The opinion of the court was delivered by: A. CAPUTO, District Judge
Presently before the Court is Defendants' Rule 12(B)(6) Motion
to Dismiss Counts III and IV of Plaintiff's Complaint (Doc. 4).
Plaintiff has failed to file a Brief in Opposition to the present
Motion. For the reasons set forth below, following a merits
analysis of the Motion, I will grant the Motion in part and deny
it in part. The Court has jurisdiction over this matter pursuant
to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
Plaintiff Joseph P. Cardamone filed a four-count Complaint,
pro se, on April 4, 2005. (Doc. 1.) In the Complaint, Plaintiff
brings claims against Defendant Murray Management, Inc.
("Murray") for gender discrimination and harassment in violation
of Title VII, 42 U.S.C. § 2000e-2(a), and the Pennsylvania Human
Relations Act ("PHRA"); and against Defendant Toth for violation
of the PHRA and intentional infliction of emotional distress.
Id. The Complaint was not served on Defendants until August 5,
2005. On August 24, 2005, Defendants filed the present Motion to
Dismiss. (Doc. 4.) Plaintiff has failed to file a Brief in
Opposition, which was due by September 12, 2005. This matter is now ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides
for the dismissal of a complaint, in whole or in part, for
failure to state a claim upon which relief can be granted.
Dismissal is appropriate only if, accepting all factual
allegations in the complaint as true and "drawing all reasonable
inferences in the plaintiff's favor, no relief could be granted
under any set of facts consistent with the allegations in the
complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).
In deciding a motion to dismiss, the Court should consider the
allegations in the complaint, exhibits attached to the complaint
and matters of public record. See Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
The Court may also consider "undisputedly authentic" documents
where the plaintiff's claims are based on the documents and the
defendant has attached a copy of the document to the motion to
dismiss. Id. The Court need not assume that the plaintiff can
prove facts that were not alleged in the complaint, see City of
Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir.
1998), nor credit a complaint's "bald assertions" or "legal
conclusions." Morse v. Lower Marion Sch. Dist., 132 F.3d 902,
906 (3d Cir. 1997).
When considering a Rule 12(b)(6) motion, the Court's role is
limited to determining whether the plaintiff is entitled to offer
evidence in support of the claims. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). The Court does not consider whether the
plaintiff will ultimately prevail. See id. In order to survive
a motion to dismiss, the plaintiff must set forth information
from which each element of a claim may be inferred. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant
bears the burden of establishing that the plaintiff's complaint
fails to state a claim upon which relief can be granted. See
Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
The Third Circuit Court of Appeals has emphasized a policy of
liberally interpreting pro se complaints, so Plaintiff's
complaint should be held to less stringent standards than formal
pleadings drafted by lawyers. See Weaver v. Wilcox,
650 F.2d 22, 26 (3d Cir. 1981); Henderson v. Fisher, 631 F.2d 1115, 1117
(3d Cir. 1980); see also Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (per curiam).
1. Violation of the Pennsylvania Human Relations Act (PHRA)
In Count III, Plaintiff sets forth a PHRA claim against
Defendant Toth in her individual capacity. Defendants contend
that because Plaintiff named only Defendant Murray in the caption
of his complaint with the Pennsylvania Human Relations Commission
("PHRC"), he has failed to exhaust his administrative remedies
with respect to Defendant Toth. For the following reasons, I
First, the Court notes that Defendants have attached a copy of
Plaintiff's complaint filed with the PHRC, as an exhibit to their
Motion. (Doc. 5, Ex. A.) As Defendants correctly note, this Court
may review certain matters outside the Complaint when considering
a motion to dismiss. See FED. R. CIV. P. 12(b)(6).
Specifically, the Court of Appeals for the Third Circuit has
ruled that the Court may also consider and take judicial notice
of "an undisputedly authentic document that a defendant attaches
as an exhibit to a motion to dismiss if the plaintiff's claims
are based on the document." Pension Ben. Guar. Corp. v. White Consol. Ind., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993). Therefore, I will take notice of Plaintiff's PHRC
complaint, and continue to treat Defendants' motion as a Motion
Next, although the enforcement provisions of the PHRA state
that any complaint filed with the PHRC must "be so filed within
one hundred eighty days after the alleged act of discrimination,"
43 PA. CONS. STAT. § 959(h) (2005), an exception to the
exhaustion requirement has been recognized for an unnamed party,
where the party was effectively given notice. The United States
District Court for the Eastern District of Pennsylvania, in
Kunwar v. Simco, 135 F. Supp. 2d 649 (E.D. Pa. 2001), aptly
detailed the exception. There the court explained:
Generally, an employee must exhaust all
administrative remedies by filing a charge of
discrimination with the appropriate state or federal
agency before filing suit under Title VII or the
PHRA. See, e.g., Waiters v. Parsons, 729 F.2d 233,
237 (3d Cir. 1984). In exhausting her administrative
remedies, the plaintiff is required to name all
persons alleged to have committed acts of
discrimination. See 42 U.S.C. § 2000e-5(f)(1);
43 P.S. § 959. The purpose behind this rule is to alert
the implicated parties and to encourage an informal
conciliation process in lieu of trial. See Dreisbach
v. Cummins Diesel Engines, Inc., 848 F. Supp. 593,
595 (E.D. Pa. 1994). There are, however,
circumstances under which a plaintiff may be
permitted to sue a party not specifically named in
the administrative charge. The Third Circuit has
recognized this exception to the exhaustion
requirement "when the unnamed party received notice
and when there is a shared commonality of interest
with the named party." Schafer v. Board of Public
Educ., 903 F.2d 243, 252 (3d Cir. 1990); see also
Glus v. G.C. Murphy Co., 629 F.2d 248, 251 (3d Cir.
1980) (stating four-part test for exception to
exhaustion requirement). As a result of this
exception, district courts have permitted
discrimination suits to go forward, notwithstanding
imperfect exhaustion, in a variety of situations. Id. at 653-54 (citations omitted).
In the present case, Plaintiff's PHRC complaint, although
mentioning only Defendant Murray in the caption, alleges in the
body of the complaint that ...