TOLLIVER v. THE SCHOOL DISTRICT OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ARMANDO TOLLIVER : CIVIL ACTION

:

v. : NO. 24-4140

:

THE SCHOOL DISTRICT OF :

PHILADELPHIA, DR. JANICE :

BUTLER, DR. JOHNATHAN BROWN, :

DR. EVELYN NUNEZ :

MEMORANDUM

MURPHY, J. June 30, 2025

I. Introduction

Dr. Armando Tolliver is employed by the School District of Philadelphia, most recently

as an Assistant Principal. He alleges that the district and several of its administrators

discriminated against him on the basis of sexual orientation and race. According to Dr. Tolliver,

this discrimination included removal from his office space, reassignment to lesser duties, and

exclusion from meetings. Most significantly, he was transferred from a permanent position to a

temporary one, where he was reclassified as “displaced” — a designation that threatened his job

security (and continues to do so today).

Dr. Tolliver filed a charge with the EEOC alleging discrimination based solely on sexual

orientation. He now asserts additional claims based on race. Defendants moved to dismiss the

complaint in its entirety. We grant the motion in full. Some of Dr. Tolliver’s claims are barred

for failure to exhaust administrative remedies, while others are dismissed because they lack

sufficient factual allegations. Nonetheless, because we do not find amendment to necessarily be

futile, we grant Dr. Tolliver leave to amend his complaint once more.

II. Background

Dr. Tolliver is an African American male who alleges that his employer — the School

District of Philadelphia (SDP) — discriminated against him, predominantly on the basis of race

and sexual orientation. DI 8 ¶¶ 1, 6.1 He is suing SDP, Dr. Janice Butler, Dr. Johnathan Brown,

and Dr. Evelyn Nunez for violations of 42 U.S.C. § 1981, the Pennsylvania Human Relations

Act (PHRA), and the Philadelphia Fair Practices Ordinance (PFPO). Id. ¶¶ 7-11. We summarize

the notable facts according to Dr. Tolliver’s complaint below.

SDP hired Dr. Tolliver as a teacher in August 2010, id. ¶ 19, and promoted him to

Assistant Principal in 2018, id. ¶ 20. In October 2021, Dr. Tolliver began to face “severe and

pervasive discrimination and harassment due to his race and sexual orientation.” Id. ¶ 25. On

November 12, 2021, Dr. Tolliver was removed from his office, forced to work in a hallway, and

assigned a new lunch period — treatment different than his coworkers received. Id. ¶¶ 88-96,

115-16. Then in December 2021, Dr. Tolliver’s work duties were limited, and he was not

allowed to attend a meeting “which was extremely disconcerting and indicated an intentional

effort to exclude Dr. Tolliver from the other school administrators.” Id. ¶¶ 103-04. These

incidents corresponded with Dr. Brown beginning employment. Id. ¶¶ 88-117.2

In February 2022, Dr. Tolliver apparently reported discrimination, but we know nothing

1 Dr. Tolliver also sometimes states “race, color, and national origin, [and] sexual

orientation” as bases for the discrimination he alleges, DI 8 ¶ 1, but he does not include any

factual allegations about national origin.

2 Dr. Tolliver also alleges that on November 12, 2021, he was “instructed to begin

suspending students without any support through the school code of conduct,” which he was

concerned “would lead to disparate impact upon certain students in certain protected groups.”

DI 8 ¶¶ 97-98. Apparently, he was “kicked out of his office” on the same day that he reported

his concerns. Id. ¶ 101. The complaint does not explain how this relates to Dr. Tolliver’s

discrimination claims.

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about this report — the complaint provides no information about to whom he made the report,

what the report included, or whether there was any follow-up. Id. ¶ 122.

On May 6, 2022, “Plaintiff went from being the Assistant Principal at Thomas Jefferson

to a temp at Roxborough.” Id. ¶ 85. On the same day, he was placed on an “eligibility list.” Id.

¶ 45. Reading between the lines, we understand the eligibility list to include staff members

eligible for hire within SDP. From what we can surmise, Dr. Tolliver’s transfer to Roxborough

as a temporary employee in May 2022 resulted in his employment categorization changing from

“permanent” to “displaced,” id. ¶ 27 — which also explains why he was placed on the eligibility

list on the same day. According to Dr. Tolliver “[d]isplaced is considered an adverse

employment action as it means that the employee changes location every year and has no

advance notice of where he will be working.” Id. In addition, Dr. Tolliver says “he was also

denied the ability to apply directly to any school and had to wait until SDP determined where he

could go.” Id.

Dr. Tolliver apparently reported discrimination again in May 2022, but again the

complaint lacks details. Id. ¶ 122. Dr. Tolliver alleges that he was generally subjected to

discrimination, harassment, and an abusive work environment “due to his race and sexual

orientation and as part of a campaign of retaliation” during this time, largely because of Dr.

Brown. Id. ¶¶ 75, 87.

On July 3, 2022, Dr. Tolliver learned that his name had been removed from the eligibility

list. Id. ¶ 43. He complained, and his name was placed back on the list on July 5, 2022.

Id. ¶ 44.3 On July 11, 2022,4 Dr. Tolliver filed an EEOC charge, id. ¶ 15, in which he alleged

3 Dr. Tolliver also states that he “should have been placed on the eligibility list

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discrimination, harassment, and retaliation “based on sexual orientation in violation of Title VII

of the Civil Rights Act of 1964,” DI 10-1 at 2.5 On July 27, 2023, the EEOC issued a right to

sue letter. DI 10-3. Dr. Tolliver filed suit on August 12, 2024. DI 1. Defendants moved for

dismissal, DI 5, and Dr. Tolliver amended his complaint in response, DI 8. Dr. Tolliver’s

amended complaint tells us that he remains on displaced status. DI 8 ¶ 28. Defendants again

filed a motion to dismiss, DI 10, which is ripe for our review.

III. Analysis

Dr. Tolliver’s amended complaint states eight causes of action: (1) discrimination under

§ 1981; (2) discrimination under the PHRA; (3) retaliation under the PHRA; (4) aiding and

abetting under the PHRA; (5) hostile work environment under § 1981; (6) retaliation under

§ 1981; (7) discrimination under the PFPO; and (8) retaliation under the PFPO. DI 8 at 17-27.

We group the causes of action by first discussing exhaustion, then the remaining PHRA and

PFPO claims, and finally the § 1981 claims.

automatically, but he was not placed on the list until May 6, 2022, and then removed on July 5.”

DI 8 ¶ 45. Given that Dr. Tolliver became a temporary employee on May 6, 2022, id. ¶ 85, we

do not know why he should have been on the eligibility list earlier.

4 In paragraph 78, Dr. Tolliver says defendants received the charge on June 11, 2022.

DI 8 ¶ 78. That conflicts with paragraph 15, where Dr. Tolliver says defendants received the

charge on July 11, 2022. Id. ¶ 15. The EEOC charge submitted as an exhibit to defendants’

motion is dated July 11, 2022. DI 10-1.

5 Dr. Tolliver’s complaint does not incorporate many of the factual allegations from the

EEOC charge. And he did not provide us with the EEOC charge — defendants filed it as an

attachment to their motion to dismiss. If Dr. Tolliver wants us to consider all the facts contained

in his EEOC complaint, he should include them in his second amended complaint.

Additionally, Dr. Tolliver’s complaint states that he filed the EEOC charge “based upon

[his] membership in a protected class based upon race and sexual orientation.” DI 8 ¶ 15. As

discussed infra III(A), Dr. Tolliver’s EEOC charge did not reference race.

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A. Dr. Tolliver exhausted only his claims based on sexual orientation under

PHRA and PFPO.

“Prior to seeking judicial relief under the PHRA . . ., a plaintiff must exhaust all

administrative remedies.” Kopko v. Lehigh Valley Health Network, 776 Fed. App’x 768, 773 (3d

Cir. 2019) (citing Colgan v. Fisher Sci. Co., 935 F.2d 1407, 1414 (3d Cir. 1991)). The same is

true for PFPO claims. Mouzone v. Univ. of Penn. Health Sys., No. 23-19, 2023 WL 7167565

(E.D. Pa. Oct. 31, 2023).6 “The relevant test in determining . . . exhaust[ion of] . . .

administrative remedies . . . is whether the acts alleged in the subsequent . . . suit are fairly

within the scope of the prior EEOC complaint, or the investigation arising therefrom.” Antol v.

Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). We must assess the “gravamen” of the administrative

charge and determine whether the agency was “put on notice” as to the unstated claim. Id. at

1296. In Antol, an appellant’s administrative complaint exclusively alleged disability

discrimination, and the agency investigated solely that issue. Id. at 1295. The Third Circuit held

that the plaintiff’s administrative complaint did not exhaust his subsequent sex discrimination

claim, even though it was possible that the administrative investigation could have revealed sex

discrimination. Id. at 1295-96. The purpose of administrative exhaustion is “to afford the

[agency] the opportunity to settle disputes through conference, conciliation, and persuasion,

avoiding unnecessary action in court,” and the agency cannot do that when not put on notice. Id.

at 1295-96.

Similarly, Dr. Tolliver alleged only one type of discrimination at the agency level but

then added more in his civil complaint. The EEOC form submitted on July 11, 2022, exclusively

6 We do not know whether Dr. Tolliver filed with the Philadelphia Commission on

Human Rights, but that requirement is waivable, and defendants did not raise it.

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alleged “discrimination and harassment . . . based on sexual orientation.” DI 10-1 at 1-2. And

the supplement filed by Dr. Tolliver’s counsel on November 11, 2022, described the charge as

“sex orientation and gender discrimination through severe and pervasive sexual harassment and

retaliation.” 10-2 at 1. All the underlying factual allegations are exclusively tied to that charge.

E.g., DI 10-1 at 1 (“The circumstances of discrimination and harassment are based on my sexual

orientation.); DI 10-2 at 4 (“Charging Party has been subjected to severe and pervasive

discrimination and harassment in the workplace due to his sex and gender.”). But in his civil

complaint, Dr. Tolliver also alleges race, color, and national origin discrimination. We see

nothing in the administrative record that would have put the agencies on notice of those claims.

The motion to dismiss discusses this issue at length, and Dr. Tolliver’s opposition does not

respond. Considering the above, we dismiss Dr. Tolliver’s PHRA and PFPO claims of race,

color, and national origin for failure to exhaust.

B. Dr. Tolliver fails to state a claim for sexual-orientation discrimination,

retaliation, or aiding & abetting under the PHRA and PFPO.

1. Discrimination

To state a claim of sexual-orientation discrimination, Dr. Tolliver must adequately allege

that (1) he is a member of a protected class; (2) he was qualified for his position; (3) he

experienced an adverse employment action; and (4) that the circumstances of the adverse

employment action give rise to an inference of unlawful discrimination. See Jones v. Sch. Dist.

of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999).

Defendants dispute that the amended complaint alleged an adverse employment action

and an inference of unlawful discrimination. DI 10 at 17. An adverse employment action is one

which is “serious and tangible enough to alter an employee’s compensation, terms, conditions, or

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privileges of employment.” Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001). The injury

need not be “significant” but must “concern the terms or conditions of . . . employment.”

Muldrow v. City of St. Louis, 601 U.S. 346, 358 (2024). Dr. Tolliver alleges that he was

removed from his office and forced to work in a hallway, DI 8 ¶ 95-96, his duties were limited,

id. ¶ 104, he was not allowed to attend an important meeting, id. ¶ 103, he was subjected to

disciplinary action, id. ¶ 117, and he was reassigned from a permanent position to a temporary

position, affecting his job stability, id. ¶ 85. We find that these factual allegations concern the

terms of Dr. Tolliver’s employment with SDP, Muldrow, 601 U.S. at 358, and, together, may be

serious and tangible, Cardenas, 269 F.3d at 263.

Next, we ask whether the circumstances of the adverse employment action “give rise to

an inference of unlawful discrimination.” Jones, 198 F.3d at 411. The central focus of this

inquiry is “whether the employer is treating some people less favorably than others because of

their . . . sex.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003) (internal

quotations omitted). While allegations of “precise . . . disparate treatment” are not required, a

plaintiff must allege “some causal nexus between his membership in a protected class” and the

adverse employment action. Id.

We find that Dr. Tolliver’s amended complaint does not allege facts sufficient to allow an

inference of discrimination. Dr. Tolliver predominantly makes conclusory allegations that he

faced discrimination “due to . . . sexual orientation.” E.g., DI 8 ¶ 25, 87. A plaintiff’s “own

assertion” of discrimination, without more, is not enough for an inference of discrimination.

Sarullo, 352 F.3d at 798 (finding no prima facie case when evidence was primarily plaintiff’s

claim that “he was not rehired because he is Native American,” even though he had been called

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“derogatory nicknames referencing his Native American heritage”). The closest “causal nexus”

we can surmise is that Dr. Tolliver’s negative treatment began once he began working with Dr.

Brown, see e.g., DI 8 ¶¶ 88-107, and that Dr. Tolliver was “singled out and treated differently

than similarly situated coworkers,” id. ¶ 116. But we do not know the characteristics of those

other employees, or any other context from which we could infer unlawful discrimination.

Accordingly, we find that Dr. Tolliver has failed to plead sexual-orientation discrimination under

the PHRA and PFPO.

2. Retaliation

To establish a retaliation case, an employee must plead “(1) [he] engaged in activity

protected by Title VII; (2) the employer took an adverse employment action against [him]; and

(3) there was a causal connection between [his] participation in the protected activity and the

adverse employment action.” Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir.

2006). An adverse employment action means that “a reasonable employee would have found the

alleged retaliatory actions ‘materially adverse’ in that they ‘well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.’” Id. at 341 (quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)).

We find that the amended complaint does not adequately allege retaliation — that is, an

adverse employment action causally connected to protected activity. Dr. Tolliver’s two key

allegations — that he was removed from an “Eligibility List,” DI 8 ¶ 43, and that he was

reassigned from being an Assistant Principal at Thomas Jefferson to a temp at Roxborough, id.

¶ 85 — pre-date defendants’ receipt of the EEOC charge, id. ¶ 15.7 And even other broadly

7 See supra footnote 4 for discussion of the EEOC charge date and inconsistencies in the

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alleged conduct such as Dr. Tolliver being subjected “to an abusive work environment due to his

race and sexual orientation and as part of a campaign of retaliation” ended after June 2022.

Id. ¶ 87. Dr. Tolliver may be suggesting he faced retaliation for the discrimination reports he

made in “February 2022, and again in May 2022,” id. ¶ 122, but the amended complaint includes

no facts about those reports, so we cannot assess if they constituted protected activity and if they

are causally related to the alleged adverse employment actions. If Dr. Tolliver wants to base his

retaliation claim on something other than the EEOC charge, he needs to allege facts from which

a plausible inference of retaliation can be made.

3. Aiding and Abetting

Because we dismiss all underlying violations of the PHRA, we also dismiss Dr.

Tolliver’s claim of aiding and abetting. See Eldeeb v. Alliedbarton Sec. Servs. LLC., No. 07-669,

2008 WL 4083540, at *11 (E.D. Pa. Aug. 28, 2008) (finding defendant “cannot be liable for

aiding and abetting any allegedly discriminatory practices” when primary defendant granted

summary judgment on “plaintiff’s claims of unlawful discrimination and retaliation in violation

of the PHRA”), aff’d, 393 Fed. App’x 877 (3d Cir. 2010); Kanyangarara v. Step by Step, Inc.,

No. 22-2264, 2023 WL 6321769, at *8 (E.D. Pa. Sept. 28, 2023) (collecting cases for proposition

that “courts in this [d]istrict dismiss or grant summary judgment on aiding and abetting claims

under § 955(e) [of the PHRA] when no underlying discrimination claim survives”).

C. Dr. Tolliver fails to state a claim for § 1981 sexual-orientation discrimination,

race discrimination, retaliation, or hostile work environment.

1. Discrimination

Dr. Tolliver alleges violations of § 1981 for race and sexual-orientation discrimination.

amended complaint.

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DI 8 at 17-19. In this context, § 1981 only protects against racial discrimination. Anjelino v.

New York Times Co., 200 F.3d 73, 97-98 (3d Cir. 1999). Therefore, we dismiss the sexual-

orientation-based § 1981 claims.

“To establish a discrimination claim under § 1981, a plaintiff must show (1) that he

belongs to a racial minority; (2) an intent to discriminate on the basis of race by the defendant;

and (3) discrimination concerning one or more of the activities enumerated in § 1981.”

Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017) (internal quotations omitted).

Defendants do not dispute that Dr. Tolliver alleges the first and third requirements but argue that

he failed to allege discriminatory intent. DI 10 at 23.

We identify two non-conclusory allegations: (1) that Dr. Tolliver was not able to apply

for jobs while “non-black individuals who were not even employees of the school district were

treated better than [him] and given preferential treatment over [him],” DI 8 ¶¶ 44-46, and (2) that

“[o]ther non-black non protected employees who did not even have a position to begin with were

given preferential treatment over [him],” id. ¶ 84.8 While these allegations state that non-black

individuals were treated better than black individuals, DI 8 ¶¶ 44-46, 84, they do not establish

discriminatory intent.

Dr. Tolliver cites EEOC v. Metal Serv. Co., 892 F.2d 341, 350 (3d Cir. 1990) for the

8 One argument raised in the response to the motion to dismiss appears entirely unrelated

to this case. “Defendant did not advise Plaintiff of any full-time Spanish Teacher openings when

they changed her teaching contract from full-time to part-time. In fact, Defendant hired two

younger Hispanic women to work as full-time Spanish Teachers immediately after changing Ms.

Goodman from full-time to part-time. Additionally, Defendant retaliated against Ms. Goodman

after she filed a Complaint with the PHRC complaining of the foregoing discriminatory

treatment. Defendant retaliated by increasing her classroom observations, giving her a Needs

Improvement performance evaluation and placing her on a Performance Improvement Plan

(PIP).” DI 14 at 4-5.

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proposition that “[w]here an employer fails to notify its own African American employee of a

vacancy and instead goes outside of the company to hire a worker outside its employee’s

protected class, a qualified African American employee has a prima facie case of discriminatory

hiring based on race.” DI 14 at 5. But the decision actually holds “the fact that [plaintiffs] were

required to undergo a burdensome application process while white applicants were being hired

for apparently unskilled jobs through word-of-mouth in an all white workforce is sufficient to

establish a prima facie case.” Metal Serv., 892 F.2d at 351. The allegations here are materially

different — Dr. Tolliver does not allege an all-white workforce or less skilled individuals being

hired through secretive tactics.

In Castleberry, plaintiffs established a prima facie case by alleging that “they were the

only black males assigned to their specific site, they were assigned undesirable duties, they were

the targets of racial epithets, and they were fired twice due to their race.” Id. at 266. While Dr.

Tolliver alleges that his job prospects were limited due to his race, his allegations do not

demonstrate that the treatment was unique to black individuals or that he faced “racial epithets”

like the plaintiffs in Castleberry. And in Qing Qin v. Vertex, 100 F.4th 458, 474 (3d Cir. 2024),

it was enough for the plaintiff — the only Chinese employee — to point to equally skilled and

tenured comparators being promoted over him. Dr. Tolliver does not, alleging only that non-

black employees — without reference to skill or tenure — were given opportunities that he was

not.9 Accordingly, we find Dr. Tolliver failed to state a claim for racial discrimination under

9 In opposition to the motion to dismiss, Dr. Tolliver argues that “[o]ther non-black

employees with less experience were not displaced.” DI 14 at 5. He cites to paragraphs 27 and

84 of his amended complaint. Id. Neither of these paragraphs reference the non-black

employees as having less experience. DI 8 ¶¶ 27, 84. Paragraph 84 merely states that the non-

black employees “did not even have a position to begin with.” Id. ¶ 84. We do not know how

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§ 1981.

2. Retaliation

“To establish a retaliation claim in violation of § 1981, a plaintiff must establish the

following: (1) [he] engaged in [protected] activity . . .; (2) the employer took an adverse

employment action against [him]; and (3) there was a causal connection between [his]

participation in the protected activity and the adverse employment action.” Castleberry, 863

F.3d at 267 (internal quotations omitted). And Dr. Tolliver “must have acted under a good faith,

reasonable belief that a violation [of § 1981] existed.” Id. The only protected activity we know

about is the EEOC complaint reporting sexual-orientation discrimination (not race

discrimination). E.g., DI 8 ¶¶ 41, 78-79, 87, 129.10 Because we find no factual allegations of

protected activity under § 1981, and because Dr. Tolliver failed to allege a plausible underlying §

1981 violation, we dismiss his § 1981 retaliation claim.

3. Hostile Work Environment

A hostile work environment claim under § 1981 requires that “1) the employee suffered

intentional discrimination because of his/her [race], 2) the discrimination was severe or

that fact is relevant to the candidates’ experience. Dr. Tolliver may not add allegations, such as

that his comparators had less experience, in opposition to a motion to dismiss. Pennsylvania ex

rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the

complaint may not be amended by the briefs in opposition to a motion to dismiss.”).

10 Dr. Tolliver’s complaint vaguely mentions reports to human resources. See e.g., DI 8

¶ 41. But we know nothing about those reports. And he makes other conclusory allegations

about the same, such as “[p]laintiff was intentionally assigned this status in retaliation for

Plaintiff complaining about his disparaging treatment based on his race and sexual orientation.”

Id. ¶ 29. We do not know about any complaints other than the sexual orientation charge raised to

the EEOC. If Dr. Tolliver engaged in protected activity related to the alleged race

discrimination, he needs to plead those facts.

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pervasive, 3) the discrimination detrimentally affected the plaintiff, 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 263. After

disregarding conclusory allegations, the facts supporting Dr. Tolliver’s hostile work environment

claims are:11

• In November 2021, shortly after Dr. Butler started working with Dr. Tolliver, Dr.

Tolliver was removed from his office space, required to work in the hallway,

prevented from attending an important meeting, had his job duties limited, was

assigned a new lunch period, was subjected to discipline, and was treated

differently than other employees. DI 8 ¶¶ 88-118.

• In May 2022, Dr. Tolliver was reassigned from his position as Assistant Principal

at Thomas Jefferson to a temporary position at Roxborough. Id. ¶ 85.

• In July 2022, Dr. Tolliver was removed from an eligibility list, id. ¶ 43, inhibiting

his ability to be considered for open jobs at the district.

Dr. Tolliver’s hostile work environment claim is unsustainable as pled. Most

importantly, he fails to plead intentional discrimination. One way a plaintiff may establish

intentional discrimination is through facts that “overtly implicate racial animus.” Davis v. City of

Newark, 285 Fed. App’x 899, 902 (3d Cir. 2008). Dr. Tolliver does not include any such

allegations. Another way to plead intentional discrimination is “by way of comparators,

specifically, by alleging that similarly situated persons who are not members of [plaintiff’s]

protected class were treated more favorably.” Williams v. Aramark Campus LLC, No. 18-5374,

11 We do not know how the allegations about the suspension of students fit into Dr.

Tolliver’s case.

13

2020 WL 1182564, at *5 (E.D. Pa. Mar. 12, 2020) (internal quotations omitted). Dr. Tolliver

appears to take this approach but does so unsuccessfully.

One flaw in the amended complaint’s reference to comparators is insufficient information

about their identities. See e.g., DI 8 ¶¶ 59, 116. For example, Dr. Tolliver alleges that he “was

singled out and treated differently than similarly situated coworkers.” Id. ¶ 116. For all we

know, those “similarly situated coworkers” were from the same protected classes as Dr. Tolliver.

Nor do we know whether they are similarly situated. For example, Dr. Tolliver alleges that

“non-black individuals who were not even employees of the school district were treated better

than [him] and given preferential treatment over [him].” Id. ¶ 46. Those individuals may have

been more qualified than Dr. Tolliver and therefore not “similarly situated.” As the Third Circuit

has explained, a plaintiff “cannot sustain a claim simply by asserting an event and then asserting

that it was motivated by racial bias.” Davis, 285 Fed. App’x at 903. Because of these flaws, Dr.

Tolliver fails to allege intentional discrimination and his hostile work environment claim must be

dismissed.12

12 We also see problems with the second and fourth requirements. The frequency and

severity of the conduct is likely insufficient to establish a hostile work environment claim.

“Whether an environment is hostile requires looking at the totality of the circumstances,

including: ‘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.’” Castleberry, 863 F.3d at 264 (quoting Harris v.

Forklift Sys., 510 U.S. 17, 23 (1993)). “[I]solated incidents (unless extremely serious) will not

[do].” Id.

The Third Circuit has affirmed summary judgment for an employer in instances with

significantly more egregious facts. In Nitkin v. Main Line Health, the Third Circuit affirmed a

finding of no hostile work environment despite seven instances where a supervisor made

sexually inappropriate comments to an employee leading to the employee locking herself in a

bathroom out of fear for her personal safety. 67 F.4th at 567-73. And in Ali v. Woodbridge Twp.

Sch. Dist., the Third Circuit affirmed a finding of no hostile work environment when a supervisor

greeted an employee with offensive, racially insensitive remarks, in part because the comments

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IV. Conclusion

In sum, we grant defendants’ motion to dismiss in full. Dr. Tolliver’s PHRA and PFPO

claims based on race, color, and national origin are dismissed for failure to exhaust. His sexual-

orientation discrimination and retaliation claims under the PHRA and PFPO are dismissed for

failure to state a claim upon which relief may be granted. Considering the dismissal of the

PHRA claims, Dr. Tolliver’s PHRA aiding and abetting claim is also dismissed. Finally, Dr.

Tolliver’s § 1981 claims are dismissed for failure to state a claim upon which relief may be

granted. Dr. Tolliver has 14 days to amend his complaint.

were not “so pervasive that they altered the working environment,” even when made during

meetings that occurred immediately prior to the employee’s termination. 957 F.3d 174, 179, 182

(3d Cir. 2020).

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