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Deserne v. Madalyn and Leonard Abramson Center for Jewish Life

November 17, 2010


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


Until 2009, plaintiff Marie Pierre Deserne was employed as a Certified Nursing Assistant by defendant Madlyn and Leonard Abramson Center for Jewish Life, Inc. Following her termination, she dual-filed charges of discrimination with the Pennsylvania Human Relations Commission and the Equal Employment Opportunity Commission. Plaintiff's PHRC charge included two counts, both premised on her alleged disability due to a facial disfigurement. Count I of the PHRC charge alleged harassment and Count II of the PHRC charge alleged wrongful suspension of employment. The PHRC charge contained no reference to plaintiff's race or national origin.

The PHRC and EEOC made no findings on plaintiff's charges, but issued right to sue letters, after which plaintiff filed the instant action, alleging: (i) tortious wrongful discharge; (ii) violation of the Civil Rights Act of 1866, 42 U.S.C. Section 1981(a)-(c), based on alleged disability discrimination; (iii) breach of Sections 5(a) and 9 of the Pennsylvania Human Relations Act, 43 P.S. § 951-963, also based on alleged disability discrimination; and (iv) breach of Title VII of the Civil Rights Act, 42 U.S.C. § 2000 et seq., again based on disability discrimination. Plaintiff characterizes herself as "a black female individual . . . born in the Country of Haiti and [ ] otherwise an adult citizen and resident of the Commonwealth of Pennsylvania." Pl.'s Compl. at ¶ 3. She also alleges that in or about 2006, she "developed a facial disfigurement skin condition diagnosed as exogenous ochronisis . . . ." Pl.'s Compl. at ¶ 10.

Defendant now moves to dismiss Counts I and II of plaintiff's complaint. For the reasons that follow, I will grant defendant's motion to dismiss.


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).*fn1

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. Cnty. 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.


Count I: Tort of Wrongful Discharge

In Count I of her complaint, plaintiff appears to raise claims of discrimination based on disability, race and/or national origin, alleging that "being born black and born a West African National from the Country of Haiti and treated badly by the [defendant], by and through its agents, servants and/or employees, at all material times hereto, constitutes both harassment and disability discrimination." Pl.'s Compl. at ¶ 35. To the extent that Count I -- captioned as a claim for the "tort of wrongful discharge" -- constitutes a common law claim for wrongful termination, plaintiff's claim is preempted by the PHRA. As the Pennsylvania Supreme Court recognized in Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 918 (Pa. 1989), the "PHRA provides a statutory remedy that precludes assertion of a common law tort action for wrongful discharge based upon discrimination." See also O'Neil v. Montgomery Cty. Cmty. Coll., No. 05-5169, 2006 WL 3718013, at *2 (E.D. Pa. Dec. 13, 2006). "[I]n order to assert a claim for wrongful discharge from employment which is cognizable under the Pennsylvania Human Relations Act, an aggrieved party must utilize administrative remedies available through the PHRC before asserting a cause of action in court." Clay, 559 A.2d at 918, citing Householder v. Kensington Mfg. Co., 520 A.2d 461 (Pa. 1987).

Endeavoring to circumvent defendant's preemption defense, in her response to defendant's motion to dismiss plaintiff appears to characterize the claims asserted in Count I as having been brought pursuant to the PHRA. Plaintiff attaches copies of her PHRC and EEOC "right to sue" letters and asserts that she "has the right to bring an action in state court [sic] for a judicial determination of her allegations of discrimination, pursuant to the [Pennsylvania Human Relations Act] . . . ." Pl.'s Resp. to Def.'s Mot. at 4. Even assuming arguendo that Count I asserts claims under the PHRA, rather than preempted claims for common law wrongful discharge, to the extent that it asserts claims for discrimination based on race and/or national origin, it cannot withstand defendant's motion to dismiss.*fn2

Plaintiff did not assert a claim for wrongful termination based on race and/or national origin to the PHRC and she cannot do so here for the first time. "Allowing a discharged employee to commence an action in the courts without first exhausting administrative remedies would be logically inconsistent with the legislature's having created the PHRC to function as an efficient mechanism for handling such disputes." Clay, 559 A.2d at 919. The "exhaustion requirement is designed to provide sufficient notice to the defendant concerning the charges and obtain voluntary compliance without resort to litigation." Fucci v. Graduate Hosp., 969 F. Supp. 310, 316 (E.D. Pa. 1997) (citation omitted). Plaintiff's PHRC charge, which alleged only that she had been discriminated against for her disability identified as "a facial disfigurement," did not put the agency on notice of potential discrimination based on race and/or national origin. See Def.'s Mot., Ex. B., at ¶¶ 12, 14, 22, 27.

The PHRC charge does not "make even a vague or oblique reference to racial [or national-origin] discrimination . . . ." Spindler v. Se. Pa. Transp. Ass'n, 47 Fed. App'x 92, 95 (3d Cir. 2002) (finding district court properly dismissed claims for failure to exhaust); see also Merriweather v. Phila. Fed'n of Teachers Health & Welfare Fund, No. 01-476, 2001 WL 695042, at *3-4 (E.D. Pa. June 19, 2001) (granting summary judgment as to race discrimination claim not filed with EEOC in conjunction with plaintiff's claim of age discrimination); Okokuro v. Pa. Dep't of Welfare, No. 00-2044, 2001 WL 185547, at *5 (E.D. Pa. Feb. 26, 2001) (granting summary judgment on claims for retaliation and sexual orientation discrimination where plaintiff "failed to present the Court with any evidence that those events were part of any EEOC investigation into his charges"); Neibauer v. Phila. Coll. of Pharm. and Sci., No. 92-1993, 1992 WL 151321, at *2 (E.D. Pa. Jun. 19, 1992) (dismissing claims of religion and national origin discrimination not raised in EEOC charge where they did not arise out of new acts nor were they like or related to original charges). Only those acts alleged that are "fairly within the scope of [a] prior [administrative] complaint, or the investigation arising therefrom" are considered to have been exhausted. Anatol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (citation omitted). Plaintiff's claim for wrongful termination based on race and/or national origin discrimination is clearly outside of the scope of her prior administrative complaint and her "right to sue" letters cannot constitute evidence that she appropriately exhausted her administrative remedies with respect to such claim.

Accordingly, although she may pursue her claim for disability discrimination pursuant to the PHRA as set forth in Count III of her complaint, plaintiff's complaint does not properly assert a claim for race or national origin discrimination pursuant to the PHRA. Further, because plaintiff has remedies available pursuant to the PHRA, she does not have a ...

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