LAWRENCE F. STENGEL, District Judge.
Pro se plaintiff Brenda Fortes brings this employment discrimination suit against her current employer Boyertown Area School District under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and related state law. She claims Boyertown has discriminated against her based on race, color, gender, sex, age, and disability. Boyertown moves to dismiss her claims. For the reasons stated below, I will grant the motion in part and deny it in part.
Brenda Fortes is a sixty-five-year-old African American woman. Since the fall of 1993, she has worked as an English teacher at Boyertown High School. She was the first African-American teacher employed by the Boyertown School District in over a decade at her original time of hire and is one of two African-American teachers currently working for the School District.
Ms. Fortes suffers from Post-Concussive Syndrome, which began in 2004 when she was injured breaking up a fight between two students. As a result of that incident, Ms. Fortes suffered injury to her head, neck, and hip and experienced trauma to her head. Her disability substantially limits her ability to maintain balance, causes dizzy spells and migraines, makes her sensitive to bright light, and make her anxious in large gatherings or crowded/cramped areas. Ms. Fortes filed a worker's compensation claim as a result of this injury. In August 2010, Ms. Fortes informed the defendant that she would need reasonable accommodations for her disability in the 2010-2011 school year.
In June 2010, Ms. Fortes received a partial "Unsatisfactory evaluation." As a result, she was placed on a "Professional Improvement Plan" by Robert Scoboria, Assistant Superintendent of Administration for the defendant, and by Brett Cooper, Principal of Boyertown High School, in August 2010. The impetus for the plan was allegedly due to "a long history of inappropriate comments." Scoboria and Cooper, both white males, allegedly did not provide any specific examples of these allegations and informed Ms. Fortes that the plan would be enforced and documented whether she signed it or not.
In September 2010, Scoboria and Cooper allegedly informed Ms. Fortes that she was not permitted to communicate with or contact the parents of her students. On October 7, 2010, Ms. Fortes intercepted a note being passed between two students, in which she was referred to as a "damn nigger." The students received a couple of days of in-school suspension. Ms. Fortes was not permitted to communicate with their parents about the incident.
On October 28, 2010, a student threw a marker, which struck Ms. Fortes' head. As a result, she was thrown off balance and had difficulty seeing. The student was subsequently removed from her classroom.
In addition, Ms. Fortes alleges that she was "regularly subjected to repeated criticism in regards to my performance and interaction with students and parents" and that she had made other complaints about aggressive students and the school's security, which the defendant failed to address.
In December 2010, the defendant presented Ms. Fortes with a "Transition and Separation and Release Agreement," requesting that she resign, release all claims, and receive a private settlement. Ms. Fortes refused, saying that she had never requested a "settlement." Weeks before being presented with this agreement, she alleges that she had informed Cooper that she planned to work until age 67.
On January 24, 2011, Stephen Katch, Assistant to the Superintendent for Human Resources, informed Ms. Fortes that she was reassigned from her role as English teacher to the role of Library Research Coordinator. Ms. Fortes claims that this action was adverse because it was isolating and "demeaning," caused her to lose her classroom and be moved into a "cramped space without natural lighting and with constant large gatherings," and caused her to be "treated as if [she did] not exist." Ms. Fortes claims that this action was taken in retaliation for her not accepting the separation and release agreement and for her opposition to how the defendant handled students who were aggressive towards her.
On March 16, 2011, Ms. Fortes filed dually a complaint with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Rights Commission (PHRC).Though it is not entirely clear from the complaint, it appears that Ms. Fortes is asserting race, color, gender/sex, disability, and age discrimination claims under Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Rights Act (PHRA). She also asserts what appears to be a claim for defamation. This is the second Title VII action based on racial discrimination that the plaintiff has filed against the school district.
On October 18, 2012, Ms. Fortes filed a petition to proceed in forma pauperis (IFP) in this court.
On February 28, 2013, I granted the plaintiff's request for appointment of counsel and directed the Clerk of Court to make her case available on the Civil Rights Panel.
Ms. Fortes claims that white teachers and/or non-disabled teachers are treated more favorably than she because they are not subject to racial slurs, restrictions by the defendant in speaking to parents, nor were given a separation of employment agreement. She claims these actions detrimentally affected her because she was removed from her assignment as an English teacher and the harassment she experienced caused her physical and mental anguish.
The defendant moves to dismiss all claims under 12(b)(5) for insufficient service of process and 12(b)(6) for failure to state a claim.
Proper service of process is a pre-requisite to the court's personal jurisdiction over a defendant.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint.
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which she bases her claim.
A court "may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."
In resolving motions pursuant to Rule 12(b)(6), courts must liberally construe pro se pleadings.
The defendant first argues that the plaintiff's action should be dismissed as time-barred. A person who files an administrative complaint with the EEOC has ninety days from the day the person receives her right-to-sue letter to file a civil action. 42 U.S.C. § 2000e-5(f)(1).
The defendant argues that the plaintiff's complaint should be dismissed because she did not commence her suit until after the 90-day deadline had passed. "A civil action is commenced by filing a complaint with the court." FED. R. CIV. P. 3. Ms. Fortes received her EEOC right-to-sue letter on July 20, 2012. She was required to file suit by October 18, 2012. Ms. Fortes' complaint was not filed until November 13, 2012.
When a plaintiff files an IFP petition with her complaint attached before the 90-day deadline, the complaint will be considered timely though it is not officially filed until the IFP petition is decided or the filing fee is paid, due to equitable tolling of the statute.
"Under equitable tolling, plaintiffs may sue after the statutory time period for filing a complaint has expired if they have been prevented from filing in a timely manner due to sufficiently inequitable circumstances."
In determining whether tolling is appropriate, a court must look at the diligence of the litigant, whether the litigant had actual or constructive notice of a filing requirement, and whether her lack of knowledge was reasonable.
While it is true that the plaintiff's status as a pro se litigant should not excuse her non-compliance with procedures of the court, I believe equitable tolling is warranted in this case.
It is reasonable for her to think that she should have to file her IFP petition and receive a decision on that petition before filing her complaint.
Ms. Fortes was diligent in filing her action. She submitted her IFP petition by the statutory deadline. She then filed her complaint with her filing fee within thirty days of receiving her IFP denial, per my Order.
For these reasons, the 90-day deadline will be equitably tolled and Ms. Fortes' action will be considered timely.
The defendant next argues that the complaint should be dismissed because it was not properly served. After a complaint is filed, a plaintiff must obtain a valid summons from the Clerk of Court. FED. R. CIV. P. 4(b).
The defendant indicates that the plaintiff attempted to serve the summons without her complaint.
The defendant argues that
While it is true that the plaintiff's pro se status does not excuse her from complying with the Federal Rules, "[d]ismissal of a complaint is inappropriate when there exists a reasonable prospect that service may yet be obtained."
If Ms. Fortes' claims survive this motion to dismiss, I will quash the service and allow her another opportunity to serve her complaint on the defendant.
The complaint alleges discrimination based on race (pursuant to Title VII and the PHRA), color (pursuant to Title VII and the PHRA), gender (pursuant to Title VII), sex (pursuant to Title VII), disability (pursuant to the ADA and PHRA), and age (pursuant to the ADEA and the PHRA). The defendant argues that the claims based on gender, sex, and two claims of color are not alleged in the PHRA complaint attached to the plaintiff's complaint. Therefore, they should be dismissed because the plaintiff has not exhausted her administrative remedies as to these claims.
Before bringing a lawsuit under Title VII, a plaintiff must comply with the procedural requirements stated in 42 U.S.C. §2000e-5. She must exhaust her administrative remedies by filing a discrimination charge with the EEOC and an appropriate state agency. 42 U.S.C. §2000e-5(a), (c). "The ensuing suit is limited to claims that are within the scope of the initial administrative charge."
Ms. Fortes dually filed her PHRA complaint with the PHRC and the EEOC. The claims alleged in her PHRA complaint would define the claims she could bring in her civil action. In her PHRA complaint, she alleges one count of discrimination based on race, one count of discrimination based on disability, and one count of discrimination based on retaliation. She does not allege counts which relate to gender, sex, or age discrimination. These claims are unlikely to grow out of the claims asserted in the charge or the facts alleged.
I agree with the defendant that the plaintiff's gender, sex, and age discriminations claims should be dismissed under Title VII, PHRA, and the ADEA. They were not included in the PHRC complaint and reasonably could not have grown out of the plaintiff's race, disability, or retaliation claims. Therefore, they have not been administratively exhausted.
Ms. Fortes' claims of discrimination based on color, however, could reasonably have grown out of the racial discrimination claim alleged in her PHRA complaint. Therefore, these claims should not be dismissed.
The next question is whether the administratively exhausted claims survive a Rule 12(b)(6) challenge.
Title VII makes it unlawful for an employer to discriminate against an individual "with respect to his compensation, terms, conditions, or privileges of employment" based on the person's race, color, religion, sex, or ethnicity. 42 U.S.C. § 2000e-2. The
If the plaintiff can establish a prima facie case, the burden then shifts to defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection."
Mr. Fortes has established a prima facie case of racial discrimination under Title VII. She is a member of a protected class as an African-American. Viewing the facts in the light favorable to her, she is qualified as an English teacher, with a Master's degree and over twenty years of teaching experience.
Ms. Fortes alleges that she was subjected to several adverse actions as a result of the racial discrimination: 1) she was not allowed to communicate with the parents of her students; 2) she was offered a "Transition and Separation and Release Agreement" though she informed the defendant she planned to work for several more years before retiring; and 3) she was reassigned to the role of Library Research Coordinator after she refused to sign the agreement.
Viewing the facts presented in the light most favorable to Ms. Fortes, the actions by the defendant show a serious enough alteration in her workplace conditions, which could be considered adverse.
Lastly, Ms. Fortes indicates that other white teachers were not restricted in speaking with parents, were not offered a separation agreement, and were not reassigned in their positions. She is one of two African-Americans employed by the School District. This information raises an inference of discrimination on the part of the defendant.
The plaintiff has established her prima facie case under Title VII. The defendant has not offered a legitimate reason for its actions.
The ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to . . . the hiring, advancement, or discharge of employees, . . . and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
As a threshold requirement, Ms. Fortes must satisfy the ADA's standard for a qualified individual with a disability in order to be protected under this statute. A "qualified individual with a disability" is defined by the ADA as a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). A person has a "disability" if she meets any of these three standards:
42 U.S.C. § 12102(2).
Whether an individual has a disability within the meaning of the ADA is an "extraordinarily fact-intensive" inquiry that must be conducted on an individual basis.
Under this guidance, Ms. Fortes would be considered a "qualified individual" within the meaning of the ADA. She has been diagnosed with Post-Concussive Syndrome, which would be considered a physical impairment under the ADA since it affects her neurological system.
Given that Ms. Fortes would be considered "disabled" under the ADA, she must also show the following in order to establish a prima facie case of discrimination based on disability: 1) she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the School District; and 2) she has suffered an otherwise adverse employment decision as a result of discrimination based on her disability.
The plaintiff has made out a prima facie case of discrimination under the ADA, enough to overcome a motion to dismiss. Her Post-Concussive Syndrome qualifies her as being disabled under the ADA. She has indicated that she is qualified to perform the essential functions of her job, holding a Master's degree and having over twenty years of teaching experience.
Lastly, Ms. Fortes has shown that she was subjected to adverse employment decisions. Viewing the facts in the light most favorable to Ms. Fortes, these decisions plausibly could have been caused by discrimination based on her disability. Ms. Fortes received a note from her neurologist on August 17, 2010, outlining accommodations he recommended the school district provide her during the 2010-2011 school year.
In addition, Ms. Fortes alleges that she was subjected to conditions which she says do not meet the reasonable accommodations recommended by her doctor, while working as Library Research Coordinator.
For these reasons, Ms. Fortes has stated a claim of discrimination based on disability under the ADA.
The PHRA provides that employers shall not discriminate on the basis of "race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability." 43 P.S. § 955(a). Courts interpret the PHRA to be consistent with Title VII.
For this reason, I will not dismiss the plaintiff's race, color, and disability claims under the PHRA.
In her civil complaint, the plaintiff alleges that she was retaliated against because of her disability and filing of a worker's compensation claim. The ADA provides that: "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge . . . under [the ADA]." 42 U.S.C. § 12203(a). The PHRA also prohibits retaliation.
Ms. Fortes provides no facts which would support an ADA or PHRA retaliation claim. She does not provide a date of her worker's compensation filing to show that the retaliation was caused by her worker's compensation claim.
The plaintiff's federal complaint also claims "retaliation" based on "discrimination [and] disparate treatment."
In order to make out a prima facie case of retaliation under Title VII, a plaintiff must show that: 1) the employee or potential employee engaged in a protected employment activity; 2) the employer took an adverse employment action after or around the same time as the employee's protected activity; and 3) a causal link exists between the employee's protected activity and the employer's adverse action.
From the facts presented, Ms. Fortes did engage in a protected employment activity by filing EEOC complaints against her employer. She also alleges that on or about January 24, 2011, she was reassign\ned from her position as an English teacher to that of Library Research Coordinator. Though it is not entirely clear from the facts whether this change in position was a demotion, this change could be considered to be adverse, viewing the facts in the light most favorable to Ms. Fortes.
Ms. Fortes, however, fails to establish a retaliation claim because she is unable to show that her filing her EEOC complaints in 1995, 2004, and 2006 was causally related to her change in position in 2011. Even construing the facts liberally and in the plaintiff's favor, it would still be a stretch to say that her change in position was retaliation for her filing the prior EEOC complaints five or more years earlier.
For this reason, her Title VII retaliation claim will be dismissed.
In her request for relief, Ms. Fortes asks that the defendant "publicly clear Plaintiff's name from the lies [and] other defamation of Plaintiff's character."
The defendant argues that this claim should be dismissed with prejudice because the school district is immune from defamation claims under the Political Subdivision Tort Claims Act (TCA). The TCA states: "Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." 42 Pa.C.S.A. § 8541.
The TCA "forbids any damage recoveries against political subdivisions outside the parameters of the exceptions enumerated in Section 8542 of the Code."
I agree that the defendant is legally barred from bringing her defamation claim. School districts are considered local agencies entitled to governmental immunity under the TCA. Petula v. Mellody, 631 A.2d 762, 765 (Pa. Commw. Ct. 1993). "[A]n action in defamation falls within none of the eight enumerated exceptions."
For the foregoing reasons, I will grant the defendant's motion to dismiss as to the plaintiff's:
1) age discrimination claims under the ADEA and PHRA;
2) gender and sex discrimination claims under Title VII and the PHRA;
3) retaliation claims under Title VII, ADA, and PHRA; and
4) defamation claim.
I will deny the defendant's motion to dismiss the plaintiff's:
1) race/color discrimination claims under Title VII and the PHRA; and
2) disability discrimination claims under the ADA and PHRA.
I will allow Ms. Fortes to attempt to properly serve the defendant in accordance with Rule 4. However, if she is unable to properly serve of the summons and complaint as required by the Rules, dismissal of this case may be warranted.
An appropriate Order follows.
