Melvin Walker v. Thomas Wolf ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2427
__________
MELVIN TRENT WALKER,
Appellant
v.
THOMAS W. WOLF, GOV. OF PA.;
LESLIE RICHARDS, SEC. OF TRANSP. PA.
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-19-cv-04983)
District Judge: Honorable Petrese B. Tucker
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 22, 2022
Before: GREENAWAY, JR., PORTER and NYGAARD, Circuit Judges
(Opinion filed: July 12, 2022)
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OPINION*
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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.
Melvin Trent Walker appeals the District Court’s dismissal of his complaint. For
the reasons that follow, we will affirm in part, vacate in part, and remand to the District
Court for further proceedings.
Walker, an African American man presently fifty-five years old, has been an
employee of the Pennsylvania Department of Transportation (“PennDOT”) for over
fifteen years. In October 2019, he filed a pro se complaint in the Eastern District of
Pennsylvania, alleging violations of Title VII of the Civil Rights Act of 1964, 43 U.S.C §
2000e-2, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621.
Broadly, Walker alleged that he was systematically excluded from promotions within
PennDOT through a series of lateral reassignments and other personnel decisions that
prevented him from attaining the requisite job titles or seniority to facilitate his
advancement; all while his younger, white colleagues were not so obstructed and
achieved promotions. His complaint appeared to name the Pennsylvania Governor and
Secretary of Transportation as defendants; Walker hired a process server to effect in-
person service of the complaint on these defendants.
The Governor and Secretary moved to dismiss the complaint on the grounds that
Title VII and the ADEA do not provide for individual liability. Subsequently, Walker
filed numerous documents seeking to supplement his complaint with allegations that the
defendants also violated his constitutional rights under color of state law, see 42 U.S.C.
§§ 1981, 1983, and subjected him to a hostile work environment. The District Court
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granted the defendants’ motion to dismiss, explaining to Walker which deficiencies to
avoid should he seek to amend the claims dismissed without prejudice.
Walker then filed an amended complaint, which appeared to substitute PennDOT
as the defendant in the action and attempted to address other identified deficiencies. The
District Court then re-entered the same order of dismissal as to the original complaint,
changing only the date. The Governor and Secretary filed a motion to dismiss the
amended complaint, but before any ruling on that motion, Walker expressly moved the
District Court to amend the caption and summons to name PennDOT as the defendant in
the action, then filed a notice of appeal as to the order dismissing his original complaint.
We determined that we lacked appellate jurisdiction over that appeal because the District
Court had yet to issue a final, appealable order. See Walker v. Wolf, No. 20-2783 (3d Cir.
Jan. 21, 2021). We explained that, rather than demonstrate an intent to stand on the
complaint dismissed in part without prejudice, Walker had filed an amended complaint.
See id. (citing, inter alia, Weber v. McGrogan, 939 F.3d 232, 240 (3d Cir. 2019)).
Returning to the District Court, Walker declared his intent to stand on his
complaint, but did not specify whether that meant his original or amended complaint. See
ECF No. 22 (citing Weber, 939 F.3d at 238). The District Court responded by granting
the defendants’ motion to dismiss the amended complaint, denying Walker’s motion to
amend the complaint and summons to name PennDOT as a defendant, and granting
Walker’s motion to stand on his complaint. Walker timely filed a notice of appeal.
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We have jurisdiction under 28 U.S.C. § 1291. We exercise de novo review over an
order granting a motion to dismiss. See Davis v. Samuels, 962 F.3d 105, 111 n.2 (3d Cir.
2020). We accept all factual allegations in the complaint as true and construe those facts
in the light most favorable to the plaintiff. See Fleisher v. Standard Ins. Co., 679 F.3d
116, 120 (3d Cir. 2012). We review the denial of leave to amend for abuse of discretion.
See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).
The District Court correctly dismissed Walker’s Title VII and ADEA claims to the
extent he brought them against the Governor and Secretary of Transportation because
only “employers” may be held liable under those statutes; they do not provide for
individual liability. See Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061,
1077–78 (3d Cir. 1996) (en banc) (Title VII); Hill v. Borough of Kutztown, 455 F.3d
225, 246 n.29 (3d Cir. 2006) (ADEA).
However, we cannot say that Walker’s intent was to name those officeholders
only, and not PennDOT itself, as the defendants in this action. We note specifically
Walker’s argument to the District Court that its own guidelines for pro se employment
discrimination complainants read: “You are the plaintiff. The defendant(s) is the
employer(s) being sued. If you are filing against a government agency or department, use
the title of the head of that agency or department—such as Postmaster General, Secretary
of the Navy, Secretary of Welfare of Pennsylvania, etc.”1 Furthermore, the Federal Rules
1
Form Compl. for Empl. Discrim. 2, ¶ 1, E.D. Pa., https://www.paed.uscourts.gov/
documents/forms/frmcempf.pdf (revised May 2017).
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of Civil Procedure instruct plaintiffs to serve state government entities in a civil action
by: “(A) delivering a copy of the summons and of the complaint to its chief executive
officer; or (B) serving a copy of each in the manner prescribed by that state's law for
serving a summons or like process on such a defendant.” Fed. R. Civ. P. 15(j)(2). The
Pennsylvania rules state: “Service of original process upon the Commonwealth[,] or an
officer of the Commonwealth, or a department . . . of the Commonwealth . . .shall be
made at the office of the defendant and the office of the attorney general by handing a
copy to the person in charge thereof.” Pa. R. Civ. P. 422(a). Walker argued in his motion
to amend that he had intended to name PennDOT as the defendant, he had in fact done so
according to the District Court’s guidelines, and he had served PennDOT with process
according to the rules.2 See ECF No. 18 at 3–4.
Unless it would be futile or inequitable, plaintiffs must be afforded the opportunity
to amend a complaint that is vulnerable to dismissal for failure to state a claim, even in
the absence of a motion for leave to do so. See Alston v. Parker, 363 F.3d 229, 235 (3d
Cir. 2004). Considering that the District Court’s dismissal of Walker’s Title VII and
ADEA claims hinged on the identity of the defendants, we cannot say on the record
2
We also note that the District Court previously dismissed Walker’s complaint in a
separate but closely related action for failure to properly serve PennDOT, the lone named
defendant, after he attempted service via certified mail. See Order, Walker v. Pa. Dep’t
Transp., No. 2-17-cv-4720 (E.D. Pa. May 22, 2019), ECF No. 11. Walker has asked the
District Court on at least one occasion for “the cases [to] be joined.” Am. Compl. 12,
ECF No. 15. We express no opinion on the propriety of consolidating these two actions.
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before us whether such amendment would have been futile, and we believe the District
Court would be better poised to undertake that analysis. See Shane v. Fauver, 213 F.3d
113, 117 (3d Cir. 2000). Perhaps the District Court’s denial of Walker’s request to
amend—and associated dismissal of the amended complaint—was based on his
subsequent motion to stand on his complaint. However, our impression of Walker’s intent
is informed by the timing of the District Court’s re-entry of its order dismissing the
original complaint. An amended complaint generally “supersedes the original and renders
it of no legal effect.” W. Run Student Hous. Assocs. v. Huntington Nat. Bank, 712 F.3d
165, 171 (3d Cir. 2013) (citation omitted). Because the District Court’s order was re-
entered after Walker had filed his amended complaint, yet by its terms only addressed the
original complaint, see ECF No. 16, we do not construe Walker’s subsequent intent to
stand on his complaint as referring to his original, rather than amended, complaint.
The timing of the District Court’s re-entered order also calls into question the
dismissal of Walker’s remaining claims, in which he alleged that PennDOT’s mandatory
diversity and inclusion training infringed on his right to religious freedom and created a
hostile work environment.3 When Walker initially made these arguments in various
3
To the extent that Walker attempted to plead the “tort of outrage,” also known as
intentional infliction of emotional distress, see Armstrong v. Paoli Mem’l Hosp., 633
A.2d 605, 608 (Pa. Super. Ct. 1993), any error by the District Court in overlooking the
amended complaint’s single, vague reference to said tort was harmless, see Am. Compl.
10, ECF No. 15. Walker did not plead that he suffered any physical harm, nor did he
identify any conduct “so outrageous in character” and “extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community,” as required to state such a claim. Reedy v.
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supplemental “notices” filed after his original complaint, the District Court dismissed the
claims, explaining that Walker’s piecemeal filings did not satisfy the “short and plain
statement” requirement of Federal Rule of Civil Procedure 8(a)(2), then instructed: “If
Plaintiff would like to add the claims discussed in the Notices—the Constitutional
questions and an employment discrimination on the basis of sex claim—Plaintiff must
amend his Complaint to include those claims. Plaintiff also must include factual
allegations to show the Court that the Plaintiff is entitled to relief.” ECF No. 14 at 4–5
n.1. As explained above, after Walker filed an amended complaint in response to these
instructions, the District Court immediately re-entered the order of dismissal that touched
only the original filings, and not the curative amendment. Because the later decision to
dismiss the amended complaint may have been clouded by the same confusion over
Walker’s intent, we cannot say that the District Court’s decision was proper. Because
“we ordinarily do not consider issues not addressed by the district court in the first
instance,” Howard Hess Dental Lab’ys v. Dentsply Int’l, 602 F.3d 237, 253 n.6 (3d Cir.
2010), we decline to evaluate the merits of these claims before the District Court has had
occasion to do so.
Accordingly, we will affirm the dismissal of Walker’s Title VII and ADEA claims
against the Governor and Secretary of Transportation individually; vacate the order
Evanson, 615 F.3d 197, 231–32 (3d Cir. 2010) (quoting Field v. Phila. Elec. Co., 565
A.2d 1170, 1184 (Pa. Super. Ct. 1989)). Accordingly, he has not stated a claim for relief
on this theory, as it has no application to these facts.
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denying leave to amend the pleadings to add PennDOT as the defendant; vacate the
District Court’s dismissal of the amended complaint; vacate the order granting Walker’s
motion to stand on his complaint; and remand to the District Court for further
proceedings consistent with this opinion.
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