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Lee Johnson v. Psi Pizza

September 25, 2012


The opinion of the court was delivered by: Mannion, M.J.


Presently before the court is the defendants' motion to dismiss the plaintiff's amended complaint, (Doc. No. 10). The plaintiff, an employee of the Domino's Pizza chain of restaurants operated by defendant PSI Pizza, Inc. (hereinafter "PSI Pizza"), claims sexual harassment by his supervisor, defendant Nolan, and retaliation when he presented his allegations to management. (Doc. No. 7). The plaintiff initially filed his charges of harassment and retaliation before the U.S. Equal Employment Opportunity Commission ("EEOC") and Pennsylvania Human Relations Commission ("PHRC"). In addition, the plaintiff alleges defamation and intentional infliction of emotional distress under Pennsylvania law. Finding that the plaintiff has adequately exhausted administrative remedies but failed to allege additional state law claims on which relief can be granted, the motion to dismiss will be DENIED in part and GRANTED in part.


The plaintiff first worked for the defendant from February 1999 to July 2010. (Doc. No. 7 at 2). In July 2001, the plaintiff quit his position, but eventually returned in March 2007 as a delivery driver. (Id.). Defendant Nolan served as the General Manager of store 4871, where the plaintiff was employed. (Id. at 3). From February 2009 to July 2009, the plaintiff took a sabbatical from his position to perform missionary work in Brazil. (Id.). While the plaintiff was in Brazil, other employees reported comments made by defendant Nolan such as "Lee is too busy because he is molesting little boys in Brazil." (Id.). When the plaintiff returned to work in July 2009 and moved in with a fellow male employee, defendant Nolan allegedly made comments suggesting that the two men were homosexuals. (Id.). In addition, defendant Nolan allegedly made comments regarding employee's penises and requested that the plaintiff measure his penis against other employees'. (Id.).

The plaintiff filed a complaint with the EEOC and PHRC on October 27, 2009 stating that he had been subjected to this sexual harassment. (Id. at 1). The plaintiff also asserts that he made formal complaints to PSI Pizza's Operations Manager, Steve Crum, on March 28, 2010 and April 13, 2010. (Id. at 4).

The plaintiff claims that on April 14, 2010, the day after his second complaint to Crum, his hours were cut back from 57 per week to 40 per week in retaliation for asserting a complaint. (Id.). The plaintiff states that no other employee's hours were deceased at that point and that his hours had never been cut back before that date. (Id.). The plaintiff subsequently filed an amended complaint with the EEOC and PHRC including both his sexual harassment and retaliation claims. (Doc. No. 16 at 14). On June 23, 2011, the plaintiff received a "right to sue" letter from the EEOC. (Doc. No. 7 at 2). On July 21, 2011, the plaintiff received a similar letter from the PHRC. (Id.).

The plaintiff filed an initial complaint, (Doc. No. 1), before this court on September 12, 2011. The plaintiff filed an amended complaint on November 10, 2011, (Doc. No. 7).*fn2 The amended complaint comprises six counts: a hostile work environment under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., (hereinafter "Title VII") and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., ("PHRA"); retaliation under both Title VII and the PHRA; defamation; and, intentional infliction of emotional distress. (Doc. No. 7 at 4-9).

On November 18, 2011, the defendants filed the instant motion to dismiss, (Doc. No. 10). On November 30, 2011, the defendants filed their brief in support, (Doc. No. 11). On January 6, 2012, the plaintiff filed a brief in opposition, (Doc. No. 16).*fn3


The defendant's motion to dismiss is brought pursuant to the provisions of Fed. R. Civ. P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. 544, 127 S. Ct. at 1965. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of "necessary elements of the plaintiff's cause of action. Id. Furthermore, in order to satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544, 127 S. Ct. at 1964-65).

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).


Defendants assert various arguments in their motion to dismiss each of the six counts in the plaintiff's amended complaint. Specifically, the defendants contest that: the plaintiff has not properly exhausted his administrative remedies, both with respect to the time of filing and named defendants; the defamation claim is barred by the statute of limitations; the plaintiff has failed to state a claim for intentional infliction of emotional distress; and the claim for punitive damages is barred by PHRC.

As an initial matter, it is important to note that the Third Circuit has held "that the PHRA is the counterpart to the federal anti-discrimination law and the analysis of the claims is identical." Fuhrman v. Quill Corp., 2010 WL 411698 *5 (M.D.Pa. Jan. 27, 2010)(quoting Burgh v. Borough Council of ...

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