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May 12, 2000


The opinion of the court was delivered by: Ludwig, J.


Defendant Topper's Salon and Health Spa, Inc. moves to dismiss the complaint for failure to state claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).*fn1 Jurisdiction is federal question, 28 U.S.C. § 1331, and supplemental, 28 U.S.C. § 1367.

This action presents a Title VII claim for religious and gender discrimination arising out of plaintiff Kathleen V. Mullen's employment with defendant as a manicurist and part-time "esthetician" — or skin care specialist. 42 U.S.C. § 2000e-2. According to the complaint, plaintiff was harassed by other employees because of her religious beliefs and moral convictions. The harassment consisted of sexual remarks that conflicted with her religious tenet that "sexual matters should be held personal and private and certain sexual acts are offensive." Complt. at 5, 10. Despite plaintiff's complaints, management did not take remedial action. Id. at 13. When her manicurist license expired, plaintiff requested full-time skin care work to avoid the harassing comments. Id. at 15. Defendant offered to pay for the renewal of her license, but would not approve the transfer, def.'s motion, ex. B (plaintiff's EEOC charge of discrimination); and plaintiff was subsequently terminated. Complt. at 18.

Count I alleges that defendant permitted the harassment, failed to make reasonable accommodation, and terminated plaintiff because of her "[Christian] moral practices and beliefs" and "in retaliation for her complaints and request for a transfer." Id. at 21b, f. A prima facie case of religious discrimination consists of: 1) plaintiff's bona fide religious belief in conflict with an employment requirement; 2) plaintiff's informing defendant of the belief; and 3) discrimination for failing to comply with the requirement. Protos v. Volkswagen of America, Inc., 797 F.2d 129, 133 (3d Cir. 1986) (citing Turpen v. Missouri-Kansas-Texas Railroad Co., 736 F.2d 1022, 1026 (5th Cir. 1984)). See Weber v. Roadway Express, Inc., 199 F.3d 270, 273 (5th Cir. 2000).*fn2

Here, the complaint is insufficient. It states that "Plaintiff . . . repeatedly complained of this harassment to management at Defendant Topper's. . . ." Complt. at 13. It does not specify that she advised her employer of the religious nature of the alleged discrimination.

Count II — hostile work environment — is also deficient, for failure to exhaust administrative remedies.*fn3 The question is whether plaintiff's EEOC charge of discrimination encompasses both religious discrimination and a hostile work environment claim of sexual harassment. Plaintiff's position is that Count II is "reasonably related" to the factual statement in the EEOC charge. Pl.'s mem. at 11.

"The relevant test in determining whether [plaintiff] was required to exhaust [] administrative remedies . . . is whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint. . . ." Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984)); see also Carter v. Philadelphia Stock Exchange, Civ. A. No. 99-2455, 1999 WL 715205, at * 1 (E.D.Pa. Aug. 25, 1999). Here, plaintiff's EEOC discrimination charge does not set forth information that would constitute notice of a claim of sexual harassment created by a hostile work environment. Only the "religion" box in the section titled "cause of discrimination based on" was checked. The factual allegations in the charge of discrimination consistently refer to harassment attributable to her "moral convictions and beliefs." Def.'s motion at ex. B. The final statement in the charge reads: "I believe I have been discriminated against because of my religion, Christian, in violation of Title VII of the Civil Rights Act of 1964, as amended." Id. Positing that the harassment took the form of comments with "sexual overtones," the claim is not extended to one of a hostile work environment based on sexual discrimination. It is not averred that plaintiff believed she was discriminated against on the basis of her sex.*fn4

Defendant also moves to dismiss the retaliation claims*fn5 because, as with the hostile work environment claim, they were not included in plaintiff's EEOC charge. The charge states: "Ms. Smith [defendant's Personnel Director] . . . referred me to Karen Loreman, Spa Director.*fn6 I spoke to Ms. Loreman on April 30, 1998 and at that time, she informed me that my employment was terminated." Def.'s motion at ex. B. Here again, plaintiff did not mark the box labeled "retaliation" as the cause of discrimination she is alleged to have suffered.

However, it is not necessary for a complaint to mirror an EEOC charge; it must only be "within the scope" of the charge. That the "retaliation" box was not checked does not itself preclude plaintiff's claim. The facts stated in the charge are ample and specific enough to put the EEOC and defendant on notice that plaintiff claimed to have been retaliated against for complaining about the harassment. This failure to exhaust argument is therefore rejected.

As to Count III, the state claim of negligent supervision — [u]nder Pennsylvania law, an employer may be liable for negligent supervision of an employee where the employer fails to exercise ordinary care to prevent an intentional harm to a third-party which 1) is committed on the employer's premises by an employee acting outside the scope of his employment and 2) is reasonably foreseeable.

The complaint also claims punitive damages under Title VII and for negligent supervision. In Kolstad v. American Dental Association, 527 U.S. 526, ___, 119 S.Ct. 2118, 2124, 144 L.Ed.2d 494 (1999), the Court held that a plaintiff may be entitled to punitive damages under Title VII when the employer acts "with malice or with reckless indifference to [the plaintiff's] federally protected rights." Kolstad interpreted 42 U.S.C. § 1981(a) to allow an award of punitive damages based on the employer's "knowledge that it may be acting in violation of federal law, not its awareness that it was engaging in discrimination." Id.*fn7 Defendant is alleged to have known of plaintiff's "repeated" complaints of "constant" harassment. Complt. at 14. Under Kolstad, this allegation is deficient, despite liberal notice pleading requirements. Fed.R.Civ.P. 8(a).

Pennsylvania law allows punitive damages based on "conduct which is `malicious,' `wanton,' `reckless,' `willful,' or `oppressive.'" Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-48 (1984) (quoting Chambers v. Montgomery, 411 Pa. 339, 344-45, 192 A.2d 355, 358 (1963)). See also, Chladek v. Milligan, Civ. A. No. 97-0355, 1998 WL 334699, at *5 (E.D.Pa. June 23, 1998) (refusing to dismiss punitive damages claim where defendants were alleged to have engaged in "vicious" and "violent" behavior that was "reckless" and "without provocation"). As in the instance of the Title VII count, the negligent supervision claim, as stated here, does not support a claim ...

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