Opinion
No. 2:17-cv-01173-CRE
08-13-2018
ROBERT D. JOHNSON, Plaintiff, v. ALLEGHENY COUNTY AND ITS BUREAU OF CORRECTIONS AND ALLEGHENY COUNTY PRISON EMPLOYEES INDEPENDENT UNION, ORLANDO HARPER, Warden Allegheny County Jail, and JOHN WILLIAMS, Major of the Guard Allegheny County Jail, Defendants.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the motions to dismiss filed by defendant Allegheny County Prison Employees Independent Union ("Union") (ECF No. 20) be denied, and the motion to dismiss filed by Allegheny County and Individual Defendants (ECF No. 22) be granted as to the request for punitive damages and denied in all other respects.
II. REPORT
A. Procedural History
Plaintiff's initial complaint was filed on September 20, 2017 (ECF No. 3) and upon being granted leave his amended complaint was filed on December 20, 2017. (ECF No. 16). Plaintiff Robert D. Johnson, an African-American male alleges that his employment of over 15 years as an Allegheny County Jail (the "Jail") corrections officer ("C.O.") was terminated in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e et seq. 42 U.S.C. § 1983, as well as the Pennsylvania Human Relations Act, 43 P.S. §§ 3951 et seq. (the "PHRA"). Johnson has sued his former employer, Allegheny County ((including the Jail warden, Orlando Harper, and a supervisor, Major John Williams) (collectively, "the Individual Defendants")), and the Union pursuant to the National Labor Relations Act, as amended, 29 U.SC. §§ 141-197 (the "NLRA").
On January 16, 2018, the Union filed a motion to dismiss (ECF No. 20), and on January 17, 2018 the County and Individual Defendants filed their motion to dismiss. (EC No. 23). The matter has been fully briefed and is ripe for consideration.
B. Applicable Legal Principles
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). A well-pleaded complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Id. at 556, 127 S.Ct. 1955. However, a complaint must provide "enough fact [s] to raise a reasonable expectation that discovery will reveal evidence of" the necessary element. Id. at 556, 127 S.Ct. 1955. The Court of Appeals has made clear that after Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: 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." Id. at 210-11, quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994).
With this framework in mind we now summarize the allegations of the Amended Complaint.
C. Factual Allegations as Alleged in Amended Complaint (ECF No. 16)
Johnson began employment with defendant employer, Allegheny County Jail, on or about July 30, 2001 as a C.O. (ECF No. 16 at ¶ 18). His compensation upon the date of his termination (August 11, 2016), was an hourly rate of $32.00, with benefits. (ECF No. 16 at ¶18). From the date Johnson's employment began, up through July 2015, Johnson's job performance and reviews were excellent. Johnson did not receive a single disciplinary action from his date of employment up through the date of on or about an alleged violation of August 2, 2015. (ECF No. 16 at ¶ 19).
On August 2, 2015 Johnson was disciplined for an alleged incident which occurred when Johnson arrived for his shift at the guard's booth, at which time Johnson discovered that his schedule which formerly had him working at the guard booth had been changed. Johnson went to the Union representative on duty to speak about this issue. Johnson was then confronted by fellow Correction Officer David Younkins ("Younkins"), a white male. At this point Younkins became verbally abusive, irate, and aggressive towards Johnson. Younkins later revealed to Johnson that his attack was because of Johnson's race. (ECF No. 16 at ¶ 20).
As a result of this incident Johnson was placed on a one year last chance written Agreement ("LCA") dated August 11, 2015 . (ECF No. 16 at ¶ 21). It stipulated that if Johnson were to become involved in another disciplinary event involving violation of Jail's Code of Conduct or work rules, that he would be terminated immediately. The white employee, Younkins, was not required to sign a last chance agreement in order to keep his job. (ECF No. 16 at ¶ 21). Johnson opposed agreeing to this statement, but nonetheless signed it under duress, having felt threatened with losing his employment. (ECF No. 16 at ¶ 22). Johnson went through the grievance process with the Union in order to reverse this discipline; the process was unsuccessful. (ECF No. 16 at ¶ 22).
Johnson alleges that the Union grievance process is a sham operation. Collusion among Warden Harper, Major Williams, and Union Steward Corrections Officer R. Conner operate to determine the outcome of grievance hearings so that persons and classes of persons favored by the management/Union "cabal" receive lesser discipline and preferential treatment in comparison to those like plaintiff, who are discriminated against. (ECF No. 16 at ¶ 23).
On July 8, 2016 the Jail alleged that Johnson violated the last chance agreement as a result of an alleged incident which occurred with fellow C.O. Christina Leech ("Leech"), a black female. Leech was working the security desk examining visitors' purses and belongings, while Johnson worked the electronic scanner on the opposite side of the desk at the visitor entry area. (ECF No. 16 at ¶ 24). Because this alleged incident was within Johnson's one year final warning (last chance) write up, the Jail terminated Johnson's employment on August 11, 2016, the last day of his last chance agreement. (ECF No. 16 at ¶ 25).
The Jail claimed its decision to terminate Johnson was justified as a result of security video recordings it obtained and in its possession. The Jail claims that the video shows inappropriate behavior exhibited by Johnson toward Leech in the area of Jail where Johnson operated the visitor scanner machines. (ECF No. 16 at ¶ 26). However, according to Johnson, that video recording demonstrates that Johnson did not act inappropriately: he never touched Leech, he did not even attempt to do so, and he did not verbally abuse or threaten her. (ECF No. 16 at ¶ 27).
Johnson expressed his grievances with the Union in regard to this incident; however, this grievance was denied at all levels. (ECF No. 16 at ¶ 28). This included meetings he characterizes as "allegedly grievance hearings" before Major Williams and Warden Harper. Additionally, the Union refused to take Johnson's charge to arbitration. (ECF No. 16 at ¶ 28).
Johnson alleges that his employment was terminated solely as a result of the incidents between himself and Leech and the previous incident with Younkins; the termination, he alleges, was racially motivated and was in retaliation for Johnson's filed grievance complaints. (ECF No. 16 at ¶ 31). Johnson alleges that other white and/or females C.O.s who are disciplined, suspended, or terminated have had their grievances more aggressively pursued and have had their disciplinary actions reversed or reduced at a greater rate than black male correction officers. (ECF No. 16 at ¶ 33). Johnson also alleges that Union officers and stewards are complicit in this discriminatory pattern (ECF No. 16 at ¶ 43) and that the defendants have conspired and acted in concert to create a sham system of grievance hearings wherein persons like himself are not afforded meaningful due process and instead, the outcomes of the hearings are predetermined to benefit employees who are favored by the Jail administration and the Union co-conspirators, including employees who are having sexual liaisons with Jail management and/or Union representatives (ECF No. 16 at 59).
Count I alleges employment discrimination pursuant to Tile VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e) et seq. against the County and the Union, specifically alleging disparate treatment based upon his race and gender, a violation of duty of fair representation, and that the parties were acting on concert. Count II alleges retaliation against the Jail and the Union. Count III alleges violations of 42 U.S.C. § 1983 (specifically denial of due process and equal protection for failure to provide a fair and meaningful hearing), as well as a conspiracy to deny his constitutional rights, as to defendants Jail, Union, and the individual defendants. Count IV alleges violations of state law pursuant to PHRA as to all defendants.
D. Discussion
Notice
The Union seeks dismissal of the amended complaint because plaintiff failed to state or preserve an employment discrimination charge against it under Title VII and the PHRA, citing 42 U.S.C. § 2000e-5(b). Important to our analysis is that there is no allegation that plaintiff did not receive a right to sue letter from the EEOC, nor that the Union was not listed as a party before the EEOC prior to its issuance of the right to sue letter. See ECF No. 16-2 at 1. Rather, the union argues that because a wrong address was provided to and/or used by the EEOC, the Union never received actual notice of the charge of discrimination within ten days of the filing of the charge as required by statute and that it was prejudiced thereby. It does not explain how it would be prejudiced.
The jurisdictional prerequisites to a Title VII claim are (1) the filing of charges with the EEOC and (2) receipt of the EEOC's notice of the right to sue. Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir.1976). Plaintiff has satisfied both requirements. As courts have held for decades, "[a] Title VII complainant is not charged with the commission's failure to perform its statutory duties." Russell v. American Tobacco Co., 528 F.2d 357, 365 (4th Cir.1975); see also Evans v. Maax-KSD Corp., No. 06-2804, 2006 WL 3488708, at *3 (E.D. Pa. Nov.30, 2006) ("While it is a well-established tenet of administrative law that a Title VII or ADA plaintiff must exhaust his administrative remedies before seeking judicial relief, it is equally well-established that such a plaintiff is also 'not charged with the [EEOC's] failure to perform its statutory duties.' ... Because the statutory scheme places the responsibility on the EEOC, not a plaintiff, to issue a notice of a charge to an employer, the EEOC's failure to do so does not bar Plaintiff from seeking judicial relief.") (citations omitted); Watson v. Magee Womens Hospital, 438 F. Supp. 581, 584 (W.D. Pa.1977) ("While the EEOC failed to notify defendant within the ten-day period, we can see no justification for denying a private individual access to federal court because of a delay on the part of a governmental agency.") (citations omitted); see also McClease v. R.R. Donnelley & Sons Co., 226 F. Supp. 2d 695, 704 (E.D. Pa. 2002).
Accordingly, it is respectfully recommended that the motions to dismiss be denied and that plaintiff may pursue a claim under Title VII.
Timeliness
Next the Union and the County both argue that certain charges are time-barred. Under Title VII, plaintiff must file his charge with the EEOC within 300 days of the alleged adverse employment action. See 42 U.S.C. § 2000e-5(e)(1). Plaintiff filed his EEOC charge on December 8, 2016; 300 days from the date of that charge is February 13, 2016. Defendants take issue with an allegation made at paragraphs 20 and 21 of the Amended Complaint, wherein plaintiff asserts that on August 2, 2015 he was disciplined because of a confrontation with a fellow C.O., resulting in him being placed on the one-year LCA dated August 11, 2015. The defendants argue any claims involving the August 2, 2015 disciplinary action are time-barred because Johnson must have filed his charge with the EEOC within three hundred days of the alleged adverse employment action.
In response, plaintiff acknowledges "he is not suing over what happened to him in August 2015, but over his discharge in August 2016." (ECF No. 29 at 7). This is what is alleged in the complaint. (ECF No. 16 at 9). He explains the reference to the August 2015 incident is included as a part of a continuing pattern of discriminatory conduct, and even so, any request to remove references to that incident can be addressed by motion in limine at trial. Because there is no dispute that plaintiff seeks recourse arising from his termination on August 11, 2016, it is respectfully recommended that the motion to dismiss on this basis be denied.
Retaliation
The Union and the County next argue that Johnson failed to state a claim for retaliation/ To plead a case of retaliation under Title VII, Plaintiff must show (1) he engaged in protected activity; (2) his employer took an adverse employment action against him; and (3) there is a causal connection between his participation in the protected activity and the adverse employment action. Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006). A plaintiff's retaliation claim will survive a motion to dismiss if the plaintiff "pleads sufficient factual allegations to raise a reasonable expectation that discovery will reveal evidence" of the prima facie elements. See Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016).
In addition to the allegations described supra, Johnson has alleged:
49. Defendant Employer discriminately disciplined Johnson in the form of a retaliatory response, by dismissing Johnson from his employment without good cause, and refusing to reinstate Johnson because Johnson questioned and complained about unfair racial and gender discrimination.
50. Johnson complained to his supervisors that corrections officers who were white or female were not disciplined as severely as African-American males like himself, and were retained by the Jail and were advanced and protected by the Union. During the grievance process in 2015 and 2016, Johnson complained to Union representatives that he had been discriminated against. (ECF No. 16 at 12). Johnson was terminated August 15, 2016. (ECF No. 16 at ¶ 25). The amended complaint contains a sufficient factual narrative tying the plaintiff's workplace grievances with examples of protected activity in a way that permit the defendants to answer the allegations. It is therefore respectfully submitted that the motion to dismiss be denied as to the retaliation claims.
To the extent the Union argues that it filed a grievance for plaintiff and that it negotiated an offer of reinstatement subject to the suspension and extension of the LCA, and that plaintiff refused the officer, this argument relies on matters outside the pleadings and therefore will not be addressed at this time.
Conspiracy
The Union and the County argue that Johnson has failed to state a claim for conspiracy against them, having failed to allege specific fact to show an agreement to act in concert with others when the decision to terminate plaintiff was made. Defendants argue that Johnson set forth only a conclusion of law without sufficient facts to support an agreement between defendants to support a claim of conspiracy. In order to state a conspiracy claim under §1983, a plaintiff must show that two or more conspirators reached an agreement to deprive her of a constitutional right under color of state law. Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir. 1993). Johnson has alleged that the disciplinary system for the C.O.s at the Jail includes collusion between the union and Jail management and that the grievance process is a sham. He has identified at least one Union official involved as well as results of other disciplinary proceedings which expose how he was treated unfairly. (ECF No. 16 at ¶¶ 23, 33, 34). He has also alleged that the general counsel to the Union has participated in the Jail's refusal to show the video of plaintiff alleged to show his inappropriate conduct. (ECF No. 16 at 57-59). He further alleges that the Union was not justified in refusing to appeal his discharge grievance to arbitration. (ECF No. 16 at 28). The court will decline to consider matters outside the pleadings, specifically, the affidavit of Jason Batykefer, at this juncture because we are not permitted to do so, as explained above, when considering a motion to dismiss. The allegations are sufficient to support plaintiff's claim, and it is respectfully recommended that the motion to dismiss on the ground of failure to state a claim be denied.
In addition, the union argues that the § 1983 claims against it should be dismissed because it is not a state actor. Plaintiff concedes the Union is not a state actor but, citing Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) argues that a § 1983 claim may be brought against a non-state actor who are alleged to have conspired with a state actor to violate his civil rights. The law is clear that a conspiracy must be made up of two or more state actors, or at least one state actor with a private party deemed to be a state actor. Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir.1993).
It is therefore respectfully recommended that the Union's motion to dismiss the conspiracy claim on the grounds that it is not a state actor be denied.
Monell
The County argues that plaintiff has failed to adequately allege that a policy or custom of the County violates a constitutional right and that therefore the section 1983 claim based upon the Fourteenth Amendment should be dismissed.
In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that a municipality may be held liable under 42 U.S.C. § 1983 for a constitutional injury that directly resulted from a municipality's policy, custom, or practice. Id. at 695, 98 S.Ct. 2018. Accordingly, a Monell claim seeks to impose municipal liability for a constitutional injury that was causally connected to a municipal policy, custom, or practice. See id.; see also Carreno v. City of Newark, 834 F.Supp.2d 217, 231 (D.N.J. 2011). "Under Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees." Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). Instead, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018). It is essential to a Monell claim that there be a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation" in order to establish municipal liability. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
Plaintiff has alleged that the County, through its interactions with Jail management and the Union, have set up a sham grievance and disciplinary system such that it constitutes a custom or policy that violates section 1983 and the Fourteenth Amendment. He has alleged certain incidents and disciplinary matters which involved County employees which if proven could constitute an official custom or policy and which could have resulted in the alleged constitutional injuries. (ECF No. 16 at ¶¶ 23, 33, 34) After a review of the amended complaint it is apparent that resolution of the ultimate merits of any Monell claim will require examination of matters beyond the pleadings, a task which cannot be undertaken at this time in the context of a motion to dismiss.
Therefore, it is respectfully recommended that the motion to dismiss the Monell claim be denied.
Punitive Damages
Finally, the County argues that plaintiff may not recover punitive damages from it or the individual defendants sued in their official capacities under Section 1983, Title VII or the PHRA. Plaintiff concurs. (ECF No. 30 at 9). It is therefore respectfully recommended that the County's motion to dismiss the claim for punitive damages be granted in part as to the request for punitive damages.
III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that the motion to dismiss filed on behalf of defendant Allegheny County Prison Employees Independent Union ("Union") (ECF No. 20) be denied, and the motion to dismiss filed by Allegheny County and Individual Defendants (ECF No. 22) be granted as to the request for punitive damages and denied in all other respects.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties shall have fourteen (14) days to file written objections. Failure to timely file objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge Dated: August 13, 2018 cc: all parties via CM-ECF