United States District Court, D. Delaware.

Marigrace L. Kemske, Plaintiff,

v.

Johnson Controls, Inc., Defendant.

 

Civ. No. 12–1258–LPS

Signed July 2, 2014

 

Marigrace L. Kemske, Pro Se, Smyrna, Delaware, Plaintiff.

 

R. Stokes Nolte and Carmen N. Couden, Esquires, Reilly Janiczek & McDevitt PC, Wilmington, Delaware, Attorneys for Defendant.

 

MEMORANDUM OPINION

STARK, U.S. District Judge:

I. INTRODUCTION

*1 Plaintiff Marigrace L. Kemske (“Plaintiff” or “Kemske”) filed this action against Defendant Johnson Controls, Inc. (“Defendant” or “JCI”) alleging employment discrimination by reason of sex pursuant to Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e, et seq. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Presently before the Court is Defendant’s motion for summary judgment (D.I.17), opposed by Plaintiff.FN1 For the reasons that follow, the Court will grant Defendant’s motion.

 

FN1. Kemske filed a response to the motion for summary judgment that consisted mainly of exhibits with little to no argument, making it difficult to determine her positions on the issues raised by JCI. When JCI pointed out the deficient response, Kemske filed a sur-reply in derogation of the Local Rules of this Court. See D. Del. LR 7.1.2. However, given Kemske’s status as apro se litigant, the Court will consider the sur-reply found at D.I. 26.

 

II. PROCEDURAL BACKGROUND

Kemske’s employment with JCI was terminated on September 7, 2010. (D.I. 20 at App. 137) On June 20, 2011, Kemske filed a charge of discrimination against JCI with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination by reason of sex in connection with her discharge. (Id.) Therein, Kemske states that JCI’s reasons for her discharge were that she had harassed another employee on more than one occasion. (Id.) In addition, the charge of discrimination states that JCI took into consideration that Kemske had been absent from work. (Id.) The charge of discrimination further states that male employees were given preferential treatment and, particularly, that Kemske was treated differently than male employees who engaged in the same conduct as her, but were not terminated. (Id.) Following its investigation, the EEOC was unable to conclude that the information obtained established violations of the statute and closed the file. ( Id. at App. 139) The EEOC’s right to sue letter is dated July 2, 2012. (Id.) Kemske filed the instant lawsuit on October 3, 2012, alleging discriminatory acts occurred when she was wrongfully terminated and that JCI created and perpetuated a hostile work environment. (D.I.1) JCI moves for summary judgment, which Plaintiff opposes. (D.I.17, 24, 26)

 

III. FACTUAL BACKGROUND

Kemske was hired by JCI in July 1996 as an assembler and was later promoted to truck loader. (D.I. 20 at App. 84, 137) JCI manufactures automotive and marine batteries at a facility located in Middletown, Delaware. (Id. at App. 2, 13) The facility employs approximately 145 employees, many of whom are represented by the International Union United Automobile, Aerospace and Agricultural Implement Workers of America (the “Union”). (Id. at App. 2, 13, 49–50) Some of the terms and conditions of employment for represented employees are governed by a collective bargaining agreement (“CBA”) between JCI and the Union. (Id. at App. 2,13,19–31,50,86)

 

*2 JCI publishes Equal Employment Opportunity (“EEO”) and No Harassment policies prohibiting discrimination or harassment in any form or degree in the workplace; maintains a workplace violence policy, which prohibits, among other things, threats of harm, intimidation, and coercion; and has an ethics policy, which states that neither physical nor mental abuse or harassment will be tolerated. (Id. at 3, 14, 51, 56–58, 60–61) In addition to these policies, JCI has established plant rules that govern employee conduct in the workplace. (Id. at App. 2, 13, 35–38, 50) Kemske was provided a copy of JCI’s plant rules, as well as copies of the EEO and No Harassment policies, during her new hire orientation. (Id. at App. 90, 94, 98–100)

 

Because some infractions are considered more serious than others, JCI divides plant rule violations into three categories, according to severity: A-rule, B-rule, and C-rule violations. (Id. at App. 2, 13, 35–38, 50–51) The least serious offenses are A-rule violations such as idleness, negligence on the job, and frequent tardiness or absences. (Id. at App. 2, 13–14, 35–38, 50, 93) A-rule violations normally result in a four-step progressive disciplinary process, with termination as the fourth and final step. (Id.) Next, in the level of serousness are the B-rule violations, such as hindering or limiting production or horseplay, and they typically result in a two-step progressive disciplinary procedure involving a final warning for the first violation and discharge for the second. (Id. at App. 3, 14, 35–38, 50) The most serious offenses are C-rule violations such as disobedience, insubordination, threatening or intimidating behavior, or the use of foul or abusive language directed toward fellow workers, visitors, members of management, supervisors, or customers. (Id. at App. 3, 14, 35–38, 51, 92–93) Employees who commit C-rule violations are subject to immediate discharge. (Id.) An employee who has a dispute with JCI, including one relating to discharge from employment, may file a written grievance, which will be handled in accordance with the CBA’s grievance and arbitration procedures. (Id. at App. 2, 13, 25–28, 50, 82)

 

In December 2009, Kemske’s supervisor, Heath Yarnall (“Yarnall”) made Sharon Adams (“Adams”), the JCI Health and Safety Supervisor at the Middletown plant, aware of an incident in which Kemske had walked up to co-worker Rick Larimore (“Larimore”) (an individual with whom Kemske had had a brief consensual relationship), called him names, and yelled at him. (Id. at App. 4–5) A Ruan Transport FN2 contractor witnessed the incident. (Id. at App. 4)

 

FN2. Ruan Transport is the trucking company for JCI, and it maintains an office at the Middletown facility. (D.I. 20 at App. 101)

 

Yarnall told Adams that Kemske claimed Larimore was harassing her and that he got away with it more than other employees did. (Id.) Adams investigated the incident and Kemske’s allegations of favoritism. (Id. App. 4–6) Adams found no evidence of harassment by Larimore or favoritism shown to him by JCI and, further, that Kemske herself had engaged in inappropriate behavior, including directing false allegations and abusive language at Larimore. (Id. at App. 6) Adams concluded that Kemske had repeatedly directed unwelcome remarks and inappropriate comments to Larimore over several months, in violation of JCI’s No Harassment policy and in violation of plant rule C–19.FN3 (D.I. 19 at App. 156; D.I. 20 at App. 6)

 

FN3. According to Adams, this was not the first time that Kemske had engaged in inappropriate behavior in violation of rule C–19. (D.I. 19 at App. 152–154; D.I. 20 at App. 5)

 

The applicable portion of the C–19 rule describes the violation as “threatening, intimidating, or the use of foul or abusive language directed towards fellow workers, visitors, members of management, supervisors, or customers, or that would hinder the welfare of the company.” (D.I. 20 at App. 36–37) The penalty for C-rule violations is immediate discharge, and Kemske’s employment could have been terminated by JCI at that time. (D.I. 20 at App. 6) However, in recognition of Kemske’s long service with JCI, a “last chance agreement” was entered into on December 31, 2009 among JCI, Kemske, and the Union to continue Kemske’s employment on a last chance basis. (Id.)

 

*3 Under the terms of the agreement, Kemske agreed: (1) to stop all unprofessional conversations and inappropriate conduct toward Larimore and any other co-worker or member of management; (2) to enroll in JCI’s Employee Assistance Program (“EAP”) and complete the program outlined upon her enrollment; and (3) that if she again violated JCI’s No Harassment policy or if she failed to complete the EAP program, she would be automatically and immediately discharged. (D.I. 19 at App. 158–160; D.I. 20 at App. 6–7) In addition, the Union agreed that if Kemske did not comply with the terms of the agreement, Kemske’s discharge would be treated as a termination for just cause, and it would not be grieved or arbitrated. (D.I. 19 at App. 158–159; D.I. 20 at App. 7)

 

On September 2, 2010, Adams was made aware of a complaint by Larimore about the behavior of Kemske the prior evening when Kemske saw him talking to Janice Pierce (“Pierce”) (a Ruan contractor who was then Larimore’s girlfriend). (D.I. 20 at App. 7) Kemske started clapping out loud, shaking her butt, and yelling “encore, encore.” (Id.) Larimore complained that Kemske told other employees that he was “demonic” and she made inappropriate remarks about Larimore’s dating relationship with Pierce. (Id.) Kemske was immediately suspended and Adams investigated the allegations. (D.I. 19 at App. 165, 167–169; D.I. 20 at App. 7, 107–109; D.I. 25 at 396–98) Kemske admitted to Adams that she yelled “encore, encore” but denied it was directed at Larimore, while other witnesses indicated that Kemske was clapping and yelling “encore” while looking and yelling in the direction of Larimore and Pierce. (D.I. 19 at App. 165, 167–169; D.I. 20 at App. 7–8, 100) Witnesses also indicated that Larimore kept quiet during the incident, and it was Kemske who made the “baiting comments.” (Id.) In addition, Larimore provided a copy of a note that Kemske had left for him at work several months earlier. (D.I. 20 at App. 8, 114–115)

 

Upon completion of the investigation, JCI concluded that Kemske had violated its policies and plant rules. (D.I. 20 at App. 8) On September 7, 2010, Kemske’s employment was terminated, purportedly based upon her harassing behavior toward Larimore and in violation of the December 31, 2009 last chance agreement, plant rule C–19, and JCI’s No Harassment policy. (Id. at App. 8, 16) According to Adams, although Kemske’s September 6, 2010 notice of disciplinary action form listed some prior discipline for attendance-related violations, Kemske was not terminated for violating JCI’s attendance policy. (Id. at App. 8–9, 16, 106–107) The JCI notices of disciplinary action forms Kemske received for attendance violations indicate that she never received more than a “written discussion” or “warning” from JCI in connection with the attendance violations. (D.I. 19 at App. 185–190)

 

Exhibits submitted by the parties indicate that both men and women: (1) were disciplined or terminated for harassment (D.I. 24 at 584, 586, 784–872); (2) received last chance agreements (id. at 391, 791, 892); and (3) received write-ups and were disciplined for absences (D.I. 19 at App. 184–244; D.I. 24 at 721, 780, 807).

 

IV. SUMMARY JUDGMENT

 

A. Legal Standards

 

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An assertion that a fact cannot be—or, alternatively, is—genuinely disputed must be supported either by citing to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the nonmovant must then “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (internal quotation marks omitted). The Court will “draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). With respect to summary judgment in a discrimination case, the Court’s role is “to determine whether, upon reviewing all the facts and inferences to be drawn therefrom in the light most favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of material fact as to whether the employer intentionally discriminated against the plaintiff.” Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir.1987).

 

*4 To defeat a motion for summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; see also Podobnik v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir.2005) (stating party opposing summary judgment “must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue”) (internal quotation marks omitted). However, the “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;” and a factual dispute is genuine only where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249–50, 106 S.Ct. 2505 (internal citations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating entry of summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). Thus, the “mere existence of a scintilla of evidence” in support of the non-moving party’s position is insufficient to defeat a motion for summary judgment; there must be “evidence on which the jury could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

 

B. Discussion

JCI moves for summary judgment on the grounds that: (1) Kemske failed to exhaust her administrative remedies for the hostile work environment claim; (2) some or all of her claims are barred by the applicable statute of limitations; (3) Kemske cannot establish a prima facie case of sex discrimination or show that JCI’s legitimate, non-discriminatory reason for her termination was pretextual; and (4) the sex harassment claim must be dismissed because the claim is untimely, Kemske was not subject to a hostile work environment, and there is no basis on which to hold JCI liable for sexual harassment.

 

1. Exhaustion of Administrative Remedies

JCI moves for summary judgment on the issue of a hostile work environment on the grounds that Kemske failed to exhaust her administrative remedies. Kemske responds that she never claimed sexual harassment; she claims sex discrimination. (D.I. 24 Exs. P6, P8a and b)

 

The filing of a charge with the EEOC and receipt of a notice to sue letter are prerequisites to a civil action under Title VII. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The parameters of the federal court action are “defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Hicks v. ABT Associates, Inc., 572 F.2d 960, 966 (3d Cir.1978) (internal quotation marks omitted); see also Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir.1984) (“[A] district court may assume jurisdiction over additional charges if they are reasonably within the scope of the complainant’s original charges.”). When a claim has not specifically been presented in an administrative charge, the test for whether that claim may be presented to the District Court is “whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.” Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.1996) (internal quotation marks omitted).

 

After a plaintiff files a charge of discrimination against an employer and subsequently receives a right-to-sue letter, a plaintiff’s “ensuing suit [in district court] is limited to claims that are within the scope of the initial administrative charge.” Barzanty v. Verizon Pa., Inc., 361 Fed.Appx. 411, 414 (3d Cir.2010) (citing Antol, 82 F.3d at 1296). Accordingly, a plaintiff cannot “greatly expand an investigation simply by alleging new and different facts when” later bringing claims in the District Court. Hicks, 572 F.2d at 967.

 

In her charge of discrimination, Kemske alleged: (1) that she was hired as an assembler and later promoted to truck loader, she is female, and was terminated; (2) the reason given for her termination was that she harassed another employee on December 22, 2009, and on September 1, 2010, in violation of a last chance agreement, and that JCI took into consideration two prior absences; (3) males are given preferential treatment, and she disputes that she harassed another employee because foul language is commonly used throughout the company by both males and females, but when she used it she was accused of harassment; (4) she believes that she was discriminated against because of her gender in that JCI accorded her different treatment when it terminated her employment for harassment and use of foul language but allowed others to use foul language; and (5) males are not terminated when they fail to call in for work and are no-shows or take long breaks. (D.I. 20 at App.137) Kemske first raised the issue of a hostile work environment in her complaint filed in this Court on October 3, 2012, wherein she alleges other acts of discrimination occurred in “creating and perpetuating a hostile work environment.” (D.I. 1 at ¶ 10)

 

*5 The Court must decide whether a hostile work environment claim is within the fair scope of Kemske’s original EEOC filing. To succeed in a sexual harassment claim based upon a hostile work environment, Kemske must show that: (1) she suffered intentional discrimination because of her sex; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affect a reasonable person of the same sex in that position, and (5) the existence of respondent superior liability. See Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.2006) (overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)); see also Miller v. Thomas Jefferson Univ. Hosp., ––– Fed.Appx. ––––, ––––, 2014 WL 1690447, at *4 n. 6 (3d Cir. Apr. 30, 2014).

 

Even liberally interpreting Kemske’s charge of discrimination, a hostile work environment claim is not within the scope of the charge. The Third Circuit held in Anjelino v. New York Times Co., 200 F.3d 73, 94–95 (3d Cir.1999), that a hostile work environment claim was within the scope of an initial EEOC charge because the charge alleged that the plaintiff was subjected to an “abusive atmosphere,” a phrase which may be interchangeable with “hostile work environment.” Here, there is no language in Kemske’ charge or discrimination that gives rise to a hostile work environment claim. The charge of discrimination identifies only allegations of gender discrimination relating to Kemske’s employment at JCI in general and, specifically, her September 2010 termination. Kemske provided no facts that suggest a hostile work environment, nor did not check the box indicating her charge was a “continuing action.” See e.g., Barzanty, 361 Fed.Appx. at 414–15 (discharged employee failed to exhaust her administrative remedies with respect to her Title VII hostile work environment claim, where employee’s charge of discrimination identified only an allegation of gender discrimination relating to her discharge, and it did not set forth any facts suggesting an abusive workplace or hostile work environment).

 

Accordingly, the Court will grant JCI’s motion summary judgment on the issue of failure to exhaust administrative remedies with respect to the hostile work environment claim.FN4

 

FN4. Even had Kemske exhausted her administrative remedies, no reasonable jury could find for her on the issue of a hostile work environment. During her deposition, Kemske testified that a hostile work environment existed because: (1) Larimore was allowed to take extended work breaks and given time off in excess of his accrued vacation days; (2) Larimore and Ruan workers began locking the door to the Ruan office; (3) Larimore was “being nasty” and refused to help her or get her water when she requested it; (4) Larimore kissed his new girlfriend at work; (5) Larimore was in the Ruan office after his work hours; (6) Kemske’s supervisor told her to mind her own business when she inquired about Larimore’s absences; (7) the Ruan yardman was “obstinate” with her; and (8) some people were allowed to go off and not do their assigned work while others were forced to stay and work. (D.I. 20 at 77, 81–83, 101–02, 104, 120–21) JCI presented evidence that many of Larimore’s absences were due to intermittent FMLA leave. (Id. at App. 16) In addition, Larimore received disciplinary actions related to his attendance. (D.I. 19 at App. 192–98; D.I. 20 at App. 16) Finally, the record reflects that JCI investigated the claims of harassment, concluded that it was Kemske, not Larimore, who had engaged in harassing behavior but, nonetheless, advised Larimore to behave professionally at work. (D.I. 19 at App. 156; see also Cerros v. Steel Techs., Inc., 398 F.3d 944, 954 (7th Cir.2005) (prompt investigation is “a hallmark of reasonable corrective action”)) More generally, none of what Kemske alleges—individually, or collectively—appears to amount to severe or pervasive harassment. See generally Jensen, 435 F.3d at 449 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)) (stating Title VII does not represent ‘ “a general civility code for the American workplace’ ”).

 

2. Statute of Limitations

*6 JCI moves for summary judgment on all claims, except the wrongful discharge claim, on the grounds that they are barred by the applicable statute of limitations. Plaintiff’s opposition is confusing at best, but it does not appear that she opposes summary judgment on this issue.

 

A Title VII plaintiff in a “deferral state” such as Delaware must file a charge of discrimination with the EEOC within 300 days of the alleged unlawful employment practice. See Lacy v. National R.R. Passenger Corp., 254 Fed.Appx. 934, 936 (3d Cir.2007). JCI argues that, because Kemske filed her EEOC charge of discrimination on June 20, 2011, only acts occurring within the previous 300 days—that is, on or after August 24, 2010—may be considered by the Court because the EEOC charge does not claim there was a continuing violation.

 

Under the continuing violation theory, ‘ “when a defendant’s conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the Court will grant relief for the earlier related acts that would otherwise be time barred.’ ” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.2001) (quoting Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991)). A “continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.” Cowell, 263 F.3d at 293 (internal quotation marks omitted). The continuing violation doctrine has no applicability to “[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire” because “[e]ach incident of discrimination and each retaliatory adverse employment action constitutes a separate actionable ‘unlawful employment practice.’ ” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Zankel v. Temple Univ., 245 Fed.Appx. 196, 199 (3d Cir.2007). In the context of employment discrimination, “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in a timely filed charge.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir.2013).

 

Kemske’s Title VII action stems from JCI’s determination that she violated the last chance agreement as well as the termination of her employment on September 7, 2010. The last chance agreement was the result of the December 2009 incident after it was determined that Kemske, and not Larimore, was the harasser in violation of JCI’s work rules and regulations. Because the September 2010 termination is a separate employment practice, the continuing violation theory is inapplicable to other prior acts mentioned in the EEOC charge that fall outside the 300 day time-frame.

 

Kemske’s EEOC charge of discrimination was filed on June 20, 2011. Therefore, any claims that accrued prior to August 24, 2010 are time-barred. Based upon the foregoing, the Court will grant JCI’s motion for summary judgment that seeks dismissal of all claims that accrued prior to August 24, 2010 as time-barred.

 

3. Sex Discrimination

JCI seeks summary judgment on the grounds that Kemske has failed to establish a prima facie case of sex discrimination and, further, has failed to show that Defendant’s proffered explanation for the actions it took is pretextual. In opposing the motion, Kemske responds that: (1) she has submitted evidence that men are treated more favorably than women; (2) she has no inefficiency on the job, while certain male employees do; (3) she performed her job as well as other truck loaders; (4) the affidavits submitted by JCI are either false or embellished; and (5) she disagrees with the findings of the December 2009 and September 2010 investigations by JCI. (See D.I. 24; D.I. 24 Exs. P7, 15; D.I. 26; D.I. 26 at 7)

 

*7 Kemske has provided no direct evidence of discrimination. Thus, the Court turns to the McDonnell Douglas burden-shifting framework. Under this framework, Kemske must first establish a prima facie case of discrimination by coming forward with evidence from which a reasonable factfinder could find that: (1) she is a member of a protected class; (2) she was qualified for the position she sought to attain or retain; (3) she suffered an adverse employment action; and (4) the action occurred under circumstances that could give rise to an inference of intentional discrimination. See Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.2008). If a plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant employer to proffer a “legitimate non-discriminatory” reason for its actions. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 n. 2 (3d Cir.1997). If the defendant does so, then the burden shifts again to the plaintiff to demonstrate, by a preponderance of the evidence, that the employer’s rationale is pretexrual. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817.

 

It is undisputed that Kemske is a female and a member of a protected class and that she suffered an adverse employment action when her employment was terminated; hence, the first and third prongs are satisfied. With regard to the second prong, JCI argues that Kemske did not meet the legitimate expectations of JCI, given that she violated company and plant rules as well as the last chance agreement. Kemske counters that she held the position of truck loader and had no inefficiency on the job. JCI does not contend that Kemske lacked the requisite qualifications, education, experience, or skills for the position from which he was terminated. In addition, JCI did not submit evidence that Kemske’s violation of work rules and policies automatically rendered her unfit or unqualified for her position. Moreover, despite her previous violation of work rules, Kemske was not terminated, but instead had her employment continued on a last chance basis. (See D.I. 20 at App. 6) All of this reflects evidence that could reasonably support a finding that Kemske was qualified for the position she sought to retain. See e.g., Blackwell–Murray v. PNC Bank, 963 F.Supp.2d 448, 463 (E.D.Pa.2013) (when considering Title VII claim, Court must evaluate Plaintiff’s qualifications by an objective standard).

 

To satisfy the fourth prong of the prima facie case, Kemske must establish “that similarly situated individuals outside the plaintiff’s class were treated more favorably.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 273–74 (3d Cir.2010). In the alternative, Plaintiff must prove that she was “terminated under circumstances that give rise to an inference of unlawful discrimination such as might occur when the position is filled by a person not of the protected class.” Jones v. School Dist. of Phila., 198 F.3d 403, 410–11 (3d Cir.1999) (internal quotation marks omitted).

 

Kemske argues that similarly situated male employees were treated more favorably by JCI. The evidence of record, however, does not provide a reasonable factfinder a basis to agree with her. Instead, the record reflects that: (1) a male was immediately terminated for using foul or abusive language in violation of rule C–19; (2) a male was terminated for engaging in disobedience or threatening, intimidating behavior in violation of Rule C–19; (3) a male was terminated for violating plant rule C–19 and his last chance agreement; (4) a male was terminated for using inappropriate language in the presence of another employee; (5) women and men were disciplined or terminated for harassment; (6) women and men received last chance agreements; and (7) women and men received write-ups and were disciplined for absences. (See D.I. 19 at App. 184–248, 250, 252, 254; D.I. 24 at 391, 584, 586, 721, 780, 784–872, 892) Kemske has failed to satisfy the fourth element of her prima case.

 

*8 In the alternative, even had Kemske made a prima facie case of sex discrimination, she has not produced evidence from which a reasonable factfinder could find that JCI’s reason for its employment decision was a pretext for discrimination. Kemske must “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). “[T]o avoid summary judgment, the plaintiff’s evidence rebutting the employer’s proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer’s proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).” Harding v. Careerbuilder, LLC, 168 Fed.Appx. 535, 537 (3d Cir.2006) (internal citations and quotation marks omitted).

 

JCI met its burden by articulating a legitimate, nondiscriminatory reason for terminating Kemske’s employment. The record would support a finding that Kemske was terminated based upon her violations of JCI’s No Harassment policy and Kemske’s December 31, 2009 last chance agreement. Nothing before the Court contradicts JCI’s proffered reason for terminating Kemske’s employment. Nor is JCI’s proffered reason for its action weak, incoherent, implausible, or so inconsistent that a reasonable factfinder could rationally find it unworthy of credence. See Sarullo v. United States Postal Serv., 352 F.3d 789, 800 (3d Cir.2003). Even construing the evidence in the light most favorable to Kemske, she has provided no evidence from which a fact-finder could either disbelieve JCI’s articulated reason, or believe that a discriminatory reason was more likely than not the cause of the employment action. As there is no genuine dispute on the dispositive issue of whether JCI had a discriminatory motive, the Court will grant JCI’s motion for summary judgment.

 

V. CONCLUSION

For the above reasons, the Court will grant Defendant’s Motion for Summary Judgment (D.I.17) An appropriate Order follows.

 

ORDER

At Wilmington this 2nd day of July 2014, consistent with the Memorandum Opinion issued this date, IT IS HEREBY ORDERED that:

 

1. Defendant’s Motion for Summary Judgment (D.I.17) is GRANTED.

 

2. The Clerk of Court is directed to enter judgment in favor of the Defendant and against Plaintiff and to CLOSE the case.

United States District Court, N.D. Illinois, Eastern Division.

Mohamed Alassaf, Plaintiff,

v.

Travelers Casualty Insurance Company of America, Defendant.

 

No. 14 C 214

1:14–cv–00214Signed July 2, 2014

 

Haytham Faraj, The Law Office of Haytham Faraj, Chicago, IL, for Plaintiff.

 

Thomas Berthold Orlando, Matthew Peter Fortin, Foran Glennon Palandech Ponzi & Rudloff, PC, Chicago, IL, for Defendant.

 

MEMORANDUM OPINION

John F. Grady, United States District Judge

*1 Before the court is defendant’s motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), which is granted for the reasons explained below.

 

BACKGROUND

Plaintiff, Mohamed Alassaf, brings this action against defendant, Travelers Casualty Insurance Company of America (“Travelers”), for breach of contract and bad-faith failure to pay a claim in violation of the Illinois Insurance Code. Alassaf operated a business called ABC Carwash, which was located in Alsip, Illinois. In January 2010, Alassaf took out a Travelers “Garage Pac” custom insurance policy, designed for automobile-detailing shops, for ABC Carwash. The policy provided commercial general liability coverage, including property damage, and the policy period ran from March 9, 2010 to March 9, 2011.

 

On February 1, 2011, while the policy was in effect, ABC Carwash suffered substantial damage from a fire. Plaintiff alleges that the fire was accidental and caused damages in the amount of $93,841.03.

 

It is alleged that plaintiff notified Travelers of the loss in a timely manner and submitted a claim to initiate the repair and replacement process. Travelers “ultimately refused to repair” the facility and denied the claim on the ground that the fire was intentionally set. (Compl.¶ 12.) Plaintiff alleges that his entitlement under the policy to insurance payments for the fire damage is “clear and unambiguous,” that he performed his obligations under the policy, and that defendant’s refusal to pay the claim has caused plaintiff a “substantial loss of income,” forcing him to close ABC Carwash. (Compl.¶¶ 11, 13, 15.) Count I of the complaint is a breach of contract claim. Count II is a claim for violation of the Illinois Insurance Code, 215 ILCS 5/155, for the “unreasonable and vexatious” denial of the insurance claim.

 

Travelers moves to dismiss the complaint.

 

DISCUSSION

The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the complaint, not to resolve the case on the merits. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356, at 354 (3d ed.2004). To survive such a motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 556 (2007)). Although we must accept as true all factual allegations in the complaint, we need not accept as true its legal conclusions. Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). “[T]he plaintiff must give enough details about the subject-matter of the case to present a story that holds together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.2010).

 

A. Statute of Limitations

*2 The complaint alleges that Alassaf “initiated” the insurance claim on February 18, 2011 and that Travelers denied the claim on February 21, 2013. (Compl.¶ 18.) This action was filed in the Circuit Court of Cook County on December 16, 2013 (and removed to this court on January 13, 2014). Travelers contends that plaintiff has pleaded himself out of court because the allegations of the complaint “establish that the claims are time barred by the insurance policy’s two-year suit limitations provision.” (Def.’s Mot. to Dismiss and Mem. in Supp. at 1.)

 

A contractual limitations period is an affirmative defense. A plaintiff is not required to negate an affirmative defense in his complaint in order to survive a motion to dismiss. Clark v. City of Braidwood, 318 F.3d 764, 767 (7th Cir.2003). The exception occurs where “the allegations of the complaint itself set forth everything necessary to satisfy the affirmative defense, such as when a complaint plainly reveals that an action is untimely under the governing statute of limitations.” United States v. Lewis, 411 F.3d 838, 842 (7th Cir.2005).

 

Plaintiff attached portions of the policy to his complaint, while defendant attached the entire policy to its motion. We can consider the entire policy to be part of the pleadings because it is referred to in the plaintiff’s complaint and is central to his claim. See Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431–32 (7th Cir.1993). The provision defendant relies upon can be found in an endorsement that applies to the “Commercial Inland Marine Coverage Part” of the policy and states as follows:

 

C. Legal Action Against Us

 

No one may bring a legal action against us:

 

1. Until there has been full compliance with all terms of this Coverage Part; and

 

2. More than 2 years after you first have knowledge of the direct loss or damage. But we will extend this 2 year period by the number of days between the date proof of loss is filed and the date the claim is denied in whole or in part.

 

(Def.’s Mot. to Dismiss and Mem. in Support, Ex. A, Policy at 120.) Travelers argues that the complaint arises out of a claim for losses sustained in a February 1, 2011 fire and that it is barred because it was filed more than ten months after the two-year contractual limitations period expired. It further argues that the limitations period was never tolled because plaintiff’s “own allegations establish that the earliest he may have submitted a proof of loss was February 18, 2013, … after the time to sue had already expired.” (Def.’s Mot. to Dismiss and Mem. in Supp. at 1.) In support of its argument that there was no tolling of the contractual limitations period, Travelers points to a document attached to the complaint that is titled “Sworn Statement in Proof of Loss (For Use With Replacement Cost Coverages).” In that notarized document, Alassaf filled in the blanks to provide information about the fire and the resulting damage, including the full cost of repair or replacement and the cash value of the claim. Alassaf signed the statement on February 18, 2013.

 

In response, plaintiff contends that the policy’s limitations period was tolled and that Travelers waived compliance with the proof-of-loss requirements. Plaintiff cites section 143.1 of the Illinois Insurance Code, which provides that “[w]henever any policy or contract for insurance … contains a provision limiting the period within which the insured may bring suit, the running of such period is tolled from the date proof of loss is filed, in whatever form is required by the policy, until the date the claim is denied in whole or in part.” 215 ILCS 5/143.1 (emphasis added). The purpose of section 143.1 is “to prevent an insurance company from sitting on a claim, allowing the limitation period to run and depriving the plaintiff of the opportunity to litigate her claim in court.” Burress–Taylor v. Am. Sec. Ins. Co., 980 N.E.2d 679, 685 (Ill.App.Ct.2012).

 

*3 The parties do not cite, and we cannot find, any provision in the policy that explicitly defines “proof of loss.” Plaintiff does refer to the following provisions contained in the “Businessowners Coverage Part” that appear under the heading “Property Loss Conditions”:

 

3. Duties in the Event of Loss or Damage

 

a. You must see that the following are done in the event of loss or damage to Covered Property:

 

…

 

(2) Give us prompt notice of the loss or damage. Include a description of the property involved.

 

…

 

(5) At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed.

 

…

 

(7) For loss or damage from other than “employee dishonesty” or “forgery” or alteration send us a signed, sworn proof of loss containing the information we request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms.

 

(Policy at 45-46 (emphasis added).) Plaintiff also cites Illinois case law for the proposition that “[w]hen an insurer denies liability for a loss claimed to be covered under [a] policy on grounds other than the insured’s failure to file a proof of loss, the insurer waives compliance with the proof-of-loss requirement.” Mathis v. Lumbermen’s Mut. Cas. Ins. Co., 822 N.E.2d 543, 547 (Ill.App.Ct.2004); State Farm Mut. Auto. Ins. Co. v. Gray, 570 N.E.2d 472, 475–76 (Ill.App.Ct.1991).

 

It is unclear from the pleadings what information plaintiff provided to Travelers to initiate his claim and whether this could constitute proof of loss; it is also unclear what Travelers requested of plaintiff. Under Illinois law, “[i]t is possible for the filing of information with an insurance company to constitute a proof of loss and to start the tolling period, if the policy does not require a particular form of proof of loss.” Hines v. Allstate Ins. Co., 698 N.E.2d 1120, 1124 (Ill.App.Ct.1998). Moreover, where the insurer knows of the loss and sufficient information is submitted to the insurer to inform it of the nature and extent of the loss, the proof-of-loss requirement may be deemed waived. Lynch v. Mid–America Fire & Marine Ins. Co., 418 N.E.2d 421, 428 (Ill.App.Ct.1981). Here, the policy requires a “signed, sworn proof of loss,” but it must contain the information Travelers “request[s]” and is due sixty days after Travelers requests it from the insured. The policy also provides that Travelers “will” supply the insured with the necessary forms. It therefore appears that the insured’s duty to provide a “signed, sworn” formal proof of loss is triggered only by Travelers’ request and provision of forms. It is unclear from the pleadings whether Travelers made such a request and/or provided the necessary forms. There is also the possibility that Travelers would be estopped by its conduct to assert the policy’s limitations period or that its conduct could constitute a waiver of the proof-of-loss requirement. See, e.g., Hines, 698 N.E.2d at 1124–25; Tarzian v. West Bend Mut. Fire Ins. Co., 221 N.E.2d 293, 299 (Ill.App.Ct.1966). Therefore, we are unable to say that the pleadings “plainly reveal” that this action is untimely. There are a number of issues surrounding defendant’s limitations defense that cannot be resolved at this juncture. Accordingly, the motion to dismiss will be denied to the extent that it is premised on the contractual limitations period.

 

B. Standing

*4 Travelers asserts that alternatively, Alassaf has no standing to sue on the policy because it was issued to ABC Carwash, not Alassaf. The named insured on the policy is indeed ABC Carwash. (Compl., Ex. A.) The complaint makes several references to ABC Carwash as being “plaintiff’s business” but does not allege any facts that adequately describe Alassaf’s relationship with ABC Carwash for purposes of standing. For instance, was it a sole proprietorship—was he doing business as ABC Carwash? Plaintiff’s single-sentence response to defendant’s argument is that “Alassaf is the appropriate beneficiary Plaintiff because ABC Carwash is no longer in existence.” (Pl.’s Resp. at 2.) This response fails to indicate the nature of Alassaf’s relationship with the insured, and in any event the complaint must contain allegations indicating that Alassaf is or was in privity with ABC Carwash or is an assignee or direct third-party beneficiary, so that he has standing to sue on the policy. The complaint will therefore be dismissed without prejudice, and plaintiff will be given leave to file an amended complaint, if he is able to do so, to include facts indicating that he has standing to sue on ABC Carwash’s insurance policy.

 

C. Statutory Claim Under 215 ILCS 5/155

In Count II, plaintiff alleges that Travelers violated the Illinois Insurance Code, 215 ILCS 5/155, by unreasonably and vexatiously denying the insurance claim in that Travelers had “no reasonable basis to conclude that the Plaintiff was in any way connected to the fire that occurred at his business.” (Compl.¶ 19.) The statute provides in relevant part:

 

In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:

 

(a) 60% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;

 

(b) $60,000;

 

(c) the excess of the amount which the court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action.

 

215 ILCS 5/155(1). Section 155 is strictly construed. Its statutory penalties may not be awarded “simply because an insurer takes an unsuccessful position … but only where the evidence shows that the insurer’s behavior was willful and without reasonable cause.” Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co.,200 F.3d 1102, 1110 (7th Cir.2000). An insurer’s conduct is not vexatious and unreasonable if: (1) there is a bona fide dispute concerning the scope and application of insurance coverage; (2) the insurer asserts a legitimate policy defense; (3) the claim presents a genuine legal or factual issue regarding coverage; or (4) the insurer takes a reasonable legal position on an unsettled issue of law. Id.

 

Travelers argues that plaintiff has failed to state a claim in Count II because no facts are alleged from which we could reasonably infer that Travelers acted vexatiously and unreasonably. We agree. Alleging that Travelers had no reasonable basis to determine that arson occurred is conclusory. In plaintiff’s response, he presents a new theory, contending that it “does not take over two years to investigate the cause of a fire.” (Pl.’s Resp. at 6.) It is now plaintiff’s position that Travelers unreasonably waited for two years to deny the claim for the purpose of thwarting litigation by asserting the contractual limitations period. Plaintiff concedes that under Illinois law, delay by itself is insufficient to support a claim under § 155, but contends that delay coupled with “other culpable conduct” can be considered vexatious and unreasonable. See, e.g., Indus. Enclosure Corp. v. N. Ins. Corp. of New York, No. 97 C 6850, 1998 WL 852845, at *6–7 (N.D.Ill. Nov. 30, 1998).

 

The problem is that plaintiff has not alleged facts from which we can reasonably infer that Travelers engaged in any culpable conduct. Simply alleging that Travelers took two years to deny the claim with the intent of thwarting litigation would not be sufficient; plaintiff must allege facts from which we could infer that Travelers had that intent. Pointing to defendant’s assertion of the contractual statute of limitations in this lawsuit is in our view insufficient.

 

*5 Count II will be dismissed at this time without prejudice. We believe it would be premature for plaintiff to attempt an amended Count II before he has learned the factual basis for the defendant’s denial of his insurance claim. This would result in another motion to dismiss for lack of specificity. Assuming that the plaintiff can successfully amend Count I by alleging standing, the parties should conduct discovery on Count I, which will include the basis for defendant’s denial of coverage. When that discovery has been completed, the plaintiff may, if he believes it is warranted, move for leave to amend the complaint to add a § 155 claim.

 

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss the complaint [5] is granted, and the complaint is dismissed without prejudice. Plaintiff is given leave to file by July 21, 2014 an amended complaint for breach of contract that sufficiently alleges standing. A status hearing is set for July 23, 2014 at 10:30 a.m. to discuss the standing issue.