a person to answer his “motherfucking phone,”
screaming at someone in front of his fellow employees and customers about where
11
a contractor’s vehicle is parked, and unfairly accusing an employee of ordering
cones without permission are all rude and inappropriate. But they are not
inherently or impliedly racial, and they do not without more suggest or connote
racial animus.
Finally, Robinson says that “when the operative pleading details specific
events where an employee was treated differently, identifies key supervisors by
race and company title, and identifies ‘adverse employment actions
notwithstanding satisfactory employment performances’, that pleading satisfies the
12(b)(6) standard.” D.I. 37 at 19 (citation omitted). In support of this proposition,
Robinson cites Keys v. Humana, Inc., 684 F.3d 605 (6th Cir. 2012). There, the
plaintiff alleged the defendant “had a pattern or practice of discrimination against
African American managers and professional staff in hiring, compensation,
promotion, discipline, and termination” and “detail[ed] several specific events in
each of those employment-action categories where . . . she was treated differently
than her Caucasian management counterparts.” /d. at 610. She also “identifie[d]
the key supervisors and other relevant persons by race and either name or company
title” and “allege[d] that [she] and other African Americans received specific
adverse employment actions notwithstanding satisfactory employment
performances.” Jd. The court held that her complaint, therefore, “easily state[d] a
plausible claim” of racial discrimination. /d.
12
Like the plaintiff in Keys, Robinson alleges here the race and titles of the
employees involved. See generally D.I. 31. But that is where the similarities
between Keys and this case end. And simply alleging the race and title of the
employees involved is not (and cannot be) enough to raise an inference of
discrimination. Unlike the plaintiff in Keys, Robinson has not alleged a pattern or
practice of discrimination. See generally D.I. 31. He has not detailed events in
which he was treated differently than employees of other races. See generally
D.I. 31. Nor has he shown that he or other black employees suffered specific
adverse employment actions despite satisfactory employment performance. See
generally D.I. 31. Robinson does not even mention other black employees
suffering adverse employment actions in the Complaint. See generally D.I. 31.
And as for his own employment record, Robinson’s Complaint shows that his
supervisor, Figueroa-Sierra, took issue with his employment performance, as
evidenced by the cover plate and cone incidents. D.I. 31 §§ 20, 27.
In sum, then, Robinson has not raised an inference of discrimination based
on “comparator evidence, evidence of similar racial discrimination of other
employees, . . . direct evidence of discrimination from statements or actions by
[his] supervisors suggesting racial animus,” or any other means. Golod, 403
F. App’x at 702 n.2. What he has alleged is that he was subjected to rude, unkind,
and inappropriate treatment. But discrimination laws are not a general civility
13
code. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Accordingly, I will dismiss Robinson’s racial discrimination claim in Count I.
Robinson also alleges in Count I that Defendants Hertrich Family and
Hertrich subjected him to a hostile work environment in violation of the DDEA.
Specifically, Robinson alleges that:
Messrs. McErlean, Munholland, and Figueroa[-Sierra]
engaged in a persistent severely hostile course of conduct
when they verbally assaulted and belittled . .. Robinson in
front of employees and customers, micromanaged his job
duties, and falsely accused him of poor work performance
and insubordination. This persistent and severe
harassment altered the conditions of [his] employment and
created an abusive and hostile work environment.
D.I. 31 § 37.
To prevail on a hostile work environment claim under Title VII, Robinson
would have to show: (1) he suffered intentional discrimination because of his
status as a member of a protected class; (2) the discrimination was severe or
pervasive; (3) the discrimination detrimentally affected him; (4) the discrimination
would detrimentally affect a reasonable person in similar circumstances; and
(5) the existence of respondeat superior liability. See Mandel v. M & O Packaging
Corp., 706 F.3d 157, 167(3d Cir. 2013) (citation omitted). The same is true for a hostile work environment claim under the DDEA. See, e.g., Petrocelli v. DaimlerChrysler Corp.,2006 WL 733567
, at *4 (D. Del. Mar. 22, 2006) (“Since
14
claims of employment discrimination under the Delaware [Discrimination in
Employment] Act are analyzed in the same way as claims under Title VII, Giles v.
Family Court, 411 A.2d 599, 601-02 (Del.1980), the following analysis uses the
Title VII framework, and the conclusions apply equally to the claims of hostile
work environment and disparate treatment under the Delaware Act.”).
Defendants first argue that Robinson has not plausibly alleged the first
element of his claim: that he suffered intentional discrimination because of his
race. D.I. 33 at 11. To this, Robinson responds, “[A]s explained in the preceding
section [related to his racial discrimination claim], the Amended Complaint pleads
enough information to plausibly suggest the harassment was racially motivated.”
D.I. 37 at 20. But, as explained in the previous section of this Memorandum
Opinion, Robinson has failed to show that the mistreatment he suffered was
racially motivated. Pleading that he was one of two black employees and that he
worked at Hertrich without incident for three months before Defendants’ alleged
mistreatment—mistreatment that is not inherently or impliedly racial—is not (and
cannot be) enough.
But even if Robinson plausibly alleged the first element of his hostile work
environment claim, I would still dismiss his claim because he has failed to
plausibly allege the second required element: that the discrimination he faced was
severe or pervasive. In Title VII cases, conduct is severe or pervasive when it is
15
sufficient “to alter the conditions of [the employee’s] employment and create an
abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
67(1986) (citation and internal quotation marks omitted). This is a high bar. See Sousa v. Amazon.Com, Inc.,2022 WL 4548910
, at *2 (D. Del. Sept. 29, 2022) (Bibas, J., sitting by designation). Indeed, Robinson must show the mistreatment he complains about was “extreme.” See Faragher,524 U.S. at 788
. “To decide whether the conduct was extreme enough, we consider all the circumstances, including how frequent and severe it was and whether it was physical or verbal.” Sousa,2022 WL 4548910
, at *3 (citations omitted).
Robinson contends that “Hertrich’s conduct was frequent, severe,
humiliating, and unreasonably interfered with his work performance.” D.I. 37
at 20. In support of this assertion, Robinson says he “was degraded, yelled at, and
cursed at by McErlean and Munholland in front of coworkers and customers” and
that Figueroa-Sierra “falsely accused [him] of spending company money without
authorization [and] mishandling projects which were the responsibility of his
supervisors, instructed [him] to get permission from his supervisors to perform
basic job duties, and attempted to strongarm him into accepting unfounded
disciplinary measures.” D.I. 37 at 20 (citing D.I. 31 J 14-15, 18, 20-22, 27-28).
These alleged circumstances constitute neither severe nor pervasive
discriminatory treatment. Start with Robinson’s allegations related to McErlean
16
and Munholland “demeaning” or yelling at him. According to the Complaint,
Robinson was yelled at twice: once when he was told to get a contractor to move
his vehicle, D.J. 31 418, and once when McErlean told him to “answer [his]
motherfucking phone,” D.I. 31 § 15. He alleges he was “demeaned” a total of
three times: twice during the incidents in which he was yelled at and one other
time, when McErlean stated about Robinson, “Don’t mind him, he’s just
maintenance.” D.I. 31 § 14. These incidents are not “sufficiently continuous and
concerted” to be deemed pervasive. See Faragher, 524 U.S. at 787 n.1 (internal
quotation marks omitted). While rude and inappropriate, these incidents are also
not severe. They are, in sum, insufficient to alter the conditions of Robinson’s
employment and create an abusive working environment.
Robinson’s allegations related to Figueroa-Sierra also fall short, even when
combined with his allegations related to McErlean and Munholland. Robinson
alleges that Figueroa-Sierra falsely accused him of purchasing safety cones without
authorization, D.I. 31 § 20, and improperly installing a cover plate, D.I. 31 4 27.
Following the safety cone incident, Figueroa-Sierra also instructed Robinson to
seek permission from a supervisor before purchasing equipment going forward.
31 421. Robinson also alleges that Figueroa-Sierra “attempted to place [him]
on an Employee Improvement Plan (EIP), citing his allegedly ‘substandard work’”
related to the cover plate incident. D.I. 31 428. These incidents may have been
Ii?
uncomfortable, but they are routine workplace events that cannot be considered in
any sense extreme or severe. And because they were episodic, they were not
pervasive. See Sousa, 2022 WL 4548910, at *3.
Of course, I consider these incidents as a whole, not in isolation. See
Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir. 1999). And taken
together, I find that all these allegations do not add up to severe or pervasive
discrimination. Accordingly, I will dismiss Robinson’s hostile work environment
claim in Count I.
B.
I next address Defendants’ arguments to dismiss Count II. Count II alleges
that Hertrich Family and Hertrich engaged in unlawful retaliation in violation of
the DDEA. Specifically, Robinson alleges that:
Hertrich fired [him] because he complained of racial
discrimination. [His] April 26, 2023 complaint was based
upon an objectively reasonable belief that Messrs.
McErlean, Munholland, and Figueroa[-Sierra]’s verbal
assaults, micromanaging, and false accusations of poor
performance and insubordination constituted intentional
discrimination. Within a matter of weeks, Hertrich fired
.. . Robinson for allegedly poor work performance and his
refusal to cooperate with what was ostensibly their efforts
to harass him. In doing so, Defendants did not even
attempt to disguise the fact that ... Robinson’s
termination arose solely from his discrimination
complaint.
D.I. 31 § 42.
18
To prevail on a retaliation claim under Title VI, Robinson would have to
show: (1) he engaged in conduct protected by Title VII; (2) his employer took an
adverse action against him; and (3) there was a causal connection between his
participation in the protected activity and the adverse employment action. See
Moore v. City of Philadelphia, 461 F.3d 331, 340-41(3d Cir. 2006). “Retaliation claims under the DDEA ... should also be analyzed using the same framework.” Lehmann v. Aramark Healthcare Support Servs., LLC,630 F. Supp. 2d 388, 391
(D. Del. 2009).
The parties dispute whether Robinson has plausibly alleged he engaged in
protected activity by filing an internal grievance related to the March 2nd, April
3rd, and April 26th incidents. See, e.g., D.I. 33 at 15; D.I. 37 at 13. Robinson
must plausibly allege that when he filed the grievance, he held “an objectively
reasonable belief, in good faith, that the activity [he opposed] is unlawful under
[the DDEA].” See Moore, 461 F.3d at 341. The parties do not dispute that
Robinson believed in good faith that by filing his internal grievance he was
opposing race-based discrimination. Their dispute turns instead on whether his
belief was objectively reasonable.
Robinson alleges that he “was one of only two Black employees,” D.I. 31
11, and that before his internal grievance, he was degraded, yelled at, cursed at,
and accused of spending company money without permission, D.I. 31 94 14-15,
19
18, 20-22. Against this backdrop, Robinson says that “[a] reasonable person in
[his] shoes could conclude this was race-based” discrimination. D.I. 37 at 13. I
disagree. No reasonable person could believe that the incidents Robinson
complained about on April 26th—being told “when I call you, you answer your
motherfucking phone,” being screamed at and instructed to tell a contractor to
move his vehicle, and being accused of improperly purchasing safety cones
without permission—without more were race-based discrimination. They are, in
fact, entirely devoid of racial undertones. And to Robinson’s point about being
one of two black employees, that is also not enough for a reasonable person to
believe the three incidents in question (which, again, have no racial undertones)
were race-based discrimination. The implausibility of Robinson’s claim of
race-based discrimination is even clearer when one considers that Robinson does
not allege that any other black employee—past or present—was subject to similar
mistreatment.
These events are manifestly unpleasant and unprofessional. They do not,
however, plausibly suggest that Robinson was engaged in protected activity when
he filed internal grievances about them. Because it was not objectively reasonable
for Robinson to conclude he was engaged in protected activity when he filed his
April 26th internal grievance, I will dismiss Count II.
20
C.
Turning to Defendants’ arguments to dismiss Count III: This count alleges
that all Defendants engaged in racial discrimination in the making and enforcement
of Robinson’s employment contract in violation of § 1981. D.I. 31 §§ 45-50.
“To prevail [on a § 1981 racial discrimination claim,] a plaintiff must
initially plead and ultimately prove that, but for race, [he] would not have suffered
the loss of a legally protected right.” Comcast Corp. v. Nat'l Ass’n of Afr.
Am.-Owned Media, 589 U.S. 327, 341 (2020). In Count III, Robinson alleges
merely that “race was clearly a motivating factor” in his termination. D.I. 31 § 47
(emphasis added). That race was a motivating factor—potentially one of many—
in his firing does not amount to an allegation that Robinson would have suffered
the loss of a legally protected right but for his race. And without more, I must
dismiss Count II.
D.
Lastly, I address Defendants’ arguments to dismiss Count IV. Count IV
alleges all Defendants retaliated against Robinson for reporting racial
discrimination in violation of § 1981. D.I. 31 §§ 51-53. Specifically, Robinson
alleges that:
Hertrich fired [him] because he complained of racial
discrimination. [His] April 26, 2023 complaint was based
upon an objectively reasonable belief that Messrs.
McErlean, Munholland, and Figueroa[-Sierra]’s verbal
21
assaults, micromanaging, and false accusations of poor
performance and insubordination constituted intentional
discrimination. Within a matter of weeks, Hertrich fired
him for poor work performance. In doing so, Defendants
did not even attempt to disguise the fact that [his]
termination arose solely from his discrimination
complaint. Defendants acted in reckless disregard of [his]
federally protected rights.
D.I. 31 52.
Liability under § 1981 encompasses claims of retaliation. CBOCS West, Inc.
v. Humphries, 553 U.S. 442, 457(2008). “To establish a retaliation claim in violation of § 1981, a plaintiff must establish the following prima facie case: ‘(1) [he] engaged in [protected] activity ...; (2) the employer took an adverse employment action against [him]; and (3) there was a causal connection between [his] participation in the protected activity and the adverse employment action.’” Castleberry v. STI Grp.,863 F.3d 259, 267
(3d Cir. 2017) (quoting Moore,461 F.3d at 340-41
) (alterations in the original).
As with Count I, Defendants argue that “Robinson never engaged in
protected activity by reporting” the March 2nd, April 3rd, and April 26th incidents
and thus has failed to plausibly allege the first element of his claim. D.I. 33 at 20.
Here, too, I agree. Robinson did not hold an objectively reasonable belief that he
had been subjected to racial discrimination when he filed his internal grievance on
April 26th. See Castleberry, 863 F.3d at 267 (explaining that a § 1981 plaintiff
must have acted under “a good faith, reasonable belief” that he was reporting
22
unlawful conduct). The events he complained about in the grievance, though
unpleasant, are entirely disconnected from race. And Robinson has not given any
plausible reason why they amount to racial discrimination. Accordingly, he did
not engage in protected activity when he reported the incidents on April 26th. I
must, then, dismiss Count IV.
Il.
For the reasons stated above, I will dismiss Robinson’s Complaint (D.I. 31)
for failure to state a claim upon which relief can be granted.
The Court will issue an Order consistent with this Memorandum Opinion.
23