Opinion
CIVIL ACTION NO. 3:18-CV-00158
11-07-2018
EDWARD JOSEPH NESGODA, Plaintiff, v. LEWISTOWN VALLEY ENTERPRISES, et al., Defendants.
(MARIANI, J.)
() REPORT AND RECOMMENDATION
This case was transferred to the Middle District of Pennsylvania from the Eastern District. (Doc. 2). In his complaint, Edward Joseph Nesgoda ("Nesgoda") brings claims against Defendants, Lewistown Valley Enterprises, doing business as Koch's Turkey Farm, Doug Nystrand, and Derrick Green, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"). (Doc. 1-2 at 2). Pending before the Court are two motions to dismiss filed on behalf of the Defendants. (Doc. 11; Doc. 22). The motions have been fully briefed and are ripe for disposition. I. BACKGROUND AND PROCEDURAL HISTORY
In transferring this matter to this Court, the Eastern District of Pennsylvania court noted that it understood "plaintiff to be raising claims under Title VII, 42 U.S.C. § 2000e-5(f)(3)." (Doc. 2). This Court construes the complaint as raising claims under Title VII as well. Title VII protects employees from workplace discrimination because of the individual's "race, color, religion, sex, or national origin." Barnees v. Nationwide Mut. Ins. Co., 598 F. App'x 86, 90 (3d Cir. 2015) (citing 42 U.S.C. § 2000e-2(a)(1)).
The facts, as alleged in Nesgoda's complaint, are as follows. During the time period relevant to the allegations in the complaint, Nesgoda was employed at LVE. LVE terminated Nesgoda on August 2, 2017. (Doc. 1-2 at 4). Sometime on August 1 or 2, 2017, Nesgoda had an argument with Angela Lopez, a coworker at LVE, through the social media site WhatsApp. (Doc. 1-2, at 8). The argument took place while the company was closed, and Nesgoda alleges that he was harassed by Lopez. (Doc. 1-2, at 8). Nesgoda also alleges that he was harassed and threatened by a maintenance employee, Derrick Green ("Green"). (Doc. 1-2 at 8). Nesgoda avers that Lopez informed Green of the argument between Nesgoda and Lopez, and that Green reacted by threatening to "beat [his] head in." (Doc. 1-2 at 11). Green also told Nesgoda he had been in the "psych ward in the past" and that Green was very intimidating towards him by telling him about other employees whom Green had chased out of the plant by harassing them or otherwise made them quit their jobs. (Doc. 1-2 at 11). Finally, Nesgoda alleges that Doug Nystrand ("Nystrand") terminated him without bothering to hear Nesgoda's side of the story. (Doc. 1-2 at 9).
In deciding a motion to dismiss, a court is generally limited to the allegations set forth in the pleadings, although it may also consider documents attached to the complaint and matters of public record. Opposition briefs to a motion to dismiss may not be used to amend a complaint. Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.1988). Nesgoda raises additional facts in his briefs in opposition to the motions to dismiss (Doc. 17, Doc. 24) and in additional documents filed with the Court (Doc. 25, Doc. 29), but the Court will limit its analysis of the motion to dismiss to the allegations set forth in the complaint.
On June 1, 2018, Defendant LVE, doing business as Koch's Turkey Farm, through counsel, filed a motion to dismiss (Doc. 11). LVE and Koch's Turkey Farm returned executed service forms on June 4, 2018. (Doc. 12). That same day, summons were returned unexecuted as to Green and Nystrand. (Doc. 13). After Nesgoda updated the addresses of Green and Nystrand, the Court reissued summons on those defendants. (Doc. 19, Doc. 20). To date, no return of service for those defendants has been returned. Despite the apparent lack of service, on August 16, 2018, Green and Nysrand, through the same counsel as LVE, filed a motion to dismiss. (Doc. 22). The motion filed on behalf of Green and Nystrand essentially mirrors that filed on behalf of LVE, but includes a note that they have not been served with the complaint, and that they are not waiving any defect in service. However, no further argument is made on this issue. On November 2, 2018, counsel formally entered her appearance on behalf of all defendants (Doc. 31).
Both motions to dismiss are ripe for disposition. In their motions, Defendants submit that Nesgoda's claim should be dismissed because he failed to exhaust administrative remedies, he failed to plead viable Title VII claims of discrimination or harassment, and finally, that claims against Nystrand and Green should be dismissed as there is no individual liability under Title VII. II. STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "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 the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)).
In deciding a motion to dismiss, a court is generally limited to the allegations set forth in the pleadings, although it may also consider documents attached to the complaint and matters of public record. Opposition briefs to a motion to dismiss may not be used to amend a complaint. Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.1988). To determine the sufficiency of a complaint a court must take three steps. Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d. Cir. 2010). First, the court must take note of the elements required to state a claim. Id. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "[W]here there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Id.
Pursuant to Rule 8 of the Federal Rules of Civil Procedure:
A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; [and] (2) a short and plain statement of the claim showing that the pleader is entitled to relief.
Additionally, "the statement required by Rule 8(a)(2) must give the defendant fair notice of what the plaintiff's claim is and of the grounds upon which it rests." Bayer v. Pocono Med. Ctr., No. CIV.A. 3:13-1900, 2014 WL 3670499, at *4 (M.D. Pa. July 23, 2014) (citing Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). III. DISCUSSION
A. EEOC EXHAUSTION
Prior to filing a Title VII suit in federal court, a plaintiff must first exhaust his administrative remedies by filing a discrimination charge with the EEOC. Burton v. Pennsylvania State Police, 990 F. Supp. 2d 478, 498 (M.D. Pa. 2014), aff'd, 612 F. App'x 124 (3d Cir. 2015); Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.1997); Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984). Defendants submit that Nesgoda has failed to exhaust his administrative remedies, and that the complaint lacks any allegation that Nesgoda ever filed a charge with the Equal Employment Opportunity Commission ("EEOC"). In his submissions opposing the motion to dismiss, Nesgoda alleges that he has complied with the administrative requirements of the EEOC, and that he even sent a copy of an EEOC response to the clerk of courts, though no such copy is found on the docket. (Doc. 25 at 7); (Doc. 29 at 2).
"Timeliness of (EEOC) exhaustion requirements are best resolved under Rule 12(b)(6) covering motions to dismiss for failure to state a claim," as opposed to Rule 12(b)(1) motions concerning jurisdictional requirements. Robinson, 107 F. 3d at 1022. "The causes of action created by Title VII do not arise simply by virtue of the events of discrimination which that title prohibits." Horsby v. U.S. Postal Service, 787 F.2d 87, 90 (3d. Cir. 1986). In order to survive a motion to dismiss, a cause of action must assert the "satisfaction of the precondition to suit specified by Title VII: prior submission of the claim to the EEOC... for conciliation or resolution." Id. Once a plaintiff asserts that he exhausted his administrative remedies, the burden lies with defendant to plead and prove that he failed to do so. Williams v. Runyon, 130 F.3d 568, 573 (3d. Cir. 1997). Proof requires more than mere conclusory allegations. Patnaude v. Gonzales, 478 F. Supp. 2d 643, 648 (D. Del. 2007).
Although Nesgoda has submitted in his papers opposing the motions to dismiss that he has exhausted his administrative remedies, a court is generally limited to the allegations set forth in the pleadings. Opposition briefs to a motion to dismiss may not be used to amend a complaint. Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.1988). Nesgoda raises additional facts in his briefs in opposition to the motions to dismiss (Doc. 17, Doc. 24) and in additional documents filed with the Court (Doc. 25, Doc. 29), but the Court limits its analysis of the motions to dismiss to the allegations set forth in the complaint. Particularly since the Court recommends granting leave to amend, it will recommend granting Defendants' motions to dismiss on the grounds that Nesgoda has failed to adequately plead that he exhausted administrative remedies.
B. PROPER DEFENDANTS IN A TITLE VII CLAIM
Nesgoda asserts Title VII claims against Green and Nystrand, employees of Defendant LVE. (Doc. 1-2). The Third Circuit's disposition on individual liability under Title VII is clear — Congress did not intend to hold individual employees liable under this statute. Sheridan v. E. I. DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3d. Cir. 1996); see also Burton v . Pennsylvania State Police , 990 F. Supp. 2d 478, 509 (M.D. Pa. 2014), aff'd, 612 F. App'x 124 (3d Cir. 2015); Slater v. Susquehanna Cty., 613 F. Supp. 2d 653, 662 (M.D. Pa. 2009), aff'd, 465 F. App'x 132 (3d Cir. 2012); McNamara v. Susquehanna County, No. 3:17-cv-02182, 2018 WL 2183266, *4-5 (M.D. Pa. May 11, 2018); Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 184 (3d Cir.1997). "Title VII authorizes a cause of action only against employers, employment agencies, labor organizations, and training programs." Fullman v. Philadelphia Intern. Airport, 49 F. Supp. 2d. 434, 441 (E.D. Pa. 1999) (citing 42 U.S.C. § 2000e-2). As such, the Court will recommend granting Defendants' motion to dismiss any claims against Defendants Nystrand and Green.
C. TITLE VII DISCRIMINATION
A Title VII plaintiff has the initial burden of establishing a prima facie case of discrimination. Absent direct proof of purposeful discrimination, a Title VII plaintiff must establish an appropriate inference of discriminatory intent through the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. A plaintiff alleging discriminatory discharge must prove that (1) he was a member of a protected class, (2) he was qualified for the position from which she was discharged, and (3) others not in the protected class were treated more favorably. McNamara v. Susquehanna Cty., No. 3:17-CV-02182, 2018 WL 2183266, at *3 (M.D. Pa. May 11, 2018); Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990). A Title VII plaintiff has established a prima facie case when sufficient evidence is offered such that the court can infer that if the employer's actions remain unexplained, it is more likely than not that such actions were based on impermissible reasons. EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 1990). Nesgoda's complaint (Doc. 1-2) fails to allege any facts necessary to make this prima facie case. First, Nesgoda fails to identify of which protected class he was a member. Secondly, he does not allege any facts that establish he was qualified for the position he held. Finally, he does not allege the existence of any others in his protected class who were treated more favorably than he was. As such, it is recommended that Nesgoda's claim of discrimination under Title VII be dismissed.
See Hill v. Se. Pa. Transp. Auth., No. CIV.A 09-05463, 2010 WL 3490025, at *4 (E.D. Pa. Sept. 1, 2010) (finding that an inference of a protected class would be unreasonable and that plaintiffs must expressly allege such a fundamental fact.)
D. TITLE VII HARASSMENT CLAIM
Nesgoda alleges that Green, a maintenance employee, harassed him on August 2, 2017. (Doc. 1-2 at 8). The creation of a hostile work environment through harassment, this Court has long recognized, is a form of proscribed discrimination. Vance v. Ball State University, 570 U.S. 421, 452 (2013). "To succeed on a hostile work environment claim [against the employer], the plaintiff must establish that 1) the employee suffered intentional discrimination because of [his protected characteristic], 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." Stroud v. Susquehanna Cty., No. CV 3:17-2183, 2018 WL 3727388, at *7 (M.D. Pa. Aug. 6, 2018); Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (citation omitted).
Nesgoda alleges that he was harassed by Green when Green threatened to have Nesgoda fired, and to beat Nesgoda's head in. (Doc. 1-2 at 9). Nesgoda also alleges that he was harassed by Green for "the past three weeks" while Nesgoda was training at LVE. (Doc. 1-2 at 9). Harassment is actionable under Title VII only if it is so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment. Whether an environment is sufficiently hostile or abusive must be judged by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Eldeeb v. Potter, 675 F. Supp. 2d 521, 523 (E.D. Pa. 2009); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Moreover, Nesgoda does not allege what his protected characteristic is, or that LVE is liable for any harassment by Green, a co-worker.
An employer's liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. Vance, at 452. When the purported harasser is a co-worker, the plaintiff must show that the "employer knew or should have known of the offensive conduct but failed to take reasonable action." Vance, 570 U.S. at 453-54. "Although an employer has a duty to be reasonably diligent in attempting to discover co-worker harassment, and to respond promptly and appropriately to that harassment, an employer is not expected to know every instance of harassment that may occur between co-workers." Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 108 (3d. Cir. 2009). Nesgoda does not allege any facts that LVE knew or should have known of the harassment.
Given the absence of any facts that indicate the protected characteristic of Nesgoda or the liability of LVE, Nesgoda's complaint fails to state a claim for relief that is plausible on its face. See Eldeeb, at 524; see also Ashcroft v. Iqbal, 129 S.Ct. at 1949; Bell Atlantic v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). As such, it is recommended that Nesgoda's claim of harassment under Title VII be dismissed. IV. LEAVE TO AMEND
The Third Circuit has instructed that district courts generally must permit a curative amendment if a complaint filed pro se is vulnerable to dismissal for failure to state a claim, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). However, the Third Circuit has also acknowledged that a district court has "substantial leeway in deciding whether to grant leave to amend." Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000).
As the complaint in its current form does not clearly set forth any cognizable claims, dismissal is warranted. However, out of an abundance of caution, and to preserve Nesgoda's rights as a pro se litigant, the Court will allow him an opportunity to file a single, unified, legible complaint setting forth factual allegations and legal claims in a manner that can be reviewed by the Court and, if necessary, answered by LVE. The amended complaint must be a pleading that stands by itself without reference to the original complaint. Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992) (emphasis added). Further, the amended complaint must be "simple, concise, and direct" as required by Rule 8(d)(1) of the FEDERAL RULES OF CIVIL PROCEDURE. It must also be limited to those claims that arise out of the same transaction or occurrence or series of transactions or occurrences as averred, albeit vaguely, in the original complaint. Failure to file an amended complaint in accordance with the aforementioned requirements will result in the dismissal of this action in its entirety. V. RECOMMENDATION
Based on the foregoing, it is recommended that the Court grant Defendants' Motion to Dismiss, in part with prejudice and in part without prejudice. Specifically, it is recommended as follows:
1. The Court GRANT the motion to dismiss of Defendants Green and Nystrand (Doc. 22), all claims against Defendants Green and Nystrand be dismissed with prejudice, and Defendants Green and Nystrand be terminated from the case;
2. That the Court GRANT the motion to dismiss filed by Defendant LVE for failure to state a claim; and
3. Plaintiff be granted 21 days from the date of the District Court's adoption of this Report and Recommendation to file a complete amended complaint.
Dated: November 7, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated November 7, 2018.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Dated: November 7, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge