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Wynn-Mason v. Levas Communications

July 15, 2010


The opinion of the court was delivered by: O'neill, J.


Plaintiff filed her complaint on March 20, 2009 pursuant to Title VII of the Civil Rights Act of 1964, as amended, and Title I of the Civil Rights Act of 1991. She alleges discrimination and retaliation by her employer based on her gender. Defendant filed a motion to dismiss. I have before me defendant's motion, plaintiff's response and defendant's supplemented reply.


Defendant owns and operates a radio station located in Philadelphia. Plaintiff was hired by then-general manager Cody Anderson as an Account Executive and compensated on a salary plus commission basis for advertising revenue she generated for defendant. She was employed from May 7, 2007 until October 22, 2007 when she resigned.

In July 2007, defendant hired Kernie Anderson as General Manager. "From the inception of his employment, Mr. Anderson would subject [plaintiff] to verbal abuse, insults and intimidating remarks concerning her work performance during staff meetings and in the presence of her co-workers." Compl. ¶ 10. In early October 2007, plaintiff met with Anderson in his office and complained to him about his abusive actions toward her. "He responded in a loud and disrespectful manner and announced to her that he was changing her compensation structure from salary plus commission to commission only without benefits, allegedly because of her work performance." Id. at ¶ 13. Two days later, Anderson sent plaintiff a letter outlining her new compensation structure but the letter did not reflect a promised increase in her commission rate. Plaintiff complained to Anderson about the commission rate but he refused to amend the terms of the letter to reflect their earlier agreement. When plaintiff asked Anderson who else in management she could talk to about her new compensation structure he threatened to fire her. Defendant paid a greater commission to a male Account Executive than to plaintiff for generating the same type of advertising revenue.

Plaintiff complained to defendant's management about Anderson's actions towards her. Defendant took no action in response to her complaints. Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (Charge No. 530-2008-00083), a Notice of Right to Sue was issued and she subsequently filed her complaint in this Court.


Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1955, 173 L.Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949). The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11 (quoting Iqbal, 129 S.Ct. at 1950). The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949.


Defendant moves to dismiss plaintiff's retaliation claim on the grounds that she failed to exhaust her administrative remedies and to allege adequate facts. Defendant also moves to dismiss plaintiff's hostile work environment claim. For the following reasons I will grant defendant's motion to dismiss plaintiff's retaliation claim but grant plaintiff leave to amend her complaint and I will deny the motion to dismiss the hostile work environment claim.

A. Retaliation

A plaintiff alleging discrimination pursuant to Title VII must exhaust her administrative remedies prior to bringing a claim in federal court. 42 U.S.C. § 2000e-16(c); Burgh v. Borough Counsel of Montrose, 251 F.3d 465, 469 (3d Cir. 2000). The Court of Appeals has recognized that this exhaustion requirement serves two purposes:

First, it puts the employer on notice that a complaint has been lodged against [it] and gives [it] the opportunity to take remedial action. Second, it gives the EEOC notice of the alleged violation and an opportunity to fulfill its statutory responsibility of seeking to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.

Bihler v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983). "The relevant test in determining whether [plaintiff] was required to exhaust [her] administrative remedies [ ] is whether the acts alleged in the subsequent . . . suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (quoting Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984)). In order to determine whether plaintiff exhausted her administrative remedies I must ...

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