PAINADATH v. GOOD SHEPHERD PENN PARTNERS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JERRY J. PAINADATH,

Plaintiff,

CIVIL ACTION

v. NO. 22-3604

MELISSA LATTANZIO, et al.,

Defendants.

Pappert, J. April 26, 2024

MEMORANDUM

Pro se plaintiff Jerry Painadath’s third amended complaint alleges numerous

claims against his former employer, Good Shepherd Penn Partners, including violations

of the Pennsylvania Older Adults Protective Services Act, Title VII of the Civil Rights

Act and the Affordable Care Act. Once again, GSPP moves to dismiss. In December,

the Court granted GSPP’s motion to dismiss Painadath’s second amended complaint in

part and denied it in part. Specifically, the Court denied GSPP’s motion with respect to

Painadath’s claims under the OAPSA and ACA but granted it as to Painadath’s Title

VII claims because Painadath had alleged no facts showing he was discriminated

against because of his sex or religion. (ECF No. 51). The Court granted Painadath

leave to amend to include allegations of national origin discrimination and to cure the

deficiencies identified in his previously asserted Title VII claims. (Id.)

Painadath’s latest complaint is wide-ranging and contains many conclusory

allegations. Nonetheless, he alleges enough facts to raise a reasonable expectation that

discovery will reveal proof of sex and national origin discrimination, and his disparate

treatment and hostile work environment claims based on those grounds survive.

Painadath further alleges sufficient facts to state a disparate impact claim based on

GSPP’s alleged nepotism disparately impacting Catholics. But his Title VII disparate

treatment and hostile work environment claims based on religious discrimination still

suffer from the same, previously noted deficiencies, and they are now dismissed with

prejudice.1

I2

Painadath worked as a “clinical nurse 2” at Philadelphia Post-Acute Partners,

LLC d/b/a Good Shepherd Penn Partners. (Third Am. Compl. ¶ 48, ECF No. 52).3 He is

an Indian, Catholic man. (Id. ¶¶ 31–33). While working at GSPP, Painadath contends

he reported multiple patient safety issues and concerns of staff members using

excessive force or neglecting patients. (Id. ¶¶ 54–59, 76–77, 90–91). Painadath alleges

that in retaliation for those reports, GSPP fired him in violation of the OAPSA and

ACA. Painadath also contends he was discriminated against because of his sex,

1 Painadath’s OAPSA retaliation and ACA whistleblower claims survived GSPP’s prior motion

to dismiss for the reasons stated in the Court’s previous opinion. See (ECF No. 50). Though GSPP

moves to dismiss those claims again, the Court will not revisit them here. A defendant may not

challenge the sufficiency of an amended complaint with arguments that were previously considered

by the court in the first motion to dismiss. Nor may a defendant advance arguments that could have

been made in the first motion to dismiss but did not do so. See, e.g., United States Fidelity & Guar.

Co. v. Jepsen, No. 90-C-6931, 1991 U.S. Dist. LEXIS 16818, at *6–7 (N.D. Ill. Nov. 1, 1991).

2 The Court provided a comprehensive factual summary, particularly regarding the OAPSA

retaliation and ACA whistleblower claims, in a prior opinion. See (ECF No. 50). Here, it recounts

only the facts necessary to resolve the present motion.

3 All page numbers are referring to the ECF page number.

religion and national origin, and as a whole, GSPP’s nepotism policy disparately

impacted Catholics.

Most relevant here, Painadath complains of a string of incidents that he

contends were discriminatory and resulted in a hostile work environment. In August

2021, Painadath notified a charge nurse that a CNA named Crystal used excessive

force on an African American patient. Following the report, CNA Crystal apparently

assaulted him and called him names like “nigga,” “foreigners,” and “crusades.” (Id. ¶

79). Painadath alleges a representative from the human resources department told

him, “You came from India, so your [sic] a foreigner here . . . you came here to work . . .

just do your work and go home” and “I was hired specifically to overkill you because you

like to blow the whistle.” (Id. ¶¶ 77–78). Painadath adds that he was “left with notice

in an empty room for reporting the assault incident” and forced to take difficult

assignments thereafter. (Id. ¶¶ 81–82).

On October 30, 2021, Painadath notified a clinical coordinator named “Mrs.

Susan” of an older patient who was in a “neglected situation.” (Id. ¶¶ 91, 94). Mrs.

Susan allegedly told Painadath, “I will secure your job but you have to lie down for me”

and then apparently did a “non-verbal gesture.” (Id.) On November 1, 2021, Painadath

gave an oral report to the local area of aging and notified GSPP through its “abuse

coordinator grievance hotline.” (Id. ¶ 97). Days later, Painadath was put on

administrative leave without pay. (Id. ¶ 99). In the second week of November,

Painadath’s medical coverage was revoked. (Id. ¶ 101).

That same month, Painadath says he interviewed for an ICU nurse position at

“HUP,” which he contends was an “internal transfer position.” (Id. ¶ 102). Before the

interview, Painadath alleges one of the interviewers collected his resume and gave him

a different resume that she urged him to present during the interview. (Id. ¶ 102).

Painadath did not get the job even though he says he was qualified for it. (Id.)

While suspended, Painadath notified GSPP that he was the head of his

household and raising a family. In response, a GSPP administrator allegedly told him,

“This is a continuation of everything that happened in that hospital . . . we wanted to

spread fear among nurses for speaking up . . . we don’t want to appreciated [sic] you . . .

look for different career.” (Id. ¶ 103). Painadath was fired on December 14, 2021. (Id.

¶ 108).

Painadath further alleges that GSPP employs a significant number of non-

Catholics, and most belong to the same family, apparently in violation of GSPP policy.

(Id. ¶ 36). According to Painadath, at least three other Catholics were previously fired,

forced to resign or transferred to less desirable positions. (Id. ¶ 117). Painadath says

that GSPP has not hired any Catholics since he was fired. (Id. ¶ 118).

II

To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially

plausible when the facts pled “allow[ ] the court to draw the reasonable inference that

[a] defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Where the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged, but not shown, that the pleader is entitled to

relief. Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

When the complaint includes well-pleaded factual allegations, the Court “should

assume their veracity and then determine whether they plausibly give rise to an

entitlement of relief.” See Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.

2016) (quoting Iqbal, 556 U.S. at 679). However, this “presumption of truth attaches

only to those allegations for which there is sufficient factual matter to render them

plausible on their face.” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir.

2016). This plausibility determination is a “context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” Id. (quoting

Connelly, 809 F.3d at 786–87). Even if a party does not make a formal motion to

dismiss, the Court may, on its own initiative, dismiss the complaint for failure to state

a claim where the inadequacy of the complaint is apparent as a matter of law. See, e.g.,

Zaslow v. Coleman, 103 F. Supp.3d 657, 664 (E.D. Pa. May 5, 2015).

III

A prima facie case for disparate treatment requires a plaintiff to show: (1) he is a

member of a protected class; (2) he was qualified for the position he held; (3) he suffered

an adverse employment action; and (4) the action occurred under circumstances that

could give rise to an inference of intentional discrimination. 4 Makky v. Chertoff, 541

4 GSPP interpreted Painadath’s third amended complaint to assert disparate treatment claims

based on sex, religion and national origin. See (Mot. To Dismiss, ECF No. 53-2, at 14–18).

Construing Painadath’s pro se complaint liberally, the Court does as well.

A Title VII religious discrimination claim could also proceed under a failure to accommodate

theory. Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 281 (3d Cir. 2001).

F.3d 205, 214 (3d Cir. 2008). At the motion to dismiss stage, however, a plaintiff need

only allege enough facts to raise a reasonable expectation that discovery will reveal

proof of his claims.5 Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016).

Painadath alleges GSPP took multiple adverse actions against him, including

suspending him without pay, revoking his medical coverage and firing him. (Third Am.

Compl. ¶¶ 99, 101, 108). Thus, his claims hinge on whether any of these adverse

actions occurred under circumstances that give rise to an inference of discrimination.

Painadath does not appear to proceed under this theory, and in any event, he does not allege facts

supporting such a claim.

5 GSPP contends that Painadath’s Title VII claims are time-barred and equitable tolling does

not apply. (Mot. To Dismiss, ECF No. 53-2, at 21). Painadath alleges that he never received the

right to sue letter—and first saw it when GSPP attached it to a prior motion to dismiss—because the

EEOC mailed it to his old address. Paindath says he notified the EEOC of his new address. (Third

Am. Compl. ¶ 27). As alleged, Painadath’s claims may be subject to equitable tolling. See Baur v.

Crum, 882 F. Supp.2d 785, 799 (E.D. Pa. 2012) (finding that equitable tolling applied to situation

where the EEOC sent the right to sue letter to the plaintiff’s previous address even though the

plaintiff had informed the EEOC of the new address). GSPP argues that even if the EEOC mailed

the right to sue letter to the wrong address, equitable tolling should not apply because Painadath

received his right to sue letter by email on October 31, 2022. (Mot. To Dismiss, ECF No. 53-2, at 22).

In support of this assertion, GSPP urges the Court to take judicial notice of the EEOC’s activity log,

which allegedly indicates the EEOC electronically notified Painadath of his right to sue and he

downloaded it within sixteen minutes of it becoming available. (Id.)

Other courts asked to take judicial notice of an EEOC activity log at the motion to dismiss

stage have declined to do so. See, e.g, Singh v. Infotech Prism, LLC, No. 23-2250, 2023 U.S. Dist.

LEXIS 227803, at *18–19 (N. Ga. Dec. 21, 2023); Carrigan v. Archdiocese of Milwaukee, No. 22-

1084, 2023 U.S. Dist. LEXIS 185138, 2023 WL 6810073, at *3–4 (E.D. Wis. Oct. 16, 2023). This

Court will not, either, because considering the activity log would require the Court to make “certain

assumptions or inferences about what the various timestamps, acronyms, and terminology

represent.” Singh, 2023 U.S. Dist. LEXIS 227803, at *18. GSPP may renew this argument at

summary judgment.

Relatedly, Painadath moves under Federal Rule of Civil Procedure Rule 12(f) to strike the

activity log as inadmissible hearsay. (ECF No. 54). Because the Court is not considering the activity

log at this time, Painadath’s motion is denied as moot. In any event, motions to strike exhibits

attached to a defendant’s motion to dismiss are procedurally improper. See In re Amarin Corp. PLC

Sec. Litig., No. 19-6601, 2021 WL 1171669, at *6 (D.N.J. Mar. 29, 2021). Federal Rule of Civil

Procedure 12(f) provides: “[t]he court may strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.” Id. (quoting Fed. R. Civ. P. 12(f)). An

attachment to a motion is not a pleading.

Painadath alleges enough facts to “nudge” his disparate treatment claims based

on sex or national origin discrimination “across the line from conceivable to plausible.”

Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). As to sex

discrimination, Painadath alleges that Mrs. Susan subjected him to an unwanted

sexual advance when she gave him a non-verbal gesture and said, “I will secure your

job but you have to lie down for me.” (Id. ¶ 91); (Resp. To Mot. To Dismiss, ECF No. 55,

at 5). He apparently refused, and days later, was placed on administrative leave

without pay. (Third Am. Compl. ¶ 99). Weeks later, his medical benefits were revoked;

a month after that, he was fired. (Id. ¶¶ 101, 108). As to national origin

discrimination, Painadath contends that the HR department told him, “You come from

India, so your [sic] foreigner here . . . you came here to work . . . just do your work and

go home.” (Id. ¶ 77). He says that CNA Crystal “assaulted” him and called him, among

other names, a foreigner.6 (Id. ¶ 79). He further adds his national origin was the

reason he was “left with a notice in an empty room for reporting the assault incident,”

(Id. ¶ 81), and not offered an internal transfer position at HUP despite claiming to be

qualified for it.7 (Id. ¶ 102). Discovery may reveal a different result, but for now,

Painadath’s sex and national origin discrimination claims survive. (Id. ¶¶ 101, 108).

However, his disparate treatment claim based on religious discrimination fails.

Though Painadath contends that GSPP previously fired or transferred to less desirable

positions three other Catholics, and that since he was fired, did not hire any Catholics,

6 The Court does not consider “nigga” or “crusades” to implicate Painadath’s Indian heritage.

7 Without additional facts, it is unknown if the denial of the transfer was also an adverse

employment action.

(Id. ¶¶ 117–18), he does not elaborate on those employment decisions or include

allegations that similarly situated comparators were treated more favorably. See, e.g.,

Golod v. Bank of Am. Corp., 403 F. App’x 699, 703 (3d Cir. 2010) (emphasizing that

conclusory allegations of discrimination based on religion are not adequate to

successfully support a claim because they do not include specific facts that show

nonmembers of the protected class are treated more favorably). Moreover, Painadath

fails to allege facts indicating GSPP was aware of his religion, and to state a claim for

religious discrimination, “employees [must have] informed their employers of their

religious beliefs prior to the alleged discriminatory action” because an “employee’s

religion . . . is often unknown to the employer.” Darby v. Temple University, 216 F.

Supp.3d 535, 542 (E.D. Pa. 2016).

IV

Painadath also alleges a disparate impact claim, though he does not assert it in a

specific count. (Third Am. Compl. ¶ 36). A disparate impact claim under Title VII

arises when an employer is shown to have used a specific employment practice, neutral

on its face, but caused a substantial adverse impact on a protected group which cannot

be justified as serving a legitimate business goal. NAACP v. N. Hudson Reg'l Fire &

Rescue, 665 F.3d 464, 476 (3d Cir. 2011). “Unlike the disparate treatment theory of

liability, a claim for disparate impact does not require proof of discriminatory motive.”

Crawford v. Verizon Pa., Inc., 103 F. Supp.3d 597, 606 (E.D. Pa. 2015). At the motion to

dismiss stage, a plaintiff need only “plead that a facially neutral practice’s adverse

effects fall disproportionately” on a protected class. Houle v. Walmart, Inc., 447 F.

Supp.3d 261, 279 (M.D. Pa. 2020).

"[N]epotism, if it were proved to exist, could . . . be subject to challenge if it had a

disparate impact on minorities.” Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642,

655 n.9 (1989). Here, Painadath contends “GSPP employs a significant number of ‘Non

Catholic’ and most of them belongs to a same family even though GSPP policy clearly

restrict employment of family member under same manager.” (Third Am. Compl. ¶ 36).

Painadath adds that GSPP has fired, transferred, or forced to resign “at least three”

Catholics, and has not hired any Catholics since he was fired. (Id. ¶¶ 117–18).

Drawing all reasonable inferences in his favor, Painadath has stated a disparate impact

claim. See United States v. Pennsylvania, 100 F. Supp.3d 544, 553 (M.D. Pa. 2015);

Hagan v. City of New York, 39 F. Supp.3d 481, 499 (S.D.N.Y. 2014); Rodriguez v. Town

of Ramapo, 412 F. Supp.3d 412, 439–40 (S.D.N.Y. 2019).

V

A

Painadath also asserts hostile work environment claims.8 GSPP contends that

Painadath fails to allege facts supporting a hostile work environment claim based on

sex or religion because nothing in his complaint indicates he faced intentional

discrimination because he is a Catholic man. GSPP further contends Painadath failed

to plead facts supporting a hostile work environment claim based on national origin

discrimination because Painadath did not allege respondeat superior liability, nor can

8 The third amended complaint only explicitly alleges a hostile work environment claim based

on sex discrimination. However, the Court (and GSPP) construe his pro se complaint to also allege a

hostile work environment claim based on religion and national origin discrimination. See (Mot. To

Dismiss, ECF No. 53-2, at 27–31). However, for the reasons states supra Section III, Painadath did

not allege any facts showing he was intentionally discriminated against because he is Catholic, and

thus cannot maintain a hostile work environment claim based on his religion.

the alleged “foreigner” comments constitute “severe or pervasive” conduct. (Mot. To

Dismiss, ECF No. 53-2, at 28–30).

B

To succeed on a hostile work environment claim, a plaintiff must establish: (1) he

suffered intentional discrimination; (2) the discrimination was severe or pervasive; (3)

the discrimination detrimentally affected him; (4) the discrimination would

detrimentally affect a reasonable person in like circumstances; and (5) the existence of

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

Cir. 2013).

C

Construed liberally, Painadath pleads a hostile work environment sexual

harassment claim. Painadath alleges that Mrs. Susan made a sexual advance on him

by giving him a non-verbal gesture and telling him she would “secure [his] job but [he]

would have to lie down for [her].” As such, Paindath has pled facts indicating he was

harassed “because of his sex.” Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 213 (3d

Cir. 2017) (comments about the plaintiff’s body establish that harassment occurred

because of his sex). Painadath also alleges he was detrimentally affected by his work

environment, as he was stressed, his relationships with loved ones soured and he

stopped watching sports and exercising. (Id. ¶¶ 121–23). A reasonable person could

also find an unwanted sexual advance by a supervisor to be humiliating or offensive.

Painadath further alleges Mrs. Susan was a supervisor, thus pleading the existence of

respondeat superior liability. See In Re Tribune Media Co., 902 F.3d 384, 399 (3d Cir.

2018). And though the bar for establishing “severe or pervasive” conduct is high,

“[c]ourts in this Circuit have . . . ‘shown a reluctance to dismiss a complaint at the

12(b)(6) stage when the primary challenge to the hostile work environment claim is

whether or not the conduct in question is severe [or] pervasive.’” Fedder v. Bloomsburg

Univ. of Pennsylvania, No. 23-1678, 2024 WL 580552, at *3 (M.D. Pa. Feb. 13, 2024)

(collecting cases). The question of whether allegations in a complaint are ultimately

sufficient to prove that the racially harassing discrimination was severe or pervasive is

a question best saved for summary judgment.9 See, e.g., Robinson v. Amtrak, 880 F.

Supp.2d 575, 582 (E.D. Pa. 2012).

Painadath’s apparent, purported hostile work environment claim based on

national origin discrimination also survives for now. As noted supra Section III,

Painadath alleges enough facts to raise a reasonable expectation that discovery will

reveal proof of national origin discrimination. Painadath also alleges he was

detrimentally affected insofar as the stress affected not only his ability to care for

patients, but his life outside of work. (Id. ¶¶ 120–23). Liberally construed, he also

alleges respondeat superior liability because he contends “GSPP failed to take proper

steps” in response to the purported comments he faced. (Id. ¶ 80). And again, while

9 Unwanted sexual advances can also constitute a quid pro quo sexual harassment claim. See

Tomkins v. Pub. Serv. Elec. & Gas Co., 568 F.2d 1044, 1048-49 (3d Cir. 1977). Such unwelcome

requests can constitute quid pro quo harassment when (1) submission to such conduct is made either

explicitly or implicitly a term or condition of an individual’s employment [or] (2) submission to or

rejection of such conduct by an individual is used as the basis for employment decisions affecting

such individual. Cherisme v. Aids Care Grp., No. 15-6420, 2016 U.S. Dist. LEXIS 97118, at *6 (E.D.

Pa. July 26, 2016) (quoting Bonenberger v. Plymouth Twp., 132 F.3d 20, 28 (3d Cir. 1997)). Although

Painadath does not directly proceed under this theory, he does allege that Mrs. Susan, apparently a

supervisor, told him she would “secure [his] job” and then allegedly made a sexual advance. (Third

Am Comp. ¶ 91). Painadath seemingly refused, and days later, was placed on administrative leave.

(Id. ¶ 99).

GSPP contends that the comments were neither sufficiently severe nor pervasive, that

question is better addressed at summary judgment. See Fedder, 2024 WL 580552, at

*3.

An appropriate Order follows.

BY THE COURT:

__/s_/_ _G_e_r_a__ld__ J__. _P_a__p_p_e_r_t_ _

GERALD J. PAPPERT, J.