United States District Court, W.D. Pennsylvania
CINDY L. ZANAGLIO, Plaintiff,
J.J. KENNEDY, INC. Defendant.
Barry Fischer, United States District Judge
before the Court is Defendant's Motion to Dismiss
Plaintiff's Demotion Claims and supporting briefing,
(Docket Nos. , ); Plaintiff's response in
opposition, (Docket Nos. , ); and Defendant's
reply, (Docket No. ). After careful consideration of the
parties' submissions; the standards governing motions to
dismiss set forth by the Supreme Court in Bell Atl. Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), and as articulated in
Third Circuit precedent, see, e.g., Connelly v.
Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016); and
for the following reasons, Defendant's Motion to Dismiss
Plaintiff's Demotion Claims, (Docket No. ), is
of background, Defendant removed this matter from the Court
of Common Pleas of Jefferson County to this Court on June 30,
2017. (Docket No. 1). In her Complaint, Plaintiff, who is
fifty-nine years old, alleges that she worked for Defendant,
which operates six ready-mix concrete plants, for ten years.
(Docket No. 1-2 at ¶¶ 1, 3-4). Plaintiff was
promoted to plant manager in 2008 and held the position until
2015. (Id. at ¶ 4). As was typical given the
seasonal nature of the concrete industry, Plaintiff was laid
off in October 2014. (Id. at ¶ 5). On May 1,
2015, Plaintiff met with Defendant's owner and/or
president, Paul Rader, Sr., who notified her that: “(i)
it is better to have a male as the plant manager given the
physical nature of the work; (ii) she would be re-assigned as
plant assistant and (ii) [sic] her pay would remain the
same.” (Id. at ¶ 6). Christopher Bowser,
who was thirty-five years old, replaced Plaintiff as the
plant manager. (Id. at ¶ 7). Plaintiff worked
as the plant assistant until she was laid off in August 2015,
at which time Mr. Rader informed her that the plant assistant
position was being eliminated but stated that she would be
called back in the spring, in some capacity. (Id. at
¶ 8). In October 2015, Plaintiff requested reimbursement
of her vacation pay until she could file a new unemployment
compensation claim. (Id. at ¶ 9; see
also Docket No. 1-2 at 12). In response, Defendant
stated that Plaintiff's suspension of her employment on
August 7, 2015, nullified her request for reimbursement and
that Defendant would make a one-time severance payment to
Plaintiff. (Id. at ¶ 10; see also
Docket No. 1-2 at 13). Plaintiff asserts four claims against
Defendant for gender discrimination under the Pennsylvania
Human Relations Act (“PHRA”); age discrimination
under the PHRA; discrimination under the Age Discrimination
in Employment Act of 1967 (“the ADEA”); and
discrimination under Title VII. (Id. at ¶¶
support of its Motion to Dismiss, Defendant argues that the
complaint Plaintiff filed with the Pennsylvania Human
Relations Commission (“PHRC”) was untimely under
the PHRA. (Docket No. 8 at 2-3). Defendant also asserts that
Plaintiff's claims related to the demotion under the ADEA
and Title VII were untimely filed with the Equal Employment
Opportunity Commission (“EEOC”). (Id. at
3-4). Finally, Defendant contends that Plaintiff's
demotion claims must be dismissed because her filings with
the PHRC only make claims of discrimination with respect to
her discharge. (Id. at 4-5). In response, Plaintiff
argues that 42 U.S.C. § 2000e-5(e)(3)(A) of the Lilly
Ledbetter Fair Pay Act of 2009 (“the FPA”)
applies and that the discriminatory harm she suffered accrued
until she was terminated. (Id. at 3-5). Plaintiff
admits “in candor, ” however, that she
“remains skittish” about the application of
§ 2000e-5(e)(3)(A), “given statutory language
suggestive of disparate impact cases.” (Id. at
5). Plaintiff also relies upon the discovery rule and
maintains that she was unaware that she suffered from
discriminatory practices until the date of her termination.
(Id. at 6-11). In reply, Defendant insists that
§ 2000e-5(e)(3)(A) and the discovery rule are
inapplicable. (Docket No. 11).
routinely and strictly apply the PHRA's 180-day
limitation period. See Hatten v. Bay Valley Foods,
LLC, No. 11-CV-1122, 2012 U.S. Dist. LEXIS 53622, at
*9-11 (W.D. Pa. Apr. 17, 2012) (applying the PHRA's 180
day filing limitation); Rhoades v. YWCA of Greater
Pittsburgh, No. 09-CV-1548, 2010 U.S. Dist. LEXIS
119008, at *8-14 (W.D. Pa. Nov. 9, 2010) (same);
Cunningham v. Freedom Ford Sales, Inc., No.
06-CV-205, 2007 U.S. Dist. LEXIS 60613, at *11-18 (W.D. Pa.
Aug. 17, 2007) (complaint filed with the PHRC was untimely
because the EEOC forwarded it after the expiration of the
180-day limitation period). “[T]he law of this Circuit
(the so-called ‘Third Circuit Rule') permits a
limitations defense to be raised by a motion under Rule
12(b)(6), but only if ‘the time alleged in the
statement of the claim shows that the cause of action has not
been brought within the statute of limitations.'”
Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir.
2002) (quoting Hanna v. U.S. Veterans' Admin.
Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)).
Plaintiff avers that she was demoted from plant manager to
plant assistant on May 1, 2015. (Docket No. 1-2 at ¶ 7).
She filed her initial complaint with the PHRC on January 1,
2016, and she filed an amended complaint with the PHRC on May
2, 2016. (Docket No. 8-2 at 1-12; see also Docket
No. 10 at 3). Thus, Plaintiff failed to file within the
180-day limitations period with respect to the demotion that
occurred on May 1, 2015. Woodson v. Scott Paper Co.,
109 F.3d 913, 925 (3d Cir. 1997) (“If a plaintiff fails
to file a timely complaint with the PHRC, then he or she is
precluded from judicial remedies under the PHRA. The
Pennsylvania courts have strictly interpreted this
requirement.”); Ryliskis v. Uniontown Area
Hosp., No. 11-CV-1517, 2012 U.S. Dist. LEXIS 132172, at
*19-20 (W.D. Pa. Aug. 30, 2012) (dismissing the
plaintiff's retaliation claim with prejudice because it
was filed 207 days after her alleged constructive discharge);
Lewis v. Fraternal Order of Police, 8 F.Supp.2d 481,
482 (E.D. Pa. 1998) (holding that the plaintiffs had failed
to exhaust their administrative remedies under the PHRA
because “[they] filed no administrative complaint
within the 180 day time limit required by the PHRA”).
Court rejects Plaintiff's arguments in opposition to
Defendant's motion to dismiss. Specifically, 42 U.S.C.
§ 2000e-5(e)(3)(A) of the FPA does not apply to
Plaintiff's demotion claim. See Noel v. Boeing
Co., 622 F.3d 266, 273-74 (3d Cir. 2010) (holding that
“the plain language of the FPA covers compensation
decisions and not other discrete employment
decisions”); see also Davis v. Bombardier Transp.
Holdings, Inc., 794 F.3d 266, 270 (2d Cir. 2015)
(“‘[T]he plain language of the [Ledbetter Act]
covers compensation decisions and not other discrete
employment decisions, ' such as hirings, firings,
promotions, and demotions” (quoting Noel, 622
F.3d at 274). Additionally, the discovery rule is
inapplicable to Plaintiff's demotion claim. With respect
to the discovery rule, the Court “look[s] to when,
through the ‘exercise of reasonable diligence, '
the injury would have been ‘knowable to the
plaintiff.'” Clarkson v. SEPTA, No.
16-2466, 2017 U.S. App. LEXIS 11440, at *5 (3d Cir. 2017)
(quoting Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1386 (3d. Cir 1994)); see also
Kepple v. GPU, Inc., 2 F.Supp.2d 730, 743 (W.D. Pa.
1998) (rejecting continuing violation theory because demotion
was a discrete incident). As discussed above, Plaintiff has
averred that she was demoted from plant manager to plant
assistant on May 1, 2015, (Docket No. 1-2 at ¶ 7), which
the Court finds is the date on which the injury would have
been “knowable to the plaintiff.”
Clarkson, 2017 U.S. App. LEXIS 11440, at *5
(internal quotations omitted). Moreover, “with respect
to equitable tolling, the plaintiff must diligently pursue
her rights and show ‘that some extraordinary
circumstance stood in [her] way.'” Id. at
*5-6 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). Plaintiff “fails to point to any circumstance,
let alone an extraordinary circumstance, that otherwise stood
in the way of the timely pursuance of her rights.”
Id. at *6.
Plaintiff's federal claims under the ADEA and Title VII,
the same are barred by the applicable statutes of
limitations. Before a plaintiff may bring ADEA and Title VII
claims in federal court, she must exhaust her administrative
remedies by presenting her claims to the EEOC. See
42 U.S.C. §§ 2000e-5(b), (f)(1); Alexander v.
Gardner-Denver Co., 415 U.S. 36, 47 (1974). In
Pennsylvania, an EEOC claim must typically be filed within
300 days of the unlawful employment practice. 42 U.S.C.
§ 2000e-5(e); 29 U.S.C. § 626(d)(2); Mikula v.
Allegheny Cnty., 583 F.3d 181, 185 (3d Cir. 2009)
(“Under Title VII, a claimant in Pennsylvania must file
a discrimination charge with the EEOC within 300 days of an
unlawful employment practice.”). In the instant case,
Plaintiff requested the PHRC to dual-file her claims with the
EEOC on May 2, 2016. (Docket No. 8-2 at 3-4). As discussed
above, Plaintiff's demotion occurred on May 1, 2015.
Accordingly, because Plaintiff did not file her claims with
respect to her demotion within 300 days, the same will be
these reasons, IT IS HEREBY ORDERED that Defendant's
Motion to Dismiss Plaintiff's Demotion Claims, (Docket
No. ), is GRANTED.
FURTHER ORDERED that Plaintiff's claims at Counts I and
II of Plaintiff's Complaint are DISMISSED, with
IT IS ORDERED that Plaintiff's claims with respect to her
demotion under the Age Discrimination in Employment Act and
Title VII of the 1964 Civil Rights Act at Counts III and IV
are DISMISSED, with prejudice.
 Although Plaintiff did not attach her
filings with the PHRC to her Complaint, Defendant provided
them as exhibits to its motion to dismiss. (Docket No. 8-2).
The Court may consider these undisputedly authentic documents
in deciding this motion without converting it into a motion
for summary judgment. See Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993) (holding that "a court may consider an
undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff's
claims are based on the document”); Colbert v.
Mercy Behavioral Health, 845 F.Supp.2d 633, 637 (W.D.
Pa. 2012) (noting that a court may consider an EEOC charge
attached to a motion to dismiss without converting the motion
into a motion for summary judgment). ...