Trevizo v. Del Toro

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KETZY TREVIZO, : CIVIL NO: 1:23-CV-00508

:

Plaintiff, : (Magistrate Judge Schwab)

:

v. :

:

CARLOS DEL TORO, Secretary of :

the Navy, :

:

Defendant. :

MEMORANDUM OPINION

I. Introduction.

Plaintiff Ketzy Trevizo claims that her employer, the United States

Department of the Navy, discriminated against her in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Currently

pending is the defendant’s motion to dismiss and/or for summary judgment. For

the reasons discussed below, we will grant that motion to the extent we will

dismiss Trevizo’s complaint for failure to state a claim upon which relief can be

granted. We will, however, grant Trevizo leave to file an amended complaint.

II. Background and Procedural History.

Trevizo began this action by filing a complaint on March 22, 2023, naming

Carlos Del Toro, the Secretary of the Navy, as the defendant. Claiming that the

Department of the Navy discriminated against her based on her gender, ethnicity,

and color, Trevizo is proceeding under Title VII. She alleges the following facts in

her complaint.

Beginning in May 2016, Trevizo, who “is a Hispanic female with brown

skin, of Puerto Rican decent,” was employed at the Naval Supply Systems

Command, Ammunitions Logistics Center in Mechanicsburg, Pennsylvania, as a

Supervisory Logistics Management Specialist. Doc. 1 ¶¶ 3, 9, 10. Catherine Butler

was Trevizo first-level supervisor. Id. ¶ 11. In 2019, Captain Arcangelo Dell’Anno

became Butler’s first-level supervisor and Trevizo’s second-level supervisor. Id.

¶ 12.

Trevizo contends that she was subject to “[a] hostile and abusive work

environment” that “was created by pervasive and continuous discriminatory

actions” by Butler, who “continuously treated” her “less favorably than her white,

male counterparts[.]” Id. ¶ 13. “By way of illustration, and without limitation,”

Trevizo lists the following as “some examples of this behavior” by Butler:

• Ms. Butler refused to permit Ms. Trevizo to move her

ergonomically fitted office furniture with her when she was

moved to another office, forcing Ms. Trevizo to work at a desk

that was not accommodating to her physical needs, as was

established as necessary through an ergonomic study;

• Ms. Butler denied Ms. Trevizo’s request to telework due to a

school closure for a snowstorm, advising that telework was not

authorized to watch children, despite Ms. Butler doing just that,

only a few months prior to this denial;

• Ms. Butler stated to Jeremy Hilliker, a white male, that, “it is

so much nicer having you attend the meetings, you are so much

more agreeable,” during Ms. Trevizo’s maternity [leave] and

while Mr. Hilliker was the acting division head in place of Ms.

Trevizo;

• Despite notice to Ms. Butler, Ms. Butler refused and/or failed

to have a motor repaired for Ms. Trevizo’s standup desk, thus

eliminating any benefit that could have been appreciated by Ms.

Trevizo;

• Ms. Butler attempted to interfere with Ms. Trevizo’s

husband’s consideration for employment as a Logistics

Management Specialist, in the department managed by Keith

Rhodes, by advising Mr. Rhodes to refrain from interviewing

Ms. Trevizo’s husband for the position;

• Ms. Trevizo’s request to hire a developmental hire was met

with significant pushback from Ms. Butler and additional

hurdles to overcome, as compared to these types of hire

requests being readily approved for Ms. Trevizo’s white, male

predecessor, and a subsequent request by Mr. Rhodes, without

pushback and additional steps inserted into the process;

• The work product produced by Ms. Trevizo’s division was

scrutinized differently while under the management of Ms.

Trevizo, compared to when it was managed by her white, male

predecessor, Craig Murphy, or while under the temporary

management of Mr. Hilliker;

• Ms. Butler consistently denied approval of developmental

training for Ms. Trevizo that would assist her in her

promotional prospects within her career, even inserting herself

to deny some training opportunities that did not require

supervisor approval;

• Ms. Butler seemed to consistently misinterpret e-mails from

Ms. Trevizo as though they were aggressive or overstepping her

authority; and

• Ms. Butler used one instance of her misinterpretation of an e-

mail to justify adverse actions toward Ms. Trevizo on three

separate occasions.

Id. According to Trevizo, Captain Dell’Anno failed and/or refused to correct

Butler’s actions including by failing or refusing to correct Butler’s “use of one

misinterpreted e-mail as the basis for three separate adverse actions toward”

Trevizo and by failing or refusing to correct Butler’s “improper denials of

developmental training opportunities for” Trevizo. Id. ¶ 14. Trevizo also alleges

that Captain Dell’Anno “improperly altered the course of hiring for a position that

[she] was quailed for and had applied for, in order to make it more difficult for

[her] to be selected for the position.” Id. Trevizo asserts that her “gender, ethnicity

and/or color, were motivating factors in the circumstances, actions and omissions

that created the hostile and abusive work environment for” her. Id. ¶ 15.

Trevizo requested Equal Employment Opportunity (“EEO”) counseling

regarding the discrimination and harassment by Butler, and after an EEO counselor

issued a Notice of Right to File a Formal Complaint of Discrimination, in January

2021, Trevizo filed a formal complaint. Id. ¶¶ 16–17. A private contractor

investigated Trevizo’s claims, and an EEOC administrative judge subsequently

issued a decision and order granting summary judgment. Id. ¶¶ 18–19.1 The

Department of the Navy issued a final order on December 22, 2022. Id. 20.2

Trevizo filed the complaint in this case within 90 days of the issuance of the final

order. Id.

The complaint contains two counts. Count I is labeled as “Discrimination in

Violation of Title VII of the Civil Rights Act of 1964.” Id. at 8. In this count,

Trevizo claims that “[t]he Defendant has continuously discriminated against [her]

because of her gender, ethnicity and/or color, by engaging in a course of conduct,

including but not limited to, at least some of the acts and omissions set forth

above.” Id. ¶ 25. And she contends that her “gender, ethnicity and/or color, were

motivating factors in the Defendant’s decision to treat [her] in a disparate manner.”

Id. ¶ 26. Trevizo alleges that she suffered damages as a result of the defendant’s

“discriminatory actions and inactions[.]” Id. ¶ 27.

1 Although Trevizo does not explicitly so allege, it is implied by the fact that

Trevizo filed this action that the summary judgment was against her and in favor of

the defendant.

2 Again, although not explicitly alleged, it is implied that the final decision

was not in Trevizo’s favor.

Count II is labeled as “Harassment in Violation of Title VII of the Civil

Rights Act of 1964.” Id. at 9. In this count, Trevizo claims that “[t]he Defendant

has continuously harassed [her] because of her gender, ethnicity and/or color, by

engaging in a course of conduct, including but not limited to, at least some of the

acts and omissions set forth above, thus creating a hostile and abusive work

environment.” Id. ¶ 32. She alleges that the “harassing, course of conduct by the

Defendant was unwelcomed,” that she “perceived the working environment to

actually be abusive and hostile, and a reasonable person in [her] circumstances

would have considered the working environment suffered by [her] to be abusive

and/or hostile.” Id. ¶¶ 33–34. She also alleges that the defendant “knew or should

have know of the harassment but failed to take prompt remedial action to address

the circumstances.” Id. ¶ 35. And she contends that her “gender, ethnicity and/or

color, were motivating factors in the Defendant’s decision to treat [her] in a

harassing manner.” Id. ¶ 36. Trevizo alleges that she suffered damages as a result

of the defendant’s “harassing actions and inactions, as well as the Defendant’s

failure to take prompt remedial action to prevent the harassment[.]” Id. ¶ 37.

Trevizo is seeking compensatory damages, “[i]njunctive relief, equitable

relief, affirmative relief, accrual of back pay,” attorney’s fees, costs, and interest.

Id. at 11–12 (Wherefore Clause).

The parties consented to proceed before a magistrate judge pursuant to 28

U.S.C. § 636(c), and the case was referred to the undersigned. Currently pending

is the defendant’s motion to dismiss and/or for summary judgment. See doc. 11.

That motion has been fully briefed. See docs. 19, 33, 38.

III. Discussion.

“In 1972, Congress extended Title VII’s protection to federal employees.”

Francis v. Mineta, 505 F.3d 266, 271 (3d Cir. 2007). The federal-sector provision

of Title VII provides that “[a]ll personnel actions affecting employees or applicants

for employment” in specified federal departments and agencies “shall be made free

from any discrimination based on race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-16(a).

“Workplace behavior may violate Title VII in a variety of ways.” Kengerski

v. Harper, 6 F.4th 531, 537 (3d Cir. 2021). Two types of Title VII claims are

potentially relevant here. The first category is status-based discrimination claims.

See Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342 (2013) (referring to

claims based on “basic workplace protection such as prohibitions against employer

discrimination on the basis of race, color, religion, sex, or national origin, in hiring,

firing, salary structure, promotion and the like” as status-based discrimination

claims). The second category is hostile-work-environment claims. Faragher v.

City of Boca Raton, 524 U.S. 775, 786 (1998) (observing that it has held that

“harassment so severe or pervasive as to alter the conditions of [the victim’s]

employment and created an abuse working environment violates Title VII”)

(internal quotation marks and citation omitted)).

A. Because Trevizo has denied asserting any discrete status-based

discrimination claims, Count I of the Complaint will be dismissed.

The defendant construed Trevizo’s complaint as raising both discrete status-

based discrimination claims and a hostile-work-environment claim. Construing

Trevizo’s allegations regarding the actions by Butler, see doc. 1 ¶ 13, as raising

discrete discrimination claims, the defendant contends that Trevizo fails to state

any discrimination claims upon which relief can be granted because she has failed

to allege any adverse actions that significantly altered her employment status. The

defendant also contends that he is entitled to summary judgment as the

discrimination claims based on Butler’s actions because Trevizo cannot show that

she was subject to an adverse action, the Department of Navy had legitimate non-

discriminatory reasons for the actions of Butler, and Trevizo cannot show that

those reasons were pretext for discrimination. The defendant also construed

Trevizo’s allegation that “Captain Dell’Anno improperly altered the course of

hiring for a position that [she] was qualitied for and had applied for, in order to

make it more difficult for [her] to be selected for the position,” doc. 1 ¶ 14(c), as a

discrete failure-to-promote discrimination claim. As to that claim, the defendant

contends that he is entitled to summary judgment and that claim should be

dismissed because Trevizo did not file the instant action within 90 days of the

Department of Navy’s final agency decision as to that claim.3

Trevizo’s response to the defendant’s argument regarding the purported

discrimination claims is that she is not bringing discrimination claims. Rather, she

asserts that both counts in her complaint are “based upon the creation of a hostile

3 The defendant cites to 42 U.S.C. § 2000e-5(f)(1), which provides, in part,

that if the EEOC dismisses a charge, it “shall so notify the person aggrieved and

within ninety days after the giving of such notice a civil action may be brought

against the respondent named in the charge . . . by the person claiming to be

aggrieved[.]” The federal sector provision of Title VII incorporates the provisions

of § 2000e-5(f)–(k). See 42 U.S.C. § 2000e-16(d). It also provides, in pertinent

part:

Within 90 days of receipt of notice of final action taken by a

department, agency, or unit referred to in subsection (a), or by

the Equal Employment Opportunity Commission upon an

appeal from a decision or order of such department, agency, or

unit on a complaint of discrimination based on race, color,

religion, sex or national origin, brought pursuant to subsection

(a), . . . an employee or applicant for employment, if aggrieved

by the final disposition of his complaint . . . may file a civil

action as provided in section 2000e-5 of this title, in which civil

action the head of the department, agency, or unit, as

appropriate, shall be the defendant.

42 U.S.C. § 2000e–16(c). Here, the defendant contends the Department of the

Navy issued its final agency decision as to the failure-to-promote discrimination

claim on July 12, 2022, but Trevizo did not file the instant action until March 22,

2023—well after 90 days from of the date of the final agency decision.

work environment.” Doc. 33 at 2. And specifically, as to the allegation that

“Captain Dell’Anno improperly altered the course of hiring for a position that [she]

was qualitied for and had applied for, in order to make it more difficult for [her] to

be selected for the position,” doc. 1 ¶ 14(c), Trevizo asserts that she is not asserting

a failure-to-promote claim, but that “Captain Dell’Anno’s altering of the hiring

process is just another fact to further support the hostile work environment,” doc.

33 at 2. Trevizo also did not present any arguments in opposition to the

defendant’s arguments that the discrimination claims should be dismissed or he

should be granted summary judgment as to those claims. Rather, Trevizo’s brief

address only the hostile-work-environment claim.

Trevizo’s response that she is not asserting discrete discrimination claims is

surprising given that her complaint contains two counts—Count I labeled

discrimination and Count II labeled harassment. Nevertheless, given Trevizo’s

assertion that she is not bringing discrete discrimination claims and her failure to

oppose dismissal of such claims, we will dismiss Count I of the complaint.4

4 It is unclear why Trevizo would include two counts in her complaint if she

is bringing only a hostile-work-environment claim. And to the extent she is

suggesting that she is presenting two different hostile-work-environment claims,

she has not explained on what basis she could do so, what the difference in the

claims is, or why she would label one such claim as a discrimination claim and the

other as a harassment claim.

B. Trevizo fails to state a hostile-work-environment claim upon which

relief can be granted.

The defendant contends that the Trevizo’s hostile-work-environment claim

should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because it fails to state a

claim upon which relief can be granted. For the reasons discussed below, we will

grant the motion to dismiss the hostile-work-environment claim. We will also

grant Trevizo leave to amend.5

1. Pleading and Fed. R. Civ. P. 12(b)(6) 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 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 only the

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

5 In the alternative to dismissal, the defendant contends that he is entitled to

summary judgment as to the hostile-work-environment claim. Because we will

grant the motion to dismiss the hostile-work-environment claim pursuant to Fed. R.

Civ. P. 12(b)(6)—with leave to amend—we do not reach the defendant’s

alternative contention that he should be granted summary judgment.

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).

2. Trevizo fails to plausibly allege that she was subject to severe or

pervasive discrimination.

In order to prevail on a hostile-work-environment claim, a plaintiff must

establish (1) that she suffered intentional discrimination because of a protected

characteristic, (2) that the discrimination was severe or pervasive; (3) that the

discrimination detrimentally affected her; (4) that the discrimination would have

detrimentally affected a reasonable person of like characteristics in like

circumstances; and (5) the existence of respondeat superior liability. Huston v.

Proctor & Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. 2009). “The

first four elements establish a hostile work environment, and the fifth element

determines employer liability.” Mandel v. M & Q Packaging Corp., 706 F.3d 157,

167 (3d Cir. 2013). Of course, at the motion-to-dismiss stage, a plaintiff need not

prove her case. Rather, the pleading “standard ‘simply calls for enough facts to

raise a reasonable expectation that discovery will reveal evidence of the necessary

element[s].’” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016)

(quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).

“Therefore, at this early stage of the proceedings, it is enough for [Trevizo] to

allege sufficient facts to raise a reasonable expectation that discovery will uncover

proof of her claims.” Id.

The defendant contends that Trevizo fails to allege facts supporting a

reasonable inference that she was subject to discrimination that was severe or

pervasive.6, 7 We agree.

6 In making this argument, the defendant addresses only the allegations

regarding Butler’s conduct. This is apparently because, as set forth above, the

defendant contends that Trevizo’s discrimination claim regarding Captain

Dell’Anno altering the course of hiring for a position that she applied for was not

timely filed. But, although the defendant appears to recognize that Trevizo is

alleging that Captain Dell’Anno’s conduct was part of her hostile-work-

environment claim, see doc. 19 at 16, the defendant does not specifically argue that

any part of the hostile-work-environment claim is untimely. Rather, given that the

defendant cites only to the final agency decision issued on July 12, 2022—which

dealt with Trevizo’s administrative status-based discrimination claim as well as an

administrative retaliation claim based on Captain Dell’Anno’s changing the job

posting, and not Trevizo’s administrative hostile-work-environment claim—we

construe the defendant’s timeliness argument as addressed only to Trevizo’s

purported status-based discrimination claim based on Captain Dell’Anno’s

changing the job posting. Because Trevizo has disclaimed that she is pursing such

a status-based discrimination claim, as set forth above, will dismiss any such claim.

But the fact that the status-based discrimination claim is not viable, does not

explain why the defendant failed to include Trevizo’s allegation regarding Captain

Dell’Anno’s changing the job posting as part of Trevizo’s hostile-work-

environment claim. In its reply brief, the defendant asserts that “Trevizo has not

cited any authority for the proposition that she can use separate, subsequent, and

untimely EEOC claim as background information in support of her present

Complaint. That is because she cannot.” Doc. 38 at 19. But while the defendant

has argued, and shown, that any status-based discrimination claim based on

Captain Dell’Anno changing the job posting is untimely, the defendant has not

developed an argument that Trevizo’s hostile-work-environment claim is untimely.

Nor has he developed an argument that Trevizo cannot include the allegation

regarding Captain Dell’Anno changing the job posting as part of her hostile-work-

environment claim.

7 Curiously, although earlier in her brief, Trevizo asserted that Captain

Dell’Anno’s action of changing the job posting was part of her hostile-work-

environment claim, Trevizo does not mention this when arguing in opposition to

For workplace harassment to be actionable, it must be sufficiently severe or

pervasive to alter the conditions of the plaintiff’s employment and create an

abusive working environment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,

67 (1986). “The ‘severe or pervasive’ standard is disjunctive and so ‘a plaintiff

need not show that her hostile working environment was both severe and

pervasive; only that it was sufficiently severe or sufficiently pervasive, or a

sufficient combination of these elements, to have altered her working conditions.’”

Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 n.12 (3d Cir. 2017) (quoting

Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 119 (2d Cir. 2010)).

Thus, ‘“some harassment may be severe enough to contaminate an environment

event if not pervasive; other less objectionable, conduct will contaminate the

workplace only if is pervasive.’” Castleberry v. STI Grp., 863 F.3d 259, 264 (3d

Cir. 2017) (quoting Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 2006)). But

‘“isolated incidents (unless extremely serious) will not amount to [harassment].”

Id. (quoting Jensen, 435 F.3d at 449 n.3).

the defendant’s assertion that she fails to allege severe or pervasive discrimination.

In determining whether Trevizo has alleged severe or pervasive discrimination, we

focus, as to do the parties, on the alleged actions of Butler. We note, however, that

including Captain Dell’Anno’s alleged changing of the job posting into the mix,

would not change our determination here that Trevizo failed to plausibly alleged

that she was subject to severe or pervasive discrimination.

“When the workplace is permeated with ‘discriminatory intimidation,

ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working environment,’ Title VII

is violated.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting

Meritor Savings Bank, 477 U.S. at 65 & 67). The “conduct must be extreme to

amount to a change in the terms and conditions of employment.” Faragher, 524

U.S. at 788. “Although the bar for establishing severe or pervasive discrimination

is relatively high, the determination of what constitutes severe or pervasive does

not lend itself to a mathematically precise test.” Fedder v. Bloomsburg Univ. of

Pennsylvania, No. 4:23-CV-01678, 2024 WL 580552, at *3 (M.D. Pa. Feb. 13,

2024) (internal quotation marks and citation omitted). Whether an environment is

hostile or abusive can be determined only by looking at all the circumstances.

Harris, 510 U.S. at 23. The circumstances “may include the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Id. “‘[S]imple teasing,’ offhand

comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the ‘terms and conditions of employment.’” Faragher,

524 U.S. at 788 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S.

75, 82 (1998)).

At the outset, we note that the complaint uses confusing language to assert

what alleged incidents are part of Count II—the hostile-work-environment claim.

In Count II, Trevizo claims that “[t]he Defendant has continuously harassed [her]

because of her gender, ethnicity and/or color, by engaging in a course of conduct,

including but not limited to, at least some of the acts and omissions set forth above,

thus creating a hostile and abusive work environment.” Id. ¶ 32. Although the

inclusion of the clause “at least some of the acts and omissions set forth above”

makes this assertion unclear, in her brief, Trevizo asserts that her complaint sets

forth “just ten examples, by way of illustration only, of how she was continuously

treated significantly less favorably than her white, male counterparts and

predecessor, by Ms. Butler.” Doc. 33 at 6-7 (citing doc. 1 at ¶ 13). Trevizo has not

alleged, nor does she argue that she alleged, severe discrimination. Rather, given

her reference to the multiple alleged actions or inactions by Butler, we construe

Trevizo to be arguing that she was subject to pervasive discrimination.

Here, Trevizo’s allegations are not sufficient to plausibly allege pervasive

discrimination. Trevizo does not allege when any of that alleged actions or

inactions by Butler took place or how they were connected. Moreover, many of

her allegations are vague and unsupported by facts suggesting how, or even if, they

impacted her work environment. For example, Trevizo alleges that Butler

“attempted to interfere” with her husband’s consideration for employment by

advising Mr. Rhodes to refrain from interviewing her husband. Doc. 1 ¶ 13(e). But

Trevizo does not allege whether Rhodes actually refrained from interviewing her

husband or whether her husband was actually hired. Nor does she allege how the

hiring—or not—of her husband, affected her work environment. Similarly,

although Trevizo alleges that she received “significant pushback” and “additional

hurdles” regarding a “developmental hire,” doc. 1 ¶ 13(f), she does not allege what

she means by “significant pushback” or “additional hurdles,” or how such

impacted her work environment. Nor does she allege whether she was able to

make the developmental hire. Further, Trevizo alleges the work product of her

division “was scrutinized differently” while under her management “compared to

when it was managed by her white, male predecessor, Craig Murphy, or while

under the temporary management of Mr. Hilliker.” Doc. 1 ¶ 13(g). But she does

not allege—even in general terms—how the work was scrutinized differently. And

even though she does not so allege, we assume that she means the work under her

management was scrutinized more harshly. But again, she does not allege—even

in general terms—in what manner it was scrutinized more harshly. Trevizo also

alleges that Butler “seemed to consistently misinterpret e-mails from [her] as

though they were aggressive or overstepping her authority,” and Butler “used one

instance of her misinterpretation of an email to justify adverse actions toward [her]

on three separate occasions.” Doc. 1 ¶ 13(i), (j). Yet Trevizo failed to allege any

facts whatsoever as to what adverse actions followed from Butler’s alleged

misinterpretation of the emails or how the alleged adverse actions or

misinterpretation of the emails affected her working conditions. Finally, we note

that although Trevizo alleges that “Butler consistently denied approval of

developmental training” for her, see doc. 1 ¶ 13(h), she does not allege what she

means by “consistently” in this context. We do not expect Trevizo to plead dates

or even exact numbers, but whether she was denied training twice, ten times, or

twenty times is important to our determination of whether she has pleaded

persuasive discrimination.

In addition to being vague, Trevizo does not allege facts tying the different

actions by Butler together. “[P]ervasive means not just episodic, but sufficiently

continuous and concerted.” Sousa v. Amazon.Com, Inc., No. 1:21-CV-717-SB,

2022 WL 4548910, at *2 (D. Del. Sept. 29, 2022) (internal quotation marks and

citation omitted), aff’d, No. 22-3043, 2023 WL 7486751 (3d Cir. Nov. 13, 2023).

But here, Trevizo’s allegations are largely episodic. She alleges two incidents

involving office furniture, one involving denial of telework, one comment made to

her replacement while she was on maternity leave, one instance of attempted

interference with the hiring of her husband, one instance involving a request to hire

a developmental hire, an unspecified number of instances regarding scrutinizing

work product, an unspecified number of instances of denial of training, and an

unspecified number of instances regarding misinterpreted emails. There is little

tying these episodes together. For example, there are no allegations regarding

statements or actions that would lead to an inference that these actions are

connected to one another.

Given the vague and episodic nature of the alleged conduct, we conclude

that Trevizo has failed to plausibly allege that she was subject to severe or

pervasive discrimination because of her gender, ethnicity, or color. In so

concluding, we are mindful that we cannot look at statements or incidents in

isolation. Rather, we must consider the totality of the circumstances and the entire

scenario regarding Trevizo’s work environment. Harris, 510 U.S. at 23

(“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by

looking at all the circumstances.”); Cardenas v. Massey, 269 F.3d 251, 261-62 (3d

Cir. 2001) (“[T]he advent of more sophisticated and subtle forms of discrimination

requires that we analyze the aggregate effect of all evidence and reasonable

inferences therefrom, including those concerning incidents of facially neutral

mistreatment, in evaluating a hostile work environment claim.”); Andrews v. City

of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990) (“A play cannot be

understood on the basis of some of its scenes but only on its entire performance,

and similarly, a discrimination analysis must concentrate not on individual

incidents, but on the overall scenario.”). We are also mindful that “[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, 2024 WL 580552, at

*3 (M.D. Pa. Feb. 13, 2024) (citing cases).

Nevertheless, hostile-work environment claims are dismissed at the 12(b)(6)

stage when the complaint fails to plausibly allege facts from which it can be

inferred that the plaintiff was subject to severe or pervasive harassment. See e.g.,

Sousa v. Amazon.com, Inc., No. 22-3043, 2023 WL 7486751, at *3 (3d Cir. Nov.

13, 2023) (“Sousa’s hostile work environment claim fails because she has not

sufficiently alleged that Dorsey’s conduct was so severe or pervasive that it altered

her conditions of employment.”); Rajendran v. Wormuth, No. 3:22-CV-00581,

2023 WL 2666695, at *7–8 (M.D. Pa. Mar. 28, 2023) (dismissing hostile-work

environment claim because the plaintiff “fails to describe harassment that is severe

or pervasive,” and observing that “[i]nstead, he alleges isolated incidents of denied

training, a single incident of discipline that was not proportional to the infraction,

and a demotion, that “[h]e does not aver that these actions changed the conditions

of his day-to-day employment,” that “[h]e does not describe an abusive working

environment,” and that “[t]he conduct he describes is not extreme”); Evan v.

DeJoy, No. 3:20-CV-49, 2023 WL 2577235, at *6 (M.D. Pa. Mar. 20, 2023)

(concluding that the complaint fails to state a hostile-work environment claim

because, among other reasons, the plaintiff “has not plausibly alleged that the

harassment was severe or pervasive enough to create an objectively hostile or

abusive work environment—an environment that a reasonable person would find

hostile or abusive” (internal quotation marks and citations omitted)); Henderson v.

Pennsylvania State Univ., No. 4:21-CV-00872, 2022 WL 838119, at *10 (M.D. Pa.

Mar. 21, 2022) (concluding that “even under the lenient standards applied to a

motion to dismiss, the allegations, as currently constituted, are insufficient to

demonstrate sufficiently pervasive or severe discrimination,” describing the

allegations as conclusory, and noting that the plaintiff “must put some meat on the

bones of his allegations in order to support his claim that racism and racial biases

permeate Penn State” (internal quotation marks and citation omitted)); Andrews v.

Williams WPC-I, LLC, No. 4:19-CV-02200, 2020 WL 4015404, at *6 (M.D. Pa.

July 16, 2020) (dismissing hostile-work environment claim because the plaintiff

“has not alleged enough to satisfy the high standard of establishing a hostile work

environment,” explaining that the plaintiff “has not made out that the performance

review, exclusion from emails and meetings, and bad faith responses were because

of [the plaintiff’s] age,” that “the alleged conduct was ‘physically threatening or

humiliating’ or that it ‘unreasonably interfere[d] with [his] work performance,’ and

noting that the “Court cannot divine the precise frequency or severity of this

conduct from the current minimal state of the pleadings” (internal citations

omitted)).

And “[t]o state a hostile work environment claim, the complaint need[s] to

describe conduct that reveal[s] the plaintiff’s work environment was so ‘permeated

with discriminatory intimidation, ridicule, and insult’ that it ‘alter[ed] the

conditions of [her] employment.’” Sousa, 2023 WL 7486751, at *3 (quoting

Harris, 510 U.S. at 21). Here, viewing the facts alleged as a whole and in the light

most favorable to Trevizo, we nevertheless conclude that, for the reasons set forth

above, Trevizo has failed allege facts that plausibly suggest that she was subject to

severe or pervasive discrimination because of her gender, ethnicity, or color that

altered the conditions of her employment. Accordingly, she fails to state a hostile-

work-environment claim upon which relief can be granted.8

C. Leave to Amend.

“[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). Here,

Trevizo requests that if the court concludes that her complaint fails to state a claim

8 Because we conclude that the complaint fails to state a hostile-work

environment claim upon which relief can be granted on this basis, we do not

address the defendant’s other arguments for dismissal of such claim.

upon which relief can be granted, she be given leave to amend. And we cannot say

that leave to amend would be inequitable or futile. Accordingly, we will grant

Trevizo leave to file an amended complaint.

IV. Conclusion.

For the foregoing reasons, we will grant the defendant’s motion to the extent

that we will dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). We will

also, however, grant Trevizo leave to file an amended complaint. An appropriate

order follows.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge