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.
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 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
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 ...