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Yates v. Allegheny Maternal Fetal Medicine

November 12, 2008


The opinion of the court was delivered by: Magistrate Judge Bissoon*fn1


For the reasons that follow, Defendants' Motion to Dismiss (Doc. 4) will be granted in part and denied in part, and Plaintiff will be directed to amend her Complaint.

Plaintiff has filed this lawsuit, pro se, alleging that her former employer and certain of its agents discriminated against her on the basis of religion, race, color, ethnicity and ancestry.

See generally Compl. (Doc. 3) at ¶ 28; see also id. at Section entitled "Jurisdiction" (stating claims under Title VII, 42 U.S.C. § 1981, and Pittsburgh City Code § 659.02). She also alleges sexual harassment and retaliation. See id. at ¶¶ 25, 26. Named as Defendants are "Allegheny Maternal Fetal Medicine," Allegheny General Hospital, and co-worker(s)/supervisors Kimberly Comport ("Ms. Comport"), Connie Miller ("Ms. Miller"), Sharon Gabriel, Susan Mercadente, and Rebecca Sherwood ("Ms. Sherwood") (collectively, "the Individual Defendants"). See id. at ¶¶ 2, 4-8.

Plaintiff exhausted administrative remedies before the City of Pittsburgh Commission on Human Relations ("the PCHR"), and her charge was cross-filed with the EEOC. See generally Exs. A through C to Defs.' Mot. (PCHR complaint and amendments thereto).*fn2 In her initial charge, Plaintiff incorrectly identified her employer as Allegheny General Hospital; she later filed an amendment naming her actual employer, "Allegheny Specialty Practices [Network]." Compare Ex. A to Ex. B; cf. also Defs.' Br. (Doc. 5) at 1 ("Allegheny Specialty Practices Network (ASPN) . . . was at all relevant times [Plaintiff's] employer").

Although Mses. Comport and Miller were not named as respondents, they were identified in "[t]he particulars" of Plaintiff's administrative charges. See Exs. A & C (alleging Ms. Comport, office manager, made disparaging remarks regarding Plaintiff); Ex. B (Ms. Miller terminated Plaintiff "in retaliation for having filed a prior complaint with the [PCHR]"). None of the other Individual Defendants were referenced in Plaintiff's charges. See Exs. A-C.

Defendants argue Plaintiff has failed to exhaust administrative remedies because neither Allegheny Maternal Fetal Medicine nor Allegheny General Hospital were properly named as respondents before the PCHR. See Defs.' Br. at 7-8. The Court agrees that these entities must be dismissed, but for a different reason: they were not Plaintiff's employer. See Ex. B to Defs.' Mot. (Plaintiff amended charge to "correctly identify" her employer, ASPN); Ex. D to Defs.' Mot. (ASPN's "Statement of Position" before PCHR) at ¶ 1 (Plaintiff worked in ASPN's "Department of Maternal/Fetal Medicine").

This infirmity appears easy enough to correct, as Plaintiff need only amend her Complaint to correctly identify as a defendant her actual employer, ASPN. See generally Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) ("leave to amend the pleadings [is given] freely," and amendments "should be liberally granted") (citations omitted); Hamilton v. Leavy, 117 F.3d 742, 749 (3d Cir. 1997) ("courts should allow liberal amendment of pro se complaints") (citation omitted). The Court therefore will grant Defendants' Motion to Dismiss regarding "Allegheny Maternal Fetal Medicine" and Allegheny General Hospital, without prejudice to Plaintiff's filing an amended complaint against ASPN.*fn3

Defense counsel also argue that Plaintiff has failed to exhaust administrative remedies regarding the Individual Defendants. See Defs.' Br. at 2. This is not so for Mses. Comport and Miller, who were specifically identified in the "particulars" of Plaintiff's administrative charges. Compare discussion supra (noting Plaintiff's identification of Mses. Comport and Miller, along with their purported misconduct) with Hitchens v. Greater Pgh. Cmty. Food Bank, 2006 WL 3051901, *3 (W.D. Pa. Oct. 23, 2006) (Ambrose, C.J.) (identifying individual defendants "in the body of the charge satisfies the exhaustion of administrative remedies requirement") (collecting cases); Wilczynski v. Kuhns, 2006 WL 2645144, *15 (W.D. Pa. Sept. 14, 2006) (Conti, J.) (holding same) (citation omitted).

The remaining Individual Defendants, however, were not named in Plaintiff's administrative charges, nor has Plaintiff shown that they received "requisite notice that [their] conduct [wa]s under formal review." See Jackson v. J. Lewis Crozer Library, 2007 WL 2407102, *5 (E.D. Pa. Aug. 22, 2007) (citations and internal quotations omitted). Thus, the claims against Sharon Gabriel, Susan Mercadente and Ms. Sherwood will be dismissed with prejudice.

In connection with Mses. Comport and Miller, Defendants correctly note that these individuals cannot be sued under Title VII. See Defs.' Br. at 9; Newsome v. Administrative Office of Courts of State of New Jersey, 2002 WL 31228037, *2 n.1 (3d Cir. Oct. 4, 2002) ("Title VII does not provide for individual liability") (citation to binding authority omitted). This has no bearing on Plaintiff's claims under the Pittsburgh City Code, however, which permits charges of individual liability under an aiding and abetting theory. See id. at § 659.02(j) (Code prohibits "any person, whether or not an employer," from "aid[ing], incit[ing], compel[ling], coerc[ing] or participat[ing] in the doing of any act declared to be an unlawful employment practice"); see also id. at § 655.07(a) (granting "[p]rivate [r]ight of [a]ction" in Pennsylvania state court for violations of City Code); cf. also generally Ganaway v. City of Pgh., 2008 WL 336297, *1, *4 (W.D. Pa. Feb. 4, 2008) (McVerry, J.) (implicitly recognizing plaintiff may bring City Code claims in conjunction with causes under federal employment discrimination statutes).

Defendants next challenge Plaintiff's claims under Section 1981, arguing that the statute cannot support claims for sexual harassment and discrimination based on religion and national origin. See Defs.' Br. at 9-10. These are accurate statements of the law. See Anjelino v. New York Times Co., 200 F.3d 73, 98 (3d Cir. 1999) ("sex-based claims are not cognizable under [Section] 1981") (citations omitted); Davis v. Mothers Work, Inc., 2005 WL 1863211, *7 (E.D. Pa. Aug. 4, 2005) ( "it is well established that § 1981 does not cover religious discrimination") (citation to binding authority omitted); Gupta v. Sears, Roebuck & Co., 2007 WL 2253609, *2 (W.D. Pa. Aug. 3, 2007) (Fischer, J.) ("national origin alone [can]not give rise to a § 1981 claim") (citation to binding authority omitted).*fn4

Defendants also assert that Plaintiff's race discrimination claims under Section 1981 (and Title VII) are insufficient because they are based on comments regarding her "ethnic dress and hairstyle." See Defs.' Br. at 10. This argument does not account for the notice pleading standards in federal court, and if legal authority supporting a dismissal under Rule 12(b)(6) exists, Defendants have failed ...

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