United States District Court, Middle District of Pennsylvania
November 1, 2002
DANIEL ACKAH, PLAINTIFF
HERSHEY FOODS CORP., DEFENDANT.
The opinion of the court was delivered by: John E. Jones, III, United States District Judge.
On October 16, 2001, Plaintiff Daniel Ackah ("Ackah"), an African
American whose nation of origin in Ghana, initiated this action by filing
a complaint against his employer, Defendant Hershey Foods Corp.
("Hershey"). The complaint contained several counts alleging numerous
civil rights violations. The only remaining count in Plaintiff's
complaint alleges "discriminatory treatment on the basis of [Ackah's]
race, national origin and/or in retaliation for [Ackah's] prior protected
activities . . ."
This is a motion for judgment on the pleadings, pursuant to
Fed.R.Civ.P. 12(c), brought by Hershey. Hershey urges this Court to
dismiss any of Plaintiff's claims for the period after October 6, 1997 as
untimely, to the extent that they are based
on the Pennsylvania Human Relations Act ("PHRA").*fn1
Plaintiff began his employment with Hershey in 1989. In June of 1997,
Plaintiff completed an application for promotion which was ultimately
denied by Hershey. In October of 1997, based on his belief that he was
being denied training opportunities, interviews and ultimately promotions
because of his race and national origin, Plaintiff filed a complaint with
the Pennsylvania Human Relations Committee ("PHRC") which was
subsequently cross-filed with the Equal Employment Opportunity Commission
On April 17, 2000, Plaintiff submitted a signed General Intake
Questionnaire to the EEOC indicating that he was pursuing his
discrimination claim on the basis of, inter alia, race, color, national
origin and retaliation.
On August 27, 1999, while his charges of discrimination were still
pending before the PHRC and EEOC, Plaintiff was terminated.
On October 9, 2000, a formal charge prepared by EEOC staff was signed
and verified by Plaintiff. Within the charge, Plaintiff alleged that
Hershey unlawfully retaliated against him for filing the October 6, 1997
STANDARD OF REVIEW:
"After the pleadings are closed but within such time as not to delay
the trial, any party may move for judgment on the pleadings."
Fed.R.Civ.P. 12(c). The standard used in analyzing a motion for judgment
on the pleadings is identical to the standard applicable to a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). Chovanes v.
Thoroughbred Racing Association, No. CIV. A. 99-185, 2001 WL 43780, *1
(E.D. Pa. January 18, 2001); DeBraun v. Meissner, 958 F. Supp. 227, 229
(E.D. Pa. 1997). The primary difference is that while a Rule 12(b)(6)
motion is filed before the answer, a Rule 12(c) motion is filed after the
answer. Prima v. Darden Restaurants, Inc., 78 F. Supp.2d 337, 341-42
A motion to dismiss under Rule 12(b)(6) admits the well-pleaded
allegations of the complaint but denies their legal sufficiency. Hospital
Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740 (1976).
In reviewing a motion to dismiss under 12(b)(6), the court must accept as
true all factual allegations of the complaint and draw all reasonable
inferences in the light most favorable to the plaintiff. Board of
Trustees of Bricklayers and Allied Craftsmen Local 6 of New Jersey v.
Wettlin Assoc., Inc., 237 F.3d 270, 272 (3d Cir. 2001) (citation
"A court may dismiss a complaint only if it is clear that no relief
could be granted under any set of facts that could be proven consistent
with the allegations." Ramadan v. Chase Manhattan Corp., 229 F.3d 194,
195-96 (3d Cir. 2000) (citing Alexander v. Whitman, 114 F.3d 1392, 1398
(3d Cir. 1997)). "The issue [under Rule 12(b)(6)] is not whether a
plaintiff will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims." Maio v. Aetna, Inc., 221 F.3d 472,
Cir. 2000) (citations and internal quotation marks omitted).
Rule 12(c) of the Federal Rules of Civil Procedure provides in part:
If, on a motion for judgement on the pleadings, matters
outside the pleadings are presented to and not excluded
by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule
56, and all parties shall be given reasonable opportunity
to present all material made pertinent to such motion by
Federal Rule of Civil Procedure Rule 12(c).
In the instant case, Hershey has filed a motion for judgment on the
pleadings alleging that Plaintiff's claims based on the PHRL are time
barred except to the extent that they are based on his October 6, 1997
PHRC complaint. Attached to its Answer, Hershey has filed two exhibits
— Plaintiff's complaint to the PHRC and the Notice of Charge of
Discrimination that Plaintiff filed with the EEOC.
Although we shall consider these exhibits in our ruling on this
motion, we shall not convert this motion into a motion for summary
judgment. In so doing, we note that Federal Rule of Civil Procedure
(10)(c) provides that "[a] copy of any written instrument which is an
exhibit to a pleading is a part thereof for all purposes." Both
complaints and answers are considered to be pleadings under the Federal
Rules. See Fed.R.Civ.P. (7)(a).
In its brief in opposition to Hershey's motion, Plaintiff has attached
two exhibits — the General Intake Questionnaire submitted to the
EEOC and a letter to Plaintiff from Defendant's counsel. Notwithstanding
the fact that these exhibits are attached to a motion rather than to a
pleading, by applying and extending the reach of the doctrine of
incorporation by reference beyond Rule 12(b)(6) motions to this
Rule 12(c) motion, we could in theory consider those exhibits without
converting this motion for judgment on the pleadings to a motion for
summary judgment. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.
2002) ("[g]iven that the operative rule language is identical and that
the provisions serve the same purpose, we believe that the Rule 12(b)(6)
incorporation by reference doctrine should apply in Rule 12(c) cases as
well"). Under the doctrine of incorporation by reference as relevant to
this scenario, "a document attached to a motion for [judgment on the
pleadings] may be considered by the court without converting the motion
into one for summary judgment only if the attached document is: (1)
central to the plaintiff's claim; and (2) undisputed." Here, because the
documents appended to Plaintiff's brief in opposition are not directly
relevant to the timeliness issue, we will not consider them.
The crux of Hershey's argument is that any of Plaintiff's claims of
discrimination brought under the PHRA that are not based on his October
6, 1997 PHRC complaint are time barred because Plaintiff failed to
exhaust his administrative remedies in reference to those claims.*fn2
The provisions of the PHRA mandate that a plaintiff file an
administrative complaint with the PHRC "within 180 days after the alleged
act of discrimination." 43 P.S. § 959(h). A failure to adhere to
these administrative exhaustion requirements
will preclude the plaintiff
from availing herself of judicial remedies available under the PHRA. See
Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1996), cert.
denied, 522 U.S. 914, 118 S.Ct. 299. "The Pennsylvania courts have
strictly interpreted this requirement, and have repeatedly held that
persons with claims that are cognizable under the Human Relations Act must
avail themselves of the administrative process of the Commission or be
barred from the judicial remedies authorized in Section 12(c) of the
Act." Id., (internal quotations omitted), citing Vincent v. Fuller Co.,
532 Pa. 547, 616 A.2d 969, 974 (Pa. 1992); Fye v. Central Transp. Inc.,
487 Pa. 137, 409 A.2d 2 (Pa. 1979); Clay v. Advanced Computer
Applications, Inc., 522 Pa. 86, 559 A.2d 917 (Pa. 1989); Richardson v.
Miller, 446 F.2d 1247, 1248 (3d Cir. 1971).
Plaintiff contends that he was not required to re-exhaust his
administrative remedies because the termination which occurred on August
27, 1999, several years subsequent to the filing of his PHRC complaint,
was nonetheless within the scope of the discriminatorily-based adverse
employment actions alleged within his previously filed PHRC complaint.
This argument rests on Third Circuit Title VII case law, which holds that
"[t]he relevant test in determining whether [Plaintiff] was required to
exhaust [his] administrative remedies . . . is whether the acts alleged
in the subsequent Title VII suit are fairly within the scope of the prior
EEOC complaint, or the investigation arising therefrom." Waiters v.
Parsons, 729 F.2d 233, 237 (3d Cir. 1984); see also Antol v. Perry,
82 F.3d 1291 (3d Cir. 1996) (applying the test articulated in Waiters,
but finding that the core grievances in the suit were not within the
scope of the EEOC complaint filed prior to that suit).
Although not explicitly asserted by Plaintiff, it must be that he
presumes that this Court will extend the applicability of the Waiters test
to PHRA claims as well. "While the Pennsylvania courts are not bound in
their interpretations of Pennsylvania law by federal interpretations of
parallel provisions in Title VII, . . . its courts nevertheless generally
interpret the PHRA in accord with its federal counterparts." Kelly v.
Drexel University, 94 F.3d 102, 105 (3d Cir. 1996) (citations omitted).
"Indeed, the [PHRA] should be construed in light of `principles of fair
employment law which have emerged relative to the federal [statute]
. . .'" Chmill v. City of Pittsburgh, 488 Pa. 470, 412 A.2d 860, 871
(1980), quoting General Elec. Corp. v. PHRC, 469 Pa. 292,
365 A.2d 649, 654 (1976).
In Waiters, the Court's rationale in elucidating its test was that "the
purposes of the statutory scheme are not furthered by requiring the victim
to file additional EEOC complaints and re-starting the 180 day waiting
period . . . [O]nce the EEOC has tried to achieve a consensual resolution
of the complaint, and the discrimination continues, there is minimal
likelihood that further conciliation will succeed. This slim likelihood
of successful conciliation does not justify forcing the victim to wait an
additional 180 days to file suit." Waiters, 729 F.2d at 237.
Applying the principles and test articulated in Waiters to the case at
bar, we find that the specific allegations within the instant complaint
"fairly encompass" those set forth within the PHRC complaint. Antol, 83
F.3d at 1296. Plaintiff's complaint to the PHRC alleged that Hershey had
failed to interview, train and promote him on the basis of his race and
national origin. Plaintiff's complaint in the instant matter sets forth
the very same allegations of discrimination as a basis of non-promotion,
but includes the additional assertion that
he was terminated on the basis
of his race and national origin. Unlike Antol, in which the plaintiff's
suit in federal court was based on gender discrimination whereas his
administrative complaint alleged only handicap discrimination, here, the
theory of discrimination in Plaintiff's complaints remains constant.
Moreover, the underlying purpose of the exhaustion requirement, that of
providing agencies the opportunity to settle disputes, has been furthered
in this case since the PHRC had notice of Plaintiff's allegations of
racial and national origin discrimination since 1997.
NOW, THEREFORE, IT IS ORDERED THAT:
1. Defendant's Motion for Judgment on the Pleadings (doc. 10) is denied.