Rippy v. Phila. Dep't of Pub. Health, CIVIL ACTION NO. 19-1839

Decision Date30 September 2019
Docket NumberCIVIL ACTION NO. 19-1839
PartiesLATOYA RIPPY v. PHILADELPHIA DEPARTMENT OF PUBLIC HEALTH, et al.
CourtU.S. District Court — Eastern District of Pennsylvania
MEMORANDUM

KEARNEY, J.

An African American female employee working in an alleged joint city/private initiative claiming a supervising federal employee sexually harassed her and her private employer's supervisors then retaliated by adversely changing her job roles after she complained must carefully parse her discrimination and civil rights claims. The city's control over all aspects of the private employer's work staff may allow a finding the city is a joint employer for discrimination remedies. But this joint employer finding does not mean the federal employee, her private employer, or its supervisors become state actors necessary for the employee to proceed on a civil rights claim. While the city is a state actor, the employee must plausibly plead the others became state actors. After parsing the variety of claims, the African American female employee plead the city is a joint employer for her discrimination claims but has not plead a civil rights claim against the city, her private employer and its supervisors or the federal employee who allegedly harassed her. She also may not seek a remedy under section 1981. We grant the city's, the private employer's, and the federal employee's motions to dismiss the civil rights claims with leave to amend if the employee can plead facts allowing her to proceed on a civil rights claim under section 1983.

I. Alleged facts

African American Latoya Rippy began working for Public Health Management Corporation in March 2013.1 The Corporation is "a non-profit health institute that builds healthier communities through partnerships with government, foundations, business and community-based organizations."2 Corporation employees Cherie Walker-Baban, Leslie Gaymon, and Kristine Arrieta supervised Ms. Rippy.3

Ms. Rippy worked for the Corporation with City of Philadelphia employees and supervisors, at a building owned, operated, and managed by the City, but Ms. Rippy does not plead the nature of the partnership or contractual relationship between the City and the Corporation.4 For unplead reasons, both federal employee Tony Gerard with the Center for Disease Control and her supervisors at the Corporation directly supervised Ms. Rippy's work, but the City employees "exerted significant control over [Corporation] employees by co-determining matters that govern essential terms and conditions of the employment of [Corporation] employees."5 City employees defined work rules and assignments for Corporation employees including when Corporation employees should report to City doctors and nurses.6 City and Corporation supervisors disciplined Corporation employees.7 Corporation employees reported issues with City employees to City and Corporation supervisors.8 City employees conducted sexual harassment trainings for Corporation employees, and the City's anti-harassment policies applied to Corporation employees.9

Federal employee Mr. Gerard's alleged conduct

Ms. Rippy also answered to Tony Gerard, an employee with the Center for Disease Control under the federal government. Mr. Gerard also supervised Ms. Rippy.10 From September 2017 through September 2018, Mr. Gerard subjected Ms. Rippy to "physical sexual harassment, verbal sexual harassment, and racial discrimination."11 Mr. Gerard began supervising Ms. Rippy inSeptember 2017.12 Mr. Gerard once asked Ms. Rippy why her boyfriend would lend her his car, implying African Americans "do not give anything away for free."13 Mr. Gerard also implied Ms. Rippy offered her boyfriend sexual favors in exchange for the car.14 Mr. Gerard asked if Ms. Rippy's son had an "African last name."15 When she responded his name is "Matunda," Mr. Gerard said "no wonder you have an African man—they like their women thick."16 Ms. Rippy told Mr. Gerard the next day his comments were inappropriate and he apologized and said it would not happen again.17 But in November 2017, during her annual evaluation, Mr. Gerard said, "You can dress like someone out of a magazine and still won't get a promotion."18 In January 2018, Mr. Gerard put his arms on Ms. Rippy's breast following a sexual harassment training Mr. Gerard did not attend.19 After placing his arms on her breast, Mr. Gerard claimed the "sexual harassment policy [did] not apply" to him because he did not take the sexual harassment training.20 In June 2018, Mr. Gerard told Ms. Rippy he could not describe where he thought the cream filling in moon pies came from because he did not "want to receive another text from [her]."21

In September 2018, Mr. Gerard implied Ms. Rippy, and African Americans in general, receive goods like her car in exchange for sexual favors.22 Ms. Rippy immediately reported Mr. Gerard's behavior to Supervisor Gaymon.23 Supervisor Gaymon told Ms. Rippy she would report Mr. Gerard's behavior to Supervisor Walker-Baban.24

Corporation's response to Ms. Rippy's concerns.

On September 17, 2018, Supervisor Gaymon, non-party Melinda Salmon (with an undefined role), and Ms. Rippy discussed Ms. Rippy's concerns about Mr. Gerard's behavior.25 The same day, Ms. Rippy's supervisors removed her from a special project and moved her reporting facility to accommodate her new placement.26 Supervisor Walker-Baban and Ms.Salmon told Ms. Rippy to send her allegations to them and leave the premises by noon so Supervisor Walker-Baban and Ms. Salmon could speak with Mr. Gerard.27

Following her conversation with Mr. Gerard later the same day, Supervisor Walker-Baban called Ms. Rippy telling her Mr. Gerard agreed to "keep his distance," and directing Ms. Rippy to "keep her distance."28 Supervisor Walker-Baban also told Ms. Rippy to report to her usual facility rather than the new one.29 Ms. Rippy said she would not return to a mutual place of work with Mr. Gerard as she "[felt] ashamed, targeted, humiliated and embarrassed."30 Supervisor Walker-Baban responded Ms. Rippy "ha[d] been in [Mr. Gerard's] presence for months and [] never had an issue before."31 Ms. Rippy maintained her concern about reporting back to the same facility but Supervisor Walker-Baban told Ms. Rippy she told Mr. Gerard of the issue and she expected Ms. Rippy to return to the mutual facility the following day.32

When Supervisor Walker-Baban asked Ms. Rippy about her plans for monthly meetings, Ms. Rippy responded she "would not be returning back to the same office as [Mr. Gerard] until this [situation] has been resolved."33 When asked to return her pouch to Health Center 1, Ms. Rippy told Supervisor Walker-Baban someone "would drop [Ms. Rippy's] work belongings off by the end of the day. However, it would not be her due to the fact that she [] was extremely uncomfortable going to [Mr. Gerard's] place of employment."34 Ms. Rippy then gave her belongings to Abby in Health Center 5, asking Abby to give them to her supervisor, Gilberto Lopez.35 Supervisor Gaymon advised Ms. Rippy to allow the necessary managers handle the situation.36

Ms. Rippy spoke to Human Resource representative Donna Hollins on September 18, 2018.37 HR Representative Hollins told Ms. Rippy "she received [Ms. Rippy's] statement from [Ms. Arrieta]," but Ms. Rippy did not write a statement nor speak with Supervisor Arrieta aboutMr. Gerard's harassment.38 Ms. Rippy asked HR Representative Hollins if she "could write a statement and submit it to [ HR Representative Hollins] for evidence." HR Representative Hollins agreed.39

HR Representative Hollins then told Ms. Rippy "under no circumstances was [Ms. Rippy] to return to Health Center 1," but she would "be reporting to Health Center 5 beginning on Wednesday September 19."40 Supervisor Arrieta confirmed this placement, emailing Ms. Rippy later the same day saying Ms. Rippy would no longer work on the special project and would be stationed at Health Center 5 permanently.41

On September 19, 2018, Ms. Rippy returned to work at Health Center 5.42 Non-party Nashira Alston called Ms. Rippy informing her of an encounter involving Supervisor Walker-Baban, Supervisor Arrieta, and an individual from Human Resources.43 Ms. Alston said while the Human Resources individual asked her questions about Ms. Rippy and Mr. Gerard's interactions and Ms. Alston's own interactions with Mr. Gerard, Supervisor Arrieta continually interrupted Ms. Alston, calling her a liar and stating, "[Mr. Gerard] never made you feel uncomfortable."44

On September 26, 2018, Supervisor Arrieta told Ms. Rippy to "submit all special projects to [Mr. Gerard] for final closure," and "all records are to be placed in [Mr. Gerard's] mailbox at Health Center 1."45 On October 4, 2018, Supervisor Arrieta again told Ms. Rippy to "keep [her] old work until it is ready for closure then submit it to [Mr. Gerard]."46

Alleged retaliation for Ms. Rippy's complaints.

Because Ms. Rippy reported Mr. Gerard's sexual harassment and racial discrimination, other Corporation employees continued to "discriminate, retaliate, and harass" her.47 Some examples of continued harassment include: being required to report to Mr. Gerard's place of work even though Ms. Rippy reported feeling unsafe around him, being "singled out for selectiveenforcement and discipline," having her work abilities questioned for the first time, and being scheduled for trainings she used to be exempt from.48 Around October 9, 2018, Supervisor Arrieta began reviewing Ms. Rippy's cases despite never doing so for other employees previously and scheduled Ms. Rippy to cover a mandatory phlebotomy even though Supervisor Arrieta would usually just ask whether Ms. Rippy felt she needed to be retrained without questioning her answer.49 Supervisor Arrieta also began reviewing Ms. Rippy's "mileage per client visit" without doing so for other "similarly situated employee[s]," as Supervisor Arrieta previously only reviewed mileage when it "exceeded the expected by ten (10) or...

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