LARA v. SAMUEL ADAMS PENNSYLVANIA BREWERY COMPANY, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

____________________________________

ALEXIS LARA, :

Plaintiff, :

:

v. : No. 5:20-cv-0498

:

SAMUEL ADAMS PENNSYLVANIA :

BREWING COMPANY, LLC, individually :

and d/b/a SAMUEL ADAMS, SAMUEL :

ADAMS BREWERY COMPANY, LTD, :

SAMUEL ADAMS PENNSYLVANIA :

BREWING COMPANY, SAMUEL :

ADAMS, HTTS, INC., KEVIN MOYER, :

individually, EDWIN (last name unknown), :

individually, QUINCY TROUPE, :

individually, DERRICK (last name :

unknown), individually, BILL (last name :

unknown), individually, ALISON GLEN, :

individually, and LEWIS MARS, :

individually, :

Defendants. :

____________________________________

O P I N I O N

Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint for

Failure to State a Claim, ECF No. 9—GRANTED, in part, and DENIED, in part

Joseph F. Leeson, Jr. September 1, 2020

United States District Judge

I. INTRODUCTION

Alexis Lara is a Hispanic man who worked in a temporary position at the Samuel Adams

brewery in Breinigsville, Pennsylvania, from March 2018 until his termination on December 13,

2018. Lara now sues American Craft Brewery, LLC (“Sam Adams”),1 the staffing agency that

1 Defendants state that Lara has improperly named “Samuel Adams Pennsylvania Brewery

Company, LLC; Samuel Adams Brewery Company, Ltd.; Samuel Adams Pennsylvania Brewery

Company; and Samuel Adams as Defendants,” and that the proper corporate Defendant in this

placed him in his position at the brewery (“HTTS”), and seven individual Sam Adams

employees (collectively, “Defendants”), for alleged race-based discrimination, retaliation, and

hostile work environment during his tenure there. Presently before the Court is Defendants’

motion to dismiss Lara’s Amended Complaint in its entirety for failure to state a claim. For the

reasons set forth below, Defendants’ motion is granted, in part, and denied, in part.

II. BACKGROUND

A. Facts alleged in the Amended Complaint2

In March 2018, staffing agency HTSS, Inc. placed Lara, a Hispanic man,3 in a temporary

warehouse packager position at the Sam Adams brewery in Breinigsville, Pennsylvania.4 See

Lara’s Amended Complaint (“Am. Compl.”) [ECF No. 7] ¶¶ 2, 30, 47-48. The events that give

rise to the instant action began at the daily staff meeting on the morning of November 29, 2018.

Lara alleges that during that meeting, he overheard a white female employee comment to three

white male employees, “I am tired of HTSS hiring all these blacks and Puerto Ricans.” Id. ¶¶

action is “American Craft Brewery, LLC.” Defendants’ Memorandum in Support of their

Motion to Dismiss (“Defs.’ Mem.”) [ECF No. 9] at 1 n.1.

2 These facts are taken from the Amended Complaint and accepted as true, with all

reasonable inferences drawn in Lara’s favor. See Lundy v. Monroe Cty. Dist. Attorney’s Office,

No. 3:17-CV-2255, 2017 WL 9362911, at *1 (M.D. Pa. Dec. 11, 2017), report and

recommendation adopted, 2018 WL 2219033 (M.D. Pa. May 15, 2018). Except where necessary

for context, the Court’s recitation of the allegations of the Amended Complaint does not include

conclusory assertions or legal contentions, neither of which need be considered by the Court in

determining the viability of Lara’s claims. See Brown v. Kaiser Found. Health Plan of Mid-Atl.

States, Inc., No. 1:19-CV-1190, 2019 WL 7281928, at *2 (M.D. Pa. Dec. 27, 2019).

3 Lara refers to himself as “a member of the Black and/or African-American race” in the

portion of the Amended Complaint addressing his claims under 42 U.S.C. § 1981. Am. Compl.

¶ 221. In the rest of the Amended Complaint he states that he is Hispanic.

4 Lara avers that he “was hired by and received a paycheck from HTSS, Inc., however, the

day to day assignments and job responsibilities [he] carried out were controlled by Samuel

Adams.” Am. Compl. ¶ 31. The issue of which entity is properly considered Lara’s “employer”

for purposes of his claims—Sam Adams, HTTS, or both—is addressed in further detail below.

76-77, 80. In response, one of the male employees asked the woman, “[a]re you a racist?” to

which the woman responded, “[y]es.” Id. ¶ 81.

Lara states that the woman made both comments loudly and in his direction, and as a

result claims he was the intended recipient of the woman’s remarks. Am. Compl. ¶¶ 78-79, 82.

At some point after overhearing the remarks, Lara asked the female employee directly, “[d]id

you just say you are racist?” to which she responded, “[y]es.” Id. ¶¶ 84-85. Lara then raised his

hand to report the remarks to his supervisor, Kevin Moyer. Id. ¶¶ 86-87.

When the daily meeting was over, both the employee who made the comment and Lara

approached Moyer to talk about the incident. Am. Compl. ¶¶ 103-06. According to Lara, after

Moyer finished speaking with the employee who made the comments, he turned to “yell” at Lara

for interrupting the meeting and claiming that Lara could not have been able to hear the

purported comment as he was not sitting at the same table as the white employees. Id. ¶¶ 107-

13. Lara claims Moyer moreover dismissed the comment as a possible joke, stating that the

employee who made the comment “could have been joking. I already spoke to her.” Id. ¶ 118.

Moyer also stated that the female employee “has the right to be racist,” and Lara claims that

Moyer “repeated this sentiment multiple times throughout the conversation,” specifically, “that

‘she has the right to express racist views at work.’” Id. ¶¶ 128-29. Lara states that throughout

their interaction, Moyer was “aggressive, hostile, and agitated” by Lara’s attempt to report the

discriminatory comment. Id. ¶¶ 130-32. Moyer also allegedly rebuffed Lara’s request to talk to

him privately about the incident, forcing Lara to make the report in front of the employee he was

reporting. See id. ¶¶ 137-43.

Lara claims that about an hour after the meeting, “Defendant, Edwin and employee Jose

Torres approached [Lara] and informed [him] that the white, Caucasian employees who were

sitting at the table” where the comment was made “had asked both of them” for Lara’s identity.

Am. Compl. ¶ 145. According to Lara, “[a]fter making the report of discrimination and

harassment in the workplace, the hostile work environment was ratcheted up.” Id. ¶ 146.

The Amended Complaint avers that the remarks Lara overheard occurred within what

was an overall discriminatory climate at Sam Adams. See Am. Compl. ¶ 75. In particular, Lara

singles out for condemnation Sam Adams’ “yellow hat” and “white hat” system for

distinguishing temporary employees from permanent employees. Id. ¶¶ 59-68. Lara avers that

under this system, the temporary employees, who were almost all Hispanic, were forced to wear

yellow hard hats; the permanent employees, who were primarily white, were referred to as

“white hats.” Id. According to Lara, Defendants frequently referred to the Hispanic employees

as “yellow,” which Lara intimates was a derogatory method of identification. Id. ¶ 63. Lara

states that this system resulted in de facto segregation, separating the Hispanic and white

employees in work assignments and meetings and favoring “white hats” for preferential

treatment. See id. ¶¶ 68-70. Lara claims that, for example, “white hat” Caucasian employees sat

in the front of meetings, and “yellow hat” Hispanic employees sat in the back, occasionally

giving up seats to “white hats” if there were not enough chairs in the room. Id. ¶¶ 70-71.

Further, Lara avers that Defendants sometimes threw away food and bags that belonged to

“yellow hat” employees, but not “white hat” employees. Id. ¶¶ 72-73.

According to Lara, despite the segregated atmosphere, Sam Adams had a zero-tolerance

policy for discrimination and harassment in the workplace. Am. Compl. ¶ 90. In accordance

with this policy, the day prior to the November 29 meeting at which Lara overheard the racist

comment regarding temporary employees, “a yellow hat employee who was not white, or

Caucasian was escorted from the property and terminated for allegedly making a race-based

remark.” Id. ¶ 88. Lara points to the treatment of this “yellow hat” employee vis-à-vis the

hands-off approach taken with the white employee the following day as evidence of the unequal

enforcement of the zero-tolerance policy. See id. ¶ 92. He claims the failure of Defendants to

take action against racist behavior when perpetrated by white employees “condoned, sanctioned,

encouraged, and permitted the white, Caucasian employees to continue the severe and pervasive

discrimination and harassment in the workplace.” Id. ¶ 100.

Unsatisfied with Moyer’s response to his report of discriminatory behavior on November

29 and with what he perceived to be inconsistencies in the enforcement of the anti-discrimination

policy generally, Lara again attempted to report the incident of November 29—this time to

Quincy Troupe. Am. Compl. ¶ 148. Troupe was “the CEO for Samuel Adams.” Id. ¶ 149.

Troupe’s office redirected Lara to Defendant Derrick, Moyer’s direct supervisor. See id. ¶¶ 150-

52. Derrick told Lara he would talk to Moyer and promised to respond to Lara’s report by 2:00

p.m. the same day. See id. ¶¶ 153, 155. Lara avers that even though Derrick was in a position to

“conduct a meaningful investigation and initiate prompt corrective measures,” he ignored Lara at

2:00 p.m. and ultimately failed to respond or take corrective action. Id. ¶¶ 156-57. Lara claims

that, in fact, the opposite occurred: Just a few moments after punching out for the day, Lara

received a text message informing him he would not be working the following day, Friday,

November 30, 2018. Id. ¶ 158. Lara also learned that his overtime hours for the subsequent

Saturday were being canceled. Id. ¶ 160. According to the Amended Complaint, no one else

Lara worked with had their overtime cancelled; rather, this measure, along with having his

Friday hours cancelled, was part of “Defendants’ campaign of retaliation” against Lara. Id. ¶¶

159-61.

The following Monday, December 3, 2018, Lara attempted to report the perceived

discriminatory conduct he experienced to Defendant Bill, who worked in the corporate section of

the brewery.5 See Am. Compl. ¶ 165. As to this report, Lara explains as follows:

Plaintiff provided Defendant Bill with a detailed account of everything that had

transpired up until that point, beginning with [the female employee’s]

discriminatory comments and claim that she was racist, to Kevin Moyer’s refusal

to allow Plaintiff to report the discrimination, to Defendant, Derrick’s promise and

failure to respond by 2:00 P.M. the same day, to the text messages immediately

thereafter eliminating Plaintiff [sic] hours and benefits, and Defendant, Kevin

Moyer’s aggressive conduct, and the employees targeting Plaintiff after Plaintiff

made the reports.

Id. ¶ 166. According to Lara, although Bill promised to take action and appeared “shocked and

sympathetic” at Lara’s report, id. ¶ 167, he ultimately “refused to take corrective action in

response to [Lara’s] reports of discrimination and harassment in the workplace. There was no

investigation and no ameliorative response,” id. ¶ 184.

The Amended Complaint goes on to aver that as Lara was leaving Bill’s office, he

discovered that Moyer had been standing outside of the room the entire time that Lara was

talking with Bill. Am. Compl. ¶ 168. Moyer then asked Lara, “everything OK here?” and,

“what were you doing up there?” Id. ¶¶ 170, 176-77. According to the Amended Complaint,

Moyer proceeded to tell Lara that he was “jumping the gun,” to which Lara replied, “I do not feel

that you handled the situation correctly.” Id. ¶¶ 178-79. In response, Moyer stated, “[w]ell you

were not there and it is our word versus your word,” which Lara alleges “indicated the concerted

effort to deny [Lara] the ability to safely report discrimination and harassment in the workplace.”

Id. ¶¶ 180-81.

5 It is not clear from the Amended Complaint exactly what position “Defendant Bill” held

at Sam Adams.

On Wednesday, December 5, 2018, Lara contacted Sam Adams’ antidiscrimination and

harassment hotline to report the events of the previous week. Am. Compl. ¶ 185. In response,

on December 7, 2018, Alison Glen, a representative of Sam Adams’ Human Resources

Department, contacted Lara. Id. ¶ 187. After explaining what he perceived to be the

discriminatory treatment of Hispanic employees generally, as well as the discrete instances of

perceived discrimination and harassment he suffered, Lara claims that Alison “promised to keep

Defendant Kevin Moyer away from [Lara] and investigate the issue,” however, “[t]his is not

what occurred.” Id. ¶¶ 188-93. According to Lara, on Tuesday, December 11, 2018, he

“received a received a voicemail from Defendant Alison saying that she was still working on the

investigation and would get back to [him] as soon as possible,” yet “[b]y Thursday December 13,

2018, [Lara] did not receive a single response to any of the numerous reports of discrimination

and harassment in the workplace” that he had made. Id. ¶¶ 195-96.

Following the recommendation of a “white hat” employee, on the same day—December

13—Lara made one final report, this time to Defendant Lewis Mars.6 Am. Compl. ¶¶ 197-98.

According to the Amended Complaint, Mars “acted sincere and apologized on behalf of Samuel

Adams,” and “claimed to take ‘events like this seriously.’” Id. ¶¶ 199-200. However, Lara

claims that just two hours after this report, he was terminated for purportedly violating a safety

policy by “wearing ear buds.”7 Id. ¶¶ 201-02. He avers that “[a]t no time did [he] wear ear buds

during his employment for Defendants,” and rather, claims he was fired “due to his race, national

6 Although it is not clear from the Amended Complaint exactly what position Mars held at

Sam Adams, Lara claims (in conclusory fashion) that “Mars was directly involved in the

decision to unlawfully terminate Plaintiff’s employment as part of Defendants’ campaign of

retaliation.” Am. Compl. ¶ 28.

7 “Ear buds” are wireless headphones.

origin, and in retaliation for Plaintiff’s ongoing reports of discrimination and harassment in the

workplace.” Id. ¶ 204.

Based upon the above factual allegations, Lara purports to assert the following causes of

action:8 (1) employment discrimination, retaliation, and hostile work environment based on race

in violation of 42 U.S.C. § 1981, see Am. Compl. ¶¶ 219-30; (2) discrimination and hostile work

environment based on race, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),

see id. ¶¶ 231-39; (3) retaliation in violation of Title VII, see id. ¶¶ 240-48; (4) discrimination

based on race,9 in violation of the Pennsylvania Human Relations Act (“PHRA”), see id. ¶¶ 249-

52; (5) retaliation in violation of the PHRA, see id. ¶¶ 253-55; and (6) aiding and abetting

discrimination based on race, in violation of the PHRA, see id. ¶¶ 256-58.

B. Procedural background

Lara filed the initial Complaint in this action on January 29, 2020. See ECF No. 1. On

May 4, 2020, Defendants jointly moved to dismiss the Complaint. See ECF No. 6. In response

to this motion, Lara filed his Amended Complaint on May 18, 2020, which remains the operative

pleading. See ECF No. 7. Defendants filed their motion to dismiss the Amended Complaint on

June 1, 2020. See ECF No. 9. Lara filed opposition to the motion on June 15, 2020, see ECF

8 By listing the causes of action as they appear in the Amended Complaint, the Court does

not endorse them as viable or properly pleaded; they are simply reproduced for clarity.

9 Lara states that this claim is also based upon alleged discrimination due to his “color and

gender,” as well as discrimination “against [Lara] due to [his] disability and request for

reasonable accommodations.” Am. Compl. ¶ 251. There are no allegations in the Amended

Complaint to support claims of discrimination based on Lara’s “color,” “gender,” or “disability.”

Similarly, although Lara claims discrimination based upon his “national origin” at several points

in the Amended Complaint, see, e.g., Am. Compl. ¶¶ 232-37, there are insufficient allegations to

sustain a claim of discrimination based upon national origin. Indeed, Lara does not allege any

facts with respect to his national origin. For these reasons, the Court construes Lara’s claims to

be alleging discrimination based on his race alone, and limits its analysis to this construction.

No. 10, and Defendants filed a reply memorandum in further support of their motion on June 22,

2020, see ECF No. 11.

III. LEGAL STANDARD

A. Motions to dismiss under Rule 12 (b)(6) for failure to state a claim

In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court clarified the appropriate

pleading standard in federal civil actions and set forth a two-step approach to be used when

deciding motions to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim.

First, district courts are to “identify [ ] pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. “A pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action

will not do.’” Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see

Thourot v. Monroe Career & Tech. Inst., No. CV 3:14-1779, 2016 WL 6082238, at *2 (M.D. Pa.

Oct. 17, 2016) (explaining that “[a] formulaic recitation of the elements of a cause of action”

alone will not survive a motion to dismiss). Though “legal conclusions can provide the

framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at

679.

Second, if a complaint contains “well-pleaded factual allegations, a court should assume

their veracity and then determine whether they plausibly give rise to an entitlement to relief.”

Iqbal, 556 U.S. at 679. A claim plausibly gives rise to an entitlement to relief “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. at 678. This standard, commonly referred as the

“plausibility standard,” “is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556-

57). It is only where the “[f]actual allegations . . . raise a right to relief above the speculative

level” that the plaintiff has stated a plausible claim.10 Phillips v. Cty. of Allegheny, 515 F.3d

224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 555).

Putting these steps together, the Court’s task in deciding a motion to dismiss for failure to

state a claim is to determine whether based upon the facts as alleged, which are taken as true, and

disregarding legal contentions and conclusory assertions, the complaint states a claim for relief

that is plausible on its face. Iqbal, 556 U.S. at 679; Ashford v. Francisco, No. 1:19-CV-1365,

2019 WL 4318818, at *2 (M.D. Pa. Sept. 12, 2019) (“To avoid dismissal under Rule 12(b)(6), a

civil complaint must set out sufficient factual matter to show that its claims are facially

plausible.”).

Additionally, in adjudicating a Rule 12(b)(6) motion, the scope of what may be considered

is necessarily constrained: A court may “consider only the complaint, exhibits attached to

the complaint, matters of public record, as well as undisputedly authentic documents if the

complainant’s claims are based upon these documents.”11 United States v. Gertsman, No. 15-

8215, 2016 WL 4154916, at *3 (D.N.J. Aug. 4, 2016) (quoting Guidotti v. Legal Helpers Debt

Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013)).

10 As the Supreme Court counseled, “[d]etermining whether a complaint states a plausible

claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Iqbal, 556 U.S. at 679

11 A court adjudicating a Rule 12(b)(6) motion may also take judicial notice of certain

undisputed facts. See Devon Drive Lionville, LP v. Parke Bancorp, Inc., No. CV 15-3435, 2017

WL 5668053, at *9 (E.D. Pa. Nov. 27, 2017).

B. Pleading standards for employment discrimination and retaliation claims:

the prima facie elements need not be pleaded

At the outset, it is important to note that with respect to certain employment

discrimination claims,12 a plaintiff need not plead the prima facie elements to survive a motion to

dismiss. See Dreibelbis v. Cty. of Berks, 438 F. Supp. 3d 304, 313 (E.D. Pa. 2020) (explaining

that “the plaintiff ‘[is] not required to plead a prima facie case in order to survive a motion to

dismiss.’” (quoting Kelly v. H.D. Supply Holdings, Inc., No. CIV. 14-372, 2014 WL 5512251, at

*3 (D.N.J. 2014))); see Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002) (explaining that

“under a notice pleading system, it is not appropriate to require a plaintiff to plead facts

establishing a prima facie case” of employment discrimination). Rather, these claims require

“facial plausibility,” meaning that the allegations must state “enough facts to raise a reasonable

expectation that discovery will reveal evidence of [the claim’s] necessary element[s].”

Dreibelbis, 438 F. Supp. 3d at 313-14 (quoting Connelly v. Lane Const. Corp., 809 F.3d 780,

789 (3d Cir. 2016)).

The reason for reviewing employment discrimination and retaliation claims in this

manner at the pleading stage is as follows. At the burden of proof stage, these claims are

generally subject to the burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). Under this framework,

the plaintiff must first establish a prima facie case of discrimination . . . . If a

plaintiff establishes a prima facie case, the burden shifts to the employer to

“articulate some legitimate, nondiscriminatory reason” for the adverse action

against the employee. The plaintiff then must establish by a preponderance of the

evidence that the employer's proffered reasons were merely a “pretext for

discrimination, and not the real motivation for the unfavorable job action.”

12 As explained below, this pleading standard does not appear to apply to claims of hostile

work environment.

Jajua v. Diakon Lutheran Soc. Ministries, 299 F. Supp. 3d 645, 652 (E.D. Pa. 2018) (quoting

Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003)). However, “the McDonnell

Douglas framework does not apply in every employment discrimination case. For instance, if a

plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all

the elements of a prima facie case.”13 Swierkiewicz, 534 U.S. at 511 (emphasis added). For this

reason, the Supreme Court in Swierkiewicz v. Sorema recognized that it would be “incongruous

to require a plaintiff, in order to survive a motion to dismiss, to plead more facts”—i.e., facts

satisfying the prima facie elements of his claim—“than he may ultimately need to prove to

succeed on the merits if direct evidence of discrimination is discovered.” Id. at 506; see Kelly,

2014 WL 5512251, at *4 (“Plaintiff need not plead all the elements of a prima facie case of

discrimination because those elements may not be required at trial. Instead, plaintiff's claim must

be facially plausible and give fair notice to the defendants of the basis of the claim.”).

Importantly, this deferential pleading standard for employment discrimination and

retaliation claims14 has survived the transition of the general pleading standard from a “no set of

13 Significantly, at the motion to dismiss stage, the Court does not engage in fact finding or

with issues of evidence, proof, or burdens of proof; rather, the Court accepts all well-pleaded

factual allegations as true. Therefore, the framework set forth in McDonnell Douglas and its

shifting burdens of proof are inapplicable to the instant analysis. See, e.g., Bartlett v. Kutztown

Univ., No. 13–4331, 2015 WL 766000, at *8 n.11 (E.D. Pa. Feb. 23, 2015) (noting that a plaintiff

responding to a Rule 12(b)(6) motion “need not establish by a preponderance of evidence that

Defendants’ purported reason for terminating Plaintiffs’ employment . . . was a pretext for

discriminatory conduct” because “the McDonnell Douglas burden-shifting standard does not

apply” at the motion to dismiss stage).

14 Retaliation is a species of discrimination. Darrington v. Milton Hershey Sch., 958 F.3d

188, 196 (3d Cir. 2020) (“Retaliation is . . . a form of ‘discrimination’ because the complainant is

subjected to differential treatment.” (quoting Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,

173-74 (2005))); see Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (“If an

employee establishes a prima facie case of retaliation under the ADA, the burden shifts to the

employer to advance a legitimate, non-retaliatory reason for its adverse employment action.”).

Accordingly, plaintiffs asserting claims of retaliation need not allege the prima facie elements of

their claims to survive a motion to dismiss. See Connelly v. Lane Const. Corp., 809 F.3d 780,

facts” standard under Conley v. Gibson, 355 U.S. 41 (1957),15 to the current “plausibility”

standard ushered in by Bell Atl. Corp. v. Twombly and later Ashcroft v. Iqbal. See Lee v. Univ. of

Pennsylvania, Sch. of Dental Med., No. CV 19-835, 2019 WL 4060843, at *5 (E.D. Pa. Aug. 27,

2019) (“Although [Swierkiewicz] pre-dated Twombly and Iqbal, the Third Circuit has continued

to follow its guidance in Title VII cases thereafter.”)16

The Court proceeds to address Lara’s causes of action with this framework in mind.

IV. ANALYSIS

As a general matter, “[c]laims of race-based employment discrimination under Section

1981, Title VII, and the PHRA are analyzed coextensively.”17 McKinney v. Supreme Mid-Atl.

789 (3d Cir. 2016) (explaining that a plaintiff’s “retaliation claim may survive [a] motion to

dismiss if she pleads sufficient factual allegations to raise a reasonable expectation that discovery

will reveal evidence” of the prima facie elements).

15 The standard articulated in Conley, which preceded the current standard, held that “a

complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

Conley, 355 U.S. at 45-46.

16 District courts continue to follow the rule set forth in Swierkiewicz. See, e.g., Sztroin v.

PennWest Indus. Truck, LLC, No. CV 17-665, 2017 WL 4355575, at *4 (W.D. Pa. Oct. 2, 2017)

(explaining that a Title VII plaintiff need not “establish a prima facie case” in order to survive a

motion dismiss; rather, the plaintiff “need only set forth sufficient facts to raise a reasonable

expectation that discovery will reveal evidence that [she] was a member of a protected class and

that she suffered an adverse employment action”); Watson v. Department of Services for

Children, Youths and Their Families Delaware, 2013 WL 1222853, * 4 (D. Del. Mar. 26, 2013)

(reviewing the sufficiency of a Title VII race discrimination claim and concluding that “a

complaint in an employment discrimination lawsuit need not contain specific facts establishing

a prima facie case of discrimination under McDonnell Douglas,” as well as collecting cases);

Pietek v. Don Rosen Imports, 2013 WL 968294, *2 (E.D. Pa., March 13, 2013) (explaining, with

respect to Swierkiewicz, that “[a]lthough th[e] decision pre-dated Twombly and Iqbal, the Third

Circuit has continued to follow its guidance in Title VII cases decided thereafter”).

17 However, it is important to note that “a claim of disparate impact”—as opposed to

disparate treatment—“is unavailable under § 1981.” Castleberry v. STI Grp., 863 F.3d 259, 267

(3d Cir. 2017) (emphasis added). The Supreme Court has explained that Ҥ 1981 was enacted to

prevent purposeful discrimination and ‘did not include practices that were neutral on their face . .

. but that had the incidental effect of disadvantaging blacks to a greater degree than whites.’” Id.

(quoting Gen. Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375, 388 (1982)). Lara’s

Corp., No. 1:17-CV-2024, 2018 WL 6182058, at *3 (M.D. Pa. Nov. 27, 2018) (citing

Castleberry, 863 F.3d at 263 (addressing § 1981 and Title VII claims) and Huston v. Procter &

Gamble Paper Prods. Corp., 568 F.3d 100, 104 n.2 (3d Cir. 2009) (addressing Title VII and

PHRA claims)); Williams v. Verizon New Jersey, Inc., No. CV 2:19-09350, 2020 WL 1227663,

at *7 (D.N.J. Mar. 12, 2020) (“The elements of a § 1981 discrimination claim likewise parallel

those of a Title VII claim.”); Hewitt v. BS Transportation of Illinois, LLC, 355 F. Supp. 3d 227,

237 (E.D. Pa. 2019) (“The proper analysis under Title VII and the Pennsylvania Human

Relations Act is identical, as Pennsylvania courts have construed the protections of the two acts

interchangeably.” (quoting Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001))). Because

Lara’s claims for disparate treatment discrimination, retaliation, and hostile work environment

are brought under § 1981, Title VII, and the PHRA, these claims are analyzed together.18

The Court first addresses each claim with respect to Sam Adam: Based upon the

allegations in the Amended Complaint and for purpose of Defendants’ motion, Lara has

adequately alleged that he and Sam Adams shared an employee-employer relationship.19 The

discrimination claims appear to be limited to disparate treatment claims. See, e.g., Am. Compl. ¶

223.

18 There is one exception to this observation: Lara does not appear to assert a hostile work

environment claim under the PHRA, and rather only claims of discrimination and retaliation.

19 Notwithstanding that Lara admits he “was hired by and received a paycheck from HTSS,

Inc.,” Am. Compl. ¶ 31, at this stage of the proceedings, the Court finds that Lara has met his

burden of alleging that he and Sam Adams shared an employee-employer relationship for

purposes of the statutory provisions under which he is suing. See Shah v. Bank of Am., 346 F.

App’x 831, 834 (3d Cir. 2009) (“In order to determine whether a person is an employee for

purposes of Title VII, the common law of agency and the traditional master-servant doctrine

applies. To that end, the court should consider: the hiring party’s right to control the manner and

means by which the product is accomplished [;] . . . the skill required; the source of the

instrumentalities and tools; the location of the work; the duration of the relationship between the

parties; whether the hiring party has the right to assign additional projects to the hired party; the

extent of the hired party’s discretion over when and how long to work; the method of payment;

the hired party's role in hiring and paying assistants; whether the work is part of the regular

business of the hiring party; whether the hiring party is in business; the provision of employee

Court subsequently addresses whether liability may properly lie against HTTS or any of the

individual Defendants.

A. Disparate treatment discrimination: Lara has sufficiently pleaded his claims

“To set forth a claim for disparate treatment employment discrimination,” a plaintiff must

plead facts that “‘raise a reasonable expectation that discovery will reveal evidence’ of the

following prima facie elements:” (1) that he is a member of a protected class; (2) that he was

qualified for the position sought to be retained; (3) that he suffered an adverse employment

action; and (4) that either similarly-situated non-members of the protected class were treated

more favorably, or the adverse job action occurred under circumstances that could indicate that

Lara’s protected status played a motivating or determinative factor in the adverse action.20

benefits; and the tax treatment of the hired party.” (quoting Nationwide Mut. Ins. Co. v. Darden,

503 U.S. 318, 322-24 (1992))).

20 The statutory language of the relevant provision of 42 U.S.C. § 1981 reads as follows:

All persons within the jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by white citizens, and shall be subject

to like punishment, pains, penalties, taxes, licenses, and exactions of every kind,

and to no other

42 U.S.C. § 1981(a).

The statutory language of the relevant provision of Title VII reads as follows:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual's race, color,

religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in

any way which would deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an employee, because of

such individual's race, color, religion, sex, or national origin.

McKinney, 2018 WL 6182058, at *3 (quoting Connelly, 809 F.3d at 789, 791); see Nerviano v.

Contract Analysis Sys., LLC, No. CV 17-4907, 2018 WL 2240533, at *5 (E.D. Pa. May 16,

2018) (citing Wallace v. Federated Dep't Stores, Inc., 214 F. App’x 142, 144-45 (3d Cir. 2007));

see also Castleberry, 863 F.3d at 266 (explaining that the prima facie elements of a disparate

treatment claim under § 1981 require a plaintiff to show “(1) that he belongs to a racial minority;

(2) an intent to discriminate on the basis of race by the defendant; and (3) discrimination

concerning one or more of the activities enumerated in § 1981.”).

The Court finds that Lara has pleaded sufficient facts to state claims of disparate

treatment discrimination based on race in violation of § 1981, Title VII, and the PHRA. In

particular, he states that he is of Hispanic descent, and is therefore a racial minority and a

member of a protected class. See Am. Compl. ¶ 2. The Amended Complaint further alleges that

at all relevant times, Lara was qualified for his position and satisfied all relevant job

requirements, an allegation that is further supported by the length of his tenure at Sam Adams.

See id. ¶ 50. Nor can it be disputed that Lara suffered an adverse employment action in the form

42 U.S.C. § 2000e-2(a).

The statutory language of the relevant provision of the PHRA reads as follows:

It shall be an unlawful discriminatory practice . . . .

(a) For any employer because of the race, color, religious creed, ancestry, age, sex,

national origin or non-job related handicap or disability or the use of a guide or

support animal because of the blindness, deafness or physical handicap of any

individual or independent contractor, to refuse to hire or employ or contract with,

or to bar or to discharge from employment such individual or independent

contractor, or to otherwise discriminate against such individual or independent

contractor with respect to compensation, hire, tenure, terms, conditions or

privileges of employment or contract, if the individual or independent contractor is

the best able and most competent to perform the services required.

43 PA. CONS. STAT. § 955(a).

of his termination.21 See id. ¶¶ 201-02. Finally, the Court finds that the Amended Complaint’s

allegations are sufficient to give rise to a reasonable expectation that discovery will reveal

evidence that either (i) similarly-situated non-Hispanic employees of Sam Adams were treated

more favorably than Lara, and/or (ii) that Lara’s termination occurred under circumstances that

could indicate that his race played a motivating or determinative factor in his termination.

As to this final element—more favorable treatment for non-Hispanic employees or

circumstances indicating race motivated the termination—drawing all reasonable inferences in

Lara’s favor, the Court finds the following allegations in particular, and in combination with one

another, are sufficient for Lara to meet his burden at this stage of the litigation: (i) the comment

and admission of racism by the white employee on November 29,22 see id. ¶¶ 76-85; (ii) Moyer’s

alleged dismissal of the comment as a potential joke and his comment that the employee has the

right to be racist, see id. ¶¶ 118-29; (iii) the termination of a non-white employee the preceding

day for similar behavior, see id. ¶ 88; (iv) Defendants’ failure to address what Lara perceived as

a racially insensitive work atmosphere despite Lara’s multiple complaints, see id. ¶ 166; and (v)

the circumstances of Lara’s termination—in particular, his denial of having ever worn ear buds

while working for Defendants, the purported justification for his termination, see id. ¶¶ 201-03.

21 “Certainly . . . termination constitutes an adverse employment action for purposes of [ ]

racial discrimination claims.” Larochelle v. Wilmac Corp., 210 F. Supp. 3d 658, 691 (E.D. Pa.

2016).

22 Defendants argue that Lara’s disparate treatment claim under § 1981 fails as a matter of

law because the Amended Complaint’s allegations “fail to provide any basis to support a

contention that Sam Adams or HTSS intentionally discriminated against [Lara] on the basis of

his race (Hispanic), as required by Section 1981. To the contrary, the initial statement that was

allegedly made makes no reference to [Lara’s] race and refers to national origin—which is not

actionable pursuant to Section 1981.” Defs.’ Mem. at 8. The Court finds this argument to be

without merit. The alleged comment’s reference to “blacks and Puerto Ricans,” Am. Compl. ¶

77, is, in combination with Lara’s other allegations, sufficient to implicate race as opposed to

solely national origin.

For these reasons, the Court finds that Lara has successfully stated claims for disparate

treatment discrimination based upon race against Sam Adams in violation of § 1981, Title VII,

and the PHRA.

B. Retaliation: Lara has sufficiently pleaded his claims

To state a claim of retaliation under § 1981, Title VII, and the PHRA, a plaintiff must

plead facts that raise a reasonable expectation that discovery will lead to evidence capable of

satisfying the following elements: that “(1) she engaged in activity protected by [the relevant

statute]; (2) the employer took an adverse employment action against her; and (3) there was a

causal connection between her participation in the protected activity and the adverse employment

action.” 23 Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson

v. Upsala Coll., 51 F.3d 383, 386 (3d Cir.1995)), as amended (Sept. 13, 2006). “With respect to

23 The anti-retaliation provision of Title VII, which is distinct from the general

discrimination provision, provides as follows:

It shall be an unlawful employment practice for an employer to discriminate against

any of his employees . . . because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing

under this subchapter.

42 U.S.C. § 2000e–3(a).

The anti-retaliation provision of the PHRA is also distinct from the general

discrimination provision, and provides as follows:

It shall be an unlawful discriminatory practice . . . .

(d) For any person, employer, employment agency or labor organization to

discriminate in any manner against any individual because such individual has

opposed any practice forbidden by this act, or because such individual has made a

charge, testified or assisted, in any manner, in any investigation, proceeding or

hearing under this act.

43 PA. CONS. STAT. § 955(d).

‘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, 461 F.3d at 341 (quoting Slagle v.

County of Clarion, 435 F.3d 262, 266 (3d Cir. 2006)); see Curay-Cramer v. Ursuline Acad. of

Wilmington, Delaware, Inc., 450 F.3d 130, 135 (3d Cir. 2006) (“[O]pposition to an illegal

employment practice must identify the employer and the practice—if not specifically, at least by

context.”). Moreover, “[i]n retaliation claims under § 1981, a plaintiff must establish an

underlying § 1981 violation.”24 Brennan v. City of Philadelphia, No. CV 18-1417, 2020 WL

3574454, at *7 n.4 (E.D. Pa. June 30, 2020) (citing Estate of Oliva v. State of NJ, 604 F.3d 788,

798 (3d Cir. 2010)). “In doing so, the plaintiff ‘must have acted under a good faith, reasonable

belief that a [§ 1981] violation existed.’” Castleberry v. STI Grp., 863 F.3d 259, 267 (3d Cir.

2017) (quoting Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015)).

The Court finds that Lara has adequately pleaded a claim of race-based retaliation under

§ 1981, Title VII, and the PHRA, as explained below.

24 There is some confusion in the case law as to what is needed to satisfy this prerequisite,

which appears to be unique to the Third Circuit. See Anderson v. Boeing Co., No. CV 15-3073,

2016 WL 9446648, at *23 (E.D. Pa. Aug. 30, 2016) (“In a recent opinion, Judge Baylson

discussed at some length the ‘jurisdictional tension’ that has resulted from the Third Circuit's

statement in Olivia. See Ellis v. Budget Maint., Inc., 25 F. Supp. 3d 749, 754-57 (E.D. Pa. 2014).

Judge Baylson noted, for instance, that the Third Circuit is the only circuit court that requires

plaintiffs to demonstrate an underlying § 1981 violation and that in subsequent nonprecedential

opinions, the Third Circuit has cited Olivia without referencing the underlying-violation

requirement.”), aff'd, 694 F. App'x 84 (3d Cir. 2017); Collins v. Kimberly-Clark Penn., LLC, 247

F. Supp. 3d 571, 604-05 (E.D. Pa. 2017) (stating that “as a threshold matter, the plaintiff must

demonstrate that there has been an underlying § 1981 race discrimination violation in a 1981

retaliation case”), aff'd, 708 F. App’x 48 (3d Cir. 2017) (citing Estate of Oliva, 604 F.3d at 798).

However, this is of no moment: As the Court has found that Lara has stated a claim for

underlying disparate treatment discrimination under § 1981, he has met his burden.

First, Lara alleges that he opposed what he had a good faith belief was unlawful under

each of these statutes: race-based discrimination in the workplace. Specifically, Lara attempted

to report to multiple supervisors what he perceived to be (i) a discriminatory, race-based

comment by a coworker, (ii) unequal enforcement of Sam Adams’ zero-tolerance discrimination

policy, supported by his observation that a non-white employee had been terminated for similarly

making a race-based comment, and (iii) the general failure of supervisors to take his multiple

reports seriously and their failure to institute corrective measures. See, e.g., ¶¶ 88, 92, 166, 185,

192, 197-98.

Second, as the Court has already established, it cannot be disputed that Lara suffered an

adverse employment action in the form of his termination. See id. ¶¶ 201-02.

Finally, from Lara’s allegations, the Court can draw an inference of—or, at a minimum,

reasonably expect that discovery will lead to evidence supporting—a causal connection between

his multiple reports of perceived unlawful discrimination at Sam Adams and his ultimate

termination. In particular, a temporal connection exists between Lara’s reports and his

termination—he states he was terminated approximately two weeks after making his first report

of alleged discrimination, and only two hours after making his final report, to Lewis Mars. See

id. ¶¶ 197-202; see also Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir.2007) (“In

certain narrow circumstances, an unusually suggestive proximity in time between the protected

activity and the adverse action may be sufficient, on its own, to establish the requisite causal

connection.”). Moreover, as previously discussed in the context of Lara’s discrimination claim,

of relevance is Lara’s complete denial of having ever worn ear buds—the purported justification

for his termination. See Am. Compl. ¶¶ 201-03.

From these allegations, the Court is satisfied that Lara has adequately stated his claims of

race-based retaliation in violation of § 1981, Title VII, and the PHRA.

C. Hostile work environment: Lara has failed to sufficiently plead his claims

To state a hostile work environment claim under the relevant statutes, a plaintiff must

adequately plead that: “1) [the plaintiff] suffered intentional discrimination because of his/her

[race], 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected

the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like

circumstances, and 5) the existence of respondeat superior liability [meaning the employer is

responsible].’”25 Castleberry, 863 F.3d at 263. A court reviewing allegations in support of a

claim of hostile work environment must evaluate “[t]he totality of the circumstances[, which]

may 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.” Suri v. Foxx, 69 F. Supp. 3d 467, 480 (D.N.J. 2014)

(quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). As to severity, “not all

conduct is actionable under a hostile work environment claim. ‘The discriminatory conduct must

be so extreme as to amount to a change in the terms and conditions of employment. Unless they

are extremely severe, offhand comments and isolated incidents are insufficient to sustain a

25 “Hostile environment claims are . . . not subject to the McDonnell Douglas burden

shifting framework.” Barnett v. Lowes Home Centers, LLC, No. CV 18-2064, 2019 WL

1047496, at *10 (E.D. Pa. Mar. 5, 2019). As discussed at length previously, application of the

McDonnell Douglas framework—or, more accurately, non-application of the McDonnell

Douglas framework in cases where direct evidence of discrimination is adduced—provides the

justification for dispensing with the requirement of pleading the prima facie elements of

discrimination and retaliation claims. Because this framework does not apply to hostile work

environment claims at the burden of proof stage, the more deferential standard applicable to

discrimination and retaliation claims similarly does not apply to hostile work environment claims

at the pleading stage.

hostile work environment claim.’” Williams v. Mercy Health Sys., 866 F. Supp. 2d 490, 501

(E.D. Pa. 2012) (quoting Woodard v. PHB Die Casting, 255 F. App’x 608, 609 (3d Cir. 2007)).

As to the final element—the existence of respondeat superior liability—“[a]n employer is subject

to vicarious liability to a victimized employee for an actionable hostile work environment

created by a supervisor with immediate (or successively higher) authority over the employee.”

Castleberry, 863 F.3d at 266 n.1 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 795

(1998)).

The Court finds that Lara has failed to allege facts capable of making out a claim of race-

based hostile work environment, for two primary reasons: (1) the conduct of which Lara

complains is insufficiently severe or pervasive to support a hostile work environment claim; and

(2) to the extent Lara alleges discriminatory conduct, such conduct constitutes discrete acts rather

than a series of events capable of supporting a hostile work environment claim. The Court

elaborates on these reasons below.

First, although the Amended Complaint is replete with conclusory assertions that

Defendants’ discriminatory conduct was “severe” and “pervasive,” see, e.g., Am. Compl. ¶¶ 74-

75, 100, 201, the Court disagrees that the alleged conduct rises to this level. The actions of

which Lara complains can be distilled to the following: (i) the November 29, 2018 comment

made by a white employee that “I am tired of HTSS hiring all these blacks and Puerto Ricans,”

id. ¶¶ 76-77, 80, and that employee’s affirmation that she is a racist, id. ¶ 81; (ii) Moyer’s

dismissal of the comment as a “joke” and his comment that the employee has the right to be

racist, id. ¶¶ 128-29; (iii) the “white hat,” “yellow hat” identification system and the alleged de

facto segregation in which it resulted, see id. ¶¶ 59-73; (iv) Lara’s loss of hours and overtime

hours, id. ¶¶ 158-60; (v) the fact that Moyer was outside of Defendant Bill’s office when Lara

was making his report and that Moyer subsequently stated that it was “our word versus your

word,” id. ¶¶ 168-81; (vi) Lara’s frustration with what he perceived as a general failure to take

action on his complaints, see id. ¶ 166; and finally, (vii) Lara’s ultimate termination on

December 13, 2018, see id. ¶ 201.

In the Court’s view, even assuming that these occurrences together possessed a racial

component sufficient to satisfy the first element of Lara’s hostile work environment claim, they

do not constitute the kind of “extremely severe” conduct capable of supporting such a claim. In

particular, the period during which the complained-of conduct occurred was only approximately

two weeks—from November 29, 2018, to December 13, 2018—and, moreover, none of the

conduct was physically threatening or severely humiliating. With the exception of his loss of

hours and termination—which are addressed below—Lara’s grievances are with Defendants’

failure to take corrective action for a derogatory comment made by a coworker to other

coworkers that Lara believes he was meant to hear, as well as a perceived general disrespect

fostered by the “white hat” “yellow hat” system.26 As such, in the Court’s view, Lara’s

allegations are insufficient to support his race-based hostile work environment claim. See, e.g.,

Mahan v. City of Philadelphia, 296 F. Supp. 3d 712, 721 (E.D. Pa. 2017) (“[T]he Amended

Complaint fails to allege any facts suggesting discrimination that was ‘severe or pervasive’ so as

to make the [ ] work environment abusive or hostile. Plaintiff nowhere cites physically

threatening or humiliating conduct or offensive utterances made to Plaintiff. The allegation that

Plaintiff was denied job transfers does not suggest the type of ‘severe or pervasive’

26 Lara appears to concede this, as in his opposition to Defendants’ motion, he states that

“Defendants’ argument ignores the pervasiveness of a segregated workforce and particularly a

segregated workforce where one race is subjected to daily harassment and abuse.” Plaintiff’s

Memorandum in Opposition (“Pl.’s Opp’n.”) [ECF No. 10] at 9.

discriminatory conduct that would create an abusive or hostile work environment as opposed to

constituting discriminatory treatment.”); Abramson v. William Paterson Coll. of N.J., 260 F.3d

265, 280 (3d Cir. 2001) (“Title VII is not violated by the mere utterance of an . . . epithet which

engenders offensive feelings in an employee or by mere discourtesy or rudeness, unless [it is] so

severe or pervasive as to constitute an objective change in the conditions of employment.”)

(internal quotation marks and citation omitted); compare Hewitt v. BS Transportation of Illinois,

LLC, 355 F. Supp. 3d 227, 236 (E.D. Pa. 2019) (finding that a plaintiff’s hostile work

environment claim survived a motion to dismiss where the plaintiff alleged he “was subject to

sexual advances ‘at least once or twice a week,’ an instance of sexual assault, and threats of

violence that resulted in extreme emotional distress and economic loss”).

As to the second reason that the Court finds Lara’s hostile work environment claims fail,

to the extent he grounds these claims on his alleged discriminatory and retaliatory loss of hours

and ultimate termination, such events are discrete acts that cannot serve the purpose Lara desires.

As the Supreme Court has explained, “[h]ostile environment claims are different in kind from

discrete acts. Their very nature involves repeated conduct. The ‘unlawful employment practice’

therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps

years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on

its own.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002) (citation and

quotation omitted) (“Discrete acts such as termination, failure to promote, denial of transfer, or

refusal to hire are easy to identify.”); see Santee v. Lehigh Valley Health Network, Inc., No.

CIV.A. 13-3774, 2013 WL 6697865, at *7 (E.D. Pa. Dec. 19, 2013) (“Plaintiff's termination on

June 30, 2010, however, is a discrete act and is not a component of a hostile work environment

claim.”); Riddell v. Slippery Rock Univ., No. CIV A 04-108, 2006 WL 2773414, at *12 (W.D.

Pa. Sept. 25, 2006) (“Plaintiff's claims, however, are not hostile work environment claims. . . .

The acts and events at issue are discrete acts and events which constitute instances in which

defendant failed to promote plaintiff.”). Therefore, while Lara’s allegations—in particular, his

allegations regarding his termination—are sufficient to state claims based upon discrete acts of

discrimination and retaliation, they cannot, without more, provide the basis for a claim of hostile

work environment.

For the above reasons, Lara has failed to state a claim of hostile work environment under

§ 1981 or Title VII, and these claims are therefore dismissed.27

D. Liability of Defendants beyond Sam Adams

Having found that Lara has successfully stated claims of race-based discrimination and

retaliation in violation of § 1981, Title VII, and the PHRA, the Court must next address which of

the Defendants beyond Sam Adams, if any, may be liable for these claims.28

With respect to HTTS, the staffing agency that placed Lara with Sam Adams, the relevant

inquiry is whether Lara’s allegations are sufficient to plausibly infer an employee-employer

relationship such that HTTS may be held liable as Lara’s “employer.” In the context of

employment discrimination claims, “the common-law test” of agency as outlined in Nationwide

27 Because Lara has failed to state a claim, the issue of whether he has plausibly alleged

respondeat superior liability is moot. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167

(3d Cir. 2013) (explaining that “[t]he first four elements [of the claim] establish a hostile work

environment, and the fifth element [respondeat superior liability] determines employer

liability”). However, even assuming Lara’s allegations adequately stated a hostile work

environment claim, it is questionable whether these allegations would sufficiently allege

respondeat superior liability. In particular, the derogatory comment at the heart of Lara’s suit—

“I am tired of HTSS hiring all these blacks and Puerto Ricans”—was made by Lara’s coworker

rather than a supervisor.

28 As noted previously, the Court finds that for the purposes of Defendants’ motion, based

upon the facts alleged, Lara has adequately pleaded an employee-employer relationship with

Sam Adams. See footnote 19, supra.

Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) governs the issue. Faush v. Tuesday Morning,

Inc., 808 F.3d 208, 213 (3d Cir. 2015). Under this test, a court is to consider the following non-

exhaustive factors:

the skill required; the source of the instrumentalities and tools; the location of the

work; the duration of the relationship between the parties; whether the hiring party

has the right to assign additional projects to the hired party; the extent of the hired

party’s discretion over when and how long to work; the method of payment; the

hired party’s role in hiring and paying assistants; whether the work is part of the

regular business of the hiring party; whether the hiring party is in business; the

provision of employee benefits; and the tax treatment of the hired party.

Id. at 214 (quoting Darden, 503 U.S. at 323). Importantly, “[u]nder this inquiry, ‘two entities

may be “co-employers” or “joint employers” for purposes of Title VII’ where both

employee/employer relationships satisfy the relevant factors.” Rippy v. Philadelphia Dep't of

Pub. Health, No. CV 19-1839, 2019 WL 4849439, at *4 (E.D. Pa. Sept. 30, 2019) (quoting

Faush, 808 F.3d at 214).

Applying the above test to Lara’s allegations, the Court observes the following. Beyond

(1) the fact that he was placed at Sam Adams by HTTS and (2) the conclusory assertion that Sam

Adams and HTTS were his “joint and sole employer,” Am. Compl. ¶ 29, the only substantive

averment Lara makes with respect to HTTS is his claim that he “was hired by and received a

paycheck from HTSS, Inc., however, the day to day assignments and job responsibilities Plaintiff

carried out were controlled by Samuel Adams,” id. ¶ 31. These allegations are thin indeed.

What is more, none of the alleged conduct supporting Lara’s discrimination and retaliation

claims in any way implicates any agent or employee of HTTS; to the contrary, Lara’s grievances

concern the conduct of Sam Adams employees exclusively. And yet, for several reasons, at this

stage of the litigation the Court declines to find that HTTS was not Lara’s “employer” under the

applicable legal standard.

First, Lara does allege that he was paid by HTTS, a significant factor in itself. See

Prather v. Prudential Fox & Roach, 326 F. App’x 670, 672 (3d Cir. 2009). Second, it is likely

that discovery will produce evidence capable of supporting a claim of an employee-employer

relationship between Lara and HTTS. Additionally, giving him the benefit of the doubt, the

Court assumes that it was not Lara’s intention to plead his case in a manner that would foreclose

liability against HTTS. In the Court’s view then, the ultimate determination of whether HTTS

and/or Sam Adams is properly considered Lara’s “employer” under the common law of agency

is better addressed on summary judgment or at trial after discovery has taken place. See, e.g.,

Shah v. Bank of Am., 598 F. Supp. 2d 596, 600 (D. Del. 2009), aff'd, 346 F. App’x 831 (3d Cir.

2009); Yue Yu v. McGrath, 597 F. App’x 62 (3d Cir. 2014). Accordingly, the Court finds that

Lara has adequately pleaded his claims of race-based discrimination and retaliation against

HTTS in addition to Sam Adams.

The Court next turns to the seven individual Defendants—Kevin Moyer, Edwin (last

name unknown), Quincy Troupe, Derrick (last name unknown), Bill (last name unknown),

Alison Glen, and Lewis Mars—and the issue of whether they may be held liable for Lara’s

claims of race-based discrimination and retaliation under § 1981, Title VII, and the PHRA.

The answer with respect to Lara’s Title VII claims is clearly no. “Congress did not

intend to hold individual employees liable under Title VII.” Sheridan v. E.I. DuPont de

Nemours and Co.,100 F.3d 1061, 1078 (3d Cir. 1996). “As a result, the individually-named

[D]efendants cannot be held liable for violations of Title VII.” Hamilton v. Genesis Healthcare

Corp., No. CV 17-4777, 2018 WL 741724, at *4 (E.D. Pa. Feb. 7, 2018). Lara’s Title VII

discrimination and retaliation claims against these individuals are therefore dismissed.

As for Lara’s § 1981 claims, the Third Circuit “has found individual liability under §

1981 ‘when [the defendants] intentionally cause an infringement of rights protected by Section

1981, regardless of whether the [employer] may also be held liable.’” Shaw v. Temple Univ.,

357 F. Supp. 3d 461, 474 (E.D. Pa. 2019) (quoting Cardenas v. Massey, 269 F.3d 251, 268 (3d

Cir. 2001)).

Under this standard, Lara has failed to adequately plead facts that would implicate

liability for any of the seven individual Defendants. Even liberally construing the Amended

Complaint with respect to these Defendants, the allegations describe (1) a limited number of

workplace interactions with which Lara was offended, and (2) a general failure of the individuals

to whom he reported perceived discrimination to take action he thought appropriate and within a

time frame he desired. In the Court’s view, the heart of Lara’s suit deals with what he alleges to

be his discriminatory and retaliatory termination. There are insufficient allegations to tie this

action—his termination—to any unlawful conduct on behalf of the individual Defendants.

While Lara’s allegations may be (and are) sufficient to state claims of race-based discrimination

and retaliation against his employer(s), they are insufficient to subject any of the seven

individuals to liability under § 1981. Lara’s claims under § 1981 against the individual

Defendants are therefore dismissed.

Finally, the Court turns to whether Lara has adequately pleaded facts that support

individual liability for his claims under the PHRA. “The PHRA allows individual supervisors to

be held liable for aiding and abetting an employer’s violation of the PHRA under 43 P.S. §

955(e). Dici v. Pennsylvania, 91 F.3d 542, 552–53 (3d Cir.1996). Furthermore, a supervisory

employee may also be found liable for direct acts of discrimination under § 955(e) if the

supervisor shared the intent and purpose of his employer.” Merces-Clark v. Pennsylvania, No.

CIV.A. 13-02111, 2013 WL 6096324, at *3 (E.D. Pa. Nov. 19, 2013) (citing Santai v. Fred

Beans Ford, Inc., No. 10–2367, 2011 WL 3606836, *2-4 (E.D. Pa. Aug.16, 2011), Bernhard v.

Brown & Brown of Lehigh Valley, Inc., 720 F. Supp. 2d 694, 705–06 (E.D.Pa.2008), Davis v.

Levy, Angstreich, Finney, Baldante, Rubenstein & Coren, P.C., 20 F. Supp. 2d 885, 887 (E.D.

Pa.1998), and Glickstein v. Neshami ny School District, Civ. A. No. 96–6236, 1997 WL 660636,

*11-13 (E.D. Pa. Oct.22, 1997)).

For the same reasons that Lara fails to adequately plead individual liability under § 1981,

the Court finds that he has failed to allege facts showing that any of the seven individual

Defendants were responsible for either direct acts of discrimination or for aiding and abetting

Sam Adams’ alleged discriminatory conduct under the PHRA. The factual averments with

respect to the individual Defendants are insufficient to plausibly support an inference of

individual responsibility for unlawful discrimination or retaliation. Lara’s PHRA claims of race-

based discrimination and retaliation against the individual Defendants are therefore dismissed.

V. CONCLUSION

For the reasons discussed herein, Defendants’ motion to dismiss the Amended Complaint

is granted, in part, and denied in part. The motion is granted as to Lara’s hostile work

environment claims against all Defendants. The motion is also granted as to Lara’s race-based

discrimination and retaliation claims against the seven individual Defendants. The motion is

denied as to his race-based discrimination and retaliation claims against Sam Adams and HTTS.

A separate Order follows this Opinion.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.________

JOSEPH F. LEESON, JR.

United States District Judge