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HOLIDAY v. BELLE'S RESTAURANT

January 30, 1976

Marilyn M. HOLIDAY, Plaintiff,
v.
BELLE'S RESTAURANT et al., Defendants



The opinion of the court was delivered by: ROSENBERG

 The plaintiff here is Marilyn M. Holiday, a former employee of the defendants, Belle's Restaurant, BAB, Inc., and Isabelle Laux, as an individual and/or employee of BAB, Inc. The defendants now move to dismiss the amended complaint. This action alleges jurisdiction by virtue of the provisions contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981 and pendant jurisdiction regarding the plaintiff's state claims.

 The plaintiff avers that she was in the employ of the defendants as a restaurant waitress from November 6, 1972 to February 19, 1973; that the defendants' place of business was located in Monroeville Mall, Monroeville, Pennsylvania; that they unlawfully discriminated against the plaintiff with respect to her terms and conditions of work along with hours and earnings; that they caused her constructive discharge based solely upon her race and the belief that she was married to a black man; that she suffered severe emotional and psychological distress and that she suffered defamation of character. The defamation claim was withdrawn by the plaintiff at oral argument upon this motion. The plaintiff claims (1) lost wages, tips and monies suffered as a result of the defendants' alleged discrimination; (2) compensatory damages for the intentional infliction of emotional and psychological distress; (3) punitive damages in order to deter future employment discrimination based on race and for the intentional infliction of emotional and psychological distress; and (4) reasonable costs and attorneys fees.

 The defendants attack the complaint and move for its dismissal contending that (1) as to the defendant Laux, there is no subject matter jurisdiction because no charge of discrimination had been filed against her with the Equal Employment Opportunity Commission (EEOC); (2) as to the defendant BAB, Inc., the plaintiff failed to state a claim upon which relief may be granted under 42 U.S.C. § 1981 because there is no showing of any policy of discrimination on the part of the defendant corporation; (3) as to both defendants, there is no claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. within the complaint because it alleges no racial discrimination against her, but rather on the plaintiff's marriage or on her husband's race; and, (4) as to the state claims, there is neither original jurisdiction to support them nor pendant jurisdiction because they do not arise out of a common nucleus of operative facts and the infliction of emotional distress based on conduct which in itself is not so outrageous to go beyond all bounds of decency or be regarded as atrocious.

 For the purposes of this motion to dismiss, I construe the allegations in complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Curtis v. Everette, 489 F.2d 516, C.A. 3, 1973, cert. den. 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774. A liberal standard has been established for the validity of a complaint and on the whole few falter for failure to set out evidential facts. United States v. Provident, etc., Bank, 259 F. Supp. 373 (D.C.Pa. 1966); American Technical Machine Corp. v. Masterpiece Enterprises, Inc., 235 F. Supp. 917 (D.C.Pa.1964).

 The Supreme Court has held that:

 
"When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well-established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action the allegations of the complaint should be construed favorably to the pleader.
 
'[In] appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957) (footnote omitted)." Scheuer v. Rhodes, supra 416 U.S. at page 236, 94 S. Ct. at page 1686.

 Two of the defendants' contentions find no persuasion in light of Scheuer v. Rhodes, supra, (1) that the plaintiff failed to state a claim under 42 U.S.C. § 1981 for there was no showing of any policy of discrimination by the defendant corporation; and (2) that the state claims are not out of the same common nucleus of fact and the alleged conduct does not go beyond all bounds of decency. On both claims, the plaintiff has complied with Federal Rule of Civil Procedure 8(a) by setting forth "a short and plain statement" on jurisdiction and relief along with a demand for judgment for relief.

 As to the third contention, the defendant Laux argues that this court has no subject matter jurisdiction because the plaintiff had not originally filed a formal charge of discrimination against her with the EEOC.

 The pertinent section, 42 U.S.C. § 2000e-5(f)(1) permits an aggrieved person to enter civil suit "against the respondent named in the charge" after certain procedural prerequisites have been met. The defendant contends that this court has no jurisdiction because she was not directly named in the original charge. In Bowe v. Colgate-Palmolive Company, 416 F.2d 711, C.A. 7, 1969, the court attempted to show the purpose for limiting defendants in subsequent civil suits to those named in the original charge filed with the EEOC. It held that:

 
"It is a jurisdictional prerequisite to the filing of a suit under Title VII that a charge be filed with the EEOC against the party sought to be sued. 42 U.S.C. § 2000e-5(e). This provision serves two important purposes. First, it notifies the charged party of the asserted violation. Secondly, it brings the charged party before the EEOC and permits effectuation of the Act's primary goal, the securing of voluntary compliance with the law." Bowe v. Colgate-Palmolive Company, supra, at page 719.

 The defendant Laux, although not named specifically in the charge, is alleged to be a partial owner and employee of the defendant, BAB, Inc. This is not disputed by the defendants in their motion to dismiss. Within the charge itself, the phrase "primary owner" is used in references to allegations of racial prejudice (Exhibit A, Defendants' Motion to Dismiss).

 It would be difficult to comprehend a situation where the defendant Laux (1) did not have any notice of the asserted violation due to her position with the business, and (2) was not involved in any conciliation to prohibit further suit. Neither are argued as a defense or bar to the complaint in this motion to dismiss in the face of the ...


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