McGarrigle v. Cristo Rey Phila. High Sch.

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KATHRYN MCGARRIGLE v. CRISTO REY PHILADELPHIA HIGH SCHOOL

Civil Action No. 22-4713

United States District Court, E.D. Pennsylvania

April 17, 2023

MEMORANDUM

KEARNEY, J.

The President of a high school allegedly told the school's Chief Financial Officer in early March 2020 the faculty would not identify with or be able to talk to a later-fifties Caucasian woman then serving as the school's human resources director. The human resources director found out and complained to her supervisor and the school's general counsel shortly before COVID-19 mitigation closed the school. She heard nothing back from the school. The director next raised discrimination based on her white race, age, and gender three days before she took leave under the Family and Medical Leave Act in February 2021. She waited another forty-five days and allegedly filed a charge with the Equal Employment Opportunity Commission. An unpleaded person at the school fired her almost four weeks after learning of her charge explaining the school eliminated her position. But the school then hired a replacement over ten years younger than her. She now broadly alleges race, age, and gender discrimination and retaliation and the school violated the Family and Medical Leave Act. The school moves to dismiss. The director fails to plead facts providing the required notice necessary to proceed on many of her claims. We allow her to proceed on her retaliation claims under Title VII section 1981, the Philadelphia Ordinance, and the Age Discrimination in Employment Act. She may also move forward on her age discrimination claims. We dismiss her remaining claims without prejudice to amend if consistent with Rule 11.

I. Alleged Facts

Cristo Rey Philadelphia High School formerly employed fifty-nine-year-old Caucasian woman Kathryn McGarrigle as its Human Resources Director. We are now addressing issues arising after Cristo Rey's President John O'Connell told Ms. McGarrigle's direct supervisor Chief Financial Officer Maryanne Doyle in early March 2020 the school's “faculty would not be able to go to [Ms. McGarrigle] with problems because she is a middle-aged white woman and could not identify with them.”^[1] Supervisor Doyle shared President O'Connell's comment with Ms. McGarrigle.

Ms. McGarrigle told Supervisor Doyle she considered President O'Connell's comment to be racist, sexist, and ageist and she wished to file a formal complaint. Ms. McGarrigle also reported President O'Connell's comment to Joanna Wuisinich, Cristo Rey's in-house counsel. Cristo Rey did not have a policy or procedure for reporting discrimination or making a formal complaint of discrimination.

Cristo Rey closed for remote learning in mid-March 2020 under COVID-19 mitigation. Ms. McGarrigle and other Cristo Rey employees began working from home. No one at Cristo Rey addressed Ms. McGarrigle's complaint about President O'Connell's comment and no one told Ms. McGarrigle of resolving her concern.

Eleven months later, and three days before she took medical leave for an unidentified period, Ms. McGarrigle emailed President O'Connell on February 12, 2021 to complain about the comment he made about her to Supervisor Doyle eleven months earlier: “Your comment was discriminatory towards my race, age and gender. When my request for a meeting with you did not take place, I had follow-up conversations with [Supervisor Doyle] and [Counsel Wuisinich] requesting a resolution, but nothing came of it. At that point I have no recourse [sic], because there is no policy in place to address the process for this type of matter.”^[2] Ms. McGarrigle does not allege challenged conduct, hostility, harassment, or an adverse employment action between President O'Connell's alleged comments in early March 2020 and Ms. McGarrigle's February 12, 2021 email to President O'Connell.

Ms. McGarrigle began a medical leave under the Family and Medical Leave Act for an unidentified reason and unidentified length of time beginning February 15, 2021.

Ms. McGarrigle then filed the first of two charges with the Equal Employment Opportunity Commission forty-five days later. Her April 30, 2021 charge alleged discrimination on the basis of race, age, and gender.^[3] She did not plead the adverse employment action complained of to the Commission. She did not plead the complained of conduct to the Commission, including retaliation, hostile work environment, or any employment-based discrimination other than race, age, and gender-based discrimination. Ms. McGarrigle does not plead whether the Commission issued a right-to-sue letter following her April 30, 2021 charge.

President O'Connell and Cristo Rey received notice of her charge with the Commission on May 3, 2021. On May 26, 2021, an unidentified person at Cristo Rey terminated Ms. McGarrigle's employment while she remained on medical leave beginning on February 15, 2021. An unpleaded person explained Cristo Rey eliminated the Human Resources Director position as the reason for Ms. McGarrigle's termination.

But Cristo Rey hired an unidentified time a woman more than ten years' younger than Ms. McGarrigle to the Director of Human Resources position. Ms. McGarrigle does not allege the new employee's race.

Ms. McGarrigle filed a second charge with the Equal Employment Opportunity Commission on January 10, 2022 claiming age-based discrimination and retaliatory discharge, dual-filed with the Philadelphia Commission on Human Relations.^[4]

II. Analysis

Ms. McGarrigle sued Cristo Rey alleging race-based discrimination under 42 U.S.C. § 1981; discrimination in violation of Title VII,^[5] the Age Discrimination in Employment Act,^[6] the Family Medical Leave Act;^[7] and discrimination based on race, sex, and age under the Philadelphia Fair Practices Ordinance.^[8]

Cristo Rey moves to dismiss all claims.^[9] It argues Ms. McGarrigle fails to state a claim: (1) for race-based discrimination under section 1981; (2) for interference or retaliation claim under the Family and Medical Leave Act; (3) for race and sex-based discrimination under Title VII or the Philadelphia Fair Practices Ordinance; (4) for age discrimination under Age Discrimination in Employment Act; and (5) for retaliation under Title VII, the Age Discrimination in Employment Act, or the Philadelphia Ordinance.

A. Ms. McGarrigle does not plead intentional discrimination under section 1981.

Ms. McGarrigle claims Cristo Rey violated 42 U.S.C. § 1981 when it terminated her based on her Caucasian race. Congress in section 1981 provides: “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens ...”^[10]

To state a claim for race-based discrimination under section 1981, Ms. McGarrigle must allege: (1) she belongs to a racial minority; (2) an intent by Cristo Rey to discriminate on the basis of race; and (3) “discrimination concerning one or more of the activities enumerated” in section 1981.^[11] Cristo Rey argues Ms. McGarrigle fails to allege all three elements of a section 1981 claim.

We begin by addressing the first and third elements. Cristo Rey argues Ms. McGarrigle fails to meet the first element because she is white and not a member of a racial minority. We construe this as an argument Ms. McGarrigle cannot, as a matter of law, meet the first element because white people are not a racial minority. This is incorrect. Nearly fifty years ago, the Supreme Court ruled section 1981(a) prohibits discrimination in private employment on the basis of race, including racial discrimination against white persons.^[12] We do not adopt Cristo Rey's argument Ms. McGarrigle fails to meet the first element of a section 1981 claim.

The third element requires Ms. McGarrigle allege discrimination concerning “one or more of the activities enumerated” by section 1981, including the right to make and enforce contracts. Cristo Rey argues we must dismiss this claim because Ms. McGarrigle failed to allege an activity enumerated in the statute, particularly a failure to allege an employment contract with Cristo Rey. Cristo Rey fails to cite authority for this proposition. Although it appears our Court of Appeals has not definitively ruled on this issue, the weight of authority from district courts in our Circuit and from other courts of appeals hold the termination of an at-will employee based on race is actionable under section 1981.^[13] We see no reason to depart from the reasoning offered by Judges at the motion to dismiss stage. If we accepted Cristo Rey's argument, no at-will employee could ever challenge her termination for race-based discrimination under section 1981, a restriction on the statute's broad guarantee against discrimination on the basis of race passed after the Civil War. We decline to do so.

Cristo Rey fares better with its argument as to the second element of Ms. McGarrigle's section 1981 discrimination claim Ms. McGarrigle does not allege Cristo Rey intended to discriminate against her on the basis of Caucasian race. We agree. Ms. McGarrigle fails to allege facts allowing us to infer Cristo Rey intended to discriminate against her when it terminated her employment because she is Caucasian. Ms. McGarrigle argues she alleges termination motivated “by her age, race and/or her claims of age and race discrimination” but there are no such allegations in her Complaint, and she does not tell us where in her Complaint she did so.^[14] Ms. McGarrigle alleges only her termination “was motivated by [her] age and/or made in retaliation for [her] objecting to or opposing...