Burton v. Pennsylvania Board of Probation & Parole, Civil Action No. 02-2573 (E.D. Pa. 6/13/2002)

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JAMES BURTON Plaintiff, v. PENNSYLVANIA BOARD OF PROBATION & PAROLE, et al. Defendants.

Civil Action No. 02-2573.

United States District Court, E.D. Pennsylvania.

June 13, 2002.

MEMORANDUM

LOWELL A. REED, JR., Senior Judge.

Plaintiff James Burton ("Burton") filed this lawsuit against the Pennsylvania Board of Probation & Parole ("the Board"), Edward Jones ("Jones") and Daniel Solla ("Solla") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Pennsylvania Human Relations Act, 43 Pa.C.S. § 951, et seq., The Civil Rights Act of 1866, 42 U.S.C. § 1981, as well as state tort law. Burton alleges that he was retaliated against, subjected to a hostile work environment, and constructively discharged from his position because of his race. Presently before the Court is the motion of defendants to dismiss (Document No. 6), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, as well as the response thereto. Plaintiff contends that the complaint states each claim as required under the Federal Rules and in the alternative requests leave of Court to amend the complaint. For the reasons which follow, the motion will be granted in part with leave to amend one dismissed claim and denied in part.¹

I. Background²

Burton is a Black male who was hired by the Board in or about December, 1990. In or about January, 1997, he was promoted to Parole Supervisor. From approximately January, 2000 until his alleged constructive discharge in March, 2001,³ Burton was the only Black male in that position. (Compl. ¶ 7.) Solla is the Deputy Director at the Board and was Burton's immediate Supervisor. Jones is the Director of the Board.

On May 10, 2000, plaintiff underwent angioplasty surgery. (Id. ¶ 14.) In or about August, 2000, Solla issued an unwarranted written reprimand of plaintiff for failing to follow-up on a case which blocked him from consideration of future potential promotions. (Id. ¶ 9.) White supervisors were allegedly not disciplined for the same infraction. (Id.)

Plaintiff asserts without reference to specific dates that "at one point" he was assigned almost twice the number of cases as compared to his co-workers. (Id. ¶ 10.) When he discussed his concern over this uneven case assignment with Solla, Solla responded by giving Burton the "most problematic" cases. (Id. 11.) No approximate date is alleged with respect to this conversation. Burton asserts, again without reference to dates, that Solla would (1) discipline Burton as of right without first discussing his performance informally; (2) not provide the same one-on-one supervision that he offered to the other supervisors, and would place post-it notes on the door (presumably to Burton's office) if Burton was more than one minute late to work in the morning while White Supervisors were not similarly rebuffed. (Id. ¶ 12(a)-(c).)

In October 2000, Burton spoke with Solla concerning a tee-shirt "frequently" worn by a Board Agent⁴ which read: "Officer Danny Faulkner was murdered by Mumia Abu-Jamal who shouldn't be in an 8 x 10 foot cell. He should be 6 feet closer to hell."⁵ (Id. at 13.) Burton explained to Solla that this shirt was offensive to many Black employees, particularly when it was worn while advising parolees. (Id.) Solla responded that there was nothing wrong with the tee-shirt and would not tell the employee he could not wear the tee-shirt to work. (Id.)

Plaintiff filed a complaint with the Pennsylvania Human Relations Commission on January 19, 2001 and received his right to sue letter on December 31, 2001. Burton's state charge of discrimination was forwarded to the EEOC, and plaintiff was notified of the dual filing on February 28, 2001. Burton filed this action in state court on or about March 30, 2002, and defendants removed the case on April 29, 2002.

II. Standard

Rule 12(b) of the Federal Rules of Civil Procedure provides that "the following defenses may at the option of the pleader be made by motion:. . . (6) failure to state a claim upon which relief can be granted." In deciding a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969). Because the Federal Rules of Civil Procedure require only notice pleading, the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).

A motion to dismiss should be granted if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). In considering a motion to dismiss, the proper inquiry is not whether a plaintiff will ultimately prevail, but rather whether a plaintiff is permitted to offer evidence to support its claims. See Children's Seashore House v. Waldman, 197 F.3d 654, 658 (3d Cir. 1999) (citation omitted). The moving party bears the burden of showing that the non-moving party has failed to state a claim for which relief can be granted. See Gould Elec. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). While all facts in the complaint must be accepted as true, this Court "need not accept as true unsupported conclusions and unwarranted inferences." Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 184 (3d Cir. 2000), cert. denied, 121 S.Ct. 2000 (2001) (citations omitted).

III. Analysis

I note at the outset that employer liability under the PHRA follows the standards set out for employer liability under Title VII. See Knabe v. Boury Corp., 114 F.3d 407, 410 n. 5 (3d Cir. 1997). The legal standard for a section 1981 case is likewise identical to the standard in a Title VII case. See Lewis v. University of Pittsburgh, 725 F.2d 910, 915 n. 5 (3d Cir. 1983); Bullock v. Children's Hosp. of Philadelphia, 71 F. Supp.2d 482, 485 (E.D.Pa. 1999). Thus, I will analyze Burton's claims only under Title VII below; however, my analysis and conclusions are equally applicable to his claims of discrimination in violation of the PHRA and Section 1981.⁶

A. Hostile Work Environment Claim

Hostile work environment harassment is actionable under Title VII and occurs when "the conduct in question [is] severe and pervasive enough to create an `objectively hostile or abusive work environment — an environment that a reasonable person would find hostile — and an environment the victim-employee subjectively perceives as abusive or hostile.'" Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001) (Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993)). The following factors guide this Court in determining whether such a claim has been stated: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; whether it unreasonably interferes with an employee's work performance." Id. (quoting Harris, 510 U.S. at 23, 114 S.Ct. at 371).

Plaintiff alleges that: (1) he was issued an unfounded written reprimand which blocked any opportunity for a future promotion; (2) he was given substantially more work than the White Supervisors, and that his assignments included the most problematic cases; (3) his Supervisor humiliated him by placing post-it notes on his door if he was only one minute late for work while White Supervisors were not similarly rebuffed; (4) he was disciplined without first following informal discussion procedures; (5) Solla did not extend him the same kind of one-on-one supervision that he offered to the White Supervisors; (6) Solla refused to take action and prevent another employee from wearing an anti-Mumia tee-shirt that Burton and other Black employees found offensive, despite the fact that Burton discussed the offensive nature of the tee-shirt directly with Solla.

In support of his claim, Burton presents in his response memorandum only conclusory arguments without ever applying the specific alleged incidents to the actual severe and pervasive standard. By way of example, this high standard has been held to have been met in a situation where over a seven year period Black employees were, inter alia, consistently referred to as "another one," "one of them," "that one there," "all of you," and hurled insults such as "don't touch anything," and "don't steal." See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996). This Court is quite cognizant of the fact that a hostile work environment claim is very fact-specific and therefore the allegations before me need not be precisely the same as the example offered. I present Aman as an illustration of the type of harm the severe and pervasive standard is meant to address. Burton fails to allege any similarly flagrantly abusive conduct. His allegations are rather in the nature of disproportionate work assignments and unfair reprimands. The tee-shirt incident, even if legally offensive, is an isolated incident. I therefore conclude that the accusations contained in the complaint fail as a matter of law to amount to a hostile or abusive work environment. See, e.g., Stone v. West, 133 F. Supp.2d 972, 987 (E.D.Mich. 2001) (isolated offensive comments, vague complaints of being given more onerous work assignments and a dispute concerning the proper designation of vacation and sick time off do not amount to a hostile work environment); Kahn v. Dep't of Treasury, No. Civ. A. 98-2652, 1999 WL 1220765, at *1, *3 (E.D.La. Dec. 20, 1999) (unfair evaluations, delayed leave request, additional work assignments and change in work assignment area, as well as isolated reprimand fail to constitute abusive work environment).

I therefore grant the motion of defendants to dismiss this claim; however, I will grant leave to plaintiff to cure the defects noted...