The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JASON L. BROWN,
Plaintiff,
CIVIL ACTION
v. NO. 25-3008
PORT AUTHORITY TRANSIT
CORPORATION,
Defendant.
Pappert, J. September 11, 2025
MEMORANDUM
Pro se Plaintiff Jason L. Brown sued his employer, Port Authority Transit
Corporation, under Title VII of the Civil Rights Act of 1964 alleging retaliation and
hostile work environment. PATCO moves to dismiss Brown’s Complaint on the grounds
that it fails to state claims. The Court grants the motion and will allow Brown to
amend his Complaint consistent with this Memorandum and the accompanying Order.
I
Brown used the Court’s form Complaint, checking the box indicating that he
brings claims under Title VII of the Civil Rights Act of 1964. (Form Compl. at 1, Dkt.
No. 1.) For discriminatory conduct alleged, Brown checked boxes for: “[f]ailure to stop
harassment,” “[u]nequal terms and conditions of [his] employment,” and “[r]etaliation.”
(Id. at 2–3.) To provide the factual basis for his claims, he attached to his Complaint
(among other things) a document called “Plaintiff’s Complaint against Defendant and
Request for Relief,” a charge of discrimination that he filed with the Equal Employment
Opportunity Commission (“EEOC”), and a November 2024 email he sent to a PATCO
employee. See (Compl. ¶¶ 1–25, Dkt. No. 1); (EEOC Charge of Discrimination at 3–5,
Dkt. No. 1-1); (Email from Jason L. Brown to John Rink at 6–7, Dkt. No. 1-1).
Brown began working for PATCO as a custodian in 2019 and is now the senior
custodian on the night shift. (Compl. ¶¶ 5, 12.) In November of 2024, he emailed John
Rink, a PATCO general manager, expressing “concern about overtime and how it was
being distributed [among] the custodians.” (Id. ¶¶ 2, 9); see also (Email from Jason L.
Brown to John Rink at 6–7). Though Brown’s allegations about PATCO’s overtime
distribution practices are unclear, their gravamen appears to be that PATCO did not
permit night shift custodians to work as many overtime hours as morning shift
custodians. (Compl. ¶ 8); (Email from Jason L. Brown to John Rink at 7). Sometime
after Brown emailed Rink, a PATCO director “made [the] decision to reduce overtime
for night shift custodians.” (Compl. ¶ 17.) This decision “made it so [that] all night
shift staff, [Brown] included, no longer had access to overtime.” (EEOC Charge of
Discrimination at 3.) Yet “all morning staff [are still] able to earn overtime.” (Id.)
Brown’s Complaint asserts claims against PATCO for retaliation and hostile
work environment under Title VII.1 Count I pleads two theories of retaliation. First,
Brown claims, a PATCO director reduced overtime opportunities for night shift
custodians because Brown complained to Rink about how overtime “was being
1 Before bringing suit in federal court under Title VII, a plaintiff must first file a charge of
discrimination with the EEOC. Hayes v. N.J. Dep’t of Hum. Servs., 108 F.4th 219, 221 (3d Cir.
2024). If the EEOC decides not to pursue the charge, it notifies the plaintiff, typically via a notice of
right to sue letter. Id. Brown filed a charge of discrimination with the EEOC on April 1, 2025.
(Form Compl. at 4.) The EEOC notified Brown that it would not pursue his charge via a notice of
right to sue letter issued the following day, April 2, 2025. (Determination and Notice of Rights at 1,
Dkt. No. 1-1.) Brown states that he received this letter from the EEOC on April 2, 2025. (Form
Compl. at 4.) A copy of the letter, which is attached to the Complaint, states that issuance of the
notice would enable Brown to file suit in federal court “within 90 days of [his] receipt of [the] notice.”
(Determination and Notice of Rights at 1.) Brown timely filed this lawsuit, on June 11, 2025.
distributed [among] the custodians.” (Compl. ¶¶ 2, 17–20.) Second, Brown alleges, a
PATCO director reduced overtime opportunities for night shift custodians because
Brown previously sued either PATCO or a PATCO employee for discriminatory conduct.
(Id. ¶¶ 14, 17). Count II alleges hostile work environment. To support this claim,
Brown contends that after he emailed Rink, morning shift custodians engaged in
abusive and harassing behavior by intentionally leaving trash on the ground for night
shift custodians to clean. (Id. ¶¶ 11, 15.) He also claims a morning shift custodian
broke into his locker and stole his cleaning supplies. (Id. ¶ 21.)
II
The Court assesses the sufficiency of a pleading before discovery under Federal
Civil Rules 8 and 12. Rule 8(a)(2) provides that a complaint “must contain . . . a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). And Rule 12(b)(6) permits a district court to dismiss a complaint that
fails “to state a claim upon which relief can be granted.” Id. 12(b)(6). Taken together,
the two rules require the plaintiff to allege sufficient “facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The first
step in determining whether a plaintiff has stated a plausible claim is to “tak[e] note of
the elements” underlying his claim. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009);
Santiago v. Warminster Township, 629 F.3d 121, 129–30 (3d Cir. 2010). The second
step is to examine the plaintiff’s complaint and determine whether the factual
allegations “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.
Plausibility requires the plaintiff to plead sufficient facts to allow “the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678. The reasonableness of an inference depends on common sense and the
strength of competing explanations for the defendant’s conduct. Connelly v. Lane
Constr. Corp., 809 F.3d 780, 786–87 (3d Cir. 2016); Iqbal, 556 U.S. at 682. Plaintiffs do
not meet the plausibility burden when the facts alleged are “merely consistent with a
defendant’s liability” or show nothing “more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678 (quotation marks and citation omitted).
In gauging the plausibility of a claim, the Court must accept as true all well-pleaded
factual allegations, construe those facts in the light most favorable to the plaintiff, and
draw reasonable inferences from them. Connelly, 809 F.3d at 786 n.2. Because Brown
is proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8
F.4th 182, 185 (3d Cir. 2021).
III
A
Title VII prohibits an employer from retaliating against an employee because
that employee “opposed any practice” made unlawful by Title VII or “made a charge,
testified, assisted, or participated in” a Title VII proceeding. 42 U.S.C. § 2000e-3(a). To
state a plausible claim for retaliation, Brown must allege facts to show (1) he engaged
in protected activity, (2) he later suffered an adverse employment action, and (3) there
was a causal link between the protected activity and the employer’s action. Connelly,
809 F.3d at 789.
1
Brown alleges a PATCO director reduced overtime for night shift custodians
because Brown emailed Rink about how “overtime was being distributed [among] the
custodians.” (Compl. ¶¶ 2, 9–11.) Brown fails to allege sufficient facts to support (at
least) two required elements of a retaliation claim: protected activity and causation.
First, an employee engages in protected activity if he “oppose[s]” an employment
practice that Title VII forbids. 42 U.S.C. § 2000e-3(a); Moore v. City of Philadelphia,
461 F.3d 331, 341 (3d Cir. 2006). An informal complaint may qualify as protected
activity if it “protest[s] what an employee believes in good faith to be a discriminatory
practice” made unlawful by Title VII. Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1085 (3d Cir. 1996). To determine whether a plaintiff complained about a
discriminatory practice under Title VII, the Court must focus on the “message” he
conveyed to his employer. Moore, 461 F.3d at 343.
Brown says he engaged in protected activity when he emailed Rink about
PATCO’s overtime practices. See (Compl. ¶¶ 2, 9–11) (alleging that PATCO reduced
overtime for night shift custodians “in retaliation” for his “concern about overtime and
how it was being distributed [among] the custodians”). Yet Brown’s email did not
oppose, or protest, something that Title VII proscribes—discrimination based on race,
color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(1). The email states that
night shift custodians were “being treated unfairly” because PATCO permitted morning
shift custodians to work overtime more than night shift custodians. (Email from Jason
L. Brown to John Rink at 7.) This is a “[g]eneral complaint[] of unfair treatment”
unconnected to race, color, religion, sex or national origin, so the email does not
“implicate an employment practice made illegal by Title VII.” Davis v. City of Newark,
417 F. App’x 201, 203 (3d Cir. 2011) (per curiam).
Second, even if Brown engaged in protected activity and later suffered an
adverse employment action in the form of overtime reduction, he fails to show a causal
link between the protected activity and the employer’s action. To establish causation,
Brown must show one of four things: (1) a “temporal proximity” between the protected
activity and adverse action that is “unusually suggestive of retaliatory motive,” (2) a
“pattern of antagonism” towards him after he sent his email, (3) inconsistencies in the
employer’s explanations for the adverse action, or (4) other facts from which the Court
could infer causation. Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 260 (3d Cir.
2017) (internal quotation marks and citations omitted); Connelly, 809 F.3d at 789, 793;
Petril v. Cheyney Univ. of P.A., 789 F. Supp. 2d 574, 581–82 (E.D. Pa. 2011).
Brown fails to plead sufficient facts to support any theory of causation. He does
not allege the specific temporal proximity between his email and the decision by the
PATCO director to reduce overtime for night shift custodians. He does not plead facts
showing that PATCO engaged in a pattern of antagonism after his email and before the
overtime reduction decision. He shows no inconsistent explanations by PATCO for the
decision to reduce overtime for night shift custodians. And he pleads no other
allegations from which the Court could infer causation.
2
Under his second retaliation theory, a PATCO director reduced overtime for
night shift custodians because Brown previously sued either PATCO or one of its
employees for discriminatory conduct. (Compl. ¶¶ 14, 17.) Brown does not allege
sufficient facts to support a causal link between his lawsuit and the overtime reduction
decision.
Brown arguably alleges sufficient facts to show protected activity and an adverse
employment action. A plaintiff has engaged in protected conduct if he “participated in”
a Title VII “proceeding.” 42 U.S.C. § 2000e-3(a). Brown claims he took “action against
[PATCO] in [the] past which may have contributed” to the decision by the PATCO
director to reduce overtime for night shift custodians. (Compl. ¶ 14.) And reading his
allegations liberally, he suggests he sued either PATCO or a PATCO employee for
discriminatory conduct made unlawful by Title VII. (Id. ¶¶ 14, 17.)
Yet even if Brown engaged in protected conduct by suing PATCO (or its
employee) for discriminatory conduct and later suffered an adverse employment action
in the form of overtime reduction, he fails to demonstrate a link between the lawsuit
and the overtime reduction decision. He states no details of his previous lawsuit: who
in particular he sued, when he sued, or why. He does not allege the temporal proximity
between the lawsuit and the decision to reduce overtime for night shift custodians. He
fails to allege facts showing that PATCO (or any of its employees) engaged in a pattern
of antagonism after he filed his lawsuit. And he pleads no other facts from which the
Court could infer that he lost overtime opportunities because of his lawsuit.
B
Brown next alleges PATCO subjected him to a hostile work environment
because, after he emailed Rink about overtime, morning shift custodians left trash for
night shift custodians to clean and a morning shift custodian stole cleaning supplies
from him. (Compl. ¶¶ 15, 21.) Title VII prohibits “the creation of a hostile work
environment” on the basis of an employee’s race or sex. Vance v. Ball State Univ., 570
U.S. 421, 427 (2013); Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005). To
state a plausible claim for hostile work environment, Brown must allege facts to show
(1) he suffered intentional discrimination because of his race or sex, (2) the
discrimination was severe or pervasive, (3) the discrimination detrimentally affected
him, (4) the discrimination would detrimentally affect a reasonable person in like
circumstances, and (5) the existence of respondeat superior liability. Mandel v. M&Q
Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).
Brown fails to state a plausible claim because he does not allege sufficient facts
to support at least three of these elements. First, he fails to show intentional
discrimination because of race or sex. Aside from his own subjective belief, no
allegations permit the inference that Brown suffered discriminatory harassment. He
fails to allege any facts suggesting that morning shift custodians left trash on the
ground for him to clean and stole from him because of his race or sex.
Second, Brown fails to allege facts which could establish that the harassment
was severe or pervasive. Title VII does not create a workplace “civility code.” Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quotation marks and citation omitted).
To succeed, Brown must show that his “work environment was so pervaded by
discrimination that the terms and conditions of employment were altered.” Vance, 570
U.S. at 427. The indignities that Brown claims to have suffered fall short of that bar.
He, again, offers two: morning shift custodians made his “work environment noticeably
trashy” and a morning shift custodian broke into his locker and stole cleaning supplies
from him. (Compl. ¶ 21.) These incidents do not reflect behavior that was physically
threatening, severe or humiliating; they instead reflect “ordinary tribulations” that
accompany social interactions in the workplace. Faragher, 524 U.S. at 788 (quotation
marks and citation omitted). Though they may have seemed offensive to Brown, they
simply do not paint a picture of an environment teeming with “extremely serious”
harassment that altered Brown’s entire working environment. Id.
Third, Brown fails to show respondeat superior liability. An employer may be
held liable for harassment by one of the victim’s non-supervisory coworkers in two
instances: (1) the employer failed to provide a reasonable avenue for complaint or (2)
the employer knew or should have known of the harassment and failed to take prompt
and appropriate remedial action. In re Tribune Media Co., 902 F.3d 384, 400 (3d Cir.
2018). Here, Brown premises his hostile work environment claim on conduct by
morning shift custodians—his non-supervisory coworkers. Yet he does not allege facts
to show that PATCO failed to provide an avenue for him to complain about their
behavior. Nor does he allege facts to show that PATCO knew or should have known
about their behavior and failed to take action.
IV
A court should grant a plaintiff leave to amend a complaint “when justice so
requires.” Fed. R. Civ. P. 15(a)(2). This rule expresses “a preference for liberally
granting leave to amend” unless “amendment would cause undue delay or prejudice, or
that amendment would be futile.” Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000).
Amendment is futile when “the complaint, as amended, would fail to state a claim upon
which relief could be granted.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1434 (3d Cir. 1997). The decision of whether to grant or deny leave to amend is within
the sound discretion of the district court. Cureton v. Nat’l Collegiate Athletic Ass’n, 252
F.3d 267, 272 (3d Cir. 2001).
Granting leave to amend would not cause undue delay or prejudice, and the
Court cannot say at this point that amendment would be futile. Brown may amend his
complaint if he can allege facts which could overcome the shortcomings identified in
this Memorandum.
An appropriate Order follows.
BY THE COURT:
/s/ Gerald J. Pappert
Gerald J. Pappert, J.