McNeil v. Penn Warehousing & Distribution, Inc., CIVIL ACTION No. 20-1775

SHANETTE MCNEIL, Plaintiff, v. PENN WAREHOUSING AND DISTRIBUTION, INC., et al., Defendants.

CIVIL ACTION No. 20-1775

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

May 13, 2021

Goldberg, J.

MEMORANDUM OPINION

Plaintiff Shanette McNeil has brought sixteen claims against her employer Defendant Penn Warehousing & Distribution, Inc. for harassment, discrimination, retaliation, and retaliatory harassment on the basis of race pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1968 ("Title VII"), and the Pennsylvania Human Relations Act ("PHRA"); discrimination, failure to accommodate, retaliation, and retaliatory harassment on the basis of pregnancy pursuant to Title VII, the Pregnancy Discrimination Act, and the PHRA; and retaliation and retaliatory harassment pursuant to the Family and Medical Leave Act ("FMLA").

Plaintiff alleges the following facts regarding Defendant's racially-motivated conduct, (Am. Compl., ¶¶ 11, 16-36, 60-64):

• Plaintiff is an African American woman, currently employed by Defendant.

• In January 2019, Plaintiff's co-worker, Brianna Sireci, called her a racial slur (the "n-word") in front of her manager, Josh Pinson. Pinson told Sireci that her language was inappropriate. Plaintiff did not report this incident because she was not part of the union yet and did not want to cause any problems.

• Later that day, Floor Supervisor Aleah Miller, approached Plaintiff and asked her what had happened with Sireci. Plaintiff told Miller that Sireci had referred to her as an n-word. Miller stated that she would handle the matter.

• Later that day, Plaintiff walked by Sireci's grandmother, Donna Errigo, who also works for Defendant. Plaintiff heard Errigo state, "I don't understand, they call each other [n-word] all of the time," to someone on the phone.

• On several occasions after that day, Sireci and Errigo both called Plaintiff a "bitch" several times as she walked by them. Sireci also began bragging about getting away with calling Plaintiff an n-word.

• After several months of continued harassment, Plaintiff reported Sireci and Errigo's conduct to General Foreman Donna Hamilton. Hamilton told Plaintiff that she should excuse Sireci's conduct because Sireci had memory issues.

• Plaintiff was dissatisfied with Hamilton's response, so she reported Sireci and Errigo's harassment to Office Administrator John Jones. Plaintiff followed up by submitting a written statement to Jones.

• In July 2019, after Plaintiff reported Sireci and Errigo's conduct to Jones, Sireci and Errigo followed Plaintiff into the parking lot and, when Plaintiff was within earshot, Errico loudly stated that she "hated people from certain backgrounds" but did not want to say the n-word and "get another complaint."

• As Defendant had failed to address the harassment that Plaintiff previously reported, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on August 6, 2019.

• In October of 2019, Plaintiff was assigned to work with Sireci twice. Sireci spent both days rolling her eyes and snickering at Plaintiff. Plaintiff reported Sireci's behavior to Hamilton and Jones. On one occasion, Plaintiff and Sireci were separated, and on the other occasion, Plaintiff was told not to worry about it and was left in the assignment to endure Sireci's behavior. Errigo and Sireci also continued to harass Plaintiff despite allegedly being advised not to speak with her.

Plaintiff alleges the following additional facts regarding Defendant's conduct motivated by her pregnancy, (Id. at ¶¶ 37-38, 48-59):

• Plaintiff learned that she had a high-risk pregnancy in August 2019 and informed Defendant.

• When Plaintiff was visibly pregnant, Errigo purposefully bumped into her while they passed each other walking through the restroom. Plaintiff reported this harassment to Jones.

• In September 2019, Plaintiff was assigned to handle tire pressure, which required her to squat and release pressure from tires. Plaintiff asked why she was assigned to handle tire pressure because she had never been assigned that task and had not been trained on how to do that job.

• Manager Alexis Cantwell showed Plaintiff how to handle tire pressure, and, while watching Plaintiff squat to relieve air from the tire, asked how far along her pregnancy was.

• The air released from the tires made Plaintiff dizzy, which she reported to Union Representative, James Mack.

• Another female employee who was Caucasian was pregnant and was never assigned to handle tire pressure and was also permitted to take naps during the day, which Plaintiff was not permitted to do. The Caucasian pregnant employee had never complained about racial harassment or retaliation.¹

Plaintiff also asserts that in August 2019, she applied for FMLA leave due to her high-risk pregnancy and, again, in September or October 2019, due to her son's medical conditions, including asthma, allergies, and eczema. (Id. at ¶¶ 41-42.)

Plaintiff claims that before filing complaints with the EEOC, reporting her co-worker's alleged harassment to Defendant, and applying for FMLA leave, Plaintiff had "never been disciplined by Defendant, either verbally or in writing," and had "never been called into the office for contemplation of discipline." (Id. at ¶¶ 43-44.) Plaintiff alleges that after engaging in these protected activities, Defendant "began issuing verbal and written discipline to Plaintiff, including for absences related to her medical needs," and "began calling her into the office regularly in contemplation of issuing discipline, including for absences related to her medical needs." (Id. at ¶¶ 45-46.) Plaintiff also asserts that on one occasion, Defendant called her into the office and asked "if she still wanted her job." (Id. at ¶ 47.)

Based on these allegations, Plaintiff filed claims with the EEOC and Pennsylvania Human Relations Commission ("PHRC") on August 6, 2019 and September 30, 2019.² Plaintiff amended her second charge on February 10, 2020. On February 11, 2020, the EEOC issued notice of Plaintiff's right to sue. On April 3, 2020, Plaintiff filed the original Complaint and, thereafter, an amended complaint on August 6, 2020. Defendant now seeks to dismiss all claims in the Amended Complaint, except Plaintiff's hostile work environment claim (Count I).

For the following reasons, I will grant in part and deny in part Defendant's motion.

I. LEGAL STANDARD

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must "contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard requires more than a "sheer possibility that a defendant has acted unlawfully." Id. Conclusory allegations do not suffice. Id. To determine the sufficiency of a complaint under Twombly and Iqbal, a court must (1) "tak[e] note of the elements a plaintiff must plead to state a claim"; (2) identify the allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth"; and (3) "where there are well-pleaded factual allegations, . . . assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Burtch v. Milberg Factors, Inc., 662F.3d 212, 221 (3d Cir. 2011) (internal quotation marks omitted). Courts must construe the allegations in a complaint "in the light most favorable to the plaintiff." Id. at 220.

When deciding a motion to dismiss, '"courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record."' Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

II. ANALYSIS

A. Exhaustion of PHRA Claims

Defendant first seeks to dismiss Plaintiff's PHRA claims (Counts X, XI, XII, XIII, and XIV), arguing that Plaintiff has failed to exhaust her administrative remedies. Defendant contends that at the time the original Complaint was filed in April 2020, Plaintiff had failed to give the PHRC one year to investigate the administrative complaint as required by 41 Pa. Cons. Stat. § 962(c). Courts in the Third Circuit have adopted a flexible approach to PHRA exhaustion (1) by permitting plaintiffs to maintain PHRA claims if the one-year deadline expires during litigation, see, e.g., Wardlaw v. City of Phila., No. 09-3981, 2011 WL1044936, at *3 (E.D. Pa. Mar. 21, 2011), or (2) by dismissing a plaintiff's PHRA claims without prejudice and granting leave to amend the complaint following the one-year anniversary of the date on which the PHRC was notified of the plaintiff's complaint. See, e.g., McGovern v. Jack D's, Inc., No. 03-5547, 2004 WL 228667, at *8 (E.D. Pa. Feb. 3, 2004). Here, the one-year deadline applicable to Plaintiff's PHRA claims has expired during litigation, i.e., on February 10, 2021. Thus, on this issue, Defendant's motion is denied.

B. Timeliness of Title VII Claims

Defendant next argues that Plaintiff's Title VII claims (Counts V, VI, VII, VIII, and IX) must be dismissed as untimely because Plaintiff did not bring such claims within ninety days of receiving a right to sue letter from the EEOC. Defendant asserts that the first time Plaintiff brought such claims was in the Amended Complaint, almost 180 days after Plaintiff received notice of her right to sue.

While Plaintiff's Title VII claims were brought beyond the ninety-day limit, I conclude that they relate back to the timing of the original Complaint, which was filed within the ninety-day period. See Chan v. Barbour, Inc., 263 F. Supp. 3d 521, 524-5 (E.D. Pa. 2017). Pursuant to Federal Rule of Civil Procedure 15(c), "[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that...