Opinion
Civil Action 21-1596
06-08-2022
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 First Amended Complaint (ECF No. 22) 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. For the reasons that follow, its motion should be denied.
A. Relevant Procedural History
Markovich filed this action on November 5, 2021, naming as defendants URR, as well as Transtar, LLC (“Transtar”) and United States Steel Corporation (“U.S. Steel”), both of which were alleged to be parent corporations of URR. Subsequently, she amended the Complaint to eliminate Transtar and U.S. Steel. The Amended Complaint alleges 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).
On March 7, 2022, URR filed a motion to dismiss (ECF No. 22) which has been fully briefed (ECF Nos. 23, 28).
B. Factual Background
The Amended Complaint alleges that Markovich, who is 62 years old, worked for URR from 1998 until February 11, 2020. She last held the position of Head Clerk. (Am. Compl. ¶¶ 3, 13; ECF No. 19.) She asserts that, over the course of her 22-year tenure, she was an exemplary employee and frequently received praise. She 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 as well as to 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.
Instead, Markovich 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. ¶¶ 16-22.)
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. 23 at 4.) While that may be URR's contention, that is not what the Amended Complaint alleges.
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.)
C. Discussion
1. Standard of Review
URR first argues that Markovich's claims are preempted and precluded by the Railway Labor Act, 45 U.S.C. §§ 151-65 (RLA), an issue that challenges the Court's subject matter jurisdiction to adjudicate this case. Federal Rule of Civil Procedure 12(b)(1) provides the relevant standard of review regarding this argument. See Marsh v. Union R.R. Co., LLC., 2021 WL 4459764, at *10 (W.D. Pa. Sept. 29, 2021).
The Supreme Court has explained that state-law claims that require interpretation of a collective bargaining agreement would be “preempted” while claims based on other federal laws would be “precluded,” but the analysis is essentially the same. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 259 n.6 (1994).
A Rule 12(b)(1) motion to dismiss addresses “the very power [of the court] to hear the case.” Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). “As the party asserting jurisdiction, [the plaintiff] bears the burden of showing that its claims are properly before the district court.” Development Fin. Corp. v. Alpha Hous. & Health Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995).
There are two types of Rule 12(b)(1) motions: those that attack the complaint on its face and those that attack subject matter jurisdiction as a matter of fact. When considering a facial attack, “the Court must consider the allegations of the complaint as true,” and in that respect such a Rule 12(b)(1) motion is similar to a Rule 12(b)(6) motion. Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006). In this case, URR is making a factual attack and has submitted extraneous evidence, the authenticity of which Markovich has not challenged. Therefore, it may be reviewed. See Malobabich v. Norfolk Southern Corp., 2011 WL 1791306, at *1 (W.D. Pa. May 10, 2011).
URR also asserts that Markovich has failed to state a claim upon which relief may be granted. This issue 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.
In ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint, exhibits attached thereto, and matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). In addition, “a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). URR has attached to its motion to dismiss some of the documents relating to the events that give rise to the Complaint: the Collective Bargaining Agreement (CBA) between URR and the union representing the employees; the Demerit Policy; and two letters sent to Markovich (each assessing her with 100 demerits) terminating her employment. (ECF No. 22 Exs. 1-4.) Markovich has not challenged the authenticity of these documents and the Complaint can be said to be based on them. See Marsh v. Union R.R. Co., LLC, 2021 WL 4459764, at *10 (W.D. Pa. Sept. 29, 2021) (examining the CBA and demerit policy when URR filed the same motion as it has in this case). Therefore, they may be considered without converting the motion to dismiss to a motion for summary judgment.
On the other hand, URR quotes from the letters to justify its actions. This is inappropriate, as the gravamen of the Amended Complaint is that the discipline Markovich received and resulting termination was a pretext for unlawful age and sex discrimination.
2. RLA Preemption
The RLA establishes the National Railroad Adjustment Board (“NRAB”) for purposes of “judicial review,” 45 U.S.C. § 153, and provides that arbitration will be the mechanism for the “orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreement covering rates of pay, rules, or working conditions,” id. §§ 151a, 157.
The Supreme Court has observed that “the RLA establishes elaborate administrative procedures for the resolution of both major and minor labor disputes.” Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562 (1987). “A minor dispute is a dispute over the interpretation or application of existing collective bargaining agreements.” United Transp. Union v. Conemaugh & Black Lick R.R. Co., 894 F.2d 623, 628 (3d Cir. 1990). “Minor disputes initially must be dealt with through a railroad's internal dispute resolution processes, and if not settled there, may be submitted to a division of the Adjustment Board, or to a Public Law Board, which is an arbitration board chosen by the parties. Judicial review of these Boards' determinations has been characterized as “‘among the narrowest known to the law.'” Buell, 480 U.S. at 563 (citations omitted).
“A major dispute is a dispute over proposals to change rates of pay, rules or working conditions.” Id. That provision is not relevant to this case.
In Buell, the Supreme Court rejected a railroad's argument that a plaintiff's claims under the Federal Employers' Liability Act arising out of harassment by his fellow employees were precluded by the “minor dispute” section of the RLA. The Court noted that it had repeatedly rejected the contention that individual employees are barred from bringing claims under federal statutes simply because of the availability of arbitration established through the collective bargaining process. It also explained that “the theory running through these cases is that notwithstanding the strong policies encouraging arbitration, ‘different considerations apply where the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.'” Id. at 565 (quoting Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 737 (1981)). See also Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994) (state-law claim under whistleblower act was not preempted by RLA because the rights and obligations existed independent of the CBA); Blakely v. USAirways, Inc., 23 F.Supp.2d 560, 568 (W.D. Pa. 1998) (the Supreme Court “consistently has concluded that the RLA minor dispute resolution machinery does not displace separate federal statutory rights granted to individual workers.”)
Numerous cases have similarly rejected the preemption argument when employees brought suit under federal laws that provided rights independent of CBAs and did not require interpretation of the CBA to resolve. See Whitmore v. National R.R. Passenger Corp., 510 F.Supp.3d 295, 303 (E.D. Pa. 2020); Hukman v. U.S. Airways/Am. Airlines, 2018 WL 11377172, at *1 n.2 (E.D. Pa. Mar. 20, 2018) (claims not preempted when the “dispositive question” underlying the discrimination suit was whether airline took particular actions because of the plaintiff's national origin); Jackson v. United Airlines, Inc., 32 F.Supp.3d 557, 565 (E.D. Pa. 2014) (intentional age discrimination claims involved rights that existed independently of the CBA and were not preempted). See also Norris, 512 U.S. at 261 & n.8; Carmona v. Southwest Airlines Co., 536 F.3d 344, 349 (5th Cir. 2008).
URR relies on Malobabich v. Norfolk Southern Corp., 2011 WL 1791306 (W.D. Pa. May 10, 2011). In that case, Judge McVerry concluded that a railroad worker's claims of age discrimination under the ADEA and PHRA and his claim of intentional infliction of emotional distress arising out of his failed bids to obtain other jobs were preempted by the RLA. Judge McVerry found that the plaintiff was not challenging the motives of the railroad, but was “facially challeng[ing] the CBA seniority rules as violative of the ADEA,” a claim that the court found was “inextricably intertwined with and requires interpretation of the CBA.” Id. at *3.
More recently, Judge Colville distinguished the holding in Malobabich as follows:
Yet the allegations in Malobabich differ from those in the Amended Complaint. Here, Marsh takes issue with the demerits that were assessed and maintained against him under the CBA and the Railroad's disciplinary rules and policies, as well as his termination, but his central claim is this was part of a pretextual scheme to terminate Railroad employees over age 40 on the basis of their age in violation of the ADEA. The motives of the Railroad are challenged. Given the
nature of his claims herein, we will deny the motion to dismiss on the grounds of preemption.Marsh, 2021 WL 4459764, at *12.
In this case, Markovich's claims do not require an interpretation of the CBA. Rather, Markovich alleges that URR had discriminatory motives in applying its demerit policy less favorably to her than to younger and male comparator employees. Therefore, her claims are not preempted or precluded by the RLA.
3. Failure to State a Claim
URR also argues that Markovich's claims should be dismissed for failure to state a claim upon which relief may be granted. It contends that the Amended Complaint 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 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, 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 responds that a discrimination complaint must provide the “how, when and where” of the discriminatory acts to properly state a claim. 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.”)
Further, the Third Circuit has stated that, in order to defeat a motion to dismiss, it is sufficient, but 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's allegations that she was the only female truck driver and was qualified but only six male truck drivers were recalled was sufficient to withstand a motion to dismiss, noting that she 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.”)
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).
Moreover, certain decisions cited by URR were decided on motions for summary judgment after a development of the record. See Abraham v. Brennan Postmaster Gen., 2020 WL 6151161, at *22 (W.D. Pa. Oct. 20, 2020); Dodson v. Coatesville Hosp. Corp., 773 Fed.Appx. 78, 80 (3d Cir. 2019). Here, the Court's review is limited to determining if, assuming the facts pleaded in the Complaint are true, Markovich has plausibly stated a claim.
Markovich states that she received more demerits that similarly situated male and younger employees who engaged in similar conduct, resulting in her termination, and as such, was treated differently based on her sex and age. Thus, she has alleged all that is necessary at this stage of the proceedings.
Even on a motion for summary judgment, URR's contention that Markovich could not state a prima facie case of discrimination is incorrect: “Nowhere did the [Supreme] Court describe the fourth element as hiring of (or, by implication, replacement by) a person outside the plaintiff's class.” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999).
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 June 22, 2022. Any party opposing the objections shall file a response by July 6, 2022. Failure to file timely objections will waive the right of appeal.