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Bachel Han v. Indiana University of Pennsylvania


July 26, 2012


The opinion of the court was delivered by: Judge Nora Barry Fischer


This is an employment discrimination case brought by Plaintiff, Bachel Han, against Defendants Indiana University of Pennsylvania ("IUP"), and Individual Defendants Tony Atwater, Dean Carleen Zoni, Christopher Janicak, Lon Ferguson, Helen Kennedy, John Engler, Tracy Cekada, and Laura Rhodes (collectively, "Individual Defendants"). (See Docket No. [16]). The Defendants, collectively, have filed a partial Motion to Dismiss under Rule 12(b)(6) (Docket No. [17]) in which the Defendants seek dismissal of Counts IV, V and VI of the Plaintiff's Amended Complaint. (Docket No. [17] at ¶ 2). For the reasons that follow, the Defendants' motion [17] is DENIED, without prejudice.


Plaintiff is an adult male who resides in Morgantown, West Virginia. (Docket No. 16 at ¶ 1). In 1986 Plaintiff emigrated from South Korea and became a citizen of the United States in 2001. (Id. at ¶ 14). Plaintiff began his employment with IUP as an Assistant Professor in the Department of Safety Sciences in August 2008. (Id. at ¶ 15). On March 16, 2009 a letter was sent to Plaintiff informing him that his contract for employment would not be renewed*fn1 . (Id. at ¶ 68). The letter stated that Plaintiff's last day of employment would be May 22, 2009. (Docket No. 18-1).

Plaintiff alleges that he completed an EEOC intake questionnaire*fn2 on or about January 8, 2010. (Docket No. 16 at ¶ 96). Plaintiff believed that, based on the filing of the questionnaire, he had timely filed his charges under all applicable state and federal laws. (Id. at ¶ 99). In the questionnaire, Plaintiff identified the Faculty Evaluation Committee ("FEC"), which includes Individual Defendants Engler, Cekada and Rhodes, sufficient notice that they may be party to the suit. (Document 16 at ¶ 101). Plaintiff states that he named Defendant Kennedy individually on the EEOC intake questionnaire. (Id. at ¶ 102). He then filed a formal charge with the EEOC on June 9, 2010. (Id. at ¶ 103). The EEOC issued a right to sue letter to Plaintiff on December 14, 2011. (Id. at ¶ 13).

Plaintiff initiated this suit on March 12, 2012. (Docket No. 1). In response to a first motion to dismiss (Docket No. 13), Plaintiff filed an Amended Complaint on May 31, 2012. (Docket No. 16). Defendants then brought the pending motion to dismiss (Docket No. 17), Plaintiff responded (Docket Nos. 21-22), and the Court heard argument. (Docket No. 25). The motion is now ripe for adjudication.


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of a complaint. The United States Supreme Court has held that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)) (alterations in original).

The Court must accept as true all well-pleaded facts and allegations and must draw all reasonable inferences therefrom in favor of the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949--50, 173 L.Ed.2d 868 (2009); Twombly, 550 U.S. at 555. As the Supreme Court made clear in Twombly, however, the "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. The Supreme Court has subsequently broadened the scope of this requirement, stating that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 566 U.S. at 678 (citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 566 U.S. at 678 (quoting Twombly, 550 U .S. at 557). "This 'plausibility' determination will be 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009) (quoting Iqbal, 566 U.S. at 663-64).

After Iqbal, the United States Court of Appeals for the Third Circuit explained that a district court must conduct the following analysis to determine the sufficiency of a complaint: First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.2010) (quoting Iqbal, 129 S.Ct. at 1947, 1950); see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir.2011), cert. denied, ------ U.S. --------, 132 S.Ct. 1861, ------ L.Ed.2d --------, 2012 WL 296904 (Apr. 2, 2012); Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011).

Twombly and Iqbal have not changed the other pleading standards for a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), and the requirements of FED. R. CIV. P. 8 must still be met. See Burtch, 662 F.3d at 220. Rule 8 requires a showing, rather than a blanket assertion, of entitlement to relief, and "contemplates the statement of circumstances, occurrences, and events in support of the claim presented and does not authorize a pleader's bare averment that he wants relief and is entitled to it." Twombly, 550 U.S. at 555 n. 3 (internal alterations, citations, and quotations omitted). The Supreme Court has explained that a complaint need not be "a model of the careful drafter's art" or "pin plaintiffs' claim for relief to a precise legal theory" so long as it states "a plausible 'short and plain' statement of the plaintiff's claim." Skinner v. Switzer, ------ U.S. --------, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011); see also Matrixx Initiatives, Inc. v. Siracusano, ------ U.S. --------, 131 S.Ct. 1309, 1322 n. 12, 179 L.Ed.2d 398 (2011) (emphasizing that "to survive a motion to dismiss, respondents need only allege 'enough facts to state a claim to relief that is plausible on its face' ") (quoting Twombly, 550 U.S. at 570)).

In deciding a Rule 12(b)(6) motion to dismiss, the Court may consider "only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir.2004). A document forms the basis of a claim if it is "integral to or explicitly relied upon in the complaint." In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir.1999) (emphasis in original; internal citations and quotations omitted).


Defendants move this Court to dismiss Counts IV, V and VI of the Amended Complaint, each of which arise under the PHRA. (See Docket No. 16 at 17-19). To this end, the parties agree that a PHRA claim must be filed within 180 days of the alleged discrimination action. (See Docket No. 18 at 5; Docket No. 22 at 3-4); see also Hatten v. Bay Valley Foods, LLC., No. 12-1122, 2012 WL 1328287, *2 (W.D. Pa. April 17, 2012). They also agree that the filing with the PHRA was done outside of the typical period. What the parties disagree about is whether the 180-day period may be equitably tolled in this case.

It is well-settled that the 180-day period may be equitably tolled in certain circumstances. Colbert v. Mercy Behavioral Health, No. 11-1195, 2012 WL 113705, *4 (W.D. Pa. Jan. 13, 2012). Of interest in this case is the rule that, where "plaintiff was prevented from asserting his [or her] rights in some extraordinary way" tolling may be permitted. Id. Such tolling may be most appropriate in cases involving a pro se plaintiff. See Cunningham v. Freedom Ford Sales Inc., No. 06-205, 2007 WL 2404739 at *5 (W.D. Pa. Aug 17, 2007) (citing Jones v. Baskin, et. all P.C., 738 F. Supp. 937, 940 (W.D. Pa. 1989)).

Plaintiff implicitly raised the possibility of such tolling in his Amended Complaint. Specifically, he asserts that, at the time he commenced formal proceedings with the EEOC by filing an "intake questionnaire," Plaintiff was acting pro se and he was unaware that the 180-day PHRC filing period was different "from either the 300-day filing period for the EEOC charges or from any other analogous filing periods." (Docket No. 16 at ¶¶ 97-98). Thus, he believed that his filing of the questionnaire was timely and satisfied all filing requirements. (Id. at ¶¶ 99-100).*fn3

Viewing the facts of the complaint as true and in a light most favorable to Plaintiff, it is plausible that the Plaintiff may be able to offer evidence to support equitable tolling due to extraordinary circumstances, particularly involving the Plaintiff's inability to fully understand the process in Pennsylvania at the time he was a pro se litigant. Iqbal, 556 U.S. at 662. For these reasons the Court finds it premature to dismiss Plaintiff's filings. Defendants may renew this argument after appropriate discovery.

The next issue raised by the Defendants is that a number of the Individual Defendants -- Engler, Cekada, Rhodes and Kennedy -- were never named in any PHRC or EEOC Charge, and thus, Counts IV, V and VI as to those Defendants should be dismissed because Plaintiff has failed to exhaust his administrative remedies. (Docket No. 18 at 6). Plaintiff claims that his reference to the FEC in the EEOC Charge is sufficient to provide the members of that Committee, including Individual Defendants Engler, Cekada and Rhodes, sufficient notice that they may be party to the suit. (Document 16 at ¶ 101). Plaintiff states that he named Defendant Kennedy individually on the EEOC intake questionnaire. (Id. at ¶ 102).

A PHRA complaint alleging discrimination must contain the names of accused. DuPont v. Slippery Rock Univ., No. 11-1435, 2012 WL 94548, at *3 (W.D. Pa. Jan. 11, 2012). Naming a group of which an individual is a member or referencing an activity in which an individual participated in, even only in the body of a complaint, should provide the individual with notice that they may be one of the accused. Id. This notice requirement can be met for a defendant not named in the complaint where the defendant has "notice and .shared commonality of interest with a named party". Id.

The determination of tolling will ultimately factor into the consideration of notice, validity, and timing in naming defendants. E.E.O.C v. Bass Pro Outdoor World, LLC, No. 3425, 2012 WL 1965685 at * 24 (S.D. Tex. May 31, 2012) (holding that, before discovery there is insufficient evidence to determine if an identity of interest existed between defendants). Until such a time as that issue can be decided with a proper evidentiary basis, the court will not address the question of official versus individual notice*fn4 . The naming of Defendants and their notice also requires the examination of documents that are not currently available to the court for review, as they are not part of, or integral to, the Amended Complaint. See Lum, 361 F.3d at 222 n. 3; In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d at 287. Since these issues require the examination of documents and testimony not present in the pleading, discovery must take place.

The Court notes that, since this is only a partial Motion to Dismiss, there is no prejudice in allowing parties to continue taking discovery. Bajsec v. Borough of Leetsdale, No. 12-0160, 2012 WL 2027307 (W.D. Pa. June 5, 2012). Plaintiff conceded at the motion hearing that if discovery reveals filings are time barred, the related claims would be dismissed. (TOA pg. 6 at 23-25). Similarly, Plaintiff also agreed that if it became clear that notice was not given to certain Individual Defendants, those claims would be dismissed as well. (TOA pg. 12 at 6-7). Should discovery reveal that the facts do not support the Plaintiff's allegations, Defendants are free to bring a motion for summary judgment.


For the above reasons, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss

[17] is DENIED, without prejudice.

Nora Barry Fischer United States District Judge

cc/ecf: All counsel of record

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