SUMMERS v. THE CHILDREN'S HOSPITAL OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREA SUMMERS :

:

v. : CIVIL ACTION NO. 21-3479

:

THE CHILDREN’S HOSPITAL OF :

PHILADELPHIA :

McHUGH, J. December 7, 2021

MEMORANDUM

This is an employment action in which Plaintiff alleges she was discriminated and

retaliated against on the basis of her race in violation of 42 U.S.C. § 1981. Defendant moves to

dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The

motion will be granted in part and denied in part.

I. Factual Allegations:

Plaintiff Andrea Summers, an African American woman, worked as a Nursing Assistant in

the Neonatal Intensive Care Unit at Defendant The Children’s Hospital of Philadelphia (“CHOP”)

for over 20 years until her termination on November 17, 2020. Pl.’s Corrected Compl. ¶¶ 3, 6,

ECF 9.1 Plaintiff alleges that this termination was “because of her race and in retaliation for

1 Plaintiff filed a “corrected complaint” (ECF 9) within 21 days of Defendant filing its Motion to

Dismiss (ECF 7). The only change made in the corrected complaint was to remedy a typographical error

in Paragraph 9 of the Complaint to change “Non-White” to “White.” Read in the context of the racial

discrimination claim, the error and true meaning were obvious from the face of the original complaint.

Defendants then filed a Motion to Dismiss the Corrected Complaint (ECF 11), construing it as an amended

complaint under Fed. R. Civ. P. 15(a). Defendant’s Motion to Dismiss the Corrected Complaint does not

raise any new arguments, instead incorporating and relying entirely on the arguments made in its original

Motion to Dismiss, ECF 7-1, and Reply Memorandum to the original Motion to Dismiss, ECF 10. The

Reply Memorandum contains a section titled “Ms. Summers’ Corrected Complaint Does Not Save Her

Discrimination Claim” which addresses the one word edit in the corrected complaint. ECF 10 at 2-3.

In considering this Motion to Dismiss, I construe the corrected complaint as an amended complaint

and use it as the operative complaint. I consider all arguments made by the Defendant in its Motion to

reporting two of her white female supervisors, Holly Sabatino and Tracy Windemere, to CHOP’s

Compliance Department, for inappropriate conduct directed towards her.” Id. ¶ 6. Specifically,

in March and April 2020, Ms. Summers made three reports to the Compliance Department: two

against her Nurse Manager, Ms. Sabatino, for communicating with Plaintiff in a “disrespectful

manner” and falsely accusing Plaintiff of delaying delivery of a patient from one floor to another;

and one against Sabatino’s supervisor, Ms. Windmere, for falsely accusing Plaintiff of taking an

unauthorized work break. Id. ¶¶ 7,8.

Plaintiff argues that a series of discriminatory consequences flowed from her decision to

report her supervisors. Plaintiff alleges that after she made these reports Ms. Sabatino began “to

interact and speak to Ms. Summers in a condescending manner, unlike the way she interacted with

White Nursing Assistants.” Id. ¶ 9. Plaintiff further states that Ms. Sabatino continued to mistreat

Plaintiff and issued her three unjustified Disciplinary Action Reports in October and November

2020 for infractions she did not commit. Id. ¶¶ 10-20. As a result of the first report, Ms. Summers

was suspended from work from October 7 until October 16. Id. ¶ 11. Due to the second report,

Ms. Summers was placed on a Performance Improvement Plan and was required to enter CHOP’s

Employee Assistance Program, attend five sessions of company-sponsored therapy, and meet with

Sabatino every other week. Id. ¶ 15. Following the third disciplinary report, CHOP terminated

Dismiss the Corrected Complaint, which incorporates the arguments from its original Motion to Dismiss

and Reply Memorandum. There is no prejudice to either party in taking this approach, given the fact that

the correct meaning was obvious in the initial Complaint and the Defendant’s Motion to Dismiss the

Corrected Complaint relies on the same arguments it raised initially. See PDX N., Inc. v. Comm'r New

Jersey Dep't of Lab. & Workforce Dev., 978 F.3d 871, 880 n.6 (3d Cir. 2020), cert. denied sub nom. PDX

N., Inc. v. Asaro-Angelo, No. 20-1327, 2021 WL 4507638 (U.S. Oct. 4, 2021) (“Generally, ‘matters of

docket control,’ like whether to consider a motion, ‘are committed to the sound discretion of the district

court.’”) (citations omitted).

Ms. Summers’ employment. Id. ¶ 19. Plaintiff alleges that this termination was “because of her

race and in retaliation for Ms. Summers having reporting Sabatino.” Id. ¶ 21.

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:

a. The Race Discrimination Claim Is Sufficient under Rule 12(b)(6)

A plaintiff raising a claim of discrimination under § 1981 must allege facts showing “(1)

that [she] 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.”

Pryor v. Nat'l Collegiate Athletic Ass'n., 288 F.3d 548, 569 (3d Cir. 2002) (citing Brown v. Philip

Morris Inc., 250 F.3d 789 (3d Cir. 2001)). In the context of employment discrimination claims,

the Third Circuit has explained that “the substantive elements of a claim under section 1981 are

generally identical to the elements of an employment discrimination claim under Title VII.”

Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009).

Plaintiff attempts to state a claim of race discrimination under the pretext theory set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Pl.’s Resp. Def.’s Mot. Dismiss, ECF

8-2 at 2. To state a claim under McDonnell Douglas, a plaintiff must first establish a prima facie

case of discrimination by showing: 1) membership in a protected class; 2) qualification to hold the

position; 3) an adverse employment action under 4) “circumstances that could give rise to an

inference of discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008) (citing

McDonnell Douglas, 411 U.S. at 802). All the elements are necessary to state a claim, and Ms.

Summers must “put forth allegations that raise a reasonable expectation that discovery will reveal

evidence of the necessary element[s]” to survive a motion to dismiss. Fowler, 578 F.3d at 213

(internal quotation marks omitted).

Plaintiff’s Complaint clearly establishes the first three prongs. As an African American,

Plaintiff satisfies the first prong. She meets the second prong because, prior to her termination,

she was employed at CHOP for twenty years and there are no allegations that she is not qualified

for her job. And CHOP terminated her employment, which constitutes adverse employment action

under the third prong.

The fourth prong is a closer issue. Though the Complaint leaves much to be desired and

lays out only sparse factual allegations, I find that it is sufficient to establish a reasonable

expectation that discovery will reveal evidence of circumstances that could give rise to an inference

of discrimination. Many of Plaintiff’s allegations are conclusory, merely reciting the elements of

the claim, and need not be taken as true.2 Nonetheless, Plaintiff does allege some facts which must

be taken as true that, when viewed the light most favorable to the plaintiff, plausibly establish

entitlement to relief. For example, Ms. Summers pleads that her supervisor spoke and interacted

with her in a condescending way that was different from how she interacted with Plaintiff’s white

peers. Pl.’s Corrected Compl. ¶ 9, ECF 9. In addition, Ms. Summers alleges that she was reported

for violating a variety of Defendant’s policies when she did not in fact commit any of the

2 Evaluating a Rule 12(b)(6) motion is a three-step process. Connelly v. Lane Const. Corp., 809 F.3d 780,

787 (3d Cir. 2016). First, the Court determines the elements plaintiff must plead to state a claim. Id.

Second, the Court separates the complaint into allegations that must be taken as true and those that cannot

be. Id. Only factual, not conclusory, allegations must be taken as true. Id. Third, the court takes the factual

allegations to be true, draws all reasonable inferences in the plaintiff's favor, and determines whether the

complaint plausibly establishes entitlement to relief. Id.

infractions. Id. ¶¶ 10-20. As a result of these false discipline reports, she was suspended from

work for over a week, placed on a Performance Improvement Plan (PIP) and compelled to attend

additional counseling sessions and meetings, and ultimately, terminated. Id. ¶¶ 11, 15, 19. The

Complaint alleges that this unfounded discipline, placement on the PIP, and termination were

based on her race. See e. g., id. ¶¶ 13, 17, 21.

At this early stage of the proceedings, I find that the facts alleged to support the claim of

race discrimination are sufficient to survive Defendant’s Motion to Dismiss.

b. The Retaliation Claim Fails under Rule 12(b)(6)

The Supreme Court has held 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). As currently pled, the Complaint fails to establish

that Ms. Summers engaged in protected activity. I will therefore grant Defendant’s Motion to

Dismiss on the retaliation claim without prejudice.

To make out a claim for retaliation in the Title VII context, the Third Circuit has stated that

a plaintiff must show “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). Thus, to show that she “engaged in

a protected activity” under § 1981, Ms. Summers must effectively show that she reasonably

believed that Defendant was engaging in discrimination and that she explicitly challenged the

unlawful conduct.

Although , as discussed above, Ms. Summers pleads sufficient facts to evince a reasonable

belief that her employer illegally discriminated against her on the basis of race, Pl.’s Corrected

Compl. ¶¶ 7, 8, 9, 23, ECF 9, she fails to plead that her reports to the Compliance Department

constituted protected activity. In addressing how to show that a plaintiff has protested or opposed

a discriminatory activity, 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”).

Opposition need not be significant nor formal, however, “opposition to an illegal employment

practice must identify the employer and the practice—if not specifically, at least by context.”

Curay-Cramer v. Ursuline Acad. of Wilmington, Delaware, Inc., 450 F.3d 130, 135-136 (3d Cir.

2006). It is the “objective message conveyed, not the subjective intent of the person sending the

message, that is determinative” in the protected conduct analysis. Id. at 137.

As pled, her reports to the Compliance Department of disrespect and false allegations

without any mention of racial discrimination do not constitute protected activity under § 1981. In

her Complaint, Ms. Summers does not allege that she reported any unlawful racially discriminatory

action by her supervisors. She alleges reporting her supervisors for communicating with her in a

“disrespectful manner,” as well as falsely accusing her of delaying delivery of a patient to a

different floor and taking an unauthorized work break. Pl.’s Corrected Compl. ¶¶ 7, 8, ECF 9.

Indeed, in her response to Defendant’s Motion to Dismiss, Ms. Summers admits that she “did not

expressly accuse Sabatino and Windemere of race discrimination when she reported their

misconduct to defendant’s Compliance Department ... ”. Pl.’s Resp. Def.’s Mot. Dismiss, ECF 8-

2, at 4. Rather, Ms. Summers states that given the context, “it reasonably can be inferred that she

believed their actions were racially motivated.” Id.

Ms. Summer’s argument here fails on several grounds. First, while the Third Circuit has

held that opposition to an employment practice may be identified by context, here, the only

surrounding context pled in the Complaint is that she is African American and her supervisors are

white. Second, Ms. Summer’s own belief of discrimination and subjective state of mind are

irrelevant to the analysis of whether she engaged in protected conduct, because only the objective

message conveyed is determinative. Third, in analyzing the objective message communicated,

Ms. Summers does not allege that she explicitly complained about racial discrimination or that she

told the Compliance Department that she was being treated differently from her white peers. She

therefore cannot meet the protected activity requirement, as “[a] general complaint of unfair

treatment is insufficient to establish protected activity.” Curay, 450 F.3d at 135; see also Barber

v. CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir. 1995) (holding employee’s general complaint

of unfair treatment to human resources was not protected activity where employee did not

complain about discrimination or otherwise allege that a protected characteristic was a basis for

adverse employment action).

Because Ms. Summers fails to plead that she engaged in protected activity, Plaintiff’s

retaliation claim will be dismissed without prejudice.3

IV. Conclusion

For the reasons stated above, Defendant’s Motion to Dismiss is granted with respect to

Plaintiff’s retaliation claim and denied with respect to Plaintiff’s race discrimination claim.

/s/ Gerald Austin McHugh

United States District Judge

3 At this stage, Plaintiff is not granted leave to amend. In her response to the motion, she concedes she

did not complain of racial discrimination. If discovery materially changes the context in which the

complaints were made, Plaintiff may seek leave to amend at that time.