Connelly v. Lane Constr. Corp.

Citation809 F.3d 780
Decision Date11 January 2016
Docket NumberNo. 14–3792.,14–3792.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

809 F.3d 780

Sandra CONNELLY, Appellant

No. 14–3792.

United States Court of Appeals, Third Circuit.

Argued Sept. 15, 2015.
Filed: Jan. 11, 2016.

809 F.3d 783

John E. Stember, Esq., Emily E. Town, Esq., [Argued], Stember Cohn & Davidson–Welling, LLC, Pittsburgh, PA, Counsel for Appellant.

Samantha M. Clancy, Esq., [Argued], Maria Greco Danaher, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Pittsburgh, PA, Counsel for Appellee.

Christine J. Back, Esq. [Argued], Equal Employment Opportunity Commission, Washington, DC, Counsel for Amicus Appellant.

Before: FISHER, CHAGARES, and JORDAN, Circuit Judges.


JORDAN, Circuit Judge.

Sandra Connelly appeals the dismissal of the employment discrimination claims she brought against her former employer, Lane Construction Corporation ("Lane"). We disagree with the District Court's assessment that Connelly failed to plead plausible claims and, accordingly, will vacate the order of dismissal and remand for further proceedings.


A. Factual History1

Lane is a construction company operating in 20 states. In May 2006, it hired

809 F.3d 784

Sandra Connelly as a union truck driver at its Pittsburgh, Pennsylvania facility, and she worked during construction seasons—normally from March or April until October or November of each year—until near the close of the season in October 2010. During Connelly's tenure with the company, Lane employed seven union truck drivers at that location. Connelly ranked fifth in seniority and was the only woman. Since October 2010, Lane has employed no female truck drivers at its Pittsburgh facility.

Sometime after May 2007, and allegedly because Connelly had ended a romance with a man who also worked at Lane, her male co-workers began "curs[ing] at Connelly and belittl[ing] her on a daily basis." (App. 29.) Some male drivers refused to speak directly to her. In the summer of 2007, another Lane employee told Connelly that Connelly's former boyfriend, truck driver Mark Nogy, was making "increasingly frequent and disparaging" comments about her. (App. 29.) The employee went on to say that he had complained about Nogy's behavior to Charlie Ames, a Lane executive. Connelly herself told several supervisors at Lane about the hostile treatment she was experiencing. She called the company's Connecticut headquarters and, a day later, Ames and another Lane executive met with her to discuss the harassment problem. Following the meeting, Lane suspended Nogy for three days but did not discipline or warn any other Lane employees, who continued to harass and disparage Connelly.

In early 2009, Connelly learned that Lane employees could make job-related complaints through the company's "Ethics Line," which she called multiple times to report further harassment from Nogy, to make complaints about her male co-workers drinking on the job, and to report "discriminatory treatment due to her gender and her previous complaints about the hostile work environment." (App. 31.)

In or around May 2010, Lane foreman George Manning made an unwanted physical advance to Connelly, coming close to her and saying, "[O]ne day I'm going to kiss you." (App. 31.) Connelly backed away and said "No," and she reported the incident to the Ethics Line a few days later. (App. 31.) She also reported the incident to supervisor Jeremy Hostetler, requesting that he transfer her to another work site because she was now uncomfortable working with Manning. Hostetler expressed disbelief that Manning would "do something like that." (App. 32.) Although Hostetler told Connelly that he wanted to meet with her and Manning together, no such meeting occurred. After Connelly again called the Ethics Line about the situation, Hostetler agreed to transfer her to another job site, although it appears that Connelly continued to work from Lane's Pittsburgh facility. Connelly's relationship with both her supervisors and her male co-workers became "increasingly strained" throughout 2010, during which time she made numerous complaints to the Ethics Line and to local management at the Pittsburgh facility. (App. 32.)

In October 2010, Lane supervisor Jerry Schmittein became "incensed" at Connelly when she refused to drive a truck that had a flat tire and steering problems. (App. 32.) Schmittein "persisted in berating Connelly," despite her explanation that she could not safely operate the truck. (App. 32.) Connelly contacted Ames, who instructed her to leave the job site. A short time later, and despite her seniority, Connelly was laid off before the end of the

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construction season and before any of the other union truck drivers. Lane has never recalled her to work.

Lane did, however, recall Connelly's male truck driver co-workers in 2011, and it continues to employ them. In April or May of 2011, after Connelly saw several of her co-workers working at a job site, she repeatedly telephoned Ames to ask why she had not been recalled. Ames cited the bad economy and told her that no work was available. In one conversation, Ames told her that he would recall her if Lane "got more work." (App. 33.)

Connelly had observed that all six of her male truck driver co-workers were working for Lane, so she called Ames and asked why union drivers with less seniority than her had been recalled before she was. In Connelly's experience, between 2006 and 2010, Lane had always recalled truck drivers in order of seniority. Ames told Connelly that the truck driver with the least seniority had been permitted to return to work as a general laborer because "he needed to work." (App. 33.) Lane had not offered any such accommodation to Connelly. Ames also explained that the other driver with less seniority than Connelly had been recalled to operate what was known as the "tack" truck because Connelly did not have the requisite training to operate that type of vehicle. (App. 33.) Connelly asked why the most senior driver, who was the primary tack truck operator, was no longer driving that truck. Ames answered that that driver was the "senior man—he can choose what he drives." (App. 33.) However, Lane had not previously permitted truck drivers to choose their work assignment based on seniority, and the union's collective bargaining agreement provided that "[d]rivers in accordance with their qualifications and seniority shall be offered the highest rate classification of work but cannot choose their equipment or work assignments." (App. 33.) Connelly was qualified to operate—and routinely had operated—all of the trucks used by Lane other than the tack truck.

Connelly also observed non-union truck drivers working at Lane sites in the spring and summer of 2011. In addition, she saw Lane employing rental trucks from other companies and using Lane laborers to drive trucks. Prior to 2011, Lane had only resorted to that when no Lane drivers were available, and never when a Lane driver was waiting to be recalled.

B. Procedural History

On September 26, 2013, Connelly filed her original complaint in the United States District Court for the Western District of Pennsylvania, alleging claims of gender-based disparate treatment, sexual harassment, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA"). Lane responded by filing an answer along with a motion to partially dismiss the complaint. The Court dismissed as time-barred all but the retaliation claim, which related to Lane's failure to rehire Connelly in April 2011, but granted Connelly's request to file an amended complaint.

Connelly then filed her Amended Complaint, alleging separate counts of disparate treatment and retaliation under both Title VII and the PHRA. Lane promptly moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) and, after briefing, the District Court granted that motion. The Court held that, with respect to her disparate treatment claims, Connelly had "failed to plead a sufficiently plausible inference that she was not rehired due to her gender."

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(App. 12.) Similarly, the Court held that the Amended Complaint failed to allege sufficient facts to establish a plausible claim of retaliation. It also denied Connelly's request to file a second amended complaint. The District Court thus dismissed all of Connelly's claims with prejudice. She timely appealed.


Connelly asserts two claims of error. First, she says that the District Court erred in holding that her Amended Complaint failed to meet the plausibility standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Second, she argues that the District Court should have granted her leave to further amend the Amended Complaint. Because we agree with her on the first point, we need not reach the second.3

A. Standards for Pleading Sufficiency


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