The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Defendants' motion to dismiss (Doc. No. 14) brought pursuant to Federal Rule of Civil Procedure 12(b)(6). Among the arguments made in the motion to dismiss is an argument that Plaintiffs failed to complete the administrative exhaustion requirements in good faith. To properly consider this issue, the Court will look beyond the face of the complaint and entertain the motion as one for summary judgment. See Fed. R. Civ. P. 12(d). The Court provided notice to the parties at the telephone conference held June 29, 2010, that the administrative exhaustion argument would be considered as if an argument for summary judgment. (Doc. No. 42.) For the reasons stated more fully herein, Defendants' motion will be granted in part and denied in part.
Plaintiffs Darnella Rideout, Becky Sample, Angela Walters, Tynesa Mathis, Charmarie Hockenberry, and Dawn Crider were employees of the Chambersburg newspaper known as the Public Opinion. The paper was bought by a partnership between Defendant Media News Group ("MNG") and Defendant Gannett Publishing Company ("Gannett") in December 2005. (Doc. No. 1 ¶¶ 12-13.) Defendants TNP Publishing ("TNP") and Texas-New Mexico Newspapers Partnership are wholly-owned subsidiaries of MNG and Gannett, respectively, that participate in the partnership-ownership of the Public Opinion.
In January 2006, shortly after MNG and Gannett's takeover of the newspaper, Defendant Ron Clausen was promoted to the position of Publisher of the Public Opinion. (Doc. No. 1 ¶ 18.) Clausen, in turn, promoted Defendant George Fuller to the position of Circulation Director. (Id. ¶¶ 20-21.) Fuller had no substantive experience in circulation, and Clausen made the decision to promote Fuller without interviewing any female candidates for the position, including Plaintiff Rideout, who was qualified for the position of Circulation Director. (Id. ¶¶ 20-21, 36-38.) Clausen promoted Fuller knowing that Fuller had previously referred to a female employee as a "cunt." (Id. ¶ 46.) As Publisher, Clausen denied women and older workers sick leave, FMLA leave, and promotions. (Id. ¶ 71.) At one point, he inquired why two female employees would even be considered for promotion when they were pregnant or had used maternity leave. (Id. ¶¶ 71-73.)
As Circulation Director, Fuller had supervisory power over Plaintiffs Mathis, Hockenberry, Crider, and Sample. (Id. ¶¶ 79.) Plaintiffs allege that Fuller consistently spoke to female employees in a demeaning manner or ignored them completely, retaliated against those who complained about mistreatment, made sexual comments, refused to hire one female applicant due to her "size," and referred to them using derogatory words such as "cunt" to create an intimidating atmosphere. (Id. ¶¶ 46, 52-55.) Fuller also limited and monitored female employees' smoke breaks in ways male employees' breaks were not monitored. (Id. ¶ 67.) Women were not considered for promotion or vacancies. (Id. ¶ 84.) Due to the hostile atmosphere they experienced, Crider resigned in November 2006; Hockenberry resigned in December 2006; and Mathis resigned in February 2007. (Id. ¶¶ 80-82.)
Although the newspaper had a policy in place regarding complaints of harassment, the policy involved reporting the complaints to Human Resources Liaison Angela Walters, who then would report the complaints directly to Clausen. (Id. ¶¶ 26, 30.) Plaintiff Walters alleges that she received numerous complaints about the hostile work environment created by Fuller. (Id. ¶ 31.) She would pass the complaints on to Clausen, only to see that no corrective action was taken. (Id. ¶ 32.) Rather than act to remedy or investigate the complaints, Clausen would allow reprisals against the complainants to occur. (Id. ¶ 28.)
In one instance, Plaintiff Sample alleges that she was singled out for harassment by Fuller because she was a female supervisor of an all-female group of employees in the Circulation Department and was refused pay for her overtime work. (Id. ¶¶ 41, 45-46.) When Sample was denied reprieve from Clausen, she and Walters attempted to go above his head to the MNG office in Denver. (Id. ¶ 56.) Though MNG promised to conduct a confidential investigation, within days of the complaint, the Circulation Department was restructured, Sample was removed of her supervisory duties, and it was widely known that Sample had complained. (Id. ¶¶ 57-64.) Sample was denied incentives she had previously earned. (Id. ¶ 66.) Sample was also denied other employment perks, such as cell phone reimbursement. (Id. ¶ 69.) She resigned under constructive discharge from her position in February 2007. (Id. ¶ 77.) Walters also resigned or was constructively discharged at that time. (Id. ¶ 75.)
On July 3, 2007, Plaintiffs filed a collective complaint with the Pennsylvania Human Relations Commission ("PHRC") alleging violations of the Pennsylvania Human Relations Act ("PHRA") and Title VII. (Doc. No. 46-2.) The administrative complaint was "dual filed" with the Equal Employment Opportunity Commission ("EEOC"). (Id.) Defendants filed a motion to dismiss or in the alternative a motion for clarification. On April 29, 2008, the PHRC denied Defendants motion to dismiss and ordered Plaintiffs to file amended individual complaints. (Doc. No. 15-2, Ex. B.) Plaintiffs failed to file amended complaints and on October 28, 2008, the PHRC initiated failure to cooperate proceedings against Plaintiffs and advised that if Plaintiffs continued to fail to file their individual amended complaints, the case would be processed for administrative closure for failure to cooperate. (Id., Ex. D.) On December 16, 2008, Plaintiffs filed individual amended complaints. (Doc. Nos. 46-3, 46-4, 46-5, 46-6, 46-7, 46-8.) Defendants again moved to dismiss for lack of legal sufficiency on December 25, 2008, (Doc. No. 15-2, Ex. F.), and Defendants filed a supplement to that motion on January 5, 2009, (Id., Ex. G). The PHRC never ruled on Defendants' motion to dismiss, and on March 4, 2009, Plaintiffs filed a complaint with this Court. (Doc. No. 1.)
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint, Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), and is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the Supreme Court has recently held that while the 12(b)(6) standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of entitlement to relief. . . . '[F]actual allegations must be enough to raise a right to relief above the speculative level.'" Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must "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 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009)). Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is material if it might affect the outcome of the suit under the applicable law, and it is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). At summary judgment, the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law. Id. at 251-52. In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the nonmoving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322.
With respect to the sufficiency of the evidence that the nonmoving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Initially, the Court notes Plaintiffs' complaint is somewhat ambiguous in that the complaint appears to conflate multiple claims in each count. That is, no count clearly states what claim is being raised. Rather, the counts simply cite a statute in a heading, with limited explanation. For example, each odd numbered count of the complaint begins "Title VII Discrimination, Hostile Work Environment, and Retaliation." Further, each even numbered count of the complaint begins "PHRA." Defendants do not specifically address whether this method of pleading satisfies Twombly, 550 U.S. 544, and Iqbal, 129 S. Ct. 1937. Nor do Defendants request a more definite statement. Therefore, rather than addressing these issues sua sponte, the Court will construe the complaint as raising gender discrimination, hostile work environment, and retaliation claims under Title VII in each odd numbered count of the complaint. The Court will further construe the complaint as raising gender discrimination, hostile work environment, and retaliation claims under the PHRA in each even numbered count of the complaint.
Defendants first ask the Court to dismiss the complaint in its entirety because Plaintiffs have failed to exhaust their administrative remedies. Specifically, Defendants maintain that, although Plaintiffs filed claims with the PHRC and EEOC, they did not comply with the administrative proceedings in good faith, which constitutes a failure to exhaust their administrative remedies.*fn1 In the alternative, Defendants raise a number of additional grounds in their motion to dismiss, namely that: (1) Plaintiff Rideout's failure to promote claims under Title VII and the PHRA are barred by the administrative statute of limitations; (2) Plaintiff Hockenberry and Plaintiff Crider's PHRA claims are barred by the administrative statute of limitations; (3) Plaintiff Sample is the only Plaintiff to have sufficiently alleged a retaliation claim under Title VII and the PHRA; (4) Defendants Clausen and Fuller cannot be held individually liable under Title VII because they are not "employers" as that definition is intended in 42 U.S.C. § 2000(e)(b); (5) Plaintiffs' ADEA and age discrimination claims are insufficient; and (6) Plaintiffs' class action claims must be dismissed. The Court will consider these matters in turn.
A. Failure to Exhaust PHRA Administrative Remedies
The PHRA makes it unlawful for an employer to discriminate against an employee on the basis of sex. 43 P.S. § 955(a). The Act further provides that the right to be free from sex discrimination in the employment context is "a civil right which shall be enforceable as set forth in this act." 43 P.S. § 953 (emphasis added). To seek relief under the PHRA, the aggrieved party must file a complaint with the PHRC. 43 P.S. § 959(a). After the complaint has been filed, the PHRC is to make a prompt investigation of the allegations contained therein. 43 P.S. § 959(b)(1). Within thirty days of docketing the complaint, the PHRC is to serve the named respondent and the respondent is given thirty days to file an answer. 43 P.S. § 959(b)(2)-(3). If within one year of filing the complaint with the PHRC, the PHRC dismisses the complaint or fails to resolve the claim, the PHRC must notify the complainant. 43 P.S. § 962(c)(1). Upon receipt of such notice, the complainant "shall be able to bring an action in the courts of common pleas of the Commonwealth." Id.
In creating the PHRC, "the Legislature recognized that only an administrative agency with broad remedial powers, exercising particular expertise, could cope effectively with the pervasive problem of unlawful discrimination. Accordingly, the Legislature vested in the Commission, quite properly, maximum flexibility to remedy and hopefully eradicate the 'evils' of discrimination." PHRA v. Alto-Reste Park Cemetery Assoc., 306 A.2d 881, 887 (Pa. 1973) (citing 43 P.S. § 952(a)). To ensure that the PHRC is able to effectuate this purpose, the Supreme Court of Pennsylvania has held that the procedures set forth in the act for resolving such claims are the "mandatory rather than discretionary means of enforcing the right" created by the PHRA. Clay v. Advanced Computer Applications, 559 A.2d 917, 919 (Pa. 1989). As such, the Act gives the PHRC "exclusive jurisdiction of a complaint alleging violations ...