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JULY 2017
PENNSYLVANIA BAR
EXAMINATION
Essay Questions and Examiners’ Analyses
and
Performance Test
Pennsylvania Board of Law Examiners 601 Commonwealth Avenue, Suite 3600
Table of Contents Index ..................................................................................................................................................ii Question No. 1: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines .............. 1 Question No. 2: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............10 Question No. 3: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............20 Question No. 4: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............29 Question No. 5: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............40 Question No. 6: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............49 Performance Test and Grading Guidelines ........................................................................................56
i
Index
Question No. 1
1. Decedents’ Estates: holographic will
2. Decedents’ Estates: elective share
3. Federal Income Tax: cancellation of debt, gift
4. Professional Responsibility: fee sharing, recommending lawyer services, information
about legal services
Question No. 2
1. Torts: wrongful death, survival action
2. Torts: good Samaritan statute
3. Pa. Civil Procedure: demand for jury trial, waiver
4. Evidence: relevance – consumption of alcoholic beverages
Question No. 3
1. Criminal Law: first degree murder
2. Evidence: hearsay – dying declaration
3. Criminal Procedure: search incident to arrest
4. Family Law: alimony
Question No. 4
1. Civil Procedure: motion to dismiss
2. Constitutional Law: First Amendment – symbolic/compulsory speech
3. Constitutional Law: state action
4. Employment Law: Title VII - retaliation
ii
Question No. 5
1. Property: adverse possession, tacking
2. Property: life tenant, vested remainder
3. Contracts: implied-in-fact
4. Contracts: unconscionability
Question No. 6
1. Professional Responsibility: client-lawyer relationship
2. Corporations: recording director dissent
3. U.C.C. Article II: casualty to identified goods
iii
Question No. 1
Sam and Deb are married and reside in B County, Pennsylvania. They have no children.
Deb owns and operates a successful catering business and has accumulated a significant net
worth that affords the couple a comfortable lifestyle. Sam works a few hours a week for the
catering business as a sales associate, but spends most of his time at B County Country Club
playing golf and socializing, often with his friend Fred. Fred, a high-school graduate, is wealthy
by virtue of a large family inheritance. Deb is happy that her hard work can give Sam a life of
relative leisure but makes no secret of her dislike for Fred.
In 2015, Deb and Sam agreed that it was time to have wills prepared. Sam asked Fred if
he knew a good lawyer, and Fred suggested that he call Linda, a local attorney, saying, “Call
Linda, she’s the best lawyer in town, I highly recommend her.” Linda prepared wills for Sam
and Deb, and Deb’s will provided as follows:
I leave the entirety of my estate to my spouse, Sam. If Sam predeceases me, I
leave the entirety of my estate to the Pennsylvania Humane Society. I name Sam
as executor of my estate.
Sam and Deb properly executed the wills on May 5, 2015, and left the originals with Linda for
safekeeping. Sam and Deb paid Linda $2,100 for preparing the wills. Linda then sent $700 to
Fred with a note saying, “Thank you for recommending my services to Sam and Deb, here is
your one-third share of their fee.”
On December 31, 2016, Fred married his girlfriend and threw a large, lavish wedding
reception at his home, which he asked Sam to cater. Sam and Fred agreed on a price of $50,000
for the event and signed a written contract providing for payment within 30 days of the event.
Fred signed the agreement in his individual capacity.
1
Fred made no payments on the catering contract until last month when, after weeks of
Deb pleading with him to collect the debt, Sam asked Fred when he could expect payment. Fred
said, “I can’t pay you without selling off some stocks which I’m not gonna do. How about I pay
you half today and you cancel the rest. I know I owe you $50,000 but this is the best I can do.”
Sam agreed, saying, “Fine, consider it a wedding present.” Sam took a $25,000 check from Fred
and wrote “CANCELLED” in red ink across the top of the original contract.
That same evening, when Sam told Deb about cancelling half of the debt, she became
enraged. Sam told her that Fred was his truest friend and he was happy he could do something
special for the wedding. Deb was not convinced, and she immediately left their home and went
to her office. There, on a piece of company stationary, she wrote the following by hand:
I revoke my prior Will and declare this to be my Last Will. I leave the entirety of
my estate to the Pennsylvania Humane Society. I leave nothing to my husband
Sam. I appoint Linda as executor. Signed, Deb, June 22, 2017.
Deb signed at the bottom and left the document in her outgoing mail in an envelope addressed to
Linda. On her way home, her vehicle was hit by a drunk driver, and Deb was killed instantly.
1. Linda, acting as executor, filed Deb’s handwritten document dated June 22, 2017, with
the Register of Wills. Sam timely filed a petition arguing that the handwritten paper was
not a valid will, and that Deb’s May 5, 2015, will should be admitted to probate. As
between the June 22, 2017, and May 5, 2015, documents, which will control the
distribution of Deb’s estate?
2. Assume for this question only that Deb’s June 22, 2017, handwritten document was
recognized as her valid will. Under the Pennsylvania Probate Estates and Fiduciaries
Code, what action can Sam take, as surviving spouse, to claim against Deb’s estate, and
how would the probate estate be distributed if Sam takes such action?
3. Assume that the catering contract was otherwise valid and enforceable and that it was
properly cancelled by Sam. Fred is a cash basis, calendar year tax filer. How would the
cancellation of the debt be treated by Fred for income tax purposes for the 2017 tax year?
4. Did Linda’s payment of $700 to Fred violate any of the Rules of Professional Conduct?
2
Question No. 1: Examiner’s Analysis
1. The Register of Wills should determine that Deb’s handwritten paper is a valid
holographic will under Pennsylvania law and that it revoked her prior will.
The only formal requirements for a valid will in Pennsylvania are set forth in the Probate
Estates and Fiduciaries Code (PEF Code), which provides, in relevant part, that “[e]very will
shall be in writing and shall be signed by the testator at the end thereof[.]” 20 Pa.C.S. § 2502;
see also 20 Pa.C.S. § 2504.1 (“A will is validly executed if executed in compliance with section
2502[.]”).1
In addition, Pennsylvania courts require a will to establish that the testator intended the
document to be her will, and to dispose of property at the testator’s death:
The form and language of a writing are no more than factors to be considered and
are not determinative of whether the writing is a will, so that this informal
instrument may be a fully effective will if the language suffices to show
testamentary intent. Testamentary intent, however, is an indispensable element
for the finding of a will. The writing must be dispositive in character, and the
disposition must be intended to take effect after the testator's death.
In re Estate of Ritchie, 480 Pa. 57, 64, 389 A.2d 83, 87 (1978) (internal citations omitted); see
also In re Estate of Fick, 418 Pa. 352, 355, 211 A.2d 425, 427 (1965) (“If a testator intends to
make a testamentary gift, it can be done in many ways and in many forms, and the intent, as we
have often said, is the polestar.”).
A will written in the testator’s own handwriting is known as a holographic will. The
Wolters Kluwer Bouvier Law Dictionary Desk Edition (2012) (defining a holographic will as “[a]
will written by hand. . . . [or] a last will and testament written in the handwriting of the testator
and signed by the testator”). Holographic wills have long been recognized as valid by
Pennsylvania courts, applying the principles set forth above. See e.g. In re Estate of Ritchie,480
Pa. at 60, 389 A.2d at 85; In re Estate of Fick, 418 Pa. 353, 211 A.2d at 426; Galli's Estate, 250
Pa. 120, 128, 95 A. 422, 425 (1915).
Deb’s June 22, 2017, handwritten paper is a holographic will, and it is valid under
Pennsylvania law because it meets the formal requirements for a will and demonstrates
testamentary intent. Her document was in writing, and it was signed at the end. Therefore, it met
the formal requirements of the PEF Code section 2502.
Further, Deb demonstrated that it was her intent that the document be her will and that it
make a testamentary disposition. Her language was dispositive in character. She wrote “I
declare this to be my Last Will” and provided for disposition of the “entirety of” her estate. She
then mailed the paper to her attorney, who was holding her prior will. All of these facts show
1 While witness signatures and a notary attestation are necessary to make a will “self-proving,” those formalities are
not required to establish a valid will. See 20 Pa. C.S. § 3132.1.
3
that Deb intended the 2017 paper to be her will. Consequently, Deb’s handwritten paper will
very likely meet the requirements of a valid holographic will.
Deb also explicitly revoked her prior will in her handwritten will. Pennsylvania law
provides, in relevant part, that a will can be revoked by the following methods:
(1) Will or codicil. — By some other will or codicil in writing;
(2) Other writing. — By some other writing declaring the same, executed and
proved in the manner required of wills . . . .
20 Pa.C.S. § 2505. Since the holographic will was valid, it validly revoked the prior will under
section 1 above. It could also be argued that when Deb stated in the holographic will, “I revoke
my prior Will,” the 2015 will was revoked under section 2. As a result, Deb’s revocation of the
2015 will was effective, and, absent other claims that Sam could make, her estate will be
governed by the terms of her 2017 handwritten will.
2. As Deb’s surviving spouse, Sam has the option to claim an elective share. If Sam
elects, he is entitled to one-third of the probate estate, and the Pennsylvania
Humane Society will be the beneficiary of the balance of Deb’s estate.
In Pennsylvania, the elective share of a surviving spouse is determined by statute. See
Bialczak v. Moniak, 373 Pa. Super. 251, 255, 540 A.2d 962, 964 (1988) (stating “the Elective
Share of Surviving Spouse Act . . . created in a surviving spouse the right to an elective share of
one-third of the decedent's augmented estate irrespective of an existing will”). The PEF Code
sets forth certain assets which are subject to election by a spouse and excepts others. 20 Pa.C. S.
§ 2203. With respect to probate assets passing under a will, the statute provides, in relevant part,
as follows:
[W]hen a married person domiciled in this Commonwealth dies, his surviving
spouse has a right to an elective share of one-third of the following property:
(1) Property passing from the decedent by will or intestacy.
20 Pa.C.S. § 2203.
Furthermore, the spouse must actually make the election in order to receive the
elective share; without exercising her or his right of election, the spouse is entitled to only
that portion of the estate that is devised to him or her. 20 Pa.C.S.A. § 2210; In re Harris,
351 Pa. 368, 379, 41 A.2d 715, 720 (1945).
Sam receives nothing under the terms of Deb’s 2017 will and will receive nothing from
her estate unless he timely files an election. If he files a valid election, he will be entitled to
receive one-third of the probate assets passing under her will pursuant to 20 Pa. C.S. § 2203.
4
If an election is made, then the balance of any conveyance diminished by the election
passes to the intended beneficiary:
Effect of election. — [T]he court shall honor any provision in the decedent’s will
or other conveyance concerning interests of those other than his spouse in the
event of an election. Subject to any such provision, the court shall be guided by
the following rules but shall have the power to supplement or to depart from them
if, in its opinion, a different determination of the rights of the spouse and others
would more nearly carry out what would have been the particular decedent’s
intention had he known of the election:
(1) In general. -- Property which otherwise would pass by intestacy shall first be
applied toward satisfaction of the spouse’s elective share. The balance of the
elective share shall then be charged separately against each conveyance subject to
the election, the passing of property by will to be treated as a conveyance for this
purpose . . . .
20 Pa. C.S. § 2211(b); see also in re Babcock’s Estate, 378 Pa. 456, 462, 106 A.2d 435, 437
(1954) (“[T]he share which a widow takes of her husband's estate . . . by virtue of an election
automatically reduces pro tanto the residue available for disposition according to the will.”).
If he properly files an election against Deb’s will, Sam will receive one third of the
probate estate passing under the will. The Pennsylvania Humane Society would then receive the
balance of the estate, or two thirds. While not directly implicated by the call of the question, it
should be noted that if Sam fails to file an election in compliance with PEF Code 2210, he will
receive nothing under her will, and the Pennsylvania Humane Society will receive 100% of the
residuary estate.
3. The cancellation of the debt will not be treated as income to Fred because it was a
gift.
The Internal Revenue Code defines income broadly, and specifically includes cancellation of
debt in its definition:
General definition. -- Except as otherwise provided in this subtitle, gross income
means all income from whatever source derived, including (but not limited to) the
following items:
***
(12) Income from discharge of indebtedness . . . .
26 U.S.C.S. § 61. The regulations provide that “[t]he discharge of indebtedness, in whole or in
part, may result in the realization of income.” 26 C.F.R. 1.61-12(a).
5
In this case, the cancelled debt will be income to Fred unless it falls into an exception.
The Internal Revenue Code provides a number of exceptions to the general rule that forgiven
debt constitutes income:
In general. -- Gross income does not include any amount which (but for this
subsection) would be includible in gross income by reason of the discharge (in
whole or in part) of indebtedness of the taxpayer if—
(A) the discharge occurs in a title 11 [bankruptcy] case,
(B) the discharge occurs when the taxpayer is insolvent,
(C) the indebtedness discharged is qualified farm indebtedness,
(D) in the case of a taxpayer other than a C corporation, the indebtedness
discharged is qualified real property business indebtedness, or
(E) the indebtedness discharged is qualified principal residence
indebtedness . . . .
26 U.S.C.S. § 108.
Fred’s forgiven debt does not fall into any of the exceptions of section 108. Fred is not
insolvent or in bankruptcy proceedings. To the contrary, Fred has a large inheritance and
specifically says that he does not want to liquidate personal holdings to pay Sam. The debt arose
from a contract for catering services; it is not qualified farm indebtedness, qualified principal
residence indebtedness, or qualified real property business indebtedness. Therefore, the
cancellation of indebtedness, on its own, would be included in Fred’s gross income for 2017.
However, “gross income does not include the value of property acquired by gift”.. 26
U.S.C.S. § 102. A gift is motivated by “detached and disinterested generosity[.]” Commissioner
v. Duberstein, 363 U.S. 278, 285 (1960) (internal quotations and citation omitted). A gift from
the creditor to the debtor in the form of cancellation of indebtedness is not taxable. Where the
forgiveness is “gratuitous,” the cancellation of debt may not be income to the debtor. Helvering
v. Am. Dental Co., 318 U.S. 322, 331, 63 S. Ct. 577, 582 (1943). In addition, in order to avoid
taxation, the creditor must intend the forgiveness to be a gift. Commissioner v. Jacobson, 336
U.S. 28, 51-52, (1949).
Under the above facts, it is likely that the cancelled debt would constitute a gift. Sam
cancelled the debt gratuitously, and explicitly stated to both Fred and Deb that his motivation
was to forgive the debt as a wedding gift to Fred, on account of their personal relationship. Sam
intended to make a gift, and, as such, Fred will not have taxable income as a result of the
cancellation of the debt.
6
There are other non-statutory exceptions for disputed debt, none of which are likely to
apply here. The disputed debt doctrine provides that cancelled debt is not taxable unless it
represents a bona fide obligation of the debtor.
The "contested liability" or, as it is occasionally known, "disputed debt" doctrine
rests on the premise that if a taxpayer disputes the original amount of a debt in
good faith, a subsequent settlement of that dispute is "treated as the amount of
debt cognizable for tax purposes."
Preslar v. Commissioner, 167 F.3d 1323, 1327 (10th Cir. 1999) citing Zarin v. Commissioner,
916 F.2d 110, 115 (3d Cir. 1990) 2
If the amount of the debtor’s legal obligation to pay is in dispute, then a discharge of the
obligation may not be taxable. Id. However, this exception is also inapplicable to the present
facts. Fred did not dispute the amount or validity of his obligation. To the contrary, he
specifically acknowledged the amount due and simply indicated an unwillingness to pay.
4. Linda’s payment of $700 to Fred violated rules 5.4 and 7.2 of the Pennsylvania
Rules of Professional Conduct.
The Rules of Professional Conduct prohibit sharing of legal fees with nonlawyers except
in very limited circumstances. Rule 5.4, Professional Independence of a Lawyer, provides in
relevant part as follows:
A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may
provide for the payment of money, over a reasonable period of time after the
lawyer's death, to the lawyer's estate or to one or more specified persons;
(2) a lawyer who undertakes to complete unfinished legal business of a deceased
lawyer may pay to the estate of the deceased lawyer that portion of the total
compensation which fairly represents the services rendered by the deceased
lawyer;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or
retirement plan, even though the plan is based in whole or in part on a profit-
sharing arrangement;
(4) a lawyer or law firm may purchase the practice of another lawyer or law firm
from an estate or other eligible person or entity consistent with Rule 1.17; and
2 The Preslar court also stated that “[t]o implicate the contested liability doctrine, the original amount of the debt
must be unliquidated.”
7
(5) a lawyer may share court-awarded legal fees with a nonprofit organization
that employed, retained or recommended employment of the lawyer in the matter.
Pa. R.P.C. 5.4(a). The comments to Rule 5.4 elaborate on this prohibition:
These limitations are to protect the lawyer’s professional independence of
judgment.
* * *
Where someone other than the client pays the lawyer's fee or salary, or
recommends employment of the lawyer, that arrangement does not modify the
lawyer's obligation to the client. As stated in paragraph (c), such arrangements
should not interfere with the lawyer's professional judgment.
Pa. R.P.C. 5.4 cmts. 1, 2.
In addition to the restriction provided by rule 5.4, Pa. R.P.C. 7.2 (c) provides in relevant
part:
A lawyer shall not give anything of value to a person for recommending the
lawyer’s services, except that a lawyer may pay:
(1) the reasonable cost of advertisements or written communications
permitted by this Rule;
(2) the usual charges of a lawyer referral service or other legal service
organization; and
(3) for a law practice in accordance with Rule 1.17.
The comments to the rule 7.2 elaborate on this prohibition as follows:
[A] lawyer is allowed to pay for advertising permitted by this Rule, but otherwise
is not permitted to pay another person for recommending the lawyer’s services or
for channeling professional work in a manner that violates Rule 7.3. A
communication contains a recommendation if it endorses or vouches for a
lawyer’s credentials, abilities, competence, character, or other professional
qualities. . . .
Pa. R.P.C. 7.2 cmt. 6.
Here, Fred is a non-lawyer who has explicitly recommended Linda’s services.
Linda’s note indicated the payment was intended to be a one-third share of her
fee. Linda is barred from sharing fees with Fred by Rule 5.4, and she is barred
from paying Fred for recommending her services by Rule 7.2. Thus Linda’s
actions violated both of those sections of the Rules of Professional Conduct.
8
Question No. 1: Grading Guidelines
1. Requirements for valid will - holographic will
Comments: Candidates should recognize that handwritten wills are valid under Pennsylvania
law where the requirements for a will are met, and that a valid holographic will can effectively
revoke a prior will.
6 points
2. Elective share of surviving spouse
Comments: Candidates should recognize that a surviving spouse has the right to take a one-third
elective share of the deceased spouse’s probate estate, and that the assets not charged to the
elective share will pass to the intended beneficiaries under the will.
5 points.
3. Federal tax consequences of discharge of indebtedness
Comments: Candidates should recognize that cancellation of debt may lead to taxable income
and that there is an exception where the forgiveness was a gift.
4 points.
4. Professional Responsibility – payment of fees to non-lawyer
Comments: Candidates should recognize that sharing fees with a non-lawyer and paying for
recommendations may violate the Rules of Professional Conduct.
5 points.
9
Question No. 2
Val, a 70-year-old retired grandmother, was driving her motor vehicle in Z County,
Pennsylvania, in March 2017 when she was involved in a head-on collision with an automobile
operated by Cathy. The collision was solely caused by Cathy’s negligence. Before the
emergency medical technician (EMT) personnel arrived, Rose, a licensed registered nurse who
was driving home from work at a local hospital, stopped at the accident scene, which was on her
way. Rose rendered minor assistance to Val for the bloody gash on her forehead, realizing that
Val was losing a lot of blood from that wound. Rose, however, could do no more with the
resources on hand. To keep Val calm, Rose waited with her until the EMT personnel and local
police arrived.
While at the scene of the accident, Cathy came over to speak with Rose. Rose detected
the odor of alcoholic beverages on Cathy’s breath while she and Cathy were speaking. When the
responding police officer arrived at the scene, the officer observed that Cathy demonstrated no
signs of intoxication, he did not have her perform field sobriety tests, and he did not have blood-
alcohol tests conducted. No alcohol-related charges were filed against Cathy by the police.
Val was transported to a local hospital for treatment for head trauma sustained in the
accident. Val’s injuries required her to be confined to a hospital bed for three months. During
that time she was in severe pain. She would become emotionally upset when her husband Ed
and their sole child and adult daughter Beth and Beth’s two minor children visited.
Unfortunately, Val died as a direct result of the accident-related injuries caused by
Cathy’s negligent operation of her motor vehicle after her three-month hospitalization. Val had
no will when she died and the court appointed Ed administrator of her estate.
10
Ed’s standard of living was diminished after Val’s death due to the loss of her monthly
pension and social security income. This income had permitted Val and Ed to live in their house.
This economic loss required Ed to sell his residence and move into a small apartment.
Also, as a result of Val’s injuries and death, Beth was required to hire paid child-care
providers for her two minor children at a cost of hundreds of dollars per month. Prior to the
accident, Val had provided full-time, unpaid child-care for Beth’s children while Beth was
working.
Val incurred significant unreimbursed medical expenses of more than $200,000 during
her hospital confinement. The damages incurred by Val, her estate, and her family are sufficient
to establish a right to a trial by jury in Z County.
1. In addition to a loss of consortium claim, what cause(s) of action should be brought in
a lawsuit to recover damages caused by Cathy’s negligence, who should bring the
cause(s) of action, and what damages should the cause(s) of action seek?
2. Assume that suit is properly brought against Rose for alleged damages caused by the
treatment she provided to Val after the collision. In addition to denying negligence,
what defense should Rose assert at trial to the allegation that Rose’s negligence in
treating Val at the accident scene caused or contributed to Val’s injury and death and
with what likelihood of success?
3. Assume for this question that the action against Cathy proceeds and that all
permissible pleadings have been served. At the pre-trial conference being held 90
days after service of the last permitted pleading and five days before the scheduled
non-jury trial, Cathy’s attorney filed a pre-trial statement with the court with an
endorsement demanding a jury trial. No party, including Cathy, had previously
demanded a jury trial in any of the filed pleadings, and plaintiff’s attorney makes a
motion to strike Cathy’s demand. How would the court likely rule on the motion to
strike Cathy’s demand for a jury trial?
4. Plaintiff’s attorney in the action against Cathy intends to have Rose testify about
smelling alcohol on Cathy’s breath. Cathy’s attorney filed a motion in limine to
prohibit Rose from testifying about detecting the odor of alcoholic beverages on
Cathy’s breath at the scene. How will the court rule on the motion to exclude this
testimony?
11
Question No. 2: Examiner’s Analysis
1. Ed as the Administrator of Val’s estate, should file a survival action seeking
damages related to Val’s pain and suffering during her lifetime and the loss of Val’s
earning power, less personal maintenance, from the time of her death through her
expected lifetime. Ed as Val’s personal representative should also bring a wrongful
death action for the damages that he and Beth would be entitled to recover as a
result of Val’s death.
Two causes of action may be asserted as a result of Cathy’s negligence that caused Val’s
injuries and death. A survival action should be asserted by Ed as personal representative on
behalf of Val’s estate for her injuries and the damages Val suffered as a result of Cathy’s
negligence. See 42 Pa.C.S. § 8302; Tulewicz v. S.E. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d
427 (1992). A wrongful death action should be asserted by Ed as Val’s personal representative
under the Pennsylvania Wrongful Death Statute for the benefit of himself and Beth. See 42
Pa.C.S. § 8301; Pa.R.C.P. No. 2202.
The survival action and wrongful death action may be brought in one action and, as they
involve the same issues except with respect to damages, if brought in separate actions, they
would be consolidated for trial. See Tulewicz, 529 Pa. at 597, 606 A.2d at 431. The damages
that could be claimed in the complaint under the survival count are those sustained by Val in her
lifetime from March 17, 2017, to the date of her death, and the loss of Val’s earning power, less
personal maintenance, from the time of Val’s death through her expected lifespan. Kiser v.
Schulte, 538 Pa. 219 226-27, 648 A.2d 1, 4 (1994); Slaseman v. Myers, 309 Pa. Super 537, 455
A.2d 1213 (1983). The wrongful death damages would be claimed on behalf of Val’s family
members Ed and Beth for their losses, all of which relate to Cathy’s negligence.
These two causes of action are separate and have been delineated by the Pennsylvania
Supreme Court in Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994) as follows:
Wrongful death damages are established for the purpose of compensating the
spouse, children, or parents of a deceased for pecuniary loss they have sustained
as a result of the death of the decedent. The damages recoverable in a wrongful
death action include the present value of the services the deceased would have
rendered to the family, had she lived, as well as funeral and medical expenses.
A survival action, on the other hand, is brought by the administrator of the
decedent’s estate in order to recover the loss to the estate of the decedent resulting
from the tort. The measure of damages awarded in a survival action include the
decedent’s pain and suffering, the loss of gross earning power from the date of
injury until death, and the loss of his earning power - less personal maintenance
expenses, from the time of death through his estimated working life span.
Kiser, 538 Pa. at 226-27, 648 A.2d at 4 (citations omitted).
12
In Kiser, the court distinguished the two different categories of claimants. The surviving
spouse and/or other members of the decedent’s family would be compensated for damages under
the wrongful death statute. Kiser, 538 Pa. at 227, 648 A.2d at 4; 42 Pa.C.S.A. § 8301. The
decedent’s estate would be compensated through the personal representative for the decedent’s
estate under the survival action. Kiser, 538 Pa. at 226, 648 A.2d at 4.
Whether brought separately or consolidated into the same case, the two causes of action
are separate and distinct as discussed by the Court in Frey v. Pennsylvania Elec. Co., 414 Pa.
Super. 535, 607 A.2d 796 (1992) as follows:
An action for survival damages is completely unlike the action for wrongful death
brought by appellant. Under the survival statute, survival damages are essentially
those for pain and suffering between the time of injury and death. The survival
action has its genesis in the decedent’s injury, not his death. In the survival
action, the decedent’s estate sues on behalf of the decedent, upon claims the
decedent could have pursued but for his or her death. The recovery of damages
stems from the rights of action possessed by the decedent at the time of death. . . .
In contrast, wrongful death is not the deceased’s cause of action. An action for
wrongful death may be brought only by specified relatives of the decedent to
recover damages in their own behalf, and not as beneficiaries of the estate.
Wrongful death damages are implemented to compensate the spouse, children, or
parents of the deceased for the pecuniary loss they have sustained by the denial of
future contributions decedent would have made in his or her lifetime. The
damages are also meant to compensate for some administrative, funeral, and
medical expenses. This action is designed only to deal with the economic effect
of the decedent’s death upon these specified family members.
Frey, 414 Pa. Super. at 539, 607 A.2d at 798 (citations omitted). Cited with approval in Taylor
v. Extendicare Health Facilities, Inc., 147 A.3d 490, 494 n.1 (Pa. 2016) cert. denied, 137 S.CT.
1375, 2017 US Lexis 2106 (2016).
As the administrator of Val’s estate, Ed would seek damages under the survival cause of
action for damages which Val could have pursued had she lived. Damages for pain and suffering
would be recoverable because she suffered for three months from the time of injury until death.
Val was in severe pain and was emotionally upset when her relatives visited her in the hospital.
In addition, Ed could claim Val’s medical expenses if not claimed prior to Val’s death and if not
claimed under the wrongful death action. See Tulewicz, 529 Pa. at 597, 606 A.2d at 431. Ed
could also claim the loss of Val’s pension and social security from the time of her death through
her estimated life, less personal expenses. See Slaseman, 309 Pa. Super. at 549, 455 A.2d at
1219. Ed as the administrator could claim on behalf of the estate all of these damages in the
survival action.
13
The claims for lost monetary contributions and services as well as damages for funeral
and medical expenses1 are proper claims under the wrongful death statute and can be asserted by
Ed as Val’s personal representative. See 42 Pa.C.S. § 8301; Pa.R.C.P. No. 2202. Ed is a
beneficiary as defined in the Wrongful Death Statute, and he would be entitled to receive
damages from this cause of action in the proportion he would take as Val’s surviving spouse as if
she had died intestate. Ed has suffered economic loss due to Cathy’s negligent act. Those losses
include his loss of Val’s contribution to the household income, and his consequent inability to
retain the former marital residence. Beth would likely also be entitled to receive her intestate
share of the damages as Val’s daughter because she stood in a family relation to Val and suffered
a pecuniary loss from her mother’s death in the form of the loss of free child care. See In re
Estate of Wolfe, 915 A.2d 1197, 1200 (Pa. Super 2006).
In summary, Ed as the administrator of Val’s estate could bring a lawsuit against Cathy
alleging a survival cause of action on behalf of Val’s estate and a wrongful death action on
behalf of himself and Beth based upon Cathy’s negligence in causing the collision. If Ed fails to
file the action within 6 months of Val’s death, Beth could bring the wrongful death cause of
action. Pa.R.C.P. No. 2202 (b).
2. Rose should raise the good Samaritan defense in the suit that is brought against her
with respect of her treatment of Val as Rose is a licensed registered nurse and would
likely be shielded from liability on these facts.
Rose should raise the good Samaritan defense at trial. By statute, Pennsylvania grants
certain individuals including licensed registered nurses immunity from civil damages when those
individuals render emergency care in good faith at the scene of an emergency. The Pennsylvania
statute providing this immunity provides, in relevant part, as follows:
§ 8331. Medical good Samaritan civil immunity.
(a) General rule.--Any physician or any other practitioner of the healing arts or any registered nurse, licensed by any state, who happens by chance upon the scene of an emergency . . . or who is present when an emergency occurs and who, in good faith, renders emergency care at the scene of the emergency, shall not be liable for any civil damages as a result of any acts or omissions by such physician or practitioner or registered nurse in rendering the emergency care, except any acts or omissions intentionally designed to harm or any grossly negligent acts or omissions which result in harm to the person receiving emergency care.
(b) Definition.--As used in this section "good faith" shall include, but is not
limited to, a reasonable opinion that the immediacy of the situation is such that
the rendering of care should not be postponed until the patient is hospitalized.
42 Pa.C.S. § 8331.
1 It must be noted that duplicate damages are not permitted. Therefore, it Ed as the personal representative for Val’s
estate would not be awarded medical expenses under both the wrongful death action and the survival action. See
Tulewicz, 529 Pa. at 597, 606 A.2d at 431.
14
The facts state that Rose is a licensed registered nurse in Pennsylvania who came upon
the scene of the accident and rendered minor assistance to Val before the EMT personnel arrived.
On these facts Rose is protected by the statute. She is a licensed, registered nurse who happened
on the accident scene by chance as it was on her way home from work. The facts indicate that
Rose acted in good faith to render immediate care to Val by treating the bloody gash on Val’s
forehead that was bleeding profusely. She also waited with Val until the EMT’s arrived in order
to keep Val calm. There are no facts that would support a claim against Rose for intentional
actions to harm Val or that Rose was grossly negligent in her provision of care. Additionally, the
facts state that Rose provided the care she was able to with the resources at hand. Thus, Rose
will likely be successful in asserting the good Samaritan defense to the negligence suit brought
against her.
3. The court will likely deny Cathy’s demand for a jury trial that she made in her
pretrial statement because it was filed more than 20 days after service of the last
permissible pleading and so is untimely.
The Pennsylvania Rules of Civil Procedure set forth the method and time period during
which a demand for a jury trial must be made by a party in which that right exists. Pa.R.C.P. No.
1007.1 provides in relevant part as follows:
Rule 1007.1. Jury Trial. Demand. Waiver.
(a) In any action in which the right to jury trial exists, that right shall be deemed
waived unless a party files and serves a written demand for a jury trial not later
than twenty days after service of the last permissible pleading. The demand shall
be made by endorsement on a pleading or by a separate writing.
The pleadings allowed by the rules are as follows:
(a) . . . [T]he pleadings in an action are limited to
(1) a complaint and an answer thereto,
Note: The term “complaint” includes a complaint to join an additional defendant.
(2) a reply if the answer contains new matter, a counterclaim or a cross-claim,
(3) a counter-reply if the reply to a counterclaim or cross-claim contains new
matter,
(4) a preliminary objection and a response thereto.
Pa.R.C.P. No. 1017 (a).
15
The rule provides that a demand for a jury trial must be filed within 20 days of service of
the last permissible pleading. Cathy first presented her demand for a jury trial by an
endorsement on a pre-trial statement presented to the court at the pre-trial conference which was
more than 20 days after the last permissible pleading. The facts state that the pre-trial conference
was held 90 days after the last permissible pleading was served. In addition, no other party has
requested a jury trial, although the facts provide that the right to a jury trial existed in this action.
Cathy or any party could have endorsed any pleading with the demand for jury trial or requested
it by a separate filing. Cathy, however, failed to request a jury trial in any manner until 90 days
after the last pleading was served as stated in the facts. A pre-trial memorandum is not a
pleading as defined by Pa.R.C.P. No. 1017; thus, it does not affect the timeline for a request for a
jury trial to be made. Further, the demand was made five days before the scheduled non-jury
trial was to commence. While the Pennsylvania Superior Court has indicated that there is some
flexibility in the application of the procedural rules regarding demand for a jury trial, see
Dauphin Deposit Bank & Trust Co. v. Pifer, 556 A.2d 904, 906-07 (Pa. Super. 1989), the
Pennsylvania Supreme Court affirmed the trial court’s order denying a jury trial to a party who
first requested a jury trial on a pre-trial memorandum when discovery was still ongoing. Jones v.
Van Norman, 513 Pa. 572, 583-84, 522 A.2d 503, 509 (1987). The demand for a jury trial was
not only made more than 20 days after the last pleading was served, it was made just five days
before the scheduled non-jury trial. Accordingly, the court would likely grant the plaintiff’s
motion to strike Cathy’s demand for a jury trial under Pa.R.C.P. No 1007.1 (a).
4. The court will likely grant the motion in limine and order that Rose not be permitted
to testify at trial to detecting the odor of alcoholic beverages on Cathy’s breath.
Evidence must be relevant to be admissible. Pa.R.E. 401 provides:
Evidence is relevant if:
(a) It has any tendency to make a fact more or less probable than it would be
without the evidence; and
(b) The fact is of consequence in determining the action.
The plaintiff’s attorney is seeking to introduce Rose’s testimony that she smelled the odor
of alcoholic beverages on Cathy’s breath at the scene of the accident. This evidence is relevant
because imbibing alcoholic beverages makes it more probable that Cathy was negligent in the
operation of her vehicle when she caused the accident.
The Pennsylvania Rules of Evidence provide that relevant evidence is generally
admissible “except as provided by law.” Pa.R.E. 402. The rules further provide that relevant
evidence may be excluded for the following reasons:
The court may exclude relevant evidence if its probative value is outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.
16
Pa.R.E. 403.
With regard to what constitutes “prejudice,” it has been explained:
“Prejudice” . . . does not mean “detrimental to a party’s case” but rather “an
undue tendency to suggest decision on an improper basis.”
Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981).
In Pennsylvania it has long been established that proof of intoxication is relevant when
careless or reckless driving by an actor are at issue. Rohe v. Vinson, 158 A.3d 88, 96-98 (Pa.
Super. 2016). The Pennsylvania Supreme Court, however, has stated:
[T]he mere fact of drinking intoxicating liquor is not admissible, being unfairly
prejudicial, unless it reasonably establishes a degree of intoxication which proves
unfitness to drive.
Fisher v. Dye, 386 Pa. 141, 148, 125 A.2d 472, 476 (1956) (citations omitted). The
Pennsylvania Superior Court stated,
[T]he objective criteria normally required to establish intoxication include
evidence of “staggering, stumbling, aimless wandering, glassy eyes or incoherent
mumbling.”
Locke v. Claypool, 426 Pa. Super. 528, 534, 627 A.2d 801, 804 (1993) (quoting Whyte v.
In short, a court reviewing a motion to dismiss for failure to state a claim upon which
relief can be granted should do each of the following: (1) take note of the elements that must be
pled in order to state a claim; (2) identify allegations in the complaint that are “no more than
conclusions” and, therefore, “not entitled to the assumption of truth;” and (3) assume the truth of
well-pleaded facts and determine whether “they plausibly give rise to an entitlement [of] relief.”
Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3rd Cir. 2016).
2. If Red City files a motion to dismiss, the Court will rule that Mia’s claim against Red
City can proceed because the rule requiring athletes to stand during the National
Anthem violates the First Amendment.
Red City will seek dismissal of the First Amendment claim brought by Mia challenging
the Red City rule requiring participants in Red City recreational sports programs to stand for the
National Anthem. Because the rule seeks to compel expressive conduct in violation of the First
Amendment, the Court will deny Red City’s motion to dismiss Mia’s First Amendment claim.
The First Amendment of the United States Constitution provides, in relevant part, that
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech.” (emphasis added). The First
Amendment is applicable to state and local governments by operation of the Fourteenth
Amendment. See Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785,789
(8th Cir. 2015) (citing Gitlow v. New York, 268 U.S. 652, 666 (1925)).
As explained in Texas v. Johnson, “[t]he First Amendment literally forbids the
abridgment only of ‘speech,’ but [the Court] ha[s] long recognized that its protection does not
end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (citing United
States v. O’Brien, 391 U.S. 367, 376 (1968) and Spence v. Washington, 418 U.S. 405, 409
(1974)); see also, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S.
557, 569 (1995)(“[T]he Constitution looks beyond written or spoken words as mediums of
expression.”).
In reviewing a First Amendment challenge where conduct (as opposed to written or
spoken words) are at issue, the court must first determine whether the conduct constitutes
“symbolic speech” or “expressive conduct.” Johnson, 491 U.S. at 400, 403; United States v.
O’Brien, 391 U.S. 367, 376 (1968). This determination turns on whether “[a]n intent to convey a
particularized message was present, and [whether] the likelihood was great that the message
32
would be understood by those who viewed it.” Johnson, 491 U.S. at 404 (internal quotations and
citation omitted) (alteration in original).
If regulated conduct is held to be expressive, the court then shifts its focus away from the
conduct itself and to the challenged governmental rule or regulation to determine whether the
regulation “is related to the suppression of free expression.” Id. at 403 (citing O’Brien, 391 U.S.
at 377; Spence, 418 U.S. at 414). The answer to this second inquiry will determine what
standard of review the court applies. “If the State’s regulation is not related to expression, then
[a] less stringent standard . . . for regulations of noncommunicative conduct controls.” Id.
(citation omitted). However, if the rule or regulation is related to expression, then a more
demanding standard applies. Id.
While symbolic speech implicates First Amendment protections, a conduct regulation
may still be upheld “if it is within the constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the governmental interest is unrelated to the
suppression of free expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest.” O’Brien, 391 U.S. at
377.
In order to decide whether Mia’s conduct (the refusal to stand for the National Anthem)
constitutes “expressive conduct,” the court must determine whether Mia intended to convey a
particularized message that would be understood by those who viewed it. Johnson, 491 U.S. at
404. Mia is a basketball player for the Hawks. She wrote a letter to the editor about expanding
equal pay legislation, that many of her team’s fans read in the Tribune. In that letter, she
specifically said that if equal pay legislation did not pass, she would no longer salute the
American flag or stand for the National Anthem. Many of the same fans who read Mia’s letter to
the editor were present when she knelt during the National Anthem the night that Congress voted
against equal pay legislation. Mia even told her coach that her reason for not standing was
opposition to the vote and her commitment to fighting for pay equality.
When the court assumes all of the above factual allegations are true, it is likely that the
court will hold Mia has sufficiently alleged that in refusing to stand for the National Anthem she
had the intent to convey her opposition to the Congressional vote on legislation that she had
publicly supported. It is also likely that the court will hold that this message would be
understood by those who viewed Mia’s conduct. Given that Mia’s actions were clearly intended
to convey a message that many of the attendees at the game were likely to understand, the court
will likely hold that her conduct was “sufficiently imbued with elements of communication to
fall within the scope of the First and Fourteenth Amendments.” See Johnson, 391 U.S. at 404
(internal quotations and citation omitted).
Having concluded that Mia’s conduct constitutes expressive conduct that implicates the
First Amendment, the Court will then look at the Red City rule requiring athletes to stand during
the National Anthem, and ask whether the rule relates to the suppression of free expression.
Johnson, 491 U.S. at 403.
33
In this regard, the Supreme Court has a long history of “recognizing the communicative
nature of conduct relating to flags.” Johnson, 491 U.S. at 404 (citations omitted). Similarly, the
Supreme Court has repeatedly recognized that governmental prohibitions and mandates affecting
how citizens relate to the United States flag implicate freedom of expression. See, e.g., West
Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943); Spence v. Washington, 418
U.S. 405 (1974); Johnson, 491 U.S. at 404-05. While the Red City rule requiring athletes to
stand respectfully does not specifically reference the flag, it would be difficult for Red City to
successfully argue that standing during the National Anthem is somehow less communicative
than “conduct relating to flags.”
It is also critical that the Athletic Association Rule at issue involves compulsory action,
wherein a state actor seeks to compel conduct related to a showing of patriotism, i.e., standing
for the National Anthem. Closely related to, and often conflated with, the protection of
expressive conduct is the well-established constitutional principle that “the right of freedom of
thought protected by the First Amendment against state action includes both the right to speak
freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714
(1977) (emphasis added). The Supreme Court has repeatedly held unconstitutional any
governmental action that results in compulsory speech or expressive conduct, such as requiring
public school students to salute the flag, W.V. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943);
compelling a motorist to display a state motto on his or her license plate, Wooley, 430 U.S. at
717; or compelling a private parade organizer to admit a parade participant expressing a message
not of the organizer’s own choosing, Hurley,515 U.S. at 581.
While the Red City rule at issue does not require any utterance, and it does not expressly
reference the flag, the court will likely hold that compelling an athlete to stand for the playing of
the National Anthem is virtually indistinguishable from requiring public school students to salute
the flag. Accordingly, the court will likely hold that the Athletic Association Rule at issue
“relates to freedom of expression.”
Having determined that Mia’s conduct in kneeling for the National Anthem is symbolic
speech and that the Red City Rule at issue relates to freedom of expression, the court must
subject the rule to “the most exacting scrutiny,” or, strict scrutiny. Johnson, 491 U.S. 412. As
such, Red City must show that the Rule at issue is “necessary to serve a compelling state interest
and that it is narrowly drawn to achieve that end.” Boos v. Barry, 485 U.S. 312, 321 (1988).
It is necessary only to look at the interest asserted by Red City to determine that the rule
requiring athletes to stand for the National Anthem fails strict scrutiny. Specifically, the state
purpose is to show “civic unity and community pride.” In this regard, the Supreme Court has
repeatedly rejected similar governmental interests, explaining in one case that the state’s goal of
promoting “appreciation of history, state pride, and individualism” was “not ideologically
neutral” and not sufficiently compelling to justify an abridgment of a motorist’s right not to
display the state motto on his license plate. Maynard, 430 U.S. at 716-17 (“[W]here the State’s
interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot
outweigh an individual’s First Amendment right to avoid becoming the courier for such
message.”). Similarly, the Johnson Court rejected “preserving the flag as a symbol of
nationhood and national unity” as a sufficiently compelling state interest to support a prohibition
34
on desecration of the flag. Johnson, 491 U.S. at 410, 420. In light of these cases, it is almost
certain that the court would hold that the purported interest in “civic unity and community pride”
is not sufficiently compelling to support compelled expressive conduct.
The court will also hold that a rule compelling individuals to stand for the National
Anthem in order to promote civic unity and community pride is not narrowly drawn to achieve
this interest. In Maynard, the Supreme Court struck down a regulation requiring motorists to
display the state motto “Live Free or Die” on their license plates. Part of the Court’s reasoning
was that the state could “legitimately pursue [its purpose of promoting appreciation of history,
state, pride, and individualism] in any number of ways” without burdening individuals’ First
Amendment rights. Maynard, 430 U.S. at 717. Arguably in this case, as in Maynard, Red City
could legitimately advance unity and community pride in a number of ways that do not burden
Mia’s First Amendment rights.
Taking all of the facts set forth above (and pled in Mia’s complaint) as true, the court will
most likely hold that Mia has set forth ample facts to support a claim that the rule mandating that
Red City athletes stand respectfully during the National Anthem violates the First Amendment.
Accordingly, the court will deny Red City’s motion to dismiss.
3. The state-action doctrine is the constitutional basis for XYZ’s position that the First
Amendment does not apply to XYZ’s actions, and the court will dismiss Mia’s First
Amendment claim against XYZ.
Here, XYZ’s motion to dismiss Mia’s First Amendment claim argues that the First
Amendment is inapplicable to XYZ’s actions. The constitutional basis for this argument is the
state-action doctrine and the court will grant XYZ’s motion to dismiss the First Amendment
claim against XYZ based on this doctrine.
The state-action doctrine requires that, with limited exceptions, only a governmental
actor, not private individuals or entities, may violate an individual’s rights under the United
States Constitution. Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S.
557, 566 (1995) (“[T]he guarantees of free speech and equal protection guard only against
encroachment by the government and erect no shield against merely private conduct.” (internal
quotations and citations omitted)).
Thus, in order to establish a violation of the First Amendment, a party must show action
by a state actor:
[T]he constitutional guarantee of free speech is a guarantee only against
abridgment by government, federal or state. Thus, while statutory or common
law may in some situations extend protection or provide redress against a private
corporation or person who seeks to abridge the free expression of others, no such
protection or redress is provided by the Constitution itself.
Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (internal citations omitted).
35
In this case, it is certainly possible to infer that Mia was removed from the schedule
based on Mia’s exercise of her right to freedom of speech or expression when she wrote the letter
to the editor and/or when she knelt during the National Anthem. Joe told Mia that he thought her
letter to the editor was ridiculous because women belong in the kitchen. Joe also told Mia that
he was offended by her “antics” when she knelt for the National Anthem. 2
However, Mia’s complaint specifically alleges that XYZ is a “family-owned business.”
Thus, XYZ is a private actor, not a state actor. There is simply no factual allegation from which
a reasonable inference could be drawn by the court that the state action requirement has been
satisfied. Accordingly, Mia cannot state a claim against XYZ for violation of her First
Amendment rights, and the court will grant XYZ’s motion to dismiss Mia’s First Amendment
claim against XYZ.
4. The court will likely deny XYZ’s motion to dismiss Liz’s Title VII retaliation claim
because Liz can state a prima facie case of retaliation.
Title VII contains an anti-retaliation provision that makes it unlawful for employers to
“discriminate against” an employee “because he [or she] has opposed” a practice that Title VII
forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation,
proceeding, or hearing . . . .” 42 U.S.C. § 2000e–3(a). To establish a prima facie case of
retaliation under Title VII, a plaintiff must demonstrate that “(1) [he or she] engaged in a
protected employee activity; (2) the employer took an adverse employment action after or
contemporaneous with the protected . . . activity; and (3) a causal [connection] exists between
the . . . protected activity and the . . . adverse action.” Abramson v. William Paterson Coll., 260
F. 3d 265, 286 (3rd Cir. 2001) (emphasis added). Some courts also expressly include within the
elements of a prima facie case that “[the] exercise of protected rights was known to defendant.”
Garner v. Cuyahoga Cty. Juv. Ct., 554 F.3d 624, 639 (6th Cir. 2009); see also Tepperwien v.
Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 n. 6 (2d Cir.2011); Hicks v. Baines, 593
F.3d 159, 164 (2d Cir.2010).
The facts alleged in Liz’s complaint likely establish the first element of a prima face case
of retaliation, i.e., that Liz engaged in a protected employee activity. Liz utilized XYZ’s internal
reporting procedures to “oppose’” Joe’s “barefoot and pregnant” statement and his “history of
sexist jokes and comments.” 42 USC § 2000e-3(a). A court would likely find that these
allegations are sufficient to establish the first element of a prima facie case of retaliation.3
2 The call of this question asks only the constitutional basis for XYZ to assert that the First Amendment does not
apply to its actions. A discussion of whether Mia’s actions in kneeling during the National Anthem constitute
expressive conduct protected by the First Amendment is found supra. 3 The Supreme Court has applied an objective reasonableness standard to hold that a plaintiff had not engaged in
protected opposition activity when reporting one passing sexual comment because there could be no reasonable
belief that there was a Title VII violation. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001). Breeden,
however, was decided on a motion for summary judgment, which has a different standard than a motion to dismiss
where the court must accept all well-pleaded facts in the complaint as true and draw all inferences in the light most
favorable to the plaintiff. United States ex rel. Oberg v. Pennsylvania Higher Education Assistance Agency, 745
F.3d 131, 136 (4th Cir. 2014). Here, Liz’s complaint alleges that she complained to XYZ not only about Joe’s single
“barefoot and pregnant” comment, but also about a “history of sexist jokes and comments.” Liz also alleged that
Joe’s conduct was such that he received a suspension and harassment training as a result. Accepting the veracity of
36
Moreover, given that Liz’s opposition activity was through formal channels and Joe was
suspended as a result, there is no question about whether XYZ was aware of Liz’s protected
activity. Joe also indicated his knowledge of Liz’s opposition when he said he had been out of
work “thanks to you girls.”
Turning to the second element of a prima face case of retaliation under Title VII, that the
employer took an adverse employment action, the Supreme Court has explained:
The anti-retaliation provision protects an individual not from all retaliation, but
from retaliation that produces an injury or harm. . . . [A] plaintiff must show that a
reasonable employee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations
and citation omitted).
Here, Liz’s complaint alleges that she engaged in the protected activity of opposing
prohibited conduct by filing a complaint with XYZ. Liz also alleges that the adverse
employment action that took place following Liz’s protected activity was Joe removing Liz from
the schedule for 30 days. Liz relied upon income from working at XYZ to pay her rent, and even
told Joe this. Being unable to meet one’s basic financial obligations would certainly “dissuade a
reasonable worker from making or supporting a charge of discrimination.” White, 548 U.S. at
72-73 (holding that a 37 day unpaid suspension was an adverse action, even where back pay was
subsequently awarded because “[m]any reasonable employees would find a month without a
paycheck to be a serious hardship”). Therefore, the facts alleged in Liz’s complaint will satisfy
the second element of a prima facie case of retaliation.4
Finally, there are sufficient facts alleged for Liz to establish the third element of a claim
for retaliation – a causal connection between the protected activity and the adverse action. The
plaintiff’s ultimate burden in establishing a claim for retaliation under Title VII is to prove that
retaliatory animus was the “but-for” cause of the adverse employment action. This burden is “a
higher causal burden than a plaintiff asserting a claim of direct status-based discrimination under
Title VII.” Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257-58 (3rd Cir. 2017).
However, at the prima facie stage of litigation, the plaintiff’s causal burden is “not onerous” and
these factual allegations and drawing all inferences in Liz’s favor, it is likely that the court will hold that she
properly pled the first element of a prima facie case of discrimination. 4Removing Liz from the schedule after she filed her complaint is the retaliatory adverse action at issue. As in White,
supra, this action resulted in Liz not getting paid for a month, causing her financial harm. Had the retaliation taken
the form of hostile and harassing treatment, some courts would require Liz to “satisfy the same standard used to
evaluate conventional hostile work environment claims; that is, incidents of harassment following a complaint were
sufficiently continuous and severe to have altered conditions of employment.” Cajamarca v. Regal Entertainment
Grp., 863 F. Supp.2d 237, 254 (E.D. N.Y. 2012) (emphasis added). Others, however, have raised the question of
whether the decision in White altered the standard for retaliatory harassment claims. Bergbauer v. Mabus, 934
F.Supp.2d 55, 81-82 (D.D.C. 2013) (recognizing split in the circuit courts regarding standards to be applied to
retaliatory hostile work environment claims in light of White). Here, it is not necessary to address this split because
the retaliation at issue involves “ordinary discrimination,” as it did in White.
37
is “easily met.” See e.g., Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 365 (3d Cir. 2008)
(citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
In establishing causation, a plaintiff may rely upon various types of evidence to show a
causal link between protected activity and the adverse employment action. Carvalho-Grevious,
851 F.3d at 260 (citations omitted). Such evidence may include, but is certainly not limited to,
inconsistencies in an employer’s explanation for taking an adverse action; a pattern of
antagonism; or a temporal proximity between the protected activity and the adverse action that is
“unusually suggestive of retaliatory motive.” Id. (citations and quotations omitted).5
As the Supreme Court has recognized, “[t]he cases that accept mere temporal proximity
between an employer’s knowledge of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal
proximity must be ‘very close.’” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)
(citing O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001); Richmond v.