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Devine v. Trumbull Corp.

United States District Court, W.D. Pennsylvania

January 23, 2017

KAREN DEVINE, Plaintiff,


          Joy Flowers Conti Chief United States District Judge

         Defendant 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.

         Standard of Review

         Federal 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 Appeals:

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).

         A 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.

         Two 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.


         Defendant's 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.

         1. Timeliness of EEOC Charge

         Defendant 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 6.

         Defendant 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.

         In 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 ...

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