Poindexter v. Starbucks York Roasting Plant

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TRISTEN MERCEDES ) CIVIL ACTION NO. 1:21-CV-1847

POINDEXTER, )

Plaintiff )

)

v. ) (ARBUCKLE, M.J.)

)

STARBUCKS YORK ROASTING )

PLANT, )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Tristen Mercedes Poindexter (“Plaintiff”) initiated this employment

discrimination action alleging that her former employer, Starbucks Roasting Plant,

engaged in race-based discrimination in violation of Title VII. This matter is before

us upon consent of the parties pursuant to 28 U.S.C. § 636(c) and Rule 73 of the

Federal Rules of Civil Procedure.

Currently before the Court is Defendant’s Motion requesting that Plaintiff’s

Second Amended Complaint be dismissed for failure to state a claim. (Doc. 34).

For the reasons explained herein, Defendant’s Motion will be granted, and

Plaintiff’s second amended complaint will be dismissed without further leave to

amend.

II. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff worked as an Inventory Control Specialist at a Starbucks Roasting

Plant from May 13, 2019, until she was terminated on May 13, 2022. (Doc. 31, p.

1). Plaintiff alleges she was the only African American Inventory Control

Specialist. Id. During her employment, Plaintiff believes she was discriminated

against, and fired in retaliation for reporting that discrimination. Plaintiff’s claims

concern a series of separate incidents. As written, Plaintiff’s Second Amended

Complaint discusses her grievances in a disorganized fashion. We endeavored to

categorize those grievances and will discuss each category separately below, and

then will summarize the procedural history of this case.

A. ALLEGATIONS REGARDING MR. SUTTON’S DISREGARD FOR

CONFIDENTIAL INFORMATION ABOUT PLAINTIFF

Throughout her Second Amended Complaint, Plaintiff alleges that her

supervisor, Andrew Sutton, exhibited a disregard for Plaintiff’s private

information. To support her claim, Plaintiff cites two examples. First, Plaintiff

asserts that Mr. Sutton did not keep her time sheets in a secure location. She

reports Mr. Sutton was offended when she asked him to do so. Second, she asserts

that Mr. Sutton sent or handed Plaintiff’s ZIP card to a co-worker. Plaintiff asserts

that this conduct violated company policy and that it was discriminatory because

Plaintiff “was the only African American Inventory Control Specialist” Defendant

employed. (Doc. 31, p. 1).

Regarding Plaintiff’s timesheets, we infer that at the Starbucks Roasting

Plant, there is a time clock system that requires each employee to clock themselves

in and out. At the end of each week employees are required to review a time detail

to confirm their hours were entered correctly. Plaintiff alleges that Mr. Sutton

would leave employees’ timesheets in one or two central locations each week for

employees to pick up and review. Plaintiff objected to this practice and did not feel

comfortable having her timesheet left where others could view it.

On April 2, 2020, Plaintiff emailed Mr. Sutton and expressed privacy

concerns about this practice. (Doc. 31, p. 4, ¶ 1). Plaintiff alleges she proposed

several solutions, including “for plaintiff to receive the plaintiff’s confidential

information either a secured email or the plaintiff come to the plaintiffs former

Supervisor personally and retrieve such information.” Id. Once asked, it appears

that Mr. Sutton no longer left Plaintiff’s timesheet in a location where others could

see it. (Doc. 31, p. 4, ¶¶ 1-2). However, he frequently forgot to notify Plaintiff that

her timesheet was available to pick up. On one occasion, when Plaintiff stopped by

Mr. Sutton’s office to retrieve her timesheet, Mr. Sutton commented that Plaintiff

wanted special treatment. (Doc. 31, p. 1, § I ¶ 3). Plaintiff perceived Mr. Sutton’s

forgetfulness and his comment as race-based discrimination.

Plaintiff alleges that all employees were issued individual “ZIP cards.” She

explains that these ZIP cards were a confidential way for employees “to report

positive and negative practices” at the job site to their supervisors. (Doc. 31, p. 4, ¶

3).

On March 18, 2021, Plaintiff handed her ZIP card to Mr. Sutton. Id.

Approximately thirty minutes later, Mr. Sutton either handed or emailed Plaintiff’s

ZIP card to one of Plaintiff’s co-workers, TishaLiz Reyes-Pinedo. (Doc. 31, p. 4,

¶ 4). Plaintiff perceived this breach of her privacy as an “intentional” act by Mr.

Sutton. Plaintiff alleges she reported this issue to Mr. Sutton’s supervisor (Nicole

McCleary). (Doc. 31, p. 4, ¶ 1). Plaintiff viewed this incident as race-based

discrimination.

B. MR. SUTTON’S FAILURE TO FOLLOW COMPANY POLICY REQUIRING

ACKNOWLEDGEMENT AND VERIFICATION OF TIMESHEETS

Plaintiff alleges that Defendant has a policy that requires all employees to

sign a form each week acknowledging that they reviewed and verified the hours

reported on their timesheets. (Doc. 31, p. 2, ¶ 6). Plaintiff alleges that Mr. Sutton

left the timesheets out for employees to review and sign. He apparently did not

require employees to sign a separate form acknowledging receipt and verifying

hours worked.

On December 28, 2020, Mr. Sutton:

Sent an email out to all of the Inventory Control Department and

labeled the email “Time detail acknowledgement”. In the email [Mr.

Sutton’ stated that it has become a requirement that partners

acknowledge that they received their time details instead returning the

time details back to [Mr. Sutton].

Id. Plaintiff was offended by Mr. Sutton’s decision to frame this as a “new

requirement” when it was always the policy. Plaintiff viewed this incident as race-

based discrimination.

C. TIMESHEET ADJUSTMENTS

Plaintiff alleges that her timesheet was incorrectly adjusted twice, and no

one explained how or why that occurred.

On November 11, 2020, Plaintiff alleges her timesheet showed she worked

2.24 hours, when she worked almost nine hours. (Doc. 31, p. 2, ¶ 5). On January

11, 2021, Plaintiff alleges that her timesheet showed that she worked eight hours,

when she worked ten hours. (Doc. 31, p. 2, ¶ 7). Plaintiff reported these incidents

to both Mr. Sutton and Ms. McCleary via email and telephone. (Doc. 31, pp. 2, 4).

She requested an explanation for the errors but does not allege whether an

explanation was provided.

On January 12, 2021, Plaintiff contacted the Starbucks Roasting Plant’s

ethics hotline. (Doc. 31, p. 4, ¶ 2). Various partner resource employees followed-

up with Plaintiff regarding the timesheet issue via email and telephone. (Doc. 31,

p. 5, ¶¶ 3-6).

On April 29, 2021, Plaintiff met with Crystal Mayers, a Partner Resource

Associate. (Doc. 31, p. 2-3, ¶¶ 1-2). Ms. Mayers advised Plaintiff that a review of

Plaintiff’s timesheets for the period from May 1, 2020, through January 17, 2021,

revealed that 3.45 hours of time was not accurately credited. Id. Ms. Mayers

informed Plaintiff that a check for the discrepancy would be deposited into

Plaintiff’s account. Id. Plaintiff references the following letter from Ms. Mayers in

her Second Amended Complaint:

As a result of a recent payroll audit that spanned from May 1, 2020

through January 17, 2021, we’ve determined that some partner

timecards were adjusted incorrectly, resulting in a small loss of hours

for a few partners. Based on this audit, 3.45 hours of pay which

totaled $107.11 was processed. However, due to various deductions

your net payment is $81.73. A copy of the off cycle pay statement is

attached for your records.

(Doc. 20-7, p. 62).1

Plaintiff viewed the time adjustment errors as race-based discrimination.

1 In the “Gross Negligence” section of the Second Amended Complaint,

Plaintiff also references an email sent by Tracy Ellison to follow up with Plaintiff

about additional reports. (Doc. 31, p. 3, ¶ 3). Those “additional reports” from May

4, 2021 appear to concern the ZIP card incident. (Doc. 20-4, p. 57) (May 5, 2021

email from Plaintiff to herself noting that she reported the ZIP card incident to Ms.

McLeary on May 4, 2021). Ultimately, Plaintiff declined to meet with Tracy

Ellison to discuss any of her reports. (Doc. 20-3, p. 5) (May 8, 2021 email from

Plaintiff to Tracy Ellison declining to meet about Plaintiff’s concerns); see also

(Doc. 20-3, pp. 12-13).

D. CONFLICTS WITH JULIE RUPPERT AND CHRIS ROUPAS

We infer that the inventory control employees are required to complete a

“past pull” report. Plaintiff alleges that she trained a third shift Inventory Control

Specialist named Julie Ruppert to complete past pull reports on May 26, 2021.

(Doc. 31, p. 3, ¶ 1).

On June 14, 2021, Ms. Ruppert sent Plaintiff a message requesting that

Plaintiff complete the past pull report for the third shift. (Doc. 31, p. 3, ¶ 2). The

second amended complaint does not indicate how or whether Plaintiff responded to

the request.2 Later that evening, however, Ms. Ruppert approached Plaintiff at

2 The exhibits Plaintiff references in her second amended complaint include

a saved Microsoft Teams conversation between Plaintiff and Ms. Ruppert from

June 14, 2021. That conversation has been reproduced below:

[Julie Ruppert 6/14 10:26 PM]: since you guys aren’t working on that

inventory project anymore, are you going to do the pull

report now?

[Plaintiff 6/14 10:38 PM]: No I was not planning on it . . . Are you

asking me to help you with it?

[Plaintiff 6/14 10:56 PM]: Hello Julie I did not appreciate the way you

just approached me about the Past Pull. It was not what you

said but it was how you said it. Andrew [Sutton] was the one

who directed you to do the past pull report I had nothing to

do with Andrew [Sutton] directing you to handle the past

pull job task. If you have a concern with doing the past pull

then please address that concern with Management.

What you just did was unnecessary and uncalled for and I

really felt disrespected by how you approached me. I have

never talked to you in the manner that you just did tonight.

Moving forward please address me in the same manner as

you would address one of your other colleagues. Thank you.

Plaintiff’s desk. Id. Plaintiff alleges that Ms. Ruppert was aggressive, offensively

touched Plaintiff on the shoulder to gain her attention, then began aggressively

pointing in Plaintiff’s face while ordering Plaintiff to complete the third shift’s past

pull report. Id. Plaintiff sent Ms. Ruppert a message advising her that Plaintiff felt

her conduct was “unprofessional.” Id. Plaintiff alleges that Ms. Ruppert would not

have treated any of her other teammates that way. Id. Plaintiff reported the incident

to Mr. Sutton but rescinded that report the next day because Ms. Ruppert

confronted Plaintiff again and told Plaintiff that “all the plaintiff does is tell on

people and that the plaintiff is a little girl for reporting the incident.” (Doc. 31, p. 3,

¶ 3).

[Julie Ruppert 6/14 11:29 PM]: sorry. i thought i walk [sic] talking to

the group. Initially i know you , leroy and Jeanne were asked

to do it . I wasn’t trying to boss anyone around or be mean

about it.

I knew he wanted me to do past pull on a temporary basis. i

didn’t think it was supposed to be permanent[.]

[Plaintiff 6/15 12:23 AM]: Julie we can assist each other. If you need

help with something and I am here I will be more then

happy to help you but you have to speak up and tell

someone that you need to help because if you don’t then no

one is going to know. I accept your apology and we can

move forward[.]

[Julie Ruppert 6/15 12:30 AM]: ok. Thanks[.]

(Doc. 20-2, pp. 91-92) (errors in original).

Plaintiff also submitted a copy of her email to Mr. Sutton regarding the

incident. (Doc. 20-3, p. 54). On June 15, 2021 at 12:40 AM Plaintiff emailed Mr.

Sutton requesting that he disregard her email. She said that Julie apologized and

that they came to a better understanding. (Doc. 20-3 p. 69). Mr. Sutton responded

by thanking Plaintiff. (Doc. 20-3, p. 68).

On July 3, 2021, Plaintiff noticed that she was being followed by a Manual 2

Supervisor named Chris Roupas. (Doc. 31, pp. 3-4, ¶ 4).3 Plaintiff reported the

incident to Mr. Sutton, but no action was taken. Id.

3 The record in this case includes a email from Plaintiff addressed to herself

describing the incident. That email states:

On July 3rd 2021 at 1:45 in the morning I was approached by

Company Owned Supervisor Chris Roupas while I was at the IC

corral sorting pallets. While sorting pallets with my coworker Tisha

Reyes, Chris Roupas drove up on a golf cart looking for my coworker

Leroy Wentz. I told Chris that Leroy was off until Monday. Chris

Roupas told me that there was a location that had a pallet that needed

fixed at 274-110-5. I told Chris that my shift was getting ready to be

over but I would fix the pallet but I needed to go to the front to

retrieve my harness and cherry picker. As I walked to the front to

retrieve my harness and cherry picker with my coworker Tisha, I was

followed by Chris Roupas. Chris acted like he went to the main office

in the front but he instead waited for me to get onto my cherry picker.

After I got on my cherry picker and began to drive to location 274-

110-5 Chris Roupas followed me on the opposite side of where was

driving once I got to the location Chris stayed and watched me from

afar while I fixed the pallet that had 1 case sticking out. Once I came

down from the location, my coworker Tisha was standing at the end

of the aisle at 274-070-1 and Chris was at the beginning of the aisle at

274-00101. I asked Chris Roupas why he was following me and that it

is against Starbucks policy to micro manage employees and I did not

appreciate him doing that to me. Chris laughed at my statement and

said “Thanks for being a good little girl by doing my job”. He then

called Manager Justin Adams on the telephone and stated that “The

little girl did a wonderful job fixing the pallet and that we (my

coworker Tisha Reyes and I) were holding him hostage so he had to

let us leave”. I told Justin that I did not think that was appropriate

comment to state due to that being a lie. Justin stated that it was a job

and that Tisha and I may leave for the rest of the day. On July 6th

2021 I went to my Supervisor Andrew Sutton at 7:15 a.m. and

reported verbally what had taken place with Chris Roupas and he also

confirmed with my coworker Tisha.

Plaintiff suggests that these two incidents for the basis of a race-based

hostile work environment claim.

E. RETALIATORY TERMINATION

Plaintiff alleges that she reported Mr. Sutton’s conduct to Nicole McCleary,

and to an ethics hotline. (Doc. 31, pp. 4-5, ¶¶ 1-7). The Second Amended

Complaint suggests that both Ms. McCleary and “Partner Resource” employees

followed-up on those complaints. The last contact about these issues mentioned in

the Second Amended Complaint is an email exchanged with the Partner Resource

employee on May 7, 2021. Id. Plaintiff suggests that her termination, almost one

year later for “walking while completing inventory cycle counts” was related to her

complaints about Mr. Sutton. Id. She also alleges in her closing that she was

“terminated after legal documents were filed” against Defendant. (Doc. 31, p. 5).

F. PROCEDURAL HISTORY

On November 1, 2021, Plaintiff filed a two-page complaint in federal court

using a pre-printed form. (Doc. 1). Along with that complaint, Plaintiff paid the

required civil filing fee.

In her Complaint, Plaintiff indicated that she wished to file a claim under

Title VII for discrimination. (Doc. 1, p. 1). Defendant filed a motion to dismiss

Plaintiff’s Complaint, which was granted. (Docs. 15, 16, 20, 21, 23, 24). Plaintiff

(Doc. 20-3, p. 79) (errors in original).

was given leave to file an amended complaint on or before February 6, 2023. (Doc.

24).

On February 7, 2023, the Court received Plaintiff’s Amended Complaint.

(Doc. 26). Plaintiff’s Amended Complaint did not include a case caption, name any

defendants, or clearly identify her legal claims. Id. The Court deemed the amended

complaint as timely filed, but stayed the deadline for Defendant’s response and

scheduled a telephone conference with all parties to discuss how to proceed.

Following that conference, Plaintiff agreed to file a second amended complaint.

Plaintiff was advised that her second amended complaint must: include a case

caption; be titled as the “Second Amended Complaint”; clearly identify the parties;

set forth allegations in short (one sentence) numbered paragraphs; include a

detailed fact section; and clearly identify her legal claims. (Doc. 30).

On March 23, 2023, Plaintiff filed her Second Amended Complaint. (Doc.

31). Plaintiff’s Second Amended Complaint does not include a caption, does not

clearly identify any defendant in the caption or the body of her complaint, and does

not clearly identify her legal claims. Id. At the conclusion of the document,

Plaintiff requests that the Court consider “all of the submitted documentation filed

by plaintiff,” when reviewing the Second Amended Complaint. Id. at p. 6. We

infer that Plaintiff refers to the over 500 pages of exhibits Plaintiff attached in

response to Defendant’s first motion to dismiss. (Docs. 20-1, 20-2, 20-3, 20-4, 20-

5, 20-6, 20-7, 20-8). These exhibits include Plaintiff’s EEOC right to sue letter,

communications between Plaintiff and her co-workers, and emails Plaintiff sent to

herself to memorialize the events underlying her Second Amended Complaint. We

will treat these documents as exhibits to Plaintiff’s Second Amended Complaint, as

Plaintiff intended. Therefore, we may consider these documents without converting

Defendant’s Motion to Dismiss to a summary judgment motion.

On April 20, 2023, the Starbucks York Roasting Plant (“Defendant”) filed

its Motion to Dismiss Plaintiff’s Second Amended Complaint. (Doc. 34). Along

with its Motion, Defendant filed a brief in support. (Doc. 35). On May 8, 2023,

Plaintiff filed a brief in opposition. (Doc. 37). On May 22, 2023, Defendant filed a

reply. This matter has been fully briefed and is now ready to resolve.

III. LEGAL STANDARDS

With the foregoing facts and procedural history in mind, it is helpful to

review the legal standard for reviewing motions to dismiss, and the legal standards

relevant to the Title VII claims alleged in Plaintiff’s Second Amended Complaint.

A. MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER

RULE 12(B)(6) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant

to seek dismissal for failure to state a claim upon which relief can be granted.4

Under federal pleading standards, a pleading that states a claim for relief must

contain: (1) “a short and plain statement of the grounds for the court’s jurisdiction,

unless the court already has jurisdiction and the claim needs no new jurisdictional

support;” (2) “a short and plain statement of the claim showing that the pleader is

entitled to relief;” and (3) “a demand for the relief sought, which may include relief

in the alternative or different types of relief.”5

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”6

When determining whether this standard is met, the factual allegations contained in

the complaint must be accepted as true and must be construed in the light most

favorable to the plaintiff. A court’s obligation to accept all factual allegations as

4 The party seeking dismissal “bears the burden of showing that no claim has

been presented.” Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005).

5 Fed. R. Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(“the pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned the-defendant-unlawfully-

harmed-me accusation.”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007)).

6 Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

true, however, does not extend to legal conclusions.7 Similarly, a court need not

credit “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements.”8 “Rule 8 . . . does not unlock the doors of discovery for a

plaintiff armed with nothing more than conclusions.”9 A court must therefore

determine “whether, under any reasonable reading of the complaint, the plaintiff

may be entitled to relief.”10 “Determining whether a complaint states a plausible

claim for relief [is] . . . a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”11

When reviewing a complaint under this standard, a court typically proceeds

in three steps. First, it takes note of the elements a plaintiff must plead to state a

claim.12 Second, it identifies mere conclusions which are not entitled to the

assumption of truth.13 Third, it determines whether the complaint’s factual

allegations, taken as true, could plausibly give rise to an entitlement to relief.14

Furthermore, when ruling on a motion to dismiss under Rule 12(b)(6), “a court

7 Iqbal, 556 U.S. at 678 (observing that a court is “not bound to accept as

true a legal conclusion couched as a factual allegation.”).

8 Id. at 679.

9 Id. at 678-79.

10 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting

Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 (3d Cir. 2002) and citing

Twombly, 550 U.S. at 563 n.8).

11 Iqbal, 556 U.S. at 679.

12 Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting

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

13 Id.

14 Id.

must consider only the complaint, exhibits attached to the complaint, matters of

public record, as well as undisputedly authentic documents if the complainant’s

claims are based upon these documents.”15

B. TITLE VII CLAIMS

Title VII prohibits racial discrimination in the workplace.16 There are several

different theories of liability for race-based discrimination under Title VII,

including: disparate treatment, disparate impact, and hostile work environment.

The evidence required to prevail on a discrimination claim under Title VII is

dependent upon the theory of liability, and on the facts of a particular case.17

Moreover, when evaluating the pleading sufficiency, a complaint need not

15 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993)).

16 Section 2000e-2(a) of Title 42 of the United States Code provides that:

It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion,

sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for

employment in any way which would deprive or tend to deprive

any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such

individual’s race, color, religion, sex, or national origin.

17 Jones v. Sch. Dist. of Phila., 198 F.3d 403, 411 (3d Cir. 1999) (“We have

often remarked that the elements of a prima facie case depend on the facts of the

particular case.”).

establish a prima facie case to survive a motion to dismiss.18 Instead, the complaint

must include “enough facts to raise a reasonable expectation that discovery will

reveal evidence of the necessary elements.”19

This case appears to involve discrimination claims brought under disparate

treatment and hostile work environment theories. We will limit our discussion to

those two theories.

“Disparate treatment occurs where an employer has treated a particular

person less favorably than others because of a protected trait.”20 One way to

establish a claim of disparate treatment, is for a plaintiff to show that: (1) she is a

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

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

circumstances that could give rise to an inference of intentional discrimination.21

Discrimination also occurs where an employee is subjected to severe and

pervasive harassment in the workplace due to a protected characteristic. This is

called a “hostile work environment.” To prevail on a hostile work environment

claim, a plaintiff must show that: (1) she suffered intentional discrimination

because of his or her protected class; (2) the discrimination was severe or

18 Connelly v. Lane Const. Corp, 809 F.3d 780, 788 (3d Cir. 2016).

19 Id. (internal quotation marks omitted) (quoting Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).

20 N.A.A.C.P. v. North Hudson Regional Fire & Rescue, 665 F.3d 464, 482

n.11 (3d Cir. 2011) (cleaned up).

21 Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).

pervasive; (3) the discrimination detrimentally affected the plaintiff; (4) the

discrimination would have detrimentally affected a reasonable person in like

circumstances; and (5) respondeat superior liability exists.22

In addition to prohibiting discrimination, Title VII also prohibits retaliation

against employees who oppose employment practices that Title VII makes

unlawful.23 To prevail on a retaliation claim, a plaintiff must show that: (1) she

engaged in activity protected by Title VII; (2) the employer took adverse

employment action against her; and (3) there was a causal connection between her

participation in the protected activity and the adverse employment action.24

C. ADMINISTRATIVE EXHAUSTION OF TITLE VII CLAIMS

To pursue a claim under Title VII, a plaintiff must first exhaust

administrative remedies. To exhaust administrative remedies under Title VII, a

plaintiff must file an administrative charge with the Equal Employment

Opportunity Commission (“EEOC”) within 300 days of the alleged act of

discrimination, or within thirty days after receiving notice that the state or local

agency terminated its proceedings (whichever is earlier).25 The EEOC will then

investigate the charge and the plaintiff must wait until the EEOC issues a right to

22 Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).

23 42 U.S.C. § 2000e-3.

24 Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006).

25 42 U.S.C. § 2000e-5(e)(1).

sue letter before initiating a private action in the appropriate district court.26

Furthermore, “the scope of a resulting civil action in the district court is defined by

the scope of the EEOC investigation which can reasonably be expected to grow out

of the charge of discrimination.”27

IV. DISCUSSION

Having reviewed the relevant legal standards, we will now apply them to

Defendant’s arguments. We will begin by discussing what claims Plaintiff intended

to assert in her Second Amended Complaint. We will then address the arguments

relevant to those claims.

A. CLAIMS ALLEGED IN PLAINTIFF’S SECOND AMENDED COMPLAINT

Plaintiff’s Second Amended Complaint does not include a caption and does

not clearly identify her legal causes of action or any named defendant. As

Defendant notes in its brief, the Second Amended Complaint “meanders from one

grievance to the next” in a disorganized fashion. (Doc. 35, p. 6). Her claims are set

forth under the following headings: discrimination, gross negligence, harassment,

disparate treatment, and wrongful termination. However, these labels are not

especially useful in deciphering Plaintiff’s pleading.

Plaintiff’s former employer, the Starbucks York Roasting Plant, generously

construes Plaintiff’s Second Amended Complaint as alleging claims against it. We

26 Barzanty v. Verizon Pa., Inc., 361 F. App’x 411, 414 (3d Cir. 2010).

27 Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966 (3d Cir. 1978).

agree with this interpretation of Plaintiff’s Second Amended Complaint and

construe it as naming the Starbucks York Roasting Plant as the only Defendant.

Regarding the legal claims asserted, we take note that Plaintiff is proceeding

without an attorney in this case, and therefore her pleadings:

must be held to “less stringent standards than formal pleadings drafted

by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court

can reasonably read pleadings to state a valid claim on which the

litigant could prevail, it should do so despite failure to cite proper

legal authority, confusion of legal theories, poor syntax and sentence

construction, or the litigant’s unfamiliarity with pleading

requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel.

Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A

“petition prepared by a prisoner . . . may be inartfully drawn and

should . . . be read ‘with a measure of tolerance’”); Freeman v.

Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our

liberal pleading rules, a district court should construe all allegations in

a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83

(3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver,

82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6)

standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d

Cir. 1990) (same).

However, there are limits to the court’s procedural flexibility: “pro se

litigants still must allege sufficient facts in their complaints to support

a claim . . . they cannot flout procedural rules — they must abide by

the same rules that apply to all other litigants.” Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted).28

Overlooking the confusion regarding the labels Plaintiff uses for her claims,

we construe the Second Amended Complaint as asserting claims under Title VII

28 Graham v. Pennsylvania Dep’t of Corr., No. 21-148, 2022 WL 2874724

at *4 (W.D. Pa. Mar. 21, 2022), report and recommendation adopted, 2022 WL

2871331 (W.D. Pa. July 21, 2022).

only.29 Accordingly, we find that Plaintiff asserts the following legal claims in her

Second Amended Complaint:

(1) Title VII Disparate Treatment: Andrew Sutton’s disregard for

Plaintiff’s privacy by leaving Plaintiff’s timesheet unattended in

“various locations” throughout the plant and by transmitting

Plaintiff’s private ZIP card to a co-worker.

(2) Title VII Disparate Treatment: Andrew Sutton’s failure to follow the

company policy requiring that all employees sign a paper each week

acknowledging that they received a copy of their timesheet to review.

(3) Title VII Disparate Treatment: incorrect adjustments made to

Plaintiff’s timesheet on or around November 11, 2020 and January 11,

2021.

(4) Title VII Hostile Work Environment: incidents with two employees—

Julie Ruppert and Chris Roupas.

(5) Title VII Retaliation: Plaintiff’s May 2022 termination after making

multiple reports about Andrew Sutton’s conduct.

We will begin our analysis by addressing Plaintiff’s disparate treatment

claims together, then will address her hostile work environment claim and

retaliatory termination claim. Last, we will discuss whether Plaintiff should be

granted leave to file a third amended complaint.

29 Defendant generously read Plaintiff’s second amended complaint as

asserting claims of negligence and wrongful discharge. (Doc. 35, p. 6). In her brief

in opposition, however, Plaintiff only discusses Title VII. (Doc. 37). Given

Plaintiff’s response, we construe the allegations in the negligence and wrongful

discharge sections of the Second Amended Complaint as claims brought under

Title VII that were simply mislabeled due to this pro se litigant’s unintentional

conflation of two separate legal theories.

B. PLAINTIFF’S DISPARATE TREATMENT CLAIMS WILL BE DISMISSED

Throughout her Second Amended Complaint, Plaintiff alleges disparate

treatment claims based on Mr. Sutton’s disregard for Plaintiff’s privacy, Mr.

Sutton’s failure to follow a company timekeeping policy prior to December 2020,

and unexplained (but corrected) adjustments made to her timesheets. Defendant

argues that the allegations do not make out a plausible disparate treatment claim

because these incidents do not rise to the level of “adverse employment action” and

even if they did Plaintiff does not allege enough facts to suggest these actions were

taken because of Plaintiff’s race. These arguments are persuasive.

Once again, disparate treatment occurs where one employee is treated less

favorably than others because of a protected characteristic. Plaintiff suggests she

was treated poorly because she was the only African American Inventory Control

Specialist. To be actionable under Title VII, that conduct must result in adverse

employment action. To be adverse, the employment action must be “serious and

tangible enough to alter an employee’s compensation, terms, conditions, or

privileges of employment.”30

Plaintiff was uncomfortable that Mr. Sutton left timesheets out and felt

singled out when Mr. Sutton made a comment that Plaintiff was demanding special

treatment. Plaintiff was frustrated when Mr. Sutton announced a “new policy”

30 Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015)

(quoting Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)).

requiring signatures to verify the accuracy of timesheets, when in fact he was

simply complying with a longstanding policy previously ignored. These

allegations, however, do not amount to a plausible disparate treatment claim.

Although Plaintiff allegations suggest this conduct made her frustrated and

uncomfortable, she does not allege that any of Mr. Sutton’s conduct in this regard

materially altered the terms, conditions, or privileges of her employment. Although

the time reporting mistakes may have initially altered Plaintiff’s compensation,

Plaintiff suggests those errors were corrected. As such, we are not persuaded that

the events Plaintiff sets out in her Second Amended Complaint amount to adverse

employment action for the purposes of Title VII. As such, all of Plaintiff’s

disparate treatment claims will be dismissed.

C. PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIMS WILL BE

DISMISSED

Plaintiff alleges that she was harassed by two co-workers, with one

harassing incident per co-worker. The first incident occurred on June 14, 2021, and

involved a disagreement between Plaintiff and another employee about which

employee should be responsible for running a daily “past pull” report. The second

incident occurred on July 3, 2021, when a male employee followed and

“micromanaged” her. Defendant argues that Plaintiff does not allege enough facts

to show she was subjected to hostility because of her race, and that the two

incidents are not severe or pervasive enough to sustain a plausible hostile work

environment claim. (Doc. 35, p. 22). Plaintiff does not meaningfully respond to

this argument.

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 even[] 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).

“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)).31

We agree with Defendant that Plaintiff does not allege facts to adequately

support that the incidents forming the basis of her hostile work environment claim

were related to her race. We also agree that these two incidents are neither severe

nor pervasive. Plaintiff describes only two unrelated incidents perpetrated by

separate individuals. Thus, the harassment she describes is not pervasive.

Moreover, the incidents she describes are not severe. In the first incident, involving

Ms. Ruppert, Plaintiff describes that she and a co-worker disagreed about who was

responsible for a task, after they exchanged messages through Microsoft Teams,

the co-worker tapped Plaintiff on the shoulder to gain her attention and discuss the

issue in person. Plaintiff does not allege facts that suggest this incident altered the

terms or conditions of her employment in any way. In the second incident,

involving Mr. Roupas, Plaintiff appears to object to being micromanaged and

objects to being referred to as a “little girl.” This one-time offhand comment, and

one instance of Mr. Roupas “micromanaging” Plaintiff is also not severe. Plaintiff

does not allege facts that suggest this incident altered the terms or conditions of her

31 Trevizo v. Del Toro, No. 1:23-CV-00508, 2024 WL 1195522, at *5-6

(M.D. Pa. Mar. 20, 2024).

employment in any way. Accordingly, Plaintiff’s hostile work environment claims

will be dismissed.32

D. PLAINTIFF’S RETALIATORY TERMINATION CLAIM WAS NOT

EXHAUSTED

Plaintiff initiated this action on November 1, 2021. (Doc. 1). Plaintiff was

terminated approximately six months after she filed this case.

In her Second Amended Complaint, Plaintiff asserts a Title VII claim related

to her May 2022 termination. Plaintiff alleges that “she was in contact with the

EEOC and was provided with a Notice of a Right to Sue.” (Doc. 31, p. 1)

(emphasis added). The exhibits incorporated by reference include a copy of one

right to sue letter, issued to Plaintiff on September 14, 2021. (Doc. 20-1, p. 7). That

right to sue letter concerns EEOC Charge No. 530-2021-02634. Id. Plaintiff also

alleges that she was “fired on May 13, 2022.” (Doc. 31, p. 1). The Court may

reasonably infer that the EEOC Charge No. 530-2021-02634 was filed before

September 14, 2021 (the date the right to sue letter was issued).

32 We are mindful that courts in the Third Circuit have shown a reluctance to

dismiss a complaint at the 12(b)(6) stage when the primary challenge to a hostile

work environment claim is whether the conduct in question is severe or pervasive.

Trevizo, 2024 WL 1195522, at *7; Fedder v. Bloomsburg Univ. of Pa., No. 4:23-

CV-1678, 2024 WL 580552, at *3 (M.D. Pa. Feb. 13, 2024). Nonetheless, hostile

work environment claims are properly dismissed at the 12(b)(6) stage when the

pleading fails to plausibly allege any facts from which it can be inferred that a

plaintiff was subject to severe or pervasive harassment. Trevizo, 2024 WL

1195522, at *7 (collecting cases).

Defendant argues that, based on this timeline, there is no possibility that

Plaintiff’s May 2022 termination could have been within the scope of the EEOC’s

investigation of Charge No. 530-2021-02634, because the investigation concluded

more than six months before Plaintiff was terminated. We agree. Based on the facts

alleged in this case, it is not plausible that Plaintiff could have administratively

exhausted claims related to the termination of her employment before that

termination occurred. Therefore, we are compelled to conclude that, although

Plaintiff may have exhausted some of her claims when she filed EEOC Charge No.

530-2021-02634, she did not exhaust any Title VII claim related to the May 2022

termination itself. Absent exhaustion, Plaintiff’s Title VII claims concerning her

May 2022 termination cannot proceed in federal court.

Accordingly, all Title VII claims concerning the termination in May 2022

will be dismissed.

E. PLAINTIFF WILL NOT BE GRANTED LEAVE TO AMEND

Last, Defendant argues that Plaintiff should not be granted leave to amend.

We agree. If a complaint is subject to dismissal for failure to state a claim, “a

district court must permit a curative amendment unless such an amendment would

be inequitable or futile.”33 In this case, Plaintiff has had two opportunities to

33 Phillips, 515 F.3d at 245.

submit a curative amendment but has not yet set forth a plausible claim. Therefore,

we find that permitting further amendment would be futile in this case.34

V. CONCLUSION

Accordingly, we conclude that Defendant’s Motion to Dismiss (Doc. 34)

will be GRANTED as follows:

(1) Plaintiff’s Title VII disparate treatment and retaliation claims will be

DISMISSED without leave to amend.

(2) Plaintiff’s Title VII retaliatory termination claim will be DISMISSED

without leave to amend, but without prejudice to refile as a separate

action in the event Plaintiff properly exhausts her administrative

remedies.

(3) An appropriate order will be issued.

Date: June 28, 2024 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

34 Plaintiff does not allege whether she has attempted to separately exhaust

her retaliatory termination claim with the EEOC. It appears she may be out of time.

However, to the extent Plaintiff has separately exhausted her retaliatory

termination claim, the dismissal is without leave to amend, but without prejudice to

initiating a new civil action once it is properly exhausted.