Opinion
Civil No. 3:18-CV-942
12-18-2018
VERA HAAIJER, Plaintiff v. OMNOVA SOLUTIONS, INC., Defendant
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This workplace discrimination lawsuit comes before us for consideration of a motion to dismiss some, but not all, of the plaintiff's claims. In particular, the defendant seeks to dismiss Haaijer's retaliation and hostile workplace claims, as well as her pendent state law wrongful termination claim. (Doc. 18.)
With respect to these claims, the pertinent well-pleaded facts set forth in Haaijer's complaint, which we must accept as true when evaluating a motion to dismiss, allege that Haaijer was "an adult female over the age of 40 years and was a successful and accomplished engineer in her position with the Defendant." (Doc. 1, ¶11.) According to Haaijer she "was always provided with outstanding reviews and had no complaints about her work or her actions." (Id., ¶12.)
Despite what she describes as superior job performance throughout her tenure at Omnova, Haaijer's complaint alleges a pattern of discrimination against her over time. These alleged acts of discrimination were many, and varied, according to Haaijer. As Haaijer alleged in her complaint:
20. During her tenure with the Defendant the Plaintiff was consistently treated differently then [sic] male managers and other male employees.
21. On one occasion, just prior to her termination, the President (male) of the company paid a visit to the Auburn Facility.
22. The President visited with each and every male manager to discuss their performance and the work being performed at the Auburn facility.
23. The President failed and/or refused to meet with the Plaintiff and she stood as the only manager not seen by the President.
24. After her termination jobs that she was more than capable of performing for the same or similar salary were provided to men.
25. She was not informed of these other positions that she could have applied for because the Defendant did not want a female to assume said positions.
26. On at least five occasions she was overlooked for positions that were given to males who were younger and less qualified.
27. The Plaintiff was willing to accept a position other than the one she was being terminated from, but she never had the chance because she was fired under the ruse that there was a "reorganization" occurring.
28. There was no such reorganization and it served only as an excuse to fire a female.
29. In fact, one of the males that the Plaintiff was training to take up a managerial position was hired after the Plaintiff was terminated. She
was more than capable of accepting said position and the pay rate was similar in nature.
* * * * * * * * * * * * * * * *
33. The Plaintiff, as a female, was left out of many meetings that were attended by male managers during her tenure at the Defendant.
34. The Plaintiff, as a female, had been interviewing certain male employees for management positions. She was informed that she was to interview these male employees and make the hiring decision.
35. However, this did not occur and her decisions were ignored and male managers who were subordinate to the Plaintiff made these hiring decisions.
36. The Plaintiff's decisions and work were often taken over by male employees who were subordinate or held an equal position as the Plaintiff.
According to Haaijer, this disparate treatment continued until September 14, 2017, when she was fired. (Id., ¶13.) While the chronology of events surrounding her termination are somewhat murky, at one point in her complaint Haaijer alleges that:
13. On September 14, 2017, the Plaintiff was called to the office of her manager and informed that she was terminated because the Defendant was in the process of "reorganization".
14. Following her termination the Plaintiff was offered a severance package from the Defendant that included a financial payment in excess of $17,000.00.
15. However, for the Plaintiff to receive said payment and other benefits under the severance package she had to sign a waiver stating that she would forego any claims under Title VII and other federal and state
discrimination laws and that she was not subject to sexual or age discrimination.(Id., ¶¶ 13-17.) Thus, Haaijer initially described a scenario in which she was terminated and offered a severance package conditioned upon the waiver of claims, something she refused to do. She was then denied these severance benefits. Notably missing from this initial factual narrative, however, was any assertion of rights under Title VII by Haaijer prior to being offered a severance package.
16. The Plaintiff informed the Defendant that she would accept the severance package, but would not agree to waive her rights under Title VII and other federal and state discrimination laws and that she was not subject to sexual or age discrimination.
17. In retaliation the Defendant refused to pay the Plaintiff her severance package because she refused to sign the waiver and/or release. The Defendant retaliated against the Plaintiff because she would not agree to the Defendant's attempt to insulate itself from legal action for its unlawful termination of the Plaintiff based upon her age and sex.
However, later in her complaint Haaijer describes the events in a different fashion asserting that:
37. When the Plaintiff was terminated she informed her employer that she believed that she was subject to discrimination because of her age and gender.
38. In turn, the Defendant provided her a severance package, but required her to sign documents wherein she would waive any and all claims of discrimination.
39. Male employees were not required to sign similar waivers in order to receive their severance package.
40. When the Plaintiff demanded that the language be removed from the severance agreement the Defendant refused to provide her with her severance package in retaliation for making such a claim.(Id., ¶¶ 37-40.) Thus, in this second recounting, Haaijer seems to allege that her employer made the payment of severance contingent upon her waiver of Title VII claims only after she asserted that she had been discriminated against based upon her gender. Haaijer's current complaint does not reconcile these two different factual narratives.
According to Haaijer's complaint she "exhausted her administrative remedies, [by] fil[ing] charges with the EEOC and Pennsylvania HRC, averring, inter alia, that she was subjected to discrimination and harassment based upon her sex, age, culminating in her termination." (Id., ¶ 8.) A review of Haaijer's administrative complaint lodged with the EEOC reveals that the thrust of that complaint related to her September 2017 termination, but Haaijer also alleged that this termination was the culmination of a longstanding pattern of disparate treatment based upon her gender, stating that:
Once I was terminated I began to understand why certain actions had happened prior to September 14, 2016. A number of younger male employees who had the same or less experience and education as myself were given positions that I would be able to fill. The Employer hired certain younger male employees to positions that I was eligible to fill. In essence, for a period of at least one year prior to my termination the Employer failed to offer me or make available several jobs for which I was eligible to fill. It needs to be noted that all employees who were given positions as part of the reorganization were male and younger than myself. 1 have since learned that one other female
employee was terminated from her employment as part of the reorganization and was not provided an opportunity to bid on other jobs.(Doc. 21-2, p. 1.)
On the basis of the well-pleaded facts set forth in her complaint, Haaijer brings claims of workplace discrimination relating to her termination, alleges that she was subject to a hostile work environment during her tenure at Omnova and asserts that the conditioning of her severance pay upon the waiver of legal claims was retaliatory conduct on the part of Omnova. Haaijer brings these claims against her former employer under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the companion state statute, the Pennsylvania Human Relations Act, (PHRA), 43 Pa. Cons. Stat., § 951, et seq. (Id., Counts 1-III.) In addition, Haaijer pursues a Pennsylvania common law wrongful termination claim against Omnova. (Id., Count IV.)
While these Title VII and PHRA claims are alleged separately, we will consider them jointly since: "Generally speaking, the Pennsylvania courts construe the parallel provisions of the PHRA to be coextensive with their federal counterparts. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996); Stultz v. Reese Bros., Inc., 835 A.2d 754, 759 (Pa. Super. Ct. 2003). The PHRA should be interpreted 'as identical to federal anti-discrimination laws except where there is something specifically different in its language' justifying a different construction. Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002)." Prise v. Alderwoods Grp., Inc., 657 F. Supp. 2d 564, 586 (W.D. Pa. 2009). Therefore, we will apply the same legal guideposts when evaluating the sufficiency of these parallel state and federal workplace discrimination and retaliation claims. McAssey v. Discovery Mach., Inc., No. 4:16-CV-705, 2018 WL 4016994, at *4 (M.D. Pa. Jan. 12, 2018), report and recommendation adopted, No. 4:16-CV-00705, 2018 WL 4002991 (M.D. Pa. Aug. 21, 2018) --------
Omnova has now moved to dismiss Haaijer's retaliation, hostile workplace, and state common law wrongful termination claims, arguing that these claims fail as a matter of law. This motion to dismiss is fully briefed by the parties and is, therefore, ripe for resolution.
For the reasons set forth below, it is recommended that the motion to dismiss be granted in part and denied in part as follows: We recommend that the motion be GRANTED with respect to the plaintiff's common law wrongful termination claim, (Doc. 1, Count IV.) We also recommend that the plaintiff be directed to file a more definite statement of her retaliation claim, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. Finally, we recommend that the motion to dismiss be DENIED in all other respects.
II. Discussion
A. Rule 12(b)(6) - The Legal Standard
The defendant has moved to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that the plaintiff has continued to fail to allege facts that state a claim upon which relief may be granted. With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)]and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal -U.S.-, 129 S. Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not "assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 556 U.S. at 675. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 679. Finally, 'where 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." Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment"). However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
It is against these legal guideposts that we now evaluate the adequacy of the allegations set forth in this complaint.
B. Standard of Review , Motion to Dismiss for Lack of Subject Matter Jurisdiction, Rule 12(b)(1)
The defendant has also moved to dismiss Haaijer's hostile work place claim for failure to exhaust pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1) permits the dismissal of an action for "lack of subject matter jurisdiction." A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff. See Id.; PBGC v. White, 998 F.2d 1192, 1196 (3d Cir.1993). In reviewing a factual attack, the court may consider evidence outside the pleadings. See Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir.1997) (citing Mortensen, 549 F.2d at 891). Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000)(footnote omitted) holding modified on other grounds by Simon v. United States, 341 F.3d 193 (3d Cir. 2003).
Here, the defendant's motion presents a factual attack upon subject matter jurisdiction, arguing that this court lacks jurisdiction over Haaijer's hostile work environment claim due to the plaintiff's failure to exhaust her administrative remedies with respect to that claim. When presented with such a fact-bound jurisdictional challenge are cautioned that:
A factual challenge contests the existence of subject matter jurisdiction, apart from any pleadings. Id. In reviewing a factual challenge, the court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case," even where disputed material facts exist. Mortensen, 549 F.2d at 891. In a factual challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists. Gould, 220 F.3d at 178; Mortensen, 549 F.2d at 891. If the defendant presents evidence
contesting any allegations in the pleadings, the presumption of truthfulness does not attach to the plaintiff's allegations and the plaintiff may present facts by affidavit or deposition or in an evidentiary hearing. Gould, 220 F.3d at 177; Mortensen, 549 F.2d at 891, 893 n. 18. "[I]f there is a dispute of material fact, the court must conduct a plenary trial on the contested facts prior to making a jurisdictional determination." Gould, 220 F.3d at 177.Moyer Packing Co. v. United States, 567 F. Supp. 2d 737, 748 (E.D. Pa. 2008).
C. Elements of Title VII Claims
The plaintiff has claimed that Omnova discriminated against her on the basis of sex or gender, created a hostile workplace environment, and otherwise retaliated against her for engaging in activity protected under Title VII by complaining about workplace discrimination. Omnova now seeks to dismiss the retaliation and hostile workplace environment claims, arguing that Haaijer's complaint fails to state a claim under either of these provisions of Title VII.
In considering this motion to dismiss we begin with the principle that Title VII forbids employers "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII discrimination claims are governed by a burden-shifting framework. See Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 325-26 (3d Cir. 2015). In short, that framework requires that the plaintiff demonstrate that (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) under circumstances that give rise to an inference of unlawful sex-based discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). The last element also requires that the plaintiff demonstrate a causal connection between her protected status and the allegedly adverse action. Id. at 798. The key focus of the prima facie test is "always whether the employer is treating 'some people less favorably than others because of their race, color, religion, sex, or national origin.'" Id. (citation omitted). The elements of the prima facie case "must not be applied woodenly, but must rather be tailored flexibly to fit the circumstances of each type of illegal discrimination." Geraci v. Moody-Tottrup Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996).
Beyond a workplace gender discrimination claim, the plaintiff's complaint also alleges in a fairly summary manner that she was subjected to a hostile work environment based upon her gender. Such allegations of a gender-based "hostile work environment" can also support a claim under Title VII when supported by sufficient factual allegations. "'[A] plaintiff may establish that an employer has violated Title VII by proving that discrimination based on sex created a hostile or abusive work environment.'" Jones, 796 F.3d at 328 (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)). In order to do so, a plaintiff must demonstrate that the sexual harassment in the workplace was "sufficiently severe or pervasive." Id. (quoting Vinson, 477 U.S. at 67). Thus, in order "[t]o survive a motion to dismiss a hostile work environment claim based on sex discrimination, [a plaintiff is] required to establish that (1) she suffered intentional discrimination 'because of' her gender; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person in the same position; and (5) the existence of respondeat superior liability. See Andrews, 895 F.2d at 1482; see also Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 715 (3d Cir. 1997) (describing an actionable hostile work environment claim as alleging 'sufficient severe or pervasive' conditions)." Betz v. Temple Health Sys., 659 F. App'x 137, 142 (3d Cir. 2016).
Hostile workplace claims often entail very fact-specific inquiries. Thus, in resolving such claims:
We must consider all the circumstances, including the frequency of the conduct, its severity, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether the conduct unreasonably interfered with the employee's work performance. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S. Ct. 2275, 141 L.Ed.2d 662 (1998). Offhand comments and isolated incidents—unless extremely serious—do not rise to the level of discriminatory changes in the terms and conditions of employment. Id. at 788, 118 S. Ct. 2275. See also Drinkwater v. Union Carbide Corp., 904 F.2d 853, 863 (3d Cir. 1990) (explaining that defendant's "two comments, however, are insufficient, in and of themselves, to support a hostile environment claim. Hostile environment harassment claims must demonstrate a continuous period of harassment, and two comments do not create an atmosphere.").Rosati v. Colello, 94 F. Supp. 3d 704, 716 (E.D. Pa. 2015). Moreover, an employer may defend itself against such a claim, to the extent it is not based upon a tangible adverse action such as termination, by showing that the employer "exercised reasonable care to take advantage of the employer's safeguards and otherwise to prevent harm that could have been avoided." Faragher v. City of Boca Raton, 524 U.S. 775, 805 (1998).
Finally, Title VII contains a retaliation provision which Haaijer also invokes in her complaint. With respect to a Title VII retaliation claim, a plaintiff must show that "(1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action." Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). "With respect to 'protected activity,' the anti-retaliation provision of Title VII protects those who participate in certain Title VII proceedings (the 'participation clause') and those who oppose discrimination made unlawful by Title VII (the 'opposition clause')." Moore, 461 F.3d at 341 (citing Slagle v. County of Clarion, 435 F.3d 262, 266 (3d Cir. 2006)). Regardless of the distinction between the two theories of retaliation, "the employee must hold an objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title VII." Id. (citing Clark County v. Breeden, 532 U.S. 268, 271 (2001) (per curiam)).
A plaintiff alleging Title VII retaliation must show that a reasonable employee would have found the allegedly retaliatory action "materially adverse," in that the conduct "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Moore, 461 F.3d at 341. A plaintiff must also show a causal connection between the plaintiff's opposition to, or participation in proceedings against, unlawful discrimination and an action that might have discouraged a reasonable employee from making or supporting a charge of discrimination. "Many may suffer . . . harassment at work, but if the reason for that harassment is one that is not proscribed by Title VII, it follows that Title VII provides no relief." Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006). This third element "identif[ies] what harassment, if any, a reasonable jury could link to retaliatory animus." Id. at 449-50. "The ultimate question in any retaliation case is an intent to retaliate vel non." Id. at 449 n.2. If the employee establishes a prima facie case of retaliation, the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its conduct, and if the employer does so "the plaintiff must be able to convince the factfinder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action." Moore, 461 F.3d at 342 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997).
In this case, Haaijer's Title VII claim is premised on the denial of severance benefits to the plaintiff, benefits which were allegedly conditioned upon a waiver of her rights under Title VII. As to this claim, the parties each seem to adopt categorical views. For her part, Haaijer seems to assert that the mere act of extending severance benefits conditioned upon the waiver of claims is, on its face, retaliatory. Omnova, in turn, suggests that the coupling of severance with a waiver of claims can never been retaliatory.
Case law under Title VII, however, illustrates that there is a third, less categorical path which we should follow. Where an employee has not engaged in any protected activity under Title VII prior to receiving the offer of a severance package conditioned upon a waiver of claims, courts have generally held that this severance offer, standing alone, is not facially retaliatory. E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490, 501 (6th Cir. 2006); E.E.O.C. v. Nucletron Corp., 563 F. Supp. 2d 592, 597 (D. Md. 2008). Further, in this setting:
Several courts have found that declining to pay severance or settlement amounts (not otherwise due) when an employee refused to sign a waiver or release does not amount to an adverse employment action in the retaliation context. Davis v. Precoat Metals, 328 F.Supp.2d 847, 849, 852-53 (N.D. Ill. 2004); Barriera v. Bankers Trust, No. 98 Civ. 3641, 2003 WL 22387099, at *8 (S.D.N.Y. Oct.20, 2003) (unpublished); Hansen v. Vanderbilt Univ., 961 F.Supp. 1149, 1153 (M.D. Tenn.1997); Jackson v. Lyons Falls Pulp & Paper, Inc., 865 F.Supp. 87,
94-95 (N.D.N.Y. 1994). See also Miller v. Eby Realty Group, 241 F.Supp.2d 1247, 1255-57 (D. Kan. 2003) (employer's withdrawal of offer of severance payments beyond those to which employee already due, after employee informed employee he had hired an attorney to investigate age discrimination, was not an adverse action). Cf. Flannery v. Recording Industry Ass'n of America, 354 F.3d 632, 641-43 (7th Cir. 2004) (holding that former employer's denial of consulting work to former employee after former employee filed charge with EEOC, where that work had been promised him in severance package agreed to by parties, sufficient to state retaliation claim under ADA and ADEA); Bernstein v. The St. Paul Cos., Inc., 134 F.Supp.2d 730, 733-34, 741 (D. Md. 2001) (holding that a jury could find retaliation where the employee had been unconditionally promised a certain amount of severance pay but was then told that he could only receive the pay if he withdrew his charge filed with the EEOC and released the employer from other claims, which he refused to do).E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490, 502 (6th Cir. 2006).
In contrast, in those cases where an employee has engaged in protected activity under Title VII, and then is confronted with a severance package which is expressly conditioned upon the withdrawal of EEO claims or foregoing rights under Title VII, courts have entertained retaliation charges. U.S. E.E.O.C. v. Lockheed Martin Corp., 444 F. Supp. 2d 414, 419 (D. Md. 2006). Likewise, the nature of the employee's pre-existing right to the severance benefit withheld may be relevant to any Title VII retaliation analysis since, "an employer may offer an additional severance payment in exchange for a release of any claims under the retaliation statutes and a promise not file suit against the employer. See SunDance, 466 F.3d at 502. An employer may not, however, withhold standard employee benefits because an employee has refused to waive his rights under the anti-discrimination statutes. See Bernstein v. The St. Paul Cos., Inc., 134 F.Supp.2d 730, (D. Md. 2001)." E.E.O.C. v. Nucletron Corp., 563 F. Supp. 2d 592, 600 (D. Md. 2008) (emphasis added).
D. Title VII's Exhaustion Requirement
Plaintiffs like Haaijer must also satisfy Title VII's administrative exhaustion requirements as a prerequisite to bringing suit. That administrative exhaustion requirement limits plaintiffs to the litigation of those claims which they properly presented and exhausted before the administrative agency. As the Court of Appeals has explained:
A plaintiff bringing an employment discrimination claim under Title VII must comply with the procedural requirements set forth in 42 U.S.C. § 2000e-5. Before filing a lawsuit, a plaintiff must exhaust her administrative remedies by filing a timely discrimination charge with the EEOC. Id. §§ 2000e-5(b), (e)(1), (f)(1). The EEOC will then investigate the charge, and the plaintiff must wait until the EEOC issues a right-to-sue letter before she can initiate a private action. Burgh v. Borough Council, 251 F.3d 465, 470 (3d Cir. 2001). The ensuing suit is limited to claims that are within the scope of the initial administrative charge. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). "The purpose of requiring exhaustion is to afford the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, avoiding unnecessary action in court." Id. After a charge is filed, "the scope of a resulting private civil action in the district court is 'defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination....' " Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir. 1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)); see also Antol, 82 F.3d at 1295; Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984).Barzanty v. Verizon PA, Inc., 361 F. App'x 411, 413-14 (3d Cir. 2010).
On occasion, employers have sought to dismiss hostile workplace claims like those advanced here by Haaijer, arguing that these claims were not properly presented to the administrative agency. Courts have adopted a pragmatic approach to the resolution of such exhaustion claims. Thus, courts eschew reliance upon any particular terms of art to state a hostile workplace claim. For example, "[i]n Anjelino v. New York Times Co., 200 F.3d 73, 94-95 (3d Cir. 1999), [it was] held [that] a hostile work environment claim was within the scope of an initial EEOC charge because it alleged the plaintiff was subjected to an 'abusive atmosphere,' a phrase which is interchangeable with 'hostile work environment.' " Barzanty, 361 F. App'x at 414. Thus, a worker need not use any particular magic words to state such a claim at the administrative level, and the administrative complaint should be construed as a whole in a common-sense fashion. Adopting this approach to exhaustion issues, what is often deemed crucial in assessing whether an administrative complaint described a hostile work environment is whether the administrative claim "provided notice to the EEOC that the termination arose from ongoing issues." Lowenstein v. Catholic Health E., 820 F. Supp. 2d 639, 645 (E.D. Pa. 2011).
It is against these legal benchmarks that we assess Haaijer's hostile work environment, and retaliation claims.
E. Haaijer Should be Directed to Provide a More Definite Statement of Her Retaliation Claim.
Turning first to Haaijer's Title VII retaliation claim, as we have noted this claim seems to be supported by two somewhat contradictory factual narratives in Haaijer's complaint. At the outset, the operative well-pleaded facts supporting this claim are as follows:
13. On September 14, 2017, the Plaintiff was called to the office of her manager and informed that she was terminated because the Defendant was in the process of "reorganization".(Doc. 1, ¶¶ 13-17.)
14. Following her termination the Plaintiff was offered a severance package from the Defendant that included a financial payment in excess of $17,000.00.
15. However, for the Plaintiff to receive said payment and other benefits under the severance package she had to sign a waiver stating that she would forego any claims under Title VII and other federal and state discrimination laws and that she was not subject to sexual or age discrimination.
16. The Plaintiff informed the Defendant that she would accept the severance package, but would not agree to waive her rights under Title VII and other federal and state discrimination laws and that she was not subject to sexual or age discrimination.
17. In retaliation the Defendant refused to pay the Plaintiff her severance package because she refused to sign the waiver and/or release. The Defendant retaliated against the Plaintiff because she would not agree to the Defendant's attempt to insulate itself from legal action for its unlawful termination of the Plaintiff based upon her age and sex.
Fairly construed, these well-pleaded facts appear to simply describe a scenario in which Haaijer was offered a severance package conditioned upon a waiver of claims. This conditional severance offer, standing alone, is not facially retaliatory. E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490, 501 (6th Cir. 2006); E.E.O.C. v. Nucletron Corp., 563 F. Supp. 2d 592, 597 (D. Md. 2008). Further, when Haaijer declined to sign this severance agreement, it is alleged that Omnova declined to pay the severance. Once again, this action, by itself, typically would not amount to an adverse employment action in the retaliation context. E.E.O.C. v. SunDance Rehab. Corp., 466 F.3d 490, 502 (6th Cir. 2006) (citing Davis v. Precoat Metals, 328 F.Supp.2d 847, 849, 852-53 (N.D. Ill. 2004)); Barriera v. Bankers Trust, No. 98 Civ. 3641, 2003 WL 22387099, at *8 (S.D.N.Y. Oct. 20, 2003); Hansen v. Vanderbilt Univ., 961 F.Supp. 1149, 1153 (M.D. Tenn. 1997); Jackson v. Lyons Falls Pulp & Paper, Inc., 865 F.Supp. 87, 94-95 (N.D.N.Y. 1994).
However, Haaijer's complaint later recites a different factual narrative, one in which the denial of her severance may be causally linked to her assertion of rights under Title VII. As Haaijer later alleges:
37. When the Plaintiff was terminated she informed her employer that she believed that she was subject to discrimination because of her age and gender.
38. In turn, the Defendant provided her a severance package, but required her to sign documents wherein she would waive any and all claims of discrimination.
39. Male employees were not required to sign similar waivers in order to receive their severance package.(Id., ¶¶ 37-40.) Thus, this second recounting of Haaijer's termination seems to allege that her employer made the payment of severance contingent upon her waiver of Title VII claims only after she asserted that she had been discriminated against based upon her gender. This second recital casts any retaliation claim in an entirely different light, since any allegation that this demand for waiver of EEO rights and claims in Omnova's severance proposal came after Haaijer had asserted or exercised her rights would describe a circumstance in which a Title VII retaliation claim might lie. U.S. E.E.O.C. v. Lockheed Martin Corp., 444 F. Supp. 2d 414, 419 (D. Md. 2006).
40. When the Plaintiff demanded that the language be removed from the severance agreement the Defendant refused to provide her with her severance package in retaliation for making such a claim.
In its current form, Haaijer does not reconcile these two different narratives in her complaint, thus creating an inherent ambiguity relating to a matter of pivotal importance to her retaliation claim. When presented with these obstacles to an informed understanding of the plaintiff's claims, the court may, sua sponte, order the plaintiff to file a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure in order to clarify the plaintiff's claims. See, e.g., Kyeame v. Buchheit, No. 1:07-CV-1239, 2011 WL 3651369, at *1 (M.D. Pa. Aug. 18, 2011); MFS, Inc. v. Twp. of South Annville, No. 1:05-CV-1371, 2006 WL 3254535, at *7 (M.D. Pa. Nov. 9, 2006); see also Moore's Federal Practice, § 12.36 (Matthew Bender 3d ed.) ("Because of its potential usefulness ... courts will occasionally order a more definite statement sua sponte, which they have the freedom to do"); Fikes v. City of Daphne, 79 F.3d 1079, 1082-83 (11th Cir. 1996) (finding that a more definite statement can tighten a complaint and clarify which of several possible claims are being asserted).
In a case such as this, where the plaintiff's claims cannot be clearly understood, and seem to rest on two conflicting factual narratives, Rule 12(e) of the Federal Rules of Civil Procedure provides, in part, that the court may order a party to prepare "a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Further, under this rule "[i]f the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order." Fed. R. Civ. P., Rule 12(e).
Here, we find that this particular complaint aptly:
[H]ighlight[s] the particular usefulness of the Rule 12(e) motion for a more definite statement. Under Rule 12(e), [the court may order] a more definite statement "[i]f a pleading ... is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed.R.Civ.P. 12(e). . . . . When a complaint fashioned under a notice pleading standard does not disclose the facts underlying a plaintiff's claim for relief, the defendant cannot reasonably be expected to frame
a proper, fact-specific . . . defense. . . . . The Rule 12(e) motion for a more definite statement is perhaps the best procedural tool available to the defendant to obtain the factual basis underlying a plaintiff's claim for relief.Thomas v. Independence Twp., 463 F.3d 285, 301 (3d Cir. 2006)
Given the legal ambiguity of the plaintiff's retaliation claims, and the uncertain factual grounds upon which these claims appear to rest, we believe that the plaintiff should be required to provide a more definite statement of these claims before the court assesses the legal merits of these alleged claims and engages in an extended exegesis, analyzing claims whose legal and factual elements remain uncertain. Therefore, it is recommended that the plaintiff also be directed pursuant to Rule 12(e) to submit a more definite statement of these claims.
F. Haaijer's Hostile Work Environment Claim is Not Subject to Dismissal on the Pleadings.
While we find that Haaijer's spare pleading style makes this a close question, we submit that Haaijer has pleaded sufficient facts to allow her hostile work environment claim to proceed forward. Considering the sufficiency of the pleading on its merits, we note that the complaint describes a series of alleged incidents, spanning a period of a year or more, in which Haaijer alleges that she was singled out for unfavorable and disparate treatment based upon her gender. These alleged episodes include instances in which she was excluded from work meetings, denied work opportunities, and prevented from learning of potential promotions. Haaijer then alleges that this pattern of behavior culminated in her unjustified termination. (Doc. 1, ¶¶ 20-36.)
Recognizing that " 'a plaintiff may establish that an employer has violated Title VII by proving that discrimination based on sex created a hostile or abusive work environment,'" Jones, 796 F.3d at 328 (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)), provided the plaintiff demonstrates that the sexual harassment in the workplace was "sufficiently severe or pervasive," Id. (quoting Vinson, 477 U.S. at 67), we find that Haaijer's allegations, taken as a whole, state a viable hostile workplace claim. On this score, in order "[t]o survive a motion to dismiss a hostile work environment claim based on sex discrimination, [a plaintiff is] required to establish that (1) she suffered intentional discrimination 'because of' her gender; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person in the same position; and (5) the existence of respondeat superior liability. See Andrews, 895 F.2d at 1482; see also Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 715 (3d Cir. 1997) (describing an actionable hostile work environment claim as alleging 'sufficient severe or pervasive' conditions)." Betz v. Temple Health Sys., 659 F. App'x 137, 142 (3d Cir. 2016).
Here, the facts, as alleged by Haaijer, describe a prolonged pattern of disparate and disparaging treatment. While Omnova may argue that these incidents are not sufficiently pervasive or severe to support a hostile workplace claim, we are mindful of the fact that a determination of pervasiveness or severity of workplace conduct often entails weighing the facts since, in undertaking such an assessment, "[w]e must consider all the circumstances, including the frequency of the conduct, its severity, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether the conduct unreasonably interfered with the employee's work performance. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)." Rosati v. Colello, 94 F. Supp. 3d 704, 716 (E.D. Pa. 2015). Such evaluations typically cannot be undertaken on a motion to dismiss, where we are limited to a consideration of the quality of the pleadings, and not the sufficiency of the evidence. Therefore, in this case, accepting the well-pleaded facts as true, as we must do at this stage of the proceedings, we find that the plaintiff has adequately alleged a pattern of pervasive and severe gender-based discrimination to allow this claim to proceed forward.
While we regard this as a close case, we also conclude that Haaijer's administrative complaint sufficiently stated a hostile workplace claim. While the focus of that complaint was undeniably upon her termination, that administrative complaint also described a pattern of on-going gender-based discrimination, stating that:
Once I was terminated I began to understand why certain actions had happened prior to September 14, 2016. A number of younger male
employees who had the same or less experience and education as myself were given positions that I would be able to fill. The Employer hired certain younger male employees to positions that I was eligible to fill. In essence, for a period of at least one year prior to my termination the Employer failed to offer me or make available several jobs for which I was eligible to fill. It needs to be noted that all employees who were given positions as part of the reorganization were male and younger than myself. 1 have since learned that one other female employee was terminated from her employment as part of the reorganization and was not provided an opportunity to bid on other jobs.(Doc. 21-2, p. 1.)
While Omnova asserts that Haaijer failed to exhaust her hostile workplace claim by properly presenting it to the administrative agency, adopting a pragmatic approach to the resolution of this issue, we find that in her administrative complaint Haaijer essentially alleged that she was subjected to an "abusive atmosphere," a phrase which is interchangeable with "hostile work environment." Barzanty, 361 F. App'x at 414. We further find that Haaijer's assertion that "for a period of at least one year prior to my termination the Employer failed to offer me or make available several jobs for which I was eligible to fill," was sufficient to state a hostile workplace claim since it "provided notice to the EEOC that the termination arose from ongoing issues." Lowenstein v. Catholic Health E., 820 F. Supp. 2d 639, 645 (E.D. Pa. 2011). Therefore, while this claim could have been asserted with far greater clarity, this hostile workplace claim should not be dismissed for failure to exhaust.
G. Haaijer's Common Law Wrongful Termination Claim Should be Dismissed.
Finally, in her complaint Haaijer attempts to bring a Pennsylvania common law claim for wrongful termination. The factual allegations in support of this claim, however, consist of nothing more than the alleged acts of discrimination which support Haaijer's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the companion state statute, the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. § 951, et seq.
Omnova has moved to dismiss this common law claim, arguing that this state law claim is preempted by the more specific provisions of the PHRA. For her part, Haaijer has not responded to this aspect of the motion, and thus may be deemed to have waived this claim. Spencer v. Varano, No. 3:17-CV-2158, 2018 WL 3352655, at *1 (M.D. Pa. July 9, 2018) (citing Sikkelee v. Precision Airmotive Corp., 2011 WL 1344635 (M.D. Pa. 2011) (dismissing claims as unopposed when the plaintiff failed to respond to arguments made by the defendants in support of their motion to dismiss)).
In any event, this claim fails on its merits since it is well-settled that:
The PHRA preempts parties from bringing common law claims for wrongful discharge based on claims of discrimination. Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917, 918 (1989); 43 P.S. § 962(b). The PHRA also preempts common law claims for breach of contract when the only act that would support the common law claim is the act of discrimination. DiFlorio v. Nabisco Biscuit Co., 1995 WL 355580 at *2 (June 9, 1995) (citing Keck v. Commercial
Union Ins. Co., 758 F.Supp. 1034 (M.D. Pa. 1991)); Brennan v. National Telephone Directory Corp., 850 F.Supp. 331, 345 (E.D. Pa. 1994); Schweitzer v. Rockwell Int'l, 402 Pa. Super. 34, 586 A.2d 383 (1990). See also Sola v. Lafayette College, 804 F.2d 40, 43 (3d Cir. 1986) (noting that the PHRA preempts state law claims alleging discriminatory conduct, Third Circuit addressed but did not decide whether PHRA preempted plaintiff's claim for breach of express contract).King v. M.R. Brown, Inc., 911 F. Supp. 161, 168 (E.D. Pa. 1995).
Therefore, this common law wrongful termination claim is preempted by the PHRA and should be dismissed.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the Defendants' motion to dismiss the plaintiff's complaint (Doc. 18) be GRANTED IN PART AND DENIED IN PART as follows: IT IS RECOMMENDED THAT the motion be GRANTED with respect to the plaintiff's common law wrongful termination claim, (Doc. 1, Count IV.) IT IS FURTHER RECOMMENDED that the plaintiff be directed to file a more definite statement of her retaliation claim, pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. Finally, IT IS RECOMMENDED that the motion to dismiss be DENIED in all other respects.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
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.
Submitted this 18th day of December, 2018.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge