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KING v. M.R. BROWN

September 22, 1995

ILENE K. KING V. M.R. BROWN, INC. t/a RUTH'S CHRIS STEAK HOUSE


The opinion of the court was delivered by: NEWCOMER

 Presently before this Court are defendant's Motion to Dismiss Counts I, III, and IV of the Second Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(1) or 12(b)(6) and to Strike Certain Paragraphs of that Complaint, and plaintiff's response thereto. For the reasons that follow, this Court shall grant the motion in part and deny the motion in part.

 I. Background

 Plaintiff Ilene King filed this sexual harassment action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000(e), and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, against her former employer, Ruth's Chris Steak House ("Ruth's Chris"). Plaintiff also asserts a state law claim for breach of contract against Ruth's Chris.

 In her Second Amended Complaint, plaintiff makes the following allegations. Plaintiff was employed as a waitress at defendant Ruth's Chris Steak House, an upscale restaurant located in Philadelphia, Pennsylvania, from September 1989 until Ruth's Chris dismissed her in June 1994. From March 1994 until her termination, plaintiff was subjected to unwelcome sexual overtures and harassment by Karen Leader, a female co-worker. Ms. Leader, who is a lesbian, harassed plaintiff by engaging in acts of "undesired and nonconsensual physical touching as well as verbal abuse and intimidation." Second Am. Compl. P 10. Plaintiff then notified defendant's owner of the alleged harassment. The owner assigned the investigation of this matter to the restaurant's general manager, Curt Gaither.

 The events that transpired subsequently are not entirely clear from the Second Amended Complaint. It appears that Mr. Gaither called a meeting between plaintiff and Ms. Leader that resulted in management issuing written warnings to both Ms. Leader and plaintiff that sexual harassment violates company policy and would not be tolerated. It is unclear why plaintiff received a warning since there is nothing in the record to indicate that she committed acts of sexual harassment, only that she was a victim of it. After receiving the written warning, plaintiff informed Mr. Gaither that she believed that the company had issued a warning to her as retribution against her for raising her claim of sexual harassment. Plaintiff also telephoned Charles DiLapi, the Vice President for Human Resources of Ruth's Chris' parent corporation, to notify him of the harassment.

 On May 31, 1994, while suspended from work, plaintiff filed a Charge of Discrimination with the EEOC and the Pennsylvania Human Rights Commission ("PHRC"). Compl. Ex. D. The Charge was limited to a description of Ms. Leader's harassment of plaintiff and a claim for retaliatory suspension. Subsequently, on June 8, 1994, Mr. Gaither provided plaintiff with a written notice of termination, which stated that the termination was "a result of warning and suspension of [sic] confrontation with Karen Leader." Compl. Ex. E. On June 17, 1994, plaintiff filed a second Charge of Discrimination with the EEOC and PHRC alleging retaliatory discharge.

 Plaintiff then filed the present action in this Court. In Count I, plaintiff alleges discriminatory discharge in violation of Title VII. In Count II, plaintiff alleges retaliatory discharge in violation of Title VII. In Count III, Plaintiff alleges discriminatory employment practices pursuant to the PHRA. In Count IV, plaintiff seeks damages for breach of contract. Defendant now moves to dismiss Counts I, III and IV of plaintiff's Second Amended Complaint and to strike paragraphs 12 (e) and (f) of that complaint.

 II. Legal Standard for Motion to Dismiss

 Pursuant to Fed. R. Civ. P. 12(b)(6), a court should dismiss a claim for failure to state a cause of action only if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). Because granting such a motion results in a determination on the merits at such an early stage of a plaintiff's case, the district court "must take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 664-65 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir. 1985)), cert. denied, 489 U.S. 1065 (1989).

 III. Discussion

 A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

 Defendant moves this Court to dismiss portions of plaintiff's sexual harassment claim for lack of subject matter jurisdiction. This Court will grant defendant's request in part and deny the request in part.

 Under Title VII, a plaintiff must file charges with the EEOC and receive a right to sue letter before filing a complaint in federal court. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Ostapowicz v. Johnson Bronze Company, 541 F.2d 394, 398 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 50 L. Ed. 2d 753, 97 S. Ct. 741 (1977). The purpose of this requirement is to "correct discrimination through administrative conciliation and persuasion if possible, rather than by formal court action." Ostopowicz, 541 F.2d at 398. In order to ensure that the EEOC has the first opportunity to address the allegations of discrimination, a district court may adjudicate only those claims that fall within "the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 398-399 (quoting Gamble v. Birmingham Southern R.R. Co., 514 F.2d 678 (5th Cir. 1975)).

 In this case, the Second Amended Complaint includes various allegations of sexual harassment that occurred during plaintiff's employment at Ruth's Chris. As described infra, plaintiff alleges in paragraph 10 that she was the victim of sexual harassment by Karen Leader that created a hostile work environment at Ruth's Chris. Plaintiff properly raised this claim with the EEOC and PHRA. As such, this Court may exercise subject matter jurisdiction over this claim.

 Not previously raised with the EEOC and PHRA, however, are plaintiff's remaining allegations of harassment, which are contained in paragraphs 11-16 of the Second Amended Complaint. These allegations, which are described in greater detail below, allege harassment by individuals other than Ms. Leader as well as different forms of harassment, including instances of quid pro quo sexual harassment. *fn1" Defendant maintains that this Court may not adjudicate these claims because they were not included in plaintiff's EEOC Charge of Discrimination. Because this Court agrees in part, it will dismiss those claims raised in paragraphs 14-16 for lack of subject matter jurisdiction. The claims raised in paragraphs 11-13, however, are valid. A summary of the specific averments follows.

 In paragraphs 11 and 12, plaintiff alleges that employees other than Ms. Leader created a hostile work environment by making lewd comments about the anatomy of female customers, hanging a sexually suggestive poster in the restaurant's kitchen, and permitting the ...


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