NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 20-3058
NONI BODDIE,
Appellant
v.
CARDONE INDUSTRIES, INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-20-cv-02179)
District Judge: Hon. Gerald A. McHugh
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 23, 2021
Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges.
(Opinion filed: October 15, 2021)
OPINION
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
MATEY, Circuit Judge.
Noni Boddie sued her former employer, Cardone Industries, Inc. alleging
discrimination and negligent infliction of emotional distress. The District Court
determined her complaint failed to state a claim, and dismissed the matter. As that
decision was correct, we will affirm.
I. BACKGROUND
Boddie joined Cardone as Director of Human Resources.1 From the start, things
did not go well. On her first day, she questioned the racial and gender makeup of
Cardone’s upper management. On her second, she learned her office was located not in
Cardone’s headquarters, but a less hospitable satellite facility2 where “the overwhelming
majority of [Cardone’s] minority employees work.” (App. at 22–23.) Day three brought
news that business at Cardone was less robust than billed during her interviews. Vendor
payments lagged, layoffs loomed, hiring was now frozen. In all, it was not the
opportunity she expected. After a half fifth day, she resigned. Boddie filed a complaint
against Cardone asserting claims of discrimination under 42 U.S.C. § 1981 (Count 1) and
negligent infliction of emotional distress (Count 2). Cardone moved to dismiss the
1
We accept the facts alleged by Boddie as true. Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009).
2
A “boarded up, roach and mice infested building,” alleges Boddie in her
complaint. (App. at 26.)
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complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The District
Court granted the motion with prejudice. Boddie timely appealed.3
II. DISCUSSION
Boddie argues that the District Court erred in dismissing her claims. Seeing no
error, we will affirm.
A. The § 1981 Claim
Allegations of employment discrimination under § 1981 are mostly “identical to
the elements of an employment discrimination claim under Title VII.” Brown v. J. Kaz,
Inc., 581 F.3d 175, 181–82 (3d Cir. 2009). So a plaintiff may bring a claim for
discrimination under the pretext theory set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), as Boddie does here. Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir.
2008); see also Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999).
To state a claim under McDonnell Douglas, a plaintiff must first establish a prima
facie case of discrimination by showing: 1) membership in a protected class; 2)
qualification to hold the position; 3) an adverse employment action under 4)
“circumstances that could give rise to an inference of discrimination.” Makky, 541 F.3d at
214 (citing McDonnell Douglas, 411 U.S. at 802). All are necessary to state a claim, so
3
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction under 28 U.S.C. § 1291. See, e.g., Phillips v. Cnty. of Allegheny, 515 F.3d
224, 230 (3d Cir. 2008). We review dismissal under Rule 12(b)(6) de novo, Fowler, 578
F.3d at 206, accepting all well-pleaded factual allegations as true, id. at 210–11. We
“then determine whether the facts alleged . . . are sufficient to show that the plaintiff has a
plausible claim for relief.” Id. at 211 (internal quotation marks omitted). To be
“plausible,” the factual allegations in the complaint must “permit the court to infer more
than the mere possibility of misconduct.” Id. (internal quotation marks omitted).
3
Boddie must “put forth allegations that raise a reasonable expectation that discovery will
reveal evidence of the necessary element[s]” to survive a motion to dismiss. Fowler v.
UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (internal quotation marks omitted.
We agree with the District Court that Boddie did not allege facts sufficient to support
an inference of constructive discharge—her theory of adverse employment action.
“Constructive discharge occurs when an employer knowingly permit[s] conditions . . . so
intolerable that a reasonable person subject to them would resign.” Spencer v. Wal-Mart
Stores, Inc., 469 F.3d 311, 316 n.4 (3d Cir. 2006) (internal quotation marks omitted). The
conditions Boddie alleges fall short of that threshold. To be sure, no one would welcome
sharing an odorous office with a cockroach “twice the size of a full grown cricket.” (App.
at 26–27.) But when Boddie voiced concern, her supervisor advised that a cleaning crew
would arrive later that day and permitted Boddie to leave early. Rather than giving Cardone
a chance to fix the problems, Boddie resigned. While that was her prerogative, “a
reasonable employee will . . . explore . . . alternative avenues thoroughly before coming to
the conclusion that resignation is the only option.” Clowes v. Allegheny Valley Hosp., 991
F.2d 1159, 1161–62 (3d Cir. 1993); see also Mandel v. M&Q Packaging Corp., 706 F.3d
157, 169 (3d Cir. 2013) (“[A]n employee’s subjective perceptions of unfairness or
harshness do not govern a claim of constructive discharge.”). Her allegations, taken as true,
do not support an inference of constructive discharge and the District Court did not err in
dismissing this claim.
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B. Negligent Infliction of Emotional Distress
Pennsylvania recognizes a cause of action for negligent infliction of emotional
distress in limited circumstances involving contractual or fiduciary duty, physical
danger, and observing injury to a close relative. Toney v. Chester Cnty. Hosp., 961
A.2d 192, 197–98 (Pa. Super. Ct. 2008), aff’d, 36 A.3d 83 (Pa. 2011) (per curiam). As the
District Court explained, employer-employee relationships are not covered. See, e.g.,
Denton v. Silver Stream Nursing & Rehab. Ctr., 739 A.2d 571, 578 (Pa. Super. Ct. 1999)
(declining to recognize a claim for negligent infliction of emotional distress premised on
employer-employee relationship). Dismissing this claim was proper.
III. CONCLUSION
For these reasons, we will affirm the District Court’s Order.
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