Opinion
CIVIL 3:20-CV-1936
08-01-2022
KENNETH RAMIREZ, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants.
MARIANI, JUDGE.
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE.
I. Introduction
This case has a tangled procedural history in that the plaintiff has twice filed essentially the same complaint in this court. Compare Ramirez v. Commonwealth, Civil No. 3:20-CV-1936 with Ramirez v. Commonwealth, 3:21-CV-1076. In an effort to create order out of this procedural chaos, this court has consolidated both of these essentially identical lawsuits into a single civil action, and we now turn to a merits consideration of this case. (Docs. 41, 42).
Pending before the court is a motion to dismiss the plaintiff's first amended complaint, as well as a motion to file a second amended complaint. (Docs. 17, 25). The plaintiff, Kenneth Ramirez, is a former Commonwealth employee who brought this action against the Commonwealth and several individual defendants, alleging violations of his right to free speech, substantive due process, and the Pennsylvania Whistleblower law. Ramirez's proposed second amended complaint seeks to add claims under Title VII of the Civil Rights Act of 1964 for race discrimination, retaliation, and a hostile work environment resulting in a constructive discharge from his employment.
For their part, the defendants have filed a motion to dismiss the first amended complaint, arguing that the plaintiff has failed to state a claim upon which relief can be granted. Further, the defendants oppose the motion to amend, arguing that the plaintiff had abandoned his race discrimination claim lodged in his initial complaint, and further, that the claims in the proposed amended complaint fail on their merits.
We note that following the filing of the first amended complaint in the instant case, the plaintiff filed a second case against the defendants, Ramirez v. Commonwealth of Pennsylvania, et al., No. 3:21-CV-1076, which lodged Title VII claims against the same defendants based on race discrimination, retaliation, and a hostile work environment-the same claims the plaintiff attempts to assert in his proposed second amended complaint. (See id., Doc. 10). The matter was referred to the undersigned, and we filed a Report and Recommendation which recommended that the two cases be consolidated, which was adopted by the district court. (Id., Doc. 14, 15).
After consideration, we conclude that the plaintiff's claims, both in the first amended complaint and proposed second amended complaint, fail on their merits. Moreover, we conclude that permitting leave to amend these claims would be futile. Accordingly, for the reasons that follow, we recommend that the plaintiff's motion to file a second amended complaint be denied, and that the motion to dismiss be granted.
II. Background
The factual background is taken from the plaintiff's amended complaint,which we must accept as true for purposes of this motion to dismiss.
Because we are addressing both the motion to dismiss the first amended complaint and the motion to amend, we will address the factual contentions in the proposed second amended complaint as well as the first amended complaint, the operative pleading at this juncture.
Kenneth Ramirez, a Hispanic and African American individual, was hired by the Commonwealth on October 21, 2018 as a therapist at Youth Forestry Camp #2 (“YFC#2”), which was operated by the Bureau of Juvenile Justice Services in the Commonwealth of Pennsylvania. (Doc. 25-1, ¶¶ 8, 26). YFC#2 is a juvenile detention and rehabilitation center. (Id., ¶ 34). Ramirez was hired to be a therapist at this facility, working one-on-one with the juveniles to rehabilitate their behavioral problems. (Id., ¶ 36). Ramirez asserts that his job duties required him to conduct therapy with the juveniles in a confidential environment, and YFC#2 had a room designated for this purpose. (Id., ¶¶ 37, 63).
Ramirez alleges that about three months into his employment, in January of 2019, he witnessed staff at YFC#2 engage in misconduct. (Id., ¶ 38). This misconduct included Defendant Kistler allegedly withholding meals from several juveniles because they had acted out. (Id.) He also alleges an instance in which Kistler yelled obscene rap lyrics in a juvenile's face, and then physically restrained the juvenile unnecessarily and without reason. (Id., ¶¶ 42, 44). Ramirez further alleges an instance in which a juvenile was tackled to the ground by counselors after obeying a directive. (Id., ¶ 47).
The complaint then avers that around January 2019, Ramirez contacted ChildLine to report the abuse he witnessed, as he was a mandated reporter under Pennsylvania Law. (Id., ¶¶ 49-50, 53). Ramirez believed that contacts to ChildLine were anonymous, but shortly after his report, Defendant Schwartzlander approached him and asked why he was making reports to ChildLine instead of his immediate supervisors. (Id., ¶¶ 55-58). Ramirez contends that Defendant Kistler's father was the person in charge of ChildLine, and thus infers that Kistler's father told the defendants that Ramirez had reported them for child abuse. (Id., ¶¶ 54, 60).
ChildLine is a toll-free hotline established by the Pennsylvania Department of Human Services that is available 24 hours per day, 7 days per week to receive reports of suspected child abuse. Pursuant to Pennsylvania's Child Protective Services Law, certain individuals are considered mandatory reporters and must report suspected child abuse to the Department of Human Services. See 23 Pa. Cons. Stat. § 6301 et seq.; See https://www.dhs.pa.gov/KeepKidsSafe/Resources/Pages/ChildLine.aspx (last visited July 28, 2022).
Ramirez then asserts that the defendants engaged in a pattern of retaliation against him beginning in February of 2019. (Id., ¶ 61). He alleges that prior to his reports of suspected abuse, he was able to freely use the confidential therapy room to conduct therapy with the juveniles, but after his reports, he was reduced to only one day per week. (Id., ¶¶ 62-64). He further asserts that Defendants Kistler and Kivak were in charge of scheduling, and instead of being able to perform his duties as a therapist, he was scheduled to essentially watch over the juveniles. (Id., ¶¶ 6567). Defendant Kistler was one of the counselors that Ramirez had reported to ChildLine. (Id., ¶ 69).
Ramirez then contends that on one occasion in June of 2019, he asked a Youth Development Aid if he could use the therapy room, and he was told that he could. (Id., ¶ 74). He reports that when he entered the room, Defendant Kivak entered shortly thereafter and stated, “you escaped,” and told Ramirez to go back to watch the juveniles instead of continuing his therapist duties. (Id., ¶ 76). Ramirez alleges that this comment was racially discriminatory, as the wording had “connotations of slavery associated with its use,” and Kivak is Caucasian while Ramirez is African American and Latino. (Id., ¶¶ 77-78). He also claims in a conclusory fashion that other Caucasian therapists made reports to ChildLine but were not stripped of their therapist duties. (Id., ¶¶ 72-73).
In October of 2019, while Defendant Kistler was explaining an incident that occurred between two juveniles, Kistler used Ramirez to demonstrate the incident. (Id., ¶ 79). Ramirez contends that he was physically assaulted by Kistler at this time. (Id., ¶ 81). According to the complaint, the day before this took place, Kistler and another employee confronted Ramirez about his reports to ChildLine. (Id., ¶ 83). Ramirez contends that he reported Kistler's conduct, but nothing was done in the way of an investigation or remedial measures. (Id., ¶¶ 85-86). Ramirez asserts that throughout the remainder of 2019, the defendants continuously interfered with his ability to use the therapy room and to complete his job duties. (Id., ¶ 87).
In May of 2020, Ramirez attended a staff meeting with Defendant Lennartz to discuss behavioral issues that were occurring with one of the juveniles in the facility. (Id., ¶¶ 88-89). In that meeting, Ramirez spoke up and stated that he believed the juvenile was acting out due to the abuse he was suffering at the facility. (Id., ¶ 90). He then alleges that Defendant Lennartz verbally accosted him about sticking up for the juveniles, so aggressively that another employee came to the office to see if everything was alright. (Id., ¶¶ 92-93). Ramirez asserts that he made his last call to ChildLine in June of 2020, and that the defendants continued to hinder his ability to perform his therapist duties. (Id., ¶¶ 95-96).
The complaint avers that Ramirez suffered stress and anxiety because of the situation at YFC#2, and that he informed the defendants of his disability. (Id., ¶ 97). Rather than offering an accommodation, he claims that he was told he could take disability leave. (Id., ¶¶ 98-99). Around July of 2020, Ramirez went on disability leave for two weeks, and he was diagnosed with depression, anxiety, and post-traumatic stress disorder. (Id., ¶¶ 101, 105-06). When he returned, he explained that he could no longer work at the YFC#2 facility because of the unlawful conduct that was occurring, and the defendants offered to switch his position with one of nine other positions that were available. (Id., ¶¶ 107-09). Ramirez asserts that eight of these nine positions would have resulted in a pay cut, and the ninth position at White Haven was only temporary, having been slated to close within two years. (Id., ¶¶ 109-10). Ramirez ended up taking the White Haven position, but ultimately resigned due to an incident, after which he had a flashback to the abuse that occurred at the YFC#2 facility. (Id., ¶¶ 113-15).
The complaint alleges that the Commonwealth never investigated Ramirez's complaints or took appropriate measures against the individuals committing the alleged abuse, such as Defendant Kistler. (Id., ¶ 112). In fact, Ramirez alleges that Kistler was given Ramirez's former position as a therapist following Ramirez's departure from YFC#2. (Id., ¶ 116). Ramirez contends that he was constructively discharged from his position on September 1, 2020, with the Commonwealth due to the stress and anxiety which caused him to ultimately resign his position. (Id., ¶ 115).
Thus, Ramirez filed the instant suit against the Commonwealth and Defendants Kistler, Lennartz, Kivak, and Schwartzlander on October 21, 2020, alleging claims of First Amendment retaliation, substantive due process, race discrimination, and a violation of the Pennsylvania Whistleblower law. (Doc. 1). The defendants filed a motion to dismiss, and Ramirez filed an amended complaint, which brought only claims of First Amendment retaliation, substantive due process, and the violation of the Whistleblower law. (Doc. 13). The defendants moved to dismiss the complaint, arguing that Ramirez had failed to state a claim upon which relief could be granted. (Doc. 17).
Ramirez then filed a motion to amend his complaint to assert claims of race discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act. (Doc. 25). Rather than waiting for this motion to be resolved, on June 17, 2021, Ramirez filed a separate lawsuit asserting these Title VII claims against the same defendants. Ramirez v. Commonwealth of Pennsylvania, et al., No. 3:21-CV-1076. That case was referred to the undersigned, and we recommended that the two cases be consolidated, which was adopted by the district court. (See id., Docs. 14, 15).
The motion to dismiss (Doc. 17) and the motion to amend (Doc 25), are fully briefed and are ripe for resolution. (Docs. 18, 21, 26, 28, 29). For the following reasons, we recommend that the motion to amend be denied, and the motion to dismiss be granted.
III. Discussion
A. Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, BU.S-, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 679.
According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. 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.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Similar legal benchmarks govern our consideration of a motion to amend a complaint. “Among the grounds that could justify a denial of leave to amend are ..., bad faith, dilatory motive, prejudice, and futility. ‘Futility' means that the complaint, as amended, would fail to state a claim upon which relief could be granted.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997); Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir.1993)) (some quotations omitted). Moreover, a party seeking to supplement pleadings must act in a diligent fashion. Thus, for example, “[a] District Court has discretion to deny a plaintiff leave to amend where the plaintiff was put on notice as to the deficiencies in his complaint but chose not to resolve them.” Krantz v. Prudential Investments Fund Management LLC, 305 F.3d 140, 144 (3d Cir. 2002) (citing Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654 (3d Cir. 1998)). By defining futility for purposes of a motion to amend as failure to state a claim upon which relief could be granted, Rule 15 mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
B. The Motion to Dismiss Should Be Granted, and the Motion to Amend Should Be Denied.
In his first amended complaint, Ramirez asserts claims pursuant to the First and Fourteenth Amendments, as well as the Pennsylvania Whistleblower law. He contends that he reported suspected child abuse to ChildLine, and was subsequently retaliated against by the defendants, who took away his ability to perform his work duties and, in one instance, physically assaulted him. In the proposed second amended complaint, Ramirez attempts to add claims under Title VII for race discrimination, retaliation, and a hostile work environment. He avers that Defendant Kivak's comment, stating “you escaped,” was racially motivated and had racial connotations relating to slavery.
After a review of the pleadings, we conclude that the plaintiff's substantive due process claim should be subsumed by his First Amendment claim, but that this claim fails as a matter of law. In addition, the plaintiff has failed to state a claim for discrimination, retaliation, or hostile work environment under Title VII. With respect to the claim under the state Whistleblower Law, while we conclude that amendment of this claim may not be futile, it would be inappropriate to allow amendment to assert a single state law claim when the federal claims in this case fail on their merits. Accordingly, we recommend that the motion to dismiss be granted with prejudice as to the federal claims, and without prejudice to Ramirez bringing his state law claim in state court. We further recommend that the motion to amend be denied as futile.
1. The Plaintiff's First and Fourteenth Amendment Claims Fail.
Ramirez first brings claims of substantive due process and First Amendment retaliation, alleging that he was retaliated against for reporting the suspected child abuse to ChildLine.
At the outset, we note that Ramirez's Fourteenth Amendment substantive due process claim fails under the more-specific provision rule. The more-specific provision rule states that “if a constitutional claim is covered by a specific constitutional provision ... the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (citing Graham v. Connor, 490 U.S. 386, 394 (1989)). The Third Circuit has expressly adopted this rule for cases involving Fourteenth Amendment substantive due process claims brought in combination with claims of other constitutional violations that challenge the same conduct. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 261 (3d Cir. 2010); see also Piazza v. Lakkis, 2012 WL 2007112, at *5-6 (M.D. Pa. June 5, 2012) (Caputo, J.).
Here, Ramirez's complaint asserts a substantive due process violation based explicitly on his First Amendment rights to freedom of speech. (Doc. 25-1, ¶ 126). Thus, the more-specific provision rule bars consideration of Ramirez's Fourteenth Amendment claim, as his claim is more appropriately addressed through the lens of the First Amendment.
On this score, we conclude that Ramirez has failed to state a claim for First Amendment retaliation. In order to state a claim of retaliation under the First Amendment, a plaintiff must show: “(1) that [she] engaged in a protected activity, (2) that defendants' retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) that there was a causal connection between the protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)). Stated differently, the plaintiff must demonstrate that the protected speech was “a ‘substantial factor' in the alleged retaliatory action.” McAndrew v. Bucks Cnty Bd. Of Comm'rs, 183 F.Supp.3d 713, 731 (E.D. Pa. 2016) (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). If a plaintiff makes such a showing, the burden then shifts to the defendants to show that, even if the protected speech had not taken place, it would have taken the same action.
In determining the constitutional protections of the First Amendment with respect to public employee speech, two inquiries guide our interpretation:
The first requires determining whether the employee spoke as a citizen on a matter of public concern. See [Pickering v. Bd. Of Ed. of Twp. High School District 205, 391 U.S. 563, 568 (1968)]. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. See Connick, supra, at 147, 103 S.Ct. 1684. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. See Pickering, 391 U.S., at 568, 88 S.Ct. 1731.Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (internal citations omitted.) Thus, when the plaintiff is a public employee, his speech is protected when he (1) speaks as a citizen, (2) speaks about a matter of public concern, and (3) the employer did not have a justification for treating her differently than a member of the public. Reilly v. City of Atlantic City, 532 F.3d 216, 228 (3d Cir. 2008); Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006).
Although a citizen who enters government service “must accept certain limitations on his or her freedom,” the Supreme Court has recognized that “a citizen who works for the government is nonetheless a citizen.” Garcetti, 547 U.S. at 419. However, the Supreme Court has held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Lane v. Franks, 573 U.S. 28, 237 (2014). Factors to consider when making a determination about whether the employee spoke pursuant to his duties include the employee's special knowledge acquired through her job; whether the complaints were raised “up the chain of command”; whether it was part of the employee's responsibilities to raise the complaint; and whether the speech is in furtherance of the employee's duties. Tayoun v. City of Pittston, 39 F.Supp.3d 572, 577-78 (M.D. Pa. 2014) (quoting Kimmett v. Corbett, 554 Fed.Appx. 106, 111 (3d Cir. 2014) (internal citations omitted)).
Whether a public employee's speech is made “pursuant to official duties” is a mixed question of law and fact. Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015) (citing Dougherty v. School Dist. of Phila., 772 F.3d 979, 988 (3d Cir. 2014)). The inquiry is a practical one and does not depend on a public employee's job description or list of official duties. Garcetti, 547 U.S. at 424-25. Although Garcetti did not announce a comprehensive approach for determining whether speech was made pursuant to an employee's job duties, the Supreme Court has made clear that courts are to consider the responsibilities the employee assumed when she “went to work and performed the tasks [she] was paid to perform.” Id. at 422. The Third Circuit has explained further: “[T]he responsibility of a district court in evaluating whether a public employee's speech was made as a private citizen is to ask whether the speech at issue was ‘outside the scope of his ordinary job responsibilities.' ” Flora, 776 F.3d at 179 (quoting Lane, 573 U.S. at 238). The controlling factor is whether the statements were made pursuant to the employee's job duties, in other words, “the utterances were among the things that the employee ‘was employed to do.' ” Id. at 177 (quoting Garcetti, 547 U.S. at 421).
In the instant case, we conclude that Ramirez's reports to ChildLine do not amount to protected speech under the First Amendment. Rather, by his own admission, Ramirez was required by statute to report suspected child abuse because he was a mandated reporter in his role as a therapist. Thus, by statute, Ramirez was “ ‘expected, pursuant to [his or her] job duties,' to make the speech that is at issue.” Jerri v. Harran, 625 Fed.Appx. 574, 580 (3d Cir. 2015) (quoting Foraker v. Chaffinch, 501 F.3d 231, 241 (3d Cir. 2007)). It is clear that Ramirez was not speaking as a citizen when he made the reports to ChildLine, and thus, his speech is not protected by the First Amendment. See Parker v. Sch. Dist. of Phila., 415 F.Supp.3d 544, 55658 (E.D. Pa. 2019) (finding that a teacher's reports of abuse to ChildLine as a mandated reporter were not protected under the First Amendment). Accordingly, Ramirez's First Amendment claim fails as a matter of law and should be dismissed.
2. The Plaintiff's Title VII Claims Fail.
In his proposed second amended complaint, Ramirez lodges claims of racial discrimination, retaliation, and hostile work environment against the Commonwealth. However, a review of the plaintiff's allegations demonstrate that these claims fall well short of what is needed to state Title VII claims in this setting.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against and/or discharging their employees because of their race. 42 U.S.C. § 2000e-2(a)(1). Title VII discrimination claims are governed by a burdenshifting framework. See Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 32526 (3d Cir. 2015). In brief, that framework requires that the plaintiff demonstrate that (1) he is a member of a protected class, (2) he suffered an adverse employment action, (3) under circumstances that give rise to an inference of unlawful race-based discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). The last element also requires that the plaintiff demonstrate a causal connection between his protected status and the allegedly adverse action. Id. at 798. The key focus of the prima facie test is “always whether the employer is treating ‘some people less favorably than others because of their race, color, religion, sex, or national origin.'” Id. (citation omitted). The elements of the prima facie case “must not be applied woodenly but must rather be tailored flexibly to fit the circumstances of each type of illegal discrimination.” Geraci v. Moody-Tottrup Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996).
Title VII also contains a retaliation provision. To make out a prima facie case of retaliation under Title VII, a plaintiff must show (1) that he engaged in protected activity; (2) that he suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action. Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017). Ultimately, a plaintiff bringing a Title VII retaliation claim must be able to show that his participation in protected activity was the but-for cause of any alleged adverse employment action that he suffered. Univ. of Texas v. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer”); see also Grevious, 851 F.3d at 257 (noting that a plaintiff alleging Title VII retaliation “has a higher causal burden than a plaintiff asserting a claim of direct status-based discrimination under Title VII”). “The ultimate question in any retaliation case is an intent to retaliate vel non.” Jensen v. Potter, 435 F.3d 444, 449 n.2 (3d Cir. 2006).
As we have noted, Title VII claims are subject to the McDonnell Douglas burden-shifting framework. Thus, if the employee establishes a prima facie case of discrimination or retaliation based upon race, the burden shifts to the employer to advance a legitimate, non-discriminatory and non-retaliatory reason for its conduct, and if the employer does so “the plaintiff must be able to convince the factfinder both that the employer's proffered explanation was false, and that [discrimination or] retaliation was the real reason for the adverse employment action.” Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997)).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Finally, in order to make a prima facie claim of race-based discrimination on the basis of a hostile work environment, a plaintiff must show that (1) he suffered intentional harassment based on his race; (2) the harassment was severe or pervasive; (3) the harassment detrimentally affected him; (4) the harassment would have detrimentally affected a reasonable person in similar circumstances; and (5) a basis for employer liability. 42 U.S.C. § 2000e-2(a); Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009); Lawrence v. F.C. Kerbeck & Sons, 134 Fed.Appx. 570, 571 (3d Cir. 2005) (citing Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996)); Taylor v. JFC Staffing Assocs., 690 F.Supp.2d 357 (M.D. Pa. 2009). The last factor requires that the plaintiff point to facts showing that the employer was aware of the discrimination and yet failed to take prompt and appropriate corrective action. Syed v. YWCA of Hanover, 906 F.Supp.2d 345, 358 (M.D. Pa. 2012).
Isolated comments and insensitive remarks or unpleasant utterances may not sufficiently affect the conditions of employment in a manner severe enough to implicate Title VII, as Title VII is not a “generalized ‘civility code.' ” Jensen v. Potter, 435 F.3d 444, 452 (3d Cir. 2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). Rather, the statute “prohibits severe or pervasive harassment; it does not mandate a happy workplace. Occasional insults, teasing, or episodic instances of ridicule are not enough [because] they do not ‘permeate' the workplace and change the very nature of the plaintiff's employment.” Id. at 451. Factors to be considered include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). No single factor is dispositive, and the analysis focuses on the totality of the circumstances. Id. (citing Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990)).
In the instant case, we conclude that Ramirez has failed to make out a prima facie case for race discrimination or retaliation. With respect to his discrimination claim, Ramirez has alleged that he is a member of a protected class, as he is of African American and Latino descent. The adverse employment action he alleges amounts to loss of free use of the therapy room, and ultimately, his constructive discharge. However, even if we conclude that these employment actions were adverse for purposes of Title VII, we cannot conclude that Ramirez has alleged factual averments sufficient to show that these actions were taken under circumstances that give rise to an inference of race discrimination.
On this score, Ramirez alleges in a very conclusory fashion that other Caucasian therapists reported abuse to ChildLine and did not lose the use of the therapy room. In addition, Ramirez alleges that Defendant Kivak made what he perceived to be a racially charged comment to him on one occasion. These bare and conclusory allegations, in our view, do not give rise to an inference of race discrimination. Indeed, workplace harassment “is not automatically discrimination . . . [within the meaning of Title VII] merely because the words used have [certain] content or connotations.” Oncale, 523 U.S. at 80-81. Moreover, one instance of a perceived racially charged comment will not rise to the level of “severe” or “pervasive” in the context of a hostile work environment claim. See Id. at 81; Jensen, 435 F.3d at 452. Accordingly, we conclude that Ramirez has failed to state a claim of racial discrimination and a hostile work environment under Title VII.
Nor has Ramirez made a prima facie showing of retaliation under Title VII, as he has not shown that he engaged in activity protected by the Act. On this score, “[w]ith respect to ‘protected activity,' the anti-retaliation provision of Title VII protects those who participate in certain Title VII proceedings (the ‘participation clause') and those who oppose discrimination made unlawful by Title VII (the ‘opposition clause').” Moore v. City of Phila., 461 F.3d 331, 341 (3d Cir. 2006) (citing Slagle v. County of Clarion, 435 F.3d 262, 266 (3d Cir. 2006)). Regardless of the distinction between the two theories of retaliation, “the employee must hold an objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title VII.” Id. (citing Clark County v. Breeden, 532 U.S. 268, 271 (2001) (per curiam)).
In the instant case, Ramirez's reports were made to ChildLine regarding suspected child abuse. This is not the type of reporting activity that Title VII protects. Rather, as stated above, Title VII protects those who make a good faith report of conduct that is unlawful under Title VII. Moreover, to the extent Ramirez filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), according to the proposed second amended complaint, this was not filed until March of 2021, after Ramirez had ceased employment with the Commonwealth and thus could not have been the basis for any alleged retaliation. Accordingly, Ramirez has not demonstrated that he engaged in the type of activity protected by Title VII, and this retaliation claim fails as a matter of law.
While Ramirez asserts that he filed a complaint with the EEOC on March 18, 2021 and requested an immediate Right to Sue letter from the EEOC, which he received on March 19, 2021, Ramirez failed to attach either his EEOC complaint or his Right to Sue notice.
In sum, while Ramirez believes he was subjected to some type of different treatment based on his race, the allegations in the amended complaints do not set forth factual averments that support claims under Title VII. Accordingly, Ramirez should not be permitted to amend his complaint to add these claims.
3. We Should Decline to Exercise Supplemental Jurisdiction Over the Whistleblower Claim.
Finally, Ramirez asserts a claim under Pennsylvania's Whistleblower Law, 43 P.S. § 1424, alleging that he was retaliated against by the defendants for reporting wrongdoing at YFC#2. To establish a prima facie case under the Pennsylvania Whistleblower Law, a plaintiff must prove “by preponderance of the evidence, that, prior to the alleged acts of retaliation, [s]he had made a good faith report of wrongdoing to appropriate authorities.” Kimes v. Univ. of Scranton, 126 F.Supp.3d 477, 505 (M.D. Pa. 2015) (quoting O'Rourke v. Commonwealth, 566 Pa. 161, 778 A.2d 1194, 1200 (2001) (internal quotations omitted)). The plaintiff must also present evidence of a causal connection between the report she made and the alleged acts of retaliation. Golaschevsky v. Dep't of Envtl. Prot., 554 Pa. 157, 720 A.2d 757, 759-60 (1998). If the plaintiff can set forth a prima facie case of retaliation, “the burden shifts to the employer to show its actions were lawful.” Johnson v. Res. for Human Dev., Inc., 789 F.Supp.2d 595, 601 (E.D. Pa. 2011) (citing O'Rourke, 778 A.2d at 1200). If the employer can demonstrate that the action taken “occurred for separate and legitimate reasons, which are not merely pretextual,” the employer will not be held liable. 43 Pa. Cons. Stat. § 1424(c); Johnson, 789 F.Supp.2d at 601. Additionally, a plaintiff who brings a claim under this statute must file the action within 180 days after the occurrence of the alleged violation. 43 Pa. Cons. Stat. § 1424(a).
At the outset, we note that some of Ramirez's reports made to ChildLine may fall outside of the 180-day limitations period, as the second amended complaint posits that reports were made as early as January of 2019 and the alleged retaliation began in February of 2019, and Ramirez did not file his initial complaint until October of 2020. However, while Ramirez's complaint may, on its face or as amended, state a claim under the Whistleblower Act, we recommend that the court decline to exercise supplemental jurisdiction over this state law claim.
In a case such as this, where the jurisdiction of the federal court was premised on alleged federal claims which are found to be subject to dismissal, the proper course generally is for “the court [to] decline to exercise supplemental jurisdiction over the plaintiff's state law claims.” 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-... the district court has dismissed all claims over which it has original jurisdiction.”); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“holding that when federal causes of action are dismissed, federal courts should not separately entertain pendent state claims”). Bronson v. White, No. 05-2150, 2007 WL 3033865, *13 (M.D. Pa. Oct. 15, 2007) (Caputo, J.) (adopting report and recommendation dismissing ancillary malpractice claim against dentist); see Ham v. Greer, 269 Fed.Appx. 149, 151 (3d Cir. 2008) (citing United Mine Workers, 383 U.S. at 726 and Tully v. Mott Supermkts., Inc., 540 F.2d 187, 196 (3d Cir. 1976).) (“Because the District Court appropriately dismissed [the inmate's] Bivens claims, no independent basis for federal jurisdiction remains”). As the Supreme Court has aptly observed:
Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.United Mine Workers, 383 U.S. at 726 (footnotes omitted).
Here, we have found that Ramirez's federal claims against these defendants are subject to dismissal at the outset of this litigation. Therefore, in the exercise of our discretion in this district, we should decline to assert supplemental jurisdiction over potential ancillary state law claims in this case where all potential federal claims brought before us failed as a matter of law. Accordingly, we recommend that this pendent state law claim be dismissed without prejudice.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion to dismiss (Doc. 17) be GRANTED, and that the plaintiff's motion to amend (Doc. 25) be DENIED as futile. IT IS FURTHER RECOMMENDED THAT the plaintiff's claim under the Pennsylvania Whistleblower law be dismissed without prejudice to the plaintiff pursuing such a claim in state court.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall 30 witnesses or recommit the matter to the magistrate judge with instructions.