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FOUST v. FMC CORP.

April 18, 1997

CYNTHIA D. FOUST
v.
FMC CORPORATION



The opinion of the court was delivered by: PADOVA

 Padova, J.

 April 18th, 1997

 Plaintiff, an African-American woman, brought this action against Defendant, her employer, claiming that she was discriminated against on the basis of race. Defendant has moved to dismiss the Complaint on three grounds: (1) failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6); (2) insufficiency of process pursuant to Rule 12(b)(5); and (3) lack of jurisdiction for failure to exhaust administrative procedures pursuant to Rule 12(b)(1). For the reasons that follow, I will deny the Motion.

 I. BACKGROUND

 The Complaint alleges the following: Plaintiff was initially employed by Defendant from October 1988 until August 1994, when she was laid off. At that time, Plaintiff was an Administrative Secretary with a rank of GL-7. In September 1994, Plaintiff was hired by Defendant through a temporary employment agency to fill a GL-7 position. In November 1994, Defendant announced an opening for an Administrative Secretary GL-7, and Plaintiff applied for it. Plaintiff claims that the Caucasian candidate whom Defendant hired for the position was less qualified than she was, and on April 5, 1995, she filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC"). Thereafter, Defendant offered Plaintiff a permanent position as an Administrative Secretary GL-7, which she accepted on September 11, 1995. In January 1996, some four months after Plaintiff was rehired, Defendant notified Plaintiff that her position would be eliminated in January 1997. Plaintiff claims that Defendant offered her the position in September 1995, knowing that it would be eliminated, to cause her to withdraw her Charge and to minimize damages. Plaintiff also claims that Defendant offered her the soon-to-be eliminated position in retaliation for her EEOC protected activity. Plaintiff continued with her EEOC action and on September 27, 1996, the EEOC issued her a determination and "Right to Sue" letter.

 II. LEGAL STANDARD

 A. Motion to Dismiss

 The purpose of a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of the complaint. Winterberg v. CNA Ins. Co., 868 F. Supp. 713, 718 (E.D. Pa. 1994), aff'd, 72 F.3d 318 (3d Cir. 1995). A claim may be dismissed under Rule 12(b)(6) only if the plaintiff can prove no set of facts in support of the claim that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In considering such a motion, a court must accept all of the facts alleged in the complaint as true and must liberally construe the complaint in the light most favorable to the plaintiff. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). The question is not whether the plaintiff will ultimately prevail, but whether she is entitled to present evidence in support of her claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974).

 In deciding a motion to dismiss, the district court generally considers only the allegations of the complaint, exhibits attached to the complaint, and matters of public record. If other documents are presented, the court converts the motion to one for summary judgment. Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042, 114 S. Ct. 687, 126 L. Ed. 2d 655 (1994). There are, however, exceptions to this general rule. The United States Court of Appeals for the Third Circuit has held that a district court may consider "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Id. The court reasoned that if the district court could not consider such a document, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document on which it relied. Id. In allowing the document to be considered, the Third Circuit reasoned:

 
Our decision will not undermine the rationale underlying Rule 12(b)(6)'s requirement that a motion to dismiss be converted to a summary judgment motion if a court considers matters outside the pleadings. The reason that a court must convert a motion to dismiss to a summary judgment motion if it considers extraneous evidence submitted by the defense is to afford the plaintiff an opportunity to respond. When a complaint relies on a document, however, the plaintiff obviously is on notice of the contents of the document, and the need for a chance to refute evidence is greatly diminished.

 Id. (citations omitted). In a similar vein, the Third Circuit stated earlier:

 
A finding that Plaintiff has had notice of documents used by defendant in a 12(b)(6) motion is significant since, as noted earlier, the problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason -requiring notice so that the party against whom the motion to dismiss is made may respond -- that Rule 12(b)(6) motions are ordinarily converted into summary judgment motions. Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.

 Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 48 (3d Cir. 1991, cert. denied, 503 U.S. 960, 112 S. Ct. 1561, 118 L. Ed. 2d 208 (1992).

 In the instant case, Defendant attached to its Motion to Dismiss a copy of the Right to Sue letter the EEOC had issued to Plaintiff. Plaintiff, in turn, attached to her Response her own affidavit as to her change of residence, a postmarked EEOC envelope showing the date on which the EEOC letter was mailed to her, and an exchange of letters between her counsel and the EEOC investigator assigned to her case during the pendency of the investigation. This is all information of which Plaintiff had actual notice; indeed, it was information in Plaintiff's possession. In addition, both Plaintiff and Defendant rely on the documents to prove their respective points. Neither party suggests that it needs additional discovery on the issues addressed by the Motion to Dismiss. Neither party challenges the authenticity of the documents or argues that it is disadvantaged by the Court's considering the documents attached to the Motion and Response. Under these circumstances, "the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated." Cortec, 949 F.2d at 48. I will therefore continue to treat Defendant's Motion as one to dismiss, despite the additional documents that the parties introduce in the Motion and Response.

 III. DISCUSSION

 
A. Failure to state a claim upon which ...

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