LIGGINS-MCCOY v. WILLIAMS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

:

RONDABAY LIGGINS-McCOY,

:

: CIVIL ACTION

Plaintiff, :

v. : NO. 19-1639

:

DEMOCRATIC CAUCUS OF THE :

SENATE OF PENNSYLVANIA, et al., :

:

Defendants. :

:

ORDER

AND NOW, this __1st__ day of July 2021, upon consideration of Defendant Anthony H.

Williams’ Motion to Dismiss for Lack of Jurisdiction (ECF 21), Plaintiff’s Response in

Opposition (ECF 23), and the associated motions for replies (ECFs 24 and 26), IT IS HEREBY

ORDERED AND DECREED that:

1. Defendant’s Motion is GRANTED as to count III of Plaintiff’s Amended

Complaint.i The claim is DISMISSED WITHOUT PREJUDICE with leave to

amend. Plaintiff has 30 days from the date of this order to submit an amended

complaint.

2. Both reply Motions (ECFs 24 and 26) are DENIED AS MOOT.

BY THE COURT:

/s/ Petrese B. Tucker

____________________________

Hon. Petrese B. Tucker, U.S.D.J.

i Before the court are Defendant Anthony H. Williams’ Motion to Dismiss (ECF 21), and

Plaintiff Rondabay Liggins-McCoy’s Response in Opposition (ECF 23). While Plaintiff’s

Pennsylvania Human Relations Act (PHRA) age discrimination claim was made after the

appropriate exhaustion of administrative remedies, that claim needs to be pled with more

specificity as to Defendant Williams. For this reason, the Motion to Dismiss is granted with

leave to amend the Complaint.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Rondabay Liggins-McCoy is a former constituent services representative in the

legislative office of Anthony H. Williams, State Senate representative (“Senator Williams”) for

District 8, which covers portions of Philadelphia and Delaware counties. Liggins-McCoy filed

the first iteration of this lawsuit alleging employment discrimination against the Democratic

Caucus of the Senate of Pennsylvania (“PA Senate Democrats”) and Senator Williams on April

16, 2019. Compl. (ECF 1). That complaint alleged one count of disability discrimination in

violation of the Rehabilitation Act (29 U.S.C. § 791 et seq.) against the PA Senate Democrats,

and one count of violating the Family and Medical Leave Act (FMLA) (29 U.S.C. § 2601 et

seq.) against Senator Williams individually. Id. Liggins-McCoy claims that she was fired for

taking time off protected under the FMLA for breast cancer treatment. Compl. ¶¶ 11-19.

The motions now before this court stem from the Amended Complaint filed on March 6,

2020. Am. Compl. (ECF 18). The new Complaint added a third allegation that Senator Williams

aided and abetted age discrimination, in violation of the Pennsylvania Human Relations Act

(PHRA) (43 P.S. § 951 et seq.). It alleges that Plaintiff’s firing was the result of age

discrimination as well as a refusal to accommodate protected leave requests.

II. STANDARD OF REVIEW

Rule 12(b)(1) allows the court to dismiss a complaint for lack of subject matter

jurisdiction. A 12(b)(1) motion may use a facial attack, challenging jurisdiction based on the face

of the complaint, or use a factual attack bringing in external information. See Gould Elecs. Inc. v.

United States, 220 F.3d 169, 176 (3d Cir. 2000). A facial attack contests the sufficiency of the

pleadings and the court must view the factual allegations of the complaint in the light most

favorable to plaintiff. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). A

factual attack, on the other hand, concerns “the actual failure of [a plaintiff’s] claims to comport

[factually] with the jurisdictional prerequisites.” U.S. ex rel. Atkinson v. Pa. Shipbuilding Co.,

473 F.3d 506, 514 (3d Cir. 2007). In a factual attack, a district court may weigh and “consider

evidence outside the pleadings.” Gould Elecs. Inc., 220 F.3d at 176. A factual attack places the

burden of proof on the plaintiff to show “that jurisdiction does in fact exist;” therefore, “no

presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material

facts will not preclude the trial court from evaluating for itself the merits of jurisdictional

claims.” Mortensen, 549 F.2d at 891.

Rule 12(b)(6) governs dismissal of a complaint for failing to state a claim upon which

relief can be granted. When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the Court must “accept all factual allegations as true [and] construe the

complaint in the light most favorable to the plaintiff.” Argueta v. US. Immigration & Customs

Enf’t, 643 F.3d 60, 74 (3d Cir. 2011). However, the Court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft,

556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Ultimately, “[a]

court may dismiss a complaint for failure to state a cause of action only if it is clear that no relief

could be granted under any set of facts that could be proved consistent with the allegations.”

Gupta v. Albright Coll., No. 05-1921, 2006 WL 162977, at *1 (E.D. Pa. Jan. 19, 2006) (citing

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)).

III. ANALYSIS

A. Administrative Remedies Were Exhausted on the PHRA Claim

Plaintiff has exhausted her administrative remedies on the PHRA claim, starting with the

proper filing of a charge with the Pennsylvania Human Relations Commission (PHRC). While

Defendant contends that problems with the handling of the claim by the PHRC mean

administrative remedies went unexhausted and this court lacks jurisdiction, these arguments

ignore both Plaintiff’s own actions to preserve her rights and well-established doctrines in the

Third Circuit that allow for the curing of the issues Defendant identifies.

1. Plaintiff Filed a Timely Charge of Age Discrimination

Defendant argues that Plaintiff has failed to exhaust her administrative remedies.

However, Plaintiff filed an age discrimination charge with the PHRC on April 19, 2019—within

180 days of the alleged discriminatory act, December 5, 2018. See Pl.’s Opp’n Mot. Dismiss Ex.

1. This submission means that she complied with the provisions of the relevant statute. See 43

P.S. § 959(h).

2. The Post-Filing Actions of the PHRC Are Not Held Against Plaintiff

Defendant’s motion to dismiss is premised not on the failure to file a charge with the

PHRC in the appropriate amount of time, but on what happened afterwards. According to a

November 26, 2019 letter from the agency, Plaintiff’s charge was not accepted for filing with the

PHRC because it was potentially outside of the agency’s jurisdiction, due to the “separation of

powers doctrine”. Pl.’s Opp’n Mot. Dismiss Ex. 2. The letter noted that a failure to file a

complaint would preclude a suit under the PHRA in court. Id. However, Defendant’s motion

then diverges from the facts. Contrary to the contention that Plaintiff did not react to this letter,

Plaintiff’s attorney did respond to the PHRA’s letter on December 20, 2019. Pl.’s Opp’n Mot.

Dismiss Ex. 3. The letter explicitly states that Plaintiff “unequivocally request[s] that her charge

be further submitted and considered on its merits,” and that she would cooperate with any

administrative investigation. Id. Plaintiff heeded the warning of the agency, but it is not clear

what happened afterwards. Pl.’s Opp’n Mot. Dismiss 7.

Given the proper filing of a charge with the PHRC, and Plaintiff’s prompt response to the

agency’s letter, Plaintiff did her part with regards to an attempt to exhaust administrative

remedies. In Hicks v. ABT Associates, Inc., the Third Circuit ruled that a plaintiff’s attempts to

amend a discrimination charge filed with the EEOC did not impede the ability to file a civil

action if the failure of that amendment was the result of the agency’s own actions. See 572 F.2d

960, 964–65 (3d Cir. 1978) (“The failure of the EEOC to accept the amendment [is] . . . . the

result of the failure of the agency to follow the statute and its own regulations. The individual

employee should not be penalized by the improper conduct of the Commission.”) The court

rested its reasoning on the idea that the “statutory policy” of a charge-filing provision is fulfilled

once a plaintiff makes good faith efforts to comply, and the mistake of the agency in fulfilling its

duties once the plaintiff complies should not be held against the claimant. Id.

This principle can be applied directly to charges filed to the PHRC as well. Smith v.

Video Monitoring Servs. of Am., L.P., No. CIV.A.98-4939, 2000 WL 1521606 (E.D. Pa. Oct. 3,

2000). In Smith, the plaintiff informed the PHRC of a sexual harassment allegation that the

agency initially excluded from its formal charge. Even after efforts to have the charge amended,

including plaintiff’s attorney sending a detailed letter and a new complaint being drafted at the

agency’s office, the PHRC failed to formalize the amended complaint and act on it, likely due to

administrative error. This did not stop the court in Smith from finding that the plaintiff had

fulfilled the charge filing requirements of the relevant statute. Id. at *4.

A finding that Plaintiff fulfilled the PHRA’s charge filing requirements is consistent with

settled precedent in the Third Circuit that the charge-filing provisions of antidiscrimination

statutes are to be liberally construed. See Rabzak v. Berks Cty., 815 F.2d 17, 20 (3d Cir. 1987)

(“[Such a] principle rests upon the premise that an anti-discrimination statute . . . is humanitarian

legislation which should be liberally interpreted to effectuate the congressional purpose of

ending discrimination and that Congress envisioned that charges would mostly be filed by

laymen unassisted by lawyers.”)

Plaintiff met the charge-filing requirements of the PHRA in filing her claim for age

discrimination.

3. PHRC Jurisdictional Issues Can Be Cured Under Settled Third Circuit Doctrine

Defendant also argues that because the PHRC never formally resolved the charge

Plaintiff submitted, the PHRC retains jurisdiction over the age discrimination claim, exclusive of

this Court under the PHRA statute. See 43 Pa. Stat. Ann. § 962(c); Burgh v. Borough Council of

Borough of Montrose, 251 F.3d 465, 471 (3d Cir. 2001) (“The PHRA similarly requires that

claims be brought first to . . . the PHRC, which has exclusive jurisdiction over the claim for a

period of one year”) (citing Clay v. Advanced Computer Applications, Inc., 522 Pa. 86 (1989).

However, when a plaintiff files a lawsuit before the PHRC mandatory one-year period expires, a

district court has the discretion to allow for amendment of the complaint to include the PHRA

claim. Rosetsky v. Nat’l Bd. of Med. Examiners of U.S., Inc., 350 F. App’x 698, 703 n.3 (3d Cir.

2009). When the PHRC one-year period has elapsed by the time the court rules, as it has here,

courts in this district have seen fit to deny a motion to dismiss on the PHRA claim without

requiring an amended complaint. See Szurgyjlo v. Sourceone Pharmacy Servs., LLC, No. CV 20-

4304, 2020 WL 7249095, at *3 (E.D. Pa. Dec. 9, 2020) (explaining that the requirement to file

an amended complaint is generally applied when the PHRC period has not yet elapsed). The

PHRA period on Plaintiff’s claim would have expired on April 19, 2020, over a year ago. Pl.’s

Opp’n Mot. Dismiss 8 n.5. Plaintiff’s PHRC claim is properly within this Court’s jurisdiction.

B. There is No Eleventh Amendment Immunity for Claims Against Individuals

Plaintiff’s age discrimination claim against Senator Williams is also not barred by the

Eleventh Amendment. Defendant argues that the Eleventh Amendment of the United States

Constitution acts as a bar against liability for Senator Williams, as the PHRA only waives the

Commonwealth’s immunity from suit in state, not federal court. Nelson v. Com. of Pennsylvania

Dep’t of Pub. Welfare, 244 F. Supp. 2d 382, 391 (E.D. Pa. 2002). However, Eleventh

Amendment immunity does not apply under the PHRA to claims made against individual

persons in their individual capacities, as opposed to Commonwealth agencies. See Merces-Clark

v. Pennsylvania, No. CIV.A. 13-02111, 2013 WL 6096324, at *3 (E.D. Pa. Nov. 19, 2013) (“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).”) (citations omitted); Dennison v. Pennsylvania

Dep’t of Corr., 268 F. Supp. 2d 387, 404-405 (M.D. Pa. 2003) (“the Eleventh Amendment is

applicable only to the states and their agencies, not individual state employees sued in their

personal capacities.”). As Plaintiff has made a claim against an individual in their personal

capacity under the PHRA, Eleventh Amendment immunity does not enter the picture.

C. Plaintiff Has Not Pled a Plausible Age Discrimination Claim

Plaintiff, however, has failed to meet the Rule 12(b)(6) standard for substantively

pleading that Senator Williams aided and abetted age discrimination. Senator Williams argues

that Plaintiff’s age discrimination claim should be dismissed because she failed to plead facts

that would plausibly establish that Defendant engaged in that conduct. Defendant contends that

under section 955(e) aiding and abetting liability, a plaintiff needs to allege that a supervisor

“knew or should have known that the plaintiff was being subjected to harassment but repeatedly

refused to take action to end the harassment.” Rosh v. Gold Standard Café at Penn, Inc., No. CV

16-1676, 2016 WL 7375014, at *7 (E.D. Pa. Dec. 19, 2016) (internal quotations omitted)

(quoting Dici v. Commonwealth of Pa., 91 F.3d 542, 553 (3d Cir. 1996)).

Plaintiff has alleged facts that satisfy an underlying prima facie age discrimination claim.

Plaintiff in her complaint pled that she was (1) over 40 (59) at the time the adverse employment

was taken; (2) that an adverse employment action was taken (she was fired); (3) that she was

qualified for her position (her performance and qualifications had not been called into question);

and (4) that she was replaced with someone young enough to support an inference of

discriminatory animus (she was replaced with an employee half her age). Compare Smith v. City

of Allentown, 589 F.3d 684, 689 (3d Cir. 2009) (explaining the elements of an age discrimination

claim) and Pl.’s Opp’n Mot. Dismiss 11.

However, the problem is that Plaintiff has not done enough to allege that Senator

Williams, specifically was involved with or aware of the acts of age discrimination. Plaintiff only

states that “As Plaintiff’s ultimate supervisor, Senator Williams aided and abetted the decision to

discharge from her employment on account of her age.” Pl.’s Am. Compl. ¶ 38. This does not

meet the standard of 955(e) liability. In Barthold v. Briarleaf Nursing & Convalescent Center

Nursing Home, a plaintiff alleged a 955(e) aiding and abetting claim against their supervisor,

without alleging a corresponding 955(a) violation by an employer. The court dismissed the

claim, noting that the plaintiff had simply stated in a paragraph of the complaint that “at all times

material hereto, [defendant] aided and abetted the aforementioned harassment, hostile work

environment, and discrimination to which [plaintiff] was subjected.” Barthold v. Briarleaf

Nursing & Convalescent Center Nursing Home, 2014 WL 2921534, *7-8 (E.D. Pa. June 27,

2014). The Barthold court characterized this line as a conclusory paragraph simply citing an

element of supervisory liability under section 955(e). This line is strikingly similar to the

language Plaintiff uses in her Amended Complaint. For this reason, a PHRA claim was not

sufficiently pled.

However, Plaintiff does have the opportunity to amend her complaint to address this

shortcoming. A district court is obligated to permit a curative amendment “unless an amendment

would be inequitable or futile.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008).

Plaintiff in her response to this Motion to Dismiss has stated that a subsequent amended

Complaint would detail Williams’ authority over his staff, the exercise of that authority over

Plaintiff, and include emails detailing awareness and approval of the “job elimination” plan. Pl.’s

Opp’n Mot. Dismiss 11 n.6. These new elements, if appropriately pled, would satisfy an age

discrimination claim with regards to Senator Williams.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion is GRANTED. Plaintiff has 30 days from

the date of this order to file an amended complaint curing the pleading issues with Count III.