PHILADELPHIA – A former cleaner and clerk at a Bucks County-based adult establishment who claimed that he was discriminated against and terminated from his employment, based upon his designation as a cisgender male, has retained his federal law claim and, for the moment, lost a claim brought under the Pennsylvania Human Relations Act.
David McCreary of Lansdale first filed suit in the U.S District Court for the Eastern District of Pennsylvania on Nov. 6, 2023 versus Adult World, Inc. of Quakertown.
“Plaintiff is a biological male. In or around January 2023, defendant hired plaintiff in the position of Cleaner/Clerk. Plaintiff was well-qualified for his position and performed well. Since the start of plaintiff’s employment with defendant, Kevin Krupiewski, District Manager, has hired two transgender Clerks (DeDe Santiago and Courtney Robinson) at defendant’s Quakertown location. Throughout plaintiff’s employment, he has complained of disparate treatment between the transgender and non-transgender employees at defendant,” the suit said.
“In or around April 2023, plaintiff complained to Krupiewski that Santiago and Robinson frequently arrived late to work and kept the store open past store hours. Krupiewski refused to address plaintiff’s complaints, stating that he would not issue Santiago or Robinson write-ups. In fact, Krupiewski promoted Robinson to Store Manager within 90-days of the start of her employment. Plaintiff, who had worked at defendant longer, did not get offered a promotion within 90 days of his employment. In contrast, in or around March 2023, a customer made a false complaint about Stacy Yoder (biological female), Store Manager.”
The suit continued that Krupiewski “immediately wrote Yoder up for this complaint, despite the fact that the plaintiff, as a witness to the customer interactions, provided a statement disproving the complaint.”
“On or around June 4, 2023, Krupiewski approached plaintiff as he was opening the store in the morning. Krupiewski abruptly terminated plaintiff’s employment. Krupiewski stated the reason for termination was that plaintiff put a drape over the fire exit. Importantly, plaintiff had done this so that children could not look into defendant’s store window. Plaintiff had not been told to remove this drape prior. Krupiewski also alleged that plaintiff kept a tip jar on the counter. Krupiewski accused plaintiff of stealing money from the store. Prior to this day, plaintiff had not been told by anyone at defendant that there could not be a tip jar on the counter,” the suit stated.
“That same day, Krupiewski terminated Yoder’s employment as well. Importantly, at that time, Yoder was the only other non-transgender employee that worked at defendant’s Quakertown location. A month prior, Krupiewski had terminated the only other non-transgender employee, Robert Warthington (biological male). Following plaintiff and Yoder’s same-day termination, Krupiewski only kept transgender employees on the staff at defendant’s Quakertown location. Following plaintiff’s termination, plaintiff contacted Tamika LNU, Payroll, and Sharon LNU, Human Resources. Tamika and Sharon stated that they were not aware of plaintiff’s termination and defendant did not have a termination letter prepared for him. It is plaintiff’s belief that he was discriminated against due to his gender in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act.”
The defendant motioned to dismiss the complaint on March 4, seeking that dismissal to be with prejudice – for a supposed failure to allege any facts that would allow the Court to infer gender discrimination and that the plaintiff allegedly failed to exhaust available administrative remedies under the PHRA.
“To establish a prima facie claim of employment discrimination, plaintiff must ‘show: 1) Membership in a protected class; 2) Qualification for the position; 3) An adverse employment action taken against him despite being qualified; and (4) ‘The action occurred under circumstances that could give rise to an inference of intentional discrimination.’ Here, plaintiff fails to satisfy the fourth element: That circumstances surrounding his termination support an inference of gender discrimination or discriminatory animus. For purposes of this motion, defendant does not dispute that plaintiff pled the first three prima facie elements, as plaintiff alleges that he is a male, that he was qualified for his position, and that he was terminated from his position. However, even accepting all of plaintiff’s allegations as true and construing the complaint in a light most favorable to plaintiff, there is nothing here to support plaintiff’s conclusion that circumstances exist giving rise to an inference of discrimination. As this Court has explained, there are two avenues to adequately plead the fourth element of gender discrimination. One avenue is for plaintiff to allege that similarly-situated employees, outside of his protected class, were treated more favorably. However, plaintiff may not selectively choose some comparators while ignoring others. Alternatively, plaintiff may adequately allege discriminatory animus by alleging facts showing a causal nexus between the employee’s membership in a protected class and the adverse employment action,” according to the dismissal motion.
“Here, plaintiff fails on both fronts. First, plaintiff alleges that District Manager Krupiewski, acting on behalf of defendant, terminated Stacy Yoder, a biological female, on the same day as plaintiff. By alleging that ‘plaintiff is a member of protected classes [sic] in that he is a male,”, while conceding that a biological female was terminated on the same day, plaintiff fails to show how similarly situated employees outside of his protected status as a male were treated more favorably. Both groups of employees were treated the same way by being terminated on the same day. Second, plaintiff has not shown any causal nexus between his termination and his status as a male employee. Plaintiff merely states that Krupiewski informed plaintiff that he was terminated because he placed a drape over the fire exit and stole money from defendant’s store by keeping a tip jar at the counter. Though plaintiff suggests that he was not warned about hanging a drape or keeping a tip jar on the counter prior to his termination, these facts provide no causal link between his protected status, and his termination. Because plaintiff has failed to allege any facts that would allow this Court to infer gender discrimination, this Court should dismiss plaintiff’s claims against defendant.”
The motion added that the plaintiff’s status as a “non-transgender employee” is not a category protected by Title VII or the PHRA (since it does not involve race, color, religion, sex, or national origin) and that he allegedly failed to exhaust administrative remedies under the PHRA by not filing a timely claim with the Pennsylvania Human Relations Commission, and instead going straight to litigation.
On March 18, plaintiff counsel responded to the dismissal motion, charging that McCreary properly pled an instance of gender-based discrimination – and that if “discrimination based on transgender status necessarily entails discrimination-based on sex, then so too must discrimination based on cisgender status.”
The filing argued that “Treating individuals differently based on their gender identity is inherently discriminatory based on sex as it is tolerating certain traits based on sex and not tolerating other traits based on sex” and “if an employer discriminates against cisgendered individuals and not transgender individuals, it is penalizing employees for being cisgender and identifying with the same sex identified as birth, which is discrimination based on sex.”
“Plaintiff pleads he is a member of a protected class, in that he is male. He pleaded that he was well qualified to perform the duties of the position and performed them well without indication of poor performance or discipline until his termination. Plaintiff pleaded an adverse employment action, which was his termination. What ultimately remains is the question of whether plaintiff adequately pleads circumstances giving rise to an inference of discrimination. Plaintiff did so in his complaint. Plaintiff pleaded that Krupiewski and defendant terminated all cisgender men and the one cisgender woman working at the Quakertown location within a two-month period, while treating the two transgender employee comparators more favorably,” the response stated.
“As discussed in Bostock v. Clayton County, it does not matter if an employer treats all homosexual or transgender employees the same: there is no way to separate discrimination based on sexual orientation or being transgender without discriminating against that person for displaying certain traits based on their sex. Discrimination based on transgender status necessarily entails discrimination based on sex as ‘the first cannot occur without the second.’ The same is true for cisgender individuals: discrimination against individuals based on them being cisgender is inherently based on sex. As such, plaintiff’s claims of discrimination based on sex are sufficiently pleaded to defeat a motion pursuant to Rule 12(b)(6). Defendant’s motion should be denied.”
The response further argued that the plaintiff’s failure to exhaust administrative remedies under the PHRA is “not fatal.”
“Plaintiff’s failure to exhaust administrative remedies under the PHRA is not fatal. As plaintiff’s administrative remedies under the PHRA will be exhausted in the course of this litigation, and no later than July 5, 2024, if the Court elects to dismiss plaintiff’s PHRA claims for failure to exhaust administrative remedies, it should do so without prejudice as amendment will cure the deficiency. Instead, plaintiff proposes holding the motion to dismiss the PHRA claim for failure to exhaust administrative remedies in abeyance until July 5, 2024 as dismissing and requiring amendment at this juncture would be a waste of judicial resources. As both the PHRA and Title VII claims require discovery and analysis of the same facts, it would be nothing more than formulaic. Additionally, considering that other Courts in this district have considered an EEOC right to sue sufficient to defeat a motion to dismiss for failing to exhaust administrative remedies under the PHRA, it would be unnecessary to grant a motion to dismiss on this ground,” the response continued.
“Alternatively, instead of dismissal, this Court could instead permit plaintiff to amend his complaint or dismiss his PHRA claims without prejudice to refiling his PHRA claims on or after July 15, 2024, which would cure any alleged failure to exhaust administrative remedies. Courts in this judicial district have regularly ruled that a prematurely-filed complaint can be cured of failing to exhaust administrative remedies if the complaint is amended after the one year limitation. In the event that this Court does determine dismissal is appropriate for failure to exhaust administrative remedies under the PHRA, plaintiff should be permitted to amend his complaint and reassert the PHRA claims on or after July 5, 2024 without necessitating further leave of this Court. As it will have been more than one-year since the charge was filed, amendment would not be futile and would cure the alleged deficiency.”
UPDATE
In an April 4 memorandum opinion, U.S District Court for the Eastern District of Pennsylvania Judge Michael M. Baylson partially denied and partially granted the dismissal motion – retaining the Title VII claim, but dismissing the PHRA claim without prejudice and providing the plaintiff leave to amend on that point.
“Firing someone for being a cisgender male – that is, someone assigned as male at birth and who continues to identify as male – necessarily involves firing them, ‘in part because of sex.’ Likewise, firing someone for being a cisgender female – that is, someone assigned to be female at birth and who continues to identify as female – also necessarily involves firing them, ‘in part because of sex.’ Accordingly, defendant’s argument that defendant’s decision to simultaneously fire Yoder, which plaintiff alleges to also be based on sex, cannot unilaterally undermine plaintiff’s Title VII claim,” Baylson said.
“The closer question here is whether the complaint has actually plausibly raised an inference of discriminatory animus. Ultimately, the Court concludes that it does. As noted, plaintiff may prevail by showing that (1) similarly situated employees, outside of the protected class, were treated more favorably, or (2) a causal nexus between his termination and his sex. Plaintiff’s complaint satisfies at least this first prong. Most notably, plaintiff alleges that he complained to defendant that plaintiff’s transgender co-workers ‘frequently arrived late to work and kept the store open past the operating hours,’ and yet that defendant never disciplined them. To the contrary, one co-worker was promoted on a faster timeline than plaintiff. By contrast, plaintiff was allegedly terminated – without warning – for a first-time infraction. Likewise, defendant immediately disciplined Yoder, despite a fellow employee (plaintiff) casting doubt on the validity of the underlying customer complaint. In the Court’s view, these dissimilarities – with respect to both discipline and advancement opportunities – raises the requisite ‘inference of discriminatory animus,’ at least for purposes of a motion to dismiss.”
As to the PHRA claim, Baylson found it was not pled to a sufficient degree to survive a motion to dismiss at this stage, and that remedies under the PHRA were not exhausted.
“Before filing a PHRA suit, a plaintiff must file a complaint with the Pennsylvania Human Relations Commission and exhaust the remedies provided for by the PHRA. Once the complaint is filed, the PHRC has one year of ‘exclusive jurisdiction’ within which to attempt conciliation. Defendant argues, and plaintiff does not contest, that if a plaintiff brings suit for an alleged PHRA violation during the PHRC’s one year conciliation period, then plaintiff has not exhausted his remedies as required by the PHRA. Defendant is correct,” Baylson stated.
“In such a scenario, a plaintiff is barred from asserting a PHRA claim. Plaintiff filed his complaint in this case approximately four months after dual-filing his administrative complaint with the EEOC and PHRC. In so doing, plaintiff has ‘refused to give the PHRC the opportunity to resolve [his] complaint through conciliation and failed even to make a good faith attempt to exhaust her remedies as required by the PHRA.’ Thus, plaintiff’s PHRA claim is not properly before this Court.”
For a count of gender discrimination in violation of Title VII of the Civil Rights Act of 1964, the plaintiff is seeking the following relief:
• Compensatory damages;
• Punitive damages;
• Liquidated damages;
• Emotional pain and suffering;
• Reasonable attorneys’ fees;
• Recoverable costs;
• Pre- and post-judgment interest;
• An allowance to compensate for negative tax consequences;
• A permanent injunction enjoining defendant, its directors, officers, employees, agents, successors, heirs and assigns, and all persons in active concert or participation with it, from engaging in, ratifying, or refusing to correct, employment practices which discriminate in violation of Title VII and the PHRA.
• Order defendant to institute and implement, and for its employees, to attend and/or otherwise participate in, training programs, policies, practices and programs which provide equal employment opportunities;
• Order defendant to remove and expunge, or to cause to be removed and expunged, all negative, discriminatory, and/or defamatory memoranda and documentation from plaintiff’s record of employment, including, but not limited to, the pre-textual reasons cited for its adverse actions, disciplines and termination; and
• Awarding extraordinary, equitable and/or injunctive relief as permitted by law, equity and the federal statutory provisions sued hereunder, pursuant to Rules 64 and 65 of the Federal Rules of Civil Procedure.
The plaintiff is represented by David M. Koller of Koller Law, in Philadelphia.
The defendant is represented by Alexander Nemiroff and Ashley Blair Friedman of Gordon Rees Scully Mansukhani, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-04332
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com