Ismail v. Honeywell International Inc.

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HESHAM ISMAIL, : CIVIL NO.: 1:21-CV-00143

:

Plaintiff, : (Magistrate Judge Schwab)

:

v. :

:

HONEYWELL INTERNATIONAL, :

INC., et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction.

Plaintiff Hesham Ismail (“Ismail”) claims that he was subjected to racial and

religious discrimination while working for the defendant, Honeywell International,

Inc. (“Honeywell”). Ismail, proceeding pro se, brings claims under Title VII of the

Civil Rights Act of 1964 and 42 U.S.C. § 1981 against Judson Weiss (“Weiss”),

Ismail’s immediate supervisor at Honeywell; Darius Adamczyk (“Adamczyk”), the

Honeywell CEO; and Honeywell itself. Honeywell and Weiss jointly filed an

answer to the complaint. Doc. 21. Adamczyk, however, filed the currently pending

motion to dismiss. Doc. 22. For the reasons set forth below, we will grant the

motion to dismiss the complaint without leave to amend.

II. Background and Procedural History.

Ismail began this action by filing a complaint on January 21, 2021. Doc. 1.

After the defendants entered their appearance (docs. 4, 5), and were granted an

extension of time to file a responsive pleading (doc. 8), the parties consented to

magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) (doc. 10). The

defendants then jointly filed a motion to dismiss (doc. 11), and a brief in support of

that motion (doc. 12). Ismail filed a brief in opposition to this motion. Doc. 14.

And the defendants filed a reply brief. Doc. 15. We granted in part and denied in

part this motion to dismiss, and gave Ismail leave to amend certain claims. Docs.

16, 17. As a result, Ismail filed an amended complaint against all defendants. Doc.

18. Honeywell and Weiss then filed an answer to the complaint (doc. 21) and

Adamczyk filed the presently pending motion to dismiss (doc. 22) and a brief in

support (doc. 23). After Ismail filed a brief in opposition (doc. 24), Adamczyk

filed a reply brief (doc. 25).1 The following facts are taken from Ismail’s amended

complaint.

1 In response to the reply brief, Ismail filed a letter addressed to the

undersigned. Doc. 26. Though written in the form of a letter, the document

directly addresses the content of Adamczyk’s reply brief. Id. Ismail did not seek,

nor was he given, the right to file a sur-reply as required by Local Rule 7.7. Id. We

thus consider this letter not as a sur-reply but as a stand-alone letter and address it

here. Doc. 26.

Ismail argues in the letter that he is not amending his complaint in his brief

in opposition, and that none of the factual allegations in his brief in opposition

were new. Id. Ismail also accuses the court of assuming that he, as a pro se

On February 26, 2013, Honeywell hired Ismail as a Mechanical Engineer

through Chicago Bridge & Iron Company (“CB&I”), an engineering agency. Doc.

18 at 8. This position reported to Weiss, a Honeywell employee. Id. In July of

2013, Weiss hosted a potluck lunch. Id. Ismail did not participate in the lunch

because he was “fasting for the Islamic holy month of Ramadan.” Id. It was during

this lunch that Weiss “found out” that Ismail “was an Arab Muslim through

[Ismail’s] coworkers.” Id. Ismail alleges that after the potluck lunch Weiss “began

targeting” him, giving him more work than his “non-minority counterparts,”

blaming him for non-existent mistakes, holding him to “unrealistic performance

expectations[,]” and making “continuous threats of termination for non-work

related reasons[.]” Id. On October 28, 2014, Ismail complained about this

harassment to William Olp, Weiss’s manager. Id.

On February 4, 2015, Weiss terminated Ismail’s employment. Id. According

to the complaint, Weiss explained that this termination was because Ismail’s

litigant, is “always wrong” and expresses concern that the court will adopt

Adamczyk’s arguments, because he is represented by a lawyer. Id.

We note for the parties that the facts we lay out here are all from the

amended complaint. To the extent that there are additional facts alleged in any of

the briefs, they are not considered. See Pennsylvania ex rel. Zimmerman v.

PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the complaint

may not be amended by the briefs in opposition to a motion to dismiss.”) (citing

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

further note for all parties that we liberally construe filings from pro se litigants,

including Ismail. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle

v. Gamble, 429 U.S. 97, 106 (1976)).

“presence caused [Weiss] ‘tension[.]’” Id. Weiss also stated that he could “no

longer work with [Ismail] because ‘you go to my boss and tell him I work you too

hard.’” Id. During this exchange, Weiss “acknowledge[ed] that there was no

work[-]related reason” for terminating Ismail’s employment. Id.

On February 11, 2015, Ismail contacted Honeywell via email and informed

them that he was terminated, in his opinion, “because of discrimination by” Weiss.

Id. A representative from Honeywell’s Human Resources Department (“HR”)

responded to the email and collected evidence2 of discrimination from Ismail. Id.

Per Ismail, HR then “promise[d] to investigate and[,] pending investigation, should

they [sic.] confirm discrimination, would reverse [Ismail’s] termination.” Id. In

June 2015, HR informed Ismail that it had concluded its investigation, and found

“no evidence of discrimination.” Id. at 9.

In January 2016, Ismail emailed Adamczyk with “audio evidence of

termination” that, according to Ismail, proves that “the termination was an act of

racial/religious discrimination.” Id. at 9. It is unclear in the complaint who

responded to this email, but Ismail alleges that “[i]n response [to his email with

‘audio evidence’], Honeywell threatens [Ismail] with criminal prosecution for the

2 Ismail states that HR “decline[d] audio evidence.” Doc. 18 at 8. Ismail

does not further explain what this audio evidence is.

audio, declines to discipline . . . Weiss, and declines to reopen the investigation

without ‘new’ information.” Id.

In July 2016, Ismail emailed the “Honeywell Corporate board” with “‘new’

information showing that [Ismail] reported the harassment to Pottsville Plant

Manager William Olp and that retaliation was cited during termination on audio.”

Id. No one responded to this email.

In the meantime, Ismail posted his resume online. Id. On October 16, 2017,

a Honeywell recruiter (“the recruiter”) saw Ismail’s resume online and contacted

him “for a direct[-]hire process engineering position at the Pottsville facility.” Id.

The recruiter conducted a phone screening of Ismail on November 14, 2017, which

Ismail describes as “successful.” Id. According to Ismail, during the phone

screening the recruiter “confirm[ed] that [Ismail] was ‘qualified’ and promised to

schedule an in[-]person interview[,] pending” confirmation of Ismail’s prior

experience with Weiss. Id.

On April 10, 2018, Ismail emailed the recruiter to “follow up on” his

application. Id. The next day, the recruiter responded to the email and informed

Ismail that “the hiring team decided to move forward with other candidates and

declined even the promised interview.” Id. Ismail asserts that he was the only

candidate with two “years of uniquely qualified work experience at that specific

Pottsville site[.]” Id. According to the complaint, “as a result of [the recruiter]

speaking with . . . Weiss, [Weiss] blocked [Ismail’s] hiring.” Id. “This is

motivated by [Weiss’s] stated words that [Ismail’s] presence makes him

uncomfortable to justify his termination. This discomfort is due to [Ismail’s]

belonging to a protected class as an Arab Muslim.” Id. Further, per Ismail, “[b]y

refusing to hold [Weiss] accountable for his discrimination, . . . Adamczyk enabled

[Weiss] to continue to discriminate against [Ismail] by preventing him from

proceeding with the new Honeywell position and is complicit in the

discrimination.” Id. Ismail further asserts that “Weiss[’s] decision to prevent

[Ismail] from being interviewed for [the] process engineering position . . . was an

act of retaliation for reporting his harassment.” Id.

Ismail’s complaint contains two counts: Count I is for refusal to hire due to

racial and religious discrimination and Count II is for refusal to hire due to

retaliation for protected conduct regarding racial and religious discrimination. Id.

at 8, 9. These claims are brought under Title VII for Honeywell and under 42

U.S.C. § 1981 for Adamczyk and Weiss. Id. For relief, Ismail seeks: (1)

“Defendants are to be held legally responsible for the[ir] discriminatory and

criminal actions”; (2) compensation and reimbursement for “any and all pay and

benefits [he] would have received had it not been for Defendants’ illegal actions”;

(3) actual damages; (4) damages for pain, suffering, and humiliation; and

(5) punitive damages. Doc. 18 at 11.

III. Pleading and Motion-to-Dismiss Standards.

In accordance with Fed. R. Civ. P. 12(b)(6), the court may dismiss a

complaint for “failure to state a claim upon which relief can be granted.” When

reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual

allegations in the complaint as true, construe the complaint in the light favorable to

the plaintiff, and ultimately determine whether [the] plaintiff may be entitled to

relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605

F.3d 223, 229 (3d Cir. 2010). In making that determination, we “consider [ ] the

complaint, exhibits attached to the complaint, matters of public record, as well as

undisputedly authentic documents if the [plaintiff’s] claims are based upon these

documents.” Id. at 230.

“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the

pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch.

Dist., 842 F. Supp. 2d 762, 769–70 (M.D. Pa. 2012). “Under Federal Rule of Civil

Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the

claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S.

662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The statement required by

Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff’s

claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S.

89, 93 (2007). Detailed factual allegations are not required, but more is required

than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause

of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other

words, a complaint must do more than allege the plaintiff’s entitlement to relief.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has

to ‘show’ such an entitlement with its facts.” Id.

In considering whether a complaint fails to state a claim upon which relief

can be granted, the court “‘must accept all facts alleged in the complaint as true

and construe the complaint in the light most favorable to the nonmoving party.’”

Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v.

Cty. Of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a

complaint’s bald assertions or legal conclusions when deciding a motion to

dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A

court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff

has not alleged.” Associated Gen. Contractors of Cal. v. California State Council

of Carpenters, 459 U.S. 519, 526 (1983).

Following Twombly and Iqbal, a well-pleaded complaint must contain more

than mere legal labels and conclusions. Rather, it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. In practice, consideration of the legal sufficiency of a complaint

entails a three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff

must plead to state a claim.” Second, the court should identify

allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Finally, “where

there are well-pleaded factual allegations, a court should

assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief.

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and

citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).

A complaint filed by a pro se litigant is to be liberally construed and

“‘however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94 (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege

sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina,

Inc., 704 F.3d 239, 245 (3d Cir. 2013).

IV. Discussion.

Adamczyk argues that the court should dismiss the complaint for three

reasons. Docs. 22, 23. He argues that Ismail’s claims are time-barred, because all

allegations against him occurred outside of the four-year statute of limitations for

§ 1981 claims. Doc. 23 at 6–7. Adamczyk argues that issue preclusion also bars

Ismail’s claims. Id. at 7–9. Furthermore, Adamczyk argues, Ismail’s claims do not

create a cause of action under 42 U.S.C. § 1981. Id. at 9–12.

Ismail argues that Adamczyk misrepresents his complaint. Doc. 24.

According to Ismail, “[t]his complaint is not about what [Adamczyk] did in 2016,

it is about what he was responsible for on April 18, 2018[.]”3 Id. at 1. In his reply

brief, Adamczyk argues that Ismail improperly attempts to proffer additional facts

in his brief in opposition.4 Doc. 25 at 1. Adamczyk further argues that, even if the

court were to consider these additional facts, Ismail still fails “to state cognizable

claims[.]” Id. at 2.

Ismail brings claims against Adamczyk under 42 U.S.C. § 1981, which

allows “a plaintiff who belongs to a racial minority [to] bring a claim for

3 Ismail argues that his complaint “clearly states’ “that the only date of

alleged discrimination act was on April 11, 2018[.]” Doc. 24 at 1; see also doc. 18

at 6. This discrepancy in dates does not affect our analysis.

4 For example, Ismail states in his brief in opposition that Adamczyk was

CEO of Honeywell on April 11, 2018. Doc. 24 at 1. The amended complaint does

not include such an allegation, however. Doc. 18. Instead, in the amended

complaint, Ismail alleges Adamczyk was CEO in January 2016 when he emailed

him with “audio evidence of termination” and in March 2022 when Ismail filed the

amended complaint. Doc. 18 at 9.

Furthermore, Ismail states in his brief in opposition that he “was denied

employment due to discrimination by Judson Weiss in which Darius Adamczyk

oversaw as the company’s chief executive.” Doc. 24 at 1. Ismail does not allege in

his amended complaint that Adamczyk oversaw Weiss’s allegedly discriminatory

decision to deny Ismail’s employment. Compare doc. 18 with doc. 24. We,

therefore, do not consider these additional allegations in the brief. See

Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.

1988) (“It is axiomatic that the complaint may not be amended by the briefs in

opposition to a motion to dismiss.”) (citing Car Carriers, Inc. v. Ford Motor Co.,

745 F.2d 1101, 1107 (7th Cir. 1984)).

purposeful race-based discrimination.” O’Haro v. Harrisburg Area Cmty. Coll.,

No. 1:18-cv-02073, 2020 WL 5819768, at *14 (M.D. Pa. Sept. 30, 2020) (citing

Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001)). The alleged

“purposeful discrimination must concern an activity identified in 42 U.S.C. §

1981(a).” Id. (citing Brown, 250 F.3d at 797). Section 1981 provides, in pertinent

part, that “[a]ll persons within the jurisdiction of the United States shall have the

same right . . . 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 . . . .” 42 U.S.C. § 1981(a). “For

purposes of this section, the term ‘make and enforce contracts’ includes the

making, performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship.” 42 U.S.C. § 1981(b). Section 1981 also encompasses retaliation

claims. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 446 (2008).

For a § 1981 claim to survive a motion to dismiss, “a plaintiff must plausibly

allege that: (1) the plaintiff is a member of a protected class; (2) she is qualified for

the position or satisfactorily performed the duties required by her position; and (3)

she suffered an adverse employment action.” Jones v. E. Airlines, LLC, No. 20-cv-

1927, 2021 WL 2456650, at *7 (E.D. Pa. June 16, 2021) (citing Wallace v.

Federated Dep’t Stores, Inc., 214 F.App’x. 142, 144–45 (3d Cir. 2007)). Here,

Ismail alleges that he is an Arab Muslim who, despite being qualified for the

process engineering position with Honeywell, was not hired for the position.

Failure to hire is thus the adverse employment action Ismail suffered.5

Section 1981 “can be violated only by purposeful discrimination.” General

Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982).

Furthermore, “[l]iability under § 1981 is personal in nature, much like that under

§ 1983, and cannot be imposed vicariously.” Boykin v. Bloomsburg University of

Pennsylvania, 893 F. Supp. 378, 394 (M.D. Pa. 1995). “Because liability is

premised upon intentional discrimination, personal involvement of a defendant is

essential.” Id. Thus, “[i]ndividuals can face personal liability under Section 1981

if they cause an intentional infringement of an individual’s Section 1981 rights or

‘if they authorized, directed, or participated in the alleged discriminatory

conduct.’” Randolph v. Allied Crawford Steel, Inc., 2021 WL 1666980 at *3 (M.D.

Pa. Apr. 28, 2021) (citing Al-Khazraji v. Saint Francis Coll., 784 F.2d 505, 518

(3d Cir. 1986) aff’d, 481 U.S. 604 (1987)). Additionally, the “U.S. Supreme Court

recently held that a plaintiff must also plausibly allege that race was a but-for cause

of the adverse employment action. Jones, 2021 WL 2456650 at *7 (citing Comcast

5 Adamczyk argues that failure to investigate or discipline an employee is

not an adverse action. Doc. 23 at 10–11. Be that as it may, the adverse action that

Ismail alleges he suffered is failure to hire. See docs. 18, 24.

Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1014–15

(2020)).

Here, Ismail alleges that, two years before he faced the above-described

adverse employment action, he emailed Adamczyk with evidence of discrimination

when his initial position with the company was terminated. Doc. 18 at 9. And,

“[i]n response, Honeywell threatens [Ismail] with criminal prosecution for the

audio, declines to discipline . . . Weiss, and declines to reopen the investigation

without ‘new information.’” Id. Ismail connects this action with Honeywell’s

failure to hire him, concluding that “[b]y refusing to hold [Weiss] accountable for

his discrimination, . . . Adamczyk enabled [Weiss] to continue to discriminate

against Ismail by preventing him from proceeding with the new Honeywell

position and is complicit in the discrimination.” Id. These facts, however, do not

amount to allegations of Adamczyk’s personal involvement. Ismail alleges only

that Adamczyk failed to hold one of his employees—Weiss—accountable for

discriminating against Ismail when he was terminated in 2015. Ismail then

concludes that this lack of accountability “enabled” Weiss to discriminate against

him. Id. Ismail does not allege that Adamczyk “cause[d] an intentional

infringement” of his rights. See Randolph v. Allied Crawford Steel, Inc., 2021 WL

1666980 at *3 (M.D. Pa. Apr. 28, 2021) (“Individuals can face personal liability

under Section 1981 if they cause an intentional infringement of an individual’s

Section 1981 rights or ‘if they authorized, directed, or participated in the alleged

discriminatory conduct.’”) (citing Al-Khazraji v. Saint Francis Coll., 784 F.2d 505,

518 (3d Cir. 1986) aff’d, 481 U.S. 604 (1987)). He does not allege that Adamczyk

“authorized, directed, or participated in” the decision not to continue the hiring

process. Id.

Ismail thus fails to state a claim against Adamczyk upon which relief can be

granted. Because we dismiss Ismail’s claims against Adamczyk on these grounds,

we reach neither Adamczyk’s argument that the claims are time-barred nor his

argument that they are barred by issue preclusion.

V. Amendment.

“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must

permit a curative amendment unless such an amendment would be inequitable or

futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). “Under

Rule 15(a), futility of amendment is a sufficient basis to deny leave to amend.”

Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir.

2010). “Futility ‘means that the complaint, as amended, would fail to state a claim

upon which relief could be granted.’” Id. (quoting in re Merck & Co. Sec.,

Derivative, & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007)). Thus, in

determining whether an amendment would be futile, we apply the same standard as

we apply in determining whether a complaint fails to state a claim upon which

relief can be granted under Fed. R. Civ. P. 12(b)(6). Id. “In other words, ‘[t]he

District Court determines futility by taking all pleaded allegations as true and

viewing them in a light most favorable to the plaintiff.’” Id. (quoting Winer Family

Trust v. Queen, 503 F.3d 319, 330–31 (3d Cir. 2007)).

Ismail was previously given leave to amend his complaint. Docs. 16, 17.

Ismail, however, has again failed to state a claim upon which relief can be granted.

We thus conclude that leave to amend would be futile.

VI. Conclusion.

Based on the foregoing, we will grant Adamczyk’s motion to dismiss (doc.

22). An appropriate order follows.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge