642 Fed.Appx. 152 (3rd Cir. 2016), 15-1544, Burgess v. Dollar Tree Stores, Inc.

Docket Nº:15-1544
Citation:642 Fed.Appx. 152
Opinion Judge:JORDAN, Circuit Judge.
Party Name:DOREEN BURGESS; RICHARD BURGESS, indiv & h/w, Appellants v. DOLLAR TREE STORES, INC.; RANDI FREEMAN; JOHN DOES 1-10
Attorney:For Doreen Burgess, Plaintiff - Appellant: Graham F. Baird, Esq., Matthew B. Weisberg, Esq., Weisberg Law, Morton, PA. For RICHARD BURGESS, indiv & h/w, Plaintiff - Appellant: Matthew B. Weisberg, Esq., Weisberg Law, Morton, PA. For Dollar Tree Stores, Defendant - Appellee: Paul L. Adams, Esq., J...
Judge Panel:Before: JORDAN, VANASKIE, and SHWARTZ, Circuit Judges. JORDAN, Circuit Judge.
Case Date:February 09, 2016
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 152

642 Fed.Appx. 152 (3rd Cir. 2016)

DOREEN BURGESS; RICHARD BURGESS, indiv & h/w, Appellants

v.

DOLLAR TREE STORES, INC.; RANDI FREEMAN; JOHN DOES 1-10

No. 15-1544

United States Court of Appeals, Third Circuit

February 9, 2016

Submitted Under Third Circuit L.A.R. 34.1(a) January 26, 2016.

NOT PRECEDENTIAL

Editorial Note:

This opinion is not regarded as Precedents which bind the court under Third Circuit Internal Operating Procedure Rule 5.7. (See Federal Rule of Appellate Procedure Rule 32.1)

On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 2-14-cv-1727). District Judge: Hon. Stewart Dalzell.

For Doreen Burgess, Plaintiff - Appellant: Graham F. Baird, Esq., Matthew B. Weisberg, Esq., Weisberg Law, Morton, PA.

For RICHARD BURGESS, indiv & h/w, Plaintiff - Appellant: Matthew B. Weisberg, Esq., Weisberg Law, Morton, PA.

For Dollar Tree Stores, Defendant - Appellee: Paul L. Adams, Esq., Julie A. Donahue, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, Philadelphia, PA.

For Randi Freeman, Defendant - Appellee: Julie A. Donahue, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, Philadelphia, PA.

Before: JORDAN, VANASKIE, and SHWARTZ, Circuit Judges. JORDAN, Circuit Judge.

Page 153

OPINION[*]

JORDAN, Circuit Judge.

Doreen Burgess appeals an order of the United States District Court for the Eastern District of Pennsylvania dismissing her claims of unlawful employment discrimination. We will affirm.

I. Background1

Doreen Burgess was hired by Dollar Tree Stores, Inc. (" Dollar Tree" ) in December of 2010 and was promoted to the position of assistant manager soon thereafter. In January 2012, the store brought in Randi Freeman as Burgess's new supervisor. Burgess argues that Freeman engaged in sexual harassment and religious discrimination from January 2012 until her termination a month later. Specifically, Burgess alleges that Freeman refused to sell " testimonial gum" 2 in the store (App. at 62a), and told Burgess that, if Burgess wore her necklace with a cross pendant to work again, Freeman would " rip it off" her neck ( id. at 63a). Freeman also allegedly touched Burgess's hair, told her it was soft, and asked if she would ever " go to the other side," (which she took as a sexual advance) ( id. at 62a), and she told Burgess that she wanted to transfer her so that she did not become " like another Cathy," an employee who Freeman allegedly did not like ( id. at 63a). Freeman also fired a friend of Burgess's, which Burgess understood as indirect retaliation against her. Burgess believed that other employees had called the corporate hotline to complain about Freeman's behavior. Finally, Burgess alleges that Freeman " set [her] up" to get fired by telling her to show up for work at a time she had not been scheduled to work.3 ( Id. at 65a.)

In March 2014, Burgess filed this suit in the Court of Common Pleas of Philadelphia County. Dollar Tree removed the case to the District Court on the basis of

Page 154

federal question jurisdiction under 28 U.S.C. § 1331. Burgess's initial complaint alleged violations of 42 U.S.C. § § 2000e et seq. (" Title VII" ) for religious and sexual orientation discrimination and retaliation, analogous violations of the Pennsylvania Human Relations Act (" PHRA" ), and loss of consortium. Dollar Tree moved to dismiss all but the retaliation claim under Federal Rule of Civil Procedure 12(b)(6), at which time Burgess filed an amended complaint. Dollar Tree again moved to dismiss the Title VII and PHRA discrimination claims4 as well as the loss of consortium claim. The District Court granted that motion. Burgess moved for reconsideration of the District Court's dismissal and its denial of Burgess's request to amend the complaint a second time. The District Court rejected both motions. In January of 2015, Dollar Tree moved for summary judgment on the remaining retaliation claim. That motion was granted, concluding the case in the District Court.

This timely appeal followed.

II. Discussion5

Although Burgess brought numerous claims in the District Court, her appeal addresses only a single contention -- that the District Court erred in dismissing her hostile work environment claim against Dollar Tree under Title VII and the PHRA.6 Our review of the order of dismissal is plenary. Kaymark v. Bank of Am., N.A., 783 F.3d 168, 174 (3d Cir. 2015). In evaluating a motion to dismiss, we consider only the complaint, accepting factual allegations as true and drawing all reasonable inferences in favor of the plaintiff. Id. " [W]e are not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc) (internal quotation marks omitted). " To survive a motion to dismiss, a complaint must contain sufficient factual allegations, taken as true, to 'state a claim to relief that is plausible on its face.'" Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012)...

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