Notice of Right to Sue, more than 180 days having
passed since the filing of Plaintiff's charge. Plaintiff thereafter
commenced this suit against Aramark Corporation and its subsidiaries,
Aramark Services Management of Pa., Inc. and Aramark Healthcare Support
Services, Inc., Dorothy Homony and Hector Olmo. As against Mr. Olmo,
plaintiff averred that "[s]tarting in May 2001, [she] suffered similar
discriminatory and retaliatory treatment at the hands of Hector Olmo who
replaced Dorothy Homony as a supervisor of PSA's." (Complaint, ¶
As he was nowhere named or otherwise identified in the EEOC charge*fn2,
Defendant Olmo now argues that the plaintiff failed to exhaust her
administrative remedies with respect to him and that the complaint
against him must now be dismissed. In response, the plaintiff alleges
that her claims of retaliation against Mr. Olmo are clearly within the
scope of her EEOC charge and thus she should be excused from naming him
in her administrative complaint. Alternatively, Plaintiff argues that
Defendant Olmo should not be dismissed because he is liable in his
official capacity as an Aramark employee.
Standards Governing Rule 12(b)(6) Motions
In resolving a Rule 12(b)(6) motion to dismiss for failure to state a
claim upon which relief may be granted, the court primarily considers the
allegations in the complaint, although matters of public record, orders,
items appearing in the record of the case and exhibits attached to the
complaint may also be taken into account. Chester County Intermediate
Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir. 1990). In
so doing, the court must "accept as true the factual allegations in the
complaint and all reasonable inferences that can be drawn therefrom."
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000) (internal
quotations omitted). A motion to dismiss may only be granted where the
allegations fail to state any claim upon which relief may be granted and
"if it is certain that no relief can be granted under any set of facts
which could be proved." Klein v. General Nutrition Companies, Inc.,
186 F.3d 338, 342 (3d Cir. 1999) (internal quotations omitted). See
Also, Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir.
Ordinarily, an action under Title VII and/or the PHRA may only be
brought against a party previously named in a charge filed with the
appropriate administrative agency. See: 42 U.S.C. § 2000e-5(f)(1);
Dixon v. Philadelphia Housing Authority, 43 F. Supp.2d 543, 545 (E.D.Pa.
1999). This is because one of the goals behind the administrative
procedures in both Title VII and the PHRA is to encourage a more informal
process of conciliation before allowing the matter to proceed to
litigation. Glickstein v. Neshaminy School District, Civ. A. No.
96-6236, 1999 WL 58578 at *5 (E.D.Pa. Jan. 26, 1999), citing Dreisbach
v. Cummins Diesel Engines, Inc., 848 F. Supp. 593, 595 (E.D.Pa. 1994).
See Also: Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996) ("The purpose
of requiring exhaustion is to afford the EEOC the opportunity to settle
disputes through conference, conciliation, and persuasion, avoiding
unnecessary action in court.").
Under certain circumstances, however, a plaintiff may proceed with suit
against a party not named in the administrative complaint. Davies v.
Inc., 126 F. Supp.2d 391, 393 (E.D.Pa. 2001). The Court of
Appeals for the Third Circuit has recognized that an exception to the
exhaustion requirement exists "when the unnamed party received notice and
when there is a shared commonality of interest with the named party."
Schafer v. Board of Public Education, 903 F.2d 243, 252 (3d Cir. 1990);
Diep v. Southwark Metal Manufacturing Company, Civ. A. No. 00-6136, 2001
WL 283146 at *4 (E.D.Pa. March 19, 2001). Indeed, the Third Circuit Court
of Appeals has articulated a four-part test for determining whether a
district court has jurisdiction under Title VII. Specifically, the court
should consider: (1) whether the role of the unnamed party could through
reasonable effort by the complainant be ascertained at the time of the
filing of the EEOC complaint; (2) whether, under the circumstances, the
interests of a named party are so similar as the unnamed party's that for
the purpose of obtaining voluntary conciliation and compliance it would
be unnecessary to include the unnamed party in the EEOC proceedings; (3)
whether its absence from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party; and (4) whether the
unnamed party has in some way represented to the complainant that its
relationship with the complainant is to be through the named party.
Glickstein, 1999 WL 58578 at *6; Dixon, 43 F. Supp.2d at 546, both citing
Glus v. G.C. Murphy Co., 629 F.2d 248 (3d Cir. 1980), vacated on other
grounds, 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981).
Where discriminatory actions continue after the filing of an EEOC
complaint, however, 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. Waiters v. Parsons, 729 F.2d 233,
237 (3d Cir. 1984). The rationale behind this is that once 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. Id. The relevant test in determining whether
an individual was required to exhaust her administrative remedies,
therefore, 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. Id.; Douris v. Brobst, Civ. A. No.
99-3357, 2000 WL 199358 at *3 (Feb. 14, 2000). Thus the federal court
action may encompass any claims which fall within "the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge
of discrimination." Duffy v. Southeastern Pennsylvania Transportation
Authority, Civ. A. No. 94-4260, 1995 WL 299032 at *3 (May 12, 1995),
quoting Ostapowicz v. Johnson, 541 F.2d 394, 398-399 (3d Cir. 1976);
Hicks v. ABT Associates, Inc., 572 F.2d 960, 966 (3d Cir. 1978).
In this case, our examination of the PHRC/EEOC charge reveals that the
only respondent named is "Aramark" and that the only Aramark employees
identified and whose discriminatory behavior is complained about are
Dorothy Homony and Chris Hornbecker (sic). The charge does not allege
anything about any other Aramark representative, either by name, title or
Moreover, the charge in this matter was filed on May 1, 2001, which is
the date on which the complaint alleges that Mr. Olmo's discriminatory
and retaliatory conduct began. We therefore conclude that Mr. Olmo's role
could have been ascertained at or around the time of the filing of the
administrative complaint. Alternatively it does not appear that plaintiff
would have suffered a lengthy setback had she amended her charge to
include Mr. Olmo.
Indeed, the Notice of Right to Sue was not issued until
April 8, 2002 and then apparently only upon the plaintiff's request. We
believe it is likely that the EEOC's investigation would have been
expanded within this time frame to include an examination into Mr. Olmo's
behavior as well as Ms. Homony's and Mr. Hornbaker's. While Mr. Olmo
apparently succeeded Ms. Homony as the plaintiff's supervisor and to that
extent would perhaps share a "commonality of interest," we cannot find
any other evidence to suggest that he or Aramark had the requisite notice
that the plaintiff was also charging him with the same type of
discrimination which she purportedly suffered at the hands of Defendant
Homony or that he or Aramark had any opportunity to conciliate these
claims prior to the filing of the complaint in this case. Consequently,
we find that the exhaustion exception does not apply here and that the
complaint must be dismissed against Hector Olmo for failure to exhaust
In so holding, however, we dismiss the claims against Mr. Olmo in his
personal capacity only. As noted by our learned colleague, Judge Pollack
in Duffy v. SEPTA, supra., official capacity claims, in contrast to
personal capacity claims, are simply another way of asserting claims
against an office or the company itself. Because there would be complete
identity between the named party and the unnamed defendant when sued in
his official capacity for continuing a company pattern of
discrimination, we believe that the plaintiff should be permitted the
opportunity to elicit discovery into whether or not the Aramark defendants
should have known that Mr. Olmo was behaving in a like manner to Ms.
Homony and Mr. Hornbaker to perpetuate the discriminatory environment
which allegedly existed at Aramark for Plaintiff and her African-American
co-workers. For this reason, we find that the plaintiff's failure to name
Olmo in her EEOC charge does not preclude her from asserting an official
capacity claim against this defendant.*fn3 Duffy v. Septa, 1995 WL
299032 at *2. See Also: Will v. Michigan Department of State Police,
491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989).
An order follows.
AND NOW, this 15th day of November, 2002, upon consideration of the
Motion of Defendant Hector Olmo to Dismiss Plaintiff's Complaint
against him and Plaintiff's response thereto, it is hereby ORDERED
that the Motion is GRANTED IN PART and Plaintiff's claims against
Defendant Hector Olmo in his personal capacity are DISMISSED for
failure to exhaust administrative remedies.