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September 21, 2000


The opinion of the court was delivered by: Cohill, Senior District Judge.


Plaintiff Dolores Rogan filed this action against her employer, defendant Giant Eagle, Inc. ("Giant Eagle"), alleging that the company failed to promote her in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 1201, et seq. and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq. Giant Eagle has filed a motion to dismiss her claims pursuant to Fed.R.Civ.P. 12(b)(6), for failure to file a charge with the Equal Employment Opportunity Commission ("EEOC") within the prescribed 300 day statute of limitations. (Doc. 5). Plaintiff has filed a brief in opposition, to which the defendant has replied. For the reasons set forth below, we will grant defendant's motion and dismiss the complaint.

Factual Background

Dolores Rogan suffered a work-related injury in the fall of 1991, while employed as a meat wrapper by defendant Giant Eagle at its West 26th and Peninsula store in Erie, Pennsylvania. She went through several cycles of being off work, returning to modified light-duty work, and then resuming full-time full-duty work. The injury ultimately required a series of surgeries, after which Ms. Rogan returned to work on December 1, 1996, as a part time meat sampler/demonstrator, working approximately 16 to 22 hours a week. According to the complaint, the injury left her with physical limitations which either substantially limited one or more of her major life activities or caused others to regard her as having an impairment.

In February of 1997, Ms. Rogan saw a posting for a full time meat wrapping position, and applied for the job. Another individual, allegedly with less seniority and with no known disability, got the position. Plaintiff queried both her union and the store's management as to why she was not hired. A letter from the Director of Employee and Labor Relations dated October 6, 1997, informed her that she had not been given the job because she was unable to perform the duties required due to medical limitations.

Plaintiff further avers that after she asked why she hadn't been hired, the defendant engaged in a pattern of harassment and retaliation against her, including attempts to publicly humiliate her and assigning her to undesirable jobs and working hours.

Ms. Rogan filed a charge with the Equal Employment Opportunity Commission and received a dismissal and right to sue letter. She filed this action on October 21, 1999.

Motion to Dismiss Standard

A motion to dismiss tests the legal sufficiency of the complaint. The averments must be viewed in the light most favorable to the plaintiff, and all well-pleaded allegations of the complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A complaint may be dismissed only where no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The statute of limitations may be the basis of a motion to dismiss, provided the complaint on its face shows noncompliance with the applicable limitations period and the affirmative defense clearly appears on the face of the pleading. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n. 1 (3d Cir. 1994); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 299 (2d ed. 1993).

In deciding a motion to dismiss, courts generally consider only the allegations contained in the complaint, any exhibits attached to the complaint, and matters of public record. Oshiver, 38 F.3d at 1384, n. 2; Pension Benefit Guaranty Corp. v. White, 998 F.2d 1192, 1196 (3d Cir. 1993); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 299 (2d ed. 1993). However, a plaintiff's failure to attach or cite documents explicitly relied on or integral to the complaint does not preclude the court, when considering a motion to dismiss, from reviewing the text of these extrinsic documents. Rowe v. Morgan Stanley Dean Witter, 191 F.R.D. 398 (D.N.J. 1999). Courts may consider a document that a defendant attaches as an exhibit to a motion to dismiss, provided that its authenticity is undisputed and that plaintiff's claims are based on the document. Pension Benefit, 998 F.2d at 1196 (citing Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 48 (2d Cir. 1991)), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992). Otherwise, 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. 998 F.2d at 1196. This does not undermine the general rule that where a court considers extrinsic evidence in deciding a motion to dismiss, the motion is converted to one for summary judgment and the parties must be afforded an opportunity to conduct discovery. Rose v. Bartle, 871 F.2d 331, 343 (3d Cir. 1989). The exception to the rule is premised on the theory that when a complaint relies on a document, the plaintiff is clearly on notice as to its contents and the need for an opportunity to refute the evidence is diminished. Pension Benefit, 998 F.2d at 1196-97.



Before addressing the merits of defendant's motion, we must determine which, if any, of the extrinsic documents provided by both parties we may properly consider in deciding this motion to dismiss.

Defendant has filed the following documents with its motion: plaintiff's handwritten union grievance (Def.'s Ex. A); plaintiff's EEOC charge (Def's Ex. B); a letter from defendant's counsel to the EEOC dated July 22, 1998 (Def.'s Ex. C); a letter from the EEOC to Ms. Rogan summarizing the evidence obtained in its investigation of her charges (Def.'s Ex. D-1); the EEOC dismissal and notice of rights form (right to sue letter) (Def.'s Ex. D-2); a letter from defendant's counsel to the EEOC dated December 18, 1998 (Def.'s Ex. E); and a letter from plaintiff's counsel to the EEOC dated June 15, 1998 (Def.'s Ex. F).

Plaintiff's response in opposition to the motion to dismiss includes an affidavit with the following attached exhibits: the ADA intake questionnaire dated April 3, 1998 (Pl.'s Ex. A); the affidavit she filed with the EEOC charge on June 9, 1998 (Pl.'s Ex. B); and a letter from Dale Giovegno from Giant Eagle to the plaintiff dated October 6, 1997 (Pl.'s Ex. C).

Perhaps the broadest standard for what documents a court may consider without converting a 12(b)(6) motion to one for summary judgment, was articulated by the court in Arizmendi v. Lawson, 914 F. Supp. 1157 (E.D.Pa. 1996). Writing in the context of whether employment discrimination claims based on race, sex, pregnancy, and national origin should be dismissed as time-barred, the court found that:

a court may properly look beyond the complaint to matters of public record including court files, records and letters of official actions or decisions of government agencies and administrative bodies, documents referenced and incorporated in the complaint and documents referenced in the complaint or essential to a plaintiff's claim which are attached to a defendant's motion.

Arizmendi, 914 F. Supp. at 1161 (citing Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994); Pension Benefit, 998 F.2d 1192, 1196-97 (3d Cir. 1993), cert. denied, 510 U.S. 1042, 114 S.Ct. 687, 126 L.Ed.2d 655 (1994); Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991); Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986)).

Since Arizmendi, numerous decisions from this jurisdiction have similarly found that a court may consider an undisputedly authentic document attached to a defendant's motion to dismiss, provided that the plaintiff's claims are based on the document, along with matters of public record, without converting the motion to one for summary judgment and requiring the opportunity for discovery required under Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989). See, e.g. Steinhardt Group Inc. v. Citicorp, 126 F.3d 144 (3d Cir. 1997); Beverly Enterprises, Inc. v. Trump, 182 F.3d 183 (3d Cir. 1999); Bryan v. Acorn Hotel, Inc., 931 F. Supp. 394 (E.D.Pa. 1996); Breyer v. Meissner, 23 F. Supp.2d 540 (E.D.Pa. 1998).

Plaintiff argues strenuously that we may not consider any of the proffered documents, without converting the instant motion to one for summary judgment and providing time for discovery. She cites Flint v. City of Philadelphia, 1998 WL 480849 (E.D.Pa. August 12, 1998) in support of this contention. In Flint, the court addressed a motion to dismiss an employment discrimination complaint for failure to file an EEOC charge within the required time period. The parties submitted a number of documents,*fn1 but the court declined to consider any of them, stating that to do so would require converting the motion to dismiss to one for summary judgment. Id. at *1-2. It appears to us that the district court appropriately excluded these documents, since they were neither mentioned in the complaint nor relied upon in the plaintiffs claims. We also find Flint distinguishable in that the submissions made to that court did not include the EEOC charge or related documents from the agency. The district court in that case already had the crucial factual information it needed to resolve the question of timely filing, which is the date the plaintiff filed her charge of discrimination with the EEOC. Id. at *1. The complaint before us does not provide that information.

It is clear to us that under the applicable legal standard we may consider the EEOC charge and related EEOC documents, including the letter from the EEOC summarizing its investigation, the right to sue letter, and the intake questionnaire, either as undisputed documents referenced in the complaint or central to the plaintiff's claim, or as information which is a matter of public record, without converting this motion to one summary judgment.

With regard to Ms. Rogan's intake questionnaire, we are in agreement with those courts which have determined that a questionnaire may constitute official charges for statutory filing purposes. Peterson v. City of Wichita, 888 F.2d 1307, 1309 (10th Cir.) cert. denied, 495 U.S. 932, 110 S.Ct. 2173, 109 L.Ed.2d 502 (1990); Casavantes v. California State Univ., 732 F.2d 1441, 1443 (9th Cir. 1984); EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 18 (2d Cir. 1981); Price v. Southwestern Bell Tel., 687 F.2d 74, 78 (5th Cir. 1982); Getz v. Commonwealth of Pennsylvania Blindness and Visual Services, 1999 WL 768303 (E.D.Pa. Sept.29, 1999); Kuper v. Colonial Penn Insurance Co., 1999 WL 317077 *3, n. 4 (E.D.Pa. May 18, 1999). Using the intake questionnaire to show timeliness is in keeping with the prevailing view that "procedural technicalities should not be used to prevent Title VII claims from being decided on the merits." Revis v. Slocomb Indus., Inc. 814 F. Supp. 1209, 1215 (D.Del. 1993) (quoting Gooding v. Warner-Lambert Co., 744 F.2d 354, 358-59 (3d Cir. 1984)).

We may also consider the letter dated October 6, 1997, since it is referenced at ¶ 20 of plaintiff's complaint.

The remaining submissions are neither referenced in the complaint nor essential to the plaintiff's claims, and we ...

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