United States District Court, Eastern District of Pennsylvania
July 29, 1999
JON SCHOUTEN, PLAINTIFF,
CSX TRANSPORTATION, INC., DEFENDANT.
The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.
Presently before the Court is the partial motion to dismiss of
defendant CSX Transportation, Inc. ("CSX"), pursuant to Fed.
R.Civ.P. 12(b)(6), and the response of plaintiff Jon Schouten
("Schouten") thereto.*fn1 Specifically, CSX moves to dismiss the
claims of Schouten alleging discrimination on the basis of
national origin and in unlawful retaliation under Title VII of
the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania
Human Relations Act ("PHRA"), as well as the claims of Schouten
alleging discrimination on the basis of national origin under the
Civil Rights Act of 1866. CSX also moves to strike the claims of
Schouten for a trial by jury and for punitive damages under the
PHRA. Based on the following analysis, the motion of CSX will be
granted in part and denied in part.
Schouten, an individual of Antiguan ancestry, enrolled in a
Railroad Trainman/Conductor Training Program at the Community
College of Philadelphia during 1998. Of the fifteen individuals
enrolled in the program, he was the only one who was not
Caucasian. The plaintiff claims that despite having successfully
completed the course, he was the only one of the fifteen who was
not offered employment with CSX. (Complaint of Plaintiff Jon
Schouten ("Complaint") ¶ 25). Specifically, he claims that he was
not hired because of his race and his accent. (Complaint ¶ 30,
54). Although he did eventually receive a letter from Eileen
Ward, Director of Staffing/Solutions for CSX, purporting to offer
him a position, subject to several conditions, he was unable to
secure final confirmation of this offer despite repeated efforts
to do so, with the end result being that no such offer was ever
Subsequently, Schouten filed a charge with the EEOC which was
cross-filed with the Pennsylvania Human Relations Commission
("PHRC"). The "particulars" of the charge contain two relevant
statements. First, Schouten stated: "[o]n April 10, 1998, Don
[Parkers] and Sam indicated that I had an accent and would not be
a good conductor."*fn3 (EEOC Charge at 1). Second, he stated
that: "I believe that I have been discriminated against because
of my race (black) in violation of Title VII of the civil Rights
Act of 1964, as amended, in that I was the only one [of the
fifteen students enrolled in the program] not offered employment
during the five weeks of training that started on March 9, 1998."
(EEOC Charge at 2). In addition, Schouten checked the box
indicating his allegations concerned a charge of discrimination
based upon race. The boxes indicating allegations of
discrimination based upon national origin and of retaliatory
conduct, however, were unmarked.
Upon receiving a right to sue letter, Schouten filed this suit
under Title VII and the PHRA, alleging discrimination based upon
his race and national origin and retaliatory conduct, and also
under 42 U.S.C. § 1981 ("the Civil Rights Act of 1866"), alleging
discrimination based upon his race and national origin. Schouten
also made claims under the PHRA for a trial by jury and for
II. Legal Standard for a Motion to Dismiss
Rule 12(b) of the Federal Rules of Civil Procedure provides
that "the following defenses may at the option of the pleader be
made by motion: (6) failure to state a claim upon which relief
can be granted." In deciding a motion to dismiss under Rule
12(b)(6), a court must take all well pleaded facts in the
complaint as true and view them in the light most favorable to
the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89
S.Ct. 1843, 23 L.Ed.2d 404 (1969). Because the Federal Rules of
Civil Procedure require only notice pleading, they should contain
merely "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R.Civ.P. 8(a).
CSX argues that the claims of Schouten under Title VII and the
PHRA alleging discrimination based upon national origin and
retaliatory conduct should be dismissed because his charge to the
EEOC and PHRC did not contain such allegations. Specifically, CSX
asserts that not only were the boxes corresponding to such
allegations unmarked, but that notice of such claims was not
provided by the "particulars" of the charge. Thus, it asserts
that the claim was not fairly encompassed within either the EEOC
charge or the notice of right to sue which stemmed from that
document. CSX also argues that discrimination upon the basis of
national origin is not actionable under the Civil Rights Act of
1866, and, therefore, that claims under that statute sounding in
such should be dismissed. Finally, CSX argues that Schouten is
entitled to neither trial by jury nor punitive damages under the
A. Failure to File National Origin Discrimination or Retaliation
Charges with the EEOC or with the PHRA
Preliminarily, it is important to note that there are several
jurisdictional prerequisites to the valid assertion of a claim
under Title VII. Foremost among these are the requirements that
Title VII litigants file charges with the EEOC and receive a
"right to sue" letter from that body before filing suit. See
Hughey v. N. Philadelphia Health Sys., No. CIV.A.96-4695, 1996
WL 547396, at *1 (E.D.Pa. Sept.25, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973) and Ostapowicz v. Johnson Bronze Co.,
541 F.2d 394, 398 (3d Cir. 1976)). The rationale for this was
delineated by the Ostapowicz Court: "[These steps are] designed
to correct discrimination through administrative conciliation and
persuasion if possible, rather than by formal court action. While
preliminary requirements for a Title VII action are to be
interpreted in a nontechnical fashion, the aggrieved person is
not permitted to bypass the administrative process." 541 F.2d at
398 (internal citations omitted).
These administrative exhaustion requirement, however, is
tempered by a fairly liberal construction given to EEOC charges.
See Polay v. West Co., 629 F. Supp. 899, 901 (E.D.Pa. 1986).
Indeed, the failure to check a particular box on an EEOC charge,
such as is the case here, is not necessarily indicative of a
failure to exhaust the mandatory administrative remedies. See
Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190, 196 (E.D.Pa.
1994) ("`[W]e decline to hold that the failure to place a check
mark in the correct box is a fatal error. In the context of Title
VII, no one . . . should be boxed out.'") (quoting Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970)).
Rather if the allegations made in the complaint filed in this
Court could be "reasonably expected to grow out of" those
contained made in the EEOC charge, the pleading of the plaintiff
will withstand a motion to dismiss, as the administrative
remedies available to the plaintiff will have been exhausted.
Page v. ECC Management Servs., No. CIV.A.97-2654, 1997 WL
762789, at *3 (E.D.Pa. Dec.8, 1997) (quoting Ostapowicz, 541
F.2d at 399). In such a case, the Court may reasonably expect an
on the part of the defendant that such allegations are likely.
In the EEOC charge, Schouten expressly stated: "[o]n April 10,
1998, Don [Parkers] and Sam indicated that I had an accent and
would not be a good conductor." (EEOC Charge at 1). Though not an
explicit allegation of discrimination based on national origin
itself, this statement should have led CSX to believe that such a
claim was possible. In other words, a claim of discrimination on
the basis of national origin could be reasonably expected to grow
out of the allegations in the EEOC charge.
Moreover, it seems at least possible, if not probable, that
Schouten, who is unschooled in the technical distinction between
racial and national origin discrimination, assumed that the
actions on the part of CSX constituted the former as opposed to
the latter. In such situations, "not to allow the lawsuit would .
. . penalize . . . a lay person for not attaching the correct
conclusion to [his] claim and thus would . . . constitute . . .
an improperly narrow construction of Title VII." Rodriguez v.
Am. Parts Sys., No. CIV.A.86-3904, 1986 WL 13034, at *2 (E.D.Pa.
Nov.19, 1986). Accordingly, the motion of CSX to dismiss the
claims of Schouten under Title VII which are based upon alleged
national origin discrimination will be denied.
In contrast, the effort of Schouten to proceed on his claim of
retaliatory conduct must fail. The EEOC charge of Schouten
contains no allegations which could remotely be construed as
claims of retaliatory conduct on the part of CSX. Therefore,
Schouten has not satisfied the exhaustion of administrative
remedies requirement of Title VII. Accordingly, to the extent
that Schouten's amended complaint alleges charges of retaliation
in violation of Title VII, those claims must be dismissed. See
Sosa v. Floyd, No. CIV.A.98-6602, 1999 WL 240070, at *3 (E.D.Pa.
Apr.23, 1999); see also Fosburg v. Lehigh Univ., No.
CIV.A.98-864, 1999 WL 124458, at *6 (E.D.Pa. Mar.4, 1999).
These results are identical to those under the PHRA. The PHRA
also requires the exhaustion of administrative remedies before
suit may be filed in court. Churchill v. Star Enters.,
183 F.3d 184, 190 (3d Cir. 1999). Moreover, the analysis of whether a
plaintiff has failed to exhaust those remedies under the PHRA is
identical to that of whether he or she has done so under Title
VII. Page, 1997 WL 762789, at *4. Just as in Page, the claim
of discrimination on the basis of national origin made by
Schouten in this case "could reasonably be found to `grow out of'
Plaintiff's prior PHRA [charge]."*fn4 Id. However, the charge
is silent as to allegations of retaliation. Therefore, unlike his
claim of national origin discrimination, Schouten has failed to
exhaust his administrative remedies under the PHRA insofar as he
claims retaliatory conduct in his complaint, and that claim will
consequently be dismissed.
B. The Actionability of Discrimination on the Basis of National
Origin under the Civil Rights Act of 1866
The Civil Rights Act of 1866, 42 U.S.C. § 1981, prohibits
discrimination on the grounds of race.*fn5 See, e.g., St.
Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct.
2022, 95 L.Ed.2d 582 (1987); Runyon v. McCrary, 427 U.S. 160,
168, 174-75, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). In his
complaint, Schouten alleges that he has been subject to
on the basis of both his race and his national origin, and that
such constitutes a deprivation of the rights guaranteed by §
1981. (Complaint ¶ 54). Section 1981, however, does not bar
discrimination purely on the basis of national origin. See
Bennun v. Rutgers State Univ., 941 F.2d 154, 172 (3d Cir. 1991)
("Section 1981 does not mention national origin"), cert. denied
502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 124 (1992); King v.
Township of E. Lampeter, 17 F. Supp.2d 394, 417 (E.D.Pa. 1998)
(holding that disparate treatment on basis of national origin not
within scope of § 1981). Thus, to the extent that Schouten
alleges that he was discriminated against solely on the basis of
his national origin, his claim is not cognizable under §
C. The Entitlement of Plaintiff to a Trial by Jury under the
The availability of a trial by jury under the PHRA is an issue
which has proved divisive between the state courts of this
Commonwealth and the federal courts situated here. Compare Wertz
v. Chapman Township, 709 A.2d 428, 432-33 (Pa. Cmwlth. 1998)
("We agree with the Superior Court in Murphy [v. Cartex Corp.,
377 Pa. Super. 181, 546 A.2d 1217 (1988)] that Art. I, Section 6
[of the Pennsylvania Constitution] only preserves the right to a
jury in those cases where it existed at the time the constitution
was adopted [and therefore it is unavailable here].") (citations
omitted) with Donohue v. Klinghoffer, No. CIV.A.96-8114, 1998
WL 525804, at *2-3 (E.D.Pa. Aug.21, 1998) ("I conclude that the
Pennsylvania legislature knew the significance of the term `legal
relief' written into the statute when it enacted the PHRA [and
moreover]. . . . [u]nder the Seventh Amendment, when a statute
provides for a claim for legal relief, the right to a jury trial
remains in tact.").
In the absence of a decision of the Pennsylvania Supreme Court
to the contrary, I conclude that the reasoning of the several
cases holding that a jury trial is a matter of right under the
PHRA remains sound.*fn7 See Donohue, No. CIV.A.96-8114, 1998
WL 525804, at *2-3; Linsalata v. Tri-State General Ins., Ltd.,
No. CIV. A.92-0596, 1992 WL 392586, at *2 (E.D.Pa. Dec.17, 1992);
Galeone v. Am. Packaging Corp., 764 F. Supp. 349 (E.D.Pa. 1991);
Lubin v. Am. Packaging Corp., 760 F. Supp. 450 (E.D.Pa. 1991).
Therefore, the motion of CSX to strike the demand for a jury
trial will be denied.
D. The Entitlement of Plaintiff to Punitive Damages under PHRA
The Pennsylvania Supreme Court recently held that punitive
not available under the PHRA. Hoy v. Angelone, 554 Pa. 134,
720 A.2d 745, 751 (1998). Thus, the motion of CSX to strike the
demand for punitive damages under the PHRA will be granted.
Based on the foregoing, the motion of CSX will be granted in
part and denied in part. An appropriate Order follows:
AND NOW this 29th day of July, 1999, upon consideration of
the motion of defendant CSX Transportation, Inc., pursuant to
Fed.R.Civ.P. 12(b)(6) to dismiss the claims of plaintiff Jon
Schouten alleging discrimination on the basis of national origin
and unlawful retaliation under Title VII of the Civil Rights Act
of 1964 and the Pennsylvania Human Relations Act, as well as the
claims of Schouten alleging discrimination on the basis of
national origin under the Civil Rights Act of 1866, and to strike
the claims of Schouten for a trial by jury and for punitive
damages under the PHRA and the response of Schouten thereto, and
for the reasons set forth in the foregoing memorandum, it is
hereby ORDERED that:
1. The motion of CSX to dismiss is GRANTED insofar
as it pertains to claims made by Schouten alleging
retaliatory conduct under Title VII and under the
PHRA, and discrimination on the basis of the national
origin under 42 U.S.C. § 1981. The motion of CSX to
strike the demand of Schouten for punitive damages
under the PHRA is also GRANTED.
2. The motion of CSX is in all other respects
IT IS FURTHER ORDERED that CSX shall answer the complaint no
later than August 19, 1999.