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Suooda Ivy v. Verizon Pennsylvania

April 29, 2011

SUOODA IVY PLAINTIFF,
v.
VERIZON PENNSYLVANIA, INC. A PENNSYLVANIA CORPORATION, KIMBERLY ONESKO AN ADULT INDIVIDUAL, DEANNA WYETH AN ADULT INDIVIDUAL, SUSAN NELSON AN ADULT INDIVIDUAL AND MICHELLE BOTTI AN ADULT INDIVIDUAL DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Judge

MEMORANDUM OPINION AND ORDER OF COURT

Pending before the Court are VERIZON PENNSYLVANIA INC.'S MOTION TO DISMISS COUNT III OF AMENDED COMPLAINT (Document No. 18) and the INDIVIDUAL DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (Document No. 20). Defendants have filed briefs in support of their motions, Plaintiff Suooda Ivy ("Ivy") has filed briefs in opposition to the motions and Defendants have filed reply briefs (Document Nos. 19, 21, 23-26). In addition, Defendants have submitted copies of the three charges of discrimination filed by Plaintiff, as well as copies of the corresponding EEOC Determinations (i.e., "right to sue" letters).*fn1 The motions are ripe for disposition.

Factual and Procedural Background

Ivy was employed by Verizon Pennsylvania, Inc. ("Verizon") as a sales consultant from 2001-2010. On March 14, 2011, Plaintiff filed a four-count Amended Complaint. In Count I,

Ivy alleges that Verizon and four Verizon employees, Kimberly Onesko, Deanna Wyeth, Susan Nelson and Michelle Botti (collectively the "Individual Defendants"), discriminated against her on the basis of race, in violation of Title VII. Count II asserts a Title VII Retaliation claim. Count III asserts a Disability Retaliation claim pursuant to the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12112.*fn2 Finally, in Count IV, Ivy asserts parallel race, disability and retaliation claims against all Defendants under the Pennsylvania Human Relations Act ("PHRA").

Ivy filed three separate discrimination charges against Verizon with the EEOC. These charges were cross-filed with the Pennsylvania Human Relations Commission ("PHRC"). None of the Individual Defendants was named as a Respondent. On September 5, 2008, Ivy alleged race and disability discrimination and Title VII retaliation at EEOC Charge No. 533-2008-01180. On September 11, 2009, Ivy alleged retaliation under Title VII and the ADA at EEOC Charge No. 533-2009-01251. On July 5, 2010, Ivy alleged race and disability discrimination and retaliation under both Title VII and the ADA at EEOC Charge No. 533-2010-00668.

On September 9, 2010, the EEOC issued Determinations in response to each charge. The 2009 and 2010 Determinations notified Ivy that she had a right to sue "the Respondent" (i.e., Verizon) "strictly pertaining to the allegations that [s]he was discriminated and/or retaliated against." This language, on its face, appears broad. However, the EEOC further explained that it found that Ivy is a qualified individual with a disability, that Verizon had notice of Ivy's disability, and that Verizon discharged Ivy for leave taken related to her disability in accordance with Verizon's attendance policy. Each of the Determinations contained the following language:

Based on the foregoing, I find that Respondent maintains an attendance policy that denies reasonable accommodation to, discriminates against, and retaliates against Charging Party and a class of individuals with disabilities, in violation of the ADA. (Emphasis added). The Determinations further explained that when the EEOC finds that violations have occurred, "it attempts to eliminate the alleged unlawful practices by informal methods of conciliation" and that Ivy's claim would be "joined with current negotiations with Respondent involving cases like and related." The EEOC stated that if an acceptable settlement is not obtained, Ivy will be advised of court enforcement alternatives.

ADA Retaliation Claim Against Verizon

The parties dispute whether the EEOC "right to sue" letters authorize Plaintiff to pursue an ADA Retaliation claim in court. Ivy points to the "right to sue" language which authorizes her to pursue her allegations that she was "discriminated and/or retaliated against." Verizon contends that Ivy's "right to sue" is limited to the Title VII retaliation claim and seeks dismissal of Count III.*fn3

The Court agrees with Verizon. The EEOC "right to sue" letters specifically state that, in the EEOC's opinion, Verizon maintains an attendance policy that "discriminates against, and retaliates against [Ivy] . . . in violation of the ADA." In other words, the EEOC has found that Verizon committed an ADA Retaliation violation. The "right to sue" letters further explain that the EEOC remains engaged in an effort to eliminate the unlawful practices, and that it will notify Ivy if an acceptable settlement is not obtained. Thus, the EEOC administrative remedy has not yet been exhausted and the ADA Retaliation claim in this lawsuit is not yet ripe.

In accordance with the foregoing, VERIZON PENNSYLVANIA INC.'S MOTION TO DISMISS COUNT III OF AMENDED COMPLAINT (Document No. 18) will be GRANTED. Count III of the Amended Complaint will be DISMISSED WITHOUT PREJUDICE for Plaintiff to re-assert it upon exhaustion of the administrative process.

Claims Against Individual Defendants

The Individual Defendants contend that all claims against them must be dismissed for failure to exhaust administrative remedies because Ivy did not name them as Respondents in her EEOC charges. As noted above, there is no individual liability under Title VII or the ADA, and ...


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