The opinion of the court was delivered by: J. Curtis Joyner, United States District Judge
This Title VII/Pennsylvania Human Relations Act ("PHRA") action has
been brought before the Court by the Defendant, Hector Olmo, to dismiss
the plaintiff's complaint against him for Plaintiff's failure to exhaust
administrative remedies. For the reasons outlined below, the motion is
granted in part and the plaintiff's claims against Mr. Olmo in his
personal capacity are dismissed.
According to the averments in the complaint, Plaintiff, Michelle
Catagnus, began working part-time for the Aramark defendants in the
linen/distribution department at Presbyterian Hospital in Philadelphia on
April 7, 1997.*fn1 In late 2000, Ms. Catagnus applied for and obtained a
part-time position as a patient service associate at Presbyterian, at
which time she came under the supervision of Defendant Dorothy Homony and
one Chris Hornbaker. Plaintiff further alleges that she was the only
Caucasian worker under Defendant Homony's supervision and that on the
first day that she worked as a patient service associate, she witnessed
Mr. Hornbaker yelling aggressively at Davis Hill, an older
African-American worker, who in turn attempted to walk away. When Mr.
Hornbaker requested Plaintiff to sign a statement attesting that Mr. Hill
had been at fault in the incident, she refused and subsequently advised
both the General Manager of Aramark's Presbyterian operations and the
Presbyterian Hospital liaison with Aramark that Mr. Hornbaker had asked
her to lie about an incident with another employee.
In addition, it was at or around this same time that Ms. Catagnus heard
Mr. Hornbaker refer to another African-American employee as "one stupid
nigger" and that Defendants Hornbaker and Homony filed a group of
disciplinary charges against some 35 African-American employees, which
resulted in a group grievance challenging these charges as racially
motivated. Shortly thereafter (and around the same time that she learned
that the father of Plaintiff's children was African-American), Ms. Homony
began harassing and treating Plaintiff in the same rude manner that she
had previously reserved for African-American employees and stopped
honoring Plaintiff's requests for days off and overtime. (Complaint,
On May 1, 2000, Plaintiff filed her Charge of Discrimination with the
Equal Employment Opportunity Commission against Aramark only, alleging
retaliation for her participation in protected conduct, i.e., supporting
the grievance claims against Aramark and for associating with
African-Americans. In that filing, Plaintiff specifically referenced the
incident about which Mr. Hornbaker had asked her to lie and numerous
instances of alleged discrimination by Ms. Homony. On April 8, 2002, the
EEOC issued Plaintiff a
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 ...