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Zahavi v. PNC Financial Services Group

October 18, 2007


The opinion of the court was delivered by: Lenihan, M.J.

Doc. No. 5


Currently before the Court for disposition is Defendants' Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. No. 5). In this employment discrimination case, Plaintiff has brought claims under the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. ("PHRA"), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), alleging discriminatory treatment and termination based on gender and disability, and sexual harassment.*fn1 Defendants seek dismissal of the entire complaint, contending that Plaintiff failed to timely exhaust her administrative remedies. For the reasons set forth below, the Court will grant Defendants' Motion to Dismiss as to Plaintiff's claims under the PHRA (Count II) and claims for gender discrimination and harassment under Title VII, but will deny the motion in all other respects.


Plaintiff, Lorri Zahavi, was employed by PNC Financial Services Group ("PNC") for approximately 21 years. On April 15, 2005, PNC terminated Plaintiff's employment for allegedly violating its loan procedures and falsifying certain loan information.*fn2 Plaintiff disputes the reasons given for her termination.

Plaintiff subsequently filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). In her complaint, Plaintiff alleges that she filed her original charge of discrimination with the EEOC on December 28, 2005, and that she cross-filed her charge with the Pennsylvania Human Relations Commission ("PHRC"). (Compl. ¶ 24.) Plaintiff did not attach to her complaint a copy of her original charge filed with the EEOC, but rather, attached a copy of what she alleges is the original EEOC charge to her brief in opposition to the motion to dismiss. However, this charge is dated October 11, 2005 and shows an EEOC Received date-stamp of October 12, 2005*fn3 (the "October 11, 2005 charge"). (Ex. A. to Pl.'s Brief in Opp'n to Mot. to Dismiss.) There does not appear to be any charge number assigned to the October 11, 2005 charge. In the October 11, 2005 charge, Plaintiff indicated the cause of the discrimination by checking the box labeled "disability." (Id.) Plaintiff also sets forth a factual statement of the events supporting her disability discrimination charge, and that she was treated more unjustly after her employer learned she was undergoing cosmetic breast implant surgery and her employer then disclosed this information to a third party without permission.*fn4 (Id. at ¶ 5.)

On the other hand, Defendants have attached a copy of a charge of discrimination presented to the EEOC, dated December 28, 2005 and signed by Plaintiff, to their memorandum of law in support of their motion to dismiss (the "December 28, 2005 charge"). (Ex. B to Defs.' Mem. of Law in Supp. of Mot. to Dismiss.) The December 28, 2005 charge contains EEOC Charge No. 172-2006-00259. (Id.) In the original charge filed with the EEOC, Plaintiff indicated the cause of her discrimination charge by checking the box for "disability" and provided a statement alleging facts in support of a claim for discrimination based on disability. This factual statement does not include the allegation regarding cosmetic breast implant surgery. (Ex. B to Defs.' Mem. of Law.)*fn5

A Notice of Charge of Discrimination, referencing EEOC Charge No. 172-2006-00259, was sent to Plaintiff's employer on January 5, 2006. (Ex. B to Defs.' Mem. of Law.) On January 23, 2006, the PHRC issued a letter to Plaintiff notifying her that the EEOC sent a copy of her discrimination charge to the PHRC and that under the work-share agreement between the EEOC and PHRC, the charge was considered filed with the PHRC.*fn6 (Ex. B to Pl.'s Br. in Opp'n.) The exact date that the PHRC received the December 28, 2005 charge from the EEOC is not clear but, in any event, had to be sometime after December 28, 2005 but before January 23, 2006.

On May 10, 2006, Plaintiff filed an amended charge of discrimination with the EEOC, in which she checked the box for "gender" discrimination as well as "disability" discrimination, and provided additional factual allegations in support of her gender discrimination and harassment claims. (Ex. C to Defs.' Mem. of Law.) In particular, the amended charge alleges that she was held to different performance standards than male employees, and that in 2004, she was subjected to humiliating inquiries at work after her supervisor inappropriately revealed to co-workers and customers that she had obtained breast implants. (Id.) The amended charge also alleged that she was discharged for a lending practice that was routinely followed by male employees who were neither disciplined nor terminated for the same or worse offenses. (Id. at ¶¶ 1-2.)

On December 26, 2006, the EEOC issued a right to sue letter in regard to EEOC Charge No. 172-2006-00259. (Ex. D to Defs.' Mem. of Law.) Subsequently, Plaintiff timely instituted the present lawsuit on March 22, 2007 as to EEOC Charge No. 172-2006-00259. In response, Defendants filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). That motion has been fully brief by all parties and is now ripe for disposition.


As the United States Supreme Court recently held in Bell Atlantic Corp. v.Twombly, 127 S.Ct. 1955 (May 21, 2007), a complaint must be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The court must accept as true all allegations of the Complaint and all reasonable factual inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). The Court, however, need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See Cal. Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 127 S.Ct. at 1965 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. (citing 5 C. Wright & A Miller, Federal Practice & Procedure § 1216, pp. 235-36 (3d ed. 2004)). Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 1974.

Courts generally consider only the allegations of the complaint, attached exhibits, and matters of public record in deciding motions to dismiss. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted). Factual allegations within documents described or identified in the complaint may also be considered if the plaintiff's claims are based upon those documents. Id. A district court may consider these documents without converting a motion to dismiss into a motion for summary judgment. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).*fn7


In support of their Motion to Dismiss, Defendants make three arguments. First, Defendants argue that Plaintiff filed a charge of discrimination against her employer with the PHRC on December 28, 2005, more than 180 days after she was discharged from her employment on April 15, 2005. Therefore, Defendants contend Plaintiff's claim under the PHRA is untimely and should be dismissed. Second, Defendants submit that because Plaintiff failed to timely file her original charge with the PHRC within the 180-day filing period, she is not entitled to the 300-day filing period under 42 U.S.C. ยง 2000e-5(e)(1) for filing a charge with the EEOC, and therefore, her ADA claim and her Title VII claims for gender discrimination and harassment are also time-barred. Finally, in the alternative, Defendants submit that in the event the Court finds Plaintiff's ADA and Title VII claims are timely, Plaintiff failed to exhaust her administrative remedies with regard ...

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