Opinion
Civil Action 21-1596
01-18-2023
MELINDA MARKOVICH, Plaintiff, v. UNION RAILROAD COMPANY, LLC, Defendant.
REPORT AND RECOMMENDATION
Patricia L. Dodge United States Magistrate Judge
I. Recommendation
It is respectfully recommended that Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 40) be denied.
II. Report
Plaintiff Melinda Markovich (“Markovich”) brings this action against her former employer, Union Railroad Company, LLC (“URR”). She asserts claims of sex and age discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (ADEA), and the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (PHRA), arising out of the termination of her employment as a union clerk.
Currently pending before the Court is URR's motion to dismiss the Second Amended Complaint. For the reasons that follow, its motion should be denied.
A. Relevant Procedural History
Markovich filed this action on November 5, 2021 and amended the Complaint on February 14, 2022 (ECF No. 19). The Amended Complaint alleged that URR violated her rights under the ADEA, Title VII and the PHRA. Subject matter jurisdiction is based on the federal civil rights claims, 28 U.S.C. §§ 1331, 1343(a)(4); 29 U.S.C. § 626(c)(1), and supplemental jurisdiction is asserted over the related state-law claim, 28 U.S.C. § 1367(a).
URR subsequently moved dismiss the Amended Complaint (ECF No. 22) for two reasons. First, it contended that subject matter jurisdiction was lacking because Markovich's claims were preempted by the Railway Labor Act (“RLA”). It also contended that she failed to state a claim upon which relief could be granted. On June 8, 2022, a Report and Recommendation (“R&R”) was issued (ECF No. 29) that recommended that URR's motion be denied.
On July 28, 2022, Judge Horan issued a Memorandum Opinion and Order (ECF Nos. 34, 35), that adopted the R&R in part and rejected it in part. Specifically, Judge Horan adopted the R&R with respect to its analysis regarding the RLA, but concluded that “Ms. Markovich's Amended Complaint does not contain adequate allegations that she was treated differently than similarly situated male and younger employees.” (ECF No. 34 at 3.) Judge Horan indicated that Markovich “must set forth some factual detail beyond bare conclusory allegations to show how other employees were treated more favorably to survive the present motion to dismiss.” (Id. at 4.) Judge Horan therefore granted the motion to dismiss without prejudice and allowed Markovich to further amend her claims.
Markovich filed a Second Amended Complaint (“SAC”) (ECF No. 37) on August 11, 2022. URR has moved to dismiss the SAC (ECF No. 40), which has been fully briefed (ECF Nos. 41, 43).
B. Factual Background
The SAC alleges that Markovich, who is 63 years old, worked for URR from 1998 until February 11, 2020. She last held the position of Head Clerk. (SAC ¶¶ 3, 13.) She asserts that, over the course of her 22-year tenure, she was an exemplary employee and frequently received praise, met all of the necessary performance metrics and maintained a zero-demerit record. (Id. ¶¶ 14-15.)
URR's demerit policy was created to provide a uniform structure to address employee rule and policy violations in a consistent and fair manner. According to URR, the policy serves as a tool to assure rule compliance while offering employees the opportunity to correct poor behavior and facilitate additional training where necessary. The demerit policy is used to manage employee discipline for offenses such as tardiness, safety violations and misuse of carrier property. Under this policy, managers may use informal coaching in lieu of formal discipline (demerits) for minor violations and have significant discretion with respect to the number of demerits assessed if they elect to issue them. If a manager elects to issue demerits, the maximum number of demerits that can be assessed for a single violation is 60. Employees who reach 100 demerits over time are subject to termination. URR's policy includes a provision for the removal of demerits from an employee's personnel records if the employee does not accrue additional demerits in the 12, 24 and 36 months following his or her last offense. (Id. ¶¶ 8-12.)
Markovich was taken out of service on January 17, 2020 after a two-week investigation regarding her whereabouts on December 16 and 17, 2019 and December 19 through 29, 2019. Markovich states that she was not in her office on the days in question but worked from home at the direction and approval of her supervisor, Darren Beasock (“Beasock”). Unbeknownst to her, Beasock had not been truthful to senior management and Human Resources about directing and approving Markovich's remote work arrangement. Around the time of an investigation into this issue, Beasock texted Markovich, instructing her to lie to Human Resources by stating that during the dates in question she was working off site in another building on the property. (Id. ¶¶ 16-19.)
According to the SAC, Markovich instead made the decision to be honest, a decision which she characterizes as honorable yet fateful. On Friday, January 17, 2020, Markovich told URR's human resources and labor relations representatives that she was working from home and was directed to do so by her supervisor. Markovich was immediately taken out of service. She received two charge letters for the same alleged violation, was assessed a total of 200 demerits and was ultimately terminated. According to Markovich, issuing 200 demerits violated the company's demerit policy. (Id. ¶¶ 20-22.)
In its brief, URR states that Markovich “lied to human resources about her whereabouts at the behest of a supervisor and that, well into the resulting investigation, she eventually came clean.” (ECF No. 41 at 5.) That is not what the SAC alleges, however.
URR contends that this allegation is entirely belied by its demerit policy, which indicates that the infractions Markovich was accused of committing made her subject to immediate dismissal. (ECF No. 41 at 7 n.5.) URR cites its demerit policy, which was attached to the previous motion to dismiss the Amended Complaint but was not attached to the current motion. The Court need not resolve this dispute, however, because Markovich's allegation that she was subjected to more serious discipline than a similarly situated younger male employee is sufficient to withstand the motion to dismiss.
Markovich alleges that, in addition to deviating from its policies and procedures regarding the number of demerits that can be issued, URR assessed more demerits to her than male and younger employees who had committed similar or more egregious offenses, particularly with regard to intentional misrepresentations and lack of integrity. She alleges that URR acted willfully and in reckless disregard of her rights under the ADEA when it targeted her with excessive demerits because they falsely believed that due to her age, she was or would be unable to perform the essential functions of his job, when, in fact, she was able to perform the essential functions of her job at all relevant times. (Id. ¶¶ 23-25.)
Markovich further alleges that URR acted willfully and in reckless disregard of her rights under Title VII when it disciplined her with a disproportionately higher number of demerits and other discipline, including but not limited to termination, than male employees who had committed similar or more egregious offenses. (Id. ¶ 26.)
Markovich specifically cites the example of Gary Manges, a male employee in his 40s, who backed a truck into a pole and repeatedly lied about it in the investigation before telling the truth about what happened. Although Manges was subject to the same disciplinary policies as Markovich, no action was taken against Manges. However, Manges' supervisor, Joseph Hughes, was fired for directing Manges to lie in the investigation. By contrast, Markovich was terminated and neither Beasock nor Joel Hudson, the General Manager, suffered disciplinary action even though both of them directed Markovich to lie. (Id. ¶¶ 27-30.)
C. Discussion
1. Standard of Review
URR's motion is governed by Rule 12(b)(6), which provides that a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible,” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged.
2. Age and Sex Discrimination
Title VII prohibits discrimination in employment “because of sex” and the ADEA prohibits discrimination on the basis of age against employees over the age of 40. 42 U.S.C. § 2000e-2(a); 29 U.S.C. § 623(a). The PHRA also prohibits these forms of discrimination. 43 P.S. § 955(a).
At trial or in response to a motion for summary judgment, a plaintiff alleging employment discrimination must first make out a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). This usually involves a showing that the plaintiff belongs to the protected class, was qualified for the position and was subjected to an adverse employment action under circumstances that raise an inference of discrimination. Id. See also Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003). The same analysis is used for PHRA claims. See Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998) (ADEA); Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000) (Title VII).
However, 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.”); Connelly v. Lane Const. Corp., 809 F.3d 780, 791 (3d Cir. 2016) (plaintiff was not required “to establish a prima facie case, much less to engage in the sort of burden-shifting rebuttal that McDonnell Douglas requires at a later stage in the proceedings.”)
URR argues that Markovich's claims should be dismissed for failure to state a claim upon which relief may be granted. It contends that the SAC fails to plead any facts that would tie Markovich's dismissal to her age or her gender. Specifically, it argues, she points to no discriminatory statements, does not allege that she was replaced by a younger employee or a male employee and merely states in a conclusory manner that male or younger employees received fewer demerits than she did.
URR also argues that Markovich “attempts to circumvent the RLA” and “notes” that it contends that all of Markovich's claims are preempted by the RLA. (ECF No. 41 at 3 n.4.) As URR acknowledges, however, Judge Horan rejected this argument when URR raised it previously. URR sets forth no basis for revisiting that issue now and the Court will not do so.
URR made these arguments when moving to dismiss the Amended Complaint, which alleged generally that Markovich was treated more severely than younger male employees. In the SAC, however, Markovich has identified Manges, a younger male employee who backed a truck into a pole and repeatedly lied about it in the investigation before telling the truth about what happened. She alleges that, although Manges was subject to the same disciplinary policies as she was, no action was taken against Manges.
At several points in its brief, URR notes parenthetically that Manges was younger “but still over age 40.” The Supreme Court has held that “the fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case.” O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996). Similarly, the fact that Manges was “in his 40s” does not preclude Markovich's ADEA claim and obviously has no bearing on her Title VII claim. See Oransky v. Rite Aid, Inc., 2015 WL 732892, at *12 (E.D. Pa. Feb. 20, 2015) (defendant argued that plaintiff could not cite comparators who received better treatment but who were over age 40, but the court rejected this argument because they were still “substantially younger” than plaintiff).
URR states at several points in its brief that the incident involving Manges was “unrelated to” Markovich. (ECF No. 41 at 3, 5, 8.). There is no requirement under these antidiscrimination statutes that a comparator's incident be “related” to that of a plaintiff, however, only that the comparator be similarly situated yet treated differently.
URR cites Ross v. Borough of Dormont, 937 F.Supp.2d 638 (W.D. Pa. 2013). In that case, the plaintiff was demoted to a patrolman after engaging in certain conduct for which other police officers received favorable treatment. As noted by the Court,
These facts, however, do not establish that Plaintiff was replaced by a sufficiently younger person to permit an inference of age discrimination. In fact, these facts do not address who replaced Plaintiff ... after he was demoted at all. Moreover, Plaintiff has failed to plead how old these other officers are, under what circumstances they received favorable treatment, when, or by whom. Merely stating that they received favorable treatment simply does not permit the inference that Plaintiff was discriminated against because of his age when he was demoted.Id. at 651 (footnote and some citations omitted).
Ross is distinguishable from the facts pleaded by Markovich, however. She alleges that Manges, a younger employee who was subject to the same disciplinary policies as she was, lied during an investigation, just as she did, but received more favorable treatment.
URR again cites a non-precedential case in which the Third Circuit stated that “the allegation in the complaint that a ‘substantially younger' person was hired does not give rise to an inference of discrimination. Not only is it simply a bare contention, ‘substantially younger' is a legal conclusion, not a factual allegation on which an inference could be based.” Cauler v. Lehigh Valley Hosp., Inc., 654 Fed.Appx. 69, 72 (3d Cir. 2016). However, as this Court previously stated, in a precedential opinion subsequently issued in 2021, the Third Circuit concluded that whether a replacement is “significantly younger” is a factual allegation, not a legal conclusion. See Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021).
Markovich asserts that she has met the requirements of pleading a discrimination claim by providing the “how, when and where” of the discriminatory acts. See Fowler v. UPMC Shadyside, 578 F.3d 208, 212 (3d Cir. 2009). In Fowler, the plaintiff alleged that she was injured at work and her employer regarded her as disabled within the meaning of the Rehabilitation Act. When she applied for another position for which she was qualified but was not selected, she asserted that UPMC's actions were based on her disability. Id. at 206. The Third Circuit had “no trouble finding that Fowler has adequately pleaded a claim for relief under the standards announced in Twombly and Iqbal.” Id. at 212. See also Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (noting that the Supreme Court has expressly “disavow[ed]” the requirement that a plaintiff plead “specific facts.”).
URR cites a case in which the court granted a motion to dismiss an ADEA claim because the plaintiff did not allege any facts that suggested that he met the employer's performance standards or that his termination was otherwise unwarranted. Drummer v. Trustees of Univ. of Pennsylvania, 286 F.Supp.3d 674, 682 (E.D. Pa. 2017). Here, by contrast, Markovich alleges that the demerits she received were unwarranted because she had permission to work remotely from her supervisor, who then instructed her to lie about her whereabouts.
Markovich states that she received more demerits than Manges, a similarly situated younger male employee who engaged in similar conduct by committing an infraction and then lying about it during the investigation. While Manges was not disciplined, Markovich was terminated. As such, she has stated a claim that she was treated disparately based on her sex and age.
III. Conclusion
For these reasons, it is respectfully recommended that URR's motion to dismiss be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by February 1, 2023. Any party opposing the objections shall file a response by February 15, 2023. Failure to file timely objections will waive the right of appeal.