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July 9, 2001


The opinion of the court was delivered by: Thomas N. O'neill, Jr., J.


Plaintiff Sameerah Richards brought suit against Foulke Associates, Inc. and its employees Ellsworth Cropper, Yolanda Davis, Felix Arce, Al Santosusso, Anthony Campbell and Anthony Hiller alleging sexual harassment and sex based discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., The Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951, et seq., and the Philadelphia Fair Practices Ordinance ("PFPO"), Philadelphia Code, § 9-1101 et seq. Before me now is defendants' motion to dismiss plaintiff's PHRA claims, and various elements of her claims under the PFPO pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).


Richards was employed by Foulke as a security guard. She alleges she was disciplined for reporting the "unwanted sexual advances directed at her by her male supervisor Cropper and her male co-workers, Hiller and Campbell." (Pl. Am. Comp. ¶ 18). She further states that "the named defendants" subjected her to unwanted conversation "having explicit sexual meaning" and physically assaulted her.*fn1 Id. ¶ 19. Richards also contends that Foulke failed to provide a policy against sexual harassment, thereby creating an "intimidating, hostile and offensive work environment for the [p]laintiff." Id. ¶ 20. Further, Richards alleges Foulke impermissibly acted "with a retaliatory motive" by transferring her to a different location and decreasing her wages as a result of her opposition to Foulke's alleged unlawful practices. Id. ¶ 22.

Richards filed an administrative charge of discrimination with the Philadelphia Commission on Human Relations*fn2 on August 31, 1999, against Foulke. Richards was terminated from her position on November 9, 1999, and she filed a second charge of discrimination against Foulke with the Philadelphia Commission on November 19, 1999. Both these submissions were dual-filed with the Equal Employment Opportunity Commission and were brought against Foulke only, listing none of the individual defendants. In a letter to the Philadelphia Commission dated June 26, 1999, Richards stated: "It has been 240 days since I filed my complaint . . . . I hereby waive my case at the Philadelphia Commission on Human Relations to the EEOC, for the Right To Sue Letter. It is my intention to pursue this matter in court." On July 27, 2000, the Philadelphia Commission terminated its investigation of plaintiff's charges and on September 7, 2000, the EEOC issued her a right to sue letter

On December 5, 2000, plaintiff initiated this action, and on February 26, 2001, she filed an amended complaint asserting: (1) claims against Foulke under Title VII (Count I); (2) claims against all defendants under the PHRA and under the PFPO (Counts II and III); and (3) state law claims against Cropper, Hiller and Campbell for assault and battery (Count IV). Richards sought compensatory and punitive damages on all counts.

On March 20, 2001 defendants Foulke, Davis, Arce, and Santosusso ("moving defendants") filed a motion to dismiss Counts II and III of plaintiff's amended complaint. The moving defendants argued that: (1) plaintiffs PHRA claim should be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction due to plaintiff's failure to exhaust her administrative remedies prior to filing this suit; (2) plaintiff's PHRA and PFPO claims should be dismissed as to the individual defendants because they were not named in either of plaintiff's administrative charges; (3) punitive damages are not available under the PHRA and such claims should be dismissed with respect to the moving defendants; (4) compensatory damages for pain and suffering, emotional upset and mental anguish are not available under the PFPO; and (5) punitive damages against the moving defendants under the PFPO may not exceed $400. In her brief in opposition to defendants' motion, plaintiff conceded that her PHRA claims and punitive damages claims under the PFPO against the moving defendants should be dismissed, and that punitive damages are not available under the PFPO. (Pl's Resp. at 2).*fn3 Remaining before me is moving defendants' motion to dismiss plaintiff's claim under the PFPO against the individual defendants. Should some or all of plaintiff's PFPO claim survive, defendants move to dismiss any compensatory damage claims for pain and suffering under that statute.


It is not clear whether defendants' motion is based on Rule 12(b)(1) or 12(b)(6). Defendants attempting to dismiss a claim for failure to exhaust administrative remedies should file a motion pursuant to Rule 12(b)(6), failure to state a claim upon which relief can be granted.

See Laube v. Secretary of the Air Force, CIV. A. No. 99-1325, 1999 WL 305520, at *1 (E.D.Pa. May 12, 1999) (converting a motion to dismiss for failure to exhaust administrative remedies made pursuant to Rule 12(b)(1) into a 12(b)(6) motion).

The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the complaint. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). In deciding the motion I must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the [non-moving party]." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). A claim may be dismissed on 12(b)(6) grounds only if the plaintiff cannot demonstrate any set of facts in support of the claim that would entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). In order to survive a 12(b)(6) motion, plaintiff must make sufficient allegations to support her claim, but does not need to demonstrate that ultimately she will prevail on the merits. Id.

It is well settled that withdrawal of one's claims prior to a determination by the proper administrative agency constitutes failure to exhaust one's remedies. See Rivera v. United States Postal Service, 830 F.2d 1037, 1039 (9th Cir. 1987) ("To withdraw is to abandon one's claim, to fail to exhaust one's remedies.") Since plaintiff voluntarily removed her claim from consideration by the Philadelphia Commission, no agency was given an opportunity to fully investigate the merits of her claim and it therefore was never subjected to proper administrative review. The question before me then is whether the exhaustion of administrative remedies is required before commencing an action under the PFPO.

My review of Pennsylvania law reveals no Supreme Court precedent on the issue of whether an aggrieved party under the PFPO must first exhaust her administrative remedies before proceeding to court. In order to predict how the Supreme Court of Pennsylvania would resolve this question of unsettled state law, I should consider "relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how ...

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