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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EMMANUEL NKWENTI- :

ZAMCHO, :

: Civil No. 4:05-CV-2200

Plaintiff, :

:

v. :

: (Judge McClure)

PENNSYLVANIA COLLEGE OF :

TECHNOLOGY, :

:

Defendant. :

O R D E R

March 3, 2006

BACKGROUND:

On October 27, 2005, plaintiff Emmanuel Nkwenti-Zamcho filed a four-count

complaint in the Middle District of Pennsylvania against his employer Pennsylvania

College of Technology (“Penn College”). Counts I and III of the complaint allege

hostile work environment claims based on national origin in violation of federal and

state law. Counts II and IV of the complaint allege claims for racial discrimination

under federal and state law.

On December 27, 2005, defendant filed a motion to dismiss the complaint

pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief

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can be granted. The matter is now ripe for our review.

For the following reasons we will grant defendant’s motion to dismiss in

part. Plaintiff’s requests for punitive damages in connection with his PHRA claims

are dismissed.

DISCUSSION:

I. Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the court must view all allegations in the complaint as true and construe all

inferences in the light most favorable to plaintiff. Hishon v. King & Spalding, 467

U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling

on a motion to dismiss the court primarily considers the allegations of the pleading,

but is not required to consider legal conclusions alleged in the complaint. Kost, 1

F.3d at 183. At the motion to dismiss stage, the court considers whether plaintiff is

entitled to offer evidence to support the allegations in the complaint. Maio v.

Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should be dismissed

only if the court, from evaluating the allegations in the complaint, is certain that

under any set of facts relief cannot be granted. Conley v. Gibson, 355 U.S. 41, 45-

46 (1957); Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997);

Markowitz v. Northeast Land, Co., 906 F.2d 100, 103 (3d Cir. 1994).

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The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the

non-moving party can prove no set of facts in support of its allegations, then a

claim must be dismissed “without regard to whether it is based on an outlandish

legal theory or on a close but ultimately unavailing one.” Id. at 327.

II. Statement of Relevant Facts

The following facts are taken from the plaintiff’s complaint, with all

inferences taken in a light most favorable to plaintiff. Plaintiff Emmanuel NkwentiZamcho is currently employed by defendant Penn College as an Assistant

Professor of International Business and Business Ethics. Nkwenti-Zamcho has

been continuously employed by defendant since August 1997. Plaintiff is a black

male and a naturalized citizen of the United States. Nkwenti-Zamcho was born in

Cameroon, West Africa and speaks English with a British accent due to his national

origin.

On September 20, 2002, Edward Henninger, Dean of the School of

Business, sent plaintiff an e-mail that chastised him about the teaching of a

Customer Relations course that had been taught by plaintiff and others as a

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Consumer Behavior course without a formal curriculum name change. In a meeting

with the dean plaintiff explained that the change in the content of the course had

been done prior to the dean’s employment with the approval of the department. 

The dean was infuriated with plaintiff and told his colleagues that he would teach

Nkwenti-Zamcho a lesson for teaching the class. Plaintiff asserts that thereafter the

dean abused his authority and engaged in a pattern of harassment.

At the beginning of the 2002 fall semester plaintiff decided to prepare himself

for promotion to Associate Professor. This required that he obtain many more

recent student evaluations. In order to obtain more student evaluations plaintiff

consulted with the dean. The dean agreed to have the student evaluations done and

further asked if he could also observe the plaintiff’s classes. Plaintiff agreed and

the dean attended at least one class in the Fall and made suggestions which plaintiff

later incorporated into his teaching.

In January 2003 plaintiff submitted his application for promotion. Shortly

thereafter, plaintiff met with the dean. The dean informed plaintiff that he would be

scheduling visits to the plaintiff’s classes. In February 2003 the dean attended two

of plaintiff’s classes. After observing plaintiff teach affirmative action in a Business

Ethics class the dean informed plaintiff that he disagreed with his approach to the

subject. The dean said that plaintiff should have approached the material as a moral

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issue and not as a matter of fact or law. The dean scheduled another observation

of plaintiff’s teaching in March 2003. Following this class, the dean's review

criticized plaintiff in several ways including the diction and intonation of his speech. 

In April 2003 Nkwenti-Zamcho learned that he had been unsuccessful in his

application for promotion and that one of the main reasons given was a lack of

endorsement from the dean. On May 22, 2003, after more observations by the

dean and separately by Associate Dean Marcinkiewicz, plaintiff met with the dean,

who again discussed Plaintiff's diction and intonation of his speech and how

plaintiff taught affirmative action.

Only after plaintiff complained to his union in the fall of 2003 about the

dean’s plan to evaluate more of his classes in 2003-2004 school year, did the

classroom visits by the dean abate for a short period of time. However, student

evaluations continued for all of his classes. Plaintiff’s scheduled Business Ethics

class for the 2004 spring semester was reassigned by the dean for purposes of

diversity. But by the end of September 2003, plaintiff was assigned to teach

another section of Business Ethics for the following spring’s semester. Student

evaluations continued throughout the 2003-2004 school year.

In about May 2004 plaintiff submitted his claim of discrimination to the

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EEOC.1 On August 3, 2005, the EEOC issued a dismissal and notice of rights to

plaintiff stating that it could not conclude, based upon the information obtained

from its investigation that there were violations of the civil rights statutes and

provided plaintiff with ninety days to initiate a lawsuit. (Rec. Doc. No. 1, Ex. A.)

In July 2004 plaintiff was advised that the dean was recommending that

plaintiff be placed on an instructional development plan. After a formal plan was

proposed and plaintiff initially challenged its implementation, plaintiff ultimately

acquiesced to the development plan. In each of the 2004 fall and 2005 spring

semesters, the dean visited three of plaintiff’s classes. Also as part of the

development plan plaintiff attended a professional development seminar in May

2005. During the 2005 fall semester students were again asked to evaluate four of

plaintiff’s five classes. No other professor with permanent status employed by the

defendant has been subjected to the number or frequency of evaluations, whether

by the dean or students, as plaintiff during the time period spanning the 2001 spring

semester through the 2005 fall semester.

III. Nkwenti-Zamcho’s Title VII & PHRA Claims

At the outset, we note that PHRA claims are interpreted coextensively with

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Title VII claims. Douris v. Genaurdi’s Family Markets, Inc., 132 F. A’ppx 425, 425

n.1 (3d Cir. 2005) (citing Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996));

Dennison v. Pennsylvania Dept. Of Corrections, 268 F. Supp. 2d. 387, 405 n.16

(M.D. Pa. 2003.) (Munley, J.). Therefore, our analysis under Title VII applies with

equal force to Nkwenti-Zamcho’s claims under the PHRA.2

A. The Correct Standard of Review

Defendant directs the court to the McDonnell Douglas evidentiary standard,

albeit not by name, for establishing a prima facie case of employment

discrimination. (Def.’s Br. Supp. Mot. Dismiss, Rec. Doc. No. 9, at 4-5.) After

introducing that standard defendant argues that plaintiff has failed to establish

several elements of the prima facie case, namely, an adverse employment action and

a discriminatory action or inference. (Id. at 5-7.) Defendant also asserts that

plaintiff has failed to state a cause of action for employment discrimination under

the hostile work environment theory by citing to the elements of the prima facie

case of the hostile work environment. (Id. at 7-8.) Plaintiff’s brief in opposition

addresses each of defendant’s arguments in turn.

Neither party has briefed the correct standard by which this court must

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review defendant’s motion to dismiss, although plaintiff’s suggestion that he is

entitled to discovery before establishing a prima facie case is headed in the right

direction. In 2002, a unanimous United States Supreme Court explicitly stated that

the McDonnell Douglas prima facie case “is an evidentiary standard, and not a

pleading requirement.” Sweirkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002);

Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004); Gavura v. Pa.

State House of Representatives, 55 F. App’x 60, 63-65 (3d Cir. 2002); see also

Evancho v. Fisher, 423 F.3d 347, 352-53 (3d Cir. 2005) (quoting Sweirkiewicz);

James v. Virgin IslandsWater & Power Authority, 119 F. App’x 397, 398-400 (3d

Cir. 2005) (discussing District Court’s alleged application of the wrong standard in

dismissing Title VII case). Defendant’s unsupported argument to the contrary,

highlighted in its reply brief at page 9, is without merit in light of the Supreme

Court’s explicit holding in Sweirkiewicz.

In Sweirkiewicz a unanimous Supreme Court rejected the Second Circuit’s

heightened pleading requirement for employment discrimination cases that required

a plaintiff to plead a prima facie case of discrimination in order to survive a motion

to dismiss. The Court noted that a heightened pleading requirement for an

employment discrimination plaintiff conflicts with Fed. R. Civ. P. 8(a)(2). 

Sweirkiewicz, 534 U.S. at 512. Under that rule all that is required is a “short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). The plaintiff’s “statement must simply ‘give the defendant fair

notice of what the plaintiff’s claim is and the grounds upon which it rests.’”

Sweirkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 

Even before Sweirkiewicz, this was what was required of employment

discrimination plaintiffs in the Third Circuit. Weston v. Pennsylvania, 251 F.3d

420, 429-430 (3d Cir. 2001).

The parties’ arguments about the prima facie case are premature. The

briefed matters would be relevant if this court were reviewing the case at the

summary judgment stage, but we are not. All that is required of plaintiff at this

stage is the straightforward requirements of Fed. R. Civ. P. 8(a). Plaintiff has

provided a short and plain statement of the claim showing that he is entitled to

relief. He has asserted that he was discriminated against on the basis of his race

and national origin. If he is successful with his hostile work environment claim he

will not need to adduce an adverse employment action.

IV. Punitive Damages

Defendant also asserts that plaintiff has failed to allege conduct on the part of

the defendant that is outrageous or especially egregious and that therefore his claim

for punitive damages must be dismissed. Defendant also asserts that plaintiff’s

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claim for punitive damages under the PHRA is barred as a matter of law.

At this stage we will not preclude plaintiff from pursuing punitive damages

for his claims under Title VII. Defendant is correct, however, that punitive

damages are not available under the PHRA. Hoy v. Angelone, 720 A.2d 745, 751

(Pa. 1998); see also Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565, 570

n.3 (3d Cir. 2002) (citations omitted); Cortes v. R.I. Enterprises, Inc., 95 F. Supp.

2d 255, 260 (M.D. Pa. 2000) (Caputo, J.) (citing Hoy). Therefore, plaintiff’s

demand for punitive damages as they relate to his claims under the PHRA must be

dismissed as a matter of law. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendant’s motion to dismiss is granted in part. (Rec. Doc. No. 8.)

2. Plaintiff’s request for punitive damages in connection with his PHRA

claims (Counts III and IV), are dismissed as a matter of law.

3. Defendant’s answer to all remaining claims shall be due on or before

March 20, 2006. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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