POTEAT v. CP DEVELOPMENT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

OCTAVIA POTEAT,

Plaintiff, Civil Action No. 2:24-cv-482

V. Hon. William S. Stickman IV

CP DEVELOPMENT doing business as

REGENT SQUARE RENTALS and JAMES

POLINSKY,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiff Octavia Poteat (“Poteat’”) brings this action against her former employer under

42 U.S.C. § 1981, which protects racial minorities from discrimination in the workplace.

Defendants CP Development d/b/a Regent Square Rentals (““RSR”) and James Polinsky

(“Polinsky”) (collectively, “Defendants”) filed a motion to dismiss Poteat’s amended complaint

(“Amended Complaint”). (ECF No. 9). For the following reasons, the Court will grant

Defendants’ motion. It will deny Poteat’s motion to file a second amended complaint. (ECF No.

19).

I. STANDARD OF REVIEW

A motion to dismiss filed under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests

the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (d Cir. 1993). A

plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief plausible on

its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). A court must accept all well-pleaded factual allegations as true and

view them in the light most favorable to a plaintiff. See Doe v. Princeton Univ., 30 F.4th 335,

340 (3d Cir. 2022); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 Gd Cir. 2009).

Although a court must accept the allegations in the complaint as true, it is “not compelled to

accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a

factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).

The “plausibility” standard required for a complaint to survive a motion to dismiss is not

akin to a “probability” requirement but asks for more than sheer “possibility.” Jgbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is

present when a plaintiff pleads factual content that allows the court to draw the reasonable

inference that a defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678. Even if

the complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not

entitle a plaintiff to relief. Jd at 682. The complaint must support the inference with facts to

plausibly justify that inferential leap. Jd.

With respect to certain employment discrimination claims, a plaintiff need not plead the

prima facie elements to survive a motion to dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S.

506, 511 (2002) (explaining that “under a notice pleading system, it is not appropriate to require

a plaintiff to plead facts establishing a prima facie case” of employment discrimination as a

prima facie case is an evidentiary standard, not a pleading requirement.). Rather, these claims

require “facial plausibility,” meaning that the allegations must state “enough facts to raise a

reasonable expectation that discovery will reveal evidence of [the claim’s] necessary

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

see also Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021) (“The complaint

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

evidence of [each] necessary element.’” (citation omitted)).

Il. FACTUAL BACKGROUND

RSR is a property management company that manages apartments in the Regent Square

and Wilkinsburg areas of Pittsburgh, Pennsylvania. On April 22, 2023, Poteat, an African

American woman of Haitian nationality, began working for RSR as a property manager. (ECF

No. 7, p. 2).

A co-worker, Barbara Jacobs (“Jacobs”), made the following comments in the presence

of Poteat when they were the only employees in the office: (a) “that Hispanic people were

‘rude’”; (b) “that African Americans, in her opinion, were more likely to fraudulently fill out

apartment application documents”; (c) stating of “immigrants in our county,” “I don’t know

where they’re coming from, but they’re all coming over. You know, those Indians or Arabs,

whatever they are”; (d) dubbing Mexican women “fiery” and stating that “Mexicans are taking

over our jobs”; (e) “look at Denzel, isn’t he one of those beautiful black men?”; and (f) when

watching a true crime documentary about missing people of color, stating “that would never

happen in my neighborhood.” Cd. at 3). Poteat called her manager, Polinsky, and complained

about Jacobs’s comments on numerous occasions.

On May 11, 2023, Poteat emailed Polinsky and requested a meeting to discuss Jacobs’s

comments. (/d.). During the ensuing meeting, Polinsky revealed that Poteat was not the first

person to complain about Jacobs, and that six other employees had lodged complaints. Poteat

requested that Polinsky put her in contact with human resources. Polinsky said he would handle

the matter and speak with Jacobs. Poteat gave Polinsky a handwritten statement of her

complaints. Cd. at 4).

After Poteat’s discussions with Polinsky, Jacobs became “increasingly hostile” toward

Poteat, which prompted Poteat to lodge another complaint about Jacobs with Polinsky. Polinsky

told Poteat that Jacobs would no longer be allowed to speak to her. When Poteat requested to

speak to someone in human resources, Polinsky said he would have someone reach out to her.

(Id. at 4).

On July 8, 2023, Poteat texted Polinsky that Jacobs “was being aggressive and

demanding.” Polinsky called Poteat and told her to “hang in there.” (/d. at 4).

On September 28, 2023, Jacobs inserted herself into a discussion that Poteat was having

with Polinsky and Poteat’s supervisor, Heather Pool (“Pool”). Jacobs “began yelling at [ ] Poteat

to ‘just do what they tell you. If they are telling you to do something, it is for a reason.”” (/d. at

5). Poteat attempted to “speak up for herself,” and Polinsky told Poteat and Jacobs “that they

were both in the wrong.” After the incident, Poteat asked Polinsky to put her in touch with

human resources. (/d.).

On September 29, 2023, Poteat received a “final notice” from RSR “for her

performance.” Poteat claims she had “never received prior warnings for her performance.” On

October 29, 2023, Polinsky terminated Poteat’s employment for “being ‘late often.’” (d.). Her

termination came just days before she was to receive her signing bonus of $1,000.00. Cd. at 5-

6). According to Poteat, she had never been disciplined for tardiness and she arrived at the same

time as her coworkers every morning. (/d. at 5). Carly Roth (“Roth”), “a similarly situated

white employee, was frequently tardy and often arrived at work after [ | Poteat,” and Poteat

asserts that “Defendants never disciplined [ ] Roth for her tardiness.” (/d. at 6).

If. ANALYSIS

Section 1981 provides that:

All persons within the jurisdiction of the United States shall have the same right

in every State and Territory to make and enforce contracts ... and to the full and

equal benefit of all laws ... as is enjoyed by white citizens ...

42 U.S.C. § 1981(a). It prohibits racial discrimination and retaliation against those who have

opposed such discrimination. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445 (2008). To

state a § 1981 claim, a plaintiff must allege facts supporting an “intent to discriminate on the

basis of race by the defendant.” Brown v. Philip Morris, 250 F.3d 789, 797 (3d Cir. 2001).

Poteat must “initially plead and ultimately prove that, but for race, [she] would not have suffered

the loss of a legally protected right.” Comcast Corp. v. Nat’l Assoc. of African American-Owned

Media, 589 U.S. 327, 341 (2020). For the following reasons, the Court finds that Poteat has not

come forth with averments in her Amended Complaint so as to assert plausible prima facie

claims of a hostile work environment or retaliation under § 1981.1

'Tn the absence of direct evidence, § 1981 employment hostile work environment and retaliation

claims are analyzed under the three-step burden-shifting test laid out in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). First, the plaintiff must meet the initial burden of

establishing a prima facie case of the elements for her claim. Castleberry vy. STI Grp., 863 F.3d

259, 263 (3d Cir. 2017) (citing McDonnell Douglas, 411 U.S. at 802). If the plaintiff makes this

prima facie showing, the burden of production “‘shift[s] to the employer to articulate some

legitimate, nondiscriminatory reason’ for the adverse employment action.” Jd. (quoting

McDonnell Douglas, 411 U.S. at 803). “The employer need not prove that the tendered reason

actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden

of proving intentional discrimination always rests with the plaintiff.” Fuentes v. Perskie, 32 F.3d

759, 763 (3d Cir. 1994) (citing Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253, 254,

256 (1981) (emphasis in original)). The employer’s responsibility to make a showing on this

second prong is a “relatively light burden.” Jd. If the employer does so, the burden shifts back

to the plaintiff to establish “that the employer’s stated reason for the adverse action was an

excuse, or pretext, for why the action was actually taken.” Castleberry, 863 F.3d at 263 (citing

McDonnell Douglas, 411 U.S. at 804). A plaintiff may generally demonstrate pretext by offering

rebuttal evidence “from which a factfinder could reasonably either (1) disbelieve the employer’s

articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more

likely than not a motivating or determinative cause of the employer’s action.” Fuentes, 32 F.3d

A. Count I will be dismissed.

Poteat’s first claim under § 1981 alleges a hostile work environment on the basis of race.

A hostile work environment is one so “permeated with discriminatory intimidation, ridicule, and

insult” that it becomes “abusive.” Nat’! R.R. Passenger Corp v. Morgan, 536 U.S. 101, 116

(2002) (internal quotation marks omitted) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993)). To plead a § 1981 hostile work environment claim, Poteat must set forth sufficient

factual allegations that 1) she suffered intentional discrimination because of her race, 2) the

discrimination was severe or pervasive, 3) the discrimination detrimentally affected her, 4) the

discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the

existence of respondeat superior liability (meaning the employer is responsible). Castleberry,

863 F.3d at 264 (citations omitted). “The discriminatory conduct must be so extreme as to

amount to a change in the terms and conditions of employment. Unless they are extremely

severe, offhand comments and isolated incidents are insufficient to sustain a hostile work

environment claim.” Woodard v. PHB Die Casting, 255 F. App’x 608, 609 (3d Cir. 2007)

(citing Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005)). Several factors are to be

considered in analyzing a hostile work environment claim: “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.”

Harris, 510 U.S. at 23. This cause of action directs courts to “concentrate not on individual

incidents, but on the overall scenario.” Qin v. Vertex, Inc., 100 F.4th 458, 471 (3d Cir. 2024)

(quoting Caver, 420 F.3d at 262-63).

at 764 (citations omitted). But at the motion to dismiss stage, Poteat does not have to meet the

McDonnell Douglas standard.

Poteat alleges that she is African American and that Jacobs is Caucasian. This, standing

alone, is insufficient to state a § 1981 claim. Poteat further alleges that Jacobs made offensive

comments on a few occasions over the course of two months when she and Poteat were alone in

the workplace. Poteat has not pled that Jacobs used racially oriented language specifically

directed toward her, that Jacobs made racially insulting comments about her, that Jacobs taunted

her because of her race, or that Jacobs displayed racially offensive materials to her. Nota single

comment by Jacobs was about Poteat. Instead, Poteat pleads two instances of generalized

offensive comments by Jacobs — (1) that Denzel Washington is “one of those beautiful black

men” and (2) that there were a lot of immigrants from all over — “those Indians or Arabs,

whatever they are.” The other offensive comments that Jacobs allegedly made were (1) that

Hispanic people were “rude,” (2) that African Americans fraudulently filled out apartment

application documents, (3) that Mexican women are “fiery,” and (4) stating while watching a

documentary about missing people of color “that would never happen in my neighborhood.”

(ECF No. 7, pp. 2-3). Viewing these comments in the light most favorable to Poteat, the Court

finds that the only possibly racially discriminatory actionable comments were those about ethnic

characteristics of African Americans — i.e., the comments about Denzel Washington, African

Americans filling out fraudulent apartment applications, and crime not happening in certain

neighborhoods.

Jacobs’s comments about national origin are not covered by § 1981.7 See St. Francis

Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). Additionally, as Defendants accurately note of

the allegedly “aggressive and demanding” conduct of Jacobs in July 2023, and the verbal

altercation between Poteat and Jacobs on September 28, 2023, “[rjude behavior and

? Furthermore, nothing pled in the Amended Complaint indicates that Poteat, or RSR, had any

knowledge that Poteat was of Haitian nationality.

disagreement ... do not meet the requirements to show a hostile work environment.” (ECF No.

10, p. 8) (citation to authorities omitted). Even if Jacobs could be characterized as generally

disagreeable in the workplace, her rude behavior and one-time disagreement with Poteat in front

of their managers do not meet the requirements to show a hostile work environment. “[T]he

vicissitudes of everyday life in the workplace do not rise to the level of a hostile work

environment; something more is required.” Williams v. Pennsylvania Hum. Rel. Comm’n, Civil

Action No. 14-1290, 2016 WL 6834612, *24 (W.D. Pa. Nov. 21, 2016).

What Poteat has pled are offhanded comments and sporadic racially offensive comments

by Jacobs that occurred over the course of Poteat’s first two months of employment. But

“(i]solated incidents and offhanded comments .. . are not sufficient to sustain a hostile work

environment claim.” Stucke v. City of Phila., 685 F. App’x 150, 153 (3d Cir. 2017) Gnternal

quotation marks and citation omitted). As pled, Poteat’s workplace was not permeated with

intimidation, ridicule, and insult. Jacobs’s utterance of racial comments on a few occasions over

the course of two months, which engendered offensive feelings in Poteat (who was a new

employee), did not sufficiently affect (and alter) the conditions of Poteat’s employment so as to

implicate § 1981. Poteat had to come forth with more than a few isolated incidents of racial

enmity. There is no evidence that anyone ever referred to Poteat using racial slurs. The

statements of Jacobs which she considered offensive were not physically threatening or

humiliating. Poteat did not face any sort of targeted, derogatory comments over a lengthy period

of time, such that it affected her work performance. The conduct which Poteat describes 1s not

sufficiently frequent, severe, or pervasive enough, as a matter of law, to rise to the level of a

hostile work environment. See Sherrod y. Phila. Gas Works, 57 F. App’x 68, 75-77 (3d Cir.

2003) (finding insufficient evidence to establish a hostile work environment despite incidents

involving a manager referring to the alleged “culture” of African-American employees,

indicating that he was “going to sit at their desks with a whip”; locating African-American

employees’ desks directly in front of their white supervisor's office window; excluding plaintiff

from a meeting despite plaintiffs presentation being on the agenda; “snubbing” plaintiff with a

turned back; and the management team screaming at and treating plaintiff badly). Finally, even

if the conduct described had a detrimental effect on Poteat’s mental health, the incidents would

not have detrimentally affected a reasonable person in her position. Accordingly, the incidents

pled are insufficient to create a racially hostile work environment as a matter of law. Count I

will be dismissed with prejudice.

B. Count I will be dismissed.

The United States Court of Appeals for the Third Circuit instructs that “[iJn a retaliation

case a plaintiff must demonstrate that there had been an underlying section 1981 violation.” Est.

of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010) (citing CBOCS West,

Inc. v. Humphries, 553 U.S. 442, 451-53 (2008)). In doing so, a plaintiff “must have acted

under a good faith, reasonable belief that a violation existed.” Daniels v. Sch. Dist. of Phila., 776

F.3d 181, 193 (3d Cir. 2015) (quotations omitted). Thus, in this circuit, a § 1981 retaliation

claim is not viable without an underlying § 1981 discrimination claim. Here, the Amended

Complaint does not contain a separate claim for racial discrimination. As noted in the previous

section, Poteat has not proffered sufficient allegations to establish an underlying § 1981 hostile

work environment violation. Thus, as her Amended Complaint fails to allege facts to support the

requirement of an underlying § 1981 violation, her associated claim of retaliation is foreclosed.

Even if the Amended Complaint alleged facts to support an underlying § 1981 violation,

it is devoid of facts establishing a plausible prima facie retaliation claim. Poteat’s allegations are

too vague. For a successful prima facie retaliation claim, Poteat must establish that: (1) she

engaged in protected activity; (2) her employer took an adverse employment action against her;

and (3) there was a causal connection between her participation in the protected activity and the

adverse employment action. Castleberry, 863 F.3d at 267.

“To engage in ‘protected activity’ a plaintiff cannot complain about merely unfair

treatment, rather they must complain about discrimination based on membership in a protected

class.” McClain v. Avis Rent A Car Sys., Inc., 648 F. App’x 218, 224 (3d Cir. 2016) (citation

omitted). Poteat states that her protected activity was that of “reporting racially discriminatory

comments by Barbara to Mr. Polinsky.” (ECF No. 7, p. 9). Her allegations are devoid of a

single instance where she complained to Polinsky about any discriminatory comments regarding

her race. As pled, none of Poteat’s complaints to Polinsky explicitly or implicitly communicated

a complaint about racial discrimination against her in the workplace. Complaints about “minor

and isolated” workplace behavior that could not “remotely be considered extremely serious” is

not protected activity under § 1981. Kengerski v. Harper, 6 F. 4th 531, 537 (3d Cir. 2021)

(quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001)). Informal complaints

must allege discrimination based on a protected category. See Daniels, 776 F.3d at 193; see also

McClain, 648 F. App’x at 224 (“To engage in ‘protected activity’ a plaintiff cannot complain

about merely unfair treatment, rather they must complain about discrimination based on

membership in a protected class.” (citing Barber v. CSX Distribution Servs., 68 F.3d 694, 701-02

(3d Cir. 1995)).

Additionally, the Amended Complaint does not set forth a causal link between Poteat’s

complaints about Jacobs and being firing. While a plaintiff eventually must “prove that

retaliatory animus was the ‘but-for’ cause of the adverse employment action,” in proving the

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prima facie case, she merely “must produce evidence ‘sufficient to raise the inference that her

protected activity was the likely reason for the adverse [employment] action.’” Carvalho-

Grevious v. Delaware State Univ., 851 F.3d 249, 258-59 (3d Cir. 2017) (quotation omitted). The

“temporal proximity” between the protected activity and adverse employment action can be

“unusually suggestive” evidence of causation. Moody v. Atlantic City Bd. of Educ., 870 F.3d

206, 221 (3d Cir. 2017) (quotation omitted); see also Farrell v. Planters Lifesavers Co., 206 F.3d

271, 279-80 (3d Cir. 2000). Alternately, a plaintiff can prove causation by showing “a pattern of

antagonism coupled with timing” suggestive of retaliation. Lauren W. ex rel. Jean W. vy.

DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). These are not the only means available to the

plaintiff, as causation is “gleaned from the record as a whole.” Farrell, 206 F.3d at 281.

‘The Court finds temporal proximity lacking between Poteat’s protected activity and her

firing. She complained about Jacobs’s comments between April 22, 2023 and May 11, 2023.

(ECF No. 7, pp. 2-4). RSR fired Poteat on October 2, 2023. (Ud. at 7). The five month gap

between the protected activity and adverse employment action causes the inference to

“dissipate.” See Moody, 870 F.3d at 221 (“an inference of ‘unduly suggestive’ temporal

proximity begins to dissipate where there is a gap of three months or more between the protected

activity and the adverse action.” (citing LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d

217, 233 (3d Cir. 2007)). Furthermore, nothing alleged demonstrates a pattern of antagonism.

No coworkers, including Jacobs, or managers made any remarks to or mistreated Poteat because

she complained about Jacobs’s statements. There are no allegations that Poteat was treated

differently because of her complaints. Her duties remained the same and there are no allegations

that she was assigned more responsibilities or received unfavorable performance reviews. In

sum, Poteat has proffered insufficient evidence to establish a causal connection.

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Count II will be dismissed with prejudice.

C. Further amendment is futile. .

Poteat has already amended her complaint once. On November 18, 2024, more than

three months after briefing concluded on August 1, 2024, and the motion to dismiss was under

advisement with the Court, Poteat filed a Motion for Leave to Modify Schedule and File

Plaintiff's Amended Complaint. (ECF No. 19). She now wishes to add hostile work

environment and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seg. On August 23, 2024, the Equal Employment Opportunity Commission issued a

Notice of Right to Sue as to Poteat’s Title VII claims. Poteat fails to explain why she waited

more than three months to request leave to amend. Nevertheless, the Court has examined her

proposed Second Amended Complaint in Civil Action (ECF No. 19-1), and finds that the factual

allegations set forth in paragraphs 6 through 38 remain the same as those set forth in the

Amended Complaint. (ECF No. 7, pp. 2-5). It will deny her leave to amend as it finds

amendment would be futile. See 3 James Wm. Moore et al., Moore’s Federal Practice { 15.15

(3d ed. 2024) (‘An amendment is futile if it merely restates the same facts as the original

complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a

legal theory, or could not withstand a motion to dismiss.”). In employment discrimination cases,

1981 claims are subject to the same analysis as discrimination claims under Title VIL. Brown v.

J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009); see also Castleberry, 863 F.3d at 263. The

Third Circuit has stated, “the ADA, ADEA and Title VII all serve the same purpose—to prohibit

discrimination in employment against members of certain classes. Therefore, it follows that the

methods and manner of proof under one statute should inform the standards under the others as

well.” Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995). The proposed claims

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Poteat wishes to bring under Title VII (ECF No. 19-1, pp. 11-14) fail for the reasons already set

forth herein. Leave to amend will be denied.

TV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss will be granted. Poteat’s

motion for leave to file a second amended complaint will be denied. Orders of Court will follow.

BY THE COURT:

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WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

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