THOMAS v. THE WELLINGTON AT HERSHEY MILLS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NA’QUAN THOMAS, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 25-CV-1375

:

THE WELLINGTON :

AT HERSHEY MILLS, et al., :

Defendants. :

MEMORANDUM

COSTELLO, J. MAY 5, 2025

Currently before the Court are a Second Amended Complaint (ECF No. 11), a Motion to

Appoint Counsel (ECF No. 3), and three Motions to Proceed In Forma Pauperis (ECF Nos. 9,

10, 12) filed by Plaintiff Na’Quan Thomas. For the following reasons, the Court will grant

Thomas leave to proceed in forma pauperis. The Court will also permit Thomas the option of

filing a third amended complaint or proceeding only with his disparate treatment and hostile

work environment claims against the Wellington at Hershey Mills and state law claim against

Defendant Guy under the Wiretapping and Electronic Surveillance Control Act (“WESCA”).

The motion to appoint counsel will be denied at this time as premature.1

1 See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (before exercising discretion to

appoint counsel “the district court must consider as a threshold matter the merits of the plaintiff’s

claim”).

I. FACTUAL ALLEGATIONS2

Thomas names as Defendants (1) the Wellington at Hershey Mills (“the Wellington”); (2)

Senior Lifestyle Company, the Wellington’s parent company; and the following employees of

the Wellington: (3) Amy Sicilia, Human Resources Director; (4) Jackie Johnson, the Executive

Director Assistant; (5) Darren Fowlkes, LPN Supervisor; (6) Christopher Poling, Executive

Chef; (7) Ebony Nichole Guy, Lead Server; and (8) Anthony Wiggins, Sr., former Dining

Director. (SAC at 1.) Thomas asserts claims pursuant to Title VII of the Civil Rights Act, 42

U.S.C. § 2000e et seq.3, alleging discrimination on the basis of “race and appearance,” a hostile

work environment, retaliation, and infringement on his right to privacy. (Id. at 1-2; ECF No. 6 at

2.) In support of his claims, Thomas alleges various instances of offensive or racist conduct by

his coworkers and supervisors, disparities in his pay and promotion, and ultimately his indefinite

suspension from work after reporting the issues to management. (See generally SAC.)

Thomas, who is African-American, began working for the Wellington in July 2023 as a

dietary server. (Id. at 1.) On April 11, 2024, Thomas’s supervisor, Defendant Wiggins, told him

2 The following allegations are taken from the Second Amended Complaint (ECF No. 11,

“SAC”) and an Exhibit (ECF No. 6) filed separately, which contains the charging document

Thomas filed with the Equal Employment Opportunity Commission (“EEOC”) regarding alleged

discrimination at the Wellington at Hershey Mills. The Court construes the two documents

together to comprise the Second Amended Complaint and adopts the sequential pagination

supplied by the CM/ECF docketing system.

3 In the SAC, Thomas asserts claims under Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d et seq., while the charge of discrimination he filed with the EEOC asserts claims

under Title VII of the Civil Rights Act of 1964. (SAC at 1; ECF No. 6 at 2). Section 2000d

provides that, “No person in the United States shall, on the ground of race, color, or national

origin, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance.” Because

Thomas brings his claims against a private employer, and he makes no allegations regarding an

entity receiving federal funding, the Court understands him to assert claims pursuant to Title VII

of the Civil Rights Act, 42 U.S.C. 2000e, et seq. rather than Title VI.

to remove his durag head covering “in an unprofessional and aggressive manner” despite white

employees being permitted to wear headbands and headscarves that day. (Id. at 2 ¶ 1.) Thomas

asked to complete a work task before complying, but Wiggins refused and later disciplined

Thomas for the incident. (Id.) On April 14, 2024, Thomas was involved in an argument with a

white female coworker, was sent home early, and received a written warning, while the white

coworker was not subject to disciplinary action. (Id. ¶ 2.) Thomas says he was “subjected to

negative comments regarding his age, maturity, and ability to perform his job” by Defendants

and other unspecified employees, who “often question[ed] his intelligence and commitment in

ways they did not question white employees.” (Id. ¶ 3.) Thomas asserts he was paid

significantly less than “similarly situated white co-workers” who performed the same duties, and

that wage increases were similarly inequitable, and when he brought up his concerns with

management they were “dismissed or ignored.” (Id. at 3 ¶ 4.) Thomas alleges he “was

unlawfully recorded without his consent by Ebony Nichole Guy using Meta Ray-Ban glasses,

violating Plaintiff’s privacy rights despite his signed waiver prohibiting recordings.” (Id. ¶ 6.)

On unspecified dates, Defendants Poling and Guy made comments and threats of physical

violence against Thomas. (Id. ¶ 7.) Thomas reported these incidents, but the Wellington

leadership took no action in response. (Id.)

Unspecified co-workers at the Wellington told Thomas that Defendants Sicilia and

Johnson had shown them images of monkeys and apes, stating they resembled Thomas, while

making racist and other offensive remarks about him. (Id. at 4-5, ¶¶ 11-12.) On December 19,

2024, Defendant Poling sent Thomas home during a shift without explanation. (Id. at 3 ¶ 5.) On

December 21, 2024, Defendant Fowlkes left Thomas a voicemail instructing him not to report to

work until further notice. (Id.) Thomas has not been called into work since that time. (Id.)

Thomas asserts that on December 29, 2024, he suffered “a medical emergency due to severe

stress, anxiety, and depression, from [his work at] the Wellington[,] leading to extreme

dehydration and malnutrition and requiring hospitalization at Crozer Hospital.” (Id. at 4 ¶ 8.)

Thomas filed a charge of discrimination with the EEOC on December 26, 2024, which

issued Thomas a Notice of Right to Sue Letter on February 11, 2025. (ECF No. 6.) He seeks

compensatory damages, punitive damages, injunctive relief, “front pay or a fair settlement in lieu

of reinstatement,” and any other relief the Court deems just and proper. (SAC at 5.)

II. STANDARD OF REVIEW

Because Thomas appears to be unable to pay the fees to commence this civil action, the

Court will grant him leave to proceed in forma pauperis. Accordingly, his Second Amended

Complaint is subject to screening pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires the

Court to screen and dismiss the SAC if it is frivolous, malicious, fails to state a claim, or seeks

relief from an immune defendant. Whether a complaint fails to state a claim under §

1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under

Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d

Cir. 1999), which requires the Court to determine whether the complaint contains “sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). At this early stage of the litigation, the

Court will accept the facts alleged in the pro se complaint as true, draw all reasonable inferences

in the plaintiff’s favor, and ask only whether that complaint, liberally construed, contains facts

sufficient to state a plausible claim. Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021),

abrogation on other grounds recognized by Fisher v. Hollingsworth, 115 F.4th 197 (3d Cir.

2024). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678.

“A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

(citing Twombly, 550 U.S. at 555.) “Although the plausibility standard does not impose a

probability requirement, it does require a pleading to show more than a sheer possibility that a

defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir.

2016) (internal quotation marks and citations omitted). “[T]he plausibility paradigm . . . applies

with equal force to analyzing the adequacy of claims of employment discrimination.” Fowler v.

UMPC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quotations omitted). To state an

employment discrimination claim, as with any other claim, a plaintiff must “put forth allegations

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

Id. at 213 (quotations omitted).

The Court construes the allegations of a pro se complaint liberally. Vogt v. Wetzel, 8

F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d

Cir. 2013)). This requires the Court to remain flexible, especially considering a litigant’s pro se

status. Id. The Court will “apply the relevant legal principle even when the complaint has failed

to name it.” Id. However, “pro se litigants still must allege sufficient facts in their complaints to

support a claim.” Id. (quoting Mala, 704 F.3d at 245). Additionally, an unrepresented litigant

“cannot flout procedural rules - they must abide by the same rules that apply to all other

litigants.” Id.

III. DISCUSSION

A. Title VII

Thomas asserts Title VII claims based on disparate treatment, a hostile work

environment, and retaliation.4 Federal law “proscribe[s] discrimination in employment based on

several personal characteristics” including race. See E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444,

448-49 (3d Cir. 2015) (citing, inter alia, 42 U.S.C. § 2000e-2(a)). Title VII only provides

liability for employers, however, thus individual employees such as Amy Sicilia, Jackie Johnson,

Darren Fowlkes, Christopher Poling, Ebony Nichole Guy, and Anthony Wiggins, Sr. may not be

sued under Title VII, and the claims against them will be dismissed with prejudice. Sheridan v.

E.I. DuPont de Nemours & Co.,100 F.3d 1061, 1078 (3d Cir. 1996) (“[W]e are persuaded that

Congress did not intend to hold individual employees liable under Title VII.”).

Thomas identifies the Wellington as his employer in the charge of discrimination filed

with the EEOC, thus Thomas may bring Title VII claims against the Wellington. (ECF No. 6 at

1.) It is unclear whether Senior Lifestyle Company (“SLC”), the Wellington’s parent company,

is also Thomas’s employer.

The Third Circuit explains that two entities may be a single

employer in the following three situations: (1) if a company splits

into smaller entities to evade Title VII’s minimum employee

requirement; (2) if a parent company directs a subsidiary to

perform the alleged discrimination; or (3) if the two companies’

“affairs are so interconnected that they collectively caused the

alleged discriminatory employment practice.”

Gift v. Travid Sales Assocs., Inc., 881 F. Supp. 2d 685, 692–93 (E.D. Pa. 2012) (citation

omitted.) Thomas has not pleaded facts from which the Court can infer that SLC is his employer

4 Thomas references in passing a “failure to promote.” (SAC at 1.) However, other than

mentioning inequitable “wage adjustments” later in the SAC, this allegation is undeveloped and

conclusory.

under any of the three theories above. However, the Court will dismiss SLC without prejudice,

and to the extent Thomas can allege that SLC is his employer he may do so in a third amended

complaint.

1. Disparate Treatment Claim

For a disparate treatment claim against an employer to be plausible a plaintiff must

“plead[ ] sufficient factual allegations to raise a reasonable expectation that discovery will reveal

evidence of the following elements: (1) that the plaintiff is a member of a protected class, (2) that

the plaintiff was qualified for the position the plaintiff held or sought, (3) that the plaintiff

suffered an adverse employment action, and (4) that the circumstances of the adverse

employment action give rise to an inference of discrimination. Johnson v. Keebler-Sunshine

Biscuits, Inc., 214 F. App’x 239, 241 (3d Cir. 2007); Connors v. Chrysler Fin. Corp., 160 F.3d

971, 974 (3d Cir.1998). However, to plead a claim under Title VII, the complaint need not

allege each element of a prima facie case as set out by the United States Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Fowler v. UPMC Shadyside,

578 F.3d 203, 213 (3d Cir. 2009) (“A determination whether a prima facie case has been made,

however, is an evidentiary inquiry – it defines the quantum of proof plaintiff must present to

create a rebuttable presumption of discrimination . . . . Even post-Twombly, it has been noted

that a plaintiff is not required to establish the elements of a prima facie case but instead, need

only put forth allegations that raise a reasonable expectation that discovery will reveal evidence

of the necessary element.” (internal citation and quotation marks omitted)). Rather, a complaint

must allege facts that provide fair notice of a plaintiff’s claim and demonstrate a plausible right

to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (requiring plaintiffs to allege

facts sufficient to “raise a right to relief above the speculative level”). Accordingly, to state

plausible claims, Thomas must plead sufficient factual allegations to raise a reasonable

expectation that discovery will reveal evidence that he was treated differently due to his race.

Thomas alleges he was subject to employment discrimination based on his “race and

appearance” and as a result was paid less than similarly situated co-workers and disciplined for

conduct that was tolerated among white employees. (SAC at 1-2.) Accepting all inferences in

Thomas’s favor, he therefore alleges a plausible disparate treatment claim against the Wellington

sufficient to pass statutory screening.

2. Hostile Work Environment

Thomas also asserts he has been subject to a hostile work environment based on the

alleged harassment and racist behavior of his co-workers and management’s refusal to address

the misconduct. (SAC at 3-5.) To plead a plausible hostile work environment claim, a plaintiff

must allege: (1) he suffered intentional discrimination because of membership in a protected

class; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally

affected him; (4) it would have detrimentally affected a reasonable person in like circumstances;

and (5) a basis for employer liability is present. Starnes v. Butler Cnty. Ct. of Common Pleas,

50th Jud. Dist., 971 F.3d 416, 428 (3d Cir. 2020) (alterations, internal quotations, and citations

omitted); Felder v. Penn Mfg. Indus., Inc., 303 F.R.D. 241, 243 (E.D. Pa. 2014). “Under Title

VII, a hostile work environment exists 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.” Starnes v. Butler Cnty.

Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416, 428 (3d Cir. 2020) (citations and quotation

marks omitted.) However, “Title VII imposes no general civility code” as it “does not reach the

ordinary tribulations of the workplace, for example, sporadic use of abusive language or

generally boorish conduct.” Vance v. Ball State Univ., 570 U.S. 421, 452 (2013) (internal

quotations omitted).

Thomas’s hostile workplace claims arise from several distinct incidents and sources. He

alleges that he was subject to violent threats and harassment by two co-workers, Christopher

Poling and Ebony Nichole Guy. (SAC at 3.) On an unspecified date, Poling told Thomas, “I

will smack the shit out of you,” and “I will beat you up outside the workplace.” (Id.) Guy told

Thomas, “I’ll get my nephew to come handle you” and “I know where you live, and I will come

see you.” (Id.) While troubling, absent from these alleged statements is any inference that this

behavior was based on Thomas’s race. Thomas provides no context for these statements, and the

reasons for Poling and Guy’s animus towards Thomas is not alleged. Thus, he has failed to

allege a plausible Title VII hostile workplace claim based on the verbal taunts from Poling and

Guy. See Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006) (“Many may suffer severe or

pervasive harassment at work, but if the reason for that harassment is one that is not proscribed

by Title VII, it follows that Title VII provides no relief.”)

Thomas’s other allegations are more substantial. He alleges that on two occasions in

April 2024, he was subject to rules or discipline that were not applied to his white co-workers.

On one occasion, he was “written up” for not immediately complying with his supervisor’s order

that he remove his durag head cover while white co-workers were permitted to wear headbands

and headscarves the same day. (SAC at 2, ¶ 1.) On another occasion during the same week,

Thomas got into an argument with a white co-worker and he alleged that he was sent home early

and later disciplined, while the co-worker was not. (Id. at 2 ¶ 2.) Thomas also asserts that on an

unspecified date Sicilia and Johnson made “explicit racial remarks” about him to two unnamed

coworkers while showing them photos of monkeys and apes. (Id. at 4-5.) Thomas asserts that,

after he was effectively suspended from his position at the Wellington, he suffered severe stress,

anxiety, and depression, including suicidal ideation, resulting from “workplace mistreatment” at

the Wellington. (Id. at 4.) Thomas thus plausibly alleges that he was subject to pervasive race-

based discrimination at the Wellington that detrimentally affected his working conditions and

that his employer took no corrective action to address. Accordingly, the hostile work

environment claim will be served on the Wellington for a responsive pleading.

3. Retaliation

Next, Thomas asserts he was subject to retaliation for reporting various problems to his

managers at the Wellington, including apparent race-based disparities in pay. (SAC at 3 ¶ 5.)

Title VII prohibits an employer from retaliating against an employee for opposing any act made

unlawful by the employment discrimination statutes, or because he made a charge, testified,

assisted, or participated in an investigation, proceeding, or hearing under the employment

discrimination statutes. See 42 U.S.C. § 2000e-3; Allstate Ins. Co., 778 F.3d at 449. A plaintiff

states a retaliation claim if he “pleads sufficient factual allegations to raise a reasonable

expectation that discovery will reveal evidence of the following elements: (1) [he] engaged in

conduct protected by [the statute]; (2) the employer took adverse action against [him]; and (3) a

causal link exists between [his] protected conduct and the employer’s adverse action.” Connelly,

809 F.3d at 789; Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).

Thomas fails to satisfy the first element of a retaliation claim. He alleges “Retaliation for

Reporting Discrimination” (SAC at 3 ¶ 5) in conclusory terms only by using those words as an

introductory heading to a paragraph that contains no factual allegations about conduct protected

by Title VII. He alleges he was sent home during his shift on December 19, 2024 by Poling, that

Fowlkes instructed him on December 21 not to report to work until further instructed by Sicilia

or Johnson, and that he never heard from these managers at the Wellington since. (Am. Compl.

at 3 ¶ 5.) Thomas provides no allegations as why he was sent home or told not to come back and

specifically fails to allege that the actions were taken because he engaged in conduct protected

by Title VII. Because he has failed to allege protected conduct and a causal link between that

conduct and the adverse action, his retaliation claim is not plausible and will be dismissed. The

Court will, however, permit Thomas an opportunity to amend this claim to attempt to cure this

defect.

B. Unauthorized Audio and Video Recording

Finally, Thomas alleges that Defendant Guy made an unauthorized audio and video

recording of him and his co-workers using her Meta Ray-Ban glasses. Liberally construed,

Thomas may be attempting to assert a claim pursuant to Pennsylvania’s Wiretapping and

Electronic Surveillance Control Act (“WESCA”), which prohibits, inter alia, intercepting a

private conversation without the other person’s consent.5

That statute states in relevant part:

Except as otherwise provided in this chapter, a person is guilty of a

felony of the third degree if he:

(1) intentionally intercepts, endeavors to intercept, or procures any

other person to intercept or endeavor to intercept any wire,

electronic or oral communication;

(2) intentionally discloses or endeavors to disclose to any other

person the contents of any wire, electronic or oral

communication, or evidence derived therefrom, knowing or

having reason to know that the information was obtained

through the interception of a wire, electronic or oral

communication . . .

5 To the extent Thomas offers these factual allegations in support of a Title VII claim,

such a claim is not plausible as Guy is an individual employee and thus not a proper Defendant

under Title VII. See Sheridan, 100 F.3d at 1078. Moreover, Thomas does not allege any facts to

suggest that the unauthorized recordings involved discrimination based on his membership in a

protected class.

18 Pa. C.S. § 5703. The statute defines “intercept” as “aural or other acquisition of the contents

of any wire, electronic or oral communication through the use of any electronic, mechanical or

other device.” 18 Pa. C.S. § 5702. It further defines “electronic, mechanical or other device,”

with certain exceptions, as [a]ny device or apparatus . . . that can be used to intercept a wire,

electronic or oral communication.” 18 Pa. C.S. § 5702. The law provides a private cause of

action for an individual whose communication is intercepted. See 18 Pa. C.S. § 5725.

Thomas asserts that he

was unlawfully recorded without his consent by Ebony Nichole

Guy using Meta Ray-Ban glasses, violating Plaintiff’s privacy

rights despite his signed waiver prohibiting recordings. This

recording included both audio and video, capturing private

conversations and personal details of Plaintiff and other employees

without their knowledge.

(SAC at 3 ¶ 6.) Thomas adequately alleges that Guy intercepted his oral communications

without his consent using an electronic device, thus this claim will be served for a responsive

pleading.

IV. CONCLUSION

For the foregoing reasons, the Court will grant Thomas leave to proceed in forma

pauperis and dismiss the SAC with the exception of Thomas’s Title VII disparate treatment and

hostile work environment claims against the Wellington, and the state law WESCA claim against

Guy. Thomas may opt to proceed only on those claims or file a third amended complaint to

attempt to cure the defects the Court has identified in his other claims that are dismissed without

prejudice. His Title VII claims against Defendants Amy Sicilia, Jackie Johnson, Darren

Fowlkes, Christopher Poling, Ebony Nichole Guy, and Anthony Wiggins, Sr. will be dismissed

with prejudice because they may not be sued under that statute. An appropriate order follows,

which contains additional instructions as to amendment.

BY THE COURT:

MARY KAY COSTELLO, J.

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