MCGHEE v. THOMAS JEFFERSON UNIVERSITY HOSPITAL
Filing
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MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/28/2013. 8/30/2013 ENTERED AND COPIES E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DARLYNDA MCGHEE,
Plaintiff,
v.
THOMAS JEFFERSON UNIVERSITY
HOSPITAL,
Defendant.
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CIVIL ACTION
NO. 12-2919
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
August 28, 2013
Darlynda McGhee (Plaintiff) brings four claims against
Thomas Jefferson University Hospital (Defendant): a Fair Labor
Standards Act (FLSA) maximum-hours violation (Count I); FLSA
retaliation (Count II); breach of contract under Pennsylvania
law (Count III); and retaliation under 42 U.S.C. § 1981 (Count
IV).
Defendant moves to dismiss all claims. Plaintiff
stipulates to dismissing the FLSA claims. Therefore, the Court
need only address the breach-of-contract claim and the § 1981
retaliation claim.
I.
BACKGROUND
Plaintiff worked for Defendant from May 2009 to April
9, 2012, performing registration tasks. Third Am. Compl. ¶¶ 6,
8, 41, ECF No. 1. On January 7, 2011, Plaintiff met with her
supervisor, Janet James, who offered Plaintiff a promotion to
Endoscopy Registrar, which included an increase in pay. Id.
¶ 23. Plaintiff accepted the offer the same day. Id. But as of
March 3, 2011, Plaintiff had not received the new position or
the pay raise. Id. ¶ 24. That day, she brought the issue to
James’s attention, and James told her to move to a new
workstation in conjunction with the promotion and raise. Id. The
next day, Plaintiff emailed James, asking why she had not
received the promotion and raise on which the two agreed. Id.
¶ 25. On March 9, 2011, James emailed Plaintiff, confirming that
Plaintiff accepted the position on January 7, 2011,
acknowledging that the promotion and pay raise should have
become effective on that date, and promising that the raise
would be retroactive from that date. Id. ¶ 27. On July 7, 2011,
Plaintiff sent an email to another supervisor, Michelle Cannion,
stating that she still had not received her promotion or the
corresponding raise. Id. ¶ 28. And on August 29, 2011, Plaintiff
sent yet another email to Cannion, again stating that she had
not received the promised pay raise. Id. ¶ 29.
On September 28, 2011, Plaintiff received an email
from James in which James criticized her for inappropriate
behavior and threatened to fire her if she displayed such
2
behavior again. Id. ¶ 30. The email concerned a meeting between
Plaintiff, James, and Cannion, although Plaintiff claims she did
not behave improperly during the meeting. Id. ¶ 31. On October
7, 2011, Cannion requested that Plaintiff meet with her again to
discuss Plaintiff’s job. Id. ¶ 32. Plaintiff told Cannion that
she would not attend the meeting without her attorney present
because she feared Cannion would retaliate against her “for
complaining about not being allowed to take her lunch break and
not being paid for the break.” Id. ¶ 33.1
On or around December 16, 2011, Plaintiff filed an
EEOC complaint against Defendant, alleging that she was being
discriminated against, retaliated against, and subjected to a
hostile work environment because of her race. Id. ¶ 34.
Plaintiff alleges Defendant was informed that she had filed an
EEOC complaint against it based on race discrimination sometime
after filing. Id. ¶ 35.
After Defendant was made aware of the EEOC complaint,
Plaintiff alleges that its retaliation against her “became even
1
From January 2011 until she was terminated in April
2012, Plaintiff claims she was forced to work during lunch and
was not paid overtime for doing so. Id. ¶ 21. Plaintiff
complained several times about the issue and alleges she was
retaliated against in response. Id. ¶¶ 13, 16, 18. She further
claims that these policies violated the FLSA. Id. ¶¶ 46-52. As
mentioned above, however, she stipulates to dismissing her FLSA
claims.
3
more severe,” id. ¶ 36, and lists the following actions taken
against her. First, on March 14, 2012, Plaintiff was disciplined
for using foul language against two co-workers, which she
denies. Id. ¶ 38. Second, on March 30, 2012, Plaintiff was
disciplined for allegedly being insubordinate when asked to
perform a task; Defendant agrees that Plaintiff performed the
task but that she did so in a sarcastic manner, which Plaintiff
does not dispute. Id. ¶ 38. Third, on April 5, 2012, James and
Cannion told Plaintiff in a meeting that she was suspended
indefinitely for insubordination. Id. ¶ 39. James and Cannion
based the suspension on another of Plaintiff’s requests to call
her attorney when asked to attend a meeting with James—she
feared that James was going to “unfairly discipline her,
belittle her, and discriminate against her again.” Id. ¶ 40.
Finally, on April 9, 2012, Plaintiff was terminated. Id. ¶ 41.
Plaintiff also makes a bare allegation that similarly situated
employees who did not file complaints of racial discrimination
with the EEOC were not similarly disciplined when they, inter
alia, failed to perform tasks, “called off of work at the last
minute,” and/or failed to arrive to work on time. Id. ¶ 42.
4
II.
PROCEDURAL HISTORY
Plaintiff filed two initial, pro se complaints on May
7, 2012, and May 31, 2012. Compls., ECF Nos. 4, 6. The Court
dismissed the complaints without prejudice for failure to state
a claim upon which relief may be granted and provided leave to
amend. Mem. Op., May 31, 2012, ECF No. 2. Plaintiff filed an
amended pro se complaint on June 29, 2012, but the Clerk of
Court returned it to her as unsigned. Order, July 12, 2012, ECF
No. 7. After signing and filing the Amended Complaint (ECF No.
8), the Court dismissed it as failing to state a claim and
provided a 30-day period in which to amend for a second time.
Mem. Op., July 24, 2012, ECF No. 10. The Court also ordered all
filings to be placed under seal because Plaintiff attached
several medical documents that contained third-party, private
information. Order, July 23, 2012, ECF No. 9. After obtaining
counsel, Plaintiff moved for leave to file the Second Amended
Complaint, although she did so on January 22, 2013, five months
after the deadline to amend. Pl.’s Mot. Leave to File Second Am.
Comp., ECF No. 14. On January 24, 2013, the Court granted the
Motion. Order, Jan. 24, 2013. The Court also lifted the seal on
all filings in response to a motion by Defendant, leaving only
Plaintiff’s first three complaints impounded. Order, May 7,
2013, ECF No. 20.
5
After receiving proper summons and service of the
Second Amended Complaint, Defendant timely filed a motion to
dismiss the Second Amended Complaint on June 10, 2013. Plaintiff
moved to file a third amended complaint on June 24, 2013, and
the Court granted the motion. Order, July 15, 2013, ECF No. 30.
Defendant moved to dismiss the Third Amended Complaint, and
Plaintiff responded. Finally, the Motion to Dismiss the Third
Amended Complaint is now ripe for disposition.
III. LEGAL STANDARD
In considering a motion to dismiss for failure to
state a claim upon which relief can be granted under Rule
12(b)(6) of the Federal Rules of Civil Procedure, the court must
“accept as true all allegations in the Complaint and all
reasonable inferences that can be drawn therefrom, and view them
in the light most favorable to the non-moving party.”
DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 215 (3d
Cir. 2007) (internal citations omitted). In order to withstand a
motion to dismiss, a Complaint’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007). This
“requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”
6
Id. at 555 (internal citation omitted). Although a plaintiff is
entitled to all reasonable inferences from the facts alleged, a
plaintiff’s legal conclusions are not entitled to deference and
the court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S.
265, 286 (1986) (cited with approval in Twombly, 550 U.S. at
555).
The pleadings must contain sufficient factual
allegations so as to state a facially plausible claim for
relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583
F.3d 187, 190 (3d Cir. 2009). A claim possesses such
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.’” Id. (quoting
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). In deciding a
Rule 12(b)(6) motion, the court is to limit its inquiry to the
facts alleged in the Complaint and its attachments, matters of
public record, as well as undisputedly authentic documents if
the complainant’s claims are based upon these documents. See
Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261
(3d Cir. 1994); Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
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IV. DISCUSSION
Defendant argues that Counts III and IV of the Third
Amended Complaint must be dismissed with prejudice because they
fail to state claims upon which relief can be granted.
Specifically, Defendant argues that, regarding Plaintiff’s
retaliation claim, she fails to allege she engaged in protected
activity and fails to allege facts showing a causal connection.
Defendant further argues that Plaintiff’s breach-of-contract
claim fails because she cannot overcome the employee-at-will
doctrine.
Plaintiff responds that she has alleged sufficient
facts regarding her § 1981 retaliation and breach-of-contract
claims. Regarding her § 1981 retaliation claim, she argues that
she has raised a reasonable expectation that discovery will
reveal evidence to show she engaged in protected activity and
established a causal relationship between the activity and her
termination. Regarding her breach-of-contract claim, she argues
that the employee-at-will doctrine only applies to termination
and that her breach-of-contract claim is unrelated to
termination. For the reasons that follow, the Court will grant
the Motion to Dismiss as to the § 1981 retaliation claim and
decline to exercise supplemental jurisdiction over the breachof-contract claim.
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A. Retaliation Under § 1981
Section 1981 provides that “all persons . . . shall
have the same right . . . to make and enforce contracts . . . as
is enjoyed by white citizens.” 42 U.S.C. § 1981(a) (2006). This
includes contracts for employment. Brown v. J. Kaz, Inc., 581
F.3d 175, 181 (3d Cir. 2009). In 2008, the U.S. Supreme Court
held that § 1981 encompasses retaliation claims in the
workplace. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 444-55
(2008). The requirements to establish a claim for retaliation
under § 1981 are the same as those under Title VII. Brown, 581
F.3d at 181-82. Therefore, a plaintiff can maintain a claim for
retaliation under § 1981 by pleading a prima facie case of
retaliation: (1) she engaged in protected activity; (2) her
employer took an adverse employment action against her; and (3)
there was a causal connection between her participation in the
protected activity and the adverse employment action. Id.
As Defendant concedes that it took an adverse
employment action against Plaintiff, the Court will determine
whether Plaintiff sufficiently alleges that she engaged in
protected activity and that there was a causal connection
between her participation in the activity and her termination.
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1. Protected Activity
Protected activity may consist of “formal charges of
discrimination as well as informal protests of discriminatory
employment practices, including making complaints to
management.” Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d
Cir. 1995) (internal quotations omitted). But “if no reasonable
person could have believed that the underlying incident
complained about constituted unlawful discrimination, then the
complaint is not protected.” Wilkerson v. New Media Tech.
Charter Sch. Inc., 522 F.3d 315, 322 (3d Cir. 2008). For
example, the filing of a facially invalid or frivolous EEOC
complaint does not constitute protected activity for purposes of
making out a retaliation claim. See, e.g., Slagle v. Cnty. of
Clarion, 435 F.3d 262, 267 (3d Cir. 2006).
Although Plaintiff claims that she filed an EEOC
complaint that alleges Defendant discriminated against her on
the basis of her race, she fails to allege sufficient facts to
show that it is protected activity under § 1981 for two reasons.
First, she fails to allege whether she is in fact a member of a
protected class—nowhere in the Third Amended Complaint does she
allege her race or the races of any of her supervisors. See Doe
v. Sizewise Rentals, L.L.C., No. 12-2114, 2013 WL 3746223, at *2
(3d Cir. July 18, 2013) (not precedential). As a result, the
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Third Amended Complaint does not distinguish between the races
of Plaintiff, James, and Cannione—they could all be African
American, rendering her EEOC complaint without merit. In other
words, clarifying whether or not a plaintiff is a member of a
protected class is important to show that a reasonable person
could believe that the underlying actions complained about
constituted unlawful discrimination. See Wilkerson, 522 F.3d at
322.
Notably, Plaintiff fails to claim that she is part of
a protected class despite Defendant pointing out this flaw in
the Motion to Dismiss Plaintiff’s Second Amended Complaint. See
Def.’s Mot. to Dismiss Pl.’s First Am. Compl. 25, ECF No. 23.
Thus, Plaintiff and counsel were placed on notice concerning
this deficiency in the Second Amended Complaint and yet took no
corrective action to make the required changes. Because
Plaintiff does not mention a protected class or distinguish
anyone’s races in the Third Amended Complaint, the Court cannot
determine whether her EEOC complaint was filed in good faith;
thus, she fails to sufficiently allege that she engaged in a
protected activity.
Second, although Plaintiff does allege a number of
facts regarding criticisms she received from supervisors and
other employees, she does not allege a single fact that could
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give rise to an inference of discriminatory conduct based on any
race (which, as mentioned above, is unidentified as to all
persons). She alleges that she filed an EEOC complaint that
complains of race discrimination, but nothing in the timeline
leading up to the filing of the EEOC complaint could lead a
reasonable person to believe she was the victim of any such
discrimination. She couches the negative comments and
disciplinary actions prior to that point as responses to her
complaints concerning the lack of lunch time provided at work.
See Third Am. Comp. ¶ 29-33. These allegations go to her FLSA
retaliation claim, which she stipulated to dismissing, but,
again, do not indicate any discriminatory animus.2
Plaintiff argues that she satisfies Wilkerson by
merely stating in the Third Amended Complaint that she filed an
EEOC complaint that alleges she was the victim of racial
discrimination by Defendant. She quotes language from the
opinion that she believes supports her argument:
Frankly, we are skeptical as to the reasonableness of
Wilkerson's belief that New Media committed an
2
The flaw in Plaintiff’s position is made more evident
by her subtle change to paragraph 33 of the Third Amended
Complaint in her Response—she alters “fear of being retaliated
against for complaining about not being allowed to take her
lunch break and not being paid for the break” to “fear of being
discriminated against.” Pl.’s Resp. 4. Plaintiff seems to
acknowledge the deficiency in her Third Amended Complaint by
making such a subtle yet important change.
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unlawful practice, but because we have only her
complaint before us we are not prepared to hold at
this preliminary stage that it is implausible that
Wilkerson has a good faith belief that it did.
522 F.3d at 322. But in reversing the district court’s decision
to dismiss the complaint, the Third Circuit in Wilkerson pointed
out that the plaintiff in that case tied the underlying conduct
of the defendant—a school activity that the plaintiff felt was
idolatrous—to her allegedly protected activity—her vocal
objections at the activity that she believed were protected by
the First Amendment—in a way that would permit an inference that
she objectively believed that the defendant discriminated
against her prior to engaging in said activity. Id.
Here, Plaintiff does no such thing. The Third Amended
Complaint makes no mention of Plaintiff’s belief concerning
discriminatory conduct; in fact, she avers that the negative
comments and disciplinary actions directed at her were in
response to her complaints concerning FLSA regulations. See
Third Am. Comp. ¶ 33. Because Plaintiff does not allege that she
is a member of a protected class or that any disciplinary action
or negative comments were motivated by racial animus, no
reasonable person could have believed that the underlying
incidents complained about constituted unlawful action.
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Accordingly, she fails to sufficiently allege she engaged in a
protected activity.
2. Causal Connection
Assuming arguendo that Plaintiff sufficiently pleaded
facts concerning a protected activity, she nonetheless fails to
allege a causal connection because (1) her allegation that
Defendant received notice of the EEOC complaint is insufficient;
(2) she fails to allege any temporal proximity between
Defendant’s notice and her termination or that such proximity is
unduly suggestive; and (3) she fails to allege facts indicating
a pattern of antagonism.
Under the third prong of a prima facie retaliation
claim, “a court may examine a broad array of evidence in
determining whether a sufficient causal link exists between the
protected activity and the materially adverse action.” Artz v.
Continental Cas. Co., 720 F. Supp. 2d 706, 715 (E.D. Pa. 2010)
(citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 284
(3d Cir. 2000)). Such evidence includes a “close temporal
proximity” between engaging in the protected activity and the
adverse action and circumstances indicating a “pattern of
antagonism” following the protected conduct. Marra v. Phila.
Hous. Auth., 497 F.3d 286, 302, 306 (3d Cir. 2007) (citations
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omitted). But the timing of alleged retaliatory conduct can, by
itself, support a finding of causation only “when the ‘temporal
proximity’ between the protected activity and adverse action is
‘unduly suggestive.’” Lichtenstein v. Univ. of Pittsburgh Med.
Ctr., 691 F.3d 294, 307 (3d Cir. 2012) (quoting LeBoon v.
Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir.
2007) (emphasis added)). Furthermore, “a causal link cannot be
established between a protected activity and an adverse action
if the individual administering the adverse action is unaware of
the protected activity.” Omogbehin v. Dimensions Intern., Inc.,
Civil No. 08-3939 (NLH)(KMW), 2009 WL 2222927, at *6 (D.N.J.
July 22, 2009) (citing Woods v. Bentsen, 889 F. Supp. 179, 188–
89 (E.D. Pa. 1995)).
First, Plaintiff’s claim that “Defendant was informed
that the Plaintiff filed a complaint with the EEOC alleging she
was being discriminated against because of her race,” Third Am.
Comp. ¶ 35, is a legal conclusion dressed as fact. She provides
no details of the notice or that any supervisor received
information regarding the EEOC complaint and only makes a bald
assertion that Defendant did in fact receive such notice. See
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997). The Court need not accept the conclusion as true for
purposes of evaluating the adequacy of the Third Amended
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Complaint. Accordingly, Plaintiff fails to sufficiently allege
that Defendant received notice of the EEOC complaint and, by
extension, that there exists a causal relationship between her
participation in a protected activity and her termination. This
deficiency is fatal to her § 1981 retaliation claim.
Second, even if Plaintiff sufficiently pleaded that
Defendant received notice of the EEOC complaint, Plaintiff’s
allegation of temporal proximity is also insufficient to satisfy
the causation prong because the Court has no way of knowing
whether the time period between Defendant’s notice of the EEOC
complaint and Plaintiff’s termination is “unduly suggestive” of
retaliation. LeBoon, 503 F.3d at 232. Plaintiff alleges that
four months had elapsed between the filing of the EEOC complaint
and her termination, but there is no indication of when
Defendant received notice. Defendant could have been notified of
the EEOC complaint right after its filing in December, making
the relevant period too long a time to be considered unduly
suggestive of retaliation. If Defendant received notice right
before terminating Plaintiff, then the time period would be
unduly suggestive. Because the Third Amended Complaint does not
allege a period of time between Defendant’s notice and
termination, the Court cannot determine whether Plaintiff’s
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temporal proximity is unduly suggestive of retaliation or
whether she must plead facts indicating a pattern of antagonism.
Third, assuming Defendant received notice of the EEOC
complaint shortly after its filing, necessitating a showing of a
pattern of antagonism between Defendant’s notice and
termination, Plaintiff fails to plead facts indicating such a
pattern. She alleges that Defendant unjustly disciplined her
twice before terminating her: once on March 14, 2012, for
allegedly using foul language toward two co-workers, and once on
March 30, 2012, for being insubordinate when asked to perform a
task. Third Am. Comp. ¶¶ 37-38.3 However, Plaintiff does not
dispute Defendant’s alleged reason for disciplining her the
second time; she admits that she performed the task “in a
sarcastic manner,” warranting discipline. Id. ¶ 38. Accordingly,
the only “pattern” between the protected activity and
termination is a single disciplinary action against Plaintiff
three months after she filed the EEOC complaint. Plaintiff also
alleges the existence of comparators to demonstrate a causal
connection, but this allegation is equally insufficient. See
Third Am. Comp. ¶ 42.
3
Although Plaintiff was also suspended before she was
terminated, see Third Amend. Comp. ¶ 39, her suspension was
indefinite and she received notice of termination four days
later, id. ¶ 41. Thus, the acts are so interrelated that they
should be considered as one continuous action on Defendant’s
part.
17
Plaintiff claims that she is permitted to make bare
allegations at this stage of the proceeding because she must
undertake discovery to obtain more details concerning the causal
connection. But she still needs to assert sufficient factual
content to “nudg[e] [her] claim . . . across the line from
conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 683
(2009) (citations and internal quotation marks omitted). By
failing to set forth sufficient detail concerning notice, an
unduly suggestive period of time between notice and termination,
a pattern of antagonism, and comparators, Plaintiff fails to
allege the existence of a causal link between the protected
activity and the adverse action. Therefore, the § 1981
retaliation claim must be dismissed on this ground as well.4
4
Although Plaintiff does not request to amend for a
fourth time, under Rule 15(a)(2) of the Federal Rules of Civil
Procedure, the Court has considered whether leave to amend in
this case should be granted in the interest of justice. Fed. R.
Civ. P. 15(a)(2). “In the absence of substantial or undue
prejudice, denial [of a motion to amend] must be grounded in bad
faith or dilatory motives, truly undue or unexplained delay,
repeated failure to cure deficiency by amendments previously
allowed or futility of amendment.” Heyl & Patterson Int’l, Inc.
v. F.D. Rich Hous. of V.I., Inc., 663 F.2d 419, 425 (3d Cir.
1981) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
In this case, the Court has provided Plaintiff three
opportunities to amend her complaint—two with counsel—and she
was on notice of the deficiencies concerning her § 1981
retaliation claim prior to amending for both the second and
third times. Nevertheless, she failed to cure the deficiencies.
Even if Plaintiff had requested leave to amend, she would not be
entitled to do so for yet a fourth time.
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B. Breach-of-Contract Claim
Having dismissed Plaintiff’s federal claim, the Court
will decline to exercise supplemental jurisdiction over
Plaintiff’s breach-of-contract claim. See 28 U.S.C.
§ 1367(c)(3) (“The district courts may decline to exercise
supplemental jurisdiction over a claim . . . [if] the district
court has dismissed all claims over which it has original
jurisdiction.”); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S.
635, 639 (2009) (“A district court’s decision whether to
exercise [supplemental] jurisdiction after dismissing every
claim over which it had original jurisdiction is purely
discretionary.”). In doing so, the Court does not determine
whether Plaintiff sufficiently alleges a claim for breach of
contract under Pennsylvania law.
V. CONCLUSION
For the foregoing reasons, the Court will grant
Defendant’s Motion to Dismiss as to Plaintiff’s § 1981
retaliation claim and decline to exercise supplemental
jurisdiction over her breach-of-contract claim. The Court will,
accordingly, dismiss the case.
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