United States District Court, W.D. Pennsylvania
Flowers Conti Chief United States District Judge
Trumbull Corporation (“Trumbull” or
“Defendant”) is a heavy-highway construction
contractor with more than 500 employees. Plaintiff Karen
Devine (“Devine” or “Plaintiff”) was
a journeyman concrete mason and finisher (one of only four
women), who was employed by Trumbull (except for seasonal
layoffs) from July 2005 until she was terminated. (Amended
Complaint, ECF No. 9). Plaintiffs' amended complaint
asserts three counts against Trumbull: Count I - sex
discrimination under Title VII; Count II - retaliation under
Title VII; and Count III - hostile work environment. Trumbull
filed a motion to dismiss or strike Devine's amended
complaint (ECF No. 10). The court held a hearing and argument
on the motion on January 18, 2017. As discussed below and on
the record at the hearing, the motion will be granted in part
with respect to the scope of the claims asserted in the
amended complaint and denied in all other respects.
Rule of Civil Procedure 8(a)(2) requires that a complaint
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” A
complaint must plead facts sufficient at least to
“suggest” a basis for liability. Spruill v.
Gillis, 372 F.3d 218, 236 n.12 (3d Cir. 2004).
“Specific facts are not necessary; the statement need
only ‘give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(citations omitted). As noted by the Third Circuit Court of
Context matters in notice pleading. Fair notice under Rule
8(a)(2) depends on the type of case-some complaints will
require at least some factual allegations to make out a
“showing that the pleader is entitled to relief, in
order to give the defendant fair notice of what the ... claim
is and the grounds upon which it rests.” Indeed, taking
[Bell Atlantic Corp. v. Twomblv, 550 U.S. 544, 555
(2007)] and the Court's contemporaneous opinion in
Erickson v. Pardus, 127 S.Ct. 2197 (2007), together,
we understand the Court to instruct that a situation may
arise where, at some point, the factual detail in a complaint
is so undeveloped that it does not provide a defendant the
type of notice of claim which is contemplated by Rule 8. Put
another way, in light of Twombly, Rule 8(a)(2)
requires a “showing” rather than a blanket
assertion of an entitlement to relief. We caution that
without some factual allegation in the complaint, a claimant
cannot satisfy the requirement that he or she provide not
only “fair notice, ” but also the
“grounds” on which the claim rests.
Phillips v. County of Allegheny, 515 F.3d 224, 232
(3d Cir. 2008) (citations omitted).
motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of the
complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
Cir. 1993). While a complaint does not need detailed factual
allegations to survive a Rule 12(b)(6) motion to dismiss, a
complaint must provide more than labels and conclusions.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). A “formulaic recitation of the elements of a
cause of action will not do.” Id. (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
“Factual allegations must be enough to raise a right to
relief above the speculative level” and
“sufficient to state a claim for relief that is
plausible on its face.” Id.
working principles underlie Twombly. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). First, with respect to
mere conclusory statements, a court need not accept as true
all the allegations contained in a complaint.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555.) Second, to survive a motion to dismiss, a claim
must state a plausible claim for relief. Id. at 679.
“Determining whether a complaint states a plausible
claim for relief will ... be a content-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id.
motion to dismiss raises two main issues: (1) the timeliness
of the EEOC Charge; and (2) the scope of the EEOC Charge and
the claims in this case. Defendant also asks the court to
strike some of the averments of the amended complaint.
Timeliness of EEOC Charge
argues, first, that the EEOC Charge was untimely because it
was not filed within 300 days of the alleged discrimination.
Plaintiff alleges that she was terminated from her job on
June 2, 2012. On January 2, 2013, acting pro se, she faxed a
seven-page Intake Questionnaire to the EEOC. (Amended
Complaint, Exh. 1, ECF No. 9-1). On the last page of the form
she checked both Box 1 (to file a charge of discrimination)
and Box 2 (to talk to an EEOC employee before
deciding whether to file a charge). On the cover sheet,
Plaintiff stated that she is not good at filling out forms,
and wanted to get her “papers in on time.” (ECF
No. 9-1 at 1). On March 10, 2013, Devine sent a follow-up
letter to the EEOC, advising that she wanted them to move
forward on her case. (ECF No. 17-1). The EEOC prepared a Form
5 to formalize her charge, which Devine Dated: June 10, 2013.
The EEOC Charge listed a termination date of April 30, 2012.
ECF No. 11-1. Devine, acting pro se at that time, did not
correct that date. As part of EEOC's investigation,
Trumbull submitted a position statement that recognized that
Devine had worked on a project until June 1, 2012, but
nevertheless contended that the last date of alleged
discrimination in the EEOC Charge was April 30, 2012, such
that Devine's charge was untimely filed. ECF No. 17-2 at
argues: (1) the Intake Questionnaire and the March 10, 2013
letter cannot be viewed as the “charge” because
they did not clearly ask the EEOC to take action; and (2) the
date of the last discriminatory act alleged in the official
EEOC Charge was April 30, 2012. Trumbull argues that the
Intake Questionnaire in this case is ambiguous because Devine
checked both boxes. Thus, Trumbull calculates the relevant
time as running from April 30, 2012, to June 10, 2013 (the
date the formal EEOC Charge was signed), a total of 406 days.
response, Plaintiff argues that: (1) the Intake Questionnaire
must be interpreted broadly; (2) at this stage of the case,
all reasonable inferences must be drawn in her favor; and (3)
she is entitled to particular deference because she was pro
se and has ADHD. Plaintiff contends that the Intake
Questionnaire asked the EEOC to take action, particularly
when viewed in conjunction with the cover sheet and March 10,
2013 letter and that her actual termination date was June 2,
2012. Thus, Devine calculates the relevant time ...