Michael Wiggins v. Universal Protection Services LLC ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1054
__________
MICHAEL WIGGINS,
Appellant
v.
UNIVERSAL PROTECTION SERVICE, LLC; LOLA WATSON,
Site Supervisor; PATRICE O’ROURKE, Human Resources
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-21-cv-00303)
District Judge: Honorable Mitchell S. Goldberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2023
Before: SHWARTZ, BIBAS, and MONTGOMERY-REEVES, Circuit Judges
(Opinion filed: August 7, 2023)
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OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Michael Wiggins appeals the District Court’s orders vacating
entry of default and dismissing his claims of sex discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. against his former employer,
Universal Protection Service, LLC, d/b/a Allied Universal (“Allied Universal”). For the
reasons that follow, we will affirm the District Court’s judgment.
I.
In early August 2019, Wiggins began work as a security officer at Episcopal
Hospital (“Episcopal”) as an employee of Allied Universal. Wiggins alleges that the site
supervisor at Episcopal, Lola Watson, preferentially scheduled female security officers
for sitting shifts and male security officers for standing shifts. In mid-August, Account
Manager Steven Pease approved a female security guard’s request to swap her standing
shift in the Emergency Room that day for Wiggins’s sitting shift in the hospital lobby.
The female employee requested the switch because she said she had been traumatized.
Wiggins opposed the shift swap and complained. Pease then disciplined him for
unprofessional conduct and Watson subsequently assigned him to only standing shifts as
well as a Sunday shift although she knew he attended church on Sundays and was
unavailable to work.
In late September 2019, Wiggins transferred from Episcopal to a security officer
position at Penn Presbyterian Hospital (“Presbyterian”), again as an employee of Allied
Universal. During a shift in December 2019, Wiggins charged and yelled at another
security guard, Iesha Estevez, after she allegedly threw water at him and cursed,
threatened, and insulted him. Both Estevez and Wiggins were terminated.
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The next year, Wiggins sought work once again as a security officer for Allied
Universal and was refused positions at both Presbyterian and Episcopal. Wiggins learned
that Allied Universal human resources employee Patrice O’Rourke had categorized him
as ineligible for rehire after his altercation with Estevez. O’Rourke refused to rehire
Wiggins, yielding only after he pursued a union grievance. Watson also opposed
Wiggins’s return to Episcopal, but Pease approved the rehire decision.
On Wiggins’s second day back at Episcopal in September 2020, Watson allegedly
came to the hospital to monitor him although she was not scheduled to work, criticized
him for wearing his Presbyterian uniform instead of his Episcopal uniform, assigned a
female employee to watch him and report his infractions, referred to him as “fucked up,”
tried to send him home after discovering he missed a contraband cigarette lighter on the
x-ray scanner and had not completed training paperwork, induced Episcopal to request
his termination, and then terminated him without progressive discipline. See Compl. at p.
14.
In January 2021, Wiggins filed a federal complaint against Allied Universal,
Watson, and O’Rourke, alleging sex and religious discrimination under Title VII and
tortious interference with contract under Pennsylvania law. The District Court granted
Wiggins’s motion to proceed in forma pauperis and dismissed with prejudice the claims
against Watson and O’Rourke. Wiggins’s claims against Allied Universal were permitted
to proceed.
After Allied Universal failed to file a timely answer or responsive pleading, the
District Court granted Wiggins’s motion for entry of default pursuant to Federal Rule of
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Civil Procedure 55(a) and ordered him to file a default judgment motion. Soon after,
Allied Universal filed a motion to set aside the default under Federal Rule of Civil
Procedure 55(c). In July 2022, the District Court granted the motion to set aside default
and denied as moot Wiggins’s motion for default judgment.
Allied Universal filed a motion to dismiss for failure to state a claim. The District
Court granted the motion, dismissing with prejudice the tortious interference claim and
the sex and religious discrimination claims for events in 2019, and dismissing without
prejudice and with leave to amend concerning the sex and religious discrimination claims
for events in September 2020. Wiggins then filed an amended complaint alleging sex
discrimination and breach of contract, and Allied Universal filed a motion to dismiss. The
District Court granted the motion, dismissing with prejudice the claims in Wiggins’s
amended complaint and denying his motion for leave to amend his amended complaint.
Wiggins timely appealed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review for
abuse of discretion the District Court’s grant of Allied Universal’s motion to set aside
default. See United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir.
1984). We exercise plenary review over the District Court’s dismissal of Wiggins’s
claims under Federal Rule of Civil Procedure 12(b)(6). See Castleberry v. STI Grp., 863
F.3d 259, 262-63 (3d Cir. 2017). To survive a motion to dismiss, a complaint must allege
facts sufficient to “state a claim to relief that is plausible on its face.” See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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(2007)). Pleadings of pro se plaintiffs are construed liberally. See Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). But “pro se litigants still must allege
sufficient facts in their complaints to support a claim.” Id. at 245. 1
III.
We agree with the District Court that Wiggins failed to state claims for Title VII
sex discrimination and find no abuse of discretion in the District Court’s decision to
vacate the default.
First, we conclude that the District Court did not abuse its discretion in setting
aside the default because it properly weighed the relevant factors: “(1) whether the
plaintiff will be prejudiced; (2) whether the defendant has a meritorious defense; [and]
(3) whether the default was the result of the defendant’s culpable conduct.” $55,518.05 in
U.S. Currency, 728 F.2d at 195. This Court “does not favor entry of defaults or default
judgments” and “require[s] doubtful cases to be resolved in favor of the party moving to
set aside the default judgment so that cases may be decided on their merits.” Id. at 194-95
(citations and internal quotation marks omitted). We agree with the District Court that
Allied Universal had a meritorious defense. We also agree with the District Court that
there was no prejudicial delay, that having to pursue his action on the merits was not
prejudicial to Wiggins, and that Allied Universal’s lapse in realizing Wiggins had served
1
In his appellate brief, Wiggins does not dispute the District Court’s denial of his motion for leave to amend his
amended complaint or his motion for reconsideration, its dismissal of his claims against the individual defendants,
or its dismissal of his claims of religious discrimination, tortious interference with contract, or breach of contract
against Allied Universal; nor does he develop any retaliation claim. Therefore, he has forfeited any challenge to the
District Court’s resolution of those issues. See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016) (stating that
arguments not developed in the appellant’s opening brief are forfeited).
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two Title VII lawsuits on the company simultaneously was not culpable conduct.
Next, we agree with the District Court that Wiggins’s claims are time-barred as to
his 2019 stint at Episcopal. Wiggins filed his EEOC complaint on January 5, 2021, more
than 300 days after he was allegedly constructively discharged in September 2019. See
Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (stating that to
bring a Title VII suit in Pennsylvania, a plaintiff must first file an EEOC complaint
within 300 days of the alleged act). The claims are thus time-barred. See Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). While Wiggins invokes the
“continuing violation” doctrine, it does not apply to discrete, individually actionable
conduct such as Wiggins’s alleged constructive discharge in 2019 or his underlying
allegations that Watson scheduled shifts based on sex. See Green v. Brennan, 578 U.S.
547, 564 (2016) (holding that a constructive discharge claim accrues upon the
employee’s resignation); Morgan, 536 U.S. at 114 (“Each incident of discrimination and
each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful
employment practice.’”). Accordingly, Wiggins’s claims are timely only to the extent that
he alleges conduct occurring during his 2020 stint at Episcopal.
We also agree with the District Court’s dismissal of Wiggins’s claims concerning
his 2020 termination—whether construed as alleging discrimination or hostile work
environment—because he failed to adequately plead that he was harassed and terminated
in 2020 because of his sex. See Mandel, 706 F.3d at 167 (explaining that a sex-based
hostile work environment claim requires intentional discrimination because of sex,
among other elements). Wiggins relies largely on the fact that O’Rourke and Watson are
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women, but that alone is not enough to show discriminatory animus. See Iadimarco v.
Runyon, 190 F.3d 151, 156 (3d Cir. 1999). Further, while he alleged that Watson treated
women preferentially, he has provided only the most general of allegations and included
no allegations that his potential comparators were “similarly situated” so as to support an
inference of discriminatory scheduling. See In re Tribune Media Co., 902 F.3d 384, 403
(3d Cir. 2018) (stating that comparators must be similarly situated in all respects); see
also Iqbal, 556 U.S. at 678 (stating that a complaint must show “more than a sheer
possibility” of unlawful conduct and pleading “facts that are merely consistent with a
defendant’s liability . . . stops short of the line between possibility and plausibility of
entitlement to relief” (quotation marks omitted)).
Accordingly, we will affirm the judgment of the District Court.
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