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 TORRO, :

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 second motion to dismiss and/or for summary judgment.

For the reasons discussed below, we will grant the defendant’s motion to dismiss

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

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. Doc. 1. In the

complaint, Trevizo brought two counts, claiming that the Department of the Navy

discriminated against her and created a hostile work environment through severe

and pervasive harassment on account of her gender, ethnicity, and color in

violation of Title VII. After the defendant entered his appearance (docs. 4, 5), and

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

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

The defendant then filed a motion to dismiss and/or for summary judgment (doc.

11), and a brief in support of that motion. Doc. 19. Trevizo filed a brief in

opposition to this motion. Doc. 33. And the defendant filed a reply brief. Doc. 38.

We granted this motion to dismiss. Docs. 39, 40. We dismissed Trevizo’s

discrimination claim because her opposition papers denied she was bringing such a

claim, despite the complaint listing Title VII discrimination as Count I. Docs. 1,

39, 40. We dismissed Count II, the hostile-work-environment claim, because

Trevizo did not allege facts supporting a reasonable inference that she was subject

to severe or pervasive discrimination, with the memorandum opinion noting

examples of specific deficiencies in the complaint. Doc. 39, 40. Our dismissal

was, however, without prejudice and we granted leave to amend. Doc. 40.

As a result, Trevizo filed an amended complaint against the defendant, now

alleging a single Title VII hostile-work-environment claim. Doc. 41. The

defendant filed the presently pending motion to dismiss and/or for summary

judgment (doc. 43) and a brief in support (doc. 49). After Trevizo filed a brief in

opposition (doc. 69), the defendant filed a reply brief (doc. 76). Trevizo alleges

the following facts in her amended complaint.

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

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

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

Supervisory Logistics Management Specialist. Doc. 41 ¶¶ 3, 9-10. Catherine

Butler was Trevizo’s first-level supervisor. Id. ¶ 11. Beginning in 2019, Captain

Arcangelo Dell’Anno became Trevizo’s second-level supervisor and Butler’s first-

level supervisor. Id. ¶ 12.

Trevizo alleges that she was subject to a “hostile and abusive work

environment” that “was created by pervasive and continuous discriminatory

actions” by Butler, who “continuously and increasingly treated” her “significantly

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:

• In 2017, Ms. Butler refused to permit Ms. Trevizo to move her

ergonomically fitted office furniture with her when she was moved to

another office, which was provided to her as an accommodation after

an ergonomic study was performed for Ms. Trevizo, forcing Ms.

Trevizo to work at a desk that was not accommodating to her physical

needs, as was established as necessary through the study;

• In 2017, 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;

• In 2018, [w]hile Ms. Trevizo was on maternity leave, Ms. Butler

stated to Jeremy Hilliker, a white male and subordinate to Ms.

Trevizo, that[] “it is so much nicer having you attend the meetings,

you are so much more agreeable,” while Mr. Hilliker was the acting

division head in place of Ms. Trevizo, which was degrading toward

Ms. Trevizo and inhibit[ed] the trust and loyalty that Ms. Trevizo had

worked diligently to instill with the members of her team;

• In 2019, when Ms. Trevizo’s husband applied for a Logistics

Management Specialist position in the department managed by Keith

Rhodes, a lateral department to Ms. Trevizo’s department, Ms. Butler

advised Mr. Rhodes to refrain from interviewing Ms. Trevizo’s

husband for the position, despite other married couples working in

similar departments and those relationships not being an issue;

• In 2019, Ms. Trevizo’s request to hire a transferring employee from

WSS as a developmental hire, something that [] had been done many

times in the past because of the specialized work, 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, as well as a

subsequent request by Mr. Rhodes, that same year, without any

pushback or additional steps inserted into the process;

• In 2020, Ms. Trevizo received a standup desk that she was approved

for in 2019, however, the motor did not work, and despite notice to

Ms. Butler, Ms. Butler refused and/or failed to have the motor

repaired, thus eliminating any benefit that could have been

appreciated by Ms. Trevizo;

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

more harshly 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,

including but not limited to, the revisions of the NAVSUP P-724, the

Non-Combat Expenditure Allowance Naval Message, [and] the

Annual Price Update.

• The increased scrutiny[] was not supported by the Naval Style Guide,

and differed from one submission to the next, such that when a format

was adjusted, by the next submission, the adjusted format was

questioned;

• The increased scrutiny and hostile environment created by Ms. Butler

and aimed an [sic] Ms. Trevizo became so pervasive that one of Ms.

Trevizo’s staff members, Mark Emory, sought another position to get

away from the hostility;

• Ms. Butler denied approval of developmental training for Ms. Trevizo

on multiple occasions that would have assisted her in her promotional

prospects within her career, even inserting herself to deny some

training opportunities that did not require supervisor approval and

trying to accuse her of not following approval procedures, when Ms.

Butler had previously approved the training in question;

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

Trevizo to Ms. Copp, as though they were aggressive or overstepping

her authority, despite Ms. Treviso [sic] just trying to relay the

formatting concerns that she was trying to navigate with Ms. Butler to

avoid being further criticized for allegedly inferior work product;

• Ms. Butler used one instance of a misinterpreted September 23, 2020

e-mail between Ms. Treviso [sic] and Ms. Cobb to justify adverse

actions toward Ms. Trevizo on four separate occasions, without any

opportunity to modify the alleged behavior by: blindsiding her with an

investigatory meeting on September 24, 2020, without providing her

an opportunity for representation; giving her an unsatisfactory rating

in her mid-year review; denying a request for developmental training

on October 8, 2020; suggesting a three-day suspension on October 27,

2020; and giving her an unacceptable rating in her FY20 review on

February 18, 2021, despite receiving notices prior to this of

improvement from the alleged concern;

• Ms. Butler would criticize Ms. Treviso [sic] by emails that copied her

colleagues and employees that she supervised, such that they were

degrading and diminished the trust and loyalty that she had worked

diligently to instill with the members of her team.

Id.

Trevizo alleges Captain Dell’Anno failed or refused to correct Butler’s

actions, and instead “became a participant in the actions” that caused the hostile

work environment. Id. ¶ 14. Trevizo lists a number of actions by Captain

Dell’Anno, “including, but not limited to:”

• Captain Dell’Anno failed and/or refused to correct Ms. Butler’s use of

one misinterpreted e-mail as the basis for three separate adverse

actions toward Ms. Trevizo;

• Captain Dell’Anno failed and/or refused to correct Ms. Butler’s

improper denials of developmental training opportunities for Ms.

Trevizo;

• It is believed and therefor [sic] averred that Captain Dell’Anno

improperly altered the course of hiring for a position that Ms. Trevizo

was qualified for and had applied for, in order make it more difficult

for Ms. Trevizo to be selected for the position; and

• It is believed and therefore averred that Captain Dell’Anno

improperly delayed upgrading the classification status of Ms.

Treviso’s [sic] position until after she left the position, despite

requesting Ms. Treviso [sic] to provide revised job descriptions for

her department for this purpose, and then improperly upgraded the

white male replacement to a higher grade in violation of the time in

grade requirements.

Id. Trevizo asserts her belief that “gender, ethnicity, and/or color, were motivating

factors in the circumstances, actions and omissions that created the hostile and

abusive work environment[.]” Id. ¶ 16.

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, she filed her formal complaint with the EEO. Id. ¶¶ 17-18. A private

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

subsequently issued a decision and order granting summary judgment. Id. ¶¶ 19-

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

¶ 21.

Trevizo’s amended complaint contains a single count labeled “Harassment

in Violation of Title VII of the Civil Rights Act of 1964.” Id. at 11. Trevizo

alleges that the defendant “continuously harassed [her] because of her gender,

ethnicity and/or color, by engaging in a course of conduct, including but not

limited to, the acts and omissions set forth above, thus creating a hostile and

abusive work environment.” Id. ¶ 28. She alleges that the harassing conduct 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. ¶¶ 29, 30. The defendant “knew or should have known of the

1 As in the original complaint, Trevizo does not explicitly allege, though it is

implied by the fact she filed this action, that summary judgment was against her

and in favor of the defendant.

harassment but failed to take prompt remedial action to address the

circumstances.” Id. ¶ 31. Further, Trevizo’s “gender, ethnicity and/or color, were

motivating factors” in the defendant’s “decision to treat [her] in a harassing

manner.” Id. ¶ 32. 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. ¶ 33.

Trevizo seeks compensatory damages, “[i]njunctive relief, equitable relief,

affirmative relief, accrual of back pay,” attorney’s fees, costs, and interest. Id. at 13

(Wherefore Clause).

III. Pleading and Motion-to-Dismiss Standards.

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

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

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

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

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

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

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

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

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

documents.” Id. at 230.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

entails a three-step analysis:

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

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

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

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

there are well-pleaded factual allegations, a court should

assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief.”

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

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

IV. 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). Here, Trevizo

alleges a hostile-work-environment claim. Doc. 41 at 11; 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

create an abusive working environment violates Title VII”) (internal quotation

marks and citation omitted)).

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 argues that the amended complaint suffers from the same

deficiencies as the original complaint, that is, Trevizo fails to allege facts

supporting a reasonable inference that she was subject to severe or pervasive

discrimination. Because the amended complaint does not materially alter the

allegations from the original complaint, we agree and will dismiss.

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 it 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)).

At the outset, we note that in dismissing Trevizo’s original complaint, we

provided specific deficiencies that stood as obstacles to proceeding with her

hostile-work-environment claim, including that the alleged conduct by Butler

appeared to be “vague and episodic” and Trevizo did not address how each

incident affected her work environment. Doc. 39 at 18-19. The allegations in the

amended complaint either do not address the deficiencies at all or present only

superficial amendments such that they still do not support a reasonable inference

that Trevizo was subject to severe or pervasive discrimination.

For example, Trevizo alleges that her husband applied for a position in a

lateral division with the Department of the Navy, but Butler advised the division

manager Keith Rhodes “to refrain from interviewing” Trevizo’s husband. Doc. 41

¶ 13. As in the original complaint, the amended complaint fails to allege whether

Rhodes actually refrained from interviewing Trevizo’s husband or whether he was

hired for the position, and how this affected her work environment on account of

her gender, ethnicity, or color.

Trevizo again alleges that she attempted to make a “developmental hire.”

Doc. 41 ¶ 13. But she received significant pushback and had to jump through

additional hurdles. Id. She again does not specify what the pushback was, what the

hurdles were, or whether the developmental hire was ultimately made.

Trevizo alleges that Butler scrutinized the work product produced by

Trevizo’s division more harshly than when it was under the management of a white

male. Doc. 41 ¶ 13. She does not, however, allege how frequently this occurred,

instead giving one example of a project that was allegedly scrutinized more harshly

based on formatting.

She alleges that Captain Dell’Anno altered the course of hiring to make it

more difficult for Trevizo to be selected for a position and delayed the upgrading

of a position until after Trevizo left and was replaced by a white male. Doc. 41 ¶

14. Neither allegation includes a general time period that this occurred, or how it

is connected to the allegations against Butler.

Our memorandum opinion stated that the complaint did not “allege when

any of th[e] alleged actions or inactions by Butler took place or how they were

connected.” Doc. 39 at 17. Trevizo’s amended complaint does attempt to remedy

this somewhat, by providing years or dates to the allegations, but this does not

salvage it. Trevizo also alleges that Butler “used one instance of a misinterpreted .

. . email” from September 23, 2020, to justify adverse actions against her,

including subjecting Trevizo to an investigatory meeting on September 24, 2020,

giving her an unsatisfactory mid-year review, denying her request for

developmental training on October 8, 2020, suggesting a three-day suspension on

October 27, 2020, and giving her an unacceptable rating for her FY20 review on

February 18, 2021. Doc. 41 ¶ 13. Although this allegation is more specific than the

corresponding allegation in the original complaint, it is not sufficient to show

pervasive discrimination on account of Trevizo’s gender, ethnicity, or color.

Nothing in the amended complaint ties these allegations together, and the

allegations span years. Trevizo alleges two instances of discrimination in 2017,

one in 2018, two in 2019, and one in 2020, criticism of an email with specific dates

and alleged bad reviews or punishment, and one example of discrimination

regarding increased scrutiny about work product. “[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).

Given the vague and episodic nature of the alleged conduct, despite an

opportunity to remedy the deficiencies by amendment, 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 doing so, we 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 (citing cases).

Even so, hostile-work-environment claims are subject to dismissal 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,” and “[h]e does not aver that these actions changed the conditions

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

environment,” and “[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, Trevizo alleges disparate instances of conduct,

separated by years, by two different supervisors in support of her hostile-work-

environment claim. Viewing the facts alleged as a whole and in the light most

favorable to Trevizo, we conclude that, for the reasons set forth above, Trevizo has

failed to 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.2

V. Amendment.

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

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

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

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

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

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

2 Because we conclude that the amended complaint fails to state a claim

upon which relief can be granted, we do not address the defendant’s other

arguments.

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

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

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

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

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

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

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

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

Trevizo was previously given leave to amend her complaint. Docs. 40.

Trevizo has again, however, failed to state a claim upon which relief can be

granted. We thus conclude that further leave to amend would be futile.

VI. Conclusion.

Based on the foregoing, we will grant the defendant’s motion to dismiss

(doc. 43). An appropriate order follows.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge