CHAVARRIA v. PHILADELPHIA GAS WORKS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MIGUEL CHAVARRIA, JR.,

Plaintiff,

CIVIL ACTION

v. NO. 19-4428

PHILADELPHIA GAS WORKS et al.,

Defendants.

PAPPERT, J. February 3, 2020

MEMORANDUM

After Miguel Chavarria filed an internal discrimination complaint with his

employer Philadelphia Gas Works, PGW began an investigation. Soon thereafter,

Chavarria claims that PGW’s management implemented various policies in retaliation

for his and other African American employees’ participation in the investigation.

Chavarria now sues PGW and his union, Gas Works Employees’ Local 686, alleging

retaliation, hostile work environment, disparate treatment discrimination and

disparate impact discrimination on the basis of his race, color and national origin in

violation of Title VII and the Pennsylvania Human Relations Act.1 PGW filed a Motion

to Dismiss the disparate impact claim, which the Court grants for the reasons that

follow.

1 The same legal standards apply to Title VII and Pennsylvania Human Relations Act claims,

so the Court will refer only to Title VII for the remainder of this opinion. Crawford v. Verizon Pa.,

Inc., 103 F. Supp. 3d 597, 603 (E.D. Pa. 2015) (citing Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409

(3d Cir. 1999)).

I

Chavarria is an African American man of Costa Rican descent who began

working for PGW in 1992. (Am. Compl. ¶¶ 10–12, ECF No. 8.) In 2006, he became a

foreman and is currently employed at PGW’s Gas Processing Operations Passyunk

Plant. (Id. ¶¶ 12–13.)

Chavarria alleges that the Passyunk plant has been understaffed since 2013.

(Id. ¶ 19.) Despite the staffing shortages, Chavarria claims that General Supervisor

David Martinez and Plant Manager Brian McGuire “continue to violate scheduling,

overtime, vacation and other PGW employment policies.” (Id. ¶ 23.) For example, he

alleges that Martinez ignored the seniority guidelines applicable to vacation time by

denying Chavarria’s vacation request while, at the same time, granting vacation to a

non-minority employee with fewer years of service at PGW. (Id. ¶ 23(c).) Chavarria

further alleges that McGuire manipulated the work schedule to “segregate and give

preferential scheduling to non-protected class (Caucasian) employees.” (Id. ¶ 23(d).)

Martinez also allegedly scheduled Chavarria to work more days on a truck unloading

project compared to his Caucasian colleagues. (Id. ¶ 23(e).)

In December of 2017, Chavarria filed an internal complaint with PGW alleging

discrimination against African American, black and brown employees. (Id. ¶ 30.) PGW

management began investigating and interviewed several employees, including

Chavarria. See (id. ¶ 33). During the investigation and continuing thereafter,

Chavarrria alleges that the work environment at the Passyunk plant became unsafe

and hostile, with plant management making and enforcing new rules. (Id. ¶¶ 34–35.)

For example, he avers that Martinez issued an order “prohibiting the use of plant

vehicles by union employees for their job performance except with permission from

management.” (Id. ¶¶ 15(d), 36.) Martinez also began enforcing an old HR personnel

policy that prohibited employees from using personal electronics devices at the

Passyunk plant. (Id. ¶ 37.) But, according to Chavarria, Martinez only imposed the

rule against black and brown employees. (Id.)

II

To survive dismissal under Federal Rule of Civil Procedure 12(b)(6), the

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when

the facts pled “allow[ ] the court to draw the reasonable inference that [a] defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”

Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

When the complaint includes well-pleaded factual allegations, the Court “should

assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.” See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.

2016) (quoting Iqbal, 556 U.S. at 679). However, this “presumption of truth attaches

only to those allegations for which there is sufficient factual matter to render them

plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir.

2016) (internal quotation and citation omitted). This plausibility determination is a

“context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. (quoting Connelly, 809 F.3d at 786–87).

III

A

Count IV of the Amended Complaint alleges a Title VII disparate impact claim

on the basis of race, color and national origin. (Am. Compl. ¶¶ 60–64.) Chavarria avers

that PGW’s “policies and practices of plant vehicles, electronics, scheduling work

assignments and overtime,” created a disparate impact on protected class members,

including himself. (Id. ¶ 61.) In asking the Court to dismiss Count IV, PGW argues

that Chavarria fails to plead sufficient facts to allege specific employment policies or

that such policies had a disparate impact on members of a protected class. See

generally (Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 11).

To establish a prima facie disparate impact claim, the plaintiff must show that a

facially neutral employment policy or practice resulted in a significantly discriminatory

pattern. Lanning v. SEPTA, 181 F.3d 478, 485 (3d Cir. 1999). To do so, the plaintiff

must first identify a specific employment practice or policy to challenge. Watson v. Fort

Worth Bank & Trust, 487 U.S. 977, 994 (1988) (plurality opinion). He then must prove

causation by offering statistical evidence sufficient to show that the practice or policy at

issue resulted in discrimination. Id. In these cases, the employer acts without an

intentional or deliberate discriminatory motive. United States v. Pennsylvania, 110 F.

Supp. 3d 544, 549 (M.D. Pa. 2015).

The burden on a Title VII plaintiff at the motion to dismiss phase, however, “is

much less onerous.” Ladd v. Boeing Co., 463 F. Supp. 2d 516, 523 (E.D. Pa. 2006)

(quoting Powell v. Ridge, 189 F.3d 387, 394 (3d Cir. 1999), overruled on other grounds

by Alexander v. Sandoval, 532 U.S. 275 (2001)). To survive dismissal, all Chavarria

must do is plead facts sufficient to allege that a facially neutral policy or practice’s

adverse effects fall disproportionately on a group protected by Title VII to which he

belongs. Ladd, 463 F. Supp. 2d at 523.

B

Chavarria’s disparate impact claim identifies four different policies—use of plant

vehicles, electronics, scheduling work assignments and overtime—which the Court

addresses in turn. See (Am. Compl. ¶ 61).

1

The Court understands “the use of plant vehicles” policy to refer to Martinez’s

policy of “prohibiting the use of plant vehicles by union employees for their job

performance except with permission from management.” (Id. ¶¶ 36, 61.) According to

Chavarria, management established this policy in retaliation for his and other African

Americans’ participation in the internal race discrimination investigation. (Id. ¶ 41.)

Although Chavarria identifies a specific policy, his conclusory allegation that the

policy “adversely impacted[ed] protected class members” is insufficient to withstand a

motion to dismiss. (Am. Compl. ¶ 63); see, e.g., Knox v. PPG Indus., Inc., 2016 WL

279004, at *6–7 (W.D. Pa. Jan. 22, 2016) (“While Plaintiff does employ some disparate-

impact buzzwords in her complaint—e.g., she claims that PPG’s policies ‘adversely

impacted’ women—these ‘are bare legal conclusions, not facts[,]’ [. . .], and thus cannot

carry Plaintiff’s claim over the plausibility threshold.”). Indeed, Chavarria provides no

facts anywhere in the Amended Complaint to support his allegation that the vehicle

policy had a disparate impact on African American, black or brown employees. That

management created the policy as a retaliatory response to the internal investigation

also makes clear that it was one of intentional discrimination. Chavarria accordingly

fails to allege a disparate impact claim with respect to the vehicle policy.

2

Chavarria’s next allegation involves a “no electronics” policy that Martinez

purportedly enforced “against protected class members (black, brown) [but] not against

non-protected (white) members.” (Am. Compl. ¶¶ 15(d), 37.) He references a specific

instance in which Martinez prohibited a black employee from using a personal

electronic device, “citing HR Personnel Policy #003-5 (effective 8/10/2007),” but allowed

a white employee to use a radio. (Id. ¶ 37.)

Chavarria fails to state a disparate impact claim with respect to the “no

electronics” policy because PGW management purportedly applied the rule in a

deliberately discriminatory fashion. That Martinez allegedly only enforced the rule

against protected class members indicates that Chavarria’s claim is one of intentional

discrimination—not the result of adverse effects from a facially neutral policy. See

Pennsylvania, 110 F. Supp. 3d at 549 (explaining disparate impact claims do not

involve intentional discriminatory motives).

3

Chavarria’s final effort to state a disparate impact claim involves allegations

that PGW’s “scheduling work and overtime” had a disparate impact on protected class

members. (Am. Compl. ¶ 61.) In making this allegation, however, he fails to identify

“specific employment practice[s].” Watson, 487 U.S. at 994. Instead, Chavarria cites to

a vague policy of Martinez “ignoring seniority guidelines,” (Am. Compl. ¶ 23(c)), and

creating schedules to segregate workers on the basis of race. (Id. ¶ 23(e)–(d).) But

nowhere in the Amended Complaint does he refer to a specific vacation or scheduling

policy, nor does he even mention any type of overtime policy.

Even if Chavarria could plead specific policies, his allegations against Martinez

and McGuire suggest intentional discrimination against minority employees. Such

contentions do not give rise to a disparate impact claim. Simply equating his personal

observations with a PGW policy does not make them so. See Hanrahan v. Bank Rome

LLP, 142 F. Supp. 3d 349, 354 (E.D. Pa. 2015) (explaining that plaintiff’s observations

regarding law firm hiring practices fails to equate to a specific employment practice).

Chavarria has accordingly failed to state a Title VII disparate impact claim and the

Court dismisses Count IV with respect to Defendant PGW.

IV

Courts should freely give leave to amend a complaint when justice so requires.

Fed. R. Civ. P. 15(a)(2). “This certainly includes amendment to cure defective

allegations.” Shifflett v. Korszniak, 934 F.3d 356, 366 (3d Cir. 2019) (citing 6 Wright &

Miller, Federal Practice and Procedure: Civil § 1474 (3d ed. 2019)). Chavarria is free to

amend Count IV consistent with this Memorandum and to the extent he can allege

facts sufficient to state a plausible claim for relief.

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

GERALD J. PAPPERT, J.