John Doe v. New Castle County

• Court: Court of Appeals for the Third Circuit
• Decided: November 8, 2024
• Docket: 23-3190
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 23-3190 ____________

JOHN DOE, Appellant

v.

NEW CASTLE COUNTY; HERBERT F. COATES, in his individual capacity; GARRETT C. KRATZER, in his individual capacity ____________

On Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 1-21-cv-01450) District Judge: Honorable Richard G. Andrews ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 2, 2024

Before: SHWARTZ, MATEY and FISHER, Circuit Judges.

(Filed: November 8, 2024) ____________

OPINION * ____________

FISHER, Circuit Judge.

Plaintiff John Doe briefly worked for New Castle County in the Department of

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Public Works alongside co-workers Herbert Coates and Garrett Kratzer. Doe sued,

alleging Title VII hostile work environment, retaliation, and constructive discharge

claims against the County, and constitutional substantive due process and equal

protection claims against Coates and Kratzer. The District Court granted the defendants’

motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss Doe’s hostile work

environment, retaliation, and constitutional claims. 1 Later, it granted the defendants’ Rule

12(c) motion for judgment on the pleadings and dismissed the remaining constructive

discharge claim. 2 Doe appeals these orders. We will affirm. 3

Doe argues the District Court erred by applying the summary judgment standard

on the Rule 12(b)(6) motion. This higher standard requires the non-movant to establish

that there is a genuine issue of material fact warranting a trial. 4 Doe claims “[t]his error

1 To survive a motion to dismiss, a complaint need only “nudge[]” the claims “across the line from conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Allegations are sufficient if they “‘raise a reasonable expectation that discovery will reveal evidence of’ each necessary element of the claims alleged in the complaint.” Fenico v. City of Phila., 70 F.4th 151, 161 (3d Cir. 2023) (quoting Twombly, 550 U.S. at 556). 2 A Rule 12(c) motion for judgment on the pleadings is reviewed under the same plausibility standard as a Rule 12(b)(6) motion. Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010). 3 The District Court had jurisdiction under 28 U.S.C. § 1331 (federal questions) and 42 U.S.C. § 1343(a)(3) (§ 1983 suits) and (4) (statutes protecting civil rights). We have jurisdiction under 28 U.S.C. § 1291 (final decisions of district courts). We review the District Court’s dismissals under Rule 12(b)(6) and 12(c) de novo. Mid-Am. Salt, LLC v. Morris Cnty. Coop. Pricing Council, 964 F.3d 218, 226 (3d Cir. 2020). 4 Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1362–63 (3d Cir. 1992).

2 runs through the . . . entire [Rule] 12(b)(6) [d]ecision . . . .” 5 We need not address this

assertion because, even if Doe is correct, we are conducting de novo review.

Doe’s hostile work environment claims are based upon Kratzer’s harassment of

Doe because of Doe’s wife’s Filipina background and Doe’s perceived homosexuality.

To state a claim for a hostile work environment under Title VII, a plaintiff must allege

(1) he or she “suffered intentional discrimination” because of his or her protected

characteristic, (2) “the discrimination was severe or pervasive,” (3) “the discrimination

detrimentally affected the plaintiff,” (4) “the discrimination would detrimentally affect a

reasonable person in like circumstances,” and (5) “respondeat superior liability.” 6

Only the last element is at issue on appeal. Respondeat superior liability for

harassment by non-supervisory co-workers “exists only if the employer failed to provide

a reasonable avenue for complaint or, alternatively, if the employer knew or should have

known of the harassment and failed to take prompt and appropriate remedial action.” 7 In

general, an employer should have known of the harassment if “[it] is so pervasive and

open that a reasonable employer would have had to be aware of it,” or “an employee

provides management level personnel with enough information to raise a probability of

. . . harassment in the mind of a reasonable employer . . . .” 8

5 Appellant’s Br. 13. 6 Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). 7 Huston v. Procter &Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009). 8 Kunin v. Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. 1999).

3 Doe argues he plausibly alleged respondeat superior liability because he alleged

Kratzer previously had openly directed sexually and racially offensive comments at

women and Black people. He argues the County therefore knew or should have known

about Kratzer’s sexual and racial harassment directed at him. But a work environment is

hostile if the discriminatory conduct “alter[s] the ‘conditions’ of the victim’s

employment,” 9 so the inquiry is whether the County allegedly knew or should have

known that the conditions of Doe’s employment had been altered. Doe claims his

conditions of employment were altered by Kratzer’s comments directed towards him, not

others. To be sure, prior harassment of others is relevant to determine if the County had

“enough information to raise the probability of . . . harassment.” 10 But even assuming

management level personnel knew about Kratzer’s previous comments, the type and

seriousness of those comments is too distinct from the harassment that Doe suffered.

Doe also alleges the County should have known about Kratzer’s harassment of

Doe because of Kratzer’s troubled work history. Kratzer told Doe that one of his

previously assigned helpers killed himself and another sought a transfer. He also told Doe

he was fired from a previous job due to his personality disorder. It is plausible that the

County knew or should have known Doe was having a difficult time working with

Kratzer. Indeed, Doe alleges someone from the County approached him after the transfer

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (quoting Oncale v. 9

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)) (emphasis added). 10 Kunin, 175 F.3d at 294.

4 to ask if he was having any problems. However, none of these allegations give rise to a

plausible inference that the County knew or should have known about Kratzer’s sexual

and racial harassment of Doe.

Doe also argues that the County failed to provide a reasonable avenue for

complaint. Doe concedes that he never attempted to report Kratzer. He believed

complaining would have been futile because his prior complaints to supervisors about

Coates’s homophobic slurs resulted only in Doe’s transfer to work with Kratzer. But our

review of whether Doe lacked a reasonable avenue of complaint is objective. Doe does

not allege that the County lacked a reasonable avenue to complain about something as

severe as Kratzer’s harassment. Indeed, when the County learned of the harassment

through the police, it immediately placed Kratzer on administrative leave and

investigated the incident. 11 For these reasons, Doe’s hostile work environment claims

were correctly dismissed.

For the retaliation claim relating to Doe’s work with Coates, Doe must plead

“sufficient factual allegations to raise a reasonable expectation that discovery will reveal

evidence” that “(1) [he] engaged in conduct protected by Title VII; (2) the [County] took

adverse action against [him]; and (3) a causal link exists between [his] protected conduct

11 Doe cites Graudins v. Retro Fitness, LLC for the “broader proposition” that if an employee did not feel safe reporting misconduct, there was no reasonable avenue for complaint. 921 F. Supp. 2d 456, 467 (E.D. Pa. 2013). In Graudins, however, the employee’s supervisor was the harasser’s brother. Id. Here, there was no comparable conflict of interest.

5 and the [County’s] adverse action.” 12 Doe argues only that, on its own, the temporal

relationship between Doe’s reporting of Coates’s offensive language and his transfer to

work with Kratzer was sufficient to plead causation.

“In certain narrow circumstances, an unusually suggestive proximity in time

between the protected activity and the adverse action may be sufficient” to raise a causal

inference. 13 But there is no rigid time frame as to what qualifies as unusually suggestive

because it is a context-specific inquiry. 14 Doe does not identify when exactly he reported

his concerns, but it was within the fifty-nine-day period that Doe worked alongside

Coates. There is nothing unusually suggestive about this temporal gap, especially

considering the alleged retaliatory transfer was set in motion by an investigation of an

unrelated, contentious argument between Doe and Coates a week before. Doe therefore

has not pled a retaliation claim related to his work with Coates.

Doe argues he sufficiently alleged retaliation relating to his work with Kratzer

because the County took an adverse employment action by failing to offer him an

unsolicited transfer. Adverse employment actions are those material enough to

“dissuade[] a reasonable worker from making or supporting a charge of

discrimination.” 15 Doe never requested a transfer. He went on unpaid medical leave and

12 Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). 13 Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (internal quotation marks and citations omitted). 14 Qin v. Vertex, Inc., 100 F.4th 458, 477 (3d Cir. 2024). 15 Burlington N. & S.F. Ry. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v.

6 then resigned. Absent other circumstances, a failure to offer an unsolicited transfer to an

employee on indefinite leave is not an adverse employment action. So the District Court

did not err in dismissing Doe’s retaliation claim related to Kratzer.

To plead constitutional claims against Coates and Kratzer, Doe must allege that

they acted under color of state law when harassing him. Under 42 U.S.C. § 1983, a

defendant acts under color of state law when “exercis[ing] power” possessed by virtue of

authority granted under state law. 16 Generally, in order to act under color of state law, the

defendant state employee must have supervised the plaintiff. 17 The substance of the

individual defendant’s job functions, rather than the form, determines whether he or she

was in the position of supervising the plaintiff employee. 18 We have previously examined

two factors to determine if there was supervisory control: (1) whether the defendant could

alter the plaintiff’s workload or “wield[ed] considerable control” over the plaintiff and (2)

whether the plaintiff would face charges of insubordination for failure to obey the

defendant’s order. 19

Doe asks us to infer supervisory control from his title as “Trades Helper” and his

conclusory allegations that he “assist[ed]” Coates and “work[ed] under” Kratzer. 20

Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). 16 West v. Atkins, 487 U.S. 42, 49 (1988). 17 Bonenberger v. Plymouth Twp., 132 F.3d 20, 23–25 (3d Cir. 1997). 18 Id. at 23. 19 Id. at 23–24. 20 JA33–34.

7 However, Doe does not allege that either could have altered his workload or wielded

considerable control over him. And regarding the risk of insubordination charges, Doe

allegedly was disciplined for threatening Coates, not for failing to obey his orders.

Similarly, Doe feared discipline for reporting Kratzer’s behavior, not for failure to obey

orders. Since these allegations do not establish that Coates and Kratzer acted with

supervisory control over Doe, we affirm the dismissal of the constitutional claims.

Lastly, Doe argues the dismissal of his hostile work environment claims does not

implicate the viability of his constructive discharge claim because the two are distinct.

However, “[c]reation of a hostile work environment is a necessary predicate to a hostile-

environment constructive discharge case.” 21 Doe points to the Supreme Court’s holding

that “constructive discharge is a claim distinct from the underlying discriminatory act.” 22

But that later opinion reiterates the rule that “a hostile-work-environment claim is a

‘lesser included component’ of the ‘graver claim of hostile-environment constructive

discharge.’” 23 Because Doe’s hostile work environment claim fails, we affirm the

dismissal of the constructive discharge claim.

For the foregoing reasons, we will affirm the order of the District Court.

21 Pa. State Police v. Suders, 542 U.S. 129, 149 (2004). 22 Green v. Brennan, 578 U.S. 547, 559 (2016). 23 Id. (quoting Suders, 542 U.S. at 149).