Guess v. Phila. Hous. Auth.

• Decision Date: 24 January 2019
• Docket Number: CIVIL ACTION No. 18-2948
• Parties: Shaun GUESS, Plaintiff, v. PHILADELPHIA HOUSING AUTHORITY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

354 F.Supp.3d 596

Shaun GUESS, Plaintiff,

v.PHILADELPHIA HOUSING AUTHORITY, Defendant.

CIVIL ACTION No. 18-2948

United States District Court, E.D. Pennsylvania.

Filed January 24, 2019

Justin F. Robinette, Justin F. Robinette, Esquire, Philadelphia, PA, Plaintiff.

Catherine S. Straggas, Margolis Edelstein, Kelsey Beerer, Buchanan Ingersoll & Rooney PC, Philadelphia, PA, for Defendant.

MEMORANDUM

Gerald Austin McHugh, United States District Judge

This case involves a claim of sex discrimination under Title VII and raises pressing questions about the scope of that statute. The Third Circuit has held that sexual orientation does not form the basis for a claim of sex discrimination under Title VII. Plaintiff invites me to hold otherwise, effectively contravening that precedent. Despite the powerful appeal of Plaintiff's arguments, it is not my place to "overrule" a higher court. Accordingly, although I reject Defendant's argument that Plaintiff failed to exhaust administrative remedies, the controlling law in this circuit does not allow his hostile work environment claim, which is based solely on sexual orientation discrimination. I must dismiss Count I and Count II, to the extent that it is based on sexual orientation discrimination, though such dismissal is without prejudice.

I. Factual Background

Plaintiff Shaun Guess worked as an employee of Defendant, the Philadelphia Housing Authority, until August 31, 2017. Plaintiff served as a Family Self Sufficiency (FSS) Coordinator beginning in November 2014, and he alleges that he was compensated less per year than three similarly situated female FSS Coordinators. Plaintiff made inquiries with supervisors about the reason for the pay disparity, but his concerns went unaddressed.

Throughout his employment with Defendant, Plaintiff claims that he was "routinely assigned to lift boxes, carry water jugs, pick up bookbags, or perform more manual, labor-intensive tasks, instead of the female employees." Pl.'s First Am. Compl. 4, ECF No. 14. In vernacular terms, Plaintiff was asked to perform stereotypically male tasks. In one such instance, on July 26, 2017, a supervisor told Plaintiff to pick up heavy bookbags. When Plaintiff objected, the supervisor called Plaintiff a "fucking faggot" (hereinafter "f---ing f-----"). Id. at 5. Plaintiff is not in fact homosexual.

That same day, Plaintiff approached the Director and Executive Vice President, Mr. Myles, about the incident. Myles purportedly asked Plaintiff whether he really wanted to file a complaint and told him to be sure that was what he wanted to do. The following day, Plaintiff wrote a memo regarding the incident, which he sent to Myles. Plaintiff met with Human Resources personnel on August 27, 2017, and they informed him that, while his complaint may establish a violation of Defendant's General Regulations of Behavior, it did not establish an EEO violation. On September 8, 2017, after Plaintiff had terminated his employment with Defendant, he received a formal letter confirming this assessment.

Mr. Guess received text messages from the supervisor who called him a f---ing f----- twice after he reported the incident. On August 2, 2017, she sent a message suggesting that Plaintiff could have talked to her personally about the incident and warning him to watch who he spoke to. On September 6, 2017, she expressed shock at his handling of the situation. The message stated in part, "[a]ll of this over something you started...yeah I slipped and said you were acting a certain way and I apologized for it but for you to go this far!" Id. at 6. She also threatened to reveal untrue information about Plaintiff and stated, "[y]ou're not even gay to be that hurt that I said your [sic ] acting that way...I'm beyond hurt!" Id. at 7.

On or around his last day of employment with Defendant, August 31, 2017, another female coworker approached Plaintiff and stated, in reference to the incident on July 26, 2017, "I don't know if you are or you aren't." Id. at 6. The same female coworker had, previously in 2017, said, "[g]irl, please" and "[g]irl" to Plaintiff. Id. at 4. He asked her not to call him a girl, and that incident also led to the involvement of Human Resources. Plaintiff ultimately resigned.

On February 26, 2018, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Def.'s Mot. Dismiss, Ex. B, ECF No. 16. Plaintiff marked "sex" as the form of discrimination and noted the latest date of discrimination as July 27, 2017. Id. The section containing "the particulars" stated:

Mr. Guess was hired by the Philadelphia Housing Authority (PHA) on or about June 19, 2014. During Mr. Guess' employment with PHA he transitioned to a FSS Coordinator. Mr. Guess was compensated significantly less than similarly situated female FSS Coordinators. Also, Mr. Guess was routinely assigned to more manual labor and tasks, despite other female FSS Coordinators being ready, willing and available for those same labor intensive and less desirable tasks. (disparate treatment-sex/gender (a) pay and (b) job assignments). On July 27, 2017, a PHA manager called Mr. Guess a "fucking faggot" in front of his co-workers. PHA's treatment of Mr. Guess was severe and discriminatory, on August 31, 2017, Mr. Guess terminated his employment with PHA.

Accordingly, Complainant suffered discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Equal Pay Act.

Id. Plaintiff received a Notice of Right-to-Sue from the EEOC and timely instituted this civil action. Defendant now moves to dismiss Count I of Plaintiff's First Amended Complaint in its entirety for failure to exhaust administrative remedies or for failure to state a claim and Count II, to the extent that it alleges discrimination based on perceived sexual orientation, for failure to state a claim. I address these arguments in turn.

II. 12(b)(1) Failure to Exhaust

Defendant first argues that Count I should be dismissed under Federal Rule of Civil Procedure 12(b)(1) because Plaintiff failed to properly exhaust his administrative remedies. I disagree.

Rule 12(b)(1), as amplified by Kehr Packages, Inc. v. Fidelcor, Inc. , 926 F.2d 1406, 1408-09 (3d Cir. 1991), provides the standard for Defendant's facial jurisdictional challenge. See Gould Elec., Inc. v. United States , 220 F.3d 169, 176, 178 (3d Cir. 2000). Under the well-established rule of Pension Benefit Guar. Corp. v. White Consol. Indus., Inc. , 998 F.2d 1192, 1196 (3d Cir. 1993), I will consider both the complaint and the EEOC charge.

Before bringing a civil action under Title VII, a plaintiff must have filed a charge of discrimination with the EEOC. Hicks v. ABT Assocs., Inc. , 572 F.2d 960, 963 (3d Cir. 1978). This requirement serves to give notice to the party charged with violating Title VII and to provide an opportunity for resolution short of litigation. Glus v. G.C. Murphy Co. , 562 F.2d 880, 888 (3d Cir. 1977). The initial charge filed with the EEOC then determines the parameters of subsequent civil litigation. "Once a charge of some sort is filed with the EEOC,...the scope of a resulting private civil action in the district court is ‘defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination....’ " Hicks , 572 F.2d at 966 (quoting Ostapowicz v. Johnson Bronze Co. , 541 F.2d 394, 398-99 (3d Cir. 1976) ). The Third Circuit has noted, however, that this jurisdictional requirement should be construed liberally. Glus , 562 F.2d at 887-88 ; EEOC v. Kronos Inc. , 620 F.3d 287, 300 (3d Cir. 2010).

Defendant contends that the allegations in Plaintiff's First Amended Complaint do not fall within the scope of the EEOC investigation that could have been expected to grow from the charge Plaintiff filed with the agency. Specifically, Defendant argues that Plaintiff's charge did not provide sufficient notice of allegations concerning sexual orientation discrimination or of any hostile work environment claim. I find no such defects in the charge.

The allegations related to sexual orientation discrimination are well within the scope of the charge. The Plaintiff recounted an incident in which a supervisor directed a homophobic slur at him. Such facts would put any reasonable defendant on notice of claims involving sexual orientation, perceived or otherwise. Such allegations certainly fall within the "scope of the EEOC investigation which can reasonably be expected to grow out of the charge." Hicks , 572 F.2d at 966. This is particularly true because the EEOC recognizes sexual orientation discrimination as a form of sex discrimination under Title VII, see Baldwin v. Foxx , EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5 (EEOC July 15, 2015), and has previously investigated and litigated sex discrimination claims based on sexual orientation discrimination. See EEOC v. Scott Med. Health Ctr., P.C. , 217 F.Supp.3d 834, 836 (W.D. Pa. 2016). None of the allegations in Plaintiff's First Amended Complaint are beyond the scope of an EEOC investigation based on Plaintiff's charge.

With respect to the hostile work environment claim, the charge again sufficiently supported Plaintiff's allegations. Plaintiff's failure to mark the space for "continuing action" when he completed the form in February 2018 does not prevent the claim.¹ The failure to check a particular box on a charge form does not alone preclude the assertion of a claim, see Hicks , 572 F.2d at 966-67 ; Lowenstein v. Catholic Health East , 820 F.Supp.2d 639, 645 (E.D. Pa. 2011), and a hostile work environment claim does not necessarily require a "continuing action" because such allegations may be based on severe or pervasive conduct. See Moody v. Atlantic City Bd. of Educ. , 870 F.3d 206, 213 (3d Cir. 2017). Plaintiff here alleged facts about his work environment beyond those related to compensation discrimination, including routine—i.e. regular or continuing—sex discrimination in job assignments and an...