RICHARD A. WILSON v. COLUMBIA GAS OF PENNSYLVANIA and DARRYL WARGO
Civil Action No. 2:22-776
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
June 7, 2023
Magistrate Judge Dodge
Plaintiff Richard A. Wilson (“Wilson“) brings this action under a variety of civil rights statutes, alleging that he was discriminated against based on his race, national origin and disability. Further, he alleges that he was subjected to retaliation for submitting complaints about discrimination, including being subjected to a hostile work environment, being forced to take a fitness for duty examination and then being placed on leave, culminating in the termination of his employment. Named as defendants are his former employer, Columbia Gas of Pennsylvania (“Columbia Gas“) and former supervisor, Darryl Wargo (“Wargo“).
Pending before the Court is Defendants’ partial motion to dismiss. For the reasons that follow, their motion will be granted in part and denied in part.1
I. Relevant Procedural History
Wilson commenced this action in May 2022 and later filed an Amended Complaint on October 21, 2022 (ECF No. 28). Federal question jurisdiction is based upon the federal civil rights claims asserted,
The Amended Complaint includes eight counts: racial and national origin disparate treatment, hostile work environment and retaliation in violation of
Pursuant to a stipulation filed on November 10, 2022 (ECF No. 33), Wilson‘s claims against Wargo are limited to a cause of action for hostile work environment in violation of Section 1981 (Count I) and aiding and abetting a hostile work environment in violation of the PHRA (Count IX). In addition, the parties stipulated that the adverse job actions being challenged in the Amended Complaint under either a theory of retaliation under Section 1981 (Count I), Title VII (Count III), the ADA (Count V) and the PHRA (Count VIII); or disparate treatment under Section 1981 (Count I), Title VII (Count II), the ADA (Count IV) and the PHRA (Count VII) are limited to Wilson “being placed on leave in or around February of 2021 and his discharge and/or constructive discharge in or around September of 2021, without prejudice to
On November 11, 2022, Defendants filed a partial motion to dismiss (ECF No. 38),3 which has been fully briefed (ECF Nos. 39, 44).
II. Factual Background4
A. Wilson‘s Employment by and Issues with Columbia Gas
Wilson, who was born and raised in Jamaica, moved to Pennsylvania in 2002 and began working for Columbia Gas in 2008 as a Service Technician. Sometime around 2013, Wargo became his supervisor. Wargo was promoted to the position of manager in 2019. According to Wilson, he was the only African American and only Jamaican working for Columbia Gas. (Am. Compl. ¶¶ 5-7, 22, 25-29.)
According to Wilson, he maintained perfect attendance and skillfully performed his job during his employment. His annual performance reviews were always satisfactory and he earned annual incentives, bonuses and raises throughout his employment. He also volunteered his time to give back to the community and received various complimentary letters and phone calls from satisfied customers. (Id. ¶¶ 30-35.)
Beginning sometime around 2008, Wilson was singled out based on his race and national origin, was subjected to a hostile work environment and was treated differently than similarly
- He was asked whether Jamaican people live in stick houses and was asked to take off his hat so a coworker could defecate in it. (Id. ¶¶ 42-43.)
- When he wore collared shirts, he was subjected to ridicule by coworkers telling him that he was “trying to look like a boss.” (Id. ¶ 45.)
- He was sent to low-income, high crime neighborhoods, even at night, and was referred to “the black guy” throughout his employment. (Id. ¶¶ 47-52, 66-67.)
- When he made reasonable requests to be relieved from a shift as soon as possible after it ended, he was accused of refusing to work. Similarly situated white coworkers made these same requests and were not subjected to abusive and harassing comments in response. (Id. ¶¶ 110-14.)
- He was assigned “emergency jobs” at the very end of his shift, which were work assignments that Caucasian employees did not want to do. (Id. ¶¶ 115-20.)
- Wilson was not invited to a celebration held by Columbia Gas to award and recognize employees with perfect attendance even though he had perfect attendance throughout his career. (Id. ¶¶ 128-31; ECF No. 44 Ex. A at 17.)
- While Wilson was on a service call, a property owner subjected him to abusive, threatening, insulting conduct and comments and told him that if he returned to the property, the owner would have him “canned.” While he reported this incident to several supervisors and they initially agreed that he should not be sent back to that address, Columbia Gas nonetheless sent him back to the address multiple times between 2014 and 2020, resulting in additional abuse and threats
of violence which he reported. (Am. Compl. ¶¶ 139-55; ECF No. 44 Ex. A at 17-18.) - The company van which he was assigned had issues with the door-locking mechanism which he reported. However, Columbia Gas refused to have the matter fixed. Similarly situated Caucasian employees who had problems with their work vehicles were not subjected to similar treatment. (Am. Compl. ¶¶ 157-59.)
- When he reported problems with his company computer and smart phone that he needed in order to perform his job, Columbia Gas refused to help or assist him in resolving them. (Id. ¶¶ 160-61.)
- Columbia Gas also refused to cover the cost of COVID testing that it required for employees who were out to return to work. (Id. ¶ 162.)
Wilson also alleges improper conduct by Wargo. Wargo suspended him for five days without pay based on a false charge that he refused to respond to an emergency call. Wilson reported Wargo‘s unfair treatment and Columbia Gas returned four of the days for which he had been suspended. However, he still lost one day of pay and no action was taken to deal with Wargo‘s false charge. (Id. ¶¶ 104-07.)
In addition, Wargo “constantly subjected [him] to abusive and condescending words and actions by sneering at [him] and refusing to even acknowledge [Wilson] when [he] spoke.” (Id. ¶¶ 98-99, 133-35.) In August 2012, Wargo intentionally canceled Wilson‘s company credit card so that he could not make purchases related to his employment. Several years later, Wargo disconnected Wilson‘s company ID badge and refused to address the problem when Wilson reported it to other supervisors, who also refused to address it. (Id. ¶¶ 136-37; ECF No. 44 Ex. A
Beginning in 2012 and continuing thereafter, Wilson reported the discrimination and harassment in the workplace multiple times to Wargo and a number of others, including the head of Human Resources. (Id. ¶¶ 54-61.) He was called “stupid” when he reported the harassment he faced and no one took any action to investigate or correct the abusive and discriminatory work environment he reported. Rather, the incidents got worse. (Id. ¶¶ 48-49, 62-65, 69-71.)
B. Alleged Medical Issues
In January 2021, Wilson reported to his supervisor, Randy Pappa, that he was concerned that his company phone was not working and that he thought that he was being followed by someone at the direction of Columbia Gas. Several hours later, Wilson was asked to join a telephone conference with various Columbia Gas and union personnel. The head of Human Resources stated that Wilson was “schizophrenic” and was being sent home for two weeks to get a medical exam. (ECF No. 44 Ex. A at 24-25.)5 See also Am. Compl. ¶¶ 183-84 (alleging that it was Pappa who first suggested the idea of the medical exam). Wilson objected to the need for a medical evaluation. (Am. Compl. ¶ 175.)
Wilson was contacted on February 3, 2021 by the Medical Consultant Network and was advised that he would have to undergo a medical evaluation before he could return to work. (Id. ¶ 181.) Wilson attended an evaluation by Dr. Robert Wettstein on February 11, 2021. He alleges that Dr. Wettstein was selected by Columbia Gas in order to prepare an evaluation that resulted in him being subjected to further discrimination. (Id. ¶¶ 185-87; ECF No. 44 Ex. A at 25.) Dr. Wettstein concluded that he was not “fit for duty” even though no contact was made with his
Wilson then arranged a meeting with Dr. Joshua Riley-Graham on April 12, 2021, who conducted an evaluation and concluded that Wilson might suffer from slight anxiety caused by the conduct to which he had been subjected at Columbia Gas. Although this conclusion was provided to Columbia Gas, it failed to permit him to return to work. (Am. Compl. ¶¶ 194-98.)6 Rather, Columbia Gas insisted that Dr. Graham and Dr. Wettstein should agree on a third doctor who would perform another evaluation before Wilson would be allowed to return to work. (Id. ¶ 199.) Columbia Gas refused to pay Wilson during his suspension. (Id. ¶¶ 200, 202.)
On July 17, 2021, Wilson filed a Charge of Discrimination with the EEOC which was dual filed with the Pennsylvania Human Relations Commission (PHRC). (Id. ¶¶ 16-17, 84, 86.) Wilson later advised the EEOC that, because of the financial hardship caused by being placed on unpaid leave, he “found employment elsewhere and resigned from Columbia Gas effective September 3, 2021.” (ECF No. 44 Ex. A at 1.)7
III. Discussion
A. Standard of Review
Under
As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a
In ruling on a
Wilson contends that it is not appropriate to examine these documents in resolving the motion to dismiss. He notes that Defendants submitted only part of his EEOC Charge. Further, neither he nor his counsel had the opportunity to review Dr. Wettstein‘s report and Dr. Graham‘s report is not described in any detail in the Amended Complaint. At the same time, however, he has submitted other documents that he sent to the EEOC that he characterizes as the remainder of his EEOC Charge. (ECF No. 44 Ex. A.)
Although a plaintiff‘s EEOC submissions are not “central to” his claims, a number of courts have permitted defendants to attach them to a motion to dismiss when the plaintiff cites them in the complaint and does not dispute their authenticity. See Lesoon v. Dejoy, 2020 WL 7264067, at *1 (W.D. Pa. Dec. 10, 2020); McCall v. Butler Health Sys./Butler Mem‘l Hosp., 2013 WL 6253417, at *3 (W.D. Pa. Dec. 4, 2013). See also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256 (3d Cir. 2006) (examining EEOC charge on a motion to dismiss to determine if the plaintiff verified it).
Here, Wilson contends that because Defendants have submitted only part of the EEOC document, it is incomplete and misleading. At the same time, he has submitted additional evidence to counter Defendants’ interpretation of the document they cite. Thus, the Court concludes that it can review all of the documentation that Wilson provided to the EEOC without converting the motion to dismiss into a motion for summary judgment.
B. Claims under Section 1981, Title VII and the PHRA
Section 1981 provides that: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to . . . the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens....”
Pursuant to the provisions of Title VII, it is an unlawful employment practice for an employer to discharge or discriminate against any individual because of that individual‘s race or national origin.
Acts of discrimination are similarly prohibited under the provisions of the PHRA. See
Wilson has asserted various claims under these statutes. Each will be addressed in turn.
1. Disparate Treatment
To establish a prima facie case of disparate treatment, a plaintiff must show: (1) the plaintiff belongs to a protected class; (2) he was qualified for the position; (3) he was subject to
There are two ways to satisfy the fourth element: “(1) introduce evidence of comparators (i.e., similarly situated employees who (a) were not members of the same protected class and (b) were treated more favorably under similar circumstances); or (2) rely on circumstantial evidence that otherwise shows a causal nexus between his membership in a protected class and the adverse employment action.” Drummer v. Hosp. of Univ. of Pa., 455 F. Supp. 3d 160, 168 (E.D. Pa. 2020) (quoting Greene v. V.I. Water & Power Auth., 557 F. App‘x 189, 195 (3d Cir. 2014)); see Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 268-69 (3d Cir. 2010) (stating “comparative evidence is often highly probative of discrimination, [but] it is not an essential element of a plaintiff‘s case“).
By stipulation (ECF No. 33), the parties agreed that Wilson‘s disparate treatment claims under Section 1981, Title VII, the PHRA and the ADA are limited to Wilson being placed on leave in February 2021 and his discharge and/or constructive discharge in September 2021.8 Wilson alleges that he was subjected to disparate treatment on the basis of his race and national origin by being compelled to take a medical exam, placed on leave, declared unfit for work and constructively discharged in violation of Section 1981 (Count I), Title VII (Count II) and the PHRA (Count VII). Defendants move to dismiss all of these claims on the ground that he has failed to allege the fourth element of a prima facie case. Specifically, because he has not pointed
Defendants are correct that Wilson has not alleged any facts that support his conclusion that a comparator who is not a member of his protected class was treated more favorably under similar circumstances, or even that similar circumstances occurred and were handled differently. Thus, it is necessary to determine if the Amended Complaint pleads sufficient facts to suggest a causal nexus between Wilson‘s membership in a protected class and the alleged adverse employment actions of requiring a fitness exam, deeming him unfit for work and constructively terminating his employment.
Wilson alleges that when he attempted to get help with his company van, computer and phone, Columbia Gas refused to help him. Instead, his supervisor responded by calling him a schizophrenic and subjecting him to disciplinary action. This included sending him home and ordering him to undergo a medical examination.
In order to defeat a motion to dismiss, it is not necessary to allege a prima facie case of discrimination. Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021). “The complaint need only allege enough facts to ‘raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.‘” Id. (citation omitted). See also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) (establishing a prima facie case is an “evidentiary standard, not a pleading requirement.“).9
Despite its length, the Amended Complaint does not plead sufficient facts to establish a plausible nexus between Wilson‘s membership in a protected class and the adverse employment action of placing him on leave and requiring an examination. While he does allege that similarly situated Caucasian individuals who had “requests regarding their work vehicles were not subjected to refusals to even consider helping by Defendants,” the gravamen of his disparate treatment claims does not relate to his protected status at all. Rather, he claims that because he reported issues with his computer, phone and van, he was refused help, labeled as schizophrenic and disciplined. Thus, he has failed to plead a claim for disparate treatment under Section 1981, Title VII and the PHRA.
2. Retaliation
Title VII also prohibits retaliation against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
Wilson alleges that he was subjected to retaliation when he was required to undergo a fitness for duty exam, placed on leave and constructively discharged, in violation of Section 1981 (Count I), Title VII (Count III) and the PHRA (Count VIII). Defendants argue that these claims are insufficient because his vague and general allegations of unfair treatment and
As summarized by the Court of Appeals, the elements of a retaliation claim are as follows: 1) the plaintiff engaged in protected activity; 2) the employer took action that a reasonable employee would have found to be materially adverse in that it might well have dissuaded a reasonable worker from making a complaint; and 3) there is a causal connection between the protected activity and the adverse employment action. Moore v. City of Phila., 461 F.3d 331, 341-42 (3d Cir. 2006).
For purposes of a prima facie case, a plaintiff need only proffer sufficient evidence to raise the inference that his protected activity was the likely reason for the adverse employment action, not the but-for reason. See Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249 (3d Cir. 2017). A prima facie case may be shown “by indirect evidence whose cumulative probative force, apart from the presumption‘s operation, would suffice under the controlling standard to support as a reasonable probability the inference” of discrimination. Iadimarco v. Runyon, 190 F.3d 151, 162 (3d Cir. 1999) (citation omitted). See also LeBlanc v. Hill Sch., 2015 WL 144135, at *15 (E.D. Pa. Jan. 12, 2015) (to determine whether there was materially adverse employment action, the employer‘s actions may be considered in the aggregate).
To establish a causal link between the protected activity and the adverse employment action, a plaintiff may rely on a “broad array of evidence,” for example, temporal proximity, a pattern of antagonism, inconsistent explanations for the adverse action, or other similar circumstantial evidence. Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 260 (3d Cir. 2017); see also, Kieffer v. CPR Restoration & Cleaning Services, LLC, 733 F. App‘x 632, 638 (3d Cir. 2018) (“To demonstrate a causal connection, a plaintiff generally must show either (1)
As noted above, in order to defeat a motion to dismiss, it is sufficient, but not necessary, to allege a prima facie case. Martinez, 986 F.3d at 266. “The complaint need only allege enough facts to ‘raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.‘” Id. (citation omitted)
Defendants suggest that Wilson‘s retaliation claims are deficient because they raise only general complaints of “unfair treatment.” See Barber v. CSX Distribution Servs., 68 F.3d 694, 701-702 (3d Cir. 1995); Kier v. F. Lackland & Sons, LLC, 72 F. Supp. 3d 597, 616 (E.D. Pa. 2014). Defendants are correct that in any number of instances, the Amended Complaint makes only generic references to Wilson‘s reports of discrimination. In several places, however, Wilson alleges specific events in which he was treated differently than similarly situated Caucasian employees. A review of these allegations reflects that these events occurred at largely unspecified times over the course of Wilson‘s approximately thirteen-year employment with Columbia Gas. Thus, as to any such complaints, they do not meet the standard of temporal proximity to Wilson‘s placement on leave, nor does Wilson allege that any of his complaints about these specific discriminatory practices led to his placement on leave. Moreover, the parties have stipulated that Wilson‘s retaliation claims are limited to his being placed on leave in 2021 and his subsequent discharge. According to Wilson, these actions came about as a direct result of reporting issues about his van, computer and phone. Notably, he does not allege that he reported to his supervisor that the refusal to help him was discriminatory in nature. Thus, his conduct immediately preceding his leave does not represent protected activity under Title VII, § 1981 or
Defendants also assert that the only protected activity alleged in the Amended Complaint is his EEOC charge, which occurred after he was placed on leave. Therefore, they argue, Wilson failed to suffer an adverse job action that was causally related to a protected activity. Certainly, “opposition to discrimination can take the form of informal protests of discriminatory employment practices, including making complaints to management.” Moore, 461 F.3d at 343 (citation omitted).
The Supreme Court has held that retaliation is not limited to acts related to employment or that occur at the workplace but extends to those actions that would have been materially adverse to a reasonable employee. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Thus, Wilson contends, being labeled “crazy” and a “schizophrenic” and being forced to undergo a fitness for duty exam constitute acts of retaliation. While this may be correct, the fundamental flaw in Wilson‘s analysis is that his complaints about his van, phone and computer are not alleged to have been conveyed to his supervisor as grounded upon discriminatory conduct, and therefore, are not protected activity. Stated another way, at no point in the Amended Complaint does Wilson claim that he told his supervisor that the refusal to help him was based on his race or national origin. Since his complaints are not protected activity, the
Thus, as Wilson‘s allegations are insufficient to state a claim for retaliation, Defendants’ motion to dismiss Wilson‘s retaliation claims in Counts I, III and VIII will be granted.
3. Constructive Discharge Claims
Wilson alleges that he was constructively discharged in violation of Section 1981 (Count I), Title VII (Count II) and the PHRA (Count VII). Defendants argue that he has failed to plead that he was constructively discharged because he was not subjected to conditions so intolerable that a reasonable person would be forced to resign. Rather, they contend that according to his allegations, he was placed on leave after he failed a fitness for duty exam, and then refused to apply for short-term disability so that he could continue to be paid. Moreover, they assert, he was not threatened with discharge and because he was on leave, he does not allege that he sustained any harassing conduct during this time. In fact, he resigned several months after being placed on leave.
The Court of Appeals has held that “ordering [an employee] to see a psychiatrist, without more, did not adversely affect his status as an employee” and that “merely being required to undergo an evaluation does not harm the [employee‘s] employment opportunities.” Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005). At the same time, placing an employee on indefinite leave against his wishes after he fails a fitness for duty exam can constitute “an adverse employment action because it adversely affected the terms, compensations, and conditions of [his] employment.” Diaz v. Lezanski, 2011 WL 2115671, at *6 (D.N.J. May 25, 2011). See also Moore, 461 F.3d at 346.
Defendants cite several cases in which employees were placed on short-term leave (often
A district court faced a similar situation in Bright-Asante v. Saks & Co., Inc., 242 F. Supp. 3d 229 (S.D.N.Y. 2017). In that case, the defendant moved to dismiss a constructive discharge claim on the ground that the plaintiff failed to allege a hostile work environment claim regarding “intolerable conditions.” The court rejected this argument, stating that:
As an initial matter, in all of the cases Saks cites, the plaintiff asserted both a hostile work environment and a constructive discharge claim based on the same set of facts. This type of constructive discharge claim has been characterized as a “hostile-environment constructive discharge” claim and requires that a plaintiff sufficiently allege a hostile work environment in order to adequately allege a constructive discharge claim. See Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004) (describing a hostile-environment constructive discharge claim as a “compound claim” requiring a plaintiff to allege both that the offending behavior was so severe or pervasive that it created an “abusive working environment” and that the environment was so intolerable that a reasonable person would have felt compelled to resign). Here,
however, the basis for Plaintiff‘s constructive discharge claim is not a hostile or abusive work environment, but rather his indefinite suspension without pay. Courts have found that a drastic change in employment status or responsibilities can amount to a constructive discharge. Specifically, a “demotion, particularly one that is accompanied by a significant loss of salary, prestige or responsibilities, or is otherwise ‘humiliating,’ may also, on its own, give rise to a constructive discharge claim.” Bader v. Special Metals Corp., 985 F.Supp.2d 291, 310 (N.D.N.Y. 2013) (citing Suders, 542 U.S. at 133); see also Dean v. Westchester County Dist. Attorney‘s Office, 119 F. Supp. 2d 424, 431 (S.D.N.Y. 2000) (“A demotion with a reduction in pay and loss of employee benefits, when accompanied by evidence of malicious intent, can establish constructive discharge.“); Halbrook v. Reichhold Chemicals, Inc., 735 F. Supp. 121, 126 (S.D.N.Y. 1990) (“[E]vidence of a reduction in job responsibilities to the point where an employee has nothing meaningful to do with her time can lead to an inference of constructive discharge.“).
Id. at 243. See also Ford, 2011 WL 778051, at *9 (explaining the difference between two types of constructive discharge).
Defendants also rely on Adkison v. Willis, 214 F. Supp. 3d 1190 (N.D. Ala. 2016). In that case, the court held that a sheriff‘s deputy could not maintain a claim for constructive discharge when the sheriff told him that he could not return to work until he obtained a valid fitness-for-duty certification. The court granted summary judgment for the employer because the forced leave did not create “intolerable conditions” and because there was no evidence that the sheriff intended to force plaintiff to resign. In that case, the sheriff remained in contact with the plaintiff, paid for his evaluations and by the time he was notified that the plaintiff could return to work based on these evaluations, the plaintiff had accepted employment elsewhere. Id. at 1199.
The Adkison case is distinguishable both because it was decided on a motion for summary judgment and because of the material differences in the facts at issue.13 Here, Wilson alleges that Columbia Gas did not remain in contact with him and he was unable to obtain his
As in Bright-Asante, although Wilson does allege a hostile work environment claim, the basis for his constructive discharge claim as pleaded is his indefinite suspension without pay based upon failing a fitness for duty exam. Not only was there no projected end to the suspension, but Wilson has alleged that, even when he attempted to challenge the basis for his forced leave by responding to Dr. Wettstein‘s conclusions, Columbia Gas did not allow him to return to work. If proven, this situation represented a “drastic change in employment status” that can amount to a constructive discharge. See also Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993) (factors indicating a constructive discharge include: a demotion or reduction in pay or benefits; involuntary transfer to a less desirable position; and alteration of job responsibilities); Burton v. Pennsylvania Bd. of Probation & Parole, 2002 WL 1332808, at *4 (E.D. Pa. June 13, 2002) (Black parole supervisor who was given more onerous work assignments than white coworkers, unfairly and disproportionately reprimanded on numerous occasions and given a written reprimand that thwarted any future potential for promotions stated a claim for constructive discharge).14
Moreover, while Defendants contend that Wilson was paid “for part of the time” during his suspension, he alleges that he was not.15 Defendants also note that Wilson admitted in his EEOC charge that he was on paid leave. It is true that the EEOC charge includes the statement “I
For purposes of evaluating a motion to dismiss, Wilson‘s allegations that he was not paid must be accepted as true. Thus, at this time, the Court cannot resolve the disputed issue of whether Wilson could have received short-term disability payments and thus was not deprived of all pay,17 as this is beyond the scope of a motion to dismiss. Therefore, Defendants’ motion to dismiss regarding his claims for constructive discharge in Counts I, II, and VII will be denied.
4. Hostile Work Environment Claims
Wilson alleges that he was subjected to a hostile work environment based on his race and national origin in violation of
A violation of
[A] plaintiff must show that 1) the employee suffered intentional discrimination because of his/her [race or national origin], 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability [meaning the
employer is responsible].
Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017) (quoting Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013)). See also Faragher, 524 U.S. at 786-87 & n.1; Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996). The same standards apply under the PHRA. See Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001).
a. Claim against Columbia Gas
Defendants first contend that Wilson has not alleged intentional discrimination because many of the incidents he cites (being called stupid, being told he was acting like a boss when he wore collared shirts, the incident involving his hat,18 having his ID badge disconnected and credit card cancelled, not being invited to the perfect attendance awards event, the van door that locked on its own, computer and phone problems) are neutral, that is, they do not relate directly to his race or national origin. Nevertheless, he has also cited remarks that did relate to his race (being repeatedly referred to in a derogatory manner as the black guy) and national origin (being asked if all Jamaicans live in stick houses). He also alleges that he was assigned to jobs Caucasian employees did not want to do and unlike similarly situated employees outside of his protected status, was given emergency jobs at the end of his shift. Further, it was a common practice to send him to properties where it was known that he would be subject to harassment because of his race and national origin.
In Castleberry, the Court of Appeals clarified that the standard for the second element of a hostile environment claim is severe or pervasive. 863 F.3d at 264. Indeed, the court held in Castleberry that a single use of the highly-charged n-word was sufficiently severe to state a
Wilson does not point to any examples of severe discrimination. The comments he cites, while rude and unpleasant, do not rise to the level of being severe. However, he does allege that the comments were pervasive in that they took place repeatedly over a ten-year period.
Most of the cases cited by Defendants to support the argument that Wilson has not pointed to pervasive harassment were decided on motions for summary judgment with fully developed records.19 By contrast, cases decided on motions to dismiss typically involve isolated incidents which were not severe or pervasive. See Chandler v. La-Z Boy, Inc., 2022 WL 3357674, at *3 (E.D. Pa. Aug. 15, 2022) (single instance of being called a colored girl plus some taunts that were not racially based or motivated); Newman v. Point Park Univ., 2022 WL 969601, at *25-27 (W.D. Pa. Mar. 31, 2022) (professor‘s complaints, which related mostly to academic disagreements with others, plus two isolated antisemitic remarks made months apart by different people); Lara v. Samuel Adams Pa. Brewing Co., LLC, 2020 WL 5211206, at *11 (E.D. Pa. Sept. 1, 2020) (single comment by coworker that she was tired of a staffing agency hiring all these blacks and Puerto Ricans, followed by her affirmation that she was a racist, plus Lara‘s complaint that the company‘s white hat, yellow hat system from distinguishing permanent from temporary employees created a de facto segregation system, his loss of overtime and his frustration with what he perceived as the company‘s failure to take action regarding his
complaints); Burton, 2002 WL 1332808, at *3 (isolated incident of another employee wearing an
Defendants also cite Bellamy v. Waterfront Square Condominiums, 2013 WL 607848 (E.D. Pa. Feb. 19, 2013), in support of their position. In that case, the plaintiff‘s only specific factual allegations were that Milner (a general manager) referred to her and other black employees to as “you people,” that she refused to speak with black residents and instead directed their questions and concerns to Plaintiff or black employees of Defendants in general, that she attempted to eliminate Martin Luther King Day as an observed holiday and that she express[ed] contempt for its inclusion as a holiday. The court concluded that: “Absent any allegations concerning the frequency of Milner‘s alleged offensive remarks or specific facts from which the Court may infer that Milner‘s alleged conduct unreasonably interfered with plaintiff‘s performance at work, I find that the conduct alleged is not sufficiently severe and pervasive to evidence the requisite change in the conditions of plaintiff‘s work environment.” Id. at *5.20 See also Wesley v. PNC Bank, 2020 WL 7319548, at *6-7 (E.D. Pa. Dec. 11, 2020) (bank teller did not provide any relevant dates or frequency of comments that teller would be better off working in an inner-city branch because she was Black and thus could not state a claim of a racially hostile work environment).
However, Wilson has also alleged that Columbia Gas personnel frequently referred to him as the black guy and that they did so throughout his employment; that they required him, unlike similarly situated Caucasian employees, to take assignments at the very end of his shift or perform jobs that Caucasian employees did not want to do; that he was sent to dangerous neighborhoods based upon his race and national origin; and that he was sent 31 times to a location despite the fact that the property owner harassed and threatened him because he is Jamaican.21 Wilson alleges that these activities occurred on a continuous, nonstop basis throughout his employment without remedial action despite reporting this behavior multiple times to at least four Columbia Gas supervisors or human resources personnel.
An employer may be liable under
Columbia Gas also contends that Wilson fails to plead the third and fourth elements, that the discrimination detrimentally affected him and that it would detrimentally affect a reasonable person in like circumstances. With respect to the third element, Wilson alleges that he repeatedly reported the offensive comments to his supervisors and HR. He did not have to explicitly inform Columbia Gas that he was offended. Indeed, the very fact that he reported these incidents is sufficient evidence that he was offended. See Mandel, 706 F.3d at 169 (describing this element
b. Claim Against Wargo in Count I
Defendants also move to dismiss the hostile work environment claim asserted against Wargo under
The Court of Appeals “has found individual liability under
Defendants note that Wilson does not allege that Wargo called him race-based names or used discriminatory race-based language or gestures or caused or directed anyone else to do so. See Brown v. TD Bank, N.A., 2016 WL 1298973, at *10 (E.D. Pa. Apr. 4, 2016) (plaintiff failed to state a claim against one supervisor by alleging that he placed him on a PIP and noted that his
Wilson has not responded to this argument. Because he has not pleaded any discriminatory actions by Wargo within the statutory period, the hostile work environment claim against Wargo in Count I will be dismissed.
c. Claim Against Wargo in Count IX
Wilson also asserts in Count IX that Wargo discriminated against him by aiding and abetting a hostile work environment in violation of the PHRA.23 Although Wilson does not allege that Wargo engaged in any discriminatory conduct, he does allege that he reported discriminatory conduct to Wargo, among others. (Am. Compl. ¶ 54.) This is sufficient to allege a claim of aiding and abetting liability against Wargo. See Dici v. Commonwealth of Pa., 91 F.3d 542, 553 (3d Cir. 1996) (when the plaintiff alleged that she told a supervisor that she was being subjected to harassment and he refused to take prompt action to end it, “Such conduct, if proven, would constitute aiding and abetting.“) Therefore, this claim will not be dismissed.
5. Exhaustion
Defendants also contend that Wilson cannot maintain a claim of racial discrimination against Columbia Gas under either
Defendants have submitted Wilson‘s EEOC charge cover sheet, on which he checked boxes indicating he was raising claims of national origin, disability and retaliation discrimination. He did not check the box for racial discrimination and did not use this term in his brief listing of “particulars.” (ECF No. 39 Ex. A at 1, 2.)
Wilson has submitted additional information that he supplied to the EEOC, which he describes as the remainder of his charge. (ECF No. 44 Ex. A.) In these documents, he states, inter alia, that he was subjected to “racial remarks” (id. at 5) and responds to a request from the agency to identify the coworker who said “what is that black guy about?” (Id. at 6, 7, 16.) This evidence supports Wilson‘s contention that he did provide the EEOC with notice that he was raising racial discrimination claims.
The mere failure to check a specific box on the EEOC charge form is not a fatal error. See Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190, 196 & n. 2 (E.D. Pa. 1994). Rather, “[t]he most important consideration in determining whether the plaintiff‘s judicial complaint is reasonably related to his EEOC charge is the factual statement.” Id. at 197.
In addition, a reasonable EEOC investigation should include claims not specifically
In the cases cited by Defendants, the unexhausted claims were substantially different than those that the plaintiffs included in their EEOC charges. See Antol, 82 F.3d at 1295 (disability claim gave EEOC no notice of gender discrimination claim); Spindler v. Southeastern Pa. Transp. Auth., 47 F. App‘x 92, 94 (3d Cir. 2002) (disability claim gave EEOC no notice of racial discrimination claim); Barzanty v. Verizon PA, Inc., 361 F. App‘x 411, 414 (3d Cir. 2010) (gender discrimination relating to plaintiff‘s discharge did not give EEOC notice of hostile work environment claim); Brown v. Saint Vincent Health Ctr., 2022 WL 865818, at *2 (W.D. Pa. Mar. 23, 2022) (charge contained no allegations of gender discrimination); Ocasio v. City of Bethlehem, 2009 WL 37518, at *4 (E.D. Pa. Jan. 7, 2009) (race and national origin claims surrounding the defendant‘s failure to promote the plaintiff did not put EEOC on notice that it should investigate potential harassment, hostile work environment, or retaliation issues arising out of separate incidents).
Not only did Wilson raise race as an issue in documents he submitted to the EEOC, but his claim of national origin discrimination based on being Jamaican clearly overlaps with a claim of racial discrimination based on being Black. Thus, Wilson will not be penalized for failing to check the “right box” on a form, particularly when the information as a whole was sufficient to put the EEOC and Columbia Gas on notice of his claims. Therefore, Defendants’ argument for dismissal of these claims based on failure to exhaust will be denied.
C. ADA Claims
Wilson asserts two claims against Columbia Gas only under the ADA: disparate treatment (Count IV) and retaliation (Count V).
The ADA provides that: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
In Count IV, Wilson alleges that at all relevant times, he was able to fulfill his job requirements but Columbia Gas manufactured discriminatory conditions to his employment that did not exist for any other employee. He further alleges that he was wrongfully perceived as disabled and that Columbia Gas attempted to use his medical status to keep him from continuing his employment. Thus, he was intentionally regarded as having a disability in order to force him out of his employment.
Columbia Gas seeks dismissal of the portion of Count IV that is based on a constructive discharge. As discussed previously, however, Wilson has alleged sufficient facts to support a claim of constructive discharge. Therefore, Defendants’ motion to dismiss this aspect of the ADA claim in Count IV will be denied.
The same is not the case with respect to Count V, however. Significantly, Wilson does not allege in Count V that Columbia Gas retaliated against him for exercising any right related to an “act or practice made unlawful” by the ADA, i.e., discrimination based upon a disability.
D. FMLA Claim
The FMLA provides that:
any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave:
(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
The Act contains two relatively distinct types of provisions: a series of prescriptive substantive rights for eligible employees, often referred to as the “entitlement” or “interference” provisions which set floors for employer conduct,
Here, Wilson asserts only an interference claim. To make out a claim of interference under the FMLA, a plaintiff must establish:
(1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA‘s requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA.
Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014) (citation omitted).
Defendants contend that Wilson has not stated an FMLA interference claim. He does not allege that he requested FMLA leave which was denied. Rather, he was put on leave by Columbia Gas after he failed a fitness for duty exam. Thus, Defendants argue that, if anything, Wilson received all FMLA leave to which he was entitled.
Wilson argues that Columbia Gas forced him to use FMLA leave against his will by placing him on leave after he failed the fitness for duty exam. Even accepting Wilson‘s version of events as true, however, he has not explained how it states a claim for FMLA interference. Therefore, Count VI will be dismissed.
IV. Conclusion
For the reasons explained above, Defendants’ partial motion to dismiss will be granted in part and denied in part. With respect to Defendant Columbia Gas, the disparate treatment claims in Counts I, II and VII and the retaliation claims in Counts I and III will be dismissed; and Counts V, VI and VIII will be dismissed. Columbia Gas‘s motion is otherwise denied.
With respect to Defendant Wargo, the hostile work environment claim against him in Count I will be dismissed. The motion to dismiss Count IX will be denied.
An appropriate order follows.
Dated: June 7, 2023
/s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge