CURRY v. DEVEREUX FOUNDATION

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EUNICE ELAINE CURRY :

:

v. : CIVIL ACTION NO. 21-18

:

DEVEREUX FOUNDATION :

McHUGH, J. May 24, 2021

MEMORANDUM

This is an action under 42 U.S.C. § 1981 claiming race discrimination and retaliation,

brought by a longtime employee twice passed over for promotion. At the core of the case is the

alleged use of a racial stereotype—the “angry Black woman”—and the significance it should carry

in weighing whether conduct was racially motivated and whether the plaintiff has stated a claim

of retaliation. In considering this issue, the destructive power of this particular label is significant,

in part due to the degree in which it can inhibit Black women from asserting their rights. That

point is underscored by this case, where the defense argues in part that the retaliation claim fails

because Plaintiff’s response to the racial discrimination alleged was not sufficiently oppositional.

In the related context of gender-based discrimination, the Supreme Court has decried the

“intolerable and impermissible catch-22,” which puts women “out of a job if they behave

aggressively and out of a job if they do not.” Price Waterhouse v. Hopkins, 490 U.S. 228, 251

(1989). Their reasoning applies with equal force here. Further development of the record is

warranted, with the result that Defendant’s motion to dismiss will be denied.

I. Factual Allegations

Plaintiff Eunice Elaine Curry, a Black woman, worked as a program supervisor in

Defendant Devereux Foundation’s Brook Program for thirteen years. See Compl. ¶¶ 7, 17, ECF

No. 1. In early February 2020, Defendant’s Assistant Executive Director, Daniel Eichelberger,

announced that Devereux had openings for one Campus Administrator position, one Program

Director position, and three Program Manager positions. Id. ¶ 8. Plaintiff applied for the open

Program Director and Program Manager roles. Id. ¶ 9. She was interviewed for the Program

Director post on February 14, 2020. Id. ¶ 10.

On March 2, 2020, while Ms. Curry awaited the results of her application for the Program

Director position, Defendant announced that Byron Lee, a White man, had been promoted to

Campus Administrator. Id. ¶ 11. Eight days later, Defendant informed Ms. Curry that she had not

been selected as Program Director, and Plaintiff reiterated her interest in the Program Manager

role, which remained unfilled. Id. ¶ 12. This specific position was designed to serve the Brook

Program, where Ms. Curry had worked for 13 years. Id. ¶¶ 9, 17.

Following her rejection from the Program Director role, Plaintiff sought professional

advice and feedback on her performance as an employee from Mr. Eichelberger, a White man, on

March 25, 2020. See id. ¶¶ 8, 13. During the hour-long meeting, Curry and Eichelberger discussed

the difficulties Ms. Curry was experiencing in working with her new supervisor, Byron Lee. Id ¶

13. As Plaintiff was leaving the meeting, Eichelberger commented that “People are afraid of the

angry Black woman.” Id. Ms. Curry replied, “I am not an angry Black woman.” Id. Eichelberger

responded, “but you have been angry.” Id. ¶ 13. Plaintiff viewed this statement as “racially

offensive and derogatory.” Id. ¶ 19.

On April 27, 2020, Ms. Curry participated in a telephone interview for the Program

Manager position with Byron Lee and Brian Wood. Id. ¶ 15. On May 7, 2020, Mr. Lee informed

Plaintiff that she had not been selected for the position, which was one of three such roles

advertised by Defendant. Id. ¶ 17. Defendant had previously hired a White woman for one of the

three Program Manager positions. Id. ¶ 14. Plaintiff sought a meeting with Lee to discuss why

she had not been promoted despite having worked for the Brook Program for thirteen years. Id. ¶

19. She reports that, during a May 21, 2020 meeting, Lee was “evasive” and “failed to provide

any direct feedback.” Id. At one point ,Mr. Lee purportedly stated, “I do not know if there is an

answer.” Id.

During this meeting, Curry also told Lee about the “angry Black woman” comment that

Eichelberger had made during their March 25th meeting. Id. Plaintiff requested a subsequent

conversation with Lee regarding Eichelberger’s statement, and the pair met on June 9, 2020. Id.

¶¶ 20–21. Around two weeks later, Defendant’s Human Resources Department contacted Ms.

Curry regarding the statement. Id. ¶ 22. Plaintiff proceeded to file complaints regarding

Eichelberger’s comment and met with Human Resources three times in July. Id. ¶¶ 23–25. She

claims that “no resolution of her complaints was reached.” Id. ¶ 25.

Finally, in September 2020, Ms. Curry met once more with Human Resources and

observed that she still lacked an explanation for why she had been denied the Program Director

and the Program Manager jobs. Id. ¶ 26. Patrick Girdner, the Director of Human Resources, stated

that he was part of the interview panel and had received feedback that Ms. Curry was “conflictual”

and “something about teamwork.” Id. Plaintiff claims that the only explanation that Defendant

has offered to date for failing to promote her was Lee’s note that “we were looking for a cohesive

team.” Id. ¶ 27.

This suit followed. Defendant has moved to dismiss several of Plaintiff’s claims, but the

sole issue that remains unresolved is Plaintiff’s claim for retaliation.1 See Def.’s Mot. Dismiss,

ECF No. 7.

1 Defendant has not challenged Plaintiff’s disparate treatment claim under § 1981. It moves to dismiss

what it perceives to be a claim for harassment in the workplace, but Ms. Curry subsequently clarified that

she is not pursuing a hostile work environment claim. ECF 10, p. 1. Plaintiff has withdrawn her claim

for intentional infliction of emotional distress. Id., p. 2, n.2.

II. Standard of Review

Within the Third Circuit, motions to dismiss under Fed. R. Civ. P. 12(b)(6) are governed

by the well-established standard set forth in Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d

Cir. 2009).

III. Discussion

The Supreme Court has established that § 1981 protects individuals against retaliation. See

CBOCS West, Inc. v. Humphries, 553 U.S. 442, 451 (2008). To maintain a retaliation claim under

§ 1981, Plaintiff must show that “(1) [s]he engaged in protected activity, (2) [her] employer took

an adverse action against h[er], and (3) there was a causal connection between [her] participation

in the protected activity and the adverse employment action.” Estate of Oliva ex rel. McHugh v.

New Jersey, 604 F.3d 788, 798 (3d Cir. 2010). The elements of a § 1981 employment

discrimination claim are identical to those brought under Title VII. See Schurr v. Resorts Int’l

Hotel, Inc., 196 F.3d 486, 499 (3d Cir. 1999).

Plaintiff broadly contends that Defendant Devereux Foundation engaged in unlawful

retaliation when it refused to promote her to two separate positions: Program Director and Program

Manager. See Compl. ¶¶ 29, 35. I will grant Defendant’s motion with respect to the Program

Director role, because Ms. Curry fails to plead facts indicating that she engaged in any protected

activity before being notified she had not been selected for that position. As to Plaintiff’s claim

of retaliation arising out of her protest after she did not secure the Program Manager role, she has

adequately alleged that she objected to Eichelberger’s usage of a racial stereotype. Furthermore,

his involvement in the hiring and promotion process is unknown at this point. I will therefore deny

Defendant’s motion in part for the following reasons.

A. The Requirement of Adverse Action

Defendant’s refusal to promote Ms. Curry constitutes an adverse employment action. The

relevant inquiry is whether the alleged action “well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.” Burlington N. & Sante Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006); Estate of Olivia ex rel. McHugh. 604 F.3d at 798 (applying Title

VII standard to § 1981 case). When an individual is denied promotion, they are deprived of

additional income and may also experience the anxiety that accompanies professional stagnation.

Ms. Curry claims that she experienced significant financial losses and plausibly alleges emotional

distress, having been passed over for promotion in the program where she had worked for thirteen

years. See Compl. ¶¶ 19, 39. It is not difficult to conceive how the prospect of a diminished

professional future would dissuade a worker from complaining about discrimination, and several

courts within the Third Circuit have held that denials of promotion can comprise adverse actions.

See Hightower v. Eastern Area Sch. Dist., 818 F. Supp. 2d 860, 886 (E.D. Pa. 2011) (addressing

repeated failures to promote as adverse action); Kocher v. Municipality of Kingston, 400 F. Supp.

3d 138, 153 (M.D. Pa. 2019) (finding that failing to promote plaintiff to detective is an adverse

employment action); Rodriguez v. Torres, 60 F. Supp. 2d 334, 352 (D.N.J. 1999) (permitting

plaintiff to proceed on retaliatory failure-to-promote claim).

B. The Requirement of Protected Activity

Ms. Curry must also demonstrate that she engaged in protected activity. See Estate of Oliva

ex rel. McHugh, 604 F.3d at 798 (requiring protected activity, adverse action, and causation in

retaliation cases). Her complaint raises two possible instances of oppositional conduct: 1) her

March 25, 2020 refusal to assent to Eichelberger’s comment that “People are afraid of the angry

Black woman,” Compl. ¶ 13, and 2) her May 21, 2020 report to Lee regarding the “racially

offensive and derogatory statement.” Id. ¶ 19.2 As noted above, there was no protected activity

alleged before Plaintiff was denied the Program Director role on March 20, 2020. And as to the

Program Manager job, only Plaintiff’s March 25th protest against the use of a racial stereotype is

relevant, as her May complaint to Lee occurred after she was rejected for the position.

In cases brought under Title VII, the Third Circuit has held that “a plaintiff establishes a

retaliation claim if she shows that she had a reasonable belief that her employer was engaged in an

unlawful employment practice and that the employer retaliated against her for protesting against

that practice.” Drinkwater v. Union Carbide Corp., 904 F.2d 853, 865 (3d Cir. 1990). It appears

to follow the same standard in § 1981 cases. See Castleberry v. STI Group, 863 F.3d 259, 267 (3d

Cir. 2017) (stating that the plaintiff “must have acted under a good faith, reasonable belief that a

violation existed” under § 1981) (internal citations omitted). The question is whether Ms. Curry

was lodging a protest against what she reasonably believed was discriminatory behavior.

Although the issue is in some ways a close one, I find that Ms. Curry’s conduct suffices as

protected activity, as it is plausible that she reasonably believed Defendant was engaging in

disparate treatment and she explicitly challenged the application of a racial stereotype.

2 In Plaintiff’s response in opposition to Defendant’s motion to dismiss, she claims, for the first time, that

“shortly after the March 25, 2020 meeting and prior to May 7, 2020, Ms. Curry complained to Cory

McLaurin, a Program Supervisor, about the racially derogatory statement made by Mr. Eichelberger.”

Pl’s. Resp. Opp'n 3, ECF No. 10. “[I]t is axiomatic that the complaint may not be amended by the briefs

in opposition to a motion to dismiss.” Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173,

181 (3d Cir. 1988) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984)).

For this reason, I will not consider this additional allegation in evaluating Defendant’s motion. Should

Plaintiff seek to add this contention to her Complaint, she must seek leave to amend under Fed. R. Civ. P.

15(a)(2).

1. Plaintiff Reasonably Believed Defendant Violated § 1981

Defendant argues that Plaintiff could not reasonably believe that Eichelberger’s statement

“People are afraid of the angry Black woman” constituted a discriminatory employment practice.

Def.’s Reply 3, ECF No. 11. But it crafts its argument under the standard for establishing a hostile

work environment, arguing that a single comment could not be reasonably viewed as “severe or

pervasive.” Castleberry, 863 F.3d at 267. If Plaintiff were proceeding under such a theory, this

argument would carry weight. But Defendant misses the point.

Plaintiff has clarified that her claim is not based on the existence of a hostile work

environment but is instead rooted in the theory that racial stereotypes—namely, the “angry Black

woman” trope—unlawfully played a part in Defendant’s promotion and hiring decisions. Other

district courts have addressed the perniciousness of this stereotype. In Young v. Control Solutions,

LLC, No. 15-cv-3162, 2017 WL 2633679, at *4 (N.D Ill. Jun. 19, 2017), the court observed:

Angry and its synonyms are, standing alone, innocent words with no racial connotation.

They are words, however, with a long history as part of a stereotypical depiction of black

women that can trace its roots to the institution of slavery. Although the parties offer limited

evidence on this point, there appears to be an academic consensus regarding both the

resilience of this stereotype within American society and its continued detrimental impact

upon black women. When a word or concept is so pervasively and enduringly linked to a

derogatory stereotype, its use to reference individuals traditionally subject to the stereotype

inherently raises the specter of motivation or bias.

Similarly, in Heard v. Board of Trustees of Jackson Community College, No. 11–13051,

2013 WL 142115, at *12 (E.D. Mich. Jan. 11, 2013), the court quoted the following description

offered by cultural historians:

[T]he Angry Black Woman (ABW) popularized in the cinema and on television … is tart-

tongued and emasculating, one hand on a hip and the other pointing and jabbing (or arms

akimbo), violently and rhythmically rocking her head .... She is a shrill nagger with

irrational states of anger and indignation and is often mean-spirited and abusive ... [S]he

has venom for anyone who insults or disrespects her.3

3 Ferris State University, Jim Crow Museum of Racist Memorabilia (2012),

https://www.ferris.edu/HTMLS/news/jimcrow/antiblack/sapphire.htm.

This caricature can conceivably affect conduct: when Black women engage in assertive or

forceful behavior, their conduct is tagged as threatening or deviant, even when it would be tolerated

in an employee of a different gender or race. Out of a desire to avoid this stereotype, Black women

may adopt a passive attitude that impairs their chances for advancement or renders them unable to

object to discrimination. In this respect, Black women experience the same “intolerable and

impermissible catch-22” described by the Supreme Court in Price Waterhouse v. Hopkins: “out of

a job if they behave aggressively and out of a job if they do not.” 490 U.S. at 251. For this reason,

courts have held that the invocation of the “Angry Black Woman” stereotype may serve as

evidence of discriminatory animus. See, e.g., Robinson v. City of Atlanta, No. 10-2036, 2010 WL

11440788, at *7 (N.D. Ga. Dec. 21, 2010) (holding that “angry black woman” comments support

a claim for discriminatory discharge based on race and sex).

The more difficult question is whether Eichelberger’s alleged use of this term reasonably

suggested that his employer, Devereux Foundation, was engaging in unlawful disparate treatment.

Stereotypical comments, while falling short of actionable harassment, may serve as evidence that

race motivated a particular employment decision. See Price Waterhouse, 490 U.S. at 251. See

also Brown v. J. Katz, Inc., 581 F.3d. 175, 181–183 (3d Cir. 2009) (permitting claim where the

plaintiff alleged that a decision-maker process directed racist statements towards the plaintiff). At

this stage, I must “construe the complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Plaintiff has alleged that Mr.

Eichelberger served as Defendant’s Assistant Executive Director and that he announced the

posting of the open roles on February 3, 2020. See Compl. ¶ 8. Eichelberger purportedly used the

term “angry Black woman” during a professional counseling meeting, implicitly suggesting that

Ms. Curry would need to conform her conduct to racialized expectations to succeed at the

Foundation. Id. ¶ 13. And finally, Mr. Eichelberger is alleged to have said that “People are afraid

of the angry Black woman,” imputing his views to a larger, albeit unknown, group. Id. Plaintiff’s

complaint, therefore, raises questions with respect to Eichelberger’s role in the hiring process and

whether his alleged statement more broadly reflected a culture of discrimination at the

organization. Discovery will be necessary to ascertain whether Plaintiff reasonably believed that

the Devereux Foundation was engaging in unlawful disparate treatment.

2. Plaintiff Engaged in Sufficient Oppositional Conduct

In addition to demonstrating a reasonable belief that discrimination was occurring, Ms.

Curry must also show that she opposed her employer’s discriminatory practice. See Curay–

Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 134 (3d Cir. 2006). Opposition

need not be significant or formal. Rather, the Third Circuit has directed courts to focus on the

“message being conveyed rather than the means of conveyance.” Moore v. City of

Philadelphia, 461 F.3d 331, 343 (3d Cir. 2006). See also Crawford v. Metropolitan Government

of Nashville & Davidson County, 555 U.S. 271, 277 (2009) (observing that the term “opposition”

may be used in reference to “someone who has taken no action at all to advance a position beyond

disclosing it”). However, “opposition to an illegal employment practice must identify the

employer and the practice—if not specifically, at least by context.” Curay, 450 F.3d at 135–136

(signing name to pro-abortion advertisement was not protected activity as one could not reasonably

conclude that the action was taken in response to an employer’s alleged illegal policy or practice);

Barber v. CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir. 1995) (rejecting claim where plaintiff

expressed his dissatisfaction with promotion decisions but did not specifically complain about age

discrimination).

Although this is once again a close issue, I find that Ms. Curry’s rejection of the “angry

Black woman” stereotype sufficiently conveyed her opposition to a discriminatory practice. After

Eichelberger, Defendant’s Assistant Executive Director, purportedly declared that “People are

afraid of the angry Black woman,” Plaintiff then disputed that assessment, stating that “I am not

an angry Black woman.” Compl. ¶ 13. The context in which this conversation took place is

significant, as Eichelberger is alleged to have used this term during a career counseling meeting

where Plaintiff had previously expressed her frustrations with the hiring manager for the open

Program Manager position. Id. ¶¶ 13,15. When the facts are viewed in the light most favorable

to Plaintiff, Ms. Curry objected to the usage of a discriminatory stereotype in evaluating her

qualifications for promotion. This further highlights the unique dilemma faced by Black women

subjected to this trope. Defendant contends that Plaintiff’s protest was legally insufficient, but had

Plaintiff objected more virulently to the comments alleged, describing them as “racist” or

“discriminatory,” she would run the risk of confirming the stereotype she wished to disavow. In

settings such as this, courts must exercise extreme caution at the pleading stage, so as not to impose

unrealistic requirements. I therefore conclude that Plaintiff’s rejection of Eichelberger’s statement

constitutes sufficient oppositional conduct.

C. The Requirement of Causation

Finally, Ms. Curry must also show a causal connection between the protected activity and

adverse action. The Third Circuit has also clarified that plaintiffs bringing retaliation claims have

a lesser burden at the prima facie stage of the case. See Carvalho-Grevious v. Delaware State

University, 851 F.3d 249, 258 (3d Cir. 2017). A plaintiff does not need to prove “but for” causation

at the prima facie stage; rather, the question is whether the plaintiff has “produced evidence from

which a reasonable factfinder could conclude that her engagement in a protected activity was

the likely reason for the adverse employment action.” Id. at 259. Plaintiffs may produce a wide

array of evidence to demonstrate the causal link: an employer’s inconsistent explanation, a pattern

of antagonism, or temporal proximity unusually suggestive of retaliatory motive. Id. at 260.

Alternatively, the evidence may, when taken as a whole, suffice to raise the inference. Id.

Plaintiff has pleaded that she engaged in protected activity but that she was denied the

program manager position one month later. Because Mr. Eichelberger’s role in the hiring process

is unknown, it is unclear whether Ms. Curry’s objection to the “angry Black woman” stereotype

influenced Defendant’s hiring decision. I am also cognizant of the fact that individuals involved

in the selection process received feedback from an unknown source that Plaintiff was “conflictual,”

and that Bryon Lee, Plaintiff’s supervisor, expressed concerns she would not work well as part of

a “cohesive team.” Compl. ¶¶ 26, 27. Additional discovery is necessary to rule out retaliation as

the causal factor for Ms. Curry’s non-selection to the role.

IV. Conclusion

For the reasons set forth above, Defendant’s Motion to Dismiss Plaintiff's Complaint will

be granted in part and denied in part. An appropriate order follows.

/s/ Gerald Austin McHugh

United States District Judge