Opinion

Reed v. Board of Directors of City Trusts

Court
District Court, E.D. Pennsylvania
Filed
Aug 11, 2020
Cited by
0 cases
Authority
More cited than 28.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENYATTA REED : CIVIL ACTION

:

v. :

:

GIRARD COLLEGE : NO. 20-2325

MEMORANDUM

Bartle, J. August 11, 2020

Plaintiff Kenyatta Reed has sued defendant Girard

College, his former employer. He alleges that defendant’s

“discriminatory and retaliatory conduct forced” him to resign

from his position. Plaintiff seeks damages and asserts six

claims for relief: (1) discrimination and retaliation in

violation of the Americans with Disabilities Act, 42 U.S.C.

§ 12101 (“ADA”) (Counts I and II); (2) discrimination and

retaliation in violation of the Pennsylvania Human Relations

Act, 43 Pa. C.S.A. § 951 (“PHRA”) (Counts III and IV);

(3) violation of the Family and Medical Leave Act, 29 U.S.C.

§ 2601 (“FMLA”) (Count V); and (4) violation of the Pennsylvania

Wage Payment and Collection Law, 43 Pa. C.S.A. § 260.1 (“WPCL”)

(Count VI). Before the court is the motion of defendant for

dismissal of plaintiff’s complaint pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure for failure to state claim

upon which relief can be granted, or in the alternative, to

compel arbitration pursuant to the Collective Bargaining

Agreement (“CBA”) entered into by defendant and the Educational

Support Personnel Association, PSEA-NSA (“Union”), of which

Plaintiff was a member. Defendant also seeks to dismiss the

complaint on the ground that it is not the proper defendant.

I

The following facts are alleged in the complaint and

are taken as true for present purposes.

Girard College was created in the 19th century from

one of the bequests in the Will of Stephen Girard, who emigrated

from France in 1777 and became a prominent businessman in the

City of Philadelphia. Stephen Girard died in 1831, and pursuant

to his Will, Girard College, a boarding school originally for

orphaned boys from ages 6 through 18, who were to be fed,

clothed, lodged and educated at no cost, was created. See In re

Estate of Stephen Girard, 132 A.3d 623 (Pa. 2016). In 1869, the

Pennsylvania legislature created, by statute, the Board of

Directors of City Trusts (“Board”), which was charged with the

administration of trusts left by Stephen Girard. 53 Pa. C.S.A.

§§ 16365-16370. The Board is an agency of the Commonwealth of

Pennsylvania. Commonwealth of Pennsylvania v. Board of

Directors of City Trusts of City of Philadelphia, 353 U.S. 230,

231 (1957).

Plaintiff was employed at Girard College as a

Residential Advisor for approximately twenty years, having first

started with defendant in 2000. As a Residential Advisor,

plaintiff’s duties included supervising students’ residential

activities, supporting students’ academic work, enforcing school

rules and policies, and accompanying students during off campus

activities.

On or about 2012, plaintiff was diagnosed with anemia,

which caused him to suffer fatigue, weakness, and light

headedness. On or about December 2018, plaintiff requested and

was granted intermittent leave as a result of complications from

a medical procedure. Plaintiff alleges that in retaliation for

this request, his supervisor began creating “unjustified

performance issues” about his work. On or about spring of 2019,

plaintiff was also diagnosed with “depression, anxiety,

insomnia, and adjustment disorder.” In early 2019, plaintiff

reported his supervisor’s “harassing behavior” to his superiors.

Despite his complaint, plaintiff’s supervisor continued to

retaliate against him and further disciplined him through

performance infractions.

In addition, at the end of 2019, defendant failed to

compensate plaintiff for “overcap hours”1 and in early 2020, he

1 “Overcap hours” is defined under Section 5 of Article XVII

of the CBA as those hours when a Residential Advisor is required

to supervise more than the maximum prescribed number of students

permitted by the CBA where Girard would have been otherwise able

to obtain a substitute Residential Advisor or otherwise remedy

the situation.

was not compensated correctly. While he sent “multiple”

communications to his superiors regarding wages he had been owed

by defendant, the issue was not resolved. Subsequently,

plaintiff attempted to utilize his intermittent FMLA leave and

was advised by defendant that his “FMLA time had expired and

that additional time off would not be approved and disciplinary

action may result if time was taken.”

Thereafter, plaintiff filed a charge for

discrimination and retaliation with the Equal Opportunity

Employment Commission (“EEOC”) and the Pennsylvania Human

Relations Commission (“PHRC”). He received his “Right to Sue”

notice from the EEOC on February 24, 2020. Plaintiff resigned

his employment with defendant effective at the end of the 2019-

2020 academic year. He filed this action on May 18, 2020.

II

When reviewing a motion to dismiss under

Rule 12(b)(6), the court “accept[s] as true all allegations in

plaintiff’s complaint as well as all reasonable inferences that

can be drawn from them, and [the court] construes them in a

light most favorable to the non-movant.” Tatis v. Allied

Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018) (internal

citations omitted). In addition, the court may also consider

certain records outside of the complaint, such as 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.” See Pension Benefit Guar. Corp. v.

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Here,

in support of its motion to dismiss, the defendant references

the CBA, which was not attached to the complaint. No one

disputes its authenticity, and the Court may consider it in

connection with defendant’s motion to dismiss.

We turn to the standard of review for defendant’s

motion to compel arbitration. Our Court of Appeals has

instructed that “when it is apparent, based on the face of a

complaint, and documents relied upon in the complaint, that

certain of a party’s claims are subject to an enforceable

arbitration clause, a motion to compel should be considered

under a Rule 12(b)(6) standard without discovery’s delay.”

Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764,

776 (3d Cir. 2013) (internal quotations and citations omitted).

However, “if the complaint and its supporting documents are

unclear regarding the agreement to arbitrate, or if the

plaintiff has responded to a motion to compel arbitration with

additional facts sufficient to place the agreement to arbitrate

in issue,” then the Rule 56 summary judgment standard applies.

Id.

III

Defendant asserts that counts I through V of the

complaint must be dismissed because plaintiff “waived his right

to litigate his federal and state statutory claims for

employment discrimination.” Defendant maintains that plaintiff

did not avail himself of the “mandatory grievance and

arbitration procedures” described in the CBA between the union

representing plaintiff and the defendant.

Plaintiff counters that the “CBA is not integral to

this discrimination litigation” and that he did not waive his

right to litigate his federal and state statutory claims for

employment discrimination because: (1) the [CBA] is “not clear

and unmistakable with regard to its waiver of the judicial

forums and, therefore, is not applicable or enforceable”; (2) he

“complied with the grievance procedure as set forth in the

detailed [c]omplaint”; and (3) the “[a]rbitration process is not

mandatory under the CBA.”

Neither party, as noted above, disputes the existence

of the CBA. They disagree as to the effect of certain

provisions within it. Two provisions of the CBA are of import

to our analysis. Article III, titled “Grievance and Arbitration

Procedure,” describes in detail the steps of the CBA for

resolution of a “violation of any of the provisions of [the

CBA].” It states, in relevant part:

If the action in Step 3 or Step 4 above

fails to resolve the grievance to the

satisfaction of the [Union], the grievance

may be referred by an authorized

representative of the Association to binding

arbitration, as provided in Section 903 of

the Act, providing such referral is made

within twenty (20) working days following

the date of the decision referred to in Step

3 or Step 4.

Article XVIII, titled “Non-Discrimination,” states, in relevant

part:

In the administration of this Agreement, the

College shall not discriminate against any

employee because of that employee’s race,

color, sex, religion, national origin, age

or union membership, or against qualified

individuals with a disability. Any employee

who claims a violation of this Article

shall, in the first instance, invoke the

Grievance and Arbitration Article of this

Agreement. If the grievance is not resolved

within ninety (90) work days, the employee

shall have the right to pursue additional

remedies.

Defendant argues that these provisions establish a “clear” and

“mandatory” grievance process and “designat[es] arbitration as

the exclusive forum for . . . state and federal statutory

discrimination claims” that plaintiff “bypass[ed]” when he filed

this lawsuit. Plaintiff, in turn, asserts that these provisions

are “irrelevant” because he “seeks damages under the statutory

remedy and not on the basis of a breach of contract” and the CBA

“should not be used to thwart that effort.”

While an employee may generally pursue his federal

statutory discrimination claims in federal court, he or she may

“waive [ ] . . . the right to seek relief from a court in the

first instance.” 14 Penn Plaza LLC v. Pyett, 556 U.S. 247,

265–66 (2009). When considering whether an employee waived his

or her statutory rights through a CBA, a court must consider

whether “(1) the arbitration provision clearly and unmistakably

waives the employee’s ability to vindicate his or her federal

statutory right in court; and (2) the federal statute does not

exclude arbitration as an appropriate forum.” Jones v. Does 1-

10, 857 F.3d 508, 512 (3d Cir. 2017). The clear-and-

unmistakable-waiver standard ensures that “very general”

arbitration clauses cannot waive a judicial forum for

vindication of statutory rights. Darrington v. Milton Hershey

Sch., 958 F.3d 188, 193 (3d Cir. 2020). Rather, a clear and

unmistakable waiver of a judicial forum for “statutory

antidiscrimination claims [must] be explicitly stated in the

collective bargaining agreement.” Pyett, 556 U.S. at 258

(internal quotations omitted).

The Grievance and Arbitration Procedure and the Non-

Discrimination provisions of the CBA do not meet the standard

for the clear-and-unmistakable-waiver. Article XVIII simply is

a general provision prohibiting Girard College from

discriminating against its employees on the basis of race, sex,

religion, or disability, among other grounds. Nowhere in the

relevant sections of the CBA is there any mention of an employee

waiving his or her statutory right to pursue a lawsuit alleging

discrimination in state or federal courts. The assertion that

the CBA “designates arbitration as the exclusive forum for . . .

state and federal statutory discrimination claims” is not

supported by the text. Indeed, Article III merely states that

matters “may be referred to arbitration” and Article XVIII

states that after 90 days an employee “shall have” the right to

pursue additional remedies.

Defendant’s reliance on Darrington v. Milton Hershey

Schools, Jones v. Does, and Maldonado v. SecTek for the

proposition that the CBA in this matter is “clear and

unmistakable” is misplaced. In Darrington, the CBA explicitly

stated that members:

waive any right to institute or maintain any

private lawsuit alleging employment

discrimination in any state or federal court

regarding the matters encompassed within

this grievance procedure.

958 F.3d 188, 195 (3d Cir. 2020). In Jones, the CBA provided:

[a]ll claims that an employee has been

discriminated against ... in violation of

applicable federal, state or local law shall

be subject to the grievance and arbitration

procedure as the sole and exclusive remedy

for violations.

857 F.3d 508, 513 (3d Cir. 2017). In Maldonado, the CBA stated

that any antidiscrimination claim that the “Company has breached

any federal, state, or local civil rights law, shall be resolved

exclusively pursuant to binding arbitration.” No. 20-2325, at

15 (E.D. Pa. Aug. 8, 2019). In contrast, no such clear and

unmistakable provision exists here.

Accordingly, the motion of defendant to dismiss Counts

I through V of plaintiff’s complaint for failure to arbitrate

under the CBA will be denied.

IV

Defendant also asserts that plaintiff’s WPCL claim in

Count VI is subject to the grievance and arbitration procedures

and thus “preempted by the CBA and the applicable law.”

According to defendant, plaintiff’s allegation that defendant

failed to compensate him for overcap hours is a “contractual

claim” since said payment is defined in the CBA.

The WPCL “provides a statutory remedy when [an]

employer breaches a contractual obligation to pay earned wages.”

De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir.

2003). It also provides for counsel fees and liquidated damages

in the amount of twenty-five percent of the total wages due if

there is no good faith contest or dispute of any wage claims.

See 43 Pa. C.S.A. § 260.10. “In order to survive a motion to

dismiss under Rule 12(b)(6), a plaintiff bringing a WPCL claim

must allege a contractual right—either written or oral—to

claimed wages.” Rosario v. First Student Mgmt. LLC, 247 F.

Supp. 3d 560, 568 (E.D. Pa. 2017).

As noted above, Articles III and XVIII of the CBA do

not clearly and unmistakably waive plaintiff’s right to seek

damages in this court. As with the statutory employment

discrimination claim, plaintiff is not specifically obligated to

arbitrate his wage claim under the WPCL.

Accordingly, we will deny the motion of defendant to

dismiss Count VI of the complaint under Rule 12(b)(6).

V

Defendant further seeks dismissal of Counts III and

IV, which allege violations of the Pennsylvania Human Relations

Act, 43 Pa. C.S.A. § 951 (“PHRA”). Defendant maintains that

plaintiff failed to exhaust his state law administrative

remedies before filing the complaint.

According to defendant, plaintiff pursued

administrative relief by dual filing his complaint with the PHRC

and the EEOC. However, plaintiff only received a “right to sue”

letter from the EEOC, not the PHRC. Defendant argues that since

the PHRC has “exclusive jurisdiction over claims filed with it

for a period of one year,” plaintiff’s PHRA claims are

premature.

Plaintiff counters that all “administrative remedies

have been exhausted” because he dual filed his complaint to the

EEOC and PHRC at the same time and subsequently received a

“right to sue” letter from the EEOC on February 24, 2020.

Plaintiff contends, without any authority or support, that

“[b]ecause the EEOC, and not the PHRC did the investigation, the

right to sue letter came from the EEOC and no further

documentation will come from PHRC.”

The PHRA provides a statutory remedy that precludes

assertion of a common law tort action for wrongful discharge

based upon discrimination. Clay v. Advanced Computer

Applications, Inc., 522 Pa. 86, 89 (1989). A plaintiff who

wishes to bring a PHRA claim must first file an administrative

complaint with the PHRC. See Woodson v. Scott Paper Co., 109

F.3d 913, 925 (3d Cir.1997). The PHRA grants the PHRC exclusive

jurisdiction over claims for a period of one year in order to

allow for the investigation or conciliation of the claims. See

43 Pa. C.S.A. § 962(c)(1). No right-to-sue letter is required

in connection with PHRA claims, and after the expiration of one

year a complainant may bring suit regardless of whether or not

he has received a letter from the PHRC. Tlush v. Manufacturers

Res. Ctr., 315 F. Supp. 2d 650, 656 (E.D. Pa. 2002). The

Pennsylvania Supreme Court has held that an employee cannot file

a PHRA claim in the judicial system without first exhausting his

administrative remedies. See Clay, 559 A.2d at 919. Applying

this binding interpretation of state law, courts in this

district have consistently dismissed PHRA claims filed prior to

the expiration of the PHRC’s one-year exclusive jurisdiction

period. Tlush, 315 F. Supp. 2d at 656.

Plaintiff’s charge of discrimination was cross filed

with the EEOC and the PHRC on February 6, 2020. Dual or cross

filing does not eliminate the administrative procedures of those

separate agencies. By filing with the PHRC, plaintiff subjected

himself to the procedures under the PHRA. See 43 Pa. C.S.A.

§ 962.1(e). Thus, for plaintiff to exhaust his administrative

remedies under the PHRA, the PHRC needs to dismiss his charge,

or he needs to wait a year after filing the charge. See 43 Pa.

C.S.A. § 962(c)(1). Neither event has occurred.

Accordingly, the motion of defendant to dismiss Counts

III and IV of the complaint for failure to exhaust

administrative remedies will be granted.

VI

Finally, defendant contends that this action must be

dismissed because plaintiff has failed to name the proper

defendant in the suit. According to defendant, Girard College

“has no legal existence independent of the Board of Directors of

the City Trusts, Trustee, acting on behalf of the City of

Philadelphia.” Plaintiff does not challenge defendant’s

assertion and “requests permission to file an amended complaint”

to “amend the defendant’s name.”

Our Court of Appeals has stated that, “to sue Girard

College, you must sue the Board of Directors as its trustee.”

In re School Asbestos Litigation, 56 F.3d 515, 517 (3d Cir.

1995). Plaintiff’s suit naming Girard College as the defendant

is clearly improper. Instead, plaintiff should have brought the

action against the Board of Directors of the City Trusts.

However, we do not find this oversight sufficiently deficient to

dismiss the complaint. We will deny the motion of defendant to

dismiss this action for failure to name the proper party,

provided plaintiff within 10 days files an amended complaint,

naming the correct defendant.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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