Fortes v. Boyertown Area Sch. Dist.
| Decision Date | 18 July 2014 |
| Docket Number | CIVIL ACTION No. 12-6063 |
| Parties | BRENDA FORTES, Plaintiff, v. BOYERTOWN AREA SCHOOL DISTRICT, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Pro se plaintiff Brenda Fortes brings this employment discrimination suit against her current employer Boyertown Area School District under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and related state law. She claims Boyertown has discriminated against her based on race, color, gender, sex, age, and disability. Boyertown moves to dismiss her claims. For the reasons stated below, I will grant the motion in part and deny it in part.
Brenda Fortes is a sixty-five-year-old African American woman. Since the fall of 1993, she has worked as an English teacher at Boyertown High School. She was the first African-American teacher employed by the Boyertown School District in over a decade at her original time of hire and is one of two African-American teachers currently working for the School District.
Ms. Fortes suffers from Post-Concussive Syndrome, which began in 2004 when she was injured breaking up a fight between two students. As a result of that incident, Ms. Fortes suffered injury to her head, neck, and hip and experienced trauma to her head. Her disability substantially limits her ability to maintain balance, causes dizzy spells and migraines, makes her sensitive to bright light, and make her anxious in large gatherings or crowded/cramped areas. Ms. Fortes filed a worker's compensation claim as a result of this injury. In August 2010, Ms. Fortes informed the defendant that she would need reasonable accommodations for her disability in the 2010-2011 school year.2 Both her primary care doctor and her neurologist recommended that, among other things, the plaintiff be given a room with balanced artificial and natural light, allowed extended preparation time, and excused from non-essential large gatherings.3
In June 2010, Ms. Fortes received a partial "Unsatisfactory evaluation." As a result, she was placed on a "Professional Improvement Plan" by Robert Scoboria, Assistant Superintendent of Administration for the defendant, and by Brett Cooper, Principal of Boyertown High School, in August 2010. The impetus for the plan was allegedly due to "a long history of inappropriate comments." Scoboria and Cooper, both white males, allegedly did not provide any specific examples of these allegations andinformed Ms. Fortes that the plan would be enforced and documented whether she signed it or not.
In September 2010, Scoboria and Cooper allegedly informed Ms. Fortes that she was not permitted to communicate with or contact the parents of her students. On October 7, 2010, Ms. Fortes intercepted a note being passed between two students, in which she was referred to as a "damn nigger." The students received a couple of days of in-school suspension. Ms. Fortes was not permitted to communicate with their parents about the incident.
On October 28, 2010, a student threw a marker, which struck Ms. Fortes' head. As a result, she was thrown off balance and had difficulty seeing. The student was subsequently removed from her classroom.4 The following day, the student returned to Ms. Fortes' classroom and asked her if she was going to press charges. When Ms. Fortes responded, "Yes, most certainly," the student replied, "Fuck you, bitch [sic]" and stormed out of the room. The student received a one-day in-school suspension.
In addition, Ms. Fortes alleges that she was "regularly subjected to repeated criticism in regards to my performance and interaction with students and parents" and that she had made other complaints about aggressive students and the school's security, which the defendant failed to address.
In December 2010, the defendant presented Ms. Fortes with a "Transition and Separation and Release Agreement," requesting that she resign, release all claims, andreceive a private settlement. Ms. Fortes refused, saying that she had never requested a "settlement." Weeks before being presented with this agreement, she alleges that she had informed Cooper that she planned to work until age 67.
On January 24, 2011, Stephen Katch, Assistant to the Superintendent for Human Resources, informed Ms. Fortes that she was reassigned from her role as English teacher to the role of Library Research Coordinator. Ms. Fortes claims that this action was adverse because it was isolating and "demeaning," caused her to lose her classroom and be moved into a "cramped space without natural lighting and with constant large gatherings," and caused her to be "treated as if [she did] not exist." Ms. Fortes claims that this action was taken in retaliation for her not accepting the separation and release agreement and for her opposition to how the defendant handled students who were aggressive towards her.
On March 16, 2011, Ms. Fortes filed dually a complaint with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Rights Commission (PHRC).Though it is not entirely clear from the complaint, it appears that Ms. Fortes is asserting race, color, gender/sex, disability, and age discrimination claims under Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Rights Act (PHRA). She also asserts what appears to be a claim for defamation. This is the second Title VII actionbased on racial discrimination that the plaintiff has filed against the school district.5 The plaintiff received her right-to-sue letter on July 20, 2012.
On October 18, 2012, Ms. Fortes filed a petition to proceed in forma pauperis (IFP) in this court.6 I denied this petition on October 26, 2012.7 In this denial, she was instructed to file her complaint with the filing fee within thirty (30) days.8 Ms. Fortes then filed her complaint with her filing fee on November 13, 2012.9 The complaint was dated and signed on October 12, 2012. At the same time, the plaintiff requested that counsel be appointed.10 On February 19, 2013, the summons was returned as being executed on January 30, 2013.11 On February 20, 2013, the defendant filed a motion to dismiss under Rule 12(b)(5) and 12(b)(6).
On February 28, 2013, I granted the plaintiff's request for appointment of counsel and directed the Clerk of Court to make her case available on the Civil Rights Panel.12 After eight months, no attorney had taken the case. On October 29, 2013, I ordered the plaintiff to secure her own counsel or answer the defendant's motion to dismiss pro sewithin thirty (30) days. On December 4, 2013, the plaintiff submitted a pro se answer in letter form.13
Ms. Fortes claims that white teachers and/or non-disabled teachers are treated more favorably than she because they are not subject to racial slurs, restrictions by the defendant in speaking to parents, nor were given a separation of employment agreement. She claims these actions detrimentally affected her because she was removed from her assignment as an English teacher and the harassment she experienced caused her physical and mental anguish.
The defendant moves to dismiss all claims under 12(b)(5) for insufficient service of process and 12(b)(6) for failure to state a claim.
Proper service of process is a pre-requisite to the court's personal jurisdiction over a defendant. Lampe v. Xouth, Inc., 952 F.2d 697, 700-01 (3d Cir.1991). Therefore, it must be decided at the onset of a case. Lampe, 952 F.2d at 701. In a motion to dismiss under Rule 12(b)(5), "the party asserting the validity of service bears the burden of proof on that issue." Grant Entm't Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993). That party must do so by a preponderance of the evidence using affidavits, depositions, and oral testimony. State Farm Mut. Auto. Ins. Co. v. Tz'doko V'Chesed of Klausenberg, 543 F.Supp.2d 424, 428 (E.D. Pa. 2008)(citation omitted).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint.14 Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks Cnty. Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which she bases her claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise areasonable expectation that discovery will reveal evidence of" those elements. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).
A court "may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the...
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