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April 28, 1994

AMY BRENNAN, Plaintiff,

The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 This matter involves a motion by defendants to dismiss or, in the alternative, for summary judgment to dismiss all counts of plaintiff's complaint. The pertinent facts are as follows. Plaintiff, a New Jersey resident, is a former employee of Penn-Del Directory Corporation ("PDD"), which is located in Bensalem, Pennsylvania. According to the parties, there is some confusion over who was actually plaintiff's employer. *fn1" In her complaint, plaintiff alleges that either PDD or National Telephone Directory Corporation ("NTD") hired her, however, defendants assert that NTD was not plaintiff's employer. NTD is a New Jersey corporation and maintains its principal offices in Somerset, New Jersey. NTD and PDD apparently were both wholly-owned subsidiaries of Bell of Canada Enterprises ("BCE"), which sold PDD and NTD to Bell Atlantic on January 23, 1993. In any event, plaintiff was hired as a sales training coach on April 7, 1986 and she worked in the Bensalem office. She eventually was promoted to district sales manager, and finally, in 1988, took a position as an account executive with PDD. As part of plaintiff's scope of employment, she apparently travelled in both Pennsylvania and New Jersey.

 In July, 1992, while plaintiff was out on maternity leave, she received a notice from defendants that she was being potentially charged with six sales errors. Apparently, according to company policy, every employee charged with four chargeable errors in a single calendar year was subject to termination. Plaintiff discussed these errors with defendants' representatives during a telephone call. She alleges that these representatives admitted that several of the alleged errors, some of which dated back to 1989, came into being because plaintiff took maternity leave, and that the errors were actually not her fault. Despite this, plaintiff was charged with the errors, and was terminated from her employment on July 9, 1992.

 Plaintiff filed an eleven-count complaint with this Court on November 8, 1993. Thereafter, defendants filed the present motion on December 9, 1993. Plaintiff's response was filed on December 22, 1993. Both parties have also filed reply briefs. Accordingly, defendants' motion is now ripe for consideration.


 A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is the appropriate method in which to challenge the legal sufficiency of a claim. See United States v. Marisol, Inc., 725 F. Supp. 833 (M.D. Pa. 1989). In ruling upon a 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). In so reviewing the pleadings and any materials of record, the court must accept as true all of the matters pleaded and all reasonable inferences that can be drawn therefrom, construing them in the light most favorable to the non-moving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir. 1990); Hough/Lowe Assoc., Inc. v. CLX Realty Co., 760 F. Supp. 1141, 1142 (E.D. Pa. 1991). A complaint is properly dismissed if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988).

 Under the Federal Rules of Civil Procedure, where a party attaches materials outside the pleadings to a motion to dismiss, the motion may be converted into a motion for summary judgment. Fed. R. Civ. P. 12(c). Whether or not to treat the motion as a motion for summary judgment by considering the outside materials attached thereto is a matter of discretion for the court. Wiley v. Hughes Capital Corp., 746 F. Supp. 1264, 1275 (D.N.J. 1990); Kelley ex. rel. Michigan NRC v. Arco Indus., 721 F. Supp. 873, 877 (W.D. Mich. 1989). However, courts have held that exercise of the court's discretion is not warranted where there has been little or no discovery conducted by the parties. Brug v. The Enstar Group, Inc., 755 F. Supp. 1247, 1251 (D. Del. 1991); Ospina v. Dept. of Corrections, 749 F. Supp. 572, 574 (D. Del. 1990); Kelley, 721 F. Supp. at 877-78. Considering the motion as a motion for summary judgment would be improper in those situations because the parties may not be able to present enough material to support or oppose a motion for summary judgment since no factual record has yet been developed. Ospina, 749 F. Supp. at 574 (citing Melo v. Hafer, 912 F.2d 628, 634 (3rd Cir. 1990), aff'd, 502 U.S. 21, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991)).

 In the present case, defendants filed this motion approximately one month after the complaint was filed. The parties had not yet conducted any discovery when the motion was filed. Although plaintiff has filed some exhibits along with her motion in opposition to defendants' motion, we feel it would be premature to consider this motion as a motion for summary judgment given the factual nature of some of the issues raised in defendants' motion. As such, we decline to consider the materials attached by both parties, and will consider this motion only as a motion to dismiss.


 A. Count I - Title VII

 Plaintiff's first count alleges that defendants discriminated against her in violation of 42 U.S.C. § 2000e-2 and 42 U.S.C. § 2000e(a) on the basis of her sex and/or pregnancy. Defendants now claim that they are entitled to summary judgment on count one because plaintiff cannot establish a prima facie case of discrimination.

 In order to demonstrate a prima facie case of discrimination, the employee must show that she 1) belonged to a protected class, 2) that she was qualified for the job from which she was discharged, and 3) that others not in the protected class were treated more favorably than plaintiff. Weldon v. Kraft, 896 F.2d 793, 797 (3rd Cir. 1990) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 250-52, 101 S. Ct. 1089, 1092-93, 67 L. Ed. 2d 207 (1981)). However, courts have recognized that this test is not the only way to demonstrate a prima facie case. Lewis v. University of Pittsburgh, 725 F.2d 910, 914 n.4 (3rd Cir. 1983), cert. denied, 469 U.S. 892, 105 S. Ct. 266, 83 L. Ed. 2d 202 (1984).

 In the present case, defendants argue they are entitled to summary judgment because it is undisputed that plaintiff cannot prove any set of facts showing that others not in the protected class were treated more favorably. However, as noted above, this factual determination is premature since we are only considering this motion as a motion to dismiss. In reviewing the complaint, we note that plaintiff has alleged that "no male account executive with the defendants had ever undergone the scrutiny of sales and account records dating back over a span of years while on disability-related leave that the Plaintiff underwent in July of 1992." Complaint, para. 33. She further alleges that no man in the Bensalem office had ever been discharged for errors except for one person who was a member of a protected class (ADEA). Id. at para. 34. She also alleges that the scrutiny which she underwent was unprecedented, in addition to being pretextual. Id. Thus, while defendants argue they are entitled to summary judgment because plaintiff cannot prove a prima facie case of discrimination, we find that by looking at the complaint in a light most favorable to plaintiff, plaintiff has alleged facts which, if true, would show that others not in the protected class were treated more favorably than plaintiff. While we state no opinion as to whether plaintiff will be able to prove this claim, at this point in time, plaintiff's claim survives a motion to dismiss.

 B. Count II - Title VII

 Defendants next claim that count II must be dismissed because it is untimely. Count II is another Title VII claim for pregnancy discrimination and asserts that defendants refused to accommodate plaintiff's request that she not work overtime during her pregnancy on behalf of her doctor's advice. Plaintiff alleges that she was advised that it was not company policy to make accommodations on account of pregnancy, and that she had to comply with all of her job requirements or else take immediate disability. Complaint, para. 49. She further alleges that she was required to return to her doctor and obtain a note stating she was able to perform all of her job functions. Id. at para. 51. Plaintiff alleges that these acts occurred sometime in December 1991.

 Defendants now argue that plaintiff's Title VII claim is untimely. They essentially argue that plaintiff failed to properly file her discrimination claim with the Equal Employment Opportunity Commission ("EEOC") because she did not first file a claim with the Pennsylvania Human Relations Commission ("PHRC"). Defendants claim that in order for plaintiff's claim to be timely, her claim with EEOC could not be filed until sixty days after the claim was filed with PHRC by virtue of 42 U.S.C. § 2000e-5(c), which provides that "no charge may be filed . . . by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." 42 U.S.C. § 2000e-5 (c). Had plaintiff followed this procedure, defendants argue her claim would still be untimely because she would then have failed to file her claim with EEOC within 300 days of the alleged discriminatory event as required by the statute. See 42 U.S.C. § 2000e-5(e).

 Before a federal court has jurisdiction over a Title VII claim, a claim of discrimination must be properly filed with EEOC. Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 878 (3rd Cir. 1990). Under the statute, a complaint must be filed with EEOC within 180 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e); Shaffer v. National Can Corp., 565 F. Supp. 909, 910 (E.D. Pa. 1983). However, the time for filing is extended to 300 days if the discrimination occurs in a "deferral state." Shaffer, 565 F. Supp. at 910. A deferral state, like Pennsylvania, is one that has its own agency to adjudicate employment discrimination claims and grant remedies. Id. The agency with this sort of power in Pennsylvania is the PHRC, which acts as the state equivalent of the EEOC. Id. at 910-11. According to section 706(e) of Title VII, where "the person aggrieved has initially instituted proceedings with a State or local agency," plaintiff then has 300 days in which to file her claim with EEOC. 42 U.S.C. § 2000e-5(e); Shaffer, 565 F. Supp. at 910.

 As defendants point out, section 706(c) of Title VII provides that in a deferral state, a charge with EEOC may not be filed until sixty days after the institution of the claim with the state agency, or until the state agency has terminated its proceedings, whichever is earlier. 42 U.S.C. § 2000e-5(c); Shaffer, 565 F. Supp. at 911. This language has been construed to mean that the filing of a claim with EEOC is precluded until after the expiration of the sixty day period. Shaffer, 565 F. Supp. at 911. Further, by virtue of the Supreme Court's decision in Mohasco v. Silver, 447 U.S. 807, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980), in deferral states, a claim with a state agency must be filed within 240 days of the discriminatory event, so that after the expiration of sixty days, the EEOC claim can still be filed within the 300 day time limitation. Shaffer, 565 F. Supp. at 911 (citing Mohasco, 447 U.S. at 814-15, 100 S. Ct. at 2491-92). This rule, derived from Mohasco, is referred to as the "240 day rule." Shaffer, 565 F. Supp. at 911. The exception to this rule is when the plaintiff files with the state agency after 240 days, but the state agency terminates its proceedings before 300 days. Mohasco, 447 U.S. 807, 814 n.16, 100 S. Ct. 2486, 2491 n. 16, 65 L. Ed. 2d 532 (1980). In such a situation, the EEOC charge is still timely filed if filed before 300 days.

 Although Mohasco's 240 day rule is still viable, the Supreme Court has recognized problems that arise when a party files a complaint with EEOC after 240 days but before 300 days. In E.E.O.C. V. Commercial Office Prod. Co., 486 U.S. 107, 108 S. Ct. 1666, 100 L. Ed. 2d 96 (1988), the Supreme Court held that where a party initially files a complaint with EEOC after the 240 day period, if the state agency terminates its proceedings pursuant to a worksharing agreement between it and EEOC, such agreement providing that the agency agrees to waive the deferral period, then EEOC can immediately proceed with its action. The Court held that "a state agency 'terminates' its proceedings when it declares that it will not proceed, if it does so at all, for a specified interval of time." Commercial Office, 486 U.S. 107, 116, 108 S. Ct. 1666, 1671, 100 L. Ed. 2d 96 (1988).

 In Commercial Office, the complaint was timely filed with EEOC on the 290th day after the alleged discriminatory event, and EEOC then sent a charge transmittal form to the state agency on the 294th day. *fn2" The Court reasoned that pursuant to the worksharing agreement, which stated that the state agency agreed to waive the deferral period but retained jurisdiction to act on the charge after completion of EEOC's processing, EEOC could immediately process the charge without waiting for the requisite 60 day time period to pass.

 In the present case, plaintiff alleges that the discriminatory conduct occurred in December 1991, however, the exact date of discrimination is missing from the complaint. Plaintiff apparently filed a charge with EEOC on October 6, 1992. Defendants note that plaintiff's complaint with PHRC was not filed until January 7, 1993, and therefore plaintiff's claim was not timely because she failed to file with PHRC sixty days before filing with EEOC. However, as Commercial Office and Trevino make clear, such a procedure is unnecessary due to the worksharing agreement between PHRC and EEOC. Thus, assuming plaintiff's charge with EEOC was properly filed within 300 days, which we must assume for purposes of this motion, EEOC could immediately begin processing the charge and need not wait sixty days. However, plaintiff refers to a letter and certification of counsel in her response to the motion and addresses "the significance of inadvertent oversights made by the EEOC pertaining to sending the Complaint to the PHRC." Plaintiff's response, p. 7. As we previously noted, we are not treating this as a motion for summary judgment, and therefore decline to consider any exhibits filed by the parties. We note that at this point, given that we are to construe all reasonable inferences in the light most favorable to plaintiff, we must assume EEOC properly sent the transmittal letter to PHRC within 300 days. As such, this case would fall within Trevino in that the worksharing agreement effected a termination when EEOC identified the charge as a state waiver case in a communication to PHRC. While at some later point at time it might be proven that plaintiff's charge with EEOC was not filed within 300 days, or that EEOC failed to issue a transmittal letter to PHRC within 300 days, for purposes of this motion we assume all charges were timely filed. As such, defendants' argument fails.

 C. Count III - Sex Plus/Pregnancy Discrimination

 Plaintiff has asserted a claim for sex plus pregnancy discrimination in count three of the complaint and alleges that defendants violated Title VII by pursuing a course of action with the intent to eliminate pregnant women and/or working mothers from positions as account executives in their work force. Complaint, para. 61. Defendants now argue that this claim must be dismissed because it is merely duplicative of counts one and two and therefore fails to assert a new cause of action. Plaintiff argues that count three is broader than count one in that it is based on defendants' discriminatory animus toward women in general in the workplace and their attitude toward working mothers and/or pregnant women.

 Upon careful review of count three, we conclude that it must be dismissed because it fails to set forth a separate claim. Plaintiff claims her termination "was the direct result of the Defendants' intention to rid pregnant women and/or working mothers from positions as account executives in their work force." Complaint, para. 61. However, the remaining paragraphs in count three fail to allege any facts, and merely consist of what testimony plaintiff will produce at trial as evidence of defendants' discrimination. For instance, plaintiff states "former female account executive(s) will testify, inter alia, that they were required to sign waivers and/or acknowledgments that if they failed to timely return to expected performance levels after they returned from pregnancy leave, they could be fired." Id. at para. 62. Paragraph 63 states "formal [sic] female supervisor(s) will testify that the Defendants' scheduled sales meetings in the evening hours to interfere with the ...

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